On Friday, U.S. District Court Judge Jeffrey White ruled for Sierra Club in its lawsuit challenging the delayed implementation of the Formaldehyde Emission Standards for Composite Wood Products regulation. The Court vacated the “Delay Rule” which had set the TSCA compliance date for December 12, 2018. At the same time, the Judge temporarily stayed the ruling until the parties can address the timely and effective implementation of the Court’s order.
Litigation Next Steps
- Parties (U.S. Department of Justice (DOJ), U.S. Environmental Protection Agency (EPA) & Sierra Club and Community Voice) will meet and confer to address the timely implementation of the Court’s order.
- Parties have until March 9, 2018 at 4:00 pm to provide the Court with either:
- Joint proposed submission; or
- Simultaneous briefing to address the timing for lifting the stay and expeditious implementation of the Court’s order.
Based on this schedule it is expected the court will consider these briefs after March 9, but not likely longer that 30 days. So it is possible that the stay be lifted in the days or weeks following March 9.
Compliance Date Changes – As a result of the Court’s ruling, the dates revert back to the originals. The compliance date under the order would now be:
|Before Delay Rule
|After Delay Rule||New Effective Dates
Based on District Court Vacating of the Delay Rule
|Practical Effect of District Court ruling|
|The date for the emission standards, recordkeeping, and labeling provisions||December 12, 2017||December 12, 2018||Date depends when Court lifts the stay – sometime after March 9, 2018||TSCA compliant product must ARRIVE in the US by this date.
|The date for import certification provisions||December 12, 2018||March 22, 2019||December 12, 2018||Import declarations on TSCA product will be required prior to import.|
|The date for laminated product producer provisions||December 12, 2023||March 22, 2024||December 12, 2023|
|The conclusion of the transition period for CARB Third-Party Certifiers (TPCs)||December 12, 2018||March 22, 2019||December 12, 2018||CARB TPCs must have completed their full TSCA approval by this date.|
Now that the correlation issue is resolved, importers and suppliers should move immediately to implement their TSCA compliance plan and transition to TSCA compliant product. For importers, this means companies must specify TSCA Title VI compliant products when ordering or purchasing from suppliers and maintain records to document that they have taken reasonable precautions to ensure compliance. For suppliers, this means working with your Third-Party Certifier on achieving TSCA certification and labeling product as TSCA Title VI compliant as appropriate.
EPA has prepared Compliance Guides for Mills, Fabricators and Laminated Product Producers, Importers Distributors and Retailers, and Accreditation Bodies and Third Party Certifiers with translations to Spanish, French, and Chinese. A list of EPA-accredited Third-Party Certifiers is available here.