Delaware Riverkeeper Network v. PA DEP

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Delaware Riverkeeper Network, :
and the Delaware Riverkeeper, :
Maya van Rossum, :
Petitioners :
:
v. : No. 285 M.D. 2019
: Argued: September 15, 2020
Pennsylvania Department of :
Environmental Protection of the :
Commonwealth of Pennsylvania and :
Environmental Quality Board of the :
Commonwealth of Pennsylvania, :
Respondents :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge1
HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: January 12, 2021
Before the Court in our original jurisdiction are the amended preliminary
objections of the Pennsylvania Department of Environmental Protection (DEP) and
the Environmental Quality Board (EQB) (collectively, the Agencies2) to an amended
1
This case was assigned to the opinion writer prior to January 4, 2021, when Judge Brobson
became President Judge.
2
In Arsenal Coal Co. v. Department of Environmental Resources, 477 A.2d 1333(Pa. 1984), the Pennsylvania Supreme Court explained:
(Footnote continued on next page…)
petition for review (Petition) filed by the Delaware Riverkeeper Network (DRN) and
Maya van Rossum, who is the Delaware Riverkeeper and executive director of DRN,
(collectively, Riverkeeper). Riverkeeper filed the Petition in the nature of a
mandamus action, seeking declaratory and injunctive relief to compel DEP to
respond to a petition for rulemaking that Riverkeeper submitted to the Agencies
(Rulemaking Petition). For the reasons set forth below, we sustain, in part, and
overrule, in part, the Agencies’ preliminary objections.
I. BACKGROUND
In ruling on preliminary objections, we accept as true all well-pleaded material
allegations in the Petition and any reasonable inferences that we may draw from the
averments. Meier v. Maleski, 648 A.2d 595, 600 (Pa. Cmwlth. 1994). The Court,
however, is not bound by legal conclusions, unwarranted inferences from facts,
argumentative allegations, or expressions of opinion encompassed in the complaint.
Id. We may sustain preliminary objections only when the law makes clear that the
petitioner cannot succeed on the claim, and we must resolve any doubt in favor of
the petitioner. Id. “We review preliminary objections in the nature of a demurrer
under the above guidelines and may sustain a demurrer only when a petitioner has
failed to state a claim for which relief may be granted.” Armstrong Cnty. Mem’l
Hosp. v. Dep’t of Pub. Welfare, 67 A.3d 160, 170 (Pa. Cmwlth. 2013).
The environmental law of this Commonwealth is administratively regulated by
three separate bodies. The [EQB] has as its primary purpose and power to
formulate, adopt and promulgate rules and regulations which become the rules and
regulations of the Department of Environmental Resources [(now DEP)], which
then has the duty of enforcing the regulations. The third body, the Environmental
Hearing Board [(EHB),] is empowered to review orders, permits, licenses and
decisions of [DEP] in its enforcement role.
Arsenal Coal, 477 A.2d at 1336 n.3 (citation omitted).
2
With the above standard in mind, we accept as true the following allegations
of the Petition. DRN is a nonprofit organization with approximately 20,000
members that undertakes, inter alia, environmental advocacy to protect and restore
the Delaware River and its tributaries, habitats, and resources. (Pet. ¶ 10.) On behalf
of DRN and its members, Riverkeeper has petitioned the Agencies for regulatory
action—and has instituted this action—with respect to contamination of water with
the chemical perfluorooctanoic acid (PFOA). (Id. ¶¶ 2, 12.)
PFOA is part of a family of chemical compounds known as per- and
polyfluoroalkyl substances (PFAS). (Id. ¶ 2.) These man-made chemicals were
manufactured from the 1950s until recently and are used in various industrial
applications and as an ingredient in aqueous firefighting foam. (Id. ¶ 3.) PFAS,
once released, may contaminate surface water, groundwater, and other parts of the
natural environment, and they resist biodegradation. (Id.) They are also toxic to
humans, animal life, and ecosystems generally. (Id. ¶¶ 4, 21.) When ingested, PFAS
persist in the body for many years, causing, inter alia, diseases of the liver, thyroid,
and pancreas. (Id. ¶ 4.) Exposure in humans—even at very low levels—is linked to
a host of diseases, such as cancers, high cholesterol, complications of pregnancy,
and immune-system disorders. (Id. ¶¶ 3, 27, 39-40.) Infants, children, and
individuals with compromised immune systems are particularly vulnerable to the
adverse health effects of PFAS, which include decreased effectiveness of childhood
vaccines. (Id. ¶¶ 4, 37-38.) No medical procedure exists to remove PFAS from the
body once they are ingested. (Id. ¶ 41.)
Some members of DRN live in Bucks and Montgomery Counties,
Pennsylvania, where DEP is currently investigating water supplies that are
contaminated with significantly elevated levels of PFAS. (Id. ¶¶ 5, 11, 32.)
3
Water from one municipal well in Warminster, Pennsylvania, contained 1,440 parts
per trillion (ppt) of PFOA, whereas a safe concentration for drinking water might be
between 1 ppt and 6 ppt. (Id. ¶ 5.) Much of the worst contamination is located near
sites where PFAS-based firefighting foam was used, including former and current
military air stations in the area of the Delaware River. (Id. ¶¶ 11, 28, 32.) Members
of DRN—and, by implication, members of the public—have been and continue to
be adversely affected by drinking water contaminated by PFAS, which they often
ingest without knowledge of the contamination. (Id. ¶ 6.) Beginning in 2014,
numerous public and private wells in Bucks and Montgomery Counties were closed
due to high PFOA levels but not before many people consumed the contaminated
water. (Id. ¶ 30.)
DRN first became aware of PFAS contamination in Pennsylvania in 2005 and
has advocated for regulation of PFAS in drinking water since that time in both
New Jersey and Pennsylvania. (Id. ¶¶ 13-14.) In 2012, the United States
Environmental Protection Agency (EPA) added PFOA to an unregulated
contaminants rule, requiring water providers to monitor PFOA levels. (Id. ¶ 31.)
