Appalachian Basin

‘Junkyard Plaintiff’s’ Fracking Contamination Claim Rejected Once Again

For the sixth time, an independent body has determined oil and natural gas operations did not contaminate the well water of a Washington County, Pa., man who has come to be known as the “junkyard plaintiff.”

This is a bit in the weeds, but what happened was the Commonwealth Court appeals panel on Wednesday affirmed the Environmental Hearing Board’s (EHB) 2015 dismissal of Loren Kiskadden’s appeal of the Pennsylvania Department of Environmental Protection’s (DEP) 2011 ruling that Range Resources’ Yeager site operations did not contaminate Kiskadden’s well water. From the Commonwealth Court:

“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.”

The ruling, for those new to this four-plus year saga, basically fully upholds DEP’s and EHB’s earlier findings. EHB in June 2015 rejected “new” evidence presented by Kiskadden and issued a decision affirming DEP’s original 2011 determination that Range Resources natural gas operations had not impacted Kiskadden’s water supply. The decision was based largely on the fact that no hydrogeological link exists between Kiskaddens’ water well and the shale well he claims contaminated it. DEP also found Kiskadden’s water issues were likely attributable to the junkyard located on his property.

As EID reported last December, Kiskadden challenged the EHB’s dismissal of his appeal, but the Commonwealth Court declined to reopen the case last December. This week’s determination appears to be the final nail in the coffin, as the appellate court found,

“… Kiskadden’s evidence did not outweigh strong, conflicting 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 the other credible evidence refuting the existence or likelihood of a physical pathway between his well and the Yeager Site.”

With regard to Kiskadden’s insistence that the presence of similar constituents in his well and the Yeager site somehow proved a hydrogeological connection, the appeals court agreed with the EHB that merely detecting the same constituents at each site in no way proves hydrogeological connection,

The appeals court also determined Kiskadden’s claim that the EHB “capriciously” disregarded “evidence” that fractures could have established hydrogeological pathways to his well was unfounded.

“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 is not subject to appellate review.”

“… the fact finder (EHB) is not required to address each and every allegation of a party in its findings, nor is it required to explain why testimony has been rejected.”

The appeals court ruling noted that the EHB “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.” It dismissed Kiskadden’s claim that contaminants could have reached his well through fractures, partly, based on the fact that it found the testimony of Kiskadden’s expert witness suggesting this is possible not to be credible.

And for good reason: mainstream scientists have stated that upward migration of fracking fluids through thousands of feet of impenetrable rock into water tables is basically physically impossible. Here are a few examples.

  • “I have been working in hydraulic fracturing for 40 plus years and there is absolutely no evidence hydraulic fractures can grow from miles below the surface to the fresh water aquifers.” — Dr. Stephen Holditch, Texas A&M University
  • “Fracturing fluids have not contaminated any water supply and with that much distance to an aquifer, it is very unlikely they could.” — Stanford geophysicist Mark Zoback
  • “Data gathered from hydraulically stimulated wells in other states does not show evidence of hydraulically-induced fractures extending into overlying fresh water aquifers.” — University of Michigan

Furthermore, as the EHB noted, if there were indeed hydraulic communication allowing chemicals unique to oil and gas development to enter Kiskadden’s well, analytic results would have shown it. They simply did not, according to the EHB review the appellate court ruling,

“The Board found that many of parameters detected were naturally occurring in groundwater and reflective of background water quality in the area. Other contaminants detected were not unique to oil and gas well operations.”

Finally, the appeals court rejected Kiskadden’s assertion that the EHB improperly relied on speculative evidence to determine that his junkyard and poor well construction could easily explain the contamination of his well,

“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’s claims that shale gas operations have contaminated his well water have been thoroughly debunked by six independent courts/regulators — Pennsylvania DEP, the Commonwealth Court, the Environmental Hearing Board, U.S. EPA, U.S. Agency for Toxic Substances and Disease Registry (ATSDR) and the Department of Health and Human Services (HHS).

At the same time this has occurred, the U.S. Environmental Protection Agency (EPA) has released a report finding “hydraulic fracturing activities have not led to widespread, systemic impacts to drinking water resources” and dozens of peer-reviewed studies have reached the same conclusion.

That said, it is becoming quite obvious that Mr. Kiskadden and activists’ efforts in Washington County are more about generating misleading headlines than seeking justice.

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