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Written Comments to the Consumer Product Safety Commission Regarding the use of Chromated Copper Arsenate in Playground Equipmen

Regulatory Comments and Testimony

Title

Written Comments to the Consumer Product Safety Commission Regarding the use of Chromated Copper Arsenate in Playground Equipmen

 

Written Comments of Angela Logomasini

 

Director of Risk and Environmental Policy, Competitive Enterprise Institute

To the Consumer Product Safety Commission

Regarding the use of Chromated Copper Arsenate in Playground Equipment

March 28, 2003

 

The following comments serve two purposes.  First they serve as written comments on the petition to ban playground equipment made with wood treated with preservative chromated copper arsenate (CCA).  Second, they petition the Consumer Product Safety Commission (CPSC) to comply with federal data quality mandates.

 

On March 17, 2003, the CPSC heard public comments on this issue. The commission questioned many of the presenters on why the CPSC needed to act given that the EPA is banning CCA.  They also inquired as to why the current registrants would consider canceling a product that they maintained was safe.  Yet neither of these issues is relevant to the responsibilities of this commission and its decision, as detailed below.  

 

Responsibilities to Taxpayers, Consumers, and Small Businesses

 

The commission’s responsibility is to serve the taxpayers who support our federal institutions.  It involves providing accurate and scientifically valid information and not impeding consumer choice unless it is absolutely necessary to prevent a clear and substantial risk.  That means the commission’s bias should be in favor of consumer freedom.  It also demands that the commission avoid actions that can mislead the public; create unwarranted fears; and prompt activities that could impose needless burdens on taxpayers, consumers, and small businesses.  In this regard, two actions by this commission are relevant. 

 

First is the commission’s action in regard to its study on the topic.  The CPSC study appears to significantly overestimate risks and unless corrected, it will create needless burdens for the public, even without any further CPSC actions.  In addition, the commission has not met its responsibilities to provide a transparent process and peer review as mandated by the data quality law. 

 

Second, the commission is responsible for the impacts of it decision, whether it involves deferring, accepting, or denying the petition.  Acceptance and even deferral of this decision will confuse the public about real risks.  This commission was asked to rule on the safety of CCA.  Despite the theoretical risks presented by the staff-produced study, there isn’t any concrete evidence that CCA-treated wood has ever caused significant problems when used according to label directions.  In addition, the theoretical risks suggested by the staff are highly overstated, and do not justify proceeding with a rulemaking that denies consumer choice and misleads the public.  The commission needs to send a clear message to the public by denying this petition.

 

In contrast to CPSC, EPA is not responding to claims about CCA safety; it is responding to a cancellation request.  Some have suggested that the registrants desire to cancel their registration is a market response, as if CCA was not competitive and better options were already winning in the marketplace.  This claim should not be used to justify deferral to EPA or to ignore serious problems with CPSC science because the claim is false.  If this claim were true, there would be no need to deny other possible registrations of CCA. 

 

In a free society, when superior products are introduced, others may become obsolete via consumer choice; there is no need for government bans.  Yet when Home Depot attempted to market the alternative products, they could not sell them and had to restock with CCA-treated wood. The alternatives have failed in the marketplace; they are unable to capture a significant portion as long as CCA remains an option.  Clearly, a vigorous market for CCA remains; it is hardly obsolete.  Hence, the EPA ban is not the result of a market response — it is the exact opposite.  It denies market demand by denying consumers the right to buy a product that they clearly want, and it denies potential registrants the right to sell that product.   

 

Responsibility to Comply with Data Quality Law

 

Even if the CPSC defers or denies this decision, its legal and moral obligations to the public do not end there.  Under the Data Quality Act, the commission is required to show that any information it disseminates meets standards maximizing “quality, objectivity, utility, and integrity.”[1]  These mandates were put into place because policymakers recognized that by simply distributing information, government agencies can have profound impacts on public and private sector decisions.  The CPSC’s recent study on CCA is highly likely to produce such impacts, and accordingly, the commission must ensure that it complies with the data quality law.  The law also demands that government agencies distribute only the best available, peer-reviewed science in a transparent manner.  At this point, it appears that the commission has not met these standards and hence it needs to take steps to comply with the law by improving its science and making its data and peer review more transparent.

 

CPSC is Responsible to Meeting the Highest Scientific Standards: Distribution of “Influential Information.”

