New Information in Kiskadden Case Reveals Shoddy Journalism from PennLive, Again
When it comes to reporting on accusations against the oil and gas industry in Pennsylvania, the media has a habit of generating headlines that suggest the worst possible scenario, even when that scenario has been ruled out by scientists and regulators. To provide just one example, in last month’s series on fracking, the Harrisburg Patriot-News ran a headline regarding Pennsylvania’s “junkyard plaintiff” who has been claiming for years that shale development tainted his water supply. The article “Pa. resident with gray water, black plants hopes for new trial in contamination case” completely disregards the facts and insinuates that the case is still open, which it’s not.
The story centers around Loren Kiskadden, who has been claiming for years that his water well was contaminated by a nearby shale well. But the Pennsylvania Department of Environmental Protection (DEP) determined that shale development did not foul Kiskadden’s well, and instead found the more likely culprit to be the junkyard in which the well is located, as can be seen in the following picture.
The Harrisburg Patriot-News has yet to update its article or release a new one covering the new facts surrounding the Kiskadden case. But, while the outlet continues to show its bias against America’s oil and gas industry, the Pittsburgh Post-Gazette has released an article covering new information surrounding the case. Even Pittsburgh Post-Gazette’s Don Hopey – a board member of the Society of Environmental Journalists and no fan of oil and gas development (see here and here) – laid the facts out in his most recent piece which can be read here.
And, the facts really do speak for themselves, the Pennsylvania Department of Environmental Protection (DEP) had determined that because no hydrogeological link exists between Kiskaddens’ water well and the shale well there is no way that shale development could have fowled the water well. According to the DEP:
The EHB held that Mr. Kiskadden failed to prove the existence of a hydrogeologic connection and rejected his appeal. (emphasis added pg. 12)
Kiskadden with the help of his attorney, John Smith, is now claiming there is “new” evidence so the ruling should be vacated and reviewed again. The problem is, the so-called “new” evidence isn’t actually new, and the latest round of accusations, once again don’t hold up under scrutiny.
The first piece of “new” evidence deals with chemical tracers used during the completion of the Range Resources well that Kiskadden’s attorneys, John and Kendra Smith, are arguing were never disclosed by Range Resources. In fact, the Smiths claim that they found out about the tracer during the deposition of the supplier of the tracer, Multichem Group LLC. on April 10, 2015, after the EHB’s ruling. According to John Smith:
“We had no idea that tracers were used, Range provided a list of companies and products used at the Yeager site which excluded the tracer chemicals and products, and the company performing the tracer services.” (emphasis added)
According to the Pennsylvania DEP, though, Kiskadden and his attorneys were in fact made aware of all the chemicals used at the site in a letter from Range’s counsel dated August 20, 2013. The EHB decision did not occur until June 12, 2015, more than two years later. From the DEP:
“Mr. Kiskadden claims that he learned that products with tracers were used at Range’s Yeager Well Site during an April 10, 2015 deposition in a related civil case. (Application 55, Ex. 24.) In the deposition, a representative of MultiChem Group, LLC, testified that its product, MC S-2510T, contains a tracer Id. At the time of this deposition, however, Mr. Kiskadden had known for almost two years that this product was used at Range’s Yeager Well Site. In a letter from Range’s counsel to Mr. Kiskadden’s counsel, dated August 20, 2013, Range identified products used at Range’s Yeager Site; MC S-2510T was identified. (Application Ex. 9, 4th page of table). See Application Ex. 7, 9 (EHB Order requiring Range to identify products used at Yeager Well Site). Thus, Mr. Kiskadden had knowledge that Range used tracers more than two months before the EHB’s Adjudication was issued on June 12, 2015.” (emphasis added, pg. 3)
But why does it even matter if a tracer was used? Since a tracer was used during the completion process of the Range Resources well, that tracer – MC S-2510T, or antimony, which is a component of the tracer and one that the EPA tested for, should also be present in Kiskadden’s water well. Yet, according to DEP, that wasn’t the case:
“Mr. Kiskadden filed no documents showing that there was antimony in his water. The raw data filed herewith by the Department, if verified by a laboratory professional as accurate, would show that Mr. Kiskadden had either zero or such a low amount of antimony that the Bureau of Laboratories’ machines ascribed a negative value to it.” (emphasis added, pg. 22)
“Mr. Kiskadden has presented no evidence that antimony is in his water, and the evidence of record shows that it is likely not present. If antimony had been used as a tracer at the Yeager Site, then there would be no reason to conclude Range’s Yeager Site affected Mr. Kiskadden’s water because there is no evidence of antimony in his water.” (emphasis added, pg. 23)
Yet, Kiskadden does point to water samples where antimony is present, which he then tries to use to establish a hydrogeological connection between the shale well and his water well. So why was there antimony in one of Kiskadden’s water test results? According to the DEP:
Mr. Kiskadden’s assertion must be rejected because it is simply wrong. The analytical results cited are not an analysis of the quality of Mr. Kiskadden’s water. Rather, the results are for water from Mr. Kiskadden’s well that had been “spiked” by the Department’s laboratory by adding known amounts of substances, including antimony. This is done as part of the Laboratory’s quality assurance and quality control procedures. The actual results for Mr. Kiskadden’s well water – i.e., water not “spiked” – do not show that antimony is not present in his water. (emphasis added pg. 12)
To recap, Kiskadden and his attorneys clearly knew about the chemicals used and the existence of tracers prior to EHB’s ruling and the water test results speak for themselves: antimony was never present in Kiskadden’s water well.
