Mother plans to sue EPA over sons death involving chemicals

Chemical

(Tennesseean)

A Tennessee mother is taking steps to sue the Environmental Protection Agency for apparently failing to finalize a ban on a chemical that killed her 21-year-old son last year.

Wendy Hartley “joined forces” with several other parties and submitted a notice of intent to file suit against the EPA on Oct. 31, aiming to push the agency to ban methylene chloride. The notice is addressed to acting Administrator Andrew Wheeler.

“EPA has historically been the subject of a number of lawsuits and we will review this one as well, but in the meantime the agency will continue to work towards a solution,” an EPA spokesperson said in an email. “EPA is currently evaluating the proposal and regulation of this substance and its uses to determine the appropriate regulation and to ensure the rule’s legal defensibility.”

Hartley is named on the notice with the Labor Council for Latin American Advancement, Safer Chemicals Healthy Families, Vermont Public Interest Research Group and Lauren Atkins, another mother whose son died after inhaling methylene chloride while using a paint removal product. They’re represented by Jonathan Kalmuss-Katz and Eve C. Gartner of Earthjustice and Robert M. Sussman of Sussman and Associates.

Kevin Hartley, who graduated from Sycamore High School, died in April 2017. He collapsed and went into cardiac arrest before he was found unresponsive at work.

“It should’ve been banned a long time ago,” Wendy Hartley said of methylene chloride. “Kevin is not the first Tennessean to have died because of (it). …This should not keep happening.”

Dangers of methylene chloride

The Oct. 31 notice states that 1.3 million Americans are at risk from exposure to methylene chloride paint removers in their homes and workplaces annually, citing the EPA.

“EPA’s failure to finalize a proposed ban on (methylene chloride) — a toxin that EPA has found to present an unreasonable risk of cancer, heart failure, and sudden death — violates that statutory obligation,” the notice states, referring to the Toxic Substances Control Act. “A common ingredient in paint removers, (methylene chloride) is known to cause asphyxiation from acute exposure and is responsible for more than 60 reported deaths, as well as incapacitation, loss of consciousness, and coma.”

Some retailers — including Lowe’s, Walmart, Home Depot and Sherwin Williams — have already announced on their own they would stop selling methylene chloride paint removal products, according to the notice, which also states that the EPA has recognized that the chemical is hazardous.

Failure to act

Hartley and another mother whose son died after inhaling the chemical met with then-Administrator Scott Pruitt in May, and Hartley said although she felt Pruitt “actually listened” to their concerns, there hasn’t been any progress to ban methylene chloride since.

The EPA announced in a May 10 news release that it would take action on the paint-stripping chemical. That release states that the agency addressed paint-stripping uses in a risk assessment in 2014. The EPA proposed banning commercial and consumer use for methylene chloride in January 2017, and in June of that year, announced it would not re-evaluate uses of the chemical.

The release stated that the EPA “intends to finalize the methylene chloride rulemaking,” it is “not re-evaluating the paint stripping uses of methylene chloride and is relying on its previous risk assessments,” and is “working to send the finalized rulemaking to (the Office of Management and Budget) shortly.”

But no draft has been submitted, nor has a final rule been published since then, the notice states.

The Toxic Substances Control Act requires the EPA has at least 60 days’ notice before the parties move forward, according to a Safer Chemicals Healthy Families news release. Hartley said the parties have not heard anything from the EPA, and she doesn’t expect to hear anything “until day 59.”

Putting faces to the story

“Once I understood how severe and how dangerous this chemical was, I had reached out and pretty much said, ‘Whatever you need … if I’m able to, I’ll do it,’ ” Hartley said of her determination to get the chemical banned. She said it’s one thing for environmental groups to push for it, but it’s another thing to “put a face to the story” by sharing what happened to her son.

The first time Hartley had even heard of methylene chloride was seeing it on her son’s death certificate.

“Three heartbroken, pissed-off moms together … can do a lot,” Hartley said. “I always just thought if it was on my store shelf (it) should be safe for me to use.”

She said it’s “easier” knowing that her son was an organ donor, and that sharing his story could help save more lives.

“I want to help save more lives,” Hartley said. “I’ve hugged two mothers that have lost their sons (and) don’t want to hug any more … because the EPA failed to act.”

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