Thursday, December 5, 2013
Second of three parts
Scientists and policy experts say unborn children are endangered by at least two types of chemicals for which regulation in Maine has stalled.
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HERE'S WHAT WE FOUND
A Portland Press Herald/Maine Sunday Telegram investigation has found Patricia Aho, a former industrial and corporate lobbyist who became commissioner of the state’s Department of Environmental Protection in 2011, has scuttled programs and fought against laws that were opposed by many of her former clients in the chemical, drug, oil, and real estate development industries. Under Aho, the DEP has:
• Frozen the Kid Safe Products Act – a 2008 law to protect fetuses, babies and children from potentially damaging chemicals – by blocking efforts to bring more chemicals under the law’s jurisdiction, chemicals produced by Aho’s former lobbying clients.
• Reduced enforcement actions by 49 percent against large developers and landowners. Aho had unsuccessfully fought to weaken many of the laws at issue as the longtime lobbyist of the Maine Real Estate and Development Association.
• Fought to roll back recycling programs that are strongly opposed by former clients of Aho and a still-active lobbyist, Ann Robinson, the governor’s regulatory reform adviser.
• Oversaw a purge of information from the DEP’s website and a clampdown on its personnel, restricting their ability to communicate relevant information to lawmakers, the public, policy staff and one another.
THE SERIES DAY TO DAY
SUNDAY: For two years, public servant Patricia Aho has overseen Maine’s environmental protection. But whom does she really serve? Our seven-month investigation points to her former corporate clients.
TODAY: Led by a former chemical industry lobbyist, the Maine DEP has stalled efforts to regulate substances that are potentially harmful to children and to the development of unborn fetuses.
TUESDAY: So-called “product stewardship” regulations – even recycling efforts with industry and bipartisan support – find staunch resistance at the Maine DEP, where a former corporate lobbyist has taken the helm.
AUGUSTA — Phthalates, a class of chemicals used to soften plastics, are everywhere: in skin lotions and shampoos, glue and detergent, food containers and hospital feeding tubes. They’re also almost certainly in you and everyone you know. Fortunately, they pass out of your body quickly and appear to do no harm – unless you’re a male fetus.
Researchers believe that these chemicals could be wreaking havoc on the development of unborn boys’ genitals and reproductive systems with lasting consequences for the rest of their lives. The chemicals are known to block androgen, a key hormone that fosters male sexual development in the womb, which in turn can lead to undescended testicles, reduced penis size and poor fertility in adulthood.
“If you can reduce the phthalates in moms, that’s definitely something we should do,” says Shanna Swan, a national expert on the chemicals who works at Mount Sinai Hospital in New York City.
Which is why the Maine Center for Disease Control & Prevention included seven phthalates on its short list of the most pressing chemicals to consider for regulation under the Kid Safe Products Act, a 2008 law designed to phase out toxic chemicals in toys, car seats, sippy cups, and other children’s products. It wasn’t an easy list to make: the CDC culled 49 priority chemicals from 1,384 worrisome substances it had identified.
Every chemical on the list has been found 1) to have been detected in humans, their homes or household products; and 2) to be either a carcinogen, neurotoxin or substance that harms hormone production, organs, or fetal or childhood development. In November, four of the phthalates on Maine’s list were banned from all consumer products by Denmark, and the European Union has banned three of them from children’s toys since 1999.
“They’re all bad and they’re common,” says Mike Belliveau, executive director of the Maine-based Environmental Health Strategy Center, which advocates nationally for chemical policy reform and strongly supports the law. “Some are hormone-disrupting and some are cancer-causing and some are long-lived in the environment and the food web.”
But Maine Department of Environmental Protection Commissioner Patricia Aho – a chemical industry lobbyist who took the helm at the DEP in 2011 – has stalled efforts to regulate these substances, all of which are potentially harmful to children or to pregnancies.
