Testimony of Paul Bogart, Healthy Building Network

Before the Consumer Product Safety Commission

March 17, 2003

Good afternoon, my name is Paul Bogart and I represent the Healthy Building Network.  Thank you for the opportunity to testify today on the Healthy Building Network’s and Environmental Working Group’s petition to ban the use of CCA lumber in playgrounds.  The Healthy Building Network is a national network of green building professionals, environmental groups, consumer advocates and concerned parents who are interested in promoting healthier building materials as a means of improving public health and preserving the global environment.

As you know, in May of 2001 we submitted a petition seeking a ban on the use of arsenic treated wood in playground equipment.  More than thirty organizations representing hundreds of grassroots groups across the country have endorsed the petition.    

Over the past two years, we have spoken to thousands of concerned parents, teachers and others about the completely unnecessary risk posed by the use of arsenic treated lumber in decks and playgrounds.  In almost every case, the response has been the same: if it isn’t necessary, and it is a potential hazard, let’s get rid of it. 

School boards, municipalities, city councils, parents and even the playground manufacturing industry, to its credit -- have reached the common sense conclusion that regardless of the rate of arsenic leaching from the wood, or the rate of human exposure to the arsenic, prudence dictates that children should be exposed to as little arsenic as possible in their lives, and none of it should come from their play things. Many have therefore decided to eliminate arsenic treated wood from their playgrounds, schoolyards, and park.  To the best of our knowledge, not a single major playground manufacturer currently uses CCA treated wood.

Now, the Consumer Product Safety Commission has before it a staff report that confirms the obvious with scientific analysis:

·        arsenic leaches from the CCA treated wood;

·        it is even more toxic than previously thought;

·        children are among the most vulnerable populations.

The Commission now has an opportunity to accelerate the necessary, achievable, and long overdue transition away from the use of arsenic coated wood in children’s products.  In so doing, it will ensure that those leaders in the affected industries, e.g. the playground companies that have already stopped using CCA treated wood, do not lose one more cent of revenue to the laggards among their competitors, who have resisted this change, and continue mislead parents into thinking that all wooden playground models are alike.  The Commission has an overwhelming obligation to speak forcefully and without equivocation on this issue because if history is our guide, the arsenic lobby well represented here today will exploit any ambiguity or nuance in the Commissions statement to further mislead the public. HBN is particularly concerned about this point.

It has been 13 years since the CPSC last examined the issue of Playgrounds built with arsenic treated wood.  The arsenic industry has routinely mischaracterized the rigor of your previous analysis and its conclusions, to mislead parents, consumers, municipal officials and playground equipment manufacturers. Wearing the CPSC’s stamp of approval of CCA like a badge of honor, the arsenic industry caused millions of CCA playsets to be sold to consumers under false assurances of safety since 1990, even as the data which you have before you today mounted.

During the Commission’s first hearing on our petition, in August 2001, the American Wood Preservers Institute (AWPI) testified that: An extensive 1990 report by the CPSC found that CCA-preserved wood is an appropriate materials for playgrounds. (PowerPoint Briefing by Scott Ramminger to CPSC, 8/6/01.)  In fact, your 1990 analysis contained no such finding.   The contrary it concluded: This suggests that a possible hazard might be created when playground equipment is built with unfinished pressure treated wood from retail sources.   (CPSC memorandum 8/2/90, Executive Summary.)

We have also presented the Commission with evidence that manufacturers’ knowingly provided misleading information to consumers in brochures such as the one from the (Osmose corporation entitled CCA FACTS , attached).  This brochure for retail consumers features the words, all capitals, USE IT FOR PLAYGROUNDS   next to a color illustration of a playground structure, and CCA TREATED WOOD IS NOT HAZARDOUS   next to the color illustration of a picnic table.   (The manufacturer’s Material Safety Data Sheets, attached)  explicitly contradicts these statements with these warnings, among others: This product must not come in contact with food or feed, and Approximately 2.5oz (6 cubic inched) of treated wood dust ingested by a small child may be life threatening.

The responsibility facing this Commission may be complicated and daunting, but it is not in doubt: New playgrounds made with arsenic treated wood must be banned, and decisive steps must be taken immediately to protect children from those playgrounds already in use. 

While Healthy Building Network views many of the findings stated in the Staff report as a vindication of the assertions contained in our original petition to the Commission; the recommendation that the Commission defer action until after the EPA has acted, and the impact of that action assessed, seems dangerously out of synch with their findings. 

The EPA agreement, when finalized, is very limited in its ability to protect children on a number of fronts:

First, the agreement would allow any CCA lumber produced before the end of this year to be sold indefinitely, virtually assuring that despite the findings of the staff report, CCA playsets will continue to be sold to unsuspecting consumers well into next year. 

If CPSC staff estimates of playground sales in the previous decade hold true, we are talking about more than a quarter of a million ADDITIONAL arsenic treated playsets sold to consumers while the CPSC and EPA wait to take decisive action based on their own science.

Second, the voluntary labeling program currently in place for arsenic treated wood only applies to retail sales of lumber.  This means that despite the conclusions of the CPSC staff that use of such lumber for playsets represents a significant cancer risk well above the generally accepted level for federal action; consumers who purchase arsenic treated playgrounds will not even receive a label informing them of the  presence of arsenic nor the risks involved.

Third, deferring action, as recommended in the Staff report, positions the CPSC as a roadblock to completing a transition that has already begun in earnest by a majority of playground manufacturers.

Currently, the International standards organization (ASTM), as well as the International Play Equipment Manufacturers Association (IPEMA), are awaiting CPSC action before updating their standards.  Further delay on this issue not only impacts these organizations but perhaps more importantly, rewards those remaining playground manufacturers still using CCA while punishing the majority of manufacturers who have taken a leadership position on this issue.

For these reasons, as well as for the health of the tens of millions of children who play on arsenic coated playgrounds daily, deferring action on the this issue is incompatible with the findings of the Staff report.

Instead, the Commission should take the following steps:

1.                  HBN believes that playground equipment made from CCA wood meets the statutory definition under the Federal Hazardous Substances Act of a children’s product which contains a hazardous substance in such manner as to be susceptible of access by a child to whom such article is entrusted.  On the basis of this determination, HBN requests that CPSC begin rulemaking to immediately ban new playground equipment made from CCA treated wood.

2.                  Given the extended service life and greater use of public and commercial playground equipment made from CCA wood, HBN requests that such equipment be recalled immediately and that CCA manufacturers pay the cost of this recall.

3.                  HBN requests the Commission to direct the manufacturers/retailers of CCA playground equipment to notify, in writing, all customers who purchased such equipment in the past twenty years, and for whom records exist, of the findings of the CPSC staff report and relevant EPA findings and recommend mitigation measures to reduce dislodgeable arsenic.

4.                  HBN requests that the Commission use aggressive means to inform the public of the findings in the staff report including increased cancer risks posed by CCA playground equipment, as well as recommended mitigation measures.

5.                  HBN requests that the CPSC join with the EPA in an expedited study to determine the best mitigation measures for reducing the amount of dislodgeable arsenic from CCA playground equipment AND decks.