Comments on Initial Pre-draft rulemaking proposal to implement HB 1298 and HB 1341

Before I submit my comments, I’d like to thank the COGCC for the manner in which they’ve opened this rulemaking session to the public – particularly, the ease with which the public can make a comment, find information and track progression of rulemaking on-line. Further, the planned stakeholder sessions and timely, yet accessibly phased approach is very much appreciated. This is a landmark opportunity and I very much appreciate the thoughtful contributions of important oversight agencies and all stakeholders that this process has yielded.

Though we have absorbed many (though by no means all) of the negative impacts from this industry, we have also benefited from altogether rare instances when genuine efforts have been implemented by industry to mitigate such impacts. All in all, we’ve seen some (and often hard-won) effort on the part of industry, and we’ve experienced the onslaught of industry turning its back on responsible action simply because it can. Policy is necessary to ensure a standard of conduct which benefits all rural residents (not just land and mineral interest holders) as well as the environment.  Health, safety and the environment should not be the subject of wonton industry courtesy nor contract negations fodder.

Of course industry is going to resist new and more regulations. But these are necessary to protect the welfare of people and the environment. Unfortunately, Industry has overwhelmingly declined to self-improve to the extent necessary. We believe that sound and balanced policy levels the playing field among operators and protects the interests of those living with development. We also believe that the current effort at rule-making has the potential to place the natural gas development industry in a much better public light and confine them to the much more coveted role of economic benefactor rather than environmental destroyer.

We believe that natural gas can be a keystone product in the domestic energy mix, but we also believe that development should be reasonable and responsible, and that under certain conditions, development is neither reasonable nor appropriate – and usually, that is because it cannot be conducted without the destruction of other sustainable  environmental infrastructure or public health. We live here, and we share this land with others who live and depend upon it also. We simply don’t want to be squished in the pursuit of industry profit.

Below is a list of those things we felt compelled to address.

Regarding “Notice and Comment”

As you know, impacts to residents from natural gas operations are not limited to artificially constructed boundaries of land and mineral ownership. They are collective and cumulative among residential populations who share, like wildlife, a network of resources and improvements such as air and water sheds and roadways. Therefore we feel that residents living within a mile of proposed development share a vested interest in the quality and potential impacts of such production.

Regional development plans with foreseeable projections tied to Environmental Impact Statements and CDP's should extend to communities, involving residents in the process and providing them an opportunity to voice concerns and propose solutions.

For instance, in our case, a pad constructed two miles away on one landowner's property, yet adjacent to my deeded right-of-way could adversely impact my ability to access my home. Another example from our situation: air pollutants from condensate storage facilities nearby but outside the scope of notice and drifting in the direction of prevailing wind currents are of shared concern. Traffic, noise, light, dust, pollutant migration - all these issues are commonly shared by communities of residents living within a rural residential area. Therefore, these circumstances should be considered when deciding how far notice should extent. Density complicates this issue: the greater the proliferation of pad/well development (more likely in rural residential areas), the greater the likelihood of shared impacts over a greater distance. We feel that notifying residents within 1 (one) mile of proposed development is reasonable in rural residential situations, given the density and type of development allowed. This would also encourage industry involvement in community planning as a way of mitigating redundancy and expenses associated with it.

Regarding “Vegetative and Wildlife survey”

The state's proposed "Vegetative and Wildlife" survey within approx ½ mile of operations should account for migratory corridors and seasonal species occupation of the vicinity.

Measures should be instituted to protect wildlife, including migrating populations, and the integrity of their contiguous habitat - much of which is now located within Colorado on rural private lands. Co-location of pads and roads while reducing traffic flow through the use of 3-phase collection could contribute greatly to this cause.

Regarding “Reclamation”

Reclamation should be required across the board - regardless of whether a landowner does or doesn't want it. If a landowner allows drilling by agreement, then reclamation should follow as a bound activity. The reason for this is that there are too many reasons for some landowners to use optional reclamation as a tool of contract negotiation with operators to encourage more, denser and irresponsible development. These landowners could be those with large holdings (the land along interstate west of Rifle); those with any range of mineral interests; absentee owners; or, any combination thereof.

