Beyond Pesticides Comments on CCA-Treated Wood
March 22, 2002
and Records Integrity Branch
RE: Proposed Cancellation of Certain Uses of Chromated Copper Arsenate (CCA) and Ammoniacal Copper Zinc Arsenate (ACZA), docket control number OPP 66300 (Read the Federal Register Notice)
Beyond Pesticides/NCAMP, Agricultural Resources Center, Haverhill Environmental League, and Vermont Public Interest Research Group (VPIRG) submit the following comments on EPA's proposal (announced at 67 F.R. 8244, February 22, 2002) to accept voluntary cancellation of certain uses of CCA and ACZA (hereinafter, "CCA") effective December 31, 2003. For the reasons set forth below as well as those included in its petition for immediate suspension and cancellation of December 21, 2001, NCAMP/Beyond Pesticides believes that a "phase-out" of a limited number of uses over some 20 months is inappropriate and insufficiently protective of human health and the environment because of unreasonable risks and actual, documented harm known to EPA that will continue during and after the "phase-out" period. EPA's proposed action is not truly a "phase-out" but rather a delayed partial cancellation, with no enforceable regulatory action whatsoever until December 31, 2003 NCAMP/Beyond Pesticides incorporates its prior petition to EPA for immediate suspension and cancellation of all uses of CCA because immediate removal from the marketplace is urgently necessary to prevent unreasonable adverse effects on human health and the environment. (Petition of December 21, 2001, Letter of April 19, 2001, attached and incorporated by reference.)
1) A Two-Year Delay Before the Partial Voluntary Cancellation is Unreasonably Long in View of the Documented Harm to Public Health and the Feasibility of a Quicker "Phase-out."
EPA's proposal to wait until December 31, 2003 to cancel non-industrial uses of CCA would allow continued public exposure to pesticides with frequent, documented adverse health effects including acute toxicity and cancer In addition, continued production and the resultant use and disposal of arsenic-treated wood will result in additional release of arsenic into the environment Arsenic-treated wood has such a high propensity to leach arsenic that it fails EPA's TCLP. Without EPA's exemption for arsenic-treated wood, this failure means that CCA would be required to be disposed of as hazardous waste. (See section 6, below.)
Studies conducted by scientists and media outlets have documented highly elevated levels of arsenic in the soil beneath structures made of CCA-treated wood and on the surface of the wooden structures. These studies show that arsenic and chromium leach out of CCA-treated wood at rates that pose an unreasonable risk to human health and the environment. The National Research Council has determined that consuming arsenic at the current drinking water standard of 100 µg per person per day can lead to a cancer risk of between one additional case in 100 and one in 1,000. EPA typically finds that a risk that a pesticide causes one additional case of cancer in 100,000 to one million is unacceptable. The studies discussed in our petitions have found that children could receive doses of arsenic as high as 1,260 µg from touching CCA-treated wood.
Recent studies reveal that CCA-treated wood creates additional risks to homeowners and farmers that may not have previously been appreciated. For example, CCA is used in gardens for borders, raised beds, posts and stakes. Edible plants are also grown around the perimeters of decks, patios and porches made with CCA-treated wood. Consumers and gardeners who are not informed of the potential for toxic substances to leach from CCA-treated wood are growing plants in raised beds built with CCA-treated wood or near decks built with CCA-treated wood. David E. Stilwell reported in an article entitled "Excerpts on Uptake of Arsenic by Plants Grown Near CCA Preserved Wood" that arsenic levels in edible plants "tended to increase in the plant tissue with increasing amounts of arsenic in the soil." He found that the rate of "arsenic uptake by plants is affected... by plant species and arsenic type and concentration in soils [and by] soil properties such as the amounts of phosphorus, iron oxide and organic matter." His findings and those of others whom he cites suggest the potential for adverse effects in humans. For instance, Stilwell reported that, "[A]ll of the limits for arsenic were exceeded in the mustard greens, even when grown at the lowest spike level of 25 mg/kg arsenic in the soil.
Given the documented hazards of CCA, EPA is obliged to proceed as rapidly as possible. There is certainly no need for a delay of years. Without causing significant economic disruption, EPA could easily order the cancellation of CCA and industry could replace it with available substitutes in a period of months. There are viable, less-toxic alternatives readily available for every use of CCA.
