Will Senator Udall Accept the Blame for Methylene Chloride Deaths?

Hearings for Nancy Beck’s nomination to chair the Consumer Product Safety Commission took place last week at which several Senate Democrats launched outrageous and unfair attacks. Sen. Tom Udall (D-N.M.) hit a new low when he basically accused Beck of murder because he asserted that the Environmental Protection Agency (EPA) did not move swiftly enough to ban paint strippers containing methylene chloride.

These products have been used for many decades on wood, bathtubs, floors, and other surfaces to remove paint and other finishes. Label instructions indicate these products could be fatal if not used in well-ventilated spaces. Bathtub refinishing, in particular, requires specific personal protection measures because methylene chloride fumes are heavier than air and concentrate at the bottom of the tub where workers are scraping off the finish.

Just before President Barack Obama left office, the EPA proposed a ban on methylene chloride paint strippers. The following May, Nancy Beck became Deputy Assistant Administrator in the Office of Chemical Safety and Pollution Prevention, which was charged with developing a final rule on methylene chloride. The agency finalized the rule in March 2019 but allowed commercial uses to continue.

If Udall wants to hold Beck responsible for the two accidental deaths that occurred during the two years she worked on the rule, he should apply that standard to himself. That would hold him responsible for those two deaths—plus all the others that happened after he took office in 2009.

As detailed below, Udall didn’t press the Obama EPA to act with any urgency, nor did he introduce stand-alone legislation to advance a ban. Based on his behavior, it seems that the issue only became an emergency to him after President Trump was inaugurated. 

Both methylene chlorine deaths that occurred after Trump took office were tragic accidents and the result of product users failing to follow safety guidelines outlined on the product labels.

One case was 21-year-old worker Kevin Hartley, whom Udall claimed was trained on how to safely use methylene chloride products and had in fact used a respirator as required when stripping finishes off bathtubs. Beck replied that she did not have information on the type of respirator he used, but before she could finish her point, Udall cut her off, prevented her from answering, and then went off on a tirade impugning Beck’s character. However, Beck’s inquiry was clearly important because it appears Hartley did not use the proper respirator.

A report on WebMD notes that Hartley and his uncle took a class sponsored by NAPCO Ltd. to learn the trade and were schooled on safety measures, but they declined to purchase the necessary safety equipment.

Kevin went home ready to work, but without all of the recommended safety equipment—a decision that might have cost him his life. … OSHA [Occupational Safety and Health Administration] regulations require workers who work in heavy concentrations of methylene chloride vapors, as bathtub refinishers do, to use a system that pumps fresh air into a mask that covers the entire face, nose, mouth, and eyes. It looks like a hazmat suit with a long hose that runs to outdoor air. … A spokesperson for NAPCO Ltd. says Kevin and his uncle declined to purchase the company’s fresh-air system, which costs $429. That’s about as much as a refinisher makes on a single job.

Hartley may have been wearing a mask, but it was not the type of protective equipment he was informed was necessary to protect himself. It was a tragically sad mistake.

The other person who died was Drew Wynne, a young man who used the chemical to strip the floor of a walk-in refrigerator. The label states that the product should be used outside or in a well-ventilated area. You can see the label in the photo on this CBS news story. Again, this was a terrible accident, but it’s not reasonable to blame Nancy Beck.

Udall chided Beck, stating: “Had you and EPA not delayed banning methylene chloride, Kevin would be alive today. Drew would be alive today. Others would be alive today.” That’s not necessarily true, but it is true that Udall himself could have taken stronger actions to get the product off the market many years ago. And he had more opportunities to do so than did Beck.

Udall should have been aware of methylene chlorine risks during the first term of the Obama administration. In 2012, the Occupational Safety and Health Administration published a hazard alert related to bathtub refinishers, warning companies and their workers of the risks and how to mitigate them. It clearly stated that if workers fail to take proper protective measures, they face potentially fatal consequences from the product’s fumes. The OSHA alert identified 14 deaths since 2000 among workers who used it in bathtubs. In 2015, OSHA reported a total of 17 such deaths.

What did Udall do? Not much. I couldn’t find any stand-alone bills that he sponsored to ban the chemical. Nor could I find any evidence searching Google and Westlaw’s news database that he made any effort to press the Obama EPA to take swift action.

Udall might argue that he was working hard to get a reform to the federal Toxic Substances Control Act (TSCA) that would empower the EPA to ban the chemical. But apparently, he didn’t think it was wrong to wait for that to pass rather than urge the agency to act immediately or to introduce an emergency stand-alone bill to ban methylene chloride. The TSCA reform that Udall cosponsored passed in 2016.

Ironically, during 2015, environmental activists criticized that bill because it included provisions that set up a long process of several years for the EPA to reassess existing chemicals rather than outright ban them. Safer Chemicals, Healthy Families noted:

It fell to Senator Boxer in the hearing to highlight a particular weakness of the Vitter-Udall bill in the area of expedited action on known problematic chemicals. EPA would have to prioritize asbestos anew, for example, and go through the whole process to try and regulate it, even though it is perhaps the most notorious substance we have. Her own bill would name asbestos and require EPA to restrict it up front. Similarly, her bill would require EPA to first identify and then expedite action on the class of chemicals that build up in the food chain.

