increase pollutant discharges from current industry best practices.
Such an option would not fulfill the CWA requirement to establish
limitations based on ``Best Available Technology Economically
Achievable'' (CWA section 301(b)(2)(A)), or the CWA goals of
eliminating the discharge of pollutants into navigable waters (CWA
section 101(a)(1)).
    Third, 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 (DCN SGE00613). In fact, industry
has been managing oil and gas extraction wastewater through underground
injection for decades. In recent years, industry has greatly expanded
its knowledge about the ability to re-use UOG flowback and long-term
produced water (the major contributors to UOG extraction wastewater by
volume) in fracturing another well. 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 (see TDD Chapter
D.2).
    Fourth, EPA identified technologies that currently exist to treat
dissolved pollutants in UOG extraction wastewater. Relative to
underground injection and reuse/recycling to fracture another well (the
basis for the preferred option EPA proposes), these technologies are
costly, would result in more pollutant discharges, and are energy
intensive. While EPA did not attempt to calculate a numerical standard
for TDS, data collected for this proposed rulemaking demonstrate that
the current technologies are capable of reducing TDS (and other
dissolved pollutants) well below 500 mg/L. 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 for purposes
other than fracturing another well, these pre-treated wastewaters can
be used directly for the other applications without going through a
POTW.\23\
---------------------------------------------------------------------------

    \23\ As a point of clarification, except in certain geographic
areas, these wastewaters would remain subject to the requirements in
the Onshore Subcategory that require no discharge of pollutants to
waters of the U.S. (40 CFR 435.30).
---------------------------------------------------------------------------

c. Conventional Oil and Gas Wastewater
    As explained in Section VIII., while the existing oil and gas
regulation applies to both conventional and UOG extraction (except
coalbed methane), the proposed rule would add pretreatment standards
only for facilities engaged in oil and gas extraction from UOG sources
that send their discharges to POTWs. EPA proposes to reserve standards
for conventional oil and gas extraction for possible future rulemaking,
if appropriate. This is consistent with EPA's stated scope throughout
the development of this proposed rule. See specific comment
solicitation on conventional oil and gas extraction wastewaters in
Section VII.

B. Pollutants of Concern

    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.

C. POTW Pass Through Analysis

    Sections 307(b) and (c) of the CWA authorize EPA to promulgate
pretreatment standards for pollutants that are not susceptible to
treatment by POTWs or which would interfere with the operation of
POTWs. EPA looks at a number of factors in selecting the technology
basis for pretreatment standards for existing and new sources. These
factors are generally the same as those considered in establishing the
direct discharge technology basis. However, unlike direct dischargers
whose wastewater will receive no further treatment once it leaves the
facility, indirect dischargers send their wastewater to POTWs for
further treatment.
    Therefore, 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 biosolids disposal
practices. In determining whether a pollutant would pass through POTWs
for these purposes, EPA generally compares the percentage of a
pollutant removed by well-operated POTWs performing secondary treatment
to the percentage removed by a candidate 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 candidate technology basis. Pretreatment standards are
established for those pollutants regulated under the direct discharge
level of control (typically BAT/NSPS) that passes through. In addition,
EPA can regulate pollutants that do not pass through but otherwise
interfere with POTW operations or biosolids disposal practices. This
approach to the definition of 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 POTWs be recognized and taken
into account in regulating the discharge of pollutants from indirect
dischargers.
    Historically, EPA's primary source of POTW removal data is its 1982
``Fate of Priority Pollutants in Publicly Owned Treatment Works'' (also
known as the 50 POTW Study) (see DCN SGE00765). The 50 POTW study
presents data on the performance of 50 POTWs achieving secondary
treatment in removing certain toxic pollutants. While the 50 POTW study
demonstrates a wide variability in the effectiveness of POTWs in
removing toxic pollutants, it demonstrates that POTWs remove these
pollutants by less

than 100%. Although this study does not contain information on
pollutant removals for TDS, as explained earlier, secondary treatment
technologies are generally understood to be ineffective at removing TDS
and as such little to no TDS removals are likely to occur at POTWs
through secondary treatment (DCN SGE00011; DCN SGE00600). While the
POTW study also does not contain information for other pollutants that
may be present in UOG extraction wastewater, it is reasonable for EPA
to conclude that removal of UOG extraction wastewater pollutants by a
well-operated POTW would be less than 100%, the percentage removal by
the candidate technology basis for the proposed rule, and therefore
would if discharged to a POTW ``pass through'' the POTW, as the term
applies under the CWA, into waters of the U.S.

