EQT Production Co. v. Department of Environmental Protection of the Commonwealth ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
EQT Production Company, :
Petitioner :
:
v. : No. 485 M.D. 2014
: Argued: November 15, 2016
Department of Environmental :
Protection of the Commonwealth :
of Pennsylvania, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE P. KEVIN BROBSON, Judge
OPINION BY JUDGE BROBSON FILED: January 11, 2017
I. INTRODUCTION
Before the Court for disposition is an Application for Summary Relief
in this original jurisdiction matter. Petitioner EQT Production Company (EQT)
seeks relief under the Declaratory Judgments Act1 with respect to the Department
of Environmental Protection’s (Department) interpretation of certain penalty
provisions under The Clean Streams Law.2 For the reasons set forth below, we
grant EQT’s Application for Summary Relief.3
1
42 Pa. C.S. §§ 7531-7541.
2
Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. §§ 691.1-.1001.
3
The Marcellas Shale Coalition and the Chamber of Commerce of the United States of
America filed amicus curiae briefs pursuant to Pa. R.A.P. 531. Their arguments align closely
with those advanced by EQT.
II. BACKGROUND
For purposes of this Application for Summary Relief, the undisputed
material facts are as follows. EQT owns and operates natural gas wells in Duncan
Township on a gas well pad known as “Phoenix Pad S.” EQT built a subgrade
impoundment (Pad S Impoundment), which included an impervious synthetic
membrane liner to contain the impaired water generated from hydraulic fracturing
(i.e., fracking). EQT concluded that it was likely that the Pad S Impoundment was
leaking into the subsurface beneath the impoundment.
On May 30, 2012, EQT notified the Department of the leak.
On June 11, 2012, within twelve days after notifying the Department, the Pad S
Impoundment had been completely emptied of the impaired water and sludge. By
June 15, 2012, EQT patched the liner and installed sumps and trenches at five
locations downgradient from the Pad S Impoundment to collect and/or intercept
groundwater that may be affected by the release. EQT also then entered into a
formal cleanup process under the Land Recycling and Environmental Remediation
Standards Act,4 commonly referred to as Act 2. On September 27, 2012, EQT
excavated the affected soils. EQT attained the Act 2 remediation standards for the
soil beneath the Pad S Impoundment and continued its efforts to attain the Act 2
standards for the groundwater.
4
Act of May 19, 1995, P.L. 4, 35 P.S. §§ 6026.101-.908. Under Act 2, a party is required
to clean up soil or groundwater to certain risk-based standards that the Department has
previously determined protect the environment. Act 2 does not require the remediator to entirely
remove a released constituent from the environment, if even technically feasible, but rather
provides a standard that, when met, releases a party from further cleanup liability for that
constituent. See Section 501(a) of Act 2, 35 P.S. § 6026.501(a).
2
On May 9, 2014, the Department proposed a Consent Assessment of
Civil Penalty for the leak, alleging violations of Sections 301, 307, and 401 of The
Clean Streams Law.5 The majority of the Department’s $1,270,871 proposed
settlement offer was based on “new, continuing, and ongoing impacts to the
multiple waters of the Commonwealth” after the initial discharge from the Pad S
Impoundment.
On September 19, 2014, EQT filed a Complaint in Action for
Declaratory Judgment with this Court, seeking a declaration that the calculation of
civil penalties under The Clean Streams Law by the Department was unlawful, to
which the Department responded by filing preliminary objections. On
October 7, 2014, the Department also filed a Complaint for Civil Penalties with the
Environmental Hearing Board (Board). On February 20, 2015, this Court
sustained preliminary objections by the Department and dismissed EQT’s
declaratory judgment action filed in this Court’s original jurisdiction, reasoning
that the harm was speculative because the Board had not yet made its penalty
determination. EQT Prod. Co. v. Dep’t of Envtl. Prot. of Com., 114 A.3d 438(Pa. Cmwlth.) (EQT I), rev’d, 130 A.3d 752 (Pa. 2015).
After this Court dismissed the Complaint in Action for Declaratory
Judgment in EQT I, EQT appealed to the Supreme Court. On December 29, 2015,
the Supreme Court reversed and remanded the matter for further proceedings.
EQT Prod. Co. v. Dep’t of Envtl. Prot., 130 A.3d 752 (Pa. 2015) (EQT II). The
Supreme Court concluded that the potential exposure to EQT, particularly given
the lack of an administrative remedy for challenging the Department’s
5
35 P.S. §§ 691.301, 691.307, and 691.401.
3
interpretation when EQT filed this action, “was sufficiently direct, immediate, and
substantial to create a case or controversy justifying pre-enforcement judicial
review via a declaratory judgment proceeding.” Id. at 758-59.
Following remand in this matter, on February 19, 2016, EQT filed
with this Court an Application for Interim Relief in the Form of a Stay of the
action before the Board for the penalty determination. EQT argued that the
resolution of the pending legal question regarding the validity of the Department’s
interpretation of Sections 301, 307, and 401 of The Clean Streams Law bore
directly on the Board’s decision for EQT’s penalty amount and required a stay.
