Amended Complaint Frompovicz v. Department of Environmental Protection Et Al

Case 5:17-cv-02790-JFL Document 13-1 Filed 10/16/17 Page 1 of 59
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA
STANLEY F. FROMPOVICZ, JR., )

V ALERIY AV. FROMPOVICZ, )
Stanley F. Frompovicz, Jr. and )
Valeriya V. Frompovicz as guardians of their )
minor child, NICOLE A. FROMPOVICZ )
)
Plaintiff, )
vs. )
)
PENNSYLVANIA DEPARTMENT OF )
ENVIRONMENTAL PROTECTION;
DAVID HISSNER, Individually and in his capacity
)
)
F\LED
as manager of the Pottsville District Office of the ) OCl 16 2017
Pennsylvania Department of Environmental )
Protection; ) KA1E~KMAN,
' c1eg.rt<
Oep.
LISA DANIELS, Individually and in her capacity as ) By_,I -
Director of the Bureau of Safe Drinking Water for )
the Pennsylvania Department of Environmental )
Protection; )
DAWN HISSNER, Individually and in her capacity )
as Chief of the Division of Operations Monitoring )
and Complaince of the Pennsylvania Department of )
Environmental Protection; )
LYNNE SHEETZ, Individually and in her capacity )
as Manager of Operations Monitoring and )
Compliance of the South Central Regional Office )
of the Pennsylvnaia Department of Environmental )
Protection; )
ROD NESMITH, lndividaully and in his capacity )
as Regional Manager of the bureau of Safe Drinking )
Water of the South Central Regional Office of the )
Pennsylvania Department of Environmental )
Protection; )
JEFFREY ALGYER, lndvidually and in his )
capacity as Regional Manager of the Bureau of Safe )
Water Drinking Act of the South Central Regional )
Office of the Pennsylvania Department of )
DAVID MITTNER, Indivually and in his capacity )
as Chief of the Division of Permits of the Bureau of )
Safe Drinking Water of the Pennsylvania )
Department of Environmental Protection; )
PETER MANGAK, Individually and in his capacity )
as Environmental Protection Specialist and Chief )