A seven-month investigation of the DEP by the Portland Press Herald/Maine Sunday Telegram found that the department staff is under pressure not to vigorously implement or enforce certain laws opposed by the commissioner’s former lobbying clients. Documents and interviews with current and former staff members reveal a pattern of deference to industrial interests once represented by Aho when she worked for Pierce Atwood, the state’s largest law and lobbying firm, including producers of chemicals and products likely to run afoul of the new chemical law.
Aho had fought to stop the Kid Safe Products Act from becoming law in 2008, when she was a lobbyist for AstraZeneca pharmaceuticals, the American Petroleum Institute and lead paint maker Millennium Holdings, lobbying disclosures show. Just weeks before being appointed to the DEP, Aho was working as the principal lobbyist for the American Chemistry Council, which also opposed the law and has sought to weaken it.
She isn’t the only figure associated with Gov. Paul LePage’s administation to have represented corporate opponents of the law.
Ann Robinson, the governor’s transition co-chair and informal regulatory reform adviser, is a lobbyist at Preti Flaherty, another large law firm. She fought the Kid Safe Products Act in 2008 on behalf of two clients – the trade group Pharmaceutical Research and Manufacturers of America and the drugmaker Merck – and her firm was hired by the Toy Industry Association of America to support passage of a 2011 bill that would have curtailed the law.
Two other Preti lobbyists, Severin Beliveau and Bruce Gerrity, fought the law in 2008 on behalf of the Personal Care Products Council and the Toy Industry Association, respectively.
Since taking office, Aho has worked to neuter these and other environmental regulations opposed by their current or former industry clients, while Robinson tried unsuccessfully to get the Legislature to overturn them.
“All of us are concerned when it appears that business or the industry is getting the primary ear of the governor or the Legislature,” says Dr. Lani Graham, who served as the state’s top health official in Gov. John McKernan’s administration and is currently co-chair of the public health committee of the Maine Medical Association.
“Unfortunately, it’s a common pattern that goes back many decades that targets any public health intervention that appears to interfere with business in any way,” she said.
The law has the support of the Maine Medical Association, which represents the state’s physicians, saying it “strikes the right balance between business and public health interests.”
The LePage administration tried and failed to get the Republican-controlled 125th Legislature in 2011 to effectively overturn the Kid Safe Products Act. Instead, it has pivoted to stopping the law in its tracks by refusing to apply it to additional suspected toxins, halting actions that would merely require manufacturers to reveal which of their children’s products contained them.
In the two and a half years since Gov. Paul LePage took office, the DEP has failed to put forth a single new toxin to add to the two types regulated under the previous administration.
Instead, it tried and failed to stop regulation of one of the two chemicals already regulated under the Kid Safe Products Act: bisphenol A, or BPA, which was to be banned from baby bottles and sippy cups. The substance is an endocrine disruptor that even at low doses interferes with the production of hormones in the body, with potentially serious consequences, according to scientific studies cited by the DEP when it called for the ban in 2010. LePage dismissed concerns about BPA, a common additive to plastics, saying “the worst case is some women may have little beards.”
• THE STATES ACT: And ‘Maine is at the forefront’
Maine has been out ahead of the rest of the country in regulating chemicals, but other states have followed its lead, making business more difficult for chemical manufacturers. “Maine is at the forefront on these issues and pushing the boundaries at the state level,” says Sarah Doll, the Oregon-based national director of Safer States, a national coalition pushing for more stringent regulation of chemicals in consumer products. “Other states – California, Massachusetts, Minnesota and Washington – have done parts, but Maine really has all the regulatory pieces lined up.”
States have taken the lead because the relevant federal law – the Toxic Substances Control Act – is weak, requiring that regulators present “substantial evidence” of toxicity before banning a substance, rather than making manufacturers prove it is safe before it’s sold. The Government Accountability Office has repeatedly recommended Congress change this, pointing out that the U.S. Environmental Protection Agency was unable to ban asbestos under those provisions. (Congress is considering a bill – the Safe Chemicals Act – that would reform the act, but passage is uncertain.)
“Clearly the federal system is broken, and Maine is piloting some solutions,” says Doll. “There’s a lot of interest in it, so there’s going to be pushback.”
