Sunday, August 19, 2012

Governor Muzzles Staff to Help Industry Weaken New Mexico Pit Rule

Between the mid-1980's and 2003, New Mexico’s Oil Conservation Division recorded nearly 7,000 cases of oil and gas waste pits causing soil or water contamination. In 2005, the OCD released data on nearly 400 incidents of groundwater contamination, including the presence of carcinogens and heavy metals.
Unlined pits damage people’s water supplies, kill livestock and wildlife, and endanger New Mexicans’ health.

In 2008 the OCD recommended, and the Oil Conservation Commission adopted, a strong "pit rule" that banned unlined pits, strengthened pit-liner requirements, ordered better protection of private property and water, and required closed-loop (pitless) operations close to water and homes. The rule followed an 18-month process that included industry participation.

Now Governor Susana Martinez wants to eviscerate the pit rule, and one of her minions is muzzling the state officials in charge of analyzing the proposed weakening of the rule. This would suit oil and gas industry political contributors, but is not in New Mexico’s interest.

The proposed changes rip the guts out of the pit rule. Below-grade tanks with more than a 500-gallon capacity would no longer require a permit. Operators would merely have to "register" and could "file a single registration for all below-grade tanks." Instead of requiring a permit, letting state regulators assess the reasonableness of an operator’s plan, the industry-proposed wording says vaguely, "A closed-loop system shall use appropriate engineering principles and practices." What might that mean to an operator scrambling to maximize profits?

The existing rule says you can’t put a temporary pit or below-grade tank within 500 feet of a private water well or a spring from which people or cattle drink. The industry’s proposed change would allow below-grade tanks as close to your water well as the operator likes; and for a temporary pit, the minimum distance would shrink from 500 feet to 100 feet. Industry would also delete the requirement that "The operator shall use a tank made of steel or other material which the appropriate division district office approves, to contain hydrocarbon-based drilling fluids."

Essentially, the industry proposes a return to oil industry self-regulation.

Carl Johnson, 74 testified to the OCC in May concerning damage he’s seen first-hand. The Lea County rancher said that under the pit rule, companies have been "more careful, less destructive. They use less water. They are totally, absolutely different than when they had the open pit rule."

Johnson added, "There’s a right way and there’s a wrong way. Oil industry knows it. There are good operators and there are lousy operators. I’d say 10 percent are good operators." Those aren’t good odds for letting the oil industry regulate itself.

One of the "decision-makers," Martinez appointee Jami Bailey, not only has voiced her opposition to the pit rule, but is abusing her position by muzzling the state watchdogs who recommended the rule. (Ms. Bailey knows staff would rather speak up about the pit rule’s importance. "Some OCD personnel would like a more active role," she wrote.)

The rule exists because OCD staff needed it to protect our environment against industry carelessness. But by Bailey’s direct order, the Commission will not have the benefit of staff views this time around. Bailey has ordered staff to be "neutral" – that is, not take a position, but stick to "operational and administrative issues."

That’s like a President telling the CIA not to report its findings and analysis because s/he knows what s/he wants to do and facts or expert analysis might muddy the waters

Do the states experts think the proposed changes would be technically feasible or would adequately protect clean water and human health? Guess we won’t know. Ms. Bailey has directed them not to put those opinions on the record – because those opinions, and the facts and analysis behind them, might be inconvenient for her and Governor Martinez.

These folks have their minds made up. Martinez’s Director of Policy made that clear in a 2011 summary of "examples of changes made" by Martinez: "Working to reverse the pit rule amendment. . . The authority to change this rule rests with the Oil Conservation Commission. With a composition that is more favorable to the industry, we expect this rule to be reversed."

Less honestly but with a better PR sense, Ms. Bailey suggested changing that to: "working to have the Pit Rule re-evaluated for balance between encouraging the oil and gas industry and protecting the environment. Both are important to the state of New Mexico, and the Governor has ensured that Oil Conservation Commission is committed to finding that balance through science-based regulations and sound judgment."

I’m hoping my fellow New Mexicans will speak up on this issue partly to show Governor Martinez we’re not that stupid, and will look to what she does, not what words she uses to disguise bad conduct.

