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Docket No.

December 21, 2001

In re: Petition For Suspension and
Cancellation of Pentachlorophenol


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 petition the Administrator of the U.S. Environmental Protection Agency (EPA) to issue a Notice of Intent to Cancel the registration of pentachlorophenol (penta) pursuant to Section 6 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). We further request that the Administrator suspend the registration of penta for all uses under FIFRA Section 6 (c) (1), on the ground that penta causes unreasonable adverse effects on public health and the environment, which cannot be prevented in the time necessary to conduct cancellation proceedings.

Nearly all non-wood uses of penta were banned in 1984 because of fetotoxicity and oncogenicity risks and the availability of viable substitutes. Wood preservative uses of penta were considered separately. Now, less toxic, economical and effective alternatives to penta-treated wood products are also readily available. Accordingly, the suspension and subsequent cancellation of penta will not create serious economic or social hardships. Ultimately, the risks presented by penta's registration outweigh any potential benefits, both economic and social, associated with penta's use. EPA should finish the job it started in 1984 by banning the use of penta as a wood preservative.

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 penta'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. PENTA AND ITS CONTAMINANTS ARE PERSISTENT ORGANIC POLLUTANTS (POPs) AND ARE ENDOCRINE DISRUPTORS

Penta is a chlorinated hydrocarbon. Technical grade penta is contaminated with several carcinogens, including tri- and tetrachlorophenol, hexachlorobenzene (HCB), dioxins, and polychlorinated dibenzofurans (furans). The National Toxicology Program (NTP) of the National Institutes of Health, listed dioxin as a "known human carcinogen" in the Federal Government's Ninth Report on Carcinogens. NTP first listed furan in the Eighth Report on Carcinogens, as furan "is reasonably anticipated to be a human carcinogen based on evidence of malignant tumor formation at multiple tissue sites in multiple species of experimental animals." Hexachlorobenzene is reasonably anticipated to be a human carcinogen based on sufficient evidence of carcinogenicity in experimental animals. When administered in the diet, HCB induced liver tumors in female rats and in mice of both sexes and hepatomas, liver hemangioendotheliomas, and thyroid adenomas in hamsters of both sexes.

Penta, HCB, dioxins and furans rank with the most toxic chemicals ever created and are classified as persistent organic pollutants (POPs) by the United Nations Environment Programme (UNEP). This year, the United States signed a POPs treaty that restricts the use of HCB, dioxins and furans, as well as nine additional toxic chemicals. UNEP lists penta with a set of POPs that are slated for future restrictions. When remarking about the significance of the POPs treaty, President Bush stated:

First, concerns over the hazards of PCBs, DDT, [HCB, dioxins, furans] and the other toxic chemicals covered by the agreement are based on solid scientific information. These pollutants are linked to developmental defects, cancer, and other grave problems in humans and animals. The risks are great, and the need for action is clear. We must work to eliminate, or at least to severely restrict the release of these toxins without delay.

EPA Administrator Whitman announced the agency's support of the POPs treaty, pointing out that the chemicals covered under the treaty are lethal. Administrator Whitman stated:

In spite of the steps that we have taken, the American public still finds itself at risk. These chemicals not only persist in the environment for years and years and even decades, they also travel far beyond their initial point of release and they gain in their toxicity as they accumulate.

EPA has determined that penta-treated wood is one of the largest potential reservoirs of dioxins in the environment. EPA estimates that 25,000 grams toxic equivalency (TEQ) of dioxin may be found in penta used for wood treatment. TEQ is commonly used to measure dioxin in the environment. This amount is over eight times greater than EPA's central estimate of total releases of dioxins to air, land, and water in 1995. Although the fate of dioxins on treated wood and in other products is not fully understood, penta-treated wood was the largest source of dioxins quantified in a nationwide study of 1995 dioxin emissions.

A. Penta and Its Contaminants are Endocrine Disruptors

Penta interferes with hormone function. Hormones are chemicals made by the body that help control the body's functions. They are present in minute quantities. Certain other chemicals may be mistaken for hormones by the body, and disrupt the systems controlled by the hormones. In particular, some chemicals are mistaken for the female hormone estrogen. These estrogen mimics interfere with the reproductive system, causing infertility, malformed sexual organs, and cancer of sensitive organs.

Although many chemicals, including penta and its contaminants-polychlorinated dibenzo-p-dioxins, dibenzofurans, and hexachlorobenzene-are considered endocrine disruptors, evidence is rarely as strong for most chemicals as it is for penta. Exposure to penta may result in adverse reproductive effects that are associated with changes in the endocrine gland function and immunological dysfunction. A number of women with histories of spontaneous abortion, unexplained infertility and menstrual disorders had elevated levels of penta and/or lindane in their blood.

