        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Delaware Riverkeeper Network, the        :
Delaware Riverkeeper, Maya Van           :
Rossum, and Member, Kathleen             :
Stauffer,                                :
                       Petitioners       :
                                         :   No. 525 M.D. 2017
            v.                           :   Argued: June 4, 2018
                                         :
Pennsylvania Department of               :
Environmental Protection,                :
                        Respondent       :

BEFORE:     HONORABLE ROBERT SIMPSON, Judge
            HONORABLE ELLEN CEISLER, Judge
            HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                         FILED: JULY 25, 2018

            Before this Court are preliminary objections to a petition for review
(Petition) in this Court’s original jurisdiction. The Petition is in the nature of a
mandamus action seeking declaratory and injunctive relief.


            Petitioners are Delaware Riverkeeper Network, Delaware Riverkeeper
Maya van Rossum (Ombudsman), and Member Kathleen Stauffer (Stauffer)
(collectively, Riverkeeper).   Riverkeeper seeks to compel the Pennsylvania
Department of Environmental Protection (DEP) to undertake environmental cleanup
of the Bishop Tube Site, a contaminated 13.7-acre tract in East Whiteland Township,
Chester County (Site). Riverkeeper also contends nearby groundwater and waters
of the Commonwealth are incurring damage from spreading of the contamination
beyond the Site. Riverkeeper alleges inaction by DEP in violation of the Clean
Streams Law,1 the Hazardous Sites Cleanup Act (HSCA),2 and Article I, Section 27
of the Pennsylvania Constitution (Environmental Rights Amendment).


                In its preliminary objections, DEP contends this Court lacks jurisdiction
over the claims in the Petition. Alternatively, DEP asserts Riverkeeper lacked
standing to file the Petition. DEP also argues the Petition is barred by DEP’s pending
federal lawsuit against some potentially responsible third parties.


                After briefing and argument, the preliminary objections are ripe for
disposition. For the reasons that follow, we overrule DEP’s preliminary objections.


                                        I. Background
                For purposes of our disposition of DEP’s preliminary objections, the
following facts are accepted as set forth in the Petition.3


                                         A. Petitioners
                Delaware Riverkeeper Network is a citizens’ nonprofit membership
organization, some of whose members live near the Site. Pet., ¶¶1, 12. Ombudsman
is a privately funded ombudsman responsible for protecting the waterways in the


       1
           Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. §§691.1-691.1001.

       2
           Act of October 18, 1988, P.L. 756, as amended, 35 P.S. §§6020.101-6020.1305.

       3
         In ruling on preliminary objections, courts accept as true all well-pled allegations of
material facts, as well as all inferences reasonably deducible from the facts. Stilp v.
Commonwealth, 910 A.2d 775 (Pa. Cmwlth. 2006), aff’d, 974 A.2d 491 (Pa. 2009). For
preliminary objections to be sustained, it must appear with certainty that the law will permit no
recovery, and any doubt must be resolved in favor of the non-moving party. Id.


                                                2
Delaware Valley watershed.          Id., ¶14.   The common mission of Delaware
Riverkeeper Network and Ombudsman is to protect and restore the Delaware River
and its tributaries, habitats, and resources. Id., ¶11. Little Valley Creek, a tributary
of Valley Creek, is part of the Delaware River watershed. Id., ¶13.


             Stauffer is a member of Delaware Riverkeeper Network. Id., ¶17. She
lives about 100 yards from the Site; its spreading contaminants are endangering her,
her family, and her property. Id.


                           B. Contamination at the Site
             The main hazardous contaminants at the Site are trichloroethylene
(TCE) and other chlorinated volatile organic compounds and metals. Id., ¶¶2, 23.
High metal concentrations are present, causing or threatening harm to Little Valley
Creek.   Id., ¶24. All environmental investigations at the Site indicate heavy
contamination.    Id., ¶¶32-33.     For example, the statewide health standard for
acceptable TCE concentration in groundwater is five parts per billion, but the
concentration at and near the Site is “in the hundreds of thousands.” Id., ¶35. A
2008 federal evaluation of the Site by the Agency for Toxic Substances and Disease
Registry (ATSDR) confirmed heavy concentrations of TCE and its breakdown
products, nitric and hydrofluoric acids, along with various oils and other hazardous
materials that were not properly handled and disposed of at the Site. Id., ¶33.




