Case 1:21-cv-02165-KLM Document 1 Filed 08/10/21 USDC Colorado Page 1 of 35
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`IN THE UNITED STATES DISTRICT COURT
`DISTRICT OF COLORADO
`
`UNITED STATES OF AMERICA,
`
`Plaintiff,
`
`v.
`
`
`
`
`
`
`
`
`
`Civil Action No. 1:21-cv-2165
`
`)
`)
`)
`)
`)
`)
`NOBLE ENERGY, INC., NOBLE MIDSTREAM )
`PARTNERS LP, NOBLE MIDSTREAM
`)
`SERVICES, LLC,
`)
`)
`)
`)
`
`Defendants.
`
`COMPLAINT
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`The United States of America, by the authority of the Attorney General of the United
`
`States, and acting at the request of the United States Environmental Protection Agency (“EPA”),
`
`files this Complaint and alleges as follows:
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`NATURE OF THE ACTION
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`The United States brings this civil action against Noble Energy, Inc., Noble
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`Midstream Partners LP, and Noble Midstream Services, LLC (collectively “Defendants”)
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`seeking civil penalties and injunctive relief for violations of the Clean Water Act. The violations
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`include the unauthorized discharge of harmful quantities of oil into or upon the Cache la Poudre
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`River (“Poudre River”) and its adjoining shorelines in May and/or June 2014 in Weld County,
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`Colorado. The violations also include the failure to comply with regulations issued to prevent
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`and respond to oil spills, 40 C.F.R. Part 112, at two oil and gas facilities in Weld County,
`
`Colorado.
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`-1-
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`DISTRICT OF COLORADO
`
`UNITED STATES OF AMERICA,
`
`Plaintiff,
`
`v.
`
`
`
`
`
`
`
`
`
`Civil Action No. 1:21-cv-2165
`
`)
`)
`)
`)
`)
`)
`NOBLE ENERGY, INC., NOBLE MIDSTREAM )
`PARTNERS LP, NOBLE MIDSTREAM
`)
`SERVICES, LLC,
`)
`)
`)
`)
`
`Defendants.
`
`COMPLAINT
`
`The United States of America, by the authority of the Attorney General of the United
`
`States, and acting at the request of the United States Environmental Protection Agency (“EPA”),
`
`files this Complaint and alleges as follows:
`
`NATURE OF THE ACTION
`
`The United States brings this civil action against Noble Energy, Inc., Noble
`
`Midstream Partners LP, and Noble Midstream Services, LLC (collectively “Defendants”)
`
`seeking civil penalties and injunctive relief for violations of the Clean Water Act. The violations
`
`include the unauthorized discharge of harmful quantities of oil into or upon the Cache la Poudre
`
`River (“Poudre River”) and its adjoining shorelines in May and/or June 2014 in Weld County,
`
`Colorado. The violations also include the failure to comply with regulations issued to prevent
`
`and respond to oil spills, 40 C.F.R. Part 112, at two oil and gas facilities in Weld County,
`
`Colorado.
`
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`Case 1:21-cv-02165-KLM Document 1 Filed 08/10/21 USDC Colorado Page 2 of 35
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`JURISDICTION, AUTHORITY, VENUE, AND NOTICE
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`This Court has jurisdiction over this case pursuant to 28 U.S.C. §§ 1331, 1345,
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`and 1355; and 33 U.S.C. §§ 1319(b), 1321(b)(7)(E), and 1321(n).
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`
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`The United States Department of Justice is authorized to bring this action by 33
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`U.S.C. § 1366 and 28 U.S.C. §§ 516 and 519.
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`
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`Venue lies in this District pursuant to 33 U.S.C. §§ 1319(b) and 1321(b)(7)(E),
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`and 28 U.S.C. §§ 1391(b) and 1395(a), because Defendants do business in this District and the
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`violations which are the basis of this Complaint occurred in this District.
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`
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`Notice of commencement of this action has been given to the State of Colorado
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`pursuant to 33 U.S.C. § 1319(b).
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`DEFENDANTS
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`
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`Noble Energy, Inc. (“Noble”) is a Delaware corporation engaged in oil and gas
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`production and exploration worldwide. Noble maintains its principal place of business in
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`Houston, Texas, and at all relevant times has conducted business in Colorado.
