PITTSBURGH – One defendant is seeking judgment on the pleadings in litigation brought by a Western Pennsylvania man who allegedly suffered a number of health complications and diminished value of his property, after nearby fracking operations were conducted.
Robert Teorsky of New Kensington first filed suit in the Allegheny County Court of Common Pleas on April 13, 2022 versus Penneco Environmental Solutions, LLC, Dakota Oil & Gas Company and Sedat, Inc. of Delmont, EQT Production Company of Canonsburg and Petroleum Service Partners, Inc. of Indiana, Pa.
“At all times mentioned herein, defendants were involved in hydraulic fracturing and/or the disposal of the wastewater caused by hydraulic fracturing. Hydraulic fracturing requires the discharge of enormous volumes of hydraulic fracturing fluids otherwise known as ‘fracking fluid’ or ‘drilling mud’ into the ground under extreme pressure in order to dislodge and discharge the gas contained under the ground; the wastewater produced from the drilling activity is then injected back into the earth,” the suit said.
“The composition of ‘fracking fluid’ and/or drilling mud includes hazardous chemicals that are carcinogenic and toxic. Diesel fuel and lubricating materials, also consisting of hazardous chemicals, are utilized during drilling and well operations. In addition, gas, oil and brine present in formations within the Earth, themselves contaminants, are dislodged and migrate during drilling and well operations. At all times mentioned herein, defendants engaged in oil and gas wastewater injection activities in Allegheny County, Pennsylvania.”
The suit added that the defendants’ operations were in such close proximity to the plaintiff’s property, 1,500 feet from his property line to be exact, that the Pennsylvania Department of Environmental Protection was compelled on Dec. 8, 2021 to notify each company of the elevated levels of methane gas found in the plaintiff’s water well headspace, and required each to perform an investigation of same.
“At all times mentioned herein, plaintiff relies on ground water well for drinking, bathing, cooking, washing and other daily residential uses. At all times mentioned herein, and upon information and belief, defendants Penneco Environmental Solutions and Sedat, Inc. were otherwise negligent and/or grossly negligent in the construction and operation of the Sedat 3A Injection Well such that pollutants and industrial and/or residual waste, including elevated levels of Total Coliform, Iron, Manganese, Sodium, E. Coli, Methane, and Hexachlorocyclopentadiene, were caused to be discharged into the ground or into the waters near the plaintiff’s home and water well,” the suit stated.
“Upon information and belief, at all times mentioned herein the release and discharges of contaminants was the result of improper or insufficient conversion of the Sedat 3A Well located near plaintiff’s home, and the discharges and spills of industrial and/or residual waste, diesel fuel and other pollutants and hazardous substances were the result of defendant’s negligence, including the negligent planning, training and supervision of staff, employees and/or agents.”
According to the suit, “pollutants and industrial and/or residual waste, including elevated levels of Total Coliform, Iron, Manganese, Sodium, E. Coli, Methane, and Hexachlorocyclopentadiene, were caused to be discharged into the ground or into the waters near plaintiff’s home and water well.”
The suit added that the defendants violated the Pennsylvania Solid Waste Management Act, the Pennsylvania Oil and Gas Act, the Pennsylvania Hazardous Sites Cleanup Act, the Federal Solid Waste Disposal Act, the Federal Comprehensive Environmental Response, Compensation and Liability Act and the Federal Water Pollution Control Act.
“Plaintiff’s water supply is contaminated with elevated levels of Total Coliform, Iron, Manganese, Sodium, E. Coli, Methane and Hexachlorocyclopentadiene. Plaintiff has been and continues to be exposed to combustible gases, hazardous chemicals, threats of explosions and fire. Plaintiff’s property has been harmed and diminished in value,” the suit said.
“Plaintiff has lost the use and enjoyment of his property and the quality of life he otherwise would have enjoyed. Plaintiff has been caused to become physically ill manifesting in burning skin, shortness of breath, burning eyes, headaches, nausea, sore throat, decreased appetite, loss of smell and loss of taste. Plaintiff has been forced to stay away from his property in order to avoid the toxic fumes.”
EQT Production Company filed preliminary objections in the case on July 11, 2022.
“Preliminary objections to all counts of the complaint pursuant to Pennsylvania Rule of Civil Procedure 1028 (a)(4) (demurrer) for failure to plead legally sufficient claims because the complaint is wholly lacking in factual averments to satisfy the essential elements of any of the asserted causes of action, chiefly by failing to allege any non-conclusory averments of fact regarding any misconduct by EQT or casual connection between EQT’s non-specific conduct and Mr. Teorsky’s non-specific alleged damages,” the defendant’s preliminary objections read, in part.
“Preliminary objections to all counts of the complaint pursuant to Pennsylvania Rule of Civil Procedure 1028 (a)(3) for insufficient specificity in pleading because the complaint fails to plead factual averments sufficient to apprise EQT of the claims being asserted against EQT or EQT’s alleged involvement in the alleged misconduct, including by failing to allege facts regarding the time, place nature or harm caused by EQT’s non-specific alleged misconduct.”
EQT further cited Pennsylvania Rule of Civil Procedure 1028 (a)(4) (demurrer) for failure to plead a legally sufficient claim, because in its view, Pennsylvania law does not recognize stand-alone causes of action for gross negligence and strict liability, and because the complaint contains no averments of fact that EQT had any level of malice, ill motive, bad intent or conscious regard for Mr. Teorsky’s well-being to support an award of punitive damages.
Co-defendant Penneco Environmental Solutions, LLC filed substantially similar objections on July 12, 2022.
On Sept. 9, 2022, Petroleum Service Partners, Inc. filed an answer to the complaint, along with new matter and a cross-claim against all of its co-defendants.
