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report containing this action and other shall not postpone the effectiveness of PART 52—APPROVAL AND required information to the U.S. Senate, such rule or action. This action may not PROMULGATION OF the U.S. House of Representatives, and be challenged later in proceedings to IMPLEMENTATION PLANS the Comptroller General of the United enforce its requirements. (See section States prior to publication of the rule in 307(b)(2)). ■ 1. The authority citation for part 52 the Federal Register. A major rule continues to read as follows: cannot take effect until 60 days after it List of Subjects in 40 CFR Part 52 Authority: 42 U.S.C. 7401 et seq. is published in the Federal Register. Environmental protection, This action is not a ‘‘major rule’’ as Administrative practice and procedure, Subpart AA-Missouri defined by 5 U.S.C. 804(2). Air pollution control, Incorporation by Under section 307(b)(1) of the CAA, reference, Intergovernmental relations, ■ 2. In § 52.1320: petitions for judicial review of this Nitrogen dioxide, Ozone, Particulate ■ action must be filed in the United States a. Revise the section heading. Matter, Reporting and recordkeeping ■ Court of Appeals for the appropriate requirements, Sulfur oxides. b. In the table in paragraph (c), under circuit by August 29, 2016. Filing a Chapter 6, add entries ‘‘10–6.372’’ and petition for reconsideration by the Dated: June 16, 2016. ‘‘10–6.376’’ in numerical order. Administrator of this final rule does not Mark Hague, The revisions read as follows: affect the finality of this action for the Regional Administrator, Region 7. purposes of judicial review nor does it For the reasons stated in the § 52.1320 Identification of plan. extend the time within which a petition preamble, EPA amends 40 CFR part 52 * * * * * for judicial review may be filed, and as set forth below: (c)* * *

EPA-APPROVED MISSOURI REGULATIONS

State effective Missouri citation Title date EPA approval date Explanation

Missouri Department of Natural Resources

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Chapter 6—Air Quality Standards, Definitions, Sampling and Reference Methods, and Air Pollution Control Regulations for the State of Missouri

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10–6.372 ...... Cross-State Air Pollution Rule Annual NOX Trading 12/30/15 6/28/16 [Insert Federal Allowance Allocations. Register citation]. 10–6.376 ...... Cross-State Air Pollution Rule Annual SO2 Trading 12/30/15 6/28/16 [Insert Federal Allowance Allocations. Register citation].

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* * * * * and the operational integrity of publicly this final rule reflect current industry [FR Doc. 2016–15048 Filed 6–27–16; 8:45 am] owned treatment works (POTWs) by practices for onshore unconventional oil BILLING CODE 6560–50–P establishing pretreatment standards that and gas extraction facilities. Therefore, prevent the discharge of in EPA does not project that the final rule wastewater from onshore will impose any costs or lead to ENVIRONMENTAL PROTECTION unconventional oil and gas (UOG) removals, but will ensure that AGENCY extraction facilities to POTWs. UOG current industry best practice is 40 CFR Part 435 extraction wastewater can be generated maintained over time. in large quantities and contains DATES: The final rule is effective on [EPA–HQ–OW–2014–0598; FRL–9947–87– constituents that are potentially harmful August 29, 2016. In accordance with 40 OW] to human health and the environment. CFR part 23, this regulation shall be RIN 2040–AF35 Certain UOG extraction wastewater considered issued for purposes of constituents are not typical of POTW judicial review at 1 p.m. Eastern time on Effluent Limitations Guidelines and influent wastewater and can be July 12, 2016. Under section 509(b)(1) of Standards for the Oil and Gas discharged, untreated, from the POTW Extraction Point Source Category to the receiving stream; can disrupt the the CWA, judicial review of this operation of the POTW (e.g., by regulation can be had only by filing a AGENCY: Environmental Protection petition for review in the U.S. Court of Agency (EPA). inhibiting biological treatment); can accumulate in biosolids (sewage Appeals within 120 days after the ACTION: Final rule. sludge), limiting their beneficial use; regulation is considered issued for purposes of judicial review. Under SUMMARY: The Environmental Protection and can facilitate the formation of Agency (EPA) is publishing a final harmful disinfection by-products section 509(b)(2), the requirements in (CWA) regulation that (DBPs). Based on the information this regulation may not be challenged protects human health, the environment collected by EPA, the requirements of later in civil or criminal proceedings

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brought by EPA to enforce these Organization of This Preamble B. Impacts From the Discharge of requirements. Pollutants Found in UOG Extraction Table of Contents Wastewater ADDRESSES: The EPA has established a I. Regulated Entities and Supporting C. Impact on Surface Water Designated docket for this action under Docket ID Documentation Uses No. EPA–HQ–OW–2014–0598. All A. Regulated Entities 1. Drinking Water Uses B. Supporting Documentation 2. Aquatic Life Support Uses documents in the docket are listed on II. Legal Authority 3. Livestock Watering Uses the http://www.regulations.gov Web III. Purpose and Summary of Final Rule 4. Irrigation Uses site. Although listed in the index, some A. Purpose and Summary of the Final Rule 5. Industrial Uses information is not publicly available, B. Summary of Costs and Benefits VIII. Regulatory Implementation of the e.g., confidential business information IV. Background Standard (CBI) or other information whose A. Clean Water Act A. Implementation Deadline B. Effluent Limitations Guidelines and B. Upset and Bypass Provisions disclosure is restricted by statute. Standards Program C. Variances and Modifications Certain other material, such as 1. Best Practicable Control Technology IX. Statutory and Executive Order Reviews copyrighted material, is not placed on Currently Available (BPT) A. Executive Order 12866: Regulatory the Internet and will be publicly 2. Best Conventional Pollutant Control Planning and Review and Executive available only in hard copy form. Technology (BCT) Order 13563: Improving Regulation and 3. Best Available Technology Economically Regulatory Review Publicly available docket materials are Achievable (BAT) available electronically through http:// B. Paperwork Reduction Act 4. Best Available Demonstrated Control C. Regulatory Flexibility Act www.regulations.gov. A detailed record Technology (BADCT)/New Source D. Unfunded Mandates Reform Act index, organized by subject, is available Performance Standards (NSPS) E. Executive Order 13132: Federalism on EPA’s Web site at https:// 5. Pretreatment Standards for Existing F. Executive Order 13175: Consultation www.epa.gov/eg/unconventional-oil- Sources (PSES) and Pretreatment and Coordination With Indian Tribal Standards for New Sources (PSNS) and-gas-extraction-effluent-guidelines. Governments C. Subcategorization G. Executive Order 13045: Protection of FOR FURTHER INFORMATION CONTACT: For D. Oil and Gas Extraction Effluent Children From Environmental Health Guidelines Rulemaking History Risks and Safety Risks more information, see EPA’s Web site: 1. Subpart C: Onshore https://www.epa.gov/eg/ H. Executive Order 13211: Energy Effects 2. Subpart E: Agricultural and Wildlife Use I. National Technology Transfer and unconventional-oil-and-gas-extraction- E. State Pretreatment Requirements That Advancement Act Apply to UOG Extraction Wastewater effluent-guidelines. For technical J. Executive Order 12898: Federal Actions F. Related Federal Requirements in the information, contact Karen Milam, To Address Environmental Justice in Safe Drinking Water Act Engineering and Analysis Division, Minority Populations and Low-Income V. Industry Profile Office of Science and Technology VI. Final Rule Populations (4305T), Environmental Protection A. Scope/Applicability K. Congressional Review Act (CRA) Agency, 1200 Pennsylvania Ave. NW., B. Option Selection I. Regulated Entities and Supporting Washington, DC 20460; telephone 1. PSES Documentation number: 202–566–1915; email address: 2. PSNS [email protected]. 3. Pollutants Selected for Regulation Pass- A. Regulated Entities Through Analysis SUPPLEMENTARY INFORMATION: VII. Environmental Impacts Entities potentially regulated by this A. Pollutants final action include:

North American Industry Category Examples of regulated entities Classification System (NAICS) Code

Industry ...... Crude Petroleum and Natural Gas Extraction ...... 211111 Natural Gas Liquid Extraction ...... 211112

This section is not intended to be preceding FOR FURTHER INFORMATION II. Legal Authority exhaustive, but rather provides a guide CONTACT section. for readers regarding entities likely to be EPA finalizes this regulation under B. Supporting Documentation regulated by this final action. Other the authorities of sections 101, 301, 304, types of entities that do not meet the 306, 307, 308, and 501 of the CWA, 33 The final rule is supported by a U.S.C. 1251, 1311, 1314, 1316, 1317, above criteria could also be regulated. number of documents including the 1318, and 1361. To determine whether your facility Technical Development Document for would be regulated by this final action, the Effluent Limitations Guidelines and III. Purpose and Summary of Final you should carefully examine the Standards for the Oil and Gas Extraction Rule applicability criteria listed in 40 CFR Point Source Category (TDD), Document A. Purpose and Summary of the Final 435.30 and the definitions in 40 CFR No. EPA–820–R–16–003 (DCN Rule 435.33(b) of the final rule and detailed SGE01188). This document is available further in Section VI, of this preamble. in the public record for this final rule Responsible development of If you still have questions regarding the and on EPA’s Web site at https:// America’s oil and gas resources offers applicability of this final action to a www.epa.gov/eg/unconventional-oil- important economic, energy security, particular entity, consult the person and-gas-extraction-effluent-guidelines. and environmental benefits. EPA has listed for technical information in the been working with states and other