                                           3
                 C. DEP’s Alleged Inactivity Concerning the Site
             DEP knew about chlorinated solvent releases at the Site beginning in
the 1980s. Id., ¶21. It began investigating the Site as an HSCA site in 1999. Id.,
¶20.


             DEP entered into a consent agreement in 2005 with a potential
commercial developer, in which the developer agreed to remediate the Site to safe
levels of contamination for non-residential development. Id., ¶36. The developer
installed a remediation system intended to remove some contaminated vapors at the
Site. Id., ¶¶37-38. However, in 2011, a contractor for the developer damaged the
remediation system, rendering it inoperable. Id., ¶46. DEP waited until 2014 to
serve a notice that the damage violated the consent agreement and potentially
exacerbated the Site contamination. Id., ¶¶48, 52. Further, DEP took no action to
enforce compliance by the developer concerning restoration of the remediation
system. Id., ¶¶54-55. Moreover, DEP did not oppose the developer’s subsequent
amendment of its development plan from commercial to residential use, proposing
to construct hundreds of residential units at the Site with no additional provisions for
cleanup of the contamination to levels safe for residential use of the Site. Id., ¶¶27,
129.


             By 2008, DEP had in its possession extensive subsurface studies and
tests of the Site and its surroundings. Id., ¶33. Those studies and tests identified “‘a
well-defined geology and hydrogeology for both the [S]ite and the down gradient
off-site residential area of concern … where a large chlorinated solvent plume has
been identified through sampling and mapped via groundwater modeling.’” Id.



                                           4
(quoting the ATSDR’s 2008 evaluation of the Site). In its 2008 evaluation, the
ATSDR determined DEP had enough information at that time to begin cleanup of
the Site. Id., ¶34. Nonetheless, rather than start or cause the start of cleanup, in 2009
DEP executed a consent order and agreement with a potentially responsible party,
which required only that the party conduct further investigative activities at the Site.
Id., ¶43.


             In 2008, DEP filed a civil action in a federal district court (Federal
Action) seeking cleanup cost contribution from some potentially responsible parties.
Id., ¶6; Prelim. Obj., ¶30; DEP’s Br. at 21. However, Riverkeeper alleges DEP did
not act diligently to pursue that action, allowing it to be stayed for eight years. Pet.,
¶7. In the interim, although some potentially responsible parties performed further
investigation concerning the extent of contamination at the Site, there was “virtually
no substantive cleanup work on the Site.” Id., ¶8.


             The Site was formally identified on the Pennsylvania Priorities List of
Hazardous Sites for Remedial Response in 2010. Id. Nonetheless, DEP allowed its
pending Federal Action against potentially responsible parties to remain stayed for
seven more years. Id., ¶7. The stay was lifted in the Federal Action in 2017. Id.,
¶7. DEP filed an amended complaint adding more parties, and discovery began. Id.


                D. Harm Resulting from DEP’s Alleged Inactivity
             Riverkeeper avers DEP exhibited “manifest neglect and dilatory
conduct” for at least 17 years, by failing to undertake or require remediation of the
contamination at the Site.       Id., ¶2.   Riverkeeper alleges the known source



                                            5
contamination at the Site could have been removed in a period of months, and DEP
needlessly allowed it to remain at the Site without remediation for decades. Id., ¶79.
As a result, the contamination spread, and continues to spread, beyond the Site to
nearby groundwater and to Little Valley Creek, an Exceptional Value Stream. 4 Id.,
¶¶2, 57-58, 70-71, 73.


              In addition, residents living near the Site reported to DEP a number of
suspicious “cancers, tumors, illness and deaths,” including brain cancer suffered by
Stauffer’s teenage daughter, that may be linked to the Site contamination and its
migration beyond the Site. Id., ¶¶60-62. To date, the ATSDR has linked TCE
exposure to cancers of the kidneys, liver, and blood, as well as numerous other
illnesses ranging from headaches, dizziness, and sleepiness to facial nerve damage,
irregular heartbeat, kidney and liver damage, coma, and death. Id., ¶¶65-66.


              Riverkeeper asserts there are available remediation efforts that could be
beneficial and that immediate interim action by DEP is needed. Id., ¶¶73, 75.
Riverkeeper specifically alleges that there is no adequate remedy at law. Id., ¶95.


                            E. Riverkeeper’s Legal Claims
              Riverkeeper seeks mandatory injunctive relief to require DEP to
undertake cleanup of the Site, including immediate interim measures.