XV. Environmental Impacts

    UOG production generates significant volumes of wastewater that
need to be managed. As described in Section XII.C.2, wells can produce
flowback volumes ranging between 210,000 and 2,100,000 gallons during
the initial flowback process.\24\ 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.
---------------------------------------------------------------------------

    \24\ As explained in the TDD (Chapter B) 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.
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 (TDD, Chapter D.5).

A. Pollutants

    As described in Section XII.D., high concentrations of TDS are
common in UOG extraction wastewater. As shown in Table XII-2. (in
Section XII.D.), major 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. TDS in 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). TDS
concentrations vary among the UOG formations. Table XII-1. (in Section
XII.D.), presents the varying TDS concentrations in tight and shale oil
and gas formations. The highest median TDS concentration (370,000 mg/L)
is found in the Pearsall shale gas formation. For comparison, sea water
contains approximately 35,000 mg/L TDS.

B. Impacts From the Discharge of Pollutants Found in UOG Extraction
Wastewater

    Conventional POTW treatment operations are designed primarily to
treat organic waste and remove total suspended solids and constituents
responsible for biochemical oxygen demand, not to treat waters with
high 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 SGE00525). Also see TDD, Chapter D.5 for additional examples.
    In addition to UOG wastewater pollutants passing through POTWs,
other industrial discharges of inadequately treated UOG extraction
wastewater pollutants have also been associated with in-stream impacts.
One study reviewed by EPA 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).\25\ 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. EPA intends to further study the frequency and
magnitude of such impacts from CWTs.
---------------------------------------------------------------------------

    \25\ Discharges from CWT facilities are subject to ELGs in 40
CFR part 437 and would not be subject to the proposed rule. However,
the effect of discharges of treated oil and gas wastewaters from CWT
facilities that lack high level treatment is similarly
representative of POTWs.
---------------------------------------------------------------------------

C. Impact on Surface Water Designated Uses

    UOG extraction wastewater TDS levels are high enough, if discharged
untreated to surface water, to affect adversely a number of designated
uses of surface water, including drinking water, aquatic life support,
livestock watering, irrigation, and industrial use.
1. Drinking Water Uses
    Available data indicate the levels of TDS in UOG extraction
wastewaters can often significantly exceed recommended drinking water
concentrations. Because TDS concentrations in drinking water sources
are typically well below the recommended drinking water levels, 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).
    EPA also reviewed a study concerning unintentional creation of
harmful DBPs due to insufficient removal of bromide and other UOG
wastewater constituents by POTWs accepting UOG extraction wastewaters
(DCN SGE00535; DCN SGE00587). DBPs have been shown to have both adverse
human health and ecological affects. 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). These precursors are a concern for
drinking water managers wherever they can enter raw water intakes. See
TDD, Chapter D.5 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).
    It is often a specific ion concentration in TDS that is responsible
for adverse effects to aquatic ecosystems. For example, a TDS
concentration of 2,000 mg/L with chloride as the primary anionic
constituent is acutely toxic to aquatic life, but the same TDS
concentration composed primarily of sulfate is nontoxic. Sodium
chloride accounts for about 50 percent of the TDS typically found in
UOG extraction wastewater. As reported in Table XII-2 (in Section
XII.D.), chloride has been measured at concentrations up to 230,000 mg/
L. 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 studies, invertebrate sensitivity to chloride
acute effect concentrations ranged from 953 mg/L to 13,691 mg/L.
Chronic effect concentrations of chloride 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. 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)
    EPA has published chemical-specific national recommended water
quality criteria for some of the TDS constituents in UOG extraction
wastewater, such as barium, chloride, manganese, and iron, based on a
variety of human health or ecological benchmarks. A review of state and
tribal water quality standards in 2012 indicated that 26 states had
adopted a numeric or narrative criterion for TDS, either for state-wide
or site-specific application (DCN SGE00945). The TDS criteria levels
and the designated uses they are intended to protect vary greatly from
state to state. For example, Alaska has a criterion of 1,500 mg/L TDS
to protect aquatic life; Mississippi has a criterion of 750 mg/L
monthly average for protection of fish, wildlife and recreation
criteria, and Illinois has a statewide 1,000 mg/L TDS criterion for
aquatic life and a 1,500 mg/L TDS criterion for secondary contact
recreation and indigenous aquatic life. TDS criteria adopted
specifically for the protection of aquatic life have been developed for
at least 16 of the 26 states, with some criteria applying only to
specific waterbodies. Oregon has the most stringent TDS criterion using
a standard of 100 mg/L for all freshwater streams and tributaries in
order to protect aquatic life, public water use, agriculture, and
recreation.
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 as shown in Table XV-1. Sheep seem to be more tolerant
of saline water than most domestic species, but will only drink it if
introduced to the saline water over a period of several weeks (DCN
SGE00937).

