Docket No.
In re:
Petition For Suspension and
Cancellation of Chromated Copper
Arsenate
INTRODUCTION
Beyond Pesticides/National Coalition Against the Misuse of Pesticides (NCAMP), Agricultural Resources Center, Clean Water Action, Center for Health, Environment and Justice, Farmworker Justice Fund Inc., Healthy Building Network, Learning Disabilities Association of America, Greenpeace U.S.A., Northwest Coalition For Alternatives to Pesticides, Pesticide Action Network North America, Washington Toxics Coalition, and Vermont PIRG hereby petition the Administrator of the Environmental Protection Agency (EPA) to issue a Notice of Intent to Cancel the registration of the wood preservative chromated copper arsenate (CCA) pursuant to Section 6 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). We further request that the Administrator suspend the registration of CCA under FIFRA Section 6 (c) (1), on the ground that CCA-treated wood causes unreasonable adverse effects on public health and the environment that cannot be prevented in the time necessary to conduct cancellation proceedings.
As of 1987, EPA had instituted some mitigation measures governing CCA's use as a wood preservative. EPA allowed continued use of CCA as a wood preservative only because of the lack of suitable alternatives. Now, however, economical alternatives, less toxic than CCA, but equally effective, are available. Accordingly, the suspension and subsequent cancellation of CCA will not create serious economic or social hardships. Ultimately, the risks presented by CCA's registration outweigh any potential benefits, both economic and social, associated with CCA's use.
Beyond Pesticides/NCAMP, the lead petitioner, is a non-profit, 501(c)(3), public interest organization incorporated in the District of Columbia. It was founded in 1981 and has a membership of approximately 1,200 organizations and persons from every state. Beyond Pesticides/NCAMP promotes pesticide safety and the adoption of alternative pest management strategies that reduce or eliminate dependency on toxic chemicals as a means of controlling pests such as insects, rodents, weeds, and fungi. Beyond Pesticides/NCAMP bases this petition on scientific evidence, including evidence compiled recently, demonstrating that CCA's continued registration will result in dramatic and dangerous consequences for public health and the environment.
Agricultural Resources Center is a private, nonprofit public interest organization which engages in research and public education on issues and policies related to safe food, family farm agriculture and preservation of natural resources with a special interest in pesticides. Clean Water Action (CWA) is a national organization working to ensure clean, safe and affordable water, prevention of health-threatening pollution and creation of environmentally-safe jobs and businesses. CWA has more than 700,000 members nationwide. Center for Health, Environment and Justice seeks to help local citizens and organizations come together and take an organized, unified stand in order to hold industry and government accountable and work toward a healthy, environmentally sustainable future. The Farmworker Justice Fund Inc. is a national advocacy organization founded in 1981 to improve the living and working conditions for migrant and seasonal farmworkers and their families. The Healthy Building Network advocates the use of safer, ecologically superior building materials as a means to a healthier indoor environment and global environmental preservation. Learning Disabilities Association of America is dedicated to identifying causes and promoting prevention of learning disabilities and to enhancing the quality of life for all individuals with learning disabilities and their families by encouraging effective identification and intervention, fostering research, and protecting their rights under the law. Greenpeace U.S.A. works throughout the world to protect oceans and ancient forests, and to fight toxic pollution, genetic engineering, global warming, and nuclear threats. The Northwest Coalition for Alternatives to Pesticides works to protect people and the environment by advancing healthy solutions to pest problems. Pesticide Action Network North America works to replace pesticide use with ecologically sound and socially just alternatives. Washington Toxics Coalition is a non-profit, member-based organization dedicated to protecting public health and the environment by identifying and promoting alternatives to toxic chemicals. Vermont Public Interest Research Group is the state's largest environmental and consumer watchdog organization that serves 20,000 members.
FACTUAL BACKGROUND AND EVIDENCE OF HARM
I. THE HAZARDOUS NATURE OF CCA
CCA is in a category of chemicals known as inorganic arsenicals. It is a mixture of arsenic acid, hexavalent chromium (chromium (VI)), and copper oxide, plus unlisted "inert" ingredients that vary in proportions from product to product.
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.
A. Arsenic
According to the United States Geological Survey (USGS), approximately 34,000 metric tons of arsenic was consumed in the United States in 2000, and production of CCA accounted for more than 90 percent (or well over 30,000 metric tons) of domestic consumption of arsenic. Arsenic is found in at least 1,014 of the 1,598 current or former National Priorities list sites, which are the most serious hazardous waste sites that EPA has identified in the nation. The number of sites where arsenic is found will most certainly increase as more sites are evaluated.
