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Colorado, upstream of New Mexico, looking to follow NM's unscientific lead on produced water reuse

TX, NM and CO produced water leaders collaborate at Water in Energy Conference


New Mexico Environment Department (NMED)’s proposed Wastewater Reuse Rule 23-84 (R) pending before the Water Quality Control Commission (“WQCC”)  allows for fracking waste reuse in “demonstration projects” or “industrial projects” without delineating any scientific water quality or treatment standards to safeguard public health and the environment. Their stated future goals is reuse for  “agriculture, irrigation, potable water supplies, aquifer recharge, industrial processes or environmental restoration.”


Now Colorado, upstream from all of us, wants to replicate New Mexico's approach. In the news segment above NMED Secretary Kenney's states "Today's waste coming out of the Permian basin is tomorrow's energy," and Colorado's newly formed Produced Water Consortium plans to follow his lead.


The problem?


In the legal testimonies filed before the WQCC, both NMED and the NM Produced Water Research Consortium (Consortium) omitted an important scientific study authored by, Dr. Pei Xu, who is the Associate Director for Research and Technology at the Consortium. The omission of this important peer-reviewed scientific report gives the appearance of intentional concealment of the truth, depriving the public and the Commission of rigorous and authoritative science regarding whether “reuse” outside the O&G fields should be permitted at all, and under what circumstances.


The 2022 report co-authored by Dr. Xu finds that:


“Up to date, there are limited studies and no established tools to monitor these unknown transformation compounds and understand the toxicity effects of the chemical interactions during reuse applications.”


and further:


“[T]he risks associated with reusing treated PW still require intensive research. Given PW is a new, non-traditional water source, and the water chemistry is complex with naturally occurring constituents and chemical additions during the well stimulation process, water quality standards for different reuse applications should consider the known and unknown chemicals and toxicological characteristics of PW and treated PW. Intensive research is needed to provide scientific and technical knowledge to establish science-based regulations and develop well-informed permitting programs for the safe reuse of treated PW outside of the O&G fields.


More simply, Dr. Xu and her colleagues found in 2022 that there is limited information and no tools capable of measuring the toxicity effects of compounds formed through chemical reactions during the fracking process, and the risks associated with reusing treated fracking waste still require intensive research. According to Dr. Xu that research is necessary in order to “establish science-based regulations and develop well-informed permitting programs.”


And yet NMED and the Consortium have prematurely proposed regulation anyways, simply dispensing with the necessity to include water quality or treatment standards, and purposefully omitting the above reports from their testimony and apparently, their rulemaking process.


This is contrary to law, which requires the Water Quality Control Commission’s consideration of “all relevant factors including evidence contrary to the agency’s position.” An agency record is deficient if the agency ignored relevant factors it should have considered in making its decision.


Instead, political calculations seem to have taken precedence. As Norm Gaume, NM Water Advocate, former Director of the NM Interstate Stream Commission, and author of our expert testimony put it “This is a political Rule, not a scientific Rule. It does not protect the environment, public health, safety, and welfare. Premature initiation of Rule promulgation was a political decision, not a sound or credible regulatory one.”


The rule that the WQCC should adopt? "No person shall discharge, dispose of, or reuse treated or untreated produced water off of the oil field." That is consistent with the most credible and best available science, the Water Quality Control Act, the law and the NM Constitution. The Lujan Grisham administration has been woefully inadequate at supervising, monitoring, controlling, or penalizing a dirty and rogue oil and gas industry that is actively polluting our land and waterways - they currently cause illegal discharges and spills at a rate of 4 per day on the oil field! Has any company had their permits to do business revoked? No, this is a crime against our public health and the environment. 


The first and most important priority of our Environment Department should be protection of public health and the environment, not the private profit of the oil and gas industry. Any risk of toxic and radioactive contamination of New Mexico’s wells, acequias, rivers and lakes must be avoided at all costs. The Governor and the administration’s active exclusion of critical scientific information because it conflicts with the rulemaking is a threat to our democracy; their headlong rush to help the fossil fuel industry solve their fracking waste crisis threatens the health and wellbeing of every living thing in New Mexico. When our Environment Department cannot be trusted to follow the science, who can the people trust?

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