Final Fracking Waste Reuse Response Brief filed as new Strategic Water Supply Once Again on the Agenda

On Friday we filed our final brief response brief and alternative language for the New Mexico Environment Department’s proposed “Ground and Surface Water Protection – Supplemental Requirements for Water Reuse” rule (WQCC 23-84 (R)), aka the Wastewater Reuse Rule, pending before the Water Quality Control Commission (“WQCC”). NMED’s proposed rule provides the regulatory framework to authorize the Governor’s planned Strategic Water Supply, the latest version being a smaller $75 million investment of public funds to subsidize the treatment of oil and gas industry waste without first codifying any science based standards or a permitting process to protect public health and the environment.

We are in the process of evaluating some of the provisions in this new Strategic Water Supply proposal, but our essential critique remains the same: the public should not be subsidizing waste disposal of a private industry that makes billions of dollars in profit, especially an industry that is the cause of the water crisis the Governor's proposal is supposedly trying to solve. And legislators should not be prematurely funding fracking waste reuse when it has not been proved feasible or protective of our water and our health. The risk of contaminating New Mexico's dwindling water supply is too great.

The Hearing Officer will now read all of the response briefs and then make a recommendation to the Water Quality Control Commission for their consideration. A decision by the WQCC will not be made before the legislative session begins and the Strategic Water Supply comes up for a vote. As soon as we know when the WQCC will deliberate on the final rule at an open meeting we will be sure to let you know. This open meeting will follow recommendations by the Hearing Officer.

The rule proposed by NMED would prohibit the intentional discharge of produced water, but at the same time authorize “industrial and demonstration projects” unlimited by location, size or treatment technology, and includes no science based standards.

Our closing arguments in this case reiterate that:

1. The Water Quality Act requires regulations to be based on defensible scientific evidence, but NMED’s proposal to authorize industrial projects and demonstration projects off-oilfield is not based on any credible defensible scientific evidence. The only fact conclusively demonstrated by the current science is that produced water is incredibly hazardous. Scientists have sufficient toxicological data for less than 15% of the known chemical constituents in produced water, and there are over a thousand chemicals that have not been sufficiently studied to know whether and at what level they pose a risk to human health and the environment. The parties have all concurred that without data and peer-reviewed science, both treated and untreated produced water pose an extremely high risk to plants, animals, and humans.

   
   

2. The Produced Water Act plainly requires permits for any and all off-oilfield uses of produced water. NMSA 1978 § 70-13-4(D). NMED’s proposed rule would allow off-oilfield uses of produced water without a permit, as long as no discharge is contemplated in the proposal, and is therefore in direct contravention of the Produced Water Act. NMED’s proposed rule would authorize the reuse of produced water for “demonstration projects” and “industrial projects” with only a “notice of intent” process, which is legally insufficient. Neither does it require notice or publication, nor an opportunity for any person to object or participate in the approval/denial process, nor criteria for approval or denial.

NEE is proposing an amended rule that comports with science, protects human health and New Mexico’s water systems, and adheres to the plain intent of the Water Quality Act and Produced Water Act. Our proposed language prohibits discharge of produced water outside the oilfield but allows scientific research to proceed for bench scale and pilot treatment projects, provided those projects are permitted and meet stringent parameters detailed in the testimony of NEE expert Dr. Vengosh and by NMOGA witness Mr. McCurdy who identified the protective measures in Texas law, basic requirements of oversight that are consistent with law, including protection of human health and the environment.

Dr. Avner Vengosh, the Duke University Chair of Environmental Quality Chair, Division of Earth and Climate Sciences, who has authored 34 peer reviewed studies of produced water testified unequivocally that:

Numerous studies, including my own research (see Exhibit AV-2), have shown that oil produced water contains elevated levels of toxic organic chemicals, salts, metals, and contaminants such as ammonium and radium nuclides, which are extremely toxic for the ecological systems and human health. In addition to the direct contamination of water resources impacted by spills or even discharge of treated oil produced water, high concentrations of radioactive elements such as radium nuclides in oil produced water poses risks for the accumulation of the radioactive elements on the soil (in the case of using oil wastewater for irrigation) or streams (in cases of disposal of treated oil wastewater). It has been shown that disposal of treated oil wastewater to streams and rivers has caused high levels of radioactivity in the sediments in the outfall sites. Given the high level of salinity and elevated levels of other contaminates in oil produced water specifically from the Permian Basin, reuse of untreated or inadequately treated oil wastewater in New Mexico is clearly impossible and would cause major environmental damage.

The oil and gas industry has a growing challenge with the prodigious amount of toxic radioactive waste produced from fracking - for every barrel of fuel produced there is at least 4 barrels of waste. The Water Quality Control Commission has a responsibility to ensure that any rule authorizing reuse of that toxic waste stream outside the oilfield is based on scientific evidence and protective of New Mexico’s precious water and the people who depend on that water for life.