BEFORE THE OIL AND GAS CONSERVATION COMMISSION
OF THE STATE OF COLORADO

IN THE MATTER OF REQUEST BY GARY OHLSON AND KARI TYKESON-OHLSON FOR COMMISSION REVIEW OF DIRECTOR DECISION ON COMPLAINT NO. 200444693

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CAUSE NO. 407 ORDER NO. 407-2371

REPORT OF THE COMMISSION

The Commission heard this matter on January 29, 2018, at the Colorado Oil and Gas Conservation Commission (“COGCC” or “Commission”), 1120 Lincoln Street, Suite 801, Denver, Colorado, upon request by Mr. Gary Ohlson and Mrs. Kari Tykeson-Ohlson (collectively “the Ohlsons”) for Commission review of the Director’s decision to close Complaint No. 200444693 without issuing a Notice of Alleged Violation (“NOAV”).

The Commission finds as follows:

1. The Ohlsons are an interested party in the subject matter of the above referenced hearing.

2. Due notice of time, place, and purpose of the hearing has been given in all respects as required by law.

3. The Commission has jurisdiction over the subject matter embraced in said matter and the parties interested therein, and has authority to promulgate the hereinafter prescribed order pursuant to the Oil and Gas Conservation Act (“Act”).

PROCEDURAL HISTORY

4. On August 8, 2006, the Ohlsons filed a complaint (Complaint No. 200095139), which stated they found oily water when their water well was drilled.  

5. Between 2006 and 2010, Staff investigated Complaint No. 200095139.

6. On November 5, 2010, Staff closed Complaint No. 200095139 without issuing an NOAV.

7. On September 22, 2014 the Ohlsons submitted their second complaint (Complaint No. 2001412560) which requested that the COGCC take samples of the water from the same water well that was the subject of Complaint No. 200095139.

8. In 2014 and 2015, Staff investigated Complaint No. 2001412560.

9. On October 15, 2015, Staff closed Complaint No. 2001412560 without issuing an NOAV.

10. The Ohlsons did not appeal Staff’s decision to close Complaint No. 2001412560 to the Commission.

11. On November 7, 2017, the Ohlsons submitted an expert report to the COGCC which disputed Staff’s conclusions and requested that Staff reopen Complaint No. 2001412560. Staff informed the Ohlsons they did not intend to reopen Complaint No. 2001412560. 

12. On November 11, 2017, the Ohlsons submitted their third complaint (Complaint No. 200444693), which stated that benzene was found in water from the same water well that was the subject of the prior two complaints.

13. On December 15, 2017, Staff closed Complaint No. 200444693 and informed the Ohlsons of the closure by letter sent via email.

14. On December 15, 2017, Mrs. Tykeson-Ohlson responded to the letter and asked COGCC Staff if the Ohlsons had 28 days to request Commission review.

15. On December 15, 2017, the Ohlsons contacted the COGCC Hearings Manager and requested they be allowed to address the Commission. The Director granted this request.

16. As of January 29, 2018, the Ohlsons had not filed a formal Petition for Review in accordance with Rule 522.

HEARING

17. On January 29, 2018, the Commission heard the Ohlsons’ request.

18. The Ohlsons’ provided a summary of their past complaints, as well as the reasoning for their request.  

19. COGCC Staff provided a summary of their review of the Ohlsons’ complaints and the reasoning for their closing of the complaints.

20. The Commission questioned the Ohlsons regarding the history of complaints, and the Ohlsons’ intent in requesting Commission review.

CONCLUSIONS OF THE COMMISSION

21. Under Rule 522.b.(4), a complainant who disagrees with the Director’s decision not to issue an NOAV may request Commission review by filing a Petition for Review. The Petition for Review must be filed no later than 28 days following receipt the Director’s decision not to issue an NOAV. Rule 522.b.(5) provides that: “Applications filed later than 28 days following receipt will not be considered.”

22. Rule 502.b. provides that any person may request a “variance” from COGCC rules, including the 28-day deadline set forth in Rule 522.b.(5).

23. Rule 502.b.(1) provides: “The operator or the applicant requesting the variance shall make a showing that it has made a good faith effort to comply, or is unable to comply with the specific requirements contained in the rules, regulations, or orders, from which it seeks a variance,....”

24. A determination of good faith is a finding of fact that requires the Commission make an evaluation of the subjective intent of the Ohlsons. See Powder Horn Constructors, Inc. v. City of Florence, 754 P.2d 356, 371–72 (Colo. 1988) (“The common element to the definition of good faith is honesty, which requires an evaluation of the subjective intention of the parties.”).

25. The Commission found the Ohlsons did not timely file a Petition for Review following notice of the Director’s decision not to issue an NOAV on Complaint No. 200444693.

26. The Commission found that by inquiring as to a new 28-day period to file a petition for review, and then requesting Commission review, the Ohlsons made a good faith attempt to bring this matter before the Commission. In deciding this matter, the Commission also considered the Ohlsons’ pro se status.

27. The Commission found that, in this case, the report prepared by the Ohlsons expert was a sufficient change in circumstances or sufficiently new information for Complaint No. 200444693 to be treated as a new complaint which provided Ohlsons with the ability to submit a Petition for Review.  

28. Based on the above conclusions, the Commission enters the Order set forth below.

ORDER

IT IS HEREBY ORDERED:

1. The Ohlsons may file a Petition for Review contesting the Director’s decision not to issue an NOAV on Complaint No. 200444693, by or before February 26, 2018.

2. Any Petition for Review filed by the Ohlsons must comply with Rule 522.

3. Should the Ohlsons timely file a Petition for Review in accordance with this Order, this matter will proceed in accordance with Rule 522 as if a Petition for Review were originally timely filed.  

IT IS FURTHER ORDERED:

1.         The provisions contained in the above order shall become effective immediately.

2.         The Commission expressly reserves its right, after notice and hearing, to alter, amend or repeal any and/or all of the above orders.

3.         Under the State Administrative Procedure Act the Commission considers this Order to be final agency action for purposes of judicial review within 35 days after the date this Order is mailed by the Commission.

4.         An application for reconsideration by the Commission of this Order is not required prior to the filing for judicial review.

            ENTERED this ____ day of February, 2018, as of January 29, 2016.          

OIL AND GAS CONSERVATION COMMISSION

                                                                        OF THE STATE OF COLORADO

                                                                                                                                                 By  ____________________________________  

                                                                    Julie Spence Prine, Secretary