EQT Production Co v. DEP, Aplt.

[J-86-2017]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
EQT PRODUCTION COMPANY, : No. 6 MAP 2017
:
: Appeal from the Order of the
Appellee : Commonwealth Court at 485 MD 2014,
: dated 1/11/17
:
v. :
:
DEPARTMENT OF ENVIRONMENTAL :
PROTECTION OF THE :
COMMONWEALTH OF PENNSYLVANIA, :
: ARGUED: November 28, 2017
Appellant :
OPINION
CHIEF JUSTICE SAYLOR DECIDED: March 28, 2018
In this direct appeal, we consider the scope of a civil penalty applicable to
violations of environmental protection statutes regulating the entry of contaminants into
any of the waters of the Commonwealth.
I. Background
Under the Clean Streams Law,1 the unpermitted release of industrial waste and
other contaminants into any of the waters of the Commonwealth is prohibited. Section
301 of the enactment provides:
1 Act of June 22, 1937, P.L. 1987 (as amended, 35 P.S. §§691.1 - 691.1001).
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.
35 P.S §691.301. Section 307 restates this prohibitory language in somewhat different
terms, forbidding persons and municipalities from “discharg[ing] or permit[ting] the
discharge” of industrial wastes “in any manner, directly or indirectly” into any of the
waters of the Commonwealth, absent authorization under DEP rules and regulations or
without a permit. See id. §691.307. Section 401 -- which begins with an introductory
title “[p]rohibition against other pollutions” -- makes it unlawful for persons or
municipalities to “put or place” 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.” Id.
§691.401.
In the Clean Streams Law, the term “Waters of the Commonwealth” is defined
very broadly to encompass “any and all” of an extensive series of waters, including
rivers; streams, creeks, springs and rivulets; lakes and ponds; water courses; and
ditches, as well as “all other bodies or channels or conveyance of surface and
underground water, or parts thereof, whether natural or artificial.” Id. §691.1. Per
Section 605, violators are subject to civil penalties of up to $10,000 per day for each
violation. See id. §691.605(a).
The present litigation is a declaratory judgment proceeding initiated by Appellee
EQT Production Company (“EQT”), which became exposed to the civil penalties under
the Clean Streams Law in 2012 on account of leaks from an impoundment used to
[J-86-2017] - 2
contain impaired water flowing back from hydraulic fracture gas wells.2 According to the
complaint, much of the penalty exposure asserted by the regulatory agency, the
Department of Environmental Protection (“DEP” or the “Department”), which is the
appellant herein, was premised on a “continuing violation” theory predicated on passive
migration of contaminants from soil into water. EQT asserted:
DEP’s articulated legal position to support this proposed
penalty is that every day that contaminants from the
[impoundment] remain in the subsurface soil and passively
enter groundwater and/or surface water constitutes a
“continuing violation” of sections 301, 307 and 401 of the
Clean Streams Law, for which a separate civil penalty may
be assessed for each day of alleged violation.
Complaint in EQT Prod. Co. v. DEP, No. 485 M.D. 2014 (Pa. Cmwlth.), at ¶21
(emphasis in original). The company expressed the concern that DEP’s soil-to-water
theory “means that civil penalties may be asserted against [EQT] as long as any
contaminant remains in the environment,” creating significant uncertainty and potentially
unending civil liability. Id. at ¶35 (emphasis in original). EQT contended that such
position was contrary to the plain wording of the governing statutes, was not supported
2 Some of the factual circumstances surrounding the leaks and their aftermath are
disputed in a number of respects, but they are immaterial to our present review of
issues of governing law. Subject to clarifications provided below, more specific
information can be gleaned from EQT Production Co. v. DEP, 634 Pa. 611, 130 A.3d
752 (2015), as well as in the Commonwealth Court’s decision underlying this appeal.
See EQT Prod. Co. v. DEP, 153 A.3d 424 (Pa. Cmwlth. 2017). There is no dispute,
however, that contaminated water generated in unconventional gas well operations
constitutes “industrial waste” for purposes of Section 301. See 35 P.S. §691.1
(prescribing a broad definition for this term to include a broad range of substances
resulting from manufacturing or industrial activity).
[J-86-2017] - 3
by any judicial precedent, and defeated the legislative intent of Act 2 of 1995,3 a
separate enactment centered on environmental remediation.
In terms of an affirmative statement of its own interpretation of the statutory
overlay, EQT indicated:
Sections 301, 307 and 401, in conjunction with section 605
of the Clean Streams Law, 35 P.S. §691.605 (establishing
civil penalty amounts for violations) grant DEP authority to
assess a civil penalty only for the days that pollutants were
actually discharged from the [impoundment], not for any
days that previously released constituents passively migrate
through the environment into groundwater or surface water.
Complaint in EQT Prod. Co., No. 485 M.D. 2014, at ¶32 (emphasis in original).
Shortly after the filing of the complaint, the Department lodged a civil penalty
complaint against EQT in the Environmental Hearing Board (the “EHB” or the “Board”),
seeking imposition of a sanction of at least $4,532,296. Relevant to the progress of the
declaratory judgment litigation as discussed below, various paragraphs of the complaint
asserted that penalties continued to accrue for each day that a contaminant deriving
from the impoundment “continues to be present in any waters of the Commonwealth.”
Complaint in In re EQT Prod. Co., No. 2014-140-CP-L (EHB), at ¶¶60, 89.
In its answer and new matter addressing EQT’s complaint for declaratory relief,4
the Department observed that the relevant provisions of the Clean Streams Law do not
employ the phrase “actual discharge” and highlighted EQT’s failure to provide a
definition for the term that it employed. See Answer and New Matter in EQT Prod. Co.,
3 See Act of May 19, 1995, P.L. 4, No. 2 (as amended, 35 P.S. §§6026.101 - 6026.908).
4The Commonwealth Court initially dismissed the declaratory judgment action on the
Department’s preliminary objections. This Court reversed that decision, however, see
EQT Prod. Co., 634 Pa. 611, 130 A.3d 752, and the agency proceeded to file an answer
and new matter.
[J-86-2017] - 4
No. 485 M.D. 2014, at ¶¶43, 44 (“The Department does not know what [EQT] views to
be an ‘actual discharge.’”). The agency also criticized any suggestion that penalty
liability cannot be based upon “passive migration.” Id. at ¶45. Furthermore, the
Department charged that EQT had unfairly characterized the agency’s liability theories
and posited that the company’s asserted omissions “compel the Department to
articulate its legal position in full detail.” Id. at ¶21.
DEP then described EQT’s penalty exposure as follows. The agency explained
that evidence would demonstrate that: industrial waste from the company’s
impoundment remained in bedrock and soil beneath the impoundment’s liner for a
period of time longer than EQT contemplated in its portrayal of an “actual discharge”;
industrial waste can bind to the soil or perch above an aquifer, “continually polluting new
groundwater as groundwater flows through the column of bound or perched industrial
waste”; EQT’s “plume of pollution . . . progressively and over time moved into regions of
uncontaminated areas of surface and groundwater”; and this would continue for months
or years. Id. ¶¶56-59. In these passages, DEP appears to have been advancing its
soil-to-water migration theory, the continuing-violation theory such as was the subject of
the complaint. The passages can also be read more broadly, however, to suggest new
infractions as contaminants spread from discrete bodies of water into new regions of
water, a water-to-water theory of serial violations upon which the Department would
come to focus upon more specifically. Even more broadly, the Department charged that
EQT was subject to civil penalties for “[e]ach day that [the company’s] impact upon a
water of the Commonwealth constitutes ‘pollution’” and on each day that the industrial
waste that was to be contained in the impoundment impairs waters of the
Commonwealth. Id. at ¶¶71-72.
