Denver-based Antero Resources, the company revealed to be disposing of oil and gas drilling waste in Eagle County in a Colorado Independent exclusive earlier this month, is now being hit with more legal action stemming from its natural gas drilling activities in neighboring Garfield County.

According to the Glenwood Post Independent, the Aspen law firm of Thomas Genshaft filed a class-action lawsuit against Antero on behalf of the 5,000 residents of the Battlement Mesa subdivision, an unincorporated community along Interstate 70 in Garfield County.

The suit, which names six specific Battlement Mesa residents as plaintiffs, seeks a jury trial and alleges Antero’s current and future drilling activities “threaten the health and well being” of the residents of the former Exxon oil shale company town turned retirement community, according to the Post Independent.

The lawsuit filed in Denver District Court late Wednesday comes on the heels of another Genshaft lawsuit against Antero filed on behalf of a Silt Mesa family alleging drilling contamination chased them off their property.

That suit was filed in conjunction with Genshaft’s New York City partner, Napoli Bern Ripka and Associates – the firm that won huge awards in a class action suit against the city stemming from health risks associated with the World Trade Center cleanup.

Battlement Mesa residents have long accused Garfield County of failing to protect their health and welfare and promised not to give up in the wake of the county pulling the plug on its controversial Health Impact Assessment earlier this year.

The Colorado Independent earlier this month revealed that Antero is the only company utilizing the nearby Eagle County Landfill to dispose of oil and gas drilling waste. The county is now “moving away” from accepting contaminated soils and the county commissioners will have the ultimate say if Antero or any other operator seeks to dispose of pit liners, which were banned in Garfield County in 2009 because of toxic contaminants.

All contaminated soils and other drilling waste from Antero have been tested according to strict state health and environmental standards, according to Eagle County officials.

Eagle County’s solid waste and recycling director this week clarified through a spokeswoman that he is not currently considering accepting pit liners from any oil and gas companies in Colorado and that such a decision would have to be made by the Eagle County commissioners.

In response to a Colorado Independent story last week, Eagle County solid waste and recycling director Ken Whitehead also pointed out his department has recommended no longer accepting any type of so-called E&P (exploration and production) waste from oil and gas companies.

A lined natural gas waste water pit in the Marcellus Shale (photo by neighborsofeaston.blogspot.com).

The large, dense polyethylene pit liners were banned by neighboring Garfield County in July of 2009 because tests showed they can be coated in sludge containing toxins such as benzene, a known human carcinogen. The pits contain water produced during the natural gas drilling process, as well as hydraulic fluids stored for re-use in future frack jobs.

The decision to accept soils from drilling operations was made last year during the tenure of the previous Eagle County solid waste and recycling director. That type of E&P waste (mostly soil) was considered similar to other types of mining and construction soil and debris already being tested and accepted by the landfill at the time and so it wasn’t a county commissioner level decision.

Eagle County Commissioner Jon Stavney previously acknowledged to the Independent the controversial nature of E&P waste but said it filled a “great gap” in revenue since the local construction industry collapsed in the wake of the global recession in 2008. Still, he said he expected all types of E&P waste to be phased out over time and added that any consideration of taking pit liners would definitely be a commissioner-level decision.

Taking pit liners seems highly unlikely now – even if a company did float such a proposal — and Eagle County spokeswoman Kris Friel said the Solid Waste and Recycling Department staff in June was directed by Whitehead to “create a balanced budget without revenue from E&P waste.”

“Moving away from E&P waste will also be a commissioner decision that has not yet been made, although it is the staff recommendation,” Friel said. “[The commissioners] will have a work session on landfill operations coming up in August or September and E&P waste will be discussed.”

In an earlier interview, Whitehead told the Independent he didn’t know enough about the pit liners to draw a conclusion about whether the landfill should accept them. He did say there would be certain operational challenges to taking the liners, which are very large and bulky.

“I’m leaving it open right now but I don’t know enough about the pit liners for me to make a decision,” Whitehead said at the time. “I want to go see what we’re talking about. For me, I’m a hands-on kind of guy. I just want to go feel what I’m going to be working with.”

