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Comments of Angela Logomasini,
Director of Risk and Environmental Policy, Competitive Enterprise Institute
Before the Consumer Product Safety Commission
Regarding the use of Chromated Copper Arsenate in Playground Equipment
March 17, 2003
On the surface, Consumer Product Safety Commission’s (CPSC) role in the debate over wood treated with the preservative chromated copper arsenate seems limited. It is currently focused on the question of whether to initiate a regulatory action to answer a petition requesting a ban on the use of CCA on playground equipment. Yet, CPSC has a responsibility beyond this decision before us today. All CPSC activities and studies will impact other regulatory actions, particularly those ongoing at the environmental Protection Agency (EPA). Accordingly, as a member of the public, I urge that the Commission consider all the implications of its actions and ensure that it does not do needless harm to public health and well being by failing to see the bigger picture.
In particular, the EPA continues to consider what residential uses of CCA-treated wood it will allow after it completes its risk assessment on the issue. In February 2002, EPA stated its intent to ban all residential uses (many not don’t even have much relevance to children), which included several uses that most people would not consider “residential,” such as some agricultural uses. While existing registrants may want to stop selling this product, should EPA reaffirm its long-held position that CCA does not pose an unreasonable risk, it could leave open the possibility for other firms to register this product. Or it could broaden the uses allowed even with a limited residential ban, reducing the number of small businesses, taxpayers, and consumers adversely affected. In addition, EPA is considering whether to classify CCA as a hazardous waste.
Numerous individuals and businesses stand to loose from these actions. 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 a risk and if we demand perfect safety, we can end up trading off small risks for big ones. For example, certainly there are accidents on escalators. Yet we don’t ban escalators because we know that there would be more accidents on regular stairways. CPSC must be cognizant that there will likely be adverse health and safety implications of its actions on CCA.
¨ Consider that a CPSC finding that CCA isn’t safe (as your study recently suggested), may encourage local governments, daycare centers, and others to tear out playground equipment, as we have seen happen in Florida. 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.
¨ If CPSC actions build pressure for EPA to ban residential uses of CCA, consumers will pay at least an additional 20-30 percent for decks, retaining walls, and similar outdoor structures. One farmer noted to EPA in comments that when he investigated the cost of fence posts made with the popular alternative product, it learned that it would cost twice as much as posts treated with CCA and the post was only expected to last half as long. Hence, for him, that’s a quadrupling of costs.
¨ The alternatives included upgrading decking material to much more expensive, harder woods such as cedar, redwood, or plastic lumber. It might well be worth investigating whether cutting down more redwood forests would be a good environmental policy. We do know that these options are cost-prohibitive for many families and communities, as they can double the cost of decks, playground equipment, and numerous other outdoor structures. Accordingly, regulators assume that the public can switch to one of several other alternative preservatives, yet each of products presents their own risks that regulators have not considered.
¨ For example, the CPSC notes that it has not tested the alternatives and doesn’t know they are more or less dangerous than CCA. CPSC simply operates on the assumption that they are less dangerous.
¨ Most of the alternatives use high levels of copper, which corrodes screws, nails and other fasteners. Consumers must use more expensive stainless steels screws, nails, and other fasteners with these products. This aspect of the new product should raise safety concerns as we can expect that some consumers will use the wrong screws and nails, leading to an increase in deck failures and related injuries and deaths.
¨ The alternative products leach considerable amounts of copper, which if it reaches waterways can prove toxic to fish. I understand that potentially adverse impacts on wildlife prompted Florida to decide against switching to the alternative product.
¨ I have also learned that when Home Depot and Lowes switched to the alternatives, builders wouldn’t buy them because of the problems noted above. Home Depot and Lowes are now CCA-treated wood until the ban leaves builders no other choice but the buy the other products.
¨ Small business implications are also considerable. About 350 wood processors would have to retool their shops at a very high cost before switching to alternative preservatives. Because the alternative requires that machinery be all stainless steel, retooling is expensive. Retooling costs range up to a couple hundred thousand dollars for many small firms.
¨ Local governments will also feel the cost because the ban will create pressure for them to remove playground sets made with CCA and go to the expense of replacing them. Of course, we will all feel this cost in the form of higher taxes.
¨ In addition, several companies are facing litigation based on claims about CCA safety. If CPSC issues faulty research, these firms will find it harder to defend against bogus safety claims. We all know who pays the costs of this type of litigation — the consumer. If there were solid data convicting CCA, I personally would not have problem with the litigation. But I am not convinced that such data exist. In fact litigants are loosing many of the suits. The problem is, they are still expensive to defend and will be more expensive if government studies on the topic are not conducted properly.
¨ We must also remember that poorly conducted studies will build pressure for bans on other uses of CCA (such as additional agricultural and construction uses). Of course, there may be big costs associated with such bans.
¨ CPSC actions may also build pressure for EPA to list CCA-treated wood as a hazardous waste, raising costs 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 a safety hazard if both the costs of disposing the wood and building a new deck grow too high.
Science & the CPSC Study. The public may suffer reduced safety and heavy costs simply because CPSC produced a study of questionable scientific value. Even if the Commission defers the issue to EPA completely or denies the petition to consider a rulemaking itself, it needs to reevaluate its study.
My organization has arranged for Dr. Kenneth Brown  to discuss serious questions  about the assumptions of the CPSC study on this issue. He focuses on two key problems with the study. I am sure there are other scientists that will provide comments and note additional problems with the CPSC study. CPSC should consider this information and consider revising its study.
The CPSC study says that, given the recent findings of the National Research Council (NRC) reports on arsenic (1999 and 2001), CCA is not safe for use on playground equipment. While the press have made it appear that children are at risk, CPCS should emphasize that it isn’t suggesting that children will get sick. CPSC needs to emphasize that if there is any risk, it is a slight increase cancer for older Americans (exposed to arsenic early in life).
CPSC also needs to put the risk that it found in perspective. Science writer Steve Milloy did a good job translating the CPSC-estimated increased cancer risk. As Milloy explained it, if CPSC was correct in all its very conservative assumptions (which is questionable), CCA might increase a person’s lifetime risk for lung cancer from “1.01 percent to between 0.012 to 1.120 percent” and for bladder cancer, the increased risk might rise from “about 2 percent to between 2.0002 to 2.01 percent.” Placed in this perspective, I don’t think many mothers would panic about pressure treated wood, particularly if they were advised that risks would drop dramatically by preventing hand and mouth activity and hand washing.
But as Kenneth Brown’s comments  indicate, CPSC is likely vastly overestimating exposures. In particular, CPSC changed its long-held position that CCA posed no unreasonable risk because it used data from the NRC reports on arsenic. These reports relied on data from malnourished 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. In addition, the NRC noted that the data was highly flawed and it might well be greatly overestimating risks. Add the fact that research if increasingly indicating that arsenic may even be an essential nutrient or as least offer health benefits at low levels.
Also curious is the fact that the CPSC decided to choose a potency factor for arsenic that it notes is 6 to 56 times more potent that what EPA used to set its drinking water standard. Why CPSC decided such a high potency factor also 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 overestimate risks because of overly conservative assumptions.
CPCS needs science that is more grounded in reality and that recognizes that its actions too may create new risks — risks that may far exceed any theoretical risks emanating from trace-levels of arsenic. CPSC also needs to remember that a poorer society is not a safer or healthier one. If we raise the cost of living, innovation, and entrepreneurship, we won’t only have a poorer world; we will have a less safe one as well.