Suit Over EPA's Rejection Of Fluoride Ban Claims TSCA Misinterpretation

April 19, 2017

Environmentalists and public health groups are suing EPA over its rejection of a petition seeking a Toxic Substances Control Act (TSCA) ban on drinking water fluoridation, arguing the agency's denial “erroneously interpreted” language in the overhauled TSCA by placing unwieldy burdens on petitioners to justify their request for a ban.

EPA in its petition denial said that a ban on fluoridation -- a single use of a class of chemicals -- was at odds with TSCA's mandate to review specific chemicals and address risks from all their uses. But the groups argue that EPA's denial is based on flawed scientific assessment of fluoride's neurotoxic risks and an inaccurate reading of the toxics law update enacted last June, known as the Frank R. Lautenberg Chemical Safety for the 21st Century Act.

“EPA (A) erroneously interpreted the Frank R. Lautenberg Chemical Safety for the 21st Century Act as placing onerous new evidentiary burdens on citizen petitioners, (B) dismissed studies relied upon by Plaintiffs on demonstrably false grounds, and (C ) failed to consider the research on fluoride neurotoxicity through the framework of its Guidelines on Neurotoxicity Risk Assessment,” petitioners say in their April 18 lawsuit over the denial.

The suit, filed in the U.S. District Court for the Northern District of California, by the Fluoride Action Network (FAN), Food and Water Watch (FWW), and others, asks the court to declare that they have shown fluoridating water poses “an unreasonable risk of injury” to human health or the environment and mandate the ban.

Observers tracking EPA's implementation of the new TSCA law have said a lawsuit challenging the agency's denial of the fluoride petition would provide a test case for the agency's interpretation that petitioners must provide a comprehensive analysis of all uses of a chemical in order to seek a restriction on a particular use.

“This asserted view, that only a comprehensive risk evaluation considering all conditions of use will suffice, presents a very high threshold for action -- and seemingly an impossibly high threshold to move EPA to act," officials with the law firm Bergeson & Campbell said in a March 7 blog post.

FAN and FWW together with the American Academy of Environmental Medicine, the International Academy of Oral Medicine and Toxicology petitioned EPA last November seeking a ban on the decades-old practice of adding fluoride to drinking water, a process done to reduce cavities.

The groups argued that fluoride in drinking water often exceeds doses repeatedly linked to IQ loss and other neurotoxic effects, and that TSCA allows for a "more targeted" ban than under federal drinking water law. EPA, in its most recent six-year review of drinking water contaminants as required by the Safe Drinking Water Act, did not consider fluoride a candidate for review of its drinking water standard.

The petition did not mention that water fluoridation is a local decision, made by individual water utilities and localities upon decades-old recommendations from the Public Health Service to promote dental health.

Petition Denial

In its Feb. 27 denial, EPA said that the request to prohibit drinking water fluoridation -- a single use of a chemical -- was inconsistent with the agency's obligation under the updated TSCA to conduct comprehensive reviews of specific chemicals and address risks from all uses.

The novel rationale for rejecting the request under TSCA 21 drew the attention of the industry observers who suggested in their recent blog that the interpretation essentially obviates the purpose of section 21 petitions for agency action under section 6, which has traditionally been to draw the agency's attention to a chemical hazard that had not previously been a focus.

EPA's denial outlined general obligations petitioners should meet in seeking chemical restrictions under the updated version of the toxics law. “This requirement includes addressing the full set of conditions of use for a chemical substance and thereby describing an adequate rule under TSCA section 6(a) -- one that would reduce the risks of the chemical substance 'so that the chemical substance or mixture no longer presents' unreasonable risks under all conditions of use,” the agency said.

“Rather than comprehensively addressing the conditions of use that apply to a particular chemical substance, the petition requests EPA to take action on a single condition of use (water fluoridation) that cuts across a category of chemical substances (fluoridation chemicals),” the agency added.

Bergeson and Campbell attorneys said that EPA's denial is "essentially arguing that since EPA must assess 'all conditions of use' in any control rule they might promulgate, then any outside petition must include all of the same homework before it can be granted.”

In the April 18 lawsuit, the groups argue that recent studies show fluoride at doses present in drinking water pose neurodevelopmental risks to children and that if EPA had followed its own guidelines for reviewing neurotoxicity data it would have concluded action is necessary to reduce unreasonable risks to people from fluoridation of drinking water.

The groups cite a 2006 National Research Council review that said “it is apparent that fluorides have the ability to interfere with the brain,” and argue that numerous additional studies have since backed that conclusion.

They also say that susceptible populations, including infants fed formula reconstituted with drinking water, are at increased risk of neurotoxic effects from drinking water fluoridation, which is a decades-old practice that predates topical applications of the substance to prevent cavities which preclude the risks associated with ingestion. -- Dave Reynolds (dreynolds@iwpnews.com)

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