WASHINGTON (CN) - A new Army Corps of Engineers rule banning many types of treated wood from boats and pilings in the wetlands and waters of Oregon and Alaska threatens the treated wood industry, five trade groups claim in Federal Court.
The Western Wood Preservers Institute, the Treated Wood Council, the Railway Tie Association, the Southern Pressure Treaters' Association and the Creosote Council sued Army Secretary John McHugh, Acting Secretary of Commerce Rebecca Blank and the U.S. Army Corps of Engineers, claiming 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 complaint states. "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 says.
In March, the Pacific Ocean Division of the Corps of Engineers adopted 5-year general permits (NWPs) for the "discharge of dredged or fill materials into the navigable waters of the United States," the complaint states.
Included in the permitting process are two separate, regional conditions restricting treated wood in Alaska and Oregon.
Specifically, the NWPs ban 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.
"USACE [the U.S. Army Corps of Engineers] in Oregon now bans treated wood from new recreational boat docks and maintenance, repair or replacement of all existing in-water or over-water structures even though treated wood has traditionally been the most common building material for these structures," the complaint states. "Any proposed use of treated wood for these structures would require USACE to initiate and complete a separate ESA consultation, an expensive and uncertain process requiring many months or years at best. The NMFS SLOPES IV Biological Opinion [the new regulation] effectively bars treated wood from the market in Oregon for new recreational boat docks and maintenance, repair or replacement of all existing in-water or over-water structures."
The industry says the story is the same in Alaska, where the NWPs were adopted without giving the public "the legally required opportunity to participate in the rulemaking through submission of written data, views, or arguments."
The industry wants the court to vacate the rule as arbitrary and capricious.
The plaintiffs are represented by Mark Rutzick of Oak Hill, Va.
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