II. EPA'S PRELIMINARY SCIENCE CHAPTER ON PENTA CITES EXTREME RISKS FROM EXPOSURE

EPA published the Draft Preliminary Science Chapter for the Reregistration Eligibility Decision Document (RED) for Pentachlorophenol (science chapter) in 1999. The memorandum attached to the science chapter states, "The document addresses penta as the active ingredient, and does not address the microcontaminants, dioxins and furans." In the science chapter, EPA documents huge cancer risks from penta exposure. This is particularly significant even without factoring in dioxin and furan in the risk assessment.

Children normally would come into contact with penta in one of two ways: contact with penta-contaminated soil and contact with penta-treated wood products. Both of these "residential post-application exposure scenarios" are the direct result of the widespread use of penta treated utility poles across the country. And as EPA has declared, both means of contact are hazardous and potentially deadly. EPA has determined that contact with soil contaminated with penta poses an unacceptable cancer risk to children as high as 2.2x10-4. Likewise, outdoor residential contact with industry pressure-treated wood products (e.g. utility poles, fencing, porches, shingles, steps and decks) leads to cancer in children with an unacceptable risk of 6.4x10-6. EPA has determined that a chemical that causes no more than one additional case of cancer in one million (1x10-6) poses an acceptable risk. EPA also finds, "Residues of penta in drinking water (when considered along with exposure from food and residential uses) pose an unacceptable risk to children."

EPA's science chapter reports that people with occupational exposure to penta are at excessive risk. EPA examined fourteen occupational exposure scenarios and calculated margins of exposure (MOEs) for non-cancer health effects. An MOE of greater than 100 for penta is considered to indicate an acceptable risk for short-term and intermediate-term exposure; an MOE of one equals a 100 percent chance of a health effect. With maximum mitigation measures in place, three of the occupational scenarios have MOEs less than 20. All of the exposure scenarios had unacceptable long-term non-cancer risks.

The cancer risks that EPA calculated for the occupational exposures to penta are most telling: 9 of the 10 jobs had unacceptable cancer risks. EPA has determined that with occupational exposures a risk as high as one additional case of cancer in 100,000 is acceptable. The following table lists the occupational exposures with their corresponding cancer risk (all of the risks are calculated with maximum mitigation measures factored in):

Exposure Scenarios Cancer Risk
Primary Handlers - Mixers/Loaders
Mixing/loading crystalline technical grade penta to make ready-to-use product 7.6 x 10-6
Mixing/loading crystalline technical grade penta to make concentrated product 1.3 x 10-3
Mixing/loading liquid formulation at joinery mills 1.9 x 10-3
Mixing/loading liquid formulation at pressure treatment plants 2.0 x 10-3
Secondary Handlers - Applicators
Applying liquid formulation at joinery mills - dipping 1.5 x 10-3
Applying liquid formulation at joinery mills - airless spraying 1.8 x 10-1
Applying liquid formulation at joinery mills - low pressure handwand 4.4 x 10-1
Applying liquid formulation at joinery mills - brushing 8.4 x 10-2
Applying liquid formulation at pressure treatment plants - helpers/switchmen 1.5 x 10-4 (inhalation only)
Applying grease formulation for groundline remediation of utility poles - brushing 3.4 x 10-0
Source: U.S. Environmental Protection Agency, 1999b. Science Chapter for the Reregistration Eligibility Decision Document for Penta (PC Code: 063001, Reregistration Case Number 2505). Washington, DC.

Note that applicators of penta for groundline remediation of utility poles face certain cancer (3.4 workers out of 1, a mathematical impossibility). EPA confirmed that this was not a typographical error.

The most common effects of airborne penta include local irritation of the nose, throat and eyes. Dermal exposure is also common and may lead to irritation, contact dermatitis, or, more rarely, allergic disorders such as diffuse urticaria that causes intense itching. Individual cases of exfoliative dermatitis of the hands and diffuse urticaria and angioedema of the hands have been reported in exposed workers.

Severe poisoning and death have occurred as a result of intensive penta exposure. Acute poisoning occurs with systemic absorption that can occur by any route of sufficient dosage. Most occupational poisonings occur through dermal contact. Hyperthermia, muscle spasm, tremor, labored breathing, and chest tightness indicate serious poisoning. Exposure may also cause abdominal pain, vomiting, restlessness, and mental confusion. Tachycardia and increased respiratory rate are usually apparent. Other commonly reported signs and symptoms of systemic poisoning include profuse sweating, weakness, dizziness, anorexia, and intense thirst. Several infant deaths occurred in a nursery where a diaper rinse containing penta had been used.

