[Federal Register Volume 81, Number 235 (Wednesday, December 7, 2016)]
[Rules and Regulations]
[Pages 88126-88127]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-29338]



[[Page 88126]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 435

[EPA-HQ-OW-2014-0598; FRL-9956-05-OW]
RIN 2040-AF68


Effluent Limitations Guidelines and Standards for the Oil and Gas 
Extraction Point Source Category--Implementation Date Extension

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to extend the implementation deadline for certain facilities 
subject to the final rule establishing pretreatment standards under the 
Clean Water Act (CWA) for discharges of pollutants into publicly owned 
treatment works (POTWs) from onshore unconventional oil and gas (UOG) 
extraction facilities.

DATES: The final rule is effective December 7, 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 December 21, 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 
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 https://www.regulations.gov Web site. Although listed in 
the index, some information is not publicly available, e.g., 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. This 
material can be viewed at the Water Docket in the EPA Docket Center, 
EPA/DC, EPA West William Jefferson Clinton Bldg,. Room 3334, 1301 
Constitution Ave. NW., Washington, DC. The Public Reading Room is open 
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal 
holidays. The telephone number for the Public Reading room is 202-566-
1744, and the telephone number for the Water Docket is 202-566-2426. 
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 the 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 (4303T), Office of Water, 
Environmental Protection Agency, 1200 Pennsylvania Ave. NW., 
Washington, DC 20460-0001; telephone: 202-566-1915; email: 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Does this action apply to me?

    Entities potentially regulated by this final action include:

----------------------------------------------------------------------------------------------------------------
                                                                                                 North American
                                                                                                    Industry
                Category                               Example of regulated entity               Classification
                                                                                                 System  (NAICS)
                                                                                                      Code
----------------------------------------------------------------------------------------------------------------
Industry................................  Crude Petroleum and Natural Gas Extraction..........            211111
Industry................................  Natural Gas Liquid Extraction.......................            211112
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II. Supplementary Information

A. Background

    The EPA promulgated revisions to the Effluent Guidelines and 
Standards for the Oil and Gas Extraction Point Source Category which 
established pretreatment standards for onshore UOG extraction 
facilities (81 FR 41845, June 28, 2016). This final pretreatment 
standards rule prohibited the discharge of pollutants in UOG extraction 
wastewater to POTWs, and established an effective date of August 29, 
2016. In the preamble to the final pretreatment standards rule, the EPA 
indicated that because UOG facilities were currently meeting this zero 
discharge requirement, the implementation deadline for these 
pretreatment standards would be the same as the effective date of the 
final rule. After promulgation of the final rule, the EPA received two 
letters indicating that there are likely facilities discharging UOG 
wastewater to POTWs; this was new information to the EPA.
    In light of this post-promulgation information, on September 30, 
2016 (81 FR 67266, September 30, 2016), the EPA published a proposed 
rule to extend the compliance date to August 29, 2019, for existing 
sources that were lawfully discharging UOG wastewater to POTWs on or 
between the date of the Federal Register Notice of the proposed UOG 
pretreatment standards rule (80 FR 18557, April 17, 2015) and the date 
of the Federal Register action of the final UOG pretreatment standards 
rule (81 FR 41845, June 28, 2016). For purposes of this final rule, 
compliance date and implementation date are used interchangeably.

B. Description of EPA's Action

    Based on the post-promulgation information submitted to the EPA 
suggesting that there are likely facilities subject to the final UOG 
pretreatment standards rule that are currently discharging UOG 
wastewater to POTWs, the EPA is extending the compliance date for 
existing sources that were lawfully discharging to POTWs on or between 
April 7, 2015 and June 28, 2016, to three years from the effective date 
of the rule--to August 29, 2019. This final rule does not change the 
compliance date for all other facilities subject to the final onshore 
UOG extraction pretreatment standards rule.

C. Response to Comments

    Comments received in response to the proposed rulemaking supported 
the extension of the compliance date for these facilities. The EPA did 
not receive any comments that opposed or otherwise questioned the 
appropriateness of the extension of the compliance date. The EPA did, 
however, receive comments regarding the applicability of the underlying 
pretreatment standards rule. Specifically, these comments disagreed 
with the definition of ``unconventional'' in the final UOG rule, 
arguing that the definition was ``overly broad'' or ``arbitrary,'' and 
suggested alternative definitions of ``unconventional'' that

