decided: October 5, 1978.
COMMONWEALTH OF PENNSYLVANIA, DEPT. OF ENVIRONMENTAL RESOURCES AND CARROLL E. DITZLER ET AL., APPELLANTS,
CITY OF LEBANON (TWO CASES)
No. 403 January Term, 1976, No. 409 January Term, 1976, Appeals from Order of the Commonwealth Court of Pennsylvania at No. 107 C.D. 1975, reversing the Adjudication of the Environmental Hearing Board at Docket No. 73-304-W and 73-314-W.
Egli, Reilly, Wolfson & Feeman, James T. Reilly, Lebanon, for appellants at No. 403.
Michael S. Alushin, Asst. Atty. Gen., Harrisburg, for appellant at No. 409.
Samuel G. Weiss, Jr., Lebanon, for appellee, City of Lebanon.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Manderino, J., filed a dissenting opinion in which Nix, J., joins. Packel, former J., did not participate in the decision of this case.
[ 482 Pa. Page 68]
The City of Lebanon, Pennsylvania, which began to fluoridate its water supply in 1972, sought permission of the Department of Environmental Resources (DER), to cease such fluoridation; the request was denied. By this appeal we are asked to determine whether the DER has the legal authority to compel the City of Lebanon to continue with the fluoride treatment of its water supply and, if such authority exists, whether in this case the DER exercised that authority without abusing its discretion. We conclude that sufficient authority is vested in the DER by statute to prescribe continued fluoridation and that the agency's decision
[ 482 Pa. Page 69]
with regard to Lebanon's proposed permit modification was a reasonable and justifiable exercise of the department's statutory authority.
The City of Lebanon was issued a water supply permit in 1970*fn1 which authorized construction and operation of a water treatment plant for the city to replace the one then in service. The permit specified that the water to be distributed from the new plant would be fluoridated.*fn2 By November, 1972 fluoridation was in practice at the new plant. On January 8, 1973 the City Council of Lebanon passed a resolution requesting the DER to approve a revision of Lebanon's water permit so as to eliminate fluoride as a component of the water to be furnished to citizens of Lebanon, to the end that fluoridation could be discontinued. When DER denied the request, one Daemon C. Strickler and certain other citizens of the City appealed to the Environmental Hearing Board,*fn3 and the City of Lebanon intervened.*fn4
[ 482 Pa. Page 70]
The Board, one member dissenting, sustained the action of the DER in refusing to alter the permit so as to allow discontinuance of fluoridation.
Lebanon appealed this decision to Commonwealth Court and Carroll E. Ditzler and interested proponents of fluoridation, see note 4 supra, were allowed to intervene, thus bringing together all of the interested parties. The Commonwealth Court reversed the order of the Environmental Hearing Board and directed the DER to allow Lebanon to discontinue fluoridation of its water supply. 22 Pa. Commw.
[ 482 Pa. Page 71132]
, 348 A.2d 166 (1975).*fn5 We granted allocatur,*fn6 and will reverse.
In creating the DER,*fn7 the legislature in the Administrative Code charged that agency with, among other things, the duty of administering the Water Supply Law, supra note 1. The purpose of that law is indicated by its title: "An act to preserve the purity of the waters of the State, for the protection of the public health." The Water Supply Law also empowers the DER to use its judgment as to whether "the proposed source of supply appears to be not prejudicial to the public health." 35 P.S. § 713. The Administrative Code also contains provisions concerning water supply, including the requirement that no waterworks may be constructed or extended without written approval of the DER. Waterworks permits issued by the DER are to "stipulate therein the conditions under which water may be supplied to the public." Adm.Code § 1918-A(1), 71 P.S. § 510-18(1).
In the discharge of its functions under the Water Supply Law and the Administrative Code, the DER has issued rules and regulations. 25 Pa.Code § 109.1 et seq. The term "water supply" is defined to include "any and all water treatment, storage, transmission and distribution facilities." 25 Pa.Code § 109.1. The stated purpose of the waterworks regulations is "to protect the public health through the proper design, operation and maintenance of water supplies." 25 Pa.Code § 109.2. Written approval by the DER is required before a water supplier may make any change from previously approved specifications affecting the treatment process, including the addition, alteration or discontinuance of any protective measure. 25 Pa.Code § 109.22(a-b).
[ 482 Pa. Page 72]
Where fluoridation is in use, the standard for the concentration of fluoride in the water is established in accordance with federal drinking water standards (at 1.0 mg/1). The City makes no direct challenge to the validity of these regulations,*fn8 including the provision that any change in the treatment process of water by a permit holder must have DER approval. Such a challenge is, however, implicit in the City's contention that DER is without authority to disapprove its contemplated discontinuance of the fluoride treatment.