The pit liner issue has been somewhat of a political hot potato since new Colorado Oil and Gas Conservation Commission regulations went into effect in 2009 prohibiting operators from disposing of the liners by burying them on-site at drilling operations. The industry initially challenged the new regulations but later relented.

Community activists battling to mitigate the potential environmental impacts of a proposed 200-well natural gas drilling project in Battlement Mesa reacted sharply Tuesday to the news that Garfield County has dropped an ongoing Health Impact Assessment (HIA) to weigh those risks.

“Did [Garfield County] spend over $250,000 and not finish the job?” Dave Devanney of Battlement Concerned Citizens wrote in an email to supporters. “It may be that they and the industry did not like what they saw in the second draft. They saw a lot of recommendations being proposed that would cost money that they might not want to spend — recommendations that were ‘health-based’ to safeguard residents of Battlement Mesa. I’m mad as hell!”

The three Republican members of the three-member board of county commissioners unanimously decided on Monday not to approve a contract extension for the HIA, which was conducted last year by the Colorado School of Public Health. It will be available on the county’s website but has not been finalized. Also in question is funding for a long-term environmental health monitoring study (EMHS) that, along with the HIA, was being viewed as a possible model for mitigating the health impacts of natural gas drilling nationwide.

Battlement Mesa is a former Exxon company town built in the 1970s during the short-lived Western Slope oil shale boom. After that bust it was billed as a quiet retirement community where more than 5,000 people now live. But Exxon sold the mineral rights beneath the town to Denver-based Antero Resources, which now wants to drill up to 200 natural gas wells on the community’s common property, so that individual land owners won’t be compensated in the form of surface use agreements. All of the impacts, none of the benefits, drilling opponents argue.

As first reported by the Colorado Independent, Battlement Mesa residents initially asked for the HIA in late 2009. The process since then has been fraught with delays, some of them at the request of Antero in order to provide more information.

“The principal findings of the HIA are that health of Battlement Mesa residents will most likely be affected by chemical exposures, accidents/emergencies resulting from industry operations, and stress-related community changes,” the executive summary of the second draft reads.

According to the Glenwood Spring Post-Independent, Antero attorney Jennifer Beaver said, “The HIA is based on largely exaggerated and unfounded perceptions.”

The county commissioners said they will use the findings of the HIA in considering a special use permit for Antero’s drilling project. Typically the regulatory arena of the state, Garfield County retains some oversight because it approved the original Planned Unit Development for Battlement Mesa when it was first proposed by Exxon.

Antero is facing at least one lawsuit stemming from its drilling operations in the Silt area, and many Battlement Mesa residents have been in contact with various New York City firms specializing in class-action litigation stemming from environmental health impacts.

Devanney urged a major publicity campaign to daylight the decision by the county commissioners.

“Let’s not go away quietly,” he wrote. “Let’s let the rest of Garfield County and the nation know how we feel. Let’s begin by writing letters to the editor of all the local papers, and then let the Front Range and the rest of Colorado know what we think.”

A New York City law firm today will hold a press conference on the West Steps of the Colorado State Capitol building in Denver to announce a lawsuit against a Denver-based natural gas drilling company for the alleged contamination of a Silt family’s property “leading to their forced exile from their home and serious health effects.”

Napoli Bern Ripka & Associates, a New York City firm that negotiated huge settlements for workers sickened during the Ground Zero cleanup, sent out a release Wednesday announcing the unusual 11 a.m. press conference in conjunction with the Aspen-based law firm of Thomas Genshaft.

The firms are filing a complaint against Denver-based Antero Resources and several of its contractors after holding meetings with residents of the Garfield County towns of Silt and Battlement Mesa to explore possible mass tort lawsuits stemming from the impacts of natural gas drilling in the second-most drilled county in the state.

The complaint being filed today is in the name of one Silt family not identified in the press release. However, the Glenwood Springs Post Independent reports it’s on behalf of Bill and Beth Strudley of Silt Mesa, who claim one of their sons was seriously sickened after Antero drilled an exploratory well about a half mile from their home in September of last year.

According to the newspaper, “the family reported that one of their sons grew seriously ill in the late summer of 2010, developing rashes, nosebleeds and blackouts that he had never experienced before the drilling started.”