EPA initially set a nonbinding health advisory level for PFOA at 400 ppt, but, in
2016, EPA revised the advisory level downward to 70 ppt. (Id. ¶¶ 35-36.) Many
public and private water supplies in Pennsylvania far exceed that level of
contamination. (Id. ¶ 31.) Scientific studies—including assessments by the federal
Agency for Toxic Substance and Disease Registry—have concluded that the current
advisory level of 70 ppt is inadequate to protect human health and that safe levels
are significantly lower. (Id. ¶ 37.) In August 2018, the New Jersey Drinking Water
Quality Institute voted to set binding maximum contaminant levels (MCL) for PFAS
generally at 13 ppt and for PFOA at 14 ppt. (Id. ¶ 49.) Those MCLs were based on
4
safe levels of exposure for adults, but they may not adequately protect children, who
are more sensitive to lower levels of exposure. (Id. ¶¶ 49-55.) EPA has not yet
established a binding federal limit on PFAS concentrations. (Id. ¶ 42.)
On May 8, 2017, DRN submitted the Rulemaking Petition, requesting that the
Agencies exercise their authority under the Pennsylvania Safe Drinking Water Act
(Act)3 to establish an MCL of between 1 ppt and 6 ppt for PFOA in drinking water.
(Id. ¶ 55.) In accordance with regulations governing the Agencies’ response to
petitions for establishing an MCL,4 DRN was permitted to present the Rulemaking
Petition at the next meeting of the EQB, which was held on August 15, 2017.
(Id. ¶ 61.) At the meeting, DEP officials recommended that the Rulemaking Petition
be accepted for further evaluation and represented that DEP would produce and
present a report on the Rulemaking Petition no later than June 2018. (Id. ¶ 62.)
The EQB voted unanimously to accept the Rulemaking Petition for review.
(Id. ¶ 63.)
Despite DEP’s representation, it did not produce a report on the Rulemaking
Petition in June 2018, and it still has not done so. (Id. ¶ 65.) On June 1, 2018,
counsel for DRN contacted Patrick McDonnell, who serves as DEP Secretary and
Chair of the EQB, in writing to request action on the Rulemaking Petition. (Id. ¶ 66.)
The Agencies did not respond directly to DRN’s letter. (Id. ¶ 67.) At the
June 19, 2018 meeting of the EQB, DEP represented that it would need an undefined
amount of additional time to respond to the Rulemaking Petition and that it was then
attempting to hire a toxicologist to assist with production of the report. (Id. ¶ 68.)
On September 19, 2018, Pennsylvania Governor Tom Wolf announced the creation
3
Act of May 1, 1984, P.L. 206, as amended, 35 P.S. §§ 721.1-.17.
4
See 25 Pa. Code §§ 23.1-.8.
5
of a PFOA action team and that he would prioritize hiring toxicologists to establish
drinking water limits for PFOA. (Id. ¶¶ 75-76.) On May 3, 2019, Secretary
McDonnell suggested to the press that DEP would complete an MCL proposal for
PFOA within three years. (Id. ¶ 86.) At another meeting of the EQB on
June 11, 2019, the Rulemaking Petition appeared on the agenda but was not
discussed during the public portion of the meeting, and DRN representatives present
at the meeting were not permitted to address the EQB. (Id. ¶¶ 69-70.) The Agencies
have pursued no regulation of PFAS in drinking water below the EPA health
advisory level of 70 ppt—which is not a safe drinking water level—and, for
unknown reasons, have required further testing of wells with a concentration of at
least 40 ppt of PFAS. (Id. ¶¶ 73-74, 85.) Nor have the Agencies acted on or
responded to the Rulemaking Petition in any way, despite DEP possessing sufficient
information to establish an MCL for PFOA, even if only on an interim basis.
(Id. ¶¶ 83, 92.)
On July 11, 2019, Riverkeeper filed the Petition, which consists of
three counts. In Count I, Riverkeeper brings a claim under the citizen suit provision
in Section 13(b) of the Act, 35 P.S. § 721.13(b), for injunctive relief requiring DEP
to produce a report evaluating and responding to the Rulemaking Petition.
(Id. ¶¶ 106, 109.) Riverkeeper avers that, in failing to issue such a report, DEP has
breached its mandatory duty under Section 5 of the Act, 35 P.S. § 721.5, to adopt
and implement a public water supply program, including through establishing
MCLs. (Id. ¶¶ 98-100, 105.) Additionally, Riverkeeper cites EQB regulations
governing the Agencies’ responses to petitions for rulemaking (EQB policy), which,
Riverkeeper contends, require DEP to produce the requested report within a certain,
defined timeframe. (Id. ¶¶ 101-03, 106 (citing 25 Pa. Code § 23.6).) Riverkeeper
6
claims that DEP’s persistent inaction in response to the Rulemaking Petition
amounts to DEP’s failure to perform a nondiscretionary act required by the Act, with
that failure to act forming the basis of Riverkeeper’s citizen suit under
Section 13(b) of the Act.
In Count II, Riverkeeper alleges that Article I, Section 27 of the Pennsylvania
Constitution, known as the Environmental Rights Amendment, imposes an
affirmative fiduciary duty on DEP to preserve, inter alia, safe drinking water within
the Commonwealth. (Id. ¶¶ 111-14 (citing Pa. Env’t Def. Found. v. Cmwlth.,
161 A.3d 911 (Pa. 2017); Robinson Twp. v. Cmwlth., 83 A.3d 901 (Pa. 2013)).)
Riverkeeper contends that DEP has breached that duty by failing to respond to the
Rulemaking Petition or otherwise propose an MCL for PFOAs, and Riverkeeper
essentially seeks an injunction requiring DEP to evaluate the Rulemaking Petition
and/or propose an MCL in response. (Id. ¶¶ 115-17.)