 

OMB requires that information that qualifies as “influential” meet the highest data quality standards.  OMB defines “influential information” as that which an agency “can reasonably determine that dissemination of the information will have or does have substantial impact on important public policy or private sector decisions.”[2] CPSC’s guidelines concur, stating:  “Most of the information disseminated by CPSC does not fall under OMB's definition of ‘influential.’ However, CPSC's staff and contractor technical reports related to engineering, health science, or hazard analysis issues potentially have impacts on important public policies and private sector decisions, such as changes in voluntary standards.”[3]  It would stand to reason that this risk assessment on pressure-treated wood clearly qualifies as “influential” because it involves both health science and a hazard analysis, and it has potentially significant impacts on public policies and private sector decisions.

 

In particular, the CPSC’s study may prove particularly influential in ongoing litigation regarding the safety of CCA-treated wood.  If CPSC’s study overestimates risks, it may produce a direct and substantial harm on businesses involved in litigation.  If it underestimates risks, it places plaintiffs at a disadvantage. 

 

The study also poses other potentially perilous impacts on private-sector decisions.  In particular, it may encourage consumers, day care centers, and cities to tear down playgrounds, decks and other structures based on specious claims.  The costs to consumers and small business could prove quite substantial.  This concern is warranted by past experience with this issue.  Similar state-level studies in Florida on CCA-treated structures sparked a statewide scare that led people to begin tearing out such equipment.[4]  A subsequent study by a group of Florida physicians eventually concluded that CCA treated wood did not in fact pose a significant risk[5] and the state government eventually rejected legislation banning CCA.  However, the costs of the initial scare remain, and the information distributed will likely continue to mislead and confuse the public.

 

If CPSC’s study does have this effect, perhaps wealthy communities will be able to rebuild these structures, but what of the poorer communities?  Raising the costs of safe playgrounds may well mean that we will have fewer of them (particularly if localities are prompted to remove playgrounds).  Will kids in poor, inner-city neighborhoods be safer without safe play areas?  CPSC must consider that the absence of affordable safe playgrounds will create real risks that certainly outweigh theoretical risks of CCA-treated wood.

 

CPSC’s study (in addition to its failure to deny this petition) is likely to have a substantial effect on future regulatory decisions in other agencies.  In February 2002, EPA stated its intent to ban all residential uses of CCA-treated wood.  Even though the agency announced on March 17 at the CPSC hearings that it would soon issue its final decision in the Federal Register on this topic, its deliberations on CCA are not over.  There is a high probability that the CPSC study will impact future EPA decisions regarding non-residential uses as well as ongoing consideration as to whether to list CCA as a hazardous waste.  CPSC’s study is already having impacts at the federal level.  Senator Nelson of Florida cited the study in a press release in which he announced his decision to “renew” his efforts to ban CCA-treated wood.  He is introducing federal legislation to that effect.[6]

 

Numerous individuals and businesses stand to loose from such additional regulations.  Consider what the costs would be if CPSC actions build pressure for EPA to list CCA-treated wood as a hazardous waste.[7] Cost of disposal will rise for everyone from consumers to cities to small businesses.  CPSC should not underestimate this possibility and the associated welfare losses as prices for disposal rise.  For example, families may keep decks longer — even when the decks begin to deteriorate and become safety hazards — if both the costs of disposing the wood and building a new deck grow too high.

 

CPSC needs to consider the full implications of its actions.  That includes consideration of the “risk-risk” implications of every action it takes.  Everything in life carries risks and if we demand perfect safety, we can end up trading off small risks for big ones. 

 

CPSC Not In Compliance with Standards for the release of Influential Information

 

Under OMB guidelines, agencies must meet certain standards for “influential information.”  In particular, OMB states:  “If an agency is responsible for disseminating influential scientific, financial, or statistical information, agency guidelines shall include a high degree of transparency about data and methods to facilitate the reproducibility of such information by qualified third parties.”[8]  CPSC data quality guidelines agree, stating that such influential information from risk assessments and other scientific reports “should be highly transparent and capable of being reproduced by qualified persons. CPSC strives for a high degree of transparency about information and methods in order to improve understanding and to facilitate reproducibility by qualified third parties.”[9]

 

Yet the CPSC has failed to provide such transparency because it has failed to release the underlying data in its study as well as the peer review.  At the hearing, the commission indicated that it might be willing to release at least the peer review, but it remains unavailable.  CEI contacted the CPSC’s legal counsel who informed us that the commission has not decided whether it would release this information and the counsel indicated that the commission could wait until after the public comment.  However, the Data Quality Act does not appear to give agencies that option.  The law is designed to provide openness so that the public can have access to information before decisions are made or impacts result.  Holding up data until after a decision is made or even until the end of a comment period seems to contradict legislative intent.[10] 

