PFAS banning at center of hearing

Hours of public comment, testimony and questions kicked off the first day of a four-day hearing to decide if certain dangerous "forever chemicals" that the oil and gas industry maintains it no longer uses should be banned from use.

The proposed rule from WildEarth Guardians recommends several changes to existing rules, including requiring companies to disclose the chemicals they use in well operations and certify no perfluoroalkyl and polyfluoroalkyl substances — commonly known as PFAS — or other undisclosed chemicals were included.

According to the U.S. Centers for Disease Control and Prevention, PFAS exposure is associated with health effects including elevated cholesterol, increased risk of kidney and testicular cancers and pregnancy-related conditions like preeclampsia.

"The petition you accepted asked a very simple question of you. It asks you to ban the use of PFAS substances in downhole operations, and then it requests full disclosure of all chemicals that are used in downhole operations to enforce that ban," said WildEarth Guardians attorney Tim Davis. "If we don't know the chemicals that are going downhole, then we can't be certain that those chemicals are not PFAS. This proposed rule is rooted in the fact that PFAS poses a serious public health threat and an environmental threat."

The proposed changes were drafted in response to a 2023 study from the Physicians for Social Responsibility, which said thousands of pounds of PFAS were injected into hundreds of New Mexican wells over the past decade.

Last December, state lawmakers on the Radioactive and Hazardous Materials Committee voted 7-2 to send a letter to the Oil Conservation Commission in favor of the rule.

But some industry members have cast doubt on the report and asserted the industry does not use PFAS when fracking.

At Tuesday's Oil Conservation Commission proceeding at the Wendell Chino Building, attorney Cristina Mulcahy said the report identified two PFAS constituents used in the oil and gas industry in New Mexico, both of which were phased out between 2015 and 2020. In a pre-hearing statement, the New Mexico Oil and Gas Association wrote it was supportive of a "clear, science-based" ban on fracking fluid intentionally laced with PFAS but took issue with several provisions in the WildEarth Guardians rule.

Dusty Horwitt, the lead author of the 2023 report and a witness appearing on behalf of WildEarth Guardians, said although reporting of those chemicals did stop like Mulcahy said, the current reporting standards aren't fail-safe.

"It is correct that the disclosed uses ... stopped at a certain point," Horwitt said. "But we cannot be confident that means that those types of PFAS were not used beyond those dates, or the other types of PFAS during that 10-year period we looked at ... because of the gaps in disclosure."

In a May 2023 letter signed by state Environment Department Secretary James Kenney and then-Energy, Minerals and Natural Resource Department Secretary Sarah Cottrell Propst, the authors wrote the Oil Conservation Division's rules around chemical disclosure were "limiting OCD's ability to identify PFAS use in drilling or completion activities with any specificity."

But, they wrote, the division hadn't identified evidence of PFAS contamination from oil and gas activities, including injection and completion, "despite having worked on remediation activities at various sites across the state."

The public comment period, which lasted several hours, drew people from around the state, including a teacher and mother from Pojoaque, a doctor from Las Cruces and several residents of La Cieneguilla, a community near Santa Fe where PFAS contamination was found in several private wells.

Stephen Schmidt said his well in La Cieneguilla has tested positive for PFAS and he has spent hundreds of dollars to try to mitigate the contamination.

"If industry has claims that they don't use PFAS, then I don't see why they would have any opposition to testing for those chemicals," Schmidt said. "... I'm very much for disclosing what is used by the industry, and I hope to prevent all other people in New Mexico having to deal with issues I've had to deal with."

Several parties were at odds about whether the state's trade secret provisions would prevent the adoption of some or all of the provisions. In filings submitted by the New Mexico Oil and Gas Association, the trade group wrote the Oil Conservation Division does not have the power to "side-step" the trade secret provisions and require companies to share everything they use in fracking fluid.

Daniel Rubin, counsel for the Oil Conservation Commission, however, said "there is a provision ... which relates to water quality which may or may not act as an exception to trade secrets," akin to a similar provision relating to air quality.

"I do not know how this will ultimately sort out, but to the extent the parties wanted to account for that possibility in their presentations ... it might be helpful to know ahead of time," Rubin said.

Additional testimony and public comment periods are planned throughout the week.

Oil Conservation Commissioner William Ampomah, the designee for the Energy, Minerals and Natural Resources Department, said he'd like to see more New Mexico-specific data presented.

"You're asking a big ask of the commission," Ampomah said. "One is banning PFAS, and the other is banning all undisclosed chemicals. ... I want to see real data in our state that should push us to more or less go the extreme of even banning undisclosed chemicals."