Is the way the state handles oil & gas complaints criminal?

Criminologists find troubling pattern of state agency under-reporting complaints and leaving Coloradans feeling voiceless

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Joel Dyer

When two Colorado-based green criminologists turned to examine the heated local issue of oil and gas development with their area of focus in mind — not what is a crime, but what should be considered a crime — they found a pattern among the response received by the thousands of residents who have complained to the state about the oil and gas industry. What they’re reporting in a recently published study may change the conversation about development for those thousands of Coloradans affected by the oil and gas industry. They raise the idea that the way Colorado handles complaints, which leaves complainants feeling unheard and their concerns going unresolved — as though they are victims who find no recourse through the regulatory body charged with policing the industry — may actually be criminal, and these people are victims of environmental crimes.

That fits with how some residents feel about the recent changes that have occurred in their neighborhoods.

When Longmont resident Jennifer Medoff moved into her house, where she and her husband and children live, it was surrounded by scattered oil and gas development. Then, about a year ago, the drilling boom moved in next door. Sites with one and two of the squat, beige tanks now house a handful of smoke stacks and double-tall tanks. Drilling rigs are a constant companion.

“I walk along the edge of the neighborhood and you look in a direction, and it’s like when you look at the mountains, the front mountains are dark and then you go to the next line and they’re a little lighter until they almost disappear. It’s like frack tower after frack tower after frack tower disappearing into the atmosphere. It’s just gross. I don’t even want to live where I live anymore,” she says. “I feel like I live in an industrial area now. It’s really, really disheartening. We had nice gravel roads that I would run, and I don’t like to run the roads anymore. It really frustrates me. I live there, I worry about my health, I worry about the crops with the irrigation water that runs right past these wells, I wonder about the cows that are giving milk that are eating the grass that is right next to these wells.”

This year, she finally took her concerns to the state’s oil and gas regulating body, the Colorado Oil and Gas Conservation Commission. She first called to ask questions and then, about six months later, to file an official complaint. In addition to the wells being an eyesore that blocked their only view of the mountains, she was concerned she could smell gas coming from a flaring well about a mile away, that the water in nearby Union Reservoir might be contaminated, and that flaring gas was producing a flame that stretched five to seven feet high. There had been some intermittent noise, as well, and lights like those for a stadium had been used to light up the site.

The COGCC employee she spoke with, she says, took as much time as she wanted to take to ask questions, but left her with the feeling that he was paid to listen to complaints as long as it took, give a few random facts and then send folks on their way.

“I got the distinct impression that he was personally for drilling because I did get into some of the ethics with him and a little bit of philosophy, and the response was, he would do what he could, per his job, to ensure that the regulations were being met by this well and that there were no laws being broken,” she says.

Among the pieces of information she was given, she says, was that all of the ingredients for fracking fluid can be found in a grocery store, which, given ammonia and rat poison can be found at the grocery store, she calls a ridiculous argument.

“That’s when I started to feel like he just had all these one-liners in his pocket to talk someone down, and I appreciated that he was willing to talk to me, but I did not feel like he was interested in solving the problem,” she says.

He did put her in touch with the superintendent on site.

“He was validating to an extent that he understood why I didn’t like this, and he went into detail explaining what the purpose of the flame was for and how long it would be there and he was right that it wouldn’t be there very long,” Medoff says.

The flame was out, and the tower came down, just as he said it would, she says, and then the tower went back up.

“It just goes on and on,” she says. “We love our neighborhood, we love our neighbors, we love our house, and so it kills us, you know. It’s not something that we’re to the breaking poin yet, but I feel like I am a test subject, and my kids are test subjects in this population where there are dense wells in the environment. … It may have just become more dry recently, I don’t know — my son is having a lot of nose bleeds. I have a ton of headaches that are still unexplained. I don’t want to attribute them to that without knowing — I mean, that could be a whole variety of things, the dry air. I’m actually a very fair person, I try to look at all sides and try to understand things before I pass judgment, and so far what I know of this is extremely concerning to me. It’s like, if a small percentage of the health effects that people estimate could be true are true, we’re in big trouble.”

The experience, on the whole, left her feeling voiceless and victimized. Though they said they would, no one from the state called her back to tell her what, if anything resulted from her complaint.

“I feel like such a victim, that some rich people who live in another state decided to come in and rape my land and violate me where I live — and that’s extremely strong language and I don’t say that about a lot of things, but that is how I feel about this and it doesn’t seem like I have a lot of say,” Medoff says. “I don’t feel like my voice means almost anything.”

Green criminologists who study the experiences like those Medoff reports share findings with industry and the regulatory body that monitors that industry, as a principle.

