As the Obama administration launches a broad investigation of flame retardants used in furniture and other household goods, the nation's top environmental regulators are running into the limitations of a federal law that makes it practically impossible to ban hazardous chemicals.
Even assessing the health risks of some of the flame retardants will be difficult, officials say. The 1976 Toxic Substances Control Act, the only major environmental law that hasn't been updated since it was enacted, allows chemical manufacturers to skip evaluating the safety of their products before putting them on the market.
So little is known about 16 of the 20 flame retardants targeted by the U.S. Environmental Protection Agency that officials say they will be forced to estimate potential hazards by running computer models and comparing them with similar chemicals, not by analyzing actual health and safety studies.
The law also gives manufacturers broad powers to conceal the names and physical properties of chemicals as trade secrets. As a result, four flame retardants on the EPA's list are identified only as "Confidential A," "Confidential B," "Confidential C" and "Confidential D" in the agency's public documents. EPA officials are legally barred from sharing information about those chemicals with other federal agencies, independent scientists, state health departments and the public.
James Jones, the EPA's top chemical safety official, said the dearth of information highlights the need for sweeping changes in the law.
"We're going to evaluate them all for safety, and we'll do what we are able to do under the law to ensure Americans are safe," Jones said. "But we need tools to allow us to act more quickly."
If recent history is any guide, the EPA and advocates for safer chemicals face an uphill battle to revamp the law.
Sens. Frank Lautenberg of New Jersey, Dick Durbin of Illinois and other Democrats this month introduced the Safe Chemicals Act, the latest version of chemical reform legislation first proposed in 2005. Another version of the bill advanced out of committee last year but wasn't called for a floor vote amid strong anti-EPA sentiment from Republicans and a handful of Democrats.
Like earlier versions, the legislation would require chemical companies to provide more health and safety information about their products, restrict manufacturers from keeping that data secret and make it easier for the EPA to force hazardous compounds from the marketplace.
The flame retardants on the EPA's list are examples of how the chemical industry has shifted over time from one worrisome product to another with little or no study about potential hazards. Widely used in furniture, baby products, electronics and other goods, flame retardants escape over time and settle in household dust that people ingest, especially young children who play on the floor.
"Generations of Americans have been asked to tolerate exposure to potentially toxic chemicals in everything from their furniture to their clothing," Durbin said. "We need to do more than take the chemical industry at its word."
Chemical safety reform also came up during recent confirmation hearings for Gina McCarthy, an EPA official nominated by President Barack Obama to lead the agency. McCarthy promised to work with both parties "to reauthorize our antiquated chemical safety laws so they provide a clear, fair set of rules for industry and certainty for consumers that their products are safe."
The American Chemistry Council, the industry's chief trade group, says it supports the idea of a new chemical safety law but steadfastly opposed earlier versions of the Lautenberg legislation. In a statement released after the latest version was introduced, the group said "a sensible, strong and workable bipartisan solution ... is more important than ever."
An industry-backed alternative from Republican senators might be in the works, according to environmental groups involved in the debate on Capitol Hill. Such legislation might lead to a compromise or, more likely, split the Senate along party lines and thwart another chance to change the law.
The EPA acknowledges it knows little, if anything, about the safety of most of the 84,000 industrial chemicals in commercial use in the United States. Unlike European standards, which generally require companies to prove the safety of their chemicals before use, U.S. law requires manufacturers to submit safety data only if they have it.
Most don't, records show.
The EPA can require studies of new chemicals that it thinks could affect people's health. But the agency rarely does so, and the research doesn't need to be completed before the chemicals are sold.
To ban a chemical already on the market, the EPA must prove that it poses an "unreasonable risk." Federal courts have established such a narrow definition of "unreasonable" that the government couldn't even ban asbestos, a well-documented carcinogen that has killed thousands of people who suffered devastating lung diseases.
"Science has advanced dramatically since the law was written," said Linda Birnbaum, a veteran government scientist who leads the National Institute of Environmental Health Sciences. "We should be using all of the new science and not be locked into studies and approaches that were state of the art 30 or 40 years ago."
Regardless of what happens in Congress, the EPA said it will use its limited authority under existing law to assess the risks of several flame retardants, including two ingredients in a mixture the agency promoted as safe nearly a decade ago and now is widely sold under the brand name Firemaster 550. Those chemicals have shown up in household dust and wildlife across the world.
Last year, the Tribune documented the government's conflicting messages about Firemaster 550 as part of an investigation that revealed a deceptive, decadeslong campaign by the chemical and tobacco industries to increase the use of flame retardants. Promoted as lifesavers, the chemicals actually provide no meaningful protection from furniture fires, according to government and independent studies.
The EPA approved Firemaster 550 even though the manufacturer's own health studies found that exposing rats to high doses can lower birth weight, alter female genitalia and cause skeletal malformations such as fused vertebrae. A study published last year by Heather Patisaul, a North Carolina State University toxicologist, and Heather Stapleton, a Duke University chemist, suggested the flame retardant could trigger obesity, anxiety and other problems at significantly lower levels.
Chemtura, the Philadelphia-based company that makes the flame retardant, says Firemaster 550 is safe. In a statement posted on its website, the company says it introduced the chemical mixture because it offered a "better environmental profile" than penta, a flame retardant it voluntarily withdrew from the market after studies found it builds up in people and triggers health problems.
In addition to a pair of chemicals in Firemaster 550, the EPA will investigate four similar compounds, including two that are listed as confidential.
The EPA also will review three forms of a flame retardant linked to cancer that Tribune testing last year found in three popular brands of baby mattresses.
Manufacturers voluntarily removed one of the chemicals, TDCPP, from children's pajamas in the late 1970s after researchers found it could mutate DNA. California lists the chemical as a known carcinogen.
But manufacturers can legally add it to other products, and a study by Stapleton last year suggested that TDCPP is the flame retardant most commonly added to household furniture cushions.
Another chemical under review by the EPA, hexabromocyclodecane, or HBCD, has been recommended for a worldwide ban by the Stockholm Convention on Persistent Organic Pollutants, an international treaty organization that targets dangerous compounds.
In a statement, the American Chemistry Council said it is "committed to supporting EPA efforts toward implementing a transparent and science-based chemical assessment process for priority chemicals." Targeting nearly two dozen flame retardants "shows the agency already has a great deal of authority to evaluate and regulate chemicals under current laws," a spokesman said in an emailed response to questions.
But Jones of the EPA said the agency doesn't have enough information to conduct a formal risk assessment of eight of the flame retardants on its list. It plans instead to request and collect data that could lead to a more thorough investigation.
If the agency concludes that any of the flame retardants pose significant risks, Jones said, the best it likely can do is negotiate with manufacturers to phase out the chemicals voluntarily.
The EPA brokered similar deals to stop production of penta, octa and deca — flame retardants from a family of chemicals known as polybrominated diphenyl ethers, or PBDEs. But scientists increasingly are raising alarms about chemicals introduced as substitutes.
"They are trying to do the best they can under a very flawed law," said Richard Denison, a senior scientist at the Environmental Defense Fund, a nonprofit group that backs the Lautenberg legislation. "If the EPA fails again to do anything about these hazardous chemicals, it just shows why we need a new law."