Letter from the U.S. Agency for Toxic Substances and Disease Registry (ATSDR)
The second piece of “new” evidence asserts that Range Resources concealed a draft letter from the U.S. Agency for Toxic Substances and Disease Registry (ATSDR) which showed Kiskadden’s water well to contain high concentrations of sodium, total dissolved solids, methane, arsenic and diesel ranges organics – not uncommon conditions for a poorly constructed and neglected water well, located in the middle of a junkyard.
According to the DEP the letter from the ATSDR highlights contaminates in Kiskadden’s water well, which are believed to be caused by his own junkyard. And once again DEP has evidence Kiskadden knew about the letter:
“Mr. Kiskadden does not identify when he received the draft ATSDR letter. However, the application suggests that it was received on May 1, 2015, which was almost one and one-half months before the Board issued its Adjudication. Moreover, the draft ATSDR letter states that the letter summarized a March 2013 conversation between Mr. Kiskadden, ATSDR, and EPA representatives regarding the analytical results for Mr. Kiskadden’s water well. Thus, the information in the letter was known to Mr. Kiskadden at the time of the EHB hearing in 2014.” (emphasis added, pg. 3)
But if DEP’s evidence isn’t enough proof for readers that Kiskadden and his attorneys knew about the letter and its contents well ahead of the EHB hearing, perhaps a letter from the Department of Health and Human Services (DHHS) dated October 30, 2015 will make the point. According to the letter :
“Dear Mr. Kiskadden
EPA collected samples from your private water well as part of a national study of the possible effects if hydraulic fracturing on drinking water. This letter summarizes ATSDR’s 2013 conversation with you and EPA about your water quality.
EPA collected samples from your private water well in March 2012 and shared the results with you. ATSDR reviewed the results from your water samples to evaluate the quality of the water for use as drinking water. Quality drinking water does not contain chemicals at harmful levels and is free of bad odors, taste, and color. EPA requested that ATSDR write this follow-up letter, which summarizes our March 28, 2013 conversation with you and the EPA about your well water quality.” (emphasis added)
The letter also included water quality results from EPA testing:
Judging from contaminates in Kiskadden’s water well – as shown above – and his own testimony, it’s clear that there is something clearly wrong with the water well. No one is disputing that. But after years of litigation and four separate state and federal organizations – Pennsylvania DEP, U.S. EPA, U.S. ATSDR, and DHHS – have all made similar findings that Pennsylvania’s oil and gas industry were not at fault in this case, one has to wonder, where is the contamination coming from? According to the DEP:
“To the extent a further response is required, the Board’s conclusion remains correct: minor detections of naturally occurring constituents are not enough to prove a hydrogeological connection. Rather, chlorides, in elevated concentrations greater than concentrations of sodium, calcium, and other constituents, in that declination, are indicative of pollution from oil and gas fluids, and were not evident in Mr. Kiskadden’s water.” (emphasis added, pg. 23)
“To the extent a response is required, the record shows that Mr. Kiskadden did not meet his burden to prove a hydrogeological connection between the Yeager Site and his Water Supply, but, instead, created a lengthy record based on detections of constituents that could have come from his own scrapping activities, his family’s scrap facility, or other nearby uses.” (emphasis added, pg. 24)
In other words, evidence shows that Kiskadden’s own junkyard has contaminated his water well and that oil and gas development had nothing to do with it. As for this latest attempt to head back to court, DEP has concluded:
The Application should be denied. First, the information identified by Mr. Kiskadden is either not new or was already presumed to exist. All of this information was or could have been presented to the Board before its Adjudication or shortly thereafter. Mr. Kiskadden waived the right to raise this “new” evidence as a basis to overturn the Board’s Adjudication by failing to raise issues before the Board or to this Court in his Petition for Review or his Brief. Moreover, Mr. Kiskadden has failed to show that he meets the elements required for a remand and new trial. Specifically, 1) Mr. Kiskadden did not exercise reasonable diligence to present the “after-acquired evidence” to the Board, and 2) Mr. Kiskadden failed to demonstrate that the evidence is not cumulative and would likely compel a different outcome before the Board. (emphasis added, pg. 4)
Four government agencies have concluded that shale development is not responsible for fouling Kiskadden’s water well, and the DEP has re-affirmed those findings in light of these recent accusations. Yet the media continues to report on the case as if those rulings never existed, using misleading headlines to draw in readers. It’s unfortunate that in a rush for readership, the media today seems to forget its obligation to actually provide the public with accurate information.
One would hope that the paper of record for the state capital would want to inform their readers of these facts and findings and correct their own prior assumptions on the gas industry.
With such a disregard for the facts, it’s evident that a letter sent by the Director of Corporate Health and Wellness for Allegheny Medical Integrated Services, Melissa Hodge to the Harrisburg Patriot-News, “PennLive/The Patriot-News series on shale was ‘purely a work of fiction” holds more truth than the papers actual reporting, or lack thereof.
Perhaps the Editorial page editor of the Patriot News who stated of their prior coverage “Have you ever been in the middle of reading something and found yourself just kind of nodding your head in recognition?” should pose that same question to himself regarding these latest revelations.