Kiskadden v. Pennsylvania Department of Environmental Protection
149 A.3d 380
| Pa. Commw. Ct. | 2016Background
- Kiskadden owns a home in a valley in Washington County, PA; his domestic water is from a private well (~300–397 ft depth). Range Resources operated the Yeager Site (hilltop) ~0.5 mile away and ran multiple unconventional wells and impoundments; the Site had numerous leaks/spills.
- In June 2011 Kiskadden reported foaming, gray sludge and rotten-egg odor in his well. Department and Range sampling (2011) found high pH, high TDS and high sodium in Kiskadden’s water, low chlorides relative to sodium, low levels of VOCs, low methane of biogenic isotopic signature, and bacteriological contamination.
- The Department concluded the well was polluted but that the Yeager Site was not shown to be the source; Kiskadden appealed to the Environmental Hearing Board. Range intervened; the Board granted a rebuttable presumption (due to Range’s discovery failure) that chemicals found in the well were present at the Yeager Site, but Kiskadden still bore the burden to prove a hydrogeological connection.
- After a 20-day de novo trial with extensive expert testimony (hydrogeology and geochemistry), the Board favored Department/Range experts over Kiskadden’s, concluding Kiskadden failed to prove by a preponderance that contaminants migrated from Yeager Site to his well.
- Key factual bases for the Board: many detected constituents are naturally occurring or not unique to oil-and-gas fluids; chloride (a mobile tracer) levels in the well were low relative to sodium (unlike flowback/brine profiles); pre/post contamination data from nearby Yeager Springs showed a different contamination signature; regional hydrogeology and neighboring springs/wells did not support flow toward Kiskadden’s well.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether substantial evidence supports Board finding that Kiskadden failed to prove hydrogeological connection | Kiskadden: detection of the same constituents at Yeager Site and the well (the "definitive test") plus temporal correlation and fractures proves migration | DEP/Range: many constituents are background or common locally; concentration ratios (especially chloride:sodium) and hydrogeologic data contradict migration | Held: Affirmed — substantial evidence supports Board that Kiskadden failed to prove connection by preponderance |
| Whether Board capriciously disregarded material competent evidence (including the definitive test and fracture evidence) | Kiskadden: Board ignored/failed to address overwhelming empirical correlations and fracture evidence, and disregarded the presumption that Site chemicals were present at Yeager | Range/DEP: Board weighed credibility; it considered but rejected Kiskadden’s theories based on expert critique and data (ratios, geologic barriers) | Held: No capricious disregard — Board made credibility/weight determinations supported by record |
| Whether Board improperly relied on speculative alternative sources of contamination | Kiskadden: Board used speculative explanations (salvage yard, well maintenance, surface infiltration) to defeat presumption and his proof | Range/DEP: Alternative sources and well deficiencies were supported by evidence and used to rebut link to Yeager Site | Held: Not error — consideration of alternative, supported explanations was within Board’s factfinding role |
| Proper evidentiary weight of the rebuttable presumption (chemicals at Yeager Site) | Kiskadden: Presumption should have strongly favored finding Site as source; empirical matches were decisive | Range/DEP: Presumption is rebuttable; opposing evidence (ratios, background data, hydrogeology) can and did rebut it | Held: Presumption rebutted by substantial contrary evidence; Board properly applied it and required preponderance proof |
Key Cases Cited
- MKP Enterprises, Inc. v. Underground Storage Tank Indemnification Board, 39 A.3d 570 (Pa. Cmwlth. 2012) (defines substantial evidence as relevant evidence a reasonable mind could accept)
- Herzog v. Department of Environmental Resources, 645 A.2d 1381 (Pa. Cmwlth. 1994) (credibility and evidentiary-weight determinations lie with fact-finder)
- Brockway Borough Municipal Authority v. Department of Environmental Protection, 131 A.3d 578 (Pa. Cmwlth. 2016) (party with burden must prove claim by preponderance in DEP appeals)
- Ductmate Industries, Inc. v. Unemployment Compensation Board of Review, 949 A.2d 338 (Pa. Cmwlth. 2008) (existence of record evidence supporting contrary findings does not compel reversal)
- Al Hamilton Contracting Co. v. Department of Environmental Resources, 659 A.2d 31 (Pa. Cmwlth. 1995) (circumstantial evidence may satisfy preponderance when it so preponderates)
- Helwig v. Department of Transportation, Bureau of Driver Licensing, 99 A.3d 153 (Pa. Cmwlth. 2014) (explains preponderance standard)
- Leon E. Wintermyer, Inc. v. Workers’ Compensation Appeal Board (Marlowe), 812 A.2d 478 (Pa. 2002) (defines capricious disregard of competent evidence)
- Balshy v. Pennsylvania State Police, 988 A.2d 813 (Pa. Cmwlth. 2010) (appellate standard for overturning adjudicator for disregard of overwhelming evidence)
- Eureka Stone Quarry, Inc. v. Department of Environmental Protection, 957 A.2d 337 (Pa. Cmwlth. 2008) (appellate court will not reweigh witness credibility or evidence)