Importations of Water Into and Exportations of Water From the Delaware River Basin; Discharges of Wastewater From High Volume Hydraulic Fracturing and Related Activities, 66250-66255 [2021-24152]
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Federal Register / Vol. 86, No. 222 / Monday, November 22, 2021 / Proposed Rules
DELAWARE RIVER BASIN
COMMISSION
18 CFR Parts 410 and 440
Importations of Water Into and
Exportations of Water From the
Delaware River Basin; Discharges of
Wastewater From High Volume
Hydraulic Fracturing and Related
Activities
Delaware River Basin
Commission.
ACTION: Notice of proposed rulemaking;
public hearing.
AGENCY:
The Commission proposes to
amend its Comprehensive Plan and
Water Code concerning importations of
water into and exportations of water
from the Delaware River Basin; to
amend its Special Regulations—High
Volume Hydraulic Fracturing to
prohibit the discharge of wastewater
from high volume hydraulic fracturing
and related activities to waters or land
within the Delaware River Basin; and to
incorporate key elements of the latter
proposed amendments into the
Commission’s Water Quality
Regulations.
SUMMARY:
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DATES:
Written comments: Written comments
will be accepted through 5 p.m. on
February 28, 2022.
Public hearings: Public hearings will
be held remotely via Zoom on the
following dates at the noted times.
Details about accessing the hearings are
available on the Commission’s website,
www.drbc.gov.
1. December 8, 2021, 2:30 p.m. to no
later than 4:30 p.m.
2. December 8, 2021, 6:30 p.m. to no
later than 8:30 p.m.
3. December 15, 2021, 1 p.m. to no
later than 3 p.m.
4. December 15, 2021, 4 p.m. to no
later than 6 p.m.
ADDRESSES:
To submit written comments: Written
comments will be accepted until 5 p.m.
on February 28, 2022, through the
Commission’s online public comment
collection system at: https://
dockets.drbc.commentinput.com. To
request an exception from use of the
online system based on lack of access to
the internet, please contact: Commission
Secretary, DRBC, P.O. Box 7360, West
Trenton, NJ 08628.
To register to speak at public
hearings: Although attendance at the
hearings is not limited and requires no
registration, those who wish to provide
oral comment at a hearing must register
in advance to do so. Registration will be
through EventBrite. Links to EventBrite
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for each of the public hearing dates and
times are posted at www.drbc.gov.
Online registration will remain open
until 5 p.m. on the day prior to the
hearing date or until all available
speaking slots have been filled,
whichever is earlier. Each person who
wishes to provide oral comment may do
so at only one public hearing.
Registrations will be monitored, and if
capacity is not adequate to
accommodate all who wish to speak,
additional opportunities may be added.
See SUPPLEMENTARY INFORMATION for
details regarding the substance of
written comments.
FOR FURTHER INFORMATION CONTACT: For
information regarding the public
hearings and submission of written
comments, contact Kate Schmidt,
Communications Specialist, at
kate.schmidt@drbc.gov (preferred) or
609–883–9500, ext. 205. For information
concerning the proposed amendments,
contact Pamela Bush, Commission
Secretary and Assistant General
Counsel, at pam.bush@drbc.gov
(preferred) or 609–477–7203.
SUPPLEMENTARY INFORMATION: The
Delaware River Basin Commission
(‘‘DRBC’’ or ‘‘Commission’’) is a regional
interstate and Federal agency formed by
compact legislation of four states and
the United States in 1961 1 to manage
the water resources of the Delaware
River Basin (the ‘‘Basin’’) without regard
to political boundaries. Its members are,
ex officio, the governors of the Basin
states (Delaware, New Jersey, New York,
and Pennsylvania) and the commander
of the U.S. Army Corps of Engineers
North Atlantic Division, who represents
the United States.
Background
By Resolution No. 91–9 on June 19,
1991, the Commissioners amended the
Commission’s Comprehensive Plan by
the addition of policies and regulations
relating to transfers of water into and
out of the Basin. These provisions were
later codified in the Delaware River
Basin Water Code.2 The Commission on
November 30, 2017, proposed
regulations that, in part, concerned
inter-Basin transfers of water and
wastewater associated with high volume
hydraulic fracturing (‘‘HVHF’’) (‘‘2017
draft rule’’) and that addressed the
1 United States Public Law 87–328, Approved
Sept. 27, 1961, 75 Statutes at Large 688; 53
Delaware Laws, Ch. 71, Approved May 26, 1961;
New Jersey Laws of 1961, Ch. 13, Approved May
1, 1961; New York Laws of 1961, Ch. 148,
Approved March 17, 1961; Pennsylvania Acts of
1961, Act. No. 268, Approved July 7, 1961.
2 Delaware River Basin Water Code (hereinafter
‘‘Water Code’’) (incorporated by reference at 18 CFR
part 410), section 2.30.
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treatment and discharge of wastewater
generated by HVHF.3 Concurrently with
adoption of its final rule by Resolution
No. 2021–01 on February 25, 2021, the
concerned the exportation of water to
support HVHF and the importation,
treatment, and discharge of ‘‘produced
water’’ and ‘‘CWT wastewater’’ as
defined therein.4 By a Resolution for the
Minutes on February 25, 2021, the
Commissioners directed the Executive
Director to prepare and publish for
public comment a set of amendments to
the Comprehensive Plan and
implementing regulations to update the
Commission’s policies and provisions
concerning importation and exportation
of water and wastewater from and into
the Basin and ‘‘to include such other
proposed amendments . . . as [the
Executive Director, in consultation with
the Commissioners] deem necessary or
appropriate.’’
In accordance with the
Commissioners’ February 25, 2021,
directive, the Commission is proposing
amendments to its Comprehensive Plan
and regulations to better provide for the
planning, conservation, utilization,
development, management and control
of the Basin’s water resources in
connection with: The importation of
water, including wastewater, into the
Basin; the exportation of water,
including wastewater, from the Basin;
and the discharge of wastewater from
HVHF and HVHF-related activities. The
Commission proposes to amend the
Water Code by clarifying the
circumstances in which exportations of
water, including wastewater, from the
Basin and importations of water,
including wastewater, into the Basin are
considered by the Commission and the
factors to be used in evaluating whether
such proposed imports and exports of
water may be approved. The proposed
amendments will not apply to
importations and exportations that
existed prior to the effective date of any
final rules, but are proposed to apply to
increases in the rate or volume of
existing importations and exportations.
The Commission also proposes to
amend its Special Regulations regarding
HVHF by the addition of a finding that
the discharge of wastewater from HVHF
and HVHF-related activities poses
significant, immediate, and long-term
risks to the development, conservation,
utilization, management, and
3 83
FR 1586, Jan. 12, 2018.
FR 1586, pp. 1589, 1591 (defining ‘‘produced
water’’ as ‘‘any water or fluid returned to the
surface through the production well as a waste
product of hydraulic fracturing,’’ and defining
‘‘CWT wastewater’’ as ‘‘wastewater or effluent
resulting from the treatment of produced water by
a centralized waste treatment facility (‘CWT’)’’).
4 83
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preservation of the Basin’s water
resources, and that controlling future
pollution by prohibiting such discharge
is required to effectuate the
Comprehensive Plan, avoid injury to the
waters of the Basin as contemplated by
the Comprehensive Plan and protect the
public health and preserve the waters of
the Basin for uses in accordance with
the Comprehensive Plan. The finding is
accompanied by a provision prohibiting
the discharge to waters of the Basin of
wastewater from HVHF and HVHFrelated activities.
