Pretreatment Standards for Unconventional Oil and Gas Extraction: 

EPA’s Response to Public Comments

 

Comment Response Document

Effluent Limitations Guidelines and 

Standards for the Oil and Gas Extraction

Point Source Category (Pretreatment 

Standards for Unconventional Oil and Gas 

Extraction Wastewater)

June 2016

U.S. Environmental Protection Agency

Office of Water (4303T)

Washington, DC 20460
Pretreatment Standards for Unconventional Oil and Gas Extraction: 

EPA’s Response to Public Comments

FOREWORD

This document provides responses to all significant comments submitted on EPA’s proposed 

pretreatment standards for unconventional oil and gas extraction wastewater. EPA’s proposal 

was published in the Federal Register on April 7, 2015 (80 FR 18557) and the public comment 

period closed on July 17, 2015.

Submitted comments are available electronically through http://www.regulations.gov by 

searching Docket ID No. EPA- HQ-OW-2014-0598 and in hard copy at the EPA Docket Center 

Public Reading Room. The telephone number for the Water Docket is (202) 566-2426 and the 

telephone number for the Public Reading Room is (202) 566-1744. The Water Docket assigned a 

unique Document Control Number (DCN) to each comment submittal with the following format: 

EPA-HQ-OW- 2014-0598-xxxx, where the four digit number at the end is unique to that 

comment submittal. Where a commenter submitted more than one file, EPA has included an 

attachment number, for example EPA-HQ-OW-2014-0598-xxxx-A1 (A2, A3, etc.).

The Table of Contents provides a list of comment topics covered in this document. To organize 

the comments and to facilitate EPA’s responses, EPA classified comment submittals received by 

topic. If a specific comment submittal addressed multiple topics, EPA subdivided the submittal 

by topic. Comments or portions of comments assigned to specific topics are referred to as 

“comment excerpts.” The individual comment excerpts classified to a specific topic are 

reproduced within the chapter or subchapter corresponding to that topic and they appear with a 

bold heading which contains the DCN for the comment submittal as well as an abbreviation for 

the commenter’s name and the page number representing the first page in the comment letter 

from which the excerpt was extracted (e.g., EPA-HQ-OW-2014-0598-1054 (NACWA pg 1)).

In some cases, EPA responded to each comment excerpt individually, while in other cases EPA’s 

response addresses multiple excerpts. When responding to multiple excerpts, EPA included all 

excerpts before EPA’s response. Where responding to comment excerpts individually, EPA’s 

response follows the individual comment excerpt. In either case, EPA’s response follows the 

bold heading containing the word “Response” and a unique identifier for that response (e.g., 

Response 3-A). EPA notes that many commenters raised the same, similar, or related issues. 

Therefore, in many cases, the response to a specific excerpt may refer the reader to another 

response that exists for a different excerpt(s). In these cases, EPA has included in a response a 

cross references to additional responses, EPA has indicated that by listing the unique response 

identifier (e.g., See also Response 3-A, Response 4-C).

While EPA endeavored to be accurate and consistent in assigning comment excerpts to topics 

and sub-topics, and in cross-referencing other relevant responses, some excerpts may have 

content that overlaps multiple topics. Accordingly, readers may find it helpful to read this entire 

document to obtain EPA’s response regarding a given general topic. Moreover, in many 

instances, particular responses presented in the Response to Comments Document include cross 

references to other portions of the administrative record, including the preamble and the 

Technical Development Document (TDD), where the commenter can find additional 

information. All issues on which the Agency is taking final action are addressed in the 

rulemaking record. Accordingly, the Response to Comments Document, together with the 
Pretreatment Standards for Unconventional Oil and Gas Extraction: 

EPA’s Response to Public Comments

preamble and the rest of the administrative record should be considered collectively as the 

Agency’s response to all of the significant comments submitted on the proposed rule.

To locate other documents in the record, the reader should use the final rule record index.

For information on the final rule record index and how to use it, see the Docket Users Guide

(DCN SGE01247).
Table of Contents

Table of Contents

1.0 LEGAL AUTHORITY AND EXECUTIVE ORDER REQUIREMENTS ............................................. 6

EPA’s Approach for Establishing Pretreatment Standards..................................... 6

Pass Through Analysis.......................................................................................... 15

Technology Availability ....................................................................................... 29

General: EPA’s Rationale for the Rule................................................................. 41

Non-Water Quality Impacts.................................................................................. 43

Precedent for Zero Discharge ............................................................................... 45

Energy Impacts ..................................................................................................... 46

EPA’s Economic and Cost Approach ................................................................... 47

2.0 IMPLEMENTATION.............................................................................................................. 55

EPA’s Study of Centralized Waste Treatment Facilities...................................... 55

Use of Centralized Waste Treatment Facilities .................................................... 58

Timing of the Proposal.......................................................................................... 62

General: Need for Federal Pretreatment Regulations........................................... 63

Comments Regarding Potential Impacts on Water Availability........................... 64

3.0 DATA USED TO SUPPORT THE RULE................................................................................... 66

Dataset Availability or Limitations....................................................................... 66

Data Variability..................................................................................................... 76

Underground Injection Control Disposal Wells as a Technology Basis............... 81

Data on Discharges to Publicly Owned Treatment Works................................... 89

Additional Data or Sources Provided in Comments............................................. 96

Comments on the Availability of Recycling....................................................... 118

Benefits of the Rule ............................................................................................ 119

4.0 RATIONALE FOR PSES AND PSNS................................................................................... 121

Comments Regarding Regulatory Options Considered...................................... 121

Variances and Removal Credits.......................................................................... 127

Variability in the Industry................................................................................... 129

Variability and Trends in Wastewater Management Strategies Over Time ....... 131

Removal of Publicly Owned Treatment Works as a Wastewater Management 

Option 132

Support for the Rule or Describe a Need for the Rule........................................ 133

Support for the rule: Drinking Water Protection ................................................ 156

General: Against the Need for this Rule ............................................................. 158

Pretreatment for Conventional Oil and Gas Extraction Wastewater .................. 161

Subcategorization................................................................................................ 162

5.0 REGULATORY LANGUAGE................................................................................................ 165

Definitions........................................................................................................... 165

Applicability and Scope...................................................................................... 178

Comments Regarding Definitions of PSES and PSNS....................................... 180

6.0 OUTSIDE THE SCOPE OF THE RULEMAKING...................................................................... 181
Table of Contents

General: Outside the Scope of the Rulemaking.................................................. 181

Landfill Leachate Regulations............................................................................ 183

Centralized Waste Treatment Effluent Limitations Guidelines and Standards.. 185

Coalbed Methane Wastewater Effluent Guidelines and Standards .................... 190

All comments under Section 6.4 “Coalbed Methane Wastewater Effluent 

Guidelines and Standards................................................................................................ 191

Water Quality Criteria for Hydraulic Fracturing Chemicals and Unconventional 

Oil and Gas Wastewater.................................................................................................. 192

Underground Injection Control and Seismicity .................................................. 193

All comments under Section 6.7 “Underground Injection Control and Seismicity

195

Solid Waste and Emergency Response............................................................... 196

Beneficial Reuse of Produced Water for Agriculture and Wildlife Uses and Land 

Application...................................................................................................................... 197
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

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Coded Comment Excerpts

1.0 LEGAL AUTHORITY AND EXECUTIVE ORDER REQUIREMENTS

EPA’s Approach for Establishing Pretreatment Standards

Comments

EPA-HQ-OW-2014-0598-0967 (NE pg 4)

Second, EPA's practice of "design[ing] nationally applicable pretreatment standards to ensure 

that wastewaters from direct and indirect dischargers [in the same industry] are subject to similar 

levels of treatment" is inconsistent with the requirements of the Clean Water Act.16 Under the 

Clean Water Act, EPA must set pretreatment standards, not to ensure that direct and indirect 

dischargers are "subject to similar levels of treatment," but to ensure that:

1. Wastewater discharged to a POTW is pretreated such that the wastewater that may be received 

by the POTW will not "pass through" the POTW and into waters of the United States such that it 

will cause a violation of the POTWs NPDES permit; and

2. Wastewater will not "interfere" with the treatment processes of the POTW.

Determining what level of pretreatment of indirect discharges may be necessary to achieve those 

twin goals is not necessarily the same as simply determining the level of treatment required for 

direct discharges and requiring that same level of pretreatment for indirect discharges. To this 

end, Noble suggests that EPA identify the potential contaminants of concern that may pass 

through or interfere with POTW operations and establish numerical or technology-based 

standards for those potential contaminants. Noble is happy to take part in discussions with EPA 

to identify potential contaminants and available water treatment technologies.

16 Id. at 18560.

Response 1-A

The United States Environmental Protection Agency (EPA) disagrees with the commenter’s 

suggestion that its approach to establishing pretreatment standards to ensure that direct and 

indirect dischargers within the same industry are subject to similar levels of treatment is 

inconsistent with the Clean Water Act (CWA). In establishing pretreatment standards, Congress 

specifically intended that indirect dischargers achieve, together with the Publicly-Owned 

Treatment Works (POTW), the same level of pollutant removal as was required of a direct 

discharger. See Natural Resources Defense Council v. EPA, 790 F.2d 289 (3rd Cir. 1986). See 

also CWA sections 301(b)(1)(A); 301(b)(2)(A) and 307.

EPA agrees with the commenter that the Clean Water Act requires pretreatment standards to 

ensure that wastewater discharged to a POTW will not “pass through” or “interfere” with the 

operations of the POTW. The statute directs the EPA to promulgate pretreatment standards for 

pollutants which “are determined to” pass through and does not specify a method by which EPA 

is required to make that determination. Chemical Manufacturers Ass’n v. EPA,870 F.2d 177 (5th
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

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Cir. 1989) (upholding EPA’s methodology for determining pass through). EPA generally

determines that a pollutant “passes through” POTWs when the median percentage removed by 

well-operated POTWs is less than the median percentage removed by direct dischargers 

complying with effluent limitations based on Best Practicable Control Technology (BPT)/Best 

Available Technology (BAT)/Best Available Demonstrated Control Technology (BADCT). In 

this manner, EPA endeavors to ensure that the combined treatment at indirect discharging 

facilities and POTWs is equivalent to that obtained by direct dischargers applying 

BPT/BAT/BADCT technology, as Congress intended. 

EPA notes that it did not – as the commenter suggests – simply apply the direct discharger 

requirements to indirect dischargers. Rather, EPA first conducted a pass through analysis to 

determine whether pretreatment standards were appropriate. For those wastestreams regulated 

with a zero discharge limitation or standard, as is the case here for direct dischargers, EPA 

typically sets the percentage removed by the technology basis at 100 percent for all pollutants. If

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, the record establishes that direct dischargers, subject to zero discharge requirements 

based on BPT, achieve greater removals of Total Dissolved Solids (TDS) and other 

unconventional oil and gas (UOG) pollutants than well-operated POTWs. See Response 1-M for 

a detailed discussion of EPA’s analysis of POTW removals of UOG pollutants. Based on this

analysis, EPA concluded that UOG pollutants pass through as that term is used in these sections 

of the CWA (301, 304, 307(b), 306). 

Once EPA concluded that there was pass through using the methodology described above, EPA 

considered the appropriate technology-based factors to establish limits based on Pretreatment 

Standards for Existing Sources (PSES) and Pretreatment Standards for New Sources (PSNS).

Categorical pretreatment standards for existing sources are technology-based and are analogous 

to BPT and BAT effluent limitations guidelines, and thus EPA typically considers the same 

factors in promulgating PSES as it considers in promulgating BPT/BAT. See Natural Resources 

Defense Council v. EPA, 790 F.2d 289, 294 (3rd Cir. 1986); Chemical Manufacturers’ Ass’n v. 

EPA, 870 F.2d 177 (5th Cir. 1989). Similarly, in establishing pretreatment standards for new 

sources, EPA typically considers the same factors in promulgating pretreatment standards for 

new sources (PSNS) as it considers in promulgating new source performance standards (NSPS), 

which is based on BADCT. EPA considered these technology-based factors, including the 

availability of zero-discharge technologies and the economic achievability (for BAT) and cost of 

achieving such effluent reduction (for BADCT) of these technologies for indirect dischargers, in 

establishing the zero-discharge based pretreatment standards in this final rule.

Comments

EPA-HQ-OW-2014-0598-0953 (API pg 2)

The proposed rule further fails to recognize the differences between direct discharge prohibitions 

under National Pollutant Discharge Elimination System (NPDES) and indirect discharge under 

the pretreatment program. 

Response 1-B
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

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EPA disagrees with the commenter’s assertion that the rule fails to recognize the differences 

between direct discharge prohibitions under the National Pollutant Discharge Elimination 

System (NPDES) program and indirect discharge under the pretreatment program. As discussed 

in Response 1-A, EPA recognizes the different requirements that apply to direct verses indirect 

dischargers, and did not simply apply the direct discharge prohibition to indirect dischargers. 

Rather, EPA followed the CWA requirements with respect to determining pass through or 

interference in order to assess the need for pretreatment standards for indirect dischargers, and 

considered the appropriate technology-based factors in establishing the pretreatment standards in 

this final rule.

Comments

EPA-HQ-OW-2014-0598-0953 (API pg 34)

the proposed rule includes only a cursory conclusion that zero discharge is feasible because it is 

practiced by UOG extraction facilities in most regions and, therefore, any treatment that is less 

than 100% effective need not be considered. This interpretation ignores the distinctions that 

Congress placed between the direct discharge NPDES program and the pretreatment program. 

The goal of the latter is also the introduction of pollution to waters of the United States, but the 

goal is to “ensure that the combined treatment at indirect discharging facilities and POTWs is at 

least equivalent to that obtained by a direct discharger, while considering the treatment capability 

of the POTW.”107

EPA overlooks the distinctions between the NPDES and pretreatment programs it elsewhere 

recognizes with the suggestion that facilities that can feasibly avoid directly discharging to 

waters of the United States must receive pretreatment bans.

107 79 Fed. Reg. at 63,268 (Oct. 22, 2014).

Response 1-C

EPA disagrees that it ignored the distinctions between requirements for direct and indirect 

discharges. To the contrary, EPA’s pretreatment standard specifically meets Congress’ objective 

of ensuring that the pollutant removals by the combination of indirect dischargers and POTWs is 

equivalent to that of direct dischargers – which achieve removals of 100% through zero 

discharge requirements. EPA did in fact consider the capability of POTWs to remove such 

pollutants – but EPA does not have a record basis to support that POTWs can routinely treat all 

of the pollutants common in UOG wastewater, and certainly none that would achieve removals 

of 100%. See Response 1-M (pointing to data in the Technical Development Document for the 

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

Category (TDD) indicating that the percent removal of pollutants in UOG wastewater by 

POTWs is less than the percent removal by zero discharging technologies). Thus, lacking data to 

suggest POTW capability to remove all pollutants in UOG wastewater, EPA established zero 

discharge requirements for indirect dischargers in order to meet Congress’ objective of ensuring 

pollutant removals at least equivalent to that obtained by direct dischargers.

EPA disagrees with the commenter’s terminology indicating that EPA found zero discharge to be 

“feasible.” The statutory factors EPA considers to establish pretreatment standards based on 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

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BPT, BAT and BADCT are laid out in the statute, and explained in the preamble to the final rule. 

With respect to BAT, the statute requires that the technology be both available and economically 

achievable – but does not refer to technological or economic “feasibility.”

Accordingly, in establishing pretreatment standards for existing sources (PSES) based on BAT, 

EPA specifically considered whether a zero discharge requirement for existing sources would be 

technologically available and economically achievable – and reasonably concluded that it was. 

Similarly, with respect to new sources, EPA determined that the rule would not present a barrier 

to entry, based on information in the record indicating that new sources would manage their 

wastewater following current industry practice and that costs by new sources would be the same 

as those faced by existing sources. EPA disagrees with the commenter’s characterization of this 

conclusion as “cursory.” EPA reasonably considered the fact that UOG extraction facilities are 

currently meeting zero discharge requirements through practices such as reuse/recycling of 

wastewater, underground injection control (UIC) disposal, and management by centralized waste 

treatment (CWT) facilities – thus evidencing that such wastewater management alternatives are 

in fact widely available and economically achievable. EPA also looked at future availability of 

UIC disposal, based on comments suggesting that such availability may be limited – but did not 

have any data to demonstrate (nor did commenters provide any data to demonstrate) that this 

current management option will not be available in the future (See Chapter D of the TDD). Thus, 

EPA fully considered the availability of zero discharge technology options, as well as the 

economic achievability of these options for existing sources and the costs for new sources, in 

establishing the pretreatment standards in this final rule. 

Comments

EPA-HQ-OW-2014-0598-0953 (API pg 34)

After EPA completes the pass-through analysis to demonstrate that categorical pretreatment 

standards are necessary, they must then identify a pretreatment technology that is both 

technologically and economically feasible. The proposed rule’s technological feasibility analysis; 

however, eliminated the distinctions between the goals and requirements applicable to direct 

dischargers versus indirect dischargers

Response 1-D

EPA disagrees with the commenter’s use of the terminology “technologically and economically 

feasible” in characterizing the analytical steps required to establish pretreatment standards. See

Response 1-C. EPA also disagrees that it eliminated the distinction between the goals and 

requirements applicable to direct verses indirect dischargers – see Response 1-A and Response 

1-C. 

Comments
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

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EPA-HQ-OW-2014-0598-0953 (API pg 41)

As proposed, the pretreatment ELGs for UOG wells are impermissible under the CWA and its 

implementing regulations. EPA either ignored or overlooked mandatory prerequisites to 

promulgating pretreatment standards, and instead opted for a pretreatment ban than conflicts 

with the CWA.

Response 1-E

EPA disagrees that it ignored or overlooked mandatory prerequisites to promulgating 

pretreatment standards, for the reasons discussed in Response 1-A.

EPA also disagrees that the rule conflicts with the CWA. EPA is setting the pretreatment 

requirements at a level that is consistent with that applicable to direct dischargers, per Congress’ 

intent, and at a level that is both technologically available and economically achievable (for 

BAT) and does not present a barrier to entry for new sources (for BADCT) based on current 

practice within the industry. To the extent that the commenter is arguing that the technology 

bases for the zero discharge requirements do not constitute “treatment,” EPA notes that there is 

nothing in the CWA that limits candidate technology options to those that treat pollutants in the 

wastewater and allow discharge. Zero discharge is a permissible option under the Clean Water 

Act. In establishing pretreatment standards, EPA thus reasonably considers other available 

technology options, such as underground injection in disposal wells, recycle, and reuse, that 

would limit the wastewater pollutants sent to POTWs. See, e.g., Coastal Oil and Gas Effluent 

Limitations Guidelines, 61 Fed. Reg. 66085, 66097 (December 16, 1996) (considering 

underground injection in disposal wells as a technology basis for setting zero discharge 

limitations); Pesticide Chemicals Effluent Limitations Guidelines, 61 Federal Register 57529 

(November 6, 1996) (basing zero discharge pretreatment standard on pollution prevention, 

recycle and reuse practices, treatment for reuse, and off-site incineration). Moreover, both the 

BAT level of control applicable to existing sources and the BADCT level of control applicable to 

new sources envision reasonable further progress toward the national goal of eliminating the 

discharge of all pollutants. See CWA Section 101(a)(1). For existing sources, such effluent 

limitations “shall require the elimination of discharge of all pollutants” where the Administrator 

finds that such elimination is technologically available and economically achievable for a 

category or class in accordance with section 304(b) (CWA section 301(b)(2)(A)). For new 

sources, the standard of performance shall include where practicable, a “standard permitting no 

discharge of pollutants.” (CWA section 306(a)(1).

Comments

EPA-HQ-OW-2014-0598-0951 (IPAA pg 3)

In part, EPA argues that its decision is based on the pattern that “Generally, EPA designs 

nationally applicable pretreatment standards for categories of industry (also referred to as 

categorical pretreatment standards) to ensure that wastewaters from direct and indirect industrial 

dischargers are subject to similar levels of treatment.” It bases this statement on language in the 

Conference Report on the 1977 Clean Water Act, stating: 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

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The legislative history of the 1977 CWA amendments explains that pretreatment standards are 

technology-based and analogous to BAT effluent limitations for the removal of toxic pollutants. 

As further explained in the 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. 

A careful reading of the statutory language in the CWA suggests that the language has a different 

purpose. The operative clause of the CWA Section reads: 

If, in the case of any toxic pollutant under subsection (a) of this section introduced by a source 

into a publicly owned treatment works, the treatment by such works removes all or any part of 

such toxic pollutant and the discharge from such works does not violate that effluent limitation 

or standard which would be applicable to such toxic pollutant if it were discharged by such 

source other than through a publicly owned treatment works, and does not prevent sludge use or 

disposal by such works in accordance with section 1345 of this title, then the pretreatment 

requirements for the sources actually discharging such toxic pollutant into such publicly owned 

treatment works may be revised by the owner or operator of such works to reflect the removal of 

such toxic pollutant by such works. 

A plain reading of this statutory language is a directive to EPA that pretreatment requirements 

could be relaxed if the POTW were removing pollutants that were also being limited under the 

pretreatment ELG. In this context the Conference Report language could be read as an 

admonishment to EPA that it should not require excessive treatment when it is unnecessary. 

Response 1-F

EPA agrees that pollutant removals by POTWs are to be considered in establishing pretreatment 

standards for indirect dischargers. As explained in the preamble to the final rule, EPA considered 

POTW pollutant removals in conducting a pass through analysis to determine whether 

pretreatment standards were appropriate. See Response 1-M.

With respect to the Legislative History that the commenter references, EPA notes that the final 

rule is in fact consistent with the language therein indicating that “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.” Here, as explained in

Response 1-A above, if the industrial source were making a direct discharge, it would be 

required to meet zero discharge; and thus, under the final rule, the level of treatment required by 

the combination of pretreatment and treatment by POTWs is also zero discharge. Because EPA 

does not have a record basis to support that POTWs can routinely remove pollutants in UOG 

wastewater to the same degree as zero discharge technologies, EPA established a zero pollutant 

discharge requirement for all indirect dischargers. However, to the extent that POTWs are or 

become capable of removing pollutants in UOG wastewater, indirect dischargers may be able to 

obtain removal credits for such POTW pollutant removals. (40 CFR 403.7). Removal credits are 

like a variance or alternative limit for an industrial user from the categorical pretreatment 

standard such as this one that reflects that POTW’s removal of a pollutant. 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

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Comments

EPA-HQ-OW-2014-0598-0953 (API pg 35)

As the name implies, the CWA’s pretreatment program was designed to regulate pretreatment 

and to drive technological advancements in pretreatment. It was not designed to ban 

pretreatment. The proposed rule is not based on the required evaluation of “wastewater treatment 

options,” it is based on identification of “alternatives to discharge.” In fact, a subset of UOG 

waters exist (low TDS waters in the Devonian, Dakota, Eagle Ford, and Utica for example) that 

could be treated using conventional wastewater pre-treatment processes to remove/reduce 

specific organic and/or inorganic pollutants to levels consistent with other POTW influents.

As noted throughout this letter, EPA failed to complete the required technical and/or economic 

evaluation and propose limits based on available treatment options – even though such 

evaluation is clearly warranted for the subset of low-TDS waters within the UOG category as 

defined in the Proposed Rule.

The proposed rule’s attempt to reshape the CWA and its implementing regulations is 

conspicuous when the consequences of EPA’s interpretation are examined in these broader 

circumstances. The proposed rule’s attempt to turn the pretreatment program away from 

treatment is arbitrary, capricious, and not in accordance with the CWA.

Response 1-G

EPA disagrees with the commenter’s assertion that only “treatment options” can be considered in 

establishing pretreatment standards, for the reasons discussed in Response 1-E. Under the Clean 

Water Act, zero discharge is a permissible option to consider in setting effluent limitations 

guidelines and standards (ELGs), including pretreatment standards. 

With respect to the comment regarding available treatment technologies for certain low-TDS 

waters, EPA notes that we did in fact consider these technologies (see DCN SGE01186) – but 

reasonably concluded that these technologies were not “best” available technology, or “best” 

available demonstrated control technology, as they would result in lower pollutant removals than 

the 100% removals achieved through the zero discharge technology bases underlying the final 

rule and are technologically available, economically achievable (for BAT) and do not present a 

barrier to entry for new sources (for BADCT). 

Comments

EPA-HQ-OW-2014-0598-0953 (API pg 17)

Importantly, while the BAT analysis and the PSES analysis are indeed analogous, they are not 

identical. The factors under which “achievability” is evaluated remain the same, but the goal to 

be achieved is different. As noted above, the BAT analysis measures the achievability of “further 

progress toward the national goal of eliminating the discharge of all pollutants.” Effluent that is 

sent to a POTW, however, is not discharged.61 The goal to be achieved for the PSES analysis 

therefore comes from the goal identified in the CWA’s Section 307 pretreatment standards – the 

elimination of pass-through and interference. By applying the BAT “achievability” factors to the 

goal Congress set for the pretreatment program, the PSES analysis is properly understood to be 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

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an evaluation of the costs and technological availability of controls needed to lower pollutants in 

effluent to levels that avoid pass-through and interference.

60 See CWA § 301(b)(2)(A).

61 See 40 C.F.R. § 401.11(h), “The term discharge of pollutant(s) means: (1) The addition of any 

pollutant to navigable waters from any point source and (2) any addition of any pollutant to the 

waters of the contiguous zone or the ocean from any point source, other than from a vessel or 

other floating craft. The term “discharge” includes either the discharge of a single pollutant or 

the discharge of multiple pollutants.”

Response 1-H

EPA agrees that the BAT analysis and PSES analysis are not identical. EPA has applied the 

requisite PSES analysis, including an evaluation of the technological availability and economic 

achievability of controls needed to avoid pass through and interference, in establishing the 

pretreatment standards in the final rule. See Response 1-A; Response 1-C.

EPA agrees that the goal cited by the commenter (“further progress towards the national goal of 

eliminating the discharge of all pollutants”) applies specifically to limits based on BAT, under

Section 301(b)(2)(A) of the CWA. However, EPA notes that categorical pretreatment standards 

are analogous to the BAT effluent-limitations guidelines (see Chemical Manufacturers Assn’ v. 

EPA, 870 F.2d 177, 244 (5th Cir. 1989)), and thus would reasonably be subject to similar goals. 

Moreover, CWA section 101(a), which applies to the CWA as a whole, specifically lists as a 

national goal that “the discharge of pollutants into the navigable waters be eliminated...” While 

the commenter correctly notes that effluent sent to a POTW is not directly “discharged,” the 

wastewater from an indirect discharger is ultimately discharged by the POTW. Thus, the zero 

discharge pretreatment standards in this final rule, by eliminating the discharge of pollutants that 

could pass through the POTW untreated furthers the CWA goal of eliminating the discharge of 

pollutants to navigable waters. 

Comments

EPA-HQ-OW-2014-0598-0953 (API pg 17)

And, just as with PSES, the analytical framework under which direct discharging sources are 

evaluated can be applied to indirect discharging sources, but the goals of those programs cannot.

Response 1-I 

See Response 1-H.

Comments

EPA-HQ-OW-2014-0598-0977 (EIP pg 2)

Because PSES are analogous to BPT and BAT, EPA considered the same factors for determining 

PSES of zero discharge. Similarly, EPA considered the same factors in promulgating PSNS 

because NSPS and PSNS are analogous standards. EPA has applied the appropriate control 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

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standards based on the industrial category of UOG facilities and has considered the appropriate 

factors in setting the ELG.

Response 1-J

EPA agrees with the commenter.

Comments

EPA-HQ-OW-2014-0598-0977 (EIP pg 2)

EPA properly considered the factors required by the CWA in proposing the zero-discharge 

limitation for PSES and PSNS for discharge from UOG facilities to POTWs. As explained in the 

Proposed Rule, EPA looked at the availability and cost of the technology in its cost‒benefit 

analysis and determined that there would be no compliance cost or financial benefit to the 

industry because the current industry practice is not to discharge to POTWs.4 Therefore, the 

Proposed Rule will not result in any cost-incurring change to current practice.

Because the Proposed Rule reflects current industry practice, detailed analysis and consideration 

of the other factors like the age of facilities, the process involved, potential process changes, and 

non-water quality impacts are moot because the rule imposes no change from the industry’s 

current practice.

While those in opposition to the Proposed Rule may attempt to argue that EPA did not conduct a 

proper analysis of all of the required factors because it did not address each factor in depth, any 

such argument must fail. While EPA may not ignore any one factor, EPA is not required to 

weigh all factors equally and has considerable discretion in considering these factors for 

determining ELGs.5 EPA’s consideration of the required factors was adequate to establish a 

zero-discharge limitation.

1 33 U.S.C. § 304(b)(2)(B).

2 33 U.S.C. § 306.

3 33 U.S.C. § 307(b), (c).

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

Category, 80 Fed. Reg. 18,557, 18,560 (Apr. 7, 2015) [hereafter Proposed Rule].

5 See Texas Oil & Gas Ass’n v. EPA, 161 F.3d 923, 934 (9th Cir. 1998); BP Exploration & Oil, 

Inc. v. EPA, 66 F.3d 784, 803 (6th Cir. 1995).

Response 1-K

EPA agrees with the commenter that the rule reflects consideration of the requisite statutory 

factors for establishing PSES and PSNS, and that EPA has considerable discretion in considering 

these factors in establishing such requirements. 

Comments
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

15

EPA-HQ-OW-2014-0598-0977 (EIP pg 14)

Proposed Rule Supports Clean Water Act and Safe Drinking Water Act Integration, EPA 

Pollution Prevention Goals, and Drinking Water Source Protection

Integration of the Clean Water Act and Safe Drinking Water Act (SDWA) has been an area of 

increasing interest to diverse stakeholders during the past decade, is part of EPA’s 2010 Drinking 

Water Strategy65 and is embodied in EPA’s Strategic Plan for 2011-2015.66 Our nation’s 

landmark federal water laws can and should work together to achieve the maximum protection of 

public health and pollution reductions. EPA’s Proposed Rule supports this integration by 

preventing discharges of pollutants that could interfere with SDWA compliance at downstream 

Public Water Systems (PWS) and lead to increased public health risk. EPA’s Proposed Rule is 

also consistent with stated pollution prevention policy because it avoids shifting the burden of 

contamination caused by upstream activity onto a downstream user through potential treatment 

costs.67 The Proposed Rule supports the overall goals of the Clean Water Act, ensures that 

drinking water and public health are protected, and maximizes pollution prevention in the Clean 

Water Act’s implementation.

Response 1-L

EPA agrees with the commenter.

Pass Through Analysis

Comments

EPA-HQ-OW-2014-0598-0953 (API pg 19)

EPA Impermissibly Failed to Identify a Level that Protects Against Pass-Through and 

Interference

As noted above, a pass-through analysis that meets the requirements of the CWA and its 

implementing regulations requires EPA to: (1) identify pollutants of concern; (2) evaluate the 

presence and concentration of those pollutants of concern in the industry’s effluent; (3) evaluate 

the likelihood that these pollutants of concern could cause the POTW to exceed its NPDES 

permit limits; and, (4) if pass-through or interference are expected to occur, compare the removal 

capability of the discharging industry to the removal capability of a “well-operated POTW.” 

EPA either impermissibly shorthanded these inquiries or skipped them altogether, as shown 

below in Table 1. This pass-through analysis is essential to determining that categorical 

pretreatment standards covering an entire industry and its associated effluent are necessary.

Table 1: Summarizing Deficiencies in EPA’s Approach to Pass Through and Interference

Essential Prong of Pass Through 

and Interference Analysis

Problematic Aspects of EPA’s Analysis
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

16

(1) identify pollutants of concern EPA’s analysis did not identify any specific pollutants of 

concern, instead determining that the produced water itself 

was the pollutant of concern regardless of its actual 

constituents and their concentrations. This sweeping 

definition oversteps EPA’s statutory authority by effectively 

precluding access to Congressionally mandated removal 

credits and making it impossible for states to implement a 

different, equally stringent standard as allowed per the CWA.

(2) evaluate the presence and 

concentration of those pollutants 

of concern in the industry’s 

effluent

EPA did not identify the presence of pollutants of concern in 

industry’s effluent

EPA’s analysis discussed various types of pollutants found in 

produced water but never characterized the pollutants in the 

produced water.

In fact, EPA’s own analysis revealed that the constituents of 

produced water were far too variable to universally 

characterize.

(3) evaluate the likelihood that 

these pollutants of concern could 

cause the POTW to exceed its 

NPDES permit limits

This was missing from EPA’s analysis because EPA never 

identified the pollutant(s) of concern.

EPA discussed the potential for TDS to pass through a 

POTW but TDS is a bulk parameter - not a pollutant.

EPA was also unable to identify an applicable limit for TDS 

from which it could evaluate pass-through potential

(4) if pass-through or interference 

are expected to occur, compare 

the removal capability of the 

discharging industry to the 

removal capability of a “welloperated POTW.”

EPA began, rather than ended its analysis, with removal 

efficacy in a way that would obviate differences between 

pretreatment standards and the NPDES program.

EPA essentially circumvented the pass-through analysis by 

citing to industry’s ability to meet zero- discharge 

requirements under the NPDES program

In doing so, EPA ignored that its technological comparisons 

must be made between “discharging” industries and POTWs 

“performing secondary treatment” – not to disposal options.

Response 1-M

EPA disagrees with the commenter’s characterization of its analysis of pass-through and 

interference as deficient. EPA will address each of these alleged “deficiencies” in turn.

Failure to identify pollutants of concern

EPA disagrees with the commenter’s assertion that it did not identify pollutants of concern. The 

comment reflects a misunderstanding of the term “Pollutants of Concern” (POC) as used in the 

effluent guidelines program. EPA notes that the term is not in the statute, nor is it a statutory 

requisite, but it is used in the effluent guidelines program to determine which parameters to 

potentially establish limits/standards for in a categorical rule. EPA attempts to control all 

pollutants of concern when it regulates, but sometimes only sets limits/standards for a subset of 

the pollutants. The Clean Water Act section 301(b) directs EPA to eliminate the discharge of all 

pollutants where it is technologically available and economically achievable (after a 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

17

consideration of the factors specified in sections 304(b)/306 of the CWA). The first step for an 

effluent guideline is typically to identify POCs – or the pollutants for which it can or chooses to 

potentially set limits in the rule. Where EPA establishes non-zero numerical limitations, the 

POCs are a subset of all pollutants EPA identifies as present in a particular wastestream. This 

reflects, among other things, that all pollutants may not be present for a wastestream at some 

frequency in amounts that EPA can demonstrate are treatable by the candidate technology basis 

with the available data. However, because in this rule, all pollutants present at any frequency and 

any amounts would be treated by a candidate technology that leads to a zero discharge limitation, 

for this rule all pollutants are pollutants of concern. As such, EPA disagrees that it did not 

identify any pollutants of concern, as EPA in fact determined that all pollutants in the UOG 

extraction wastewater are pollutants of concern. See also preamble to the final rule at Section 

VI.B.3. 

Moreover, EPA notes that – contrary to the commenter’s assertion – EPA did in fact identify 

specific constituents in UOG wastewater that presented particular concerns with respect to passthrough or interference. In the preamble, EPA specifically noted that “TDS and its constituents” 

are “key pollutants” that are “not susceptible to treatment by POTWs.” Preamble Section III.A. 

See also Preamble Section III.A (“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.”)

EPA disagrees that its definition of pollutants of concern effectively precluded consideration of 

POTW removals. As noted below, EPA specifically considered the ability of POTWs to remove 

constituents of TDS and other pollutants in UOG wastewater – and found that POTWs are not 

designed to do so. See Subheading below, Failure to compare the removal capability of the 

discharging industry to the removal capability of a “well-operated POTW.” 

Failure to evaluate presence and concentration of POCs in industry effluent

EPA disagrees with the commenter’s assertion that it failed to evaluate the presence and 

concentration of POCs in industry effluent. EPA did in fact identify the presence of TDS 

constituents and other pollutants of concern in industry’s effluent, as reflected by the sampling 

data EPA compiled and presented in the TDD (see TDD Chapter C). 

To the extent that the commenter’s concern is that the sampling data was too limited or too 

variable to allow for a sufficient characterization of pollutants in UOG wastewater, EPA notes 

that it is not required to have perfect information for all facilities in the industrial category in 

order to act. See Texas Oil and Gas Ass’n v. EPA, 161 F.3d 923, 934 (5th Cir. 1998) (rejecting 

industry argument that lack of survey data on older wells rendered EPA’s offshore oil and gas 

regulations arbitrary and capricious). Here, the sampling data was sufficient for purposes of 

characterizing the pollutants in the wastewater for purposes of EPA’s pass through analysis –

which, as described above, compares percentage removals of such pollutants by indirect 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

18

dischargers and POTWs to percentage removals by direct dischargers subject to effluent 

limitations based on BPT/BAT/BADCT. The sampling data allowed EPA to sufficiently 

characterize what these pollutants were – in order to be able to consider whether these pollutants 

would be removed by indirect dischargers and POTWs to a level commensurate with the 100% 

removals required by the BPT limits for direct dischargers. 

Failure to evaluate the likelihood that POCs would cause the POTW to exceed its NPDES permit 

limits

The commenter’s concern appears to stem from the mistaken belief that EPA is required to 

assess pass-through on an individual basis – i.e. an evaluation of the likelihood that an indirect 

discharge would cause an individual POTW to violate its NPDES permit limits. However, this 

definition of pass through is required in the general pretreatment regulations at 40 CFR 403.3

applicable generally to indirect dischargers, and no such individual, localized analysis is required 

for purposes of setting categorical pretreatment standards under the CWA. Rather, “[t]he statute 

itself simply directs the EPA to promulgate pretreatment standards for pollutants ‘which are 

determined’ to pass through and does not specify a method by which the EPA is required to 

make that determination.’ Chemical Manufacturer’s Ass’n v. EPA, 870 F.2d 177, 244 (5th Cir. 

1989). For the purpose of determining whether to promulgate national category-wide 

pretreatment standards, EPA generally determines that there is pass through of a pollutant and 

thus a need for categorical standards if the percentage of a pollutant removed by a well-operated 

POTW achieving secondary treatment is less than the percent removed by the 

BPT/BAT/BADCT technology basis for direct dischargers in the industrial category. In the 

Chemical Manufacturer’s Ass’n case, the Court of Appeals recognized EPA’s BAT comparison 

approach for assessing pass through for assessing the need for categorical pretreatment 

standards, and in fact rejected the industry petitioner’s argument that EPA was required to 

consider the actual performance of particular POTWs. Thus, EPA is not required to demonstrate 

that the POCs would cause POTWs to exceed their individual NPDES permit limits for purposes 

of this analysis.

Failure to compare the removal capability of the discharging industry to the removal capability 

of a “well-operated POTW.”

EPA disagrees with the commenter’s assertion that EPA’s comparison of removal capability was 

flawed. The commenter’s concern appears to be two-fold: first, that EPA failed to compare the 

removal capability of the “discharging industry” to a POTW; and second, that EPA failed to 

compare to a POTW performing secondary treatment. EPA will address these in turn.

With respect to the first concern, the commenter mischaracterizes EPA’s pass through test as 

requiring comparison of POTW removal capacity with that of the “discharging industries.” 

Rather, EPA determines that there is pass-through of a pollutant if the percent removed by welloperated POTWs is less than the percent removed by direct dischargers complying with effluent 

limitations based on BPT/BAT/BADCT. See Preamble to OCSPF ELGs, 52 Fed. Reg. 42525 

(Nov. 5, 1987) (“EPA generally determines that there is pass through of a pollutant and thus a 

need for categorical pretreatment standards if the nation-wide average percentage of a pollutant 

removed by well-operated POTWs achieving secondary treatment is less than the percent 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

19

removed by the BAT model treatment system”) (emphasis added); Chemical Manufacturers’ 

Ass’n v. EPA, 870 F.2d 177, 245 (5th Cir. 1989) (providing judicial approval of this pass through 

analysis used in OCPSF pretreatment standards rule). Thus, contrary to the commenter’s

characterization, the appropriate comparison is not to “discharging industries” – but to the 

percent removals achieved by the technology basis used for direct dischargers in the industrial 

category. Where the technology basis for direct dischargers achieves removal at some abovezero level, then EPA would compare the removal capability of “discharging industries” 

achieving that above-zero level to that achieved by well-operated POTWs. But where, as here, 

the technology-based limits for direct dischargers require zero discharge, and thus, there are no 

“discharging industries,” EPA would appropriately compare the 100% removals achieved by the 

technology basis for direct dischargers to the removals achieved by well-operated POTWs.

With respect to the commenter’s second concern, EPA notes that it did in fact compare removals 

achieved by the technology basis for direct dischargers to that of POTW’s performing secondary 

treatment for UOG wastewater pollutants for which it has POTW percent removal data. As 

shown in Table D-9 in the TDD, the median percent removal of pollutants by POTWs is less 

than zero discharging technologies. No commenters provided data for POTW percent removals 

indicating otherwise. In addition, as explained in the TDD, “secondary treatment technologies 

are not designed to remove the TDS, radioactive constituents, metals, chlorides, sulfates, and 

other dissolved inorganic constituents found in UOG extraction wastewater.” See TDD Chapter 

D (Section D.5.3). EPA also examined removals by tertiary treatment, used at some POTWs, and 

similarly found that tertiary treatment technologies are not designed to remove such pollutants. 

While some organic pollutants may be removed by secondary treatment, data available to EPA 

indicate that POTWs do not achieve 100% removal of such pollutants. The TDD explains in 

detail the information that EPA considered in assessing the effectiveness of secondary treatment 

technologies to remove UOG pollutants, including consideration of 

 Local limit evaluations completed by POTWs’ pretreatment program coordinators

 Technical evaluations of the impact of oil and gas wastewater pollutants on POTW unit 

processes completed in response to Administrative Orders (AOs) issued to a number of 

POTWs by the Pennsylvania Department of Environmental Protection (PA DEP)

 Pass through analyses completed by POTWs

 Available data on POTW percent removals

 Discharge Monitoring Report (DMR) data from times when POTWs accepted UOG 

extraction wastewater

Thus, as evidenced by EPA’s pass through analysis described in the final preamble, and related 

information in the TDD, the commenter’s assertion that EPA failed to consider removals of UOG 

pollutants through secondary treatment by POTWs is inaccurate. Rather, EPA specifically found 

that POTWs cannot achieve pollutant removals equivalent to zero discharge technologies; and 

thus, that removals by the BPT technology basis for direct dischargers (100%) would be greater 

than that of well-operated POTWs, and thus, that there was pass-through. 

Comments
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

20

EPA-HQ-OW-2014-0598-0953 (API pg 20)

EPA effectively reversed the required analysis, allowing the removal efficacy to drive the 

determination of what pollutants can and should be removed by an industry for pretreatment 

purposes – thus attempting to eliminate any need to examine whether there are any pollutants 

that may adversely impact water quality or whether those pollutants would cause pass-through or 

interference. This reverse approach is problematic for stakeholders and the Agency because it 

would eliminate any differences between the NPDES direct discharge and the pretreatment 

program – any direct discharge limit could be used as the pretreatment limit regardless of 

whether it was necessary, protective, or whether the POTW was perfectly capable of removing it.

Response 1-N

EPA disagrees with the commenter’s characterization of its pass through analysis. EPA did in 

fact examine whether pollutants in the UOG wastewater would cause pass through or 

interference. See Response 1-A; Response 1-M.

EPA also disagrees with the commenter’s assertion that under EPA’s analysis, “any direct 

discharge limit could be used as the pretreatment limit.” Rather, EPA would need to first 

demonstrate that the pollutants would cause pass through (based on a showing that the pollutant 

removals by a well-operated POTW was less than that of the technology basis for direct 

dischargers) or interference; and then, that the direct discharge limit was both technologically 

available and economically achievable (for BAT) and would not present a barrier to entry for 

new sources (for BADCT) for indirect dischargers in the industrial category.

EPA also disagrees with the commenter’s view that EPA must examine whether UOG pollutants 

would adversely impact water quality in establishing pretreatment standards. Unlike water 

quality based effluent limits based on section 301(b)(1)(C) of the CWA, which are set at levels 

necessary to meet state water quality standards, technology based effluent limitations guidelines 

set a minimum floor based on the level of pollutant reductions achievable by specified levels of 

technology under the CWA. See American Petroleum Inst. v. EPA, 661 F.2d 340, 344 (5th Cir. 

1981) (“Section 301 [of the CWA], in a radical departure from earlier Acts, goes further, to 

establish ‘technology-based limitations.’ These limitations require industry, regardless of a 

discharge’s effects on water quality, to employ defined levels of technology to meet effluent 

limitations.”) (emphasis added). See also American Frozen Food Inst. v. Train, 539 F.2d 107,121 

(D.C. Cir. 1976)(The determination of BPT is not to be based upon the quality of the receiving 

waters.); Assn of Pacific Fisheries v. EPA, 615 F.2d 794 (9th Cir. 1980)(EPA is not supposed to 

demonstrate the incremental effect on receiving water quality); Consolidated Coal Co. v. Costle, 

604 F.2d 239, 245 (4th Cir. 1979)(Receiving water quality is not a basis for setting BPT effluent 

limitations; Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1028, 1042 (D.C. Cir. 1978)( “The use 

of receiving water as a waste treatment system is unacceptable,” regardless of the measurable 

impact of the waste on the boy of water in question.” citing the Legislative History of the Water 

Pollution Control Act Amendments of 1972, 93 Cong. 1st Sess. at 1425.(Comm Print 1973)). 

Comments
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

21

EPA-HQ-OW-2014-0598-0953 (API pg 32)

The proposed rule’s characterization of the pass-through analysis differs from EPA’s previous 

characterization of its pass-through analysis in two significant respects. First, in previous 

analyses, EPA compared the removal efficacy of the POTW to the removal efficacy of 

“discharging” industries.98 Second, the “well-operated POTW” to which the “discharging 

industry” is compared must be “performing secondary treatment.”99

These seemingly small modifications to the pass-through analysis are tremendously meaningful, 

because they reveal that the pass-through analysis is an inquiry into how an industry’s 

pretreatment technology would work in conjunction with a POTW providing secondary 

treatment to industry. Stated more simply, the pass-through analysis is an inquiry into whether a 

pretreatment standard is necessary. If the POTW’s efficacy is superior to the industry’s 

pretreatment, then no pretreatment standard is necessary. If industry’s pretreatment technology is 

superior, then the industry should pretreat its wastewater before sending it to the POTW.

The proposed rule’s omission of the phrases “discharging industry” and “performing secondary 

treatment” from the pass-through analysis changed the test. EPA then used that change to 

compare disposal (not a treatment or a discharge), to POTWs receiving raw UOG extraction 

wastewater (not pretreated UOG extraction wastewater requiring secondary treatment). Whereas 

the traditional pass-through analysis is used to determine whether, and to what extent, to require 

an industry to pretreat its effluent before it goes to a POTW, the proposed rule’s new passthrough analysis was designed to ban pretreatment.

98 74 Fed. Reg. 68,599 (Dec. 28, 2009). See also 

http://water.epa.gov/scitech/wastetech/guide/304m/upload/Preliminary-2012-EffluentGuidelines-Program-Plan.pdf

99 67 Fed. Reg. at 64,225 (Oct. 17, 2002).

Response 1-O

EPA disagrees with the commenter’s characterization of its pass-through analysis. See EPA’s 

Response 1-M.

Comments

EPA-HQ-OW-2014-0598-0953 (API pg 33)

The proposed rule’s pass-through analysis was also deficient in several other significant respects. 

Again, to reiterate the points discussed above, EPA’s failure to identify a pollutant/pollutants of 

concern is impermissible and problematic for a number of reasons. The absence of any 

identifiable “pollutant of concern” makes impossible any comparison of the removal efficacy of 

pretreating industries and “well-operated” POTWs performing secondary treatment.

If UOG extraction wastewater is itself the pollutant (which it is not, even under the CWA’s 

capacious definition of pollutants), then both UIC disposal and POTWs are 100% effective 

because UOG extraction wastewater ceases to be UOG extraction wastewater when it exits a

POTW – it is POTW effluent.
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

22

If EPA is truly suggesting that the “pollutants of concern” to be “all pollutants in UOG extraction 

wastewater,” regardless of the amount or whether they have even been identified by EPA, how 

can the proposed rule conclude that POTWs are less effective at removing “all pollutants” than 

any other treatment technology – or even UIC disposal?

This remains an open question because, even though EPA identified “all pollutants” as the 

“pollutant of concern,” for the pass-through analysis, the only specific pollutant it examined was 

TDS, which it determined would pass-through POTWs because “secondary treatment 

technologies are generally understood to be ineffective at removing TDS.”100

TDS, however, is not a pollutant - it is a “non-conventional bulk parameter”101 While EPA has 

indicator parameters as surrogates for pollutants of concern,102 in the proposed rule EPA never 

identified pollutants of concern in TDS. In Virginia Dep’t of Transportation v. EPA, the court 

invalidated regulation of surrogates for recognized pollutants, and in that case EPA had 

identified the pollutant in need of the proxy.103

In circumstances similar to those here, “EPA excluded many non-conventional parameters such 

as total dissolved solids (TDS because it is more appropriate to target specific compounds of 

interest rather than a parameter which measures a variety of pollutants for this industry. The 

specific pollutants which comprise the bulk parameter may or may not be of concern to 

EPA.”104 That UOG extraction facilities are subject to a zero direct discharge requirement does 

not change this rationale or obviate the judicially-recognized need to regulate pollutants through 

pollutant specific analysis. 

Response 1-P 

EPA disagrees with the commenter’s assertion that it failed to identify a pollutant of concern. 

See EPA’s Response 1-M. 

Contrary to the commenter’s characterization, EPA did not define “UOG extraction wastewater” 

as the pollutant of concern – but rather, defined pollutants of concern as “all pollutants in UOG 

extraction wastewater.” As explained in EPA’s Response 1-M above, pollutants of concern 

represent the universe of pollutants for which EPA can or chooses to potentially set limits in a 

particular effluent guideline or pretreatment standard. Where, as here, all pollutants present at 

any frequency and any amounts would be treated by a BPT/BAT/BADCT technology basis that 

leads to a zero discharge limitation, all pollutants in the wastewater are pollutants of concern. 

With respect to the commenter’s argument that POTWs are 100% effective in removing “UOG 

extraction wastewater” because it is no longer “UOG extraction wastewater” when discharged, 

but rather, “POTW effluent,” EPA again notes that the pollutant of concern here is not “UOG 

extraction wastewater,” but rather “all pollutants in UOG extraction wastewater.” The 

commenter has not provided any data or information to suggest that POTWs are effective at 

removing all pollutants in UOG wastewater, such as TDS, radioactive constituents, metals, 

chlorides and sulfates, let alone capable of achieving the 100% removals of such pollutants by 

the BPT technology basis for direct dischargers in this category. See also Response 1-M. EPA 

further notes that to the extent that POTWs are or become capable of removing UOG pollutants, 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

23

indirect dischargers may be able to obtain removal credits for such POTW removals. See

Response 1-F; Response 4-G.

EPA disagrees with the commenter’s suggestion that TDS was somehow not an appropriate 

pollutant to analyze for purposes of the pass-through analysis. First, EPA disagrees with the 

commenter’s assertion that “TDS... is not a pollutant.” The term “pollutant” is broadly defined 

in the CWA to include “industrial waste,” which would encompass TDS that is discharged from 

an industrial process such as unconventional oil and gas extraction. See NRDC v. EPA, 822 F.2d 

104, 109 (D.C. Cir. 1987) (“The term ‘pollutant’ is broadly defined...”); U.S. v. Hamel (noting 

that the definition is set forth in “broad generic terms”). TDS fits easily into this broad definition 

of pollutant under the CWA. TDS is also a collective measurement of its individual constituent 

pollutants. In the case of UOG wastewater, TDS will include a wide range of inorganic and 

organic dissolved constituents that are either present in hydraulic fracturing fluids or drilling 

fluids or present in the formation. This includes pollutants such as sodium and potassium 

chlorides, calcium, magnesium, bromide, fluoride, barium, sulfate, nitrate, nitrite, phosphate and 

strontium (see TDD Chapter C Section 3.2). Thus, TDS is both a pollutant itself, as well as a 

collective measurement of its individual constituent pollutants, and thus EPA appropriately 

analyzed TDS in assessing pass through of pollutants in UOG wastewater. Furthermore, while 

the commenter is correct in stating that EPA has chosen not to regulate a pollutant that falls 

within the overarching category of non-conventional bulk parameters in some effluent guidelines 

that does not prevent EPA from doing so in this effluent guideline. As here, the record clearly 

demonstrates that TDS is of concern. See the final preamble and TDD. Finally, EPA notes it has 

chosen to regulate non-conventional bulk pollutants in other effluent guidelines as well; for 

example chemical oxygen demand (COD) (Airport Deicing; Textile Manufacturing), total 

phosphorus (Phosphorus Manufacturing), and halogenated organic compounds (AOX) (Pulp, 

Paper, and Paperboard).

EPA further notes that the Virginia Department of Transportation case cited by the commenter is 

inapposite. There, a federal district court held that EPA lacked the statutory authority under 

section 303(d) of the CWA to establish a TMDL for a surrogate parameter (stormwater flow

rate) rather than for a pollutant because the section of the statute prescribed that TMDLs be 

established for pollutants. Here, under CWA sections 301, 304, 306, and 307, EPA is not 

regulating “flow” as a pollutant. Instead, EPA is regulating TDS and its constituents (and the 

other key pollutants identified by EPA as being present in the discharge, including radioactive 

elements, metals, chlorides, and sulfates), which are all pollutants under the CWA. 

Comments

EPA-HQ-OW-2014-0598-0953 (API pg 2)

TDS, however, is not a pollutant. TDS is a “non- conventional bulk parameter.” Regulation of a 

parameter requires, at a minimum, some identification of the pollutant for which the parameter is 

serving as a proxy, but the proposed rule provided none. Further, because TDS is a bulk 

parameter and not a pollutant, there is no applicable water quality standard or criteria to which 

pass-through and interference can be evaluated. All of these prerequisites were overlooked as the 

proposed rule simply noted that zero-discharge is 100% effective at removing TDS and any other 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

24

technology must surely be less than 100% effective, thereby allowing TDS to pass-through. The 

CWA and its implementing regulations do not allow such an analysis. Pass-though and 

interference are evaluated through comparison of discharging industries and well-operated 

POTWs performing secondary treatment.

Response 1-Q 

EPA disagrees that TDS is not a pollutant. See Response 1-P. 

To the extent that the commenter is arguing that national 304(a) water quality criteria for a 

particular pollutant is a “prerequisite” to evaluating pass through and interference, or suggesting 

that EPA must evaluate pass through based on a localized analysis of specific exceedances of a 

POTWs water quality based effluent limits (WQBELs), EPA disagrees with this comment. As 

discussed in 

Response 1-N, in establishing technology-based pretreatment standards, EPA is not required to 

consider impacts to water quality. While EPA’s general pretreatment requirements applicable 

generally to indirect dischargers define pass-through in terms of causing a violation of a POTW’s 

NPDES permit limits (40 CFR Part 403.3(p)) and prohibit any indirect discharger from causing 

the POTW to violate its permit, the term “pass through analysis” in the effluent guidelines 

development context refers to a different type of analysis. As explained in EPA’s Response 1-M

above, EPA analyzes pass through for categorical pretreatment standards by comparing the

percentage removal by the technology basis for direct dischargers in the industrial category to the 

median percentage removal by a well-operated POTW using secondary treatment. This analysis 

– which has been judicially recognized – does not require an evaluation of whether the pollutants 

would cause an exceedance of any specific water quality criteria applicable to the pollutants of 

concern at any particular POTW.

Comments

EPA-HQ-OW-2014-0598-0953 (API pg 33)

If EPA finalizes this proposal without significant changes and additional opportunity to comment 

on those changes, that rule would violate the CWA, it’s implementing regulations, and the 

Administrative Procedure Act.

Response 1-R

See EPA’s Response 1-A. 

Comments
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

25

EPA-HQ-OW-2014-0598-0953 (API pg 2)

EPA did not identify any specific pollutants of concern. EPA must also characterize the presence 

of pollutants in the effluent of the industry to be regulated. While the proposed rule discussed 

types of pollutants in produced water, EPA acknowledged the exceptional limitations of its data 

and that pollutant levels in produced water in different basins (and within the same basin) were 

too variable to allow for a single characterization of produced water.

Response 1-S

EPA disagrees with the commenter’s assertion that it failed to identify pollutants of concern or 

that its data was too variable to allow for sufficient characterization of such pollutants in the 

effluent. See EPA’s Response 1-M. 

Comments

EPA-HQ-OW-2014-0598-0953 (API pg 20)

EPA’s Definition of Pollutants of Concern

The proposed rule identified Total Dissolved Solids (TDS), TDS-contributing ions, various 

organic constituents, and radionuclides in its characterization of produced water from UOG,65 

but did not identify any specific pollutants of concern.

Instead, the proposed rule simply declared this step unnecessary:

Since the effectiveness of the technology basis for the proposed standards results in zero 

discharge of all pollutants, it is not appropriate in this proposed rule to further specify the 

pollutants of concern. Rather, as is the case for the existing BPT requirements, the proposed 

PSES/PSNS apply to the discharge of all pollutants in UOG extraction wastewater.66

In other words, EPA does not believe it needs to identify any specific pollutants of concern 

because it concludes that it is not technologically and economically feasible for industry to 

control 100% of any pollutants of concern. Neither the CWA nor its implementing regulations 

permit such circularity. Consistent with the goals of the CWA, EPA must first identify if there 

are any pollutants of concern and, if there are, only then examine the feasibility of removing the 

pollutant of concern.67

65 80 Fed. Reg. at 18,569-70.

66 80 Fed. Reg. at 18,574.

67 Preliminary 2012 Effluent Guidelines Program Plan at 3.1.

Response 1-T

EPA disagrees with the commenter’s use of the term “technologically or economically feasible.” 

See Response 1-C. EPA disagrees with the commenter’s assertion that it failed to identify 

pollutants of concern. See Response 1-M. 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

26

Comments

EPA-HQ-OW-2014-0598-0953 (API pg 21)

In addition to being circular, the proposed rule’s definition of “pollutants of concern” is overinclusive. In defining the pollutants of concern through the undefined phrase “all pollutants in 

UOG extraction wastewater,” the proposal rule would effectively make UOG extraction 

produced water the “pollutant of concern.” With every molecule of UOG produced water 

potentially considered a “pollutant of concern,” EPA assured that disposal would be the only 

option even if POTWs were hypothetically shown to remove 100% of the traditional “pollutants 

of concern.”

Response 1-U

EPA disagrees that its definition of pollutants of concern was over-inclusive. See Response 1-M.

EPA also disagrees that under its definition of “pollutant of concern,” disposal would be the only 

possible option. If in fact, per the commenter’s hypothetical, POTWs were shown to remove 

100% of the pollutants of concern, then EPA would not have found pass-through of pollutants to 

justify establishing a categorical pretreatment standard. Moreover, having found pass-through 

here, EPA did not simply establish disposal as the only option. Rather, EPA analyzed the 

technological availability and economic achievability (for BAT) and cost of effluent reduction 

(for BADCT) of not only disposal but also the other zero discharge technology bases underlying 

the BPT requirements for direct dischargers. Finally, EPA notes that under the pretreatment 

standards in this final rule, disposal is not in fact the only option. Operators can (and currently 

do) meet the zero discharge requirements through reuse and recycling, and sending wastewater to 

CWT facilities. 

Comments

EPA-HQ-OW-2014-0598-0953 (API pg 21)

Evaluation of Pollutants of Concern in the Industry’s Effluent

Despite circumventing the question of “pollutants of concern,” the Technical Development 

Document attempted, but ultimately failed, to characterize the pollutants in UOG wastewater. In 

doing so, EPA and its contractor seemingly recognized what industry has long understood – that 

produced water from UOG extraction varies significantly based on geography, depth, and the 

stage in the life of the well. 

Response 1-V

EPA disagrees that it failed to identify pollutants of concern in UOG wastewater. See EPA’s

Response 1-M. 

Comments
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

27

EPA-HQ-OW-2014-0598-0953 (API pg 26)

Basing the rule on TDS, however, is improper for several reasons, including but not limited to 

the following:

As discussed in Section 2(a)(i) above, EPA did not identify TDS as a pollutant of concern. The 

lack of data on TDS would support EPA not identifying TDS as a pollution of concern. There are 

only 14 TDS samples for drilling wastewater – all of which were taken from a single formation 

(Marcellus). While substantially more samples are available for produced water, 93% of the 

samples are from just two formations (Marcellus and Eagle Ford). Given the high variability of 

TDS and its dissolved constituents, sampling data that is so dominated by only two formations 

undermines any ability to accurately characterize TDS in UOG extraction wastewater. More 

fundamentally, even with a substantially more geographically diverse and robust sampling effort, 

it will likely be impossible to uniformly characterize the TDS level of UOG extraction 

wastewater. And, because the entire CWA-mandated economic and technological feasibility 

analysis rests on some characterization of the pollutant to be controlled, this variability prohibits 

EPA from setting a single nationwide UOG extraction pretreatment ban. As noted by the courts, 

“EPA is authorized – indeed, is required – to account for substantial variations within an existing 

category or subcategory of point sources.”80

80 Texas Oil & Gas Ass’n v. EPA, 161 F. 3d. 923 (5th Cir. 1998).

Response 1-W

EPA disagrees with the commenter’s assertion that its data was too variable to sufficiently 

characterize the effluent. See Response 1-M. See also Response 3-B (describing EPA’s 

characterization data) and Response 3-C (explaining why characterization data was sufficient). 

