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‘How Do You Approve an Underground Toxic Waste Dump Without Telling Nobody?’

Enduring Resources wants to convert this water well into an oil waste injection well on land adjacent to the Navajo Nation in New Mexico.
Jerry Redfern
Enduring Resources wants to convert this water well into an oil waste injection well on land adjacent to the Navajo Nation in New Mexico.

In late 2022, an oil and gas production company petitioned the state of New Mexico to turn a water well into a waste disposal well in the northwest corner of the state. It sits on a plot of state land surrounded by tribal and federal property, and less than a mile from the family home of a well-known Native rights organizer. Now, a pending decision by the New Mexico State Land Commissioner may nix the project and close another chapter in one person’s continuing fight against oil and gas development on ancestral Native lands.

The case also highlights the sometimes antiquated laws and overlapping jurisdictions that govern oil and gas production in New Mexico and the difficulty an individual faces when dealing with nearby wells, even when that person is well-versed in the industry.

Late one night last year, Mario Atencio was researching a paper on New Mexico’s recently extended 20-year moratorium on new oil and gas drilling around Chaco Culture National Historical Park. The long-time Diné (Navajo) organizer is a doctoral candidate in Native American Studies at the University of New Mexico, and the park is just down the road from his father’s home on the eastern edge of the Navajo Nation.

Oil wells and related infrastructure pepper the landscape around his father’s home and the park, and while looking for information about those sites in the New Mexico Oil Conservation Division’s massive online database, he came across paperwork for something unexpected. “I don’t know what keyword search I was doing,” he said, “But I was ‘Whoa, what is this?’”

A Denver-based oil and gas production company, Enduring Resources, had applied to turn a water well in the area into an injection well — instead of pulling water from the well, the company wanted to inject up to 20,000 barrels a day of toxic wastewater from the oil production process. The well is less than a mile from the Atencio family home.

Atencio said he “kind of freaked out” because he learned of the proposed conversion just as the project was to be approved by the state’s Oil Conservation Division.

“How do you approve an underground toxic waste dump without telling nobody?” Atencio asks.

But the company did tell people. Sort of. It followed state rules for oilfield waste injection wells, which include a testing and notification process. The testing ensured that the water in the aquifer contained enough dissolved solids that the project wouldn’t fall under a stricter set of rules. The notification, conducted by Enduring Resources, alerted the public and other oil and gas producers in the area to the project and gave them the chance to challenge it. None did, including Atencio or his family, because they never heard about it.

*   *   *

“Oil production well” is a bit of a misnomer in New Mexico — they are brackish water wells with oil mixed in. On average, such wells in the state produce four barrels of so-called “produced water” for every barrel of oil, and that can reach 100 or more barrels of water to a single barrel of oil in some places. At least one well close to Chaco Culture National Historical Park produces 300- to-1. The produced water is a toxic mix of salts, other minerals and chemicals used in the drilling process. Spills can sterilize land, poison people or pollute aquifers that provide drinking water, and because of that, produced water is highly regulated and can’t be used for anything outside of oilfield operations without a specialized state permit. So companies dispose of it by injecting it deep underground.

Water is “the major cultural resource in the region,” Atencio says. “This is deep underground water … but it’s still part of the underlying Earth.”

In New Mexico, new injection wells require approval from the Oil Conservation Division, and those on state lands also need approval from the State Land Office. Turning a water supply well into an injection well is not common. Dylan Fuge, acting director of the Oil Conservation Division, said, “The request by Enduring was unique. There is no known record of a similar request.”
 

Injection wells have their own sections in both the Oil Conservation Division and State Land Office rulebooks because of produced water’s toxicity. If a company submits an application for an injection well, Oil Conservation Division rules (the more complex and technical of the two) require the company to directly notify nearby “affected persons” — well operators or mineral rights owners who may have competing or overlapping rights near the injection well. The Atencio home is less than a mile away on tribal land, and the family also holds mineral rights on that land. Atencio said those rights are managed by the federal Bureau of Indian Affairs, which may partially explain why the family never heard about the plans for the well.