Playground Equipment Manufacturers Have Already Moved Away from CCA-Treated Wood
The marketplace is
already demanding playground equipment that is not made with CCA-treated
wood. According to both large and small playground equipment manufacturers
and distributors throughout the country, there has been a recent shift
away from playgrounds made with CCA-treated wood. Manufacturers are now
building playgrounds with ACQ- and CBA-treated wood. The costs of these
woods vary from 0 to 20 percent more than CCA-treated wood, depending
on where they are purchased.
Alternative Decking Materials
The most common alternatives to pressure-treated wood for decking include redwood and cedar, which are naturally pest-resistant, and composite decks. In a quote received from an east coast home supply store for a standard 12x12 foot deck with railing and stairs, it costs $1,057.92 for a deck made with standard CCA-treated wood and $1,320.82 for a deck made with 50 percent recycled plastic and 50 percent recycled wood fibers. A California home supply store quotes $1.75/sq ft for composite wood and $2/sq ft for redwood. When asked about the cost of lumber to build a deck, the sales contractor did not provide quotes or information about CCA-treated wood until it was requested. He quoted $.80/sq ft for CCA-treated wood, but did not recommend it because of the maintenance required and the inferior aesthetic appeal compared to the other two types of materials (resulting from indentations on the surface of pressure-treated wood).
2) EPA Regulation, Specifically the "Treated Article Exemption" (40 CFR 152.25(a)) Precludes Sale Of Treated Wood For Canceled (Residential and Playground) Uses After December 31, 2003.
EPA press statements and a Q/A document have implied that after the proposed cancellation date of December 31, 2003, wood treated with CCA may continue to be sold for the canceled uses. EPA's Q/A document (at http://www.epa.gov/pesticides/citizens/cca_transition.htm) states:
"What uses of
CCA-treated wood are affected by this transition?
To the extent that this statement suggests that wood treated prior to this date may be sold for use in residential or playground settings, it is directly contrary to EPA's own regulations, specifically the "treated article exemption" because continued sale after December 31, 2003 of wood treated with CCA would amount to sale of an unregistered pesticide which is prohibited by FIFRA §12(a)(1)(A).
As EPA explained to pesticide registrants in PR Notice 2000-1 (March 6, 2000),
in 40 CFR 152.25(a) exempt certain treated articles and substances from
regulation under the Federal Insecticide, Fungicide, and Rodenticide Act
(FIFRA) if specific conditions are met. The specific regulatory language
While Beyond Pesticides/NCAMP continues to urge an immediate suspension and cancellation of all uses of CCA, if EPA declines to take this action necessary to protect human health and the environment, we urge that EPA at least clarify that its proposed action to cancel CCA for "non-industrial" uses would require that continued sale of treated wood for non-industrial uses be prohibited after December 31, 2003 because CCA-treated wood for such uses would no longer be exempt from FIFRA as a treated article. In order to implement this prohibition and to avoid confusion, EPA must require that after December 31, 2003, all CCA-treated wood be labeled to inform uses of the prohibition of use for the canceled home and playground uses.
3) The Scope Of Proposed Voluntary Cancellation Is Far Too Narrow
EPA's February 12, 2002 press release states that the "phase-out" of CCA would cancel "virtually all residential uses." EPA's statements are misleading to the public. In truth, as revealed by the February 22 Federal Register notice, the "phase-out" is actually a delayed cancellation that would not occur until the end of 2003 and the scope of the cancellation is far narrower than virtually all residential uses. It does not address existing structures that will be in use for many years to come, nor any of the following uses that could be found on or near residences: Utility Poles, Plywood, Poles, Piles and Posts Used as Structural Members on Farms, and Plywood Used on Farms, Wood for Marine Construction, Round Poles and Posts Used in Building Construction, Sawn Timber Used To Support Residential and Commercial Structures, Structural Glued Laminated Members and Laminations Before Gluing, Structural Composite Lumber, and Shakes and Shingles. The uses that EPA proposes to retain are broad enough that CCA-treated wood sold for other uses may find its way into consumers' hands, making enforcement of the partial phase-out problematic. (See section 4 below.) Furthermore, as discussed above, the use of recycled CCA-treated wood in residential gardens and on farms is not addressed by the partial voluntary cancellation.
EPA should cancel these and all industrial uses of CCA, such as utility poles and marine pilings, because of the current availability of economically viable alternatives. As further explained below, in 1981, EPA determined not to cancel these uses of CCA despite unacceptable risks, solely because of a claimed lack of alternatives. While that may have been an appropriate justification for continued registration in 1981, it certainly is not today. About 29,215,000 cubic feet of poles are treated with arsenicals, according to the American Wood Preservers Institute. This represents approximately 42 percent of all utility poles. Alternatives to CCA-treated utility poles and marine pilings are discussed below.