Moreover, the commenter failed to present any rational basis for subcategorizing the industry 

based on the statutory factors.

Comments

EPA-HQ-OW-2014-0598-0953 (API pg 13)

Perhaps more significantly, because both “pass-through” and “interference” are determined 

relative to some limit on the POTW’s effluent, Categorical Pretreatment Standards are only 

applicable for pollutants for which there is some recognized effluent limits. In other words, 

“pollutants” in a POTW’s influent can only be said to “pass-through” or “interfere” if the 

influent causes the POTW to violate its discharge limit.

Accordingly, Categorical Pretreatment Standards have only ever been based on those specific 

pollutants for which there exists some national water quality criteria. As EPA itself notes, federal 

water quality standards “establish the environmental baselines used for measuring the success of 

CWA programs” and provide “the regulatory basis for establishing water quality- based effluent 

limits (WQBELs) beyond the technology-based levels of treatment required by CWA Sections 

301(b) and 306.”33

The majority of the “pollutants” for which there are established water quality criteria are these 

identified as “toxic” in CWA § 307(a) and 40 C.F.R. § 401.15. EPA has further broken down 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

28

those 65 “toxic” pollutants to 126 “Priority Pollutants” that are both within the “toxic” class 

identified in CWA § 307(a) and for which EPA has published analytical test methods.34

EPA also establishes water quality criteria for non-priority pollutants to protect against potential 

impacts to aquatic life, human health, organoleptic quality (e.g., taste and color), and 

recreation.35 The pretreatment program classifies these “non-priority” pollutants as either 

“conventional” or “nonconventional.”36 Conventional pollutants (e.g., BOD, TSS, oil and

grease) are those POTWs are designed to remove, and therefore pretreatment standards for these 

conventional pollutants are rare.37 “Nonconventional pollutants” are those which are neither 

toxic nor conventional.38 Categorical pretreatment standards for non-conventional pollutants 

have only been promulgated in a handful of industries and again – only where EPA had in place 

some national water quality criteria.39

33 http://water.epa.gov/scitech/swguidance/standards/handbook/chapter01.cfm (accessed 

6/29/15).

34 Introduction to the National Pretreatment Program; US EPA (June 2011).

35 http://water.epa.gov/scitech/swguidance/standards/criteria/current/index.cfm (accessed 

6/29/15).

36 Introduction to the National Pretreatment Program; US EPA (June 2011).

37 Introduction to the National Pretreatment Program; US EPA (June 2011) at 3-4.

38 Introduction to the National Pretreatment Program; US EPA (June 2011) at 3-4.

39 See Appendix C at 

http://water.epa.gov/polwaste/npdes/pretreatment/upload/final_local_limits_appendices.pdf

(accessed 6/29/15).

Response 1-X

This commenter confuses the term “pass through” as used in the general pretreatment 

regulations, with the well-established “pass through methodology” for determining whether 

pretreatment standards are appropriate. To the extent that the commenter is arguing that EPA 

must evaluate pass through based on a localized analysis of specific exceedances of a POTWs 

permit limits, EPA disagrees with this comment. See EPA’s Response 1-M above (explaining 

that EPA’s pass through analysis for categorical pretreatment standards does not require an 

evaluation of whether the pollutants would cause an exceedance of any specific water quality 

criteria applicable to the pollutants of concern at any particular POTW). For these reasons, EPA 

disagrees that national water quality criteria are necessary prerequisites to establishing 

categorical pretreatment standards. See EPA’s Response 1-Q.

Comments

EPA-HQ-OW-2014-0598-0953 (API pg 14)

Pollutants without national water quality criteria are not amenable to Categorical Pretreatment 

Standards because there is no end point from which to measure pass-through and interference 

potential.
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

29

Response 1-Y

EPA disagrees that national water quality criteria are necessary prerequisites to establishing 

categorical pretreatment standards. See Response 1-Q. 

Technology Availability

Comments

EPA-HQ-OW-2014-0598-0951 (IPAA pg 10)

Instead, EPA needs to fully assess a variety of technologies – most of which have been 

developed as a part of the industry recycling and reuse initiatives – to determine their capacity to 

manage waste water in the context of pretreatment. These technologies might include 

sedimentation, filtration, chemical precipitation, dissolved air flotation, biological treatment, 

reverse osmosis (RO), forward osmosis (FO), evaporation (no recovery), evaporation with 

condensation, membrane distillation, and crystallization. Certainly, these technologies produce 

different outcomes and are appropriate for different waste waters. Their costs and their 

effectiveness will differ. But, until EPA evaluates them, no one knows which may constitute 

BATEA for pretreatment. For example, the following table presents some framework of 

technologies that might be considered for recycling and reuse. They may bear on a BATEA 

analysis as well, but EPA needs to make the analysis necessary for such a determination. 

Treatment Technology Max TDS 

Recommended for 

Treatment (ppm) 

Relative 

Cost 

Commercially 

Available 

Reverse Osmosis Membrane 50,000 $ Yes 

Forward Osmosis Membrane 100,000 $$ No 

Evaporation* 200,000 $$ Yes 

Membrane Distillation 280,000 $$ No 

Crystallization 500,000 + $$$$$ Yes 

While EPA may raise questions about whether they are too costly compared to other options, 

ultimately, it is the producer that will have to make an economic decision among the various 

options available. By making no BATEA analysis of technology options, EPA prevents that 

decision from being considered. 

Response 1-Z

To the extent that the commenter is pointing out that these other technologies are 

available to treat UOG wastewater, EPA does not disagree. EPA recognizes that these treatment 

technologies exist, and in fact considered these technologies in assessing BAT/BADCT for 

purposes of establishing the pretreatment standards in the final rule. See TDD Section 3.1.2; and 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

30

Unconventional Oil and Gas (UOG) Extraction Wastewater Treatment Technologies (DCN 

SGE01186).

However, EPA reasonably concluded that these technologies were not “best” within the meaning 

of BAT (Best Available Technology) [Note, this is the same standard as what commenter terms 

“BATEA”] or BADCT (“Best Available Demonstrated Control Technology”) because, although 

they could result in some level of pollutant removal, they would not achieve the 100% pollutant 

removal of the zero discharge technology options that are technologically available, 

economically achievable, and have no incremental and thus no unacceptable non-water quality 

environmental impacts (for BAT), and do not present a barrier to entry for new sources (for 

BADCT). EPA therefore reasonably established BAT and BADCT based on zero discharge. 

Moreover, EPA found that these TDS-removal treatment technologies were likely more costly 

than the zero discharge technology bases selected as BAT/BADCT. See DCN SGE01186. 

Contrary to the commenter’s suggestion, EPA was not required to further analyze the availability 

or economic achievability of the less effective treatment options, where it had already identified 

a more effective technology basis that met the statutory requirements. 

Comments

EPA-HQ-OW-2014-0598-0951 (IPAA pg 7)

These statements clearly envision a process that assesses technology designed to meet specific 

standards whether they are Best Practicable Technology (BPT) or Best Available Technology 

(BAT) or BADCT. These concepts include analyses of the technologies that can be applied to the 

waste water being addressed, evaluating the reductions achieved and the costs. But, EPA did not 

undertake such a robust analysis in this case. 

Response 1-AA

EPA disagrees with the commenter’s suggestion that EPA failed to undertake a sufficiently 

robust BAT or BADCT analysis in this case. See Response 1-C; Response 1-Z.

Comments

EPA-HQ-OW-2014-0598-0951 (IPAA pg 8)

Looking at each of these reasons separately demonstrates that EPA has not made a plausible 

argument for failing to develop a numerical standard. 

Response 1-BB

EPA disagrees. EPA provides a reasonable explanation in its preamble as to why EPA did not 

establish a non-zero numeric limit for BAT and BADCT in this final rule. See Preamble section 

VI.B (explaining why EPA did not select Option 2, a non-zero numeric limit). 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

31

Comments

EPA-HQ-OW-2014-0598-0951 (IPAA pg 11)

We believe that EPA’s analysis is flawed and fails to realistically undertake its responsibilities 

under the CWA to create ELGs that meet not only current circumstances but future needs as 

well. More specifically, EPA should not rely on a 39 year old ELG to determine the standards 

that should apply to a future environmental management structure that is based on a vastly 

different production outlook. It overstates the capabilities of UIC capacity and reuse 

opportunities to justify its zero discharge management choice. In doing so, EPA avoids making 

the thorough technology analysis it should have made to determine a BATEA pretreatment ELG. 

Response 1-CC

EPA disagrees with the commenter’s assertion that it failed to make the necessary analysis to 

determine BAT [Note: this is the same standard as what commenter terms “BATEA”] or 

BADCT. See Response 1-Z. EPA also disagrees with the commenter’s assertion that EPA relied 

on a “39 year old ELG” (a reference to the existing ELGs for direct dischargers) to determine the 

standards in this final rule. As discussed in EPA’s Response 1-A, EPA did not simply apply the 

existing ELG requirements for direct dischargers to the indirect dischargers covered by this 

rulemaking – but rather, conducted a pass-through analysis to determine whether pretreatment 

standards were appropriate, and then considered the requisite technology-based factors, including 

the availability of zero-discharge technologies and the economic achievability of these 

technologies for indirect dischargers, in establishing the zero discharge pretreatment standards in 

this final rule.

EPA also disagrees with the commenter’s assertion that EPA’s technology-based analysis 

overstates UIC capacity and reuse opportunities. Neither this commenter, nor any other 

commenter, has provided EPA with data to suggest that UIC capacity nationwide will be 

expended and that this current management option will not be available in the future. See 

Preamble section VI.B.I and TDD Chapter D. Further, data suggest that, where UIC wells are 

currently available, this availability will likely continue in the future (see Chapter D of the

TDD). Similarly, neither this commenter, nor any other commenter, has provided EPA with data 

to suggest that opportunities for reuse of UOG wastewater will not be available in the future. In 

fact, as discussed in the Preamble, EPA’s record demonstrates that 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 to reuse in fracturing another well are limited, UOG extraction 

facilities transfer their wastewater to a CWT facility (see Chapter D of the TDD) – another 

available option for meeting the zero discharge requirement. Thus, for these reasons, the 

commenter’s concern that EPA has overstated UIC capacity or opportunities for reuse, or 

otherwise failed to consider future needs, is misplaced. 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

32

Comments

EPA-HQ-OW-2014-0598-0941 (AXPC pg 2)

Ultimately, AXPC requests that EPA withdraw this proposed rule based on the fact that EPA 

failed to follow the requirements of the Clean Water Act in preparing the proposed rule. 

Response 1-DD

EPA disagrees with the commenter’s assertion that it failed to follow the requirements of the 

Clean Water Act in establishing pretreatment standards. See Response 1-A; Response 1-B;

Response 1-C; Response 1-M; Response 1-Z.

Comments

EPA-HQ-OW-2014-0598-0941 (AXPC pg 3)

AXPC believes the proposed rule is the result of a flawed rulemaking process that did not take 

into account key facts and procedures including, but not limited to the following: 

The water management options evaluated by EPA (disposal by deep well injection, reuse/recycle 

in subsequent drilling/hydraulic fracturing, and/or land application) are not wastewater treatment 

for discharge and it is inappropriate in the context of a Clean Water 

Act compliance evaluation to identify these practices as a “treatment technology”. Injection, 

reuse, and/or disposal are not and cannot be used as a method to prepare/treat wastewater for 

discharge. These practices are alternatives to wastewater discharge. They are irrelevant to EPA’s 

obligation to evaluate technologies available for treating wastewater to meet discharge 

limitations and they do not serve as a “technological basis” for the proposed prohibition. 

Technologies do exist for treating a subset of the waters in this industry category, and the Clean 

Water Act obligates EPA through the ELG development program and pre-treatment program to 

evaluate them. 

Response 1-EE

EPA disagrees with the commenter’s view that it is inappropriate to consider options such as 

UIC disposal and reuse/recycling in establishing pretreatment standards under the Clean Water 

Act. There is nothing in the CWA that limits candidate technology options to those that treat 

pollutants in the wastewater. See Response 1-E.

Comments

EPA-HQ-OW-2014-0598-0941 (AXPC pg 3)

Application of the Clean Water Act, and common logic, require that EPA follow a technical and 

economic evaluation process to develop ELGs; and we believe it is clear that an industry-wide 

prohibition requires all of the following: 

Application of risk analysis techniques and identification of the risk-based concentration(s) 

necessary to provide adequate protection of water quality; 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

33

Demonstration that all sources of wastewater within the category contain the pollutant(s) of 

concern at or above the proposed risk-based concentration limit (i.e. when/if sources exist for 

which pollutants of concern are below the limit, there is no justification for an industry-wide 

prohibition); and 

Determination that for all sources of wastewater within the category (considering the full range 

of concentrations determined to be present, not just the high end of the range), there is no 

possibility of treating any of the wastewater to levels below the proposed risk-based limit (i.e. 

when/if sources contain pollutants at concentrations that can be treated, there is no justification 

for an industry-wide prohibition). 

Response 1-FF

EPA disagrees with the commenter’s view that EPA must consider water-quality based factors, 

such as the “risk-based concentration(s) necessary to provide adequate protection of water 

quality,” in establishing pretreatment standards. See

Response 1-N. 

Comments

EPA-HQ-OW-2014-0598-0953 (API pg 1)

the proposed rule was developed without observance with the analytical requirements for the 

development of ELGs and pretreatment standards that are laid out in the Clean Water Act 

(CWA) and its implementing regulations, as well as in numerous categorical pretreatment 

standards that precede the present proposal. Overlooking these statutory and analytical 

requirements is not a matter of harmless error. The result would be the permanent removal of a 

potentially viable produced water management option – use of publicly owned treatment works 

(POTWs) for secondary treatment. While POTWs are not presently used for secondary treatment 

of produced water from the wellsite (initially treated or not), the present situation is both a 

function of an interim ban instituted by EPA in 2011 and a potentially fleeting snapshot of the 

economic and water availability dynamics as they exist in the energy industry today. 

FN: 1 80 Fed. Reg. 18557 (April 7, 2015) (“Proposed Rule”).

Response 1-GG

EPA disagrees with the commenter’s view that EPA did not comply with the CWA’s 

requirements for development of pretreatment standards. See Response 1-A; Response 1-B;

Response 1-C; Response 1-M; Response 1-Z. 

EPA further notes that, contrary to the commenter’s characterization, EPA has not issued any 

“interim ban” on sending UOG wastewater to POTWs. See Response 1-HHH. However, EPA 

recognizes, as discussed in the TDD (Chapter A) that certain states – including Pennsylvania –

have issued regulations or implemented voluntary restrictions limiting the sending of UOG 

wastewater to POTWs, and that such state regulations or voluntary restrictions may have 

contributed to the current industry practice of not sending wastewater to POTWs. Regardless of 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

34

the factors that may have contributed to the current industry practice, the fact remains that UOG 

operators are currently meeting zero-discharge through practices such as UIC disposal, reuse, 

and CWT facilities; and that zero discharge is therefore technologically available, economicallyachievable, and has no incremental non-water-quality environmental impacts, and thus meets 

BAT, and does not present a barrier to entry for new sources (and thus meets BADCT). EPA 

disagrees that the current practice is a “potentially fleeting snapshot,” as the commenter has not 

provided any data to suggest that these non-POTW wastewater management alternatives will not 

be available in the future. See Response 1-CC; Response 1-HHH. 

Comments

EPA-HQ-OW-2014-0598-0953 (API pg 34)

EPA’s interpretation of its analytical mandate under PSES/PSNS would also lead to impractical 

consequences. For example, a facility that sends its UOG extraction wastewater to a CWT or a 

POTW is not discharging to waters of the United States. They are, in fact, zero-discharging 

facilities. Based on the proposed rule’s reasoning, any industry that could feasibly send 

wastewater to a CWT has “available” zero-discharge technologies, and therefore should be 

assigned pretreatment bans, instead of pretreatment standards. Even more strangely, under EPA’s 

reasoning, if a UOG extraction facility sent all if its extraction wastewater to a POTW, it would 

be meeting its zero direct discharge requirements, and the fact that the facility was sending all of 

its UOG extraction wastewater to a POTW would, under this reasoning, justify a finding that the 

facility could feasibly send none of its UOG extraction wastewater to a POTW.

Response 1-HH

EPA agrees with the commenter that a facility that sends its UOG extraction wastewater to a 

CWT facility would be meeting zero-discharge requirements. This is consistent with the 

approach EPA has taken in developing ELGs for various industrial categories. When an 

industrial facility sends it wastewater off-site to a CWT facility, EPA historically considers this 

to meet the definition of zero discharge (and sometimes refers to this as an alternative discharge). 

However, EPA disagrees with the commenter’s characterization of facilities sending UOG 

wastewater to a POTW as “zero-discharging facilities.” Contrary to the commenter’s 

characterization, these facilities are considered to be “indirect dischargers” – defined in EPA’s 

regulations as “a non-domestic discharger introducing pollutants to a publicly owned treatment 

works.” 40 CFR 122.2(emphasis added). See also CWA Section 307 (requiring pretreatment 

standards to prevent the discharge of any pollutant through treatment works...) (emphasis 

added). Thus, unlike industrial facilities that send their wastewater to CWT facilities, industrial

facilities that send their wastewater to POTWs are defined by the statute and regulations as 

indirect dischargers, and thus would not meet the zero discharge requirements under this final 

rule. (Removal credits may be, however, available to such facilities to account for POTW 

removals at the particular facility. 40 C.F.R. §403.7; See Response 4-G).

EPA also disagrees with the commenter’s suggestion that under EPA’s reasoning, “any industry 

that could feasibly send wastewater to a CWT has ‘available’ zero discharge technologies, and 

therefore should be assigned pretreatment bans.” As discussed in Response 1-A above, in 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

35

assessing whether to establish pretreatment standards, EPA first considers whether the discharge 

would result in pass through or interference. If, for example, EPA found that a well-operated 

POTW could achieve the same median percentage removals of the pollutant as direct discharging 

industries complying with BAT limitations, then there would be no pass-through and thus no 

need for a pretreatment standard. Moreover, even if EPA were to determine that a pretreatment 

standard would be appropriate, it would not necessarily establish a zero-discharge requirement 

(or what the commenter terms “a pretreatment ban.”). EPA considers factors other than the 

availability of technology in establishing limits based on BAT, including economic achievability, 

non-water-quality environmental impacts, and “such other factors as the Administrator deems 

appropriate.” Thus, even if EPA found that a CWT disposal option was “available” for the 

particular industry, EPA could decide to establish a pretreatment standard at a level other than 

zero-discharge, based on its consideration of the other statutory factors.

Comments

EPA-HQ-OW-2014-0598-0953 (API pg 38)

disposal through an underground injection well (which cannot be considered treatment for the 

purposes of ELGs

Response 1-II

EPA disagrees with the commenter’s suggestion that EPA cannot consider options such as UIC 

disposal in establishing pretreatment standards under the Clean Water Act. There is nothing in 

the CWA that limits candidate technology options to those that treat pollutants in the wastewater. 

See Response 1-E.

Comments

EPA-HQ-OW-2014-0598-0953 (API pg 3)

For technological feasibility, EPA simply concluded that industry’s ability to meet the NPDES 

program’s zero- discharge standard allowed the Agency to similarly conclude that a pretreatment 

ban was both feasible and necessary. But that is not the case. If it were, any industry that can 

meet zero- discharge either through disposal or by being capable of indirectly discharging would 

automatically receive a pretreatment ban. 

Response 1-JJ

EPA disagrees with the commenter’s suggestion that the zero discharge requirement in this final 

rule was based simply on industry’s ability to meet the existing zero-discharge requirements of 

direct dischargers subject to BPT. As discussed in Response 1-A, EPA first considered whether 

the discharge would result in pass-through or interference, as required by the statute. After 

making a pass-through determination, EPA then considered the factors specified in the statute to 

determine BAT/BADCT. In assessing BAT, EPA appropriately considered the technical and 

economic ability of industry to meet zero discharge requirements – which would result in greater 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

36

removals of pollutants of concern over a numerical limit, and thus EPA reasonably considered to 

be the “best” available technology. See Response 1-Z.

EPA also disagrees with the commenter’s suggestion that under EPA’s analysis, any industry 

that can meet zero-discharge through disposal or indirect discharge would automatically receive 

a “pretreatment ban.” See Response 1-HH.

Comments

EPA-HQ-OW-2014-0598-0953 (API pg 18)

The proposed ELGs as currently written are not supported by sufficient analysis.

EPA’s technological and economic analyses are flawed and in conflict with the CWA, EPA’s 

implementing regulations, and EPA’s analyses in similar contexts. Indeed, in most respects, EPA 

declined to conduct any required analysis because of the misapprehension that industries with 

zero direct discharge requirements can automatically be assigned zero indirect discharge 

requirements. This approach is both unprecedented and in conflict with EPA’s statutory 

requirements.

Response 1-KK

EPA disagrees with the comment that its technological analysis is inconsistent with the CWA, 

implementing regulations, and EPA’s analysis in similar contexts. EPA conducted the analysis 

required by the statute and regulations, as discussed in Response 1-C and Response 1-Z. The 

commenter has failed to specifically explain how EPA’s analysis here is inconsistent with EPA’s 

analysis in similar contexts – other than a passing reference to the CWT ELGs, in which EPA 

chose not to regulate TDS but rather certain specific constituents of TDS. For an explanation of 

why EPA appropriately considered TDS in its pass through analysis here, see Response 1-P. 

EPA also disagrees that its economic analysis is inconsistent with the CWA and regulations, for 

the reasons discussed in Response 1-GGG. EPA also disagrees with the commenter’s 

characterization that EPA automatically applied the zero direct discharge requirements to 

indirect dischargers. See Response 1-CC.

Comments

EPA-HQ-OW-2014-0598-0951 (IPAA pg 3)

EPA Should Not Rely On A 39 Year Old ELG To Determine Future Management Options 

The current direct discharge ELG (40 CFR Part 435 Subpart C – Onshore Subcategory) was 

actually promulgated in 1976 as an interim rule and finalized in 1979. The nature of oil and gas 

extraction is vastly different than it was then. Even then, EPA’s assessment of best practicable 

control technology (BPCT) currently available, best available technology economically 

achievable (BATEA) and new source performance standards was largely superficial. Its support 

documents rapidly discounted all options and focused attention solely on zero discharge 

technologies – UIC and evaporative ponds. 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

37

But the industry in 1976 is not the industry in 2015. In 1976, almost all production occurred in 

conventional formations and much of that production relied on UIC injection to provide for 

secondary recovery in these formations using water flooding. A smaller amount of waste water 

was sent to final disposal in other Class II wells. American oil production had peaked in 1970 

and much of the new production was coming from offshore facilities. EPA’s analysis of the 

industry in its 1976 Development Document for Interim Final Effluent Limitations Guidelines 

and Proposed New Source Performance Standards for the OIL & GAS EXTRACTION Point 

Source Category projected decreasing production by U.S. onshore facilities. It gave little, if any, 

attention to future water management challenges. Ultimately, it embraced UIC management with 

no assessment of future risks. No changes have been made to the direct discharge ELG for the oil 

and gas extraction onshore subcategory since its adoption. 

Response 1-LL

EPA disagrees with the commenter’s assertion that EPA relied on a “39 year old ELG” (a 

reference to the existing ELGs for direct dischargers) to determine the standards in this final rule. 

See Response 1-CC.

To the extent that this comment raises issues regarding the direct discharge effluent limitations, 

such comments are outside the scope of this rulemaking. This rulemaking is focused solely on 

establishing pretreatment standards for indirect dischargers of unconventional oil and gas in the 

onshore subcategory – and not on reopening the existing limitations for direct dischargers in this 

subcategory. Specifically, with respect to the commenter’s suggestion that EPA failed to 

consider implications on future management of this wastewater. See Response 1-C; Response 

1-CC; Response 3-L; Response 3-D.

Comments

EPA-HQ-OW-2014-0598-0951 (IPAA pg 6)

But, rather than actually develop a set of specific pretreatment requirements for those 

circumstances when a POTW option is the only – or most cost effective – one available, EPA 

chose to merely fall back on a 39 year old determination of a zero discharge standard. 

Response 1-MM

EPA disagrees with the commenter’s assertion that EPA merely “fell back on” on a “39 year old 

determination” (a reference to the existing ELGs for direct dischargers) for the zero discharge 

standards in this final rule. See Response 1-LL. Further, EPA fails to understand the scenario 

described by the commenter, in which sending wastewater to a POTW is the “only” option 

available. As discussed in the preamble, EPA has not identified any operators that are currently 

even using this option – let alone relying on it as their “only” option. See final rule preamble at 

Section VI.B.1. To the extent that the commenter is suggesting that POTW disposal could 

become the “only” option available to operators in the future, due to constraints on the future 

availability of zero-discharge wastewater management alternatives used currently, see Response 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

38

1-C and Response 1-CC. To the extent that the commenter is suggesting that POTW disposal is 

more cost-effective than currently-used zero discharge wastewater management alternatives, see 

Response 1-G, explaining why EPA reasonably determined that such zero discharge options 

were “best” within the meaning of the CWA and meets the requisite statutory factors. 

Comments

EPA-HQ-OW-2014-0598-0951 (IPAA pg 6)

Once EPA initiated the process to develop a pretreatment ELG for UOG extraction waste waters 

sent to POTWs, it needs to fully assess the potential implications of its actions on current and 

future management of this waste water. 

Response 1-NN

Contrary to the commenter's suggestion, EPA did in fact fully assess the implications of this 

action on the management of this wastewater, considering the requisite statutory factors in 

establishing zero discharge limitations based on BAT/BADCT. See Response 1-Z. Specifically, 

with respect to the commenter’s suggestion that EPA failed to consider implications on future 

management of this wastewater, see Response 1-C, Response 1-CC, and Response 3-L.

Comments

EPA-HQ-OW-2014-0598-0951 (IPAA pg 8)

it should recognize that relying on a 39 year old ELG as a basis for action raises a strong signal 

that a more analytical approach is necessary. Similarly, if the Agency’s decision to imbed its 

pretreatment ELG in the Onshore Subcategory becomes a barrier to making a more thoughtful 

approach to define a numerical standard because of this general comparability framework, EPA 

should create a new Subcategory that would allow for a result that reflects the future more than 

the past. 

Response 1-OO

EPA disagrees with the commenter’s assertion that EPA relied on a “39 year old ELG” (a 

reference to the existing ELGs for direct dischargers) to determine the standards in this final rule. 

See Response 1-CC.

With respect to the commenter’s suggestion that EPA should have established a numerical 

standard, see Response 1-BB.

With respect to the commenter’s suggestion that the zero discharge requirements fail to reflect 

future capacity issues, see Response 3-D.

Comments
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

39

EPA-HQ-OW-2014-0598-0951 (IPAA pg 8)

EPA should define a numerical, technology based BATEA for managing UOG extraction waste 

waters. Once the BATEA is determined, the issue of whether it is more cost effective than UIC 

will be a determination by the discharger. But, for those instances where UIC is not readily 

available – such as the circumstances that drove Pennsylvania producers to use POTWs – there 

would be an alternative that EPA has determined meets the technology standards of the CWA. 

Response 1-PP

With respect to the commenter’s suggestion that EPA should have established a numerical nonzero standard, see Response 1-BB. EPA recognizes that there may be some situations in which 

UIC is not readily available to a particular discharger, and notes that UIC is not the only 

technology option for meeting the zero discharge requirements. Other management practices are 

available, including recycling and reuse, and transfer to CWT facilities.

Comments

EPA-HQ-OW-2014-0598-0951 (IPAA pg 11)

In doing so, the Agency needs to recognize that such an analysis should be focused on 

technology to treat waste water because, clearly, if UOG extraction waste water is managed 

through a CWT, that decision reflects a choice rejecting the use of UIC Class II injection wells. 

The flawed analysis used in this proposal should not color the assessment that EPA makes in 

evaluating CWT discharges. 

Response 1-QQ

EPA disagrees with the commenter’s suggestion that EPA’s analysis was flawed. See Response 

1-Z. 

EPA notes that the regulation does not specify the manner in which a UOG facility must achieve 

zero discharge of pollutants to POTWs. As discussed in the following comment responses, a 

facility’s wastewater management alternatives may include to send its wastewater to a CWT

facility, injection into a UIC disposal well, or re-use/recycle of the wastewater. See Response 

1-C; Response 1-U; Response 3-D; Response 3-I; Response 3-L; Response 3-T; Response 

3-NNN.

With respect to the comment regarding how EPA should conduct its analysis in its assessment of 

CWT facilities, EPA notes that such comment is outside the scope of this rulemaking.

Comments

EPA-HQ-OW-2014-0598-0951 (IPAA pg 11)

Consequently, we recommend that EPA withdraw the current proposed pretreatment ELG for 

UOG extraction waste water, that it conduct a thorough review of actual waste water 

management technologies, that it determine BATEA and new source performance standards 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

40

based on these technologies, and that it then re-propose an appropriately revised pretreatment 

ELG. 

Response 1-RR

EPA disagrees with the commenter’s recommendation to withdraw the pretreatment standard, 

and the reasons cited in support for such withdrawal. EPA did in fact review “actual waste water 

management technologies” – by which EPA assumes the commenter is referring to treatment 

technologies – and did in fact establish the pretreatment standards based on a consideration of 

these technologies. See Response 1-Z.

Comments

EPA-HQ-OW-2014-0598-0941 (AXPC pg 1)

The O&G ELG Rule could have widespread, detrimental consequences which EPA appears not 

to have considered fully before proceeding with its latest round of regulation making. While 

EPA justifies its promulgation of the rule on the agency’s having “not identified any existing 

onshore [Unconventional Oil and Gas] UOG extraction facilities that currently discharge UOG 

extraction wastewater to [Publicly Owned Treatment Works] POTWs,”1 a current absence of 

discharge is not sufficient justification for establishing a discharge prohibition,

Response 1-SS

EPA disagrees with the commenter’s characterization of the pretreatment standards in this final 

rule as based solely on a “current absence of discharge” to POTWs. See Response 1-JJ. 

EPA also disagrees that the final rule will have widespread, detrimental consequences. EPA fully 

considered the statutory factors for the rulemaking. See Response 1-A; Response 1-B; Response 

1-C; Response 1-M; Response 1-Z.

Comments

EPA-HQ-OW-2014-0598-0841 (BURCH pg 1)

Alternatives ARE available. Injection into deep unground may be reasonable in areas when 

seismic activity is not induced and when the loss of billions of gallons of water from the many 

wells is considered tolerable because of plentiful water locally. (Possibly the eastern US, but 

certainly not the upper mid-west or the southwest.) Otherwise, the only reasonable alternative is 

to demand that industry clean the water sufficiently before introducing the a water treatment 

plant or discharged into a waterway.

Response 1-TT

EPA agrees with the commenter that alternatives to injection are available – and EPA considered 

the availability of such alternatives (reuse/recycling; transfer to CWT facilities) in establishing 

the pretreatment standards in this final rule. However, EPA disagrees with the commenter that 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

41

“the only reasonable alternative [to injection] is to demand that industry clean the water 

sufficiently” before sending it to a POTW or discharging it to surface waters. EPA notes that 

under the existing ELG for direct dischargers, industry is prohibited from discharging pollutants 

in UOG wastewater to surface waters – and that under this final rule, the same prohibition would 

apply to discharging pollutants in UOG wastewaters to POTWs. EPA reasonably determined that 

a zero-discharge requirement was the “best” available technology, within the meaning of the 

statute, in establishing the requirements in this final rule. See Response 1-Z. 

General: EPA’s Rationale for the Rule

Comments

EPA-HQ-OW-2014-0598-0953 (API pg 2)

EPA’s overwhelming rationale for not observing the pretreatment standard promulgation 

requirements in this rule is that the proposed rule will have no impact on industry’s water 

management practices or water quality because it merely memorializes an existing practice. This 

rationale is neither correct nor a permissible basis to change the analytical requirements by which 

EPA promulgates pretreatment standards.

Response 1-UU

EPA disagrees with the commenter’s assertion that EPA failed to observe the requirements for 

promulgating pretreatment standards. As discussed in Response 1-A, EPA followed the statutory 

and regulatory requirements for promulgating pretreatment standards in this final rule. Contrary 

to the commenter’s assertion, EPA’s rationale for promulgating this rule was not merely to 

memorialize an existing practice. Rather, EPA’s rationale was based on a finding of pass-through 

(see Response 1-MM, explaining EPA’s pass through analysis), indicating that a pretreatment 

standard would be appropriate; and an analysis of the BAT/BADCT factors specified in the 

statute (see Response 1-Z) to establish the zero-discharge requirements in this rule. EPA did 

consider industry’s existing practices in its BAT/BADCT analysis – as data points in assessing 

the availability and economic achievability of zero-discharge options – but did not, as the 

commenter suggests, base its rationale for the rule solely on memorializing existing practice.

Comments

EPA-HQ-OW-2014-0598-0953 (API pg 37)

The proposed rule’s conclusion that there would be no cost to UOG extraction facilities is 

similarly premised on EPA’s summary conclusion that the proposed rule is simply 

memorializing current industry practices. This conclusion however, is misleading and incorrect.

Response 1-VV

EPA disagrees with the commenter’s assertion that EPA was incorrect in concluding that there 

would be no costs associated with this rule. See Response 1-FFF.
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

42

Comments

EPA-HQ-OW-2014-0598-0941 (AXPC pg 2)

EPA’s short-sightedness ignores both the relevant history responsible for POTWs’ non-existent 

role in UOG operations today and future water scarcity issues which may one day demand 

industry discharge to POTWs as a matter of course. 

Response 1-WW

With respect to the history resulting in POTWs non-existent role in UOG operations today, EPA 

recognizes that state regulations or voluntary restrictions may have contributed to the current 

industry practice of not sending wastewater to POTWs. However, regardless of the factors that 

may have contributed to the current industry practice, the fact remains that UOG operators are 

currently meeting zero-discharge through practices such as UIC disposal, reuse/recycling, and 

sending wastewater to CWT facilities; and that zero discharge is both available and 

economically-achievable (and thus meets BAT), and does not present a barrier to entry for new 

sources (and thus meets BADCT). See Response 1-GG; Response 1-FFF. With respect to the 

commenter’s suggestion that future water scarcity issues may one day necessitate POTW 

discharge, see Response 2-L, Response 3-I. 

Comments

EPA-HQ-OW-2014-0598-0941 (AXPC pg 4)

Rather, EPA erroneously concluded that an industry-wide prohibition is necessary because the 

current business environment allows for the use of alternatives to treatment and discharge. 

Response 1-XX

EPA disagrees with the commenter’s suggestion that EPA erred in considering existing industry 

practice of not sending wastewater to POTWs in establishing the zero discharge PSES/PSNS 

requirements in this final rule. See Response 1-GGG.

Comments

EPA-HQ-OW-2014-0598-0951 (IPAA pg 2)

fails to realistically undertake its responsibilities under the Clean Water Act (CWA) to create 

ELGs that meet not only current circumstances but future needs as well

Response 1-YY

To the extent that the commenter is asserting that EPA failed to take future availability of zero 

discharge options into account, See EPA’s Response 1-D. See Response 1-C; Response 1-U;

Response 1-UU.
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

43

Non-Water Quality Impacts

Comments

EPA-HQ-OW-2014-0598-0953 (API pg 3)

did not analyze non-water quality and energy impacts. These analyses are important both 

because they are mandated and because they are intended to require a broad examination of the 

potential impacts of the proposed rule. Water management is an important issue that cannot be 

viewed in isolation. Isolating and regulating a single management option without some 

comprehensive evaluation of other water management options creates uncertainty, decreases 

flexibility, and can lead to unintended consequences like damaging the prospects of increased 

beneficial reuse.

Response 1-ZZ

EPA disagrees with the commenter’s assertion that EPA failed to consider non-water quality 

environmental impacts including energy impacts. EPA specifically explained in the preamble at 

Section VI.B.1 and VI.B.2 that because industry is currently meeting the zero discharge 

requirements established in this rule, and thus, the rule would simply maintain current industry 

practice, there would be no incremental non-water quality environmental impacts resulting from 

the rule.

With respect to the commenter’s concern that the rule may result in a decrease in beneficial reuse 

of UOG wastewater, EPA notes that this rule does not address the beneficial reuse option under 

Subpart E of the oil and gas ELGs. Facilities that meet the requirements of Subpart E can 

continue to discharge to surface waters where their discharge is “good enough quality” for 

wildlife and agricultural use. See also Response 2-L addressing comments regarding water 

availability. EPA notes that UOG operators can also transfer water to CWT facilities, which can 

then discharge treated wastewater thus returning water to the water cycle. UOG facilities can 

also meet the zero discharge requirement by re-using wastewater in fracturing, which can reduce 

freshwater withdrawals and resulting stress on freshwater resources.

Comments

EPA-HQ-OW-2014-0598-0953 (API pg 38)

Both the BAT/NSPS analyses and the PSES/PSNS analyses require EPA to assess the non-water 

quality impacts of the proposed rule (including energy impacts). The proposed rule’s analysis of 

these impacts mirrors its analysis elsewhere – because EPA effectively banned POTWs from 

accepting UOG extraction wastewater in 2011, the proposed rule represents no change that could 

create non-water quality or energy impacts.117 As noted above, this is the wrong baseline for 

comparison.
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

44

When the analysis properly considers UOG extraction facilities’ prior ability to use POTWs with 

a ban on pretreatment, the non-water quality or energy impacts are conspicuous. Consider just 

the impacts of transporting water from wells in Pennsylvania to UIC wells in Ohio.

According to the TDD, in 2008 POTWs in Pennsylvania an average of 21,057 barrels per day of 

UOG extraction wastewater, or 7,685,805 barrels per year.118 Assuming a brine truck capacity 

of between 70 and 130 barrels, the pretreatment ban has likely resulted in between 161 and 300 

truck trips per day and between 59,121 and 109,797 tanker trips per year. Given the distance to 

UIC wells, those trips could easily exceed 400 each. While the oil and gas industry always 

strives to achieve the highest standards of safety, such a large amount of long-distance truck 

travel may increase the risk of some incidents and spills. Even if all the trips proceeded without 

incident, 60,000 to 110,000 truck shipments per year will have air impacts, as well as impacts on 

highway maintenance and fuel use. EPA did not consider any of these impacts.

EPA should consider also the impacts of consumptive water use, as the Agency did in the TDD 

for the metal molding and casting industry. Disposal in a UIC well is a consumptive use of 

water, while treatment for discharge (in conjunction with POTWs or not) makes water available 

for aquatic ecosystems, recreation, or for beneficial reuses in agriculture and elsewhere. Water 

availability is an important issue, particularly in drought-prone areas, and there are certainly 

impacts on non-water quality and energy impacts from banning a non-consumptive treatment 

option. EPA had an obligation to identify and consider these impacts and, in publishing the 

proposed rule, the Agency failed to meet that obligation.

117 80 Fed. Reg. at 18,577.

118 TDS at 110.

Response 1-AAA

EPA agrees that the Clean Water Act requires consideration of non-water quality environmental 

impacts in determining PSES/PSNS. 

EPA disagrees with the comment that EPA banned POTWs from accepting UOG wastewater in 

2011. See Response 1-HHH.

EPA also disagrees with the commenter’s view that EPA should have used prior industry 

practice of sending UOG wastewater to POTWs as a baseline in assessing non-water quality 

environmental impacts. See Response 1-FFF. Because the CWA requires a consideration of the 

non-water quality environmental impacts of the regulation, EPA appropriately assessed whether 

the regulation would result in any additional non-water-quality impacts as compared to the 

current pre-regulation status quo – rather than as compared to an earlier industry practice that no 

longer exists today. Given that the status quo is zero discharge, and that the final rule would 

simply codify that existing practice, EPA reasonably determined that there would be no 

incremental – and therefore no unacceptable – non-water-quality environmental impacts 

resulting from the regulation.
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

45

EPA agrees that air impacts and impacts on water availability can be appropriate non-water 

quality environmental impacts for consideration in establishing PSES/PSNS. However, here – as 

compared to the current baseline of industry meeting zero discharge, the regulation would not 

result in any additional impacts on air/water availability, as it is simply codifying the existing 

practice.

Comments

EPA-HQ-OW-2014-0598-0997 (EUREKA pg 3)

The air emission/permitting issues associated with treatment/pretreatment have largely been 

ignored to this point. 

Response 1-BBB 

See Response 1-AAA.

Precedent for Zero Discharge

Comments

EPA-HQ-OW-2014-0598-0953 (API pg 14)

In the past, EPA has evaluated “pass-through potential” for both toxic and non-conventional 

pollutants by comparing the percentage of a pollutant removed at a well-operated POTW 

“performing secondary treatment” to the percentage of the pollutant removed by a “discharging” 

industry category.41 EPA has never promulgated a rule based on a “pass-through potential” 

comparing an industry with zero direct discharges (which equates to a 100% removal) to a welloperated POTW, which is certain to be less than 100% effective. To do so would effectively 

require any industry with a “zero” direct discharge option to be subject to a “zero indirect 

discharge” pretreatment ban.

EPA specifically declined to take this approach for the Tobacco Products industry, which 

includes 149 facilities with only three direct dischargers, 15 indirect dischargers, and 131 zero 

dischargers. EPA assessed the “pass-through potential” by comparing the “well-operated 

POTW” to only the direct and indirect discharging facilities – not the 131 zero-dischargers.42 

Based on that comparison, EPA found that national pretreatment standards for the Tobacco 

Products industry was not warranted.43

4174 Fed. Reg. 68,599 (Dec. 28, 2009). See also 

http://water.epa.gov/scitech/wastetech/guide/304m/upload/Preliminary-2012-EffluentGuidelines-Program-Plan.pdf

42 

http://water.epa.gov/scitech/wastetech/guide/304m/upload/2007_01_10_guide_304m_2006_200

6-TSD-part03.pdf (accessed 6/19/15).
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

46

43 

http://water.epa.gov/scitech/wastetech/guide/304m/upload/2007_01_10_guide_304m_2006_200

6-TSD-part03.pdf (accessed 6/19/15).

Response 1-CCC

EPA disagrees with the commenter’s suggestion that the pass-through analysis requires a 

comparison of the removal capacity of POTWs with that of “discharging industries.” See 

Response 1-M. As discussed in that comment response, the pass through analysis involves a

comparison of POTW removal capacity with the amount removed by a BPT/BAT/BADCT

model treatment system. Here, the model treatment system consists of zero discharge technology 

options – based on the BPT-based zero discharge ELG for direct dischargers in this category. In 

contrast, in the Tobacco Products study referenced by the commenter, the BAT model treatment 

system was not zero discharge – as there is no zero discharge limit applicable to direct 

dischargers in that category. In fact, there is no ELG applicable to direct dischargers in that 

category; thus, EPA considered the available technologies and determined that the technology 

basis for purposes of assessing the need for pretreatment standards was biological treatment with 

nutrient removal. Accordingly, because of the difference in BAT model treatment systems, EPA 

appropriately compared pollutant removals by POTWs to the removal capacity using a non-zero 

technology basis in the Tobacco Products study, and to the removal capacity using zero 

discharge technology options in this final rule.

Energy Impacts

Comments

EPA-HQ-OW-2014-0598-0953 (API pg 41)

The EPA overlooked the Energy Water Nexus when considering the ELG rule. Banning 

discharge to a POTW does not consider the how energy impacts water and water impacts energy. 

The water-energy nexus is integral to two policy priorities for DOE: climate change and energy 

security.122 “Water Is Responsible for >12% of National Energy Use”123 and, while the vast 

majority of this use comes from electricity generation rather than resource extraction, 

permanently closing a pathway essential to reducing consumptive energy industry water use and 

returning water to the hydrologic cycle should not be done preemptively.

In fact, establishing a legitimate ELG for oil and gas to provide pretreated water to a POTW 

meets the objectives of the DOE Water-Energy Nexus by creating water, cutting air emissions 

and extending the life of energy sources. For example, flared gas can be used for on-site 

treatment of produced water from shale production, converting two streams that would otherwise 

be waste into a valuable commodity.124 Were an ELG to be established, this water could be 

delivered to a POTW.
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

47

In an analysis for a single well, a central water treatment facility using waste heat was compared 

to UIC water disposal. The central treatment facility using waste heat used about 50% less 

energy and created about 40% less GHG emissions than the UIC scenario. An ELG could allow 

the more efficient scenario to occur,125 preserving water indirectly through energy conservation 

as well as directly by allowing the water that would otherwise have been disposed of to be 

returned to the water cycle.

122 DOE Water-Energy Nexus Page vi., available at 

http://energy.gov/sites/prod/files/2014/07/f17/Water%20Energy%20Nexus%20Full%20Report%

20July%202014.pdf

123 EPA Energy-Water Nexus Webber Slide 45., available at 

http://www.epa.gov/region6/rsc/global- energy-trends-6-4-14.pdf

124 Id at Slide 73.

125 GWPC UIC vs treatment Slide 12, available at 

http://www.gwpc.org/sites/default/files/event- sessions/15d_Harto_Chris_0.pdf

Response 1-DDD

See Response 1-ZZ regarding EPA consideration of non-water-quality environmental impacts in 

this rulemaking. See Response 2-L regarding options for returning water to the hydrological 

cycle.

Comments

EPA-HQ-OW-2014-0598-0953 (API pg 40)

When an actual pretreatment standard could be established, a ban does not serve the energywater nexus.

Response 1-EEE

See Response 1-DDD.

EPA’s Economic and Cost Approach

Comments

EPA-HQ-OW-2014-0598-0953 (API pg 3)

EPA’s economic analysis found that the proposed rule would have no costs and no benefits. But 

that is not the case either. Prior to the interim ban on POTW use in 2011, POTWs were utilized 

by some industry members. EPA should have measured economic impacts using a pre-2011 

baseline, not by measuring the impact of a final pretreatment ban to the impact of the interim 

pretreatment ban.
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

48

Response 1-FFF

EPA does not agree that a ‘pre-2011 baseline’ is appropriate for assessing the costs and benefits 

of this particular regulatory action. According to EPA’s Dec., 2010, Guidelines For Preparing 

Economic Analyses, section 5.1, “A baseline is defined as the best assessment of the world 

absent the proposed regulation or policy action. This ‘no action’ baseline is modeled assuming 

no change in the regulatory program under consideration.” Based on this description, the 

demarcation between the baseline and future state is the ‘regulation or policy action’ for which 

the economic analysis is being conducted. Thus, EPA appropriately established the baseline 

based on the existing state at the time of EPA’s development of this final rule – not based on 

some earlier state that may have existed several years prior to this final rule. With respect to the 

so called “interim ban” – by which the commenter is referring to the voluntary ban on Marcellus 

Shale natural gas drillers, in effect from April 19th, 2011 when PA DEP announced its request –

EPA notes that this ban pre-dated EPA’s proposed regulatory action, and was an action taken by 

the state and not by EPA. Thus, it is not appropriate to consider any costs to UOG facilities 

associated with such state actions unrelated to this final rule – and therefore, not appropriate to 

consider “prior to the interim ban” as a baseline for this regulatory action.

EPA also disagrees with the commenter’s suggestion that EPA was incorrect in finding that there 

are no costs associated with this rule. As stated in the preamble to the final rule, there are no 

costs associated with this rulemaking because data available to EPA indicates that UOG 

extraction facilities are not currently using POTWs to manage wastewater from unconventional 

oil and gas extraction facilities, and this rule would not require any change from existing 

practice.

Comments

EPA-HQ-OW-2014-0598-0953 (API pg 35)

The proposed rule contains no economic analysis. No costs were identified, presented or even 

considered for any pretreatment technology, even for the zero discharge options that EPA 

concluded were economically feasible. No costs were identified for any alternative options 

considered either. In fact, the only cost estimated in the entire proposed rule and 175-page TDD 

was an estimate that transporting UOG wastewater can cost as much as $13 per barrel.108 And, 

because no costs were estimated for any of the various compliance options and pretreatment 

technologies, no analysis was conducted on the industry’s ability to incur those costs.

As explained above, explicit within the BAT analysis is the requirement that standards be 

economically feasible. EPA “determines economic achievability on the basis of total costs to the 

industry and the effect of compliance with BAT limitations on overall industry and subcategory 

financial conditions.”109 The legislative history underscores that Congress “believes that there 

must be a reasonable relationship between costs and benefits if there is to be an effective and 

workable program.”110 Like the technological analysis that preceded it, the proposed rule’s 

economic analysis amounted to little more than a short justification for not conducting an 

economic analysis:
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

49

because this [zero discharge and UIC use] represents current industry practice nationwide, no 

facilities will incur incremental costs for compliance with the proposed PSES and, therefore, the 

proposed PSES is economically achievable. For the same reasons, the proposed PSES will result 

in no incremental non-water quality environmental impacts. Finally, EPA determined that the 

proposed PSNS present no barrier to entry into the market for new sources. While EPA cannot

say with certainty exactly how new sources will manage their UOG extraction wastewater, 

information in the record indicates that new sources would manage their UOG wastewater 

following current industry practice. EPA has found that overall impacts from the proposed 

standards on new sources would be minimal, as is the case for existing sources, since the costs 

faced by new sources generally would be the same as those faced by existing sources.111

Put more simply, EPA concluded that this proposed rule would result in zero costs and zero 

environmental benefits. That said, when evaluating the “No Rule” option, EPA justified the need 

for a rule to prevent “resource-constrained control authorities and/or POTWs” from allowing any 

influent of UOG extraction wastewater (no matter the level of TDS or pretreatment).112 Explicit 

within this justification is EPA’s conclusion that the Agency expects states and POTWs to suffer 

an economic harm from not being able to provide wastewater treatment services to UOG 

extraction facilities. Yet, EPA made no attempt to calculate the economic impact on states and 

POTWs. Citing to the resource needs of states/POTWs as a justification, but not an economic 

impact is arbitrary and capricious, and not in accordance with the CWA.

While performing a cost analysis may be difficult, indications are that water treatment costs have 

been declining as technologies change and the fluid systems change, making water treatment 

more viable economically.113

Additionally, water recycling can be lower cost than disposal, and by inference, economically 

viable to treat and transfer to a POTW.114

108 TDD at 97.

109 Effluent Limitations Guidelines and Standards for the Dental Category, 79 Fed. Reg. 63258, 

63261 (proposed Oct. 22, 2014) (to be codified at 40 C.F.R. pts. 403 and 441).

110 BP Exploration & Oil, Inc. v. EPA, 66 F.3d 784, 789 (6th Cir. 1995).

111 80 Fed. Reg. at 18,572.

112 80 Fed. Reg. at 18,573.

113 See, e.g., Sara Jerome, “Recycled Water Industry Suffers As Oil Prices Drop,” available at 

http://www.wateronline.com/doc/recycled-water-industry-suffers-prices-drop-0001

114 See e.g., Conway Irwin, “Wastewater Recycling Costs and Challenges: Part III,” Oil & Gas 

Technology available at http://breakingenergy.com/2013/05/16/wastewater-recycling-part-iiicosts-and-challenges/

Response 1-GGG

EPA disagrees with the commenter’s use of the term “economic feasibility” in characterizing the 

requirements under the Clean Water Act. See Response 1-C. The CWA section 

301(b)(2)(A)requires that the technology basis for BAT be “economically achievable,” among 

other factors, Here, as explained in Section VI.B. of the preamble, EPA determined that zero 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

50

discharge of UOG pollutants to POTWs is economically achievable. The first step in determining 

whether a technology basis is economically achievable is an estimate of the incremental costs 

associated with applying that basis throughout the industry. That is, what the costs would be for 

the regulation or policy action incremental to the current world absent the proposed regulation or 

policy action. EPA performed such an estimate for this final rule. As commenter noted, because 

industry does not currently discharge UOG wastewaters to POTWs, and the final rule is a zero 

discharge standard, that incremental cost is $0. 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. Contrary to the 

commenter’s suggestion, it was appropriate for EPA to consider the current industry practice of 

zero discharge in determining that a zero discharge technology basis is appropriate for the final 

rule. See Texas Oil and Gas Ass’n v. EPA, 161 F.3d 923 (5th Cir. 1998) ) (holding that “given the 

proportion of dischargers actually practicing zero discharge at the time of rulemaking” [here, 

100% of coastal facilities outside of Cook Inlet, Louisiana and Texas, and at least 62% in 

Louisiana and Texas], this “lends significant additional weight to EPA’s ‘presumption of 

regularity,” suggesting as it does that reinjection was not only economically achievable but was 

actually practiced by a large majority of coastal facilities at the time of the rulemaking”). 

In establishing NSPS, EPA is required to “take into consideration” the cost of achieving effluent 

reductions. CWA Section 306(b)(1)(B). EPA considered information in the record indicating that 

new sources would manage their wastewater following current industry practice and that costs 

for new sources would be the same as those faced by existing sources, and since along with that, 

EPA did not receive any data during comment-response to suggest otherwise, EPA therefore 

determined that the final rule would not present a barrier to entry for new sources. No costbenefit analysis is required in establishing standards for new sources, and costs are to be given 

even less weight for new sources than for existing sources. See American Iron and Steel Institute 

v. EPA, 526 F.2d 1027, 1059 (3rd Cir. 1975). 

EPA again considered a non-zero numerical discharge standard in preparing the final rule. The 

commenter correctly states that EPA did not present any total cost estimates for the regulatory 

option that would have resulted in non-zero numerical pretreatment standards. Commenter is 

incorrect in stating that EPA is required to do so. EPA need not estimate the total costs to the 

industry of any non-zero numerical pretreatment standard option and an associated economic 

achievability analysis for this option because EPA determined that the selected regulatory option 

meets all the requisite statutory factors for BAT/BADCT, and thus represents BAT/BADCT. As 

explained in Section VI.B of the final preamble, the final pretreatment standards are available, 

economically achievable, and have no incremental non-water quality impacts. They are

consistent with the CWA goal of eliminating the discharge of pollutants into navigable waters 

(CWA section 101(a)(1)). 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 potentially increase the discharge of such pollutants to POTWs. Therefore, EPA does not 

need to make a determination as to the availability and economic achievability of a non-zero 

numerical pretreatment standard because it reasonably rejected any less stringent basis in 

comparison to the selected technology basis as it does not reflect “best” available technology 

within the meaning of Section 304(b) or “best” available demonstrated control technology within 

the meaning of Section 306 of the Clean Water Act. 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

51

EPA again considered the “no rule” option in preparing this final rule. A “no rule” option would 

have imposed no change to the existing pretreatment regulatory regime, or industry practice, and 

would, therefore, have been a “no incremental cost and pollutant reduction” option. EPA did not 

select a “no rule” option for several reasons. Among those reasons discussed in the preamble, 

one is that 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,

and that in the absence of such regulations or policies, resource-constrained control authorities 

and/or POTWs who 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 proposed rule with several states 

that have indicated that a federal pretreatment standard would reduce their administrative burden 

(DCN SGE00762; DCN SGE00743).

EPA disagrees with the comment that “[EPA concluded] that the Agency expects states and 

POTWs to suffer an economic harm from not being able to provide wastewater treatment 

services to UOG extraction facilities.” The commenter pulled out only a part of the sentence, and 

quoted it out of context. When EPA describes control authorities and POTWs as ‘resourceconstrained,’ it is stating that the burden of ‘having to evaluate whether to accept transfers of 

wastewater on a case-by-case basis’ would further harm the resource-constrained control 

authorities and POTWs. Given the need for POTWs to inform their pretreatment authority 

program of new sources of pollutants, if the POTW were to receive a request to accept a new 

source of pollutant (in this case, wastewater from an unconventional well), the POTW would 

need to evaluate the new source. This can be burdensome for a POTW in terms of staff time and 

resources. With a clear regulation, the POTW is able to answer the request with a decision 

quickly and without the need to devote resources for evaluating the new source. The commenter 

assumes that a POTW may receive compensation for accepting these wastewaters from a 

producer, resulting in more resources to a ‘resource-constrained” POTW. EPA disagrees with the 

assumption that a POTW would evaluate the wastewater and conclude that it is acceptable to 

accept the wastewater for payment, because EPA has evaluated the wastewater and concluded 

there is pass-through of pollutants. Presumably, a POTW would similarly conclude after 

analysis, and determine it cannot accept the wastewater. Evidence of this is reflected (1) in that 

EPA received no comments from POTWs that supported the assertion of the commenter and (2) 

in the comment from the National Association of Clean Water Agencies (NACWA), 

representing the interests of nearly 300 public clean water agencies nationwide, that NACWA is 

“not aware of any NACWA members currently managing wastewater from unconventional oil 

and gas extraction facilities, and we did not receive any concerns about the proposed prohibition 

in response to our requests for input from NACWA members. For these reasons, NACWA 

supports the proposed prohibition of indirect discharges to publicly owned treatment works.” 

NACWA’s support of the final rule, in addition to EPA’s discussion with the states indicating

that this rule will help by giving a clear determination, indicates that EPA’s consideration of the 

resource needs of states/POTWs in not choosing a “no-rule” option is not arbitrary and 

capricious as the commenter suggests.
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

52

EPA is aware of the two-year decrease in the price of oil and the 8-year decrease in the price of

natural gas (based on the peak in price of natural gas in 2008) and the negative impact the 

depressed prices has had on the financial picture of oil and gas extraction (OGE) firms in 

general, and UOG firms, more specifically (see Industry Profile DCN SGE01277). Since all 

UOG facilities are able to use wastewater management techniques other than sending their 

wastewater to a POTW in these times of depressed prices, then these zero discharge management 

practices are clearly economically achievable in times of higher prices. Also note that no 

industry commenter’s suggested they could not afford to comply with the pretreatment standard 

or that the zero discharge standard is not economically achievable. EPA asked for comment on 

whether or not there are any existing onshore UOG extraction facilities that currently discharge 

UOG extraction wastewater to POTWs in the U.S. As well, EPA asked for comment on costs 

and benefits to POTWs, states, and localities associated with the proposed rule. In both cases, 

EPA received no data in comments providing evidence of a facility that does not use zero 

discharge technology. Therefore, EPA determined that a facility can afford a technology to meet 

the zero discharge standard. If they already have it in place, there is no additional cost that EPA 

is imposing. Therefore, EPA concluded that the technology is economically achievable. 

The commenter states that “water recycling can be lower cost than disposal” and suggests by 

inference that it would be economically viable to treat and transfer wastewater to a POTW. EPA 

notes that pretreating wastewater and transferring the pretreated wastewater to a POTW would 

result in greater pollutant discharge than the selected option. The selected option results in zero 

discharge of pollutants, and therefore EPA reasonably determined that it was “best” available 

technology within the meaning of the CWA. See also Response 1-G.

Comments

EPA-HQ-OW-2014-0598-0953 (API pg 37)

Until 2011, about 20 POTWs in Pennsylvania accepted UOG extraction wastewater, and they 

likely accepted conventional produced water before the advent of modern hydraulic 

fracturing.115That practice stopped entirely in 2011 based in large part on EPA’s actions. EPA 

objected to Pennsylvania’s POTW TDS limits in 2009, and strongly signaled to the Pennsylvania 

Department of Environmental Protection (PADEP) that EPA would require the POTWs to 

discontinue accepting wastewater if PADEP did not issue such an order itself. EPA’s rule in 

stopping the acceptance of UOG extraction wastewater at POTWs in Pennsylvania is welldocumented and reflected in the Agency’s May 12, 2011 letter to Secretary Krancer, EPA’s 

February 1, 2013 warning letter to POTWs, and it enforcement action against Hart Resource 

Technologies, Inc. 

Importantly, we are not suggesting that EPA improperly exercised its authority to stop the use of 

POTWs in Pennsylvania until the UOG extraction wastewater could be more closely examined 

and a rule such as this could be promulgated. We strongly disagree, however, with the manner in 

which EPA misuses this information to support its lack of economic analysis.

EPA’s actions in Pennsylvania effectively banned POTW use in Pennsylvania and, because 

Pennsylvania was the only state where POTWs accepted UOG extraction wastewater, EPA had 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

53

achieved in 2011 exactly the result the Agency is proposing to memorialize in this proposed rule. 

EPA cannot avoid identifying additional costs for a ban on POTW use, however, by comparing it 

to the already higher costs industry incurred when EPA effectively banned POTW use in 2011. 

The difference in cost between a “final pretreatment ban” like the only proposed herein and the 

cost of an “interim pretreatment ban” will always be zero because, while the mechanism differed, 

they were both bans. A more accurate and supportable basis for a cost comparison of the 

differences in wastewater management costs in Pennsylvania before and after EPA achieved its 

interim ban in 2011.

According to the TDD, in 2008 POTWs in Pennsylvania an average of 21,057 barrels per day of 

UOG extraction wastewater, or 7,685,805 barrels per year.116 Using the TDD’s estimate that it 

costs $13 per barrel to transport UOG extraction wastewater from the Marcellus to UIC wells in 

Ohio (the closest available), this annual cost of this rule could easily approach 100 million 

($99,915,465). While this brief calculation does not net out the costs to pay POTWs to take the 

UOG extraction wastewater, those costs to industry would be pretty close to dollar-for-dollar 

benefits to POTWs and control authorities. The estimate above may in fact be conservative 

because the pace of drilling, and therefore volumes of UOG wastewaters produced, in the 

Marcellus increased for several years following 2008.

