Wednesday, May 31, 2017

EHB Issues $1.1 Million Penalty Against EQT Drilling In Controversial Penalty Case

On May 26 the Environmental Hearing Board assessed a penalty of $1,137,295.76 against EQT Drilling for the pollution it caused after a significant amount of waste was released from a leaking 6 million gallon wastewater impoundment in 2012 at the company’s Phoenix Pad S located in Duncan Township, Tioga County.
The penalty is very close to a consent agreement DEP proposed to the company in May 2014 totalling $1,270,871.  That offer was rejected in September 2014 when EQT filed a challenge to the action in Commonwealth Court.
Commonwealth Court issued a ruling on the appeal in January 2017 saying the way DEP calculated the $4.5 million penalty was in error and that it should not based on continuing violations with each day of a release being a separate violation of the law subject to a penalty.
DEP has appealed the ruling to the PA Supreme Court because it overturns the way the agency has calculated penalties for nearly 40 years.
Friend of the court briefs were filed to support DEP by the Fish and Boat Commission, Clean Air Council, nearly 100 environmental groups, individuals, business people and local officials, the Chesapeake Bay Foundation and PennFuture.
In its May 26 penalty adjudication, the EHB said, “The Clean Streams Law does not speak in terms of “insignificant” or “de minimis” releases. It would be a mistake to step onto that slippery slope. Discharge of “any” industrial waste gives rise to liability. The degree of harm associated with the continuing releases goes more to the extent of cleanup required and the amount of the penalty in a civil penalty case rather than the existence of a violation.”
The Board went on to say, “There is no dispute that active releases occurred from April 30 through June 10, 2012. EQT says that active releases of industrial waste originating above its synthetic liner terminated on that day, but the evidence shows that EQT did not patch the known holes in the area of the Terra Services activity until June 15.
“We are not confident that those (and the earlier holes discovered and patched the month prior in May) were the only holes in the liner, but assuming they were, the liner still contained sludge and debris and it was pressure washed with the holes still in it.
“Far more importantly, the evidence does not support EQT’s position that leaks from the impoundment ended when industrial waste was removed from above the synthetic liner. Industrial waste remained below the liner but still within the impoundment at least through September 27, 2012.
“On as late as September 13, actual standing contaminated water was observed to still exist in the impoundment. In addition, a large wet area needed to be cut through to allow equipment into the bottom of the impoundment. The water in those soils would have been contaminated.
The EHB noted, “...cleanup was still ongoing at the time of our hearing four years after the leak was discovered, which shows that the harm caused by multiple contaminants was persistent and prolonged.”
“EQT degraded a High Quality, Class A Wild Trout stream, as well as a tributary, the underground water, and the spring and seeps in the watershed that feed that stream. No unpermitted degradation of such a valuable natural resource is tolerable.
“The release extended a considerable distance, creating a known contamination plume on the order of 2,000 feet across. The Department witnesses testified that it caused the largest aerial extent of contamination in the history of the program and affected Exceptional Value wetlands.
“Thirty-five million gallons of contaminated water were collected at the time of the hearing. The Department’s characterization of the damage as severe is supported by the record.”
The Board also agreed with DEP that EQT drilling engaged in a willful violation of environmental laws and regulations, “We agree with the Department that EQT engaged in a pattern of reckless behavior that culminated in the violations in this case. Although no one aspect of EQT’s conduct might in isolation have supported a finding of recklessness, taken together they evince a conscious disregard of the fact that its conduct could result in a violation of the law and harm to the environment.”
This penalty adjudication is appealable to Commonwealth Court.
Click Here for a copy of the EHB penalty adjudication.  Click Here for the EHB hearing docket in this case.
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