Kiskadden v. Pennsylvania Department of Environmental Protection ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Loren Kiskadden, :
: No. 1167 C.D. 2015
Petitioner : Argued: April 13, 2016
:
v. :
:
Pennsylvania Department of :
Environmental Protection, :
:
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
OPINION BY JUDGE WOJCIK FILED: October 26, 2016
Loren Kiskadden (Kiskadden) seeks review of an adjudication of the
Pennsylvania Environmental Hearing Board (Board) dismissing his appeal upon
determining he did not meet his burden of proving that the natural oil and gas
drilling operations conducted by Range Resources-Appalachia, LLC (Range)1 at
the Yeager Site contaminated his well water. Kiskadden contends substantial
evidence does not support the Board’s factual findings; the Board capriciously
disregarded material competent evidence demonstrating a hydrogeological
connection between his well and the natural gas operations at the Yeager Site; and,
the Board erred by relying on speculative evidence to support its finding that a
1
Range intervened in this appeal.
hydrogeological connection did not exist. After careful review of the extensive
and well-developed record, we affirm.
I. Background
Kiskadden’s residential property is located on Banetown Road in
Amwell Township, Washington County, Pennsylvania. Kiskadden and various
family members have resided on the property for the last 30 to 40 years.
Kiskadden has personally resided there since 2008. Kiskadden’s water is supplied
by a well located on the property. The depth of the well is believed to be 300-397
feet deep, but the age or details regarding the construction of the well are
unknown. The property is located adjacent to a vehicle scrap yard, which his
family has run since the 1960s. The property is also located approximately within
one half mile, or 2,900 feet, of Range’s Yeager Site. The Yeager Site sits on a
hilltop to the northeast of the Kiskadden property, which sits in a valley.
In December 2009, Range began conducting oil and gas extraction
operations at the Yeager Site. The Yeager Site consists of a centralized
impoundment for the storage of gas well related waters, a drill cuttings pit, and a
mud processing pit, as well as three unconventional gas wells2: 1H, 2H and 7H.
Initially, Range operated one unconventional gas well (7H), which it drilled from
September to November 2009, and then horizontally drilled and hydraulically
fractured in December 2009. Burkett Shale within the Upper Devonian Formation
2
An unconventional gas well taps gas trapped in a deep shale formation, rather than
shallower sand formations targeted by conventional gas wells. After drilling vertically to reach
the target shale formation, unconventional gas well drilling continues in a horizontal direction.
To stimulate gas production, the shale is hydraulically fractured by injecting fluids at high
pressure. Reproduced Record (R.R.) at 716a.
2
is the target formation at a depth of approximately 7,200 feet. Range later added
two additional unconventional wells (1H and 2H), which it drilled vertically from
December 2010 to January 2011, and then drilled horizontally and hydraulically
fractured in 2014. Marcellus Shale is the target formation of the additional wells.
Board’s Adjudication, 6/12/15, Findings of Fact (F.F.) Nos. 25, 26, 30, 32.
Kiskadden filed a complaint with the Department of Environmental
Protection (Department) alleging that, in June 2011, his well water foamed,
contained gray sludge-like matter and had a rotten egg odor. The Department
conducted an investigation that consisted of inspections of Kiskadden’s property
and the Yeager Site, water-quality testing and a hydrogeology study of the area.
Range also conducted water quality testing of Kiskadden’s water.
The tests, conducted on June 6, 2011 (Department) and on June 9 and
July 27, 2011 (Range) produced similar results. Specifically, the water quality
tests of Kiskadden’s water showed: a high pH of 8.4 to 9.1; high total dissolved
solids (TDS) between 670-1120 milligrams per liter (mg/l), and high sodium,
approximately 300 mg/l. However, the chloride concentration was between 33 and
44 mg/l, or about one-eighth of the sodium level. The Department also detected
low levels of methane gas, which it identified through isotopic analysis to be drift
gas not natural gas emanating from a gas well, and very low concentrations of
several organic compounds: butyl alcohol, chloroform and acetone. The tests also
revealed Kiskadden’s water was bacteriologically contaminated by high levels of
coliform. Ultimately, the Department concluded Kiskadden’s water well was
polluted. However, the Department determined the contamination in Kiskadden’s
water supply was not caused by or otherwise impacted by activities at the Yeager
3
Site or any other gas well related activities as neither the hydrogeological study nor
analytic results supported a connection. Reproduced Record (R.R.) at 6906a-08a.
From this determination, Kiskadden appealed to the Board. Range
intervened. The parties conducted discovery and filed numerous pretrial motions.
When Range did not respond to a discovery request to provide a list of all products
and the composition of all products used at the Yeager Site, the Board granted “a
rebuttable presumption[,] which eliminated [Kiskadden]’s need to prove that
chemicals found in his water well were contained in the products used at the
Yeager [S]ite.” Board’s Adjudication at 6. In other words, any chemicals found in
Kiskadden's well water were presumed to be present at the Yeager Site. But, this
rebuttable presumption did not relieve Kiskadden’s burden of proving a
hydrogeological connection between his well and the Yeager Site, by a
preponderance of the evidence. See 25 Pa. Code §1021.122.
The Board exercised de novo review, held a 20-day trial and
conducted two site views in October 2012 and September 2014. The parties
presented extensive testimony and numerous exhibits. Kiskadden testified and
presented Paul Rubin, a hydrogeologist, and Dr. Michael Sommer, a forensic
geochemist. The Department presented Michael Morgart, a geology and
hydrogeology expert, Alan Eichler, an expert on water investigations and isotopic
gas evaluations who managed the Department’s Oil and Gas Program in the
Southwest Region and issued the Department’s determination, Vincent Yantko, the
Department’s field water quality specialist, and John Carson, the Department’s
water quality specialist, among others. Range’s witnesses included Elizabeth
Perry, a geology and hydrogeology expert. At the conclusion of the evidence, the
parties filed post-hearing briefs.
4
Based on the voluminous record,3 the Board issued a 55-page order,
containing 173 findings of fact, 10 conclusions of law, and a thorough discussion
of the issues. The Board found that numerous problems existed at the Yeager Site,
including several leaks and spills, during the relevant timeframe from 2010
through 2011. At the time Kiskadden experienced his water issues in June 2011,
the Department was unaware of some of these problems. In fact, some of the leaks
and spills were never reported to the Department, while others were not reported in
a timely or accurate manner. A summary of the leaks and spills at the Yeager Site
include, but are not limited to, the following:
March 2010 Drill cuttings pit leaked, releasing production fluid into the
soil
April 2010 Fluid was placed in the Yeager impoundment before a hole in
the double liner system was patched.
June 2010 Ten gallons of drilling mud were spilled onto the ground.
July 2010 A secondary containment overflowed and flowback water4
was released to the ground.
August 2010 Hydrogen sulfide was detected and treated in the Yeager
impoundment.
Approximately 84 gallons of brine water spilled.
A couple hundred gallons of clarified brine spilled from a
tank outside of the containment area.
Holes discovered in containment system, which allowed
spilled fluids to leak into ground.
November 2010 Testing of the impoundment’s leak detection zone revealed
that the impoundment was leaking.
December 2010 Secondary containment at the Yeager impoundment
overflowed.
Fifteen gallons of diesel fuel spilled in the same area.
3
The record consists of a transcript containing approximately 5,000 pages and hundreds
of exhibits. There are 19 volumes of reproduced records, consisting of 8,926 pages.
4
Flowback water is a water-based fracturing fluid that flows back to the surface after the
completion of hydraulic fracturing. F.F. No. 29.
5
January 2011 Ten to 15 barrels of blended water5 were released onto the
ground.
A leak occurred on a transfer line that was transferring
flowback water between the Yeager Site and another drill site.
February 2011 A truck overturned at the Yeager Site, spilling a load of frac
water, diesel fuel and oil.
March 2011 A truck left its valve open and fluid, at least 20 gallons and
possibly 100 gallons, spilled onto the ground at the Yeager
Site, ran down to the access road and into an open field.
June 2011 A truck again left its valve open and spilled recycled water
that was removed from the Yeager impoundment.
Board’s Adjudication at 3-4. The problems at the Yeager Site persisted after
Kiskadden filed his complaint,6 including one instance where, without obtaining
Department approval, Range flushed the drill cuttings pit with 30,000 gallons of
water. At the time of flushing, the soil contained contaminants above background
levels. Id. at 4, n.5.
There was no dispute that Kiskadden’s water well is polluted.
However, the crux of the matter before the Board was whether the operations at the
Yeager Site caused the pollution in Kiskadden’s water well, which is Kiskadden’s
burden to prove.
5
Blended water consists of flowback, frac water or treated water. Board’s Adjudication
at 4.
6
The Department cited Range Resources for numerous violations of state laws regulating
oil and gas, solid waste management, clean streams, and dam safety and encroachment related to
leaks and spills occurring at the Yeager Site. R.R. at 4079a-4085a. In September 2014, the
Department and Range entered a consent order and agreement in which Range agreed to pay
$4.15 million in fines for contamination occurring at the Yeager Site and other impoundments
and to close several impoundments, including Yeager. The consent order and agreement is
available on the Department’s portal: http://files.dep.state.pa.us/RegionalResources/
SWRO/SWROPortalFiles/Range(COA)(Final%20Signed%XXX-XX-XXXX).pdf (last visited
8/22/16).