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stakeholders to understand and address This final rule applies to a subset of constituents that POTWs are not potential impacts of hydraulic oil and gas extraction, i.e., onshore designed to remove. Certain UOG fracturing, an important process extraction from shale and/or tight extraction wastewater constituents are involved in producing unconventional geologic formations (referred to not typical of POTW influent oil and gas, to help ensure public hereafter as unconventional oil and gas wastewater and can be discharged, confidence that oil and gas production (UOG) resources). UOG extraction untreated, from the POTW to the is conducted in a safe and responsible wastewater can be generated in large receiving stream; can disrupt the manner. This final rule fills a gap in quantities and contains constituents that operation of the POTW (e.g., by existing federal wastewater regulations are potentially harmful to human health inhibiting biological treatment); can to ensure that the current industry and the environment. Wastewater from accumulate in biosolids (sewage practice of not sending wastewater UOG wells often contains high sludge), limiting their beneficial use; discharges from this sector to POTWs concentrations of total dissolved solids and can facilitate the formation of continues into the future. This rule does (TDS) (salt content). The wastewater can harmful DBPs. not address the practice of underground also contain various organic chemicals, Where UOG extraction wastewaters injection of wastewater discharges from inorganic chemicals, metals, and have been discharged through POTWs this sector, which is covered under the naturally-occurring radioactive and private wastewater treatment plants Safe Drinking Water Act (SDWA) (see materials (referred to as technologically in the past, it has been documented that Chapter A of the TDD). enhanced naturally occurring the receiving waters have elevated Recent advances in the well radioactive material or TENORM).1 This levels of TDS, specifically chlorides and completion process, combining potentially harmful wastewater creates a bromide (DCN SGE01328). The hydraulic fracturing and horizontal need for appropriate wastewater concentration of TDS in UOG extraction drilling, have enhanced the management infrastructure and wastewater can be high enough that if technological and economic feasibility management practices. Historically, discharged untreated to a surface water of oil and natural gas extraction from operators of oil and gas extraction it has the potential to adversely affect a both existing and new resources. As a facilities primarily managed their number of the designated uses of the result, in 2013, United States (U.S.) wastewater via underground injection surface water, including use as a crude oil and natural gas production (where available). Where UOG wells drinking water source, aquatic life reached their highest levels in more were drilled in areas with limited support, livestock watering, irrigation, than 15 and 30 years, respectively (DCN underground injection wells, and/or and industrial use. High concentrations SGE01192). Further, the Department of there was a lack of wastewater of TDS can impact aquatic biota by Energy (DOE) projects that natural gas management alternatives, it became causing increased receiving water production in the U.S. will increase by more common for operators to look to salinity, osmotic imbalances, and toxic 45 percent by 2040, compared to 2013 POTWs and private wastewater effects from individual ions present in production levels (DCN SGE01192). treatment facilities to manage their the TDS. Increases in instream salinity Similarly, the DOE projects that by wastewater. have been shown to cause shifts in 2020, crude oil production in the U.S. POTWs collect wastewater from biotic communities, limit biodiversity, will increase by 43 percent compared to homes, commercial buildings, and exclude less-tolerant species and cause 2013 production levels (DCN industrial facilities and pipe it through acute or chronic effects at specific life SGE01192). sewer lines to the stages (DCN SGE00946). Direct discharges of oil and gas plant. In some cases, industrial Discharges of bromide in industrial extraction wastewater pollutants from dischargers can haul wastewater to the wastewater upstream of drinking water onshore oil and gas resources to waters treatment plant by tanker truck. The intakes—either directly or indirectly of the U.S. have been regulated since industrial wastewater, commingled with through POTWs—have led to the 1979 under the existing Oil and Gas domestic wastewater, is treated by the formation of carcinogenic disinfection Effluent Limitations Guidelines and POTW and discharged to a receiving by-products (brominated DBPs, in Standards (ELGs) (40 CFR part 435), the waterbody. Most POTWs, however, are particular trihalomethanes) at drinking majority of which fall under subpart C, designed primarily to treat municipally- water utilities. Recent studies indicate the Onshore Subcategory. Oil and gas generated, not industrial, wastewater. that UOG extraction wastewaters extraction activities subject to subpart C They typically provide at least contain various inorganic and organic include production, field exploration, secondary level treatment and, thus, are DBP precursors that can react with drilling, well completion, and well designed to remove suspended solids disinfectants used by POTWs, and treatment. The limitations for direct and organic material using biological promote the formation of DBPs or alter dischargers in the Onshore Subcategory treatment. As mentioned previously, speciation of DBPs, particularly represent Best Practicable Control wastewater from UOG extraction can brominated-DBPs, which are suspected Technology Currently Available (BPT). contain high concentrations of TDS, to be among the more toxic DBPs (DCN Based on the availability and economic radioactive elements, metals, chlorides, SGE00535; DCN SGE00985). DBPs have practicability of underground injection sulfates, and other dissolved inorganic been shown to have both adverse technologies, the BPT-based limitations human health and ecological affects for direct dischargers require zero 1 Naturally occurring radioactive materials that (DCN SGE00535; DCN SGE01126). discharge of pollutants to waters of the have been concentrated or exposed to the accessible Section 307(b) of the CWA provides U.S. However, there are currently no environment as a result of human activities such as EPA authority to establish nationally requirements in subpart C that apply to manufacturing, mineral extraction, or water applicable pretreatment standards for processing are referred to as technologically onshore oil and gas extraction facilities enhanced naturally occurring radioactive material industrial categories that discharge that are ‘‘indirect dischargers,’’ i.e., (TENORM). ‘‘Technologically enhanced’’ means indirectly (i.e., send wastewater to any those that send their discharges to that the radiological, physical, and chemical POTW); this authority applies to key POTWs (municipal wastewater properties of the radioactive material have been pollutants, such as TDS and its altered by having been processed, or beneficiated, treatment facilities) which treat the or disturbed in a way that increases the potential constituents, that are not susceptible to water before discharging it to waters of for human and/or environmental exposures. (See treatment by POTWs, or for pollutants the U.S. EPA 402–R–08–005–V2) that would interfere with the operation

