In December 2019, Dave Webb, the Creosote Council’s Administrative Director, and Lawrence Ebner, founder of Capital Appellate Advocacy PLLC in Washington, DC, published a peer-reviewed article titled “Scope and Application of the FIFRA Treated Articles Exemption” in the Journal of Transportation Technologies.
The paper discusses the U.S. Environmental Agency’s potential improper expansion of its authority under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), the federal pesticide statute, to regulate not only the registration, labeling, and use of wood preservatives, but also treated wood products.
EPA’s oversight of wood preservatives under FIFRA is extensive. In recent years, despite EPA’s own Treated Articles Exemption, 40 C.F.R. § 152.25(a), EPA has moved toward utilizing wood preservative labeling in a way that could impose restrictions on the end use of treated wood. Wood preservative registrant and user groups should be concerned and vigilant about this trend toward regulation of treated wood. At the same time, they should continue to interact with EPA in a constructive manner, in part to ensure that EPA respects its own regulatory boundary between wood preservatives, such as creosote, and treated wood, such as creosote-treated railroad crossties, which are a key component of the nation’s transportation critical infrastructure.
You can access the full article here: Scope and Application of the FIFRA Treated Articles Exemption