6
Acting as fact-finder, the Board weighed the conflicting testimony and
evidence. The Board credited the testimony presented by the Department and
Range over Kiskadden’s experts, Rubin and Dr. Sommer. Specifically, the Board
found Rubin’s testimony “to be conclusory and difficult to follow.” Board’s
Adjudication at 36. The Board added Rubin spent a great deal of time discussing
his work in other cases, rather than answering the questions posed to him in this
case. Id.
Although the Board found Dr. Sommer’s testimony “forthright,
credible and well explained,” the Board noted that Kiskadden relied on “Dr.
Sommer’s testimony for conclusions that he did not reach.” Board’s Adjudication
at 41. For instance, Kiskadden, in his post-hearing brief, asserted the gas in his
well was “thermogenic.” Kiskadden stated “‘thermogenic’ gas refers to gases that
emanate from a petroleum source or as a result of carbon dioxide reduction” and
that “the methane in [his] well derives from a thermogenic, deep-seated gas.”
Board’s Adjudication at 41 (quoting Kiskadden’s Post-Hearing Brief at 217).
None of the experts, including Kiskadden’s own expert, Dr. Sommer, testified the
gas in Kiskadden’s well was thermogenic. Although Dr. Sommer testified the gas
detected in Kiskadden’s well and the production gas in Range’s well were both
“deep seated,” he testified they were “distinctly different.” Id.; see R.R. at 1091a,
1207a. Dr. Sommer testified the gas in Kiskadden’s well was caused by carbon
dioxide reduction, whereas Range’s production gases emanated from a petroleum
source. Board’s Adjudication at 41; see R.R. at 1207a. Dr. Sommer had no reason
to believe the gas in Kiskadden’s well had any relationship to the gas in Range’s
production well. Board’s Adjudication at 41; see R.R. at 1207a.
7
In contrast, the Board found the testimony of Range’s expert, Perry, to
be “clear, concise and easy to follow.” Board’s Adjudication at 36. “She
answered the questions at hand and her theories were well articulated and
supported.” Id. Perry “presented credible testimony that the strata of lower
permeability in the vicinity of the Yeager [S]ite would have prevented groundwater
from penetrating vertically and would instead cause the groundwater to perch on
top and travel horizontally in the direction of the Yeager Springs.”7 Id. at 37-38.
In addition, the Board relied on the testimony of the Department’s witnesses.8
Ultimately, the Board determined that Kiskadden did not demonstrate,
by a preponderance of the evidence, that a hydrogeological connection existed
between his water well and Range’s operation at the Yeager Site. The Board found
the impermeability of the soil in the area did not allow for movement of chemicals
between the Yeager Site and Kiskadden’s well water. See F.F. Nos. 85, 161, 162,
164. Although Kiskadden produced hundreds of pages of sampling results
showing that numerous parameters were detected in both his water well and at the
Yeager Site, he did not persuade the Board that a hydrogeological connection
existed. The Board found that many of parameters detected were naturally
occurring in groundwater and reflective of background water quality in the area.
F.F. Nos. 79, 95, 96, 129, 130, 154, 156. Other contaminants detected were not
unique to oil and gas well operations. F.F. Nos. 77, 78.
7
Yeager Springs is located northwest from the Yeager Site, whereas Kiskadden’s
property is located southwest from the Yeager Site. See R.R. at 7136a.
8
Although the Board did not make specific credibility determinations regarding the
Department’s witnesses, it cited their testimony in support of numerous findings.
8
More particularly, the Board noted gas well waste fluids are high in
many parameters, including sodium, calcium, total dissolved solids, and heavy
metals. F.F. No. 97. But, it found such fluids characteristically show the highest
concentration in chloride, usually 2-3 times that of sodium. F.F. Nos. 97, 99.
Kiskadden’s water supply showed a chloride concentration of about one-eighth of
the sodium level. F.F. No. 100. Assuming sodium and other contaminants from
gas-related waters at the Yeager Site traveled to Kiskadden’s well, the Board
reasoned chlorides would have been present in much higher concentrations, but
they were not. F.F. No. 102. Although some parameters detected in Kiskadden’s
well are not typically found naturally in groundwater, the Board noted other
possible contributors, including a nearby salvage yard, the storage and repair of
vehicles on the property, and a lack of well maintenance. F.F. Nos. 16, 77, 78, 82,
83. The Board also found Kiskadden’s well showed signs of surface water
infiltration. F.F. No. 14. Upon determining Kiskadden did not prove a
hydrogeological connection between his well and the Yeager Site, the Board
dismissed his appeal. Kiskadden now seeks review of the Board’s decision.9
II. Issues
First, Kiskadden contends substantial evidence does not support the
Board’s factual findings that a hydrogeological connection does not exist between
Kiskadden’s water well and the natural gas operations occurring at the Yeager Site.
He claims a hydrogeological connection was established through the use of the
9
Kiskadden also filed an application to vacate and remand, which this Court denied.
Kiskadden v. Pennsylvania Department of Environmental Protection (Pa. Cmwlth., No. 1167
2015, order filed December 7, 2015).
9
“definitive test,” which demonstrated the movement of contaminants from the
Yeager Site (Point A) to his water well (Point B). Evidence presented shows that
the contaminants present in his water well are the same as those at the Yeager Site.
According to Kiskadden, this proves his water chemistry is consistent with a
profile of water contamination by natural gas operations.
Kiskadden argues the Board placed too much emphasis on the lack of
chlorides present in his water well. Although high sodium and high chloride levels
are indicators of pollution caused by gas well drilling, Kiskadden maintains they
are not the only parameters. In fact, the Department developed “suite codes” or
“SACs” in order to highlight the presence of other parameters indicative of oil and
gas pollution. Such other parameters include heavy metals and man-made
chemicals. Kiskadden proved these other parameters are in his water well and the
samples taken from the Yeager Site. He claims that many of the parameters
detected in his water, such as the man-made contaminants, are not “naturally
occurring.” Given the temporal relationship between the leaks and spills at the
Yeager Site and the sudden onset of his water well contamination, he argues there
can be no denying the existence of a hydrogeological connection between the two.
In addition to water chemistry, Kiskadden maintains that substantial evidence
demonstrates the movement of contaminants in groundwater through an
underground fracture network.
Second, Kiskadden contends the Board capriciously disregarded
material competent evidence demonstrating the existence of a hydrogeological
connection between his water well and the natural gas operations occurring at the
Yeager Site. More particularly, he claims the Board ignored his definitive test
theory and the evidence regarding underground fracture network, and it acted in
10
defiance of the presumption that the contaminants found in Kiskadden’s well water
were present at the Yeager Site.
Finally, he asserts that the Board erred as a matter of law in relying on
speculative evidence to support its finding that a hydrogeological connection did
not exist between his water well and the natural gas operations occurring at the
Yeager Site.
III. Discussion
A. Substantial Evidence
We begin by noting that our review is limited to determining whether
the Board committed an error of law, violated constitutional rights, or whether
substantial evidence supports its findings of fact. 2 Pa. C.S. §704; Harvilchuck v.
Department of Environmental Protection, 117 A.3d 368, 373 n.4 (Pa. Cmwlth.
2015). Substantial evidence is such “relevant evidence upon which a reasonable
mind could base a conclusion.” MKP Enterprises, Inc. v. Underground Storage
Tank Indemnification Board, 39 A.3d 570, 588 (Pa. Cmwlth.), appeal denied, 60
A.3d 537 (2012) (quoting Rohde v. Unemployment Compensation Board of
Review, 28 A.3d 237, 242 (Pa. Cmwlth. 2011)). In determining whether
substantial evidence exists, we view the record in the light most favorable to the
party that prevailed before the Board, and give that party the benefit of all
reasonable inferences that can be drawn from the evidence. MKP Enterprises, 39
A.3d at 588; Herzog v. Department of Environmental Resources, 645 A.2d 1381,
1387 (Pa. Cmwlth. 1994).
Further, “[q]uestions of resolving conflicts in the evidence, witness
credibility, and evidentiary weight are properly within the exclusive discretion of
the fact-finding agency, and are not usually matters for a reviewing court.”
11
Herzog, 645 A.2d at 1387 (quoting Chapman v. Pennsylvania Board of Probation
and Parole, 484 A.2d 413 (Pa. Cmwlth. 1984)); accord Brockway Borough
Municipal Authority v. Department of Environmental Protection, 131 A.3d 578,
586-87 (Pa. Cmwlth. 2016). It is irrelevant whether the record contains evidence
that would support contrary findings. Ductmate Industries, Inc. v. Unemployment
Compensation Board of Review, 949 A.2d 338 (Pa. Cmwlth. 2008); Carbondale
Area School District, v. Fell Charter School, 829 A.2d 400, 404 (Pa. Cmwlth.
2003). Our critical inquiry is whether the findings are supported by substantial
evidence. Ductmate; Carbondale.
In this matter, Kiskadden bore the burden of proving, by a
preponderance of evidence, that the Yeager Site was the source of constituents
found in his water supply. 25 Pa. Code §1021.122,10 see Brockway, 131 A.3d at
10
This regulation provides:
(a) In proceedings before the Board, the burden of proceeding and
the burden of proof shall be the same as at common law in that the
burden shall normally rest with the party asserting the affirmative
of an issue. It shall generally be the burden of the party asserting
the affirmative of the issue to establish it by a preponderance of the
evidence. In cases where a party has the burden of proof to
establish the party's case by a preponderance of the evidence, the
Board may nonetheless require the other party to assume the
burden of proceeding with the evidence in whole or in part if that
party is in possession of facts or should have knowledge of facts
relevant to the issue.
(b) The Department has the burden of proof in the following cases:
(1) When it assesses or files a complaint for a civil penalty.