Far from resulting in zero costs, the proposed rule would cause UOG extraction facilities, 

POTWs, control authorities, and communities to incur nearly $100 million in annual costs. That 

fact does not change simply because EPA effectuated the pretreatment ban in two steps instead 

of one.

115 TDS at 110.

116 TDS at 110.

Response 1-HHH

See Response 1-FFF.

Furthermore, and related, EPA disagrees that it placed an ‘interim ban in 2011’. The commenter 

implies that EPA caused Pennsylvania to make the ban through a series of letters. The first cited 

letter from May 12, 2011 to Michael Krancer from Region 3, has been mischaracterized by the 

commenter. In this letter EPA acknowledges that, “On April 19, 2011, PADEP announced its 

request that Marcellus Shale natural gas drillers voluntarily cease delivering their wastewater to 

15 wastewater treatment plants which currently accept it.” EPA then further recognizes the “May 

2, 2011, follow-up discussions between EPA and PA DEP concerning the disposal of Marcellus 

Shale wastewater.” The timeline logic of this letter demonstrates that EPA did not cause PA DEP 

to make the ban, as EPA’s discussions with PA DEP referenced in the letter is subsequent to the 

state’s announcement of its request for a voluntary ban. 

Further, the commenter references a “February 1, 2013 warning letter to POTWs”. First, this 

letter is from EPA to pretreatment authority staff of PA DEP, not to POTWs, discrediting the 

commenters claim. Second, the letter is meant to “clarify the procedures that POTWs in PA must 

follow....” And goes on to quote existing 40 CFR Part 122.42(b) regulation language about 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

54

required adequate notification from POTWs when there is ‘any new introduction of pollutants 

into the POTW...” or “any substantial change in the volume or character of pollutants being 

introduced into that POTW...” Contrary to the commenter’s characterization that EPA was 

attempting to signal to PADEP that EPA would establish new prohibitions on the wastewater 

discharge to the POTW if the state did not, the letter simply demonstrates that EPA was citing 

existing authority and requirements under the Clean Water Act. Third, this letter was written 

over a year after the April 19th, 2011, announcement from PADEP requesting a voluntary ban. 

The sources provided by the commenter defeat their own logic.

Moreover, commenter’s logic is flawed. The purpose of estimating the total costs to the industry 

of a regulatory option is to determine if such an approach is economically achievable. 

Irrespective of such costs, the fact that ALL facilities within this industry have been able to meet 

zero discharge to POTWs (whether that approach was required or voluntary) demonstrates that it 

is economically achievable.

Comments

EPA-HQ-OW-2014-0598-0977 (EIP pg 16)

Commenters agree with EPA that the Proposed Rule does not cause incremental changes to 

current industry practice that would require monetization of costs, since unconventional oil and 

gas wastewater is not generally being managed by discharge to POTWs. 

Response 1-III

EPA acknowledges support for the proposed rule. As stated in the preamble to the final rule, 

there are no costs associated with this rulemaking because data available to EPA indicates that

UOG extraction facilities are not currently using POTWs to manage wastewater from 

unconventional oil and gas extraction activities. 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

55

2.0 IMPLEMENTATION

EPA’s Study of Centralized Waste Treatment Facilities

Comments

EPA-HQ-OW-2014-0598-0953 (API pg 3)

Importantly, EPA has a readily available opportunity to avoid promulgating a shortsighted rule in 

isolation – the Agency is studying and is likely to soon propose standards for centralized waste 

treatment facilities (CWTs) treating produced water. This important treatment option is directly 

tied to the present proposal as it used in conjunction with POTWs and in lieu of POTWs. By 

sequencing – rather than coordinating these rules – EPA is creating unnecessary inflexibility and 

uncertainty. API notes some of these uncertainties and inflexibilities at the outset of the detailed 

comments.

strongly urge EPA to abandon its incremental approach to UOG extraction wastewater 

management by withdrawing this currently proposed rule, awaiting the results of the CWT study, 

and then (if warranted) issuing a proposed rule that considers the ELGs and CWTs holistically as 

the Agency itself has recommended.

Response 2-A

As noted by the commenter, EPA is currently conducting a detailed study of Centralized Waste 

Treatment (CWT) facilities. A CWT facility is “any facility that treats (for disposal, recycling or 

recovery of materials) or recycles any hazardous or non-hazardous industrial waste, hazardous or 

non-hazardous industrial wastewater, and/or used material from off-site.” Requirements for 

pollutant discharges in CWT facility wastewater are found in 40 CFR Part 437. As such, CWT 

facilities that accept oil and gas wastewaters are not subject to this final rule, as they are subject 

to 40 CFR Part 437. Comments related to the CWT ELGs are outside the scope of this final rule. 

Also see Response 6-A and Response 6-C.

As described in EPA’s Final 2014 Effluent Guidelines Program Plan (EPA-821-R-15-002, July 

2015) and elsewhere, EPA is conducting a detailed study of CWT facilities accepting oil and gas 

extraction wastewaters to determine if revisions to the effluent limitations guidelines and 

standards (ELGs) at 40 CFR Part 437 are warranted. The commenter is mistaken in stating that 

EPA is likely to soon propose standards for CWT facilities treating produced water. EPA has not 

announced any decisions regarding a future rulemaking for the CWT category. Any decisions 

regarding future revisions to the CWT ELGs will be made based on the data and information 

contained in the detailed study. 

EPA does not agree that finalizing the UOG rule now, rather than waiting until the conclusion of 

the CWT detailed study, creates unnecessary inflexibility and uncertainty for the industry. 

Regarding inflexibility, as described above, this rule does not apply to CWT facilities and does 

not in any way restrict a CWT facility’s ability to accept oil and gas wastewaters. Regarding 

inflexibility for facilities subject to this rule (UOG extraction facilities), this rule does not affect 

the ability of these facilities to send their wastewater to CWT facilities. This rule affects only 

their ability to send their wastewater to POTWs – and as stated in the preamble and elsewhere in 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

56

the record supporting the final rule, these facilities are not currently utilizing POTWs for 

management of wastewaters from unconventional oil and gas extraction activities. To the extent 

that the commenter is suggesting that these facilities may be interested in sending wastewater 

discharges to POTWs in the future if CWT disposal options are limited under any final CWT 

rule, EPA notes, as stated in the preamble and elsewhere in the record supporting the final rule, 

POTWs are not an appropriate management option for unconventional oil and gas extraction 

wastewaters, since various pollutants contained in those wastewaters are not amenable to 

treatment in POTWs. Further, contrary to the commenter’s statement that the final rule creates 

uncertainty, it, in fact, provides certainty to UOG extraction facilities, regulators, and the public 

in that it establishes nationally applicable requirements.

Based on these and other factors described in the final rule preamble, EPA has determined that it 

is appropriate to finalize pretreatment standards for UOG wastewater at this time. It is not 

appropriate to delay finalizing pretreatment standards for unconventional oil and gas extraction 

wastewaters until the conclusion of the CWT detailed study since the two rules apply to different 

entities. 

The commenter is also mistaken in stating that promulgating pretreatment standards for UOG 

wastewater is shortsighted and is being done in isolation. Rather, the UOG rulemaking team 

coordinates regularly with other EPA activities pertaining to this sector (e.g. EPA Hydraulic 

Fracturing Drinking Water Assessment) including the CWT study. As such, the CWT study team

is well aware of the scope and nature of the UOG pretreatment standards that are being finalized

and the UOG team is well aware of the scope of the CWT study being conducted. EPA has 

acknowledged that wastewaters from UOG extraction activities are currently being managed at 

CWT facilities, as described in the preamble to the final rule, the final rule TDD, and in the 

record for the final rule. In addition, EPA has identified CWT facilities that accept oil and gas 

extraction wastewaters (including unconventional oil and gas extraction wastewaters) for further 

study in the final 2014 Effluent Guidelines Program Plan (see EPA-821-R-15-002). Any 

decisions regarding future revisions to the CWT effluent limitations guidelines and standards 

will consider available management practices for those wastewaters as part of the baseline for 

that industry, which will reflect the zero discharge requirements being promulgated in this final 

rule. Lastly, as described above, EPA notes that nothing in this final rule nor the CWT ELGs 

restrict the ability of a CWT facility to accept oil and gas wastewaters.

Comments

EPA-HQ-OW-2014-0598-0953 (API pg 3)

We believe the proposed rule is based on an improper analysis and was completed on an 

unnecessarily rushed schedule. API therefore requests that EPA withdraw this proposed rule, 

conduct a legally sufficient analysis, and, if a new proposal is deemed necessary, issue that 

proposal in conjunction with the CWT proposal EPA is planning to publish.

Response 2-B
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

57

EPA does not agree that the rule is based on an improper analysis and was completed on a rushed 

schedule. As described in Section IV of the final preamble, the CWA specifies the factors EPA is 

to consider in establishing ELGs. EPA analyzed these factors in developing this final rule. See 

the preamble to the final rule for a discussion of EPA’s consideration of these factors. Also see 

the record for the final rule. EPA also complied with the required Executive Orders. See Section 

IX of the final preamble and the record. Lastly, EPA complied with the Administrative 

Procedure Act in conducting this rulemaking by publishing the proposed rule in the Federal 

Register, taking comment and publishing a final rule in the Federal Register. That EPA

completed these activities in a time-efficient manner is not an indication that the process was 

“rushed”, but rather reflects an effective use of government resources. See Response 1-A;

Response 1-B; Response 1-C; Response 1-M.

Comments

EPA-HQ-OW-2014-0598-0953 (API pg 4)

the true costs of this standard are unclear because it is unnecessarily preceding a concurrent 

study (and presumed future rulemaking on CWTs) that could substantially alter the importance 

of this pretreatment standard.

Second, the true costs of this standard are unclear because it illogically precedes EPA’s 

forthcoming study of the centralized waste treatment facilities (CWT) that treat UOG extraction 

wastewater - and presumably the forthcoming proposed rule to further regulate CWTs.

The treatment technologies involved in POTWs are directly related to CWTs because CWTs are 

used to pretreat UOG produced waters that are sent to POTWs. It logically follows that 

industry’s concern over the proposed rule’s elimination of a pretreatment option may either be 

lessened or heightened depending on how EPA intends to regulate (or ban) CWT use or any 

other of industry’s few remaining treatment options. In order to effectively comment on the 

present proposed rule, stakeholders must be given some understanding of the context for the 

rulemaking and EPA’s broader plans for the regulation of produced water from UOG.

Since the present proposed rule and expected proposed rule for CWTs are clearly intertwined, it 

is unclear why EPA is declining to promulgate them in conjunction. Even EPA itself has 

acknowledged that its ban on pretreatment of produced water from UOG creates more demand 

for CWTs.2 Furthermore, in its Assessment of the Potential Impact of Hydraulic Fracturing for 

Oil and Gas on Drinking Water Resources, EPA recognized the need to examine water use and 

disposal issues on a comprehensive and holistic basis.

To date, the only justification EPA has provided for moving this present rule more quickly is 

that, at the present time, the proposed rule seems to have no environmental costs or impacts 

because it simply memorializes current industry practices. It is concerning that EPA – while 

acknowledging that these two rules are intertwined - has chosen to separate and sequence them 

without any justification at all beyond the prediction that industry practices will evolve.

Response 2-C
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

58

First, this rule is not applicable to CWT facilities and as such, comments related to costs to CWT 

facilities are outside the scope of this final rule. CWT facilities that accept oil and gas 

wastewaters for treatment and then discharge to POTWs are not subject to this final rule. Rather, 

they are subject to requirements in 40 CFR Part 437. See also Response 2-A.

Second, EPA does not agree that the costs of the final rule are unclear. As stated in the preamble 

to the final rule, there are no costs associated with this rulemaking because data available to EPA 

indicates that UOG extraction facilities are not currently using POTWs to manage wastewater 

from unconventional oil and gas extraction activities. See Response 1-FFF. Industry has not 

provided any specific comments that have changed EPA’s understanding that establishing a zero 

discharge pretreatment standard for unconventional oil and gas extraction activities would not 

result in any costs or economic impacts to the industry.

EPA also does not agree with comment that industry cannot effectively comment on the current 

rulemaking without having some understanding of the context for the rulemaking and EPA’s 

broader plans for the regulation of produced water from unconventional oil and gas extraction 

activities. EPA also does not agree with the comment that the current rulemaking and the CWT 

industry are intertwined such that EPA should delay the current rulemaking until a decision has 

been made regarding the CWT industry. See Response 2-A.

One of the ways UOG extraction facilities may meet the zero pollutant discharge requirement in 

today’s rule is to send their wastewater to a CWT facility. As explained in the preamble, while 

the vast majority of wastewater is managed by disposal in underground injection wells and/or reuse in fracturing another well, a small, but in some geographic areas increasing, portion of the 

UOG extraction industry currently transfers it wastewater to CWT facilities. EPA notes that it 

has no available data to predict whether or not the frequency of transferring to a CWT facility 

will increase. Irrespective of the frequency of the use of CWT facilities, as explained above and 

in Response 2-A, this rule does not apply to CWT facilities. 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 revisions to the existing regulations may be 

appropriate, EPA has not initiated a rulemaking for CWT facilities. Moreover, EPA is not 

evaluating any approaches that would restrict their availability to accept such wastewaters as part 

of that study.

Use of Centralized Waste Treatment Facilities 

Comments

EPA-HQ-OW-2014-0598-0953 (API pg 38)

CWTs Are an Essential Component of Wastewater Management and Their Use Should be 

Promoted
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

59

As the EPA documented in Figure D-1 of the TPP, CWTs are one of only a very few methods of 

management produced water. The other alternatives are essentially disposal through an 

underground injection well (which cannot be considered treatment for the purposes of ELGs) or 

treatment at the well site (non-centralized), and neither offers the same benefits as CWTs. The 

benefits of CWTs include, but are not limited to the following:

They produce useable quality water which can be returned to the hydrologic cycle (as opposed to 

consumption from using a UIC disposal well). This is particular important in many arid areas.

CWTs eliminate or significantly reduce truck traffic to haul water to a UIC disposal well, thus 

reducing the safety, environmental, and nuisance concerns commonly associated with truck 

traffic.

CWTs often offer increased technological efficiency and improved operating effectiveness 

compared to the treatment that can be done on a smaller scale at the well site.

CWTs often reduce costs when compared to UIC disposal wells or well site treatment for the 

reasons above. The reduced operating costs allow wells to produce longer - thereby adding 

reserves which increase the supply of oil and gas and help to maintain lower prices for the 

consumer.

States have also recognized the benefits of CWT treatment. In fact, when the Texas Railroad 

Commission (TXRRC) revised rule Rule 3.8 in 2012, a key change facilitating CWT use was 

that water impoundments for reusing or recycling larger volumes of water typically associated 

with CWT would no longer require a lengthy permit process. (Under the new rule, the technical 

requirements for the impoundments were largely unchanged, but the lack of the regulatory delay 

has allowed operators to implement more recycling.) The importance of this change, as well as 

some of the new plants and technologies which benefitted from it, were discussed by operators 

and service companies at a Water Conservation and Recycling Symposium held by TXRRC 

Craddick in 2014.119

In evaluating the proposed ban, EPA itself makes a case for a pretreatment standard by outlining 

the problem that occurs when oil and gas completions need less water than that which is being 

produced from existing wells in Figure D-6 in the TDD (see below). The reduced demand in this 

scenario effectively rules out water reuse by other oil and natural gas companies. In areas with 

limited or no (Underground Injection Control) UIC disposal wells, the only solution may be long 

distance trucking of water to nearby states with UIC capacity. If ELGs are established by EPA, 

then oil and gas producers could treat the produced water and discharge qualifying waters to 

POTWs. The benefits of ELGs in this scenario compared to long distance trucking and UIC 

disposal are:

The creation of useable quality water for the POTW

Reduced air emissions, noise and dust from the elimination of truck traffic

Reduced road traffic from elimination of truck traffic and the associated improved safety and 

reduction of highway maintenance 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

60

Economic benefits from reduced costs to oil and gas operator that will allow longer lives for 

marginal wells.

Reduction of water disposed and associated potential environmental impacts

119 See Texas Water Conservation and Recycling Symposium at

http://www.rrc.state.tx.us/about- us/commissioners/craddick/water-recycling-symposium/

Indirect discharge, where wastewater is pretreated by a CWT and sent to a POTW, may be an 

effective option for hydraulic fracturing wastewater treatment (with restrictions on contaminant 

concentrations in the pretreated wastewater that is sent to a POTW).

Response 2-D

The commenter points out several advantages of utilizing CWT facilities as opposed to disposal 

via underground injection. One of the ways a UOG extraction facility may comply with the 

requirements in this rule is to send its wastewater to a centralized waste treatment facility. As 

described in Response 2-A, the final rule does not affect EPA’s effluent limitations guidelines 

and standards for CWT facilities that appear at 40 CFR Part 437, and therefore does not affect 

the ability of CWT facilities to accept oil and gas extraction wastewaters and discharge those 

wastewaters directly to waters of the U.S. or indirectly to POTWs.

Comments
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

61

EPA-HQ-OW-2014-0598-0847 (PALMER pg 1)

I agree with EPA that prohibiting discharge of unconventional oil and gas wastewater to most 

Publicly Owned Treatment Works, but those facilities and industrial treatment plants discharging 

to a saline environment and have advanced treatment technologies should be permitted.

Response 2-E

Commenter suggests that facilities and industrial treatment plants having advanced treatment 

technologies that discharge to a saline environment should be permitted to continue doing so. 

The final rule does not affect the ability of industrial treatment plants (such as CWT facilities) 

that are currently permitted to discharge to saline environments to continue doing so. The final 

rule does not alter the ability of POTWs that discharge to a saline environment to continue to do 

so either. EPA also notes that the final rule does not alter the ability of CWT facilities to accept 

unconventional oil and gas extraction wastewaters and to subsequently indirectly discharge those 

treated wastewaters to POTWs. Instead, the rule prohibits the indirect discharge of 

unconventional oil and gas extraction wastewaters to POTWs. For a discussion of EPA’s 

rationale for this requirement as well as why EPA rejected other approaches, see Section VI of 

the final preamble. 

Comments

EPA-HQ-OW-2014-0598-0847 (PALMER pg 1)

Sewage treatment plants should not be burdened with treating toxic oil and gas wastewater when 

they were never designed to do so. Many industrial facilities have excess capacity like the 

DuPont facility in Deepwater NJ as an example could be considered. We know some oil and gas 

operators have sent their wastewater to these plants and it can be one tool in the tool box for 

proper treatment.

Response 2-F

EPA agrees that sewage treatment plants should not be burdened with treating toxic wastewater 

when they were never designed to do so. As stated in the final preamble and elsewhere in the 

record supporting the final rule, POTWs are not an appropriate management option for 

unconventional oil and gas extraction wastewaters, since various pollutants contained in those 

wastewaters are not amenable to treatment in POTWs. Furthermore, as demonstrated by the 

record, zero discharge of pollutants from UOG extraction facilities to POTWs is clearly available 

and economically achievable to the UOG extraction industry as a whole and will not result in 

incremental non-water quality impacts. 

EPA is aware that some UOG extraction facilities send their wastewater to centralized waste 

treatment facilities. Sending wastewater to a CWT facility is one of several ways a UOG 

extraction facility may comply with the requirements in this rule. In addition, EPA is aware that 

industrial facilities may in some cases accept waste from off-site for treatment along with

wastewater generated from their industrial operations, consistent with their NPDES permits or 

control agreements.
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

62

Timing of the Proposal

Comments

EPA-HQ-OW-2014-0598-0953 (API pg 42)

The proposed standards are also premature and illogically isolate a single treatment option from 

a larger wastewater management regime that is under review by the Agency. API therefore 

requests that EPA withdraw this proposed rule, conduct a legally sufficient analysis, and, if a 

new proposal is deemed necessary, issue that proposal in conjunction with the CWT proposal 

EPA is planning to publish.

Response 2-G

EPA disagrees with comment that the proposed pretreatment standards are premature and 

illogically isolate a single treatment option from a larger wastewater management regime. The 

proposed rule affects only one subpart of the oil and gas effluent limitations guidelines and 

pretreatment standards. Data available to EPA at the time of proposal indicates that POTWs are

not currently being utilized to manage unconventional oil and gas extraction wastes. No data was 

provided during the public comment period to indicate that this is not the case. Finalizing a zero 

discharge pretreatment standard for unconventional oil and gas extraction wastewaters aligns 

with the current standards in place for direct dischargers and is appropriate given the reasons 

described in the preamble to the final rule, elsewhere in the comment response document and in 

the rulemaking record. Promulgating a zero discharge pretreatment standard for unconventional 

oil and gas extraction wastewaters will not adversely affect the ability of the industry to manage 

these wastewaters, since industry is not currently sending its wastewaters to POTWs, and other

management practices are available, including use of injection wells, recycling and reuse, and 

transfer to CWT facilities. EPA’s analysis supporting the final rule is legally sufficient. See the 

preamble to the final rule for a description of EPA’s consideration of the factors required under 

the Clean Water Act and various statutory and executive order reviews. See Response 1-A;

Response 1-B; Response 1-C; Response 1-M; Response 2-A; Response 2-B. 

Comments

EPA-HQ-OW-2014-0598-0951 (IPAA pg 2)

recommend that EPA withdraw the current proposed pretreatment ELG for UOG extraction 

waste water, that it conduct a thorough review of actual waste water management technologies, 

that it determine best available technology economically achievable (BATEA) and new source 

performance standards based on these technologies, and that it then re-propose an appropriately 

revised pretreatment ELG. 

Response 2-H
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

63

EPA disagrees with the commenter’s recommendation that EPA withdraw the pretreatment 

standards in this final rule. Contrary to the commenter’s characterization, EPA has in fact

conducted a thorough review of wastewater management technologies applicable to oil and gas 

extraction wastewaters. See the TDD and the supporting documents contained in the rulemaking 

record for relevant discussion. EPA has also assessed best available technology economically 

achievable and best available demonstrated control technology (applicable to new source 

performance standards) based on the relevant statutory factors in establishing the PSES/PSNS 

requirements in this final rule. See Response 1-A; Response 1-B; Response 1-C; Response 1-F;

Response 1-M; Response 1-P; Response 1-Z.

Comments

EPA-HQ-OW-2014-0598-0941 (AXPC pg 6)

History and experience tells us a categorical ban on the practices of a dynamic and innovative 

industry will have unanticipated and unfortunate consequences. We respectfully request EPA 

abandon this arbitrary and capricious rulemaking and preserve for our industry and our country a 

water management option which may one day prove to be indispensable. 

Response 2-I

EPA does not agree that the rulemaking is arbitrary and capricious or that it will have 

unanticipated and unfortunate consequences. The commenter provided no examples of where 

previously promulgated zero discharge pretreatment standards have provided such unanticipated 

and unfortunate consequences. As demonstrated by the record, and as required by the CWA, the 

final rule is available and economically achievable to the UOG industry and results in no 

incremental non-water quality impacts. See Response 1-A.

General: Need for Federal Pretreatment Regulations

Comments

EPA-HQ-OW-2014-0598-0953 (API pg 15)

Far from justifying a one-size-fits-all categorical ban, the experience in Pennsylvania 

demonstrates that state regulators and local POTWs can address pass-through and interference 

risks where they arise without resorting to blanket bans.

Response 2-J

EPA does not agree that national pretreatment standards are not appropriate. Section 307(b) of 

the Clean Water Act authorizes EPA to issue pretreatment standards for discharges of pollutants 

from existing sources to POTWs. Section 307(c) of the CWA 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. EPA determined that national pretreatment standards are appropriate for 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

64

this industry for a number of reasons, including that the wastewaters contain pollutants, such as 

TDS that would pass-through and interfere with POTW operations. See Section XIV of the 

preamble to the proposed rule for a discussion of EPA’s rationale for proposing (and finalizing) a 

zero discharge pretreatment standard.

Comments

EPA-HQ-OW-2014-0598-0941 (AXPC pg 2)

An isolated occurrence in a single state and shale play does not constitute a national trend which 

warrants the one-size-fits-all regulatory response in EPA’s O&G ELG Rule. 

Response 2-K

EPA is not finalizing a zero discharge pretreatment standard because of any one isolated 

occurrence in a single state. Rather, EPA is finalizing a zero discharge pretreatment standard 

because of the reasons discussed in the preamble to and the record for the final rule. 

Comments Regarding Potential Impacts on Water Availability

Comments

EPA-HQ-OW-2014-0598-0953 (API pg 1)

We therefore oppose the permanent removal of an option that has the potential, with improved 

technology, to become a valuable tool for recycling treated water and returning this important 

resource to the hydrologic cycle. In a dynamic, innovation-driven industry like energy, we 

should not shut the door on technological improvements that have the potential to pay 

environmental and economic dividends for years to come.

EPA-HQ-OW-2014-0598-0953 (API pg 9)

Prohibiting present and future wastewater management options will not further environmental 

protection or improve water quality. Instead, it is likely to limit water availability – already an 

important issue that is likely to become even more significant in the future.

Response 2-L

All comments under Section 2.5 “Comments Regarding Potential Impacts on Water 

Availability,” are addressed by the following response.

EPA does not agree that this rule will limit water availability. This rule establishes zero 

discharge of pollutants from UOG extraction facilities to POTWs. As explained in Section VI of 

the final preamble, facilities have multiple approaches to achieve this requirement. If concern 

over water availability exists, available approaches exist by which water can be returned to the 

hydrologic cycle or diverted to beneficial reuse. First, an increasing volume of UOG extraction 

wastewater is being reused to fracture another well. Second, nothing in this rule prevents a UOG 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

65

extraction facility from providing its wastewater for re-use as this rule does not define ways in 

which UOG extraction wastewater may be re-used. Whether the wastewater is to be re-used in 

fracturing another well or in some other manner, discharge to a POTW is not a pre-requisite for 

the ability to re-use this wastewater. Third, facilities could transfer the wastewater to a CWT 

facility for subsequent treatment and discharge and/or for subsequent return to UOG extraction 

facilities for re-use in fracturing another well. Fourth, UOG facilities may evaporate the 

wastewater on-site or at a CWT facility which returns it to the water cycle. 

EPA also does not agree that the final rule will not further environmental protection or improve 

water quality. Although EPA is not aware of any current indirect discharges of unconventional 

oil and gas extraction wastewaters to POTWs, the final rule will prevent any such occurrences in 

the future. The final preamble and the rulemaking record contain several documented impacts 

resulting from such discharges when they did occur. 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

66

3.0 DATA USED TO SUPPORT THE RULE

Dataset Availability or Limitations

Comments

EPA-HQ-OW-2014-0598-0953 (API pg 4)

it is unclear how effectively this standard would work at the national level because it relies on a 

limited data set consisting largely of regional data (from mainly 2 of the nation’s many geologic 

plays) and predominately focused on centralized waste treatment facilities (CWTs). 

Response 3-A

EPA does not agree that the data set compiled to support this final rule is limited nor that it is 

focused on CWT facilities. EPA had extensive data for proposal and has augmented its data set 

since the time of proposal. As shown in the final TDD, EPA has extensive data on the industry 

including, but not limited to, the following:

 Number of active U.S. onshore drilling rigs by trajectory (i.e., vertical, directional, 

horizontal) and product type (oil, gas) over time for the period 2000 to 2016 [See TDD 

Section B.3.1].

 UOG potential (i.e., number of UOG wells that may be drilled in the future) based on 

estimated ultimate recovery by well (EUR) and technically recoverable resources (TRR)

[See TDD Section B.3.2].

 Current and projected UOG well completions [See TDD Section B.3.3]

 Fracturing fluid characteristics, including volumes and composition [See TDD Section 

C.1].

 Drilling wastewater volumes generated per well for eleven different UOG formations

[See TDD Table C-6].

 Produced water volumes generated by UOG formation for 48 formations. This data set 

contains over 61,000 data points [See TDD Table C-9].

 UOG drilling wastewater and produced water characterization data. This data set contains 

over 86,000 data points for produced water characterization for 35 formations and 25 

basins [See TDD Tables C-11, C-13, C-15, C-17, and C-19].

 Number and distribution of active Class II disposal wells across the United States, which 

shows there are over 26,000 active wells [See TDD Table D-2].

 Reported recycle and reuse practices, expressed as a percent of total produced water 

generated, for over a dozen UOG formations across the United States [See TDD Table D4].

 Number of CWT facilities accepting or that plan to accept UOG wastewater by state. The 

data indicate there are 74 facilities located in nine states that currently accept UOG 

wastewater, with an additional 15 facilities planned [See TDD Table D-7].

Prior to the proposal, EPA conducted extensive outreach to identify cases where producers are 

currently sending unconventional oil and gas extraction wastewater to POTWs. In the proposal, 

EPA explained it had not found any such cases at that time – and specifically solicited comment 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

67

on this finding. Significantly, no commenters provided data or information during the comment 

period to suggest that producers are currently sending UOG wastewater to POTWs, nor did EPA 

identify any new information following proposal to change its finding. As a result, EPA has 

concluded that since producers are not currently using POTWs to manage these wastewaters, 

other management alternatives are available and will continue to be available in the future. This 

supports EPA’s decision to establish a zero discharge pretreatment standard for these 

wastewaters. See the TDD and preamble Section VI.B (option selection discussion).

Finally, EPA notes that it need not have perfect information to make regulatory decisions under 

the Clean Water Act. See e.g., Texas Oil & Gas Ass’n et al v. US EPA, 161 F.3d 923, 934 (5th

Cir. 1998) (Upholding EPA’s use in an effluent guidelines rulemaking for oil and gas facilities 

of information about older facilities to represent pre-1980 wells. An agency’s choice to proceed 

on the basis of ‘imperfect information’ is not arbitrary and capricious unless ‘there is simply no 

rational relationship’ between the means used to account for any imperfections and the situations 

to which those means are applied. Am. Iron & Steel Inst. v. EPA, 115 F.3d 797, 1004 (D.C. Cir. 

1997)(citation omitted). See also, Sierra Club, 167 F.3d at 658, 662 (D.C. Cir. 1999)(In areas 

implicating technical expertise and judgment, courts do not require ‘perfect stud[ies]’ or data. 

Cited in EDC v. EPA, 344 F.3d 832, 969 (9th Cir. 2003)).

Comments

EPA-HQ-OW-2014-0598-0953 (API pg 4)

First, with respect to data considerations, it is unclear why EPA would risk basing a rule on an 

extremely limited, largely regional dataset consisting mainly of CWT data when EPA itself is 

currently conducting a study of CWTs expected to yield expanded data.

It is unclear how necessary or effective this rule is nationwide because the very limited largely 

regional dataset underlying this proposal relies heavily on CWT data and portrays a very limited 

snapshot of CWTs, and an even more limited view of POTWs. The data collected in the CWT 

study is very likely to contain information relevant to the present rulemaking (including 

additional information on the feasibility of treating pollutants associated with produced water) 

and would further likely further reveal additional important information on costs associated with 

CWTs and the level on which the UOG extraction industry relies on CTW facilities. Since this 

expanded dataset is expected to be far more nationally representative after the forthcoming CWT 

study, we urge EPA to withdraw this proposed rule and reconsider the question of a pretreatment 

standard until after that study has been issued.

Response 3-B

EPA does not agree that the final rule relies on an extremely limited, largely regional dataset. 

EPA’s proposal contains information on wastewater characteristics from a variety of formations 

around the county. Since proposal, EPA has collected additional wastewater characterization 

data, as described in the TDD (see DCN SGE 01188). New characterization data includes 

updated data from the United State Geological Survey (USGS) National Produced Waters 

Geochemical Database which primarily consisted of additional tight oil and gas produced water 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

68

data (DCN SGE01260). EPA also added characterization data points from the Marcellus, Eagle 

Ford, and Barnett shale formations from miscellaneous references (DCN SGE01165). As a 

whole, EPA’s wastewater characterization dataset consists of over 86,000 data points 

representing 35 UOG formations in 25 basins across the country. These data indicate that 

wastewaters from unconventional oil and gas formations contain a variety of pollutants, at 

varying concentrations, that are not amenable to treatment at a POTW. See Response 3-A for 

discussion of additional data contained in the record. 

EPA also does not agree that the dataset consists primarily of data from CWT facilities, and that 

EPA’s data on CWT facilities portrays a very limited snapshot of the CWT industry. While this 

rule does not apply to discharges from CWT facilities, EPA collected information on CWT 

facilities because producers currently use CWT facilities to manage produced water. EPA notes 

that it collected information not just on CWT facilities, but on all practices that producers 

currently use to manage UOG wastewater. This includes Class II disposal wells, recycle/reuse, 

and zero-discharge practices such as evaporation. EPA collected data on a number of CWT

facilities that accept unconventional oil and gas extraction wastewaters. These data show that a 

small, but in some geographic areas increasing, portion of the UOG industry transfers its 

wastewater to CWT facilities. This further supports that this is one approach available to comply 

with the requirements in this final rule. As explained above, producers also utilize a variety of 

wastewater management practices other than indirect discharge to POTWs, including 

recycle/reuse and underground injection. See the preamble and the TDD for a fuller discussion of 

other approaches to comply with the zero discharge requirements of the final rule. 

As described in responses contained in Section 2.0 of this document, EPA does not agree that 

promulgating the pretreatment standards should be delayed until EPA completes its study of the 

CWT industry nor that costs associated with treatment at CWT facilities would lead EPA to 

conclude that the requirements in this rule do not reflect PSES/PSNS. Courts have held that EPA 

can tackle part of a problem even if it is not yet ready to tackle everything. See e.g., City of Las 

Vegas v. Lujan, 891F.2d 927 (D.C. Cir. 1989) (“agencies have great discretion to treat a problem 

partially (“we [sh]ould not strike down [a regulation] if it [is] a first step toward a complete 

solution.”). The PSES/PSNS requirements in this rule were not based solely on use of CWT 

facilities for wastewater disposal – but rather, were based on zero discharge management options 

including underground injection and reuse/recycling of wastewater, which EPA found to be both 

available and economically achievable, based on current industry practice. There is no 

information in the record to suggest that these wastewater management alternatives will not 

continue to be available into the future – irrespective of any future action EPA takes with respect 

to CWT facilities. Data in the record indicates that the costs of wastewater management at CWT

facilities (not including transportation) range from $2.20 to $11 per barrel (see DCN SGE01186). 

Comments

EPA-HQ-OW-2014-0598-0953 (API pg 31)

In sum, the proposed rule did not sufficiently characterize the pollutants in UOG extraction 

wastewater. EPA’s ability to do so was significantly constrained by limited data and sampling 

results that demonstrated how significantly UOG extraction wastewater varied regionally, 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

69

between and within formations, and over time. This variability should have caused the Agency to 

recognize that the UOG extraction industry is not amenable to a single uniform categorical 

pretreatment ban that ignores the variability.

For TDS, the only pollutant discussed at length and seemingly the only pollutant justifying the 

proposal, EPA acknowledged and then overlooked all regional and temporal variability, cited to 

the highest TDS concentration, and ignored all sampling results with TDS concentrations at 

levels that would not interfere with POTWs or cause them to exceed their NPDES permits. Such 

an arbitrary and capricious portrayal of the data and its limitations is not permitted under the 

CWA.

Response 3-C

EPA disagrees with the commenter’s suggestion that in order to justify establishment of a 

categorical pretreatment standard, EPA is required to demonstrate that UOG wastewater 

discharges to the POTW would “cause them to exceed their NPDES permits.” As discussed in 

Response 1-M, this is not the applicable test for determining pass through for purposes of 

establishing categorical pretreatment standards. Rather, in assessing the need for categorical 

pretreatment standards, EPA compares the percent removal by the candidate treatment 

technology with the percent removed by a well-operated POTW using secondary treatment. 

Further, EPA does not agree that the data contained in the record do not sufficiently characterize 

UOG wastewaters for purposes of assessing pass through and interference. EPA also notes that 

industry did not provide any additional sources of data to augment EPA’s data. See Response 

3-A and Response 3-B for discussion of EPA’s data set. While EPA acknowledges that there is 

certainly variability in characteristics of UOG wastewaters across basins, and that characteristics 

of wastewaters can vary over time from a given well, this does not mean that EPA cannot 

establish national pretreatment standards for these wastewaters given the available data. EPA 

does not need data from every basin to establish that UOG wastewaters contain pollutants, such 

as TDS, that are not amenable to treatment at POTWs because EPA’s record reflects that 

POTWs do not have technology in place to remove TDS, regardless of the level present. The 

data in the record demonstrates that UOG wastewaters contain TDS and other pollutants, which

pass through POTWs untreated. Data in the record includes specific examples of situations in 

which POTWs had accepted UOG wastewaters, and pollutants passed through the POTW and

were discharged to the receiving water (see DCNs SGE00748; DCN SGE00767; DCN 

SGE00982; DCN SGE01002; DCN SGE01183). These discharges can cause or contribute to a 

number of human health and ecological impacts. For example, discharges of bromide have been 

documented to cause disinfection by-product formation in downstream drinking water treatment 

plants (see SGE00313; DCN SGE00535; DCN SGE00985; DCN SGE001209; DCN 

SGE01232). Also see Section VI.B.3 in the final preamble for additional discussion of EPA’s 

finding of pass through. Moreover, while not agreeing that EPA did not take into account 

variability in wastewater in assessing pass through, even if – as the commenter suggests – it did, 

to the extent that there are POTWs that can remove the pollutants of concern from UOG 

wastewater, EPA’s regulations authorize removal credits to operators for removals achieved by 

the POTW. See Response 1-F; Response 4-G.
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

70

Comments

EPA-HQ-OW-2014-0598-0951 (IPAA pg 8)

Third, EPA’s action hinges on its assumptions that UIC capacity will continue to be a viable and 

cost effective option for all UOG extraction waste waters. Yet, its supporting material for this 

conclusion is thinly substantiated. One of its cited documents – DCN SGE00613 – is a Meeting 

Summary from a February 2013 meeting with industry representatives. IPAA was a participant 

in the meeting. EPA deduces from this document that “EPA does not have any data to 

demonstrate that UIC capacity nationwide will be expended and that this current management 

approach will not be available in the future.” This meeting never delved into a deep discussion 

that would yield such a conclusion; it was a general briefing to describe the nature of oil and gas 

extraction, the technologies that manage waste water for disposal or reuse, and the cost 

effectiveness of various waste water treatment to manage TDS. The text of the document states: 

There is no widespread discussion in the industry about lack of injection for disposal capacity 

but one area that tends to have lower capacity is the Marcellus region. This is because the states

of Pennsylvania and West Virginia require produced water be disposed of in the zone from 

which it was removed or deeper. Because of its depth, disposal into zones deeper than the 

Marcellus shale is not feasible. 

If anything, this document emphasizes the limitations in certain regions regarding the availability 

of injection wells. But, it is clearly not a robust assessment of future UIC capacity. EPA also 

references issues regarding future UIC capacity based on a second document – TDD Chapter 

D.21 – by stating: 

Consequently, while the UOG industry continues to grow and new wells are being fractured, the 

need for UIC capacity for UOG extraction wastewater is decreasing, even in geographic 

locations with an abundance of UIC capacity. 

However, this document does not assess future capacity issues; it merely reports on the current 

number of Class II disposal wells. 

Industry sees a different and much less certain picture of future UIC capacity. 

One, as EPA reports, but later ignores, there are some areas where UOG extraction is intense –

such as the Marcellus Shale – where UIC capacity does not exist. 

Two, because UOG extraction well waste water cannot be reinjected for oil or gas recovery, this 

waste water must be sent to UIC disposal wells or managed. As a result, there will be pressure to 

expand existing disposal wells or drill new ones. 

Three, EPA discounts this pressure by emphasizing waste water recycling/reuse. Recycling and 

reuse are viable and valuable but they are not a panacea. Real limits on recycling/reuse include 

the pace of new well development, the proximity of new wells to the waste water, the adequacy 

of water volumes in a specific area and the contaminant levels in the water. Moreover, as certain 

fields become more production-focused, as opposed to having aggressive active exploration, 

 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

71

there are greater needs to manage produced water and even fewer opportunities to recycle/reuse 

it for fracturing operations. As such, recycling/reuse activities are not only driven by the intensity 

of drilling activities in a certain resource play but by its stage of development. As time 

progresses, the Marcellus Shale, for example, will experience an even greater need for disposal 

options. 

Four, in the time period that EPA has been developing this ELG proposal, the regulatory 

framework for Class II UIC wells has been subjected to new challenges, particularly for disposal 

wells. As environmental fossil energy/fracturing opponents have failed to show that state 

regulated fracturing presents unmanageable environmental risks, they have turned to other 

elements of unconventional oil and gas production. One of these is UIC disposal. Over the past 

several years issues related to triggered seismicity have been imputed to UIC disposal wells. 

These allegations threaten new well permits and existing operations whether caused by technical 

regulatory constraints or local opposition. Similarly, EPA initiated a review of the process that 

states use to exempt aquifers from regulation under the SDWA. Aquifers related to oil and gas 

extraction have historically been excluded from the SDWA scope but if changes are made to 

areas that are possible disposal sites, future UIC options could be diminished. Primacy 

delegation under the SDWA is being challenged. Efforts are active to stir up opposition to waste 

water movement from one state to another. Collectively, these challenges to UIC Class II 

disposal options can limit future capacity at a time when assumptions about reuse must be 

cautious not ebullient. 

Consequently, EPA’s reliance on the past success of UIC to serve as the basis for a zero 

discharge ELG is misplaced. 

1 Technical Development Document for Proposed Effluent Limitations Guidelines and Standards 

for Oil and Gas Extraction, EPA-821-R-15-003, March 2015.

2 Technical Development Document for Proposed Effluent Limitations Guidelines and Standards 

for Oil and Gas Extraction, EPA-821-R-15-003, March 2015

Response 3-D

First, EPA clarifies that it did not consider “viability” and “cost effectiveness” in establishing the 

PSES/PSNS requirements in the final rule, as neither of these are requisite statutory factors for 

assessing BAT/BADCT. Rather, EPA considered the statutorily-specified factors including 

technological availability and economic achievability for BAT (see CWA Section 304(b)), and 

availability and costs of achieving effluent reduction for BADCT (see CWA Section 306).

To the extent that the commenter is suggesting that EPA failed to support its finding regarding 

availability of zero discharge practices, given the commenter’s assertions regarding limitations 

on UIC capacity, EPA notes that there are a number of wastewater management practices 

available, with injection wells being but one. EPA acknowledges that the availability of specific 

UOG wastewater management practices can vary by location. For example, some areas may 

have limited injection well capacity due to geologic constraints. The commenter notes that, for 

example, options for injection may be limited in Pennsylvania and West Virginia. EPA also 

acknowledges that the capacity for reuse in subsequent well development can vary over time and
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

72

location. However, industry has a number of practices available to manage wastewaters. These 

include underground injection, recycle/reuse in well development, management at CWT

facilities, on-site evaporation/crystallization or other zero-discharge technologies, transfer to 

other producers, temporary storage, and beneficial reuse (under 40 CFR 435 Subpart E), The 

limited availability of one wastewater management practice at a particular location (e.g., 

proximity to injection wells) does not preclude the use of other practices (e.g., management at a 

CWT facility). In fact, the expansion of the CWT industry in Pennsylvania is an example of 

where the market has responded by increasing capacity of one management practice (CWT 

facilities) where another management practice (injection wells) is currently limited.

The commenter states that EPA’s notes in DCN SGE00613 regarding UIC capacity prepared 

from a meeting held with stakeholders is not a complete assessment of UIC capacity. EPA agrees 

that these meeting notes are not a complete assessment of UIC capacity. These notes were not 

intended to be a complete assessment of UIC capacity. Rather, these notes summarize 

information provided by stakeholders describing their experience with specific UOG wastewater 

management practices. EPA’s discussion of the availability of the selected PSES/PSNS for the 

final rule can be found in the preamble to the final rule, and EPA’s analysis supporting this 

decision can be found in the record (see the TDD). 

The commenter states that EPA’s notes from this meeting emphasize the limitations in certain 

areas regarding the availability of injection wells. EPA does not disagree that currently there are 

few UIC wells located in some areas of the country where UOG extraction is occurring. 

However, this is not the case in other areas of the country, where UIC wells are readily available. 

As stated earlier operators can and do utilize other wastewater management practices (such as 

CWT facilities, or recycle/reuse) in those locations, or else truck their wastewater further to UIC 

wells. Limited UIC capacity is not representative of the industry as a whole.

The commenter states that EPA does not assess future (UIC) capacity issues in its TDD and only 

reports on the current number of Class II disposal wells. EPA notes that data does not exist to 

determine the future number of Class II disposal wells and capacity of these wells. EPA also 

notes that commenter did not provide any data or their own assessment of what future UIC 

capacity may be or how it differs from current UIC capacity. In the absence of additional data

suggesting otherwise, it is reasonable for EPA to conclude that disposal in Class II disposal wells 

will continue to be available in the future.

The commenter further states that they see a different and much less certain picture of future UIC 

capacity. However, as previously stated, commenter provided no data or any analysis to 

substantiate this claim and therefore EPA does not agree that injection via Class II disposal wells 

will not be available in the future. See Response 1-C; Response 1-CC.

The commenter states that EPA reports, but later ignores, that there are some areas where UOG 

extraction is intense – such as in the Marcellus Shale – where UIC capacity does not exist. First, 

EPA acknowledges that there are areas where UOG extraction is occurring but where there are 

few Class II disposal wells in close proximity. However, EPA disagrees with the statement that 

UIC capacity does not exist. Wells do exist, they just may not be located in close proximity to 

UOG wells in these areas. Disposal via Class II disposal wells is still available for managing 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

73

wastewater from these wells; it would simply require additional trucking of the wastewater to the 

UIC wells. This is one practice that operators in the Marcellus shale currently employ to manage 

their UOG extraction wastewater (DCN SGE00279; DCN SGE00275; DCN SGE00283; DCN 

SGE01182.A03). Moreover, as stated earlier in this response, there are multiple wastewater 

management practices available to producers, with disposal via Class II disposal wells being only 

one. In fact, the Marcellus Shale is an example of where UOG operators are using zero discharge 

practices in addition to underground injection. Since there are few Class II disposal wells located 

in certain areas of that play (such as in Pennsylvania), and UOG operators have not been sending 

wastewater to POTWs for disposal, they have been trucking their wastewater to injection wells 

that are further afield or using other practices besides injection -- thus indicating that the 

technology practices to meet a zero discharge pretreatment standard are available even to 

producers lacking UIC disposal wells in close proximity.

Commenter states that UOG extraction wastewater cannot be reinjected for oil and gas recovery 

and therefore must be sent to UIC disposal wells or managed. If commenter is referring to use of 

UOG extraction wastewater for enhanced recovery, EPA disagrees that UOG wastewater cannot 

be utilized in this manner because there is nothing in the UIC regulations prohibiting enhanced 

recovery for UOG wells. It may be true that UOG wastewater is not currently being used for 

enhanced recovery. This is not particularly surprising since the industry suggests this is the case,

due to the fact that UOG wells are not currently stimulated in this way and the enhanced 

recovery demand of other wells are generally met through closed-loop systems with existing 

non-UOG wells (see TDD Chapter D.2). EPA agrees that if enhanced recovery techniques are 

not being utilized in certain areas, then wastewater generated in that area cannot be feasibility 

utilized for that purpose because there is no such demand. However, there is nothing preventing 

operators from using UOG extraction wastewater for enhanced recovery in the future if those 

opportunities do arise. In the meantime, the wastewater could be managed via other methods 

(such as injection for disposal, transfer to a CWT facility, or recycle/reuse in fracturing UOG 

wells).

The commenter states that wastewater recycling/reuse is not a panacea, and there are limits on 

recycle/reuse due to factors such as well development, the proximity of the wastewater to new 

wells, and the volume and quality of water available and that these factors may change as a 

particular field becomes more developed. EPA has not stated that wastewater recycling/reuse is a 

panacea. Rather, EPA has based PSES/PSNS on the availability of a variety of wastewater 

management strategies including, but not exclusively, recycle/reuse. The commenter states that 

recycling/reuse may have limitations in certain cases. The commenter’s assessment of particular 

management practices in isolation is flawed because it does not acknowledge the availability of 

other wastewater management practices that EPA considered in assessing the availability of zero 

discharge wastewater management alternatives. EPA acknowledges that a particular wastewater 

management practice may have limitations in certain cases or in certain locations due to factors 

such as proximity of a particular UOG well to an injection well, but this does not preclude UOG 

operators from using other wastewater management practices in those cases, or utilizing injection 

wells that are available (although perhaps located at greater distance from the UOG well). The 

commenter has provided no data that would indicate that these other practices are not currently 

available or will not continue to be available in the future, or that would contradict EPA’s 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

74

determination that zero discharge is available for this industry and will continue to be available 

in the future.

The commenter states that the regulatory framework for Class II UIC wells has been subjected to 

new challenges, particular for disposal wells, since EPA began this rulemaking. EPA notes that 

there have been no changes to federal law that would affect the ability of UIC wells to continue 

to accept UOG wastewater, and that commenter’s speculative concerns about possible changes 

under the SDWA are not sufficient to support a finding that UIC well capacity will somehow 

become less available in the future. Commenter also states that because of factors such as 

induced seismicity and EPA’s review of the process that states use to exempt aquifers from 

regulation under the SDWA, new permits and existing operations may be affected (and thus UIC 

disposal capacity may be diminished). EPA notes that, to the extent that there are heightened 

concerns over induced seismicity, EPA’s UIC regulations authorize permit writers to include 

provisions to address seismicity where it presents a potential endangerment to underground

sources of drinking water. The commenter has provided no data to suggest that fewer Class II 

UIC disposal permits are being issued, or capacity is otherwise being limited, due to such 

concerns. Similarly, commenter’s speculative concerns with respect to the possible outcomes of 

EPA’s review of state aquifer exemption processes are not sufficient to support a finding that 

UIC well capacity will be limited in the future.

In summary, the commenter has taken a very narrow approach to evaluating UOG wastewater

management practices that are available to the industry. The commenter has selected two 

prevalent wastewater management practices (injection and recycle/reuse) and provided examples 

of where use of such practices may be limited in certain locations or in certain instances. 

However, the commenter has failed to acknowledge that there are a variety of wastewater 

management practices currently available to meet zero discharge, and that additional wastewater 

management practices may be developed in the future. The commenter further confounds their 

assessment of industry wastewater management practices by offering a one-sided discussion of 

factors that may limit current wastewater management practices in the future (e.g., maturation of 

the Marcellus play reducing the need for recycle/reuse, reduction in UIC capacity due to induced

seismicity) while failing to acknowledge that other factors may increase the availability of 

wastewater management practices in the future (e.g., increases in drilling and hydraulic 

fracturing, increased availability of CWT facilities, increased need for reuse/recycling of water 

due to water scarcity, etc.). Because there are multiple management practices available to 

producers, EPA has concluded that a zero discharge pretreatment standard is available and 

economically achievable as described in the preamble to the final rule and supported by 

information in the TDD and the record. See Response 1-C; Response 1-U.

Comments

EPA-HQ-OW-2014-0598-0941 (AXPC pg 4)

We note that the information presented in the proposed rule demonstrates that there are some 

UOG sources that have TDS within acceptable levels. Specifically, Table XII-1 in the proposal 

indicates that TDS in produced waters range as low as 320 mg/L in some areas. And, Table XII2 indicates that TDS concentration in produced waters range as low as 20 mg/L. Whereas Table 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

75

XV-1 indicates that adverse effects would not be expected in livestock unless concentrations 

exceed 2,000 mg/L; and Table XV-2 indicates that levels as high as 1,400 mg/L would be 

permissible for irrigation water. While we believe the data presented is cursory and that 

substantial additional research would be required to adequately evaluate this risk and establish an 

appropriate limitation for discharge to POTWs, EPA’s own proposed rule indicates that some 

sources of UOG wastewater would not pose a dissolved solids risk and/or could be treated to 

achieve TDS levels that are consistent with other discharges to POTWs. 

Response 3-E

The commenter points out that some data contained in EPA’s record indicates that some UOG 

produced waters have TDS levels that are lower than values reported in Table XV-1 of the 

proposed rule preamble, indicating that the water quality may be appropriate for use for livestock 

watering. EPA notes that the final rule does not alter the ability to obtain a permit to directly 

discharge produced water for livestock watering and other beneficial reuse consistent with the

requirements of 40 CFR 435 Subpart E. To the extent that the commenter is suggesting that the 

final rule should have allowed for discharge of TDS below the thresholds contained in Table 

XV-1 of the proposed rule preamble because this would not pose a dissolved solids risk, EPA 

disagrees. First, EPA notes that effluent guidelines and pretreatment standards are technologybased, not risk-based. That means, as specified by the statute, the requirements reflect the 

capability of the PSES/PSNS technology basis to reduce pollutants and are not based on 

waterbody impacts. See Response 1-N.

Second, EPA’s pass through analysis shows that POTWs are ineffective at removing TDS (and 

pollutants measured in TDS); and thus achieve less pollutant removal than the 100% removals 

achieved by the BPT technology basis for direct dischargers. See Section VI.B.3 of the final 

preamble. As such, EPA appropriately found that all pollutants pass through and therefore a 

pretreatment standard was warranted. See Response 1-C; Response 1-F; Response 1-M; 

Response 1-P. 

Third, while EPA acknowledges that producers could pre-treat water to remove TDS and other 

pollutants prior to indirect discharge to a POTW, EPA has instead selected a zero discharge 

standard because it achieves greater pollutant reductions than a non-zero option, and is available, 

economically achievable and has no incremental and therefore no unacceptable non-water 

quality environmental impacts. See Section IV.B of the preamble for a discussion of the factors 

EPA considers in establishing PSES/PSNS. Also, see Section VI.B of the preamble for a 

discussion of EPA’s rationale for the final PSES/PSNS and for rejecting other approaches such 

as a non-zero numerical discharge standard. 

Comments

EPA-HQ-OW-2014-0598-0941 (AXPC pg 4)

EPA raises other potential pollutant issues such as organic and radioactive constituents but does 

not adequately evaluate the industry-wide range of these constituents, did not establish any risk

based levels, and did not show that treatment is technically and/or economically infeasible. 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

76

Response 3-F

As explained in the TDD, the record for this final rule is based on available data, including 

information provided by industry and various stakeholders. As a whole, EPA’s wastewater

characterization dataset consists of over 86,000 data points representing 35 UOG formations in 

25 basins across the country. Available data on organic and radioactive constituents from this 

dataset indicates that these pollutants can be present in UOG wastewaters. Furthermore, EPA is 

not basing the zero discharge pretreatment standard solely on the presence of organic and 

radioactive constituents in UOG wastewater. These are only examples of pollutants identified in 

UOG wastewaters. See the TDD for additional information on pollutants presents in UOG

wastewaters. Also see Response 3-A, Response 3-B, and Response 3-C for additional discussion 

of EPA’s data.

EPA disagrees that the record does not demonstrate that the final standards are technically and/or 

economically achievable. See Section VI.B of the final preamble and Response 1-A, Response 

1-B, Response 1-C, and Response 1-M.

EPA notes that because PSES/PSNS are technology-based requirements, EPA does not establish 

these standards on the basis of risk. See

Response 1-N.

Data Variability 

Comments

EPA-HQ-OW-2014-0598-0953 (API pg 30)

More importantly; however, the proposed rule’s citation to the highest TDS concentration ever 

sampled overlooks that sampling in other basins reveal exceptionally lower TDS concentrations -

concentrations that may be low enough to avoid potential POTW interference or pass-through at 

levels in excess of the POTW’s NPDES permit.

According to information provided by the Groundwater Protection Council, nearly one quarter of 

all formations have median TDS concentrations of 10,000 mg/L or less.89
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

77

89 http://www.gwpc.org/sites/default/files/event-sessions/15d_Harto_Chris_0.pdf (accessed 

6/30/15).

The U.S. Department of Energy has similarly identified basins where a large percentage of 

produced water has TDS concentrations of less than 9,999 mg/L:

Basin Name Percentage less than 9,999 TDS

Arkoma 23

Big Horn 79

Green River 65

Montana 86

Powder River 60

Wind River 7590

Private studies have also identified produced water with relatively low TDS concentrations. 

Once such study examining produced water in Wyoming found median TDS concentration levels 

in produced water to be 6,732 mg/L.91 Indeed, the data EPA used from the U.S. Geological 

Service’s produced water database shows 10 samples from five different basins with TDS 

concentrations lower than 5,000 mg/L, including one TDS concentration of 315 mg/L and one 

TDS concentration of 680 mg/L.92 EPA’s data on TDS concentrations in drilling wastewater 

indicate even lower TDS concentrations – 27% of samples had TDS concentrations of 3,200 

mg/L or less.93

90http://fracfocus.org/sites/default/files/publications/a_guide_to_practical_management_of_prod

uced_water_from_o

nshore_oil_and_gas_operations_in_the_united_states.pdf (accessed 6/30/15).

91 http://www.all-llc.com/publicdownloads/ALLConsulting-WaterTreatmentOptionsReport.pdf 

(accessed 6/30/15). Cited median reflects conversion from ppm calculation of median from 4 

TDS values.

92 56 DCN SGE00724.

93 56 DCN SGE00740.

Response 3-G
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

78

The commenter lists data from six basins with produced waters containing TDS concentrations 

less than 9,999 mg/L based on reports that rely on analysis of USGS Produced Water Database 

(DCN SGE01260). However, EPA’s review indicates that this data, as it is presented by the 

underlying reports in summary format, does not represent UOG extraction wastewater because 

the USGS database may contain data from UOG, coalbed methane (CBM), and conventional 

formations in each basin. For example, based on EPA’s analysis of the USGS database, the 

Powder River basin data only includes data for CBM and conventional wells and does not 

contain data from UOG wells (see DCN SGE01184 and SGE01177).

EPA acknowledges that TDS concentrations in UOG wastewaters can vary among formations 

and basins. However, the fact that UOG wastewaters in some basins or from some wells within 

basins may be lower or higher in TDS concentrations that others does not undermine EPA’s 

decision to promulgate a zero discharge pretreatment standard. As discussed in Response 1-M,

EPA does not have data – nor have commenters provided any such data – to suggest that POTWs 

can achieve removal of such constituents, certainly not to the level removed by the zero 

discharge technology bases underlying the requirements for direct dischargers. EPA’s record 

indicates that POTWs are designed to remove solids and organic material, not TDS, and that

POTWs do not incorporate technologies, such as reverse osmosis or distillation, which are 

required to remove TDS in UOG wastewaters. Therefore, despite variability in levels of TDS in 

UOG wastewater, EPA reasonably concluded that TDS and other pollutants of concern in UOG 

wastewater pass through POTWs untreated. See Section VI.B.3 of the final preamble for a 

discussion of pass through for purposes of determining PSES/PSNS. See also Response 1-F and 

Response 4-G regarding availability of removal credits for pollutant removals achieved by 

POTWs. See also Response 1-M.

Comments

EPA-HQ-OW-2014-0598-0967 (NE pg 3)

Noble also requests that EPA's evaluation include subcategories to incorporate regional 

variations in UIC well availability and regional exploration and production activity levels 

Response 3-H

EPA did not incorporate subcategories based on regional variations in UIC well availability and 

regional exploration and production activities as suggested by the commenter, as the commenter 

failed to provide a basis for subcategorization based on the relevant statutory factors. EPA’s 

record demonstrate that UOG producers do not send their wastewaters to POTWs, but rather 

manage this wastewater with a variety of other approaches regardless of regional variations in 

UIC well availability or regional exploration and production activities. The final requirements 

and underlying technology basis reflect current industry practices of zero discharge to POTWs, 

which EPA concluded was both available and economically achievable for the industry as a 

whole. See Section VI.B of the final preamble. 

Thus, given current industry practice, EPA did not subcategorize to reflect variations in UIC well 

availability or exploration and production activity, as these factors did not affect the availability 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

79

or achievability of zero discharge options. If for example a UIC well is not located in close 

proximity to a particular well, operators could re-use it in fracturing another well or transfer it to 

a CWT facility. As another example, where exploration and production may not lend itself to 

reuse/recycle to fracture another well, operators could dispose of it in a UIC well or transfer it to 

a CWT facility. Therefore, EPA reasonably applied the zero discharge requirements to the 

industry as a whole, without the subcategorization suggested by the commenter.

Comments

EPA-HQ-OW-2014-0598-0941 (AXPC pg 2)

While the highly publicized episode of discharge to POTWs in Pennsylvania was an isolated and 

unique event that ended almost as quickly as it began, EPA’s rulemaking appears to be largely 

based on evaluation of that water and ignores the fact that other unconventional waters could be 

treated to a quality consistent with other POTW influents. The POTW episode was a byproduct 

of injection well scarcity. By proposing an O&G ELG Rule which completely eliminates the 

possibility of discharging produced water to a POTW, EPA has painted all UOG operators and 

all shale plays with a broad and disparaging brush. Moreover, EPA unnecessarily risks depriving 

all UOG operators and the public of a produced water management option which may not be 

prevalent today but could be necessary tomorrow. 

