When Longmont-area farmer Rod Brueske lodged a complaint about the Colorado Oil and Gas Conservation Commission’s (COGCC) settlement with Encana Oil & Gas Inc. following an air quality violation, the commission warned him that he would have the burden of proof for each and every alleged violation, and failure to prove his case could lead to an outcome that included no fine and no violation for Encana. But as Brueske works to prove his claim, he says, he’s running up against roadblocks from the state that he argues may prevent him from successfully making that case, including being denied access to the documents showing the state’s calculations for Encana’s settlement fine and testimony from an inspector who visited a well hundreds of feet from Brueske’s home in early 2012, while Brueske was lodging complaints with the state about emissions from the well.
A key component of his complaint is that the state’s fine for Encana accounts for too few days of a well out of compliance. Anyone with the data for when the wells came online, how much natural gas they were producing and how much volume the emission control device processes could probably do the math on how long they were out of compliance. But Brueske has been told the state’s calculations aren’t public information.
“They’re trying to loophole me into silence,” Brueske says. “This will make it look like they gave me a chance. I don’t have a chance.”
The heart of Brueske’s complaint was that the company hadn’t been fined enough for what he saw as a risk to the health and welfare of his family, and that the fines levied against Encana were outdated.
“The violation had a significant negative impact, or threat of significant negative impact, on the environment or public health, safety and welfare,” Brueske argues in his request for a hearing. “Mitigating factors that might adjust fines should not be considered due to the fact that the operator installed inadequate equipment where [sic] was later replaced only after I called the COGCC and [Colorado Department of Public Health and Environment] to file a complaint.”
Following months of complaints from Brueske, an inspection by the state’s Air Quality Control Division found that wells near Brueske’s house were equipped with emission control devices too small to reduce the volatile organic compounds released from those wells to an acceptable level. For that alleged violation, the state offered Encana a settlement — for the payment of $53,900, the company would be recused from further legal action on those violations while not having to admit being guilty of those violations (Encana maintains that the well was in compliance).
At a Nov. 15 hearing for the COGCC to approve the settlement, Brueske complained that the fine was insufficient and asked to pursue his complaint against Encana.
“The Commission explained to Mr. Brueske that this meant that he had the burden of proof on each and every alleged violation in the NOAV [Notice of Alleged Violation],” Encana points out in a Jan. 28 motion to strike. “Mr. Brueske was also advised by the Commission that should he elect to proceed to prosecute the alleged violations on his own that all Commission Rules must be followed and that a possible outcome was no violation and no fine if every element of each alleged violation was not sufficiently proven by him.”
He was given a printout of the commission’s rules, more than 200 pages that filled a three-ring binder and included nuances like documents with 13 accompanying copies. Brueske’s a farmer, not a trained lawyer, but he has tried to work his way through the legal system to make his case. He’s faced multiple filings from Encana to see the case dismissed.
“The wonderful thing is, the state has struck both their motions to strike, so I have two little victories, as small as those may seem,” he says.
Robert Frick, hearings officer for the COGCC, said Encana’s motions to dismiss had, in places, elevated form over substance and he “reluctantly” recommended the commission reject Encana’s arguments for dismissal. Oral arguments for Encana’s motion to dismiss the case will be heard on May 6.
One of the elements of the argument Brueske is seeking to prove is that the wells were out of compliance for long enough to merit more than the $53,900 fine.
The Colorado Air Pollution Prevention and Control Act specifies that the penalty for violations like those Encana was accused of making in April can be up to $15,000 per day for each violation, depending on the severity of the violation, the company’s prior air quality violations in Colorado and the cooperation of the company in remedying the violation. Because Encana cooperated and worked to bring wells quickly into compliance, the Air Pollution Control Division offered a reduced penalty. Encana expressly denied that it was in violation of any air quality laws, according to the settlement letter, which was signed by Shannon McMillan, field services program manager for the Air Pollution Control Division.
But matching that fine with the days out of compliance works out to some weird math, Brueske argues. On the one hand, the COGCC told him the fine accounted for a 10-day violation — meaning the maximum fine is almost three times the settlement penalty.
