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Question of the Week © 2017 Mike McGrath

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Old Railroad Tie Redux; Just Don't Use Them

Q. In the article in your "A to Z archives" concerning the use of old railroad ties for landscaping you say incorrectly that this practice is "illegal". Even your own EPA link on the subject states that the agency does not "approve" creosote wood for home or landscape use. That means they don't recommend it. It is only illegal to use creosote based pesticides, according to the link. State and local restrictions may apply, but to the best of my knowledge it has never been illegal here in Georgia. Please correct your mistake for your readers and listeners.

--- George in Americus, Georgia

A."Mistake?" Sounds more like semantics—or at best, a difference of opinion on some legal wording. And c'mon—is one little email enough to have us bring this topic up again?

No; because George is only one of many. We have gotten a flurry of emails recently asking me to {quote} "correct my mistake" about old railroad ties being illegal for home use. It may be a coincidence, but in previous years we've gotten zero to few emails on the overall topic, and now we get a sudden flurry (so many that I stop reading when I see that they're the same genre), the wordings are strangely similar, and they all ask (or tell) me to correct my 'mistake'. Like this one:

"Thanks for the article on railroad ties in your "A to Z archives". But unless I'm mistaken, the term 'illegal' is a stretch. To my understanding 'no approved use' does not mean something is unlawful. Occasionally I'm called upon to write a blog post and it pains me when I'm less than accurate. If you don't suffer from this affliction...well, thank you again and have a nice day :)"

---- Anthony, 'just north of Seattle'

Now, "That's a bit rude" was my first thought. But things changed after Anthony received my response, which simply said: "Actually, the use of any pesticide product—which these timbers are—outside of their labeled and permitted use is a violation of Federal law." And because I was a little miffed, I added that I didn't see the point of mincing words in a way that might lead some people to believe that these giant sticks of cancer are safe to use. His response reminded me that it's really easy to read—or misread—feelings and intent into an email.

…because Anthony wrote back: "Thanks for your response. I subsequently found a discussion on a legal board where the statute in question is referenced and quoted as "EPA considers such uses of creosote-treated wood to be illegal under FIFRA 12(a)(2)(G)."

Thank you Anthony! Now, to explain that citation. FIFRA stands for the "Federal Insecticide, Fungicide and Rodenticide Act." (Rodenticide as in 'rat poison'. And while we're on the subject of 'things you should not use' let's include these. Because if you do manage to poison a rat or a mouse and it goes outside to die, you could wind up collaterally killing an owl, fox, raptor or other predator that would otherwise have consumed hundreds—maybe thousands—of such vermin. And if it crawls inside your walls to take its last breath (as dying vermin are wont to do), you will be reminded of your folly in an unforgettable olfactory manner for many weeks—perhaps months—to come. Yuck and double yuck.)

Anyway, FIFRA—in conjunction with the EPA—dictates specifically when and how you're allowed to use insecticides, fungicides and rodenticides; what's technically called 'the label'. And nobody is allowed to go 'off-label'; as the physical labels say: it is {quote} "a violation of Federal law to use this product in a manner for which it is not intended". And old railroad ties are specifically not "intended" for homeowner or landscaping use. (And the creosote inside them is treated the same way as a 'package' of creosote alone would be. The product is not allowed? Neither are things that contain the product.)

But laws and regulations are meaningless if they're not enforced, which these giant cancer columns are not—despite their danger. Listeners are always sending us photos of them for sale at lumber yards and home stores; and yet, despite this continuous bold and brazen display, it is a violation of Federal law to use them in a home landscape.

And there's good reason why. Old railroad ties—and telephone poles—have historically* been treated with creosote and/or a substance known by the shorthand 'Penta', both of which are classified as either 'known' or 'probable' human carcinogens. And yet, suddenly a large number of people are writing in to say "well, it might be technically illegal, but it isn't spelled out directly, so you should stop saying that".

...which of course I will not do. Let's not forget that I tell people not to use a lot of things that are technically legal if you follow the directions on the label. Like Sevin and other chemical insecticides, Roundup and other chemical herbicides… I want people to know that just because something is legal, it doesn't mean that it's safe. Old railroad ties are unsafe and illegal. Don't use giant columns of cancer in your landscape! If they're already there, don't grow food near them or touch them with bare skin.

Oh—and why this sudden surge of similar emails?

Some people either really want to use these things in their home landscape or want to sell them for such use without any kind of argument. But when I checked yesterday, our previous article on the topic ('old railroad ties are unsafe and illegal') is right at the top of the search results.

…Preceded and followed, of course, by offers of old ties for sale.

(*I say 'historically' because my research for this update revealed that railroads themselves are largely replacing old ties with more environmentally friendly products, like composite lumber. And if railroads don't want to use old-school railroad ties…)


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