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COMMONWEALTH OF PENNSYLVANIA ENVIRONMENTAL HEARING BOARD LOREN KISKADDEN Appellant,
Docket No. 2011-149-R
VS.

DEPARTMENT OF ENVIRONMENTAL PROTECTION Appellee.
VS.

RANGE RESOURCES - APPALACHIA, LLC, Permittee.

MOTION FOR CONTEMPT AND FOR SANCTIONS IN THE FORM OF AN ADVERSE INFERENCE

Loren Kiskadden ("Appellant"), through counsel, Smith Butz, LLC files this Motion for Contempt and for Sanctions in the Form of an Adverse Inference pursuant to Rules 95 and 161 of the Environmental Hearing Board's Rules of Practice and Procedure, 25 Pa. Code §§ 1021.93, 1021.161, and in support thereof avers as follows:
I. INTRODUCTION

1.

This within Motion for Contempt and for Sanctions in the Form of an "Adverse

Inference" is in response to Permittee, Range Resource-Appalachia, LLC's ("Range") failure to comply with the July 19, 2013 Order of Court entered by the Chairman and Chief Judge of the Pennsylvania Environmental Hearing Board ("Board"), Judge Thomas Renwand, ordering, in part, that Range disclose all products and all chemicals within the products used at the Yeager Site:

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AND NOW, this 19th day of July, 2013, after review of Appellant's Motion to Compel Discovery Responses from Permittee and Appellant's Motion to Renew Motion to Compel Against Permittee, Permittee's Responses, and following Oral Argument before the Pennsylvania Environmental Hearing Board, it is ordered as follows: 9) Appellant's Motion to Renew Motion to Compel is granted. On or before August 20, 2013, Permittee shall provide Appellant with a list identifying any and all proprietary chemicals comprising each and every product identified by Permittee as used at the Yeager Site. In addition, Permittee will provide Appellant with a list of all chemicals for each Material Safety Data Sheet of the products Permittee earlier identified as used at the Yeager Site that lacked fill information regarding all of the chemicals and components of those particular products.
See, July 19,

2013 Order (emphasis in original), attached hereto as Exhibit 1. The fact that Range does not know and cannot determine all of the chemicals used

2.

at its drill sites and placed into the Pennsylvania environment is, in and of itself; almost inconceivable. The fact that the Pennsylvania Department of Environmental Protection ("Department"), which is entrusted with protecting Pennsylvania's air, land, and water from pollution and providing for the health and safety of its citizens through a cleaner environment, does not know all ofthe chemicals used at drill sites and placed into the Pennsylvania environment is irresponsible. 3. The Department' and Range both made determinations about the impact of the

Yeager Site to Appellant's drinking water without knowing or determining all of the chemicals Range used or brought to the Yeager Site. Range's failure to know and disclose to Appellant all of the chemicals it uses at drill sites violates the July 19, 2013 Order of Court, places Range in

The Department is merely provided with Material Safety Data Sheet ("MSDS") sheets and incomplete reports from oil and gas operators, neither of which contain a liiil list of all products and the chemical constituents and components of those products used or brought to a drill site, and makes determinations regarding the quality of Pennsylvania Citizens' drinking water based on these incomplete reports. MSDS sheets themselves often fail to disclose full componenis of products and may contain a percentage of a product's make-up that is unaccounted for.

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contempt of court, and is grounds for sanctions in the form of an adverse inference. 4. An adverse inference that evidence would be unfavorable to a party may be drawn

where the evidence, which would properly be part of a case, is within the control of a party in whose interest it would naturally be to produce it, and without satisfactory explanation, that party has failed to do so. Magette v. Goodman, 771 A.2d 775, 780 (Pa. Super. 2000). 5. As Range has violated this Court's Order, Appellant respectfully requests that this

Honorable Court enter an order of contempt and sanction Range by ordering an "adverse inference" precluding Range and the Department from arguing that the chemicals and components of the products that it used at the Yeager Site did not contaminate Appellant's water, declaring that the chemicals and components of the products that Range used at the Yeager Site contaminated Appellant's drinking water, and, as a result, declaring that the Department's determination that the products and chemicals used by Range at the Yeager Site in its natural gas drilling operations did not impact Appellant's water is null and void.
II. PROCEDURAL HISTORY

6.

On August 24, 2012, Appellant served Range with Appellant's Request for

Production of Documents pursuant to 25 Pa. Code § 1021.102 and Pa. R.C.P. 4009.11. Appellant requested that Range identify any and all products used at the Yeager Site and the chemicals and components of each of the products. Additionally, Appellant requested that Range produce and identify all proprietary chemicals used in drilling operations at the Yeager Site. See, Appellant's Request for Production of Documents and Range Responses at Nos. 37, 38, and 42, attached hereto
as Exhibit 2.

7.