[J-86-2017] - 5
EQT proceeded to file an application for summary relief premised on discounting
only the last and broadest formulation by DEP. See Pa.R.A.P. 1532(b). According to
the company, DEP’s pleadings and discovery responses conveyed its intention to seek
civil penalties for every day that any contaminants deriving from the company’s
impoundment “remain in the environment.” Application for Summary Relief in EQT
Prod. Co., No. 485 M.D. 2014, at ¶13. EQT criticized such an interpretation, indicating
that the relevant substantive provisions of the Clean Streams Law turn upon entry of a
contaminant “into a water of the Commonwealth.” Id. at ¶14 (emphasis in original). It
was the company’s position at this stage that:
Under the express text of the [Clean Streams Law], there is
no violation for days on which an industrial waste or a
substance resulting in pollution, after having previously been
discharged into a water of the Commonwealth, continues to
be present in that water.
Application for Summary Relief in EQT Prod. Co., No. 485 M.D. 2014, at ¶15 (emphasis
in original). Ultimately, EQT asked only for two facially straightforward pronouncements
of declaratory relief. First, the company requested a declaration that a violation of the
relevant substantive provisions of the Clean Streams Law occur only on a day in which
a person “allows an industrial waste or a substance resulting in pollution to actually
enter into waters of the Commonwealth.” Id. at ¶18(a). Second, EQT asked the court
to confirm that the mere presence of an industrial waste or a substance resulting in
pollution of the waters of the Commonwealth does not, in and of itself, constitute a
violation. See id. ¶18(b).
It is worth pausing at this juncture to consider that there is no material dispute
that the second of these propositions is true. While DEP has repeatedly declined to
squarely confirm that it will not seek penalties for the mere presence of contaminants in
waters of the Commonwealth, every theory of a continuing violation or serial violations
[J-86-2017] - 6
that the agency has ever attempted to defend on developed reasoning contemplates
movement of contaminants into or within water. See, e.g., Brief for Appellant at 18
(couching liability under Sections 301, 307 and 401 in terms of an initial discharge or
“the unpermitted continuing or indirect flow” of contaminants (emphasis added)); accord
Brief of Amicus Clean Air Council at 21 (recognizing that “[t]he ‘presence’ of water
pollutants . . . is not a legal standard for liability under Section 301.”); Brief for Amici
Citizens for Pennsylvania’s Future and Sierra Club at 8 n.8 (“Amici Curiae do not read
[sic] the Department as having taken the position below that the continued presence of
the industrial waste in a particular water of the Commonwealth, by itself, is an ongoing
violation of Section 301[.]” (emphasis in original)). Indeed, all of the statutes under
review plainly contemplate such movement as a predicate for violations. 35 P.S.
§§691.301 (prohibiting various forms of releases of industrial waste “into any of the
waters of the Commonwealth” (emphasis added), 691.307 (same), 691.401 (same for
substances resulting in pollution).5
As to the other proposition advanced in the summary-relief application -- i.e., that
an infraction occurs only on days when a violator allows a contaminant to actually enter
into waters of the Commonwealth -- the parties’ submissions also suggest a substantial
overlap in the common understanding. The consensus is, again, in the degree to which
5 Amicus Clean Air Council acknowledges that flow, and not mere presence, is the
relevant litmus, but asks that we make clear that the presence of pollutants in a water
may constitute evidence of a prohibited flow. See Brief for Amicus Clean Air Council at
19-26. It is a matter of common sense that the presence of a contaminant in water that
is traceable to a particular source is circumstantial proof that the substance moved from
the source into the water, and the same holds true as the substance might migrate
through various waters. This, of course, does not answer the question whether serial
civil penalties under the Clean Streams Law accrue based on continued migration of
contaminants through waters, which is the matter upon which the declaratory judgment
proceedings have come to focus.
[J-86-2017] - 7
movement into water is essential to a violation. The differences are, first, whereas EQT
phrased the act or omission giving rise to liability as “allow[ing] a contaminant to actually
enter into waters of the Commonwealth,” DEP supplements the phrase to encompass a
variety of other terms such as discharges, continued discharges, indirect discharges,
permits to flow, and continuing to permit to flow. See, e.g., Brief for Appellant at 22, 24-
25. Second, DEP has stressed that the governing statutes contemplate movement not
just “into waters,” but into “any of the waters” of the Commonwealth. Id. at 24
(emphasis adjusted).
The substance of the application for summary relief, however, cannot fairly be
understood to discount DEP’s broader view in these regards, or, more specifically,
either of its soil-to-water or water-to-water migration theories, both of which require
movement into a water (or a part thereof). For example, there was no developed
suggestion, in EQT’s application or its initial supporting brief, concerning any distinction
between active and passive conduct, or on a constrained definition of the concept of
“allowing” movement into water. Moreover, EQT asserted that there could be no
violation, once a contaminant has moved into a water, for mere presence in “that water,”
Application for Summary Relief in EQT Prod. Co., No. 485 M.D. 2014, at ¶15 (emphasis
added), thus avoiding any tension with the water-to-water theory. Furthermore, EQT did
not carry over, from its complaint and into the application for summary relief, the notion
of an “actual discharge” from the impoundment.
For these reasons, and otherwise, the application can be reasonably read only
as an effort to confirm that the mere presence of contaminants in the environment does
not, in and of itself, establish a violation, and that movement into water is a touchstone.
Indeed, had the Department merely acceded to summary relief on the precise terms
[J-86-2017] - 8
advanced by EQT, it would have been untenable for the company to claim that the court
had confirmed anything other than these modest propositions.6
The Department opposed summary relief. In its response, the agency observed
-- consistent with the above summary of the EQT’s application for summary relief
relative to the soil-to-water and water-to-water theories -- that the application failed to
challenge any portion of the agency’s legal theories. See Answer to Application for
Summary Relief in EQT Prod. Co., No. 485 M.D. 2014, at 6. Notably, in neither the
pleadings nor its response to the application for summary relief did the Department
include a request for a declaratory judgment in its favor on the theories that it had
interjected into the summary relief proceedings. Rather, the Department merely asked
that relief on the complaint and application should be denied. See Answer and New
Matter in EQT Prod. Co., No. 485 M.D. 2014, at 26; Answer to Application for Summary
Relief in EQT Prod. Co., No. 485 M.D. 2014, at 12. Nevertheless, in a supporting brief,
DEP proceeded to reframe, and to greatly broaden, the questions before the court on
6 This is not to say that the Department could not have been justifiably concerned that a
verbatim judicial pronouncement on the specific terms proposed by EQT in this highly
technical area of the law could potentially be misused. Our only objective, at this point,
is to clarify that the scope of the summary-relief application itself was quite limited.
Along these lines, for example, EQT chose not to develop any rationale in pursuit of its
original request, as stated in its complaint, for declaratory relief to discount the soil-to-
water theory of continuing violation. Nor did the company present any rationale
challenging any other theory of liability beyond one based on the mere presence of a
contaminant in a protected water.
Consistent with the application for summary relief, EQT’s initial supporting brief set out
to vindicate its position on the twin pillars of the request for declaratory relief set forth in
its application for summary relief, namely, that actual entry into waters of a contaminant
the Commonwealth is essential to a violation; and the mere presence of a contaminant
in waters of the Commonwealth does not, in and of itself, constitute a violation. See
Brief in Support of Application for Summary Relief in in EQT Prod. Co., No. 485 M.D.
2014, at 11-13 (presenting a summary of the argument).
[J-86-2017] - 9
summary review to advance its soil-to-water theory of a continuing violation, as well as
the water-to-water theory of serial violations. See, e.g., Brief in Opposition to
Application for Summary Relief in EQT Prod. Co., No. 485 M.D. 2014, at 1-2 (presenting
a counter-statement of the questions presented).
In a reply brief, EQT for the first time contested the water-to-water theory,
characterizing it as a novel, “revised continuing violation theory.” Reply Brief in Support
of Application for Summary Relief in EQT Prod. Co., No. 485 M.D. 2014, at 1.7 In this
submission, EQT still did not specifically discuss the soil-to-water theory that was the
subject of its original complaint, but which the company did not itself carry forward into
the summary relief proceedings.
Upon its review, the Commonwealth Court accepted the Department’s reframing
of the issues, at least in part, centering its decision on the water-to-water theory. See
EQT Prod. Co., 153 A.3d at 433 (“The issue of statutory analysis presented here, as
phrased by the Department, is whether . . . 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[.]”). Notably, and presumably in light of the parties’ ultimate focus on that
theory, the court also afforded no specific attention to the soil-to-water theory.
