How Deep Do You Dig? The FER Edition.

Last week we considered how deeply you need to dig with Lacey. This week, let’s take a look at CARB and TSCA.

First, a quick review – remember “FER?” That’s Formaldehyde Emissions Regulations. And welcome to CANFER, the latest edition to the program, the CANadian FER. As the Canadians are still working on guidance, let’s set that one aside and focus on CARB and TSCA. This is going to be a highly simplified consideration of your responsibilities.

Basically, a certified manufacturer of plywood, MDF, or particleboard has to produce products that meet the emissions standard and do a lot of administrative work and undergo regular testing of their production. That testing is conducted both by their Third Party Certifier (TPC) and their own QC program.

Everyone else downstream has to follow an administrative burden based around the system of “ask for the good material” (on a purchase order usually) and making sure they get a “we’re sending you good stuff confirmation” (on the invoice or BL usually as well as proper labeling). No one downstream, not the laminators or fabricators, nor the importers, distributors, and retailers have an obligation to test the product. However all companies can be found responsible if the product exceeds the emissions level.

I’ve blogged in the past about CARB enforcement actions. They have gone after retailers and distributors when they found the product being sold exceeded emission levels. From what I can tell, a good percentage of the cases were against Dabblers.

So how deep do you go? Well, how confident are you that your material complies with the emissions standard? Are you doing random testing? Are you checking compliance records that might include invoices or QC tests or SOPs? Are you checking available equipment – it may not guarantee they are using the equipment, but if they don’t actually have it, it becomes an obvious problem!

And are you checking with the TPC about what oversight they are conducting? A good TPC is your first line of defense – do you know the TPCs in your supply chain? Does your TPC have a lab or are they outsourcing their testing? Outsourcing lab work is permitted but personally I find the TPCs with labs, on a whole, to have better understanding of the science and the details of the regs.

So like with Lacey, how deep you go depends on your comfort level.  For me, my definition of “Reasonable Prudent Precautions” includes visiting and coordinating with the TPCs, reviewing the certification of our mill’s core suppliers and back in the day when I casually hopped on planes, visiting many of the component suppliers.

Then I am reviewing actual invoices and purchasing records to confirm that our mills have specified and paid for certified material. Our in-house QC checks the inputs as they arrived at the factory for CARB/TSCA labels and proper marks on the panels as required by the regulation. They monitor inputs to ensure no confusion between approved component sources and unapproved material and we track lots utilized in all our floors. And yes, we conduct regular random testing of inputs and other production. We go deep, deeper then most. It’s more than is required, and maybe it’s not even enough, but it is the level we’ve determined is best and it certainly helps me sleep better at night.

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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