Oil and Gas Lawyer Blog
The Commonwealth Court of Pennsylvania last month issued its decision in Kiskadden v. Pennsylvania Department of Environmental Protection, copy of opinion here: Kiskadden. Kiskadden claims that chemicals from Range Resources’ Yeager wells, located about a half-mile from Kiskadden’s water well, contaminated his well. One judge dissented. The Commonwealth Court is an intermediate court of appeals in Pennsylvania, so Kiskadden can appeal to the Pennsylvania Supreme Court.
The case began with Kiskadden’s complaint to the Pennsylvania Department of Environmental Protection. The DEP conducted an investigation and held a hearing and concluded that Kiskadden’s well was not contaminated by Range’s operations. Kiskadden appealed to the Board of the DEP. The parties conducted extensive discovery. Kiskadden refused to produce a list of all products and the composition of products used at the Yeager drillsite, but Range refused to produce that information. The Board then ruled that it would grant a “rebuttable presumption” that the chemicals found in Kiskadden’s water well were presumed to be present at the Yeager drillsite. In effect, this shifted the burden of proof to Range to show that it had not contaminated the well. After a hearing before the Board, it issued extensive findings and conclusions and affirmed the conclusion of the Department that chemicals spilled at Range’s site were not the source of the contamination of Kiskadden’s well.
In the course of the suit, substantial evidence was presented of multiple spills at the Yeager drillsite of drill cuttings, flowback water, brine water, and diesel fuel, and multiple instances of leaks from holes in the liner system in earth impoundments holding contaminants. The drillsite was located within 600 feet of two fresh-water springs, called Yeager Springs. The Yeager Springs were contaminated as a result of a leak from the drill cuttings pit located on Range’s drillsite. Because of these and multiple other violations, the DEP and Range entered into a consent order and agreement in which Range agreed to pay $4.15 million in fines for contamination at the Yeager drillsite and other sites. You can view the consent order here. Range(COA)(Final Signed 9-17-2014)
Although ruling for Range, the majority opinion of the court castigates the company:
Range’s reckless business practices, combined with its repeated failure to report problems at the Yeager Site, are irresponsible in the extreme, bordering on reprehensible.
The majority opinion in Kiskadden does not discuss the effect of the “rebuttable presumption” imposed on Range by the DEP Board. The dissent’s opinion considered that presumption controlling and would hold that Kiskadden did show that his well was contaminated by Range’s operations on the Yeager padsite:
Without doubt, this is a remarkable presumption that is extremely damaging to Range, having the practical effect of assuming that, in terms of contaminants, those found at the Yeager Site were the same as those in the well water. It is also a presumption that was never found to have been rebutted by the Board.
Range’s dispute with Kiskadden is reminiscent of its fight with the Lipskys in Parker County, Texas. That fight is still going on. I’ve written about it before. Here is a good summary to date. The Lipskys claimed that Range’s wells had infused their water well with natural gas. Lipsky would light the water coming out of a water hose to prove it. Range claimed the lighted water hose was a stunt that defamed the company. Lipsky complained to the Environmental Protection Agency. The agency issued an emergency order requiring Range to remediate the well. Range sued the EPA, and it commenced a hearing at the Texas Railroad Commission to prove that its well did not contaminate the Lipskys’ well. Neither Lipsky nor the EPA showed up at the RRC hearing and the RRC unsurprisingly found that Range was not responsible for the gas in the Lipskys’ well. The Lipskys then sued Range for contaminating the well. Range counterclaimed for defamation. The trial court dismissed the Lipskys’ claim because the RRC had already determined that Range was not responsible. The trial judge, Trey Loftin, later recused himself after one of his campaign fliers said that “The EPA, using falsified evidence provided by a liberal activist environmental consultant, accused and fined a local gas driller of contaminating wells,” and “President Barack Obama’s EPA backed down only after Judge Trey Loftin ruled that the evidence was ‘deceptive’.” Suits are still pending.