Range Resources Docket 2011-149-R

EXHIBIT 1 09/17/2013

07/19/2013

MR LOREN KISKADDEN

V .

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION and RANGE RESOURCES APPALACHIA, LLC, Permittee

EHB Docket No. 2011-149-R

ORDER

AND NOW, this 19t1 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:

I) Appellant's Motion to Compel production of documents responsive to Appellant's

Second Request for Production Nos. 1, 2-7, 9-13, 19,22-26, and 28-29 is granted.

2) Permittee shall produce such additional documents on or before August 20, 2013.

3) If Permittee has already provided all documents responsive to any of the above

Requests for Production then it shall provide a signed verification in accordance with

the Pennsylvania Rules of Civil Procedure so indicating.

4) Appellant's Motion to Compel further responses to Appellant's First Set of

Interrogatories, Nos. 3 & 7 is granted and Nos. 4-5 is denied.

5) Permittee shall further respond to Interrogatories Nos. 3 & 7 on or before August20, U

2013.

6) Appellant's Motion to Compel admissions to Appellant's Second Set of Admissions

____- NOS44j48v34 & 52 is granted. EXHIBIT

09/17/2013

07/19/2013 k

7) Permittee shall either admit or deny the above Requests for Admission on or before

August 20, 2013.

8) Appellant's Motion to Compel admissions to Appellant's Second Set of Requests for

Admissions Nos. 45,47, 48, 49 & 50 is denied.

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 full information regarding all of the

chemicals and components of those particular products.

ENVIRONMENTAL HEARING BOARD

THOMAS W. RENWAND Chief Judge and Chairman

DATED: July 19,2013

c: For the Commonwealth of PA, DEP: Michael J. Heilman, Esquire Richard Watling, Esquire Office of Chief Counsel - Southwest Region

09/17/2013

07/19/2013

j EHB Docket No. 2011-149-R Page 3

For Appellant: Kendra L. Smith, Esquire John M. Smith, Esquire SMITH BUTZ LLC 125 Technology Drive, Suite 202 Bailey Center I Canonsburg, PA 15317

For Permittee: Kenneth S. Komoroski, Esquire Jeremy A. Mercer, Esquire Matthew Sepp, Esquire Steven E.H. Gibbs, Esquire FULBRGHT & JAWORSKI, LLP Southpointe Energy Complex 370 Southpointe Blvd, Suite 300 Canonsburg, PA 15317

Michael C. Steindorf, Esquire Tyler H. Lipp, Esquire FULBRIGHT & JAWORSKI, LLP 2200 Ross Avenue, Suite 2800 Dallas, TX 75201-2784

Dennis St. J. Mulvihill, Esquire Bruce E. Rende, Esquire Erin J. Dolfi, Esquire ROBB LEONARD MIJLVIHILL, LLP 500 Grant Street, 73rd

Floor Pittsburgh, PA 15219

09/17/2013

EXHIBIT 2 09/17/2013

p

COMMONWEALTH OF PENNSYLVANIA ENVIRONMENTAL HEARING BOARD

LOREN KISKADDEN )

Appellant. Docket No. 2011-149-R

vs.

DEPARTMENT OF ENVIRONMENTAL PROTECTION

Appellant,

VS.

RANGE RESOURCES - APPALACHIA, LLC,

Permittee.

PERMITTEE RANGE RESOURCES - APPALACHIA, LLC'S RESPONSES AND OBJECTIONS TO APPELLANT'S REQUEST FOR PRODUCTION OF DOCUMENTS AND REQUEST FOR ADMISSION

Pursuant to 25 Pa. Code 1021.102 and Rules 4009.12 and 4014 of the Pennsylvania

Rules of Civil Procedure, Permittec Range Resources - Appalachia, LLC ("Range"), hereby

serves these Responses and Objections ("Responses") to Appellant's Request for Production of Documents and Request for Admission (collectively, "Requests").

GENERAL OBJECTIONS

Range makes the following General Objections to the Requests. These General

Objections are part of the Responses to each and every Request. The assertion of the same,

similar, or additional objections in the individual objections to these Requests, or the failure to

assert any additional objections, does not waive any of Range's General Objections as set forth

below:

EXHIBIT

09/17/2013

RESPONSE: In addition to the General Objections, which are incorporated by

reference, Range objects to this Request as overly broad and unduly burdensome. Range also

objects to this Request as seeking to expand the requirements of the Pennsylvania Rules of Civil

Procedure. Range objects to this Request as premature. Range has not yet identified and

disclosed its testifying experts. Range will respond to this Request pursuant to applicable

Pennsylvania rules of Civil Procedure and Board Orders.

37. Please produce any and all documents, including but not limited to MSDS, which

identify all proprietary chemicals, substances and products used to treat the Yeager

Impoundment and Drill Cuttings Pit.

RESPONSE: In addition to the General Objections, which are incorporated by reference, Range also objects to this Request as seeking to expand the requirements of the

Pennsylvania Rules of Civil Procedure and applicable Pennsylvania law, which only require AIML Range to produce documents in its possession or control. Range objects to this Request as

improperly seeking confidential and proprietary information. Range objects to this Request as

vague, ambiguous and compound because of the use of the undefined terms "identify,"

"chemicals," "substances," "products," and "treat." Finally, Range objects to this Request as

seeking documents which are either already in Appellant's or Appellant's counsel's possession

or are equally accessible to Appellant through numerous document requests to and file reviews

already conducted by Appellant or Appellant's counsel at DEP or through third-party subpoena

productions.

Subject to and without waiving the foregoing objections, Range will produce responsive, non-priy~g!g itpaiQJk&Ludi.doun1entsexisL

9573*4414 29

09/17/2013


kor identify all proprietary chemicals, substances and products used in any drilling fluid or mud at the Yeager Site.

RESPONSE In addition to the General Objections, which are incorporated by reference, Range also objects to this Request as seeking to expand the requirements of the Pennsylvania Rules of Civil Procedure and applicable Pennsylvania law, which only require

Range to produce documents in its possession or control. Range objects to this Request as improperly seeking confidential and proprietary information. Range objects to this Request as vague, ambiguous and compound because of the use of the undefined terms "identify,"

"chemicals," "substances," and "products." Finally, Range objects to this Request as seeking documents which are either already in Appellant's or Appellant's counsel's possession or are

equally accessible to Appellant through numerous document requests to and file reviews already

3

conducted by Appellant or Appellant's counsel at DEP or through third-party subpoena

productions.

Subject to and without waiving the foregoing objections, Range will produce responsive, non-privileged documents in its possession to the extent such documents exist


identify all proprietary chemicals, substances and products used in any drilling fluid or mud at

the Sicrezega Drill Site.

RESPONSE: In addition to the General Objections, which are incorporated by refermw-, Range objects to this Request as overly broad and unduly burdensome. Range also objects to this Request as seeking to epand the requirements of the J'ejnsyjvania Rules of Civil Procedure, which only require Range to produce documents in its possession or control Range

09/17/2013

42. Please produce any and all documents., including but not limited to MSDS, which

identify all proprietary chemicals, substances and products used in stimulating the Yeager Well

7FL

RESPONSE: In addition to the General Objections, which are incorporated by reference, Range also objects to this Request as seeking to expand the requirements of the Pennsylvania Rules of Civil Procedure and applicable Pennsylvania law, which only require

Range to produce documents in its possession or control. Range objects to this Request as improperly seeking confidential and proprietary information. Range objects to this Request as vague, ambiguous and compound because of the use of the undefined terms "identify,"

"chemicals," "substances," and "products." Range objects to this Request as seeking documents which are either already in Appellant's or Appellant's counsel's possession or are equally

accessible to Appellant through numerous document requests to and file reviews already

conducted by Appellant or Appellant's counsel at DEP or through third-party subpoena

productions. Finally, Range objects to this Request to the extent it seeks information and/or documents that are subject to the attorney-client privilege, attorney work product privilege, consulting expert privilege, or any other applicable legal protection.

Subject to and without waiving the foregoing objections, Range will produce responsive, non-privileged documents in its possession to the extent such documents exist.

41 Please produce any and all documents relative to any spills, releases, discharges

and/or reniediatlon which have occurred or are presently occurring at the Yeager Drill Site.

RESPONSE: In addition to the General Objections, which are incorporated by to this Request as also

objects to this Request as seeking to expand the requirements of the Pennsylvania Rules of Civil

931492A 32

09/17/2013

EXHIBIT 3 09/17/2013

Transcript of the Testimony of

Date: December 17, 2012 Volume:

Case: Loren Kiskadden v. Department of Environmental Protection

Eagle Feather Reporting Phone: 724-746-3383

Fax: 724-746-3383 Email:[email protected]

[ IM

09/17/2013

31 33

1 request for productions 37 through 39 and 1 chemicals that are in this particular product. 2 question 42 we asked for the identification of 2 MR.. KOMOROSKJ: And so I want to b 3 all proprietary chemicals used by Range 3 clear, if we have it, we'll provide it. We 4 specific to the Yeager site. Again, we 4 wont say that we have it but we won't disclose 5 received some things from the DEP that have 5 it Unless - I can't imagine this to be the 6 Sierzegas on it. We didn't receive anything 6 case -- unless we have some confidentiality 7 from you guys responsive to that. 7 agreement. 8 So, again, I wanted to clarify we're not S But the way things typically work is Range 9 looking for anything from Sierzegas. We're 9 will ask to have a certain situation addressed.

