New Mexico Oil Conservation Commission Shuts Down Environmental Testimony at Pit Rule Hearing by Earthworks and New Mexico Environmental Law Centre, January 10, 2013
Rejection of Expert Witnesses Part Of National Trend To Avoid Truth About Oil & Gas Development Impacts
Today, the New Mexico Oil Conservation Commission concluded a public hearing on proposed amendments to the oil and gas waste pit regulation (the Pit Rule) without allowing conservation groups to testify. Expert technical witnesses offered by the New Mexico Environmental Law Center (NMELC) were not permitted to comment on the potential effects that burying toxic waste products from oil and gas drilling in the ground would have on the state’s groundwater and public health. … “The Commission’s decision not only undermines the goal of maximizing the amount of information the Commission, as a policy making body, receives about this important environmental and public health issue,” says Jantz, “but it also disrupts the democratic process and public participation.” “Irony aside, blocking testimony on a public health issue at a public hearing is part of an unfortunate trend across the country to avoid emerging science concerning the impacts of oil and gas development,” said Earthworks’ Oil & Gas Accountability Project Director, Bruce Baizel. “In New Mexico, Colorado, and New York, industry and its advocates have recently attempted to obstruct input into public rulemakings regarding the environmental and health impacts of oil and gas development. You have to ask yourself, what are they afraid of? We think the answer is: the truth.” The Commission will now continue deliberations on the Pit Rule. “We hope the Commission will do the right thing and preserve the Pit Rule as it is,” says Jantz. “However, we’re not counting on that. We are prepared to challenge any decision on the Pit Rule that rolls back public health and environmental protections.” [Emphasis added]
Hearing officer decision to deny motion to dismiss BEFORE THE OIL AND GAS CONSERVATION COMMISSION OF THE STATE OF COLORADO IN THE MATTER OF CHANGES TO THE RULES OF PRACTICE AND PROCEDURE OF THE OIL & GAS CONSERVATION COMMISSION OF THE STATE OF COLORADO CAUSE NO. 1R, DOCKET NO. 1211-RM-04, January 6, 2013
On January 3, 2013, the Colorado Oil and Gas Association (COGA) and the Colorado Petroleum Association (CPA) filed motions to strike exhibits and motions in limine to exclude evidence submitted by the Colorado Environmental Coalition et al. and Western Colorado Congress et al. Motions to join in COGA’s and CPA’s motions were filed by Bill Barrett Corp., APC, Noble, PDC, Encana, the Colorado Cattlemen’s Assn., the Colorado Farm Bureau and the Colorado Assn. of Homebuilders.
COGA and CPA contend that virtually all of the written testimony and exhibits submitted in this rulemaking by the Conservation and Community Groups should be stricken from the record and the vast majority of their witnesses be barred from testifying at the hearing. COGA and CPA believe that under the Colorado Rules of Evidence (CRE) and the Oil and Gas Conservation Commission Rules of Practice and Procedure, none of the evidence they seek to strike or exclude is admissible at hearing and must be expunged from the rulemaking record. …
COGA and CPA misapprehend the fundamental distinction between an administrative rulemaking proceeding and a civil action. Strict compliance with the CRE in the context of an agency rulemaking is antithetical to the applicable provisions of the APA and the Commission rules. Those provisions focus on procedural flexibility and evidentiary inclusiveness. COGA and CPA argue that a CRE catchall provision for “special statutory proceedings,” mandates compliance with the CRE in this rulemaking. See CRE 1101(e). That CRE provision, however, applies only when “matters of evidence are not provided for in the statutes which govern the procedures” at issue. Id. Under the APA and Commission rules relating to rulemaking proceedings, evidentiary matters are addressed to the extent necessary to conduct agency business in a less formalistic environment. Thus, CRE 1101(e) is inapplicable to this proceeding. This rulemaking was initiated in an effort to address some of the nuisance impacts associated with existing setbacks for oil and gas operations that are affecting the public’s welfare and quality of life.See Amended Notice of Rulemaking. Much of the testimonial evidence submitted by citizens was not proffered as expert testimony but rather as personal statements about the impact (whether real or perceived) that oil and gas development is having on their lives. Such testimony is relevant and has probative value to the reasonable and prudent Commissioner striving to understand and address these impacts in the context of this rulemaking hearing.