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of POTWs. Generally, EPA designs facilities have discharged to POTWs in EPA promulgates national effluent nationally applicable pretreatment the past and because the potential guidelines and new source performance standards for categories of industry remains that some facilities may standards for major industrial categories (categorical pretreatment standards) to consider discharging to POTWs in the for three classes of pollutants: (1) ensure that wastewaters from direct and future. Conventional pollutants (total indirect industrial dischargers are suspended solids, oil and grease, subject to similar levels of treatment. IV. Background biochemical oxygen demand (BOD5), EPA, in its discretion under section A. Clean Water Act fecal coliform, and pH), as outlined in 304(g) of the Act, periodically evaluates CWA section 304(a)(4) and 40 CFR indirect dischargers not subject to Congress passed the CWA to ‘‘restore 401.16; (2) toxic pollutants (e.g., metals categorical pretreatment standards to and maintain the chemical, physical, such as arsenic, mercury, selenium, and identify potential candidates for new and biological integrity of the Nation’s chromium; and organic pollutants such pretreatment standards. Until issuance waters.’’ 33 U.S.C. 1251(a). The Act as benzene, benzo-a-pyrene, phenol, and of this final rule, EPA had not establishes a comprehensive program naphthalene), as outlined in section established nationally applicable for protecting our nation’s waters. 307(a) of the Act, 40 CFR 401.15 and 40 pretreatment standards for the onshore Among its core provisions, the CWA CFR part 423, appendix A; and (3) oil and gas extraction point source prohibits the discharge of pollutants nonconventional pollutants, which are subcategory. from a point source to waters of the those pollutants that are not categorized This final rule establishes technology- U.S., except as authorized under the as conventional or toxic (e.g., ammonia- based categorical pretreatment Act. Under section 402 of the CWA, N, phosphorus, and TDS). standards under the CWA for discharges discharges may be authorized through a Under section 307(b) of the CWA, of pollutants into POTWs from existing National Pollutant Discharge there are general and specific and new onshore UOG extraction Elimination System (NPDES) permit. prohibitions on the discharge to POTWs facilities in subpart C of 40 CFR part 435 The CWA establishes a two-pronged of pollutants in specified circumstances (80 FR 18557, April 7, 2015). The rule approach for these permits, technology- in order to prevent ‘‘pass through’’ or will fill a gap in federal CWA based controls that establish the floor of ‘‘interference.’’ Pass through occurs regulations and address concerns performance for all dischargers, and whenever the introduction of pollutants regarding the level of treatment -based limits where the from a user will result in a discharge provided by POTWs for UOG technology-based limits are insufficient that causes or contributes to a violation wastewater, potential interference with for the discharge to meet applicable of any requirement of the POTW permit. treatment processes, and potential water quality standards. To serve as the See 40 CFR 403.3(p). Interference means impacts on water quality and aquatic basis for the technology-based controls, a discharge that, among other things, life impacts that could result from the CWA authorizes EPA to establish inhibits or disrupts the POTW or inadequate treatment. Consistent with national technology-based effluent prevents biosolids use consistent with existing BPT-based requirements for limitations guidelines and new source the POTW’s chosen method of disposal. direct dischargers in this subcategory, performance standards for discharges See 40 CFR 403.3(k). These general and this final rule establishes pretreatment from different categories of point specific prohibitions must be standards for existing and new sources sources, such as industrial, commercial, implemented through local limits (PSES and PSNS, respectively) that and public sources, that discharge established by POTWs in certain cases. require zero discharge of wastewater directly into waters of the U.S. See 40 CFR 403.5(c). POTWs with pollutants associated with onshore UOG approved pretreatment programs must extraction facilities to POTWs. Direct dischargers (those discharging develop and enforce local limits to This final rule does not include directly to waters of the U.S.) must implement the general prohibitions on pretreatment standards for wastewater comply with effluent limitations in user discharges that pass through or pollutants associated with conventional NPDES permits. Technology-based interfere with the POTW and implement oil and gas extraction facilities or effluent limitations (TBELs) in NPDES specific prohibitions in 40 CFR 403.5(b). coalbed methane extraction facilities. permits for direct dischargers are In the case of POTWs that are not EPA is reserving consideration of any derived from effluent limitations required to develop a pretreatment such standards for a future rulemaking, guidelines (CWA sections 301 and 304) program, the POTWs must develop local if appropriate. See Section V1.A. and new source performance standards limits where there is interference or (CWA section 306) promulgated by EPA. pass through and the limits are B. Summary of Costs and Benefits Alternatively, TBELs may be established necessary to ensure compliance with the Because the data reviewed by EPA based on best professional judgment POTW’s NPDES permit or biosolids use. show that the UOG extraction industry (BPJ) where EPA has not promulgated The CWA also authorizes EPA to is not currently managing wastewaters an applicable effluent guideline or new promulgate nationally applicable by sending them to POTWs, the final source performance standard (CWA pretreatment standards that restrict rule is not projected to affect current section 402(a)(1)(B) and 40 CFR 125.3). pollutant discharges from facilities that industry practice or to result in The effluent guidelines and new source discharge pollutants indirectly, by incremental compliance costs or performance standards established by sending wastewater to POTWs, as monetized benefits. UOG extraction regulation for categories of industrial outlined in sections 307(b) and (c) and wastewater is typically managed dischargers are based on the degree of 33 U.S.C. 1317(b) and (c). Specifically, through disposal via underground control that can be achieved using the CWA authorizes EPA to establish injection wells, reuse/recycle in various levels of pollution control pretreatment standards for those subsequent fracturing jobs, or transfer to technology, as specified in the Act. pollutants in wastewater from indirect a centralized waste treatment (CWT) Additional limitations based on water dischargers that EPA determines are not facility (see 80 FR 18570, April 7, 2015). quality standards are also required to be susceptible to treatment by a POTW or EPA is promulgating this rule as a included in the permit where necessary which would interfere with POTW backstop measure because onshore to meet water quality standards. CWA operations. CWA sections 307(b) and unconventional oil and gas extraction section 301(b)(1)(C). (c). Under section 301(b)(1)(A) and

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301(b)(2)(A) and the legislative history standards for direct discharges and discharge of toxic and nonconventional of the 1977 CWA amendments, subsection 5 describes standards for pollutants. In general, BAT-based pretreatment standards are technology- indirect discharges. effluent guidelines and new source based and analogous to TBELs for direct performance standards represent the 1. Best Practicable Control Technology dischargers for the removal of toxic best available economically achievable Currently Available (BPT) pollutants. As explained in the statute performance of facilities in the and legislative history, the combination Traditionally, EPA defines BPT industrial subcategory or category. of pretreatment and treatment by the effluent limitations based on the average Following the statutory language, EPA POTW is intended to achieve the level of the best performances of facilities considers the technological availability of treatment that would be required if within the industry, grouped to reflect and the economic achievability in the industrial source were making a various ages, sizes, processes, or other determining what level of control direct discharge. Conf. Rep. No. 95–830, common characteristics. BPT effluent represents BAT. CWA section at 87 (1977), reprinted in U.S. Congress. limitations control conventional, toxic, 301(b)(2)(A). Other statutory factors that Senate. Committee on Public Works and nonconventional pollutants. In EPA considers in assessing BAT are the (1978), A Legislative History of the specifying BPT, EPA looks at a number cost of achieving BAT effluent CWA of 1977, Serial No. 95–14 at 271 of factors. EPA first considers the cost reductions, the age of equipment and (1978). As such, in establishing of achieving effluent reductions in facilities involved, the process pretreatment standards, EPA’s relation to the effluent reduction employed, potential process changes, consideration of pass through for benefits. The Agency also considers the and non-water quality environmental national technology-based categorical age of equipment and facilities, the impacts, including energy requirements pretreatment standards differs from that processes employed, engineering and such other factors as the described above for general aspects of the control technologies, any Administrator deems appropriate. CWA pretreatment standards. For categorical required process changes, non-water section 304(b)(2)(B). The Agency retains pretreatment standards, EPA’s approach quality environmental impacts considerable discretion in assigning the for pass through satisfies two competing (including energy requirements), and weight to be accorded these factors. objectives set by Congress: (1) That such other factors as the Administrator Weyerhaeuser Co. v. Costle, 590 F.2d standards for indirect dischargers be deems appropriate. See CWA section 1011, 1045 (D.C. Cir. 1978). equivalent to standards for direct 304(b)(1)(B). If, however, existing 4. Best Available Demonstrated Control dischargers; and (2) that the treatment performance is uniformly inadequate, Technology (BADCT)/New Source capability and performance of the EPA can establish limitations based on Performance Standards (NSPS) POTWs be recognized and taken into higher levels of control than are account in regulating the discharge of currently in place in an industrial NSPS reflect effluent reductions that pollutants from indirect dischargers. category, when based on an Agency are achievable based on the best determination that the technology is available demonstrated control B. Effluent Limitations Guidelines and available in another category or technology (BADCT). Owners of new Standards Program subcategory and can be practically facilities have the opportunity to install EPA develops ELGs that are applied. the best and most efficient production technology-based regulations for processes and wastewater treatment specific categories of dischargers. EPA 2. Best Conventional Pollutant Control technologies. As a result, NSPS should bases these regulations on the Technology (BCT) represent the most stringent controls performance of control and treatment For discharges of conventional attainable through the application of the technologies. The legislative history of pollutants from existing industrial point BADCT for all pollutants (that is, CWA section 304(b), which is the heart sources, the CWA requires EPA to conventional, nonconventional, and of the effluent guidelines program, identify additional levels of effluent toxic pollutants). In establishing NSPS, describes the need to press toward reduction that can be achieved with EPA is directed to take into higher levels of control through research BCT. In addition to other factors consideration the cost of achieving the and development of new processes, specified in section 304(b)(4)(B), the effluent reduction and any non-water modifications, replacement of obsolete CWA requires that EPA establish BCT quality environmental impacts and plants and processes, and other limitations after consideration of a two- energy requirements. CWA section improvements in technology, taking into part ‘‘cost reasonableness’’ test. In a July 306(b)(1)(B). account the cost of controls. Congress 9, 1986 Federal Register Notice, EPA 5. Pretreatment Standards for Existing has also stated that EPA need not published and explained its Sources (PSES) and Pretreatment consider water quality impacts on methodology for the development of Standards for New Sources (PSNS) individual water bodies as the BCT limitations in (51 FR 24974). guidelines are developed. See Statement Section 304(a)(4) designates the As discussed previously, section of Senator Muskie (October 4, 1972), following as conventional pollutants: 307(b) of the Act authorizes EPA to reprinted in U.S. Senate Committee on BOD5, (TSS), issue pretreatment standards for Public Works, Legislative History of the fecal coliform, pH, and any additional discharges of pollutants from existing Control Act pollutants defined by the Administrator sources to POTWs. Section 307(c) of the Amendments of 1972, Serial No. 93–1, as conventional. The Administrator Act authorizes EPA to promulgate at 170. designated oil and grease as an pretreatment standards for new sources There are four types of standards additional conventional pollutant on (PSNS). Both standards are designed to applicable to direct dischargers July 30, 1979 (44 FR 44501; 40 CFR part prevent the discharge of pollutants that (facilities that discharge directly to 401.16). pass through, interfere with, or are waters of the U.S.), and two types of otherwise incompatible with the standards applicable to indirect 3. Best Available Technology operation of POTWs. Categorical dischargers (facilities that discharge to Economically Achievable (BAT) pretreatment standards for existing POTWs), described in detail later on. BAT represents the second level of sources are technology-based and are Subsections 1 through 4 describe stringency for controlling direct analogous to BPT and BAT effluent

