MMWD District Operations Committee ITEM NO.: 8 MEETING DATE: May 17, 2013

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1 MMWD District Operations Committee ITEM NO.: 8 MEETING DATE: SUBJECT: SUBMITTED BY: Michael Ban, Environmental and Engineering Services Manager Mary Casey, General Counsel RECOMMENDED ACTION: This item has been placed on the agenda for information and discussion. SUMMARY: Water fluoridation is the process of adjusting the fluoride content of drinking water to the recommended level for dental health. Because fluoride is the thirteenth most abundant element in the earth s crust, it is present in virtually all surface and groundwater. In Marin, the natural fluoride concentration is about 0.1 milligrams per liter (mg/l). MMWD increases this level to 0.9 mg/l, which is the optimal level for dental health as determined by the State. This item was placed on the District Operations Committee s agenda at the request of the Board in response to concerns expressed by approximately 31 speakers about fluoridation during public comment at the start of the March 19 th Board meeting Voter Initiative MMWD began fluoridating its water in December 1973 following the passage of a public initiative supporting fluoridation in November Measure B passed on a vote of 46,172 (56.8%) For and 35,152 (43.2%) Against Ballot Measure Confirmed Fluoridation In response to concerns raised about fluoridation in 1978, the District Board authorized a second ballot measure on fluoridation. Measure D, on the November 1978 ballot, reaffirmed the District s fluoridation practice by a vote of 33,514 (52.6%) For and 30,225 (47.4%) Against. Use, Regulation and Approval of Fluoride The U. S. Environmental Protection Agency (U. S. EPA) regulates fluoridation by placing a limit on the amount of fluoride present in drinking water. The State of California regulates fluoridation by placing a limit on the amount of fluoride present in drinking water, similar to the U. S. EPA, and by regulating drinking water additives that are used to adjust fluoride concentrations.

2 Page 2 The Safe Drinking Water Act (SDWA) of 1974 confers the authority for ensuring the safety of public drinking water to the U. S. EPA. The EPA is responsible for setting drinking water standards to regulate the addition of fluoride to the public drinking water. Maximum Contaminant Levels (MCLs) are standards that are set by the EPA for drinking water quality. An MCL is the legal threshold limit on the amount of a substance that is allowed in public water systems under the Safe Drinking Water Act. The U. S. EPA MCL for fluoride is 4 mg/l. The California MCL for fluoride is 2 mg/l as referenced in California Code of Regulations Title 22 Division 4 Section As shown in Table 1, the concentration of fluoride in the District s drinking water is below the U. S. EPA (Federal) and California MCLs. Table 1 Maximum Contaminant Levels (MCLs) for Fluoride in Drinking Water U. S. EPA and California Agency Fluoride MCL (mg/l) MMWD 2012 Average Fluoride Concentration (mg/l) MMWD Compliant with Regulation? U. S. EPA Yes California Yes In addition to limiting the amount of fluoride that can be present in drinking water, the State of California further regulates the use of fluoride by requiring all drinking water additives, including fluoride, to be certified as meeting the specifications of NSF International/American National Standards Institute (NSF/ANSI) (Drinking Water Treatment Chemicals Health Effects) 1. Specifically, California Code of Regulations Section states: No chemical or product shall be added to drinking water by a water supplier unless the chemical or product is certified as meeting the specifications of NSF International/American National Standard Institute (NSF/ANSI) (Drinking Water Treatment Chemicals Health Effects), which is hereby incorporated by reference. Certification shall be from an ANSI accredited product certification organization whose certification system includes, as a minimum, the following criteria for ensuring the chemical or product meets NSF/ANSI Standard 60. (a) Annual product testing, (b) Annual facility inspections, 1 NSF Standard 60 was originally developed in 1988 at the request of the US EPA Office of Water. The NSF Joint Committee on Drinking Water Additives annually reviews and maintains the standard. Forty-seven (47) U. S. states require that chemicals used in treating potable water must meet NSF Standard 60 requirements.

