Commonwealth Court Limits Clean Streams Law Penalties

On January 11, 2017, the Pennsylvania Commonwealth Court issued a significant decision granting declaratory relief with respect to the proper interpretation of Section 301 of the Clean Streams Law. Specifically, the Commonwealth Court held that Section 301 of the Clean Stream Law does not authorize the Pennsylvania Department of Environmental Protection to impose ongoing penalties for the continuing presence of an industrial waste in a waterway of the Commonwealth following the initial entry of the pollutants.

The case arose from a dispute between a natural gas operator and PADEP concerning the appropriate penalty amount for an impoundment leak that occurred in 2012. Following the discovery of a leak in the impoundment, the natural gas operator notified PADEP, emptied the impoundment, patched the liner, installed sumps and trenches at five downgradient locations to collect and intercept affected groundwater, and removed all affected soil.

PADEP subsequently proposed a Consent Assessment of Civil Penalty for the leak in the amount of $1,270,871, based, in part, on “new, continuing, and ongoing impacts to the multiple waters of the Commonwealth.”  PADEP interpreted the Clean Streams Law as authorizing a penalty under a continuing violation theory for every day that industrial waste remains in a water of the Commonwealth. The operator disagreed with PADEP’s interpretation, urging the Commonwealth Court to rule that a violation occurs only on the days that the pollution is discharged from an area outside of the waters of the Commonwealth.

In agreeing with the operator’s interpretation, the Commonwealth Court noted that 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.”
Thursday, January 26, 2017

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