Broomfield Concerned has recently become aware of an exchange between the city of Broomfield and Extraction Oil and Gas. Below is a summary of some of those key documents as well as links to them. As always, reach out to your city council representatives with feedback (firstname.lastname@example.org).
Part 1: Extraction Responds to the City’s Notification of a Breach with its own Breach Notification.
In a letter written to the City on January 10th, 2020, Extraction Oil and Gas responded to Broomfield’s Breach of Contract notification and notified Broomfield that they considered the City to be in breach of the Operator Agreement.
Extraction referenced the Operator Agreement (OA) Noise Mitigation BMP, which outlines the terms of overnight work in the OA as support for why they were not in breach of the agreement. Extraction indicated that the City agreed to 24/7 operations, and Extraction financially invested in the agreed-upon noise reduction provisions. Extraction stated that they would not have agreed to these costly provisions if Extraction’s operating hours were limited to daytime hours only and reiterated that they were using all agreed-upon BMP’s.
The backdrop of the breach letters, of course, are hundreds of noise complaints made by citizens over the past several months in relation to noise at the Livingston pad. The most impacted time of the day, according to the noise complaints, are at night when people in the adjoining neighborhoods are trying to sleep. The sleep loss and anxiety associated with continued, unwanted noise have proven negative effects on health.
Despite these hundreds of noise complaints made by neighboring citizens, in Extraction’s letter to the city, they outline reasons why they believe Broomfield’s claim of breach of contract is unfounded and not supported. Extraction claims that the City did not calibrate the Livingston Sound Meter since May, a sound meter lacked a wind guard on a microphone, and readings that were taken during high wind periods would elevate the noise readings. Extraction also claims that its own noise data showed noise coming from other outside sources and identified a pack of coyotes howling as an example of what could be causing elevated noise levels.
In this letter, Extraction also notified the City that they believe the City breached the OA when they sent a letter to the COGCC instead of following the dispute resolution process outlined in the agreement. Extraction cited Paragraph 12 of the Operator Agreement to support this claim, which states, “So long as the Operator complies with the terms and conditions of the Agreement, the City agrees that it shall not protest, request a hearing, oppose or object in any forum to any permits, applications or similarly related approvals related to the Operator’s oil and gas operations subject to this Agreement.”
Extraction alleges that the letter sent by the City to the COGCC on December 20th that asked for the COGCC to assist in limiting hours of operation to 7AM to 10PM and for an inspection of the Livingston Site for compliance with noise levels went against the above provision in the contract. Extraction also cited a meeting with the Governor and suggestions that came from this meeting about updating the local ordinances as another example how Broomfield did not properly follow the dispute resolution process in the Operator Agreement.
Extraction also warned the City about passing a new noise ordinance and warned the City against the “exercise of regulatory powers in bad faith.” Extraction also said in the letter that it would hold the City and individual members of Council accountable for violating the “no protest” provision in the Operator Agreement. On January 14, Council unanimously passed Emergency Ordinance No. 2117 Amending Chapter 9-36 of the Broomfield Municipal Code Relating to Noise.
If necessary, Broomfield Concerned will continue to provide updates on this developing story. To read the letter in full, click here.
Part 2: Broomfield’s Response to Extraction Claiming Breach of Agreement
City and County Attorney, Shaun Sullivan sent a response to Extraction regarding the alleged breach of agreement on January 14th.
In this letter, Attorney Sullivan made it clear that the City was able to seek relief for its residents from Extraction’s noise levels and could enact noise ordinances with more stringent standards since the Operator Agreement “specifically recognizes Broomfield’s ability to enact prospective regulations that are generally applicable like the proposed emergency noise ordinance intended to minimize the noise impacts of industrial uses located near residential areas.” Attorney Sullivan went on to further support Broomfield’s rights to enact the noise ordinance by quoting case law stating that “as a matter of public policy, Broomfield did not, and cannot, contract away its police powers to protect and ensure the peace, health, safety, and welfare of its residents.”
Attorney Sullivan further defends the City’s decision to reach out to state officials for assistance, indicating that Extraction has “mischaracterized” the COGCC letter as a “protest” as this letter was not an “objection to any permits, application, or approvals.” He clarified that Broomfield simply appealed to State Officials to enforce their regulations to provide relief to noise issues impacting Broomfield Residents.
Attorney Sullivan also corrected Extraction’s dismissal of the noise complaints being reported by residents. “Extraction is simply wrong in suggesting that all 299 noise complaints from residents, including 198 since December 1, 2019, are unsupported or invalid, and that Broomfield has done nothing to verify the validity of the complaints.” He used these complaints to further support Broomfield’s need to pass the noise ordinance. He acknowledged that the high volume of complaints shows that agreed-upon BMP’s and noise standards were not enough to keep the residents from being impacted by noise levels and as a result, the City must act to protect the “public peace, health, safety and general welfare of the community.”
Broomfield Concerned will continue to provide updates on this developing story. To read the letter in full, click here.
Part 3, Ongoing Interactions Between Broomfield and Extraction Regarding Breach of Agreement.
More public documents obtained from the City show that the City continues to follow up on their claim that Extraction is in Breach of the Operator Agreement. In a letter to Eric Christ of Extraction Oil and Gas dated January 14th, City and County Attorney, Shaun Sullivan reminded Extraction that it has been more than 30 days since the City notified them of being in breach of the Operator Agreement as a result of noise levels disrupting nearby residents. This letter references a fifteen-day deadline to set up a meeting with Extraction to discuss additional mitigation measures that may possibly alleviate the noise issue. This notification is significant, as it is the next step in the dispute resolution process to cure any remaining breach in the Operator Agreement. As of now, there is no indication that this meeting has been scheduled.
An additional letter was sent to Extraction dated January 21st. The City made additional requests to work on the noise mitigation issues. In this letter, the City and County attorney Shaun Sullivan requests the following from Extraction.:
Access to Extraction’s noise source data from the Livingston well pad so City consultants can “evaluate the data and the effect of the mitigation measures.”
Access for City noise consultant to “visit the Livingston Well Pad while operations are ongoing to take sound readings generated by the operations on site.”
It is currently unknown if Extraction is working with the City to fulfill these requests. Broomfield Concerned will continue to provide updates on this developing story.