              In Count I of the Petition, Riverkeeper alleges DEP has mandatory
duties under the Clean Streams Law to investigate and act on complaints concerning

       4
         An Exceptional Value Stream is the highest purity classification under Pennsylvania
water quality standards. Pet., ¶102 (citing 25 Pa. Code §93).


                                             6
water pollution, and to protect the waters of the Commonwealth. Id., ¶¶99-100, 104
(citing 35 P.S. §§691.5(b)(6),5 691.3056). Riverkeeper avers that DEP failed and is
still failing to perform its statutory duties under the Clean Streams Law, with the
result that the contamination at the Site moved downstream to nearby groundwater
and Little Valley Creek. Id., ¶¶104-13. Riverkeeper contends DEP thereby also
violated and continues to violate a parallel duty imposed by the Environmental
Rights Amendment,7 which safeguards the public’s right to clean water. Id., ¶114.


                In Count II, Riverkeeper alleges DEP has mandatory duties under the
HSCA to assess and clean up hazardous sites, provide emergency response to
environmental disasters, and protect citizens from the release of dangerous
contaminants. Id., ¶¶121, 126-27, 131 (citing 35 P.S. §§6020.301,8 6020.5019).
Riverkeeper asserts that DEP violated and continues to violate those duties by failing


       5
           Section 5(b) of the Clean Streams Law.

       6
           Section 305 of the Clean Streams Law.

       7
           The Environmental Rights Amendment provides:

                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 public 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.

PA. CONST. art. I, §27.

       8
           Section 301 of the HSCA.

       9
           Section 501 of the HSCA.


                                                7
for at least 17 years to undertake or compel environmental cleanup of the Site. Id.,
¶¶122, 125, 128-29. As a result, surrounding groundwater and Little Valley Creek
are incurring ongoing damage. Id., ¶¶123, 130.


             In Count III, Riverkeeper alleges the Environmental Rights
Amendment imposes an affirmative fiduciary duty on DEP to preserve and maintain
natural resources, including pure water. Id., ¶¶136-37 (citing Pa. Envtl. Def. Found.
v. Commonwealth, 161 A.3d 911 (Pa. 2017); Robinson Twp. v. Commonwealth, 83
A.3d 901 (Pa. 2013)). Riverkeeper contends DEP violated that duty by failing to
undertake remediation and by failing to timely disclose information to the public
concerning the Site. Id., ¶¶138-42.


             In Count IV, Riverkeeper seeks a declaration that DEP is in violation
of its duties under the Clean Streams Law, the HSCA, and the Environmental Rights
Amendment. Id., ¶¶144-46. Riverkeeper also seeks an award of attorney and expert
fees incurred in this litigation. Id., ¶147.


                                       II. Issues
             In its preliminary objections, DEP asserts several legal arguments for
dismissal of the Petition. DEP argues this Court lacks subject matter jurisdiction
because Riverkeeper failed to join necessary parties.       Further, DEP contends
Riverkeeper lacks standing to sue because it suffered no damage in its own right.
DEP also argues relief in mandamus is not available because the acts Riverkeeper
seeks to compel are discretionary. Additionally, DEP avers Riverkeeper failed to




                                               8
attach certain writings to the Petition as required by the Pennsylvania Rules of Civil
Procedure.


             DEP’s remaining preliminary objections involve a common issue of
whether DEP acted diligently regarding remediation at the Site. DEP demurs to all
counts of the Petition, insisting Riverkeeper cannot maintain its action because DEP
is acting diligently by pursuing contribution claims in federal court against some
potentially responsible parties. In a related argument, DEP separately demurs to
Counts I-III, contending Riverkeeper cannot obtain mandatory injunctive relief
because DEP is acting diligently. DEP also demurs separately to Count IV, arguing
its diligence eliminates any case or controversy for purposes of Riverkeeper’s
requested relief.


                                   III. Discussion
                            A. DEP’s Legal Arguments
                                1. Necessary Parties
             DEP argues this Court lacks subject matter jurisdiction over the Petition
because Riverkeeper failed to join as respondents the potentially responsible third
parties that may ultimately be liable for the costs of remediation. DEP contends any
judgment in this case will necessarily affect the rights of such parties, and thus, they
are indispensable in this action. We find no merit in DEP’s argument.