“These criminologists posit that ecologically or socially harmful actions are worthy of examination even if (and perhaps especially if ) the state does not acknowledge the phenomenon as illegal,” write the authors of the study “Energy Crime, Harm, and Problematic State Response in Colorado: A Case of the Fox Guarding the Hen House?” which is published in the November edition of Critical Criminology.

The conclusion these two professors, Tara Opsal and Tara O’Connor Shelley, came to was that their research had documented the “dark figure” of environmental crime — crimes going undocumented, unreported and even unacknowledged as crimes, though the actions were nevertheless criminal.

In their analysis of the response from the state regulatory agency in charge of policing oil and gas development and protecting citizens, the Colorado Oil and Gas Conservation Commission (COGCC), they found the state engaged with concerned citizens in ways that diminished or misrepresented their experiences with oil and gas development. Official complaint reports diminished the seriousness of complaints filed by thousands of Colorado residents who say oil and gas development near their homes is affecting their quality of life. The organization also demonstrates a pattern of blaming problems on factors other than oil and gas development, including the people who called in the complaints.

It all has the effect of a smokescreen that reads “mistakes were made,” rather than crimes were committed.

Victims of crimes committed against the environment and human health are studied in the emerging field of green criminology, which applies the idea of crime to the sense of wrongdoing rather than exclusively to lawbreaking. Examining the general way regulatory agencies and the industries they regulate function — for example whether the fines assessed oil and gas companies have any effect on their behaviors — and how the public responds to those agencies also fits within the scope of study for criminologists.

Their first hurdle comes with addressing the image of what defines a crime and what defines a victim.

“One of the goals is to look at crime outside the traditional or mainstream definition of crime. We typically see crime very visually as street crime — so, murder, rape, robbery, burglary, those kinds of things, and if you ask a person to name a crime those are typically the crimes that they’ll mention,” says Melissa Jarrell, associate professor of criminal justice at Texas A&M University – Corpus Christi. “So one of the main goals of green criminologists is to examine environmental harms and call attention to these types of harms — and we often use the word ‘harm’ because many of the behaviors are harmful, yet they’re completely legal behaviors. … So the majority of green criminologists tend to define crime as legal and illegal behaviors that cause harm, because there are quite a few things that are completely legal, but shouldn’t be, and that gets into the whole power dynamic of who decides what’s a crime and what isn’t.”

In green criminology, that lens shifts to examine ecologically and socially harmful actions in a way that redefines both what constitutes a crime, and what, or who, can be a victim.

“I see this happening here in south Texas with the oil boom — a lot of people are getting very rich, very quickly, but the legacy of environmental pollution and what that does to people’s health is disturbing,” Jarrell says. “Criminologists are trying to point to this behavior and show that indeed much of it should be considered criminal behavior.” 

To complete their research on Colorado’s handling of the oil and gas industry, Opsal and O’Connor Shelley began by downloading 2,444 complaints from the COGCC database — each of which is filed individually with no aggregate record or longitudinal analyses available — and analyzing the content of those complaints. They identified 19 concerns listed by complainants, the most ubiquitous being well water issues such as changes in odor or appearance, water quality or even water lighting on fire; dumping, spills and leaks of produced water, oil, contaminated mud and other substances; air quality concerns like odor, air pollution, venting and flaring; and noise from oil and gas activity.

“Regardless of the nature of the harm, our interviews revealed that most were persistent and omnipresent rather than short-term isolated incidents,” their report reads.

To the 732 complainants who included a complete address, Opsal and O’Connor Shelley sent letters asking for interviews, received more than 100 responses and were able to interview 65 individuals. They drove hours across the state to visit these people in their homes and tour the sites that were the source of their complaints.

“We had a lot of compelling data, and the data that’s in the Critical Criminology article is representative of other participants’ experiences that we heard, so it’s not just sort of a random collection of stories. We chose those stories because they were representative data of other perspectives,” Opsal says.

Study participants were also scattered throughout the state, in areas with low intensity drilling as well as some with high intensity drilling — though most respondents tended to cluster in areas with a high density of drilling, such as Weld, Garfield, La Plata and Huerfano counties.

“These participants, they’re a wide range of individuals,” O’Connor Shelley says. “We’re talking to ranchers, farmers, people that own a lot of property or don’t, a wide array of experiences with oil and gas activity, some are new to it, some grew up with it and are very familiar with it. Some people who work in the industry. … One of the interesting things is there’s a variety of support for oil and gas development as well, so we have a pretty diverse sample. … Definitely people who are very supportive of industry, but would prefer that industry respond to things differently, handle things different, or for the state to respond differently than the way that they experienced.”

Their study was entirely self funded. 