By order dated April 8, 2016, this Court denied the Application for
Interim Relief. EQT Prod. Co. v. Dep’t of Envtl. Prot. (Pa. Cmwlth.,
No. 485 M.D. 2014, filed April 8, 2016) (Colins, J.) (EQT III). The Court
reasoned that a hearing before the Board was still necessary, because EQT will still
be subject to penalties for the original discharge of fracking water and EQT had
failed to show that a decision in this case would significantly alter the evidence at
the Board hearing. The Court also reasoned that a stay in the Board’s proceeding
would seriously and indefinitely delay the Department’s penalty complaint.
Finally, this Court noted, “[i]f EQT wishes to obtain a resolution of the legal issue
in this action from this Court prior to the [Board] hearing, it should file an
application for summary relief in time to allow the [C]ourt to rule prior to the
[Board] hearing and request that the matter be expedited.” Id., slip op. at 5.
On May 4, 2016, EQT filed with this Court its Application for
Summary Relief, challenging the Department’s interpretation of Sections 301, 307,
and 401 of The Clean Streams Law. In support of its application, EQT attached as
an exhibit a response by the Department to a discovery request by EQT filed in the
4
matter before the Board, where the Department elaborated on the penalty amount
that the Department is currently seeking from EQT. The Department provided the
following answer regarding the calculation of the penalty for the leak by EQT:
Penalties for continuing violations were assessed under
The Clean Streams Law for the continuing pollution to
groundwater. Assuming the violations began on
4/30/2012 (the first date on which the Department has
data showing the presence of pollution in groundwater),
the continuing violations penalties began to accrue on the
next day, 5/1/2012, up to and including the point at
which the calculation was completed on 9/25/2014, a
period of 878 days. The Department assessed continuing
violations penalties at a rate of $5,000.00 per day (half
the statutory maximum rate) for 878 days, for a total of
$4,390,000.00. When continuing violations penalties are
calculated for all five of the existing discharges at the
site, at $10,000.00 per day, for Sections 301/307 and 401
of The Clean Streams Law, the proposed assessment
through 9/25/2014 is $81,760,000.00.
Note that while groundwater continues to be polluted,
continuing violations penalties continue to accrue beyond
9/25/2014.
(Reproduced Record (R.R.) at 283a.)6
III. STANDARD FOR SUMMARY RELIEF
Declaratory judgment actions within the Court’s original jurisdiction
fall within the scope of Chapter 15 of the Pennsylvania Rules of Appellate
Procedure. See Pa. R.A.P. 1501(a)(3), 1532(b). “Summary relief under
Pa. R.A.P. 1532(b) is similar to the relief envisioned by the rules of civil procedure
6
The Court is uncertain as to how the Department calculated the total penalty figure that
the Department provided in its response to EQT’s discovery request. For this Application for
Summary Relief, however, we note that it is undisputed that the majority of the $81,760,000
originates from the Department’s contested interpretation that violations of The Clean Streams
Law persist after the initial discharge of prohibited substances into waters of the Commonwealth.
5
governing summary judgment.” Brittain v. Beard, 974 A.2d 479, 484 (Pa. 2009).
“‘An application for summary relief may be granted if a party’s right to judgment
is clear and no material issues of fact are in dispute.’” Jubelirer v. Rendell,
953 A.2d 514, 521 (Pa. 2008) (quoting Calloway v. Pa. Bd. of Prob. & Parole,
857 A.2d 218, 220 n.3 (Pa. Cmwlth. 2004)).
The purpose of the Declaratory Judgments Act is to “settle and to
afford relief from uncertainty and insecurity with respect to rights, status, and other
legal relations, and [the Declaratory Judgments Act] is to be liberally construed
and administered.” 42 Pa. C.S. § 7541(a). An action brought under the
Declaratory Judgments Act “‘must allege an interest by the party seeking relief
which is direct, substantial and present, . . . and must demonstrate the existence of
an actual controversy related to the invasion or threatened invasion of one’s legal
rights.’” Bowen v. Mount Joy Twp., 644 A.2d 818, 821 (Pa. Cmwlth.) (quoting Pa.
Institutional Health Servs., Inc. v. Dep’t of Corr., 631 A.2d 767, 771
(Pa. Cmwlth.), aff’d, 640 A.2d 413 (Pa. 1994)), appeal denied, 652 A.2d 1326(Pa. 1994). Granting or denying an action for a declaratory judgment is committed
to the sound discretion of a court of original jurisdiction. Gulnac by Gulnac v.
S. Butler Cnty. Sch. Dist., 587 A.2d 699, 701 (Pa. 1991).
IV. DISCUSSION
EQT challenges the Department’s interpretation of Sections 301, 307,
and 401 of The Clean Streams Law.7 The Department interprets the above sections
7
When interpreting a statute, this Court is guided by the Statutory Construction Act of
1972, 1 Pa. C.S. §§ 1501-1991, which provides that “[t]he object of all interpretation and
construction of statutes is to ascertain and effectuate the intention of the General Assembly.”