“Our law firms are continuing to research communities statewide and are dedicated to protecting and improving water quality, air quality and property values for their families, including livestock, and allowing them to maintain their way of life as they are entitled,” Peter W. Thomas of Thomas Genshaft said in the release.

The release mentions recent media coverage of water and air contamination issues and ongoing efforts by Democratic Colorado Reps. Jared Polis and Diana DeGette to increase federal oversight of natural gas drilling practices.

The fire was reportedly put out in about an hour and half, with minimal damage and no injuries, but the incident is sure to prompt even more calls for tighter local regulation of the oil and gas industry. Williams is the most active drilling company in Garfield County, which saw the second most drilling permits issued in the state in 2010.

Denver-based Antero is seeking state permission to increase well density in two subdivisions near Silt, and is also negotiating a 200-well project in the retirement community of Battlement Mesa, where some residents are worried about toxic fumes and potential accidents. Garfield County officials recently criticized state drilling regulations as being insufficient to properly ensure public safety and health. The industry is legally challenging the state’s current regulations.

Hydraulic fracturing, or fracking, is the commonly used process of injecting water, sand and undisclosed chemicals under very high pressure deep into gas wells to crack open sandstone and free up more gas. There is a national push to require disclosure of chemical formulas, which oil and gas companies claim are proprietary.

This from the KJCT News 8 website:

“Williams spokeswoman Susan Alvillar says smaller fires associated with [fracking] are not uncommon. She explained that after wells are drilled, sand and water are pushed into the well to help release natural gas from deep inside the ground.

“In order to allow the natural gas to reach the surface, the sand and water are removed, and the water is pumped into several tanks. The water can contain flammable hydrocarbons. She says these flammable materials can lead to fires, but that crews are trained to either put them out themselves or let them burn out on their own. She says the fire departments are often called to the scene as a backup measure.”

Steve Balcomb, an attorney whose firm represents Denver-based Antero Resources, told the Garfield County Commissioners this week that “we’re on the verge of a very bad time in Garfield County” because of increased state and local regulation.

Antero is seeking permission from the COGCC to increase drilling density in two Silt subdivisions from one well per 40 acres to one well per 10 acres. Reacting to citizen concern, the Garfield County commissioners agreed to intervene with the state regulatory board.

Balcomb, according to the Glenwood Post Independent, told the county commissioners they should not be involved in every aspect of the everyday life of the oil and gas company and that such stepped-up involvement is chasing the industry out of the state. Area residents worried about impacts to traffic and air and water quality disagree.

Several area residents joined Democratic county commissioner Trési Houpt in countering that an ongoing recession and gas prices a dollar lower per mmBTU than they were a year ago are really to blame for the drilling downturn.

Neslin said the COGCC issued 5,996 drilling permits in 2010, well off the 2008 record of 8,027, but still the third highest total ever. Garfield County was second only to Weld County, with 2,037 permits issued compared to 2,152.

Battlement Concerned Citizens (BCC) in Battlement Mesa has engaged an attorney who feels the unincorporated community of more than 5,000 residents along Interstate 70 could be an ideal test case for exercising county 1041 powers that could in some respects trump state regulatory authority over natural gas drilling.

County 1041 powers are typically used to assert local control over infrastructure projects such as water diversion and storage, power lines and roads. The law has never been used to regulate oil and gas drilling, which is under the purview of the Colorado Oil and Gas Conservation Commission.

Over the summer, the three-member Garfield Board of County Commissioners had the county attorney investigate 1041 powers and the conclusion was that Battlement Mesa didn’t necessarily qualify as a new area of “special state interest” and that 1041 didn’t really apply. But the commissioners still directed the county attorney to get with the BCC lawyer to explore their differences.

Now two of the three commissioners want a formal presentation on 1041 powers, according to the Glenwood Springs Post Independent, while Republican John Martin didn’t seem to see the point of such an exercise.

One point may be that Battlement Mesa residents are now more concerned than ever about the potential impacts of up to 200 new natural gas wells in their community. The county on Monday released a draft version of a health impact study that concludes there could be significant air quality issues if Denver-based Antero Resources moves ahead with its drilling plan. Those residents, therefore, want more local control.

