Document B0pJmYvGqdoNvqvwwVLqR7VL

To: Cc: From: Sent: Subject: Jackson, Ryan[jackson.ryan@epa.gov] Beck, Nancy[Beck.Nancy@epa.gov] Cindy Squires Tue 11/7/2017 10:26:47 PM TSCA Formaldehyde Composite Wood Lawsuit Mr. Jackson, Thank you very much for today's meeting with the Administrator. I wanted to follow up on the item I mentioned to you briefly -- the lawsuit and motion that was filed last week in the Northern District of California by the Sierra Club (attached). Sierra Club is challenging the extension of time that EPA granted on the compliance dates in the Formaldehyde composite wood rule. This is one of the midnight rules that were automatically paused when the Trump Administration began. Later EPA extended the dates after notice and comment, in part to ensure that there was adequate time for all the necessary steps to take place before compliant product can be produced. In the meanwhile, there have been a number of critical technical issues that have been addressed by EPA. One of those technical issues (small chamber lab correlation) is currently open for comment under a direct final rule / proposed rule. We would like an opportunity to discuss with EPA our deep concerns if the Sierra Club litigation is successful. Put simply, if the court vacates the compliance date extension and the compliance date reverts back to Dec. 12, 2017 the industry will be unable to adjust. First, we must have the technical lab correlation issue corrected to be able to label product as TSCA compliant; and second, imported composite wood products are already on their way to the US and shipments without TSCA labels will land after Dec. 12th which puts importers, distributors, manufacturers and retailers in a very difficult position. We are hopeful that EPA will be vigorously defending its compliance date extension and stand ready to explain how this lawsuit will impact industry. Our members are keen to purchase TSCA compliant panels and products. We are carefully working through the regulation to ensure our suppliers are ready. Most are already producing products that meet the TSCA and CARB emission limits. However, all the pieces must be in place before panel producers and fabricators can label their product as TSCA compliant. IWPA requested and EPA agreed to allow for early compliance so that firms could change over products in an orderly manner. Thus, we support getting product properly labeled and produced as TSCA compliant as soon as feasible. We just need to have time to make that happen. 17cv1906 Sierra Club v. EPA ED_001523_00001984-00001 Please let me know when we might have a phone call or meeting to discuss further. Cindy L. Squires, Esq Executive Director International Wood Products Association 4214 King Street | Alexandria, VA 22302 | USA O: 703-820-6696 | M: 703-489-5126 | Skype: CindyLSquires | IWPA's mission is to build acceptance and demand in North America for globally sourced wood products from sustainably managed forests. 17cv1906 Sierra Club v. EPA ED_001523_00001984-00002 Case 3:17-cv-06293 Document 1 Filed 10/31/17 Page 1 of 17 1 PATTI A. GOLDMAN (WSBA # 24426) [Pro Hac Vice Admission Pending] 2 ASHLEY N. BENNETT (DCBA# 1044215) 3 [Pro Hac Vice Admission Pending] Earthjustice 4 705 Second Avenue, Suite 203 Seattle, WA 98104 5 Ph: (206) 343-7340 | Fax: (206) 343-1526 6 pgoldman@earthjustice.org abennett@earthjustice.org 7 MONEEN S. NASMITH (NYSBA# 442704) 8 [Pro Hac Vice Admission Pending] 9 Earthjustice 48 Wall St., Floor 19 10 New York, NY 10005 Ph: (212) 845-7376 11 mnasmith@earthjustice.org 12 STACEY P. GEIS (CSBA# 181444) 13 Earthjustice 50 California, Suite 500 14 San Francisco, CA 94111 15 Ph: (415) 217-2000 | Fax: (415) 217-2040 sgeis@earthjustice.org 16 Attorneys for Plaintiffs Sierra Club and 17 A Community Voice-Louisiana 18 19 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 20 SAN FRANCISCO DIVISION 21 SIERRA CLUB, and A COMMUNITY VOICE- ) Civ. No. 22 LOUISIANA ) Plaintiffs, ) 23 ) COMPLAINT FOR DECLARATORY 24 v 25 SCOTT PRUITT, in his official capacity as ) AND VACATUR RELIEF ) ) Administrator of the United States Environmental ) 26 Protection Agency, ) 27 Defendant. ) 28 ________________________________________ ) COMPLAINT FOR DECLARATORY AND VACATUR RELIEF -1- Earthjustice 705 SecondAve., Suite 203 Seattle, WA 98104 (206) 343-7340 17cv1906 Sierra Club v. EPA ED 001523 00001985-00001 Case 3:17-cv-06293 Document 1 Filed 10/31/17 Page 2 of 17 1 2 INTRODUCTION 3 1. This action concerns two rules recently promulgated by the Environmental 4 Protection Agency ("EPA") implementing the Formaldehyde Standards in Composite Wood 5 6 Products Act. 15 U.S.C. 2697 (the "Formaldehyde Act," codified as Title VI of the Toxics 7 Substances Control Act ("TSCA")). The first rule established emission standards for 8 formaldehyde in composite wood products and associated testing and compliance mechanisms. 9 81 Fed. Reg. 89674 (Dec. 12, 2016) (the "Formaldehyde Rule"). EPA signed this rule in July 10 2016 and published it in the Federal Register on December 12, 2016. The second rule extended 11 12 the Formaldehyde Rule's compliance dates so that the first compliance deadline is December 12, 13 2018, one year later than the December 12, 2017 deadline in the Formaldehyde Rule and more 14 than three years after the Formaldehyde Act directed EPA to require compliance. 82 Fed. Reg. 15 44533 (Sept. 25, 2017) (the "Formaldehyde Delay Rule"). 16 2. The Formaldehyde Delay Rule violates and exceeds EPA's statutory authority. In 17 18 2010, Congress enacted the Formaldehyde Act directing EPA to promulgate a rule setting 19 emission standards for formaldehyde in composite wood products and associated testing and 20 certification procedures. 