Posted on May 3, 2018 by Kenneth Warren
Those of us who remember Bob Barker’s years as host of the game show Truth or Consequences recognize the title of this blog as his customary closing line. His desire to limit the ramifications of bad decisions has a corollary in Pennsylvania law. As the Pennsylvania Supreme Court recently held, statutory provisions may be construed narrowly “substantially in consideration of the consequences of a particular interpretation.”
In EQT Production Co. v. Pa. Dep’t. of Envtl. Prot., an energy company operated an impoundment to contain hydraulic fracturing wastewater. Wastewater leaked through holes in the impoundment’s liner into the underlying base layers, soils and “waters of the Commonwealth” which include “underground waters, or parts thereof.”
The release from the impoundment into groundwater clearly violated the prohibition in the Pennsylvania Clean Streams Law on discharging or permitting the discharge of industrial wastes into the waters of the Commonwealth. Anticipating that the Pennsylvania Department of Environmental Protection (PADEP) would seek a penalty for each day that contaminants remained present in the environment, EQT sought a judicial declaration that civil penalties may be imposed only for days that pollutants were actually discharged from the impoundment.
As the declaratory judgment action progressed, PADEP acknowledged that the mere presence of contaminants in groundwater would not alone support the imposition of penalties. But it contended that a violation occurred on each day that the contaminants initially released from the impoundment passively migrated from soil to groundwater (the “soil-to-groundwater” theory) or moved from one part of the waters of the Commonwealth to another (the “water-to-water” theory).
The Pennsylvania Supreme Court concluded that the language of the Clean Streams Law, which prohibits any discharge of an industrial waste “into” a water of the Commonwealth, is ambiguous. The language could be interpreted to cover only movement of a pollutant from outside the waters of the Commonwealth into these waters, but could also be read to include movement of a previously released contaminant from one part of the Commonwealth’s waters into another part.
In resolving the ambiguity, the Court noted that even after remediation occurs, a small quantity of contaminants may remain present in groundwater and continue to migrate. If each day constitutes a violation, massive civil penalties would result. Principally because it believed this consequence to be unreasonable, the Court rejected the water-to-water theory. By excluding water-to-water mitigation from the ambit of the Clean Streams Law’s prohibitions, the Court created Pennsylvania’s version of the “unified waters” approach. At least in this context, it makes good sense.
But EQT still suffered serious liabilities. It was required to remediate the contamination that it caused. And the soil-to-groundwater theory remains in play; the Court chose not to rule on its validity because EQT’s pleadings and application for summary relief did not raise that challenge. Penalties in excess of $1 million were assessed against EQT and will be reviewed on appeal. In a fictional game show world, all consequences are happy ones. In real life, even a solicitous state Supreme Court will not guarantee an entirely happy ending for a party who has violated environmental laws.