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Is Fluoridated Drinking Water a Risk? A Federal Court Allows Citizen Suit to Proceed Against EPA Concerning TSCA Oversight

A citizens group cleared the first major hurdle to obtaining a declaratory judgment compelling the U.S. Environmental Protection Agency to consider whether to regulate the fluoridation of drinking water supplies under Toxic Substances Control Act (TSCA)’s Section 6(a) when a federal judge denied the EPA’s motion to dismiss the citizen group’s petition for such a declaration. Consequently, the citizen suit will proceed in evaluating whether EPA must initiate proceedings to decide if it should issue a rule under Section 6 to impose regulatory controls on fluoridation of drinking water.

In particular, the plaintiffs argue that the ingestion of fluoride poses an unreasonable risk of neurotoxic harm to humans. Despite the EPA’s contentions to the contrary, the United States District Court for the Northern District of California held that the citizen group’s petition need not evaluate all conditions of use in seeking regulation of a chemical under Section 6(a), that the petition identified fluoridation chemicals as the chemical it sought to be regulated, and that the petition provided an adequate basis for its request for categorical treatment of fluoridation chemicals such that the motion to dismiss must be denied.

For background, the plaintiffs consist of a group of non-profit organizations and associations and individual parents suing on behalf of themselves and their minor children. Plaintiffs initially petitioned the EPA pursuant to TSCA’s Sections 6(a) and 21 for the issuance of a rule prohibiting the addition of fluoridation chemicals to drinking water supplies. The citizen group alleged that fluorides such as hydrofluorosilicic acid, sodium silicofluoride, and sodium fluoride are added to drinking water on a “mistaken premise” that ingestion of fluoride prevents tooth decay; however, plaintiffs allege that fluoride has the negative effects of a higher risk of dental fluorosis and “deleterious effects on the brain, including cognitive impairments and neurotoxicity.” Section 6(a) of TSCA authorizes the EPA to prohibit the use of a chemical if it determines the chemical poses an unreasonable risk to human health or the environment. TSCA’s Section 21 permits persons to petition the EPA to initiate proceedings for the issuance of a rule under Section 6 to impose regulatory controls on chemicals.

The EPA denied the plaintiffs’ petition on February 7, 2017. The EPA’s primary reason for denying the plaintiffs’ petition was it did not provide a “scientifically defensible basis” that fluoridation of drinking water caused any persons the harm it alleges the chemicals to cause. Additionally, the EPA denied the petition because, according to the EPA, it did not justify categorical regulation of fluoridation chemicals, it did not identify an appropriate Section 6 rule within the action, and it sought regulation of an entire category of fluoridation chemicals based on merely one condition of use, the fluoridation of drinking water.

Upon the EPA’s denial of its petition, the plaintiffs, in Food & Water, et al. v. U.S. Envtl. Prot. Agency, case number 17-2162, sought an order from the United States District Court for the Northern District of California compelling the EPA to initiate the process for its rule request, and the EPA sought a dismissal of the plaintiff’s action on the same grounds it denied the plaintiff’s petition to the Agency. Since the United States District Court for the Northern District of California denied the EPA’s motion to dismiss, the case will proceed. According to the court’s order, a hearing and further case management conference is scheduled for January 25, 2018.

This post was drafted by Ryan Pulkrabek, an attorney in the Kansas City, MO office of Spencer Fane LLP. For more information, visit spencerfane.com.