BEFORE THE OIL AND GAS CONSERVATION COMMISSION
THE STATE OF
IN THE MATTER OF ALLEGED VIOLATIONS OF ) CAUSE NO. 1V
THE RULES AND REGULATIONS OF )
BY ENCANA OIL & GAS (
REPORT OF THE COMMISSION
This cause came on for hearing before the Colorado Oil and Gas Conservation Commission (“COGCC”) on August 16 and 17, 2004 at 10:00 a.m. and 7:30 a.m. in the Birch Room at the Ramada Inn, 124 W. 6th Street, Glenwood Springs, Colorado, after giving Notice of Hearing as required by law, as to why the COGCC should find EnCana Oil & Gas (USA) Inc. in violation of certain of the COGCC’s rules and regulations (2 CCR-404-1, “Rules”) and why it should impose penalties for those violations pursuant to § 34-60-121, C.R.S., as amended.
1. On July 29, 2003, the COGCC Director approved an Application for Permit-to-Drill (“APD”), Form 2, for the Schwartz 2-15B Well (the “Schwartz 2-15B Well”) located in the SWĽ SEĽ of Section 2, Township 7 South, Range 92 West, 6th P.M. submitted by EnCana Oil & Gas (USA) Inc. (“EnCana”).
2. COGCC’s “Notice to All Operators Drilling Williams Fork Formation Wells in Garfield County - Surface Casing Depth and Modification of Leakoff Test Requirements” dated May 3, 2001 (“2001 Notice”) which amended a notice to operators dated September 22, 1998, specified drilling permit conditions applicable to all wells drilled in Garfield County to the Williams Fork Formation. The 2001 Notice was not attached to or referenced by EnCana’s copy of the APD for the Schwartz 2-15B Well, although it was on the COGCC’s copy. Among the permit conditions in the 2001 Notice was the requirement to report to the COGCC Northwest Colorado Area Engineer as soon as feasible within twenty-four (24) hours, all lost circulation zones and gas kicks, together with depths, mud volumes lost, mud weights before and after kicks, and procedures used to control kicks.
3. While drilling
the well on
4. While drilling the well on
6. Casing was run to total depth and the well
was cemented on
10. EnCana performed completion operations
12. Staff reviewed the Sundry Notice on
14. On April 2, 2004, as part of the investigation to determine the cause of the seep, COGCC staff obtained samples of the bradenhead gas from two (2) wells adjacent to the West Divide Creek seep (Schwartz 2-15B Well and Brown 11-2C Well), one (1) sample of Williams Fork Formation produced gas (Twin Creek 1-15B Well), and one (1) sample of gas seeping into West Divide Creek. EnCana personnel and Cordilleran Compliance Services (“Cordilleran”) were present during this investigation.
18. Isotopic and compositional analysis indicated the bradenhead gas from two (2) of the wells (Schwartz 2-15B Well and Brown 11-2C Well) and the produced gas (Twin Creek 1-15B Well) were very similar and were from the Williams Fork Formation. The bradenhead gas from one (1) of the wells (Morgan 12-14B Well) was not similar to the Williams Fork Formation. The isotopic values and composition of the gas seeping into West Divide Creek and into the Langegger lower pond also were very similar to the produced gas from the Twin Creek 1-15B Well and the bradenhead gas from the Schwartz 2-15B Well and the Brown 11-2C Well indicating that gas seeping into the West Divide Creek and into the Langegger lower pond was Williams Fork Formation gas.
19. Analysis of a water sample taken from West
Divide Creek on
21. At the direction of the COGCC staff, EnCana initiated a ground water investigation. As part of the investigation, EnCana installed nine (9) ground water monitoring wells between June 28 and July 9, 2004, and began a program of sampling and analysis of ground water from the wells.