4) Enforceability of "residential" and "industrial" distinction is extremely limited. EPA does not describe how it will enforce improper use patterns associated with its distinction between "residential" and "industrial" uses of CCA-treated wood. A real world analysis of consumer practices will find that once the treated-wood is in the marketplace, it will be used for uses not allowed under the agreement. For example, treated wood used to support residential structures can be remilled for other uses such as decking. Utility poles are regularly reused and remilled for uses ranging from decks to garden ties. Since EPA's wood labeling program is weak, voluntary and unenforceable (See section 6 below), exposures associated with CCA-treated wood uses, otherwise canceled, will continue.
5) Available Alternatives
Shift Risk and Cost-Benefit Analysis Away from CCA Use
With respect to alternatives, it should be noted that EPA, under its environmental and public health mandate, should embrace the precautionary principle and seek to limit alternative wood preservatives until complete health hazard and environmental assessments are available, especially in light of the availability of alternative materials, such as naturally resistant woods and borates. Where EPA has identified materials and approaches that present less or no toxic impact to human health and the environment, the more toxic approach represents an "unreasonable adverse effect" under FIFRA.
In 1981, when EPA analyzed the heavy-duty wood preservatives as part of the Rebuttable Presumption Against Registration (RPAR) process (now Special Review), it chose not to cancel CCA's registration primarily because of a lack of available alternatives, explaining:
The Agency is very concerned about reducing the apparently high risks to treatment plant workers. However, canceling a specific use or uses for each one of the three wood preservative chemicals is unlikely to alter the overall risk picture for that chemical, since the treatment plant applicator is likely to apply the chemical to another end-use product. Thus, in order to appreciably lower the risks from exposure, we would have to cancel all uses of that pesticide. Due to the non-substitutability of the wood preservative compounds and the lack of acceptable non-wood or other chemical alternatives for many use situations, the economic impact which would result from an across-the-board cancellation would be immense. Moreover, the only wood preservative pesticides that are efficacious for a majority of the use sites are the inorganic arsenical compounds, which pose the highest level of estimated risk. [Emphasis added.]
Today, several alternative technologies are available to replace every use of CCA-treated wood. Below we provide a comparative analysis of these products along with the cost and life span differentials among them. Some of the alternatives to CCA include: sustainably harvested and naturally pest resistant wood species, such as cedar and redwood; recycled steel; recycled plastic marine pilings; composite lumber made with recycled plastic, borate-based wood preservatives; and, as a last resort, wood-preserving chemicals that contain neither arsenic nor chromium, such as Alkaline Copper Quaternary (ACQ), Copper Boron Azole (CBA), and Copper-8-quinolinate. ACQ- and CBA-treated wood products, which are considered "drop-in replacements" by industry, currently cost only about 8 to 15 percent more than CCA-treated wood. Due to economies of scale, prices for these alternatives should fall as demand increases. ACQ and CBA are considered to be just as effective as CCA.
The process equipment used to chemically treat wood with CCA is essentially identical to the equipment needed for the less-toxic alternative chemicals. The same companies that produce CCA also manufacture ACQ- and CBA-treated wood products. Wood treatment industry officials are on record stating that converting a treatment plant would only cost $10,000 to $30,000.
Viable Utility Pole Alternatives
The utility industry expects 40 to 50 years of service from CCA-treated wooden poles, although it has been found that a bad batch of wood can yield less than 35 years of service. The recycled steel, concrete and fiberglass alternatives yield a lifespan of 80 to 100 years and do not require costly periodic retreatment which is required for wood. In addition, disposal costs for chemicals used in wood treatment are high and growing, while steel is recycled. For the purposes of a comparative analysis, we use an average pole size of 40 feet, class 3 or 4. The Tillamook People's Utility District in Oregon pays $271 for its wood poles and approximately $70 more for steel poles. Despite the higher initial cost, the utility believes that steel provides a long-term savings because its lifespan is nearly double that of wood and the use of steel eliminates the wood pole retreatment program that costs the utility $30 to $35 a pole.
