Commonwealth Court Monday issued a decision upholding a $1.1 million penalty against EQT drilling for leaks from a 6 million gallon drilling wastewater impoundment in Tioga County in 2012 that contaminated 35 million gallons of groundwater.
The Court specifically rejected EQT’s argument that a PA Supreme Court ruling in March of this year vacating an earlier $4.5 million DEP penalty against EQT for the same site for the same leaks was not supported by the state Clean Streams Law.
Both Court decisions revolve around the calculation of penalties by DEP and whether a provision allowing the agency to consider each day a separate offense in developing a penalty was supported by the facts in the case and the Clean Streams Law.
The PA Supreme Court ruled in March only the first day of an illegal discharge into surface or groundwaters of the Commonwealth should be considered a violation of the Clean Streams law-- the water-to-water theory basis for the $4.5 million penalty.
In Monday’s Commonwealth Court decision, the issue involved migration of contaminants through soil into ground or surface water-- soil to water theory basis for the $1.1 million penalty.
Commonwealth Court held there was “ample evidence” in the record to support the continuous leaking of contaminants from the soil into water causing individual waters harm, noting the leaks polluted 35 million gallons of groundwater, two High Quality Streams and an Exceptional Value wetland.
The Court also said, “...the fact that EQT was still cleaning up the contamination four years after discovering the leaks demonstrates that the contamination was “persistent and prolonged.”
In summing up its decision, the Court said, “The [Environmental Hearing] Board’s determination that contaminated water continued to infiltrate the groundwater beneath the S Pit on a daily basis after June 15, 2012 (the date by which EQT had completely emptied the impoundment, pressure washed it, and patched the holes in the liner) is supported by substantial evidence of record.
“The Board’s determination that EQT acted recklessly with respect to the design and construction of the S Pit, its investigation of the release(s), and its response to the release(s) is also supported by substantial evidence of record.
“Finally, EQT’s contention that the Board violated this Court’s [March] decision in EQT III by concluding that EQT violated Sections 307 and 401 of The Clean Streams Law is without merit.”
Click Here for a copy of the Commonwealth Court decision.
(Photo: Leaking Tioga County drill site, DEP.)
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