Opinion
No. 531 C.D. 2001.
Argued: September 12, 2001.
Filed: October 30, 2001.
Before: Honorable James R. Kelley, Judge; Honorable Jim Flaherty, Senior Judge; Honorable Jess S. Jiuliante, Senior Judge.
OPINION
Redstone Water Company (Redstone) petitions for review of an order of the Pennsylvania Public Utility Commission (PUC) which affirmed as modified the order of an administrative law judge (ALJ) directing Redstone to perform an engineering feasibility study to determine the most cost effective method of improving the quality of its drinking water and improving the water pressure.
Redstone squarely raises the issue on appeal of whether the PUC or the Department of Environmental Protection (DEP) has the authority to regulate the quality of water which the citizens of Pennsylvania drink. We vacate in part and reverse in part.
After Redstone experienced a water outage in January of 1999, seventeen of Redstone's customers (Complainants) filed formal complaints with the PUC expressing their dissatisfaction with the water service provided by Redstone. Specifically, Complainants were unhappy with both the water quality and the water pressure (R.R. 50a-63a).
On November 19, 2000, the complaints were consolidated by the ALJ. On June 21, 1999, the Office of Consumer Advocate (OCA) intervened in this matter on behalf of Complainants. Thereafter, hearings were held before the ALJ on April 4 and April 5, 2000.
The Complainants testified at the hearings that they are dissatisfied with the hardness of the water, which causes significant problems with their hot water heaters and forces them to frequently replace the heating element and eventually the water heater itself. Complainants also attribute the frequent replacement of bathroom fixtures to the buildup of minerals due to the hard water.
They also testified that the water can have an unpleasant chlorine or sulfur smell, an unpleasant taste and have "particles" floating in it. Some Complainants testified that they do not wash their white clothes in Redstone water because they are afraid that the water will stain their clothes. Complainants also stated that they are dissatisfied with the water pressure (ALJ's decision, Findings of Fact 4-15).
Terry Fought, a self-employed consulting engineer registered in Pennsylvania, investigated the complaints of Redstone's customers at the request of the OCA, which presented his March 13, 2000 testimony. He explained that the quality of water is evaluated according to its Primary and Secondary Maximum Contaminant Levels (MCLs) as set forth in the Federal Safe Drinking Water Act which has been adopted under the Pennsylvania Safe Drinking Water Act. Primary MCLs relate to whether the water is safe to drink, whereas Secondary MCLs relate to whether water is aesthetically acceptable. Redstone's water does not exceed the Primary MCLs. Therefore, it is safe to drink. However, Redstone's water exceeded the Secondary MCLs for total dissolved solids in 100% of the tests performed by Fought. Additionally, Fought's tests revealed that Redstone's water had a hardness, i.e. calcium carbonate concentration, of between 375 mg/l and 680 mg/l and a daily average of 451 mg/l. Water is considered "very hard" if it has a concentration of calcium carbonate that is 180 mg/l or greater. Fought explained that hard water shortens the useful life of hot water heaters, dishwashers, washing machines and other appliances that use water. However, there is no MCL threshold for water hardness.
As to the sulfate content, the water exceeded the MCLs in 73% of the tests and on 67% of the days. High sulfate levels cause the water to have a laxative effect, an unpleasant taste and a slow corrosive effect on concrete. Fought suggested that there are two actions that Redstone can take to reduce the hardness of its water: 1) construct a water treatment plant to soften the water; or 2) purchase water from a nearby municipal authority and mix it with Redstone water in order to dilute it. He also suggested that an engineering study should be conducted to study these options.
As to the water pressure, Fought testified that PUC regulations require normal operating pressures between 25 psi and 125 psi. Fought explained that Redstone's water pressure is maintained by a storage tank and that he calculated the "static pressure", which is the pressure when there is no water flow, by using a mathematical formula whereby he multiplied by 0.433 the difference in elevation between the water level in the storage tank and a reference point. Based on this formula, he estimated that, depending on the amount of water in the tank, at the high reference point in the water distribution system, the pressure was between 23.8 psi and 34.2 psi. At the low reference point, the pressure was between 132 psi to 142.4 psi. Therefore, Fought determined that Redstone is not in compliance with PUC water pressure regulations. Fought also testified that the lowest acceptable "fire flow" of water from a fire hydrant, which is 500 gallons per minute, cannot be pumped out of the fire hydrant at the highest point in the system without creating negative pressure, which would result in water being sucked back into the system. Additionally, the hydrants are connected to four-inch mains rather than the required six-inch mains. Fought recommended an engineering study to address the pressure problems. Additionally, he noted that Redstone does not have complete and up-to-date maps of its distribution system (R.R. 608a-624a).
