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EPA, plaintiffs battle over landmark TSCA fluoridation trial schedule

September 24, 2019

Environmentalists and EPA are battling over whether a judge should delay a first-time Toxic Substances Control Act (TSCA) trial, slated to begin early next year, to determine whether the agency should ban fluoride, with the plaintiffs charging that EPA’s request to delay the trial would “derail the entire schedule of this case.”

The dueling over the trial marks the latest steps in the landmark TSCA suit, Food & Water Watch Inc., et al, v. EPA, where environmentalists and public health groups are seeking to force EPA to grant their petition seeking to ban the practice of treating drinking water with fluoride.

The once-rarely used TSCA section 21 citizen’s petition process allows the possibility for a de novo trial before a judge, an option Judge Edward Chen, of the U.S. District Court for the Northern District of California, allowed to move forward last year.

But in a Sept. 19 request, EPA asked the court to extend limited expert discovery in the case by 65 days. EPA argues there are two “new developments … that now merit a brief extension of time,” including the National Toxicology Program’s completion of its systematic review of fluoride and neurodevelopmental effects and “EPA supplemented its expert designations and disclosures by disclosing the identity of one additional expert witness who is not required to submit an expert report.”

EPA states that the systematic review, a project underway at the National Institute for Environmental Health Sciences for more than two years that will result in an NTP monograph, “has been submitted to the National Academies of Sciences (NAS) for peer review."

EPA adds that the document will be released publicly 10 days before NAS’ peer review meeting, tentatively scheduled for the first week in November.

“EPA seeks an extension of time for limited expert discovery to minimize the inefficiency and/or confusion that could otherwise result from proceeding with litigation prior to public disclosure of the NTP Monograph,” the agency argues. “The public release of the NTP Monograph will likely necessitate supplementation of either parties’ expert disclosures … Delay and inefficiency would occur if the parties were forced to begin dispositive motions briefing prior to the record being complete.”

EPA also argues that extending the timeline would allow it more time to “further develop the record concerning EPA’s supplemental expert designations and disclosures,” particularly regarding a co-author to some epidemiology studies also written by two other scientists that EPA has already deposed.

But in a Sept. 23 reply brief, the plaintiffs oppose EPA’s request, arguing that the agency agreed to the existing schedule one week before making the motion and that the request is “based on a draft review that EPA has known about for years, and an unjustified, last-minute disclosure of an expert whom EPA knew about since at least June 27, 2019."

The plaintiffs also argue that “EPA has been aware of the NTP’s … monograph for the entirety of this litigation. EPA is not only a member of NTP’s Executive Committee but provided comments to the NTP about the review prior to the review’s commencement in late 2016. At no point, however, during the 2+ years of this litigation has EPA expressed any concern that the NTP review could affect the scheduling of this case.”

Further, they note that the pending NTP monograph is a draft, not a final, document, and “the release of a draft review provides no justification for derailing the entire schedule, including the trial date. Federal courts have long recognized the reduced trustworthiness of draft government reports, holding them inadmissible under Federal Rule of Evidence 803.”

Plaintiffs also argue that EPA’s decision not to contact the co-author, Dr. Martinez-Mier, until the eve of the court-ordered expert deadline “is not a permissible basis for EPA to derail the schedule of this case.” They argue that in waiting to contact Martinez-Mier until September, EPA violated two court-ordered discovery deadlines and without providing “substantial justification.”

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