Newspaper article Pittsburgh Post-Gazette (Pittsburgh, PA)

Court Strikes Down Dep Fines Method Spread of Pollution Was at Issue in Ruling

Newspaper article Pittsburgh Post-Gazette (Pittsburgh, PA)

Court Strikes Down Dep Fines Method Spread of Pollution Was at Issue in Ruling

Article excerpt

When pollution flows from one water body to another after a spill, it cannot be counted as a separate violation under state law, the Pennsylvania Supreme Court ruled Wednesday in a case that could make it more difficult for state regulators to impose large fines in cases of water contamination.

The high court sided with Downtown-based EQT Corp., which challenged the state Department of Environmental Protection's manner of calculating penalties for pollution that continues to spread through water after an initial release.

In a case that saw each side shifting the terms of its arguments, the Supreme Court affirmed what EQT, DEP and their respective allies appeared to agree on: that the mere presence of contaminants in waterways does not establish a violation of the state Clean Streams Law since it is movement of pollution into water that triggers a violation.

But on an issue "of considerable public importance," the court struck down DEP's theory that violations mount as pollution travels from one section of a waterway to another, saying that the "most natural reading" of the law is that the Legislature was focused on the point when pollution initially enters a waterbody.

"DEP's theory contemplates serial and continuing daily civil penalties of up to $10,000 per day, as well as potential criminal liability, for each pool of groundwater, finger of a lake, branch of a stream, crook of a rivulet, ditch among a series of ditches, or any other part of any of these that the agency may be able to identify, however the agency may construe the concept of a part of a water," Chief Justice Thomas Saylor wrote in an opinion joined by Justices Max Baer, Debra McCloskey Todd, David Wecht and Sallie Updyke Mundy.

If the General Assembly "wished to create the sort of massive civil penalty exposure administered by the department on a strict-liability basis . it would have said so more expressly," Justice Saylor wrote.

Justice Christine Donohue filed a concurring and dissenting opinion joined by Justice Kevin Dougherty that said the majority's interpretation of the law "is overly restrictive and not faithful to the actual language. …

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