Another fracking lawsuit, by another junkyard plaintiff, goes nowhere after the Pennsylvania Environmental Hearing Board looks at all the evidence.
Earlier this year I reported here on a case I’ve been following since 2012 when I wrote this post over at Energy In Depth. Both involved the bizarre case of junkyard plaintiff Loren Kiskadden and his claim that his water well located 2,900 feet away from a Range Resources well site had polluted the water well located in his junkyard.
I noted the parallels with the Dimock matter, including the fact both involved the use of a particular fractivist “expert” by the name of Paul Rubin, whose testimony keeps coming up short with judges. I also pointed out how the Dimock case was all but over when Yoko Ono and Susan Sarandon had to resort to visiting a junkyard for evidence to fit their notion of fracking contamination.
Now, the verdict on the fracking lawsuit of Loren Kiskadden, the original junkyard plaintiff, is in and it once more proves the junkyard is best final resting place of not only cars, but also of false fracking accusations.
The Kiskadden case has taken many strange turns and was brought by Attorney John Smith, one of the various trial lawyers involved in the Act 13 case on behalf of communities he then served as solicitor.
The plaintiff is Loren Kiskadden, a litigious junkyard owner with a record (see mug shot to right). Kiskadden’s water well is in the middle of a junkyard (see picture and video below) and he has sought to prove this well was somehow contaminated by Range Resources’ activities, specifically including the hydraulic fracturing of the well(s) but also the drilling, taking place over a half-mile away.
Kiskadden’s case, as we observed in our earlier post, involved many distractions with accusations of DEP testing improprieties and various other sidebar activities of a political nature. It also involved the use, as expert witness, of Paul Rubin, a favorite of the Delaware Riverkeeper and like-minded fractivist groups, including other trial lawyers connected with Shelly Silver, the recently dethroned Speaker of the New York State General Assembly as well as the Dimock case (it’s always the same people when you dig deep).
Rubin’s testimony in the Kiskadden case was skewered by Pennsylvania DEP attorneys in their brief on the matter, reading much like the opinion of a New York judge in his evaluation of Rubin’s contributions in another case. The judges of the Environmental Hearing Board (EHB) were only slightly less skeptical, concluding the following (emphasis added):
We are aware of the fact that this is the first case to proceed to hearing involving a claim that unconventional gas drilling operations contaminated a homeowner’s water well. As set forth in our Adjudication, after a careful review of all the evidence we find that the Appellant did not prove his case by a preponderance of the evidence. This case was extremely hard fought. Counsel represented their clients zealously at trial and we are appreciative of their efforts.
In the end, the Appellant’s case was hurt by several factors. First, he had no pre drilling samples to show the quality of his water prior to Range’s drilling operations. This, in and of itself, is not necessarily fatal, but the absence of such water samples made his case more difficult to prove. Second, the Appellant simply did not introduce the necessary factual testimony, lab results, or expert testimony to carry his burden of proof and prove his case by a preponderance of the evidence. Candidly, Appellant did not help his case by his own testimony. His memory was poor and his testimony was thin.
The physical facts showed that his water well was located adjacent to a salvage yard with numerous automobiles and other solid waste product on the grounds over the years. The Appellant never performed any maintenance on his water well or on his septic system. When the water pump inside his well stopped working and was removed, the Appellant’s own testimony describing the water pump vividly highlights this lack of maintenance. Pictures of his water well show a well open to the elements and not properly maintained.
The Appellant’s hydrogeology expert testified in a conclusory manner and his “shotgun” approach to what caused the contamination was not persuasive based on the evidence he relied on. The scores of lab results introduced into evidence by the Appellant did not support the theory that his well was contaminated by Range’s operations. As we explained, high chloride readings can be a good indicator that drilling operations have contaminated a water source. For example, it is undisputed that the Yeager Springs were contaminated by Range’s drilling operations, and the chloride readings in the samples taken from the Yeager Springs were in the thousands. In contrast, the chlorides in Mr. Kiskadden’s water well never exceeded 44 mg/l.
Although the Pennsylvania Department of Environmental Protection’s investigation was not perfect, it was robust. 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.
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 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.
What’s really interesting, though, is that the EHB gave Kiskadden major benefits of the doubt in this case. There was a dispute, for example, over access to information on fracking fluid ingredients considered proprietary. The EHB resolved this by simply granting the KIskadden “a rebuttable presumption which eliminated the Appellant’s need to prove that chemicals found in his water well were contained in products used at the [Range Resources] Yeager site.” Kiskadden, in other words, was allowed to assume chemicals in his well were used by Range, when there was no such evidence in the record.
Additionally, the EHB approved a motion sought by Kiskadden’s attorneys “to prevent Range from introducing the testimony of three expert witnesses whose expert reports were filed on August 22 and 24, 2014, after the deadline agreed to by the parties and without seeking leave of the Board.” Range Resources, in other words, didn’t get to use three other expert witnesses it had available to help make its case.
