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 2046 0Pretreatment 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 s tandards 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

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- 0598 and in hard copy at the EPA Docket Center Public Reading Room. The telephone n umber 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

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- 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

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- 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.” T he individual comment excerpts classified to a specific topic are reproduced within the chapter or subchapter corresponding to that topic and they a ppear 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

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- 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 anot her 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 , Res ponse 4

- C ). While EPA endeavored to be accurate and consistent in assigning comment excerp ts 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 g eneral 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), whe re 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 thePretreatment Standards for Unconventional Oil and Gas Extraction:

EPA’s Response to Public Comments preamble and the rest of the administrative re cord 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 f

inal rule record index and how to use it, see the Docket Users Guide (DCN SGE01247 )

.Table of Contents

Table of Contents
1.0 L EGAL A UTHORITY AND E XECUTIVE O RDER R EQUIREMENTS

................................ ............. 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 I MPLEMENTATION

................................ ................................ ................................ .............. 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

........................... 6 4
3.0 D ATA U SED TO S UPPORT THE R ULE

................................ ................................ ................... 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 R ATIONALE 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 Publicl y 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 R EGULATORY L ANGUAGE

................................ ................................ ................................ 165

Definitions

................................ ................................ ................................ ........... 165 Applicab ility and Scope

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

................................ ....... 180
6.0 O UTSIDE THE S COPE OF THE R ULEMAKING

................................ ................................ ...... 181Table 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

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

6 

## Coded Comment Excerpts
1.0 L EGAL 

### A UTHORITY AND 

### E XECUTIVE 

### O RDER 

### R EQUIREMENTS EPA’s Approach for Establishing Pretreatment Standards Comments
EPA
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- 0967 (NE pg 4) Second, EPA's practice of "design[ing] nationally applicable pretreatment standards to ensure that wastewaters from direct and indirect di schargers [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 i t 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 pretrea tment 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 (3 rd 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 requir es 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 (5 thPretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

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

. E PA 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 Practi cable 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 discharg ers applying BPT/ BAT / BADCT technology, as Congress intended

. EPA notes that it did not

– as the c ommenter suggest s

– 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 r emoved by the technology basis at 100 percent fo r 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 POTW s
. 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 Pre treatment Standards for New Sources ( PSNS )

. Categorical pr etreatment 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 PSE S as it considers in promulgating BPT/ BAT. See Natural Resources Defense Council v. EPA, 790 F.2d 289, 29 4 (3 rd Cir. 1986); Chemical Manufacturers’ Ass’n v. EPA , 870 F.2d 177 (5 th 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 i n direct dischargers, in establishing the zero
- discharge based pretreatmen t standards in this final rule.

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

8 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 discharge rs, 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 dis ch argers, and consider ed the appropriate technology

- based factors in establishing the pretreatment standards in this final rule.

Comments
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- 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 discha rge 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 equ ivalent 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 fea sibly 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 b etween 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 o f 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 th e 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 pe rcent 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 Congre ss’ objective of ensuring pollutant removals at least equivalent to that obta ined by direct dischargers. EPA disagrees with the commenter’s terminology indicating that EPA found zero discharge to be “feasib le. ” The statutory factors EPA considers to establish pretreatment standards based onPretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

9 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 ava ilable and economically achievable

– but does not refer to technological or economic “feasibility.” Accordingly, i n 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 ( CW T ) facilities

– thus evidencing that such wastewater management alternatives are in fact widely available and economically achievable

. EPA also looked at futur e availability of UIC disposal, based on comments suggesting that such availability may be limite d

– 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 pretreat ment standards in this final rule

.

Comments
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- 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 i s 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 dis agrees with the commenter’s use of the terminology “technologically and economically feasible ” in characterizing the analyti cal 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

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

10 EPA
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- 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 over looked 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 disagr ees 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 ac hievable (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 constitut e “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, b oth the B AT level of control applicable to existin g sources and the B ADCT 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 “sha ll 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))

. Fo r new sources, the standard of performance shall include where practicable, a “standard permitting n o discharge of pollutants. ” (CWA section 306(a)(1).

Comments
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- 0951 (IPAA pg 3) In part, EPA argues that its decision is based on the pa ttern 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 si milar 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

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

- based and analogous to B AT 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 s ource 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 accordanc e 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 to xic 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 th e 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

. W ith respect to the Legislative History that the commenter references , EPA notes that the final rule is in fact consistent with the l anguage 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 makin g a direct discharge, it would be required to meet zero discharge; and thus, under the final rule, the level o f 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 tec hnologies , EPA established a zero pollutant discharge requirement for all ind irect dischargers

. However, to the extent that POTWs are or become capable of removing pollutants in UO G wastewater , indirect dischargers may be able to obtain removal credits for such POTW pollutant removal s
. (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

12 Comments
EPA
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- 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 trea ted 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 ec onomic 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 t he 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 discus sed 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 ) , inc luding 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 technolog ies 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 te chnologically available , economically achievable (for BAT) and do not present a barrier to entry for new sources (for BADCT)

.

Comments
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- 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 measure s 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 id entified 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 bePretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

13 a n 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) mea ns: (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 “disch arge” 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 th e 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, un der 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 (5 th 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 effl uent 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 pas s through the POTW untreated furthers the CWA goal of eliminating the discharge of pollutants to navigable waters.

Comments
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- 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
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- 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 th e same factors in promulgating PSNS because NSPS and PSNS are analogous standards. EPA has applied the appropriate controlPretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

14 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
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- 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 cons ideration 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 Pr oposed 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 a ll 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 (9t h 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

.

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

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- 0977 (EIP pg 14) Proposed Rule Supports Clean Water Act and Safe Drinking Water Act Integr ation, 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 suppo rts 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 publ ic 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 alt ogether, 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 AnalysisPretreatment 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 th at 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 cred its 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 i nterference are expected to occur, compare the removal capability of the discharging industry to the removal capability of a “well

operated POTW.” EPA began, rather than ended its analysis, with removal efficacy in a way that would obviate differences betw een 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 comparison s 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 “Pollu tants 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 determin e 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 f or 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 aPretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

17 consideration of the factors specified in section s 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 disagree s that it did not iden tify any pollutants of concern, as EPA in fact determin ed that all pollutants in the UOG extraction waste water are pollutant s of concern

. See also preamble to the final rule at Section VI.B.3

. Moreover, EPA notes that

– contrary to the co mmenter’s assertion

– EPA did in fact identify specific constituents in UOG wastewater that presented particular concerns with respect to pass

through 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 dis solved 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 operati on 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 bel ow, Failure to compare the removal capability of the discharging industry to the removal capability of a “well

- operated POTW. ” Failure to evaluate presence and concentrat ion 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 presente d 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 (5 th Cir. 1998) (rejecting industry argument that lack of survey data on older wells rendered EPA’s offshore oil and ga s 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 po llutants by indirectPretreatment 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 c onsider 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 exc eed 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 POT W to vi olate 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 n o such individual, localized analysis is required for purposes of setting categorical pretrea tment 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 (5 th Cir. 1989)

. For the purpose of determining whether to promulgate national category

- wide pretreatment standards, EPA generally determines that there i s 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 dischar gers 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 ind ustry 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 appea rs 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 firs t 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 well

op erated POTWs is less than the percent removed by direct dischargers comp l ying 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 p ercentPretreatment 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 (5 th Cir. 1989) (providing judicial approval of this pass through analysis used in OCPSF pretreatment standards rule)

. Thus, contr ary 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 discharg ers in the industrial category

. Where the technology basis for dir ect dischargers achieves removal at some above

zero 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.
Wit h 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 i n 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 ind icate 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) iss ued 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

. Rath er, EPA specifically found that POTWs cannot achieve pollutant removals equivalent to zero discharge technologies; a nd 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.

CommentsPretreatment 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 w hat 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

- throu gh 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 pretreatme nt 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 throu gh analysis

. EPA did in fact examin e 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 pretreatm ent limit. ” Rather, EPA would need to first demonstrate that the pollutants would cause pass through (bas ed 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 disagree s 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 leve ls 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 (5 th 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 (9 th 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 (4 th Cir. 1979)(Receiving water quality is no t a basis for setting BPT effluent limitations; Weyerhaeuser Co. v. Costle , 59 0 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 o f 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) )

.

CommentsPretreatment 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 remov al 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 tre atment 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 pass

through 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

- Effluent

Guidelines

- 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 impermis sible 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 extrac tion 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 tha t 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 anal ysis, 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

- c onventional 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 regulati on 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 extract ion 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 U OG 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 potenti ally set limits in a particular effluent guideline or pretreatment standard

. Wh ere, 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 polluta nts 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 effluen t,” 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 bas i s for direct dischargers in this category

. See also Response 1

- M

. EPA fu r ther 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 cre dits for such POTW removals

. See Response 1

- F ; Response 4

- G

. EPA disagrees w ith the commenter’s suggestion that TDS was somehow not an appropriate pollutant to analyze for purpose s 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 d efined...”); U.S. v. Hamel (noting that the definition is set f

orth in “broad generic terms”). TDS fits easily into this broad definit ion of pollutant under the CWA. TDS is also a collective measurement of its individual constituent pollutants

. In the case o f 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 chl orides, 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 poll utants , a nd 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

- conve ntional 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 reg ulate 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 t he 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 est ablish 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 CW A

.