Managing water quantity and quality
through a basinwide Comprehensive
Plan. The Delaware River Basin
Compact directs the Commission to
develop and adopt, and from time to
time review and revise, a
Comprehensive Plan ‘‘for the immediate
and long range development and use of
the water resources of the [B]asin’’ to
which Federal, State and local agencies
and private parties are bound.5 Through
the adoption of a series of polices and
regulations establishing and amending
its Comprehensive Plan, the
Commission over the past half-century
has developed and implemented instream water quality standards
throughout the Basin, prohibited
degradation of groundwater, instituted
reservoir drought operating plans,
established protected areas to prevent
the depletion of groundwater, and
provided special protection to the nontidal portion of the Delaware River to
preserve its exceptionally high scenic,
recreational, ecological and water
supply values. As the agency through
which the five signatory parties to the
Compact—the States of Delaware, New
Jersey and New York, the
Commonwealth of Pennsylvania, and
the United States—collectively manage
the Basin’s water resources on a regional
basis, the Commission has taken these
steps to, among other things, ensure an
adequate supply of suitable quality
water for domestic use, recreation,
power generation, industrial activity
and aquatic life, and to accommodate
large out-of-Basin diversions by the City
of New York and the State of New Jersey
that are authorized by the 1954 decree
of the U.S. Supreme Court in New Jersey
v. New York, 347 U.S. 995 (the
‘‘Decree’’).
Water Exportation. Since June 19,
1991, the Commission’s policy as
articulated in the Comprehensive Plan
and Water Code (incorporated by
reference at 18 CFR part 410) has been
to discourage the exportation of water
from the Basin on grounds that the
Basin’s waters ‘‘are limited in quantity
5 Compact,
supra note 1, sections 3.2 and 13.1.
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and the Basin is frequently subject to
drought warnings and drought
declarations due to limited water supply
storage and streamflow during dry
periods.’’ 6
In allocating the waters of the Basin
under Section 3.3 of the Compact, the
Commission is constrained by limited
reservoir storage, particularly during
periods of low flow.7 Droughts of
varying intensity and length have
impacted the Basin since the
Commission was formed in October
1961.8 The Commission has
implemented drought operations
thirteen times over six decades,
including during seven droughts so
severe the Commission declared them to
be drought emergencies.9
The Commission’s current
Comprehensive Plan includes three
major types of exportations of water
from the Basin, many of which have
also been the subject of DRBC project
approvals:
D Pre-Compact out-of-Basin
diversions by New York City and the
State of New Jersey authorized by the
Decree; and with the unanimous
consent of the parties to the Decree in
accordance with Section 3.3 of the
Compact, modifications of such
diversions;
D Out-of-Basin transfers approved on
a long-term basis pursuant to Section
3.8 and Article 11 of the Compact to
meet the needs of public water systems
with service areas straddling or adjacent
to a Basin boundary; and
D Out-of-Basin transfers approved on
a temporary or emergency basis
pursuant to Section 3.8 of the Compact
to ensure the public health and safety of
communities adjacent to or straddling a
Basin boundary.
The draft amendments establish the
circumstances under which proposed
exportations that meet the existing
threshold for review established by the
Commission’s Rules of Practice and
Procedure may be considered for
approval. Under the proposed rule, the
Commission may approve an
exportation of water from the Basin if
6 See
Water Code section 2.30.2.
e.g., Water Code section 2.30.2; U.S.
Department of the Interior U.S. Geological Survey
Office of the Delaware River Master, History of the
Reservoir Releases Program in the Upper Delaware
River Basin, available at: https://webapps.usgs.gov/
odrm/about/history.
8 Delaware River Basin Commission, An Overview
of Drought in the Delaware River Basin (Feb. 2019),
Sec. ‘‘DRBC’s Basinwide Drought Actions,’’ par. 1,
available at: https://www.state.nj.us/drbc/library/
documents/drought/DRBdrought-overview_
feb2019.pdf.
9 Id., at Table 1: Basinwide Drought Actions (two
of the emergency actions were conditional and did
not go into effect).
7 See
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the export is needed to serve a straddled
or adjacent public water system; if it is
required on a temporary, short-term, or
emergency basis to meet public health
and safety needs; or if it comprises an
exportation of wastewater. The
proposed amendments provide that in
reviewing proposed exportations, an
analysis of alternatives to the proposed
exportation will be considered, along
with factors that include the effects of
the proposal on public health and safety
and effectuation of the Comprehensive
Plan. The amended rules will further
the Commission’s objectives of
conserving, utilizing, managing, and
controlling the Basin’s water resources
by ensuring that the uses included
within the Comprehensive Plan are
protected, and will preserve the
diversions, compensating releases,
rights, conditions, and obligations of the
parties to the U.S. Supreme Court
Decree of 1954 in New Jersey v. New
York, 347 U.S. 995 (1954).
Water Importation. At the time the
Commission was created in 1961, the
tidal Delaware River suffered from water
quality impairments that included
severe hypoxia (lack of dissolved
oxygen) annually from May through
November, preventing the passage of
fish species that migrate between
marine and fresh waters to reproduce. A
key step in the Estuary’s restoration was
the establishment of water quality uses
and criteria by the Commission in 1967.
Because even after treatment,
wastewater typically contains oxygendepleting substances, the Commission
has for decades used wasteload
allocations for carbonaceous oxygen
demand to protect the uses it
established, including by maintaining
dissolved oxygen in the Estuary at levels
sufficient to support aquatic life.10
The presence of persistent
bioaccumulative toxic contaminants in
sediment, the water column and fish
tissue is a legacy of the Delaware River
Estuary’s nearly two centuries of
industrial use. Although water quality
improvements over the past fifty years
have substantially increased the variety
and abundance of Estuary fish, multiple
species are contaminated with
polychlorinated biphenyls (‘‘PCBs’’),
dioxins and furans, mercury, and
dieldrin at levels exceeding human
health risk advisory limits for their
consumption.11 By Resolution No.
10 See Delaware River Basin Water Code, sections
3.30.2 D.2, 3.30.3 D.2, 3.30.4 D.2, 3.30.5 D.2, 3.30.6
D.2.
11 See Delaware Department of Natural Resources
and Environmental Control, Delaware Fish
Consumption Advisories (Jan. 2018), available at:
https://documents.dnrec.delaware.gov/fw/
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2000–4 the Commission in 2000
determined that allocations of the waste
assimilative capacity of the Estuary
were necessary in Water Quality Zones
2 through 5 to maintain stream quality
objectives for acute toxicity and chronic
toxicity. The Commission and its
members face new challenges in the
emergence of previously unknown
contaminants now understood to have
adverse impacts on human health and
aquatic life.
Although water quality management
objectives in the Delaware River Estuary
have of necessity prioritized restoration,
the focus in the non-tidal Delaware
River has been to prevent degradation of
waters that are exceptionally clean. By
resolutions in 1992, 2005, and 2008, the
Commission designated the entire 197mile reach of the non-tidal main stem
Delaware River from Hancock, New
York, to Trenton, New Jersey, as
‘‘Special Protection Waters,’’ due to
their exceptionally high scenic,
recreational, ecological, and water
supply values. The importance of these
waters to the public is underscored by
their national designation: The non-tidal
main stem within and downstream of
potential HVHF activity includes 147
river miles designated by Congress as
parts of the National Wild and Scenic
Rivers System, including 113 river miles
that have also been designated as units
of the National Park System.12 New or
expanded pollutant loadings to Special
Protection Waters—whether from
imported wastewater or wastewater
generated within the Basin—are
permitted only if they do not
measurably change the defined, existing
water quality.
