Oil and Gas Audacity

Introduction

The New Mexico oil and gas industry in the Permian Basin has run out of cheap places to dispose of its fluid oil and gas waste, aka ‘fracking wastewater’ or ‘produced water.’ ‘Produced water’ is industry’s name for the most complex and hazardous high-volume wastewater in the oil-producing states.

The oil and gas industry, New Mexico’s Governor, and the Environment Department executives seek to allow treatment and industrial reuse of fracking wastewater without permits. The oil industry wants to be able to discharge, too. State government says discharge is not allowed but wants industrial reuse now with no data, no oil and gas disclosure of poisons, pollutants and trade secret fracking chemicals, and no public notice whatsoever. The currently proposed Environment Department rule would require nothing more than a few unenforceable promises from the proponents when located on private property from which the public is excluded.

How does New Mexico’s statewide need for water compare with the oil and gas industry’s need for waste disposal? Treatment of all the waste at a cost likely exceeding $1 billion per year could not meet current irrigation needs in Lea and Eddy counties alone.

Disposal of fracking wastewater through reuse or discharge is urgent for the Permian Basin operators, who generate about 98% of this waste and are quickly running out of room for current disposal methods through high-pressure saltwater disposal wells to the shallowest geological formations deemed suitable. Much of the disposal capacity is now offline because the high-pressure injection wells are causing earthquakes.

In 2024, the Legislature refused to authorize the Governor’s half-billion-dollar borrowing authority for a so-called Strategic Water Supply, to provide “advance market commitments,” which means state financial guarantees for industry to build treatment plants and make ‘treated’ water available.

The New Mexico Environment Department proposed reuse rules for fracking wastewater in 2023. The Water Quality Control Commission held a hearing on them from May 13th-17th. The hearing will resume on August 5th for up to eight days. Very useful information has come forward. Incisive testimony proving the harm of fracking wastewater reuse was filed with the Commission. Those witnesses will be heard and cross examined.

Oil and Gas Gaslighting

The oil and gas industry is gaslighting everybody. At a Chevron-sponsored fracking wastewater propaganda event on June 5th, its New Mexico government affairs person, Christian Isley, claimed that New Mexico should adopt a mindset of abundance due to the potential of the reuse of treated produced water. This claim falls apart under simple fact-checking.

On August 7th, the NM Chamber of Commerce is a co-sponsor of the next Chevron propaganda event at the Albuquerque North Valley winery, invitation only, legislators invited, free drinks. Ms. Missi Currier, President and CEO of the New Mexico Oil and Gas Association (NMGOA), is leading a one-hour panel discussion. The panel topic: ‘The Need to Reuse Produced Water: Water Scarcity and Current Regulatory Status.’ All panelists are oil industry executives. See below.

Water Shortfalls vs. Potential Produced Water Reuse Volume

How does New Mexico’s need for water compare with the oil and gas industry’s need for disposal? It’s an incredibly expensive and risky pittance. New Mexico’s total annual water use is about three million acre-feet. Climate change is projected to reduce our water supplies by 25% by 2070. Our aquifers are being dewatered, and river flows are declining. For example, flows in the Rio Grande entering the Middle Rio Grande have decreased by hundreds of thousands of acre-feet per year from the 1980s and 1990s. Evapotranspiration due to the hotter, continually warming climate is drying everything out, requiring more water for life.

From 2019 to 2023, the oil and gas industry annually injected about one billion barrels of fracking waste into saltwater disposal wells in southeast New Mexico. If all this waste were treated for reuse (unlikely) with a 50% recovery rate (also unlikely), it would yield a maximum of 64,500 acre-feet per year—insufficient to meet current irrigation needs in Lea and Eddy counties alone. Moreover, treating this waste would cost upwards of $15,000 per acre-foot, totaling about $1 billion per year.

