Pa. Appeals Court rules Landowner Loren Kiskadden Can’t Revive Claim That Fracking by Range Resources Contaminated his Water Well, not even with proving that Range withheld radioactive frac tracer data during the legal proceedings

Court: Range not responsible for contamination in Amwell Twp. drinking water by Karen Mansfield, December 8, 2015, Observer-Reporter

A Commonwealth Court panel Monday affirmed a state agency’s ruling that an Amwell Township man failed to prove Range Resources contaminated his drinking water.

The procedural decision means the Commonwealth Court will hear the appeal of Loren Kiskadden, who claims his well water was contaminated by leaks at Range Resources’ Yeager impoundment.

Commonwealth Court Senior Judge J. Wesley Oler Jr. ordered the state Department of Environmental Protection and Range to each file appellate briefs within 30 days. No date has been set for the hearing.

Kiskadden’s attorneys, John and Kendra Smith, said Tuesday they are considering filing an application for reconsideration.

“While the appeal will go forward and Range and the DEP were ordered by the Court to file briefs, we are contemplating making an application for reconsideration, as it is unfortunate that the court found that a trial and a decision made without all of the available evidence on the use of previously undisclosed ‘chemical frac tracers’ was somehow not problematic to my client’s case,” said John Smith.

In June, the Pennsylvania Environmental Hearing Board dismissed an appeal filed by Kiskadden after EHB Chief and Chairman Thomas W. Renwand determined Kiskadden “failed to meet his burden of proving by a preponderance of the evidence that his water well was impacted by gas drilling operations conducted by Range Resources.”

The EHB’s decision reinforced a determination by the DEP in September 2011 that Range’s operations did not contaminate Kiskadden’s well, which is located less than a mile from the Yeager well pad and wastewater impoundment.

In October, Kiskadden’s attorneys filed a motion in Commonwealth Court arguing the gas company failed to reveal the use of radioactive tracers, which chart and analyze the reach of hydraulic fracturing, and letters from the U.S. Agency for Toxic Substances and Disease Registry they said indicated Kiskadden’s water well was contaminated by chemicals found at the drill site.

The Smiths asked the Commonwealth Court to vacate the hearing board decision denying their client’s contamination claim and send the case back to the board for a new hearing.

However, Oler, writing for the court order issued Monday, said Kiskadden did not prove the information he wanted to introduce was new. He also failed to prove the use of tracers and the letters rebutted the EHB’s finding there was no groundwater connection between Kiskadden’s contaminated well and Range’s operation.

The court “cannot conclude that the Board would most likely reverse its determination on remand if it credited petitioner’s additional evidence,” he wrote.

“We appreciate the Commonwealth Court’s order that relies on the thorough analysis of the Environmental Hearing Board, which concluded that the DEP’s determination was correct that Range’s activities did not cause, contribute or impact Mr. Kiskadden’s water supply,” said Matt Pitzarella, Range Resources Director of Corportate Communications and Public Affairs. “The Commonwealth Court’s ruling along with the Environmental Hearing Board’s prior ruling and studies like the U.S. EPA’s multi-year study of drinking water sources, should provide the public with confidence that natural gas development can and is being done safely and that regulatory agencies are diligently overseeing the process.”

Range contends the well contamination was caused by natural contaminants, including runoff from a junkyard. [Emphasis added]

Pa. Landowner Can’t Revive Claim That Fracking Spoiled Well by Hannah Sheehan with additional reporting by Kelly Knaub and Alex Wolf, December 9, 2015, Law360

A Pennsylvania appeals court on Monday declined to reopen a landowner’s case accusing a fracking company of contaminating his well by drilling for natural gas nearby, saying newly discovered evidence would not alter the Pennsylvania Environmental Hearing Board’s June decision to toss the case.

Senior Judge J. Wesley Oler Jr. allowed petitioner Loren Kiskadden’s request to submit to the court record new documents, including an Oct. 30 letter from the U.S. Agency for Toxic Substances and Disease Registry purportedly linking the chemicals spilled at Range Resources Inc.’s drilling site to those found in the landowner’s well, but denied his petition to vacate and remand the case, saying the evidence in fact failed to establish such a link.

“In light of the rebuttable presumption and the board’s reasons for discounting petitioner’s expert’s testimony on the issue of a hydrogeological connection, we cannot conclude that the board would most likely reverse its determination on remand if it credited petitioner’s additional evidence,” Judge Oler said in the memorandum.

