Agreement Reached in Sierra Club Litigation

March 15, 2018

Earlier this week a Northern California federal district judge approved Sierra Club and EPA's joint proposed order on a new compliance date for the Formaldehyde Rule. The approved order did not show any changes from the submitted proposed order.

All parties involved in the litigation were able to successfully reach a stipulated agreement. You will recall the parties included the Sierra Club, the Environmental Protection Agency, KCMA, and other trade associations that filed amicus briefs. The joint agreement was filed in the Federal District Court of Northern California. Below is a brief summary of the main elements of the settlement: 

  1. Delay of entry of the vacatur: The Court’s stay will be lifted and the vacatur will go into effect on June 1, 2018
  2. New “Manufactured-by” Date (prospective application): The Court’s vacatur will be applied prospectively from June 1, which will be treated as the new manufactured-by date. This ensures that composite wood products and finished goods containing them that are produced between December 12, 2017 and June 1, 2018 are not treated as out of compliance with the regulation
  3. Sell-through preserved: The sell-through provision is preserved and will cover any panels and finished goods manufactured prior to the June 1, 2018 manufacture-by-date
  4. CARB reciprocity secured: EPA will recognize as TSCA Title VI compliant all CARB 2 certified panels and finished products made with those panels until March 22, 2019
  5. Labeling clarified: Panel manufacturers and finished goods manufacturers will be able to label their products made with CARB-2 certified panels as TSCA Title VI compliant during an interim period from June 1, 2018 – March 22, 2019

The points above in plain language:

  1. The manufactured by date now becomes June 1, 2018. Up until that date you can keep doing business as usual.  Cabinet companies can continue to use CWP made with either non-CARB Phase 2; CARB Phase 2 or TSCA Title VI material that was brought into the US or manufactured before June 1, 2018.  CARB Phase 2 is of course required if you are selling into the state of California
  2. On June 1, 2018 and through March 22, 2019 companies can only use CARB Phase 2 or TSCA Title VI compliant material and can label cabinets TSCA Title VI compliant using either compliant material;
  3. All material accepted into your facility after March 22, 2019 must be TSCA Title VI compliant and labeled as such