Drew Wynne was one of the new, young entrepreneurs that were making Charleston, South Carolina proud. From selling coffee at farmers’ markets, Wynne and his business partner planned to expand the business to “distributing kegs of their cold brew to cafes and technology startups,” upsizing to “commercial-scale production of a hip coffee trend.”
But first they had to fix up their little operation by cleaning old paint off his walk-in cooler floor. Wynne went down to his local Lowe’s to buy a few bottles of Goof Off spray stripper, containing methylene chloride, and a paper mask “respirator” designed for use with “non-harmful paint thinners, chemical strippers and solvents.” He got to work, finishing most of the floor. At some point earlier in the day his business partner talked to him and he mentioned he felt dizzy.
Drew Wynne never came out of the cooler. When his body was discovered, the fire department was called. On arrival, they picked up chemical vapor readings outside of the building, even with the doors closed. The risk of exposure was so great that it took first responders two hours to get him out. His autopsy was delayed because the coroner had to wear a hazmat suit.
The coroner’s report confirmed that Wynne died of “methylene chloride exposure.” The chemical, which converts to carbon monoxide in the body, can starve the heart of oxygen and prompt a heart attack.
A Wake of Death Elicits a Response
Drew Wynne was not the only methylene chloride user to fall victim to its fumes. The Occupational Safety and Health Administration (OSHA) reports that seventeen workers have died from breathing methylene chloride vapors between 2000 and 2015.
But that’s just workers. If you add in people who picked up a can of stripper from the local hardware store, the Center for Public Integrity estimates that “at least 56 professionals and do-it-yourselfers have died suddenly after inhaling it since 1980.” Many were workers who were stripping the finish off of bathtubs, such as twenty-one-year-old Kevin Hartley, who died in 2017 from methylene chloride vapors from a paint stripper he was using to refinish a bathtub.
This death toll has not gone unnoticed by government. A 2016 modernization of the Toxic Substances Control Act (TSCA) gave the Environmental Protection Agency authority to ban chemicals that posed “unreasonable risks,” and in January 2017, EPA proposed a regulation that would “prohibit the manufacture (including import), processing, and distribution in commerce of methylene chloride for consumer and most types of commercial paint and coating removal.” These products are already banned in Europe.
Predictably, the EPA proposal made during the Obama administration generated a violent response from the chemical industry. The Halogenated Solvents Industry Alliance, Inc. (HSIA) called the EPA proposal a “blatant and raw power grab” of authority.
W. Caffey Norman, a partner in the Washington office of Squire Patton Boggs, a law firm that represents HSIA, argues that the EPA regulation would violate Section 9 of the Toxic Substances Control Act, which “bars the EPA from regulating a chemical already sufficiently managed by another agency.”
Two government agencies, aside from EPA, also have regulations that address methylene chloride hazards. OSHA has a comprehensive standard to prevent overexposure in the workplace, and a very low exposure limit to prevent the chemical from causing cancer in workers. The Consumer Product Safety Commission (CPSC) requires labels for consumer use.
Industry argues that EPA can’t ban the chemical because not only do these two agencies already regulate the chemical, but “the Consumer Product Safety Commission voted to include stronger language on household products containing methylene chloride, so consumers would know the products can be deadly and shouldn’t be used in small, unventilated spaces.”
Action Placed on the Back Burner
The election of Donald Trump saw not only the appointment of Scott Pruitt as head administrator, but also the installation of Nancy B. Beck as the head of EPA’s Office of Chemical Safety and Pollution Prevention. For the previous five years, Beck had been an executive at the American Chemistry Council, the chemical industry’s main trade association. As a result, last December, EPA announced in its Regulatory Agenda that, instead of moving forward on the ban, the proposal would be moved to the agency’s “Long Term Agenda”—not a death sentence, but an indication that the initiative was not exactly a high priority any more.
No one disputes that methylene chloride can be deadly, or that current strategies aren’t working. The argument is over the best way to prevent those deaths. The HSIA argues that labeling—and personal responsibility—should suffice, or maybe even “enhanced” labels; for example, adding a drawing of a bathtub with a red line crossed through it.
But not even the CPSC agrees that improved labeling is the way to go. A briefing package prepared by the commission staff stated that “Any action taken by the CPSC would not replace the EPA’s rulemaking and instead, would be an interim measure until the EPA may issue a regulation.”
The Toxic Substances Control Act gives the EPA the ability to address both occupational and consumer uses of methylene chloride, CPSC staff said. Thus, the EPA may address risks associated with the solvent and products containing it “in a more cohesive and coordinated manner.”
Despite concerns of the EPA, OSHA, and CSPC, the chemical industry still believes that improved labels are all that’s needed. In a CBS interview following the death of Kevin Hartley, an HSIA representative said that methylene chloride is safe when used correctly and consistently, and referred to safety information on the labels.
So Why Aren’t Labels Adequate?
First, how many people actually read the fine print on the back of a can of stripper? No one knows, exactly. But, even if do-it-yourselfers actually read the label on products with methylene chloride in them, the labeling fails to convey the risks adequately.