Subsequently, Appellant moved to compel Range's response because Range failed

to provide Appellant with all information regarding products, chemicals and components used at

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the Yeager Site, including all proprietary chemicals. Range merely produced additional incomplete MSDS sheets that failed to disclose the full list of products, the chemical makeup and components of those products, and even failed to identify which specific products it used at the Yeager Site. On December 3, 2012, Appellant filed a Motion to Compel certain discovery responses from Range, including identification of proprietary chemical information for products used at the Yeager Site. 8. At the direction of the Board, counsel for Appellant and Range met in-person on

December 17, 2012 for a "meet and confer" session in order to, in part, resolve Appellant's discovery disputes with Range's document production and lack thereof At the "meet and confer" session, Range's counsel explained that Range itself would not likely have the information Appellant is seeking but would use its "best efforts" to obtain from its third-party vendors the information regarding the proprietary chemicals of its products.
See, December 17, 2012

Transcript, selected pages, attached hereto as Exhibit 3. In particular, counsel for Range agreed that the lack of proprietary chemical identification creates a "void" that results in the absence of information needing to be filled. Id. 9. At a hearing held before the Board on December 20, 2012, the parties explained to

the Board that Range had agreed to address the issues raised by Appellant's original Motion to Compel, including Appellant's request for complete information regarding all of the products, components of products, and proprietary chemicals used at the Yeager Site. As a result, the Board postponed ruling on Appellant's original Motion: Ms. Smith: And what from [the "meet and confer" session] was Range has agreed, and please correct me if I am wrong, Ken has agreed to re-answer all of the request for admission, request for production of documents that we put in a letter, 17-page letter, to them as to what we had objections to, has agreed to re-answer them. There is only one caveat to that: that one is we had requested a 4

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request for production of all the names of the proprietary chemicals that were used up at the Yeager Site. Mr. Komoroski has made me aware that he will do his best to get those from Range. However, Range may not have some of that information, because they would be with the third-party contractor who actually applied that or the manufacturer of that product. And so obviously, I would still have an issue with that but Mr. Judge Renwand: If that comes out where, you know, you don't get all of it or whatever, just let me know. We will discuss that. I understand that you can't guarantee that right now. Mr. Komoroski: That is right, Your Honor. Yes, we - on absolutely every item that was part of the motion to compel, we agreed to improve our answers and our production and in all of the request for admission, that we are going to provide much more elaborate and helpful answers to those requests. And the only one that I just simply wasn't able to - what I said as far as proprietary chemicals, if we don't - we don't have that information. The vendor has it. We will use our best efforts. We will make personal inquiry to the vendor, ask for them to provide it and then we will inform the Board; and perhaps there is something - if we don't get it, perhaps there is something the Board can do; so perhaps everything that is in the motion to compel, we agreed to improve upon our answers, our production, redo more elaborately our responses for request for admission; but on that one, it is honestly the best that we can do.
See, December 20, 2012 Transcript, selected pages (emphasis added), attached hereto as Exhibit

10.

As a result, the Judge invited Appellant to renew his Motion to Compel with regard

to his request for complete product information and identification of proprietary chemicals in the event that Range's "best efforts" proved unproductive. 11. On or about January 15, 2013, Range served upon Appellant its amended responses

to Appellant's First Set of Requests for Production of Documents. In particular, in response to Request Nos. 38 & 42, Range stated: Range is currently in the process of seeking additional information from manufacturers that have failed to provide enough information
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about their products in the MSDS. We will supplement our responses and production as we receive that information.
See,

Range's Amended Response to Request Nos. 38 & 42, attached hereto as Exhibit S. 12. In a good faith attempt to confer with Range, on February 22, 2013, counsel for

Appellant sent a letter to Range again requesting the product and chemical information, including the proprietary chemicals, utilized at the Yeager Site: I am also in receipt of Range's Amended Responses and Objections to Appellant's Requests for Production of Documents and Requests for Admissions (collectively, the "Amended Discovery Responses"). Pursuant to the Board's Order, counsel for Appellant and counsel for Range previously met to confer regarding the responses Range previously submitted to Appellant's first set of discovery request. The Amended Discovery Responses were produced by Range pursuant to an agreement reached between the Parties at the "meet and confer" session relative to Appellant's first set of discovery in lieu of Appellant pursuing an already-filed Motion to Compel. However, with Board permission, Appellant reserved his right to pursue his Motion if Range failed to produce documents that were properly requested, including documents relative to the proprietary information of the products used by Range at the Yeager Site (See, Request Nos. 37, 38, and 42). In its Amended Discovery Responses, Range indicated that it was seeking the proprietary information 2 sought from the product manufacturers. To date, Appellant has not received any additional documentation from Range in this regard. Please advise as to the status of this endeavor and when Appellant can expect to receive the proprietary information requested. If Range is unable to satisfy this production by March 4, 2013, Appellant will be forced to renew his Motion to Compel on this matter before the Board.
See,

February 22, 2013 Correspondence, attached hereto as Exhibit 6. 13. Appellant received no response from Range by March 4, 2013 as requested.