Arsenic is a known human carcinogen. Several studies have shown that inorganic arsenic can increase the risk of lung cancer, skin cancer, bladder cancer, liver cancer, kidney cancer, and prostate cancer in humans. The International Agency for Research on Cancer, the U.S. Department of Health and Human Services, and EPA have determined that inorganic arsenic is a human carcinogen based on sufficient evidence from human data. As recently reported by the National Research Council, human epidemiological studies in Taiwan, Chile, and Argentina offer evidence that chronic ingestion of inorganic arsenic causes bladder, lung and skin cancer. Chronic exposure to arsenic also causes damage to internal organs. Arsenic poisoning damages mucous membranes, irritates eyes, causes darkening and lesions of the skin, damages and inflames the liver, damages the heart, causes hearing loss, and results in degeneration of the peripheral nervous system.
The most common route of exposure to arsenic is ingestion. Therefore, it is not surprising that gastrointestinal (GI) problems are associated with acute arsenic poisoning. The predominant GI effects of ingestion are vomiting, abdominal pain, and diarrhea. Other GI effects include inflammation and eventual sloughing of the mucous membrane in the mouth, pharynx, and esophagus. The central nervous system is also affected by acute exposure, with symptoms ranging from headache, dizziness, and confusion to muscle weakness and spasms, hypothermia, lethargy, delirium, coma, and convulsions. Acute exposure also damages the kidney, heart, and liver.
According to the Agency for Toxic Substances and Disease Registry (ATSDR), "Inorganic arsenic has been recognized as a human poison since ancient times." While large oral doses can be fatal, swallowing lower levels of inorganic arsenic can cause irritation of the stomach and intestines, an impaired nerve function that creates a sensation of "pins and needles" in the hands and feet, and decreased production of red and white blood cells, which may cause fatigue, abnormal heart rhythm, and blood-vessel damage resulting in bruising.
EPA has
calculated an oral cancer slope factor for arsenic of 1.5 per mg/kg-day.
This cancer slope factor is used to estimate cancer risks associated with
exposure to arsenic from both oral and dermal routes. EPA has also developed
a reference dose for non-cancer health effects of arsenic exposure of
0.0003 mg/kg-day. EPA has determined that this oral reference dose represents
a safe dose (i.e., one that a person could receive every day without unreasonable
risk of non-cancer health effects).
B. Hexavalent Chromium
Hexavalent chromium is a known human carcinogen. Several studies have
shown that hexavalent chromium compounds can increase the risk of lung
cancer. Animal studies have also shown an increased risk of cancer. The
International Agency for Research on Cancer, the U.S. Department of Health
and Human Services, and EPA each determined that hexavalent chromium is
a known human carcinogen.
The Agency for Toxic Substances and Disease Registry reports that breathing
high levels of hexavalent chromium can cause irritation to the nose, resulting
in runny nose, nosebleeds, and ulcers and holes in the nasal septum. Ingesting
large amounts of hexavalent chromium can cause stomach upsets and ulcers,
convulsions, kidney and liver damage, and even death. Skin contact with
certain hexavalent chromium compounds can cause skin ulcers. Allergic
reactions consisting of severe redness and swelling of the skin have been
noted.
C. Injuries
Caused By CCA
Many people have been diagnosed as suffering from acute arsenic poisoning
after exposure to CCA-treated wood. For example:
·
Construction workers in Monterey, California developed symptoms consistent
with acute arsenic poisoning while building a public fishing pier;
· A man in Poulsbo, Washington continues to suffer from facial
paralysis and lack of strength from what doctors diagnosed as severe arsenic
poisoning;
· A man in Indiana tested positive for arsenic after becoming ill
and vomiting blood;
· A family in Wisconsin suffered seizures and blackouts after burning
CCA-treated wood in their stove;
· A woman in Salt Lake City, Utah had two fingers amputated as
a result of a CCA-treated wood splinter.
In addition, the Incident Data System of EPA 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."
· "In a report dated 1/1/94, a construction supervisor reported
'ruined' nerves in feet and legs. Believes saw dust and fumes from cutting
and routing much CCA-treated lumber are responsible."
· "In an incident report dated 1/01/95, pressure treated wood
caused a chronic rash that persisted for 3 years. The rash was subsiding
when, in 9/98, the person cut some pieces of CCA-treated wood and the
rash returned."
· "On 5/16/95 a person received a splinter from CCA-treated
wood, which then developed into a severe infection requiring surgery.
Dorsal cellulites, ascending lympangitis, and acute tenosynovitis were
reported."
· "Sawdust from CCA-treated wood blew into a clerk's eye.
The eye became swollen and irritated. The report indicated that the clerk
had previously been sawing the wood and had worn safety goggles."
