USA: EPA Should Reexamine Fluoridated Water Risks-Judge Says

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USA: EPA Should Reexamine Fluoridated Water Risks-Judge Says

Postby pfpcnews » Thu Jun 18, 2020 11:43 pm

EPA Should Reexamine Fluoridated Water Risks, Judge Says

Law360 - June 17, 2020

By Hannah Albarazi

Law360, San Francisco (June 17, 2020, 7:59 PM EDT) -- A California federal judge overseeing a bench trial challenging fluoridation of drinking water suggested during closing arguments Wednesday that he hold off ruling so that the EPA can reevaluate fluoride's risks, saying the agency apparently used the wrong standard and hadn't considered additional information raised at trial.

"Doesn't it make sense to have the agency take a second look?" U.S. District Judge Edward Chen asked attorneys for the U.S. Environmental Protection Agency and the citizens groups suing the agency under the Toxic Substances Control Act.

The judge's proposal came just moments after he heard closing arguments in a two-week bench trial via videoconference over whether the level of fluoride in community drinking water in the U.S. presents an unreasonable risk to public health.

Judge Chen floated the idea that instead of him issuing a ruling right out of the gate, the EPA could have time to reexamine the fluoridation issue. He said the agency could do so with the benefit of all the new scientific studies that have come out since citizens' groups filed their Toxic Substances Control Act petition to ban fluoridation in 2016, and that this time around the EPA could use the proper standard of review.

"The point is, what was presented to the EPA is a very, very different record than what I have now," Judge Chen said, noting that after hearing the evidence presented at trial, he has concluded that "there is serious evidence here" and that new studies are raising "serious questions" about the health effects of fluoride on human brain development.

The judge said it's undisputed that fluoride can, at some level, be a neurological hazard. The EPA doesn't dispute that, but what has been hotly disputed at trial is the level at which a neurological hazard exists.

"It occurred to me," Judge Chen said, "that the EPA appears to have applied a standard of causation, which from my read of TSCA is not accurate, is not a proper application, not the proper standard." He added that the plaintiffs need only show an association, not causation, in order to determine that fluoride poses an unreasonable risk to public health.

Judge Chen asked the parties to consider the possibility of either an amended petition and reconsideration by the EPA or a new petition altogether, saying he would hope that the agency would use the opportunity to look at the new evidence and apply the proper standard.

Nonprofit groups Fluoride Action Network, Food & Water Watch Inc. and others sued the EPA in 2017 under the TSCA's citizen suit provision, asking the court to overturn the EPA's rejection of their petition to ban fluoride in drinking water. The groups seek a declaration from the court that fluoride in tap water poses an unreasonable risk of harm to humans.

Judge Chen bifurcated the trial, with the first phase focusing on whether fluoride poses an unreasonable risk to people who drink water containing it. If Judge Chen finds that it does, the trial will move to a second phase in which he will be tasked with determining a remedy.

This is the first case under the TSCA's citizen suit provision to reach a federal trial and will test citizens' and nongovernmental organizations' power to force the EPA to regulate chemicals it has deemed safe based on how a judge assesses the scientific studies and expert testimony presented at trial.

Fluoridation of public drinking water systems began in the 1940s with the intention of improving dental health in the U.S., but the plaintiffs say it has since been proven that topical application is the most effective way to use fluoride and that ingestion poses neurotoxic risks.

Fluoride chemicals are now added to nearly 200 million Americans' sources of drinking water and are also used in the production of many foods and beverages. Despite published studies warning that fluoride is a neurotoxin, the federal government continues to recommend the exposure dose of .7 milligrams per liter of water, with a maximum dose of 4 milligrams per liter.

Plaintiffs' attorney Michael Connett of Waters Kraus & Paul LLP said during closing arguments that it is undisputed that fluoride passes through the placenta before it gets into the fetal brain, and that bottle-fed infants receive the highest doses of fluoride of any age group in the U.S. population.

Connett told the judge that there are about 2 million pregnant mothers and more than 400,000 exclusively formula-fed infants exposed to fluoride everyday in the U.S.

"At their moment of greatest vulnerability, we are exposing infants often from the poorest and most disadvantaged communities to a very high burden of fluoride," he told Judge Chen.

The EPA and its experts used the wrong standard — the causation standard — to assess the plaintiffs' evidence, Connett told the judge.

EPA counsel Debra Carfora of the U.S. Department of Justice assured the judge during closing arguments that if the agency found that fluoridated water poses a risk, it would take action to eliminate that risk.

Carfora acknowledged that fluoride poses a hazard at some level, but said the EPA "simply does not have the information necessary to reach an informed policy decision concerning the practice of community water fluoridation in the United States."

Carfora acknowledged that under the TSCA the court can find an unreasonable risk without finding causation, but said that making a finding of unreasonable risk on "a weak association, or an association that doesn't rise anywhere near the level of causation, would be inappropriate."

But the TSCA does not require causation, Carfora made clear.

The EPA did not readily agree with Judge Chen's proposal to have the agency reexamine the issue, telling him that because the amended TSCA is a new statute and because this is a case of first impression, there are considerations beyond fluoride to take into account.

Counsel for the citizens' groups also expressed concern that the EPA would further drag its heels, and that the groups lack the resources to keep fighting the case for years.

"The EPA has made a political decision not to do anything," Connett told the judge.

But Judge Chen said he didn't think the EPA would need years to reexamine the issue, and he won't be dismissing the case.

"This case has been tried, and if I have to, I will rule on it," Judge Chen said, giving the parties time to weigh in on his proposal at a future date.

The parties did not immediately respond to requests for comment Tuesday.

Food & Water Watch and the other groups are represented by Michael P. Connett and Andy Waters of Waters Kraus & Paul LLP.

The EPA is represented by Debra Carfora, John Do and Brandon Adkins of the DOJ's Environment and Natural Resources Division.

The case is Food & Water Watch Inc. et al. v. EPA et al., case number 3:17-cv-02162, in the U.S. District Court for the Northern District of California.

--Editing by Adam LoBelia.

SOURCE
https://www.law360.com/articles/1284093 ... judge-says
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