To see for myself how appropriate the labels were, I headed down to my neighborhood hardware store and studied the label on a large can of “KleanStrip Premium Stripper,” manufactured by W.M. Barr, the largest manufacturer of paint stripping products. For a chemical that kills users so regularly, the label’s warnings were shockingly subdued. It mentions the risk of death only twice—if you swallow the chemical, or if you deliberately sniff the stripper to get high. Neither Drew Wynne nor Kevin Hartley were drinking it or trying to get high—they were just doing their jobs.
There were numerous warnings in the fine print on the back of the can—some of it even in capital letters. It warned not to use the stripper “in areas where vapors can accumulate and concentrate such as basements, bathrooms, bathtubs and small, enclosed areas. Whenever possible use outdoors in an open-air area” (emphasis added). If it’s not possible to use the product outdoors, however, the label states that “a respirator may offer additional protection.”
What kind of respirator? The label doesn’t say. You can find a bunch of “safety masks” in the typical hardware store—from paper masks used to trap dust and help protect from non-harmful solvents, to more serious looking respirators with canisters on them to protect from fumes and vapors. The KleanStrip label warns that a paper mask isn’t adequate, so a consumer might assume that choosing a respirator with air-purifying canisters is the right choice.
But no. The canisters on these respirators quickly become saturated with the chemical.
The conundrum is that a hardware store that sells products with methylene chloride in them typically doesn’t sell the type of respirator that provides protection for prolonged used of those products. Even a do-it-yourselfer who buys the best protection available at the average hardware store will be at risk if he or she works on a project too long.
OSHA, which only regulates safety for workers, considers methylene chloride to be “immediately dangerous to life and health” and requires full-face atmosphere supplying respirators—in other words, full hazmat suit with clean air supplied through a hose or from tanks similar to what SCUBA divers wear.
OSHA has strict respirator requirements that employers must follow, but for non-workers, the California Department of Public Health warns that “For continuous work, only an air-supplied respirator will protect you. Cartridge respirators saturate quickly, and dust masks do not provide protection.”
None of this information made it to Kevin Hartley, who was wearing a canister respirator when he died.
Despite Public Outcry, EPA Feels No Urgency
Congressman Frank Pallone (D-NJ) is one person who is fed up with EPA delays on banning methylene chloride. At an April 26 congressional hearing, Pallone grilled EPA administrator Scott Pruitt, asking him whether he understood the hazards of the chemical, and what EPA was doing about it.
At the hearing, Pallone told the story of Joshua Atkins, a thirty-one-year-old who died in February after using a common product containing methylene chloride to strip the paint on his bike. Pallone also introduced Brian Wynne—Drew Wynne’s brother, who had traveled to Washington for the hearing—and referred to Drew’s family, who previously had demanded that EPA ban the chemical.
“You have the power to finalize the ban on methylene chloride now and prevent more deaths, but you haven’t done it,” Pallone said. “Do you have anything to say to these families?”
Pruitt was noncommittal— claiming that the agency was “reviewing public comments,” and that “No decision has been made to deny that ban.”
Following the hearing, Pruitt met with the families of Drew Wynne, Joshua Atkins, and Kevin Hartley, who pressed him to move forward on the ban. Brian Wynne said that the response they got from Pruitt was “disappointing.”
South Carolina senators Lindsey Graham and Tim Scott, along with Congressman Mark Sanford—all Republicans from Wynne’s home state—had also sent a letter to Pruitt on March 22, urging him to stop delaying a decision to ban the chemical.
All of the pressure seems to have had an effect. On May 10, EPA announced that it would “finalize the methylene chloride rulemaking” and that it would rely on the risk analyses used to propose the ban during the Obama administration instead of creating new analyses.
What we don’t know yet is whether the EPA rulemaking will actually ban the chemical for certain uses, whether the ban would extend to workers as well as consumers, or whether there will be certain exemptions.
We also don’t know if a ban would include a similar stripper, N-methylpyrrolidone, known as NMP. The agency’s original proposal suggested either banning NMP in paint strippers or requiring lower amounts of the chemical in mixtures because it is linked to miscarriages and other harms to unborn children.
On May 29, home improvement retailer Lowe’s announced that it would phase out the use of methylene chloride and N-methylpyrrolidone in its paint removal products sold globally by the end of this year. The company—where Drew Wynne had bought the paint stripper that killed him—had been under intense pressure from the Green Chemistry and Commerce Councils, Safer Chemicals, Healthy Families, and other consumer advocate groups, as well as the families of victims of methylene chloride. The campaign included news conferences in front of stores, handing out material to store managers and calling into their customer-service lines. The advocates were also preparing to show up a Lowe’s annual shareholder meeting on June 1. So far, Lowe’s rival, Home Depot, has decided not to emulate Lowe’s, preferring to wait for the EPA to act.
It will be months before we find out what the EPA has decided to do. So far, its final regulation has not gone to the White House for review. But if Pruitt’s EPA follows through with the ban on methylene chloride, consumers and workers may have learned an important lesson about how to fight the weakening of protections during the Trump administration: the combination of victims’ families, congressional hearings, and bipartisan political pressure may sometimes succeed in forcing Trump’s appointees to do what they are supposed to do, and enforce the laws passed by Congress to protect the American people—even in the face of strong industry opposition.