Federal Register / Vol. 81, No. 124 / Tuesday, June 28, 2016 / Rules and Regulations 41845 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by August 29, 2016. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this action for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2)). 

List of Subjects in 40 CFR Part 52 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Ozone, Particulate 

Matter, Reporting and recordkeeping 

requirements, Sulfur oxides. 

Dated: June 16, 2016. 

Mark Hague, 

Regional Administrator, Region 7. 

For the reasons stated in the 

preamble, EPA amends 40 CFR part 52 

as set forth below: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for part 52 

continues to read as follows: 

Authority: 42 U.S.C. 7401 et seq. 

Subpart AA-Missouri 

■ 2. In § 52.1320: 

■ a. Revise the section heading. 

■ b. In the table in paragraph (c), under 

Chapter 6, add entries ‘‘10–6.372’’ and 

‘‘10–6.376’’ in numerical order. 

The revisions read as follows: 

§ 52.1320 Identification of plan. 

* * * * * 

(c)* * * 

EPA-APPROVED MISSOURI REGULATIONS

Missouri citation Title State effective 

date EPA approval date Explanation 

Missouri Department of Natural Resources 

*******

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

Missouri 

*******

10–6.372 ........... Cross-State Air Pollution Rule Annual NOX Trading 

Allowance Allocations.

12/30/15 6/28/16 [Insert Federal 

Register citation].

10–6.376 ........... Cross-State Air Pollution Rule Annual SO2 Trading 

Allowance Allocations.

12/30/15 6/28/16 [Insert Federal 

Register citation].

* * * * * * * 

* * * * * 

[FR Doc. 2016–15048 Filed 6–27–16; 8:45 am] 

BILLING CODE 6560–50–P 

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. 

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 


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41846 Federal Register / Vol. 81, No. 124 / Tuesday, June 28, 2016 / Rules and Regulations 

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-oiland-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-extractioneffluent-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: 

Milam.Karen@epa.gov. 

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 PassThrough 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: 

Category Examples of regulated entities 

North American 

Industry 

Classification 

System (NAICS) 

Code 

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

Natural Gas Liquid Extraction ................................................................................... 211112 

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-oiland-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 


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1Naturally 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) 

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. 

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 municipallygenerated, 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 


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41848 Federal Register / Vol. 81, No. 124 / Tuesday, June 28, 2016 / Rules and Regulations 

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 technologybased 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, technologybased 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., ammoniaN, 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 technologybased 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 twopart ‘‘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 


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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 


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2EIA 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). 

3 In some cases, industry has also re-used/

recycled the water to drill another well that is not 

fractured. 4EPA 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. 

5Existing 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. 

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. 

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/coalbedmethane-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 nonzero 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. 

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

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 


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6See DCN SGE01186. 

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 refracturing 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. 

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 refracturing 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/ 


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recycled for purposes other than 

fracturing another well, these pretreated 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, resourceconstrained 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 caseby-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. 


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7As 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. 

8As 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). 

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. 

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). 

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 


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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. 

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. 

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. 


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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 fieldobserved 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/lawsregulations/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 


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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 

■ 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 

■ 2. Add § 435.33 to subpart C to read 

as follows: 

§ 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 hydrocarbonbearing 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] 

■ 3. Add § 435.34 to subpart C to read 

as follows: 

§ 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 § 435.33(b)(2)(i) through 

(v). 

(b) PSNS for Wastewater from 

Conventional Oil and Gas Extraction. 

[Reserved] 

■ 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 


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