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`
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`Noble Midstream Partners LP (“NMP”) is a Delaware master limited partnership
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`formed in 2014 by its parent Noble Energy, Inc. and provides oil, gas, and water-related
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`midstream services in the United States. NMP maintains its principal place of business in
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`Houston, Texas, and at all relevant times since its formation has conducted business in Colorado.
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`
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`Noble Midstream Services, LLC (“NMS”) is a Delaware limited liability
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`company formed in 2014 and provides oil, gas, and water-related midstream services in the
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`United States. NMS maintains its principal place of business in Houston, Texas, and at all
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`relevant times since its formation has conducted business in Colorado. NMS is wholly owned by
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`NMP.
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`Noble, NMP, and NMS are each a “person” within the meaning of Sections
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`311(a)(7) and 502(5) of the Clean Water Act, 33 U.S.C. §§ 1321(a)(7), 1362(5).
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`STATUTORY AND REGULATORY FRAMEWORK
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`Clean Water Act Section 311(b)(3)
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`Section 311(b)(3) of the Clean Water Act, 33 U.S.C. § 1321(b)(3), prohibits the
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`“discharge of oil or hazardous substances … into or upon the navigable waters of the United
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`States [and] adjoining shorelines …, in such quantities as may be harmful as determined by the
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`President.”
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`
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`The President has delegated authority to the Administrator of EPA under Section
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`311(b)(3) and (b)(4) of the Clean Water Act for determining quantities of oil the discharge of
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`which may be harmful. Exec. Order No. 12777, Sec. 8(a), 56 Fed. Reg. 54,757, 54,768 (Oct. 18,
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`1991).
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`
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`Discharges of oil that violate applicable water quality standards, or cause a film or
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`sheen upon or discoloration of the surface of the water or adjoining shorelines, or cause a sludge
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`or emulsion to be deposited beneath the surface of the water or upon adjoining shorelines are, for
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`purposes of Section 311(b)(3) of the Clean Water Act, 33 U.S.C. § 1321(b)(3), discharges of oil
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`in such quantities that the Administrator has determined may be harmful to the public health or
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`welfare or the environment of the United States. 40 C.F.R. § 110.3.
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`“Discharge” is defined by Section 311(a)(2) of the Clean Water Act, 33 U.S.C.
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`§ 1321(a)(2), to include “any spilling, leaking, pumping, pouring, emitting, emptying, or
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`dumping.”
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`
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`“Oil” is defined by Section 311(a)(1) of the Clean Water Act, 33 U.S.C.
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`§ 1321(a)(1), as “oil of any kind or in any form, including, but not limited to, … oil mixed with
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`wastes.”
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`
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`“Navigable waters” is defined by Section 502(7) of the Clean Water Act, 33
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`U.S.C. § 1362(7), to mean “waters of the United States, including the territorial seas.” In turn,
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`“waters of the United States” has been defined to include, inter alia, all waters which are
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`currently used, were used in the past, or may be susceptible to use in interstate or foregoing
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`commerce; and tributaries to such waters; and wetlands adjacent to the foregoing waters. 40
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`C.F.R. § 110.1 (1993).
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`
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`Section 311(b)(7)(A) of the CWA provides that any “person who is the owner,
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`operator, or person in charge of any . . . onshore facility . . . from which oil or a hazardous
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`substance is discharged” in violation of Section 311(b)(3) shall be subject to a civil penalty. 33
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`U.S.C. § 1321(b)(7)(A).
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`
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`“Person” is defined by Section 311(a)(7) of the Clean Water Act, 33 U.S.C.
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`§ 1321(a)(7), to include corporations, associations, and partnerships.
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`
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`“Owner or operator” is defined by Section 311(a)(6) of the Clean Water Act, 33
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`U.S.C. § 1321(a)(6), to mean, in the case of an onshore facility, “any person owning or operating
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`such onshore facility.”
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`“Onshore facility” is defined by Section 311(a)(10) of the Clean Water Act, 33
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`U.S.C. § 1321(a)(10), to include “any facility … of any kind located in, on, or under, any land
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`within the United States other than submerged land.”
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`
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`Pursuant to Section 311(b)(7)(A) of the CWA, 33 U.S.C. § 1321(b)(7)(A), and 40
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`C.F.R. § 19.4, each violation of Section 311(b)(3) occurring after December 6, 2013 and on or
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`before November 2, 2015 is subject to a civil penalty of up to $37,500 per day of violation or up
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`to $2,100 per barrel of oil or unit of reportable quantity of hazardous substances discharged.
