IN THE COMMONWEALTH COURT OF PENNSYLVANIA
EQT Production Company, :
Petitioner :
:
v. : No. 844 C.D. 2017
: Argued: May 9, 2018
Department of Environmental :
Protection, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION
BY JUDGE BROBSON FILED: September 10, 2018
By Adjudication and Order (Adjudication) issued May 26, 2017, the
Commonwealth of Pennsylvania Environmental Hearing Board (Board) assessed
Petitioner EQT Production Company (EQT) a civil penalty of $1,137,295.76 for
violations of The Clean Streams Law1 and a related regulation. The violations
stemmed from the release of wastewater2 through the damaged liner of an
impoundment, also known as the “S Pit,” in Tioga County, Pennsylvania, which
EQT used as part of fracking operations for an unconventional gas well site known
1
Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. §§ 691.1-.1001.
2
Throughout the record, the parties use interchangeable terms to refer to the actual liquid
that leaked from the liner—e.g., brine, impaired water, produced fluid, flowback, etc.
as “Pad S.” The wastewater infiltrated the ground beneath the impoundment and
ultimately polluted groundwater, seeps and springs, and a stream in the vicinity.
None of this is in dispute.
On appeal, EQT challenges the amount of the civil penalty.3 The Clean
Streams Law provides for a civil penalty of up to $10,000 per day, per violation:
(a) In addition to proceeding under any other
remedy available at law or in equity for a violation of a
provision of this act, rule, regulation, order of the
department, or a condition of any permit issued pursuant
to this act, the department, after hearing, may assess a civil
penalty upon a person or municipality for such violation.
Such a penalty may be assessed whether or not the
violation was wilful. The civil penalty so assessed shall
not exceed ten thousand dollars ($10,000) per day for each
violation. In determining the amount of the civil penalty
the department shall consider the wilfullness [sic] of the
violation, damage or injury to the waters of the
Commonwealth or their uses, cost of restoration, and other
relevant factors.
Section 605(a) of The Clean Streams Law, 35 P.S. § 691.605(a). For the reasons set
forth below, we affirm the Board’s civil penalty assessment.
I. BACKGROUND
DEP filed its complaint for civil penalties against EQT with the Board
on October 7, 2014, alleging that EQT violated The Clean Streams Law through the
unpermitted release of wastewater from the impoundment. DEP sought a civil
penalty in excess of $4.5 million. Following completion of discovery and the filing
3
Respondent the Pennsylvania Department of Environmental Protection (DEP) also filed
a petition for review with this Court (docketed at 852 C.D. 2017), challenging aspects of the
Board’s civil penalty calculation and asking the Court to remand the matter to the Board for an
upward recalculation of the civil penalty. By Order dated May 7, 2018, acting on a request by
DEP to withdraw its petition for review, the Court marked DEP’s appeal closed.
2
of prehearing motions, the Board held a hearing on the merits of DEP’s complaint
over a period of ten days from July 25 to August 5, 2016. The resulting Adjudication
is lengthy and detailed, with 270 separately-numbered findings of fact, nearly 50
pages of discussion/analysis, and 24 separately-numbered conclusions of law.4
In calculating the penalty, the Board noted that Section 605(a) of The
Clean Streams Law requires that it consider the willfulness of the “violation, damage
or injury to the waters of the Commonwealth or their uses, cost of restoration, and
other relevant factors.” (Adjudication at 70.) Included among other relevant factors
that the Board has considered are the cost savings that the violator reaped by
engaging in the unlawful activity, the size of the facility in question, the volume of
the discharge, deterrence, and the costs incurred by DEP. (Id.) The Board then
noted several factors relative to the pollution from the impoundment. First, the
Board noted that the “release did not adversely affect any public or private drinking
water supplies.” (Id. at 70-71.) Moreover, the Board observed that the record was
inadequate to support a finding that the “release had an actual adverse effect on
aquatic life.” (Id. at 71.) The Board also noted that while the “release caused some
adverse impacts to vegetation” in the vicinity of the site, it did not factor that damage
into its calculation. (Id. at 72.) It also did not consider any damage to soil. (Id.)
The Board also refused to assess any penalties for other violations at the Pad S site,
focusing its inquiry solely on the damage caused by the failure of the liner in the
impoundment. (Id.)
Turning first to the issue of cost savings, the Board noted that, subject
to the statutory maximum amount, a civil penalty should be no less than the amount
4
We note that the Board’s decision was not unanimous. Judge Steven C. Beckman
authored a minority opinion, concurring in part and dissenting in part.
3
of cost savings that the violator enjoyed by engaging in the unlawful activity. Noting
limited evidence in the record on the question, however, the Board ultimately
concluded that the amount of the penalty that it was imposing “is likely in excess of
EQT’s cost savings.” (Id. at 73.) The Board then held that DEP was entitled to
recoup its documented costs of $112,295.76, which the Board would include in
EQT’s civil penalty. (Id.)
The Board then considered the extent of damage to the waters of the
Commonwealth, one of the criteria expressly set forth in Section 605(a) of The Clean
Streams Law. It again noted its finding that the release from the impoundment did
not harm public or private water supplies. It also noted as a mitigating factor that
the constituents of the wastewater (e.g., barium, lithium, strontium, chloride) occur
naturally in the waters of the Commonwealth, though not at the levels released from
the impoundment. Nonetheless, the Board noted that the high concentrations “have
for the most part declined over time.” (Id. at 73.) The Board also noted that the
release from the impoundment caused limited contamination to Rock Run, a Class
A Wild Trout and High Quality stream located within approximately 1,500 feet of
the impoundment. (Id. at 73 and Findings of Fact (FF) ## 11, 12.) The Board,
however, continued:
[C]leanup was still ongoing at the time of our hearing four
years after the leak was discovered, which shows that
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
the 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. [DEP] witnesses
testified that it caused the largest aerial extent of
contamination in the history of the program and affected
4
Exceptional Value wetlands. Thirty-five million gallons
of contaminated water were collected at the time of the
hearing. [DEP’s] characterization of the damage as severe
is supported by the record.
(Id. at 73-74 (emphasis in original).)
The Board noted further that the damage to the waters of the
Commonwealth were largely caused by releases from the impoundment that
occurred prior to the end of June 2012, which corresponds to the period of time by
which EQT had drained the impoundment and patched the holes in the liner: “We
have reduced the amount of the daily penalty in part to reflect the fact that new
releases after that time would have continued to shrink such that, by
September 27, [2012,] they would have been quite limited.” (Id. at 74.) According
to the Board’s findings of fact, September 27, 2012, is the date by which EQT had
fully removed the damaged liner from the impoundment, excavated contaminated
soil, and installed a temporary liner. (Id. FF ## 216-21.)
The Board then considered the willfulness of the violations, citing to its
precedent for the following standard:
“An intentional or deliberate violation of the law
constitutes the highest degree of willfulness and is
characterized by a conscious choice on the part of the
violator to engage in certain conduct with knowledge that
a violation will result. Recklessness is demonstrated by a
conscious disregard of the fact that one’s conduct may
result in a violation of the law. Negligent conduct is
conduct which results in a violation which reasonably
could have been foreseen and prevented through the
exercise of reasonable care.”
