Dec 1, 2016 3 min read

Lawyers representing an Amwell Township man are seeking to appeal his case against Range Resources and state environmental regulators to the state Supreme Court, asserting the natural gas driller wrongfully withheld evidence of radioactive and chemical tracers used at a well near his home during previous proceedings.

In a petition filed Nov. 22, attorneys Kendra and John Smith, who represent Loren Kiskadden, asked the state’s highest appellate court to hear their client’s case. Kiskadden, whose property is about half a mile and downhill from the Yeager well site, alleges operations at the site contaminated his drinking water.

The case would be the first alleging contaminated water related to fracking operations to go before the Supreme Court.

In arguing for the appeal, Kiskadden’s attorneys said Range failed to disclose its use of at least 11 radioactive and chemical tracers at the Yeager site – information obtained through depositions of employees of subcontractors working for Range in a separate case, in which Kiskadden also is a plaintiff, in Washington County Court.

The petition also states Range failed to disclose a draft letter prepared by U.S. Agency for Toxic Substances and Disease Registry that said Kiskadden’s water was polluted and shouldn’t be used.

Kiskadden’s lawyers argued those pieces of evidence should have been presented to the Environmental Hearing Board, where Kiskadden appealed the case after the Department of Environmental Protection found his water was contaminated, but that it hadn’t been affected by operations at the Yeager site.

The hearing board found in 2015 “Kiskadden did not prove a hydrogeological connection between his well and the Yeager site.”

A Commonwealth Court judge denied a request in December to remand the case back to the hearing board in light of the evidence Range allegedly had withheld. The full court affirmed the board’s adjudication last month in a 6-1 decision, even as it called Range’s activities at the site “irresponsible in the extreme, bordering on reprehensible.” Range spokesman Matt Pitzarella pointed to the outcomes of the earlier proceedings.

“All of the issues raised in the petition have been addressed over the last several years by the appropriate regulatory and judicial bodies, including the PA DEP, the Environmental Hearing Board, as well as the Commonwealth Court, and in every instance these bodies repeatedly determined that Range’s operations did not impact Mr. Kiskadden’s water supply, a water well that has faulty construction and is surrounded by a junkyard,” Pitzarella said in an email. “Regardless, we will continue to respect the legal process.”

Kiskadden’s attorneys also argued the hearing board didn’t address evidence supporting a hydrogeological connection between their client’s water supply and the Yeager site, including evidence from groundwater monitoring wells near the site’s impoundment.

“Scouring through the pages of the adjudication, the words ‘groundwater well monitors’ absolutely do not appear,” according to the petition.

The attorneys also said in the petition that the hearing board improperly speculated contaminants in Kiskadden’s water could have come from sources other than the well site, despite not having any evidence supporting that conclusion.

Citing a similar argument made by the Commonwealth Court judge who wrote a dissenting opinion in the case, Kiskadden’s attorneys said the hearing board committed a legal error when it granted a “rebuttable presumption” that contaminants in Kiskadden’s water were also present at the Yeager site when Range and DEP failed to disprove that assertion, but then tried to “explain away” the constituents of Mr. Kiskadden’s water as “naturally occurring.”