In its analysis, preliminarily, the Commonwealth Court proceeded sua sponte to
narrow its statutory analysis of violations to Section 301.8 In this regard, in terms of
7 The allusion to a “continuing violation theory” is imprecise, given that the water-to-
water theory is one of both serial and continuing violations. In this regard, under the
Department’s understanding, a new violation occurs each time a contaminant enters a
previously unaffected part of a water and each serial violation continues, relative to
each affected part, as long as contaminants continue to enter.
8 It is important to bear in mind that all of EQT’s submissions to the court assumed, or at
least allowed, that all of Sections 301, 307 and 401 could be applicable as bases for
(continued…)
[J-86-2017] - 10
Section 307, the court reasoned that the leaks from EQT’s impoundment did not qualify
as a “discharge,” which is the specified concern of Section 307. In support of this
conclusion, the court borrowed a definition of “discharge” from DEP regulations
implementing programing under the National Pollutant Discharge Elimination System
(“NPDES”), see 33 U.S.C. §1342. This regulatory definition of “discharge” -- for
purposes of the NPDES program -- concerns “[a]n addition of any pollutant to surface
waters of this Commonwealth from a point source.” 25 Pa. Code §92a.2 (emphasis
added). Based on this definition, and because the industrial waste from EQT’s
impoundment initially infiltrated groundwater, and not surface water, the Commonwealth
Court found that no discharge had occurred. See EQT Prod. Co., 153 A.3d at 433-34.
Again, the court’s analysis was entirely of its own accord, as no party had suggested
either that Section 307 did not apply, or that the NPDES-related definition of discharge
was in any way relevant.
As to Section 401, the court posited -- based on the introductory title and without
considering that the operative terms of the statute can be read more broadly than the
title suggests -- that the provision concerned only forms of pollution other than industrial
waste. See id. at 433 (“Because the release [from EQT’s impoundment] 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).” (emphasis added)).
Focusing, then, on Section 301, the Commonwealth Court highlighted the
statute’s proscription against “‘plac[ing] or permit[ting] to be placed, or . . . permit[ting] to
flow, or continu[ing] to . . . permit to flow, into any waters of the Commonwealth’
(…continued)
violations on the company’s part, and the Department has consistently taken the
position that EQT violated each and all of these provisions.
[J-86-2017] - 11
industrial waste.” Id. at 434 (quoting 35 P.S. §691.301) (interlineations in original). By
virtue of this language, the court reasoned that the General Assembly intended to
expand the statute’s coverage not only to discharges (as the court had narrowly defined
the term), but also to instances in which 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.”). Accordingly, the court concluded that Section 301’s
proscription applied to the leak from EQT’s impoundment, based on the migration of
contaminants through soil into groundwater. See id.9
The Commonwealth Court, however, proceeded to reject the Department’s
water-to-water theory of serial violations. Initially, the court expressed its concern that
DEP’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.” Id. at 435 (emphasis in
original). According to the court, 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.” Id. at 435-36.
9 To a degree, these passages of the Commonwealth Court’s reasoning can be viewed
as an implicit vindication of DEP’s soil-to-water theory. They do not specifically
address, however, a key aspect of the soil-to-water theory, namely, the Department’s
assertion that a violation continues even after a leak or other release has been
redressed from the initial point of release, as long as contaminants continue to migrate
into water.
[J-86-2017] - 12
Moreover, the Commonwealth Court opined that violations of the Clean Streams
Law require some culpable action or inaction by violators. Thus, it was the court’s
position that passive movement of industrial waste cannot establish infractions. See id.
at 436. Instead, the court indicated that violations are confined according to a concept
of an “initial active discharge or entry of industrial waste into waters of the
Commonwealth.” Id. at 437.10 For this reason, the court found that authorization was
lacking for “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.” Id.
In this regard, the Commonwealth Court opined that Section 301 simply was not
concerned with the progress of remediation efforts after the cessation of what the court
termed an “initial active discharge or entry of industrial waste” into waters. See id. at
436 (“Had the General Assembly intended that a violation of Section 301 . . . would
result in a continuing violation until remediation is achieved, [it] would have clearly
stated as such.”). Relative to remediation, the court also highlighted DEP’s powers,
under the Clean Streams Law, to commence an action at law or in equity seeking
abatement of nuisances in the form of contamination. See id. at 436-37 (citing 35 P.S.
§691.601(a)). The court additionally alluded to the agency’s authority to issue such
orders as may be necessary to aid in the enforcement of the Clean Streams Law. See
id. at 437 (citing 35 P.S. §691.610).
10 It is not clear whether, by its use of the disjunctive, the Commonwealth Court meant
to define “initial active discharge” in terms of entry into waters, or whether it viewed
“discharge” and “entry” as separate triggers for violations. In either event, the litmus
would not seem to discount the Department’s soil-to-water theory, upon which the court
was not focused in any event, since entry into waters is a determinative event under
either understanding.
[J-86-2017] - 13
In further support of its construction of Section 301, the Commonwealth noted
that penal statutes are to be strictly construed. Id. at 436 (citing 1 Pa.C.S. §1928).
Additionally, the court rejected the Department’s position that it was entitled to
deference as the administrative agency charged with interpretation and enforcement of
the Clean Streams Law. Id. at 436 n.23. See generally Seeton v. Pa. Game Comm’n,
594 Pa. 563, 578, 937 A.2d 1028, 1037 (2007) (discussing deference to agencies’
interpretations relative to ambiguous statutes). In this respect, the court deemed the
language of Section 301 to be sufficiently plain to override DEP’s approach.
Furthermore, the court considered the water-to-water theory to reflect a position
developed in litigation, as to which deference should be constrained. See generally
Huntley & Huntley, Inc. v. Borough Council of Borough of Oakmont, 600 Pa. 207, 228,
964 A.2d 855, 867-68 (2009).
After the issuance of the Commonwealth Court’s decision, the EHB rendered an
adjudication imposing a civil penalty upon EQT of $1,137,296. See DEP v. EQT Prod.
Co., No. 2014-140-CP-L, 2017 WL 2399756 (EHB May 26, 2017). The Board offered
an extensive recitation of the facts relevant to the number and duration of the violations
and the amount of penalties, finding EQT’s conduct and omissions to have been
reckless both in terms of the leaks and the timeliness and scope of the company’s
remediation response. See, e.g., id. at *21, 48. In terms of the amount of the penalties
sought by the Department at that juncture, the EHB alluded to a “proposed assessment
through 9/25/2014 of $81,760,000.” See id. at *26.
Material to the present dispute, the EHB differed with various lines of the
Commonwealth Court’s analysis. See id. at *25. In particular, the Board posited that
Sections 307 and 401 both pertained to EQT’s violations. As to Section 307, the EHB
criticized the Commonwealth Court’s resort to a limited-purpose definition of
[J-86-2017] - 14
“discharge.” See id. (explaining that the definition relied upon by the Commonwealth
Court “only applies to the Department’s implementation of the federal NPDES program,
which is not implicated here.”). It was the Board’s position that the leaks from EQT’s
impoundment plainly gave rise to a discharge as contemplated by Section 307 and
otherwise within the Clean Streams Law. Indeed, the EHB observed that EQT’s
submissions had accepted that characterization. See id. The Board also expressed the
view that, by prohibiting the unpermitted discharge of substances resulting in pollution,
Section 401 proscribes unauthorized industrial-waste discharges. See id. at *30. On a
broader plane, the EHB explained that, per its previous decisions, “a person may be
guilty of violating multiple statutory provisions with one act, but separate penalties may
not be imposed for the overlapping offenses unless one offense requires proof of a fact
not required by the others.” Id.; accord Brief for Appellant at 26 (positing, with reference
to Sections 301, 307 and 401, that “[t]hese three sections . . . function together as
comprehensive safeguards for the waters of the Commonwealth, in pursuit of the
purposes of the statute: protection and restoration of those water resources”).
