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Pickford v. Department of Environmental Protection

December 9, 2008



AND NOW, this 25th day of February, 2009, the Court hereby grants the Application filed by Pennsylvania American Water Company to Report Unreported Opinion, and it orders that the attached opinion filed December 9, 2008 shall be designated "OPINION" rather than "MEMORANDUM OPINION" and shall be reported.



Susan Pickford (Pickford) petitions the Court for review of the order of the Environmental Hearing Board (EHB) granting a motion of the Pennsylvania American Water Company (Water Company) to dismiss Pickford's appeals of the construction and operation permits for water treatment facilities issued to the Water Company by the Department of Environmental Protection (DEP). The DEP joined in the motion. The EHB dismissed Pickford's appeals as untimely, and the EHB also determined that it lacked jurisdiction over Pickford's appeal of a DEP letter response to a complaint that Pickford submitted through the DEP's website.

Pickford argues that notices of the issuance of the Water Company's permits did not adequately inform its customers that the method of disinfection of the water supply was to be changed so that her time to appeal did not begin to run with publication of the notices. Pickford also argues that the DEP's letter response was an appealable action and thus was within the jurisdiction of the EHB to decide.

The Water Company provides public water supply to customers in Cumberland County and parts of York County through the West Shore Community Water System (WSCWS). Pickford is a licensed attorney who resides in Camp Hill, Cumberland County and is a customer of the WSCWS. The treatment facilities consist of the West Shore Regional Water Treatment Plant (West Shore Plant) and the Silver Spring Water Treatment Plant (Silver Spring Plant). In July 2003 the Water Company applied to the DEP for a public water supply permit under the Pennsylvania Safe Drinking Water Act, Act of May 1, 1984, P.L. 206, 35 P.S. §§721.1 - 721.17, to construct a new water treatment plant, raw water pumping station and transmission mains at the West Shore Plant. The proposed plant would include chloramination facilities to change the treatment chemicals in its distribution system from chlorine to chloramines.*fn1 Notice of the application was published in the Pennsylvania Bulletin on July 19, 2003. The construction permit was issued March 24, 2004, and notice was published in the Pennsylvania Bulletin on April 17, 2004. The DEP received no comments or appeals concerning the permit application or the issuance of the permit.

In October 2004 the Water Company applied for a public water supply permit to construct an aqua-ammonia feed system and two chemical unloading containment stations at the Silver Spring Plant. This feed system would mix ammonia with chlorine to create chloramines. Notice was published in the November 20, 2004 Pennsylvania Bulletin. The DEP issued the construction permit on February 16, 2005 and notice was published on March 5, 2005. When construction of the modifications at the Silver Spring Plant was completed, the Water Company obtained an operating permit from the DEP on March 29, 2006. Notice was published in the Pennsylvania Bulletin on April 15, 2006. When the new West Shore Plant facilities were completed, the Water Company obtained an operating permit on March 31, 2006. Notice was published on April 15, 2006.

Pickford learned of the change in disinfectant chemicals from an informational brochure sent to customers of the WSCWS around July 12, 2007. The Water Company then held two public information meetings on July 26, 2007. Pickford was told by a DEP official during the last week of July 2007 that permits had been granted to the Water Company for the use of chloramines. She filed a Pennsylvania Public Utility Commission (PUC) complaint on August 1, 2007, the status of which is not relevant here. Pickford states that she did not actually see the permits until she received the Water Company's preliminary objections to her PUC complaint, served on her on or about August 28, 2007. She submitted a complaint to the DEP via its website on October 20, 2007, reiterating her concerns about the potential adverse effects from the use of chloramines and asking the DEP to withdraw the permits or to place them on hold. On November 1, 2007, Rodney L. Nesmith, the Program Manager for DEP's Water Supply Management Program, responded via email to Pickford's complaint to DEP, rejecting her contentions and reaffirming the permits issued to the Water Company (Nesmith Letter).*fn2