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. Furthe r, 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 zer o
- discharge is 100% effective at removing TDS and any otherPretreatment 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 e valuated 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 exceedance s of a POTWs water qual ity based effluent limits ( WQBELs ) , EPA disagrees with this comment. As discussed in Response 1

- N , in establishing technology

- based pretreatment stan dards, 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 pretreat ment 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 caus e 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

.

CommentsPretreatment 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 variabl e 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 spec ific 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 i dentify 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. Co nsistent 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 Prel iminary 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 over

inclusive. In defining the pollutants of concern through the undefined phrase “al l 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 dispo sal 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 throu gh 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 significant ly 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 .

CommentsPretreatment 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 Sec tion 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 f ormation (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 unifo rmly 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 a pplicable 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, C ategorical 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 measu ring 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 downPretreatment 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 iden tified 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

- prior ity” 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 “Nonconvent ional 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 qua lity criteria.39
33 http://water.epa.gov/scitech/swguidance/standards/handbook/chapter01.cfm (accessed 6/29/15). 34 Introduction to the National Pretreatment Progr am; 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 Pret reatment 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 thr ough methodology” for determining whether pretreatment standards are appropriate

. To the extent that the commenter is arguing tha t 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 polluta nts 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 techn ologies in assessing BAT / BADCT for purposes of establishing the pretreatment standards in the final rule

. See TDD Section 3.1.2; andPretreatment 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”) b ecause, 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 t reatment 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 r equirements

.

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, evalu ating 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 standar d.
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 sectio n 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 pretreatmen t 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 disc hargers) 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 discharg ers 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 techn ology

- 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 well s 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 availabili ty 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)

– anoth er available option for meeting the zero disc harge 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 in appropriate 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 practi ces 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. Te chnologies 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 tre at pollutants in the wastewater. S ee 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 Demonstratio n 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 pretreatm ent 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 m atter 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 en ergy 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 develop ment 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 ofPretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

34 the factors that may have contributed to the current industry pra ctice, 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 , economically

achievable , and has no increment al 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 wou ld 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 charact erization, these facilities are considered to be “indirect dischargers”

– defined in EPA’s regulations as “a non

- domestic discharger int roducing pollutants to a publicly owned treatment works

. ” 40 CFR 122.2(emphasis added )

. See also CWA Section 307 (requir ing 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 , ho w ev e r, available to such faciliti e s 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 pretreatmen t bans.” As discussed in Response 1

- A above, i nPretreatment 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 wo uld 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 othe r 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 pretre atment standard at a level other than zero
- discharge, based on it s 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 pu rposes 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 trea t pollutants in the wastewater. S ee 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 Ag ency 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 r eceive a pretreatment ban.
Response 1
- J J EPA dis agrees with the commenter’s suggestion that the zero discharge requirement in this final rule was based simply on industry’s ability to meet the existin g 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 factor s 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 i n greaterPretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

36 removals of pollutants of concern over a nu merical 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 und er 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, imple menting 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 disc hargers. S ee 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 floodin g
. 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 Doc ument 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 futur e management of this wastewater. S ee 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 iden tified 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 ava ilable to operators in the future, due to constraints on the future availability of zero

- discharge wastewater management alternatives used currently, see ResponsePretreatment 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 , explainin g why EPA reasonably determined that such zero discharge options were “best” within the meanin g 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 wastewat er, 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 Subc ategory 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 ha ve established a numerical standard, see Response 1

- BB

. With respect to the commenter’s suggestion that the zero discharge requirements fail to reflect future capaci ty issues, see Response 3

- D

.

CommentsPretreatment 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 produce rs 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 establi shed a numerical non

zero standard, see Response 1

- BB

. EPA recognizes that there may be some situations in which UIC is not readily available to a particular discharge r, and notes that UIC is not the only technology option for meeting the zero discharge requirements

. O ther management practices are available, including recycling and reuse, and transfer to CWT facilitie s
.

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 I I 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 th at 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 facilitie s, EPA notes that such comment is outside the scope of this rulemaking.

Comments
EPA
- HQ
- OW
- 2014
- 0598
- 0951 (IPAA pg 11) Conseq uently, 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 standardsPretreatment 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 bas ed 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 cons equences 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

- J J

. 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 ind ustry 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 thatPretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

41 “the only reasonable alternative [to inj ection] 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 wastew ater 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 beca use 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 thi s 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 th rough analysis), indicating that a pretreatment sta ndard 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 comm enter 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, reu se /recycling , and sending wastewater to CWT facilitie s; 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 E PA disagrees with the commenter’s suggestion that EPA erred in considering existing industry practice of not sending wastewater to POTWs in establ ishing 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 accou nt, 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 S ec tion V I .B. 1 and V I .B.2 that because industry is currently meeting the zero di scharge requirements established in this rule, and thus, the rule would simply maintain current industry practice, there would be no incremental non

- water quality environmental im pacts 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 E LGs

. 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

- us ing waste water 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 a nd 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 acceptin g 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 Penns ylvania 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 consid er 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 conjun ction 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 wh ether 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 disc harge, and that the final rule would simply codify that existing practice, EPA reasonabl y 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 tha t 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
- H Q
- 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 percen tage 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 well

operated POTW, which i s 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 discharg ing 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

- Effluent

Guidelines

- 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 trea tment 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, E PA considered the available technologies and det ermined that the technology basis for purp oses 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 remo vals 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 rul e.

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 chang e 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 creat ing 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 5 0% 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 otherwis e 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/glob al

- 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_H arto_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 serv e the energy

water nexus. Response 1
- EEE See Response 1

- DDD

.

E PA’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 indus try 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 E PA 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 bes t 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 st ate 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 e ffect from April 19 th , 2011 when PA DEP announced its request

– EPA notes that this ban pre

- dated EPA’s proposed regulatory action , and was an action tak en by the state and not by EPA

. T hus , it is not appropriate to consider any costs to UOG facilities ass ociated 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 fin ding 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 alt ernative options considered either. In fact, the only cost estimated in the entire proposed rule and 175

- page TDD was a n 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 “deter mines 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.” 11 0 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 econ omically 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 wastewa ter (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 f

acilities. 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 pe rforming 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 c ost 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 4 0 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

- iii

costs

- 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

. T he 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 zeroPretreatment 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 th e 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 POTW s , 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 (5 th 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 w eight to EPA’s ‘presumption of regularity,” suggesting as it does that reinjection w as 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 requ ir ed 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 n ew sources
. No cost

benefit 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 (3 rd 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 numeric al 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 t his 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 ha ve 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)). A ny option that would allow for a dischar ge 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 a vailability and e conomic 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 meanin g 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 E PA 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 pream ble, 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, resour ce
- 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. I t is beneficial to the states as a p ractical 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 st ates 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 ou t of context. When EPA describes control authorities and POTWs as ‘resource

constrained , ’ it is stating that the burden of ‘having to evaluate whether to accept transfers of was tewater on a case

- by

- case basis’ would further harm the resource
- constrained control authorit ies 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 t he 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 wastew ater 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 ac cept t he 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 interest s 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 o f 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 e xtraction (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 pric es, 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 sta ndard 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 benef its to PO T Ws , 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 determine d that a facility can afford a tec hnology 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 low er 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 d ischarge 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 acti ons. 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 well

documented and reflected in the Agency’s May 12, 2011 letter to Secretary Krancer, EPA’s February 1, 2013 warning letter to POTWs, and it enforceme nt 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 a s 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 hadPretreatment 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 c omparing 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 zer o 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 wo uld 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 Michae l Krancer fr om Region 3, has been mis characterized 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 d elivering 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 o f 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 “Februar y 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 o n to quote existing 40 CFR Part 122.42(b) regulation language aboutPretreatment 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 introd uced into that POTW...” Contrary to the commenter ’ s characterization that EPA wa s 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 wa s citing existing authority and requirements under the Clean Water Act. Third, this letter was written over a year after the April 19 th , 2011 , announcement from PADEP requesting a voluntary ban. T he 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, t he fact that ALL facilities within this i ndustry ha ve been able to meet zero discharge to POTWs ( whether that approach was required or voluntary) demonstrates that it is e conomically 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.