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`Clean Water Action Sections 301 and 309
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`
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`Section 301(a) of the Clean Water Act, 33 U.S.C. § 1311(a), prohibits the
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`discharge of any pollutant by any person, except as authorized by the Clean Water Act.
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`
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`“Pollutant” is defined by Section 502(6) of the Clean Water Act, 33 U.S.C.
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`§ 1362(6), to include “solid waste, … chemical wastes, … and industrial … waste discharged
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`into water.”
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`
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`“Discharge of a pollutant” is defined by Section 502(12) of the Clean Water Act,
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`33 U.S.C. § 1362(12), to mean “any addition of any pollutant to navigable waters from any point
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`source.”
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`
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`“Navigable waters” is defined by Section 502(7) of the Clean Water Act, 33
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`U.S.C. § 1362(7), to mean “waters of the United States, including the territorial seas.” In turn,
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`“waters of the United States” has been defined to include, inter alia, all waters which are
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`currently used, were used in the past, or may be susceptible to use in interstate or foregoing
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`commerce; and tributaries to such waters; and wetlands adjacent to the foregoing waters. 40
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`C.F.R. §§ 122.2 & 110.1 (1993); 40 C.F.R. § 120.2 (2020).
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`
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`“Point source” is defined by Section 502(14) of the Clean Water Act, 33 U.S.C.
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`§ 1362(14), to mean “any discernible, confined and discrete conveyance, including but not
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`limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock,
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`concentrated animal feeding operation, or vessel or other floating craft, from which pollutants
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`are or may be discharged.”
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`
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`Section 309(b) of the Clean Water Act, 33 U.S.C. § 1319(b), authorizes EPA to
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`bring a civil action seeking “appropriate relief, including a permanent or temporary injunction,”
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`for violations of Section 301 of the Clean Water Act.
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`Clean Water Act Section 311(j)
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`
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`Section 311(j) of the Clean Water Act, 33 U.S.C. § 1321(j), directs the President
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`to promulgate regulations relating to oil spill prevention and response.
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`
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`The President delegated to the Administrator of EPA the authority to promulgate
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`such regulations under Section 311(j) of the Clean Water Act for discharges from non-
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`transportation-related onshore facilities. Exec. Order No. 11548, Secs. 1(e) & 9, 35 Fed. Reg.
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`11,677 (July 20, 1970); Exec. Order No. 12777, Sec. 2(d)(1), 56 Fed. Reg. 54,757 (Oct. 18,
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`1991).
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`
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`Those regulations, known as the Facility Response Plan (“FRP”) and Spill
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`Prevention Control and Countermeasure (“SPCC”) regulations, are codified at 40 C.F.R. Part
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`112.
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`The term “non-transportation-related onshore facility” for purposes of the FRP
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`and SPCC regulations includes “oil storage facilities including all equipment and appurtenances
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`related thereto.” 40 C.F.R. § 112.2 & 40 C.F.R. Part 112 Appendix A, section II(1)(F).
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`The term “discharge” for purposes of the FRP and SPCC regulations “includes,
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`but is not limited to, any spilling, leaking, pumping, pouring, emitting, emptying, or dumping of
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`oil.” 40 C.F.R. § 112.2.
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`
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`The term “navigable waters” for purposes of the FRP and SPCC regulations
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`includes, but is not limited to, traditional navigable waters and tributaries of such waters. 40
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`C.F.R. § 112.2 (1993).
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`
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`Section 311(b)(7)(C) of the Clean Water Act, 33 U.S.C. § 1321(b)(7)(C), provides
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`that any person who fails or refuses to comply with any regulation issued under subsection (j)
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`shall be subject to a civil penalty.
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`
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`Pursuant to Section 311(b)(7)(C) of the CWA, 33 U.S.C. § 1321(b)(7)(C), and 40
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`C.F.R. § 19.4, each violation of a regulation issued under Section 311(j) occurring after
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`December 6, 2013 and on or before November 2, 2015 is subject to a civil penalty of up to
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`$37,500 per day of violation; each violation occurring after November 2, 2015 is subject to a
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`civil penalty of up to $48,762 per day of violation.
