[Federal Register Volume 81, Number 124 (Tuesday, June 28, 2016)]
[Rules and Regulations]
[Pages 41845-41857]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-14901]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 435

[EPA-HQ-OW-2014-0598; FRL-9947-87-OW]
RIN 2040-AF35


Effluent Limitations Guidelines and Standards for the Oil and Gas 
Extraction Point Source Category

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is publishing a 
final Clean Water Act (CWA) regulation that protects human health, the 
environment and the operational integrity of publicly owned treatment 
works (POTWs) by establishing pretreatment standards that prevent the 
discharge of pollutants in wastewater from onshore unconventional oil 
and gas (UOG) extraction facilities to POTWs. UOG extraction wastewater 
can be generated in large quantities and contains constituents that are 
potentially harmful to human health and the environment. Certain UOG 
extraction wastewater constituents are not typical of POTW influent 
wastewater and can be discharged, untreated, from the POTW to the 
receiving stream; can disrupt the operation of the POTW (e.g., by 
inhibiting biological treatment); can accumulate in biosolids (sewage 
sludge), limiting their beneficial use; and can facilitate the 
formation of harmful disinfection by-products (DBPs). Based on the 
information collected by EPA, the requirements of this final rule 
reflect current industry practices for onshore unconventional oil and 
gas extraction facilities. Therefore, EPA does not project that the 
final rule will impose any costs or lead to pollutant removals, but 
will ensure that current industry best practice is maintained over 
time.

DATES: The final rule is effective on August 29, 2016. In accordance 
with 40 CFR part 23, this regulation shall be considered issued for 
purposes of judicial review at 1 p.m. Eastern time on July 12, 2016. 
Under section 509(b)(1) of the CWA, judicial review of this regulation 
can be had only by filing a petition for review in the U.S. Court of 
Appeals within 120 days after the regulation is considered issued for 
purposes of judicial review. Under section 509(b)(2), the requirements 
in this regulation may not be challenged later in civil or criminal 
proceedings

[[Page 41846]]

brought by EPA to enforce these requirements.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-HQ-OW-2014-0598. All documents in the docket are 
listed on the http://www.regulations.gov Web site. Although listed in 
the index, some information is not publicly available, e.g., 
confidential business information (CBI) or other information whose 
disclosure is restricted by statute. Certain other material, such as 
copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available electronically through http://www.regulations.gov. A detailed record index, organized by subject, is 
available on EPA's Web site at https://www.epa.gov/eg/unconventional-oil-and-gas-extraction-effluent-guidelines.

FOR FURTHER INFORMATION CONTACT: For more information, see EPA's Web 
site: https://www.epa.gov/eg/unconventional-oil-and-gas-extraction-effluent-guidelines. For technical information, contact Karen Milam, 
Engineering and Analysis Division, Office of Science and Technology 
(4305T), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., 
Washington, DC 20460; telephone number: 202-566-1915; email address: 
[email protected].

SUPPLEMENTARY INFORMATION: 

Organization of This Preamble

Table of Contents

I. Regulated Entities and Supporting Documentation
    A. Regulated Entities
    B. Supporting Documentation
II. Legal Authority
III. Purpose and Summary of Final Rule
    A. Purpose and Summary of the Final Rule
    B. Summary of Costs and Benefits
IV. Background
    A. Clean Water Act
    B. Effluent Limitations Guidelines and Standards Program
1. Best Practicable Control Technology Currently Available (BPT)
2. Best Conventional Pollutant Control Technology (BCT)
3. Best Available Technology Economically Achievable (BAT)
4. Best Available Demonstrated Control Technology (BADCT)/New Source 
Performance Standards (NSPS)
5. Pretreatment Standards for Existing Sources (PSES) and 
Pretreatment Standards for New Sources (PSNS)
C. Subcategorization
    D. Oil and Gas Extraction Effluent Guidelines Rulemaking History
    1. Subpart C: Onshore
    2. Subpart E: Agricultural and Wildlife Use
    E. State Pretreatment Requirements That Apply to UOG Extraction 
Wastewater
    F. Related Federal Requirements in the Safe Drinking Water Act
V. Industry Profile
VI. Final Rule
    A. Scope/Applicability
    B. Option Selection
    1. PSES
    2. PSNS
    3. Pollutants Selected for Regulation Pass-Through Analysis
VII. Environmental Impacts
    A. Pollutants
    B. Impacts From the Discharge of Pollutants Found in UOG 
Extraction Wastewater
    C. Impact on Surface Water Designated Uses
    1. Drinking Water Uses
    2. Aquatic Life Support Uses
    3. Livestock Watering Uses
    4. Irrigation Uses
    5. Industrial Uses
VIII. Regulatory Implementation of the Standard
    A. Implementation Deadline
    B. Upset and Bypass Provisions
    C. Variances and Modifications
IX. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health Risks and Safety Risks
    H. Executive Order 13211: Energy Effects
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Congressional Review Act (CRA)

I. Regulated Entities and Supporting Documentation

A. Regulated Entities

    Entities potentially regulated by this final action include:

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                                                         North American
                                                            Industry
           Category              Examples of regulated   Classification
                                       entities          System (NAICS)
                                                              Code
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Industry......................  Crude Petroleum and               211111
                                 Natural Gas
                                 Extraction.
                                Natural Gas Liquid                211112
                                 Extraction.
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    This section is not intended to be exhaustive, but rather provides 
a guide for readers regarding entities likely to be regulated by this 
final action. Other types of entities that do not meet the above 
criteria could also be regulated. To determine whether your facility 
would be regulated by this final action, you should carefully examine 
the applicability criteria listed in 40 CFR 435.30 and the definitions 
in 40 CFR 435.33(b) of the final rule and detailed further in Section 
VI, of this preamble. If you still have questions regarding the 
applicability of this final action to a particular entity, consult the 
person listed for technical information in the preceding FOR FURTHER 
INFORMATION CONTACT section.

B. Supporting Documentation

    The final rule is supported by a number of documents including the 
Technical Development Document for the Effluent Limitations Guidelines 
and Standards for the Oil and Gas Extraction Point Source Category 
(TDD), Document No. EPA-820-R-16-003 (DCN SGE01188). This document is 
available in the public record for this final rule and on EPA's Web 
site at https://www.epa.gov/eg/unconventional-oil-and-gas-extraction-effluent-guidelines.

II. Legal Authority

    EPA finalizes this regulation under the authorities of sections 
101, 301, 304, 306, 307, 308, and 501 of the CWA, 33 U.S.C. 1251, 1311, 
1314, 1316, 1317, 1318, and 1361.

