HomeMy WebLinkAbout10-4504. ~ ~~
'dry iLC, ,--~...~.-~~;~,.~~_. _r~
20 ~ ":` -e'r'r l i
v !. L
G~,~t~~ ` .:TY
~" ,
r.: Y
il~ r LWr~~'~. :iii,
Susan K. Pickford Esq.
Attorney for Plaintiffs
Attorney ID # 43093
attnysusankpickford@msn. com
2612 Chestnut Street
Camp Hill, PA 17011
(717) 731-5698
NANCY COX,
PAUL GARRETT,
Plaintiffs
V
PENNSYLVANIA AMERICAN
WATER COMPANY
Defendant
:IN THE COURT OF COMMON PLEAS
:CUMBERLAND COUNTY, PENNSYLVANIA
~o - yS~l C~u;..P
:Docket No: CV
Action in Equity
NOTICE
You have been sued in court. If you wish to defend against the claims set forth in the
following pages, you must take action within twenty (20) days after this Complaint and Notice
are served, by entering a written appearance personally or by an attorney and filing in writing
with the court your defenses or objections to the claims set forth against you. You are warned
that if you fail to do so the case may proceed without you and a judgment may be entered against
you by the court without further notice for any money claimed in the Complaint or for any other
claim or relief requested by the Plaintiff. You may lose money or property or other rights
important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT
HAVE A LAWYER OR CANNOT AFFORT ONE, GO TO OR TELEPHONE THE OFFICE
SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Court Administrator
Cumberland County Courthouse
1 Courthouse Square ~~ . ~~ ~~ ,
Carlisle, PA 17013
(717) 240-6100 ~.~ ~/~~
COMPLAINT
The above-captioned Plaintiffs (collectively, the "Plaintiffs"), by and through their
counsel, Susan K. Pickford, Esq., pursuant to Pa.R.Civ.P. 1531 and the inherent powers of this
Court to issue equitable injunctive relief, file this Motion for Special and Preliminary Injunctive
Relief through which Plaintiffs seek to enjoin the above-captioned Defendant from taking action
to introduce ammonia into the drinking water system that will, through unintended but known
consequences, expose plaintiffs and the general public in Defendant's water service area to a
significant risk of contracting serious or fatal acute and long term illnesses and injury and
causing irreparable harm to the natural and domestic aquatic life they enjoy and safeguard.
Plaintiffs seek special and preliminary injunctive relief.
COUNTI
PRELIMINARY INJUNCTION
PlaintiffNancy Cox is an adult individual residing at 721 Elkwood Drive, New
Cumberland, Cumberland County, Pennsylvania and a paying customer of Defendant,
Pennsylvania American Water Company (hereinafter "PAWC") receiving water service through
its Greater Mechanicsburg service area comprised of the West Shore Regional Treatment Plant
and Silver Springs Treatment Plant (hereinafter "West Shore System") and the Grandmother of
two minor children who are also within the West Shore System service area.
~. Plaintiff Paul Garrett is an adult individual residing at 40 N. 19's Street, Camp
Hill, Cumberland County, Pennsylvania and a paying customer of Defendant, PAWC receiving
water service through its West Shore System, the Grandfather to minor children who are also
within the West Shore System service area as well as the Program Coordinator for the
Mechanicsburg Area Environmental Club, anon-profit organization dedicated to cleaning and
maintaining the Yellow Breeches and Conodoguinet Creeks and land masses affecting these
waterways. Plaintiff and his family have consistently enjoyed the use of these creeks for over 60
years. Through his association with the Mechanicsburg Area Environmental Club and in
conjunction with the Conodoguinet Watershed Association, these groups clean as much as 5
miles of these creeks yearly.
Defendant, PAWC is organized and exists under the laws of Pennsylvania, and is
lawfully engaged in providing drinking water for public consumption in Pennsylvania and
Cumberland County particularly with a business address of 800 West Hershey Park Drive,
Hershey, Dauphin County, Pennsylvania. Until Apri12009, PAWC was owned by RWE, a
Germany based gas and electric company. PAWC is now a solely owned subsidiary of
American Water. The West Shore System draws its source water from the Yellow Breeches and
Conodoguinet Creeks and serves approximately 35,000 customers in 12 municipalities in
Cumberland County.
4. Plaintiffs Cox and Garrett, (hereinafter "Plaintiffs") bring this action as individual
consumers, homeowners and landowners who will be adversely affected by Defendant's
intended acts with a substantial, direct and immediate interest in the outcome of the litigation.
5. This court has jurisdiction over this matter pursuant to 42 Pa.C.S. §931.
6. Venue is proper in this County pursuant to Pa.R.Civ. P. 2179(a).
7. At all times that Plaintiffs have lived in their respective homes the West Shore
System has provided water to their homes treated with chlorine as a primary and residual
disinfectant.
8. In 2003, Defendant obtained a construction permit to replace two aging chlorine
treatment plants with one new facility.
9. The new facility went on line in 2006.
10. In July of 2007, Defendant announced that it would begin using chloramine as a
residual disinfectant beginning in August of 2007. Defendant claimed at that time and
continuously to the date of this filing, that the switch to chloramine was necessary in order to
comply with current and anticipated United States Environmental Protection Agency (hereinafter
"EPA") regulations. (See Exibit "A" attached)
11. On August 11, 2007, one day before the scheduled implementation of chloramine
into the West Shore System, Defendant voluntarily delayed the start of chloramine as a result of
public outcry and the filing of complaints with the Pa Public Utility Commission (hereinafter
"PUC")
12. Defendant maintained the voluntary delay for three yeazs and on December 1,
2009 announced that it would implement the use of chloramine in the West Shore System
beginning July 12, 2010.
13. At no time during the three years did Defendant fall out of compliance with
current USEPA regulations while continuing to operate a chlorine primary and residual
disinfectant system. In fact, when the new plant began operation, the only testing location that
had been struggling for compliance levels, was brought into compliance and has remained well
within compliance levels to present. (See Exhibit "C" attached)
14. During the three yeaz voluntary delay, Plaintiffs, along with other concerned
customers of PAWC attempted to shaze information with Defendant regazding the unintended
consequences ofnn0 chloramine use including adverse acute and long term health issues,
environmental concerns for the Conodoguinet and Yellow Breeches waterways as well as
concerns for the effects of chloramine on the aging infrastructure.
15. Defendant knowingly refused to disclose or acknowledge the risks of these
unintended consequences to Plaintiffs and other customers, choosing instead to deny health risks
and discredit science suggesting otherwise. Defendant vigorously fought against Plaintiffs
requests for hearings on the issues at the PA Department of Environmental Protection
(hereinafter "DEP") and at the PUC and published promotional flyers to its customers
discrediting undisputed science and renowned scientists produced by Plaintiffs. (See Exhibit
"B" attached)
16. Monochloramine is a compound comprised of chlorine and ammonia. It is
attractive to water providers as a residual treatment as it is a more stable compound than chlorine
and will last longer in the distribution line. It is this same characteristic that becomes
problematic in the distribution system and the environment.
17. Monochloramine itself is currently approved by the USEPA for use in drinking
water systems for the purpose of disinfecting water and maintaining a residual disinfectant in the
distribution lines.
18. Current, respected and peer-reviewed scientific opinion indicates that
monochloramine, used as intended by the USEPA, once released into the distribution system
combines with organic, nitrogenous and iodide based materials creating new chemical
compounds identified as NDMA, an N-nitrosamine; DXAA as well as Hydrazine and Iodonated
compounds. (see Drinking-water Analysis Turns Up Even More Toxic Compounds, Cooney,
Environ.Sci.Technol. 2008, 42(22), p8175; NDMA and Other Nitrosamines -Drinking Water
Issues, California Department of Health, www.cdph.ca.gov; Occurrence of a New Generation of
Disinfection Byproducts, Krasner, Environ.Sce.Technol., 2006, 40 (23).)
19. These compounds, known as byproducts are known by toxicologists to be more
genotoxic, cytotoxic and mutagenic than chlorine byproducts currently regulated by USEPA on a
magnitude of 100-10,000 times.
20. The byproducts known as NDMA and Hydrazine have been classified as
`probable human carcinogens' by USEPA. Neither these byproducts nor the others identified in
paragraph 18 are currently regulated by the USEPA in drinking water applications.
21. NDMA is being measured for possible future study and regulation. Water Quality
Reports in facilities in Pennsylvania where chloramine is being used are measuring positive
levels ofNDMA .Accepted scientific studies classify NDMA as being among the most toxic and
carcinogenic chemical compounds known. USEPA's IRIS database lists NDMA as a significant
health concern at .7 ng/L.
22. Plaintiffs are informed, believe and therefore aver that if Defendant begins the use
of chloramine in the West Shore System, they and their families will be unnecessarily exposed to
NDMA, a highly toxic chemical as an unintended consequence of the use of chloramine.
23. Plaintiffs believe and therefore aver that Defendant is aware of the scientific
opinions regarding NDMA and the threat it poses to water consumers including Plaintiffs and
their families.
24. Iodonated byproducts formed in chloraminated water are found by current peer
reviewed scientific studies to be more cytotoxic and genotoxic than their chlorinated analogs.
The precursors that create these iodinated byproducts are present in Plaintiffs' source water.
25. Plaintiffs believe and therefore aver that if Defendant begins the use of
chloramine in the West Shore System, they and their families will be unnecessarily exposed to
this highly toxic chemical as an unintended consequence of the use of chloramine. Plaintiffs
believe Defendant is aware of the scientific opinion regarding Iodonated byproducts and the
threat it poses to water consumers including Plaintiffs and their families.
26. Plaintiffs are informed, believe and therefore aver that Defendant is aware of the
unintended and fatal consequences of chloramine on aquatic life and has acknowledged same in
its promotional literature. {See Exhibit "A" attached)
27. Because chloramine is more stable than chlorine, it does not dissipate when
exposed to air. In the event of a water main break, chloramine will not dissipate before it reaches
a stream or creek and pose a threat of a major fish kill in the Yellow Breeches and Conodoguinet
Creeks.
28. Since Defendant increased the water pressure in its service area, Camp Hill
Borough alone has suffered approximately 50 water main breaks in proximity to creeks, streams
and watersheds.
29. Plaintiffs believe and therefore aver that fish and pond owners in Defendant's
service area will be adversely affected by Defendant's use of chloramine in that they will be
unable to safely maintain their fish without additional financial hardship.
30. Defendant's service area is home to the beautiful Yellow Breeches and
Conodoguinet Creeks known internationally for quality fly fishing. Plaintiffs have enjoyed the
use and beauty of these creeks and as members of the community where they flow have an
obligation to steward them.
31. Because chloramine is the least effective biocide of the available alternatives,
Plaintiffs believe and therefore aver that they and their families will be more vulnerable to a-soli
bacteria, rotavinases and polio 1 exposure than with the continued use of chlorine.
32. Plaintiffs believe and therefore aver that Defendant is aware of the accepted
scientific opinion, including the World Health Organization Guidelines which indicate
chloramine is an ineffective biocide.
33. Plaintiffs believe and therefore aver that Defendant is aware that chloramine use
unintentionally causes formation of nitrates which have an adverse effect on wastewater systems,
watersheds, infants and newborns.
34. Defendant claims that the implementation of chloramine is necessary to comply
with USEPA byproduct regulations. However, the West Shore System is currently in
compliance with all USEPA and DEP Stage 1 regulations regarding reduction of chlorinated
byproducts known as TTMs and HAAS.
35. Plaintiffs believe and therefore aver that Defendant's West Shore System is also
in compliance with the USEPA Stage 2 regulations requiring compliance under a different
calculation for TTHM and HAA averages.
36. USEPA Stage 2 regulations do not become effective until October 2012, over two
years beyond the date of intended implementation of chloramine this action seeks to enjoin.
37. The assigned Stage 2 compliance date for Defendant's West Shore System is
October 13, 2013, over three years from the date of this action.
38. Plaintiffs are informed, believe and therefore aver that Defendant's West Shore
System will comply with USEPA Stage 2 regulations without the use of chloramine.
39. Plaintiffs are informed, believe and therefore aver that Defendant has operated for
the past three years in full compliance with USEPA Stage 1 and 2 regulations and without
hardship resulting from failure to implement chloramine in 2007 as originally planned and would
be able to continue operating in compliance without hardship until June 2012 if injunctive relief
is granted.
40. Plaintiffs believe and therefore aver that filters, whole house or point of use,
cannot remove the byproducts formed by the use of chloramine. If in fact, such filters did exist,
they would only protect Plaintiffs within their home and would deny them the use and enjoyment
of their community. Such filters would also place a high financial burden on Plaintiffs.
41. Plaintiffs allege that an injunction is necessary to prevent immediate and
irreparable harm that cannot be adequately compensated by damages. The only manner in which
Plaintiffs can reasonably protect themselves from harm caused by unintended consequences of
Defendant's action would be to move out of the water service area. Such drastic action would
require a relocation out of a 12 municipality zone, leaving homes they have lived in for decades
and requiring them to move away from family and friends and work situations. This would be an
unwarranted and unsustainable financial and logistic hardship.
42. Plaintiffs allege that greater injury would result from refusing an injunction than
from granting it, and, concomitantly, that issuance of an injunction will not substantially harm
other interested parties in the proceedings.
43. Inasmuch as Defendant has operated its West Shore System successfully and in
compliance for the past three years on chlorine without chloramine, a preliminary injunction will
properly restore or maintain the status quo .
44. Defendant's intended action constitutes a public nuisance in fact. Plaintiffs are
likely to prevail on the merits.
45. A Special and Preliminary Injunction is reasonably suited to abate the offending
activity, to wit introducing ammonia into Plaintiffs' water system where, once in the system, the
home environment and the aquatic environment, it will create additional chemicals that are
directly harmful to Plaintiffs' health and that of all customers and aquatic life within Defendant's
West Shore System.
46. A preliminary injunction will not adversely affect the public interest. Indeed, a
preliminary injunction is necessary to protect the public interest.
47. Plaintiffs are prepared to post a cash bond which, under the circumstances,
Plaintiffs respectfully request be set at a nominal amount.
WHEREFORE, Plaintiffs respectfully request this Honorable Court issue a preliminary
injunction enjoining Defendant from introducing ammonia into the water supply of its West
Shore System until such time as a formal hearing on the injunction is held, so as to avoid
immediate and irreparable harm that will occur in the absence of such relief.
COUNT II
PUBLIC NUISANCE
48. Plaintiffs re-allege and incorporate by reference paragraphs 1 through 46 of this
Complaint, and further allege as follows:
49. Plaintiffs are paying customers of Defendant PAWC and consumers of the water
they provide through the West Shore Regional Treatment Plant and the Silver Springs Treatment
Plant also known as the Mechanicsburg System (hereinafter `West Shore System").
50. Defendant's West Shore System services approximately 35,000 residents in
twelve (12) municipalities.
51. Plaintiffs have no option with regard to choosing water service as Defendant
PAWC is a lawfully operating monopoly.
52. Plaintiffs must necessarily use the water provided by Defendant for drinking,
bathing, washing dishes, cooking, watering lawns and gardens, hydrating pets and cleaning.
53. Plaintiffs enjoy the recreational use of and responsibility of stewardship for the
Yellow Breeches Creek, the Conodoguinet Creek, the Susquehanna River Basin and the
Chesapeake Bay Watershed, all within the geographic boundaries of the Defendant's West Shore
System service area.
54. At all relevant times, Defendant knew that chloramine would combine with
organic, nitrogenous and iodinated materials in the distribution system creating known and
unknown chemical compounds and that Nitrogenous and Iodonated disinfectant byproducts are
among the most toxic to human life. Defendant knew that chloramine, even when used as
designed, intended and directed would unintentionally create byproducts of a highly toxic
variety.
55. At all relevant times, Defendant knew that chloramine, even when used as
designed, intended and directed would be immediately fatal to aquatic life in the Yellow
Breeches and Conodoguinet Creeks in the event of a water main break similar to the ones
experienced throughout 2009 and 2010 in Camp Hill.
56. Defendant's two plants in the West Shore System sit on the Yellow Breeches and
the Conodoguinet Creek. In the event of a plant malfunction, deadly chloraminated water would
pour directly into these vibrant and valuable bodies of water.
57. Plaintiff believes and therefore avers that Defendant is aware of reports of
individuals in Pennsylvania and other states claiming to suffer acute adverse health symptoms
related to the use of chloraminated water including skin rashes, respiratory ailments and
digestive problems.
58. Defendant's intended action to put ammonia into the distribution stream of water
forming chloraminated water and resulting in many unintended consequences including the
inevitable formation of many highly toxic byproducts, threatens the public health and constitutes
a continuous, substantial and unreasonable interference with the public's use and enjoyment of
their health, their water, their homes and their community in that:
a) These unintended consequences pose a threat to Plaintiffs immediate and long term
health
b) These unintended consequences pose a threat to pregnant women, infants and fetuses
c) These unintended consequences pose a threat to aquatic life in creeks and streams
aquariums and ponds that Plaintiffs enjoy and help maintain and clean
d) These unintended consequences will require Plaintiffs to pay additional expenses
involved in professional grade filtration
e) Home filtration will not protect Plaintiffs from highly toxic byproducts
59. At all times relevant to this action, Defendant was aware that its intended use of
cloramine would create unintended consequences which threaten the public health and cause a
continuous, substantial and unreasonable interference with the public's use and enjoyment of
their health, their water, their homes and their community. Defendant's acts are in reckless
disregard for the public's safety and wellbeing.
WHEREFORE, Plaintiffs request this Honorable Court, upon hearing and determination
of their cause of action, awazd the following relief:
1. Prohibit the anticipated nuisance by ordering that Defendant shall not introduce
ammonia into the drinking water system of its West Shore Regional and Silver
Springs Treatment Plants.
Respect submitted,
san K. Pickf d, sq.
Attorney for Plaintiffs
ID # 43093
2612 Chestnut Street
Camp Hill, PA 17011
717-731-5698
VERIFICATION
I, Paul Garrett, do hereby certify that the facts set forth in the forgoing document aze true and
correct to the best of my knowledge. I understand that false statements herein are made subject
to the penalties of 198 Pa.C.S. 4904 relating to unsworn falsification to authorities.
Date: ~~O/~
Paul Garrett
VERIFICATION
I, Nancy Cox, do hereby certify that the facts set forth in the forgoing document are true and
correct to the best of my knowledge. I understand that false statements herein aze made subject
to the penalties of 198 Pa.C.S. 4904 relating to unsworn falsification to authorities.
Date: 7~ ~Q / d
Nancy Cox
ou
v
m
m
sv
n.
fy
O
C
n
~_
O
41
(D
~
tOD
~.
O
~
~
o.
O
~
~
~
N
O
O
~
O -I
~'
m
-o
~
~
~
O
cn
CAD
~
O
~
O
~
~
Q O
Q..
v
-
o
o
`~
~
O~
~
~
p
`e
CD
'~ N-r
O
~
Q
v
a
0
n.
~
O
~
p
T
fll
~
O
~ ~
~
~
co
~
0
cn
~
'a
~
N
~
-
Qrl
N
~
~ O
-O
~
°
a
m
0
~
r:
~
~
~
C
fl?
r+
N ~
~
c~
: ~
~
0
a
O
~
~
~
(D
~
C7
,Oy
O
CD O
~
~
~
°
°'
~~
~'
~
O
-0-''„
n
~
''~
~
~' v
Q..
~
o
cn
~
~
C
~
O
~
~
v
(D
~
(D
~
Cp~
Q ~
~
o
-`
0
-~
~
Q.
(D
N
n
~
N
O
~
(n
<
O
O
O ~
O
~
~
0
Q
n.
O
~
~
~
p
O
~
O
~ Q.
~
~
~
~
~
~
~
O
O
v
~
~
v
O
O
O
Q
O
(D ~
~
con
~'
~
c~
~
CS
<D
c
cn
~
~
cD
-ti
C
~ O
n
~
o
~
~
cD
N
-1
O.
N
~
~
~
CD
rr
O
~
~ ~.
O
o
~
cD
o
°
(n
Q
cn
~.
~
~
~
~
O
O ~
~
o
cn
~
~
g
~
r«
~
~
~
~
O
~
~
~
Q 4`
~
~
~
~
o
~
~
O<
CD
N
O_
N.
(D
O
~ (~
~
ro
~
~
~_
~
~'~
D
CD
~.
O
~
"~
O
COD
(D
Q
(n
C
Printed on paper con[alning recycled content. Eacn tan of recycled paper saves 7,000 gallons of water
3
(T
~ ~
~
S ~M~JJ m '~
~
D
!
z Q
~; G-. 2
~ '" ~
r
3 ~ C ~ ~
~N
`
° a=_
m
O
.-~ s
~
3 ~
~ D ~ ~ ~ G
~
ryJ
~
A
_.
~
O
N
C7
3
vi
y
3 C
<
'p
N
CD
O
~
\
~
r+
CD
~
~ ~
,~
~
~
<
7
O
O
~
~
cs
'n+,
~
O
~
CD
\
O
O_
X
~'*
~ ~
N
O
!D
~
~
CD
a
~
7
~
~
\ ~
m
~
3
O
O
O
n
~;
O
7
a
n
~
rf
~
~
~
a
CD
~
N
O
O
~
~
~
to
(D
~
,...
0~
~
O
~
~
O
~
~
~
~
~
~j
N
~
Q
~
Q
r0-r
N
~
r;
o
~
r«
O
~
O
~
-~.
(n
O
O
~'
~
CD
>~
O
~
cn
cD
O
~
o
m
o
~
~~~ ,/
o =
O ~, -O w C O
O f0
cD _C O `O ~~ c0 O U .~ 7
y C O (0 ~ U C N (O C 'X R .C E
y N .c O 'O (O ~~ N c9 O 3 y Y ~ w
T ; N L 7 ~? 3 N N 'O N 0=
'y~V., N p N O V a a0+ O t N E N YO N N
V " ~~ c N o ~- o a~ o N ~3 ~
a ~O a~ o `o ~ > ~ ~0 w E ~ ~ ~ N m
y ~ N a t C .U c0 ~ c N j 0 O ~!' O
w N 3 y N~ N ~ f0 cQ O O N ~ N
y N N j, N f0 /0 U 'O .N v N N N O '~
7 s ~., n d O
~ ..., v -o .~ ~ m .S o n -°c m N R 0 ""
R ~ m V U > ~~ Llp 7 67 N~ a C N
O L C 7 (O 7
°o' ~ ~: .~ c xo E ~° v r ~' ~ 'a ~ m
a c 3 m E o m° Y m~ O L -a ~ Y w °~,'
R
a m m y in o m m c U a o y R ~ O
y a c w o 3 0 3 0. t ~ m> c o o ,~
W N N N ~ L •O-' C L >y. a N R m 3 C p• O C
~ n `o a m~ ~$ 3~ e o a.
aL.. R OA by 9 .L.1 at-+ L y N N N N N> > E ~ O
3 °; 'y Y .3 ~ U ~ ~ ~ ~ t ~ .~ a ~ ~ ~
Q o ~ o
3
N ~ o
V O c6 ~ N Z
3 O 'c ~ -o = ~ c u"
y~ N C ~ '> O W O O O
d m
T y U 3 N~= E Y10 C
a m .o a m p = m Y o
J
d d U T UCO O N n ; Q
v~ fO ~~ E aci z a
w x ~ ; °: (j ~
a~ a> m o 3 a~ a
f0 N~ E; 'V c C E C~
(O N N
'Q cY10 - ~ ~ C U ~ S ~ UCO
d R 3 L N a`~ E 3 a _
'° ~ c ncn ° E ° °-' ~ cn
3 ~, m 'c c ¢ ~ .Z U
qp c o c~~ c o LL;
~ N U U N N-
~ ~ O~~ m i Z m Z~
9 C •O O s O C N C ~ 3 y
T "' O O N C R W L ~ N
~ c° y c o~ a Y° 3 c E
G7
'; 3 N v ta0 ~ c0 y~ Z ~ O
m y~ a~ m_ c ~ 0 3
3 7 N ~ t, ~ ~ •V C N 'O
._ ~- .N ~ .O Up ~. w d Q (n f0
C) O y
Y O N (0
C ~ y N m a0+
~ C Y ~ C (0
o~ W
~ 3 •
~ m
~ Y
c
c ~ o L 3 E
Y ~- ~ °0 0 ~ 3
~ 3
m
u m c N -o c
3 w
c m o~
ao
~ m
C (n c0 O ~ ~' y
t .L-~
R ~
~
C C
U
C
O ~
cY
Y
N
(0 N U .
,-.
O
c
R l
m
c L~~ m E
2~
m m
V
. 3 N c0 0
+R+
E
7 f0
~ n ~ y Y c E
O
U
O O d
D
=
U L l6
R
~e L1D
V
-
!
