Fluoride Action Network

Environmentalists Cite TSCA Rule Changes In Bid To Maintain Fluoride Suit

October 26th, 2017 | By Maria Hegstad

Environmentalists are urging a federal court to allow their suit against EPA over its denial of their petition to ban drinking water fluoridation to continue, arguing among other things that the agency’s changes to the final framework rules implementing the 2016 statutory reform of the Toxic Substances Control Act (TSCA) bolster their case.

In an Oct. 25 reply motion, the groups argued, among other things, that the agency’s requirement that the petitioners identify all conditions of use before it would accept a petition is at odds with the statute as well as EPA’s recent interpretation in the framework rules that the agency has discretion to narrow the conditions of use it will consider when assessing chemicals’ risks.

And, they added, since EPA’s stance has not been subject to administrative proceedings, the agency should not be granted deference.

“EPA’s contention that citizen petitioners must identify all conditions of use is not only at odds with the plain meaning and legislative intent of TSCA, but EPA’s own recent interpretation of the Act. At bottom, EPA’s untenable statutory interpretation, which has never been subject to notice and comment rulemaking, is little more than a litigating position which warrants no deference from this Court,” the reply motion says.

The environmentalists’ brief responds to EPA’s motion to dismiss the suit, Food & Water Watch Inc., et al, v. EPA, where the agency defended its views on the key issue of which chemical uses must be considered in TSCA assessments and possible future regulation.

The issue is complicated because the agency’s final TSCA framework rules gave EPA greater discretion to narrow risk assessments by specific uses, but also to act on individual uses of chemicals.

By contrast, EPA last summer denied the groups’ 2016 TSCA section 21 petition seeking a ban on fluoridation — a single use of a class of chemicals — saying the petitioners needed to evaluate all of the chemical’s uses.

And in its motion to dismiss, EPA reiterated its view that the petition — filed by Food and Water Watch (FWW), the Fluoride Action Network (FAN), and others — was at odds with TSCA’s mandate to review chemicals and address risks from all their uses.

EPA’s critics and plaintiffs in the case have argued that EPA’s rejection of the petition on the grounds that it did not address all uses was at odds with the position the agency took last summer when it issued the final risk evaluation, prioritization and other framework rules for implementing the new law to address existing chemicals.

“Insofar as EPA is now arguing that only an unreasonable risk determination for the chemical as a whole is sufficient to trigger rulemaking under Section 6(a), its position is contrary to the approach EPA itself has taken in its July 20 rule establishing chemical risk evaluation procedures under the amended Act,” the reply motion states.

The motion notes that other sections of the rules allow EPA to make an unreasonable risk determination for specific conditions of use and conclude that “contrary to its position in this case, EPA recognizes that its rulemaking obligation under Section 6(a) may be triggered by a determination that a single condition of use presents an unreasonable risk, irrespective of how it ultimately evaluates other conditions of use. Nothing in Section 21 suggests that petitioners who seek to compel EPA to conduct a rulemaking based on an equivalent showing of unreasonable risk for a particular use must meet a higher standard.”

Chevron Deference

FWW also seeks to rebut EPA’s argument that its interpretation of TSCA is due deference by the court under the 1984 Chevron v. Natural Resources Defense Council ruling, arguing among other reasons that “although EPA claims reliance on EPA’s risk evaluation rule to support its interpretation, the rule was promulgated . . . several months after the petition denial.”

“The rule changed in important respects between what was proposed in January and what was promulgated in July; in fact, as promulgated, the rule actually conflicts with the basis EPA has cited for denying the petition.”

FWW notes that the final version of the rule, which granted EPA discretion to narrow conditions of use, “actually conflicts” with the EPA’s petition denial, while the proposed version of the rule, which required EPA to consider all uses, was consistent with the denial.

FWW’s attorney, Michael Connett, argues that with the changes in the final rule, “EPA has reserved for itself discretion, allowed industry to” petition the agency to conduct risk evaluations of chemicals’ selected uses “and yet it asks citizens without exception to” identify and evaluate risks from all of a chemical’s uses. “It’s certainly selective and there’s no reason for that selectivity.”

The Natural Resources Defense Council (NRDC) and the Safer Chemicals Health Families coalition have also sought to file an amici brief with the court in support of FWW’s argument that reformed TSCA Section 21 does not require petitioners to address all conditions of a use of a chemical that they are asking EPA to address.

Both environmental groups are among the petitioners in separate suits against EPA regarding changes to the final framework rules, but the amici brief does not appear to address the issue of EPA’s change in position on conditions of chemicals’ use, only mentioning the suits in a footnote.

“Nothing in this statutory scheme requires a [TSCA] section 21 petition to evaluate every potential risk posed by every use of a chemical. Congress could easily have written such a requirement into section 21. It did not do so,” NRDC and the coalition argue in their amici brief.

In a footnote, NRDC and the coalition note EPA’s change in uses interpretation in its rules during the course of the fluoride case. “Shortly before EPA denied the citizen petition at issue in this case, EPA asserted [in the draft rules] that a TSCA section 6(b) risk evaluation ‘must encompass all known, intended, and reasonably foreseen activities associated with the subject chemical substance.’ . . . EPA has since reversed course, announcing its belief that it ‘may . . . exclude [from a section 6(b) risk evaluation] certain activities that EPA has determined to be conditions of use in order to focus . . . on those exposures that are likely to present the greatest concerns’ [in the final rules]. . . . Amici do not believe that limiting interpretation is permissible, and have challenged it.”

Connett acknowledges that the environmental groups’ position that EPA must consider all conditions of use in prioritizing and assessing chemicals’ risks could be seen as conflicting with FWW’s position that section 21 petitions must not address all uses. But he argues that the positions are compatible.

“EPA is being challenged by environmental health groups on this final rule,” Connett notes. “We’re arguing now that citizens don’t need to consider all conditions of use. The reason the [positions] are compatible is that we want EPA to consider all uses … we don’t want them to overlook” a use that presents unreasonable risk. “All a citizens’ petition is saying is, ‘Here’s a use [that presents unreasonable risk] — do something about it.’”

A hearing on EPA’s motion to dismiss is scheduled for Nov. 30.

*Original article online at https://insideepa.com/daily-news/environmentalists-cite-tsca-rule-changes-bid-maintain-fluoride-suit