15 U.S.C. 2697. Congress limited EPA's discretion by prescribing 21 and establishing mandatory deadlines for the core emission standards. EPA had until January 1, 22 2013 to promulgate the emissions standards and 180 days after the rule's promulgation to require 23 24 compliance for three types of wood products. By extending the compliance deadlines for these 25 wood products far beyond 180 days of promulgation of the Formaldehyde Rule and years after 26 the congressional 2013 deadline, the Formaldehyde Delay Rule is in blatant violation of 15 27 U.S.C. 2697(b)(1), exceeds EPA's statutory authority, and is unlawful. 28 COMPLAINT FOR DECLARATORY AND VACATUR RELIEF - 2 - Earthjustice 705 SecondAve., Suite 203 Seattle, WA 98104 (206) 343-7340 17cv1906 Sierra Club v. EPA ED_001523_00001985-00002 Case 3:17-cv-06293 Document 1 Filed 10/31/17 Page 3 of 17 1 3. EPA also acted arbitrarily, capriciously, and contrary to 15 U.S.C. 2697(b)(1) in 2 extending the compliance deadlines for three types of wood products until December 12, 2018. 3 EPA never addressed the statutory compliance deadlines. It sought to reduce inconvenience to 4 the regulated entities and downplayed the adverse health effects of delaying compliance when 5 6 Congress made protecting public health paramount. EPA acted in blatant disregard of the 7 Formaldehyde Act, Congress's intent to put the standards in place expeditiously in order to 8 protect public health, and EPA's findings in the formaldehyde rulemaking that requiring 9 expeditious compliance has substantial health benefits and will protect children from 10 disproportionate harm from formaldehyde exposures. 11 12 4. Plaintiffs seek an order declaring the Formaldehyde Delay Rule contrary to, and 13 in excess of EPA's authority under the Formaldehyde Act, 15 U.S.C. 2697(b)(1), and an order 14 vacating and setting aside the Formaldehyde Delay Rule's extension of the December 12, 2017 15 compliance deadlines for one year. 16 17 PARTIES 18 5. Plaintiff Sierra Club is a non-profit organization incorporated in California with 19 its headquarters in Oakland, California. Its mission is to protect and preserve the natural and 20 human environment. After Hurricane Katrina, many of Sierra Club's members became ill from 21 formaldehyde emissions in trailers supplied by the Federal Emergency Management Agency 22 ("FEMA") as temporary housing for people whose homes had been destroyed. Sierra Club 23 24 arranged for testing of many of the trailers and found alarmingly high emissions. It provided this 25 information to FEMA and advocated for FEMA to conduct testing and to relocate people living 26 in the trailers. In addition to testing FEMA trailers, Sierra Club disseminated information to its 27 members and communities about harm from formaldehyde emissions in the trailers and about 28 COMPLAINT FOR DECLARATORY AND VACATUR RELIEF - 3 - Earthjustice 705 SecondAve., Suite 203 Seattle, WA 98104 (206) 343-7340 17cv1906 Sierra Club v. EPA ED_001523_00001985-00003 Case 3:17-cv-06293 Document 1 Filed 10/31/17 Page 4 of 17 1 ways to reduce their risks. It devoted organizational resources to performing functions that the 2 government should be, but was not performing. It conducted extensive advocacy to compel the 3 government to protect people from formaldehyde emissions from wood products. This advocacy 4 included petitioning EPA to adopt limits on formaldehyde emissions from composite wood 5 6 products and submitting numerous comments to EPA in support of the proposals to adopt such 7 standards. 8 6. The Sierra Club files this lawsuit on behalf of itself and its members. The Sierra 9 Club has more than 829,000 members nationwide, including many thousands of members who 10 are particularly susceptible to harm from formaldehyde emissions and who live in areas recently 11 12 impacted by natural disasters. 13 7. Plaintiff A Community Voice-Louisiana ("ACV") is a non-profit community 14 organization dedicated to fighting for social and economic justice for low to moderate income 15 families in southern Louisiana. The organization conducts training sessions, runs campaigns, 16 and undertakes other outreach efforts to assist its members and raise broader public awareness 17 18 about the concerns of southern Louisiana's lower income families. ACV has been actively 19 engaged in helping lower income neighborhoods in the area recover from the impacts of 20 Hurricane Katrina and avoid further threats to their health and well-being. Many of ACV's 21 members were housed in FEMA trailers in the wake of the storm and were exposed to elevated 22 levels of formaldehyde. 23 24 8. ACV files this lawsuit on behalf of itself and its members. ACV has many 25 members who have young children, are elderly, have previously been exposed to elevated levels 26 of formaldehyde, and have respiratory ailments and therefore are particularly susceptible to 27 28 COMPLAINT FOR DECLARATORY AND VACATUR RELIEF - 4 - Earthjustice 705 SecondAve., Suite 203 Seattle, WA 98104 (206) 343-7340 17cv1906 Sierra Club v. EPA ED_001523_00001985-00004 Case 3:17-cv-06293 Document 1 Filed 10/31/17 Page 5 of 17 1 exposure to additional formaldehyde emissions. ACV's members also all live in an area that still 2 is struggling to rebuild after Hurricane Katrina. 3 9. Plaintiffs' members include people who are sensitive to formaldehyde exposures 4 because of past harm to their health from formaldehyde exposures, existing health conditions like 5 6 asthma, or being in vulnerable populations like children and the elderly. Plaintiffs' members 7 who live in areas impacted by natural disasters will be exposed to construction, rebuilding, and 8 new furnishings that contain composite wood products. Plaintiffs' members include people who 9 live in housing, work in buildings, or whose children attend day care or school in buildings that 10 are having repairs or new construction or new furnishings using composite wood products. 