10 looking for just the Yeager site. And, in 10 And a vendor will come in and say I am going t 11 particular, some of the documents we did 11 use this and I will represent that it will 12 receive from the DEP, there's MSDS sheets that 12 solve your problem or the best we have to try 13 have been produced. But the MSDS sheets lists 13 to solve your problem. But we don't typically 14 for instance, on a couple products 100 percent 14 ask them how chemically it works or what the 15 proprietary. 15 constituents are. 16 So what we're looking for when we say 16 So it's typically the case that we would 17 proprietary we're looking for the actual 17 not know what - if they don't share with us. 18 chemicals, the names of them. [can't believe 18 Of if they have a name and its like a Beta 19 there's anything exotic that I haven't heard of 19 product or it's Beta 900. If we know it's Beta 20 before. But the fact of the matter is on the 20 900, we'll tell you what that is. And whatever 21 MSDS sheets, some of the things that the DEP 21 Material Safety Data Sheet they made available 22 provided to us that they believe were used at 22 for it, we can provide that. 23 Yeager indicates that they are 100 percent 23 1 just don't want to overcommit to 24 proprietary so we have no idea what that might 24 something. And my view is if it's available 25 be. 25 you should have it and we should have it. So

32 34

1 MR. KOMOROSIU: Well, that one, if we 1 if it's available, you'll have it and we'll 2 have the information on what the proprietary 2 have it 3 chemicals are, we'll provide it If we don't 3 MS. SMITH: So I guess that's the 4 have it because it's - because the vendor 4 point that were kind of stuck on is if it's 5 considers it proprietary, then we won't 1 5 available. Because for us there's no other way 6 don't know if there's -- I don't know what we 6 to get it other than to ask you guys for it. 7 could do better than that. 7 MR. KOMOROSKI: Right 8 MS. SMITH: Okay. Because here's my 8 MS. SMITH: So there is no other 9 issue with that. We're not asking for - so 9 avenue for us to go. And, obviously, with

10 that we're clear, we're not asking for the 10 regard to our burden to have to prove on this 11 breakdown or formula, so to speak. We're 11 appeal it becomes essential to know exactly 12 asking for what the actual chemical was. 12 what's in there in terms of making a 13 MR, KOMOROSKI: Okay. 13 hydrogeological connection between the site an 14 MS. SMITH: You know what I mean. 14 Mr. Kiskadden's water supply. 15 And my understanding is with a lot of vendors 15 Sowe do have an issue with that I 16 or manufacturers of this the thing they hold 16 understand what youre saying that Range may 17 near and dear as proprietary is the actual 17 not know. But, again, were not in a position 18 formulation of it Because that's unique in 18 where we can go and ask, you know, Range's 19 and of itself. That's really what they attempt 19 subcontractor, whatever, for that proprietary 20 to protect. It's not necessarily the chemicals 20 information. That's not something we can do or

21 that are used. Its the quantity of the 21 our own. 22 chemicals used in the product. 22 So that's kind of sticking point with me. 23 So at this point what we're asking for when

23 Because while I understand the position that 24 we're asking for the proprietary chemicals is 24 Range is in in not knowing some of those 25 exactly what What are the names of the 25 things, its something that we do need to know

Eagle Feather Reporting [email protected] 724-746-3383

09/17/2013

35 37 1 for purposes of this case. 1 motions. 2 MR. KOMOROSKJ: How about this? Hoi 1 2 Again. I would rather have all the 3 about if we don't have the information on a 3 information out there. I mean, let's find out 4 particular chemical, then we will ask the 4 if there is anything that we used that ended up 5 vendor for that information. As Range we'll 5 in Mr. Kiskadden's water supply or didn't. An 6 ask for it and provide you what we obtain. And 6 whether there's official negative inference or 7 then go on from there.

7 not,inrnymind,thelackof -- theabsenceof 8 MS. SMITH: Well, I am agreeable to 8 information creates a void that is going to be 9 that as long as what you obtain from them is 9 filled with something. I would rather till the

10 we're not giving you the proprietary chemicals 10 void with facts and science rather than what 11 because that's not what we're going to do. You 11 someone might suppose from something that 12 understand the position it puts me in because 12 neither one of us occasioned. So, no, we'll 13 now I don't know what is there. You guys don't 13 use best efforts. 14 know what is there. 14 We can inform the Judge. If anyone has 15 So how do I go forward with this and saying 15 ideas how to get that information, obtain that 16 1 don't - you know, Judge I would love to tell 16 information well pursue it We want to 17 you what's in there and whether its shown up 17 accomplish - I have tried to put myself in 18 in my client's water but I can't tell you 18 your shoes. I don't do that well, but I - and 19 because Range doesn't know. 19 so I think that's a reasonable request. And 20 MR. KOMOROSKI: Right. 20 we'll do everything possible to get the 21 MS. SMITH: Because at that point - 21 information so that we know, okay, this 22 what I am trying to avoid with this, Ken, is 1 22 material was used at this concentration. And 23 am trying to avoid then asking the court for a 23 then compare that with what is found in Mr. 24 negative inference against you guys. I don't 24 Kiskadden's water supply and see if there is a 25 want to hold you accountable for something you 25 connection or not.

36 38 1 don't know. But at the same time if you're the 1 But if something is found there and you 2 only source of the information for us, I don't 2 say, well, we know 95 percent of what Range 3 have any options. 3 used, but we don't know that other five 4 MR. KOMOROSKI: Again, we'll work 4 percent, that's a problem. That's a problem 5 with you. I mean, we'll try to find a way to 5 for you and its a problem for us. 6 get the information. Range doesn't have any 6 MS. SMITH: Okay. So we can let the 7 interest in keeping it proprietary. 7 Judge know that we've tentatively reached an 8 MS. SMITH: Sure. 8 agreement on that And it's really contingent 9 MR KOMOROSKI: So to the extent -- 9 on what the manufacturers are willing to give

10 it would be better for Range to share - to get 10 Range to give to us. 11 all the proprietary information and to share it 11 MR KOMOROSKI: How that actually 12 with you. That way there can't be any issue of 12 evidences itself, yes. 13 negative inference or anything else. 13 MS. SMITH: Okay. And then request 14 MS. SMITH: So can we agree to this 14 44 was again, goes to water testing supplies 15 and maybe let the Judge know this on Thursday. 15 at the Yeager site itself. And I think we have 16 That what we've agreed to is that Range is 16 covered that. That you're willing to give us 17 going to go heck and ask for all the 17 any and all testing that was done along with 18 proprietary information. We just don't know 18 all the QA/QC data for each of the tests; is 19 where that stands yet? 19 that right? 20 MR. KOMOROSKI: Yes. We can do th 20 MR. KOMOROSKI: That's correct 21 And, again, I will commit to you that well use 21 MS. SMITH: Okay. So we're good on 22 our best efforts to get the information. I 22 that one. Then this one l think kind ofgoes 23 mean, conversely we won't use some half attemp t 23 back to - 1 was searching for it before when 24 to say, hey, it's okay for you to say it's 24 we were talking about the Notices of Violaxkr 25 proprietary but we've got to go through the 25 and any consent orders and that sort of thing.

-9(Pag35. to 3.8..1... Eagle Feather Reporting

[email protected] 724-746-3383

09/17/2013

EXHIBIT 4 09/17/2013

11 COMMONWEALTH OF PENNSYLVANIA

ENVIRONMENTAL HEARING BOARD'

MR. LOREN KISKADDEN

versus

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION and RANGE RESOURCES APPALACHIA, LLC, Perrnite


Verbatim transcript of hearing held at the

it Pittsburgh Office and Court Facility, Piafl Place, 301 Fifth Avenue, Suite 310, Pittsburgh, Pennsylvania, Thursday, December 20, 2012,

2:00 p.m.

BEFORE: THOMAS W. REN WAND, Administrative Law Judge

ADELMAN REPORTERS 302 Torrey Pine Drive it - Mars, Pennsylvania 16046 MOBIT

09/17/2013

I APPEARANCES: KENDRA L. SMIT ESQUIRE JENNIFER L FAHNESTOCK, ESQUIRE 125 Technology Drive, Suite 202 Bailey Center Canonsburg, PA 15317

ALSO PRESENT: Maryann Wesdock, Esquire Jim Pinta

LF-A

For - Mr. Loren Kiskadden

RICHARD I. WAILING, ESQUIRE Department of Environmental Protection Southwest Regional Counsel 400 Waterfront Drive Pittsburgh, PA 15222

For - Commonwealth of Pennsylvania, Department of Environmental Protection

KENNETH S. KOMOROSKI, ESQUIRE MATTHEW H. SEPP, ESQUIRE Southpointe Energy Complex 370 Soutpointe Boulevard Suite 300 Canonsburg, PA 15317

For Range Resources Appalachia, LLC

09/17/2013

3

Ii ADMINISTRATIVE LAW JUDGE RENWAND: As I

2 understand it, the first motion was you worked it out,

3 right?

