To close out 2015, the Pennsylvania Supreme Court issued several opinions last week, including one that may potentially impact how parties challenge penalties assessed by the Pennsylvania Department of Environmental Protection (“DEP”) for violation of state environmental laws.  The case, EQT Production Co. v. Dept. of Envt’l Prot., No. J-67-2015 (Dec. 29, 2015), involves a challenge by EQT, a natural gas fracking operator, to civil penalties levied by DEP for contamination caused by a leaking fracking water impoundment.  EQT had already commenced a formal cleanup under Pennsylvania’s “Act 2” voluntary remediation program when DEP issued a civil penalty settlement demand under Pennsylvania’s Clean Streams Law for over $1.27 million, $900,000 of which was tied to ongoing violations.  DEP took the position that each day the contamination remained in the soil and/or entered groundwater or surface water constituted a continuing violation subject to additional penalties.  EQT disagreed and argued that under the Clean Streams Law, penalties could not exceed those that accrued during the time that contamination was actually being discharged into the environment.  The operator also argued that the Act 2 program governed their remediation efforts to address the contamination that remained at the site.   Read More »

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In BASF v. Township of Toms River, No. 002155-2011 (N.J. Tax Court Dec. 5, 2013), the Court was asked to decide, in advance of trial, the proper methodology for determining the assessed value of a large tract of land that had been designated as a Superfund Site, but which contained large portions of uncontaminated and developable land.  While the Township sought to discount the value of only the polluted areas of the property, the owner contended that the pollution discount must be applied to the entire parcel.  And that is exactly how the Court saw it. Read More »

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