[[Page 88127]]

may exclude certain operators in Pennsylvania that have been sending 
their wastewater to POTWs. These comments are outside the scope of the 
proposed rule, which was specifically limited to the extension of the 
compliance date. See 81 FR 67267; September, 30, 2016 (``EPA will not 
consider any comment submitted on the proposed rule published today on 
any topic other than the appropriateness of an extension of the 
compliance date; any other comments will be considered outside the 
scope of this rulemaking.''). As clarified in the preamble to the 
proposed rulemaking, the rule simply extends the implementation 
deadline for certain facilities subject to the underlying final UOG 
pretreatment standard rule and does not otherwise amend the final 
pretreatment standards rule in any way. See 81 FR 67266, 67267; 
September 30, 2016 (incorporating rationale set forth in direct final 
rule at 81 FR 67191, 67192; September 30, 2016). Therefore, the EPA 
maintains that comments regarding the applicability of the underlying 
pretreatment standards rule are outside the scope of the proposed rule. 
Any such challenges were required to be raised with respect to the 
underlying pretreatment standards rule, and not with this final rule, 
which is limited to the extension of the compliance date.
    The EPA's extension of the compliance date by three years is 
reasonable, as acknowledged by industry commenters on the direct final 
rule. See, e.g., Comments from Pennsylvania Independent Oil and Gas 
Association (finding the three year extension to be ``a reasonable, 
measured and appropriate accommodation.''). As noted in the proposed 
rule, this is consistent with the EPA's General Pretreatment 
regulations, which require existing sources to meet categorical 
pretreatment standards within three years of the effective date of such 
standards, unless a shorter compliance time is specified therein. 40 
CFR 403.6(b). Although commenters expressed generalized concerns about 
adverse impacts on facilities that have been sending UOG wastewater to 
POTWs, these generalized concerns are not sufficient to undermine the 
reasonableness of a three year timeframe for these facilities to meet 
the pretreatment standard--particularly when the rulemaking record for 
the EPA's final UOG pretreatment standard rule demonstrates that other 
similarly-situated operators are currently meeting the zero discharge 
pretreatment standard today. EPA did not receive any comments or data 
attempting to explain why the facilities subject to this final rule 
would need longer than three years in order to meet the requirements 
that are currently being met by the vast majority of the industry.

III. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993) and 
Executive Order 13563 (76 FR 3821, January 21, 2011), this action is 
not a ``significant regulatory action'' and is therefore not subject to 
OMB review. With respect to the Regulatory Flexibility Act (5 U.S.C. 
601 et seq.), this action will not have a significant economic impact 
on a substantial number of small entities--as this direct final 
relieves regulatory burden by extending the compliance date for any 
businesses (including small businesses) that were discharging UOG 
wastewater to POTWs at the time of issuance of the pretreatment 
standard. For the Sections 202 and 205 of the Unfunded Mandates Reform 
Act of 1999 (UMRA) (Pub. L. 104-4), this action 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. This action does not create new binding legal 
requirements that substantially and directly affect Tribes under 
Executive Order 13175 (65 FR 67249, November 9, 2000). This action does 
not have significant Federalism implications under Executive Order 
13132 (64 FR 43255, August 10, 1999). Because this final rule has been 
exempted from review under Executive Order 12866, this final rule is 
not subject to Executive Order 13211, entitled Actions Concerning 
Regulations That Significantly Affect Energy Supply, Distribution, or 
Use (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled 
Protection of Children from Environmental Health Risks and Safety Risks 
(62 FR 19885, April 23, 1997). This final rule does not contain any 
information collections subject to OMB approval under the Paperwork 
Reduction Act (PRA), 44 U.S.C. 3501 et seq., nor does it require any 
special considerations under Executive Order 12898, entitled Federal 
Actions to Address Environmental Justice in Minority Populations and 
Low-Income Populations (59 FR 7629, February 16, 1994). This action 
does not involve technical standards; thus, the requirements of Section 
12(d) of the National Technology Transfer and Advancement Act of 1995 
(15 U.S.C. 272 note) do not apply.

Congressional Review Act

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

    Dated: November 28, 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 continues to read as follows:

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

Subpart C--Onshore Subcategory

0
2. Amend Sec.  435.33 by adding paragraph (a)(3) to read as follows:


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

    (a) * * *
    (3) Compliance deadline for existing sources. Existing sources 
discharging into publicly owned treatment works on or between April 7, 
2015 and June 28, 2016, shall comply with the PSES by August 29, 2019. 
All other existing sources shall comply by August 29, 2016.
* * * * *
[FR Doc. 2016-29338 Filed 12-6-16; 8:45 am]
 BILLING CODE 6560-50-P