HARRISBURG – A planned state Department of Environmental Protection appeal related to penalties under the Clean Streams Law could be potentially rendered moot after the Environmental Hearing Board sets a penalty amount early this year.
In its Jan. 11 ruling in EQT
Production Company v. Department of Environmental Protection, the
Commonwealth Court held that an entity is no longer in violation of the law
after any unpermitted discharges stop, even if the affected waters are still
polluted as a result of previous discharges.
“The interesting twist – while the Commonwealth Court’s
decision was pending, the Environmental Hearing Board held a hearing on DEP’s
civil penalty complaint, and the parties have just about wrapped up their
briefing to the EHB,” Saul Ewing LLP partner Andrew Bockis told the Pennsylvania Record.
“This means that
the EHB will be in a position to adjudicate a penalty amount early this year,
as opposed to the months it will take for the parties to brief DEP’s appeal to
the Supreme Court.”
The DEP said following the Commonwealth Court ruling that it
intended to take its legal battle against EQT to the Pennsylvania Supreme
Although he feels “the Commonwealth Court provided a
well-articulated basis for its decision,” Bockis said the DEP has an automatic
right to appeal the decision to the commonwealth’s high court, since EQT originally
chose to file its case in the Commonwealth Court’s jurisdiction.
The Supreme Court ruled in November 2015 that EQT
had the right to seek an immediate judicial declaration in Commonwealth Court
regarding the DEP’s interpretation of the law, instead of having to first take
its argument to the state Environmental Hearing Board.
However, Bockis said the current state Supreme Court
looks much different than the November 2015 one did.
“Here, the Supreme Court has added four new justices in the
last dozen or so months, so the parties will be addressing a court that has a
very different makeup than the November 2015 Supreme Court,” Bockis said. “That
was a 3-1 decision, with only two of the justices that ruled with the majority
remaining on the court. That means there will be four new sets of eyes weighing
in on this issue.”
Bockis said the Commonwealth Court’s ruling affects “any
industry subject to regulation by the Department of Environmental Protection
under the Clean Streams Law, which is to say, many, many industries.”
“It runs the gamut from municipal wastewater facilities to
oil and gas activities to manufacturing operations,” he said.
In addition, Bockis said the ruling “reinforces the
importance of performing a reality check on proposed penalties.”
“The Commonwealth Court provided a meaningful counterbalance
to the strict cleanup liability that Pennsylvania courts have otherwise found
to exist under The Clean Streams Law,” he said.
“In other words, while DEP has
the authority to require certain entities to remediate pollution regardless of
fault, the Commonwealth Court held that in assessing penalties, violations ‘require
some culpable action or inaction by the polluter.’”