With respect to Section 301, the EHB found the Commonwealth Court’s
reasoning and holding to be unclear, particularly in terms of its discussion of “active”
releases.11 Additionally, the Board expressed substantial reservations to the degree to
which the Commonwealth Court rested its focus on a contaminant “leav[ing] one place,”
since the main concern of the Clean Streams Law is entry into “another place,” i.e., any
of the waters of the Commonwealth. Id. at *27-28 (“It is not clear to us why it should
matter legally whether the industrial waste escaped containment so long as the waste
enters waters of the Commonwealth from outside waters of the Commonwealth.”). In
11The EHB utilized the broad term “release” effectively to encompass all of the methods
by which a contaminant may “leave one place” and “enter into another.” Id. at *27.
[J-86-2017] - 15
this regard, the EHB appeared to express its own approval of the Department’s soil-to-
water theory. See, e.g., id. at *27 (explaining that some of the contaminants released
from EQT’s impoundment “did not travel directly into waters, but instead got bound up in
soils and materials outside the pit but above groundwater in the unsaturated zone, only
to be released into groundwater for the first time at a later date” and opining that “[s]uch
discharges may be thought of as indirect discharges”).
Nevertheless, “for reasons other than liability,” the EHB decided to confine its
penalty determination to exclude “periods when EQT’s only new releases were strictly
from the soils outside of the [impoundment].” Id. at *28. The Board did not specifically
focus on the water-to-water theory at large, albeit that it plainly differed with several of
the Commonwealth Court’s reasons for rejecting it as well as the court’s ultimate test for
liability. Various passages of the opinion, however, can be read as a rejection. See,
e.g., id. (“It is not clear to us why it should matter legally whether the industrial waste
escaped containment so long as the waste enters waters of the Commonwealth from
outside waters of the Commonwealth.” (emphasis added)).12
II. Analysis
The matters of statutory construction before us concern questions of law, over
which our review is plenary. See, e.g., Six L's Packing Co. v. W.C.A.B. (Williamson),
615 Pa. 615, 629, 44 A.3d 1148, 1157 (2012).
12A dissenting opinion expressed concern that the adjudication did not consistently
adhere to the Commonwealth Court’s decision in the declaratory judgment proceedings.
See EQT Prod. Co., 2017 WL 2399756, at *52-56 (Beckman, J.).
[J-86-2017] - 16
A. The Sua Sponte Aspects of the Commonwealth Court’s decision
We begin by expressing substantial reservations about the Commonwealth
Court’s decision that Sections 307 and 401 were inapplicable to EQT’s penalty
exposure. For the same reasons discussed by the EHB, the Department vigorously
argues that various provisions of the Clean Streams Law overlap, and that multiple
violations may be committed through a single act or omission. See Brief for Appellant at
27-33.
It should be clear from the above that issues of environmental law can involve
highly technical considerations and are best addressed by the courts on developed
arguments by the litigants. As previously related, the Department and the EHB have
expressed the colorable position that Sections 307 and 401 are relevant to acts or
omissions by EQT in connection with the leaks from its impoundment, and they have
offered potentially viable reasons why the Commonwealth Court’s analysis of these
statutes is incorrect. EQT never set out to discount the relevance of these statutes, nor
does the company, in its present briefing before this Court, undertake to defend the
Commonwealth Court’s treatment.
Our concern with the sua sponte decision-making in this regard dovetails with the
broader one that the declaratory judgment proceedings have strayed far afield from the
pleadings and summary relief application and, in a number of respects, the attendant
arguments as well. EQT was permitted to pursue a pre-enforcement challenge in the
courts that came to interrelate with an anticipated proceeding before the EHB, on the
ground that the company had been threatened by a Commonwealth agency with
ballooning, multi-million dollar penalties based on a controverted theory that, in its
broadest application, would expose the company to ongoing penalty liability as long as
any contaminant deriving from its impoundment remained present in the environment.
[J-86-2017] - 17
See EQT Prod. Co., 634 Pa. at 622, 130 A.3d at 759. The interrelationship with the
EHB proceedings has obviously been a sensitive concern throughout. See, e.g., id. at
at 621-22, 130 A.3d at 759; id. at 622-28, 130 A.3d at 759-63 (Baer, J., dissenting)
(expressing the position that judicial declaratory-judgment review should have been
denied, and that the availability of any remedy to EQT should have been determined in
the administrative civil penalty proceedings in the first instance, subject only to
subsequent judicial appellate review).
Particularly in these circumstances, in our considered judgment, the declaratory
judgment proceedings should have been confined more closely according to the
pleadings and application for summary relief, prudentially, and arguably at least, as a
matter of governing law. See Christian v. Johnstown Police Pension Fund Ass'n, 421
Pa. 246, 218 A.2d 746, 749 (1966) (“Authorities need not be multiplied in support of the
rule that the relief afforded by [an equitable] decree[, such as a declaratory judgment,]
must conform to the case as made out by the pleadings, and the decree must be
consistent with the relief prayed for.” (quoting Snyder v. Barber, 378 Pa. 377, 382-83,
106 A.2d 410, 412 (1954)) (emphasis in original).13
13It is not presently beyond reasonable dispute whether or not the doctrine set forth in
the Christian decision continues to apply. Notably, the opinion preceded the
promulgation of the Declaratory Judgment Act, 42 Pa.C.S. §§7531-7541, and the
merger of the law and equity jurisprudence in the courts, see Pa.R.C.P. Nos. 1001(b),
1501 (note to rescinded rule), and therefore, a fresh consideration may be in order.
Moreover, where a pleading encompasses a general prayer for relief -- asking, for
example, for such other relief as the court may deem necessary and proper -- some
modest elaboration from the pleading is permissible under Christian. See Christian, 421
Pa. at 246, 218 A.2d at 749-50. In this regard, EQT’s complaint contained such a
prayer, see Complaint in EQT Prod. Co., No. 485 M.D. 2014 (Pa. Cmwlth.), at 11.
However, the operative application on which the Commonwealth Court’s decision was
predicated, i.e., EQT’s application for summary relief, did not contain any such request.
See Application for Summary Relief in EQT Prod. Co., No. 485 M.D. 2014 (Pa.
(continued…)
[J-86-2017] - 18
Accordingly, we deem it best, at this juncture, to simply vacate those portions of
the Commonwealth Court’s decision that exceeded the pleadings, the application for
summary relief, and the arguments presented to the court, and which are matters on
which we also have an incomplete adversarial presentation. Specifically, the
Commonwealth Court’s entire treatment of Sections 307 and 401 of the Clean Streams
Law will be vacated, and we express no opinion as to the validity of its determinations in
these regards. We observe only that, if and when those matters are revisited, the
colorable positions expressed by the Board and the Department should be
considered.14
(…continued)
Cmwlth.), at ¶18. Moreover, the deviations from the pleadings and application cannot
be considered to have been modest.
Because of the complexities, and in the absence of argumentation on the point, we do
not presently consider whether the doctrine expressed in Christian continues to apply.
Rather, we rest our approach to the matters beyond the scope of the pleadings and
application on prudential grounds, as discussed above.
14 The Department also complains that the Commonwealth Court made factual
assertions that are inconsistent with the denials in the agency’s responsive pleadings,
which are inappropriate to the summary-relief stage. See Brief for Appellant at 9-11. In
its responsive brief, EQT offers no suggestion that there was not a factual dispute
concerning these matters, nor does it make any effort to defend the resolution of
disputed facts as appropriate to the summary-relief context.
All of the relevant denials pertain to the timing and efficacy of EQT’s remedial efforts,
matters which are not material to our present legal review. Nevertheless, since the
Commonwealth Court should not have credited one party’s statement of disputed facts,
its decision will be vacated as it concerns those matters as well.