Oil Conservation Divisionrules for affected persons say that if the land in question is tribal land, “the [Bureau of Land Management], the United States department of the interior, bureau of Indian affairs, and the relevant tribe” should be notified.

However, Sidney Hill, public information officer with the Energy, Minerals and Natural Resources Department, said that the Oil Conservation Division contacted the Bureau of Land Management about the proposed change last August. “Under our current rules, notice to the BIA [Bureau of Indian Affairs] was not required,” he said.

When asked about the notification process, Allison Sandoval, public affairs specialist with the Bureau of Land Management, said, “BLM does not have regulatory authority over the application or the well in question. The BLM does not have any responsibility in cases like this as the well in question does not involve BLM-managed surface or minerals.”

The company also must publish a public notice about the project, giving people 15 days to file an objection or request a hearing. According to the rule, that notice must be printed in a newspaper in the county where the proposed injection well is located.

 

Mario Atencio stands in front of a well operation near the Ojo Encino Chapter House on Navajo Tribal lands in New Mexico.
Jerry Redfern
Mario Atencio stands in front of a well operation near the Ojo Encino Chapter House on Navajo Tribal lands in New Mexico.

Enduring Resources placed an ad in the Rio Rancho Observer, a tiny local paper covering a northern suburb of Albuquerque, more than 100 miles from the well and the Atencios’ family home, in the opposite corner of the county. They never saw the notice. Sandoval County — where the well sits — is three times the size of Rhode Island with one-seventh the population. “They put it in the paper, but the paper was nowhere near the Navajo people,” Atencio said. The biggest paper in the region is in Farmington, bordering tribal lands and 70 miles from the well and the house — but in neighboring San Juan County.

All of this underscores what Atencio has been demanding for years: tribal sovereignty and tribal notification. For years, he and other Navajos have fought for greater consultation, notification and transparency between state, federal and local tribal governments over all aspects of oil and gas production in the region, including waste wells and produced water.

The well sits on one square mile of state land surrounded by tribal and Bureau of Land Management land in the so-called “checkerboard” region in the eastern reaches of the Navajo Nation. On a map, it looks like it sounds, with one-mile blocks of state, tribal and federal lands jumbled together, each government enforcing its own rules and regulations for oil and gas drilling, production and disposal.

By the time Atencio contacted the Oil Conservation Division about the well, the division had already issued it a permit. Enduring Resources had retained Brian Egolf — an attorney who had just stepped down as the Democratic speaker of the New Mexico House of Representatives — to push the application through the government process. (Egolf left the House following the 2022 session.)

A review of more than two years of emails between Egolf and the Oil Conservation Division shows the state office trying to follow its rules — including asking Enduring Resources for extra notifications to two other well operators in the area and the Bureau of Land Management — while often fielding daily emails from Egolf asking about the permit’s status.
 

In February, three months after the well was approved, lawyers from the Western Environmental Law Center and the Center for Biological Diversity petitioned the Oil Conservation Division to deny the permit or reopen the 15-day protest period, noting that the division or Enduring “should have provided notice to the Atencio family, whom, upon information and belief, live on an allotment within half a mile of the proposed well.” They added that the Navajo Times would be “a more appropriate newspaper of general circulation in this region,” because, among other reasons, monolingual Navajo (Diné bizaad) speakers “would not have received or been able to respond to notice posted in English in the Rio Rancho Observer.”

Fuge replied, “After a full review of the well file … I do not find grounds for OCD to reopen this application for protest.”

Atencio also contacted the State Land Office, asking what could be done to stop the well conversion. On Dec. 14, 2023, Stephanie Garcia Richard, the state land commissioner, issued an executive order extending an existing moratorium on new oil and gas leasing on lands around Chaco Culture National Historical Park by 20 years. The moratorium was aimed primarily at preserving artifacts and landscapes considered sacred to the Navajo and other tribes in the region. That same day, Atencio wrote to the State Land Office, congratulating them on the moratorium and then asking the office to thoroughly review Enduring Resources’ disposal well application, because not doing so “is doubling down on Environmental Racism.”