Response 3-I

EPA does not agree with commenter’s characterization that discharges of UOG wastewater to 

POTWs was “an isolated and unique event that ended almost as quickly as it began.” As

described in Section D.5 of the TDD, EPA identified at least 20 POTWs that accepted UOG 

extraction wastewater from onshore UOG operators at some point in time. EPA’s information 

indicates that this occurred in Pennsylvania, New York and West Virginia. The first occurrence 

contained in EPA’s data was in 2006. EPA’s data indicate that this practice ended by 2011 (see 

DCN SGE01183; DCN SGE01182). These discharges lead to a variety of water quality

concerns, as described in the record. Therefore, commenter is incorrect that EPA’s rulemaking is 

based largely on information from those POTWs in Pennsylvania that previously received UOG 

wastewaters. EPA’s rationale for the rulemaking includes that information, but is also based on 

other factors as described in the preamble and the record, including prevention of potential

POTW pass through or interference in the future through codification of current industry best 

practice of zero discharge. EPA notes that the National Association of Clean Water Agencies 

(NACWA), whose membership includes POTWs nationwide, expressed support for the rule in 

their comments. See EPA-HQ-OW-2014-0598-1054.

The commenter states that the reason producers discharged UOG wastewaters to POTWs in 

Pennsylvania was because of injection well scarcity. EPA notes that producers could have 

utilized other approaches to manage wastewaters other than discharge to POTWs, such as 

sending wastewater to a CWT facility or reusing it in fracturing another well. As explained in the 

TDD and preamble, while POTW disposal may have been the least-costly option available at that 

time, all producers (regardless of local UIC availability) have since stopped discharging their 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

80

UOG wastewaters to POTWs, thus demonstrating that zero discharge approaches are available

and economically achievable. 

See Section VI.B of the preamble for a discussion of why EPA selected the final PSES/PSNS 

and why it rejected non-zero numerical standards (such as treating UOG wastewater to a quality 

consistent with other POTW influents as suggested by the commenter). Also See Response 

1-BB, Response 1-PP, and Response 1-GGG.

The commenter suggests that a zero discharge pretreatment standard may deprive UOG operators 

and the public with a produced water management option that may be necessary tomorrow. EPA 

agrees that the final rule zero discharge pretreatment standard will eliminate indirect discharge of 

pollutants from unconventional oil and gas extraction activities to POTWs as an option for 

managing UOG wastewater once effective. EPA does not agree that discharge of UOG pollutants 

to a POTW will be necessary in the future. Operators may continue to utilize other wastewater 

management alternatives, including injection, reuse/recycle or transfer to CWT facilities as those 

options are currently available. Furthermore, EPA has no data, nor did commenter provide any 

data, that would indicate that those options will not continue to be available in the future. After 

the final rule is effective, operators will be aware that indirect discharge to a POTW is not a 

viable option, and can therefore plan their exploration and production activities accordingly. See

Response 1-A; Response 1-B; Response 1-C; Response 1-D; Response 1-E; Response 1-F;

Response 1-U.

Comments

EPA-HQ-OW-2014-0598-0941 (AXPC pg 6)

EPA insists its rulemaking will have a de minims impact on the status quo, which might be true 

if the O&G ELG Rule were in fact a carefully considered regulation – not an indiscriminate 

prohibition - and accurately considered the variability of water quality within the industry it 

intends to regulate. 

Response 3-J

EPA disagrees that the final rule was not carefully considered. EPA has evaluated all factors as 

required by the Clean Water Act. See Response 1-A; Response 1-B; Response 1-C; Response 

1-M. EPA acknowledges that there is variability in water quality of UOG wastewaters and has 

considered such factors in developing a zero discharge pretreatment standard. See the TDD for 

data available to EPA describing wastewater characteristics across the country. See Response 

3-A; Response 3-B; Response 3-C; Response 3-G; Response 5-A.

Comments

EPA-HQ-OW-2014-0598-0997 (EUREKA pg 3)

It is important to recognize that there is extreme variability in wastewater composition generated 

in the various US shale plays. For example, the focus on reuse in the Marcellus and Utica Plays 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

81

in Pennsylvania has led to the generation of very high strength wastewaters that have 

concentrations of TDS that can exceed 300,000 ppm. The focus on reuse has also resulted in 

continued increases in the methanol and ammonia nitrogen concentrations in the wastewaters. 

These variations in wastewater compositions must be considered when deciding on the 

appropriate level of treatment or pretreatment; as well as the permitting required to support such 

treatment.

Response 3-K

EPA agrees that there is variability in UOG wastewater characteristics across the country, and 

that reuse of these wastewaters can increase the concentration of pollutants such as ammonia and 

methanol in wastewaters generated from wells where re-used wastewaters comprise a significant 

portion of the base fluid used to hydraulically fracture them. EPA agrees with commenter that 

these are important factors to be considered by producers in determining an appropriate 

wastewater management approach for such wastewaters including the level of pretreatment prior 

to reuse in drilling a subsequent well. In the event that a producer does not want to re-use the 

wastewater, producers have multiple management approaches to achieve zero discharge to 

POTWs including disposal in UIC wells and sending wastewater to CWT facilities. As explained 

in Response 3-C, EPA determined the final requirements are appropriate for all UOG 

wastewaters. 

The commenter suggests that this variability is also an important consideration with respect to 

permitting for “treatment.” EPA assumes that the commenter is referring to treatment for reuse

of UOG wastewater, and notes that any such permitting requirements for reuse of wastewater is 

not within the scope of the current rulemaking, which is limited to establishing pretreatment 

standards for discharge of UOG wastewater to POTWs. Permitting of discharges from CWT 

facilities is also not within scope of the current rulemaking.

Underground Injection Control Disposal Wells as a Technology Basis

Comments

EPA-HQ-OW-2014-0598-0953 (API pg 8)

If use of Class II disposal wells becomes restricted in parts of the country where they are 

currently commonly used, the emphasis may shift, at least locally, from use of Class II disposal 

wells and towards the use of treatment and either discharge or reuse.10

The proposed rule’s suggestion that UIC wells remain a top disposal option for industry is 

unrelated to water treatment is somewhat shortsighted as these wells are not necessarily available 

nationwide, nor is there long-term availability wholly within the control of the EPA. UIC wells 

are a viable option only where geologic characteristics favor necessary or optimal rates of 

injection. Additionally, these disposal wells are not currently available in all geographic areas

(e.g., in Pennsylvania), and access to these disposal wells may become restricted in ways largely 

outside of EPA’s control due to the prevalence of state primacy under the UIC system. For 

example, North Carolina has recently prohibited the use of injection wells for disposal of oil and 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

82

gas drilling waste.11 Other recent developments concerning UIC wells demonstrate reversed 

approvals of water disposal wells,12 controversial local bans on water disposal wells,13 the 

shutting down of disposal wells,14 and calls for federal review of state injection well approval 

programs,15 and more. These and other developments may reduce allowable injection volumes, 

to increase permitting costs due to enhanced geological and seismic modeling requirements, and 

to further restrict injection well locations such that transportation distances are substantially 

increased. Any or all of these changes would add costs and complexity to UIC disposal and 

thereby improve the economic viability of other management options as treatment for discharge.

Again, banning use of POTWs may seem to have little impact when examined in isolation and 

without regard to the availability of other produced water management options, but the future 

availability and desirability of those options are key factors in understanding the impact of 

EPA’s present proposal to ban use of POTWs.

While UIC wells have remained a viable option for the disposal of produced water, this option is 

not without controversy. Although properly sited UIC disposal wells provide a very safe and 

environmental responsible disposal option, UIC well use is under increased scrutiny and siting 

restrictions, and therefore it was inappropriate for the proposed rule to presume without any 

critical examination that UIC disposal capacity will always be widely available to the oil and 

natural gas industry. 

10 Id at pp. 8-71.

11 Hydraulic Fracturing: State Regulatory Roundup Vol. 36, FRACKING INSIDER 

(Sept. 4, 2014), http://www.frackinginsider.com/legislative/hydraulic-fracturing-stateregulatory-roundup-vol-36/.

12 DEP Reverses Decision Over Waste Water Disposal Well, NPR STATEIMPACT (Mar. 18, 

2015, 7:26 PM), http://stateimpact.npr.org/pennsylvania/2015/03/18/dep-reverses-decision-overwaste-water-disposal-well/.

13 Indiana County Township Claims Ecosystem Has Legal Rights, NPR STATEIMPACT (Dec. 

1, 2014, 6:00 PM), http://stateimpact.npr.org/pennsylvania/2014/12/01/indiana-county-townshipclaims-ecosystem-has-legal-rights/.

14 Plug-Back or Prove It: Oklahoma’s Anti-Earthquake Orders in Action, NPR STATEIMPACT 

(May 28, 2015, 11:23 AM), http://stateimpact.npr.org/oklahoma/2015/05/28/plug-back-or-proveit-oklahomas-anti-earthquake-orders-in- action/.

15 Julie Carr Smyth, Groups Ask for Federal Review of Ohio Injection-Well Program, WBKN 

FIRST NEWS 27 (Apr. 29, 2015 8:06 PM), http://wkbn.com/2015/04/29/groups-ask-for-federalreview-of-ohio-injection-well-program/.

Response 3-L

The commenter suggests that if use of disposal wells become restricted in certain areas where 

they are currently in use that the use of treatment and either discharge or reuse may increase. 

EPA agrees that if use of a particular injection well becomes restricted, a UOG producer may 

utilize other wastewater management approaches. This includes reuse and transfer to a CWT

facility. EPA notes that producers may also choose to haul their waste to a different disposal well
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

83

The commenter states that disposal wells are not available nationwide. EPA disagrees. As shown 

in Table D-2 of the TDD, EPA estimates that there were approximately 26,400 active Class II 

disposal wells across the United States (based on primarily 2012 and 2013 data). Disposal wells 

are available, however their proximity to a particular well may vary.

The commenter states UIC wells are not available in all geographic areas such as in 

Pennsylvania. See Response 1-A; Response 1-B; Response 1-C; Response 1-D; Response 1-E; 

Response 1-F; Response 1-U; Response 3-D; Response 3-I; Response 3-L; Response 3-T;

Response 3-NNN.

The commenter speculates on a number of factors that may alter or reduce availability of 

injection wells in the future. While EPA agrees that there are a number of factors outside of the 

control of EPA that may reduce availability of wells in certain areas in the future (such as state 

regulations or policies regarding use of injection wells, such as those mentioned by commenter 

in North Carolina), there are also a number of factors that commenter does not describe that may 

increase their availability in the future. This includes drilling of additional class II disposal wells, 

increased need for reuse for well stimulation or fracturing, increased competition from CWT

facilities as new ones are constructed, and increased efficiency in producers water management 

practices. Since disposal wells are not the only wastewater management practice available, but 

rather are but one of several alternatives available, factors such as restrictions on the availability 

of a particular disposal well in the future does not alter the availability of the PSES/PSNS 

technology basis of the final rule.

The commenter states that it is inappropriate for EPA to presume that UIC well capacity will 

always be widely available to the industry without a critical examination of UIC will capacity. 

EPA has conducted an analysis of UIC well capacity. Table D-2 in the TDD describes number 

and capacity of active Class II disposal wells across the county. Data is presented by state and by 

EIA geographic region. This table shows that the disposal capacity across the nation was over 1 

billion gallons per day (based primarily on 2012 and 2013 data). The number of wells and 

disposal rate does vary across the country. 

In addition to the snapshot of disposal wells across the country in Table D-2 of the TDD, EPA 

also analyzed historic volumes injected into Class II disposal wells over time. Figure D-5 of the 

TDD shows historic Class II disposal well injection volumes, total oil and gas production, and 

UOG production. The data shows how, nationally, annual Class II disposal well injection 

volumes increased from 1995 to 2012 as UOG production ramped up significantly over the same 

period. These data demonstrate how Class II disposal well availability was able to accommodate 

increased demand. EPA observed a similar trend in the Bakken shale formation in North Dakota 

as shown in Figures D-6 and Figure D-7 of the TDD.

While EPA acknowledges that the number of disposal wells and the disposal rate cannot be 

known in the future (either by EPA or by the commenter), as described in the preceding 

paragraphs there are a number of factors that may either increase or decrease the number, and by 

association the disposal capacity, in the future. However, at the time of promulgation of the final 

rule, disposal in Class II wells as well as other alternatives (such as reuse and transfer to a CWT

facility) are available nationwide, and EPA does not have data to suggest that this capacity will 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

84

necessarily be limited in the future. Further, as discussed above, the final rule does not require 

producers to dispose of their wastewater in a well. It requires zero discharge of pollutants to 

POTWs, which producers can meet through a number of other wastewater management 

alternatives. See Response 1-C; Response 1-U; Response 1-A; Response 1-B; Response 1-D;

Response 1-E; Response 1-F; Response 3-D; Response 3-I; Response 3-L; Response 3-T;

Response 1-CC; Response 3-NNN.

Comments

EPA-HQ-OW-2014-0598-0951 (IPAA pg 4)

Therefore, for at least some regions of the country the assumption that UIC capacity will be 

available is highly questionable. 

Response 3-M

See Response 3-L.

Comments

EPA-HQ-OW-2014-0598-0951 (IPAA pg 4)

The increase in disposal wells over the past several years has led to increased attention on these 

wells. Some have been alleged as causes of seismic events that result in challenges to their 

ongoing operations. In fact, as a part of efforts by fossil energy opponents, we have observed 

increasing attention to Class II well permitting and operation, the delegation process under the 

SDWA for state primacy of Class II wells, and even which aquifers can be considered eligible 

for injection. This clearly adversarial atmosphere on fossil energy will continue to threaten the 

ability to site and use disposal technologies – no matter how historically beneficial their record 

may be. 

Response 3-N

See Response 3-L.

Comments

EPA-HQ-OW-2014-0598-0951 (IPAA pg 5)

Third, while current capacity of Class II wells is adequate and should be capable of managing 

current volumes of produced water, expanded production will require additional capacity. 

Neither EPA nor industry can assess today whether that capacity can grow at a necessary rate. 

Nor can the cost of increasing capacity be readily projected. Additionally, current capacity also 

reflects the development of recycling projects that have consumed water volumes that would 

otherwise need disposal. We recognize that robust data on produced water management is 

difficult to obtain. 

However, some data can be indicative of future challenges. In April 2015, the Ground Water 
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85

Protection Council (GWPC) published a new report, Produced Water Volumes and Management 

Practices in 2012. The report looks at practices in 2007 and 2012 for managing produced water, 

of which 90 percent or more utilizes Class II UIC. Clearly, the report is looking at available data 

from both periods and the data are limited. Similarly, UOG development from 2012 to 2014 was 

significant and included more attention on reuse that would reduce UIC disposal. However, there 

are some points that are illustrative of the shifts that are beginning to occur. For example, in 

2007, the report indicates that 38.5 percent of produced water was injected for disposal. By 2012, 

the share of UIC for produced water disposal increased to 45.6 percent. This change can be seen 

in Oklahoma where 2,053 new permits for Class II UIC disposal wells have been issued since 

2005. Similarly, the number of Class II UIC disposal wells in Kansas has increased since 2005 

from 3561 to 5444. 

EPA’s analysis on the availability of Class II UIC falls well short of the rigor that should be 

applied. Consequently, it skews the decision toward a zero discharge conclusion without 

justification. 

Response 3-O

The commenter states that expanded production (of oil and gas) will require additional capacity 

(of injection wells). EPA notes that there are other wastewater management alternatives

available, such as reuse/recycle and transfer to a CWT facility, so commenter cannot know that 

increased injection capacity will be needed in the future. EPA agrees with commenter that 

neither industry nor EPA can know the capacity or cost of injection wells in the future. The 

commenter notes that data from the Ground Water Protection Council (GWPC) indicates that the 

percent of produced water disposed of via injection increased between 2007 and 2012. The 

commenter also notes that the number of injection wells has increased in Oklahoma and Kansas 

since 2005. The commenter states that EPA’s analysis of availability of Class II UIC wells lacks 

sufficient rigor. EPA disagrees. As shown in Table D-2 of the TDD, EPA analyzed the number 

of active Class II disposal wells and the rate of injection across the country. Table D-2 of the 

TDD shows that (based primarily on 2012 and 2013 data) there are 26,400 active Class II 

disposal wells with a total disposal rate of over 1 billion gallons per day. This illustrates that 

Class II UIC wells are available across the country. Furthermore, commenter’s own analysis 

(from GWPC data) shows that the number of wells in Oklahoma and Kansas (for example) have 

increased since 2005 to meet the demand. This data illustrates that contrary to commenter’s 

concerns, the capacity for UIC appears to be increasing. This confirms EPA’s findings that other 

wastewater management practices besides indirect discharge of UOG wastewater to POTWs are 

available currently; and that EPA does not have data to indicate that such practices will not 

continue to be available in the future. See Response 3-L.

Comments

EPA-HQ-OW-2014-0598-0951 (IPAA pg 8)

a decision that relies on unsubstantiated determinations of its widespread future availability

Response 3-P
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

86

See Response 3-O; Response 3-L.

Comments

EPA-HQ-OW-2014-0598-0967 (NE pg 2)

EPA acknowledges that the "availability of underground injection as a disposal method varies by 

state." While some states, like Texas, "have a large number of Class II disposal wells," other 

states, like Pennsylvania, where there is an intensive use of hydraulic fracturing, have "very few 

."8 Yet EPA appears to make no effort in its proposal to examine what those regional 

differences are and how they would impact a UOG operator's ability to meet a zero pollutant 

discharge standard, based on those regional differences . Noble believes that a standard based on 

"the availability of underground injection as a disposal method" that makes sense in one region 

of the country may not make sense in another region of the country. Indeed, it is for this reason 

that the Clean Water Act allows EPA to "divide an industry category into groupings called 

'subcategories' to provide a method for addressing variations ... and other factors ...that affect the 

determination of the 'best available' technology" for a particular industry.9

8 Id. at 18571.

9 Id. at 18573.

Response 3-Q

EPA disagrees that EPA has not made an effort to examine regional differences in UIC well 

capacity. EPA has evaluated the number of UIC wells available by state (and on Tribal lands). 

See Tables D-2 and D-3 of the TDD. While EPA agrees that the number of UIC disposal wells 

available in each state/region varies, this does not invalidate EPA’s determination that the 

technology basis of the rule is available. EPA notes that UIC wells are but one of several 

approaches available for management of UOG wastewaters. Producers can choose to 

reuse/recycle their wastewater, transfer it to a CWT facility, or haul their wastewater to a UIC 

well (even if one is not located within their state). See Response 3-L. Although EPA agrees that 

it has the authority to subcategorize the industry as appropriate in establishing pretreatment 

standards, EPA did not identify and appropriate statutory basis to subcategorize the industry in 

this case, given that all UOG producers are currently meeting the zero discharge requirements, 

irrespective of regional variations in disposal options. See Response 3-H.

Comments

EPA-HQ-OW-2014-0598-0967 (NE pg 2)

EPA seems to base its national standard on a technology (UIC) whose availability is highly 

dependent on the geologic characteristics of the particular area where the extraction activities are 

taking place. As such and at a minimum, we suggest that EPA examine whether the variations in 

geology from place to place call for a subcategorization of the industry. EPA's statement that it 

"does not have any data to demonstrate that UIC capacity [on a nationwide basis] will be 

expended and that this current management approach may not be available in the future" seems 

insufficient as a basis for federal action of this import.10
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

87

10 Id. at 18574.

Response 3-R

EPA has chosen not to subcategorize the industry based on factors such as underlying geology. 

See Response 3-H.

EPA disagrees with the commenter’s statement that EPA’s rationale (that there is no data 

indicating that UIC capacity will be expended and that this management approach may not be 

available in the future on a nationwide basis) is insufficient as a basis for the final rule. EPA 

notes that disposal via UIC injection wells is only one of among several available approaches for 

producers. See Response 3-L.

Comments

EPA-HQ-OW-2014-0598-0967 (NE pg 3)

Pennsylvania has very few UIC wells and has experienced tremendous growth in the UOG 

sector. While water recycling has largely been able to address wastewater management needs in 

this region, the ability to recycle wastewater requires recycled water demand from new fracturing 

jobs. The pace of fracturing jobs in this area has been variable with large increases and decreases 

in activity levels. Thus the demand for recycled water has been variable. The result is, at times, 

that the available water management options (recycling} have been inadequate to address 

demand. Water management is a regional issue.

Response 3-S

EPA agrees that the need for reuse/recycled water may be variable in specific locations, such as 

Pennsylvania. Commenter states that water recycling has largely been able to address wastewater 

management needs in the [Pennsylvania] region. This supports EPA’s PSES/PSNS technology 

basis for the final rule. EPA notes that Pennsylvania has a number of CWT facilities. CWT

facilities can provide additional water management capacity (including treatment for discharge, 

when properly permitted) during periods when the demand for reuse/recycled water is lower than 

supply.

Comments

EPA-HQ-OW-2014-0598-0949 (DEPA pg 4)

EPA may be correct in saying industry’s currently negligible dependence on POTWs diminishes 

the costs to industry of the O&G ELG Rule.2 But EPA’s assessment is myopic and misguided. A 

comprehensive – rather than real-time – assessment of UOG operators’ disposal practices would 

 

2 O&G ELG Rule, supra note 1, at 18,561 (“Because the data reviewed by EPA show that the UOG extraction 

industry is not currently managing wastewaters by sending them to POTWs, the proposed rule causes no incremental 

change to current industry practice that EPA measured as compliance costs or monetized benefits.”)
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

88

account for the scientifically unsupportable yet rapidly developing trend toward greater 

restrictions on saltwater disposal well operations and more devastating earthquake litigation, 

which could rapidly require UOG operators to seek alternate disposal options, including 

discharge to POTWs.

Response 3-T

EPA is unclear as to the meaning of and relevance to the final rule of certain comments provided 

by commenter. Commenter suggests a comprehensive, rather than real-time, assessment of UOG 

operators’ disposal practices. It is unclear what such an assessment would be meant to illustrate, 

or what such an assessment would entail, as commenter provided no details. It is unclear what 

“more devastating earthquake litigation” is in reference to. EPA is unclear whether commenter 

means to state that there is litigation in response to more devastating earthquakes occurring, or 

that the litigation surrounding earthquakes is devastating to commenter (perhaps in an emotional 

or financial sense). Notwithstanding this lack of clarity, the end result is that commenter suggests 

that these actions will restrict use of disposal wells and therefore require operators to utilize 

POTWs in the future. While EPA agrees that such a reduction in UIC capacity may necessitate 

operators to utilize alternate wastewater management practices, EPA does not agree that such a 

reduction is expected to occur or that it will necessitate discharge to a POTW. Moreover, even if 

UIC capacity were to be restricted in a particular region in the future, this does not preclude the 

use of other approaches (such as reuse/recycle or transfer to a CWT facility). Operators can also 

haul their wastewater further to UIC wells that have additional capacity. In addition, in the 

future, operators will know that this rule prohibits indirect discharge to a POTW, and can 

therefore use this knowledge to plan their wastewater management activities and well 

development activities accordingly.

Comments

EPA-HQ-OW-2014-0598-0953 (API pg 7)

UIC disposal (which is not a treatment technology)

EPA-HQ-OW-2014-0598-0951 (IPAA pg 8)

Second, while UIC Class II wells are clearly an effective management option for UOG extraction 

waste waters, injection is not a treatment technology. 

Response 3-U

To the extent that the commenter is arguing that the technology bases for the zero discharge 

requirements do not constitute “treatment,” EPA notes that there is nothing in the CWA that 

limits candidate technology options to those that treat pollutants in the wastewater and allow 

discharge. Zero discharge is a permissible option under the Clean Water Act. In establishing 

pretreatment standards, EPA thus reasonably considers other available technology options, such 

as disposal, recycle, and reuse, that would limit the wastewater pollutants sent to POTWs. See 

Response 1-E.
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

89

Comments

EPA-HQ-OW-2014-0598-0951 (IPAA pg 10)

EPA too readily dismisses treatment technologies as “...costly, would result in more pollutant 

discharges, and are energy intensive” compared to UIC or reuse. These technologies may be 

more costly and result in pollutant discharges. However, the CWA does not demand that BATEA 

be inexpensive and discharge free. It requires that the technology be what the description says –

the best available technology economically achievable. It is EPA reliance on a non-CWA 

management technology – injection wells under the SDWA – that brings about that comparison. 

Response 3-V

EPA agrees that there are technologies available that can treat UOG wastewater to remove 

pollutants, including TDS. Technologies to remove TDS are costly and are energy intensive. 

Moreover –and most significantly – any wastewater discharged to POTWs, even after utilization 

of TDS removal technologies, will result in greater pollutant discharges than zero discharge since 

these technologies are not 100% effective in removing TDS or other UOG pollutants. Since 

wastewater management approaches that achieve zero discharge are available, economically 

achievable, and achieve the greatest pollutant reductions, EPA appropriately determined these 

approaches reflect BAT [Note: this is the same standard as what commenter terms “BATEA”] 

and BADCT. See also Section VI.B of the preamble for EPA’s rationale for selecting zero 

discharge as the basis of PSES and PSNS. See Response 1-G; Response 1-Z.

It is irrelevant that UIC injection wells are regulated under the Safe Drinking Water Act instead 

of the Clean Water Act – as this doesn’t change the fact that UIC wells are available as a 

disposal option for UOG operators to use in meeting the zero discharge requirements under this 

final rule.

Data on Discharges to Publicly Owned Treatment Works

Comments

EPA-HQ-OW-2014-0598-0953 (API pg 1)

As the EPA has acknowledged, industry participants are not actively seeking to discharge 

untreated waters to POTWs, and these facilities are already prohibited from accepting any water 

that they cannot effectively treat to the standards set by strict discharge permits. As a result, this 

rule conveys no likely benefits.

Response 3-W

EPA agrees that data indicates that UOG wastewater is not currently being discharged to 

POTWs. Therefore, the rule does not provide any incremental benefits (such as improvements to 

water quality) from current conditions. However, since the final rule will prevent potential future 

discharges to POTWs, the rule will also prevent any future environmental impacts from those 

discharges and therefore may have benefits in the future. EPA also notes that ELGs are 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

90

technology-based requirements and this final rule reflects a consideration of the factors specified 

in the CWA for such requirements.

Comments

EPA-HQ-OW-2014-0598-0957 (EDF pg 2)

EDF has no independent knowledge of discharges to POTWs to supplement the information 

presented by EPA in the Technical Support Document (TSD). EPA’s draft Assessment of the 

Potential Impacts of Hydraulic Fracturing for Oil and Gas on Drinking Water Resources (Draft 

EPA HF Drinking Water Assessment) indicates that unconventional wastewater treatment at 

POTWs in the Marcellus, where that practice was most-heavily focused, has “been essentially 

discontinued.”2 In addition, a recently released report prepared for the Ground Water Protection 

Council (GWPC) by John Veil breaks down known data for surface discharge volumes for each 

state. The US total surface discharge volume for 2012 was 1,121,045,000 barrels.3 This number 

does not differentiate between direct and indirect discharges, but provides insight into the 

volume of water that is being discharged into water bodies generally across the country. The 

states reporting discharge volumes greater than zero were Alabama, Alaska, California, 

Colorado, Indiana, Montana, Pennsylvania, Texas, Utah, and West Virginia. Underscoring the 

current and growing need to address oil and gas wastewater discharges through regulatory 

updates, onshore totals for surface discharge as a management practice grew from 139,002,000 

bbl/yr in 2007 to 605,129,000 bbl/yr in 2012.4

2 EPA, Assessment of the Potential Impacts of Hydraulic Fracturing for Oil and Gas on Drinking 

Water Resources, External Review Draft, EPA/600/R-15/047a (June 2015) at 8-13 [hereinafter 

Draft EPA HF Drinking Water Assessment 2015], available at 

http://cfpub.epa.gov/ncea/hfstudy/recordisplay.cfm?deid=244651.

3 Veil, J. (2015), U.S. Produced Water Volumes and Management Practices in 2012, Ground 

Water Protection

Council, at 42, available at 

http://www.gwpc.org/sites/default/files/Produced%20Water%20Report%202014- GWPC_0.pdf.

4 Id. at 44.

Response 3-X

EPA acknowledges that the commenter has no independent knowledge of discharges of UOG 

wastewater to POTWs. EPA also notes that the GWPC report cited by the commenter applies to 

oil and gas wastewater discharges more broadly and is not specific to UOG.

Comments

EPA-HQ-OW-2014-0598-0968 (WA pg 7)

When needed to prevent disruption of the POTW or because they will not be removed in 

conventional processes, organics can be removed from produced water through several pretreatment methods. For example, Kwon et al. reported on the use of a surfactant-modified zeolite 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

91

absorption followed by a membrane bioreactor for removal of BTEX (benzene, toluene, 

ethylbenzene, xylene).17 Yi et al. reported on the pretreatment of coke-plant wastewater to 

improve biodegradability in POTW processes.18

Treatment of oil and gas produced waters through POTWs, with or without pretreatment, is 

likely to remove suspended solids, some metals, and biodegradable organics. Suspended solids 

and some metals present in the produced water are likely to be removed through physical 

processes that will retain these contaminants in the sludge produced in conventional POTWs. 

The solids settle with other solids produced through treatment, and metals sorb onto these solids, 

ending up in the sludge.19 Many organics, even those that are toxic, can be removed by the 

microbial species present in the treatment plant (e.g., phenol and NTA are biodegradable in 

POTWs).20 Biodegradable organics are transformed by the bacteria into carbon dioxide and cell 

materials. Organic compounds that are resistant to microbial degradation will not be removed in 

POTWs, and dissolved ions (salts) will not be affected by treatment.

17Soondong Kwon et al., “Laboratory and Field Evaluation of a Pretreatment System for 

Removing Organics from Produced Water,” Water Environment Research 83, no. 9 (September 

2011): 843‐854, 

http://www.ingentaconnect.com/content/wef/wer/2011/00000083/00000009/art00010.

18Qian Yi, Wen Yibo, and Zhang Huiming, “Efficacy of Pre‐Treatment Methods in the 

Activated Sludge Removal of Refractory Compounds in Coke‐Plant Wastewater,” Water 

Research 28, no. 3 (March 1994): 701‐707, 

http://www.sciencedirect.com/science/article/pii/0043135494901503.

19F. Pagnanelli et al., “Mechanisms of Heavy‐Metal Removal by Activated Sludge,” 

Chemosphere 75, no. 8 (May 2009): 1028‐1034, 

http://www.sciencedirect.com/science/article/pii/S0045653509000824; Barry G. Oliver and 

Ernest G. Cosgrove, “The Efficiency of Heavy Metal Removal by a Conventional Activated 

Sludge Treatment Plant,” Water Research 8, no. 11 (November 1974): 869‐874, 

http://www.sciencedirect.com/science/article/pii/0043135474900992.

20Y.V. Nancharaiah et al., “Biodegradation of Nitrilotriacetic Acid (NTA) and Ferric‐NTA 

Complex by Aerobic Microbial Granules,” Water Research 40, no. 8 (May 2006): 1539‐1546,

http://www.sciencedirect.com/science/article/pii/S0043135406000881.

Response 3-Y

EPA acknowledges information provided by the commenter on pretreatment methods for 

removal of organics in produced waters, the ability of POTWs to remove certain constituents and 

not others, and a mechanism by which metals can sorb to POTW biosolids. As stated in other 

responses, POTWs are not 100% effective in removing pollutants in UOG wastewater. See 

Response 1-C; Response 1-F; Response 1-M; Response 1-P.

Comments
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

92

EPA-HQ-OW-2014-0598-0968 (WA pg 7)

Nationally, POTW treatment followed by dilution in surface receiving waters is not frequently 

used as a produced water treatment/disposal option. However, it was a common practice in 

southwestern Pennsylvania during the long development of conventional fossil fuels and was 

initially practiced for disposal of produced waters from Marcellus shale development.

Response 3-Z

EPA acknowledges the commenter’s statement that POTWs do not frequently treat/dispose of 

produced waters. EPA’s data indicates that no UOG wastewaters are currently being indirectly 

discharged to POTWs by operators. However, as stated by the commenter, this did occur in the 

past.

Comments

EPA-HQ-OW-2014-0598-0976 (CBD pg 5)

While the Proposed Rule asserts conclusively that the practice of sending wastewater discharges 

to POTWs is currently not in use, this is not the case in California. A recent study on hydraulic 

fracturing in California found that this practice “is currently applied to a subset of recovered 

fluid/produced water in California.”23

Thus, the EPA should study to what extent the practice is being used in all states where UOG 

development is occurring.

23 California Council on Science and Technology, An Independent Scientific Assessment of 

Well Stimulation in California, Vol. II (Jul. 2015) at 409.

Response 3-AA

EPA has reviewed the source provided by the commenter (DCN SGE01214) as well as the 

California Department of Conservation databases referenced in the source. These databases 

support the assertion that oil and gas wells in California are discharging to sewer systems. 

However, the reference does not classify the wells as either conventional or unconventional.

EPA collaborated with EPA Region 9 to investigate potential discharges to POTWs in 

California. Since 1982, COG operators in California have discharged some COG extraction 

wastewater to POTWs (DCN SGE01026). As of June 2013, the Sanitation Districts of Los 

Angeles County had permitted 66 conventional oil and gas (COG) “oil production dischargers” 

to discharge to three different POTWs. EPA determined that these dischargers represent 

individual wells that are drilled into COG formations (see DCN SGE01077). Therefore, EPA has 

confirmed that all wastewater currently being sent to POTWs in California are from conventional 

wells, not UOG extraction wells. Also, commenter appears to equate hydraulic fracturing with 

UOG extraction. While EPA agrees that UOG wells are typically hydraulically fractured to 

create fissures to release the oil and gas, conventional wells may also be hydraulically fractured. 

Wastewater from hydraulically fractured COG wells is outside the scope of this rulemaking. See

also responses in Section 6.0 specific to scope of the final rule. 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

93

Comments

EPA-HQ-OW-2014-0598-0937 (CUNY pg 5)

While the extent of wastes sent to POTWs is not well documented. The practice has been used in 

the Marcellus Shale in Pennsylvania,11 Ohio and West Virginia. 

11 See July 13, 2011 Letters from EPA to 14 Publicly Owned Treatment Works (POTWs) in

Pennsylvania Stating That Drilling Waste May Be Considered a Substantial Change,

http://www.epa.gov/region3/marcellus_shale/#july13lets

Response 3-BB

EPA agrees that UOG operators had previously indirectly discharged wastewater to POTWs in 

Pennsylvania (and also New York). See Table D-11 of the TDD for additional information. EPA 

has no data indicating that UOG operators previously indirectly discharged UOG wastewater to 

POTWs in West Virginia and Ohio, although EPA is aware of CWT facilities that indirectly 

discharged UOG wastewater to POTWs in these states (see Section D.5.3.2.2 of the TDD).

However, discharges from CWT facilities are not within the scope of this final rule.

Comments

EPA-HQ-OW-2014-0598-0997 (EUREKA pg 3)

For those POTWs that do have some limited ability to remove TDS or TENORM, the 

accumulation of metals in the sludge can impact residuals disposal requirements and in extreme 

cases could result in the generation of hazardous residuals (sludge). It is also important to 

recognize that an elevated methanol and/or ammonia nitrogen content, as is the case in the 

Marcellus/Utica Plays, create special treatment challenges for POTWs primarily due to the 

biochemical oxygen demand associated with these constituents.

Response 3-CC

EPA agrees that UOG wastewaters can impact POTWs in the manner described by commenter, 

which includes accumulation of metals and other pollutants in biosolids. EPA also agrees that 

methanol and ammonia-nitrogen in UOG wastewaters can adversely affect POTWs, including 

elevating biochemical oxygen demand. This further supports EPA’s decision to promulgate a 

zero discharge pretreatment standard.

Comments

EPA-HQ-OW-2014-0598-1010 (H ZEHNAL pg 1)

The fracking wastewater in the rivers in PA was studied by Duke University researchers and they 

found cancer causing radioactive materials that came up during the fracking process outside the 

wastewater treatment plants along rivers after fracking wastewater was dumped there. 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

94

Response 3-DD

EPA agrees that UOG wastewaters can contain TENORM. The record includes several 

references describing TENORM in these wastewaters, and this information is summarized in the 

TDD. This further supports EPA’s decision to promulgate a zero discharge pretreatment standard

for this final rule.

Comments

EPA-HQ-OW-2014-0598-1010 (H ZEHNAL pg 2)

The fracking wastewater even ruined factory equipment at local steel producing plants 

downstream along the river, as I am sure you are aware of.

Response 3-EE

EPA is aware of the corrosion problems described by the commenter. This further supports 

EPA’s decision to promulgate a zero discharge pretreatment standard for this final rule.

Comments

EPA-HQ-OW-2014-0598-1054 (NACWA pg 1)

We are not aware of any NACWA members currently managing wastewater from 

unconventional oil and gas (UOG) extraction facilities

Response 3-FF

EPA acknowledges the comment that NACWA is not aware of any of its member facilities 

accepting UOG wastewater. This further supports EPA’s determination that UOG producers are 

not currently sending wastewaters to POTWs and that a zero discharge pretreatment standard is 

available and economically achievable.

Comments

EPA-HQ-OW-2014-0598-0886 (KORAN pg 1)

My parents live in Auburn NY where the fossil fuel Industry brought fracking wastewater to the 

municipal sewage treatment plant. The city processed it for a while. But later it determined that it 

could not adequately remove the dangerous chemicals, and it stopped accepting it.

Response 3-GG

EPA acknowledges the comment about a specific POTW deciding to stop accepting hydraulic 

fracturing wastewater because it could not adequately treat the pollutants contained in those 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

95

wastewaters. This further supports EPA’s decision to promulgate a zero discharge pretreatment 

standard for this final rule.

Comments

EPA-HQ-OW-2014-0598-0942 (DONNAN pg 1)

POTW dumping became a serious issue in our drinking water source, the Monongahela River 

near Pittsburgh, Pa back in 2009 when TDS levels increased enough that ordinary disinfection 

treatment of our drinking water by Pennsylvanian American Water (PAWC) created 

carcinogenic trihalomethanes. PAWC's solution a few years later was to switch from chlorination 

to chloramination, which has its own set of problems when you study chloramine. Now we have 

to have our main public water lines super-chlorinated once a year, and chloramine is known to 

eat the lead out of older plumbing systems like we have in our home built in 1952. Chloramine 

has other negative issues which I will not elaborate upon here, but chlorination is clearly the 

better choice for treating water. 

Over recent years we have learned more about the Radium 226 and 228 present in wastewater 

from Marcellus Shale drilling and hydraulic fracturing operations. Ra226 is the most prevalent 

element and water soluble. With these and other radionuclides like thorium and uranium, some 

with half-lives of 1600 years now appearing in nearby streams like Ten Mile Creek in Greene 

County, Pa, and flowing into the Monongahela River which is our drinking water source, it 

becomes crystal clear that these effluents, clearly linked to fracking, need to be kept completely 

out of our waterways, especially considering the other toxins and chemicals flowing back with 

them from gas well stimulation. 

The results of our 2009 water test on our Monongahela River tap water also revealed high levels 

of acrylonitrile. At 11-times the level permitted in streams it was a major concern but not one of 

the 80 items our water company was required to monitor or correct. This is the same VOC 

detected in nearly half of the water wells tested near Hickory, Pa which were located near 

drilling and fracking operations in 2009, as well as multiple water wells in fracked areas of West 

Virginia. Therefore, that link to fracking is crystal clear to me and many others, since those same 

fluids were getting dumped at POTW's along the Monongahela River. 

Response 3-HH

EPA acknowledges the documented impacts that discharges of UOG wastewaters had on 

drinking water systems in Pennsylvania. EPA also acknowledges instances of technologically 

enhanced natural occurring radioactive material (TENORM) such as radium being present in 

UOG wastewater and the environmental impacts of such discharges. EPA also acknowledges the 

commenter’s information about acrylonitrile being present in tap water. These types of impacts 

are included among EPA’s rationale for finalizing a zero discharge pretreatment standard for this 

final rule.
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

96

Additional Data or Sources Provided in Comments

Comments

EPA-HQ-OW-2014-0598-0957 (EDF pg 3)

Volumes of wastewater generated from unconventional extraction

The 2015 Veil study cited above includes national volume estimates based on 2012 data and 

updates to estimates established by the widely cited Clark and Veil 20098 report.9 In 2012, 

onshore wells – both conventional and unconventional – in the 31 states reviewed generated 

20,555,884,000 barrels of wastewater. It is important to emphasize that the volume of 

wastewater produced by any given well can vary greatly depending on the location, formation, 

technique, etc.10

8 Clark, C.E., and J.A. Veil (2009), Produced Water Volumes and Management Practices in the 

United States, ANL/EVS/R-09/1, prepared for the U.S. Department of Energy, National Energy 

Technology Laboratory, September, 64 pp.

9 Veil, J. (2015), U.S. Produced Water Volumes and Management Practices in 2012, Ground 

Water Protection Council, available at 

http://www.gwpc.org/sites/default/files/Produced%20Water%20Report%202014-

GWPC_0.pdf.

10 See, e.g., Akob, D.M., I.M. Cozzarelli, D.S. Dunlap, E.L. Rowan, M.M. Lorah (2015), 

Organic and inorganic

composition and microbiology of produced waters from Pennsylvania shale gas wells, Applied 

Geochemistry, doi:10.1016/j.apgeochem.2015.04.011 (available online).

Response 3-II

EPA acknowledges data contained in the Veil study regarding wastewater generation volumes 

and the variability of wastewater generation by well. The Veil study is included in the record for

this rulemaking.

Comments

EPA-HQ-OW-2014-0598-0957 (EDF pg 3)

Potential pollutants in wastewater generated from unconventional extraction

Characterizing produced water is complicated by a number of factors, including the large number 

of constituents of concern potentially present, the limited number of approved analytical methods 

available to determine the presence and concentration of constituents, and inadequate 

information on toxicity of potential constituents of concern. In November of 2014, EDF 

submitted to EPA a table listing potential constituents of concern associated with shale 

wastewater with comments regarding the Final 2012 and Preliminary 2014 Effluent Guidelines 

Program Plans [Docket ID No. EPA-HQ-OW-2014-0170]. EDF updated this table in January of 

2015, slightly broadening the scope of sources referenced, and submits this table with these 

comments, see below. In short, the EDF list was developed by compiling chemicals and 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

97

Chemical Abstract Service (CAS) numbers found in fracturing fluids or otherwise expected to be 

in produced fluids from authoritative sources including FracFocus Well Reports, EPA literature 

reviews and reports, state and federal regulatory lists, and constituents from a few known CWT 

facility National Pollutant Discharge Elimination System (NPDES) permits. EDF intends to 

periodically expand and update this list to incorporate new information and data, which will be 

made easier by the recent release of machine readable data by FracFocus.

Response 3-JJ

EPA acknowledges data on the potential constituents contained in produced waters. The data 

illustrates the wide range of potential pollutants in these wastewaters. EPA agrees that approved 

analytical methods do not currently exist for some of these constituents. EPA also agrees that 

information on toxicity of some of these constituents is not available. EPA notes that the zero 

discharge pretreatment standard in this final rule will address all pollutants in UOG wastewater, 

including those for which identification and toxicity information may be lacking.

Comments

EPA-HQ-OW-2014-0598-0957 (EDF pg 5)

Volume of wastewater generated from conventional oil and gas extraction

Many recent studies focused on newly burgeoning development states like Pennsylvania make 

conclusions regarding conventional versus unconventional production and wastes. While some 

researchers have concluded that actual brine production per well may be an order of magnitude 

higher in Marcellus wells than in conventional Pennsylvania wells,15 it is important to recognize 

that conventional wells are also significant sources of wastewater that must be managed in the 

same way unconventional wastewaters must be managed. Lutz et al. concluded that “contrary to 

current perceptions, Marcellus wells produce significantly less wastewater per unit gas recovered 

(approximately 35%) compared to conventional natural gas wells.”16 In addition, as noted by the 

Draft EPA HF Drinking Water Assessment, older conventional oil wells tend to produce as much 

as five times as much water as new wells,17 so volumes are potentially growing rather than 

diminishing. The Lutz publication includes a significant discussion on conventional versus 

unconventional drilling waste production in the Marcellus and should be taken into consideration 

in contemplating an additional rule to address conventional wastewaters.

15 Lutz, B.D, A. N. Lewis & M.W Doyle (2013), Generation, transport, and disposal of 

wastewater associated with Marcellus Shale gas development, Water Resources Research, 49(2), 

647-656, DOI: 10.1002/wrcr.20096.

16 Id.

17 Draft EPA HF Drinking Water Assessment, at 7-11.

Response 3-KK
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

98

EPA appreciates information on produced water volumes from conventional wells – but notes 

that such information is outside the scope of the current rulemaking. The current rulemaking 

addresses wastewater discharges from unconventional wells. See Response 4-N.

Comments

EPA-HQ-OW-2014-0598-0957 (EDF pg 6)

Pollutants and concentrations in wastewater generated from conventional oil and gas extraction

The Draft EPA HF Drinking Water Assessment is a valuable resource for information regarding 

constituents of concern, given that it focused on wells that were hydraulically fractured 

(including conventional, unconventional, and coalbed methane). Therefore, the results of the 

entire assessment, particularly chapters 7 and 8 should be taken into consideration in this and 

future rulemakings. With specific regard to chemical composition, the Assessment provides the 

most convincing, simple, and concise argument that produced water from conventional and 

unconventional formations is extremely similar:

Unconventional produced water is reported to be similar to conventional produced waters in 

terms of TDS, pH, alkalinity, oil and grease, TOC, and other organics and inorganics (Wilson, 

2014; Haluszczak et al., 2013; Alley et al., 2011; Hayes, 2009; Sirivedhin and Dallbauman, 

2004). Although salinity varies in shales and tight formations, produced water is typically 

characterized as saline (Lee and Neff, 2011; Blauch et al., 2009). Produced water is also enriched 

in major anions (e.g., chloride, bicarbonate, sulfate), cations (e.g., sodium, calcium, magnesium), 

metals (e.g., barium, strontium), naturally occurring radionuclides (e.g., radium-226 and radium228) (Chapman et al., 2012; Rowan et al., 2011), and organics (e.g., hydrocarbons) (Orem et al., 

2007; Sirivedhin and Dallbauman, 2004).18

EPA also notes in this draft report that UOG wastewater is “typically dominated by the same 

metals that are associated with conventional produced water.”19

In addition to EPA’s work, the U.S. Geological Survey (USGS) published a fact sheet in 

November of 2014 providing an overview of their investigations of water produced during 

hydrocarbon reservoir development. One example comparison provided of samples from a 

conventional oil well in Ohio versus a shale gas well in Pennsylvania showed that numbers were 

significantly higher in the conventional wastewater for TDS, Calcium, Chloride, Magnesium, 

and Sodium.20 USGS continues to work towards full analysis and characterization of both 

conventional and unconventional produced waters.

As a final example, a recent study published in Environmental Science & Technology examined 

both conventional and unconventional wastewater samples.21 Samples of Appalachian 

conventional produced waters were found to contain high chloride, bromide, iodide, and 

ammonium levels – the same pollutants of concern identified by EPA in unconventional oil and 

gas wastewaters. The researchers also found no difference between conventional and 

unconventional produced waters with respect to halides (such as iodide) and ammonium 

concentrations.
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

99

18 Id. at 7-22.

19 Id. at 7-26.

Response 3-LL

EPA considered its hydraulic fracturing drinking water assessment draft report in the context of 

this rulemaking. EPA notes that while the assessment includes information on both conventional 

and unconventional wells, the current rulemaking addresses wastewater from unconventional 

wells. See Response 4-N.

Comments

EPA-HQ-OW-2014-0598-0957 (EDF pg 9)

Given that EPA has done extensive literature reviews both in this proposed rule and as part of the 

Draft HF Drinking Water Assessment, much can be summed up about potential impacts in 

EPA’s own words:

Prior to the development of unconventional resources, POTWs were used to treat wastewater and 

other wastes from conventional oil and gas operations in some eastern states. Although this is not 

a common treatment method for oil and gas wastes in the United States, the small number of 

injection wells for waste disposal in Pennsylvania drove the need for disposal alternatives 

(Wilson and Vanbriesen, 2012). When development of the Marcellus Shale began, POTWs 

continued to be used to treat wastewater, including wastes originating from new unconventional 

oil and gas wells (Kappel et al., 2013; Soeder and Kappel, 2009). However, unconventional 

wastewater from the Marcellus region is difficult to treat at POTWs due to elevated 

concentrations of halides, heavy metals, organic compounds, radionuclides, and salts (Lutz et al., 

2013; Schmidt, 2013). Most of these constituents have the potential to pass through the unit 

treatment processes commonly used in POTWs and can be discharged into receiving waters 

(Cusick, 2013; Kappel et al., 2013). In addition, research has found that sudden, extreme salt 

fluctuations can disturb POTW biological treatment processes (Linarić et al., 2013; Lefebvre and 

Moletta, 2006). In order to meet NPDES requirements, POTWs used to blend the hydraulic 

fracturing wastewater with incoming municipal wastewater. For example, Ferrar et al. (2013) 

note that, per PA DEP requirements, one facility could only accept up to 1% of their influent 

volume from unconventional oil and gas wastewater per day.31

Expanding on EPA’s summary, of particular concern are halides and organic pollutants in 

produced water given unknown toxicities, and the potential for detrimental impact to 

downstream drinking water treatment processes. Researchers conclude that given the wide and 

variable range of organics potentially present in produced waters, treatment processes must allow 

for extensive organics removal.32 Recent studies suggest that halides are poorly removed by 

both POTWs and CWTs, and the elevated concentrations of bromide and iodide potentially 

present in surface waters after discharge may increase the formation of disinfection-by-products 

at downstream drinking water treatment plants.33 High enrichment factor values of chloride and 

bromide in discharged effluent is critical to these drinking water plants and studies have shown 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

100

bromide enrichment nearing 40 fold of background amounts downstream from discharge 

points.34

A recent dilution study showed that percentages of produced water as low as 0.01% discharged 

into river waters altered speciation towards formation of brominated and iodinated 

trihalomethanes and brominated haloacetonitriles during chlorine treatments. Chloramination 

and ozonation also showed effects.35 In light of these studies regarding the potential impacts 

associated with even low levels of contaminant discharges, there is broad stakeholder 

consensus36 that the unknown and likely limited ability of municipal facilities to properly treat 

for these constituents provides significant support for EPA’s proposal to prohibit discharges to 

POTWs from oil and gas operations.

While potential ecological impacts of wastewater on terrestrial and aquatic ecosystems are not 

well represented in scientific literature37 recent research is providing increasing knowledge on 

the subject. Bioaccumulation in sediment near discharge sites is a significant concern, 

particularly for radioactive elements such as radium. In one study in Western Pennsylvania, 

sediment radium levels were found to be 200 times greater than background samples collected 

upstream and from other rivers.38 The study concluded that the mixing of saline water effluent 

with upstream low-saline water may enhance radium adsorption into sediment. Benthic 

organisms could be exposed to significant ecological risk from radium accumulation.

Furthermore, bioaccumulation is known to occur in freshwater fish, invertebrates, mollusks, 

shellfish, and freshwater plants.39 In addition to bioaccumulation, at least one recent study has 

shown that some additives used in the fracturing process and potentially present in flowback and 

produced waters can be mobile and persistent in the environment where released, meaning that 

those compounds have elevated exposure potential.40

A variety of organic additive chemicals may also be persistent, such as quaternary ammonium 

compounds, chemicals used to eliminate bacteria in the water that produces corrosive 

byproducts.41 However, there remain gaps in the literature on persistence and bioaccumulation 

for a number of compounds known to be used in the process. The Draft EPA HF Drinking Water 

Assessment summarized such hazard data gaps including gaps in information regarding 

chemicals used, occurrence data, and toxicological and physiochemical data. Specific to potential 

environmental and health impacts, 1,026 chemicals (of 1,173 identified) were lacking chronic 

toxicity data (noncancer oral reference values (RfVs) and cancer oral slope factors (OSFs)) and 

658 were lacking physiochemical properties data.42

31 Draft HF Drinking Water Assessment at 8-33.

32 Maguire-Boyle S.J., and A.R. Barron (2014), Organic compounds in produced waters from 

shale gas wells.Environmental Science, Processes, and Impacts 14, 419-429. DOI: 

10.1111/gfl.12084.

33 Parker K., T. Zeng, J. Harkness, A. Vengosh, W.A. Mitch (2014), Enhanced Formation of 

Disinfection Byproducts in Shale Gas Wastewater-Impacted Drinking Water Supplies, Environ. 

Science & Technology, 48(19), 11161-11169 DOI: 10.1021/es5028184.

34 Warner, N.R., T.M. Kresse, P.D. Hays, A. Down, J.D. Karr, R.B. Jackson, and A. Vengosh 

(2013), Geochemical and Isotopic Variations in Shallow Groundwater in Areas of the 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

101

Fayetteville Shale Development, Northcentral Arkansas. Appl. Geochemistry, 35, 207–220, 

DOI:10.1016/j.apgeochem.2013.04.013.; see also Wilson, J.M.; VanBriesen, J.M.

35 Parker K., T. Zeng, J. Harkness, A. Vengosh, W.A. Mitch (2014), Enhanced Formation of 

Disinfection Byproducts in Shale Gas Wastewater-Impacted Drinking Water Supplies, Environ. 

Science & Technology, 48(19), 11161-11169, DOI: 10.1021/es5028184.

36 See for example a recent blog publication by Energy In Depth regarding the Parker et al., 

study. Joe Massaro, Report on Fracking Wastewater Ignores Standard Procedures in

Pennsylvania, ENERGYINDEPTH (Oct. 7, 2014, 5:05 PM), 

http://energyindepth.org/marcellus/report-on-fracking-wastewater-ignores-standard-proceduresin- pennsylvania/

(A recent study, authored by researchers from Stanford and Duke University and titled Enhanced 

Formation of Disinfection Byproducts in Shale Gas Wastewater-Impacted Drinking Water 

Supplies, essentially rehashes what industry and regulators have known for years: that 

wastewater from fracking should not be treated at water treatment facilities and released into 

river waters. That’s exactly why Marcellus producers stopped using such treatment facilities 

back in 2011.)

37 See, e.g., Draft EPA HF Drinking Water Assessment at Ch. 9; Entrekin, S., M. Evans-White, 

B. Johnson, and E. Hagenbuch (2011), Rapid expansion of natural gas development poses a 

threat to surface waters, Front Ecol Environ 9(9): 503–511, doi:10.1890/110053.

38 Warner, N.R., T.M. Kresse, P.D. Hays, A. Down, J.D. Karr, R.B. Jackson, and A. Vengosh 

(2013), Geochemical and Isotopic Variations in Shallow Groundwater in Areas of the 

Fayetteville Shale Development, Northcentral Arkansas. Appl. Geochemistry, 35, 207–220, 

doi:10.1016/j.apgeochem.2013.04.013.

39 Id. (citing Iyengar, M.; Nrayana Rao, K. Uptake of radium by marine animals, In The 

Environmental Behaviour of Radium; IAEA, 1990; Vol. 1. (33) Jeffree, R. The environmental 

behaviour of radium. In Radium uptake by freshwater invertibrates; IAEA, 1990; Vol. 1. (34) 

Justyn, J. and Havlik, B. Radium uptake by freshwater fish. In The Environmental Behaviour of 

Radium, IAEA, 1990; Vol. 1. (35) Williams, A. Radium uptake by Freshwater Plants. In The 

Environmental Behaviour of Radium, IAEA, 1990; Vol. 1.).

40 Rogers, J.D., T.L. Burke, S.G. Osborn, J.N. Ryan. (2015) A framework for Identifying 

Organic Compounds of Concern in Hydraulic Fracturing Fluids Based on Their Mobility and 

Persistence in Groundwater. Environmental Science and Technology Letters, 2: 158-164.

41 FracFocus; Stringfellow, W. T., M. K. Camarillo, W. L. Sandelin, J. K. Domen, and S. 

Borglin (2014) Physical, chemical, and biological characteristics of compounds used in hydraulic 

fracturing. Journal of Hazardous Materials, 275, 37-54, DOI: 10.1016/j.jhazmat.2014.04.040.

42 Draft EPA HF Drinking Water Assessment at 9-7, fig. 9-1.

Response 3-MM

EPA agrees that there are a range of pollutants, including TDS, organics and halides that are 

contained in unconventional oil and gas wastewaters and that are not effectively removed at 

POTWs and that pass through the POTWs and may interfere with POTW. These pollutants may 

cause or contribute to a range of problems, including disinfection by-product formation in 

downstream drinking water treatment plants. EPA agrees that the pass through and potential 

interference of UOG pollutants supports the prohibition on indirect discharges of pollutants in 

wastewaters from UOG facilities to POTWs in this final rule. EPA also agrees that a range of 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

102

ecological impacts can occur from discharge of these wastewaters, including documented 

examples of accumulation of radium in receiving water sediments. EPA agrees that this presents 

a number of potential risks, including exposure of benthic organisms and bioaccumulation in 

aquatic organisms and plants. EPA also agrees that there are gaps in current knowledge of the 

range of additive chemicals utilized in well development and that there are gaps in knowledge 

surrounding the environmental fate of a range of pollutants found in UOG wastewaters. EPA 

notes that the zero discharge pretreatment standard for UOG wastewaters in this final rule

addresses all pollutants in UOG wastewater, including those for which identification and toxicity 

information may be lacking.

Comments

EPA-HQ-OW-2014-0598-0957 (EDF pg 13)

Constituents Associated with Shale Wastewater Consolidated list of National Chemicals 

(January 2015)

Response 3-NN

EPA appreciates the list of constituents associated with shale wastewater provided by the 

commenter. This information is included in the record.

Comments

EPA-HQ-OW-2014-0598-0957 (EDF pg 15)

CONSTITUENTS ASSOCIATED WITH SHALE WASTEWATER

Consolidated List of National Chemicals Under Consideration to Date 

Response 3-OO

EPA appreciates the list of constituents under consideration associated with shale wastewater 

provided by the commenter. This information is included in the record.

Comments

EPA-HQ-OW-2014-0598-0977 (EIP pg 7)

Produced water can also contain degradation products and byproducts from chemical reactions 

occurring downhole.24

24 See, e.g., William T. Stringfellow et al., Physical, chemical, and biological characteristics of 

compounds used in hydraulic fracturing. 275 J. Hazardous Materials 37-54 (2014); see also 

Noura Abualfaraj et al., supra note 23, at 514-24; Yaal Lester et al., Characterization of 

Hydraulic Fracturing Flowback Water in Colorado: Implications for Water Treatment, 512-513 

Science of the Total Env’t 637-44 (2015).
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

103

Response 3-PP

EPA appreciates data indicating that produced water can contain degradation products and 

byproducts from chemical reactions occurring downhole as described in the reference provided.

Comments

EPA-HQ-OW-2014-0598-0977 (EIP pg 7)

Looking specifically at chemical additives to hydraulic fracturing fluids, the TDD states that 

“chemical additives in total typically make up less than 0.5 percent of the total fracturing fluid by 

mass,” citing a 2009 report by the Ground Water Protection Council (GWPC) and ALL 

Consulting. However, it is worth noting that this report specifically states that the percent by 

mass of additives ranges from 0.5 percent up to 2 percent.25

25 See TDD, supra note 17, at 40-41; Ground Water Prot. Council & ALL Consulting, Modern 

Shale Gas Development in the United States: A Primer (2009); see also EPA, Analysis of 

Hydraulic Fracturing Fluid Data from the FracFocus Chemical Disclosure Registry 1.0 at 37 

(2015) (stating that EPA’s findings were consistent with the 2009 report by GWPC and ALL 

Consulting).

Response 3-QQ

EPA agrees that the percent by mass of additives can vary and that the upper range reported is 

greater than the typical value reported in the literature. EPA notes that all additives will be 

addressed by the zero discharge PSES and PSNS requirements in this final rule.

Comments

EPA-HQ-OW-2014-0598-0977 (EIP pg 7)

In addition to the information and research EPA presents in the TDD, there are a number of other 

publications and data sources that either were not included in the TDD or have been released 

since 2014 Please see Appendix A for additional UOG produced water characterization data.26 

These sources provide additional support for a zero-discharge standard. For example, some 

biocides used in hydraulic fracturing fluids can present challenges at POTWs like promoting 

antimicrobial resistance and sorption to sludge.27 However, studies specifically examining the 

presence of biocides in flowback water are limited.

Several scientific studies examine the need to “tailor” treatment of oil and gas extraction 

wastewater due to its variable content, and many studies express the need for more advanced 

treatment processes that are not found at POTWs. The degree of treatment needed depends on 

the influent and the desired quality of water after treatment. POTWs cannot tailor treatment 

(other than through dilution) and they do not operate advanced treatment systems.28

A 2014 study by Aida M. Farag et al. addressed the environmental impacts of salts from 

produced waters on aquatic resources. The study specifically focused on sodium chloride and 

sodium bicarbonate. The study found that Ceriodaphnia dubia has an acute 48-hour LC50 (i.e., 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

104

the toxicity of the surrounding medium that will kill half the studied population) of 1040 mg 

NaCl/liter. By comparison, EPA’s acute water quality criterion for the protection of aquatic life 

is 860 mg chloride/liter, and the chronic criterion is 230 mg chloride/liter. The study also 

observed chronic toxicity to C. dubia at much lower concentrations (132 and 117 mg NaCl/liter) 

in very soft water.29 A final source in support of the zero-discharge standard is a statement by 

the industry itself:

A recent study, authored by researchers from Stanford and Duke University and titled Enhanced 

Formation of Disinfection Byproducts in Shale Gas Wastewater-Impacted Drinking Water 

Supplies, essentially rehashes what industry and regulators have known for years: that 

wastewater from fracking should not be treated at water treatment facilities and released into 

river waters. That’s exactly why Marcellus producers stopped using such treatment facilities 

back in 2011.30

The statement is from the Independent Petroleum Association of America’s public relations 

website, Energy In Depth, which offers industry perspectives and opinions on studies, 

rulemakings, and other current events.31

26 See also Appendix A.

27 See Geneveve A. Kahrilas et al., Biocides in Hydraulic Fracturing Fluids: A Critical Review 

of Their Usage, Mobility, Degradation, and Toxicity, 49 Envtl. Science & Tech. 16-32 (2015).

