Energy in the West

Gas Spills on Private Property: Are some landowners left out of the loop?

March 4, 2014
Gas Spills on Private Property: Are some landowners left out of the loop? Energy companies reported some 90 spills of hydrocarbons and oil and gas byproducts in Garfield County last year. Many of those spills took place on private property, where residents leased their land to drilling companies. But a KDNK news investigation reveals some of those residents were unaware that spills had taken place on their property—and that state regulators aren't checking to make sure landowners are properly informed of spills. KDNK's Ed Williams reports.

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Robert Ramos lives with his wife Stella on a scenic patch of land overlooking the rugged desert mesas of Western Garfield County. It was a quiet, remote part of the state when they bought the property 32 years ago, but the natural gas boom of the past few decades has changed that—now the Ramos property is in the middle of one of Colorado's most in-demand drilling hubs, and hundreds of well pads and gas workers dot the landscape.

Ten years ago, like many other landowners drawn by the allure of oil and gas royalties, the Ramos family decided to lease part of their land to Noble Energy, which has since been drilling for gas on their property.

Late last year, Noble applied for a permit to fill in an old pit on the Ramos property, that the company had previously used to store produced water—a chemical-laden byproduct of fracking. State rules require the approval of the Colorado Oil and Gas Conservation Commission, or COGCC, before an oil and gas facility can be closed. Before granting Noble permission to fill in the old pit, the local COGCC supervisor ordered a round of soil testing to make sure no chemicals had seeped into the ground.

When the results came back from the lab, they showed the toxic chemicals arsenic and benzene were present in the dirt at levels above the legal health limit. According to COGCC records, the contamination had likely seeped out of the pit in 2009.

"We discovered some soil contamination," said Noble spokeswoman Paula Beasely. "And so the district manager let the landowner know on January 7 that the company had discovered soil contamination, then we met with him on February 4 to let him know how we were going to remediate the area by excavating and removing the soil."

The spill report Noble filed with the COGCC said just that—that eight days after discovering benzene and arsenic in the soil, the company informed Ramos of the spill, the investigation into the contamination, and the plans to clean up the toxic dirt (state rules require landowner notification within 24 hours).

But Robert Ramos has a very different recollection of events. He says he was never notified of a chemical spill on his property, and was completely unaware that there was any contamination on his land until KDNK contacted him for this story. He also says the company did not meet with him about cleaning up the spill, but rather that he learned of the remediation plans only when he himself went to Noble's offices to confront their regional representative after KDNK gave him copies of the spill reports.

"I went in to talk to him, and he was sort of surprised that I found this out," Ramos said. "The only thing they told me is that they were going to be doing some digging, but I didn't know that there was a spill there. Now I'm finding this out from someone else."

"These people do a spill and they don't tell you...I could get sick," he said.

An unenforceable rule?

Under Colorado law, any time an oil and gas operator spills more than 209 gallons of oil or drilling byproducts into the environment, they are required to submit a form to the COGCC detailing the specifics on the spill—and in cases where the spill happened on private property, companies are required to notify the landowner and specify that they did so on the spill report.

Jim Milne is the Environmental Manager for the COGCC. His job includes overseeing spill reports and remediations of oil and gas spills in the state.

"Operators are required to notify landowners of spills within 24 hours," Milne said. "In this case, if [Noble] did not notify Mr. Ramos and told us that they did on their form, then that would be a violation for us."

But while the laws on the books require landowners to be notified, enforcing those laws is difficult for regulators to do. That's because of a COGCC policy allowing companies to withhold the names of landowners on their spill reports.

Environmental Manager Jim Milne says the agency doesn't have a way to independently contact landowners after a spill report is filed.

"We don't have their phone numbers to tell you the truth," he said. "The operator's out there, they did the mineral lease, they know the people in the area. For us to track down all the surface owners would be a pretty big effort for us, whereas the operators already have that information. But we're not maintaining any kind of a list of landowners anywhere."

So when companies withhold the name of the landowner on their spill report to the state, they're effectively keeping the identity of the person they're required to inform secret—both from the public, and from the regulators.

And according to a KDNK analysis of COGCC data, that's what's happening almost across the board.

Out of the more than 120 spill reports filed from Garfield County since last year, only four listed the name of the landowner, one of those being Noble's spill on the Ramos property. The exception is when the landowner was another gas company.

We don't know how many spills during that time took place on private residential property, because that information isn't included in the spill reports. Still, KDNK was able to track down a handful of other Garfield County landowners who companies said they contacted but whose names were withheld on spill reports, and found several other instances in which the surface owner said he was unaware of spills that had taken place on his property.

COGCC Environmental Manager Jim Milne says the state is aggressive with following up on violations of rules on spills, especially when a landowner notifies them of a problem, and many of the agency's investigations are indeed kicked off by landowner complaints. Milne says the COGCC relies on a statewide complaint hotline to get that information from landowners. But that's' something that would be hard for landowners like Robert Ramos, who don't have obvious signs of problems on their property.

"If Mr. Ramos felt he wasn't notified, he had the ability to call us and we would have followed up on that," Milne said.

Out of reach of public records laws

Steve Zansberg, a Denver attorney who advocates for access to public records, and who negotiated the language in parts of Colorado's open records laws, has a different take.

"We're going to rely upon private landowners to let [the COGCC] know that they haven't been notified? How would they do that?" Zansberg said.

According to Zansberg, since it's the oil and gas companies who have the information on landowners—not the state—open records laws don't apply. That puts the information out of reach not just for state regulators, but also for reporters, lawyers or others interested in verifying a landowner was notified of a chemical spill on their property.

"So if the government has this information, it must provide it to you unless some exemption applies. Here the government is saying we simply don't have this information, and we don't feel a need to require it," Zansberg said.

Whether or not requiring that information would shine more light on the issue of compliance with landowner notification rules is an open question. But one thing seems clear—if companies are at times not informing landowners of spills, they're rarely caught.

A KDNK review of over 1,000 statewide violation records covering more than five years showed only one case in which a company was possibly cited for falsely stating that a landowner was notified of a spill, and that case could not be verified because of gaps in the COGCC's records.

Back at the Ramos property, backhoes and tractors are busy churning up the contaminated soil and carting it off to a waste disposal site. Robert Ramos says he's glad Noble Energy is cleaning up the contamination, but he says that if the company hadn't listed his name on the spill report, prompting a phone call from a reporter, he'd still be oblivious to the chemical contamination that sat on his property for over four years.

"If you hadn't told me, I still wouldn't know," Ramos said. "They would come here and say they're doing some work but probably wouldn't tell me that they spilled. They're going to have to do right by me."