Earlier this year, the Pennsylvania Commonwealth Court held that EQT Production Co., a drilling company, could not sue the Pennsylvania Department of Environmental Protection (DEP) in Commonwealth Court to void a proposed $1.2 million fine against the company for a fracking wastewater spill. (EQT Prod. Co. v. DEP, 114 A.3d 438 (Pa. Commw Ct. 2015))

The Judge’s Ruling

Senior Judge Rochelle Friedman held that the Pennsylvania Commonwealth Court was not the proper jurisdiction to hear a complaint over the proposed fine. She ruled that the proper forum was the Pennsylvania Environmental Hearing Board, an administrative court, which was created in 1971 and which has the exclusive authority to assess financial penalties.  She ruled that the Pennsylvania DEP proposed penalty only represented an interpretation of the law and that, therefore, EQT’s assertion of harm was speculative.

The Basis for the Environmental Fine

The fines originated from a claim that EQT was in violation of Pennsylvania’s Clean Streams Law (Act of Jun. 22, 1937, P.L. 1987, No. 394 Cl. 32.). EQT’s principal complaint contests the amount of the fine and the basis for the fine. The DEP’s position is that the fine can be calculated based on the days the contaminants from EQT’s activity actually remain in the soil, even after the source of the discharge is removed. EQT’s counter position is that the fines only apply to the days there was an active leak. The pollutants at issue included arsenic, barium, chloride, copper, iron, lithium, lead, manganese and strontium.

The DEP originally sought $4.5 million in fines due to leaks from 200 holes in the lining of a six million gallon wastewater impoundment located near Rock Run in Tioga County in 2012, which impacted a high quality stream. Elevated chloride levels, which were discovered after EQT built a pit in 2011, alerted the Pennsylvania DEP to the environmental problem. The Pennsylvania DEP claimed that the fracking leaks were continual. The Pennsylvania DEP also claimed that EQT originally agreed to store just fresh water but later decided to store wastewater from fracking, which use would have required the use of monitoring wells or leak detection.  Further, the DEP accused EQT of failing to cooperate by continuing to add the contaminated water to the impoundment even after they learned of the elevated chloride levels.

Possible Criminal Violations

The $1.2 million proposed civil penalty is only one cause for concern for EQT. EQT is also facing misdemeanor criminal charges. The criminal charges are being brought by the Pennsylvania Office of Attorney General for water pollution and waterway disturbances also caused by the leak.

Michelman and Bricker Advises Clients Charged with Environmental Violations

Philadelphia environmental lawyers at Michelman & Bricker, P.C. advise clients about the Pennsylvania Clean Streams law and other state and federal environmental laws. Our lawyers represent clients that are charged with violations of environmental laws before appropriate administrative courts and in civil and criminal matters in Pennsylvania, New Jersey and Massachusetts. Individuals and companies confronted with allegations of property or water contamination, or even requests for information from state and federal agencies regarding alleged contamination, should contact us for advice on how to reduce any potential liability and financial penalties.  Because agencies will assess penalties accruing on a daily basis for violations of environmental laws and failure to comply with information requests, the fines can add up quickly.  If you are faced with an administrative penalty or charged with malfeasance, contact our firm to discuss your company’s situation. Call 215-557-9440 or submit our online form.