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March 22, 2021

Coalition Sues for Stronger Health Protections from Toxic Flame Retardant Chemical

Lawsuit challenges Trump-era rule that exposes children, workers, and communities to indefinite toxic exposures

Contacts

Katherine O’Brien, Earthjustice, (406) 586-9692, ext1929, kobrien@earthjustice.org

Matt Mais, Yurok Tribe, (707) 954-0976, mmais@yuroktribe.nsn.us

Pamela Miller, Alaska Community Action on Toxics, (907) 308-1629, pamela@akaction.org

Tracy Gregoire, Learning Disabilities Association of America, (207) 729-0266, tracy@ldaamerica.org

Rachel Weintraub, Consumer Federation of America, (202) 904-4953, rweintraub@consumerfed.org

Kathryn Cruz, Center for Environmental Transformation, (856) 365-8111, environment@cfet.org

San Francisco, CA

On Friday, a diverse coalition advocating for stronger health protections from the toxic and persistent flame retardant decabromodiphenyl ether (DecaBDE) sued the U.S. Environmental Protection Agency (EPA) for violating a federal law that requires EPA to take all practicable measures to limit exposure to some of the most dangerous chemicals in commerce, adding to a previous challenge filed in January. The Yurok Tribe, Alaska Community Action on Toxics, Learning Disabilities Association of America, Consumer Federation of America, and the Center for Environmental Transformation are asking the U.S. Court of Appeals for the Ninth Circuit to invalidate loopholes in EPA regulations that would expose infants and children, workers, indigenous cultural and subsistence practitioners, and communities across the country to DecaBDE for years to come and frustrate efforts to get the dangerous chemical out of consumer products and the environment. The coalition is represented by Earthjustice.

“Congress directed EPA to act fast and act aggressively to protect Americans from DecaBDE and similar chemicals that are highly toxic and long lasting,” said Earthjustice attorney Katherine O’Brien. “But in the final days of the Trump administration, EPA signed a rule that allows this dangerous chemical to be used in our children’s toys and dumped in our communities without establishing any safeguards to protect our health.”

DecaBDE is a toxic chemical that is used as a flame retardant in many consumer products, including electronics, curtains and upholstered furniture, and car parts. Plastic containing DecaBDE is also recycled into new consumer products — including toys marketed for infants and children, travel mugs, and kitchen utensils. EPA acknowledges that DecaBDE is highly toxic, builds up in the human body over time, and does not break down readily in the environment. Scientific studies link DecaBDE exposure to serious health effects including cancer, developmental harm, neurological harm, liver damage, and damage to the immune system. The chemical is also toxic to fish and contaminates soil and water when it leaches out of landfilled waste.

In its 2016 overhaul of the Toxic Substances Control Act — which Congress enacted with overwhelming bipartisan support — Congress singled out a class of highly toxic and long-lasting chemicals that includes DecaBDE for expedited regulation to protect human health and the environment. The statute requires EPA to regulate the full life cycle of these chemicals — from manufacturing to use to disposal — and take all practicable steps to reduce Americans’ exposure in their homes, workplaces, and the environment. But EPA’s newly issued regulations for DecaBDE fail to impose any restrictions or safeguards to protect people from exposure to the chemical when it is recycled into new consumer products or when products containing DecaBDE are landfilled or incinerated. EPA also granted years-long compliance delays that will allow manufacturers to continue using DecaBDE in replacement parts for cars, trucks, and airplanes, perpetuating exposures to workers and the broader public and allowing ongoing bioaccumulation in fish and the environment.

DecaBDE poses heightened risks to infants and children — who tend to inhale and ingest more of the chemical in their homes and schools and are more vulnerable to its health effects — as well as communities that practice subsistence fishing and hunting, communities where products containing DecaBDE are processed or disposed of, and workers who manufacture or work with products that contain the chemical. And while use and disposal of DecaBDE harms communities nationwide, it disproportionately affects indigenous peoples, including members of Alaska’s northern and Arctic Indigenous Nations and the Yurok Tribe, because of the chemical’s ability to migrate long distances in the atmosphere and its tendency to accumulate in fish and marine mammals that are a vital and traditional food source for indigenous peoples. Accordingly, the Biden administration has identified EPA’s existing regulation for DecaBDE as potentially inconsistent with the administration’s commitments to protect Americans from toxic chemicals and advance environmental justice. To date, however, the administration has not addressed the dangerous loopholes in EPA’s regulation that are the focus of the lawsuit.

Quotes from our clients:

“DecaBDE is highly toxic and poses serious risks to human health,” said Joseph L. James, the Chairman of the Yurok Tribe. “It is time to put stringent limits on the use of DecaBDE, so the next generation doesn’t have to bear this burden. The long-term wellbeing of people and the future of the planet depend on it.”

“Our own community-based and published scientific research shows that DecaBDE is found in our homes in the Arctic, our traditional foods, and in our bodies,” said Vi Waghiyi, Yupik mother and grandmother, and tribal citizen of the Native Village of Savoonga on Sivuqaq (St. Lawrence Island) and Environmental Health and Justice Director with Alaska Community Action on Toxics. “We found Deca-BDE in 100% of household dust samples and human blood serum samples and it was present in significant levels in fish samples from freshwater lakes and streams of our Island. Our Yupik communities are located on an Island in the northern Bering Sea in the Alaskan Arctic, far from manufacturing sources. If communities such as mine are exposed to this dangerous chemical, it threatens the health of people everywhere.”

“As a mom of a child with autism and ADHD, the last thing I want to expose my son to is DecaBDE or other chemicals that harm children’s brain health,” said Tracy Gregoire, Healthy Children Project Director for the Learning Disabilities Association of America. “We need to address the whole life cycle of chemicals like DecaBDE in order to protect the most vulnerable which includes children, pregnant women, and people of color.”

“Flame retardants like DecaBDE pose chronic hazards to consumers because of their physical, chemical and biological properties. These hazards are well documented,” stated Rachel Weintraub, Legislative Director and General Counsel with Consumer Federation of America. “The EPA is required to act to protect Americans from this hazard. We urge them to act immediately.”

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