A new online map shows where spills and leaks of oil, natural gas, wastewater and toxic chemicals are occurring in New Mexico. The nonprofit Center for Western Priorities scraped data off the state's Oil Conservation Division's website and has just launched its New Mexico Toxic Release Tracker. That interactive map shows that in the first three months of 2014, oil and gas companies reported 139 spills in New Mexico. Over the past 13 years, the industry reported more than 10,300 spills.
Those individual spill reports are available on the government website. But the center wanted citizens to see the bigger picture. "The database isn't able to show where these things are happening, but they do include the longitude and latitude, so we could put them on a map," says Greg Zimmerman, the center's policy director. "This way, folks in New Mexico have an idea of what's going on with oil and gas development."
What many New Mexicans might not know, however, is that the state can't actually hold violators accountable.
Any spill over five barrels—210 gallons—must be reported, says the New Mexico Oil & Gas Association's (NMOGA) Wally Drangmeister. Yet, he says there's "great incentive" to clean up a spill properly, even when it's fewer than five barrels.
"The oil and gas industry is a very close-knit community: The employees, service companies, operating companies all know each other, and it's not like there are any secrets," he says, adding that avoiding or delaying spill cleanup only proves to be more difficult and expensive in the long run.
"We have a Good Neighbor Program in NMOGA, and our operators commit to operate in a responsible fashion. And while not every oil and gas company is a member of NMOGA, there's very practical ways for people to do that," he says. "Is (reporting) a 100 percent complete process? I can't sit here and tell you there's not an unscrupulous operator out there that at one time or another hasn't reported."
Attempts to interview officials at the Oil Conservation Division were unsuccessful, but according to an emailed statement, the division does perform inspections and follow-up visits, and its inspectors respond to complaints and notifications from the public. When there are serious spills or negligence on the part of industry, those officials can't issue compliance orders or levy penalties, however.
In 2009, the New Mexico Supreme Court ruled in favor of Marbob Energy Corporation, which had sued under the premise that the Oil Conservation Division couldn't assess civil penalties and sanctions against the company. The court ruled that the division should report violations to the New Mexico Office of the Attorney General, which would then sue to collect penalties for violations.
But that's never happened in practice. New Mexico Assistant Attorney General Tannis Fox says the division has not referred a single violation to the AG since the ruling.
Even if it had, enforcement under the 1935 New Mexico Oil and Gas Act is tricky.
Under that law, civil violations are held to a criminal standard that requires the state to prove a violation was intentional. But Fox says most environmental violations occur by accident. She points out that between 2010 and the summer of 2013, state inspectors found 3,600 violations related to oil and gas drilling—none of which have resulted in fines or penalties.
"The enforcement mechanism of the Oil and Gas Act is completely out of step with current practices, statewide and nationally," says Fox. "It is a gaping hole in environmental enforcement in New Mexico."
During the 2013 session of the New Mexico Legislature, Rep. Gail Chasey and Sen. Michael Sanchez, both Democrats from the Albuquerque area, introduced a bill would have eliminated the "knowingly and willingly" requirement and increased penalties for violations of the act to $10,000 per day for unauthorized discharges.
Currently, the maximum penalty is $1,000 per violation. Compare that with violations of the state's Air Quality Control Act, the Water Quality Act or the New Mexico Mining Act, violations of which carry fines from $10,000 to $15,000 per day. The state's Energy, Minerals and Natural Resources Department —which oversees the Oil Conservation Division—opposed the bill, as did the industry, and it died in the House.
Whipping Out the Back Door
In 2010, Ray Powell was re-elected as New Mexico's State Land Office commissioner after an eight-year hiatus from the job. One of his first challenges included a 10-million-gallon spill of oil field brine in the southeastern corner of the state. The company hadn't reported the spill. Rather, it was noticed during a medivac flight and reported to the OCD in October 2010.
"We've got one field person per million acres," says Powell. "That's insane." The State Land Office pools its resources, he says, with the New Mexico Department of Game and Fish and federal agencies like the US Bureau of Land Management—which has 57 oil and gas field inspectors statewide—and the Natural Resources Conservation Service. "I don't have one enforcement person in our agency. That's all farmed out," he says. "So we're trying to develop a set of eyes and ears that will complement that."
In the last three years, the state has seen record revenues from oil and gas, but Powell says lawmakers don't send much cash to improve damaged state land. Without spending money for remediation and mitigation of problems, he says, the land "just continues to degrade," says Powell. "If you're not paying attention, things can whip out that back door. And once that land is gone, it's gone."
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