(Id. at 74 (quoting Dep’t of Envtl. Prot. v. Weiszer, 2011 EHB 358).) Although the
Board rejected DEP’s claim that EQT acted recklessly by choosing to build the type
of impoundment in question, the Board nonetheless held that the choice, which the
Board characterized as a “high risk endeavor,” required “an enhanced level of
5
attention and care throughout the life of the facility, including removal activity if
things went wrong, as they almost certainly were bound to do.” (Id. at 75.) The
Board explained:
The S Pit presented a significantly greater risk to the
environment than a typical pit used for temporary waste
storage at a conventional well pad. EQT knew that the
multimillion-gallon impoundments being used to store
impaired water were causing a lot of problems throughout
the Commonwealth. EQT’s specific knowledge that the
use it put to its impoundment was risky goes beyond the
generalized knowledge of an industry as a whole . . . . The
impoundments almost always leaked. Nevertheless, EQT
decided to tempt the fates. It built a pit to hold millions of
gallons of impaired water from multiple well pads for long
periods of time with only one liner and with no way to tell
whether the pit was leaking.
(Id. (citation to record omitted).)
Although EQT claimed that it built the impoundment in conformity
with all regulatory design criteria, the Board disagreed, noting specifically the failure
of EQT to install a proper subbase beneath the liner. (Id. at 76.) Looking to the
Board’s findings of fact, EQT should have constructed the subbase of the pit
with 4 inches of clay-like material on the sidewalls and 4 inches of clay-like material
with an additional 2 inches of screening at the bottom. (Id. FF #23.) The Board
found that the subbase of the S Pit was of irregular thickness, but nonetheless
covered the bottom of the pit. (Id.) EQT did not screen the material it used in the
subbase to eliminate rocks. (Id. FF # 28.) The subbase also lacked a low
permeability clay layer. (Id. FF #29.) Although the Board could not conclude that
the “poorly constructed subbase” contributed to the holes in the liner, it also could
not rule it out. Nonetheless, the Board noted that its findings at a minimum rebutted
6
EQT’s claim that it complied with applicable regulations when it installed the S Pit.
(Id. at 76.)
To a lesser extent than the subbase, the Board also faulted EQT’s choice
of liner. The Board acknowledged that EQT complied with “the minimum specified
regulatory criteria regarding thickness and material requirements,” but opined that
EQT nonetheless failed to choose a liner that complied with more general
requirements, accounting for both the intended use and duration of the
impoundment. The Board cited specifically to a DEP regulation, which requires that
all liners have “sufficient strength and thickness to maintain the integrity of the
liner.” 25 Pa. Code § 78.56(a)(4)(i). The same provision requires that a liner be
“resistant to physical . . . failure during . . . use.” Id. In the Board’s view, meeting
minimum regulatory requirements is not an absolute defense to liability, particularly
where a reasonable person would have taken additional precautions under the
circumstances. (Adjudication at 76.) In this case, while the S Pit may have satisfied
minimum design criteria, it failed the broader performance criteria set forth in the
regulation. (Id. at 77.)
The Board then went on to fault EQT with inadequate supervision of
the S Pit, referring specifically to the placement of hoses by EQT and one of its
contractors directly on or near the liner of the impoundment:
EQT and its contractors placed hoses directly on or
near the liner, which EQT knew was a risky practice that
posed a significant threat to the integrity of the
impoundment. EQT conducted minimal oversight and
supervision at the site, perhaps due in part to the fact that
the S Pit was not close to the well pad, and the site as a
whole was located at the far reaches of EQT’s traditional
territory.
(Id. at 77 (citation to record omitted).) The Board also criticized EQT’s response:
7
Having constructed an impoundment with no leak
detection system whatsoever, EQT needed to be extremely
sensitive to any sign of a leak. We view EQT’s initial
response to the danger signs of such a leak to have been
completely unacceptable. Despite the appearance of
multiple seeps immediately downgradient of the
impoundment and nearby monitoring well sampling
results all showing an impact from gas well operations
within yards of a pit filled with millions of gallons of
impaired water, EQT inexplicably dragged its feet. The
uphill impoundment filled with millions of gallons of
impaired water was the only likely source. The pad itself
was some distance away to the south. There was no sign
of any surface spills of a sufficient magnitude to explain
the results. The water was not indicative of mine water
because it had high chlorides and low sulfates. EQT paid
inadequate heed to the alarm bells that were going off.
(Id. at 77-78.) In so doing, the Board expressly rejected as not credible testimony
by an EQT consultant and expert witness, who opined that EQT could have
reasonably believed that the observed seeps downgradient from the impoundment
may have been caused by an unrelated spill of impaired water on the site on
May 8, 2012. (Id. at 78.)
The Board also criticized EQT’s conduct immediately after
April 30, 2012, the date on which EQT discovered anomalous readings in
monitoring wells near the impoundment:
It should be remembered that EQT was actively
fracking its well during this period. Perhaps it was more
concerned with its operation than worrying about signs
that a massive pit which it sorely needed for its operations
might be leaking. Remarkably, EQT continued to add
water to the pit from April 30, 2012, when the first
anomalous field sampling results were detected, until
May 21, 2012.
(Id. at 78.) The Board found that an EQT consultant, James Casselberry, informed
EQT on May 3, 2012, that the “surprising results” were indicative of gas well
8
operations. (Id. FF # 97.) “Almost immediately, EQT personnel and consultants
recognized that the anomalous results could indicate that its impoundment was
leaking.” (Id. FF # 98.) Yet, in determining the proper civil penalty, the Board
opined: “James Casselberry almost singlehandedly worked to deal with what
appeared could be a major developing problem with little obvious support from his
multibillion-dollar client. Even he was told to ‘stand down’ for a relatively extended
period of time at a critical period as the crisis was evolving.” (Id. at 78; see id.
FF ## 158-62.)
In the Board’s assessment, EQT could have and should have done more
once it learned of the anomalous well results. The Board rejected EQT’s claim that
its slow reaction was due to the absence of any “scientific evidence” that the S Pit
was actually leaking:
To have allowed a hazard to unfold in search of scientific
certainty while it was busy fracking was inexcusable. This
is not Monday morning quarterbacking: EQT personnel
and consultants conceded that they knew right away after
the well samples came back that there could be a problem
with the pit. EQT simply did not make addressing the
problem a priority, and it bears repeating, it continued to
fill the pit.
(Id. at 78-79.)
EQT started to empty the impoundment on June 1, 2012, using the
impaired water to frack a new well. EQT did not patch hundreds of holes found in
the liner until June 15, 2012, after pressure washing the liner (with holes in it). (Id.
at 79.) Although EQT emptied the impoundment in relatively short order, the Board
noted that EQT benefitted from that activity by using the contents of the
impoundment to frack another well, all while the impoundment continued to leak
wastewater. (Id.) In the Board’s assessment, EQT could have employed resources
9
to empty the S Pit sooner, but EQT instead made a choice to drain the water through
fracking operations. The Board also emphasized that EQT made the choice to store
the impaired water on the site in the first place, in addition to adding water to the
impoundment after April 30, 2012. (Id. at 79-80.)
In further considering the degree of EQT’s willfulness, the Board
faulted EQT for a lack of communication and cooperation with DEP: “The amount
of work and cajoling that [DEP] was required to do in this case was simply
unacceptable.” (Id. at 80.) The Board also criticized EQT for taking until
September 2012 to close the impoundment temporarily and then failing to reclaim
the site fully until June 2013. Although the Board recognized that some delay could
be attributed to DEP’s slow review of EQT’s remediation reports, the Board clearly
believed that EQT could have and should have acted with more urgency in removing
contaminated material from the site. (Id. at 80-81.) The Board, nonetheless, credited
EQT for its efforts with respect to the long-term remediation of the site: “We have
substantially reduced the penalty that we might otherwise have imposed in
consideration of EQT’s long-term remediation.” (Id. at 81.)
The Board also concluded that the civil penalty against EQT should
include a deterrence component, explaining:
The conduct that needs to be deterred here is not the
use of multimillion gallon single-lined wastewater storage
pits with no leak detection. The conduct that needs to be
deterred is failing to build and operate storage facilities
with great care, and failing to take necessary measures to
prevent them from leaking. Building and operating must
be closely supervised from start to finish, which repeatedly
did not happen here. EQT simply did not exercise enough
oversight, supervision, and control over the construction
and operation of its impoundment. . . .