1 Pa. C.S. § 1921(a). “The clearest indication of legislative intent is generally the plain language
of a statute.” Walker v. Eleby, 842 A.2d 389, 400 (Pa. 2004). “When the words of a statute are
(Footnote continued on next page…)
6
of The Clean Streams Law as authorizing a penalty under a continuing violation
theory for every day that industrial waste or a substance resulting in pollution
remains in a water of the Commonwealth following the initial release of the waste
or substance. EQT, by contrast, argues that a violation only occurs under
Sections 301, 307, or 401 on the days that the industrial waste or substance
resulting in pollution is discharged or enters from an area outside of the waters of
the Commonwealth (e.g., a factory, industrial site, railcar, etc.) into a water of the
Commonwealth. Once the discharge or entry stops, no additional violations occur
even if the previously released regulated substance continues to be present in the
water. EQT essentially argues that the Department is reading language into these
provisions to support its position. EQT further argues that these sections must be
construed narrowly as penalty provisions. EQT also argues that prior cases from
this Court and prior adjudications by the Board support its interpretation. Finally,
EQT argues that the Department’s interpretations would nullify Pennsylvania’s
Act 2 program for remediation.
(continued…)
clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of
pursuing its spirit.” 1 Pa. C.S. § 1921(b). Only “[w]hen the words of the statute are not explicit”
may this Court resort to statutory construction. 1 Pa. C.S. § 1921(c). “A statute is ambiguous or
unclear if its language is subject to two or more reasonable interpretations.” Bethenergy Mines,
Inc. v. Dep’t of Envtl. Prot., 676 A.2d 711, 715 (Pa. Cmwlth.), appeal denied, 685 A.2d 547(Pa. 1996). Moreover, “[e]very statute shall be construed, if possible, to give effect to all its
provisions.” 1 Pa. C.S. § 1921(a). It is presumed “[t]hat the General Assembly intends the entire
statute to be effective and certain.” 1 Pa. C.S. § 1922(2). Thus, no provision of a statute shall be
“reduced to mere surplusage.” Walker, 842 A.2d at 400. Finally, it is presumed “[t]hat the
General Assembly does not intend a result that is absurd, impossible of execution or
unreasonable.” 1 Pa. C.S. § 1922(1).
7
In defense of its interpretation, the Department argues that under the
statutory language of Sections 301, 307, and 401 of The Clean Streams Law, a
violation occurs when industrial waste or a substance resulting in pollution flows
from one water of the Commonwealth into another. The Department argues,
alternatively, that if its interpretation is not supported by the clear language of the
statute, then it is supported by the rules of statutory construction. Namely, the
Department argues that these provisions are remedial, rather than punitive, and
further the legislative intent of The Clean Streams Law. The Department also
argues that the cases cited by EQT are distinguishable. The Department also avers
that its interpretation is reasonable and, therefore, should be afforded deference.
Finally, the Department argues that its interpretation is consistent with the Act 2
remediation scheme in that it only further incentivizes prompt cleanup after a
violation of The Clean Streams Law.
A. Statutory Framework
1. The Clean Streams Law
The General Assembly’s overarching intent in The Clean Streams
Law is to protect the waters of the Commonwealth from pollution. See Section 4
of The Clean Streams Law, 35 P.S. § 691.4. Section 1 of The Clean Streams Law,
35 P.S. § 691.1, defines “waters of the Commonwealth” as follows:
“Waters of the Commonwealth” shall be construed to
include any and all rivers, streams, creeks, rivulets,
impoundments, ditches, water courses, storm sewers,
lakes, dammed water, ponds, springs and all other bodies
or channels of conveyance of surface and underground
water, or parts thereof, whether natural or artificial,
within or on the boundaries of this Commonwealth.
In furtherance of the overarching goal, The Clean Streams Law is organized to
address particular types of pollution and potential pollution.
8
Article II of The Clean Streams Law regulates pollution resulting
from “sewage.”8 As the title of the section suggests,9 Section 201 of The Clean
Streams Law generally prohibits the discharge10 of sewage into the waters of the
Commonwealth and also prohibits the entering of sewage into waters of the
Commonwealth through other means:
No person or municipality shall place or permit to
be placed, or discharged or permit to flow, or continue to
discharge or permit to flow, into any of the waters of the
Commonwealth any sewage, except as hereinafter
provided in this act.
Discharges, however, are allowed if permitted under Section 202 of The Clean
Streams Law, 35 P.S. § 691.202. If not permitted, the discharge of sewage is
“declared to be a nuisance.” Section 202 of The Clean Streams Law.
In a similar fashion, Article III of The Clean Streams Law regulates
pollution resulting from “industrial waste.”11 Section 301 of The Clean Streams
8
“Sewage” is defined “to include any substance that contains any of the waste products
or excrements or other discharge from the bodies of human beings or animals.” Section 1 of The
Clean Streams Law.
