The New Mexico Oil Conservation Commission moved forward with a rulemaking last week to prevent the use of PFAS chemicals in downhole oil and gas operations such as hydraulic fracturing.
After lengthy discussions, the state regulators approved a proposed rule with various changes based on commission deliberations, however that rule will not become official until the commissioners have a chance to further review it and issue an official order at a future meeting.
Commissioners went through the rule and looked at various definitions individually.
There were three proposals for what the PFAS rule should look like. These rules were drafted by WildEarth Guardians, the New Mexico Oil and Gas Association and the Oil Conservation Division.
The final rule will likely look different than any of those three proposals.
“I don’t think any one set of proposals encompasses where I would land,” Commissioner Greg Bloom said at the start of the meeting.
The rulemaking came as a result of a petition by the advocacy group WildEarth Guardians, which is concerned that the use of per- and polyfluoroalkyl substances in oil and gas operations could impact communities in the Permian and San Juan basins.
One of the areas debated during deliberations was whether companies should be required to disclose what chemicals are being used in oil and gas operations. Proponents of such a requirement say it is needed to ensure PFAS chemicals aren’t injected into the ground, but opponents say such requirements would violate the Uniform Trade Secrets Act.
Bloom said NMOGA noted in its arguments that a type of PFAS chemical known as PTFE was used until 2020 and another PFAS chemical was used until 2015.
“The only reason we know about the use of these chemicals is because they were disclosed,” he said. “Had they been held as trade secrets, we would not have known anything about them.”
Bloom noted that there are thousands of types of PFAS chemicals and many of them have not undergone safety testing. He said if the rule is not implemented, those chemicals could be kept as trade secrets.
Commissioner William Ampomah was not convinced that such requirements wouldn’t violate the Uniform Trade Secrets Act.
“Let’s say if we force companies to more or less disclose entirely all the chemicals that they are going to use in the downhill operations, are we not in violation of the trade secret?” he asked.
Bloom argued that the Oil Conservation Commission would not be violating the law because “we would be saying that companies simply have to disclose the chemicals they’re using, and they can’t use anything that’s not disclosed.”
Commission Chairman Gerasimos Razatos said he also had concerns that the Oil Conservation Commission could be overstepping its authority, though he shared Bloom’s concerns that the PFAS chemicals used in oil and gas operations could impact public safety and the environment.
A representative from the New Mexico Department of Justice told commissioners that both sides laid out legal arguments and that there was not a black and white answer.
“We’re up here protecting health. We’re up here protecting the environment. And right now, the industry can pick any chemical, call it trade secret, and we have no idea it’s in use,” Bloom said. “I mean, there could be an entire new class of chemicals invented tomorrow that would be put into use and we wouldn’t know about it for lord knows how long until somebody decided to voluntarily disclose it to us.”
Ultimately, Razatos sided with Ampomah and said the chemical disclosure of all chemicals used in the oil and gas industry in New Mexico goes beyond the purview of the Oil Conservation Commission.