You can and should call or e-mail her.   You can contact the Governor's Office by phone at (505) 376-2200; or you can leave a written comment at
If you feel like making one more call, make your comment also to John H, Bemis, Secretary of Energy, Minerals & Natural Resources Dept. (505) 476-3200.

(You don’t have to read as much as I did on the subject; but my blog post today contains links to sources of much of this information, including testimony and reports, and a NMOGA site showing the specific changes industry wants.)

This may not seem urgent, unless you have a water well in oil country; but the rights and wrongs are inescapable. Please speak up!


[The foregoing column appeared this morning, Sunday, 19 August, in the Las Cruces Sun-News.  Below, I've added some links to relevant web-sites on both sides of the issue, as well as supplemental comments for which there wasn't room in the column.]

What struck me about the New Mexico pit rule was that the rights and wrongs were probably clearer than in just about any subject I've looked into as column material. 

Initially I heard someone speak briefly on the subject.  I started researching it, and quickly read both some posts from environmentalists and the New Mexico Oil and Gas Association's site.  The latter discussed the proposed changes as "based on sound science" and committed to "maintain[ing] environmental safeguards." . .  
That sounded reasonable.  It certainly seemed possible that overzealous regulators had imposed unnecessarily stringent rules on the industry.   So I started reading the red-lined version of the proposed rule.   It was quickly clear that the NMOGA gloss was sheer nonsense, and that the proposed changes would eviscerate the rule and leave industry free to do pretty much as it chose.  (The red-lined "proposed changes" document starts at page 5 of this document.this document .

The ostensible reason for all this was also nonsense: that drilling was down in New Mexico.  However, 
economists and even industry spokesfolk say worldwide oil prices determine drilling decisions. The number of operating rigs in NM continued to increase for six months after adoption ofthe pit rule, and declined only once worldwide oil and natural gas prices dropped sharply.

I haven't read all the testimony, but it appears that the industry hasn't even made it clear that lining the pits doesn't ultimately save the industry money, long-term, particularly when you factor in possible liability and clean-up costs.  At least one expert says that's the case.  I don't know; but if the industry can't prove that this important rule causes it real and significant difficulties, why should anyone even consider weakening it?  Among the sites with relevant information on the pit rule and its importance are Earthworks Action and its Oil and Gas Accountability Project.

The pit rule places the responsibility on oil and gas operators to clean up their contamination -- rather than making us pay for it.  The changes relax contamination standards and allow multi-well fluid management pits, which are potentially huge "artificial lakes."  NMOGA wants to treat them like temporary pits (where fluids and solids go temporrarily during production), which currently have to be closed within six months (a year under the proposed change); but multi-will pits could be open for a decade, and unlimited in size.

One further point no one mentions: sooner than we wish, water may become scarcer and more valuable than oil, in New Mexico.  Governor Martinez may be too dumb to know that or, more likely, politically unable to mention knowing it; but it's true, and thus it's particuarly important, now more than ever, not to risk fouling water supplies for the convenience of the oil and gas industry, particularly where the existing rule is one the industry can live with.

So I do hope folks will speak up.  The web-site makes it easy to leave a brief comment. Whether the governor's office will read 'em, much less heed 'em, is another question; but we might as well try.   (Certainly for the next few weeks when folks tell me how much they like the column or the blog, they can expect my reaction, rather than, "Oh, Thanks," to be "Have you left a comment with the Governor's Office concerning the pit rule?")

For the record, I tried the comment site and left this comment last week:

Subject: New Mexico Pit Rule
Message: I strongly oppose the effort by the oil and gas industry to eviscerate the pit rule. Despite NMOGA's web-site's claims that the proposed changes are "scientific," they clearly are a laundry list of what's convenient for industry, without regard to water supplies and the environment. I further oppose the move by your appointee Jami Bailey to muzzle Oil Conservation Division staff, telling them they may not offer substantive testimony concerning the strong pit rule's importance.

by the way: I'll have a small photo show up in September at the Rio Grande Theatre Gallery on Main St. -- opening will be Friday 7 September, during the 5-7 p.m. Art Ramble.  Mostly photographs from outside the U.S.

1 comment:

  1. Thanks, Peter. Good article in Sun-News