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Pickford v. Public Utility Commission

June 29, 2010

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



The opinion of the court was delivered by: Judge McGINLEY

ORDER

AND NOW, this 2nd day of September, 2010, it is ORDERED that the above-captioned opinion filed June 29, 2010 shall be designated OPINION rather than MEMORANDUM OPINION, and it shall be reported

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.

OPINION

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.*fn1

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."*fn2

Petitioners' Untimely Appeal to the Environmental Hearing Board

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, __ Pa. __, 982 A.2d 67 (2009).

Petitioners' Complaints before the Commission

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.

PAWC's Preliminary Objections -- Commission Lacked Subject Matter Jurisdiction

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*fn3 and Pennsylvania Safe Drinking Water Act.*fn4 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 chlorominated 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 ...


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