23. After the gas from the seep in West Divide Creek was identified as Williams Fork Formation gas, EnCana promptly responded to the COGCC staff with a plan of action to address the environmental and safety concerns of nearby residents and the community. Among other things, the plan called for placing charcoal booms in West Divide Creek, implementing an air sparging system to enhance natural volatilization of benzene in the creek water, and supplying drinking water to nearby residents. In addition to implementing this plan, EnCana also voluntarily agreed to cease drilling and completion operations within a two (2) mile radius of the seep until new drilling and completion procedures can be developed to prevent any similar occurrence in the future.
25. The decrease in gas seepage corresponding to the remedial cementing of the Schwartz 2-15B Well indicates that the failure of the primary cementing of the Schwartz 2-15B Well was the most likely reason that seepage of Williams Fork Formation gas and the associated release of benzene into West Divide Creek and into the ground water of the shallow alluvium in the seep area occurred.
26. Impact to the surface and ground water by the
presence of benzene and methane indicate that Williams Fork Formation gas and
benzene are still present in the gas seep area and continue to be a threat to
the waters of the state; however, the amount of Williams Fork Formation gas and
the associated release of benzene appear to have decreased since April 5, 2004
when EnCana remedially cemented the Schwartz 2-15B Well. After
27. The COGCC staff reviewed the completion reports, bond logs and bradenhead pressures of all other wells within a two (2) mile radius of the seep area. No other well exhibited a top of cement low enough to allow pressure to build above the strength of the formation below the surface casing shoe. No other well exhibited bradenhead pressure high enough to exceed the strength of the formation below the surface casing shoe. No other well had been completed in a manner that would allow it to be the source of the seep. Neighboring operators’ wells were cemented into the surface casing or to surface and exhibited low or no bradenhead pressures.
28. EnCana is the owner and operator of all Williams Fork Formation gas wells underneath and adjacent to the West Divide Creek seep. As operator of the Schwartz 2-15B Well EnCana has accepted and continues to accept responsibility for monitoring and addressing the environmental and public health and safety effects of the release. The COGCC staff has required and continues to require testing, analyses, delineation, monitoring and reporting by EnCana to address the environmental and public health and safety effects of the release.
29. The COGCC staff hand-delivered a Notice of
Alleged Violation (“NOAV”) to EnCana on
30. The NOAV required EnCana to submit a Site Investigation and Remedial Workplan, Form 27 for COGCC staff approval, outlining monitoring and mitigation measures to be taken to ensure protection of public safety and to mitigate impacts to water resources, submit a letter detailing how the Schwartz 2-15B Well was drilled and completed, along with an explanation of what occurred that caused Williams Fork Formation gas, benzene, and other hydrocarbon compounds to seep into West Divide Creek and Williams Fork Formation gas to seep into a nearby pond on the Langegger property.
31. EnCana responded to the NOAV by letter dated
32. Rule 209. states that “Special precautions shall be taken in drilling and abandoning wells to guard against … the contamination of fresh water by objectionable water, oil, or gas. Before any oil or gas well is completed as a producer, all oil, gas and water strata above and below the producing horizon shall be sealed or separated in order to prevent the intermingling
of their contents.” EnCana’s failure to seal all gas and water strata above the producing horizon resulted in impacts to West Divide Creek and adjacent ground water by benzene. EnCana acknowledges that it should be found in violation of Rule 209.
APD approved for the Schwartz 2-15B Well required the production casing to be
cemented to surface. During the
production casing cementing procedure on
34. Rule 317.i. states that “…cement shall be pumped behind the production casing two hundred (200) feet above the top of the shallowest known producing horizon.” EnCana indicated the top of gas in the Schwartz 2-15B Well to be at approximately 4132’. EnCana’s completion report dated February 16, 2004 indicates that an onsite EnCana employee or contractor read the CBL to show top of cement at 4050’, with which the COGCC staff concurs, and which is less than 200 feet above the top of the shallowest known producing horizon. EnCana engineers interpreted the CBL to show good cement coverage up to 3500’, but nonetheless, EnCana acknowledges that it should be found in violation of Rule 317.i. for failure to pump cement 200 feet above the top of the shallowest known producing horizon.