Kiskadden has argued that chemicals discovered in his drinking water, including acetone, diesel range organics and numerous heavy metals were also found leaking from the upgradient drill site during the period in question, but the board found his expert’s testimony attempting to link the contamination to Range Resources’ operations failed to show that the company was responsible, according to court documents.

The board, which functions as the judicial body of the state Department of Environmental Protection, said in June that lab results introduced into evidence did not support Kiskadden’s claims. The EHB stated that Kiskadden’s case was hurt by a number of factors including his lack of samples demonstrating the water quality before the company began drilling, and noted that his septic system and well are poorly maintained and located near a salvage yard.

“It’s unfortunate that the appellate court will not allow the trial court to view all of the evidence, especially that of the previously undisclosed use of chemical frac tracers,” Kiskadden’s attorney John M. Smith of Smith Butz LLC said in an email to Law360 Thursday, adding that he plans to request an appeals court panel review Judge Oler’s decision.

Pennsylvania’s DEP fined Range Resources $4.15 million in September 2014 for alleged fluid leak violations at six of its impoundments in Washington County and levied an $8.9 million civil penalty in June, saying the company failed to submit a satisfactory plan to repair a leaking gas well responsible for contaminating private water supplies, a pond and a stream in Lycoming County with methane, iron, aluminum and manganese.

On Monday, the court did not address the DEP’s and Range Resources’ arguments that Kiskadden waived his claims by failing to ask the board to reexamine its decision, saying it was not necessary to consider the other criteria for remand.

… The case is Loren Kiskadden v. Pennsylvania Department of Environmental Protection, case number 1167, in the Commonwealth Court of Pennsylvania. [Emphasis added]

HOW MUCH FRAUD ARE COURTS, REGULATORS, COMPANIES ENGAGING IN TO HIDE FRAC POISONING? Tracers to blame? Range Resources unwillingly confirms fracking directly pollutes drinking water? Damning new information surfaces in kiskadden water well contamination case

Newly discovered evidence in a case filed by an Amwell Township man who claims Range Resources contaminated his drinking water could result in a new trial before the Pennsylvania Environmental Hearing Board.

According to a motion filed Wednesday in Commonwealth Court by attorneys for Loren Kiskadden, the gas company failed to reveal the use of radioactive tracers, which chart and analyze the reach of hydraulic fracturing. Range was previously ordered to turn over a detailed list of all the chemicals and components of substances used at the site since 2009.

Kiskadden’s attorneys, John and Kendra Smith, argue the use of tracers was not previously disclosed, and at least one of newly disclosed tracers was detected in Kiskadden’s drinking water.

More background:

Range Resources Dodges Pa. Fracking Contamination Claims by Alex Wolf with additional reporting by Matt Fair, June 16, 2015, Law360

The Pennsylvania Environmental Hearing Board on Friday tossed a landowner’s 2011 claim that a Range Resources Corp. drilling site caused the contamination of his well water, saying that although he presented extensive evidence of leaks and spills, he didn’t conclusively show a hydrogeological connection between his well and the site.

In what the board said is the first case to proceed to hearing involving a claim that unconventional gas drilling operations contaminated a homeowner’s water well, it concluded that Loren Kiskadden’s case was hurt because he had no predrilling samples to show his water quality before Range began fracking operations and he failed to introduce necessary lab results and testimony from experts that supported his allegations.

“Simply because there are problems on a drilling site, and there certainly were many problems on this site as we have set forth in our adjudication, it does not mean that a water well located approximately one half mile away was impacted by those drilling operations,” the board said in its opinion. “The homeowner must show by a preponderance of the evidence that any pollution to his water well is caused by the drilling operations, and the appellant failed to do that here.”

The EHB, the judicial body of Pennsylvania Department of Environmental Protection, said in its order that Kiskadden’s case was hurt because his memory was poor and his testimony was thin. The opinion noted that Kiskadden never performed any maintenance on his water well or his septic system, which is located near a salvage yard, and scores of lab results introduced into evidence did not support Kiskadden’s theory that his well was contaminated by Range’s operations.

“Although the [DEP’s] investigation was not perfect, it was robust,” the board said, in praise of work done to evaluate Kiskadden’s contentions. “The department took multiple samples and conducted a thorough investigation. Its professional staff presented strong testimony setting forth what they did and how their opinions were formed.”

