Judge Tosses Challenge |to Treated Wood Rules

WASHINGTON (CN) - A federal judge dismissed a complaint filed by treated wood-manufacturers challenging new permit provisions that bar the use of treated wood in the waters of Oregon and Alaska.

The Western Wood Preservers Institute, the Treated Wood Council the Railway Tie Association, the Southern Pressure Treaters' Association and the Creosote Council sued federal regulators over the new provisions, known as "regional conditions," that would ban the use of wood treated with creosote and pentachlorophenal from certain waters.

The named defendants in the lawsuit were Army Secretary John McHugh, Acting Secretary of Commerce Rebecca Blank and the U.S. Army Corps of Engineers.

At issue were several Standard Local Operating Procedures for Endangered Species (SLOPES) adopted in 2011 that address construction or maintenance of certain in-water and over-water structures in Oregon and Alaska. Under SLOPES IV, treated wood can't be used as part of such a structure, but the measure isn't a total ban on the products.

"If, however, a proposed project did not comply with the design criteria in the SLOPES IV procedures, that would not prevent the issuance of a permit for the project, the Corps would simply need to request additional consultation from the (National Marine Fisheries Service)," U.S. District Judge Ellen Huvelle explained in her opinion.

The treated wood industry challenged the guidelines under the Administrative Procedure Act, claiming that the Corps of Engineers adopted the rule without notifying the public or accepting comment.

"Treated wood is manufactured by pressure injection of a chemical preservative into raw wood, a process which can significantly increase the useful life of many common species of wood," the groups said in their 2012 complaint. "Treated wood that is properly manufactured and installed can resist damage from termites and decay fungi for decades longer than untreated wood."

An array of chemicals is used to treat wood, including alkaline copper quaternary, ammoniacal copper zinc arsenate, and pentachlorophenol, the manufacturers said.

The 5-year general permits (NWPs) adopted by the Pacific Ocean Division of the Corps of Engineers bans wood treated with pentachlorophenol preservative in fresh and marine waters, creosote in fresh waters, and require site-specific assessments before pilings containing creosote or copper-related wood products can be installed.

The manufacturers say landowners and boaters have to use alternative products to take advantage of the NWPs, which will slash sales of treated wood for producers, distributors and resellers.

But, as Judge Huvelle noted, these manufacturers aren't located in Oregon or Alaska -- the plaintiffs are from Washington State, the District of Columbia, Georgia, Louisiana and Pennsylvania -- and "have not shown that they would suffer any possible environmental harm in a 'personal and individual way.'"

The judge added, "The Supreme Court has expressly noted that 'a mere "interest in a problem," no matter how longstanding the interest and no matter how qualified the organization is in evaluating the problem, is not sufficient by itself to render the organization "adversely affected" or "aggrieved" within the meaning of the APA.' Thus, absent some showing of an environmental injury to plaintiffs themselves, plaintiffs have not established that they have suffered an injury-in-fact resulting from the potential environmental impact of the challenged regulations."

Noting that the treated wood makers failed to prove they had standing to sue or that they could cite an injury, Huvelle dismissed the action for failure to state a claim.

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