· "Two workers were exposed while working with CCA-treated
wood. Symptoms reported include headache, nausea, shakiness, and thirst."
· "A worker not wearing protective gloves was handling CCA-treated
wood and wiped his eye with his contaminated hand. Eye swelling and redness
was reported."
· "A worker developed a rash on both forearms after handling
CCA-treated lumber. No gloves or arm protection was worn."
· "A lumber mill worker reported nausea and headache radiating
down to shoulders after boring holes in wood to check penetration of CCA
treatment."
· "A wood treatment facility worker experienced eye irritation
after CCA from freshly treated lumber splashed into his eye."
II. ARSENIC AND CHROMIUM LEACH FROM CCA-TREATED WOOD INTO SOIL, WATER,
AND ON TO THE SURFACE OF STRUCTURES
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 and environmental health. 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
1 additional case in 100 and 1 in 1,000. EPA typically finds that a risk
that a pesticide causes 1 additional case of cancer in 100,000 to 1 million
is unacceptable. The studies outlined below have found that children could
receive doses of arsenic as high as 1,260 µg from touching CCA-treated
wood.
A. Leaching Causes Increased Risks to Children
Children are more exposed to CCA-treated wood and soil more often than
adults because of where they play. Structures built with CCA-treated wood
are ubiquitous in our society, from playgrounds to home decks to boardwalks.
Children are regularly exposed to arsenic through playing in soil beneath
these structures and from simply touching the structures. Although the
contribution of dermal absorption of arsenic will be smaller than incidental
ingestion, it should not be ignored. This combination of facts creates
an imminent threat to the health of children.
A 2001 report published in Environmental Health Perspectives stated that an average five-year-old playing on an arsenic-treated play set for less than two weeks would "exceed the lifetime cancer risk acceptable under federal pesticide law." In a survey given to park administrators about wooden structures in their parks, the majority of respondents (66 percent) stated that their wooden structures were not sealed. If CCA-treated wood is not properly sealed, there is a higher risk of arsenic becoming dislodged, or leaching.
Arsenic when ingested is readily absorbed. This fact is significant because scientists have established that children often put their hands and other objects into their mouths. A recent study using video tape to monitor children found that children put their hands in their mouths an average of six times per hour, ranging up to 45 times per hour for some children. Daily estimates of soil ingestion by children average 179 mg/kg.
According to ATSDR, children may be more susceptible to health effects from inorganic arsenic than adults. Studies suggest this is because children may be less efficient at converting inorganic arsenic to a less harmful organic form.
B. Studies From 1980s and 1990s
The Department of Health Services of the State of California (DHSSC) conducted a study of playground structures to determine the health hazard posed to children by heavy-duty wood preservatives, including CCA. DHSSC had volunteers rub CCA-treated playground equipment and measured the amount of arsenic and chromium found on their hands. DHSSC determined that a child could receive doses of arsenic ranging from 236 µg to 1,260 µg, and doses of chromium ranging from 351 µg to 575 µg. The average dermal loading (corrected for surface area) was 50 µg/100 cm2. DHSSC concluded that theoretical increase in lifetime cancer risk from arsenic exposure from playgrounds is between 1.0 x 10-4 and 5.0 x 10-3. These numbers are well above EPA's target of 1.0 x 10-6.
Health and Welfare Canada (HWC) conducted a study to determine the amount of arsenic and chromium leaching out of CCA-treated wood into the soil and onto the surface of the wood. HWC measured arsenic in the soil beneath CCA-treated structures as high as 9.573 mg/kg, with background levels less than .0371 mg/kg. The surface wipe samples contained from 0.5 µg to 322 µg (mean 42.9 µg) of arsenic, and 1.2 µg to 254 µg (mean 27.8 µg) of chromium collected from a total surface area of 10 cm2. Correcting for surface area, the average amount of dislodgeable arsenic was 429 µg/100 cm2. A second, similar study prepared for HWC reported, "on all sampling occasions, there was significant leaching of copper, chromium and arsenic." Rainwater run-off samples contained concentrations ranging from 1.49 mg/kg to 9.19 mg/kg for arsenic, and from 0.6 mg/kg to 3.75 mg/kg for chromium. Soil samples revealed arsenic levels as high as 80 mg/kg for arsenic, and 53.8 mg/kg for chromium. Background levels did not exceed 3.4 mg/kg.
The Connecticut Department of Analytic Chemistry (CDAC) conducted studies to determine the levels of arsenic and chromium leaching out of CCA-treated wood decks. The CDAC found levels of arsenic in the soil as high as 350 mg/kg with a background average of 3.7 mg/kg. Chromium was found in the soil at levels as high as 154 mg/kg, with background levels averaging 20 mg/kg. Another study by CDAC reported on arsenic and chromium on the surface of CCA-treated wood. The levels of arsenic dislodged from the wood surfaces, after 1 month of weathering (nominal), ranged from 6 to 122 µg/100 cm2, and averaged 40 µg/100 cm2.
