Two water providers in north Arkansas are fighting the state's fluoride mandate.
Neither entity provides water to retail customers, so they aren't "water systems" as defined by Act 197 of 2011, according to circuit court filings in Madison and Boone counties.
The Arkansas Department of Health disagrees.
R. Christopher Lawson, a Fayetteville lawyer, represents the Ozark Mountain Regional Public Water Authority, based in Diamond City in Boone County, and the Madison County Regional Water District, based in Huntsville.
Lawson filed petitions asking circuit judges to overrule the state Health Department, which has ordered the entities to add fluoride to the water they provide or face fines of $500 a week.
Act 197 of 2011 -- codified as Arkansas Code Annotated 20-7-136 -- defines a "water system" as "a facility including without limitation a parent system, consecutive system or other system that holds, treats and supplies water directly or through a consecutive system or consecutive systems to 5,000 persons or more."
"Under the plain language of the Act, the Water Authority is not a 'water system' because it does not supply water to 5,000 persons or more, but instead only supplies water to 18 wholesale customers," according to Lawson's petition filed Sept. 7 in Boone County on behalf of the Ozark Mountain Regional Public Water Authority.
Lawson wrote a similar paragraph in the other petition, noting that the Madison County Regional Water District provides water to two wholesalers -- the city of Huntsville and the Madison County Water Facilities Board.
In his petitions, Lawson wrote that state law doesn't define "consecutive system." Neither water provider is a "parent system" or "consecutive system" under the state law, according to the petitions.
Reginald Rogers, deputy general counsel for the Health Department, disagreed.
"Petitioner is a parent in a consecutive system or systems," he wrote in a response in Madison County Circuit Court.
Rogers cited Arkansas attorney general's opinion 2013-145, which said "persons" in Act 197 refers to "human beings, not accounts."
The court petitions were filed after administrative hearings in which the Health Department ruled against the two water providers. Health Department filings noted that grant funding was available through the Delta Dental Foundation of Arkansas to add fluoridation equipment.
Besides the argument over the definition of a "water system," in the Boone County petition, Lawson wrote that Act 197 of 2011 is "unconstitutionally vague." That's not an argument in the Madison County case because it wasn't brought up at that Health Department hearing, he said.
Andy Anderson, president of the Ozark Mountain Regional Public Water Authority, said the Delta Dental funding isn't really a grant.
"It is a loan that will be forgiven after 10 years provided that you feed fluoride continuously for those 10 years," Anderson said in an email. "There has been no grant money offered for the additional cost of chemicals, labor, monitoring, utilities, insurance or repair expense, only for the initial cost of additional equipment required to feed it into the system."
Anderson said there are health hazards from added fluoride, which he described as a neurotoxin.
"It causes problems with the brain," he said. "It's bad for people with thyroid issues. It's bad for diabetics. It's bad for people with kidney problems. You're not supposed to mix infant formula with fluoridated water. It's corrosive. You put it in water, and it leaches lead out of the plumbing. These are known things."
Anderson said a new danger of adding fluoride to water is revealed almost every day.
Meg Mirivel, a spokesman for the Health Department, said they wouldn't respond directly to Anderson's comments because of the ongoing litigation.
But the Health Department's website includes a fluoride fact sheet that reads: "Fluoridation is safe. Over 60 years of research and practical experience have demonstrated that there are no harmful effects as a result of fluoridation. ... Leading scientists and health professionals, professional organizations, and governments around the world endorse community water fluoridation."
Lawson said the Health Department isn't pursuing fines while the cases are on appeal. He noted that rulings by the circuit courts could be appealed to the Arkansas Supreme Court.
The Ozark Regional Public Water Authority has members in four counties: Boone, Newton, Marion and Searcy. Its members include the cities of Diamond City, Jasper, Lead Hill, Leslie, Marshall, Valley Springs and Western Grove, in addition to the following water associations: Nail-Swain, Deer Community, South Mountain, Morning Star, Parthenon, Mt. Sherman, East Newton County, Mockingbird Hill, SDM, SP&G and Lake Bull Shoals Estates.
Metro on 10/09/2016