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Daily News Blog

08
Feb

With Market Collapse, EPA Cancels Highly Hazardous Wood Preservative Years after Worldwide Ban

(Beyond Pesticides, February 8, 2022) After nearly a century of use, the U.S. Environmental Protection Agency is officially cancelling the highly toxic wood preservative pentachlorophenol (penta). As one of the most dangerous pesticides ever produced, penta poses unacceptable risks to workers and surrounding communities, which often became superfund sites once manufacturing plants closed. According to the agency, “During the registration review process, EPA found that given the emergence of viable alternatives, the risks pentachlorophenol poses to workers’ health outweigh the benefits of its use.” Health and environmental advocates are pleased with the agency’s long overdue action on penta but remain incredulous that EPA has provided a generous phase-out for the utility and wood preservative industry, allowing use to continue for up to 5 years. Beyond Pesticides has been working to ban pentachlorophenol, creosote, and copper chromated arsenate since its founding in 1981. (See history of Beyond Pesticides’ work and litigation.)

EPA’s statement on alternatives and workers’ health is a telling example for the public regarding the way in which the agency consistently places economic decisions above American’s safety. EPA has long known about the dangers penta poses to health, particularly the health of workers in penta production or treatment plants. In 2008, the agency determined that these occupational handlers had a 1 in 1,000 risk of developing cancer. Rather than cancel the chemical at that time to protect worker health, the agency opted to attempt additional mitigation measures, requiring further personal protective equipment, engineering controls, and changes to treatment procedures. With no real-world evidence that this would make a difference, the agency expected these changes to drop the cancer risk to workers. However, in its most recent draft risk assessment, EPA found that this drastically high cancer risk remained the same. (EPA considers cancer risks between 1 in 10,000 and 1 in 1,000,000 to be “acceptable.”)

A close read of EPA’s statement makes it clear: workers were expendable until the wood preservative industry had economically viable alternative chemistries it could use. In fact, EPA’s cancellation decision still leaves workers at risk.  According to EPA’s decision document, the agency “considered requiring additional interim risk mitigation measures during the period prior to the cancellation,” but decided against doing so because they, “may take several years to adopt and require significant financial resources in order to implement.” Instead, EPA opted to provide the wood preservative industry five more years to transition to other materials.

The agency will require registrants to voluntarily cancel their penta products by February 29, 2024. EPA will then provide another 3 years for registrants to utilize their left-over stocks of penta, placing a hard end date on February 29, 2027. In a response to Beyond Pesticides comments, the agency does indicate it will require mandatory cancellation should current registrants not follow through voluntarily.

EPA’s rationale for their 5-year phase-out is not to protect health or the environment. Simply, it is what the industry told the agency it wanted. “The Agency does not, however, support a phase-out period of less than 5 years due to the potential disruption in the utility pole market,” the final decision reads. When Beyond Pesticides asked pointedly in comments to speed up the cancellation period, the agency indicated that 5 years was an acceptable compromise because some commenters requested a phase out period longer than five years.

It is worth noting that the agency has fully registered pesticides for time limits shorter than 5 years, and has the authority to immediately cancel hazardous chemicals – particularly those like penta, which has an immense body of data on its harm that could withstand industry legal challenges. In this context, EPA’s approach to protection has been more focused on the wood preservative industry than on the environment, worker, or resident health. At every turn, once risks were identified, EPA took steps to keep penta on the market, and protect industry interests over human health.   

In the late 1970s, an initial range of significant risks were identified, and penta underwent an EPA Special Review. The agency identified a range of chronic harms from penta exposure, including contaminants such as hexachlorobenzene, furans, and polychlorinated dibenzo-p-dioxins, one of the most toxic substances known to humankind. But industry pressure resulted in a soft-pedal whereby EPA focused on “risk reduction measures” rather than elimination. Products were restricted from residential use, but significant use remained for railways and utility lines. And rather than require improved production processes that eliminated dioxin contamination, the agency negotiated with industry to allow it to phase down contamination levels over several years. (Despite decades of time to improve production processes, current EPA documents show hexachlorobenzene and dioxin remain at hazardous levels of contamination in penta treated wood [19.3ppm and .55ppm average in 2013]).