9
We note that although not controlling, section headings “may be used to aid in the
construction thereof.” 1 Pa. C.S. § 1924.
10
The Department’s regulations define the term “discharge” as occurring where a
pollutant is added “to surface waters of this Commonwealth from a point source,” 25 Pa. Code.
§ 92a.2 (emphasis added).
11
“Industrial waste” is defined to include
any liquid, gaseous, radioactive, solid or other substance, not sewage, resulting
from any manufacturing or industry, or from any establishment, as herein defined,
and mine drainage, refuse, silt, coal mine solids, rock, debris, dirt and clay from
coal mines, coal colleries, breakers or other coal processing operations.
“Industrial waste” shall include all such substances whether or not generally
characterized as waste.
(Footnote continued on next page…)
9
Law, titled “Prohibition against discharge of industrial wastes,” prohibits the
discharge of industrial wastes into the waters of the Commonwealth and also
prohibits industrial waste entering the waterways of the Commonwealth through
means other than discharge. Specifically, Section 301 of The Clean Streams Law
provides:
No person or municipality shall place or permit to be
placed, or discharged or permit to flow, or continue to
discharge or permit to flow, into any of the waters of the
Commonwealth any industrial wastes, except as
hereinafter provided in this act.
(Emphasis added.) Like discharges of sewage, however, discharges of industrial
waste are allowed if permitted under the relevant provision of The Clean Streams
Law. Section 307(a) of The Clean Streams Law provides:
No person or municipality shall discharge or permit the
discharge of industrial wastes in any manner, directly or
indirectly, into any of the waters of the Commonwealth
unless such discharge is authorized by the rules and
regulations of the department or such person or
municipality has first obtained a permit from the
department.
Like unpermitted discharges of sewage, Section 307(c) of The Clean Streams Law
further provides that “[a] discharge of industrial waste without a permit or contrary
to the terms and conditions of a permit or contrary to the rules and regulations of
the department is hereby declared to be a nuisance.”
Article IV of The Clean Streams Law addresses “other” types of
pollution—i.e., pollution resulting from a discharge or entry of something other
(continued…)
Section 1 of The Clean Streams Law.
10
than sewage and industrial waste into the waters of the Commonwealth. Section
401 of The Clean Streams Law provides:
It shall be unlawful for any person or municipality to put
or place into any of the waters of the Commonwealth, or
allow or permit to be discharged from property owned or
occupied by such person or municipality into any of the
waters of the Commonwealth, any substance of any kind
or character resulting in pollution as herein defined.
Any such discharge is hereby declared to be a nuisance.
(Emphasis added.)12 Section 402 of The Clean Streams Law, 35 P.S. § 691.402,
extends to the Department the authority to regulate any activities “not otherwise
requiring a permit under this act”13 that have the potential to pollute the waters of
the Commonwealth by requiring that such activities only be conducted pursuant to
permits issued by the Department.
12
“Pollution” is defined as follows:
“Pollution” shall be construed to mean contamination of any waters of the
Commonwealth such as will create or is likely to create a nuisance or to render
such waters harmful, detrimental or injurious to public health, safety or welfare,
or to domestic, municipal, commercial, industrial, agricultural, recreational, or
other legitimate beneficial uses, or to livestock, wild animals, birds, fish or other
aquatic life, including but not limited to such contamination by alteration of the
physical, chemical or biological properties of such waters, or change in
temperature, taste, color or odor thereof, or the discharge of any liquid, gaseous,
radioactive, solid or other substances into such waters. The department shall
determine when a discharge constitutes pollution, as herein defined, and shall
establish standards whereby and wherefrom it can be ascertained and determined
whether any such discharge does or does not constitute pollution as herein
defined.
Section 1 of The Clean Streams Law.
13
This is an obvious reference to the discharge permit provisions for sewage and
industrial waste in Sections 202 and 307 of The Clean Streams Law.
11
Enforcement is set forth in Article VI. Section 601(a) of The Clean
Streams Law, 35 P.S. § 691.601(a), generally provides that “[a]ny activity or
condition declared by this act to be a nuisance or which is otherwise a violation of
this act, shall be abatable in the manner provided by law or equity for the
abatement of public nuisances.” (Emphasis added.) Actions seeking abatement of
nuisances can be brought in this Court’s original jurisdiction or in the court of
common pleas of the county “where the activity has taken place, the condition
exists, or the public is affected.” Id. In addition to seeking abatement in the courts
of the Commonwealth under Section 601 of The Clean Streams Law, Section 602
of The Clean Streams Law, 35 P.S. § 691.602, provides that persons or
municipalities that violate any provision of The Clean Streams Law may be subject
to criminal penalties. The Department also may assess civil penalties, after a
hearing, for violations “of a provision of this act, rule, regulation, order of the
department, or a condition of any permit issued pursuant to” The Clean Streams
Law. Section 605(a) of the Clean Streams Law, 35 P.S. § 691.605(a). The Clean
Streams Law provides for specific penalties for violations that are connected with
or related to mining14 and sets forth the manner and requirements for the
imposition of those civil penalties.15 Section 605(b) of The Clean Streams Law,
14
Section 1 of The Clean Streams Law, pertaining to definitions, provides that the term
“‘[m]ine’ shall be construed to mean any coal mine, clay mine or other facility from which
minerals are extracted from the earth including coal refuse disposal areas and coal collieries, coal
breakers and other coal processing operations.”