11 12 10. If EPA had required compliance with limits on formaldehyde emissions from 13 composite wood products in accordance with the Formaldehyde Act, newly manufactured or 14 imported composite wood products would need to comply with the emissions standards by 15 December 12, 2017. While finished goods could use wood products manufactured prior to 16 December 12, 2017, the existing stocks of wood products with higher formaldehyde emissions 17 18 would be fixed and start to be depleted. 19 11. Plaintiffs' members depend on this regulation being in place to protect themselves 20 and their families from formaldehyde emissions above the EPA standards in their homes, 21 workplaces, schools, and day cares. Plaintiffs' members do not control which composite wood 22 products will be used in construction, rebuilding, furnishings, and cabinetry to which they are 23 24 exposed. They do not receive notice that wood products with higher emissions have been used 25 or installed in their rental housing, their workplaces, or where their children go to school or day 26 care. 27 28 COMPLAINT FOR DECLARATORY AND VACATUR RELIEF - 5 - Earthjustice 705 SecondAve., Suite 203 Seattle, WA 98104 (206) 343-7340 17cv1906 Sierra Club v. EPA ED_001523_00001985-00005 Case 3:17-cv-06293 Document 1 Filed 10/31/17 Page 6 of 17 1 12. Delaying compliance with the Formaldehyde Rule beyond the timeline allowed 2 by Congress has injured and continues to injure both the Sierra Club and A Community Voice 3 and their members. Granting the requested relief would redress these injuries by stopping the 4 manufacture and import of wood products with higher emissions and fixing and starting the 5 6 depletion of the supply of wood products used in finished goods and other products in 7 widespread distribution. 8 13. Defendant Scott Pruitt is the Administrator of the United States Environmental 9 Protection Agency, the federal agency charged with issuing regulations to implement the 10 Formaldehyde Act and that is constrained by the Act's mandatory provisions and limitations on 11 12 that authority. 13 JURISDICTION AND VENUE 14 14. This Court has jurisdiction over this action pursuant the 28 U.S.C. 133 l(federal 15 question jurisdiction). Venue is proper because Sierra Club is incorporated in California and has 16 its principal place of business in this district. 28 U.S.C. 1391(e)(1). 17 18 BACKGROUND 19 I. 20 THE HEALTH RISKS OF FORMALDEHYDE AND THE HARMFUL EXPOSURES EXPERIENCED BY PEOPLE HOUSED IN EMERGENCY TRAILERS AFTER HURRICANE KATRINA. 21 15. 22 odor. 23 24 16. Formaldehyde is a colorless, flammable gas at room temperature with a strong Formaldehyde is classified as a known human carcinogen by the National 25 Toxicology Program based on evidence in animal and human studies. It is known to cause 26 cancer in the upper respiratory tract, specifically nasopharyngeal cancer. The National 27 Toxicology Program and the National Research Council have identified formaldehyde as causing 28 COMPLAINT FOR DECLARATORY AND VACATUR RELIEF - 6 - Earthjustice 705 SecondAve., Suite 203 Seattle, WA 98104 (206) 343-7340 17cv1906 Sierra Club v. EPA ED_001523_00001985-00006 Case 3:17-cv-06293 Document 1 Filed 10/31/17 Page 7 of 17 1 myeloid leukemia, and the International Agency for Research on Cancer conducted an 2 assessment concluding that formaldehyde causes leukemia. 3 17. Formaldehyde is a sensory irritant. Eye, nose, and throat irritations, even from 4 formaldehyde exposures of relatively short duration, have been documented in a range of 5 6 epidemiology and human studies. 7 18. Formaldehyde exposure is associated with a range of respiratory effects. It can 8 irritate the respiratory tract, decrease pulmonary function, increase the risk of asthma and allergic 9 conditions, especially in children, and increase the severity of childhood asthma attacks. 10 19. Epidemiology studies document an association between formaldehyde exposure 11 12 and adverse reproductive outcomes in women, including reduced fertility. 13 20. Formaldehyde is produced on a large scale worldwide. One major use includes 14 the production of wood binding adhesives and resins used in the manufacture of composite wood 15 products (i.e., hardwood plywood, medium-density fiberboard, and particleboard). Composite 16 wood products are widely used in paneling, flooring, cabinets, furniture, countertops, molding, 17 18 and door skins. 19 21. The hazards of formaldehyde emissions from composite wood products came to 20 the fore when people displaced by Hurricane Katrina and other disasters were housed in trailers 21 provided by the FEMA. Many of the occupants of the FEMA trailers experienced nosebleeds, 22 headaches, eye and skin irritation, and other ailments. Testing by the Centers for Disease 23 24 Control ("CDC") documented higher levels of formaldehyde than are typical indoors in the 25 United States. Because of serious health concerns, most of the displaced people were eventually 26 moved out of the FEMA trailers, although the trailers continue to be used as housing in other 27 parts of the country. 