Special Town Board Work Session: November 12, 201814 min read
Tonight, the Town Board convened for a special session to discuss an application from Highlands Natural Resources Corporation (HNR) to build a multi-well oil and gas facility at the intersection of Highway 128 and McCaslin Blvd. A fact sheet on the proposal can be found here.
While I typically watch Town Board meetings 2-5 times each and do a lot of supplemental research, tonight, I wanted to post my notes as quickly as possible even if they are not as thorough as usual. HNR wants to start drilling only five weeks from now, on December 17, so time is of the essence in organizing against this proposal. Please email me with any corrections to my notes and I will do my best to update as quickly as possible.
The meeting was absolutely packed – several hundred people were in attendance, and many more literally couldn’t get into the building. I understand that our Senator Elect Tammy Story was outside and couldn’t get in because of the sheer number of people present. About halfway through the meeting, several local news crews also arrived to film the proceedings.
Mayor Folsom opened the meeting with a statement about the application, and noted that everyone on the Town Board as well as all incoming Board members are against this proposal. At that, the entire room cheered.
Presentation from Town Manager Magley
Town Manager Matt Magley opened with a visual map of the area – see image at right. The map that Manager Magley showed was more detailed, and included a blue mark indicating the Town of Superior’s own 500,000 gallon water tank, which is only 308 feet away from the proposed wells.
Manager Magley said he met with the Colorado Oil & Gas Conservation Commission (COGCC) to discuss the application process. COGCC has already opened public comment on this application, but Manager Magley had the public comment period extended to December 5. I would urge you to go comment here as soon as you can, and encourage your friends and neighbors to do so – this is one of the most effective ways to stop this proposal. (One important note: it may take 24 hours for comments to show up, so don’t be alarmed if they don’t appear immediately.)
Tim Gablehouse is our expert attorney on Rocky Flats, and we will be leveraging his work in our response, since the proposed drilling would extend from this site down through Rocky Flats. We have also contracted Matt Sura, an expert attorney in oil & gas, to put together our formal legal response – and he was in attendance to present next.
Presentation from Oil & Gas Attorney Matt Sura
Matt Sura is one of only a few oil & gas attorneys in the State of Colorado who does not work for the oil & gas industry. He put together a presentation outlining the impacts of the oil & gas industry on other towns, an overview of Superior’s regulations, and next steps for how we can move forward. Attorney Sura has said he would email me a copy of the presentation, which I will post as soon as I have it.
*Update: Attorney Sura sent me the presentation this morning; you can download it here.*
Today, we have about 53,000 oil and gas wells in the state of Colorado. As evidenced in some of those municipalities, noise is going to be a major concern. If this proposal goes forward, we would expect sound walls that block not only the noise but also the views. When Trustee Kevin Ryan later asked about noise regulations, Attorney Sura said that they would allow 80 decibels during the day and 70 decibels at night – which is quite loud.
Water quality is a big concern – spills happen regularly and can impact municipalities. Groundwater methane can also happen through oil & gas development.
By state law, COGCC has the authority over drilling sites. Their minimum setbacks are 1000 feet from schools and hospitals, and 500 feet from homes (not the edge of the property, but the building itself, to the well itself, not the pad).
Many municipal governments have been sued by oil & gas companies, and the State Supreme Court has said that municipalities cannot ban oil & gas development. However, there is a lot that municipalities can do with land use regulations to put forth protections – which have not yet been challenged by Colorado courts.
On the map Attorney Sura showed (I will post a copy once I get it), he showed all the potential locations for which HNR originally applied for permits; two of these have since been withdrawn. The three well locations that remain are on parcels 1, 4, and 9 on the map (top right, top left, and bottom left, respectively, of the large rectangle on the map I am showing at right). “Our” well (ugh) would run two miles south as a “kick out”, then two miles out under Rocky Flats. The well on parcel 9 would go two miles south and then five miles out under Rocky Flats – which is not possible with today’s technology. This may indicate that these proposals are not yet final.
The typical process for state approval would be first to get approval for a drilling and spacing unit. Then, form 2A (the location assessment) shows what the proposed drilling would do to the surface – this is what has already been filed, here. Next would be Form 2: an application for permit to drill. Most comments on Form 2 would need to be geological in nature, and so not as easy for public refutation. Typically, Form 2A would get 20 days for public comment, but this has been extended to 30 days (as noted by Manager Magley earlier).