Pickford filed a notice of appeal to the EHB on November 30, 2007, seeking review of permits issued in 2004, 2005 and 2006 and claiming denial of due process because the published notices were not reasonably calculated to inform interested parties of the impending change in chemicals. She appealed as well the Nesmith Letter. Prior to completing discovery, the Water Company filed a motion to dismiss and/or motion for summary judgment. In granting its motion to dismiss, the EHB concluded that the permits were not misleading or incomplete as there was no requirement for according the disinfection method any particular emphasis in the notices. Pickford should have appealed within thirty days of the publication of notices as required by regulations governing practice before the EHB. See 25 Pa. Code §1021.52(a)(2). Also, the Nesmith Letter did not represent an appealable action since it merely refused to withdraw or place on hold the permits.*fn3

Pickford frames her first argument as a challenge to the EHB holding that the notices published in the Pennsylvania Bulletin were reasonably calculated to inform customers of the change in the method of disinfection. She quotes from Pennsylvania Coal Mining Ass'n v. Department of Insurance, 471 Pa. 437, 452, 370 A.2d 685, 692 - 693 (1977), arguing that notices should have been "reasonably calculated to inform interested parties of the pending action.." She maintains that notices at a minimum should have identified the switch in chemicals where the purpose of the construction was to change the disinfection treatment, and she argues that the change constituted a "substantial modification" as defined by DEP regulations*fn4 and that no reason existed for failing to provide actual notice.

The Water Company asserts that the EHB only looked at the rules governing the publication of notices under the Safe Drinking Water Act and found no requirement for special emphasis of the selection of disinfection method to be used. The Water Company breaks down Pickford's initial argument into four issues, noting first that pursuant to 25 Pa. Code §109.503(d)(1) notice must only be published for applications under 25 Pa. Code §§109.503(a) or (b)(1) or §109.507, none of which apply to the change in treatment chemicals at issue here.*fn5 A change in treatment chemicals would fall under 25 Pa. Code §109.503(b)(2)*fn6 and would not require publication in the Pennsylvania Bulletin.

The DEP agrees that no special notice was required for the change in treatment chemicals from chlorine to chloramines and that the notices comply with regulations promulgated under the Safe Drinking Water Act. The DEP adds that its notices satisfy requirements of Section 504 of the Administrative Agency Law, 2 Pa. C.S. §504, providing that reasonable notice and an opportunity to be heard must be afforded before an administrative agency adjudication becomes valid. The DEP published six separate notices concerning the Water Company's permits, inviting public comment and review. Hence, the public was afforded due process as contemplated in Pennsylvania Coal Mining Ass'n.

The Water Company next argues that even if the published notices should state specifically that the company had applied for a change in disinfection chemicals from chlorine to chloramines, Pickford's appeal nonetheless was still untimely. Under 25 Pa. Code §1021.52(a)(2)(i) and (ii), an appeal must be filed within thirty days after notice of the action has been published in the Pennsylvania Bulletin or thirty days after actual notice of the action if notice is not published in the Pennsylvania Bulletin. Pickford indicates in her brief that she learned of the impending change in chemicals when she received an informational brochure from the Water Company around July 12, 2007. In discovery responses Pickford admits learning of the DEP permits during the last week of July 2007 and first reading them on or about August 28, 2007. She was quoted in newspaper articles between August 1 and September 3, 2007 expressing concerns about the change, but despite having actual knowledge she did not appeal to the EHB until November 30, 2007.

The Water Company submits that this case is similar to Grimaud v. Department of Environmental Resources, 638 A.2d 299 (Pa. Cmwlth. 1994), where the landowners argued the inadequacy of published notices of the issuance of a sewer permit. They asserted that their status as lower riparian landowners entitled them to personal notice of the national pollution discharge elimination system permit issued under the Clean Streams Law, Act of June 22, 1937, P.L.1987, as amended, 35 P.S. ยง691.202. However, even after they received actual notice, they waited six months before appealing to the EHB. The Court denied the landowners' petition for appeal nunc pro tunc, concluding that they sat on their rights for almost six months after learning of the permit before filing their petition for allowance of appeal nunc pro tunc and that the argument that personal notice would have made a difference lacked merit. Pickford admits that she had actual notice of the ...

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