[Federal Register Volume 81, Number 124 (Tuesday, June 28, 2016)]
[Rules and Regulations]
[Pages 41845-41857]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-14901]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 435
[EPA-HQ-OW-2014-0598; FRL-9947-87-OW]
RIN 2040-AF35
Effluent Limitations Guidelines and Standards for the Oil and Gas
Extraction Point Source Category
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is publishing a
final Clean Water Act (CWA) regulation that protects human health, the
environment and the operational integrity of publicly owned treatment
works (POTWs) by establishing pretreatment standards that prevent the
discharge of pollutants in wastewater from onshore unconventional oil
and gas (UOG) extraction facilities to POTWs. UOG extraction wastewater
can be generated in large quantities and contains constituents that are
potentially harmful to human health and the environment. Certain UOG
extraction wastewater constituents are not typical of POTW influent
wastewater and can be discharged, untreated, from the POTW to the
receiving stream; can disrupt the operation of the POTW (e.g., by
inhibiting biological treatment); can accumulate in biosolids (sewage
sludge), limiting their beneficial use; and can facilitate the
formation of harmful disinfection by-products (DBPs). Based on the
information collected by EPA, the requirements of this final rule
reflect current industry practices for onshore unconventional oil and
gas extraction facilities. Therefore, EPA does not project that the
final rule will impose any costs or lead to pollutant removals, but
will ensure that current industry best practice is maintained over
time.
DATES: The final rule is effective on August 29, 2016. In accordance
with 40 CFR part 23, this regulation shall be considered issued for
purposes of judicial review at 1 p.m. Eastern time on July 12, 2016.
Under section 509(b)(1) of the CWA, judicial review of this regulation
can be had only by filing a petition for review in the U.S. Court of
Appeals within 120 days after the regulation is considered issued for
purposes of judicial review. Under section 509(b)(2), the requirements
in this regulation may not be challenged later in civil or criminal
proceedings
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brought by EPA to enforce these requirements.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OW-2014-0598. All documents in the docket are
listed on the http://www.regulations.gov Web site. Although listed in
the index, some information is not publicly available, e.g.,
confidential business information (CBI) or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available electronically through http://www.regulations.gov. A detailed record index, organized by subject, is
available on EPA's Web site at https://www.epa.gov/eg/unconventional-oil-and-gas-extraction-effluent-guidelines.
FOR FURTHER INFORMATION CONTACT: For more information, see EPA's Web
site: https://www.epa.gov/eg/unconventional-oil-and-gas-extraction-effluent-guidelines. For technical information, contact Karen Milam,
Engineering and Analysis Division, Office of Science and Technology
(4305T), Environmental Protection Agency, 1200 Pennsylvania Ave. NW.,
Washington, DC 20460; telephone number: 202-566-1915; email address:
[email protected].
SUPPLEMENTARY INFORMATION:
Organization of This Preamble
Table of Contents
I. Regulated Entities and Supporting Documentation
A. Regulated Entities
B. Supporting Documentation
II. Legal Authority
III. Purpose and Summary of Final Rule
A. Purpose and Summary of the Final Rule
B. Summary of Costs and Benefits
IV. Background
A. Clean Water Act
B. Effluent Limitations Guidelines and Standards Program
1. Best Practicable Control Technology Currently Available (BPT)
2. Best Conventional Pollutant Control Technology (BCT)
3. Best Available Technology Economically Achievable (BAT)
4. Best Available Demonstrated Control Technology (BADCT)/New Source
Performance Standards (NSPS)
5. Pretreatment Standards for Existing Sources (PSES) and
Pretreatment Standards for New Sources (PSNS)
C. Subcategorization
D. Oil and Gas Extraction Effluent Guidelines Rulemaking History
1. Subpart C: Onshore
2. Subpart E: Agricultural and Wildlife Use
E. State Pretreatment Requirements That Apply to UOG Extraction
Wastewater
F. Related Federal Requirements in the Safe Drinking Water Act
V. Industry Profile
VI. Final Rule
A. Scope/Applicability
B. Option Selection
1. PSES
2. PSNS
3. Pollutants Selected for Regulation Pass-Through Analysis
VII. Environmental Impacts
A. Pollutants
B. Impacts From the Discharge of Pollutants Found in UOG
Extraction Wastewater
C. Impact on Surface Water Designated Uses
1. Drinking Water Uses
2. Aquatic Life Support Uses
3. Livestock Watering Uses
4. Irrigation Uses
5. Industrial Uses
VIII. Regulatory Implementation of the Standard
A. Implementation Deadline
B. Upset and Bypass Provisions
C. Variances and Modifications
IX. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
H. Executive Order 13211: Energy Effects
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Congressional Review Act (CRA)
I. Regulated Entities and Supporting Documentation
A. Regulated Entities
Entities potentially regulated by this final action include:
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North American
Industry
Category Examples of regulated Classification
entities System (NAICS)
Code
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Industry...................... Crude Petroleum and 211111
Natural Gas
Extraction.
Natural Gas Liquid 211112
Extraction.
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This section is not intended to be exhaustive, but rather provides
a guide for readers regarding entities likely to be regulated by this
final action. Other types of entities that do not meet the above
criteria could also be regulated. To determine whether your facility
would be regulated by this final action, you should carefully examine
the applicability criteria listed in 40 CFR 435.30 and the definitions
in 40 CFR 435.33(b) of the final rule and detailed further in Section
VI, of this preamble. If you still have questions regarding the
applicability of this final action to a particular entity, consult the
person listed for technical information in the preceding FOR FURTHER
INFORMATION CONTACT section.
B. Supporting Documentation
The final rule is supported by a number of documents including the
Technical Development Document for the Effluent Limitations Guidelines
and Standards for the Oil and Gas Extraction Point Source Category
(TDD), Document No. EPA-820-R-16-003 (DCN SGE01188). This document is
available in the public record for this final rule and on EPA's Web
site at https://www.epa.gov/eg/unconventional-oil-and-gas-extraction-effluent-guidelines.
II. Legal Authority
EPA finalizes this regulation under the authorities of sections
101, 301, 304, 306, 307, 308, and 501 of the CWA, 33 U.S.C. 1251, 1311,
1314, 1316, 1317, 1318, and 1361.
III. Purpose and Summary of Final Rule
A. Purpose and Summary of the Final Rule
Responsible development of America's oil and gas resources offers
important economic, energy security, and environmental benefits. EPA
has been working with states and other
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stakeholders to understand and address potential impacts of hydraulic
fracturing, an important process involved in producing unconventional
oil and gas, to help ensure public confidence that oil and gas
production is conducted in a safe and responsible manner. This final
rule fills a gap in existing federal wastewater regulations to ensure
that the current industry practice of not sending wastewater discharges
from this sector to POTWs continues into the future. This rule does not
address the practice of underground injection of wastewater discharges
from this sector, which is covered under the Safe Drinking Water Act
(SDWA) (see Chapter A of the TDD).
Recent advances in the well completion process, combining hydraulic
fracturing and horizontal drilling, have enhanced the technological and
economic feasibility of oil and natural gas extraction from both
existing and new resources. As a result, in 2013, United States (U.S.)
crude oil and natural gas production reached their highest levels in
more than 15 and 30 years, respectively (DCN SGE01192). Further, the
Department of Energy (DOE) projects that natural gas production in the
U.S. will increase by 45 percent by 2040, compared to 2013 production
levels (DCN SGE01192). Similarly, the DOE projects that by 2020, crude
oil production in the U.S. will increase by 43 percent compared to 2013
production levels (DCN SGE01192).
Direct discharges of oil and gas extraction wastewater pollutants
from onshore oil and gas resources to waters of the U.S. have been
regulated since 1979 under the existing Oil and Gas Effluent
Limitations Guidelines and Standards (ELGs) (40 CFR part 435), the
majority of which fall under subpart C, the Onshore Subcategory. Oil
and gas extraction activities subject to subpart C include production,
field exploration, drilling, well completion, and well treatment. The
limitations for direct dischargers in the Onshore Subcategory represent
Best Practicable Control Technology Currently Available (BPT). Based on
the availability and economic practicability of underground injection
technologies, the BPT-based limitations for direct dischargers require
zero discharge of pollutants to waters of the U.S. However, there are
currently no requirements in subpart C that apply to onshore oil and
gas extraction facilities that are ``indirect dischargers,'' i.e.,
those that send their discharges to POTWs (municipal wastewater
treatment facilities) which treat the water before discharging it to
waters of the U.S.
This final rule applies to a subset of oil and gas extraction,
i.e., onshore extraction from shale and/or tight geologic formations
(referred to hereafter as unconventional oil and gas (UOG) resources).
UOG extraction wastewater can be generated in large quantities and
contains constituents that are potentially harmful to human health and
the environment. Wastewater from UOG wells often contains high
concentrations of total dissolved solids (TDS) (salt content). The
wastewater can also contain various organic chemicals, inorganic
chemicals, metals, and naturally-occurring radioactive materials
(referred to as technologically enhanced naturally occurring
radioactive material or TENORM).\1\ This potentially harmful wastewater
creates a need for appropriate wastewater management infrastructure and
management practices. Historically, operators of oil and gas extraction
facilities primarily managed their wastewater via underground injection
(where available). Where UOG wells were drilled in areas with limited
underground injection wells, and/or there was a lack of wastewater
management alternatives, it became more common for operators to look to
POTWs and private wastewater treatment facilities to manage their
wastewater.
