The DEP is under the spotlight in its decision on phthalates, after past resistance to the law to protect kids from chemicals.
By Colin Woodard, Staff Writer
Portland Press Herald news story
The LePage administration will soon announce whether it will require manufacturers to disclose which of their products contain any of four potentially dangerous substances, a decision that is likely to resurrect controversy over the administration’s approach to regulating suspected toxins.
The Department of Environmental Protection must decide by Jan. 27 whether to add four plastic softening agents called phthalates to the five substances regulated under the Kid Safe Products Act, a 2008 law designed to protect children and fetuses from harmful chemicals in consumer products.
The phthalates are found in a wide range of consumer products sold in Maine and have been linked to a range of adverse health effects, particularly to fetuses, by disrupting normal production of key human hormones. Starting next month, European Union manufacturers must receive special approval to use three of them in most consumer products.
“We have overwhelming peer-reviewed scientific evidence that pregnant women exposed to high levels of phthalates give birth to children with cognitive, immune deficiency, and reproductive problems,” says Mike Belliveau, executive director of the Environmental Health Strategy Center, which has fought for regulation of the substances.
“It’s a very simple test: Does the administration want to give Maine children a healthier start in life through a libertarian tack that simply informs the public and lets the market decide what to do about it?” he asks.
The ranking lawmaker on the Legislature’s environment and natural resources committee, Sen. Tom Saviello, R-Wilton, also says he’d like to see the phthalates listed and ultimately regulated. “If a ban comes to us in legislative form, I’ll pass it,” Saviello says. “I understand there were very few public comments to support keeping them off the list, so it’s a no-brainer in a way.”
Phthalates are found in everything from raincoats, plastic packaging and detergents to shampoo, hairspray, garden hoses and vinyl flooring. Numerous scientific studies have found associations between adult exposure to phthalates and reduced sperm count and quality and, for boys exposed in the womb, improperly formed reproductive organs. Others have shown possible effects on brain development and the immune system.
The U.S. Centers for Disease Control says that “more research is needed to assess the human health effects of exposure to phthalates.”
The routine rulemaking process is under close scrutiny because the LePage administration and Department of Environmental Protection Commissioner Patricia Aho – a longtime lobbyist for the chemical industry – have been opposed to the law. Shortly after taking office four years ago, LePage proposed repealing it altogether but was rebuffed by the Republican-controlled 125th Legislature.
“There was an effort to gut the whole bill, but I refused,” says Saviello. “I’m not going to expose children to anything they shouldn’t be just because the federal government can’t get out of its way.”
States have taken the lead in regulating chemicals in consumer products because the relevant federal law – the Toxic Substances Control Act of 1976 – is notoriously weak, requiring that regulators present “substantial evidence” of toxicity before banning a substance, rather than making manufacturers prove it is safe before it’s sold.
The Government Accountability Office has repeatedly recommended that Congress change this, pointing out that the U.S. Environmental Protection Agency was unable to ban asbestos under the “substantial evidence” of toxicity standard. For years, Congress has been considering new toxic substances legislation – the Safe Chemicals Act – but it hasn’t taken action.
In 2008, the Democrat-controlled Maine Legislature passed the Kid Safe Products Act, which authorizes the DEP to select chemicals for further regulation from a list of the 49 most pressing ones identified by the Maine Centers for Disease Control & Prevention. But in its first 34 months in office, the LePage administration irked public health activists by failing to put forth a single new toxin. Instead, it tried to remove one of the two toxins already regulated by the previous administration. LePage defended his effort to overturn a ban on the use of the endocrine disruptor bisphenol A, or BPA, in baby bottles and sippy cups, saying “the worst case is some women may have little beards.”
Officials at the DEP declined to comment for this story.
A Portland Press Herald investigation published in June 2013 revealed how Aho, the DEP commissioner, had stifled laws and programs she had been paid to defeat in her previous career as a lobbyist for the oil, chemical, waste management, drug and real estate development industries. The series showed Aho had fought initial passage of the Kid Safe Products Act on behalf of AstraZeneca pharmaceuticals, the American Petroleum Institute and lead paint maker Millennium Holdings, and in early 2011 was still fighting the law as the principal lobbyist for the American Chemistry Council.
The proposals to overturn the BPA ban and the Kid Safe Products Act were drafted by Ann Robinson, the governor’s transition co-chair and informal regulatory reform adviser. Robinson was a lobbyist at the law firm Preti Flaherty who had fought the act for the trade group Pharmaceutical Research and Manufacturers of America and drugmaker Merck, and whose firm was seeking to curtail the law for another client, the Toy Industry Association of America.
In late November 2013, the DEP proposed requiring manufacturers to disclose which of their products contained any of four chemicals from the Maine CDC’s list: formaldehyde, mercury, arsenic, and cadmium. Critics noted that the information already existed, courtesy of a similar regulatory effort in Washington state, and three of the chemicals were already effectively banned from most consumer products. Maine House speaker Mark Eves, D-North Berwick, called the proposal “nothing but window dressing” to avoid taking real action.
Skepticism grew in May 2014 when the DEP suddenly dropped formaldehyde from the list, saying it wanted to await the results of a study the EPA has been working on for nearly two decades. “It was the only one of those four chemicals that had any real substance to it, and once the chemical industry expressed opposition, the administration backed off,” says Belliveau, the advocate who supports manufacturer disclosures.
Saviello, the state senator, was also disappointed by the move and says he has introduced a bill to compel action on formaldehyde, which the National Academy of Sciences has found to be a harmful carcinogen.
DEP spokesperson Karl Wilkins said by email that the department intended to begin a new rulemaking process for formaldehyde, but further details were not forthcoming.
The four phthalates are under consideration because of a citizen’s petition filed in May 2014 and signed by over 2000 Maine voters. They are Di(2-ethylhexyl) phthalate, also known as DEHP; dibutyl phthalate (DBP); benzyl butyl phthalate, (BBP); and diethyl phthalate (DEP.)
Starting Feb. 21 European Union manufacturers will have to receive special approval to use DEHP, DBP, or BBP in most consumer products, Louise Baad Rasmussen, head of the Danish Ministry of Environment’s chemicals section, told the Press Herald. In the U.S., the same three phthalates are already banned in toys and childcare articles under federal law.
The proposed rules would cover a wide variety of products, including clothes, shoes, cosmetics, cleaning products and furniture. In public comments, manufacturers focused criticism on the inclusion of many products not specifically made for children, describing it as an unnecessary expansion of the law’s scope.