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Easing Up On Toxic Water Regulation Is Not The Answer

As a high mountain desert, New Mexico has managed to stay out of zero water by the skin of its teeth many times. With a booming oil and gas industry that propelled the state into being the third largest oil producing state in the U.S. in 2018, clean water is being sucked up and heavily polluted at an unsustainable rate to bring the black gold to the surface. Toxic spills of waste water in the hundreds are polluting surface areas around the state. Clean water is getting harder and harder to find. Despite all this, there is an effort afoot in New Mexico to try to ease up on regulation of the produced toxic water so that the oil industry can dump it into streams and use it to irrigate crops.

Water used in extraction and in the refinery of oil and gas is called “produced” water and is a combination of flow back from hydraulic fracturing and formation water brought up with oil and gas from underground shale. Water is used during drilling to cool and lubricate the drill and remove drilling rock and mud debris. For hydraulic fracturing operations, water is mixed with sand to hold the fractures open and allow oil or gas to flow into the well. To improve its ability to create fractures in the rock, various chemicals are added to the water.

The produced water also contains toxic contaminants, including heavy metals, salts and radioactive materials, and is considered too toxic to treat. Currently, the oil and gas industry has to pay to dispose of its produced water used during crude oil production. The amount of water produced by a well can vary from almost none to over 100 barrels of water per barrel of oil. Nationally, an average of about 10 barrels of water are produced for each barrel of oil. Many companies have begun reusing the water and recycling it for subsequent fracking operations at their own facilities or through a midstream operator.

Jeremy Nichols, director of the Climate and Energy Program at WildEarth Guardians, said in a recent interview with The Paper., “The oil and gas industry is trying to get the state of New Mexico to roll back its water quality protection rule so they can dump their liquid waste back into rivers, creating environmental contamination. If their water waste gets turned into a commodity, then they don’t have to pay for the cost of disposing their waste.”

Nichols said produced water waste has radioactive materials absorbed from thousands of feet underground. “There’s no technologically feasible way to make the water nonradioactive. And if you could extract radioactive materials, then you have a radioactive waste problem. While trying to confront the climate crisis, why would we make it less costly for the oil and gas industry to operate by easing up regulation on toxic water? We should be going in the exact opposite direction.”

On Nov. 4 WildEarth petitioned the New Mexico Oil Conservation Commission (OCC/OCD) to amend Rules 19.15.29.6 and 19.15.29.8 NMAC governing spills of produced water by the oil and gas industries. Currently, these rules do not prohibit spills or releases of produced water, and there are no consequences for spilling of produced water by the oil and gas industries. The proposed rule would specifically prohibit the spilling or releasing of produced water. The OCC unanimously granted the request for a hearing in April 2021 to meet and consider adopting rules that would effectively ban produced water spills.

In 2020, according to OCD’s online spill database, 1.6 million gallons of wastewater has spilled so far, with nearly 600,000 gallons of that produced water was lost. Seventy-nine percent of those releases were in Eddy and Lea County, and 50 percent were labeled as “major” spills. “By making these spills by the oil company illegal, you allow the agency to assess penalties, thus creating an enforcement regime, which would be really good for the state of New Mexico,” Nichols said.

One of the things WildEarth is seeing is that a lot of spills seem completely and totally preventable. “These spills don’t just randomly happen, they occur because the industry is careless,” Nichols said. “Spills happen because of human error, pipeline corrosion or because of a general lack of maintenance.” He said spills are rampant right now; and while companies have to report a spill, there is very little follow up or oversight.  

The Environmental Protection Agency (EPA) conducted a study in 2019 engaging states, tribes and stakeholders to consider available approaches to manage wastewater from both conventional and unconventional oil and gas extraction at onshore facilities. EPA’s study considered questions such as how existing federal approaches to produced water management under the Clean Water Act could interact more effectively with state and Tribal regulations, requirements or policy needs and whether potential federal regulations that may allow for broader discharge of treated produced water to surface waters were supported.

A draft report released in May 2019 described what the EPA heard during its engagement for the study. The EPA accepted public input on the draft report, and after considering this input, in May 2020 it published a final report: Summary of Input on Oil and Gas Extraction Wastewater Management Practices Under the Clean Water Act. The agency is still determining what, if any, next steps should be taken regarding produced water management under the Clean Water Act.Division and scarcity of clean water has been going on in New Mexico for hundreds of years. As New Mexico moves forward with its clean energy plans, the pollution and the scarcity of its water must be front and center as it faces climate change, oil and gas development, looming drought, population growth and urban development. “The issue now is that the governor and others are saying we can mitigate water scarcity by using the oil and gas industry’s water, which is a scary proposition,” Nichols said.  “If New Mexico contaminates the scarce water that exists, this is not a water solution. It is a recipe for environmental disaster.” [ ]