Scope and Application of the FIFRA Treated Articles Exemption
- 1 Capital Appellate Advocacy PLLC, Washington, DC, USA
- 2 Creosote Council, Valencia, PA, USA
Abstract
This 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.
- 40 C.F.R. §§152.25 & 152.25(a).
- Id. § 152.25(a).
- See EPA Label Review Manual (rev. April 2014), ch. 2, pt. IV.B (providing examples of treated articles or substances covered by the Treated Articles Exemption, including treated lumber, and mold or mildew-resistant paint, shower curtains, bathroom caulks, and fabrics; also providing examples of products, such as clothing treated with pesticides to repel insects, that are not exempt); Pesticide Registration Notice 2000-1, pt. I (explaining that antimicrobial-treated consumer products do not qualify for the Treated Articles Exemption if they make public health claims that extend beyond protection of the article itself).
- See also FIFRA § 25(b), 7 U.S.C. § 136w(b) (“Exemption of pesticides”).
- See 49 Fed. Reg. 37,916, 37,937 (Sept. 26, 1984) (proposed §152.10, replacing previous § 162.4, stating that treated wood, and other treated articles or substances, are “[p]roducts that are not pesticides because they do not have a pesticidal effect” (emphasis added)).
- 40 C.F.R. § 152.25.
- 49 Fed. Reg. 37,960, 37,969 (Sept. 26, 1984).
- See In the Matter of Chapman Chem. Co., FIFRA Docket No. 529 (June 11, 1985).
- Creosote Final Work Plan for Registration Review (Sept. 2015) at 20.