On March 28 the Pennsylvania Supreme Court, in a 5 to 2 decision, ruled the $4.5 million fine imposed by DEP against EQT drilling for leaks in 2012 from a 6 million drilling wastewater impoundment in Tioga County were excessive, in part, and not supported by language in the 1937 state Clean Streams Law.
The key issue was whether, as EQT contended, only the first day of an illegal discharge into surface or groundwater should be considered a violation of the Clean Stream Law and each subsequent day should not be considered a continuing violation. EQT asserted this interpretation creates significant uncertainty and potentially unending civil liability for the company as long as the Clean Streams Law is interpreted to say they are subject to penalties for as long as “any” contaminants remain in ground or surface water.
DEP contended that each day does constitute a continuing violation because contaminants are moving within ground or surface water; that movement amounts to an unpermitted continuing discharge or indirect flow of contaminants.
The Court’s decision said:
We appreciate the critical need for protection to vindicate the constitutional entitlement of the citizenry to a clean environment and recognize that the Clean Streams Law is designed as a mechanism to advance this salutary objective.
Nevertheless, and at bottom, we believe that if the General Assembly wished to create the sort of massive civil penalty exposure administered by the Department on a strict-liability basis, see Brief for Appellant at 34, it would have said so more expressly. In the absence of such clarity, we find the agency’s expansive construction of a statute that is inexplicit in such regards to be too unreasonable to support an affordance of deference.”
The Court also cast doubt on the previously controlling case on these penalties issues Harmar Coal:
We also do not regard the decision in Harmar Coal as controlling. That case concerned the application for a permit to authorize pumping of untreated acid mine drainage from places of relative containment (the bases of coal mines) into surface waters of the Commonwealth.
The Court simply did not consider the validity of a serial-violation theory predicted on remote instances of contaminants moving from uncontained parts of waters into other parts of waters.
The Court said plainly: “The mere presence of a contaminant in a water of the Commonwealth or a part thereof does not establish a violation of Section 301, 307, or 401 of the Clean Streams Law, since movement of a contaminant into water is a predicate to violations.
The Court’s decision conflicted with DEP’s interpretation that each day contaminants moved through ground or surface water was a continuing violation and subject to penalty– the so-called water-to-water theory in the case.
The Court did not take a position on the issue of the migration of contaminants through soil into water and the resulting penalties. The soil-to-water theory, the Court said, was to be an issue in EQT’s challenge to a penalty now working its way through Commonwealth Court.
The Court concluded by saying: “Finally, nothing in this opinion should be read to constrain a broad reading of the Clean Streams Law relative to administrative powers of enforcement pertaining to the abatement and remediation of pollution, as presently we are focused on aspects of the statute that are integrally interrelated with its penalty provisions.”
Click here for a copy of the opinion.