Because the water pressure is maintained by a storage tank, which is a "gravity system", pressure at low points will be greater. At high points, the pressure will be lesser.
During cross-examination before the ALJ, Fought testified that building a treatment plant to soften the water is probably not a practical solution because of the expense involved in building the plant and having to get rid of "backwash water." (R.R. at 369a). Additionally, Fought admitted that he was provided with the results of a continuous recording pressure gauge that was placed at a high point in the system and that it recorded pressure between 40 psi and 43 psi. He also admitted that he took three actual pressure readings, but did not have them available. However, he did remember that at a high point in the system the actual reading was not below 25 psi. He also stated that his estimated pressure calculations were his "best guess" and that the low pressure estimate of 23.8 psi would only occur if the storage tank were empty (R.R. at 372a).
At the hearings before the ALJ, Redstone presented the testimony of Eugene B. Wolbert, who is a sanitarian supervisor for the DEP. He testified that there is no MCL for water hardness and that hard water is common in Western Pennsylvania. Redstone water did exceed the MCLs for total dissolved solids, but there is no DEP required treatment protocol for dissolved solids and the DEP has not required Redstone to initiate treatment for this problem. However, Wolbert stated that he supports the OCA's recommendation that an engineering study should be performed to address Redstone's water problems. When questioned about the possible solutions to the water problems, he explained that if softener is used to treat the hard water, sodium levels can increase to levels that are detrimental to people with circulatory problems. Also, softening of water can increase its corrosive effect and cause lead and copper to be dissolved into it more readily, thus causing the water to exceed primary MCLs and become unsafe to drink. As to sulfates, the DEP has no required treatment protocol and has not mandated that Redstone initiate treatment for this problem. Wolbert also testified that he believes Redstone water can be used for household purposes such as cooking, washing, bathing, etc. As to the water pressure, Wolbert stated that the DEP has done testing and found the pressure of Redstone water to be within acceptable limits (R.R. 430a-443a). When Wolbert was asked about the DEP's fire hydrant regulations, he explained that the six-inch main requirement only applies to new water systems.
On cross-examination, Wolbert said that he did not know if the pressure had ever been tested in the house at the highest point in the system. Rather, the DEP conducts random pressure tests.
Redstone also presented the testimony of William David Shrader, who is an engineer employed by the PUC in its Bureau of Fixed Utility Services. On February 26, 1999, the PUC received a letter from a group of Redstone customers called the Citizens Advisory Council asking the PUC to investigate their complaints. In response to that letter, Shrader conducted an on-site investigation on April 21, 1999. Shrader visited several houses and found the water to be clear, of good taste and of adequate pressure. Therefore, he concluded that the complaints were unfounded (R.R. at 474a-498a).
After considering the above testimony, the ALJ determined that Redstone's water consistently exceeds the secondary MCLs and that, for this reason, Redstone has failed to provide adequate water service in violation of Section 1501 of the Public Utility Code, which requires that every public utility shall furnish and maintain adequate, efficient, safe, and reasonable service.
Accordingly, the ALJ ordered Redstone to have an engineering study performed within twelve months for the purpose of determining "the most cost effective method for bringing the water that it supplies to its customers into compliance with federal and state drinking water standards, and to assure that its system provides that water at pressures that comply with applicable regulatory standards." (ALJ's Decision, p. 21).
Redstone filed exceptions to the initial decision of the ALJ with the PUC, which issued a decision on February 9, 2001. The PUC found that Redstone water is unfit for basic domestic purposes and that, for this reason, Redstone has failed to provide adequate water service. In support of its decision, the PUC cited numerous PUC decisions where it ordered utilities to conduct engineering studies in order to improve water quality. Relying on its own precedent, the PUC affirmed the order of the ALJ and further ordered that Redstone shall: 1) submit reports to the OCA at three month intervals outlining its efforts and progress on the engineering study; and 2) apply for funding from the Small Drinking Water Engineering Services program administered by the DEP within 30 days. This appeal followed.
Our scope of review of a PUC decision is limited to determining whether constitutional rights have been violated, an error of law has been committed or whether the PUC's findings are supported by substantial evidence. Montour Trail Council v. Pennsylvania Public Utility Commission, 547 Pa. 367, 690 A.2d 703 (1997).
Redstone argues that the PUC's order should be reversed because the regulation of water quality is outside the PUC's jurisdiction. Rather, Redstone argues that the DEP has primary and exclusive jurisdiction over water quality. Additionally, Redstone argues that the order of the PUC is erroneous as a matter of law and is not supported by substantial evidence.