III. STUDIES PROVE THAT PENTA IS UBIQUITOUS IN THE ENVIRONMENT AND THAT PENTA IS LEACHING OUT OF TREATED WOOD INTO SOIL AND WATER

Two studies demonstrate the ubiquitous nature of penta in the environment. Urine samples from 197 Arkansas children were analyzed for a variety of chlorinated phenols, including penta, in 1989. Half of the children lived in a community with a chemical manufacturing plant, the control group had no such chemical plant in their community. Penta was found in 100 percent of the children tested. Similarly, the National Center for Health Statistics with EPA conducted the Second Health and Nutrition Examination Survey (NHANES II), publishing the results in the early 1980s. NHANES II sampled approximately 28,000 people representing a cross-section of the nation. Penta was found in the urine of 79 percent of those sampled.

Environment Canada conducted a study to determine the occurrence of chlorophenols, including penta, in utility and railway rights-of-way ditches in British Columbia. Although penta was not detected in control samples taken from pristine watersheds and parklands, penta was found at high levels in utility and railway ditches. Concentrations of penta averaged 1060 mg/kg at the base of poles. The level of penta in the soil and water was inversely related to the distance from the penta treated wood in the ditches.

As a follow up, Environment Canada conducted a study to determine whether dioxins and furans were leaching out of penta-treated utility poles and railroad ties. Samples of treated wood were collected to confirm the source of dioxins and furans. Utility poles contained about 76.7 mg/kg dioxins and 18.7 mg/kg furans. In railway ties, 13.5 mg/kg dioxins and 2.29 mg/kg furans were found. As in the first study, no dioxins or furans were found in the control samples. Dioxins and furans were found in utility and railway ditches at concentrations as high as 2.58 mg/kg and 1.28 mg/kg respectively. The researchers concluded that:

This study shows that the principle source of CD [dioxins] and CF [furans] in railway and utility ROW [right-of-way] ditch water was associated with the CP [chlorophenols] used for the preservation of wooden ties and poles. Dioxins and furans from these ROW wooden structures not only contaminated ditch water but were also transported away from the point source of contamination, as is illustrated by the high levels of CD and CF found in water 4 m downstream of ditches adjacent to utility poles.

Bell Canada, in 1988, conducted a study to determine whether soil and groundwater in its storage yards were contaminated by penta and/or another wood preservative, CCA. In Quebec, where the company uses mostly penta-treated poles, the clean-up criteria, or levels determined acceptable, were exceeded by factors as high as 100 at 10 out of 14 sites. Another Canadian study measured the amount of penta leaching out of a pile of 15 Douglas Fir poles under natural rainfall conditions in British Columbia. The level of penta released from these poles was relatively constant throughout the study period of four months, ranging from 1.57-2.85 mg/L rainfall.

Penta and its contaminants leach from utility poles, both from the poles stored in pole yards and those in service. A study conducted by the Electric Power Research Institute (EPRI) measured soil adjacent to utility poles in service. EPRI found levels of penta in the soil around the poles as high as 100 mg/kg or 100 parts per million (ppm). EPRI also evaluated the leaching of penta into lower depths of soil around 168 in-service wood utility poles and found that penta residues were relatively constant to 48 inches; maximum levels were above 500 mg/kg. In addition, dioxins leach out of penta-treated wood utility poles. Significant levels of dioxin were measured in soil samples taken from around penta-treated poles, with detectable levels of dioxin found 20 centimeters from the poles. Many of these poles are in cities, parks, playgrounds and backyards.

A. Chemicals from Treated Poles Seep into Surface and Groundwater

The toxic chemicals in treated poles can be carried into both surface and groundwater in concentrations that can contaminate drinking water supplies and impact the life of aquatic organisms. For example, in a study conducted for Environment Canada Regulatory Economic Assessment Branch, scientists found three poles treated with penta that were adjacent to drinking water wells caused water contamination.


B. Disposal of Treated Poles Creates Additional Leaching and Exposure Risks

In excess of three million utility poles are removed from service each year. The question of disposal and reuse of penta-treated poles, which has essentially escaped the regulatory net, raises serious questions about risk factors that extend beyond use and storage. Reused wood is not considered a waste product and therefore not subject to the Resource Conservation and Recovery Act. Treated wood that is no longer usable is waste, but has not been listed as hazardous waste. There is currently no set procedure for properly disposing of penta-treated wood.

