The Pennsylvania Commonwealth Court on January 11, 2017, reversed a long-standing Pennsylvania Department of Environmental Protection civil penalty policy to calculate each day contamination remains in groundwater as a separate violation, even though the source of the contamination has been abated.  In the case of EQT Production Company v. Department of Environmental Protection, No. 485 M.D. 2014, a breach in the liner of a surface impoundment holding natural gas well fracking wastewater resulted in groundwater contamination. The operator, EQT, drained the impoundment and repaired the liner, thereby abating any continuing discharge to groundwater. In its calculation of a civil penalty for the incident pursuant to the Pennsylvania Clean Stream Law, the Department followed its long-standing policy to consider each day the contamination remained in the groundwater as a separate violation of the Clean Streams Law and therefore based its assessment on a maximum of $10,000 per day of violation, and calculated a proposed assessment at a staggering $81,760,000.  Under its theory, each day the contamination moved to different “parts” of “waters of the Commonwealth” constituted a separate violation.

EQT contended, and the Commonwealth Court agreed, that the plain language of the Clean Streams Law and its implementing regulations, did not support such a view, holding instead that the “discharge” of contaminates to groundwater constituted the violation under the Clean Streams Law, and that , accordingly once the discharge ceased, so did continuing civil penalty liability. In response to the Department’s policy contention that such a result would eliminate any incentive for a responsible party to remediate continuing groundwater contamination after the discharge ceased, the Court observed that the Clean Streams Law affords other enforcement remedies including injunctive relief to compel remediation.

Under this ruling, taking prompt action to abate any release, spill or leak into groundwater will therefore greatly reduce potential civil penalty liability under the Clean Streams Law.

The Department will likely appeal the Court’s decision to the Pennsylvania Supreme Court. It is an appeal as of right since this case was heard in the original jurisdiction of Commonwealth Court.

For further information contact Vince Pompo. Vince is partner and chairman of the Municipal Law Department and the Environmental Law Practice Group. His practice areas include municipal, land use and environmental law.