The Maine Bureau of Health (MEBOH) conducted an evaluation of potential health risks to children arising from exposure to arsenic in CCA-treated wood. MEBOH considered four exposure pathways including incidental ingestion of soil contaminated with CCA leachate, dermal contact with such soil, incidental ingestion of dislodgeable arsenic from contact with wood surfaces, and dermal exposure to dislodgeable arsenic. In a draft of their report, MEBOH determined that incidental ingestion of arsenic from hand-to-mouth activity after skin contact with wood surfaces and transfer of dislodgeable arsenic represents the greatest contribution to total exposure, comprising approximately 75 percent, while ingestion of soil comprises approximately 20 percent of total daily exposure. MEBOH calculated cancer risks associated with exposure to dislodgeable arsenic that far exceed EPA's target of 1 x 10-6 and concluded:
Assuming
the lower bound estimate of hourly frequency of skin-to-mouth contact
of 2 times per hour (and assuming that the hand is the body part most
frequently contacting the mouth), and a conservative estimate of 2 hours
of per day [sic] during good weather, a child who plays on or around CCA-treated
structures 30 days per year could receive arsenic exposure in excess of
the reference dose for noncancer effects. A child who plays on or around
CCA-treated structures 90 days per year will have an estimated cancer
risk of 1 x 10-4.
C. Studies from 2000 and 2001
In a recent study, Stephen Roberts, Ph.D., with the University of Florida's
Center for Environmental & Human Toxicology, conducted an analysis
of three formal assessments of risk resulting from dislodgeable arsenic
exposure through direct contact with CCA-treated wood. The studies include
the above referenced DHSSC study from 1987, a study by the Consumer Product
Safety Commission (CPSC) in 1990 and a third conducted by Hazardous Substances
and Waste Management Research, Inc. (HSWMR) in 2000 and paid for by the
American Wood Preservers Institute (AWPI). As part of that analysis, Dr.
Roberts calculated the risk of cancer, based on EPA's cancer slope factor,
associated with a range of levels of dislodgeable arsenic, assuming daily
exposure for five years:
Table 1. Cancer risks and daily doses associated with exposure to CCA-treated wood with different levels of dislodgeable arsenic
Dislodgeable
Arsenic (µg/100 cm2) Dose(µg/day) Cancer Risk
1 0.76 4.22 x 10-6
10 7.6 4.22 x 10-5
25 18.9 1.06 x 10-4
35 26.7 1.48 x 10-4
50 38.1 2.11 x 10-4
100 76 4.22 x 10-4
250 191 1.06 x 10-3
632 482 2.67 x 10-3
Dr. Roberts concluded:
Available data indicate that the plausible range of arsenic doses that could result from incidental contact includes doses high enough to be unacceptable from a health protection standpoint. Until exposure to arsenic from CCA wood can be better characterized, and greater assurances provided that incidental contact does not offer the potential for health-threatening arsenic exposures, it would seem to be prudent public health policy to take steps to mitigate exposure. For new structures, these steps might include using other materials or wood treated with a preservative that does not contain arsenic.
The Florida Center for Solid and Hazardous Waste Management (FCSHWM) in cooperation with the Florida Department of Environmental Protection (DEP), the University of Florida and the University of Miami has been working on CCA-treated wood projects since 1997. FCSHWM sampled soil from under 65 decks made of CCA-treated wood in various sites in Gainesville, Tallahassee and Miami. FCSHWM found an average of 28.5 mg/kg of arsenic with an average background level of 1.5 mg/kg.
The work of FCSHWM led the St. Petersburg Times to conduct soil samples at five community parks that had CCA-treated wood equipment. The results ranged from 3.3 mg/kg arsenic at Sims Park in New Port Richey, FL, to 9.3 mg/kg arsenic at Al Lopez Park in Tampa, FL, which is more than 11 times higher than the Florida DEP's safety limit. These findings led a number of Florida cities to test the soil in their own playgrounds, including Clermont's Palatlakaha Recreation Area, where officials found arsenic levels at 27 times what Florida DEP considers safe. Florida State officials eventually closed a number of parks as a safety precaution due to the elevated levels of arsenic.