In emails with Capital & Main in April, Joey Keefe, assistant commissioner of communications at the New Mexico State Land Office, said, “The State Land Office is not subject to the State Tribal Collaboration Act.” However, he said, Commissioner Garcia Richard hopes to have formal memorandums of understanding between the State Land Office and each tribe before the end of her term in January 2027. In the meantime, he said, “The decision of whether to lease or otherwise authorize the use of state trust land belongs to the Commissioner of Public Lands.” And when it comes to the proposed Enduring Resources wastewater injection well, he wrote on April 16 that the company was recently informally notified that “the Commissioner does not intend to approve this change.”

Neither Enduring Resources nor Brian Egolf responded to emails and phone messages asking for comment.

*   *   *

Atencio and Enduring Resources already had a history when the company began the well conversion. The company has more than 900 wells in the San Juan Basin of northwest New Mexico, and in February 2019, the company spilled 1,400 barrels of oil mixed with produced water at a well site. That slurry flowed across a dirt road and seeped into a dry streambed that ran by Atencio’s family house. A few days later, another nearby Enduring well caught fire. Atencio says no one received any compensation for the disruption or the pollution of the streambed that cuts through land where one of his cousins runs cattle.

Six months after the spill, Atencio and others filed a complaint requesting a temporary halt on further oil and gas development in the San Juan Basin of northwest New Mexico, alleging that the U.S. Department of the Interior, the Bureau of Land Management and other federal officials had improperly permitted new wells. In that case, Enduring intervened as a defendant alongside the government, since the case threatened the company’s oil and gas production. The company’s opening remarks to join the case read “Enduring Resources uses completion technology that results in net-zero use of fresh water and the elimination of venting and flaring.”

While that may be the case for drilling and preparing new wells, it’s not the case during production. In 2023, Enduring Resources reported venting 27,358 mcf (thousand cubic feet) of climate-damaging natural gas and flaring another 670,556 mcf. According to the EPA’s conservative estimates, that’s equivalent to 12,300 internal combustion engine cars driven for a year. In the end, the government won the case.
 

And last summer, Atencio and a representative from Enduring Resources faced off in a Congressional hearing on a Republican bill to strike down an Interior Department ban on drilling permits on federal lands around Chaco Culture National Historical Park. Anita Ashland, a senior land consultant with Enduring Resources, testified that “Enduring has invested over $25.5 million in a water handling system to eliminate the need to vent or flare methane.” (In October, 2023 the EPA hit Enduring Resources with a $185,000 fine for unauthorized emissions.)

In follow-up questions, Ashland described the 2019 spill near the Atencio home as “undesired, but relatively small” and that blocking oil and gas development around the park would hurt Navajo mineral rights owners.

Atencio fired back that the permit ban happened with strong support from Native groups, and offered a history lesson: “Throughout the 19th and 20th centuries, Diné homelands in Greater Chaco were violently stolen and then reorganized into a checkerboard pattern of federal, state, private, tribal trust, and tribal allotment parcels,” compromising the tribe’s self-determination.

The Republican bill died.

*   *   *

When told that Garcia Richard plans to deny the state land easement Enduring Resources needs for the injection well, Atencio said, “I applaud it.” But he sees the process leading up to that point as another chapter in a long history of environmental racism on Native lands.

“Someone needs to be knocked down a peg or two and be told, ‘Hey — you’re doing a really bad job, a really shitty job, and it has deep impacts,’” Atencio said.

In the meantime, Keefe said that State Land Office attorneys are drawing up the official notice for Enduring Resources that the injection well will not be approved. And if the company protests or takes the state to court over the issue, Atencio says, “You gotta face very harsh words from me.”

This story was updated on May 15 to include comment from the Bureau of Land Management.

Copyright 2024 Capital & Main.

Photos by Jerry Redfern.

 

Visual journalist Jerry Redfern covers the environmental and humanitarian issues across Southeast Asia and other developing regions, as well as at home in the US. His work ranges from the aftermath of American bombs in Laos to agroforestry in Belize to life amid logging in Borneo. Jerry’s photos have appeared in The New York Times, Wall Street Journal, Forbes, and Der Spiegel, among others. He has contributed to four book projects, including Eternal Harvest: The Legacy of American Bombs in Laos (co-authored with Karen Coates), which was a finalist for the IRE Book Award.