Fisheries/Documents/2018-Delaware-FishConsumption-Advisory-Table.pdf; New Jersey
Department of Environmental Protection & New
Jersey Department of Health, Fish Smart, Eat Smart:
A guide to Health Advisories for Eating Fish and
Crabs Caught in New Jersey Waters (Nov. 2020),
available at: https://www.nj.gov/dep/dsr/fishadvisories.pdf; Pennsylvania Department of
Environmental Protection, Commonwealth of
Pennsylvania Public Health Advisory 2021 Fish
Consumption (Feb. 2021), available at: https://
pfbc.pa.gov/fishpub/summaryad/
sumconsumptionotepdf.
12 See 16 U.S.C. 1274(a)(19)–(20) (Upper
Delaware Scenic and Recreational River and
Delaware Water Gap National Recreation Area), 16
U.S.C. 1274(a)(165) (Lower Delaware River and
Associated Tributaries). Other Basin waters
included in the Wild and Scenic Rivers System and
protected by state antidegradation programs
include: 190 miles of the White Clay Creek and its
tributaries in Delaware and Pennsylvania, 35 miles
of the Maurice River and its tributaries in New
Jersey, and 25 miles of the Musconetcong River,
also in New Jersey. See, 16 U.S.C. 1274(a)(163)
(White Clay Creek and its tributaries); 16 U.S.C.
1274(a)(146)–(149) & 1274(a)(151)–(153) (Maurice
River and its tributaries); 16 U.S.C. 1274(a)(169)
(Musconetcong River).
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For the foregoing reasons, since June
19, 1991, the Commission’s policy as set
forth in the Water Code and
Comprehensive Plan is to discourage the
importation of wastewater into the
Basin on grounds that the Basin’s waters
‘‘have limited assimilative capacity and
limited capacity to accept conservative
substances without significant
impacts.’’ 13 The Commission will
continue to use its authority to preclude
the discharge of wastewater that would
impede the restoration of water quality
and aquatic life in the tidal Delaware
River or that would degrade the Basin’s
Special Protection Waters.
The proposed rules regarding
importation clarify the factors the
Commission will use in evaluating
proposed importations that meet the
existing thresholds for review
established by the Commission’s Rules
of Practice and Procedure. Although
importations of wastewater are
‘‘discouraged,’’ they may be permitted
after careful consideration to ensure that
available alternatives have been
evaluated, treatment is employed to
ensure applicable water quality criteria
are achieved, restoration efforts are not
impeded, and uses incorporated in the
Commission’s Comprehensive Plan are
protected. The amended rules will
further the Commission’s objectives of
conserving, utilizing, managing, and
controlling the Basin’s water resources
by ensuring continued protection of the
uses included within the
Comprehensive Plan.
Notably, to date, the Commission has
not approved transfers into the Basin of
wastewater associated with HVHF, and
no applications for such transfers are
under consideration. Additionally, in
many instances, the Commission has
conditioned its approvals of wastewater
discharge projects on a requirement that
no importation, treatment or discharge
of HVHF wastewater may be undertaken
by a docket holder without the
Commission’s prior review and
approval. As discussed below,
amendments to the Commission’s
Special Regulations at 18 CFR part
440—High Volume Hydraulic
Fracturing are being proposed that
would prohibit the discharge of HVHF
wastewater to water or land within the
Basin.
Prohibition on Discharge of
Wastewater from HVHF and HVHFRelated Activities. The Commission’s
Comprehensive Plan and Water Code
provide in part that ‘‘[t]he quality of
Basin [surface] waters, except
13 See Water Code section 2.30.2 (or ‘‘limited
capacity to assimilate pollutants’’ as reflected in the
proposed amendments).
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intermittent streams, shall be
maintained in a safe and satisfactory
condition’’ for uses that include,
‘‘agricultural, industrial, and public
water supplies after reasonable
treatment, except where natural salinity
precludes such uses; . . . wildlife, fish
and other aquatic life; recreation;
navigation; [and] controlled and
regulated waste assimilation to the
extent that such use is compatible with
other uses.’’ 14 Similarly, the
Comprehensive Plan and Water Code
provide that the quality of ground
waters of the Basin ‘‘shall be maintained
in a safe and satisfactory condition,
except where such uses are precluded
by natural quality, for . . . domestic,
agricultural, industrial, and public
water supplies; [and] . . . a source of
surface water suitable for recreation,
wildlife, fish and other aquatic life.’’ 15
In its proposed and final rules
prohibiting HVHF within the Basin in
November 2017 and February 2021,
respectively,16 the Commission
recognized that the treatment disposal
of HVHF wastewater, among other
activities associated with HVHF, posed
risks, vulnerabilities and impacts to the
Basin’s water resources.17 The peerreviewed science discussed in detail in
the Comment and Response Document
adopted concurrently with the
Commission’s final rule (hereinafter, the
‘‘CRD’’) 18 demonstrates that for a
variety of reasons, protecting public
health and preserving the Basin’s water
resources for uses in accordance with
the Comprehensive Plan require that
discharges of HVHF wastewater to Basin
waters or land be prohibited.
Hydraulic fracturing wastewater may
contain a complex blend of constituents,
including known carcinogens,
neurotoxins, or endocrine disruptors, or
are characterized by reproductive or
developmental toxicity or adverse
immune system effects.19 As discussed
14 Water
Code, section 3.10.2. B.
section 3.40.3.
16 83 FR 1586, Jan. 12, 2018; 86 FR 20628, Apr.
21, 2021.
17 See, e.g., DRBC Resolution No. 2021–01, p. 4,
par. 4. Available at: https://www.state.nj.us/drbc/
library/documents/Res2021-01_HVHF.pdf. See
generally, Delaware River Basin Commission,
Comment and Response Document: Proposed
Amendments to the Administrative Manual and
Special Regulations Regarding High Volume
Hydraulic Fracturing Activities; Additional
Clarifying Amendments, Feb. 25, 2021 (hereinafter,
‘‘CRD’’), at, e.g., pp. E–1, 65–66 (‘‘Synthesis’’ of
response to comments concerning spills); pp. 158–
59 (water quality impacts from discharges of treated
hydraulic fracturing wastewater). The CRD is
available at: https://www.state.nj.us/drbc/library/
documents/CRD_HVHFrulemaking.pdf.
18 See CRD, supra note 15.
19 CRD, supra note 15, pp. 131, 161, and 255
(citing E.G. Elliott, et al., A systematic evaluation
15 Id.,
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at length in the CRD, some of the
chemicals used are not known because
they are accorded protection as trade
secrets.20 The U.S. Environmental
Protection Agency (hereinafter, ‘‘EPA’’),
has reported that the majority of
chemicals associated with hydraulic
fracturing, both known and unknown,
have not undergone significant
toxicological assessment.21 The impacts
from those chemicals to human health
and aquatic life are thus
undetermined.22 In addition to the
potential pollutants in fracturing fluid,
the fluid returned from an oil or natural
gas well after HVHF (typically called
‘‘produced water’’ and including
‘‘flowback water’’) is mixed with water
from the target formation, which
contains: Salts, including chloride,
bromide, sulfate sodium, magnesium,
and calcium; metals, including barium,
manganese, iron, and strontium;
naturally-occurring organic compounds,
including benzene, toluene,
ethylbenzene, and xylenes; oil and
grease; and radioactive materials,
including radium, found in ancient sea
water trapped within the oil- and gasbearing shale formations.23
A report by the U.S. Geological
Survey (‘‘USGS’’) observed that the salts
in shale waters (which are sometimes
referred to as ‘‘total dissolved solids’’ or
‘‘TDS’’) reached extreme concentrations
over millions of years, and their
chemical interactions with surrounding
rock can mobilize radionuclides.24 The
USGS authors cite radioactivity as a key
characteristic of the HVHF waste stream
that potentially represents a substantial
risk to water resources, aquatic
of chemicals in hydraulic-fracturing fluids and
wastewater for reproductive and developmental
toxicity, J. Exposure Science & Environmental
Epidemiology, 27: 90–99 (2017)). See also, United
States Environmental Protection Agency (‘‘U.S.