[J-86-2017] - 19
B. The Water-to-Water Theory
We proceed to the main focus of the Commonwealth Court’s opinion -- the
Department’s water-to-water theory. Subject to reservations about addressing a matter
at the summary relief stage that was not pursued by the proponent in the pleadings or
the dispositive application, and based on a balancing of considerations, we will address
this issue on the merits. In this regard, we observe that the Commonwealth Court
ultimately was presented with robust adversarial presentations concerning this theory,
as are we. The issue is also one of considerable public importance and has attracted
the participation of a variety of amici, including, in support of EQT’s position, the
Chamber of Commerce of the United States of America, the Pennsylvania Chamber of
Business and Industry, and the Greater Pittsburgh Chamber of Commerce -- and, for
DEP, Clean Air Council, Chesapeake Bay Foundation, Inc., Citizens for Pennsylvania’s
Future, Sierra Club, the Pennsylvania Fish and Boat Commission, as well as a group of
elected officials, organizations, and businesses with an interest in ensuring the clean
water supply in Pennsylvania.
In the present briefing, DEP maintains its overarching position 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 (or a given part thereof) into another water (or part
thereof) gives rise to serial violations. See, e.g., Brief for Appellant at 18 (offering an
example of flow of industrial waste from groundwater into a stream as a distinct
violation). In this respect, the Department draws support from the statutory definition of
“waters of the Commonwealth,” which subsumes discrete waters and “parts thereof.”
35 P.S. §691.1. According to the agency, it is entirely natural to speak of pollution
[J-86-2017] - 20
flowing from one body of water into another. Along these lines, DEP notes that a
citation to a Webster’s Dictionary definition of the word “into” proffered by EQT itself
provides the following example of usage: “one stream falls or runs into another.” Reply
Brief for Appellant at 5 (quoting Brief for Appellee at 14 (citation omitted)) (emphasis in
original).
The Department finds no material distinction between releases from an
impoundment and the asserted “passive migration” of contaminants thereafter. The
agency posits that the latter concept is specifically addressed by the Clean Streams
Law’s reference to “continuing to permit industrial waste to flow into waters of the
Commonwealth.” Brief for Appellant at 21. Further, DEP argues that the enactment
anticipates, and prohibits, contamination by non-active means via its use of a series of
passive verbs. See, e.g., Brief for Appellant at 22 n.12 (“Passive language runs
throughout The Clean Streams Law. Section 303, for example, refers to ‘discharging’
industrial waste or ‘permitting [it] to be discharged.” (quoting 35 P.S. §691.303)
(emphasis in original)). The agency criticizes the Commonwealth Court for “add[ing]
words” to Section 301 by limiting its application to an “initial active discharge.” Id. at 23.
DEP also explains that the civil penalty provisions in the Clean Streams Law
apply “whether or not the violation was willful” and contemplate a daily, up-to-$10,000
penalty “for each violation.” 35 P.S. §691.605(a). In light of these passages, and
otherwise, the agency reasons that the Commonwealth Court erred in opining that
violations require “some culpable action or inaction by the polluter,” EQT Prod. Co., 153
A.3d at 436. See Brief or Appellant at 34-35 (“The Clean Streams Law is a strict liability
statute and, except for certain criminal violations . . ., the Department does not need to
prove intent to pursue its enforcement remedies, including equitable actions seeking
abatement of violations, civil penalties, and administrative orders.”).
[J-86-2017] - 21
With reference to EQT’s position that a violation occurs only when a contaminant
moves from outside the waters of the Commonwealth into waters of the
Commonwealth, DEP contends that this Court rejected such position in Commonwealth
v. Harmar Coal Co., 452 Pa. 77, 306 A.2d 308 (1973). In particular, the agency relies
on the statement that “[n]othing in the Clean Streams Law” justifies the conclusion that
“pollution occurs only when polluting substances are ‘first discharged into any waters of
the Commonwealth.’” Id. at 89, 306 A.2d at 315 (emphasis in original; citation omitted;
quotation adjusted). Additionally, the Department asserts that the Commonwealth Court
effectively credited its position in some passages of its opinion, in particular, through the
court’s acknowledgement that the General Assembly intended Section 301’s prohibition
to cover not only direct discharges of industrial waste into surface waters, but also
“instances where industrial waste enters into the Commonwealth’s groundwater or
surface water through other means.” EQT Prod. Co., 153 A.3d at 430 (emphasis
added). The agency faults the Commonwealth Court for failing to follow its own
reasoning to its logical conclusion: “Section 301 addresses situations where industrial
waste enters groundwater or surface waters ‘through other means’ e.g., from soil,
bedrock, or part of another water of the Commonwealth.” Brief for Appellant at 23-24.
The Department offers that its interpretation promotes the purposes of the Clean
Streams Law, i.e., to afford strong protection for the waters of the Commonwealth. 35
P.S. §691.4 (reflecting the declaration of policy attending the Clean Streams Law); see
also Adams Sanitation Co. v. Commonwealth, 552 Pa. 304, 312, 715 A.2d 390, 394
(1998) (“[I]t is clear that the Legislature seeks to eliminate all water pollution in the
Commonwealth to the extent possible.”). To the extent that the Court might discern
ambiguity, the Department elaborates on the policy underpinnings of the Clean Streams
Law, see 1 Pa.C.S. §1921(c)(1), (3), (4), which encompass not only the prevention of
[J-86-2017] - 22
further pollution, but also reclamation and restoration “to a clean, unpolluted condition
every stream in Pennsylvania that is presently polluted.” 35 P.S. §691.4(3) (declaration
of policy). Citing to Commonwealth v. Parker White Metal Co., 512 Pa. 74, 515 A.2d
1358 (1986), the Department contends that broad enforcement powers, on its part, are
essential “to battle the tide of pollution and environmental catastrophe” and “foster the
environmental well-being of the Commonwealth of Pennsylvania.” Reply Brief for
Appellant at 15-16 (quoting Parker White Metal Co., 512 Pa. at 97, 515 A.2d at 1370).
DEP additionally highlights the presumption in favor of the public interest over
private ones, see 1 Pa.C.S. §1922(5), and the directive for courts to construe remedial
statutes broadly to effectuate their purposes, see 1 Pa.C.S. §1928(c). Responding to
the assertion that the statutory regime should be strictly construed in light of its penal
attributes, DEP emphasizes that the substantive, remedial provisions of the Clean
Streams Law are expressed separately from the penalty provisions. See
Commonwealth v. Monumental Prop., 459 Pa. 450, 461, 329 A.2d 812, 817 (1974)
(relating that the legislative emphasis, relative to strict or liberal construction, “is on
provisions, not statutes in their entirety”). The agency also explains that the Legislature
has undertaken to increase penalties over time, demonstrating its intention to fortify the
statute’s environmental protections. In this regard and otherwise, the Department
invokes the principle of deterrence. See, e.g., Reply Brief for Appellant at 22 (“The
potential for appropriate penalties will induce parties to take additional precautions
before the fact to protect water resources, and the threat of ongoing liability will induce a
party to complete a clean-up as quickly as possible.” (emphasis in original)).
Turning to the consequences of a vindication of the Commonwealth Court’s
decision, see 1 Pa.C.S. §1921(c)(6), the Department posits that the opinion nullifies the
General Assembly’s intent in enacting the Clean Streams Law. In this regard, DEP
[J-86-2017] - 23
indicates that its authority is limited to remedying violations of the enactment, and,
under the Commonwealth Court’s interpretation, there would be no violation relative to
waters remote from an initial entry point, even when severe pollution persists there after
the cessation of an initial active discharge. See, e.g., Brief for Appellant at 50 (“By
creating a gaping hole in the substance of the statute, EQT’s approach would neuter the
Department’s power to enforce the statute.”).
In terms of the allusions to limitless continuing violations, the Department points
to procedural safeguards, such as the interposition of the Board as the quasi-judicial
body determining penalties, and the allocation of the burden of proof of violations to the
agency. According to the Department, moreover, it is its practice to cap its claims for
civil penalties when a remediator has demonstrated attainment of the standards under
Act 2. Finally, DEP maintains that its administrative interpretation is entitled to
deference by the courts.