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\1\ Naturally occurring radioactive materials that have been
concentrated or exposed to the accessible environment as a result of
human activities such as manufacturing, mineral extraction, or water
processing are referred to as technologically enhanced naturally
occurring radioactive material (TENORM). ``Technologically
enhanced'' means that the radiological, physical, and chemical
properties of the radioactive material have been altered by having
been processed, or beneficiated, or disturbed in a way that
increases the potential for human and/or environmental exposures.
(See EPA 402-R-08-005-V2)
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POTWs collect wastewater from homes, commercial buildings, and
industrial facilities and pipe it through sewer lines to the sewage
treatment plant. In some cases, industrial dischargers can haul
wastewater to the treatment plant by tanker truck. The industrial
wastewater, commingled with domestic wastewater, is treated by the POTW
and discharged to a receiving waterbody. Most POTWs, however, are
designed primarily to treat municipally-generated, not industrial,
wastewater. They typically provide at least secondary level treatment
and, thus, are designed to remove suspended solids and organic material
using biological treatment. As mentioned previously, wastewater from
UOG extraction can contain high concentrations of TDS, radioactive
elements, metals, chlorides, sulfates, and other dissolved inorganic
constituents that POTWs are not designed to remove. Certain UOG
extraction wastewater constituents are not typical of POTW influent
wastewater and can be discharged, untreated, from the POTW to the
receiving stream; can disrupt the operation of the POTW (e.g., by
inhibiting biological treatment); can accumulate in biosolids (sewage
sludge), limiting their beneficial use; and can facilitate the
formation of harmful DBPs.
Where UOG extraction wastewaters have been discharged through POTWs
and private wastewater treatment plants in the past, it has been
documented that the receiving waters have elevated levels of TDS,
specifically chlorides and bromide (DCN SGE01328). The concentration of
TDS in UOG extraction wastewater can be high enough that if discharged
untreated to a surface water it has the potential to adversely affect a
number of the designated uses of the surface water, including use as a
drinking water source, aquatic life support, livestock watering,
irrigation, and industrial use. High concentrations of TDS can impact
aquatic biota by causing increased receiving water salinity, osmotic
imbalances, and toxic effects from individual ions present in the TDS.
Increases in instream salinity have been shown to cause shifts in
biotic communities, limit biodiversity, exclude less-tolerant species
and cause acute or chronic effects at specific life stages (DCN
SGE00946).
Discharges of bromide in industrial wastewater upstream of drinking
water intakes--either directly or indirectly through POTWs--have led to
the formation of carcinogenic disinfection by-products (brominated
DBPs, in particular trihalomethanes) at drinking water utilities.
Recent studies indicate that UOG extraction wastewaters contain various
inorganic and organic DBP precursors that can react with disinfectants
used by POTWs, and promote the formation of DBPs or alter speciation of
DBPs, particularly brominated-DBPs, which are suspected to be among the
more toxic DBPs (DCN SGE00535; DCN SGE00985). DBPs have been shown to
have both adverse human health and ecological affects (DCN SGE00535;
DCN SGE01126).
Section 307(b) of the CWA provides EPA authority to establish
nationally applicable pretreatment standards for industrial categories
that discharge indirectly (i.e., send wastewater to any POTW); this
authority applies to key pollutants, such as TDS and its constituents,
that are not susceptible to treatment by POTWs, or for pollutants that
would interfere with the operation
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of POTWs. Generally, EPA designs nationally applicable pretreatment
standards for categories of industry (categorical pretreatment
standards) to ensure that wastewaters from direct and indirect
industrial dischargers are subject to similar levels of treatment. EPA,
in its discretion under section 304(g) of the Act, periodically
evaluates indirect dischargers not subject to categorical pretreatment
standards to identify potential candidates for new pretreatment
standards. Until issuance of this final rule, EPA had not established
nationally applicable pretreatment standards for the onshore oil and
gas extraction point source subcategory.
This final rule establishes technology-based categorical
pretreatment standards under the CWA for discharges of pollutants into
POTWs from existing and new onshore UOG extraction facilities in
subpart C of 40 CFR part 435 (80 FR 18557, April 7, 2015). The rule
will fill a gap in federal CWA regulations and address concerns
regarding the level of treatment provided by POTWs for UOG wastewater,
potential interference with treatment processes, and potential impacts
on water quality and aquatic life impacts that could result from
inadequate treatment. Consistent with existing BPT-based requirements
for direct dischargers in this subcategory, this final rule establishes
pretreatment standards for existing and new sources (PSES and PSNS,
respectively) that require zero discharge of wastewater pollutants
associated with onshore UOG extraction facilities to POTWs.
This final rule does not include pretreatment standards for
wastewater pollutants associated with conventional oil and gas
extraction facilities or coalbed methane extraction facilities. EPA is
reserving consideration of any such standards for a future rulemaking,
if appropriate. See Section V1.A.
B. Summary of Costs and Benefits
Because the data reviewed by EPA show that the UOG extraction
industry is not currently managing wastewaters by sending them to
POTWs, the final rule is not projected to affect current industry
practice or to result in incremental compliance costs or monetized
benefits. UOG extraction wastewater is typically managed through
disposal via underground injection wells, reuse/recycle in subsequent
fracturing jobs, or transfer to a centralized waste treatment (CWT)
facility (see 80 FR 18570, April 7, 2015). EPA is promulgating this
rule as a backstop measure because onshore unconventional oil and gas
extraction facilities have discharged to POTWs in the past and because
the potential remains that some facilities may consider discharging to
POTWs in the future.
IV. Background
A. Clean Water Act
Congress passed the CWA to ``restore and maintain the chemical,
physical, and biological integrity of the Nation's waters.'' 33 U.S.C.
1251(a). The Act establishes a comprehensive program for protecting our
nation's waters. Among its core provisions, the CWA prohibits the
discharge of pollutants from a point source to waters of the U.S.,
except as authorized under the Act. Under section 402 of the CWA,
discharges may be authorized through a National Pollutant Discharge
Elimination System (NPDES) permit. The CWA establishes a two-pronged
approach for these permits, technology-based controls that establish
the floor of performance for all dischargers, and water quality-based
limits where the technology-based limits are insufficient for the
discharge to meet applicable water quality standards. To serve as the
basis for the technology-based controls, the CWA authorizes EPA to
establish national technology-based effluent limitations guidelines and
new source performance standards for discharges from different
categories of point sources, such as industrial, commercial, and public
sources, that discharge directly into waters of the U.S.
Direct dischargers (those discharging directly to waters of the
U.S.) must comply with effluent limitations in NPDES permits.
Technology-based effluent limitations (TBELs) in NPDES permits for
direct dischargers are derived from effluent limitations guidelines
(CWA sections 301 and 304) and new source performance standards (CWA
section 306) promulgated by EPA. Alternatively, TBELs may be
established based on best professional judgment (BPJ) where EPA has not
promulgated an applicable effluent guideline or new source performance
standard (CWA section 402(a)(1)(B) and 40 CFR 125.3). The effluent
guidelines and new source performance standards established by
regulation for categories of industrial dischargers are based on the
degree of control that can be achieved using various levels of
pollution control technology, as specified in the Act. Additional
limitations based on water quality standards are also required to be
included in the permit where necessary to meet water quality standards.
CWA section 301(b)(1)(C).
EPA promulgates national effluent guidelines and new source
performance standards for major industrial categories for three classes
of pollutants: (1) Conventional pollutants (total suspended solids, oil
and grease, biochemical oxygen demand (BOD5), fecal coliform, and pH),
as outlined in CWA section 304(a)(4) and 40 CFR 401.16; (2) toxic
pollutants (e.g., metals such as arsenic, mercury, selenium, and
chromium; and organic pollutants such as benzene, benzo-a-pyrene,
phenol, and naphthalene), as outlined in section 307(a) of the Act, 40
CFR 401.15 and 40 CFR part 423, appendix A; and (3) nonconventional
pollutants, which are those pollutants that are not categorized as
conventional or toxic (e.g., ammonia-N, phosphorus, and TDS).
Under section 307(b) of the CWA, there are general and specific
prohibitions on the discharge to POTWs of pollutants in specified
circumstances in order to prevent ``pass through'' or ``interference.''
Pass through occurs whenever the introduction of pollutants from a user
will result in a discharge that causes or contributes to a violation of
any requirement of the POTW permit. See 40 CFR 403.3(p). Interference
means a discharge that, among other things, inhibits or disrupts the
POTW or prevents biosolids use consistent with the POTW's chosen method
of disposal. See 40 CFR 403.3(k). These general and specific
prohibitions must be implemented through local limits established by
POTWs in certain cases. See 40 CFR 403.5(c). POTWs with approved
pretreatment programs must develop and enforce local limits to
implement the general prohibitions on user discharges that pass through
or interfere with the POTW and implement specific prohibitions in 40
CFR 403.5(b). In the case of POTWs that are not required to develop a
pretreatment program, the POTWs must develop local limits where there
is interference or pass through and the limits are necessary to ensure
compliance with the POTW's NPDES permit or biosolids use.
