Potratz v. Commonwealth, 041906 PACCA, 1241 C.D.2005

Docket Nº:1241 C.D.2005
Party Name:Potratz v. Commonwealth
Case Date:April 19, 2006
Court:Court of Appeals of Pennsylvania
 
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James B. Potratz, Petitioner

v.

Commonwealth of Pennsylvania, Department of Environmental Protection and Erie City Water Authority, Respondents

No. 1241 C.D. 2005

Court of Appeals of Pennsylvania

April 19, 2006

Argued: January 30, 2006 BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JIM FLAHERTY, Senior Judge

OPINION

JIM FLAHERTY, Senior Judge

James B. Potratz (Potratz) petitions for review of the order of the Environmental Hearing Board (Board) which granted the Pennsylvania Department of Environmental Protection (DEP) and Erie City Water Authority’s (Authority) (Collectively, Respondents) motion for partial summary judgment on several issues raised in Potratz’s amended notice of appeal.1

In April of 2002, the Authority filed two permit applications with the DEP for the construction of fluoridation facilities at the Sommerheim and Chestnut Street water treatment plants.2 On August 21, 2002, the DEP issued a construction permit for the construction/modification of the public water supply for the Chestnut Street facility. On January 9, 2003, the Authority authored a certificate of completion of construction/modification of the public water supply for the Chestnut Street facility. On February 21, 2003, the DEP issued the operations permit for the Chestnut Street facility.3 . On April 4, 2003, Potratz and the City of Erie filed a notice of appeal challenging DEP’s grant of Authority’s operations permit. This appeal was amended on April 23, 2003.4

On March 15, 2004, Potratz again filed a motion to amend his notice of appeal in order to raise four constitutional claims in addition to those claims already before the Board. On May 12, 2004, Potratz was granted leave to amend his appeal.

On May 21, 2004, Potratz amended his notice of appeal and alleged that:

19) DEP abused its discretion or committed an error of law when it issued the Water Supply Permit because it failed to ascertain the components of hydrofluorosilicic acid and their effect upon public drinking water. Arsenic and lead are naturally occurring contaminants of hydrofluorosilicic acid and the levels of such cannot be adjusted. There exists a varying amount of naturally occurring arsenic and lead found in water supplies. The addition of hydrofluorosilicic acid to public water supplies adds to the natural levels of arsenic and lead thereby increasing the total level to an amount of those impurities that will certainly exceed the established scientific endpoints, known as Maximum Contaminant Level Goals, at which the risk of adverse health effects to consumers are expected to increase, and to a total concentration that under certain circumstances could very well exceed the regulatory Maximum Contaminant Level for those contaminants….

28) [Authority]’s selection of hydrofluorosilicic acid as the medium to fluoridate the public water system violated [Authority]’s duty as a trustee under Article I, Section 27 of the Pennsylvania Constitution to protect the waters of the Commonwealth….

29) [Respondent]’s administration of the Safe Drinking Water Act and approval of [Authority]’s permit to fluoridate the public drinking water violated [Respondent]’s duty under Article I, Section 27 of the Pennsylvania Constitution to protect the waters of the Commonwealth….

30) [Respondent]’s approval of [Authority]’s application to fluoridate violated [Potratz]’s rights under the United States Constitution….

31) [Respondent]’s approval of [Authority]’s application to fluoridate violated [Potratz]’s rights under the Pennsylvania Constitution….

Amended Notice of Appeal, Paragraph Nos. 19, 28-31; at 5, 11-15. Potratz’s main complaint was the Authority’s use of hydrofluorosilicic acid, which is an industrial waste product contaminated with impurities such as lead and arsenic, to fluoridate the public water supply. Amended Notice of Appeal, No. 19 at 5.5

On September 10, 2004, Respondents filed a joint motion for partial summary judgment. Respondents alleged that Potratz did not appeal the DEP’s issuance of the construction permit but only the operation permit and that of Potratz’s fifty-four objections, only two actually pertain to or challenge the validity of the operation permit, those being paragraphs 21a and 26 of Potratz’s appeal.6Respondents allege that the general concept of fluoridating the public water supply was approved at the construction permit stage of the process and that Potratz failed to raise those objections in a timely manner after the DEP issued the construction permit and therefore, Potratz is precluded from raising those objections now by the Doctrine of Administrative Finality (Doctrine). Respondents therefore asked for a judgment as a matter of law relative to Potratz’s paragraphs 19, 20a-20h, 21b-21c, 22-25, 27, 28a-28f, 29a-29g, 30a-30j, and 31a-31i of Potratz’s appeal.

In response, Potratz contended that Respondents failed to properly plead and prove that he could have raised these issues earlier and that his constitutional claims were not ripe for consideration when the construction permit was issued.

On March 11, 2005, the Board issued an opinion and order granting the Respondents motion for partial summary judgment on objections 19, 20a-h, 21b-c, 28a-f, 29a-g, 30a-j, and 31 in Potratz’s amended notice of appeal. The Board concluded that Potratz’s constitutional issues were ripe when the construction permit was issued. The Board also found that Potratz would have had standing to raise his issues in an earlier appeal of the construction permit. Potratz petitioned our Court for review.7

Before our Court Potratz contends that Respondents failed to properly plead and meet their burden of proof regarding the application of the Doctrine to objections raised...

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