PA Environment Digest Blog: Environmental Hearing Board Denies EQT Shale Gas Motion To Exclude Evidence Of Medical Conditions, Toxicology Reports Related To A Landowner Appeal Of A DEP Water Supply Contamination Determination

On March 27, the Environmental Hearing Board issued an Opinion and Order denying a motion by EQT Chapp, LLC, supported by DEP, to exclude evidence related to medical conditions and toxicology reports in connection with a landowner’s appeal of DEP’s determination that the agency could not conclude his water supply was adversely impacted by oil and gas operations. EHB Docket 2023043

The appeal was brought by Bryan Latkanich who, with his son, lives in Deemston Borough, Washington County and leased his mineral rights to Chevron who then sold the lease to EQT Chapp, LLC.

Chevron drilled two shale gas wells on the Latkanich property approximately 500 feet from the family’s water supply starting in 2011. The wells were plugged in 2020.

On April 22, 2022, the Latkanich’s filed a complaint with DEP requesting an investigation of their water supply saying it was impacted by oil and gas operations, including PFAS ‘forever chemicals.’

On April 20, 2023, DEP issued its determination letter stating it could not conclude oil and gas operations had impacted the Appellant’s water supply.

On May 8, 2023, Latkanich filed an appeal of the DEP letter with the EHB alleging, among other provisions, he and his minor son have had ongoing medical issues and health complications which he attributes to oil and gas operations.

He pointed to a series of medical visits and diagnoses medical professionals called, “hydraulic fracking/volatile hydrocarbon exposure,” “respiratory irritation from hydrocarbon exposure,” “neurotoxicity,” and “radiation exposure.”

As evidence of these diagnoses and conditions, the Latkanich’s provided toxicology reports and a copy of his son’s May 1, 2018 medical report.

EQT Motion To Dismiss

From the EHB Opinion: “By its motion [“in limine”], EQT seeks to “preclude the admission of any evidence of medical conditions, physical reactions, and/or toxicology results.”

“It cites to various statements in the notice of appeal, discovery responses and emails among counsel which it contends show a reliance by the Appellant on evidence of medical conditions and toxicology testing in support of his claim that oil and gas operations have impacted his water supply.

“EQT argues that such evidence is not probative of contamination of the Appellant’s water supply.

“It asserts that even if an expert were to opine that a particular medical condition or toxicity result were caused by toxic exposure, it does not prove that the Appellant’s water supply was contaminated by oil and gas development.”

“Acknowledging that discovery is still ongoing, EQT states that it “seeks an early determination on the admissibility of medical conditions and/or physical reactions because such a determination would increase the efficiency of discovery, reduce the cost of discovery and limit discovery related disputes between the parties.”

“The Department [DEP] supports EQT’s motion and agrees with EQT that evidence of medical conditions and toxicology results for the Appellant and his son are irrelevant to the issue before the Board.

“It further argues that permitting the introduction of such evidence would unreasonably and unnecessarily escalate the time and cost to litigate this matter.”

Ruling

From the EHB Opinion: “While we recognize EQT’s desire to streamline discovery in this matter, we cannot conclude at this time that the Appellant’s and his son’s medical records and toxicology results are not relevant to this proceeding.

“At this stage, it [is] difficult for us to know what evidence may or may not be relevant.”

“We understand that the purpose of EQT’s motion is precisely for the very purpose of limiting discovery; however, at this stage of the proceeding, we are hesitant to exclude evidence that may well turn out to be probative [proving].

“These reports, “when presented in context and with a proper foundation at the hearing might well prove to be admissible” notwithstanding EQT’s and the Department’s arguments to the contrary.”

“A motion in limine may not be used for the purpose of disposing of issues in a case.

“Although EQT’s motion is carefully worded to ask for the exclusion of evidence rather than a ruling on any of the issues in the case, it nonetheless requires us to consider the viability of some of the Appellant’s claims.

“A motion in limine is not the proper vehicle to resolve such disputes.”

“Here, EQT has asked for the exclusion of all “evidence of medical conditions, physical reactions, and/or toxicology results.”

“To the extent EQT is seeking to dismiss any claims in the notice of appeal alleging that the Department failed to fulfill its duties under the Oil and Gas Act or Article I, Section 27 [Environmental Rights Amendment] by failing to consider toxicology results and the Appellant’s son’s May 2018 diagnosis when conducting its investigation, this determination cannot be made in the context of a motion in limine.

“Finally, the Department argues that even if the Board finds the toxicology and medical evidence to be relevant, it should nonetheless be excluded because its probative value is insufficient to warrant the extensive discovery that will be needed to litigate these claims.”

The EHB denied the EQT motion. Discovery will proceed in the case.

Click Here to read the entire Opinion.

Resource Links - Latkanich Family:

-- Environmental Hearing Board Will Hear Key Arguments On Appeal By A Washington County Family Alleging Shale Gas Drilling Contaminated Their Water Supply With PFAS And Other Chemicals {October 2023]

-- DEP: Widespread Presence Of PFAS ‘Forever Chemicals’ In Fresh Water May Have Led To ‘Inadvertently’ Using Contaminated Water For Fracking Gas Wells In Washington County [May 2023]

-- Washington County Family Lawsuit Alleges Shale Gas Company Violated The Terms Of Their Lease By Endangering Their Health, Contaminating Their Water Supply And Not Protecting Their Land [November 2022]

Resources Links - Compliance:

-- Criminal Convictions; Record Penalties, Restitution Of Over $158.3 Million Highlight Big Shale Gas, Related Petrochemical Industry Compliance History In Pennsylvania [March 2025]

-- DEP Reports 575 Water Supply/Stray Gas Complaints About Oil & Gas Operations In Last 2 Years; Investigation Can Take A Year, Sometimes 2-3 To Find Those Responsible [March 2025]

-- Daily Grind Living Next To Oil & Gas Industry: Spills, Polluted Water Supplies, Smells Like Gas, Noise, Air Pollution, Explosions, Truck Traffic, Erosion, Radioactive Waste, Gas Flares, Dust, Lights, Road Dumping Waste, Abandoned Wells [March 2025]

-- DEP To Recommend Environmental Quality Board Accept A Petition For Study To Increase Setbacks From Shale Gas Wells At April 8 Meeting [March 2025]

-- PA American Water Identifies Water Source For New Public Water System To Replace Water Wells Contaminated By Shale Gas Fracking 20 Years Ago In Dimock Twp., Susquehanna County [March 2025]