EPA’’), Hydraulic fracturing for oil and gas: Impacts
from the hydraulic fracturing water cycle on
drinking water resources in the United States (final
report) (EPA/600/R–16/236F) (2016) (hereinafter
‘‘U.S. EPA 2016 Assessment’’), p. ES–20; U.S. EPA,
Technical development document for the effluent
limitations guidelines and standards for the oil and
gas extraction point source category (EPA–820–R–
16–003), 2016, pp. 43–47 (Sec. 1.2).
20 See CRD, supra note 15, pp. 259–264.
21 Id., p. 132 (citing U.S. EPA 2016 Assessment,
supra note 17, p. ES–42–45, 9–1).
22 U.S. EPA, Detailed study of the centralized
waste treatment point source category for facilities
managing oil and gas extraction wastes. (EPA–821–
R–18–004) (2018), p. 9–36. Available at: https://
www.epa.gov/sites/default/files/2018-05/
documents/cwt-study_may-2018.pdf.
23 CRD, supra note 15, pp. E–6, 71.
24 CRD, supra note 15, p. 84 (citing E.L. Rowan,
et al., Radium content of oil- and gas-field
produced waters in the Northern Appalachian
Basin (USA): Summary and discussion of data, U.S.
Department of the Interior, U.S. Geological Survey:
Scientific Investigations Report 2011–5135 (2011)).
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ecosystems and biota, and public health,
if released.25
Wastes associated with oil and natural
gas exploration, development and
production, including oil and gas
drilling fluids and produced waters, are
exempt from federal regulations for the
management of hazardous wastes.26 But
these wastes may cause harm to public
health and the environment if they are
not properly managed. The CRD
references multiple studies
documenting adverse impacts to water
resources from HVHF wastewater after
treatment, whether by municipal or
industrial treatment facilities.27 Because
produced water contains high TDS and
dissolved inorganic constituents that
most publicly owned treatment works
and other municipal wastewater
treatment facilities are not designed to
remove, EPA in 2016 issued a final rule
banning the treatment and discharge of
oil and gas extraction wastewater from
publicly owned treatment works
(‘‘POTWs’’).28 Privately owned
treatment works that treat primarily
domestic and commercial wastewater
remain outside the scope of EPA’s ‘‘zero
discharge’’ rule.
The Commonwealth of Pennsylvania
manages the risks associated with
disposal of HVHF wastewater in part
through a detailed statute and
regulations focused on protecting water
resources and public health while
preserving commercial interests.
Regulations adopted in 2010 pursuant to
the Pennsylvania Clean Streams Law
address risks associated with HVHF
wastewater treatment and discharge by
limiting new discharges of TDS,
chlorides, barium and strontium in
treated wastewater, regardless of the
type of discharge—public, private,
municipal or industrial.29
25 CRD, supra note 15, p. 86 (citing E.L. Rowan,
et al., supra note 22) (also noting that chemically,
radium behaves in a manner similar to calcium and
is capable of bioaccumulation in plants and
animals).
26 See, e.g., U.S. Environmental Protection
Agency, Office of Solid Waste, Exemption of Oil
and Gas Exploration and Production Wastes from
Federal Hazardous Waste Regulations, EPA530–K–
01–004 (2002).
27 See CRD, supra note 15, pp. 18–19, 128–143.
See also U.S. EPA, infra note 26 (regarding impacts
associated with discharges from municipal
wastewater treatment plants); U.S. EPA, supra note
20 (regarding impacts associated with discharges
from the industrial wastewater treatment facilities
known as ‘‘CWTs’’).
28 U.S. EPA, Effluent Limitations Guidelines and
Standards for the Oil and Gas Extraction Point
Source Category, 81 FR 41845 (Aug. 29, 2016)
(preamble). See also 81 FR 88126 (Dec. 7, 2016)
(extending deadline for compliance); CRD, supra
note 15, pp. 18–19, 128.
29 25 Pa. Code section 95.10. See also CRD, supra
note 15, pp. 132, 178.
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Research has demonstrated that even
with specialized treatment, however,
the discharge of HVHF wastewater to
surface waters can adversely impact
downstream waters. The Commission’s
CRD contains an extensive discussion of
the potential risks associated with the
treatment and discharge of HVHF
wastewater to Basin waters from
CWTs.30 The Commission concluded
that treatment of HVHF wastewater at
CWTs with subsequent discharge of
effluent to the waters of the Basin would
present significant risks to the receiving
waters.31
Growth in Marcellus shale gas
production is anticipated,32 and in the
Marcellus production area immediately
west of the Basin, recent data show
increasing water use by the shale gas
production industry, which may result
in increasing volumes of wastewater.33
Although additional factors may affect
demand for HVHF wastewater treatment
and discharge options, these shale gas
production and water use trends create
the potential for increased demand for
CWT services in the region.34 To protect
the public health and preserve the
waters of the Basin for uses in
accordance with the Comprehensive
Plan, the Commission thus proposes to
prohibit the discharge of treated or
untreated HVHF wastewater to waters or
land within the Basin.
Water Quality Regulations. To
facilitate the alignment of certain Basin
state discharge permits with the
Commission’s proposed regulations
regarding wastewater from high volume
hydraulic fracturing, the Commission
further proposes to amend its Water
Quality Regulations, Article 4—
Application of Standards. The proposed
amendment would consist of a new
section 4.50, captioned ‘‘Wastewater
from High Volume Hydraulic Fracturing
and Related Activities,’’ expressly
incorporating into the Water Quality
Regulations the determination and
prohibition comprising § 440.4 of title
18 of the CFR, and the purpose and
definitions encompassing §§ 440.1 and
440.2. Existing section 4.50 of the Water
Quality Regulations and its subparagraphs 4.50.1 through 4.50.6 are
30 See CRD, supra note 15, pp. 130–143, 178. See
generally U.S. EPA, supra note 20.
31 See CRD, supra note 15, p. 138.
32 U.S. EPA, supra note 20, p. 8–6.
33 See CRD, supra note 15, p. 16 (reporting
increased length of natural gas well laterals and
increased use of water per foot of well fractured in
the Susquehanna River Basin, which adjoins the
Basin) (citing Susquehanna River Basin
Commission, Water use associated with natural gas
development in the Susquehanna River Basin: An
update of activities through December 2018
(Publication No. 323) (2020)).
34 See U.S. EPA, supra note 20, pp. 8–4—8–6.
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jspears on DSK121TN23PROD with PROPOSALS1
proposed to be redesignated as section
4.60 and 4.60.1 through 4.60.6.
Incorporation by Reference. The
entirety of the Water Code, including
section 2.30, and the entirety of the
Water Quality Regulations, including
Article 4, are incorporated by reference
into the Code of Federal Regulations at
18 CFR 410.1, and each was last
approved for incorporation by reference
by the Office of the Federal Register
(‘‘OFR’’) on December 4, 2013. In
accordance with OFR’s regulations
concerning incorporation by
reference,35 the sections of this
preamble titled ‘‘Water Importation,’’
‘‘Water Exportation,’’ and ‘‘Water
Quality Regulations,’’ summarize the
proposed amendments to section 2.30 of
the Water Code and Article 4 of the
Water Quality Regulations.
The Commission further proposes: (a)
To amend § 410.1(c) of title 18 of the
Code of Federal Regulations by
replacing the date of incorporation by
reference there with respect to each of
the Water Code and Water Quality
Regulations (both, December 4, 2013),
with the date on which the Commission
adopts a final rule pursuant to this
proposal; and (b) to update the
Commission’s mailing and website
addresses.