In pits, an adequate subbase must be installed.
Water should not be added or removed carelessly. If there
10
is evidence of a leak, an operator must act with immediate
dispatch. Among other things, an operator needs to search
out potential avenues of release and, if needed, contain
them immediately. It may be necessary to spend a few
extra dollars for expedited samples. A potentially
compromised pit should not continue to be filled.
Operators must maintain open communication with the
regulatory authorities during critical periods.
(Id. at 82.) In addition, the Board chided EQT for refusing to take responsibility and
for, instead, blaming its contractors for causing the damage and DEP for failing to
either inform EQT that the S Pit may be leaking or directing EQT more vigorously
in how to respond: “EQT’s arguments along these lines reveal a failure to appreciate
that it is EQT, not [DEP], that is responsible for operating its facilities lawfully and
carefully.” (Id. at 83.) On deterrence, the Board concluded:
EQT operates well in excess of 1,000 wells.
In 2015, it transported approximately 2 billion gallons of
water, approximately 400 million gallons of which was
impaired water. At one time it had over 40 pits in
Pennsylvania, 21 of which had storage capacity
of 4.2 million gallons or more. The added deterrence of a
significant penalty is clearly needed here to help ensure
that EQT exercises appropriate care in handling its
impaired water going forward.
(Id. at 84 (citations to record omitted).)
Based on the foregoing, the Board laid out in detail its actual penalty
calculation. First, it assessed a $10,000 penalty for EQT’s violation of 25 Pa. Code
§ 91.34(a), which provides: “Persons engaged in an activity which includes the
impoundment, production, processing, transportation, storage, use, application or
disposal of pollutants shall take necessary measures to prevent the substances from
directly or indirectly reaching waters of this Commonwealth, through accident,
carelessness, maliciousness, hazards of weather or from another cause.” It also, as
noted above, assessed a penalty of $112,295.76, representing DEP’s costs.
11
DEP also sought penalties for EQT’s violations of Sections 301,5
307(a),6 401,7 and 6118 of The Clean Streams Law. Section 301 of The Clean
Streams Law provides:
No person or municipality shall place or permit to
be placed, or discharged or permit to flow, or continue to
discharge or permit to flow, into any of the waters of the
Commonwealth any industrial wastes, except as
hereinafter provided in this act.[9]
(Emphasis added.) Section 307(a) of The Clean Streams Law provides:
No person or municipality shall discharge or permit
the discharge of industrial wastes in any manner, directly
or indirectly, into any of the waters of the Commonwealth
unless such discharge is authorized by the rules and
regulations of [DEP] or such person or municipality has
first obtained a permit from [DEP].
Section 401 of The Clean Streams Law provides:
It shall be unlawful for any person or municipality
to put or place into any of the waters of the
Commonwealth, or allow or permit to be discharged from
property owned or occupied by such person or
municipality into any of the waters of the Commonwealth,
5
35 P.S. § 691.301.
6
35 P.S. § 691.307(a).
7
35 P.S. § 691.401.
8
Added by the Act of October 10, 1980, P.L. 894, 35 P.S. § 691.611.
9
“Industrial waste” is defined to include
any liquid, gaseous, radioactive, solid or other substance, not sewage, resulting
from any manufacturing or industry, or from any establishment, as herein defined,
and mine drainage, refuse, silt, coal mine solids, rock, debris, dirt and clay from
coal mines, coal collieries, breakers or other coal processing operations. “Industrial
waste” shall include all such substances whether or not generally characterized as
waste.
Section 1 of The Clean Streams Law.
12
any substance of any kind or character resulting in
pollution as herein defined. Any such discharge is hereby
declared to be a nuisance.[10]
(Emphasis added.) Section 611 of The Clean Streams Law provides:
It shall be unlawful to fail to comply with any rule
or regulation of [DEP] or to fail to comply with any order
or permit or license of [DEP], to violate any of the
provisions of this act or rules and regulations adopted
hereunder, or any order or permit or license of [DEP], to
cause air or water pollution, or to hinder, obstruct, prevent
or interfere with [DEP] or its personnel in the performance
of any duty hereunder or to violate the provisions of 18 Pa.
C.S. section 4903 (relating to false swearing)
or 4904 (relating to unsworn falsification to authorities).
Any person or municipality engaging in such conduct shall
be subject to the provisions of sections 601, 602 and 605.
The Board concluded that EQT violated each one of these sections. (Id.
Conclusions of Law (COL) ## 20-23.) Rather than assess separate penalties for
violations of each of these sections, however, the Board applied the “merger rule”:
“Under the merger rule, a party cannot be penalized for multiple offenses stemming
10
“Pollution” is defined as follows:
“Pollution” shall be construed to mean contamination of any waters of the
Commonwealth such as will create or is likely to create a nuisance or to render such
waters harmful, detrimental or injurious to public health, safety or welfare, or to
domestic, municipal, commercial, industrial, agricultural, recreational, or other
legitimate beneficial uses, or to livestock, wild animals, birds, fish or other aquatic
life, including but not limited to such contamination by alteration of the physical,
chemical or biological properties of such waters, or change in temperature, taste,
color or odor thereof, or the discharge of any liquid, gaseous, radioactive, solid or
other substances into such waters. [DEP] shall determine when a discharge
constitutes pollution, as herein defined, and shall establish standards whereby and
wherefrom it can be ascertained and determined whether any such discharge does
or does not constitute pollution as herein defined.
Section 1 of The Clean Streams Law.
13
from a single act unless one offense requires proof of a fact not required by the
other.” (Id. at COL # 18.) The Board explained:
As a general principle, a person may be guilty of
violating multiple statutory provisions with one act, but
separate penalties may not be imposed for the overlapping
offenses unless one offense requires proof of a fact not
required by the other. In other words, the overlap must not
be complete. Under the so-called merger rule, the party
can be penalized for one or the other, but not both. EQT’s
unpermitted release of pollutants does not require proof of
facts unique to any one of Sections 301, 307, or 401 of
[T]he Clean Streams Law. Therefore, regardless of
whether EQT violated only Section 301 as it concedes,
or 301, 307, or 401, we choose not to assess a combined
penalty of more than $10,000 per day for EQT’s release.
(Id. at 54-55 (citations omitted) (footnotes omitted); see also id. at 57 (employing
same reasoning in refusing to assess separate penalty for EQT’s violation of
Section 611 of The Clean Streams Law).)
Setting the maximum daily penalty for EQT’s statutory violations at
$10,000, the Board focused on three distinct time periods:
April 30, 2012, when EQT learned of anomalous results from the
monitoring wells near the impoundment, to June 15, 2012, the date by
which EQT had emptied the impoundment of impaired water;
June 16, 2012 to June 25, 2012, the date on which EQT submitted its
first site characterization plan to DEP;
June 26, 2012 to September 27, 2012, the date by which EQT fully
excavated the impoundment, including the contaminated subbase, and
installed a temporary liner.
Although, in the Board’s assessment, the releases of wastewater from the
impoundment continued to infiltrate waters of the Commonwealth after
14
September 27, 2012, the Board did not assess any civil penalty beyond that date. It
explained:
EQT caused severe harm to the waters of the
Commonwealth and that pollution continued from and
including April 30 through September 27[, 2012]. The
severe harm resulted from EQT’s reckless conduct. The
consequences of its reckless conduct extended through
September 27[, 2012]. Active releases from the pit
continued but were greatly diminished as of
June 15, [2012,] although substantial contamination
remained in place and would take years to clean up.