Beyond Pesticides then sued EPA in the early 2000s urging cancellation of the chemical, but the suit was ultimately struck down over administrative issues. In one notable instance, penta review documents from EPA calculated a 2.2 in 10,000 cancer risk to children playing around treated poles. This rate was 200 times above EPA’s acceptable cancer threshold for children. But rather than protect children, EPA simply removed the exposure scenario for children and echoed a claim by the Penta Council, an industry group, that “play activities with or around pole structures would not normally occur.”

Likewise, when the Stockholm Convention on Persistent Organic Pollutants took up penta for consideration of an international ban, EPA and the U.S. government engaged in the process, and opposed listing penta despite not being a signatory to the Stockholm Convention. Ultimately, however, the US failed to convince other nations that the risks were worth the supposed benefits of penta use.

To finally ban penta in the United States, it took grassroots advocates, intrepid reporters, and courageous lawmakers to eliminate the wood preservative’s last economic opportunity. After the Stockholm Conventional listed penta, it set a clock ticking on production plants throughout the world. The last plant in Mexico was set to be shuttered, leaving the United States as the only possible location left where this internationally banned material could be produced. As a result, Gulbrandsen Chemicals, a multinational company with ties to India, attempted to supply the U.S. market by proposing a penta plant in the majority low-income African American community of Orangeburg, South Carolina. Residents and local lawmakers fought back. A series of high-profile investigative reports, community advocacy, and political action ultimately upset the plans laid by this corporation, and Gulbrandsen Chemicals withdrew its proposal.

EPA cited this fact under “other considerations,” it used to justify announcing the cancellation. In comments, Beyond Pesticides urged the agency to base its decisions not on the “uncertain future of pentachlorophenol production” and instead on the statutory requirements for FIFRA registration that the chemical poses an unreasonable risk. For EPA’s part, it denies that it based cancellation on the uncertain future of penta production – that point was simply noted to provide context, according to the agency. EPA reiterated that it based its decision off of its risk/benefit calculation, as well as international support to ban penta. Opining for wood preservative manufacturers, “EPA expects that industry’s decision to cease production of pentachlorophenol is a reflection, not a cause, of the same factors,” the agency’s final decision reads.

Despite its failure to take immediate action, the agency did say, “[E]PA is requiring cancellation of pentachlorophenol based on the Agency’s determination that the benefits of pentachlorophenol—in particular in light of the emergence of newer, safer alternatives. . .”

To truly show it is evaluating hazardous wood preservatives based on the letter of the law, rather than the reflections of industry, EPA should take immediate action on other wood preservatives that have viable alternatives. Chief among the remaining is creosote, which was recently featured as part of EPA Administrator Regan’s Journey to Justice tour, where he heard from residents of Houston, TX’s Greater Fifth Ward, which is still dealing with legacy contamination from a creosote railroad tie treatment plant.

Like penta, creosote production has resulted in immense suffering for workers and residents in fence line communities near these industrial sites. Like penta, there are a range of viable alternatives to its use, including alternative chemistries, as well as non-toxic products like steel, concrete, and fiberglass. And like penta, there is a small group of individuals profiting generously while people and the environment continue to be harmed. While EPA should be applauded for finally cancelling penta, its phase out period is far too generous. If the agency wants advocates to see it is serious about protecting health and the environment, this action can only be the first step as part of broader, long-overdue efforts to clean up the wood preservative market.

Beyond Pesticides has extensive documentation on the history of penta production and regulation. For more information see the following articles:

See Beyond Pesticides Wood Preservatives webpage

All unattributed positions and opinions in this piece are those of Beyond Pesticides.

Source: EPA Final Registration Review Decision for Pentachlorophenol (via Regulations.gov)

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