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`Spill Prevention Control and Countermeasure Regulations
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`
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`Section 311(j)(1)(C) of the Clean Water Act requires promulgation of regulations
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`to establish procedures and methods for preventing and containing discharges of oil from
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`onshore facilities. 33 U.S.C. § 1321(j)(1)(C). Pursuant to 33 U.S.C. § 1321(j)(1)(C), EPA
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`promulgated the Spill Prevention Control and Countermeasures (“SPCC”) regulations for non-
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`transportation related onshore facilities, codified at 40 C.F.R. Part 112, Subparts A through C.
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`
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`The SPCC regulations apply to owners and operators of non-transportation-
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`related onshore facilities engaged in drilling, producing, gathering, storing, processing, refining,
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`transferring, distribution, using, or consuming oil and oil products that, due to their location,
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`could reasonably be expected to discharge oil in quantities that may be harmful into or upon the
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`navigable waters of the United States or adjoining shorelines. 40 C.F.R. § 112.1(b).
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`The SPCC regulations apply to facilities with an above ground storage capacity
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`greater than 1,320 gallons. 40 C.F.R. § 112.1(d)(2)(ii).
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`Harmful quantities for purposes of the SPCC regulations are defined as discharges
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`that: (a) violate applicable water quality standards, (b) cause a film or sheen upon or
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`discoloration of the surface of the water or adjoining shorelines, or (c) cause a sludge or
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`emulsion to be deposited beneath the surface of the water or upon the adjoining shorelines. 40
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`C.F.R. § 110.3.
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`
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`To prevent discharges of oil in harmful quantities into navigable waters, 40 C.F.R.
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`Part 112 requires an owner and operator of an onshore facility subject to the SPCC Regulations
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`to prepare in writing and implement an SPCC Plan in accordance with 40 C.F.R. § 112.7 and
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`other applicable sections of 40 C.F.R. Part 112. 40 C.F.R. § 112.3.
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`
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`40 C.F.R. § 112.9 sets forth additional SPCC requirements that apply to owners
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`and operators of onshore oil production facilities (excluding a drilling or workover facility).
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`“Production facility” is defined to mean “all structures (including but not limited to wells,
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`platforms, or storage facilities), piping (including but not limited to flowlines or intra-facility
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`gathering lines), or equipment (including but not limited to workover equipment, separation
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`equipment, or auxiliary non-transportation-related equipment) used in the production, extraction,
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`recovery, lifting, stabilization, separation or treating of oil (including condensate), or associated
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`storage or measurement, and is located in an oil or gas field, at a facility.” 40 C.F.R. § 112.2.
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`Facility Response Plan Requirements
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`Section 311(j)(5)(A) of the Clean Water Act, 33 U.S.C. § 1321(j)(5)(A), requires
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`the President to promulgate regulations requiring owners or operators of specified facilities to
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`submit to the President plans for responding to worst case oil discharges and a substantial threat
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`of such discharges. 33 U.S.C. § 1321(j)(5)(A).
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`
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`Facilities subject to Clean Water Act Section 311(j)(5)(A) requirements include
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`onshore oil facilities that, because of their location, “could reasonably be expected to cause
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`substantial harm to the environment” by discharging oil into or on the navigable waters of the
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`United States or adjoining shorelines (“substantial harm facilities”). 33 U.S.C.
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`§ 1321(j)(5)(C)(iv).
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`
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`Pursuant to Section 311(j)(5)(A), EPA promulgated Facility Response Plan
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`(“FRP”) regulations for non-transportation-related substantial harm facilities, codified at 40
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`C.F.R. §§ 112.20 and 112.21.
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`
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`A facility is classified as a substantial harm facility if the facility’s total oil
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`storage capacity is greater than or equal to 1,000,000 gallons, and the facility is located at a
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`distance (as calculated from the appropriate formula in 40 C.F.R. Part 112, Appendix C) such
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`that a discharge from the facility could cause injury to fish and wildlife and sensitive
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`environments. 40 C.F.R. § 112.20(f)(1)(ii)(B).
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`
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`The FRP regulations require substantial harm facilities to, inter alia, develop and
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`implement: (a) a Facility Response Plan detailing the facility’s emergency plans for responding
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`to an oil spill; (b) an oil spill response training program; and (c) a program of oil spill response
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`drills/exercises. 40 C.F.R. §§ 112.20 and 112.21.
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`The Facility Response Plan must either follow the format contained in 40 C.F.R.
