Thursday, May 11, 2017

Clean Air Council Files Brief Supporting State’s Basic Authority To Penalize Environmental Violators

The Clean Air Council filed a brief in the PA Supreme Court Wednesday that seeks to hold environmental violators accountable for their actions, and to ensure that Pennsylvania's waters are protected to the fullest extent possible under the state's Clean Streams Law.
The Council's brief supports the Department of Environmental Protection's authority to penalize drilling company EQT for its spill of fracking wastewater in 2012, and for any subsequent flow of industrial waste into Pennsylvania's waters.
The evidence suggests that industrial waste has entered into the waters, killing fish and vegetation.  
Commonwealth Court (the lower court) ruled that EQT could only be penalized for the few days when its industrial waste first leaked from its facility, rather than for the entire time when its waste continued to flow into the waters of the Commonwealth.  
The Council believes that the Commonwealth Court's ruling undermines the deterrent effect that the Clean Streams Law is supposed to have on future polluters.
“The Clean Streams Law is the state's bedrock clean water law, and the DEP must have the full authority to penalize polluters like EQT,” said Joseph Otis Minott, Esq., Executive Director and Chief Counsel, Clean Air Council. “Without the full deterrent effect of the penalties for continuing violations under the law, polluters will not change their actions and Pennsylvania's waters will continue to be contaminated.  The Council's brief urges the Supreme Court to issue a decision that protects our waters, which are essential for healthy communities, tourism, fishing, recreation, and industries that rely on clean water."
As the Council argued in its brief, the state's Clean Streams Law is meant to protect and restore to a clean, unpolluted condition every stream in Pennsylvania - in accordance with the values articulated in the Environmental Rights Amendment, which protects the people’s right to pure water.  
The Clean Streams Law clearly states that polluters like EQT should be penalized for each day that the DEP can prove that the company continued to permit its pollutants to flow into any waters of the Commonwealth.
The brief was filed in EQT Production Company v. Department of Environmental Protection, No. 6 MAP 2017.  
While the Clean Air Council is not a party in the case, it filed the brief as an amicus curiae, meaning “friend of the court."
Click Here for a copy of the brief.
Questions should be directed to Christopher Ahlers, Clean Air Council, by sending email to: or call 215-567-4004, x 125.
Potential Impact
If DEP loses this case, it has major, potential ramifications for the way penalties are calculated in almost all the state’s environmental programs.
The case hinges in part on language in the Clean Streams Law saying "each day of continued violation... [is] a separate offense” which covers penalties for water quality violations in all environmental programs, including mining, waste disposal in addition to oil and gas.
If EQT wins this case, penalties imposed by DEP in these other programs could be vulnerable to a similar challenge.
In October of 2014, DEP filed a complaint with the Environmental Hearing Board requesting a $4.5 million civil penalty from EQT Production Company of Washington, Pa., for a major pollution incident in 2012 at the company’s Phoenix Pad S location in Duncan Township, Tioga County.
When EQT originally proposed the impoundment in its earth disturbance permit, the company stated it would be used to store fresh water only. However, after construction was complete in late 2011, the company decided to use the impoundment to store flowback water from Marcellus drilling operations to be used for fracking.
This unauthorized progression compromised environmental protection, as no monitoring wells or leak detection were required to be installed around the impoundment based on its initial stated intended use as a freshwater impoundment.
EQT ultimately proposed to construct a centralized waste impoundment adjacent to the Pad S impoundment and installed monitoring wells to establish baseline water quality in the area.
A sampling event conducted on April 30, 2012 revealed elevated levels of chlorides and other parameters in two of the monitoring wells in the vicinity of the existing Pad S impoundment.
During the follow-up investigation of a reported flowback release from a transfer line on May 9, 2012, DEP staff identified two high conductivity seeps near the Pad S impoundment that were unrelated to the reported release. EQT continued to add fluid to the impoundment.
On May 30, 2012, after detecting high conductivity in a third monitoring well for the first time and in a nearby spring, EQT reported to the department that the impoundment was leaking.
Impacts were ultimately documented in Rock Run, a high quality stream, an unnamed tributary to Rock Run, and various groundwater seeps and springs. Trees and shrubs along the discharge flow path also were severely impacted.
EQT demonstrated a lack of cooperation by adding more flowback water to the impoundment even after becoming aware of the elevated chlorides in the nearby monitoring wells. A DEP inspection done in June 2012 after the impoundment was emptied verified 75 to 100 holes in the liner as estimated by EQT. EQT later revised this estimate to be over 200 holes.
An aerial inspection of the impoundment area conducted by DEP in August 2012 documented significant areas of stressed vegetation around the well pad in all directions.
EQT eventually removed the liner and excavated contaminated soil but did not conclude this work until July 1, 2013. The exact amount of flowback that leaked from the impoundment is unknown, but the department believes it was significant.
Monitoring of surface waters and the impacted spring by EQT’s consultant has shown contamination is present at high enough levels that this water is still being collected and transported offsite for proper treatment and disposal.
The department incurred over $112,296 in costs and expenses as a result of its investigation, which is included as part of the proposed penalty.
A copy of DEP’s original complaint is available online.  A copy of the associated exhibits is also available.
EQT Drilling Company Files Counter-Complaint Challenging Clean Streams Law

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