(2) When it files a complaint for any other purpose.
(3) When it revokes or suspends a license, permit, approval
or certification.
(4) When it issues an order.
(c) A party appealing an action of the Department shall have the
burden of proof in the following cases:
(Footnote continued on next page…)
12
587. “A preponderance of the evidence is such proof as leads the trier of fact to
find that the existence of a contested fact is more probable than its nonexistence.”
Al Hamilton Contracting Co. v. Department of Environmental Resources, 659
A.2d 31, 39 (Pa. Cmwlth. 1995). “A preponderance of the evidence standard, the
lowest evidentiary standard, is tantamount to ‘a more likely than not’ inquiry.”
Helwig v. Department of Transportation, Bureau of Driver Licensing, 99 A.3d
153, 158 (Pa. Cmwlth. 2014) (quoting Carey v. Department of Corrections, 61
A.3d 367, 374 (Pa. Cmwlth. 2013)).
Where the issues require scientific or specialized knowledge or
experience to understand, such as the intricacies of drilling and the science of
hydrogeology, expert testimony is required. Brockway, 131 A.3d at 587;
Department of Transportation v. Agricultural Lands Condemnation Approval
Board, 5 A.3d 821, 828-29 (Pa. Cmwlth. 2010). Notwithstanding, a party may
meet its burden of proof with circumstantial evidence if it so preponderates in
favor of a conclusion as to outweigh in the mind of the fact-finder any other
evidence. Al Hamilton, 659 A.2d at 40.
(continued…)
(1) When the Department denies a license, permit, approval
or certification.
(2) When a party who is not the recipient of an action by
the Department protests the action.
(3) When a party to whom a permit approval or
certification is issued protests one or more aspects of its issuance
or modification.
(4) When a party appeals or objects to a settlement of a
matter between the Department and another private party.
25 Pa. Code §1021.122.
13
With these principles in mind, we examine the findings that
Kiskadden challenges to determine if they are supported by substantial evidence.
1. Hydrogeological Connection – Water Chemistry
First, Kiskadden asserts the Board’s finding that a hydrogeological
connection does not exist between his water well and the natural gas operations
occurring at the Yeager Site is not supported by substantial evidence. Contrary to
Kiskadden’s assertion, the Board did not find that a hydrogeological connection
between his well and Yeager Site “does not exist.” Rather, the Board found
Kiskadden did not meet his burden of proving the existence of a connection, which
is different and determinative.
Kiskadden attempted to establish the existence of a hydrogeological
connection through water chemistry by the use of the “definitive test.” Under this
theory, a connection is established if a contaminant found at Point A (Yeager Site)
turns up at Point B (Kiskadden’s well).
Kiskadden contends this theory is well supported by the testimony of
the Department’s witnesses. Morgart and Eichler both testified regarding the
definitive test. Specifically, Morgart testified:
I would think [the definitive test] would be a great way of
showing that there was a connection if you had maybe
not just one chemical parameter but a whole host of
parameters and they showed up in the same – probably
not the same concentrations because of the dilution rates
that we talked about but also everything that was spilled,
let’s say, should travel through the same pathway. That
would be a great indicator that there was a connection.
R.R. at 631a. While recognizing the concentrations may not be the same between
Point A and Point B because of dilution, Morgart emphasized that an examination
14
of “the ratios would be important . . . .” R.R. at 632a (emphasis added). He
continued, “whether the chemicals . . . or the chemical parameters that were
together left [P]oint A and went to [P]oint B in the same ratios, then that would
indicate that there is a similar – there is a pathway.” R.R. at 632a (emphasis
added). He explained that “the tests would be quality related” and that not just
selective parameters would show up between both points. R.R. at 632a.
Eichler testified different chemicals function as tracers. R.R. at 948a.
When asked whether it would be important information if the same chemicals at a
leak site were later found in a complainant’s water, he testified:
[I]f you have a contaminant that, you know, is known
from a certain source area, comes out another location,
especially one type of parameter that isn’t naturally
occurring or isn’t found in that particular environment or
sometimes that maybe it is, but the concentrations and
the geochemistry have changed such that it has increased
or altered in some way, then yes.
R.R. at 948a.
The samplings taken from Kiskadden’s well water and the Yeager Site
revealed the presence of similar constituents. In addition, the Board extended
Kiskadden a rebuttable presumption that the chemicals found in Kiskadden's well
water were also present at the Yeager Site. On this basis, Kiskadden maintains he
definitively demonstrated a hydrogeological connection linking his well and the
Yeager Site.
However, Kiskadden’s argument misconstrues or oversimplifies the
witnesses’ testimony. Neither expert testified that the mere detection of certain
constituents would prove a hydrogeological connection. According to both
experts, where the constituents are naturally occurring and not unique or limited
to gas well waters, mere detection is not enough to prove a hydrogeological
15
connection. See R.R. at 632a, 948a. Absent a unique, distinguishing tracer, a
silver bullet so to speak, the experts opined there must be a qualitative analysis of
the parameters. See R.R. at 632a, 948a.
Yet, Kiskadden’s definitive test theory focuses on mere detection of
constituents, and it does not take into consideration the Board’s findings that many
of the constituents detected between his well water and the Yeager Site are
naturally occurring within Southwest Pennsylvania and are not unique or limited to
drilling activities. F.F. Nos. 77-79, 95. Contrary to Kiskadden’s assertions, the
testimony elicited does not wholly support his theory or show insufficient support
for Board’s findings to require reversal.
2. Naturally Occurring Constituents
Next, we examine the Board’s findings regarding naturally occurring
constituents in Pennsylvania’s groundwater. The Board found groundwater may
contain minerals, chemicals, biological substances and metals. F.F. No. 95.
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, particularly groundwater in Washington
County. F.F. No. 96. The Board found Kiskadden’s water chemistry type is
sodium bicarbonate. F.F. No. 123. Elevated sodium, TDS, pH and alkalinity is the
natural background condition of much of the groundwater in the area of
Kiskadden’s water well. F.F. No. 128. Methane can be naturally occurring in
wells in Washington County and southwestern Pennsylvania, either from coal
seams or from biological process involving carbon dioxide reduction. F.F. No.
16
154. Ethane can be produced by bacteria and can be present in biogenic gas; it can
also derive from coal seams. F.F. No. 156. Finally, the Board found the
consistency of Kiskadden’s water sample results over time indicated the water
quality is attributable to natural or background conditions, rather than spills or
releases related to oil and gas activities. F.F. No. 22. The Board’s findings are
well founded.
Perry opined that Kiskadden’s water supply is typical of groundwater
in Washington County. R.R. at 1762a. In making her determination, Perry relied
on National Water Information System (NWIS) and National Uranium Resource
Evaluation (NURE) databases. R.R. at 1762a. The NURE database contains
samples collected in the 1970s; the NWIS database includes samples collected over
many decades, prior to potential impacts from unconventional shale gas
development in the region. R.R. at 1763a, 1764a, 1885a.
Based on her research, Perry concluded TDS are a common problem
in Washington County. R.R. at 1885a. Perry would expect to see low levels of a
variety of metals in any groundwater samples from the county, including arsenic,
cadmium, chromium, copper, lead, mercury, selenium, silver and zinc. R.R. at
1885a. As for the inorganic constituents associated with natural gas drilling,
namely chloride, sodium, and barium, Perry testified that all of them are naturally
occurring in Washington County. R.R. at 1885a; see R.R. at 1776a. She testified
Kiskadden’s water chemistry type is sodium bicarbonate. R.R. at 1761a, 1799a.
She explained sodium bicarbonate is common for groundwater in valley settings in
the region, since glaciation. F.F. No. 125; R.R. at 1761a, 1844a. She also opined
it was common for some chloride to be present in valley groundwater. R.R. at
1765a, 1768a, 1886a, 1887a.
17
Kiskadden challenges Perry’s testimony because she did not limit her
investigation to the Greene and Washington formations in determining background
water quality as a basis for comparison to Kiskadden’s water supply. The Board
found the Kiskadden well is located in the Washington Formation. F.F. No. 117.
The Greene Formation overlies the Washington Formation. F.F. No. 118. The two
formations are separated by the Upper Washington Limestone. F.F. No. 118.
However, Kiskadden’s challenge to Perry’s testimony goes to the weight of
evidence, not to the sufficiency.
Perry acknowledged Kiskadden’s well is located at the bottom of the
Greene Formation and taps into the Washington Formation. R.R. at 1846a. She
readily admitted that she did not limit her investigation of Washington County
water quality results to wells in the Greene and Washington formations. R.R. at
1857a, 1861a-1862a, 1865a. Perry included data from all geologic formations in
her research. R.R. at 1862a, 1863a, 1865a. Those other formations were included
in the NURE and NWIS databases. R.R. at 1857a, 1869a.
Significantly, she explained water-type signature is not related to
geologic formations, but to topographic positions. R.R. at 1771a, 1883a.
“[W]ater-type signature is a function of residence time and is independent of
geologic formation.” R.R. at 1883a. “Residence time” refers to “time that the
water has spent in contact with rocks.” R.R. at 1761a. She continued: “The
different geologic formations are all similar in that they include different layers of
similar sorts of rocks, shale, limestone, sandstone. So chemically, the different
formations are similar to each other.” R.R. at 1883a. She testified her data
represented a regional pattern of background groundwater conditions for all of
18
Washington County. R.R. at 1865a, 1868a. Her research included data on wells
located in different topographic positions. R.R. at 1844a, 1870a.