Enforcement Officer of the Northeast Regional )
of the Pennsylvania Department of Environmental )
Protection; )
TODD OSTIR, Individually and in his capacity as )
Chief Monitoring and Compliance Officer of the )
Bureau of Safe Drinking Water of the Northeast )
Regional Office of the Pennsylvania Department of )
BRIAN YAGIELLO, Individually and in his capacity)
as Regional Manager for the Bureau of Safe )
Drinking Water of the Northeast Regional Office of )
Protection; )
BRIAN BUSHER, Individually and in his capacity as)
Chief Permit Engineeer of the Bureau of Safe )
Drinking Water of the Northeast Regional Office of )
Protection; )
JASON MINNICH, Individually and in his capacity )
as Chief of the Drinking Water Reporting System )
of the Pennsylvania Department of Environmental )
Protection; )
SHAWN CABLE, Individually and in his capacity as )
Technical and Financial Services of the Pennsylvania)
JOSHUA KRAMMES, Individually and in his )
capacity as Sanitarian of the Pennsylvania Department)
of Environmental Protection; )
THOMAS SHAUL, Individually and in his capacity )
as Chief of Technical Services of the Pennsylvania )
THOMAS FREDRJCCI, Individually and in his )
capacity as a member of the Pennsylvania Department)
of Environmental Protection; )
CHAD A REISCH, Individually and in his capacity )
as geotechnical hydrogeologist of the Pennsylvania )
PADEP DOES 1-9, Indvidually and in their official )
capacities as members of the Pennsylvania )
PENNSYLVANIA DEPARTMENT OF )
AGRICULTURE; )
LYDIA JOHNSON, Individually and in her )
Capacity as Director of the Bureau of Food Safety )
and Laboratory Services of the Pennsylvania )
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Department of Agriculture; )
GARY LANDIAK, Individually and in his capacity )
as Plant Inspector of Region 7 of the Pennsylvania )
Department of Agriculture; )
JUDITH MILLER, Individually and in her capacity )
as Food Safety Supervisor of the Pennsylvania )
Department of Agriculture; and )
PADOA DOES 1-10, Individually and in their official)
capacities as members of the Pennsylvania )
Department of Agriculture, )
)
Defendants. )
AMENDED COMPLAINT
Plaintiffs, Stanley F. Frompovicz, Jr. ("Plaintiff' or "Frompovicz"), Valeriya V.
Frompovicz ("Valeriya Frompovicz") and Nicole A. Frompovicz ("Nicole Frompovicz")
in a prose capcity, file this Amedend Complaint against Defendants, Pennsylvania
Department of Environmental Protection ("DEP"), David Hissner ("Manager of Pottsville
PADEP"), Lisa Daniels ("Director ofPADEP Bureau of Safe Drinking Water" or
"Daniels"), Dawn Hissner ("Chief of Monitoring and Compliance of PADEP"), Lynne
Sheetz ("Manager of Operations Monitoring and Compliance of PADEP" or "Sheetz"),
Rod Nesmith ("Regional Manager ofPADEP Bureau of Safe Drinking Water" or
"Nesmith"), Jeffrey Algyer ("Regional Manager of PADEP Bureau of Safe Water
Drinking Act" or "Algyer"), David Mittner ("Chief of Division of Permits of the Bureau
of Safe Drinking Water of PADEP" or "Mittner"), Peter Mangak ("Environmental
Protection Specialist and Chief Enforcement Officer ofPADEP" or "Mangak"), Todd
Ostir ("Chief Monitoring and Compliance Officer of Bureau of Safe Drinking Water of
PADEP" or "Ostir"), Brian Yagiello ("Regional Manager for Bureau of Safe Drinking
Water of PADEP" or "Yagiello"), Brian Busher ("Chief Permit Engineer of Bureau of
Safe Dinking Water of PADEP" or"Busher"), Jason Minnich ("Chief of the Drinking
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Water Reporting System of PADEP" or "Minnich"), Shawn Cable ("Technical and
Financial Services" or "Cable"), Joshua Krammes ("Sanitarian" or "Krammes"), Thomas
Shaul ("Chief of Technical Service" or "Shaul"), Thomas Fredricci ("Fredricci"), Chad
Reisch ("Reisch"), PADEP DOES 1-9, individually and in their official capacities as
members of the Pennsylvania Department of Environmental Protection, Pennsylvania
Department of Agriculture ("DOA"), Lydia Johnson ("Director of the Bureau of Food
Safety and Laboratory Services of P ADOA" or "Johnson"), Gary Landiak ("Plant
Inspector of PADOA" or "Landiak"), Judith Miller ("Food Safety Supervisor of
PADOA" or "Miller"), PADOA DOES 1-10, individually and in their official capacities
as members of the Pennsylvania Department of Agriculture jointly and serverally.
Plaintiff avers as follows:
PARTIES
1. Plaintiff Stanley Frompovicz, d/b/a FAS owns a Property located in South
Manheim Township, Schuylkill County, Pennsylvania, and an Operations Permit issued
by PA DEP to remove and resell spring water for the bottled water industry.
2. PlaintiffValeriya V. Frompovicz is the wife and dependent of Plaintiff Stanley F.
Frompovicz Jr. Valeriya Frompovicz is a housewife, and has no other means of support,
other than through marital funds. Valeriya Frompovicz is also a co-owner of the property
on which the water operation is located.
3. Plaintiff, Nicole Anne Frompovicz is the daughter and minor dependent of
Plaintiff, Stanley F. Frompovicz Jr. Nicole Frompovicz is a minor child, and has no other
means of support, other than through her father, Stanley F. Frompovicz Jr
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4. Defendant, Pennsylvania Department of Environmental Protection ("DEP") is a
governmental agency established and operates pursuant to the statutes and authority of the
Commonwealth of Pennsylvania.
5. Defendant, David Hissner is employed by the PADEP as Manager of the Pottsville
District Office and reports to Defendant, Todd Ostir. David is husband to Defendant Dawn
Hissner. He is sued in his official and individual capacity.
6. Defendant, Lisa Daniels is employed by the PADEP as the Director of the Bureau
of Safe Drinking Water. She is sued in her official and individual capacity.
7. Defendant, Dawn Hissner is employed by the PADEP as the Chief of the Division
of Operations Monitoring and Compliance. She is in charge of the oversight of all water
permit holders statewide. Dawn is the wife of Defendant David Hissner. It is believed
she reports to Defendant, Lisa Daniels. She is sued in her official and individual
capacity.
8. Defendant, Lynne Sheetz is employed by the PA DEP as the Manager of
Operations Monitoring and Compliance of the South Central Regional Office. It is
believed she reports to Defendant, Dawn Hissner. She is sued in her official and
individual capacity.
9. Defendant, Rod Nesmith is employed by the PA DEP as Regional Manager of the
Bureau of Safe Drinking Water of the South Central Regional Office. He is sued in his
official and individual capacity.
10. Defendant, Jeffrey Algyer is employed by the PA DEP as Regional Manager of
the Bureau of Safe Water Drinking Act of the South Central Regional Office. He is
specifically in charge of statewide Operations and Monitoring. He supervises regional
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managers of compliance and enforcement. It is believed he reports to Defendant, Dawn
11. Defendant, David Mittner is employed by the PA DEP as Chief of the Division of
Permits of the Bureau of Safe Drinking Water. He is responsible for the equitable
enforcement ofDEP rules and regulations across the entire state of Pennsylvania. He is
sued in his official and individual capacity.
12. Defendant, Peter Mangak is employed by the PA DEP as Environmental
Protection Specialist and Chief Enforcement Officer of the Northeast Region. It is
believed he reports to Defendant, Dawn Hissner. He is sued in his official and individual
capacity.
13. Defendant, Todd Ostir is employed by the PA DEP as Chief Monitoring and
Compliance Officer of the Bureau of Safe Drinking Water of the Northeast Regional
Office. It is believed he reports to Defendant, Dawn Hissner. He is sued in his official
and individual capacity.
14. Defendant, Brian Yagiello is employed by the PA DEP as Regional Manager for
the Bureau of Safe Drinking Water of the Northeast Regional Office. It is believed he
reports to Defendant, David Mittner. He is sued in his official and individual capacity.
15. Defendant, Brian Busher is employed by the PA DEP as Chief Permit Engineer of
the Bureau of Safe Drinking Water of the Northeast Regional Office. It is believed he
reports to Defendant, Brian Yagiello. He is sued in his official and individual capacity.
16. Defendant, Jason Minnich is employed by the PA DEP as Chief of the Drinking
Water Reporting System. He is responsible for the equitable enforcement ofDEP rules
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and regulations across the entire state of Pennsylvania. It is believed he reports to
Defendant, Dawn Hissner. He is sued in his official and individual capacity.
17. Defendant, Shawn Cable is employed by the PA DEP in the Technical and
Financial Services Section. He is sued in his official and individual capacity.
18. Defendant, Joshua Krammes is employed as sanitarian for the Pennsylvania
Department of Environmental Protection. It is believed he reports to Defendant, David
19. Defendant, Thomas Shaul is employed by the PA DEP as Chief of Technical
Services. He is sued in his official and individual capacity.
20. Defendant, Thomas Fredricci is employed by the Pennsylvania Department of
Environmental Protection. He is sued in his official and individual capacity.
21. Defendant Chad Reisch is employed by the Pennsylvania Department of
Environmental Protection as a geotechnical hydrogeologist. He is sued in his official and
individual capacity.
22. Defendants, PADEP DOES 1-9 are individual members of the Pennsylvania
Department of Environmental Protection. They are sued in their official and individual
capacities.
23. Defendant, Pennsylvania Department of Agriculture ("DOA") is a governmental
agency established and operates pursuant to the statutes and authority of the
Commonwealth of Pennsylvania.
24. Defendant, Lydia Johnson is employed by the PA DOA as Director of the Bureau
of Food Safety and Laboratory Services. She is sued in her official and individual
capacity.
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25. Defendant, Gary Landiak is employed by the PA DOA as Plant Inspector of
Region 7. It is believed he reports to Defendant, Judith Miller. He is sued in his official
and individual capacity.
26. Defendant, Judith Miller is employed by the PA DOA as Food Safety Supervisor.
She is sued in her official and individual capacity.
27. Defendants PADOA DOES 1-10 are individual members of the Pennsylvania
Department of Agriculture. They are sued in their official and individual capacities.
28. All above named individuals are state actors who supervise and authorize actions of
the Department of Environmental Protection and the Pennsylvania Dept. of Agriculture.
They are charged with the responsibility of ensuring the uniform and legal application and
enforcement of the policies and laws of the Commonwealth of Pennsylvania and the United
States.
29. Pennsylvania Department ofEvironmental Protection and Pennsylvania
Department of Agriculture are specifically sued in their official capacity.
30. Invidious violation of a persons civil rights overcome the grant of sovereignty
afforded in the Eleventh Amendment. Equal protection of the class of one, and the violation
of due process rights are both invidious acts of discrimination, thus subjecting both state
agencies to liability
JURISDICTION AND VENUE
31. This action arises under the Constitution and laws of the United States, including
Article III, Section 1 of the United States Constitution, and is brought under and pursuant to
42 U.S.C. §1983.
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32. The Jurisdiciton of this Honorable Court is invoked pursuant to 28 U.S.C. §§ 1331,
1343, 1367, 2201; encompassing all questions matters, issues and claims prescribed herein.
33. Venue is proper in this Honorable Court pursuant to 28 U.S.C. § 139l(b) since
some of the subject matter events or omissions occurred in this judicial district and/or the
some of the named Defendants are grounded within said district.
FACTS
34. In August 2001, Plaintiff d/b/a FAS applied for a permit with the DEP NERO to
operate a Bulk Water Hauling and Spring Water Source at the following location: at 71 W.
Jefferson Lane, Auburn, Pa. 17922.
35. On April 16, 2002, the DEP issued the foregoing Pemit to FAS.
36. At all times from2002 to present, FAS has continued to operate under the terms and-
conditions of the DEP Permit issued April 16, 2002.
37. M.C. Resourse Development Company a/k/a M.C. Resource Development, Inc.
("MCR"), an entity owned by James J. Land Jr. ("Land"), applied for and received a similar
permit for Pine Valley Springs ("PV") on April 28, 2003 from the same office and region as
did FAS in the foregoing averment, DEP NERO.
38. On or about April 15, 2007, FAS began to supply permitted water to Niagara
Bottling Co. ("Niagara"), at its new facility located in Breinigsville, Lehigh County,
Pennsylvania. The plant is located within the jurisdiciton of DEP NERO.
39. In September of2008, Wissahickon Bottling Co. ('Wissahickon"), the former parent
company of MCR was dissolved in bankruptcy proceedings, and thereafter, MCR had no
outlet for its PV well water source. The Wissahickon bottling plant was under the
jurisdiciton ofDEP SCRO.
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40. At all times from the issuance of the DEP permit to MCR in 2002, up until the
Wissahickon demise, DEP allowed MCR to supply and for Wissahickon to receive, water
from MC R's PV site in a "RAW" state.
41. DEP regulations have only ever allowed RAW water to be shipped to a bottling
facility which owns or controls the source. DEP does not allow "RAW' water to be shipped
to any other customer.
42. A review ofDEP records reveals that the difference is signified by the entrance of
the word "purchased water" category on the bottlers' DEP Permit. If the source is closely
held, the water is not considered to be "purchased."
43. Subsequent to the demise ofWissahickon, DEP individual defendants have
continued to arbitrarily and capriciously allow MCR to ship RAW water to outside
purchasers. All other major bottlers either have purchased or in some way control their
water sources, and as such their RAW water is only supplied to their own plants.
44. Bottlers who can meet the criteria to allow the acceptance of RAW water enjoy an
advantage over entities that must comply with the regulations regarding the shipping of
"FINISHED WATER" to a bottling plant. If the water is shipped as RAW then no
monitoring or testing, and, most importantly, NO REPORTING oftest results of the RAW
water is mandated/required.
45. DEP, by and through the indvidual DEP defendants herein, (1) manifested blatant
disregard of its own stated policy and regulations; and (2) allowed the illegal sales and
transport of raw water from the PV site to non-controlling bottlers. Thus allowing special
and deferential treatment for one favored entity and source; Land!MCR and PV.
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46. Land, by and through various business entities, operates three (3) water supply
sources, MCR, known as Pine Valley, Temple Springs and Tower Springs. All of the
foregoing operate under the direct control of Land.
47. This special treatment demonstarted to Land by DEP resulted in a huge benefit to
accrue to MCR, et al.. Specifically the DEP's total failure to enforce any actions against
MCR, despite total awareness of the illegality, while at the same time enforcing the exact
same rules against a similar situated entity, mainly FAS. This practice continues and also
continues to shock the conscience.
48. The unequal enforcement of regulations specifically harmed FAS by allowing
Land/MCR to flaunt quality regulations. Whereas, FAS was required to operate under the
onerous rules. PV was not required to follow the law. The disparity in enforcement resulted
in substantial cost savings to PV, and thus imparted an unfair business advantage to MCR,
and against FAS, a direct competitor.
49. Upon information and belief, personal and political relationships exist between the
principal ofMCR (Land) and certain political persona and department top level
management have allowed this illegality to continue for 10 years.