However, counsel for Appellant and counsel for Range scheduled another "meet and confer" session on March 12, 2013, in order to discuss, in part, Appellant's discovery dispute letter of

2

By stating "proprietary information," Appellant included all product information missing from the produced MSDS Sheets and all chemical and component inforrnalioii of all products.
rol

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February 22, 2013. At this second "meet and confer" session, counsel for Range indicated that responses were "trickling in" and would be produced. See, March 12, 2013 Transcript, selected pages attached hereto as Exhibit 7. 14. Additionally, Range indicated that many of the requests made for manufacturers'

proprietary information remained suspended. As a result, counsel for Appellant requested the following: That needs to be laid out in a letter. Like, you know, these are the companies we sent out to, you know, information requests to these particular companies on these dates. To date, we have received [no's] from whomever. We have received we're looking into it from whoever. We've received, you know, definitely yes and have received documents in. If you already have documents in under the discovery rules, you have to supplement when you get them. So we would request that you provide them. But in that letter give us an indication so we can go back to the Court and say, look, Your Honor, at this point you know we may need your help because it doesn't appear as though - it appears that Range is doing what they need to do but these other companies are a bit of a stonewall for it. So we're asking for your intervention with it. So that we can provide an update because there is that motion pending out there that he is ready to rule on, you know, given whatever comes back from these companies.
See,

Exhibit 7. In response, counsel for Range agreed to "compile everything into . . . a single

15.

spreadsheet" to make Appellant aware of the status of Range's efforts. See, Exhibit 7. Range agreed to provide this update to Appellant by March 19, 2013, within one (1) week. 16. On March 25, 2013, almost one (1) week after it was promised, counsel for Range

provided Appellant with a chart regarding its endeavors to obtain the proprietary chemicals utilized in its operations at the Yeager Site. See, Chart re: Status of Third-Party Responses to Requests for Additional Production information, attached hereto as Exhibit 8. 17. As detailed in the chart, Range had little success in determining all of the chemicals 7

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and constituents including the proprietary chemicals of products used at the Yeager Site. Approximately three (3) months following Range's initial promise to use its "best efforts," it continued to "await" follow-up responses and information.
See,

Exhibit 8. In many cases, Range

was not even aware of the correct manufacturer of the product it utilized, because it appears that a manufacturer listed on a MSDS sheet for a product was not the true manufacturer. 18.
See,

Exhibit 8.

On March 28, 2013, in response to Range's failure to timely provide information

regarding the proprietary chemicals of products from its manufacturers or a complete list of products and chemicals used, and after waiting approximately seven (7) months for such a response, Appellant filed a Motion to Renew Motion to Compel Range's discovery responses. 3 In the Motion to Renew Motion to Compel, Appellant requested that the Board enter an Order that compelled the production of all documents responsive to Appellant's Requests for Production of Documents Nos. 37, 38, and 42 regarding all product and chemical information including the proprietary chemicals of the products used at the Yeager Site. 19. Oral argument on Appellant's Motion to Renew Motion to Compel was held before

the Board on June 26, 2013. During the hearing, the Judge explained as follows:
Judge Renwand: I mean, you find chemicals. I assume you find, you know, chemicals A, B and C. And you ask them to admit that was in their products and we don't know. We don't know what is in the product because we ask the people who we bought the products from and they say, 'We can't tell you. It is proprietary.' I think if you look at a Coca-Cola can, it will tell you what the ingredients are. I'm looking at a Gatorade can right now, and it's telling me everything that is in here. . . . [a]s I understand it, that is all [Ms. Smith] is asking for."
See,

June 26, 2013 Transcript, selected pages attached hereto as Exhibit 9.

It should be noted that the Department not only never required Range to disclose a complete list of its product and chemical information, including, but not limited to proprietary chemical information of the products, but also failed to join Appellant, a citizen of Pennsylvania who the Department is charged with protecting, when presented with the opportunity to join the motion to compel Range to disclose such information.

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20.

On July 19, 2013, over Range's objection, the Board granted Appellant's Motion

to Renew Motion to Compel and ordered Range to "provide Appellant with a list identifying any and all proprietary chemicals comprising each and every product identified by [Range] as used at the Yeager Site," and to "provide Appellant with a list of all chemicals for each Material Safety Data Sheet of the products [Range] earlier identified as used at the Yeager Site that lacked full information regarding all ofthe chemicals and components ofthose particular products" by August
20, 2013. See, Exhibit 1.

21.

On August 16, 2013, at the request of Range's counsel only four (4) days before

Range's responses were due, the Parties held a conference call with Judge Renwand during which Range indicated that it had not made progress obtaining the proprietary information that the Board ordered Range to produce. Counsel for Range explained that, despite diligent efforts, Range was unable to produce a list identifying the chemical constituents in the products used at the Yeager Site, including proprietary information, as ordered by the Board on July 19th. In response to Range's claim that it could not produce a list identifying the chemical constituents of the products used at the Yeager Site, the Judge explained that although the requirements of his July 19"
Order were clear, the deadline to comply with the July 19 1h Order of Court was extended to

August 30, 2013. 22. On or about August 20, 2013, Range submitted amended discovery responses to

Appellant pursuant to the July 19' 11 Order. In its cover letter accompanying these responses, Range explained: In addition to these responses, we have also attached a separate spreadsheet that summarizes Range's efforts to date with regard to obtaining manufacturer information for proprietary compounds. In these charts, Range has provided a list of products and their ingredients as listed on the MSDS sheets, and, if applicable, any further response that Range has received from the product

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manufacturer. As discussed during the recent status conference, Range is currently exploring additional options in this regard, and Range remains committed to doing everything it can to further the efforts to obtain this information.
See, Range August 20th Letter & Charts, attached hereto as Exhibit 10.

