We need to strengthen the Pit Rule, not do away with it

Gwen Lachelt

Gwen Lachelt

Governor Martinez and her Oil Conservation Commission should be seeking ways to strengthen protections instead of doing away with the Pit Rule altogether.

Last week, Governor Martinez’s Oil Conservation Commission considered whether to weaken or eliminate a safeguard that protects our drinking and groundwater from toxins. Called the Pit Rule, it was passed in 2008 in response to over 400 reports of groundwater contamination from the oil and gas drilling process. Passing this rule was no small task.

A rulemaking involves a thoughtful stakeholder process and public hearing – a thoughtful process to develop commonsense rules that prevent and minimize the social, environmental and economic impacts of oil and gas development. The Pit Rule was no exception – it was adopted in 2008 after an 18-month process that included diverse stakeholder input and 17 days of public hearings.

With such thorough hearings already conducted, there is ample information available to the commission that supports the adoption and implementation of the Pit Rule. However, in a strange twist, Jami Bailey – the chair of New Mexico’s oil and gas oversight agency – would not admit the 8,000 pages of testimony and exhibits put forward in the hearing held in 2007 to develop the Pit Rule. The reason? She claims this is a whole new rule.

At the same time, industry also claims that this hearing is simply amending the Pit Rule. How can it be both ways?

Not your granddaddy’s oil and gas waste pit

In recent weeks, several articles and reports have been released that only further emphasize how critical protections like the Pit Rule are to New Mexico.


One article by The Santa Fe New Mexican stated that while New Mexico has over 100,000 oil and gas wells, it has fewer than 100 inspectors to monitor them. The article goes on to say that, “…with so many wells to check, (the inspectors) are lucky to get to each well once every three years.” Without adequate experts and staff keeping an eye on the drilling process, protections like the Pit Rule serve as a critical safety net to ensure that the oil and gas industry is operating in a responsible manner.

But now, the oil and gas industry aims to change that by including significant changes in the proposed “amended” rule, including the development of multiple, multi-well pads (up to two miles apart) using a centralized pit for produced fluids.

To be clear, what is being proposed is not your granddaddy’s oil and gas waste pit – it is more like a lake. Industry wants no limit on the size of these gigantic pits. In New Mexico, these would be considered “jurisdictional dams.” These enormous waste reservoirs would be nearly impossible to isolate from livestock, wildlife and migratory birds.

Unfortunately, the consequences of exposure could be dire. Similarly huge impoundments have already driven residents from their homes due to odors and health problems in states like Pennsylvania. Is this something we want in New Mexico?

We can’t afford such careless development

Currently, jurisdictional dams must be approved by the Office of the State Engineer. But in this rushed five-day hearing to “amend the Pit Rule,” industry wanted Jami Bailey and the 3-member Oil Conservation Commission to agree that jurisdictional dams are just bigger pits and don’t need approval or permit from the state engineer. With the shale oil and gas development boom on the horizon in New Mexico, we can’t afford such careless development.

Even if state engineer approval is mandated, it won’t ensure that oil and gas operators will be appropriately held accountable for rule violations – especially if the Pit Rule is weakened. A report released last week by the Oil and Gas Accountability Project revealed that even in situations where violations were identified by inspectors, there was a clear lack of consistency in violation assessments and enforcement actions. In some cases, enforcement actions actually varied widely from inspector to inspector – creating the opposite of regulatory certainty.

Governor Martinez and her Oil Conservation Commission should be seeking ways to strengthen protections to address these concerns and more instead of doing away with the Pit Rule altogether.

Lachelt is the founder and director of Earthworks’ Oil & Gas Accountability Project.


  1. Experienced says:

    Companies drill more in Texas because there is more oil there and greater infrastructure to support the industry.  If regulatory onus was really a deciding factor, more companies would drill in NM because the lack of OCD staffing means little chance you would get “caught” if you were in violation of the Oil & Gas Act, and thanks to the Marbob decision a few years back by the NM Supreme Court there is no practical penalty for doing so.

  2. Experienced says:

    Dr J sez:
    “…the jet fuel spill at Kirkland has now grown to over 24 million gallons, or about twice the size of the Exxon Valdez oil spill.  And it is right in the middle of our largest NM city.  Why does this only merit a small aside in most press media, while this pit rule has huge amounts of outrage and press?  Is that consistent enviros?  Or is it all about politics and not the environment at all?”

    What?  If the press does not cover something adequately in your opinion, its the greenies fault?  Besides, I think quite the opposite is true.  The Kirtland situation has received much more attention from the Albq. Journal and local TV than the proposed pit rule amendments.  By the way, I’m someone who feels many of the amendments are reasonable.

  3. Dr. J says:

    This may help you out otis:


    Texas has much better common sense regulations than NM.  And that is why, all else being equal, operators will drill in Texas over NM. 

  4. Dr. J says:

    I find it interesting that some people are always so quick to accuse evil oil of wrongdoing and attack from many enviro-lobby fronts when these same groups ignore even worse environmental disasters.  Case in point, the jet fuel spill at Kirkland has now grown to over 24 million gallons, or about twice the size of the Exxon Valdez oil spill.  And it is right in the middle of our largest NM city.  Why does this only merit a small aside in most press media, while this pit rule has huge amounts of outrage and press?  Is that consistent enviros?  Or is it all about politics and not the environment at all?