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`Part 112, Appendix F, or contain the elements described in 40 C.F.R. § 112.20(h)(1)-(11). 40
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`C.F.R. § 112.20(h).
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`GENERAL ALLEGATIONS
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`M36 Facility
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`At all times relevant to this complaint, the M36 Facility was an oil and gas
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`production and storage facility located in Weld County, Colorado, identified as the State M 36-
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`ID, 17 Wattenberg Field Tank Battery.
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`
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`At all times relevant to this complaint, Noble Energy, Inc. owned and operated the
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`M36 Facility.
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`At all times relevant to this complaint, Noble Energy, Inc. was the “owner or
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`operator” of the M36 Facility within the meaning of Section 311(a)(6) of the Clean Water Act,
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`33 U.S.C. § 1321(a)(6).
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`
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`At all times relevant to this complaint, the M36 Facility was used for storing
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`condensate, natural gas, and produced water received from multiple area wells operated by
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`Noble Energy.
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`At all times relevant to this complaint, the M36 Facility had an above ground
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`storage capacity greater than 1,320 gallons.
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`
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`At all times relevant to this complaint, the M36 Facility was an “onshore facility”
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`within the meaning of Section 311(a)(10) of the Clean Water Act, 33 U.S.C. § 1321(a)(10), and
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`40 C.F.R. § 112.2.
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`At all times relevant to this complaint, the M36 Facility was an onshore oil
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`production facility (excluding a drilling or workover facility) within the meaning of 40 C.F.R.
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`§§ 112.9 and 112.2.
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`
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`At all times relevant to this complaint, the M36 Facility was a “non-
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`transportation-related onshore facility” within the meaning of 40 C.F.R. § 112.2.
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`At all times relevant to this complaint, the M36 Facility was located in a 100-year
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`floodplain approximately 400 feet from the Poudre River.
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`The Poudre River is a traditionally navigable water and is navigable-in-fact.
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`The Poudre River is a “navigable water” within the meaning of Section 502(7) of
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`the Clean Water Act, 33 U.S.C. § 1362(7), and 40 C.F.R. § 112.2.
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`
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`At all times relevant to this complaint, due to the M36 Facility’s storage capacity
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`and its location near the Poudre River, a discharge of oil from the M36 Facility could reasonably
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`be expected to cause a violation of applicable water quality standards, a film or sheen upon or
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`discoloration of the surface of the water or adjoining shorelines, or a sludge or emulsion to be
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`deposited beneath the surface of the water or upon the adjoining shorelines.
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`
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`At all times relevant to this complaint, the M36 Facility could reasonably be
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`expected to discharge oil in quantities that may be harmful into or upon the navigable waters of
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`the United States or adjoining shorelines, within the meaning of 40 C.F.R. § 112.1(b).
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`
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`At all times relevant to this complaint, the M36 Facility was subject to the SPCC
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`regulations.
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`The M36 Facility was decommissioned in April of 2019.
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`Wells Ranch Facility
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`The Wells Ranch Central Gathering Facility (“Wells Ranch Facility”) is an oil
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`and gas central gathering facility located at 32990 County Road 68, Gill, Colorado 80624.
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`From October 28, 2013, until at least January 1, 2015, Noble was identified as the
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`owner and/or operator of the Wells Ranch Facility on the Facility FRP.
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`After January 1, 2015 and continuing until the present, Noble continued to
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`manage, direct, or conduct operations at the Wells Ranch Facility, including operations related to
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`environmental compliance and pollution control. During this time period, Noble employees
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`served as the designated person responsible for environmental reporting at the Facility;
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`communicated with federal regulators on environmental compliance efforts; requested that all
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`communications regarding compliance matters be directed to Noble employees; provided
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`Facility response training; and entered into spill response contractor agreements relating to the
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`Facility. Noble also entered into an Operational Services Agreement with NMP and NMS on
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`September 20, 2016, under which it agreed to provide the personnel necessary to manage,
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`construct, design, maintain, and operate assets, including the Wells Ranch Facility.
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`Noble has been an “owner or operator” of the Wells Ranch Facility from October
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`2013 to present within the meaning of Section 311(a)(6) of the Clean Water Act, 33 U.S.C.
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`§ 1321(a)(6).
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`From approximately January 1, 2015 to present, NMS has been identified as the
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`owner/operator of the Wells Ranch Facility on the Facility’s FRP and SPCC plans.
