Energy companies argue DEP incorrectly calculated pollution fines

Two energy firms recently hit with hefty fines from the Pennsylvania Department of Environmental Protection for violations are arguing that the department didn’t calculate fines correctly.

In two different legal cases, Pittsburgh-based EQT Corp. and Philadelphia-based Sunoco Logistics Partners are challenging the DEP’s interpretation of the Clean Streams Law, according to a Pittsburgh Post-Gazette article.

The crux of the issue is whether violations end when a leak is stopped or whether they continue for as long as the pollution goes into state waters.

The DEP wants $2.3 million from Sunoco for a 12,000 gallon gasoline spill from a pipeline in Murrysville (in Westmoreland County) in 2008. Some of the gasoline continued to leak into Turtle Creek “for days, weeks and months,” regulators said in court documents, according to the article.

The department recently fined EQT $4.5 million for letting wastewater from hydraulic fracturing leak from holes in the liner of a 6 million gallon impoundment (commonly called fracking pits or ponds) in Tioga County beginning in 2012.

From the Post-Gazette:

In both cases, DEP counted more than 100 days when the companies allowed lingering contamination to migrate into commonwealth waters. The Clean Streams Law sets a maximum penalty of $10,000 per day for each violation. The proposed fines add up all of those days.

The companies argue that they should be fined only for the days when they actively released pollution from their facilities. For Sunoco Logistics, the release lasted less than a day. For EQT, it lasted, at most, 12 days between when the leak was first reported and when the impoundment was emptied of sludge and fluids.

George Jugovic, Jr., PennFuture’s chief counsel and a former attorney and regional director for the DEP, told the Post-Gazette that if the courts side with the companies, it would significantly change the longstanding way the DEP has calculated fines, which could cut back maximum penalties companies would receive for Clean Stream Law violations.

From the story:

The companies argue that the department’s “continuing violation” theory is not supported by any judicial precedent. DEP’s attorney countered during oral arguments that the issue has not come up very often in the hearing board because companies rarely have had the “temerity” to raise it.

Mr. Jugovic agreed, but he said the state’s invigorated oil and gas industry is challenging aspects of Pennsylvania environmental law that other industries have accepted as settled.

Reach Natasha Khan at 412-315-0261 or nkhan@publicsource.org. Follow her on Twitter @khantasha.