23.

Notwithstanding Range's production, as demonstrated in the chart provided by

Range, identification of all chemicals and constituents, including proprietary compounds, remains absent in violation of this Honorable Court's order. 4 For example, Range has identified both "FRW-200" and "HVG-l" as products used at the Yeager Site for hydraulic fracturing. The ingredients for both of these products are listed as "unidentified." See, Exhibit 10. 24. To further demonstrate Range and the Department's lack of knowledge regarding

all of the chemicals and components in the products used at the Yeager Site as detailed by the attached chart, for example, the MSDS sheet produced by the Department that it received from Range for "FRW-200" lists zero (0) materials and chemicals in this product, and the MSDS sheet for "HVG-1" lists only one chemical which comprises less than fifty percent (50%) of the product.
See, Selected Examples of Produced MSDS Sheets, attached hereto as Exhibit 12. The MSDS

sheets that Range provided to both Appellant and the Department are either completely void of information or substantially incomplete, highlighting that neither Range nor the Department, which is charged with obtaining this information from Range, are aware of all of the chemicals and components comprising Range's products used at the Yeager Site. 25. On or after August 26, 2013, Range has neither provided Appellant with any

Range's website states that it voluntarily discloses "the composition of each of the hydraulic fracturing components for all the wells operated by Range Resources with the Pennsylvania Department of Environmental Protection (DEP) completed in the Marcellus Shale." For instance, Sierzega Well #91-1 was fracked in October 2010 and Range's website lists the same products used and not disclosed for the Yeager Site, omitting product information and chemicals and components in the products used. Likewise, in 2011, Range fracked Sierzega Well #GH and Range lists incomplete product information for this well on its website. See, Range's Website and Well Information, attached hereto as Exhibit 11. Range's disclosure regarding the Sierzega well sites is similarly incomplete and fails to identify all chemicals and constituents not listed in MSDS sheets. 10

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additional information required to be produced by the July 19 th Order nor followed up with Appellant regarding its efforts, if any, to provide a list of all products and chemicals and components of those particular products, including proprietary chemicals, used or brought to the Yeager Site. As such, because Range has not complied with the directives of the July 19 "' Order, Appellant files the within Motion to request this Board to find Range in contempt and order the sanction of an "adverse inference" when making its determination in the instant Appeal.
III. FACTS

26.

Range has continuously failed to produce information regarding all ofthe chemicals

and components of those particular products and information identifying the proprietary chemicals in the products used at the Yeager Site since Appellant requested the information over a year ago in August 2012. Range has had ample time to locate and produce such information and should have known long before the July 19, 2013 Order of Court what it was bringing onto and using at the Yeager Site. Range should have known and identified to the Department identification of chemical components of its products used at the Yeager Site prior to their actual use. 27. Notwithstanding Range's inability to discern or disclose the chemical content of all

of the products used at the Yeager Site, Range has represented, not only to Appellant and this Board, but also to the public, on numerous occasions, that it is readily aware of all of the chemicals it uses at drill sites and that it voluntarily discloses all of the hydroftacking chemicals it utilizes:'

Of importance is that Range has brought drilling muds, filtered water, flowback water, and re-fracked frac water to the Yeager Site from multiple other drill sites. These multiple mixtures and concoctions are apparently not subject to any accounting or checking to determine what chemicals are actually held or utilized at the Yeager Site. While Range has represented that a majority of its drilling fluid is comprised of "water," the water initially brought to the Yeager Site and placed in the Yeager impoundment came from the Carol Baker Drill Site as frac water. Additional "water" was subsequently brought in from the Sierezega Drill Site and the Jon Day Drill Site which already had a composition of chemicals due to its use in fracking. The Yeager Impoundment continued to get "water" in from other sites for use at Yeager through 2012. As such, "products" used at the Yeager Site includes this "water" which is is not freshwater, but a combination of drilling fluids, hydraulic fracturing chemicals, and frac-water from multiple sites which was then used and stored at the Yeager Site. 11

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a. Range Resources Spearheading Voluntary Initiative:

"On July 14, 2010, Range announced its voluntary initiative to disclosure Marcellus Shale hydraulic fracturing additives .... The decision to disclose the exact chemical composition of the chemical additives used in hydraulic fracturing (fracking), has come about because people are distrustful of the potential damage fracking could cause..."
See,

Range Resources Spearheading Voluntary Initiative, August 13, 2010, Energyglobal.com (emphasis added), attached hereto as Exhibit 13.
b. Marcellus Driller Volunteers to Disclosure Fra eking Chemicals:

"The company that pioneered Marcellus Shale exploration announced Wednesday that it was voluntarily disclosing the chemicals used to hydraulically fracture its natural gas wells, in an effort to defuse criticism about the process."
See,