15
Section 605(b)(3) of The Clean Stream Law, which applies to civil penalties for
violations that are connected with or related to mining, provides:
If the violation involves the failure to correct, within the period prescribed for its
correction, a violation for which a cessation order, other abatement order or notice
of violation has been issued, a civil penalty of not less than seven hundred fifty
(Footnote continued on next page…)
12
35 P.S. § 691.605(b). That section, which again relates to only violations
connected with or related to mining, provides for the assessment of a civil penalty
for a violation that “continues beyond the period prescribed for its correction.”16
Additionally, Section 610 of The Clean Streams Law, 35 P.S.
§ 691.610, authorizes the Department to “issue such orders as are necessary to aid
in the enforcement of [The Clean Streams Law],” including, “but not limited to,
orders modifying, suspending or revoking permits and orders requiring persons or
municipalities to cease operations of an establishment which, in the course of its
operation, has a discharge which is in violation of any provision of this act.” The
Department’s order may “require compliance with such conditions as are necessary
to prevent or abate pollution or effect the purposes of [The Clean Streams Law].”
Section 610 of the Clean Streams Law (emphasis added).
Finally, Section 701 of The Clean Streams Law, 35 P.S. § 691.701,
makes clear that the collection of a penalty by the Department under Article VI
does not estop proceedings in courts of law or equity to abate pollutions forbidden
under the act or abate nuisances existing under law.
(continued…)
dollars ($750) shall be assessed for each day the violation continues beyond the
period prescribed for its correction: Provided, however, That correction of a
violation within the period prescribed for its correction shall not preclude
assessment of a penalty for the violation.
16
When a written complaint is made to the Department, it is the duty of the Department
“to investigate any alleged source of pollution of the waters of the Commonwealth, and to
institute appropriate proceedings under [The Clean Streams Law] to discontinue any such
pollution if the offense complained constitutes a violation of [The Clean Streams Law].” Section
604 of The Clean Streams Law, 35 P.S. § 691.604.
13
2. Act 2
Pennsylvania’s Land Recycling Program is comprised of three
companion acts, enacted simultaneously: Act 2; the Economic Development
Agency, Fiduciary and Lender Environmental Liability Protection Act (Act 3), Act
of May 19, 1995, P.L. 33, 35 P.S. §§ 6027.1-.14; and the Industrial Sites
Environmental Assessment Act (Act 4), Act of May 19, 1995, P.L. 43, as
amended, 35 P.S. §§ 6028.1-.5. Act 2 is the primary law under the Land Recycling
Program and seeks to encourage brownfields redevelopment through uniform
cleanup standards based on health and environmental risks, standardized review
procedures, and release from liability. Act 2 provides the remediation standards
for contamination under several state environmental statutes, including The Clean
Streams Law,17 and releases liability for further remediation once that standard is
achieved. The broad release of liability under Act 2 includes current and future
owners and precludes liability from lawsuits brought by citizens or contribution
actions brought by responsible persons.18 Section 501 of Act 2, 35 P.S.
§ 6026.501.
In 2004, the Department entered into an agreement with the
Environmental Protection Agency, which provides, in part, that a remediation that
complies with the Act 2 standards will satisfy the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. §§
17See Section 106 of Act 2, 35 P.S. § 6026.106.
18
Act 3 provides lenders that finance a recycled brownfield protection from clean-up
liabilities as long as their participation did not cause the contamination. Act 4 allocates funds for
grants to conduct assessments for brownfields.
14
9601-9675, and the federal government will refrain from commencing an action
under any related federal regulations.19 Thus, if a party achieves attainment of
Act 2 remediation, that party will not face any further liability for cleanup under
The Clean Streams Law or any of the related state or federal statutes.
B. Confinement of Our Analysis
The issue of statutory analysis presented here, as phrased by the
Department, is whether, under the above scheme, every time a person “allow[s]
his, her, or its industrial waste or pollutional substance to flow from one water of