Moreover, Eichler reached similar conclusions regarding Kiskadden’s
water chemistry. Eichler also testified Kiskadden’s water type is sodium
bicarbonate. R.R. at 729a. He explained bicarbonate is the result of an ion
exchange process that raises the pH and alkalinity. R.R. at 729a, 756a. Eichler
opined Kiskadden’s water profile of TDS, sodium, pH, alkalinity and the absence
of chlorides indicate natural softening, not gas-related activities. R.R. at 727a,
729a, 756a. It is “the natural condition of his water.” R.R. at 756a.
According to Eichler, naturally soft water is a documented
phenomenon in Washington County and Southwestern Pennsylvania, dating back
to the 1930s. R.R. at 850a-51a. “[H]igh calcium, the absence of chlorides but high
pH and high alkalinity” is typical for the region. R.R. at 729a. The quality of
Kiskadden’s water well can be explained as a “naturally occurring condition and
not as a result of what happened up at the Yeager [S]ite.” R.R. at 737a.
In addition, Eichler testified iron and aluminum, even at high levels,
are common for the area’s soil. R.R. at 801a-802a. Although concentrations of
different parameters in the soil would not necessarily be reflected in the same
concentrations in the groundwater, he testified Kiskadden’s water was heavily
contaminated with soil and sediment, which would explain the high levels of iron
and aluminum detected. R.R. at 802a. He further testified arsenic, cadmium,
chromium, copper, lead, mercury, selenium, silver and zinc at low levels naturally
occur in water supplies in Washington County. R.R. at 741a.
Moreover, all of the parties’ experts testified the gas in Kiskadden’s
well derived from carbon dioxide reduction, not from an oil- or gas-related source.
19
Eichler testified the methane in Kiskadden’s well water was “biogenic” in nature,
not “thermogenic,” meaning it did not derive from an oil- or gas-related source.
R.R. at 748a, 818a, 1090a. Eichler testified the biogenic source of the methane in
Kiskadden’s well may be attributable to a coal seam or from biological process
involving carbon dioxide reduction. R.R. at 730a. Dr. Sommer opined
Kiskadden’s methane is “carbon dioxide reduction gas.” R.R. at 1181a; accord
R.R. at 1090a-91a. Dr. Sommer did not testify the methane gas in Kiskadden’s
well was thermogenic or that it migrated from Range’s gas wells. Perry likewise
concluded the gas was “biogenic methane derived from carbon dioxide reduction.”
R.R. at 1798a. Perry testified Range is not the source of biogenic gas because
Range would be producing thermogenic gas. R.R. at 1798a.
Finally, both Perry and Dr. Sommer testified ethane may be produced
by bacteria and is present in biogenic gas. R.R. at 1158a, 1798a. Eichler testified
the ethane detected in Kiskadden’s water supply was clearly distinct from the
ethane found in Range’s gas well samples. R.R. at 748a, 849a.
3. Constituents Not Unique to Oil- and Gas-Related Activities
In addition to the naturally occurring constituents, the Board found
other constituents detected in Kiskadden’s water well were not unique to oil- and
gas-related activities. Kiskadden’s water well sporadically showed low levels of
volatile organic compounds,11 including acetone, t-butyl alcohol and chloroform.
F.F. No. 77. A methyl blue activated substance was also found in his water. F.F.
No. 114.
11
Volatile means the compound evaporates. R.R. at 808a.
20
Although such constituents are present in drilling fluids, the Board
found they are not unique to oil- and gas-related activities. F.F. at 77, 78; Board’s
Adjudication at 47. The Board further found it was not uncommon to find organic
compounds in Kiskadden’s water supply based on his proximity to Banetown
Road, agricultural operations, adjacent salvage yard, and vehicles on his property.
F.F. No. 78. Gasoline from vehicles is a known source of t-butyl alcohol. F.F. No.
83. Acetone is naturally occurring in the environment and is associated with the
degradation of organic constituents. F.F. No. 79. Acetone was also detected in a
field blank sample,12 which could be an indication that acetone was a field
contaminant. F.F. No. 81. Methyl blue activated substance is soap. F.F. No. 114.
Kiskadden’s own experts testified that t-butyl is not unique to drilling.
R.R. at 1371a, 1157a. Dr. Sommer conceded t-butyl alcohol may be found in
gasoline. R.R. at 1157a. Perry too testified that t-butyl alcohol, which was
detected in very low concentrations in Kiskadden’s well water, is not unique to
natural gas drilling. R.R. at 1792a. She testified anything that has gasoline may be
a source of t-butyl alcohol. R.R. at 1793a. She identified road runoff and the
presence of abandoned and functional vehicles on Kiskadden’s property as
potential sources. R.R. at 1793a.
Perry also testified acetone is not unique to natural gas drilling. R.R.
at 1792a. Acetone was detected in the blank sampling. R.R. at 1783a. She
testified “acetone is likely to be a laboratory contaminant and not actually present
in the spring.” R.R. at 1783a.
12
“A field blank sample is a sample that is filled with pure water and sent for analysis
under the same conditions as the actual sample in order to verify that proper handling procedures
are followed and to ensure that no field contaminants are in the sample.” F.F. No. 80.
21
In addition, Dr. Sommer conceded chloroform may be caused by
adding bleach to the well. R.R. at 1096a. The Department routinely recommends
that homeowners disinfect their wells with diluted Clorox or bleach. F.F. No. 82;
R.R. at 53a, see R.R. at 609a. At the direction of the Department, in June or July
2011, Kiskadden began pouring bleach into his well water in order to kill bacteria.
F.F. No. 82; R.R. at 914a-15a. Kiskadden admitted he did not dilute the bleach as
directed. F.F. No. 82; R.R. at 915a.
Carson testified that the methyl blue activated substance is soap. R.R.
at 479a. It is sometimes used in drilling to make water wetter, chemically, by
breaking down the surface tension. R.R. at 479a. Notwithstanding, Eichler
testified methyl blue activating substances are not unique to oil and gas activities,
but attributable to detergents and agricultural activities. R.R. at 803a. Methyl blue
activating substances have been detected in other groundwater samplings, with no
relationship to oil and gas activities. R.R. at 803a-04a.
Eichler further opined that the heavy metal constituents detected in
Kiskadden’s well are common and not unique to gas well waters. R.R. at 727a.
Eichler testified the vicinity of Kiskadden’s well is not pristine. R.R. at 729a.
There is a road, salvage yard, and agricultural activity nearby. R.R. at 730a.
Kiskadden stores boats, vehicles, and other items on his property. R.R. at 730a.
In addition, Yantko testified specific conductance,13 alkalinity,
barium, iron, magnesium, strontium, chlorides, sodium, are not unique to gas-
13
Yantko testified specific conductance is not a parameter, but a measurement of
“resistance ... through the water.” R.R. at 214a. A pristine stream would generate a low number,
whereas something impacted from mine drainage can be in the thousands. R.R. at 214a.
22
related waters. R.R. at 214a-16a, 238a. Yantko commonly sees these constituents
in background water quality analyses for private water supplies. R.R. at 214a-16a.
4. Concentration, Ratios and Absence of Chlorides
Given the fact that the constituents detected in both Kiskadden’s water
well and the Yeager Site were either naturally occurring or not unique to gas well
waters, their mere detection was insufficient, standing alone, to prove a
hydrogeologic connection. As a result, the Board focused on concentrations and
ratios of those very parameters to determine whether a connection existed. As
discussed above, the Department’s witnesses testified that ratios and
concentrations are important considerations to determining the existence of a
connection. R.R. at 632a, 948a.
However, the Board found that the concentrations and ratios of
pollutants found in Kiskadden’s water well were not typical of water impacted by
gas well related activity. F.F. No. 101. Gas well related waters typically exhibit
elevated chlorides, sodium, calcium concentrations, high TDS and heavy metals.
F.F. No. 97. In gas well related waters, concentrations of chloride typically exceed
sodium by two to three times. F.F. No. 99. However, the chlorides in Kiskadden’s
water were significantly lower than the level of sodium. F.F. No. 100. If sodium
levels in Kiskadden’s water were attributable to impacts from oil and gas-related
fluids, one would expect to see chloride levels 10 to 20 times higher. F.F. No. 102.
The Board also found the strontium ratio for Kiskadden’s water fell outside the
range for water from the gas producing formations at issue in this case – Marcellus
Shale and Burkett Shale. F.F. No. 159. Kiskadden’s strontium ratio fell within the
23
established range for water in the Pittsburgh coal seam. F.F. No. 160. These
findings are supported by expert testimony and test results.
Perry credibly testified useful indicators for oil and gas impacts on
groundwater are the dissolved salts, particularly chloride, as well as sodium,
calcium, barium and strontium, as well as volatile organic compounds. R.R. at
1761a. But, she opined, it is unlikely to see organics “without also seeing
chlorides at certain concentrations.” R.R. at 1761a. She explained, “the salts and
particularly the chloride are more likely to reach groundwater and migrate with
groundwater at higher concentrations than the organics.” R.R. at 1761a (emphasis
added). Because chloride is “a negatively charged ion, it interacts less with the
soil.” R.R. at 1841a; see R.R. at 1776a. In contrast, sodium interacts with the soil
and is absorbed into the soil structure. R.R. at 1776a, 1841a. Perry opined sodium
in oil and gas fluids stays with impacted soils after the release, whereas chloride is
more mobile and would travel. R.R. at 1776a, 1841a. Although Kiskadden’s
water was high in sodium, Perry opined the low concentrations of chloride found
in Kiskadden’s water did not indicate an impact from oil and gas operations. R.R.
at 1765a, 1768a, 1886a, 1887a. She concluded the concentrations of contaminants
found in Kiskadden’s water were within the range in Washington County. R.R. at
1767a, 1889a.
