COGCC Adopts New Rules.

The Colorado Oil and Gas Conservation Commission ("COGCC") adopted new rules December 17, 2008. However, several sections in the new rules have an anti-environmental effect and are contrary to the stated purposes of the rules.

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 effects are: 906.a and 9-1.d.

906.a. states in full (with the changes to the prior rules redlined):

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 (see Attachment A) 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 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.

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.

Recommendations:

1) revise rule 906.a. by deleting the requirement to cleanup  impacts resulting from spills/releases as soon as practicable, but to allow appropriate longer term remediation; 

2) do not allow COGCC to require remediation stricter than background levels; and

3) permit risk-based remediation where approved by COGCC.