                          Table XV-1--Tolerances of Livestock to TDS in Drinking Water
----------------------------------------------------------------------------------------------------------------
                                                                  Total Dissolved Solids (TDS) (mg/L)
                                                     -----------------------------------------------------------
                                                                                Loss of production
                                                                           Animals can have    and a decline in
                                                                                initial        animal condition
                                                                             reluctance to     and health would
                      Livestock                           No adverse      drink or there can  be expected. Stock
                                                          effects on       be some scouring,  can tolerate these
                                                       animals  expected   but stock should    levels for short
                                                                          adapt without loss      periods if
                                                                            of  production        introduced
                                                                                gradually
----------------------------------------------------------------------------------------------------------------
Beef cattle.........................................             0-4,000         4,000-5,000        5,000-10,000
Dairy cattle........................................             0-2,400         2,400-4,000         4,000-7,000
Sheep...............................................             0-4,000        4,000-10,000       10,000-13,000
Horses..............................................             0-4,000         4,000-6,000         6,000-7,000
Pigs................................................             0-4,000         4,000-6,000         6,000-8,000
Poultry.............................................             0-2,000         2,000-3,000         3,000-4,000
----------------------------------------------------------------------------------------------------------------
Source: Australia and New Zealand Water Quality Guidelines 2000. Chapter 3 Primary Industries--9.3 Livestock
  drinking water guidelines (DCN SGE00937).

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. 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.
    The suitability of water for irrigation is classified using several
different measurements, including TDS and electrical conductivity (EC).
Table XV-2. shows a classification of TDS concentrations for irrigation
suitability.

     Table XV-2--Permissible Limits for Classes of Irrigation Water
------------------------------------------------------------------------
                                           Concentrations of TDS
                                 ---------------------------------------
         Class of water               Electrical
                                   conductivity \a\   TDS by gravimetric
                                        (dS/m)               (mg/L)
------------------------------------------------------------------------
Class 1. Excellent..............               0.250                 175
Class 2. Good...................         0.250-0.750             175-275
Class 3. Permissible \b\........           0.750-2.0           525-1,400
Class 4. Doubtful \c\...........             2.0-3.0         1.400-2,100
Class 5. Unsuitable \c\.........                 3.0              >2,100
------------------------------------------------------------------------
a = TDS (mg/L) [ap] Electrical Conductivity (EC) (deci-Siemen/meter (dS/
  m)) x 640 for EC < 5 dS/m.
b = leaching needed if used.
c = good drainage needed and sensitive plants will have difficulty
  obtaining stands.
Source: Fipps (2003) (DCN SGE00936).

    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 SAR value is calculated by
the equation: \26\
[GRAPHIC] [TIFF OMITTED] TP07AP15.012

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 soil
and crop system. (DCN SGE00938)
---------------------------------------------------------------------------

    \26\ The variables in the equation are defined as follows:
[Na\+\]-Sodium concentration (mg/L); [Ca\2+\]-Calcium concentration
(mg/L); [Mg\2+\]-Magnesium concentration (mg/L).
---------------------------------------------------------------------------

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 levels 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 corrosivity, scaling, and
sedimentation in water pipes, water heaters, boilers and household
appliances. 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.