• THE DEFENSE: ‘They just don’t have the staff’
The LePage administration says the reason it has failed to name additional chemicals under the Kid Safe Products Act is because of a lack of means, not a lack of will. It says the DEP has limited staff to deploy on chemical issues and that those available have been tied up dealing with the results of a June 2012 petition by a coalition of environmental groups that ultimately led the BEP to require that BPA be banned from baby-food containers. (BPA had previously been banned for use in baby bottles and sippy cups, with the near-unanimous approval of the Republican-controlled 125th Legislature.)
Aho and a department spokeswoman declined to be interviewed on the issue.
LePage’s communications director, Peter Steele, said the department had been moving to implement the law. In 2011 it focused on “analytical work necessary to create the ‘chemicals of high concern’ list, which involved substantial staff resources” at the DEP, he said. In 2012 it had to collect data and contract analysis related to the citizens BPA petition. “This was a significant amount of staff resources for a program that has only one staff person,” he said.
“If DEP doesn’t have to change the program again, the department is ready to focus on and implement the program to determine what are the next priority chemicals,” Steele added.
The ranking Senate Republican on the Legislature’s Environment and Natural Resources Committee, Sen. Tom Saviello of Wilton, also defends the department’s handling of the program. “They’ve spent 1,500 hours dealing with the BPA petition. How can they focus on something else? They just don’t have the staff,” he says. “I believe that we can protect children, but we need to do it with the resources we have.”
Senate Majority Leader Seth Goodall, D-Richmond, disagrees, saying that naming additional chemicals for regulation should be a priority and noting that the legal changes made in 2011 make it easier for the DEP to identify those that are the most dangerous, as they allow the department to rely on work done by other governments.
“Every administration has to make choices, but in my view trying to protect children from dangerous chemicals should be a top priority,” he said. “We should keep putting pressure on the agencies that do this public health work to take action.”
To compel action, Goodall introduced legislation earlier this year – L.D. 1181 – that included a requirement that the department name two chemicals from the list of 49 every year, but that measure was dropped during negotiations with Republicans. The bill still requires manufacturers of the 49 chemicals on the high-concern list to report what products they are found in and is expected to be voted on in the House and Senate this week.
The DEP manager who oversees the Kid Safe Products program, Melanie Loyzim, had testified to legislators that Goodall’s original language would have required the hiring of “at least” seven new full-time staff and amounted to “a big government program focused on churning out rules and processing paperwork, rather than engaging in meaningful analysis and informed decision-making.”
• THE BRIEF: A ‘priority chemical’ remains unregulated
But the department’s explanation fails to take into account why it didn’t take action on a family of chemicals for which most staff work had already been completed when the administration took office and whose manufacturers were among Commissioner Aho’s past lobbying clients.
When LePage was preparing to take office in December 2010, DEP staff had already completed a detailed brief to designate brominated fire retardants – BFRs – as “priority chemicals,” in order to “send a signal to industry ... that they need to consider other methods of fire safety without posing hazards to children’s health.”
Various BFRs, which are used in children’s blankets, clothes and toys, had already been identified as endocrine disruptors, carcinogens and reproductive toxins, according to the brief, which was to be submitted to the Board of Environmental Protection for its January 2011 meeting.
The brief never made it to the meeting, or any of the more than two dozen BEP hearings that have been held since.
LePage’s transition team – whose co-chairs included Robinson and the managing partner of Pierce Atwood, Gloria Pinza – asked the Baldacci administation to pull the BFR brief. They complied as a courtesy, according to Mark Hyland, who was director of the Bureau of Remediation and Waste Management at the time.
Once in office, the LePage administration never reintroduced the BFR paperwork. It could legally have done so at any time in its first year and a half in office, according to Belliveau, who tracked the program closely. Aho was in charge of the DEP for more than a year during this window, but the completed BFR paperwork sat dormant in her department’s files.
Asked why the governor’s team killed the BFR brief, LePage’s communications director attempted to blame it on Baldacci’s team. “In 2010, prior to the LePage administration, DEP decided not to pursue the naming of (BFRs),” Steele said in a written statement. “We cannot speak for the former administration.” He did not respond to follow-up questions sent June 3.