R esponse 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 I MPLEMENTATION 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 imp ortant 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 stud y, 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 wa ste, 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 s ubject 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 CW T 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 c ommenter is mistaken in stating that EPA is likely to soon propose standa rds for CWT facilitie s 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, thi s rule does not apply to CWT facilities and does not in any way restrict a CWT facilit y’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 abil ity of these facilities to send their wastewater to CWT facilitie s
. This rule affects only their ability to send their wastewater to POTWs

– and a s stated in the preamble and elsewhere inPretreatment 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 wastew aters, 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, reg ulators, 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 th is 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 c ommenter 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 facilitie s, 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 CW T facilities that accept oil and gas extraction wastewaters (including unconventional oil and gas extraction wastewaters) for further stud y in the final 2014 Effluent Guidelines Program Plan (see EPA

- 821

- R

- 15

- 0 02 ). 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 impr oper 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
- BPretreatment 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 p ublishing 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

- effic ient 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 centra lized 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 pretrea t 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 o ther 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 f rom 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 fro m 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 holisti c 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
- CPretreatment 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 the n 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 agre e 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 w astewater from unconventional oil and gas extraction activi ties

. See Response 1

- FFF

. Industry has not provided any specific comments that have changed EPA’s understand ing 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 explain ed in the preamble, while the vast majority of wastewater is managed by disposal in underground injection wells and/or re

use in fracturing another well, a small, but in some geographic areas increasing, portion of the UOG extraction industry currently tra nsfers 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 futu re 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 faci lities. Moreover, EPA is not evaluating any approaches that would restrict their availability to accept such wastewaters as part of that study

.

Use of C entralized W aste T reatment Facilities Comments
EPA
- HQ
- OW
- 2014
- 0598
- 0953 (API pg 38) CWTs Are an Essential Component of Wastewater Management and Their Use Should be PromotedPretreatment 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:
T hey 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 supp ly 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 produ ced 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 scenar io 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 assoc iated improved safety and reduction of highway maintenancePretreatment 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 Te xas 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 c ommenter points out several advantages of utilizing CWT facilitie s 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 facilitie s to accept oil and gas extraction wastewate rs and discharge those wastewaters directly to waters of the U.S. or indirectly to POTWs.

CommentsPretreatment 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 Treatmen t 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 pl ants (such as CWT facilitie s) 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 facilitie s 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 uncon ventional 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 tr eatment 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 som e 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 burden ed 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 wastew aters, 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 ac hievable 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 tha t 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 sing le 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. Promulga ting 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 facilitie s
. EPA’s analysis supporting the final rule is legally sufficient. See the preamble to the final rule for a description of EPA’s consid eration of the factors required under the Clean Water Act and various statutory and executive order reviews. S ee 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 E LG.
Response 2
- HPretreatment 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 conduc ted 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 technolo gy 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 arbitra r y and capricious or that it will have unanticipated and unfortunate consequences

. The c ommenter provided no examples of where previously promulgated zero discharge pretreatment standards have provide d 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 n ot 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 pretrea tment standards are appropriate forPretreatment 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 a s 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 warrant s 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. R ather, 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 expla ined 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 UOGPretreatment 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 cu rrent 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 dis charges when they did occur.Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

66 

### 3.0 D ATA 

### U SED TO 

### S UPPORT THE 

### R ULE 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 da ta 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 Sect ion 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 T DD 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 D

4]

.  Number of CWT facilitie s accepting or that plan to accept UOG waste water 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 commentPretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

67 on this finding

. Significantly , no comment er s 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 p roducers 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 wast ewaters

. S ee 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 92 3, 934 (5 th Cir. 1998) ( Upholding EPA’s use in an effluent guidelines rulemaking for oil and gas facilities of info rmation about older facilities to represent pre

- 1980 wells

. An agency’s choice to proceed on the basis of ‘imperfect information’ is not arb itrary 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 (9 th 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 o f 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, an d an even more limited view of POTWs . The data collected in the CWT study is very likely to c ontain information relevant to the present rulemaking (including additional information on the feasibility of treating pollutants associated with produced water) a nd 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 representat ive 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 relie s 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 ch aracterization data, as described in the TDD (see DCN SGE 01188)

. New characterization data includes updated data from the United State Geologic al Survey ( USGS ) National Produced Waters Geochemical Database which primarily consisted of additional tight oil and gas produced waterPretreatment 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 3 5 UOG formations in 25 basins across the country. These data indicate that wastewaters from unconventional oil and gas formations contain a variety of p ollutants, 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 facilitie s portrays a very limited snapshot of the CWT industry

. While this rule does not apply to discharges from CWT facilities, EPA colle cted 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 collect ed data on a number of CWT facilitie s 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, p rod ucers 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 disc harge 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 s tandards 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 ta ckle 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 r euse/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

. D ata in the record indicates that the costs of wastewater management at CWT facilitie s (not including transportation) range from $ 2.20 to $11 per barrel ( see DCN SGE 01186 )

.

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 l imited 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 tem poral 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 i s 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 stand ards, 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 UO G 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 wastewater s across basins, and that characteristics of wastewaters can vary over time from a give n 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 ba sin to establish that UOG wastewaters contain pollutants, such as TDS, that are not amenable to treatment at POTWs because EP A’s record reflects that POTWs do not have technology in place to remove TDS , regardless of the level present

. The data in the record demonstrate s 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 ha d accepted UOG wastewaters , and pollutants passed t hrough 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 disc ussion 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 ef fective 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 neve r 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 wate r 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.2 1

– by st ating: 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 disposa l 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 pana cea
. 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 p roduction

- 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 t he 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 dev eloping 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 presen ts 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

. Thes e 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

. Aqui fers 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

. Eff orts 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.
Cons equently, 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, Mar ch 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 neithe r of these are requisite statutory factors for assessing BAT/ BADCT

. Rather, EPA considered the statutorily

- specified factors inclu ding 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 t hat the commenter is suggesting that EPA failed to sup port its finding regarding availability of zero discharge practices, given the commenter’s assertions regarding limitations on UIC capacity, EPA notes that t here 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 c ommenter notes that, for example, options for i njection may be limited in Pennsylvania and West Virginia. EPA also acknowledges that the capacity for reuse in subsequent well development can vary over time andPretreatment 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 facilitie s, 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 i ndustry 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 c ommenter 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 com plete assessment of UIC capacity. Rather, these notes summarize information provided by stakeholders describing their experience with specific UOG wastewater management practices. EPA’s discuss ion 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 c ommenter states that EPA’s notes from this meeting emphasize the limitations in certain areas regarding the a vailability 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 av ailable. A s stated earlier operators can and do utilize other wastewater management practices (such as CWT facilitie s, 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 c ommenter 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 otherwi se , it is reasonable for EPA to conclude that disposal in Class II disposal wells will continue to be available in the future.
The c ommenter 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 c ommenter 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 occurr ing 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 Cl ass II disposal wells is still available for managingPretreatment 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 U OG 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 m eet a zero d ischarge 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 dispo sal 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 suggest s 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 ( s ee 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 me antime, t he 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 c ommenter 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 wa stewater 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 c ommenter states that recycling/reuse may have limitations in cer tain cases. The c ommenter’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 w astewater 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 greate r distance from the UOG well). The c ommenter has provided no data that would i nd icat e that these other practices are not currently available or will not continue to be available in the future , or that would contradict EPA’sPretreatment 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 c ommenter 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 th e 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. Co mmenter 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 ma y 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 c ommenter 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 t he 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

. I n summary , the commenter has taken a very narrow approach to evaluating UOG wastewater management practices that are available to the industry . The c ommenter has selected two pre v a l ent 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 c ommenter 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 frac turing, increased availability of CWT facilitie s, 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 standar d 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 som e areas. And, Table XII

2 indicates that TDS concentration in produced waters range as low as 20 mg/L. Whereas TablePretreatment 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 th at 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 fo r 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 c ommenter 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 diss olved solids risk , EPA disagrees

. First, EPA notes that effluent guidelines and pretreatment standards are technology

based , not risk

- based

. Th at 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, whi le 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, a nd is available , economically achievable and has no incremental and therefore no un acceptable non

- water quality environmental impacts

. See Section I V

. 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 infeas ible.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 d ata 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 addi tional information on pollutants presents in UOG wastewaters. Also s ee 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 f inal 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 o f 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 enou gh 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.89Pretreatment 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. Geo logical 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 dr illing wastewater indicate even lower TDS concentrations

– 27% of samples had TDS concentrations of 3,200 mg/L or less.93 90 ht tp://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 S GE00740.
Response 3
- GPretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

78 The c ommenter 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 unde rmine 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 s olids 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 reason ably concluded that TDS and other pollutants of concern in UOG wastewater pass through POTWs untreated

. See Section V I

. 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 achi eved 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 reg ional 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 U IC well availab ility 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 sub categorize to reflect variations in UIC well availability or exploration and production activity, as these factors did not affect the availabilityPretreatment 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 U IC 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 unconvention al 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 necessar y 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 S ection 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 indicate s 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), wh ose membership includes POTWs nationwide, expressed support for the rule in their comments

. See EPA

- HQ

- OW

- 2014

- 0598

- 1054

. The c ommenter 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 TD D and preamble, while POTW disposal may have been the least

- cost ly option available at that time , all producers (regardless of local UIC availability) have since stopped discharg ing theirPretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

80 UOG wastewaters to POTWs, thus demonstrat ing 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 a s suggested by the commenter)

. Also See Response 1

- BB , Response 1

- PP , and Response 1

- GGG

. The c ommenter 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 agree s 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 disch arge 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 facilitie s as those options are currently available

. Further more, 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 w as not carefully considered. EPA has evaluated a ll 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 PlaysPretreatment 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 als o 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 per mitting 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 wastewater s can increase the concentration of pollutants such as ammonia and methanol in wastewater s 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 t he 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 c ommenter suggests that this variability is also an important consideration with respect to permitting fo r “ 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.