             In determining whether a party is indispensable, courts consider
whether absent parties have rights or interests related to the claim, whether those
rights or interests are essential to the merits of the claim, and whether justice can be



                                           9
afforded in disposing of the claim without violating due process rights of the absent
parties. Diess v. Pa. Dep’t of Transp., 935 A.2d 895 (Pa. Cmwlth. 2007).


             DEP cites CRY, Inc. v. Mill Service, Inc., 640 A.2d 372 (Pa. 1994) in
support of its joinder argument. However, DEP’s reliance on CRY is misplaced.
CRY concerned failure to join DEP itself. Because the case involved issues affecting
DEP’s regulatory authority, DEP was an indispensable party. Here, by contrast,
DEP is already a party.


             Riverkeeper seeks to compel DEP to perform duties Riverkeeper
alleges are mandatory under state statutory and constitutional provisions.
Riverkeeper is not asking this Court to determine the potentially responsible parties,
prescribe the appropriate cleanup methodologies, or fix the ultimate costs. This
Court’s resolution of this litigation will not affect any rights or defenses the
potentially responsible parties may assert in enforcement actions by DEP, including
the pending Federal Action.


             Notably, the record does not indicate whether DEP has yet identified
all potentially responsible parties.    It appears DEP has chosen to seek cost
reimbursement from less than all potentially responsible parties in the Federal
Action, as it is legally permitted to do. Requiring Riverkeeper to include all
potentially responsible parties in this action would usurp DEP’s right, duty, and
discretion to determine the appropriate parties from whom to seek reimbursement.
Moreover, requiring Riverkeeper to identify and include all potentially responsible
parties would impose an impossible burden on Riverkeeper that would render



                                         10
illusory the private right of action the legislature intended to confer in the Clean
Streams Law and the HSCA.


              DEP additionally posits that in the absence of potentially responsible
parties, the remedies Riverkeeper seeks in this litigation would “likely result in a
less comprehensive remediation.” DEP’s Br. at 47. DEP fails to explain this
contention. Moreover, that consideration is not among the legal factors set forth
above that courts weigh in determining whether joinder of a party is necessary.
Significantly, it is also a question of fact that cannot be determined on preliminary
objections.


                   2. Riverkeeper’s Standing under the HSCA
              DEP argues the Petition should be dismissed for lack of standing under
the HSCA. Regarding Delaware Riverkeeper Network and Ombudsman, DEP
contends they did not plead actual or threatened harm directly to them, but only to
some unidentified members living near the Site. DEP asserts that environmental
contamination and release of hazardous substances do not constitute actual property
damage or injury to Delaware Riverkeeper Network and Ombudsman.


              Regarding Stauffer, DEP concedes she did allege personal injury and
property damage, but argues she did not support those allegations with sufficient
averments of fact. Further, DEP points out Stauffer is a party to the Petition as a
member of Delaware Riverkeeper Network, not as an individual. Thus, DEP
contends any injury to her cannot confer standing to the organization under the
HSCA. We reject DEP’s arguments concerning standing.



                                         11
               The HSCA confers standing on any person who experiences or is
threatened with personal injury or property damage from the release of a hazardous
substance. 35 P.S. §6020.1115(a).10 Under the HSCA, a “person” includes not only
an individual, but also a corporation, association, or other legal entity. 35 P.S.
§6020.103.11 Accordingly, all three Petitioners are “persons” under the HSCA. Id.


               Regarding the requirement of actual or threatened harm, Riverkeeper
correctly observes that Pennsylvania allows an environmental rights organization to
bring a cause of action without pleading any injury to itself, if it alleges that at least
one of its members is suffering immediate or threatened injury. See, e.g., Robinson
Twp. (Delaware Riverkeeper Network and Ombudsman had standing to bring action
based on threatened injury to members and their properties arising from Marcellus
Shale operations). For purposes of resolving DEP’s preliminary objections, we
conclude Riverkeeper sufficiently alleged environmental contamination, its effect
on members of Delaware Riverkeeper Network, including Stauffer, and ongoing
threats of damage to property and health. Accordingly, Riverkeeper pled sufficient
facts to establish standing to pursue the Petition.


               3. Availability of Mandamus to Compel Action by DEP
                            a. Pleading a Mandamus Claim
               DEP contends its duties concerning environmental cleanups are
discretionary and not subject to a mandamus action. DEP’s argument is insufficient
to dispose of the Petition at the preliminary objection stage.

