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."
Sexton says his company had little choice but to settle with the health department. "Otherwise we would have been forced to litigate a silly situation," he says. "Evergreen had several disagreeable choices: continue to fight in court, or pay a fine, or do something positive for the community. We chose to do something positive for the community in order to create closure with the department of health."
While the settlement is now on the table, another conflict between Evergreen and local residents is still making its way through the courts. A few days after CURE filed suit, Evergreen filed its own lawsuit against several members of the group. It claimed that some members had made slanderous public comments against the company, and that three of them had trespassed on the property of a local rancher who works closely with the company to take pictures of one of the wells. The slander claim was thrown out, but the trespassing charge will likely go to trial by early summer.
"This exposes the personal assets of concerned local citizens to a possible judgment against them," says Taffet, who believes Evergreen is pursuing the trespass case as a form of retribution against local activists.
Disputes like this one are becoming more common around the state as more people buy land in rural areas without owning the mineral rights. That means an oil or gas company that owns those rights can drill a well next to someone's home, providing a rude shock to people who thought they were moving closer to nature.
Angry conflicts between rural residents and natural-gas companies have also recently been in the news near both Durango and Parachute.
Until last week, the Owens administration had supported a plan to spend $500,000 in state-tax revenues on an advertising campaign touting the virtues of natural-gas drilling. State officials said this was necessary to remind Coloradans of how vital the industry was to the state, but they killed the proposal after it was attacked as a form of corporate welfare.
Bieber says her group now plans to work with other people around the state to try to change Colorado's laws, which they believe are slanted in favor of the oil and gas industry. She insists that the CURE activists are not opposed to natural-gas development, but simply want to make sure that what goes on in their backyards is safe and healthy.
"Our focus now is to try to change the way this industry is regulated," she says. "It's one of those issues that's ho-hum until it's on your doorstep. You have only one chance to keep your environment pristine."
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