The CWA also authorizes EPA to promulgate nationally applicable
pretreatment standards that restrict pollutant discharges from
facilities that discharge pollutants indirectly, by sending wastewater
to POTWs, as outlined in sections 307(b) and (c) and 33 U.S.C. 1317(b)
and (c). Specifically, the CWA authorizes EPA to establish pretreatment
standards for those pollutants in wastewater from indirect dischargers
that EPA determines are not susceptible to treatment by a POTW or which
would interfere with POTW operations. CWA sections 307(b) and (c).
Under section 301(b)(1)(A) and
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301(b)(2)(A) and the legislative history of the 1977 CWA amendments,
pretreatment standards are technology-based and analogous to TBELs for
direct dischargers for the removal of toxic pollutants. As explained in
the statute and legislative history, the combination of pretreatment
and treatment by the POTW is intended to achieve the level of treatment
that would be required if the industrial source were making a direct
discharge. Conf. Rep. No. 95-830, at 87 (1977), reprinted in U.S.
Congress. Senate. Committee on Public Works (1978), A Legislative
History of the CWA of 1977, Serial No. 95-14 at 271 (1978). As such, in
establishing pretreatment standards, EPA's consideration of pass
through for national technology-based categorical pretreatment
standards differs from that described above for general pretreatment
standards. For categorical pretreatment standards, EPA's approach for
pass through satisfies two competing objectives set by Congress: (1)
That standards for indirect dischargers be equivalent to standards for
direct dischargers; and (2) that the treatment capability and
performance of the POTWs be recognized and taken into account in
regulating the discharge of pollutants from indirect dischargers.
B. Effluent Limitations Guidelines and Standards Program
EPA develops ELGs that are technology-based regulations for
specific categories of dischargers. EPA bases these regulations on the
performance of control and treatment technologies. The legislative
history of CWA section 304(b), which is the heart of the effluent
guidelines program, describes the need to press toward higher levels of
control through research and development of new processes,
modifications, replacement of obsolete plants and processes, and other
improvements in technology, taking into account the cost of controls.
Congress has also stated that EPA need not consider water quality
impacts on individual water bodies as the guidelines are developed. See
Statement of Senator Muskie (October 4, 1972), reprinted in U.S. Senate
Committee on Public Works, Legislative History of the Water Pollution
Control Act Amendments of 1972, Serial No. 93-1, at 170.
There are four types of standards applicable to direct dischargers
(facilities that discharge directly to waters of the U.S.), and two
types of standards applicable to indirect dischargers (facilities that
discharge to POTWs), described in detail later on. Subsections 1
through 4 describe standards for direct discharges and subsection 5
describes standards for indirect discharges.
1. Best Practicable Control Technology Currently Available (BPT)
Traditionally, EPA defines BPT effluent limitations based on the
average of the best performances of facilities within the industry,
grouped to reflect various ages, sizes, processes, or other common
characteristics. BPT effluent limitations control conventional, toxic,
and nonconventional pollutants. In specifying BPT, EPA looks at a
number of factors. EPA first considers the cost of achieving effluent
reductions in relation to the effluent reduction benefits. The Agency
also considers the age of equipment and facilities, the processes
employed, engineering aspects of the control technologies, any required
process changes, non-water quality environmental impacts (including
energy requirements), and such other factors as the Administrator deems
appropriate. See CWA section 304(b)(1)(B). If, however, existing
performance is uniformly inadequate, EPA can establish limitations
based on higher levels of control than are currently in place in an
industrial category, when based on an Agency determination that the
technology is available in another category or subcategory and can be
practically applied.
2. Best Conventional Pollutant Control Technology (BCT)
For discharges of conventional pollutants from existing industrial
point sources, the CWA requires EPA to identify additional levels of
effluent reduction that can be achieved with BCT. In addition to other
factors specified in section 304(b)(4)(B), the CWA requires that EPA
establish BCT limitations after consideration of a two-part ``cost
reasonableness'' test. In a July 9, 1986 Federal Register Notice, EPA
published and explained its methodology for the development of BCT
limitations in (51 FR 24974). Section 304(a)(4) designates the
following as conventional pollutants: BOD5, total suspended
solids (TSS), fecal coliform, pH, and any additional pollutants defined
by the Administrator as conventional. The Administrator designated oil
and grease as an additional conventional pollutant on July 30, 1979 (44
FR 44501; 40 CFR part 401.16).
3. Best Available Technology Economically Achievable (BAT)
BAT represents the second level of stringency for controlling
direct discharge of toxic and nonconventional pollutants. In general,
BAT-based effluent guidelines and new source performance standards
represent the best available economically achievable performance of
facilities in the industrial subcategory or category. Following the
statutory language, EPA considers the technological availability and
the economic achievability in determining what level of control
represents BAT. CWA section 301(b)(2)(A). Other statutory factors that
EPA considers in assessing BAT are the cost of achieving BAT effluent
reductions, the age of equipment and facilities involved, the process
employed, potential process changes, and non-water quality
environmental impacts, including energy requirements and such other
factors as the Administrator deems appropriate. CWA section
304(b)(2)(B). The Agency retains considerable discretion in assigning
the weight to be accorded these factors. Weyerhaeuser Co. v. Costle,
590 F.2d 1011, 1045 (D.C. Cir. 1978).
4. Best Available Demonstrated Control Technology (BADCT)/New Source
Performance Standards (NSPS)
NSPS reflect effluent reductions that are achievable based on the
best available demonstrated control technology (BADCT). Owners of new
facilities have the opportunity to install the best and most efficient
production processes and wastewater treatment technologies. As a
result, NSPS should represent the most stringent controls attainable
through the application of the BADCT for all pollutants (that is,
conventional, nonconventional, and toxic pollutants). In establishing
NSPS, EPA is directed to take into consideration the cost of achieving
the effluent reduction and any non-water quality environmental impacts
and energy requirements. CWA section 306(b)(1)(B).
5. Pretreatment Standards for Existing Sources (PSES) and Pretreatment
Standards for New Sources (PSNS)
As discussed previously, section 307(b) of the Act authorizes EPA
to issue pretreatment standards for discharges of pollutants from
existing sources to POTWs. Section 307(c) of the Act authorizes EPA to
promulgate pretreatment standards for new sources (PSNS). Both
standards are designed to prevent the discharge of pollutants that pass
through, interfere with, or are otherwise incompatible with the
operation of POTWs. Categorical pretreatment standards for existing
sources are technology-based and are analogous to BPT and BAT effluent
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limitations guidelines, and thus the Agency typically considers the
same factors in promulgating PSES for toxic and non-conventional
pollutants as it considers in promulgating BAT. See Natural Resources
Defense Council v. EPA, 790 F.2d 289, 292 (3rd Cir. 1986). Similarly,
in establishing pretreatment standards for new sources, the Agency
typically considers the same factors in promulgating PSNS as it
considers in promulgating NSPS (BADCT).
C. Subcategorization
In developing ELGs, EPA can divide an industry category into
groupings called ``subcategories'' to provide a method for addressing
variations among products, processes, treatment costs, and other
factors that affect the determination of the ``best available''
technology. See Texas Oil & Gas Ass'n. v. US EPA, 161 F.3d 923, 939-40
(5th Cir.1998). Regulation of a category by subcategories provides that
each subcategory has a uniform set of effluent limitations or
pretreatment standards that take into account technological
achievability, economic impacts, and non-water quality environmental
impacts unique to that subcategory. In some cases, effluent limitations
or pretreatment standards within a subcategory can be different based
on consideration of these same factors, which are identified in CWA
section 304(b)(2)(B). The CWA requires EPA, in developing effluent
guidelines and pretreatment standards, to consider a number of
different factors, which are also relevant for subcategorization. The
CWA also authorizes EPA to take into account other factors that the
Administrator deems appropriate. CWA section 304(b).
D. Oil and Gas Extraction Effluent Guidelines Rulemaking History
The Oil and Gas Extraction industry is subcategorized in 40 CFR
part 435 as follows: (1) Subpart A: Offshore; (2) subpart C: Onshore;
(3) subpart D: Coastal; (4) subpart E: Agricultural and Wildlife Water
Use; and (5) subpart F: Stripper. EPA promulgated the first Oil and Gas
Extraction ELGs (40 CFR part 435) in 1979 establishing BPT-based
limitations for the Offshore, Onshore, Coastal, and Agricultural and
Wildlife Use subcategories. EPA established BAT- and NSPS-based limits
for certain subcategories in 1993 (Offshore), 1996 (Coastal), and 2001
(Synthetic-based drilling fluids). EPA also established pretreatment
standards for one subcategory (Coastal) in 1996.