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limitations guidelines, and thus the drilling, production, well treatment, and management, storage, and disposal of Agency typically considers the same well completion activities in the UOG extraction wastewater, including factors in promulgating PSES for toxic onshore oil and gas industry. Although regulations concerning pollutant and non-conventional pollutants as it UOG resources occur in offshore and discharges to POTWs from oil and gas considers in promulgating BAT. See coastal regions, recent development of extraction facilities. In addition to Natural Resources Defense Council v. UOG resources in the U.S. has occurred pretreatment requirements, some states EPA, 790 F.2d 289, 292 (3rd Cir. 1986). primarily in onshore regions, to which have indirectly addressed the issue of Similarly, in establishing pretreatment the regulations in subpart C (Onshore) pollutant discharges to POTWs by standards for new sources, the Agency and subpart E (Agricultural and Wildlife limiting the management and disposal typically considers the same factors in Water Use) apply. Accordingly, this rule options available for operators to use. promulgating PSNS as it considers in addresses the gap in onshore During initial development of promulgating NSPS (BADCT). regulations, and only the regulations Marcellus shale gas resources, some that apply to onshore oil and gas operators managed UOG wastewater by C. Subcategorization extraction are described in more detail transfer to POTWs. EPA did not identify In developing ELGs, EPA can divide here. other areas in the U.S. where POTWs an industry category into groupings routinely accepted UOG extraction called ‘‘subcategories’’ to provide a 1. Subpart C: Onshore wastewaters. Chapter A of the TDD method for addressing variations among Subpart C applies to facilities engaged summarizes how Pennsylvania, Ohio, products, processes, treatment costs, in the production, field exploration, Michigan, and West Virginia responded and other factors that affect the drilling, well completion, and well to UOG extraction wastewater determination of the ‘‘best available’’ treatment in the oil and gas extraction discharges to their POTWs. EPA did not technology. See Texas Oil & Gas Ass’n. industry which are located landward of identify any states that require zero v. US EPA, 161 F.3d 923, 939–40 (5th the inner boundary of the territorial discharge of pollutants from UOG Cir.1998). Regulation of a category by seas—and which are not included in the operations to POTWs in the same subcategories provides that each definition of other subparts—including manner as this final rule. subcategory has a uniform set of effluent subpart D (Coastal). The regulations at limitations or pretreatment standards 40 CFR 435.32 specify the following for F. Related Federal Requirements in the that take into account technological BPT: There shall be no discharge of Safe Drinking Water Act achievability, economic impacts, and wastewater pollutants into navigable As required by SDWA section 1421, non-water quality environmental waters from any source associated with EPA has promulgated regulations to impacts unique to that subcategory. In production, field exploration, drilling, protect underground sources of drinking some cases, effluent limitations or well completion, or well treatment (i.e., water through Underground Injection pretreatment standards within a produced water, drilling muds, drill Control (UIC) programs that regulate the subcategory can be different based on cuttings, and produced sand). injection of fluids underground. These consideration of these same factors, regulations are found at 40 CFR parts which are identified in CWA section 2. Subpart E: Agricultural and Wildlife 144–148, and specifically prohibit any 304(b)(2)(B). The CWA requires EPA, in Use underground injection not authorized developing effluent guidelines and Subpart E applies to onshore facilities by UIC permit. 40 CFR 144.11. The pretreatment standards, to consider a located in the continental U.S. and west regulations classify underground number of different factors, which are of the 98th meridian for which the injection into six classes; wells that also relevant for subcategorization. The produced water has a use in agriculture inject fluids brought to the surface in CWA also authorizes EPA to take into or wildlife propagation when connection with oil and gas production account other factors that the discharged into navigable waters. are classified as Class II UIC wells. Administrator deems appropriate. CWA Definitions in 40 CFR 435.51(c) explain Thus, onshore oil and gas extraction section 304(b). that the term ‘‘use in agricultural or facilities that seek to meet the zero wildlife propagation’’ means that (1) the discharge requirements of the existing D. Oil and Gas Extraction Effluent produced water is of good enough ELGs or final pretreatment standard Guidelines Rulemaking History quality to be used for wildlife or through underground injection of The Oil and Gas Extraction industry livestock watering or other agricultural wastewater must obtain a Class II UIC is subcategorized in 40 CFR part 435 as uses; and (2) the produced water is permit for such disposal or take the follows: (1) Subpart A: Offshore; (2) actually put to such use during periods wastewater to an appropriately subpart C: Onshore; (3) subpart D: of discharge. The regulations at 40 CFR permitted injection facility. Coastal; (4) subpart E: Agricultural and 435.52 specify that the only allowable V. Industry Profile Wildlife Water Use; and (5) subpart F: discharge is produced water, with an oil Stripper. EPA promulgated the first Oil and grease concentration not exceeding EPA gathered information on the and Gas Extraction ELGs (40 CFR part 35 milligrams per liter (mg/L). The BPT industry via the North American 435) in 1979 establishing BPT-based regulations prohibit the discharge of Industry Classification System (NAICS), limitations for the Offshore, Onshore, waste pollutants into navigable waters which is a standard created by the U.S. Coastal, and Agricultural and Wildlife from any source (other than produced Census for use in classifying business Use subcategories. EPA established water) associated with production, field establishments within the U.S. BAT- and NSPS-based limits for certain exploration, drilling, well completion, economy. The industry category affected subcategories in 1993 (Offshore), 1996 or well treatment (i.e., drilling muds, by this final rule is the Oil and Gas (Coastal), and 2001 (Synthetic-based drill cuttings, produced sands). Extraction industry (NAICS code drilling fluids). EPA also established 21111). The industry has two segments: pretreatment standards for one E. State Pretreatment Requirements Crude Petroleum and Gas Extraction subcategory (Coastal) in 1996. That Apply to UOG Extraction (NAICS 211111) which is made up of The previously established subpart C Wastewater facilities that have wells that produce (Onshore) regulation covers wastewater In addition to applicable federal petroleum or natural gas or produce discharges from field exploration, requirements, some states regulate the crude petroleum from surface shale or

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tar sands; and Natural Gas Liquid final rule establishes requirements for current industry practice: Disposal in Extraction (NAICS 211112), which is wastewater discharges from UOG UIC wells, wastewater reuse/recycling made up of facilities that recover liquid extraction facilities to POTWs. It does to fracture 3 another well, or hydrocarbons from oil and gas field not establish requirements for management by centralized waste gases and sulfur from natural gas. wastewater discharges from treatment (CWT) facilities—none of According to data from the Statistics of conventional oil and gas extraction which involve sending wastewater to U.S. Businesses (SUSB), in 2012 there (COG) facilities. EPA reserves POTWs. Thus, for PSES, the final rule were 6,646 firms in the overall Oil and consideration of any such standards for establishes a zero discharge standard on Gas Extraction (OGE) industry. Of those a future rulemaking, if appropriate. all pollutants in UOG extraction firms, 98.5% were considered small The final rule defines unconventional wastewater. business based on the Small Business oil and gas resources as ‘‘crude oil and Generally, EPA designs pretreatment Administration (SBA) criteria definition natural gas produced by a well drilled standards to meet Congress’ objective to of a small firm in this industry as having into a shale and/or tight formation ensure that wastewaters from direct and 500 or fewer employees. In 2012, Oil (including, but not limited to, shale gas, indirect industrial dischargers are and Gas Extraction sector firms shale oil, tight gas, and tight oil).’’ This subject to similar levels of pollutant employed, on average, 19 employees definition is generally consistent with removals prior to discharge to waters of and had an estimated average $53 other readily available sources. For the U.S. See Chemical Manufacturers million in revenue per firm. additional information, see Chapter B of Assn. v. EPA, 870 F.2d 177, 245 (5th Cir. EPA reviewed financial performance the TDD. 1989). This means that, typically, the of oil and gas firms from 2006 to 2014. As a point of clarification, although requirements for indirect dischargers are Generally, over the analysis period, all coalbed methane would fit this analogous to those for direct segments of the oil and gas industry definition, the final pretreatment dischargers. As explained in Section showed a similar profile of revenue standards do not apply to pollutants in IV.C., the existing BPT-based growth; however, reviews of financial wastewater discharges associated with requirement for direct dischargers in the performance and condition metrics coalbed methane extraction to POTWs. Onshore Subcategory is zero discharge indicate a recent deterioration in EPA notes that the requirements in the of wastewater pollutants into waters of financial performance and condition for existing effluent guidelines for direct the U.S. from any source associated OGE firms since mid-2014 due to the dischargers also do not apply to coalbed with production, field exploration, fall in crude oil and natural gas prices. methane extraction, as this industry did drilling, well completion, or well The prediction of slow price recovery not exist at the time that the effluent treatment. indicates that the financial condition of guidelines were developed and was not As explained in Section XII.E of the OGE firms in general may not recover in considered by the Agency in proposal (80 FR 18570, April 7, 2015), the short term, though the crude oil and establishing the effluent guidelines EPA evaluated the practices currently natural gas prices are forecast to (DCN SGE00761). To reflect the fact that used to manage UOG extraction increase through 2040 (DCN SGE01192). neither the final pretreatment standards wastewaters. Based on the information While many factors will affect further nor the existing effluent guideline reviewed as part of this final UOG development, and forecasts requirements apply to coalbed methane rulemaking, EPA concludes that current inevitably involve considerable extraction, EPA expressly reserved a industry practice is to not discharge uncertainty, production is expected to separate unregulated subcategory for pollutants from onshore UOG extraction continue to increase. EIA forecasts that coalbed methane in this final rule. For to POTWs.4 Rather, the vast majority of by 2040, shale gas will account for 55 information on coalbed methane, see this wastewater is managed by disposal percent of U.S. natural gas production, https://www.epa.gov/eg/coalbed- in underground injection wells and/or with tight gas as the second leading methane-extraction-industry. re-use in fracturing another well. A source at 22 percent, and shale/tight small, but in some geographic areas B. Option Selection oil 2 will account for 45 percent of total increasing, portion of the industry also U.S. oil production (DCN SGE01192). EPA analyzed three regulatory options transfers its wastewater to CWT See the industry profile (DCN at proposal, the details of which were facilities.5 SGE01277) for more information. discussed fully in the document The technology basis for the published on April 7, 2015 (80 FR promulgated PSES is disposal in UIC VI. Final Rule 18557). In general, these three options wells, wastewater reuse/recycling to A. Scope/Applicability ranged from requiring zero discharge of fracture another well, or management by pollutants to POTWs, establishing non- CWT facilities. Because all existing Consistent with the proposal, the zero pretreatment standards, or UOG extraction facilities currently scope of this final rule is specific to establishing no national pretreatment employ alternative wastewater pretreatment standards for onshore oil standards. Depending on the interests management practices other than and gas extraction facilities (subpart C). represented, public commenters EPA did not propose to reopen the supported virtually all of the regulatory 3 In some cases, industry has also re-used/ regulatory requirements applicable to options that EPA proposed—from the recycled the water to drill another well that is not any other subpart or the requirements fractured. least stringent to the most stringent. 4 for direct dischargers in subpart C. EPA solicited additional data and information Thus, in developing this final rule, EPA on current industry practice as well as its Rather, the scope of the final rule again considered the same three preliminary finding that no UOG facilities currently amends subpart C only to add regulatory options. discharge to POTWs in the proposal. EPA did not requirements for indirect dischargers receive data since proposal to contradict this where there currently are none. Further, 1. PSES finding. 5 Existing effluent limitations guidelines and also consistent with the proposal, the After considering all of the relevant pretreatment standards at 40 CFR part 437 apply to factors and technology options CWT facilities. The CWT industry handles 2 EIA reported this data as ‘‘tight oil’’ production discussed in this preamble and in the wastewater and industrial process by-products from but stated that it includes production from both off-site. CWT facilities may receive a wide variety shale oil formations (e.g., Bakken, Eagle Ford) and TDD, as well as public comments, EPA of hazardous and non-hazardous industrial wastes tight oil formations (e.g., Austin Chalk). decided to establish PSES based on for treatment.