36. The release of gas from the Schwartz 2-15B
Well occurred from the date of the
attempted cementing of production casing (February 9, 2004) until the remedial
cementing operation (
37. Rule 301. states that “Immediate notice shall
be given to the Director when public health or safety is in jeopardy. Notice shall also be given to the Director of
any other significant downhole problem or mechanical failure within ten (10)
days.” EnCana ran a CBL and a
temperature survey on
38. Rule 324A. states that “The operator shall take precautions to prevent significant adverse environmental impacts to air, water, soil, or biological resources to the extent necessary to protect public health, safety and welfare, by using cost-effective and technically feasible measures to protect environmental quality and to prevent the unauthorized discharge of oil, gas, E&P waste, chemical substances, trash, discarded equipment or other oil field waste.” The rule also states that “No operator, in the conduct of any oil or gas operation shall perform any act or practice which shall constitute a violation of the water quality standards or classifications established by the [WQCC]… for waters of the state….” Based on the benzene levels measured in West Divide Creek on April 2, 2004 which exceed the WQCC surface water standards established for benzene, EnCana acknowledges that it should be found in violation of Rule 324A.
39. Rule 910.a. and Table 910-1 specify the allowable concentrations for soil and ground water based on standards and classifications established by the WQCC. Based on the benzene levels measured in six (6) of the nine (9) ground water monitoring wells on July 9, 2004 which exceed the WQCC ground water standards established for benzene, EnCana acknowledges that it should be found in violation of Rule 910.a.
42. On July 14, 2004, an Entry of Appearance was filed by Erika Z. Enger, Attorney for EnCana, indicating EnCana’s intent to present testimony, arguments and exhibits in the enforcement proceeding.
47. On July 21, a prehearing conference was held with the parties to discuss procedural issues, submittal of documents and scheduling.
51. At the time of the hearing, Commissioner Klish recused himself from the proceedings as a voting Commissioner.
52. After comments provided by Mr. DeFord and an objection by Ms. Enger to participation in the violation phase, the Commission voted unanimously to accept the BOCC’s Motion for Intervention to allow the County to intervene in both the violation phase and the penalty phase of the hearing.
53. After comments provided by Mr. McAllister, an objection by Ms. Enger stating a lack of showing that the intervention is in the public interest, and a concern raised by Ms. Harmon, regarding the scope of participation, the Commission voted unanimously to accept the WCC/GVCA Motion for Intervention to allow WCC/GVCA to intervene in both the violation phase and the penalty phase of the hearing.
54. After discussion on EnCana’s Motion in Limine to exclude evidence regarding WCC/GVCA’s requested relief which it believes goes beyond the scope of the hearing, the Commission determined that rather than make a ruling at the beginning of the hearing, they would address these issues as they arise during the course of the hearing.
55. After opening statements were presented by the parties, COGCC staff witnesses Jaime Adkins, COGCC Northwest Engineer and Debbie Baldwin, COGCC Environmental Supervisor presented the stipulated recommended order, including supporting exhibits, to the Commission.
56. COGCC staff witness Scott Klarich, Colorado Department of Public Health and Environment Water Quality Control Division (“WQCD”) Enforcement Team Leader testified as to the Memoranda of Agreements between the WQCD, WQCC and the COGCC. He indicated his agency’s agreement with the actions taken in response to the gas seep by COGCC staff.
57. COGCC staff witness Greg Nagle, WQCD Ground Water Quality Coordinator testified as to the standards established by the WQCC and his agency’s agreement with the COGCC staff’s recommended order.
58. COGCC staff witness Mark Beeunas, a gas isotope expert, testified regarding interpretation of stable isotopes and compositional analysis collected from water wells and gas wells which corroborated COGCC staff’s interpretation of the source of the gas seeping into West Divide Creek.
59. COGCC staff witness Richard Moore, consulting geologist, testified that he had no changes to the data and conclusions presented in his expert report after his review of the other expert reports provided. He concluded that there was a strong likelihood that the West Divide Creek gas seep was caused by improper completion procedures at the Schwartz Well.