John M. Smith, an attorney for Kiskadden, said Tuesday that he and his client are obviously very disappointed with the board’s decision because numerous chemicals and constituents found in Kiskadden’s drinking water including acetone, diesel range organics and numerous heavy metals were found leaking from the upgradient drill site during the time period in question.

“We are discussing appeal options with our client, but his primary concern at this time is that he cannot use his polluted water source,” Smith said to Law360.

… Kiskadden launched an appeal with the EHB in October 2011 after the DEP denied his request for an alternative water source to be installed on his property after a series of tests that showed elevated levels of iron, manganese and methane in his water supply.

According to EHB filings, Kiskadden’s water turned gray and started foaming after drilling operations at Range’s adjacent Yeager impoundment began. However, the department said its tests determined that the Yeager site was not the source of Kiskadden’s water contamination.

In 2012, Kiskadden asked an administrative law judge to prevent the company from accessing his property to collect evidence, but the company was ultimately permitted to enter the property to conduct minimally invasive testing.

The situation between Kiskadden and Range has also spurred an ongoing civil suit in the Washington County Court of Common Pleas, where a group of homeowners — including Kiskadden and his mother — sued Range over contamination issues. In April, an appellate court declined to review an order directing the company to produce proprietary information on chemicals supplied by third parties.

In other related news Tuesday, the DEP announced it has levied an $8.9 million civil penalty against Range for allegedly failing to submit a satisfactory plan to repair a leaking gas well that’s polluting groundwater and a stream in Lycoming County.

Pa. Landowners Say Range’s Fracking Tainted Groundwater by Matt Fair, August 5, 2013, Law360

A group of western Pennsylvania landowners last week blasted the state Department of Environmental Protection’s decision permitting Range Resources Corp. to begin hydraulically fracturing two gas wells at a Washington County site despite an ongoing dispute over alleged groundwater contamination from a third well already operating there.

In an appeal filed with the state’s Environmental Hearing Board on July 30, the three landowners said DEP had issued drilling permits for two wells at the so-called Yeager site in Washington County despite continuing allegations that a Range-operated well drilled at the site in 2009 had led to groundwater contamination affecting several area residents.

The appeal said there was evidence showing that an impoundment used to store water, drilling fluids, and other chemicals had leaked into the ground on several occasions in 2010 and 2011, and that there had been a slew of other violations of state environmental regulations at the site.

“The department’s issuance of the Yeager permits in light of this evidence of contamination was clearly done in error,” the appeal said. “There are ongoing department investigations into Range’s activities at the Yeager site, including an ongoing investigation into the leaking of the Yeager impoundment, and open violations that should be forthcoming, including the confirmed contamination of … drinking water sources.”

The appeal said that the state’s Oil and Gas Act allowed the DEP to reject permit applications when operators had previously been found in violation of environmental rules.

“The Oil and Gas Act allows for the denial of a permit when an application [is] ‘in continuing violation’ of the Oil and Gas Act or any other statute or regulation administered by the department,” the appeal said. “Further activity should be prohibited.”

The initial well at the Yeager site was drilled in 2009, according to EHB documents, and was subsequently fracked. Despite a series of spills which the landowners say DEP never punished Range for, the company sought permits to start drilling two additional wells on the property in April.

Over the landowners’ objections, DEP approved the permits in June.

The appeal said that Range had already been hit with at least one DEP violation over its operations at the site. In April 2010, the appellants said, Range was issued a notice of violation for failing to properly control or disposed of well-related fluids.

The Yeager site is already the subject of at least one other appeal before the EHB. Loren Kiskadden launched an appeal with the board in October 2011 after the DEP denied his request for an alternative water source to be installed on his property following a series of tests that showed elevated levels of iron, manganese and methane in his water supply.

According to EHB filings, Kiskadden’s water turned gray and started foaming after drilling operations at Range’s adjacent Yeager impoundment began. However, the department said its tests determined that the Yeager site was not the source of Kiskadden’s water contamination.

Separately, the appellants — along with several other area landowners, including Kiskadden — are locked in litigation with Range in a case currently pending in the Washington County Court of Common Pleas seeking damages stemming from the alleged contamination, according to court records.

Fracking Pollution Plaintiff Wants Property Access Denied by Matt Fair with additional reporting by  Dan Packel, November 16, 2012, Law360

A western Pennsylvania landowner who claims that a Range Resources Corp. Marcellus Shale drilling site caused the contamination of his well water asked an administrative law judge Wednesday to prevent the company from accessing his property to collect evidence.