28 See, e.g., Lester et al., supra note 24, at 637-44; Bryan D. Coday et al., The sweet spot of 

forward osmosis: Treatment of produced water, drilling wastewater, and other complex and 

difficult liquid streams, Desalination, Jan. 15, 2015, at 23-35.

29 See Aida M. Farag et al., A review of environmental impacts of salts from produced waters 

on aquatic resources, 126 Int’l J. Coal Geology 157-161 (2014).

30 Energy In Depth, Report on Fracking Wastewater Ignores Standard Procedures in 

Pennsylvania, Oct. 7,

2014, http://energyindepth.org/marcellus/report-on-fracking-wastewater-ignores-standardproceduresin-pennsylvania/ (last visited July 14, 2015).

31 See Energy In Depth, About EID, http://energyindepth.org/about/ (last visited July 14, 2015).

Response 3-RR

EPA appreciates additional data on produced water characteristics, and EPA has included this 

information in the record. EPA agrees that POTWs do not typically operate advanced treatment 

systems that are capable of removing pollutants found in UOG wastewaters, which supports a 

zero discharge pretreatment standard for this rule. EPA also agrees that sodium chloride can be 

toxic to freshwater organisms, as evidenced by the toxicity data provided by the commenter.

Comments

EPA-HQ-OW-2014-0598-0977 (EIP pg 9)

In addition to EPA’s review of POTW case studies, a study by Kimberly M. Parker et al. cites 

reports of increased bromide concentrations in surfaces waters around POTWs and CWTs 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

105

receiving wastewater from O&G operations, such as a rise from 72 ug/l pre-2003 (i.e., before 

major shale gas development) to 300 ug/l after 2009.39

39 See Kimberly M. Parker et al., Enhanced formation of disinfection byproducts in shale gas 

wastewater- impacted drinking water supplies, 48 Envtl. Sci. & Tech. 11,161-69 (2014).

Response 3-SS

EPA recognizes data showing increased bromide concentrations in surface waters receiving 

effluent from POTWs and CWT facilities receiving oil and gas wastewater. EPA has included 

this report in the record.

Comments

EPA-HQ-OW-2014-0598-0977 (EIP pg 9)

The compiled literature found that bromide and chloride from oil and gas wastewater can 

become a source of DBPs when the wastewater is directly processed by POTWs or when 

POTWs that have processed oil and gas wastewater discharge into a river that provides the raw 

water for drinking water treatment plants downstream.41 With respect to this second means of 

DBP formation, the thirteen POTW case studies discussed in the TDD all indicate that chlorides, 

an established precursor to DBP formation, are not effectively removed during the treatment 

processes and are therefore discharged in the effluent.42 A study by Kyle J. Ferrar et al. 

assessed effluent discharges from three wastewater treatment plants and found that 

concentrations of bromide (along with strontium, barium, TDS, chlorides, and benzene) are also 

significantly higher when facilities accept natural gas extraction wastewaters and are not 

effectively removed during the treatment process.43

A study by Michelle L. Hladick et al. adds additional weight to EPA’s review of DBP 

formation.44 The study analyzed twenty-nine different DBPs at POTWs that do not accept oil 

and gas extraction wastewater, POTWs that do accept oil and gas produced water, and CWTs. 

The facilities accepting produced waters were known to accept waste from both conventional 

and unconventional oil and gas operations, and were found to have higher concentrations of 

brominated and iodinated trihalomethanes than POTWs that did not accept produced waters and 

CWTs. While not all THMs and DBPs in drinking water are regulated by the EPA, the study 

found bromoform (which is regulated) at levels up to 10.1 ug/l at POTWs that accept produced 

water, compared to a maximum of 0.04 ug/l at a POTW that did not accept oil and gas 

wastewater. Brominated DBPs are among the most carcinogenic and genotoxic DBPs. While the 

total trihalomethanes did not exceed the MCL of 80 ug/L in drinking water, the study suggests 

that these concentrations in the effluent serve merely as a baseline DBP level, and do not account 

for downstream drinking water treatment plants that risk forming additional DBPs upon further 

treatment.

An important area in which the TDD lacks depth of analysis is with regard to iodinated DBPs. In 

addition to the risk from brominated DBPs, the Hladick et al. study also found elevated levels of 

iodinated DBPs in the effluent from POTWs that accept oil and gas produced water.45 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

106

Although iodinated DBPs are not yet regulated and are therefore tested for less frequently, a 

2007 study by Susan D. Richardson et al. found that iodinated DBPs may be the most genotoxic 

DBPs of all.46 To produce lower levels of regulated DBPs, many wastewater treatment plants 

have switched from chlorine disinfectants to alternatives such as chloramine, ozone, and chlorine 

dioxide, but a 2006 study by Stuart W. Krasner et al. found that these alternative disinfectants 

produce higher concentrations of other DBPs, such as iodinated DBPs.47 Specifically, iodinated 

DBP concentrations increase when chloramines are the only disinfectant used. While the studies 

exploring the formation of iodinated-DBPs have found concentrations at lower levels relative to 

other DBPs, they should not be overlooked, as their higher toxicity may make them more potent 

even at low concentrations.48

Additionally, wastewater from both unconventional and conventional oil and gas operations in 

the Marcellus and Fayetteville shale and Appalachian basins have been characterized with high 

concentrations of chloride, bromide, iodide, and ammonium, all of which promote the formation 

of toxic DBPs in receiving POTWs or drinking water treatment plants with disinfection 

treatments.49 A 2015 study by Jennifer S. Harkness et al. was unable to identify any oil and gas 

wastewater operations which regulated or monitored for iodide or ammonium, exposing the 

potential for additional risks from UOG wastewater disposal at POTWs.

Finally, the above-cited study by Parker et al. evaluated the minimum percent volume of oil and 

gas wastewater from the Marcellus and Fayetteville shale in surface waters that would impact the 

formation of DBPs upon disinfection at a water treatment plant. The study found that volumes as 

little as 0.01 percent of oil and gas wastewater could alter the speciation of DBPs to favor 

brominated and iodinated DBPs. This study also found a reduction in the regulated 

trihalomethanes with chloramination, but an increased presence in iodinated trihalomethanes, 

similar to the findings in Hladick et al. and Krasner et al. studies.50 In other words, the results 

suggest that merely changing the treatment and disinfection techniques may not be an effective 

strategy for minimizing impacts to drinking water, as changes are likely to just change the type 

of byproducts present.

34 Id. at 111.

35 Id. at 114-29.

36 Id. at 130.

37 Id. at 131.

38 Id. at 129-40.

39 See Kimberly M. Parker et al., Enhanced formation of disinfection byproducts in shale gas 

wastewater- impacted drinking water supplies, 48 Envtl. Sci. & Tech. 11,161-69 (2014).

40 See TDD, supra note 17, at 141-45.

41 Id.

42 Id. at 112-13.

43 Kyle J. Ferrar et al., Assessment of effluent contaminants from three facilities discharging 

Marcellus Shale wastewater to surface waters in Pennsylvania, 47 Envtl. Sci. & Tech. 3,472-81 

(2013).

44 Michelle L. Hladick et al., Discharges of produced waters from oil and gas extraction via 

wastewater treatment plants are sources of disinfection by-products to receiving streams. 466-

467 Sci. of the Total Env’t 1,085-93 (2014).
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

107

45 Id.

46 Susan D. Richardson et al., Occurrence, genotoxicity, and carcinogenicity of regulated and 

emerging disinfection by-products in drinking water: A review and roadmap for research, 636 

Mutation Research178-242 (2007).

47 Stuart W. Krasner et al., Occurrence of a new generation of disinfection byproducts, 40 Envtl. 

Sci. & Tech. 7,175-85 (2006).

48 Id.

49 Jennifer S. Harkness et al., Iodide, Bromide, and Ammonium in hydraulic fracturing and oil 

and gas wastewaters: Environmental implications, 49 Envtl. Sci. & Tech. 1,955-63 (2015).

50 See Kimberly M. Parker et al., Enhanced formation of disinfection byproducts in shale gas 

wastewater- impacted drinking water supplies, 48 Envtl. Sci. & Tech. 11,161-69 (2014); TDD, 

supra note 17, at 145

Response 3-TT

EPA agrees that chlorides can lead to disinfection by-product (DBP) formation in drinking water 

treatment plants downstream of UOG discharges. EPA agrees that a range of pollutants found in 

UOG wastewaters are not effectively removed at POTWs. EPA also appreciated additional data 

on iodinated DBPs in effluent from POTWs that accept oil and gas produced water.

Comments

EPA-HQ-OW-2014-0598-0968 (WA pg 6)

Until EPA’s rulemaking here becomes effective, POTWs can receive industrial wastewater in 

addition to municipal wastewater. Because POTWs are designed primarily to treat municipal 

sewage, industrial wastes are generally subject to pretreatment requirements to ensure that 

constituents in the industrial waste do not interfere with the conventional treatment processes in 

the POTW. High concentrations of salt in produced water can disrupt biological treatment in 

POTWs, although this is rarely observed, as permits often restrict POTWs to receiving oil and 

gas wastewater at less than 1 percent or 5 percent of total flow.14 Heavy metals can disrupt 

nitrification in POTWs that include this nutrient removal process; however, this disruption is 

typically seen at higher concentrations of metals than are in produced waters.15 Some organics 

that can be present in produced water (e.g., formaldehyde) have specific inhibitory effects on 

nitrification; again, this is seen at high concentrations.16

14See D.F. Kincannon and A.F. Gaudy, Jr., “Some Effects of High Salt Concentrations on 

Activated Sludge,” Journal of the Water Pollution Control Federation 38, no. 7 (July 1966): 

1148‐1159, http://www.jstor.org/stable/25035591; Fikret Kargi and Ali R. Dincer, “Effect of Salt 

Concentration on Biological Treatment of Saline Wastewater by Fed‐Batch Operation,” Enzyme 

and Microbial Technology 19, no. 7 (November 15, 1996): 529‐537, 

http://www.sciencedirect.com/science/article/pii/S0141022996000701.

15Sheng‐Jie You, Yung‐Pin Tsai, and Ru‐Yi Huang, “Effect of Heavy Metals on Nitrification 

Performance in Different Activated Sludge Processes,” Journal of Hazardous Materials 165, no. 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

108

1‐3 (June 2009): 987‐994,

http://www.sciencedirect.com/science/article/pii/S030438940801604X.

16Marta Eiroa, Christian Kennes, and Maria C. Veiga, “Formaldehyde Biodegradation and Its 

Inhibitory Effect on Nitrification,” Chemical Technology and Biotechnology 79, no. 5 (May 

2004): 499‐504, http://onlinelibrary.wiley.com/doi/10.1002/jctb.1011/abstract.

Response 3-UU

EPA agrees that high concentrations of salt can disrupt biological treatment in POTWs and that 

other pollutants found in UOG wastewaters can disrupt POTW operations. 

Comments

EPA-HQ-OW-2014-0598-0976 (CBD pg 2)

Given the breadth and quantity of harmful chemicals found in fracking fluid, it is unsurprising 

that the flowback fluid also contains harmful constituents. In California, where operators are 

required to submit a chemical analysis of flowback fluid after well stimulation events, the 

dangerous characteristics of flowback fluid have become abundantly clear. A survey of chemical 

analyses of flowback fluid dating back to April 2014 revealed that concentrations of benzene, a 

known carcinogen, were detected at levels over 1,500 times the federal limits for drinking 

water.4 Of the 329 available tests that measured for benzene, the chemical was detected at levels 

in excess of federal limits in 320 tests (97 percent).5 On average, benzene levels were around 

700 times the federal limit for drinking water.6Among other carcinogenic or otherwise 

dangerous chemicals found in flowback fluid from fracked wells are toluene and chromium-6.7 

These hazardous substances were detected in excess of federal limits for drinking water in over 

one hundred tests. Tests also found high concentrations of naphthalene, hexavalent chromium, 

selenium, strontium, and barium.

Response 3-VV

EPA agrees that flowback water can contain constituents contained in fracturing fluids, including 

benzene, toluene, naphthalene, hexavalent chromium, selenium, strontium and barium as stated 

by the commenter.

Comments

EPA-HQ-OW-2014-0598-0976 (CBD pg 3)

The EPA notes that benzene has been detected in produced water at levels as high as 800,000 

ppb, over one-hundred thousand times the EPA’s legal limit for drinking water (5 ppb).10 

Ethylbenzene was detected as high as 650 ppb; toluene at 1,700,000 ppb; total xylenes at 

440,000 ppb; pyridine at 2,600 ppb; and phenol at 460 ppb. These levels make clear that oil and 

gas industry wastewater poses a substantial risk to public health and safety.
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

109

In California, the state has long known about the presence of benzene in produced water. The 

California Department of Conservation, Division of Oil, Gas, and Geothermal Resources 

(“DOGGR”) surveyed produced water from the Central Valley region and found benzene levels 

in produced water in concentrations as high as 18,000 ppb.11 Reports submitted to state 

regulators have also shown high concentrations of benzene and other chemicals. One operator 

reported that the wastewater it injected contained benzene at 13,000 ppb; ethylbenzene at 64,000 

ppb; toluene at 170,000 ppb; and xylenes at 280,000 ppb.12

One study of produced water from fracked wells found dangerous levels of ammonium and 

iodide, which poses a risk to human health and the environment.13 A recent study also found 

that certain well stimulation methods can actually increase the level of risk of produced water by 

mobilizing heavy metals in the subsurface and bringing them to the surface.14

10 Proposed Regulations at 185570.

11 California Department of Conservation Division of Oil, Gas, and Geothermal Resources, 

Benzene in Water Produced from Kern County Oil Fields Containing Fresh Water (1993), p. 11, 

table 1.

12 Macpherson Oil Co., Letter dated Sept. 16, 2014 from Clifford E. Clement, VP of 

Macpherson Oil Co., to Steven Bohlen, DOGGR Supervisor re: Olcese Water Disposal Well 

Bishop No. 6 (2014), attaching chemical analysis of injectate.

13 Harkness, J., et al., Iodide, Bromide, and Ammonium in Hydraulic Fracturing and Oil and 

Gas Wastewaters: Environmental Implications, Environmental Science and Technology doi: 

10.1021/es504654n (Dec. 2014).

14 California Council on Science and Technology (CCST), An Independent Scientific 

Assessment of Well Stimulation in California, Vol. II (July 2015) Companies Used Millions of 

Pounds of Air-Polluting Chemicals in Los Angeles Basin Neighborhoods (2014)

Response 3-WW

EPA agrees that constituents such as benzene can be found in produced waters. The commenter 

compares concentrations of these wastewaters to drinking water standards. EPA notes that one 

would not expect these concentrations to be present at drinking water intakes or in finished 

drinking water due to the effects of dilution; nevertheless it does illustrate that there can be a 

number of pollutants in UOG wastewaters that can be of concern for downstream drinking water 

withdrawals. EPA also appreciates information on well stimulation methods mobilizing heavy 

metals in the subsurface and has included it in the record.

Comments

EPA-HQ-OW-2014-0598-0976 (CBD pg 3)

Dangers to water and health are not limited to fracking flowback or produced water. Harmful 

chemicals are used throughout oil and gas development and create many streams of toxic 

wastewater. Drilling muds, well completion fluids, well cleaning and maintenance fluids, 

enhanced oil recovery additives, and other fluids create additional wastewater that contains 

dangerous toxics. A review o well stimulation activities in Southern California showed that 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

110

formaldehyde and methanol were among the dangerous chemicals used in fracking, acidizing, 

and gravel packing. 15

15 Center for Biological Diversity et al., Air Toxics One-Year Report: Oil Companies Used 

Millions of Pounds of Air-Polluting Chemicals in Los Angeles Basin Neighborhoods (2014).

Response 3-XX

EPA agrees that wastewater from oil and gas development in addition to flowback and produced 

water can contain harmful chemicals and are of concern. EPA’s final rule applies to all 

wastewaters associated with production, field exploration, drilling, well completion, or well 

treatment for unconventional oil and gas extraction. This includes drilling muds, drill cuttings, 

produced sand, and produced water. While the applicability statement in the final rule does not 

specifically mention “acidizing,” acidizing is a part of “well completion” and “well treatment”

(as described in the TDD at Section B.1 and B.2) , and thus wastewater from acidizing at a UOG 

well is within scope of the final rule. Likewise, gravel packing is a technique that can be used at 

UOG wells in the “well completion” process, in order to prevent production of formation sand, 

and therefore wastewater from this process is also within scope of the final rule.

Comments

EPA-HQ-OW-2014-0598-0937 (CUNY pg 3)

TDS are elevated in waters by POTWs accepting oil and gas wastes. TENORM is often found in 

wastewaters9 and was found in waters downstream of drilling sites10 and in muds, sludges and 

fill from oil and gas wastes sent to landfills. 

The M5.6 quake that struck Prague, Oklahoma in 2011, leading to a few injuries and damage to 

more than a dozen homes.) See also http://earthquake.usgs.gov/regional/nca/seminars/2013‐

12‐02/

9 See, e.g., Almond, S., et al. "The flux of radionuclides in flowback fluid from shale gas 

exploitation." Environmental Science and Pollution Research 21.21 (2014): 12316-12324; 

Brown, Valeria J. "Radionuclides in fracking wastewater: managing a toxic blend." 

Environmental health perspectives 122.2 (2014): A50; Brown, Valerie J. "Radionucleótidos en 

las aguas residuales de la fracturación hidráulica. Manejo de una mezcla tóxica. Un embalse 

revestido recibe residuos en una zona de fracturación en Dimock, Pensilvania." Salud Pública de 

México 56.4 (2014): 408-415; Fair, J. Henry. "Radionuclides in Fracking Wastewater." 

Environmental Health Perspectives 122.2 (2014), http://ehp.niehs.nih.gov/wpcontent/uploads/122/2/ehp.122-A50.pdf ; Kondash, Andrew J., et al. "Radium and barium 

removal through blending hydraulic fracturing fluids with acid mine drainage." Environmental 

science & technology 48.2 (2013): 1334-1342; Lopez, Alejandro. "Radiological Issues 

Associated With the Recent Boom in Oil and Gas Hydraulic Fracturing." ASME 2013 15th 

International Conference on Environmental Remediation and Radioactive Waste Management. 

American Society of Mechanical Engineers, 2013; Nelson, Andrew W., et al. "Monitoring 

radionuclides in subsurface drinking water sources near unconventional drilling operations: a 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

111

pilot study." Journal of Environmental Radioactivity 142 (2015): 24-28; Nelson, Andrew W., et 

al. "Understanding the Radioactive Ingrowth and Decay of Naturally Occurring Radioactive 

Materials in the Environment: An Analysis of Produced Fluids from the Marcellus Shale." 

Environ Health Perspect (2015); Nicoll, Gayle. "Radiation Sources in Natural Gas Well 

Activities." Occupational Health and Safety October 1 (2012); Rich, Alisa L., and Ernest C. 

Crosby. "Analysis of reserve pit sludge from unconventional natural gas hydraulic fracturing and 

drilling operations for the presence of technologically enhanced naturally occurring radioactive 

material (TENORM)." NEW SOLUTIONS: A Journal of Environmental and Occupational 

Health Policy 23.1 (2013): 117135; Resnikoff, Marvin. "Radioactivity in Marcellus Shale: 

Challenge for Regulators and Water Treatment Plants." 

Contemporary Technologies for Shale-Gas Water and Environmental Management. Water 

Environment Federation (2012): 45-60; Schubert, Jeffrey P., Michael F. Rosenmeier, and Mark 

P. Zatezalo. "A Review of NORM/TENORM in Wastes and Waters Associated with Marcellus 

Shale Gas Development and Production." Shale Energy Engineering 2014@ sTechnical 

Challenges, Environmental Issues, and Public Policy. ASCE; Ying, Leong, and Frank O’Connor. 

"TENORM radiological survey of Utica and Marcellus Shale." Applied Radiation and Isotopes 

80 (2013): 95-98; Walter, Gary R., Roland R. Benke, and David A. Pickett. "Effect of biogas 

generation on radon emissions from landfills receiving radium-bearing waste from shale gas 

development." Journal of the Air & Waste Management Association 62.9 (2012): 1040-1049; 

Zhang, Tieyuan, et al. "Analysis of radium-226 in high salinity wastewater from unconventional 

gas extraction by inductively coupled plasma-mass spectrometry." Environmental science & 

technology 49.5 (2015): 2969-2976; Zhang, Tieyuan, et al. "Co-precipitation of radium with 

barium and strontium sulfate and its impact on the fate of radium during treatment of produced 

water from unconventional gas extraction." Environmental science & technology 48.8 (2014): 

4596-4603. 

10 Bou‐Rabee F, Al‐Zamel AZ, Al‐Fares RA, Bem H. Technologically enhanced

naturally occurring radioactive materials in the oil industry (TENORM). Nukleonika.

2009;54:3‐9.. See also UnitedStates Environmental Protection Agency. Oil and gas

production wastes: Radiation protection.

http://www.epa.gov/radiation/tenorm/oilandgas.html. Accessed March 18, 2015;

Conference onRadiation Control Program Directors. Regulation and licensing of

technologically enhanced naturally occurring radioactivematerial (TENORM) partN

of the suggested state regulations for control of radiation (SSRCR).Compare DeVol

TA, Woodruff Jr RL. Uranium in hotwater tanks: A source of TENORM. Health Phys. 

Response 3-YY

EPA agrees that TDS in POTW discharges can be elevated when those POTWs accept oil and 

gas wastes. EPA also agrees that TENORM can be found in wastewaters and other wastes from 

oil and gas extraction activities, and agrees that TENORM has been documented in waters 

receiving discharges of these wastes.

Comments
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

112

EPA-HQ-OW-2014-0598-0997 (EUREKA pg 1)

Eureka placed its first centralized pretreatment facility in operation in November 2008 on 

Second Street in Williamsport, PA with a capacity of approximately 4,800 barrels per day (bpd) 

or 200,000 gallons per day (gpd). The facility was originally permitted by the PADEP Bureau of 

Waste Management under General Permit WMGRl 19. In 2010, Eureka expanded the Second 

Street centralized treatment facility, so that it is now capable of treating/recycling up to 10,000 

bpd (420,000 gallons) of flowback/produced wastewater daily. The facility permit was converted 

to a WMGR123 general permit at the same time, as authorized by the PADEP Bureau of Waste 

Management.

In 2012, Eureka obtained WMGR123 permits for two additional facilities - one in Standing 

Stone Township, Bradford County, PA and one off Reach Road in Williamsport, PA. All three of 

the Eureka facilities are essentially mirror permitted facilities with 10,000 bpd capacities. All of 

the Eureka facilities are permitted to allow installation of some or all of several unit processes. 

Our Second Street Facility is an indirect discharge facility that has pretreatment, \oil recovery, 

mechanical vapor recompression distillers and methanol rectification/recovery. The Second 

Street facility discharges to the local Williamsport Sewer Authority (WSA) under an indirect 

discharge permit. Our Standing Stone facility is a direct discharge facility that has pretreatment, 

first phase crystallization (generating commercial/industrial grade dry sodium chloride and liquid 

calcium chloride brine) and membrane biological reactor/ion exchange/reverses osmosis 

treatment capability. The Standing Stone facility discharges to the Susquehanna River under an 

NPDES permit. The Reach Road facility is utilized for basic filtration and storage at this time.

Response 3-ZZ

EPA acknowledges information about the treatment systems in place at certain CWT facilities in 

Pennsylvania. This comments demonstrates that as the need for non-POTW UOG wastewater 

management approaches increased, the market responded accordingly. This further supports 

EPA’s decision to promulgate a zero discharge pretreatment standard for this rule.

Comments

EPA-HQ-OW-2014-0598-0997 (EUREKA pg 3)

Eureka has extensive wastewater characterization data (raw and treated) and may be willing to 

make this data available to the USEPA.

Response 3-AAA

EPA appreciates the commenter’s willingness to share wastewater characterization data at CWT 

facilities. EPA notes that the final rule does not apply to wastewater discharges from CWT

facilities.

Comments
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

113

EPA-HQ-OW-2014-0598-0997 (EUREKA pg 5)

Methanol -As described previously, the focus on reuse in Pennsylvania and in particular the 

Marcellus/Utica Plays has led to increasing methanol concentrations in the Pennsylvania based 

UOG Extraction Wastewater. The presence of methanol creates special treatment challenges as it

often passes· through physical chemical treatment/pretreatment processes. Eureka made the 

decision to install a methanol rectification column at our Second Street facility for this very 

reason. It provides two important benefits:

Removing the methanol from the wastewater decreases the organic loading in the pretreated 

wastewater discharged to the Williamsport Sanitary Authority.

Recovering the methanol as a by-product for reuse in the oil and gas industry reduces the amount 

of methanol being discharged to the environment (air and water) by the oil and gas industry.

Response 3-BBB

EPA appreciates information about methanol removal and recovery techniques that are available 

for UOG extraction wastewaters at CWT facilities. EPA notes that the final rule does not apply 

to wastewater discharges from CWT facilities.

Comments

EPA-HQ-OW-2014-0598-0997 (EUREKA pg 5)

Best Available Technology (BAT) - Eureka has expended considerable time and money on 

technology evaluations in an effort to define the best approach for managing/treating oil and gas 

wastewaters in the Marcellus/Utica Shale Plays. These efforts have led us to define the following 

treatment approach as BAT for UOG Extraction Wastewater:

Pretreatment:

Receiving

Primary Settling

Methanol Rectification

Oil Separation/Recovery

Raw Water Storage

Chemical Precipitation:

pH Adjustment

Chemical Addition (sodium hydroxide, sodium sulfate, soda ash)

Clarification

Sludge Dewatering:

Sludge Storage

Sludge Dewatering

Secondary Treatment - Distillation:

Pretreated Water Storage
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

114

Evaporation

Concentrated Brine Storage

Distillate Water Storage Tanks

Secondary Treatment - Crystallization

Pretreated Water Storage

Crystallization

Concentrated Brine Storage

Distilled Water Storage

Tertiary Treatment:

Biological Treatment

Ion Exchange

Reverse Osmosis (RO) System

Eureka recommends that the USEPA give consideration to the above approach in defining 

interim minimum treatment standards as part of the Proposed Rule. Eureka also recommends that 

the USEPA give consideration to the above approach in establishing national pretreatment 

standards and associated BAT.

Response 3-CCC

This rule applies to indirect wastewater discharges from UOG extraction facilities to POTWs. 

Requirements for CWT facilities (and the accompanying determination of BAT) is outside the 

scope of this rule. See Response 4-C.

Comments

EPA-HQ-OW-2014-0598-0970 (PRINGLE pg 2)

Further, constituents like chlorides and bromides can contribute to increased formation of 

disinfectant byproducts (DBPs) in the drinking water treatment process. DBPs can cause health 

effects including cancer. Some DBPs are regulated under the Safe Drinking Water Act and 

Public Water Systems must be in compliance. vii In 2008, studies by the EPA and Allegany 

County Health Department indicated that 17 drinking water intakes in the Monongahela 

watershed were at risk of high levels of DBPs which specifically can lead to increased risk of 

bladder cancer for consumers. viii 

vii NC Conservation Network. Literature Review: Adverse Health Effects of Disinfection 

Byproducts of Development and Reproductive Health. Grady McCallie, Policy Director.

viii Handke, Pal. 2009. Trihalomethane Speciation and the Relationship to Elevated Total 

Dissolved Sold Concentrations Affecting Drinking Water Quality at Systems Utilizing the 

Monongahela River as a Primary Source During 3rd and 4th Quarters of 200, PA DEP. 

Response 3-DDD
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

115

EPA agrees that constituents in UOG wastewaters can contribute to DBP formation in drinking 

water treatment.

Comments

EPA-HQ-OW-2014-0598-0970 (PRINGLE pg 2)

Radioactivity is another threat to surface water from wastewater discharges. Oil and gas 

development exposes and then concentrates naturally occurring radioactive material. As a result 

radioactive materials are present in unconventional oil and gas wastewater in potentially 

dangerous concentrations. This radioactive content in oil and gas wastewater is not adequately 

removed by water treatment processes. As a result, highly concentrated levels of radium have 

been detected in the sediment of streams receiving oil and gas wastewater.ix 

ix Warner, Nathaniel R, et al. Impacts of Shale Gas Wastewater Disposal on Water Quality in 

Western Pennsylvania. Environmental Science & Technology. (September 2013)

Response 3-EEE

EPA agrees that TENORM in UOG wastewaters may not be removed by POTWs and thus can 

be discharged to surface waters.

Comments

EPA-HQ-OW-2014-0598-0939 (KALLIO pg 1)

This unconventional waste fluid contains heavy metals, bromides, chlorides, benzene, toluene, 

and fracking fluid chemical additives. It can also contain long-lived water soluble radium 226 

and228 and radioactive isotopes. It is our understanding that the Clean Water Act legal limit for 

radium is 5 pic/L given its serious toxicity. Reports from around the nation strongly suggest that 

the radium in this waste stream is typically found in levels that greatly exceed the legal limit. 

Response 3-FFF

EPA agrees that UOG wastewaters can contain a number of contaminants, including those 

described by the commenter. The commenter mentions a 5 picocuries per liter limitation for 

radium. EPA notes that this is a Safe Drinking Water Act (SDWA) limitation for drinking water, 

which is expressed as a Maximum Contaminant Level (MCL) of combined radium-226/228 of 5 

picocuries per liter. Additional information can be found at 66 FR 76708 (December 7, 2000).

Comments

EPA-HQ-OW-2014-0598-0777 (ANONYMOUS pg 1)

In Pennsylvania the geology of the land does not allow for wastewater to be injected into deep 

well for disposal. Therefore, “From July 2009 to June 2010, 729,000 m3 of Marcellus Shale 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

116

hydraulic fracturing wastewater was reported in PA. Of the total, 77.5% was sent to approved 

industrial wastewater treatment facilities, 16% was reused in other wells, 5% was sent to 

municipal wastewater treatment facilities, 1% had unknown disposal, 0.5% was injected into 

deep wells, and 0.007% was spread on roads” (Rozell & Reaven p. 1387). In 2010 Pennsylvania 

adopted pretreatment requirements that required a max Total Dissolved Solids (TDS) 

concentration of 500 mg/L for oil and gas wastewaters that were discharged to POTWs. This 

caused the companies in the state to adjust to different disposal methods. Wastewater disposal in 

Pennsylvania, “Met a significant increase in the amount of wastewater trucked to Ohio for 

disposal via underground injection, from roughly 26 million gallons in 2010 to 106 million 

gallons in 2011” (Schmidt p. A117). 

Response 3-GGG

EPA acknowledges information about wastewater disposal volumes in Pennsylvania.

Comments

EPA-HQ-OW-2014-0598-0796 (Yarnold ODA pg 1)

Green technology is now proven and available to clean water associated with hydraulic 

fracturing, and in particular the leading methodology known as the Ozonix process offers mobile 

machinery to easily, rapidly, and economically clean the waste water from fracking operations 

on-site. In addition, recent research evaluated the comparative production of wells treated by 

Ozonix versus by traditional chemical biocide, and found that the green Ozonix methodology 

added significantly to the bottom line of well operators.

Response 3-HHH

EPA appreciates information about on-site wastewater treatment practices that can be used prior 

to reusing/recycling UOG wastewaters. The technology referenced by the commenter is used for 

bacteria and corrosion control (not TDS removal). EPA notes that reuse/recycle is among the 

practices that UOG operators can utilize to achieve zero discharge of pollutants to POTWs.

Comments

EPA-HQ-OW-2014-0598-0796 (Yarnold ODA pg 1)

. Four articles on this subject are available via the open access peer-reviewed eJournal, Optimal 

Data Analysis: http://ODAJournal.com.

Response 3-III

EPA appreciates information on the relationship between biocides and human health.

Comments
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

117

EPA-HQ-OW-2014-0598-0974 (CBF pg 1)

In 2008, UOG extraction wastewater in Pennsylvania led to such high TDS and sulfate 

concentrations in the Monongahela River that 17 potable water supply intakes exceeded water 

quality standards.1 Elevated chloride and bromide levels were also detected in the Monongahela 

watershed, both of which can lead to the increased formation of disinfectant byproducts (DBPs) 

in the drinking water treatment process. A study by the Environmental Protection Agency (EPA), 

Pennsylvania Department of Environmental Protection (DEP), and Allegheny County Health 

Department concluded that the higher levels of DBPs in the 17 drinking water intakes in the 

Monongahela watershed “increased risks of bladder cancer” to consumers.2 Several studies also 

documented the “adverse effects of discharges of TDS, sulfates and chlorides on the aquatic 

communities in receiving streams.”3 In response, DEP issued more stringent regulations for oil 

and gas wastewater discharges to POTWs.4 

1 Proposed Rulemaking: 25 Pa. Code Ch. 95, Wastewater Treatment Requirements, 39 

Pennsylvania Bulletin 6467 (Nov. 7, 2009). 

2 Id.; see also, Paul Handke, Water Program Specialist, Pa. Dept. of Envtl. Prot.., 

Trihalomethane Speciation and the Relationship to Elevated Total Dissolved Solid 

Concentrations Affecting Drinking Water Quality at Systems Utilizing the Monongahela River 

as a Primary Source During 3rd and 4th Quarters of 2008 (2009). 

3 Id. 

4 25 Pa. Code. § 95.10.

Response 3-JJJ

EPA appreciates information related to effects of UOG wastewater discharges on drinking water 

and aquatic communities. EPA notes that the zero discharge pretreatment standard in this final 

rule addresses these potential impacts by prohibiting the discharge of pollutants in UOG 

wastewater to POTWs.

Comments

EPA-HQ-OW-2014-0598-1010 (H ZEHNAL pg 1)

Our cousin in Charleroi PA now has cancer and she lives in a town where they definitely ran the 

fracking wastewater with 5001000 undisclosed toxic chemicals like cancercausing benzene, 

diesel, etc. through the local publicly owned treatment works (POTW), according to an article 

done by Scientific American With Natural Gas Drilling Boom, Pennsylvania Faces Flood of 

Wastewater. 

Response 3-KKK

EPA acknowledges the commenter’s concern about the health of a family member. EPA notes 

that POTWs in Pennsylvania are no longer accepting these wastewaters and that this rule 

prevents discharge of UOG wastewaters to POTWs in the future. 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

118

Comments

EPA-HQ-OW-2014-0598-0808 (AK DEC pg 1)

DEC has noted a technical reporting error on page 18576 of the April 7, 2015 Federal Register 

Notice.

Federal Register text on page 18576: For example, Alaska has a criterion of 1,500 mg/L TDS to 

protect aquatic life;

DEC notes that the EPA reported value for Alaska criterion for TDS is incorrect and should read 

as: Alaska has a criterion of 1,000 mg/L TDS to protect aquatic life uses per the Alaska Water 

Quality Standards 18 AAC 70.020(b)(4)(C) amended as of April 8, 2012.

DEC Requests that this value be corrected in any and all corresponding documentation.

Response 3-LLL

EPA notes correction described by the commenter. The referenced TDS criteria does not appear 

in the preamble to the final rule.

Comments

EPA-HQ-OW-2014-0598-0942 (DONNAN pg 2)

I have published a series of blogs which add further details and documents to what I have 

summarized above at my website donnan (dot) com under Bob's Blog at /blog (dot) htm which is 

also linked from the right navigation bar. 

Response 3-MMM

EPA appreciated information provided by the commenter on contaminants found in drinking 

water.

Comments on the Availability of Recycling

Comments

EPA-HQ-OW-2014-0598-0967 (NE pg 3)

EPA acknowledges that the ability to reuse the wastewater generated in the fracturing of one 

well for the fracturing of another well is dependent, among other things, on the "water demand 

for new fracturing jobs."11 An oil and gas well will produce water throughout its lifetime;

however, that water can only be reused if new fracturing jobs are taking place nearby. This is a 

key element in determining whether the current amount of water reuse as a wastewater 

management strategy can or will continue into the future. The "demand for new fracturing jobs," 

is dependent on the pace of development, which varies from one region of the country to another,
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

119

and which is often cyclical in any region of the country. Where, as here, EPA is basing its 

national standard on a technology whose availability can vary significantly from place to place 

and from time to time, depending on a variety of factors, it needs to take that variability into 

account. Noble does not believe it can assume that there will continue to be sufficient "water 

demand for fracturing jobs" in each region of the country to make water reuse a viable 

wastewater management strategy.

RECOMMENDATION: Noble respectfully requests that EPA amend the zero discharge 

standard to allow pretreatment and discharge to POTWs. 

11 Id. at 18571.

Response 3-NNN

The commenter states that water can only be reused if new fracturing jobs are taking place 

nearby. EPA disagrees. A new fracturing job does not need to be located nearby for water to be 

reused. Rather, water would simply need to be transported a greater distance. EPA agrees that 

water demand for new fracturing jobs will vary based on factors such as the pace of well 

development. However, EPA notes that reuse/recycle in fracturing jobs is but one of many 

options for management of UOG wastewaters. Others include injection in Class II injection wells

and transfer to a CWT facility. All of these wastewater management practices are currently 

available, and EPA does not have data to indicate that these practices will not continue to be 

available nationally in the future. EPA also notes that producers have the ability to control their 

own well development schedule and can consider water demand as part of their well 

development plans in the future. See Response 1-A; Response 1-B; Response 1-C; Response 

1-D; Response 1-E; Response 1-F; Response 1-U; Response 1-CC; Response 3-D; Response 3-I;

Response 3-L; Response 3-T.

Regarding EPA’s rationale for zero discharge standards rather than numeric limitations, see also 

Response 1-BB, Response 1-PP, Response 1-GGG, Response 4-A, and Response 3-E.

Benefits of the Rule

Comments

EPA-HQ-OW-2014-0598-0977 (EIP pg 16)

The Proposed Rule will provide potential future benefit in terms of reduced public health and 

reduced cost of drinking water treatment if discharge to POTWs were to become a more 

attractive option for unconventional oil and gas wastewater. Commenters urge EPA to improve 

capacity for quantifying reduction of public health risk from drinking water and drinking water 

treatment costs avoided in Clean Water Act rulemaking processes.

Response 3-OOO

EPA agrees that the final rule could provide potential future benefits such as those described by 

the commenter if producers were to utilize POTWs in the future. EPA notes support for 

improving methods for quantifying reduced public health risks and quantifying avoided costs in 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

120

future rulemakings, but notes that EPA is not required to consider benefits in establishing 

pretreatment standards based on Best Available Technology (BAT) or Best Available 

Demonstrated Control Technology (BADCT), as this is not a required factor for consideration 

under CWA Section 304(b) or Section 306. 
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4.0 RATIONALE FOR PSES AND PSNS

Comments Regarding Regulatory Options Considered

Comments

EPA-HQ-OW-2014-0598-0953 (API pg 8)

The proposed rule, however, would not allow any of the treatment technologies to be developed 

and used in conjunction with a POTW. For instance, onsite-treatment technologies that, in 

conjunction with secondary treatment at POTWs may eliminate any pass-through or interference, 

will be banned. Multiple new technologies and companies have brought forward new 

innovations to perform advanced water treatment (desalination) in recent years. Studies show 

that existing technology can remove 97% to 99.7% of the TDS.8 The new technologies have 

reduced operational problems from scaling and reduced energy consumption per barrel treated. 

Many of the new technologies are also focused on reducing onsite labor. These efforts have 

already reduced the cost to treat high TDS produced water to a low TDS effluent. These 

advances offer significant flexibility for improved water management. In particular, desalination 

is cost competitive when there are limited local UIC disposal or reuse options.

8 EPA's Draft Study of Hydraulic Fracturing for Oil and Gas and Its Potential Impact on 

Drinking Water Resources, http://www2.epa.gov/hfstudy, pp. 8-40. Although the study is in draft 

form, it has been released for public comment and its information is relevant to EPA’s 

proposed pretreatment standard for UOG.

Response 4-A

The commenter characterizes treatment technologies as a potential option to use in conjunction 

with POTWs; however, the commenter does not give any new information to the EPA, since the 

commenter uses an EPA document as its citation. EPA reviewed many technologies in its 

treatment technology report (see DCN SGE01186) that may, as the commenter suggests, reduce 

TDS levels by 97% to 99.7%. However, EPA reasonably concluded that these technologies were 

not “best” available technology or “best” available demonstrated control technology, as they 

would result in lower pollutant removals than the 100% removals of all UOG pollutants – not 

just TDS – achieved through the zero discharge technology bases underlying the final rule, and 

because zero discharge is current practice and thus is available, economically achievable and has 

no incremental and therefore no unacceptable non-water-quality environmental impacts. See 

Section IV.B of the preamble (legal discussion) for a discussion of the factors EPA considers in 

establishing PSES/PSNS. Also, see Section VI.B of the preamble for a discussion of EPA’s 

rationale for the final PSES/PSNS and for rejecting other approaches such as a non-zero 

numerical discharge standard. See Response 1-G; Response 1-Z; Response 1-BB; Response 

1-PP; Response 1-GGG. To the extent that the commenter is suggesting that POTWs could 

remove remaining TDS or other UOG pollutants, see Response 1-F and Response 1-M. To the 

extent that POTWs are or become capable of such removals, removal credits may be available 

under the statute for any such removals. See Response 1-F; Response 4-G.
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

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Comments

EPA-HQ-OW-2014-0598-0967 (NE pg 3)

EPA states at the outset that "[t]his proposed rule would ...ensure that the current practice of not 

sending wastewater discharges from the oil and gas sector to POTWs continues into the 

future."12 We believe this statement is contrary to the goal set by the Clean Water Act for 

pretreatment standards. In fact, the CWA establishes that Pretreatment standards are to be 

established to ensure that pollutants in industrial wastewater discharged to POTWs do not "pass 

through" the POTWs nor are they to "cause or contribute to a violation of any requirement of the 

POTW [discharge] permit," The statute goes on to say that such pollutants must not "interfere" 

with the POTW treatment processes- i.e. they must not "inhibit or disrupt the POTW's treatment 

processes or prevent biosolids use consistent with the POTW's chosen method of disposal." 13 

Furthermore, the CWA establishes that pretreatment standards are not to be established simply to 

ensure that no industrial wastewater is ever discharged to a POTW. EPA's apparent goal from the 

outset to ensure that no wastewater from the UOG sector will ever be discharged to POTWs has 

led to the flaws in its analysis that are described below.

RECOMMENDATION: Based on the above, we recommend that the proposal be amended to 

include pretreatment standards with numerical or technology-based limitations that will prevent 

pass through of potential oil and gas sector contaminants and eliminate potential disruptions to 

POTWs. The oil and gas sector has for many years been testing and implementing water 

treatment technologies that are capable of removing potential contaminants that could be used if 

such a pretreatment standard were enacted.

u Id. at 18559.

Response 4-B

EPA disagrees with the commenter that the final rule does not meet the goal set by the Clean 

Water Act for pretreatment standards (see Response 1-A, Response 1-B, Response 1-C, 

Response 1-M, Response 1-P, Response 1-Z, and Section VI of the preamble, which described 

EPA’s rationale for the regulatory options evaluated including non-zero numerical pretreatment 

standards). EPA further notes that, contrary to the commenter’s suggestion, the goal of EPA’s 

final rule was not “to ensure that no wastewater from the UOG sector is ever discharged to a 

POTW.” Rather, EPA’s final rule was based on establishing standards to prevent pass through 

and interference based on a consideration of the requisite statutory factors. 

Comments

EPA-HQ-OW-2014-0598-0967 (NE pg 5)

in the case of UOG extraction wastewater, EPA appears to have determined that there are levels 

of pretreatment-other than the zero pollutant discharge standard that applies to direct dischargesthat are adequate to ensure that indirect discharges do not cause "pass through" or "interference." 

In its discussion of centralized waste treatment facilities (CWTs), to which some UOG extraction 

wastewater is currently sent, EPA notes that some CWT facilities lawfully discharge
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

123

that wastewater (following pretreatment) to POTWs in accordance with what are termed 

Industrial User Agreements .17

RECOMMENDATI ONS: Noble respectfully requests that EPA consider those levels of 

pretreatment that are adequate for discharge from CWTs and apply them, where appropriate, to 

discharges from UOG extraction.

17 Id. at 18571.

Response 4-C

The commenter notes that CWT facilities lawfully discharge treated UOG wastewater to 

POTWs, recommending that EPA similarly allow UOG facilities to discharge treated wastewater 

to POTWs at the same level of pretreatment required for indirectly-discharging CWT facilities. 

EPA notes that the CWT sector is a separate industry regulated under 40 CFR part 437 and not 

subject to this final rule. Under the pretreatment standards for CWT facilities at Part 437, CWT 

facilities are in fact authorized to discharge to POTWs subject to certain numeric limits on 

particular pollutants. See PSES and PSNS standards at 40 CFR Part 437 for the various subparts. 

These pretreatment standards were based on EPA’s consideration of the requisite statutory 

factors – including technological availability and economic achievability – for the CWT industry

at the time of promulgation. However, this final rule is based on a consideration of these factors 

for the unconventional oil and gas extraction industry. Although the pollutants in the wastewater 

from these two separate industrial categories may be similar, the technology based requirements 

may differ based on application of the specified CWA BAT/BADCT factors on an industry-byindustry basis. Therefore, although EPA found that a non-zero pretreatment requirement met the 

statutory factors for the CWT industry, EPA concluded that zero discharge would achieve the 

greatest pollutant removals and was available, economically achievable, and did not pose any 

incremental and therefore any unacceptable non-water-quality environmental impacts for the 

UOG industry, and thus appropriately required a zero discharge of pollutants in UOG wastewater 

to POTWs. 

EPA further notes that in evaluating requirements for this final rule, EPA reviewed technologies 

used to treat oil and gas extraction wastewater, including those used at some CWT facilities. See

DCN SGE01186. EPA ultimately rejected non-zero numerical pretreatment standards based on 

those technologies. For a discussion of why EPA selected a zero discharge standard for this final 

rule, see the preamble section VI, Response 1-BB, Response 1-PP, Response 1-GGG, and 

Response 4-A.

Comments

EPA-HQ-OW-2014-0598-0941 (AXPC pg 4)

But water scarcity is a growing concern and a compelling reason EPA should rethink its O&G

ELG Rule and preserve the POTW option. The use of saltwater injection wells is a safe and 

effective means of disposal, but it is a practice which, like the O&G ELG Rule, forecloses the 

possibility of beneficial reuse. Though not practical at present, there may come a day when it 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

124

will make more sense to replenish water sources and combat the scarcity issue by diverting to 

POTWs an ever-increasing percentage of the substantial volumes of produced water currently 

being injected each year. 

Drought-prone states in the arid west particularly need to preserve all potential tools in the water 

conservation toolbox. Centralized Waste Treatment (“CWT”) facilities operated by various UOG 

operators have long been a staple of life west of the 98th meridian, sustaining wildlife as well as 

the ranching and farming operations which would otherwise have no reliable source of water. As 

such, CWTs point to the untapped potential of POTWs, which could play a far greater beneficial 

reuse role if technology and industry resolve are permitted to be applied to achieve the 

breakthrough necessary for POTWs to begin treating produced water on a commercial scale. In 

their recently issued policy resolution, the Western Governors’ Association acknowledged the 

vitally important role technology must play in a water secure future: 

Technology exists to use produced, reused and brackish water – sources traditionally considered 

to be marginal or wastewater. Adoption of this technology has been limited by inadequate data, 

regulatory obstacles, financial barriers, public attitudes and logistical uncertainties. Governors 

support regulatory streamlining and policy options to encourage use of produced, brackish, and 

reused water where appropriate.3

The O&G industry as a whole is synonymous with innovation, but UOG operators in particular 

are an enterprising and entrepreneurial group. Just as microchip manufacturers continue to 

develop smaller transistors which redefine the realm of computing possibilities so, too, are UOG 

operators constantly finding new ways to increase output and reserves, routinely shattering their 

own short-lived records, and demonstrating an uncanny ability to innovate their way to 

profitability in hostile regulatory and price environments. Discharge to POTWs may not be 

desirable or conceivable today, but EPA should not underestimate, as it has done in the O&G 

ELG Rule,4 UOG operators’ aptitude to discover ways to do it safely and economically 

tomorrow. For example, the notion that produced water could be recycled on a commercial scale 

was regarded with skepticism only a few short years ago. Today, however, many operators have 

embraced water recycling as a means to boost their respective bottom lines and ensure water 

resource availability in the future, thereby transitioning a once questionable concept into a 

commonplace practice that has been a boon not only to our industry but also the public and the 

environment. UOG operators will continue to be defined by their resourcefulness, but all the 

 

3 WESTERN GOVERNORS’ ASSOCIATION, WATER RESOURCE MANAGEMENT IN THE WEST, POLICY RESOLUTION 

08 (2015), http://www.westgov.org/policies/301-water/989-water-resource-management-in-the-west (emphasis 

added). 

4 O&G ELG Rule, supra note 1, at 18,561: 

The [O&G ELG Rule] could impose some costs on industry if discharging 

wastewaters to POTWs becomes economically attractive to UOG operations 

relative to other management options such as reuse or disposal via underground 

injection wells in the future. EPA did not estimate these potential compliance 

costs or environmental benefits because of the uncertainty about future demand 

for POTWs to accept UOG extraction wastewaters and the associated 

incremental costs or benefits. 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

125

innovation in the world can’t enable them to overcome a categorical ban on the discharge of 

produced water to POTWs. EPA’s O&G ELG Rule threatens to stifle the very creativity which 

has allowed our industry to strengthen our nation, and it prematurely robs all Americans of the 

potential for greater water security in the future. 

Response 4-D

In response to the commenter’s notion that zero discharge will limit water availability, see 

Response 2-L. In response to the commenter’s suggestion that “many operators embraced water 

recycling,” EPA agrees that recycling is a viable option for meeting the zero discharge standard 

(see Section VI of preamble and TDD Chapter D.3). Effluent limitations guidelines and 

standards are technology-forcing regulations, and EPA expects that technologies for reuse and 

recycling will continue to improve to address water scarcity issues. See Response 1-CC (pointing 

to record support indicating that industry has greatly expanded its knowledge about the ability to 

reuse/recycle UOG wastewater in fracturing another well). 

Comments

EPA-HQ-OW-2014-0598-0802 (RAMSEY pg 1)

These provisions have helped to regulate the fracking industry in Pennsylvania and should be 

studied and taken into consideration for success at a national level.

EPA-HQ-OW-2014-0598-0802 (RAMSEY pg 2)

This regulation should also be put into place due to the fact that it has been known that POTWs 

are incapable of properly treating waste water discharged containing TDS. Although this 

regulation would be accompanied by costs for the pretreatment of waste water, we only have a 

limited amount of freshwater available to us on Earth. Although waste water containing TDS 

does not have a direct negative effect on human health, it could have a negative effect on aquatic 

life in rivers and streams. Since waste water cannot be properly treated by POTWs it will cause 

the release of highly salty water into rivers and streams. This would not be good for various 

reasons. We recommend a nation limit of TDS to be 500ppm, the same amount established in 

Pennsylvania’s Secondary Drinking Water Standards.

Response 4-E

The commenter states that “POTWs are incapable of treating waste water discharged containing 

TDS.” This is consistent with information in the preamble and record for the final rule. As 

explained in the preamble, POTWs typically provide secondary level treatment, and thus, are 

designed to remove suspended solids and organic material using biological treatment. In the 

TDD, EPA specifically indicates that “secondary treatment technologies are not designed to 

remove the TDS, radioactive constituents, metals, chlorides, sulfates, and other dissolved 

inorganic constituents found in UOG extraction wastewater.” See TDD Chapter D (Section 

D.5.3). EPA also examined removals by tertiary treatment, used at some POTWs, and similarly 

found that tertiary treatment technologies are not designed to remove such pollutants. See 

Response 1-M.
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126

EPA agrees that TDS from UOG wastewater could have a negative effect on aquatic life. See 

Preamble Section VII.C.2 (documenting aquatic life impacts associated with TDS).

EPA disagrees with the commenter’s statement that TDS from UOG wastewater does not have a 

direct negative effect on human health. TDS in UOG wastewater consists of a number of 

dissolved pollutants, such as radium, barium and strontium. These pollutants have documented 

impacts on human health. An example is disinfection byproduct formation, which has been 

documented to occur in areas influenced by UOG discharges. See TDD D.5.3.3; DCN 

SGE01093; DCN SGE01126.

EPA did not set a numeric pretreatment limitation such as that suggested by the commenter (i.e., 

“500 ppm in the same amount established in Pennsylvania’s Secondary Drinking Water 

Standards”), as EPA has instead established a zero discharge pretreatment standard that achieves 

greater pollutant removals and is technologically available, economically achievable, and has no 

incremental and therefore no unacceptable non-water-quality environmental impacts. See 

Response 4-A; Preamble Section VI.B (explaining why EPA did not select Option 2, a non-zero 

numeric limit).

Comments

EPA-HQ-OW-2014-0598-1054 (NACWA pg 1)

However, NACWA believes that EPA should periodically review this rule as environmental 

impacts of various chemicals are finalized and evaluate potential pretreatment technologies for 

UOG extraction wastewater. In the future, concerns that such discharges can disrupt POTW 

treatment processes may be eliminated or minimizes or it may be technologically practical for 

POTWs to accept discharges from oil and gas extraction facilities, subject either to national 

pretreatment standards or local limits. 

Response 4-F

In response to the commenter’s suggestion “that EPA should periodically review this rule as 

environmental impacts of various chemicals are finalized and evaluate potential pretreatment 

technologies for UOG extraction wastewater,” EPA first notes that PSES/PSNS are technology 

based – not water quality based – requirements, and thus established based on pollutant removals 

achievable by application of specified levels of technology, not on information regarding the 

environmental impacts of particular chemicals. In addition, with respect to changes in potential 

pretreatment technology, EPA notes that the final rule does not specify use of any particular 

technology – therefore, to the extent that other technologies are developed that would allow 

operators to meet the zero discharge requirements, the rule would not preclude use of such 

approaches. In addition, removal credits may be available to the extent that there are 

technologies that would allow for POTWs to remove UOG pollutants. See Response 4-G. 

Finally, EPA reminds the commenter that EPA conducts an annual review of pretreatment 

standards, as required by Section 304(g) of the Clean Water Act, as reflected in its bi-annual 

notice regarding its effluent guidelines planning process.
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127

Variances and Removal Credits

Comments

EPA-HQ-OW-2014-0598-0953 (API pg 21)

While EPA may not be concerned about this overly broad definition for purposes of this 

rulemaking because it is opting not to undertake the required analysis, the Agency should 

consider the impact of this interpretation on removal credits. A removal credit provides a 

variance from an otherwise applicable categorical pretreatment requirement that reflects the 

POTW’s removal of that pollutant.69 But if the “pollutant of concern” is the produced water 

itself, how could any POTW demonstrate that removal or grant such a variance? Even if the 

“pollutant of concern” were not the produced water itself, but some undefined subset thereof, 

POTWs still could not demonstrate the removal or grant removal credits. Allowances for 

removal credits were mandated by Congress in the CWA,70 and EPA may not promulgate a rule 

that effectively removes those credits.

Similarly, the CWA requires EPA, with concurrence of the state, to allow the facilities to meet 

pretreatment requirements different than those in a categorical standard if certain factors are 

demonstrated.71 Among those “fundamentally different factors” is a demonstration that the 

alternative requirement is no less stringent than the categorical standard.72 Here again, if the 

“pollutant of concern” is the produced water itself, how could a facility ever make the 

demonstration of equal stringency or avail themselves of a mechanism specifically provided by 

Congress?

The CWA requires EPA to “identify, in terms of amounts of constituents and chemical, physical, 

and biological characteristics of pollutants, the degree of effluent reduction attainable . . .”73 In 

this proposed rule, EPA failed to even identify the pollutant. If finalized in this form, this 

proposed rule would be in violation of the CWA.

69 40 C.F.R. § 403.7.

70 42 U.S.C.§ 1317.

71 42 U.S.C.§ 1311.

72 42 U.S.C.§ 1311.

73 42 U.S.C.§ 1314(b).

Response 4-G

The commenter suggests that EPA identified the “’pollutant of concern’ as the produced water 

itself”, but the commenter is mistaken. In the final rule EPA identified the pollutant of concern to 

be all pollutants in the UOG wastewater (see Section VI. of the preamble). See Response 1-M.

EPA also disagrees with the commenter’s assertion that the rule “failed to even identify the

pollutant,” and thus violates the CWA. The CWA requirement cited by the commenter requires 

EPA to “identify, in terms of amounts of... pollutants, the degree of effluent reduction 

available.” Contrary to the commenter’s assertion, the final rule does in fact identify the amount
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

128

of pollutants that would be reduced by application of the BAT/BADCT candidate technologies –

specifically, the final rule prevents discharge of all pollutants in UOG wastewater from UOG 

extraction facilities to POTWs.

EPA also disagrees that the final rule would necessarily preclude the availability of removal 

credits and fundamentally different factors variances. EPA’s final rule specifically references the 

availability of removal credits under Part 403.7 and fundamentally different factors variances 

under Part 403.13. See 40 CFR 435.33(a). In order for a POTW to obtain authorization to 

provide removal credits, among other requirements, the POTW must demonstrate consistent 

removals of pollutants in UOG wastewater. Then, if other regulatory requirements for 

authorization to provide removal credits are met, including obtaining authorization from the 

approval authority, the POTW could provide credits to the UOG operator for such removals. For 

FDF variances, a UOG facility or POTW would need to demonstrate that factors related to that 

facility are fundamentally different from those considered by EPA in establishing the 

pretreatment standard, and that other regulatory requirements are met.

The commenter seems to suggest that the CWA prevents EPA from ever setting a zero discharge 

pretreatment standard because it would preclude the availability of removal credits or 

fundamentally different factors variances. EPA disagrees. Clearly, Congress envisioned EPA 

would establish zero discharge requirements as this is the express goal of the CWA. See

Response 1-H; Response 1-E. 

With respect to removal credits, EPA first notes that the statute gives POTWs the authority to 

grant removal credits if certain conditions are met, but does not mandate that such credits be 

made available to dischargers. See CWA Section 307(b) (indicating that pretreatment standards 

“may be revised” by POTWs to reflect pollutant removals by such POTWs). EPA recognizes 

that in the context of a zero discharge pretreatment standard, although an operator could obtain 

removal credits for a particular pollutant or pollutants by demonstrating POTW removals of such 

pollutant(s), it would still be subject to zero discharge pretreatment requirements for other 

pollutants in its wastewater for which it did not obtain a removal credit. Therefore, practically 

speaking, in order to discharge its wastewater to a POTW using a removal credit for a particular 

pollutant in that wastewater, a UOG operator would need to achieve 100% removals of all other 

pollutants in UOG wastewater in order to comply with the zero discharge pretreatment standard. 

In EPA’s view, it would be difficult for a UOG facility to achieve 100% removal of all 

remaining pollutants in UOG wastewater. But, to the extent that a facility is able to do so, 

nothing in the rule would prevent a POTW from granting a UOG facility a removal credit for a 

particular pollutant in the wastewater and the facility then discharging the remaining wastewater, 

free of all other pollutants, to the POTW. Similarly, if POTWs develop the technology to 

consistently remove all pollutants in UOG wastewater, nothing in the rule would prevent a 

POTW from granting a UOG facility credit for all such removals, thus allowing a UOG facility 

to discharge all pollutants in its wastewater to the POTW.

Similarly, with respect to fundamentally different factors variances, the statute authorizes EPA, 

in concurrence with the state, to grant such variances if certain conditions are met, but again, 

does not require that such variances be available. Also, it is not clear how the zero discharge 

requirements in this final pretreatment standard preclude a UOG facility’s ability to obtain an 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

129

FDF variance, as the commenter suggests. The commenter misstates the statutory requirement, 

indicating that it requires a showing that the alternative is “no less stringent than the categorical 

standard.” Rather, the statute requires a showing that the “alternative requirement is no less 

stringent than justified by the fundamental difference.” Thus, contrary to the commenter’s 

suggestion, the statute does not require a comparison of the stringency of the alternative FDF 

approach with the zero discharge categorical requirement – and the commenter’s concern 

regarding lack of specified pollutants to make such comparison is misguided.

Variability in the Industry

Comments

EPA-HQ-OW-2014-0598-0953 (API pg 7)

This proposed rule would establish a permanent and restrictive regulation that would eliminate a 

potentially non-consumptive water treatment option in favor of, inter alia, consumptive options 

like UIC disposal (which is not a treatment technology) – based on only a partial snapshot of the 

industry and its produced water management practices as they exist today.