28 COMPLAINT FOR DECLARATORY AND VACATUR RELIEF - 7 - Earthjustice 705 SecondAve., Suite 203 Seattle, WA 98104 (206) 343-7340 17cv1906 Sierra Club v. EPA ED_001523_00001985-00007 Case 3:17-cv-06293 Document 1 Filed 10/31/17 Page 8 of 17 1 22. In 1992, the California Air Resources Board ("CARB") designated formaldehyde 2 as a toxic air contaminant with no safe level of exposure. This designation requires CARB to 3 take action to reduce human exposure to this toxic air contaminant. Spurred by the FEMA 4 trailers debacle, CARB initiated a formal rulemaking in which it found that formaldehyde is a 5 6 respiratory irritant and carcinogen and that one of the major sources of exposure is from 7 inhalation of formaldehyde emitted from composite wood products containing urea 8 formaldehyde resins. 9 23. In 2008, California adopted an Airborne Toxics Control Measure ("ATCM") to 10 reduce formaldehyde emissions from hardwood plywood, particleboard, and medium-density 11 12 fiberboard and finished goods (such as cabinets and furniture) made with composite wood 13 products. It phased in the new emissions standards, requiring compliance between July 1, 2009 14 and July 1, 2012, depending on the particular wood product. Manufacturers must demonstrate 15 compliance with the standards through emissions tests and quality control processes certified by 16 a third-party certifier. 17 Cal. Code Reg. 93120-93120.12. CARB estimated that its emission 17 18 standards would reduce formaldehyde exposures in California by 58% by 2013 and would 19 reduce childhood cancers by 9-26 and lifetime cancer cases by 35-97 per million, 20 https ://www.arb.ca.gov/toxics/compwood/factsheet.pdf. 21 24. In 2008, the Sierra Club, joined by 25 other organizations and about 5,000 22 individuals, petitioned EPA to adopt the CARB standards under TSCA. EPA declined to adopt 23 24 the CARB standards because it did not have sufficient information to make the stringent findings 25 then required under TSCA to regulate exposure to chemicals. 73 Fed. Reg. 36504 (June 27, 26 2008). EPA initiated a proceeding to begin gathering information that could provide the basis 27 for adopting and even going beyond he CARB standards. Id. 28 COMPLAINT FOR DECLARATORY AND VACATUR RELIEF - 8 - Earthjustice 705 SecondAve., Suite 203 Seattle, WA 98104 (206) 343-7340 17cv1906 Sierra Club v. EPA ED_001523_00001985-00008 Case 3:17-cv-06293 Document 1 Filed 10/31/17 Page 9 of 17 1 II. 2 THE 2010 LAW DIRECTING EPA TO ADOPT FORMALDEHYDE EMISSIONS STANDARDS FOR COMPOSITE WOOD PRODUCTS ON AN EXPEDITIOUS BASIS. 3 25. Congress enacted the Formaldehyde Act in 2010 to establish national limits on 4 formaldehyde emissions from composite wood products because of the chemical's known 5 6 adverse effects on human health and its wide use in a variety of consumer products made of 7 composite wood such as cabinetry and household furnishings. S. Rep. No. 111-169, at 1 (2010) 8 see also H. R. Rep. No. 111-509, pt. 1, at 7-8 (2010). 9 26. The Act directs EPA to adopt formaldehyde emissions standards for hardwood 10 plywood, particleboard, and medium-density fiberboard manufactured, sold, or imported into the 11 12 United States that must be equivalent to the standards in the CARB Airborne Toxic Control 13 Measure. 15 U.S.C. 2697(b)(1). The Act leaves EPA no discretion to change those standards 14 and requires EPA to adopt implementing regulations that would ensure expeditious compliance 15 with them. 16 27. The Act directs EPA to determine based on all available and relevant information 17 18 to determine whether to exempt engineered veneer and laminated products from the term 19 "hardwood plywood," subject to the emissions standards, id. 2697(a)(3)(C)(I), and to include 20 various provisions in the implementing regulations, such as labeling, chain-of-custody 21 requirements, sell-through provisions, third-party testing and certification, and recordkeeping 22 requirements. Id. 2697(d)(2). 23 24 28. The Formaldehyde Act directs EPA to finalize emission standards by January 1, 25 2013, id. 2697(d)(1), and to ensure that, within 180 days after promulgation, those standards 26 "shall apply to hardwood plywood, medium-density fiberboard, and particleboard sold, supplied, 27 28 COMPLAINT FOR DECLARATORY AND VACATUR RELIEF - 9 - Earthjustice 705 SecondAve., Suite 203 Seattle, WA 98104 (206) 343-7340 17cv1906 Sierra Club v. EPA ED_001523_00001985-00009 Case 3:17-cv-06293 Document 1 Filed 10/31/17 Page 10 of 17 1 offered for sale, or manufactured in the United States," except for an applicable sell-through 2 regulation. Id. 2697(b)(1). 3 29. The EPA Administrator may adopt sell-through regulations governing composite 4 wood products and finished goods that contain regulated composite wood products, including 5 6 recreational vehicles, manufactured homes, and modular homes. Such regulations can provide 7 that any inventory of such products or finished goods are not subject to the emissions standards if 8 they are manufactured before a specified date of manufacture, rather than based on the date of 9 sale. Id. 2697(d)(3)(A). Sell-through regulations must prohibit the stockpiling of inventory to 10 be sold after the date of manufacturing. Id. 2697(d)(3)(B). Stockpiling is defined as the 11 12 manufacture or purchase of a composite wood product or finished good between July 7, 2010 13 and 180 days after promulgation of the regulations that is greater than the rate prior to July 7, 14 2010. Id. 2697(d)(3)(C). 15 30. Under TSCA, the term "manufacture" includes import. Id. 2602(9). The 16 Formaldehyde Act directs EPA, in coordination with the Commissioner of the U.S. Customs and 17 18 Border Protection to revise regulations related to imported products as necessary to ensure 19 compliance with the Act no later than July 1, 2013. Id. 2697(b)(4). 