Article 1, Section 27 of the Pennsylvania Constitution provides that:
The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania's natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.
In order to implement this constitutional directive, the Legislature enacted the Pennsylvania Safe Drinking Water Act (Act), Act of May 1, 1984, P.L. 206. The Act provides, in relevant part:
(a) Findings. — The General Assembly finds and declares that:
(1) An adequate supply of safe, pure drinking water is essential to the public health, safety and welfare and that such a supply is an important natural resource in the economic development of the Commonwealth.
(2) The Federal Safe Drinking Water Act provides a comprehensive framework for regulating the collection, treatment, storage and distribution of potable water.
(3) It is in the public interest for the Commonwealth to assume primary enforcement under the Federal Safe Drinking Water Act.
(b) Declaration. — It is the purpose of this act to further the intent of section 27 of Article 1 of the Constitution of Pennsylvania by:
(1) 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 those standards . . .
35 P. S. § 721.2
Furthermore, Section 5(b) of the Act provides, in relevant part, that:
(a) State to assume primary enforcement. — The department [Department of Environmental Protection] 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 Federal act . . .
(b) Department to establish compliance procedures. — The department 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. . . .
(c) Department to enforce drinking water standards. — The department shall have the power and its duties shall be to issue such orders and initiate such proceedings as may be necessary and appropriate for the enforcement of drinking water standards, any other provision of law notwithstanding. These actions shall include, but are not limited to, the following:
(1) To institute in a court of competent jurisdiction, proceedings against any person to compel compliance with the provisions of this act, or the drinking water standards or conditions of permits issued hereunder.
(2) To initiate criminal prosecutions, including issuance of summary citations by agents of the department.
(3) To do any and all things and actions not inconsistent with any provision of this act for the effective enforcement of this act, rules and regulations or permits issued hereunder.
35 P. S. § 721.5 (emphasis added).
Section 300f(2) of the Federal Safe Drinking Water Act addresses secondary drinking water regulations:
The term "secondary drinking water regulation" means a regulation which applies to public water systems and which specifies the maximum contaminant levels which, in the judgment of the Administrator, are requisite to protect the public welfare. Such regulations may apply to any contaminant in drinking water (A) which may adversely affect the odor or appearance of such water and consequently may cause a substantial number of the persons served by the public water system providing such water to discontinue its use, or (B) which may otherwise adversely affect the public welfare. Such regulations may vary according to geographic and other circumstances.
With regard to the quality of services provide by utilities in the Commonwealth, the Public Utility Code (Code) provides, in relevant part:
Every public utility shall furnish and maintain adequate, efficient, safe, and reasonable service and facilities, and shall make all such repairs, changes, alterations, substitutions, extensions, and improvements in or to such service and facilities as shall be necessary or proper for the accommodation, convenience, and safety of its patrons, employees, and the public . . .
66 Pa.C.S.A. § 1501. Additionally, the Code defines "service" as:
"Service." Used in its broadest and most inclusive sense, includes any and all acts done, rendered, or performed, and any and all things furnished or supplied, and any and all facilities used, furnished, or supplied by public utilities, or contract carriers by motor vehicle, in the performance of their duties under this part to their patrons, employees, other public utilities, and the public, as well as the interchange of facilities between two or more of them . . .
66 Pa. C.S. 102. Thus, the regulation of water service is vested with the PUC.
As to water quality, this Court has recognized that "[w]ater quality in Pennsylvania is statutorily regulated by the provisions of the Pennsylvania Safe Drinking Water Act . . . and the Federal Safe Drinking Water Act . . . Enforcement of those statutes is specifically vested in DER and the Federal Environmental Protection Agency." Rovin, D.D.S., v. Pennsylvania Public Utility Commission, 502 A.2d 785, 787 (Pa.Cmwlth. 1986) (emphasis in original). However, the Code does provide a procedure for the PUC to assess water quality:
The Department of Environmental Protection (DEP) was formerly called the Department of Environmental Resources (DER).
(b) Purity of water supply. — The commission may certify to the Department of Environmental [Protection] any question of fact regarding the purity of water supplied to the public by any public utility over which it has jurisdiction, when any such question arises in any controversy or other proceeding before it, and upon the determination of such question by the department incorporate the department's findings in its decision.