      10
           Section 1115 of the HSCA.

      11
           Section 103 of the HSCA.


                                           12
             A mandamus action will lie to compel performance of a mandatory,
non-discretionary governmental duty. See Diess. Importantly, it will also lie to
compel action where the government agency is failing to act at all. Chanceford
Aviation Props., LLP v. Chanceford Twp. Bd. of Supervisors, 923 A.2d 1099 (Pa.
2007).


             In Diess, this Court overruled preliminary objections to a petition for
review that alleged DEP failed to perform its duties to develop and enforce a
program to investigate and clean up hazardous sites in Pennsylvania. This Court
found there were factual disputes concerning DEP’s actions to remediate the
contamination at issue.


             As discussed in section B below, there are also issues of fact here
concerning DEP’s conduct relating to the Site. As in Diess, this Court cannot resolve
such issues on preliminary objections.


                     b. Nature of DEP’s Mandatory Duties
             Significantly, DEP acknowledges it does have some non-discretionary
duties under the HSCA, the Clean Streams Law, and the Environmental Rights
Amendment. Specifically, DEP admits the HSCA imposes a mandatory duty to
develop programs to investigate and remediate contamination by hazardous
substances. It admits the Clean Streams Law imposes a mandatory duty to receive
and act on complaints of water pollution and other violations.        It admits the
Environmental Rights Amendment imposes a mandatory duty to prevent




                                         13
degradation of the environment and to serve as a trustee for Pennsylvania’s natural
resources.


             DEP insists it has carried out its mandatory duties with regard to the
Site, by proceeding diligently toward remediation since 1981. However, DEP
acknowledges that is a long time. As discussed in section B below, whether DEP
has been diligent in its efforts since 1981 presents questions of fact that cannot be
resolved on preliminary objections.


             DEP concedes that a mandamus claim will lie where a state actor has
done nothing or “virtually” nothing toward performing a mandatory duty. DEP’s
Br. at 38. As set forth above, Riverkeeper pleads numerous facts supporting its
contention that DEP failed to act to remediate the contamination at the Site.
Moreover, Riverkeeper expressly alleges DEP performed “virtually no substantive
cleanup work on the Site.” Pet., ¶8. Thus, Riverkeeper pleads DEP inaction
squarely within the parameters DEP concedes will support a mandamus action.


             Nonetheless, DEP attempts to distinguish Diess by arguing that the
petition for review in that case survived preliminary objections because the
petitioner alleged DEP did nothing at all, while here, Riverkeeper only alleges DEP
did almost nothing. We reject DEP’s argument. If the difference between nothing
and almost nothing were deemed meaningful in pleading a mandamus claim under
the HSCA or the Clean Streams Law, DEP could always avoid such a claim by any
act, however minimal, toward remediation. Thus, if doing almost nothing could
constitute diligence, it would render illusory the private rights of action in both the



                                          14
HSCA and the Clean Streams Act, by eliminating the requirement of diligent efforts
by DEP in order to forestall such private actions.


             As this Court explained in Diess, a mandamus action will lie where an
agency is not fulfilling a mandatory duty to enforce a statute, even though it will not
lie to compel specific discretionary methods of such enforcement.                Here,
Riverkeeper is not seeking to impose on DEP a specific plan or method of
enforcement concerning remediation at the Site. Rather, it is pursuing claims in
mandamus because it alleges DEP has been “‘sitting on its hands’” regarding
enforcement and remediation efforts at the Site. Riverkeeper’s Br. at 28-29 (quoting
Chanceford, 923 A.2d at 1108) (additional citations omitted).


                              c. Alternative Remedies
             DEP further asserts that a mandamus action will not lie because
Riverkeeper has alternative remedies that are appropriate and adequate. According
to DEP, Riverkeeper may intervene in the Federal Action. It may also offer
comments in the administrative process once DEP proposes a response to the
contamination at the Site. DEP suggests these alternatives “provide [Riverkeeper]
with a meaningful opportunity to contribute to the development of the best possible
remediation plan for the Site.” DEP’s Br. at 39. This argument lacks merit.


             Waiting for a remediation plan and then commenting on it will not
afford the relief Riverkeeper is seeking, which is to compel DEP to move forward
to create and implement such a plan. After waiting since 1981 to see a proposed
remediation plan, while watching the contamination at the Site spread to the



                                          15
surrounding groundwater and Little Valley Creek, Riverkeeper decries DEP’s
suggested wait-and-comment remedy.


