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From April 4, 2005

Federal Court Dismisses Toxic Wood Lawsuit
(Beyond Pesticides, April 4, 2005)
A federal lawsuit [Civil Case No. 02-2419(RJL)] brought by Beyond Pesticides and others in December 2002 to force EPA to act on the highly toxic wood preservatives, pentachlorophenol, creosote and chromated copper arsenate (CCA), was dismissed byJudge Richard Leon, U.S. District Court (Washington, DC) on March 21, 2005. Despite numerous requests by Beyond Pesticides and scientists, going back to 1997, which urged EPA to cancel the “heavy duty” wood preservatives, the judge found that “Beyond Pesticides did not make formal requests to cancel and suspend the wood preservative pesticides registrations until late 2001 and early 2002.” Thus, the decision reads, “…EPA did not became [sic} obligated to respond to Beyond Pesticides until the formal petitions were filed. . .” Jay Feldman, executive director of Beyond Pesticides, called the judge’s ruling “unsound, given that EPA has been unresponsive to scientific findings in a timely manner, and inherently unprotective of public health.”

Mr. Feldman said that the judge’s ruling “makes a mockery of public interest communication with a federal agency and embraces EPA’s argument that it can hide behind the use of the words “formal petition” to ignore for decades sound science crying out for regulatory action.” EPA has been reviewing these three wood preservatives since the late 1970’s and has found that they exceed acceptable risk factors established by the agency.

Mr. Feldman said, “The ruling dramatically points out the failure of the nation’s pesticide control law, the Federal Insecticide Fungicide, and Rodenticide Act (FIFRA), to offer a basic level of public health protection, while affirming chemical industry’s right to market exceedingly hazardous materials even when safer alternatives exist.” He continued, “Beyond Pesticides has tried to make FIFRA work, bringing science, health effects information, and data on alternatives to the agency, and EPA has repeatedly ignored data, missed its own deadlines to complete full reviews, and shown that the statute is a public policy failure.”

Beyond Pesticides was joined in the case by the Communication Workers of America (AFL-CIO), the Center for Environmental Health (Oakland, CA), and the Prager family from Gainesville, Florida. A detailed history of the case, including briefs, can be found on the Beyond Pesticides’ website.

In February, 2005, Beyond Pesticides, et al. filed a supplementary motion to inform the Court that EPA was not meeting its responsibility to act on these hazardous wood preservatives, and was not meeting the deadlines it had represented to the court. Beyond Pesticides stated in the motion:

“In its summary judgment papers [October 13, 2004], EPA represented to the Court that it had completed draft preliminary risk assessments (“PRAs”) on pentachlorophenol (“penta”) and two of its contaminants, dioxins and hexachlorobenzene (“HCB”). According to EPA, these drafts had been through “initial error correction review,” and were at that time being evaluated in “intra-Agency review.” These PRAs had been in “intra-Agency review” since March, 2003, when the registrants submitted their voluminous so-called “error correction” comments. The administrative record submitted in this case contains two sets of three draft PRAs; one set dated November, 2002 and the other dated February, 2003. Each set includes a separate assessment for penta alone, for HCB, and for dioxins. As detailed in Plaintiffs’ summary judgment brief, these assessments found cancer risks “exceed[ing] the Agency’s level of concern” for penta alone and risks many times the “tolerable” levels for effects such as birth defects, neurotoxicity and immunosuppression from penta’s contaminants.”

“Twenty months after it received error corrections comments on the draft PRAs, on November 30, 2004, EPA finally publicly released part of the penta PRA. The portion of the PRA which was released addresses penta only. EPA stated that the PRA chapters on the contaminants would be released at an unspecified “later date.” On January 31, 2005, Plaintiff Beyond Pesticides and several other groups filed comments on the penta PRA. Beyond Pesticides pointed out that the belated issuance of the PRA without review of the HCB and dioxin contaminants, which are classified as carcinogens and persistent organic pollutants, was “wholly inadequate for the formulation of a PCP [penta] RED [reregistration eligibility document].”

In a declaration signed by Jack Housenger, Deputy Director of the Antimicrobials Division, EPA responded to Beyond Pesticides’ motion with statements like “some of EPA’s estimated completion dates have changed, “EPA now expects to complete the penta RED in 2006,” and “additional time will be needed.” The judge did not respond to EPA’s failure to meet the schedule it brought before the court in the context of a review that has been ongoing for over 25 years.

In addition, EPA recalculated its risk assessment to find that children were no longer exposed to penta contaminated soil around utility poles, a reversal of a 1999 preliminary risk assessment finding accounting for an unacceptable cancer risk to children as high as 2.2 x 10-4 (2.2 cancer cases in 10,000). In its revision, the agency states, based solely on a study from the wood chemical industry‘s Pentachlorophenol Task Force, “Where utility poles are installed on home/school or other residential sites, child contact via the dermal or oral routes is not anticipated since play activities with or around these pole structures would not normally occur.” Beyond Pesticides pointed out that this 180 degree change in EPA’s assumpbtion does not match reality.

Beyond Pesticides is considering a possible appeal.

TAKE ACTION. This decision provides prime evidence that EPA does not feel compelled to act even in the case of some of the most hazardous pesticides and contaminants, even when alternative materials are available. Lobby your utilities (electric and telephone) to stop using treated wood utility poles and shift to alternatives, including burying lines and materials, such as recycled steel, composite and cement. In addition, use this decision to show that EPA risks assessments do not reflect real-world realities in terms of children’s and community exposure to pesticides. This decision is a tool to show local and state decision makers that EPA will sit on controversial decisions for years and bend its analysis under industry pressure. This decision provides yet additional evidence that the only way public health and the environment will be protected from toxic pesticides is through the precautionary principle, where policy makers agree that the public is best protected by avoiding the use of toxic chemicals and toxic chemical products whenever possible.