The previously established subpart C (Onshore) regulation covers
wastewater discharges from field exploration, drilling, production,
well treatment, and well completion activities in the onshore oil and
gas industry. Although UOG resources occur in offshore and coastal
regions, recent development of UOG resources in the U.S. has occurred
primarily in onshore regions, to which the regulations in subpart C
(Onshore) and subpart E (Agricultural and Wildlife Water Use) apply.
Accordingly, this rule addresses the gap in onshore regulations, and
only the regulations that apply to onshore oil and gas extraction are
described in more detail here.
1. Subpart C: Onshore
Subpart C applies to facilities engaged in the production, field
exploration, drilling, well completion, and well treatment in the oil
and gas extraction industry which are located landward of the inner
boundary of the territorial seas--and which are not included in the
definition of other subparts--including subpart D (Coastal). The
regulations at 40 CFR 435.32 specify the following for BPT: There shall
be no discharge of wastewater pollutants into navigable waters from any
source associated with production, field exploration, drilling, well
completion, or well treatment (i.e., produced water, drilling muds,
drill cuttings, and produced sand).
2. Subpart E: Agricultural and Wildlife Use
Subpart E applies to onshore facilities located in the continental
U.S. and west of the 98th meridian for which the produced water has a
use in agriculture or wildlife propagation when discharged into
navigable waters. Definitions in 40 CFR 435.51(c) explain that the term
``use in agricultural or wildlife propagation'' means that (1) the
produced water is of good enough quality to be used for wildlife or
livestock watering or other agricultural uses; and (2) the produced
water is actually put to such use during periods of discharge. The
regulations at 40 CFR 435.52 specify that the only allowable discharge
is produced water, with an oil and grease concentration not exceeding
35 milligrams per liter (mg/L). The BPT regulations prohibit the
discharge of waste pollutants into navigable waters from any source
(other than produced water) associated with production, field
exploration, drilling, well completion, or well treatment (i.e.,
drilling muds, drill cuttings, produced sands).
E. State Pretreatment Requirements That Apply to UOG Extraction
Wastewater
In addition to applicable federal requirements, some states
regulate the management, storage, and disposal of UOG extraction
wastewater, including regulations concerning pollutant discharges to
POTWs from oil and gas extraction facilities. In addition to
pretreatment requirements, some states have indirectly addressed the
issue of pollutant discharges to POTWs by limiting the management and
disposal options available for operators to use.
During initial development of Marcellus shale gas resources, some
operators managed UOG wastewater by transfer to POTWs. EPA did not
identify other areas in the U.S. where POTWs routinely accepted UOG
extraction wastewaters. Chapter A of the TDD summarizes how
Pennsylvania, Ohio, Michigan, and West Virginia responded to UOG
extraction wastewater discharges to their POTWs. EPA did not identify
any states that require zero discharge of pollutants from UOG
operations to POTWs in the same manner as this final rule.
F. Related Federal Requirements in the Safe Drinking Water Act
As required by SDWA section 1421, EPA has promulgated regulations
to protect underground sources of drinking water through Underground
Injection Control (UIC) programs that regulate the injection of fluids
underground. These regulations are found at 40 CFR parts 144-148, and
specifically prohibit any underground injection not authorized by UIC
permit. 40 CFR 144.11. The regulations classify underground injection
into six classes; wells that inject fluids brought to the surface in
connection with oil and gas production are classified as Class II UIC
wells. Thus, onshore oil and gas extraction facilities that seek to
meet the zero discharge requirements of the existing ELGs or final
pretreatment standard through underground injection of wastewater must
obtain a Class II UIC permit for such disposal or take the wastewater
to an appropriately permitted injection facility.
V. Industry Profile
EPA gathered information on the industry via the North American
Industry Classification System (NAICS), which is a standard created by
the U.S. Census for use in classifying business establishments within
the U.S. economy. The industry category affected by this final rule is
the Oil and Gas Extraction industry (NAICS code 21111). The industry
has two segments: Crude Petroleum and Gas Extraction (NAICS 211111)
which is made up of facilities that have wells that produce petroleum
or natural gas or produce crude petroleum from surface shale or
[[Page 41851]]
tar sands; and Natural Gas Liquid Extraction (NAICS 211112), which is
made up of facilities that recover liquid hydrocarbons from oil and gas
field gases and sulfur from natural gas. According to data from the
Statistics of U.S. Businesses (SUSB), in 2012 there were 6,646 firms in
the overall Oil and Gas Extraction (OGE) industry. Of those firms,
98.5% were considered small business based on the Small Business
Administration (SBA) criteria definition of a small firm in this
industry as having 500 or fewer employees. In 2012, Oil and Gas
Extraction sector firms employed, on average, 19 employees and had an
estimated average $53 million in revenue per firm.
EPA reviewed financial performance of oil and gas firms from 2006
to 2014. Generally, over the analysis period, all segments of the oil
and gas industry showed a similar profile of revenue growth; however,
reviews of financial performance and condition metrics indicate a
recent deterioration in financial performance and condition for OGE
firms since mid-2014 due to the fall in crude oil and natural gas
prices. The prediction of slow price recovery indicates that the
financial condition of OGE firms in general may not recover in the
short term, though the crude oil and natural gas prices are forecast to
increase through 2040 (DCN SGE01192). While many factors will affect
further UOG development, and forecasts inevitably involve considerable
uncertainty, production is expected to continue to increase. EIA
forecasts that by 2040, shale gas will account for 55 percent of U.S.
natural gas production, with tight gas as the second leading source at
22 percent, and shale/tight oil \2\ will account for 45 percent of
total U.S. oil production (DCN SGE01192). See the industry profile (DCN
SGE01277) for more information.
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\2\ EIA reported this data as ``tight oil'' production but
stated that it includes production from both shale oil formations
(e.g., Bakken, Eagle Ford) and tight oil formations (e.g., Austin
Chalk).
---------------------------------------------------------------------------
VI. Final Rule
A. Scope/Applicability
Consistent with the proposal, the scope of this final rule is
specific to pretreatment standards for onshore oil and gas extraction
facilities (subpart C). EPA did not propose to reopen the regulatory
requirements applicable to any other subpart or the requirements for
direct dischargers in subpart C. Rather, the scope of the final rule
amends subpart C only to add requirements for indirect dischargers
where there currently are none. Further, also consistent with the
proposal, the final rule establishes requirements for wastewater
discharges from UOG extraction facilities to POTWs. It does not
establish requirements for wastewater discharges from conventional oil
and gas extraction (COG) facilities. EPA reserves consideration of any
such standards for a future rulemaking, if appropriate.
The final rule defines unconventional oil and gas resources as
``crude oil and natural gas produced by a well drilled into a shale
and/or tight formation (including, but not limited to, shale gas, shale
oil, tight gas, and tight oil).'' This definition is generally
consistent with other readily available sources. For additional
information, see Chapter B of the TDD.
As a point of clarification, although coalbed methane would fit
this definition, the final pretreatment standards do not apply to
pollutants in wastewater discharges associated with coalbed methane
extraction to POTWs. EPA notes that the requirements in the existing
effluent guidelines for direct dischargers also do not apply to coalbed
methane extraction, as this industry did not exist at the time that the
effluent guidelines were developed and was not considered by the Agency
in establishing the effluent guidelines (DCN SGE00761). To reflect the
fact that neither the final pretreatment standards nor the existing
effluent guideline requirements apply to coalbed methane extraction,
EPA expressly reserved a separate unregulated subcategory for coalbed
methane in this final rule. For information on coalbed methane, see
https://www.epa.gov/eg/coalbed-methane-extraction-industry.
B. Option Selection
EPA analyzed three regulatory options at proposal, the details of
which were discussed fully in the document published on April 7, 2015
(80 FR 18557). In general, these three options ranged from requiring
zero discharge of pollutants to POTWs, establishing non-zero
pretreatment standards, or establishing no national pretreatment
standards. Depending on the interests represented, public commenters
supported virtually all of the regulatory options that EPA proposed--
from the least stringent to the most stringent. Thus, in developing
this final rule, EPA again considered the same three regulatory
options.
1. PSES
After considering all of the relevant factors and technology
options discussed in this preamble and in the TDD, as well as public
comments, EPA decided to establish PSES based on current industry
practice: Disposal in UIC wells, wastewater reuse/recycling to fracture
\3\ another well, or management by centralized waste treatment (CWT)
facilities--none of which involve sending wastewater to POTWs. Thus,
for PSES, the final rule establishes a zero discharge standard on all
pollutants in UOG extraction wastewater.
---------------------------------------------------------------------------
\3\ In some cases, industry has also re-used/recycled the water
to drill another well that is not fractured.
---------------------------------------------------------------------------
Generally, EPA designs pretreatment standards to meet Congress'
objective to ensure that wastewaters from direct and indirect
industrial dischargers are subject to similar levels of pollutant
removals prior to discharge to waters of the U.S. See Chemical
Manufacturers Assn. v. EPA, 870 F.2d 177, 245 (5th Cir. 1989). This
means that, typically, the requirements for indirect dischargers are
analogous to those for direct dischargers. As explained in Section
IV.C., the existing BPT-based requirement for direct dischargers in the
Onshore Subcategory is zero discharge of wastewater pollutants into
waters of the U.S. from any source associated with production, field
exploration, drilling, well completion, or well treatment.