Recent field and laboratory tests in New York also demonstrate that hazardous amounts of arsenic are leaching out of CCA-treated playground equipment and into the soil. A local environmental group, Rochestarians Against the Misuse of Pesticides, initiated the studies. In October 2001, soil samples tested by an independent laboratory in Rochester, New York indicated that levels of arsenic in soil exceed Florida guidelines of 7.5 parts per million (ppm) in four of five area playgrounds: 180 ppm at Park Road School (24 times greater than Florida guidelines); 44.2 ppm at Thornell School; 116 ppm at Henrietta TownPark; and 106 ppm at Maplewood Park. The fifth playground, which did not exceed arsenic limits, was a control site and did not contain CCA-treated wood. One month after these results were made public, Pittsford Central School District had conducted its own tests and decided to demolish two 1980s playgrounds made with CCA-treated wood.
Numerous media outlets have conducted studies on arsenic leaching out of CCA-treated wood into the soil around the wood and onto the surface of the wood. KMSP-TV, serving the Twin Cities in Minnesota, conducted wipe-tests on 15 sources of CCA-treated wood. The tests showed an average concentration of arsenic on the wood of 26.42 µg/100 cm2. Based on EPA numbers, one additional child in 1,000 will face cancer from that exposure. That risk is 1,000 times higher than EPA's acceptable risk of one in one million. Fox 5 News in Washington, DC sampled soil collected from beneath five CCA-treated wood structures. Fox 5 measured arsenic levels as high as 63 mg/kg with an average of 36.6 mg/kg.
D. Chemicals From Treated Poles Seep Into Surface and Groundwater
The toxic chemicals in treated poles can also be carried into both surface water and groundwater in concentrations that can contaminate drinking water supplies and affect aquatic organisms. Bell Canada uses mostly CCA-treated poles in Ontario, with each of its storage facilities containing 10-400 poles. The company tested soil and groundwater at 14 pole storage sites in Ontario and found that groundwater and surface soil concentrations of wood preservative chemicals exceeded provincial clean-up criteria at 9 sites by factors of 2 to 10.
On September 12, 2001, the U.S. National Academy of Sciences (NAS) released Arsenic in Drinking Water: 2001 Update which confirms that the arsenic standard for drinking water should be at least as tough as 10 parts per billion, the standard set in the final weeks of the Clinton Administration and recently approved by the Bush Administration. The NAS report cites new studies that strengthen the link between bladder and lung cancer and exposure to arsenic in drinking water. "Even very low concentrations of arsenic in drinking water appear to be associated with a higher incidence of cancer," said Robert Goyer, chair of the NAS committee that wrote the report and professor emeritus of pathology, University of Western Ontario.
In the report, NAS evaluates the cancer risk posed by daily consumption of water with arsenic levels of 3, 5, 10 and 20 parts per billion. The results show that men and women who daily consume water containing 3 parts per billion of arsenic have about a 1 in 1,000 increased risk of developing bladder or lung cancer during their lifetime. At 5 parts per billion, the risk is about 1.5 in 1,000; at 10 parts per billion, it is greater than 3 in 1,000; and at 20 parts per billion, it is close to 7 in 1,000. The report's findings are consistent with those of a 1999 Research Council report that found high risks of cancer at EPA's maximum allowable level for arsenic in drinking water, which at the time was 50 parts per billion.
E. Disposal Creates Additional Leaching of Arsenic and Chromium
CCA leaching problems associated with treated wood uses are exacerbated by the disposal of treated wood products. There is currently no standard procedure for properly disposing of CCA-treated wood. In Florida, a significant amount of CCA-treated wood waste is recycled and/or sold as boiler fuel. Treated wood that is burned produces ash laden with CCA chemicals, and burning of CCA-treated wood also releases chromium into the air. So far, disposal as hazardous waste is an option that has been avoided. While this represents an out-of-pocket savings for the utility industry in the short-term, it represents a real hazard to communities with associated long-term cleanup costs. The Electrical Power Research Institute estimates that "by avoiding the hazardous waste designation, the utility industry saved $15 billion between 1989 and 1993."
To measure the toxicity of a solid waste, EPA's Toxicity Characteristic Leaching Procedure (TCLP) is used. TCLP tests are conducted by measuring contaminants using an acetic acid-based leaching solution. If a sample exceeds the TCLP limits, it is considered a hazardous waste. A study conducted by researchers from the University of Miami and the University of Florida shows that ash produced from CCA-treated wood exceeds TCLP limits for arsenic by a factor of 10 to 100, depending upon the retention levels of the wood sample, and that it exceeds the Florida Groundwater Guidance Concentrations for arsenic.