U nderground I njection C ontrol 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 a vailability 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 andPretreatment 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 approv als of water disposal wells,12 controversial local bans on water disposal wells,13 the shutting down of disposal wells,14 and calls fo r 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 disc harge. 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 in creased 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.frackin ginsider.com/legislative/hydraulic

- fracturing

- state

regulatory

- 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

- over
waste

- 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

- township

claims

- 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/okla homa/2015/05/28/plug

- back

- or
- prove
it

- 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

- federal

review

- of

- ohio

- injection

- well

- program/.
Response 3
- L The c ommenter suggests that if use of disposal wells become restricted i n 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 wellPretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

83 The c ommenter states that disposal wells are not available nationwide. EP A 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 pa rticular well may vary.
The c ommenter states UIC wells are not available in all geographic areas such as in P ennsylvania . 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 c ommenter 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 w ells 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 thei r availabilit y 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 facilitie s as new ones are constructed, and increased efficiency in prod ucers 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 th e future does not alter the availability of the PSES/PSNS technology basis of the final rule.
The c ommenter states that it is inappropriate for EPA to presume that UIC well capacity will always be widely available to the industry without a critical exami nation of UIC will capacity. EPA has conducted an analysis of UIC w e ll 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 sho ws 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 count ry 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 significantl y over the same period. These d ata 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 paragraph s there are a number of factors that may either increase or decrease th e 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 willPretreatment 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 PO TWs , 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 S ee Response 3

- L

.

Comments
EPA
- HQ
- OW
- 2014
- 0598
- 0951 (IPAA pg 4) The increase in disposal wells over the past several years has l ed 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 a bility to site and use disposal technologies

– no matter how historically beneficial their record may be. Response 3
- N S ee 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 consu med 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 WaterPretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

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 dat a 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 begi nning 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 p ermits 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 rigo r that should be applied

. Consequently, it skews the decision toward a zero discharge conclusion without justification.
Response 3
- O The c ommenter 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 c ommenter notes that data from the Ground Water Protect ion Council ( GWPC ) indicates that the percent of produced water disposed of via injection in creased between 2007 and 2012. The c ommenter also notes that the number of injection wells has increased in Oklahoma and Kansas since 2005. The c ommenter states tha t 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 sho ws 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. Th is 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 fu ture

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

86 S ee 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," o ther 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 d etermination 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 invalid ate 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 s ubcategorize 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 require ments, irrespective of regional variations in disposal options . See Response 3

- H

.

Comments
E PA
- HQ
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- 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 part icular 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 a ny 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. 10Pretreatment 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
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- 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 addr ess 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. Thu s 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] re gion. This supports EPA’s PSES/PSNS technology basis for the final rule. EPA notes that Pennsylvania has a number of CWT facilitie s. CWT facilitie s 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 c auses 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 s altwater 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 E PA 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 the re is litigatio n 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 suggest s 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 i f 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
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- 2014
- 0598
- 0953 (API pg 7) UIC disposal (which is not a treatment technology)

EPA
- HQ
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- 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 commente r is arguing that the technology bases for the zero discharge requirements do not constit ute “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 pol lutants 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
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- 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 requ ires 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

– a ny 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 co mmenter 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 S afe D rinking W ater A ct instead of the C lean W ater A ct

– as this doesn’t change t he 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 P ublicly O wned T reatment W ork s Comments
EPA
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- 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 pe rmits. 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 arePretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

90 technology

- based requirements and this final rule r eflects a consideration of the factors specified in the CWA for such requirements.

Comments
EPA
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- 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 Suppor t 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, whe re 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 stat e. The US total surface discharge volume for 2012 was 1,121,045,000 barrels.3 This number does n ot differentiate between direct and indirect discharges, but provides insight into the volume of water that is being discharged into water bodies generally acro ss 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 spe cific to UOG.

Comments
EPA
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- 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 pre

treatment methods. For example, Kwon et al. reported on the use of a surfactant

- modified zeolitePretreatment 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 impro ve 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 p roduced 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 dioxi de 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 Sys tem 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 S ludge,” Chemosphere 75, no. 8 (May 2009): 1028

‐ 1034, http://www.sciencedirect.com/science/article/pii/S0045653509000824; Barry G. Oliver and Ernest G. Cosgrove, “The E fficiency of Heavy Metal Removal by a Conventional Activated Sludge Treatment Plant,” Water Research 8, no. 11 (November 1974): 869

‐ 874, http://www.sciencedirect.com/scien ce/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

.

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

92 EPA
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- 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 Pennsy lvania 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 pa st.

Comments
EPA
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- 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 t he 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 no t 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 (D CN 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 wel ls 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 frac turing 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 ou tside 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
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- 0598
- 0937 (CUNY pg 5) While the extent of wastes sent to POTWs is not well documented. The practice has been used in the Marcel lus 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 di scharged 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 , althou gh 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
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- 099 7 (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 (sludg e)

. 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
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- 2014
- 0598
- 1010 (H ZEHNAL pg 1) The fracking wastewater in the rivers in PA was studied by Duke University researchers and they found ca ncer causing radioactive materials that came up during the fracking process outside the wastewater treatment pl ants 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 wastew aters, 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
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- 0598
- 1010 (H ZEHNAL pg 2) The fracking wastewater even ruined fac tory 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) ext raction 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 produc ers 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 thosePretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

95 wastewaters

. This further supports EPA’s de cision 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) crea ted 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 yea r, 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 thor ium 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 reveal ed 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 acknowled ges 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
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- 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 r eviewed 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 Practic es in 2012, Ground Water Protection Council, available at http://www.gwpc.org/sites/default/files/Produced%20Water%20Report%202014

- GWPC_0.pdf. 1 0 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 (avail able 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
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- 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 o f 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

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- 2014

- 0170]. EDF updated t his 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 andPretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

97 Chemical Abstract Service (CAS) numbers found in fract uring 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 Polluta nt 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 Marcellu s 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 conv entional 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 p roduction 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 Marc ellus 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
- KKPretreatment 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
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- 2014
- 0598
- 0957 (EDF pg 6) Pollutants and concentrations in wastewater generated f rom 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, particula rly 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 unconv entional 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., 201 3; 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 i n 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 radium

228) (Chapman et al., 2012; Rowan et al., 2011), and organic s (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 oi l 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 bo th 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 w hile the assessment includes information on both conventional and unconventional wells, the current rulemaking addresses wastewater from unconventional wells

. See Response 4

- N

.

Comments
EPA
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- 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 Shal e 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 tre at 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 influ ent 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 drinki ng 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 re moved 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 enrichmen t factor values of chloride and bromide in discharged effluent is critical to these drinking water plants and studies have shownPretreatment 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 th at 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 sh owed 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 trea t 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 scient ific 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, sedim ent 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, a t 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 exposur e 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 p ersistence 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 ph ysiochemical 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/es 5028184. 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 thePretreatment 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 Sup plies, 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, ENERGYI NDEPTH (Oct. 7, 2014, 5:05 PM), http://energyindepth.org/marcellus/report

- on
- fracking

- wastewater

- ignores

- standard

- proc edures

in

- 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 r egulators 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., D raft 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:1 0.1016/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 freshw ater 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 R adium, 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 a nd 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 Ma terials, 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, organi cs 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 prohibit ion on indirect discharges of pollutants in wastewaters from UOG facilities to POTWs in this final rule. EPA also agrees that a range ofPretreatment 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 radi um 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 o f additive chemicals utilized in well development and that there are gaps in knowledge surrounding the environmental fate of a range of pollutan ts 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
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- 0957 (EDF pg 13) Constituents Associated with Shale Wastewater Consolidated list of Nat ional Chemicals (January 2015)
Response 3
- NN EPA appreciates the list of constituents associated with shale wastewater provided by the commenter. T his 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 constit uents under consideration associated with shale wastewater provided by the commenter. T his information is included in the record.

Comments
EPA
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- 0977 (EIP pg 7) Produced water can also contain degradation products and byproducts from chemic al 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 greate r than the typical value reported in the literature. EPA notes that all additive s w ill be addressed by the zero discharge PSES and PSNS requirements in this final rule

.

Comments
EPA
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- 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 s ources 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 specificall y 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 tre atment 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 sy stems.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 a cute 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 chron ic 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 indu stry 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 hav e 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 In dependent 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., Biocid es 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., Th e 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

- standard

procedures

in

- 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 pro duced 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 rul e . EPA also agrees that sodium chloride can be toxic to freshwater organisms, as evidenced by the toxicity data provided by the commenter.

Comments
EPA
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- 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 CWTsPretreatment 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 re cognizes data showing increased bromide concentrations in surface waters receiving effluent from POTWs and CWT facilitie s receiving oil and gas wastewater. EPA has included this report in the record.

Comments
EPA
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- 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 effective ly 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 E PA’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.45Pretreatment 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. Richardso n 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 diox ide, 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 disinfect ant 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
Additio nally, 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 prom ote 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 fo r 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 sha le 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 sug gest 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. Richards on 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 generati on 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 (20 15). 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 app reciated additional data on iodinated DBPs in effluent from POTWs that accept oil and gas produced water

.