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transfer to a POTW, the technology basis practice and EPA therefore estimates than the current industry practice and for meeting a zero discharge that there will be no incremental thus would potentially increase the requirement is widely available. While pollutant reductions. Accordingly, discharge of such pollutants to POTWs. EPA bases pretreatment standards and because industry is already meeting this EPA reasonably concluded that—as associated discharge limits on a requirement, no facilities will incur compared to a less stringent non-zero technology basis, the agency does not incremental costs for compliance with technology basis in Option 2—a require facilities to employ any specific the promulgated PSES and, therefore, standard based on available zero technology; rather, facilities may the promulgated PSES is economically discharge options reflects the ‘‘best’’ comply with alternative technologies as achievable. For the same reasons, the available technology within the long as they meet the prescribed limits. final PSES will result in no incremental meaning of Section 304(b) of the Clean Some commenters asserted that UIC non-water quality environmental Water Act. Moreover, unlike Option 2, wells may not be available in the future impacts. Finally, because the final rule a zero discharge technology option is in all geographic locations, but provided represents current industry practice, consistent with the CWA goal of no data to support their assertion. EPA EPA requires that the PSES based on eliminating the discharge of pollutants does not have any data to demonstrate zero discharge of wastewater pollutants into navigable waters (CWA sections that UIC capacity nationwide will be to POTWs be effective as of the effective 101(a)(1); 301(b)(2)(A) and 306(a)(1)). expended and that this current date of this rule, 60 days after Third, EPA disagrees with the management option will not be publication of this rule in the Federal commenters’ suggestion that an option available in the future (See Chapter D of Register. allowing for the discharge to POTWs is the TDD). Further, data suggest that, EPA did not establish PSES based on necessary as an ‘‘escape valve’’ in case where UIC wells are currently available, Option 2, under which EPA would of limited future availability of UIC this availability will likely continue in establish non-zero numerical disposal options. As explained the future (see Chapter D of the TDD). pretreatment standards for discharges of previously, UIC disposal capacity is Moreover, the technology basis for the wastewater pollutants from UOG currently widely available, and EPA final pretreatment standards is not extraction facilities. Such an option does not have data to suggest that this limited to UIC disposal. EPA identified could be similar to the one adopted in capacity will be limited in the future. two other approaches that also meet the Pennsylvania in 2010 that requires Moreover, approaches to achieve zero zero discharge requirement: Reuse/ pretreatment of oil and gas wastewaters discharge are not limited to UIC wells, recycle of the wastewater for re- before discharge to a POTW to meet a and EPA has no data to suggest that fracturing other wells, or transfer of the maximum TDS concentration of 500 other zero discharge options, such as wastewater to a CWT facility. In recent mg/L as well as specific numerical reuse/recycle of wastewater for re- years, industry has greatly expanded its concentrations for other pollutants (see fracturing or sending wastewater to knowledge about the ability to reuse/ Chapter A of the TDD). Some CWT facilities, will be limited in the recycle UOG flowback and long-term commenters suggested this approach future. Without any such data, there is produced water (the major contributors would provide an ‘‘escape-valve’’ for the no basis for EPA to conclude that an to UOG extraction wastewater by future in the event that UIC disposal ‘‘escape valve’’ allowing for discharge to volume) in fracturing another well. well capacity is exhausted. Others have POTWs is needed to address concerns Consequently, as the UOG industry suggested this would allow the water to about limited future availability of zero continues to grow and new wells are be available for re-use (other than in discharge technology options. being fractured, the need for UIC fracturing another well) if technologies Fourth, although EPA identified capacity for UOG extraction wastewater become available to pre-treat it to technologies that currently exist to treat may decrease, even in geographic remove dissolved pollutants in a cost dissolved pollutants in UOG extraction locations with an abundance of UIC effective manner. wastewater, these TDS-removal capacity, due to the increased Although EPA identified technologies are also likely more costly, availability of reuse/recycle. In addition, technologies 6 that currently exist to as demonstrated by information in the EPA’s record demonstrates that in areas treat dissolved pollutants in UOG record on estimated costs of managing of the country where UIC wells and/or extraction wastewater that could be wastewater under various approaches, opportunities for reuse in fracturing used to set a non-zero numeric relative to the suite of technologies that another well are limited, UOG discharge limit, EPA did not select this form the zero discharge technology basis extraction facilities transfer their option for the following reasons. First, for the final rule. See DCN SGE01186, wastewater to a CWT facility (see the existing requirements for direct SGE00139, SGE00070, SGE00350, Chapter D of the TDD). Some discharges of UOG extraction SGE00279, SGE01064, SGE00283, commenters assert that the option to wastewater in the Onshore Subcategory SGE00300, SGE00625, SGE00635, transfer UOG wastewater to CWT require zero discharge of pollutants. As SGE00280, SGE00245, SGE00279, facilities may be limited in the future explained previously, EPA generally SGE00276, SGE00275. because EPA may revise ELGs for this establishes requirements for direct and With respect to the comments industry. While EPA is conducting a indirect discharges so that the suggesting that EPA establish a non-zero study of CWT facilities that accept oil wastewater receives comparable levels numerical treatment standard in order and gas wastewater to determine if of pollutant removals prior to discharge to allow for (non-fracturing) reuse/ revision to the CWT regulations may be to waters of the U.S. recycle of the wastewater, data collected appropriate, EPA is not evaluating any Second, as detailed previously, UOG for this rulemaking demonstrate that the approaches that would directly restrict facilities in this subcategory are current technologies are capable of their availability to accept such currently meeting the zero discharge reducing TDS (and other dissolved wastewaters. requirement. Thus, any option that pollutants) well below 500 mg/L (see While the technology basis is best would allow for a discharge of UOG DCN SGE01186). To the extent that performing in that it achieves zero pollutants above the current zero these technologies or others are discharge of pollutants in UOG discharge level would be less stringent developed in the future to reduce extraction wastewater to POTWs, the pollutants in UOG extraction requirement reflects current industry 6 See DCN SGE01186. wastewater to enable them to be reused/