An appellate court's scope of review of an administrative agency's order of the kind here challenged is narrow. See, e. g., Ramey Borough v. Pennsylvania Department of Environmental Resources, 466 Pa. 45, 49, 351 A.2d 613 (1976); Crawford v. Pennsylvania Department of Health, 19 Pa. Commw. 10, 15-17, 338 A.2d 727 (1975). In the hearings before the Environmental Hearing Board the City sought to establish that fluoride in water might have a deleterious effect on the potability of the water or the health of the consumer. The DER and the advocates of fluoridation, on the other hand, produced evidence that fluoride treatment has been successfully practiced in this country for decades, significantly reducing the incidence of dental caries among the populace, and without producing any ill effects. From our examination of the record we are satisfied that the evidence amply supports the conclusion of the DER and the Environmental Hearing Board that the fluoridation of domestic water supplies is an important means of preventing tooth decay, especially in children, and thereby of protecting the public health. Clearly, the DER had power, "for the protection of the public health," to promulgate its regulation prohibiting the alteration of the chemical composition of water without its approval. The evidence warranted the
[ 482 Pa. Page 73]
Board's conclusion that actions concerning the elimination of fluoridation fall within the scope of this regulation.*fn9
The remaining question is whether the DER's determination that the fluoridation of water in the City of Lebanon should be continued was an abuse of its administrative discretion. The Commonwealth Court suggested that in order to require continuation of fluoridation by any water supply permit holders, such as Lebanon, the DER must require that all permit holders fluoridate their water supplies, including municipalities which have never initiated such treatment. Assuming that the DER could, in the proper exercise of its authority, require all permit applicants to undertake fluoridation as a condition of obtaining a water supply permit (a question not presented by this record and
[ 482 Pa. Page 74]
which we need not now consider),*fn10 the fact that it has not enforced such a requirement does not render defective the agency's refusal to sanction abandonment of this beneficial health measure by a permit holder whose water supply system is already capable of fluoridation.*fn11 Since elimination of the fluoride component in water already containing it would arguably be prejudicial to public health, the refusal to approve such an action seems clearly to be within the DER's statutorily vested discretion, relative to protection of public health, and neither arbitrary nor capricious, as appellee contends. In sum, we conclude that the DER's fluoridation policy is a reasonable exercise of its statutory authority over water supply permits, and that the agency acted properly in refusing to allow the City of Lebanon to alter the formula of its water so as to cease fluoridating the municipal water supply.
[ 482 Pa. Page 75]
The order of the Commonwealth Court is reversed and the order of the Environmental Hearing Board is reinstated.
Decisions from other states upholding fluoridation of water. (See note 9 supra.)
Minnesota State Board of Health v. City of Brainerd, 308 Minn. 24, 241 N.W.2d 624, appeal dismissed, 429 U.S. 803, 97 S.Ct. 35, 50 L.Ed.2d 63 (1976); Young v. Board of Health of the Borough of Somerville, 61 N.J. 76, 293 A.2d 164 (1972); Graybeal v. McNevin, 439 S.W.2d 323 (Ky.1969); Opinion of the Justices, 243 A.2d 716 (Del.1968); Paduano v. City of New York, 45 Misc.2d 718, 257 N.Y.S.2d 531, aff'd., 24 A.D.2d 437, 260 N.Y.S.2d 831 (1st Dep't 1965), aff'd., 17 N.Y.2d 875, 271 N.Y.S.2d 305, 218 N.E.2d 339 (1966), cert. denied, 385 U.S. 1026, 87 S.Ct. 754, 17 L.Ed.2d 674 (1967); Attaya v. Town of Gonzales, 192 So.2d 188 (Ct.App.La.1966); Hall v. Bates, 247 S.C. 511, 148 S.E.2d 345 (1966); Wilson v. City of Mountlake Terrace, 69 Wash.2d 148, 417 P.2d 632 (1966); Rogowski v. City of Detroit, 374 Mich. 408, 132 N.W.2d 16 (1965); Schuringa v. City of Chicago, 30 Ill.2d 504, 198 N.E.2d 326 (1964), cert. denied, 379 U.S. 964, 85 S.Ct. 655, 13 L.Ed.2d 558 (1965); Stroupe v. Eller, 262 N.C. 573, 138 S.E.2d 240 (1964); City Commission of Fort Pierce v. State ex rel. Altenhoff, 143 So.2d 879 (Ct.App.Fla.1962), appeal dismissed, 154 So.2d 208 (Ct.App.Fla.1963); Readey v. St. Louis County Water Co., 352 S.W.2d 622 (Mo.1961), appeal dismissed, 371 U.S. 8, 83 S.Ct. 20, 9 L.Ed.2d 47 (1962); Wilson v. City of Council Bluffs, 253 Iowa 162, 110 N.W.2d 569 (1961); Birnel v. Town of Fircrest, 53 Wash.2d 830, 335 P.2d 819, appeal dismissed, 361 U.S. 10, 80 S.Ct. 71, 4 L.Ed.2d 51 (1959); Teeter v. Municipal City of LaPorte, 236 Ind. 146, 139 N.E.2d 158 (1956); Baer v. City of Bend, 206 Or. 221, 292 P.2d 134 (1956); Kraus v. City of Cleveland, 163 Ohio St. 559,
[ 482 Pa. Page 76127]
N.E.2d 609 (1955), appeal dismissed, 351 U.S. 935, 76 S.Ct. 833, 100 L.Ed. 1463 (1956); Kaul v. City of Chehalis, 45 Wash.2d 616, 277 P.2d 352 (1955); Froncek v. City of Milwaukee, 269 Wis. 276, 69 N.W.2d 242 (1955); Dowell v. City of Tulsa, 273 P.2d 859, 43 A.L.R.2d 445 (Okl.1954), cert. denied, 348 U.S. 912, 75 S.Ct. 292, 99 L.Ed. 715 (1955); Chapman v. City of Shreveport, 225 La. 859, 74 So.2d 142, appeal dismissed, 348 U.S. 892, 75 S.Ct. 216, 99 L.Ed. 701 (1954); De Aryan v. Butler, 119 Cal.App.2d 674, 260 P.2d 98 (1953), cert. denied, 347 U.S. 1012, 74 S.Ct. 863, 98 L.Ed. 1135 (1954).
MANDERINO, Justice, dissenting.
I dissent. The Department of Environmental Resources (DER) has never decided that drinking water is unsafe when it has been fluoridated nor has it ever decided that drinking water is unsafe when it has not been fluoridated. If it had ever decided the issue -- either way -- all drinking water in the state would have to be treated or not according to the DER's decision. How then can it be said that the DER did not abuse its discretion? I would affirm the Commonwealth Court.