Similarly, submissions proffered by attorneys or other party representatives or members who lack the credentials to qualify them as scientific, medical, public health or other experts, still retain probative value by providing the Commission with insight into the bases of dissatisfaction with the existing setback rules and proposals for improvement. The Commission, using a common sense approach to evaluate this evidence, is fully capable of assessing the credentials and credibility of each witness and affording the testimony the weight it is due. The Commission can perform the same analysis as to the exhibits to determine the appropriate weight they should be afforded.
The Hearing Officer therefore recommends that COGA’s and CPA’s motions to strike or exclude the testimony and exhibits of the Conservation and Community Groups be denied. Specifically, the Hearing Officer recommends that the request by COGA and CPA to strike and exclude certain evidence because it contains improper lay opinion, hearsay, abusive, harassing, irrelevant, or cumulative testimony, or is irrelevant, duplicative, unauthenticated, or incomplete should be denied. Finally, the Hearing Officer recommends that no written qualification be attached to any testimony or exhibits submitted by the Conservation and Community Groups and that such evidence be admitted into the administrative rulemaking record for this matter. [Emphasis added]
Oil and gas lawyers want residents banned from talking at rule hearing by Bruce Finley, January 4, 2013, The Denver Post
Oil and gas industry lobbyists are maneuvering to block Coloradans who live near drill sites from talking about their experiences during a rule-making hearing next week. Colorado Oil and Gas Association and Colorado Petroleum Association legal motions argue that state laws and procedural rules bar state commissioners from hearing written or oral testimony from the residents because it would be improper, “abusive and harassing” or irrelevant. State legal advisers to the Colorado Oil and Gas Conservation Commission on Friday evening did not immediately make a decision. Conservation groups called on Gov. John Hickenlooper to let residents testify. Later Friday, the Colorado Farm Bureau, Colorado Association of Homebuilders and Colorado Cattlemen’s Association filed similar motions to block residents.
“Where oil and gas development has occurred, we have seen compromised systems and human error resulting in injury, death, loss of quality of life and land values, and pollution (of) our water air and soil,” Garfield County resident Tresi Houpt said in her written testimony. Houpt formerly served as a state oil and gas commissioner and as a county commissioner. As county commissioner, she received persuasive evidence that residents near oil and gas operations developed health problems and that air, land and water deteriorated, Houpt said. Several studies documented problems, she said, only to be challenged by the industry. The industry effort to block testimony “indicates to me they have a concern that some valid arguments will be made,” she said Friday. “We know it is heavy industrial activity, that there are dangerous chemicals used. Although there’s not scientific data in place, practically speaking we know peoples’ lives have been impacted tremendously.” Industry objections “are made in bad faith. Every impacted person should have the opportunity to speak,” she said. “And we need to make a greater effort in collecting more-robust data.” Houpt and a dozen or so others plan to travel to the hearing from their homes in western Colorado, where drilling was intense for years before expanding to Colorado’s heavily populated Front Range. Residents’ prepared testimony says oil and gas operations have hurt their health with fumes causing nausea, burning eyes and coughing. They say dust and noise from drilling has disrupted their lives. “Nobody wants to be here. It’s dangerous, not just to the animals but to people,” Kaethe Williams said. She said company officials sometimes advise residents to leave their homes for a few hours. “I worry about the air and the water. They bring in silicone sand used for fracking. It is in the air all the time. We are breathing that.” [Emphasis added]
The Colorado Oil and Gas Association (COGA) and Colorado Petroleum Association (CPA) motion to dismiss BEFORE THE OIL AND GAS CONSERVATION COMMISSION OF THE STATE OF COLORADO IN THE MATTER OF CHANGES TO THE RULES OF PRACTICE AND PROCEDURE OF THE OIL & GAS CONSERVATION COMMISSION OF THE STATE OF COLORADO CAUSE NO. 1R, DOCKET NO. 1211-RM-04, January 3, 2013
The Industry Associations request that the below-described testimony and documentary exhibits be struck from the administrative record…and that witnesses not be permitted to testify…. As such, the Industry Associations move to strike all or specified portions of the below-listed testimony pursuant to COGCC 501.b. because they contain improper lay opinion and hearsay testimony, are abusive and harassing, are irrelevant or constitute cumulative testimony. in addition, the Industry Associations move to strike certain documentary exhibits, as detailed below, because they contain irrelevant information and/or hearsay, are harassing and abusive, or are incomplete and inauthenticated documents.