~ w c o
y
o
E ; n
O
t
~
O ~ N
y S] L b
D
T
y
c C
a t ~ o~ c ?~
~ o o
c y
~
o
y a
aci c
.ar 3 c E ~ R
c
~ '~ E
0
c
a O n0 4i
+~, N
U .
~'
C C .O+ c
o
V N
y U .
N
C R ~ O y0 'y 0. C 'O
t
?. N N. R O O. ~ N
a s 3 a .~ o m` .N OA
a °'
0
~ ~ *= ,~'
p •~ O ~ ~ U
~ O~ N N ~ ~ O
•N c t m i, 3~ 3
O U
C ~ ~ ~ C W
Vl ~ O 3 ~ ~ i
N ~ C ~ O.
N ~
O _ O E II
C C C C U a..r f0
O j ~ V b4. ~ } N
r' E V~1 G N U .. O N
f0 ~• C ~.. Q C ~ `N O
~ wa ~,ca a3v ~
y ~ ~ ~ > c e 3 u~
c •o « ~ T ~ ~ ° ~`
c `' ~ ~ ~
d Q y N C {~ E ~- •p
~ m 'm ° a axi v z°° coo
m
O
~ ~
i+ ~,_
O jamj`
V 52
O C~CCC
cl
~ ~
~ ~
e m
m v
E "
W f~q
c c
N O N ),
.U ,C ~
N N w O N
y ~ C L Y
c a 'y o
~ ~ > N "O y N
U 7 ~ «"C+ ~ C
w O L C j N ~
'O L 3 N N a
L a+ t N N
> m
C~ C ~ 7 N N~
~ v O C ~ >' N L
~ ~ N y O N (0
~.+ .O h=0 ~ .L-~ N d N
R~ m m c m c
N O a O la n O C
y w ~ ~ 'a $ o
f0 O O R C y N
~ L~ c E o R
m a
O U '~' N C ~ ~ -O
a s c
O N '-' GO U N (O (0
1, O ~, ~ O
N ~. C N L U.0
O ~ U ~ .L+ j ,C
O -
cn a U °3 a .S E «°
C N C O N
(O ~
O ~ U
m a"i °' o n`o ~
a.
~ a c y c~ m E
o ~ ~~' o ~o E~ 3 0
~`' C ~ 'a~+ •+ N N
'00 C ~ O C U (O f0 (0 fn
n a
C •m O D (0 ~ N «O+
V O O E O ~ ~p O E 3
L d O L N Q
r V __ C U O f0 O f0 y
l6 y c0 R~ U> N C
3 9 C~ ~' w N N j C
y O U
ayi c~ y y~ R N E
a ~ N m a o ~ E
E N O ~ T~ N~ O U
y ~ a
Q ~ aci N ~ ~ m o ~
R o ~ n aci .N ~ a` co >'
7. C a bD 'O > C N N
y ~ ~ C C 'C '~ ~ C C
C V N N d C N
d c 3 c p x~ ~~
a~ ~ o
y O
C v O N O *' O W a U
U ~
~ N c c a o c
CO O~ ~ O W C ~ .O T
L ~ C U E E L~ O O '-' L w
+~ ~ m w O O _+ Up ~ E N U d
~ N y y J c0 ~. .D (0 ~ O V
m
,C CO ~ ~ ~ N ~ c0 (O ~+ ` C N
y~ a~ o f° w' °- E ayi
U N ~ C ~ 41 C O U 0 c0 C N
~° E~ 3 c m~ c ~'~°. c o~~
y >. O O ~~ .C > O N O FL- OC
_`o
U i+ N R~ O L Q' ~ l0 N y= N
y (CO N > (Yll = O N p N E N O ~'
a~ C U L L y C E O
N ~~ - U a-/ __ N C Y
w N W N L C ~ 3 y ~E C `...s 'y 0 n
f0
c aNi ~ w y N +~ 3 'E y~ m E c -o ~
w o o f _~ ~ c~~ 0 m -° -£ ~ n a~
~ L
C O O N 'n E C (O n O O .O. U ~ (~'O
;? ~? y m 3
~ °' a a n .o o~ .a L~ a 3 o m T
a c y n t i n r-- m o m a~ ~c .o
`o N R m Y c e m m co ,•- v~ a o~
~ N c L~ c~ •c ~ R c Q~ a~
t]p y O >. tRi O
U ~ a O p E R "O 7 E ~ N> l0
in E o cLi ~ r 3 F°- ~ m v 3 a m m y
o
a~ ° a~ a~ o
~ Y ~ o a
-Y 7 N 'O
y ~ O N ~ ~
a N ~ .o c
.E t ~ ~ t °c
a _o .N ~ o ~
N N ~ O «+ -
y N N n~ 3
o E ° °x' `c° 'o
E 'N ?~ ~,
c U ~ .~ >. m
O .~, ~ N N p
0
aoi ~ y 3 w ~
U ~ O O
R
v .Q ~ ~ ~ m
a o .c °~ ~
c
m
c .R ; m ~ ~
m T ~
t > N L L ~ L
+" N U ~ ~ aU+
__ c ~ O ; c ,3
O O
N O N N
t a ~ ~ ~' U
3 r- ~ N S] ~ YO
N C
N ~ y N
±~ (O a+ N
T - +~•~ (0
N N ~ N~ w 3 ~
y ~,, v- E ~
~ ~ _ ~ °' ~ ; a; o
y .. m ~ ~ ~i .~ N Q
y .3 ; ~ m ~ o a
x a m °' vi ° «? m °~ s
~ ~~ m~ E `0 0 0
~ M y R y N f0 (O T O T
e U w~; a c~
7 R ~ ~ ~ ~ ~"~ ~ ~ ~
Q. ~ tC0 ~ F•-• C Y N C C
w ~
!0 = y N C R .S O' O C
N O «O+ O N j N c0
Y 'p U ~ ~ ~ e-1 ~ N ~ c0
L y ~ C C~ > N V L
> a ~ E a~ .a? o n
~~ d~ j T O y y U O N
w L > ~
~ ~' t ~ ~ o ~ ~ L° a
` c `m «~ Z m vi y v_i
m o~ c y C a`~ o R
t w t >, y ~, a E E~ n
a'
uc0i ~ aEi c ~' c E o `°
p N C ~ O ~ V O L 'p
C to in ~ a o o E v .c c
. ~ f =
~:,
~~ t~tdnej~ c~~al
~, hWater usec~~IC
~° ,„' ,
~Thd Cfiange.
Campi ~i~f~*
Neva: -~F~'~.(
,.P m_~ _.,.,w. ,. __,._,,~.~..,>,.„. , __s..e ,......~.,.
4 ~,>m~~. . ,.
~
£q ~,~y _
}t
~ _
v ; _. ,.
yl
t ~
~
S
~
~..
~ '
~
r
1 p ~ t %
~~' ~ ~+ ~{ ~ r 3 j 4 ~ r b +r r
fit,
~~ r _
A t
s ~ ti a
~
z
C.~°' /: y ke,3.:i c f ' a ~ ~ ;i4 t ~G c ~~ r
4~
S~ !~
~
f 4
~
_.
~
n r
_5 :
'.
. ~J
~
~
~
~~
~ ~~
.
-c, i ;w ~ 4'
t
' f ,
r".
-
x
~' ~
--
Z'~
- - ..
2
~ - Y y ~ {
Y ~`--~
~ ~
"b
~
T .,,~
~
~
n
~ i~ c
~ I
o Y Y
~
~[~ 1 5
1 f'
Aat~~ ~~~~~~~~~y~~~~c~~~~s~
}
Y~ ,. ~ y
y
~
M1
F ~ '
~ ~
~
t ~ 4 ~.
ti ,
~~. ;
its disinfectior- process from
changing
~~meriean Waterpwilf be A~
.
.
~a-move that wilt ~address,future drinking water standards and reduce-
'
.
. c~~rie in~ your dnnkirg water:,
°,k•"_Sfa~e~, have been~usmg chloramines which is acombiriation of '
we treat with chloramines in
decades. In fact
;disinfectant for
~'asa -
,
.
:
~across the state. Chloraminated water can be used the same as
d~rirtking; cooking, bathing and all of the normal uses we have for water.
~,
~..~ea !e..::~!:o,need..tv,.td!~_speciaf care :~~lth chlcrami;tate: watdr:.. ~-_ -
like: chlorine, must be removed from
cents and fish owners. Chloramines
,
riey•dialysis process and from wafer'that is used in fish tanfcs or ponds:
~:-.
` {
„
,.
mines. will affect Pennsylvania American Water customers- in
Toro, Enola, Fairview, Hampden,: Lemoyne, Lower Allen, Newberry,.
" Kingstown, Shiremanstown, Silver Springs, Upper Allen, West -
FairvreVU a~ -.~~..ti sburg.
~: -~.
U
.'
-..:
I~~
e~~
t. '': t
i ~•. ~z•,,; t
`~ ~ ~\
t
~,±•~
~~ ~~~
_. ___......., r,,,,,,,,,,, ,,, ,,,, ,w,,,a~lJw~~, cnwuuu ~,Ity, l,larlon, tSUtler and
Brownell/Fallbrook systems.
Can I continue to use the water as I always have?
Yes. Chloraminated water can be used in all the same ways as you did prior to
the change, including drinking, bathing, cooking and cleaning. However, there
are two groups of people who need to take special care when using water with
chloramines: kidney dialysis patients and fish owners. Please see the related
questions on this page for more information.
Is there harm in washing open wounds with chloraminated water?
No. The small amount of water normally used to cleanse a wound does not
cause a problem. Urtually no water comes into direct contact with the blood-
stream, so the impact is minimal and is not a concern.
Will my home water-treatment system remove chloramines?
Some systems, such as granular activated carbon systems, can reduce this
level. Other systems, such as water softeners and reverse osmosis systems,
are typically not designed for this purpose. If you have a home treatment
system, consult your equipment manufacturer for specific information.
Will chloramines affect my swimming pool?
No. You will stiff need to treat your pool according to manufacturer's recom-
mendations. Typically, a free chlorine residual must be kept in the pool water to
retard algae and bacteria{ growths. A test kit can be used to measure this free
chlorine residual. Contact your local pool supply store for additional details.
Will the water kill my ornamental plants,
vegetables, fruit trees or shrubs?
No. The low levels of disinfectant in the water should not have any effect on
plants. Bacteria that assist the plant in its growth live throughout the soil, and
are generally protected from the chloramine concentrations by the soil layer.
Soil tends to break up the disinfectant, thereby reducing its {evels in the water.
Kidney Dialysis Patients
Why do kidney dialysis patients need to be concerned?
In the dialysis process, water comes in contact with the bloodstream. In this
process-rhlnramines-;n-.water-wnUld be tnxic~ yus# aS nornial rh{QrlnP wc~4~lct bP --
toxic. The chloramine content of this water can be removed by adding ascorbic
acid or by filtering the water through granular activated carbon prior to use.
Medical centers that perform dialysis are responsible for the proper pretreat-
ment of the water sup~ily. Consult your physician if you have any questions.
Have hospitals and dialysis clinics been notified about the change?
Yes. Medical facilities have been notified of the change; however, you should
remind your physician of this change in the disinfection process. All dialysis
systems already pretreat their source water, and many will have to modify their
equipment to remove the chloramines,. ~ .
What should people with home dialysis machines do?
First, check with your physician. He/she will most likely recommend the
appropriate type of treatment. Many home dialysis service companies are able
to make the necessary modifications.
Can dialysis patients drink and use chloraminated water?
Yes. Everyone can drink the water because the digestive process neutralizes
the chloramines before they reach the bloodstream. Even kidney dialysis
patients can drink, cook and bathe in the water.
must be r~moyed fton
water to be used irr aij
r - ~~
2~quanum,~`I~c~st: ~ ~+
sell'a dish t- ~"`
_ s_, ;
~,:
'~
'.qS
".:~
;+ ~~ let" (rly' ~a~ 1f
~lCIOC t0 Et5if1~>l~
huh tank; will it.'
f ~;
ul~ your lo'
~ecific assis- <^
nm~ride,
i~er~s~`".'
~r my
n,- w
no~w~~ Jh~~3 ~:~,
tang r `~ ~ f.=yau ,~~ ,. ":,
carr.pas5- .e~"tyafe`~-fF~rough
,,~ ~~,~
a:grant~lat~~acttva~ect'~~ar~dn
.frltec.andi~Uov~sufficitir-~t,.; ,
~:
cantae~tfrrie foF;adequate'
retno~€,~Is;te~occu~. ,
f~a,~h~ataq~re~ ~.~4t~~~-
b~F C~~~if~~c~ nlx~ ~-,:x~x ... _
x'' ~ k
~ '
~ ~ ~
;~,_
_ .~~. ,
Pennsyivania
American WaterQ
800 West Hersheypark Drive, Hershey, PA 17033
AUTO'"'S-DIGIT 17070
COX ROBERT F
721 ELKWOOD DR
NEW CUMBERWD PA 17070-1545
~~~Ill~~~lll~~~l~~~lll~~~~~~ll~l~l~~l~~i~l~l~~~l~l~~~itl~~~
rnt~un~tu
FIRST CLASS
U.S. POSTAGE
PAID
PERMIT N0.323
YORK, PA
T48 P1
r.
~~:,, 1 ~
r.;
i dv
1
When will the change take place and how can
I obtain more information?
Pennsylvania American Water plans to transition to chloramines beginning
the week of August 12, 2007. For those who are interested, Pennsylvania
American Water will be conducting two informational sessions as follows:
Lemoyne Community Building
510 Herman Ave., Lemoyne
Thurs., July 26 at 10 a.m. and
Thurs., July 26 at 7 p.m.
To register, call 717-531-3228, and please leave your name(s), municipality in
v.hich ycu live any phony nu~~~ber.
Are there any health problems with drinking chloramines?
chloramines have been used routinely in the United States and Canada for
many years without any problems. EPA widely accepts chloramines as an
effective treatment to prevent the waterborne transmission of parasites capable
of causing sickness. Currently, Pennsylvania American Water uses this
treatment process in its Norristown, Ellwood City, Clarion, Butler and
Brownell/Fallbrook systems.
Can I continue to use the water as I always have?
Yes. Chloraminated water can be used in all the same ways as you did prior to
the change, including drinking, bathing, cooking and cleaning. However, there
are two groups of people who need to take special care when using water with
chloramines: kidney dialysis patients and fish owners. Please see the related
questions on this page for more information.
Is there harm in washing open wounds with chloraminated water?
No. The small amount of water normally used to cleanse a wound does not
cause a problem. Virtually no water comes into direct contact with the blood-
stream, so the impact is minimal and is not a concern.
Wi11 my home water-treatment system remove chloramines?
Some systems, such as granular activated carbon systems, can reduce this
level. Other systems, such as water softeners and reverse osmosis systems,
are typically not designed for this purpose. If you have a home treatment
system, consult your equipment manufacturer for specific information.
Will chloramines affect my swimming pool?
No. You will still need to treat your pool according to manufacturer's recom-
mendations. Typically, a free chlorine residual must be kept in the pool water to
retard algae and bacterial growths. A test kit can be used to measure this free
chlorine residual. Contact your local pool supply store for additional details.
Will the water kill my ornamental plants,
vegetables, fruit trees or shrubs?
No. The low levels of disinfectant in the water should not have any effect on
plants. Bacteria that assist the plant in its growth live throughout the soil, and
are generally protected from the chloramine concentrations by the soil layer.
Soil tends to break up the disinfectant, thereby reducing its levels in the water.
,~. ~+,, , ,,,~. L
y .:
"'~iRsh, rep 1e~,
turtles and
a]~hp b>Ians
. ,.
~ Y
~~
;;
f :.•
i
~~ ',f
t
`:
~,
~~ .
~: ,
~~;
~~ ~~ Fic.1rN.Yt c:Q61StJtE-yOUF f G
'r ~}etr~ttl[~ ~065p~CIfiG ~SS~i
~ ~~~
ta~nc~ orf recommendyd~c~'=`
product: '
.,
~~ I~T~~,'t~tap.'water sit
~~~~ ~~ 4s~ii~ ;:;far t1f1y,
Y ~ , s, s ~
~., ~ ~
- - R
,r Chlocamine' is ar very stable
~= dtsirita~rt_~!and W-If.re`tnairx'
i~water far week` If you do
°: ~~~
riot want Col ise ~ d~smf~c<
rant removal'chemiial~, you
' cart past th~,water through
a. gra~ular.,activated carbon
fiC>;ee and allow sufficient
contact time:for adequate-
removals: ta' occur .. .
Q~>`#~lctramines-have ttr•
~~ bra removed •if anly a
sm'aTf~ mount of water .
is used to: tau off' a fish:,..
Water Quality Results
Plant Substance
(units) Year Mtl
Sampled MCLG Highest Single Compliance lyrpical Source
Measrnment Achieved
Silver Spring Turbidity (NTU) ` 2007 TT NA 0.21 YES Soil runoff
West Shore Regional Turbidity (NTU)' 2007 TT NA 0.08 YES Soil runoff
` All turbidity readings were below the treatment technique requirement of 0.3 NTU in 95% of all samples taken for compliance on a monthly basis.
Substance (atolls) Sampled MQ MfIG Atranr~it Detected lour-High fompH~ce typical Source
Barium (ppm) 2005 2 2 0.037 0.037 YES Discharge of drilling w~tes; Discharge from metal
refineries; Erosion of natural deposits
Nitrate (ppm) 2007 10 10 5.61 2.75 - 5.61 YE5 Runoff from fertilizer use; leaching from septic tanks,
sewage; Erosion of natural deposits
Fluoride (ppm) 2007 2 2 1.36 0.60 -1.36 YES Atlded to water to promote healthy teeth
Substance (utots) Year
Sampled MCL MCl6 barest
Amoattt Detected Range
low~ligh Compliance
Achieved ~Pical Source
Chlorine (ppm) 2007 4 4 0.49 0.49 - 2.60 YES Water additive used to control microbes
r ~.
Plant Substance Year ~ Range of Percent Range of Percent CompNance ~p~~ Saarce
(units) Sa mpled Removal Required Removel A chieved Achieved
West Shore Total Organic Carbo* 2007 Meet EPA removal 0 -15 30 - 45 YES Naturally decaying
Regional (TOC) (% removal) requirements vegetation
'Adequate removal of TOC may be necessary to control the unwanted formation of chlorinated by-products. Naturally occurring organic matter present in the source water can react with the
disinfectants used at the treatment factliry to form these by-products.
r
Substance (units) Sampled NICL MCl6 PerceMaglbchd Ach~ietredte l~rpical Source
Total Conforms 2007 No more than 5% of the monthly Zero bacteria 0 YE5 Naturally present in
(% of positive samples) samples can be positive the environment
Substance Year Action MCLG Number 90th Numbe- of Samples fompli~ce ~pk~ Source
(units) Samphtd level of Samples PerceMRe A bove Action level Achieved
lead (ppb) 2007 15 0 30 3 0 YES Corrosion of household plumbing systems;
Erosion of natural deposits
Copper (ppm) 2007 1.3 1.3 30 0.46 0 YES Corrosion of household plumbing systems; Erosion
of natural deposits; leaching from wood preservatives
r
Substance (units) Year
Sampled Ma MCl6/ ResaNs
MRDL Range
lovr-High Compliance Typical Source
Achieved
Total Trihalomethanes (ppb)' 2007 80 NA 47 27 - 99 YES Byproduct of drinking water chlorination
Haloacetic Acids (HAAS) (ppb)' 2007 60 NA 20 12 - 36 YES Byproduct of drinking water chlorination
Total Chlorine Residual (ppm)' 2007 NA 4 2.00 1.46 - 2.00 YES Added as a disinfectant to the treatment process
` Range represents sampling at individual sample points.
' MRDL (maximum residual disin~ctant level) applies.
jl ~ /~
..
Water Quality Statement
We are pleased to report that during the past year, the water delivered to your home or business complied with all state and
federal drinking water requirements. For your information, we have compiled a list in the table below showing what
substances were detected in your drinking water during 2009. The Pennsylvania DEP allows us to monitor for some
contaminants less than once per year because the concentration of the contaminants does not change frequently. Some of
our data, though representative, is more than one year old. Although all of the substances listed below are under the
Maximum Contaminant Levels (MCL) set by U.S. Environmental Protection Agency and the Pennsylvania DEP, we feel it is
important that you know exactly what was detected and how much of each substance was present in the water.
Water Quality Results
~~
A,.t sis~a (tiill~) Ifar ~1M A~dliewd S"a'c~
Silver Spring Turbidity (NTU)' 2009 Ti NA 0.09 Yes Soil runoff
West Share Regional Turbidity (NiU)' 2009 Tf NA 0.09 Yes Soil runoff
' All turbidity readings were below the treatment technique requirement of 0.3 NTU in 95% of all samples taken for compliance on a monthly basis.
~
•
i ~
~~~ ~~ l.~ ~ ~ ~ ~
Discharge of drilling wastes; Discharge from metal refineries;
Barium (ppm) 2008 2 2 0.04 SS y~
Erosion of natural deposits
Runoff from fertlzer use; Leaching from septic tanks, sewage;
Nitrate (ppm) 2009 10 10 5.13 2.26 - 5.13 Yes
Erosion of natural deposits
Fluoride (ppm) 2009 2 2 1.73 0.52 - 1.73 Yes Erosion of natural deposits; Water additive which promotes
strong teeth; Discharge from fertilizer and aluminum factories
Atrazine (ppb) 2009 3 3 0.1 ND - 0.1 Yes Runoff from herbicide used on row crops
2,4-D (ppb) 2009 70 70 0.3 ND - 0.3 Yes Runoff from herbicide used on row crops
MRDLa lhlcal Saaeer
1 ~ A
Chlorine (ppm) 2009 4 4 0,69 0.69 - 2.58 Yes Water additive us ed to control microbes
r ~~
PIa~ SeYstaMee ~uMts) Ss lpk+ll' ~ II~aW i RI1NNw~11,t A~M~M ~ 5~e
Silver Spring Total Organic Carbo# 2009 Meet EPA Removal 15 - 25 25 - 63 Yes Naturally decaying vegetation
(TOC) (% removal) Requirements
West Shore Regional Total Organic Carbo* 2009 Meet EPA Removal 15 - 25 27 - 40 Yes Naturally decaying vegetation
(TOC) (% removal) Requirements
* Adequate removal of TOC may be necessary to control the unwanted formation of chlorinated fiyproducts. Naturally occurring organic matter present in the
source water can react with the disinfectants used at the Vestment facility to form these byrwoducts.
•~ r ~ ~
$f (~) ~8 AcYwr1 ~ ~~
Total Coliforms 2009 No more than 5.0% of the Zero bacteria 2.2 Yes Naturally present in the ernrironment
(% of positive samples) monthly samples can be positive
(~) $slplMd ilf!L8 ~ ~ ~wr ActlM lsMi Af~iiell~A ~ 8w-+ee
Lead (ppb) 2007 15 0 30 3 0 y~ Corrosion of household plumbing systems;
Erosion of natural deposits
Copper (ppm) 2007 1.3 1.3 30 0.46 0 y~ Corrosion of household plumbing systems; Erosion of
natural deposits; Leaching from wood preservatives
Std ~rtaF{s) 1~tIt,B Lwr'-1lf~ Adriswtl 1~id1 Swree
Total Trihalomethanes (ppb)' 2009 80 NA 5i3 35 - 92 Yes Byproduct of drinking water chlorination
Haloacetic Acids (HAAS)' (ppb) 2009 60 NA 2fi 10 - 51 Yes Byproduct of drinking water disinfection
Total Chlorine Residual (ppm)' 2009 4 4 2.13 1.56 - 2.13 Yes Water additive used to control microbes
Range represents sampling at individual sample points.
' MRDL (maximum residual disinfectant level) applies.
s
-'
>,~,
~. „ , ;; ,Y
2010 ~'~'. °$ ~ -~1: u
.,y :-,~
Cv~~. - ,~,,~ ~ , ,,. ~
Susan K. Pickford Esq.
Attorney ID # 43093
attnysusankpickford@msn.com
2612 Chestnut Street
Camp Hill, PA 17011
(717) 731-5698
NANCY COX,
PAUL GARRETT,
Plaintiffs
V
PENNSYLVANIA AMERICAN
WATER COMPANY
Defendant
:IN THE COURT OF COMMON PLEAS
:CUMBERLAND COUNTY, PENNSYLVANIA
~a - l%s8y ~cr,~
:Docket No: CV
EMERGENCY MOTION FOR SPECIAL INJUNCTION
AND PRELIMINARY INJUNCTION
Plaintiffs, by the through their counsel, Susan K. Pickford, Esq. respectfully
move this Court for a Special Injunction and a Preliminary Injunction pursuant to Rule 1531 of
the Pennsylvania Rules of Civil Procedure. In support of its Motion, Plaintiff states as follows:
1. Injunctive relief is proper where the parties seeking such relief can demonstrate that (1)
the injunction is necessary to prevent immediate and irreparable harm that cannot be adequately
O
compensated by damages; 2) that greater injury would result from refusing an injunction than
from granting it, and, concomitantly, that issuance of an injunction will not substantially harm
other interested parties in the proceedings; 3) that a preliminary injunction will properly restore
or maintain the status quo as it existed immediately prior to the alleged wrongful conduct; 4) that
the activity it seeks to restrain is actionable, that the right to relief is clear, and that Plaintiff is
likely to prevail on the merits; 5) that the injunction it seeks is reasonably suited to abate the
offending activity; and, 6) that a preliminary injunction will not adversely affect the public
interest. Summit Towne Centre, Inc. y. Shoe Show of Rockv Mount Inc , 828 A.2d 995, 1000
(Pa. 2003 ).
