William v. Bottonari
| Decision Date | 29 June 2010 |
| Citation | 4 A.3d 707 |
| Parties | Susan K. PICKFORD, Robert F. and Nancy L. Cox, Anthony Davis, Lisa M. Walker, Victoria Millard, Christine and Erik Bish, David and Jessica Sears, Matt and Tricia J. Coniglio, Hans and Renee Wertz, Barbara Stern, William V. Bottonari, Kelly L. Houpt, Arthur Sconing, Gerard E. and Barbara Martin, Carl L. Crone, Sharon Landis, Anne Marie Judson, Adele Wilcox and John Kirk, Danielle Oakes, and Missak Sisserian, Petitioners v. PUBLIC UTILITY COMMISSION, Respondent. |
| Court | Pennsylvania Commonwealth Court |
OPINION TEXT STARTS HERE
Rhonda L. Daviston, Asst. Counsel, Harrisburg, for respondent.
Ann R. Johnston, Asst. Counsel, Harrisburg, for intervenor, Department of Environmental Protection.
Michael D. Klein, Washington DC, for intervenor, Pennsylvania American Water Company.
BEFORE: McGINLEY, Judge, and LEAVITT, Judge, and FRIEDMAN, Senior Judge.
OPINION BY Judge McGINLEY.
This is an appeal from the Order of the Pennsylvania Utility Commission (Commission) which dismissed complaints filed by Susan Pickford (Pickford) and 18 other customers (hereinafter collectively “Petitioners”) of the Pennsylvania American Water Company (PAWC) on the grounds that Petitioners failed to establish a prima facie violation of Section 1501 of the Public Utility Code (Code), 66 Pa.C.S. § 1501.
PAWC's Change From Chlorinated Water (treated with chlorine) to Chloraminated Water (treated with chlorine and ammonia)
In 2003, PAWC announced that it intended to convert its West Shore Regional Water Treatment Plant and the Silver Spring Water Treatment Plant from “chlorinated” water to “chloraminated” water. 1
PAWC applied for a public water supply permit to operate the chloramination facilities. The Department of Environmental Protection (DEP) granted the public water supply permit and published notice in the Pennsylvania Bulletin. In obtaining the public water supply permits from the DEP, PAWC demonstrated to the DEP's satisfaction that the proposed use of chloramines achieved public health goals and produced water that met water quality standards with no known health effects. The DEP considered that the Environmental Protection Agency (EPA) had previously determined that chloramines posed no health concerns to humans at levels used for drinking water disinfection and confirmed that “[d]rinking water chloramine levels that meet the EPA standard are associated with minimal to no risk and should be considered safe.” 2
On November 30, 2007, Pickford, an attorney and customer of PAWC, filed a notice of appeal to the Environmental Hearing Board (EHB) and sought review of the DEP-issued permits claiming a denial of due process because of alleged inadequacies in the notices published in the Pennsylvania Bulletin. The EHB granted PAWC's motion to dismiss Pickford's appeal as untimely because the notices were not misleading or incomplete. Pickford appealed to this Court for review of the EHB order. This Court affirmed the EHB order concluding, as the EHB had, that the appeal was untimely and that the notices were adequate. Pickford v. Department of Environmental Protection, 967 A.2d 414 (Pa.Cmwlth.2008). On July 30, 2009, the Supreme Court of Pennsylvania denied Pickford's Petition for allowance of appeal. Pickford v. Department of Environmental Protection, 603 Pa. 678, 982 A.2d 67 (2009).
Between August 2007 and May 2008, the Commission received 24 formal complaints in response to the announcement that the PAWC intended to convert the West Shore Regional Water Treatment Plant and the Silver Spring Water Treatment Plant from chlorinated water to chloraminated water. The complaints each alleged adverse health effects from chloraminated water and requested that the Commission prevent PAWC from proceeding with its program until the health issues were studied and resolved.
The PAWC moved to dismiss the complaints for lack of subject matter jurisdiction. The PAWC argued that the allegations involved matters related to water quality and water purity issues which were within the exclusive jurisdiction of the DEP and EPA. It noted that water quality and the purity of the water itself was exclusively regulated in Pennsylvania, not by the Commission, but by the EPA and the DEP pursuant to the Federal Safe Drinking Water Act 3 and Pennsylvania Safe Drinking Water Act. 4 PAWC argued that the Commission, on the other hand, oversees issues involving the quality and character of water service.