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`NMS has been an “owner or operator” of the Wells Ranch Facility from
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`approximately January 1, 2015 to present, within the meaning of Section 311(a)(6) of the Clean
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`Water Act, 33 U.S.C. § 1321(a)(6).
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`Upon information and belief, from about September 20, 2016 to present, NMP
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`has managed, directed, or conducted operations at the Wells Ranch Facility, including operations
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`related to environmental management and compliance and pollution control.
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`Upon information and belief, NMP has been an “owner or operator” of the Wells
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`Ranch Facility from approximately September 20, 2016 to present, within the meaning of
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`Section 311(a)(6) of the Clean Water Act, 33 U.S.C. § 1321(a)(6).
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`Noble and NMS are jointly and severally liable as “owners or operators” for all
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`violations alleged in this complaint that occurred at the Wells Ranch Facility between January 1,
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`2015 and September 20, 2016.
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`Noble, NMS, and NMP are jointly and severally liable as “owners or operators”
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`for all violations alleged in this complaint that occurred at the Wells Ranch Facility from
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`September 21, 2016 onward.
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`The Wells Ranch Facility gathers, processes, and stores oil, gas, and produced
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`water received from production wells, which it then transfers off site for eventual sale,
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`processing, or recycling.
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`The Wells Ranch Facility is an “onshore facility” within the meaning of Section
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`311(a)(10) of the Clean Water Act, 33 U.S.C. § 1321(a)(10), and 40 C.F.R. § 112.2.
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`The Wells Ranch Facility is an onshore oil production facility (excluding a
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`drilling or workover facility) within the meaning of 40 C.F.R. §§ 112.9 and 112.2.
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`-13-
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`Case 1:21-cv-02165-KLM Document 1 Filed 08/10/21 USDC Colorado Page 14 of 35
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`The Wells Ranch Facility is a “non-transportation-related onshore facility” within
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`the meaning of 40 C.F.R. § 112.2.
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`The Wells Ranch Facility has the capacity to store over 6,000,000 gallons of oil in
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`above ground storage tanks.
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`At all relevant times, the largest tank at the Wells Ranch Facility has had a
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`capacity of over 370,000 gallons of oil. If not properly contained, a spill from that tank would
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`flow into the County Road 68 drainage ditch, and then into an agricultural irrigation canal known
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`as the North Side Lateral Ditch, and then into Crow Creek. From Crow Creek, such a spill would
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`flow into the South Platte River, and then take one of two possible routes: it would either enter
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`the diversion dam for the Riverside Inlet Canal and flow east to the Riverside Reservoir, or
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`continue flowing along the South Platte River in an eastward direction. Such a discharge could
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`reasonably be expected to cause a violation of water quality standards and/or a sheen on Crow
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`Creek and the South Platte River. Uncontained spills or leaks from other oil containers at the
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`Wells Ranch Facility could result in similar impacts.
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`Crow Creek is a perennial tributary of the South Platte River.
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`The South Platte River is a navigable-in-fact water.
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`The South Platte River is a “navigable water” within the meaning of Section
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`502(7) of the Clean Water Act, 33 U.S.C. § 1362(7).
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`Crow Creek is a “navigable water” within the meaning of Section 502(7) of the
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`Clean Water Act, 33 U.S.C. § 1362(7).
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`-14-
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`Case 1:21-cv-02165-KLM Document 1 Filed 08/10/21 USDC Colorado Page 15 of 35
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`The Wells Ranch Facility could reasonably be expected to discharge oil in
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`quantities that may be harmful into or upon the navigable waters of the United States or
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`adjoining shorelines, within the meaning of 40 C.F.R. § 112.1(b).
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`The Wells Ranch Facility is located at a distance such that a discharge of oil from
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`the facility could cause injury to fish and wildlife and sensitive environments, within the
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`meaning of 40 C.F.R. § 112.20(f)(1)(ii)(B).
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`Due to its oil storage capacity and location, the Wells Ranch Facility could
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`reasonably be expected to cause substantial harm to the environment, within the meaning of
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`Section 311(j)(5)(C)(iv) of the Clean Water Act, 33 U.S.C. § 1321(j)(5)(C)(iv), by discharging
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`oil into or on navigable waters or adjoining shorelines.
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`The Wells Ranch Facility is subject to the FRP regulations.