Air, water and soil pollution tends to migrate to areas beyond the recognized boundaries of surface or mineral ownership - and often continues in its migration. Further, CERCLA provides that pollution found on a person's property is the responsibility of the property owner - not necessarily the one who caused it. This particular aspect of the law makes transference of polluted property easier for offending polluters to pass properties off to unsuspecting buyers who in turn may abandon it due to clean-up costs. A savvy landowner with intentions of developing the land without requiring reclamation may find sufficient financial incentive to abandon it themselves once a majority of profit has been realized.

Either way, this practice invites land and mineral owners into the greater role of industrial partner for which they may possess neither technical acumen nor financial resource. This encourages irresponsible development and passes toxic lands and/or large financial burdens onto the state and taxpayers. Absolutely, reclamation should be bundled with exploration and development activities. Reclamation to the Gold Book standard should be required; however, a landowner who wishes to negotiate for reclamation above those standards should be permitted to do so. If landowners are educated as to potential environmental threats posed by a certain substance allowed by the state, that landowner should have the right to refuse the use of such substances on their land.

Incidentally, regarding the use of chemicals in operations, we feel the state should be assertive in protecting the public from the proliferation and migration of suspect and known hazardous substances - requiring the highest degree of disposal when such substances are allowed at all. Preference should certainly be given to safe substances, requiring their use whenever possible.

A failure to comply with reclamation should result in a cessation of permitting for the particular offending operator.

Actively preventing reclamation or simply allowing it contributes to the potential for widespread devastation of the landscape.

Regarding “Financial Assurance / Engineered Reclamation Estimate”

These concepts are important and should be required.

Regarding "Unsuccessful Reclamation"

"Full value of the land" – is a sometimes under estimated value (such as has been seen in some cases of iminent domain) and does not account for landowner relocation expenses (moving, repurchase of comparable land, etc). Also, if a landowner accepts to reclaim land themselves, possible landowner relocation should be taken into account during the period of reclamation; further, clean-up costs including any extended scope of clean-up could, once again, be underestimated and should therefore be provided for as a possible eventuality early on.

Regarding  “Consultation and Onsite Inspection”

Due to the limited manpower of the COGCC, yet, taking into account the opportunity for industry to fail to report an occurrence of pollution on a landowner’s property, a landowner should possess the right to inspect said suspect operations. However, a balance should be struck between discovery and safety. 

Regarding “Permit Duration”

We feel that one year is sufficient for permit duration.  Such a timeframe will encourage sound strategic planning, cooperation and communication among industry and other stakeholders.

Regarding “500 series: Rules of Practice and Procedure”

We agree that the COGCC should delay new APDs until an operator with repeated violations comes into compliance with COGCC regulations. There must be some compliance incentive beyond a mere relative financial token. After all, the pursuit of resource which flies in the face of regulation allows for financial enhancement to such a degree that disproportionately low fines serve no real purpose. Further, such behavior simply encourages other operators to act similarly in order to retain/regain a competitive edge. The question, however, is: how many violations will be allowed before penalty is levied? Depending upon the severity of the violation – perhaps the 1-3 strike rule is a fair guideline. Beyond that, the operator should not be allowed to operate within Colorado, unless corrective measures and adequate fines and damages are assessed.  An excellent example of a failure to adequately fine is in the Divide Creek Seep. Seeps were noted not only in one area but in another as well, each time the same violation was noted and the same fines levied – all in all, however, the fines did little to encourage better operations. A moratorium and resultant drilling requirements did more to facilitate positive change than fining the offender.

Regarding “Watershed Issues”

Because of a failure of CRS 31-15-707S to provide counties with the authority to manage their watersheds, a legal mechanism by way of rulemaking should be put in place to allow counties to plan for the protection of their watersheds.

Regarding “Condensate Tanks” (fuel storage facilities)

Ultimately, there must be a better balance between the allowed density of natural gas development and rural residential population.

We live at the end of a 2.5 mile lane which represents one way in and one way out. That is, escape from a fire in the area is dependent on the use of that road. Lightening is a very real perennial summer-time threat. The proliferation of wells in the area (one pad is adjacent to the road and others are proposed similarly) and their attendant unmanned condensate tanks pose a grave fire threat to human health and safety. Exploding tanks engulfed by flame can deliver the rapid spread of additional fuel, shrapnel, chemical burns, disfiguration, blindness and death to people attempting escape through what amounts to a minefield of imposed industrial hazards -- so horrible a proposition that one is inclined to not only hope but believe this scenario of possibility is overstated. We wish it were so.