Rubin conceded sodium tends to remain in the soil, while the
chlorides will migrate through the groundwater. R.R. at 1366a. Rubin also
acknowledged Kiskadden’s strontium level fell within the established range for
waters from the Pittsburgh Coal Seam. R.R. at 1361a-62a.
Yantko testified, based on studies involving random samplings of
flowback and frac fluids, “chloride, sodium, conductivity, TDS were excellent
24
tracers to look for in water pollution incidents.” R.R. at 46a. He opined chlorides
are the most concentrated constituent in gas-related fluids. R.R. at 46a.
In addition, Morgart testified the Yeager Site leaked brine water,
which is made of sodium chloride. R.R. at 657a. According to Morgart, chlorine
is “the parameter that is in by far the highest concentration in all of these waste
fluids.” R.R. at 736a. He explained chlorides are very mobile. R.R. at 654a. “If
there is a release from the impoundment, the chlorides are going to move with it.”
R.R. at 654a. Thus, if Kiskadden’s well water was impacted by what was released
at the Yeager Site, Morgart expected to see higher concentrations of chlorides.
R.R. at 654a. Morgart opined that he did not see the expected profile of
contaminants in Kiskadden’s water well. R.R. at 736a. Although there was a rise
in TDS, there was not an increase in chlorides. R.R. at 736a.
Furthermore, Eichler testified that gas-related waters contain not just
chloride, sodium, and calcium, but a plethora of metallic and nonmetallic
constituents in high concentrations. R.R. at 727a. However, he explained these
other constituents can be found naturally in groundwater, in “much, much lower”
concentrations. R.R. at 727a. When the concentration levels are low, it becomes
“impossible to distinguish that value as groundwater versus an impact from . . . a
gas well drilling operation or fracking operation.” R.R. at 727a. According to
Eichler, when the constituents, even in the waste water fluids themselves, are in
such low concentrations and are naturally occurring, it is extremely difficult to
conclude it came from the gas well site as opposed to just a background level.
R.R. at 824a.
Eichler addressed not just the specific constituents in Kiskadden’s
water, but the concentrations of those constituents. He explained chloride and
25
sodium were dominant constituents leaked at the Yeager Site. R.R. at 823a, 824a,
826a, 827a-828a. Eichler testified, had Kiskadden’s well been contaminated by
gas-related waters, he expected to see “a chloride value 10, 20 times higher.” R.R.
at 727a; accord R.R. at 823a, 824a. However, higher levels of chlorides were not
detected in Kiskadden’s water supply. R.R. at 824a.
Indeed, the test results showed Kiskadden’s contaminant levels in his
water supply remained relatively the same.14 See R.R. at 4586a-4605a, 4673a-
4706a, 4865a-4911a, 4912a-4960a, 4961a-4976a. Significantly, Kiskadden’s
chloride levels remained steady at low levels, while his sodium levels were
consistently high:
Test Date Chloride Sodium Record Location
6/6/2011 44.3 mg/l 297 mg/l R.R. at 4587a, 4597a
6/9/2011 33.8 mg/l 305 mg/l R.R. at 4865a
7/27/2011 39.2 mg/l 285 mg/l R.R. at 4932a, 4933a
1/26/2012 41.6 mg/l 163 mg/l R.R. at 4675a, 4681a, 4682a
3/27/2012 41.2 mg/l 265 mg/l R.R. at 4962a, 4970a
The quality of Kiskadden’s water supply consistently showed the
same profile throughout testing: “high TDS, high sodium, low chlorides, calcium
and high pH and alkalinity.” R.R. at 729a. In contrast, Yeager Springs
demonstrated a pattern for contamination caused by the Yeager Site.
14
The Board noted the parties did not introduce any water samplings more recent than
March 2012. Board’s Adjudication at 47.
26
5. Yeager Springs
Indeed, the Board found Yeager Springs served as a case study for
contamination from the Yeager Site. F.F. No. 43; R.R. at 1846a; see R.R. at 802a.
Yeager Springs are two springs situated northwest, approximately 600 feet away
from the Yeager Site. F.F. No. 37. Yeager Springs were contaminated as a result
of a March 2010 leak from the drill cuttings pit. F.F. 38; R.R. at 29a, 49a, 804a,
851a-52a, 1680a, 1778a. The Board found the manner in which they were
impacted by contamination from Range’s operation was instructive in determining
whether Kiskadden’s water supply was also impacted. F.F. No. 165.
Yeager Springs had pre-drill and post-drill information. R.R. at 802a,
1846a. The experts agreed that a comparison of pre-drill water quality information
to post-drill results would provide direct evidence of any changes caused by oil and
gas related contamination. R.R. at 1845a. They compared pre-drill and post-drill
information for Yeager Springs as an “indicator of what one would expect from oil
and gas impacts on groundwater.” R.R. at 1846a.
Comparing Yeager Springs’ pre-drill and post-drill information,
Yantko and Eichler testified Yeager Springs was contaminated based on elevations
of three main parameters: chloride, sodium and TDS. R.R. at 49a, 804a, 829a.
Yeager Springs exhibited a pronounced increase in TDS and chlorides after
contamination. R.R. at 235a, 735a, 736a, 804a, 829a. Eichler testified Yeager
Springs served as a “window . . . in the groundwater” after contamination. R.R. at
804a.
However, Eichler testified Yeager Springs is not an “allegory” for
Kiskadden’s well. R.R. at 736a. Although high levels of TDS and sodium were
detected in Kiskadden’s well water, high levels of chlorides were not. R.R. at
27
736a, 818a. Eichler could not identify any way in which sodium would be
transported with the groundwater, but not the chloride that was also in the
flowback water or the fracturing fluids at the Yeager Site. R.R. at 851a. He
opined the high levels of TDS and sodium found in Kiskadden’s water were
naturally occurring. R.R. at 824a. He concluded Kiskadden’s water did not show
characteristics of gas well contamination. R.R. at 824a.
Perry also relied upon the contaminated Yeager Springs as a basis for
comparison to Kiskadden’s well. She looked at Yeager Springs because it
provided an actual situation where groundwater was contaminated after a release
from the Yeager Site. R.R. at 1778a, 1890a. She testified: “Yeager Springs
indicated what parameters from the Yeager [S]ite migrated in the groundwater
system. So that’s how I used the data from Yeager Springs.” R.R. at 1846a.
Perry testified the primary indicators of contamination at Yeager
Springs were chloride, sodium, strontium, barium, calcium and TDS, with chloride
being the highest. R.R. at 1778a-79a, 1784a. The pre- and post-drill samplings
showed dramatic increases in the concentrations of these constituents:
Yeager Springs One Yeager Springs Two
8/11/2009 12/22/2010 12/22/2010 12/22/2010
Pre-drill Post-drill Post-drill Post-drill
Chloride 3.7 mg/l 981.2 mg/l 2.5 mg/l 459.6 mg/l
Sodium 6.602 mg/l 58.1 mg/l 4.176 mg/l 23.1 mg/l
Strontium .304 mg/l 1.13 mg/l .232 mg/l .750 mg/l
Barium .071 mg/l .374 mg/l .046 mg/l .194 mg/l
Calcium 98.973 mg/l 448 mg/l 108.507 mg/l 287 mg/l
TDS 301 mg/l 1720 mg/l 323 mg/l 1110 mg/l
28
R.R. at 3950a, 4465a; see R.R. at 1779a; see F.F. Nos. 39-41. Based on this data,
Perry determined Yeager Springs were impacted by oil and gas operations. R.R. at
1779a.
Perry expected to see similar parameters in Kiskadden’s well water if
it too was impacted by oil and gas operations. Although similar constituents were
detected, the ratios and concentrations were not similar. R.R. at 1799a. Instead,
she opined the concentrations contained in Kiskadden’s water supply were
reflective of background water for Washington County. R.R. at 1765a, 1768a,
1886a, 1887a.
Notwithstanding, Kiskadden maintains his post-drill water chemistry
mirrors that of Yeager Springs. Petitioner’s Brief at 53. He claims that the Board
erred by not using the pre-drill data for Yeager Springs as a pre-drill baseline for
his well.
Unfortunately, Kiskadden did not have his water tested before Range
began drilling. R.R. at 34a. Consequently, there was no pre-drill baseline
information for his well. F.F. No. 119; R.R. at 34a; 310a, 802a, 1076a. The Board
found that hillside springs, such as Yeager Springs, are not a good comparison of
background water quality for wells in valley settings, like Kiskadden’s, because
they have different water signature types due to different resident times, i.e., the
amount of time the water has spent in contact with rocks. F.F. No. 131. Because
the water chemistry is different, pre-drill samples for the Yeager Springs do not
serve as accurate indicators of the pre-drill water quality of Kiskadden’s well. F.F.
No. 136.
Indeed, although Perry testified Yeager Springs provided an indicator
of what parameters to expect after oil and gas well contamination, she explained
29
the pre-drill data for Yeager Springs would not be representative of Kiskadden’s
pre-drill well water because they have different water-type signatures. R.R. at
1774a. Instead, Perry relied on “regional patterns as an understanding of what
would be expected” in Kiskadden’s water well as a baseline. R.R. at 1845a.
Perry explained that “water-type signature is associated with the
residence time in the groundwater system.” R.R. at 1844a. “[Water] originates as
rainwater with very little contact with rocks. And as it moves through the
groundwater flow system, as time passes, there is more interaction with rocks. It
tends to pick up more minerals.” R.R. at 1761a.