2. Contemporaneously herewith Plaintiffs have filed a Complaint with the Court,
the full contents of which are incorporated herein and made a part hereof by reference.
3. As described more fully in the Complaint, Defendant Pennsylvania American
Water Company (hereinafter "PAWL"), intends to introduce ammonia into the West Shore
Regional and Silver Springs Water Treatment Plants on Monday, July 12, 2012 unless a Special
Injunction enjoins them from initiating such an act. Ammonia and chlorine combine to make
monochloramine, asecondary disinfection compound. While chloramine is currently approved
by the US Environmental Protection Agency, when used as intended, chloramine creates a
number of unintended but known consequences including but not limited to: highly toxic
byproducts which respected scientific opinion states are more highly genotoxic and cytotoxic
than currently regulated byproducts; creation of nitrates harmful to infants and toddlers; risk
factors for individuals on dialysis; aquatic life fatality in aquariums, ponds, streams and creeks.
4. As further described in the Complaint ,unless enjoined, PAWC's intended action
will unnecessarily create a nuisance in fact by exposing Plaintiffs and all customers within
PAWC's West Shore service area, to a continuous, substantial and unreasonable threat to their
short and long term health as well as threatening the aquatic life both domestic and wild used,
enjoyed and maintained by Plaintiffs and all customers within PAWC's West Shore service area.
5. Immediate and irreparable injury will be sustained before notice can be given
and/or a hearing held. PAWC intends to begin chloramination on Monday, July 12, 2010.
b. Preliminary injunctive relief will maintain the status quo as Defendant has not yet
implemented the chloramine system.
7. Greater injury will result if preliminary injunctive relief is denied than if
injunctive relief is granted. Plaintiffs and all customers in the West Shore service area of PAWC
and aquatic life will immediately be exposed to the unintended consequences of chloramine upon
initiation of the chloramination system. If the injunction is granted, Defendant will suffer no
harm financial or otherwise as they would simply continue operating as they have for decades,
on a chlorine system that is well within health compliance standards.
8. Plaintiff has no adequate remedy at law. The damage to health and environment
will be immediate, continuous and inescapable without requiring Plaintiffs to move out of a 12
municipality area.
9. Injunctive relief is reasonably suited to prevent or abate the offending activity
because it prevent Defendant from introducing ammonia into the water.
10. There will be no adverse effect on the public interest if the injunction is granted
because the water supplied by Defendant is currently meeting all health standards set by DEP
and EPA.
11. Plaintiffs are prepazed to post a bond, which, under the circumstances, Plaintiffs
respectfully request be set at a nominal amount. Defendant is a national corporation with
resources far beyond those of Plaintiffs. There are no foreseeable damages attributable to
Defendant continuing with current operating procedures. In fact, Defendant voluntarily delayed
implementation of chloramine for the past three years and continued to operate without harm.
Plaintiffs are of meager means. A high bond would be both unnecessary and inequitable under
the circumstances.
WHEREFORE Plaintiff respectfully prays that this Court ORDER and DECREE
(1) That Defendant be restrained from placing chloramine or ammonia into the public
water system known as the Mechanicsburg System consisting of the West Shore Regional
Treatment Plant and the Silver Springs Treatment Plant
(2) That the Court set a hearing within ten (10) days to consider whether a
preliminary injunction should be granted.
(3) That the Court set a nominal Bond.
Respectfully submitted,
Attorney for Plaintiffs
State ID # 43093
2612 Chestnut Street
Camp Hill, PA 17011
(717)731-5698
NANCY COX and IN THE COURT OF COMMON PLEAS OF
PAUL GARRETT, :CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFFS
V.
PENNSYLVANIA AMERICAN WATER
COMPANY,
DEFENDANT 10-4504 CIVIL TERM
ORDER OF COURT
AND NOW, this `~ day of July, 2010, upon consideration of
plaintiffs' emergency motion for special and preliminary injunctive relief, the court finds
that plaintiffs have failed to demonstrate the necessity of such injunctive relief in
general, and have specifically failed to demonstrate the likelihood of any immediate and
irreparable harm. Therefore, the motion IS DENIED.
By the Court,
/Susan K. Pickford, Esquire
For Plaintiffs
./Seth A. Mendelsohn, Esquire
For Defendant
sal
~~IfS
7 4~/c~
~,~L
Albert H. Masland, J.
c-~,
-
_.~
- ~; .
_z
~.._
l_: J
~.
t i C:.::
- Gt
~~~
NANCY COX and IN THE COURT OF COMMON PLEAS OF
PAUL GARRETT, :CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFFS
V.
PENNSYLVANIA AMERICAN WATER
COMPANY,
DEFENDANT 10-4504 CIVIL TERM
MEMORANDUM OPINION AND ORDER OF COURT
Before Masland, J., July 9, 2010:--
Now before the court is an emergency motion for special and preliminary
injunctive relief filed by plaintiffs, Nancy Cox and Paul Garrett, against defendant,
Pennsylvania American Water Company (Water Company). Plaintiffs seek to
prevent the Water Company from implementing a new water treatment regime,
scheduled to begin July 12, 2010. Specifically, plaintiffs contend the Water
Company's planned use of chloramine as a disinfectant will expose them to toxic
chemicals and endanger the environment. In support of these cantentions,
plaintiffs have attached the affidavit of Dr. Michael J. Plewa recommending
caution when considering implementation of chloramine for water treatment. For
the following reasons, plaintiffs' motion is denied.
At the outset, the court notes the controlling opinion of our Commonwealth
Court in, Pickford v. Department of Environmental Protection, 96'7 A.2d 414 (Pa.
Cmwlth. 2008), appeal denied, Pa. , 982 A.2d 67 (2009).' There,
~ Plaintiffs failed to cite this case in their petition. This omission is unfortunate as
plaintiffs' attorney in this matter was the named plaintiff.
10-4504 CIVIL TERM
Pickford challenged the Department of Environmental Protection's (DEP) grant of
construction and operation permits for the same chloramine disinfectant regime
at issue here. Our Commonwealth Court affirmed the Environmental Hearing
Board's (EHB) dismissal of Pickford's objections as untimely. Id. at 419. The
Court concluded that, pursuant to regulation, a party aggrieved by DEP action
has 30 days after notice of the action is published in the Pennsylvania Bulletin to
appeal. Id.; 25 Pa. Code §1021.52(a)(2)(i). Accordingly, Pickford's 2007 appeals
of permits issued and published in 2004, 2005, and 2006 were untimely and
properly dismissed. Pickford, 982 A.2d at 417-19. The Court disposed of
Pickford's other arguments as impermissible collateral attacks on a final
construction permit. Id. at 419-20. Pickford's subsequent appeal to our Supreme
Court was denied.
Now come plaintiffs, represented by Attorney Pickford, seeking to enjoin
the Water Company from initiating the chloramine disinfectant regime approved
by the DEP and EHB, and affirmed by the Commonwealth Court in the previously
described litigation. In light of the Pickford decision, plaintiffs' motion clearly
amounts to an impermissible collateral attack on DEP permitting decisions. See,
Potratz v. Dept. of Environmental Protection, 897 A.2d 16, 21-22 (Pa. Cmwlth.
2006), appeal denied, 592 Pa. 769, 923 A.2d 1175 (2007) (finding an individual's
failure to challenge construction permit waived his objection to fluoridation
medium). As such, it lacks merit.
-2-
10-4504 CIVIL TERM
Plaintiffs' motion was filed Thursday July 8, 2010 seeking to enjoin the
initiation of the Water Company's chloramine regime, scheduled for Monday July
12, 2010.2 The good faith of this eleventh hour filing is questionable. This is
especially so in light of Attorney Pickford's failure to cite to the adverse
Commonwealth Court case in which she was the named plaintiff and which fully
litigated the Water Company's use of chloramine.
Finally, Dr. Plewa's affidavit does not persuade the court that an injunction
is necessary. Dr. Plewa does not state that chloramine use is unsafe or
dangerous. Instead, he "recommend[s] caution when considering converting
from chlorine to chloramines disinfection methods by a water utility." Affidavit of
Dr. Michael J. Plewa at ¶4. Here, the court has little difficulty determining that the
DEP permitting process exemplifies the cautious consideration Ur. Plewa
recommends. Further, by plaintiffs' own admission, the Water Company
voluntarily delayed chloramine implementation for three years to address public
concern over the issue. Pls.' Compl. at ¶¶ 12-14. Such forbearance clearly
satisfies any concerns that the Water Company is hastily implementing a
potentially dangerous water treatment regime.
In light of these circumstances and the near certitude that plaintiffs'
complaint will ultimately fail, the court denies plaintiffs' motion for a preliminary
injunction without a hearing. Accordingly, the following order will issue:
Z Plaintiffs filed their complaint contemporaneously with the motion. Defendant
has filed preliminary objections which will be resolved in due course.
-3-
10-4504 CIVIL TERM
ORDER OF COURT
,.~
v„
AND NOW, this __ ~ day of July, 2010, upon consideration of
plaintiffs' emergency motion for special and preliminary injunctive relief, the court finds
that plaintiffs have failed to demonstrate the necessity of such injunctive relief in
general, and have specifically failed to demonstrate the likelihood of any immediate and
irreparable harm. Therefore, the motion IS DENIED.
By the Court,
y 't
,~
~~
Albert H. Masland, J.
Susan K. Pickford, Esquire
For Plaintiffs
Seth A. Mendelsohn, Esquire
For Defendant
sal
-4-
Seth A. Mendelsohn, Esquire
PA Supreme Court No. 77063
Pennsylvania American Water Company
800 West Hershey Park Drive
Hershey, Pa 17033
Tel: (717) 531-3362
Fax: (717) 531-3252
NANCY COX
PAUL GARRETT
Plaintiffs,
v.
PENNSYLVANIA AMERICAN WATER
COMPANY
~1 L~
~:.: ~` ~ ~`~"~l
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
NO. 10-4504 Civil
Defendant.
DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFFS COMPLAINT
AND now comes Pennsylvania American Water Company ("PAW'C" or "Defendant"),
by and through its undersigned attorneys, and files pursuant to the Pennsylvania Rules of Civil
Procedure Nos. 1028(a)(1) and (4) its preliminary objections to Plaintiffs' Complaint, and
requests that this Court dismiss the Complaint for the following reasons:
1. The Court lacks subject matter jurisdiction over the matter.
2. The Complaint is legally insufficient.
WHEREFORE, Defendant PAWL respectfully requests that the Court dismiss the
Complaint.
Respectfully submitted,
~~c.~ A.
Seth A. Mendelsohn, Esquire
PA Supreme Court No. 77063
Pennsylvania American Water Company
800 West Hershey Park Drive
Hershey, PA 17033
Tel: (717) 531-3362
Fax: (717) 531-3252
Michael D. Klein, Esquire
PA Supreme Court No. 23854
Dewey & LeBoeuf LLP
1101 New York Avenue NW
Washington, DC 20005-4213
Tel: (202) 346-8154
Fax: (202) 346-8102
Attorneys for Defendants
VERIFICATION
l~ ~ ~~%~+~ ~t ~~~~ ~i ~/ ,hereby state that I am the
I~ict - nrt s id~,nt of Pennsylvania American Water Company, the Defendant
in this proceeding and the averments and denials of fact above set forth are true and correct to the
best of my knowledge, information and belief. I understand that the statements herein are made
subject to the penalties of 18 Pa. C.S. § 4904 (relating to unsworn falsification to aut oritie ).
DATED: ~ q - jd
(Signature
22
Certificate of Service
I hereby certify that I have this day served a true and correct copy of the
foregoing document(s) which was filed on behalf of Pennsylvania American
Water Company, as the Defendant, upon the following persons and in the
manner indicated below:
SERVICE VIA REGULAR MAIL POSTAGE PRE-PAID:
Susan K. Pickford, Esq.
2612 Chestnut Street
Camp Hill, PA 17011
Tel: (717) 731-5698
Attorney for Plaintiffs
Dated: July 9, 2010 ~A,
Seth A. Mendelsohn, Esquire
PA Supreme Court No. 77063
Pennsylvania American Water Company
800 West Hershey Park Drive
Hershey, PA 17033
Tel: (717) 531-3362
Fax: (717) 531-3252
Attorney for Defendant
Seth A. Mendelsohn, Esquire
PA Supreme Court No. 77063
Pennsylvania American Water Company
800 West Hershey Park Drive
Hershey, Pa 17033
Tel: (717) 531-3362
Fax: (717) 531-3252
~~ ~ -
,= T ; :*`~
~~,~ JUL -9 AM1l~ 35
,.
.~ ._
NANCY COX
PAUL GARRETT
Plaintiffs,
v.
PENNSYLVANIA AMERICAN WATER
COMPANY
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
NO. 10-4504 Civil
Defendant.
DEFENDANT'S OBJECTIONS TO EMERGENCY MOTION
AND now comes Pennsylvania American Water Company ("PAWC" or "Defendant"),
by and through its undersigned attorneys, and files its objections to Plaintiffs' Emergency
Motion for Special Injunction and Preliminary Injunction ("Emergency Motion"), and requests
that this Court deny the Emergency Motion for the following reasons:
STATEMENT OF THE CASE
1. Between 2003 and 2006, PAWC applied for, and received, the requisite permits
from the Pennsylvania Department of Environmental Protection ("DEP") to use chloramines as a
drinking water disinfectant at PAWC's Silver Spring Water Treatment Plant ("SSWTP") and
West Shore Regional Water Treatment Plant ("WSRWTP"). This proceeding is the third attempt
by counsel for Plaintiffs Susan K. Pickford and Plaintiff Nancy Cox to forestall PAWC's
planned transition to chloramination.
Proceeding Before the Pennsylvania Department of Environmental Protection
2. Notice of PAWC's application for a Public Water Supply Permit to begin
construction of an aqua ammonia feed system and two chemical unloading; systems at the
SSWTP was published in the November 20, 2004 Pennsylvania Bulletin, 3~4 Pa. B. 6253. DEP
approved the application and notice of its approval was published in the March 5, 2005
Pennsylvania Bulletin, 35 Pa. B. 1621. DEP granted a Public Water Supply Permit to operate the
new facilities and published notice in the April 15, 2006 Pennsylvania Bulletin, 36 Pa. B. 1786.
Notice of PAWC's application for a Public Water Supply Permit application to
begin construction of chloramination facilities at the WSRWTP was published in the July 19,
2003 Pennsylvania Bulletin, 33 Pa. B. 3519. DEP approved the application and notice of the
approval was published in the April 17, 2004 Pennsylvania Bulletin, 34 Pa. B. 2125. DEP
granted a Public Water Supply Permit to operate the new facilities and published notice in the
April 15, 2006 Pennsylvania Bulletin, 36 Pa. B. 1786.
4. On November 30, 2007, Susan K. Pickford, who also is a customer of PAWL,
filed an appeal to the Environmental Hearing Board ("EHB") seeking review of the DEP-issued
permits described above and asserting a denial of due process because the notices did not
reasonably inform interested parties of the change to chloramines. Pickford v. Dept of Envtl.
Prot., 967 A.2d 414, 417 (Pa. Cmwlth. 2008). The EHB granted PAWC's motion, in which DEP
joined, to dismiss Pickford's appeal on the grounds that it was untimely filed. Id. The EHB
further determined that the notices were not misleading or incomplete and that it lacked
jurisdiction to hear Pickford's appeal of a DEP letter that was in response to a complaint that
Pickford filed on DEP's website. Id.
2
Ms. Pickford then appealed to the Commonwealth Court of Pennsylvania. The
Commonwealth Court affirmed the EHB order, concluding that Ms. Pickford's appeal to the
EHB was untimely and that PAWC's notices were adequate. Id. at 419 (Pa. Cmwlth. 2008). Ms.
Pickford subsequently filed a Petition for Allowance of Appeal, which the Supreme Court of
Pennsylvania denied on July 30, 2009. Pickford v. Dept of Envtl. Prot.,1\fo. 184 MAL 2009.
Proceeding before the Public Utility Commission
6. Between August 2007 and May 2008, the Pennsylvania Public Utility
Commission ("PUC") received twenty-four formal complaints from customers of PAWC,
including Susan K. Pickford and Nancy Cox, who objected to PAWC's proposal to convert the
SSWTP and the WSRWTP from chlorinated water to chloraminated water. Pickford v. Public
Utility Comm., No. 1157 C.D. 2009 at 3 (Pa. Cmwlth. 2010) NOTE, this is an unreported
opinion. The complaints each alleged adverse health effects from chloraminated water and
requested that the PUC prevent PAWL from proceeding with the planned transition to
chloramines until the health issues were studied and resolved. Id.
7. On appeal of a ruling in limine by the Administrative Law Judge ("ALJ") that no
evidence relating to the public health determinations made in the context o:F DEP's permitting
decisions would be allowed, the PUC held that the DEP has primary jurisdiction with regard to
the public health issues related to the use of chloramines. Id. at 5-6. The PUC further explained
that it "will not second-guess the DEP's permitting decisions or its public health determinations
regarding the use of chloramines" or be used to "collaterally attack the decisions of the DEP or
standards related to disinfectants properly within its authority under the federal and state
drinking water law." Id. at 6.
3
A public hearing was held on October 22, 2008. Id. at 7. Following the hearing
the ALJ found that the complainants had failed to present evidence that chloraminated water
would be unsuitable for household use or that PAWC abused its managerial discretion in
deciding to switch to chloramination. The PUC adopted the ALJ's decision and dismissed the
complaints in their entirety. Id.
9. The complainants before the PUC then appealed to the Commonwealth Court of
Pennsylvania. The Commonwealth Court affirmed the PUC order, finding that the issue of water
purity, including the use of treatment chemicals, "is under the exclusive jurisdiction of the DEP."
Id. at 12.
SUMMARY OF ARGUMENT
10. Despite Plaintiffs' attempt to formulate their complaint as a nuisance claim,
Plaintiffs are trying, yet again, to challenge the permits issued by the DEP for the SSWTP and
WSRWTP and the drinking water standards adopted by the DEP for water disinfectant
chemicals, including chloramines. Plaintiffs have not alleged that PAWC leas or will violate the
terms of its DEP-issued permits or applicable drinking water standards. Instead, Plaintiffs'
allege that even though PAWL will comply with all applicable DEP requirements the transition
to chloramines "will...create a nuisance in fact by exposing Plaintiffs to a continuous, substantial
and unreasonable threat to their short and long term health as well as threatening...aquatic life
both domestic and wild." Plaintiffs' Emergency Motion at ¶ 4. Plaintiffs are in the wrong forum
to challenge these DEP determinations. Any challenge to permits issued, or regulations adopted,
by DEP must be brought in the EHB, 35 P.S. § 7514, and from there in the Commonwealth
Court of Pennsylvania. 42 Pa. C.S. § 763(a)(1), and finally from there in th.e Supreme Court of
4
Pennsylvania, 42 Pa. C.S. § 723. This court, quite simply, lacks jurisdiction to hear Plaintiffs'
complaint.
11. Moreover, even if this court has jurisdiction, Plaintiffs have not established that
they are entitled to the requested relief. As an initial matter, as acknowledged by Plaintiffs,
PAWL announced on December 1, 2009 that it would implement the use of chloramines on July
12, 2010. Plaintiffs' Complaint at ¶ 12. Despite that fact that Plaintiffs have known, or should
have known, for over six months about PAWC's intent to transition to chloramines on July 12,
2010, Plaintiffs' did not filed their Emergency Motion until July 8, 2010, a mere one business
day before the planned switch. Thus, any alleged emergency was created by Plaintiffs and does
not justify emergency relief.
12. In addition, Plaintiffs have not shown "that greater injury would result from
refusing an injunction than from granting it, and, concomitantly, that issuance of an injunction
will not substantially harm other interested parties," "that the activity it seeks to restrain is
actionable, that the right to relief is clear, and that Plaintiff is likely to prevail on the merits," or
"that a preliminarily injunction will not adversely affect the public interest." See Plaintiffs'
Emergency Motion at ¶ 1. With respect to injury to the Plaintiffs, as noted above, Plaintiffs do
not claim that, after the switch to chloramines, PAWL will fail to comply with any applicable
DEP requirements. In fact, Plaintiffs specifically acknowledge the chloramines are approved by
the U.S. Environmental Protection Agency ("EPA") for use in drinking water systems for the
purpose of disinfecting water and maintaining a residual disinfectant in distribution lines.
Plaintiffs' Complaint at ¶ 17. Thus, after the switch to chloramines Plaintiffs will receive
drinking water that meets all applicable drinking water standards. As determined by DEP and
EPA, Plaintiffs will not be harmed by such water. In fact, as noted in Plaintiffs' Exhibit A,
5
people in cities in Pennsylvania and across the United States have received chloraminated water
for decades.
13. Conversely, PAWC has purchased special reagents purchased for the analysis of
the chloramine species in the lab. These may exceed their shelf life, in which case PAWL would
need to dispose of the expired chemicals and additional "fresh" reagents would need to be
ordered. Plant operators recently have been trained to run the lab analyses and to maintain the
proper chlorine to ammonia ratios to generate monochloramine. Considerable time has been
spent this past week on training and delays would cause PAWC's operatians management team
to have to retrain operators in lab analysis techniques and process control. Representatives at the
call center have been trained this week on the basics of chloramination and have been given a
Q&A document for passing information on to customers. Additional training would be needed if
a lengthy delay occurred. PAWL conducted personal calls to all critical customers within the
last two weeks, alerting them that we intended to begin chloramination during the week of July
12th. PAWL would need to notify these customers that the new treatment did not start as
planned if a delay were to occur. Customers, in general, also would need to be informed that
chloramination would not begin as PAWC has stated (during the week of July 12th). Any delay
by the Court would severely degrade the confidence of the public in the other Pennsylvania
systems that currently chloraminate.. The time, effort and expense already incurred by PAWL
would be lost if an injunction is granted as each of these actions would need to be retaken prior
to any future switch to chloramination.
14. Finally, as noted in Plaintiffs' Exhibit A, the switch to chloramines "will enable
PAWC to meet future drinking water standards and to reduce the taste and odor of chlorine
6
in...drinking water." PAWC's customers will be denied these benefits during the term of any
special or preliminary injunction.
OBJECTIONS
I. The Court Lacks Jurisdiction
15. Notwithstanding Plaintiffs' claim that this Court has jurisdiction per 42 Pa. C.S.
§ 931, Plaintiffs' attempt to shoehorn the Court's jurisdiction over their Complaint by styling it
as a public nuisance action is disingenuous.
16. As is evident from the long history of litigation recounted above, the true aim of
Plaintiffs complaint is: (1) to collaterally challenge the process by which drinking water
standards are established; (2) to re-litigate their failed challenge to the permits issued by DEP to
Defendant allowing its use of chloramines as a disinfectant; and (3) to re-litigate their failed
challenge before the PUC regarding quality of service provided by Defendant.
7
Establishment of Drinking Water Standards
17. The Federal Safe Drinking Water Act was enacted in 1974 and gave the EPA the
authority to establish national drinking water standards to be enforced by the states. 42 U.S.C.
§ 300g-1(b) (p. 1-15). The national drinking water standards take the form of the National
Primary Drinking Water Regulations, which are based on sound science to protect against public
health risks, considering available technology and costs. 42 U.S.C. § 300f~(1).~ The National
Primary Drinking Water Regulations are legally enforceable standards that apply to all public
water systems. Primary standards protect drinking water quality by limiting the levels of specific
contaminants that can adversely affect public health and are known or anticipated to occur in
water. 42 U.S.C. § 300f (1). They take the form of Maximum Containment Levels ("MCL"),
Treatment Techniques ("TT")Z or Maximum Residual Disinfectant Levels ("MRDL").
18. There is an elaborate and open process for EPA to follow in establishing MCLs
and TTs for contaminants and MRDLs for residual disinfectants. Exhaustive evaluation,
including public participation, is performed over a span of years to examine the health effects of
the contaminant or residual disinfectant. This involves hazardous identification and dose-
response assessment, the size and nature of the population exposed to the substance, and the
length of time and concentration of the exposure.3
19. Chloramine is a residual disinfectant for which EPA has established a maximum
residual disinfectant level goal ("MRDLG") and a MRDL. The MRDLG and the MRDL for
~ U.S. Environmental Protection Agency, Office of Water, Understanding the Safe Drinking Water Act (June 2004),
http://www.epa.gov/safewater/sdwa/30th/factsheets/pdfs/fs_30ann sdwa web.pdf.