the Commonwealth into another water of the Commonwealth,” the person is
committing a new and separate violation of Section 301, 307, and/or 401 of The
Clean Streams Law. (Dep’t’s Br. at 10.) If so, every such violation can be
assessed as a separate civil penalty under Section 605(a) of The Clean Streams
Law. The Department cites to the Pennsylvania Supreme Court’s decision in
Commonwealth v. Harmar Coal Co., 306 A.2d 308 (Pa. 1973), appeal dismissed,
415 U.S. 903 (1974), in support of its interpretation.
Based on the undisputed facts noted above, the dispute here revolves
around a release of impaired water and sludge from an industrial site—i.e., a
natural gas well pad wastewater impoundment. Under the Department’s
regulations, the wastewater impoundment, from which the industrial waste leaked,
19
Shari Shapiro, The Effectiveness of Pennsylvania’s Act 2: Are Good Mechanics
Enough?, 24 Temp. J. Sci. Tech. & Envtl. L. 441, 448 (2005). Attainment of Act 2 remediation
also satisfies the Resource Conservation and Recovery Act (RCRA), 42 U.S. C. §§ 6901-6992k,
and the Toxic Substances Control Act (TSCA), 15 U.S.C. §§ 2601-2697. DEP Fact Sheet:
Overview of the Land Recycling Program at 2.
15
meets the definition of a “point source.”20 Because the release emanated from an
industrial site, the waste at issue is considered industrial waste, regulated under
Article III of The Clean Streams Law, and not Article IV (relating to other forms
of pollutants). Our analysis, therefore, will focus on interpreting this article of The
Clean Streams Law.
As noted above, Sections 301 and 307 of The Clean Streams Law
work in tandem. The first provides a general rule prohibiting pollution through the
release of industrial waste, and the second provides for a process by which a
municipality or person can obtain a permit to “discharge” residual waste into the
waters of the Commonwealth. As discussed above, according to the Department’s
regulations, a “discharge” occurs where a pollutant is added “to surface waters of
this Commonwealth from a point source.” 25 Pa. Code. § 92a.2 (emphasis added).
Here, the industrial waste from the wastewater impoundment initially infiltrated
groundwater, not surface water. Accordingly, the pollution in question does not
meet the definition of a “discharge” and, therefore, is not regulated by Section 307
of The Clean Streams Law. Thus, our analysis shall be confined to proper
application of Section 301 of The Clean Streams Law for purposes of imposing
civil penalties.
20
A “point source” is defined as “[a] discernible, confined and discrete conveyance,
including, but not limited to, any pipe, ditch, channel, tunnel, conduit, well, discrete fissure,
container, rolling stock, [Concentrated Aquatic Animal Production Facility (CAAP)],
[Concentrated Animal Feeding Operation (CAFO)], landfill leachate collection system, or vessel
or other floating craft, from which pollutants are or may be discharged.” 25 Pa. Code § 92a.2.
16
C. Interpretation of Section 301 of The Clean Streams Law
As noted above, Section 301 of The Clean Streams Law prohibits not
only a discharge, “except as hereinafter provided in this act,” but also prohibits
placing industrial waste, permitting industrial waste to be placed, permitting
industrial waste to flow, or continuing to permit industrial waste to flow “into any
of the waters of the Commonwealth.” EQT claims that it stopped any such illegal
activity once it completely emptied the leaking impoundment of impaired water
and sludge. The Department claims that the illegal activity continues so long as
the leaked industrial waste exists in any water of the Commonwealth—i.e., until
the released industrial waste is entirely abated in accordance with the standards set
forth in Act 2.21 Until that time, violations and civil penalties will continue to
accrue.
With regard to Section 301 of The Clean Streams Law’s prohibitions,
as we noted above, the Department’s regulations expressly define the term
“discharge” as occurring where a pollutant is added “to surface waters of this
Commonwealth from a point source.” 25 Pa. Code. § 92a.2 (emphasis added).
Thus, it is clear that Section 301 prohibits the entry of industrial waste into the
surface waters of the Commonwealth through a point source. The General
Assembly, however, also prohibited a person from “plac[ing] or permit[ting] to be
placed, or . . . permit[ting] to flow, or continu[ing] to . . . permit to flow, into any
of the waters of the Commonwealth” industrial waste. 35 P.S. § 691.301. Through
21
Section 106(a) of Act 2, 35 P.S. § 6026.106(a), provides that whenever site
remediation is required under, inter alia, The Clean Streams Law, the Act 2 environmental
remediation standards apply. As noted above, EQT has fully remediated any soil contamination
and continues to remediate groundwater contamination.
17
the inclusion in Section 301 of the language “plac[ing] or permit[ting] to be placed,
or . . . permit[ting] to flow, or continu[ing] to . . . permit to flow, into any of the
waters of the Commonwealth,” it appears that the General Assembly intended to
expand Section 301’s prohibition not only to discharges of industrial waste into
surface waters, but also to instances where industrial waste enters into the
Commonwealth’s groundwater or surface waters through other means. See id.
This interpretation would cover situations where industrial waste escapes
containment and flows over land into surface waters or leaks into the soil and
enters the Commonwealth’s groundwater. Thus, Section 301’s prohibition applies
to situations such as here, where industrial waste leaked from a compromised
subgrade impoundment into the subsurface beneath the impoundment, making its
way to the groundwater. In fact, the parties do not disagree that Section 301
prohibits such pollution. The parties disagree, however, as to whether further
movement of the industrial waste and its mere presence in groundwater or other
bodies of water that make up the waters of the Commonwealth are also violations.