“We didn’t seek out funding because this issue is so contentious that who your funder is could often be used as a way to make conclusions about the research, so we really wanted this to be pure academic research without getting funding from any stakeholder group, any environmental group, we didn’t take money from the industry,” Shelley says. “We had participants ask us if we had received funding from either environmental groups or industry, so it was always important for us to be able to say the study wasn’t funded by either.”

The responses O’Connor Shelley and Opsal reported align with the sentiments Medoff shared — one of having barely been heard, and having no recourse and little response from the agency they expected to protect the health and welfare of Coloradans and preserve the environment for future generations.

During each interview, Opsal and O’Connor Shelley began by showing the participants the COGCC paperwork on their complaint.

“Many participants expressed sur prise, confusion, chagrin or outright anger when they read the state’s formal account of their experiences because the forms often did not accurately represent the harm participants believed they had reported,” their study reads.

One complainant, referred to only as “Dan” (the names they list are pseudonyms to protect individuals from any recourse) had called the COGCC over several years to make complaints about traffic, dust, noise and light from oil and gas operations near his house and, eventually, health effects such as headaches, dizziness, uncontrollable nosebleeds and flu-like symptoms. When handed the complaints O’Connor Shelley and Opsal had downloaded from the COGCC database, he said not all the complaints he’d made were there.

“I think they probably got tired of me calling and complaining, so that’s probably why you did not find all of my complaints and why they are not in the public records,” he told them.

Often, participants said the official records misrepresented their experiences. One couple, “Rick and Jenni,” said they’d come home to find their cows refusing to drink from a water tank because the water had become milky white. Oil and gas development had just begun nearby, so they contacted the COGCC to complain. A representative hydrologist came out and acknowledged a visible problem, but the report reads as though the hydrologist wasn’t concerned about it.

Rick and Jenni were told that the changes they saw in their well water — which they described as looking milky or muddy, sometimes effervescent or oily, and smelling like rotten eggs, sulfur or hydrocarbons — were caused by naturally occurring methane or a failure to do proper maintenance on their well.

The most common state response to citizens’ concerns, which was particularly common with well water complaints, was that they simply did not result from oil and gas activity. Often, the person making the complaint was blamed as the cause of the issue.

But throughout the state, in multiple participants’ homes, O’Connor Shelley and Opsal heard similar characteristics described in changes for well water quality. Like “Cade and Mandy,” who reported their well water turning muddy and murky gray, with oil slicks.

“You could just barely see through it to the bottom, and when you did, you could see there were big piles of sediment on the bottom,” Cade told the researchers. “It was not like, ‘I think it may look a little different,’ it was like, ‘What the hell happened here?’” 

And it happened the day the well nearby was fracked, he said.

As with Rick and Jenni, the COGCC response blamed problematic well maintenance on Cade and Mandy’s part.

Cade told them he felt the state agent who worked on his case was told to “sweep this one under the rug,” and that the many tests of his well water were conducted simply to disprove the complaint. He was among several participants who made comments expressing doubt that the state’s operations were impartial.

“It’s like, ‘Get the gas if you don’t screw everything up in the process,’ versus ‘Get the gas and worry about the rest of it later,’” he told researchers.

If the state did acknowledge harm, complainants were told the harm they experienced wasn’t significant enough to be considered a violation of regulatory rules — but, having reviewed the official complaint, participants also expressed a sense that the state’s documents expressed a reduced sense of seriousness for the harm they were experiencing, and state response was ineffective.

The study found that “the state’s responses they described rarely stopped or fixed problems [participants] experienced,” and “instead, relayed a consistent message: oil and gas activity is not harmful and you are not an environmental victim.”

“Nate and Barb,” who lived within half a mile of six well pads, complained to the COGCC about the smells coming from those wells and claimed health effects that included “sores in their noses, trouble breathing and uncontrollable coughing.” When a COGCC agent visited their home, he acknowledged that there was an odor in the air, but air quality tests revealed the problem was “not harmful enough” and “did not qualify as problem enough to mandate a change in industry behavior.”

Barb said she was told, “It is your responsibility to leave if you get odors that you can’t handle.”

This response in particular, the researchers said, “often left participants feeling helpless, angry or stressed because problems typically lingered for considerable lengths of times and these environmental victims felt there was little they could do to change their own circumstances.”

Some participants have also stopped reporting their concerns to the COGCC because they saw the agency’s response as ineffective — meaning that the ongoing, official record of Coloradans’ experience of oil and gas activity is missing documentation of those concerns and not representing real experiences.

“Formal representations of the problems are misleading and citizens ‘real’ experiences with oil and gas activity remain misrepresented or untold,” the study states.

