Commissioner Gall's Statement on Denial of Petition to Ban Chromated Copper Arsenate (CCA)-Treated Wood in Playground Equipment
NEWS from CPSC
U.S. Consumer Product Safety Commission
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Washington, DC 20207
FOR IMMEDIATE RELEASE
November 4, 2003
CPSC Consumer Hotline: (800) 638-2772
CPSC Media Contact: Ken Giles, (301) 504-7052
Statement of the Honorable Mary Sheila Gall
On Denial of Petition to Ban Chromated Copper Arsenate (CCA)-Treated Wood in Playground Equipment
Today I voted to deny the petition requesting that the Commission begin a rulemaking to ban the use of chromated copper arsenate (CCA)-treated wood in playground equipment (Petition No. HP 01-3). Rulemaking by this Commission is not necessary, and would be redundant. The Environmental Protection Agency's (EPA's) cancellation of the registration of CCA as a pesticide will have the effect of prospectively banning the use of CCA-treated wood in all residential uses. I urge the staff to continue its work in evaluating the risk posed by CCA wood and in attempting to identify stains and sealants that will reduce exposure to arsenic from existing CCA-treated wood structures.
Rulemaking Unnecessary
The petition asks the Commission to ban the prospective use of CCA wood by rulemaking under the Federal Hazardous Substances Act (FHSA). The Commission regulates CCA-treated wood as a hazardous substance under the FHSA. EPA regulates CCA itself as a pesticide under the Federal Insecticide Fungicide and Rodenticide Act (FIFRA). In February 2002, EPA announced that the registrants of CCA pesticides under FIFRA had requested that the agency cancel essentially all uses of CCA for treating wood for residential uses, effective December 31, 2003. This would include use for treating wood to be used in playground equipment. On March 17, 2003, EPA issued a final cancellation order that makes it illegal to use CCA to treat wood intended for most residential uses after December 30, 2003. Declaring such wood to be a banned hazardous substance under the FHSA would be redundant.
CPSC staff evaluated the impact of EPA's action through retail surveillance and has concluded that as a result of the cancellation of the registration of CCA as a pesticide, essentially all CCA-treated wood suitable for consumer uses will be off the market by June 2004. This includes the use of CCA-treated wood in playground equipment. CPSC staff also found that most major manufacturers of playground sets have already ceased using CCA-treated wood. EPA's CCA pesticide cancellation has made rulemaking unnecessary to eliminate or reduce the risk of injury. Indeed, rulemaking at this stage is not only unnecessary but also redundant, since CCA-treated wood would be off the market before the Commission could promulgate a final rule on this material.
Remediation
Petitioners not only urged the Commission to promulgate a rule banning CCA-treated wood, but also to recall existing playground equipment made from CCA-treated wood. To initiate a recall, the Commission would first have to determine that CCA-treated wood playground equipment structures are "hazardous substances," as defined by FHSA. Specifically, the products would have to be found toxic and to have the ability to cause substantial personal injury or substantial illness during, or as a proximate result of, any customary or reasonably foreseeable ingestion by children. A toxic, hazardous substance present in an article intended for use by children would cause the toy to be banned automatically under section 2(q) of the FHSA if the child could gain access to that substance. After a determination that the structures are banned hazardous substances, the Commission would need to show, after a hearing, that a recall would be in the public interest.
The Commission staff has performed what is the most comprehensive study to date regarding the toxicity of CCA-treated wood. In performing the extensive study, the CPSC staff had to make assumptions regarding the bioavailability of dislodgeable arsenic, the unloading and loading of residue from a child's hands, and the arsenic cancer slope factor. The results of the study suggest that a young child who plays on CCA-treated wood playground structures in early childhood has an increased risk of 2 to 100 per million of developing lung or bladder cancer during his or her lifetime. The risk is an increased risk above the risk of cancer due to other factors during one's lifetime.
While this risk is consistent with a finding that CCA-treated wood is toxic within the meaning of the FHSA, the Commission could not, as petitioners request, immediately recall playground equipment made of CCA-treated wood. Before the Commission could ban the use of CCA-treated wood in playground equipment, the assumptions made in the Commission's staff study would need to be verified.
An immediate recall of CCA-treated wood playground structures is not supported by the existing record. However, the staff's need to continue its mitigation studies to determine the effect of sealants in preventing exposure to residues of CCA on treated wood.
Conclusion
An increased risk of cancer presented by equipment our children use is clearly a serious and emotional issue. Nonetheless, denial of the petition is the proper course of action since a rule is redundant and not necessary to remove CCA-treated wood from the market place for residential purposes. While a recall of CCA-treated playground structures is not supported by the existing record, I urge the staff to focus on mitigation measures for CCA-treated wood structures.