Two months ago, the Supreme Court of Pennsylvania heard arguments in what may prove to be one of the state’s most consequential environmental law cases in recent years.
The case involves a leak from a frack water impoundment pit located in Tioga County. The impoundment was located near a natural gas well operated by EQT Production Company, 1,500 feet from Rock Run, a tributary of Babb Creek. Rock Run is a 3.25 mile-long tributary which has been classified a Class A Wild Trout/High Quality Stream. Additionally, the watershed of Rock Run includes several Exceptional Value Wetlands.
The Department of Environmental Protection was told by EQT on May 30, 2012 that the pit had begun leaking (despite being lined with “an impervious synthetic membrane”). By June 11, 2012, it was completely drained and EQT had begun abatement measures pursuant to Act 2.
At issue at the Commonwealth Court was the Department of Environmental Protection’s authority to levy penalties during on-going releases of pollution pursuant to the Pennsylvania Clean Streams Law. EQT v. DEP, 153 A.3d 424, 427; 35 Pa. Stat. Ann. § 691.301 (prohibiting persons from discharging or continuing to discharge industrial wastes into “the waters of the Commonwealth … except as hereinafter provided in this act”); 35 Pa. Stat. Ann. § 691.307(further providing that such discharges may be authorized “by the rules and regulations of the department” or through a Department permit), and 35 Pa. Stat. Ann. § 691.401 (declaring discharges of pollution to be a nuisance). The enforcement provisions contained in Title VI of the Clean Streams Law provides: “[a]ny activity or condition declared by this act to be a nuisance or which is otherwise a violation of this act, shall be abatable in the manner provided by law or equity for the abatement of public nuisances.” 35 Pa. Stat. Ann. § 691.401. In addition to the allowance of tort actions, there is a possibility for criminal fines as well as an assessment of civil penalties by the DEP.
While one might presume that the statutory provision specifying the assessment of fines for a release might constitute the main thrust of the action at bar, the Commonwealth Court narrowed their analysis to the issue of whether, in the words of the Department: “every time a person “allow[s] his, her, or its industrial waste or pollutional substance to flow from one water of the Commonwealth into another water of the Commonwealth,” the person is committing a new and separate violation of Section 301, 307, and/or 401 of The Clean Streams Law.”
The Commonwealth Court ultimately granted EQT’s petition for declaratory judgment. Further, it held: “that Section 301 of The Clean Streams Law is a provision that prohibits acts or omissions resulting in the initial active discharge or entry of industrial waste into waters of the Commonwealth and is not a provision that authorizes the imposition of ongoing penalties for the continuing presence of an industrial waste in a waterway of the Commonwealth following its initial entry into the waterways of the Commonwealth.”Id.
As such, the fines levied by the DEP were ultimately reduced from $4.5 million (the largest to ever come from the agency) to $1.1 million.
Many of DEP’s arguments on appeal revolve around interpreting the Clean Streams Law in light of the act’s purpose. It is being closely watched with several amicus briefs having been submitted by industry and environmental groups, as well as Pennsylvania politicians. It should be noted that DEP’s argument is similar to that of the Pennsylvania Environmental Defense Foundation for whom the same Court held against the same agency in determining that royalties from oil and gas leases on public land are to be appropriated to the Department of Conservation of Natural Resources rather than the Commonwealth’s general fund. The outcome of the appeal could very well signal the continued teething of the Pennsylvania Environmental Rights Amendment, which was part of the basis of PEDF and guarantees “a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment” and creates a public trust in natural resources.
Matt Fair, Pennsylvania Cases To Watch In 2018, 2017 Law360 353-20 (January 1, 2018).
EQT Production Company v. DEP, 153 A.3d 424, 426 (Pa. Cmwlth Ct. 2017).
DEP v. EQT, 2017 EHB 1-2.
EQT v. DEP, 153 A.3d 424, 426.
Id.; Land Recycling and Environmental Remediation Standards Act of May 19, 1995, P.L. 4, 35 P.S. §§ 6026.101-.908.
EQT v. DEP, 153 A.3d 424, 433.
Laura Legere, EQT fined $1.1 million for Marcellus Shale pit leak, Pittsburgh Post-Gazette.com, Wednesday, January 31, 2018 8:23AM, (http://www.post-gazette.com/powersource/companies/2017/05/31/EQT-fined-1-1-million-for-Marcellus-Shale-pit-leak-Pennsylvania-DEP/stories/201705310252).
Brief of Petitioner-Appellant at 1, EQT v. DEP, No. 6 MAP 2017 (Pa. August 14, 2017).
PEDF v. DEP, 161 A.3d 911 (Pa. 2017).
Pa. Const. art. I, § 27.