             Similarly, Riverkeeper disputes the sufficiency of DEP’s proposed
remedy of intervention in the Federal Action against some potentially responsible
parties. In fact, Riverkeeper disputes DEP’s suggestion that intervention would be
permitted at all in the Federal Action. Further, Riverkeeper contends it cannot obtain
a meaningful remedy in that action. It is not seeking recovery of costs against the
potentially responsible parties, which is the only relief DEP is requesting in the
Federal Action. Merely commenting on DEP’s cost claims in that action will not
afford the relief Riverkeeper is seeking here, which is to compel DEP to move
forward with remediation. Additionally, Riverkeeper argues that the continuation
and increase of contamination in groundwater and Little Valley Creek constitute
irreparable harm not amenable to the alternative remedies DEP suggests. We agree,
and we reject DEP’s alternative remedy argument.


             4. Failure to Attach Certain Writings to the Petition
             Rule 1019(i) of the Pennsylvania Rules of Civil Procedure provides:


             When any claim or defense is based upon a writing, the pleader
             shall attach a copy of the writing, or the material part thereof,
             but if the writing or copy is not accessible to the pleader, it is
             sufficient so to state, together with the reason, and to set forth
             the substance of the writing.

Pa. R.C.P. No. 1019(i) (emphasis added).




                                          16
             DEP urges this Court to dismiss the Petition because Riverkeeper failed
to attach certain documents. Specifically, DEP argues Riverkeeper failed to attach
a 2005 agreement between DEP and the proposed developer of the Site, subsequent
2007 and 2010 amendments to the agreement, and public notices concerning the
agreement and amendments. DEP asserts this failure violates Rule 1019(i) and
requires dismissal of the Petition. There is no merit in DEP’s argument.


             As Riverkeeper points out, it did attach to the Petition the most recent
version of the agreement at issue. Riverkeeper also explains that it is not seeking to
enforce any version of the agreement or any remedy provided in any version of the
agreement; rather, Riverkeeper’s main complaint regarding the agreement is DEP’s
alleged failure to publicize it. Thus, Riverkeeper correctly argues the agreement is
not the basis of the Petition and so is not within the purview of Rule 1019(i). See,
e.g., Dep’t of Transp. v. Bethlehem Steel Corp., 368 A.2d 888 (Pa. Cmwlth. 1977)
(preliminary objection based on failure to attach written contract overruled where
contract was not essence of cause of action).


             In addition, DEP is a party to and in possession of the agreement and
its amended versions, making attachment to the Petition unnecessary. See Narcotics
Agents Reg’l Comm. v. Am. Fed’n of State, Cty. & Mun. Emps., 780 A.2d 863 (Pa.
Cmwlth. 2001) (writings in possession of opposing party need not be attached to
pleading). In fact, DEP published the documents on its website. Further, the
agreement and its amendments are exhibits in an administrative appeal challenging
their validity, a link to which Riverkeeper provided in its brief in opposition to DEP’s
preliminary objections. Thus, the documents are public in nature and need not be



                                          17
attached to the Petition. See Dep’t of Envtl. Res. v. Peggs Run Coal Co., 423 A.2d
765 (Pa. Cmwlth. 1980) (pursuant to Pa. R.C.P. No. 1019(d), petition for review did
not have to attach DEP agreement).


                B. Fact Questions Regarding DEP’s Alleged Diligence
                       1. DEP’s Averments of Diligent Conduct
               Although both the Clean Streams Law and the HSCA provide private
rights of action, both also contain exceptions precluding private actions where DEP
“‘has commenced and is diligently prosecuting’ a civil action in state or Federal
court to require compliance with the applicable statute ….” DEP’s Br. at 2 (quoting
35 P.S. §§691.601(e),12 6020.1115(b)13) (emphasis added). DEP argues Riverkeeper
is barred from asserting its claims, because DEP is diligently prosecuting its Federal
Action. DEP argues it does not need prompting from Riverkeeper through the
Petition, because DEP filed the Federal Action long before Riverkeeper involved
itself in seeking action at the Site. DEP’s argument is without merit.


               DEP acknowledges it placed the Federal Action in civil suspense from
2009 to 2017. However, DEP points out that the parties reported periodically to the
federal court during that period on the status of the case. Notably, those reports were
at first submitted monthly, and then quarterly; eventually, reports were filed only
biannually.




      12
           Section 601 of the Clean Streams Law.

      13
           Section 1115 of the HSCA.


                                              18
              The Federal Action became active again in 2017. DEP amended its
complaint, and discovery commenced. DEP strenuously insists its course of conduct
constituted diligent prosecution of the Federal Action.


