Pa. Supreme Court rejects DEP’s method for calculating water pollution penalties

By Sandra Lane | May 2, 2018

HARRISBURG — In a 5-2 decision, the Pennsylvania Supreme Court recently rejected the state Department of Environmental Protection’s method for assessing water contamination fines in a dispute with EQT Production Company over damages caused by water that had leaked from the company's hydraulic fracture gas wells in 2012.

The high court’s ruling, which was handed down on March 28, was delivered by Chief Justice Thomas Saylor and supported by justices Max Baer, Debra McCloskey Todd, David Wecht and Sally Updyke Mundy. The ruling was disputed in part by justices Kevin Dougherty and Christine Donohue, who argued that the court should not “second-guess” the extent of the penalties.

DEP had appealed a ruling by the Commonwealth Court that had limited how much money it could fine the company under the Pennsylvania Clean Streams Law. DEP initially had sought $4.5 million in penalties.

The crux of the case centered around DEP’s soil-to-water theory, which says that “civil penalties may be asserted against EQT as long as any contaminant remains in the environment.” EQT had questioned the veracity of the theory and alleged that it created significant uncertainty and potentially unending civil liabilities for violators. Additionally, EQT argued that such a position was contrary to the plain wording of the law—and the majority of the justices agreed.

“Once contaminants no longer pass through the initial point of entry into water, it is reasonable to say that the substances are no longer being released into any of the waters of the Commonwealth on that pathway,” Justice Saylor wrote in the majority opinion. 

“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, it would have said so more expressly.”

However, not everyone agreed with this.

In his concurring and dissenting opinion, Justice Donohue, who was joined by Justice Dougherty, said the majority’s opinion was “overly restrictive and not faithful to the actual language of the provision.” He further argued that the words “initial” and “release” do not appear in the statute and that the law “also prohibits a person from permitting the flow of those industrial wastes to continue.”

“The majority’s interpretation is clearly aimed at protecting against limitless penalties for pollution, but in my view, it does so at the expense of abating pollution,” Donohue wrote. 

“It is not the role of the court, however, to second-guess and/or limit the scope of penalties imposed by the General Assembly. Instead, our focus must be confined to interpreting penalty provisions in accordance with the rules of statutory interpretation.”

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