4 MR. KOr4OROSKI: I believe so, yes.

5 ADMINISTRATIVE LAW JUDGE RENWAND: The motion to

6 compel.

7

MS. SMITH: Yes. Your Honor, with the motion to

i compel, we did meet and confer for two hours on Monday, 9 Mr. Komoroski and myself and Ms. Fahnestock.

10 ADMINISTRATIVE LAW JUDGE RENWAND: Great. Thank

I,

11 you.

12 MS. SMITH: And what resulted from that was Range

13 has agreed, and please correct me if I am wrong, Ken has

14 agreed to re-answer all of this request for admission,

15 request for production of documents that we put in a

16 letter, 17-page letter, to them as to what we had

17 objections to, has agreed to re-answer them.

18 There is only one caveat to that: that one is we

19 had requested a request for production of all the names

20 of all of the proprietary chemicals that were used up at

the Yeager site. Mr. Komoroski has made me aware that

22 he will do his best to get those from Range.

23 However, Range may not have some of that

241 information, because they would be with the third-party

tractor w-ho actually applied that or the manufacturer

09/17/2013

if of that particular product. And so obviously, I would

2 still have an issue with that but Mr. --

3

ADMINISTRATIVE LAW JUDGE RENWAND: If that comes

4 out where, you know, you don't get all of it or

whatever, just let me know. We will discuss that. I

6 understand that you can't guarantee that right now.

7

MR. KOMOROSKI: That is right, Your Honor. Yes,

8 we -- on absolutely every item that was part of the

9 motion to compel, we agreed to improve upon our answers

10 and our production and in all of the request for

11 admission, that we are going to provide much more

12 elaborate and helpful answers to those requests. And

13 the only one that I just simply wasn't able to -- what I 14 said as far as proprietary chemicals, if we don't -- we

15 don't have that information. The vendor has it.

16 We will use our best efforts. We will make

17 personal inquiry to the vendor, ask for them to provide

18 it and then we will inform the Board; and perhaps there

19 is something -- if we don't get it, perhaps there is

20 something the Board can do; so, perhaps everything that

21 is in the motion to compel, we agreed to improve upon

22 our answers, our production, redo more elaborately our

23 responses for request for admission; but on that one, it

24 is honestly the best that we can do.

I

!j

DMI-WI-STRA-T--IV--LAW_JUDG&REWWAND: Okay. I ----------------------------------------

09/17/2013

EXHIBIT 5 09/17/2013

S COMMONWEALTH OF PENNSYLVANIA ENVIRONMENTAL HEARING BOARD LOREN KISKADDEN

Appellant, Docket No. 2011-149-R

vs.

DEPARTMENT OF ENVIRONMENTAL PROTECTION

Appellant,

VS.

RANGE RESOURCES - APPALACHIA, LLC,

Permittee.

PERMITTEE RANGE RESOURCES - APPALACHIA, LLC'S

S

AMENDED RESPONSES AND OBJECTIONS TO APPELLANT'S REQUEST FOR PRODUCTION OF DOCUMENTS AND REQUEST FOR ADMISSION

Pursuant to 25 Pa. Code 1021 .102 and Rules 4009.12 and 4014 of the Pennsylvania

Rules of Civil Procedure, Permittee Range Resources - Appalachia, LLC ("Range"), hereby

serves these Amended Responses and Objections ("Responses") to Appellant's Request for Production of Documents and Request for Admission (collectively, "Requests").

GENERAL OBJECTIONS

Range makes the following General Objections to the Requests. These General

Objections are part of the Responses to each and every Request. The assertion of the same, similar, or additional objections in the individual objections to these Requests, or the failure to

assert any additional objections, does not waive any of Range's General Objections as set forth

below:

.

EXHIBIT

09/17/2013

F- L-1 RESPONSE; The "Excavation Summary Report," as referenced in the Yeager

Drill Pit Closure Plan, is just another name for the "Range Resources Post Remediation Summary Report" prepared by Weavertown Environmental Group. Despite the October 20,

2011 date on the report, it was not provided to Range until December 2011. Range submitted the

report on December 22, 2011. A copy of the report has already been produced and is available at

RRA-LK_002022.

35. Please produce copies of all expert reports, including all references relied upon

and cited, by any and all experts Range Resources intends on calling at the hearing/trial of this

matter.

RESPONSE; Range is unable to respond to this request because it has not yet

identified its testifying experts. Range will respond to this request as soon as possible. Please

feel free to contact Range's counsel to discuss this further.

36. Please produce copies of all resumes and/or curriculum vitae of any and all

experts Range Resources intends on calling at the hearing/trial of this matter.

RESPONSE: Range is unable to respond to this request because it has not yet

identified its testifying experts. Range will respond to this request as soon as possible.


identify all proprietary chemicals, substances and products used to treat the Yeager

Impoundment and Drill Cuttings Pit,

RESPONSE: At various times, the Impoundment and Drill Cuttings Pit were

treated with defoamers and biocides/bacteriacides. Range has produced the MSDS for each of

these products, as well as any other documents that help identify the products.

20

09/17/2013

.


identify all proprietary chemicals, substances and products used in any drilling fluid or mud at

the Yeager Site.

RESPONSE: Range has produced documents identifying the chemicals,

substances, and products used at the Yeager Site. The MSDS are often useful for developing

some understanding of what is in a particular chemical or product. However, they vary widely in

terms of usefulness. Some manufacturers include very little information about the actual

components of a particular product. As a. result, Range is currently in the process of seeking

additional information from manufacturers that have failed to provide enough information about

their products in the MSDS. We will supplement our responses and production as we receive

that information.

.

In addition, below is a list of the products that were used in connection with drilling fluid

or mud at the Yeager site:

ABS MUL ABS-40 Mud/Slurry ABS-40 Barite

S Ca! Carb Mix S Calcium Chloride S FLR S FM Sperse S FM VIS LS

FM WA U S GXM S ABSORB-N-DRY S HUBERCARS Q40-200 S PERMASEAL S TRU VIS

. __

09/17/2013

Drill Site. See Transcript of meet-and-confer at pp. 8-11, December 17, 2012. As a result,

Range will not respond to this request.


identify all proprietary chemicals, substances and products used in stimulating the Yeager Well

7H.

RESPONSE: Range has produced documents identifying the chemicals,

substances, and products used in the Yeager Well 7H, as well as others that are used above the

surface. The MSDS are often useful for developing some understanding of what is in a

particular chemical or product. However, they vary widely in terms of usefulness. Some

manufacturers include very little information about the actual components of a particular

product. As a result, Range is currently in the process of seeking additional information from

manufacturers that have failed to provide enough information about their products in the MSDS.

We will supplement our responses and production as we receive that information.

In addition, below is a list of the products that were used in the hydraulic fracturing

process at the Yeager 7H Well:

MC SS-5075 MC 8-8650 MCS-2510T FRW-200 HVG-i Unigel CMHPG Guar Product / Carboxymethlhydroxypropyl guar

The MSDS for each of these products has been produced.

43. Please produce any and all documents relative to any spills, releases, discharges

and/or remediation which have occurred or are presently occurring at the Yeager Drill Site.

RESPONSE; Range has produced documents relevant to any spills, releases,

discharges, and remediation at the Yeager Drill Site. Two of the spills/releases were particularly

23

09/17/2013

EXHIBIT 6 09/17/2013

0 SMITH BUTZ

A Ivw,ccoLr'n.n- C,.zre. Ar'*\t,' , A i L'

125 tedint1ogv Drive, Suite 201 5aiky Center I. Southrltnte Ct,oc*.urg.. PA 15317

February 22, 2013

74 EMAIL AND REGUL4R MAIL Kenneth Ko,noroski, Esq. Michael Steindort Esq. Matthew Sepp Esq. Fuibright & Jaworski, LLP 370 Southpointe Blvd., Suite 100 Canonsburg, PA 15317

Re: Loren Kiskadden v. Department of Environmental Protection EHB Docket No 2011-149-R

Dear Counsel:

I am in receipt of Range's Responses and Objections to Appellant's First Set of Interrogatories, Second Set of Requests for Production of Documents and Second Set of Requests for Admissions (collectively, the "Discovery Responses") relative to the above-captioned matter. I am writing pursuant to 25 Pa. Code 1021.93 in an attempt to confer with you and avoid the necessity of a Motion to Compel. I will address the issues with each section of the Discovery Responses in turn below.