III. Purpose and Summary of Final Rule

A. Purpose and Summary of the Final Rule

    Responsible development of America's oil and gas resources offers 
important economic, energy security, and environmental benefits. EPA 
has been working with states and other

[[Page 41847]]

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

[[Page 41848]]

of POTWs. Generally, EPA designs nationally applicable pretreatment 
standards for categories of industry (categorical pretreatment 
standards) to ensure that wastewaters from direct and indirect 
industrial dischargers are subject to similar levels of treatment. EPA, 
in its discretion under section 304(g) of the Act, periodically 
evaluates indirect dischargers not subject to categorical pretreatment 
standards to identify potential candidates for new pretreatment 
standards. Until issuance of this final rule, EPA had not established 
nationally applicable pretreatment standards for the onshore oil and 
gas extraction point source subcategory.
    This final rule establishes technology-based categorical 
pretreatment standards under the CWA for discharges of pollutants into 
POTWs from existing and new onshore UOG extraction facilities in 
subpart C of 40 CFR part 435 (80 FR 18557, April 7, 2015). The rule 
will fill a gap in federal CWA regulations and address concerns 
regarding the level of treatment provided by POTWs for UOG wastewater, 
potential interference with treatment processes, and potential impacts 
on water quality and aquatic life impacts that could result from 
inadequate treatment. Consistent with existing BPT-based requirements 
for direct dischargers in this subcategory, this final rule establishes 
pretreatment standards for existing and new sources (PSES and PSNS, 
respectively) that require zero discharge of wastewater pollutants 
associated with onshore UOG extraction facilities to POTWs.
    This final rule does not include pretreatment standards for 
wastewater pollutants associated with conventional oil and gas 
extraction facilities or coalbed methane extraction facilities. EPA is 
reserving consideration of any such standards for a future rulemaking, 
if appropriate. See Section V1.A.

B. Summary of Costs and Benefits

    Because the data reviewed by EPA show that the UOG extraction 
industry is not currently managing wastewaters by sending them to 
POTWs, the final rule is not projected to affect current industry 
practice or to result in incremental compliance costs or monetized 
benefits. UOG extraction wastewater is typically managed through 
disposal via underground injection wells, reuse/recycle in subsequent 
fracturing jobs, or transfer to a centralized waste treatment (CWT) 
facility (see 80 FR 18570, April 7, 2015). EPA is promulgating this 
rule as a backstop measure because onshore unconventional oil and gas 
extraction facilities have discharged to POTWs in the past and because 
the potential remains that some facilities may consider discharging to 
POTWs in the future.

IV. Background

A. Clean Water Act

    Congress passed the CWA to ``restore and maintain the chemical, 
physical, and biological integrity of the Nation's waters.'' 33 U.S.C. 
1251(a). The Act establishes a comprehensive program for protecting our 
nation's waters. Among its core provisions, the CWA prohibits the 
discharge of pollutants from a point source to waters of the U.S., 
except as authorized under the Act. Under section 402 of the CWA, 
discharges may be authorized through a National Pollutant Discharge 
Elimination System (NPDES) permit. The CWA establishes a two-pronged 
approach for these permits, technology-based controls that establish 
the floor of performance for all dischargers, and water quality-based 
limits where the technology-based limits are insufficient for the 
discharge to meet applicable water quality standards. To serve as the 
basis for the technology-based controls, the CWA authorizes EPA to 
establish national technology-based effluent limitations guidelines and 
new source performance standards for discharges from different 
categories of point sources, such as industrial, commercial, and public 
sources, that discharge directly into waters of the U.S.
    Direct dischargers (those discharging directly to waters of the 
U.S.) must comply with effluent limitations in NPDES permits. 
Technology-based effluent limitations (TBELs) in NPDES permits for 
direct dischargers are derived from effluent limitations guidelines 
(CWA sections 301 and 304) and new source performance standards (CWA 
section 306) promulgated by EPA. Alternatively, TBELs may be 
established based on best professional judgment (BPJ) where EPA has not 
promulgated an applicable effluent guideline or new source performance 
standard (CWA section 402(a)(1)(B) and 40 CFR 125.3). The effluent 
guidelines and new source performance standards established by 
regulation for categories of industrial dischargers are based on the 
degree of control that can be achieved using various levels of 
pollution control technology, as specified in the Act. Additional 
limitations based on water quality standards are also required to be 
included in the permit where necessary to meet water quality standards. 
CWA section 301(b)(1)(C).
    EPA promulgates national effluent guidelines and new source 
performance standards for major industrial categories for three classes 
of pollutants: (1) Conventional pollutants (total suspended solids, oil 
and grease, biochemical oxygen demand (BOD5), fecal coliform, and pH), 
as outlined in CWA section 304(a)(4) and 40 CFR 401.16; (2) toxic 
pollutants (e.g., metals such as arsenic, mercury, selenium, and 
chromium; and organic pollutants such as benzene, benzo-a-pyrene, 
phenol, and naphthalene), as outlined in section 307(a) of the Act, 40 
CFR 401.15 and 40 CFR part 423, appendix A; and (3) nonconventional 
pollutants, which are those pollutants that are not categorized as 
conventional or toxic (e.g., ammonia-N, phosphorus, and TDS).
    Under section 307(b) of the CWA, there are general and specific 
prohibitions on the discharge to POTWs of pollutants in specified 
circumstances in order to prevent ``pass through'' or ``interference.'' 
Pass through occurs whenever the introduction of pollutants from a user 
will result in a discharge that causes or contributes to a violation of 
any requirement of the POTW permit. See 40 CFR 403.3(p). Interference 
means a discharge that, among other things, inhibits or disrupts the 
POTW or prevents biosolids use consistent with the POTW's chosen method 
of disposal. See 40 CFR 403.3(k). These general and specific 
prohibitions must be implemented through local limits established by 
POTWs in certain cases. See 40 CFR 403.5(c). POTWs with approved 
pretreatment programs must develop and enforce local limits to 
implement the general prohibitions on user discharges that pass through 
or interfere with the POTW and implement specific prohibitions in 40 
CFR 403.5(b). In the case of POTWs that are not required to develop a 
pretreatment program, the POTWs must develop local limits where there 
is interference or pass through and the limits are necessary to ensure 
compliance with the POTW's NPDES permit or biosolids use.
    The CWA also authorizes EPA to promulgate nationally applicable 
pretreatment standards that restrict pollutant discharges from 
facilities that discharge pollutants indirectly, by sending wastewater 
to POTWs, as outlined in sections 307(b) and (c) and 33 U.S.C. 1317(b) 
and (c). Specifically, the CWA authorizes EPA to establish pretreatment 
standards for those pollutants in wastewater from indirect dischargers 
that EPA determines are not susceptible to treatment by a POTW or which 
would interfere with POTW operations. CWA sections 307(b) and (c). 
Under section 301(b)(1)(A) and