60. Ms. Enger indicated EnCana’s concurrence with the COGCC’s staff presentation. Mr. DeFord indicated the BOCC had no objections to the Commission accepting Finding Nos. 1 through 39 of the stipulated recommended order, although the BOCC objected to the number of days EnCana was found in violation of Rules 324A. and 207. Mr. McAllister presented a written objection to the stipulated recommended order.
61. After discussion, Ms. Harmon proposed that Finding No. 38 be amended to include both Rule 324A.a. and Rule 324A.b. This amendment was agreed to by the parties and the Commission.
62. Commissioner Ashby asked Mr. Adkins if he had reviewed the CBL run after the remedial cementing was performed. Mr. Adkins testified that the CBL showed a good cement job and that the bradenhead test showed no pressure. All exhibits presented, including the second CBL, were admitted.
63. After comments from BOCC and WCC/GVCA on the number of days of violation of Rules 324A. and 910.a., the Commission deliberated and voted unanimously to accept Finding Nos. 1 through 39 and previous Finding No. 41 (now Finding No. 64), including the revision to Finding No. 38.
64. EnCana should be found in violation of Rule
65. Having determined that violations existed, the Commission moved into the penalty phase of the hearing by having testimony presented first by WCC/GVCA witness Herman Lucero to accommodate his schedule. Mr. Lucero testified about the sampling process he utilized in the West Divide Creek area, the results from his water sampling and his observations in the area.
66. Mr. Adkins described the penalty and remedial action proposed in the stipulated recommended order, previous Finding Nos. 40, and 42 through 45 (now Finding Nos. 67 through 71 below).
67. Rule 523. specifies a base fine of One Thousand dollars ($1000) per day for violations of Rules 209., 301., 317.i., 324A., 327., and 910. No base fine is listed in Rule 523.a.(4) for violation of the Permit Conditions or §34-60-107, C.R.S. Fines for these two (2) violations (i.e., Permit Conditions and §34-60-107, C.R.S.) are limited to One Thousand dollars ($1,000) per day in accordance with Rule 523.a.(1).
68. Rule 523.a.(1) specifies that “…no fine for any single violation shall exceed One Thousand dollars ($1,000) per day.” EnCana does not admit liability for causing significant waste or significant adverse impact on public health, safety or welfare. However, it agrees to pay the following fines as adjusted pursuant to Finding No. 69 in order to resolve this matter without the necessity of an extended contested hearing:
Item Violated Number of Violation/Days Total Fine/Rule
Rule 209. 55 $55,000.00
Rule 301. Bradenhead 43 $43,000.00
Rule 301. Cement 36 $36,000.00
Rule 317.i. 55 $55,000.00
Rule 324A. 55 $55,000.00
Rule 327. 55 $55,000.00
Rule 910.a. 55 $55,000.00
Permit Conditions 55 $55,000.00
§34-60-107, C.R.S. 55 $55,000.00
Total Maximum Allowable Fine Amount $464,000.00
69. The following mitigating factors were considered in reducing the maximum allowable fine amount by ten percent (10%) per mitigating factor, for a total of twenty percent (20%) fine reduction: Rule 523.d.(2), the violator demonstrated prompt, effective and prudent response to the violation, including assistance to any impacted parties, and Rule 523.d.(3). the violator cooperated with the Commission with respect to the violation. These mitigating factors were applied to actions taken by EnCana once the gas seep was discovered.
70. A monetary penalty of Three Hundred
Seventy-one Thousand, Two Hundred dollars ($371,200.00) should be assessed against EnCana, in accordance with Rule 523.a. and Rule 523.d., for the above-described
violations of the Rules, Permit Conditions and the Oil and Gas Conservation
Act. The fine should be suspended until
the Commission’s next regularly scheduled hearing on
71. EnCana should proceed under the Site
Investigation and Remediation Workplan, Form 27 approved by COGCC staff on
72. EnCana witness Kimberley Kaal, Senior Geologist for Cordilleran Compliance Services, testified as to the environmental sampling and monitoring conducted at the West Divide Creek gas seep area to date and the plan for future studies.