Steel was cited as the most common alternative utility pole material in a Swedish report. The same is true in the United States where steel poles represent a small but growing alternative to the use of treated wood utility poles. Switching to recycled steel poles could represent a significant market for U.S. steel manufacturers. If EPA canceled the registrations of the two wood preservatives used on utility poles (CCA and pentachlorophenol) the steel industry could gain the market for the approximately 3 million poles added or replaced each year. Reinforced concrete is also an alternative to treated wood poles. The material's longevity ranges from 80 to 100 years. StressCrete, a company based in Burlington, Ontario, Canada (with a plant in Tuscaloosa, Alabama) is a major producer of cement utility poles. It charges $350 for a 40 foot, class 4 pole (exclusive of freight). Fiberglass reinforced composite is another alternative material available for poles. Additional options include using ACQ-treated wood and burying utility lines underground.
Viable Alternatives to CCA-Treated Pilings
Composite materials can also be used in place of CCA-treated marine pilings. For example, U.S. Plastic Lumber produces structural plastic lumber made with recycled materials. They produce cost-effective, high-performance alternatives that have excellent resistance to marine borers, salt spray, termites, oils and fuels, corrosive substances, and other environmental stresses. Additionally, plastic pilings do not absorb moisture and will not rot, splinter or crack as wood pilings tend to do.
6) EPA Relies Upon a Consumer Labeling Program to Prevent Unreasonable Adverse Effects. This Program Has Failed Repeatedly and EPA's Continued Reliance Upon it Endangers Public Health and the Environment and is Arbitrary and Capricious
Since 1986, the wood preservative industry has failed to comply with EPA's voluntary Consumer Awareness Program (CAP) intended to alert the public to the dangers of CCA-treated wood. As a result, numerous tragic incidents show that consumers remain unaware of the hazards associated with exposure to CCA-treated wood, which include respiratory, dermatological, and neurological symptoms. Furthermore, the wood preservative industry has not developed a means to protect the public from arsenic leached from CCA-treated wood. The expected life of CCA-treated wood can be more than 50 years; public health and the environment will continue to be imperiled until it is safely disposed.
Historical Overview and Failure Of EPA's Consumer Awareness Program
EPA's 1984 RPAR concluded that a set of risk reduction measures was necessary prevent unreasonable risk caused by continued registration of CCA. EPA found that without each of these restrictions the risk to public health would outweigh the benefits. One of the measures which EPA determined was necessary to prevent unreasonable risk was a mandatory Consumer Awareness Program (CAP) for inorganic arsenicals. The program would have required members of the American Wood Preservers Institute (AWPI), wood treaters, and retailers to provide consumers with a Consumer Information Sheet at the point of purchase. AWPI immediately challenged the proposal and succeeded in weakening it, convincing EPA to convert it into a voluntary CAP, over which EPA had no enforcement authority. EPA found that a voluntary CAP was "likely to meet the Agency's goal of providing users of pressure-treated wood with proper use and precautionary information."
EPA considered the CAP an integral part of its risk mitigation efforts to protect public health:
The Agency has every
reason to believe that this voluntary Consumer Awareness Program will
reach those members of the public using treated wood and alert those individuals
to proper use and precautionary practices. Because this voluntary program
is expected to satisfy the Agency's public health protection goals, the
Agency has determined that the risk-benefit balance will not be affected
by eliminating the mandatory Consumer Awareness Program for the labeling.
Should the voluntary program fail to meet the Agency's expectations, the
Agency is prepared to issue a rule pursuant to the Toxic Substances Control
Act directed to alert all purchasers and users of treated wood to appropriate
information about the use of such products.
Injuries Caused By CCA
Many people have been
diagnosed as suffering from acute arsenic poisoning after exposure to
CCA-treated wood. For example:
In addition, EPA's Incident Data System contains the following reports of injury from CCA-treated wood:
- "In an incident
report received 8/1/91, a Florida man handling lumber, which was not properly
marked with warnings, reported severe injury. He experienced itching,
burning, rashes, neurological symptoms, and breathing problems."
This ever-growing list of injuries exemplifies the unreasonable adverse effects that continued registration of CCA creates and which the voluntary consumer awareness program has failed to prevent. If EPA does not immediately cancel and suspend all consumer uses of CCA-treated wood, EPA should immediately implement a comprehensive mandatory Consumer Awareness Program for non-industrial uses of CCA-treated wood, including all wood used in play-structures, decks, picnic tables, landscaping timbers, residential fencing, patios and walkways/boardwalks. This mandatory Consumer Awareness Program should inform and require all public schools and recreational centers to conduct soil and surface leaching tests around all public structures made with CCA?treated wood products, including (but not limited to) public playgrounds, decks and picnic tables. Based on the results of these tests, EPA should:
(i) require remediation of structure and/or soils to eliminate arsenic; or
(ii) require application of least-toxic sealants regularly, as needed (i.e., on a yearly basis, depending on local weather conditions), and that public awareness sheets be clearly posted in all public areas.