U.S. Environmental Protection Agency, Drinking Water Academy, From Risk to Rule: flow EPA Develops Risk-
Based Drinking Water Regulations (March 3, 2003) 1-19,
http: //www. epa. gov/safewater/dwa/electronic/presentations/npdwr/risk. pdf.
3Id. at 1-23.
8
chloramine are the same, i.e., 4 milligrams per liter (mg/L) (4 parts per million (ppm)).4 Once
EPA selects a residual disinfectant, such as chloramine for regulation, it examines the
disinfectant's health effects and sets a MRDLG. This is the maximum level of a residual
disinfectant in drinking water at which no known or anticipated adverse health effects would
occur, and which allows an adequate margin of safety.5 A MRDLG is an unenforceable health
goa1.6 However, EPA has set the enforceable MRDL for chloramine at the same conservative
level as the MRDLG, this means that EPA has determined that at 4 parts per million, chloramine
as a residual disinfectant in drinking water has no known or anticipated adverse health effects.
EPA on its official website states: "Drinking water chloramine levels that meet the EPA
standard are associated with minimal to no risk and should be considered safe."~
20. Under the Federal Safe Drinking Water Act, the most direct oversight of water
systems is conducted by state drinking water programs. States can apply to EPA for "primacy,"
the authority to implement the Federal Safe Drinking Water Act within their jurisdictions, if they
can show that they will adopt standards at least as stringent as EPA's and make sure water
systems meet these standards. 42 U.S. § 3008-2(a)(i)-(6); 40 C.F.R. § 142..10 (2007).8
21. In 1984, Pennsylvania achieved primacy by enacting the Pennsylvania Safe
Drinking Water Act, 35 P.S. §§ 721.1 et seq. The legislative intent expressed in Section
721.2(b)(1) is as follows:
a U.S. Environmental Protection Agency, Office of Water, Information about chloramine in Drinking Water,
http://www.epa.gov/safewater/disinfection/chloramine/index.html#eight (last updated Friday, June 29, 2007).
s Supra note 2 at 1-22.
~ Id. at 1-20.
'Supra note 4 at http://www.epa.gov/safewater/disinfection/chloramine/index.html#fifteen.
~ Supra note 2.
9
Establishing a State program to assure the provision of safe drinking water to the public
by establishing drinking water standards and developing a State program to implement
and enforce the standards.
22. Pursuant to the Pennsylvania Safe Drinking Water Act, the Pennsylvania
Environmental Quality Board ("EQB") has the power and duty to adopt such rules and
regulations of DEP, governing the provisions of the Pennsylvania Safe Drinking Water Act. 35
P.S. § 721.4. As for the establishment of drinking water standards, the EQB is governed by the
following.
The [EQB] shall adopt maximum contaminant levels and treatment technique
requirements no less stringent than those promulgated under the Federal Act for
all contaminants regulated under the national primary and secondary drinking
water regulations. The board may adopt maximum contaminant levels or
treatment technique requirements for any contaminant that a maximum
contaminant level or treatment technique requirement has not been promulgated
under the national primary and secondary drinking water regulations. 35 P.S.
§ 721.4 (a).
The EQB utilizes a thorough and open process in promulgating rules and adopting maximum
contaminant levels, treatment techniques, and residual disinfectant levels to ensure that the
public receives safe drinking water.
23. Pursuant to the Pennsylvania Safe Drinking Water Act, DEI' is required to adopt
and implement a public water supply program which shall include maximum contaminant levels
establishing drinking water quality standards. 35 P.S. § 721.5(a). While the EQB establishes
maximum contaminant levels on a statewide basis, DEP has the authority to establish them on a
case-by-case basis for a public water system in which unregulated contaminants create a health
risk to users of that system. 25 Pa. Code § 109. 203.
10
24. The EQB has adopted the health based maximum residual disinfectant level goal
and maximum residual disinfectant level set by the EPA for chloramine, i.e., 4 parts per million,
and the DEP has implemented that standard. 25 Pa. Code § 109. 202(f). PJo state agency board,
or commission, other than the EQB, has the authority to establish a maximum residual
disinfectant level goal or maximum residual disinfectant level for chloramine or for any other
disinfectant, disinfection byproduct or contaminant.9
25. Once a maximum residual disinfectant level is established i~or a drinking water
disinfectant, such as chloramine, it has been conclusively determined by the EPA and the EQB
that water containing concentrations of the disinfectant, at or below the established levels, is safe
to drink.
Review of Drinking Water Standards and DEP Permits
26. There is an established regime for challenging drinking water standards as
adopted by the State of Pennsylvania. In the first instance, challenges to the final actions of the
DEP and the EQB must be brought in the EHB. 35 P.S. § 7514. Under 42 Pa. C.S. § 763(a)(1),
the Commonwealth Court is granted exclusive jurisdiction of appeals from final orders of
Commonwealth agencies, including appeals from the EHB. The Pennsylvania Supreme Court
has jurisdiction over appeals from the Commonwealth Court. 42 Pa. C.S. § 723.
27. As recounted above, Plaintiffs already have twice sought relief from the
Commonwealth Court, which has ruled specifically and conclusively on the Plaintiffs' challenge
to PAWC's use of chloramine as approved by the EPA and permitted by the DEP.
9 The only exception as discussed above is that DEP can establish MCLs for unregulated contaminants on a case-by-
case basis. chloramine is not an unregulated contaminant.
11
28. In light of the previous litigation, it is clear that Plaintiffs are forum shopping for
a venue where they may seek to collaterally attack DEP's permits issued to PAWC containing a
health-based drinking water standard established by the agencies with exclusive jurisdiction to
set health-based standards.
29. As a matter of policy, Plaintiffs cannot be allowed to challenge activities taken
pursuant to and in compliance with state and federal permitting actions as public nuisances in the
Courts of Common Pleas. Such challenges would serve as a collateral attack on a final decision
by an agency for which an established appeals process is already in place.
30. As a result, this Court must deny the Emergency Motion as it is founded on an
action over which this Court has no jurisdiction.
II. Plaintiffs Emergency Motion Is Barred by the Doctrines of Laches and Unclean Hands
31. The Court should deny Plaintiffs' request for emergency relief based on the
equitable doctrines of laches and unclean hands.
32. The equitable doctrine of laches bars relief when the plaintiff has failed to
promptly institute an action to the prejudice of another. Sprague v. Casey, 520 Pa. 38, 45, 550
A. 2d 184 (1988); YVilson v. King of Prussia Enterprises, Inc., 422 Pa. 128, 221 A.2d 123 (1966).
Success on an assertion of laches requires a showing that delay was caused by a failure of due
diligence and that the delay caused prejudice to the other party.
33. The doctrine of unclean hands prevents a plaintiff from seeking equitable relief
where they are tainted with bad faith. It requires that the party seeking relief "shall have acted
fairly and without fraud or deceit as to the controversy in issue." Jacobs v. Halloran, 710 A. 2d
12
1098, 1103 (Pa. 1998) (quoting Shapiro v. Shapiro, 415 Pa. 503, 506-07, :204 A.2d 266, 268
(1964)).
34. By Plaintiffs' own admission, they have been aware of the July 12, 2010
implementation date for over 6 months. Complaint at ¶ 12. Moreover, Plaintiffs have been
intensely litigating the issue of PAWC's use of chloramines for nearly three years, a material fact
that Plaintiffs deceptively omit from their Emergency Motion and Complaint.
35. It is no coincidence that Plaintiffs waited until the last possible moment to file the
present Emergency Motion and Complaint. Rather, the delay was deliberate and intentional, the
alleged urgency of Plaintiffs' situation being a result of their own bad faith.
36. The delay in filing the present Emergency Motion has resulted in extreme
prejudice to PAWC. Having announced over 6 months ago the intent to implement the switch to
chloramines next Monday, July 12, PAWL had begun the costly undertaking of preparing the
system for the conversion. Special reagents purchased for the analysis of the chloramine species
in the lab may exceed their shelf life, in which case PAWC would need to dispose of the expired
chemicals. Additional "fresh" reagents would need to be ordered. Plant operators recently have
been trained to run the lab analyses and to maintain the proper chlorine to ammonia ratios to
generate monochloramine. Considerable time has been spent this past week on training. Delays
will cause PAWC's operations management team to have to retrain operators in lab analysis
techniques and process control. Representatives at the call center have been trained this week on
the basics of chloramination and have been given a Q&A document for passing information on
to customers. Additional training would be needed if a lengthy delay occurred. PAWL
conducted personal calls to all critical customers within the last two weeks, alerting them that we
13
intended to begin chloramination during the week of July 12th. PAWC would need to notify
these customers that the new treatment did not start as planned if a delay were to occur.
Customers, in general, also would need to be informed that chloramination would not begin as
PAWL has stated (during the week of July 12th). Any delay by the Couri: would severely
degrade the confidence of the public in the other Pennsylvania systems that currently
chloraminate.
37. Not only was a prejudicial delay caused by a failure of Plaintiffs' due diligence in
brining a claim, that delay was the product of a deliberate bad faith tactic. As a result, both the
doctrines of laches and unclean hands bar the Plaintiff from the equitable relief they have
requested.
III. The Emergency Motion Fails to Meet the Legal Standard
38. In order to obtain a preliminary or special injunction, Plaintiffs must establish the
following: (1) an injunction is necessary to prevent immediate and irreparable harm that cannot
be adequately compensated by damages; (2) greater injury would result from refusing an
injunction than from granting it, and issuance of an injunction will not substantially harm other
parties in the proceedings; (3) a preliminary injunction will properly restore the status quo as it
existed immediately prior to the alleged wrongful conduct; (4) the activity it seeks to restrain is
actionable, its right to relief is clear, and it is likely to prevail on the merits; (5) the injunction it
seeks is reasonably suited to abate the offending activity; and (6) a preliminary injunction will
not adversely affect the public interest. Summit Towne Centre, Inc. v. Shoe Show, 828 A. 2d 995,
1001 (Pa. 2003). Importantly, if any one of these "essential prerequisites" i-or a preliminary
injunction is not satisfied, a court has reasonable grounds for denial. Id.
14
A. Failure to Demonstrate Immediate and Irreparable Harm
39. Plaintiffs have failed to show that an injunction is necessary to prevent immediate
and irreparable harm. Indeed, since, the EPA and DEP have concluded that at the MRDLG and
the MRDL of 4 parts per million, chloramine has no known or anticipated adverse health effects,
Plaintiffs have failed to show that they or anyone else will suffer ttny harni in the absence of an
injunction. Plaintiffs claim that they will be harmed by PAWC's transition to chlorarnines is
nothing more than another collateral attack the EPA and DEP-adopted drinking water standards
for chloramines.
B. Failure to Demonstrate Injunction Will Not Harm Defendant
40. As noted above, neither Plaintiffs nor anyone else will be harmed by PAWC's
planned transition to chloramination on July 12, 2010. In contrast, if an injunction is granted,
PAWC will lose the time, money and effort that it has invested to ensure a smooth transition. In
particular, PAWC purchased special reagents for the analysis of the chloramine species in the
lab. These may exceed their shelf life in the event of a delay, in which case PAWC would need
to dispose of the expired chemicals. Additional "fresh" reagents would need to be ordered. Plant
operators recently have been trained to run the lab analyses and to maintain the proper chlorine
to ammonia ratios to generate monochloramine. Considerable time has been spent on training
and delays will cause PAWC's operations management team to have to retrain operators in lab
analysis techniques and process control. Representatives at the call center leave been trained this
week on the basics of chloramination and have been given a Q&A document for passing
information on to customers. Additional training would be needed if a lengthy delay occurred.
PAWL conducted personal calls to all critical customers within the last two weeks, alerting them
15
that we intended to begin chloramination during the week of July 12th. 1'AWC would need to
notify these customers that the new treatment did not start as planned if a delay were to occur.
Customers, in general, also would need to be informed that chloramination would not begin as
PAWL has stated (during the week of July 12th}. Any delay by the Court would severely
degrade the confidence of the public in the other Pennsylvania systems that currently
chloraminate.
C. Failure to Demonstrate Wrongful Conduct to be Addressed by an Injunction
41. Plaintiffs cannot satisfy this "essential prerequisite" because they have not alleged
any wrongful conduct by PAWL. As discussed in more detail below, although couched in terms
of nuisance, Plaintiffs' compliant really is with the DEP's approval of chloramination as a
drinking water treatment chemical in general and for the SSWTP and WSRWTP in particular.
The DEP has issued permits authorizing PAWC to use chloramines at the SSWT and WSRWTP.
The operation of these facilities in compliance with terms of the DEP-issued permits and all
applicable drinking water standards simply is not "wrongful conduct."
D. Failure To Demonstrate an Actionable Claim, a Clear Right to Relief or Likelihood of
Success
42. The fourth "essential prerequisite" Plaintiffs must demonstrate is that the activity
they seek to restrain is actionable, that the right to relief is clear and that they are likely to
succeed on the merits. Summit Towne Centre, 828 A. 2d at 1001. Plaintiffs fail on all three
counts.
16
43. Styled as an action in public nuisance, Plaintiffs fail to aver the necessary
elements to establish an actionable claim in their Complaint. Pennsylvania courts frequently
have applied Section 821 B of the Restatement (Second) of Torts to deternline whether a public
nuisance exists. Machipongo Land and Coal Co., Inc. v. Commonwealth, 799 A. 2d 751 (Pa.
2002). That section provides that a public nuisance is "an unreasonable interference with a right
common to the general public." The section goes on to provide examples of "unreasonable
conduct," which might include "significant interference" with public health or safety or conduct
that is proscribed by a statute, ordinance or regulation.
44. Plaintiffs have not averred facts to suggest that PAWC is engaged in
"unreasonable" conduct. Nor have Plaintiffs averred that such conduct has significantly
interfered with a public right. Rather, Plaintiffs at best articulate a speculative harm.
45. Indeed, in stark contrast to what the Restatement (Second) of Torts describes as
"unreasonable," PAWC is providing water service to the public in compliance with permits
issued by the DEP and drinking water standards approved by the DEP. Significantly, the validity
of these permits already has been affirmed by the EHB, and the Commonwealth Court. The
Pennsylvania Supreme Court denied the Petition for allowance of appeal.
46. PAWL also direct the Court's attention to the Pennsylvania Safe Drinking Water
Act, 35 P.S. § 721.12, which states that any "violation of any provision of this act, any rule or
regulation of the department, any order of the department, or any term or condition of any
permit" constitutes a public nuisance. PAWL is not acting in violation of any rule or regulation
of the DEP by switching to chloramine, instead it is acting in full compliance with DEP's rules
17
and regulations and permits issued to it by DEP. Further, by Plaintiffs own admission, use of
chloramine is approved by the EPA. Complaint at ~ 17.
47. It stands to reason, therefore, that PAWC's compliance with the terms of its
permits, in accordance with DEP and EPA requirements, precludes, as a matter of law, a finding
that it is acting unreasonably. See Criswell v. Clugh, 3 Watts 330, 1834 WL 3375 (Pa. 1834)
(erection of dam permitted by law, and therefore not a nuisance). PAWC's actions, as a legal
matter, are per se reasonable.
48. With respect to the nuisance that Plaintiffs anticipate (despite the judgment of the
DEP and EPA to the contrary), Pennsylvania law requires that Plaintiffs show that it is
"practically certain" and "not merely probable." Machipongo, 799 A. 2d at 774 (citing Ranck v.
Bonal Enterprises, Inc., 467 Pa. 569, 359 A.2d 748, 752 (1976)). Plaintiffs mere speculation as
to potential harm does not meet this standard.
49. Not only have Plaintiffs failed to aver anything to suggest PAWC has acted
unreasonably, they have failed to otherwise demonstrate their right to relief or their likelihood of
success on the merits with the clarity required for issuing a preliminary injunction.
E. Failure to Demonstrate Injunction Is Reasonably Suited to Offending Action
50. As with the third "essential prerequisite," the Plaintiffs cannot satisfy this
"essential prerequisite," because the "offending action," is, in fact, PAWL operating its facilities
and the providing drinking water in compliance with all applicable laws, regulations and permits.
Since PAWC has not, and will not, do anything improper, no injunction can be reasonably suited
to its actions.
18
F. Failure to Demonstrate Injunction Will Not Harm the Public Interest
51. Contrary to Plaintiffs' claims, an injunction will harm the public interest. As
noted in Plaintiffs' Exhibit A, the switch to chloramines "will enable PAWL to meet future
drinking water standards and to reduce the taste and odor of chlorine in...drinking water."
52. In particular, PAWC's decision to make the switch from chlorine to chloramine as
the residual disinfectant was made, in part, to enable PAWL to comply with the Stage 2
Disinfectants and Disinfection Byproducts Rule established by the EPA. The Stage 2 Rule is
intended to reduce potential cancer and reproductive and developmental health risks from
disinfection byproducts in drinking water which form when disinfectants are used to control
microbial pathogens.10 In many cases, water needs to be disinfected to inactivate (or kill) these
microbial pathogens. However, disinfectants like chlorine can react with naturally-occurring
materials in the water to form byproducts such as: trihalomethanes, haloacetic acids, chlorite and
bromate. These byproducts, if consumed in excess of the EPA's standard over many years, may
lead to increased health risks. EPA has developed the Stage 2 Disinfectants and Disinfection
Byproducts Rule to protect public health by limiting exposure to these regulated disinfectant
byproducts. ~ ~
53. The above described disinfection byproducts generally form at much lower levels
when chloramine is used instead of chlorine. iz This is why PAWC decided to switch from
chlorine to chloramine in order to be in compliance with the EPA Stage 2 Rule and to better
10 U.S. Environmental Protection Agency, Office of Water, Stage 2 Disinfection byproduct Rule,
http://www.epa.gov/safewater/disinfection/stage2/basicinformation.html#one (last updated Friday, Tune 29, 2007).
" Ibid.
'Z Ibid. at http://www.epa.gov/safewater/disinfection/stage2/basicinformation.html#eight
19
protect its customers from known health risks associated with chlorine's creation of known,
regulated disinfection byproducts.
54. EPA has determined that while chloramine produces substantially lower
concentrations of the regulated disinfection byproducts than chlorine, it may increase exposure to
other disinfection byproducts, such as N-nitrosodimethylamine ("NDMA") or possibly iodinated
disinfection byproducts.13 According to the EPA, the exposure to these other disinfection
byproducts is much lower than to the two disinfection byproducts that are the subject of the EPA
Stage 2 Rule, and which chloramine significantly reduces.14
55. PAWC's customers will be denied these benefits during the term of any special or
preliminary injunction.
WHEREFORE, Defendant PAWL respectfully requests that the Court deny the relief
requested by the Plaintiffs.
Respectfully submitted,
~xi6 A'
Seth A. Mendelsohn, Esquire
PA Supreme Court No. 77063
Pennsylvania American Water Company
800 West Hershey Park Drive
Hershey, PA 17033
Tel: (717} 531-3362
Fax: (717) 531-3252
Michael D. Klein, Esquire
PA Supreme Court No. 23854
Dewey & LeBoeuf LLP
1101 New York Avenue NW
13 Supra note 9 at http://www.epa.gov/safewater/disinfection/chloramine/index.html#thirtef;n.
14 Ibid.
20
Washington, DC 20005-4213
Tel: (202) 346-8154
Fax: (202) 346-8102
Attorneys for Defendants
21
VERIFICATION
I, G~~ ~~~ ~a•M L'a 1r ~•? <r... ,hereby state that I am the
~/ie t - ~/'tsie>~h~t of Pennsylvania American Water Company, the Defendant
in this proceeding and the averments and denials of fact above set forth are true and correct to the
best of my knowledge, information and belief. I understand that the statements herein are made
subject to the penalties of 18 Pa. C.S. § 4904 (relating to unsworn falsification to authorities).
--~
DATED: 7- `~'- da
(Signature
Certificate of Service
I hereby certify that I have this day served a true and correct copy of the foregoing
document(s) which was filed on behalf of Pennsylvania American Water Company, as
the Defendant, upon the following persons and in the manner indicated below:
SERVICE VI_A REGULAR MAIL, POSTAGE PRE-PAID:
Susan K. Pickford, Esq.
2612 Chestnut Street
Camp Hill, PA 17011
Tel: (717) 731-5698
Attorney.for Plaintiffs
Dated: July 9, 2010 ~~,p
Seth A. Mendelsohn, Esquire
PA Supreme Court No. 77063
Pennsylvania American Water Company
800 West Hershey Park Drive
Hershey, PA 17033
Tel: (717) 531-3362
Fax: (717} 531-3252
Attorney for Defendant
.r
NANCY COX and IN THE COURT OF COMMON PLEAS OF
PAUL GARRETT, :CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFFS
V.
PENNSYLVANIA AMERICAN WATER
COMPANY,
DEFENDANT 10-4504 CIVIL TERM
ORDER OF COURT
AND NOW, this /'~~ day of July, 2010, the petitions to intervene
filed by the Pennsylvania Public Utility Commission and the Commonwealth of
Pennsylvania, Department of Environmental Protection ARE GRANTED.
By the Court,
Albert H. Masland, J.
/ Susan K. Pickford, Esquire
~~ N_
~a ~r'7
For Plaintiffs "', ~ ' ` -_
/Seth A. Mendelsohn, Esquire ~::,, ~" -_,
For Defendant ='
Rhonda L. Daviston, Esquire ."~ c; =_
Esquire
Wimer
Stephanie M `-' "`
,
.
For Pennsylvania Public Utility Commission
Ann R. Johnston, Esquire
For Commonwealth of Pennsylvania, Department of Environmental Protection
:sal
~ iM~c~ae~ I~~~~„~ rs~
'~pi~~ rxa led ~~141/D
~~G
~ ~ ~, .
,._ ~ _.
Susan K. Pickford, Esq.
Attorney for Plaintiffs
ID # 43093
2612 Chestnut Street
Camp Hill, PA 17011
717-731-5698
NANCY COX,
PAUL GARRETT,
Plairniffs
V
PENNSYLVANIA AMERICAN
WATER COMPANY
Defendant
2Q10 ~~,'~ 27 F~'i ~~ i u
Q~ 3: l~
'r'`!
r'c ~ .~.`;' _ .r.ir~
:IN THE COURT OF COMMON PLEAS
:CUMBERLAND COUNTY, PENNSYLVANIA
:Docket No: 10-4504
Action in Equity
PLAIlVTII~S' ANSWER
TO DEFENDANT' S
PRELIIVIINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT
NOW COME Plaimiffs, by and through their attorney, Susan K. Pickford, Esq. and files
this Answer to Defendants Preliminary Objections
DENIED. On the contrary, Defendant filed for permits to construct and operate a
new facility to replace two dilapidated buildings which provided chlorine treatment as the
method of disinfecting Plaintiffs' drinking water. While the instant action is not intended to
challenge the notice or issuance of the permits, the record should be accau~ate. Contrary to the
allegation by Defendant, the change in treatmern was not noticed to the public through the permit
notices. The permit application, the full content of which was not noticed, provided for the
ability to transition to chloramine in the future and would not have been ripe for appeal had
plaintiffs appealed the permit application.
2-5. Paragraphs 2 through 5 chronicle Defendant's version of a separate litigation
regarding PAWC's permit and notice of said permit and are irrelevant to the instant action.
Plaintiffs' complairn does not challenge PAWC's permit either to construct and operate their
facility or to operate a chloramine system. If deemed relevarn, the factual averments of these
paragraphs are denied and placed at issue. Plairniffs' complaint states an action in public
nuisance resulting from the legal operation of a company whose method of operation creates a
nuisance in fact as a resuh of necessarily intervening circumstances. Defendarn seeks to interfere
with the jurisdiction of this court by claiming collateral attack where the issues are separate and
distinct and wholly actionable under civil law.
6-9. Paragraphs 6 through 9 chronicle Defendant's version of a separate litigation
regarding service provided by PAWC under the Public Utility Code and are irrelevant to the
instant action. Plaintiffs' complaint does not challenge PAWC's compliance with the Public
Utility Code. If deemed relevarn, the fads averred in said paragraphs are denied and placed at
issue. Plairniffs' complaint states an action in public nuisance resulting from the legal operation
of a company whose method of operation creates a nuisance in fact as a result of necessarily
intervening circumstances. Defendant seeks to irnerfere with the jurisdiction of this court by
claiming collateral attack where the issues are separate and distinct and wholly actionable under
civil law.
