Written Comments to the Consumer Product Safety Commission Regarding the use of Chromated Copper Arsenate in Playground Equipmen
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Competitive Enterprise Institute
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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.” 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.” 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.” 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. A subsequent study by a group of Florida physicians eventually concluded that CCA treated wood did not in fact pose a significant risk 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.
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. 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.” 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.”
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.