Is More Pre-Enforcement Review of PADEP Penalty Proposals Now Available?
Just days before the New Year, the Pennsylvania Supreme Court ruled that a private party could initiate a declaratory judgment action in the Pennsylvania Commonwealth Court to challenge a penalty assessment proposed by PADEP. EQT Production Co. filed a lawsuit to challenge PADEP’s interpretation of the Clean Streams Law, which PADEP argued allowed it to recover $10,000 for each day that residual contamination caused by a leaking fracking water impoundment remained in the ground – even though PADEP had not yet imposed the proposed penalty on EQT. In the normal course, a party is required to wait until PADEP actually levies a penalty or takes another enforcement action before that party can challenge the action before the Environmental Hearing Board, since administrative appellate rights are limited to appeals of “final agency actions.” The EQT Production case has added a wrinkle to the standard procedure for challenging administrative actions in Pennsylvania, and provides a potential new avenue for legal challenges to PADEP’s proposed actions. The decision may also influence how the Department presents proposed settlements to members of the regulated community moving forward. A complete summary of the case can be found on our litigation blog.