In a survey conducted by Beyond Pesticides/NCAMP in 1999, utility companies indicated that it is standard practice for poles taken out of service to be given away to the public. These poles are then handled by uninformed people, which results in exposure to hazards not calculated by EPA. The poles or remilled lumber find their way into the public domain as construction material, fencing, garden ties and other uses. At least one company recycles poles for reuse by shaving them down, recovering wood preservative from the shavings, retreating them as smaller poles, and selling the processed shavings for a filler for asphalt shingles.

The Beyond Pesticides/NCAMP survey found one utility that voluntarily provides a Material Safety Data Sheet (MSDS) along with the used poles that it gives to consumers. The MSDS states that penta "has been found to have toxic effects in laboratory animals. . . Exposure to treated wood should be kept to a minimum. . .Exposure to penta during pregnancy should be avoided. . .Penta contains trace amounts of Hexa, Hepta, and Octochlorodibenzo-p-dioxins, Hexa, Hepta, and Octachlorodibenzofurans, and Hexachlorobenzene. The State of California has listed Hexachlorodibenzo-p-dioxin and Hexachlorobenzene as chemicals known to the State to cause cancer."

Treated wood poles are also burned for their energy value in co-generation facilities permitted for burning treated wood, in hazardous waste incinerators, and in the fireplaces and wood stoves of scavengers. Burning of penta-treated wood releases dioxins into the air.

So far, disposal as hazardous waste is an option that has been avoided through recycling or giving away utility poles to the public. 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."

IV. PRIOR AGENCY ACTION REGARDING PENTA

Prior to 1984, penta was used in a significant number of pesticide products to control fungi, mosses, weeds, insects and bacteria as well as in wood preservatives. The EPA began investigating penta in 1978 because of studies indicating its fetotoxicity and oncogenicity. In 1984, as a result of its Rebuttable Presumption Against Registration (Special Review), the agency banned all uses of nonwood-preservative pesticide products containing penta and its sodium and potassium salts, except use as an anti-fungal agent in oil well flood waters and pulp and paper mill solutions.

There were two primary reasons why the agency determined that continued non-wood uses of penta was "unjustified." First, EPA determined that the nonwood uses of penta posed a risk of fetotoxicity and, due to the presence of the contaminants polychlorinated dibenzo-p-dioxins (dioxins) and hexachlorobenzene (HCB), they also posed a risk of oncogenicity to applicators. Second, EPA's analysis of the benefits associated with the uses of penta revealed that for the majority of uses, viable, effective alternatives were available and in use. Therefore, EPA determined that the fetotoxic and oncogenic risks associated with most non-wood used of penta outweighed the benefits.

In 1984, EPA did not ban the use of penta as a wood preservative because the economic benefits resulting from the use of the wood preservative chemicals exceeded the risks. According to EPA, several modifications to penta reduced environmental and health risks. These required modifications included: reducing the levels of several of penta's contaminants HxCDD and 2,3,7,8-tetrachlorodibenzo-p-dioxin; labels with information on protective clothing and equipment in the application of penta; participation of commercial wood treaters in a Consumer Awareness Program (CAP) for end users of the treated wood; and requirements for product formulations, registrant warnings, and applicator precautions. "[T]he agency has concluded it is technologically feasible to substantially reduce the stated impurities in pentachlorophenol products...and that it is technologically feasible to reduce the dioxin content in pentachlorophenol products." However, there were several flaws of this prior review discussed below.

A. Flaws of the Prior Review

When conducting the risk-benefit analyses in the 1980's, EPA failed to consider: 1) risks associated with penta itself; 2) the leaching of penta into soil and groundwater; 3) risks to children associated with playing in penta-contaminated soil; and 4) risks of unsafe reuse, recycling and disposal. Numerous exposure scenarios, both occupational and non-occupational, result from recycling CCA-treated wood. Each of these issues is discussed in more detail above. Given that there are now viable economical alternatives for all wood uses of penta, these risks outweigh the benefits of all wood uses of penta.


B. Failure Of EPA's Consumer Awareness Program

One outcome of EPA's 1984 Special Review of the inorganic arsenicals was a proposed mandatory 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 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 or used penta-treated wood, but the CAP is not serving that function. This failure adds to already excessive risks, and penta'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. 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, 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.