Interested persons may obtain or
inspect copies of the Water Code and
the Water Quality Regulations at the
Delaware River Basin Commission, 25
Cosey Road, West Trenton, New Jersey
08628–0360, 609–883–9500, or on the
Commission’s website, www.drbc.gov.
Public Process
Substance of comments: The
Commission expressly seeks comment
on the effects the proposed rules may
have within the Basin on: Water
availability, the control and abatement
of water pollution, economic
development, the conservation and
protection of drinking water supplies,
the conservation and protection of
aquatic life, the conservation and
protection of water quality in Special
Protection Waters, and the protection,
maintenance and improvement of water
quantity and quality Basinwide. The
Commission welcomes and will
consider any other comments that
concern the potential effects of the draft
rules on the conservation, utilization,
development, management and control
of the water and related resources of the
Basin. Comments on matters not within
the scope of the proposed rules may not
be considered.
Non-digitized, voluminous materials
such as books, journals or collected
35 See
1 CFR part 51. See also, id., § 51.5B.
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letters and petitions will not be
accepted. Digital submissions of articles
and websites must be accompanied by
a statement containing citations to the
specific findings or conclusions the
commenter wishes to reference.
Submission of written comments.
Written comments along with any
attachments should be submitted
through the Commission’s web-based
comment system (https://
dockets.drbc.commentinput.com) until
5 p.m. on February 28, 2022. All
materials should be provided in
searchable formats, preferably in .pdf
searchable text. Notably, a picture scan
of a document may not result in
searchable text. Comments received
through any method other than the
designated on-line method, including
via email, fax, postal/delivery services
or hand delivery, will not be considered
or included in the rulemaking record
unless an express exception has been
granted. Requests for exceptions from
the web-based-submissions-only policy
based on lack of access to the web-based
comment system may be addressed to:
Commission Secretary, DRBC, P.O. Box
7360, West Trenton, NJ 08628.
Public hearings. To provide for an
orderly process and to support public
and community health measures, the
Commission is conducting its public
hearings virtually. Attendance at the
hearings is not limited and requires no
registration. However, to eliminate
uncertainty on the part of attendees
about whether they will have an
opportunity to provide oral comment,
those who wish to speak at a hearing
must register in advance to do so, using
links on the Commission’s website.
Registrations will be monitored, and if
capacity is not adequate to
accommodate all who wish to speak,
additional opportunities may be added.
Key elements of the procedure are as
follows:
D Online registration to speak at a
public hearing will remain open until 5
p.m. the day prior to each hearing.
D Each person who wishes to provide
oral comment may do so at only one
public hearing.
D Speaking time will be limited to
approximately three minutes per
speaker.
D Elected government officials and
their staff will have the opportunity to
identify themselves when registering to
attend a hearing.
D Attendance at the public hearings is
not limited and requires no advance
registration.
D Written and oral comment will
receive equal consideration.
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The Commission appreciates the
public’s participation and input on this
important matter.
More Information. Detailed and up-todate information about the public
process, including all proposed rule
text, related documents and links for
online registration to speak at each of
the scheduled public hearings, can be
found on the DRBC website,
www.drbc.gov.
List of Subjects
18 CFR Part 410
Incorporation by reference, Water
pollution control, Water resources,
Water supply.
18 CFR Part 440
Wastewater discharge, Water
pollution control, Water resources.
For the reasons set forth in the
preamble, the Delaware River Basin
Commission proposes to amend title 18,
chapter III of the Code of Federal
Regulations as follows:
PART 410—BASIN REGULATIONS;
WATER CODE AND ADMINISTRATIVE
MANUAL—PART III WATER QUALITY
REGULATIONS
1. The authority citation for part 410
continues to read as follows:
■
Authority: Delaware River Basin Compact,
75 Stat. 688.
2. Amend § 410.1 by revising
paragraph (c) to read as follows.
■
§ 410.1 Basin regulations—Water Code
and Administrative Manual—Part III Water
Quality Regulations.
*
*
*
*
*
(c) Work, services, activities, and
facilities affecting the conservation,
utilization, control, development, or
management of water resources within
the Delaware River Basin are subject to
regulations contained within the
Delaware River Basin Water Code with
Amendments through [EFFECTIVE
DATE OF FINAL RULE], and the
Administrative Manual—Part III Water
Quality Regulations with Amendments
through [EFFECTIVE DATE OF FINAL
RULE]. Both the Delaware River Basin
Water Code and the Administrative
Manual—Part III Water Quality
Regulations are incorporated by
reference into this part with the
approval of the Director of the Federal
Register under 5 U.S.C. 552(a) and 1
CFR part 51. You may obtain or inspect
copies at the Delaware River Basin
Commission (DRBC), 25 Cosey Road,
West Trenton, New Jersey 08628–0360,
609–883–9500, www.drbc.gov, or at the
National Archives and Records
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Federal Register / Vol. 86, No. 222 / Monday, November 22, 2021 / Proposed Rules
Administration (NARA). For
information on the availability of this
material at NARA, email fr.inspection@
nara.gov or go to www.archives.gov/
federal-register/cfr/ibr-locations.html.
PART 440—HIGH VOLUME
HYDRAULIC FRACTURING
3. The authority citation for part 440
continues to read as follows:
■
Authority: Delaware River Basin Compact
(75 Stat. 688).
4. Amend § 440.1 by revising
paragraph (d) to read as follows:
■
§ 440.1 Purpose, authority, and
relationship to other requirements.
*
*
*
*
*
(d) Relationship to other Commission
requirements. The provisions of this
part are in addition to all applicable
requirements in other Commission
regulations in this chapter, dockets,
permits, and determinations.
*
*
*
*
*
■ 5. Amend § 440.2 by revising the
introductory text, adding in alphabetical
order definitions for ‘‘HVHF-related
activities’’ and ‘‘Wastewater from high
volume hydraulic fracturing’’, and
revising the definition of ‘‘Water
resource(s)’’ to read as follows:
jspears on DSK121TN23PROD with PROPOSALS1
§ 440.2
Definitions.
For purposes of this part, the
following terms and phrases have the
meanings provided. Some definitions
differ from those provided in
regulations of one or more agencies of
the Commission’s member states and
the Federal Government. Others are
consistent with terms defined by the
Delaware River Basin Compact.
*
*
*
*
*
HVHF-related activities are:
(1) Construction of an oil or natural
gas production well that is to be
stimulated using HVHF as defined in
this section;
(2) Chemical mixing or storage of
proppant, chemicals and other additives
to make fracturing fluid; and
(3) Management of wastewater from
hydraulic fracturing, including storage,
disposal, treatment, or reuse in
hydraulic fracturing operations or other
uses.
*
*
*
*
*
Wastewater from high volume
hydraulic fracturing is:
(1) Any wastewater, brine, sludge,
chemicals, naturally occurring
radioactive materials, heavy metals, or
other contaminants that have been used
for or generated by high volume
hydraulic fracturing or HVHF-related
activities;
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(2) Leachate from solid wastes
associated with HVHF-related activities,
except if the solid wastes were lawfully
disposed of in a landfill within the
Basin prior to [EFFECTIVE DATE OF
FINAL RULE]; and
(3) Any products, co-products,
byproducts, or waste products resulting
from the treatment, processing, or
modification of the wastewater
described in paragraphs (1) and (2) of
this definition.
(4) Leachate from solid wastes
associated with HVHF-related activities
is excluded from this definition if the
solid wastes were lawfully disposed of
in a landfill within the Basin prior to
[EFFECTIVE DATE OF FINAL RULE].