20 31. Congress set tight timelines for compliance because the regulated industry had 21 represented that a significant portion of the domestic industry is complying with the California 22 standards. H. R. Rep. No. 111-509, pt. 1, at 15 (2010); Cong. Budget Office, Cost Estimate of S. 23 24 1660 Formaldehyde Standards for Composite Wood Products Act (January 7, 2010), 25 https://www.cbo.gov/publication/41906. Congress sought to eliminate the competitive 26 advantage that foreign suppliers not subject to the California standards had in the market and 27 28 COMPLAINT FOR DECLARATORY AND VACATUR RELIEF -10- Earthjustice 705 SecondAve., Suite 203 Seattle, WA 98104 (206) 343-7340 17cv1906 Sierra Club v. EPA ED_001523_00001985-00010 Case 3:17-cv-06293 Document 1 Filed 10/31/17 Page 11 of 17 1 prevent lower-cost imports with high formaldehyde emissions. H. R. Rep. No. 111-509, pt. 1, at 2 7-9, 14-15; 156 Cong. Rec. H4704 (daily ed. June 23, 2010) (statement of Rep. Matsui). 3 III. 4 5 6 PROMULGATION OF THE FORMALDEHYDE RULE ESTABLISHING FORMALDEHYDE EMISSION STANDARDS AND THIRD-PARTY CERTIFICATION. 32. In June 2013, EPA proposed two rules. One of the rules proposed formaldehyde 7 emissions standards and implementing measures. 78 Fed. Reg. 34820 (June 10, 2013). The 8 other proposed a framework for the third-party certification program. 78 Fed. Reg. 34796 (June 9 10, 2013). 10 33. On July 27, 2016, EPA signed the Formaldehyde Rule combining and finalizing 11 12 both of the proposed rules. EPA issued a press release in which the EPA Assistant Administrator 13 for the Office of Chemical Safety and Pollution Prevention heralded issuance of the final rule to 14 protect the public from exposure to formaldehyde, stating: 15 We are carrying out important measures laid out by Congress to protect the public from 16 harmful exposures of this widely used chemical found in homes and workplaces. . . .The new rule will level the playing field for domestic manufacturers who have a high rate of 17 compliance with the California standard and will ensure that imported products not 18 subject to California's requirements will meet the new standard and thus, not contain dangerous formaldehyde vapors. 19 EPA News Release, EPA Issues Final Rule to Protect the Public from Exposure to Formaldehyde: 20 21 Agency Implements Congressionally Enacted Formaldehyde Emission Standards (July 27, 2016) 22 (available at https://www.epa.gov/newsreleases/epa-issues-final-rule-protect-public-exposure- 23 formaldehyde). 24 34. The Formaldehyde Rule codifies the California standards as directed by the 2010 25 Formaldehyde Act. EPA decided not to exempt various wood veneer laminated products in 26 27 which wood veneer is glued to the composite wood products that are subject to the emissions 28 COMPLAINT FOR DECLARATORY AND VACATUR RELIEF -11- Earthjustice 705 SecondAve., Suite 203 Seattle, WA 98104 (206) 343-7340 17cv1906 Sierra Club v. EPA ED_001523_00001985-00011 Case 3:17-cv-06293 Document 1 Filed 10/31/17 Page 12 of 17 1 standards. The rule also established testing, certification, recordkeeping, and other implementing 2 mechanisms. 3 35. The Formaldehyde Rule signed in July 2016 specified an effective date of 60 days 4 after publication of the rule in the Federal Register and a compliance deadline for the composite 5 6 wood product emissions standards of one year after publication. Compliance with import 7 certification requirements would be required two years after publication and laminated wood 8 products would be required to comply with the emissions standards seven years after publication. 9 36. Even though the Formaldehyde Rule was signed in July 2016, it was not 10 published in the Federal Register until December 12, 2016. As published, it had an effective 11 12 date of February 10, 2016, and required compliance with the emission standards for composite 13 wood products by December 12, 2017. 81. Fed. Reg. 89674 (Dec. 12, 2016.) 14 IV. VARIOUS MANEUVERS TO DELAY THE FORMALDEHYDE RULE. 15 37. On inauguration day, the newly installed President directed agencies to freeze 16 regulations that had been published in the Federal Register, but had not yet gone into effect. 17 18 Following that directive, EPA issued an omnibus final rule delaying the effective dates of 30 19 listed regulations until March 21, 2017. 82 Fed. Reg. 8499 (Jan. 26, 2017). The table listing the 20 rules included the Formaldehyde Rule. Id. at 8500. EPA did not comply with notice-and- 21 comment rulemaking requirements in issuing this rule delaying the effective dates. 22 38. On March 20, 2017, EPA published another final rule delaying the effective dates 23 24 of a series of rules, including the Formaldehyde Rule, for another 60 days until May 22, 2017. 25 82 Fed. Reg. 14324 (Mar. 20, 2017). EPA again sidestepped notice-and-comment rulemaking 26 procedures in issuing this second delay rule. 27 28 COMPLAINT FOR DECLARATORY AND VACATUR RELIEF - 12 - Earthjustice 705 SecondAve., Suite 203 Seattle, WA 98104 (206) 343-7340 17cv1906 Sierra Club v. EPA ED_001523_00001985-00012 Case 3:17-cv-06293 Document 1 Filed 10/31/17 Page 13 of 17 1 39. EPA issued no further rules delaying the Formaldehyde Rule's effective date, and 2 the rule went into effect on May 22, 2017. 3 40. With the Formaldehyde Rule in effect, EPA turned its attention to delaying the 4 compliance deadlines. On May 24, 2017, EPA published both a direct final rule and a proposed 5 6 rule proposing to extend the Formaldehyde Rule's compliance deadlines by an amount of time 7 equal to the delay in the effective date of the Formaldehyde Rule, a delay of a little more than 8 three months. 82 Fed. Reg. 23735 (May 24, 2017); 82 Fed. Reg. 23769 (May 24, 2017). The 9 direct final and proposed rules justified this delay to allow regulated entities time to establish 10 business relationships, reduce compliance burdens, and prevent disruptions in the supply chain. 