As arsenic leaches, pressure builds on treated-wood industry. (News & Trends).

After three weeks of sawing wood to make picnic tables, Jimmy Sipes, a U.S. Forest Service employee in Bloomington, Indiana, suddenly became ill and vomited seven to eight units of blood in his home bathroom. His wife drove him to the hospital, where doctors prescribed a mild diet. They failed to diagnose the cause of his illness--arsenic poisoning.

A year later, Sipes was again working on picnic tables when his symptoms returned. This time he suspected the wood, and soon his suspicions were confirmed: It had been treated with chromated copper arsenate (CCA), a pesticide used as a preservative. His exposure caused toxic levels of arsenic in his body. Tests showed the levels in his fingernails were hundreds of times higher than normal.

In 1985, Sipes brought one of the first lawsuits seeking compensation for injuries caused by CCA exposure. He sued Osmose Wood Preserving Co. of America, Inc., which manufactured the chemicals used to treat the wood. His suit claimed that Osmose failed to warn consumers that the wood contained arsenic--and that it knew of two incidents of injury from the chemicals but did not report them to the Environmental Protection Agency (EPA).

The jury found the company liable. (Sipes v. Osmose, 546 N.E.2d 1223 (Ind. 1989).) Sipes is totally disabled and fights chronic pain from his injuries.

More than a decade later, the EPA has announced a plan to phase out CCA as a preservative for wood used in residential settings, but that won't stop litigation. The momentum is building as plaintiffs file cases across the country.

"It's a simple case of products liability," said David McCrea of Bloomington, who represented Sipes. CCA-treated wood "is unreasonably dangerous because no warnings were issued."

Ninety percent of all outdoor wooden structures, including decks and children's play sets, are made with CCA-treated lumber. Over 30,000 metric tons of arsenic per year are used to make CCA.

Chromated copper arsenate belongs to a class of chemicals known as inorganic arsenicals. A pressure-treating process saturates wood products with the chemicals. The arsenic in the mixture protects against insects, the copper guards against fungus, and the chromium binds the first two to the wood.

Untreated wood exposed to air, soil, and water will generally rot or incur insect damage in 3 to 5 years. CCA treatment can turn southern pine, a soft and relatively inexpensive wood, into a hardy lumber that repels dry rot, mold, and termites. Treated wood can often retain its structural integrity for 10 to 20 years.

The problem is that the arsenic leaches from the wood and can poison those exposed to it. The Agency for Toxic Substances and Disease Registry of the Centers for Disease Control and Prevention ranks arsenic number one of the top 20 hazardous substances. It has been linked to cancer, birth defects, and reproductive problems.

The agency's arsenic fact sheet says, "Breathing high levels of inorganic arsenic can give you a sore throat or irritated lungs. Ingesting high levels of inorganic arsenic can result in death. Lower levels of arsenic can cause nausea and vomiting, decreased production of red and white blood cells, abnormal heart rhythm, damage to blood vessels, and a sensation of `pins and needles' in hands and feet.... Several studies have shown that inorganic arsenic can increase the risk of lung cancer, skin cancer, bladder cancer, liver cancer, kidney cancer, and prostate cancer."

Consumer groups assert that when people saw, drill, sand, or otherwise handle treated wood without proper safety precautions, the arsenic can be dislodged. It can then rub off on the skin, causing irritation, or be transferred to other surfaces--even into the mouth. Splinters can also expose people to high levels of arsenic. Children who use playground equipment made of CCA-treated wood are especially at risk.

Sawdust from treated wood and the smoke produced when it is burned can also contain high levels of arsenic. Both are dangerous when inhaled.

There are also environmental concerns: Rainwater can carry CCA into the soil, where it seeps into the groundwater. Some industrial sites have been contaminated when wood treaters have released the chemicals into the environment.

A tainted history

Chromated copper arsenate has been used as a pesticide and wood preserver since the 1930s. CCA-treated wood became popular in the 1970s for home decks and playground equipment. Retail sales now total about $4 billion per year.