In Count III, Riverkeeper seeks a declaration that DEP, by its inaction, is
violating its duty to respond to the Rulemaking Petition, which duty, in
Riverkeeper’s view, is found in the Act and the Environmental Rights Amendment.
(Id. ¶¶ 119-21.) Riverkeeper also seeks payment of its attorney’s fees and costs.
(Id. ¶ 121.)
II. ISSUES
The Agencies responded to the Petition by filing preliminary objections in the
nature of a demurrer. With respect to Count I of the Petition, the Agencies assert
that the Act does not impose a nondiscretionary duty on them to produce the report
Riverkeeper seeks, to adopt an MCL for any specific contaminant, or to perform any
other duty alleged by Riverkeeper; thus, the Act cannot serve as a legal basis for
Riverkeeper’s claim. The Agencies also claim that the EQB policy is not binding
7
on the Agencies and, even if it was binding, cannot give rise to a cause of action
under the Act. With respect to Count II, the Agencies insist that they are complying
with their duties under the Environmental Rights Amendment because they are
currently undertaking a scientific evaluation of the Rulemaking Petition. They claim
that setting a specific deadline for agency action would hinder their proper discharge
of those duties and be inconsistent with their constitutional obligations. With respect
to Count III, the Agencies first assert that Riverkeeper’s request for attorney’s fees
and costs is insufficiently specific, and they ask this Court to direct Riverkeeper to
replead Count III with greater specificity as to that request. They also demur to
Count III, arguing that Riverkeeper is not entitled to declaratory relief based on the
Agencies’ arguments as to Counts I and II and that Riverkeeper has articulated no
basis for its request for attorney’s fees and costs.
In addition to their demurrer to each individual count of the Petition, the
Agencies demur to all counts as to the EQB in particular. They argue that the EQB
is not a necessary and indispensable party to this action, because Riverkeeper
demands no action from the EQB and essentially admits in the Petition that it makes
no allegations directly against the EQB.
III. DISCUSSION
A. The Act (Count I)
DEP first argues that Riverkeeper has failed to state a claim under the citizen
suit provision found in Section 13(b)(1) of the Act, which provides:
(b) Civil action to compel compliance.--Any person having an
interest which is or may be adversely affected may commence a
civil action on his own behalf to compel compliance with this act
or any rule, regulation, order or permit issued pursuant to this act:
(1) against [DEP] where there is alleged a failure of [DEP] to
perform any act which is not discretionary with [DEP].
8
(Emphasis added.) Also relevant to our analysis are Sections 4(a), 5(a), and 5(b) of
the Act, 35 P.S. §§ 721.4(a), 721.5(a)-(b). Section 4(a) of the Act provides, in
relevant part:
(a) [EQB] to establish standards, rules and regulations.--The
[EQB] . . . shall . . . adopt such rules and regulations of [DEP],
governing the provision of drinking water to the public, as it deems
necessary for the implementation of the provisions of this act. The
[EQB] shall adopt [MCLs] and treatment technique requirements
no less stringent than those promulgated under the [the federal Safe
Drinking Water Act, 42 U.S.C. §§ 300f to 300j-27 (FSDWA)], for
all contaminants regulated under the national primary and
secondary drinking water regulations. The [EQB] 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.
(Emphasis added.) Section 5(a)-(b) of the Act provides, in relevant part:
(a) State to assume primary enforcement.--[DEP] shall adopt and
implement a public water supply program which includes, but is
not limited to, those program elements necessary to assume
State primary enforcement responsibility under the [FSDWA].
The public water supply program shall include, but not be limited
to, [MCLs] or treatment technique requirements establishing
drinking water quality standards . . . .
(b) [DEP] to establish compliance procedures.--[DEP] shall develop
and implement procedures as may be necessary and appropriate in
order to obtain compliance with this act or the rules and regulations
promulgated, or permits issued hereunder.
Furthermore, the EQB’s regulations governing responses to petitions for rulemaking
provide, in relevant part:
If the EQB accepts [a petition for rulemaking], a notice of acceptance
will be published in the Pennsylvania Bulletin within 30 days.
In addition, a report will be prepared in accordance with one of the
following procedures:
(1) Petitions other than stream redesignation petitions. [DEP]
will prepare a report evaluating the petition within 60 days.
If the report cannot be completed within the 60-day period,
9
at the next EQB meeting [DEP] will state how much
additional time is necessary to complete the report. [DEP’s]
report will include a recommendation on whether the EQB
should approve the action requested in the petition. If the
recommendation is to change a regulation, the report will
also specify the anticipated date that the EQB will consider
a proposed rulemaking.
25 Pa. Code § 23.6.
In support of their argument that Riverkeeper has failed to state a claim under
Section 13(b) of the Act, the Agencies first argue that nothing in the Act imposes a
nondiscretionary duty on DEP to produce a report in response to the Rulemaking
Petition. They note that Section 5(a) of the Act generally imposes a nondiscretionary
duty to “adopt and implement a public water supply program,” including, inter alia,
MCLs, but they argue that the Agencies fulfilled that duty long ago when EPA found
DEP’s water supply program adequate, such that DEP could assume primary
enforcement responsibility under the FSDWA. The Agencies emphasize that
Section 5 of the Act does not affirmatively require the adoption of an MCL for any
particular pollutant. In support of this argument, the Agencies emphasize that
Section 4(a) of the Act, which affirmatively requires the EQB (not DEP) to establish
MCLs for some pollutants, clearly makes establishing an MCL for PFAS
discretionary with the EQB, because no federal MCL exists for PFAS.
