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All's Not Well

Bon Carbo residents are still fighting for their right to clean water.

The state health department has proposed a settlement in a bitter dispute over water pollution from natural-gas wells in Las Animas County, but federal environmental officials say Colorado has gone easy on the polluter, and at least one person wonders if the administration of Governor Bill Owens -- who worked for years as a lobbyist for oil and gas companies -- will ever crack down on polluters in that industry.

The case stems from a lawsuit that residents of a rural valley west of Trinidad filed against Denver-based Evergreen Resources Incorporated in 1998 (Look Out Below!" November 12, 1998). The suit alleged that Evergeen had violated the federal Clean Water Act by operating dozens of wells without discharge permits from the state, and that several of those wells produced wastewater contaminated with potentially dangerous chemicals like benzene. Since residents of the area get their drinking water from shallow aquifers, they feared Evergreen might be contaminating their water supply.

Under the clean water law, if government agencies fail to take action against polluters, the public can file suit demanding enforcement of the regulations. The Colorado Department of Public Health and Environment, which is charged with enforcing clean water laws in Colorado, didn't get around to inspecting Evergreen's wells until it was notified that a lawsuit was imminent.

Under the proposed settlement, unveiled in January, Evergreen agreed to construct a treatment system that would make drinking water available to dozens of residents who live around the tiny town of Bon Carbo. The firm agreed to construct that system in lieu of paying $173,720 in fines, which the department had assessed after finding that Evergreen had violated environmental laws at 37 well sites.

The group that filed the lawsuit, Southern Colorado Citizens United for a Responsible Environment (CURE), says that the health department's findings show that their complaint against Evergreen was justified. "We were vindicated," says Penny Bieber, a member of the group. "The state penalized Evergreen for every action we brought against them."

However, the group still isn't sure the proposed treatment plant will take care of the problem, since there are unanswered questions about who will pay for treating the water and delivering it to dozens of homes.

Under federal law, the U.S. Environmental Protection Agency is charged with overseeing the state's enforcement of the Clean Water Act. The EPA submitted its evaluation of the health department's settlement with Evergreen earlier this month, and was highly critical of the proposal.

It said the settlement contained "many misleading or false statements," including claims that Evergreen's water discharges never reached streams or rivers, and that there is no evidence that the company's water-pumping has adversely affected public health. The EPA listed several instances where state regulators had simply taken Evergreen's description of its actions and cited them as fact. The agency also faulted Evergreen for failing to promptly correct violations of the clean water law.

The EPA was also critical of the state's assessment of fines against Evergreen, saying Colorado had been unusually generous in reducing many of the penalties called for in federal law.

Diane Sipe, director of the EPA's regional enforcement program, says her agency usually tries to work with the state so that its enforcement is adequate, but she adds that the EPA could choose to intervene and file its own case against Evergreen. "We always retain our right to have an independent enforcement whenever it's appropriate," she says.

Independent enforcement may be exactly what's needed in this case, says Steven Taffet, the attorney who represents the Bon Carbo residents. "It appears to be the kind of settlement that gets written by an industry that has very good relations with the people in office," he says. "To our knowledge this kind of settlement wasn't available to Evergreen until Bill Owens took office."

Owens has always had especially close relations with the state's oil and gas industry. For fourteen years, he headed a division of the industry's main lobbying group, the Rocky Mountain Oil and Gas Association, at the same time he served in the state legislature. The industry also contributed heavily to his 1998 election campaign.

But state officials insist they were not told by Owens's office to go easy on Evergreen. "I'm not aware of any pressure that was brought from the governor's office for us to dilute our action," says David Akers, manager of the health department's water-quality protection section.

Evergreen CEO Mark Sexton insists his company never did anything wrong, and he blames Taffet for dragging it through a regulatory mud bath. "There's nothing harmful in the water," he says. "It's high in bicarbonates, and, like Alka Seltzer, it's good for an upset stomach. We've tested the water, and our tests indicate nothing in the water is toxic."

Usually, natural gas companies re-inject the water they pull out of the ground back into the aquifer at deep levels, where it can't contaminate drinking water. Bon Carbo residents like Bieber believe Evergreen chose not to do this in their area to save money, but Sexton claims local ranchers wanted the water in surface ponds so it could be used for cattle. "The ranchers demanded the use of the water," he says. "They wanted it for their cows and the deer and wild turkeys."

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