INTERRIOGATORIES

First, reference is made to Range's Responses to Appellant's First Set of Interrogatories. Range did not provide full responses to Interrogatories Nos. 3, 4, 5 and 7. With regard to Interrogatory No. 3, Appellant asks that Range identify all products applied to McAdams Road to prevent the spreading of dust. Range explains that "water" was applied "either by Range or on behalf of Range." This response does not identify the type of water applied nor does it identify who applied the water to the road "on behalf of Range." Range's response that "water" was applied is insufficient in light of the fact that "water" can be used to refer to a 'variety of fluids in the context of this Appeal, i.e., brine water, frac water, flowback., produced water or freshwater. As a result, please identify the type of water applied to McAdams Road and specifically identify who, on behalf of Range, was responsible for its application. Such a response was and is required as part of Appellant's Interrogatory No. 3.

Interrogatories Nos. 4 & 5 ask that Range identify where "in the analytical resting" of the soil sampling for the Yeager Pad Drill Pit Closure and Water Quality Monitoring Plan does it indicate that acetone and methyl-ethyl ketone (MEK) were the result of laboratory contamination. In response to these Interrogatories, Range makes reference to an EPA document which described that acetone and MEK may be common laboratory contaminants.

EXWU Writer's email: k1sm thithsznithbutzlaw.cont

741121 . 24 74 12', u, ,n,.tht'u4ilj orfl

09/17/2013

Range Counsel February 22, 2013 Page 2

As explained in the Yeager Pad Drill Pit Closure and Water Quality Monitoring Plan, CEC relied on the fact that acetone and MEK are common laboratory contaminants to support its claim that they are "not suspected to be associated with drill pit operations." While the EPA document may be appropriate guidance, Range has failed to reference any actual analytical data which supports would support claim that acetone and MEK were in fact laboratory contaminants during the testing of soil samples S-Ol through S-17. Appellant requests that Range respond to these Interrogatories in order to properly answer the question originally presented.

Further, Range failed to respond to Interrogatory No. 7. In particular, Interrogatory No. 7 requested, in part, that Range identify whether certain listed products were used at the Yeager Wells, '(eager Impoundment and/or the Yeager Drill Cuttings Pit, including identification of for what purpose the products were used for. Range responded by stating that, "the following products pay have been used at the Yeager Drill Site." (emphasis in original). Additionally, Range further qualified its response by stating that, "the above list includes products that are commonly used for the purposes referenced above but may not have been used at the Yeaer Drill Site." (emphasis added). Because of these qualifications, Range has not answered Appellant's request

The question presented by Interrogatory No. 7 is specific to the Yeager Site. Of most importance, Appellant's inquiry attempts to differentiate those products utilized at specific aspects of the '(eager Site from those that were not used. Although Range identified some products used in "hydraulic fracturing," or "rotary air drilling," it failed to identify from those products which were used specifically at the Yeager Site. Rather, as explained above, Range qualified its response such that any product listed "may not have been used at the '(eager Drill Site." This entirely dodges the impetus of Interrogatory No. 7.

As a result. Appellant is requesting that Range provide a complete response to Interrogatory No. 7 by specifically identifying and including, without qualification, those products actually used at the '(eager Site, the chemical that make-up the product, and the purpose for which it was used.

REQUESTS FOR PRODUCTION OF DOCUMENTS

Second, reference is made to Range's Responses to Appellant's Second Set of Requests for Documents wherein Range failed to produce the documentation responsive to Request Nos. 1,2-7,9-13, 19,22-26 and 28-29. Appellant Will address each in turn below:

With regard to Request No. 1, Appellant requested all documents that Range has collected regarding Appellant's history. Range admitted to performing background research on Appellant, which includes criminal histories and complaints about Appellant's property. However, Range failed to produce any documents it collected relative to the same. Additionally, Range failed to raise a proper objection as Appellant is entitled to any documents that Range has collected regarding his personal life and history.

Writer's email: [email protected]

09/17/2013


Such documentation is discoverable and relevant as it will likely lead to evidence to be used at trial. As a result, Appellant requests that Range produce all documents encompassed by this Request

With regard to Request Nos. 2-7, Appellant requested a variety of documents relative to the March 24, 2010 release from the Yeager Drill Cuttings Pit. Specifically, Appellant made requests for documents, including but not limited to, "inspection reports, notes, memoranda, correspondence, emails, internal company memoranda, summaries and Notices of Violation" Range failed to produce any emails or internal company memoranda responsive to Appellant's requests made in Nos. 2-7 regarding the March 24, 2010 leak, subsequent excavation and clean-up and analytical testing which took place as an incident thereto. Appellant requests that Range supplement Its production to include these documents requested.

With regard to Request No. 9, Appellant requested "any and all documents," including "emails" and "internal company memoranda," regarding the flushing of the Yeager Drill Cuttings Pit with 30,000 gallons of water on July 14, 2011. Range again failed to produce any emails or internal company memoranda responsive to Appellant's request made in No. 9. Appellant requests that Range supplement its production to include these documents requested.

With regard to Request Nos. 10-13, Appellant requested "any and all documents," including "emails" and "internal company memoranda," regarding: 1) the March 2010 release from the Yeager Drill Cuttings Pit, 2) the soils removed from the Pit in May 2011; and 3) any rips, holes and/or tears in the liner of the Pit. While Range provided reference to some documents which were previously produced, none of these documents fell within Appellant's request for "emails" or other "internal company memoranda." Furthermore, in many cases, Range acknowledges that there are "many documents responsive to this request" Yet, Range again failed to produce any emails or internal company memoranda responsive to Appellant's requests made in Nos. 10-13. Appellant requests that Range supplement its production to include these documents requested.

With regard to Request No. 19, Appellant requested "any and all documents," including "emails" and "internal company memoranda," regarding the closure of the Yeager Impoundment. Range failed to produce any emails or internal company memoranda responsive to Appellant's request made in No. 19. Appellant requests that Range supplement its production to include these documents requested.

With regard to Request Nos. 22-23, Appellant requested "any and all documents" relative to drilling fluids bubbling through the stone of the cellar of Yeager Well 7H. Range responded that none of the documents referenced by Appellant refer to "drilling fluids bubbling through the stone." While Appellant used the term "bubbling" to describe the occurrence referenced in RRA-LK 004118, Appellant acknowledges that the document

A- Big

Writer's email: kIsmithsmithbutzawccm

09/17/2013


Nevertheless, Appellant provided reference to the proper documentation such that Range was on notice of what Appellant was referring to in his request. Range further responds that "there was no testing performed" and the "site inspection reports at the most significant documents that address the drill mud in the cellar of Yeager Well 714."

Please note that Appellant requested "any and all documents" - which is not limited to those Range deems "most significant" Furthermore, RRA-LK 004118 indicates that R.R. & Sons was on site digging for the cellars. Additionally, RR.A-LK 004119 indicates that Myzac was on site to clean up the drill mud in the stone pad. Appellant's request encompasses documents relative to these events and the work performed on site. Range's production fails to provide any documents regarding either of these events which were apparently taken in response to the "drill mud pumping through the stone" at Yeager 7Ff. Appellant requests that Range supplement its production to include these documents as well as any other documents as requested.

With regard to Request No. 24, Appellant requested documents regarding "any tiowback or produced water emptied into the Yeager Drill Cuttings Pit as referenced in RRA-KA 004099 [sic].... " Appellant's reference to "RRA-KA 004099" was a typographical error. The proper reference is to "RRA-LK 004099" which describes "flowback trickling into the pit" Notwithstanding this error, Appellant's request for any and all documents regarding flowback in the Yeager Drill Cuttings Pit stands. Range failed to produce any documents responsive to the same. As a result, Appellant requests that Range supplement its production to include these documents.

With regard to Request No. 25, Appellant requested documents addressing the rebuilding of the Yeager Drill Cuttings Pit. While Range produced certain documents which it believes "help summarize those activities," Range failed to produce any documentation indicating how the drill pit was rebuilt, what tasks were undertaken as a part of the rebuilding and who was responsible for those tasks. These documents would clearly fall within the purview of a request for "any and all documents" regarding the Yeager Drill Cuttings Pit rebuilding. As a result, Appellant requests that Range supplement its production to include documents responsive to this request

With regard to Request Nos. 26 and 28. Appellant requested the documents that Range relied upon in its August. 12, 2011 letter to state that: 1) "sodium bicarbonate" is typical groundwater in Appellant's area and 2) elevated levels of iron and manganese suggest that a water well penetrates a coal seam. In response, in part, Range stated that there are publicly available documents which would support this contention. Range further references an EPA study which "may be a useful resource." However, such an explanation fails to response to Appellant's request as presented. Appellant requested ft pecific documents that Range relied ,tpoii when it drafted its August 12, 2011 letter to

Mr. Kiskadden.

Writer's email: [email protected]

09/17/2013


In drafting its August 12, 2011, if Range solely relied upon the referenced EPA study as a basis for its contentions, please confirm that this is the case. Otherwise, Appellant requests that Range supplement its production to include any such docwnentation..

