Last Thursday, the City of Birmingham filed another lawsuit against Central Alabama Water. The suit argued that the utility's decision to stop adding fluoridation at the one remaining operational plant out of four was detrimental to the health of Birmingham residents. Three plants were taken offline by the former board without public notice or notice to the State.
On Monday, Circuit Judge Frederic Allen Bolling issued a scathing order requiring Central Alabama Water to resume fluoride operations across its entire system, a move that may have catastrophic consequences for the utility's financial well-being and raise costs across the board. The issue will be heard in detail on April 2.
Last month, S&P Global Ratings lowered the utility's long-term rating to "AA-" from "AA" for what multiple reports have found to be fiscal mismanagement, which the current board attributes to the former Birmingham Water Works Board (BWWB).
SEE: Central Alabama Water moves to stop adding fluoride to drinking water; Woodfin irate about change
"Here, the City of Birmingham has demonstrated an immediate and irreparable harm to it and its citizens, if the Defendants are not restrained from continuing to violate the law requiring a ninety (90) day notification to the State Health Officer before initiating a change to fluoridation levels," the order reads.
This is the first win for Birmingham Mayor Randall Woodfin in his ongoing war against the new board.
The order requires the utility to restart fluoridation unless it can prove it gave at least 90 days' notice to the State health officer, as mandated by Alabama law. The utility argues it complied with the law, as the law specifically states there are situations that permit it to stop fluoridation that are applicable in this case.
Section 22-23-21 Section C states: "The notification requirements of subsection (a) do not apply to a temporary discontinuance of fluoridation that is caused by equipment failure, maintenance, or replacement; temporary chemical supply shortages; placing water sources offline; or other similar unavoidable circumstances."
Bolling acknowledged that option.
"Finally, the statute provides for several excuses from compliance for unavoidable temporary circumstances. Nothing in the statute provides an exception to permanent and/or avoidable decisions by public water systems that decide on their own to permanently remove or change the levels of fluoridation in the system's water supply," Bolling stated, accepting the premise that the utility's public notice was a permanent one. The utility did not specifically state that.
"Ending fluoridation avoids the need for immediate capital investments (exceeding $3.7 million)," the utility explained in its initial press statement.
The court took that up in the order, ignoring section C of the law altogether.
"The Court anticipates that it will hear arguments regarding the costs of compliance with the law," the court wrote. "First, the Court does not believe that it will have the authority to order disobedience to the law, because of cost concerns. After all, it is not within the Court's purview to legislate."
The order went further, parroting some of Woodfin's Facebook posts and criticism related to spending and layoffs.
"However, if costs would be a factor that the Court could consider, the Court would eagerly await what argument could be made concerning costs, that would justify placing public health at risk, while administrative salaries continue to balloon, front-line workers have been terminated by the hundreds, and salaries for legal services have for years been inflated, to include months when legal services billing has exceeded $100,000.00 or more per month," the judge wrote.
The order also noted that it is not limited to the single plate CAW took offline.
"This Order is not limited to just the restoration of fluoride to the supply of drinking water supplied by the Shades Mountain treatment facility, but it applies to every drinking water treatment facility, managed, operated, or controlled by the Defendants," it stated.
"In case the above is not clear, the Court Orders that, unless the mandatory notice was provided to the State Health Officer, in compliance with state law, all water that does not contain the recommended levels of fluoride, be brought into compliance with all deliberate speed," the order added. "If equipment needs to be ordered, ORDER IT. If extra work hours need to be approved, APPROVE THEM."
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