The local government or surface owner can also request a hearing on the location. Potential for plutonium in the area being fracked would be grounds for a hearing. I later asked if HNR’s lack of financial stability (they are highly leveraged, and suffered losses of $5M and $3.5M the last two years) would also be appropriate for that hearing, and Attorney Sura said yes, it would show their inability to correct any problems that might occur.
We have all been trying to understand why Century Link would agree to allow drilling on their land, and Attorney Sura explained that they don’t really have a choice. Per law, because HNR owns the mineral rights, those supersede the surface rights, and so HNR could simply create a measly $3000 bond to buy the surface rights from the current owner (Century Link), without their consent, in order to access their minerals.
Finally, Attorney Sura said that Superior has six different criteria for land use, none of which this application meets.
Presentation from Colorado Oil & Gas Association Representative Jason Grubb
Jason Grubb of the Colorado Oil & Gas Association (COGA) spoke next. COGA represents the entire value chain of oil & gas, from big companies like Noble Energy to small mom-and-pop accounting shops that specialize in this area. Representative Grubb would like to offer COGA as a resource for the elected officials and the community. He said that the regulations in Colorado are the strictest of anywhere in the country.
Presentation from Broomfield Mayor Matt Ahrens
Broomfield Mayor Randy Ahrens spoke next. He noted that Broomfield has a right of way in this area, but does not actually own the land. However, Broomfield has been dealing with this issue for years, so he came tonight to share his experiences.
The original proposal for Broomfield was 179 wells, and they significantly scaled those back. Broomfield created “best management practices” for drilling that far exceeded the state’s regulations. Broomfield’s setbacks are 1300 feet from schools (vs 1000). Broomfield required that all gas and production go through pipelines, buried 5 feet deep (not 3 feet per state regulations). Broomfield also is going to be implementing 24/7 air monitoring, to help them address issues immediately. Broomfield has also created an emergency preparedness plan. Broomfield is looking into the vibrations / humming, as this is currently not regulated.
Mayor Ahrens said that no one in Broomfield asked for oil & gas to come in, but they did the best they could when they did. He said that when the Broomfield City Council heard about this proposal to drill under Rocky Flats, they were appalled. Although the majority of his comments seemed to suggest that we should focus on mitigation rather than trying to stop the drilling, Mayor Ahrens said he has spoken with the Broomfield City Council and they will stand with Superior.
In response to Mayor Ahrens’ points around what Broomfield did to mitigate, I asked whether Broomfield was responsible for the cost of these protections (24/7 air monitoring and emergency support options), or if the oil & gas companies paid all of it? Mayor Ahrens said they were able to negotiate some of these mitigation costs, so that the oil & gas companies paid for most of it, and implied that the rest was made up for in tax revenue.
Manager Magley said that Town Staff will work with the COGCC to determine whether mitigation needs to take place, or whether the application will be outright denied. It is a 40 day process that started when the application was submitted. Trustee Kevin Ryan asked about a timeline for the draft of these comments, and Manager Magley said he would like to have a draft by December 1.
Trustee Ryan asked Mayor Ahrens about Broomfield’s right of way on the property, and asked that Mayor Ahrens and the Broomfield City Council do everything in their power to wield that right of way / any potential limitations around it to help block the application.
Trustee Mark Lacis asked whether the Department of Energy would be making comments related to the application, since they are responsible for Rocky Flats; Manager Magley said they will make comments on the spacing application. Trustee Lacis also asked Attorney Sura whether Highlands knows they are dealing with a Superfund site. Attorney Sura said he believes their position will be that they are drilling 8000 feet below the surface, while the contamination is 16-30 feet below the surface.
Mayor Ahrens said that in 2012/2013, Broomfield tried to ban oil & gas. It did not work, but they left a proviso that a local government agency could take a short time period (~6 months) to impose a moratorium on oil & gas activities. On a lighter note, a resident in the audience chimed in that perhaps this would be enough time for us to build a school closer to the site (thereby blocking it, per setback regulations). Trustee Lacis asked Attorney Sura if we were able to purchase the land for Open Space and designate it as such, whether that would affect the mineral rights / ability for an oil & gas company to perform extraction. Attorney Sura said that would certainly be something to explore.
Trustee Elect Ken Lish asked COGA Representative Grubb whether he was aware of any previous applications to drill under a Superfund site; Representative Grubb said he was not aware of any.
Trustee Pennington asked whether it is possible that Century Link doesn’t know what’s happening on their land. Attorney Sura said it’s possible no one at Century Link was notified, particularly given the huge rush to get these applications in just before the election. Given that Level 3 was recently acquired, it’s also possible that the notification went to the wrong owner. Trustee Pennington said that she hoped to see a meeting between Town Staff and Century Link ASAP.
