Chairman Stratton's Statement on Denial of Petition to Ban Chromated Copper Arsenate (CCA)-Treated Wood in Playground Equipment
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NEWS from CPSC

U.S. Consumer Product Safety Commission

Office of Information and Public Affairs 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 Chairman Hal Stratton

Regarding No. HP-01-03, a Petition for a Ban on Use of CCA Treated Wood in Playground Equipment

On May 21, 2001, the Environmental Working Group (EWG) and the Healthy Buildings Network (HBN) petitioned the Consumer Product Safety Commission (CPSC) to ban the use of Chromated Copper Arsenate (CCA)-treated wood in playground equipment and for other uses. The Office of the General Counsel docketed a portion of the petition that called for a ban on the use of CCA-treated wood in playground equipment under the Federal Hazardous Substances Act (FHSA), 15 U.S.C. §§ 1261-78. Parts of the petition that were related to other uses were not docketed.

CCA is a chemical preservative that protects wood from rotting due to insects and microbial agents. CCA contains arsenic, chromium and copper. It has been used to pressure treat lumber for decks, playgrounds, playsets, and other outdoor uses since the 1930s. The majority of pressure treated wood used since the 1970s in residential settings was treated with CCA.

Under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), which is administered by the Environmental Protection Agency (EPA), most pesticides must be registered by EPA before they can be used in the United States.

CPSC generally does not have jurisdiction over pesticides. Section 2(f)(2) of the FHSA excludes pesticides from the definition of "hazardous substances" as used in the Act. However, the exclusionary clause in the FHSA definitions also states that the exclusion does not apply to, "any article which is not in itself a pesticide within the meaning of [FIFRA], but which is a hazardous substance . . . . by reason of bearing or containing such a pesticide." The CCA-treated wood used in construction of playground equipment is, therefore, not exempt from regulation under the FHSA. Thus, any hazardous substance determination would extend to the playground equipment itself, but not to the CCA which is used to treat it.

Risk

The CPSC briefing package and analysis of public comments are available for review on the CPSC web site at www.cpsc.gov. The Commission's staff research did conclude that some children may face an increased lifetime risk of developing lung and bladder cancer over their lifetime from playing on playground equipment made from CCA treated wood. The increased risk is primarily due to exposure to arsenic residue on children's hands, followed by hand-to-mouth contact. This exposure can occur during and after playing on pressure-treaded wood playground equipment. The Commission's staff believes that there is an increased lifetime risk of certain types of cancer, in the range of 2 to 100 per million, which may occur as a result of exposure to CCA wood.

The Commission'staff maintains that an individual child's risk from arsenic in CCA-treated playground equipment will vary depending on many factors. Those include the amount of arsenic released from the CCA-treated wood, the amount of arsenic picked up on the hands, the number of days and years the child plays on the wood, and the amount of arsenic transferred to the mouth by hand-to-mouth activity. The staff report says transfer of the arsenic from the hand to the mouth can occur during and after playing on CCA-treated playground equipment. The Commission's staff considered these types of exposures in calculating the increased lifetime risk of developing lung or bladder cancer.

There are many risk factors that contribute to a person's risk for developing cancer over their lifetime such as environment, genetics, diet, and behaviors such as smoking. Additionally, arsenic occurs naturally in the air, soil, water and in some foods. While exposure to arsenic from background sources could be much higher than the exposure from playgrounds for some children, according to the Commission's staff, exposure to arsenic from CCA-treated playgrounds could be a significant source of arsenic for children on those days that include a playground visit.

I recognize that there is controversy over the carcinogenicity of arsenic at low levels of exposure. Our staff recognizes that "significant variability and uncertainty exist in the available data, statistical modeling, and extrapolation and that several reasonable approaches could be taken that would result in estimates of cancer risks that differ by an order of magnitude or more."

Voluntary Agreement to Stop Production of CCA-Treated Wood

Manufacturers of CCA reached a voluntary agreement with EPA to end the manufacture of CCA to be used for treating wood for most consumer applications by December 31, 2003. After that date, registration of CCA will be withdrawn for most uses, and the product will no longer be manufactured for residential uses, or for playground equipment . The Commission's staff has stated that remaining inventories of the product will be out of stores by July of 2004. In addition, the Commission's staff has determined that most major commercial and residential manufacturers of wood playground equipment have already stopped using CCA-treated wood. The fact that EPA cancelled CCA's registration, and that the product will no longer be produced for most residential purposes, including playground equipment, is the primary reason that the staff recommends that the Commission deny this petition.

The Commission's staff correctly believes that the combination of the withdrawal of registration and the existing trend away from using CCA-treated wood in playground equipment render the petition moot. Even if the Commission were to determine that the product is a hazardous substance as defined in the FHSA, the Commission would find itself in the position of banning a product that is no longer being manufactured.

If the petition is granted, the FHSA requires the Commission to next draft and publish a notice of proposed rulemaking, 15 U.S.C. § 1262(3)(a), and provide a comment period of 75 days, as required by law. The staff would analyze the comments, and draft a final rule for consideration by the Commission. Assuming that the Commission voted to promulgate the final rule, challenges could be raised to it that would require a hearing before an Administrative Law Judge before the rule became final. Id. The General Counsel's office has stated that could take one or two years to move a regulation from the NPR stage to a final regulation. I believe this to be a very optimistic estimate. An issue such as this would likely take additional time because of the number of comments and the amount of original research needed to support the findings required by law.

By the time the regulatory process completed its course--a process that is mandated by law--the product would no longer exist in the marketplace. Indeed, even if the Commission were able to pass a regulation, it would not go into effect until after the registration has been withdrawn, and close to the time when CCA-treated wood is no longer available in stores.

For these reasons, I am voting to deny petition HP-01-03.

Even though the Commission has denied the current petition, it will continue to monitor the issue where it has jurisdiction. It will also continue its research efforts related to the issue, and its cooperative work with EPA. For example, CPSC and the EPA are currently collaborating on a mitigation study to determine the effectiveness of various sealants and stains to decrease or limit the amount of dislodgeable arsenic on the surface of CCA-treated wood. The mitigation study involves several phases including the identification of surface coatings that form an initial barrier to arsenic migration and then testing the duration of effectiveness of this barrier through natural and accelerated weathering conditions. The results of this study, which began in the summer of 2003, will be shared with the public upon completion. However, I remain hopeful that some preliminary conclusions can be shared with the public prior to the completion of the two-year long mitigation study.

Although the lifetime health risk from exposure to CCA-treated wood may be comparatively small, it is prudent to reiterate the Commission's staff's warnings about CCA-treated wood playsets. To minimize the risk of exposure to arsenic from CCA-treated playground equipment, the Commission's staff recommends that parents and caregivers thoroughly wash children's hands with soap and water immediately after playing on CCA pressure-treated wood playground equipment. In addition, the Commission's staff recommends that children not eat while on CCA-treated wood playground equipment.