Perry testified water-type signature is related to topographic position.
R.R. at 1771a. Yeager Springs, which sits on a hilltop, has a different water-type
signature than Kiskadden’s well water, which sits in a valley. R.R. at 1771a,
1890a. Both Perry and Eichler testified hilltop water is typically characterized as
calcium bicarbonate, whereas valley water is characterized as sodium bicarbonate.
R.R. at 755a, 1761a, 1771a, 1773a.
Perry testified general patterns of water types in different topographic
positions and different ages of groundwater provide an appropriate frame of
reference. R.R. at 1845a. According to Perry, in most instances, ground water on
hilltops and hillsides tend to be younger than groundwater in valleys. R.R. at
1844a. Perry classified hilltop spring water as “young” water, meaning near its
recharge area at the top of the hill. R.R. at 1890a. In contrast, she described
Kiskadden’s water supply as “very old water,” i.e., it has spent more time in the
groundwater system, with more interaction with rocks. R.R. at 1844a-1845a, see
R.R. at 1861a. Perry testified concentration levels for contaminants, like chloride,
in “near surface water” or “young water” would be much lower than it is in deeper
30
water wells. R.R. at 1681a. The low chloride levels detected in Yeager Springs
One and Two prior to drilling were consistent with young water, whereas the
increased elevations in the post-drill samplings were indicative of gas-related
contamination. R.R. at 1890a. Yet, Kiskadden’s chloride levels, which were
between 33.8 mg/l to 44.3 mg/l, were well below what was detected at Yeager
Springs after contamination, which were between 459.6 mg/l and 981.2 mg/l.
6. Neighboring Wells and Springs
The water quality of other neighboring springs and wells also refuted
a hydrogeological connection between the Yeager Site and Kiskadden’s well. As
Perry testified, “chemistry in the groundwater provides information about
groundwater migration directions.” R.R. at 1789a. If there was a southwest flow,
Morgart testified, any release of the impoundment into the groundwater would go
through the springs and wells located in between the Yeager Site and Kiskadden’s
property. R.R. at 655a.
Kiskadden’s well sits southwest of the Yeager Site. Situated in
between are properties owned by the Voyles and Haney families. F.F. No. 110, see
R.R. at 7136a. Yet, the Board found Voyles and Haney water supplies, which the
Department tested in November 2010 and February 2011, showed lower levels of
chlorides, sodium, TDS and pH than the samples taken at Kiskadden’s well. F.F.
at 112.
In February 2011, the Department sampled and tested Voyles’ water
supply by taking water from a spring on the property as well as water from the
basement sink. As for the sample taken from Voyles’ spring, Yantko testified the
chloride level was 12 mg/l, sodium was 8.107, and pH was 7.3. R.R. at 44a; see
31
R.R. at 8413a. The Department did not consider the water polluted or impacted by
Range because the numbers were below the recommended maximum contaminant
levels (MCLs). R.R. at 44a. As for the sample taken from the basement, Yantko
testified chloride was 22.9 mg/l, sodium was 57.3 mg/l and pH was at 7.8. R.R. at
44a; see R.R. at 8414a. Although Yantko testified the sodium level was high,
chloride remained below the recommended levels. R.R. at 44a-45a.
Regarding Haney’s water supply, which the Department sampled and
tested in November 2011, Yantko testified TDS were 468 mg/l; chloride was 12.3
mg/l; sodium was 25.2 mg/l; and pH was 7.4. R.R. at 45a; see R.R. at 8410a-11a.
Again, Yantko testified these levels were not indicative of drilling activities. R.R.
at 45a.
The Board found springs in particular provide helpful information
about groundwater migration. F.F. No. 113. The water samplings between the
Yeager Site and Kiskadden’s well had lower concentrations of contaminants than
Kiskadden’s well. In contrast, the contamination in Yeager Springs after the
March 2010 leak provided evidence of groundwater moving in a northwest
direction. As the Board reasoned, this data refutes the theory that the
contamination is moving southwest towards Kiskadden’s well through a series of
fractures. Board’s Adjudication at 38.
The Board also found Kiskadden’s water chemistry is similar to that
of his mother’s, Grace Kiskadden, in that they both show high levels of sodium
and alkalinity, high pH, lower chlorides and similar TDS, calcium and methane.
F.F. Nos. 138, 139. Grace Kiskadden’s well is located approximately 0.2 miles
upstream from Kiskadden’s well, along Bane Creek Valley. F.F. No. 137.
32
However, a topographic ridge to the east of her well acts as a barrier,
hydrogeologically separating her well from Range. F.F. Nos. 140, 141.
In support, Eichler opined Kiskadden’s water well is similarly situated
to Grace Kiskadden’s well, as they are both in the Bane Creek Valley. R.R. at
737a. Eichler opined the water quality between the two wells look virtually
identical. R.R. at 737a. Yet, Eichler testified Grace Kiskadden’s well was not
influenced by the activities at the Yeager Site. R.R. at 737a. As Morgart testified,
Grace Kiskadden’s well is hydrogeologically separated from the Yeager Site by a
ridge, while Kiskadden’s well is not. R.R. at 612a-13a. Ridges act as geologic
barriers that prevent water and other fluids from effectively crossing. R.R. at 613a.
The similarity between Kiskadden’s well water and his mother’s well water
provides additional support for the Board’s finding that the condition of
Kiskadden’s water is naturally occurring.
7. Suite Codes
Notwithstanding, Kiskadden argues the Board assigned too much
weight to the absence of chloride. He asserts chloride is not the sole parameter
examined in water contamination investigation. Indeed, the Department utilizes a
standard analysis code in its water supply investigations called a “946 Suite Code.”
R.R. at 837a. The 946 Suite Code contains parameters associated with oil and gas
development, including: specific conductance, pH, alkalinity, TDS, hardness,
calcium, magnesium, sodium, potassium, chloride, sulfate, arsenic, barium, iron,
manganese, strontium, zinc, aluminum, lithium, selenium, residue, and turbidity.
R.R. at 837a.
33
However, the Board and the experts examined these other
constituents. As discussed above, they are naturally occurring in Washington
County groundwater or are not unique to oil and gas operations. Although many of
these constituents were detected in Kiskadden’s well water, they were not detected
in such concentrations and ratios indicative of oil and gas operations. Based on the
credible expert testimony regarding the importance of chlorides as well as pre-drill
and post-drill samplings from the Yeager Springs, which showed a significant
increase in chloride concentrations, the Board’s finding that chloride was a key
contaminant is well founded.
8. Hydrogeological Connection - Pathway
Finally, the Board found Kiskadden did not show how the
contaminants physically traveled from the Yeager Site to his well. Board’s
Adjudication at 37-39. Specifically, the Board found that the shale rock near the
Yeager Site is a poor transmitter of water. F.F. No. 161. Fractures tend to fill with
clay. F.F. No. 161. Siltstone and limestone in the Greene and Washington
Formations tend to be poor transmitters of water. F.F. No. 162. Instead of moving
through rock units in the area of Kiskadden’s well, the Board found groundwater
tends to move laterally along the bedding planes. F.F. No. 164. The
contamination in Yeager Springs provided evidence of groundwater moving in a
northwest direction. Board’s Adjudication at 38.
Although Kiskadden’s expert, Rubin, testified that a hydrogeological
connection between the Yeager Site and Kiskadden’s well existed through
underground network of fractures, surface connection, and deep migration
connection, the Board rejected Rubin’s testimony as not credible. Id.
34
Instead, the Board relied on the testimony of Morgart and Perry.
Morgart examined the geology and hydrogeology of the Yeager Site as a whole
and then evaluated whether there was a hydrogeological connection between the
Yeager Site and Kiskadden’s water supply. Morgart testified groundwater mimics
topography in Western Pennsylvania. R.R. at 598a. Although Morgart testified it
was “possible” that fluid discharged at the Yeager Site could end up in
Kiskadden’s water, he qualified saying it was not likely given the “impermeable
nature of the rocks in question.” R.R. at 641a. He opined there was no obvious
hydrogeological connection between Kiskadden’s well water and the Yeager Site.
R.R. at 648a. He explained they would need to be in a “similar lithic unit.” R.R.
at 648a.
Perry reached a similar conclusion. Perry testified “formations in
Southwestern Pennsylvania are layers of a variety of different lithologies,” such as
shale and limestone. R.R. at 1885a. Perry examined regional studies that
characterized the groundwater flow system in Southwestern Pennsylvania and
information at the Yeager Site, including the location of the numerous springs.
R.R. at 1783a. At the Yeager Site, the layers of shale and limestone are considered
less permeable. R.R. at 1784a. She testified groundwater originates as rainwater,
falls on the ground surface, percolates into the subsurface and moves through
various layers of geologic materials until it reaches a more impermeable layer, at
which point it flows horizontally, as opposed to percolating vertically. R.R. at
1784a. Groundwater will continue flowing along that layer horizontally until it
intersects the ground surface and manifests as a spring. R.R. at 1784a.
Perry testified that the groundwater pathway from the Yeager Site is
not towards Kiskadden’s water well. R.R. at 1762a. She explained that the strata
35
of lower permeability in the vicinity of the Yeager Site would prevent groundwater
from penetrating vertically and would instead cause the groundwater to perch on
top and travel horizontally in the direction of the Yeager Springs, which are
northwest from the Yeager Site. R.R. at 1785a.
