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EQT Production Co. v. Department of Environmental Protection

ELR Citation: 48 ELR 20053
Nos. 6 MAP 2017, (Sup. Ct. Pa., 03/28/2018)

Pennsylvania's highest court held that the $10,000/day civil penalty under the Clean Streams Law does not apply to each day that pollutants leaked from an impoundment remain in the groundwater and then leach into other waters of the Commonwealth. The case arose after the state environmental agency assessed penalties against a company for leaks from an impoundment used to contain impaired water flowing back from hydraulic fracture gas wells. The agency argued that the Clean Streams Law prohibits the continuing or indirect flow of unpermitted industrial waste or other substances causing pollution into any part of a water of the Commonwealth--even after an initial release is corrected at the source--and that the movement of contaminants from a given water into another water gives rise to serial violations. The law, however, is ambiguous as it relates to the ongoing migration of previously released contaminants. In addition, had the state legislature intended to impose a water-to-water theory of serial, ongoing violations, it could have provided so expressly. In the absence of such clarity, a more reasonable interpretation rests on protecting the waters at the place of initial entry.