Fracking Company, DEP Spar Over Ongoing Civil Penalties for Pollution, Allowing the state Department of Environmental Protection to issue ongoing penalties against companies for the continued presence of pollutants in state waters would essentially give the agency an unlimited ability to fine companies for pollution beyond their control, an attorney representing a prominent natural gas company told the state Supreme Court on Tuesday by Max Mitchell, November 28, 2017, The Legal Intelligencer
Allowing the state Department of Environmental Protection to issue ongoing penalties against companies for the continued presence of pollutants in state waters would essentially give the agency an unlimited ability to fine companies for pollution beyond their control, an attorney representing a prominent natural gas company told the Pennsylvania Supreme Court on Tuesday.
Duane Morris attorney Robert Byer, who represented EQT Production before a full complement of the Supreme Court in Harrisburg, told the justices that the millions of dollars of ongoing penalties the DEP is seeking to impose on the company related to pollution caused by fracking leaks are unreasonably excessive and go beyond what the law allows.
“When do civil penalties start and end?” he asked. “There has to be somewhere where it ends.”
Byer was arguing in favor of having the justices affirm the Commonwealth Court’s January decision that said Section 301 of the Clean Streams Law does not allow for “the imposition of ongoing penalties for the continuing presence of an industrial waste in the waterway of the commonwealth following its initial entry into the waterways of the commonwealth.”
However, according to attorney Jonathan Massey, who is representing the DEP, following such a limited interpretation of the statute could jeopardize the agency’s ability to enforce the state’s Clean Streams Law.
“This is one of the most important environmental cases the court has heard in recent years,” Massey said, adding that it raises “fundamental questions about enforcing the Clean Streams Law.”
The case stems from a leak that occurred in one of EQT’s subsurface impoundments [nice way to say toxic frac waste water pit?] that contained contaminated water. After EQT discovered the leak, the DEP demanded payment of $1.27 million in penalties, claiming that, based on its position that each day the pollutants remained in the subsurface soil and passively entered groundwater or surface water constituted a violation, the company had continuously violated the Clean Streams Law.
EQT disputed the DEP’s approach, maintaining that the Land Recycling and Environmental Remediation Standards Act, or Act 2, determines a company’s essential remediation efforts. The company commenced an original-jurisdiction proceeding in the Commonwealth Court per the Declaratory Judgments Act, court documents said. The agency then lodged a complaint against EQT before the Environmental Hearing Board seeking more than $4.5 million, including levies of up to $10,000 per day.
According to Massey, EQT’s interpretation goes against the text of the Clean Streams Act, the purpose of the law and the act’s legislative history, which he said had repeatedly favored stronger penalties.
“All of that contemplates ongoing violations,” Massey said.
The law, according to Massey, clearly indicates that penalties should accrue each time the pollution moves from one body of water to the next. He was dismissive of the argument that the agency could levy unlimited penalties, noting that the fines are always pegged to specific scientific findings.
Although the only penalties at issue in the case are civil penalties, rather than damages or fines for remedial actions, Massey said limiting the agency’s ability to levy the ongoing penalties would “hamstring” the agency’s enforcement abilities. The penalties, he said, are intended to help deter companies from engaging in activities that could lead to leaks, to encourage prompt remedial action when a leak occurs and to help reimburse for lost resources.
“The fact that we might have other ways to address this issue is no reason to hamstring us,” Massey said. [Emphasis added]
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