In 2007, Aho and her Pierce Atwood colleagues were lobbyists for the Dallas-based Bromine Science and Environmental Forum, an alliance of four chemical companies that produced BFRs, and fought against laws that restricted some of them.
BFRs have recently been identified as a likely cause of the high rates of cancer in firefighters, who inhale them when fighting house fires. In a newly published study in the journal Chemosphere, Susan Shaw, director of the Blue Hill-based Marine Environmental Research Institute, found concentrations of BFRs in San Francisco firefighters’ blood at levels two to three times that of the general population, and in some cases hundreds of times greater.
“We’re connecting the dots on why firefighters have such high rates of cancer and what chemicals are causing them,” says Shaw, “We should not be putting these toxic substances into furniture and television sets and certainly not in home and baby products.”
Various BFRs that would have been covered by the proposed rule have been banned by the European Union from consumer electronics and other electrical equipment. A United Nations body, the Stockholm Convention on Persistent Organic Pollutants, has voted for global bans on three of them.
“These have been identified as priority chemicals all over the world, and the Maine DEP would not have been going out on a limb at all in identifying this class of toxic and harmful chemicals,” says Matt Prindiville, the Rockland-based associate director of the Product Policy Institute, a policy and advocacy organization that seeks to reduce the environmental effects of consumer products. “But instead they decided to cave in to the chemical industry.”
• THE PERSONNEL SHIFT: Primary staffer is reassigned
The author of the BFR brief, Andrea Lani, fared little better.
The LePage administration took early action against Lani, who was the primary staffer responsible for implementing the Kid Safe Products Act.
She was reassigned to handle public records requests and replaced with a less-qualified employee in 2011, after she testified as a private citizen in favor of the ban on BPA. (Her story is told in more detail on Day 1 of the series.)
Shortly after reassigning Lani, Aho also eliminated the half-time data management position for the program, even though it cost taxpayers nothing, as it was entirely funded by fees paid by chemical manufacturers, according to Belliveau, who criticized these decisions in a June 2011 letter to Aho.
Aho also placed the program under the direct supervision of a political appointee, Ron Dyer, who was then the director of the DEP’s remediation and waste management bureau.
Aho declined to comment, and previously wrote Belliveau that she would not discuss her personnel decisions.
Other chemicals on the “high concern” list include familiar toxins such as formaldehyde, benzene and cadmium, and lesser-known substances such as the gasoline additive MTBE and four members of the paraben family, which are used as preservatives by the drug and cosmetics industries. It also includes three brominated fire retardants out of the more than 100 that would have been identified under the aborted submission created under the Baldacci administration.
Like phthalates, parabens are endocrine disruptors found in a wide range of products, including baby shampoos, makeup and lotions, but they disrupt female rather than male hormones.
“We know it binds to the estrogen receptors and that there are multiple animal studies documenting effects, but the epidemiology isn’t there yet to justify an outright ban,” says Deborah Rice, the toxicologist who compiled the 49-chemical list at the Maine CDC. “But the public has a right to know if it’s in stuff, that if they buy a cream for their baby, they can tell if it has parabens in it or not.”
“These are not chemicals that were drawn out of a hat; they have been identified after exhaustive examination by toxicologists and physicians and the Endocrine Society and on and on,” says Graham, the former CDC director, of the 49 chemicals on the list. “It seems like common sense to me to at least get some protections from them for the next generation of Maine people.”
Colin Woodard can be contacted at 791-6317 or at:
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Patricia Aho, commissioner of the Maine Department of Environmental Protection, is shown at a public hearing in the Hancock County town of Aurora earlier this month. In 2008, when she was lobbying for a number of corporate interests, Aho had fought to stop the Kid Safe Products Act from becoming law. And just weeks before she was appointed to the DEP, Aho was working as the principal lobbyist for the American Chemistry Council, which also opposed the law and has sought to weaken it.
Carl D. Walsh/Staff Photographer