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recycled for purposes other than whether to accept transfers of drivers behind these actions taken by fracturing another well, these pre- wastewater on a case-by-case basis. It is Pennsylvania was that some waters treated wastewaters can be used directly beneficial to the states as a practical were impaired by TDS. (DCN for the other applications rather than matter to establish federal regulations SGE00187). To avoid future scenarios going to a POTW. that mandate this existing practice, in where POTWs receive UOG extraction In addition to the PSES option of zero order to avoid the burden for each state wastewater, it is reasonable to codify the discharge of wastewater pollutants, EPA to potentially repeat the effort of zero discharge practice already adopted also considered a ‘‘no rule’’ option, promulgating state-level regulations. by the industry that EPA has found to based on the discussion previously that EPA has discussed this rule with several be ‘‘best’’ in terms of pollutant no UOG facilities are currently states that have indicated that a federal removals, as well as both transferring wastewater to POTWs, and pretreatment standard would reduce technologically available and given available alternative management their administrative burden (DCN economically achievable. options such as disposal in UIC wells SGE00762; DCN SGE00743). and reuse/recycling. Third, EPA also considered the future 2. PSNS EPA did not select a ‘‘no rule’’ option burden that continued lack of After considering all of the relevant for several reasons. First, there is no pretreatment standards can impose on factors and technology options national regulation that prevents or POTWs. The UOG extraction industry is discussed in this preamble and in the requires pretreatment of such predicted to continue to grow in the TDD, as well as public comments, as is discharges—and, as mentioned future, resulting in the installation, the case with PSES, EPA decided to previously, EPA is not aware of any fracturing, and possible re-fracturing of establish PSNS based on the POTWs that are designed to treat hundreds of thousands of wells. Well technologies described in Option 1. For dissolved pollutants common in UOG operators will continue to generate UOG PSNS, the final rule establishes a zero extraction wastewater. Thus, as extraction wastewater and could request discharge standard on all pollutants in explained previously, some pollutants that local POTWs accept their UOG wastewater. of concern in UOG extraction wastewater for discharge. In the absence As previously noted, under section wastewater will not be physically, of federal pretreatment standards, 307(c) of the CWA, new sources of chemically, or biologically reduced by POTWs can legally accept UOG pollutants into POTWs must comply the treatment processes typically used at extraction wastewater to the extent that with standards that reflect the greatest POTWs, and these pollutants, if sent to such wastewater transfers are in degree of effluent reduction achievable POTWs, are expected to be discharged compliance with state and local through application of the best available from the POTW into receiving waters. In requirements and that resulting demonstrated control technologies. addition, these pollutants can cause discharges comply with their permits. Congress envisioned that new treatment operational problems for the POTW’s Evaluating each potential customer systems could meet tighter controls than biological treatment processes and alter (industrial user) and developing a existing sources because of the the POTW’s ability to adequately determination for each new UOG opportunity to incorporate the most remove BOD, TSS, and other pollutants extraction wastewater source on a case- efficient processes and treatment for which it is regulated. For some UOG by-case basis could be burdensome for systems into the facility design. The pollutants, such as radionuclides, the POTWs. In addition, where a POTW technologies used to control pollutants data indicate POTWs will remove some determines it can accept this at existing sources, disposal in UIC portion while discharging the remainder wastewater, complying with applicable wells, wastewater reuse/recycling to (DCN SGE01028; DCN SGE01185). In reporting requirements could be a fracture another well, and/or these cases, some portion of the significant burden to some POTWs. EPA management at CWT facilities—are fully radionuclides will partition to the concluded that a national-level available to new sources for the same POTW biosolids, which can cause the determination that UOG extraction reasons specified earlier for existing POTW to incur increased costs to wastewater contains pollutant sources. They achieve the greatest change its selected method of biosolids concentrations that could pass through degree of effluent reduction available: management (DCN SGE00615). See POTWs, and establishment of zero discharge of pollutants in UOG Chapter D of the TDD. This means that, categorical pretreatment standards, will extraction wastewater. Furthermore, absent a pretreatment standard, avoid burdening individual EPA has not identified any technologies constituents of such wastewater could pretreatment Control Authorities (e.g. that are demonstrated to be available for be discharged to receiving waters or POTWs) with evaluating each new sources that are different from interfere with POTW operations when individual request. While EPA does not those identified for existing sources. other available options such as reuse/ have the information to quantify the EPA determined that the final PSNS recycle and proper disposal in a Class reductions in administrative burden that present no barrier to entry into the II UIC well better protect water quality will likely result from the final rule, market for new sources. EPA has no and aquatic communities and help states generally support EPA’s position data in the record indicating that new further the zero discharge goal of the that such reductions will be realized sources would manage their wastewater CWA. CWA section 101(a)(1). (DCN SGE00762; DCN SGE00743). any differently than existing sources or Second, as detailed in the TDD, few Fourth, history demonstrates that, that the management options that are states have regulations or policies that absent controls preventing the transfer available for existing sources would not prevent discharges of pollutants in UOG of or requiring pretreatment of such be available for new sources. Indeed, extraction wastewater to POTWs or that wastewater, POTWs could and did EPA’s record demonstrates that as new mandate pre-treatment prior to accept it. This occurred in Pennsylvania UOG facilities have come into existence, discharge to a POTW. In the absence of (see Chapter A and Chapter D of the they are relying on the same current such regulations or policies, resource- TDD), where POTWs were used to industry best practices as existing constrained control authorities and/or manage UOG extraction wastewater facilities, using zero discharge POTWs that receive requests to accept until the state took action. This action technology options to avoid sending UOG extraction wastewater would be in included promulgating new regulations wastewater to POTWs. See TDD Table the position of having to evaluate requiring pretreatment. Among the D–1 and DCN SGE01179.A03.

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Accordingly, EPA found that there are available characterization data for UOG of water (median flow rates range from no overall incremental impacts from the extraction wastewaters. 200–800 gallons per day) and continue final standards on new sources, as is the In addition, before establishing PSES/ producing wastewater throughout the case for existing sources, since the PSNS for a pollutant, EPA examines life of the well (see TDD Chapter C.2). incremental costs faced by new sources whether the pollutant ‘‘passes through’’ In general, evidence of environmental generally will be the same as those faced a POTW to waters of the U.S. or impacts to surface waters from by existing sources. EPA projects no interferes with the POTW operation or discharges of UOG extraction incremental non-water quality sludge disposal practices. In wastewater is sparsely documented—as environmental impacts. Therefore, EPA determining whether a pollutant passes direct discharges from onshore oil and established PSNS that are the same as through POTWs for these purposes,7 gas extraction have been prohibited the final PSES for this final rule. where EPA establishes non-zero under the existing regulations since EPA rejected other options for PSNS pretreatment standards, EPA generally 1979; and based on current industry for the same reasons that the Agency compares the percentage of a pollutant best practice, there have been few rejected other options for PSES. And, as removed by well-operated POTWs indirect discharges of such wastewater with the final PSES, EPA determined performing to the to POTWs. Some of the environmental that the final PSNS prevent pass percentage removed by the BAT/NSPS impacts documented to date, such as through of pollutants from POTWs into technology basis. A pollutant is increased DBP formation in downstream receiving streams and also help control determined to pass through POTWs drinking water treatment plants, contamination of POTW sludge. when the median percentage removed resulted from wastewater pollutants that nationwide by well-operated POTWs is passed untreated through POTWs in 3. Pollutants Selected for Regulation less than the median percentage Pennsylvania (see Chapter D of the Pass-Through Analysis removed by the BAT/NSPS technology TDD). EPA identifies all pollutants in UOG basis. Pretreatment standards are A. Pollutants extraction wastewater as pollutants of established for those pollutants concern and similarly determined all regulated under BAT/NSPS that pass As described in Section XII.D of the pollutants pass through. As a result, all through POTWs. In this way, EPA is proposed rule (80 FR 18569, April 7, pollutants in UOG extraction able to ensure that the standards for 2015), high concentrations of TDS are wastewater are directly regulated by the indirect dischargers are equivalent to common in UOG extraction wastewater. final pretreatment standards. direct dischargers and that the treatment Inorganic constituents leaching from CWA section 301(b) directs EPA to capability and performance of POTWs is geologic formations, such as sodium, eliminate the discharge of all pollutants recognized and taken into account in potassium, bromide, calcium, fluoride, where it is technologically available and regulating the pollutants from indirect nitrate, phosphate, chloride, sulfate, and economically achievable to do so (after dischargers. magnesium, represent most of the TDS a consideration of the factors specified For those wastestreams regulated with in UOG extraction wastewater. in section 304(b) of the Act). The first a zero discharge limitation or standard, Produced water can also include step in such an analysis is typically to EPA typically sets the percentage barium, radium, and strontium. Based identify Pollutants of Concern (POCs)— removed by the technology basis at 100 on available data, TDS cations or the pollutants to be potentially percent for all pollutants. Because a (positively charged ions) in UOG regulated by the effluent guideline. For POTW would not be able to achieve 100 extraction wastewater are generally some industries and wastestreams, not percent removal of wastewater dominated by sodium and calcium, and every pollutant in the wastestream may pollutants, the percent removal at a the anions (negatively charged ions) are be a pollutant of concern. For example, POTW would be less than that of the dominated by chloride (DCN SGE00284; not every pollutant may be present in an candidate zero-discharge technology. See also Chapter C of the TDD). TDS amount or frequency that EPA can For this final rule, using this approach, concentrations vary among the UOG demonstrate, using available data, is EPA determined that all pollutants pass formations and can exceed 350,000 mg/ treatable by the candidate technology. through and that it is appropriate to set L. For comparison, sea water contains Where this is the case, EPA may choose PSES/PSNS for all pollutants to prevent approximately 35,000 mg/L TDS. to establish numerical limitations for pass through. B. Impacts From the Discharge of only a subset of the pollutants present VII. Environmental Impacts Pollutants Found in UOG Extraction in the wastestream. For other industries Wastewater and wastestreams, the candidate UOG production generates significant technology may be capable of volumes of wastewater that need to be As explained in Chapter D of the controlling all pollutants present in the managed. As described in Section TDD, POTWs are typically designed to wastestream regardless of amount or XII.C.2 of the proposed rule (80 FR treat organic waste, total suspended frequency. Where this is the case, EPA 18569, April 7, 2015), unconventional solids, and constituents responsible for considers all pollutants in the wells can produce flowback volumes biochemical oxygen demand, not to wastestream to be POCs. This is the case ranging between 210,000 and 2,100,000 treat TDS. When transfers of UOG gallons during the initial flowback in this final rule because, as described 8 extraction wastewater to POTWs were previously, the technology bases for the process. During the production phase, occurring in Pennsylvania, these rule: underground injection of UOG wells typically produce smaller volumes POTWs, lacking adequate TDS removal extraction wastewater, recycling and processes, diluted UOG extraction 7 As explained in Section IV, the definition of reuse of that wastewater, or pass through for general pretreatment standards wastewaters with other sewage flows management by CWT facilities; results appropriately differs from the definition in and discharged TDS-laden effluent into in zero discharge of all pollutants from establishing national categorical pretreatment local streams and rivers. POTWs not UOG facilities to POTWs. Therefore, standards as they serve different objectives. sufficiently treating TDS in UOG 8 As explained in Chapter B of the TDD the length under this rule, all pollutants in UOG of the flowback process is variable. Literature extraction wastewater were a suspected extraction wastewater are POCs. Chapter generally reports it as 30 days or less (DCN source of elevated TDS levels in the C of the TDD provides a summary of SGE00532). Monongahela River in 2009 (DCN

