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Respondent
502 A.2d 785;
1986 Pa. Commw. LEXIS 1840
November 14, 1985, Argued
January 7, 1986, Decided
PRIOR HISTORY:
[***1]
Appeal from the Order of the Pennsylvania Public Utility Commission in case of
Pennsylvania Public Utility Commission v. Philadelphia Suburban Water Company,
No. R-842592.
DISPOSITION: Affirmed.
COUNSEL:
Thomas A. Beckley, with him,
Jeffrey W. Davis, Of Counsel:
Beckley
& Madden, for petitioner.
John A. Levin, Assistant Counsel, with him,
Michael Bardee, Assistant Counsel,
Albert W. Johnson, Deputy Chief Counsel, and
Charles F. Hoffman, Chief Counsel, for respondent.
Thomas P.
Gadsden, with him,
Alan L. Reed, Of Counsel:
Morgan, Lewis
& Bockius, for intervenor, Philadelphia Suburban Water Company.
JUDGES: Judges MacPhail and Doyle, and Senior Judge Barbieri, sitting as a panel of
three. Opinion by Judge MacPhail.
OPINIONBY: MacPHAIL
OPINION:
[*72]
[**785] Sheldon R. Rovin, D.D.S. (Petitioner) seeks review of an order of the
Pennsylvania Public Utility Commission (PUC) dismissing his complaint that the
Philadelphia Suburban Water Company (PSWC) failed to provide him with adequate,
safe and reasonable water service in violation of Section 1501 of the Public
Utility Code (Code),
66 Pa. C.S.
§ 1501. We affirm. n1
– – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – –
n1 Pursuant to Pa. R.A.P. 1952(b), Petitioner and the PUC entered into a
stipulation agreeing that neither the record nor a certified list of its
contents would be filed with the court.
– – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – –
[***2]
Section 1501 of the Code provides in
full:
Every public utility shall furnish and maintain adequate, efficient, safe, and
reasonable service and facilities, and shall make all such repairs,[*73] changes, alterations, substitutions, extensions, and improvements in or to
such service and facilities as shall be necessary or proper[**786] for the accommodation, convenience, and safety of its patrons, employees, and
the public. Such service also
shall be reasonably continuous and without unreasonable interruptions or delay.
Such service and facilities shall be in conformity with the regulations and
orders of the commission.
Subject to the provisions of this part and the regulations or orders of the
commission, every public utility may have reasonable rules and regulations
governing the conditions under which it shall be required to render service.
Any
public utility service being furnished or rendered by a municipal corporation
beyond its corporate limits shall be subject to regulation and control by the
commission as to service and extensions, with the same force and in like manner
as if such service were rendered by a public utility. The commission shall have
[***3] sole and
exclusive jurisdiction to promulgate rules and regulations for the allocation
of natural or artificial gas supply by a public utility.
Petitioner states in his brief that the question involved in this appeal is:
Does the PUC have authority to decide a complaint wherein a water company
customer alleges that the practices of the company
regarding fluoridation of the water it supplies its customers are not
‘adequate, . . . safe and reasonable’ as required by [Section 1501 of the Code]?
Petitioner also states that the PUC answered that question in the negative. He
asks this Court to reverse
[*74] the PUC order and remand the case to the PUC for a decision
“on the merits”.
Petitioner is a
dentist residing in PSWC’s service area. Petitioner filed a complaint with the
PUC alleging that some of PSWC’s customers receive fluoridated water while
others do not. Petitioner claims that the service provided by PSWC is unsafe,
inadequate and unreasonable in that (1) those customers not receiving
fluoridated
water are denied the benefits of fluoridated water and (2) those customers who
are receiving fluoridated water might be harmed if their pediatricians
[***4] prescribe a fluoride supplement.
Following a hearing, an Administrative Law Judge (ALJ) recommended that
Petitioner’s complaint be dismissed on the basis that the Code is devoid of any
specific language authorizing the PUC to
require utilities to fluoridate their water supply. The PUC adopted the ALJ’s
recommendation, noting that the fluoridation issue properly would lay before
the Department of Environmental Resources (DER). A timely appeal to this Court
followed.