11 12 41. EPA pursued a direct final rule because it believed the extension of the 13 compliance deadlines would be noncontroversial and would generate no adverse comments. 14 After EPA received adverse comments, EPA withdrew the direct final rule. 15 42. Some importers of wood products urged EPA to extend the compliance deadlines 16 beyond the proposed three months. See Comments of International Wood Products Association 17 18 (represents importers of wood and wood products), available at 19 https://www.regulations.gov/document?D=EPA-HQ-OPPT-20 17-0244-0011; Furniture Values 20 International, LLC (furniture importer), available at 21 https ://www.regulations.gov/document?D=EPA-HQ-OPPT-2017-0244-0005 . 22 43. On September 25, 2017, EPA published the Formaldehyde Delay Rule delaying 23 24 the compliance deadlines in the Formaldehyde Rule. 82 Fed. Reg. 44533 (Sept. 25, 2017). EPA 25 delayed some of the compliance deadlines by a period of time commensurate with the amount of 26 time the Formaldehyde Rule's effective date had been delayed, a period of slightly more than 27 three months. For one set of deadlines, however, it went further. EPA delayed all of the 28 COMPLAINT FOR DECLARATORY AND VACATUR RELIEF -13- Earthjustice 705 SecondAve., Suite 203 Seattle, WA 98104 (206) 343-7340 17cv1906 Sierra Club v. EPA ED_001523_00001985-00013 Case 3:17-cv-06293 Document 1 Filed 10/31/17 Page 14 of 17 1 compliance deadlines associated with the formaldehyde emissions standards for hardwood 2 plywood, particleboard, and medium-density fiberboard for an entire year beyond the December 3 12, 2017 compliance deadline in the Formaldehyde Rule. The Formaldehyde Delay Rule 4 reiterated EPA's desire to reduce compliance burdens, provide regulatory flexibility to regulated 5 6 entities, and prevent disruptions in the supply chain. Id. at 44533. It called the new compliance 7 deadlines "a balanced and reasonable timeline" and stated that it "believes extending this 8 compliance date reflects Congressional intent under TSCA Title VI that the agency implement 9 provisions to ensure compliance with the formaldehyde emissions standards as soon as possible 10 while enabling regulated entities to achieve compliance." Id. at 44534. EPA never mentioned 11 12 the Formaldehyde Act's direction to require compliance within 180 days of promulgating the 13 Formaldehyde Rule. 14 44. EPA stated that it does not believe the delay would result in any significant 15 increases in health risk because a majority of wood products conform to the CARB standards. 16 Id. at 44534-35. Even though both Congress and EPA have long estimated high compliance 17 18 rates among domestic manufacturers, EPA never assessed the risks posed by the non-CARB 19 compliant wood products, which had been the motivation for the direction in the Formaldehyde 20 Act. 21 CAUSE OF ACTION 22 45. Both the Formaldehyde Rule and the Formaldehyde Delay Rule are final agency 23 24 actions within the meaning of the Administrative Procedure Act. 5 U.S.C. 704. 25 46. EPA promulgated the Formaldehyde Rule when it published the rule in the 26 Federal Register on December 12, 2016. The Formaldehyde Rule codified the emissions 27 standards mandated in the Formaldehyde Act, 15 U.S.C. 2697(b)(2). 28 COMPLAINT FOR DECLARATORY AND VACATUR RELIEF - 14 - Earthjustice 705 SecondAve., Suite 203 Seattle, WA 98104 (206) 343-7340 17cv1906 Sierra Club v. EPA ED_001523_00001985-00014 Case 3:17-cv-06293 Document 1 Filed 10/31/17 Page 15 of 17 1 47. Pursuant to 15 U.S.C. 2697(b)(1), EPA had a legal duty to ensure that "effective 2 beginning on the date that is 180 days after the date of promulgation . . the emissions standards 3 described in paragraph (2) shall apply to hardwood plywood, medium-density fiberboard, and 4 particleboard sold, supplied, offered for sale, or manufactured in the United States." 5 6 48. In promulgating the Formaldehyde Delay Rule, EPA never addressed the 7 mandates in 15 U.S.C. 2697(b)(1) to make the emissions standards "effective beginning on the 8 date that is 180 days after the date of promulgation" for hardwood plywood, medium-density 9 fiberboard, and particleboard sold, supplied, offered for sale, or manufactured in the United 10 States. EPA stated that it "believes extending this compliance date reflects Congressional intent 11 12 under TSCA Title VI that the agency implement provisions to ensure compliance with the 13 formaldehyde emissions standards as soon as possible while enabling regulated entities to 14 achieve compliance." 82 Fed. Reg. 44534. This belief and rationale for the Formaldehyde 15 Delay Rule runs directly contrary to the direction in the Formaldehyde Act, 15 U.S.C. 16 2697(b)(1). 17 18 49. By delaying the compliance dates for the designated emissions standards until 19 December 12, 2018, EPA exceeded its authority under 15 U.S.C. 2697(b)(1), in violation of 5 20 U.S.C. 706(2)(C), which makes it unlawful for agencies to take actions "in excess of their 21 statutory jurisdiction, authority, or limitations, or short of statutory right." 22 50. By delaying the compliance dates for the designated emissions standards until 23 24 December 12, 2018, EPA acted arbitrarily, capriciously, and contrary to the Formaldehyde Act, 25 15 U.S.C. 2697(b)(1), in violation of the Administrative Procedure Act, 5 U.S.C. 706(2)(A). 