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SGE00525). Also see Chapter D of the found that water with less than 300 mg/ solids from estimated historic levels of TDD for additional examples. L TDS is considered excellent, and 270 to 1170 mg/L, as species that are In addition to UOG wastewater water with TDS above 1,100 mg/L is less salt tolerant such as coontail pollutants passing through POTWs, unacceptable (DCN SGE00939). The (Ceratophyllus demersum) and cattail other industrial discharges of World Health Organization dropped its (Typha sp.) were nearly eliminated. A inadequately treated UOG extraction health-based recommendations for TDS related study found that lakes with wastewater have also been associated in 1993, instead retaining 1,000 mg/L as higher salinity exhibit lower aquatic with in-stream impacts. One study of a secondary standard for taste (DCN biodiversity, with species distribution discharges from a CWT facility in SGE00947). also affected by ion composition (DCN western Pennsylvania that treats UOG Bromide in UOG wastewater SGE00940). extraction wastewater examined the discharges can adversely affect surface Aquatic toxicity is dependent on the water quality and isotopic compositions waters used as drinking water supplies. ionic composition of the mixture. Salts, of discharged effluents, surface waters, Recent studies of industrial discharges specifically sodium and chloride, are and stream sediments (DCN that contain bromide upstream of the majority (i.e., much greater than 50 SGE00629).9 The facility’s treatment drinking water utilities’ intakes percent) of TDS in UOG produced water process includes settling, precipitation, demonstrate that with bromides present (DCN SGE00284). Typical chloride and fine screening, but does not remove in drinking water source waters at concentrations in UOG wastewater have TDS (DCN SGE00525). The study found increased levels, carcinogenic been measured at concentrations up to that the discharge of the effluent from disinfection by-products (brominated 130,000 mg/L (see TDD Table C11). the CWT facility increased downstream DBPs, in particular trihalomethanes Macroinvertebrates, such as fresh water concentrations of chloride and bromide (THMs)) can form at the drinking water shrimp and aquatic insects that are a above background levels. The chloride utility (DCN SGE01329). DBPs have primary prey of many fish species, have concentrations 1.7 kilometers been shown to have both adverse open circulatory systems that are downstream of the treatment facility human health and ecological affects. especially sensitive to pollutants like were two to ten times higher than Studies also demonstrate that bromide chloride. Based on laboratory toxicity chloride concentrations found in similar in UOG wastewaters treated at POTWs data from EPA’s 1988 chloride criteria reference streams in western can lead to the formation of DBPs document and more recent non-EPA Pennsylvania. Radium 226 levels in within the POTW. EPA reviewed a studies, chloride acute effect stream sediments at the point of study of a POTW accepting UOG concentrations for invertebrates ranged discharge were approximately 200 times wastewater that unintentionally created from 953 mg/L to 13,691 mg/L. Chloride greater than upstream and background DBPs due to insufficient removal of chronic effect concentrations for sediments. bromide and other UOG wastewater invertebrates ranged from 489 mg/L to constituents (DCN SGE00535; DCN 556 mg/L. In addition to the laboratory C. Impact on Surface Water Designated SGE00587). The study found that UOG data, EPA also reviewed data from a Uses extraction wastewaters contain various 2009 Pennsylvania Department of UOG extraction wastewater TDS inorganic and organic DBP precursors Environmental Protection violation concentrations are typically high that can react with disinfectants used by report documenting a fish kill attributed enough, that if discharged untreated to POTWs to promote the formation of to a spill of diluted produced water in surface water, affect adversely a number DBPs, or alter speciation of DBPs, Hopewell Township, PA. The of designated uses of the surface water, particularly brominated-DBPs, which concentration of TDS at the location of including drinking water source, aquatic are suspected to be among the more the fish kill was as high as 7,000 mg/L. life support, livestock watering, toxic DBPs (DCN SGE00535; DCN While not related to UOG extraction irrigation, and industrial use. SGE00985). See Chapter D of the TDD wastewater, negative impacts of high 1. Drinking Water Uses for further discussion of DBP formation TDS, including fish kills, were associated with UOG extraction documented during 2009 at Dunkard Available data indicate that the wastewaters. Creek located in Monongalia County, concentration of TDS in UOG extraction Pennsylvania. (DCN SGE00001 and DCN wastewaters can often significantly 2. Aquatic Life Support Uses SGE00001.A01) exceed recommended drinking water TDS and its accompanying salinity concentrations. Because TDS play a primary role in the distribution 3. Livestock Watering Uses concentrations in drinking water source and abundance of aquatic animal and POTW discharges to surface waters waters are typically well below the plant communities. High levels of TDS containing high concentrations of TDS recommended levels for drinking, few can impact aquatic biota through can impact downstream uses for drinking water treatment facilities have increases in salinity, loss of osmotic livestock watering. High TDS technologies to remove TDS. Two balance in tissues, and toxicity of concentrations in water sources for published standards for TDS in drinking individual ions. Increases in salinity livestock watering can adversely affect water include the U.S. Public Health have been shown to cause shifts in animal health by disrupting cellular Service recommendation and EPA’s biotic communities, limit biodiversity, osmotic and metabolic processes (DCN secondary maximum contaminant level exclude less-tolerant species and cause SGE01053). Domestic livestock, such as recommendation that TDS in drinking acute or chronic effects at specific life cattle, sheep, goats, horses, and pigs water should not exceed 500 mg/L. High stages (DCN SGE00946). A detailed have varying degrees of sensitivity to concentrations of TDS in drinking water study of plant communities associated TDS in drinking water. primarily degrade its taste rather than with irrigation drains reported pose a human health risk. Taste surveys substantial changes in marsh 4. Irrigation Uses communities, in part because of an If UOG extraction wastewater 9 Discharges from CWT facilities are subject to increase in dissolved solids (DCN discharges to POTWs increase TDS ELGs in 40 CFR part 437. However, the effect of discharges of treated oil and gas wastewaters from SGE00941). Observations over time concentrations in receiving streams, CWT facilities that lack treatment for TDS is indicate a shift in plant community downstream irrigation uses of that similarly representative of POTWs. coinciding with increases in dissolved surface water can be negatively affected.