In 1978, the EPA began investigating the risk that inorganic arsenicals cause cancer, genetic mutation, and birth defects. By 1993, the agency had banned all uses of inorganic arsenicals, except as wood preservatives, because investigators had determined that arsenic posed an unacceptable risk to those exposed to it.

After talks with the EPA in the early 1980s, the wood-treatment industry agreed to voluntary safe-handling warnings, but the safety information did not always reach consumers. In the past two years, more evidence has emerged linking arsenic to cancer risk, so the EPA has begun to study the issue again.

Last year, Dr. Stephen Robert of the University of Florida's Center for Environmental and Human Toxicology analyzed data from three formal risk assessments of exposure to arsenic through direct contact with CCA-treated wood. He concluded that "children face a real and significant risk of cancer from simply touching CCA-treated wood and ingesting the arsenic via hand-to-mouth contact."

Also last year, the Environmental Working Group (EWG) and the Healthy Building Network, both consumer advocacy groups, produced a report on the risks to children from CCA-treated playground equipment. The groups asked the Consumer Product Safety Commission to ban CCA-treated wood from playgrounds and to conduct a general review of its safety.

In June 2001, the EPA announced a new program requiring manufacturers to tag treated wood with labels specifically saying it contains arsenic. And last fall, the agency convened a panel of scientific advisers to discuss research findings regarding the safety of CCA-treated wood.

In February 2002, the agency announced a "voluntary decision by industry" to phase out wood preservatives containing arsenic in wood intended for "residential uses" by December 31, 2003. Wood treated before the deadline may still be sold, and the chemicals may still be used in nonresidential settings.

In a press release, the EPA said it had not identified any "unreasonable risks to the public [from] existing CCA-treated wood being used around or near their homes or from wood that remains available in stores." However, the agency did note that arsenic is a known human carcinogen and that any reduction in potential exposure is "desirable."

Consumer advocates say that a study released in August by the Environmental Working Group shows otherwise. A home sampling program by EWG and the University of North Carolina-Asheville's Environmental Quality Institute found that, "contrary to the reassurances of the EPA, homeowners with old arsenic-treated decks, play sets, and picnic tables remain at risk from high levels of arsenic on old wood."

The study involved 300 wipe tests from 263 decks, play sets, picnic tables, and sandboxes in 45 states. It found that "older structures are just as likely to have extremely elevated levels of arsenic on the surface as are newer structures.... Commercial deck sealants provide no long-term reduction in arsenic levels on the surface of arsenic-treated wood.... [and] even for decks that have been recently sealed, arsenic can still be found at levels of concern."

Too little, too late

Consumer groups and attorneys say the EPA's phase-out plan is not enough. "Nothing short of a ban of all uses of the hazardous wood preservatives will protect the public from the chemicals' short- and long-term adverse health effects," said Jay Feldman, executive director of Beyond Pesticides/National Coalition Against the Misuse of Pesticides. "Since less toxic and nontoxic alternatives are available for all wood-preservative uses, it is wrong and unnecessary to allow any use to continue."

Several environmental groups (including Beyond Pesticides, the Healthy Building Network, and EWG) have petitioned the EPA to ban all heavy wood preservatives. In addition to their claim that the phase-out period is too long, they also say the agency has not adequately addressed industrial use of wood preservatives, existing structures made of treated wood, and waste-disposal concerns.

The EPA plan is "too little and way too late," said Eulis Simien of Baton Rouge, Louisiana, who heads the Louisiana Trial Lawyers Association's Toxic Tort Section. "This should have been done a long time ago, at least in the 1980s when [the manufacturers] knew it was a real problem. Instead, they fought it as long as they could, and even when they came to realize that they would have to do something about it, they bought themselves an additional two years of manufacturing."

The treated-wood industry denies that point of view.

"Let there be no mistake, we absolutely stand by the safety of wood products treated with EPA-approved preservatives, including CCA," said Parker Brugge, executive director of the Treated Wood Council and president of the American Wood Preservers Institute (AWPI), in a press release.

"We also continue to support rigorous scientific research, which has consistently upheld the safety of CCA-treated wood when used as recommended."