Kiskadden challenges the Board’s reliance on Perry’s testimony
because she conceded releases of oil and gas fluids had the “potential” to reach
shallow groundwater within 500 feet of the surface. However, when read within
the context, this testimony did not pertain to the hydrogeology of the Yeager Site
or the surrounding area. R.R. at 1873a. Perry expressed the opinion in an article
that had nothing to do with the Yeager Site. R.R. at 1873a. When questioned
whether or not a leak or release of oil and gas fluids could impact shallow
groundwater approximately 500 feet deep, she responded it “depends” because
“it’s a very site specific situation.” R.R. at 1873a. She explained, “I provided the
depth of 500 feet as a definition of shallow groundwater to distinguish it from the
deeper saline groundwaters.” R.R. at 1873a. She reiterated, “It would really
depend on the site-specific situation.” R.R. at 1873a. Perry did not recant her
testimony that the strata of lower permeability in the vicinity of the Yeager Site
would prevent groundwater from penetrating vertically and would instead cause
the groundwater to perch on top and travel horizontally in a northwest direction,
not southwest towards Kiskadden’s well. R.R. at 1785a.
Notwithstanding, it was Kiskadden’s burden to prove a
hydrogeological connection between the Yeager Site and his water supply. It was
not Range’s burden to prove its non-existence. Ultimately, the Board found
Kiskadden did not meet his burden.
36
Upon review, we conclude that the Board’s findings are supported by
substantial evidence. Although we recognize that the record contains some
evidence that supports Kiskadden’s position, it also contains substantial evidence
that supports the Board’s findings and its ultimate determination that Kiskadden
did not prove the existence of a hydrogeological connection. While Kiskadden
points to evidence in his favor, he falls short of demonstrating that the Board’s
findings are not supported by substantial evidence. Simply because the Board
could have made other findings based on the evidence does not mean the Board’s
findings are not properly supported. The Board is the sole finder of fact and has
discretion regarding witness credibility, weight of the evidence, and resolution of
conflicts of evidence, not this Court. See Brockway. In our appellate role, we
“will not reevaluate the credibility of witnesses, any conflicts of evidence or the
weight the Board afforded the evidence.” Eureka Stone Quarry, Inc. v.
Department of Environmental Protection, 957 A.2d 337, 349 (Pa. Cmwlth. 2008).
As the Board’s findings are supported by substantial evidence, we cannot disturb
them on appeal.
B. Capricious Disregard of the Evidence
Next, Kiskadden maintains that the Board capriciously disregarded
evidence. According to Kiskadden, the Board’s adjudication demonstrates a
“consistent disregard for critical pieces of evidence” and “is based upon an
exclusionary review of the evidence.” Petitioner’s Brief at 63.
Specifically, he claims the Board ignored competent evidence
demonstrating the existence of a hydrogeological connection between his water
well and the natural gas operations occurring at the Yeager Site. Kiskadden
37
maintains the definitive test clearly established the transport of constituents from
the Yeager Site to his well. Yet, the Board’s adjudication is bereft of any
discussion or acknowledgement of this theory. Kiskadden also asserts the Board
disregarded contaminants in Kiskadden’s water as not attributable to activities at
the Yeager Site, in defiance of the presumption.
Further, Kiskadden contends that the Board disregarded evidence
regarding fractures and found the layers impermeable. He claims the Yeager Site
is well-fractured. Even Perry conceded that oil and gas fluids had the potential to
reach shallow groundwater. R.R. at 1873a-74a.
“Review for capricious disregard of material, competent evidence is
an appropriate component of appellate consideration in every case in which such
question is properly brought before the court.” Leon E. Wintermyer, Inc. v.
Workers' Compensation Appeal Board (Marlowe), 812 A.2d 478, 487 (Pa. 2002).
Capricious disregard occurs only when the fact-finder deliberately ignores
relevant, competent evidence. Id. Where substantial evidence supports the
findings, and those findings in turn support the conclusions, it should remain a rare
instance where an appellate court disturbs an adjudication based on capricious
disregard. Wintermyer.
We may conclude that a fact-finder has capriciously disregarded
competent evidence “when the unsuccessful party below has presented
‘overwhelming evidence’ upon which the adjudicator could have reached a
contrary conclusion, and the adjudicator has not satisfactorily addressed that
evidence by resolving conflicts in the evidence or making credibility
determinations that are essential with regard to the evidence.” Balshy v.
Pennsylvania State Police, 988 A.2d 813, 835-36 (Pa. Cmwlth. 2010) (quoting
38
Grenell v. State Civil Service Commission, 923 A.2d 533, 538 (Pa. Cmwlth.
2007)). “In other words, where there is strong ‘critical’ evidence that contradicts
evidence supporting a contrary determination, the adjudicator must provide an
explanation as to how it made its determination.” Id. at 836.
However, the fact-finder “is not required to address each and every
allegation of a party in its findings, nor is it required to explain why certain
testimony has been rejected.” Balshy, 988 A.2d at 836. The pertinent inquiry is
whether the Board’s findings are supported by substantial evidence. Id. “The
findings need only be sufficient to enable the Court to determine the questions and
ensure the conclusions follow from the facts.” Id.
Our review of the record in this matter reveals that the Board did not
improperly disregard evidence presented by Kiskadden. Rather, the Board
considered the evidence and made determinations as to weight and credibility,
which are not subject to appellate review. Although the Board did not mention the
“definitive test” by name, it is manifest that the Board considered and rejected this
theory in its adjudication.
The Board found that a number of constituents found in the sampling
at the Yeager Site were also present in Kiskadden’s water. F.F. No. 94. However,
the Board also found that many of the constituents were naturally occurring or not
unique to drilling. F.F. Nos. 77, 95; Board’s Adjudication at 47. Thus, the Board
concluded: “their mere detection in a sample is not enough to prove a
hydrogeologic connection.” Board’s Adjudication at 47 (emphasis added). For
this reason, the Board focused on quality, i.e. concentrations and ratios, as opposed
to mere detection of contaminants at both sites. Ultimately, the Board found the
parameters of contaminants in Kiskadden’s water well did not reflect oil and gas
39
operations. As addressed above, the Board’s findings in this regard are well
supported by substantial evidence. These findings undermine Kiskadden’s
“definitive test” theory and support the Board’s conclusion that Kiskadden did not
sustain his burden of proving a connection through water chemistry.
Insofar as Kiskadden asserts the Board failed to employ the
presumption that contaminants in his well water were present at the Yeager Site,
the presumption was rebuttable and rebutted. A rebuttable presumption is not
absolute or unassailable. Commonwealth v. McNeil, 439 A.2d 664, 667 (Pa. 1981).
It is merely an assumption of fact until it is disproved. Id. Contrary to
Kiskadden’s assertions, the Board did not act in defiance of the presumption by
allowing opposing parties to disprove the presumption.
As for the fractures, Rubin attempted to show a hydrogeological
connection between the Yeager Site and Kiskadden’s well through an underground
network of fractures, surface connection, and deep migration connection.
However, the Board did not find Rubin’s testimony credible. The Board explained
“Rubin’s theory is dependent on the fractures that he observed in the drill cuttings
pit continuing underground. However, [he] admitted that fractures can ‘anneal’ or
close with depth.” Board’s Adjudication at 37. Clearly, the Board considered
Kiskadden’s evidence of a hydrogeological connection, but ultimately determined
it was outweighed by contrary evidence offered by the Department and Range. A
determination that evidence is not credible or is outweighed by conflicting
evidence is not a capricious disregard of that evidence. Balshy, 988 A.2d at 836.
40
C. Speculative Evidence
Finally, Kiskadden asserts the Board improperly relied on speculative
evidence when noting the existence of other factors that could reasonably explain
his water well pollution. Contrary to Kiskadden’s assertion, the Board acted well
within its fact-finding role when it considered other possible explanations for the
condition of Kiskadden’s well water. The constituents detected in Kiskadden’s
water have possible sources on or nearby his property and were not prominent
components of sources found at the Yeager Site. Kiskadden testified his family
operated a salvage yard on the property from the 1960s before ceasing operations a
few years ago. R.R. at 904a. Kiskadden testified his family removed gas tanks
and drained fluids from salvaged cars on the property. R.R. at 904a. They stored
the fluids in 55-gallon drums for reuse. R.R. at 904a. His family also washed cars
on the property. R.R. at 904a. He testified he has a septic system on the property,
which was never serviced. R.R. at 904a. Kiskadden also admitted his well has not
been properly maintained, tested or protected from contamination from operations
on his own property. R.R. at 902a.
Moreover, Perry testified Kiskadden’s well is not isolated from the
ground surface and the cap is not sealed, which provides a mechanism for surface
water infiltration into the well. R.R. at 1792a. She testified the occurrences of
mud on his well wires as well as fecal coliform in the water supply are both
indicators of surface infiltration. R.R. at 1791a-92a.
The Board merely noted the existence of other factors that could
reasonably explain Kiskadden’s water well pollution. Such evidence was not
offered to prove that these other factors were the source of contamination, but to
rebut or cast doubt over Kiskadden’s evidence that Range was the only possible
41
cause of the contamination. Contrary to Kiskadden’s assertions, the Board did not
err by considering this evidence.
IV. CONCLUSION
The safety of Pennsylvania’s water is essential to Pennsylvania’s
welfare. See Section 2(a)(1) of the Pennsylvania Safe Drinking Water Act15 (“pure
drinking water is essential to the public health, safety and welfare . . . .” ); Section
4(2) of the Clean Streams Law16 (“Clean, unpolluted water is absolutely essential
. . . .”). Potential contamination from oil and gas operations poses a serious threat
to the health of our residents, environment and economy. We must vigilantly
guard against such perils.
