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Lawsuit Update

June 6, 2003

Beyond Pesticides v. EPA (Case No. 02-2419, filed December 10, 2002)
Beyond Pesticides, Communications Workers of America, Center for Environmental Health and Joseph and Rosanne Prager v. Christine T. Whitman, Administrator, U.S. Environmental Protection Agency

Re. lawsuit against EPA to stop use of the wood preservatives pentachlorophenol (penta), creosote and chromated copper arsenate (CCA). Beyond Pesticides et al. filed on December 10, 2002 in U.S. District (Washington, DC) a "Complaint for Declaratory and Injunctive Relief," and a "Plaintiffs' Request For Expedited Hearing on Motion For Preliminary Injunction," (see also "Plaintiffs' Memorandum of Points and Authorities in Support of Motion for Preliminary Injunction") asking the court to issue the following:

a. A finding that continued registration of pentachlorophenol creates an imminent hazard to public health and the environment, and preliminary and permanent injunctions ordering EPA to issue immediately a notice of cancellation, and to suspend the registration of penta as a wood preservative on an emergency basis pursuant to FIFRA § 6(c)(3), 7 U.S.C. § 136d(c)(3).

b. A declaratory judgment that EPA has unreasonably delayed in completing its regulatory actions on the three wood preservatives: penta, creosote and CCA which were initiated in 1978, and in responding to Beyond Pesticides' petitions to cancel and suspend their registrations, and that it has arbitrarily failed to re-assess its 1984 finding that no economically viable alternatives exist to wood treated with these pesticides.

c. An injunction ordering EPA to revise the now factually incorrect conclusions of the 1978 RPAR which concluded there were no adequate substitutes for pesticide-treated wood, to reflect the fact that adequate less-toxic and non-toxic substitutes now exist for all pesticide treated wood products. An injunction setting a schedule for EPA to expeditiously issue cancellation notices and initiate suspension proceedings pursuant to FIFRA § 6(b) and (c), 7 U.S.C. § 136d(b) and (c) for penta, creosote and CCA.

d. An injunction ordering EPA to grant all of the relief sought in Beyond Pesticides' petitions to cancel and suspend the registrations of penta, creosote and CCA, or in the alternative, setting a schedule for EPA to expeditiously rule upon all of the requests for relief in Beyond Pesticides' petitions.

e. A declaratory judgment that EPA's decision to exempt arsenical-treated wood from hazardous waste regulation, announced as a "temporary" rule at 45 Fed. Reg. 78530 (November 25, 1980), but kept in place based on a determination made in the course of the RPAR review of the wood preservatives under FIFRA, improperly relied upon determinations by the FIFRA program balancing pesticide risks and benefits rather than the appropriate RCRA hazardous waste characteristic test.

f. An injunction ordering that EPA to broaden its proposed "phase-out"of CCA to include all uses of CCA and to complete the phase-out within 90 days from the date of entry of said order, and to clarify that under EPA's treated article exemption all sales of CCA-treated wood must halt on the effective date of the phase out.

g. An order that EPA pay Plaintiffs' reasonable attorney's fees and costs related to this action pursuant to 28 U.S.C. § 2412(d).

h. Such additional relief as the Court deems just and proper.

Preliminary Injunction on Penta

Beyond Pesticides has pursued a preliminary injunction (PI) for penta because of the extraordinarily high risks (3x10-0) for groundline application of penta among other high risk factors. As the request for preliminary injunction document states, "An expedited hearing on the motion for preliminary injunction is simply a way to assure that this interim emergency remedy is available at the earliest possible date, in order to protect public health and the environment." The PI can be decided on the pleadings and facts in Beyond Pesticides' complaint. The preliminary injunction establishes a short timeframe for reviewing Beyond Pesticides' request that penta be suspended on an emergency basis. At the same time that the court documents were filed, Beyond Pesticides submitted a motion for production of documents or the administrative record.

The judge did not rule on this matter until June 20, 2003, at which time he denied the motion on jurisdictional grounds. He maintains that the basis for the preliminary injunction, Beyond Pesticides' claim that EPA has violated the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) by not acting to cancel because of EPA's own extraordinarily high risk factors, is not reviewable by the court because there is no final agency action as yet, given that the chemical in question is currently in EPA's re-registration. Beyond Pesticides will argue as the case moves forward that there is case law which supports court intevention precisely because of agency inaction over a lengthly timeframe, which is the case here, according to plaintiffs. And, in fact, the judge does acknowledge that there are situations when inaction by EPA under FIFRA is cause for judicial review.