With regard to Request No. 29, Appellant requested any and all methane testing and corresponding QA/QC data. Range responded by providing what it believed in its "opinion" were the "three noteworthy documents" that relate to the methane analysis. However. Appellant requested "any and all" documents, not only those that Range has deemed "noteworthy:' If there are no other documents in existence other than those referenced by Range, please confirm that this is the case. Otherwise, Appellant requests that Range supplement its production to include all documents responsive to the request.

REOUESTS FOR ADMISSION

Third, reference is made to Range's Responses to Appellant's Second Set of Requests for Admissions wherein Range failed to provide an adequate answer to Request Nos. 4, 11, 18, 28, 34, 45, 48-50 and 52. Appellant presented such admission requests to Range in order to narrow the issues for trial and condense the case to be presented before the Board. However, Range fails to respond to the requests as presented by Appellant which fails to allow Appellant to proceed in this fashion. In particular, Appellant has noted the following issues with Range's responses:

Regarding Request Nos. 4, 11, 18, 28, 34 and 52, Appellant requests that Range make admissions regarding certain chemicals being a component of products used in the drilling process at the Yeager Site. In response, Range explains that it cannot admit or deny these requests because, although a chemical may be a component of certain products included in Range's PPC Plan, "most of these products were never even at the Yeager Site, much less used." As such, responses to these requests can be made in conjunction with a complete response to Interrogatory No. 7 which requires Range to specifically identify those products in fact used at the Yeager Site, as explained above. Once Range has identified those products used at the Yeager Site, it can either admit or deny whether certain chemicals identified by Appellant are components of such a product. A response in this fashion would appropriately satisfy the request as presented by Appellant.

- Regarding Request Ns. 45 and 48-50, Appellant requests that Range make certain admissions regarding chemicals that were reported as detected in background soil samples taken pursuant to the Yeager Pad Drill Pit Closure and Water Quality Monitoring Plan. In its responses to these requests, Range fails to answer the question presented by Appellant. For example, in Request No. 45, Appellant asks that Range admit that benzene was NOT detected in the background soil sample. Range admits that "the Pace Report" indicates that benzene was detected in the background soil sample. However, Appellant's request did not ask Range to admit that which was reported by Pace Analytical.

Writer's email: k1smith(4smithbutz1aw,com

09/17/2013


Rather, Appellant's request required Range to review the actual data accompanying the "Pace Report" to determine whether benzene was in fact present in the background soil sample, regardless of the narrative provided. The same is true for Request Nos. 48-50 which make mirroring inquiries regarding toluene and xylene.

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 requests. 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 it was seeking the proprietary information 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.

As a result of the foregoing, I am requesting that you please send revised answers that fully respond to Appellant's requests. Such a course of action will appropriate limit the issues for the Board's consideration at trial. Because these responses were already submitted pursuant to an extended deadline, I am requesting your response no later than March 4, 2013. In the event that you are unable to supplement your responses in the manner requested above, I will be forced to file a Motion to Compel. I look forward to hearing from you..

V truly yours,

Cc: Rick Watling, Esq.

Writcr' email: [email protected]

09/17/2013

EXHIBIT 7 09/17/2013

Transcript of the Testimony of March 12, 2013 meeting

Date: March 12, 2013 Volume:

Case: Loren Kiskadden v. Department of Environmental Protection

Eagle Feather Reporting Phone: 724-746-3383

Fax: 724-746-3383 Email:[email protected]

FXHIW

09/17/2013

147

1 that would be used in the drilling process.

2 MS. SMITH: That's why we asked in

3 the Interrogatories be specific about. Because

4 otherwise this is just around and around and

5 around. It doesn't solve the problem. Again,

6 our goal for this is to narrow the issues for

7 trial. To agree upon the products that were

8 there. And agree upon their content.

9 It seems like it would be a fairly simple

10 task. Which, obviously, it's not. But seems

11 like it would be a very simple task to get to

12 and get done because Range has knowledge of

13 what was used there. They have the MSDS for

14 the product. And the product will list what

15 the chemical is. And then if there's a

16 proprietary chemical, then that's also

17 addressed in our letter.

18 You weren't at the first meet and confer

19 with Mr. Kornoroski where he indicated that he

20 was going to do his best to get all of that

21 information to us. He then represented that in

22 a hearing before the Judge where the Judge

23 indicated you will get it to us. And if you

24 run into problems in trying to get that from

25 your you us-e-,---then Eagle Feather Reporting

[email protected] 724-746-3383

09/17/2013

148

1 you come back and you tell us.

2 The response that we got to that in

3 discovery was we're still trying.

4 MR. GIBBS: Yes. I can tell you

5

that.

6 MS. SMITH: I appreciate the trying.

7 But this is now four months old since the first

8 time we had the meet and confer and conference

9 with the Judge.

10 MR. GIBBS: In December?

11 MS. SMITH: Was it December?

12 MR. GIBBS: Three months. I mean, I

13 can you tell you that responses are trickling

14 in. And we will, in fact, produce all the

15 documents we get in response. Not all

16 responses are positive. But you know --

17 MS. SMITH: I think -- and maybe this

18 will help because if you're getting responses

19 from the third-party contractor saying we're

20 not giving it to you, then that needs to be

21 identified to us. Because then what the Court

22 indicated is he'll give us an order making them

23 give it to us. So for you as Range asking for

24 it, they won't provide it to you, the Court

25already said he will issue an order to get


09/17/2013

149

1 So if you can identify -- right now

2 identify the ones that say, nope, we're not

3 giving it to you, then I can take that to the

4 Court. And we can get that done that way.

5 That takes that off your plate to give to us.

6 If you're getting responses, you know, from

7 people, identify the people you're getting

8 responses to and we'll hold off on compelling

9 anything from them. But if you've gotten

10 people that say definitely not, identify those

11 people to us and we'll go to court with it.

12 Because the whole conversation with the Judge

13 was and Mr. Komoroski -- and I take him at his

14 word -- said we'll do our very best to get this

15 information. But understand because some of it

16 is proprietary they may not be willing to give

17 it to us.

MR. GIBBS: Right.

19 MS. SMITH: I understand that. The

20 Judge's response to it was we're going to get

21 it one way or the other. You make your best

22 effort to get it. If you get road blocked, you

23 come back to me and we'll go another avenue to

24 get it. So that's why I am requesting here

25 today with regard to proprietary stuff as you


09/17/2013

150

1 have represented you have got some positive

2 responses and some not so positive responses.

3 If you have gotten ones that say we're not

4 going to provide that to you or you have got to

5 jump through a million hoops to get it, please 6 identify those people for us in the letter on

7

Tuesday. And then we'll take it from there

8 with the Judge to say, Your Honor, these are

9 the ones that Range identified that will not

10 produce the documents. And then the Judge has

11 already said he will do what he needs to do to

12 make that happen.

13 MR. GIBBS: Okay. I mean, there are

14 some who have committed to, you know, research

15 the issue and get back to us. I certainly

16 don't want to push them with an order from the

17 Judge at this point.

18 MS. SMITH: And that's our problem.

19 At this point it needs to be pushed. Because

20 we have deadlines coming and going left and

21 right. And that was part of the reason for

22 getting the continuance yesterday was here are

23 the proprietary chemicals that we have no

24 knowledge of. Range has answered in Request

25 for Admissions they don't know. The DEP has


09/17/2013

151

1 answered in Request for Admissions they don't

2 know. So the only person that has that is this

3 third-party contractor who is not a party to

4 this case who has to be in some way made to

5 give this information because this information

6 is needed by our experts to complete their

7 reports.

8 And so there is -- time is of the essence

9 now in terms of getting that information. We

10 have waited and we have waited. So if they

11 have gotten back to you and said, yeah, we will

12 get back to you, there's got to be some

13 timeframe with that. It's not that they get

14 back to us in a year. I mean, this case won't

15 be around in a year. So if they're dragging

16 their feet on it -- it's been several weeks or

17 several months, you know, then that needs to be

18 indicated, too. So we can we make a decision

19 along with the Judge as to how we're going to

20 proceed.

21 Maybe that's a conference. Maybe that's a

22 conference call with the Judge to say, look,

23 Your Honor, these five companies have said

24 absolutely we're not giving it to you. These

25 companies say we're looking into. We'll get


09/17/2013

152

1 back to you. Have not yet. And then maybe the

2 Judge issues some sort of order that puts a

3 deadline on it. Something so that we are

4 advancing the ball forward. Because I ant sure

5 it doesn't look like from your perspective.

6 But from our perspective it looks like the ball

7 has been stagnant for three months. Because we

8 have had no response. We have had no

9 supplement. We have no information given to us

10 where this stands.

11 And the Judge has asked us to come back.

12 In fact, we have a motion pending. And he

13 said, you come back, that motion is renewed and

14 I will rule on it. So we're kind of in this

15 limbo area.

16 MR. GIBBS: Right. And I mean, I

17 think it's important to understand, too, that

18 those requests to the third parties did not go

19 immediately in December. I mean, first we had

20 to go through and identify each third party.