The Battlement Mesa Health Impact Assessment (HIA), in the works for nearly a year, was conducted by the Department of Environmental and Occupational Health at the Colorado School of Public Health. Garfield County paid for the study from its oil and gas mitigation fund.

Here are some excerpts from the executive summary:

“The Antero natural gas development plan is likely to change air quality and produce undesirable health impacts in residents living in close proximity throughout the community. Air quality is most likely to be acutely impacted during well pad construction and well completion stages and by truck traffic.

“Long-term compromise of air quality is possible if fugitive emissions from production equipment are not controlled and the impacts to air quality are expected to occur constantly and/or reoccur. Children, older adults, and individuals with respiratory diseases may be more vulnerable to the air contaminants and could experience short-term and/or long-term disease.”

According to the Glenwood Springs Post Independent, Denver-based Antero Resources, which is also planning a 200-well project in Battlement Mesa, will start drilling another 284 wells south of Silt in the late summer or early fall.

The paper reports officials in the nearby towns of Silt and New Castle have expressed concerns about traffic, emergency response and toxic spill notification (among other things) to the U.S. Bureau of Land Management, which controls the 6,500 acres in question and completed an Environmental Assessment of the project on Friday.

“If they address those concerns, we’re probably happy. If they don’t, we’re probably not happy,” Silt and New Castle planning consultant David Farrar told the paper.

In other energy news in the area, the grassroots Thompson Divide Coalition was meeting with the Garfield County commissioners Monday to seek support for a bill the group plans to present to 3rd Congressional District Rep. John Salazar.

According to the Post Independent, the bill would take 221,500 acres of federal land in the Thompson Divide area west of Carbondale out of consideration for mineral leasing, as well map out a plan to “buy, exchange or ‘retire’ about 81 existing leases in the area, or to convince the mineral owners to relinquish them.”

Drilling in the Thompson Divide roadless area is a highly contentious issue. A representative of the Wilderness Workshop previously told the Colorado Independent, “The citizens of Carbondale are like, ‘Over my dead body on that one,’ and they say things like, ‘Just tell me when it’s time to lie in front of the bulldozers.’”

The Pitkin County commissioners have been weighing new drilling regulations to further regulate any potential drilling in the Thompson Divide area.

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The grassroots Battlement Concerned Citizens group is holding a public meeting Wednesday at 2 p.m. at the Battlement Mesa Activity Center to discuss fumes they believe are emanating from an Antero well pad at Watson Ranch just east of the Battlement Schoolhouse.

Garfield County oil and gas liaison Judy Jordan will attend, according to the BCC, and Antero officials have also been invited. The group has been working to mitigate the potential impacts of a planned 200-well drilling project by Denver-based Antero, and some residents are concerned the odors are a preview of the future the drilling plan will bring to the community.

Last week Garfield County, on the advice of its attorney, declined to declare Battlement Mesa an area of state interest in order to exercise county 1041 powers, which have been used in the past to assert county control over infrastructure projects typically regulated by the state. Eagle County successfully used 1041 powers to stop an Aurora and Colorado Springs water diversion project in the 1990s.

However, the special county powers – named after House Bill 1041 in the 1970s – have not been used to try to regulate oil and gas drilling, which is permitted and overseen by the state’s Oil and Gas Conservation Commission. Garfield County last week did direct its attorney to work to try and resolve differences with a BCC attorney who says the 1041 powers may be applicable.

The county attorney, according to the Glenwood Springs Post Independent, concluded Battlement Mesa is not a new enough development that its growth would be threatened by drilling and that when the county approved its original PUD in 1970s as an Exxon oil shale company town, mineral development was contemplated.

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A New Mexico reality Battlement Mesa residents are seeking to avoid (TexasMary, Flickr)

Residents of the unincorporated Western Slope community of more than 5,000 have been working hard to get out ahead of a plan by Denver-based Antero Resources to drill up to 200 new natural gas wells within town boundaries. The county retains special-use permit authority over the project because it approved the original plan for the former Exxon company town.

Garfield County officials have agreed to fund a Health Impact Study before drilling occurs, but a lawyer consulted by the Battlement Concerned Citizens questions the ability of the county to fully regulate oil and gas drilling if those health impacts prove too extreme. The state, via the Colorado Oil and Gas Conservation Commission, has the ultimate regulatory authority.