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 list of leaks and spills at the Yeager Site is
troubling. Although there is little dispute that the activities at the Yeager Site
impacted the environment and contaminated the soil and adjacent springs, the issue
before this Court was whether Range’s activities impacted Kiskadden’s water well.
To that end, it was Kiskadden’s burden to prove that the Yeager Site
was more probable than not the source of contamination of his water well. We
have examined the evidence in this matter very carefully. Although Kiskadden
presented a great deal of evidence, unfortunately, that evidence did not carry the
day before the Board. Kiskadden’s evidence did not outweigh strong, conflicting
15
Act of May 1, 1984, P.L. 206, 35 P.S. §721.2(a)(1).
16
Act of June 22, 1937, P.L. 1987, added by the Act of August 23, 1965, P.L. 372, as
amended, 35 P.S. §691.4(2).
42
evidence that the contaminants in his well water, particularly in the ratios and
concentrations detected, were naturally occurring and not unique to oil and gas
activities. Moreover, his evidence did not prevail over other credible evidence
refuting the existence or likelihood of a physical pathway between his well and the
Yeager Site.
Taking into consideration our appellate role and the weight and
credibility assigned to the evidence by the Board, we are constrained to conclude
that the Board’s findings are supported by substantial evidence and that the Board
did not capriciously disregard the evidence or improperly rely on speculative
evidence. The Board’s findings support the conclusion that Kiskadden did not
prove by a preponderance of the evidence that a hydrogeological connection exists
between his water well and Range’s operations at the Yeager Site.
Accordingly, we affirm.
MICHAEL H. WOJCIK, Judge
43
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Loren Kiskadden, :
: No. 1167 C.D. 2015
Petitioner :
:
v. :
:
Pennsylvania Department of :
Environmental Protection, :
:
Respondent :
ORDER
AND NOW, this 26th day of October, 2016, the adjudication of the
Pennsylvania Environmental Hearing Board, dated June 12, 2015, is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Loren Kiskadden, :
Petitioner :
: No. 1167 C.D. 2015
v. :
: Argued: April 13, 2016
Pennsylvania Department of :
Environmental Protection, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
DISSENTING OPINION BY
JUDGE McCULLOUGH FILED: October 26, 2016
The Environmental Hearing Board’s (Board) grant of a rebuttable
evidentiary presumption to Kiskadden established that the chemicals found in his
well water were contained in products used at the “Yeager Site.” Because the
Board did not find that this presumption was rebutted, I must respectfully dissent
from the thoughtful and well-written Majority.
Loren Kiskadden (Kiskadden) owns residential property and his well
water became contaminated. At the same time, Range Resources-Appalachia, LLC
(Range) was performing oil and gas drilling operations at the “Yeager Site,” which
is located approximately a half of a mile away. Perhaps significantly, the Yeager
Site is situated on a hilltop and the Kiskadden property is situated down below, in a
valley. The Yeager Site has a prolific history of numerous leaks and spills – at
least eighteen that we know of. (Findings of Fact at Nos. 45-64; Adjudication at 3-
4.) Kiskadden filed a complaint with the Department of Environmental Protection
(Department), and water quality testing was conducted by the parties and the
Department.
Eventually, the Department denied Kiskadden relief. Although the
Department concluded that Kiskadden’s well water was contaminated, the
Department determined that the pollutants in the water supply did not originate
from the Yeager Site. Kiskadden then appealed to the Board, and after Range
failed to respond to a discovery request, the Board granted Kiskadden a rebuttable
evidentiary presumption. (Adjudication at 4-5.)
Specifically, this presumption “eliminated [Kiskadden’s] need to
prove that chemicals found in his well water were contained in products used at the
Yeager Site.” (Adjudication at 6.) Stated differently, the Board presumed that the
chemicals discovered in Kiskadden’s well water were present at the Yeager Site,
the origin of the contamination. 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. Nevertheless, the Board concluded that Kiskadden failed to
establish that a hydrogeological connection existed between the well and the
Yeager Site, i.e., that the chemicals traveled from the Yeager Site to the well.
During the hearing before the Board, Kiskadden adduced volumes of
empirical data showing a highly positive (if not nearly perfect) correlation between
PAM - 2
the constituents found at the original place of the contamination, the Yeager Site,
and the contamination at the well. By no means an exhaustive list, the following
elements and/or compounds – sometimes called “parameters” – were located at
both the Yeager Site and in the well water: iron, chloride, sulfate, strontium,
magnesium, methane, ethane, aluminum, barium, sodium, manganese, cobalt,
chromium, copper, silicon, lithium, tin, vanadium, zinc, boron, titanium, oil and
grease, ethyl benzene, propane, o-exylene, m-exylene, p-exylene, sulfur, uranium,
toluene, acetone, and arsenic. (See Kiskadden’s brief at Appendix A-C.) The
Board found, as a matter of fact, that “[a] number of constituents found in
sampling at the Yeager Site were also present in [Kiskadden’s] water.” (Findings
of Fact at No. 94.) As Kiskadden observes in his brief, “the parameters detected in
the soil samples [of the Yeager Site] mirror the parameters detected in
[Kiskadden’s] water in almost every instance, including detections of both heavy
metals and volatile organic compounds.” (Kiskadden’s brief at 26; see
Reproduced Record (R.R.) at 1103a-05a.)
The Department’s witnesses, Michael Morgart, a geology and
hydrogeology expert, and Alan Eichler, an expert on water investigations and
isotopic gas evaluations, both testified that a hydrogeological connection can be
established if a contaminant found at Point A (the Yeager Site) is discovered at
Point B (the well).
Morgart testified:
I would think [this] would be a great way of showing that
there was a connection if you had maybe not just one
chemical parameter but a whole host of parameters and
they showed up in the same – probably not the same
concentrations because of the dilution rates that we
talked about but also everything that was spilled, let’s
PAM - 3
say, should travel through the same pathway. That would
be a great indicator that there was a connection.
* * *
Q. . . . Do there exist any definitive tests that you know,
as a professional geologist, that would enable you to
definitively say this is where the fluid went in this
particular area given the geology? . . .
A. . . . [T]he tests would be quality related, if you had a
sample from point A and the same fluid comes out at
point B, that would indicate that a lot of parameters from
the spill discharge, whatever you want to call it, at point
A, came to point B, not just selective ones showed up
there.
(R.R. at 631a-32a.)
Eichler testified:
Q. And so, would it ever . . . be important information
that you have a potential site of a leak, if the same
chemicals were at that leak and you then later find them
in a complainant’s water source, is that an important
piece of information in contaminant transport and
groundwater flow and pathways?
A. Oh, it is extremely important.
Q. Why is that?
* * *
A. [If] you have a contaminant that, you know, is known
from a certain source area, [and] comes out another
location, especially one type of parameter that isn’t
naturally occurring or isn’t found in that particular
environment or sometimes that maybe it is . . . then yes.
It is always best to look at more than one parameter. To
hang your hat on one parameter when there are multiple
ones out there, it just doesn’t utilize all your data wisely.
PAM - 4
(R.R. at 947a-48a.)
Given Kiskadden’s empirical data and the testimony of Morgart and
Eichler, Kiskadden adduced sufficient evidence to establish a hydrogeological
connection between the Yeager Site and the well. The unrebutted presumption that
the chemicals found in Kiskadden’s well water were present at the Yeager Site
solidifies the fact that Kiskadden met his burden of proof. When considered in
tandem, the presumption, Kiskadden’s empirical data, and other evidence conjoin
to constitute conclusive evidence that there was a hydrogeological connection.
Indeed, the Board found that Kiskadden’s water exhibits high levels of sodium and
total dissolved solids, which was typical of water chemistry in gas well operations.
(Findings of Fact at Nos. 97-98.)
Despite all this proof, the Board found that “[a] number of the
constituents found in [Kiskadden’s] water can be naturally occurring” and faulted
Kiskadden’s empirical data because the well water did not exhibit a high level of
chlorides. (Findings of Fact at Nos. 95-98.) The Board concluded:
[Kiskadden] produced hundreds of pages of sampling
results showing that numerous parameters had been
detected in [the well water] that were also detected in
sampling at the Yeager site. The problem is that most of
those parameters can also be found naturally in
groundwater. Thus, their mere detection in a sample is
not enough to prove a hydrogeologic connection. Those
that are not found naturally in groundwater are also
associated with products and activities unrelated to
hydraulic fracturing operations.
(Adjudication at 47) (emphasis added).
In my view, the Board’s reasoning is at odds with the presumption
that the chemicals found in Kiskadden’s well water were present at the Yeager
Site. Importantly, the Board never determined that the presumption was rebutted
PAM - 5
by affirmative evidence to the contrary. In essence, the Board basically reversed
the presumption it granted to Kiskadden against Kiskadden, by hypothesizing that
the parameters “could have” come from somewhere else, when it should have
presumed that they came from the Yeager Site. Ignoring Kiskadden’s empirical
data and the effect of the presumption, the Board dismissed Kiskadden’s case and
the highly positive correlation between the well water and the Yeager Site as mere
happenstance, coincidence, or fortuity. Because the Board failed to properly apply
the presumption in the context of this case, and, for all intents and purposes, never
provided Kiskadden with the benefit of that presumption, I would vacate and
remand to the Board to rectify this legal error with the appropriate findings of fact
and analysis.
Accordingly, I respectfully dissent.
________________________________
PATRICIA A. McCULLOUGH, Judge
PAM - 6