Regulation of Creosote
How Creosote Is Regulated
Creosote, like all wood preservatives, is comprehensively regulated as an antimicrobial pesticide by the U.S. Environmental Protection Agency (“EPA”) under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”). To be lawfully sold and used in the United States, all creosote producers (i.e., manufacturers or importers) must obtain and maintain a FIFRA registration for each of their creosote wood preservative products.
As discussed in a 2016 paper published by the American Wood Protection Association, creosote, like other wood preservatives, has been continuously reviewed and registered by EPA for more than four decades.
Creosote wood preservative products are classified under standards established by the American Wood Protection Association (“AWPA”) as either AWPA P1/P13 creosote, AWPA P2 creosote, or AWPA P3 creosote. Those products must be distributed with nationally uniform, EPA-regulated and approved product labeling that includes directions for pressure treatment of wood, warnings and precautionary measures for wood treatment plant personnel, and other information required by the EPA. FIFRA-registered creosote wood preservative products also must receive registrations from state pesticide regulatory agencies before being sold or used. It is unlawful under both FIFRA and state pesticide statutes to use creosote, or any other pesticide product, in a manner inconsistent with its EPA-approved labeling.
EPA has classified creosote, like other heavy duty wood preservatives, as a restricted-use pesticide product. This means that creosote only can be sold to and used for the pressure treatment of wood by, or under the direct supervision of, certified applicators. Such applicators have been certified by state pesticide regulatory agencies after receiving special training and/or being tested on safe handling and application procedures.
Post-Registration Review of Creosote
FIFRA requires EPA to periodically review all FIFRA-registered pesticidal active ingredients—including creosote and other wood preservatives—to ensure that their continued registration is supported by up-to-date scientifc test data and meets current regulatory standards.
After undergoing a comprehensive FIFRA “Reregistration” review that began in 1986, EPA issued a Reregistration Eligibility Decision (RED) for Creosote in 2008 announcing the Agency’s science-based determination that creosote wood preservative products are eligible for reregistration. See 73 Fed. Reg. 69,646 (Nov. 19, 2008). The Creosote Council and its members invested millions of dollars in sponsoring product chemistry, toxicology, worker exposure, and other types of scientific studies that EPA required to be conducted and submitted in conjunction with the FIFRA reregistration review. Those studies were conducted in accordance with FIFRA Good Laboratory Practice (GLP) Standards under the supervision of the Creosote Council’s Technical Advisor.
Throughout the reregistration review, the Creosote Council interacted with the Antimicrobials Division and other EPA units in a cooperative, constructive, and forthright manner. For example, in order to mitigate potential risks from use of non-pressure treated wood, the Council’s members voluntarily cancelled all non-pressure treatment uses of creosote, effective December 31, 2004. See 69 Fed. Reg. 55,623 (Sept. 15, 2004). As another example, following issuance of the creosote RED, the Council worked with EPA in developing extensively revised, nationally uniform, creosote product labeling and supplemental labeling. The revised labeling, which creosote registrants started using in August 2010, incorporates new, EPA-required administrative and engineering controls for risk mitigation at creosote wood treatment plants.
An instructional video produced by the Creosote Council illustrates these worker risk mitigation measures: Video: Creosote Council – Proper Use of Creosote When Pressure Treating Wood
In 2006, EPA’s “Registration Review” program began to replace the previous “Reregistration” program. Under the Registration Review program, EPA is required by FIFRA to reevaluate every registered pesticide active ingredient at least once every 15 years to ensure that it continues to meet FIFRA’s standards for registration. The first step in the process is issuance of an active ingredient-specific “prelminary work plan,” which identifies what additional types of studies are needed. In some cases, including creosote, this overlaps with post-RED studies required by EPA under the reregistration program.
A Final Work Plan for Creosote was issued in September 2015. It identifies the additional studies needed by EPA to complete the creosote registration review. The Creosote Council is in the process of sponsoring and submitting those studies. In December 2019 EPA released for comment a Registration Review Draft Risk Assessment for Creosote. The registration review is scheduled for completion by March 2021.
Regulation of Creosote-Treated Wood Products
Under EPA’s “treated articles exemption,” railroad crossties, utility poles, foundation and marine piling, posts, lumber, and other wood products that have been pressure-treated with FIFRA-registered creosote wood preservatives are not subject to FIFRA regulation. See 40 C.F.R. § 152.25(a). This regulatory exemption extends only to the treated wood product itself, not to the creosote used to treat the wood. A published paper entitled Scope and Application of the FIFRA Treated Articles Exemption discusses the exemption in greater detail.
Construction projects using marine piling treated with creosote require a permit from the U.S. Army Corps of Engineers (USACE), which is responsible for issuing permits under the federal Rivers and Harbors Act and the Clean Water Act. USACE, in turn, must consult with the National Marine Fisheries Services (NMFS) and the Fish and Wildlife Service (FWS) under the Endangered Species Act to ensure that it is not undertaking, funding, permitting or authorizing any action that is likely to jeopardize the continued existence of a listed species or destroy or adversely modify designated critical habitat.
Preserved Wood and the Enviroment
Wood offers many environmental benefits compared to alternative materials. It is the only construction material made from a sustainable, renewable resource. The application of preservatives extends the natural life of the wood from years to decades.
Preserving sustainable forest environments involves inputs and outputs:
- Carbon Dioxide
- Mature Forest
- Wood Products
- Recreation Area
- Stored Carbon
Protection of water quality and the diversity of life forms in lakes, streams, estuaries, bays and wetland environments of North America is a goal and responsibility shared by everyone.
Preservative-treated wood is widely used to construct bridges, piers, docks, boardwalks, decks and buildings used in or over aquatic and wetland areas.
To assist in specifying, the industry joined together to produce Best Management Practices, or BMPs, to guide the use of preserved wood in, near or over water.
Larry Ebner has served as attorney for the Creosote Council since its inception in the mid-1980s. The Council’s Administrative Director, Dave Webb, recently asked Larry to chat about his professional background and work with the wood preserving industry. Dave...
New Article on Wood Preservative Regulation: Scope and Application of the FIFRA Treated Articles Exemption
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...