Citizen Groups Need to Return to Day 2 of Rulemaking
On Monday, June 17, the long-awaited Colorado Oil and Gas Conservation Commission rulemaking began with a COGCC ruling that denied industry motions to strike citizen experience from the record. COGCC rulemaking is planned for the next two years to implement SB19-181 Protect Public Welfare Oil and Gas Operations.
Residents and mineral owners in the Broomfield neighborhood of Wildgrass were among the impacted residents who were encouraged that their concerns might finally be heard during rulemaking at the COGCC. Extraction Oil and Gas, Inc. had filed an eleventh-hour motion to strike specific parts of the prehearing statement of Wildgrass Oil and Gas Committee (WOGc), claiming these statements which merely recounted publicly recorded events were meant to “impugn” Extraction’s reputation. The COGCC denied that motion.
A last minute “proposal” by Colorado Association of Mineral and Royalty Owners (CAMRO) and industry groups was also denied by the Commission. These groups requested that the rulemaking not include three forced pooling items and stated that they represented the opinion of Colorado mineral owners. Commissioner Hopkins of Broomfield asked how broad their group was and noted that WOGc as a significant mineral owner group should have been consulted.
A motion by Attorney Kate Merlin on behalf of Colorado Environmental Associates was denied unanimously by the Commission. She stated that the stakeholder process was not completed according to correct procedure and that the Commission should not make any decision at the end of rulemaking until it was. Even though the COGCC denied the motion, many of the Commissioners did agree that some parties were trying to gain advantage in the proceedings by their late motions.
To the disappointment of many citizen groups, COGCC Hearings Manager Mimi Larsen announced, “Issues Deemed to be Outside of the Scope of the 500-Series Rulemaking.” Groups could speak on issues outside the scope but the COGCC said they would not be making rules on them. This narrow scope did NOT include:
- “Changes to the Commission’s variance process.
- Changes to standing before the Commission or categories of person entitled to notice.
- Changes to the Commission’s financial assurance requirements, including bonding.
- Cumulative impacts.
- Providing advocates to represent the public in Commission proceedings.
- Substantive changes to Commission Rule 508.
- Changes to the Commission’s permitting requirements, including alternative site analysis and moratoriums.
- Substantive changes to the Commission’s enforcement authority, including penalty amounts.
- The involuntary pooling of leased minerals.
- The definitions of oil well and gas well.
- The sequence of oil and gas development (leasing/pooling/spacing).”
Commissioner Boigon questioned the difference between the role and qualifications of new Administrative Law Judges (ALJs) and previous Hearing Officers and those questions did not get fully resolved. He also wanted clarification from the Staff that “fatal flaw” decisions made by ALJs could still be appealed.
During industry testimony, they demanded that any application be responded to by an ALJ in only 10 days with either a request for more information or determination of a complete review. When questioned by Commissioner Boigon, industry attorneys stated that they needed certainty of date of processing.
The industry also proposed a language change of adjoining “units” to “tracts” in rule 530 which considers how many leases need to be surveyed to determine if a “good faith” offer was made as a prerequisite for forced pooling. Tract is not clearly defined in the rules but most likely equates to parcel. In a subdivision of mineral owners like Wildgrass, every homeowner’s property would be defined as a tract, which would severely limit the number of lease comparisons to be made in an adjoining “tract.”
COGCC Director Robbins announced that the hearing would have a hard stop at 5 pm, so only one of the citizen groups was able to testify by the end of Monday. All the other citizen groups who had been waiting all day have to return to testify on Tuesday morning.
The first citizen group was led by Attorney Dan Leftwich representing Colorado Rising. He stated that the COGCC should be working on substantive rules about health, safety and welfare first so that ALJs know what rules to implement. Otherwise, he said, “The Commission is just creating a fast track for permitting under the Interim Rules.” Be The Change Leader Phil Doe emphasized that the COGCC was obligated under SB19-181 to consider cumulative impacts. Vicki Kettler of North Range Concerned Citizens cited their neighborhood’s difficulty in dealing with Extraction and the COGCC to protest.
Broomfield groups who will speak on Tuesday include Anthem Ranch Community Association Board of Directors, Broomfield Concerned, Broomfield Health and Safety First, Broomfield Moms Active in Community, Oil and Gas Education Group, Residents Rights and Wildgrass Oil and Gas Committee.