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EPA and Beyond Pesticides Ask Court to Proceed on Wood Preservatives
(Beyond Pesticides, February 18, 2004)
On February 12, EPA and Beyond Pesticides filed a joint motion in U.S. District Court, Washington, DC, asking the court to schedule a hearing and briefing timetable on Beyond Pesticides' claim that EPA has "unreasonably delayed" in its review and action on wood preservatives. The agreed-upon motion sets a schedule for production of documents and briefs running through October 13, 2004.

On January 29, 2004, District Court Judge Richard Leon threw out most of the case filed by Beyond Pesticides, the Communication Workers of America, Center for Environmental Health, and Joseph and Rosanne Prager, which asked the court to find EPA in violation of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) because of its failure to cancel the highly toxic (heavy duty) wood preservatives pentachlorophenol, chromated copper arsenate, and creosote. At that time, the Judge found in his opinion memorandum that plaintiffs did not have a right to sue, but granted EPA's motion for partial dismissal, in which EPA acknowledges that the agency can be challenged for "unreasonable delay" under the Administrative Procedure Act (APA). EPA does not concur that it has delayed, but affirms the right of plaintiffs to sue on the matter.

The case, Beyond Pesticides et al. v. EPA (Case No. 02-2419), was filed on December 10, 2002. Central to the case is a request from the court for a declaratory judgment that EPA has unreasonably delayed in completing its regulatory actions on the three heavy duty wood preservatives which were initiated in 1978, and in responding to Beyond Pesticides' petitions to cancel and suspend their registrations. The wood preservative chemicals in question contain arsenic, dioxins, hexachlorobenzene, furans and other deadly compounds, cause cancer and neurological effects, and as a group account for the largest volume of pesticide use on an annual basis.

While EPA and Beyond Pesticides agree that the case may proceed on the question of "unreasonable delay," the parties, according to the documents filed, "have not agreed on the contours of the Plaintiffs' remaining claim after the grant of EPA's partial motion to dismiss, or what the record relevant to that claim is." In agreeing to the timetable, the plaintiffs reserve the right to "make any legal argument in the briefing on the merits" and appeal the January 28 decision that dismissed the other counts alleging violations of the FIFRA.

According to Jay Feldman, executive director of Beyond Pesticides, "While we feel that the court is wrong on the matter of EPA's failure to protect the public by removing the heavy duty wood preservatives from the market, at the very least, EPA should be held to a timetable for decision making." "The agency has dragged out its review and re-review of the wood preservatives for almost three decades, as people and the environment suffer harm," he said.

TAKE ACTION: If you are concerned about the Bush Administration's lack of attention to the wood preservative issue, please contact Mr. Micheal Leavitt, EPA Administrator, by email, phone: 202-564-4711, or fax: 202-501-1470. Also contact your Members of Congress. When writing your Members of Congress, please also ask them to contact President Bush and EPA Administrator Micheal Leavitt about this important issue. See Beyond Pesticides' wood preservatives page for local action and organizing kit.