Two Moms Are Suing The Federal Government For Not Banning The Chemical That Killed Their Sons

“Had this been banned when it should have been banned, my son would still be here,” Lauren Atkins told BuzzFeed News.

Two women whose sons died after being exposed to a toxic chemical in paint strippers are suing the EPA in the latest attempt to compel the agency to ban the chemical.

Joshua Atkins was 31 when he died from exposure to methylene chloride while refinishing a bike part in a bathroom in his mother’s house. Atkins, who was a BMX biker, had been using Rust-Oleum Aircraft Remover, a solvent that strips finishes from metal.

“Had this been banned when it should have been banned, my son would still be here,” plaintiff Lauren Atkins, who lives in Pennsylvania, told BuzzFeed News.

The EPA under president Obama had proposed banning the use of methylene chloride in paint strippers for consumer products and commercial uses. But the agency has yet to implement the ban.

“The EPA is the one that deemed it unreasonably risky and hazardous to human health and they’re the ones that haven’t banned it,” Atkins said. “I don’t understand that.”

Rust-Oleum’s Aircraft Remover is one of many products that contain methylene chloride, along with paint removers, commercial adhesives, and cleaning products for machines and cars. (Rust-Oleum did not respond to a request for comment.) Most often, people are exposed to the chemical when they breathe it in, according to the CDC. High exposure can cause dizziness and nausea, burn the skin, and damage the central nervous system.

Ahead of an EPA ban, some sellers — including Walmart, Lowe’s, Sherwin-Williams, and Amazon — have committed to phasing out or dropping products that contain methylene chloride.

“It’s a very dangerous chemical, and since the [EPA] rule was proposed in 2017, there have been at least four deaths and there will probably be more deaths unless the EPA acts to get it off the market,” Bob Sussman, one of the attorneys representing Atkins and the other plaintiffs in this lawsuit, told BuzzFeed News. Sussman was the EPA’s deputy administrator under president Clinton and served as senior policy counsel to former administrator Lisa Jackson, who led the agency under Obama.

In May of last year, after lawmakers questioned former EPA administrator Scott Pruitt about the agency’s delay in regulating the chemical, the agency announced that it intended to finalize the ban, and would send a final version to OMB “shortly.” That month, Pruitt met with the families of two men who died after being exposed to methylene chloride.

Wendy Hartley, who is also suing the EPA, was among those who met Pruitt last year. Her son Kevin died in April 2017 while he was working at his family’s company on a job finishing bathtubs. He was 21.

Kevin was using a paint stripper called White Lightning Low Odor Stripper, Hartley wrote in an op-ed last year in the Tennessean. “He was careful: he wore a respirator mask to filter out toxic chemicals, but that wasn’t enough. This chemical is so dangerous that it overcame the mask and Kevin succumbed to the fumes.” (NAPCO, which makes White Lightning, did not respond to a request for comment.)

Since 2000, at least 14 workers have died while using products containing the chemical in bathtub refinishers, according to the Department of Labor’s Occupational Safety and Health Administration.

The lawsuit states that both Kevin Hartley and Joshua Atkins died from inhaling methylene chloride. In addition to Atkins and Hartley, the environmental groups Safer Chemicals, Healthy Families and the Vermont Public Interest Research Group are also included in this lawsuit. It was filed Monday in the US District Court for the District of Vermont.

The EPA sent the proposed ban language on Dec. 21 to the Office of Management and Budget, EPA spokesperson John Konkus told BuzzFeed News. This White House office is required to approve all big agency rules before they are published, but the government shutdown has left the review in limbo.

But experts are concerned that the EPA may be deviating from the ban that Pruitt committed to in May 2018. Another EPA filing to the OMB, also sent Dec 21., indicates that the final ban may only apply to consumers, excluding workers like Kevin Hartley. This “prerule” seems to suggest a training program for workers who use methylene chloride — which would be unnecessary if a full ban is in place.

“All the indications we’ve received suggest that they’re backing off on necessary protections for workers,” Jonathan Kalmuss-Katz, a staff attorney at the environmental group Earthjustice, told BuzzFeed News.

“It’s disturbing that EPA is not taking action here and that even now is hedging its bets,” Sussman said.

Meanwhile, the EPA could be facing another wave of litigation. Earthjustice, which represents the Labor Council for Latin American Advancement and whose members are workers in construction and renovation, and Natural Resources Defense Council both filed paperwork with the EPA last year indicating they intended to sue.

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