This is an administrative law case dealing with state and local government powers to fluoridate the water supply.
In essence the application to prevent the community health measure was dismissed.
At
The likely significant affects that the Applicant identifies as being those required to be examined and taken into account are claims of risks to human health by the addition of fluorine to the water supply, coupled with the reliability and acceptability of the equipment designed, installed and operated for dosing the water supply with fluorine. Those affects on human health or matters related to impacts on health that are claimed not to have been addressed by the Council and which also demonstrate significant affect on the environment are identified as being:
(i) expected and potential biological effects on humans who ingest fluoridated water;
(ii) impacts of fluoridation on persons who may be more sensitive, including bottle fed babies, persons using other fluorine medication, persons with relevant illnesses and pregnant women;
(iii) relative risks and benefits associated with different dosing methods and different fluorine compounds;
(iv) expected potential impacts of chemicals which accompany the fluorine compounds;
(v) the incidence and effects of fluorosis;
(vi) the risk and effects of an overdose of fluorine;
(vii) alternatives to the fluoride dosing facility;
(viii) bioaccumulation; and
(ix) available relevant peer review of academic literature directed to affects.
At [152] The Court stated:
These are examples of statements of “significance” that appear in several documents. The Applicant relies upon them to sustain a submission that the fluoridation of the Eurobodalla Water Supply will have a significant affect upon the environment. I do not accept that, read in isolation, such statements are of a kind that demonstrate the engagement of s 112 in assessing the activity. The use of derivatives of the word “significant” in describing a particular benefit or detriment does not, to my mind, equate to a significant affect upon the environment as directed by s 112.
The Applicant relied upon the evidence of Dr Andrew Harms, a dental practitioner practising in Adelaide, who held a bachelor’s degree in dental surgery from Adelaide University. His tertiary education commenced in the field of biochemistry and zoology with a particular interest in toxicology. In addition to practising dentistry he is a part-time clinical tutor in the Faculty of Dentistry at the University of Adelaide. While not opposed to the topical use of fluoride by dental practitioners, he identified a number of collateral effects from the addition of fluoride to a public water supply that include fluorosis, delayed tooth eruption and the retention of fluoride in the body ingested from fluoridation of public water supplies when the health consequences of such ingestion are said to be unknown. He makes reference to literature that supports his opinion as to these collateral effects.
Dr Harms was a member of the Australian Dental Association from 1978 to 2007. In 1996 he was president of the South Australian branch of the Australian Dental Association. He is no longer a member of the Association, one reason for which, as I understand his evidence, being that he does not support the policy of that Association favouring fluoridation of water supplies.
The Council relies upon the evidence of Emeritus Professor Andrew Spencer who was for some time the Professor of Social and Preventative Dentistry in the School of Dentistry at the University of Adelaide and also the Director of the Australian Research Centre for Population Oral Health within that University. He has degrees from the University of Melbourne including a Master of Dental Science in Childrens and Preventative Dentistry, a Master of Public Health degree from the University of Michigan and a Doctorate in Philosophy from the University of Melbourne, all directed to aspects of dentistry. He established the Dental Statistical Research Unit within the University of Adelaide, the role of which is said to be “to improve the oral health of Australians through the collection, analysis and reporting of information on oral health and access to dental care, the practice of dentistry and the dental labour force in Australia.”
Dr Harms’ affidavit evidence is very detailed, containing a substantial volume of statistical material responding to the evidence of Dr Spencer. In essence, he disputes each of the claims made by Dr Spencer. His conclusion is expressed at [104] of his affidavit in the following terms:
“Research conducted with colleagues at the [Australian Research Centre for Population Oral Health] provides detailed and consistent evidence that exposure to water fluoridation is effective, that is there is an association with lower caries experience among those with high exposure compared with those with low or little exposure. The size of the benefit is larger for the deciduous dentition of young children (approximately 40-50%) than in the permanent teeth of children and adolescents (20-30%).”
1 The difference between Dr Harms and Dr Spencer is succinctly captured in the joint report that they prepared. That report demonstrates disagreement as to the reliability of statistics to support their competing theses. While Dr Harms referred to limited data to support the views that he had expressed, Dr Spencer referred to what he described as “formal statistical analysis of appropriate data” to identify the benefit of exposure to water fluoridation among Australian children, young adults and adults. By reference to that data, Dr Spencer maintained that the difference in eruption time of permanent teeth by exposure to fluoridated water was minimal, supported in his oral evidence by reference to data that tended to demonstrate that the difference in eruption time appeared, at most, to be a difference of months. He also maintained that fluoridation may reduce malocclusion that results from the premature loss of deciduous teeth.