 

OMB and CPSC data quality guidelines also address process for peer review of influential studies.  OMB states:

 

‘If data and analytic results have been subjected to formal, independent, external peer review, the information may generally be presumed to be of acceptable objectivity.’  However, this presumption is rebuttable based on a persuasive showing by the petitioner in a particular instance. If agency-sponsored peer review is employed to help satisfy the objectivity standard, the review process employed shall meet the general criteria for competent and credible peer review recommended by OMB-OIRA to the President's Management Council (9/20/01) (http://www.whitehouse.gov/omb/inforeg/oira_review-process.html), namely, ‘that (a) peer reviewers be selected primarily on the basis of necessary technical expertise, (b) peer reviewers be expected to disclose to agencies prior technical/policy positions they may have taken on the issues at hand, (c) peer reviewers be expected to disclose to agencies their sources of personal and institutional funding (private or public sector), and (d) peer reviews be conducted in an open and rigorous manner.’”[11]

 

CPSC’s peer review does not appear to comply with these standards.  CPSC’s briefing materials provide scant information on the peer reviewers backgrounds, nor is there evidence of disclosure of the reviewers prior policy positions on the issues, nor is there evidence of disclosure of funding sources, and finally the peer review was not conducted in an open and rigorous manner.  In fact, the peer review was conducted in private, and little information is on the substance of the peer review.

 

OMB standards do allow some data to remain protected if it qualifies for an exemption under the Freedom of Information Act, such as a national security or confidential business information exemptions.  Yet it is unclear that any such exemption exists in this case.  If there is an exemption, the CPSC has not provided any proof or explanation to that effect.

 

Moreover, if an exemption exists, the agency must comply with additional data qualify mandates.  In particular, OMB notes that “in situations where public access to data and methods will not occur due to other compelling interests, agencies shall apply especially rigorous robustness checks to analytic results and document what checks were undertaken.”  Hence, the agency is required to conduct and document such robustness checks if it claims that it cannot  release the data and peer review.  CEI found no mention of “robustness” studies and additional external, independent reviews in the CPSC briefing materials.  If the commission can demonstrate that it has a FOIA exemption, it needs to perform these studies and provide documentation to the public.

 

Best Available, Peer Reviewed Science & the CPSC Study

 

Finally, the data quality law demands that agencies employ the standard set in the Safe Drinking Water Act amendments of 1996, which demands the use of “best available, peer reviewed science.”  Specifically, OMB states:  “With regard to analysis of risks to human health, safety and the environment maintained or disseminated by the agencies, agencies shall either adopt or adapt the quality principles applied by Congress to risk information used and disseminated pursuant to the Safe Drinking Water Act Amendments of 1996 (42 U.S.C. 300g-1(b)(3)(A) & (B)).” 

In its data quality guidelines, the CPSC stated that it would comply with this portion for quantitative risks assessments by applying “the best available science and supporting studies conducted in accordance with sound and objective scientific practices.”[12]  There is good reason to believe that the commission has not met its standard.

Employing the best science and using the best methods for applying that research would reasonably include appropriate application of studies.  Studies used for risk assessments should apply to the issue at hand, and CPSC staff should be expected to consider limitations and recommendations made in those studies regarding proper use of the data.  Among the peer-reviewed studies applied by the commission are the research reports published by the National Research Council (NRC).[13]  The NRC studies do qualify as peer reviewed science.  However, the CPSC inappropriately applied the NRC findings, which likely results in serious overestimation of risk for pressure-treated wood.

 

A key problem with CPSC’s application of the NRC reports is its assumption that short-term exposure to arsenic from wood early in life is equivalent to the long-term exposures studied by the NRC.  The NRC data relied on data from Taiwanese populations exposed to relatively high levels of arsenic for decades in their drinking water.  The relevance of these studies to short-term exposures to trace levels of arsenic early in life here in the United States is highly questionable.[14]  The two types of exposures do not likely pose the same risks.  The NRC notes that an important risk is caused by the duration of exposure and the fact that exposure continued at old age.  Exposure during old age may be a key factor to arsenic exposure and cancer risk.

