PA Environment Digest Blog: Environmental Hearing Board Denies CNX Gas Company Motion To Throw Out Ullom Family Appeal Over Water Loss In Washington County; Scope Of Rebuttable Presumption Under Review

On February 3, the Environmental Hearing Board issued an opinion denying a motion by CNX Gas Company to throw out an appeal by James and Barbara Ullom over water loss allegedly caused by fracking at the CNX NV110 shale gas well pad in East Finley Township, Washington County. EHB Docket #2024114

The Board ruled the appellants met their burden of establishing a prima facie case and allowed the appeal to proceed.

The Board also said it is reviewing whether the rebuttable provision of the Oil and Gas Act applies to just instances of water contamination as CNX argued or whether it also applies to cases of water loss.

The rebuttable presumption provision says a shale gas driller is assumed to be responsible for pollution of a water supply if it is within 2,500 feet of a well bore and the pollution occurred within 12 months of completion of the well.

[Note: This is the same case where the Environmental Hearing Board agreed with a Center for Coalfield Justice assertion there was “acute” danger in CNX misusing a deposition in the case to “punish” an environmental advocate for her advocacy against CNX and issued an order putting certain boundaries on the deposition of the witness. Read more here.]

Background

The case involved a July 26, 2024 appeal to the Board by James and Barbara Ullom over a determination by the Department of Environmental Protection that CNX NV110 shale gas well pad operations did not cause the diminution of the Ulloms’ water supply.

On November 3, 2023, the Ulloms contacted CNX and reported that they had experienced a total loss of water from a water well on their property designated as well W2. According to CNX, well W2 is approximately 890 feet east of the nearest gas well on the NV110 pad.

The Department commenced an investigation, including inspecting water sources on November 13, 2023 and taking water samples for testing on November 27, 2023.

On June 28, 2024, the Department issued a Negative Determination stating that it could not conclude that the Ulloms’ water supply was adversely affected by oil and gas activities.

In their notice of appeal, the Ulloms, proceeding pro se, made the following averments: 1) the Department incorrectly stated the date that W1, another well on the Ullom property, lost water; 2) the water loss is related to vibrations caused by CNX drilling through a longwall panel located below the Ulloms’ property; 3) the Department failed to establish that CNX was not responsible for the water loss; 4) CNX should be subject to a rebuttable presumption of liability since the Ullman’s well is within 890 feet of the nearest gas well on the CNX well pad; and 5) the Ulloms received alleged verbal assurances from a representative of CNX that CNX would make them whole in the event of water loss.

CNX Motion

The CNX Gas Company motion for summary judgement, which DEP did not join, argued the Ullmans did not make a prima facie case saying “to meet their burden of proof, they must demonstrate that CNX’s oil and gas operations at the NV110 well pad caused their water loss. CNX contends that the Ulloms have failed to come forward with sufficient facts or expert testimony to meet this burden.”

The Board said, “we believe that an overall reading of the Herrmann/Abel expert report [for the Ullmans] sets forth a sufficient basis for the Ulloms to establish a prima facie case. The report includes a discussion of the “regional geology/hydrogeology” and provides factual assertions in support of each of the report’s conclusions.”

Rebuttable Presumption

The Board also said “CNX seeks summary judgment on the Ulloms’ claim that CNX should be subject to a rebuttable presumption that its oil and gas operations at the NV110 well pad caused the water loss at well W2.

“CNX points out that the rebuttable presumption set forth in Section 3218(c)(2) of the Oil and Gas Act applies only to claims of water contamination, not water loss.”

“That section establishes a rebuttable presumption that an unconventional well operator is responsible for pollution of a water supply “if (i) the water supply is within 2,500 feet of the unconventional vertical well bore; and (ii) the pollution occurred within 12 months of the later of completion, drilling, stimulation or alteration of the unconventional well.”

In allowing the Ullmans to amend their appeal, the Board said it rejected a request to add a claim of water contamination to the appeal because their original complaint to CNX and to DEP involved water loss.

The Board said then that “We understand paragraph 24 of the Ulloms’ amended appeal to simply be an argument in support of why it believes the rebuttable presumption of Section 3218(c)(2) should have been applied in the Department’s investigation of its complaint of water loss.”

In this opinion, the Board said, “As to the Ulloms’ assertions that a rebuttable presumption should be applied to their complaint for water loss pursuant to the Environmental Rights Amendment, theories of tort and property law, or based on an alleged oral promise made to Mr. Ullom by a representative of CNX, those claims involve questions of law and fact that have not been adequately addressed in the parties’ briefs.

“We believe it would be more prudent to address any such arguments with the benefit of a fully developed record.”

Click Here for a copy of the opinion.

Resource Link:

-- Environmental Hearing Board Agrees There Is ‘Acute’ Danger In CNX Misusing A Deposition In An Appeal Before The Board To ‘Punish’ An Environmental Advocate For Her Advocacy Against CNX [PaEN]

PA Oil & Gas Industry Public Notice Dashboards:

-- PA Oil & Gas Weekly Compliance Dashboard - Jan. 31 to Feb. 6 - 10 More Conventional Abandoned Well Violations; Failure To Notify DEP Of Water Contamination; Casing/Cement Failure [PaEN]

-- Washington County Residents On Water Wells Not Aware A MarkWest Pipeline Drilling Project Lost 1.2 Million Gallons Of Drilling Fluid In Mount Pleasant & Robinson Townships [PaEN]

-- Environmental Hearing Board Denies CNX Gas Company Motion To Throw Out Ullom Family Appeal Over Water Loss In Washington County; Scope Of Rebuttable Presumption Under Review [PaEN]

-- PA Oil & Gas Industrial Facilities: Permit Notices, Opportunities To Comment - February 7 [PaEN]

-- DEP Invites Comments On Permit For Homer City Generation 5.8 Mile, 30-Inch Natural Gas Pipeline To Serve Proposed Data Center 4.5 GW Power Plant In Indiana County [PaEN]

-- DEP Invites Comments On Columbia Gas Permit For Project To Protect 2 Major Natural Gas Pipelines From Impacts Of Longwall Coal Mining In West Finley Twp., Washington County [PaEN]

-- Susquehanna River Basin Commission Approved 74 Shale Gas Well Pad Water Use General Permits In December, January; 471 In 2025 [PaEN]