CARB Enforcement Update

Last week, I closed the blog with the quote:  “If you think education is expensive, try ignorance.”  Well, let me encourage you again to get educated because CARB has released a summary of all settled enforcement actions against violations of their formaldehyde emission regulation.

“What CARB enforcement actions,” you ask?  “You mean there was something other than LL?”  Yup.  Just because you don’t hear about it on TV, doesn’t mean it’s not happening.  CARB’s notice said:

Following the record fine levied on Lumber Liquidators in 2016, the California Air Resources Board has continued to monitor the safety of consumer products like flooring and cabinets that use composite wood materials. As a result of this vigilance, CARB has settled 15 cases totaling more than $338,000 over the past two-and-a-half years with companies that failed to follow California’s clean air regulations for composite wood materials in a variety of everyday household products.

As you react to that number, I want to remind everyone that the EPA had one enforcement on their formaldehyde rule and the fine was over a half million. That’s right, the EPA collected more in one enforcement then CARB’s collected in fifteen. That was a case where ignorance was extremely expensive.

Let’s break down the public information on each settlement provided.  If I read through everything correctly:        

  • 12 out of 15 cases represented enforcement against laminate flooring
  • Companies included retailers, distributors, and importers
  • In 8 of the 12 flooring cases, CARB alleges that the subject products contained concentrations of formaldehyde exceeding the 0.11 ppm limit for MDF
  • 1 of the 12 flooring cases seems to be specifically an administration failure where CARB alleges the company failed to put a statement of compliance on their customer invoices or bill of ladings
  • For 3 of the 12 flooring cases, CARB alleges failures related to both emission levels and administration

  • The furniture case has a unique allegation.  There CARB alleges that the subject product contained MDF that was procured from a mill that did not have a third-party certification program and therefore does not meet the emission standard for MDF 
  • And finally, for 12 out of the 15 cases (and in ten of the flooring cases), CARB alleges that the companies failed to take reasonable prudent precautions

Failure to comply with the ATCM is a violation of state law subject to penalties up to $10,000 for each day that the violation occurs.  Most companies could have had penalties significantly greater than listed.  Some companies were identified as “out of compliance” for 100+ days and for multiple transactions.  However most appeared to be fined between $500-1000/day, and if they had inventory, discontinuing sales.  In most cases, the settlement specified that the penalty was reduced because this was a first-time violation and the company cooperated with the investigation but CARB went on to note that “penalties in future cases might be higher or lower on a daily basis based on relevant circumstances.

In addition to the fines, the companies “implemented new procedures when purchasing and receiving products to prevent non-compliant products being sold.”  

As part of the agreements, the companies acknowledged the allegations that CARB describes, but each company specifically “denies any liability resulting from said allegations.”  Further, CARB goes on to make it clear that when they alleged excessive emissions they were not offering specific information as to the level found.  Agreements referenced a statement that “a quantification of the excess emissions attributable to the violations was not practicable because the information necessary to do so, such as emissions rates and time of use, is not available.”

So what’s the takeaway?  Everyone in the chain has a responsibility to do it right.  Ask questions, check your labels, check your both your purchase orders and invoices.  Pick the companies you work with carefully, where-ever they are in the chain. 

This is more than important than ever.  Remember that if you are found having committed a prohibited act under TSCA section 15, you can be subject to civil penalties of up to $37,500 per day and criminal penalties of up to $50,000 per day. So get trained and set up procedures!

In their press release, CARB provides an excellent summary of the basic requirements:

CARB’s regulation applies to all composite wood manufacturers, importers, fabricators, distributors, and retailers selling in the state, and requires that:

• composite wood materials are produced in a mill that is third party certified;

• efforts taken to ensure materials are compliant are documented; and

• all products are labeled for compliance.

For more info, CARB has a good basic guide for retailers, the EPA has a great set of FAQs as well as other resources, and don’t forget that the IWPA is doing a class on formaldehyde fundamentals in two weeks in Nashville.

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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