Frackers PFAS Falsehoods

In her May 3rd and May 5th guest editorials in the Carlsbad Current-Argus and Albuquerque Journal, NMOGA President and CEO, Missi Currier, lied about PFAS in fracking wastewater, saying, “Concerns that the oil and gas industry introduces Per- and Polyfluoroalkyl Substances – or PFAS – into its produced water are unwarranted. To be clear, the oil and gas industry is not a source of PFAS in produced water.”

Sworn technical testimony proves her statements are false. Environment Department technical witnesses, the NMSU Produced Water Research Consortium director, and New Energy Economy’s expert witnesses testimony provide evidence to the contrary.

An April 23, 2023, report by Physicians for Social Responsibility documents the use of thousands of pounds of trade-secret PFAS fracking additives in New Mexico. PFAS chemicals (over 15,000 chemically engineered varieties) are highly toxic and persist in the environment and human bodies, leading the EPA to establish new federal drinking water limits in April 2024 for two PFAS chemicals at 4 parts PFAS per 1,000,000,000,000 (trillion) parts of water. Adding 1.5 ounces of PFAS to 100,000 acre-feet of water would pollute the water to violate the limit.

The oil and gas industry in New Mexico uses thousands of pounds of trade secret PFAS industrial surfactants in the fracking fluid it injects under extreme pressure to hydraulically fracture the oil-bearing rocks and keep the fracked cracks open and flowing. Mr. Hightower testified that some members of the oil and gas industry are trying to stop PFAS uses but each operator makes its own decisions in the absence of any prohibition. NMED testimony says the ‘forever’ PFAS chemicals will keep coming back out in the fluid waste for the life of the well.

Despite the huge hazardous dangers, governments have not taken action to stop the known use of PFAS in hydraulic fracturing. New Mexico regulators publicly announced in June 2023 they planned a 2024 hearing on PFAS use, but it was canceled.

Take Action

Sign up to give a 3 min public comment in person or virtual–a variety of times are available Monday Aug 5th – Friday 9th on the Wastewater Reuse rule before the Water Quality Control Commission

1.  Public Comment Sign Up  – to help us organize
2. Officially sign up by emailing Administrator Pamela Jones: pamela.jones@env.nm.gov

The rule would authorize fracking waste reuse in “demonstration projects” or “industrial projects” with the eventual goal of reusing fracking waste for “agriculture, irrigation, potable water supplies, aquifer recharge, industrial processes or environmental restoration.”

The rule does not delineate any scientific treatment standards to safeguard public health and the environment. Toxic fracking waste (aka produced water) contains toxic chemicals, both known and unknown, PFAS and radiation levels that endanger all of us. Reuse of fracked waste poses an enormous undue risk to our land, water and health in New Mexico!

We need farmers, gardeners, healthcare workers, students, artists, parents and more to speak out and protect our water! In May, over 50 people spoke out to Defend NM Water against the reuse of radioactive fracking waste – bravo! We want to reach that level of engagement and to hear voices from across the state next week August 5th-9th.

Tell your story about how this might affect you, your family, your hope for New Mexico, or your disgust with what you have learned. Ask the Water Quality Control Commission to do their job as expert technical regulators, as set forth in law. The commissioners listened intently to public comment during two hours they set aside each hearing day. They were listening and were moved. They need to hear more.

Public Comment: IN-PERSON: NM STATE CAPITAL, 411 South Capitol St. Room 322

VIRTUAL COMMENT LINK on Webex: Bit.ly/WQCC23-84-Hearing, email Administrator Pamela Jones: pamela.jones@env.nm.gov to officially sign up. 

Sign Petition  

State Law Requirements

New Mexico state law since 2019 has required contaminant standards for the reuse of treated fracking wastewater. It requires regulations and permits for any handling, treatment, storage, transportation, or treatment for the disposition by reuse for non-oil industry purposes. The standards and regulations must be based on scientifically developed evidence. The permitting process applies those standards and regulations to project-specific facts. Regulators must consider public comment as part of permitting.

Proceeding without these requirements would be illegal. The Environment Department political rule now before the Water Quality Control Commission does not align with the law.