Second, the Agencies focus on DEP’s duty to “develop and implement
procedures” for obtaining compliance with the Act, which is located in
Section 5(b) of the Act. The Agencies claim that Riverkeeper has not shown how
issuance of the DEP report is a procedure necessary to obtain compliance with the
Act, and they essentially argue that issuance of that report is merely discretionary
under the Act. In support, they note that the statutory provision authorizing
submission of the Rulemaking Petition—Section 1920-A(h) of The Administrative
10
Code of 1929,5 71 P.S. § 510-20(h)—was enacted in 1980, before the Act.
The Agencies argue that, because the General Assembly could have explicitly
referenced the Section 1920-A(h) petition process as a ground for a citizen suit under
Section 13(b) of the Act but did not do so, the General Assembly cannot have
intended for agency inaction on a rulemaking petition to support a citizen suit under
Section 13(b).
Finally, the Agencies argue that the EQB’s regulation requiring a report on a
certain timeline cannot support a cause of action under Section 13(b) of the Act,
because (1) that regulation is a nonbinding statement of policy, not an enacted rule,
and (2) even if the regulation was binding, it was not “issued pursuant to [the Act],”
as is required for a regulation to form the basis of a Section 13(b) suit.
In response, Riverkeeper first concedes that DEP is not required by the Act,
the EQB policy, or otherwise, to take any particular action requested in the
Rulemaking Petition and that actually adopting an MCL for PFAS is, at this point,
discretionary with the Agencies. Riverkeeper emphasizes, however, that in this
litigation, it does not seek to require the Agencies to adopt an MCL, but rather it
seeks to compel DEP to comply with the “statutory duty . . . to take some action” on
the Rulemaking Petition. (Riverkeeper’s Br. at 19 n.13 (emphasis added).)
Riverkeeper identifies the nondiscretionary duty on which its claim is based as
residing in Section 5 of the Act. It notes that the mandate that DEP “adopt and
implement a public water supply program” is expressly and purposefully broad, such
that it “includes, but is not limited to” compliance with federal requirements.
Section 5(a) of the Act (emphasis added). Riverkeeper identifies similarly broad
language throughout Section 5 of the Act, including such an expansion of DEP’s
5
Added by the Act of Dec. 3, 1970, P.L. 834.
11
duty in Section 5(b) of the Act to “develop and implement procedures” to effect
compliance with the Act.
Based on these expansive descriptions of DEP’s duties under the Act,
Riverkeeper reasons that the EQB policy at issue is essentially the mechanism or
procedure through which DEP discharges its duty to consider discretionary MCLs
under the Act. Riverkeeper maintains that DEP’s refusal to follow that procedure
timely is a failure of its duty to implement a public water supply program and
concludes that the Act imposes “a mandatory obligation on . . . DEP to engage in
(at [the] very least) the evaluation of [the Rulemaking Petition] . . . or to take such
other action to implement a public water supply that assures the provision of safe
drinking water.” (Riverkeeper’s Br. at 26 (emphasis added).)
We agree with the Agencies. It is undisputed that, in order to proceed with a
citizen suit under Section 13(b) of the Act, Riverkeeper must identify some
nondiscretionary duty assigned to DEP under the Act and allege that DEP has
breached that duty. Riverkeeper first relies on the duty enumerated in Section 5(a)
of the Act, which requires DEP to “adopt and implement a public water supply
program” that includes two components: (1) whatever elements are necessary for
the Commonwealth to assume primary enforcement responsibility under the
FSDWA, and (2) MCLs or treatment techniques for pollutants. Riverkeeper does
not allege that DEP’s inaction on the Rulemaking Petition endangers its primary
enforcement role under the FSDWA but focuses on the second prong of DEP’s
duty—that DEP’s public water supply program must include setting MCLs or
treatment techniques. Riverkeeper also emphasizes Section 4(a) of the Act, which
provides that the EQB (not DEP) “shall adopt” MCLs and/or treatment techniques
no less stringent than those established under the FSDWA and that the EQB “may
12
adopt” MCLs and/or treatment techniques that are more stringent than those federal
limits. 35 P.S. § 721.4(a) (emphasis added). In the relevant terminology, adoption
of MCLs such as that proposed in the Rulemaking Petition is discretionary with the
EQB, not nondiscretionary with DEP, as is required to support an action under
Section 13(b) of the Act. In keeping with this analysis, Riverkeeper admits that
adoption of the MCL it seeks is discretionary, not mandatory. (See Pet. ¶ 47 (“The
[Act] provides that an MCL must be no less stringent than those promulgated under
the [FSDWA,] but explicitly permits . . . DEP to establish additional and/or more
stringent levels for . . . PFOA . . . .” (emphasis added)); Riverkeeper’s Br. at 19 n.13
(“DEP has the discretion to issue an MCL in accordance with [Riverkeeper’s]
Rulemaking Petition . . . .” (emphasis added)).)
Nevertheless, Riverkeeper attempts to locate the requisite nondiscretionary
duty within the Agencies’ discretionary power to adopt MCLs under the Act,
essentially arguing that this power somehow implies a nondiscretionary duty for
DEP to evaluate and/or respond to petitions asking it to exercise its discretion.
We find no such duty in the Act itself. As the Agencies point out, the Act does not
mention rulemaking petitions or the EQB policy, let alone establish affirmative
duties concerning them. (See Agencies’ Br. at 24.) Nor does it require the Agencies
to adhere to any particular rationale or timeframe in exercising the discretion
afforded them under the Act to adopt—or not to adopt—MCLs more stringent than
the federal MCLs.
Finally, we disagree with Riverkeeper’s assertion that compliance with the
EQB policy is somehow incorporated as a nondiscretionary duty within the Act.
First, the EQB policy is not, as Riverkeeper argues, a procedure which DEP must
adopt and implement pursuant to Section 5(b) of the Act. That section requires DEP
13
to implement procedures “as may be necessary and appropriate in order to obtain
compliance with” the Act. But it also enumerates specific examples of the policies
DEP must implement.6 These examples obviously all relate to enforcement of
existing laws or regulations against entities other than the Agencies, which is the
purpose of Section 5(b) (i.e., to “obtain compliance with” the Act). 35 P.S.
