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NY Times - The Poison is Arsenic, and the Suspect Wood

  • Subject: [cg] NY Times - The Poison is Arsenic, and the Suspect Wood
  • From: "Honigman, Adam" <Adam.Honigman@Bowne.com>
  • Date: Thu, 27 Jun 2002 14:02:42 -0400


In case you had any doubts on the problematic nature of  C.C.A. treated wood
( a no-no for folks who want to create raised beds using this material),
here is an article that appeared in yesterday's New York Times, the
newspaper of record in my part of the woods.

Best wishes,
Adam Honigman
Clinton Community Garden

The Poison Is Arsenic, and the Suspect Wood

June 26, 2002

HERNANDO, Miss., June 19 - It took six hospitalizations and
a number of misdiagnoses before Lynn Milam learned what was
causing the vomiting and diarrhea that almost killed her in
1999. The arsenic levels in her body, her doctor said, were
about 100 times what they should have been. 

Ms. Milam was relieved to have a diagnosis, however
terrifying. That relief vanished when the police arrived.
"They said someone was trying to kill me, and they were
almost 100 percent sure it was Tom," her husband, Ms. Milam

But she refused to believe it. "I know the man," she said.
"If he were going to kill me, he'd just shoot me." 

Ms. Milam's instincts were borne out when laboratory tests
conducted by the F.B.I. showed that her husband had even
more arsenic in his system than she had in hers. 

The results helped take the wind out of the criminal
investigation, but the case has not gone away. It has since
evolved into a consumer lawsuit focused on the last
remaining suspect in the poisoning of the Milams: the
A-frame cabin they had been building in this small town
some 20 miles south of Memphis. 

Vicki S. Wood, one of the Milams' lawyers, said the couple
were victims of chromated copper arsenate, or C.C.A., the
predominant wood preservative in the United States and the
subject of an emerging body of product liability lawsuits
around the country. Some of the lumber for the Milams'
two-story cabin frame had been treated with C.C.A., which
prevents decay and repels termites. It also contains

Arsenic, a chemical that occurs naturally in the
environment in small amounts, is a fatal poison at high
doses and a known carcinogen at lower ones. 

C.C.A.-treated wood, a $4 billion industry, is a popular
choice for decks, picnic tables and playground sets that
must stand up to warm, wet weather. The wood has a
distinctive pale green color and is sold in home
improvement stores nationwide. 

There is substantial evidence that C.C.A.-treated lumber
leaches arsenic over time. Whether that is cause for
concern is in dispute, as is the safety of playgrounds
built with C.C.A.-treated wood. 

"C.C.A.-treated wood is practically everywhere," said Hugh
McNeely, a Louisiana lawyer who represents plaintiffs in a
class-action lawsuit against sellers and manufacturers of
the wood. "The potential for widespread personal injury or
potential latent manifestation of arsenic- and
chromium-related health problems is profound." 

The industry disputes that. A report commissioned by two
manufacturers and prepared by Barbara Beck, a toxicologist
with the Gradient Corporation, environmental consultants,
concluded that "use of C.C.A.-treated wood in both a
residential and a playground setting does not pose a
significant health risk to children or adults." 

In an interview, Dr. Beck said the risks associated with
incidental exposure to C.C.A.-treated wood and the soil
beneath it were lower than those associated with arsenic in
food or allowed under the new federal limits for arsenic in
drinking water. 

Philip J. Landrigan, a professor at the Mount Sinai School
of Medicine in Manhattan, said the dangers from incidental
exposure were a matter of perspective. "All cancer risks
are dose-related," he said, "but since this is not an
essential product for life in the modern world, we should
find a way to live without it." 

While there is debate about incidental exposure, there is
agreement that working with the wood can be dangerous. The
Environmental Protection Agency and manufacturers of
treated wood advise consumers not to use wood with surface
residue; to wear gloves, a dust mask and goggles while
sawing; to saw outdoors; and never to burn the wood. 

The Milams did everything wrong. 

"I was holding each log
while Tom cut the end of it," Ms. Milam said. "I was
wearing shorts and no gloves." 

They worked indoors, and they burned some of the wood.

