NTP report released in August
Judge Chen’s ruling did not specify what measures must be adopted by the EPA, but under the Toxic Substances Control Act (TSCA), once the court rules that a chemical poses an unreasonable risk, the defendant, EPA in this case, is obligated to restrict or eliminate the risk. “One thing the EPA cannot do, in the face of this court’s finding, is to ignore that risk,” he warned in his legal opinion. In August a federal agency released a long-awaited report on the neurotoxicity of fluoride, and it found “a large body” of evidence that as fluoride exposures increase, intelligence in children is lowered. The findings of the National Toxicology Program’s report played a prominent part in the scientific evidence cited by the judge in his opinion.
EPA claims it cannot assess the risk
Oddly enough, even though the defendant, the EPA, admitted that it had seen numerous studies indicating that fluoride may be a neurotoxin (harmful to brains and the nervous system) it had never completed a standard EPA risk assessment framework for fluoride. In its own defense of that omission, EPA argued that it couldn’t calculate the risk it posed because it was too wracked by uncertainty to carry it out. It claimed that it could not determine the “lowest observable adverse effect level” and, hence, could not proceed further in the process. But its critics will all tell you the real reason that the EPA was unwilling to go further with its risk assessment was that there are clearly demonstrated risks from exposures of 4.0 mg/liter and even at 1.50 mg/liter. A margin of safety of 10 should be applied to protect the most vulnerable parts of the population such as children, the elderly, people with reduced kidney function, and those who use more water and get a higher dose. Dividing the known hazard levels by 10 gives a regulatory result of 0.4 mg/liter or even 0.15, which is far below the 0.7 mg/liter that water fluoridation currently provides.
What’s next?
Judge Chen’s verdict does not specify what the EPA should do next. The EPA may even appeal to the verdict to a three-judge Court of Appeals. If EPA does appeal, it has to file a Notice of Appeal to the court within 30 days of the final publication of the judge’s opinion. If there is an appeal, the appeals process would likely consume another 1.5 to 2 years. The plaintiffs feel confident that the findings of fact and law by Judge Chen would not be overturned, but the EPA, represented by attorneys from the Justice Department, would look for possible technical errors that might have been made by the judge in the course of the lengthy trial. Of course, the interested public may become exasperated as the EPA drags the case through an appellate process while the brains of American children continue to be harmed by a neurotoxin that is still being added to the drinking water.
Once the case is resolved and Judge Chen’s ruling remains intact, EPA has to enter into rule making and would be expected to call for either an end to water fluoridation, the most obvious solution, or call for a drastic reduction in the levels of fluoride being added to water. If the EPA chooses the latter route, its proposed rule would be subject to public comment during a given comment period. Comment would be expected to come in from the plaintiffs in the fluoride lawsuit and from Judge Chen himself. Comment would also be expected to come in from top fluoride research scientists in the world, such as the ones who testified so convincingly during the fluoride trial.