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HomeMy WebLinkAbout2010-4504 Civil 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 contentions, 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, 967 A.2d 414 (Pa. 1 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 1 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 2 12, 2010. 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 Dr. 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: Plaintiffs filed their complaint contemporaneously with the motion. Defendant 2 has filed preliminary objections which will be resolved in due course . -3- 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 IS DENIED. irreparable harm. Therefore, the motion By the Court, Albert H. Masland, J. Susan K. Pickford, Esquire For Plaintiffs Seth A. Mendelsohn, Esquire For Defendant :sal -4- 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 IS DENIED. irreparable harm. Therefore, the motion By the Court, Albert H. Masland, J. Susan K. Pickford, Esquire For Plaintiffs Seth A. Mendelsohn, Esquire For Defendant :sal