EPA is proposing to regulate the oil and natural gas industry’s produced water management 

options based on an incomplete understanding of those options as they exist today. The oil and 

natural gas industry, however, is far from a static industry. Indeed, America’s emerging energy 

independence is a function of innovation. Technological and economic considerations that 

govern produced water management practices today are continuously advancing. Ten years ago, 

few would have recognized a need to holistically examine water management practices in places 

like Pennsylvania and West Virginia. Similarly, ten years from now, EPA and the oil and gas 

industry will be confronting challenges and opportunities that we may not foresee today, while 

the rapid evolution of technologies and practices will have likely solved many of the specific 

issues that we might predict today.

EPA recognized this dynamic development at numerous points in the Technical Development 

Document. Indeed, the Technical Development Document discusses at length the rapid 

expansion of unconventional oil and gas extraction, the water management changes that 

necessarily followed that expansion, and changes in state and federal regulations in response to 

this expansion.5

It is contradictory that EPA, throughout the proposed rule and the technical development 

document, is profoundly aware6 of the speed with which the oil and gas industry must innovate 

and evolve and yet views that certain change as a justification to fix industries’ current practices 

and before they change again.

5 See TDD at Ch. A.1, Ch. B, Ch. D.

6 See TDD at Ch. A.1, Ch. B, Ch. D.
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

130

EPA-HQ-OW-2014-0598-0953 (API pg 9)

In light of the rapid changes and innovations in the oil and natural gas industry and the 

importance of maintaining non-consumptive water options, EPA should preserve companies’ 

flexibility in the management of produced water from UOG. 

EPA-HQ-OW-2014-0598-0967 (NE pg 2)

the proposal implies that the "current industry practice" of managing its wastewater in ways 

other than by pretreating discharging it to POTWs can and will continue to be sufficient into the 

future. However, this assumption appears inconsistent with a number of the facts supporting the 

EPA proposal, and does not comport with our own predictions on disposal capacities for the 

following reasons:

First, EPA acknowledges that the continued use of hydraulic fracturing is projected to lead to an 

"increase [in natural gas production of] 56 percent by 2040, compared to 2012 production."7 

With this new production, there will be larger amounts of wastewater to manage. Yet EPA 

makes no apparent effort to analyze whether the current management options will be adequate to 

handle

that additional wastewater . While our industry's ability to innovate is remarkable, we remain 

concerned that this growth potential will require ALL (and perhaps more) available water 

management options, including pretreatment and discharge to POTWs.

Response 4-H

All comments under Section 4.3 “Variability in the Industry”, are addressed by the following 

response.

EPA disagrees with the commenters’ assertion that its regulation is based on an “incomplete 

understanding” of water management options. EPA used all available information at this time to 

assess water management alternatives for purposes of this rule, and the commenters fail to 

provide any additional specific information regarding why EPA’s understanding is “incomplete.” 

Rather, the commenter just provides a general statement that innovation may lead to different 

approaches in the future. EPA recognizes that industry may continue to innovate and notes that, 

following establishment of ELGs, industry may find alternative approaches to comply with 

discharge requirements than those EPA identified at the time of promulgation. EPA does not 

agree that this zero discharge standard in any way limits the ability of the industry to innovate. 

With respect to the commenters’ concern that EPA should preserve flexibility, EPA notes that it 

did not set a mandatory technology for the industry, instead it set a zero discharge standard (see 

Section IV of the preamble for background on BAT and pretreatment standards), without 

mandating the specific technologies or management practices for how the industry meets this 

zero discharge standard. See Response 2-G. With respect to the commenter’s concern that the 

rule favors “consumptive” water management practices (UIC disposal) over “non-consumptive” 

practices, EPA notes that the final rule does not require UOG facilities to dispose of their 

wastewater in underground injection wells and that the candidate technology bases include water

management practices such as reuse/recycling in fracturing other wells, transfer to a CWT 

facility for treatment. Furthermore, the final pretreatment standards in no way restrict the ability 

of UOG facilities to re-use wastewater in other applications. See Response 2-L. With respect to 

the comment that EPA has failed to analyze whether the current wastewater management 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

131

practices will be sufficient to handle the increasing amounts of wastewater expected to be 

generated by UOG extraction, see Response 3-L and Response 3-O (comment response 

discussing lack of record basis to support finding that disposal options will not be available in the 

future). See Response 1-A; Response 1-B; Response 1-C; Response 1-D; Response 1-E;

Response 1-F; Response 1-U; Response 3-D; Response 3-I; Response 3-L; Response 3-T; 

Response 3-NN. 

Variability and Trends in Wastewater Management Strategies Over Time

Comments

EPA-HQ-OW-2014-0598-0953 (API pg 7)

While today’s economics may strongly favor UIC use as a disposal option in many parts of the 

country, that may not always be the case. Treatment technologies for produced water treatment 

have seen significant technological advances and associated cost reductions over the last five 

years. Advanced water treatment is increasingly cost competitive when there is limited local UIC 

capacity or local reuse options. “New advancements in water recycling technology are being 

made; however, this information may be limited in the public domain, as some of the material, 

particularly chemical composition, is considered proprietary. There has been an increase in 

mobile recycling and wastewater treatment units during oil and gas field development.”7

7Texas-White-Paper-on-Water-Management)

EPA-HQ-OW-2014-0598-0953 (API pg 8)

Management plans will necessarily need to change with time as hydraulic fracturing activities in 

a region change. The volumes of produced water also change during the life of a well. The 

chemical composition of the produced water can change throughout the lifespan of a well. In 

addition, the demand for reused water to support ongoing fracturing activities will change. Taken 

in aggregate, these factors may influence costs and choices associated with hydraulic fracturing

produced water management, especially if Class II disposal wells are limited in a particular area 

for any reason.9

9 Id. at pp. 8-70.

EPA-HQ-OW-2014-0598-0951 (IPAA pg 5)

there are identifiable limits to the use of recycling. 

First, and foremost, recycling of waste water for use in developing new wells is clearly limited 

by the pace of development not only nationally but in a specific area. Aggressive recycling has 

occurred in the past several years because drilling activity has been so intense. Not only has 

drilling been intense generally, it has been locally as well. Recycling requires the ability to 

collect adequate volumes of waste water and the ability to move the water efficiently to new 

wells. Consequently, in areas like the Marcellus Shale or the Eagle Ford, the density of 

development created the opportunity to gather adequate waste water volumes economically, 

transport them to new well sites and utilize the water for fracturing. 

Second, not all waste water can be recycled. While location and volume are the most significant 

factors, the quality of the water can be important as well. The same contaminants in waste water 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

132

that raise concerns about its discharge to receiving waters can affect its utility in recycling. If 

these contaminants are in concentrations that interfere with the functioning of the fracturing 

process, the water would have to be treated. Many treatment options exist but the cost could be 

prohibitive depending on the nature of the contaminants. 

Third, in mature areas where recycling is no longer a cost effective, or even plausible, option, an 

alternative will be essential. If Class II UIC capacity is not available for produced water 

management in those areas, the producer could be forced to shut in producing wells. The CWA 

does not envision such an inappropriate outcome as a part of a BATEA analysis. 

As in the case of assessing the UIC option, EPA does not thoroughly assess the limitations of 

recycling as an alternative to discharges. Consequently, it skews the decision toward a zero 

discharge conclusion.

Response 4-I

All comments under Section 4.4 “Variability and Trends in Wastewater Management Strategies 

Over Time”, are addressed by the following response.

EPA agrees that wastewater management approaches will change over time. See Response 4-H.

EPA also recognizes that there are various factors that may influence the costs and choice 

associated with wastewater management practices for a particular facility. However, EPA notes 

that the final rule does not prescribe any particular wastewater management practice, thus 

allowing UOG operators to select how to meet the zero discharge requirement. EPA describes 

several practices in the preamble for producers to meet the zero discharge pretreatment standard, 

including use of injection wells, recycling and reuse, and transfer to CWT facilities. Although 

EPA recognizes that all of these practices may not be available to all operators at all times, EPA 

found that – because operators are currently meeting zero discharge requirements – that the zero 

discharge technology and wastewater management practices are available to the industry as a 

whole. See Response 1-A; Response 1-B; Response 1-C; Response 1-D; Response 1-E;

Response 1-F; Response 1-U; Response 2-D; Response 3-D; Response 3-I; Response 3-L;

Response 3-T; Response 3-NNN. 

Removal of Publicly Owned Treatment Works as a Wastewater Management 

Option

Comments

EPA-HQ-OW-2014-0598-0953 (API pg 3)

Numerous API members may be impacted by this proposed ELG because it would eliminate a 

potentially viable produced water treatment option - thus narrowing the spectrum of management 

alternatives.

Response 4-J

EPA agrees that a zero discharge standard for this final rulemaking narrows the wastewater 

management alternatives potentially available to UOG operators. As stated in the preamble and 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

133

elsewhere in the record supporting the final rule, POTWs are not an appropriate management 

approach for unconventional oil and gas extraction wastewaters, since various pollutants 

contained in those wastewaters are not amenable to treatment in POTWs and thus can pass 

through or cause interference at the POTW. Moreover, EPA notes that it does not have any 

evidence, even after specifically soliciting public comment on this issue, that UOG wastewater is 

being managed through indirect discharge to a POTW at this time. Therefore, EPA reasonably 

found that zero discharge is available, economically achievable (for BAT) and poses no barrier 

to entry for new sources (for BADCT), and 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. EPA further notes that several 

other management practices are available to meet the zero discharge requirement, including use 

of injection wells, recycling and reuse, and transfer to CWT facilities. See Section VI of the 

Preamble to the final rule; Response 1-A; Response 1-B; Response 1-C; Response 1-D;

Response 1-E; Response 1-F; Response 1-M; Response 1-P; Response 1-U; Response 2-D;

Response 2-G; Response 3-D; Response 3-I; Response 3-L; Response 3-T; Response 3-NNN.

Support for the Rule or Describe a Need for the Rule

Comments

EPA-HQ-OW-2014-0598-0957 (EDF pg 2)

Despite the apparent absence of discharges of UOG extraction wastewater to POTWs, there is a 

clear need for this rule to, at a minimum, maintain the current, protective status quo. Water 

management choices are impacted by a wide array of factors including cost, feasibility, 

infrastructure availability, regulations, as well as operator discretion and requirements for 

management strategies that may vary over time with production levels.6 As noted by the 

Pennsylvania experience, in times of need – where infrastructure was not available – operators 

quickly turned to the convenient use of POTWs, and have since been asked to modify their 

strategies to include higher reuse volumes and other discharge options including Centralized 

Wastewater Treatment (CWT) facilities only in the wake of negative environmental impacts.7 

This proposed rule protects other states from suffering similar experiences as water management 

strategies, needs, and options continue to change in the future. Establishing a national rule places 

all regulated entities and regulating authorities on the equal footing while also preventing a 

potential “race to the bottom” among competing neighboring states with UOG resources and

infrastructure to offer.

EPA-HQ-OW-2014-0598-0957 (EDF pg 7)

An important fact to consider when addressing pass through relates back to earlier comments 

regarding constituents potentially present in wastewater and the need for additional or improved 

detection methods. Pass through, as defined in 40 C.F.R. § 403.3(p), means “a discharge which 

exits the POTW into waters of the United States in quantities or concentrations which, alone or 

in conjunction with a discharge or discharges from other sources, is a cause of a violation of any 

requirement of the POTW’s NPDES permit.” In a case such as this, where the character of the 

incoming waste stream is ill-defined and the approved methods for measuring many potential 

constituents are lacking, general “pass through” limitations as a level of protection retain little 

meaning. Unknown, undetectable, or otherwise undisclosed constituents in UOG (and 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

134

conventional) extraction wastewater influent will not be part of a POTW permit, will not be 

monitored, and will not be tracked for pass through. Pass through, therefore, in its common sense 

meaning is inevitable, though pass through as administratively defined and regulated is currently 

difficult to confirm or deny and therefore essentially unavailable as a protective barrier for UOG 

wastewater discharges. EPA’s decision to avoid this complication and manage the high risk of 

pass through by prohibiting discharges to the POTW appears to be the only option that will 

provide confirmed protections for human health and the environment at this time. 

Furthermore, a significant issue not yet addressed by these comments is sludge interference. 

Interference is defined as inhibiting or disrupting the POTW, its treatment processes or 

operations, or its sludge processes, use or disposal.23 Therefore, POTWs may not accept 

pollutants that not only disrupt their treatment process, but may also contaminate their biosolids 

such that the POTW’s chosen method of use or disposal of those biosolids is no longer 

possible.24 EPA standards for the use or disposal of sewage sludge allow POTWs across the 

country to dispose of their sludge through land application (i.e., to fertilize crops), through 

landfilling or via incineration.25 EDF is aware that a large percentage of POTWs choose to land 

apply (often through selling or giving away their biosolids) or utilize landfills. The pollutant 

concentration and loading rate limits established in 40 C.F.R. pt. 503 for land application directly 

address only heavy metals such as arsenic, lead, and zinc.26 Residual waste streams associated 

with treatment of UOG wastewater can contain many significant contaminants not currently 

regulated by part 503, most importantly radioactive materials such as NORM. EPA’s technical 

document for this rulemaking indicated that because UOG wastewater constituents are not 

typical of influent wastewater, the constituents may accumulate in sludge, limiting its use.27 

Issues with contaminated sludge could significantly impact the cost of doing business for a 

POTW, particularly if it had to change the way it disposed of sludge. Additionally, given the 

current sludge management programs and regulations in place, the risk of contaminated sludge 

reaching land disposal or land application sites undetected could be high.

23 40 C.F.R. § 403.3(k).

24 Attachment to Memorandum from James Hanlon, Director of EPA’s Wastewater 

Management to EPA Regions, titled “Natural Gas Drilling in the Marcellus Shale under the 

NPDES Program (March 16, 2011), at 8.

25 40 C.F.R. §. 503.

26 40 C.F.R. § 503.13, Tables 1-4.

27 EPA Technical Development Document for Proposed Effluent Limitations Guidelines and 

Standards for Oil and Gas Extraction, at 111.

EPA-HQ-OW-2014-0598-0977 (EIP pg 3)

The Proposed Rule would set a zero-discharge limitation for existing and new pretreatment 

sources. This effluent limitation would match the effluent limitation for direct UOG discharges. 

Setting similar discharge standards for direct and indirect discharges from UOG facilities is in 

line with the pollution reduction objectives of the CWA and with the statutory requirements of 

the CWA. Section 307(b)(1) of the Act states that pretreatment standards "shall be established to 

prevent the discharge of any pollutant through [POTWs], which pollutant interferes with, passes 

through, or otherwise is incompatible with such works."7 As described in greater detail in Part 

III.C, there is well-supported evidence that UOG wastewater pollutants interfere with, pass 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

135

through, and are incompatible with POTWs. The Act’s main exception to these pretreatment 

standards is in the instance where a POTW can treat the pollutants such that the discharge from 

the POTW does not violate the effluent limitation or standard applicable to non-POTW sources 

(i.e., direct discharges).8 In other words, whether the discharge goes through a POTW or is 

direct from a source, it should be subject to the same effluent limitation. By setting a zerodischarge standard, EPA is taking into account the characteristics of UOG wastewater and the 

zero-discharge standard for direct discharges and therefore is properly adhering to this statutory 

requirement.

In addition to this statutory authority, indirect discharges to POTWs from UOG sources should 

also be zero discharge because the BPT for direct discharges from unconventional oil and gas 

operations requires zero discharge.9 To comply with the CWA and ensure that that all 

discharges from the same industry category, direct or indirect, are subject to the same effluent 

limitation, EPA must require zero discharge. Other subcategories of the oil industry also require 

similar limitation levels for direct and indirect sources. The ELGs for the oil extraction industry 

in the Coastal Extraction category require zero discharge for both direct and indirect 

discharges.10

This similarity in discharge levels is supported by several examples of ELGs in other industries. 

Both the ink formulating industry and the paint formulating industry have zero-discharge ELGs 

for existing and new direct sources and a zero-discharge requirement for indirect discharge to 

POTWs from existing and new sources.11 Other industries with ELGs that require numerical 

limitations other than zero discharge require the same levels or very similar levels for direct and 

indirect pretreatment.12 EPA is correct in continuing this precedent of setting ELGs for PSES 

and PSNS at the same level as direct discharges, as many POTWs do not have the ability to treat 

industrial discharge and the pollutants present in UOG discharge must be prevented from 

entering U.S. waterways.

EPA has also followed legal precedent by setting the ELG as zero discharge. In NRDC v. EPA, 

the Third Circuit found a statutory requirement under section 307(b)(1) to “require pretreatment 

for indirect dischargers analogous to the BAT standards for direct discharge.”13 The court 

explained that indirect dischargers and direct dischargers are to be held to the same standard to 

ensure that discharge which is preventable by the best available technology did not occur 

whether it was directly from a source or through a POTW.14 The court also provided a 

compelling reason for holding that discharges should be held to strict similar limitations: “a 

single discharge of a toxic pollutant can do irreparable damage to the ecology of a body of water, 

killing fish and other life forms.”15

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

Category, 80 Fed. Reg. 18,557, 18,560 (Apr. 7, 2015) [hereafter Proposed Rule].

5 See Texas Oil & Gas Ass’n v. EPA, 161 F.3d 923, 934 (9th Cir. 1998); BP Exploration & Oil, 

Inc. v. EPA, 66 F.3d 784, 803 (6th Cir. 1995).

6 33 U.S.C. § 101(a).

7 See 33 U.S.C. § 1317(b)(1).

8 Id.
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

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9 See Proposed Rule, 80 Fed. Reg. at 18,572.

10 See 40 C.F.R. §§ 435.43-435.47 (setting the ELGs for produced water, drilling fluids, and 

produced sand at no discharge).

11 See 40 C.F.R. §§ 446.12-446.16, 447.12-447.16 (setting the ELG at zero discharge for both 

direct and

indirect discharge for the subcategory of Oil-Base Solvent Wash Paint and Oil-Base Solvent Ink 

Wash, respectively).

12 See 40 C.F.R. §§ 464.13-464.16 (setting the ELG for copper, lead, and zinc at the same levels 

for direct

and indirect discharges in the Aluminum Casting Category of the Metal Molding and Casting 

Industry), 471.12-471.15 (setting the ELGs for direct and indirect discharges at the same or very 

similar levels for the Lead-Bismuth Forming category of the Non-Ferrous Metals Forming and 

Metal Powders Point Source industry).

13 Natural Res. Def. Council v. EPA, 790 F.2d 289, 294 (3d Cir. 1986).

14 Id. at 295.

15 Id. at 305.

EPA-HQ-OW-2014-0598-0977 (EIP pg 5)

EPA’s Proposed Rule to require zero discharge to POTWs from UOG facilities is necessary to 

fill the gap in federal and state law. The federal regulations for UOG facilities currently address 

only direct discharges and leave indirect discharges to be covered by the National Pretreatment 

Program.16 The National Pretreatment Program is insufficient because UOG wastewaters are 

not among the categorical prohibitions and do not require zero discharge from these facilities. At 

the state level, few state governments regulate UOG discharge to POTWs, and no state requires 

zero discharge of UOG wastewater to POTWs.17

Those opposing the Proposed Rule may argue that the National Pretreatment Program is 

sufficient to prevent UOG wastewater from being discharged to POTWs, and therefore the 

Proposed Rule is an unnecessary use of Agency time and resources. This is incorrect because, as 

mentioned, UOG wastewaters are not among the categorical prohibitions and zero discharge is 

not the required standard. While the objective of the program is to prevent discharges that would 

cause pass through or interference with the POTW, the POTW must first determine that a 

particular discharge will cause pass through or interference. Additionally, the National 

Pretreatment Program puts an affirmative responsibility on the POTW to issue Industrial User 

(IU) permits (when it is delegated the authority to do so). To issue an IU permit, the POTW must 

survey the IUs subject to the National Pretreatment Program, determine if the IU’s discharge 

would cause interference or pass through, evaluate their own ability to treat the discharge, and 

then implement a system to control the discharge. This process puts a significant burden on 

POTWs which is relieved by the Proposed Rule and prevents POTWs from having to process IU 

requests to accept UOG wastewater. The Proposed Rule also replaces a cumbersome, inefficient 

process with a clear, precise rule that UOG discharges are not to be treated by POTWs. This is 

the most efficient way to ensure these pollutants do not enter U.S. water bodies.

Those opposing a zero-discharge standard may also assert that UOG wastewater discharges to 

POTWs are regulated by the states. However, state regulation is not adequate. No states require 

zero
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

137

discharge for UOG wastewater, and this is the standard that is necessary to prevent harmful 

wastewaters from passing through POTWs into waters of the United States.18

While industry currently disposes of most of its wastewater via underground injection, there is a 

possibility with the ever‒expanding UOG industry that this may no longer be the industry’s 

preferred option in the future, and these facilities will again send wastewater to POTWs. Without 

EPA’s Proposed Rule codifying current industry practice and mandating that UOG facilities not 

discharge wastewater to POTWs, these facilities will be free to resume the practice.

13 Natural Res. Def. Council v. EPA, 790 F.2d 289, 294 (3d Cir. 1986).

14 Id. at 295.

15 Id. at 305.

16 See 40 C.F.R. § 403.1 et seq.

17 See, e.g., EPA, EPA Technical Development Document for Proposed Effluent Limitation 

Guidelines and Standards for Oil and Gas Extraction 9-10 (Mar. 2015) [hereafter TDD].

18 See id. at 9-10.

EPA-HQ-OW-2014-0598-1019 (ENV AMERICA pg 1)

Attached please find 18,495 petition signatures from Environment America's online activists 

from across the country, urging the EPA to adopt its proposed rule that would prohibit the 

disposal of fracking wastewater at sewage treatment plants. Below are the contents of the 

petition. Thank you for taking the views of our members into consideration.

I support EPA's proposal to prohibit the discharge of unconventional oil and gas wastewater to 

Publicly Owned Treatment Works.

Fracking uses a wide range of toxic chemicals that can contaminate our drinking water, pose 

health threats to our families and pollute our waterways. High concentrations of heavy metals, 

chemical additives and even cancer causing compounds such as benzene have been found in 

wastewater produced by fracking.

This wastewater shouldn't be sent to sewage treatment plants that were never designed to handle 

all of the pollutants found in it. This would allow pollutants to directly enter our waterways 

putting at risk downstream rivers and streams, and potentially impacting sources of drinking 

water for millions of Americans.

I urge the EPA to adopt this rule prohibiting the discharge of unconventional oil and gas 

wastewater to POTWs 

EPA-HQ-OW-2014-0598-0977 (EIP pg 1)

The proposed rule would close a potentially harmful gap in the regulation of UOG discharges by 

requiring a zero-discharge effluent limitation for new and existing UOG sources. This rule is 

necessary to prevent UOG facilities from discharging untreatable and harmful wastewater to 

POTWs. EPA has made the correct decision by proposing a zero-discharge limitation and should 

maintain this position for the purpose of protecting human and environmental health.
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

138

EPA-HQ-OW-2014-0598-0977 (EIP pg 3)

A zero-discharge limitation for new and existing facilities discharging to POTWs is in line with 

the CWA’s objective. ELGs are to be based on available technology. As EPA has demonstrated, 

the technology facilitating zero discharge for UOG facilities exists and is economically feasible. 

For this reason, this available zero-discharge technology should be utilized to minimize the 

discharge of UOG pollutants to the furthest extent possible. Any numerical limitation other than 

zero would permit UOG facilities to increase the amount of pollutants discharged from the 

current amount discharged, which is zero. Such an increase would be a counterintuitive to the 

core purpose of the CWA and put public health and the environment at risk of exposure to 

harmful pollutants.

EPA-HQ-OW-2014-0598-0977 (EIP pg 19)

EPA should not deviate from the zero-discharge requirement as this is the limitation is based on 

the best available technology, in line with the purposes of the CWA, and the only way to ensure 

the protection of public health and the environment.

EPA-HQ-OW-2014-0598-0968 (WA pg 2)

We agree with EPA that prohibiting discharge of unconventional oil and gas wastewater to 

POTWs is the most commonsense policy.

Sewage treatment plants should not be burdened with treating toxic oil and gas wastewater that 

they were not designed to treat. We are aware that some oil and gas operators have sent their 

wastewater to these plants. The proposed rule is necessary to fill a gap in federal regulations and 

to reflect new realities of oil and gas production. This approach provides certainty to oil and gas 

drilling companies, includes no added cost burden and is in step with evolving industry practices.

EPA-HQ-OW-2014-0598-0968 (WA pg 6)

Treatment of produced waters at POTWs in systems that face capacity limitations is also a 

concern. POTWs are typically designed to treat a specific average flow rate of sewage. They 

have some additional capacity to manage short-term higher flows during storm events, but many 

systems do not have significant excess capacity under all conditions (e.g., during a period 

marked by multiple storm events). Systems with capacity limitations—due to inflow and 

infiltration associated with aging pipe systems or wet-weather flows that exceed pipe or plant 

capacity—could exacerbate uncontrolled overflow conditions if the volume or timing of 

produced water treatment is not adequately managed.

EPA-HQ-OW-2014-0598-0968 (WA pg 7)

At present, a regulatory gap exists with regard to shale gas wastewater that is sent to POTWs. 

The discharge of shale gas wastewater to POTWs is allowed in most jurisdictions. However, 

POTW discharge of shale gas wastewater can have serious environmental consequences, since it 

includes pollutants, such as dissolved solids (i.e., salts), that pass through POTWs untreated or 

interfere with POTW functions by disrupting biological treatment units. The Clean Water Act’s 

general prohibition against pass-through and interference at POTWs is difficult to implement and 

enforce for shale gas wastewater because many POTWs are not required to test their discharges 

for the pollutants that such wastewater contains.21 In addition, POTWs have rarely established 

local limits on those pollutants.22 Many states have not developed their own pretreatment 

standards for shale gas wastewater. Consequently, national pretreatment standards are needed to 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

139

fill this regulatory gap and create a uniform baseline that will provide consistent protection for 

water quality in areas undergoing shale gas development.

We strongly support EPA’s rule here that categorically bans the discharge of shale gas 

wastewater to POTWs. Even if standards could be set that limit the pollutants in pretreated shale 

gas wastewater adequately to protect POTWs and the environment, POTWs have limited 

capacity, and that capacity is already needed to treat municipal wastewater. Regulators must be 

careful to avoid situations in which a growing volume of shale gas wastewater displaces other 

types of wastewater that need POTW treatment. This is a dynamic that could occur if shale gas 

operators were to offer higher prices to POTWs in return for the ability to discharge. While all 

forms of shale gas wastewater management present certain risks and potential impacts to health 

and the environment, other disposal options are likely less harmful and more appropriate than 

discharge through POTWs.

21(interference); see, e.g., Ian Urbina, “Regulation Lax as Gas Wells’ Tainted Water Hits 

Rivers,” N.Y. Times, February 26, 2011, A1 (explaining that POTWs are not required to monitor 

or test for radioactive material contained in shale gas wastewater).

22Notice of Final 2010 Effluent Guidelines Program Plan, 76 Fed. Reg. 66,286, 66,297 (Oct. 26, 

2011).

EPA-HQ-OW-2014-0598-0968 (WA pg 8)

EPA has the legal authority to set the instant rule’s “no discharge” standard. The Clean Water 

Act directs the agency to set pretreatment standards that are adequate to “prevent the discharge 

of any pollutant through [POTWs], which pollutant interferes with, passes through, or otherwise 

is incompatible with such works.”23 The most reliably effective way to prevent these impacts is 

to forbid the introduction of shale gas wastewater to POTWs altogether. Consistent with this 

understanding of the Act, the agency’s guidance document for the national pretreatment program 

states that one of the possible types of categorical pretreatment standards for industrial 

wastewater is “[s]tandards that prohibit discharges of any kind.”24 Indeed, the agency has set 

such a “no discharge” standard for several other types of industrial wastewater, including coastal 

oil and gas wastewater.25 EPA should do the same with its shale gas wastewater categorical 

pretreatment standards and set a “no discharge to POTWs” standard for shale gas wastewater.

23 33 U.S.C. §§ 1317(b)(1), (c).

24 U.S. EPA, Introduction to the National Pretreatment Program, June 2011, 3‐5,

http://www.epa.gov/npdes/pubs/pretreatment_program_intro_2011.pdf.

25 See 40 C.F.R. 435.46‐435.47.

EPA-HQ-OW-2014-0598-0937 (CUNY pg 5)

US residents cannot rely on state oil and gas laws to protect the water supply of downstream 

neighbors. Federal regulation is needed. 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

140

For example, although Pennsylvania promulgated wastewater treatment effluent standards that 

targeted TDS and chloride in 2010, Chapter 9512 regulations only applied to new or renovated 

facilities. Facilities permitted prior to the promulgation of Chapter 95 were exempt. POTWs in 

Pennsylvania can, indeed must, continue accepting oil and gas wastewater from grandfathered 

facilities even if acceptance results in a discharge of effluent high in TDS and exceeding the 

limits set by Chapter 95. 

While growing a robust domestic energy supply is a national security interest, ensuring clean, 

safe drinking water is also an elemental human right and need. Promulgating pretreatment 

regulations for new and existing sources that require no discharge of pollutants is an extremely 

important step in maintaining public health and safety. 

EPA-HQ-OW-2014-0598-0970 (PRINGLE pg 2)

We strongly urge EPA to take the following steps: 

Finalize the Effluent Limitations Guidelines and Standards for the Oil and Gas Extraction Point 

Source Category rule which would utilize existing federal water pollution controls and establish 

a zero discharge standard effectively prohibiting on-shore unconventional oil and gas extraction 

discharges to POTWs. 

EPA-HQ-OW-2014-0598-0769 (POHLY pg 1)

I strongly support EPA’s proposal to update the Clean Water Act’s Effluent Limitation 

Guidelines to prevent oil and gas wastewater pollution. I agree with EPA that prohibiting 

discharge of unconventional oil and gas wastewater to Publicly Owned Treatment Works is the 

most commonsense policy. 

Sewage treatment plants should not be burdened with treating toxic oil and gas wastewater when 

they were never designed to do so. We know some oil and gas operators have sent their 

wastewater to these plants. This rule is necessary to fill a gap in federal regulations and to reflect 

new realities of oil and gas production. This approach provides certainty to oil and gas drilling 

companies, includes no added cost burden and is in step with evolving industry practices. 

EPA-HQ-OW-2014-0598-0974 (CBF pg 2)

We urge EPA to finalize the Effluent Limitations Guidelines and Standards for the Oil and Gas 

Extraction Point Source Category rule which establishes a zero discharge standard and 

effectively prohibits UOG extraction wastewater discharges to POTWs. 

EPA-HQ-OW-2014-0598-0818 (GRINDLEY pg 1)

I agree that prohibiting discharge of unconventional oil and gas wastewater to Publically Owned 

Treatment Works is common sense.

Municipal sewage treatment plants lack the ability to treat toxic oil and gas wastewater and they 

were never designed to do so. The oil and gas operators that have sent their wastewater to these 

plants have revealed both this gap in federal regulation as well as the dangerous practices they 

willingly employ.
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

141

EPA’s approach provides regulatory certainty, adds no costs, and conforms to evolving industry 

practices.

EPA-HQ-OW-2014-0598-0818 (GRINDLEY pg 1)

This is something that NEEDS to be Extremely and Ultimately Separated from ALL WATER 

TREATMENT PLANTS in AMERICA UNEQUEVICALLY AND WITH NO ACCEPTIONS 

OR UNETHICAL LOOPHOLES

EPA-HQ-OW-2014-0598-0841 (BURCH pg 1)

I strongly support EPA’s proposal to update the Clean Water Act’s Effluent Limitation 

Guidelines to prevent oil and gas wastewater pollution. I agree with EPA that prohibiting 

discharge of unconventional oil and gas wastewater to Publicly Owned Treatment Works is the 

most commonsense policy.

Sewage treatment plants should not be burdened with treating toxic oil and gas wastewater when 

they were never designed to do so. We know some oil and gas operators have sent their 

wastewater to these plants. This rule is necessary to fill a gap in federal regulations and to reflect 

new realities of oil and gas production. This approach provides certainty to oil and gas drilling 

companies, includes no added cost burden and is in step with evolving industry practices.

EPA-HQ-OW-2014-0598-1014 (KLEINERT pg 1)

I am writing in support of EPA's proposal to update the Clean Water Act's Effluent Limitations 

and Guidelines to prohibit discharge of unconventional oil and gas wastewater to publicly owned 

sewage treatment plants.

EPA-HQ-OW-2014-0598-0952 (C LISH pg 1)

I strongly support Environmental Protection Agency's proposal to update and strengthen the 

Clean Water Act's Effluent Limitation Guidelines to prevent oil and gas wastewater pollution 

and to provide the greatest protections for our rivers, lakes, and streams from power plant 

pollution. I agree with the Environmental Protection Agency (EPA) that prohibiting discharge of 

unconventional oil and gas wastewater to Publicly Owned Treatment Works is the most 

commonsense policy.

EPA-HQ-OW-2014-0598-1054 (NACWA pg 1)

NACWA supports the proposed prohibition of indirect discharges to publicly owned treatment 

works (POTWs). In addition, the prohibition currently makes sense due to the ongoing research 

into the environmental impacts of the chemicals used in the extraction process and the 

prohibition of direct discharges. 

EPA-HQ-OW-2014-0598-0948 (RICHMOND pg 1)

The District does not have unconventional oil and natural gas (UOG) extraction facilities in its 

service area. The District has received requests to accept hauled wastewater from UOG 

extraction facilities but has not approved any such requests.
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

142

The District typically proclaims that local limits are best suited to control discharges to 

publically owned treatment works (POTWs) and assure compliance with NPDES standards. In 

this case, however, the District understands and supports the proposal set forth in 40 CFR Part 

435.33.

Since the District has not accepted any wastewater from UOG extraction facilities, the proposed 

Guidelines' only impact on the District will be an elimination of requests to accept UOG 

wastewater that would need to be analyzed.

EPA-HQ-OW-2014-0598-0957 (EDF pg 4)

Our list contains 647 potential constituents of concern. Only 63 of these are included on EPA’s 

current list of Priority Pollutants. The significance of this gap between potential constituents and 

commonly regulated constituents is underscored by the U.S. EPA Office of Inspector General 

Report No. 14-P-0363 on Hazardous Chemicals, published in September 2014, which concluded 

– among other things – that there was an unduly narrow focus on the priority pollutants list when 

developing POTW permit limits. EPA’s proposal to prohibit discharges of a waste stream that 

potentially contains hundreds of pollutants that are not typically addressed in POTW permitting 

and monitoring requirements is in line with the conclusions of the Inspector General Report and 

a well-supported and environmentally protective risk management decision.

EPA-HQ-OW-2014-0598-0957 (EDF pg 4)

An obvious obstacle to any effort to fully characterize pollutants found in oil and gas wastewater 

(and therefore develop a suitable set of permit limits and treatment technologies) lies in the lack 

of available and approved methods capable of correctly analyzing this unique waste stream. 

EDF’s list of potential constituents of concern includes references to both pollutants that have the 

potential to be present as well as pollutants confirmed to be present because, to our knowledge, a 

thorough characterization of produced water for all potentially present constituents has not been 

completed. Recognizing this gap, EDF has launched in-depth science efforts that will contribute 

to the growing field of research attempting to improve characterization analyses and test 

methods. At this time, however, many unknowns remain. When addressing new waste streams, it 

is vital to develop regulatory schemes for discharge by first considering what is in the influent, 

next determining how to treat those constituents, and finally, verifying that those constituents are 

adequately managed by the treatment systems prior to discharge. Without the ability to fully 

characterize these wastewaters or analyze the efficacy of treatment methods for all potential 

constituents, it is difficult – if not impossible – to write an environmentally protective permit 

without accepting the high level of risk that comes with the existing unknowns. It has been stated 

before that “you can’t treat what you don’t know,” and “you won’t find what you aren’t looking 

for.” With this understanding, EDF believes that EPA has made a sound proposal in choosing to 

prohibit UOG wastewater discharges to POTWs.

EPA-HQ-OW-2014-0598-0957 (EDF pg 7)

The long term environmental and health impact of discharges of both treated and untreated 

produced waters has yet to be fully and adequately observed, understood, or represented in peer 

reviewed literature. The high volumes of wastewater produced by the oil and gas industry28 and 
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143

the variability in chemical and physical properties contribute to the complexity of evaluating 

acute and chronic environmental impacts associated with oil and gas wastewater treatment and 

discharge.

However, sufficient information exists at this time to support EPA’s proposal to prohibit 

discharges to POTWs, particularly in light of organic substances present, potential toxicity of 

many of the substances in oil and gas wastewater,29 and the known limitations on POTW’s 

capability to treat this waste stream.30

29 Orem, W.H., C.A. Tatu, M.S. Varonka, H.E. Lerch, A.L. Bates, M.A. Engle, L.M. Crosby, 

J.McIntosh (2014) Organic substances in produced and formation water from unconventional 

natural gas extraction in coal and shale, Int’l Journal of Coal Geology, 126, 20-31, DOI: 

10.1016/j.coal.2014.01.003.

30 See, e.g., Attachment to Memorandum from James Hanlon, Director of EPA’s Wastewater 

Management to EPA Regions, titled “Natural Gas Drilling in the Marcellus Shale under the 

NPDES Program (March 16, 2011).

EPA-HQ-OW-2014-0598-0957 (EDF pg 11)

Although the body of scientific literature addressing environmental impacts of treated oil and 

gas wastewater is evolving, the existing data suggests that unmonitored and inadequately 

regulated discharges pose unquestionable risks to human and ecosystem health. Any passthrough or incomplete treatment of UOG wastewater-associated pollutants at POTWs has the 

potential to cause serious, long- term negative environmental effects.

EPA-HQ-OW-2014-0598-0976 (CBD pg 2)

The lack of information on what chemicals are being used is a critical reminder of the 

importance of the proposed prohibition for wastewater disposal. As the EPA points out, when 

there are unknown constituents in the water, it is impossible for a POTW to adequate treat it 

since it does know what chemicals need to be removed. The public cannot be adequately assured 

of the safety of treated water if it does not know what chemicals might remain in the water.

EPA-HQ-OW-2014-0598-0976 (CBD pg 4)

The lack of information about these chemicals makes water treatment impossible. Water 

treatment facilities cannot remediate wastewater if they do not know what chemical constituents 

are present. As noted in the Notice of Proposed Regulation, POTWs are not equipped to treat oil 

and gas wastewater, even if they did know all of the constituents.

EPA-HQ-OW-2014-0598-0976 (CBD pg 4)

As such, POTWs are not equipped to treat wastewater from the oil and gas industry, and the EPA 

should prohibit wastewater from the oil and gas industry from being treated at POTWs.

EPA-HQ-OW-2014-0598-0976 (CBD pg 2)

The lack of information on what chemicals are being used is a critical reminder of the 

importance of the proposed prohibition for wastewater disposal. As the EPA points out, when 

there are unknown constituents in the water, it is impossible for a POTW to adequate treat it 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

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since it does know what chemicals need to be removed. The public cannot be adequately assured 

of the safety of treated water if it does not know what chemicals might remain in the water.

EPA-HQ-OW-2014-0598-0976 (CBD pg 4)

The lack of information about these chemicals makes water treatment impossible. Water 

treatment facilities cannot remediate wastewater if they do not know what chemical constituents 

are present. As noted in the Notice of Proposed Regulation, POTWs are not equipped to treat oil 

and gas wastewater, even if they did know all of the constituents.

EPA-HQ-OW-2014-0598-0974 (CBF pg 1)

Wastewater from unconventional oil and gas (UOG) extraction contains high concentrations of 

total dissolved solids (TDS) and salt content, various organic chemicals, inorganic chemicals, 

metals, and naturally occurring radioactive materials. POTWs are not able to remove many of 

these contaminants from UOG wastewater prior to discharging into rivers and streams. These 

contaminants can harm human health, the environment, and the ability of POTWs to operate 

effectively. Furthermore, if not treated carefully and bled through the system at proper amounts, 

these compounds can impair or kill the microbes in biological treatment systems many municipal 

wastewater treatment operations are installing to meet Chesapeake Bay pollution reduction 

requirements. 

EPA-HQ-OW-2014-0598-0957 (EDF pg 4)

EDF has only limited information on this subject. According to GWPC’s recent 2014 update to 

their report series, State Oil & Gas Regulations Designed to Protect Water Resources,12 as of 

2013, only six state oil and gas agencies had permitting requirements addressing discharge to 

POTWs or other treatment facilities.13 This conclusion is limited by the fact that the GWPC 

report’s scope of review did not include non-oil and gas agencies such as environmental or 

water-focused agencies. As part of the study, GWPC surveyed a number of states regarding the 

use of POTWs for discharging produced waters. Of the states responding, three indicated they 

had a regulatory ban on this practice, five did not have a regulatory ban but would not allow it as 

a matter of policy, and nine noted that such discharges were regulated by another agency or 

would otherwise be allowed under certain circumstances.14

12 Ground Water Protection Council, State Oil & Gas Regulations Designed to Protect Water 

Resources (2014),available at 

http://www.gwpc.org/sites/default/files/Oil%20and%20Gas%20Regulation%20Report%20Hyper

linked%20Version%20Final-rfs.pdf.

13 Id. at 22.

14 Id. at 27.

EPA-HQ-OW-2014-0598-0957 (EDF pg 12)

EDF strongly supports finalization of this rule as proposed. Known pollutants in wastewater 

generated by unconventional oil and gas development contain high levels of chloride, dissolved 

solids, sulfate, and other pollutants. Treatment technologies employed by POTWs do little to 

remove these pollutants, and as a result certain contaminants may pass through and can cause 

inhibition and interference with treatment plant operations. Additionally, other constituents that 

are not typical of POTW influent may be successfully removed as part of the traditional 
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treatment process but the concentration of these previously absent and potentially toxic materials 

in the residual solids may adversely impact sludge management and disposal practices. Where oil 

and gas wastewater deliveries to POTWs were not prohibited, water quality in the receiving 

streams suffered. Although such deliveries are not standard practice at this time, increased 

demand for, or a constricted supply of, treatment and disposal options may rapidly alter the 

status quo. A nationwide zero discharge standard that is consistent with current practice will 

provide appropriate protections for both POTWs and receiving streams in the future.43

43 It should also be noted in conclusion that the Draft EPA HF Drinking Water Assessment 

indicates that conventionally produced wastes have continued to be processed at POTWs in 

Pennsylvania, despite the fact that operators stopped sending Marcellus Shale wastewater to 

POTWs in May of 2011. (Id. at 8-33). While small in volume in Pennsylvania (29 Mgal and 20 

Mgal for the years 2010 and 2011), this is still an indication that after finalization of this rule, a 

gap will remain with respect to conventional wastewater discharge to POTWs. Therefore, we 

encourage EPA to consider pursuing a future rule to address conventional discharges and fill this 

gap.

EPA-HQ-OW-2014-0598-0937 (CUNY pg 6)

First, the pretreatment regulations should clearly specify that TENORM is a regulated pollutant 

requiring discharge no greater than background levels. Drilling operators should be required to 

survey wastewater for radioactivity before delivery to the POTW.13 

13 See, e.g., Kargo, David et al, Natural Gas Plays in the Marcellus Shale: Challenges and

Potential Opportunities, Environ. Sci. Technol. 2010, 44, 5679–5684, 

http://pubs.acs.org/doi/pdf/10.1021/es903811p EPA has authority under the CWA to regulate 

TENORM and other radioactive materials not specifically addressed under the Atomic Energy

Act.. http://www.epa.gov/radiation/tenorm/regs.html#NPDES

EPA-HQ-OW-2014-0598-0970 (PRINGLE pg 1)

We strongly support the proposed rule which would better protect public health, the 

environment, and the operational integrity of Publically Owned Treatment Works (POTWs). The 

rule provides regulatory clarity to the oil and gas industry by establishing pretreatment standards 

that would prevent the discharge of pollutants in wastewater from onshore unconventional oil 

and gas extraction facilities to POTWs. 

EPA’s proposed rule is necessary to close a gap in federal regulations that leaves local 

waterways vulnerable to oil and gas wastewater pollution. A zero discharge standard is 

appropriate because wastewater from modern oil and gas development contains contaminants 

such as high salt contents (Total Dissolved Solids), radioactive materials, chemical additives and 

constituents which contribute to development of potentially harmful disinfectant byproducts at 

downstream drinking water treatment plants. These harmful pollutants have the potential to slip 

through water treatment processes and threaten water quality and drinking water sources.1
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

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1U.S. Environmental Protection Agency. Assessment of the Potential Impacts of Hydraulic 

Fracturing for Oil and Gas on Drinking Water Resources (External Review Draft) -EPA/600/R15/047 (PDF) p 429, 8-33.

EPA-HQ-OW-2014-0598-0939 (KALLIO pg 2)

Publicly owned water treatment facilities should not be burdened with treating toxic oil and gas 

waste fluid when they were never designed to do so. Our surface waters and drinking water 

supplies deserve strong protections from waste fluids from all oil and gas development. 

EPA-HQ-OW-2014-0598-0777 (ANONYMOUS pg 1)

it is favorable for the future of our Nation’s waters to not allow the wastewater from UOG to be 

processed at a POTW. These facilities are not designed or capable to process the hazardous 

components of water from UOG. For the EPA to create this rule it puts a federal limitation in 

place and relieves any potential stress that could be created on the POTWs by UOG companies 

that request a POTW to accept their wastewater.

EPA-HQ-OW-2014-0598-0976 (CBD pg 4)

As such, POTWs are not equipped to treat wastewater from the oil and gas industry, and the EPA 

should prohibit wastewater from the oil and gas industry from being treated at POTWs.

EPA-HQ-OW-2014-0598-0958 (CAPOZZELLI pg 1)

Municipal sewage treatment plants lack the ability to treat toxic oil and gas wastewater, and they 

were never designed to do so. The oil and gas operators that have sent their wastewater to these 

plants have revealed both this gap in federal regulations as well as the dangerous practices they 

are willing to employ. 

The EPA's approach provides regulatory certainty, adds no cost, and conforms to evolving 

industry practices. 

EPA-HQ-OW-2014-0598-1039 (STECKLINE pg 1)

With regards to the EPA updating the Clean Water Act's Effluent Limitations and Guidelines to 

prohibit discharges of unconventional oil and gas wastewater to publicly owned sewage plants, 

of course this should be done. In fact, I feel, considering the significant dangers fracking waste 

poses for human beings, these discharges should never be allowed in or near any water system! 

From what I understand it is now voluntary for the gas industry to cease dumping toxic 

wastewater at publicly owned sewage treatment plants that are not designed to remove the 

dangerous contaminants. Make it a law with stiff penalties against dumping contaminated 

wastewater not only at publicly owned sewage plants but privately owned sewage plants too. 

The problem is frack waste is highly toxic and there is no safe way to treat it or to remove al/ the 

contaminants that pose health and environmental threats. Furthermore If the EPA's job is to 
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147

protect our drinking water sources, it seems obvious that high volume fracking should be shut 

down until a safer way to frack is found. 

EPA-HQ-OW-2014-0598-1014 (KLEINERT pg 1)

EPA's proposal employs common sense policy for the protection of waters used by all 

Americans for safe drinking water and recreation. We cannot afford exposure of these waters to 

further risk and pollution. 

EPA-HQ-OW-2014-0598-1042 (CURRIE pg 1)

Removal of toxic waste and harmful substances is crucial to the environment to support our 

ecosystem. We as parents have enough to worry about as far as what our children are exposed to 

that have potential to cause health problems both acute and chronic. Please stop oil and gas 

wastewater discharge to our public treatment facility. 

EPA-HQ-OW-2014-0598-0952 (C LISH pg 1)

Hydraulic fracturing uses a wide range of toxic chemicals that can contaminate our drinking 

water, pose health threats to our families, and pollute our waterways. High concentrations of 

heavy metals, chemical additives, and even cancer causing compounds such as benzene have 

been found in wastewater produced by hydraulic fracturing. Toxic heavy metals in this waste--

such as arsenic, mercury, and selenium--have been shown to harm humans and aquatic life.

Municipal sewage treatment plants should not be burdened with treating toxic oil and gas 

wastewater when they were never designed to do so. We know some oil and gas operators have 

sent their wastewater to these plants, resulting in pollutants directly entering our waterways, 

thereby putting at risk downstream rivers and streams and potentially impacting sources of 

drinking water for millions of Americans. This rule is necessary to fill a gap in federal 

regulations and to reflect new realities of oil and gas production. This approach provides 

certainty to oil and gas drilling companies, includes no added cost burden, and is in step with 

evolving industry practices.

EPA-HQ-OW-2014-0598-0807 (ANONYMOUS pg 1)

Thank you EPA for addressing an important concern of both state regulators and citizens. This 

rule will clarify the process of treatment or disposal of this waste. Most importantly, this will 

help those regions that have not yet been confronted with this waste stream, but who will likely 

be faced with it as the industry expands.

EPA-HQ-OW-2014-0598-0814 (MARIAN SZMYD pg 1)

The EPA's proposed wastewater discharge rules for the oil and gas industry are essential to 

protect all citizens of the Commonwealth of PA. 

EPA-HQ-OW-2014-0598-0817 (PIETRO POGGI pg 1)

I agree that prohibiting discharge of unconventional oil and gas wastewater to Publicly Owned 

Treatment Works is common sense. 

Municipal sewage treatment plants lack the ability to treat toxic oil and gas wastewater and they 

were never designed to do so. The oil and gas operators that have sent their wastewater to these 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

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plants have revealed both this gap in federal regulations as well as the dangerous practices they 

willingly employ. 

EPA’s approach provides regulatory certainty, adds no cost, and conforms to evolving industry 

practices. 

EPA-HQ-OW-2014-0598-0820 (SHAW pg 1)

Fracking wastewater is a toxic cocktail containing extreme salt contents, benzene, chemical 

additives and radioactive materials. Oil and gas companies should NOT be allowed to send their 

wastewater to local sewage treatment plants that were never designed to treat this type highly 

polluted water.

EPA-HQ-OW-2014-0598-0844 (SLATE pg 1)

The EPA has a proposal to update the Clean Water Act to prohibit discharge of oil and gas 

wastewater to “Publicly Owned Treatment Works”. That is so basic that I am shocked that it is 

not already law. “This rule is necessary to fill a gap in federal regulations and to reflect new 

realities of oil and gas production.” 

EPA-HQ-OW-2014-0598-0871 (SORVIG pg 1)

In researching the impacts of fracking in the Marcellus region, I was told that dumped fracking 

fluid, which is very high in salts, had combined with chlorine and other water treatment 

chemicals, producing (if I recall the chemistry) trichlorohalides, some of which are carcinogenic. 

Even if I have the exact terms a little wrong, this is a serious concern and another reason why the 

industry must pay for and comply with closed-loop systems for treating or sequestering fracking 

fluids. As I'm sure you have heard many times, fracking fluids contain several hundred endocrine 

disruptors, which has only been proven by courageous researchers who have breached corporate 

secrecy on the topic. Such chemicals have no place in sewage treatment plants that cannot 

remove them from the effluent, and thus release them, possibly concentrated by the treatment 

process, into rivers and ultimately back into drinking water.

EPA-HQ-OW-2014-0598-0871 (SORVIG pg 1)

If I understand the EPA's proposed rule, it is in line with what the more responsible companies 

are evolving toward anyhow, and adds neither cost nor the dreaded "business uncertainty" to the 

situation.

EPA-HQ-OW-2014-0598-0905 (STRAWN pg 1)

I strongly support EPA’s idea to update the Clean Water Act’s Effluent Limitation Guidelines to 

prevent oil and gas wastewater pollution.

It makes no sense to allow fracking wastewater to be sent to Publicly Owned Treatment Works 

for treatment when the oil and gas industry is allowed to keep its ingredients for fracking fluids 

secret. How can Publicly Owned Treatment Works remove harmful substances from wastewater 

when they don't even know what's in that wastewater?

I agree with EPA that prohibiting discharge of unconventional oil and gas wastewater to Publicly 

Owned Treatment Works is the most commonsense policy. In order to ensure compliance, large 

fines should be imposed for those who choose to violate this prohibition, such as $1`million per 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

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day when fracking fluid ingredients are disclosed before discharge to a Publicly Owned 

Treatment Works; $10 million per day where fracking fluid ingredients are not disclosed; and 

$100 million per day for not immediately notifying a Publicly Owned Treatment Works that a 

discharge has occurred. While industry will complain loudly about the size of these fines for 

violations, the very size of these fines makes it unlikely they will ever be imposed.

Sewage treatment plants should not be burdened with treating toxic oil and gas wastewater when 

they were never designed to do so. We know some oil and gas operators have sent their 

wastewater to these plants. This rule is necessary to fill a gap in federal regulations and to reflect 

new realities of oil and gas production. This approach provides certainty to oil and gas drilling 

companies, includes no added cost burden, and is in step with evolving industry practices.

EPA-HQ-OW-2014-0598-0923 (GROSS pg 1)

The fracking industry was sending toxic and sometimes radioactive wastewater to local water 

treatment plants, facilities totally lacking the ability to treat such waste. Given the secrecy of the 

fracking industry regarding its chemicals, it is difficult to determine exactly how this wastewater 

can best be treated, but it is certainly not at local plants. 

Fortunately the EPA has updated the Clean Water Act’s Effluent Limitation Guidelines, and the 

new rule would prohibit discharge of unconventional oil and gas wastewater to Publicly Owned 

Treatment Plants. 

EPA-HQ-OW-2014-0598-0933 (ROSIN pg 1)

Don't allow waste from fracking to get into sewage plants. And according to Earthworks it is not 

true that the sewage plant is powerful enough to clean up the waste. So the waste will get into the 

ocean along with all the other stuff in that sewage plant.

If enough waster gets into the water, then the fish will get intoxicated. Thus we won't be able to 

eat the fish, since we'll get poisoned, though we may not know, and eat it anyway. We may 

realize, but that will be when the damage has at least begun.

EPA-HQ-OW-2014-0598-0942 (DONNAN pg 1)

As a citizen who has already faced the ill-effects of this issue, I would strongly urge the 

appropriate government agencies to ban the disposal of all oil and gas drilling wastewater into 

streams and waterways via POTW's or any other wastewater treatment plants. These fluids 

cannot be adequately "treated" to make them safe. 

EPA-HQ-OW-2014-0598-0942 (DONNAN pg 1)

Finally, it is my recollection that our Commonwealth of Pennsylvania only "asked" gas 

production companies to quit dumping at POTW's but did not ever "tell" them to do so. This is 

where your regulation is of utmost importance, so please help those of us who depend on water 

from streams and rivers for daily living. 

EPA-HQ-OW-2014-0598-0944 (SIMMS pg 1)

I would strongly urge the government agencies to ban the disposal of all oil & gas drilling 

wastewater into streams, waterways & wastewater treatment plants.
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EPA-HQ-OW-2014-0598-0945 (SLABE pg 1)

I strongly urge and support the very strongest protections from the waste or produced water 

coming from drilling operations through the fracking process. In western PA, we are finding 

radioactive substances over 600 times that recommended for safe drinking water and this is 

eventually going into the drinking water of the residents of Pittsburgh, PA. The EPA must act 

vigorously to protect the health, safety, and welfare of Pennsylvanians since our own state 

government has failed and is failing to do so. The waste water from the shale drilling process is 

poisoning our state and Americans in other states that are experiencing the very negative effects 

of shale drilling or the fracking process. Only the strongest regulations can hope to stop this 

poisoning of our people. Do your job and adopt the strongest regulations to curb and stop the 

abusive practices of this industry or any such industry operating in this fashion.

EPA-HQ-OW-2014-0598-0946 (ANONYMOUS pg 1)

I strongly urge banning the disposal of all oil and gas drilling wastewater into streams and 

waterways via POTW's or any other wastewater treatment plants. These fluids cannot be 

adequately "treated" to make them safe.

EPA-HQ-OW-2014-0598-0947 (ANONYMOUS pg 1)

We need to be protected against the harm this industry is causing and so far has been given a free 

pass .we need our air and water to live and we need regulations that really have been nonexistent they cannot be allowed to continue to pollute our air and water .

EPA-HQ-OW-2014-0598-0963 (ANONYMOUS pg 1)

PLEASE not only enact this regulation, but ENFORCE it! We have enough friends, relatives and 

neighbors afflicted with cancer and other neurological diseases already. 

EPA-HQ-OW-2014-0598-0973 (BRENNAN pg 1)

The danger and threats fracking waste-water pose to society have been well documented since 

2011, immediate action is well overdue to stop these contaminants from impairing our 

waterways. 

Waste-water treatment facilities are designed to treat a typical array of chemicals and waste 

expected to be generated by communities. Waste-water treatment facilities are not designed to 

handle the toxic array of chemicals generated by oil and gas exploration. Please take action now 

and protect our waterways from being diminished by fracking wastewater. 

EPA-HQ-OW-2014-0598-0978 (NISHIKAWA pg 1)

I strongly urge the appropriate government agencies to ban the disposal of all oil and gas drilling 

wastewater into streams and waterways via POTW’s or any other wastewater treatment plants. 

EPA-HQ-OW-2014-0598-0979 (BOROWIEC pg 1)

PLEASE ban the disposal of all oil and gas drilling wastewater into streams and waterways via 

POTW's or any other wastewater treatment plants. These fluids CANNOT be adequately 

"treated" to make them safe. 

EPA-HQ-OW-2014-0598-0979 (BOROWIEC pg 1)

To underscore the gravity of this situation, we understand that our previous PA governor 

(Corbett) only "asked" gas production companies to quit dumping at POTW's. He did not ever 

"tell" them to NOT to do so. This is why the EPA regulation is so important. 
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PLEASE help us to have clean water. Govenor Wolf and the DEP are still unable/unwilling to do 

their job to protect the health, safety, and welfare of Pennsylvanians. We are counting on you, 

the EPA and the federal government, to keep us safe. 

EPA-HQ-OW-2014-0598-0980 (LODGE pg 1)

I strongly urge the appropriate governmental agencies to ban the disposal of all oil and gas 

extraction wastewater into our streams and waterways through POTW’s. 

EPA-HQ-OW-2014-0598-0981 (ARNOLD pg 1)

I would strongly urge the appropriate government agencies to ban the disposal of all oil and gas 

drilling wastewater into streams and waterways via POTW's or any other wastewater treatment 

plants. These fluids cannot be adequately "treated" to make them safe. 

Over recent years we have learned more about the Radium 226 and 228 present in wastewater 

from Marcellus Shale drilling and hydraulic fracturing operations. Ra226 is the most prevalent 

element and water soluble. With these and other radionuclides like thorium and uranium, some 

with half-lives of 1600 years now appearing in nearby streams like Ten Mile Creek in Greene 

County, Pa, and flowing into the Monongahela River which is our drinking water source, it 

becomes crystal clear that these effluents, clearly linked to fracking, need to be kept completely 

out of our waterways, especially considering the other toxins and chemicals flowing back with 

them from gas well stimulation. 

I believe former Governor Corbett only "asked" gas production companies to quit dumping at 

POTW's but did not ever "tell" them to do so. This is where your regulation is of utmost 

importance, so please help those of us who depend on water from streams and rivers for daily 

living. 

EPA-HQ-OW-2014-0598-0982 (HAIMOWITZ pg 1)

I am a licensed professional engineer and a licensed wastewater treatment plant operator. 

Standard wastewater treatment plants can not properly treat "Fracking Fluid" in my opinion as a 

licensed professional. I would never accept such waste at a plant I was responsible for. So, I urge 

you to update the Clean Water Act’s Effluent Limitation Guidelines to prevent oil and gas 

wastewater pollution. I agree with EPA that prohibiting discharge of unconventional oil and gas 

wastewater to Publicly Owned Treatment Works is the most commonsense policy. 

Unconventional oil and gas production wastewater should be placed under the same rules as 

other Hazardous Industrial Wastes and should be tested for radioactivity which might 

concentrate in the sludge. 

EPA-HQ-OW-2014-0598-0983 (MARNIER pg 1)

Updating the EPA’s Clean Water Act’s Effluent Limitations and Guidelines to reflect current 

water & health concerns related to “advancements” in the oil industry’s drilling techniques (e.g. 

fracking) is a worthwhile effort. Please fight to prevent ALL contamination of our precious 

drinking water.

EPA-HQ-OW-2014-0598-1001 (DUMKE WAHL pg 1)

Our most important concern is keeping our waterways clean. Permitting oil and gas companies to 

dispose of their wastewaters into the regular sewage treatment plants should not be allowed 
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152

because these plants cannot handle the harmful contaminants. These pollutants ultimately will 

flow into our rivers, lakes, and bays. It is much better to prohibit the discharge of this 

wastewater. It would be far more costly to just allow this pollution to go on and create a situation 

where people and wildlife will suffer. We are concerned that if these harmful chemicals are 

allowed to get into the waterways that they then will effect downstream drinking supplies. 

Perhaps even more so they would affect ground water.