As explained in Section XII.E of the proposal (80 FR 18570, April
7, 2015), EPA evaluated the practices currently used to manage UOG
extraction wastewaters. Based on the information reviewed as part of
this final rulemaking, EPA concludes that current industry practice is
to not discharge pollutants from onshore UOG extraction to POTWs.\4\
Rather, the vast majority of this wastewater is managed by disposal in
underground injection wells and/or re-use in fracturing another well. A
small, but in some geographic areas increasing, portion of the industry
also transfers its wastewater to CWT facilities.\5\
---------------------------------------------------------------------------
\4\ EPA solicited additional data and information on current
industry practice as well as its preliminary finding that no UOG
facilities currently discharge to POTWs in the proposal. EPA did not
receive data since proposal to contradict this finding.
\5\ Existing effluent limitations guidelines and pretreatment
standards at 40 CFR part 437 apply to CWT facilities. The CWT
industry handles wastewater and industrial process by-products from
off-site. CWT facilities may receive a wide variety of hazardous and
non-hazardous industrial wastes for treatment.
---------------------------------------------------------------------------
The technology basis for the promulgated PSES is disposal in UIC
wells, wastewater reuse/recycling to fracture another well, or
management by CWT facilities. Because all existing UOG extraction
facilities currently employ alternative wastewater management practices
other than
[[Page 41852]]
transfer to a POTW, the technology basis for meeting a zero discharge
requirement is widely available. While EPA bases pretreatment standards
and associated discharge limits on a technology basis, the agency does
not require facilities to employ any specific technology; rather,
facilities may comply with alternative technologies as long as they
meet the prescribed limits.
Some commenters asserted that UIC wells may not be available in the
future in all geographic locations, but provided no data to support
their assertion. EPA does not have any data to demonstrate that UIC
capacity nationwide will be expended and that this current management
option will not be available in the future (See Chapter D of the TDD).
Further, data suggest that, where UIC wells are currently available,
this availability will likely continue in the future (see Chapter D of
the TDD). Moreover, the technology basis for the final pretreatment
standards is not limited to UIC disposal. EPA identified two other
approaches that also meet the zero discharge requirement: Reuse/recycle
of the wastewater for re-fracturing other wells, or transfer of the
wastewater to a CWT facility. In recent years, industry has greatly
expanded its knowledge about the ability to reuse/recycle UOG flowback
and long-term produced water (the major contributors to UOG extraction
wastewater by volume) in fracturing another well. Consequently, as the
UOG industry continues to grow and new wells are being fractured, the
need for UIC capacity for UOG extraction wastewater may decrease, even
in geographic locations with an abundance of UIC capacity, due to the
increased availability of reuse/recycle. In addition, EPA's record
demonstrates that in areas of the country where UIC wells and/or
opportunities for reuse in fracturing another well are limited, UOG
extraction facilities transfer their wastewater to a CWT facility (see
Chapter D of the TDD). Some commenters assert that the option to
transfer UOG wastewater to CWT facilities may be limited in the future
because EPA may revise ELGs for this industry. While EPA is conducting
a study of CWT facilities that accept oil and gas wastewater to
determine if revision to the CWT regulations may be appropriate, EPA is
not evaluating any approaches that would directly restrict their
availability to accept such wastewaters.
While the technology basis is best performing in that it achieves
zero discharge of pollutants in UOG extraction wastewater to POTWs, the
requirement reflects current industry practice and EPA therefore
estimates that there will be no incremental pollutant reductions.
Accordingly, because industry is already meeting this requirement, no
facilities will incur incremental costs for compliance with the
promulgated PSES and, therefore, the promulgated PSES is economically
achievable. For the same reasons, the final PSES will result in no
incremental non-water quality environmental impacts. Finally, because
the final rule represents current industry practice, EPA requires that
the PSES based on zero discharge of wastewater pollutants to POTWs be
effective as of the effective date of this rule, 60 days after
publication of this rule in the Federal Register.
EPA did not establish PSES based on Option 2, under which EPA would
establish non-zero numerical pretreatment standards for discharges of
wastewater pollutants from UOG extraction facilities. Such an option
could be similar to the one adopted in Pennsylvania in 2010 that
requires pretreatment of oil and gas wastewaters before discharge to a
POTW to meet a maximum TDS concentration of 500 mg/L as well as
specific numerical concentrations for other pollutants (see Chapter A
of the TDD). Some commenters suggested this approach would provide an
``escape-valve'' for the future in the event that UIC disposal well
capacity is exhausted. Others have suggested this would allow the water
to be available for re-use (other than in fracturing another well) if
technologies become available to pre-treat it to remove dissolved
pollutants in a cost effective manner.
Although EPA identified technologies \6\ that currently exist to
treat dissolved pollutants in UOG extraction wastewater that could be
used to set a non-zero numeric discharge limit, EPA did not select this
option for the following reasons. First, the existing requirements for
direct discharges of UOG extraction wastewater in the Onshore
Subcategory require zero discharge of pollutants. As explained
previously, EPA generally establishes requirements for direct and
indirect discharges so that the wastewater receives comparable levels
of pollutant removals prior to discharge to waters of the U.S.
---------------------------------------------------------------------------
\6\ See DCN SGE01186.
---------------------------------------------------------------------------
Second, as detailed previously, UOG facilities in this subcategory
are currently meeting the zero discharge requirement. Thus, any option
that would allow for a discharge of UOG pollutants above the current
zero discharge level would be less stringent than the current industry
practice and thus would potentially increase the discharge of such
pollutants to POTWs. EPA reasonably concluded that--as compared to a
less stringent non-zero technology basis in Option 2--a standard based
on available zero discharge options reflects the ``best'' available
technology within the meaning of Section 304(b) of the Clean Water Act.
Moreover, unlike Option 2, a zero discharge technology option is
consistent with the CWA goal of eliminating the discharge of pollutants
into navigable waters (CWA sections 101(a)(1); 301(b)(2)(A) and
306(a)(1)).
Third, EPA disagrees with the commenters' suggestion that an option
allowing for the discharge to POTWs is necessary as an ``escape valve''
in case of limited future availability of UIC disposal options. As
explained previously, UIC disposal capacity is currently widely
available, and EPA does not have data to suggest that this capacity
will be limited in the future. Moreover, approaches to achieve zero
discharge are not limited to UIC wells, and EPA has no data to suggest
that other zero discharge options, such as reuse/recycle of wastewater
for re-fracturing or sending wastewater to CWT facilities, will be
limited in the future. Without any such data, there is no basis for EPA
to conclude that an ``escape valve'' allowing for discharge to POTWs is
needed to address concerns about limited future availability of zero
discharge technology options.
Fourth, although EPA identified technologies that currently exist
to treat dissolved pollutants in UOG extraction wastewater, these TDS-
removal technologies are also likely more costly, as demonstrated by
information in the record on estimated costs of managing wastewater
under various approaches, relative to the suite of technologies that
form the zero discharge technology basis for the final rule. See DCN
SGE01186, SGE00139, SGE00070, SGE00350, SGE00279, SGE01064, SGE00283,
SGE00300, SGE00625, SGE00635, SGE00280, SGE00245, SGE00279, SGE00276,
SGE00275.
With respect to the comments suggesting that EPA establish a non-
zero numerical treatment standard in order to allow for (non-
fracturing) reuse/recycle of the wastewater, data collected for this
rulemaking demonstrate that the current technologies are capable of
reducing TDS (and other dissolved pollutants) well below 500 mg/L (see
DCN SGE01186). To the extent that these technologies or others are
developed in the future to reduce pollutants in UOG extraction
wastewater to enable them to be reused/
[[Page 41853]]
recycled for purposes other than fracturing another well, these pre-
treated wastewaters can be used directly for the other applications
rather than going to a POTW.
In addition to the PSES option of zero discharge of wastewater
pollutants, EPA also considered a ``no rule'' option, based on the
discussion previously that no UOG facilities are currently transferring
wastewater to POTWs, and given available alternative management options
such as disposal in UIC wells and reuse/recycling.
EPA did not select a ``no rule'' option for several reasons. First,
there is no national regulation that prevents or requires pretreatment
of such discharges--and, as mentioned previously, EPA is not aware of
any POTWs that are designed to treat dissolved pollutants common in UOG
extraction wastewater. Thus, as explained previously, some pollutants
of concern in UOG extraction wastewater will not be physically,
chemically, or biologically reduced by the treatment processes
typically used at POTWs, and these pollutants, if sent to POTWs, are
expected to be discharged from the POTW into receiving waters. In
addition, these pollutants can cause operational problems for the
POTW's biological treatment processes and alter the POTW's ability to
adequately remove BOD, TSS, and other pollutants for which it is
regulated. For some UOG pollutants, such as radionuclides, the data
indicate POTWs will remove some portion while discharging the remainder
(DCN SGE01028; DCN SGE01185). In these cases, some portion of the
radionuclides will partition to the POTW biosolids, which can cause the
POTW to incur increased costs to change its selected method of
biosolids management (DCN SGE00615). See Chapter D of the TDD. This
means that, absent a pretreatment standard, constituents of such
wastewater could be discharged to receiving waters or interfere with
POTW operations when other available options such as reuse/recycle and
proper disposal in a Class II UIC well better protect water quality and
aquatic communities and help further the zero discharge goal of the
CWA. CWA section 101(a)(1).
