Asking the Right Questions

As noted last week, we recently had our first major TSCA Title VI enforcement to the tun over a half million dollars.  The full details are available here and I encourage you to read them, but I’d like to point out a few take-aways.

Yes, this was for an imported product.  No, it was not from China. People are almost always going to assume the worst of Chinese production, but nope, not this time.  The material was from Turkey. 

You might guess it was found when the government did a random check on emissions.  Nope, the company actually self-disclosed that there was a problem when they ran into an issue at entry.  When their broker started the import process, the broker said “hey, all ok for TSCA, right?” and they asked “what’s TSCA?”  I’m not joking about this, it’s right in the court document:

                Respondent immediately investigated the reason for the import certification requirement and

discovered the existence of Part 770 and its applicability to the finished goods.

That’s right.  Incredibly, the company importing the product wasn’t even aware of TSCA Title VI.  They hadn’t specified TSCA compliant product or done due diligence to confirm that their suppliers were utilizing TSCA compliant panels.  That’s pretty amazing to me, but then again, I guess not everyone is obsessed with formaldehyde regulations like I am. 

The company is a large one, from what I can tell online.  But somehow they missed this despite years of articles in every industry publication—webinars and outreach by every major industry association.  Not just the NWFA—the kitchen folk, the plywood and panel folk, the furniture folk, etc., everyone has tried to tell their membership that this is a serious thing.  And somehow they missed it. How many of you out there still let your eyes glaze over when you see a blog header with the term TSCA in the title?  You can’t afford to do that!

What are you missing?  Have you asked your supplier some basic questions like “do you have a compliance program?”  “What are you doing to ensure the floor you sell me is TSCA compliant?”  “What about Lacey?”  “What about circumvention?”  “What sort of training have you taken to learn about these rules and regulations?” 

And ask yourself some questions.  Have you learned your label requirements?  Are you checking labels when stock comes in?  Do you have white box products in your warehouse?  Are you checking invoices for statements of compliance?  Have you changed your boilerplate on your own PO’s?  Everyone’s got responsibilities.

When we had the formaldehyde panel a year ago at the NWFA, with the EPA, the American Chemistry Council, Benchmark and the IWPA all presenting on TSCA, the crowd was pretty thin and there were very few retailers or distributors.  But lots of importers were there.  (One fellow had driven five hours just to attend that panel and then he headed back to his office after it was done.)  Those importers knew they’d be on the frontline of enforcement regarding this regulation and wanted to make sure they were prepared.  Most everyone else probably just assumed, “it’s not my problem” or “someone else is taking care of it.”  Well, it is your problem and you best know who is taking care of it!

Because you know what else is happening to the cabinets and vanities?  It’s not just a fine, but large portions of the product are being destroyed.  Construction on these apartments is being delayed at who knows what cost.  If you have a product in your warehouse that is found to be non-compliant, you may face a fine and confiscation….but think what it will be like if you have already installed non-compliant material.  Do you want to be that guy just “discovering” TSCA when the government comes knocking?

Time to start asking some questions. 

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Elizabeth Baldwin is Environmental Compliance Officer for Metropolitan Hardwood Floors. In her 25 plus year career in the wood industry has visited over 70 countries and hundreds of facilities of all sizes and types. She describes herself as a “jack of all wood trades.” Familiar with jungles of all sorts–having camped out along the Amazon and walked the halls of Congress–she blogs for the NWFA on both environmental and regulatory issues for educational and informational purposes only. Her blog is not intended and should not be construed as legal advice. Persons seeking legal advice on compliance with CARB, TSCA, the U.S. Lacey Act or any other law, regulation, or compliance requirement/claim should consult with the regulatory agency directly and/or a qualified legal professional.

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