10. DEI~TIED. While Defendant may wish to posit Plairniffs complaint as a
collateral attack on a permit issued by DEP, Plaintiffs complaint is quite legitimately and legally
an action in common law nuisance that makes no challenge to the permitting process but rather
to the consequences of operation given the surrounding circumstances. This type of action is not
new to the Common Pleas courts and specifically relates to the consequences of a legally run and
legally permitted company where such operation results in interference with the personal and
property rights of the public. The common law action of nuisance has been recognized in
2
Pennsylvania for over 100 years, longer than chloramine has been used. (For example Feelev v.
Borough ofRidley Park, 551 A.2d 373, 121 Pa.Cmwith. 564 (Pa. Cmwhh., 1988) More recent
cases acknowledge the fact that a company can properly operate within the confines of permits
and the law and yet create a nuisance in fact as a result of that operation. (See e.g. Tmicum
Township v Delaware Yallev Concrete Inc., 2002 PA 4272 (PACW 2002), Machipongo Land
and Coal Company Inc v Departmem ofFarvironanental Protection, 799 A2d 751 (Pa 2002)
".. if mining causes or has a significant potential to cause a public nuisance, it can be prohibited
regardless of whether the landowner complied with all applicable statutes and regulations" Com.
V. Barnes & Tucker Co., 319 A.2d 871, 455 Pa. 392 (Pa.1974) stating: "The absence of facts
supporting concepts of negligence, foreseeability or unlawful conduct is not in the least fatal to a
finding of the existence of a common law public nuisance. The assumption that such might be
the case is based upon an entirely mistaken emphasis upon what the defendant has done rather
than the result which has followed, and forgets completely the well established fact that
negligence is merely one type of conduct which may give rise to a nuisance." At 755) Simply
because Defendant chooses to opine that this action is an attack on the permit in order to distract
the court from a legitimate claim does not negate the fact that the pleadings are properly brought
as a common law action in nuisance and well within the jurisdiction of this court.
11. DENIED. While Plaintiffs dispute Defendant's allegation, the issue of an emergency
injunction is now moot inasmuch as the court has already denied said Motion. Said allegation
does not have bearing on the underlying action in nuisance. and therefore should not be a basis
for granting Preliminary Objections to Plaintiffs' complaint. However, again to correct the
record, the criteria for seeking emergency injunctive relief includes having no adequate remedy
at law and facts that support immediate harm. Prior to Plaintiffs' filing, PAWC was on a self-
3
imposed delay which they publicized would not be lifted until the PUC case was resolved. The
Commonwealth appeal was the last step in the PUC litigation. The Commonwealth Court ruled
on 3une 29, 2010 , a mere nine days before Plaintiffs filed the instam action. Had Plaintiffs filed
prior to the ruling by the Commonweahh Court, Defendant would have claimed the issues herein
not ripe because a remedy at law still existed by virtue of the fact that the PUC case was still
open.
12. DENIED. Again, the allegations of Defendant are moot since the emergency
injunction has been denied. Said allegation has no bearing on the underlying action in nuisance
which appropriately seeks injunctive relief and therefore should not be a basis for granting
Preliminary Objections to Plaintiffs' complaint. However, in further response, Defendant's
allegations again incorrectly characterize this action as one challenging the Defendant's
compliance with DEP and EPA regulation, which it clearly is not. Defendant continues to assert
these characterizations in an effort to distract the Court from the tnie, legitimate and actionable
allegations brought by Plaintiffs. This paragraph of Defendant's Preliminary Objections provides
a classic example of such misleading statements. "As determined by DEP and EPA, Plaintiffs
will not be harmed by such water." However, since the EPA has carefully stated that
"monochloramine" will not harm the public and therefore, consistent with Plaintiffs' allegations,
PAWC is not in violation of EPA regulations by using monochloramine. However, EPA
specifically acknowledges that the unregulated byproducts of chloramine are more toxic than
currently regulated byproducts, that chloramine is lethal to wild and domestic fish, dangerous to
people with compromised immune systems, infants and the elderly and can result in nitrification
which is harmful to the environme~ and humans. Another statement, "....people in cities in
Pennsylvania and across the United States have received chloraminated water for decades" does
4
not state that no injury occurred from said exposure. People across the country have been
exposed to asbestos for decades as well and in perfectly legal situations. Their current causes of
action for injury aze no less valid simply because the use was prevalent.
13. DEI~TIED. Again, the allegations are moot since the emergency injunction as been
denied. Said allegation does not have bearing on the underlying action in nuisance and therefore
should not be a basis for granting Preliminary Objections to Plaintiffs' complaint. However, in
further response, Defendant initiated aself-imposed delay of the implementation of chloramine
in 2007 one day before it was to begin and had remained on that delay for three years until July
12, 2010. Defendant has been involved in and aware oiy continuous efforts by the community,
including but not limited to Plaintiffs numerous efforts to stop the implementation of chloramine
in the water system including hearings seeking a moratorium at the state legislature, meetings
with U. S. Congressmen and the U. S. and Regional EPA, letters from 10 of the 12 affected
municipalities and the Cumberland County Commissioners seeking delay and further
investigation into the adverse effects of chloramine. These efforts have not waned in the past
three years. Defendant operated its plants without the use of chloramine and remained in full
compliance with all EPA and DEP regulations for three years, knowing that the opposition to its
planned implementation of chloramine was continuing in full force and that any one of these
efforts could result in an order or moratorium disallowing the use of chloramine by Defendant.
Defendant proceeded to prepaze for implementation at its own peril.
14. DENIED. Defendant quotes its own promotional material, not Plaintiffs' allegations,
and again knowingly misleads this Court with false statements. Defendant is well aware that
Plaintiffs have proved with Defendant's own data that PAWC exceeds future drinking water
standards without the use of chloramine. Defendant is also aware of complaints from azound the
5
country of odor and taste of chloraminated water. Defendant has also itself acknowledged the
highly toxic nature of unregulated chloramine byproducts and therefore misleads the Court by
claiming that the public will benefit from the use of chloramine.
15. This paragraph pleads conclusions of law to which a response is not required.
16. Each and every allegation of this paragraph is defied and placed at issue.
17-25. Each and every allegation in these paragraphs is irrelevant, constitutes a speaking
demurer, and therefore should be stricken. In the ahernative, Defenda~'s allegations attempt to
characterize documents that speak for themselves and, as stated, are therefore denied and placed
at issue. In the further ahernative said allegations are conclusions of law to which a response is
not required. Once again, Plaintiffs do not herein challenge DEP's permitting process, the
granting of Defendant's construction or operating permit or violation of any EPA or DEP
regulation and therefore, for this additional reason, paragraphs 17 through 25 are irrelevant to
this action.
26-30. In response to paragraphs 26 through 30, the responses to paragraphs 17 to 25,
above, are incorporated by reference.
31-3 3 . Each and every of these paragraphs pleads conclusions of law to which a
response is not required.
34. ADMTTTED in part and DEI~IIED in part. Plaintiffs ADMIT that citizens of
Defendant's service area have been intensely attempting to litigate the issue of Defendant's use
of chloramine for three years. This averment and Defendant admissions in paragraph 12 of
Preliminary Objections negates Defendant's allegation that Plaintiffs have not acted promptly or
failed to use due diligence. Defendants own allegations throughout their Preliminary Objections
document Plaintiffs' diligent and continuous efforts to litigate this matter. This action was
6
timely filed following the ruling of the Commonwealth Court. Had the Commonwealth Court
ruled differe~ly, the emergency injunction would not have been necessary since Defendant had
stated that they would not move forward with the use of chloramine until the PUC case was
resolved. Plaintiffs sought emergency relief within a nine day window they were afforded by the
circumstances. Emergency injunctions are just that, a remedy to address the presence of
immediate harm. Six mornhs ago the harm was not immediate and the decision in a pending
court case could have resulted in a fiuther delay. That Defendant set and announced their date
of implementation prior to the ruling by the Commonwealth Court was a situation of their own
making and defied their own previous commitment not to implement chloramine until the PUC
case was resolved.
Plaimiffs deny Defendant's opinion and attempt to impugn Plaintiffs' character and there
was no deception since all parties know and the court reasonably should have known that
unresolved litigation was pending of record. The previous cases have no bearing on the present
litigation since those cases addressed administrative law matters and are herein irrelevant.
However, the existence of these cases negates any allegations of lack of diligence or
untimeliness.
35. Each and every allegation of paragraph 35 is denied and in further answer the
allegations of paragraph 34 above, are incorporated by reference.
36. After reasonable investigation, Plaintiffs are without knowledge as to the truth of
allegations in paragraph 36 and are therefore denied and placed at issue, if material and relevant.
In the alternative the allegations of paragraph 36 constihrte a speaking demurer and should be
stricken.
7
37. The averme~s of paragraph 37 are denied and in further response the averments of
paragraph 34, above, are incorporated by reference. In the alternative, Defendant's allegations
are scandalous and impertinent and should be stricken. In the further alternative, paragraph 37
pleads conclusions of law to which a response in not required.
38-55. Paragraphs 38 through 55 are moot since immediate injunctive relief has been
denied by the Court. However, for the reasons already pleaded in this Answer, which are
incorporated by reference, Plaimiffs are properly advancing a claim for injunctive relief by
appropriately seeking and alleging a basis for a declaration that Defendant's introduction of
chloramine, while permitted by administrative authorities, nevertheless creates a public nuisance
which should be enjoined.
WHEREFORE, Plaintiffs respectfully request that Defendant's Preliminary Objections
be stricken and that they be required to answer on the merits so that this case can be placed at
issue for further proceedings.
Respect submitted
S an K. Pickfor ,Esq.
ttorney for Plaintiffs
ID # 43093
2612 Chestnut Street
Camp Hill, PA 17011
717-731-5698
8
VERIFICATION
I, Paul Garrett, do hereby certify that any facts set forth in the forgoing document are true and
correct to the best of my knowledge. I understand that false statements herein are made subject
to the penalties of 198 Pa.C.S. 4904 relating to unswom falsification to authorities.
Date: ?~~ 20/1) ~Q~,(~ l~
Paul Garrett
VERIFICATION
I, Nancy Cox, do hereby certify that any facts set forth in the forgoing document are true and
correct to the best of my knowledge. I understand that false statements herein are made subject
to the penalties of 198 Pa.C.S. 4904 relating to unsworn falsification to authorities.
Date: °~~2 ~`/d
Nancy Cox
CERTIFICATE OF SERVICE
NANCY COX,
PAUL GARR~TT,
PENNSYLVANIA
Plaintiffs
:IN THE COURT OF COMMON PLEAS
:CUMBERLAND COUNTY,
:Docket No: 10-4505 Civil
V
PENNSYLVANIA AMERICAN
WATER COMPANY
Defendant
Action in Equity
I hereby certify that I have on the day indicated below served a true copy of the foregoing
document(s) upon the parties of record in this proceeding in accordance with the
requirements of 52 Pa. Code § 1.54 in the manner and upon the persons listed below:
SERVICE BY FIRST CLAS5 MAIL POSTAGE PREPAID
Seth A. Mendelsohn, Esq.
Pennsylvania American Water Company
800 West Hershey Park Drive
Hershey, PA 17033
Attorney for Defendant
Rhonda L. Davison, Esq
Stephanie M. Wimer, Esq.
Pa. Public Utility Commission
P.O. Box 3265
Harrisburg, PA 17105
Ann Johnston, Esq.
Office of Regulatory Counsel
DEP
919 Elmerton Avenue, Third Floor
Harrisbrug, PA 17110
Respectfully submitted,
DATE: July 27, 2010
usan K. Pickfo d, Es
Attorney for the Plaintiffs
ID #43093
2612 Chestnut Street
Camp Hill, AP 17011
(717)731-5698
Susan K. Pickford, Esq.
Attorney for Plaintiffs
ID # 43093
2612 Chestnut Street
Camp Hill, PA 17011
717-731-5698
NANCY COX,
PAUL GARRETT,
Plairniffs
v
PENNSYLVANIA AMERICAN
WATER COMPANY
Defendant
~~~ L -
r ~~T ~ ~~~
'1t 'r~. f`- i ..
2~~Q ~'~'j ~? PM 3= 1 S ~~
C"J~~r~ tvT`r
;_ c~
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
:Docket No: -~4595~Civi1
l0 -NSo~i
Action in Equity
P ~ 'ANSWER TO PETITION TO INTERVENE
BY PA DEPARTMENT OF ENVIRONMENTAL PROTECTION
NOW COME Plaintiffs and file this Answer to PA Department of Environmental
Protection's Petition to Intervene:
1. DENIED. By way of father Answer, the jurisdiction of the PA Departmern of
Environmental Protection ("DEP") is limited to enforcement of vwater quality issues pursuant to
the Safe Drinking Water Act ("SDWA"). Plaintiffs' complaint does not allege a violation of the
Safe Drinking Water Act and therefore does not invoke the jurisdiction of the DEP. Nor does
Plaintiffs' complaint allege a water quality issue as it relates to the Safe Drinking Water Act.
2. DENIED. By way of further Answer, Plaimiffs' complaint does not challenge the
issuance of the pernut granted to PAWC by DEP. Plaintiff's acknowledge the issuance of a valid
permit by DEP to PAWC. The permit was granted a$er evaluation of suiliciency of PAWC's
facility, availability and training of its staffto implement the chloramine system and the
authority of U. S. EPA. to utilize chloramine as a treahnern ahernative. Plaintiffs complaint
alleges public nuisance as a result of a lawfully permitted and lawfully operating business
wherein the particular method of operation, while lawful, creates a nuisance in fact as a result of
unavoidable intervening circumstances. This is not a cause of action enforceable under the
SDWA.
3. ADMITTED. However, by way of further answer, Plaintiffs complaint is neither
an action against the permutting process of DEP nor the granting of the permit by DEP and
therefore this allegation has no relevance to the proceeding and does not allege grounds
sufficient to grant standing to intervene.
4. ADMITTED. However, by way of furtheX answer, Plaintiffs complaint does not
allege issues of notice or sufficiency of PAWC's permit and therefore this allegation is not
relevant to the proceeding and does not allege grounds sufficient to grant standing to intervene.
5. ADMITTED. However, by way of further answer, Plaintiffs complaint does not
allege issues of notice or sufficiency of PAWC's permit and therefore this allegation is not
relevant to the proceeding and does not allege grounds sufficient to gram standing to intervene.
6. ADMITTED. However, by way of further answer, Plaintiffs complaint does not
allege issues of notice or sufficiency of PAWC's permit and therefore this allegation is not
relevam to the proceeding and does not allege grounds sufficiem to gram standing to imervene.
7. ADMITTED. However, by way of further answer, Plaintiffs complaint does not
allege issues of notice or sufficiency of PAWC's permit and therefore this allegation is not
relevant to the proceeding and does not allege grounds sufficient to grant standing to intervene.
8. DENIED. By way of further answer, inasmuch as the permitting processes and
decisions of DEP are not challenged by the instant action, DEPs jurisdiction will not be affected
by the outcome of this action. Further, the choice of treatment is not the jurisdiction or purview
2
of DEP but rather is in the sole discretion of the utility as long as they can comply with
requirements of operating such a system. Plaintiffs' complairn is against the water company for
choosing a method which, when put irno practice creates a nuisance in fact. This does not in any
manner affect the DEP's permitting process or decision making.
9. DEI~TIED. By way of further answer, Plaintiffs complairn does not involve
processes or jurisdiction of the DEP and therefore the public interest is not affected by failure to
grant intervention to the DEP.
10. Petitioner does not state a fact to which a response is required. However,
Pa.R.C.P. 2329 does not provide for `support' of other agencies as a criteria for granting
intervention and therefore intervernion should not be granted on this basis.
11. Neither the PUC nor the DEP have a jurisdictional interest by which to intervene
in this action.
12. Plaintiffs' compliant seeks relief from actions from Defendant water company's
conducted pursuant to DEP authority, but does not request any relief from the DEP or a
revocation of the permit grarned defendant by the DEP. While this action could result in an
order inhibiting Defendarn's performance under the DEP permit, Plairniffs do not ask, nor do
they need assistance from the DEP in achieving this result. And any decision for Plaintiffs
would not result in any adverse consequences or prejudices to the DEP's jurisdiction or
authority.
13. Pa. Rule of Civil Procedure 2329 specifically provides for and requires a noticed
hearing to determine whether the allegations of the Petition to Irnervene have been established
and are sufficient before entering an order allowing irnervention.
3
of DEP but rather is in the sole discretion of the utility as long as they can comply with
requirements of operating such a system. Plaintiffs' complaint is against the water company for
choosing a method which, when put into practice creates a nuisance in fact. This does not in any
manner affect the DEP's permitting process or decision making.
9. DENIED. By way of further answer, Plaintiffs complaint does not involve
processes or jurisdiction of the DEP and therefore the public interest is not affected by failure to
grant intervention to the DEP.
10. Petitioner does not state a fact to which a response is required. However,
Pa.R.C.P. 2329 does not provide for `support' of other agencies as a criteria for granting
intervention and therefore intervention should not be granted on this basis.
11. Neither the PUC nor the DEP have a jurisdictional interest by which to intervene
in this action.
12. Pa. Rule of Civil Procedure 2329 specifically provides for and requires a noticed
hearing to determine whether the allegations of the Petition to Iirtervene have been established
and are sufficient before entering an order allowing i~ervention.
13. Plaintiffs were denied a hearing at which Petitioners would bear the burden of
proof of standing to intervene.
WHEREFORE, Plaintiffs respectfully request that this Honorable Court reconsider and
vacate the previous Order granting intervemion by DEP and set a noticed hearing pursuant to
Pa.R.C.P.
Res ly sub
san K. Pic or ,1~
ID # 43093
2b 12 Chestnut Street
Camp Hill, PA 17011
3
VERIFICATION
I, Paul Garrett, do hereby certify that any facts set forth in the forgoing docwment are true and
correct to the best of my knowledge. I understand that false statements herein are made subject
to the penalties of 198 Pa.C.S. 4904 relating to unsworn falsification to authorities.
Date: ~ ~/1,,.Q
f zd /~ Paul Garrett
VERIFICATION
I, Nancy Cox, do hereby certify that any facts set forth in the forgoing document are true and
correct to the best of my knowledge. I understand that false stateme~rts herein are made subject
to the penalties of 198 Pa.C. S. 4904 relating to unsworn falsification to authorities.
Date: ~l f 2 G~/o
Nancy Cox
CERTIFICATE OF SERVICE
NANCY COX,
PAUL GARRETT,
PENNSYLVANIA
Plaintiffs
:IN THE COURT OF COMMON PLEAS
:CUMBERLAND COUNTY,
:Docket No: 10-4505 Civil
V
PENNSYLVANIA. AMERICAN
WATER COMPANY
Defendant
Action in Equity
I hereby certify that I have on the day indicated below served a true copy of the foregoing
documents} upon the parties of record in this proceeding in accordance with the
requirements of 52 Pa. Code § 1.54 in the manner and upon the persons listed below:
SERVICE BY FIRST CLASS MAIL. POSTAGE PREPAID
Seth A. Mendelsohn, Esq. Rhonda L. Davison, Esq
Pennsylvania American Water Company Stephanie M. Wimer, Esq.
800 West Hershey Park Drive Pa. Public Utility Commission
Hershey, PA 17033 P.O. Box 3265
Attorney for Defendant Harrisburg, PA 17105
Ann Johnston, Esq.
Office of Regulatory Counsel
DEP
919 Elmerton Avenue, Third Floor
Harrisbrug, PA 17110
DATE: July 27, 2010
Respectfully submitted,
usan K. Pickfo ,Esq.
Attorney for the PlaintL s
ID #43093
2612 Chestnut Street
Camp Hill, AP 17011
(717)731-5698
Susan K. Pickford, Esq.
Attorney for Plairniffs
ID # 43093
261 Z Chestnut Street
Camp Hill, PA 17011
717-731-5698
NANCY COX,
PAUL GARRETT,
Plairniffs
Fil.=fLL;_~:
•`.4 Tf.f}
rr.~
Z~I~JUL 27 Pty 3~ I~ ~9`
- , -n,
CLh~._~. _ . 4!~io
:IN THE COURT OF COMMON PLEAS
:CUMBERLAND COUNTY, PENNSYLVANIA
:Docket No: 10-4505 Civil
V
PENNSYLVANIA AMERICAN
WATER COMPANY
Defendarn
Action in Equity
NOW COME Plaintiffs and file this Answer to PA Public Utility Commission's Petition
to Intervene:
DENIED. The jurisdiction of the PA Public Utility Commission {"PUC"), as
vigorously argued by the Commission, Department of Environmental Protection ("DEP") and
Defendant in the instant case ("PAWC") during the proceedings at the PUC and reflected in the
unpublished Opinion of the Commonwealth Court, inappropriately cited in PUC's Petition to
Intervene, is limited to reasonableness of service for all household uses and does not include the
issues of public nuisance, health and environmental consequences resulting from a legally
implemented water treatmern system.
2. ADMITTED in part and DENIED in part. It is admitted that DEP has jurisdiction
over enforcement of water quality issues under the Safe Drinking Water Act. It is denied,
however that the PUC has standing to Intervene in the instant case on behalf of the DEP for
purposes of azguing DEP's jurisdiction under the Safe Drinking Water Act. (Pa.Rule of Civil
Procedure 2327.)
3. DENIED. The appeal before the Commo~veahh Court cited by PUC was filed
against the PUC, not PAWC or DEP, and involved only issues as to whether health effects
constituted safe and reasonable service under the Public Utility Code. The PUC held the position
that health issues in fact aze not under its jurisdiction, yet in the instarn action seek standing to
intervene on these issues, failing to allege any direct irnerest in the outcome of these
proceedings. An appeal of the PUC case to the PA Supreme Court, even if permitted, would not
provide a remedy to Plairniffs' complaint in the instant case.
4. Petitioner does not state facts for which a response is required.
Plairniffs' complaint does not allege a violation of the Safe Drinking Water Act
and therefore does not invoke the jurisdiction of the DEP.
6. Plaintiffs' complairn does not challenge the issuance of the permit granted to
PAWC by DEP.
7. Plaintiffs complairn does not challenge whether the service provided by the utility
is safe and reasonable service under the Public Utility Code and thereby does not invoke the
PUC's jurisdiction.
8. Plaintiffs complaint alleges public nuisance as a result of a lawfully permitted and
lawfully operating business wherein the particulaz method of operation, while lawful, creates a
nuisance in fact as a result of unavoidable irnervening circumstances.
9. The Petitioner has failed to allege a factual basis to support criteria required under
Pa. Rule of Civil Procedure 2327 to permit irnervention in this action.
2
10. Pa. Rule of Civil Procedure 2329 specifically provides for and requires a noticed
hearing to detenmine whether the allegations of the Petition to Intervene have been established
and are sufficient before einering an order allowing intervention.
11. Plaintiffs were denied a hearing at which Petitioners would bear the burden of
proof of standing to intervene.
WHEREFORE, Plaiiniffs respectfully request that this Honorable Court reconsider and
vacate the previous Order graining iinervention by PUC and set a noticed hearing pwsuant to
Pa.R.C.P. 2329.
Res lly submitted ,
usan K. Pic rd, E
Attorney for Plainti
ID # 43093
2612 Chestnut Street
Camp Hill, PA 17011
717-731-5698
3
VERIFICATION
I, Paul Garrett, do hereby certify that any facts set forth in the forgoing document are true and
correct to the best of my knowledge. I understand that false statements herein are made subject
to the penahies of 198 Pa.C.S. 4904 relating to unsworn falsification to authorities.
Date: .Z(~ z ~ ~ d
Paul Garrett
VERIFICATION
I, Nancy Cox, do hereby certify that any facts set forth in the forgoing documem are true and
correct to the best of my knowledge. I understand that false statements herein are made subject
to the penalties of 198 Pa.C.S. 4904 relating to unsworn falsification to authorities.
Date: ~~2 ~ / ~ 6
Nancy Cox
CERTIFICATE OF SERVICE
NANCY COX,
PAUL GARRETT,
PENNSYLVANIA
Plairniffs
V
:IN THE COURT OF COMMON PLEAS
:CUMBERLAND COUNTY,
:Docket No: 10-4505 Civil
PENNSYLVANIA AMERICAN
WATER COMPANY
Defendarn
Action in Equity
I hereby certify that I have on the day indicated below served a true copy of the foregoing
document(s) upon the parties of record in this procxeding in accordance with the
requirements of 52 Pa. Code § 1.54 in the manner and upon the persons listed below:
SERVICE BY FIRST CLASS MAII, POSTAGE PREPAID
Seth A. Mendelsohn, Esq.
Pennsylvania American Water Company
800 West Hershey Park Drive
Hershey, PA 17033
Attorney for Defendarn
Rhonda L. Davison, Esq
Stephanie M. Wimer, Esq.
Pa. Public Utility Commission
P.O. Box 3265
Harrisburg, PA 17105
Ann Johnston, Esq.