Water resource(s) is, in accordance
with section 1.2(i) of the Delaware River
Basin Compact, water and related
natural resources in, on, under, or above
the ground, including related uses of
land, which are subject to beneficial
use, ownership or control within the
Delaware River Basin.
■ 6. Add § 440.4 to read as follows:
§ 440.4 Wastewater from high volume
hydraulic fracturing and related activities.
(a) Determination. The Commission
has determined that the discharge of
wastewater from high volume hydraulic
fracturing and HVHF-related activities
poses significant, immediate, and longterm risks to the development,
conservation, utilization, management,
and preservation of the Basin’s water
resources. Controlling future pollution
by prohibiting such discharge is
required to effectuate the
Comprehensive Plan, avoid injury to the
waters of the Basin as contemplated by
the Comprehensive Plan and protect the
public health and preserve the waters of
the Basin for uses in accordance with
the Comprehensive Plan.
(b) Prohibition. No person may
discharge wastewater from high volume
hydraulic fracturing or HVHF-related
activities to waters or land within the
Basin.
Dated: October 28, 2021.
Pamela M. Bush,
Commission Secretary/Assistant General
Counsel.
[FR Doc. 2021–24152 Filed 11–19–21; 8:45 am]
BILLING CODE P
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66255
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R04–OAR–2020–0362; FRL–9238–01–
R4]
Air Plan Approval; FL; Removal of
Motor Vehicle Rules
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve a
State Implementation Plan (SIP)
revision submitted by the State of
Florida, through the Florida Department
of Environmental Protection (FDEP), via
a letter dated July 2, 2020. The revision
removes rules prohibiting tampering
with motor vehicle air pollution control
equipment and rules concerning visible
emissions from motor vehicles. EPA is
proposing to remove the tampering rules
and visible emissions rules from the SIP
pursuant to the Clean Air Act (CAA or
Act) and applicable regulations.
DATES: Comments must be received on
or before December 22, 2021.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R04–
OAR–2020–0362 at https://
www.regulations.gov. Follow the online
instructions for submitting comments.
Once submitted, comments cannot be
edited or removed from Regulations.gov.
EPA may publish any comment received
to its public docket. Do not submit
electronically any information you
consider to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Multimedia submissions (audio, video,
etc.) must be accompanied by a written
comment. The written comment is
considered the official comment and
should include discussion of all points
you wish to make. EPA will generally
not consider comments or comment
contents located outside of the primary
submission (i.e., on the web, cloud, or
other file sharing system). For
additional submission methods, the full
EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
https://www.epa.gov/dockets/
commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT:
Kelly Sheckler, Air Regulatory
Management Section, Air Planning and
Implementation Branch, Air and
Radiation Division, U.S. Environmental
Protection Agency, Region 4, 61 Forsyth
Street SW, Atlanta, Georgia 30303–8960.
SUMMARY:
E:\FR\FM\22NOP1.SGM
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]]>Agencies
[Federal Register Volume 86, Number 222 (Monday, November 22, 2021)]
[Proposed Rules]
[Pages 66250-66255]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-24152]
[[Page 66250]]
=======================================================================
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DELAWARE RIVER BASIN COMMISSION
18 CFR Parts 410 and 440
Importations of Water Into and Exportations of Water From the
Delaware River Basin; Discharges of Wastewater From High Volume
Hydraulic Fracturing and Related Activities
AGENCY: Delaware River Basin Commission.
ACTION: Notice of proposed rulemaking; public hearing.
-----------------------------------------------------------------------
SUMMARY: The Commission proposes to amend its Comprehensive Plan and
Water Code concerning importations of water into and exportations of
water from the Delaware River Basin; to amend its Special Regulations--
High Volume Hydraulic Fracturing to prohibit the discharge of
wastewater from high volume hydraulic fracturing and related activities
to waters or land within the Delaware River Basin; and to incorporate
key elements of the latter proposed amendments into the Commission's
Water Quality Regulations.
DATES:
Written comments: Written comments will be accepted through 5 p.m.
on February 28, 2022.
Public hearings: Public hearings will be held remotely via Zoom on
the following dates at the noted times. Details about accessing the
hearings are available on the Commission's website, www.drbc.gov.
1. December 8, 2021, 2:30 p.m. to no later than 4:30 p.m.
2. December 8, 2021, 6:30 p.m. to no later than 8:30 p.m.
3. December 15, 2021, 1 p.m. to no later than 3 p.m.
4. December 15, 2021, 4 p.m. to no later than 6 p.m.
ADDRESSES:
To submit written comments: Written comments will be accepted until
5 p.m. on February 28, 2022, through the Commission's online public
comment collection system at: https://dockets.drbc.commentinput.com. To
request an exception from use of the online system based on lack of
access to the internet, please contact: Commission Secretary, DRBC,
P.O. Box 7360, West Trenton, NJ 08628.
To register to speak at public hearings: Although attendance at the
hearings is not limited and requires no registration, those who wish to
provide oral comment at a hearing must register in advance to do so.
Registration will be through EventBrite. Links to EventBrite for each
of the public hearing dates and times are posted at www.drbc.gov.
Online registration will remain open until 5 p.m. on the day prior to
the hearing date or until all available speaking slots have been
filled, whichever is earlier. Each person who wishes to provide oral
comment may do so at only one public hearing. Registrations will be
monitored, and if capacity is not adequate to accommodate all who wish
to speak, additional opportunities may be added.
See SUPPLEMENTARY INFORMATION for details regarding the substance
of written comments.
FOR FURTHER INFORMATION CONTACT: For information regarding the public
hearings and submission of written comments, contact Kate Schmidt,
Communications Specialist, at [email protected] (preferred) or 609-
883-9500, ext. 205. For information concerning the proposed amendments,
contact Pamela Bush, Commission Secretary and Assistant General
Counsel, at [email protected] (preferred) or 609-477-7203.
SUPPLEMENTARY INFORMATION: The Delaware River Basin Commission
(``DRBC'' or ``Commission'') is a regional interstate and Federal
agency formed by compact legislation of four states and the United
States in 1961 \1\ to manage the water resources of the Delaware River
Basin (the ``Basin'') without regard to political boundaries. Its
members are, ex officio, the governors of the Basin states (Delaware,
New Jersey, New York, and Pennsylvania) and the commander of the U.S.
Army Corps of Engineers North Atlantic Division, who represents the
United States.
---------------------------------------------------------------------------
\1\ United States Public Law 87-328, Approved Sept. 27, 1961, 75
Statutes at Large 688; 53 Delaware Laws, Ch. 71, Approved May 26,
1961; New Jersey Laws of 1961, Ch. 13, Approved May 1, 1961; New
York Laws of 1961, Ch. 148, Approved March 17, 1961; Pennsylvania
Acts of 1961, Act. No. 268, Approved July 7, 1961.
---------------------------------------------------------------------------
Background
By Resolution No. 91-9 on June 19, 1991, the Commissioners amended
the Commission's Comprehensive Plan by the addition of policies and
regulations relating to transfers of water into and out of the Basin.
These provisions were later codified in the Delaware River Basin Water
Code.\2\ The Commission on November 30, 2017, proposed regulations
that, in part, concerned inter-Basin transfers of water and wastewater
associated with high volume hydraulic fracturing (``HVHF'') (``2017
draft rule'') and that addressed the treatment and discharge of
wastewater generated by HVHF.\3\ Concurrently with adoption of its
final rule by Resolution No. 2021-01 on February 25, 2021, the
concerned the exportation of water to support HVHF and the importation,
treatment, and discharge of ``produced water'' and ``CWT wastewater''
as defined therein.\4\ By a Resolution for the Minutes on February 25,
2021, the Commissioners directed the Executive Director to prepare and
publish for public comment a set of amendments to the Comprehensive
Plan and implementing regulations to update the Commission's policies
and provisions concerning importation and exportation of water and
wastewater from and into the Basin and ``to include such other proposed
amendments . . . as [the Executive Director, in consultation with the
Commissioners] deem necessary or appropriate.''