Loren Kiskadden asked a Pennsylvania Environmental Hearing Board judge to deny Range’s request that the company be allowed to access his property to take samples and collect other evidence as part of an ongoing dispute with the state Department of Environmental Protection over well water contamination.

According to Kiskadden’s EHB filing, Pennsylvania Rules of Civil Procedure limit the scope of property inspection for the purposes of discovery solely to matters relevant to the case. As Kiskadden’s case before the EHB deals exclusively with his well water, he contends that Range should not be allowed to inspect and collect evidence elsewhere on the property.

“The instant action relates solely to appellant’s complaint of contamination to his water supply, which originates from the water well located on his property,” the filing said. “Notwithstanding the foregoing, the request made by Range extends far beyond testing and sampling of Mr. Kiskadden’s water or his water well. As explained, … the request includes Mr. Kiskadden’s property, home, buildings, equipment, vehicles, septic system, air, soil, streams and other things on, under or in the Kiskadden property.”

… A recently publicized deposition in the case by the technical director of DEP’s bureau of laboratories, which Kiskadden’s attorneys contend show the department intentionally limits the scope of its water sampling data, has caused a dust-up between DEP Secretary Michael Krancer and state Rep. Jesse White, D-Cecil, who has criticized the department’s testing protocols.

Kiskadden attorney Kendra Smith told White in a letter that the testimony revealed the DEP used a specially designed “suite code” when testing water samples, which limited the information the lab sent back to the DEP field office, and ultimately to the property owner. The code in question, Suite Code 942, if applied to a sample, reports the presence of only eight of the 24 metals that are supposed to be the subject of testing, according to the letter.

In a letter to White on Nov. 6, Krancer said the set of tests in Code 942 also reports data on alkalinity, hardness, pH, total dissolved solids and conductivity in addition to the eight metals, and that the combination was developed in 1991 in order to detect contamination from gas drilling operations. He noted that New York, Wyoming, Ohio and Colorado also use similar parameters in determining whether gas extraction activities have impacted water supplies.

Matt Pitzarella, a spokesman for Range Resources, lashed out at Kiskadden and his attorneys when reached for comment on Friday.

“They have absolutely no case whatsoever and they know it, which is why they’ve resorted to taking their argument to the media,” he said. “We will continue to fiercely defend our operations and our reputation.”

Litigation Hold Doesn’t Bar Pa. Fracking Site Cleanup: Judge by Matt Fair, November 7, 2012, Law360

A Pennsylvania environmental judge said Tuesday that he did not have the latitude to prevent Range Resources Corp. from filling a Marcellus Shale gas drilling pit at the center of a dispute over tainted well water in Western Pennsylvania as part of a hold placed on potential evidence in the case.

The judge rejected a claim by Washington County landowner Loren Kiskadden that Range Resources’ Yeager impoundment could not be filled under the terms of a litigation hold placed on evidence as part of Kiskadden’s claim that gas drilling operations at the site resulted in the contamination of his water supply.

“A review of voluminous documents filed by the parties indicates that the refilling and reseeding of the drill pit was part of typical activities performed to remediate a drill pit following drilling,” Pennsylvania Environmental Hearing Board Chief Judge Thomas Renwand said. “When the board raised the issue of a ‘litigation hold’ … we were not contemplating physical sites such as the Yeager drill site or the Kiskadden property. Further, we were addressing electronically stored information held by specific individuals in this case.”

… According to EHB filings, Kiskadden wanted the Yeager impoundment preserved in advance of a planned visit to the site by one of the board’s judges, a procedure the board said is not unusual as part of the course of hearing appeals.

However, Judge Renwand noted that such a visit is not admissible as evidence in EHB appeals but is done to allow judges to get a better idea of the context of the often complicated cases they hear.

“The board routinely conducts site views in cases it believes will go to a hearing on the merits,” he said. “The site view itself it not an evidentiary hearing. … We emphasize that a site view conducted by the board … is separate and distinct from a party’s discovery rights pursuant to the Pennsylvania Rules of Civil Procedure. Those rules provide ample opportunity for a party to conduct extensive investigation at a site including inspecting, photographing, and testing.”

He pointed out that Kiskadden and his attorneys had already had an opportunity to visit the site prior to its remediation. [Emphasis added]

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