CCA-treated wood also ends up in unlined construction demolition landfills because it is assumed to be nontoxic. Or worse, it is sold as red-colored mulch for garden use, a recent fad in Florida. Shredded CCA-treated wood mulch enhances the leaching process, spreading chemicals over a wider area. Consumers are not informed of these dangers. Of the 29,000 tons of CCA-treated wood that has been imported into Florida since 1975, less than 2 percent has been disposed of thus far. As the typical lifespan of this type of pressure-treated wood is 25-40 years, and most was produced in the late 1980's, the U.S. will have a significant need for standardized, safe disposal methods. This issue will be further discussed below.
III. PRIOR AGENCY ACTION REGARDING INORGANIC ARSENICALS
Prior to 1978, inorganic arsenicals were used in a significant number of pesticide products to control insects, fungi, weeds, and rodents, as well as in wood preservatives. In 1978, EPA began investigating this family of chemicals because of concerns that the products presented risks of cancer, genetic mutation, and birth defects. EPA issued Notices of Rebuttable Presumption Against Registration, now called Special Review, for pesticide products containing the three heavy-duty wood preservatives, namely inorganic arsenicals, creosote and pentachlorophenol. Only chemicals that trigger serious health and environmental concern are subjected to this fast-track review. During the Special Review, EPA considered the use of inorganic arsenicals as wood preservatives separately from all other uses.
In 1981, EPA published Position Document No. 2/3 on these wood preservatives, proposing action based on the Agency's determination that uses of inorganic arsenical wood preservatives could result in unreasonable adverse effects, including oncogenic, mutagenic, teratogenic and neurotoxic effects. In 1988, after determining that arsenic posed an unacceptable risk to workers and others exposed to it, the agency banned uses of non-wood preservative pesticide products containing inorganic arsenicals. As of 1993, EPA had prohibited all uses of inorganic arsenicals except for use in wood preservatives.
A. Flaws of the Prior Review
One of the significant shortcomings of EPA's review of the inorganic arsenicals was the failure to consider the special hazard to children from playing on playground equipment made from CCA-treated wood. EPA acknowledged this gap in the review and determined that "with the available data, the exposure of children to the end uses of the treated wood (playground equipment) cannot be estimated." When EPA issued another position document on wood preservatives in 1984, it again failed to address the issue of non-occupational exposure due to arsenic leaching out of CCA-treated wood into the soil and onto the surface of structures.
Moreover, EPA's prior consideration of CCA neglected to consider exposure associated with reuse and recycling of CCA-treated wood. Numerous exposure scenarios, both occupational and non-occupational, result from recycling CCA-treated wood. The applicable regulation (40 C.F.R. § 261.24 (1993)) allows for a maximum concentration of 5.0 mg/L (or ppm) of both arsenic and chromium in an extract from a representative sample of waste.
According to studies conducted by the Florida Center for Solid and Hazardous Waste Management (FCSHWM), results of standardized leaching tests show that new CCA-treated wood routinely leaches enough arsenic to fail EPA's TCLP test. The TCLP test is conducted using a simulated landfill acid and involves reducing the size of the tested material to less than 9.5 mm. Responding to the criticism that the TCLP test requirements are unrealistic when assessing various management scenarios, FCSHWM both conducted a number of alternative leaching tests and tested larger particle sizes. Nonetheless, in tests using the Synthetic Precipitation Leaching Procedure (SPLP), which simulates rainwater, both arsenic and chromium leached amounts similar to the one shown by the TCLP test. The highest arsenic level measured in any sample was 12.5 mg/L (TCLP), while the highest chromium level measured was 5.14 mg/L (SPLP). Given these results, if a regulatory exemption were not in place, discarded CCA-treated wood would frequently require management as hazardous waste.
FCSHWM has evaluated the leaching characteristics of un-burned CCA-treated wood and construction and demolition (C&D) debris wood mulch. FCSHWM has documented that the leaching of all three metals increases as the size of the wood decreases. In 1997, approximately 6 percent of the recovered wood stream at C&D recycling facilities in Florida was documented to be CCA-treated wood. Research conducted in 1999 at three Florida C&D debris recycling facilities found CCA-treated wood to make up between 9 percent and 30 percent of the recovered wood. These findings are of even greater concern because an increased amount of CCA-treated wood is expected to enter the waste stream over the coming decades. FCSHWM collected 20 samples of C&D debris wood mulch. Arsenic levels as high as 558 µg/L and chromium levels as high as 229 µg/L were collected from the wood mulch. There is no reason to believe results elsewhere in the United States would differ significantly from these Florida results. EPA's prior analyses ignored these exposure scenarios.
In 1999, Beyond Pesticides conducted a survey of over 3,000 utility companies to analyze how the companies store, use, re-treat, and dispose of treated wood utility poles. Utilities from 24 states and Canada responded to the survey. Over 68 percent of the utilities that responded routinely give away or sell their used utility poles to the public. The utility poles were milled into landscaping timbers and other types of lumber. (One of the utilities required recipients of discarded poles to sign a form freeing the utility from any liability before taking possession of the poles.) Neither the mill operators nor the general public that receive discarded CCA-treated wood are provided information regarding the risks associated with the exposure of arsenic and hexavalent chromium.