XVI. Non-Water Quality Environmental Impacts Associated With the
Proposed Rule

    Because the elimination or reduction of one form of pollution can
create or aggravate other environmental problems, EPA considers non-
water quality environmental impacts (including energy impacts) that can
result from the implementation of proposed regulations. EPA evaluated
the potential impact of the proposed pretreatment standards on air
emissions, solid waste generation, and energy consumption.
    The proposed PSES/PSNS would prohibit the discharge to POTWs of
wastewater pollutants associated with UOG extraction. Because EPA knows
of no POTWs that are currently accepting UOG extraction wastewater, the
proposed PSES will require no changes in current industry wastewater
management practices and, consequently, will have no incremental
impacts on air emissions, solid waste generation, or energy
consumption. Based on the reasoning that new sources will follow
current industry practice, EPA projects no incremental non-water
quality environmental impacts associated with PSNS.

XVII. Implementation

A. Implementation Deadline

    Because the requirements of the proposed rule are based on current
practice, EPA proposes that the PSES/NSPS standards based on the
regulatory options being proposed apply on the effective date of the
final rule.

B. Upset and Bypass Provisions

    A ``bypass'' is an intentional diversion of waste streams from any
portion of a treatment facility. An ``upset'' is an exceptional
incident in which there is unintentional and temporary noncompliance
with technology-based permit effluent limitations because of factors
beyond the reasonable control of the permittee. EPA's regulations for
indirect dischargers concerning bypasses and upsets are set forth at 40
CFR 403.16 and 403.17.

C. Variances and Modifications

    The CWA requires application of effluent limitations established
pursuant to section 304 for direct dischargers and section 307 for all
indirect dischargers. However, the statute provides for the
modification of these national requirements in a limited number of
circumstances. Moreover, the Agency

has established administrative mechanisms to provide an opportunity for
relief from the application of the national pretreatment standards for
categories of existing sources.
    EPA can develop pretreatment standards different from the otherwise
applicable requirements for an individual existing discharger if it is
fundamentally different with respect to factors considered in
establishing the standards applicable to the individual discharger.
Such a modification is known as a ``fundamentally different factors''
(FDF) variance. See 40 CFR 403.13. EPA, in its initial implementation
of the effluent guidelines program, provided for the FDF modifications
in regulations. These were variances from the BCT effluent limitations,
BAT limitations for toxic and nonconventional pollutants, and BPT
limitations for conventional pollutants for direct dischargers. FDF
variances for toxic pollutants were challenged judicially and
ultimately sustained by the Supreme Court in Chemical Manufacturers
Association v. Natural Resources Defense Council, 479 U.S. 116, 124
(U.S. 1985). FDF variances, however, are not available for new sources.
E.I. Dupont v. Train, 430 U.S. 112, 138 (U.S. 1977).
    Subsequently, in the Water Quality Act of 1987, Congress added new
CWA section 301(n). This provision explicitly authorizes modifications
of the otherwise applicable BAT effluent limitations or categorical
pretreatment standards if a discharger is fundamentally different with
respect to the factors specified in CWA section 304 or 403 (other than
costs) from those considered by EPA in establishing the effluent
limitations or pretreatment standards. CWA section 301(n) also defined
the conditions under which EPA can establish alternative requirements.
Under section 301(n), an application for approval of a FDF variance
must be based solely on (1) information submitted during rulemaking
raising the factors that are fundamentally different or (2) information
the applicant did not have an opportunity to submit. The alternate
limitation must be no less stringent than justified by the difference
and must not result in markedly more adverse non-water quality
environmental impacts than the national limitation or standard.
    The legislative history of section 301(n) underscores the necessity
for the FDF variance applicant to establish eligibility for the
variance. EPA's regulations at 40 CFR 403.13 are explicit in imposing
this burden upon the applicant. The applicant must show that the
factors relating to the discharge controlled by the applicant's permit
that are claimed to be fundamentally different are, in fact,
fundamentally different from those factors considered by EPA in
establishing the applicable pretreatment standards. In practice, very
few FDF variances have been granted for past ELGs. An FDF variance may
be available to an existing source subject to the proposed PSES, but an
FDF variance is not available to a new source that would be subject to
PSNS.