 

In addition, the NRC cautioned EPA in its report that there were serious problems with the data that produced great uncertainties,[15] which it noted that EPA should address before using the data in an actual risk assessment.  The NRC ran models on this data in it 1999 report, but warned: “this analysis should not be interpreted as a formal risk assessment for arsenic in drinking water or as a recommendation on how the risk assessment should be performed.  Rather it is presented only to illustrate points raised earlier in the chapter.”[16] In the interest of reviewing all the relevant scientific studies on the topic, the CPSC staff should have also considered the EPA’s Science Advisory Board’s review of the EPA risk assessment and the 1999 NRC report.  It reiterated the importance of not using the NRC report as a risk assessment and how uncertainties in the data warranted caution because they could lead EPA to significantly overstate risks.  The SAB expressed concern that EPA had in fact done just that, noting, “The agency may have taken the modeling activity of the NRC as prescriptive despite NRC comments about possible limitations.”[17] 

 

“Accordance with sound and objective scientific practices” should demand that the CPSC address data limitations noted by the NRC and the SAB.  In addition, it should require that the CPSC apply NRC recommendations on the proper use of the data and its findings.  Yet, the CPSC seems to have done the opposite, assuming all the worst possible effects based on the NRC report without regard to NRC warning against such application.  In fact, CPSC decided to choose a potency factor for arsenic that it notes is 6 to 56 times more potent that an already conservative standard that EPA used to set its drinking water standard.  Why CPSC picked such a high potency factor deserves further evaluation or at least a much more convincing explanation.  CPSC seems to be operating with the most conservative assumptions about risk even when the NRC noted that the data potentially had already greatly overestimated risks.

 

Conclusion

 

CPSC has both moral and legal responsibilities to the public.  In addition to ensuring that it has complied with the data quality law, CPSC needs to consider the considerable impacts that it decision and study could have on consumers, small businesses, and taxpayers.  Accordingly, these comments petition the agency to produce science that is more grounded in reality and that meet appropriate scientific standards.  After all, in a our free society, the commission’s bias should be to favor consumer choice, not spread unfounded fears and limit access to safe and beneficial products. 

 

 

[1] 44 U.S.C. 3502.

[2] Office of Management and Budget, Executive Office of the President, “Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies,” 67 Federal Register, no. 2 (January 1, 2002): 369–378.  (Corrected version published in 67 Federal Register, no. 36 (February 22, 2002):  8451-8460, see:  http://www.whitehouse.gov/omb/fedreg/reproducible.html.

[3] Consumer Product Safety Commission, “U.S. Consumer Product Safety Commission Information Quality Guidelines,” http://www.cpsc.gov/LIBRARY/infoguidelines.html.

[4] For example, see Stephanie Erickson, "Florida Study Finds Pressure Treated Wood Can Lead to Arsenic Poisoning,” November 9, 2001; and Julie Hauserman, “Alachua County Closes Playgrounds with Arsenic,” St. Petersburg Times, September 27, 2001. 

[5] Florida Physicians' Arsenic Workgroup, June 14, 2002, available online at: http://www.preservedwood.com/safety/0730cca-docs1.html;

[6] “Senator Renews Effort to Ban Arsenic-treated Wood,” Press Release, February 10, 2003, http://billnelson.senate.gov/billsviews/issuesmain.cfm#.

[7] Mary Ellen Klas, “Treated Wood Emerges as Environmental Hazard (arsenic pollution in Florida),” Florida Trend, October 1, 2001, Volume 44; Issue 6.

[8] Office of Management and Budget, “Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies.”

[9] Consumer Product Safety Commission, “U.S. Consumer Product Safety Commission Information Quality Guidelines.”

[10] Telephone communication between Angela Logomasini (CEI) and William DuRoss (Legal Counsel, Consumer Product Safety Commission), March 26, 2003.

[11] Office of Management and Budget, “Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies.”

[12] Consumer Product Safety Commission, “U.S. Consumer Product Safety Commission Information Quality Guidelines.”

[13] National Research Council, Arsenic in Drinking Water (Washington, D.C.:  National Academy Press, 1999); and National Research Council, Arsenic in Drinking Water 2001 Update (Washington, D.C.:  National Academy Press 2001).

[14] For more details, see the written March 28 comments to the CPSC submitted by Dr. Kenneth Brown, who served on the NRC panel in 1999.

[15] National Research Council, Arsenic in Drinking Water, p. 294.

[16] National Research Council, Arsenic in Drinking Water, p. 264.

[17] EPA Science Advisory Board, Arsenic Proposed Drinking Water Regulation:  A Science Advisory Board Review of Certain Elements of the Proposal, EPA-SAB-DWC-01-001, December 2000, p. 26, available at: http://www.epa.gov/sab/pdf/dwc0101.pdf.