In fact, industry is concerned enough for the phenomenon of lightening strike as to provide arresters around condensate tanks which store upwards of 2000 gallons of highly volatile liquid compounds apiece. Better producing wells generate much more condensate. In our area, that means a lot. But our concern is less for the possibility of a direct lightening hit, and more for the threat of spreading wildfire from lightening-ignited surrounding forest/grassland. As I said, lightening is a perennial threat to this area in particular - a call to the Burning Mountain Fire Department will confirm that. Perhaps there is a higher concentration of iron in the soils… but, whatever the case, we deal with it every year, and commonly dry summers pose an even greater threat for lightening-caused fires.

Given this set of circumstances how can we hope that emergency resources will be available to help ensure our safety? We cannot be sure. I can't personally imagine any fire Chief ordering a ground crew, even low flying air support, into such a situation. That is grim and gives us not only little hope, but a tremendous amount more stress than we normally cope with during dry summer lightening season under normal conditions. Please remember, we have only one way out.  It seems improbable that under such conditions, and under current allowed storage of these fuels, rural residents and dense natural gas well development can safely so-exist -- particularly given the density allowed within a Federal Unit, yet poorly mitigated by the COGCC.

One solution to this problem is 3-phase collection whereby condensate - a commercially sold buy-product of natural gas production and component of jet fuel - is carried off-site to a collection/processing facility. This would also greatly limit VOC emissions – a current and very real bane to residential health and safety (though also a leveraged benefit which industry enjoys through a lack of established EPA standards). Industry claims that land-owner relations curtail the development of such pipelines, making such collection difficult. Another possibility, then, could be the underground storage of such tanks (with suitable containment measures in the event of rupture).

How can we choose between natural gas development, with thousands of gallons of fuel storage near residences in high-fire danger areas, and public safety? Whatever the technical difficulty in mitigating the threat of inappropriate fuel storage near residents - I don't believe it is the public who should be sacrificed, particularly when industry and the COGCC are in a cooperative position to prevent such unnecessary risk to human populations as well as the environment.

Regarding “Best Practices and the matter of technical feasibility and cost-effectiveness” (The quoted matter below is from COGCC literature)

The law empowers the COGCC "to regulate oil and gas operations so as to prevent and mitigate significant adverse environmental impacts... resulting from oil and gas operations to the extent necessary to protect public health, safety and welfare, taking into consideration cost-effectiveness and technical feasibility." Because of the statutory requirement that the COGCC take into consideration cost-effectiveness and technical feasibility the COGCC has to consider the costs of any condition imposed for environmental purposes. In some rare instances the COGCC has required directional drilling or pitless drilling systems. Generally, the COGCC does not impose these requirements because there has been no showing that the requested method is cost-effective, technically feasible, and necessary to protect the public health, safety and welfare. A surface owner may file an application for Commission hearing to make a showing that directional drilling or pitless drilling systems are necessary to protect the public health, safety and welfare taking into consideration cost-effectiveness and technical feasibility."

Why should the burden of protecting one's safety fall to the individual to prove technical feasibility and cost-effectiveness, when corporations employ huge divisions of employees and bastions of attorneys to determine such things?  The time-frame within which notice to drill is received, and such an application must be discovered as a remedy, let alone filed and physically heard, coupled with the inability of the average citizen to attend distant hearings; obtain information which may be considered at least partially proprietary; interpret this information; possess the capacity to even investigate the discovery process on their own, or be able to afford an attorney or attorneys for the purpose of such research illustrates how this industry and its supposedly governing regulatory agencies inadvertently operate to remove the average citizen as far as possible (or legally permissible) from the ability to become effectively involved in a process that clearly, in every way, affects their well being.

We ask the COGCC to invest in the resources to address best practices and require their use. We believe the COGCC should require available "Best Practices" as the standard of practice required for all operations. I have heard people say, 'We need good controls on pollution here in our neighborhood.' while the same people couldn't care less about development on the Roan. Standards to protect health, safety and the environment should extend to both people and wild fauna and flora. If financial or "fast-track" incentives help to encourage best practices, then they should be instituted in the rule making as well.