2 The joint report demonstrated disagreement on the “prevalence, severity and impact of dental fluorosis among children”. Dr Harms’ claim to see children affected by fluorosis regularly, asserting that it is “widely accepted” that medium to severe fluorosis occurs in 3% to 5% of the population whose water is fluoridated. However, when challenged on that statistic, he was not able to compare the occurrence of fluorosis in a non-fluoridated water supply given that there are other vectors through which fluorosis occurs, including naturally occurring fluoride in potable water that exceeds the level achieved in controlled addition of fluoride to a water supply that does not contain naturally occurring fluoride.
3 Dr Spencer sought to demonstrate not only that fluorosis occurs in both fluoridated and non-fluoridated water supplies, its prevalence has reduced since the adoption of guidelines on the use of fluoridated toothpaste by young children. He claimed that fluorosis seen in Australian children is predominately in the range of very mild to mild which has no negative impact on the perceived attractiveness of teeth and has no negative impact upon oral health or related quality of life.
4 A further difference raised in the joint report related to the use of fluoridated water to reconstitute infant formula powder. While Dr Harms identified concern about the constituents of imported infant formula powder, Dr Spencer referred both to the advice of the American Dental Association to the effect that infant formula can be reconstituted with fluoridated water and also data available indicating that bottle feeding of infants with fluoridated water in South Australia has not been associated with higher prevalence of dental fluorosis.
5 Dr Harms acknowledged that his opinion as to the detrimental effect of fluoridating the public water supply did not accord with the position in that regard of Commonwealth bodies, including the NHMRC, the position of State Governments, the position of the Australian Dental Association and statutory bodies in both Canada and the United States supporting the retention of fluoridated public water supply systems.
6 The Council also relied upon the evidence of Dr Anthony Brown, a public health physician and occupational physician. Dr Brown is the Associate Dean and Head of the School of Rural Health within the Sydney Medical School at the University of Sydney. He has academic qualifications from both the University of Melbourne and from Monash University.
7 In his evidence, Dr Brown first addressed a number of papers identified in paragraph 29 of the Applicant’s Points of Claim, it being asserted that those articles conclude that there is a significant risk that fluoridation of water to a concentration of 1mg/L is harmful to human health. Apart from reference to these articles in the Points of Claim, the Applicant did not otherwise seek to support these articles by evidence tendered in the course of the proceedings. As a consequence, I do not stay to address Dr Brown’s response to these articles.
1 Dr Brown addresses the evidence given by Dr Harms as to the collateral effect of adding fluoride to a public water supply from the perspective of a public health medical practitioner. Dr Brown identifies skeletal fluorosis as a disease of bones caused by excessive absorption of fluoride from one or more sources. Its prevalence is in countries where water supplies have naturally occurring high levels of fluoride. Those levels exceed the level at which fluoride is permitted in the Eurobodalla Water Supply. He described skeletal fluorosis as being a rare disease in Australia, particularly where water is fluoridated at the concentration level permitted in Eurobodalla. At that level he expresses the opinion that skeletal fluorosis is not a risk. In cross-examination, he agreed that approximately 50% of fluoride consumed by humans is retained within the body and 50% excreted. That which is stored in the body is stored where calcification occurs principally in bones and teeth. Accumulation of some level of fluoride in the body was necessary to achieve the effects observed in teeth. He also indicated that fluoride in the body had some beneficial effect for the treatment of osteoporosis. He rejected the suggestion that at a dosage level of 1mg/L there would be an observable effect on human bones. Levels in excess of 4mg/L would be required to produce some evidence of skeletal porosis.
2 Dr Brown was also cross-examined as to the impact of fluoride on the pineal gland. He was referred to a study emanating from the School of Biological Science at the University of Surrey which Dr Brown acknowledged indicated an accumulation of fluoride in the pineal gland of a small sample of older people. A function of the pineal gland is to synthesise melatonin, an important function for the human body. Ultimately, he rejected any inference that accumulation of fluoride in the pineal glands of children could give rise to a serious risk of injury or disease. His response was to indicate that it had not been established that fluoride in the pineal gland caused any abnormality in function. The Surrey University study showed the presence of fluoride in the pineal gland but its presence was passive with no indication that it was causing a particular problem.