The Department essentially asks the Court to conclude that, following
an initial release of industrial waste into a water of the Commonwealth, the natural
flow of the waste from that water into another water of the Commonwealth or part
thereof constitutes a violation (e.g., the flow of industrial waste from part of a
stream to another part of that same stream or to a river would result in a continuing
violation), because a person or municipality, through the initial release of that
industrial waste, allowed or permitted the waste to flow or continue to flow from
one water of the Commonwealth to another. The Department’s interpretation
focuses partly on the definition of “waters of the Commonwealth,” which includes
“all rivers, streams, creeks, rivulets, impoundments, ditches, water courses, storm
18
sewers, lakes, dammed water, ponds, springs and all other bodies or channels of
conveyance of surface and underground water, or parts thereof.” 35 P.S. § 691.1
(emphasis added). The Department argues that the inclusion of the various “parts”
of waters of the Commonwealth indicates that the General Assembly intended to
prohibit the entrance of unpermitted industrial waste into each individual category
of water. The Department also stresses the dynamic, rather than static, nature of
the hydrogeologic regime that encompasses the “waters of the Commonwealth.”
(Dep’t’s Br. at 13-15).
Furthermore, the Department maintains that its interpretation is
consistent with Act 2, because the continuing violation creates incentive for
aggressive, prompt, thorough cleanup, whereas the consequence of EQT’s
interpretation would be the elimination of any legal obligation to clean up
contaminated waters, which would vitiate the declared legislative purpose to
restore to a clean, unpolluted condition every stream in Pennsylvania.
EQT, on the other hand, focuses on the portion of Section 301 of The
Clean Streams Law that prohibits a person or municipality from permitting
industrial waste to flow or continue to flow “into any of the waters of the
Commonwealth.” (Emphasis added.) EQT takes the position that industrial waste
enters “into” the waters of the Commonwealth when it first enters one of the types
of waters enumerated in the definition of “waters of the Commonwealth.” EQT
contends that after that initial entry, however, movement of the industrial waste
from one water to another water is not prohibited, because the various enumerated
waters all make up “the waters of the Commonwealth.” In other words, once the
industrial waste enters into one water of the Commonwealth, it has entered “the
waters of the Commonwealth,” such that Section 301’s prohibition does not
19
encompass the movement of the industrial waste after its initial entry. EQT notes
that the industrial waste is not entering “into” the water from an outside source
when it moves from one water to another.
The Department’s interpretation of Section 301 of The Clean Streams
Law as providing that a violation occurs when industrial waste flows from one
water of the Commonwealth into another and continues to constitute a violation
until remediation is completed is not supported by the statutory provisions and
framework or the rules of statutory construction. The Department’s interpretation
would result in potentially limitless continuing violations for a single unpermitted
release of industrial waste while any of the waste remained in any water of the
Commonwealth, or until Act 2 remediation is completed. Moreover, if a new
violation occurs as industrial waste moves from one water of the Commonwealth
to another water or part thereof, it would be impossible for the Department to
prosecute a case without the Commonwealth of Pennsylvania first delineating all
of the boundaries for each water and each part thereof. The General Assembly did
not intend for these sections to establish seemingly endless violations following but
a single release of industrial waste or other prohibited substances from a point
source or otherwise into a water of the Commonwealth.
Moreover, the Department’s interpretation ignores the fact that
violations require some culpable action or inaction by the polluter. After all, the
Department has the power to impose civil penalties for each violation under
Section 605(a) of The Clean Streams Law. Civil penalties are designed to punish
wrongful conduct, as the Department concedes in its brief. (Dep’t’s Br. at 25.)
Indeed, Section 605(a) of The Clean Streams Law requires the Department, in
seeking a civil penalty, to consider a number of factors, including the willfulness of
20
the violation. The Department’s interpretation focuses on the passive movement of
the industrial waste, not the actions of the party that released the waste.
Had the General Assembly intended that a violation of Section 301 of
The Clean Streams Law would result in a continuing violation until remediation is
achieved, the General Assembly would have clearly stated such. The absence of
such language is striking given the inclusion in Section 605(b) of The Clean
Streams Law of a continuing civil penalty for certain violations relating to mining
“for each day the violation continues beyond the period prescribed for its
correction.”22 (Emphasis added.)
To rule otherwise would be tantamount to punishing a polluter
indefinitely, or at least for as long as the initially-released industrial waste remains
in the waters of the Commonwealth, for the same violation—i.e., the initial
release.23 See 1 Pa. C.S. § 1928 (requiring courts to strictly construe penal
provisions in statute). Such a ruling would vastly expand potential liability in
Pennsylvania, even when a polluter is taking aggressive steps to remediate.
22
This provision also suggests that violations do not continue following an initial release
during a time period during which corrective action is being taken.