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Elevated TDS levels can limit the (c) are self-implementing. See CWA and Natural Gas Liquid Extraction by usefulness of water for irrigation. section 307(d). The duty to comply with NAICS code 211111 and 211112 with Excessive salts affect crop yield in the such standards is independent of any fewer than 500 employees (based on short term, and the soil structure in the state or a municipal control authority Small Business Administration size long term. Primary direct impacts of permit or control mechanism containing standards). The small entities that are high salinity water on plant crops the standards and associated reporting subject to the requirements of this final include physiological drought, requirements. rule are small businesses that engage in increased osmotic potential of soil, UOG extraction as defined in Section V, specific ion toxicity, leaf burn, and A. Implementation Deadline of this preamble. No small businesses nutrient uptake interferences (DCN Because the requirements of the final will experience a significant economic SGE00938). In general, for various rule are based on current practice, EPA impact because the final rulemaking classes of crops the salinity tolerance determined that the PSES/PSNS codifies current industry practice and decreases in the following order: forage standards apply on the effective date of does not impose any new requirement crops, field crops, vegetables, fruits. the final rule, August 29, 2016. that is not already being met by the In addition to short-term impacts to industry. I have therefore concluded B. Upset and Bypass Provisions crop plants, irrigating with high TDS that this action will have no net water can result in gradual For discussion of upset and bypass regulatory burden for all directly accumulation of salts or sodium in soil provisions, see the proposed rule (80 FR regulated small entities. layers and eventual decrease in soil 18569, April 7, 2015). productivity. The susceptibility of soils D. Unfunded Mandates Reform Act C. Variances and Modifications to degradation is dependent on the soil This action does not contain any type and structure. Sandy soils are less For discussion of variances and unfunded mandate as described in likely than finely textured soils to modifications, see the proposed rule (80 UMRA, 2 U.S.C. 1531–1538, and does accumulate salts or sodium. Soils with FR 18569, April 7, 2015). not significantly or uniquely affect small a high water table or poor drainage are governments. The action imposes no IX. Statutory and Executive Order more susceptible to salt or sodium incremental enforceable duty on any Reviews accumulation. The most common state, local or tribal governments or the method of estimating the suitability of a Additional information about these private sector. soil for crop production is through statutes and Executive Orders can be E. Executive Order 13132: Federalism calculation of its sodicity as estimated found at https://www.epa.gov/laws- by the soil’s sodium absorption ratio regulations/laws-and-executive-orders. This action does not have federalism (SAR). The impact of irrigation water implications. It does not alter the basic A. Executive Order 12866: Regulatory state-federal scheme established in the salinity on crop productivity is a Planning and Review and Executive function of both the SAR value and the CWA under which EPA authorizes Order 13563: Improving Regulation and states to carry out the NPDES permit electrical conductivity. The actual field- Regulatory Review observed impacts are very site-specific program. It will not have substantial depending on the soil and crop system This action is not a significant direct effect on the states, on the (DCN SGE00938). regulatory action and was therefore not relationship between the national submitted to the Office of Management government and the states, or on the 5. Industrial Uses and Budget (OMB) for review. distribution of power and POTW discharges to surface waters responsibilities among the various B. Paperwork Reduction Act are often upstream of industrial levels of government. Although this facilities that withdraw surface waters This action does not impose an order does not apply to this action, as for various cooling and process uses. information collection burden under the explained in Section VI, EPA High concentration of TDS can provisions of the Paperwork Reduction coordinated closely with states through adversely affect industrial applications Act. This final rule codifies current a workgroup, as well as outreach efforts requiring the use of water in cooling industry practice and does not impose to pretreatment coordinators and tower operations, boiler feed water, food any additional reporting requirements. pretreatment authorities. processing, and electronics C. Regulatory Flexibility Act F. Executive Order 13175: Consultation manufacturing. Concentrations of TDS and Coordination With Indian Tribal above 500 mg/L result in excessive I certify that this action will not have Governments scaling in water pipes, water heaters, a significant economic impact on a boilers and household appliances (DCN substantial number of small entities This action does not have tribal SGE00174). Depending on the industry, under the Regulatory Flexibility Act. In implications as specified in Executive TDS in intake water can interfere with making this determination, the impact Order 13175. It will not have substantial chemical processes within the plant. of concern is any significant adverse direct effects on tribal governments, on Some industries requiring ultrapure economic impact on small entities. An the relationship between the Federal water, such as semi-conductor agency may certify that a rule will not government and Indian tribes, or on the manufacturing facilities, are particularly have a significant economic impact on distribution of power and sensitive to high TDS levels due to the a substantial number of small entities if responsibilities between the Federal treatment cost for the removal of TDS. the rule relieves regulatory burden, has government and Indian tribes. The final no net burden or otherwise has a rule contains no Federal mandates for VIII. Regulatory Implementation of the positive economic effect on the small tribal governments and does not impose Standard entities subject to the rule. any enforceable duties on tribal The requirements in this rule apply to For purposes of assessing the impacts governments. Thus, Executive Order discharges from UOG facilities through of the final rule on small entities, small 13175 does not apply to this action. local pretreatment programs under CWA entity is defined as: A small business Although Executive Order 13175 does section 307. Pretreatment standards that is primarily engaged in Crude not apply to this action, the EPA promulgated under section 307(b) and Petroleum and Natural Gas Extraction coordinated with tribal officials early in

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the process of developing this rule to 18579; April 7, 2015) and received no condition the hole and to enable them to have meaningful and comments. counterbalance formation pressure. timely input into its development. EPA K. Congressional Review Act (CRA) (iv) Produced sand means the slurried coordinated with federally recognized particles used in hydraulic fracturing, This action is subject to the CRA, and tribal governments in May and June of the accumulated formation sands, and 2014, sharing information about the the EPA will submit a rule report to scales particles generated during UOG pretreatment standards proposed each House of the Congress and to the production. Produced sand also rulemaking with the National Tribal Comptroller General of the United Caucus and the National Tribal Water States. This action is not a ‘‘major rule’’ includes desander discharge from the Council. EPA continued the outreach as defined by 5 U.S.C. 804(2). produced water waste stream, and blowdown of the water phase from the effort by collecting data about UOG List of Subjects in 40 CFR Part 435 operations on tribal reservations, UOG produced water treating system. operators that are affiliated with Indian Environmental protection, (v) Produced water means the fluid tribes, and POTWs owned or operated Pretreatment, Waste treatment and brought up from the hydrocarbon- by tribes that can accept industrial disposal, Water pollution control, bearing strata during the extraction of wastewaters (see DCN SGE00785). Unconventional oil and gas extraction. oil and gas, and includes, where Based on this information, there are no Dated: June 13, 2016. present, formation water, injection tribes operating UOG wells that Gina McCarthy, water, and any chemicals added discharge wastewater to POTWs nor are Administrator. downhole or during the oil/water there any tribes that own or operate separation process. POTWs that accept industrial Therefore, 40 CFR part 435 is wastewater from UOG facilities; amended as follows: (b) PSES for Wastewater from therefore, this final rule will not impose Conventional Oil and Gas Extraction. PART 435—OIL AND GAS any costs on tribes. [Reserved] EXTRACTION POINT SOURCE G. Executive Order 13045: Protection of CATEGORY ■ 3. Add § 435.34 to subpart C to read Children From Environmental Health as follows: ■ 1. The authority citation for part 435 Risks and Safety Risks § 435.34 Pretreatment standards for new is revised to read as follows: This action is not subject to Executive sources (PSNS). Order 13045 because it is not Authority: 33 U.S.C. 1251, 1311, 1314, 1316, 1317, 1318, 1342 and 1361. (a) PSNS for wastewater from economically significant as defined in unconventional oil and gas extraction. Executive Order 12866, and because the Subpart C—Onshore Subcategory Except as provided in 40 CFR 403.7 and EPA does not believe the environmental 403.13, any new source with discharges health or safety risks addressed by this ■ 2. Add § 435.33 to subpart C to read subject to this section must achieve the action present a disproportionate risk to as follows: following pretreatment standards for children. This action codifies current industry practice; therefore there is no § 435.33 Pretreatment standards for new sources (PSNS). change in environmental health or existing sources (PSES). (1) There shall be no discharge of safety risks. (a) PSES for wastewater from wastewater pollutants associated with unconventional oil and gas extraction. production, field exploration, drilling, H. Executive Order 13211: Energy Except as provided in 40 CFR 403.7 and well completion, or well treatment for Effects 403.13, any existing source subject to unconventional oil and gas extraction This action is not subject to Executive this section, must achieve the following (including, but not limited to, drilling Order 13211, because it is not a pretreatment standards for existing muds, drill cuttings, produced sand, significant regulatory action under sources (PSES). produced water) into publicly owned Executive Order 12866. (1) There shall be no discharge of treatment works. wastewater pollutants associated with (2) For the purposes of this section, I. National Technology Transfer and production, field exploration, drilling, Advancement Act well completion, or well treatment for the definitions of unconventional oil and gas, drill cuttings, drilling muds, This final rulemaking does not unconventional oil and gas extraction involve technical standards. (including, but not limited to, drilling produced sand, and produced water are muds, drill cuttings, produced sand, as specified in § 435.33(b)(2)(i) through J. Executive Order 12898: Federal produced water) into publicly owned (v). Actions To Address Environmental treatment works. (b) PSNS for Wastewater from Justice in Minority Populations and (2) For the purposes of this section, Conventional Oil and Gas Extraction. Low-Income Populations (i) Unconventional oil and gas means [Reserved] The final rule will neither increase crude oil and natural gas produced by ■ 4. Add subpart H to read as follows: nor decrease environmental protection a well drilled into a shale and/or tight (as described in Section VI) as it codifies formation (including, but not limited to, Subpart H—Coalbed Methane shale gas, shale oil, tight gas, tight oil). current industry practice; therefore, EPA Subcategory [Reserved] determined that the human health or (ii) Drill cuttings means the particles environmental risk addressed by this generated by drilling into subsurface [FR Doc. 2016–14901 Filed 6–27–16; 8:45 am] action will not have potential geologic formations and carried out BILLING CODE 6560–50–P disproportionately high and adverse from the wellbore with the drilling human health or environmental effects fluid. on minority, low-income or indigenous (iii) Drilling mud means the populations. EPA requested comment circulating fluid (mud) used in the on this E.O. in the proposal (80 FR rotary drilling of wells to clean and

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