V. INCREASE IN AVAILABILITY OF ALTERNATIVES HAS SHIFTED RISK- AND COST-BENEFIT ANALYSIS AWAY FROM CONTINUED USE OF PENTA

EPA's cost-benefit analysis of the heavy-duty wood preservatives as part of the Special Review process provided the agency with the principle argument for continued use of penta, creosote, and the inorganic arsenicals. In 1981, the agency concluded that:

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 which are efficacious for a majority of the use sites are the inorganic arsenical compounds, which pose the highest level of estimated risk. (emphasis added).

The health and environmental risks discussed above must be evaluated against the availability of alternative materials and approaches that may be safer. Several effective and economical alternatives to penta that were not readily available in 1981 now exist. 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.

In today's market there are many manufacturers of alternative technologies to take the place of penta-treated wood utility poles. The alternative technologies for penta-treated wood include recycled plastics, recycled steel, concrete, and a number of new wood preserving chemicals that do not contain the toxic chemicals found in the three heavy-duty wood preservatives including: Alkaline Copper Quaternary (ACQ), Copper Azole, Copper-8-quinolinate, and borate-based wood preservatives. Manufacturers of these alternative technologies would experience an increased share of the market and eventually replace those structures and applications where penta-treated wood is currently used.

In the case of wood, the utility industry expects 40 to 50 total years of service (although it has been found that a bad batch of wood can yield less than 35 years of service). The steel, concrete, and fiberglass alternatives yield a lifespan of 80 to 100 years. There are differences in maintenance costs associated with different materials. For example, 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 penta-treated 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.

A. Recycled Steel is a Viable Utility Pole Alternative

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. The Public Utility District of Douglass County in East Wenatchee, Washington uses cedar poles that are naturally pest and decay resistant, and only treats the portion of the pole with penta that is submerged underground. It pays $360 for wood poles and $383 for steel.

B. Concrete and Composite Materials, and Alternative Wood-Preservative Methods

Reinforced concrete is also identified as an alternative material to treated wood poles. The material's longevity ranges from 80 to 100 years. StressCrete, a company based in Burlington, Ontario, Canada (with a plant in Tuscaloosa, Alabama) is a major producer of cement utility poles. It charges $350 for a 40 foot, class 4 pole (exclusive of freight). There are a number of other materials that are available for poles, such as fiberglass reinforced composite. Additionally, there are the alternative wood preservative methods discussed above and the option of 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." The evidence shows that continued registration of penta results in serious adverse effects on public health-specifically, increased risk of cancer among those exposed to penta-treated wood products. Furthermore, recently developed alternatives to penta will alleviate any adverse economic consequences of penta'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 penta, 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, penta'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 penta-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 penta during the cancellation process far outweigh the benefits associated with its continued registration. In addition, 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 penta by issuing a Notice of Intent to Cancel registration of penta. As the foregoing evidence demonstrates, the legal standards for suspension and subsequent cancellation are met because penta's continued registration causes unreasonable adverse effects on public health and the environment. Recent and reliable scientific evidence demonstrates that penta presents an imminent hazard to public health. The toxic effects of penta have been well documented and are virtually uncontested. Numerous studies, performed by both government and private entities, reveal a strong positive correlation between public health risks and penta exposure through contact with wood preservatives.

In addition, any benefits created by penta wood preservatives are drastically undercut by the impossibility of introducing penta into the environment with adequate safety measures. Since 1986, the wood preservative industry has failed to comply with EPA's voluntary consumer awareness program designed to alert the public to the dangers of penta-treated wood. As a result, consumers remain unaware of the hazards associated with exposure to penta-treated wood, which include respiratory, dermatologic, and neurological symptoms. Moreover, the wood preservative industry has not developed a means to protect the public from penta leached from penta-treated wood. As the expected life of a penta-treated utility pole is between 35 and 50 years, public health and the environment remains at risk during that time period and until it is safely disposed.

The outcome of a penta risk-benefit analysis, which is a necessary component of cancellation and suspension proceedings under FIFRA, is clear because the carcinogenic effects of penta are dramatic, especially with regard to people with occupational exposure to penta. Furthermore, given the availability of viable and economical alternatives to penta, the economic and social impacts of cancellation do not outweigh the public health risks of continued registration. Therefore, continued registration of penta 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 penta, when used as a component of wood preservatives, causes unreasonable adverse effects on public health and the environment;

(2) Determine that penta presents an imminent hazard to public health and the environment because the unreasonable adverse effects resulting from penta'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 penta;

(4) Immediately suspend the registrations of all pesticide products containing penta;

(5) Move as expeditiously as possible to complete the cancellation of all pesticide products containing penta.

(6) Mandate a CAP for re-used wood products treated with penta.

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