Note! Information in this article may be dated. To search recent bulletin articles click here.

Disclosure Not Required For Presence Of Pressure-Treated Lumber on Property

By Miriam J. Baer, Assistant Director, Legal Services

In February of this year, the EPA announced that the use of most pressure-treated lumber will be phased out of residential use.  Why? It contains chromated copper arsenate (“CCA”), an arsenic-based pesticide.  Studies have found that regular contact with CCA-treated lumber can result in high arsenic exposure, especially in children.

According to the federal Office of Pesticide Programs, “EPA has not concluded that CCA-treated wood poses any unreasonable risk to the public or the environment.  Nevertheless, arsenic is a known human carcinogen and, thus, the Agency believes that any reduction in the levels of potential exposure to arsenic is desirable.”

Historically, CCA-treated lumber has had wide-ranging uses, including:

• Decks

• Picnic tables

• Landscaping timbers

• Gazebos

• Fences

• Boardwalks

• Play structures

However, as a result of an agreement between the EPA and the pressure-treated lumber industry, after December 2003, CCA will not be used to treat wood intended for these purposes.

Does this mean that residential owners should tear down existing structures made of pressure-treated lumber, such as decks, play sets or fences?  According  to Stephen Johnson, the EPA’s chief of pesticide regulation (as quoted in the February 13, 2002 edition of USA Today), “we don’t believe there’s any reason to remove or replace existing structures…or to disturb surrounding soils.”  Rather, the EPA suggests the following steps to reduce potential exposure to CCA.

• Do wash hands thoroughly after contact with the wood, especially prior to eating and drinking;

• Do clean up all sawdust and construction debris after construction;

• Do coat pressure-treated wood regularly with a penetrating coating such as oil-based semi-transparent stains.

• Don’t burn treated wood;

• Don’t bring food into direct contact with the wood;

• Don’t use mulch made of pressure-treated lumber, especially in vegetable gardens.

At a recent meeting, the Real Estate Commission considered whether the presence of CCA-treated lumber on a property should be considered a material fact which licensees must disclose to prospective buyers and/or tenants.  In light of the fact that the federal government has not concluded that CCA-treated wood poses any unreasonable risk to the public, the Commission concluded that disclosure is not required at this time.

This article came from the June 2002-Vol33-1 edition of the bulletin.