Fluoride Action Network

Statutory Role of Regulatory Agencies on Water Fluoridation: Email from EPA’s Steven Neugeboren to Jill Jennings-McElheney

Used with permission of Jill Jennings-McElheney | Fluoride Action Network | May 6, 2016

From: Steven Neugeboren, Associate General Counsel, Water Law Office, U.S Environmental Protection Agency, Washington D.C.

To: Jill Jennings-McElheney of Georgia. Jill is a victim of water poisoning which included two of her pregnancies.  Her son is a childhood cancer survivor of that water poisoning. She is a Children’s Environmental Health Educator and Victims’ Rights Advocate including the right for consumer tap water to be free of fluoride.  Jill and her family, as well as her environmental justice community, drank highly contaminated well water for six years. The EPA knew their aquifer was contaminated with industrial toxicants; yet, chose to alter documents rather than disclose the harm and remove the neighborhood from a major public health hazard.

On May 6, 2016, at 5:39 PM, Neugeboren, Steven <> wrote:

Dear Ms. Jennings-McElheney

We have been in receipt of your email correspondence describing your concerns about the public health impacts of fluoridated water.  You have addressed your correspondence to me and others in the Water Law Office in EPA’s Office of General Counsel and various officials inside and outside the Agency.  We hear the public health concerns that you have been raising with us, as well as questions about EPA’s and HHS/FDA legal authorities.  Rather than continued piecemeal correspondence, we thought it would be best to provide below our office’s complete and final response to the legal issues raised by your correspondence.

First, I’d like to clarify the role that the EPA Office of General Counsel plays for the Agency, which in turn defines the scope of the issues with which we can provide you assistance.   We provide legal counsel to the various environmental program staff, management, and senior officials in the exercise of their statutory authorities, including the Safe Drinking Water Act.  In addition to providing legal counsel within EPA, we also sometimes communicate directly with the public regarding matters of statutory and regulatory authority, as we did in a letter to Mr. Gerald Steel on 2/14/2013 [1] , to which you have referred in your correspondence with us.

With regard to the legal issues you have been raising, the letter to Mr. Steel [1] explained EPA’s statutory role vis a vis fluoridation under the SDWA as follows:  “EPA does not have responsibility for substances added to water solely for preventative health care purpose, such as fluoride, other than to limit the addition of such substances to protect public health or to prevent such substances from interfering with the effectiveness of any required treatment techniques.”  While your correspondence has indicated that you find this response unsatisfactory, it is an accurate statement of our legal authority and there is nothing further in the way of legal analysis or conclusions that we can provide you on that topic.

I’d also like to address your stated impression that proper federal regulation of fluoridation has been delayed due to EPA’s “legal wrangling” with HHS/FDA over which agency has the responsibility to take action.   However, we have not engaged in, and currently are not engaging in, any such inter-agency discussions because the positions of the agencies regarding their authorities over fluoridation have been plainly articulated and are not in dispute.  As discussed above, we’ve clearly described our legal authority to you (though Mr. Steel), and FDA did the same, stating as follows:

“Congress did not intend for FDA to regulate the addition of fluoride to public drinking water for dental caries prevention as a drug under the FD&C Act.  Instead, Congress intended that the U.S. Environmental Protection Agency (EPA) regulate fluoride in public drinking water as a potential contaminant under the Safe Drinking Water Act (SDWA) of 1974 . . . . to protect against adverse health effects, and that within the limits thus set by EPA, state and local governments be permitted, but not required, to fluoridate public drinking water to help prevent dental caries.”

Letter to Ms. Jill Jennings McElheny from Dr. Wanda K. Jones [2], Principal Deputy Assistant Secretary for Health, Department of Health and Human Services (11/21/2014).   There is no inconsistency in the views of EPA and HHS.  Both agencies acknowledge that state and local governments make the decision, aided by CDC recommendations and other scientific and public health sources, whether and at what level to fluoridate their public water supplies, within the bounds of a maximum limit imposed in EPA’s National Primary Drinking Water Standards. [Our emphasis] See SDWA Section 1412 and 40 CFR Part 141.  As you know, those regulations are currently undergoing a review, as required by the Safe Drinking Water Act, and EPA’s determination whether to initiate further rulemaking on particular contaminants, including fluoride, is expected to be publically available this year.

In conclusion, because we consider the legal matters addressed above to be settled, we do not believe there is any additional assistance our office can provide to you.  We therefore request that you please remove us from your e-mails or other correspondence.  If you choose not to honor this request, please consider this our complete and final response, and you should not expect to receive any further correspondence from our office.  We will, of course, continue to advise the EPA Office of Water in its implementation of the Safe Drinking Water Act with respect to fluoride in public water supplies.

Steven Neugeboren
Associate General Counsel
Water Law Office
U.S Environmental Protection Agency

  1. February 14, 2013: Letter from Steven M. Neugeboren, Associate General Council, Water Law Office, at the Environmental Protection Agency, to Gerald Steel, PE, Olympia WA.
  2. November 21, 2014: Letter from Wanda K. Jones, DrPH, Principal Deputy Assistant Secretary of Health, to Ms. McElheney.