*Editor's note: This story has been updated throughout.
With the eyes of Nordheim cast upon them, state regulators have granted new life — if just a breath — to the tiny South Texas town’s effort to thwart an oil and gas waste site that locals argue threatens their way of life.
The Texas Railroad Commission on Tuesday voted to delay final approval for a dump that would store more than a million cubic yards of waste — such as drill cuttings, oil-based muds, fracking sand and other toxic substances — just outside the boundaries of Nordheim, which has a population of about 300 and is a mile away from a school.
The town fears that pollutants would leach into groundwater, that winds would carry volatile compounds outside of the site and that heavy truck traffic would tear up roads.
Pyote Reclamation Systems of San Antonio, the site’s developer, insists its facility would be safe.
In front of at least 60 residents and the entire 14-member senior class at Nordheim High School, the three-Republican panel voted to give the commission’s staff more time to consider the permit for Pyote Reclamation Systems to build the facility. The facility's 143 acres would be about half the size of the town.
More specifically, the commissioners told staff to consider whether the San Antonio-based company’s proposal included enough protections for worst-case scenario rainfalls in the area, located about 45 miles west of Victoria.
Though the commission’s staff — and officers presiding over a contested case hearing — had already recommended that the permit be approved, Grant Chambless, who manages the agency’s environmental permits and support staff, told the commissioners ahead of the decision: “If I had the chance to revisit the application, I would add some contingency and a safety factor.”
The vote prolonged one of the first organized protests in the heart of South Texas’ drilling country.
“At the end of the day, we need to do what’s right first, and we’ll worry about expeditiousness second,” said Commissioner Ryan Sitton.
Commissioner Christi Craddick expressed dismay at adding more time to a process that has already stretched more than two years, saying the commission was “dragging our feet,” and that Pyote and the folks in Nordheim “deserve an answer.”
But she and Chairman David Porter eventually sided with Sitton in sending the permit back for analysis specifically on whether the permit’s current protections against a 25-year storm were enough to protect an area not far from the Gulf of Mexico.
Some Nordheim residents proclaimed the decision a triumph — if only a temporary one.
“We consider this a victory, because it’s a little chink in the armor [of Pyote Reclamation] that it didn’t get approved," said Howard Anne Baumann, whose family owns a hayfield and rental property that would border the waste site.
But her husband, Paul Baumann, was less optimistic.
“Bought us a little time, but they’re going to approve it anyway,” he said.
Drilling and fracking a well leaves operators liable for vast amounts of waste. They typically get rid of liquid waste by sending it away to be injected into disposal wells deep underground. But operators must send solid waste such as drill cuttings, oil-based muds, fracking sand and other toxic substances to above-ground sites.
Pyote’s facility would handle that type of waste. The site would include a mix of lined disposal pits and land treatment cells where more benign waste would be scattered and allowed to mix with soil.
The company says the Nordheim site is ideal for waste disposal. It sits not far from the highway and is surrounded by drillers needing to unload waste. Pyote says its tests show that a 25-foot-thick layer of clay lies beneath the land, providing an extra level of protection for the groundwater underneath.
Supporters of the site emphasize that it would only house materials classified as “nonhazardous” by the federal Environmental Protection Agency, though that does not necessarily mean they are safe for humans to breathe. In 1988, the agency exempted oil and gas waste from its list of hazardous materials, though previous studies showed that some emit high levels of toxic compounds such as benzene.
Because the Railroad Commission’s jurisdiction is mostly limited to water impacts, the agency says it cannot factor in concerns about traffic, air pollution or quality of life.
Meanwhile, the Texas Commission on Environmental Quality, the state’s air regulator, has limited jurisdiction over such facilities, and only those with certain types of equipment require air permits to operate.
John Soule, a lawyer for the waste company, has sought to assure residents that Pyote wants to be a “good neighbor.”
“We certainty understand the concerns of the community, and we’ve done everything we can to respond to those concerns in different ways,” he told the commissioners Tuesday. That included adding plans for several groundwater monitors around the area.
But more than 200 people — including two state lawmakers and the county judge — have sent letters to the Railroad Commission asking the oil and gas regulator to deny Pyote permits to build and operate the facility.
That includes Rep. Geanie Morrison, R-Victoria, who was in Austin Tuesday.
“Anything that happens in their community impacts everyone,” she told the commissioners. “The people who live in Nordheim do not live in the upper income bracket… If something should happen, they are not in the position to relocate.”
Morrison applauded the commissioners’ vote to delay a decision, calling the drawn-out process “very unusual” and evidence that Nordheim’s concerns were being heard.
“I’m just very thankful to the Railroad Commission that they gave the time to the citizens,” she said.
For a proposal like the Nordheim dump, no state agency is charged with considering broader land use concerns like the new trucks expected to rumble down already cracked local roads. Dewitt County Judge Daryl Fowler said Tuesday that he expects the county will shell out far more money building and maintaining roads around the site than the project would yield in tax revenue.
“I have plenty of work to do in drilling and completion areas to have to worry about 100-plus trucks” Pyote would bring, he told the commissioners.
In an interview, Morrison acknowledged what she called “gaps” in the regulatory system for such projects, and suggested that lawmakers spend the lead up to their 2017 session examining how the Legislature could plug them.
“I think it could be something that is definitely brought up during the interim,” she said.
It’s not surprising that Morrison would stand with her constituents in opposing the dump, but her successful push last session to scale back contested-case hearings — the very mechanism Nordheim has used to protest Pyote’s application — has complicated her position.
Contested-case hearings resemble trials in which companies and their critics present evidence and testimony in front of an administrative law judge in the hopes of swaying regulators, who have the final say in granting, denying or modifying a permit application.
Senate Bill 709, which she sponsored in the House at the request of a wide-range of industries, overhauled the hearings process in a variety of ways, including setting time limits, narrowing who is considered an “affected person” who can bring a protest and arguably shifting the burden of proof from the company to the public.
Morrison told the Tribune that critics of her position on the bill do not understand what it changed.
“It did not change the process. Not one bit,” she said. “It definitely would not have affected this particular case.”