Pennsylvania’s Environmental Hearing Board (EHB) has ruled that an oil and gas operator could proceed to fill and seed a drill pit despite a litigation hold issued in connection with property damage claims related to operations at the pit site. Kiskadden v. Pa. Dep’t of Envtl. Prot., No. 2011-149 (Pa. EHB 11/6/12). Claimant Loren Kiskadden alleged that operations associated with the drill pit had contaminated his water well. When first faced with the claim, state regulators had determined that the drilling operation did not affect the site. In a prehearing conference on the decision’s appeal, EHB entered a litigation hold on evidence in the case. Kiskadden argued that filling and seeding the drill pit would violate the litigation hold. EHB ruled that its litigation hold addressed “electronically stored information held by specific individuals in this case,” not other evidence, and allowed the filling and seeding to proceed.

EHB concluded “that there were some misunderstandings or misconceptions regarding the site view” that board members had conducted. It noted that Kiskadden had an opportunity to visit the site and develop tangible evidence, such as photographs, to be offered as evidence at the hearing on his claim before any restoration occurred and did not find that the misunderstandings would support a ruling in Kiskadden’s favor on site restoration during the litigation hold.