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301(b)(2)(A) and the legislative history of the 1977 CWA amendments, 
pretreatment standards are technology-based and analogous to TBELs for 
direct dischargers for the removal of toxic pollutants. As explained in 
the statute and legislative history, the combination of pretreatment 
and treatment by the POTW is intended to achieve the level of treatment 
that would be required if the industrial source were making a direct 
discharge. Conf. Rep. No. 95-830, at 87 (1977), reprinted in U.S. 
Congress. Senate. Committee on Public Works (1978), A Legislative 
History of the CWA of 1977, Serial No. 95-14 at 271 (1978). As such, in 
establishing pretreatment standards, EPA's consideration of pass 
through for national technology-based categorical pretreatment 
standards differs from that described above for general pretreatment 
standards. For categorical pretreatment standards, EPA's approach for 
pass through satisfies two competing objectives set by Congress: (1) 
That standards for indirect dischargers be equivalent to standards for 
direct dischargers; and (2) that the treatment capability and 
performance of the POTWs be recognized and taken into account in 
regulating the discharge of pollutants from indirect dischargers.

B. Effluent Limitations Guidelines and Standards Program

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

[[Page 41850]]

limitations guidelines, and thus the Agency typically considers the 
same factors in promulgating PSES for toxic and non-conventional 
pollutants as it considers in promulgating BAT. See Natural Resources 
Defense Council v. EPA, 790 F.2d 289, 292 (3rd Cir. 1986). Similarly, 
in establishing pretreatment standards for new sources, the Agency 
typically considers the same factors in promulgating PSNS as it 
considers in promulgating NSPS (BADCT).

C. Subcategorization

    In developing ELGs, EPA can divide an industry category into 
groupings called ``subcategories'' to provide a method for addressing 
variations among products, processes, treatment costs, and other 
factors that affect the determination of the ``best available'' 
technology. See Texas Oil & Gas Ass'n. v. US EPA, 161 F.3d 923, 939-40 
(5th Cir.1998). Regulation of a category by subcategories provides that 
each subcategory has a uniform set of effluent limitations or 
pretreatment standards that take into account technological 
achievability, economic impacts, and non-water quality environmental 
impacts unique to that subcategory. In some cases, effluent limitations 
or pretreatment standards within a subcategory can be different based 
on consideration of these same factors, which are identified in CWA 
section 304(b)(2)(B). The CWA requires EPA, in developing effluent 
guidelines and pretreatment standards, to consider a number of 
different factors, which are also relevant for subcategorization. The 
CWA also authorizes EPA to take into account other factors that the 
Administrator deems appropriate. CWA section 304(b).

D. Oil and Gas Extraction Effluent Guidelines Rulemaking History

    The Oil and Gas Extraction industry is subcategorized in 40 CFR 
part 435 as follows: (1) Subpart A: Offshore; (2) subpart C: Onshore; 
(3) subpart D: Coastal; (4) subpart E: Agricultural and Wildlife Water 
Use; and (5) subpart F: Stripper. EPA promulgated the first Oil and Gas 
Extraction ELGs (40 CFR part 435) in 1979 establishing BPT-based 
limitations for the Offshore, Onshore, Coastal, and Agricultural and 
Wildlife Use subcategories. EPA established BAT- and NSPS-based limits 
for certain subcategories in 1993 (Offshore), 1996 (Coastal), and 2001 
(Synthetic-based drilling fluids). EPA also established pretreatment 
standards for one subcategory (Coastal) in 1996.
    The previously established subpart C (Onshore) regulation covers 
wastewater discharges from field exploration, drilling, production, 
well treatment, and well completion activities in the onshore oil and 
gas industry. Although UOG resources occur in offshore and coastal 
regions, recent development of UOG resources in the U.S. has occurred 
primarily in onshore regions, to which the regulations in subpart C 
(Onshore) and subpart E (Agricultural and Wildlife Water Use) apply. 
Accordingly, this rule addresses the gap in onshore regulations, and 
only the regulations that apply to onshore oil and gas extraction are 
described in more detail here.
1. Subpart C: Onshore
    Subpart C applies to facilities engaged in the production, field 
exploration, drilling, well completion, and well treatment in the oil 
and gas extraction industry which are located landward of the inner 
boundary of the territorial seas--and which are not included in the 
definition of other subparts--including subpart D (Coastal). The 
regulations at 40 CFR 435.32 specify the following for BPT: There shall 
be no discharge of wastewater pollutants into navigable waters from any 
source associated with production, field exploration, drilling, well 
completion, or well treatment (i.e., produced water, drilling muds, 
drill cuttings, and produced sand).
2. Subpart E: Agricultural and Wildlife Use
    Subpart E applies to onshore facilities located in the continental 
U.S. and west of the 98th meridian for which the produced water has a 
use in agriculture or wildlife propagation when discharged into 
navigable waters. Definitions in 40 CFR 435.51(c) explain that the term 
``use in agricultural or wildlife propagation'' means that (1) the 
produced water is of good enough quality to be used for wildlife or 
livestock watering or other agricultural uses; and (2) the produced 
water is actually put to such use during periods of discharge. The 
regulations at 40 CFR 435.52 specify that the only allowable discharge 
is produced water, with an oil and grease concentration not exceeding 
35 milligrams per liter (mg/L). The BPT regulations prohibit the 
discharge of waste pollutants into navigable waters from any source 
(other than produced water) associated with production, field 
exploration, drilling, well completion, or well treatment (i.e., 
drilling muds, drill cuttings, produced sands).

E. State Pretreatment Requirements That Apply to UOG Extraction 
Wastewater

    In addition to applicable federal requirements, some states 
regulate the management, storage, and disposal of UOG extraction 
wastewater, including regulations concerning pollutant discharges to 
POTWs from oil and gas extraction facilities. In addition to 
pretreatment requirements, some states have indirectly addressed the 
issue of pollutant discharges to POTWs by limiting the management and 
disposal options available for operators to use.
    During initial development of Marcellus shale gas resources, some 
operators managed UOG wastewater by transfer to POTWs. EPA did not 
identify other areas in the U.S. where POTWs routinely accepted UOG 
extraction wastewaters. Chapter A of the TDD summarizes how 
Pennsylvania, Ohio, Michigan, and West Virginia responded to UOG 
extraction wastewater discharges to their POTWs. EPA did not identify 
any states that require zero discharge of pollutants from UOG 
operations to POTWs in the same manner as this final rule.