Representatives of the BCC on Monday presented the findings of their attorney to the Garfield County commissioners and asked that the county consider exercising its 1041 powers granted under HB 1041, the Colorado Land Use Enabling Act of 1974. Those powers in the past have been used to stop major infrastructure projects such as the Homestake II water diversion in Eagle County – although that process took years and a decision by the Colorado Supreme Court.

Ron Galterio, co-chair of the Battlement Concerned Citizens – a subcommittee of the Grand Valley Citizens Alliance – said Antero chose Battlement Mesa primarily because it’s unincorporated and doesn’t have the regulatory teeth a municipality would have.

“We believe that Garfield County could fill that gap in local regulatory control under the provisions of HB 1041,” Galterio said. “In the case of Battlement Mesa, 1041 Powers would allow the authority of the county to rise to state level in its ability to regulate any development or activity, including oil and gas, that could affect the overall growth and development of the community.”

According to the Glenwood Springs Post Independent, Republican county commissioner John Martin expressed doubts about the challenges of pursuing 1041 regulation of oil and gas drilling, but Houpt, a Democrat, sought more information:

“While commissioner John Martin told Galterio that working with the 1041 powers is ‘not a really easy process’ and is ‘real challenging,’ commissioner Trési Houpt directed [county attorney Don] DeFord to look into the matter and report back to the commissioners at a future meeting,” the paper reported Tuesday.

Houpt also serves on the COGCC board, and a county exercising 1041 powers over oil and gas drilling would presumably usurp some of the state authority. However, Houpt pointed out that the county already regulates some of the surface impacts of drilling under its own set of regulations, although Garfield doesn’t go as far as La Plata County, which can actually approve the location of a well pad.

She acknowledged 1041 powers tend to typically be exercised in areas of rapid development in order to regulate infrastructure projects such as power lines or water diversion and storage facilities. They have not been used to regulate oil and gas drilling.

BCC consultant and water attorney G. Moss Driscoll of Carbondale said the county must declare Battlement Mesa an area of “state interest,” important to the county because of its potential for future population growth. Driscoll worked on the landmark Homestake II decision, which gave local governments control over development previously regulated primarily by the state.

“The resulting regulatory system would respect the authority of the Colorado Oil and Gas Conservation Commission over oil and gas drilling, while allowing residents to ensure that the massive scope of Antero’s proposed operations does not permanently impair the community’s long-term growth and development,” Driscoll wrote in an analysis for the BCC.

Dave Devanney, co-chair of BCC, said his group remains confident the county is operating with the best interests of its citizens in mind.

“Of course this confidence — that Garfield County is concerned and being proactive in protecting our health, safety and welfare – is balanced with the extreme concern that we and all citizens of this country feel regarding the unprecedented environmental and economic harm currently happening in the Gulf of Mexico and even not so far away as Salt Lake City, Utah,” Devanney said.

“These concerns come at a time when the energy industry continues to try to eliminate or minimize the rules and regulations that regulators and legislators have imposed.”

Josh Joswick, a former three-term La Plata County commissioner who’s now the oil and gas issues organizer with San Juan Citizens Alliance, said there was some talk of La Plata trying to exercise its 1041 powers when he first came into office in the 1990s but the county decided not to go down that long regulatory road.

Instead it embarked on an equally grueling legal odyssey that resulted in industry and state lawsuits ultimately decided in La Plata’s favor by the Colorado Supreme Court. The county is widely regarded as having some of the most stringent local regulations for oil and gas drilling, but Joswick said 1041 could be a very viable new arrow in a county’s regulatory quiver.

Using 1041 would establish a precedent along the lines of the 1992 high court ruling in favor of La Plata, which Joswick called a “groundbreaking case because the Supreme Court ruled counties can exercise land-use authority when it comes to oil and gas development, but within certain parameters. The kicker on it is was so long as it doesn’t create an ‘operational conflict’ with the COGCC, but didn’t define operational conflict.”

La Plata interpreted the decision to mean the county could weigh in on surface activities such as roads and locations of well pads, but the COGCC would continue to dictate subsurface activities such as actual drilling, hydraulic fracturing and extraction of oil and gas.

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