EQT, for its part, defends the Commonwealth Court’s construction of the Clean
Streams Law, to include the confinement of penalties according to the duration of an
initial active discharge. It is the company’s position that each of Sections 301, 307 and
401 prohibit “specified actions” causing an industrial waste or a substance resulting in
pollution to enter “into any of the waters of the Commonwealth.” Brief for Appellee at 13
(emphasis in original). EQT defines “into,” in this regard, as “moving from outside to the
inside of an object.” Brief for Appellee at 14 (“It is certainly not common to consider
movement of material within water to be an entry ‘into’ water.”).
The company further notes the absence of any language, in the Clean Streams
Law, specifically describing or prohibiting the movement of pollutants from one part of
water to another. See id. at 26 (“Nothing in the CSL states or suggests that a violation
occurs when a pollutant merely remains, moves or flows within water.”). In this regard,
[J-86-2017] - 24
EQT observes that, in other statutes, the General Assembly has specifically addressed
the concept of migration. See id. at 27 n.10 (“The General Assembly knows how to
address migration in express terms when it intends to do so[.]” (citing 35 P.S.
§6026.307(b) (describing environmental mitigation measures including “actions to
prevent the migration of regulated substances”)).
EQT also emphasizes the statutory focus on “any of the waters” (as opposed to
“any water”). 35 P.S. §691.301 (emphasis added). The company argues that this
demonstrates contemplation of a collective group of waters, “the entry into any one of
which is a violation.” Brief for Appellee at 15. Along these lines, EQT also relies on the
use of the word “all” within the statutory definition of waters of the Commonwealth. See
id. at 25 (“Because ‘all’ waters are ‘waters of the Commonwealth,’ the Department’s
theory cannot be employed unless the word ‘all’ is deleted from the definition, making its
interpretation improper.”). Moreover, according to the company, because the
Legislature did not explain where one part of a water begins and another ends, it “could
not have intended for courts or the regulated community to speculate what these
undefined terms mean to determine where ‘parts’ of water begin and end to determine
penalty liability.” Id. at 26-27.
EQT does submit to the Department’s authority relative to the abatement of
pollution. See, e.g., id. at 18 (“Persons violating[, inter alia, Sections 301, 307, and 401]
are subject to both penalties and any other enforcement actions necessary to abate
pollution and nuisance.” (emphasis added)). In this regard the company depicts the
Department’s treatment of its own enforcement powers as “an attempt[] to read [them]
out of the [Clean Streams Law].” Id. at 35. It is EQT’s position, however, that “[t]he
unavoidable and natural dispersion of contaminants within waters of the Commonwealth
[J-86-2017] - 25
is to be addressed through enforcement other than penalties[.]” Id. at 18.15 In this
respect, EQT observes that the penalty provisions of the Clean Streams Law are not
tied to any cleanup standard and argues that those provisions “cannot, therefore, be
tied to the time or manner by which industrial waste or pollution is removed from waters
of the Commonwealth.” Id. at 19.16
Like the Commonwealth Court, EQT stresses the concern that there is no limiting
principle under the Department’s theory, other than agency discretion. See, e.g., id. at
24 (“This concept of liability would result in limitless continuing penalties for a single
release as long as any molecule of the substance remains in any water of the
15 EQT does not relate its general reference to “unavoidable” events to the
circumstances of the leaks from its impoundment and the consequent contamination of
Commonwealth waters, and the Department takes the opportunity to respond by
highlighting the EHB’s findings of recklessness on the company’s part. See, e.g., Reply
Brief for Appellant at 21.
16 EQT’s brief also includes a discussion of the legislative history of the civil penalty
provision of the Clean Streams Law, in which the company asserts that the
replacement, in 1976, of a $500 levy “for each day of continued violation” with a
$10,000 penalty “per day for each violation” evidences the Legislature’s intent to
eliminate the concept of a continuing violation. See Brief for Appellee at 19-22
(discussing Act of Oct. 7, 1976, P.L. 1099, No. 222). The company’s brief, however,
appears to accept that one who fails to terminate an initial active discharge of industrial
waste into waters of the Commonwealth commits a continuing violation and incurs daily
penalties until the cessation of such initial active discharge or entry. Indeed, in some
passages of its brief, the company ties cessation to the point “when the industrial waste
no longer enters into waters of the Commonwealth.” Id. at 9. Thus, EQT’s arguments
appear to go to the scope of continued violations and to the fact of serial ones, rather
than to the possibility of a continued violation in the abstract. Accord id. at 17
(indicating that “each day of violation under Section 301, 307 or 401 of the Clean
Streams Law requires proof of entry into waters of the Commonwealth.” (emphasis
added)); id. at 34 (recognizing that a violation may span “one day or one hundred
days”).
Accordingly, we view the contemplated distinction between imposition of daily penalties
for a “continued violation” and a penalty “per day for each violation” as unpersuasive.
[J-86-2017] - 26
Commonwealth.”); id. at 54 (“Given the detection technology now available and the
ability to analyze various constituents at parts per billion and parts per trillion
concentrations, neither [EQT] nor any other party cleaning up contaminated sites in the
Commonwealth could ever achieve a cleanup that would preclude the perpetual penalty
liability posited under the Department’s interpretation.”). The company characterizes
the Department’s allusions to its asserted practice of tying penalties to Act 2 cleanup
standards as “self-serving” and capable of revision at any time. Id. at 28 (“The
Department simply says that responsible parties should trust the Department’s ‘practice’
and the Environmental Hearing Board to be reasonable.”). EQT envisions that liability
should turn on actions or inactions of those who release contaminants, not passive
movement of substances in the environment and the complexity of affected water
systems. See id. at 32 (“The General Assembly could not have intended the absurd
result that ‘parts’ of groundwater, or parts of a surface water body, must be delineated
and described by experts for persons to have notice of, or for the Department, the
Environmental Hearing Board, or any court to determine, when, where or how violations
occur.”); see also id. at 37 (“The Commonwealth cannot accomplish its purpose of a
vibrant economy if business and property owners are held to excessive and
unreasonable standards, subject to penalties in perpetuity for conditions that may well
be entirely beyond their ability to control.”).
EQT regards the civil penalty regime as a penal statute that must be strictly
construed in a manner that provides clear notice of unlawful conduct and potential
penalties, see 1 Pa.C.S. §1928(b)(1), and it argues that the Department’s theory is not
entitled to deference, because it lacks the power to persuade. Additionally, the
company posits that the severe penalty exposure contemplated by the Department
would chill business activities, as well as voluntary efforts to remediate pollution. See,
[J-86-2017] - 27
e.g., Brief for Appellee at 56 (“The Department’s interpretation would nullify the
environmental liability protection afforded by Act 2 and significantly curtail the future
redevelopment of thousands of former industrial and commercial sites, which is
antithetical to the very purpose of Act 2.”).
1) Ambiguity
We begin with the conclusion that Clean Streams Law is ambiguous as it relates
to the ongoing migration of previously-released contaminants among the waters of the
Commonwealth and their many parts.
Legislative enactments reposed in the vital arena of environmental protection
present difficult challenges for the judiciary. Many courts have observed the imprecision
integrated into such statutes. In the first instance, operative terms and phrases that are
frequently used -- such as, here, “discharge” and “permit to flow” -- would appear to
overlap. Cf. Carson Harbor Vill., Ltd. v. Unocol Corp., 270 F.3d 863, 878-79 (9th Cir.
2001) (observing a similar overlap between the terms “discharge” and “release” as
employed in a federal environmental protection statute). These terms and phrases are
also inexplicit concerning whether, or to what degree, they may encompass movement
beyond the realm of human direction or control. See, e.g., id. at 878 (explaining, with
reference to terms including discharge, release, and disposal, that “one can find both
‘active’ and ‘passive’ definitions for nearly all of these terms in any standard
dictionaries” (emphasis in original)).17 Concomitant to the efforts of legislatures to
17 The same holds true for the use of the word “permit” in Section 301, as it is used in
the phrases “permit to flow” and “continu[ing] to . . . permit to flow.” While certainly
“permit” can be used in some contexts in a wholly passive manner, in others it has been
defined to “require a willful act or a willful failure to act in the face of a clear opportunity
to do so.” United States v. Semenza, 835 F.2d 223, 224 (9th Cir. 1987) (also noting
that the word “allow” -- a synonym to “permit” -- “has no rigid or precise meaning”
(quoting BLACK’S LAW DICTIONARY 70 (5th ed. 1979)).