F. Related Federal Requirements in the Safe Drinking Water Act

    As required by SDWA section 1421, EPA has promulgated regulations 
to protect underground sources of drinking water through Underground 
Injection Control (UIC) programs that regulate the injection of fluids 
underground. These regulations are found at 40 CFR parts 144-148, and 
specifically prohibit any underground injection not authorized by UIC 
permit. 40 CFR 144.11. The regulations classify underground injection 
into six classes; wells that inject fluids brought to the surface in 
connection with oil and gas production are classified as Class II UIC 
wells. Thus, onshore oil and gas extraction facilities that seek to 
meet the zero discharge requirements of the existing ELGs or final 
pretreatment standard through underground injection of wastewater must 
obtain a Class II UIC permit for such disposal or take the wastewater 
to an appropriately permitted injection facility.

V. Industry Profile

    EPA gathered information on the industry via the North American 
Industry Classification System (NAICS), which is a standard created by 
the U.S. Census for use in classifying business establishments within 
the U.S. economy. The industry category affected by this final rule is 
the Oil and Gas Extraction industry (NAICS code 21111). The industry 
has two segments: Crude Petroleum and Gas Extraction (NAICS 211111) 
which is made up of facilities that have wells that produce petroleum 
or natural gas or produce crude petroleum from surface shale or

[[Page 41851]]

tar sands; and Natural Gas Liquid Extraction (NAICS 211112), which is 
made up of facilities that recover liquid hydrocarbons from oil and gas 
field gases and sulfur from natural gas. According to data from the 
Statistics of U.S. Businesses (SUSB), in 2012 there were 6,646 firms in 
the overall Oil and Gas Extraction (OGE) industry. Of those firms, 
98.5% were considered small business based on the Small Business 
Administration (SBA) criteria definition of a small firm in this 
industry as having 500 or fewer employees. In 2012, Oil and Gas 
Extraction sector firms employed, on average, 19 employees and had an 
estimated average $53 million in revenue per firm.
    EPA reviewed financial performance of oil and gas firms from 2006 
to 2014. Generally, over the analysis period, all segments of the oil 
and gas industry showed a similar profile of revenue growth; however, 
reviews of financial performance and condition metrics indicate a 
recent deterioration in financial performance and condition for OGE 
firms since mid-2014 due to the fall in crude oil and natural gas 
prices. The prediction of slow price recovery indicates that the 
financial condition of OGE firms in general may not recover in the 
short term, though the crude oil and natural gas prices are forecast to 
increase through 2040 (DCN SGE01192). While many factors will affect 
further UOG development, and forecasts inevitably involve considerable 
uncertainty, production is expected to continue to increase. EIA 
forecasts that by 2040, shale gas will account for 55 percent of U.S. 
natural gas production, with tight gas as the second leading source at 
22 percent, and shale/tight oil \2\ will account for 45 percent of 
total U.S. oil production (DCN SGE01192). See the industry profile (DCN 
SGE01277) for more information.
---------------------------------------------------------------------------

    \2\ EIA reported this data as ``tight oil'' production but 
stated that it includes production from both shale oil formations 
(e.g., Bakken, Eagle Ford) and tight oil formations (e.g., Austin 
Chalk).
---------------------------------------------------------------------------

VI. Final Rule

A. Scope/Applicability

    Consistent with the proposal, the scope of this final rule is 
specific to pretreatment standards for onshore oil and gas extraction 
facilities (subpart C). EPA did not propose to reopen the regulatory 
requirements applicable to any other subpart or the requirements for 
direct dischargers in subpart C. Rather, the scope of the final rule 
amends subpart C only to add requirements for indirect dischargers 
where there currently are none. Further, also consistent with the 
proposal, the final rule establishes requirements for wastewater 
discharges from UOG extraction facilities to POTWs. It does not 
establish requirements for wastewater discharges from conventional oil 
and gas extraction (COG) facilities. EPA reserves consideration of any 
such standards for a future rulemaking, if appropriate.
    The final rule defines unconventional oil and gas resources as 
``crude oil and natural gas produced by a well drilled into a shale 
and/or tight formation (including, but not limited to, shale gas, shale 
oil, tight gas, and tight oil).'' This definition is generally 
consistent with other readily available sources. For additional 
information, see Chapter B of the TDD.
    As a point of clarification, although coalbed methane would fit 
this definition, the final pretreatment standards do not apply to 
pollutants in wastewater discharges associated with coalbed methane 
extraction to POTWs. EPA notes that the requirements in the existing 
effluent guidelines for direct dischargers also do not apply to coalbed 
methane extraction, as this industry did not exist at the time that the 
effluent guidelines were developed and was not considered by the Agency 
in establishing the effluent guidelines (DCN SGE00761). To reflect the 
fact that neither the final pretreatment standards nor the existing 
effluent guideline requirements apply to coalbed methane extraction, 
EPA expressly reserved a separate unregulated subcategory for coalbed 
methane in this final rule. For information on coalbed methane, see 
https://www.epa.gov/eg/coalbed-methane-extraction-industry.

B. Option Selection

    EPA analyzed three regulatory options at proposal, the details of 
which were discussed fully in the document published on April 7, 2015 
(80 FR 18557). In general, these three options ranged from requiring 
zero discharge of pollutants to POTWs, establishing non-zero 
pretreatment standards, or establishing no national pretreatment 
standards. Depending on the interests represented, public commenters 
supported virtually all of the regulatory options that EPA proposed--
from the least stringent to the most stringent. Thus, in developing 
this final rule, EPA again considered the same three regulatory 
options.
1. PSES
    After considering all of the relevant factors and technology 
options discussed in this preamble and in the TDD, as well as public 
comments, EPA decided to establish PSES based on current industry 
practice: Disposal in UIC wells, wastewater reuse/recycling to fracture 
\3\ another well, or management by centralized waste treatment (CWT) 
facilities--none of which involve sending wastewater to POTWs. Thus, 
for PSES, the final rule establishes a zero discharge standard on all 
pollutants in UOG extraction wastewater.
---------------------------------------------------------------------------

    \3\ In some cases, industry has also re-used/recycled the water 
to drill another well that is not fractured.
---------------------------------------------------------------------------

