Today, Western Environmental Law Center requested the New Mexico Water Quality Control Commission (WQCC) reconsider holding a hearing on a rulemaking petition filed by an oil and gas industry-led organization that would allow treated fracking wastewater—called “produced water”—to be discharged to New Mexico surface and ground waters. Produced water is a toxic soup of chemicals that the WQCC just concluded in May, in a prior rulemaking, could not be treated to levels safe to discharge into the state’s water resources.
Just before the rule prohibiting discharge of fracking wastewater went into effect, the industry-led organization, Water Access Treatment & Reuse Alliance (WATR), petitioned the WQCC for a new rulemaking to reverse the prohibition and allow discharge of treated fracking wastewater. The new petition comes after an 18-month rulemaking proceeding in which the New Mexico Environment Department (NMED) proposed a strict prohibition on the discharge of treated and untreated fracking wastewater to New Mexico ground and surface waters. The Western Environmental Law Center supported the prohibition on behalf of clients with expert testimony on the serious risks of contaminating the state’s water resources with treated and untreated fracking wastewater. Based on a two-week hearing and thousands of pages of evidence, the WQCC concluded unequivocally that discharge of even treated oil and gas industry wastewater was not safe for public health or the environment. Yet, the ink wasn’t even dry on the new rule when WATR filed its petition seeking to allow discharge.
During WQCC deliberations on whether to hold a new rulemaking hearing, New Mexico Environment Department (NMED) Sec. James Kenney, sitting as a WQCC member for the first time in his 6.5 years as secretary, pushed the WQCC to take up the issue despite the fact that his agency had just won a hard-fought victory achieving the prohibition of discharge, and despite skepticism from commissioners that another hearing on the same subject matter should proceed. During the meeting, commissioners asked whether NMED scientists would be allowed to participate in the new rulemaking. In response, Sec. Kenney repeatedly equivocated. But at this point, NMED management has directed agency staff not to participate in the rulemaking—even though WATR seeks to undo years of work by NMED technical staff to protect New Mexico waters from fracking wastewater contamination. NMED scientists are being silenced in this latest industry push to allow discharge of treated fracking wastewater. The governor and Sec. Kenney have vigorously advocated in the state legislature for fracking wastewater reuse—legislative efforts that have failed in the two most recent sessions.
“In 25 years of practicing law in this field in New Mexico, I have never seen such disregard for the norms of administrative rulemaking or politically motivated decision-making overtake science and public safety as driving factors,” said Tannis Fox, senior attorney at the Western Environmental Law Center. “We spent a year and a half combing the facts and the science, and the Water Quality Control Commission agreed with New Mexico Environment Department scientists and our expert that the technology to treat produced water at scale to levels safe for public health and the environment is not presently available.”
WATR is comprised of Big Oil insiders. Its board of directors includes employees of gargantuan oil and gas companies Chevron, ConocoPhillips, and Occidental Petroleum (aka OXY). Just last week, the state of Colorado cited Chevron and OXY for falsifying lab reports to “[minimize] the levels of a wide variety of pollutants, including arsenic and barium in the soil and benzene in groundwater.”
Big Oil is fixated on obtaining permission to discharge fracking wastewater to New Mexico surface and groundwater, unsurprisingly, for financial reasons. Today, the industry disposes of this toxic soup—rife with chemicals kept from the public as “trade secrets”—by injecting it deep underground. The industry is running out of places to inject this waste, the process is expensive, and the public is increasingly revoking Big Oil’s social license to do so, concerned over more and more common earthquakes resulting from this practice. When earthquakes first started occurring near deep well injection sites, the oil and gas industry denied and/or downplayed its role in the issue. Today, the link is undeniable.
The rule established in the prior proceeding will sunset in five years to give the WQCC an opportunity to revisit the issue should water treatment technology advance to capabilities that ensure human and environmental safety. In order to determine that safety, however, the technology must first be in place to identify and treat the known hazards and carcinogens such as PFAS, arsenic, barium, bromide, mercury, benzene, toluene, ethylbenzene, and xylenes. Research has found that more than 1,100 unique compounds may be present in fracking wastewater. A U.S. EPA study identified 692 ingredients in fracking fluids, 11% of which companies keep secret from the public. It is impossible to create scientifically based water quality standards for compounds we don’t know are in fracking wastewater Big Oil wants to discharge to New Mexico’s rivers, streams, and groundwater. Yet water quality standards must be established for all the potentially toxic chemical components of fracking wastewater. The state of New Mexico does not have surface water quality standards for at least 180 potentially toxic chemicals in fracking wastewater.
The record and evidence from the first rulemaking are here here (under WQCC, Case 23-84(R)), including the WQCC’s comprehensive findings, based on evidence from NMED experts and WELC’s clients’ expert, demonstrating through scientific assessment and analysis that discharge at scale of treated fracking wastewater is not safe for the environment or public health.
The WQCC will address WELC’s request to reconsider holding a hearing at its next meeting, Tuesday, August 12, 2025, at 9:00 am, in Room 307 in the Capitol. The link to attend virtually is here.
Produced Water Reuse Rule record documents:
NMED petition for Water Reuse rulemaking
WELC-filed exhibits on behalf of Amigos Bravos and Sierra Club Rio Grande Chapter
Contact:
Tannis Fox, Western Environmental Law Center, 505-629-0732, gro.w1754639204alnre1754639204tsew@1754639204xof1754639204
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