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Court Sides With Wood Treaters Against Victims of CCA
(Beyond Pesticides, December 11, 2003) The U.S. District Court for the Southern District of Indiana absolved last month two companies that treat wood with chromated copper arsenate (CCA) and two chemical manufacturers of CCA of any liability for a couple's exposure to arsenic from CCA-treated wood.

In a ruling that epitomizes the contradictions of law and protection in U.S. courts and failure of the Environmental Protection Agency (EPA) to adequately protect public health, an Indiana Judge ruled that the couple's failure-to-warn claims were pre-empted under Federal Insecticide, Fungicide, Rodenticide Act (FIFRA) and failed to meet state liability standards.

Andrew and Andrea Hunt's deck of their home was build from CCA-treated wood in 1986 by Andrew Hunt's father who owned the home at the time. In fall 2000, after acquiring the home and unknowing of the dangers, the Hunt's tore down the deck, burned the wood, and used the ashes as fertilizer in their garden.

After learning about the potential harmful health effects of exposure to CCA-treated wood, the couple tested the soil around their house and found high levels of arsenic. The contaminated soil was seen not only as a threat to their health, but would also result in a dramatic decrease in the market value of their home. The couple argues that there should have been proper warnings of the danger of CCA on the wood at the time of purchase.

The Indiana judge disagreed with the plaintiffs failure-to-warn claims by citing that under FIFRA, states cannot require companies to change or alter in any way an EPA-registered product label. Therefore, if the two companies, Southeast Wood Treating Inc. and Universal Forest Products, were to add additional consumer warnings to the wood (whether ordered by the state or not) then they would be in violation of FIFRA.

"'CCA is an EPA-registered pesticide,'" reasoned the judge, "'and plaintiffs do not offer any evidence that the pesticide was not labeled in conformity with EPA requirements…. Almost every other Circuit that has addressed the issue has held that state law failure-to-warn claims challenging the warnings on EPA-registered pesticides are pre-empted by FIFRA.'"

The plaintiffs argued that they were not challenging the EPA-approved label for CCA, but instead the labeling of the final product, the treated wood. The judge responded by citing a major compromise made by EPA back in the mid-1980s and perpetuated through 2001.

In an attempt to mitigate risks of exposure to wood preservatives, EPA proposed a mandatory Consumer Awareness Program (CAP) where manufacturers would provide consumers with a Consumer Information Sheet at the point of purchase. Though environmental health advocates wanted the EPA to go much further and ban the preservatives, the proposal was seen as a step in the right direction to protect public health.

Immediately the mandatory CAP proposal came under attack by industry who quickly succeeded in getting the EPA to cave and change CAP from a mandatory program to a self-regulated voluntary labeling program, over which EPA has no enforcement authority. In 1994 and again in 2001, EPA acknowledged "the previous consumer awareness program was not adequately informing the public" and cited lack of participation nationwide as the cause of the program's failure. Despite the EPA's repeated confessions over the years, the judge reasoned that since the EPA had attempted to address final product labeling through CAP, then again the couple's claim was pre-empted.

In 1986 when the voluntary CAP was first instituted, the EPA vowed that a failure to conform to the voluntary agreement would result in the issuance of a rule (under the Toxic Substances Control Act) resulting in a mandatory consumer and end-user awareness program. Despite this promise and repeated recognition of the failure of industry to conform, and numerous comments by Beyond Pesticides and other groups submitted to the agency, the EPA has still refused to act on the labeling issue of hazardous wood preservatives and in so doing continues to put the public and end-users at serious and unreasonable risk.

Trying to hold the manufacturers accountable under the Indiana Products Liability Act (IPLA) proved equally unsuccessful. According to the state law, liability can only be held if injury or damage resulted from "reasonably expectable" use of the product. Even though wood ashes are known to be a rich source of nutrients for any soil, the court ruled that the use in question was not to construct and repair the deck but to dismantle and demolish the treated wood. Therefore, the court ruled that the burning of the wood was not a reasonably expectable use.

In recognition of the high risk of exposure to CCA-treated wood's cancer-causing agents (especially for children), the EPA announced that as of January 2004 CCA-treated wood will no longer be manufactured for decks, picnic tables, playground equipment, among other uses. It will however allow remaining stocks to be sold until exhausted and, despite the agency's own recognition of the hazards of exposure, will not be requiring additional or alternative consumer hazardous material warnings. Meanwhile, the other most deadly wood preservatives pentachlorophenol and creosote continue in the marketplace unaddressed by the agency.

Source: Pesticide & Toxic Chemical News, Vol. 32, No. 6

For more information on any of the above see Beyond Pesticides' Wood Preservatives program or contact Beyond Pesticides.