Comments
EPA
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- 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 permi ts 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 highe r 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/250355 91; 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,” Journ al 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://onlinelib rary.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 opera tors 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 reveale d 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 hazardou s 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 an d barium as stated by the commenter

.

Comments
EPA
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- 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 65 0 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 wate r 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, D OGGR 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, Environmen tal 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

- Poll uting Chemicals in Los Angeles Basin Neighborhoods (2014)
Response 3
- WW EPA agrees that constituents such as benzene can be found in produced waters . The c ommenter compares concentrations of these wast ewaters 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 o f 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 maintena nce 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 thatPretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

110 formaldehyde and methanol were among the dangerous chemical s 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 doe s 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 p acking 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
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- 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 q uake 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/wp

content/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 ne ar unconventional drilling operations: aPretreatment 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 r eserve 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 Healt h Policy 23.1 (2013): 117 135; 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 unconventio nal 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 in dustry (TENORM). Nukleonika. 2009;54:3

‐ 9.. See also United States Environmental Protection Agency. Oil and gas production wastes: Radiation protection. http://www.epa.gov/radiation/tenorm/oilandgas.html

. Accessed March 18, 2015; Conference on Radiation Control Program Directors. Regulation and licensing of technologically enhanced naturally occurring radioactivematerial (TENORM) part N of the suggested st ate regulations for control of radiation (SSRCR). Compare DeVol TA, Woodruff Jr RL. Uranium in hot water 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.

CommentsPretreatment 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 u p to 10,000 bpd (420,000 gallons) of flowback/produced wastewater daily. The facility p ermit 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 tw o 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 facilitie s 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 Ro ad 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 i n 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 appreciate s 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 facilitie s.

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

113 EPA
- HQ
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- 2014
- 0598
- 0997 (EUREKA pg 5) Methanol

- As described p reviously, 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 fr om 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 wastewate rs 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 technolo gy 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:
Pretreatme nt: 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 StoragePretreatment 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 Distil led 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 wastewate r 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 Res ponse 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 Monong ahela 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 R eproductive 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 Pri mary Source During 3rd and 4th Quarters of 200, PA DEP.
Response 3
- DDDPretreatment 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 unc onventional 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 t he 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 c ommenter mentions a 5 picocuries per liter limitation for radium. EPA notes that this is a Safe Drinking Water Act (SDWA) limitation for drin king 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 Pennsyl vania 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 ShalePretreatment 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 differe nt 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. A1 17)

. 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, rec ent 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 contro l (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 v ia 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.

CommentsPretreatment 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 br omide 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 De partment 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 als o 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 Diss olved 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 500 1000 undisclosed toxic chemicals like cancer causing 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 U O G 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 St andards 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 c ommenter. 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 abilit y 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; howev er, 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 f or new f racturin g 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 availabili ty 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 fractur ing 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 c ommenter 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 r eused. 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 b ut 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 impro ve 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 quanti fying avoided costs inPretreatment 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 r equired factor for consideration under CWA Section 304(b) or Section 306

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

121 

### 4.0 R

ATIONALE 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 tech nologies 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 T he new technologies have reduced operational problem s 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 off

er 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 D rinking 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 s tandard 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%

. H owever, 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 pollutant s

– 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
- wate r
- 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

- ze ro 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 remainin g TDS or other UOG pollutants, s ee 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 . S ee Response 1

- F ; Response 4

- G

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

122 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 standard s. 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 "i nhibit 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 was tewater 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 t echnology

- 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 opt ions 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. ” Rathe r, 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 appea rs to have determined that there are levels of pretreatment

- other than the zero pollutant discharge standard that applies to direct discharges

that are adequate to ensure that indirect discharges do not cause "pass through" or "interference." In its discus sion of centralized waste treatment facilities (CWTs), to which some UOG extraction wastewater is currently sent, EPA notes that some CWT facilities lawfully dischargePretreatment 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 Ind ustrial 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.

Res ponse 4
- C The c ommenter 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 note s 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 cons ideration of the requisite statutory factors

– including technological availability and economic achievability

– for th e 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/B A DCT factors on an industry

- by

industry 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 achie vable, 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 i n 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 SGE011 86

. 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, ther e may come a day when itPretreatment 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 sta tes 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 tech nology 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 obstacle s, 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 wit h 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 f

inding 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 des irable 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 comme rcial 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 W ESTERN G OVERNORS ’ A SSOCIATION , W ATER R ESOURCE M ANAGEMENT IN THE W EST , P OLICY R ESOLUTION 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 ena ble 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 f

or greater water security in the future

. Response 4
- D In response to the commenter’s notion that zero discharge will limit water availability, s ee Response 2

- L

. In response to the commenter ’ s suggestion that “ many ope rators embraced water recycling , ” EPA agrees that recycling is a viable option for meeting the zero discharge standard (see Section VI o f 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 sh ould 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 properl y 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 co mmenter 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, chloride s, 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 a re not designed to remove such pollutants

. See Response 1

- M

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

126 EPA agrees that TDS from UOG wastewater could have a negative effect on aquatic life

. See Preamble Sectio n 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 poll utants, 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 pr ocesses 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 was tewater ,” 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 environme ntal 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 develope d 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 pollu tants

. See Response 4

- G

. Finally, EPA remind s the commenter that EPA conducts a n annual review of pretreatment standards, as required by Section 304(g) of the Clean Wa ter Act , as reflected in its bi

- annual notice regarding its effluent guidelines planning process.Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

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 o f 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 requi rement 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 EP A 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. o f the preamble)

. See Response 1

- M

. E PA 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 efflu ent reduction available. ” Contrary to the commenter’s assertion, t he final rule does in fact identify the amountPretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

128 of pollutants that would be red uced 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 PO TW 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 cred its 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 tha t other regulatory requirements are met.
The c ommenter 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 vari ances. EPA disagrees. Clearly, Congress envisioned EPA would establish zero discharge requirements as this i s 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 th at 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 disc harging 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 fo r 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 var iances 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 anPretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

129 FDF variance, a s 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 requi rement 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 require ment

– 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 wa ter 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, ho wever, 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. Inde ed, 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 natur al 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 pr actice" 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 d oes 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, compa red 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 commenter s’ 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 c ommenter s fail to provide any additional specific information regarding why EPA’s understanding is “incomplete.” R ather , the commenter just provides a general statement that innovatio n 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 identifie d 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 commenter s’ concern that EPA should preserve flexibility, EPA notes that it did not set a man datory technology for the industry, instead it set a zero discharge standard (see Section I V of the preamble for background on BAT and pretreatment standards) , without mandating the specific technologies or management practices for how the industry meets t his 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 t he final rule does not require UOG facilities to dispose of their wastewater in underground injection wells and that the candidate technology bas e s include water management practices such as reuse/recycling in fracturing other wells , transfer to a CWT facility for treatment . Fur thermore, 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 managementPretreatment 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 O ver 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 th e 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 pu blic 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

- Managemen t)
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 pr oduced 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, recyc ling 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 onl y 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 vol ume are the most significant factors, the quality of the water can be important as well

. The same contaminants in waste waterPretreatment 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 conc entrations 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 recyclin g 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 zer o discharge conclusion.
Response 4
- I All comments under Section 4.4 “ Variability and Trends in Wastewater Management Strategies O ver Time ”, are addressed by the followin g 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 inf luence 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 facilitie s
. Although EPA recogni zes 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

. S ee 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 andPretreatment 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 interf

erence 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 f ound 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 n ot 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 facilitie s. S ee 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 De scribe 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 level s.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 optio ns 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 detec tion 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 throu gh” limitations as a level of protection retain little meaning. Unknown, undetectable, or otherwise undisclosed constituents in UOG (andPretreatment 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 barr ier 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 envir onment 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 disposa l.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 Resi dual 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 b ecause 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 h ad 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 n ew 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 o f 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 o therwise 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, passPretreatment 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 pre treatment 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 zero

discharge standard, EPA is taking into account the characteristics of UOG wastewater and the zero
- discharge standard for dire ct 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 subcatego ries 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 indirec t 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 conti nuing 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 th rough 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, kill ing fish and ot her 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 C ir. 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

136 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 ELG s 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
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- 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 zer o 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 Prog ram 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 prohibiti ons 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 regula tion is not adequate. No states require zeroPretreatment 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 o f 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 Propos ed 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
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- 0 598
- 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 tre atment 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.
Fracki ng 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 b een 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 do wnstream 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
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- 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 an d 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
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- 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 economi cally 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 a mount 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
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- 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
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- 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 produc tion. This approach provides certainty to oil and gas drilling companies, includes no added cost burden and is in step with evolving industry practices.
EPA
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- 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 uncon trolled overflow conditions if the volume or timing of produced water treatment is not adequately managed.
EPA
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- 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 sh ale 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 untreat ed 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 toPretreatment 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 th at 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 capacit y 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 ga s 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 ha rmful 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 ra dioactive 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
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- 0598
- 0968 (WA pg 8) EPA has the legal authority to set the instant rule’s “no discha rge” 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 stat es 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 wast ewater, 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.