1 Dr Brown also responded to the concern expressed by Dr Harms as to the use of Redox, being the product utilised by the Council as the agent for introducing sodium silica fluoride to the water supply. The Material Safety Data Sheet for that product addressed a number of matters directed to the safe handling of that product. The safety data sheet contained warnings about the toxicity of the concentrated product, indicating that it was listed on Schedule 6 of the Poisons Act. However, he identified the safety data sheet as one directed to people handling the raw product, essentially as an occupational health and safety matter. The data could not be used to extrapolate the effects of the material when diluted in a very large volume of water to the concentration allowed by the approval given under s 6 of the Fluoridation Act.
2 Dr Brown concluded by stating that fluoridation of public water supplies represented:
“an efficient and equitable prevention activity and that the experience in Australia and elsewhere was that fluoridation at the level used in Eurobodalla “is not associated with significant adverse health effects.”
1 The Council also relied upon the evidence of Dr John Chapman, an ecotoxicologist. He holds an honorary scientific fellowship with the Office of Environment and Heritage and is also an adjunct professor at the University of Technology, Sydney. Until 30 June 2012, he was the manager of the ecotoxicology and environmental contaminants section at the New South Wales Office of Environment and Heritage. He holds tertiary degrees including a PhD in Organic Chemistry from the University of Sydney and a post graduate masters degree in Environmental Studies from Macquarie University. Although his affidavit is detailed and includes a number of test results, his conclusions may be expressed as follows:
(i) it is very unlikely that any risk to the environment exists at water fluoridation levels of 1mg/L;
(ii) fluoride occurs naturally in the aquatic environment, especially in sea water, where the average concentration is 1.3mg/L with fluoride exhibiting acute toxicity at levels well above the 1mg/L concentration and chronic effect levels also above that concentration;
(iii) fluoride naturally accumulates in the skeletal structures of marine fish and invertebrates with elevated levels in some marine organisms not exposed to anthropogenic fluoride, with the consequence that fluoridation of the water supply would result in negligible risk from ecological bioaccumulation of fluoride in aquatic organisms;
(iv) terrestrial wildlife would not be adversely affected by drinking fluoridated water at the applicable level;
(v) environmental factors in waters reduce the toxicity of fluoride so that there is very little likelihood of exposure at elevated levels of aquatic life in the Eurobodalla District.
2 There was no evidence led by the Applicant to counter that given by Dr Chapman. His cross-examination, essentially directed to the possibility of heavy metals in the water supply, given the content of the fluoridating agent, did not undermine any of the evidence that he gave in chief. To the extent that he was taken to water quality guidelines, his evidence was that such heavy metals as were identified would be below drinking water guidelines.
3 I then return to the evidence given by Drs Spencer and Harms. Overall I prefer the evidence of Dr Spencer essentially for the following reasons:
(i) his statistical analysis and comparison for the purpose of identifying the effects of fluoridation appeared to be sound;
(ii) Dr Harms acknowledged that apart from some academic writers whose opinions were challenged, those expressed by Dr Harms did not accord with the Commonwealth, State and many international agencies;
(iii) those opinions held by Dr Harms seemed to be informed, at least in some measure, by an anxiety to be heard on those opinions rather than to address, in a measured way, the material that supported the policies adopted by authorities implementing fluoridation of public water supplies;
(iv) the objectivity of Dr Harms was in part diminished by his reference to a news release from the United States Department of Health and EPA on January 2011 as a warning directed to fluoridation, implying support for the thesis advanced by Dr Harms, when a consideration of the news release in its entirety indicated that those agencies supported the continuation of fluoridation of public water supplies because of its benefits but proposed a reduction in the recommended dosage level for fluoride, a proposal that has not yet been adopted;
(v) while bioaccumulation of fluoride within the human body was accepted as occurring within bones and, in some measure, in the pineal gland, the assertion that this led to health problems as a result of fluoride introduced into the public water supply systems at the dosage level intended for Eurobodalla was not accepted as being correct by Dr Brown whose evidence in this regard was not contradicted.
4 Importantly, acceptance of the beneficial effect of fluoridation does not equate to acceptance that it has or is likely to have a significant affect upon the environment. While it certainly reflects a change in the chemical constituents of water hitherto reticulated in Eurobodalla, so also does the general treatment of water though the new Plant which, it will be remembered, commenced operation sometime before the fluoride dosing facility was installed and operated. While the health benefit may be seen to be important, I do not accept that the provisions of s 112(1) are engaged such that “the activity” could not be carried out without the Council first obtaining and considering an environmental impact statement conformably with that subsection 5.
The Applicant has not established that the Council has acted in breach of s 112 of the EPA Act.