AWPI is the national trade association for the pressure-treated-wood industry. Mel Pine, the spokesman for the institute, pointed to a study by Gradient Corp., an environmental consulting firm. Led by toxicologist Barbara Beck, the study found that "CCA-preserved wood does not present undue health risks to children or adults from short- or long-term exposure."

"Parents can be assured by our findings," Beck wrote in the report. "Even with assumptions for study purposes that likely overestimate the risks, our assessment concludes that the estimated health risks from the inorganic arsenic in CCA-preserved wood fall within the EPA's acceptable risk levels."

In addition, the Florida Physicians Arsenic Workgroup, a six-physician panel appointed by the state's health department, found in its research that the level of arsenic "in and around CCA-treated wood in playgrounds and recreational facilities does not appear sufficient to adversely affect the health of children or adults."

Claims go to court

Industry and government assurances have not deterred plaintiffs, who contend that the wood is dangerous.

"For the longest time, people were simply not aware that there was arsenic and chromium in the wood," said Louisiana's Simien. "Lots of people would be getting sick after exposure and wouldn't have any idea what caused it. But now that there is beginning to be more and more publicity, we foresee a significant number of additional suits."

Claims might include personal injury for acute or long-term exposure, property damage, and site contamination, he said.

The defendants in the cases fall into four categories, said Indiana attorney McCrea:

* the AWPI, which represented the industry during the EPA's review of CCA and persuaded the agency not to require warnings on the wood

* the manufacturers of CCA: Osmose, Inc., of Griffin, Georgia; Arch Wood Protection, Inc., of Smyrna, Georgia; and Chemical Specialties, Inc., of Charlotte, North Carolina 

* the wood treaters, companies that buy CCA from its manufacturers and apply it to the wood using a pressure-treatment process

* the retailers, stores such as Home Depot and Lowe's, that sell the wood to consumers.

How widespread are the suits? "How widespread is Lowe's and Home Depot's marketing strategy?" Simien said. "CCA-treated wood can be found in backyards in every city in the country."

Lawyers handling suits filed in state courts in Louisiana, Arkansas, and Alabama, and in federal court in Miami, are seeking class certification. Eulis Simien and his partner, Jimmy Simien, chair of ATLA's CCA Pressure-Treated Wood Litigation Group, say their Louisiana suit claims that the treated wood fails to comply with implied warranty requirements under the Uniform Commercial Code. The Arkansas suit is seeking replacement of CCA-treated structures to stop exposure to the contaminants, said attorney Brian McMinn of Winter Park, Florida.

The Alabama suit is a personal injury claim. The primary plaintiff is a small child who got a large splinter in his foot from a CCA-treated deck. He was diagnosed with an immune-system disorder and kidney dysfunction related to arsenic poisoning. As a result, a common cold could be life-threatening and the child is a candidate for a kidney transplant, said counsel Barry Ragsdale of Birmingham.

Gary Graifman of Montvale, New Jersey, said the federal suit in Miami was filed on behalf of property owners who have CCA-treated structures, such as decks and play sets, outside their homes. Their properties are now contaminated by elevated levels of arsenic in the soil.

Most of the individual suits are personal injury claims involving acute exposure. Many stem from people handling the wood for home projects or receiving splinters from decks. In one case involving chronic exposure, a carpenter in Florida has filed suit after being diagnosed with nasopharyngeal cancer. His doctor attributes the cancer to "30 years of continuous work as a carpenter using CCA-treated wood in framing decks, pilings, and wharfs," said his attorney, Jim Messer of Pensacola.

Attorneys representing victims of arsenic poisoning insist these cases are straightforward, as long as the plaintiffs have evidence to show the industry's wrongdoing.

"Attorneys need to know that the industry has not only failed to advise consumers of the fact that the wood contains arsenic, but has affirmatively made misstatements denying the fact that there's arsenic in it--claiming that it's so safe that you could use it to make popsicle sticks," said Eulis Simien.

"If the industry had told the truth back in 1977, the EPA would have never approved the product," said McCrea. "Attorneys need to know that these cases are not about adequate warnings--they're about no warnings."