EP A
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- 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 9 5 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 r obust 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 ex tremely important step in maintaining public health and safety.

EPA
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- 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 So urce 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
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- 0769 (POHLY pg 1) I s trongly 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 Work s 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 i s 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
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- 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 was tewater discharges to POTWs.
EPA
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- 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 t reat 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
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- 0818 (GRINDLEY pg 1) This is something that NEEDS to be Extremely and Ultimately Separated from ALL WATER TREATMENT PLANTS in AMER ICA UNEQUEVICALLY AND WITH NO ACCEPTIONS OR UNETHICAL LOOPHOLES
EPA
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- 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 desig ned 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
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- 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
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- 0598
- 0952 (C LISH pg 1) I strongly support Environmental Protection Agency's proposal to update and strengthen the Clean Water Act's Efflu ent 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 o f unconventional oil and gas wastewater to Publicly Owned Treatment Works is the most commonsense policy.

EPA
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- 0598
- 1054 (NACWA pg 1) NACWA supports the proposed prohibition of indirect discharges to publicly owned treatment works (POTWs)

. In ad dition, 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
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- 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 procl aims 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
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- 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 lim its. 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 an d a well

- supported and environmentally protective risk management decision.

EPA
- HQ
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- 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 per mit 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 potentia l 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 di scharge 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 characte rize 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 un knowns. 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 PO TWs.

EPA
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- 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 hig h volumes of wastewater produced by the oil and gas industry28 andPretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

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 d ischarge. 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
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- 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 tha t unmonitored and inadequately regulated discharges pose unquestionable risks to human and ecosystem health. Any pass

through or incomplete treatment of UOG wastewater

- associated pollutants at POTWs has the potential to cause serious, long

- term negative e nvironmental effects.
EPA
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- 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
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- 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 No tice of Proposed Regulation, POTWs are not equipped to treat oil and gas wastewater, even if they did know all of the constituents.
EPA
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- 0598
- 0976 (CBD pg 4) As such, POTWs are not equipped to treat wastewater from the oil and gas industry, and t he EPA should prohibit wastewater from the oil and gas industry from being treated at POTWs.

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

144 since it does know what chemicals need to be removed. The public cannot be adequately assured of the safety o f treated water if it does not know what chemicals might remain in the water.
EPA
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- 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
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- 2014
- 0598
- 0974 (CBF pg 1) Wastewater from u nconventional 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 ma ny 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 th e 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
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- 0598
- 0957 (E DF 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 requ irements 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 s tudy, 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 o f 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),availab le 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
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- 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 pollu tants. 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 traditionalPretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

145 treatment process but the concentration of these previously absent and potentially toxic materials in the residual solids may adversely impact sludge management and dispos al 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, treatmen t 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. T herefore, we encourage EPA to consider pursuing a future rule to address conventional discharges and fill this gap.

EPA
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- 0598
- 0937 (CUNY pg 6) First, the pretreatment regulations should clearly specify that TENORM is a regulated pollutant requir ing 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, Nat ural Gas Plays in the Marcellus Shale: Challenges and Poten tial 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
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- 2014
- 0598
- 0970 (PRINGLE pg 1) We strongly support the proposed rule which would better protect public health, the environ ment, 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 onsho re 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 beca use 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 byp roducts at downstream drinking water treatment plants. These harmful pollutants have the potential to slip through water treatment processes and threaten water qual ity and drinking water sources.1Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

146 1 U.S. Environmental Protection Agency. Assessment of the P otential Impacts of Hydraulic Fracturing for Oil and Gas on Drinking Water Resources (External Review Draft)

- EPA/600/R

15/047 (PDF) p 429, 8

- 33.

EPA
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- 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
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- 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 fe deral 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
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- 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
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- 0958 (CAPOZZELLI pg 1) Municipal sewage treatment plants lack the ability to treat toxic oil and gas wastewater, a nd 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
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- 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 sign ificant 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 treatm ent 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 i s 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 toPretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

147 protect our drinking water sources, it seems obvious that high volume fracking should be sh ut down until a safer way to frack is found.
EPA
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- 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
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- 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 exp osed 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
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- 0952 (C LISH pg 1) Hydraulic fracturing uses a wide range of toxic chemicals th at 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 hydr aulic 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 dri nking 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, an d is in step with evolving industry practices.

EPA
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- 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
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- 0814 (MARIAN SZMYD pg 1) The EPA's proposed wastewater discharge rule s for the oil and gas industry are essential to protect all citizens of the Commonwealth of PA.
EPA
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- 0817 (PIETRO POGGI pg 1) I agree that prohibiting discharge of unconventional oil and gas wastewater to Publicly Owned Treatment Works is c ommon 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 thesePretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

148 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
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- 0820 (SHAW pg 1) Fracking wastewater is a toxic cocktail c ontaining 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
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- 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 ne cessary to fill a gap in federal regulations and to reflect new realities of oil and gas production.”
EPA
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- 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 coura geous 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 ul timately back into drinking water.
EPA
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- 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 uncertaint y" to the situation.
EPA
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- 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 perPretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

149 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 n ot 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 tre atment 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 regulatio ns 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
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- 0923 (GROSS pg 1) The frackin g 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 wastew ater to Publicly Owned Treatment Plants.
EPA
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- 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 was te 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 a nyway. We may realize, but that will be when the damage has at least begun.
EPA
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- 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 dispos al 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
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- 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
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- 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.Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

150 EPA
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- 0945 (SLAB E 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 poisoni ng 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
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- 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
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- 0947 (ANONYMOUS pg 1) We need to be protected against the har m 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 non

existent they cannot be allowed to continue to pollute our air and water .
EPA
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- 0963 (ANONY MOUS 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
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- 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
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- 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
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- 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
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- 0979 (BOROWIE C 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 im portant.Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

151 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.
EP A
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- 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
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- 0981 (ARNOLD pg 1) I would strongly u rge 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 uran ium, 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 fr acking, 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 PO TW'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
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- 0982 (HAIMOWITZ pg 1) I am a licensed professio nal 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 commonse nse 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
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- 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 AL L contamination of our precious drinking water.
EPA
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- 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 allowedPretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

152 because these plants cannot handle the harmful contaminants. These po llutants 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
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- 1007 (SCHWEITZER pg 1) Oil and gas dril ling 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 wa ter and should ban this type of wastewater disposal. The Clean Water Act's Effluent Limitations and Guidelines should be updated to reflect this
EPA
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- 1023 (GRINBERGS pg 1) Among other issues, we're concerned about potential toxics, carcinog ens, 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 treatm ent 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
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- 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
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- 1034 (DUFF pg 1) I strongly support EPA’s proposal to update the Clean Water Act’s Effluent Limitations and Guidelines to prohibit discharge s 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 wil l 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.Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

153 Response 4
- K All comments under Section 4.6 “ Support for the Rule or De scribe 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 commenter s 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 b urden 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 S GE00762; 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 produ cers 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 re cord 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 pollu tants 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 n otes is outside the scope of the final rule. EPA agrees with the commenter s 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 an d 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

154 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 e xtraction 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 specif ic 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 P OTWs. For the commenter that suggests EPA to “forbid the introduction of shale gas wastewater to POTWs alt ogether ,” a lthough EPA acknowledges the overall point of the commenter to support the scope of the rulemaking, EPA clarifies that the final pretreatm ent 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 desir able

. 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 . H owever, to the extent that the comment er 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 in tended 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 (3 rd 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 dis chargers 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 a nd indirect discharge differ for the same industry category. EPA agrees with the commenter that, based on the pass through a nalysis and application of BAT/ BADCT factors here, EPA appropriately established pretreatment standards for indirect dischargers tha t are the same as the BPT zero discharge requirements applicable to direct dischargers in the category

. S ee Response 1

- H ; Response 1

- F ; Response 1

- C

. Regarding Pennsylvania’s numeric TDS pretreatment limit, s ee Response 4

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

155 EPA notes that several commenters indicated that some oil and gas operators “have sent” their w astewater to POTWs

. EPA is assuming that these commenters are referring to past p ractice 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 acknowle dges 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 analyse s 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 technolog ies used by POTWs have limited effectiveness for treatment of certain constituents present in U O G wastewaters . See Response 1

- C ; Response 1

- F ; Response 1

- M ; Response 1

- P ; Response 2

- F

. With respect to the comment r egarding the need to protect d rinking w ater 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 wastewa ter discharges to POTWs, see Response 3

- KK and Response 4

- N

. In addition, regulations for privately owned t reatment facilities ( such as CWT facilities) are outside the scope of this rulemak ing , see Response 6

- C

. Similarly, the comment regarding protections against air impac ts associated with hydraulic fracturing is outside the scope of this rule ; a s 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 unconventi onal (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 pretr eatment 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. Pena lties 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 approvedPretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

156 pretreatment programs

. Therefore, the comments regardin g 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 un der RCRA a s 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 regula ting the process of hydraulic fracturing and therefore this comment is not relevant to this rulemaking

.
Support for the rule: Drinking Water Protection Comments
EPA
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- 0977 (EIP pg 16) Source Water Protection is a key part of the “multi