§ 721.5(b). We decline Riverkeeper’s invitation to read Section 5(b) so broadly as
to require DEP’s compliance with a procedure that the General Assembly omitted
from the lengthy list of examples it provided, and which is a procedure for regulatory
change, not enforcement of existing regulations. Second, the EQB policy and the
petition process generally are not “rules” or “regulations” promulgated under the
Act—they are independent of the Act and preexisted it. Section 5(b), therefore, does
not require DEP to implement procedures for enforcement of the EQB policy.
Simply put, DEP’s consideration and adoption of the MCL Riverkeeper seeks
are exercises of the discretion committed to the Agencies by the Act, and the Act
6
These include:
(1) Monitoring and inspection.
(2) Maintaining an inventory of public water systems in the Commonwealth.
(3) A systematic program for conducting sanitary surveys of public water systems
throughout the Commonwealth.
(4) The establishment and maintenance of a program for the certification of
laboratories conducting analytical measurements of drinking water contaminants
specified in the drinking water standards . . . .
(5) The establishment and maintenance of a permit program concerning plans and
specifications for the design and construction of new or substantially modified
public water systems . . . .
35 P.S. § 721.5(b).
14
does not impose any nondiscretionary duty on DEP in conjunction therewith. 7
The General Assembly was aware when it enacted the Act that Section 1920-A(h)
of The Administrative Code of 1929 requires the Agencies to accept petitions for
rulemaking. We have recognized that, pursuant to that provision, “private citizens
may request that the EQB issue regulations by filing a petition for rulemaking with
DEP.” Funk v. Dep’t of Env’t Prot., 71 A.3d 1097, 1099 (Pa. Cmwlth. 2013).
The General Assembly did not, however, choose to include DEP’s role in accepting
or responding to petitions for rulemaking within the ambit of its nondiscretionary
duties under the Act. “A court has no power to insert words into statutory provisions
where the legislature has failed to supply them.” Amendola v. Civil Serv. Comm’n
of Crafton Borough, 589 A.2d 775, 777 (Pa. Cmwlth. 1991). Accordingly, we
conclude that the Petition fails to allege any breach of a nondiscretionary duty under
the Act by DEP. Accordingly, Riverkeeper has failed to set forth a cause of action
under Section 13(b) of the Act.
B. The Environmental Rights Amendment (Count II)
In support of their demurrer to Count II of the Petition, the Agencies first rely
on their position with respect to Count I—that the Act does not impose a mandatory
duty on the Agencies to pursue any specific regulatory action. Based on this
position, the Agencies assert that Riverkeeper’s Environmental Rights Amendment
7
As Riverkeeper points out, the Petition is in the nature of a mandamus action.
(See Riverkeeper’s Br. at 29 n.19.) We acknowledge that mandamus is an appropriate remedy
when an agency is “sitting on its hands” in the face of a mandatory duty, Chanceford Aviation
Props., L.L.P. v. Chanceford Township Board of Supervisors, 923 A.2d 1099, 1108 (Pa. 2007),
but we find no mandatory duty under the Act relevant to the allegations in the Petition.
We also emphasize the extraordinary nature of mandamus relief, which can compel only an action
that, unlike here, “involves no discretion on the part of” the agency. Barndt v. Pa. Dep’t of Corr.,
902 A.2d 589, 592 (Pa. Cmwlth. 2006). Although we analyze Riverkeeper’s Section 13(b) claim
under the Act itself, and not on common law mandamus principles, we note that the result here is
consistent with those principles, which would not support mandamus relief in this matter.
15
claim in this matter is legally insufficient, because the relevant statutory scheme—
i.e., the Act—cannot be displaced by general obligations under the amendment and
the Act does not impose any mandatory duty supporting Riverkeeper’s claims.
(See Agencies’ Br. at 29-30 (citing Funk v. Wolf, 144 A.3d 228 (Pa. Cmwlth. 2016)
(Funk), aff’d, 158 A.3d 642 (Pa. 2017)).)
The Agencies also claim that the facts, as alleged in the Petition, demonstrate
that they are acting consistently with their obligations under the Environmental
Rights Amendment. In support, they cite DEP’s initial announcement that a report
would take more time, the creation of the PFAS action team, the hiring of
toxicologists, and the implementation of a statewide sampling plan to gather data.
The Agencies appear to dispute the factual allegation that they already possess
sufficient scientific information to respond to the Rulemaking Petition, including by
stating that agencies in other jurisdictions have come to differing conclusions about
how or whether to adopt MCLs for PFAS. (See id. at 31.)
Riverkeeper’s argument in response rests on its view that the Act imposes a
mandatory, statutory duty on DEP to respond to the Rulemaking Petition. Indeed,
Riverkeeper states that it is “[the Act,] read in conjunction with [the Environmental
Rights Amendment, that] provides a cognizable basis” for Riverkeeper’s Count II
claim. Accordingly, Riverkeeper argues, the reasoning in Funk on which the
Agencies rely is factually inapposite, because the respondent agencies in Funk did
not have a mandatory duty to perform the action sought. Citing the Agencies’
responsibilities as trustees under Pennsylvania courts’ interpretations of the
Environmental Rights Amendment, Riverkeeper argues that agency inaction in the
face of egregious environmental and health harms is a breach of the Agencies’
recognized fiduciary duties and, thus, is cognizable in an action pursuant to the
16
Environmental Rights Amendment. In response to the Agencies’ other arguments—
concerning whether DEP has, in fact, complied with its constitutional duties in a
timely manner—Riverkeeper argues that such “factual excuses” are not an
appropriate basis for preliminary objections. (See Riverkeeper’s Br. at 49.)