Marcellus Driller Volunteers to Disclose Fracking Chemicals, July 15, 2010, PhiIly.com , attached hereto as Exhibit 14.
c. Range Resources Promises they "Really Will" Disclose Fracking Chemicals:

"Two weeks ago Range Resources announced they would voluntarily disclose hydraulic fracturing chemicals used in drilling Marcellus Shale. . .. 'Beginning now, completion reports will have an addendum attached that lists the fracturing chemicals, as well as their amounts, used in drilling each well,' Pitzaerella said. These will be posted to the Company website as well." Range Resources Promises they "Really Will" Disclose Fracking Chemicals, July 29, 2010, Themarcelluseffect.blogspot, coin, attached hereto as Exhibit 15.
See,

d. Natural-Gas Driller to Disclose Chemical Use:

"Range Resources Corp. says it plans to disclose the chemicals used to hydraulically fracture natural-gas wells in Pennsylvania, confronting rising pressure from environmental groups worried that drilling could contaminate drinking water.. .In a significant break from past practice, Range says it will
Additionally, with such a mixture of fluids and chemicals making up the "water" used and stored at the Yeager Site, it is inconceivable how Range could ever determine that such a chemical mixture is compatible with the liners used in the Yeager Impoundment pursuant to Pennsylvania regulations, which require that both the primary liner and the secondary liner "satisfy EPA Method 9090, Compatibility Test for Wastes and Membrane Liners or other documented data approved by the Department." See, 25 Pa. Code § 78.57. EPA Method 9090A "is intended for use in determining the effects of chemicals in a surface impoundment.. - on the physical properties of flexible membrane liner materials intended to contain them." 12

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begin submitting a detailed list of all chemicals and additives, and the volumes, used to fracture each of its gas wells to the state." 6
See,

Natural-Gas Driller to Disclose Chemical Use, July 14, 2010, WSJ. com (emphasis added), attached hereto as Exhibit 16.
e. Fracturing Fluid Selection and Disclosure:

"Range Resources announced on July 14, 2010 that the Company would voluntarily disclose the composition of each of the hydraulic fracturing components for all the wells operated by Range Resources with the [Department]." "Transparency and open dialogue are vital to the continued progress of energy development. This pushed Range to become the first company to voluntarily disclose the fracturing fluid for each completed well on our website."
See,

Operations, and Fracturing Fluid Selection and Disclosure, RangeResources.com (emphasis added), attached hereto as Exhibit 17.
f. Range Support Disclosure, New Technologies:

"A recent letter .... Repeated a false statement that the contents of fracturing fluid in oil and natural gas development are a secret. This is not the case. While all companies are required by regulation to disclose today, Range was actually the first company to voluntarily disclosure fracturing fluids on a per well basis in the entire United States back in 2010."
See, Range Supports Disclosure, New Technologies, April 23, 2013, Observer-Reporter.com , attached hereto as Exhibit 18. (authored by Matt Pitzarella, spokesman for Range).

28.

Moreover, despite Range's inability to ascertain or provide all of the chemical

components of the products used at the Yeager Site, Range has also represented to its own shareholders7 that, in 2010, it "voluntarily elected to provide . . . the hydraulic fracturing

6 The Pennsylvania Supreme Court has held that "the word a11' needs no definition; it includes everything, and excludes nothing. There is no more comprehensive word in the language.... " Cannon v. Bresch, 160 A. 595, 596 (Pa. 1932).

Publicly traded companies are required to submit to the Securities and Exchange Commission Annual 10-K Reports for the purpose of protecting investors and insuring fair trade of securities. See Securities Exchange Act of 1934, 15 U.S.C. §78a ci seq. In presenting Annual Reports to the SEC, companies submit that representations made in these reports are truthful and accurate under penalty of law. 15 U.S.C. §78j(b) (Anti-fi-aud provision).

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components for all wells operated" by Range. See, Range's 2011 Annual 10-K Report Filed with the Securities and Exchange Commission, selected pages attached hereto as Exhibit 19. 29. Despite repeated assertions that Range discloses all chemicals in the products it

utilizes, 8 Range's lack ofproduction in the instant matter and non-compliance with a court-ordered directive evidences Range's lack of knowledge regarding what comprises the products it is using. 9 30. Moreover, Range admitted in Requests for Admissions that it made findings of

water quality without full knowledge of all chemicals used at the Yeager Site: 30. Admit that Range conducted all of its investigations and made findings of water quality without full knowledge of all chemicals used at the Yeager Site.