    Generally, EPA designs pretreatment standards to meet Congress' 
objective to ensure that wastewaters from direct and indirect 
industrial dischargers are subject to similar levels of pollutant 
removals prior to discharge to waters of the U.S. See Chemical 
Manufacturers Assn. v. EPA, 870 F.2d 177, 245 (5th Cir. 1989). This 
means that, typically, the requirements for indirect dischargers are 
analogous to those for direct dischargers. As explained in Section 
IV.C., the existing BPT-based requirement for direct dischargers in the 
Onshore Subcategory is zero discharge of wastewater pollutants into 
waters of the U.S. from any source associated with production, field 
exploration, drilling, well completion, or well treatment.
    As explained in Section XII.E of the proposal (80 FR 18570, April 
7, 2015), EPA evaluated the practices currently used to manage UOG 
extraction wastewaters. Based on the information reviewed as part of 
this final rulemaking, EPA concludes that current industry practice is 
to not discharge pollutants from onshore UOG extraction to POTWs.\4\ 
Rather, the vast majority of this wastewater is managed by disposal in 
underground injection wells and/or re-use in fracturing another well. A 
small, but in some geographic areas increasing, portion of the industry 
also transfers its wastewater to CWT facilities.\5\
---------------------------------------------------------------------------

    \4\ EPA solicited additional data and information on current 
industry practice as well as its preliminary finding that no UOG 
facilities currently discharge to POTWs in the proposal. EPA did not 
receive data since proposal to contradict this finding.
    \5\ Existing effluent limitations guidelines and pretreatment 
standards at 40 CFR part 437 apply to CWT facilities. The CWT 
industry handles wastewater and industrial process by-products from 
off-site. CWT facilities may receive a wide variety of hazardous and 
non-hazardous industrial wastes for treatment.
---------------------------------------------------------------------------

    The technology basis for the promulgated PSES is disposal in UIC 
wells, wastewater reuse/recycling to fracture another well, or 
management by CWT facilities. Because all existing UOG extraction 
facilities currently employ alternative wastewater management practices 
other than

[[Page 41852]]

transfer to a POTW, the technology basis for meeting a zero discharge 
requirement is widely available. While EPA bases pretreatment standards 
and associated discharge limits on a technology basis, the agency does 
not require facilities to employ any specific technology; rather, 
facilities may comply with alternative technologies as long as they 
meet the prescribed limits.
    Some commenters asserted that UIC wells may not be available in the 
future in all geographic locations, but provided no data to support 
their assertion. EPA does not have any data to demonstrate that UIC 
capacity nationwide will be expended and that this current management 
option will not be available in the future (See Chapter D of the TDD). 
Further, data suggest that, where UIC wells are currently available, 
this availability will likely continue in the future (see Chapter D of 
the TDD). Moreover, the technology basis for the final pretreatment 
standards is not limited to UIC disposal. EPA identified two other 
approaches that also meet the zero discharge requirement: Reuse/recycle 
of the wastewater for re-fracturing other wells, or transfer of the 
wastewater to a CWT facility. In recent years, industry has greatly 
expanded its knowledge about the ability to reuse/recycle UOG flowback 
and long-term produced water (the major contributors to UOG extraction 
wastewater by volume) in fracturing another well. Consequently, as the 
UOG industry continues to grow and new wells are being fractured, the 
need for UIC capacity for UOG extraction wastewater may decrease, even 
in geographic locations with an abundance of UIC capacity, due to the 
increased availability of reuse/recycle. In addition, EPA's record 
demonstrates that in areas of the country where UIC wells and/or 
opportunities for reuse in fracturing another well are limited, UOG 
extraction facilities transfer their wastewater to a CWT facility (see 
Chapter D of the TDD). Some commenters assert that the option to 
transfer UOG wastewater to CWT facilities may be limited in the future 
because EPA may revise ELGs for this industry. While EPA is conducting 
a study of CWT facilities that accept oil and gas wastewater to 
determine if revision to the CWT regulations may be appropriate, EPA is 
not evaluating any approaches that would directly restrict their 
availability to accept such wastewaters.
    While the technology basis is best performing in that it achieves 
zero discharge of pollutants in UOG extraction wastewater to POTWs, the 
requirement reflects current industry practice and EPA therefore 
estimates that there will be no incremental pollutant reductions. 
Accordingly, because industry is already meeting this requirement, no 
facilities will incur incremental costs for compliance with the 
promulgated PSES and, therefore, the promulgated PSES is economically 
achievable. For the same reasons, the final PSES will result in no 
incremental non-water quality environmental impacts. Finally, because 
the final rule represents current industry practice, EPA requires that 
the PSES based on zero discharge of wastewater pollutants to POTWs be 
effective as of the effective date of this rule, 60 days after 
publication of this rule in the Federal Register.
    EPA did not establish PSES based on Option 2, under which EPA would 
establish non-zero numerical pretreatment standards for discharges of 
wastewater pollutants from UOG extraction facilities. Such an option 
could be similar to the one adopted in Pennsylvania in 2010 that 
requires pretreatment of oil and gas wastewaters before discharge to a 
POTW to meet a maximum TDS concentration of 500 mg/L as well as 
specific numerical concentrations for other pollutants (see Chapter A 
of the TDD). Some commenters suggested this approach would provide an 
``escape-valve'' for the future in the event that UIC disposal well 
capacity is exhausted. Others have suggested this would allow the water 
to be available for re-use (other than in fracturing another well) if 
technologies become available to pre-treat it to remove dissolved 
pollutants in a cost effective manner.
    Although EPA identified technologies \6\ that currently exist to 
treat dissolved pollutants in UOG extraction wastewater that could be 
used to set a non-zero numeric discharge limit, EPA did not select this 
option for the following reasons. First, the existing requirements for 
direct discharges of UOG extraction wastewater in the Onshore 
Subcategory require zero discharge of pollutants. As explained 
previously, EPA generally establishes requirements for direct and 
indirect discharges so that the wastewater receives comparable levels 
of pollutant removals prior to discharge to waters of the U.S.
---------------------------------------------------------------------------

    \6\ See DCN SGE01186.
---------------------------------------------------------------------------

