(Delivered electronically via e-mail: lesser.ben@epa.gov) 

 September 22, 2009 

Mr. Ben Lesser 

US Environmental Protection Agency 

Office of Resource Conservation and Recovery 

Mail Code 5302P 

1200 Pennsylvania Avenue, NW 

Washington, DC 20460 

 Re: Docket ID No. EPA-HQ-SFUND-2009-0265 

 Identification of Priority Classes of Facilities for Development of CERCLA 

Section 108 (b) Financial Responsibility Requirements, 74 Fed. Reg. 37213 

(July 28, 2009) 

Dear Mr. Lesser: 

The Treated Wood Council (TWC) is pleased to submit these comments in 

response to the U.S. Environmental Protection Agency’s July 28, 2009 Federal Register notice 

regarding the Identification of Priority Classes of Facilities for Development of CERCLA 

Section 108(b) Financial Responsibility Requirements (Docket ID No. EPA-HQ-SFUND-2009-

0265). We thank you for your presentation at the Small Business Administration 

Environmental Roundtable Meeting on September 11th, and please extend our appreciation to 

Jim Berlow, Elaine Eby, Barbara Foster and Dale Ruhter for meeting with us on Aug. 27th. 

TWC is an international trade association serving the treated wood industry with 

more than 400 member organizations, including 191 companies that treat various wood products 

with EPA-registered wood preservatives. 

1111 19th Street, NW 

Suite 800 

Washington, DC 20036 

Phone: (202) 463-2045 

Fax: (202) 463-2059 
Mr. Ben Lesser 

September 22, 2009 

Page 2 of 6 

The purpose of the notice is to identify classes of facilities for which financial 

responsibility requirements will be first developed. The notice adds that the Agency will 

examine a number of classes of facilities, including wood treatment facilities, to see whether 

financial responsibility requirements under CERCLA Section 108(b) would be appropriate. 

TWC’s comments explain why it is unnecessary and inappropriate to identify wood treatment 

facilities as a priority class for the development of financial assurance requirements, based on 

Section 108(b)’s risk criteria and the analysis and factors set forth in the Agency’s notice. These 

comments provide information about the current scope of environmental regulation of this 

sector, its small and declining Toxics Release Inventory (TRI) releases, and the low risk it 

represents under CERCLA Section 108(b). 

The Modern Wood Treatment Industry 

Today’s wood preserving industry is very different from its historical counterpart 

of 25 or 30 years ago. Comprehensive environmental regulatory regimes, discussed further 

below, have transformed the industry, and since the late 1970s, it has shrunk by one third to 

roughly 400 facilities today. Facilities operating today are subject to thorough, strict 

requirements governing ongoing operations as well as plant closure and post-closure phases. 

Even though current TRI information may include data from the remediation of legacy issues 

being managed under RCRA at operating facilities, the wood preservation industry’s TRI 

releases are low both in overall terms (less than 0.017% of total TRI releases) and on a toxicityweighted basis (approximately 0.0085% of total TRI releases), and they are trending downward. 

Further underscoring the lack of need for a financial assurance requirement for this sector, no 

wood preserving facility has been added to the National Priority List (NPL) since the industry 
Mr. Ben Lesser 

September 22, 2009 

Page 3 of 6 

came into compliance with the new regulatory regime. The industry is composed mostly of 

small businesses located in rural areas in the southeast and northwest. The industry average for 

an operating facility is 35 employees, with approximately 40 percent of the facilities having less 

than 20 employees. 

Section 108(b) Bases the Need for Financial Requirements on Risk 

CERCLA section 108(b) identifies two kinds of risks in determining whether the 

imposition of financial assurance requirements is warranted. Subsection 108(b)(1) focuses on 

the risk of injury “associated with the production, transportation, treatment, storage, or disposal 

of hazardous substances.” Subsection 108(b)(2) speaks in terms of risk relating to the ability to 

pay for cleanups that are likely to become necessary. Section 108(b) is forward looking, seeking 

to assess the likelihood that mandatory financial assurance mechanism will be needed to ensure 

that future cleanups are responsibly handled. Analyzing the statutory language and the Agency’s 

suggested factors with respect to the wood treatment industry, the risk level is very low. 