B. Failure
Of EPA's Consumer Awareness Program
One outcome of EPA's 1984 Special Review of the inorganic arsenicals was
a proposed mandatory Consumer Awareness Program (CAP). 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 convincing EPA to weaken the program. Thus, when EPA
published a revised proposal in 1986, the mandatory CAP had been converted
into a voluntary CAP, over which EPA had no enforcement authority. EPA
stated 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 stated:
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.
By 1994, EPA had noted a lack of participation nationwide in the voluntary
CAP. This year, EPA again stated that "the previous consumer awareness
program was not adequately informing the public." In short, EPA's
calculation of acceptable risk assumed that consumers and end-users would
be provided with Consumer Information Sheets when they purchased CCA-treated
wood, but the CAP is not serving that function. This failure adds to already
excessive risks, and CCA's registration should be canceled.
EPA continues to "mitigate risks" through the use of the voluntary and unenforceable CAP program, which state enforcement agencies and EPA itself acknowledge has been a failure. Through a series of meetings, EPA negotiated alterations to the program in June, 2001 that addressed end-tag labeling of wood, in-store lumber bin stickers and signs, consumer information sheet redesign and other communication avenues. EPA decided not to institute a mandatory and enforceable program, despite the agency's earlier warning (cited above) in 1986 that a failure to conform to the voluntary agreement would result in the issuance of a rule resulting in a mandatory consumer and end-user awareness program. The failure of this program and EPA's continued reliance on an approach that has a proven track record of failure put the public and end-users at serious continued and unreasonable risk. After years of failure, the agency has no evidence that the continuation of an unenforceable and voluntary program, albeit redesigned, will ensure that the information EPA deems necessary to protecting health and safety will actually get to the consumer and end-user. All evidence suggests that it will not.
IV. INCREASE IN AVAILABILITY OF ALTERNATIVE TECHNOLOGIES HAS SHIFTED RISK-BENEFIT ANALYSIS AWAY FROM CONTINUED CCA USE
In 1981, when EPA analyzed the heavy-duty wood preservatives as part of the Special Review process, it chose not to cancel CCA's registration primarily because of a lack of available alternatives. The agency explained:
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 [sic]. 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.
The health and environmental risks discussed above must be evaluated against
the availability of alternative materials and approaches that may be safer.
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. It
is also important to consider external pollution costs relating to chemical
cleanup and health care associated with wood preservative-induced illnesses.
Some of the alternatives to CCA include: wood-preserving chemicals that contain neither arsenic nor chromium, such as Alkaline Copper Quaternary (ACQ), Copper Boron Azole (CBA), Copper-8-quinolinate, and borate-based wood preservatives; sustainably harvested and naturally pest resistant wood species, such as cedar and redwood; recycled steel; recycled plastic marine pilings; and composite lumber made with recycled plastic. 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 technology used to chemically treat wood with CCA or one of the alternative chemicals is essentially identical. 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. Alternative technologies' share of the marketplace will expand as manufacturers provide environmentally sound replacements for CCA-treated wood.
A. Playground Equipment Manufacturers are Already Moving 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.
Playground equipment is also made with steel, aluminum, and plastic. While
these types of playgrounds may cost 20 to 80 percent more than those made
with CCA-treated wood, they last much longer and are virtually maintenance
free. Manufacturers and distributors say these alternative materials last
up to 100 years. Purchasers, children, and school nurses like these materials
better, too: they are more durable and require much less maintenance than
wooden structures, they can be created in a variety of colors, and they
do not give children splinters or pinch injuries.
B. Alternative Decking Materials
The most common alternatives to pressure-treated wood for decking include redwood, which is 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).
C. Viable Utility Pole Alternatives
In the case of wood, the utility industry expects 40 to 50 years of service (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. There are differences in maintenance costs associated with different materials. Wood may require retreatment, which some utilities perform on a set cycle, while steel, concrete and fiberglass do not. 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. However, 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 has been cited as the most common alternative utility pole material in a Swedish report. The same is true in the United States, although steel alternatives represent a small but growing alternative when compared with the use of treated wood utility poles. There are a number of other materials that are also available for poles, such as fiberglass reinforced composite. Additional options include using ACQ-treated wood and burying utility lines underground.