Office of Regulatory Counsel
DEP
919 Elmerton Avenue, Third Floor
Harrisbrug, PA 171.10
DATE: July 27, 2010
Respectfully submitted,
usan K. Pickf d, E
Attorney for the Plaintiffs
ID #43093
2612 Chestnut Street
Camp Hill, AP 17011
(717)731-5698
~'iI _
,1
Rhonda L. Daviston, Assistant Counsel
Attorney I.D. No. 49640
Stephanie M. Wimer, Assistant Counsel
Attorney I.D. No. 207522
Pennsylvania Public Utility Commission
P.O. Box 3265
Harrisburg, PA 17105-3265
(717) 787-5000
~DIo ~~ a Pm i X510
G11~~- ~ ....'~ti:~
;- _ „ ,. _
NANCY COX
PAUL GARRETT
Plaintiffs,
v.
PENNSYLVANIA AMERICAN WATER
COMPANY
COURT OF COMMON PLEA5
CUMBERLAND COUNTY
NO.10-4504 Civil
Defendant.
RESPONSE BY PENNSYLVANIA PUBLIC UTILITY COMMISSION TO
PLAINTIFFS' OBJECTIONS TO THE COMMISSION'S PETITION TO INTERVENE
AND MOTION TO VACATE ORDER GRANTING SAME
AND now comes the Pennsylvania Public Utility Commission (Commission), by
and through its undersigned attorneys, and files this responsive pleading in the above
captioned matter, pursuant to the Pennsylvania Rules of Civil Procedure No. 1029, and
avers as follows:
1. Admitted.
2. Admitted.
3. Admitted.
4. It is admitted that the Court denied Plaintiffs' Motion for Injunctive Relief.
The Commission lacks sufficient knowledge to admit or deny the remainder of the
allegations contained in Paragraph 4.
5. It is admitted that the Court granted the Commission's, as well as the
Pennsylvania Department of Environmental Protection's (DEP), petitions to intervene.
By way of further response, the issuance of a rule to show cause is discretionary with the
Court. C,C.R.P.206.4(c).
6. This averment is a conclusion of law to which no response is required.
7. Admitted. By way of further response, the issuance of a rule to show cause is
discretionary with the Court. C.C.R.P. 206.4(c).
8. It is admitted that the Court did not schedule a hearing. By way of further
response, as is evident from Plaintiff's Objections and Motion to Vacate, it is denied that
Plaintiffs were denied the opportunity to present arguments against the Court's granting
of the Commission's and DEP's petitions to intervene.
9. This averment is denied as a conclusion of law insofar as it avers that the
Commission lacks standing to intervene.
10. Admitted.
FURTHER RESPONSE
The Commission further responds to Plaintiffs' Objections to the Commission's
Petition to Intervene and Motion to Vacate Order Granting Same.
11. Plaintiffs couch their complaint in terms of a public nuisance. However,
the complaint is a collateral attack on the DEP issued permits and an attempt to
undermine both the DEP and Commission's jurisdiction. Specifically, in this instance,
Plaintiffs argue that the Commission's jurisdiction is limited to reasonableness of service
for all household uses and does not include the issues of public nuisance, health and
environmental consequences resulting from a legally implemented water treatment
system.
12. Plaintiff Cox and Attorney Pickford, who were Plaintiffs in Pickford, et al
v. Pa. Public Utility Commission, No. 1157 C.D 2009 (Pa. Cmwlth.) (Unreported
Decision) (filed June 29, 2010), argued unsuccessfully before the Commission and
Commonwealth Court that the Commission should prevent Pennsylvania American
Water Company (PAWC) from transitioning to chloramine disinfection for health and
environmental reasons.
13. PAWC is a Commission jurisdictional utility providing water service in
Pennsylvania and, as such, is required to comply with DEP and EPA rules and
regulations. 52 Pa. Code §§ 65.17, 65.18.
14. The Commission is tasked with the responsibility of ensuring that all
jurisdictional water utilities provide safe and reliable service. 66 Pa.C.S. § 1501.
15. It is conceivable, based upon the past arguments of Plaintiffs in related
cases before the DEP and Commonwealth Court, and then before the Commission and
Commonwealth Court, that matters involving the jurisdiction of the Commission may be
4
implicated. In the event that that occurs, the Commission asserts that it would be
necessary to have Commission counsel participate in this proceeding.
16. The Commission's interests are not adequately represented by the existing
participants. Pursuant to Pa. R.C.P. No. 2327(4), intervention may be granted if "any
legally enforceable interest" maybe affected by the determination or judgment in the
underlying action.
17. In this instance, intervention will not prejudice the Plaintiffs in any way.
The presiding officer has broad discretion to grant intervention, which the Commission
asserts is appropriate in this case. "Whether to allow intervention is a matter within the
discretion of the court below" and will be upheld on appeal absent a manifest abuse of
that discretion. M. London, Inc. v. Fedders Corp., 452 A.2d 236 (Pa. Super. Ct. 1982).
As stated earlier, the Commission's purpose for intervening is to ensure that the
Commission's interests are properly represented before this Honorable Court.
18. As stated in In Re Philadelphia Health Care Trust, 872 A.2d 258 (Pa.
Cmwlth. 2005), "standing requires that an aggrieved party have an interest that is
substantial, direct, and immediate." In this case, an adverse ruling involving PAWC's
ability to disinfect its water in compliance with its DEP approved permits would have a
substantial direct and immediate effect on the Commission's ability to carry out its
statutory mandate to ensure that public utilities provide service in compliance with DEP
and EPA rules and regulations.
19. Such an unintended result could lead to serious consequences and may
encourage others to attempt to overturn administrative agency decisions through the
Court of Common Pleas.
20. Moreover, granting intervention in this case will not unduly delay,
embarrass or prejudice the trial or the adjudication of the rights of the parties. Granting
intervention will ensure that all of the parties in this matter with a substantial interest are
properly represented before this Court.
WHEREFORE, the Commission respectfully requests that the Court deny
Plaintiffs' Motion to Vacate its Order, which granted the Commission's Petition to
Intervene.
Respectfully submitted,
~~ ~^' !`°
Rhonda L. Daviston, Assistant Counsel
Attorney I.D. No. 49640
Stephanie M. Wimer, Assistant Counsel
Attorney I.D. No. 207522
Counsel for the Pennsylvania
Public Utility Commission
P.O. Box 3265
Hamsburg PA 17105-3265
(717) 787-5000
6
Certificate of Service
I hereby certify that I have this day served a true and correct copy of the foregoing
document(s) which was filed on behalf of the Pennsylvania Public Utility Commission,
upon the following persons and in the manner indicated below:
SERVICE VIA REGULAR MAIL. POSTAGE PRE-PAID:
Susan K. Pickford, Esq. Seth A. Mendelsohn, Esquire
2612 Chestnut Street Pennsylvania American Water Company
Camp Hill, PA 17011 800 West Hershey Park Drive
Attorney for Plaintiffs Hershey, PA 17033
Attorney for Defendant
Susan Simms Marsh, Esq.
Pennsylvania American Water Company
800 W. Hershey Park Drive
Hershey, PA 17033-0888
Attorney for Defendant
Ann R. Johnston, Esq.
Pennsylvania Department of
Environmental Protection
909 Elmerton Avenue
Harrisburg, PA 17110
Attorney for Intervenor
Michael Klein, Esquire
Dewey & LeBoeuf, LLP
1101 New York Avenue NW
Washington, DC 20005-4213
Attorney for Defendant
onda L. Daviston, Assistant Counsel
Attorney I.D. No. 49640
~~ ~.
Stephanie M. Wimer, Assistant Counsel
Attorney I.D. No. 207522
Counsel for the Pennsylvania
Public Utility Commission
P.O. Box 3265
Harrisburg PA 17105-3265
(717) 787-5000
Dated: August 9, 2010
NANCY COX and IN THE COURT OF COMMON PLEAS OF
PAUL GARRETT, :CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFFS
V.
PENNSYLVANIA AMERICAN WATER
COMPANY,
DEFENDANT 10-4504 CIVIL TERM
ORDER OF COURT
AND NOW, this day of August, 2010, upon consideration of
plaintiff's objections to the petitions to intervene filed by the Department of
Environmental Protection and the Pennsylvania Public Utility Commission, a hearing
shall be held on Monday, October 25, 2010, at 2:30 p.m., in Courtroom Number 5,
Cumberland County Courthouse, Carlisle, Pennsylvania.
By the Court,
Albert H. Masland, J.
Susan K. Pickford, Esquire r,
For Plaintiffs
~ _ ---~
` ~ ~ : .. ,,
Seth A. Mendelsohn, Esquire ~ _.• _-_
For Defendant ~ -
. Y1 _,.
~ Rhonda L. Daviston, Esquire
Stephanie M. Wimer, Esquire -; ~ ••
For Pennsylvania Public Utility Commission ~`~ ~ ~~
Ann R. Johnston, Esquire
For Commonwealth of Pennsylvania, Department of Environmental Protection
:sal
Cod; ~s h,.a .~ fed ~/i r ~~ a
~G
COMMONWEALTH OF PENNSYLVANIA
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
FII-F
" I I " P All)) =30
NANCY COX,
PAUL GARRET,
PLAINTIFFS
V.
: Docket No. 10-4504 Civil
PENNSYLVANIA AMERICAN
WATER COMPANY,
DEFENDANT
RESPONSE BY THE COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF ENVIRONMENTAL PROTECTION, TO PLAINTIFFS'
OBJECTIONS TO PETITION TO INTERVENE AND
MOTION TO VACATE INTERVENTION
The Commonwealth of Pennsylvania, Department of Environmental Protection
("Department") hereby files this responsive pleading in the above captioned matter,
pursuant to Pennsylvania Rule of Civil Procedure Number 1029. The Department avers
as follows:
PARAGRAPH BY PARAGRAPH RESPONSE
1. Admitted.
2. Denied. Pennsylvania American Water Company's ("PAWC")
Preliminary Objections to Plaintiffs' complaint does not include the same 55 numbered
paragraphs as the Objections to Plaintiffs' emergency motion.
3. Admitted.
4. The Department admits that the Court denied Plaintiffs motion but is
without knowledge to admit or deny the remainder.
1
5. Admitted.
6. As the statement contains assertions of legal rights and/or obligations, the
statement is construed as a conclusion of law to which no response is required. To the
extent that a response is required, the Department denies the allegations
7. Admitted.
8. Admitted. However, as is evident, Plaintiffs are now contesting this
matter.
9. As the statement contains assertions of legal rights and/or obligations, the
statement is construed as a conclusion of law to which no response is required. To the
extent that a response is required, the Department denies the allegations
10. Admitted.
FURTHER RESPONSE
In the following Paragraphs, the Department further responds to the Objections to
Petition to Intervene by the Department of Environmental Protection and Petition to
Intervene by the PA Public Utility Commission and Motion to Vacate Order Granting
same.
1. The Department has an interest in this matter because it is the agency with
the duty and authority to administer and enforce the Pennsylvania Safe Drinking Water
Act, Act of May 1, 1984, P.L. 206, as amended, 35 P.S. §§ 721.1, et seq. ("Safe Drinking
Water Act" or "SDWA" ); and Section 1917-A of the Administrative Code of 1929, Act
of April 9, 1929, P.L. 177, as amended, 71 P.S. § 510-17, and the rules and regulations
promulgated under each of the above-mentioned acts. Under the SDWA, the Department
2
is authorized to issue permits to public water systems to construct and operate drinking
water facilities.
Collateral attack on permits
2. The Department issued SDWA permits to PAWC in which the
Department authorized PAWC to use the disinfectant, chloramines.
3. The Plaintiffs are herein collaterally attacking those Department-issued
SDWA permits.
4. All final Department decisions, such as the permits at issue here, must be
appealed to the Environmental Hearing Board ("EHB") within thirty days after notice of
the Department's action. Rostosky v. Dept ofEnvtl. Prot., 364 A.2d 761 (Pa. Cmwlth.
1976). If an appeal is not timely filed, an action of the Department becomes final, and is
no longer appealable. 35 P.S. § 7514(c); 25 Pa. Code § 1021.52(a). A person who
wishes to challenge a Department permit must file a timely appeal with the EHB.
5. On November 30, 2007, Susan K. Pickford, who represents the Plaintiffs
in this matter, appealed to the EHB, seeking review of the above referenced PAWC
SDWA permits, and asserting a denial of due process because the public notices did not
reasonably inform interested parties of the change to chloramines. Pickford v. Dept of
Envtl. Prot., 967 A.2d 414,417 (Pa. Cmwlth. 2008). The EHB dismissed Pickford's
appeal on the grounds that it was untimely filed. Id. The EHB further determined that
the notices were not misleading or incomplete. Id.
6. Ms. Pickford then appealed the EHB decision to the Commonwealth Court
of Pennsylvania. The Commonwealth Court affirmed the EHB order, concluding that
Ms. Pickford's appeal to the EHB was untimely and that the Department's public notices
3
were adequate. Id. at 419. Ms. Pickford subsequently filed a Petition for Allowance of
Appeal, which the Supreme Court of Pennsylvania denied on July 30, 2009. Pickford v.
Dep 't of Envtl. Prot., '982 A.2d 67 (2009).
7. The Plaintiffs in this action did not appeal the Department-issued permits
at issue to the Environmental Hearing Board within thirty days after notice of the
Department's action and thus are precluded from collaterally attacking those permits
now.'
8. Collateral Attack on Drinking Water Standards
9. In addition to collaterally attacking the Department's permits, the
Plaintiffs are collaterally attacking SDWA drinking water standards.
10. Pursuant to the PA SDWA, the DEP is required to adopt and implement a
public water supply program that includes those program elements necessary to assume
State "primary enforcement responsibility" (also called "primacy") under the US SDWA.
35 P.S. § 721.5(a).2 Those elements include: "establishing drinking water quality
standards, monitoring, reporting, recordkeeping and analytical requirements,
requirements for public notification, standards for construction, operation, permitting and
modifications to public water systems, emergency procedures, standards for treatment
techniques, and compliance and enforcement procedures." Id.
' Pickford also represented herself and other citizens in an attack on these Department permits before the
Pennsylvania Public Utility Commission ("Commission"). Pickford v. Public Utility Comm., No. 1157
C.D. 2009 at 3 (Pa. Cmwlth. 2010) (Unreported decision). The Commonwealth Court, on June 29, 2010,
affirmed the Commission's order dismissing Pickford's complaint. Id.
2 Under the US SDWA, a State has "primary enforcement responsibility" or "primacy" for public water
systems if the State, inter alia, (1) has adopted drinking water regulations that are no less stringent than the
national primary drinking water regulations promulgated under the US SDWA and (2) has adopted and is
implementing adequate procedures for the enforcement of such State regulations, including conducting
monitoring and inspections. 42 U.S.C. §§ 300g-2(a). The regulations adopted under the US SDWA define
"primary enforcement responsibility" as "the primary responsibility for administration and enforcement of
primary drinking water regulations and related requirements applicable to public water systems within a
State." 40 CFR § 142.2.
4
11. The United States Environmental Protection Agency ("EPA") has
promulgated an enforceable Maximum Residual Disinfectant Level (MRDL) for
chloramines in drinking water and has promulgated a Maximum Residual Disinfectant
Level Goal (MRDLG) for chloramines.3 The MRDL and MRDLG for chloramines are
the same.
12. The SDWA authorizes the Environmental Quality Board ("EQB") to
adopt regulations of the Department applicable to public water suppliers, including
MCLs, MRDLs and treatment technique requirements "no less stringent than those
promulgated under the Federal act for all contaminants regulated under the national
primary and secondary drinking water regulations." 35 P.S. § 721.4(a). The EQB did
adopt the MRDL for chloramines. 25 Pa. Code § 109.202(f).
13. In addition to the MRDL for chloramines, the EPA has promulgated
multiple, enforceable Maximum Contaminant Levels ("MCLs") for nine disinfection
byproducts.
14. The EQB did adopt all nine of the MCLs for these nine disinfection
byproducts. 25 Pa. Code § 109.202(a)(2).
15. Through the current complaint, the Plaintiffs are collaterally attacking the
chloramines standards and the disinfection byproducts standards set by the EQB.
Plaintiffs are precluded from collaterally attacking these standards in this forum.
' A MRDLG is the level of drinking water disinfectant below which there is no known or expected risk to
health. The Goals are to be based exclusively on public health considerations. In contrast, in setting the
primary drinking water standard itself, the MRDL consider not only the MRDLG but also the
"technological and economic feasibility of compliance with the proposed primary drinking water standard."
Thus, the MRDL setting of primary drinking water standards involves a balancing of public health
concerns with questions of technological feasibility and cost.
5
16. If the Plaintiffs are attempting to force regulation of disinfectant
byproducts not yet regulated by the Department and the federal government, the
mechanism for that is to petition the EQB and/or to participate in the federal rulemaking
process.
17. In sum, the Department's interest in this matter is to ensure that its
permitting decisions and the EQB MRDL standards for chloramines and its disinfectant
byproduct MCL standards are not collaterally attacked.
Mandatory Intervention
18. In Pennsylvania, petitions to intervene are governed by Pa. R.C.P. Nos.
2326-2350.
19. Pursuant to Pa. R.C.P. No. 2327, there are four categories of persons who
may intervene in an action, including persons who have "any legally enforceable interest"
that may be affected by the outcome of the underlying action. Pa. R.C.P. No. 2327(4).
20. A petition to intervene may be refused if the claim or defense of the
petitioner is not in subordination to and in recognition of the property of the action; the
interest of the petitioner is already adequately represented or the petitioner has unduly
delayed in making application for intervention or intervention will unduly delay,
embarrass or prejudice the trial or adjudication of the rights of the parties. Pa. R.C.P. No.
2329.
21. In addition, as set forth in In re: Philadelphia Health Care, 872 A. 2d 258,
261 (Pa. Cmwlth. 2005), "considering Rules 2327 and 2329 together, the effect of Rule
2329 is that if the petitioner is a person within one of the classes described in Rule 2327,
the allowance of intervention is mandatory, not discretionary, unless one of the four
6
classes described in Rule 2327 is present." Equally, if the petitioner does not show
himself to be within one of the four classes described in Rule 2327, intervention must be
denied, irrespective of whether any of the grounds for refusal in Rule 2329 exist. Id.
22. In addition to the above, the Pennsylvania Supreme Court has stated that
the question of intervention is within the sound discretion of the court and will not be
subject to review absent a "manifest abuse of discretion." Wilson v. State Farm Mut.
Auto Ins. Co., 517 A.2d 944 (1986).
23. Applying these intervention principles to the case at hand, this Court, in
granting the Department's motion to intervene, did not specify its reasoning.
24. It would not be a manifest abuse of discretion for this Court to have
determined that the Department of Environmental Protection is a "person" within one of
the classes described in Rule 2327 as it has a "legally enforceable interest" based upon
the premise that it issued the SDWA permits at issue herein.
25. Therefore, the allowance of the Department's intervention could be
considered mandatory and thus is not an error or abuse of discretion.
Hearing Requirement
26. Although Pa. R.C. P. No. 2329 requires that a hearing be held on
intervention and the court, if the allegations of the petition have been established, shall
enter an order allowing intervention, the Commonwealth Court has indicated that lack of
a hearing is not necessarily an abuse of discretion in every circumstance. Chairge v.
Exetor Borough Zon. Hearing Bd., 616 A.2d 1057 (Pa. Cmwlth. 1992).4
4 Most of the cases on intervention that research uncovered were in the context of a court denying
intervention. For example, see Chairge, id.
7
27. As applied to the present matter, given that the Department's intervention
could easily be considered mandatory, the Court's granting of intervention without a
hearing was not an abuse of discretion.
CONCLUSION
In summary, the Department is acting to protect the public interest by protecting
SDWA permits issued pursuant to that Act as well as both the SDWA water quality
standards and the Commonwealth Court's order in this matter. For all of the above
reasons, the Court was correct in granting the Department's petition to intervene.
Therefore, this Court should deny Pickford's motion to vacate the same.
Respectfully Submitted,
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF ENVIRONMENTAL PROTECTION,
OFFICE OF CHIEF COUNSEL
Ann R. Tohnston
Assistant Counsel
Supreme Court I.D. #41568
South Central Regional Office
909 Elmerton Avenue, Third Floor
Harrisburg, PA 17110-8200
717-787-8790
Date: August 10, 2010
8
CERTIFICATE OF SERVICE
I hereby certify that I have this day served a true and correct copy of the foregoing
document(s) which were filed on behalf of the Commonwealth of Pennsylvania, Department of
Environmental Protection upon the following persons and in the manner indicated below:
SERVICE VIA REGULAR MAIL, POSTAGE PRE-PAID:
Susan K. Pickford, Esq. Seth A. Mendelsohn, Esq.
2612 Chestnut Street PA Supreme Court No. 77063
Camp Hill, PA 17011 Pennsylvania American Water Company
Tel: (717) 731-5698 800 West Hershey Park Drive
Attorney for Plaintiffs Hershey, PA 17033
Tel: (717) 531-3362
Fax: (717) 531-3252
Rhonda Division, Esq. Michael Klein
Stephanie Wimer, Esq. PA Supreme Court o. 23854
PA Public Utility Commission Dewey & LeBoeuf, LLP
P.O. Box 3265 1101 New York Avenue NW
Harrisburg, PA 17105 Washington, D.C. 20005
Respectfully submitted,
FOR THE COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF ENVIRONMENTAL PROTECTION:
cb?
Ann R. Johnston
Assistant Counsel
Supreme Court I.D. No. 204673
Office of Chief Counsel
909 Elmer ton Avenue
Harrisburg, PA 17109
(717) 787-8790
Date: August 10, 2010
NANCY COX and
PUAL GARRETT,
Plaintiffs
vs.
PENNSYLVANIA-AMERICAN WATER
COMPANY,
Defendant
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
10-4504 CIVIL TERM
PRAECIPE FOR ENTRY OF APPEARANCE
TO THE PROTHONOTARY:
Please enter the appearance of Michael D. Klein, Esquire as co-counsel with Seth A.
Mendelsohn, Esquire, on behalf of the Defendant, Pennsylvania-American Water Company.
Dated: August 12, 2010
Respectfully Submitted,
ichael D. Klein, Esquire
PA Supreme Court No. 23854
Dewey & LeBoeuf LLP
1101 New York Avenue NW
Washington, DC 20005-4213
Tel: (202) 346-8154
Fax: (202) 346-8102
c, 0 -:I
c- p
r- 7
?o
s
Certificate of Service
I hereby certify that I have this day served a true and correct copy of the foregoing
document(s) which was filed on behalf of Pennsylvania American Water Company, as
the Defendant, upon the following persons and in the manner indicated below:
SERVICE VIA REGULAR MAIL, POSTAGE PRE-PAID:
Susan K. Pickford, Esq.
2612 Chestnut Street
Camp Hill, PA 17011
Attorney for Plaintiffs
Ann R. Johnston
Pennsylvania Department of
Environmental Protection
South Central Regional Office
909 Elmerton Ave., Third Floor
Harrisburg, PA 17110-8200
Attorneys for the DEP
Rhonda L. Daviston, Esquire
Stephanie M. Wimer, Esquire
PA Public Utility Commission, Law
Bureau
Commonwealth Keystone Building
P.O. Box 3265
Harrisburg, PA 17195-3265
Attorneys for the PUC
Dated: August 12, 2010
Seth A. Mendelsohn, Esquire
Pennsylvania American Water Company
800 West Hershey Park Drive
Hershey, PA 17033
Attorney for the Defendant
Michael D. Klein, Esquire
PA Supreme Court No. 23854
Dewey & LeBoeuf LLP
1101 New York Avenue NW
Washington, DC 20005-4213
Tel: (202) 346-8154
Fax: (202) 346-8102
Attorney for the Defendant
~1LE'D-OFFtC~
4~ THE PROTHONOTARY
2010 QM 8~ 23
NANCY COX, ~
PAUL G~ET~UMBERLANO COUNTY
Plaintiffs PENNSYLVANIA
:IN THE COURT OF COMMON PLEAS
:CUMBERLAND COUNTY, PENNSYLVANIA
Docket No: 10-4504 Civil
v.
PENNSYLVANIA AMERICAN
WATER COMPANY
Defendant
Action in Equity
PLAINTIFFS' RESPONSE TO
PUBLIC UTILITY COMMISSION
MEMORANDUM OF LAW
RE: INTERVENTION
NOW COME, Plaintiffs by and through their attorney and submits the following
Response to Petitioner Public Utility Commission's (PUC) Memorandum of Law:
Following hearing on the issue of intervention on October 25, 2010, Petitioner PUC filed
a Memorandum of Law in support of intervention. In both the testimony and argument at
hearing and in Petitioner's Memorandum, Petitioner points to paragraph 58 (e) of Paintiffs'
Complaint to support its allegation that intervention is necessary to protect a prior ruling by the
Commission and Commonwealth Court. Petitioner cited and provided transcript from a public
input hearing before the PUC evidencing testimony from Paul Garrett, a Plaintiff in the case
before this Court.