[J-86-2017] - 28
implement broad-scale protections for the environment, many important details have
been left to judicial and administrative interpretation.
Some courts have interpreted phrases such as “discharge” and “release” in the
environmental context as encompassing “movement from a place of confinement to
another place where there is no confinement.” Consumer Advocacy Grp. v. Exxon
Mobile Corp., 128 Cal. Rptr. 2d 454 (Cal. Ct. App. 2002) (relying on various dictionary
definitions). We find this to be a natural reading of the Clean Streams Law, in that
discharging or permitting to flow or continuing to do so, directly or indirectly, into waters
of the Commonwealth, can reasonably be viewed from the point of the initial release
and entry into water. It is less natural, in our view, to view discharges and other forms
of release as also entailing serial entries into different waters of the Commonwealth as
contaminants migrate through parts of those waters. Accord DEP v. EQT Prod. Co.,
No. 2014-140-CP-L, 2014 WL 5591063, at *6 (EHB Oct. 28, 2014) (“‘Passive migration’
seems different than entry into waters of the Commonwealth.”).
For example, one who has contained a leak, or stopped the movement of
contaminants at the source, can be said to have ceased their release.18 Of course, the
statutory scheme embodies a broader conception of release to encompass, or to be
attended by, movement “into any of the waters of the Commonwealth.” 35 P.S.
§§691.301, 691.307, 691.401. But, incorporating this perspective, once contaminants
no longer pass through the initial point of entry into water, it is reasonable to say that the
18 In this instance and hereinafter, we use the term “release,” for the sake of
convenience, to connote discharges, permitting to flow, and continuing to discharge or
permit to flow, all directly or indirectly. Consistent with the manner in which EQT framed
its case for declaratory relief, see supra note 8, we also assume that the leaks from the
company’s impoundment, coupled with their initial entry into protected waters, implicate
the above terms and phrases in a manner that is sufficient to constitute at least one
violation of each of Sections 301, 307 and 401.
[J-86-2017] - 29
substances are no longer being released into any of waters of the Commonwealth on
that pathway. The close association between the terms and phrases connoting release
and the depiction of movement into any of the waters of the Commonwealth supports
this understanding of the statute.19
On the other hand, the Clean Streams Law does bear the Department’s
interpretation as well. Notably, none of EQT’s technical arguments based on the
language of the statute reveal an incontrovertible meaning. For example, as the
Department observes in its reply brief, the company’s own reference to a dictionary
definition of “into” portrays movement from one water into another. See Brief for
19 To the extent that Justice Donohue relies on the continue-to-permit-to-flow language
to demonstrate that the statute’s prohibition is not limited to the initial release of waste,
we take no issue with this point. Certainly, as long as industrial wastes are permitted to
continue to flow into waters of the Commonwealth a continuing violation occurs. We are
not persuaded, however, that the statute plainly excludes a distinction between
continuing violations and serial, remote ones premised on discrete entries into different
waters or parts thereof. Accord EQT Prod. Co., No. 2014-140-CP-L, 2014 WL
5591063, at *6 (“‘Passive migration’ seems different than entry into waters of the
Commonwealth.”).
Justice Donohue appears to suggest that the continue-to-permit-to-flow phraseology is
capable of only a single understanding predicated upon a violator’s conscious
allowance of the flow of industrial waste “without taking any action to stop it.”
Concurring and Dissenting Opinion, slip op. at 2-3 & n.2. As Justice Donohue otherwise
recognizes, however, even the agency charged with enforcement authority for the
statute maintains a different interpretation. In this regard, DEP posits that the relevant
statutes entail strict liability throughout, such that knowledge and an active response to
abate (short of full remediation) are irrelevant to liability exposure. See Brief for
Appellant at 34-35 (rejecting the position of the Commonwealth Court that violations
require culpable action or inaction by a polluter).
We, of course, do not mean to suggest that DEP’s interpretation must be deemed
controlling, as again, we are focused on demonstrating the ambiguity in this complex
series of environmental regulatory statutes containing many undefined terms carrying
multiple potential connotations.
[J-86-2017] - 30
Appellee at 14 (quoting Webster’s Dictionary as offering as an example of the usage of
the word “into” “as . . . one stream falls or runs into another”). By way of another
example, EQT’s reliance on Section 301’s reference to “any waters of the
Commonwealth” (as opposed to “any water”), downplays the status of “waters of the
Commonwealth” as a defined term. In this regard, substituting that definition into
Section 301 yields the following legislative expression:
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 [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 . . .] any industrial wastes, except as hereinafter
provided in this act.
35 P.S. §§691.1, 691.301.
The operative terms of Section 301 thus reduce to release into “any of the any
and all” bodies or channels of water or parts thereof, and even EQT recognizes that the
language subsumes “any one.” Brief for Appellee at 15. Accordingly, the company’s
arguments provide no plain-meaning, textual basis to discount the Department’s theory
that every time contaminants move into “any one” of the many parts of the waters of the
Commonwealth from anywhere else (including another part of a water) after having
been released by a violator, a serial violation occurs.20
20 There are many cases reflecting the ambiguity of the word “any,” which appears
repeatedly in the operative terminology discussed above. See, e.g., Shue v. Nevada,
407 P.3d 332, 336 (Nev. Dec. 14, 2017) (commenting that “any” can mean one; one,
some, or all regardless of quantity; great, unmeasured, or unlimited in amount; one or
more; and all (citation omitted)).
[J-86-2017] - 31
The other limiting principle suggested by the arguments of EQT and its amici is
premised on the company’s passivity at points of entry remote from the place of initial
release and entry into a protected water. See, e.g., Brief for Amici Chamber of
Commerce of the U.S.A., Pa. Chamber of Bus. & Indus., and the Greater Pittsburgh
Chamber of Commerce at 6 (“The specific verbs the statute employs -- ‘put,’ ‘place,’
‘discharge,’ and ‘flow’ -- all focus on the action of a person introducing a pollutant into
waters in Pennsylvania[.]”). As previously explained, however, operative terms within
each of Sections 301, 307 and 401 may be read to carry passive connotations. See,
e.g., Carson Harbor Vill., 270 F.3d at 878. In this vein, neither EQT or its amici have
provided any developed reasoning -- at least relative to the point of the initial release of
industrial waste from the company’s impoundment -- to controvert the Department’s
assertion that the Clean Streams Law imposes a form of strict liability. And, as a matter
of strict but-for causation at least, one who has released a contaminant into one water
can also be said to have released it indirectly into another as well, as the substance
migrates from water to water. We therefore disagree with EQT and its amici that the
plain terms of the statute exclude the meaning ascribed to it by the Department.
What is plain that the Legislature used broad terms and phrases to prohibit the
unauthorized release of industrial waste into any of the waters of the Commonwealth,
and that the design was to protect the entire sphere, including each and every part. We
conclude, however, that it is not apparent from the face of the statute whether the
General Assembly contemplated doing so via a litmus focusing on preventing
movement into any discrete water or part, thereby also protecting the other waters at
large, or if it wished to serially sanction movement among waters (and their parts) after
the fact of an initial violation.
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2) Resolution
Of the competing constructions, we find it most reasonable to conclude the
Legislature was focused on protecting the waters of the Commonwealth with reference
to the places of initial entry. Again, we find this to be the most natural reading of the
statute. Moreover, we agree with EQT that, had the General Assembly intended
differently, it would have been a simple matter to address water-to-water migration in
express terms. At the very least, had the Legislature wished to codify the water-to-
water theory, it could have sanctioned movement of contaminants “into or among” any
of the waters of the Commonwealth, rather than merely “into” any such waters.
Clarity, in this respect, is particularly implicated in light of the scale of the penalty
exposure generated under the Department’s contrary construction of the statute.