Active new releases after September 27[, 2012,] would
have continued but at a very low level. EQT’s level of
cooperation and attention to the problem increased
steadily throughout the entire period. Although there are
no bright lines, by June 25[, 2012,] when it submitted its
first complete characterization report, and thereafter with
respect to its remedial activities, its level of cooperation
was high.
(Id. at 85.) Based on its analysis, recounted above, the Board imposed the following
penalty structure:
(Id.) This total, in conjunction with the $10,000 penalty imposed for violating 25 Pa.
Code § 91.34 and reimbursement of DEP’s costs, comprise the total $1,137,295.76
15
civil penalty that the Board imposed on EQT for the release of wastewater from
the S Pit.
On appeal, EQT raises four questions with respect to the assessed
penalty. First, EQT asks whether substantial record evidence supports any violations
of The Clean Streams Law, and thus the imposition of any civil penalty, for any or
every day after June 14, 2012. Second, EQT asks whether the Board inappropriately
shifted the burden of proof to EQT to establish when wastewater from the S Pit
ceased entering into the waters of the Commonwealth. Third, EQT asks whether the
Board erred in its consideration of the factors set forth in Section 605(a) of The Clean
Streams Law. Finally, EQT asks whether, in light of this Court’s decision in EQT
Production Company v. Department of Environmental Protection, 153 A.3d 424 (Pa.
Cmwlth. 2017) (EQT III),11 aff’d in part and vacated in part, 181 A.3d 1128
(Pa. 2018), the Board committed legal error in concluding that EQT violated
Sections 307 and 401 of The Clean Streams Law.
II. DISCUSSION
A. Standard of Review
Our appellate review of the Board’s adjudications is limited to
determining whether the Board committed an error of law, violated constitutional
rights, or whether its material findings of fact are supported by substantial evidence.
11
In EQT Production Company v. Department of Environmental Protection, 114 A.3d 438
(Pa. Cmwlth.) (EQT I), rev’d and remanded, 130 A.3d 752 (Pa. 2015), this Court sustained DEP’s
preliminary objections and dismissed EQT’s declaratory judgment action, holding that the Board
could adequately address the issues on which DEP sought declaratory relief when considering and
deciding DEP’s complaint for civil penalties, the very decision now on appeal here. The Supreme
Court, however, reversed and remanded, directing the Court to entertain EQT’s pre-enforcement
challenge to DEP’s interpretation under The Clean Streams Law of EQT’s penalty exposure with
respect to the S Pit. EQT Prod. Co. v. Dep’t of Envtl. Prot., 130 A.3d 752 (Pa. 2015) (EQT II).
EQT III is our decision on the merits of EQT’s declaratory judgment action following remand.
16
2 Pa. C.S. § 704; Kiskadden v. Pa. Dep’t of Envtl. Prot., 149 A.3d 380, 387 (Pa.
Cmwlth. 2016) (en banc), appeal denied, 168 A.3d 1281 (Pa. 2017). On issues of
law, our standard of review is de novo and our scope of review is plenary. Dep’t of
Envtl. Prot. v. Cumberland Coal Res., LP, 102 A.3d 962, 970 (Pa. 2014).
In determining whether substantial evidence of record exists to support
a material factual finding, we view the record in the light most favorable to the
prevailing party below, giving that party the benefit of all reasonable inferences that
can be drawn from the record evidence. Kiskadden, 149 A.3d at 387. Substantial
evidence is such “relevant evidence upon which a reasonable mind could base a
conclusion.” MKP Enters., Inc. v. Underground Storage Tank Indem. Bd., 39 A.3d
570, 579 (Pa. Cmwlth.), appeal denied, 60 A.3d 537 (Pa. 2012). Resolution of
evidentiary conflict, witness credibility, and evidentiary weight are matters
committed to the discretion of the Board. Kiskadden, 149 A.3d at 387. “It is
irrelevant whether the record contains evidence that would support contrary
findings. Our critical inquiry is whether the findings are supported by substantial
evidence.” Id.
As this is an appeal from a penalty assessment, we note further that this
Court may not substitute its judgment for that of the Board. In this regard, we
will uphold a penalty assessed by the Board so long as it reasonably fits the
violations—i.e., it would not “strike at one’s conscience as being unreasonable.”
U.S. Steel Corp. v. Dep’t of Envtl. Res., 300 A.2d 508, 514 (Pa. Cmwlth. 1973) (en
banc); see Pines at W. Penn, LLC v. Dep’t of Envtl. Prot., 24 A.3d 1065, 1070 (Pa.
Cmwlth. 2011), appeal denied, 38 A.3d 827 (Pa. 2012). DEP, as the proponent of a
civil penalty against EQT, bore the burden of proof before the Board. 25 Pa. Code
§ 1021.122; Pines at W. Penn, 24 A.3d at 1070.
17
B. Duration of Violations
EQT contends that although the Board concluded that EQT continued
to violate The Clean Streams Law after it drained and pressure washed the
impoundment, there is no record evidence to support this finding and thus no record
evidence to support assessment of a civil penalty after June 15, 2012. In support,
EQT argues that this Court’s decision in EQT III held that evidence merely of the
presence in the waters of the Commonwealth of constituents of the released
wastewater is inadequate to prove a violation of The Clean Streams Law. Rather,
DEP must show an active daily release into the waters of the Commonwealth in
order to prove a violation. In EQT’s view, DEP failed to meet this burden. EQT
argues instead that the Board inappropriately shifted the burden to EQT to establish
when the wastewater stopped entering the waters of the Commonwealth.
In response, DEP disputes EQT’s claim that the Board found violations
after June 15, 2012, based solely on evidence of the mere presence of pollution in
waters of the Commonwealth. Instead, DEP claims that the Board’s findings relating
to continued violations after June 15, 2012, are supported by “fundamental
hydrologic principles,” the expert report and testimony of DEP’s expert
hydrogeologist Randy Farmerie, the testimony of EQT’s experts James Casselberry
and Larry Roach, and EQT’s water sampling data.
In reply, EQT acknowledges that “it may be difficult to confirm a daily
entry into groundwater in this factual setting,” but similarly contends that DEP is not
entitled to a presumption of daily entry. (EQT Second Br. at 9.) EQT contends that
the record evidence DEP cites, particularly the testimony of Mr. Farmerie, falls well
short of establishing as fact a daily entry. As to Mr. Farmerie’s testimony
specifically, EQT contends that it amounted to speculation, not evidence. EQT also
18
criticizes DEP for citing generally to the record, noting that the record in this matter
is particularly large—thousands of pages. Of the specific record evidence cited by
DEP, EQT attempts to refute each one. EQT stands by its point that the burden
rested with DEP to prove by specific evidence a daily entry of contaminants into the
waters of the Commonwealth—i.e., a violation. Without such evidence in the
record, EQT contends that the Board erred in assessing a daily penalty after
June 15, 2012.
Both parties acknowledge that the pivotal question in this case is the
duration of EQT’s violations of The Clean Streams Law, that being the number of
days contaminants from the impoundment entered into the waters of the
Commonwealth. As noted above, each entry is a violation, and each violation may
be assessed a maximum penalty of $10,000 per day. EQT’s evidentiary challenge
focuses on the period of time after EQT drained, cleaned, and repaired holes in the
impoundment liner (June 15, 2012). On appeal, EQT does not dispute that
contaminants remained in the soil underneath the impoundment liner (including the
impoundment subbase, blast rubble, unconsolidated material, and bedrock)12 for
some period of time after that date. (Adjudication FF ## 199-206.) It claims simply
that there is no evidence that on any day or every day after June 15, 2012, those
contaminants in the soil entered into the groundwater beneath the S Pit.