However, the testimony of Mr. Garrett and other individuals regarding filtration was only
permitted as to cost of filtration. The anticipated health reasons which prompted Mr. Garrett and
others to seek filtration was not permitted into evidence. The ALJ specifically stated that health
issues were not properly before the PUC.
"Of course you aze concerned about the health effects of chloramine. But
it's DEP, it's not us. We can't do anything about it. I'm sorry. Of course I
would like to heaz you. Of course I would like to let you make your
statements. ..... Again, I know this is hazd but I really have an obligation
to make sure that you don't make statements that are outside the scope of
the proceeding." (TR 180:19-25, 181:1-4) (See attached)
The question of whether the byproducts, which Plaintiffs allege to be highly toxic and harmful,
could be filtered, out were also not permitted. PUC cannot deny jurisdiction at the hearing before
their agency to enforce enumerated sections of their Code and then assert jurisdiction on the
same basis before this court on a completely sepazate issue of common law public nuisance for
which they have no enforcement power.
Certainly, any concerns PUC may have aze disposed of by Plaintiff's stipulation that
Defendant is operating in compliance with all regulations under the Public Utility Code. In the
absence of Defendant's concurrence with such a stipulation, an order in limine would remove
any such testimony regazding compliance under the Public Utility Code. Further, the Defendant
has a strong interest in defending the PUC and Commonwealth ruling. It remains, however, that
the issues before this court on a complaint of common law public nuisance aze sepazate and apart
from any issues before the Commission, inasmuch as they address resulting effects and damages
from a legally operating business and do not address compliance with the Public Utility Code.
At hearing, Defendant, PUC and Petitioner Department of Environmental Protection
(DEP) alleged that Plaintiff is asking this Court to regulate the use of chloramine. Cleazly, that is
not the case. First, it is the unintended consequences, those which aze not regulated by PUC,
DEP or USEPA that aze the subject ofthe instant complaint. Petitioners and Defendant offered
testimony as to the regulated levels of chloramine, not its toxic unregulated byproducts, which
plaintiffs allege result in adverse health effects. Petitioners alleged that a ruling for Plaintiffs
would affect their ability to enforce operating permits now in place. However, the permit
belongs to Defendant water company, not DEP or PUC. It is not only their permit to fully and
vigorously defend, it is also not an enforcement issue as Defendant is currently in and will
continue to be in compliance as they have been since 2003 when the permit was granted.
Defendant did not use chloramine during the first seven years after receiving their permit and did
not suffer non-compliance. The ability of Defendant to operate its business in compliance with
state law and regulations is a matter to be addressed by the Defendant in another forum. That is
not the issue before this court.
Petitioners have alleged that Plaintiffs Complaint is a collateral attack on Defendant's
permit. However, it is Petitioners, not Plaintiffs who assert the issue of Defendant's permit.
Plaintiffs agree that any attack on the permit would be inadmissible in these proceedings as a
collateral attack. The DEP's allegation regarding the permit issue is not only collateral to the
issues before this court, it is a red herring. This court is being asked to evaluate the resulting
effect of a legally operating business to determine if the method and circumstances of that
operation create a nuisance in fact under the common law. These issues do not in any manner
question the permit held by Defendant, the validity or legality of the permitting process of DEP
or the enforcement authority of PUC.
WHEREFORE, Plaintiffs respectfully request this Honorable Court to deny PUC and
DEP's Petitions to Intervene.
Respect ly submitted,
~c ~?~
u an K. Pickfor , sq.
ID #43093
Attorney for Plaintiffs
2612 Chestnut Street
Camp Hill, PA 17011
717-731-5698
180
1
2
3
a
s
6
7
s
to
It
1?
13
14
is
i6
17
I8
19
?Q
~)
~~
?3
?4
25
JUDGE CHESTNUT: Everyone, I knew that it was going
to be a problem having this public input. I was really
against the idea because I knew it would be difficult for
you to understand the point of this. I knew it would be
difficult to establish the proper scope of the proceeding.
I knew it was going to be difficult, but against my better
judgment, Z did agree to it.
I want you to recognize that the point of this isn't
to stifle you. It's to get you to testify to things that we
can consider. Who here wants to have their money wasted by
having a proceeding that the Comnnission can't da anything
about? It's a waste of your money, and 2 hope you
understand that as customers, you're paying for everybody's
expenses here. This isn't free.
MR. BOTTONAR2: We`re investing time, also.
__ _._ _-
JUDGE CHESTNUT: Yes, you are, and I think it's
unfortunate that you`re doing it here instead of devoting
your attention to the agency that can address your concerns.
O€ course you're concerned about the health effects
of chloramine. But it's DLP, it's not us_ We can't do
anything about it. I'm sorry. Of course I would like to
hear you. Of course T would like to let you make your
statements. Do you think I like sitting up here and making
this statement? I don't, believe me. It's very difficult.
But I.7n trying to do the best I can, and I want you
LOM700NWEAt.7H 7tEPORTiNG COMARNY (717) 76f-7750
~Sd~
`s
a
€.
.:~~
~,
3
1$1
) to do the best you can, too. You need to understand that.
2 Now, Ind like to continue. Again, Y know this is hard, but
3 I really have an obligation to make sure that you don't make
4 statements that are outside the scope of the groceeding.
5,` MS. DUSMAN: Your Honor, I'd like to make a
6 statement, please. I'd like permission to make a statement.
?. JUDGE CHESTNUT: Why don't you wait until Y finish?
1 Ms. busman --
{~ MS. DUSMAAT: I'll wait until you finish if you give
;~~ me a chance then.
±t JUDGE CHESTNUT: Ms. busman, no, okay? I don't want
.i2 you to interrupt me. I'm trying to make a statement to the
(3 audience here, and I shouldn't have to tell you that. Good
_~ Lord.
~5 VOICE FROM AUDIENCE: That was reall
~,.- ~ '~ y professional of
16 you .
17 JUDGE CHESTNUT: Yes. Thank you. I appreciate your
is comment.
t9 VOICE FROM AUDIENCE: That was sarcasm_
2t) JI3DGE CHESTNUT: Oh, well, too bad, you know? Too
2t bad.
n The next person on the list is Pam Zeiders.
23 VOICE FROM AUDIENCE: Unprofessional.
za MS. DUSMAN: Your Honor, may I make my brief
~ statement now?
~F~~
} `•: I1 COMMONWEALTH REPORTING COMPANY (T 1T) T67-7950
Certificate of Service
I ,Susan K. Pickford, Esq. do hereby certify that I have this day served a true and correct
copy of the foregoing document upon the following persons and in the manner indicated below:
Ann R. Johnston Esq
PA DEP
909 Elmerton Ave. Third Floor
Harrisburg, PA 17110
(by hand delivery)
Rhonda L. Daviston, Esq.
Stephanie M. Wimer Esq
PA PUC
Commonwealth Keystone Building
P.O. Box 3265
Harrisburg PA 17195
(by hand delivery)
Seth Mendelsohn, Esq.
Michael Klein, Esq
800 West Hershey Park Drive
Hershey, PA 17033
(by hand delivery}
DATE: November 1, 2010 o d Esq.
ID # 43093
Attorney for Plaintiffs
2612 Chestnut Street
Camp Hill PA 17011
Tel: 717-731-5698
S . Pickf r
. , ~,
NANCY COX, IN THE COURT OF COMMON PLEAS OF
PAUL GARRETT, :CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFFS
V. :
PENNSYLVANIA AMERICAN WATER
COMPANY,
DEFENDANT 10-4504 CIVIL TERM
ORDER OF COURT
AND NOW, this ~ day of November, 2010, upon consideration of the
Petitions to Intervene filed by the Pennsylvania Department of Environmental
Protection (DEP) and the Pennsylvania Public Utility Commission (PUC) and a
hearing thereon, we reach the following conclusions: (1) we are satisfied that the
DEP has carried its burden of establishing its legally enforceable interest in the
instant litigation; and, (2) the PUC has not. Accordingly, the Petition to Intervene
filed by the DEP is GRANTED. The Petition to Intervene filed by the PUC is
DENIED, without prejudice to its ability to seek amicus curiae status as this
litigation moves forward.
Susan K. Pickford, Esquire
2612 Chestnut Street
Camp Hill, PA 17011
For Plaintiffs
eth Mendelsohn, Esquire
Michael Klein, Esquire
800 West Hershey Park Drive
Hershey, PA 17033
For Defendant
By the Court,
Albe H. Ma and, J.
;,. ~ ~a
C .-a ~;
~s ._
3 ~
= ~
`L"
,_.
'_~,
~-. ~ _:, r~
.~ -
:r. ~-,-,
~ c=~
s> ~ ~` ~ rn
~~ ~
-~ -- -<
~---,
nn R. Johnston, Esquire
PA DEP
909 Elmerton Avenue Third Floor
Harrisburg, PA 17110
For Pennsylvania Department of Environmental Protection
~onda L. Daviston, Esquire
Stephanie M. Wimer, Esquire
PA PUC
Commonwealth Keystone Building
PO Box 3265
Harrisburg, PA 17195
For Pennsylvania Public Utility Commission
saa
l_:C~
~~£S rri~t l~cl_.~
1113 ~1~
~~
NANCY COX and
PAUL GARRETT,
Plaintiffs
VS.
PENNSYLVANIA-AMERICAN WATER
COMPANY,
Defendant
COMMONWEALTH OF
PENNSYLVANIA,
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Intervenor.
COURT OF COMMON PLEAS=
CUMBERLAND COUNTY
10-4504 CIVIL TERM
r,, r?
71-
INJ
NOTICE TO PLEAD
To the Plaintiffs, you are hereby notified that pursuant to Pa. R. C.P. Nos. 1026, 1028 and
1029, you must file a written response to these preliminary objections within twenty days
from service upon you, or a judgment may be entered against you.
Respectfully submitted,
FOR THE COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF ENVIRONMENTAL
PROTECTION:
Ann R. Johnston
Assistant Counsel
Supreme Court I.D. No. 204673
Office of Chief Counsel
909 Elmer ton Avenue
Harrisburg, PA 17109
(717) 787-8790
Date: November 22, 2010
COURT OF COMMON PLEAS - CUMBERLAND COUNTY
NANCY COX
PAUL GARRETT
Plaintiffs,
NO. 104504 Civil
V.
PENNSYLVANIA AMERICAN WATER
COMPANY
Defendant,
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT OF
ENVIRONMENTAL PROTECTION
Intervenor.
COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF
ENVRIONMENTAL PROTECTON'S PRELIMINARY OBJECTIONS TO
PLAINTIFFS' COMPLAINT
Pursuant to the Pennsylvania Rules of Civil Procedure No. 1028(a)(1), (3), (4)
and (7), the Commonwealth of Pennsylvania, Department of Environmental Protection
("Department") files its preliminary objections to the Plaintiffs' Complaint and requests
that this Court dismiss the Complaint for the following reasons:
INTRODUCTION
On July 8, 2010, Plaintiffs filed a Motion for an Emergency Injunction and
a Complaint alleging that Defendant Pennsylvania American Water Company's
("PAWC") lawful use of monochloramine as a disinfectant in water supplied to the
public, at concentrations allowed by the United States Environmental Protection Agency
("US EPA") and the Department and enforced by the Department, constitutes a "public
nuisance."
2. On July 9, 2010, the Honorable Judge Masland denied Plaintiffs'
Emergency Motion on a number of grounds, including (1) that the Emergency Motion
clearly was an impermissible collateral attack on DEP permitting decisions and therefore
lacked merit and (2) that Plaintiffs failed to meet the evidentiary burden to justify
issuance of such extreme relief.
3. On July 9, 2010, PAWC filed Preliminary Objections to Plaintiffs'
Complaint and a motion to dismiss.
4. On July 9, 2010, the Department filed a motion to intervene in this matter.
5. On October 25, 2010, this Court held a full hearing on the Department's
motion to intervene.
6. On November 2, 2010, this Court granted the Department's motion to
intervene.
7. The Department herein files preliminary objections to Plaintiffs complaint
pursuant to Pa. R.C.P. Nos. 1028(a)(1); (a)(3); a(4), and (a)(7).
1. PRELIMINARY OBJECTION FOR LACK OF SUBJECT MATTER
JURISDICTION PURSUANT TO PA. R.C.P. 1028(a)(1): PENNSYLVANIA
ENVIRONMENTAL HEARING BOARD HAS EXCLUSIVE
JURISDICTION OVER FINAL DEPARTMENT ACTIONS (ALL
COUNTS)
8. The Court lacks subject matter jurisdiction over this challenge to the
Department's SDWA permits issued to Pennsylvania American Water Company
("PAWL").
2
9. Over a series of years, the Department issued permits pursuant to the Safe
Drinking Water Act ("SDWA"), 35 P. S. §§ 721.1 et seq., to PAWC authorizing, inter
alia, the use of a disinfectant, chloramines, at two of its water treatment plants in
Pennsylvania. Pickford v. Dep't of EnvtL Prot., 967 A.2d 414 (Pa. Cmwlth. 2008).
(Complaint, ¶ 8.)
10. In the instant Complaint, Plaintiffs are challenging PAWC's use of the
disinfectant, chloramines, as authorized by the Department in the above mentioned
SDWA permits; Plaintiffs allege that the authorized use of chloramines will pose a threat
to public health. (Complaint, all counts.)
11. These SDWA permits were final, appealable actions. Id., at 419.
12. The Environmental Hearing Board (EHB) is the agency with the duty and
authority to hold hearings and issue adjudications on the actions such as the Department's
issuance of the SDWA permits issued to PAWC. See Sections 4(a) and 4(c) of the
Environmental Hearing Board Act, Act of July 31, 1988, P.L. 530, as amended, 35 P.S.
§§ 7514(a)(c).
13. Attorney Pickford, as Plaintiff, unsuccessfully attempted to challenge
these permits with the EHB. The EHB found her challenges to be untimely. The
Commonwealth Court agreed with the EHB on this issue when Pickford unsuccessfully
appealed the EHB decision, as did the Pennsylvania Supreme Court, in refusing to take
her appeal. Pickford v. Dep't of Envtl. Prot., 967 A.2d 414 (Pa. Cmwlth. 2009);
Pickford v. Dep't of EnvtL Prot., 982 A.2d 67 (2009).
3
14. As a result of the Plaintiffs' failure to appeal the Department's permits to
the EHB in a timely fashion, the permits are final actions and are no longer subject to
attack in later proceedings such as the instant matter. Id.
15. Where, as here, a specific statute such as the Administrative Code, the
EHB Act, the Judicial Code and the Administrative Agency Law provide a specific
method of appeal from a decision of an administrative agency, the procedure required by
that remedy must be followed to the exclusion of all others.
16. ' In addition, "equity will not inquire into a controversy where to do so
would obviate a constitutionally valid statutory exclusive procedure enacted by the
legislature." Aitkenhead v. West View Borough, 442 A.2d 364, 365 (Pa. Cmwlth. 1982).
WHEREFORE, the Department respectfully requests pursuant to Pa.
R.C.P. 1028(a)(1). that this Court enter an order dismissing Plaintiffs' Complaint
as this Court does not have jurisdiction over a challenge to the Department's final
actions.
II. PRELIMINARY OBJECTION FOR LACK OF SUBJECT MATTER
JURISDICTION PURSUANT TO PA. R.C.P. 1028(a)(1): THE
ENVIRONMENTAL HEARING BOARD HAS EXCLUSIVE JURISDICTION
OVER CHALLENGES TO DEPARTMENT REGULATIONS.
17. The Court lacks subject matter jurisdiction over this challenge to the
Department's SDWA regulatory standards and regulatory process.
18. The Plaintiffs are attempting to challenge the safety of the SDWA
regulation of the disinfectant, chloramines and the SDWA regulation of disinfectant
byproducts. (Complaint, all counts)
4
19. However, the Environmental Quality Board ("EQB") and DEP are the
Pennsylvania agencies with the exclusive authority for establishing and enforcing health-
based drinking water standards for public water supplies. SDWA, 35 P. S. §§ 721.1 et
seq.
20. The EQB has adopted the health-based standards set by the US EPA for
chloramines and for disinfectant byproducts. 25 Pa. Code §§ 109.202(f), 109.202(g). 1
21. Challenges to the final actions of the EQB must be brought in the EHB.
35 P.S. § 7514. Under 42 Pa. C.S. § 763(a)(1), the Commonwealth Court is granted
exclusive jurisdiction of appeals from final orders of Commonwealth agencies, including
appeals from the EHB. The Pennsylvania Supreme Court has jurisdiction over appeals
from the Commonwealth Court. 42 Pa. C.S. § 723
22. Where, as here, a specific statute such as the Administrative Code, the
EHB Act, the Judicial Code and the Administrative Agency Law provide a specific
method of appeal from a decision of an administrative agency, the procedure required by
that remedy must be followed to the exclusion of all others.
23. Plaintiffs in their complaint fail to allege that they appealed the EQB's
establishment of the SDWA standards for chloramines
24. Plaintiffs' failure to exhaust their administrative remedies in appealing the
EQB standards to the EHB deprives this Court of jurisdiction to hear this matter.
The drinking water standard for chloramines is 4 parts per million (ppm) measured as an annual average.
More information on water utility use of chloramines is available at
htty://www.2Ra.eov/safewater/disinfection/index.html . Information on the Stage 2 DBPR is available at
htti)://www.gpa.gov/safewater/disinfection/stage2/. More information on EPA's standard setting process
may be found at: httv://www.ena.gov/OGWDW/standard/settine.html.
5
WHEREFORE, the Department respectfully requests that this Court enter
an order dismissing Plaintiffs' Complaint as this Court does not have subject
matter jurisdiction to a challenge of establish health based disinfectant levels for
either chloramines or the byproducts of chloramine disinfection pursuant to Pa.
R.C.P. 1028(a)(1).
III. PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER:
FAILURE TO ALLEGE FACTS WHICH ESTABLISH A CAUSE OF
ACTION IN NUISANCE. (ALL COUNTS).
25. The Plaintiffs' complaint is legally insufficient in that it does not allege a
violation of the SDWA.
26. Section 12 of the SDWA, 35 P.S. § 721.12, provides the elements for a
cause of action in public nuisance: any violation of the SDWA constitutes a public
nuisance and any court of competent jurisdiction has jurisdiction over these actions.
27. The Plaintiffs' complaint does not allege all the elements of a cause of
action under Section 12 of the SDWA as they fail to allege that PAWC is in violation of
the SDWA. To the contrary, the Plaintiffs are willing to stipulate that PAWC is not in
violation of the SDWA. (October 25 Hearing Transcript.)
28. Thus, Plaintiffs' complaint does not aver facts sufficient to establish a
cause of action for a public nuisance claim pursuant to the SDWA.
WHEREFORE, the Department respectfully requests that this Court enter
an order dismissing Plaintiffs' Complaint pursuant to Pa. R.C.P. 1028(a)(4) as the
Plaintiffs have failed to state a legally sufficient claim for a cause of action in
public nuisance as specified by the SDWA.
IV. PRELIMINARY OBJECTION FOR LACK OF JURISDICTION
PURSUANT TO PA. R.C.P. 1028(a)(1) AND (a)(4): THE SDWA
6
DISPLACES PLAINTIFFS' COMMON LAW PUBLIC NUISANCE
CLAIM.
29. The Court lacks subject matter jurisdiction over this challenge to the
Department's SDWA disinfectant standard as the SDWA displaces the common law tort
remedy as to this specific common law challenge.
30. Both the United States Environmental Protection Agency ("US EPA") and
the Department have established a pervasive regulatory scheme under the SDWA to
regulate disinfectants. See
httt):Hwater.gpa.gov/lawsregs/rulesregs/sdwa/mdbp/st2dis.cfin).
31. Disinfectants are an essential element of drinking water treatment because
of the barrier they provide agairist the short-term health risk caused by harmful
waterborne microbial pathogens. Id.
32. Both the US EPA and the Department have developed and continue to
develop rules designed to ensure adequate protection from waterborne pathogens but also
to mitigate the potential health hazards posed by disinfection byproducts. z (See Stage 2
Disinfection Byproducts ("DBP") Rule as well as the accompanying Long Term 2
Enhanced Surface Water Treatment Rule at
http://water.epa.gov/lawsregs/rulesregs/sdwa/mdbp/st2dis.cftn.) 3
2 The US EPA's current regulatory list of contaminants being considered for regulation includes
disinfectant byproducts and specifically includes hydrazine and NDMA (N-nitrosodimethylamine), both of
which are disinfectant byproducts that Plaintiffs specifically point to in their complaint. (Complaint, ¶ 20).
See Contaminant Candidate List, Three. h_ qp://www.eya. ovg /fedrgstr/EPA-WATER/2009/October/D"-
08/w24287.pdf
3 The US SDWA requires EPA to periodically develop a list of candidate contaminants that are known or
anticipated to occur in drinking water and have the potential to impact human health. On a five-year cycle,
they must decide which, if any, of those candidate contaminants pose a significant public health risk at the
national scale and which, if any, of those risks can be effectively reduced by regulating the contaminant(s).
Once the US EPA decides to regulate a contaminant, it must do so within a specific period of time.
hM:Hwater.gRa.gov/scitech/drinkingwater/dws/cci/index.cfrn
7
33. In addition, the US EPA and the Department have taken steps to limit the
formation of all disinfectant byproducts.4
34. While the Department does not herein aver that the SDWA displaces or
preempts all common law public nuisance claims, the Department avers that the SDWA
does displace the Plaintiffs' common law public nuisance cause of action as Plaintiffs'
are directly challenging the Department's regulation of a disinfectant, an area over which
the SDWA and the Department have sufficiently comprehensive regulation so as to
preclude the Plaintiffs' complaint.
WHEREFORE, the Department respectfully requests that this Court enter an
order dismissing Plaintiffs' Complaint pursuant to Pa. R.C.P. 1028(a)(1) as this
Court does not have jurisdiction over this common law nuisance challenge to
disinfections because the SDWA precludes and displaces such a challenge.
V. PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER
PURSUANT TO PA. R.C.P. 1028(a)(3) and (a)(4): PLAINTIFFS FAIL TO
AVER SUFFICIENT FACTS TO STATE A LEGALLY SUFFICIENT
CLAIM IN COMMON LAW PUBLIC NUISANCE. (ALL COUNTS)
35. Even if the Court determines it has jurisdiction over this subject matter,
the Plaintiffs have not averred sufficient facts to state a legally sufficient claim in
common law public nuisance.
36. To state a claim in public nuisance in Pennsylvania, the Plaintiff must
show an unreasonable interference with a public right and that they have suffered a
4 Because the mechanism of formation of the disinfectant byproducts THMs and HAAs is similar to that of
many other DBPs, compliance with the MCLs for THMs and HAAS will have the concurrent benefit of
reducing the formation of many other DBPs. Also, US EPA has adopted requirements for reducing the
amount of organic material in water. By reducing the concentration of the organic material (as measured
by the Total Organic Carbon (TOC) concentration) in the finished water, there is less material that can
combine with any disinfectants and the DBP formation potential is thus reduced.
8
special harm different from others of the public. Duquesne Light v. Pennsylvania
American Water Co., 850 A. 2d 701, 704 (Pa. Super. 2004).
37. On the signature page of their Complaint, Plaintiffs request this Court to
prohibit an "anticipated" nuisance. (See Complaint, signature page).
38. The Plaintiffs do not allege any special harms that they have suffered.
39. Instead, Plaintiffs are stating fears as to whether a potential harm may
occur rather than averring facts about special harms that have actually occurred.
40. In addition, Plaintiffs have not stated facts sufficient to prove that the
conduct alleged to be a nuisance is "unreasonable."
41. PAWC's conduct in utilizing the disinfectant is both fully legal and
specifically authorized by the Department. Such conduct is not unreasonable. Diess v.
Pennsylvania Dep't of Transp., 935 A. 2d 895, 920 (Pa. Cmwlth. 2007).
42. Thus, the Plaintiffs' complaint fails to aver facts legally sufficient to state
a claim of public nuisance.
WHEREFORE, the Department respectfully requests that this Court
sustain its preliminary objection brought pursuant to Pa. R.C.P. 1028(a)(3) and (4)
and dismiss the Plaintiffs' complaint.
CONCLUSION
WHEREFORE, for the aforestated reasons, the Department respectfully requests
that its preliminary objections be granted and that Plaintiffs' complaint be dismissed.