Second, as detailed in the TDD, few states have regulations or
policies that prevent discharges of pollutants in UOG extraction
wastewater to POTWs or that mandate pre-treatment prior to discharge to
a POTW. In the absence of such regulations or policies, resource-
constrained control authorities and/or POTWs that receive requests to
accept UOG extraction wastewater would be in the position of having to
evaluate whether to accept transfers of wastewater on a case-by-case
basis. It is beneficial to the states as a practical matter to
establish federal regulations that mandate this existing practice, in
order to avoid the burden for each state to potentially repeat the
effort of promulgating state-level regulations. EPA has discussed this
rule with several states that have indicated that a federal
pretreatment standard would reduce their administrative burden (DCN
SGE00762; DCN SGE00743).
Third, EPA also considered the future burden that continued lack of
pretreatment standards can impose on POTWs. The UOG extraction industry
is predicted to continue to grow in the future, resulting in the
installation, fracturing, and possible re-fracturing of hundreds of
thousands of wells. Well operators will continue to generate UOG
extraction wastewater and could request that local POTWs accept their
wastewater for discharge. In the absence of federal pretreatment
standards, POTWs can legally accept UOG extraction wastewater to the
extent that such wastewater transfers are in compliance with state and
local requirements and that resulting discharges comply with their
permits. Evaluating each potential customer (industrial user) and
developing a determination for each new UOG extraction wastewater
source on a case-by-case basis could be burdensome for POTWs. In
addition, where a POTW determines it can accept this wastewater,
complying with applicable reporting requirements could be a significant
burden to some POTWs. EPA concluded that a national-level determination
that UOG extraction wastewater contains pollutant concentrations that
could pass through POTWs, and establishment of categorical pretreatment
standards, will avoid burdening individual pretreatment Control
Authorities (e.g. POTWs) with evaluating each individual request. While
EPA does not have the information to quantify the reductions in
administrative burden that will likely result from the final rule,
states generally support EPA's position that such reductions will be
realized (DCN SGE00762; DCN SGE00743).
Fourth, history demonstrates that, absent controls preventing the
transfer of or requiring pretreatment of such wastewater, POTWs could
and did accept it. This occurred in Pennsylvania (see Chapter A and
Chapter D of the TDD), where POTWs were used to manage UOG extraction
wastewater until the state took action. This action included
promulgating new regulations requiring pretreatment. Among the drivers
behind these actions taken by Pennsylvania was that some waters were
impaired by TDS. (DCN SGE00187). To avoid future scenarios where POTWs
receive UOG extraction wastewater, it is reasonable to codify the zero
discharge practice already adopted by the industry that EPA has found
to be ``best'' in terms of pollutant removals, as well as both
technologically available and economically achievable.
2. PSNS
After considering all of the relevant factors and technology
options discussed in this preamble and in the TDD, as well as public
comments, as is the case with PSES, EPA decided to establish PSNS based
on the technologies described in Option 1. For PSNS, the final rule
establishes a zero discharge standard on all pollutants in UOG
wastewater.
As previously noted, under section 307(c) of the CWA, new sources
of pollutants into POTWs must comply with standards that reflect the
greatest degree of effluent reduction achievable through application of
the best available demonstrated control technologies. Congress
envisioned that new treatment systems could meet tighter controls than
existing sources because of the opportunity to incorporate the most
efficient processes and treatment systems into the facility design. The
technologies used to control pollutants at existing sources, disposal
in UIC wells, wastewater reuse/recycling to fracture another well, and/
or management at CWT facilities--are fully available to new sources for
the same reasons specified earlier for existing sources. They achieve
the greatest degree of effluent reduction available: zero discharge of
pollutants in UOG extraction wastewater. Furthermore, EPA has not
identified any technologies that are demonstrated to be available for
new sources that are different from those identified for existing
sources.
EPA determined that the final PSNS present no barrier to entry into
the market for new sources. EPA has no data in the record indicating
that new sources would manage their wastewater any differently than
existing sources or that the management options that are available for
existing sources would not be available for new sources. Indeed, EPA's
record demonstrates that as new UOG facilities have come into
existence, they are relying on the same current industry best practices
as existing facilities, using zero discharge technology options to
avoid sending wastewater to POTWs. See TDD Table D-1 and DCN
SGE01179.A03.
[[Page 41854]]
Accordingly, EPA found that there are no overall incremental impacts
from the final standards on new sources, as is the case for existing
sources, since the incremental costs faced by new sources generally
will be the same as those faced by existing sources. EPA projects no
incremental non-water quality environmental impacts. Therefore, EPA
established PSNS that are the same as the final PSES for this final
rule.
EPA rejected other options for PSNS for the same reasons that the
Agency rejected other options for PSES. And, as with the final PSES,
EPA determined that the final PSNS prevent pass through of pollutants
from POTWs into receiving streams and also help control contamination
of POTW sludge.
3. Pollutants Selected for Regulation Pass-Through Analysis
EPA identifies all pollutants in UOG extraction wastewater as
pollutants of concern and similarly determined all pollutants pass
through. As a result, all pollutants in UOG extraction wastewater are
directly regulated by the final pretreatment standards.
CWA section 301(b) directs EPA to eliminate the discharge of all
pollutants where it is technologically available and economically
achievable to do so (after a consideration of the factors specified in
section 304(b) of the Act). The first step in such an analysis is
typically to identify Pollutants of Concern (POCs)--or the pollutants
to be potentially regulated by the effluent guideline. For some
industries and wastestreams, not every pollutant in the wastestream may
be a pollutant of concern. For example, not every pollutant may be
present in an amount or frequency that EPA can demonstrate, using
available data, is treatable by the candidate technology. Where this is
the case, EPA may choose to establish numerical limitations for only a
subset of the pollutants present in the wastestream. For other
industries and wastestreams, the candidate technology may be capable of
controlling all pollutants present in the wastestream regardless of
amount or frequency. Where this is the case, EPA considers all
pollutants in the wastestream to be POCs. This is the case in this
final rule because, as described previously, the technology bases for
the rule: underground injection of UOG extraction wastewater, recycling
and reuse of that wastewater, or management by CWT facilities; results
in zero discharge of all pollutants from UOG facilities to POTWs.
Therefore, under this rule, all pollutants in UOG extraction wastewater
are POCs. Chapter C of the TDD provides a summary of available
characterization data for UOG extraction wastewaters.
In addition, before establishing PSES/PSNS for a pollutant, EPA
examines whether the pollutant ``passes through'' a POTW to waters of
the U.S. or interferes with the POTW operation or sludge disposal
practices. In determining whether a pollutant passes through POTWs for
these purposes,\7\ where EPA establishes non-zero pretreatment
standards, EPA generally compares the percentage of a pollutant removed
by well-operated POTWs performing secondary treatment to the percentage
removed by the BAT/NSPS technology basis. A pollutant is determined to
pass through POTWs when the median percentage removed nationwide by
well-operated POTWs is less than the median percentage removed by the
BAT/NSPS technology basis. Pretreatment standards are established for
those pollutants regulated under BAT/NSPS that pass through POTWs. In
this way, EPA is able to ensure that the standards for indirect
dischargers are equivalent to direct dischargers and that the treatment
capability and performance of POTWs is recognized and taken into
account in regulating the pollutants from indirect dischargers.
---------------------------------------------------------------------------
\7\ As explained in Section IV, the definition of pass through
for general pretreatment standards appropriately differs from the
definition in establishing national categorical pretreatment
standards as they serve different objectives.
---------------------------------------------------------------------------
For those wastestreams regulated with a zero discharge limitation
or standard, EPA typically sets the percentage removed by the
technology basis at 100 percent for all pollutants. Because a POTW
would not be able to achieve 100 percent removal of wastewater
pollutants, the percent removal at a POTW would be less than that of
the candidate zero-discharge technology. For this final rule, using
this approach, EPA determined that all pollutants pass through and that
it is appropriate to set PSES/PSNS for all pollutants to prevent pass
through.
VII. Environmental Impacts
UOG production generates significant volumes of wastewater that
need to be managed. As described in Section XII.C.2 of the proposed
rule (80 FR 18569, April 7, 2015), unconventional wells can produce
flowback volumes ranging between 210,000 and 2,100,000 gallons during
the initial flowback process.\8\ During the production phase, wells
typically produce smaller volumes of water (median flow rates range
from 200-800 gallons per day) and continue producing wastewater
throughout the life of the well (see TDD Chapter C.2).
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\8\ As explained in Chapter B of the TDD the length of the
flowback process is variable. Literature generally reports it as 30
days or less (DCN SGE00532).
