Argued January 21, 2015.
Publication Ordered April 29, 2015.
Court of ORIGINAL JURISDICTION.
Robert L. Byer, Kevin J. Garber, and Leonard Fornella, Pittsburgh, for petitioner.
Dennis A. Whitaker, Chief Counsel, Harrisburg, for respondent.
OPINION AND ORDER
ROCHELLE S. FRIEDMAN, Senior Judge.
Before this court are the preliminary objections (POs) filed by the Department of Environmental Protection of the Commonwealth of Pennsylvania (DEP) to the Complaint in Action for Declaratory Judgment (Complaint) filed by EQT Production Company (EQT). We sustain the POs and dismiss EQT's Complaint.
In its Complaint, EQT states that it owns and operates natural gas wells. EQT constructed a subgrade impoundment (Pad S Impoundment) near a gas well pad in Duncan Township, Tioga County, fitted with an impervious synthetic membrane liner to contain impaired water generated from hydraulic fracturing.
On May 30, 2012, EQT concluded that the Pad S Impoundment was leaking into the subsurface and notified DEP. Twelve days later, on June 11, 2012, the Pad S Impoundment was completely emptied of impaired sludge. Upon removal of the water and sludge, EQT entered into a formal cleanup process under the Land Recycling and Environmental Remediation Standards Act and continues to remediate affected soil and groundwater.
On May 9, 2014, DEP sent a proposed Consent Assessment of Civil Penalty (Consent
Assessment) to EQT. DEP alleged that discharge of the impaired water from the Pad S Impoundment violated The Clean Streams Law (Law) and sought a penalty of $1,270,871. DEP's proposed penalty included $900,000 for ongoing discharge in violation of sections 301, 307(a), and 401 of the Law, 35 P.S. § § 691.301, 691.307(a), and 691.401. According to DEP, civil penalties may be assessed for the passive migration of material in the environment after the initial discharge into the environment has ended.
On September 19, 2014, EQT filed the Complaint. EQT claims that DEP may assess civil penalties for only those days that pollutants were actually discharged from the Pad S Impoundment. EQT argues that DEP's interpretation of the Law, that it may assess penalties for ongoing discharge, is overly broad. EQT asks this court to enter judgment ...