50. MCR, by taking advantage of this disparate enforcement ofDEP regulations,
replaced FAS as a principle supplier of water to Niagara in 2009.
51. In a letter/reJ)Orl dated 4/14/2009 to DEP NERO ("4/!4/09 Letter"), Land informed
DEP that MCR would begin to supply water to Niagara. The 4/!4/09 Letter: (l) included an
inspection report of'(:he PV site, authored by Kenneth Justice PE.; (2) included pictures of
the PV site/facility as attachments; and (3) was received by Ken Thomas of the DEP's
Pottsvile District Oft;ice. The pictures attached to the 4/14/09 Letter, clearly showed illegal
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operating conditions existing at the PV site/facility. At a minimum, the well heads were
below the adjacent ground level and no functional ozonation system was present, thus the
required FINISHED water could not possibly be shipped. No inspection was made by DEP,
and yet, MCR was allowed to operate, and take the Niagara business from FAS.
52. In an inspection report dated October 27, 2002 , DEP inspector Jason Minnich, who
now works directly for Dawn Hissner, clearly pointed out to Wissahickon and MCR
representatives, that as long as the water was being shipped only to the closely held
Wissahickon plant, AND WAS LISTED ON TI!E WISSAHICKON PLANT PERMIT, the
water could be shipped raw ("10/27/02 Inspection Report"). Minnich made the foregoing
notation on the 10/27/02 Inspection Report. The Notice was given because Minnich
observed that the pennittee, MCR was not following the terms and conditions of the
controlling DEP issued permit, specifically, a requirement to ozonate the water in each truck
before it left the PV site. Again, if the water was only shipped to the Wissahickon plant,
MCR was in compliance, however, if the water was shipped othenvise then said action
would constitute noncompliance to the controlling permit.
53. Upon informaiton and belief, MCR wished to ignore the ozonation requirement,
specifically because the element, bromide, was present in the raw water at the PV site.
54. When water containing bromide is subjected to ozone, bromate, a carcinogen is
produced. Bromide is present, specifically because the source water is pumped from 300 ft,
deep wells, and is not spring water as is required by FDA labelling laws. DEP permit
documents confmn that the water is drawn from deep wells at the PV site.
55. At meeting in early 2007 between personnel from DEP Central and Wissahickon
management and attorneys, DEP gave notice that MCR had to separate their PV pennit from
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the permit issued for Wissahickon's Hamburg, PA plant. The plant at that site (Hamburg,
PA) was now owned and operated by Trident, Inc.
56. Despite the foregoing absolute order, DEP took no further enforcement action
against MCR; ever. This same violation has been overlooked for 10 years. The same
requirement and condition would apply to water being shipped from PV to Crossroads
Beverage ,CB, Niagara, or Ice River. Defendant Dawn Hissner is the person in charge of
this enforcement.
57. In 2009, DEP again remindedMCR that finished water had to be shipped in order to
keep PV's DEP permit in place. DEP should have clearly reiterated the same message given
to Land in 2002, and 2007. In order to ship water to a "customer'', not himself, he had to
abide by the Pine Valley Permit in total, and ship ONLY FINISHED water.
58. DEP reminded DS water and other bottling companies that only fmished water from
their owned springs is allowed to be shipped to bottling plants, other than those plants under
their ownership.
59. FAS has experienced losses in the millions of dollars because of the disparate
enforcement of regulations by individuals acting under color ofDEP policy or acting on
their own initiative for political or monetary gain.
60. Land, principle of MCR, stated in sworn testimony before the EHB, that he never
has, nor will he ever ship finished water from any source that he controls. The reason is, the
PV wells are drilled deep into the former coastal plane, and as such the wells contain salts,
specifically bromide.
61. Land is aware of the bromide problem, and in 2002 by his own memo, noted that the
"Bromide Contingency" would cost in excess of one million dollars to abate.
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62. Land is not the owner of either Niagara or Crossroads Beverage or Ice River
Springs. Notwithstanding, despite clear and unambiguous sworn testimony of Land, DEP,
to this very day, allows Land to transport raw water to the bottling plants of Niagara and/or
Crossroads Beverage and/or Ice River Springs.
63. This allowance by DEP policy and disparate enforcement by individuals has been
the proximate cause of damage to FAS in an amount in excess of20 million dollars. \
64. The DEP and individual employees of DEP continually look the other way, and
allow Land's raw water to be shipped to the bottling plants of Niagara and/or Crossroads
Beverage and/or Ice River Springs.
65. Notwithstanding, competitor water suppliers, FAS included, are required to continue
to provide only FINISHED water to the customers listed. DEP records indicate that the PV
water shipped to the Niagara-Allentown facility was not recorded as "purchased water".
66. DEP files coupled with records relarting to the Niagara plant permit, the space
wherein the source water supplier, PV's permit number should be entered is blank. All
other suppliers of water to Niagara are shown as "purchased water" and the source permit
number is so recorded.
67. Defendant Minnich is in charge of this PAWDIS System, and under the direction of
Dawn Hissner.
68. Despite having excellent testing results for years, FAS experienced a positive
colifonn result on June 10, 2015, which culminated in the recall by Niagara of millions of
dollars of bottled water. No contaminated water was ever found at Niagara either in bottled
water, or in the test results of the water unloaded from FAS tank trailers. In the time period
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in question, Niagara conducted 167 coliform tests, at two separate bottling plants, Allentown
and Hamburg; all testing was found to be in compliance.
69. At the very same time, RAW, untested, unmonitored, unozonated water was being
delivered to Niagara, Crossroads, and Ice River plants daily. This violation is allowed by
DEP, continuing to the present time.
70. Despite the FAS water being ozonated, a bad test result was indicated. This could
have been caused by lab contamination or improper handling or a test false positive.
Despite many unknowns, DEP ordered Niagara to issue a recall notice.
71. On June 19, 2015 at 3:53p.m., DEP defendants received urgent messages at two
DEP offices. The Reading DEP district office, wherein the lab is located, and the DEP
NERO office in Wilkes Barre, received messages from Suburban Testing Labs, that stated
"we wish to rescind the FAS test results"; no return calls \Vere ever made by DEP
defendants to the lab. Had the DEP Defendants ever bothered to return the calls to the lab,
the 20 million dollar recall could have been entirely avoided.
72. The DEP Defendants owed a duty to respond to the urgent lab calls. Even if not
discovered until the subsequent Monday morning (June 22, 2015), immediate action and
recision of the recall order would have greatly mitigated the damages emanating from the
recall.
73. MCR has been allowed to bypass any and all testing. Despite years of
noncompliance, late, untimely, reports on multiple sources, Land/MCR has been allowed to
operate as usual. Pictures in DEP files ofMCR's well heads, indicate that they are below
ground level. Defendant Hissner has, in sworn testimony at the EHB, stated that there is no
operational ozone generator at the PV site, yet MCR is allowed to operate, by DEP.
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74. DEP defendants devised a scheme, to allow MCR to operate without any oversight.
75. On March 11, 2013, Defendant David Hissner sent MCR's principal, Land, a letter
notifying him that the PV permit was being suspended. However, he could continue to
operate as usual ("3/11/13 Suspension Letter''). In the 3/11/13 Suspension Letter, Hissner
indicated that this position was being taken so that "violation notices are not generated"; no
permit, no testing, no reporting.
76. Defendant Dawn Hissner (Defendant David Hissner's wife) is responsbile for
statewide Monitoring and Compliance for the DEP. Both Defendants Dawn and David
Hissner as well as all other DEP officials were keenly aware that this type of
accommodation was and is only allowed wherein the water source is under the control of the
bottler, and listed, and made part of the Bottlers DEP permit.
77. The permit number listed in the suspension letter to Pine Valley, was the permit
number issued to FAS; not MCR. This was not a mere coincidence, at the very same time,
DEP was harassing FAS over water with drawl allowances. FAS was being harassed while
PV was being given extraordinary business advantages.
78. On June 15, 2012 FAS began selling and delivering finished spring water to Ice
River's new water bottling plant located in Allentown, PA. Despite having hauled less than
5 loads in a week. DEP sanitarian Joshua Krammes appeared at the FAS site. Krammes
issued a warning to FAS, that DEP had received a complaint that FAS was overhauling it's
allowed permit limit. It is believed and averred that the foregoing complaint was initiated by
Land/MCR.
79. Defendant Dawn Hissner oversees permit compliance statewide. Records indicate
that FAS never even came close to the withdrawl limit during the time period in question.
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FAS records indicated that withdrawl levels were in compliance. Despite such evidence,
DEP Defendants Peter Mangak, David Hissner and Dawn Hissner released the full wrath
and enforcement power available to them upon FAS. Daryl T. Zavislak, investigator, Office
of Chief Counsel, Bureau of Investigations, NERO visited FAS customers, and demanded
records and bills in an effort to prove that FAS was in noncompliance.
80. After tens of thousands of dollars of wasted taxpayer funds, DEP drafted a consent
order, in which FAS agreed to pay the sum of $1000.00 to settle the issue. It could never be
proven that FAS exceeded its permitted flow. It is believed and averred the actions ofDEP
and individual defendants were at the behest ofLand/MCR. Other than insiders in the
business, no one in the general public would have the knowledge that FAS had a new client,
and was shipping water to their facility. It is further believed and averred that Land did have
that knowledge; possibly gained from DEP Defendants.
81. It is believed and averred that the animus of DEP against FAS began as a result of
MCR not receiving the water supply contract for Advanced H20, the entity who resurrected
Land's failed Wissahickon operation in Hamburg, PA.
82. Advanced H20 was an experienced spring water bottler based in Seattle, WA.
Advanced H20 management understood the difference between real spring water and well
water. The U.S. Food and Drug Administration ("FDA") defines separate types of water,
known as the Standard of Identity, SOI. Under FDA regulations, a product that is
mislabeled is subject to recall. A manufacturer that labels a bottle of water as "spring" is not
allowed to use a ''well" as the water source.
83. It is believed and averred that Thomas Scholl and Thomas Fredericci of the DEP and
unknown others (DEP Does 1-10), delayed and obfuscated the issuance of the DEP permit
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for the new Advanced H20 plant. Only when FAS requested political intervention, did the
permit issue, the following day. It is averred, that Land's cronies at DEP held up said
Advanced H20 Permit, because Land was not the beneficiary of the water sales.
84. The continued investigation and attempted enforcement action against FAS ensued.
Because of the extraordinary examination that FAS customers endured, it is averred that Ice
River Springs, terminated FAS on March 15, 2013, as a supplier of spring water, and
contracted MCR for the water, well water. Essentially, on its face, it appears that if you buy
your source water from Land, the DEP shall overlook any type of compliance issues. This
shocks the conscience.
85. A January 12, 2012 meeting was held at DEP headquarters in Harrisburg to
introduce the Crossroads Beverage group management to DEP officials. The meeting was
arranged by Land. Crossroads Beverage ("CB") was in the process of opening a water
bottling plant in Reading PA. It is believed and averred that DEP, at the behest of
Land/MCR, granted special operating conditions for Crossroads Beverage.
86. Despite having suspended the MCR DEP permit on March 13, 2013, DEP, by and
through Thomas Scholl, Thomas Fredricci, Dawn Hissner, Jeffrey Algyer and Cable
allowed, nonpermitted, untested, nonmonitored water to be shipped to CB daily. Thousands
of loads of raw unpermitted water were received by CB since its opening.
87. Plaintiff contacted Sue Werner, DEP Reading District Manager ("Werner"),
numerous times starting in June of2013. Werner was unaware thatMCR had no DEP
permit. Her office is located adjacent to the CB plant, and the water tankers pass her
window hourly. She asked to be copied on the MCR suspension letter.
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88. Plaintiff questioned Werner, as to the legality of a permitted water plant receiving
water from an unpennitted water source. Werner responded to Plaintiff's foregoing inquiry
as follows: "Stan, you are absolutely correct, this should not be allowed".
89. CB, knew full and well at the time it was applying for a permit through DEP SCRO
that DEP NERO had issued Land/MCR, the 3/11/13 Suspension Letter. Thousands of loads
of unpermitted water were supplied to a fully permitted DEP water plant. DEP employees
Shaul, David Hissner, Dawn Hissner, Algyer Fredericci, Daniels, Mittner, Cable and
Krammes were fully aware that the MCR pennit was suspended. The additionally copied
individuals on the 3/11/13 Suspension Letter clearly demonstrates that all of the South
Central and Headquarter Central Office ofDEP defendants had knowledge. Central office
defendants also were copied.
90. The supply ofunpermitted water continued to Crossroads until May 14, 2014, when
the MCR permit was reinstated.
91. By letter of August 23, 2013, DEP defendant Shawn Cable reminded MCR that it
was not allowed to haul any water to CB ("8/23/13 Cable Letter").
92. Despite the 8/23/13 Cable Letter, DEP allowed the foregoing practice to continue
(MCR to haul water to CB) "in due course." There is no provision in the SDWA that any
individual employee ofDEP may take such an action. It is believed and averred that the
highest levels of the Department were engaged in this illegal decision.
93. Exhibits to a proceeding at the EHB note that an agreement was reached between
MCR and DEP and the individual defendants herein which allowed MCR to continue to
illegally haul unpermitted water to CB. It is noted that the Secretary of DEP was a part of
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this agreement. So while all other similar situated water suppliers complied with required
permit conditions, Land was granted special and deferential treatment.
94. At a meeting ofDEP defendants and MCR in Reading, PA held on February 20,
2014, Defendant Rodney Nesmith stated that MCR was given a choice to cease operations,
sell to CB, or reinstate his permit ("2/20/14 Nesmith Statement"). Despite the 2/20/14
Nesmith Statement, MCR was allo\ved to continue to operate illegally, at the insistence of
Land/MCR.
95. By September of2013, despite having a suspended permit for the PV site and
despite the indvidual DEP defendants herein all being well versed and experienced in the
proper application ofDEP rules and/or regulations and/or practices, Land/MCR had
captured most of the bottled water business, including but not limited to Niagara, CB and
Ice River.
96. In contrast to Land/MCR, all other major bottling companies are required to follow