- barr ier” 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 co mmon 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 P rotection, 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
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- 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, a nd 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): 9971 9972; 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. Vo l. 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 Penn sylvania." Environmental science & technology 47.20 (2013): 11849

- 11857; Ziemkiewicz, Paul F. "Characterization of liquid waste streams from shale gas development." AG H Drilling, Oil, Gas 30 (2013).
EPA
- HQ
- OW
- 2014
- 0598
- 0943 (AWWA pg 1) Given that using oth er 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 facilities 5 , AWWA supports this pr oposed 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
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- 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 Wa ter 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 t echniques 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 thisPretreatment 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 designe d 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 p reamble 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 vi able 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 technol ogy will not allow for the safe discharge of these wastewaters. And yet, USEPA's Proposed Rule would seem to dis

incentivize 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 indiv idual POTWs.
EPA
- HQ
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- 2014
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- 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 w astewater 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 Und erground 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 goa l could be more easily accomplished through the National Pollutant Discharge Elimination System (NPDES) permitting process by prohibitingPretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

159 POTWs from discharging the relevant pollutants into United States waterways, and thus preventing POTWs that are not eq uipped 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 disposa l 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 suc h 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
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- 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 wit h 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 des igned 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 physic ally, 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 pro blems 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 POT Ws 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 metho d 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 poll utants 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

160 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 non
water

- quality environmental impacts, do not present a barrier to entry for new sources, and help further the zero discharge goal s 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 wastew ater 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 positio n of having to evaluate whether to accept transfers of wastewater on a case
- by

- case basis . I t 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 stat e 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 SGE007 43).
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

- f racturing 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 acce pt 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 det ermination 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 burd en 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 POTW s 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 adminis trative 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 requ iring 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 promulga ting newPretreatment 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 s ome waters were impaired by TDS (DCN SGE00187). Thus, t o avoid future scenarios where POTWs receive UOG extraction wastewater, it is reasona ble 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 t his 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
- 082 0 (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

162 EPA
- HQ
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- 2014
- 0598
- 0844 (SLATE pg 1) Of course the EPA should include coalbed methane production in updated rules to develop similar pollution protection s 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 AL L 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 deve lop protections against all oil a n d 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 t hat 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, s ee Response 5

- A and Response 6

- D

.
Subcategor ization Comments
EPA
- HQ
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- 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 OnshorePretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

163 Subcategory ELG

. If EPA believes it is somehow constrained by those outdated determinations, it would be better served to create a new Subcateg ory. 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 appl icable 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 con cludes 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 dire ct 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 requir ements," 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 a re 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.1 5 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 “ Subcategor ization ”, 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 c omments raise issues regarding the existing BPT

- based direct discharge effluent limitations, such comments are outside the scope of this rule making ; a s 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

164 EPA disagrees with the commenter’s assertion that EPA applied an “incorrect baseline” in promulgating the pretreatment standards in this final rule

. The commenter s 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 r equisite 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 EP A’s Response 1

- A ; Response 1

- CC

. A s explained in these responses and in Secti on 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 represent s BAT/ BADCT for the facilities subject to this final rule

. See Response 1

- A

. S ee 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 R EGULATORY 

### L ANGUAGE 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 purp ose 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 unnecessa ry 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?). Abov e 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 di stinction 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 approac h 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 porosi ty, 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 w ater 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 unconven tional wells

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

166 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 permeabil ity of the formation targeted. However, it may be difficu lt to identify what cons tit ute s 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 occu rr ed in the state. We recommend incorporating language s imila r to that found in California w here 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 wel l 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 distinc tion 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 permeab ility 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 whilePretreatment 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" n eed 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 wast ewater 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 res ponse 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 consi der 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 formatio n (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 use ful 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 f or 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 a nd 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 an d 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 wate r 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.5 2 In addressing the Plaintiff’s objection to subcategorization within the coastal oil

and 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 I n 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 subca tegory 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 addres sed 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.
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- 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 enforc e 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 general ly, 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 re veal 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 requi re 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 req uirements. 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 w ell 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 vertica l 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 determinatio n 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 ser ve 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 wi th 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 mate rials 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 documen ts 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

- PM

OOGM0001b (rev. June 2014) , available at http://www.elibrary.dep.state.pa.us/dsweb/Get/Document

- 100999/8000

- PM

OOGM0001b%20Permit%20

- %20Unconventional%20WellRF2.pdf. 64 See Exhibit B
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- 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 n atural 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 poten tially 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 sti mulation waste should be transferred to a POTW.

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- 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 cou ntry 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.

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- 0976 (CBD pg 8) In addition, disposal of wastewate r from conventional oil and gas development carries many of the same risks to public health and the environment as does UOG wastewater disposal.
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- 0970 (PRINGLE pg 3) Expedite rulemakings to update the ELGs for conventional oil and gas fa cilities 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 naturallyPretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

171 occurring radioactive materials are present in most w astewater generated during conventional oil and gas development and pose the same challenges to POTWs.
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- 0939 (KALLIO pg 2) Rules Should Additionally Apply to Conventional Oil and Gas Waste Fluids These rules should apply to the discha rges 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 Waste waters: 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 originati ng 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 dir ectly to treatment facilities.
EPA
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- 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 co ntain 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.
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- 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 addre ssed by the following response. The universe of facilities subject to the pre treatment 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 an d/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 ter m “ unconventional ” inPretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

172 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” sandst one formations, coal beds (coal bed methane or CBM) and shale formations.”) ) ; API/ANGA’s Characterizing Pivotal Sources of Methane Emissions from Natural Gas P roduction, Summary and Analysis of API and ANGA Survey Responses from September 21, 2012 (DCN SGE 00291) (“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 forma tion types

– shale, tight, and coalbed methane); The 2014 Federal Multi

Agency 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 uncon ventional, 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 So urces. 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, be cause 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 b e 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 definitio n 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 forPretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

173 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 regu lations 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 geologi c 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., s hale, 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 s timulation technique employed , for the reasons explained below

. EPA considered defining unconventional oil and gas based on an ex clusive 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 a n exclusive list of UOG formations in this final rule because o f its concern that new UOG resources could be identified in the future, and that a static source could thus be come inaccurate for regulatory purposes.
EPA also did not define UOG based on the well stimulation technique employed , which is most often hydra ulic 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 ga s 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 fr acturing 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 unconvention al 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 p rovided 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

174 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 require ments 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 4 0 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 enforcem ent 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 a n unconventional well

. S hale 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 Amer ica, and the maps are separated into the following: Conventional Fields, Shale Gas and Oil Plays (DCN SGE01191), Major T ight G as P lays [which includes tight gas and oil] (DCN SGE00155), Coalbed Methane Fields, and Offshore Fields (DCN SGE01255). “ EPA was r eadily 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 completi on 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 a ll states require operators to submit information regarding the geo logic 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 nati onwide 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 toPretreatment 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 tig ht 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 consid e red ‘tight’ or whether it should be considered ‘shale’” (see comment from EPA

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- 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 differentiat e 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 i ssue
. These include: consult ing maps published by EIA ; consulting well completion reports required by the state; refer ring 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 UO G 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 t he environment as do wastewaters from unconventional wells, and that EPA should also address discharges from conventional wells in this rulemaking

. In addition, o ne commenter stated that the distinction between wastewaters from conventional and unconventio nal 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 fr om 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 r ulemaking priorities. Moreover, EPA did not solicit comment on including conventional formations in this rule and thus this issue is outside the scope of this rul emaking

. 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

176 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 cons ider 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 futu re
. 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
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- 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 facil ities (subpart C). The final rule establishes requirements for wastewater discharges from UOG extraction facilities to POTWs.

Comments
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- 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.
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- 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

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

177 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 formatio n 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 t he 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, t here is no regulatory distinction made between flowback and produced water in the final rule . The final rule definition of p roduced w ater is as follows: p roduced water means the fluid (brine) brought up from the hydrocarbon

- bearing strata during the extraction of oil and gas, and include s, where present, formation water, injection water, and any chemicals added downh ole or during the oil/water separation process. EPA co nsiders flowback and long

- term produced water to fit within the regulatory definition of produced water (see TDD Chapter B) and notes t here is no definition of flowback given in the final rule . Because EPA is not making a regulatory distinction between flo wback 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 tha t 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: “ p roduced water means the fluid (brine) brought up from the hydrocarbon

- bearing strata du ring the extraction of oil and gas, and include s, where present, formation water, injection water, and any chemicals added downh ole or during the oil/water separation process. ”

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

178 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 c ommenter suggests that POTWs could except [s ic] 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 c ommenter is mistaken that EPA stated in the proposed rule that PO TWs 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 wastewa ter to POTWs. S ee Response 6

- H

.
Applicability and Scope Comments
EPA
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- 0953 (API pg 6) Should EPA choose to proceed with the proposed rule, in the int erests 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 p roduced 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.
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- 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 unconventi onal 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 centra lized 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 CWTPretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