RESPONSE: Range admits that it did not have an all-encompassing knowledge of the complete chemical makeup of each chemical product used at the Yeager Site by Range and/or its subcontractors when Range conducted all of its investigations and made findings of water quality as some products contain proprietary compounds, which are not known to Range. However, Range does have a general working knowledge of the chemical makeup of the products used at the Yeager Site. To the extent currently possible, the MSDS for the various products used at the Yeager Site have been produced to Plaintiffs.
See, Selected Pages from Range's Objections and Responses to Plaintiffs' First Set of Requests for Admissions in Haney, et aL v. Range Resources-Appalachia, LLC, et al., No. 2012-3534 in the

As previously noted, Range has no knowledge of the chemical composition of the frackwater used as a product at the Yeager Site, which is comprised of products and chemical components from multiple drill sites. Of note, Pennsylvania's recently enacted law to regulate oil and gas drilling ("Act 13") requires the natural gas industry to disclose the identity of proprietary chemicals to health professionals when a medical emergency exists with the execution of a confidentiality agreement. 58 Pa. C.S. § 3222.1(b)(l1). In the event of a medical emergency when identification of proprietary chemicals is necessary for proper diagnosis, it is unclear how Range will comply with these disclosure requirements in the law as it admittedly is unaware of all the chemicals it uses in its drilling processes. Further, it is similarly, unclear how Range complies with the liner requirements of the Pennsylvania Code and EPA Method 9090A without full knowledge of the products and chemicals and constituents of those products for which its liners are used. See, Footnote 5. 14

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Washington County Court of Common Pleas, attached hereto as Exhibit 20. 31. In addition to Range's failure to produce relevant evidence during discovery and

inability to ascertain the identity of all of the products and chemicals it used at or brought to the Yeager Site, the Department is likewise unaware of all chemicals and components of all products, including the proprietary chemicals used at the Yeager Site.
See, Department Responses to

Request for Admissions, attached hereto as Exhibit 21. Based upon the Department's Responses to Request for Admissions, it is clear that the Department is unaware of either the identity or composition of the proprietary chemicals found in the products used at or brought to the Yeager Site. Id. Despite the Department's lack of knowledge, it readily made a determination regarding the cause of Appellant's water contamination, specifically finding that activities at the Yeager Site did not impact Appellant's water. 10 This determination is the subject of the within Appeal. 32. As further evidence of the problematic nature of Range's failure to identify all of

the chemicals used at the Yeager Site, Range has somehow responded to discovery requests without full knowledge of the products and chemicals it utilized. For example, in Range's Amended Responses to Appellant's First Set of Interrogatories and Second Set of Requests for Admissions, Appellant requested that Range either admit or deny that certain chemicals were used by Range as a component of a product in the drilling process at the Yeager Site. See, Range's Amended Responses to Appellant's First Set of Interrogatories and Second Set of Requests for Admissions, attached hereto as Exhibit 22. 33. In particular, Appellant requested that Range, "[a]dmnit that acetone was used by

Not only was the Department unaware of all of the chemicals present at the Yeager Site at the time it made its determination relative to Appellant's water, the Department also analyzed Appellant's water through use of a "suite code" designed to produce results for only a limited number ofparameters. Therefore, in conjunction with an absence of information regarding all chemicals in all products used at the Yeager Site, the Department's determination was based upon analyses of Appellant's water test which omitted certain parameters that have been shown, by the Department's own study, to be associated with drilling activities. 15

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Range Resources as a component of a product in the drilling process at the Yeager Site." See, Exhibit 20. Range responded as follows: Denied. Per its MSDS sheet, acetone is a constituent part of Aervoe Rust Proof Paint - Aerosol. After a good faith investigation, Range has made a reasonable inquiry, and the information known or readily obtainable to Range is insufficient to enable it to admit or deny that this type of paint was ever used at the Yeager Site, and therefore denies this request. Range does not currently believe that acetone is a constituent part of any other product used in the drilling process at the Yeager Site. See, Exhibit 22. 34. Range makes this qualified denial while, at the same time, admitting that it is

unaware of the chemical composition for all of the products used at the Yeager Site. It is unclear how Range can determine that a specific chemical was not a constituent used at or brought to the Yeager Site when Range does not know all the chemicals comprising the products placed into the environment. 35. Despite Range's qualified denial that acetone, a volatile organic compound

("VOC"), was not utilized at the Yeager Site, acetone was detected during water sampling of the Yeager Impoundment prior to its draining and cleaning in 201 land in seventeen (17) separate soil samples taken during remedial efforts from the underneath the Yeager Drill Cuttings Pit following the Pit's failure and leakage and the issuance of Notice of Violation by the Department. Notably, and of great importance, is the fact that acetone was one of the many constituents detected in Mr. Kiskadden' s drinking water, yet dismissed by Range and the Department. Moreover, in a study of fiowbaek water performed by the Department, as well as a Gas Technology Institute study, acetone was regularly found as a constituent of flowback water. 36. The problematic nature of not knowing all of the chemicals used or brought to the

Yeager Site is further exacerbated by the fact that the Drill Cuttings Pit leaked on multiple 16

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occasions, pipes carrying flowback leaked, and trucks leaked and overturned. Multiple chemicals, unknown to Range and the Department, were contaminating the environment, as evidenced by the multiple spills and leaks documented at the Yeager Site. In addition, water testing performed by Range in the fall of 2010, but not provided to the Department despite being requested, demonstrated that the Impoundment was leaking as early as 2010. 37. Both Range and the Department have made determinations about the source of Mr.