the rules and/or regulations ofDEP; Nestle, DS Waters, and Water Guys all appropriately
are required to either haul finished water from unowned sources, or to "control the source".
97. The MCR permit requires an environmental protection pass by flow to the adjacent
stream. In the 2002 DEP Permit issued to MCR, a clear requirement states that when the
flow in the stream falls below 56.1 gallons per minute ("gpm") then "[NO WATER SHALL
BE PUMPED FROM THE WELLS]". Despite complaints from neighbors, the owner of the
land on which MCR operates and the instant Plaintiff, neither DEP nor any of its individual
employees undertook any type of investigative or enforcement action against MCR. In the
very same time frame, DEP along with Peter Mengak, David Hissner and Joshua Krammes
and other unknown DEP investigators were harassing FAS. Again, it is imperative to note
20
that Dawn Hissner is in charge of statewide enforcement, or NON enforcement of permit
conditions.
98. On February 20, 2014, MCRreached an agreement with DEP wherein MCR agreed
to make an application to reinstate the prior MCR permit. The testimony of David Hissner,
in April of2015 at the EHB, indicates that DEP defendants were totally aware that the
conditions and technical requirements of the 2002 MCR permit were not being met. Despite
such flagrant violations, DEP reissued the permit to MCR on May 14, 2014.
99. In late 2012, FAS submitted a permit application to DEP in order to modify and
expand the FAS facility. FAS submitted all plans, contracted a professional engineer and
professional hydrogeologist and followed all pertinent regulations, in furtherance of an
expanded water supply permit. A new permit was issued to FAS onFebruary21, 2014. In
this new permit version, FAS was required to submit monthly water withdrawl totals and
required bypass flow rates. Reports were to be made monthly to DEP Defendant David
Hissner, the Pottsville DEP District Manager. FAS complied with the new requirement the
following month.
100. Despite obvious and apparent violations, on April 18, 2014, the DEP reissued a
permit to Land/MCR for the PV site/facility. Land/MCR also had the flow report
requirements included in the PV permit conditions.
101. In July, FAS missed a monthly flow report, and was immediately sent an email from
Defendant David Hissner, to the effect, that the report was overdue. Upon receipt of the
foregoing email-inuqiry, Plainitff immediately emailed the requested report back to
Defendant David Hissner. In a subsequent conversation with Defendant David Hissner,
Plaintiff asked if, in fact the renewed MCR permit contained the same reporting duty.
21
Defendant David Hissner replied that he did not know, but that he would get back to
Plaintiff. Eventually, Defendant David Hissner informed Plaintiff that the MCR permit
contained the exact same condition. Plaintiff then asked Defendant David Hissner, "have
you been receiving those reports from Land?" Defendant David His suer responded "no."
To which Plaintiff then stated ''when you get the Land reports, let me know, then you will
get mine." Despite the foregoing exchancges, Defendant David Hissner, immediately
contacted Plaintiff about a possible violation while, in comparision, overlooking months of
MCR's overdue mandated reports.
102. DEP Defendant Joshua Krammes sent multiple violation notices to FAS, demanding
that disinfectant byproduct testing be done on FAS water. For 15 years prior to the
foregoing disinfectant byproduct testing demands made by Krammes, FAS had submitted
monthly Bromate testing. In fact, FAS was not required to submit chlorine based byproduct
testing because chlorine was not used for disinfection. At the very same time, despite these
facts, no normal testing routine was in place, nor electronic testing results automatically sent
to DEP, by any of Land's sources, NO VIOLATION NOTICES WERE EVER ISSUED
TO MCR OR LAND. This fact is admitted in a letter from Land to defendant Hissner Feb
9, 2015, attaching some testing results for years back to 2013. Despite missing monthly and
yearly testing and reporting mandates, no violations were issued by Defendant David
Hissner, Krammes, Algyer, Minnich, Ostir or Mengak. Land testified at EHB that no
violations were ever issued to Pine Valley in 14 years. Again this shocks the conscience.
103. MCR has not supplied reports to DEP. Despite MCR not providing reports to the
DEP, in an email dated June 12, 2015 to FAS, Defendant David Hissner threatened Plaintiff
by indicating: that his reports wete overdue, this is no game, this is going directly to
22
enforcement. It is believed and averred that at that exact same time MCR reports were at
least 10 months overdue. FAS was three months behind.
104. Atthe time theMCRpermit was reissued in April of2014, nothing had changed in
any DEP regulation that would allow raw water to be shipped to any bottling plant, not
owned by the bottler. The acceptance of, and absence of an appeal, of a DEP permit
signifies concurrence with ALL TERMS and CONDITIONS. Land ofMCR testified at a
EHB hearing in April of 2015 that he never has, nor never will ship finished water to any
water plant. Completely opposite to DEP stated policy regulations and procedure that is
directed at and enforced by DEP management and defendant employees against all similar
situated bulk water suppliers.
105. DEP would not allow bottler DS Waters of America to haul water from a source
they own, Bethany, to a different bottler, precisely because it was raw water.
106. MCR is allowed to haul RAW water from not only from PV but also from Temple
Springs and Tower Springs.
107. On March 11, 2013, DEP isued a letter to Land/MCR which indicated that neither
testing nor monitoring was needed from Land/MCR's sources and that Land/MCR would be
allowed to submit "special testing results" to DEP ("3/11/13 DEP Deferential Letter") in
contrast to every other competitor, including Plaintiff/FAS. Of course, the automatic,
testing and reporting required of all other suppliers can have onerous consequences. If a
positive coliform test is found, action can be taken by DEP to recall all bottled water. So the
dispensation to avoid subjecting your water to reportable testing is PRICELESS. Of course
this is an advantage that has allowed Land/MCR to secure the bulk of the water supply
business for water bottling.
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108. In the last paragraph of the 3/11/13 DEP Deferential Letter, Defendant David
Hissner indicated that the same conditions will be allowed to all other bulk water haulers.
FAS was not privy to this DEP statement, but when it was uncovered, FAS made many
requests for the same treatment.
109. FAS has never been able to receive the same policy statement in writing from the
DEP defendants. Defendant David Hissner was aware of the position that he and the DEP
had taken, in allowing this accommodation to Land/MCR. At the time of the first
notification of a possible bad test result for FAS on June 12, 2015, Defendant David
Hissner's statement, to Plaintiff "okay it's going to Niagara, they can handle it" was
absolutely proper and accurate. Of course, the FAS water, was only being shipped to an
approved bottling facility for further treatment, thus the statement of Defendant David
Hissner fully matches the DEP policy stated in the 3/11/13 DEP Deferential Letter. This
would fully negate any reason for a recall. The totally opposite treatment of two identical
and equally situated entities was a deliberate discriminatory act by the agency and individual
employees, and again shocks the conscience.
110. The DEP and individual DEP defendants literally took a week to mull and ponder
the actions they were about to take on June 19, 2015. The time frame involved allowed
deliberations, examination of correspondence, FDA testing to be examined, the absolute
strange lab result to be questioned, and other issues that should have been considered. The
decision was not rash nor made on the spur of the moment, in a crisis, or emergency.
Multiple defendants emailed, re emailed and copied many defendants about the issue. The
same DEP defendants allowed raw water to supply Niagara for 6 years at that point, and still
do to this day.
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111. Water supplier Stoney Mountain Springs ("Stony Mountain") was allowed to supply
spring water to the CB plant in Reading since 2012. Crossroads, as noted previously is a
fully permitted, by DEP, water bottling facility. Upon the incident that initiated this instant
complaint, Niagara-Hamburg wished to replace the spring water it had received from FAS,
while reconciling any perceived problems at FAS, with water from Stony Mountain. DEP
defendants, Thomas Scholl, Jeffrey Algyer, Shawn Cable, David Mittner, Lisa Daniels
Thomas Fredericci, Brian Busher, Brian Yagiello, David Hissner and Joshua Krammes
denied that request. Niagara-Hamburg is located in the same county, district and region as
the CB plant. Both plants operate under the same type ofDEP Permit. In sworn testimony
at the EHB, Land of MCR stated that all water that is hauled into Crossroads, even if not
from his owned sources, is brokered through him, and he receives a fee. Therefore, the only
difference between the allowance of Stoney Mountain water shipping to CB and
disallowance to the Niagara-Hanburg, is the fact that Land/MCR is not receiving a cut of the
proceeds. DEP and the individually named DEP defendants herein, have deliberate
indifference and wilfull blindness in the enforcing the rules and/or regulations of the DEP
against Land!MCR.
112. The entity that operates Stoney Mountain is Eagle Springs, owned by Richard
Withelder. Subsequent, to the incident that initiated this action, Withelder entered into a
Purchase Agreement with FAS. Intending to supply Niagara-Hamburg temporarily with
Stoney Mountain water, until any perceived deficiencies at FAS could be remedied. The
refusal ofDEP and employees thereof, to fairly and equally administer the codified
regulations of the state of Pennsylvania resulted in the water purchase by Niagara-Hamburg
not being allowed by DEP. This capricious act by DEP and the individually named DEP
25
defendants herein was the proximate cause for Withe Ider to cancel his Purchase Agreement
for FAS. As a result, FAS was damaged in the amount of 4 million dollars.
113. On February 14, 2015 Defendant Jeffrey Algyer held a phone conference with Jenn
Rock of Compliance Design ("Jenn Rock"), a consultant for the major bottled water
companies. Rock memorialized the conversation immediately and issued guidance to all her
clients, most major bottled water companies operating in the Commonwealth of
Pennsylvania. Defendant Algyer indicated: (1) that spring water suppliers would not have
to follow the current rules and policy in effect at the time; (2) that spring water operators
were being notified that permits will no longer be required; and (3) that monitoring would
only be conducted by FDA standards, which allows testing to be conducted by laboratories
located in FDA approved plants.
114. It is believed and averred that the compliance issues laid out to Jenn Rock were only
in place for Land/MCR. Plaintiff is unaware of any other water source owner, other than
Land's operations that have been allowed to operate without a permit, or not perform
mandated monitoring and testing. It is averred that this is again another special benefit only
available to Land. Had FAS been allowed to follow the same scheme of operations, no
recall would have been effectuated with respect to the foregoing Niagara recall.
115. In 2015, Land and his affiliates began development of a new source, Fort Franklin, a
few miles from the PV site. The Fort Franklin site in located at 1 Fort Franklin Road,
Andreas, West Penn Township, Schuylkill County, PA 18211 ("Fort Franklin").
116. On approximately October 15, 2016, despite no application to DEP, no DEP permit,
no approvals, Land began shipping from Fort Franklin to Niagara-Allentown. Adjacent
neighbors to the Fort Franklin site have experienced brown water every time the wells are
26
pumped. Multiple complaints have been made to DEP offices in Pottsville, Wilkes Barre
and Harrisburg. The foregoing complaints have been totally ignored by DEP. There is no
DEP oversight or control of any parameters, or any guarantee of the safety of the water, or
of the adjacent property owner's water quality. DEP refuses to become involved.
117. Jn a landmark ruling in 1995, the EHB ruled that any permit issued by DEP must
take the quality of the surrounding environment into account. In that case, the same entity,
Land and Wissahickon ultimately had a water source permit revoked by the EHB.
Defendant Shaul had granted the permit to Land, without proper evaluation of the wetlands
in the area.
118. On Feb 14, 2014, Defendant Gary Landiak of the Pennsylvania Department of
Agriculture sent an email to DEP NERO employee Richard Stepanski PE ("2/14114 Landiak
Email"), inquiring as to who would issue a permit for a water source which would supply a
bottled water plant under the jurisdiction of the Pennsylvania Department of Agriculture, if
DEP would not. Stepanski reiterated, that the only agency that could issue such a permit
was DEP. Whereupon, Defendant Landiak forwarded the email to Plaintiff. Thus, both
Defendant-State Agencies (agreed that DEP must continue to issue permits for bottled water
sources, even when the plants are not permitted by DEP.
119. Presently, Land's Fort Franklin is supplying at least one bottling plant daily, and has
disclosed plans to supply three (3) more. No permits have been applied for, nor issued by
DEP.
120. Land has stated blatantly to the Plaintiff and Withelder that he intends to put all
other water suppliers out of business. The generous protection provided by DEP has allowed
Land to make progress in that stated goal.
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121. On January 28, 2015, DEP NERO revoked the MCR DEP permit issued to MCR
Pine Valley. Nonreporting of bypass flow and the definition applied to Land/MCR's bulk
water hauling permit are at issue. The presiding EHB Judge issued a supercedes, allowing
MCR to continue to operate, while the appeal took its course at the EHB. Judge Coleman,
in so deciding, ordered, that the permit shall remain in place, however, all terms and
conditions of the existing permit must be followed and enforced.
122. In testimony, April 21, 2015 at the EHB, Defendant David Hissner testified that
during a very recent inspection there was no ozonation at the PV site, and that there was
little or no water flowing in the adjacent stream. MCR is required to maintain 56.1 gpm in
the stream, OR NO WATER can be pumped. No enforcement action of any type is being
taken against Land. This situation has remained in effect for 30 months. DEP has been
complicit in allowing extension after extension to be agreed to, in order to allow Land to
operate with impunity. These facts shock the conscience.
123. On June 12, 2015, Defendant David Hissner notified Frompovicz that the lab
employed by FAS had reported to DEP that a positive coliform and e coliform result had
been found in a sample collected on June 10, 2015 from FAS. Plaintiff was driving on the
Pennsylvania Turnpike at the time, en route to Pittsburgh. Plaintiff responded that the lab
had noted the possibility late the previous night, however at the same time, the lab
technician admitted that they may have possibly contaminated the sample, in light of the fact
that all FAS samples have been excellent, being absolutely "sterile" for over six months.
The technician, agreed that contamination was probably in play and that Plaintiff should
bring a new sample to the lab at 8 am on June 12, 2015.
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124. In the conversation, Defendant David Hissner queried Plaintiff: "where is the water
going?, any vending machines?, any mobile home parks?" In response, Plaintiff assured
Defendant David Hissner that the water was not going to vending machines nor mobile
home parks; all of the water was being shipped to Niagara-Allentown and Niagara-
Hamburg." Whereupon, Defendant David Hissner replied "okay they [Niagara-Allentown