              Both parties acknowledge that Pennsylvania courts have yet to construe
the diligent prosecution bar under the Pennsylvania statutory and constitutional
provisions at issue in this case. DEP relies, by analogy, on federal court decisions
discussing diligent prosecution under federal environmental laws.14 However, such
federal decisions are not directly applicable for three reasons. First, they relate to
federal laws, not Pennsylvania state laws. Second, they do not arise in the context
of a body of law with an overarching state constitutional mandate for protection of
the environment. Third, even under analogous federal laws, the question of diligent
prosecution is one of fact. It cannot be decided as an issue of law on preliminary
objections. See Grp. Against Smog & Pollution, Inc. v. Shenango Inc., 810 F.3d
116 (3d Cir. 2016). Therefore, applying the definition of diligence as analyzed in
federal decisions cannot eliminate the question of fact as to whether DEP’s course
of conduct was diligent in this case. Thus, federal decisions do not support dismissal
of the Petition.


              DEP also insists its conduct has conformed to what it characterizes as
national norms, under which, according to DEP, major remediation efforts

       14
          DEP cites Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., 484 U.S. 49 (1987);
GASP v. Shenango Inc., 810 F.3d 116 (3d Cir. 2016); Karr v. Hefner, 475 F.3d 1192 (10th Cir.
2007); Friends of Milwaukee’s Rivers v. Milwaukee Metro. Sewerage Dist., 382 F.3d 743 (7th
Cir. 2004), cert. denied, 544 U.S. 913 (2005); N. & S. Rivers Watershed Ass’n, Inc. v. Town of
Scituate, 949 F.2d 552 (1st Cir. 1991); Cmty. of Cambridge Envtl. Health & Dev. Group v. City
of Cambridge, 115 F. Supp. 2d 550 (D. Md. 2000); Williams Pipe Line Co. v. Bayer Corp., 964 F.
Supp. 1300 (S.D. Iowa 1997).


                                             19
commonly take several decades. Like DEP’s analogy to federal court decisions, its
reference to purported national norms fails to support its preliminary objections.
Like the federal decisions, the supposed national norms do not relate to remediation
governed by Pennsylvania state law; nor do they concern enforcement of a
constitutionally protected right to a clean environment. They also do not eliminate
the issues of fact surrounding DEP’s diligence in pursuing remediation efforts at the
Site.    Moreover, the persuasive value of applying such supposed “norms” is
questionable, as it encourages a bootstrapping argument that seeks to justify ongoing
dilatory conduct by reliance on previous inaction.


                 DEP filed the Federal Action in 2008. It then stayed the action for nine
years. Not until 2017 did it lift the stay and file its amended complaint. Riverkeeper
avers that during those nine years, DEP took no action to begin remediation at the
Site, despite having sufficient studies and reports by 2008 to allow it to do so, and
despite knowledge that the contamination was migrating beyond the Site and
threatening groundwater and Little Valley Creek, an Exceptional Value Stream.
Notably, DEP also did not take any emergency interim action, although effective
interim measures were available, and the HSCA provides for implementing such
measures. See 35 P.S. §6020.505(b)15; Dep’t of Envtl. Res. v. Bryner, 636 A.2d 227
(Pa. Cmwlth. 1993). By pleading these averments, Riverkeeper raises questions of
fact concerning DEP’s diligence that are sufficient to survive DEP’s preliminary
objections.




        15
             Section 505 of the HSCA.


                                             20
          2. Inapplicability of Statutory Bars to Riverkeeper’s Claims
             As explained above, DEP contends the entire Petition is barred by
DEP’s alleged diligence in pursuing the Federal Action against some potentially
responsible parties. However, even assuming DEP diligently pursued the Federal
Action, the pendency of that action does not bar Counts I, III, and IV of the Petition.


             In the Federal Action, DEP asserts claims under federal law and the
HSCA. Pet., ¶6; DEP’s Br. at 21. At most, diligence by DEP in pursuing the Federal
Action might bar claims against DEP asserted here by Riverkeeper in Count II under
the HSCA, the only statute common to both actions. However, Riverkeeper also
asserts claims under the Clean Streams Law and the Environmental Rights
Amendment. Neither is “the applicable statute” in the Federal Action, so DEP’s
alleged diligence in that action cannot bar claims against it under the Clean Streams
Law and the Environmental Rights Amendment. Moreover, the Environmental
Rights Amendment contains no language that would preclude legal action because
of DEP’s alleged diligence in pursuing an enforcement action against third parties.


