|

Editor's note: This is the second in a two-part series.

The Pennsylvania appellate courts decided a relatively large number of environmental cases during 2018. In this part of the series, I will discuss enforcement, the Oil and Gas Act, valuation and a few other cases of note.

Enforcement

EQT Production v. Department of Environmental Protection, 181 A.3d 1128 (Pa. 2018), received considerable attention for considering the question whether the DEP may assess a daily penalty for each day that contamination remains in soils and migrates to groundwater, or whether the only violation subject to a penalty occurs at the time of the original release to the environment. In this case, the initial release was leakage from a lined impoundment used to receive produced water from completion of a natural gas well. The Pennsylvania Supreme Court decided that the mere presence in soils was not a discharge to groundwater under the Clean Streams Law; DEP had to prove an actual discharge on each day. The Supreme Court remanded to the Environmental Hearing Board for that purpose. The EHB assessed penalties, the bulk of which were for the period after the time the impoundment was drained (so it could no longer leak), but before the subbase had been excavated and removed. On appeal from the EHB, the Commonwealth Court affirmed the assessment, holding that daily releases from the soil to the groundwater could be proven by expert testimony, see EQT Production v. DEP, No. 844 CD 2017 (Pa. Commw. Ct. Sept. 10, 2018). The court also affirmed application of a “merger rule” under which the EHB would assess only one daily penalty for the same act, even though it might violate multiple statutory or regulatory obligations.

The DEP brought an action in the court of common pleas to enforce a consent agreement under which the defendant promised to remove solid waste from the site of a former composting facility in Commonwealth, Department of Environmental Protection v. Green 'N Grow Composting, No. 367 CD 2018 (Pa. Commw. Ct. Dec. 31, 2018). Among other things, the Commonwealth Court held that the definition of “solid waste” in the Solid Waste Management Act was specific enough to support the enforcement action; the defendant knew what it was required to remove.

Oil and Gas Act

The Environmental Quality Board adopted new regulations directed at unconventional oil and gas activity, 25 Pa. Code chap. 78a. They included a requirement that the DEP evaluate certain features (such as others' nearby abandoned wells) and require setbacks from others (such as schoolyards) in permitting a well. Some of those requirements were not called for specifically by Act 13. Accordingly, the Commonwealth Court preliminarily enjoined enforcement of those provisions, which injunction was affirmed, see Marcellus Shale Coalition v. Department of Environmental Protection, 185 A.3d 985 (Pa. 2018). The Supreme Court there raised a question whether the DEP has authority to protect private resources or to call for investigations on private property other than that of the permittee unless an actual incident has occurred. On the merits, the commonwealth invalidated those portions of the regulations, see Marcellus Shale Coalition v. Department of Environmental Protection, No. 573 MD 2016 (Pa. Commw. Ct. Aug. 23, 2018), appeal quashed, No. 54 MAP 2018 (Pa. Nov. 28, 2018).