Fluoride Action Network

EPA Seeks To Dismiss Fluoride Suit, Defending Stance On TSCA ‘Uses’ Issue

Source: Inside EPA | September 26th, 2017 | By Maria Hegstad

EPA is urging a federal court to dismiss environmentalists’ suit challenging its rejection of their petition seeking to ban the practice of fluoridating water under the Toxic Substances Control Act (TSCA), with the agency defending its views on the key issue of which chemical uses must be considered in TSCA assessments and possible future regulation.

The suit, Food & Water Watch Inc., et al, v. EPA, filed in the U.S. District Court for the Northern District of California, challenges EPA’s decision last February to deny the groups’ 2016 petition seeking a ban on fluoridation — a single use of a class of chemicals.

In a Sept. 25 motion to dismiss, the agency 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, and is insufficiently specific in describing the chemicals it wants EPA to act upon.

The petition requested that EPA regulate ‘fluoridation chemicals’ but did not identify the specific chemical substances for which action was requested,” the motion to dismiss states. It adds that the the petition “did not provide any analysis of any conditions of use of the chemical substances covered by the petition other than use in fluoridating drinking water.”

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 on the issue when it issued risk evaluation, prioritization and other framework rules for implementing the new law to address existing chemicals.

There, the agency gives itself discretion to determine which conditions of use the agency must include in its evaluation of a chemical.

EPA’s position is “extremely disingenuous,” says an environmental attorney not involved with the case.

The source points to EPA’s final risk evaluation rule, where the agency makes “clear they have broad discretion to pick the uses they address in risk evaluations and here in this brief they are saying that risk evaluations need to be comprehensive except perhaps for a few uses that might be excluded at EPA’s discretion.”

“It seems they’re trying to straddle the fence on this in a way that gives them the best of both possible worlds,” the source adds.

A range of environmental groups have since sued EPA over the risk evaluation and other framework rules, which describe how the agency will prioritize chemicals for assessment and evaluate them. They argue that the final rules are substantially different from the draft rules released shortly before the end of the Obama EPA, and that they do not follow statute in their narrowing of the uses that EPA must consider in performing its risk evaluations.

And Michael Connett, an attorney for the plaintiffs, indicated he would make this an issue if it is raised as part of EPA’s defense in the motion to dismiss, in a recent interview with Inside EPA. Plaintiffs have until Oct. 25 to respond to EPA’s motion, and then EPA is provided an opportunity to respond. EPA has requested a Nov. 30 hearing date over the motion.

EPA Discretion

But EPA in the motion to dismiss continues to re-state its original argument that the petition was insufficiently comprehensive in addressing all uses of fluoride chemicals. EPA also tries to argue that its own position, that it has discretion over which uses to evaluate, is consistent.

“In promulgating the regulations required by the Amendments to implement the new risk evaluation procedure, EPA explained that, while the statute gives the Agency some discretion to limit the conditions of use included within the scope of its evaluation, ‘[a]s EPA interprets the statute, the Agency is to exercise that discretion consistent with the objective of conducting a technically sound, manageable evaluation to determine whether a chemical substance — not just individual uses or activities — presents an unreasonable risk,” EPA argues.

Further, EPA states that it “made clear that, while EPA could, in its discretion, exclude from the risk evaluation conditions of use that are de minimis or otherwise insignificant and therefore do not require evaluation, the evaluation must include those activities that are necessary to determine whether the substance presents an unreasonable risk.”

EPA argues that Congress intended that section 21 petitions requesting that EPA take action using its section 6(a) authority, as in the case of the fluoride petition, present risk evaluations consistent with what EPA would conduct. If EPA were to accept a petition that does not address all uses, it would require the agency to conduct a risk evaluation of those other uses, placing undue hardship on the agency, EPA argues.

“Congress could not have intended this result, i.e., that an administrative petition addressing only a single use could compel EPA to undertake a risk evaluation for a chemical substance that had not been through the risk prioritization process,” the motion argues. The motion points to the “considerable demands” already placed on EPA resources as the agency works to implement the new program while beginning evaluation of the first 10 chemicals it was directed by statute to start in that process.

“Because the grant of a section 21 petition requesting a TSCA section 6(a) rule has the same effect as a finding of unreasonable risk by EPA . . . i.e., it requires EPA to commence a rulemaking to eliminate the unreasonable risk posed by the chemical substance, the statutory scheme would be substantially undermined if section 21 petitions were not required to present a scientific basis for action that is reasonably comparable, in its quality and scope, to a risk evaluation by EPA under TSCA section 6(b),” the brief states.

It continues by arguing that at “the very least, a petitioner must identify the chemical substance(s) at issue, address the conditions of use of the chemical substance(s), and either evaluate the risks associated with those conditions of use or explain why those conditions of use are insignificant or otherwise unnecessary to include within the scope of a risk evaluation. If a petition does not do so, it does not provide the basis for EPA to proceed with a section 6(a) rulemaking that complies with the statute.”

In a footnote, EPA states that petitioners are free to re-submit their petition in future, once they have addressed the issues identified in the agency’s denial of the petition.

EPA Being ‘Disingenuous’

But the attorney not involved in the case argues that EPA’s position in the case appears to be at odds with language in the risk evaluation rule.

For example, the source points to language in the rule that states that “in cases where EPA has sufficient information to determine whether or not the chemical substance presents an unreasonable risk under particular conditions of use, the Agency may issue an early determination for that subset of conditions of use, while EPA continues to evaluate the remaining conditions of use.”

The source says this indicates “that EPA can in fact make determinations of unreasonable risk for individual uses, even before it completes the entire risk evaluation. It might decide a particular use presents an unreasonable risk, or that it doesn’t.” This means that “plaintiffs’ attorneys can find plenty in the risk evaluation rules to argue that EPA is just being disingenuous here, not explaining how they use conditions of use in risk evaluations.”

The attorney also notes that EPA’s interpretation of TSCA section 21 places an unduly high bar on petitioners — as plaintiffs maintain. “If you go with EPA’s interpretation, section 21 would be unworkable,” the source says. “Congress included a citizen’s remedy in the statue for a reason.”

*Original article online at https://insideepa.com/daily-news/epa-seeks-dismiss-fluoride-suit-defending-stance-tsca-uses-issue