179 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 20 15 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 Wastewat er 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 dire ctly 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 fr om 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 c lear 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 sh ale 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 exempt ion 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 vary ing 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 addre ssed by the following response. EPA does not agree that the final rule needs to be revised to state that shal e operators are permitted to send their UOG extraction wastewater to CWT facilities in compliance with the established effluent limitations guidelines for CWT facilitie s 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 UOGPretreatment 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 facilitie s under the existing ELG for the centralized waste treatment point source category. For general comments outside the scope of this rulemaking, s ee Response 6

- A

. For comments regarding 40 CFR 435 subpart E, see Response 6

- H

. For comments relat ed to CWT facilitie s, see Response 6

- C , Response 2

- A , and Response 2

- B

.
Comments Regarding Definitions of PSES and PSNS Comments
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- 096 6 (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 t hese 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, Subchap ter 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 i ntend 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 definiti ons elsewhere in 40 CFR Chapter I, Subchapter N

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

181 

### 6.0 O UTSIDE THE 

### S COPE OF THE 

### R ULEMAKING General: Outside the Scope of the Rulemaking Comments
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- 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 quali t y standards and state water quali t y standards can be established for these pollutants.
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- 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, & R osenwinkel p. 3803)

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- 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 3 0 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.
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- 0952 (C LISH pg 2) To protect our water, the EPA and the Office of Management and Budget (OMB) should r equire 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
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- 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 techno logy can remove these to acceptable levels.
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- 1010 (H ZEHNAL pg 2) Illegal dumping of fracking wastewater in rivers and streams also needs very strong penalties.
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- 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 arePretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

182 being disposed of at was te treatment facilities that are unable to adequately deal with this waste, or the waste is illegally dumped in an unknown location.
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- 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
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- 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 an d 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.
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- 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 burnin g of them more efficient.
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- 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. I t 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 addre ssed by the following response. As explained in Section VI of the preamble to the final rul e, 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 othe r 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) arePretreatment 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 th is 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 commente r 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 sen ding its wastewater to POTWs

. To the extent that the commenter is referring to privately owned treatment facilities (known as centralized was te treatment facilities, or CWT facilities ), EPA notes that commen ts regarding the ability of CWT facilities to add ress oil and gas extraction wastewater are outside the scop e of this rulemaking. See Response 6

- C

.

Landfill Leachate Regulations Comments
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- 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 curre ntly 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 disp osal. 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 extractio n 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 th e 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 half

lives 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, whichPretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

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 radium

22 6 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, w hich 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
Gi ven 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

- 513 5.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
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- 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 he alth 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.

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- 0963 (ANONYMOUS pg 1) y ou 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 addre ssed 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
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- 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 Propose d 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 reflec t 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 qu ality. 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.
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- 0968 (WA pg 2) w e 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 c riteria 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
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- 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 con cern 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, to tal 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 stan dards 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.
27 Effluent 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 G uidelines, 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).
28 See generally U.S. Department of Energy, National Ene rgy 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.s ta te.pa.us/publicr eports/Modules/DataExports/DataExports.a spx
.Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

187 30 U.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.
31 Michael 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
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- 0976 (CBD pg 8) Disposing of wastewater at a Centralized Waste Treatment (“CWT”) facil ity 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 po se the same significant risk to water quality and human health. This method of disposal should also be prohibited.
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- 0997 (EUREKA pg 4) Accordingly, there is no level of pretreatment currently required for CWT facilities that discharge "t reated" UOG Extraction Wa stewater 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. Thi s 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 industri al 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 pr ograms 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 dischar ge 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 tha t 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 t he 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
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- 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 m ake informed decisions

. Finally, we believe the rules should apply to any wastewater (treated or non

treated) which may enter a community’s drinking water system. This would be in the best interest of public health

. EPA
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- 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

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- 0956 (CONSERVANCY SW FL pg 2) Improper wastewat er 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 H ogan 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 requ ire 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 transport ed 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 transf

erred to Miami

- Dade facilities where it was likely disposed of in a combination of injection well and ocean outfall.
T his incident highlighted several key concerns with the current waste treatment process: Trade secret laws often prevent treatment facil it ies accepting waste from knowing what const itu ents 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 difficu lt 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 o fTrade 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 hydrau lic 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
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- 0966 (NJ DEP pg 1) t he 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
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- 0966 (NJ DEP pg 2) None of the subcategories under the CWT categorical regulation contain the subparts regulat ed 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

- be aring, oily, organic waste, wastewater, or used material received from off

- site from Subparts A, B, and C ("Multiple Wast e streams 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 technologi e s to remove such pollutants. These wastewater pollutants of UOG operations may, if not properl y treated at CWT facilities, pass through and discharge to POTWs which also are not designed to treat these pollutants.
EPA
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- 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
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- 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

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- 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 prod uction 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 thisPretreatment 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 a nd 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 p ermit 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, doe s 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 the ir NDPES permits, so even if TDS passes through the POTW, there will not be an actual pretrea t ment violation of "pass through" as defined in 40 CFR 403.3 and prohibited by 40 CFR 40 3.5. The POTW has to violate it s NPDES permit for there to be a pretreatmen t 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 specific ally limited to pretreatment standards for onshore unconventional (UOG) oil and gas extraction facilities (subpart C). A s such, t he 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 wast e 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 commente rs, 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 cen tralized 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.

Coalb ed Methane Wastewater Effluent Guidelines and Standards Com ments
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- 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 EPAPretreatment 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 jeopa rdizes 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 Limitations

setting 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 Dock et ID No. EPA

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- 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 gr oups).
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- 0769 (POHLY pg 1) I urge EPA to include coalbed methane production in this rulemaking
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- 0820 (SHAW pg 1) I urge EPA to include coalbed methane production in this rulemaking a
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- 0905 (STRAWN pg 1) I urge EPA to include coalbed methane production in this rulemaking
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- 0923 (GROSS pg 1) to address coalbed methane production.
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- 0817 (PIETRO POGGI pg 1) I urge EPA to include coalbed methane production in this rule making
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- 0818 (GRINDLEY pg 1) I urge EPA to include coalbed methane production in this rulemaking Response 6
- D All comments under Section 6.4 “ Coalb ed Methane Wastewater Effluent Guidelines and Standards ” are addre ssed by the following response.
A lthough 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 a ddress 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

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Water Quality Criteria for Hydraulic Fracturing Chemicals and U nconventional O il and G as Wastewater Comments
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- 0 968 (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 a dequate 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 EP A

recommended 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 specific ally limited to pretreatment standards for onshore unconventional (UOG) oil and gas extraction facilities (subpart C). As such, t he final ru le 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 U nderground I njection C ontrol and Seismicity Comments
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- 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 int o 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 eve r 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 ear thquakes 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 b etween 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 cle an 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 e xcess 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 av erage 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 wastewa ter 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 trea tments. WithPretreatment 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 progra m. 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 shut

down orders issued to dat e.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 e mergency, 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. e t 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 (“Kerane n 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 Geolog ical 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 D epartment 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 en closure 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 a nd Gas Supervisor at California Division of Oil, Gas, and GeothermalPretreatment 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, Let ter 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 Resource s 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.
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- 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 U nderground Injection Control wells.
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- 0943 (AWWA pg 1) Additionally, we ask that EPA continue further work to identif y 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 ex traction 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 wi th greater than 10,000 TDS may be needed in light of increasingly scarce drinking water supplies in much of the country

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- 0969 (MEYER pg 1) Deep well injection is not necessary, when JSM technology is used. There is a risk when the prod uced 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 t he 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 contam ination 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 “ U nderground I njection C ontrol 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 i s by far the most common method ofPretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

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 activi ty 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 t his 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 dischar ge 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 ach ieved 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 e nable 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
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- 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.
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- 0956 (CONSERVANCY SW FL pg 3) we encourage the EPA to amend RCRA to include UOG wastewater under the defin it ion 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 situ ations, such as Hogan, from occu rr ing.
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— lined or unlined open pits that allow chemicals to evaporate into the air, leach into the soil and groundwater, or spi ll intoPretreatment 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

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Response 6
- G All comments under Section 6.7 “ Solid Waste and Emergency Response ,” are addre ssed by the following response. As explained in Section VI of the preamble to the final rule, consistent with the proposal, the scope of th is final rule is specific ally limited to pretreatment standards for onshore unconventional (UOG) oil and gas extraction facilities (subpart C). As such, t he final rule establishes requirements for wastewater discharges from UOG extraction facilities to POT Ws. 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
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- 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 chlor ide, 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 me thods of disposal should also be prohibited.
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- 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 w ith surface water and soil. These methods of disposal should also be prohibited.Pretreatment Standards for Unconventional Oil and Gas Extraction: EPA’s Response to Public Comments

198 38 Cart, Julie, Central Valley’s Growing Concern: Crops Raised with Oil Field Water, Los Angeles Times (May 2, 201 5) http://www.latimes.com/local/california/la

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Response 6
- H All comments under Section 6.8 “ Beneficial Reuse of Produced Water for Agriculture and Wildlife Uses and Land Application ,” are addre ssed 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 specific ally 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 limit ed to regulating discharges of pollutants in UOG wastewater to POTWs; thus, regulation of l and application of produced water (e.g. road deicing) is also beyon d the scope of this rulemaking. See Response 1

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