Judge Denies Right to Sue EPA for Delay on Hazardous Wood Preservatives

(Beyond Pesticides, January 29, 2004) In a sweeping decision, Judge Richard Leon, a Bush appointment to the U.S. District Court (District of Columbia), dismissed on January 28, 2004 an environmental and labor coalition’s challenge of EPA’s failure to act to protect the public from hazardous wood preservatives. The groups suing EPA charge that the agency has unreasonably delayed in acting on some of the worst toxic chemicals on the market (pentachlorophenol (penta), creosote and chromated copper arsenate (CCA)), for which it has mountains of health and environmental effects data, after two decades of review and nearly seven years of unresponsiveness to petitions before the agency. The chemicals in question contain arsenic, dioxins, hexachlorobenzene, furans and other deadly compounds, cause cancer and neurological effects, and as a group account for the largest volume of pesticide use on an annual basis.

Rather than disagreeing with the plaintiffs’ complaint based on the merits, the court states that judicial review is precluded because the agency has not yet issued a final action, reversing settled law about citizen’s rights to challenge agencies’ undue delay. The court appears to have gone beyond EPA’s motion for a partial dismissal of the case, in which it agreed that the plaintiffs have the right to make an unreasonable delay claim, but should not be able to force a particular action, such as a cancellation or suspension of wood preservatives, which the plaintiffs also sought.

The case Beyond Pesticides et al v. EPA (U.S. District Court), in which Beyond Pesticides joined with Communications Workers of America (AFL-CIO), Center for Environmental Health (Oakland, CA) and Joseph and Rosanne Prager (Gainesville, Florida), was filed December 10, 2002. Central to the case is a request from the court for a declaratory judgment that EPA has unreasonably delayed in completing its regulatory actions on the three heavy duty wood preservatives which were initiated in 1978, and in responding to Beyond Pesticides' petitions to cancel and suspend their registrations. The case also charges that EPA arbitrarily failed to re-assess its 1984 finding that no economically viable alternatives exist to wood treated with these pesticides. The court earlier, on June 26, 2003, dismissed a request that it issue an emergency injunction to stop the use of pentachlorophenol, based on EPA’s own findings of excessively elevated risks. The suit also challenges EPA’s exemption of treated wood from hazardous waster classification.

In a statement, Jay Feldman, executive director of Beyond Pesticides, said, “If this ruling stands, there's no sense in pretending that pesticides are governed by anything other than a federal pesticide marketing and promotion law without full, timely requirements for regulatory assessment of health and environmental effects. The public’s health is in the hands of decision makers hamstrung by politics, held accountable to no standards for action.”

Go to Wood Preservatives Lawsuit page.