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The Commonwealth Court has refused to toss out a $1.1 million civil penalty assessed against natural gas producer EQT for wastewater contamination, finding the Pennsylvania Department of Environmental Protection presented “substantial evidence” the company “acted recklessly” and that the contamination continued even after remediation efforts were made.

In a published Sept. 10 decision, the court en banc unanimously upheld an order by the Pennsylvania Environmental Hearing Board assessing the penalty against EQT for violations of the Clean Streams Law and a related regulation.

The DEP filed a complaint against EQT in October 2014 alleging wastewater had leaked through the damaged liner of one of the company’s impoundments, known as the “S Pit,” in Tioga County.

“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,” Judge P. Kevin Brobson wrote for the court. “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.”

Brobson was joined by President Judge Mary Hannah Leavitt and Judges Renee Cohn Jubelirer, Robert Simpson, Patricia McCullough, Anne Covey and Christine Fizzano Cannon.

EQT sought to refute the findings of the DEP’s expert hydrogeologist Randy Farmerie that there were daily releases of contaminated wastewater into the groundwater from the S Pit. The company pointed to the state Supreme Court’s ruling from earlier this year in EQT Production v. Department of Environmental Protection (referenced as EQT IV in Brobson’s opinion), in which the justices held that the continued presence of pollutants in water does not itself constitute a violation of the Clean Streams Law.

While EQT argued Farmerie based his opinion solely on the continued presence of pollutants in the groundwater, Brobson said that was “but one factor Mr. Farmerie considered.”

“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,” Brobson said.

EQT also challenged the board’s finding of recklessness, but again Brobson said the finding was supported by the evidence.

“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,” Brobson said.

Brobson also found “ample evidence” to support the board’s finding that the wastewater discharges from EQT’s S Pit caused “‘severe’” damage to state waters.

“The leaks polluted two high quality streams and an exceptional value wetland,” Brobson said, referencing the DEP’s water quality designations of the affected bodies of water. ”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. 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.’”

A DEP spokesman said in an email that the agency “is pleased with the Commonwealth Court opinion. It accurately reflects the facts of the case and provides sound case law.”

EQT was represented by Kevin Garber and Jean Mosites of Babst, Calland, Clements & Zomnir.

A spokeswoman for EQT said in an email that the company “is disappointed in the decision. We will be reviewing the opinion to determine next steps.”

(Copies of the 39-page opinion in EQT Production v. Department of Environmental Protection, PICS No. 18-1113, are available at http://at.law.com/PICS.)

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