State lacks initiative in flame retardant ban
Oakland Tribune, Douglas Fischer
Published July 16, 2005
With less than a year before California's ban on a class of flame retardants takes effect, no substantive discussions at any level of state government are taking place on how to enforce it, according to interviews with regulators at various levels in several agencies.
As a result, the much-hyped ban appears likely to go into place next June with the chemicals still tainting consumer products - namely carpet padding and cheap, imported upholstered furniture.
The banned compounds, two flame retardants within a class of chemicals known as polybrominated diphenyl ethers, or PBDEs, are extremely effective at stopping fire in foam and certain plastics. But they also are potent neurotoxins and, in animals, disrupt thyroid activity at low levels.
Studies show increasing contamination of the blood of almost every U.S.
adult, with levels 10 to 100 times higher than elsewhere in the world,near concentrations causing harm in animals. California, with some of the most stringent fire safety standards in the world, has proven to be a particular hot spot.
In an effort to stop that trend, two years ago California became the first state to prohibit the sale of two common commercial PBDE mixtures, known as "penta" and "octa."
Several states followed suit. But industry moved faster. Facing a similar ban in Europe, major global producers - including penta's sole U.S. manufacturer and the entire domestic furniture industry - abandoned penta and octa, shifting to different flame retardants earlier this year.
Frustratingly for consumers, almost no manufacturers say what ingredients are in their foam. Determining whether a particular couch or foam mattress is flame retarded with PBDEs isn't easy. But industry groups say they know of no one worldwide making either penta or octa now.
Testing needed
Federal and state regulators say that may be true, but they and others
caution that such a statement cannot be verified without product testing.
And that is where California's moratorium could come up short.
"First you have to find where these (PBDEs) might be, then you have go do testing ... It's a difficult issue." said Mark Rossi, the
Massachusetts-based research director of Clean Production Action.
"I can empathize with the state. I can see how they'd say, 'Well, if
nobody's going to make a big deal about this, we're not going to do
anything.'"
The ban prohibits "manufacturing, processing, ... or distributing in
commerce" any product containing more than one-tenth of one percent of
either penta or octa, meaning some lines of furniture, mattresses and carpet padding on sale today could not be legally sold next summer. Certain appliances made with high-impact polystyrene will also be affected.
Calls to state agencies overseeing chemical policy or product safety
requirements found the question of enforcement playing like a game of hot potato:
-The California Bureau of Home Furnishings and Thermal Safety, within the Department of Consumer Affairs, said "not us" and palmed responsibility off to the California Environmental Protection Agency.
-Within Cal-EPA, the Office of Environmental Health Hazard Assessment cited a lack of enforcement authority, with one official saying "you don't have Ph.D toxicologists" - who make up the agency's staff - "going out to sofa factories and that sort of thing." He suggested the Department of Toxic Substances Control.
-DTSC deals primarily with hazardous waste sites. To ask enforcement
officers to sniff out banned compounds in furniture and mattresses "seems odd," said spokesman Ron Baker. "It should go to (the Department of) Consumer Affairs."
-A bill introduced this year by Assemblywoman Wilma Chan, D-Oakland and
author of the original 2003 ban, gave DTSC enforcement responsibilities. But Assembly Bill 263 was gutted in committee. The rewritten version - still in committee - assigns enforcement to the state Attorney General's office.
-Cal-EPA's deputy secretary for law enforcement, Maureen Gorsen, has had discussions with some departments holding enforcement powers, said spokesman Jon Myers. But "right now, it's in the conversation stage." Further action remains on hold pending AB263's resolution, he said.
-The Attorney General, who needs no specific law to enforce a statute, has no plans to test sofas at the local furniture discount store, said Tom Dresslar, spokesman for Attorney General Bill Lockyer. "That's not our function. We're a law enforcement agency, but we're not a product safety or testing agency."
High risk compound
Meanwhile scientists are increasingly certain these compounds pose a risk, with children particularly vulnerable. Some five percent of the U.S. population is thought to be near levels causing harm in animals. And almost no one has examined the very young, despite evidence they could be 100-times more exposed than adults, chiefly from PBDE-contaminated breast milk and house dust.
All of which has ban advocates concerned about the apparent lack of
enforcement effort.
"There has to be some regulatory authority," said Assemblywoman Chan last week. "My intent is to have a law with some teeth. We'll have to do what we have to do to get it done."