Trustee Pennington also pointed out that Superior is part of the Rocky Mountain Flats Stewardship Council, which Broomfield is a part of, and that she hopes Mayor Ahrens will support a ban on drilling under Rocky Flats holistically – particularly given that this is planned under the central operating unit.
With regard to Town revenue from the proposed drilling, Mayor Ahrens said that in Broomfield, with 81 wells, they receive $451M per year. However, this is based on mill levies, so it’s not directly applicable to Superior. Trustee Pennington asked Mayor Ahrens about infrastructure impacts, particularly given that this is on the corner of two heavily trafficked roads. Mayor Ahrens said that Superior could require the assets to be removed via pipeline rather than trucks.
Attorney Sura noted that only the local government or the land owner can request a hearing – even those living immediately adjacent to drilling don’t have a right to require a hearing.
Finally, Trustee Lacis asked about the best ways the public can get engaged and be heard. Attorney Sura said that he would recommend residents don’t focus on the Town of Superior, since the Board is already working hard to stop this. Instead, he noted that we have a newly elected Governor who will be responsible for appointing representatives to the COGGC – so that would be a good place to apply pressure, in addition to posting public comments to the COGGC site.
*Just reiterating that I have not captured all public comments; I have primarily focused on those talking about new ways to fight this that have not previously been discussed.*
Resident Melissa Thornton suggested we start a citizen initiative (see here for details on what that means in Colorado) via petition, pointing out that we clearly have significant interest based on the turnout tonight.
Rock Creek HOA Treasurer Brian Shaltakoff noted that given HNR’s limited financial means, extensive litigation might help exhaust their ability to fight. Hillary Kellogg concurred, saying that if we could put onerous requirements on HNR, the project might no longer be financially viable.
Resident Phyllis Reiner suggested going to the voters for a health and safety tax to both hurt the financial viability of the project, and also cover the Town / residents if something unforeseen happened.
Michelle Ramon Gabrieloff-Parrish, the founder of Candelas Glows, noted that she is organizing a meeting this Thursday at 5:30pm at College Hill Public Library in Westminster, specifically to discuss this application. More details on that meeting here.
Bob Herman, a chemical engineer, would like to see samples of HNR’s fracking fluids.
Resident Leah Rowan commented that she thinks we may not be thinking broadly enough about this. She says if they were going to dig under Chernobyl, all of Europe would be concerned – so perhaps we need to think more strategically about this. It’s not about what’s on top of the soil at the corner of 128 and McCaslin; it’s about the broader impact of drilling under a Superfund site and what that could mean for all of Colorado and the United States. I completely agree – this isn’t just about looking at ugly drilling facilities, or even the noise or air pollution. This is extremely dangerous to be disturbing the area around Rocky Flats.
Resident Brian Lavash pointed out that HNR is a UK-based company – while maybe we don’t have due process here, there may be an avenue to pursue this legally in the UK.
Resident David Hill asked if there is anyone making sure all the paperwork is in order, and Mayor Clint Folsom assured him that this was on our list.
Resident Jeff Wingert said that buried deep in the application, it was noted that HNR will need to adjust the grading. When that fill is pushed to the Northeast, it will be unstable right next to McCaslin Boulevard – which is another potential hazard.
Resident Mike Martino asked the officials to consider out-of-the-box approaches: a statewide debate, a national debate, partnerships with renewable energy companies, etc.
Resident Steve Irkinis wanted to know if we could build an observatory or wildlife facility on that hill so that it would count as school property. This echos the comment earlier that got a chuckle, but it’s not at all a bad idea. However, today, setbacks are only from the main building of a school, not any outposts / extra facilities. That could change.
Resident Libby Felts suggested working with Century Link to put a conservation easement on the land, which would hopefully stop surface development.
After public comment, Trustee Pennington asked about next steps to move forward. Manager Magley said that first, the Board needs to decide whether to enact the moratorium. Next, he needs to coordinate with various regulatory bodies and elected officials at the state / federal level. I suggested that we establish citizen task forces to begin tackling the various areas for exploration: legal recourse, financial analysis, scientific arguments, and media outreach, to name a few. However, I think it’s important that these task forces are spearheaded by the town, so we don’t have duplication of effort and an uncoordinated response. Trustee Pennington also echoed my concern that we need to have strong communication with residents of where we are in the process and how they can help.
The meeting concluded around 8:30pm.