“We don’t want to be activists”: The farmers pushing for stronger pipeline safety rules

A pair of sugar beet and corn farmers would seem an unlikely duo to take on the oil and gas industry and the state’s biggest utilities over the issue of pipeline safety, but that is exactly what Mark and Julie Nygren have done.

The Nygrens’ battle before the Colorado Public Utilities Commission is now close to bearing fruit as the commission is slated to take up draft rules Wednesday. The comprehensive pipeline safety regulations were required by Senate Bill 108.

The new rules will come none too soon, state Sen. Tammy Story, a Democrat from Conifer who was a prime sponsor of the 2021 legislation, said. A Colorado State Auditor review in May found widespread shortcomings in the PUC’s inspection program.

“The entire gas pipeline system as it relates to inspection and monitoring is an epic failure,” said Story, who requested the state audit.

The Nygrens’ tale underscores those findings in human terms, as pollution from a leaking pipeline led to the destruction of their home and the loss of most of their belongings.

“We are farmers,” Mark Nygren said. “We don’t want to be activists. We support the oil and gas industry. But what has happened to us should never happen to another family in Colorado.”

An administrative law judge has recommended the commission adopt rules, including mapping the location of pipelines where possible and a Nygren proposal for an annual report by each operator listing the size and location of all leaks.

Incidents currently aren’t required to be reported under federal and state rules unless they result in death or injury requiring hospitalization, property damage of at least $122,000, unintentional gas loss of 3 million cubic feet or more, or an emergency shutdown of a facility.

The judge, however, rejected another Nygren proposal asking that operators be required to use advanced leak detection systems. The couple, in PUC filings, are still pressing the full commission to adopt the requirement.

While the Nygrens have been the prime advocates in the PUC proceedings they aren’t alone as their efforts are supported by 19 local governments and environmental organizations, collectively called the Nygren Consensus Group.

The group includes Boulder, Adams and Broomfield counties as well as Commerce City, Aurora and the town of Erie.

“With the exception of Firestone this is as bad a case as I’ve seen”

The story of how the Nygrens went from their Johnstown farm to appearing before the PUC began in 2016 with some dying trees in their yard. They had an arborist come out who thought it might be beetles. It wasn’t.

Nygrens have farmed in Weld County for four generations and Mark and Julie moved to the farm adjoining his father’s spread in 1984 and there they raised their daughter and two sons, as well as a range of crops from barley to pinto beans to wheat.

“After we discovered the leak a lot of things fell into place,” Mark Nygren said. The leak from a DCP Midstream pipeline was located April 2, 2019, when a bright green sludge and plume of gas vapors was found in a ditch across the road from the house.

By this time, Julie Nygren said she and her husband had been dealing with a string of health issues including nerve pain, severe headaches and digestive problems, but they were told the leak was too far away to cause any problems.

Three days after the leak was found an Xcel Energy inspector discovered that the couple’s basement was filled with explosive gas and soon a green sludge, similar to the substances across the road, was found near the home’s sump pump.

The pipeline operator told the couple that the entire area needed to be remediated and that their home had to be leveled and their contaminated belongings carted away.

The family’s possessions were hauled out to the front lawn for Mark and Julie Nygren to shift through. “We kept a few heirlooms that are now in storage,” Mark Nygren said, “but everything porous — clothing, beds, furniture — went to the landfill.”

In a PUC filing, DCP, which is now majority-owned by Houston-based Phillips 66, disputed some of the Nygrens’ statements.

Within 15 minutes of being notified there was a leak, DCP personnel were on site and had shut in the pipeline, stopping the leak, the filing said, adding that “within days, DCP had begun its investigation into the source of the leak, as well as its environmental remediation efforts.”

DCP Midstream said that the problem was caused by a contractor who improperly installed a 6,000-pound concrete culvert in 2015 directly above and within inches of the pipeline. The pipeline company is suing the contractor.

The Nygrens, who have been living in a rental home, are also suing DCP Midstream since they have not been able to come to a damage settlement with the company.

“We have gotten nowhere in five years,” Mark Nygren said. “We were naive to think they would make us whole.” The couple has a court date for December 2024.

A spokesman for Phillips 66 said the company does not comment on pending litigation.

“With the exception of Firestone this is as bad a case as I’ve seen,” said the Nygrens’ attorney Lance Astrella, who has represented local governments and property owners in oil and gas cases for 25 years. In 2017, a leaking line caused an explosion that destroyed a house in Firestone and killed two people.

“Whose jurisdiction is it?”

Before their home was demolished, the Nygrens had a meeting there with representatives of the PUC’s Gas Pipeline Safety Program and the Colorado Oil and Gas Conservation Commission, which last year was renamed the Energy and Carbon Management Commission.

“We were told basically, by both the COGCC and the PUC, this isn’t our jurisdiction,” Julie Nygren said. “I said, ‘Well, whose jurisdiction is it then?’” 

“They said they’d get back to us, someone would get back with us,” she said. “They would let us know whose jurisdiction it was. That never happened. You know, we just basically were on an island by ourselves dealing with this.”

That is how farmers became activists.

“You know, we consider ourselves, even after all of this, to be lucky because the family in Firestone were not so lucky and that could very well have been us,” Julie Nygren said. “And you know that there are other leaking pipelines out there.”

There are more than 45,000 miles of pipelines in Colorado, according to the federal Office of Pipeline Safety, including 2,700 miles of oil and hazardous liquid lines, 8,100 miles of gas transmission pipelines, 620 miles of gas gathering lines and 33,754 miles of distribution lines.