26 REQUEST FOR RELIEF 27 Plaintiffs respectfully request that this Court grant the following relief: 28 COMPLAINT FOR DECLARATORY AND VACATUR RELIEF -15- Earthjustice 705 SecondAve., Suite 203 Seattle, WA 98104 (206) 343-7340 17cv1906 Sierra Club v. EPA ED_001523_00001985-00015 Case 3:17-cv-06293 Document 1 Filed 10/31/17 Page 16 of 17 1 1. Declare that EPA exceeded and violated limitations on its statutory authority as 2 set out in the Formaldehyde Act, 15 U.S.C. 2697(b)(1), by delaying the compliance deadlines 3 for emissions standards for hardwood plywood, medium-density fiberboard, and particleboard 4 sold, supplied, offered for sale, imported, or manufactured in the United States beyond 180 days 5 6 of promulgation of the Formaldehyde Rule. 7 2. Declare that EPA acted arbitrarily, capriciously, and contrary to 15 U.S.C. 8 2697(b)(1) by delaying the compliance deadlines for emission standards for hardwood plywood, 9 medium-density fiberboard, and particleboard sold, supplied, offered for sale, imported, or 10 manufactured in the United States beyond 180 days of promulgation of the Formaldehyde Rule. 11 12 3. Declare that the Formaldehyde Delay Rule violates the Formaldehyde Act, 15 13 U.S.C. 2697(b)(1), and exceeds EPA's statutory authority under that Act and is unlawful. 14 4. Vacate and set aside the Formaldehyde Delay Rule, except for the provisions in 15 15 C.F.R. 770.2(b)-(d), 15 C.F.R. 770.7(d)(1), and 15 C.F.R. 770.15(e) applying to third16 party certification, and in 15 C.F.R. 770.2(e)(2)-(3) subjecting laminated products to the 17 18 formaldehyde emissions limits. 19 5. Award plaintiffs their attorneys' fees and costs. 20 6. Grant such additional relief as the Court deems just and proper. 21 22 DATED this 31st day of October, 2017. 23 24 Respectfully submitted, 25 /s/Patti A. Goldman______________________ 26 PATTI A. GOLDMAN (WSBA # 24426) 27 [Pro Hac Vice Admission Pending] ASHLEY N. BENNETT (DCBA# 1044215) 28 [Pro Hac Vice Admission Pending] COMPLAINT FOR DECLARATORY AND VACATUR RELIEF -16- Earthjustice 705 SecondAve., Suite 203 Seattle, WA 98104 (206) 343-7340 17cv1906 Sierra Club v. EPA ED_001523_00001985-00016 Case 3:17-cv-06293 Document 1 Filed 10/31/17 Page 17 of 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COMPLAINT FOR DECLARATORY AND VACATUR RELIEF 17cv1906 Sierra Club v. EPA Earthjustice 705 Second Avenue, Suite 203 Seattle, WA 98104 Ph: (206) 343-7340 | Fax: (206) 343-1526 pgoldman@earthjustice.org abennett@earthjustice.org MONEEN S. NASMITH (NYSBA# 442704) [Pro Hac Vice Admission Pending] Earthjustice 48 Wall St., Floor 19 New York, NY 10005 Ph:(212)845-7376 mnasmith@earthjustice.org STACEY P. GEIS (CSBA# 181444) Earthjustice 50 California, Suite 500 San Francisco, CA 94111 Ph: (415) 217-2000 | Fax: (415) 217-2040 sgeis@earthjustice.org Attorneys for Plaintiffs Sierra Club and A Community Voice-Louisiana Earthjustice 705 SecondAve., Suite 203 Seattle, WA 98104 (206) 343-7340 ED 001523 00001985-00017 Case 3:17-cv-06293-SK Documents Filed 11/02/17 Page lof 5 1 PATTI A. GOLDMAN (WSBA #24426) [Pro Hac Vice Admission Pending] 2 ASHLEY N. BENNETT (DCBA #1044215) 3 [Pro Hac Vice Admission Pending] Earthjustice 4 705 Second Avenue, Suite 203 Seattle, WA 98104 5 Ph: (206) 343-7340 | Fax: (206) 343-1526 6 pgoldman@earthjustice.org abennett@earthjustice.org 7 MONEEN S. NASMITH (NYSBA #442704) 8 [Pro Plac Vice Admission Pending] 9 Earthjustice 48 Wall St., Floor 19 10 New York, NY 10005 Ph: (212) 845-7376 11 mnasmith@earthjustice.org 12 STACEY P. GEIS (CSBA #181444) 13 Earthjustice 50 California, Suite 500 14 San Francisco, CA 94111 15 Ph: (415) 217-2000 | Fax: (415) 217-2040 sgeis@earthjustice.org 16 Attorneys for Plaintiffs Sierra Club 17 and A Community Voice-Louisiana 18 19 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 20 SAN FRANCISCO DIVISION 21 SIERRA CLUB, and A COMMUNITY VOICE- ) Civ. No. 3:17-cv-6293-SK 22 LOUISIANA ) Plaintiffs, ) 23 ) PLAINTIFFS' MOTION TO EXPEDITE 24 v. ) ) 25 SCOTT PRUITT, in his official capacity as ) Administrator of the United States Environmental ) 26 Protection Agency ) 27 Defendant. ) 28 ________________________________________ ) PLAINTIFFS' MOTION TO EXPEDITE Civ. No. 3:17-cv-6293-SK - 1 - Earthjustice 705 Second Ave., Suite 203 Seattle, WA 98104 (206) 343-7340 17cv1906 Sierra Club v. EPA ED 001523 00001986-00001 Case 3:17-cv-06293-SK Documents Filed 11/02/17 Page 2 of 5 1 INTRODUCTION 2 Pursuant to Northern District of California Civil Local Rule 6-3, Plaintiffs ask the Court 3 to expedite Plaintiffs' Motion for Summary Judgment filed concurrently with this motion. 4 Plaintiffs' Motion for Summary Judgment asks the Court to vacate a rule adopted by the 5 6 Environmental Protection Agency ("EPA"), Compliance Date Extension; Formaldehyde 7 Emission Standards for Composite Wood Products, 82 Fed. Reg. 44533 (Sept. 25, 2017) (the 8 "Formaldehyde Delay Rule"), which extends the deadlines for wood products to comply with 9 new formaldehyde emissions limits that Congress directed EPA to establish in the Formaldehyde 10 Standards in Composite Wood Products Act, 15 U.S.C. 2697 (the "Formaldehyde Act"). By 11 12 extending those deadlines, EPA exceeded its authority and acted contrary to the plain language 13 of 15 U.S.C. 2697(b)(1) of the Formaldehyde Act, which required compliance in 2016. 14 Defendant has yet to take a position on this issue. Declaration of Patti Goldman 6 (Nov. 2, 15 2017). 16 Under Local Rule 7.2 and this Judge's Standing Order, the earliest date a hearing on the 17 18 motion for summary judgment can be scheduled is December 11, 2017, one day before 19 compliance with the formaldehyde emissions limits would have been required, but for the 20 unlawful delay rule. This motion seeks to advance the hearing date to give the Court time to rule 21 on the motion before the illegal extension would occur. Expediting the hearing for the motion 22 for summary judgment would not change the briefing schedule. There have been no previous 23 24 modifications of the schedule for this motion. 