Kiskadden's water contamination, concluding that the contamination and presence of certain constituents that are associated with drilling activities are not a result of activities at the Yeager Site. This determination made by the Department, in particular, is the subject of the instant Appeal. However, through discovery it has been revealed that Range and the Department made these determinations about impacts to Mr. Kiskadden's drinking without knowledge of the all products and all chemicals utilized at the Yeager Site. 38. Undoubtedly, to determine whether "x" chemical or constituent in Mr. Kiskadden's

water appears as a result of activities at the Yeager Site a critical factor will be to likewise determine whether "x" chemical was placed into the environment at the Yeager Site. To otherwise make this determination in a vacuum is prejudicial and establishes Appellant's need for an "adverse inference" when chemicals used at the Yeager Site cannot be ascertained. This is especially true where the company using the chemicals does not know all of what it used and the governmental agency entrusted with protecting the environment, the Department, permits the practice and likewise does not know all of the chemicals used. 39. The information identifying what comprises the products that - Range used at the

Yeager Site, currently unknown to all Parties to this matter, is crucial to the central issue of this matter - whether Range's products were present in Appellant's water supply. While there are

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undoubtedly constituents in Mr. Kiskadden's water consistent with testing completed on and under Range's failed Drill Cuttings Pit and leaking Impoundment without knowing what comprises the products, Appellant is faced with the greater challenge of ascertaining whether those chemical constituents in Appellant's water were acknowledged by Range as being used at the Yeager Site. 40. Furthermore, by its failure to disclose information regarding all of the products and

chemicals and components of those products used at the Yeager Site and its failure to comply with the July 19th Order of Court, Range is provided the ability to create doubt where no doubt should exist. IV. 41.
ARGUMENT

Appellant seeks to have this Honorable Court find Range in contempt and order

sanctions against Range in the form of an "adverse inference" in the Appeal before the Board. 42. Where evidence which would properly be part of a case is within the control of a

party in whose interest it would naturally be to produce it, and without satisfactory explanation he failed to do so, the court in a bench trial, or jury in a jury trial, may draw an inference that it would be unfavorable to that party. Magette v. Goodman, 771 A.2d 775, 780 (Pa. Super. 2000). A judge should infer that the withheld evidence would be adverse to the party who is responsible for withholding it to compensate those whose legal rights are impaired by the withholding. Manson v. Southeastern Transportation Authority, 767 A.2d 1, 5 (Pa. 2001). An adverse inference is commonly applied where "relevant evidence" is no longer available. Electric Tool Corporation, 13 F.3d 76, 78-9 (3d Cir. 1994). 43. Appellant has the burden of proving that the chemicals in his water supply are Schmid v. Milwaukee

attributable to Range's chemicals used at the Yeager Site. Timely identification of the proprietary chemicals is important to Appellant's case-in-chief. To date, despite repeated requests by the

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Appellant and an Order of this Honorable Court requiring the information to be produced, all chemicals, compounds and constituents used at the Yeager Site have not been provided, in violation of this Court's Order. 44. The information is properly part of the case as it is a main factor in the element of

causation. The absence of this information, caused by Range's use of products where the full chemical composition is unknown and the Department's permitting this practice despite it also operating in the dark, creates an informational deficiency in the case. 45. The Board, recognizing the importance and necessity of this information and over

Range's objection that it does not know all of the chemicals that comprise its products, has granted Appellant's Motion to Renew Motion to Compel and, by Court Order dated July 19, 2013, ordered Range to identify any and all chemicals in the products used at the Yeager Site on or before August 20, 2013, later extended to August 26, 2013. 46. Despite the public perception that the Pennsylvania Department of Environmental

Protection has access to and knowledge of the chemicals used and placed into the Pennsylvania environment, it does not, and Range is the only party who has access to the information regarding the chemical makeup of the products it used at the Yeager Site. The information identifying all components and proprietary chemicals used in Range's products is within Range's exclusive control and, despite being ordered to do so by this Honorable Court, Range has not disclosed all chemicals in all products used at the Yeager Site. 47. Range is the only party in control of the information and should have full, accurate

knowledge and information regarding what it has used and brought onto the Yeager Site, not only after it has done so, but, more importantly, before it purchases and uses such products and chemical constituents at drill sites in Pennsylvania.

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48.

Furthermore, Range is in control of which manufacturers and subcontractors it

chooses to purchase chemicals and products from, and failed to collect information regarding the chemical constituents and makeup of products that it purchased from manufacturers and used at the Yeager Site before using such products and chemicals. Range should not be rewarded for its inability to collect complete information or mandate full disclosure prior to its placement into the Pennsylvania environment. 49. Information regarding the chemicals in Range's products could serve to further

establish that Range's products used at the Yeager Site contaminated Appellant's water and negate a defense by Range and the Department that both are unsure. As such, if the information were exonerating, it would naturally be in Range's best interest to produce the information. 50. Range cannot provide any satisfactory explanation for its failure to identify the

products, chemicals and components it utilized at the Yeager Site. As Range places these products, chemicals and components into the Pennsylvania environment during its drilling operations, it is responsible for ascertaining complete information from its manufacturers and subcontractors prior to a product's use. 51. Range has acknowledged in its annual 1 OK Reports to the United States Securities

and Exchange Commission that its operations are subject to risks from "pipeline ruptures or spills, pollution, releases of toxic natural gas and other environmental hazards and risks" and that these may result in "injury or loss of life; severe damage to or destruction of property, natural resources. ; [and] pollution or other environmental damage...." See, Exhibit 19, at p. 21. Therefore, Range has recognized and appreciates the risk involved in its operations but nevertheless has failed to obtain information about all ofthe chemicals in all ofthe products it uses
prior to engaging in these operations.

