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Litigation Continues As Judge Denies Preliminary Injunction to Ban Wood Preservative

(Beyond Pesticides, June 26, 2003) U.S. District Court Judge Richard J. Leon denied a motion for a preliminary injunction (PI) that would have immediately suspended of all uses of the wood preservative pentachlorophenol (penta), which is primarily used to treat more than half of the utility poles in the U.S., but banned around the world. The PI, filed against EPA on December 10, 2002 as part of a larger lawsuit to ban the three heavy-duty wood preservatives, cites adverse health effects and the availability of safer alternatives. Plaintiffs include Beyond Pesticides, Communications Workers of America (CWA), Center for Environmental Health, and a victim family from Florida. Judge Leon, appointed by George W. Bush last year after years of working for Republicans on issues from Whitewater to the Iran-contra scandal, filed his opinion on June 20, 2003.

Penta is linked to a wide range of health problems including cancer, birth defects, kidney and liver damage, disruption of the endocrine system and death. EPA has calculated that children exposed to soil contaminated with penta leaching out of utility poles face a risk of cancer that is 220 times higher than the agency's acceptable level. According to EPA's own data, a typical worker who paints penta onto poles in the field faces more than a 100% lifetime risk of cancer. Other categories of workers, such as utility pole installers, also face risks many times above EPA's "acceptable" level.

Beyond Pesticides argues that EPA has failed to protect public health and the environment from the hazards of penta. More that that, Beyond Pesticides says , the case exposes an agency that lacks the will to act, even in the face of the most extreme evidence identified by its own scientists in accordance with its own standards. Because EPA has not acted, human health has been and will continue to be adversely affected by penta, the law suit says.

In his ruling, however, Judge Leon did not challenge the substance of the case, but rather denied the motion based on jurisdictional issues. According to Judge Leon, the court may not intervene until EPA has taken "final action" on penta, which he defines as the completion of reregistration review. But, Beyond Pesticides argues that 25 years of reviewing the same chemical is too long, and the public cannot wait any longer for EPA to act.

EPA first began looking at penta in 1978 when the agency issued a "special review" document, then called a "rebuttal presumption against registration" (RPAR), because it had evidence that the chemicals exceeded acceptable risk criteria for cancer, genetic mutations and birth defects. Over the next several years, EPA canceled the pesticide registrations for all uses of these pesticides except wood preservative use. The agency concluded in 1984 that despite the excessively high associated risks the wood preservatives did not have economically viable alternatives that would lower risk. In 1997, EPA began a reregistration review of the wood preservatives, which it never completed. Beyond Pesticides argued unsuccessfully that EPA's inaction amounts to a "final action" by the agency.

The PI is the first part of a larger case seeking cancellation of penta, chromated copper arsenate (CCA) and creosote. Due to its extreme risks, penta was singled out in the PI for swift action. Expecting the Judge's denial, Beyond Pesticides will continue the legal battle to ban all of the heavy-duty wood preservatives through a lengthier second part of the legal process.

Go to Wood Preservatives Lawsuit page.