Petitioner’s primary argument on appeal is that the PUC misconceived the nature
of his complaint. Petitioner avers that the PUC
dismissed his complaint on the basis that the issue raised was whether PUC
could direct PSWC to fluoridate its water. Petitioner alleges that the issue
really presented in his complaint was whether an unreasonable and potentially
unsafe situation exists, in violation of Section 1501 of the Code, when PSWC
provides only some of its customers with fluoridated water. n2
– – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – –
n2 We
must note, however, that Petitioner stated in his complaint filed with the PUC:
The proposed rate increase by the Philadelphia Suburban Water Company does not
assure that the water provided will be ‘safe and adequate’ as required by
statute. If the increase is approved, then assurance should be given that the
water will be ‘safe and adequate’ which by
definition means adding the proper substances to it.
I should like assurance that the proper substances for the complete health of
the people drinking the water will, in fact, be added. (Emphasis added.)
– – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – –
[***5]
[*75] It appears that PSWC obtains most of its water from sources owned and operated
by PSWC. That water is
not fluoridated. Approximately 7% of the water supply comes from the Bucks
County Water and Sewer Authority and the Chester Municipal Authority. Water
from those sources is fluoridated. Petitioner contends that PSWC’s customers
will not know whether the water they are using is fluoridated and that there is
a
possibility that a dentist’s recommendation [**787] of a
fluoride application to a patient whose water is fluoridated
could cause fluorosis because the total amount of
fluoride might then exceed permissible levels. This, Petitioner says, renders the water
unsafe.
At the direction of the ALJ, PSWC did offer testimony indicating that its water
was safe and that laboratory services were available and used to make that
determination. Petitioner did not
prove or offer to prove that the
fluoride levels in any of PSWC water distributed to its customers exceeded safe limits.
The ALJ
did refer to the Petitioner’s precise argument on this point in his recommendation
to the PUC and concluded that since Petitioner failed to offer any evidence
that any
[***6] PSWC customer had been afflicted with fluorosis because of the
fluoride levels in the
water and since the company did offer testimony that the water was safe, there
was nothing in the record that would warrant PUC intervention. We agree.
Petitioner frames the issue as whether in providing
water containing varying levels of
fluoride to some of its customers, PSWC is violating its statutory obligations as above
set forth. We believe the correct issue is whether
PSWC furnished adequate, efficient,
[*76] safe and reasonable water
service to its customers.
See
Barone v. Pennsylvania Public Utility Commission, 86 Pa. Commonwealth Ct. 393, 485 A.2d 519 (1984). It is apparent that Petitioner herein is not complaining about the quality of
service but rather is
complaining about the quality of the water.
Water
quality in Pennsylvania is statutorily regulated by the provisions of the Pennsylvania
Safe Drinking Water Act, Act of May 1, 1984, P.L. 206, 35 P.S.
§§ 721.1 — 721.17 and the Federal Safe Drinking Water Act,
42 U.S.C. §§ 300(f) — 300(j)-10. Enforcement of those statutes is specifically vested in DER
and the Federal Environmental Protection Agency.
[***7]
It is provided in Section 318 of the Code, 66 Pa. C.S.
§ 318 that the PUC
“may certify to the DER 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.
. . .” Petitioner concedes in his brief to this Court that
“[h]e did not present the PUC with a claim that the composion of PSWC’s drinking
water violated any DER-administered statute or DER-promulgated regulation. Similarly, [Petitioner’s] complaint raised no issue
regarding the ‘purity’ of PSWC’s water supply.” Petitioner’s Brief at 14. Accordingly, there was no need for the PUC to
certify any question of fact regarding the fluoridation issue to DER.
Petitioner did not otherwise complain about the quality of service
PSWC provides. In our opinion, therefore, he did not sustain his burden of
proving a violation of Section 1501 of the Code, and the PUC properly dismissed
his complaint.
Order
The order of the Pennsylvania Public Utility Commission, Docket No. R-842592,
dated December 10, 1984, is affirmed.
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