Udall’s bill set the schedule the EPA followed for the methylene chloride ban. Section 6 gave the agency six months to select the first 10 “priority chemicals” and three years to conduct risk assessments on each chemical, with the opportunity to extend the three years by six months (see page 18). The EPA listed methylene chloride as a priority chemical in November 2016, leaving up to another three and a half years for the assessment and final decision. Beck and her EPA colleagues complied with the schedule Udall helped set up, which is impressive given the slow nature of bureaucracy.

If Udall thought a ban was urgent, why did his bill allow three and a half years for the risk assessment? If he thinks it took too long and people died as a result, he has nobody to blame but himself. Moreover, there was no reason Udall had to wait for TSCA reform to pass before pressing the EPA to ban a chemical that he considered so imminently dangerous.

Section 6 of the original 1976 TSCA law allowed the EPA to regulate and even ban chemicals when it found that a chemical posed an “unreasonable risk of injury to health or the environment.” Udall and others called for reform because they said this provision was not adequate, buy that’s not the case. The EPA stopped trying to ban chemicals under this provision because it lost one case related to certain asbestos. But the agency did ban dioxin, polychlorinated biphenyl, and several other chemicals. After it lost one case related to asbestos (and for good reasons), EPA bureaucrats and political appointees appear to have just given up. They certainly could have acted quicker but didn’t bother.

According to a March 20, 2015, Inside EPA story, three years after OSHA issued its hazard warning, Obama administration officials said they were “exploring” the possibility of banning methylene chloride paint strippers under Section 6 of the original law. Yet it wasn’t until January 2017, just before Obama headed out of town, that the Obama EPA proposed a ban. Why didn’t Udall speak out and blame Obama appointees for methylene chloride accidents during that timeframe?

In addition to basically accusing the Trump EPA and Beck of murder, Udall tried to build a ridiculous narrative that Beck was fine with as many as 1 percent of users dying from the chemical. According to a New York Times report, he said Beck had asked an EPA colleague what the risk level was for the chemical. “Is it 1 percent?” she allegedly asked. Udall then proceeded to cast this question an as if it were an assertion, indicating that Beck would be fine with a 1 percent death rate—a non-sequitur conclusion. You can read part of this discussion transcribed in the Los Alamos Daily Post.

Beck replied: “Before answering a specific question like that I’d like to see the report you’re referring to. But I don’t believe that we can put a number or percentage on the value of a life.” Udall responded: “This was an esteemed EPA deputy administrator—a longtime career employee that says that you made that quote.” In other words, it’s hearsay and likely a leak from a political opponent of the Trump administration, maybe even a former Obama EPA holdover.

We don’t know if what that EPA official said was accurate, but it really doesn’t matter. Even if the quote is right, all Beck did was ask a question, probably as part of a discussion about what an acceptable risk level might be and how it can be mitigated, which is part of any good risk assessment.

After all, everything in life poses a risk, and people must decide what’s acceptable every day. That’s true whether it’s a decision to allow a new medicine, approve a chemical product, or get out of bed each morning. Determining what risks are acceptable includes weighing the tradeoffs, such as the possible increased overall risks from replacement products. These considerations are part and parcel to the TSCA law that Udall cosponsored.

Wood finishing specialist and author Bob Flexner does an excellent job explaining such tradeoffs in an article for Popular Woodworking. Methylene chloride itself, he notes, was developed as a safer alternative to much more flammable paint strippers, and the estimated death rate is quite low. Of course, we always want a zero death rate for any consumer product, but everything carries risk. Flexner points out that if we applied zero-risk logic to all consumer products, stores would have to stop selling even the most basic items. He explains:

Three hundred people a year are killed in falls from ladders. 164,000 go to emergency rooms. Remember that only 1.5 people die a year from acute exposure to methylene chloride. And though every life is valuable, these figures undercut the reasoning.

What’s even worse, Flexner maintains, is that the only effective paint strippers left are the more dangerous, highly flammable ones. He notes:

Concerning flammability, this is a real issue. I haven’t found any statistics, but I have had direct experience. A number of years ago one of my furniture restoration clients hired a painter to strip the paint from the wood trim and paneling in several rooms of a very nice house. After applying the flammable stripper to a section of one room, the painter flipped on a light switch, which sparked and started a fire that couldn’t be extinguished before half the house had been destroyed.

These are the types of tradeoffs risk assessors must consider when developing regulations. Beck was not even allowed to have a private conversation about weighing and balancing such risks without being attacked and basically called a murderer. Yet more people may die if we don’t weigh the risks and determine which are acceptable and can be managed.

If people use methylene chloride in well-ventilated spaces, they can mitigate the risks. Banning the chemical isn’t a good solution, particularly given the fact that alternative products may prove more dangerous.

In the final analysis, Udall’s attack on Beck really didn’t have much to do with science, regulatory delay, or even public health and well-being. It was nothing more than a display of self-serving politics. Truth be told, I don’t really find it fair to blame Senator Udall for all the deaths since he got elected either, but if that’s the standard he applies to Beck, then he should apply it to himself.