    Second, as detailed previously, UOG facilities in this subcategory 
are currently meeting the zero discharge requirement. Thus, any option 
that would allow for a discharge of UOG pollutants above the current 
zero discharge level would be less stringent than the current industry 
practice and thus would potentially increase the discharge of such 
pollutants to POTWs. EPA reasonably concluded that--as compared to a 
less stringent non-zero technology basis in Option 2--a standard based 
on available zero discharge options reflects the ``best'' available 
technology within the meaning of Section 304(b) of the Clean Water Act. 
Moreover, unlike Option 2, a zero discharge technology option is 
consistent with the CWA goal of eliminating the discharge of pollutants 
into navigable waters (CWA sections 101(a)(1); 301(b)(2)(A) and 
306(a)(1)).
    Third, EPA disagrees with the commenters' suggestion that an option 
allowing for the discharge to POTWs is necessary as an ``escape valve'' 
in case of limited future availability of UIC disposal options. As 
explained previously, UIC disposal capacity is currently widely 
available, and EPA does not have data to suggest that this capacity 
will be limited in the future. Moreover, approaches to achieve zero 
discharge are not limited to UIC wells, and EPA has no data to suggest 
that other zero discharge options, such as reuse/recycle of wastewater 
for re-fracturing or sending wastewater to CWT facilities, will be 
limited in the future. Without any such data, there is no basis for EPA 
to conclude that an ``escape valve'' allowing for discharge to POTWs is 
needed to address concerns about limited future availability of zero 
discharge technology options.
    Fourth, although EPA identified technologies that currently exist 
to treat dissolved pollutants in UOG extraction wastewater, these TDS-
removal technologies are also likely more costly, as demonstrated by 
information in the record on estimated costs of managing wastewater 
under various approaches, relative to the suite of technologies that 
form the zero discharge technology basis for the final rule. See DCN 
SGE01186, SGE00139, SGE00070, SGE00350, SGE00279, SGE01064, SGE00283, 
SGE00300, SGE00625, SGE00635, SGE00280, SGE00245, SGE00279, SGE00276, 
SGE00275.
    With respect to the comments suggesting that EPA establish a non-
zero numerical treatment standard in order to allow for (non-
fracturing) reuse/recycle of the wastewater, data collected for this 
rulemaking demonstrate that the current technologies are capable of 
reducing TDS (and other dissolved pollutants) well below 500 mg/L (see 
DCN SGE01186). To the extent that these technologies or others are 
developed in the future to reduce pollutants in UOG extraction 
wastewater to enable them to be reused/

[[Page 41853]]

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

[[Page 41854]]

Accordingly, EPA found that there are no overall incremental impacts 
from the final standards on new sources, as is the case for existing 
sources, since the incremental costs faced by new sources generally 
will be the same as those faced by existing sources. EPA projects no 
incremental non-water quality environmental impacts. Therefore, EPA 
established PSNS that are the same as the final PSES for this final 
rule.
    EPA rejected other options for PSNS for the same reasons that the 
Agency rejected other options for PSES. And, as with the final PSES, 
EPA determined that the final PSNS prevent pass through of pollutants 
from POTWs into receiving streams and also help control contamination 
of POTW sludge.
3. Pollutants Selected for Regulation Pass-Through Analysis
    EPA identifies all pollutants in UOG extraction wastewater as 
pollutants of concern and similarly determined all pollutants pass 
through. As a result, all pollutants in UOG extraction wastewater are 
directly regulated by the final pretreatment standards.
    CWA section 301(b) directs EPA to eliminate the discharge of all 
pollutants where it is technologically available and economically 
achievable to do so (after a consideration of the factors specified in 
section 304(b) of the Act). The first step in such an analysis is 
typically to identify Pollutants of Concern (POCs)--or the pollutants 
to be potentially regulated by the effluent guideline. For some 
industries and wastestreams, not every pollutant in the wastestream may 
be a pollutant of concern. For example, not every pollutant may be 
present in an amount or frequency that EPA can demonstrate, using 
available data, is treatable by the candidate technology. Where this is 
the case, EPA may choose to establish numerical limitations for only a 
subset of the pollutants present in the wastestream. For other 
industries and wastestreams, the candidate technology may be capable of 
controlling all pollutants present in the wastestream regardless of 
amount or frequency. Where this is the case, EPA considers all 
pollutants in the wastestream to be POCs. This is the case in this 
final rule because, as described previously, the technology bases for 
the rule: underground injection of UOG extraction wastewater, recycling 
and reuse of that wastewater, or management by CWT facilities; results 
in zero discharge of all pollutants from UOG facilities to POTWs. 
Therefore, under this rule, all pollutants in UOG extraction wastewater 
are POCs. Chapter C of the TDD provides a summary of available 
characterization data for UOG extraction wastewaters.
    In addition, before establishing PSES/PSNS for a pollutant, EPA 
examines whether the pollutant ``passes through'' a POTW to waters of 
the U.S. or interferes with the POTW operation or sludge disposal 
practices. In determining whether a pollutant passes through POTWs for 
these purposes,\7\ where EPA establishes non-zero pretreatment 
standards, EPA generally compares the percentage of a pollutant removed 
by well-operated POTWs performing secondary treatment to the percentage 
removed by the BAT/NSPS technology basis. A pollutant is determined to 
pass through POTWs when the median percentage removed nationwide by 
well-operated POTWs is less than the median percentage removed by the 
BAT/NSPS technology basis. Pretreatment standards are established for 
those pollutants regulated under BAT/NSPS that pass through POTWs. In 
this way, EPA is able to ensure that the standards for indirect 
dischargers are equivalent to direct dischargers and that the treatment 
capability and performance of POTWs is recognized and taken into 
account in regulating the pollutants from indirect dischargers.
---------------------------------------------------------------------------

    \7\ As explained in Section IV, the definition of pass through 
for general pretreatment standards appropriately differs from the 
definition in establishing national categorical pretreatment 
standards as they serve different objectives.
---------------------------------------------------------------------------

    For those wastestreams regulated with a zero discharge limitation 
or standard, EPA typically sets the percentage removed by the 
technology basis at 100 percent for all pollutants. Because a POTW 
would not be able to achieve 100 percent removal of wastewater 
pollutants, the percent removal at a POTW would be less than that of 
the candidate zero-discharge technology. For this final rule, using 
this approach, EPA determined that all pollutants pass through and that 
it is appropriate to set PSES/PSNS for all pollutants to prevent pass 
through.

VII. Environmental Impacts

    UOG production generates significant volumes of wastewater that 
need to be managed. As described in Section XII.C.2 of the proposed 
rule (80 FR 18569, April 7, 2015), unconventional wells can produce 
flowback volumes ranging between 210,000 and 2,100,000 gallons during 
the initial flowback process.\8\ During the production phase, wells 
typically produce smaller volumes of water (median flow rates range 
from 200-800 gallons per day) and continue producing wastewater 
throughout the life of the well (see TDD Chapter C.2).
---------------------------------------------------------------------------

    \8\ As explained in Chapter B of the TDD the length of the 
flowback process is variable. Literature generally reports it as 30 
days or less (DCN SGE00532).
---------------------------------------------------------------------------

    In general, evidence of environmental impacts to surface waters 
from discharges of UOG extraction wastewater is sparsely documented--as 
direct discharges from onshore oil and gas extraction have been 
prohibited under the existing regulations since 1979; and based on 
current industry best practice, there have been few indirect discharges 
of such wastewater to POTWs. Some of the environmental impacts 
documented to date, such as increased DBP formation in downstream 
drinking water treatment plants, resulted from wastewater pollutants 
that passed untreated through POTWs in Pennsylvania (see Chapter D of 
the TDD).