                          3. Mandatory Injunctive Relief
             DEP argues the Petition should be dismissed because a mandatory
injunction is an extreme remedy that Riverkeeper will not be able to obtain. We
discern no merit in this argument.


             DEP contends Riverkeeper cannot establish several required elements
for obtaining a mandatory injunction, including that irreparable harm will occur
without the injunction, that greater injury will result from denying the injunction



                                          21
than from granting it, and that an injunction will restore the status quo. All of these
elements present questions of fact that cannot be resolved on preliminary objections.


             Moreover, Riverkeeper does allege facts that, if proven, could establish
all of the elements necessary to obtain injunctive relief. Notably, Riverkeeper avers
both actual and threatened disease and even death resulting from the ongoing
contamination at and around the Site, as well as untold harm to groundwater and an
Exceptional Value Stream. The Petition supports these averments with facts and
statistics. It provides clear notice to DEP of the nature of Riverkeeper’s claims. This
is sufficient at the preliminary objection stage.


             DEP also argues that a mandatory injunction will do more harm than
good because DEP can progress faster toward remediation without having to comply
with any judicial order that might be entered in this case. Like the other issues raised
by DEP, this is a question of fact not appropriate for disposition on preliminary
objections. Further, DEP fails to support its suggestion that a judicial directive to
start undertaking some remediation efforts would somehow slow down such efforts.


             Significantly, DEP acknowledges Riverkeeper might be entitled to seek
mandatory injunctive relief if it averred that DEP’s pursuit of remedial action was
“totally unsatisfactory.” DEP’s Br. at 42. DEP incorrectly contends Riverkeeper
did not offer such an averment. Riverkeeper may not have used that specific phrase,
but that is the overarching basis of the entire Petition.




                                           22
                          4. Actual Case or Controversy
             In another iteration of its diligence argument, DEP contends its alleged
diligence in investigating and addressing the contamination at the Site eliminates
any case or controversy for purposes of Riverkeeper’s request for relief. This
contention lacks merit because it again depends on issues of fact.


             Riverkeeper argues there is an actual case or controversy supporting its
claims. As Riverkeeper observes, the parties disagree whether DEP has been
diligent in its actions. The Petition avers current and threatened harm to persons and
property resulting from DEP’s alleged ongoing inactivity at the Site. In addition,
Riverkeeper points out that despite DEP’s claims that it actively investigated the
Site, its failure to undertake or cause remediation at the Site for two decades could
constitute a failure to comply with its statutory and constitutional duties. See
Chanceford (mandamus would lie to compel statutorily-mandated action despite
agency’s averment it was already investigating what action to take).


             Riverkeeper’s averments are sufficient to plead a case or controversy.
Accordingly, we overrule DEP’s preliminary objection to Riverkeeper’s request for
relief.


                                  IV. Conclusion
             DEP’s legal arguments for dismissal lack merit. Riverkeeper did not
fail to join any necessary parties, and this Court does not lack subject matter
jurisdiction. Riverkeeper has standing to sue. Riverkeeper’s requested relief in
mandamus is not unavailable as a matter of law. Riverkeeper did not fail to attach



                                         23
to the Petition any writings required by the Pennsylvania Rules of Civil Procedure.
DEP’s various arguments based on its averment of diligence in pursuing remediation
all fail because the issue of whether DEP acted diligently is a question of fact that
cannot be resolved on preliminary objections. Accordingly, we overrule all of
DEP’s preliminary objections.




                                       ROBERT SIMPSON, Judge



Judge Fizzano Cannon did not participate in the decision in this case.




                                         24
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Delaware Riverkeeper Network, the      :
Delaware Riverkeeper, Maya Van         :
Rossum, and Member, Kathleen           :
Stauffer,                              :
                       Petitioners     :
                                       :     No. 525 M.D. 2017
             v.                        :
                                       :
Pennsylvania Department of             :
Environmental Protection,              :
                        Respondent     :


                                 ORDER

             AND NOW, this      25th       day of   July, 2018, the Pennsylvania
Department of Environmental Protection’s (DEP) preliminary objections are
OVERRULED. DEP shall file an answer to the Petition for Review within 30 days
of the date of this Order.




                                     ROBERT SIMPSON, Judge