The Board assessed a civil penalty on each day from June 15, 2012 to
September 27, 2012. To sustain this portion of the penalty, this Court must conclude
that there is substantial record evidence to support the Board’s findings that
12
The Court uses the term soil generally to capture all of the material, including the
subbase, underneath the liner from which DEP contends, and the Board found, releases of
contaminants from the impoundment entered the waters of the Commonwealth after June 15, 2012,
on a daily basis.
19
contaminants from the soil entered into the waters of the Commonwealth,
specifically groundwater under the S Pit, daily during this period. The Board found
that they did in one of two ways. First, the wastewater from the impoundment
saturated the soil, and this contaminated residual moisture in the soil continued to
drain out, even as the water table fell below the zone of contamination. (Id.
FF ## 207-08.) Second, areas of residual moisture as well as areas where the soil
had completely dried out would come into actual contact with previously
uncontaminated groundwater. (Id. FF # 209.) The Board summarized:
[B]etween the slow draining of all of the industrial waste
itself, and new underground water picking up residual
contamination left in the subbase, the contaminants in
EQT’s industrial waste would have been released every
day from areas inside the pit and outside of the
groundwater, and entered into the underground waters of
the Commonwealth below the water table for the first time
at least through September 27, 2012. (T 538-39, 541, 704,
720-22, 727-31, 749, 1361; [DEP] Ex. 433.)
(Id. FF # 216.) Later in the Adjudication, the Board offered a further explanation
for its findings that the contamination from the S Pit continued to enter waters of the
Commonwealth daily from June 15, 2012 forward:
Some of the contaminants entrained in the water in
the subbase were released quickly as much of the water
containing contaminants drained into the underground
waters, but others would have been left behind and would
have slowly been released both as the original industrial
waste continued to drain by gravity, and as new water
came into contact with the subbase by way of precipitation
and the subsurface flow of new underground water and
picked up those contaminants and transported them to
underground waters below the water table for the first
time. ([DEP] Ex. 433.) These pollutants initially actively
entered the waters of the Commonwealth from areas
outside of the waters of the Commonwealth for the first
time over many months, at least through September 2012.
Just as the drip-drops from an interstitial compartment in
20
a vessel or tank result in continuing liability, so do EQT’s
prolonged releases from the subbase of its impoundment.
The parties disagree on the amount, nature, and
consequences of the releases, but no witness for EQT
claimed that there would have been zero new releases of
contaminants, at least until the contaminated subbase was
finally removed on September 27[, 2012]. Liability turns
on the fact, not the amount, of the releases. [DEP] proved
by a preponderance of the evidence, including the credible
testimony of its expert, Randy Farmerie, P.G., that this
occurred.
(Id. at 58-59.)
It is clear that in finding daily violations after June 15, 2012, DEP and,
for purposes of the Adjudication, the Board relied heavily on the expert testimony
of Mr. Farmerie, which EQT dismisses as speculative. Without objection by EQT,
the Board accepted Mr. Farmerie, a 27-year DEP employee, as an expert witness in
the areas of geology, hydrogeology, and hydrology. (Transcript (Tr.) at 567.)
Mr. Farmerie testified that the groundwater underneath the S Pit is part of a larger
hydrologic system: “[A] hydrologic system is just a way of referring to -- you’re
not just looking at groundwater. You’re not just looking at surface water. You’re
looking at the whole system and how they interact.” (Id. at 686-87.)
Asked to explain how the wastewater from the S Pit entered into and
travelled within the system, Mr. Farmerie testified:
[O]nce it escaped from the impoundment through the --
through the holes, it would have infiltrated through the
vadose zone, the unsaturated zone . . . . It would have
entered the groundwater at the water table. Within the
water table, it’s -- the contamination would spread by --
there’s a number of different mechanisms: diffusion,
dispersion.
21
(Id. at 687.) With respect to the continuing presence of contaminants from the
wastewater in the vadose zone (unsaturated zone beneath the S Pit but above the
water table), DEP elicited the following testimony:
Q. . . . [L]et me get back to the vadose zone. Can you
tell us at what rate the contaminants would have moved
through the vadose zone?
A. I can’t put a precise number on that.
Q. Do you believe that there are still some constituents
to this day, some flowback fluid at this time in the vadose
zone under the footprint of the S Pit?
A. Some constituents of flowback fluid, yes.
Q. What makes you say that?
A. I think that’s what the science supports.
Q. What evidence have you seen in this case to support
that conclusion?
A. The -- there’s still a lot of contamination left in -- in
wells in and around the source area that the water table --
there’s enough space above the water table, enough
elevation above the water table, at least at times of the
year, that we could have contaminants left in the vadose
zone.
(Id. at 689.) Mr. Farmerie testified that the depth to groundwater within the footprint
of the impoundment varied seasonally, “from within a few feet of the bedrock to
deeper than that, eight or ten feet, probably, in the dry part of the year.” (Id.
at 690-91.)
Mr. Farmerie testified that although data shows that the level of
contamination of affected surface waters has trended downward over time,
contaminants continue to move within the hydrologic system. (Id. at 700.) In terms
of groundwater impact, Mr. Farmerie testified that fluid from the S Pit entered into
the groundwater from at the latest April 30, 2012 (the documented data of impact)
22
“to date”—meaning, the date of his testimony. (Id. at 700-01.) On
cross-examination, Mr. Farmerie clarified his opinion:
Q. . . . So then is it your testimony that fluid from the
S Pit is entering into groundwater every day since April 30
of 2012 until today, July 28th, 2016?
A. I took [counsel’s] question and perhaps it was
incorrect, but I took [counsel’s] question to mean
constituents of fluid. So I believe that, yes, it is correct
that constituents of the fluids that were in the S Pit
continue to enter groundwater.
Q. Every day?
A. Up to today at much lower rates than they
previously did but I believe that it is still happening.
....
Q. . . . So your conceptual model that you testified to,
if I remember this accurately, is fluid from the S Pit
escaped through the holes in the liner, entered into a
vadose zone, then from there entered the groundwater, the
water table, and from there was either dispersed or moved
by diffusion through this hydrologic unit that you
described; is that accurate?
A. Yes.
(Id. at 720-21.)
EQT’s counsel pressed Mr. Farmerie on his daily release into
groundwater theory, particularly focusing on the frequency the water table might
come into contact with the contaminated soil (vadose zone):
Q. How many days per year does the water table touch
an area where there was produced fluid, where there is
produced fluid constituents remaining in the vadose zone?
A. I cannot answer that.
Q. But your model is that there is a daily release, a
daily entry into of constituents of produced fluid into the
water table from this bedrock vadose zone?
A. That is correct.
23
Q. So does that happen every day?
A. That was my testimony, yes, sir.
Q. So let me ask you the basis for that testimony. Isn’t
it true that you’re drawing an inference that there is a
continuing entry into groundwater of constituents
formerly in the S Pit because those constituents are still
detected in monitoring wells and surface water monitoring
stations?
A. That’s part of the argument, yes, sir.
Q. What’s the other part of it?
A. Contaminant movement is not just limited to the
groundwater table. In my 27 years of experience,
contaminant movement above the water table within the
vadose zone does occur as a continuing process.
Q. You’re saying it moves laterally within the vadose
zone?
A. It can move laterally. It can move vertically.
Q. What evidence does [DEP] have that that’s
occurring here?
A. The direct evidence you did summarize as the
continuing results in the springs, streams, and
groundwater.
(Id. at 728-29.) Questioning on this line continued:
Q. Okay. So if the inference is, . . . if I find constituents
of produced fluid at one of the distant locations, say the
Danzer Seeps, if I find barium or strontium there, you’re
saying that that is evidence of the continuing entry into
from produced fluid in the vadose zone?
