EPA Must Consider Banning Drinking Water Flouridation

A federal judge in California has ruled that EPA wrongly dismissed a petition to ban fluoridation of drinking water under the Toxic Substances Control Act (TSCA).  Food & Water Watch, Inc. v. EPA, N.D. California, 12/21/2017.  The Petitioners sought a determination by EPA to ban the use of fluoride in drinking water.  EPA dismissed the petition because it sought only to ban a single use of a chemical, finding that Section 21 of TSCA requires that a Section 21 petition seek to ban all uses of a chemical, rather than a single use.  The Court disagreed, holding that the new TSCA amendments allow citizens to petition EPA to regulate single uses of chemicals.  The Court partially relied on the recent final rule issued by the Trump EPA, the so-called framework rule on how EPA will evaluate specific chemicals for possible regulation, in which the Trump EPA provided that EPA has discretion to determine which uses of a chemical to assess.  The ruling finds that “a natural reading of the language suggests a citizen petitioner need only present facts demonstrating that a chemical substance poses an unreasonable risk due to one or more conditions of use that are of concern to the petitioner,” and that the Court’s interpretation is consistent with the new framework rule.  The Court’s ruling is the first published decision under the amended TSCA on citizen petitions to regulate specific uses of chemicals.  The petition to ban the use of fluoride in drinking water now goes back to EPA for further action.

For more information on the Food & Water Watch case or on chemical regulation under TSCA, contact Steve O’Day or Vickie Rusek.

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