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\2\ Delaware River Basin Water Code (hereinafter ``Water Code'')
(incorporated by reference at 18 CFR part 410), section 2.30.
\3\ 83 FR 1586, Jan. 12, 2018.
\4\ 83 FR 1586, pp. 1589, 1591 (defining ``produced water'' as
``any water or fluid returned to the surface through the production
well as a waste product of hydraulic fracturing,'' and defining
``CWT wastewater'' as ``wastewater or effluent resulting from the
treatment of produced water by a centralized waste treatment
facility (`CWT')'').
---------------------------------------------------------------------------
In accordance with the Commissioners' February 25, 2021, directive,
the Commission is proposing amendments to its Comprehensive Plan and
regulations to better provide for the planning, conservation,
utilization, development, management and control of the Basin's water
resources in connection with: The importation of water, including
wastewater, into the Basin; the exportation of water, including
wastewater, from the Basin; and the discharge of wastewater from HVHF
and HVHF-related activities. The Commission proposes to amend the Water
Code by clarifying the circumstances in which exportations of water,
including wastewater, from the Basin and importations of water,
including wastewater, into the Basin are considered by the Commission
and the factors to be used in evaluating whether such proposed imports
and exports of water may be approved. The proposed amendments will not
apply to importations and exportations that existed prior to the
effective date of any final rules, but are proposed to apply to
increases in the rate or volume of existing importations and
exportations. The Commission also proposes to amend its Special
Regulations regarding HVHF by the addition of a finding that the
discharge of wastewater from HVHF and HVHF-related activities poses
significant, immediate, and long-term risks to the development,
conservation, utilization, management, and
[[Page 66251]]
preservation of the Basin's water resources, and that controlling
future pollution by prohibiting such discharge is required to
effectuate the Comprehensive Plan, avoid injury to the waters of the
Basin as contemplated by the Comprehensive Plan and protect the public
health and preserve the waters of the Basin for uses in accordance with
the Comprehensive Plan. The finding is accompanied by a provision
prohibiting the discharge to waters of the Basin of wastewater from
HVHF and HVHF-related activities.
Managing water quantity and quality through a basinwide
Comprehensive Plan. The Delaware River Basin Compact directs the
Commission to develop and adopt, and from time to time review and
revise, a Comprehensive Plan ``for the immediate and long range
development and use of the water resources of the [B]asin'' to which
Federal, State and local agencies and private parties are bound.\5\
Through the adoption of a series of polices and regulations
establishing and amending its Comprehensive Plan, the Commission over
the past half-century has developed and implemented in-stream water
quality standards throughout the Basin, prohibited degradation of
groundwater, instituted reservoir drought operating plans, established
protected areas to prevent the depletion of groundwater, and provided
special protection to the non-tidal portion of the Delaware River to
preserve its exceptionally high scenic, recreational, ecological and
water supply values. As the agency through which the five signatory
parties to the Compact--the States of Delaware, New Jersey and New
York, the Commonwealth of Pennsylvania, and the United States--
collectively manage the Basin's water resources on a regional basis,
the Commission has taken these steps to, among other things, ensure an
adequate supply of suitable quality water for domestic use, recreation,
power generation, industrial activity and aquatic life, and to
accommodate large out-of-Basin diversions by the City of New York and
the State of New Jersey that are authorized by the 1954 decree of the
U.S. Supreme Court in New Jersey v. New York, 347 U.S. 995 (the
``Decree'').
---------------------------------------------------------------------------
\5\ Compact, supra note 1, sections 3.2 and 13.1.
---------------------------------------------------------------------------
Water Exportation. Since June 19, 1991, the Commission's policy as
articulated in the Comprehensive Plan and Water Code (incorporated by
reference at 18 CFR part 410) has been to discourage the exportation of
water from the Basin on grounds that the Basin's waters ``are limited
in quantity and the Basin is frequently subject to drought warnings and
drought declarations due to limited water supply storage and streamflow
during dry periods.'' \6\
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\6\ See Water Code section 2.30.2.
---------------------------------------------------------------------------
In allocating the waters of the Basin under Section 3.3 of the
Compact, the Commission is constrained by limited reservoir storage,
particularly during periods of low flow.\7\ Droughts of varying
intensity and length have impacted the Basin since the Commission was
formed in October 1961.\8\ The Commission has implemented drought
operations thirteen times over six decades, including during seven
droughts so severe the Commission declared them to be drought
emergencies.\9\
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\7\ See e.g., Water Code section 2.30.2; U.S. Department of the
Interior U.S. Geological Survey Office of the Delaware River Master,
History of the Reservoir Releases Program in the Upper Delaware
River Basin, available at: https://webapps.usgs.gov/odrm/about/history.
\8\ Delaware River Basin Commission, An Overview of Drought in
the Delaware River Basin (Feb. 2019), Sec. ``DRBC's Basinwide
Drought Actions,'' par. 1, available at: https://www.state.nj.us/drbc/library/documents/drought/DRBdrought-overview_feb2019.pdf.
\9\ Id., at Table 1: Basinwide Drought Actions (two of the
emergency actions were conditional and did not go into effect).
---------------------------------------------------------------------------
The Commission's current Comprehensive Plan includes three major
types of exportations of water from the Basin, many of which have also
been the subject of DRBC project approvals:
[ssquf] Pre-Compact out-of-Basin diversions by New York City and
the State of New Jersey authorized by the Decree; and with the
unanimous consent of the parties to the Decree in accordance with
Section 3.3 of the Compact, modifications of such diversions;
[ssquf] Out-of-Basin transfers approved on a long-term basis
pursuant to Section 3.8 and Article 11 of the Compact to meet the needs
of public water systems with service areas straddling or adjacent to a
Basin boundary; and
[ssquf] Out-of-Basin transfers approved on a temporary or emergency
basis pursuant to Section 3.8 of the Compact to ensure the public
health and safety of communities adjacent to or straddling a Basin
boundary.
The draft amendments establish the circumstances under which
proposed exportations that meet the existing threshold for review
established by the Commission's Rules of Practice and Procedure may be
considered for approval. Under the proposed rule, the Commission may
approve an exportation of water from the Basin if the export is needed
to serve a straddled or adjacent public water system; if it is required
on a temporary, short-term, or emergency basis to meet public health
and safety needs; or if it comprises an exportation of wastewater. The
proposed amendments provide that in reviewing proposed exportations, an
analysis of alternatives to the proposed exportation will be
considered, along with factors that include the effects of the proposal
on public health and safety and effectuation of the Comprehensive Plan.
The amended rules will further the Commission's objectives of
conserving, utilizing, managing, and controlling the Basin's water
resources by ensuring that the uses included within the Comprehensive
Plan are protected, and will preserve the diversions, compensating
releases, rights, conditions, and obligations of the parties to the
U.S. Supreme Court Decree of 1954 in New Jersey v. New York, 347 U.S.
995 (1954).