EPA Opposition

EPA submitted on December 19, 2002 a reply brief "Defendant's Memorandum in Opposition to Motion for Preliminary Injunction," along with two affidavits (affidavit 1 and affidavit 2) from EPA staff.

Judge Richard J. Leon on Motion to Produce Administrative Record

Judge Richard J. Leon then held a hearing on January 7, 2003 on the narrow issue of the production of EPA documents or the administrative record. Beyond Pesticides supplemented the record in response to questions from the bench in a supplement to the motion. The judge denied the Beyond Pesticides motion on January 10. Beyond Pesticides submitted a motion to strike EPA staff affidavits and clarify the Judge's previous order. In response to EPA's opposition stated in the reply brief, Beyond Pesticides filed "Plaintiff's Reply to EPA's Opposition To Motion For Prelminary Injunction."

Hearing Held on January 21, 2003

A hearing was held on January 21, 2003 on the PI. A transcript of the hearing is available. In the meantime, the Penta Task Force, a coalition of pentachlorophenol producers, submitted an amicus brief in opposition to Beyond Pesticides' preliminary injunction and complaint. Plaintiffs then filed an objection to their submission with the court. EPA then submitted a filing supporting the Penta Task Force's entry into the case without restriction. The judge has not yet ruled on what, if any, portion of the Penta Task Force's brief will be considered by the court. Nor has he ruled on the preliminary injunction.

EPA's Response to the Complaint portion of the case, filed February 10, 2003

Meanwhile on February 10, 2003, the Justice Department on behalf of EPA, submitted its response to the chief complaint filed by Beyond Pesticides et al. The Department has asked the Court to dismiss the complaint, arguing that, FIFRA limits district court judicial review of agency action to 'the refusal of [EPA] to cancel or suspend a registration. . .and other final action of [EPA].' 7 U.S.C. § 137n(a). There has been no refusal by EPA to cancel or suspend any of the pesticide registration challenged by plaintiff, nor has there been any other final agency action subject to judicial review under FIFRA." At the same time, the Department accepts that under the Administrative Procedure Act (APA), the plaintiffs can argue "unreasonable delay," but argues that the claim is "meritless." Beyond Pesticides and others have sought agency action on the wood preservatives over a five-year period without response from EPA and argues that that agency has failed to carry out its responsibility under federal pesticide law. To require the public to wait indefinitely for "final agency action," as argued by EPA, maintains that the courts have no oversight when EPA fails to act to protect public and environmental health, as required by law. Because EPA is using a procedural argument, it has not addressed the claims, underlying the lawsuit, that the public and environment face serious risks associated with the continued use of penta, CCA and creosote, which could be replaced by less toxic, economically viable alternatives.

The chronology of (in)action, as outlined by plaintiffs to the court, follows:

1. In the 18 years since EPA concluded the wood preservatives RPAR [Rebuttable Presumption Against Registration, now Special Review] with a determination that despite risks which would otherwise mandate cancellation, continued use was justified by the lack of economically viable alternatives, a number of adequate substitutes for chemically-treated wood have become available, and the capacity for production of previously-known substitutes has increased to the point where the perceived "immense" "economic impact" that EPA relied upon as the basis for its decision to retain the registrations is no longer valid.

2. At least since1993, producers of alternative products to treated wood have had communications and meetings with EPA concerning the ability of their products to replace various uses of pesticide-treated wood.
3. Beyond Pesticides has communicated information about economical alternatives to pesticide-treated wood to EPA a number of times in various forms over the years since the conclusion of the 1984 RPAR. Most notably, its February 1997 report entitled, "Poison Poles: Their Toxic Trail and Safer Alternatives," furnished to EPA in 1997, includes a detailed analysis of the available substitutes for penta, creosote and CCA, including cost comparisons. The report concludes by urging that "hazardous wood preservatives . . . be removed from the market."