In Funk, various individuals filed a petition for review in the nature of a
mandamus action seeking to compel Commonwealth agencies to develop a
comprehensive plan to reduce greenhouse gas emissions. Funk, 144 A.3d at 233-34.
The petitioners’ claims relied on the Commonwealth’s duties under the
Environmental Rights Amendment. Id. We observed:
Because it is the Commonwealth, not individual agencies or
departments, that is the trustee of public natural resources under the
[Environmental Rights Amendment] . . . , [the amendment] must be
understood in the context of the structure of government and principles
of separation of powers. In most instances, the balance between
environmental and other societal concerns is primarily struck by the
General Assembly, as the elected representatives of the people, through
legislative action.
Id. at 235. We explained that, although agencies sometimes must make such
balancing judgments themselves, they must always do so within the larger balance
that the General Assembly strikes when it passes legislation applicable to the agency.
Id. In other words, the legislative process produces a statute that already reflects and
incorporates agencies’ relevant duties under the Environmental Rights Amendment.
Id. at 249-50. Based on that reasoning, we held that the Environmental Rights
Amendment “does not authorize [the agencies] to disturb the legislative scheme” for
greenhouse gas regulation established in two relevant statutes—the Pennsylvania
Climate Change Act8 and the Air Pollution Control Act.9 Id. at 250. After examining
8
Act of July 9, 2008, P.L. 935, 71 P.S. §§ 1361.1-.8.
9
Act of January 8, 1960, P.L. 2119, as amended, 35 P.S. §§ 4001-4015.
17
the mandatory duties they imposed on the agencies, we concluded that the statutes
did not require performance of the acts the petitioners sought and that the
Environmental Rights Amendment, therefore, also did not do so, and we dismissed
the petitioners’ mandamus claim. Id.
Significantly, Riverkeeper bases its claim in Count II squarely upon the
mandatory duty of evaluation it purports to find in the Act and DEP’s alleged breach
thereof. In other words, the constitutional violation Riverkeeper asserts necessarily
implies a violation of the Act. Significantly, Riverkeeper does not argue that the Act
itself is somehow inconsistent with the Environmental Rights Amendment or that
the Agencies’ compliance with the Act would be insufficient to meet their
constitutional obligations. Based on our analysis of Count I of the Petition, we have
concluded that the Act does not impose any mandatory duty on DEP to respond to
the Rulemaking Petition. Thus, this matter is analogous to Funk—the relevant
statute, which embodies the General Assembly’s judgment about the Agencies’
duties under the Environmental Rights Amendment, does not require the action
sought in the Petition, so the amendment itself does not require that action.
Accordingly, Riverkeeper’s theory of Count II, in the form in which it is before us
now,10 is not sufficient to state a claim under the Environmental Rights Amendment.
10
Our disposition of Count II should not be understood to foreclose the possibility that a
claim under the Environmental Rights Amendment might ripen once the Agencies take further
action on the Rulemaking Petition. At that point, the “duty to evaluate,” which Riverkeeper
purports to find in the Act as critical support for its Count II claim, will no longer be relevant.
Instead, and unlike now, the Agencies will have exercised their discretion under the Act, in one
way or another, concerning setting MCLs beyond the federal requirements. Only then can we
determine whether the Agencies’ actions were an abuse of that discretion under the Act (and under
the Environmental Rights Amendment, to the extent its duties are not coextensive with those under
the Act). This is particularly important given our analysis of Count III, below, where we hold that
the Agencies are obligated by statute to respond to the Rulemaking Petition, as outlined in the
EQB policy. Once the Agencies undertake the necessary response and complete the rulemaking
(Footnote continued on next page…)
18
Because we so conclude, we need not address the Agencies’ argument that, as a
matter of fact, they are in compliance with their duties under the Environmental
Rights Amendment. We note in passing, however, that the Agencies’ factual
allegations are not relevant at the preliminary objection stage because we must
accept the averments in the Petition as true. See Meier, 648 A.2d at 600.
C. Declaratory Relief (Count III)
The Agencies demur to Count III on the basis of their position that, in
Counts I and II, Riverkeeper has failed to state legally sufficient claims, and,
therefore, there is no actual controversy remaining to be settled by declaratory
judgment. Because of this alleged lack of underlying claims and based on their
allegation that the Agencies are in compliance with their duties, the Agencies
essentially claim that there is no dispute left for this Court to resolve. In support, the
Agencies again cite Funk, where we sustained the agencies’ preliminary objection
to the petitioners’ request for declaratory relief after we determined that the
petitioners had failed to state a mandamus claim.
In response, Riverkeeper insists that it has an actual controversy with the
Agencies based on the underlying claims in Counts I and II and characterizes its
actual dispute with the Agencies as relating to the urgency of remediating PFOA
contamination. Riverkeeper also states, however, that it “seeks a judicial
determination regarding the obligations and liability of DEP to issue a report in
response to DRN’s Rulemaking Petition or to otherwise regulate and abate PFOA
contamination in drinking water.” (Riverkeeper’s Br. at 51 (emphasis added).)
Thus, although the regulation of PFOA contamination is the subject matter of the
petition process, we can evaluate the constitutional (as well as the statutory) merits of that response
and the exercises of discretion it involves.
19
parties’ dispute, Riverkeeper explains, throughout its brief, that its actual
controversy with DEP essentially concerns process, not substance.11 (See, e.g.,
Riverkeeper’s Br. at 19 n.13 (explaining that, while method of regulatory action lies
within DEP’s discretion, DEP is obligated to take some action in response to
Rulemaking Petition).) In Riverkeeper’s view, a declaratory judgment is proper
because it “will practically help to end the controversy.” (Riverkeeper’s Br. at 52
(quoting Pa. Game Comm’n v. Seneca Res. Corp., 84 A.3d 1098, 1103 (Pa. Cmwlth.