The Attorney General's solution to enforcement is simple: rely on citizens or public watchdog groups to file complaints, then investigate.
"The Attorney General has been very aggressive about enforcing consumer
protection/public health-type laws," Dressler said. "But in terms of
determining whether any particular product is being manufactured or brought into California in violation of the law, for one thing, we don't have the manpower."
That solution is laughable to folks like Bill Walker of the Environmental Working Group, one of the groups to first bring the notion our chemical "body burden" to light.
For starters his group, like many others, is now focused on banning a so-far unregulated PBDE known as "deca" and found in commercial textiles and hard plastics of ordinary consumer products like coffee makers, computers and TV casings.
Second, tests necessary to confirm the presence of penta or octa are
expensive. Very expensive. "I don't know of anybody that's got the
capability to do that," Walker said. "We don't have the capability to
monitor compliance."
Chemical related
PBDEs are close chemical cousins to their banned counterparts, PCBs. Until Europe and California banned the compounds, worldwide demand for the flame retardants was approaching levels of PCBs at their peak. In 2001, the latest figures available, production totaled 74,000 tons of PBDEs, with the vast majority going to the United States. Nearly 17 percent of the total - 12,500 tons - was penta or octa. The rest was deca.
Today, worldwide production of penta and octa is zero, according to the
Bromine Science and Environmental Forum, an industry group. And all sides credit bans in California, Europe and elsewhere for that.
"The law itself is not toothless," said Mike Belliveau, director of the
Maine-based Environmental Health Strategy Center, which successfully fought for a California-styled ban in Maine. "The question is what political will exists to enforce that law. It is incumbent upon the state agencies to say here's how we intend to force compliance with the law."
So far, that's not happening.
And that uncertainly is causing considerable tumult in industries where the two compounds are most likely to be found.
Take carpet padding. Until the bans, the recycling of scrap foam and used carpet padding into new padding was a growth industry. The material kept prices low and diverted some 300 million pounds of foam a year from U.S.
landfills.
Louis Renbaum, president of the Baltimore-based Foam Recycling Center, has spent a dozen years building one of largest carpet pad recycling operations on the East Coast.
Now, he said, companies are marketing their products as "free of recycled materials." He can't give the stuff away.
Nation wide
Because he has no idea what's in that foam, or whether the old padding
contains foam with PBDEs, or if trim from cushions made in Georgia to be sold in North Carolina might end up in carpet padding destined for
California.
"You can't test it. It'll be cost-prohibitive to test it," he said. Which means his business is dead.
A test by the National Institute of Standards and Technology of several
off-the-shelf carpet pads found one with concentrations that would be banned in California.
Imported furniture presents another unknown.
According to the U.S. EPA, penta was used chiefly - but not always - in
cheap foam furniture. Two years ago the agency signed an agreement with the sole U.S. manufacturer of penta and octa - the former Great Lakes Chemical Corp., now Chemtura - to cease production. But it cannot answer whether others overseas still produce the products, said Charles Auer, director of EPA's Office of Pollution Prevention and Toxics.
Later this year, the agency expects to announce a new rule requiring
manufacturers or importers to notify the agency prior to importing any octa or penta. But the draft rule only applies to the chemical itself. Importers of foam or furniture fire retarded with those compounds would be exempt.
Chemical alternatives
Domestic manufacturers say they saw the signals and switched to
alternatives. In fact, it was furniture makers who pressured federal
regulators to meet with chemical companies and find something safer.
"Certainly, there has been pressure from the furniture industry to suppliers to provide them with non-toxic alternatives," said Russ Batson, vice president for governmental affairs at the American Home Furnishings Alliance.
He admits that foreign compliance with U.S. laws has not always been
stellar. But the use of penta might not be the biggest issue. "They're only using penta in the foam to meet U.S. (fire safety) regulations. Maybe they never even get that far."
With major players out of the business, bans sticking in Europe, California, Maine, Michigan and Oregon, and furniture makers pressing for alternatives, advocates say the moratorium has already been effective, even if the state never lifts a finger.
"It kind of gets to the problems this sort of legislation in general," said Renee Sharp, senior analyst with the Environmental Working Group.
"First, there's no one doing any kind of monitoring to see if it's
happening, and second, even if they wanted to, how exactly would you do it?
"But ... we're essentially pushing (manufacturers) to stop making the stuff. Which this ban is doing."
This paper's investigation of chemical "body burdens" can be found on the web at
http://www.insidebayarea.com/bodyburden .
