Today is a momentous day, and it can be hard to pay attention to anything but the election, but you can bet the corporate polluters of the world are not distracted. As we await today's outcome, here's an update on NMOGA's latest maneuverings in the PFAS case. They are trying to use procedural distractions and create a fog of confusion around regulatory authority so that they can continue poisoning New Mexico and New Mexicans without oversight as follows:
1. NMOGA has moved to exclude the direct testimony and exhibits of all three WildEarth Guardians experts and of Dr. Kris Hansen, the New Energy Economy expert, on the grounds that "Her professional experience with Per- and polyfluoroalkyl substances (“PFAS”) does not relate to oil and gas operations, but rather, consumer products." As Dr. Hansen, a Ph.D. in Chemistry with almost 30 years experience studying PFAS, notes in her rebuttal:
"I have conducted pioneering work measuring and tracking PFAS compounds in a variety of matrices including in water, sediment, sludge, industrial waste, soil, WWTP influent and effluent, tissue, food and product samples. My work tracking PFAS compounds in the environment has been cited thousands of times in the peer-reviewed scientific literature. My PFAS expertise is especially germane given that these compounds are both highly persistent and highly mobile in the environment, typically moving quickly and widely from their point of use, discharge or disposal. With the potential for PFAS spills on the ground or in water ways, volatilization of incompletely combusted PFAS during flare off, volatilization of PFAS from surface ponds, spills or discharge of produced water and the presence of PFAS on and from surfaces and machinery encountered during transport, use and disposal, my experience with environmental analysis is far more relevant than industry-specific knowledge." (Volatilization means that the PFAS becomes airborne!)
2. NMOGA alleges that the Oil Conservation Commission does not have the authority to regulate what goes into produced water, only what comes up out of the ground. Never mind that what goes down must come up. The Commission has the authority to regulate produced water, and without the authority to regulate fracking fluids, that authority becomes meaningless.
3. NMOGA is attempting to limit the definition of PFAS in the proposed rule to a small number of specifically named PFAS, arguing that the broader definitions offered by our expert and the WildEarth Guardians definition, which has been adopted in 23 other states and used extensively by the federal government, is overly broad and would include "PFAS for which no such data or concerns exist." This absurd and dangerous argument ignores the fact that there are no PFAS about which no concerns exist.
It took 50 years for the EPA to gather the data and science to protect the public from the first PFAS chemicals on the market. Just because thousands of newer versions have since been developed and scientists have not yet fully quantified the risks associated does not mean there are no concerns and regulations should not be implemented. In fact, as our expert notes in her rebuttal testimony:
This view represents a backward-looking assessment of risk, something particularly dangerous for compounds that are persistent and that, as a class, have so often been demonstrated to bioaccumulate and exhibit chronic toxic effects. Current research indicates that the toxicity associated with PFAS is additive, that is, that PFAS toxicity needs to be understood as exposure to all PFAS present in a person’s environment, rather than as exposure to a single compound. The uncontrolled nature of the production, utilization and environmental disposition – coupled with the persistence, bioaccumulation potential, mobility and potential toxicity - associated with PFAS, make members of the class suitable for application of the precautionary principle. The precautionary principle states that, especially in the case of persistent compounds with potential toxicological implications, decision makers err on the side of caution. That is, any scientific uncertainty must be resolved by prevention.
NMOGA has employed five lawyers to defend their right to poison the earth and they have submitted more than 6000 pages of testimony and exhibits to try to overwhelm the opposition and confuse the Commission, including an absurd exhibit titled "Scared to Death: How Chemophobia Threatens Public Health," a treatise on how communications about chemicals results in "mistrust of government and/or industry."
No. It is not poor communication about the risks of PFAS that threatens our public health. It is PFAS themselves, and the fact that industry hid the known dangers and the ubiquitous spread of these toxic chemicals for decades to protect their profits. And our government's absolute and shocking failure to prevent that contamination for half a century!
This proceeding concerns a matter of great public importance, including long-term threats to public health, and the prospect of long-term environmental degradation. NMOGA must not be allowed to prevent the Commission from reviewing all relevant evidence and consulting the most knowledgeable experts in using its authority to protect New Mexico and New Mexicans. Rather than try to exclude it, NMOGA should bring credible, science-based evidence to rebut our testimony, if it is able to do so.
NMOGA claims that they are no longer injecting PFAS during fracking rings false when they are employing so much firepower to defeat this rule. We need you, the public, to SPEAK UP and demand that the Oil Conservation Commission end the oil and gas industry's trade secret protections so that company executives can be held accountable for any and all substances injected into New Mexico lands and aquifers. Without that transparency we are all at risk.
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