2014))).
The Declaratory Judgments Act12 provides for declaratory judgments
“to settle and to afford relief from uncertainty and insecurity with respect to rights,
status, and other legal relations, and is to be liberally construed and administered.”
42 Pa. C.S. § 7541(a). Declaratory relief is limited, however, by certain justiciability
concerns, including that a petitioner “must allege an interest which is direct,
substantial and immediate, and must demonstrate the existence of a real or actual
controversy.” Off. of Governor v. Donahue, 98 A.3d 1223, 1229 (Pa. 2014).
In Funk, we noted that declaratory relief is appropriate only where the declaratory
judgment, if granted, would materially address the actual controversy between the
parties, independently of the petitioners’ other claims. We stated:
“[D]eclaratory judgment must not be employed . . . as a medium for the
rendition of an advisory opinion which may prove to be purely
academic.” Gulnac by Gulnac v. S. Butler Cnty. Sch. Dist. . . . ,
587 A.2d 699, 701 ([Pa.] 1991). “Courts generally should refuse to
grant requests for declaratory judgment where it would not resolve the
controversy or uncertainty which spurred the request.” Rendell v. Pa.
State Ethics Comm’n., 938 A.2d 554, 559 (Pa. Cmwlth. 2007).
11
Consistent with this, at oral argument on this matter, counsel for the Agencies conceded
the seriousness of PFOA contamination and emphasized that it was only the manner in which the
Agencies must address that serious problem that is at issue.
12
42 Pa. C.S. §§ 7531-7541.
20
Funk, 144 A.3d at 251. We reasoned that, because the petitioners’ underlying
mandamus claim failed, granting the requested declaratory judgment might “provide
a legal predicate to the success of their mandamus claims, but would otherwise have
no independent significance.” Id. (quoting Stackhouse v. Pa. State Police,
892 A.2d 54, 63 (Pa. Cmwlth.), appeal denied, 903 A.2d 539 (Pa. 2006)). We also
observed that, on the facts in Funk, there was “no indication that future litigation
between the parties will turn on the questions raised by the petitioners’ requests for
declaratory relief,” and we dismissed the request for declaratory relief on that basis.
Id.The instant matter differs significantly from the declaratory relief analysis in
Funk. There, the petitioners sought to compel agencies to take action, and we found
no statutory basis for that request whatsoever. Here, although neither the Act nor
the Environmental Rights Amendment compels the Agencies to respond to the
Rulemaking Petition, a different statute effectively does require a response.
Specifically, Section 1920-A of The Administrative Code of 1929 provides:
(b) The [EQB] shall have the power and its duties shall be to formulate,
adopt and promulgate such rules and regulations as may be determined
by the board for the proper performance of the work of [DEP] . . . .
....
(h) Any person may petition the [EQB] to initiate a rule making
proceeding for the issuance, amendment or repeal of a regulation
administered and enforced by [DEP].
(Emphasis added.)
Although Section 1920-A of The Administrative Code of 1929 does not
explicitly impose a duty on the Agencies to respond to a petition submitted pursuant
to subsection (h) thereof, we conclude that such a duty is present for two reasons.
First, the obvious purpose of subsection (h) is to permit the public to influence the
21
Agencies’ decisions to create or change regulations. This purpose would be fatally
frustrated if the Agencies have no duty under Section 1920-A to evaluate and
respond to rulemaking petitions in at least some way. Such a duty is, therefore,
necessarily implicit in subsection (h)’s creation of a statutory rulemaking petition
process. See 1 Pa. C.S. § 1922(1)-(2) (establishing legal presumptions that
“General Assembly does not intend . . . result that is absurd, impossible of execution
or unreasonable” and “intends . . . entire statute to be effective and certain.”
(emphasis added)). Second, the only explanation of how and when the Agencies
respond to subsection (h) rulemaking petitions is the EQB policy, which is
self-imposed by the Agencies. Regardless of whether the EQB policy is a binding
regulation or merely a statement of policy, it is the only method of responding to
rulemaking petitions that the parties have discussed in this matter. The Agencies
have identified no other interpretation of, or regulation or policy concerning, the
subsection (h) petition process. Instead, the Agencies appear to take the position
that, despite their statutory duty to accept (and, therefore, to consider) rulemaking
petitions, they may simply pause, indefinitely, in the middle of the rulemaking
petition process. Riverkeeper, on the other hand, insists that DEP is bound by the
EQB policy to issue a report or other response to the Rulemaking Petition within
some finite period of time and alleges in the Petition that DEP has not acted in
accordance with its policy.
There is, therefore, an actual controversy between the parties, which is an
appropriate subject for declaratory relief. Gulnac by Gulnac, 587 A.2d at 701.
Furthermore, if granted, a declaration that the Agencies have a duty to engage in—
and not frustrate—the statutory subsection (h) petition process by following the DEP
policy will meaningfully clarify what the Agencies must do and will resolve the
22
controversy. Such declaratory relief would be independently significant—it would
require DEP to respond to the petition, which is all that Riverkeeper seeks at this
point in the regulatory process (and is independent of the substance of DEP’s
response, which is governed by the Act, not the DEP policy). DEP’s response to the
Rulemaking Petition would also allow the subsection (h) process to move forward
and achieve its intended purpose. Thus, unlike in Funk, there is a statutory source
of obligation on which to base declaratory relief, independent of Riverkeeper’s
claims in Counts I and II. Accordingly, we conclude that Riverkeeper has stated a
claim for declaratory relief in Count III, and we will overrule the Agencies’
preliminary objections in the nature of a demurrer thereto.
