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...)
2

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).
3

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.) 
4

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 
5

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)3to 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. 
6

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 
7

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 
8

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].
9

(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, 
10

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 
11

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.
12

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
13

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 
14

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).
15

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.
16

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 
17

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 Act8and 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.
18

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...)
19

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.
20

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.
21

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 
22

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 
23

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 
24

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, 
25

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 
26

Count III requesting fees and costs and grant Riverkeeper leave to replead that 

portion of Count III.

P. KEVIN BROBSON, Judge
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 :

O R D E R

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