Jeffery Artis, a spokesman for the F.B.I., comes close to
asserting cause and effect. "We have not made a
determination that the arsenic in their bodies came from
the treated wood," Mr. Artis said, "but we know that at the
time the arsenic levels were very high, they were working
with the sawdust." 

The Milams have sued several manufacturers and retailers,
all of which deny responsibility for the poisoning, and the
American Wood Preservers Institute, a trade group. 

Its president, Parker Brugge, declined to comment on the
lawsuit. As a general matter, he said, "the wood is safe
when it's used according to the consumer safety sheet" put
together by the industry. 

The Milams say they never received such information.
Experts say this is common. 

"You see people go into a lumberyard and ask for wood to
build a deck," Professor Landrigan said, "and there is no
sign or other warning about these dangers." 

Mel Pine, a spokesman for the trade association, said that
the industry had fulfilled its obligation to inform the
public about the dangers of treated wood but that until
recently, "at the retail stores the compliance was less
than perfect." 

That is improving, he said. An audit of 250 major retailers
in March, he said, showed that about 80 percent tagged the
wood with a condensed version of the safety sheet. 

The industry and the Environmental Protection Agency have
announced that sales of C.C.A.-treated wood for residential
uses will be phased out by the end of next year. Mr. Brugge
said the decision was based on "changes in perception,
changes in the marketplace" and a new generation of
preservatives without arsenic. 

Mr. McNeely, the lawyer in one class action, sees it
differently. "It's a rear-guard action," he said. "They're
trying to defend themselves as they're retreating." 

In announcing the phaseout, the E.P.A. said that it "does
not believe there is any reason to remove or replace
C.C.A.-treated structures, including decks or playground
equipment." At the same time, the statement continued, "any
reduction in the levels of potential exposure to arsenic is

In addition to the case being pursued by Mr. McNeely in
Louisiana, another class-action suit has been filed in
Florida. Both suits, which are in their early stages, are
aimed primarily at the property and environmental damage,
as opposed to any personal injury, that is attributed to
the treated wood. 

Litigation experts say the success of those suits and the
potential for liability will turn on scientific evidence
that neither side yet has. "Before a toxin becomes a
litigation concern, there has to be some science, and in
this case this issue is so immature that we really don't
know if the plaintiffs are going to overcome that," said
Bill G. Lowe, who edits Emerging Toxic Torts, a newsletter.

In addition to the class actions, about 30 individual
lawsuits have been filed nationwide involving claims of
acute poisoning from sawdust, splinters and inhalation,
said David S. McCrea, an Indiana lawyer who has handled
some of the suits. He said that a handful of such cases had
been tried before juries and that the plaintiffs had
prevailed in all of them. Other suits have been settled,
and some have been dismissed before trial on
statute-of-limitations grounds or because the plaintiffs
could not make even a preliminary case that their injuries
were caused by the defendants' products. 

Mr. McCrea said that only a small percentage of
treated-wood injuries resulted in lawsuits, mostly because
arsenic poisoning is so difficult to identify or, where it
is identified, because its cause is rarely determined. He
said the Milams' experience illustrated both difficulties. 

The police here worked the case hard. They questioned the
Milams repeatedly and always separately. They advised Ms.
Milam, a 50-year-old computer programmer, to leave her
husband, 46, or at least prepare her own food. They sought
help from the F.B.I., and the district attorney went to a
grand jury to have it consider a charge of attempted

"I felt like the Hernando Police Department came into it
predetermined like it was attempted murder, and they had a
pretty good little case," Ms. Milam said. "It was really
big for them." 

Mr. Artis, the F.B.I. spokesman, said the case was dubious
from the start, because it lacked a motive. "She was the
breadwinner," he said. "There's no big insurance policy.
There's no girlfriend." 

District Attorney John W. Champion sounded defensive about
having presented an attempted-murder charge to the grand
jury even after the F.B.I. tests cleared Mr. Milam. He
recalled being convinced by an F.B.I. analysis implicating
the treated wood. On the other hand, a member of his staff
had consulted the industry. "One of my investigators kept
telling me that lumber companies had told him that this
couldn't be," he said, meaning that the F.B.I. was wrong. 

Mr. Champion said he had presented both theories to the
grand jurors. "I point-blank told them I believed the
F.B.I.," he said. 

The grand jury declined to indict Mr.


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