UNKNOWN RISKS. ONLY 14% OF FRACKING CHEMICALS HAVE BEEN ADEQUATELY STUDIED

The 2005 Energy Policy Act exempts hydraulic fracturing from key provisions of the Safe Drinking Water Act. As a result, fracking chemicals have been protected from public scrutiny as “trade secrets.” The oil and gas sector is the only U.S. industry permitted to inject known hazardous materials near, or directly into, underground drinking water aquifers. At the same time, in most states where fracking occurs, routine monitoring of groundwater aquifers near drilling and fracking operations is not required, nor are companies compelled to fully disclose the identity of chemicals used in fracking fluid, their quantities, or their fate once injected underground.

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Only 14% of the known chemicals detected in fracking waste have been adequately studied for their effects on human health. In the legal testimonies filed before the New Mexico Water Quality Control Commission in the fracking waste reuse rulemaking an important scientific study authored by, Dr. Pei Xu, who is the Associate Director for Research and Technology at the Produced Water Research Consortium was omitted. The 2022 report co-authored by Dr. Xu documented unknown compounds formed through chemical interactions during fracking, stating:

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“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.”

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and further:

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“[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.”

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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 that 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.”

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And yet NMED and the Produced Water Research Consortium have prematurely proposed reuse expansion anyways, simply dispensing with the necessity to include water quality or treatment standards, and omitting the above report from their testimony and apparently, their rulemaking process.

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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.

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Instead, political calculations seem to have taken precedence. As Norm Gaume, NM Water Advocate and former Director of the NM Interstate Stream Commission 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.”

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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.