NM officials could decide on PFAS ban in early 2025

New Mexicans could see an outcome as early as next year on whether the state will ban the use of a specific group of chemicals commonly known as PFAS in oil and gas operations.

Last week, the state’s Oil Conservation Commission held a four-day-long hearing on an application to prohibit the use of perfluoroalkyl or polyfluoroalkyl substances — PFAS — in oil and gas exploration, development and production. The proposal would also require operators to disclose their use of chemical products, even if it’s classified as a trade secret, in certain instances.

The issue dates back to May 2023, when Santa Fe-based environmental organization WildEarth Guardians filed a proposal with the Oil Conservation Commission to ban the use of PFAS chemicals in oil and gas operations and adopt chemical disclosure and reporting rules in the industry.

PFAS is known as a forever chemical — it doesn’t naturally break down — and has been known to cause health problems like cancer. The federal government has faced intense scrutiny over PFAS in New Mexico with Cannon Air Force Base, near Clovis, spreading PFAS contamination in recent years.

The PFAS ban proposal is modeled on legislation passed in Colorado, according to WildEarth Guardians.

Currently, the Oil Conservation Commission doesn’t require oil operators to report or disclose proprietary or trade secret information. WildEarth Guardians wants to change that. The environmental organization proposed the state require operators disclose the trade name of chemical products used in downhole operations like fracking. Chemical disclosure information would then be available publicly on a preexisting permitting data portal, per WildEarth Guardian’s proposal.

“It is our belief that these aren’t trade secrets anyway, because we’re not asking for the recipe; we’re just asking for the chemical constituents. And the public has a right to know,” said Mariel Nanasi, executive director of New Energy Economy, another environmental organization advocating for the PFAS ban.

The New Mexico Oil and Gas Association argued in its filed exhibits that the Oil Conservation Commission doesn’t have the authority to require operators to “wave their claims of trade secret.”

In its own rulemaking amendment proposal, NMOGA said it supports requiring operators to certify with the commission “that no intentionally added PFAS were used in their hydraulic fracturing operations,” a practice also known as fracking.

However, the state’s Oil Conservation Division doesn’t agree with the term “intentionally added” because it could create situations where the state has to litigate operator responsibility.

“For example, if a third party adds PFAS but doesn’t tell the operator, or the operator doesn’t make the third party certify it, the operator could state they didn’t know about it, so it wasn’t intentional on their part,” OCD explained as part of its modification reasoning.

The division compromised with a proposal that operators should file a certification that no PFAS chemicals were added to the fluid used in completing or recompleting a well.

Another big point of contention is defining what exactly PFAS is, which would impact exactly how many chemicals could be part of a ban or reporting requirements.

The Oil Conservation Commission doesn’t currently define PFAS in the rulemaking being considered, and WildEarth Guardians proposed defining it as perfluoroalkyl and polyfluoroalkyl substances that are a class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom — the broadest proposal suggested.

NMOGA proposed a much more narrow definition: a perfluoroalkyl or polyfluoroalkyl substance with two or more sequential fully fluorinated carbon atoms.

The Oil Conservation Division met somewhere in the middle of the two organizations. Its definition lists PFAS as any chemical with at least perfluorinated methyl group or a perfluorinated methylene group, excluding those with a hydrogen, chlorine, bromine or iodine atom attached to the subject carbon atom.

Moving forward, the Oil Conservation Commission — a separate entity from the Oil Conservation Division — will send transcriptions of the hearing proceedings to all involved parties, at which point they need to submit final written arguments. There’s no set deadline for that, according to an EMNRD spokesperson.

Once the written arguments are in, the commission deliberates. There’s also no deadline for that.

The earliest the commission will make a decision is the first quarter of 2025, according to EMNRD.

“I think that the commission will probably do the right thing in the case,” Nanasi told the Journal earlier this week. She also said the commission wouldn’t let her interview NMOGA’s expert witnesses on the record about their work with GSI Environmental Inc., which Nanasi believes is a conflict because it serves oil and gas and chemical companies.

NMOGA has repeatedly argued it supports a science-based ban on PFAS in oil and gas. Missi Currier, president and CEO of the association, sent an email statement to the Journal again expressing that. NMOGA didn’t respond to questions about the credibility allegations of its expert witnesses.

“(NMOGA) has supported this ban since WildEarth first proposed it,” Currier said. “Any allegations to the contrary are not only meritless but also a baseless attempt from certain organizations to detract from the truth, which is that NMOGA has and will continue to support a ban on PFAS in oil and gas operations.”

Editor's note 11/25 1 p.m.: This article has been updated to reflect which PFAS definitions are more broad or narrow.