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Changes in Pit Rule Unlikely This Session

By Deborah Baker
Journal Staff Writer
          The oil and gas pit rule has been a punching bag for the industry, a rallying cry for gubernatorial candidates and a boogeyman for Oil Patch lawmakers.
        But the only action at the Capitol specific to the issue as the 60-day session neared its midpoint was a lunchtime lemonade stand.
        There, youngsters handed out free pink drinks Monday with labels warning that without "common-sense" safeguards such as the pit rule, water could contain dangerous contaminants.
        No bill has been introduced to overturn the pit rule, which regulates the waste from drilling operations.
        First of all, the pit rule issue is tied up in court.
        Oil and gas producers sued after the rule was approved, and that challenge is pending in state District Court in Santa Fe.
        Also pending — and also before state District Judge Barbara Vigil — is a lawsuit brought by pit rule proponents after state regulators made alterations to the rule that they say rolled back its protections.
        Second, there appears to be widespread agreement that legislation is not a feasible way to undo the rules that were enacted administratively, by a state agency.
        Lawmakers could change the statute that authorizes the issuance of such rules, but they couldn't reach back and do away with the rule adopted in 2008, industry representatives say.
        "The cleaner fix is a change of rule," said Karin Foster of the Independent Petroleum Association of New Mexico.
        Changes could be proposed by the administration of Republican Gov. Susana Martinez — who made the pit rule a campaign issue last year — for consideration by the Oil Conservation Division of the Energy, Minerals and Natural Resources Department.
        And the pit rule has become such a political hot potato that getting a bill through would be difficult, Foster also said.
        Still, the pit rule's supporters are keeping a wary eye on several bills that would overturn other rules or shift or reduce regulatory authority.
        "We see all of these bills as a backdoor attempt at getting at the pit rule eventually," said Gwen Lachelt of the Oil and Gas Accountability Project, one of the organizations behind the lemonade stand.
        OGAP and other proponents of the rule say pit wastes are toxic and the rule reduces contamination.
        Some lawmakers favor outright abolition of the rule.
        House Republican Leader Tom Taylor, R-Farmington, contends that it has no scientific basis but rather is the legacy of an anti-drilling administration headed by former Democratic Gov. Bill Richardson.
        But industry representatives say a more flexible rule that gets rid of "one size fits all" regulation — and takes into account who's drilling, what they're drilling and where they're drilling — is desirable.
        "Industry doesn't quote-unquote want to get rid of the pit rule, " said Deborah Seligman of the New Mexico Oil and Gas Association. "I think more than anything else they want a stable regulatory arena."
        Foster said she had discussed pit rule revisions with Harrison Schmitt, Martinez's nominee for energy secretary until he withdrew last week.
        "Obviously, when the new energy secretary gets named, I'll have that conversation again," she said.
       





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