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The Pennsylvania Clean Streams Law, enacted in 1937, is the main law designed to protect our state’s abundant fresh water resources – from fast rushing mountain streams, to slower flowing valley rivers, to underground water that navigates through cracks and spaces between rock and soil.
The Clean Streams Law sets forth the essential legal framework intended to “preserve and improve the purity of the waters of the Commonwealth.”
Despite its importance, the Pennsylvania Supreme Court has issued but two decisions interpreting the liability provisions of the Clean Streams Law over the past 20 years. In 1998, the Court held in Adams Sanitation Co., Inc. v. Dept. of Envtl. Protection that the Department of Environmental Protection (Department) could, under Section 316, require an owner or lessor of land to correct pollution that existed on that land, regardless of whether the person caused or knew about the pollution.
Four years later, in Chalfont-New Britain Township Joint Sewage Authority v. Bucks County Water and Sewer Authority, the Court held that a county that allegedly contributed excess sewage to a joint treatment plant could be sued for discharging sewage indirectly into waters of the Commonwealth without a permit under Section 202 of the Clean Streams Law.
The Supreme Court’s only other Clean Streams Law decisions during that time concerned the statute’s attorney fee provisions.
Now, the Supreme Court is about to decide its third liability case in the past 20 years. In EQT v. Department of Environmental Protection, the Supreme Court will review a Commonwealth Court decision that limited the circumstances under which the Department of Environmental Protection could impose civil penalties on companies that unlawfully discharge industrial waste into waters of the Commonwealth.
EQT owned and operated a gas well pad in Duncan Township, Tioga County at which it constructed an impoundment used to store contaminated wastewater from its fracking operations. Even though it was constructed with a synthetic liner, the wastewater impoundment leaked contaminated wastewater into area groundwater.
EQT eventually drained the impoundment, patched the leak, and removed contaminated soil from the site. It also took actions to intercept and collect polluted groundwater. The Department sought to impose a multi-million dollar civil penalty on EQT under Sections 301, 307 and 401 of the Clean Streams Law for contaminating the groundwater.
Sections 301 and 307 of the Clean Streams Law prohibit the discharge of industrial waste into waters of the Commonwealth. Section 401 makes it unlawful for any person to discharge from property owned or occupied by them “any substance of any kind” that results in pollution of waters of the Commonwealth.
Before Commonwealth Court, EQT argued that a violation of the Cleans Streams Law occurs only on the days when industrial waste is initially introduced into the waters of the Commonwealth, and that there is no violation for days that the pollutant, “continues to be present.” The Department argued that waters of the Commonwealth are made up of distinct parts – such as surface water and groundwater – and that separate violations of the law occur as the industrial waste enters and pollutes these distinct parts.
The Commonwealth Court accepted the company’s interpretation rather than that offered by the Department, holding that that Sections 301 and 307 are violated only when industrial waste initially enters a water of the Commonwealth.
The Court also held that the release of industrial waste to the groundwater did not violate Section 401 of the Clean Streams Law, because that provision’s prohibition on discharging “any substance of any kind causing pollution” was intended to cover pollutants other than the industrial waste regulated under Sections 301 and 307.
The Department then appealed the Commonwealth Court’s decision to the Supreme Court.
Because of the import of the case, PennFuture filed a friend-of-the-court (or amicus brief) in support of an interpretation of the Clean Streams Law that provides the agency with broad authority to impose substantial penalties when a company engages in conduct that causes widespread pollution to waters of the Commonwealth.
The submission of briefs is expected to conclude this summer. The Supreme Court will then schedule oral argument in the case, after which it will render a decision. There is, however, no deadline by which a decision must be issued.