“I was asking for the original calculations of the original fine, and that’s when Tom Roan, the [first assistant] attorney general, said, ‘Oh, those calculations have been destroyed.’ Since then, he called me back and said, ‘We did find the calculation, and Encana was only out of compliance two days,’” he says. Starting with fines that accrue in $15,000 per day, Brueske says, the “reduced penalty” of $53,900 doesn’t seem to fit.
“They either overcharged Encana and wrote in their settlement that they settled for a lesser amount, or there’s a rat of a cover-up,” Brueske says. But without seeing the state’s calculations, it’s tough for him to challenge them.
Throughout the course of the month of April 2012, Encana was bringing additional wells online and had communicated to the COGCC that it had plans to install — or already had working — emission control devices that would handle the increased flow of vapors to the tanks. An air quality inspector also reported, on April 6, that a third emission stack would be added and a seal needed to be replaced. A field inspection form from April 10 showed the equipment for the Ross G Unit 1 well, which was inspected along with several other wells that same day, in satisfactory condition. On April 19, Brueske again called to say he thought an oil and gas inspector should be on site as Encana was bringing all five wells online and adding equipment to the tank battery.
On April 27, after another phone call from Brueske, inspectors from the Air Quality Control Division visited the well site again. This time, they found that the emission control device was too small for the available tank vapors and that a hatch was leaking hydrocarbons onto the tank and platform. The inspectors also reported observing visible emissions and visible leaks of condensate from the hatch. They concluded that a similar “unloading event” took place on April 26, the day before Brueske’s complaint report was filed. Encana was given a notice of an alleged violation of a state air quality requirement for oil and gas operators, which requires conducting all condensate collection, storage and processing in a way that minimizes the amount of volatile organic compounds leaking into the atmosphere — with a target control efficiency of at least 95 percent. “Based on the inspectors’ observations during the inspection, the thief hatch cover was not properly weighted for the pressures from the separator,” the letter reads.
Brueske contends that it was after work on the well done on Feb. 8, 2012, almost two months before the larger emission control device was installed, that his family started noticing a difference in their air quality — the air around his home tasted like a 9-volt battery, he says, and his son suffered uncontrollable nosebleeds. There’s no record of his Feb. 8 complaint on the COGCC website, but a copy of the complaint Brueske provided shows him raising the same kinds of concerns about odors that continued through the April inspection that found the well equipped with emission control devices too small to accommodate the vapors produced from the wells.
Brueske has also asked to have Jen Mattox, oil and gas team enforcement supervisor for the Colorado Department of Public Health and Environment Air Pollution Control Division, testify. Mattox visited the well sit on Feb. 8, when work was being done on it, though Tom Roan, first assistant attorney general in the Air Quality Unit of the Natural Resources Section, suggested that rather than requesting her testimony at a hearing, Brueske use a report from her visit that day. Roan will be representing the CDPHE and COGCC when the case is heard in district court.
“I understand that you still seek Ms. Mattox’s testimony, although the purpose of her testimony is not clear,” Roan wrote in an email to Brueske on April 11. “As I said, the Division has no stake in the outcome of this hearing that would justify the investment of time necessary to prepare for and attend this hearing. Thus, we will likely resist any effort to compel Ms. Mattox’s attendance.”
Brueske requested the documents on the Air Pollution Control Division’s written analysis of the penalty calculation for Encana, and was told those records are not made available to the public.
“These records have not been disclosed to anyone outside of APCD, including the defendant,” Roan told him in an email. “The Colorado Open Records Act authorizes APCD to keep these records confidential as part of the deliberative process for decision making. Our penalty calculations are only the staff recommendations to the decision makers.”
The attorney general’s office does not comment on ongoing litigation.
Brueske has been trying to gather the records to make his case, he says, but getting in touch with people has proved challenging. His next move is to try to get the attention of oil and gas attorneys who might help in crafting his case.
“The state appears to be negligent, and I think that’s the buzz word that everybody’s looking for to get the attention of somebody out there that would probably pursue it,” he says. “I don’t think it would be anybody in the state of Colorado, but somebody who’s high-profile that would say, ‘Yeah, let’s go put a lawsuit against ole Hick and the boys.’”