BEFORE THE OIL AND GAS CONSERVATION COMMISSION
OF THE STATE OF COLORADO
IN THE MATTER OF THE PROMULGATION ) CAUSE NO. 1
AND ESTABLISHMENT OF FIELD RULES TO )
GOVERN OPERATIONS IN KIT CARSON ) ORDER NO. 1-160
COUNTY, COLORADO )
REPORT OF THE COMMISSION
This cause came on for hearing before the Commission at 9:00 a.m. on October 21, 2010, at the West Garfield Campus, Colorado Mountain College, 3695 Airport Road, Rifle, Colorado, on the application of the County of Kit Carson for an order granting a variance from Rule 804, Visual Impact Mitigation, to exempt all operators within the county from painting production facilities, which are observable from any public highway, with uniform, non-contrasting, non-reflective color tones and with colors matched to but slightly darker than the surrounding landscape by September 1, 2010.
The Commission finds as follows:
1. The County of Kit Carson (“County”), as applicant herein, is an interested party in the subject matter of the above-referenced hearing.
2. Due notice of the time, place and purpose of the hearing has been given in all respects as required by law.
3. The Commission has jurisdiction over the subject matter embraced in said notice and the parties interested therein, and jurisdiction to promulgate the hereinafter prescribed order.
4. Rule 804. of the Oil and Gas Conservation Commission requires production facilities, regardless of construction date, that are observable from any public highway to be painted with uniform, non-contrasting, non-reflective color tones, and with colors matched to but slightly darker than the surrounding landscape by September 1, 2010. Further, Rule 801. provides that any Colorado county, home rule or statutory city, town, territorial charter or city and county may, by application to the Commission, seek a determination that any rules and regulations of the 800-Series should not apply to oil and gas activities occurring within its boundaries, or any part thereof. Such determination must be based upon a showing by any Colorado county, home rule or statutory city, town, territorial charter or city and county that, because of conditions existing therein, the enforcement of the rule and regulation is not necessary within the relevant boundaries for the protection of public health, safety and welfare.
5. Rule 503.b.(5) provides that any local government within whose jurisdiction the affected operation is located may seek a variance from the Commission.
6. On August 19, 2010, the County filed a written request, by its attorney, for a Commission hearing to seek an exemption from Rule 804. for all unincorporated lands within its boundaries. The County alleges that the enforcement of Rule 804 is not necessary within the boundaries of the County for the protection of public health, safety and welfare.
7. Production facilities associated with oil and gas operations are located within the County’s boundaries in the State of Colorado.
8. The County request is made pursuant to, and consistent with authority granted in Rule 801.
9. At the hearing, County Attorney, Wade Gateley, appeared on behalf of the County to explain the basis of the County’s request as follows:
a. Oil and gas production facilities are not located where they will distract drivers on public highways.
b. The County, particularly in those areas where the affected oil and gas facilities are located, is not densely populated. So, aesthetics of the tanks and other production facilities are not a significant concern.
c. The facilities are remotely located on dirt roads that have very little traffic, and thus there is very little visual impact.
10. At the hearing, Mr. Gateley further stated that a requirement for maintenance painting would not be a problem, as long as some flexibility was maintained for the fact that galvanized steel is difficult to paint.
11. The Commission elects to defer to the judgment of locally elected officials in this case, in what it considers to be a land use matter.
NOW, THEREFORE IT IS ORDERED, that the relief requested by the County is granted as established by the terms of this Order.
IT IS FURTHER ORDERED, that all lands within Kit Carson County are declared to be exempt from Rule 804, as that rule exists as of this date.
IT IS FURTHER ORDERED, that the paint on any oilfield equipment, including tank batteries, shall be kept in good condition and subject to regular, effective maintenance.
IT IS FURTHER ORDERED, that the provisions contained in the above orders shall become effective immediately.
IT IS FURTHER ORDERED, that the Commission expressly reserves its right, after notice and hearing, to alter, amend or repeal any and/or all of the above orders.
IT IS FURTHER ORDERED, that under the State Administrative Procedure Act, the Commission considers this Order to be final agency action for purposes of judicial review within thirty (30) days after the date this Order is mailed by the Commission.
IT IS FURTHER ORDERED, that an application for reconsideration by the Commission of this Order is not required prior to the filing for judicial review.
ENTERED this day of November 2010, effective October 21, 2010.
OIL AND GAS CONSERVATION COMMISSION
OF THE STATE OF COLORADO
Carol Harmon, Secretary
Dated at Suite 801
1120 Lincoln Street
Denver, Colorado 80203
November 22, 2010