4. On June 2, 1997, Dr. Howard Freed, M.D. and a group of eleven other noted public health scientists and physicians, including members of Beyond Pesticides, wrote to EPA calling attention to studies that found wood preservatives in the "body fluids and tissues of humans in the general population," which raised concern because of these chemicals' "association with cancer, birth defects, [and] disruption of the endocrine system...". The scientists cited Beyond Pesticides' "Poison Poles" report, including its calculations showing that materials such as recycled steel and concrete could be used to begin replacing pesticide-treated wood cost effectively as the wood is taken out of service. The scientists pressed the Agency "to begin immediately an assessment of the various uses of treated wood and analyze the availability of alternatives that could replace the use of these very hazardous materials," and "as quickly as possible...to curtail the introduction of these chlorinated hydrocarbons [penta] into the environment...".

5. On July 9, 1997, Dr. Lynn Goldman, Assistant Administrator for EPA's Office of Pollution Prevention and Toxic Substances ("OPPTS") replied, assuring the scientists that their concerns were being addressed. She specified a timetable in which EPA expected to complete the Registration Eligibility Decision ("RED") on pentachlorophenol: Penta and all of the currently registered wood preservatives will be reassessed as part of EPA's ongoing reregistration program, which was established by the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) Amendments of 1988. As part of the reregistration review, EPA is requiring manufacturers (registrants) to submit additional data, including exposure data on wood treatment plant employees and the general population. Once the required studies are submitted, EPA will complete its analyses and issue a Reregistration Eligibility Decision (RED) on the continued use of pentachlorophenol on wood utility poles. A RED on penta is expected in FY 1998 by OPP's new Antimicrobial Division, which is currently hiring more scientists to perform reregistration reviews. This analysis will include additional consideration of the chemical's impact on human health and potential endocrine disruption effects. In response to the scientists' submission on the use of alternative materials instead of treated wood, the letter stated: "After the Agency completes the penta RED, it may make sense to carry out such a reassessment."

6. When the RED for penta had yet to be issued in February of 1999, Beyond Pesticides sought and was granted a meeting with Frank T. Sanders, director of EPA's Antimicrobial Division and his staff. Beyond Pesticides was informed that the penta RED was only in its draft stages, and the preliminary science chapter would not be available for public review until late 1999. The EPA representatives promised to share their preliminary findings with the public.

7. EPA released its draft Science Chapter to the wood treatment industry in the early summer of 1999. Beyond Pesticides obtained a copy in September, 1999. In the memorandum accompanying the report, EPA stated that the report addressed only penta as the active ingredient, and not its dioxin and furan microcontaminants. Based on its analysis of penta alone, EPA made the following findings:

- The lifetime cancer risk to children exposed to soil contaminated with penta leaching from utility poles was as high as 2.2 in10,000 (2.2 x 10-4), and that contact with the treated wood itself posed a cancer risk of 6.4 in one million (6.4 x 10-6). These risks are, respectively, 220 and 6.4 times EPA's usual one-in-a million threshold for "acceptable" risk.

- Residues of penta in drinking water, along with exposure from food and residential uses, "pose an unacceptable chronic risk to children."

- With regard to occupational exposures, despite risk reduction measures EPA had adopted in the 1980's, EPA found, based on "maximum protective measures," that 13 out of 14 exposure scenarios had unacceptable cancer risks. Certain categories of workers had lifetime cancer risks as high as 1.8 and 4.4 in 10, and 6.2 and 8.4 in 100, up to 4,400 times EPA's "acceptable" level of risk for occupational exposures. Utility pole installers were found to have a cancer risk of 6.6 in 1000, sixty-six times EPA's "acceptable" level. Most extreme, applicators of grease formulations of penta as groundline retreatments for existing utility poles had a risk of 3.4 out of 1 (apparently because an exposed worker who survived and continued in this occupation could be expected to incur additional cancers)
.
- Chronic non-cancer risks for occupational handlers "exceed the Agency's level of concern using maximum protective measures for all scenarios."

- EPA reaffirmed its earlier findings on the teratogenic (birth defect-inducing) and fetotoxic (toxic to fetuses) properties of penta.

8. On December 21, 1999, Beyond Pesticides submitted comments on the draft Penta Science Chapter to EPA. The comments called for cancellation of penta's registration. With the comments, Beyond Pesticides transmitted a copy of its report entitled "Pole Pollution-New Utility Pole Chemical Risks Identified by EPA While Survey Shows Widespread Contamination." This report reviewed EPA's draft science chapter on penta, noting EPA's findings of extremely high risks to wood treatment and utility workers and children, and reported a survey of utility companies which revealed that approximately 70% of the respondent utilities gave or sold their discarded poles to be reused by the public, resulting in exposures not considered by EPA in the Penta Science Chapter or elsewhere. Based on responses to the survey concerning the cost to utilities of various types of poles, the report concluded that "the cost differential between treated wood and recycled steel poles is negligible in the short-term and benefits steel in the long-term." The report concluded that by calling for the removal of penta from the market "because it is no longer needed."