D. Attorney’s Fees and Costs (Count III)
In addition to their demurrer, the Agencies argue that, because Riverkeeper
cites no authority or reason for its request for attorney’s fees and costs in Count III,
we should either dismiss that claim or require Riverkeeper to replead it with greater
specificity. Riverkeeper responds that its request is proper because DEP has acted
“arbitrarily and vexatiously” by its persistent failure to issue a report or affirmatively
state when it will do so. (Riverkeeper’s Br. at 52 n.28.) In support, Riverkeeper
cites a decision of this Court in which we held that a litigant was liable for attorney’s
fees because of its “arbitrary,” “dilatory[,] and obdurate” conduct during the
pendency of the action. KIPP Phila. Charter Sch. v. Dep’t of Educ., 161 A.3d 430,
445 (Pa. Cmwlth. 2017) (KIPP), aff’d sub nom. Richard Allen Preparatory Charter
Sch. v. Dep’t of Educ., 185 A.3d 984 (Pa. 2018).
We came to that conclusion, however, only after emphasizing that “a litigant
cannot recover counsel fees from an adverse party unless there is express statutory
authorization, a clear agreement of the parties[,] or some other established
23
exception.” Id. at 443. We then engaged in a thorough discussion of the potential
authority for payment of fees in that matter, including a review of the circumstances
under which fee awards are authorized pursuant to Section 2503 of the Judicial Code,
42 Pa. C.S. § 2503, in declaratory judgment actions and mandamus actions.
KIPP, 161 A.3d at 444-45. Here, the Petition itself sets forth no specific basis on
which we can judge the legal sufficiency of Riverkeeper’s claim for fees and costs,
so neither we nor the Agencies can determine how to respond. Accordingly, we will
dismiss Count III of the Petition to the extent it requested payment of attorney’s fees
and costs, and we will allow Riverkeeper leave to replead that portion of Count III
with greater specificity, as the Agencies requested, should it choose to do so.
E. Claims Against the EQB
Finally, the Agencies argue that we should dismiss all counts of the Petition
against the EQB because Riverkeeper demands no action of and makes no
allegations against the EQB individually. They point out that, in the Petition itself,
Riverkeeper admits that “[the] EQB is not accused of direct wrongdoing but is
protectively included since it may be a necessary and indispensable party.”
(Agencies’ Br. at 35 (quoting Pet. ¶ 24).) They emphasize that DEP—not the
EQB—would issue the report and/or response Riverkeeper seeks. Riverkeeper
argues in response that the EQB is an indispensable party because, if DEP is required
to proceed as Riverkeeper requests, the EQB will be required to cooperate in the
regulatory process.
“A party is deemed to be indispensable when ‘his or her rights are so
connected with the claims of the litigants that no decree can be made without
impairing those rights.’” Polydyne, Inc. v. City of Phila., 795 A.2d 495, 496 (Pa.
Cmwlth. 2002) (quoting Vernon Twp. Water Auth. v. Vernon Twp., 734 A.2d 935,
24
938 n.6 (Pa. Cmwlth. 1999)). Here, the remaining claim (Count III) seeks a
declaratory judgment concerning the Agencies’ obligations to respond to the
Rulemaking Petition pursuant to the subsection (h) process and the EQB policy.
Although the immediate next step in that process is, as Riverkeeper has made clear,
a report to be issued by DEP alone, the EQB is also an active participant in the
petition process, both at this stage and at later stages. See 25 Pa. Code §§ 23.6(requiring DEP report to set forth date on which EQB will consider proposed
rulemaking and requiring DEP to make presentation at EQB
meeting), 23.8 (providing that EQB will consider proposed rulemaking, if any,
based on DEP report). As Riverkeeper points out, any relief affecting the rights or
obligations of DEP concerning the EQB policy will also affect the rights and
obligations of the EQB, and the two Agencies may have distinct positions and
interests regarding any forthcoming declaratory relief. (See Riverkeeper’s Br.
at 53-54.) Accordingly, the EQB is an indispensable party, and we will not dismiss
it from this matter.
IV. CONCLUSION
Based on the foregoing analysis, we will sustain the Agencies’ preliminary
objections in part and overrule them in part. First, with respect to Counts I (the Act)
and II (the Environmental Rights Amendment) of the Petition, we will sustain the
Agencies’ preliminary objections in the nature of a demurrer and dismiss
Riverkeeper’s claims. With respect to Count III (declaratory relief), we will overrule
the preliminary objections in the nature of a demurrer, both as to claims against DEP
and as to claims against the EQB. We will, however, sustain the preliminary
objection as to Riverkeeper’s request for attorney’s fees and dismiss the portion of
25
Count III requesting fees and costs and grant Riverkeeper leave to replead that
portion of Count III.
P. KEVIN BROBSON, Judge
26
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Delaware Riverkeeper Network, :
and the Delaware Riverkeeper, :
Maya van Rossum, :
Petitioners :
:
v. : No. 285 M.D. 2019
:
Pennsylvania Department of :
Environmental Protection of the :
Commonwealth of Pennsylvania and :
Environmental Quality Board of the :
Commonwealth of Pennsylvania, :
Respondents :
ORDER
AND NOW, this 12th day of January, 2021, upon consideration of
Respondents’ preliminary objections, the preliminary objections are SUSTAINED,
IN PART, and OVERRULED, IN PART, as follows:
1. Respondents’ preliminary objections in the nature of a demurrer to
Counts I and II of the Petition are SUSTAINED, and Counts I and II of the Petition
are DISMISSED.
2. Respondents’ preliminary objection to Count III of the Petition based
on insufficient specificity of a pleading is SUSTAINED as to Petitioners’ claim for
attorney’s fees and costs, the portion of Count III requesting attorney’s fees and costs
is DISMISSED, and Petitioners are hereby granted leave to amend Count III of the
Petition in accordance with the attached opinion.
3. In all other respects, Respondents’ preliminary objections are
OVERRULED.
4. Petitioners’ amended Petition for Review, should they choose to file
one, shall be filed within 30 days of the date of this Order.
P. KEVIN BROBSON, Judge