21 Locate them. Determine what was, in fact,

22 missing on their MSDS so that we could give an

23 appropriately precise description of what we're

24 seeking. And so you know a lot of those didn't

25 go out until February. So we still --I think


09/17/2013

153

1 that it's appropriate to leave additional time

2 for the third parties to --

3 MS. SMITH: I am not saying that I am

4 objectionable to that. That needs to be laid

5 out in a letter. Like, you know, these are the

6 companies we sent out to, you know, information

requests to these particular companies on these

dates. To date, we have received nos from

whomever. We have received we're looking into

10 it from whoever. We've received, you know,

11 definitely yes and have received documents in.

12 If you already have documents in under the

13 discovery rules, you have to supplement when

14 you get them. So we would request that you

15 provide them.

16 But in that letter give us an indication

17 so we can go back to the Court and say, look,

18 Your Honor, at this point you know we may need

19 your help because it doesn't appear as though

20 -- it appears that Range is doing what they

21 need to do but these other companies are a bit

22 of a stone wall for it. So we're asking for

23 your intervention with it. So that we can

24 provide an update because there is that motion

25pending out there that he is ready to rule on,


09/17/2013

154

1 you know, given whatever comes back from those

2 companies.

3 MR. GIBBS: All right. I can try to

4 sort of compile everything into, you know, a

5 single spread sheet or something like that and

6 let you know the status of --

7 MS. SMITH: That would be great. And

8 if you could incorporate that into the letter

9 that would be very helpful. So that we can

10 kind of make a decision as to what we need to

11 move on. What we can wait on. And that sort

12 of thing.

13 MR. GIBBS: Okay.

14 MS. SMITH: And then so going back to

15 our Request for Admission I think we covered

16 it. So our point with asking about the

17 chemicals is these are the products on site,

18 admit that within these product these are the

19 chemicals. And that's how those two are tied

20 together.

21 So when there's clarification from you guys

22 as to specifically what was used at the site in

23 terms of the product, then I think that the

24 Request for Admissions you guys need to go back

- 25 and be specific and answer, yes, this chemical


09/17/2013

EXHIBIT 8 09/17/2013

Kendra L Smith, Esq. March 25, 2013 Page 4

Product Manufacturer Response Notes Date

ASS-40

LTD 3/20113

LTD 3/20/13

LTD 3/20/13

Email response seeking additional background on the case, which was provided on 3,20. Awaiting follow-up response. Email response seeking additional background on the case, which was provided on 3/20. Awaking follow-up response. Email response seeking additional background on the case, which was provided on 3/20. Awaiting follow-up

requesting that we resend the MSDS. Awaiting additional

3/5/13

requesting that we resend the MSDS. Awaiting additional

Products Corporation manufactures Berkebile Starting

Berkeb0e 2+2 Staling

The Berkebile Oil

Fluid. A letter will be sent to Cornoanv. Inc.

counsel. Awaiting follow-up /1

96075747.1

09/17/2013

Kendra L. Smith, Esq. March 25, 2013 Page 5

Federal stated that It does not manufacture FED SEAL Federal directed us to Cedar Fiber Company. A letter has been sent to Cedar Fiber

Fed Seal Federal 3/11/13 Response by letter stating that Clearwater does not manufacture Flo Stop P but purchases it from another company, applies a label, and resells It The letter directed us to a company called Ineos. A letter will be sent to Ineos

Flo Stop P Clearwater International 3113/13 seeking the same information. Email response seeking additional background on the case, which was provided on 3/20. Awaiting fbHow-up

FIR Fluids Management; LTD 3/20/13 response.

Eureka Chemical Fluid Film Non-Aerosol Company

Email response seeking additional background on the case, which was provided on

FM Sperse AES Drilling Fluids, LLC 3/20/13 response.

Emall response seeking additional background on the case, which was provided on 3120. Awaiting follow-up

FM VIS LS AES Drilling Fluids, LL.0 3/20/13 response Email response seeking additional background on the case, which was provided on 3120. Awaiting fbIlow-up

FM WA II AES Drilling Fluids, LLC

3120113 response

FRW200 idustrfal Compounding.


GX M Fluids Management; LTD 3f20/13 reeponse Outside counsel sent a letter staffing that the information would not be provided because it is proprletanj and disclosure would

HI-Mar DEC. 503/Octafoam 270 HI-Mar SpecIalties 31

cause substantial harm to I-fl- 2/13 Mar's business.

r1v Indusiel Compounding,

96078747.1

09/17/2013

Kendra 1. Smith, Esq. March 25, 2013 Page 6

Hydrous Silicate of Alumina / Wyoming Sodium Bentonite I

Technical data sheet providing

Industrial Enamel,

Return to sender. Will attempt to find alternative address and/or source of information. Return to sender. Will attempt to find alternative address and/or source of information.

Delivery refused; return to sender. Will attempt to find alternative address and/or source of uformatlon.

Letter enclosing current Safety Data Sheet Phone call and email. Original Rapid Tap replaced by "New Rapid Tap." Provided MSDS for "New Rapid Tap" Letter stating that the requested Information will not be provided without a protective order. Follow-up phone call to discuss possibility of additional disclosure. Awaiting additional information. if any.

North America 3/7/13

Jvi ranItus.. - MC 8-8650 MC DF-7120 MC S-251 OT MC 55-5075

MOBIL RARUS 427 MOBIL RARUS SH( 1026

68

PS Penetrating Catalyst /

3

3/1 mall response seeidng

additional backgrod on the case, which was provided on 30. Awaiting follow-up

GASKET MARKER 50Z

STARTING FLID I The

96015747.1

09/17/2013

Kendra L Smith, Esq. March 25, 2013 Page 7

- Outside counsel sent letter stating that requested information would not be provided. Enclosed information in support of the products non toxicity and environmental soundness. Also provided 2010

Simple Green Sunshine Makers 3/12/13 and 2011 MSDS.

Sperlan Sterile Saline Spartan Eye & Face Solution Protection, Inc.

Return to sender. Will attempt to find alternative address and/or

SPIFaX(R) S 80W-140 Equllon Enterprises LLC 3/10/13 source of information. Stripe Fluorescent Phone call and email. Full Red/Orange Seymour of Sycamore 3/4/13 formula provided.


Fluids Management 3/20. Awaiting follow-up TRU VIS Division of AES LLC 3/20/13 response.

Unigal CMHPG Guar Product W.O. Defoam

Response by letter stating that the requested information would be provided if a protective order were In place. However, the

United States Gypsum information will not be provided W-0 Gypsum Cement Company 3113/13 without a protective order.

White Collar Bestolife Corporation Multiple phone calls and emalls. A ZEP employee explained that Cherry Bomb" Is a cleaning

product for use on the skin and non-hazardous. Provided "Product Specification Report"

ZEP Cherry Bomb ZEP Manufacturing 315/13 AwaitIng follow-up NOW as welt. Multiple phone calls and emalls. Provided "Product Specification Report" Awaiting follow-up letter

ZEP Groovy ZEP Manufacturing 3/5113 as well,

96018747.1

09/17/2013

EXHIBIT 9 09/17/2013

1

COMMONWEALTH OF PENNSYLVANIA ENVIRONMENTAL HEARING BOARD

MR. LOREN KISKADDEN

versus

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION and RANGE RESOURCES APPALACHIA, LLC, Permittee


*****

Verbatim transcript of hearing held at the Pittsburgh Office and Court Facility, Piatt Place,

301 Fifth Avenue, Suite 310, Pittsburgh, Pennsylvania,

Thursday, June 26, 2013

10:15 am.

BEFORE: THOMAS W. REN WAND, Administrative Law Judge

ADELMAN REPORTERS 302 Torrey Pine Drive

Mam '16046

9

09/17/2013

APPEARANCES: KENDRA L. SMITH, ESQUIRE JENNIFER L. FAHNESTOCK, ESQUIRE 125 Technology Drive, Suite 202 Bailey Center I Canonsburg, PA 15317

ALSO PRESENT; Maryanne Wesdock, Esquire Bruce E. Rende, Esquire Paul K. Vey, Esquire

For - Mr. Loren Kiskadden

RICHARD I. WAILING, ESQUIRE MICHAEL J. HEILMAN, ESQUIRE Department of Environmental Protection Southwest Regional Counsel 400 Waterfront Drive Pittsburgh, PA 15222

For - Commonwealth of Pennsylvania, Department of Environmental Protection

4~~

STEVEN E.H. GIBBS, ESQUIRE Southpointe Energy Complex 370 Soutpointe Boulevard Suite 300 Canonsburg, PA 15317

For - Range Resources Appalachia, LLC

09/17/2013

U 19 21

because of the proprietary nature or the MSDS where It

doesn ' t have the other 70 percent."