In addition, there are an estimated 6,500 miles of smaller flowlines, which carry oil and gas from wells to a central collection point. It was a broken flow line that caused the Firestone explosion.

Gathering lines carry production to processing facilities or transmission pipelines and transmission pipelines carry gas to distribution lines that bring it to homes and businesses.

Flowlines are regulated by the ECMC, which issued new rules after the Firestone accident requiring the mapping of the lines, inspections and in some cases the removal of defunct lines.

Interstate transmission lines are regulated by the U.S. Pipeline and Hazardous Materials Safety Administration and intrastate pipelines by the PUC’s Pipeline Safety Program. Or at least they are supposed to be regulated by the program.

The state audit found that between 2017 and 2022 the program did not inspect pipeline operators as required or had no records to show that they did. Inspectors were also not adequately trained.

In 94% of the 5,643 instances where concerns and noncompliance were recorded, the program did not issue any written noncompliance action. In six years, it issued 23 penalties, but collected only four.

The lax approach came with costs, the audit said. Between 2018 and 2022 there were nine cases of gas pipeline safety accidents where there had been documented noncompliance before the accident, but no action had been taken.

Those incidents resulted in two fatalities, nine people injured, including four hospitalized, and more than $1 million in property damage, according to the audit.

For example, the audit said no compliance action was issued to Black Hills Energy after an inspection found that the utility had mismarked a pipeline in Gypsum. In 2020, this led to an explosion that killed one person and caused “catastrophic” property losses when the pipeline was accidentally struck by a fiber optic drilling operation.

Black Hills was issued a verbal warning after the accident, according to the audit.

In its response, the PUC said it agreed with the 39 audit findings (one was partial agreement) and is addressing them. In a December update, the pipeline safety program said most of the required actions have been completed and the remainder are on target.

“The audit identified the need for better documentation and oversight of the PUC’s pipeline safety program,” PUC Director Rebecca White said in a statement. “We welcome this scrutiny and the opportunity to strengthen the program and the important work we do to ensure public safety.”

“The rulemaking has been exceptionally slow”

It has been almost three years since Senate Bill 108 directed the PUC to draw up new inspection rules. “The PUC has been sitting on it,” Sen. Story said. “The rulemaking has been exceptionally slow.”

On Wednesday, the PUC will have to go through 16 challenges or “exceptions” to elements of the proposed rule from intervenors, including utilities, oil and gas trade groups and the Nygrens. 

Three main points of contention in the rulemaking are over proposed requirements for reporting leaks, mapping pipelines and requiring the use of advanced leak detection technology.

The disputes have the Nygrens squaring off with Xcel Energy and the state’s largest oil industry trade associations.

Xcel Energy, along with the Colorado Oil and Gas Association and American Petroleum Institute-Colorado, urged delay in the rules since there is a federal pipeline safety rulemaking underway.

COGA, in its filing, argued state rules may “not be compatible” with the new federal rules and Xcel Energy warned that “potentially inconsistent requirements” between state and federal rules could create “confusion and conflict.”

The Nygrens, however, pointed out that numerous states, including Washington, New York, New Jersey and Texas, already have reporting laws and their proposal was based on the Washington rule.

“The ALJ finds that the leak reporting proposed by the Nygrens is in the public interest,” Conor Farley, the administrative law judge, ruled.

As for the mapping requirement, Xcel Energy raised security concerns if the location of all pipelines were public. The cost and ability to even generate a full map were also raised by the utility and other operators.

Farley’s recommendation was for the operators to map lines “to the extent available.”

That drew a response from the Nygrens, who said in a filing: “The phrase, ‘to the extent available’ is a huge loophole that would allow pipeline operators to submit incomplete information or, in some cases, nothing at all.”

Julie Nygren walks an area east of where her house once stood on her family farm in Johnstown, where she and her husband, Mark, now live in a rented home. Contamination from a nearby underground gas pipeline leak was so severe that the home had to be demolished. Julie hopes a new home might be built on this new site sometime in the future. (Kathryn Scott, Special to The Colorado Sun)

When it came to requiring advanced leak detection — which is a requirement specified in Senate Bill 108 — the administrative law judge accepted the Xcel Energy and oil industry argument that in the name of efficiency it should be delayed until the federal rule is issued.

The Nygrens argued that their suggested rule is based on the proposed federal rules, which include continuous monitoring on or along pipelines, through periodic surveys with handheld equipment, equipment mounted on mobile platforms, or other commercially available technology.

The federal rule also proposes technology must be capable of detecting all leaks that produce a reading of 5 parts per million of gas or greater when measured 5 feet from the pipeline.

“If we knew the regulations from the feds are coming next week that would be fine,” Story said. “But it could be years and we are already two years behind in what we need to do.”

The state, Story said, can legally have more stringent rules than the federal ones.

In a filing to the full commission, the Nygrens asked that, at a minimum, the PUC set a deadline for starting an advanced leak detection rulemaking. 

And whenever that is the Nygrens will be there.

“We’re not the kind of people to just walk away from something when we know it’s an issue,” Mark Nygren said. “I mean, we don’t have any choice but to fight it. And we’re going to keep fighting as long as we possibly can until there’s resolution.”

Mark and Julie Nygren had enviable mountain views from their home on their family farm in Johnstown, Colorado. Their home is no longer there and an empty lot stands in its place, after contamination from a nearby underground gas pipeline leak was so severe that the home had to be demolished. “This was our paradise,” Julie says. “I thought it would get easier over time to come out here and see our house gone, but it never does.” (Kathryn Scott, Special to The Colorado Sun)