XVIII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review

    This action is a ``significant regulatory action'' under the terms
of Executive Order 12866 (58 FR 51735, October 4, 1993). Accordingly,
EPA submitted this action to the Office of Management and Budget (OMB)
for review under Executive Orders 12866 and 13563 (76 FR 3821, January
21, 2011) and any changes made in response to OMB recommendations have
been documented in the docket for this action.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
Burden is defined at 5 CFR 1320.3(b). This proposal would codify
current industry practice and would not impose any additional reporting
requirements.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any proposed rule that
would be subject to notice and comment rulemaking requirements under
the Administrative Procedure Act or any other statute unless the agency
certifies that the rule will not have a significant economic impact on
a substantial number of small entities. Small entities include small
businesses, small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of the proposed rule on small
entities, small entity is defined as: (1) 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).
    After considering the economic impacts of the proposed rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. The small
entities that would be subject to the requirements of this proposed
rule are small businesses that engage in UOG extraction as defined in
Section XI. No small businesses will experience an impact because the
proposed rulemaking does not impose any new requirement that is not
already being met by the industry.

D. Unfunded Mandates Reform Act

    This proposed rule does not contain a Federal mandate that can
result in expenditures of $100 million or more for state, local, and
tribal governments, in the aggregate, or the private sector in any one
year. As explained in Section VI.C., this proposed rule has no costs.
Thus, this proposed rule would not be subject to the requirements of
sections 202 or 205 of the Unfunded Mandates Reform Act (UMRA).
    This proposed rule also would not be subject to the requirements of
section 203 of UMRA because it contains no regulatory requirements that
might significantly or uniquely affect small governments. EPA has not
identified any oil and gas facilities that are owned by small
governments.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have
substantial direct effects 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, as
specified in Executive Order 13132. The proposed rule would not alter
the basic state-federal scheme established in the CWA under which EPA
authorizes states to carry out the NPDES permit program. EPA expects
the proposed rule would have little effect on the relationship between,
or the distribution of power and responsibilities among, the federal
and state governments. Thus, Executive Order 13132 does not apply to
this action. Although this order does not apply to this action, as
explained in Section IX., 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 (65 FR 67249, November 9, 2000). 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
proposed 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, EPA
coordinated with tribal officials in developing this action. 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. As part of this outreach effort, EPA collected
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 proposed rule will not impose any costs on tribes.

G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks

    E.O. 13045 (62 FR 19885, April 23, 1997) applies to rules that are
economically significant according to E.O. 12866 and involve a health
or safety risk that can disproportionately affect children. This
proposed action would not be subject to E.O. 13045 because it is
estimated to cost less than $100 million and does not involve a safety
or health risk that can have disproportionately negative effects on
children.

H. Executive Order 13211: Energy Effects

    This proposed action is not subject to Executive Order 13211,
because it not a ``significant energy action'' as defined in Executive
Order 13211, ``Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This
action will not have a significant adverse effect on the supply,
distribution, or use of energy, as described in Section XVI. of the
proposed rule.

I. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
    This proposed rulemaking does not involve technical standards.
Therefore, EPA is not considering the use of any voluntary consensus
standards.

J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the U.S.
    EPA determined that this proposed rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
affect the level of protection provided to human health or the
environment. The proposed rule changes the control technology required
but will neither increase nor decrease environmental protection (as
described in Section VII.C.).
    EPA welcomes comments on this aspect of the proposed rulemaking
and, specifically, invites the public to identify potential
environmental justice considerations associated with this proposed
regulation.

List of Subjects in 40 CFR Part 435

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

    Dated: March 31, 2015.
Gina McCarthy,
Administrator.

    Therefore, it is proposed that 40 CFR part 435 be amended as
follows:

PART 435--OIL AND GAS EXTRACTION POINT SOURCE CATEGORY

0
1. The authority citation for part 435 continues to read as follows:

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

0
2. Add Sec.  435.33 to read as follows:

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

    (a) PSES for Wastewater from Conventional Oil and Gas Extraction.
[Reserved]
    (b) 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 (e.g., 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 low porosity, low permeability
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 muds 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 water (brine) brought up from the
hydrocarbon-bearing strata during the extraction of oil and gas, and
can include formation water, injection water, and any chemicals added

downhole or during the oil/water separation process.
0
3. Add Sec.  435.34 to read as follows:

Sec.  435.34  Pretreatment standards of performance for new sources
(PSNS).

    (a) PSNS for Wastewater from Conventional Oil and Gas Extraction.
[Reserved]
    (b) 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 (e.g., 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).
0
4. Add subpart H to read as follows:

Subpart H--Coalbed Methane Subcategory [Reserved]

[FR Doc. 2015-07819 Filed 4-6-15; 8:45 a.m.]
 BILLING CODE 6560-50-P