The Administrative Law Judge (ALJ) agreed that the DEP had exclusive jurisdiction over the potential health effects of chloraminated water and dismissed the complaints. Petitioners filed exceptions. On March 13, 2008, the Commission reversed the ALJ and remanded for a hearing on whether reasonable and adequate notice was given to PAWC's customers of the proposed change and whether PAWC's choice of treatment alternatives and cost and implementation was prudent and appropriate. The Commission ruled that that Section 1501 of the Code, 66 Pa.C.S. § 1501, which requires that every public utility furnish and maintain adequate, efficient, safe and reasonable service and facilities, invested the Commission with jurisdiction over water quality service. The Commission further concluded that Section 318(b) of the Code, 66 Pa.C.S. § 318(b), further invested the Commission and the DEP with joint jurisdiction to review issues of water purity.
On remand, there were extensive prehearing proceedings, public hearings were conducted, numerous motions were filed, and proposed written expert testimony was submitted. Based on the fact that the DEP had already evaluated the public health issues associated with the use of chloramines based on EPA studies, the ALJ ruled in limine that no evidence relating to the public health determinations made in the context of the DEP's permitting decisions would be allowed:
As the agency entrusted with the jurisdiction to administer and enforce the federal and state standards relating to disinfectants applied to drinking water, DEP evaluated the public health issues associated with the use of chloramines, and, as stated in DEP's Motion [in Limine] ‘the permit issued to respondent [PAWC] incorporates limits and conditions needed to protect public health.’ Motion at 2. That decision cannot be collaterally attacked in this proceeding, nor is this preceding (sic) the appropriate venue to challenge the federal and state standards relating to disinfectants. No evidence will be permitted, therefore, relating to the public health determinations made in the context of DEP's permitting decisions to allow the use of chloramines at the PAWC facilities at issue here.
Prehearing Order # 1, May 5, 2009, at 4; Reproduced Record (R.R.) at 98a.
Petitioners appealed the ALJ's decision on the ground that it was inconsistent with the Commission's conclusion that it had joint subject matter jurisdiction with the DEP over this water quality issue. The Commission clarified that the DEP has primary jurisdiction with regard to the public health issues related to the use of chloramines and these proceedings “cannot be used to challenge the DEP's permitting process or the issuance of the four permits involved.” Commission Order, July 17, 2008, at 11. The Commission found that evidence of public health and safety issues associated with chloramines and chloramine-byproducts should be excluded because the Commission “will not second-guess the DEP's permitting decisions or its public health determinations regarding the use of chloramines” and the parties “may not use this venue to collaterally attack the decisions of the DEP or standards related to disinfectants properly within its authority under the federal and state safe drinking water laws.” Id. at 14.
The Commission identified the only remaining issues within its jurisdiction before the ALJ on remand: (1) whether reasonable and adequate notice was given to PAWC's customers; (2) whether the PAWC's choice of treatment alternatives and its cost and implementation was prudent and appropriate; and (3) whether water provided at the tap was suitable for all household uses and constituted the provision of safe, adequate, efficient and reasonable services under 66 Pa.C.S. § 1501.
In their Prehearing Memorandum, Petitioners indicated that they anticipated calling Dr. Conaway as an expert witness to testify about the health effects of chloramines and chloramine byproducts, the lead leaching effects of chloramines, damage to pipes and plumbing fixtures, fish kills and other environmental impacts of chloramines in treating water and water treatment alternatives. Both the DEP and the PAWC filed Objections to the admissibility of Dr. Conaway's testimony to the extent that it was not relevant or material to the issues and violated the ALJ's Pretrial Order which precluded evidence on the issue of the health effects of chloramines. The Office of Consumer Advocate (OCA) filed an Answer to the Objections. Petitioners, however, did not respond or oppose the Objections. In an order dated September 25, 2008, the ALJ sustained the Objections because Petitioners did not timely answer.
Pursuant to 52 Pa.Code §§ 5.103 and 5.156(b), the joint complainants' [Petitioners] answer to PAWC's Objections was due on or before September 17, 2008.
No answer to the Objections was filed by the joint complainants or served on me either electronically or by hard copy. Therefore, it can reasonably be assumed that they do not contest the Objections and have withdrawn the statements, and the Objections are granted.
A public hearing was held on October 22, 2008. Petitioners offered the testimony of 13 witnesses who...
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