“Defendant operates the George E. Milkos 3 Well, API No. 37-003-20903, located near the plaintiff’s residence at 2041 Old Leechburg Road, New Kensington, PA. Defendant’s George E. Milkos 2 is one of several wells, including the Sedat 3A, located in the general vicinity of plaintiff’s residence. Defendant’s George E. Milkos 3 is not an injection well. Defendant has no ownership or control over the Sedat 3A Well. The George E. Milkos 3 Well has cemented surface casing and cemented intermediate casing installed in the walls of the well, providing a double barrier against possible leaks from the wellbores into any freshwater formation. Upon information and belief, no gas or other hazardous substance has escaped from the George E. Milkos 3 Well, nor is there any evidence that any substance from that well has affected or damaged plaintiff’s property,” the new matter stated.
“Defendant received a letter from the Pennsylvania Department of Environmental Protection, dated Nov. 1, 2021, notifying defendant of a potential gas migration incident within 2,500 feet of the George E. Milkos 3 Well. In response to the DEP’s letter, on Nov. 4, 2021, defendant hired G&G Gas, Inc. to assist in determining if the George E. Milkos 3 Well was migrating. G&G Gas, Inc. investigated the well by running cameras down both the well and the ‘rat hole’ located next to the well. G&G Gas, Inc.’s investigation determined that there was no bubbling in the water and that no migration had occurred. Any contamination of plaintiff’s fresh water supply came from a source other than defendant’s George E. Milkos 3 Well. Upon information and belief, some or all of plaintiff’s claims may be barred by the applicable statute of limitations and may have failed to take appropriate and reasonable precautions to protect his property.”
In a Nov. 18, 2022 joint motion to discontinue, counsel for all parties petitioned to discontinue claims against defendants EQT Production Company and Petroleum Service Partners, Inc. and to dismiss Petroleum Service Partners, Inc.’s cross-claims against EQT, Penneco Environmental Solutions, Inc., Dakota Oil & Gas and Sedat, Inc.
“Plaintiff’s claims or rights are not generally extinguished by a discontinuance of this action against EQT Production Company and Petroleum Service Partners, Inc., as informal discovery has revealed [they] are not appropriate defendants in this action. Plaintiff submits that there is good cause to grant this motion, because plaintiff will not be prejudiced in any way,” the motion stated.
“Defendant Petroleum Service Partners, Inc.’s cross-claims filed against EQT Production Company, Penneco Environmental Solutions, Inc., Dakota Oil & Gas and Sedat, Inc. shall be dismissed. Any and all cross-claims filed against EQT Production Company and Petroleum Service Partners, Inc. shall be dismissed. Additionally, the caption shall be amended to reflect the discontinuance as to EQT Production Company and Petroleum Service Partners, Inc. Counsel for defendants do not oppose this motion or relief sought.”
Allegheny County Court of Common Pleas Judge John T. McVay Jr. approved the motion the same day, Nov. 18.
UPDATE
After a second amended complaint was filed on Jan. 25 and an answer and new matter was filed by Penneco Environmental Solutions, Inc. on Feb. 14 (providing arguments that the Pennsylvania Department of Environmental Protection determined that Teorsky’s water supply “was not adversely affected”), that same company filed a motion for judgment on the pleadings on March 29.
“Defendants also averred in their new matter that Teorsky failed to take an appeal to the Pennsylvania Environmental Hearing Board from DEP’s determination, which was set forth in a letter dated Sept. 22, 2022 that also advised Teorsky of his 30-day window in which to appeal. Defendants endorsed their answer and new matter with a notice to plead,” the motion stated.
“Teorsky did not submit a responsive pleading to defendants’ answer and new matter by his March 6, 2023 deadline for doing so under Rule 1026(a) of the Pennsylvania Rules of Civil Procedure. Though defendants notified Teorsky by letter dated March 8, 2023, of his missed deadline and provided an opportunity to cure, Teorsky still has not submitted a responsive pleading to defendants’ answer and new matter as of the date of this filing. The pleadings in this action thus are closed and, under Rule 1029(b) of the Pennsylvania Rules of Civil Procedure, Teorsky has admitted the factual averments set forth in defendants’ answer and new matter.”
According to Penneco Environmental Solutions, Inc., it is entitled to judgment on the pleadings in their favor and against Teorsky, plus such other relief as the Court deems just and proper.
For counts of violating the Hazardous Sites Cleanup Act, negligence, gross negligence, private nuisance, strict liability, trespass and medical monitoring trust funds, the plaintiff is seeking the following reliefs:
• The reasonable and necessary costs of remediation of the hazardous substances and contaminants;
• A preliminary and permanent injunction banning defendant from engaging in the acts complained of and requiring defendant to abate the aforesaid nuisances, wrongful acts, violations and damages created by them within the injection well areas;
• The cost of future health monitoring;
• Compensatory damages for physical injuries including exposure to noxious chemicals, burning, irritation, loss of taste and smell;
• Compensatory damages for increased risk of future harm;
• Compensatory damages for the loss of property value, damage to the natural resources of the environment in and around the plaintiffs’ properties, medical costs, loss of use and enjoyment of their property, loss of quality of life, emotional distress, personal injury and such other reasonable damages incidental to the claims;
• Punitive damages for defendants’ for fraudulent misrepresentation and gross negligence;
• Plaintiffs’ litigation costs and fees pursuant to 35 P.S. Sections 1104 and 1115; and
• Any further relief that the Court may find appropriate, plus a trial by jury.
The plaintiff is represented by Joshua P. Ward of J.P. Ward & Associates, in Pittsburgh.
The defendants are represented by Jean M. Mosites and Joseph V. Schaeffer of Babst Calland, all in Pittsburgh.
Allegheny County Court of Common Pleas case GD-22-004214
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com