A. That’s not what -- you have to look at the whole
system. You can’t just say because it’s at the Danzer
Seeps, and I never said just individually the Danzer Seeps.
You cannot look at just the Danzer Seeps in isolation and
make the conclusion that there’s an ongoing discharge
from the pit that -- and what I represented was you need to
look at the whole hydraulic system, looking at the
groundwater data in conjunction with the data at the seeps
and springs.
24
And that’s both the chemical and flow data, that you
need to consider all of that and looking at just a single
point is a misrepresentation of where I was going.
(Id. at 730-31.)
Asked whether the declining levels of contaminants in groundwater and
surface waters over time could indicate an “attenuation” of entry into the
groundwater dating back to 2012, Mr. Farmerie demurred:
A. Not solely.
Q. Why not solely.
A. It could just as well be that there is less
contamination entering than it was in 2012. The
contaminants entering may be at a lesser concentration;
and, therefore, you have a lesser amount in the
groundwater.
Q. It could be and it may be but do you have evidence
that it is?
A. No direct evidence other than my 27 years of
experience on that contaminant movement.
Q. Sure. It’s substantial experience. I don’t doubt that
for a minute. But in this case your inference is, I find it in
a well; therefore, it must be still coming from the vadose
zone. That’s your working inference.
A. You’ve greatly simplified it as we’ve discussed
because I did look at the entire system, but I see it in the
system. I see it at levels that I believe can support my
conclusion.
(Id. at 736-37.)
The record also includes Mr. Farmerie’s expert report. (Reproduced
Record (R.R.) 3216a-59a; DEP Ex. 433.) In his report, Mr. Farmerie reviews the
characteristics of the S Pit site, specifically in terms of hydrology, geology,
hydrogeology, and groundwater chemistry. He then provides background about
discovery of the pollution at the site, as well as remediation efforts. Specifically,
25
with respect to the soil underneath the impoundment and its impact on groundwater,
the report provides:
When [the S Pit] was subsequently pumped out in
June 2012 numerous holes were reported in the single liner
and documented through photographs. . . . The removal
of the fluid from the S Pit, removed the original source of
contaminants, but the brine which pooled in the
unconsolidated materials under the pit in the unsaturated
zone of bedrock continued to flow into the groundwater
and was discharged to the springs and the surface water.
However, the brine contaminants would have remained in
the unconsolidated material under the pit, in the
unsaturated zone bedrock above the groundwater, being
transported within the groundwater, in the spring
discharges and finally within the surface water (Rock Run
and its tributaries). The brine contaminants in the
unconsolidated material and vadose zone bedrock would
be an ongoing source of contamination. While removal of
the fluid in the pit would reduce the flow of new
contaminants entering into the groundwater by reducing
the hydraulic head driving water through the system,
contaminated fluid would continue to flow into both the
saturated and unsaturated zone at slower rates in the
immediate vicinity of the pit. Contaminated fluid from the
unconsolidated material would continue to flow through
the unsaturated bedrock.
(Id. at 3221a-22a (endnote omitted) (emphasis added).)
Upon our review of the record, we can agree with EQT that there is no
“direct” evidence that contaminants from the S Pit entered into the groundwater
beneath the impoundment every day or any day after June 15, 2012. Although it is
unclear in the context of this case, what such “direct” evidence might look like, DEP
and the Board considered expert testimony in the absence of direct evidence.
Although not bound by the technical rules of evidence, the Board generally adheres
to the Pennsylvania Rules of Evidence in its formal proceedings. See 25 Pa. Code
26
§ 1021.123(a). Under the Pennsylvania Rules of Evidence, expert opinion testimony
is authorized as follows:
A witness who is qualified as an expert by
knowledge, skill, experience, training, or education may
testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other
specialized knowledge is beyond that possessed by the
average layperson;
(b) the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;
and
(c) the expert’s methodology is generally accepted
in the relevant field.
Pa. R.E. 702 (emphasis added). “An opinion is not objectionable just because it
embraces an ultimate issue.” Id. at 704.
In Al Hamilton Contracting Company v. Department of Environmental
Resources, 659 A.2d 31 (Pa. Cmwlth. 1995) (Hamilton), the Board upheld an order
by the then-Department of Environmental Resources (DER), now DEP, requiring a
mine operator to conduct a groundwater study at its operating site. DER contended
that mine drainage at the site degraded a nearby drinking water supply. Before the
Board, DER offered the expert testimony of one of its employee hydrologists
(Barnes). Barnes conducted the investigation into the source of the water supply
contamination. Barnes rendered an opinion on the ultimate issue, concluding that
discharges from the operator’s site was the “most likely” source of the pollution.
Barnes admitted, however, that he could not say conclusively that it was the source
of pollution. Hamilton, 659 A.2d at 34. The Board held that DER made a prima
facie showing of a causal connection between the polluted water supply and the mine
operations.
27
On appeal to this Court, the operator alleged, inter alia, that the Board
erred in admitting Barnes’ expert testimony on the issue of causation. The operator
claimed that Barnes was not sufficiently certain. We observed that while expert
opinion “need not be based on an absolute certainty, an opinion based on mere
possibilities is not competent evidence.” Id. at 36. “To prove causation,” we opined,
“an expert witness must testify with ‘reasonable certainty’ that in his or her
professional opinion the result in question did come from the cause alleged.” Id.
at 37. We held that Barnes’ testimony on causation met this standard:
As to causation, Barnes testified that, within a
reasonable degree of scientific certainty, the Little Beth
Mine Site was the probable cause of the pollutional
condition at the Cowder property. Moreover, when
questioned about the old strip mines to the east of
Cowder’s property (to the north of Little Beth Mine Site),
which was the only other possible cause suggested, Barnes
ruled out this possibility. The old mine sites were ruled
out as a source of the pollution because the mining
was 25 years earlier and should not cause current water
problems, and because the water quality was not as bad in
the eastern tributary hollow which would be between
the 1950’s [sic] mine site and the Cowder property. After
ruling out the only other suggested possible cause of
Cowder’s pollutional problem, Barnes[’] testimony is, in
effect, that Little Beth is the only logical cause of the
pollution. Barnes’ testimony is “reasonably certain” that
Little Beth Mine Site is the cause of the pollution and is
admissible as an expert opinion on causation, even though
his opinion is stated as “the most probable cause[.”] We
find no error in the [Board’s] decision to admit and rely on
the testimony of Barnes.
Id. (citation omitted) (record citations omitted).
Here, on direct examination, Mr. Farmerie testified, to “a reasonable
degree of scientific certainty,” that contaminants from the S Pit remained in the soil
(vadose zone) after June 15, 2012, and entered therefrom into the groundwater on a
28
daily basis after June 15, 2012, and continued to do so as late as the hearing before
the Board. (Tr. at 704.) Mr. Farmerie based his expert opinion on his understanding
of the nature and amount of the release(s) from the S Pit, the hydrologic system
connecting the areas underneath the impoundment liner with surface water and
groundwater, the geology of the site, and EQT’s remediation efforts from
June 15, 2012 forward, as well as data from the monitoring wells and surface water
monitoring stations. Under withering cross-examination by EQT’s counsel, Mr.
Farmerie did not retreat from his ultimate opinion that contaminants in the soil under
the impoundment continued to enter the groundwater on a daily basis during this
period of time. Upon review of the record in the light most favorable to DEP and
affording all deference due to the Board’s determinations with respect to evidentiary
weight and witness credibility, we find no error in the Board’s decision to find and
assess daily violations from June 15, 2012 to September 27, 2012, based in
substantial part on Mr. Farmerie’s testimony and expert report.