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52.

One can assume, based on Range's failure for over a year to produce requested and

court-ordered information and the presence of known constituents that were used and spilled at the Yeager Site and present in Appellant's drinking water, that the information could further establish that Range's products used at the Yeager Site were comprised of chemicals that are present in Appellant's drinking water supply. 53. Range cannot benefit from its own withholding of evidence.
Manson v.

Southeastern TransportationAuthorily, 767 A.2d 1, 5 (Pa. 2001); Duquesne Light Co. v. Woodland Hills School District, 700 A.2d 1038, 1050 (Pa. Cmwlth. 1997),"

54.

As the evidence Range has failed to provide is not only relevant, but fundamental,

to Appellant's case, Appellant is prejudiced by Range's failure to produce the information and Range and the Department benefit from this lack of information. 55. Therefore, the Board must infer that Range's failure to produce the information

ordered to be produced by this Honorable Court identifying all chemicals and components of all products, including the proprietary chemicals in the products used at the Yeager Site, is due to the fact that the information is unfavorable to Range. WHEREFORE, Appellant respectfully requests that this Honorable Court enter an order finding Range in contempt and precluding Range from arguing that the chemicals and components of the products that it used at the Yeager Site did not contaminate Appellant's water, declaring that the chemicals and components of the products that Range used at the Yeager Site contaminated Appellant's drinking water, and, as a result, declaring that the Department's determination that the products and chemicals used by Range in its natural gas drilling operations at the Yeager Site did

Likewise, the Department should not benefit from its failure 10 require disclosure of this information prior to its use and/or prior to determining whether chemicals and constituents at drill sites impacted Appellant's water. Neither Range's usage of products without knowledge of their chemical makeup or harmful effects should be rewarded nor should the Department's complacency. 21

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not impact Appellant's water is null and void.

Respectfully submitted,

Kendra L. Smiti, Esquire Counselfor Appellant

4') dW4'k t-

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COMMONWEALTH OF PENNSYLVANIA ENVIRONMENTAL HEARING BOARD LOREN KISKADDEN Appellant,
Docket No. 2011-149-R

vs. DEPARTMENT OF ENVIRONMENTAL PROTECTION Appellee.
VS.

RANGE RESOURCES - APPALACHIA, LLC, Permittee.

CERTIFICATE OF SERVICE

I hereby certify that onthis 17th day of September, 2013, I am serving the foregoing Motion For Contempt and For Sanctions in the Form of an Adverse Inference upon the persons and in the manner indicated below, which service satisfies the requirements of 25 Pa. Code § 1021.34: Service by EHB c-filing upon the following: Richard T. Watling, Esq. Michael J. Heilman, Esq. Office of Chief Counsel 400 Waterfront Drive Pittsburgh, Pennsylvania 15222-4745 Kenneth Komoroski, Esq. Matthew Sepp, Esq. Fulbright & Jaworski LLP Southpointe Energy Complex 370 Southpointe Blvd., Suite 100 Canonsburg, Pennsylvania 15317

endra L. Smit ,Esquire
Counselfor Appellant

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COMMONWEALTH OF PENNSYLVANIA ENVIRONMENTAL HEARING BOARD LOREN KISKADDEN Appellant,
Docket No. 2011-149-R

vs. DEPARTMENT OF ENVIRONMENTAL PROTECTION Appellee.
I1

RANGE RESOURCES - APPALACHIA, LLC, Permittee.

ORDER OF COURT

AND NOW, to-wit, this

day of

, 2013, upon

consideration of the Appellant's Motion for Contempt and for Sanctions in the Form of an Adverse Inference, it is hereby ORDERED, ADJUDGED and DECREED that Appellant's Motion for Contempt and for Sanctions in the Form of an Adverse Inference is GRANTED and Perruittee, Range Resources-Appalachia, LLC is in contempt of the July 19, 2013 Order of the Environmental Hearing Board. IT IS FURTHER ORDERED, ADJUDGED and DECREED that Appellee, the Pennsylvania Department of Environmental Protection, and Permittee, Range ResourcesAppalachia, LLC, are precluded from arguing that the chemicals and components of the products that Permittee used at the Yeager Site did not contaminate Appellant's water, declaring that the chemicals and components of the products that Permittee used at the Yeager Site contaminated

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Appellant's drinking water, and, as a result, declaring that the Pennsylvania Department of Environmental Protection's determination that the products and chemicals used by Range at the Yeager Site in its natural gas drilling operations did not impact Appellant's water is null and void. BY THE COURT,

J.

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