On March 5, 2021, EPA announced the proposed cancellation of Pentachlorophenol registration under the Federal Insecticide Fungicide and Rodenticide Act (FIFRA). The agency concurrently issued its Proposed Interim Registration Review Decision (ID) for Pentachlorophenol (Docket ID No. EPA-HQ-OPP-2014-0653). A registration review decision is the agency’s determination of whether a pesticide meets or continues to meet the standard for registration under FIFRA. Registration standards require continuous review of existing pesticides to ensure they will not cause harm to human health or the environment.
Pentachlorophenol, or Penta, is a wood preservative that is classified as a restricted use pesticide (RUP). RUPs may only be sold to and used by certified applicators. Penta has been found to present health risks to occupational handlers, which prompted EPA’s proposal to cancel registration and phase-out use of the product across the wood treating industry.
The proposed ID indicates that EPA anticipates a phase-out period of five years. The agency plans to submit a request for voluntary cancellation in March 2023. Penta users will then have three years to use existing stocks and transition to alternative preservation methods. This phase-out period is intended to provide stability to the utility pole market. EPA is currently accepting comments on the proposed phase-out process, and key industry groups have begun to submit their questions and concerns. While stakeholders may understand the potential human health risks associated with Penta use and be willing to work with EPA through the transition, many are uncertain that EPA has considered all the industry implications. Some of their concerns include:
Short Timeline for Use of Existing Stocks
Wood treating facilities typically stock large volumes of Penta product on-site in block or liquid concentrate form as well as diluted liquid form. Additionally, the utility market can be expected to quickly transition away from using Penta-treated poles in an effort to get ahead of the impending market changes. The combination of these factors may lead to a situation where demand is low and existing stocks of Penta remain high. Therefore, it is unclear whether 5 years is enough time to exhaust existing stocks.
Unrealistic Decontamination Standards
F032 is the Resource Conservation and Recovery Act (RCRA) hazardous waste code for wastes generated from wood preserving processes that currently use or have previously used chlorophenolic formulations, including Penta. After transitioning to new preservation methods, wood treating facilities will want to remove this waste code from their hazardous waste profiles. According to 40 CFR 261.35, facilities that want to delete the F032 waste code must either replace all process equipment or decontaminate any process equipment that may have contacted Penta to below 0.01 parts per trillion of dioxins and dibenzofurans. The replacement of all equipment is not a financially viable option for most treating plants. Furthermore, industry professionals have raised concerns that the decontamination standard is unobtainable because dioxins and dibenzofurans are pervasive. Sites that have never used Penta have detected these chemicals in higher concentrations than what the standard allows. Facilities will need a practical way to manage their hazardous wastes under other waste codes. Thus, EPA may need to develop alternative decontamination requirements.
Legality of Sale and Shipment of Partial Stocks
Wood treating equipment typically requires a minimum volume (upwards of 20,000 gallons) of treating solution. This volume of solution is therefore leftover in the equipment following the treating process. For any facility that switches to an alternative treating solution, the leftover Penta solution would need to be pumped out of the machinery and either disposed of or used at another facility that is still treating with Penta. This may create a need for Penta solutions to be sold and transported between wood treating plants. Because these solutions are diluted (the dilution process occurs when they are added to the equipment at the original facility), they do not conform to any FIFRA chemical description. The industry would therefore need clarification on how to sell and ship these solutions while remaining in compliance with associated EPA and Department of Transportation (DOT) regulations. In addition, it may prove difficult for treating plants to find buyers of their excess stock when the industry is working to transition away from Penta use altogether.
Clarification on Closure Requirements and the Treated Article Exemption
EPA has been unclear on certain requirements that are likely to affect the Penta phase-out process. First, facilities that switch to alternative wood preservatives that do not generate hazardous waste will be subject to modified hazardous waste requirements under RCRA. Under, 40 CFR 262.17(a)(8)(iii), generators of hazardous waste are allowed to defer closure of drip pads until facility closure. However, it is unclear whether this rule applies specifically to facilities that formerly used Penta. Industry stakeholders have expressed a need for clarification on this regulation. Second, it is unclear whether the proposed Penta registration cancellation will apply to the sale and installation of poles treated with Penta. Currently, a pole treated with Penta meets the definition of a treated article and is not subject to FIFRA regulations. Poles treated with Penta are often stored for long periods of time before sale or installation and are expected to last up to 70 years once in service. Therefore, the industry will need confirmation that Penta-treated poles are exempt from the registration cancellation in order to ensure that the change does not affect the sale and installation of Penta-treated poles after the phase-out period.
Despite concerns, industry stakeholders have been in the know about the proposed Penta phase-out for several years and are, in many ways, well positioned for the transition. Some businesses have begun to manufacture alternative preservation chemicals such as copper naphthenate. Yet, the ease of the proposed transition will depend heavily upon continued cooperation and understanding between EPA and industry experts with in-depth knowledge of the manufacturing and market intricacies.
To review the full ID and submit comments, visit https://www.regulations.gov/document/EPA-HQ-OPP-2015-0349-0015. Comments must be received on or before May 4, 2021.
For more information on how EHS Support can help translate environmental challenges into business solutions for your organization, contact Monica Meyer.
References / Notes
Comments on Proposed Interim Registration Review Decision for Pentachlorophenol (Docket ID No. EPA-HQ-OPP-2014-0653), Treated Wood Council, April 22, 2021
Pentachlorophenol Proposed Interim Registration Review Decision, Case Number 2505, December 2020
Pentachlorophenol is on its way out as a utility pole preservative. Here’s what might take its place. Chemical & Engineering News, April 12, 2021
Penta’s Foggy Future for Industrial Wood Treaters, Building Products Digest/526 Media Group, May 6, 2020