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`The Wells Ranch Facility is subject to the SPCC regulations.
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`FIRST CLAIM FOR RELIEF
`M36 Facility: Civil Penalties for Discharge of Oil in Violation of 33 U.S.C. § 1321(b)(3)
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`
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`The previous paragraphs are realleged and incorporated by reference.
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`At some time between May 25, 2014 and June 2, 2014, high flows on the Poudre
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`River inundated the M36 Facility. Floodwaters undercut the M36 tank battery, resulting in a
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`broken valve on a 300-barrel storage tank, which discharged approximately 168 barrels of
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`condensate and 5 barrels of produced water into the environment (the “M36 Discharge”).
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`
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`The M36 Discharge travelled approximately 400 feet from the tank battery to the
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`Poudre River. From the storage tank, it flowed out of secondary containment, overland along the
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`low-lying natural drainage, into wetlands abutting the Poudre River, and then reached the River
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`-15-
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`Case 1:21-cv-02165-KLM Document 1 Filed 08/10/21 USDC Colorado Page 16 of 35
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`itself. The M36 Discharge was carried to the River at least in part by hydrologically connected
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`floodwaters.
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`The discharge impacted grassland, riparian, and wetland wildlife habitats, as well
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`as approximately 395 yards of the Poudre River.
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`Condensate is a low density mixture of hydrocarbon liquids, composed of, among
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`other things, natural gas condensates or petroleum and hydrocarbons.
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`Produced water is a waste byproduct of crude oil production, which typically
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`contains water, crude oil, grease, dissolved salts, and other contaminants.
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`Condensate and produced water are each “oil” within the meaning of Section
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`311(a)(1) of the Clean Water Act, 33 U.S.C. § 1321(a)(1).
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`
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`The M36 Discharge caused a sheen upon the receiving waters and adjoining
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`shorelines.
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`
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`The M36 Discharge was in a quantity that “may be harmful” pursuant to 40
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`C.F.R. § 110.3.
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`
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`The M36 Discharge constitutes a discharge of oil into or upon navigable waters of
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`the United States and adjoining shorelines in harmful quantities, in violation of Section 311(b)(3)
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`of the Clean Water Act, 33 U.S.C. § 1321(b)(3).
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`
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`Pursuant to Section 311(b)(7)(A) of the Clean Water Act, 33 U.S.C.
`
`§ 1321(b)(7)(A), and 40 C.F.R. § 19.4, Noble Energy, Inc. is liable for civil penalties not to
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`exceed the statutory maximum per barrel discharged.
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`-16-
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`Case 1:21-cv-02165-KLM Document 1 Filed 08/10/21 USDC Colorado Page 17 of 35
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`SECOND CLAIM FOR RELIEF
`M36 Facility: Injunctive Relief for Discharge of a Pollutant
`in Violation of 33 U.S.C. § 1311(a)
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`The previous paragraphs are realleged and incorporated by reference.
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`The storage tank at the M36 Facility from which the M36 Discharge originated is
`
`
`
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`
`
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`a “point source” within the meaning of Section 502(14) of the Clean Water Act, 33 U.S.C.
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`§ 1362(14).
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` Condensate and produced water are each “pollutants” within the meaning of
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`Section 502(6) of the Clean Water Act, 33 U.S.C. § 1362(6).
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` The M36 Discharge was not authorized by any Clean Water Act permit.
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` The M36 Discharge constitutes an unauthorized discharge of a pollutant from a
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`point source to navigable waters, in violation of Section 301(a) of the Clean Water Act, 33
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`U.S.C. § 1311(a).
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` Noble Energy, Inc. is subject to appropriate injunctive relief pursuant to Section
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`309(b) of the Clean Water Act, 33 U.S.C. § 1319(b), to prevent further discharges in violation of
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`the Clean Water Act.
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`THIRD CLAIM FOR RELIEF
`M36 Facility: Civil Penalties for SPCC Violations
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` The previous paragraphs are realleged and incorporated by reference.
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` Noble is required to prepare in writing and implement an SPCC Plan for the M36
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`Facility. 40 C.F.R. § 112.3.
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` From at least March 30, 2012 until at least April 2, 2019, Noble Energy, Inc.
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`failed to have an SPCC Plan for the M36 Facility that met the requirements of the SPCC
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`Regulations, 40 C.F.R. Part 112.