73. EnCana witness Karmen King, Program Administrator,
Natural Resource Management Institute,
74. BOCC witness Doug Dennison, Garfield County Oil & Gas Auditor testified about the photographs he had taken at the West Divide Creek gas seep and its impact on public health, safety and the environment of Garfield County citizens, and on the number of Notices of Alleged Violation issued by the COGCC staff to EnCana in the past year.
75. BOCC witness Jeffery Thyne, Research Professor in the Department of Geology and Geological Engineering at the Colorado School of Mines testified about his independent review of the data available at the COGCC office and his belief that the gas seep was caused by incomplete cementation during completion of the Schwartz well, that the longer term impacts of contamination have not been evaluated, nor the extent of the contamination been determined, and that Garfield County should be involved in the review of additional data gathered.
76. WCC/GVCA witness Pepe Langegger testified about his personal experience with the gas seep on his property and potential impacts affecting his elk herd population, and his belief that there is not enough oversight of drilling.
77. WCC/GVCA witness Nancy Jacobsen testified about living in proximity to four (4) gas wells, the need to hold EnCana accountable for the gas seep, and her belief that EnCana should be required to comply with the relief requested in the WCC/GVCA intervention.
78. WCC/GVCA witness Bill Griffin, spokesperson for the neighborhood association, testified that he wants the moratorium on drilling and completion to be extended until a complete study can be performed. He testified that it may be necessary to curtail drilling completely throughout the area, and that COGCC staff should inspect all EnCana wells prior to completion.
79. WCC/GVCA witness Matt Sura, Director of Western Colorado Congress testified about his experience working with oil and gas issues over the past two (2) years, his belief that additional monitoring and mitigation of the gas seep at West Divide Creek are needed prior to lifting the moratorium on drilling, and his preference for a joint effort with EnCana to determine potential public projects in lieu of a fine.
80. A sworn statement was made pursuant to Rule 510. by Hermann Stauffer who testified to express his concern about preserving the land and water.
81. A sworn statement was made pursuant to Rule 510. by Ken Wonstolen, General Counsel for the Colorado Oil and Gas Association who testified that he believes Rule 209. and Rule 324A. address the same issue. He testified that he had concern over the penalty calculations but would not bring it up because of the stipulated recommended order.
82. A sworn statement was made pursuant to Rule 510. by Sher Long, Community Relations Consultant for EnCana who testified that she lives on the Deitrich property and feels comfortable using the water from the well and living in the area near the gas seep.
83. A sworn statement was made pursuant to Rule 510. by Matt Sura, Director of Western Colorado Congress to describe why there were so few Rule 510. statements made at the hearing, indicating that citizens for the most part could only attend one day of the hearing and the time for making Rule 510. statements was not determined well in advance of the hearing.
84. Lisa Bracken and her father Robert Eicher had wished to make a sworn statement pursuant to Rule 510. but had to leave early. They asked Ms. Harmon to relay to the Commission their approval with the process occurring over the two (2) days of hearing, and their concurrence with the direction the hearing seemed to be headed.
85. EnCana response witness Anthony Gorody, Consulting Geologist, testified on his analysis of gas samples gathered from the West Divide Creek seep, from surface water, from the Schwartz Wells and from other wells in the vicinity of the seep. He testified about methods for identifying the source of gas seeping into West Divide Creek, the localized impact of the seep on aquifers, the influence of fractures in the a1rea on the extent and direction of the seep, and EnCana’s plan to conduct a nine (9) square mile study to detect methane at the surface, including the corridor between the Schwartz 2-15B Well and West Divide Creek.
