Loss for Treated-Wood Industry in Water Fight
WASHINGTON (CN) - The treated-wood industry has a shoddy case at best over new permit rules that ban the introduction of treated wood in certain waters, a federal judge ruled.
At issue are the regional permit conditions that the Army Corps of Engineers sets for those who would discharge dredged or fill materials into navigable waters.
Specifically, the conditions prohibit nationwide permittees from using "wood products treated with biologically harmful leachable chemical components," including various wood preservatives "to come in contact with waters or wetlands" in certain waters in Oregon and Alaska.
The Treated Wood Council and several treated-wood producers - Permapost Products, J.H. Baxter & Co., and Conrad Forest Products among them - brought their latest challenge to the permit conditions after an initial attempt failed for lack of standing.
U.S. District Judge Ellen Huvelle tossed most of the current claims for similar reasons last week.
She said the industry failed to argue how it would be injured, instead focusing on how its clients will be injured by having to pay more and wait longer for treated wood products or using alternative products.
"The company-plaintiffs allege that they will lose money because 'no economically-rational builder will seek to use treated wood on a project when the alternatives can be employed so much faster and cheaper,' and they bemoan the regulatory irregularity present when treated wood projects are subject to nationwide permitting in some states ... but not others," Huvelle wrote. "However, at no point in their complaint do plaintiffs allege that treated wood is equally or less environmentally harmful than the alternative products their customers will now use."
Huvelle did, however, preserve the industry's claim under the Endangered Species Act claim, finding that the Commerce Department may not have appropriately consulted with federal and local agencies in adopting the permit conditions.
Among chemicals used to treat wood are alkaline copper quaternary, ammoniacal copper zinc arsenate and pentachlorophenol, according to the complaint.
They claimed that landowners and boaters will have to use alternative products, slashing treated wood sales for producers, distributors and resellers.