Despite these advantages, Kiskadden could not prove his case. The EHB stated “We have concluded our investigation and cannot make the determination, for the reasons summarized below, that the problems in your water well are caused by gas well related activities, particularly those at the Yeager well site operated by Range.” The following are excerpts from the findings of fact the EHB offered in the way of those reasons for its conclusion:
“It is not unusual for water wells to experience a hydrogen sulfide odor. It can be caused by changes in the barometric pressure and water table.”
“It would not be uncommon to find organic compounds such as acetone, t-butyl alcohol or chloroform in Mr. Kiskadden’s water supply due to its proximity to Banetown Road, agricultural operations, the adjacent salvage yard and vehicles on his property.”
“Acetone is naturally occurring in the environment and is associated with the degradation of organic constituents.”
“At the direction of the Department, in June or July 2011 Mr. Kiskadden began pouring bleach into his water well in order to kill bacteria and/or eliminate the rotten egg odor. Mr. Kiskadden did not dilute the bleach. Bleach can cause chloroform to appear in water.”
“Gasoline from vehicles can be a source of t-butyl alcohol.”
“Groundwater can contain minerals, chemicals, biological substances and metals. Arsenic, aluminum, antimony, barium, boron, cadmium, chromium, cobalt, copper, iron, lead, magnesium, mercury, manganese, molybdenum, nickel, phosphorous, potassium, selenium, silica, silver, thallium, uranium, vanadium, and zinc all exist naturally in groundwater in Pennsylvania, and in groundwater in Washington County in particular.”
“Gas well related waters typically exhibit elevated chlorides, sodium and calcium concentrations, high total dissolved solids and heavy metals.”
“Mr. Kiskadden’s water exhibits high levels of sodium and total dissolved solids, but does not exhibit high levels of chlorides.”
“In gas well related waters, concentrations of chloride typically exceed sodium by two to three times.”
“The chlorides in Mr. Kiskadden’s water were significantly lower than the level of sodium.”
“Mr. Kiskadden’s water samples are not typical of water impacted by gas well related activity.”
“If the sodium levels in Mr. Kiskadden’s water were attributable to impacts from oil and gas-related fluids, one would have expected to see chloride levels that were ten to twenty times higher.”
“The water chemistry type of Mr. Kiskadden’s water is sodium bicarbonate.”
“Sodium bicarbonate water often has higher methane concentrations because it consists of deeper groundwater that is further from a recharge area.”
“Sodium bicarbonate water is common in valley settings in Washington County and has been part of the groundwater system since glaciation.”
“A published groundwater survey of Washington County documents occurrences of groundwater having sodium levels in excess of chloride levels.”
“The isotopic ratio for the ethane in Mr. Kiskadden’s water is different than that of Range’s wells.”
“Mr. Kiskadden’s strontium ratio is outside the established ranges for the Marcellus Shale and Upper Devonian Shale in Washington and Greene Counties.”
There was also this from the discussion following:
“In contrast, sampling of water wells and springs on the Voyles and Haney properties located between the Yeager site and Mr. Kiskadden’s well had lower concentrations of chlorides, sodium, total dissolved solids and pH than did Mr. Kiskadden’s well. This data does not support the theory that contamination is moving toward Mr. Kiskadden’s well through a series of fractures.”
The significance of this is to be found in the fact the Voyles and Haney properties are the subject of another fracking lawsuit brought by the Smith law firm. Interesting that the court observed those results are even weaker than Kiskadden’s isn’t it?
It’s not hard to see from these findings of fact that Kiskadden didn’t have much of a case. It was largely built on trying to indict the work of DEP without making a case on the facts. It didn’t work because, as the EHB repeatedly noted, they were hearing the case as if it was new. Moreover, Kiskadden had every opportunity with his fracking lawsuit to attempt to prove fracking contaminated his well. He couldn’t do it even with Range Resources having one hand tied behind its back with unfavorable assumptions and three fewer experts than they’d wanted. Paul Rubin’s fanciful theories and other mush didn’t cut it either.
Range Resources was obviously pleased with the result, stating the following:
““We appreciate the thorough analysis by the Environmental Hearing Board, which upheld the Department of Environmental Protection’s determination that Range’s activities did not cause, contribute or impact Mr. Kiskadden’s water supply. This ruling is the latest in a long series of events including the EPA’s recent report of a multi-year study that we believe should provide the public with confidence drilling can and is being done safely and that regulatory agencies are diligently overseeing the process.”
Range Resources should be pleased. Justice, though it be late and lags the damaging headlines, has, nonetheless, prevailed. The other side will, no doubt, attempt to spin this defeat the same way they have cried over the EPA fracking study, with more yelps and flashing teeth than a junkyard dog, but this junkyard dog didn’t hunt.