Statement of the Honorable Thomas H. Moore on the Petition to Ban Use of Chromated Copper Arsenate (CCA)-Treated Wood in Playground Equipment (Petition No. HP 01-3)

On May 22, 2001, the Environmental Working Group (EWG) and the Healthy Building Network (HBN) submitted a request that the Commission begin a rulemaking to enact a ban on use of chromated copper arsenate (CCA)-treated wood in playground equipment. On June 20, 2001, the request was docketed as petition HP 01-3 under the Federal Hazardous Substances Act (FHSA). Under its rules governing petition processing, in considering whether to grant, deny, or defer a petition the Commission is to address, among other things; 1) whether the product involved presents an unreasonable risk of injury, 2) whether a rule is reasonably necessary to eliminate or reduce the risk of injury, and 3) whether failure of the Commission to initiate the rulemaking proceeding requested would unreasonably expose the petitioner or other consumers to the risk of injury which the petitioner alleges is presented by the product.

CPSC staff performed a quantitative risk assessment for a person using CCA-treated wood playground equipment and estimated an increased lifetime risk of bladder or lung cancer of approximately 2 to 100 per million due to exposure to arsenic for a person who plays on CCA-treated wood playground structures during early childhood. While the staff risk assessment was based on exposure to arsenic from CCA-treated wood playsets, staff acknowledged that risks related to exposures from other wood sources and the soil surrounding these structures would be in addition to those from CCA-treated wood playsets. Therefore, the overall risk to children from playing on or near CCA-treated wood structures is likely to be higher than that estimated in the staff analysis.

Notwithstanding, it should be clearly understood that, over a lifetime, arsenic exposure from food, especially certain foods such as rice, other grains, and meats; drinking water; and other sources could actually be much larger than exposure from playground equipment during childhood. However, it should also be clearly understood that the estimated risk from exposure to arsenic from CCA-treated playground equipment is in addition to the risk of cancer from other sources of arsenic. We must understand that there is actually a piling on effect taking place with these risks.

In February of 2003, the United States Environmental Protection Agency (EPA) announced that the CCA pesticide registrants had requested that EPA cancel essentially all uses of CCA for treating wood for residential uses, including for treating wood to be used in playground equipment, effective December 31, 2003. In April of 2003, EPA finalized the cancellations and has stated that it expects that most wood treated with CCA for which the uses are cancelled will be out of the stream of commerce by mid-2004. CPSC staff has evaluated the impact of EPA's action and concludes that as a result of it, essentially all CCA-treated wood suitable for consumer uses, including for use in playground equipment, will be off the market by June 2004. In fact, most major manufacturers of wood playground equipment have informed CPSC staff that they have already stopped using CCA-treated wood to make their products. In essence, EPA's action, independent of anything the Commission now does, will effectively cause the disappearance of the CCA-treated wood products from the consumer market and eliminate the availability to consumers of new playground equipment constructed with CCA-treated wood. Therefore, I am comfortable in concluding that EPA's action will effectively address the narrow issue which is sought by the docketed petition.

However, EPA's cancellation of the use of CCA for treating wood for residential uses does not address the question of what do we recommend for existing playsets constructed with CCA-treated wood. This is the hidden question that arises out of staff's assessment that there is an increased risk of lung and bladder cancer above background incidence to children using CCA-treated wood playground equipment. Does this question lead the Commission down the road to a determination of whether such structures are a hazardous substance as defined by the FHSA or a determination of whether these structures contain a defect that create a substantial risk of injury to children? Clearly, we cannot ignore existing playsets constructed with CCA-treated wood once we accept staff's assessment that there is an increased cancer risk associated with these structures.

CPSC staff is currently working with EPA's Office of Pesticide Programs (OPP) and Office of Research and Development (ORD) to study possible mitigation measures (treating the wood with stains or sealants) to decrease the amount of dislodgeable arsenic on the surface of CCA-treated wood. Currently, there are only limited data on the effectiveness of coatings to reduce the potential for exposure to arsenic from existing CCA-treated wood structures. Preliminary findings provide a basis for some optimism about the effectiveness of some stains and sealants. CPSC's staff also acknowledges that hand washing is a very effective means to reduce children's risk to arsenic exposure from CCA-treated wood. These measures may be more cost-effective and workable than the wholesale removal of all CCA-treated playground equipment, an action that could have its own consequences in terms of safe disposal of such a large amount of CCA-impregnated wood at one time.

As I indicated, I am comfortable in concluding that EPA's action will effectively address the narrow issue of enacting a ban of the use of CCA-treated wood in playground equipment - the action sought by the docketed petition. Therefore, I accept staff's recommendation and vote to deny the petition. However, I must stress that I am not totally comfortable with respect to the Commission's lack of a recommendation on existing CCA-treated wood playsets. Consistent with this, I direct the staff to continue efforts to identify stains and sealants and any other means to reduce exposure to arsenic from existing CCA-treated wood structures and I also direct staff to devise strategies to better educate the public about the cancer risk associated with these structures and steps to take to minimize the risk. My decisions on this issue are in consideration of the relative priority of the risk of injury associated with playground equipment made with CCA-treated wood and Commission resources available for rulemaking and other activities with respect to that risk. Given a consideration of all circumstances, I believe that staff resources would be best applied working with EPA on mitigation efforts and a campaign to better inform the public on cancer risk associated with exposure to CCA-treated wood products.