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`-17-
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`Case 1:21-cv-02165-KLM Document 1 Filed 08/10/21 USDC Colorado Page 18 of 35
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` On March 30, 2012, Noble Energy, Inc. certified an SPCC Plan for the M36
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`Facility (the “2012 M36 SPCC Plan”). The 2012 M36 SPCC Plan was in effect at the time of the
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`M36 Discharge in 2014.
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` The 2012 M36 SPCC Plan failed to comply with the SPCC regulations:
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`a.
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`it failed to identify the measure or measures used to prevent discharges
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`from tank batteries, as required by 40 C.F.R. § 112.9(c)(4); and
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`b.
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`it contained an oil spill contingency plan that failed to follow 40 C.F.R.
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`Part 109, as required by 40 C.F.R. § 112.7(d)(1), in the following ways:
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`i. it failed to adequately define the authorities, responsibilities, and duties
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`of all persons, organizations, or agencies involved in oil removal
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`operations by only listing two people as the entire spill response team
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`with contractor support, in violation of 40 C.F.R. § 109.5(a);
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`ii. it failed to identify critical water use areas, or the order of priority for
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`protecting water uses, 40 C.F.R. § 109.5(b)(1), (d)(5);
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`iii. it failed to identify who will make a request for federal disaster
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`assistance, in violation of the requirement in 40 C.F.R. § 109.5(b)(4) to
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`establish a prearranged procedure for requesting federal disaster
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`assistance;
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`iv. it failed to identify the quantity of response materials onsite, in violation
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`of requirement in 40 C.F.R. § 109.5(c)(1) to inventory available
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`equipment, materials, and supplies for oil spill response;
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`-18-
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`Case 1:21-cv-02165-KLM Document 1 Filed 08/10/21 USDC Colorado Page 19 of 35
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`v. it failed to estimate the equipment, materials, and supplies required to
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`remove a maximum oil discharge, in violation of 40 C.F.R.
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`§ 109.5(c)(2); and
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`vi. it included an incomplete identification of the oil discharge response
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`operating team, in violation of 40 C.F.R. § 109.5(d)(1).
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` Each deficiency in the M36 2012 SPCC Plan is a violation of 40 C.F.R. Part 112.
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` After the M36 Discharge, Noble removed and reconfigured tanks at the M36
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`Facility, before ultimately decommissioning the Facility in April of 2019. Actions included the
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`replacement of tanks during the July 2014 to December 2014 time frame. The removal and
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`reconfiguration of tanks at the M36 Facility materially affected the Facility’s potential for a
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`discharge.
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` Noble did not amend the M36 2012 SPCC Plan to reflect the removal and
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`reconfiguration of the tanks at the M36 Facility at any point prior to April 2019, in violation of
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`40 C.F.R. § 112.5(a).
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` Because Noble did not amend the M36 2012 SPCC Plan to reflect facility
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`changes, it also failed to obtain review and certification by a Professional Engineer of the
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`amendments, as required by 40 C.F.R. § 112.5(c).
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` Pursuant to Section 311(b)(7)(C) of the Clean Water Act, 33 U.S.C.
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`§ 1321(b)(7)(C), and 40 C.F.R. § 19.4, Noble Energy, Inc. is liable for civil penalties not to
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`exceed the statutory maximum per day for each violation of the SPCC regulations.
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`-19-
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`Case 1:21-cv-02165-KLM Document 1 Filed 08/10/21 USDC Colorado Page 20 of 35
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`
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`FOURTH CLAIM FOR RELIEF
`Wells Ranch Facility: Civil Penalties for Failure to Develop and Implement a
`Facility Response Training Program and Drills/Exercises Program
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` The previous paragraphs are realleged and incorporated by reference.
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` Defendants are required to develop and implement a facility response training
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`program for the Wells Ranch Facility to train personnel involved in oil spill response activities,
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`in accordance with 40 C.F.R. § 112.21(a) and (b).
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` Defendants are required to develop and implement a drill/exercise program for the
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`Wells Ranch Facility that meets the requirements of 40 C.F.R. § 112.21(a) and (c). The program
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`must follow the National Preparedness for Response Exercise Program (“PREP”) Guidelines, or
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`an alternative program that has been approved by the Regional Administrator for EPA Region 8.
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`40 C.F.R. § 112.21(c).
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` Two versions of the PREP Guideli
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