The list below is one I compiled back in 2003. Things may have improved since then and there may be better practices not even mentioned here, but at these at least should be considered in drafting a Best Practices Standard.

1)  Submerged or recessed drilling operations. This technique amounts to placing well pad sites and associated operations into an excavated area beneath the ground surface. Initially conceived over thirty years ago, theses types of techniques can be found in use in areas of California and even Northwestern Colorado. The cost of implementing the added measure of excavation can run around $250,000 (Two-hundred and fifty thousand dollars). The benefits of reduced visual, noise and vibratory or tactile impact are vast. The premier advantage of containment in the event of an industrial catastrophe is priceless. Compared to the expected yields of product over the life of a well - the costs are negligible.

2)  Noise is an immense environmental impact, easily overlooked except by those in proximity. The effects of prolonged noise pollution upon human beings, pets and wildlife are still under study. It is important to note residential reports of vibrating walls and rattling windows during drilling and even sustained pump and compression activities. An aid to the mitigation of noise pollution involves the use of containment mufflers (as used on jet engines) and berms.

3)  Open venting systems, on natural gas wells, contribute to the death of protected migratory birds and ecologically critical bats (both declining without adequate known cause). This can be partly mitigated by simply screening the open cavities (which may only intermittently be flared) preventing the nesting, or 'huddling' during cold weather, of these birds in the seemingly opportune cavities.

4)  Surface occupancy of a well pad site can be mitigated by implementing the often heralded method of "directional drilling". While it is true that directional drilling reduces surface occupancy, all other associated impacts remain the same and multiply with each new well introduced from the same pad. Co-locating roads and pads is one solution to the “footprint” problem, however, it may enhance the opportunity for greater VOCs emissions.

5)  Technology is available to dramatically curtail the occurrence of flaring practices.

6)  'Pitless' technology is available to reduce or eliminate the need for drilling wastes. In the event a "pit" is used to contain wastes, a land owner would be prudent to request that the materials, along with the pit liner be removed from the site upon completion of actual drilling activities. Additionally, secondary containment measures should be implemented whenever pits are used. Chemical substances (like those in use in Garfield County but which have been banned in other countries and by the U.N.) used in pit reclamation but with the capacity to leach into ground water should be avoided.

 7)  As a means of curtailing the deadly threat in tapping an H2S ( of hydrogen sulfide ) pocket, a vessel (similar in concept as an in-line fuel filter) can be installed. The vessel amounts to a large tube packed with fine iron wire (like a gigantic, dense, metal kitchen scrubbie pad). Apparently, the gas makes contact with the iron, creating a chemical reaction which converts hydrogen sulfide to common iron pyrite. This is a pretty clever and inexpensive means of control, but may depend upon diligent maintenance of the device.

8) Pipelines, which are often absent from operations - leading to the use of fuel storage tanks - can be utilized to eliminate a need for combustible, condensate tank storage, and road transportation of such fluids. This is a tremendous advantage since condensate tanks emit VOCs or Volatile Organic Compounds - many of which are extremely toxic, but for which there are no EPA ambient threshold standards. Combustors are used to curtail emissions. It is our opinion that on-going, even low-level emissions, of benzene and other harmful air-born constituents is inappropriate in a residential area.

9) Pipelines should also be used to transport produced water to a treatment facility for reclamation and reuse. This reduces truck traffic and enhances public safety on roadways while recycling a critical Colorado natural resource.

Regarding Emissions and Air Pollution

We ask that measures be instituted to either eliminate VOC and ozone air pollution caused by natural gas drilling/recovery operations near residences or eliminate dense natural gas development. This can be aided in large part by 3-phase collection. We believe strongly that the proliferation of both VOCs and dense well development cannot safely co-exist with people in “near” proximity. Near, of course, is a relative term and includes those living right next to development and those living within a developed area. Currently, we are seeing dense regional development, the resulting air pollution of which is affecting entire sub-populations.

Regarding other draft proposals

In addition to our suggestions, we support the position of Western Colorado Congress and, for the purposes of this letter, defer any further commentary to the collective efforts of that organization.

Thank you for inviting our perspective through these comments, and for taking the time to review and consider them. We hope these suggestions have been helpful.

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