and Niagara-Hamburg] can handle it."
125. At all times material hereto and continuing to the present day, Land has been
allowed to ship RAW, untreated, unozonated, not monitored water to the exact same
Niagara plant.
126. Two months before Defendant David Hissner's utterance ("okay they can handle
it"), Defendant Jeffrey Algyer had stated to Jenn Rock, that spring water sources would not
be required to test or monitor and could ship raw unpermitted water.
127. Defendant Jeffrey Algyer's communication to Jenn Rock also stated that rules
promulgated and enforced separately by FDA would instead govern the compliance of water
testing, monitoring and reporting.
128. With 2 hours of Defendant David Hissner's notificaiton, on June 12, 2015, FDA
inspectors Lt.CDR John M. Mastalski and Lt.CDR Margaret DiGennaro conducted a site
inspection at FAS.
129. Commander Mastalski found no violations, no objectionable conditions and
personally watched tankers being loaded with FAS water. Remarking to the FAS employee
present that he could smell the Ozone odor emanating from the tanker. It is a scientific
principle, if ozone is present, no bacteria can be present.
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130. On Sunday June 14, 2015, FAS emailed all 2015 testing to Cmdr. Mastalski. He
concurred, all testing was excellent. Cmdr Mastalski and Cmdr. Bradely Benasuti visited the
FAS site again, on June 15th in Plaintiff's presence, and again watched tankers being
loaded. No indications of any problems. The FDA inspector-commanders took samples for
FDA testing, all returned with no issues. While on site, the result of the FAS re test samples
of June 12, 2015 were emailed to FAS and all were again, perfect, and sterile. Both FDA
Commanders were copied.
131. If there had been any failure of the retest of June 12, 2015 the lab, FAS would have
been notified by Noon on Saturday June 13, 2015 (testing is required to be read within 24
hours of sample delivery). No such result was found.
132. Defendant David Hissner's statement that the Niagara plants could handle it
(referring to thee coli hit), coupled with Defendant Jeffrey Algyer's letter, is significant in
that both mesh in agreement that the FAS water, although being ozonated and filtered, is
considered as RAW water when being delivered to a bottling facility, which is not the end
user such as the vending machine or trailer park; but instead a facility that will further treat
the water before human consumption.
133. Both Niagara plants had been issued DEP permits, allowing raw water to be sourced
and thus validated as being capable of treating such raw water to potable standards. RAW
water must be assumed to be nonpotable, especially when not ozonated, as is the case at
Pine Valley. Thus it must be deemed to be contaminated.
134. On the date in question, June 12, 2015, MCR's untested water was being delivered
to Niagara-Allentown, and mixed (commingled) with the ozonated water delivered by FAS,
into the same silo.
30
135. On Jnne 19, 2015, at 9:43 am, an email from Defendant Gary Landiak of the
Pennsylvania Department of Agriculture, copied to Defendant Lydia Johnson (Secretary of
the Pennsylvania Department of Agriculture). Defendant Landiak made several false and
vexatious statements. Wherein, Defendant Landiak states that FAS has been shipping water
to Niagara plants in violation of a cease and desist issued by DEP. That statement is
absolutely FALSE. After a week of discussions, DEP fmally ordered a cease of water
shipments by FAS at approximately 2:00 p.m. on Thursday Jnne 18, 2015; FAS
immediately complied. Absolutely no water moved after the DEP field order. Three (3)
FDA inspectors were on site on two different days, June 12'2015 and June 15, 2015. All
observed FAS water being loaded onto tankers. All FDA testing results were proper.
136. The decision to make a recall of the finished water at both Niagara plants was
relegated to Defendnat Landiak, the least qualified person on the conference call. As noted
in his email to Stepanski ofDEP NERO on Feb 14, 2014. DEP is the only authority allowed
to approve water sources.
137. Defendant Landiak, continuing the conversation, failed to bring to the attention of
the DEP defendants, that the FDA regulations, under which he is obligated to perfonn his
duties, notes that the commercial laboratories in food (or water plants) are perfectly
acceptable to perform the required testing to comply with FDA regulations.
138. Defendant Landiak and the DEP defendants thus allowed a blatant error to occur.
Niagara, by June 19, 2015 had hundreds of tests, from their acceptable lab, on both raw
incoming water and outgoing water product, and all samples tested appropriately.
139. On June 19, 2015 at 8:43 a.m., DEP defendantAlgyer emailed all other defendants
at DEP and the Pennsylvania Department of Agriculture. That in his opinion, all water had
31
to be recalled. This email was response to Defendant David Hissner, who, evidently was
asking for a recall. Defendant Algyer also states that "in his opinion, log 4 disinfectant is not
an option."
140. Any and all records pertitnent hereto are devoid of any proof that Defendant Algyer
is qualified as a PE or that said Defendant holds an advanced degree in food science.
141. Any and all records pertitnent hereto are devoid of any proof that Defendant David
Hissner has any necessary qualifiacations and/or credentials material hereto. However,
Defendant David Hissner's wife, Defendnat Dawn Hissner is in charge of the Department of
monitoring and compliance at the DEP. Defendant Algyer is supervised by Dawn Hissner.
Defendant David Hissner was the first person to demand a recall on June 19, 2015.
142. None of the three foregoing Defendants, were/are in position, or had/have the
qualifications to determine if a plant such as Niagara has log 4 treatment. None are
engineers. If the Defendant Dawn Hissner had correctly exercised her duties, a decision
would have been clearly stated that would articulate an exact position on who must test and
monitor and who does not. It is averred that her subordinate, Algyer, under her direction,
stated the "NEW DEP policy" to Jenn Rock on Feb, 12, 2015. It is further believed and
averred that both Hissner's and Algyer formulated DEP policy and practice for DEP.
143. Defendant Jason Minnich, who had been the Pottsville District Sanatarian ,who in
2002, conducted the Pine Valley inspection, in which he noted that PV could only ship raw
water to the Wissahickon plant, is now the chief of the DEP PADWIS system. This system
keeps track of all statewide violations and enforcement ofDEP water permits. Minnich is in
charge of sending notices to permit holders who do not comply with the necessity to monitor
and report. Minnich reports to Dawn Hissner.
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144. The exact reason that the state of NY did not agree with the need for a product
recall, was that proper log 4 sanitation was in place at both Niagara plants. Both DEP and
NYSHD are required to follow the same USEPA standards.
145. This same defendant, Algyer, gave the decertation, months prior, to Jenn Rock that
all springs supplying bottled water plants, did not have to be tested or monitored under DEP
regulations. The bottling plants only had to follow FDA regulations. Niagara complied with
all FDA regulations, from June 10, 2015 to June 19, 2015, Niagara tested 176 samples of
FAS supplied water, and all were perfect. Thus, there was no reason to recall any water.
146. On April 17, 2014 through April 20, 2014, Aqua Filter Fresh ("AFF"), experienced
multiple contaminated water tests at their facility in Pittsburgh, PA. Positive coli and e coli
results were detected in both spring water and purified water products. All positive tests
were in the finished product, not rmv source water. DEP, took no formal action, no field
order was issued, no shut down of the bottling plant occurred. A small amount of 5 gallon
bottled water jugs were recalled and destroyed. It is imperative to note that these bad tests
were found in the finished product going out the door to the consumer.
147. DEP never even conducted an inspection at AFF, relying instead on the Allegheny
County Health Department to conduct an inspection.
148. The water source For AFF, for the water affected, was never issued any type of
violation, or impacted in any way.
149. FAS remains underDEP embargo. At multiple meetings with DEP defendants,
Plaintiff and his consultant, Louis Vittorio PG, asked if the FAS pennit was in force and
valid. All officials stated yes, it is valid. There has never been an order suspending the
permit, or revoking it. All defendants answered, it is valid.
33
150. Mr. Lou Vittorio PG. and Jillian Olsen MS. QEP., of the firm, Earth Res Inc., again
asked why is FAS not allowed to begin to ship water again. DEP defendants responded
"the Field Order issued on June 18, 2015, remains in effect until all items are completed".
151. There are ten items listed in the June l8 1h Field Order. In a letter directed to Richard
Withelder on Nov. 4, 2015, Defendant Busher writes, that the Field Order remains open.
Stating further, that the permittee, FAS, has addressed items 1 thru 8. Items #9 and #10,
must be addressed. Analyzing Item #9. "When all items are completed, DEP will issue a
"Notice of Completion"". And item # 10 ten states, within 24 hours of receiving the
"completion notice" from DEP, FAS must send a copy of it to all FAS Customers ..
152. DEP defendants have boxed FAS into a dead end. Defendants have admitted in the
Nov 4, 2015 letter to Withelder, that items 1 thru 8 have been addressed, however, it is the
DEP defendants who refuse to take the next step to issue the Corrections Completed Notice,
and of course, FAS cannot send a notice to customers, that DEP has failed to issue. Thus
not allowing FAS to resume shipping of water. Again, Conscience shocking.
153. At an Aug 25, 2015 meeting between FAS and DEP Defendants, Plaintiff was not
allowed to even open his mouth. Defendant David Mittner, who stated therein that he was
participating as a direct envoy of Secretary Lia Daniels, refused to allow Plaintiff to ask any
type of question; stating that if Plaintiff would open his mouth for one word, he [Mittner]
would clear the room, and the meeting would be adjourned." Defendant Mittner did order
all DEP defendants out of the room, and only agreed to continue the meeting with Plaintiffs
agreeing to not say a single word.
154. Defendant Mittner, nor any other defendant would make any statement whatsoever,
as to the steps needed for FAS to resume operations. DEP Defendants, agreed to meet on the
34
FAS issue on Oct 25, 2015, with Richard and Matthew Withelder present, who at that time
had entered into a purchase agreement for FAS. Again, Plaintiff was not allowed to speak,
or ask any questions. Only after the DEP written response to Withelder on November 4,
2015, by copy thereof, from Withelder, not DEP, was it discovered that the items required to
be done, were basically DEP administrative actions.
155. DEP defendants' failure to finalize the Field Order has caused FAS to lose the
purchase agreement with Withelder, with a loss of 4 million dollars. While at the same time
allowing, Land's Pine Valley, Temple and Tower Spring sites to run unpermitted, untested,
unmonitored water to the very same customers. On October 25, 2016 Land has begun
shipping his Fort Franklin water to bottlers Niagara and Ice River. No permit has been
applied for at DEP, nor the DRBC.
156. Land in a phone conversation on January 28, 2015, clearly and loudly told Plaintiff:
"I intend to put you and all the other water suppliers up there out of business". It is obvious
that DEP defendants are complicit with Land's intent.
157. At the DEP meetings of Aug. 15, 2015, and Oct 25, 2015, DEP defendants
continually tried to erect any and all hurdles to the lifting of the embargo on FAS. FAS has
been properly permitted since April of 2002. All inspections and testing were and continue
to be current.FAS is far from the only source that encounters a coliform hit. As Noted the
case of AFF in Pittsburgh, in 2014, and recently 3 hits in 3 months were found at
Mountainside Springs. Mountainside is located in the NERO, under the pmview of same
DEP defendants. Despite a clean past history at FAS, DEP defendants at both meetings
tried to infer that the FAS spring and boreholes were not a proper method of water
collection.
35
158. The FAS spring and boreholes were MPA analyzed, at least 3 times since 2013. All
have been found to be in compliance with the parameters of ground water, not under the
influence of surface water.
159. Defendants Busher, Aygiello, Krammes, and David Hissner, personally visited the
FAS operation on April 6, 2015. All above DEP defendants inspected both FAS systems,
which had been approved and inspected a year prior.
160. On March 20, 2012 Richard Stepanski sent a letter to DEP officials, Richard
Miezikowski and Thomas Hartraft, PG., regarding the pending issuance of a permit to
Mountainside spring, a direct competitor of FAS. Stepanski stated, in the letter, that a bore
hole is considered groundwater, and as such no SWIP monitoring plan was needed, only a
current MPA test. (microscopic particulate analysis). The MP A analyzes water for algae,
rotifors, and other items present in surface water.
161. Thus, Mountain Side Spring is allowed one class of examination and approval, and
FAS is now being held to a heightened level of scrutiny. Three large coliform hits have
occurred at Mountainside spring in the frrst quarter of 2017, with no action of any type taken
by DEP NERO defendants.
162. Mr. Thomas Hartnraft, DEP NERO geologist visited FAS in Feb 2013, and
approved the site, and the FAS predrilling plan submitted by Earth Res. PG, on behalf of
FAS. In addition, all aspects of the new boreholes were sho'Wll on drawings submitted to
DEP NERO on August 2013, under seal of Yourshaw Engineering Inc, and Lou Vittorio
PG. Plan was approved on Feb 1, 2014 and a construction permit was issued by DEP
NERO, by Dino Augistini. Final inspection was conducted by Richard Miezikowski, Pa
DEP Nero on Feb, 20, 2014 and an operations permit issued to FAS on Feb. 24, 2014.
36
163. All above plans included bore hole construction, piping and all plot and plan views
of operation. A Hydrogeological study Wlder the seal of Lou Vittorio, PG was included.
Plans detailed two separate systems, System A "Pennitted" and System B, "NON
PERMITTED". As noted above, DEP inspected both systems. Miezikiewski ofDEP
conducted a thorough review and inspection of both systems. DEP issued the permit and
lists System A Permitted.
164. Frompovicz requested the on site meeting with DEP NERO defendants, Busher,
Agiello, Krammes, Hissner on April 6, 2015 specifically to settle the rumors and inuendos,
that were swirling in the bottled water industry regulated by DEP defendants. This was 2
months after the letter from DEP defendant Algyer, to C-D, Jennifer Rock, wherein Algyer
stated that no permitting or monitoring would be required of spring operators, going
forward. FAS did not wish to rely on rumor or half truths. FAS again met at NERO offices
on April 8, 2015, again to settle, and put to writing, the terms and conditions, under which
spring water operators were required to conduct business. FAS was not made aware of the
policy statement of Algyer, orated to Rock, two months prior. It is alleged that DEP
purposefully kept FAS and similar situated entities in the dark, deliberately, saving the
advantage solely for Land. Thus creating two separate disparate forms of enforcement for
absolute identically situated entities.
165. Nothing at all was settled at the NERO meetings, April 6 and April 8, 2015, other
than wishing happy retirement to Dino Augistini, who noted , he is thrilled he is out of it.
Augistini, the head DEP official at NERO clearly stated, that he had argued with Lisa
Daniels, Overall director ofSDWA in the state of Penna., that this has to stop, and a
decision has to be made. At that time, and continuing to this very day, Land is the only
37
entity allowed by DEP defendants to operate, openly, with no permit, or a permit that is