DEP’s theory contemplates serial and continuing daily civil penalties of up to $10,000
per day, as well as potential criminal liability, for each pool of groundwater, finger of a
lake, branch of a stream, crook of a rivulet, ditch among a series of ditches, or any other
part of any of these that the agency may be able to identify, however the agency may
construe the concept of a part of a water. See 35 P.S. §691.1 (definition of “Waters of
the Commonwealth”). This is, of course, in addition to the cost of remediation borne by
violators. And, since Sections 301, 307, and 401 do not address remediation
standards, liability exposure would persist even after all relevant cleanup requirements
were met, as long as some microscopic amount of contaminants might remain present
to move among waters and parts of waters.21 It is worth noting, as well, that the
21 The Department points to an informal practice, on its part, to cap its claims for civil
penalties, at the latest, when a remediator has met Act 2 cleanup standards. See Brief
for Appellant at 59. As EQT and its amici relate, however, it is not reasonable to
suggest that persons and businesses assessing whether to assume the risk of incurring
strict liability exposure on the scale envisioned under DEP’s construction of the actual
terms of the governing statutes should rely on a regulatory agency’s discretionary,
(continued…)
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maximum $10,000 civil penalty was far more potent when it was added to the Clean
Streams Law in 1970 by the Legislature, and when that figure was extended in 1976 to
daily continuing violations.22 See U.S. Dep’t of Labor, Bureau of Labor Statistics CPI
Inflation Calculator (available at https://www.bls.gov/data/inflation_calculator.htm)
(relating that $10,000 had the same buying power in 1970 as approximately $65,000
today).
We appreciate the critical need for protection to vindicate the constitutional
entitlement of the citizenry to a clean environment and recognize that the Clean
Streams Law is designed as a mechanism to advance this salutary objective. See PA.
CONST., art. I, §27. Nevertheless, and at bottom, we believe that if the General
Assembly wished to create the sort of massive civil penalty exposure administered by
the Department on a strict-liability basis, see Brief for Appellant at 34, it would have said
so more expressly. In the absence of such clarity, we find the agency’s expansive
construction of a statute that is inexplicit in such regards to be too unreasonable to
support an affordance of deference. Cf. General Elec. Co. v. EPA, 53 F.3d 1324, 1328-
29 (D.C. Cir. 1995) (explaining that, when sanctions are drastic, “‘elementary fairness
compels clarity’ in the statements and regulations setting forth the actions with which
(…continued)
informal, and potentially transient practices. See Brief for Appellee at 55; Brief for Amici
Chamber of Commerce of the U.S.A., Pa. Chamber of Bus. & Indus., and the Greater
Pittsburgh Chamber of Commerce at 9-11.
22See Act of July 31, P.L. 653, No. 222, §16; Act of Oct. 7, 1976, P.L. 1099, No. 222,
§1.
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the agency expects the public to comply” (quoting Radio Athens, Inc. v. FCC, 401 F.2d
398, 404 (D.C. Cir. 1968)).23
We also do not regard the decision in Harmar Coal as controlling. That case
concerned the application for a permit to authorize pumping of untreated acid mine
drainage from places of relative containment (the bases of coal mines) into surface
waters of the Commonwealth. See Harmar Coal, 452 Pa. at 80-82, 306 A.2d at 310-11.
The Court simply did not consider the validity of a serial-violation theory predicted on
remote instances of contaminants moving from uncontained parts of waters into other
parts of waters. See generally Oliver v. City of Pittsburgh, 608 Pa. 386, 395, 11 A.3d
960, 966 (2011) (explaining that the holding of a judicial decision is read against its
facts) (citing Commonwealth v. McCann, 503 Pa. 190, 195, 469 A.2d 126, 128 (1983))).
In terms of the Department’s enforcement powers relative to abatement and
remediation, we agree with EQT that the agency’s present submissions understate the
breadth of its authority. We recognize that some of DEP’s powers are keyed to
violations, see, e.g., 35 P.S. §691.401, such that, if there is no specific violation relative
to a particular water, enforcement under those particular provisions relative to that water
would not be implicated under a strict reading. The Clean Streams Law, however, has
armed the Department with multiple tools to require remediation by those who may have
released polluting substances into the waters of the Commonwealth. See, e.g., 35 P.S.
§691.503 (“[W]henever . . . a pollution [associated with a violation of the orders and
regulations of the Department] shall be maintained or continued contrary to such orders
23Among the other reasons for suggesting that liability is not limitless, discussed above,
DEP also points to a five-year statute of limitations. See Reply Brief for Appellant at 12.
The agency offers no explanation, however, concerning when liability accrues, for
purposes of the commencement of the limitations period, relative to continuing and
serial violations.
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and regulations, the same may be abatable in the manner provided by this act.”). DEP
has also implemented various legislative regulations requiring immediate remedial
action relative to dangers caused by incidents involving the release of substances
causing pollution, see, e.g., 25 Pa. Code §91.33(b), which are absent from its
submissions here. Additionally, the Department has not discussed its authority relative
to the abatement of pollution in the form of a common-law public nuisance. See
Commonwealth v. Barnes & Tucker Co., 455 Pa. 392, 410-14, 319 A.2d 871, 881-83
(1974). Finally, nothing in this opinion should be read to constrain a broad reading of
the Clean Streams Law relative to administrative powers of enforcement pertaining to
the abatement and remediation of pollution, as presently we are focused on aspects of
the statute that are integrally interrelated with its penalty provisions.24
In terms of the applicable principles of statutory construction, we rely
substantially on consideration of the consequences of a particular interpretation, see 1
Pa.C.S. §1921(c)(6), and the presumption that the General Assembly does not intend a
result that is unreasonable, see id. §1922(1). As to reasonableness, we have no
intention to suggest that the General Assembly could not, subject to constitutional
limitations, impose upon a water-to-water theory of serial, ongoing violations. We have
found it unreasonable, however, to believe that it would have chosen to do so absent
clear and explicit notice signaling the potential scope, scale, and duration of the liability
exposure.
24 It might go without saying that we respectfully differ with Justice Donohue’s portrayal
of our opinion as an effort to promote “proportional penalties” at the “expense of abating
pollution.” Concurring and Dissenting Opinion, slip op. at 7-8.
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C. The Soil-to-Water Theory
The Department’s present arguments subsume its soil-to-water theory of
continuing liability, see, e.g., Brief for Appellant at 23-24, but most of its presentation is
centered on the water-to-water theory, and EQT does not directly respond to the soil-to-
water theory as such. Moreover, despite having commenced the declaratory judgment
action specifically to address this theory, the company did not carry that effort into the
summary relief stage. Furthermore, some of EQT’s present arguments would seem to
be consistent with the theory. See, e.g., Brief for Appellee at 17 (positing that liability for
civil penalties under the Clean Streams Law “attaches to the entry of the pollutant into
waters of the Commonwealth, and it ends when such entry ends”). In other passages,
however, the company does maintain its focus on “some action or inaction by the
polluter to give rise to a violation.” Id. at 51.
Because the contours of civil penalty liability based on the migration of
contaminants through soil into water are not sharply in focus before us, as with the
Commonwealth Court’s determinations pertaining to Sections 307 and 401, we decline
to address the matter here. In this regard, we incorporate our previous prudential
concerns, while noting that the soil-to-water theory would appear to be at issue in the
Commonwealth Court’s pending review of the EHB’s penalty determination.
III. Mandate
The Commonwealth Court’s decision is affirmed to the extent that it is consistent
with the declaration below and is vacated in all other respects.
The mere presence of a contaminant in a water of the Commonwealth or a part
thereof does not establish a violation of Section 301, 307, or 401 of the Clean Streams
Law, since movement of a contaminant into water is a predicate to violations. This
[J-86-2017] - 37
statement pertaining to the governing legal standard is distinct from whether and to
what extent presence may serve as evidence of movement. See supra note 5.
The Department’s water-to-water theory of serial violations is rejected on the
terms discussed in this opinion.
Nothing in this opinion should be read to approve or discount the Department’s
soil-to-water theory.
Jurisdiction is relinquished, and these declaratory judgment proceedings are
terminated.
Justices Baer, Todd, Wecht, and Mundy join the opinion.
Justice Donohue files a concurring and dissenting opinion in which Justice
Dougherty joins.
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