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Will Gas Drilling Company Overturn The Way DEP Has Calculated Penalties For Nearly 40 Years? We’ll See

Sometime after June 12 the PA Supreme Court will schedule a hearing on one of the most important environmental cases in recent decades-- will EQT drilling be successful in overturning the way the Department of Environmental Protection has calculated penalties for nearly 40 years.

And will it overturn the definition of what it means to discharge pollutants to the waters of the Commonwealth since the 1973 decision by the PA Supreme Court in Commonwealth v. Harmar Coal.

At stake is not only the $4.5 million fine DEP levied against EQT in 2014 for leaks from a 6 million gallon drilling wastewater impoundment in Tioga County, but the way penalties for violating the Clean Streams Law and almost every other major state environmental protection law are calculated.

This week DEP filed its brief on the case with the Court. DEP appealed the case to the PA Supreme Court after Commonwealth Court ruled in favor of EQT.

Also filing friend of the court briefs to support DEP were the Fish and Boat Commission, Clean Air Council, nearly 100 environmental groups, individuals, business people and local officials, the Chesapeake Bay Foundation and PennFuture. Copies of these briefs are available online--

-- Clean Air Council Brief Supporting DEP

-- Brief By Nearly 100 Groups Supporting DEP

-- Chesapeake Bay Foundation Supporting DEP

-- Fish and Boat Commission Supporting DEP

-- DEP Brief in EQT Drilling Leak/Spill Case - Appendix A, Appendix B, Appendix C, -- Appendix D, Appendix E, Appendix F

As described by the Clean Air Council 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.

DEP stated in legal filings that this was the worst leak that the agency’s oil and gas program had ever seen, polluting a “High Quality” stream, an “Exceptional Value” wetland, and causing an expansive area of groundwater contamination.

EQT, itself, documented the fact its impoundment had 200 holes in its liner through which drilling wastewater leaked.

But the case hinges in part on that language in the Clean Streams Law which says "each day of continued violation... [is] a separate offense.”

Commonwealth 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 Clean Air Council and other groups believe 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."

“We believe that Pennsylvania’s Clean Streams Law is as crystal clear as the waterways we’re working to protect by filing this amicus brief,” noted Attorney Steve Harvey who wrote the amicus brief on a pro-bono basis for the nearly 100 groups. “Section 301 explicitly states that polluters can’t discharge illegally, nor after the discharge can they permit the pollution to flow or continue to flow into any of the waters of the Commonwealth.”

In the brief filed by the nearly 100 groups, it noted “if a polluter discharges 10,000 (or ten million) gallons of highly toxic chemicals on a single cay, and then stopped the discharge the same day, the polluter could be liable for at most $10,000 in civil penalties, with no penalty for failing to remediate, even though the toxic chemicals remained in the soil and continued to leak into and foul the groundwater. After that, Appellee [EQT] would have no liability for civil penalties, regardless of the amount of waste discharged, the toxicity, the proximity to water resources, or the extent of environmental harm.”

The brief filed by the Fish and Boat Commission again pointed out the interpretation EQT would like the Court to accept would lead to an “absurd and unreasonable result,” and used a real life incident.

The Commission said a 2006 accident where 31 rail cars derailed in McKean County spilling sodium hydroxide (lye) in nearby creeks. The spill traveled 30 miles downstream impacting aquatic life and vegetation.

Under EQT’s interpretation the penalties for that incident would only come to a single violation of $10,000, instead of the $7.5 million collected by DEP and the Commission.

The Chesapeake Bay Foundation brief made many of the same arguments and concluded, “When a company like EQT makes the knowing and willful decision to place contaminants in such as way that they can be released into the environment and cause harm far from the initial location of placement, it runs the risk of being penalized for the full extent of the harm. That is what the Clean Streams Law requires.”

The briefs were filed in EQT Production Company v. Department of Environmental Protection, No. 6 MAP 2017.

Broader Implications

If DEP loses this case, it has major, potential ramifications for the way penalties are calculated in almost all the state’s environmental programs.

Each of Pennsylvania’s major environmental protection laws has similar language, including the Municipal Waste Planning, Recycling and Waste Reduction Act, Solid Waste Management Act, Hazardous Sites Cleanup Act, Low-Level Radioactive Waste Disposal Act, Radiation Protection Act, Air Pollution Control Act, Dam Safety and Encroachments Act, Safe Drinking Water Act, Storage Tank and Spill Prevention Act, Land Recycling and Environmental Remediation Standards Act, Environmental Laboratory Accreditation Act and more.

If EQT wins this case, penalties imposed by DEP in these other programs could be vulnerable to a similar challenge.

Background On EQT Drilling Site Pollution

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.

Copies Of Briefs Compiled By PA Environment Digest

Clean Air Council Brief Supporting DEP

Brief By Nearly 100 Groups Supporting DEP

Chesapeake Bay Foundation Supporting DEP

Fish and Boat Commission Supporting DEP

DEP Brief in EQT Drilling Leak/Spill Case - Appendix A, Appendix B, Appendix C, Appendix D, Appendix E, Appendix F

NewsClip:

Legere: DEP, 100 Supporters, Urge High Court To Reverse Limits On Pollution Fines

Prior NewsClips:

EQT Wins Court Case Against DEP For $4.5 Million Wastewater Leak Fine