This all links back to why we need to know what

that proprietary information is; because seemingly, it

is stopping Range from even being able to answer

requests for admissions that would, on their face, seen

simple to answer if you would know that information

So, all of those go to specific chemicals and I

won't go through each one. But I've listed for you what

those requests for admissions are. But they do go to

specific chemicals within products, again, linking it

back to you need to know what those are. That is the

gamut of everything for Range the two Range motions

to compel.

JUDGE RENWPND: What is the law, you know, in

this area in terms of if somebody alleges, you know,

that their property is polluted by, you know, the

permittee and permittee says, 'Well, we don't know

what's in our the chemicals that we used." Did you

find any law on that?

MS. SMITH: In terms of whether

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

1 requesting is for them to tell me what chemicals are in

2

there. So, I don't think -

3

JUDGE RENWAND: But you want the chemicals

4

listed, you know, just chemicals, whatever chemicals are

5 there?

6 MS. SMITH: EXdCtly, Your Honor. And so

7 JUDGE RENWAND: And what I'm asking you, I assume

8 this has come up in other contexts where companies find

9 themselves in the same position that Range is in now.

10

And where does the you know, are there

11 inferences or presumptions that are made?

12

MS. SMITH: Right. So, the case law that I'm

13 familiar with, Your Honor, if the company for whatever

14 reason can't give up that proprietariness of their

15 product which the case law --

16 JUDGERENWAND: They are going to tell me, I'm

17 sure from what I've read, that we would love to give you

18 that. I think Attorney Komoroski said that in one of

19 the transcripts, but we don't have the information.

20

You know, these various companies have it and we

21 wrote to them and they told us we are looking at it or,

22 you know, we don't reveal this information. It is

23 company policy not to reveal it.

24

MS. SMITH: Right, right.

25

JUDGE RENWAND: You know, other legal speak which

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IN 25 1

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because we ask the people who we bought the products

from and they say, "We cant tell you. It is

proprietary."

MS. SMITH: Right. And I think where that comes

in, Your Honor, is kind of in a couple of different

areas of the law. Number one, with regard to the

proprietary information, that is where this kind of

dovetails with the proprietary information while the

manufacturer may be the holder of that trade secret;

certainty, that information can be divulged and

protected in some way. So, it is not as though you

can't s et to it and have it. And certainly if -

JUDGE REqWAND: You are not asking for the

formula either, are you? You are just asking for the components?

MS. SMITH; Yes. For purposes of this case, Your

Honor, that is what I reed to know to say, "This is whit

is in Mr:. Kiskadden's water. You used it up at, the

site, It was in the empiiernent. It was in the drill

cuttings pit. Thse things leaked. They are in Mr.

- d - i

So, hLs ra y stym.us this who PrccesC3to

gttirq 'o that rvJ pi rt. And t, t t 1i rqetirg

o t speak, Ca-Cola fcrmiU. rn

1 ends up in you don't know what it is, and they don't

2 know what it is

3

MS. SMITH: Right. So, I think where the

4 crossroads come down to if the company is not willing to

5 give that proprietary information, then it leaves us in

6 the position of asking the court for an adverse

7 inference, that if you are not going to tell us what is

8 there, then what we can identify as being there came

9 from you.

10

I mean t that is our alternative. i don't

11 necessarily think that is fait, to Range to do that, hut

12

if Range isn't willing to talk to the manufacturers to

13 get that information more so - I mean, Mr. Komoroski

14 characterized it as their good faith effort and they

15

have no obligation to do that. Well, if that is tru.y

16 how Range feels that they have no obligation to do i,

17

then in turn, Your Honor, t would ask for an adverse

18

inference

19

JUDGE RENWAND: That is hre 11 ask for Lh

20 law, because I haven't

w cn get that to y;u, ''our

23

TJYJE RNWAND mean, you don ' t 'e to qTt

24 to ne now 'cause th issue i in frr:oflt or ne,

23 but it; is going ti be That covers

09/17/2013

23 25

IM

1 everything with -

2 MS. SMITH: for Range.

3 JUDGE RENWAND: For Range, okay.

4 MS. SMITH: Thank you, Your Honor.

5 MR. GI8BS: Good morning, Your Honor.

6 JUDGE RENWAND: Good morning.

7 MR. GIBBS: Steve Gibbs of Fuibright and Jaworski

8 on behalf of Range.

9 As an initial matter, I think that we set forth

10 the law in our response to appellant's motion to compel

11 and it is fairly clear that according to Rule 4009.21,

12 the proper procedure for compelling production of

13 documents in the possession or the control of a third

14 party is through a subpoena to the third party; and as a

15 result, Range has made a good faith effort to obtain the

16 information from the third parties.

17 Counsel for appellant indicated that if Range

18 didn't wasn't willing to communicate with the third

19 parties, then an adverse inference was appropriate, I'm

20 not even sure that is true; but obviously, Range sent

21 letters to every single one of the third parties,

22 communicated with and followed up; and beyond that,

23 Range really does not have control over the

24 JUDGE RENWAND: But Range used all these

25 products.

I , all the chemicals that are hazardous are listed,

2 right?

3 MR. GIBBS: Correct, that is my understanding.

4 JUDGE RENWAND: So, what they are saying is what

5 is proprietary is water, things like that?

6 MR. GIBBS: There may be another point that

7 should be made here. On the MSDS themselves, some of

B the hazardous -- some of the compounds that may have a

9 hazardous component are also the same as proprietary

10 that doesn't occur in some instances.

11 JUDGE RENWAND: I guess as she is saying, she is

12 not asking for the formula. She is just asking for the

13 listing.

14 HR. GIBBS: Of every element or compound that --

15 JUDGE RENWAND: Right. These are chemicals that

16 are put into the ground, Into the environment.

17 MR. GIBBS: In some instances.

18 JUDGE RENWAND: Well, what instances aren't

19 there?

20 MR. GIBBS: Range sent letters to every third

21 party that both hadn't provided an WEDS where the

22 chemicals added up to 100 percent of the formula by

23 volume or weight and for which the chemicals or the --

24 I'm sorry, the products were actually on site at some

25 point,

24

1 MR. GIBBS: That is correct

2 JUDGE RENWAND: And you haven't told the

3 Department what is in those products; is that my

4 understanding?

5 MR. GIBBS: The MSDS sheets list -- my

6 understanding is that they list all the hazardous

7 chemicals. Now, beyond that, there may be non-hazardous

8 chemicals and certain companies list those as well,

9 certain companies don't.

10 JUDGE RENWAND: So, your position is that they

11 list all the hazardous chemicals? And she has the list

12 of the hazardous chemicals, that would be by this MSDS

13 definition of hazardous chemicals?

14 MR. GIBBS: That is correct, Regardless of that,

15 Range realty there is nothing more that Range can do

16 to--

17 JUDGE RENWAND: Really? Really? Range can't do

18 anything more, huh?

19 MR. GIBBS: Well, I mean, Range has sent

20 OOrte5pcndence to every one of those.

22 ;;R.ciIoEl : EcU 11.5 .sieoec cc. iouecotse

23 sac, "Thiele proprietary."

24 JUt/If RENWAND: And it's proprietary, because it

25 3a not the formula. Whet coo 'cc said is on lihe3e sheets

26

1 So, in other words, if Range already had 100

2 percent of the formula, no Correspondence was sent. And

3 for MSDS and, for example, the PlC plan for which the

4 products were never at the site, Range didn't send

5 correspondence for that. It was simply products that

6 were at the site for which part of the formula was

7 missing.

8 JUDGE RENWAND: Well, what you are saying is you

9 didn't send letters to somebody whose product you didn't

10 use at that site?

11 MR. GIBBS: Correct. And so, to your point, that

12 includes things such as paint and duct tape, things that

13 did not go into the ground.

14 JUDGE REN1,1AN;3: Right. I didn't think -- okay.

15 I didn't think that would be that encompassing.

16 MR. GIBBS: Well, my understanding was that you

17 were saying that everything -- these chemicals were our

18 into the ground, and that is not true at all in this

19 tnstance.

20 JUDC' Pc' : .952.0....

act a itmt of all the chemiC5s that mete

22 put sub coo r,osi.O

23 MR. G', BPS: No, we sent a itst of all the

24 products with their associated ESUS.

25 JUDGE P.EtISAND: You sent a iLtd, of sit the

09/17/2013

products; and I mean, we are sort of going around here

circularly. You are saying that the MSDS the MSDS

sheet has a list of all the products that could cause

anybody any harm?

MR. GIBBS: My understanding of what an MSDS

sheet contains is that it contains all of the hazardous

chemicals. Whether or not there is the potential for

harm from something else, I'm not prepared to make that

representation. I would imagine I could get harmed by

eating too many Twinkles.

JUDGE RENWAND: But you say those other, whatever

they are, ingredients, you are not going to -- you can't

get that information. The companies have revealed the

Benzene, the Toluene, the whatever, the stuff that could

hurt you but this other stuff is proprietary. That is

the argument?

MR. GIBBS: Not in all instances. I'm simply

saying that in some instances, that is the way it breaks

down. And, in fact, there are a number of companies

that sent either their entire formula or some sort of

additional information about chemicals or chemicals that

were not listed on the MSDS.