blatantly ignored.
166. IfDEP defendants had treated FAS in an equal manner, no recall at the Niagara
plants would have been mandated. Again all of Land's water sources are delivered raw, It is
averred that Hissner's statement, "that's Okay the Niagara plants can handle it", was
indicative of that intent, when he uttered it on June 12. Aprox 12 pm.
167. It is believed and averred that Land's influence over DEP defendants caused the
recall to be ordered on June 19, 2015, at aprox. 5 pm. It is noteworthy, That DEP has been
admonished in the past for issuing violations and such orders late on a Friday.
168. It is believed and averred that Land's influence among DEP staff, especially the
Hissners and Central office defendants, pushed said DEP Defendants to order the recall.
169. It is believed and averred that DEP animus, towards FAS because of the valid and
legal complaints against MCR, and the wish for certain DEP defendants to assist Land in his
business, was the reason DEP took the action that it did.
170. If there had been an imminent threat, Where was it? By Friday afternoon June 19,
2015, the FAS check sample had returned, fme. Three FDA inspectors had inspected FAS
on June 12, and June 15, no issues. Matalski's FDA testing again was negative, and results
were available by June 17. Niagara had 176 negative tests at two plants in the period June
10 to June 18. Of course, raw untested water from three Land sources was being
simultaneously delivered to Niagara.
171. The DEP defendants are sophisticated water regulators. The initial bad laboratory
test indicated that the sample was positive for coli and e coli after a 24 hour incubation time.
But the Total plate count, read after a 48 hour incubation period, was a total of 2. Countless
38
scientific articles profess, that this result is impossible, and based upon the perfect finished
tests at Niagara laboratories, the FDA tests which were excellent, and the retest sample of
June 12, which tested perfect, DEP had a more than valid reason to suspect imperfect
testing, or lab contamination.
172. The DEP defendants clearly ignored any probable or possible errors in testing, and
instead chose to initiate a 20 million dollar recall.
173. In the 3 million cases of water that were recalled and destroyed, there never was a
bad test result.
174. The DEP defendants are water professionals, and as noted in the Stepanski-Landiak
letter of Feb 14, 2014, the only entity that can approve a water source is the Pa. DEP. Their
authority flows from the SDWA, based upon the rules and regulations of the US EPA.
TheE EPA or the SDWA has no authority over the regulation of food, of which water is a
part. DEP has no authority over the operations of a water plant. The mandatory lab testing is
necessitated for FAS, IF AND ONLY IF, FAS was providing the affected water to the
public as an end user. The Hissner, Algyer and Augustini letters all confirm that caveat.
DEP allowance of Land's entities to operate as such, definitively prove that fact.
175. The FDA has total control over the activity of food regulation and water bottling.
As noted, in the Stepanski letter, the FDA and Pa. Dept. Ag. concur that the Pa. DEP must
first approve the source of the water. After that initial approval, The FDA regulations return
the duty of inspection and enforcement of food to the FDA.
176. The DEP defendants had no authority to issue a recall of finished product from the
Niagara Allentown plant. As noted earlier, Niagara had requested revocation of its DEP
permit in 2014. Therefore, the Allentown plant was totally under the purview of the FDA,
39
enforced by Inspector, Commander Matalski. IfMatalski had felt there was a threat to this
water plant he had jurisdiction and authority to conduct any and all inspections, and if
compromised product was detected, he had the authority to order a recall. DEP defendants
had no more authority to recall tomatoes from a local canning facility, than they did to order
a recall at an FDA authorized water bottling plant.
177. Niagara-Hamburg was operating under the authority of both an FDA permit for
bottle sizes less than~ gallon, and a Pa. DEP pennit for larger sizes. It is unknown what
product was being produced during the period in question.
178. The New York State Health Dept. NYSHD, upon being notified of the impending
recall at the Pa. Plants, refused to concur in the recall. NYSHD stated position was '"you
have a NYSHD approved plant, as witnessed by the permit you were issued". Your plant
design is capable of receiving raw, untested, untreated water. Therefore, any possible
contamination in the source water will be treated by the approved process's therein. Instead
of following the advice of the NYSHD's Professional engineers, DEP chose to follow the
advice ofLandiak, with no formal training, The Hissner's and Algyer, again, none a
professional engineer.
179. The difference between the opinions ofNYSHD and the Pa. Defendants, is clear,
NYSHD had no political animus towards FAS, nor a history of granting special enforcement
favors for Land.
180. The Pa. DEP and NYSHD's authority to regulate water arise from the USEPA
SDWA. Both states have to meet the same standards and regulations. The NYSHD
regulations in effect on June 15, 2015, at subpart 6 allow the issuance of a NYSHD pennit
to an out of state bottler, ie. Niagara, which is licensed in the jurisdiction wherein it is
40
located. As noted, therefore both the Allentown plant with only an FDA permit in force, and·
the Hamburg plant with both an FDA and Pa. DEP permit in force, ALSO met the criteria of
plants that could effectively treat any possible Raw water defect. Thus meting all EPA and
SDWA assurances that there was no possibility of bad water passing thru the plant system.
It is evident that the NYSHD was fully confident in this assessment.
181. Therefore, the Pa. DEP defendants, arbitrarily and capriciously enforced actions
against the Allentown Niagara plant that it had absolutely no authority to regulate, further
shocking the conscience.
182. The issuance of a Pa DEP permit to the Hamburg Niagara plant, by same Pa. DEP
defendants, is proof that the process in Hamburg is approved to take in raw water, and
disinfect it properly (Log 4). NYSHD would not have then issued a NY permit for the
Hamburg plant, unless their professional engineers had not concurred.
183. Defendant David Hissner's exact statement to Plaintiff, upon being told that the
water was going to two Niagara plants, was Okay, they can handle it", is proof ofHissner's
agreement, at that moment, but it is averred that upon exertion ofDEP animus and
competitor pressure, Hissner changed his mind, a week later.
184. With both Pa. DEP and NYSHD permits in place and in force, at the Niagara
Hamburg plant, no action was warranted at all. Again, the supposed bad tests were in the
raw supply water, not finished product, as was the case in the AFF recall in Pittsburgh, the
previous year.
185. In initiating a massive recall against FAS, DEP defendants chose to, arbitrarily and
capriciously, enforce finished product water standards against the FAS raw water being
41
shipped to Niagara. Land's water sources have never complied to this standard. The DEP
defendants have overlooked the violations, as per Land's testimony at the EHB.
186. DEP had no jurisdiction nor authority whatsoever to interfere with the operations of
the Niagara-Allentown plant.
187. The same DEP defendants allowed the Crossroad Beverage plant to operate for 14
months, with full knowledge that RAW unpermitted water was being supplied to the DEP
Permitted plant. Therefore, proving the above statement, that the DEP permitted Hamburg
plant, with the exact same permit could properly do the same. FAS was treated totally
opposite of competitor Land by defendants Pa. DEP. Despite CB CEO Kirk Richmond
testifying that he will not take in finished water, he actually receives fmished water from
three other Withelder water sources. Richmond really means that, he realizes that he cannot
take finished water from MCR. And that is a direct result of having source well water that
contains bromide. To this present time, only raw water is provided by MCR to the
Crossroads plant, scores of violations daily, shocking the conscience.
188. Defendants Landiak, and Johnson exceeded the legal authorization of their positions,
and capriciously enforced regulations against Plaintiff's. FAS and Frompovicz's actions in ·
2013 and 2014, in trying to confirm in writing which Agency, Agriculture or DEP would in
fact be in charge of water regulations, caused this animus.
189. DEP defendants and Department of Agriculture Defendants conducted an email
exchange on June 19, 2012 at aprox 9 am. In this exchange, DEP again demurred to Dept
Agr. defendant Landiak's position that there should be a recall. It is also noted that Landiak
was aware of the FDA regulations that he quoted, in his email, which included the
regulations for testing water at an FDA permitted facility. The important fact that both Ag
42
and DEP defendants failed to understand was that the in house laboratory of Niagara was
the laboratory of record for the Niagara facility, following FDA regulations. Individual
samples are taken from each tanker delivered. There were never any tankers from FAS that
tested positive for coli or ecoli at the Niagara plant. The Dept Agr. Defendants were derelict
in their duty to know and lUlderstand the proper regulations of a facility they oversee.
190. Weeks of laboratory testing from the Niagara lab were available for inspection. It is
averred that Landiak never made an effort to examine such documents.
191. Defendant Johnson was derelict in not training nor supervising Defendant Landiak
in a proper manner.
192. Defendant Landiak was asked in the email, what must an FDA plant do in order to
restart intake of water, after a positive ecoli test result. Landiak answered, have 5 clean test
results in a 24 hour period. Landiak, could have inspected Niagara records that would have
indicated, first, that no positive test was ever found. And second in the 176 tests in the week
in question, the requirement to have 5 clean samples in 24 hours was met at least 7 times
over.
193. The Pennsylvania Department of Agriculture oversees a water plant that continually
draws source water directly from ecoli positive water. The Central Pennsylvania plant lists
its source on bottles as Bald Eagle Creek. There is no possible way that a wildlife laden
stream can be considered any other than ecoli positive. Bald Eagle Creek is not a DEP
approved source. Thus, indicating that the Pennsylvania Department of Agriculture and the
individual Pennsylvania Department of Agriculture Defendants have administered FDA
policy totally capriciously and arbitrarily against FAS. The same plant also possess' a DEP
pennit, thereby proving the DEP defendants position that a bottled water plant must only be
43
supplied by a pennitted, non ecoli positive water source, not under surface water influence,
as blatantly false.
194. ]DEP defendants refused to investigate why and how a certified Pa. Laboratory
could find a positive result for coli and ecoli, but only a total plate count of 2. Zero plate
count is sterile. Scientific papers state that standard plate counts range from 10 to 100 times
greater than the coli bacteria.
195. DEP defendants received urgent messages at two DEP offices, the Reading district
office, wherein the lab is located, and the DEP NERO office in Wilkes Barre. Despite two
messages, that "we wish to rescind the FAS test results", No return calls were ever made to
the lab, by DEP defendants.
196. By not responding to the urgent lab messages, the DEP defendants again acted in a
capricious manner which is beyond belief, and shocks the conscience. Every effort has been
made to silence and destroy FAS, and thus cause irreparable harm to the company.
197. Defendant Johnson of the Pennsylvania Department of Agriculture continues to
evade a straight answer to either FAS or the Withelders, on the proper oversight and
regulation of the water bottling plants under her jurisdiction. Despite the Landiak letter, of
Feb 2014, raw, unpennitted, unapproved water is being supplied to Ice River, to the present
day by Land sources. This disparate treatment continues to damage FAS and others in
direct competition with Land.
198. Land is the only water operator allowed to evade the law.
199. The agenda sheet for the August 25, 2015 meeting between DEP defendants and
FAS and consultants, clearly states that a discussion of Permitted and Non permitted
44
systems at FAS will occur. It never did. Defendant Mittner stated at the meeting, he was
attending as the direct representative of Director Lisa Daniels.
200. If no permit is needed, then there should have been no recall. Because there was no
bad test. The required testing and automatic mandatory reporting from lab to DEP is only
required by PA. DEP permitted water sources, and, then only if water is being delivered to
an end user for human consumption.
201. Raw, not permitted by DEP, water is currently being supplied from Land's Fort
Franklin source to an Ice River plant daily.
202. The Reporting mandate in a Permit, is exactly why Land refuses to permit his new
sources, with continued impunity.
203. The Land sources that are permitted, do not follow permit mandates to test and
monitor. DEP overlooks this to this very day, allowing Land the specific "convenience" to
report when he feels like it, and mark his samples as "special". Defendants Dawn Hissner
Algyer and Minnich specifically give this "special'' allowance only to Land. Again creating
an impermissible disparate treatment for equally situated entities.
204. Other bottling plants, other than Niagara have never been ordered to recall product,
wherein no defective testing was detected in finished goods. Other bottling plants under the
direct purview of the very same defendants have never been issued recalls against said
plants for the same or equally dangerous reasons.
205. If FAS had been given the same "special" treatment, FAS would have not been
mandated to have lab reporting directly to DEP. Land only reports the results he wishes to,
and then only one month afterwards.
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206. The damage done to Niagara and FAS was specifically caused by the DEP
Defendants disparate treatment, of two identical entities. All conditions are exactly the
same.
207. Ifin fact a direct clear decision had been made at the DEP meetings of April 6th and
glh at NERO, no recall of any sort should have been ordered. Remember, DEP defendants
kept telling Frompovicz, that no permit was needed for small bottle (Dept Ag.) Plants, ie.
Niagara. It is precisely the reason, to try to avoid this subterfuge and deceit by DEP
defendants, Frompovicz wanted a statement in writing.
208. DEP defendant Algyer gave that assurance, but it was only given to Land. It was not
shared with FAS or others. The Algyer discussion was two months before the April
meetings between DEP and FAS.
209. DEP defendants overlooked the safety of the general public, by allowing, and
continuing to allow Land's unpermitted water sources to supply Ice River, Crossroads, and
Niagara, from March 2013 until May 2014. Where was the feigned concern for the public
safety.
210. Unpennitted Water continues to be hauled to Ice River from Land's latest source
Fort Franklin, despite the lack of an application for a permit to DEP.
211. Water is currently being supplied to Crossroads Beverage, despite testimony of DEP
NERO defendant Hissner at the EBB that permit conditions are being violated, no ozone, no
monitoring, no testing. This again shocks the conscience.
212. Water is currently being hauled from Land's Tower Springs and Temple Springs,
again as raw, as noted in sworn testimony of Land at the EHB. Again this schocks the
conscience that this is allowed. Defendant Jason Minnich, who reports to Da\VU Hissner is in
46
charge of the reporting system statewide. Minnich, in his inspection of Pine Valley in 2002,
specifically stated that raw water could only ship to Wissahickon. Thus his knowledge of
