DEP, 100 supporters want court to reverse fine limits

Case would affect Pa. Clean Streams Law

Nearly 100 Pennsylvania elected officials, environmental groups and businesses signed on to legal briefs this week to support the Department of Environmental Protection in a state Supreme Court case that could severely restrict the maximum fines Pennsylvania can issue for pollution to state waterways.

The environmental agency is appealing a Commonwealth Court decision from January that said fines for spills into state streams and groundwater must be based on the duration of the initial release and not on the days pollution continues to flow through the hydrologic system or seep out of contaminated soil.

The case could revise a four-decade-old interpretation of the state’s signature clean water law and invite challenges to nearly a dozen other major state environmental laws that contain similar language, according to former DEP Secretary David Hess, who wrote an online post calling it “one of the most important environmental cases in recent decades.”

Downtown-based EQT Corp. brought the case to challenge the DEP’s position that residual pollution constitutes a continuing violation of the state Clean Streams Law that the company said “leads to the absurd result of never-ending and unquantifiable liability.”

A three-judge panel of the appeals court agreed with EQT and said the DEP’s reading “would be tantamount to punishing a polluter indefinitely,” or at least for as long as any remnant of the initial

pollution stays in state waters, “even when a polluter is taking aggressive steps to remediate.”

The DEP is urging an environmental hearing board to fine EQT at least $4.5 million for a wastewater pit leak and its aftereffects, which the DEP says polluted highquality streams, an exceptional value wetland and an expansive area of groundwater around a Marcellus Shale drilling site in Tioga County beginning in 2012.

EQT contends the most it can be fined is less than a tenth of what the DEP is seeking.

A friend of the court brief this week — signed by 29 state House members, a state senator, 16 municipal elected officials, 42 nonprofits and six small businesses — said the DEP’s position fulfills the intent of the law and “both incentivizes remediation and provides a powerful incentive not to pollute in the first place.”

Another brief, by the Pennsylvania Fish and Boat Commission, used the example of a 2006 spill of lye from derailed train cars in McKean County to demonstrate that the Commonwealth Court’s construction of the Clean Streams Law would lead to “an unreasonable result.”

The lye spill significantly harmed “nearly everything in its path” for more than 30 miles downstream, but it would have garnered a DEP fine of, at most, $10,000 if the Commonwealth Court ruling had applied at the time, instead of the $7.3 million the state agencies split in a settlement.

EQT’s brief is due June 12. The state Supreme Court has not yet set a date for arguments in the case.