Council Passes Regulations Unanimously With Future Consideration of Amendments and Air Quality Testing Goes Forward

“Take a picture,” Mayor Ahrens stated as he added that he “was proud that Council came together” to  unanimously pass Ordinance No. 2067 Amending Certain Sections of the Broomfield Municipal Code Concerning Broomfield Oil and Gas Regulations.  Six votes were needed for the regulations to pass on a night when only eight Council members were present, with Council Members Erickson and Tessier absent.  No Council member seemed deterred by threats made by representatives of the Colorado Oil and Gas Association (COGA) and Colorado Petroleum Council (CPC), but a compromise was needed to set dates certain for a first reading of three amendments on August 14.

Special Counsel Elizabeth Paranhos began her presentation of the regulations by stating that they were written to implement Charter Amendment 301, along with input from the Task Force Comprehensive Plan Chapter, the Legal Subcommittee Recommendations, Best Management Practices (BMPs) from the Extraction Operator Agreement, citizen recommendations, Staff, and Council.  Ms. Paranhos was careful to state that items like the Task Force Alternative Site Analysis and Legal Committee Guidelines for setbacks would be “starting points” for discussions with operators, meant to avoid immediate preemptive challenges by the oil and gas industry.  COGA Outside Counsel Mark Matthews showed that he recognized this tactic by stating that the City would also be held accountable for “applied challenges” in the area of preemption.

About one dozen Broomfield residents commented on the regulations.  Cristen Logan reminded the City that “the regulations are only as good as the enforcement of them.”  Heidi Hinkel stated that the burden of proof should always be on the oil and gas industry to show that operations are not detrimental to health and safety.  Former Task Force Member Susan Speece recounted that the COGCC had told the City that they were interested in regulations the City created and she encouraged Council to pass the regulations.  Ann Marie Cleary reminded Council that the Martinez decision was the law of Colorado while under appeal, which Council Member Shelton later rebutted as not being supported by the lawyers with whom he consulted.

In representing 301 Broomfield Health and Safety First, Neil Allaire previewed amendments that Council Member Kreeger later introduced giving citizens the ability to request that the City protest a drilling permit at the COGCC and also outlining a nuisance hearing procedure.  These ideas had been introduced at the May 9 first reading of the regulations.  Council’s consensus at the end of the evening seemed to be that the City should always request a COGCC hearing on drilling permits but there will be a Study Session to discuss this amendment.  The three amendments that will have Study Sessions and then first readings on August 14 are:

1) The City will always protest drilling permits at the COGCC, proposed by Council Member Kreeger.

2)  There will be a detailed outline of a nuisance hearing procedure to handle citizen oil and gas complaints, proposed by Council Member Kreeger.

3)  Consideration will be given to extending setbacks during the platting of new residential developments from existing oil and gas wells, proposed by Council Member Castriotta.

Council Member Law-Evans withdrew an earlier motion that the Task Force setbacks and Alternative Site Analysis be required in the permitting review process instead of optional.  Council Members Shaff and Shelton also expressed some interest in a citizen request made by Jean Lim to have a more specialized review board in the Use by Special Review Process instead of the Planning and Zoning Board.  Mayor Ahrens stated that the passing of the regulations was “a first step,” with “amendments every two weeks if we need to.”

During general Citizen Comments, Broomfield resident John Dulles applauded the work of CCOB Attorney Shaun Sullivan for his June 29 letter to Extraction citing breach of contract.  Mayor Ahrens added “we agree” with John Dulles’ pride in Attorney Sullivan’s bold defense of the City’s work on the Comprehensive Drilling Plan (CDP).  Also regarding the CDP, Laurie Anderson presented evidence that Extraction was required to provide a complete risk analysis and that calculations showed that there was a 99% chance of a spill on one of the proposed Extraction pads.

During item 11d on the agenda, members of a committee who reviewed air quality proposals described their recommendation to Council of the combined proposal of Colorado State University and Ajax Analytics.  Staff was seeking direction from Council if they could go ahead and negotiate a contract for it at a cost of approximately $1,762,768 for three years.  As described, the testing will include state of the art monitoring equipment along with data transparency for the public.  The Staff stated that they will use the data for:

1) information supporting emergency response actions

2) follow-up information to respond to citizen complaints and concerns

3) information supporting follow-up inspections to identify violations

4) data and trend analysis to support health decisions and possible regulatory and statutory changes

Monitoring equipment will include SUV based mobile vehicles to track plumes, 17 sensors placed on eight foot poles, canister monitoring, and hand-held devices.  Council Member Kreeger questioned if the hourly data from the 17 sensors was adequate and the Staff said it would check into that further.  There was also a question raised by resident Jean Lim about increasing the frequency of data posting from quarterly, with the Staff responding that this was not negotiated yet.  The Staff also stated that the VOC level designating an “emergency response action” condition was not going to be stated in absolute numbers but in percentage of change due to the new technology’s variance in calibration.

The CDPHE also determined that it wants to place its CAMEL monitoring unit near the Livingston Pad for a baseline two weeks before the construction of the pad and two weeks during flowback. The Livingston Pad was chosen as a low level point of accumulation.  Mayor Ahrens stated that Council was still discussing the possibility of relocating the Livingston Pad which would require the CDPHE to modify its plans if that happened.

Council Member Castriotta asked about how odor could be monitored.  Staff member Laura Davis stated that it would be important for the public to report odor concerns in a timely manner with specific information but also added that it is difficult to correlate odor with health effects.

In the Staff’s pricing of soil gas testing around plugged and abandoned well sites, they differentiated between the cost of $100,800 to test all 72 such wells versus $60,200 to test 43 plugged and abandoned wells within 500 feet or less from a residence.  Director of Special Initiative Tami Yellico stated that the first step would be to have Extraction pay for soil testing the wells it was required to test by the Operator Agreement.  Council Member Shaff stated that it was adequate to have Phase I testing a certain number of wells but that it “should not be a maybe” that the rest eventually get tested.

In remarks by City Manager Ozaki regarding possible funds for air quality and soil testing, he stated that Broomfield has $2.2 million dollars of unallocated general funds that came from oil and gas property tax revenue generated since 2004.