the ongoing violations shock the conscience, as he allows it to continue.
213. FAS and FAS consultants have reached out to the DEP defendants many times in
order to bring this forced closure of FAS to an end. Hissner, Busher, Yagiello, Mittner, all
admit that the FAS permit is still valid and in force. DEP defendants continue to deny to
FAS the required item #9, "correction completed" on the Field Order of June 18, 2015,
despite the existence of the Nov. 4 2015 letter wherein DEP defendants that items 1thru8
have been addressed. Thus depriving FAS of large sums of income.
214. DEP defendants are not allowed to communicate with FAS on orders of David
Mittner, assistant to Director Lisa Daniels. In an effort to come to an amicable solution,
Frompovicz discussed, and then sent an email to Hissner on Nov.3, 2015, discussing
technical upgrades that would in effect go far and beyond what any other system is required
to do. Hissner immediately sent the letter to Mittner, and no further technical discussion
was allowed by Mittner, assistant to Director Daniels. This continues to deny Frompovicz
his due process.
215. Plaintiff, on March 17, 2016 held an hours long phone conversation again with
defendant Busher, as an engineer to engineer discussion of technical means to resolve any
possible doubts to the efficacy of the FAS system, in an effort to get FAS back on line.
Frompovicz proposed added items, unheard of in bulk water systems meant for bottling, in
order to let both sides, bury the hatchet, and literally give cover to DEP defendant's.
Frompovicz proposed a sophisticated upgrade, listed in US EPA documents, as meeting any
47
and all disinfection requirements, for any type of water, spring, water under possible
influence of surface water, or groundwater.
216. Defendant Busher participated in the conversation, seemed amenable, asking to
memorialize the discussion in writing. Frompovicz sent a letter with details to him the
following day. Defendant Busher has since declined to speak with the Plaintiff. It is
believed and averred this is on orders of Lisa Daniels and David Mittner.
217. If DEP Defendants refuse to discuss technical issues, then the assumption has to be
that the real problem is political or personal animus. That cannot be cured in a technical
manner.
218. Defendant Mittner's refusal to allow Frompovicz to speak and discuss his valid
permit issues with DEP employees on two occasions is further indication of animus against
the Plaintiff, because of his questioning of the disparate and discriminatory treatment of
FAS as opposed to competitor Land.
219. Plaintiff has been in the water business for 27 years, being first pennitted in 1990.
Frompovicz has developed many sources in the region. Frompovicz has always been able to
pick up the phone and talk at length with DEP
officials, from district sanitarians to Regional Managers, Head engineers at NERO and the
Central Office, legal issues with attorney Bishop in Harrisburg, even Director Lisa Daniels.
As an engineer, Frompovicz has always been able to understand and engage in healthy
technical dialogue with DEP.-
220. When Plaintiff began his questioning ofDEP defendants in 2012 in earnest about the
rules and regulations being enforced to all suppliers unequally, Defendants began the course
of enforcement only against FAS. The first instance as noted began on June 15, 2012,
48
regarding the supposed withdrawl exceedance at FAS, despite 22 months of aggravation,
DEP wasted tens of thousands of dollars, and settled for $1000. FAS had to make a realistic
choice, spend thousands of dollars, defending against unwarranted and unsubstantiated
claims, or walk away for a pittance.
221. Due to Plaintiff again bringing to the attention of DEP Reading district manager, Sue
Werner, the fact that a plant in plain view of her office was taking in unpermitted water,
further influenced DEP defendants to enforce regulations arbitrarily against FAS.
222. In September of 2014, Frompovicz again asked defendant Defendant David Hissner
if in fact competitor Land was complying with his newly reinstated pennit, and Hissner
stated he was not. Hissner started to initiate a halfhearted inspection effort at Pine Valley
shortly thereafter. Despite testifying at the EHB that there was no passby flow, and no
ozone system, no violations were issued.
223. In 2012, an immediate violation was issued against FAS for far less, and with no
discussion, by DEP defendant Krammes.
224. Crossroads Beverage, in Sept 2014, seeing that possible enforcement actions would
be started against Pine Valley, entered into negotiations with Frompovicz for water
purchases, or the purchase of the FAS facility. Shortly thereafter, Crossroads realized that
the threatened enforcement actions by Hissner, were just that, threats, and nothing more, and
never furthered the discussion. Kirk Richomnd, CEO of Crossroads testified at the Pine
Valley EHB hearings, Apr. 2015, that there was no water available at any cost to replace
Pine Valley water. FAS was closer to Crossroads and had no trace of bromide in its water,
thereby solving Richmonds, problem, that under no circumstance would he take in ozonated
49
water. The problem with Richmonds statement, is that every other supplier in the region,
OZONATES their water, it is only Pine Valley that has bromide issues.
225. DEP defendants have bent all the rules for Land since 2009, when Land was first
allowed to ship raw unozonated water to a non ovmed bottling plant. This is a decision that
could only be authorized by the person in charge of statewide Operations Monitoring and
Compliance. That person is Dawn Hissner. Jeffery Algyer directs the policy, and David
Hissner, is directly in charge of oversight and inspection of Land's water sources, which are
all located in the purview of the Pottsville Office, wherein David Hissner is manager.
226. The absolute proximate cause of this recall, and further obstruction of FAS business
opportunities, is the DEP defendants effort to allow Land to continue to engage in this
illegal activity.
227. Every other large bottler, Nestle, DS, and Water Guy are only allowed to haul raw
untreated water to their ovm bottling plants.
228. The illegal recall issued by DEP to plants over which it does not have jurisdiction
has caused damages to FAS and Niagara, in excess of20 million dollars.
229. The failure ofDEP defendants to finalize the open field order of June 18, 2015, has
caused the cancellation of a Purchase Agreement for FAS by the Withelders. FAS thus has
suffered an immediate loss of excess of $4 million.
230. As a direct and proximate result of defendants' actions Plaintiffs have also incurred
substantial legal and consultant fees and other such costs and expenses.
231. Plaintiffs have also suffered significant emotional distress, pain and anxiety due to
the Defendants' actions.
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232. The DEP Defendants continue to persecute the Plaintiff, and have deprived the
Plaintiff of his due process, in violation of his Constitutional rights.
COUNT!
DENIAL OF FOURTEENTH AMENDMENT
SUBSTANTIVE DUE PROCESS RIGHTS
233. Plaintiffs incorporate herein as if set forth fully herein all preceding paragraphs.
234. Plaintiff, Frompovicz and Far Away Springs, use and/or enjoyment of the rights
and the privileges diligently and legally acquired, in the FAS Operations Permit has been
substantially limited by governmental decisions averred to be based on political and/or
personal reasons/animus unrelated to the merits of the proposed use of the property or the
requirements of the law.
235. Plaintiffs have established possession of a property interest entitling them
substantive due process protection.
236. Defendants did recklessly, intentionally, deliberately, maliciously, willfully and
outrageously act in an arbitrary and capricious manner for personal reasons unrelated to
the merits of the proposed use of the property and the laws and to otherwise deny the
Plaintiffs due process of law when they treated Plaintiffs in a significantly different
manner than other similarly situated landholders.
237. Defendants' actions were motivated by evil motive or intent, and/or involved
reckless or callous indifference to the protected rights of the plaintiffs under the state and
federal constitutions.
238. Defendants' disparate actions, especially the totally opposite treatment of two
exactly identical parties, similarly operating and with same customers, on numerous
occassions, when taken as a whole, shock the conscience.
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WHEREFORE, Plaintiffs are entitled as a matter of law to compensatory and
punitive damages for any injury stemming from the above actions of Defendants acting in
their individual capacities in excess of$150,000.00 (One Hlllldred Fifty Thousand Dollars).
Plaintiffs also seek injunctive relief from the Defendants in their official capacities in order
to permit Plaintiffs full use of the FAS permit.
COUNT II
DENIAL OF FOURTEENTH AMENDMENT
PROCEDURAL DUE PROCESS RIGHTS
240. Plaintiffs have no recourse to appeal the actions of the DEP to the EHB. As noted,
the items listed in the June 18 Field Order were in no way onerous and the list itself was not
difficult to accomplish, as noted by Defendants admission on Nov 4, that all items were
addressed. Earth Res by Letter to Defendants on July 14, 2015, within the 30 day period of
appeal, addressed all issues listed by DEP defendants. If in fact Defendants would have
responded that we will not issue the "Correction Completed Notice" FAS would have had
an ability to appeal the Order to the EHB. DEP Defendants continue to refuse to issue the
"Corrections completed Notice", that continues to deny Plaintiff the right to resume
operations. Plaintiffs believe and aver that defendants, acting under color of state law,
deprived Plaintiffs of a protected property interest and that the state procedure for
challenging the deprivation does not provide for a reasonable remedy (monetary
damages) which the Plaintiffs may seek recourse to in order to rectify the illegal acts of
the Defendants.
241. Plaintiffs therefore have been deprived of their constitutional right to procedural
due process.
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their individual capacities in excess of $150,000.00 (One Hundred Fifty Thousand Dollars).
to permit Plaintiffs full use of the property.
COUNT III
CONSPIRACY TO DENY DUE PROCESS RIGHTS
243. Defendants did recklessly, intentionally, arbitrarily, capriciously, deliberately,
maliciously and willfully conspire/collude with each other, share the same general
conspiratorial objective, and/or came to an agreement between them to inflict a wrong
against or injury upon the Plaintiffs and/or commit an overt act that resulted in
foreseeable damage to the Plaintiffs.
244. PA. DEP defendants, and its' officials and employees personally participated in
the conspiracy by arbitrarily and capriciously applying 40 CFR 141, SDWA rules and
related policies and violating provisions of the SDWA in such a manner as to be
considered an official policy and custom of the Department.
245. PA.Dept. Agr. defendants, and its' officials and employees personally participated
in the conspiracy by arbitrarily and capriciously applying FDA rules and regulations at
21CFR 129, and related policies and violating provisions of the law in such a manner as
to be considered an official policy and custom of the Department.
246. Said arbitrary and capricious and unequal application of the rules and regulations
violated Plaintiffs' constitutional rights causing Plaintiffs the above-described injuries.
53
their individual capacities in excess of $150,000.00 (One Hundred Fifty Thousand
Dollars). Plaintiffs also seek injunctive relief from the Defendants in their official
capacities in order to permit Plaintiffs full use of the property.
COUNT IV
MUNICIPAL POLICY, PRACTICE AND CUSTOM
248. Defendant Agencies and employees thereof, adopted, maintained and/or
acquiesced to a custom, policy and practice, which permitted the arbitrary and capricious
actions and decisions of the individual Defendants, thereby denying permit holders and
his customers the due process of law.
249. Defendants did recklessly, knowingly, outrageously and maliciously fail to ensure
that the Pa Code Title 25, SDWA and the FDA regulations codified at CFR 129 and CFR
140 were literally, uniformly and correctly interpreted and enforced in an unbiased and non-
discriminatory manner to the Plaintiffs.
their individual capacities in excess of $150,000.00 (One Hundred Fifty Thousand Dollars).·
COUNTY
TAKING WITHOUT JUST COMPENSATION
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251. As a direct and proximate result of defendants' arbitrary and capricious application
of the law, Plaintiffs are unable to utilize the property for its' intended purpose.
252. Said actions by the defendants were a de facto taking of the property without just
compensation, thereby causing injury in the form of monetary damages to the Plaintiffs.
253. It is believed and averred that the Plaintiffs will continue to suffer the aforesaid
damages for an unknown time in the future until such time as this court issues an injunction
permitting Plaintiffs to operate their business as for which it is intended.
their individual capacities in excess of$150,000.00 (One Hundred Fifty Thousand Dollars).
COUNT VI
THIRD PARTY INTERFERENCE WITH BUSINESS RELATIONSHIP
254. Plaintiff incorporates herein as if set forth fully herein all preceding paragraphs.
255. It is believed and averred that the Defendants have interfered with the third party
business relationships and/or contracts of Far Away Springs, by enforcing regulations
against the plaintiffs totally opposite regulation enforcement for functionally identical
applications for other business which were allowed to operate, unchecked with no
regulation thus to enticing Plaintiffs' customers to purchase their spring water needs from
supplier in favor with DEP. sell water; by using their authority as state actors and
positions of authority within the state agencies to thwart the instant Plaintiff's permit
applications, and interfere with those already granted.
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256. Said actions by the defendants have injured Plaintiffs causing them damages as set
forth above.
COUNT VII
EQUAL PROTECTION
258. It is believed and averred that the Defendants have denied permit applications and
operations parameters to the Plaintiff that are functionally identical to applications and
operations of other competitive water suppliers which were allowed to flaunt regulations
and violations overlooked, by using their authority as state actors holding state positions
of authority within the Agencies to thwart the instant Plaintiffs operation and conduct of
business in an equal manner.
259. Said actions by the defendants have injured Plaintiffs causing them damages as set
forth above.
COUNT VIII
RETALIATION-42 U.S.C. §1983
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COUNT IX
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
262. Plaintiffs Stanley Frompovicz, Valeriya Frompovicz and NicoleFrompovicz have
all sustained significant damages and suffered injuries as a result of the Defendants'
disparate treatment and/or conduct manifested towards them.
their individual capacities in excess of$150,000.00 (One Hundred Fifty Thousand Dollars).
JURY DEMAND
Plaintiff demands a trial by jury on all issues so triable.
FILED
Dated:l0/16117
OCl \ 6 2017
~ BARKM , Clerl<
Plaintiff - Pro Se By~-Oep. Clerl<
71 W. Jefferson Lane
J\uburn,Pa. 17922
Phone 570-527-4318
Email: frompovicz@hughes.com
57
VERIFICATION
I, Stanley F. Frompovicz, swear under penalties of perjury under the laws of
the United States that the statements and averments contained in the foregoing,
"Plaintiff's Amended Complaint,
are true and correct to the best of my knowledge and understanding.
Dated, October 15, 2017
~
Plaintiff, pro se
Respectfully submitted,
Dated, October 15, 2017
Stanley F. Frompovicz,
Auburn, Pa. 17922
frompovicz@hughes.net
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA
STANLEY F. FROMPOVICZ, JR., )