Opsal and O’Connor Shelley characterize that as concealing harm and enabling industry expansion, and the participants response as feeling that the state regulation and COGCC are actually “invested in getting it wrong.”

As one of the study participants explained, “They wanted the industry, for the economy. … And if they have to sacrifice a few people, well that’s too bad. We just happen to live in the middle of it.” 

While the participants declared it a situation of the fox guarding the henhouse, the researchers took it a step further, saying that “not only is the fox guarding the henhouse in Colorado; the fox and the industry are actually one in the same.”

“That doesn’t surprise me,” says Texas A&M’s Jarrell of the study’s conclusion. “That’s been true in Texas as well.”

She points to the Texas environmental agency’s board in charge of oil and gas development, which is stocked with businessmen instead of environmentalists. (The COGCC is similarly loaded with individuals employed by the oil and gas industry.)

“Our environmental agency rubber stamps industry, basically,” she says. “That’s been a long-running acknowl edgement that they’re not protecting the environment or people’s health. They’re protecting the interests of industry at the expense of people.”

O’Connor Shelley and Opsal found that the compulsion to keep feeding a capitalist economy requires the state to enable the advancement of the oil and gas industry.

Fracking is also fueling an oil and gas boom in Texas, and Jarrell says, “In Texas, and I’m sure this is often true in Colorado, they tell us point blank that industry, business concerns, jobs are more important than the environment and of course the people affected by environmental crimes.” 

 Part of the trouble is the timing. 

“You have to drop dead right on the spot or be injured right away in order for us to conceptualize that as a problem. We don’t look at the person who’s exposed to dangerous chemicals over a long period of time who may develop cancer as a result — we’re not worried about if that happens 20 years down the road. The immediacy issue is the problem,” Jarrell says. “So if, like Deepwater Horizon, if that occurs, or the explosion in Texas City or Exxon Valdez, if it’s an immediate disaster and a high body count, we see attention drawn to the issue. But absent that, it’s like the Ebola thing right now, certainly it’s something we need to be concerned about, but where is the uproar over environmental crimes that are causing far more harms to far more people?” 

Jarrell also points to systemic problems with regulation. Much of the environmental data is self-reported from companies that might be doing the harm and that regulatory bodies are limited in what they can enforce simply by the number of inspectors and criminal investigators available. The Environmental Protection Agency, for example, has 200 criminal investigators for the entire country looking for environmental criminals. The Boulder Police Department alone has 288 full time employees.

“I look at environmental regulation as a very distant concept. It’s not very hands on,” Jarrell says.

She lives in a town with six oil refineries, and the brunt of those environmental affects hit people of color from a lower socioeconomic status, she says, and there’s not much political or social focus because it seems like a problem just for that group of people. One of the dialogues they’re having in south Texas is to realize that pollution affects everyone.

“Pollution isn’t going to just affect poor people of color, it affects everyone in the community, but until people in positions of power are affected directly, I don’t know if we are going to have that type of response that we need,” she says.

In Medoff ’s case, the COGCC report about her complaint lists a number of issues — noise, odor and concerns about surface water. It does not mention her concerns about the flame, although that was, she says, central to her complaint.

The report, instead, focuses on noise concerns, and details the inspector’s site visit and the corrective action required to reduce the noise level. Notes also mention that an Oil and Gas Team of the Air Pollution Control Division inspected the well site on the day she complained, and noted that no odors were observed near her home. Thermal imaging cameras indicated possible emissions from a tank battery, and the state asked for corrective actions.

An inspector later following up on the noise concerns took readings near Medoff ’s house and then approached the well. The decibel levels he recorded near her home were on the level of the hum of a refrigerator, and within 350 feet of the well, the noise rose to a level that was louder than a dishwasher, but not as loud as a hairdryer. That was loud enough for Synergy to be issued a violation.

“The noise, that was like a very small part of what I said to them, because at that point there wasn’t a lot of noise,” Medoff says.

She never heard from the inspector when he visited the area, never heard back from the COGCC, though she’d been told they’d look into the matter and call her back. She hadn’t even heard that the well had been in violation.

Told of the contents of the inspector’s field report, she responds, “The problem with that is that it’s not a constant noise source, so there are times where they go to actually check it, and it’s not making any noise at all, so I don’t think that’s really valid unless they continue to go back. But I’m glad to hear that they were in violation.”

Oil and gas activity has continued near her home, and she says if that previous well was in noise violation, some of the more recent ones in operation likely are, too. A recently established well is near a large irrigation ditch, and she plans to call to ask a few questions about that, too, Medoff says, “Not that I believe that my little voice is going to make any change whatsoever.”

Respond: letters@boulderweekly.com

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