66 Pa.C.S.A. § 318.
Additionally, the case of Country Place Waster Treatment Company, Inc. v. Pennsylvania Public Utility Commission, 654 A.2d 72 (Pa.Cmwlth. 1995) addresses the distinction between water quality and water service. In Country Place, the PUC found that a sewage treatment plant emitting an odor akin to rotten eggs did not present an air quality problem. Rather the PUC found that this was a violation of Section 1501 of the Public Utility Code, i.e., the sewage treatment plant was not providing adequate service because of the rotten egg smell. Thus, the PUC found that, pursuant to Section 1501, it did have jurisdiction to regulate the treatment plant for this problem. In vacating the order of the PUC, this Court, relying on Rovin, held that "nowhere in the Law is there any grant of authority to the PUC by the Legislature, either directly or indirectly, to regulate air pollution emanating from a public utility." Id. at. 76.
The PUC and the OCA argue that, based on prior PUC cases, the PUC can have jurisdiction over water quality and that, when the quality of water is not sufficient, this can constitute inadequate service and subject a water utility to the PUC's jurisdiction under Section 1501 of the Code. In its brief, the PUC argues that "[t]he use of the permissive "may" [in Section 318 of the Code] suggests that questions of water purity may be resolved by the [Public Utility] Commission in lieu of certifying such questions to the DEP through application of state and federal safe drinking water standards." (PUC's brief, p. 14). We disagree.
The PUC has determined that Redstone failed to provide adequate service to its customers based on its finding that the quality of the water is inadequate. However, the quality of water is regulated by the Pennsylvania and Federal Safe drinking Water Acts. Section 5(b) of the Pennsylvania Act specifically vests the DEP with the power to "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" and to "issue such orders and initiate such proceedings as may be necessary and appropriate for the enforcement of drinking water standards." 35 P. S. § 721.2(b) and (c). The Legislature makes no such delegation of authority to the PUC with regard to water quality. Additionally, we interpret the use of the term "may" in Section 318 of the Code as giving the PUC the option to ask the DEP to determine the quality of water if water quality is an issue in a case before the PUC. Section 318 does not grant the PUC concurrent jurisdiction over water quality. Rather, it reaffirms the Legislative intent set forth in Section 5(b) of the Pennsylvania Safe Drinking Water Act that the DEP is the state agency vested with the power to assess water quality. In Rovin and County Place, this Court recognized that the PUC cannot regulate air or water quality. We reaffirm those holdings in the case sub judice and find that the PUC exceeded its statutorily defined jurisdiction in this matter when it attempted to regulate the quality of Redstone's water, which the DEP had already determined to be adequate. Because the PUC exceeded its jurisdiction, its order must be vacated.
As to the water pressure, this is obviously a service rather than a quality problem, and Redstone does not argue to the contrary. Rather, Redstone argues that the PUC's finding that Redstone failed to provide adequate service because of inadequate water pressure is not supported by substantial evidence.
In East Goshen Township and West Goshen Township v. Pennsylvania Public Utility Commission, 486 A.2d 550 (Pa.Cmwlth. 1985), "petitioners presented testimony of a hydrology expert who opined that under hypothetical conditions, using Great Valley's fire hydrants during a fire would make it impossible to deliver adequate water to residential customers. No testimony was presented to show this had actually happened and there was testimony that the West Goshen Fire Company had used fire hydrants to fight major fires." Id. at 552. For this reason, the PUC rejected an ALJ's initial decision that the township was providing inadequate service, and this Court affirmed the PUC's decision.
Similarly, in the case sub judice, the only evidence that Redstone's water was not under adequate pressure was a best guess based on a mathematical formula. Also, Fought's testimony concerning negative pressure and the use of a fire hydrant was based on a supposition rather than actual evidence. All the actual pressure readings submitted into evidence and discussed by the expert witnesses revealed that Redstone's water was of adequate pressure. Therefore, the finding of the PUC that Redstone failed to provide water service at adequate pressure is not supported by substantial evidence and its order must be reversed.
Accordingly, the order of the PUC requiring Redstone to perform an engineering study to address the water quality issues is hereby vacated because the PUC exceeded its jurisdiction. The order of the PUC requiring Redstone to perform an engineering study to address the water pressure issues is hereby reversed because its decision was not supported by substantial evidence. The remainder of the order, which is not the subject of this appeal, is left intact.
ORDER
AND NOW, October 30, 2001, the order of the Public Utility Commission affirming as modified the initial decision of the Administrative Law Judge requiring Redstone to perform an engineering study for the purpose of addressing the quality issues is hereby VACATED for lack of jurisdiction. The order of the Public Utility Commission affirming as modified the initial decision of the Administrative Law Judge requiring Redstone to perform an engineering study for the purpose of addressing the water pressure issues is hereby REVERSED.
JIM FLAHERTY, Senior Judge