On October 7, 2014, the Pennsylvania Department of Environmental
Protection ("DEP") filed a complaint against a Marcellus
operator with the Pennsylvania Environmental Hearing Board
("the Board"), alleging that the operator had violated
Pennsylvania's Clean Streams laws. Prior to the
complaint, the operator had filed a declaratory judgment action in
Pennsylvania state court. In the declaratory judgment action,
the operator sought to establish the number of days that alleged
violations occurred. The operator alleged that an offer of
settlement by the DEP, which the operator said miscalculated the
number of days, constituted sufficient grounds to find that a
controversy existed such that a declaratory judgment action was
In response to the DEP's October 7 complaint, the operator
filed a motion to stay the administrative proceedings relating to
the complaint. The operator argued that resolving parts of
the dispute before the Board will be a waste of time because any
finding will be appealed to the court in which the declaratory
judgment action is pending. In response, the DEP noted that
it has filed a motion to dismiss the operator's declaratory
judgment action on the grounds that the operator had failed to
exhaust administrative remedies and was simply forum
On October 28, 2014, the Board denied the operator's motion to
stay. The Board said that the "case is precisely the
sort of case that is the raison d'être for the
[Board]," and noted that a stay of Board proceedings is
"an extraordinary measure that should only be granted for
compelling reasons." The Board then opined that there
was "significant value and efficiency in allowing . . .
discovery [in the Board proceedings] because that factual
development will eventually be needed one way or the
other." Ultimately, the Board was skeptical that that
motion to stay was anything other than a dilatory tactic and
refused to grant a stay that, in the Board's opinion, would
have little benefit to the administration of justice.
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