9. On July 21, 2000, David C. Vladeck, of the Public Citizen Litigation Group, wrote to the EPA administrator on behalf of Beyond Pesticides, supplementing the June 7, 1997 letter from the physicians and scientists and making a "formal request to the agency to initiate a proceeding to cancel the remaining registration for Penta as a wood preservative." The letter recounted the history of Beyond Pesticides' efforts to have EPA remove penta from the market and summarized and resubmitted Beyond Pesticides' 1997 "Poison Poles" and 1999 "Pole Pollution" reports. The letter stated that EPA's failure to "reassess" penta in accordance with its previous commitments was in violation of the Administrative Procedure Act and of FIFRA. It further stated that rather than bring a court action at that time, Beyond Pesticides preferred to work with EPA, and was therefore renewing and supplementing its 1997 requests. The letter concluded by asking for a response within 30 days including EPA's projected timetable for action on penta.

10. On September 8, 2000, EPA responded to Mr. Vladeck's letter in a letter signed by Acting Assistant Administrator Susan H. Wayland. EPA's letter acknowledged Beyond Pesticides' request to "initiate proceedings to cancel the remaining registration for pentachlorophenol (penta) as a wood preservative." The letter further stated that data requested from the registrants on penta had been received, but data on CCA had not yet been received and was expected in the fall. "A decision was made to review the data for wood preservatives collectively." The letter further stated that the agency's reassessment of dioxin (a carcinogenic contaminant of penta) was expected to be completed by the end of the calendar year, and that the agency expected to finish the risk assessment on penta and begin the public review process in 2001.

11. Since that September, 2000 letter, EPA has not given any public indication of any progress on its assessment of penta, nor issued the RED originally promised for 1998. Nor has EPA issued RED documents for creosote or CCA.

12. On November 9, 2000 Connie Welch, Chief of EPA's Regulatory Management Branch II, Antimicrobials Division, attended a meeting on non-wood alternatives sponsored by Beyond Pesticides. Several producers of non-wood alternatives to wood preservative-treated products were present. Ms. Welch gave a presentation concerning the regulatory status of the wood preservatives. She informed the group that Richard Michell of EPA had been assigned to collect information from and about manufacturers of alternatives to treated wood products.

13. On August 23, 2001, Mr. Joseph Reilly, president of a company which produces a fiberglass alternative to treated wood utility poles, made a presentation concerning the economic, environmental and performance advantages of his product to Richard Michell and Karen Angulo of EPA.

13. On April 19, 2001 Beyond Pesticides wrote to EPA requesting that EPA "immediately begin" action to cancel, and suspend on an emergency basis, the registrations for CCA, penta and creosote. The letter noted that EPA's current review, which has dragged on since 1998 and is expected to continue through 2003, is unacceptable in meeting the urgent need to protect children from daily exposure to known human carcinogens, endocrine disruptors and highly neurotoxic chemicals.
The letter stated that there were alternatives to treated wood for utility poles, lumber, marine piles and railroad ties, and noted Beyond Pesticides' concern with the disposal of treated wood in unlined landfills and the regulation that exempts treated wood from hazardous waste designation.

14. EPA responded to Beyond Pesticides' April, 19, 2001 petition for cancellation in letter dated May 16, 2001 signed by Stephen L. Johnson, Acting Assistant Administrator for OPPTS. EPA's letter explained that the Agency was "currently reassessing CCA, pentachlorophenol and creosote as part of the Agency's ongoing effort to ensure that older pesticides meet current safety standards." Mr. Johnson assured Beyond Pesticides that "We are giving this priority attention." The letter also stated that EPA was evaluating the disposal of CCA-treated lumber in unlined landfills. No timetable was offered for completion of these assessments.