23
The Department’s interpretation is not entitled to deference. Generally speaking, the
courts “defer to the expertise of the agency upon which the General Assembly has vested
enforcement or interpretive responsibilities.” Packer v. Bureau of Prof’l & Occupational
Affairs, 99 A.3d 965, 969 (Pa. Cmwlth. 2014) (citing Section 1921(c)(8) of the Statutory
Construction Act, 1 Pa. C.S. § 1921(c)(8)), appeal denied, 109 A.3d 680 (Pa. 2015). Deference
is not given, however, to agency interpretations which are erroneous or which frustrate
legislative intent. Id. As explained above, the clear language of the statute and the rules of
statutory construction lead us to conclude that the Department’s interpretation is not consistent
with the legislature’s intent. Moreover, deference is not given when an agency interprets a
statute to justify its position in litigation. ARIPPA v. Pa. Pub. Util. Comm’n, 792 A.2d 636, 660
(Pa. Cmwlth. 2002).
21
The Department must confine its actions to the statutory framework of
The Clean Streams Law, recognizing that Section 301 of The Clean Streams Law
does not provide for a violation based upon the movement of industrial waste from
one water of the Commonwealth to another. Rather, a violation of Section 301
occurs when a person or municipality does what is prohibited—i.e., allows
industrial waste to enter into the waters of the Commonwealth—and once it ceases
that conduct, violations cease. Section 301’s prohibition is not a mandate to
accomplish full remediation or to complete the Act 2 remediation process, and,
therefore, the failure to remediate cannot equate to a violation of Section 301. This
does not mean that there are no consequences for leaving industrial waste in the
waters of the Commonwealth following a release, because an action at law or in
equity seeking abatement of nuisances can be brought for “[a]ny activity or
condition declared by this act to be a nuisance or which is otherwise a violation of
this act.” 35 P.S. § 691.601(a) (emphasis added). Additionally, the Department is
authorized to “issue such orders as are necessary to aid in the enforcement of [The
Clean Streams Law],” including, “but not limited to, orders modifying, suspending
or revoking permits and orders requiring persons or municipalities to cease
operations of an establishment which, in the course of its operation, has a discharge
which is in violation of any provision of this act.” 35 P.S. § 691.610. The
Department’s order may “require compliance with such conditions as are necessary
to prevent or abate pollution or effect the purposes of [The Clean Streams Law].”
Id.
The Pennsylvania Supreme Court’s decision in Harmar Coal
Company does not compel a different interpretation. Harmar Coal Company was a
consolidated appeal from two decisions issued by this Court, involving mine
22
drainage permits under a prior version of The Clean Streams Law. Relevant to this
appeal is the portion of the case dealing with Pittsburgh Coal Company’s (PCC)
request for a permit to discharge 3.44 million gallons per day of acid mine drainage
from one of its mines into a surface water of the Commonwealth. Some of the
polluted water (2.17 million of the 3.44 million gallons per day) in PCC’s mine
migrated from other mines, termed “fugitive water.” PCC proposed only to treat
that portion of the discharged polluted water that emanated from its mine, or 1.27
million gallons, contending that the fugitive water, once discharged pursuant to the
permit, could not constitute pollution because it was already polluted underground.
This Court accepted that argument. On appeal, the Supreme Court reversed. The
Supreme Court held:
Water polluted underground can itself pollute the surface
water into which it is discharged. Nothing in [T]he Clean
Streams Law justifies the [Commonwealth] Court’s
holding that pollution occurs [o]nly when polluting
substances are “first discharged into [a]ny ‘waters of the
Commonwealth’,” in this case the underground pool.
Appellant argues, and we agree, that the critical and
principal illegal conduct under The Clean Streams Law is
the discharge into the surface water.
Harmar Coal Co., 306 A.2d at 315.
Under Harmar Coal Company, then, the issue was whether a mine
operator was required to treat water already polluted by someone else before
discharging it itself under a prior version of The Clean Streams Law. The Supreme
Court answered affirmatively.
V. CONCLUSION
Based on the allegations in the Petition for Review, we will issue
declaratory relief only with respect to the proper interpretation of Section 301 of
The Clean Streams Law. For the reasons set forth above, we hold that Section 301
23
of The Clean Streams Law is a provision that prohibits acts or omissions resulting
in the initial active discharge or entry of industrial waste into waters of the
Commonwealth and is not a provision that authorizes the imposition of ongoing
penalties for the continuing presence of an industrial waste in a waterway of the
Commonwealth following its initial entry into the waterways of the
Commonwealth. EQT’s Application for Summary Relief, therefore, is granted in
this regard.
P. KEVIN BROBSON, Judge
Judge Wojcik did not participate in the decision of this case.
24
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
EQT Production Company, :
Petitioner :
:
v. : No. 485 M.D. 2014
:
Department of Environmental :
Protection of the Commonwealth :
of Pennsylvania, :
Respondent :
ORDER
AND NOW, this 11th day of January, 2017, the Application for
Summary Relief filed by Petitioner EQT Production Company is hereby
GRANTED in accordance with the accompanying opinion.
P. KEVIN BROBSON, Judge