---------------------------------------------------------------------------
In general, evidence of environmental impacts to surface waters
from discharges of UOG extraction wastewater is sparsely documented--as
direct discharges from onshore oil and gas extraction have been
prohibited under the existing regulations since 1979; and based on
current industry best practice, there have been few indirect discharges
of such wastewater to POTWs. Some of the environmental impacts
documented to date, such as increased DBP formation in downstream
drinking water treatment plants, resulted from wastewater pollutants
that passed untreated through POTWs in Pennsylvania (see Chapter D of
the TDD).
A. Pollutants
As described in Section XII.D of the proposed rule (80 FR 18569,
April 7, 2015), high concentrations of TDS are common in UOG extraction
wastewater. Inorganic constituents leaching from geologic formations,
such as sodium, potassium, bromide, calcium, fluoride, nitrate,
phosphate, chloride, sulfate, and magnesium, represent most of the TDS
in UOG extraction wastewater. Produced water can also include barium,
radium, and strontium. Based on available data, TDS cations (positively
charged ions) in UOG extraction wastewater are generally dominated by
sodium and calcium, and the anions (negatively charged ions) are
dominated by chloride (DCN SGE00284; See also Chapter C of the TDD).
TDS concentrations vary among the UOG formations and can exceed 350,000
mg/L. For comparison, sea water contains approximately 35,000 mg/L TDS.
B. Impacts From the Discharge of Pollutants Found in UOG Extraction
Wastewater
As explained in Chapter D of the TDD, POTWs are typically designed
to treat organic waste, total suspended solids, and constituents
responsible for biochemical oxygen demand, not to treat TDS. When
transfers of UOG extraction wastewater to POTWs were occurring in
Pennsylvania, these POTWs, lacking adequate TDS removal processes,
diluted UOG extraction wastewaters with other sewage flows and
discharged TDS-laden effluent into local streams and rivers. POTWs not
sufficiently treating TDS in UOG extraction wastewater were a suspected
source of elevated TDS levels in the Monongahela River in 2009 (DCN
[[Page 41855]]
SGE00525). Also see Chapter D of the TDD for additional examples.
In addition to UOG wastewater pollutants passing through POTWs,
other industrial discharges of inadequately treated UOG extraction
wastewater have also been associated with in-stream impacts. One study
of discharges from a CWT facility in western Pennsylvania that treats
UOG extraction wastewater examined the water quality and isotopic
compositions of discharged effluents, surface waters, and stream
sediments (DCN SGE00629).\9\ The facility's treatment process includes
settling, precipitation, and fine screening, but does not remove TDS
(DCN SGE00525). The study found that the discharge of the effluent from
the CWT facility increased downstream concentrations of chloride and
bromide above background levels. The chloride concentrations 1.7
kilometers downstream of the treatment facility were two to ten times
higher than chloride concentrations found in similar reference streams
in western Pennsylvania. Radium 226 levels in stream sediments at the
point of discharge were approximately 200 times greater than upstream
and background sediments.
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\9\ Discharges from CWT facilities are subject to ELGs in 40 CFR
part 437. However, the effect of discharges of treated oil and gas
wastewaters from CWT facilities that lack treatment for TDS is
similarly representative of POTWs.
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C. Impact on Surface Water Designated Uses
UOG extraction wastewater TDS concentrations are typically high
enough, that if discharged untreated to surface water, affect adversely
a number of designated uses of the surface water, including drinking
water source, aquatic life support, livestock watering, irrigation, and
industrial use.
1. Drinking Water Uses
Available data indicate that the concentration of TDS in UOG
extraction wastewaters can often significantly exceed recommended
drinking water concentrations. Because TDS concentrations in drinking
water source waters are typically well below the recommended levels for
drinking, few drinking water treatment facilities have technologies to
remove TDS. Two published standards for TDS in drinking water include
the U.S. Public Health Service recommendation and EPA's secondary
maximum contaminant level recommendation that TDS in drinking water
should not exceed 500 mg/L. High concentrations of TDS in drinking
water primarily degrade its taste rather than pose a human health risk.
Taste surveys found that water with less than 300 mg/L TDS is
considered excellent, and water with TDS above 1,100 mg/L is
unacceptable (DCN SGE00939). The World Health Organization dropped its
health-based recommendations for TDS in 1993, instead retaining 1,000
mg/L as a secondary standard for taste (DCN SGE00947).
Bromide in UOG wastewater discharges can adversely affect surface
waters used as drinking water supplies. Recent studies of industrial
discharges that contain bromide upstream of drinking water utilities'
intakes demonstrate that with bromides present in drinking water source
waters at increased levels, carcinogenic disinfection by-products
(brominated DBPs, in particular trihalomethanes (THMs)) can form at the
drinking water utility (DCN SGE01329). DBPs have been shown to have
both adverse human health and ecological affects. Studies also
demonstrate that bromide in UOG wastewaters treated at POTWs can lead
to the formation of DBPs within the POTW. EPA reviewed a study of a
POTW accepting UOG wastewater that unintentionally created DBPs due to
insufficient removal of bromide and other UOG wastewater constituents
(DCN SGE00535; DCN SGE00587). The study found that UOG extraction
wastewaters contain various inorganic and organic DBP precursors that
can react with disinfectants used by POTWs to promote the formation of
DBPs, or alter speciation of DBPs, particularly brominated-DBPs, which
are suspected to be among the more toxic DBPs (DCN SGE00535; DCN
SGE00985). See Chapter D of the TDD for further discussion of DBP
formation associated with UOG extraction wastewaters.
2. Aquatic Life Support Uses
TDS and its accompanying salinity play a primary role in the
distribution and abundance of aquatic animal and plant communities.
High levels of TDS can impact aquatic biota through increases in
salinity, loss of osmotic balance in tissues, and toxicity of
individual ions. Increases in salinity have been shown to cause shifts
in biotic communities, limit biodiversity, exclude less-tolerant
species and cause acute or chronic effects at specific life stages (DCN
SGE00946). A detailed study of plant communities associated with
irrigation drains reported substantial changes in marsh communities, in
part because of an increase in dissolved solids (DCN SGE00941).
Observations over time indicate a shift in plant community coinciding
with increases in dissolved solids from estimated historic levels of
270 to 1170 mg/L, as species that are less salt tolerant such as
coontail (Ceratophyllus demersum) and cattail (Typha sp.) were nearly
eliminated. A related study found that lakes with higher salinity
exhibit lower aquatic biodiversity, with species distribution also
affected by ion composition (DCN SGE00940).
Aquatic toxicity is dependent on the ionic composition of the
mixture. Salts, specifically sodium and chloride, are the majority
(i.e., much greater than 50 percent) of TDS in UOG produced water (DCN
SGE00284). Typical chloride concentrations in UOG wastewater have been
measured at concentrations up to 130,000 mg/L (see TDD Table C11).
Macroinvertebrates, such as fresh water shrimp and aquatic insects that
are a primary prey of many fish species, have open circulatory systems
that are especially sensitive to pollutants like chloride. Based on
laboratory toxicity data from EPA's 1988 chloride criteria document and
more recent non-EPA studies, chloride acute effect concentrations for
invertebrates ranged from 953 mg/L to 13,691 mg/L. Chloride chronic
effect concentrations for invertebrates ranged from 489 mg/L to 556 mg/
L. In addition to the laboratory data, EPA also reviewed data from a
2009 Pennsylvania Department of Environmental Protection violation
report documenting a fish kill attributed to a spill of diluted
produced water in Hopewell Township, PA. The concentration of TDS at
the location of the fish kill was as high as 7,000 mg/L. While not
related to UOG extraction wastewater, negative impacts of high TDS,
including fish kills, were documented during 2009 at Dunkard Creek
located in Monongalia County, Pennsylvania. (DCN SGE00001 and DCN
SGE00001.A01)
3. Livestock Watering Uses
POTW discharges to surface waters containing high concentrations of
TDS can impact downstream uses for livestock watering. High TDS
concentrations in water sources for livestock watering can adversely
affect animal health by disrupting cellular osmotic and metabolic
processes (DCN SGE01053). Domestic livestock, such as cattle, sheep,
goats, horses, and pigs have varying degrees of sensitivity to TDS in
drinking water.
4. Irrigation Uses
If UOG extraction wastewater discharges to POTWs increase TDS
concentrations in receiving streams, downstream irrigation uses of that
surface water can be negatively affected.
[[Page 41856]]
Elevated TDS levels can limit the usefulness of water for irrigation.
Excessive salts affect crop yield in the short term, and the soil
structure in the long term. Primary direct impacts of high salinity
water on plant crops include physiological drought, increased osmotic
potential of soil, specific ion toxicity, leaf burn, and nutrient
uptake interferences (DCN SGE00938). In general, for various classes of
crops the salinity tolerance decreases in the following order: forage
crops, field crops, vegetables, fruits.
