Colorado oil and gas regulators urged to get it right on fracking chemical disclosure

Colorado’s conservation community wants to make sure oil and gas regulators get it right the first time Tuesday when they decide on a new hydraulic fracturing chemical disclosure rule. Otherwise, they say state officials should keep working on the new rule.

And getting it right means taking into consideration new U.S. Environmental Protection Agency (EPA) findings in Pavillion, Wyo., showing chemicals used in fracking present in groundwater testing wells near where residents have been warned not to drink their tainted well water.

Getting it right also means pre-disclosure of chemicals before fracking (which is required in Wyoming and Montana), full disclosure of any toxic chemicals (no trade secret exemptions) and full public access (requiring immediate website access so the public can sort by type of chemical, date and location of a frack job). In its draft rule, the Colorado Oil and Gas Conservation Commission (COGCC) may not require full sorting on www.fracfocus.org until 2013.

Most of all, says former oil and gas commissioner Trési Houpt, the COGCC should not adopt an inadequate rule on Tuesday in hopes that it can later revisit and correct deficiencies.

“Once a rulemaking has come to a conclusion, it will be years before they look at it again,” Houpt said Thursday. “So what I would encourage for the oil and gas commission, if they can’t find the right solutions on Monday, would be for them to continue the hearing but not come to a conclusion on this particular rule until they’re completely comfortable with it.”

Houpt was both a Garfield County commissioner (one of the most drilled counties in the state) and an oil and gas commissioner during the lengthy revision of the state’s drilling regulations in 2007 and 2008. Several critical issues were left unresolved then and have never been revisited since, said Houpt, whose Glenwood Springs-based Sustainable Solutions is a paid consultant on this issue for the Western Colorado Congress environmental group.

“It absolutely does not work to postpone putting together a rule that addresses all of the needs,” Houpt said. “We found that when the staff asked us to postpone the rulemaking on setbacks from homes, reclamation and riparian areas, with the notion that they would be addressed in three to four months, they never were addressed. It’s been years and those issues have never been addressed by the oil and gas commission.”

As for the Pavillion case, it falls just short of definitively concluding fracking contaminated groundwater. But the EPA’s ongoing investigation seems headed toward that finding, which will undermine a longstanding industry argument that the process occurs so far below the surface that it does not communicate with groundwater and drinking water supplies. EnCana, the Canadian company drilling in the Pavillion area, as well as numerous locations in Colorado, once again denied any responsibility.

Fracking is the high pressure injection of mostly sand and water (with a small percentage of toxic and often undisclosed chemicals) deep into oil and gas wells to fracture tight geological formations and free up more oil and gas. It is a process being used more and more in Colorado and closer and closer to major population centers and drinking water supplies.

The timing of the latest EPA report, which came out Thursday after Republicans had already started attacking the agency’s long-running probe of the Pavillion situation, makes it a hot topic ahead of Monday’s COGCC decision.

“Industry likes to say contamination from fracking is inconceivable,” Colorado Environmental Coalition energy organizer Charlie Montgomery said. “The EPA’s finding tells a different story, that contamination is a very real possibility and that communities today might be dealing with the fallout right now.

“While the announcement isn’t full confirmation of a missing link, the announcement suggests this is the time for maximum care and caution in how Colorado regulates fracking in our state.”

However, the Petroleum Association of Wyoming issued a statement blasting the EPA (pdf):

“The draft report coming out of the EPA [Thursday] is reckless,” said Bruce Hinchey, president of the Petroleum Association of Wyoming. “Let me be clear, the EPA’s findings indicate that there is no connection between oil and natural gas operations and impacts to domestic water wells.

“Unsubstantiated statements coming from the EPA [Thursday] stretch the data and cause unwarranted alarm and concern about a proven technology that allows our industry to safely extract oil and natural gas. The EPA’s announcement is irresponsible and leads us to call into question its motives.”

The EPA pointed out that the geology in the Pavillion area is unique and findings there might not be valid in other parts of the country where fracking is a concern. The agency published its preliminary report to garner public comment and seek independent scientific review.

Pavillion operator EnCana has been fined by the COGCC for past spills in Colorado, including in the West Divide Creek area of Garfield County, but state regulators said fracking was not to blame in that notorious case.

The COGCC on Monday listened to 11 hours of testimony on its draft fracking chemical disclosure rule. The commission convenes again on the issue at 8 a.m., Tuesday, at the Chancery Building (Suite 801), 1120 Lincoln Street, in Denver. There will be no additional public comment or evidence introduced.

Editor’s note: This post has been revised to reflect a Friday afternoon decision to switch the meeting from 8 a.m., Monday, to 8 a.m. Tuesday, in the COGCC hearing room in the Chancery Building. The parties needed more time to “attempt to resolve the remaining rulemaking issues.”