EQT Production Co v. Dept. of Env. Prot. (majority)Annotate this Case
Appellee EQT Production Company (“EQT”) brought this declaratory action when it became exposed to the civil penalties under the Clean Streams Law in 2012 on account of leaks from an impoundment used to contain impaired water flowing back from hydraulic fracture gas wells. According to the complaint, much of the penalty exposure asserted by the regulatory agency, the Department of Environmental Protection (“DEP” or the “Department”), was premised on a “continuing violation” theory predicated on passive migration of contaminants from soil into water. The Pennsylvania Supreme Court was tasked with determining the scope of those civil penalties. The Court determined that the mere presence of a contaminant in a water of the Commonwealth or a part thereof does not establish a violation of Section 301, 307, or 401 of the Clean Streams Law, since movement of a contaminant into water is a predicate to violations. This statement pertaining to the governing legal standard is distinct from whether and to what extent presence may serve as evidence of movement. The Department’s water-to-water theory of serial violations was rejected, and the Court emphasized nothing in this opinion should be read to approve or discount the Department’s soil-to-water theory.