EPA-HQ-OW-2014-0598-1007 (SCHWEITZER pg 1)

Oil and gas drilling companies should not send wastewater to sewage plants that are not 

equipped to remove all of the contaminants that are a hazard to public health and safety. The 

U.S. Environmental Protection Agency (EPA) was created to protect this nation's air and water 

and should ban this type of wastewater disposal. The Clean Water Act's Effluent Limitations and 

Guidelines should be updated to reflect this 

EPA-HQ-OW-2014-0598-1023 (GRINBERGS pg 1)

Among other issues, we're concerned about potential toxics, carcinogens, and radioactive 

elements getting into the streams and rivers. For all the good reasons articulated by so many 

concerned and educated members of the public, I also urge EPA to mandate the tightest, strictest 

standards and best practices on water treatment regulations; we demand -and deserve -no less 

than the cleanest water Mother Nature offers -free of oil and gas industry's ever-damaging toxic 

waste.

EPA-HQ-OW-2014-0598-1026 (CROSS pg 1)

I strongly support EPA's proposal to update the Clean Water Act's Effluent Limitations and 

Guidelines to prohibit discharges of unconventional oil and gas wastewater to publicly owned 

sewage treatment plants. Sewage treatment plants are NOT designed to remove the contaminants 

found in wastewater from drilling techniques like fracking. 

The Clean Water Rule would: 

Reduces confusion about Clean Water Act protection 

Clarifies types of waters covered under Clean Water Act 

Provides more benefits to public than costs 

Helps states to protect their waters 

EPA's proposal is a commonsense policy that will protect drinking water sources and keep our 

water bodies clean.

EPA-HQ-OW-2014-0598-1034 (DUFF pg 1)

I strongly support EPA’s proposal to update the Clean Water Act’s Effluent Limitations and 

Guidelines to prohibit discharges of unconventional oil and gas wastewater to publicly owned 

treatment plants. Sewage treatment plants are not designed to remove the contaminants found in 

wastewater from drilling techniques like fracking.

EPA’s proposal is a common sense policy that will protect drinking water sources and keep our 

water bodies clean. I urge EPA to develop similar pollution protections for ALL oil and gas 

wastewater discharges.
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153

Response 4-K

All comments under Section 4.6 “Support for the Rule or Describe a Need for the Rule”, are 

addressed by the following response.

EPA acknowledges support of the need for the final rule. EPA agrees with the commenters that 

the final rule will prevent states and UOG operators from considering the indiscriminate use of 

POTWs to manage UOG wastewater in the future. It is beneficial to the states, as a practical 

matter, for EPA to establish federal regulations that require a zero discharge pretreatment 

standard that continues the existing practice of not sending UOG wastewater to POTWs, in order 

to avoid the burden for each state to potentially repeat the effort of promulgating state-level 

regulations. EPA has discussed this proposed rule with several states that have indicated that a 

federal pretreatment standard would reduce their administrative burden (DCN SGE00762; DCN 

SGE00743). EPA also agrees with the commenter that a national rule will prevent a potential 

“race to the bottom” by establishing a best available technology/best available demonstrated 

control technology pretreatment standard for all UOG producers across the nation.

One commenter, in supporting the need for the final rule, pointed to the fact that UOG operators 

in Pennsylvania were, at one point, sending their wastewater to POTWs because “infrastructure 

was not available.” Although EPA agrees that this rule will prevent future scenarios involving 

UOG wastewater being sent to POTWs, EPA disagrees with the commenter’s assertion that 

UOG operators were sending wastewater to POTWs due to a lack of infrastructure. As discussed 

in the preamble and record for this final rule, EPA has found non-POTW zero discharge 

wastewater management practices to be available and economically achievable for both existing 

and new sources.

EPA acknowledges the commenters’ concern about potential constituents of concern for POTWs 

from UOG extraction wastewater. As discussed in Section IV of the preamble, EPA identified all 

pollutants in UOG wastewater as pollutants of concern, determined that all pollutants pass 

through, and established zero discharge PSES/PSNS requirements based on its analysis of 

statutory factors. See Response 1-C; Response 1-F; Response 1-M; Response 1-P; Response 

1-MM. As a result, all pollutants in UOG extraction wastewater (including TENORM) are 

directly regulated by the final pretreatment standards. See Section IV of the preamble for more 

background on pass-through analysis conducted for this final rule. 

For more information on EPA’s record regarding wastewater characterization data on pollutants 

of concern see the TDD section C (e.g., radioactive constituents, salts, metals, organics).

EPA acknowledges the comments regarding potential environmental impacts associated with 

discharge of pollutants in UOG wastewater to POTWs. For additional discussion of 

environmental impacts considered in the final rule, see Preamble Section VII. Note that one

commenter discusses pollutants present in conventional oil and gas extraction wastewater, which 

EPA notes is outside the scope of the final rule.

EPA agrees with the commenters that some UOG extraction wastewater constituents can 

interfere with POTW operations and can accumulate in biosolids (sewage sludge), limiting their 

use (see preamble section VI and section D.5 of the TDD), which some commenters point out, 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

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could have cost implications for the POTW. EPA also acknowledges commenter’s concern 

regarding capacity-limited POTWs and collection systems; however, EPA recognizes the 

responsibility of the POTW to evaluate each potential industrial user and develop a 

determination if a new source could be burdensome for the POTW, prior to accepting the 

wastewater. See Preamble Section VI.B. Also, regarding the burden of a lack of pretreatment 

standards for UOG extraction wastewater on POTWs, see Response 4-M. 

EPA acknowledges support for the scope of the final rule. As explained in Section VI of the 

preamble to the final rule, consistent with the proposal, the scope of this final rule is specific to 

pretreatment standards for onshore unconventional oil and gas (UOG) extraction facilities (in 40 

CFR part 435, subpart C). The final rule establishes a zero discharge requirement for wastewater 

pollutant discharges from UOG extraction facilities to POTWs.

For the commenter that suggests EPA to “forbid the introduction of shale gas wastewater to 

POTWs altogether,” although EPA acknowledges the overall point of the commenter to support 

the scope of the rulemaking, EPA clarifies that the final pretreatment standards do not prohibit 

discharge of the wastewater – but rather require zero discharge of the pollutants in UOG 

extraction wastewater to POTWs. 

One commenter noted that having the same requirements for indirect and direct discharges for 

the same industry category is desirable. EPA agrees with the commenter that it acted within its 

authority under the CWA to establish the same zero discharge requirements for direct and 

indirect dischargers in this final rule. However, to the extent that the commenter is suggesting 

that EPA is always required to establish the same requirements for direct and indirect dischargers 

in an industrial category in order to “comply with the CWA,” EPA disagrees. In establishing 

pretreatment standards, Congress specifically intended that indirect dischargers achieve, together 

with the Publicly-Owned Treatment Works (POTW), the same level of pollutant removal as was 

required of a direct discharger. See Natural Resources Defense Council v. EPA, 790 F.2d 289 

(3rd Cir. 1986). See also CWA sections 301(b)(1)(A); 301(b)(2)(A) and 307. However, as 

discussed in Response 1-A, this does not mean that EPA simply applies the requirements for 

direct dischargers to indirect dischargers. In establishing categorical pretreatment standards for 

indirect dischargers, EPA takes POTW removals into account in assessing pass through; and 

considers the relevant BAT/BADCT factors with respect to indirect dischargers – and thus the 

requirements for indirect dischargers can differ from those of direct dischargers in an industrial 

category. See Response 1-A for full discussion. The commenter is correct that generally ELGs 

have standards in which wastewaters from direct and indirect industrial dischargers are subject to 

similar levels of treatment prior to discharge to waters of the U.S., however, there are examples 

where the direct and indirect discharge differ for the same industry category. EPA agrees with 

the commenter that, based on the pass through analysis and application of BAT/BADCT factors 

here, EPA appropriately established pretreatment standards for indirect dischargers that are the 

same as the BPT zero discharge requirements applicable to direct dischargers in the category. 

See Response 1-H; Response 1-F; Response 1-C.

Regarding Pennsylvania’s numeric TDS pretreatment limit, see Response 4-E
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

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EPA notes that several commenters indicated that some oil and gas operators “have sent” their 

wastewater to POTWs. EPA is assuming that these commenters are referring to past practice by 

UOG operators – and not current practice – based on the verb tense used (“have sent,” as 

opposed to “are sending”), and because EPA does not have information to suggest that UOG 

operators are currently sending wastewater to POTWs. 

EPA acknowledges the general support of the scope of the final rule; however, with respect to 

the specific sentence in the comment that states “provide the greatest protections...from power 

plant pollution”; this final rule does not address pollution from power plants, and such 

requirements are outside the scope of the final rule. 

EPA agrees that it has sufficient wastewater characterization data to support this final rule. See 

the TDD Sections C.3, Response 3-A, Response 3-B and Response 3-C. EPA also agrees that 

there may be other pollutants present for which it does not have data at this time either because 

of a lack of existing analytical methods or because of a lack of sampling and analyses for such 

pollutants in UOG wastewater – but notes that the zero discharge pretreatment requirements in 

this final rule will address all pollutants in UOG wastewater, including those for which specific 

identification data may be lacking. See Response 3-JJ. 

EPA acknowledges the information and source provided by the commenter. The data in the 

GWPC report (SGE01077) was considered in the analyses for the final rule and is in the docket 

to the rule. See TDD Chapters A and D for its reference of the report.

EPA agrees with the commenter that technologies used by POTWs have limited effectiveness for 

treatment of certain constituents present in UOG wastewaters. See Response 1-C; Response 1-F;

Response 1-M; Response 1-P; Response 2-F.

With respect to the comment regarding the need to protect drinking water from pollutants in oil 

and gas wastewater, see Response 4-L.

Regarding comments pertaining to the need for a future rule to address conventional oil and gas 

extraction wastewater discharges to POTWs, see Response 3-KK and Response 4-N. In addition, 

regulations for privately owned treatment facilities (such as CWT facilities) are outside the scope 

of this rulemaking, see Response 6-C. Similarly, the comment regarding protections against air 

impacts associated with hydraulic fracturing is outside the scope of this rule; as explained in 

Section VI of the preamble to the final rule, consistent with the proposal, the scope of this final 

rule is specific to pretreatment standards for onshore unconventional (UOG) oil and gas 

extraction facilities (subpart C). See Response 6-A. 

Similarly, the comments regarding recommended penalties for violations of the prohibition on 

sending UOG waste to POTWs are also out of scope of this rulemaking. National categorical 

pretreatment standards specify “quantifies or concentrations of pollutants... which may be 

discharged to a POTW.” 40 CFR Part 403.6. Therefore, EPA does not specify fines for violations 

of categorical pretreatment standards in the context of a national rule. Penalties for violations of 

categorical pretreatment standards are available under Section 309(d) of the Clean Water Act, 

and may also be available under state laws governing enforcement of their approved 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

156

pretreatment programs. Therefore, the comments regarding imposition of fines for violations of 

pretreatment standards are outside the scope of this rulemaking.

The comment suggesting that UOG wastewater should be identified as hazardous industrial 

waste is also out of scope, as it addresses hazardous waste under RCRA as explained in Section 

VI of the preamble to the final rule, consistent with the proposal, the scope of this final rule is 

specific to pretreatment standards for onshore unconventional (UOG) oil and gas extraction 

facilities (subpart C). See Response 6-G; Response 6-A.

With respect to the comment recommending that EPA require surveying of UOG wastewater for 

radioactivity prior to sending to a POTW, this is outside of the scope of this rulemaking.

With respect to the comment suggesting that high-volume fracking should be shut down, EPA 

notes that this rule is not regulating the process of hydraulic fracturing and therefore this 

comment is not relevant to this rulemaking.

Support for the rule: Drinking Water Protection

Comments

EPA-HQ-OW-2014-0598-0977 (EIP pg 16)

Source Water Protection is a key part of the “multi-barrier” approach to “providing safe drinking 

water to the public.”71 In a 2012 report, the National Academy of Sciences noted that “de 

facto” water reuse, in which a drinking water supply intake is located downstream from a 

wastewater treatment plant, is common and growing.72 EPA’s Proposed Rule protects drinking 

water sources from contamination by preventing pass through of pollutants present in 

unconventional oil and gas wastewater from POTWs into potential drinking water sources.

71 EPA, Source Water Protection, 

http://water.epa.gov/infrastructure/drinkingwater/sourcewater/protection/index.cfm (last visited 

July 16, 2015).

72 Nat’l Academies of Science, Understanding Water Reuse: Potential for Expanding the 

Nation’s Water Supply through Reuse of Municipal Waste Water, http://nas-sites.org/waterreuse/

(last visited July 16, 2015

EPA-HQ-OW-2014-0598-0937 (CUNY pg 2)

Federal pretreatment regulations of oil and gas wastewaters4 are extremely important to protect 

drinking water sources as well as to protect workers at POTWs. 

4 See, e.g., Akyon, Benay, et al. "Microbial Mats as a Biological Treatment Approach for Saline 

Wastewaters: The Case of Produced Water from Hydraulic Fracturing." Environmental science 

& technology (2015); Harkness, Jennifer S., et al. "Iodide, Bromide, and Ammonium in 

Hydraulic Fracturing and Oil and Gas Wastewaters: Environmental Implications." 

Environmental science & technology (2015); Johnson, Jason D., and Joseph R. Graney. 

"Fingerprinting Marcellus Shale waste products from Pb isotope and trace metal perspectives." 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

157

Applied Geochemistry (2015); Parker, Kimberly M., et al. "Enhanced Formation of Disinfection 

Byproducts in Shale Gas Wastewater-Impacted Drinking Water Supplies." Environmental 

science & technology 48.19 (2014): 11161-11169; Rahm, Brian G., et al. "Wastewater 

management and Marcellus Shale gas development: Trends, drivers, and planning implications." 

Journal of environmental management 120 (2013): 105-113; Shi, Mei, et al. "Bromide: a 

pressing issue to address in China’s shale gas extraction." Environmental science & technology 

48.17 (2014): 99719972; Snyder, Daniel. "Impact of Oil and Gas Industry Wastewater on Water 

and Sediment Chemistry In One Stream In West-Central Pennsylvania." Geological Society of 

America Abstracts with Programs. Vol. 46. No. 2. 2014; Thacker, Jonathan B., et al. "Chemical 

Analysis of Wastewater from Unconventional Drilling Operations." Water 7.4 (2015): 1568-

1579; Warner, Nathaniel R., et al. "Impacts of shale gas wastewater disposal on water quality in 

western Pennsylvania." Environmental science & technology 47.20 (2013): 11849-11857; 

Ziemkiewicz, Paul F. "Characterization of liquid waste streams from shale gas development." 

AGH Drilling, Oil, Gas 30 (2013).

EPA-HQ-OW-2014-0598-0943 (AWWA pg 1)

Given that using other recycling and disposal methods is already industry practice and the former 

use of POTWs for Marcellus UOG extraction wastewater is suspected of increasing disinfection 

byproducts for downstream drinking water treatment facilities5, AWWA supports this proposed 

regulation and believes it should be adopted in its current state. 

5 States et al 2013. Marcellus Shale drilling and brominated THMs in Pittsburgh, PA., drinking 

water. Journal – American Water Works Association 105:8:E432. 

http://dx.doi.org/10.5942/jawwa.2013.105.0093

EPA-HQ-OW-2014-0598-0971 (ANONYMOUS pg 1)

I fully support the proposed rule, as there is no safe or sustainable way to deal with fracking 

wastewater. Even if toxicity & radiation from secret hydraulic formulae can be removed, 

bromides left from municipal wastewater treatment of this wastewater convert to cancer-causing 

trihalomethane. We must do all we can to keep our dwindling fresh water supply safe and not 

provide another avenue for the fossil fuel industry to poison our environment.

EPA-HQ-OW-2014-0598-1011 (SCHULMAN pg 1)

We strongly support EPA's proposal to update the Clean Water Act's Effluent Limitations and 

Guidelines to prohibit discharges of unconventional oil and gas wastewater to publicly owned 

sewage treatment plants. Sewage treatment plants are not designed to remove the contaminants 

found in wastewater from drilling techniques like tracking. EPA's proposal is a commonsense 

policy that will protect drinking water sources and keep our water bodies clean. 

Response 4-L

All comments under Section 4.7 “Support for the rule: Drinking Water Protection”, are 

addressed by the following response.

EPA acknowledges the commenters’ concern for drinking water supplies in relation to the final 

rule. EPA agrees that preventing these potential impacts is one of the positive outcomes from this 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

158

rule. As explained in Section III of the preamble to the final rule, 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. 

Because they are not typical of POTW influent wastewater, some UOG extraction wastewater 

constituents can be discharged, untreated, from the POTW to the receiving water and can 

facilitate the formation of harmful DBPs. See Section III of the preamble for additional 

discussion.

EPA also recognizes the potential risks to POTW workers from exposure to certain constituents 

in UOG extraction wastewater, see discussion in TDD Chapter D.

General: Against the Need for this Rule

Comments

EPA-HQ-OW-2014-0598-0972 (IOGA pg 2)

IOGA-WV objects to the Proposed Rule as a wholly unnecessary regulatory change- a solution 

for a problem that USEPA admits does not exist. While a categorical prohibition that completely 

eliminates POTW disposal as a viable option may constitute the easiest regulatory approach, 

preserving varied options for the disposal of UOG wastewaters- subject, of course, to appropriate 

restrictions and conditions to ensure their safe management- surely is the most desirable one, as 

long as the methods of disposal are ensured to be environmentally sound. Indeed, the fact that 

many POTWs currently may not be sufficiently equipped to process UOC extraction wastewater 

does not mean that future advancements in wastewater treatment technology will not allow for 

the safe discharge of these wastewaters. And yet, USEPA's Proposed Rule would seem to disincentivize or otherwise inhibit such innovations. Broadly considered, the blanket elimination of 

a disposal option that may be determined to be viable on a case-by-case basis obtains a 

counterproductive result, and cannot be justified by the "regulatory certainty" provided through 

the adoption of a bright-line rule. See id. at 18561. This is particularly true where-as USEPA 

acknowledges- POTWs currently are not accepting these wastewaters for discharge and where 

concerns relating to individual constituents associated with UOG extraction wastewaters can be 

addressed (and discharges effectively prohibited) through NPDES permits issued to the 

individual POTWs.

EPA-HQ-OW-2014-0598-0813 (ANONYMOUS pg 1)

As stated in the proposed rule materials, this regulatory change in fact does nothing to address 

any potential environmental problems stemming from UOG wastewater, because the practice of 

discharging wastewater to POTWs is not the industry standard, and there are no known UOG 

facilities that are discharging wastewater to POTW plants. The current industry standards are to 

either recycle wastewater for reuse in future UOG extraction, or discharge into Underground 

Injection Control wells. For this reason, the proposed rule is an entirely unnecessary regulatory 

change. 

It is claimed that the proposed rule will prevent future discharge to POTWs, however, if this ever 

became a problem in the future, that goal could be more easily accomplished through the 

National Pollutant Discharge Elimination System (NPDES) permitting process by prohibiting 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

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POTWs from discharging the relevant pollutants into United States waterways, and thus 

preventing POTWs that are not equipped for processing such pollutants from accepting 

discharges from UOGs. The proposed rule states that many POTWs are not equipped for such 

removal, but under the proposed rule, the ones that are so equipped would be prohibited from 

accepting discharges from UOGs. This seems counterproductive. If the underlying goal is to 

prevent the pollution of US waterways, then the EPA should be allowing equipped POTWs to 

process UOG wastewater. This would likely be an even more environmentally sound method of 

disposal than Underground Injection Control wells. Our regulatory framework should encourage 

the responsible processing of such discharges.

Even though disposal through POTWs is not the industry standard currently, the proper 

regulatory regime should promote such methods if they are environmentally sound. The fact that 

many POTWs are not equipped to process UOG wastewater should not lead to the prohibition of 

any POTW from processing it. Rather, the regulations should prohibit unequipped POTWs from 

processing the wastewater.

EPA-HQ-OW-2014-0598-0722 (ANONYMOUS pg 1)

I oppose further environmental restrictions on Macellus shale drilling. Those restrictions 

currently in place are more than sufficient.

Response 4-M

All comments under Section 4.8 “General: Against the Need for this Rule”, are addressed by the 

following response.

EPA disagrees with the commenters that the final rule is not necessary or appropriate for several 

reasons. First, there is no national regulation that prevents or requires pretreatment of such 

discharges – and, as mentioned above, EPA is not aware of any POTWs that are designed to treat 

dissolved pollutants common in UOG extraction wastewater (nor did commenters provide 

information on any such POTWs). Thus, as explained in Section VI of the preamble, 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 biological oxygen demand (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. Because EPA determined that pollutants in

UOG wastewater, if discharged to a POTW, passes through and could cause interference, EPA 

appropriately exercised its authority under CWA Section 307 to set pretreatment standards for 

this industrial category. 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

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Second, as explained in Section VI of the preamble, EPA appropriately established zero 

discharge requirements for PSES/PSNS – based on its determination that water management 

approaches to meet zero discharge requirements achieve the greatest pollutant reductions, are 

available, economically achievable, have no incremental and therefore no unacceptable nonwater-quality environmental impacts, do not present a barrier to entry for new sources, and help 

further the zero discharge goals of the CWA. See Response 1-C; Response 1-Z.

With respect to the commenter’s concern that the zero discharge requirement discourages 

innovation in wastewater treatment technology, See Response 4-H. In addition, the rule does not 

prevent industry from developing better technologies for recycle/reuse of UOG wastewater.

Third, as detailed in the TDD, few states have regulations or policies that prevent discharges of 

pollutants in UOG extraction wastewater to POTWs or that mandate pre-treatment prior to 

discharge to a POTW. In the absence of such regulations or policies, resource-constrained 

control authorities and/or POTWs who 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 

proposed rule with several states that have indicated that a federal pretreatment standard would 

reduce their administrative burden (DCN SGE00762; DCN SGE00743).

Fourth, 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 

local POTWs to accept their wastewater for discharge. In the absence of federal pretreatment 

standards, POTWs can legally accept UOG extraction wastewater to the extent that such 

wastewater transfers are in compliance with state and local requirements and that resulting 

discharges comply with their permits. Evaluating each potential customer (industrial user) and 

developing a determination for each new UOG extraction wastewater source on a case-by-case 

basis could be burdensome for POTWs. In addition, where a POTW determines it can accept this 

wastewater, complying with applicable reporting requirements could be a significant burden to 

some POTWs. EPA concluded that a national-level determination that UOG extraction 

wastewater contains pollutant concentrations that could pass through POTWs, and establishment

of categorical pretreatment standards will avoid burdening individual POTWs with evaluating 

each individual request. Thus, the national categorical pretreatment standards will reduce the 

process burden on pretreatment Control Authorities (e.g., POTWs). While EPA does not have 

the information to quantify the reductions in administrative burden that will likely result from the 

proposed rule, states generally support EPA’s position that such reductions will be realized 

(DCN SGE00762; DCN SGE00743).

Lastly, history demonstrates that absent controls preventing the transfer of or requiring 

pretreatment of such wastewater, POTWs can 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 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

161

regulations requiring pretreatment. Among the drivers behind these actions taken by 

Pennsylvania was that some waters were impaired by TDS (DCN SGE00187). Thus, 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 both

technologically available and economically achievable. 

With respect to the comment that EPA should allow POTWs that are equipped to remove UOG 

pollutants to accept UOG wastewater, EPA first notes that does not have a record to support that 

POTWs are capable of removing key UOG pollutants – nor has the commenter provided any 

such information. Second, EPA notes that to the extent that there are in fact POTWs that are 

equipped to remove UOG pollutants, removal credits may be authorized under EPA’s regulations 

to account for such removals. See Response 1-F; Response 4-G. 

Pretreatment for Conventional Oil and Gas Extraction Wastewater

Comments

EPA-HQ-OW-2014-0598-0952 (C LISH pg 2)

I urge the EPA and the OMB to adopt this rule prohibiting the discharge of unconventional oil 

and gas wastewater--such as from coalbed methane production--to Publicly Owned Treatment 

Works and to develop similar protections for wastewater produced by any and all oil and gas 

operations.

EPA-HQ-OW-2014-0598-0958 (CAPOZZELLI pg 1)

I also urge the EPA to include coal-bed methane production in this rulemaking and to develop 

similar pollution protections for all oil and gas wastewater discharges. 

EPA-HQ-OW-2014-0598-0769 (POHLY pg 1)

and to develop similar pollution protections for ALL oil and gas wastewater discharges. 

EPA-HQ-OW-2014-0598-0814 (MARIAN SZMYD pg 1)

Please expand proposed “zero discharge” standards for drilling wastewater to include 

“conventional” oil and gas activities, too. Because conventional oil and gas operations 

(traditional or shallow oil and gas extraction) use many of the same chemicals and generates 

similar wastes, the “zero discharge” standard should cover wastewater from these operations, 

also. 

EPA-HQ-OW-2014-0598-0817 (PIETRO POGGI pg 1)

and to develop similar pollution protections for ALL oil and gas wastewater discharges. 

EPA-HQ-OW-2014-0598-0818 (GRINDLEY pg 1)

to develop similar pollution protections for ALL oil and gas wastewater discharges.

EPA-HQ-OW-2014-0598-0820 (SHAW pg 1)

and to develop similar pollution protections for ALL oil and gas wastewater discharges.
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

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EPA-HQ-OW-2014-0598-0844 (SLATE pg 1)

Of course the EPA should include coalbed methane production in updated rules to develop 

similar pollution protections for ALL oil and gas wastewater discharges.

EPA-HQ-OW-2014-0598-0905 (STRAWN pg 1)

and to develop similar pollution protections for ALL oil and gas wastewater discharges.

EPA-HQ-OW-2014-0598-0923 (GROSS pg 1)

I urge EPA to develop similar pollution protections for all oil and gas wastewater discharges 

EPA-HQ-OW-2014-0598-0982 (HAIMOWITZ pg 1)

I urge EPA to include coalbed methane production in this rulemaking and to develop similar 

pollution protections for ALL oil and gas wastewater discharges. 

EPA-HQ-OW-2014-0598-1011 (SCHULMAN pg 1)

I urge EPA to develop similar pollution protections for all oil and gas wastewater discharges.

EPA-HQ-OW-2014-0598-1014 (KLEINERT pg 1)

I urge EPA to continue its effort to develop protections against all oil and gas wastewater 

discharges.

EPA-HQ-OW-2014-0598-1019 (ENV AMERICA pg 1)

and to develop similar protections for wastewater produced by any and all oil and gas operations. 

EPA-HQ-OW-2014-0598-1026 (CROSS pg 1)

I urge EPA to develop similar pollution protections for ALL oil and gas wastewater discharges. 

Response 4-N

All comments under Section 4.9 “Pretreatment for Conventional Oil and Gas Extraction 

Wastewater”, are addressed by the following response.

Many commenters indicated that EPA should also address discharges from conventional wells. 

EPA notes that discharge requirements for conventional oil and gas extraction wastewater are 

outside the scope of this rulemaking. See also Response 5-A.

Regarding comments pertaining to the regulation of coalbed methane extraction wastewaters, see 

Response 5-A and Response 6-D.

Subcategorization

Comments

EPA-HQ-OW-2014-0598-0951 (IPAA pg 4)

Regardless, the significant differences between 1976 and 2015 demonstrate that EPA should not 

rely on a discharge limitation standard or an analysis that pertains to the current Onshore 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

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Subcategory ELG. If EPA believes it is somehow constrained by those outdated determinations, 

it would be better served to create a new Subcategory. 

EPA-HQ-OW-2014-0598-0967 (NE pg 4)

Noble believes the EPA uses an incorrect baseline for developing the discharge standard when it 

suggests that EPA generally "designs nationally applicable pretreatment standards to ensure that 

wastewaters from direct and indirect industrial discharges are subject to similar levels of 

treatment."14

COMMENT: Because "the existing requirements for direct discharges of UOG extraction 

wastewater in the Onshore Subcategory require no discharge of pollutants," EPA concludes that 

a zero pollutant discharge standard should also apply to the indirect discharge of UOG extraction 

wastewater into POTWs. The concern with EPA's reasoning is three-fold:

First, we understand that EPA designed "the existing requirements for direct discharges" from 

onshore oil and gas extraction to regulate the discharges of wastewater from conventional 

extraction activities, not the discharges of wastewater from unconventional extraction activities. 

In 1979, when EPA designed the "existing requirements," there were few or no UOG extraction 

activities occurring. As such, EPA would have been unable to account for the unique challenges 

associated with managing wastewater from those activities, particularly at the much higher levels 

of activity that are occurring today. Moreover, we understand that the 1979 standard was based 

on the "availability and practicability of underground injection technologies" in 1979, which is 

not the same as the "availability and practicability" of such technologies today.15 Thus, the 

1979 standard for direct discharges from the oil and gas extraction industry as a whole should not 

be used as a baseline for the standard that should apply to indirect discharges from a unique 

subset of that industry in 2015. Instead, Noble requests that EPA develop a numerical or 

technology-based pretreatment standard that will allow discharge to a POTW, thereby addressing 

the increasing demand for wastewater management options.

14 Id. at 18560.

15 Id. at 18559.

Response 4-O

All comments under Section 4.10 “Subcategorization”, are addressed by the following response.

EPA determined it is not appropriate to subcategorize the UOG industry further for purposes of 

this rulemaking. See Response 3-H; Response 3-R. 

To the extent that these comments raise issues regarding the existing BPT-based direct discharge 

effluent limitations, such comments are outside the scope of this rulemaking; as explained in 

Section VI of the preamble to the final rule, consistent with the proposal, the scope of this final 

rule is specific to pretreatment standards for onshore unconventional (UOG) oil and gas 

extraction facilities (subpart C). See Response 1-LL; Section VI.A of the preamble.
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

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EPA disagrees with the commenter’s assertion that EPA applied an “incorrect baseline” in 

promulgating the pretreatment standards in this final rule. The commenters mischaracterize 

EPA’s analysis in suggesting that EPA established a zero discharge pretreatment standard in this 

final rule simply because direct dischargers are subject to zero discharge requirements under the 

existing ELG. EPA did not simply apply the existing ELG requirements for direct dischargers to 

the indirect dischargers covered by this rulemaking – but rather, conducted a pass-through 

analysis to determine whether pretreatment standards were appropriate, and then considered the 

requisite technology-based factors, including the availability of zero-discharge technologies and 

the economic achievability of these technologies for indirect dischargers, in establishing the zero 

discharge pretreatment standards in this final rule. See EPA’s Response 1-A; Response 1-CC. As 

explained in these responses and in Section VI of the final preamble, EPA determined (based on 

the data collected for this current rulemaking and not that collected in the 1970s for the 

previously promulgated requirements) that zero discharge is available and economically 

achievable and represents BAT/BADCT for the facilities subject to this final rule. See Response 

1-A.

See Section VI of the preamble for EPA’s explanation of why it did not finalize a non-zero 

numerical pretreatment standard as suggested by the commenter. Specifically, with respect to the 

commenter’s suggestion that a zero discharge requirement fails to account for changes in the 

availability of underground injection capacity to manage increasing amounts of UOG 

wastewater, see Response 1-C, Response 1-CC, Response 3-L, and Response 3-D.
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

165

5.0 REGULATORY LANGUAGE 

Definitions

Comments

EPA-HQ-OW-2014-0598-0953 (API pg 6)

3.) Abandon or alter its definition of unconventional oil and natural gas. EPA proposes to 

define ‘‘unconventional oil and gas (UOG)’’ as ‘‘crude oil and natural gas produced by a well 

drilled into a low porosity, low permeability formation (including, but not limited to, shale gas, 

shale oil, tight gas, tight oil).” API does not believe the distinction being drawn by EPA between 

“unconventional” oil and gas and all other oil and gas is a meaningful one for the purpose of 

setting ELGs. Moreover, by relying on a 0.001 mD standard to create this distinction,3 EPA 

would likely create a number of unintended consequences for industry, including overly broad 

categorization of “unconventional” wells and additional unnecessary seismic surveying 

obligations and uncertainty (for example, is the 0.001 mD standard measured at the target of 

extraction operations, is it an average across the hydrocarbon-bearing formation, and at what 

times must it be measured or re-measured?). Above all, it simply seems to miss the point that 

what EPA is attempting to regulate here is the process of hydraulic fracturing, not 

“unconventional” oil and gas operations as determined by an arbitrary millidarcy figure.

API does not support an arbitrary distinction among waters produced by conventional and 

unconventional formations – particularly when unsupported by a detailed analysis of the 

characteristics of produced waters that would justify such a distinction, and recommends EPA 

take a holistic approach to the evaluation of produced water treatment regardless of formation 

characteristics.

FN: 3 TDD at 20

EPA-HQ-OW-2014-0598-0976 (CBD pg 5)

EPA should also clarify that UOG waste includes wastewater from all forms of high-intensity oil 

and gas operations. While EPA mentions fracking, it is silent on other extraction methods such 

as acidizing, gravel packing, steam injection and other enhanced oil recovery. EPA proposes to 

define UOG as “crude oil and natural gas produced by a well drilled into a low porosity, low 

permeability formation (including, but not limited to, shale gas, shale oil, tight gas, tight oil).”22

22 Proposed Regulations at 18579.

EPA-HQ-OW-2014-0598-0937 (CUNY pg 6)

the pretreatment standards should not differentiate between conventional and unconventional oil 

and gas drilling operations. Rather the standards should require no discharge of a pollutant from 

oil and gas operations regardless of source. EPA emphasis should be on ensuring that oil and gas 

operators pretreat wastes to ensure water safety and not on what type of oil and gas operation is 

delivering the wastes. Simply said, all wastes delivered to POTWs from oil and gas operations 

should be subject pretreatment standards regardless of whether the source is conventional or 

unconventional wells. 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

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Third, with regard to effective date, all discharges from oil and gas operations should be covered. 

The lesson from Pennsylvania Chapter 95 is that if existing sources are excluded, the public may 

be left without adequate protection of the water supply. 

EPA-HQ-OW-2014-0598-0956 (CONSERVANCY SW FL pg 1)

The current language in the rule suggests unconventional extraction is identified based on the 

permeability of the formation targeted. However, it may be difficult to identify what constitutes a 

high, versus a low permeability formation; making the definition subjective (and possibly not 

applicable in Florida) even though unconventional oil extraction such as hydraulic fracturing has 

occurred in the state. We recommend incorporating language similar to that found in California 

where well stimulation is defined as, "a treatment of a well designed to enhance oil and gas 

production or recovery by Increasing the permeability of the formation" The state of California 

excludes operations that do not target the formation by injecting fluids below the acid threshold 

volume (fluids do not penetrate more than 36 inches into the formation). This effectively 

includes all stimulation operations which may generate toxic waste water while excluding 

routine well cleaning.'

'California 14 CA AOC 176 1 2 Craven. J. Fracking Secrets: The limits ofTrade Secret 

Protection in Hydraulic Fracturing. Van. J.Enl.and Tech. L.• 16:2:412 3Ibid. at414 4 

Stringfellow, W., Domen, J., Camarillo, M. Sandelin, W., and Borglin, S. 2014. Physical, 

chemical, and biological characteristics ofcompounds used in hydraulic fracturing. Journal of 

Hazardous Materials, 275: 37-54. 5 Gibson, W. (2014, July 5), Controversy spreads over 

Everglades oil drilling. Sun Sentinel. 

EPA-HQ-OW-2014-0598-0956 (CONSERVANCY SW FL pg 3)

The Conservancy requests the EPA to broaden the definition of UOG extraction to include all 

forms of well stimulation techniques 

EPA-HQ-OW-2014-0598-0976 (CBD pg 5)

EPA should also clarify that UOG waste includes wastewater from all forms of high-intensity oil 

and gas operations. While EPA mentions fracking, it is silent on other extraction methods such 

as acidizing, gravel packing, steam injection and other enhanced oil recovery. EPA proposes to 

define UOG as “crude oil and natural gas produced by a well drilled into a low porosity, low 

permeability formation (including, but not limited to, shale gas, shale oil, tight gas, tight oil).”22

22 Proposed Regulations at 18579.

EPA-HQ-OW-2014-0598-0938 (KS DHE pg 1)

The key distinction between conventional and unconventional oil and gas appears to be the last 

sentence in the above quote i.e., "The tight oil/gas reservoir rocks have permeability and porosity 

lower than reservoirs of conventional oil and gas resources but with permeability generally 

greater than shale.” While descriptive, it provides little in the way of regulatory criteria. This is 

important in that in both 435.33 (PSES) and 435.34 (PSNS) requirements for wastewater 

from conventional oil and gas extraction are [Reserved]. Industry as well as pretreatment 

authorities (publically owned treatment works (POTWs), delegated States, and EPA) need to be 

able to clearly differentiate what are conventional vs. unconventional oil and gas extraction 

wastewaters as the introduction of unconventional wastewaters would be prohibited while 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

167

conventional wastewater would not be prohibited by the proposed rule. Clear and distinct 

definitions for both "conventional oil and gas" and unconventional oil and gas" need to be 

provided in both 435.33 and 435.34 to enable EPA, States, and POTWs to determine whether 

wastewater from oil and gas extraction would be prohibited from being introduced into a POTW 

wastewater treatment system.

EPA-HQ-OW-2014-0598-0977 (EIP pg 11)

While noting that the existing ELG does not distinguish between conventional and 

unconventional oil and gas wastewater point source categories, EPA nevertheless has proposed 

to define technology-based guidelines related to unconventional oil and gas wastewater as an 

apparent subcategorization of the oil and gas extraction point source category. This is a 

reasonable initial step. At the same time, in reviewing the evidence of UOG and conventional oil 

and gas (COG) wastewater characteristics provided in response to the request for additional data, 

EPA should determine whether creation of an unconventional subclass should remain in effect 

based on whether a substantial variation between the proposed subcategories of conventional and 

unconventional oil and gas wastewater dischargers exists. In the Federal Register Notice EPA 

reserved the right to pursue a future rulemaking for conventional oil and gas facilities. We urge 

EPA to expedite this process upon the conclusion of the current ELG rulemaking and to consider 

whether a distinction is necessary in the future.

EPA-HQ-OW-2014-0598-0957 (EDF pg 1)

EPA in this proposed rule defines “unconventional oil and gas” as “crude oil and natural gas 

produced by a well drilled into a low porosity, low permeability formation (including, but not 

limited to, shale gas, shale oil, tight gas, tight oil).”1 EDF does not expect this definition of UOG 

resources to pose significant difficulties. Industry participants and regulators generally 

understand whether a particular producing horizon should be considered “tight” or whether it 

should be considered “shale.” And these experts generally can agree on whether the porosity or 

permeability of a given formation is “low.” At the same time, once this rule is finalized EPA 

may find it useful to develop Guidance to help operators and pretreatment authorities apply the 

definition in close cases with consistency.

EPA’s proposed distinction between unconventional oil and gas wastewater and conventional oil 

and gas wastewater has the virtue of concentrating on the subset of oil and gas operations 

experiencing the fastest growth, but it is less than optimal for pretreatment authorities and public 

health and the environment. If these two forms of production are permanently segregated, EPA 

will fill only a portion of the existing regulatory gap with this rule. For a description of this 

remaining regulatory gap regarding conventional extraction wastewater, see EDF Responses to 

question 6, below. Therefore, EPA should work expeditiously to finalize this unconventional 

rulemaking and immediately proceed to develop an accompanying conventional rule.

1 Environmental Protection Agency, Effluent Limitations Guidelines and Standards for the Oil 

and Gas Extraction Point Source Category, 80 Fed. Reg. 18,579 (Proposed April 7, 2015) (to be 

codified at 40 CFR 435.33(b)(2)(i)).

EPA-HQ-OW-2014-0598-0977 (EIP pg 12)

As discussed in Section V, there are various ways that extraction operators and pretreatment 

authorities can determine the difference between unconventional and conventional wastewater 

based on the currently proposed definitions and future guidance could assist in enforcement.
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

168

It is possible that information provided during this and future rulemaking will prompt 

reconsideration of this subcategorization. Congress intended that ELGs provide uniform effluent 

limitations to individual point sources so that “similar characteristics, regardless of their location 

or the nature of the water into which the discharge is made, will meet similar effluent 

limitations.”51 Courts have warned, however that the emphasis on uniformity in the legislative 

history must be tempered with flexibility when EPA creates classes and subclasses of 

dischargers.52 In addressing the Plaintiff’s objection to subcategorization within the coastal oiland gas-producing category, the TOGA court emphasized that EPA is required to address 

“substantial variations” in a category of point sources when promulgating ELGs.53 In the 

absence of such information on substantial variations during the rulemaking, however, the Fifth 

Circuit invoked the Supreme Court’s approach in Chemical Mfrs. Ass’n to allow for unknown 

differences to come up through a Fundamentally Different Factors variance.54

If EPA is not able to identify a substantial variation between UOG and COG wastewater 

characteristics in a future rulemaking, subcategorization will not be necessary because EPA 

should default to the Congressional preference of uniformity of effluent limits in a category. If 

dischargers within that category currently have evidence that they should be treated differently, 

EPA should obtain that data, provide it to the public and rely upon it to demonstrate a reasoned 

justification for the subcategory of, for example, conventional oil and gas wastewater in a future 

rulemaking. Similarly, if dischargers within the oil and gas extraction category develop data that 

sets them apart from other dischargers in the category, their situation can be addressed through 

statutory variances.55 Accordingly, the statutory scheme envisions the scenario that EPA is 

faced with now in issuing an ELG for the oil and gas extraction point source category. Unless 

EPA identifies “substantial variations” within the oil and gas extraction category, the currently 

proposed subcategorization will not be needed on a permanent basis.

51 Environmental Policy Division of the Library of Congress, A Legislative History of the Water 

Pollution Control Act Amendments of 1972, 93d Cong., 1st Sess. (Comm. Print 1973), at 172 

(statement by Senator Muskie).

52 Texas Oil & Gas Ass’n v. EPA, 161 F.3d 923, 939 (5th Cir.1998) (citing Chemical Mfrs. 

Ass’n v. Natural Resources Defense Council, 470 U.S. 116 (1984)).

53 Id.

54 33 U.S.C. § 1311(n); see also 33 U.S.C. § 1311(c) (describing EPA’s authority to give 

individual dischargers an economic variance). 

55 TOGA at 939-940.

EPA-HQ-OW-2014-0598-0977 (EIP pg 13)

Given the way in which EPA has defined UOG, POTWs will have to distinguish UOG and COG 

wastewater in order to enforce the zero-discharge requirement for UOG wastewater while also 

considering acceptance of COG wastewater subject to compliance with the general standards and 

their National Pollutant Discharge Elimination System (NPDES) permits.

The objectives of the National Pretreatment Program are to prevent the introduction of pollutants 

into POTWs that will cause interference or pass-through.57 The Pretreatment Program 

requirements provide the necessary legal authority to implement and enforce a zero-discharge 

standard. The requirements include standards for analysis, inspection, and surveillance, 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

169

monitoring, and reporting.58 Such authority includes the ability to require identification of the 

character and volume of pollutants.59 More generally, the Program places a great deal of 

emphasis on reporting to demonstrate continued compliance.60 These requirements and 

emphasis will assist in distinguishing UOG and COG wastewater according to the proposed 

definition.

Sample analyses alone may not reveal whether the wastewater discharged to the POTW is UOG 

or COG wastewater.61

Because EPA has distinguished COG and UOG wastewater based on the characteristics of the 

formation from which extraction took place, Control Authorities should be able to require that 

industrial dischargers provide documentation confirming that the target formation where the 

wastewater originated is a COG formation and not a UOG formation as defined. This could be 

accomplished through local limits or more general application requirements.

One method of documentation could be to require dischargers provide the well or drilling 

permits and related applications that are associated with the wastewater. For example, in 

Pennsylvania, the Department of Environmental Protection issues well permits pursuant to the 

Oil & Gas Act.62 Applications for well permits must identify the target formation proposed for 

production.63 Issued well permits confirm this formation information by including a field called 

“Anticipated Maximum TVD” or vertical well depth. There is a similar practice in North 

Carolina, Ohio, and Texas.64

However, information in well permits or well permit applications, for example the name and 

depth of target formations, may not always be sufficient for making the determination that 

wastewater is not UOG wastewater as defined. UOG is proposed to be defined based on the 

porosity and permeability of a formation. Formation names and depths do not expressly convey 

information about porosity and permeability, and will not always serve as an easy reference 

proxy. While a POTW may be able to recognize popular names of formations that would meet 

the proposed definition (which wastewater it should reject), such as Marcellus, Utica, Bakken, or 

Barnett, the names of COG formations may not be as easily recognizable. Even if the oil and gas 

extraction operator is in a good position to know whether the wastewater originated from an 

eligible formation – one that does not meet the proposed definition of the UOG formation – it is 

crucial for the POTW to also have the necessary information to enforce the rule that prevents 

UOG wastewater discharges by itself being able to know whether the wastewater is from an 

eligible formation.

One workable solution could be for the Control Authority, working with state agencies and EPA, 

to compile a list of names and depths for UOG and COG formations within the Control 

Authority’s jurisdiction. Such a list, combined with a requirement for the proposed discharger to 

provide the POTW with permitting and other materials that can substantiate wastewater origin, 

would facilitate enforcement. This process can be outlined in a future guidance document or 

future rulemaking. While methods of distinguishing UOG and COG are available to support 

finalization of the Proposed Rule, such guidance could be a positive next step.

57 40 C.F.R. § 403.2(a)-(b).
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

170

58 40 C.F.R. § 403.8(f).

59 40 C.F.R. § 403.8(f)(2)(ii).

60 40 C.F.R. § 403.12.

61 See, e.g., Harkness et al, supra note 49; see also the documents enclosed as Exhibit A that 

include data for COG influent that reveal similar chemistries for COG and UOG wastewater.

62 58 Pa.C.S. Ch. 32.

63 See Permit Application To Drill And Operate An Unconventional Well, Doc. No. 8000-PMOOGM0001b (rev. June 2014), available at 

http://www.elibrary.dep.state.pa.us/dsweb/Get/Document-100999/8000- PMOOGM0001b%20Permit%20-%20Unconventional%20WellRF2.pdf.

64 See Exhibit B

EPA-HQ-OW-2014-0598-0956 (CONSERVANCY SW FL pg 1)

The Conservancy recognizes the proposed rule will address only waste generated by 

unconventional oil and gas operations. The Environmental Protection Agency (EPA) defines 

unconventional oil and gas as "crude oil and natural gas produced by a well drilled into a low 

porosity, low permeability formation (including but not limited to, shale gas, shale oil, tight gas, 

tight oil)." This definition excludes waste generated from conventional oil extraction and coalbed 

methane. 

In the state of Florida, several types of unconventional oil and gas extraction occur. These 

include operations where fluids are injected into the well to dissolve rock and injected to fracture 

rock. These operations both involve the injection of potentially hazardous chemicals and may 

generate wastewater that may not be treatable in a POTW. The Conservancy recommends EPA 

consider including language in the rule to specify that all well stimulation treatments are 

considered unconventional and no well stimulation waste should be transferred to a POTW. 

EPA-HQ-OW-2014-0598-0976 (CBD pg 5)

As currently drafted, the Proposed Regulations would apply only to unconventional oil and gas 

(UOG) wells, while wastewater from conventional wells would not be affected. This would 

unnecessarily limit the efficacy of the Proposed Regulations. As discussed above, wastewater 

can contain an array of harmful chemicals regardless of whether a well has undergone fracking.

Enforcement would also be difficult in parts of the country where conventional and 

unconventional wells exist in close proximity. A regulator may be unable to discern whether 

wastewater originated from a convention well or from a UOG well.

EPA-HQ-OW-2014-0598-0976 (CBD pg 8)

In addition, disposal of wastewater from conventional oil and gas development carries many of 

the same risks to public health and the environment as does UOG wastewater disposal.

EPA-HQ-OW-2014-0598-0970 (PRINGLE pg 3)

Expedite rulemakings to update the ELGs for conventional oil and gas facilities sending 

wastewater to POTWs. Research has shown there is minimal difference between the constituents 

in unconventional and conventional wastewater. High TDS contents, heavy metals and naturally 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

171

occurring radioactive materials are present in most wastewater generated during conventional oil 

and gas development and pose the same challenges to POTWs. 

EPA-HQ-OW-2014-0598-0939 (KALLIO pg 2)

Rules Should Additionally Apply to Conventional Oil and Gas Waste Fluids 

These rules should apply to the discharges of waste fluid from both conventional and 

unconventional oil and gas operations into waterways that feed water supply systems for 

communities. A recent Duke University study, “Iodide, Bromide, and Ammonium in Hydraulic 

Fracturing and Oil and Gas Wastewaters: Environmental Implications,” analyzed water from 

drilling wells in the Marcellus shale gas region for iodide, bromide and ammonium. Findings 

showed there were no differences in halides and ammonium concentrations between oil and gas 

wells originating from hydraulic fracturing and conventional oil and gas operations. Ammonium 

was discharged to rivers at well above the Environmental Protection Agency’s aquatic life 

criteria, which can also be harmful to human health. Additionally, iodide was found in the 

wastewater, which when mixed with disinfectants used by treatment facilities, can react to form 

more toxic substances and pose enormous health risks for people. Water soluble long-lived 

radium is found in conventional oil and gas drilling and therefore should not be exempted from 

these rules. As such, what is discharged into waterways flowing toward a community’s drinking 

water treatment facility is a concern. If concern for human health and our environment are the 

basis for these proposed rules, common sense dictates that these rules should apply to both 

conventional and unconventional waste fluid discharges into such waterways in addition to 

wastewater sent directly to treatment facilities. 

EPA-HQ-OW-2014-0598-0976 (CBD pg 5)

As currently drafted, the Proposed Regulations would apply only to unconventional oil and gas 

(UOG) wells, while wastewater from conventional wells would not be affected. This would 

unnecessarily limit the efficacy of the Proposed Regulations. As discussed above, wastewater 

can contain an array of harmful chemicals regardless of whether a well has undergone fracking.

Enforcement would also be difficult in parts of the country where conventional and 

unconventional wells exist in close proximity. A regulator may be unable to discern whether 

wastewater originated from a convention well or from a UOG well.

EPA-HQ-OW-2014-0598-0976 (CBD pg 8)

In addition, disposal of wastewater from conventional oil and gas development carries many of 

the same risks to public health and the environment as does UOG wastewater disposal.

Response 5-A

All of the above comments under Section 5.1 “Definitions”, are addressed by the following 

response.

The universe of facilities subject to the pretreatment standards in this final rule are onshore 

unconventional oil and gas (UOG) extraction facilities. For purposes of the final rule, the EPA 

defines “unconventional oil and gas” 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, tight 

oil).” As detailed in Chapter B, Section 1.2.1 of the TDD and summarized below, EPA’s final 

definition of UOG is supported by and consistent with the use of the term “unconventional” in 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

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publicly-available sources and by industry. See Massachusetts Institute for Technology’s study 

of Future of Natural Gas (DCN SGE00547) (“...unconventional resources are found in 

accumulations .... Such accumulations include “tight” sandstone formations, coal beds (coal bed 

methane or CBM) and shale formations.”)); API/ANGA’s Characterizing Pivotal Sources of 

Methane Emissions from Natural Gas Production, Summary and Analysis of API and ANGA 

Survey Responses from September 21, 2012 (DCN SGE00291) (“For the purposes of this report, 

unconventional wells are considered to be shale gas wells, coal bed wells, and tight sand wells 

which must be fractured to produce economically”; Table 8 of this report breaks unconventional 

wells into three formation types – shale, tight, and coalbed methane); The 2014 Federal MultiAgency Collaboration on Unconventional Oil and Gas Research (DCN SGE1330)

(“Unconventional oil and gas (UOG) refers to resources such as shale gas, shale oil, tight gas, 

and tight oil that cannot be produced economically through standard drilling practices”); and 

USGS’s Trends in Hydraulic Fracturing ... in the United States from 1947 through 2010 – Data 

Analysis and Comparison to the Literature (DCN SGE01095), (“...development of 

unconventional, continuous accumulations of oil, gas, and natural gas liquids, including tight oil 

and gas, coalbed methane, and shale gas...”) More examples can be found in the TDD, Chapter 

B, Section 1.2.1 Description of UOG Resources in Publicly-Available Sources. 

As a point of clarification, although coalbed methane is considered to be unconventional in many 

of the publicly-available sources referenced above, the pretreatment standards in this final rule 

do not apply to pollutants in wastewater discharges to POTWs associated with coalbed methane 

extraction for the reasons described in Section VI of the preamble and Response 6-D.

EPA also recognizes that some publicly-available sources may include other types of oil and gas 

resources, other than CBM, under the overarching term “unconventional.” EPA chose to 

explicitly list shale gas, shale oil, tight gas, and tight oil resources in its final pretreatment 

standards, because these types of resources currently represent the vast majority of 

unconventional oil and gas activity in the United States (see TDD Figures B-1 and B-2; DCN 

SGE01192; discussion in TDD Chapter B about UOG definition). However, EPA notes that the 

list is merely illustrative, and not necessarily comprehensive, and that therefore other types of 

unconventional oil and gas resources that come from a shale and/or tight formation are included 

in the scope of this rule.

In its proposal, EPA defined unconventional oil and gas (UOG) as “crude oil and natural gas 

produced by a well drilled into a low porosity, low permeability formation (including, but not 

limited to, shale gas, shale oil, tight gas, tight oil).” Two commenters questioned the inclusion of 

“low porosity” and “low permeability” as part of the definition. In response, EPA deleted the 

reference to low porosity and permeability in the definition of unconventional oil and gas in the 

final rule. EPA made this change because the term “low” may be open to different interpretations 

of the level of porosity and permeability necessary for inclusion within the scope of the rule. One 

industry group, in its comments, equated this term with a specific numeric millidarcy value 

(0.001), which was not EPA’s intent. The commenter also expressed a concern that including 

low porosity and permeability in the definition could lead to a requirement for seismic testing to 

determine porosity and permeability, which was also not EPA’s intent. Therefore, the definition 

of unconventional oil and gas in the final rule does not include the terms low porosity or low 

permeability. By eliminating the low permeability, low porosity language, and defining UOG for 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

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purposes of this rule as shale and/or tight formations only, EPA has reasonably clarified the 

applicability of this rule. 

In response to the comments, EPA also considered other approaches for defining unconventional 

oil and gas. Several commenters suggested that EPA incorporate definitions based on various 

state regulations addressing unconventional oil and gas. In particular, EPA reviewed definitions 

in states that have specific requirements related to unconventional oil and gas. Generally, state 

definitions that EPA reviewed rely on several factors including geologic formation description 

(e.g., geological shale formation existing below the base of the Elk Sandstone or its geologic 

equivalent stratigraphic interval), type of well stimulation technique employed (e.g., hydraulic 

fracturing), and formation type (e.g., shale, tight). See Table B-1 of EPA's TDD Chapter B, 

Section 1.2.1 for state definitions. As explained above, the final definition is based on formation

type. EPA declined to adopt definitional approaches based on a list of specific formations or the 

well stimulation technique employed, for the reasons explained below.

EPA considered defining unconventional oil and gas based on an exclusive list of UOG 

formations, such as one based on a national map of unconventional formations (e.g., EIA's maps

discussed below). However, when EPA spoke with EIA, EPA learned that EIA does not have a 

regularly scheduled update for their maps (DCN SGE01348). EPA did not define unconventional 

oil and gas based on an exclusive list of UOG formations in this final rule because of its concern 

that new UOG resources could be identified in the future, and that a static source could thus 

become inaccurate for regulatory purposes.

EPA also did not define UOG based on the well stimulation technique employed, which is most 

often hydraulic fracturing for UOG wells (see TDD Chapter B). This is because industry may 

also employ hydraulic fracturing for non UOG wells. For example, data in the record 

demonstrate that operators may use hydraulic fracturing to stimulate conventional oil and gas 

wells (See DCN SGE00291). Operators may also use hydraulic fracturing to stimulate coalbed 

methane wells. EPA is not including wastewater from coalbed methane wells within the scope of 

this rule, for the reasons described in Section VI of the preamble and Response 6-D (DCN 

SGE00527; DCN SGE00291). Furthermore, EPA does not intend this rule to apply to UOG 

wastewater only where hydraulic fracturing is employed. For example, two commenters 

suggested other types of extraction processes and stimulation techniques that may be applied to 

UOG resources (e.g., acidization, gravel packing, steam-injection and other enhanced oil 

recovery). EPA notes that, for the reasons discussed above, its definition is not based on the well 

stimulation techniques used, but rather based on the formation type the well is drilled into. The 

rule applies to any wastewater generated at a well drilled into an unconventional formation as 

defined in this rule. If drilling, completion, stimulation or other techniques described by 

commenter are utilized at these wells, then those wastewaters are subject to this final rule. 

Several commenters raised concerns about the ability of regulators to implement and enforce the 

rule based on the proposed definition of unconventional oil and gas. One commenter suggested 

that a regulator may not be able to determine whether wastewater came from a conventional or 

unconventional well (but provided no examples of where this may be the case), and another 

commented that the definitions for both UOG and COG need to be clear and distinct to allow 

EPA, states and POTWs to determine whether wastewater was coming from a prohibited source. 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

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EPA agrees on the need for a clear and distinct definition – and notes that the revised definition 

in the final rule provides such clarity. EPA further notes that in the event an operator wants to 

send conventional oil and gas wastewater to a POTW, EPA expects that the POTW would 

require the operator to provide the documentation that its wastewater does not fall within the 

definition of UOG in this final rule. See 40 CFR Part 403.12(h) (providing that the Control 

Authority must require “appropriate” reporting requirements for Industrial Users not subject to 

categorical pretreatment standards). If the operator cannot provide such documentation, the 

POTW should not accept it. With respect to any unconventional oil and gas wastewater sent to 

POTWs, POTWs would be able to determine whether it was coming from a prohibited source –

as the regulations specifically require that industrial users subject to pretreatment standards 

report what they are currently discharging or scheduled to discharge to the Control Authority 

(See 40 CFR Part 403.12(b)(5); 40 CFR Part 402.12(e). EPA further notes that the National 

Association of Clean Water Agencies (NACWA), whose membership includes POTWs 

nationwide, did not raise any concerns in their comments regarding implementation and 

enforcement based on the definition of UOG, and specifically supported the scope of the rule. 

EPA also does not agree with comments suggesting that operators may not be able to determine 

if wastewater came from an unconventional well. Shale and tight formation in the United States 

are well-defined in publicly-available resources such as those contained in the record for this 

rule. For example, U.S. Energy Information Administration (EIA) publishes summary maps of 

natural gas in the Lower 48 States and North America, and the maps are separated into the 

following: Conventional Fields, Shale Gas and Oil Plays (DCN SGE01191), Major Tight Gas 

Plays [which includes tight gas and oil] (DCN SGE00155), Coalbed Methane Fields, and 

Offshore Fields (DCN SGE01255). “EPA was readily able to identify particular wells as 

tight/shale for purposes of this rule by using EIA’s list of known UOG plays in Table 9.3 of the 

Assumptions to the 2015 Annual Energy Outlook (DCN SGE01190). These formation names 

can be found in the TDD, Table F-3 and Table F-4. 

In addition, as described in Chapter B, Section 1.2.2 of the TDD, information in the record 

(calls/site visits EPA had with operators during this rulemaking, presentations made at 

conferences, and publicly available surveys conducted by industry) indicates that facilities 

engaged in oil and gas production are aware of the names of formation from which they are 

producing gas or oil, and whether it is from a shale and/or tight formation. Operators must 

complete and submit a well completion report to their governing state oil and gas agency after 

they complete each new oil and gas well or recomplete an existing oil and gas well. Information 

available to EPA indicates that all states require operators to submit information regarding the 

geologic formation name (e.g., Bakken, Marcellus) in which the well is completed, evidencing 

that operators must know what formation they are producing from. These well completion 

reports are ultimately reported in Drilling Information (DI) Desktop (DI's nationwide database of 

all oil and gas wells) (DCN SGE01170). One way an operator could demonstrate (and a regulator 

could confirm) that a basin/formation is shale and/or tight, is to consult the basin/formation 

information reported in a well completion report, in combination with the list of shale and/or 

tight formations reported in Table 9.3 of EIA’s Assumptions to the 2015 Annual Energy Outlook

report (DCN SGE01190) or Appendix F of the TDD. They could also consult the 

basin/formation information reported in DI Desktop® instead of individual well completion 

reports, along with the list of shale and/or tight formations reported in Appendix F of the TDD to 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

175

determine whether the formation is shale and/or tight, which is the method EPA used and 

described in EPA’s DI Desktop® memo (DCN SGE01180) (showing EPA’s process for 

translating basin/formation information into shale/tight in order to summarize DI Desktop® well 

data as shale/tight well data for the TDD). 

These well completion reports are further discussed in TDD Section B.2.3 and in a separate 

memorandum to the record, titled Well Completion Reports Memorandum (175 DCN 

SGE01263). Moreover, EPA did not receive any comments claiming that operators could not 

determine if they were drilling into a shale and/or tight formation. EPA did in fact receive a 

supporting comment with respect to the shale and/or tight aspect of its definition, indicating that, 

“Industry participants and regulators generally understand whether a particular producing 

horizon should be considered ‘tight’ or whether it should be considered ‘shale’” (see comment 

from EPA-HQ-OW-2014-0598-0957 (EDF pg 1)). 

While information in the record indicates that it is generally clear whether a particular formation 

is shale and/or tight, EPA recognizes that within basins, particularly where conventional 

formations and unconventional formations may be in close proximity or layered on top of one 

another, concerns about applicability may arise. In that event, or in other cases where one may 

need to differentiate between conventional and unconventional resources, there are a number of 

data sources that could be used by operators, POTWs, control authorities, and approval 

authorities in determining the applicability of the rule to wastewater from the formation at issue. 

