153 A.3d 424
Pa. Commw. Ct.2017Background
- EQT owned a fracking wastewater impoundment (Pad S) that leaked into groundwater; EQT notified DEP, emptied the impoundment, patched the liner, excavated contaminated soil, and entered Act 2 remediation for groundwater.
- DEP proposed a large civil-penalty assessment based primarily on its view that violations continued daily while pollution remained in Commonwealth waters, calculating continuing-violation penalties for many days and multiple discharge points.
- EQT sought pre-enforcement declaratory relief in Commonwealth Court challenging DEP’s interpretation of Sections 301, 307, and 401 of The Clean Streams Law; the case was initially dismissed, reversed by the Pennsylvania Supreme Court (EQT II), and remanded.
- On remand EQT moved for summary relief asking the Court to declare that Sections 301/307/401 do not authorize ongoing daily penalties for the continuing presence or downstream movement of previously discharged industrial waste.
- The Court limited its analysis to Section 301 (industrial waste) because the leak entered groundwater (not a §307 surface-water “discharge”); parties agreed §301 applies to the initial entry of industrial waste into Commonwealth waters.
Issues
| Issue | Plaintiff's Argument (EQT) | Defendant's Argument (DEP) | Held |
|---|---|---|---|
| Whether Section 301 authorizes continuing daily civil penalties for each day pollution remains or moves among "waters of the Commonwealth" after an initial unpermitted entry | A violation occurs only on days industrial waste is actively discharged or enters from outside Commonwealth waters; once the active discharge stops, §301 violations cease | §301 authorizes a continuing-violation theory: each day the pollutant remains or flows from one water or part to another constitutes a new violation, justifying daily penalties until remediation | Court held §301 prohibits the initial active discharge/entry of industrial waste into Commonwealth waters but does not authorize ongoing daily penalties for passive continuing presence or movement of that waste after the initial entry; DEP’s interpretation rejected |
Key Cases Cited
- EQT Prod. Co. v. Dep’t of Envtl. Prot. of Commonwealth, 114 A.3d 438 (Pa. Cmwlth.) (initial Commonwealth Court dismissal of declaratory action)
- EQT Prod. Co. v. Dep’t of Envtl. Prot., 130 A.3d 752 (Pa.) (Supreme Court reversal permitting pre-enforcement declaratory review)
- Commonwealth v. Harmar Coal Co., 306 A.2d 308 (Pa. 1973) (polluted underground water can pollute surface water; discharge into surface water is the critical illegal conduct)