Respectfully submitted,
9
FOR THE COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF ENVIRONMENTAL PROTECTION:
Ann R. Johnston
Assistant Counsel
Supreme Court I.D. No. 204673
Office of Chief Counsel
909 Elmer ton Avenue
Harrisburg, PA 17109
(717) 787-8790
Date: //-2.2- -16
10
CERTIFICATE OF SERVICE
I hereby certify that I have this day served a true and correct copy of the foregoing
document(s) which was filed on behalf of Commonwealth of Pennsylvania, Department
of Environmental Protection, as Intervenor, upon the following persons and in the manner
indicated below:
SERVICE VIA REGULAR MAIL, POSTAGE PRE-PAID
Susan K. Pickford, Esq. Seth A. Mendelsohn, Esq.
2612 Chestnut Street Pennsylvania American Water Company
Camp Hill, PA 17011 800 West Hershey Park Drive
Hershey, PA 17033
Michael D. Klein, Esq.
Dewey & LeBoeuf LLP
1101 New York Avenue NW
Washington, DC 20005-4213
Respectfully submitted,
FOR THE COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF ENVIRONMENTAL
PROTECTION:
ax-?? -.0
P7/K?
Ann R. Johnston
Assistant Couns
Supreme Court I.D. No. 204673
Office of Chief Counsel
909 Elmer ton Avenue
Harrisburg, PA 17109
(717) 787-8790
Date: November 22, 2010
V
NANCY COX and
PAUL GARRETT,
Plaintiffs
vs.
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
PENNSYLVANIA-AMERICAN WATER
COMPANY,
Defendant
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Intervenor.
10-4504 CIVIL TERM
PRAECIPE FOR LISTING CASE FOR
ARGUMENT
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
mug, ?_?- ? =
- t
Pursuant to C.C.R.P. Rule 1028(c), please list the following matters in the above-captioned
proceeding for the next Argument Court:
1. The matters to be argued are Commonwealth of Pennsylvania Department of
Environmental Protection's preliminary objections to the complaint.
2. Counsel arguing the case will be as follows
(a) For Intervenor:
Ann Johnston, Esquire
Commonwealth of Pennsylvania,
Department of Environmental Protection
909 Elmerton Ave.
Harrisburg, PA 17011
(b) For Plaintiffs:
Susan K. Pickford, Esq.
2612 Chestnut Street
Camp Hill, PA 17011
3. I will notify all parties in writing within two days that this case has been listed for
argument.
4. The next Argument Court date is December 15, 2010.
Respectfully submitted,
FOR THE COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF ENVIRONMENTAL PROTECTION:
oklllv?-
Anjrk. Johnst n
Assistant Coun
Supreme Court I.D. No. 204673
Office of Chief Counsel
909 Elmer ton Avenue
Harrisburg, PA 17109
(717) 787-8790
Date: November 22, 2010
CERTIFICATE OF SERVICE
I hereby certify that I have this day served a true and correct copy of the foregoing
document(s) which was filed on behalf of Commonwealth of Pennsylvania, Department
of Environmental Protection, as Intervenor, upon the following persons and in the manner
indicated below:
SERVICE VIA REGULAR MAIL. POSTAGE PRE-PAID
Susan K. Pickford, Esq. Seth A. Mendelsohn, Esq.
2612 Chestnut Street Pennsylvania American Water Company
Camp Hill, PA 17011 800 West Hershey Park Drive
Hershey, PA 17033
Michael D. Klein, Esq.
Dewey & LeBoeuf LLP
1101 New York Avenue NW
Washington, DC 20005-4213
Respectfully submitted,
FOR THE COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF ENVIRONMENTAL
PROTECTION:
6?? "" ?-o
Ann R. Johnston( I
Assistant Couns
Supreme Court I.D. No. 204673
Office of Chief Counsel
909 Elmer ton Avenue
Harrisburg, PA 17109
(717) 787-8790
Date: November 22, 2010
PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and submitted in triplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next CA
Argument Court.)
CAPTION OF CASE
(entire caption must be stated in full)
Nancy Cox and Paul Garrett
vs.
Pennsylvania-American Water Company
------------------------------------------ G a >
Z?'t rn
cAt-
MC)
ZO Z z-
?'.ZC' ? O
10-4504 Civil -i t11
No. Xermw '
1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to
complaint, etc.):
1- Dft's Prelim Obis; 2- Dft's Mtn to Dismiss & Prelim Obis to Plfs Answer to Dft's Prelim Obis
2. Identify all counsel who will argue cases:
(a) for plaintiffs:
Susan Pickford, Esq., 2612 Chestnut Street, Camp Hill, PA 17011
(Name and Address)
(b) for defendants:
Michael Klein, Esq., Dewey & LeBoeuf, 1101 New York Avenue NW, Washington, DC 20005
(Name and Address)
3. 1 will notify all parties in writing within two days that this case has been listed for
argument. Yes.
4. Argument Court Date: December 15, 2010
Si nature
Michael D. Klein
Date: November 22, 2010
Print your name
Pennsylvania-American Water Company
Attorney for
INSTRUCTIONS:
1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR
(not the Prothonotary) before argument.
2. The moving party shall file and serve their brief 12 days prior to argument.
3. The responding party shall file their brief 5 days prior to argument.
4. If argument is continued new briefs must be filed with the COURT
ADMINISTRATOR (not the Prothonotary) after the case is relisted.
Certificate of Service
I hereby certify that I have this day served a true and correct copy of the foregoing
document(s) which was filed on behalf of Pennsylvania American Water Company, as
the Defendant, upon the following persons and in the manner indicated below:
SERVICE VIA REGULAR MAIL, POSTAGE PRE-PAID:
Susan K. Pickford, Esq.
2612 Chestnut Street
Camp Hill, PA 17011
Attorney for Plaintiffs
Ann R. Johnston
Pennsylvania Department of
Environmental Protection
South Central Regional Office
909 Elmerton Ave., Third Floor
Harrisburg, PA 17110-8200
Attorney for the DEP
Dated: November 22, 2010 1? ,
Michael D. Klein, Esquire
PA Supreme Court No. 23854
Dewey & LeBoeuf LLP
1101 New York Avenue NW
Washington, DC 20005-4213
Tel: (202) 346-8154
Fax: (202) 346-8102
Attorneys for Defendant
NANCY COX IN THE COURT OF COMMON PLEAS OF
PAUL GARRETT CMMERLAND COUNTY, PENNSYLVANIA
Plaintiffs
C7 na
c= 7D
?p1
VS : NO. 104504 CIVIL
? z
:rn
rn rn
PENNSYLVANIA AMERICAN ;' rn
WATER COMPANY ,`.. o
PLAINTIFFS' MOTION TO CONTINUE C) -n
ARGUMENT ON PRELIMINARY OBJECTIONS C= r*J C°,
r?
NOW COME Plaintiffs through their attorney, Susan K. Pickford , Esq., and
respectfully request this Honorable Court to continue the Argument set for December 15,
2010 in the above captioned matter and sets forth the following in support thereof:
1) Plaintiffs were served with additional Preliminary Objections by Intervenor
Department of Environmental Resources on or about November 22, 2010.
2) Defendant filed and served a Praecipe to list this case for Argument on their
Preliminary Objections on November 22, 2010.
3) Defendant filed a lengthy brief in support on December 1, 2010.
4) Plaintiffs have not yet received a brief from Intervenors.
5) Intervenors filed a Praecipe to List their Objections for Argument the same day
the Preliminary Objections were filed. Plaintiffs have 20 days to file an Answer to
those pleadings.
6) Counsel for Plaintiffs is scheduled to pick a jury in another matter in Adams
County on December 6, 2010 and will be trying the case during the trial term of
December 6th through December 17th on a one hour notice.
7) Counsel for Plaintiffs is requesting a continuance of the December 15th scheduled
Argument in order to have time to prepare the Answer to Intervenor's Preliminary
Objections as well as briefs addressing both PAWC and DEP Preliminary
Objections.
8) Counsel requests a continuance to the January 12, 2011 Argument list.
9) Counsel has notified the attorneys for DEP and PAWC . DEP has indicated that
they will take no position on this request, neither concurring nor opposing.
PAWC concurs with Plaintiffs request.
WHEREFORE, Defendant, respectfully requests this Honorable Court to
continue this matter to the January Argument.
y
December 3, 2010
,Wusan K. Pickford, Ifiq. ID
Attorney for Plaintiffs
2612 Chestnut Street L?
Camp Hill, PA 17011
(717) 731-5698
NANCY COX
PAUL GARRETT
Plaintiffs
VS
PENNSYLVANIA AMERICAN
WATER COMPANY
IN THE COURT OF COMMON PLEAS OF
CR BERLAND COUNTY, PENNSYLVANIA
NO. 104504 CIVIL
I, Susan K. Pickford, Esq., hereby certify that on this date I personally served a copy of
the attached Motion to Continue in the above captioned matter upon the parties and in the
manner listed below.
BY FIRST CLASS MAIL:
Ann Johnston, Esq.
DEP
909 Elmerton Avenue
Harrisburg, PA 17110
Michael Kline, Esq
Dewey and LeBoeuf
1101 New York Ave, NW
Washington, DC 20005
J+p-3-??068
December 3, 2010
;Respectfu submitted,
A ?
n K. Pickfor Esq.
Attorney for Plaintiffs li
2612 Chestnut Street
Camp Hill, PA 17011
(717) 731-5698
13093
t
t y
NANCY COX
PAUL GARRETT
Plaintiffs
VS
PENNSYLVANIA AMERICAN
WATER COMPANY
IN THE COURT OF COMMON PLEAS OF
CIlVIBERLAND COUNTY, PENNSYLVANIA
NO. 104504 CIVIL
ORDER
AND NOW, this day o6-ek t A*-, 2010 upon consideration of the
Motion to Continue in the above capOoned matt this se is continj1ed to the Ar mend
List of lanuary,,k7,
DATED:
DISTRIBUTION TO:
usan K. Pickford, Esq.
2612 Chestnut Street
Camp Hill, PA 17011
n Johnston, Esq.
DEP
909 Elmerton Avenue
Harrisburg, PA 17110
---Wichael Kline, Esq
Dewey and LeBoeuf
1101 New York Ave, NW
Washington, DC 20005
Court Administration -
C OP I-es rna t Id-
I
J.
l7
c N
C= C}
-r'
cl
C-?
r
u o
? a
C:) -r,
2; c ? o ?
NANCY COX, :IN THE COURT OF COMMON PLEAS
PAUL GARRETT, :CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs c ? 7
:Docket No: 10-4504 Civil --0 Z
w
V. ` rn ? rn
c-? --M
PENNSYLVANIA AMERICAN : Action in Equity
r
c3
WATER COMPAN
Y 48
Defendant .
ZE: m
PLAINTIFFS' ANSWER TO DEPARTMENT OF ENVIRONMENTAL PROTECTION 'S`
PRELIMINARY OBJECTIONS TO PLAINTIIM' COMPLAINT
Now come Plaintiffs in the above captioned matter and file these Answers to Department
Of Environmental Protection's ("DEP") Preliminary Objections to Plaintiffs' Complaint:
1. ADMITTED.
2. ADMITTED in part and DENIED in part. The Order of the Court regarding Plaintiffs'
Emergency Motion for Special and Preliminary Injunctive Relief denied Plaintiffs motion
for emergency relief (without hearing or argument) stating that Plaintiffs "failed to
demonstrate the necessity of such injunctive relief... and failed to demonstrate the
likelihood of any immediate and irreparable harm." While the Court opined that
Plaintiffs' Complaint was a collateral attack on DEP permitting decisions, it was not a
stated ground in the Order of the Court.
3. ADMITTED.
4. ADMITTED
5. ADMITTED
6. ADMITTED
7. Intervenor does not state facts for which a response is required.
L
8. DENIED. Intervenor DEP states an opinion and conclusion of law for which no
response is required. To the extent that the court deems this paragraph at statement of fact
requiring response, Plaintiffs DENY that the complaint is a challenge to the permit issued
by DEP. Plaintiffs acknowledge the issuance of a legal permit. A cause of action in
common law public nuisance does not require an element of proof of the existence or
legality of a permit. The fact that Defendant possesses a valid permit under the Safe
Drinking Water Act is irrelevant to the cause of action.
9. ADMITTED in part and DENIED in part. The facts stated in the paragraph are admitted,
however it is denied that these facts are relevant to the cause of action as common law
public nuisance does not require proof of a lack of or faulty permit.
10. ADMITTED.
11. ADMITTED in part and DENIED in part.. The facts stated in the paragraph are
admitted, however it is denied that these facts are relevant: to the cause of action as
common law public nuisance does not require proof of a lack of or faulty permit.
12. Intervenor does not state facts for which a response is required.
13. ADMITTED in part and DENIED in part. The allegation is admitted as to the EHB and
Commonwealth Court. It is however denied that the Pennsylvania Supreme Court
concurred. To the contrary, the Pennsylvania Supreme Court declined to hear the case
and therefore did not consider the merits of the case.
2
14. To the extent that this allegation is deemed relevant to the cause of action, it is
ADMITTED. Plaintiffs DENY, however, that the allegation has any relevance to the
instant action.
15. ADMITTED in part and DENIED in part. It is admitted that, if the instant Complaint
addressed issues related to the permit issued by DEP and possessed by Defendant, the
allegations would be true. However, it is denied that the Complaint in the above
captioned matter raises issues concerning the application, notice or issuance of a permit.
Once again, the cause of action of common law public nuisance does not include an
element concerning the existence of permits nor is possession of a permit a defense to
public nuisance.
16. Intervenor does not state fact to which a response is required but rather cites irrelevant
case law supporting the non-issue of litigating permit challenges.
WHEREFORE, inasmuch as Plaintiffs do not challenge the DEP's actions regarding
Defendant's permit, Intervenors have failed to assert facts sufficient to grant the relief requested
and Plaintiffs', therefore, respectfully request this Honorable Court dismiss Intervenor's
Preliminary Objections.
U.
17. DENIED. Intervenor misstates the nature of Plaintiffs' Complaint. Plaintiffs do not
challenge DEPs regulatory standards or regulatory process. Plaintiffs have raised an
action in common law public nuisance. A common law action in public nuisance may
stand where a company is operating legally within the bounds of state law and regulation
and within the confines of legally obtained operating permits yet creates a nuisance in
fact as a result of that operation.
18. DENIED. Intervenor misstates the nature of Plaintiffs' Complaint. Plaintiffs do not
challenge the setting of SDWA standards or regulations. Plaintiffs have raised an action
in common law public nuisance. A common law action in public nuisance may stand
where a company is operating legally within the bounds of state law and regulation and
within the confines of legally obtained operating permits yet creates a nuisance in fact as
a result of that operation.
19. ADMITTED and DENIED. The facts stated are admitted. It is denied that the allegation
has any relevance to the instant action for reasons repeatedly stated in this Answer.
20. ADMITTED and DENIED. The facts stated are admitted. It is denied that the allegation
has any relevance to the instant action for reasons repeatedly stated in this Answer.
21. ADMITTED. By way of further response, while Intervenor presents an accurate rendition
of statutory procedural law, the statement, not an allegation of fact, is wholly irrelevant
to the cause of action before this court.
22. DENIED. Intervenor simply repeats paragraph 15 and again states no averment of fact for
which a response is required. To the extent that the Court deems this an allegation of fact,
Plaintiffs respond as follows: Complaint states a cause of action for a common law
nuisance, the elements of which do not involve issues subject to administrative remedy.
23. ADMITTED AND DENIED. It is admitted that Plaintiffs' Complaint does not address
an appeal to EQB's establishment of SDWA standards. It is denied that this fact has any
relevance to the instant case. Plaintiffs cannot be any more clear that their action in
public nuisance does not challenge the setting of SDWA standards.
4
24. DENIED. Plaintiffs' are not required to exhaust administrative remedies through appeal
to the EQB because Plaintiffs do not challenge the SDWA standards.
WHEREFORE, inasmuch as Plaintiffs do not herein challenge the establishment of disinfectant
levels or standards, Intervenors have failed to assert facts sufficient to grant the relief requested
and Plaintiffs', therefore, respectfully request this Honorable Court dismiss Intervenor's
Preliminary Objections.
III.
25. DENIED. Violation of SDWA, or any other law, is not an element of the cause of action
of public nuisance. A public nuisance claim requires only the proof that Defendant's
action unreasonably interferes with the public health, safety, welfare, or morals.
26. ADMITTED and DENIED. Where a violation of the SDWA is alleged, the allegation by
Intervenor is admitted, however, Plaintiffs do not assert a violation of SDWA and
therefore Section 12 is not applicable. Therefore, Plaintiffs deny this allegation as
irrelevant to the instant cause of action.
27. ADMITTED and DENIED. Where a violation of the SDWA is alleged, the allegation by
Intervenor is admitted, however, Plaintiffs do not assert a violation of SDWA and
therefore Section 12 is not applicable. Therefore, Plaintiffs deny this allegation as
irrelevant to the instant cause of action.
28. DENIED. Plaintiffs Complaint set forth averments of facts addressing each element of
the cause of action of common law public nuisance.
WHEREFORE, inasmuch as Plaintiffs do not allege a violation of the SDWA, Section 12 does
not apply to this action. Intervenors have failed to assert facts sufficient to grant the relief
requested and Plaintiffs', therefore, respectfully request this Honorable Court dismiss
Intervenor's Preliminary Objections.
IV.
29. DENIED. On the contrary, the SDWA displaces a nuisance action only where a violation
of the SDWA is alleged. The statute states that a violation of SDWA constitutes a public
nuisance. It does not follow that all nuisances regarding water constitute violations of
SDWA.
30. ADMITTED and DENIED. Plaintiffs admit the alleged facts, however, it is denied once
again, that Plaintiffs are challenging the regulatory scheme of USEPA and SDWA in the
instant action.
31. ADMITTED and DENIED. Plaintiffs admit the alleged facts, however it is denied that
the allegation has any relevance to the instant action since Plaintiffs are not alleging the
cessation of water disinfectant.
32. ADMITTED and DENIED. By way of further response, while Intervenor sets forth
accurate statements of the mission of the USEPA and DEP, the allegation is wholly
irrelevant to the cause of action before this court. Regardless of USEPA and DEP
intentions, regulations, risk assessments and rules, nuisance is based upon resulting
damage of a legally operating business.
33. DENIED. USEPA and DEP do not currently regulate or monitor the byproducts of
chloramine. By way of further answer, highly toxic byproducts of chloramine know as
NDMA,, classified by EPA as a `probable human carcinogen' of chloramine are being
6
measured in chloraminated areas yet are not regulated by EPA or DEP. By their
averment in this paragraph, DEP acknowledges that current efforts only "limit" the
formation of byproducts, therefore formation at a level still occurs and with it a resulting
public nuisance. The question to be determined by trial is. whether Defendant's actions
unreasonably interfere with the public health, safety, welfare, or morals.
34. DENIED. DEP herein acknowledges that not all public nuisance claims are preempted by
the SDWA. DEP incorrectly insists that Plaintiffs challenge DEP regulations of a
disinfectant. Plaintiffs do not challenge the regulations. Plaintiffs seek relief for the
unreasonable interference caused by Defendant's manner of conducting business.
WHEREFORE, inasmuch as Plaintiffs do not allege a violation of the SDWA nor do they
challenge EPA or DEP regulations, the SDWA does not preclude this common law action.
Intervenors have failed to assert facts sufficient to grant the relief requested and Plaintiffs',
therefore, respectfully request this Honorable Court dismiss Intervenor's Preliminary Objections.
V.
35. DENIED. Intervenors state an opinion and conclusion of law for which no response is
required.
36. ADMITTED. By way of further answer, Plaintiffs have set forth facts alleging that the
interference is unreasonable in paragraphs 11-13 and 34-40. Whether these facts are
sufficient to prevail is a matter for the trial court after hearing testimony and evidence.
37. ADMITTED. By way of further answer, Pennsylvania law provides for a claim of
anticipated nuisance. In Pennsylvania Co., etc., v. Sun Co., 290 Pa. 404,138 A. 909.
Kelly v City of Philadelphia, 382 Pa. 459, 115 A. 2d 238.
7
38. DENIED. Plaintiffs have alleged an anticipated nuisance in fact. Plaintiffs alleged
specific threatened and anticipated injury in paragraph 1,2, 4, 19-25, 30,31,40,41, and 58
of the Complaint. In an anticipated nuisance it is not required to alleged actual present
harm. Kelly v City of Philadelphia, 382 Pa.459, 115 A.2d 238.
39. DENIED. DENIED. Plaintiffs have alleged an anticipated nuisance in fact. Plaintiffs
alleged specific anticipated injury in paragraph 1,2 and 4 of the Complaint. In an
anticipated nuisance it is not required to alleged actual present harm. Kelly v City of
Philadelphia, 382 Pa.459, 115 A.2d 238
40. DENIED. Plaintiffs have clearly stated facts sufficient to prove the conduct is
unreasonable in paragraphs 11-13 and 34-40 of the Complaint wherein Plaintiffs allege
that the use of chloramine is not necessary to meet the goals asserted for its use by
Defendant. The Complaint specifically sets forth the consequences, measured in human
suffering and environmental and infrastructure damage that render the use of chloramine
absent a compelling public need, unreasonable.
41. DENIED. By way of further answer, the very nature of the common law action of public
nuisance proposes that a legally operating, legally permitted business may nevertheless
create a nuisance in fact by virtue of the manner in which it operates. Simply because it
is legally operating, does not render the end result "reasonable" as defined by law.
42. DENIED. Intervenor states an opinion and legal conclusion for which no response is
required.
WHEREFORE Plaintiffs respectfully request this Honorable Court dismiss Intervenor's
Preliminary objections and allow this matter to proceed.
Resp lly submitted,
DATE: December 14, 2010 usan K. Pickfor Esq.
ID # 43093
Attorney for Plaintiffs
2612 Chestnut Street
Camp Hill PA 17011
Tel: 717-731-5698
Certificate of Service
I , Susan K. Pickford, Esq. do hereby certify that I have this day served a true and correct
copy of the foregoing document upon the following persons and in the manner indicated below:
Ann R. Johnston Esq
PA DEP
909 Elmerton Ave. Third Floor
Harrisburg, PA 17110
(First class mail)
Michael Kline, Esq
1101 New York Ave, NW
Washington, DC 20005-4213
(First Class mail)
DATE: December 14, 2010
?t
usan K. Pickfor sq.
ID # 43093
Attorney for Plaintiffs
2612 Chestnut Street
Camp Hill PA 17011
Tel: 717-731-5698
10
NANCY COX, :IN THE COURT OF COMMON PLEAS
PAUL GARRETT, :CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
:Docket No: 104504 Civil -oz
z rr
`-
--a
`
v. i
PENNSYLVANIA AMERICAN : Action in Equity
ca
l?
WATER COMPANY -, -a '
Defendant -
PRAECIPE FOR DISCONTINUANCE
WITHOUT PREJUDICE
To Prothonotary:
Pursuant to Rule 229 of the Pennsylvania Rules of Civil Procedure, kindly discontinue without prejudice
the above captioned action docketed at 10-4504 Civil and filed in this county of Cumberland on July 8,
2010.
January 3, 2011
-/2r?
Nancy Cox
Paul Garrett
)?Ldldrt /V?/,nd
Sdsan K. PickforQ, Esq
Attorney for Plaintiffs O
2612 Chestnut Street
Camp Hill, PA 17011
717-777-5698
Certificate of Service
I , Susan K. Pickford, Esq. do hereby certify that I have this day served a true and correct
copy of the foregoing document upon the following persons and in the manner indicated below:
Ann R. Johnston Esq
PA DEP
909 Elmerton Ave. Third Floor
Harrisburg, PA 17110
(First class mail)
Michael Kline, Esq
1101 New York Ave, NW
Washington, DC 20005-4213
(First Class mail)
DATE: January 3, 2011
1/
e?
usan K. Pickfo Esq
ID # 43093
Attorney for Plaintiffs
2612 Chestnut Street
Camp Hill PA 17011
Tel: 717-731-5698
10
4 ',IAN 0 4 ?011 S
NANCY COX, :IN THE COURT OF COMMON PLEAS
PAUL GARRETT, :CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
:Docket No: 10-4504 Civil 4 h,
V. -uz
M CD __ zz_
PENNSYLVANIA AMERICAN :Action in Equity
WATER COMPANY
Defendant
ORDER
AND NOW this day of January, 2011, pursuant to Pa.R.C.P. Rule 229(a) and
Plaintiffs' Praecipe to Discontinue Without Prejudice in the above captioned matter, this matter
is Ordered Discontinued Without Prejudice. It is further ordered that oral argument scheduled
for January 14, 2011 on Preliminary Objections is hereby cancelled.
BY THE COURT
Distribution:
?Ann R. Johnston Esq
PA DEP
909 Elmerton Ave. Third Floor
Harrisburg, PA 17110
/Michael Kline, Esq
Dewey & LeBoeuf
1101 New York Ave, NW
Washington, DC 20005-4213
Court Administration -in bin
(1?- J
/Susan K. Pickford, Esq.
2612 Chestnut Street
Camp Hill, PA 17011
000.0
P?
Prothonotary