A. Pollutants

    As described in Section XII.D of the proposed rule (80 FR 18569, 
April 7, 2015), high concentrations of TDS are common in UOG extraction 
wastewater. Inorganic constituents leaching from geologic formations, 
such as sodium, potassium, bromide, calcium, fluoride, nitrate, 
phosphate, chloride, sulfate, and magnesium, represent most of the TDS 
in UOG extraction wastewater. Produced water can also include barium, 
radium, and strontium. Based on available data, TDS cations (positively 
charged ions) in UOG extraction wastewater are generally dominated by 
sodium and calcium, and the anions (negatively charged ions) are 
dominated by chloride (DCN SGE00284; See also Chapter C of the TDD). 
TDS concentrations vary among the UOG formations and can exceed 350,000 
mg/L. For comparison, sea water contains approximately 35,000 mg/L TDS.

B. Impacts From the Discharge of Pollutants Found in UOG Extraction 
Wastewater

    As explained in Chapter D of the TDD, POTWs are typically designed 
to treat organic waste, total suspended solids, and constituents 
responsible for biochemical oxygen demand, not to treat TDS. When 
transfers of UOG extraction wastewater to POTWs were occurring in 
Pennsylvania, these POTWs, lacking adequate TDS removal processes, 
diluted UOG extraction wastewaters with other sewage flows and 
discharged TDS-laden effluent into local streams and rivers. POTWs not 
sufficiently treating TDS in UOG extraction wastewater were a suspected 
source of elevated TDS levels in the Monongahela River in 2009 (DCN

[[Page 41855]]

SGE00525). Also see Chapter D of the TDD for additional examples.
    In addition to UOG wastewater pollutants passing through POTWs, 
other industrial discharges of inadequately treated UOG extraction 
wastewater have also been associated with in-stream impacts. One study 
of discharges from a CWT facility in western Pennsylvania that treats 
UOG extraction wastewater examined the water quality and isotopic 
compositions of discharged effluents, surface waters, and stream 
sediments (DCN SGE00629).\9\ The facility's treatment process includes 
settling, precipitation, and fine screening, but does not remove TDS 
(DCN SGE00525). The study found that the discharge of the effluent from 
the CWT facility increased downstream concentrations of chloride and 
bromide above background levels. The chloride concentrations 1.7 
kilometers downstream of the treatment facility were two to ten times 
higher than chloride concentrations found in similar reference streams 
in western Pennsylvania. Radium 226 levels in stream sediments at the 
point of discharge were approximately 200 times greater than upstream 
and background sediments.
---------------------------------------------------------------------------

    \9\ Discharges from CWT facilities are subject to ELGs in 40 CFR 
part 437. However, the effect of discharges of treated oil and gas 
wastewaters from CWT facilities that lack treatment for TDS is 
similarly representative of POTWs.
---------------------------------------------------------------------------

C. Impact on Surface Water Designated Uses

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

[[Page 41856]]

Elevated TDS levels can limit the usefulness of water for irrigation. 
Excessive salts affect crop yield in the short term, and the soil 
structure in the long term. Primary direct impacts of high salinity 
water on plant crops include physiological drought, increased osmotic 
potential of soil, specific ion toxicity, leaf burn, and nutrient 
uptake interferences (DCN SGE00938). In general, for various classes of 
crops the salinity tolerance decreases in the following order: forage 
crops, field crops, vegetables, fruits.
    In addition to short-term impacts to crop plants, irrigating with 
high TDS water can result in gradual accumulation of salts or sodium in 
soil layers and eventual decrease in soil productivity. The 
susceptibility of soils to degradation is dependent on the soil type 
and structure. Sandy soils are less likely than finely textured soils 
to accumulate salts or sodium. Soils with a high water table or poor 
drainage are more susceptible to salt or sodium accumulation. The most 
common method of estimating the suitability of a soil for crop 
production is through calculation of its sodicity as estimated by the 
soil's sodium absorption ratio (SAR). The impact of irrigation water 
salinity on crop productivity is a function of both the SAR value and 
the electrical conductivity. The actual field-observed impacts are very 
site-specific depending on the soil and crop system (DCN SGE00938).
5. Industrial Uses
    POTW discharges to surface waters are often upstream of industrial 
facilities that withdraw surface waters for various cooling and process 
uses. High concentration of TDS can adversely affect industrial 
applications requiring the use of water in cooling tower operations, 
boiler feed water, food processing, and electronics manufacturing. 
Concentrations of TDS above 500 mg/L result in excessive scaling in 
water pipes, water heaters, boilers and household appliances (DCN 
SGE00174). Depending on the industry, TDS in intake water can interfere 
with chemical processes within the plant. Some industries requiring 
ultrapure water, such as semi-conductor manufacturing facilities, are 
particularly sensitive to high TDS levels due to the treatment cost for 
the removal of TDS.

VIII. Regulatory Implementation of the Standard

    The requirements in this rule apply to discharges from UOG 
facilities through local pretreatment programs under CWA section 307. 
Pretreatment standards promulgated under section 307(b) and (c) are 
self-implementing. See CWA section 307(d). The duty to comply with such 
standards is independent of any state or a municipal control authority 
permit or control mechanism containing the standards and associated 
reporting requirements.

A. Implementation Deadline

    Because the requirements of the final rule are based on current 
practice, EPA determined that the PSES/PSNS standards apply on the 
effective date of the final rule, August 29, 2016.

B. Upset and Bypass Provisions

    For discussion of upset and bypass provisions, see the proposed 
rule (80 FR 18569, April 7, 2015).

C. Variances and Modifications

    For discussion of variances and modifications, see the proposed 
rule (80 FR 18569, April 7, 2015).

IX. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders 
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was 
therefore not submitted to the Office of Management and Budget (OMB) 
for review.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act. This final rule codifies 
current industry practice and does not impose any additional reporting 
requirements.

C. Regulatory Flexibility Act

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the Regulatory 
Flexibility Act. In making this determination, the impact of concern is 
any significant adverse economic impact on small entities. An agency 
may certify that a rule will not have a significant economic impact on 
a substantial number of small entities if the rule relieves regulatory 
burden, has no net burden or otherwise has a positive economic effect 
on the small entities subject to the rule.
    For purposes of assessing the impacts of the final rule on small 
entities, small entity is defined as: A small business that is 
primarily engaged in Crude Petroleum and Natural Gas Extraction and 
Natural Gas Liquid Extraction by NAICS code 211111 and 211112 with 
fewer than 500 employees (based on Small Business Administration size 
standards). The small entities that are subject to the requirements of 
this final rule are small businesses that engage in UOG extraction as 
defined in Section V, of this preamble. No small businesses will 
experience a significant economic impact because the final rulemaking 
codifies current industry practice and does not impose any new 
requirement that is not already being met by the industry. I have 
therefore concluded that this action will have no net regulatory burden 
for all directly regulated small entities.

