Amwell lawsuit appeal heard
PITTSBURGH – The full panel of seven Commonwealth Court judges heard arguments Wednesday regarding an appeal in a lawsuit that claims Range Resources contaminated well water at an Amwell Township property in June 2011.
Attorneys for Loren Kiskadden, as well as Range Resources and the state Department of Environmental Protection, each presented 15 minutes of argument focused on the merits of evidence Kiskadden claims was overlooked or disregarded in the state Environmental Hearing Board’s dismissal of the appeal in June 2015. That dismissal said Kiskadden did not meet the burden of proof that his well water was specifically contaminated by a Range water impoundment a half-mile away.
One of Kiskadden’s attorneys, Kendra Smith, argued there was “a hydrogeological connection” from the nearby Yeager impoundment on Banetown Road, and the sample evidence from on and near the site was not given full consideration. The decision from EHB said Kiskadden couldn’t prove that connection.
“The findings by EHB are not substantiated by the evidence. Their decision relied on evidence outside the record, and capriciously ignored actual, overwhelming evidence in the record,” Smith said.
The overlooked evidence, according to Smith, included contradictory testimony from one of Range Resources’ geologists, Elizabeth Perry, in which she first said water in the area water table moved laterally because of several impervious surfaces, but later said it was possible for it to go as deep as 500 feet. The well in question reaches nearly 200 feet beneath ground. Kiskadden first reported gray sludge, foamy water and a rotten-egg odor emanating from his well water in 2011.
President Judge Mary Hannah Leavitt asked Smith if the properties in between the impoundment and Kiskadden’s property were found to be without contamination and whether that would prove there was no connection to the Yeager site.
“No, those properties aren’t fine. In fact, our client (and seven other plaintiffs) are part of a suit against Range Resources seeking damages for contaminated water in those intermediate sites. And they’re using water buffalos, not well water,” Smith said.
Smith’s husband and legal partner, John, explained after the hearing the case involving those residents is still in the preliminary stages.
DEP fined Range $1.4 million for spills and unreported leaks at the Yeager impoundment leading up to that suit filed in 2012. It was part of record-setting fines totaling $4.5 million for leaks and problems at six of the company’s water impoundments in Washington County. Further evidence overlooked, Smith said, was data from well monitors that tracked potential contaminants throughout the area.
DEP attorney Rick Watling, answering a question from Judge Patricia McCullough about a standard of determining contamination, said similar contaminants do not necessarily indicate contamination from a specific site.
“There were elevated levels of chloride, sodium, calcium – but none of those things of themselves proves contamination. It’s the ratio of concentrations relative to each other,” Watling said.
Range Resources’ attorney, Chris Nestor, said “merely because there is a detection of the same substance, it doesn’t mean it jumped or traveled directly from point A to point B.”
“I do think these elements (presented by Smith) challenge the findings of facts,” Judge Kevin Brobson said.
Attorneys for DEP and Range asked the judges to affirm the EHB’s denial. Kiskadden is seeking a reversal of the board’s rejection of the appeal.