Research Requirements:

Five years ago, the NMED and New Mexico State University agreed to create the New Mexico Produced Water Research Consortium. The Consortium’s purpose is to conduct the research NMED requires to meet its statutory requirements set forth in the 2019 Produced Water Act. State law mandates that adequate science and facts form the basis for the state’s determination of fracking waste reuse standards, regulations, and permit requirements.

The most recent November 2022 version of their 2019 agreement is posted on the NMED website here. It appoints three members of an expert Independent Review Committee, who conducted an audit of the Consortium’s performance. The Committee’s report, consisting of a three-page letter and a PowerPoint slide deck, is available here.

Consortium Performance is Unacceptable to NMED, but Nothing Has Changed. The Independent Review Committee’s report was required by the NMED/NMSU agreement to be confidential. I obtained it through a public records request from the NMSU Office of General Counsel when NMED had previously responded to me that they did not have it, which I find incredible.  

The report makes these observations about the Consortium and its management.

“There is a difference of expectations from stakeholder groups and opinions of its progress to date.

• Industry seems to be generally satisfied with the Consortium; while feedback from NMED is that they are not.“
• The research … has been focused on technology development, has not generated the data needed for developing regulations.“
• Industry is adept at seeking/developing new technologies. does not need the consortium to do that. The need is to demonstrate that the product water is safe for the intended use.
• Some don’t appreciate the difficulty that NMED will have regulating this. PW is a contentious issue. The public will complain no matter what NMED does, so they (NMED) must have air-tight science with chain-of-custody, peer-review, no conflicts of interest, etc., to back up the regulatory process.”

This previously secret report concludes,

“The NM State Legislature directed NMED to develop regulations for Produced Water, and the Consortium is an important part of that process. It is unlikely that the Consortium can accomplish its stated mission of generating the data needed to support the development of regulations if it has inadequate funding, an unclear organization structure and lack of clarity in expectations in research and outcomes. The recommendations of the Committee or some similar actions are needed if the Consortium is to continue.“

Back to the Law. Now it’s up to the New Mexico Water Quality Control Commission (WQCC) to promulgate rules that follow the law. The WQCC must reject the Environment Department’s proposed political rule allowing industrial projects reuse without a permit based on merely an unenforceable promise of no discharge. This is both illegal and foolish due to state government’s absence of effective enforcement and the oil and gas industries’ record. Illegal spills of produced water in the oil field occur multiple times daily without state penalty.  The failure of oversight agencies to hold Oil and Gas polluters accountable for their continuous and unabated spills is unacceptable. This toxic waste must not be transported for reuse outside of the oil patch.

Recommendations:

New Mexicans deserve transparency and proactive measures to protect their water and health from these toxins. The New Mexico Water Quality Control Commission must reject the Environment Department’s proposed rule allowing industrial reuse. The public must be protected by a simple WQCC rule that does four things in the absence of real science and reliable, trustworthy data:

1. Prohibits the reuse of treated or untreated produced water for activities unrelated to the exploration, drilling, production, treatment or refinement of oil or gas without a permit.
2. Prohibits state certification of any federal discharge permit for treated fracking waste.
3. Prohibits industrial fracking waste reuse and demonstration projects without a permit.
4. Requires permits for laboratory or pilot scale research pertaining to treatment for reuse.

Illegal Conflict of Interest:

WQCC Commissioner Krista McWilliams stated for the Commission record at the beginning of the Commission’s hearing on the NMED proposed political reuse rule that she has no conflict of interest in the rulemaking. However, this NMOGA video and other evidence submitted with New Energy Economy’s complaint to the New Mexico Ethics Commission shows Commissioner McWilliams’ association with the NMOGA, a party in the rulemaking, a conflict prohibited by the Water Quality Act, and a financial conflict of interest prohibited by the Governmental Conduct Act now enforced by the Ethics Commission.

The NM Ethics Commission has issued a finding of probable cause and appointed a hearing officer. New Energy Economy has filed a motion with the WQCC, to be heard on August 5th, to disqualify Commissioner McWilliams.