  5. Hemingway says:

    The idea perpetuated by disreputable politicians that the pit rule is driving oil companies out of New Mexico is utterly preposterous. In fact the  averaged annual counts of drill rigs operating in New Mexico are slightly higher now than they were before the pit rule, according to state data compiled on GO-TECH, a website of the Petroleum Recovery Research Center in Socorro, NM despite the economic recession. 

  6. Hemingway says:

    Here is a ten page list of contamination of New Mexico water prepared by the New Mexico Oil Conservation Division from 2008
    Here is a recent Bloomberg article on the lack of oil and gas enforcement in New Mexico.
    We need to safeguard our water – bottom line.

  7. otis says:

        I’d like to hear from the Oil and Gas industry whether or not New Mexico’s pit rule is more or less restrictive than other states. My guess is that if we had this information we, as citizens, would much better be prepared to decide if the pit rules are reasonable or not. If other states enjoy groundwater protections that are above our standards and still enjoy a robust drilling activity the argument that the rules harm drilling would stand as rather false. I wonder why we don’t see this comparison made by the O & G industry?

  8. lealeith says:

    Dr. Swickard,
    The number 400+ came from testimony by one of the Bureau Chiefs of NM’s Oil Conservation Division (see Pit Hearing document 14015_486_cF, pgs 351-352).  This was just the number of known cases in recent years in New Mexico that could be directly linked to poorly-maintained oil and gas waste pits.  (the number 421 was used in an email from an OCD staffer to me).

    As Ms. Lachelt has explained in detail elsewhere, however, most of these known contamination cases were self-reported by the industry.  There were almost certainly more problems than that–but until the pit rule, most pit wastes were buried in place and testing wasn’t required to determine if they had leached contaminants.  But in addition to the 400+, at the time of the original pit rule hearings, another 100+ cases were under investigation.  

    That’s a shocking number of documented cases of pit waste contamination in New Mexico, just in the years running up to the adoption of the pit rule…   Given that rather disturbing picture, why would anyone argue against strengthening the pit rule, let alone maintaining it as currently written?

  9. Hemingway – it is an interesting Youtube, but it cannot happen in New Mexico. If you do not know why, it means you are clueless about the New Mexico oil patch and are just spouting stuff with no understanding. The type of petroleum in the video is not found in New Mexico, hence, those procedures are not done here in the state. That product called extra heavy crude oil (API gravity less than 20) is not the type of crude in New Mexico. Further, the majority of oil wells in our state are stripper wells with an entirely different set of challenges and procedures. They are financially fragile and quite sensitive to production cost issues since they do not pump like regular wells. And, the gas in the Four Corners area cannot be drilled horizontally due to technical structure issues so the dialog about new techniques is not applicable. Being unable to horizontally drill makes the gas wells in New Mexico less competitive, hopefully people won’t make them even less competitive with unnecessary rules.
    The author wrote: “Called the Pit Rule, it was passed in 2008 in response to over 400 reports of groundwater contamination from the oil and gas drilling process.”
    Let us revisit those over 400 reports of groundwater contamination from the oil and gas drilling process. Did they happen in New Mexico with our unique petroleum products? Let us see a link so we can confirm these as New Mexican problems. If they are tied to the California heavy crude oil problem then they has no bearing in New Mexico.
    Lastly, remember the tax money from Oil and Gas goes to education, be careful with the heartbeat of our state. No, I do not want to contaminate water, but if this is just scare tactics, don’t make the students of New Mexico pay for the political action.

  10. Dr. J says:

    pauleichhorn says:  “What’s the matter with these Republicans?”  I guess they are just all evil, greedy, unfeeling, destructive monsters out to destroy the earth and all her inhabitants.

  11. Hemingway says:

    If there are too many regulations in America, maybe it is time to move to Tokelau a tiny self-governing country near New Zealand. It is a Utopia with the fewest  laws of any country  and minimum government. It has only 1,500 people. It also has the smallest economy in the world. There are no cars. This is an ideal place for people who oppose any regulation.
    Here is a description of their government.
    They have serious water problems.  However  that should be  no problem for people who oppose any regulation to protect New Mexico water.
    Here is a dream country for anti-government advocates. As Tokelau residents say to foreign visitors ——— “Malo ni/Taloha”(Hello)!!!


  12. Dr. J says:

    Well here we have yet another non-objective, politically motivated, and partisan agenda driven organization telling us what to think and that the solution to all our problems is more regulations, more regulators, more government spending, and bigger government.  No surprise one of the founders of this group was a Udall.

  13. Hemingway says:

    This is an outstanding commentary on the pit rule. Water is a precious commodity!
    Here is what is happening in Bakerfield CA – water contamination. Is this what Governor Martinez and her Oil Conservation gang want for New Mexico?
    At present New Mexico has only 12 state inspectors to oversee over 50,000 producing wells. This alone almost guarantees irresponsible oil and gas development.

  14. pauleichhorn says:

     Living in the high desert, if we contaminate our ground water we are screwed. Totally. What’s the matter with these Republicans?