D. Unfunded Mandates Reform Act

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. The action imposes no incremental enforceable duty 
on any state, local or tribal governments or the private sector.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It does not 
alter the basic state-federal scheme established in the CWA under which 
EPA authorizes states to carry out the NPDES permit program. It will 
not have substantial direct effect on the states, on the relationship 
between the national government and the states, or on the distribution 
of power and responsibilities among the various levels of government. 
Although this order does not apply to this action, as explained in 
Section VI, EPA coordinated closely with states through a workgroup, as 
well as outreach efforts to pretreatment coordinators and pretreatment 
authorities.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175. It will not have substantial direct effects on 
tribal governments, on the relationship between the Federal government 
and Indian tribes, or on the distribution of power and responsibilities 
between the Federal government and Indian tribes. The final rule 
contains no Federal mandates for tribal governments and does not impose 
any enforceable duties on tribal governments. Thus, Executive Order 
13175 does not apply to this action.
    Although Executive Order 13175 does not apply to this action, the 
EPA coordinated with tribal officials early in

[[Page 41857]]

the process of developing this rule to enable them to have meaningful 
and timely input into its development. EPA coordinated with federally 
recognized tribal governments in May and June of 2014, sharing 
information about the UOG pretreatment standards proposed rulemaking 
with the National Tribal Caucus and the National Tribal Water Council. 
EPA continued the outreach effort by collecting data about UOG 
operations on tribal reservations, UOG operators that are affiliated 
with Indian tribes, and POTWs owned or operated by tribes that can 
accept industrial wastewaters (see DCN SGE00785). Based on this 
information, there are no tribes operating UOG wells that discharge 
wastewater to POTWs nor are there any tribes that own or operate POTWs 
that accept industrial wastewater from UOG facilities; therefore, this 
final rule will not impose any costs on tribes.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    This action is not subject to Executive Order 13045 because it is 
not economically significant as defined in Executive Order 12866, and 
because the EPA does not believe the environmental health or safety 
risks addressed by this action present a disproportionate risk to 
children. This action codifies current industry practice; therefore 
there is no change in environmental health or safety risks.

H. Executive Order 13211: Energy Effects

    This action is not subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    This final rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    The final rule will neither increase nor decrease environmental 
protection (as described in Section VI) as it codifies current industry 
practice; therefore, EPA determined that the human health or 
environmental risk addressed by this action will not have potential 
disproportionately high and adverse human health or environmental 
effects on minority, low-income or indigenous populations. EPA 
requested comment on this E.O. in the proposal (80 FR 18579; April 7, 
2015) and received no comments.

K. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule 
report to each House of the Congress and to the Comptroller General of 
the United States. This action is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

List of Subjects in 40 CFR Part 435

    Environmental protection, Pretreatment, Waste treatment and 
disposal, Water pollution control, Unconventional oil and gas 
extraction.

    Dated: June 13, 2016.
Gina McCarthy,
Administrator.

    Therefore, 40 CFR part 435 is amended as follows:

PART 435--OIL AND GAS EXTRACTION POINT SOURCE CATEGORY

0
1. The authority citation for part 435 is revised to read as follows:

    Authority: 33 U.S.C. 1251, 1311, 1314, 1316, 1317, 1318, 1342 
and 1361.

Subpart C--Onshore Subcategory

0
2. Add Sec.  435.33 to subpart C to read as follows:


Sec.  435.33  Pretreatment standards for existing sources (PSES).

    (a) PSES for wastewater from unconventional oil and gas extraction. 
Except as provided in 40 CFR 403.7 and 403.13, any existing source 
subject to this section, must achieve the following pretreatment 
standards for existing sources (PSES).
    (1) There shall be no discharge of wastewater pollutants associated 
with production, field exploration, drilling, well completion, or well 
treatment for unconventional oil and gas extraction (including, but not 
limited to, drilling muds, drill cuttings, produced sand, produced 
water) into publicly owned treatment works.
    (2) For the purposes of this section,
    (i) Unconventional oil and gas means crude oil and natural gas 
produced by a well drilled into a shale and/or tight formation 
(including, but not limited to, shale gas, shale oil, tight gas, tight 
oil).
    (ii) Drill cuttings means the particles generated by drilling into 
subsurface geologic formations and carried out from the wellbore with 
the drilling fluid.
    (iii) Drilling mud means the circulating fluid (mud) used in the 
rotary drilling of wells to clean and condition the hole and to 
counterbalance formation pressure.
    (iv) Produced sand means the slurried particles used in hydraulic 
fracturing, the accumulated formation sands, and scales particles 
generated during production. Produced sand also includes desander 
discharge from the produced water waste stream, and blowdown of the 
water phase from the produced water treating system.
    (v) Produced water means the fluid brought up from the hydrocarbon-
bearing strata during the extraction of oil and gas, and includes, 
where present, formation water, injection water, and any chemicals 
added downhole or during the oil/water separation process.
    (b) PSES for Wastewater from Conventional Oil and Gas Extraction. 
[Reserved]

0
3. Add Sec.  435.34 to subpart C to read as follows:


Sec.  435.34  Pretreatment standards for new sources (PSNS).

    (a) PSNS for wastewater from unconventional oil and gas extraction. 
Except as provided in 40 CFR 403.7 and 403.13, any new source with 
discharges subject to this section must achieve the following 
pretreatment standards for new sources (PSNS).
    (1) There shall be no discharge of wastewater pollutants associated 
with production, field exploration, drilling, well completion, or well 
treatment for unconventional oil and gas extraction (including, but not 
limited to, drilling muds, drill cuttings, produced sand, produced 
water) into publicly owned treatment works.
    (2) For the purposes of this section, the definitions of 
unconventional oil and gas, drill cuttings, drilling muds, produced 
sand, and produced water are as specified in Sec.  435.33(b)(2)(i) 
through (v).
    (b) PSNS for Wastewater from Conventional Oil and Gas Extraction. 
[Reserved]

0
4. Add subpart H to read as follows:

Subpart H--Coalbed Methane Subcategory [Reserved]

[FR Doc. 2016-14901 Filed 6-27-16; 8:45 am]
BILLING CODE 6560-50-P