We also reject EQT’s related contentions that the Board’s findings and
conclusions of daily releases into the groundwater were based solely on the mere
continued presence of contaminants in the soil, the groundwater, and the
hydrologically connected surface waters. As noted above, the continued presence
of contaminants was but one factor Mr. Farmerie considered in rendering his
opinion.13 We also reject EQT’s claim that the Board improperly shifted the burden
13
EQT relies on this Court’s decision in EQT III, as affirmed in part and vacated in part by
the Pennsylvania Supreme Court in EQT Production Company v. Department of Environmental
Protection, 181 A.3d 1128 (Pa. 2018) (EQT IV). Affirming the principal ruling of this Court in
EQT III, the Supreme Court opined:
The mere presence of a contaminant in a water of the Commonwealth or a
part thereof does not establish a violation of Section 301, 307, or 401 of [T]he Clean
Streams Law, since movement of a contaminant into water is a predicate to
29
to EQT to establish when the wastewater stopped entering the waters of the
Commonwealth. The Board held that DEP met its burden of establishing daily
releases from the soil into the groundwater (violations) for the period of the assessed
civil penalty. Although EQT had the opportunity to rebut DEP’s evidence with
evidence tending to show that no contamination from the soil flowed into the
groundwater after June 15, 2012, the Board did not require EQT to do so.
C. Amount of Penalty
Next, EQT challenges the Board’s consideration of certain factors set
forth in Section 605(a) of The Clean Streams Law in calculating the amount of the
civil penalty. More specifically, EQT challenges 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), claiming that no
record evidence supports the Board’s determination. EQT also challenges the
Board’s determination that the violations caused “severe” damage to the waters of
the Commonwealth.
In determining the appropriate civil penalty amount, the Board must
consider, inter alia, the willfulness of the violation. Section 605(a) of The Clean
Streams Law clearly provides that the Board may assess a civil penalty even in the
absence of a willful violation. Nonetheless, the willfulness of a violation is one of
the factors that the Board must consider. Stambaugh v. Dep’t of Envtl. Prot.,
11 A.3d 30, 36 (Pa. Cmwlth. 2010).
violations. This statement pertaining to the governing legal standard is distinct
from whether and to what extent presence may serve as evidence of movement.
EQT IV, 181 A.3d at 1149 (emphasis added). Our decision here is consonant with this holding.
30
As noted above, the Board considered the degree of willfulness of the
violations in this case and concluded that EQT acted recklessly. In Stambaugh, we
noted that neither willful nor reckless is defined in The Clean Streams Law. As a
result, we construed them according to their common usage:
[W]illfulness has been defined as “[t]he fact or quality of
acting purposely or by design; deliberateness; intention”
and “does not necessarily imply malice, but it involves
more than just knowledge.” The word reckless has been
defined as “the creation of a substantial and unjustifiable
risk of harm to others and . . . a conscious (and sometimes
deliberate) disregard for or indifference to that risk.”
Id. at 37 (quoting BLACK’S LAW DICTIONARY 1737, 1385 (9th ed. 2009)). Upon our
review of the record in the light most favorable to DEP, we conclude that the Board’s
determination that EQT’s violations of The Clean Streams Law were reckless is
supported by the record evidence.
The Board based its determination in part on its finding that EQT was
aware that operating this type of unconventional impoundment was “fraught with
risk.” (Adjudication FF # 60.) The Board noted that “no one aspect of EQT’s
conduct might in isolation have supported a finding of recklessness.” (Id. at 75.)
Nonetheless, “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.” (Id.)
Anchoring the Board’s recklessness determination is the Board’s finding that EQT
knew of dangers and risks associated with impoundments like the S Pit but chose to
proceed with its construction and use anyway. The Board wrote: “EQT knew that
the multimillion-gallon impoundments being used to store impaired water were
causing a lot of problems throughout the Commonwealth . . . The [unconventional]
impoundments almost always leaked.” (Id.) “[H]aving made the decision to build
such a pit,” the Board held, “EQT was knowingly engaging in a high-risk endeavor
31
that called for an enhanced level of attention and care throughout the life of the
facility, including removal activity if things went wrong, as they almost certainly
were bound to do.” (Id.)
As supporting evidence, the Board referenced a letter
dated August 20, 2010—over a year before EQT constructed the S Pit—in which
DEP informed various energy companies, including EQT, of the frequent problems
with unconventional impoundments like the S Pit. (Id. FF ## 51-58; DEP Ex. 258.)
The letter reminded the energy companies of the regulatory requirements governing
these pits and listed numerous past violations by the energy companies, including
EQT. (Id.) In fact, the letter mentioned a prior instance where EQT was forced to
replace another one of its pits due to holes. (Id. FF ## 57-58.) DEP’s inspector
reinforced the high risk nature of these impoundments when EQT contacted him to
notify DEP of the plan to construct the S Pit. (Id. FF # 43; R.R. at 781a-82a.) DEP’s
inspector specifically reminded EQT to construct an adequate subbase. (Id.)
Notably, EQT does not contest any of the Board’s findings of fact pertaining to its
knowledge before constructing the S Pit. The Board found that despite EQT’s prior
experience and awareness of the dangers of these unconventional impoundments,
EQT nonetheless decided to “tempt the fates” by building the S Pit with an
insufficient subbase, an insufficient liner, and no leak detection system. (Id. at 75.)
As part of its recklessness determination the Board also considered
EQT’s response to the field sampling and monitoring well results beginning on
April 30, 2012. The Board wrote: “EQT personnel and consultants conceded that
they knew right away after the well samples came back that there could be a problem
with the pit.” (Id. at 79 and FF # 98.) EQT told one of its consultants, James
Casselberry, to stand down after he informed EQT that natural gas well operations
32
were the likely cause of the monitoring well results. (Id. FF ## 97, 162.) The Board
found that the S Pit was the “only natural gas product feature within the immediate
vicinity of the contaminated wells.” (Id. FF # 104.) Given the indications that the
S Pit was leaking, the Board expressed incredulity that EQT not only failed to empty
the pit with any level of haste, but actually added water to the pit until May 21, 2012,
the date on which EQT first professed that it knew “for certain” that the S Pit was
leaking. (Id. FF # 131.) The Board rejected EQT’s contention that the evidence of
a leak prior to this date was not sufficiently conclusive to warrant action.
Finally, the Board determined EQT was reckless for a period of time
after May 21, 2012, when EQT first acknowledged that the S Pit was leaking, until
two weeks later when EQT, through further fracking operations, completely emptied
the pit of impaired water. (Id. at 79.) The Board determined that EQT exacerbated
its liability by failing to remove timely the contaminated subbase, in part because
EQT intended to “preserve the scene” for purposes of litigation with one of its
contractors, Terra Services. As a result, the impaired liner and subbase continued to
discharge contaminants into the groundwater.
In contesting the Board’s finding of recklessness, EQT likens this case
to Stambaugh. In that case, the owners of a dairy farm, the Stambaughs, appealed
the Board’s assessment of a civil penalty under The Clean Streams Law, where the
owners discharged silage leachate into groundwater in violation of the statute. As
noted above, the Board described the owners’ conduct as both willful and reckless.
Stambaugh, 11 A.3d at 37. Recklessness requires some showing of knowledge or
conscious disregard or risk, whereas willfulness requires that and more. Id. In
Stambaugh, this Court held that DEP’s evidence, testimony of an expert witness
33
(Landis), fell short of establishing the Stambaughs’ knowledge or conscious
disregard of risk:
Landis’ testimony that farmers, in general, know that
silage can cause contamination is not substantial evidence
on which the Board can find that the Stambaughs acted
willfully and recklessly. First, Landis cannot possibly
know what is in the mind and experience of each and every
farmer in Pennsylvania. Second, a statement of what
farmers generally know does not prove what two
individual farmers, i.e., the Stambaughs, actually knew.