JUDGE RENWAND: Okay.

MR. GIBBS: In

JUDGE RENWAND: So, your response to the listing

1

JUDGE RENWAND: Yeah, I think if she tells you

2 that it is chemical A and you contact one of these

3 companies and they say, "We are all full of chemical A,"

4 do you think you get it from them?

5

MR. GIBBS: I mean, based on

6

JUDGE RENWPND: But you are saying the risk

7 should fall on Mr. Kiskadden?

8

MR, GIBBS: You mean, in terms of obtaining the

9 information or

10

JUDGE RENWAND: You say Range is an innocent

11 party here, that Range put products into the ground but

12 you can't tell her -- correct me if I am wrong. I mean,

13 her argument is you can't tell her what is in those

14 arguments and what you are saying is, "We've done our

15 best. We've contacted all of these people who aren't

16 parties to this action, and we've asked them for their

17 ingredients and they've told us no."

18

MR. GIBBS: That is correct but except for the

19 fact that they have the MSDS which, at least in theory,

20 represent all of the hazardous components in those

21 products.

22

JUDGE RENWAND: Yeah. I guess the question is if

23 all the hazardous components are in those products and

24 the non-hazardous components are like water and

25 whatever, I mean, why is that fight being made? I don't

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of all the chemicals is what?

MR. GIBBS: With respect to?

JUDGE REMWAND: To her motion to compel.

MR. GIBBS: As an initial matter, it simply isn't

within Range's control to provide this information.

There is no relief available, because Range can't be

compelled to provide information that it does not have.

Now, I mean, Range is willing to cooperate in any

way possible. No path forward has been suggested.

It might he helpful if appellant were able to put

together a list of things that he believes may be in his

water and Range could go back to the companies and say,

"Do you does your product contain any of these?"

We sent interrogatories asking for what appellant

alleges contaminated his water, and we were told that

required an expert opinion. And during our meet and

confer we were, in fact, told that, yea, appellant's

counsel would be able to answer a question like that but

because appellant himself could;;' t, we don't gel that

answer.

30

1 understand.

2

MR. GIBBS: I assume for the same reason that,

3 you know, Coca-Cola wouldn't give you their product

4 information because you could then replicate their

5 product. That is --

6

JUDGE REMWAND: Well, I think if you look at a

7

Coca-Cola can, it will tell you what the ingredients

8 are. I'm looking at a Gatorade can right now, and it's

9 telling me everything that is in here. Now, these are

10 different, literally comparing apples and oranges here.

11

But, as I understand it, that is all she is

12 asking for. And I guess to analogize it, one of the

13

things in here is citric acid, sucrose, salt. Water is

14 one of them. I guess the way you are telling me would

15

be like if Gatorade said, "Okay. We will tell you abujt 16 the sucrose, citric acid, at cetera, but we are not

17 saying anything about that water." Is that what you are

18

telling me?

19

MR. GIBBS: Perhaps, not exactly. Because when

Imean, on askod tot each cOsuonent 'icc rtnibut ion to

22 uaruasi px rl05 c aid i5kiri7 Locs fwn ii wit:: or upriaLir - i 22 Ih.i oh Ia Si a percuitagu.

23 t force:: ;ur: it would be s'slpfu l jr we could narrow Inc 23

So, I mean, i suppose it is cuss ible that cotta in

24 soup.n of than in some way. That doesn't zneari that Insy 24 compa flies ubj acted to I not . tii I whet: we soc,ke to then,

25 mc ecirP to he my sore :aii]irgto provide it but 25 1 a lot ow- up irid ii be:1 for, you mow, a s t 51 113 thaI hey

09/17/2013

EXHIBIT 10 09/17/2013

August 20, 2013

VIA FEDERAL EXPRESS

John M. Smith, Esq. Kendra L. Smith, Esq. Smith Butz, LLC 125 Technology Drive, Suite 202 Bailey Center I, Southpointe Canonsburg, PA 15317

Michael Heilman, Esq. Richard Watling, Esq. Department of Environmental Protection Southwest Regional Office 400 Waterfront Drive Pittsburgh, PA 15222

A NORTON ROSE FULBRIGHT Fuibright & Jaworski LLP Southpointe Energy Complex 370 Southpointe Boulevard, Suite 300 Canonsburg, Pennsylvania 15317 United States

Kenneth S. Komoroski Partner-in-Charge, Pittsburgh-Southpolnte Direct line +1 724 416 0420 kenneth.komoroskinortonrosefulbright.com

Tel +1 724 416 0400 Fax +1 724 416 0404 nortonrosefulbright.com

Re: Kiskadden V. Dep't of Envtl. Prot. , EHB Docket No. 2011-149-R

Dear Counsel:

As mandated by the Board's July 19, 2013, Order [Dkt. 196], please find enclosed Permittee Range Resources - Appalachia, LLC's ("Range") Amended Responses to selected portions of Appellant's First Set of Interrogatories and Second Set of Requests for Admission.

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 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.

Also enclosed is a disc containing a supplement to Permittee Range Resources Appalachia, LLC's ("Range") previous productions that occurred on or around October 29, 2012, November 21, 2012, January 15, 2013, and April 10, 2013. The documents in this production are bates numbered RRA-LK_001 1304 - RRA-LK_0014239. Range reserves the right to supplement this production on a rolling basis.

Documents bates numbered RRA-LK_001 1304 - RRA-LK_0013487 are the documents from the August 7, 2013, Haney Action production. Documents bates numbered RRA-LK_001 3488 to RRA-LK 0014239 are specifically responsive to certain of your requests in this action, but they have not yet been produced in the Haney Action. We will be supplementing this production with additional productions from the Haney Action in the coming weeks and months. Once those productions are complete, we will let you know, and Range will provide a signed verification.

Should you have an questions, please feel free to contact me at your convenience---

Fuibrlght & Jaworski LIP is a limited liability partnership registered under the laws of Texas. F)(HIBIT Fuibright & Jaworsic LIP, Norton Rose Fulbrlght LIP, Norton Rose Fulbitght Australia, Norton Rose Fulb1ght Canada tIP, South Africa (incorporated as Deneys Reltz. Inc.), each of which Is a separate legal entity, are members of Norton Rose F. Verein. Details of each entity, with certain regulatory Information, are at nortonrosefulbrlght.com . Norton Rose Fuibright Verei activities of the members but does not itself provide legal services to clients.

09/17/2013

John M. Smith Kendra L. Smith

Michael Heilman Richard Watling

August 20, 2013 Page 2

A, NORTON ROSE FULBRIGHT

Sincerely,

156

Kenneth S. Komoroski

KSK Enclosures

cc: Bruce Rende

..-.-.- -..- -

96201285.2

09/17/2013

Information Responsive to Paragraph 9 of July 19, 2013 EHB Order 09/17/2013

09/17/2013

MC FA-4012 Foaming Agent I S Corvr4lon Inhibitor Combination MC E4O12 Foaming Agent I S Carrkn Inhibitor CombInation MC -4O12 Foaming Agent I S Corrosion Inhibitor Combination

Multi-Chem

Multi-Chem

LIC

LLC

LLC

1.2 Ethanediol

Unidentified

Ether

201 10

09/17/2013

Information Responsive to Paragraph 9 of July 19 2013 EHB Order Product Information Based on Manufacturers ' Responses to Range's Requests for Additional Product Information

Silicate of Alumina / Wyoming Bentonita/Sodium Montrmorlllonite Black Hills Bentonite

Silicate of Alumina / Wyoming Bentonite/Sodium Montrmoilllonite Black Hills Bentonite

P)rupI.x Blue 2

BP Lubricants USA 1

no chemicals or

Calcium Carbonate 5-10% N 250- Severely

Sciv1 Reined Heavy Pamifinic Palrvisum ON

Baseail- hiityreflned (100%) Hygold L2000 - Hydrotreated Heavy Naphthenlc Distillate

Base oil - hy refined 1 (100%)

Sodium hydroxide 1.3% 2-Acrylamido-2-methyl- 1 -propanesulfonic acid 70.73%

Glacial acrylic acid 22.25%

Ammonium persulfate 2.90%

2-Mercaptoethanol 2.78% Silicone Polymer Emulsion 0.04%

M'ulac*Jrer response at RRA-LX 011184

Manidacturer response at RRA-LK 011184

Manufacturer response and typical chemical analysis at RRA-t.K 01 1219

Manufacturer response and typical chemical analysis at RRA-LK 011219 Manufacbser response at RRA-U( 010830

response at

Manufacturer response at RRA-LK 010830 Manufacturer response at RRA-LK 011243 Manufacturer response at RRA-LK 011243 Manufacturer response at RRA-LK 011243 Manufacturer response at RRA-LK 011243 Manufacturer response at LRRALK 011243

Range Resources Docket 2011-149-R

Documents

Transcript of Range Resources Docket 2011-149-R