86. EnCana response witness Eric Marsh, Vice President-Southern Rockies, testified about his company’s corporate philosophy, new procedures put in place regarding cementing practices and bradenhead testing, and the plan to provide more oversight from field personnel, the amount of money EnCana has spent to date on investigating, mitigating, and monitoring the seep, and EnCana’s commitment to continue following the program required by the COGCC staff until it is complete.
NOW, THEREFORE, IT IS ORDERED, that EnCana Oil & Gas (USA) Inc. shall be found in violation of the Permit Conditions requiring the cementing of production casing to the surface on the Schwartz 2-15B Well located in the SWĽ SEĽ of Section 2, Township 7 South, Range 92 West, 6th P.M.
IT IS FURTHER ORDERED, that EnCana Oil & Gas (USA) Inc. shall be found in violation of Rule 209. failure to prevent the contamination of fresh water by gas, Rule 301., failure to notify the Director when public health or safety is in jeopardy and failure to notify the Director of significant downhole problems or mechanical failure, Rule 317.i., failure to pump cement 200’ above the top of the shallowest producing horizon, Rule 324A., impacts to water quality, Rule 327., loss of well control and allowing an underground blowout of gas, and Rule 910.a., failure to meet ground water standards in Table 910-1.
IT IS FURTHER ORDERED, that EnCana Oil & Gas (USA) Inc. shall be found in violation of §34-60-107, C.R.S., waste due to the loss of gas resources.
IT IS FURTHER ORDERED, that EnCana Oil & Gas (USA) Inc. shall be found to be responsible for the release of Williams Fork Formation gas, benzene, and other hydrocarbon compounds from the Schwartz 2-15B Well resulting in the subsequent impacts to the surface and ground waters of the state and for monitoring and addressing the environmental and public health and safety effects of the release.
IT IS FURTHER ORDERED, that EnCana Oil & Gas (USA) Inc. shall be assessed a fine of Three Hundred Seventy One Thousand Two Hundred dollars ($371,200.00) which fine shall be suspended until the Commission’s next regularly scheduled hearing on September 20, 2004 to give the parties an opportunity to propose a public project in lieu of the fine. The Commission will hear and consider the proposal of the public project and may approve, modify, or condition the proposal or reinstate the fine.
IT IS FURTHER ORDERED, that EnCana Oil & Gas (USA) Inc. shall proceed under the Site Investigation and Remediation Workplan, Form 27 approved by COGCC staff on May 13, 2004. In addition, Encana shall proceed under the Notice to All Operators Drilling Wells to the Mesaverde Group or Deeper in the Mamm Creek Field, Garfield County implemented and effective July 23, 2004.
IT IS FURTHER ORDERED, that EnCana Oil & Gas (USA) Inc. shall submit to the COGCC staff for approval a Site Investigation and Remediation Workplan, Form 27, to delineate the extent of contamination to ground water and to continue the investigation, remediation, and monitoring of ground water to meet the required allowable concentrations.
IT IS FURTHER ORDERED, that the COGCC staff shall maintain the moratorium on drilling and completion operations within a two (2) mile radius of the seep at West Divide Creek until the COGCC staff evaluates (1) the effectiveness of the Notice to All Operators Drilling Wells to the Mesaverde Group or Deeper in the Mamm Creek Field, Garfield County, effective July 23, 2004 (“notice”), and (2) EnCana’s compliance with any applicable Site Investigation and Remediation Workplan, Form 27, as approved or amended by the COGCC staff (“investigation and remediation requirements”), related to the gas seep in the area of West Divide Creek. After the COGCC staff evaluates the effectiveness of the notice and EnCana’s compliance with investigation and remediation requirements, it shall make any modifications it deems necessary and lift the moratorium when, in the COGCC staff’s determination, the appropriate safety precautions are set forth in the notice and EnCana has complied with all investigation and remediation requirements related to the gas seep in the area of West Divide Creek.
IT IS FURTHER ORDERED, that the provisions contained in the above order shall become effective forthwith.
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.
this day of September, 2004, as of
OIL AND GAS CONSERVATION COMMISSION
Patricia C. Beaver, Secretary