Finally, there was no evidence presented that the
Stambaughs knew of the existence of the neighboring
wells or the risk presented to their water quality by the
trench silo. In short, the record lacks evidence to support
a finding that the Stambaughs knew their actions would
cause a risk of pollution and did so in wanton disregard of
that risk.
Id. Accordingly, we vacated and remanded the matter to the Board for recalculation
of the civil penalty.
In Stambaugh, DEP’s expert testified, without any real basis, that the
dairy farmers knew of the risk of their silage trenches. The finding of knowledge in
Stambaugh was supported merely by sweeping testimony of what farmers generally
know and, seemingly, the rejection of George Stambaugh’s testimony without an
explanation. Simply stated, and as explained in greater detail above, the record
before the Board of EQT’s knowledge in this matter is more robust. The result in
Stambaugh was justified by the record in that case. The record in this case, and our
standard of review, supports the Board’s knowledge determination and thus justifies
a different result. EQT’s substantial evidence challenges invite this Court to reweigh
the evidence on which the Board relied and/or to substitute our judgment for that of
the Board’s in assessing a civil penalty. To be certain, EQT sees the evidence in
terms of its investigation and response to the leaks from the S Pit differently. The
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Board, however, rejected EQT’s version of events. We will not reweigh the
evidence or substitute our judgment for that of the Board.
EQT also challenges the Board’s determination that “EQT caused
severe damage to the waters of the Commonwealth.” (See Adjudication FF # 278.)
EQT argues that the only evidence in support of the finding of severe damage is the
geographic spread of contamination and the degradation of a High Quality, Class A
Wild Trout stream and the nearby waters. As noted above, on this point the Board
admonished EQT: “No unpermitted degradation of such a valuable natural resource
is tolerable.” (Id. at 74 (emphasis in original).)
In resolving this challenge by EQT, we are guided by our decision in
Pines at West Penn, wherein this Court affirmed the imposition of penalties on the
operator of a mobile home park. The mobile home park operator received a NPDES
permit14 from DEP to discharge treated sewage into a nearby tributary. The NPDES
permit, however, imposed limitations and required the mobile home park operator
to submit a monthly discharge monitoring report. DEP initiated an action for
violation of The Clean Streams Law when the discharge monitoring reports revealed
discharges in excess of the permit limits.
On appeal, this Court rejected the argument that the penalty was
excessive because the record lacked evidence of harm to the receiving stream. We
reasoned that the receiving stream warranted special attention because of its
classification as a trout stock fishery. We further reasoned that the NPDES permit
14
“NPDES” is the acronym for the National Pollutant Discharge Elimination System,
created in 1972 by the Federal Water Pollution Control Act (commonly known as the Clean Water
Act), 33 U.S.C. §§ 1251-1387, which governs the discharge of pollutants into waters of the United
States. Section 402(b) of the Clean Water Act, 33 U.S.C. § 1342(b), delegates authority to states
to issue NPDES permits for discharges within their borders, upon approval of the state’s permit
program by the federal Environmental Protection Agency. 33 U.S.C. § 1342(b).
35
included a special condition that the receiving stream was seasonally dry and that
the stream would dilute the discharges less during the dry periods of the year.
Nonetheless, the mobile home park discharged sewage in excess of the permit limits
for over two-and-a-half years. Thus, we held that the record in Pines at West Penn
supported the finding of harm to the waters of the Commonwealth.
Similarly, there is ample evidence in the record here to support the
Board’s finding that the leaks from the S Pit resulted in damage to the waters of the
Commonwealth. The Board appropriately considered the classification of the
individual waters harmed and the length of time of the contamination, as this Court
did in Pines at West Penn. The leaks polluted two High Quality Streams and an
Exceptional Value wetland. (Adjudication FF ## 230, 238.) Likewise, as the Board
pointed out in this case, the scope of contamination was massive. The leaks from
the S Pit resulted in the contamination of at least 35 million gallons of groundwater.
(Id. FF # 247.)15 The contamination plume was over 2,000 feet long. Finally, the
fact that EQT was still cleaning up the contamination four years after discovering
the leaks demonstrates that the contamination was “persistent and prolonged.”
(Id. at 73.) Given the classification of the waters affected, the magnitude of the
contamination, and the time of the degradation, we reject EQT’s arguments that the
record lacks evidence of damage to the waters of the Commonwealth.16
15
EQT addresses the 35 million gallons of contaminated groundwater by arguing that it is
not proof of injury under this Court’s decision in Westinghouse Electric Corporation v.
Department of Environmental Protection, 745 A.2d 1277 (Pa. Cmwlth. 2000) (Westinghouse II).
We need not address Westinghouse II in much detail; there is simply no part of that case that stands
for the proposition that the contamination of 35 million gallons of groundwater cannot serve as
evidence of damage to waters of the Commonwealth.
16
To the extent EQT challenges the Board’s use of the word “severe” in characterizing the
extent of damage to the waters of the Commonwealth, we will not quibble with the Board’s
characterization. As noted above, we are prohibited from substituting our judgment for that of the
36
Having rejected EQT’s arguments, we have no reason to conclude that
the penalty that the Board imposed in this matter does not fit the violations. In so
doing, we note the Board’s decision to decrease the daily penalty for the period of
June 16, 2012, to June 25, 2012, and further for the period of June 26, 2012, to
September 27, 2012. Both decreases acknowledged EQT’s increased willingness to
work with DEP and responsiveness to the source of the contamination. The assessed
penalty begins with the maximum daily amount, $10,000, but decreases over time
as EQT became, essentially, less reckless with respect to the violations. While the
Board penalized EQT when it “dragged its feet,” the Board also credited EQT when
the company acted appropriately. This approach seems both reasonable and
compatible with the statutory scheme of The Clean Streams Law.
D. Violations of Sections 307 and 401
In its final issue, EQT asks whether, in light of this Court’s decision in
EQT III, the Board committed legal error in concluding that EQT violated
Sections 307 and 401 of The Clean Streams Law. In EQT IV, however, the
Pennsylvania Supreme Court vacated the portion of our decision in EQT III on which
EQT relies. See EQT IV, 181 A.3d at 1139. Accordingly, EQT cannot prevail on
this issue.
Board, and we must uphold a penalty so long as it reasonably fits the violations. U.S. Steel Corp.,
300 A.2d at 514. Vacating a penalty because we disagree with the exact level of damage to the
waters of the Commonwealth seems to run afoul of that rule and could result in an endless remand
cycle in an effort to correlate perfectly (as opposed to reasonably) adjective to penalty amount.
Moreover, as we describe above, the evidence of a four-year, 35-million-gallon contamination of
groundwater, two specially-protected streams, and an Exceptional Value wetland supports the
Board’s damage determination.
37
III. CONCLUSION
The 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. Upon reading the
Adjudication and considering EQT’s arguments on appeal, we cannot conclude that
the Board’s assessed civil penalty of $1,137,295.76 does not reasonably fit the
violations of The Clean Streams Law in this case. Finally, EQT’s contention that
the Board violated this Court’s decision in EQT III by concluding that EQT violated
Sections 307 and 401 of The Clean Streams Law is without merit. For these reasons,
we affirm the Board’s civil penalty assessment.
P. KEVIN BROBSON, Judge
38
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
EQT Production Company, :
Petitioner :
:
v. : No. 844 C.D. 2017
:
Department of Environmental :
Protection, :
Respondent :
ORDER
AND NOW, this 10th day of September, 2018, the May 26, 2017
Adjudication of the Pennsylvania Environmental Hearing Board is AFFIRMED.
P. KEVIN BROBSON, Judge