15. On December 21, 2001, Beyond Pesticides again petitioned EPA seeking immediate suspension and cancellation of penta and CCA based on EPA's previous findings in the 1978 RPAR as well as new evidence of risk from these pesticides and additional information about available alternatives to penta- and CCA-treated wood that had been submitted to EPA by Beyond Pesticides and others. Beyond Pesticides' petitions also asked for disposal of CCAtreated wood as hazardous waste, a prohibition on the recyclying, burning and mulching of used CCA-treated wood products and a Consumer Awareness Program for re-used products treated with penta.
53. On February 26, 2002 Beyond Pesticides again petitioned EPA to suspend and cancel the registration for creosote and also petitioned EPA to set national standards for safely disposing of all used creosote-treated wood, including a ban on the recycling of used wood products containing creosote and stricter enforcement for illegally dumping creosote railroad ties

16. On February 22, 2002, EPA published in the Federal Register an announcement that it intended to accept a voluntary phase-out of CCA that will result in a cancellation of the registration of CCA for certain non-industrial uses that will take effect in at the beginning of 2004. According to an EPA Q/A document, [a]fter December 31, 2003, wood treaters will no longer be able to use CCA to treat wood intended for use in decks, picnic tables, landscaping timbers, gazebos, residential fencing, patios, walkways/boardwalks, and play-structures. Wood treated prior to this date, however, can still be used in residential settings.

17. On March 25, 2002, Beyond Pesticides submitted comments on this proposal informing the Agency of its urgent concern that the almost two year delay before the effective date for cancellation of non-industrial uses of CCA, the limited scope of the phase-out which retains many dangerous uses, and the failure to address disposal of CCA-treated wood as hazardous waste do not adequately or timely protect human health and the environment, and asking the Agency to phase CCA out much faster. 56. On August 15, 2002, CWA submitted comments to EPA concerning the proposed CCA partial phase-out in support of those previously submitted by Beyond Pesticides. CWA expressed concern that the proposed phase-out would not adequately protect human health and the environment due to the unreasonable risks and documented harm posed by continued use of CCA. CWA also discussed existing alternatives to CCA-treated wood utility poles and other products, and called on EPA to shorten the phase-out period and cancel all uses of CCA. EPA provided no substantive response to CWA's comments and provided no details or timetables regarding the proposed phase-out.

18. EPA regulations in 40 C.F.R. 152.25(a) exempt certain treated articles and substances from regulation under FIFRA if specific conditions are met. The specific regulatory language is: Section 152.25: Exemptions for pesticides of a character not requiring FIFRA regulation (a) Treated articles or substances. An article or substance treated with, or containing, a pesticide to protect the treated article or substance itself (for example, paint treated with a pesticide to protect the paint coating, or wood products treated to protect the wood against insect or fungus infestation), if the pesticide is registered for such use. (Emphasis added.) Continued sale of CCA-treated wood for residential uses after the cancellation of CCA for those uses would violate FIFRA § 12(A)(1)(a) because sale of such wood would constitute sale of an unregistered pesticide which would no longer be exempt as a treated
article.

19. On March 5, 2002 EPA responded to Beyond Pesticides December 21, 2001 petitions for cancellation and suspension of CCA and penta in a letter signed by Assistant Administrator Stephen L. Johnson, stating, "this interim reply to your petition constitutes neither a denial nor an acceptance of your petition." The letter stated that the wood preservative pesticides were undergoing reregistration review and that the agency was "proceeding as rapidly as feasible to resolve your concerns." It offered no timetable for completion of review.

20. To date, Beyond Pesticides has not received any response to its February 26, 2002 petition for the cancellation and suspension of creosote.

21. On July 22, 2002, Beyond Pesticides submitted to EPA a formal petition under RCRA to repeal the exemption of arsenical-treated wood from hazardous waste regulation found at 40 C.F.R. § 261.4(b)(9). The petition pointed out that the regulation exempting treated wood was procedurally and substantively defective and requested a reply within 45 days.

22. On August 30, 2002, EPA responded to Beyond Pesticides' RCRA petition in a letter signed by Assistant Administrator Marianne Lamont Horinko. The letter stated that the Agency was giving the petition "careful consideration," but that "45 days is simply not enough to respond to the issues it raises. At this time, therefore, we are not yet in a position to act on your petition."

Motion to Dismiss

On Februrary 10, 2003, EPA submitted a partial motion to dismiss the case, arguing that the only valid claim is the unreasonable delay claim under the Adminstrative Procedure Act (APA). Beyond Pesticides then submitted an opposition brief.