)
Plaintiff, ) Case No.: 5:17-cv-02790-JFL
)
v. ) HONORABLE JUDGE
) JOSEPH F. LEESON, JR.
)
PENNSYLVANIADEPAR1MENT OF )
ENVIRONMENTAL PROTECTION, )
ETAL., ) JURY 1RIAL DEMANDED
)
Defendants.
CERTIFICATE OF SERVICE
I, Stanley F. Frompovicz, Jr., hereby certify that on this 16ili day of October, 2017,
a true and correct copy Plaintiffs Amended Complaint was served on counsel of record
in the manner indicated below:
VIA EMAIL/PDF (mskolnik@attorneygeneral.gov)

Matthew Skolnik, Esquire
Deputy Attorney General
Pennsylvania Office of Attorney General
Eastern Regional Office, Civil Litigation Section
21 S. 12ili Street, Third Floor
Philadelphia, PA 19107
Respectfully Submitted,
Dated: 10/16/17
Auburn, Pa. 179220\
Phone 570-527-43180
Email: frompovicz@hughes.net

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Case 5:17-cv-02790-JFL Document 13-1 Filed 10/16/17 Page 1 of 59

IN THE UNITED STATES DISTRICT COURT

STANLEY F. FROMPOVICZ, JR., )

as Environmental Protection Specialist and Chief )

Plaintiffs, Stanley F. Frompovicz, Jr. ("Plaintiff' or "Frompovicz"), Valeriya V.

Frompovicz ("Valeriya Frompovicz") and Nicole A. Frompovicz ("Nicole Frompovicz")

in a prose capcity, file this Amedend Complaint against Defendants, Pennsylvania

Department of Environmental Protection ("DEP"), David Hissner ("Manager of Pottsville

PADEP"), Lisa Daniels ("Director ofPADEP Bureau of Safe Drinking Water" or

"Daniels"), Dawn Hissner ("Chief of Monitoring and Compliance of PADEP"), Lynne

Sheetz ("Manager of Operations Monitoring and Compliance of PADEP" or "Sheetz"),

Rod Nesmith ("Regional Manager ofPADEP Bureau of Safe Drinking Water" or

"Nesmith"), Jeffrey Algyer ("Regional Manager of PADEP Bureau of Safe Water

of Safe Drinking Water of PADEP" or "Mittner"), Peter Mangak ("Environmental

Protection Specialist and Chief Enforcement Officer ofPADEP" or "Mangak"), Todd

Water of PADEP" or "Yagiello"), Brian Busher ("Chief Permit Engineer of Bureau of

Water Reporting System of PADEP" or "Minnich"), Shawn Cable ("Technical and

Financial Services" or "Cable"), Joshua Krammes ("Sanitarian" or "Krammes"), Thomas

Shaul ("Chief of Technical Service" or "Shaul"), Thomas Fredricci ("Fredricci"), Chad

members of the Pennsylvania Department of Environmental Protection, Pennsylvania

Department of Agriculture ("DOA"), Lydia Johnson ("Director of the Bureau of Food

Safety and Laboratory Services of P ADOA" or "Johnson"), Gary Landiak ("Plant

Inspector of PADOA" or "Landiak"), Judith Miller ("Food Safety Supervisor of

as members of the Pennsylvania Department of Agriculture jointly and serverally.

Plaintiff avers as follows:

1. Plaintiff Stanley Frompovicz, d/b/a FAS owns a Property located in South

Manheim Township, Schuylkill County, Pennsylvania, and an Operations Permit issued

2. PlaintiffValeriya V. Frompovicz is the wife and dependent of Plaintiff Stanley F.

on which the water operation is located.

3. Plaintiff, Nicole Anne Frompovicz is the daughter and minor dependent of

means of support, other than through her father, Stanley F. Frompovicz Jr

4. Defendant, Pennsylvania Department of Environmental Protection ("DEP") is a

5. Defendant, David Hissner is employed by the PADEP as Manager of the Pottsville

Hissner. He is sued in his official and individual capacity.

8. Defendant, Lynne Sheetz is employed by the PA DEP as the Manager of

Operations Monitoring and Compliance of the South Central Regional Office. It is

9. Defendant, Rod Nesmith is employed by the PA DEP as Regional Manager of the

official and individual capacity.

10. Defendant, Jeffrey Algyer is employed by the PA DEP as Regional Manager of

specifically in charge of statewide Operations and Monitoring. He supervises regional

managers of compliance and enforcement. It is believed he reports to Defendant, Dawn

Hissner. He is sued in his official and individual capacity.

sued in his official and individual capacity.

12. Defendant, Peter Mangak is employed by the PA DEP as Environmental

Protection Specialist and Chief Enforcement Officer of the Northeast Region. It is

Office. It is believed he reports to Defendant, Dawn Hissner. He is sued in his official

and individual capacity.

and regulations across the entire state of Pennsylvania. It is believed he reports to

Defendant, Dawn Hissner. He is sued in his official and individual capacity.

Financial Services Section. He is sued in his official and individual capacity.

18. Defendant, Joshua Krammes is employed as sanitarian for the Pennsylvania

Department of Environmental Protection. It is believed he reports to Defendant, David

Hissner. He is sued in his official and individual capacity.

19. Defendant, Thomas Shaul is employed by the PA DEP as Chief of Technical

Services. He is sued in his official and individual capacity.

20. Defendant, Thomas Fredricci is employed by the Pennsylvania Department of

Environmental Protection. He is sued in his official and individual capacity.

21. Defendant Chad Reisch is employed by the Pennsylvania Department of

Environmental Protection as a geotechnical hydrogeologist. He is sued in his official and

23. Defendant, Pennsylvania Department of Agriculture ("DOA") is a governmental

25. Defendant, Gary Landiak is employed by the PA DOA as Plant Inspector of

Region 7. It is believed he reports to Defendant, Judith Miller. He is sued in his official

and individual capacity.