Law Offices of
Walter G. Talarek, P.C.
1008 Riva Ridge Drive
Great Falls, Virginia 22066-1620
Phone: (703) 759-4837
Fax: (703) 759-5548
e-mail: envlaw@bonzai.net

March 31, 2000

Regulatory Status of Copper Naphthenate Used as a Wood Preservative

I.        Federal Insecticide, Fungicide, and Rodenticide Act (ñFIFRAî)

A.     EPA-registered, non-restricted use wood preservatives. EPA regulations and product labels do not require applicators of copper naphthenate wood preservatives to be certified. (However, some states may require applicator certification for copper naphthenate for the wood-preservative use pattern.) Copper naphthenate wood preservatives are not restricted-use pesticides under 40 CFR section 152.170 because:

1.       They are not Toxicity Category I acute toxicants;

2.       They do not cause significant subchronic, chronic or delayed toxic effects; and

3.       They do not pose a serious hazard to man or the environment.

B.      Registrants of copper naphthenate wood preservatives are supporting their reregistration.

1.       Registrants have submitted Phases 2, 3 and 4 reregistration responses to EPA.

2.       Registrants have submitted toxicity, ecotoxicity, and environmental fate data in response to data call-ins issued by EPA on 1/12/89, 11/18/93 and 5/27/94.

3.       EPA will issue a Reregistration Eligibility Document (ñREDî) on the naphthenate    salts sometime within the next few years; and, registrants will respond by developing and submitting additional data and amending their productsÍ labels (Phase 5, which is the last reregistration phase).

C.      Copper naphthenate wood preservatives are not the subject of an EPA special review under 40 CFR section 154.7, nor will they be in the future, because:

1.       They do not  pose a risk of serious acute  injury to humans or  domestic animals; and

2.       They do not pose a significant risk of inducing oncogenic, heritable genetic, teratogenic, fetotoxic or reproductive effects in humans.

II.      Resource Conservation and Recovery Act (ñRCRAî)

A.     Copper naphthenate wood preservation wastes are not federal hazardous wastes.

1.       Copper naphthenate wood preservation wastes are neither listed (from specific or non-specific sources) nor characteristic hazardous wastes. See 40 CFR Part 261.

2.       EPAÍs 12/6/90 wood preservative wastes listings rule does not apply.

3.       Copper and copper naphthenate are not regulated under the Toxicity Characteristic (ñTCî) and are not Appendix VIII constituents of concern.

B.      USEPA has no plans to list or characterize copper naphthenate wood treating wastes as hazardous wastes.

C.      Some states, such as California, have TC-type regulations which list copper as a regulated contaminant; and, wastes containing copper above certain specified levels would be considered hazardous wastes.

III.    Clean Air Act (ñCAAî)

A.     EPA does not regulate air emissions of copper and copper naphthenate from wood preserving plants.

B.      Copper and copper naphthenate are not listed as hazardous air pollutants under the 1990 CAA Amendments. Moreover, EPA has no plans to regulate these emissions.

C.      Copper and copper naphthenate are not on EPAÍs list of regulated toxic substances for accidental release prevention, at 40 CFR section 68.130.

IV.    Occupational Safety and Health Act (ñOSHAî)

A.     Copper is listed as an air contaminant in Table Z-1 of 29 CFR section 1910.1000. The OSHA-promulgated exposure limits for copper in the workplace are 0.1 mg/m³ as a fume (as Cu) and 1.0 mg/m³ as a dust or mist (as Cu).

B.      Copper naphthenate is a hazardous chemical to which OSHAÍs hazard communication standard applies. See 29 CFR section  1910.1200. Requirements for material safety data sheets (ñMSDSî), labeling and training apply.

V.      Clean Water Act (ñCWAî)

A.     Copper (but not copper naphthenate) is a priority pollutant for which effluent limitations and pretreatment standards have been prescribed for wood treatment plants. See 40 CFR Part 423 Appendix A. (These limitations and standards were based on the use of creosote, pentachlorophenol, ACA and CCA at wood treating plants, however.) The limitations and standards are listed in wood treatment plantsÍ National Pollutant Discharge Elimination System (ñNPDESî) permits, including storm-water, permits.

B.      Copper and copper naphthenate are not listed as hazardous substances at 40 CFR section 116.4 and, therefore, spills of these chemicals do not have to be reported.

C.      Copper and copper compounds are listed as toxic pollutants. See 40 CFR section 401.15.

VI.    Safe Drinking Water Act (ñSDWAî)

A.     A maximum contaminant level goal of 1.3 mg/l has been prescribed. See 40 CFR section 141.51. However, no numerical primary maximum contaminant level has been promulgated.

B.      A secondary maximum contaminant level (protects drinking water quality) of 1mg/l has been prescribed. See 40 CFR section 143.3.

VII.  Comprehensive Environmental Reporting, Compensation and Liability Act (ñCERCLAî or
ñSuperfundî)

Copper and copper compounds are hazardous substances under 40 CFR section 302.4, but no reportable quantity has been assigned. Releases must be cleaned up; however, releases do not have to be reported to the National Response Center (ñNRCî).

VII.  Emergency Planning and Community Right-to-Know Act (ñEPCRAî)

A.     Copper is a toxic chemical for which release reporting (Form R) requirements apply. See 40 CFR section 372.65(a).

B.      Copper and copper naphthenate are not extremely hazardous substances for which emergency planning and release notification requirements apply. See 40 CFR Part 355, Appendix A.

C.      Copper naphthenate is a hazardous chemical (based on OSHA hazard communication standard criteria) for which material safety data sheet and inventory reporting requirements  (Tier I and Tier II) apply.

CONCLUSION: Copper naphthenate is an EPA-registered, non-restricted use, relatively non-toxic, wood preservative.  From a regulatory standpoint, copper naphthenate is an attractive wood preservative because EPA imposes minimal requirements on wood preservers who use it.  Furthermore, when compared to each restricted-use wood preservative, copper naphthenate enjoys some if not all of the following advantages:

                           I.      EPA does not require applicators of copper naphthenate wood preservatives to be certified;

                         II.      EPA does not regulate copper naphthenate wood preservative wastes as hazardous wastes;

                       III.      EPA does not regulate copper naphthenate emissions from wood-treating plants as hazardous air pollutants;

                       IV.      Copper naphthenate is not a regulated toxic substance to which CAA accidental release    prevention requirements apply;

                         V.      Copper naphthenate is neither a CWA nor a CERCLA hazardous substance for which spills  have to be reported; and

                       VI.      Copper naphthenate is not an EPCRA extremely hazardous substance for which emergency release notification requirements apply.