In addition to short-term impacts to crop plants, irrigating with
high TDS water can result in gradual accumulation of salts or sodium in
soil layers and eventual decrease in soil productivity. The
susceptibility of soils to degradation is dependent on the soil type
and structure. Sandy soils are less likely than finely textured soils
to accumulate salts or sodium. Soils with a high water table or poor
drainage are more susceptible to salt or sodium accumulation. The most
common method of estimating the suitability of a soil for crop
production is through calculation of its sodicity as estimated by the
soil's sodium absorption ratio (SAR). The impact of irrigation water
salinity on crop productivity is a function of both the SAR value and
the electrical conductivity. The actual field-observed impacts are very
site-specific depending on the soil and crop system (DCN SGE00938).
5. Industrial Uses
POTW discharges to surface waters are often upstream of industrial
facilities that withdraw surface waters for various cooling and process
uses. High concentration of TDS can adversely affect industrial
applications requiring the use of water in cooling tower operations,
boiler feed water, food processing, and electronics manufacturing.
Concentrations of TDS above 500 mg/L result in excessive scaling in
water pipes, water heaters, boilers and household appliances (DCN
SGE00174). Depending on the industry, TDS in intake water can interfere
with chemical processes within the plant. Some industries requiring
ultrapure water, such as semi-conductor manufacturing facilities, are
particularly sensitive to high TDS levels due to the treatment cost for
the removal of TDS.
VIII. Regulatory Implementation of the Standard
The requirements in this rule apply to discharges from UOG
facilities through local pretreatment programs under CWA section 307.
Pretreatment standards promulgated under section 307(b) and (c) are
self-implementing. See CWA section 307(d). The duty to comply with such
standards is independent of any state or a municipal control authority
permit or control mechanism containing the standards and associated
reporting requirements.
A. Implementation Deadline
Because the requirements of the final rule are based on current
practice, EPA determined that the PSES/PSNS standards apply on the
effective date of the final rule, August 29, 2016.
B. Upset and Bypass Provisions
For discussion of upset and bypass provisions, see the proposed
rule (80 FR 18569, April 7, 2015).
C. Variances and Modifications
For discussion of variances and modifications, see the proposed
rule (80 FR 18569, April 7, 2015).
IX. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action and was
therefore not submitted to the Office of Management and Budget (OMB)
for review.
B. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act. This final rule codifies
current industry practice and does not impose any additional reporting
requirements.
C. Regulatory Flexibility Act
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the Regulatory
Flexibility Act. In making this determination, the impact of concern is
any significant adverse economic impact on small entities. An agency
may certify that a rule will not have a significant economic impact on
a substantial number of small entities if the rule relieves regulatory
burden, has no net burden or otherwise has a positive economic effect
on the small entities subject to the rule.
For purposes of assessing the impacts of the final rule on small
entities, small entity is defined as: A small business that is
primarily engaged in Crude Petroleum and Natural Gas Extraction and
Natural Gas Liquid Extraction by NAICS code 211111 and 211112 with
fewer than 500 employees (based on Small Business Administration size
standards). The small entities that are subject to the requirements of
this final rule are small businesses that engage in UOG extraction as
defined in Section V, of this preamble. No small businesses will
experience a significant economic impact because the final rulemaking
codifies current industry practice and does not impose any new
requirement that is not already being met by the industry. I have
therefore concluded that this action will have no net regulatory burden
for all directly regulated small entities.
D. Unfunded Mandates Reform Act
This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. The action imposes no incremental enforceable duty
on any state, local or tribal governments or the private sector.
E. Executive Order 13132: Federalism
This action does not have federalism implications. It does not
alter the basic state-federal scheme established in the CWA under which
EPA authorizes states to carry out the NPDES permit program. It will
not have substantial direct effect on the states, on the relationship
between the national government and the states, or on the distribution
of power and responsibilities among the various levels of government.
Although this order does not apply to this action, as explained in
Section VI, EPA coordinated closely with states through a workgroup, as
well as outreach efforts to pretreatment coordinators and pretreatment
authorities.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications as specified in
Executive Order 13175. It will not have substantial direct effects on
tribal governments, on the relationship between the Federal government
and Indian tribes, or on the distribution of power and responsibilities
between the Federal government and Indian tribes. The final rule
contains no Federal mandates for tribal governments and does not impose
any enforceable duties on tribal governments. Thus, Executive Order
13175 does not apply to this action.
Although Executive Order 13175 does not apply to this action, the
EPA coordinated with tribal officials early in
[[Page 41857]]
the process of developing this rule to enable them to have meaningful
and timely input into its development. EPA coordinated with federally
recognized tribal governments in May and June of 2014, sharing
information about the UOG pretreatment standards proposed rulemaking
with the National Tribal Caucus and the National Tribal Water Council.
EPA continued the outreach effort by collecting data about UOG
operations on tribal reservations, UOG operators that are affiliated
with Indian tribes, and POTWs owned or operated by tribes that can
accept industrial wastewaters (see DCN SGE00785). Based on this
information, there are no tribes operating UOG wells that discharge
wastewater to POTWs nor are there any tribes that own or operate POTWs
that accept industrial wastewater from UOG facilities; therefore, this
final rule will not impose any costs on tribes.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
This action is not subject to Executive Order 13045 because it is
not economically significant as defined in Executive Order 12866, and
because the EPA does not believe the environmental health or safety
risks addressed by this action present a disproportionate risk to
children. This action codifies current industry practice; therefore
there is no change in environmental health or safety risks.
H. Executive Order 13211: Energy Effects
This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act
This final rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
The final rule will neither increase nor decrease environmental
protection (as described in Section VI) as it codifies current industry
practice; therefore, EPA determined that the human health or
environmental risk addressed by this action will not have potential
disproportionately high and adverse human health or environmental
effects on minority, low-income or indigenous populations. EPA
requested comment on this E.O. in the proposal (80 FR 18579; April 7,
2015) and received no comments.
K. Congressional Review Act (CRA)
This action is subject to the CRA, and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).
List of Subjects in 40 CFR Part 435
Environmental protection, Pretreatment, Waste treatment and
disposal, Water pollution control, Unconventional oil and gas
extraction.
Dated: June 13, 2016.
Gina McCarthy,
Administrator.
Therefore, 40 CFR part 435 is amended as follows:
PART 435--OIL AND GAS EXTRACTION POINT SOURCE CATEGORY
0
1. The authority citation for part 435 is revised to read as follows:
Authority: 33 U.S.C. 1251, 1311, 1314, 1316, 1317, 1318, 1342
and 1361.
Subpart C--Onshore Subcategory
0
2. Add Sec. 435.33 to subpart C to read as follows:
Sec. 435.33 Pretreatment standards for existing sources (PSES).
(a) PSES for wastewater from unconventional oil and gas extraction.
Except as provided in 40 CFR 403.7 and 403.13, any existing source
subject to this section, must achieve the following pretreatment
standards for existing sources (PSES).
(1) There shall be no discharge of wastewater pollutants associated
with production, field exploration, drilling, well completion, or well
treatment for unconventional oil and gas extraction (including, but not
limited to, drilling muds, drill cuttings, produced sand, produced
water) into publicly owned treatment works.
(2) For the purposes of this section,
(i) Unconventional oil and gas means crude oil and natural gas
produced by a well drilled into a shale and/or tight formation
(including, but not limited to, shale gas, shale oil, tight gas, tight
oil).
(ii) Drill cuttings means the particles generated by drilling into
subsurface geologic formations and carried out from the wellbore with
the drilling fluid.
(iii) Drilling mud means the circulating fluid (mud) used in the
rotary drilling of wells to clean and condition the hole and to
counterbalance formation pressure.
(iv) Produced sand means the slurried particles used in hydraulic
fracturing, the accumulated formation sands, and scales particles
generated during production. Produced sand also includes desander
discharge from the produced water waste stream, and blowdown of the
water phase from the produced water treating system.
(v) Produced water means the fluid brought up from the hydrocarbon-
bearing strata during the extraction of oil and gas, and includes,
where present, formation water, injection water, and any chemicals
added downhole or during the oil/water separation process.
(b) PSES for Wastewater from Conventional Oil and Gas Extraction.
[Reserved]
0
3. Add Sec. 435.34 to subpart C to read as follows:
Sec. 435.34 Pretreatment standards for new sources (PSNS).
(a) PSNS for wastewater from unconventional oil and gas extraction.
Except as provided in 40 CFR 403.7 and 403.13, any new source with
discharges subject to this section must achieve the following
pretreatment standards for new sources (PSNS).
(1) There shall be no discharge of wastewater pollutants associated
with production, field exploration, drilling, well completion, or well
treatment for unconventional oil and gas extraction (including, but not
limited to, drilling muds, drill cuttings, produced sand, produced
water) into publicly owned treatment works.
(2) For the purposes of this section, the definitions of
unconventional oil and gas, drill cuttings, drilling muds, produced
sand, and produced water are as specified in Sec. 435.33(b)(2)(i)
through (v).
(b) PSNS for Wastewater from Conventional Oil and Gas Extraction.
[Reserved]
0
4. Add subpart H to read as follows:
Subpart H--Coalbed Methane Subcategory [Reserved]
[FR Doc. 2016-14901 Filed 6-27-16; 8:45 am]
BILLING CODE 6560-50-P