Lawsuit aims for compliance with Clean Water Act
An attorney for a citizens group that took legal action against EnCana this week hopes the move will force the natural gas producer to obtain a permit under the Clean Water Act.The Western Colorado Congress filed a notice of intent to sue EnCana over a gas seep south of Silt that state regulators say contaminated West Divide Creek.Sean McAllister, attorney for the alliance of nine western Colorado citizens groups, said the federal Clean Water Act’s language is clear that any party that discharges pollutants into surface waters without a permit is in violation of the law.But the state of Colorado has made no requirement for EnCana to obtain that permit, he said.Those permits are issued by the state Water Quality Control Division. However, the seep investigation is being handled by the Colorado Oil and Gas Commission, under an agreement between the agencies for dealing with such situations.”What we’re looking at here is a hole in the ongoing system,” McAllister said.”The regulatory system is not designed to handle a situation like this for whatever reason, and this lawsuit is about trying to enforce some accountability in this area.”But Tricia Beaver, hearings officer for the COGCC, said it doesn’t seem to make sense to require permits for unintentional discharges.”You don’t regulate an accident,” she said. “If our rules and regulations are being complied with, which apparently EnCana was attempting to do but was not successful, then there’s not going to be any contamination to drinking supplies.”She said the oil and gas industry is required to obtain discharge permits for water produced as a part of drilling. It is subjected to testing and reporting requirements aimed at limiting the amount of pollutants in the water.But to require a permit for an accidental release of pollutants “kind of doesn’t make sense to me,” she said.EnCana spokesman Walt Lowry said he can’t comment on pending litigation, except to agree with Beaver that the company wouldn’t file for a permit for an unanticipated release.He declined to say whether EnCana acknowledges responsibility for the seep, but said the company has been proactive in responding to issues surrounding it since it was first reported. Among other actions, the company has been providing drinking water to nearby residents and has stopped drilling and well fracturing operations within a two-mile radius of the seep site.In April, the COGCC issued a notice of alleged violation to EnCana, saying it improperly cemented off a nearby well, resulting in the water contamination. The contaminants include benzene, which causes cancer.Lisa Bracken, who lives in the area of the seep and is a member of WCC, said in a news release announcing the legal action that state regulatory authorities are failing to safeguard surface and drinking waters supplies from contamination.”Without our state adequately monitoring corporations and enforcing certain regulations, it unfortunately falls to citizens to hold polluters accountable,” she said.McAllister, a Denver-area attorney, said he knows he will be up against a big legal team representing EnCana.”I’m not worried, if you have truth on your side,” he said. “You can’t bend the words of the law.”Previously employed with the state Attorney General’s Office, he said he has worked on environmental lawsuits across the West, mostly regarding the oil and gas industry.He said if EnCana were made to obtain a permit under the Clean Water Act, it would be subject to limitations on pollution, reporting and monitoring requirements, and possible fines if water contamination exceeds the allowed limits.The WCC has filed a 60-day notice of intent to file a lawsuit. Several legal proceedings between now and then will determine if it goes forward with the suit, McAllister said. If the government steps in and requires a permit from EnCana, that would make filing suit unnecessary, he added.He said the suit would be filed in federal district court in Denver or Grand Junction.Contact Dennis Webb: 945-8515, ext. firstname.lastname@example.org
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