In the absence of a mandatory and enforceable CAP program, the agency's refusal to act to immediately suspend and cancel CCA after 15 years of failed voluntary CAP programs is inconsistent with its earlier findings that an effective consumer awareness program is necessary to prevent unreasonable risk and is therefore arbitrary and capricious.
7) The Resource Conservation and Recovery Act (RCRA) Exemption of Arsenic-Treated Wood Creates Additional Risks and Enables Unsafe Disposal Practices
Of the top 275 hazardous substances listed by the Agency for Toxic Substances and Disease Registry as being present at EPA Superfund sites in 1997 based on frequency, toxicity, and human exposure, two of the three primary ingredients in CCA-arsenic and hexavalent chromium-were ranked first and sixteenth respectively. Currently, 51 wood preservation sites are on the EPA Superfund National Priorities List because of contamination from CCA. In order to prevent long-term public health and environmental exposures, EPA should immediately prohibit burning and mulching of CCA-treated wood, and rescind the regulatory exemption that allows CCA-treated wood to be disposed of as a non-hazardous waste despite failing EPA's Toxicity Characteristic Leaching Procedure test, which measures the toxicity of a solid waste. EPA should require that all CCA-treated wood products be disposed of in a lined landfill designed to handle hazardous waste, with a leachate system and groundwater monitoring system.
EPA's exemption of arsenic treated wood at 40 CFR 261.4(b) promulgated under the Resource Conservation and Recovery Act (RCRA), creates unreasonable adverse effects on both human health and the environment, including soil and groundwater contamination with arsenic. In order to prevent unreasonable adverse effects EPA should immediately rescind the exemption, the text of which follows:
"(b) Solid wastes which are not hazardous wastes. The following solid wastes are not hazardous wastes: ... (9) Solid waste which consists of discarded arsenical-treated wood or wood products which fails the test for the Toxicity Characteristic for Hazardous Waste Codes D004 through D017 and which is not a hazardous waste for any other reason if the waste is generated by persons who utilize the arsenical-treated wood and wood product for these materials' intended end use."
Conclusion: Continued Registration of CCA will Continue to Create Unreasonable Adverse Effects and is Not Justified by Lack of Alternatives
NCAMP/Beyond Pesticides requests that EPA strengthen the proposed "phase-out" of CCA (which is actually a proposal to delay cancellation of a limited number of residential uses until the end of 2003) by shortening the lengthy phase-out period to a few months rather than years, and by canceling the registration for all uses of CCA because any continued registration of CCA creates a virtual certainty that unreasonable adverse effects will continue to occur. This action is supported by EPA's findings of unreasonable risk in the 1984 RPAR; the decision at that time to retain the registration was based on lack of alternatives. Adequate, economical alternatives now exist, therefore the premise of the RPAR decision is no longer supportable.
At the end of any phase-out period for CCA, wood treated for CCA will no longer meet EPA's "treated article exemption." Therefore we request that EPA clarify to the public and provide consumers and sellers notice that all sales of CCA-treated wood for canceled uses must stop on the effective date of the cancellation.
If EPA decides to retain the registration of any uses of CCA, EPA cannot continue to rely on its voluntary consumer awareness program because this type of program has been repeatedly demonstrated to be an ineffective measure to mitigate the unreasonable risks that EPA has found are caused by this pesticide. Instead we request that EPA institute and enforce a mandatory Consumer Awareness Program as a measure to mitigate the unreasonable risks identified in the 1984 RPAR. Further, NCAMP/Beyond Pesticides requests that EPA immediately rescind its RCRA exemption for arsenic-treated wood in order to mitigate the continued release of arsenic and chromium into the environment.
We are concerned that the acceptance of the proposed December 2003 "phase out" is likely to obstruct, divert resources from, or otherwise delay EPA's continued progress on risk assessments and other work towards a re-registration eligibility decision on CCA. Therefore, if EPA chooses to continue any uses of CCA, we request that EPA publicly commit to continuing its ongoing risk assessment and regulatory efforts on this pesticide, and that EPA specify its plans including a timetable for completing these long-overdue tasks.