3 Page 3 (c) Annual quality assurance and quality control review, (d) Annual manufacturing practice reviews, and (e) Annual chemical stock inspections. The three fluoride agents certified as meeting NSF Standard 60 are presented in Table 2. Table 2 NSF 60 Certified Fluoride Drinking Water Additives NSF Approved Fluoride Additives Chemical Formula Approval Standard Industry Standard Hydrofluorosilicic acid H 2 SiF 6 NSF Standard 60 AWWA B703 Sodium Fluoride NaF AWWA B701 Sodium Fluorosilicate Na 2 SiF 6 AWWA B702 MMWD adjusts the fluoride content of its drinking water to the optimal level for dental health by adding hydrofluorosilicic acid which, as shown in Table 2 above, is an NSF Standard 60 certified drinking water additive. Therefore the District is compliant with the 1972 ballot measure which requires the District to use an approved fluoride compound, and State and federal regulations. Other California water agencies using hydrofluorosilicic acid include: Contra Costa Water District East Bay Municipal Utility District San Francisco Public Utilities Commission Metropolitan Water District of Southern California Statistics MMWD is one of over 18,400 Community Water Systems (CWS) in the United States that provide fluoridated water. According to the Centers for Disease Control, an estimated 204 million people in the United States, representing 66% of the population, received fluoridated water in Health organizations supporting fluoridation include: U.S. Department of Health and Human Services Centers for Disease Control and Prevention The American Medical Association The Surgeon General American Academy of Pediatric Dentistry American Academy of Family Physicians World Health Organization 2 CDC Reporting System as of December 31, 2010.

4 Page 4 Elections Code Section 9323 Requires a Vote of the People to Overturn a Ballot Measure or an Initiative The ballot measures of 1972 and 1978 cannot be repealed or amended except through a vote of the people in other words another ballot measure. Section 9323 of the California Election Code states No ordinance proposed by initiative petition and adopted either by the district board without submission to the voters or adopted by the voters shall be repealed or amended except by a vote of the people, unless provision is otherwise made in the original ordinance. In all other respects, an ordinance proposed by initiative petition and adopted shall have the same force and effect as any ordinance adopted by the board. Health & Safety Code Sections & Water Systems Serving more than 10,000 Service Connections In 1995 Assembly Bill 733 became law requiring water systems serving 10,000 or more service connections to fluoridate the water supply. In authoring the bill the legislature appears to have considered local opposition to fluoridation of drinking water. Section of the Health and Safety Code provides: The Legislature finds and declares all of the following: (a) (b) (c) Promotion of the public health of Californians of all ages by protection and maintenance of dental health through the fluoridation of drinking water is a paramount issue of statewide concern. It is the intent of the Legislature in enacting this article to preempt local government regulations, ordinances, and initiatives that prohibit or restrict the fluoridation of drinking water by public water systems with 10,000 or more service connections, without regard to whether the public water system might otherwise be exempt from Section or the requirements of this section, pursuant to Section It is further the intent of the Legislature in establishing this article to decrease the burden the Medi-Cal and the Denti-Cal programs place upon the state s limited funds. Health & Safety Code Section requires public water systems serving more than 10,000 service connections with a natural level of fluoride that is less than the minimum established in the regulations adopted pursuant to Section , shall be fluoridated in order to promote the public health of Californians of all ages through the protection and maintenance of dental health, a paramount issue of statewide concern.

5 Page 5 Health & Safety Code Section Provides Exemptions to the Statewide Fluoridation Requirement for Certain Water Systems Healthy and Safety Code Section exempts certain waters systems from the fluoridation requirement when funds are not available from outside sources to pay for the capital and associated annual operating costs of fluoridation. Under the statute, outside sources are defined as sources other than the system s ratepayers, shareholders, local taxpayers, bondholders or any fees or charges levied by the water systems. The District s annual costs to fluoridate the water supply are approximately $140,000. Annually, the District receives about one million dollars in rental income from its antenna site and property leases. If there were a vote within the District s service area to overturn the 1978 ballot measure, there is a very strong argument and likelihood that the District would be required to fluoridate the water supply because it serves more than 10,0000 service connections and has outside income to pay the annual costs of fluoridation. The California Legislature has made it clear that it has decided to occupy the field of water fluoridation and local measures designed to defeat Health and Safety Code Section are vulnerable to challenge. The challenge would come in the form of a lawsuit brought by the Attorney General s Office upon request of the Department of Public Health. Health and Safety Code Section (c) provides: Conclusion (c) If the owner or operator of any public water system subject to Section fails, or refuses, to comply with any regulations adopted pursuant to Section , or any order of the department implementing these regulations, the Attorney General shall, upon the request of the department, institute mandamus proceedings, or other appropriate proceedings, in order to compel compliance with the order, rule, or regulation. This remedy shall be in addition to all other authorized remedies or sanctions. Fluoridation of the District s water supply is governed by both a 1978 voter approved ballot initiative and state law. Even if the 1978 ballot measure were over turned, the District would be subject to the provisions of Health & Safety Code Sections , and because the District provides water to more than 10,000 connections and has revenue available from rental income, an outside source, to pay the annual fluoridation costs. We will be happy to answer any questions.