The Amounts of Hazardous Substances Released to the Environment are Small and 

Declining 

Using the Agency’s preferred metric, TRI releases, the attached tables illustrate 

clearly that the wood preservation industry’s releases of hazardous substances are low, both as a 

share of total releases -- less than one-tenth of 1% -- and on a toxicity-weighted basis -- less than 

one hundredth of 1% (see Attachment: TRI 2007 Weighted Toxicity Data for Financial 

Assurance 9 22 09). Looking beyond these low numbers, trend data shows a decline over time 

(see Attachment: TRI 2001-7 Wood Preserving Trend Data for Financial Assurance 9 22 09), 

further indicating a minimal level of risk. 
Mr. Ben Lesser 

September 22, 2009 

Page 4 of 6 

Changes to the Industry – Particularly the Growth of Comprehensive Regulations – Have 

Reduced Risk to a Very Low Level 

Since the 1970s, major changes have transformed the wood preservation industry. 

As part of a regulatory overhaul, the industry eliminated surface impoundments, reduced the 

quantity and duration of onsite storage, became subject to strict drip pad regulations, and 

complied with CERCLA and RCRA requirements for closed facilities, and RCRA corrective 

action for prior releases at currently operating plants. These changes have resulted in a much 

smaller, tightly regulated industry. The following requirements are now in place: 

• RCRA Hazardous Waste Listings (40 CFR Part 261), which in 1990 listed 

all process residuals from the use of the three dominant wood 

preservatives as hazardous waste, ensuring their environmentally sound 

management and disposal. 

• RCRA Subpart W (40 CFR Part 265, Subpart W), which imposes specific 

technical requirements on the use of drip pads, including design, 

operation, clean up, closure, record-keeping, certifications, and 

inspections. Subpart W also specifies response actions to infrequent and 

incidental drippage in storage yards. 

• RCRA Subpart G, which governs closure and post-closure efforts that fall 

outside Subpart W; it includes a financial assurance mechanism (FAM). 

• RCRA Subpart J, which mandates standards for design, operation and 

maintenance, and closure of tanks and also covers equipment 

contaminated with hazardous materials. 

• RCRA FAM requirements for post-closure and corrective action, under 

Subparts G and J, which include corrective action for releases that 

occurred prior to the imposition of the current stringent regulatory 

requirements. 

• Clean Water Act NPDES programs, which set requirements under that 

statute; each facility has either a NPDES or stormwater permit. 

• Clean Air Act; two years ago the wood preserving industry completed an 

area source MACT proceeding. 
Mr. Ben Lesser 

September 22, 2009 

Page 5 of 6 

• FIFRA labeling requirements; re-registration of the major pesticide agents 

was completed within the last two years. 

RCRA and CERCLA Already Address Historic Operations

RCRA corrective action and post-closure requirements, including FAMs, ensure 

cleanup of currently operating plants with historic contamination. Current operating practices 

require compliance with the RCRA regulations noted above, to prevent future contamination. 

CERCLA consent decrees and orders that cover closed plants provide FAMs as part of cleanup 

obligations. 

Toxicity Concerns are Decreasing

While the statute requires consideration of risk, not mere toxicity, the treatment 

chemicals used in wood preserving have grown steadily less toxic. Under current operations, 

approximately 70% of the volume of wood treated today is treated with water-based 

preservatives. In 2003, the industry voluntarily agreed to withdraw the pesticide registration for 

chromate copper arsenate (CCA) for residential uses, which has further lowered toxic releases. 

Other Factors Also Reflect Low Risk

Other factors suggested in the Agency’s notice also indicate low risk for the wood 

treatment sector. The existence and proximity of potential receptors is limited, as most of these 

facilities are small and in less populated areas of the country. Projected future costs of federal 

cleanup programs are low for this industry sector, given the high degree of protections in place 

for wood treatment operations. 
Mr. Ben Lesser 

September 22, 2009 

Page 6 of 6 

Conclusion

CERCLA section 108(b) is forward looking in examining the need for financial 

responsibility requirements. On all key indices, the wood treatment sector is low-risk. Its 

facilities are subject to comprehensive, stringent regulation, its releases are small and declining, 

and no facilities have been added to the NPL since the new era of regulations came into effect. 

On the basis of the statutory language and the factors the Agency has put forward, the wood 

treatment sector should not be identified as a priority class for development of CERCLA section 

108(b) requirements. 

Again, the Treated Wood Council appreciates the opportunity to submit these 

comments to the Environmental Protection Agency. We are available to meet and discuss these 

issues with you at any time. Please contact me if you have any questions. 

 Respectfully, 

 Jeffrey T. Miller 

 President & Executive Director