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 Law1and a related regulation. The violations 

stemmed from the release of wastewater2through 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.
2

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.
3

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.
4

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 
5

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 
6

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 
7

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:
8

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 
9

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 
10

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 
11

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.
12

DEP also sought penalties for EQT’s violations of Sections 301,5

307(a),6 401,7and 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.
13

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.
14

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 
15

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 
16

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.
17

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.
18

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 
19

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.
20

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 
21

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.
22

(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) 
23

“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.
24

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.
25

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, 
26

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 
27

§ 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.
28

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 
29

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 
30

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.
31

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 
32

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
33

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 
34

(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 
35

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).
36

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 
37

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.
38

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
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

EQT Production Company, :

Petitioner :

:

v. : No. 844 C.D. 2017

:

Department of Environmental :

Protection, :

Respondent :

O R D E R

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