These include: consulting maps published by EIA; consulting well completion reports required 

by the state; referring to DI Desktop for well history, formation/basin name, depth of a drilled 

well, and wastewater decline curve of producing wells; and considering other factors and 

resources as appropriate to determine if the formations should be treated as a shale and/or tight

formation subject to this rule. 

Response to Comments Regarding the Need for a COG rule and the Similarities between COG 

and UOG Wastewater Characteristics

Many commenters indicated concern that wastewater characteristics are similar between 

conventional and unconventional resources, that disposal of conventional well wastewaters has 

many of the same risks to public health and the environment as do wastewaters from 

unconventional wells, and that EPA should also address discharges from conventional wells in 

this rulemaking. In addition, one commenter stated that the distinction between wastewaters from 

conventional and unconventional formations was arbitrary, particularly when unsupported by a 

detailed analysis of the characteristics of produced waters that would justify such a distinction.

EPA disagrees with the commenter’s assertion that EPA’s distinction between wastewaters from 

conventional and unconventional oil and gas formations is arbitrary, or that this distinction is 

unsupported by sufficient analysis. EPA’s distinction between conventional and unconventional 

oil and gas wastewater is based not on the characteristics of the wastewater or the risks posed by 

each, but rather, based on EPA’s reasonable ordering of rulemaking priorities. Moreover, EPA 

did not solicit comment on including conventional formations in this rule and thus this issue is 

outside the scope of this rulemaking. Agencies are not required to address wastewater discharges 

from an entire industrial category at once; rather the D.C. Circuit has held that “agencies have 

great discretion to treat a problem partially.” City of Las Vegas v. Lujan, 891F.2d 927 (D.C. Cir. 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

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1989). Accordingly, here, EPA exercised its discretion to focus its rulemaking priorities on 

unconventional oil and gas wastewater at this time – and provided a thorough analysis of the 

wastewater generated by this subcategory that is subject to today’s rule. Contrary to the 

commenter’s suggestion, EPA is not required to provide a detailed analysis of wastewater that is 

outside the scope of the rulemaking. See Response 4-N. 

With respect to the comment that EPA should not subcategorize wastewater from conventional 

wells differently than unconventional wells should EPA decide to develop pretreatment 

standards for conventional wells in the future unless EPA identifies “substantial variation,” EPA 

notes that pretreatment standards for conventional oil and gas resources are outside the scope of 

this rulemaking. EPA considers future rulemakings in the effluent guidelines planning process 

and will consider whether to initiate a rulemaking for conventional oil and gas wells in that 

process. EPA’s decision to prioritize indirect discharges from unconventional wells at this time is 

a reasonable first step, even if another step may be considered in the future. See City of Las 

Vegas v. Lujan, 891 F.2d 927 (D.C. Cir. 1989) (“we [sh]ould not strike down [a regulation] if it 

[is] a first step toward a complete solution”).

Comments

EPA-HQ-OW-2014-0598-0951 (IPAA pg 11)

Conventional Oil and Gas Extraction Waste Waters 

EPA stipulates in the proposed ELG that it is not addressing the discharge of conventional oil 

and gas extraction waste waters. We support this position. 

Response 5-B

As explained in Section VI of the preamble to the final rule, consistent with the proposal, the 

scope of this final rule is specific to pretreatment standards for onshore unconventional (UOG) 

oil and gas extraction facilities (subpart C). The final rule establishes requirements for 

wastewater discharges from UOG extraction facilities to POTWs.

Comments

EPA-HQ-OW-2014-0598-0953 (API pg 4)

unclear definitions which would create unnecessary distinctions in oil and natural gas regulatory 

terminology for produced water, thereby potentially impacting other regulatory mechanisms 

essential to effective management of produced waters.

EPA-HQ-OW-2014-0598-0953 (API pg 4)

4.) Abandon the distinction between “flowback” and “produced water.” EPA proposed to define 

flowback as: “A portion of produced water can return to the wellhead at this time; this waste 

stream is often referred to as ‘‘flowback’’ and consists of the portion of fracturing fluid injected 

into the wellbore that returns to the surface during initial well depressurization often combined 

with formation water.”4 This definition is insufficient for regulatory purposes. API
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

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does not support a regulatory distinction between “flowback” and “produced water.” As an 

operational matter, it is difficult if not impossible to differentiate between “flowback” and 

“produced water.” From an environmental perspective, there is no difference in protecting lands 

and waters from discharges of “flowback” as compared to “produced water.” Nor has EPA 

attempted to justify such a distinction on the record.

Should EPA decides to make such a regulatory distinction in a final rule, API proposes the 

following definitions: “Flowback” means the act of fluids returning to the surface from the 

formation after hydraulic fracturing operations; and “Produced Fluids” means fluids that exit the 

wellbore following a hydraulic fracturing operation that may contain a combination of water and 

reservoir fluid.

FN: 4 See Proposed Rule, Federal Register Vol. 80, No. 66 , April 7, 2015 at 18568, available at 

http://www.gpo.gov/fdsys/pkg/FR-2015-04-07/pdf/2015-07819.pdf

Response 5-C

EPA notes that some references in its record distinguish between flowback and produced water, 

and therefore the TDD presents data that may use the term flowback, or long-term produced 

water (see TDD Chapter D). Where these references made distinctions, EPA maintained those 

distinctions in discussion of the data in the TDD. However, there is no regulatory distinction 

made between flowback and produced water in the final rule. The final rule definition of 

produced water is as follows: produced water means the fluid (brine) brought up from the 

hydrocarbon-bearing strata during the extraction of oil and gas, and includes, where present, 

formation water, injection water, and any chemicals added downhole or during the oil/water 

separation process. EPA considers flowback and long-term produced water to fit within the 

regulatory definition of produced water (see TDD Chapter B) and notes there is no definition of 

flowback given in the final rule. Because EPA is not making a regulatory distinction between 

flowback and produced waters in the rule, EPA does not see how this will impact other 

regulatory mechanisms related to management of produced water as suggested by commenter.

EPA also notes commenter’s suggested definition of “produced fluid” as the fluid that exits the 

wellbore. In light of this, and in order to be clear that EPA intends the definition of produced 

water to include not just water but all fluids flowing from the well, EPA has made a minor edit to 

the produced water definition from the proposal. Specifically, EPA has replaced the word 

“water” with “fluid” in the final rule, emphasized with bold and underlining in the following 

definition from the final rule: “produced water means the fluid (brine) brought up from the 

hydrocarbon-bearing strata during the extraction of oil and gas, and includes, where present, 

formation water, injection water, and any chemicals added downhole or during the oil/water 

separation process.”

Comments

EPA-HQ-OW-2014-0598-0956 (CONSERVANCY SW FL pg 2)

In addition, the EPA states POTW's are still able to except wastewater that is "good enough 

quality for agriculture and wildlife propagation." Due to the fact there are unknown constituents 

in UOG's wastewater, how can "good enough" be determined? Without the knowledge of 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

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constituents used, or state and national water quality standards for all pollutants in UOG's, all 

unconventional oil and gas wastewater from UOG extraction should be banned from POTW's, 

without exceptions. 

Response 5-D

EPA notes that the current rule does not alter the ability to directly discharge produced water 

under 40 CFR 435 Subpart E for use in agriculture or wildlife propagation. The commenter 

suggests that POTWs could except [sic] UOG wastewater consistent with subpart E of 40 CFR 

part 435 (note that the commenter states that POTWs could “except” UOG wastewater, but EPA 

believes the commenter meant “accept”). The commenter is mistaken that EPA stated in the 

proposed rule that POTWs could accept UOG produced water consistent with subpart E of 40 

CFR part 435. The agricultural and wildlife use subcategory does not contain pretreatment 

standards and only applies to direct dischargers. Therefore, POTWs could not accept produced 

water from UOG producers and subsequently discharge that water under subpart E. Furthermore, 

EPA acknowledges the commenter’s concerns regarding pollutants in UOG wastewater, and 

notes that the final rule requires zero discharge of all pollutants in UOG wastewater to POTWs.

See Response 6-H.

Applicability and Scope

Comments

EPA-HQ-OW-2014-0598-0953 (API pg 6)

Should EPA choose to proceed with the proposed rule, in the interests of promoting regulatory 

certainty, we also respectfully request that the Agency clarify the following aspects of the 

proposed rule:

1.) Confirm that the proposed rule, if finalized, would in no way limit a UOG extraction 

facility’s ability to send produced water to a CWT that either directly discharges its effluent or 

sends it to a POTW.

2.) Confirm that the proposed rule, if finalized, would in no way impact or constrain the Subpart 

E allowance for agricultural and wildlife propagation.

FN: 2 TDD at 97, 101-102.

EPA-HQ-OW-2014-0598-0997 (EUREKA pg 2)

The language of the Proposed Rule states "[t]here shall be no discharge of wastewater pollutants 

associated with production, field exploration, drilling, well completion, or well treatment for 

unconventional oil and gas extraction (e.g., drilling muds, drill cuttings, produced sand, produced 

water) into publicly owned treatment works." This language in the Proposed Rule is vague and 

ambiguous especially with regard to its applicability. The plain language of this Proposed Rule 

appears to prohibit not only shale operators from sending UOG Extraction Wastewater directly 

to publicly owned treatment works ("POTWs"), but also to prohibit the discharge of treated 

UOG Extraction Wastewater from a permitted centralized waste treatment ("CWT") facility if 

trace amounts of the "contaminants" associated with UOG Extraction Wastewater remain.1 

Accordingly, both shale operators and/or the public may interpret the Proposed Rule as 

prohibiting shale operators from sending UOG Extraction Wastewater to a permitted CWT 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

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facility that discharges treated UOG Extraction Wastewater to POTWs even though the CWT is 

in full compliance with the Effluent Limitation Guideline ("ELG") that has already been 

established for CWTs.

This interpretation of the Proposed Rule, however, is incorrect from both a legal standpoint and 

USEPA's own interpretation of the intention of the rule. From a legal standpoint (as USEPA has 

recognized), discharges from CWT facilities are already subject to an Effluent Limitation 

Guideline ("ELG") at 40 CFR Part 437 that is not subject to this Proposed Rule. See 80 Fed. 

Reg. 18557, 18575 n. 25; Technical Development Document, at p. 8, 109. Additionally, in both 

the Preamble to the Proposed Rule and the March 2015 Technical Development Document for 

Proposed Effluent Limitations Guidelines (the "Technical Development Document), USEPA 

clearly states that the Proposed Rule is not applicable to permitted CWT facilities that treat and 

discharge UOG Extraction Wastewater to POTWs. See 80 Fed. Reg. 18557, 18575 n. 25; 

Technical Development Document, at p. 8, 99, 109. Instead, as stated in the Technical 

Development Document, the Proposed Rule is intended to only prohibit POTWs from accepting 

UOG Extraction Wastewater directly from UOG wells, which reflects current practice in 

Pennsylvania. See Technical Development Document, at p. 109. Thus, the Proposed Rule itself 

should be so expressed.

Eureka supports USEPA's statements that the Proposed Rule does not prohibit CWTs from 

sending treated UOG Extraction Wastewater to POTWs. See 80 Fed. Reg. 18557, 18575 n. 25; 

Technical Development Document, at p. 8, 99, 109. However, because the language of the 

Proposed Rule itself is vague and ambiguous it should be revised to make it clear that shale 

operators are permitted to send their UOG Extraction Wastewater to CWTs in compliance with 

the established ELG for CWTs at 40 CFR Part 437 for pretreatment and indirect discharge to 

POTWs. The language as drafted now may be confusing to shale operators, CWT customers 

and/or the public concerning USEPA's continued allowance of UOG Extraction Wastewater to 

be pretreated at CWT facilities prior to discharge through a POTW. Accordingly, the language of 

the Proposed Rule should provide an exemption for UOG Extraction Wastewater that is treated 

at a CWT facility prior to discharge to a POTW.

1 USEPA has recognized that CWTs do not remove one-hundred percent of UOG Extraction 

Wastewater "contaminants" for discharge to POTWs and that there are varying degrees of 

treatment provided by CWTs. Technical Development Document, at p. 100.

Response 5-E

All comments under Section 5.2 “Applicability and Scope”, are addressed by the following 

response.

EPA does not agree that the final rule needs to be revised to state that shale operators are 

permitted to send their UOG extraction wastewater to CWT facilities in compliance with the 

established effluent limitations guidelines for CWT facilities at 40 CFR part 437, or that an 

exemption should be provided for UOG wastewater that is treated at a CWT facility prior to 

discharge at a POTW. The rule and record is very clear that this rulemaking only applies to the 

oil and gas extraction point source category, that it prohibits the discharge of pollutants in UOG 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

180

wastewater only to POTWs, and that it does not change any of the requirements applicable to 

CWT facilities under the existing ELG for the centralized waste treatment point source category. 

For general comments outside the scope of this rulemaking, see Response 6-A.

For comments regarding 40 CFR 435 subpart E, see Response 6-H.

For comments related to CWT facilities, see Response 6-C , Response 2-A, and Response 2-B.

Comments Regarding Definitions of PSES and PSNS

Comments

EPA-HQ-OW-2014-0598-0966 (NJ DEP pg 2)

The proposed rule at 40 CFR part 435.33 and 40 CFR part 435.34 uses the terms "Pretreatment 

Standards of Performance for Existing Sources (PSES)" and "Pretreatment Standards of 

Performance for New Sources (PSNS)", respectively. The use of these terms is not consistent 

with the use of the following existing terms "Pretreatment Standards for Existing Sources 

(PSES)" and "Pretreatment Standards for New Sources (PSNS)" promulgated throughout the 

categorical regulations, 40 CFR Chapter I, Subchapter N. Clarification related to these proposed 

terms is needed. 

Response 5-F

EPA agrees with the Commenter that in the categorical pretreatment standards regulations in 40 

CFR Chapter I, Subchapter N, the acronym “PSES” is generally defined as “Pretreatment 

Standards for Existing Sources” and the acronym “PSNS” as “Pretreatment Standards for New 

Sources.” EPA did not intend to define these terms differently with respect to the 

Unconventional Oil and Gas Extraction subcategory, as reflected in EPA’s preamble for the 

proposed rule, which defines PSES and PSNS consistently with the other categorical 

pretreatment standards. See 80 Fed. Reg. 18557, 18536 (April 7, 2015). Accordingly, based on 

this comment, EPA is adjusting the proposed regulatory text in this final rule to remove the term 

“of performance” in each of these definitions, to make them consistent with the definitions 

elsewhere in 40 CFR Chapter I, Subchapter N. 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

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6.0 OUTSIDE THE SCOPE OF THE RULEMAKING 

General: Outside the Scope of the Rulemaking

Comments

EPA-HQ-OW-2014-0598-0956 (CONSERVANCY SW FL pg 3)

We also encourage the EPA to require full disclosure of all constituents used in UOG extraction, 

so national water quality standards and state water quality standards can be established for these 

pollutants.

EPA-HQ-OW-2014-0598-0777 (ANONYMOUS pg 1)

The EPA should also propose a rule that limits the fresh water use per well. This would increase 

the development in procedures to reuse flowback which, “Mainly involves the removal of 

particulate matter and metals, with the goal of reducing any radioactivity that may be present in 

these materials (Olsson, Weichgrebe, & Rosenwinkel p. 3803). 

EPA-HQ-OW-2014-0598-0952 (C LISH pg 2)

Power plants should be required to use the best available technology to reduce the largest amount 

of pollution. Standards for how power plant wastewater is treated have not been updated in over 

30 years. In the meantime, pollution from these facilities has become increasingly toxic, since 

the pollution being "scrubbed" from the smokestacks is now going through the plants water 

treatment systems.

Every year, these plants dump billions of pounds of arsenic, lead, mercury, and selenium into 

surface waters. Existing technology can easily solve this problem and should be employed.

EPA-HQ-OW-2014-0598-0952 (C LISH pg 2)

To protect our water, the EPA and the Office of Management and Budget (OMB) should require 

power plants to "dry handle" waste from both fly ash ponds and bottom ash ponds, and to use 

evaporation treatment for scrubber sludge waste, which would reduce their water pollution by 

96%.

EPA-HQ-OW-2014-0598-0969 (MEYER pg 1)

One area the proposed standards do not address is the disposal of off-shore produced water. 

believe that the JSM technology can be used to produce an effluent stream compatible with the 

ocean environment. The greatest risk to the aquaculture is the heavy metals. The JSM technology 

can remove these to acceptable levels. 

EPA-HQ-OW-2014-0598-1010 (H ZEHNAL pg 2)

Illegal dumping of fracking wastewater in rivers and streams also needs very strong penalties. 

EPA-HQ-OW-2014-0598-0756 (ANONYMOUS pg 1)

I would like to comment that a rule be proposed that the Unconventional Oil and Gas Industry be 

prohibited from disposing of waste products in any water body, that is stream, creek, river, 

underground water body, lake, ocean and that there is a clear paper trail from the well to the final 

disposal site that is publicly available. It is currently suspected in the surrounding community 

that I live in, where unconventional gas (shale gas) is being extracted, that the waste products are 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

182

being disposed of at waste treatment facilities that are unable to adequately deal with this waste, 

or the waste is illegally dumped in an unknown location. 

EPA-HQ-OW-2014-0598-0871 (SORVIG pg 1)

I would urge you to expand this rulemaking to cover all forms of fossil-fuel wastewater 

discharges, including those related to coal and coalbed methane as well as petroleum production 

of all sorts.

EPA-HQ-OW-2014-0598-0954 (ANONYMOUS pg 1)

In 1960, the US Department of the Interior did a Geological Survey Professional Paper 356-A. 

The report concerns work done on behalf of the U. S. Atomic Energy Commission and is 

published with the permission of the Commission. (Oil Yield and Uranium Content of Black 

Shale's ). By Vernon E. Swanson. U.S. Government Printing office, Washington shows the 

serious problems of extracting the gas & oil from a radioactive source. The Hydraulic fracturing 

also contains depleted uranium in a PERF GUN. Halliburton owns the patent and is used to blow 

holes in the pipe and fracture the shale. When the fluids and gasses return to the surface, 

radioactivity is present. The product is industry regulated and is often not reported to the state. 

This jeopardizes the public. You have to examine this more thoroughly and make useful 

regulations protecting the public.

EPA-HQ-OW-2014-0598-1011 (SCHULMAN pg 1)

Furthermore, petrochemical industries should be disallowed from using clean wood fines to sop 

up tracking fluids. The whole world needs to reduce in total the burning of GHG generating 

fuels- not merely make the burning of them more efficient.

EPA-HQ-OW-2014-0598-1034 (DUFF pg 1)

In addition, I am learning that the State of Colorado as well as many other states, do not have 

reclamation standards for post-fracking projects. It is only by the work of individual cities and

counties to work to ensure the lands are reclaimed and restored to pre-existing conditions. 

Materials are left in the ground after operations end, and lands sit as waste unless an agency is 

cognizant of the operations taking place and works to restore and reclaim those lands. Perhaps 

you can address those issues in the ground as well?

Response 6-A

All comments under Section 6.1 “General: Outside the Scope of the Rulemaking,” are addressed 

by the following response.

As explained in Section VI of the preamble to the final rule, consistent with the proposal, the 

scope of this final rule is specifically limited to pretreatment standards for onshore 

unconventional (UOG) oil and gas extraction facilities (subpart C). As such, the final rule 

establishes requirements for wastewater discharges from UOG extraction facilities to POTWs. 

Comments related to previously established requirements in the existing oil and gas ELGs (such 

as for direct dischargers, or for offshore oil and gas extraction facilities) or related to the need for 

other requirements for the oil and gas industry (such as chemical disclosure, use of fresh water, 

penalties for illegal dumping, methods for spill clean-up, reclamation, burning of fossil fuels) are 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

183

outside the scope of this rulemaking. Similarly, comments related to the existing ELGs 

applicable to CWT facilities are also outside the scope of this rulemaking.

Comments related to coalbed methane extraction are also outside the scope of this rulemaking –

as EPA has specifically excluded this activity from this rulemaking and has reserved a separate 

category for a future CBM rule, if needed. See Section VI of the preamble and Response 6-D for 

additional discussion. 

Comments related to ELGs for steam electric power generating or petroleum refining are also 

outside the scope of this rulemaking.

With respect to the comment regarding “waste treatment facilities,” to the extent that commenter 

is referring to publicly-owned wastewater treatment facilities, EPA agrees that such facilities are 

not adequately able to treat wastewater from oil and gas extraction facilities – although EPA has 

not identified any cases where industry is currently sending its wastewater to POTWs. To the 

extent that the commenter is referring to privately owned treatment facilities (known as 

centralized waste treatment facilities, or CWT facilities), EPA notes that comments regarding the 

ability of CWT facilities to address oil and gas extraction wastewater are outside the scope of 

this rulemaking. See Response 6-C.

Landfill Leachate Regulations

Comments

EPA-HQ-OW-2014-0598-0977 (EIP pg 17)

EPA Should Update ELGs for the Landfill Waste Category which Includes Landfill Leachate

Commenters urge EPA to undergo a similar rulemaking for ELGs governing the discharge of 

landfill leachate from landfills that currently accept or have historically accepted oil and gas 

extraction waste. As discussed below, certain landfills accept waste associated with the 

extraction of oil and gas – including drill cuttings, drilling muds, produced sand, and produced 

water – for disposal. Those landfills then often send their leachate to nearby POTWs, which are 

unequipped to properly treat it. Leachate from landfills accepting waste from oil and gas 

extraction facilities can contain many of the same pollutants as oil and gas extraction wastewater, 

and should be subject to the same controls.

In addition to over 300 chemicals, some of which are carcinogens or suspected carcinogens, 

frequently found in oil and gas waste is NORM in the form of radium-226 and radium-228. A 

2011 study by the U.S Geological Survey found that produced waters from oil and gas operations 

had levels of radium-226 as high as 18,000 pCi/L.76 Radium-226 and radium-228 have halflives of 1,600 and 5 years respectively. Additionally, radium is highly soluble in water.

Radium and other contaminants from oil and gas waste that are disposed of in landfills could end 

up in landfill leachate. Rain and natural decomposition in waste result in leachate pools, which 
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184

can contain many of the contaminants in the landfill waste. Many landfills then dispose of 

leachate by sending it to nearby wastewater treatment facilities, including POTWs.77

Many landfills do not currently test their leachate for radioactivity despite the fact that very few 

water treatment plants are capable of treating radioactive materials. However, landfills that do 

test their leachate for radioactivity have found concerning levels of radium. One such landfill is 

Hyland landfill in Angelica, New York. Testing results from 2014 indicate that levels of radium226 in Hyland Landfill’s leachate were as high as 120 pCi/L.78 For comparison, the total radium 

limit for industrial effluent is 60 pCi/L, and the drinking water limit is 5 pCi/L.79 Hyland’s 

leachate is sent for treatment to the Village of Wellsville POTW, which discharges into the 

Genesee River.

Hyland is not a standalone example. Leachate testing results for Hakes C&D Landfill in Painted 

Post, New York showed similar results. Testing results from 2013 showed levels of radium-226 

as high as 180 pCi/L.80

Given that leachate from landfills accepting oil and gas extraction wastewater can contain many 

of the same pollutants as oil and gas extraction wastewater, EPA should begin the process of 

updating the relevant ELG.

76 U.S. Geological Survey, Radium Content of Oil and Gas Field Produced Waters in the 

Northern Appalachian Basin (USA): Summary and Discussion of Data (2011), available at 

http://pubs.usgs.gov/sir/2011/5135/pdf/sir2011-5135.pdf.

77 See Environmental Advocates of New York, License to Dump 18-19 (Feb. 2015), available at

http://www.eany.org/our-work/reports/license-dump-february-2015.

78 Id.

79 U.S. Geological Survey, Radium Content of Oil and Gas Field Produced Waters in the 

Northern Appalachian Basin, supra note 76.

80 Environmental Advocates of New York, supra note 77, at 18-19.

EPA-HQ-OW-2014-0598-0939 (KALLIO pg 2)

Landfill Leachate Loophole 

In addition to ensuring treatment of unconventional oil and gas waste fluids sent directly to water 

treatment facilities, the EPA should include treatment of landfill leachate that is sent to POTWs 

from landfills that accept UOG waste. There are several landfills in Ohio that are accepting 

solidified UOG waste. The leachate from these landfills is then disposed of at POTWs. As we 

understand from consultation with scientific experts in Ohio, this leachate is not being tested and 

treated for the UOG waste pollution that is likely present in the leachate such as radium or other 

harmful pollutants. Without testing or pretreatment, these pollutants are entering drinking water 

and posing serious health threats. We request that landfills handling fracking wastes that could 

ultimately be discharged to surface or ground waters be required to meet the requirements in the 

proposed rules in order to discharge their leachate to a POTW. 

EPA-HQ-OW-2014-0598-0963 (ANONYMOUS pg 1)

you should test the 7 landfills in the 15-20 mile radius straddling Allegheny, Westmoreland and 

Washington Counties. You will find similar levels of Radium 226 and 228 at these facilities also, 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

185

along with high levels of Benzene, Thoulene and other deadly chemicals used in the fracking 

process.

Response 6-B

All comments under Section 6.2 “Landfill Leachate Regulations,” are addressed by the following 

response.

The final rule establishes requirements for wastewater discharges from UOG extraction facilities 

to POTWs. Comments related to landfills that accept oil and gas wastewaters and the Landfills 

ELGs (40 CFR part 445) are outside the scope of this final rule. 

Centralized Waste Treatment Effluent Limitations Guidelines and Standards

Comments

EPA-HQ-OW-2014-0598-0977 (EIP pg 16)

Commenters strongly support EPA’s current study of Centralized Waste Treatment (CWT) 

facilities and treatment technologies. Given the potential increase in oil and gas wastewater sent 

to CWTs as a result of the Proposed Rule, EPA should expedite a revision to the relevant CWT 

ELG, thus closing a gap in federal regulation and ensuring that surface waters are not left 

vulnerable to oil and gas pollution.

It is clear that ELGs relating to CWTs need to be updated to reflect the same threats from oil and 

gas wastewater that POTWs face. EPA memos indicate that many CWTs cannot adequately treat 

unconventional wastewater.73 EPA stated that appropriate limits or pretreatment standards 

would need to be applied to CWTs because the current guidelines did not evaluate certain 

pollutants common in oil and gas wastewater, such as radionuclides.74 As outlined in this 

document, radioactive materials such as radium pose serious and persistent threats to public 

health and drinking water quality.

Completing this study will help begin to address critical questions about water quality and public 

health impacts of discharges from CWTs to POTWs that are not covered in the current 

rulemaking.

73 EPA, Natural Gas Drilling in the Marcellus Shale NPSED Program Frequently Asked 

Questions (2011),

available at http://www.epa.gov/npdes/pubs/hydrofracturing_faq.pdf.

74 Id.

EPA-HQ-OW-2014-0598-0968 (WA pg 2)

we urge EPA to consider including two additional, related regulatory improvements in this 

rulemaking or in another, near-term rulemaking: (1) update pollution control standards for 

centralized waste treatment facilities (CWTs) associated with fracking; (2) develop water quality 

criteria for all chemicals common to hydraulic-fractured shale gas wastewater.
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

186

EPA-HQ-OW-2014-0598-0968 (WA pg 8)

EPA should update pollution control standards for CWTs that accept shale gas wastewater. 

CWTs are subject to federally established effluent limitation guidelines (ELGs) limiting the 

pollutants that they may discharge.26 However, these ELGs are out of date; they were developed 

prior to the emergence of hydraulic fracturing methods of shale gas extraction and do not address 

all pollutants of concern in the wastewater generated by such operations. The ELGs were 

adopted in 2000 and revised in 2003,27 yet large-scale shale gas extraction was not practiced at 

all until 1997 and did not become common until the mid-2000s.28 For example, in Pennsylvania, 

no Marcellus Shale produced water was reported in natural gas operators’ wastewater reports 

until 2004.29 In fact, although shale gas represents about 30 percent of total U.S. natural gas 

production today, in 2001, when the CWT ELGs were first developed, shale gas provided less 

than 2 percent of the total.30

EPA should update the CWT ELGs to adequately address all of the constituents present in shale 

gas wastewater. In particular, the ELGs should be revised to include limitations on discharges of 

NORM, total dissolved solids, and bromides, which were not considered in developing the 

original guidelines and which EPA’s rule here notes are not part of current CWT ELGs. Even the 

shale-gas producing state of Pennsylvania has recommended that EPA update the CWT ELGs to 

include limits on these pollutants.31

In particular, the ELGs’ limits on toxic organics, NORM, chlorides, and bromides should not 

allow any releases of these chemicals to the environment. These pollutants have the potential for 

cumulative and long-term impacts, such as chronic toxicity to aquatic life and violations of 

drinking water standards, that are difficult to predict and not yet well understood. If EPA does 

not update these standards, states need to develop and implement more protective standards on 

their own. Under the Clean Water Act, states have the authority to develop their own limitation 

guidelines or to impose limitations in individual permits that are more stringent than those 

contained in federal ELGs.

26 40 C.F.R. Pt. 437. 

27Effluent Limitations Guidelines, Pretreatment Standards, and New Source Performance 

Standards for the Centralized Waste Treatment Point Source Category; Final Rule, 65 Fed. Reg. 

81,241 (Dec. 22, 2000) (codified at 40 C.F.R. Pt. 437); Effluent Limitations Guidelines, 

Pretreatment Standards, and New Source Performance Standards for the Centralized Waste 

Treatment Point Source Category, 68 Fed. Reg. 71,014 (Dec. 22, 2003) (codified at 40 C.F.R. Pt. 

437).

28See generally U.S. Department of Energy, National Energy Technology Laboratory, Shale 

Gas: Applying Technology to Solve America’s Energy Challenges, March 2011, 3, 

http://www.netl.doe.gov/technologies/oil‐

gas/publications/brochures/Shale_Gas_March_2011.pdf (summarizing the history of shale gas 

development).

29“PA DEP Oil & Gas Reporting Website ‐ Statewide Data Downloads By Reporting Period,” 

Pennsylvania Department of Environmental Protection, last modified March 27, 2012, 

https://www.paoilandgasreporting.state.pa.us/publicreports/Modules/DataExports/DataExports.a

spx.
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

187

30U.S. Department of Energy, Secretary of Energy Advisory Board, Shale Gas Production 

Subcommittee 90‐ Day Report, August 18, 2011, 6, 

http://www.shalegas.energy.gov/resources/081811_90_day_report_final.pdf.

31Michael L. Krancer, Secretary, Pennsylvania Department of Environmental Protection, to 

Shawn Garvin, Regional Administrator, EPA Region III, July 26, 2011, 2, 

http://www.epa.gov/region03/marcellus_shale/pdf/letter‐ padep‐to‐epa7‐26‐11.pdf.

EPA-HQ-OW-2014-0598-0976 (CBD pg 8)

Disposing of wastewater at a Centralized Waste Treatment (“CWT”) facility is similarly 

problematic. As discussed above, the CWT cannot treat the water if the chemical constituents of 

the water are unknown. CWTs that then discharge inadequately treated wastewater into surface 

waters, evaporation ponds, or transfer to POTWs pose the same significant risk to water quality 

and human health. This method of disposal should also be prohibited.

EPA-HQ-OW-2014-0598-0997 (EUREKA pg 4)

Accordingly, there is no level of pretreatment currently required for CWT facilities that 

discharge "treated" UOG Extraction Wastewater for discharge to POTWs. As such, any level of 

pretreatment (including simple basket filtration) could allowed by a CWT facility as long as the 

POTW can meet its discharge permit and continue routine residuals disposal. This seems 

counterintuitive to the Proposed Rule, which would appear designed to minimize the impact of 

the discharge of pollutants from POTWs associated with UOG Extraction Wastewaters.

The USEPA has decided to rely, at least for the time being, on industrial pretreatment programs 

and POTW discharge permits or the NPDES permitting process to define the level of 

pretreatment for CWT facilities. While this may be acceptable in many cases, there are some 

smaller POTWs that do not have industrial pretreatment programs and/or have limited 

monitoring requirements for their discharge. It is also possible that larger POTWs with 

pretreatment programs will not have monitoring requirements for TDS or the many constituents 

of TDS or TENORM. This could lead to the discharge of significant amounts of these 

constituents as they pass through POTWs.

Accordingly, Eureka recommends that the USEPA expedite development of national 

pretreatment standards as soon as possible that would be applicable all UOG Extraction 

Wastewater that is indirectly discharged to POTWs, including from CWT facilities. In the 

interim, at a minimum, USEPA should require that POTWs may only discharge UOG Extraction 

Wastewater that has been pretreated at a CWT facility (either new and existing) that meets the 

end-of-pipe limits developed by the Pennsylvania Department of Environmental Protection at 25 

Pa. Code 95.10, requiring the following:

The discharge may not contain more than 500 mg/L of TDS as a monthly average.

The discharge may not contain more than 250 mg/L of total chlorides as a monthly average.

The discharge may not contain more than 10 mg/L of total barium as a monthly average.

The discharge may not contain more than 10 mg/L of total strontium as a monthly average.

The discharge complies with the performance standards in 40 CFR 437.45(b) (relating to new 

source performance standards (NSPS)).
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

188

EPA-HQ-OW-2014-0598-0939 (KALLIO pg 1)

We are concerned that the pretreatment is not meeting the zero discharge standards proposed in 

these rules and dangerous water soluble contaminants like radium 226 and 228 and glycol ethers 

remain in the wastewater. We additionally believe these rules could be strengthened to ensure 

communities are aware of these dangers and that they are given the opportunity to make 

informed decisions. Finally, we believe the rules should apply to any wastewater (treated or nontreated) which may enter a community’s drinking water system. This would be in the best 

interest of public health. 

EPA-HQ-OW-2014-0598-0939 (KALLIO pg 2)

Case Study in Ohio: Patriot Water Treatment, LLC 

It is our understanding that currently in Ohio, the Patriot Water Treatment, LLC accepts and 

treats fracking waste fluids prior to sending it to the City of Warren in Ohio for discharge. We 

question whether the waste fluid is adequately pretreated to remove pollutants such as bromide, 

radium 226 and 228, or glycol ethers, which could then end up in public drinking water supplies 

downstream. 

EPA-HQ-OW-2014-0598-0956 (CONSERVANCY SW FL pg 2)

Improper wastewater disposal from the C0111er-Hogan well 

The challenges related to proper oil and gas waste disposal are demonstrated when reviewing the 

waste disposal records for the Collier-Hogan well in Collier County, Florida. A production well 

was permitted at the Hogan well site in 2012 followed by a corresponding saltwater disposal 

well. In 2013, well operators undertook a hydraulic fracturing operation at the Collier-Hogan 

well which generated over 200,000 gallons of waste water. The State of Florida does not require 

a permit for such operations, and consequently does not require the well operator disclose plans 

for disposing of wastewater. The saltwater disposal well was never constructed on site and all 

wastewater generated at the Hogan site was instead transported off site to a pretreatment facility 

in Opa Locka, FL. The facility manager was quoted as saying he believed the wastewater to be 

"plain groundwater that's got some oil with it.'5 It appears that ultimately, the waste from this 

facility was then transferred to Miami-Dade facilities where it was likely disposed of in a 

combination of injection well and ocean outfall. 

This incident highlighted several key concerns with the current waste treatment process: 

Trade secret laws often prevent treatment facilities accepting waste from knowing what 

constituents are present. Consequently, waste may not be handled appropriately at the facility. 

Because oil and gas operations are exempt from the Resource Conservation and Recovery Act 

(RCRA), tracking requirements do not apply. This makes it difficult to determine where waste is 

disposed. Furthermore, well operators in Florida are not required to disclose of the waste 

disposal plans up front. 

'California 14 CA AOC 176 1 2 Craven. J. Fracking Secrets: The limits ofTrade Secret 

Protection in Hydraulic Fracturing. Van. J.Enl.and Tech. L.• 

16:2:412 3Ibid. at414 4 Stringfellow, W., Domen, J., Camarillo, M. Sandelin, W., and Borglin, 

S. 2014. Physical, chemical, and biological characteristics ofcompounds used in hydraulic 

fracturing. Journal of Hazardous Materials, 275: 37-54. 5 Gibson, W. (2014, July 5), Controversy 

spreads over Everglades oil drilling. Sun Sentinel. 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

189

EPA-HQ-OW-2014-0598-0966 (NJ DEP pg 1)

the proposal establishes a prohibition to discharge “fracking” wastewater directly to a POTW, 

yet allows the wastewater to be discharged into a Centralized Waste Treatment (CWT) facility 

which could then discharge into a POTW. However, the EPA did not propose to update the 

ELGs that apply to CWT facilities. Therefore unless CWT regulations are updated to address this 

type of wastewater, the rule provisions may not adequately protect POTWs. 

EPA-HQ-OW-2014-0598-0966 (NJ DEP pg 2)

None of the subcategories under the CWT categorical regulation contain the subparts regulated 

under the onshore unconventional oil and gas extraction (UOG) operations. The CWT 

categorical regulation, 40 CFR Part 437, only covers the following four 

(4) subcategories: 

~ Subpart A: Facilities treating or recovering metal from metal-bearing waste, wastewater, 

or used material received from off-site ("Metals Treatment and Recovery subpart); 

~ Subpart B: Facilities treating and recovering oil from oily waste, wastewater, or used 

material received from off-site ("Oils Treatment and Recovery subpart"); 

~ Subpart C: Facilities treating or recovering organics from organic waste, wastewater, or 

used material received from off-site ("Organics Treatment and Recovery subpart); 

~ Subpart D: Facilities treating or recovering some combinations of metal-bearing, oily, 

organic waste, wastewater, or used material received from off-site from Subparts A, B, and C 

("Multiple Wastestreams subpart"). 

When EPA developed the pretreatment standards for the CWT categorical regulation, EPA did 

not consider wastewater pollutants which may be present from the UOG operations (for 

exan1ple, radionuclides and Total Dissolved Solids, including chlorides and sulfates), or 

technologies to remove such pollutants. These wastewater pollutants of UOG operations may, if 

not properly treated at CWT facilities, pass through and discharge to POTWs which also are not 

designed to treat these pollutants. 

EPA-HQ-OW-2014-0598-0976 (CBD pg 8)

Disposing of wastewater at a Centralized Waste Treatment (“CWT”) facility is similarly 

problematic. As discussed above, the CWT cannot treat the water if the chemical constituents of 

the water are unknown. CWTs that then discharge inadequately treated wastewater into surface 

waters, evaporation ponds, or transfer to POTWs pose the same significant risk to water quality 

and human health. This method of disposal should also be prohibited.

EPA-HQ-OW-2014-0598-1054 (NACWA pg 1)

NACWA recommends that EPA clarify the role of centralized waste treatment (CWT) facilities 

that discharge to POTWs. These CWT facilities should only accept UOG wastewater if approved 

to do so by the local municipality. 

EPA-HQ-OW-2014-0598-0721 (ANONYMOUS pg 1)

This rule appears to only prohibit the discharge of unconventional oil and gas pollutants directly 

into the headworks of a POTW. It does not prohibit the discharge from an IU in the POTW's 

service area, because any IU could claim to be a Centralized Waste Treatment Facility regulated 

under 40 CFR 437. Any discharge from the service area will likely be far away from the 

production well, and the wastewater would be hauled there, thereby making any such IU a CWT. 

The CWT regulation does not address most of the pollutants of concern identified in this 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

190

rulemaking (e.g., TDS) that would pass through a POTW to the receiving water and is not 

amenable to POTW treatment processes. If a POTW has an approved pretreatment program, 

their local limits will not likely address these pollutants of concern, because the POTW does not 

have any reason to develop such a local limit based on NPDES permit limits or water quality 

standards. In addition, implementing the limits in 437 will not address these pollutants of 

concern either. If the POTW does not have an approved pretreatment program, you are left with 

only the limits in 437, which again, does not address the pollutants of concern. As such, the 

CWTs may remove some solids, remove some oil and grease, and perhaps precipitate some 

metals, but the main pollutants of concern will remain untreated at a CWT. Most POTWs do not 

have a TDS limit in their NDPES permits, so even if TDS passes through the POTW, there will 

not be an actual pretreatment violation of "pass through" as defined in 40 CFR 403.3 and 

prohibited by 40 CFR 403.5. The POTW has to violate its NPDES permit for there to be a 

pretreatment violation of "pass through." 40 CFR 437 either needs to be updated to implement 

appropriate limits for pollutants of concern in unconventional oil and gas wastewater, or 40 CFR 

437 needs to also prohibit the discharge to POTWs. 

Response 6-C

All comments under Section 6.3 “Centralized Waste Treatment Effluent Limitations Guidelines,”

are addressed by the following response.

As explained in Section VI of the preamble to the final rule, consistent with the proposal, the 

scope of this final rule is specifically limited to pretreatment standards for onshore 

unconventional (UOG) oil and gas extraction facilities (subpart C). As such, the final rule 

establishes requirements for wastewater discharges from UOG extraction facilities to POTWs.

These requirements are for zero discharge of the pollutants in UOG extraction wastewater to 

POTWs. Pollutant discharges from centralized waste treatment (CWT) facilities are subject to 

ELGs under 40 CFR Part 437, and not 40 CFR Part 435 (which the final rule amends). 

Comments related to the centralized waste treatment (CWT) ELGs are outside the scope of the

final rule. As noted by some commenters, however, EPA is currently conducting a study of this 

industry through the Clean Water Act effluent guidelines program planning process. The study 

will help EPA determine whether revisions are warranted to the 40 CFR Part 437 effluent 

guidelines for centralized waste treatment facilities.

Similarly, comments related to water quality criteria, well permitting, well disposal, and RCRA 

requirements are outside the scope of this final rule. 

Coalbed Methane Wastewater Effluent Guidelines and Standards

Comments

EPA-HQ-OW-2014-0598-0977 (EIP pg 17)

EPA Should Expedite Its Revision of ELGs Associated with Coalbed Methane Extraction

EPA should expedite a parallel ELG update for coalbed methane extraction. Commenters believe 

that EPA’s decision to delist CBM from the definition of UOG was premature and that EPA 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

191

should reconsider this proposal in light of inevitable shifts in gas prices, demand, and costs of 

wastewater treatment.

Coalbed methane extraction produces large volumes of wastewater characterized by the presence 

of numerous contaminants at potentially high concentrations. Inadequate treatment and discharge 

of these wastes jeopardizes the integrity of surface water, can lead to increased public health 

risks from drinking water, threatens fish and wildlife and causes other negative environmental 

impacts.

The Congressional intent underlying the Clean Water Act’s Effluent Guidelines and Limitationssetting process included prevention of “pollution havens.” Coalbed methane extraction ELG’s 

are necessary and affordable treatments are available to avoid this outcome in places where 

coalbed methane extraction is occurring.75

75 See Docket ID No. EPA-HQ-OW-2010-0824: Comments on Preliminary 2012 Effluent 

Guidelines Program Plan: Coalbed Methane Extraction and Shale Gas Wastewater Treatment 

(comments submitted by nonprofit organizations and other environmental and public health 

advocacy groups).

EPA-HQ-OW-2014-0598-0769 (POHLY pg 1)

I urge EPA to include coalbed methane production in this rulemaking 

EPA-HQ-OW-2014-0598-0820 (SHAW pg 1)

I urge EPA to include coalbed methane production in this rulemaking a

EPA-HQ-OW-2014-0598-0905 (STRAWN pg 1)

I urge EPA to include coalbed methane production in this rulemaking 

EPA-HQ-OW-2014-0598-0923 (GROSS pg 1)

to address coalbed methane production.

EPA-HQ-OW-2014-0598-0817 (PIETRO POGGI pg 1)

I urge EPA to include coalbed methane production in this rulemaking 

EPA-HQ-OW-2014-0598-0818 (GRINDLEY pg 1)

I urge EPA to include coalbed methane production in this rulemaking 

Response 6-D

All comments under Section 6.4 “Coalbed Methane Wastewater Effluent Guidelines and 

Standards” are addressed by the following response.

Although coalbed methane could fit into the definition of UOG in the final rule, EPA has clearly 

specified that coalbed methane extraction is outside the scope of this rulemaking. Thus, any 

comments regarding the need for ELGs to address coalbed methane extraction are outside the 

scope of this rulemaking. EPA did not propose requirements for wastewater discharges from 

coalbed methane oil and gas extraction and the final pretreatment standards do not apply to 

pollutants in wastewater discharges to POTWs associated with coalbed methane extraction. 

Rather, EPA expressly reserved a separate unregulated subcategory for coalbed methane in this 

final rule. See Section VI of the final preamble for additional discussion. 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

192

For information on coalbed methane as it relates to 40 CFR Part 435, see 

http://www.epa.gov/eg/oil-and-gas-extraction-effluent-guidelines#cbm

Water Quality Criteria for Hydraulic Fracturing Chemicals and Unconventional 

Oil and Gas Wastewater

Comments

EPA-HQ-OW-2014-0598-0968 (WA pg 9)

EPA should develop water quality criteria for all chemicals in shale gas wastewater

Water quality criteria are numeric limitations on pollutants in a particular water body that are 

adequate to support the water body’s designated uses. EPA develops recommended water quality 

criteria, which states uses as guidance in setting and updating their own local criteria. 

Additionally, EPA must approve state water quality standards and can promulgate standards for a 

state if the state fails to adopt adequate ones on its own.32 Further, when a facility’s discharge 

has the potential to cause criteria for a receiving water body to be violated, that facility’s permit 

must contain water quality‒ based limitations to ensure that water quality is protected.

EPA has developed criteria for some pollutants of concern in shale gas wastewater, such as 

chloride, oil and grease, suspended solids, turbidity, and nitrates. However, many other 

pollutants of concern—like total dissolved solids, bromide, and NORM—lack EPArecommended criteria. To its credit, EPA is updating recommended water quality criteria for 

chlorides, which were developed in 1988. The agency has also expressed interest in developing 

criteria for bromides but has not taken any formal steps to do so.

EPA should proceed with both actions. More generally, it should update all of its recommended 

criteria for shale gas wastewater constituents and ensure that states expeditiously update their 

own criteria to provide equivalent protection. These criteria are needed to provide states with 

guidance on how to set limits on pollutants that are adequately protective of water quality.

32 33 U.S.C. § 1313(c); 40 C.F.R. § 131.5

Response 6-E

As explained in Section VI of the preamble to the final rule, consistent with the proposal, the 

scope of this final rule is specifically limited to pretreatment standards for onshore 

unconventional (UOG) oil and gas extraction facilities (subpart C). As such, the final rule 

establishes requirements for wastewater discharges from UOG extraction facilities to POTWs.

The development of water quality criteria is outside the scope of the final rule. 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

193

Underground Injection Control and Seismicity 

Comments

EPA-HQ-OW-2014-0598-0976 (CBD pg 6)

For example, the use of underground injection wells has proven to be a highly dangerous method 

of disposal. When large quantities of wastewater are injected into subsurface formations, the risk 

of triggering an earthquake increases. This “induced seismicity” has been demonstrated in many 

states where injection wells have proliferated.

The wastewater generated as a byproduct of fracking has been linked to a dramatic increase in 

seismic activity in states where the wastewater is injected into wastewater disposal wells.24 As 

wastewater disposal has increased due to fracking, so have the frequency and the strength of 

earthquakes. Near Prague, Oklahoma, injection wells disposing of fracking waste caused a 

magnitude 5.7 earthquake—the largest ever recorded in Oklahoma—in November 2011. The 

record-setting tremor destroyed 14 homes, injured 2 people, and caused millions of dollars’ 

worth of damage to homes and buildings near the epicenter.25

As recently as 2008, Oklahoma experienced only 1 or 2 earthquakes per year that were M3.0 or 

larger.26 But from the beginning of 2014 through May 2, Oklahoma already experienced 145. 

This exponential increase is attributable to the massive amount of wastewater resulting from 

fracking.27

Fracking has been associated directly to seismic events as well. Researchers determined that a 

magnitude 4.4 earthquake and as many as 100 aftershocks were caused by hydraulic fracturing 

near Fox Creek, Canada in January 2015.28 One study found that 77 earthquakes in Ohio 

between magnitude 1.0 and 3.0 were likely caused by nearby fracking activity.29 Fracking has 

also directly caused two earthquakes in England30 and 38 earthquakes in British Columbia, the 

largest registering at magnitude 3.8.31

Wastewater disposal has also led to the contamination of scores of protected underground 

sources of drinking water. DOGGR and the California State Water Resources Control Board 

have confirmed that as many as 490 waste disposal wells have been injecting oil industry 

wastewater into clean aquifers that were supposed to be protected under the federal Safe 

Drinking Water Act.32 These aquifers may now be irreparably contaminated. Water sampling 

from nearby water supply wells showed high concentrations of arsenic, thallium, and nitrates in 

excess of federal drinking water standards. While the state issued orders to shut down a handful 

of wells, the vast majority of these wells continue to operate illegally, further jeopardizing those 

protected aquifers.

Oil fields in California produce on average 15 barrels of this produced water for every barrel of 

oil extracted.33 Because of the vast amounts of wastewater that result from well stimulation 

occurring around the state, there is no doubt that such activities are in part responsible for 

wastewater disposal problems that led to aquifers being degraded. And because benzene and 

other harmful chemicals are so prevalent in well stimulation flowback fluid, the most dangerous 

wastewater comes directly from these wells that undergo well stimulation treatments. With 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

194

continued and expanding well stimulation (an estimated rate of 150 wells per month), the water 

contamination issues stemming from wastewater disposal will only worsen over time.

State officials have been on notice for years that the state-run Underground Injection Control 

program violates the federal Safe Drinking Water Act because it fails to meet minimum 

standards of protection for our groundwater.34 The EPA has repeatedly pointed to “serious 

deficiencies” in the implementation of the program. Yet DOGGR has failed to fix the problems 

and come into compliance with federal law even as increasing evidence emerges that the damage 

and risk to our aquifers is orders of magnitude greater than reflected by the emergency shutdown orders issued to date.35 DOGGR has thus far been unable determine how many sources of 

drinking water are jeopardized through the rampant disposal of oil industry wastewater. 

DOGGR’s failure to protect groundwater that could be used for drinking and irrigation is clearly 

an emergency, particularly since the Governor has already used his emergency authority to 

implement 20 executive orders related to water usage in response to the unprecedented 

drought.36 Thus, wastewater injection should also be prohibited.

24 Keranen, K.M. et al., Sharp Increase in Central Oklahoma Seismicity since 2008 induced by 

Massive Wastewater Injeciton, Sciencexpress (July 3, 2014), 

http://www.sciencemag.org/content/early/recent (“Keranen 2014”); Ellsworth, William L., 

Injection-Induced Earthquakes, Science 341, 1225942, doi: 10.1126/science.1225942 (2013). 25 

Keranen 2014.

26 USGS, Record Number of Oklahoma Tremors Raises Possibility of Damaging Earthquakes, 

Updated USGS- Oklahoma Geological Survey Joint Statement on Oklahoma Earthquakes (May 

2, 2014), http://earthquake.usgs.gov/contactus/golden/newsrelease_05022014.php.

27 Keranen 2014.

28 Howell, D., Researchers Study Aftershocks of Fox Creek Earthquake Possibly Linked to 

Fracking, Edmonton Journal, (February 3, 2015)

http://www.edmontonjournal.com/Researchers+study+aftershocks+Creek+earthquake+possibly+

linked+fracking/10 781866/story.html.

29 Skoumal, R., et al, Earthquakes Induced by Hydraulic Fracturing in Poland Township, Ohio, 

105 Bulletin of the Seismological Society of America 1 (2015).

30 UK Department of Energy & Climate Change, Fracking UK Shale: Understanding 

Earthquake Risk (2014) at 2

31 BC Oil and Gas Commission, Investigation of Observed Seismicity in the Horn River Basin 

(August 2012).

32 California Department of Conservation Division of Oil, Gas, & Geothermal Resources, Letter 

dated February 6, 2015 from Steven Bohlen, State Oil and Gas Supervisor Division of Oil, Gas 

& Geothermal Resources to Jane Diamond, Director Water Division EPA Region IX and 

enclosure B (Feb. 6, 2015)

33 California Department of Conservation Division of Oil, Gas, and Geothermal Resources, 

2013 Preliminary Report of California Oil and Gas Production Statistics, Publication No. PR03 

(May 2014) available at: 

http://ftp.consrv.ca.gov/pub/oil/annual_reports/2013/PR03_PreAnnual_2013.pdf.

34 See, e.g., USEPA, Letter from David Albright, Manager Ground Water Office to Elena 

Miller, State Oil and Gas Supervisor at California Division of Oil, Gas, and Geothermal 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

195

Resources re California Class II Underground Injection Control Program Review (Jul. 18, 2011), 

finding several deficiencies in DOGGR’s Underground Injection Control program.

35 USEPA, Letter from Jane Diamond, Director Water Division U.S. EPA Region IX to 

Jonathon Bishop, Chief Deputy Director of California State Water Resources Control Board and 

Steven Bohlen, Oil and Gas Supervisor, California Division of Oil, Gas and Geothermal 

Resources re EPA's July 17, 2014 letter re the SWDA and the UIC Program (Dec. 22, 2014).

36 Office of California Governor Edmund G. Brown, Declaration of State of Emergency 

Declaration (Jan. 17, 2014) (citing Gov. Code sections 8558 and 8625 as legal authority to 

promulgate 20 Executive Orders in response to drought), available at 

http://gov.ca.gov/news.php?id=18379.

EPA-HQ-OW-2014-0598-0813 (ANONYMOUS pg 2)

Since the proposed rule under the CWA to address UOG wastewater disposal through POTWs 

will not change industry practice, it seems that a wiser use of the EPAs resources would be to 

regulate potential environmental concerns related to UOG wastewater under the SDWA. If in 

fact UOG wastewater is as harmful as EPA would lead us to believe, then it should focus its 

efforts on the regulation of the industry standard, the use of Underground Injection Control 

wells.

EPA-HQ-OW-2014-0598-0943 (AWWA pg 1)

Additionally, we ask that EPA continue further work to identify other areas where additional 

regulatory, voluntary, and research efforts are needed on related issues, such as whether changes 

to the Class II category of the UIC program under the Safe Drinking Water Act are or are not 

needed to fully accommodate UOG extraction wastewater while being fully protective of current 

and potential future drinking water aquifers. AWWA remains concerned that the current UIC 

regulations may not be sufficiently protective of potential future drinking water aquifers, as 

aquifers with greater than 10,000 TDS may be needed in light of increasingly scarce drinking 

water supplies in much of the country. 

EPA-HQ-OW-2014-0598-0969 (MEYER pg 1)

Deep well injection is not necessary, when JSM technology is used. There is a risk when the 

produced water is deep well injected. Injection of an incompressible fluid into an incompressible 

rock layer can produce an incompatible situation. Fractures into clean water aquifers are 

theoretically possible, either through fissure or pipe failure. Use of the JSM effluent for road salt 

or chlor-alkali feed eliminates this need. The collection of the metals in a fixed state would 

provide for safe disposal into one of the several secure landfills which can be monitored for 

adverse conditions. Accidental contamination of an aquifer with high salt produced water would 

compete with the LOVE Canal disaster. It could take centuries to clean up a spill at 6000 ft. in 

one of the clean water aquifers. 

Response 6-F

All comments under Section 6.6 “Underground Injection Control and Seismicity” are discussed 

by the following response. 

EPA disagrees that underground injection has proven to be a highly dangerous method of 

disposal of oil and gas wastewaters. Underground injection is by far the most common method of 
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196

managing oil and gas extraction wastewaters, and is regulated under the Safe Drinking Water 

Act and its implementing Underground Injection Control regulations. To the extent that 

commenters are suggesting that this activity is not sufficiently regulated, such comments are 

outside the scope of the final rule.

With respect to the comment suggesting that UOG operators can apply the specified technology 

to treat and reuse the wastewater (as road salt, chlor-alkali feed), EPA notes that the scope of this 

rulemaking is limited to establishing requirements for discharges of UOG wastewater to POTWs 

– and thus, any regulations or requirements with respect to road-spreading or other reuse of the 

wastewater is outside the scope of this rulemaking.

To the extent that the commenter is suggesting that this technology can be used to meet the zero 

discharge requirements in this rule, EPA notes that it is not prescribing any particular technology 

that must be used to meet the zero discharge requirements in this final rule. Rather, in 

establishing ELGs and pretreatment standards, EPA identifies a candidate technology or 

technologies that meet the statutory factors, and then establishes discharge limitations based on 

levels of reductions achieved by these technologies. Here, EPA has established zero discharge 

requirements based on consideration of certain available technologies – including reuse of UOG 

wastewater for purposes of fracturing new wells. To the extent that technologies exist to enable 

reuse for purposes other than fracturing another well, the rule would allow UOG operators to use 

other such technologies where appropriate to meet the zero discharge requirements in this rule. 

Solid Waste and Emergency Response

Comments

EPA-HQ-OW-2014-0598-0976 (CBD pg 7)

Oil and gas companies have been dumping waste into open sumps—lined or unlined open pits 

that allow chemicals to evaporate into the air, leach into the soil and groundwater, or spill into 

surface waters during heavy precipitation. These open pits are also a substantial hazard for 

wildlife that mistake these toxic pits for a clean source of water. There are hundreds of pits in 

California, and there is very little oversight over these wastewater receptacles. A significant 

portion of them, over 200 in Kern County, are unpermitted.37 This method of disposal should 

also be prohibited.

EPA-HQ-OW-2014-0598-0956 (CONSERVANCY SW FL pg 3)

we encourage the EPA to amend RCRA to include UOG wastewater under the definition of 

"hazardous waste: " This waste has proven to cause significant threats to the environment and 

public hea~.7 Amending RCRA to classify UOG wastewater as a "hazardous waste" would 

require states and local municipalities to impose a tracking system on wastewater to prevent 

situations, such as Hogan, from occurring. 

EPA-HQ-OW-2014-0598-0976 (CBD pg 7)

Oil and gas companies have been dumping waste into open sumps—lined or unlined open pits 

that allow chemicals to evaporate into the air, leach into the soil and groundwater, or spill into 
Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

197

surface waters during heavy precipitation. These open pits are also a substantial hazard for 

wildlife that mistake these toxic pits for a clean source of water. There are hundreds of pits in 

California, and there is very little oversight over these wastewater receptacles. A significant 

portion of them, over 200 in Kern County, are unpermitted.37 This method of disposal should 

also be prohibited.

37 Cart, Julie, Hundreds of Illicit Oil Wastewater Pits Found in Kern County, Los Angeles 

Times (Feb. 26, 2015), http://www.latimes.com/local/lanow/la-me-ln-pits-oil-wastewater20150226-story.html

Response 6-G

All comments under Section 6.7 “Solid Waste and Emergency Response,” are addressed by the 

following response.

As explained in Section VI of the preamble to the final rule, consistent with the proposal, the 

scope of this final rule is specifically limited to pretreatment standards for onshore 

unconventional (UOG) oil and gas extraction facilities (subpart C). As such, the final rule 

establishes requirements for wastewater discharges from UOG extraction facilities to POTWs.

The disposal of waste into sumps, pits, etc and requirements under the Resource Conservation 

and Recovery Act (RCRA), are outside the scope of the final rule.

Beneficial Reuse of Produced Water for Agriculture and Wildlife Uses and Land 

Application

Comments

EPA-HQ-OW-2014-0598-0976 (CBD pg 8)

Some oil companies have attempted to sell toxic wastewater to farmers to be used in irrigation. 

But the wastewater used for irrigation in California contains harmful chemicals such as acetone 

and methylene chloride, along with oil, making this method of water disposal dangerous and 

unsuitable.38 Some parts of the country have used wastewater as a method for de-icing roads, 

allowing this contaminated water to directly interact with surface water and soil. These methods 

of disposal should also be prohibited.

EPA-HQ-OW-2014-0598-0976 (CBD pg 8)

Some oil companies have attempted to sell toxic wastewater to farmers to be used in irrigation. 

But the wastewater used for irrigation in California contains harmful chemicals such as acetone 

and methylene chloride, along with oil, making this method of water disposal dangerous and 

unsuitable.38 Some parts of the country have used wastewater as a method for de-icing roads, 

allowing this contaminated water to directly interact with surface water and soil. These methods 

of disposal should also be prohibited.
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38 Cart, Julie, Central Valley’s Growing Concern: Crops Raised with Oil Field Water, Los 

Angeles Times (May 2, 2015) http://www.latimes.com/local/california/la-me-drought-oil-water20150503-story.html#page=1

Response 6-H

All comments under Section 6.8 “Beneficial Reuse of Produced Water for Agriculture and 

Wildlife Uses and Land Application,” are addressed by the following response.

As explained in Section VI of the preamble to the final rule, consistent with the proposal, the 

scope of this final rule is specifically limited to pretreatment standards for onshore 

unconventional (UOG) oil and gas extraction facilities (subpart C). As such, EPA did not 

propose to revise existing ELGs for other subcategories within 40 CFR part 435. These 

comments pertain to subpart E of 40 CFR Part 435, beneficial reuse of produced water for 

agricultural and wildlife propagation, and are outside the scope of the final rule. With respect to 

the comment regarding prohibition of land application of produced water, EPA notes that this 

rulemaking is limited to regulating discharges of pollutants in UOG wastewater to POTWs; 

thus, regulation of land application of produced water (e.g. road deicing) is also beyond the 

scope of this rulemaking. See Response 1-ZZ.