25 FACTUAL AND PROCEDURAL BACKGROUND 26 In 2010, Congress enacted the Formaldehyde Act to establish national limits on 27 formaldehyde emissions from composite wood products because of formaldehyde's adverse 28 PLAINTIFFS' MOTION TO EXPEDITE Civ. No. 3:17-cv-6293-SK - 2 - Earthjustice 705 Second Ave., Suite 203 Seattle, WA 98104 (206) 343-7340 17cv1906 Sierra Club v. EPA ED_001523_00001986-00002 Case 3:17-cv-06293-SK Document 8 Filed 11/02/17 Page 3 of 5 1 effects on human health and wide use of the chemical in a variety of products such as cabinetry 2 and household furnishings. S. Rep. No. 111-169, at 1 (2010) see also H. R. Rep. No. 111-509, pt. 3 1, at 7-8 (2010). Congress enacted this law in light of serious illnesses experienced by people 4 displaced by Hurricane Katrina who were exposed to formaldehyde-emitting composite wood 5 6 products in emergency trailers provided by the Federal Emergency Management Agency. 7 The Formaldehyde Act directs the EPA to adopt the formaldehyde emissions standards 8 equivalent to the California Airborne Toxic Control Measures for composite wood products 9 manufactured, sold, or imported into the United States by January 1, 2013. 15 U.S.C. 10 2697(d)(1). In addition, the Formaldehyde Act explicitly instructs EPA to ensure compliance 11 12 with the enacted formaldehyde emissions standards "on the date that is 180 days after the date of 13 promulgation of those regulations." 15 U.S.C. 2697(b)(1). 14 In 2016, EPA eventually the Formaldehyde Rule establishing the formaldehyde emission 15 limits and requiring compliance by December, 12, 2017. Formaldehyde Emission Standards for 16 Composite Wood Products, 81 Fed. Reg. 89674 (Dec. 12, 2016). The rule at issue in this case 17 18 delays the compliance deadline for an entire year. Compliance Date Extension; Formaldehyde 19 Emission Standards for Composite Wood Products, 82 Fed. Reg. 44533 (Sept. 25, 2017). 20 Plaintiffs filed this lawsuit on October 31, 2017, and are filing the motion for summary 21 judgment and this motion to expedite two days later. The motion for summary judgment asks 22 the Court to declare the delay rule illegal and set it aside because it defies the statutory 23 24 requirement that EPA require compliance far sooner. 25 GROUNDS FOR MOTION 26 An expedited hearing on Plaintiffs' Motion for Summary Judgme nt is warranted to give 27 the Court time to rule on the motion before the illegal exten sion of the compliance deadline will 28 PLAINTIFFS' MOTION TO EXPEDITE Civ. No. 3:17-cv-6293-SK - 3 - Earthjustice 705 Second Ave., Suite 203 Seattle, WA 98104 (206) 343-7340 17cv1906 Sierra Club v. EPA ED_001523_00001986-00003 Case 3:17-cv-06293-SK Document 8 Filed 11/02/17 Page 4 of 5 1 occur. When EPA adopted the statutorily mandated limits on formaldehyde emissions from wood 2 products, it set a compliance deadline of December 12, 2017, even though the Formaldehyde Act 3 mandated earlier compliance. The challenged rule extends the compliance deadline by an entire 4 year. 5 6 In the Formaldehyde Act, Congress required EPA to act expeditiously to protect the public 7 from toxic composite wood products that can cause serious adverse health effects. It set deadlines 8 for EPA to act and require compliance. Time is of the essence to hold EPA to the statutory 9 mandates in the Formaldehyde Act and to stop the sale and import of wood p roducts that exceed 10 the limits on formaldehyde emissions. 11 12 Under the Local Rules and this Judge's Standing Order, the earliest a hearing can be 13 scheduled is December 11, 2017, one day before compliance would be required, but for the illegal 14 delay rule. Advancing the hearing is necessary to give this Court time to rule on the Motion for 15 Summary Judgment before the December 12, 2017 compliance deadline. 16 For these reasons, this Court should grant this motion to expedite and set the hearing on 17 18 Plaintiffs' Motion for Summary Judgment at the earliest possible date. 19 OPPOSING COUNSEL'S POSITION 20 Pursuant to Northern District of California Civil Local Rule 6-3, Plaintiffs' counsel 21 conferred with an attorney in EPA's Office of General Counsel, who indicated the agency has 22 not yet determined its position on this motion. 23 24 CONCLUSION 25 Plaintiffs respectfully request that the Court grant this motion for expediting Plaintiffs' 26 Motion for Summary Judgment. 27 Respectfully submitted this 2nd day of November, 2017. 28 PLAINTIFFS' MOTION TO EXPEDITE Civ. No. 3:17-cv-6293-SK - 4 - Earthjustice 705 Second Ave., Suite 203 Seattle, WA 98104 (206) 343-7340 17cv1906 Sierra Club v. EPA ED_001523_00001986-00004 Case 3:17-cv-06293-SK Document 8 Filed 11/02/17 Page 5 of 5 1 /s/ Stacey P. Geis________________________ 2 PATTI A. GOLDMAN (WSBA #24426) 3 [Pro Hac Vice Admission Pending] ASHLEY N. BENNETT (DCBA #1044215) 4 [Pro Hac Vice Admission Pending] Earthjustice 5 705 Second Avenue, Suite 203 6 Seattle, WA 98104 Ph: (206) 343-7340 | Fax: (206) 343-1526 7 pgoldman@ earthjustice. org abennett@earthjustice.org 8 9 MONEEN S. NASMITH (NYSBA #442704) [Pro Plac Vice Admission Pending] 10 Earthjustice 48 Wall St., Floor 19 11 New York, NY 10005 12 Ph:(212)845-7376 mnasmith@earthjustice.org 13 STACEY P. GEIS (CSBA #181444) 14 Earthjustice 15 50 California, Suite 500 San Francisco, CA 94111 16 Ph: (415) 217-2000 | Fax: (415) 217-2040 sgeis@earthjustice.org 17 18 Attorneys for Plaintiffs Sierra Club and A Community Voice-Louisiana 19 20 21 22 23 24 25 26 27 28 PLAINTIFFS' MOTION TO EXPEDITE Civ. No. 3:17-cv-6293-SK - 5 - Earthjustice 705 Second Ave., Suite 203 Seattle, WA 98104 (206) 343-7340 17cv1906 Sierra Club v. EPA ED 001523 00001986-00005