As an environmental attorney with Illinois EPA for 11 years
and as an environmental attorney with a Fortune 100 oil and gas company for 8
years, I reviewed some of the Colorado Oil and Gas Conservation Commission new
rules (2 CCR 404-1) as to how well the rules protect the environment as well as
reasonable impact on the oil and gas producers. In two areas, the COGCC failed
to improve the prior rules to help the environment and in another area made a
revision that needlessly increases costs of remediation.
The Colorado Oil and Gas Conservation Commission adopted new rules December 17,
2008 intended to address concerns created by the increase in permitting and
production of oil and gas in Colorado in the past few years. However, the new
rules carry over from the prior rules several provisions and delete other text
with anti-environmental effects and contrary to the stated purposes of the new
rules.
The rules' Statement of Basis, Specific Statutory Authority, and Purpose, states
in relevant part:
These rules are promulgated to protect public health, safety, and welfare,
including the environment and wildlife resources, from the impacts resulting
from the dramatic increase in oil and gas development in Colorado. .... They are
intended to foster the responsible and balanced development of oil and gas
resources. (page 1)
In order to minimize adverse impacts to wildlife resources and ensure proper
reclamation of wildlife habitat, the COGCC staff developed the rules in
consultation with the Colorado Division of Wildlife (“CDOW”). .... As directed
by the legislature, the rules:
(1) develop a timely and efficient consultation process with the CDOW governing
notification and consultation to minimize adverse impacts and other issues
relating to wildlife resources; (2) ...; and (3) minimize surface disturbance
... in important wildlife habitat by incorporating appropriate best management
practices in certain COGCC orders and decisions. (page 2)
The sections of the new rules that have an anti-environmental effect are: 906
(a) and 901.d
906.a. states in full:
906. SPILLS AND RELEASES
a. General. Spills/releases of E&P waste, including produced fluids, shall be
controlled and contained immediately upon discovery to
protect the environment, public health, safety, and welfare, and wildlife
resources. Impacts resulting from spills/releases shall be investigated
and cleaned up as soon as practicable. The Director may require additional
activities to prevent or mitigate threatened or actual significant adverse
environmental impacts on any air, water, soil or biological resource, or to the
extent necessary to ensure compliance with the allowable
concentrations and levels in Table 910-1, with
consideration to WQCC ground water standards and classifications.
I.
The first issue is with one of the sentence in 906.a. with the relevant part
quoted here: “Impacts resulting from spills/releases shall be … cleaned up as
soon as practicable. If the spills/releases do not threaten surface or
groundwater, this rule requires quick removal and prevents environmentally sound
remediation. This rule would appear to require digging up the contaminated dirt
and hauling it to a disposal site. It would appear to not allow cleanups that
take longer than immediate removal, such as bioremediation using grasses or bugs
that would remediate over long a long time. The advantages of bioremediation are
several: avoidance of disturbing the site and creating possible dust conditions
and removal of the contamination using trucks that may disturb neighbors and
traffic and consume fuel, and merely moving contamination from one location to
another location at the disposal location; bioremediation with certain grasses
allows contamination to be absorbed by the roots and moved to the leaves and
harvested or altered into benign compounds; bioremediation with bugs may alter
the contamination into benign compounds.
II.
The second issue with section 906.a. is the following sentence with the key
language underlined, “The Director may require additional activities to prevent
or mitigate threatened or actual significant adverse environmental impacts on
any air, water, soil or biological resource, or to the
extent necessary to ensure compliance with the concentration levels in Table
910-1, with consideration to WQCC ground water standards and
classifications.”
The problem with the underlined text is that Table 910-1 lists cleanup
concentration levels that may be lower than the contaminates’ background levels
in native soils and ground water. For example, the cleanup level for arsenic as
a metal in soil is 0.39 mg/kg or .39 parts per million (“ppm”). An urban
geochemical study of the city of Pueblo showed the highest levels of As
concentrations ranged between 56.6 and 66.5 ppm. Another study showed the range
of naturally occurring background concentrations for soil arsenic in Colorado
state to be 4 to 40 ppm.
It
appears the COGCC recognized the issue because footnote 1 to Table 910-1 states,
“Consideration shall be given to background levels in native soils and ground
water.” However, the rule allows the Director to require cleanup stricter than
background levels after consideration of the background levels, the rules do not
forbid cleanup stricter than background levels. If COGCC does not intend to
require cleanup stricter than background levels, then it does not need authority
to require it. There is nothing in the rules to prevent COGCC from requiring,
for example, the entire 640 acre site from being remediated below background
levels, or threatening that requirement in negotiations. While cleaning stricter
than background is environmental good, but depending on the area to be
remediated, not likely cost effective and contamination from nearby areas may
migrate and recontaminate the area.
III.
The third issue is that a revision to Section 901.d. of the prior rules removes
the express right of operators to propose alternative cleanup goals using
risk-based approaches. Below is the redlined version showing the deleted text as
stricken:
901. INTRODUCTION
d. Alternative compliance methods. Operators may propose for prior approval by
the Director
alternative methods for determining the extent of contamination, sampling and
analysis, or
alternative cleanup goals using points of compliance or
risk-based approaches.
However, there is much value in risk based approaches as they address the
environmental issues in relation to risks of harm to the environment and humans.
“The use of terms such as risk assessment, risk-based corrective action (RBCA),
and risk-based environmental restoration has been on the rise in the
environmental cleanup industry. For example, over 40 states have adopted, or are
considering adoption of, RBCA procedures for dealing with contaminated sites
based on standardized risk management approaches developed by the American
Society of Testing and Materials (ASTM). Many contaminated sites, including most
sites associated with leaking underground storage tanks, are now managed using
risk-based environmental restoration.” Charles J. Newell, John A. Connor on
Risk-based environmental restoration. McGraw-Hill’s Access Science at
http://www.accessscience.com/abstract.aspx?id=YB011370&referURL=http%3a%2f%2fwww.accessscience.com%2fcontent.aspx%3fid%3dYB011370.
Risks may be reduced to a level acceptable to the regulators by institutional
controls such as restrictive covenants in deeds or physical methods such as
blacktopping an area to turn it into a parking lot to prevent rainfall from
causing migration of contaminates.
If operators may remediate using risk-based factors, the cost to remediate often
drops dramatically while avoiding unacceptable danger to the environment and
humans.
These three issues indicate the new rules fail to minimize
adverse impacts and other issues relating to wildlife resources; (2) ...; and
(3) minimize surface disturbance.