LEGAL STANDARDS
I. CANCELLATION
FIFRA authorizes EPA to cancel a pesticide's registration if, "when used in accordance with widespread and commonly recognized practices, [the pesticide] generally causes unreasonable adverse effects on the environment." "Unreasonable adverse effects on the environment" include "any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide." As discussed in detail on pages 2 through 13, above, the evidence shows that continued registration of CCA results in serious adverse effects on public health-specifically, increased risk of cancer among those exposed to CCA-treated wood products. Furthermore, recently developed alternatives to CCA will alleviate adverse economic consequences of CCA's removal from the marketplace. In a cancellation proceeding, the registrants bear the burden of proving that the FIFRA cost-benefit standard has been met, and registrants will not be able to meet that standard here. Thus, EPA should act expeditiously to issue a Notice of Intent to Cancel registration of CCA, and should set about preparing a comprehensive evidentiary record for cancellation proceedings.
II. SUSPENSION
FIFRA authorizes the EPA to suspend a pesticide's registration when the pesticide presents an imminent hazard to public health and the environment. An "imminent hazard" is "a situation which exists when the continued use of a pesticide during the time required for cancellation proceeding would be likely to result in unreasonable adverse effects on the environment." On a daily basis, CCA's continued registration creates an imminent hazard because there is a substantial likelihood that significant harm to public health will be experienced due to the seriousness and the immediacy of the consequences of exposure to CCA-treated wood. Furthermore, based on the nature and extent of the information presented in this petition, the risks to the public of continued use of CCA during the cancellation process far outweigh the benefits associated with its continued registration. In addition, for the reasons outlined above, EPA's conclusions in 1984 pose no impediment to suspension at this time. Consequently, FIFRA mandates that the EPA issue a suspension order to protect the public.
CONCLUSION
FIFRA authorizes EPA to act as a regulatory gatekeeper for pesticides. Under FIFRA, EPA has the power to protect the public from CCA by issuing a Notice of Intent to Cancel registration of CCA. As the foregoing evidence demonstrates, the legal standards for suspension and subsequent cancellation are met because CCA's continued registration causes unreasonable adverse effects on public health and the environment. Recent and reliable scientific evidence demonstrates that CCA presents an imminent hazard to public health. The toxic effects of CCA have been thoroughly documented and are virtually uncontested. Extensive studies, performed by both government and private entities, reveal a positive correlation between public health risks, particularly an increased risk of cancer, and CCA exposure through contact with wood preservatives. In addition, any benefits created by CCA wood preservatives are drastically undercut by the impossibility of introducing CCA into the environment with adequate safety measures. For nearly two decades, the wood preservative industry has failed to comply with EPA's voluntary consumer awareness program designed to alert the public to the dangers of CCA-treated wood. As a result, consumers remain unaware of the hazards associated with exposure to CCA-treated wood, which include respiratory, dermatologic, and neurological symptoms. Moreover, the wood preservative industry has not developed a means to protect the public from arsenic leached from CCA-treated wood.
The outcome of a CCA risk-benefit analysis, which is a necessary component of cancellation and suspension proceedings under FIFRA, is clear because the carcinogenic effects of arsenic are dramatic, especially with regard to children, who are most vulnerable to the risks associated with CCA-treated wood. Furthermore, given the availability of viable and economical alternatives to CCA, the economic and social impacts of cancellation do not outweigh the public health risks of continued registration. Therefore, continued registration of CCA presents an imminent hazard that, at a minimum, warrants the expeditious initiation of cancellation proceedings.
REQUEST FOR RELIEF
Beyond
Pesticides/NCAMP requests that the EPA:
(1) Determine that CCA, when used as a component of wood preservatives,
causes unreasonable adverse effects on public health and the environment;
(2) Determine that CCA presents an imminent hazard to public health and the environment because the unreasonable adverse effects resulting from CCA's use cannot be avoided within the time necessary for cancellation hearings;
(3) Issue a Notice of Intent to Cancel the registration of all pesticide products containing CCA;
(4) Immediately suspend the registrations of all pesticide products containing CCA;
(5)
Move as expeditiously as possible to complete the cancellation of all
pesticide
products containing CCA.
(6) Create national standards for disposing of all used CCA-treated wood, including mandating that it be disposed of as a hazardous waste in lined landfills and banning the recycling, burning and mulching of used wood products containing CCA.
Respectfully submitted,
Jay Feldman
Executive Director
Beyond Pesticides/NCAMP
cc: Agricultural Resources Center, Clean Water Action, Center for Health,
Environment and Justice, Farmworker Justice Fund Inc., Healthy Building
Network, Learning Disabilities Association of America, Greenpeace U.S.A.,
Northwest Coalition For Alternatives to Pesticides, Pesticide Action Network
North America, Washington Toxics Coalition, and Vermont PIRG