Water Importation. At the time the Commission was created in 1961,
the tidal Delaware River suffered from water quality impairments that
included severe hypoxia (lack of dissolved oxygen) annually from May
through November, preventing the passage of fish species that migrate
between marine and fresh waters to reproduce. A key step in the
Estuary's restoration was the establishment of water quality uses and
criteria by the Commission in 1967. Because even after treatment,
wastewater typically contains oxygen-depleting substances, the
Commission has for decades used wasteload allocations for carbonaceous
oxygen demand to protect the uses it established, including by
maintaining dissolved oxygen in the Estuary at levels sufficient to
support aquatic life.\10\
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\10\ See Delaware River Basin Water Code, sections 3.30.2 D.2,
3.30.3 D.2, 3.30.4 D.2, 3.30.5 D.2, 3.30.6 D.2.
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The presence of persistent bioaccumulative toxic contaminants in
sediment, the water column and fish tissue is a legacy of the Delaware
River Estuary's nearly two centuries of industrial use. Although water
quality improvements over the past fifty years have substantially
increased the variety and abundance of Estuary fish, multiple species
are contaminated with polychlorinated biphenyls (``PCBs''), dioxins and
furans, mercury, and dieldrin at levels exceeding human health risk
advisory limits for their consumption.\11\ By Resolution No.
[[Page 66252]]
2000-4 the Commission in 2000 determined that allocations of the waste
assimilative capacity of the Estuary were necessary in Water Quality
Zones 2 through 5 to maintain stream quality objectives for acute
toxicity and chronic toxicity. The Commission and its members face new
challenges in the emergence of previously unknown contaminants now
understood to have adverse impacts on human health and aquatic life.
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\11\ See Delaware Department of Natural Resources and
Environmental Control, Delaware Fish Consumption Advisories (Jan.
2018), available at: https://documents.dnrec.delaware.gov/fw/Fisheries/Documents/2018-Delaware-Fish-Consumption-Advisory-Table.pdf; New Jersey Department of Environmental Protection & New
Jersey Department of Health, Fish Smart, Eat Smart: A guide to
Health Advisories for Eating Fish and Crabs Caught in New Jersey
Waters (Nov. 2020), available at: https://www.nj.gov/dep/dsr/fish-advisories.pdf; Pennsylvania Department of Environmental Protection,
Commonwealth of Pennsylvania Public Health Advisory 2021 Fish
Consumption (Feb. 2021), available at: https://pfbc.pa.gov/fishpub/summaryad/sumconsumptionotepdf.
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Although water quality management objectives in the Delaware River
Estuary have of necessity prioritized restoration, the focus in the
non-tidal Delaware River has been to prevent degradation of waters that
are exceptionally clean. By resolutions in 1992, 2005, and 2008, the
Commission designated the entire 197-mile reach of the non-tidal main
stem Delaware River from Hancock, New York, to Trenton, New Jersey, as
``Special Protection Waters,'' due to their exceptionally high scenic,
recreational, ecological, and water supply values. The importance of
these waters to the public is underscored by their national
designation: The non-tidal main stem within and downstream of potential
HVHF activity includes 147 river miles designated by Congress as parts
of the National Wild and Scenic Rivers System, including 113 river
miles that have also been designated as units of the National Park
System.\12\ New or expanded pollutant loadings to Special Protection
Waters--whether from imported wastewater or wastewater generated within
the Basin--are permitted only if they do not measurably change the
defined, existing water quality.
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\12\ See 16 U.S.C. 1274(a)(19)-(20) (Upper Delaware Scenic and
Recreational River and Delaware Water Gap National Recreation Area),
16 U.S.C. 1274(a)(165) (Lower Delaware River and Associated
Tributaries). Other Basin waters included in the Wild and Scenic
Rivers System and protected by state antidegradation programs
include: 190 miles of the White Clay Creek and its tributaries in
Delaware and Pennsylvania, 35 miles of the Maurice River and its
tributaries in New Jersey, and 25 miles of the Musconetcong River,
also in New Jersey. See, 16 U.S.C. 1274(a)(163) (White Clay Creek
and its tributaries); 16 U.S.C. 1274(a)(146)-(149) & 1274(a)(151)-
(153) (Maurice River and its tributaries); 16 U.S.C. 1274(a)(169)
(Musconetcong River).
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For the foregoing reasons, since June 19, 1991, the Commission's
policy as set forth in the Water Code and Comprehensive Plan is to
discourage the importation of wastewater into the Basin on grounds that
the Basin's waters ``have limited assimilative capacity and limited
capacity to accept conservative substances without significant
impacts.'' \13\ The Commission will continue to use its authority to
preclude the discharge of wastewater that would impede the restoration
of water quality and aquatic life in the tidal Delaware River or that
would degrade the Basin's Special Protection Waters.
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\13\ See Water Code section 2.30.2 (or ``limited capacity to
assimilate pollutants'' as reflected in the proposed amendments).
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The proposed rules regarding importation clarify the factors the
Commission will use in evaluating proposed importations that meet the
existing thresholds for review established by the Commission's Rules of
Practice and Procedure. Although importations of wastewater are
``discouraged,'' they may be permitted after careful consideration to
ensure that available alternatives have been evaluated, treatment is
employed to ensure applicable water quality criteria are achieved,
restoration efforts are not impeded, and uses incorporated in the
Commission's Comprehensive Plan are protected. The amended rules will
further the Commission's objectives of conserving, utilizing, managing,
and controlling the Basin's water resources by ensuring continued
protection of the uses included within the Comprehensive Plan.
Notably, to date, the Commission has not approved transfers into
the Basin of wastewater associated with HVHF, and no applications for
such transfers are under consideration. Additionally, in many
instances, the Commission has conditioned its approvals of wastewater
discharge projects on a requirement that no importation, treatment or
discharge of HVHF wastewater may be undertaken by a docket holder
without the Commission's prior review and approval. As discussed below,
amendments to the Commission's Special Regulations at 18 CFR part 440--
High Volume Hydraulic Fracturing are being proposed that would prohibit
the discharge of HVHF wastewater to water or land within the Basin.
Prohibition on Discharge of Wastewater from HVHF and HVHF-Related
Activities. The Commission's Comprehensive Plan and Water Code provide
in part that ``[t]he quality of Basin [surface] waters, except
intermittent streams, shall be maintained in a safe and satisfactory
condition'' for uses that include, ``agricultural, industrial, and
public water supplies after reasonable treatment, except where natural
salinity precludes such uses; . . . wildlife, fish and other aquatic
life; recreation; navigation; [and] controlled and regulated waste
assimilation to the extent that such use is compatible with other
uses.'' \14\ Similarly, the Comprehensive Plan and Water Code provide
that the quality of ground waters of the Basin ``shall be maintained in
a safe and satisfactory condition, except where such uses are precluded
by natural quality, for . . . domestic, agricultural, industrial, and
public water supplies; [and] . . . a source of surface water suitable
for recreation, wildlife, fish and other aquatic life.'' \15\
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\14\ Water Code, section 3.10.2. B.
\15\ Id., section 3.40.3.
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In its proposed and final rules prohibiting HVHF within the Basin
in November 2017 and February 2021, respectively,\16\ the Commission
recognized that the treatment disposal of HVHF wastewater, among other
activities associated with HVHF, posed risks, vulnerabilities and
impacts to the Basin's water resources.\17\ The peer-reviewed science
discussed in detail in the Comment and Response Document adopted
concurrently with the Commission's final rule (hereinafter, the
``CRD'') \18\ demonstrates that for a variety of reasons, protecting
public health and preserving the Basin's water resources for uses in
accordance with the Comprehensive Plan require that discharges of HVHF
wastewater to Basin waters or land be prohibited.
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\16\ 83 FR 1586, Jan. 12, 2018; 86 FR 20628, Apr. 21, 2021.
\17\ See, e.g., DRBC Resolution No. 2021-01, p. 4, par. 4.
Available at: https://www.state.nj.us/drbc/library/documents/Res2021-01_HVHF.pdf. See generally, Delaware River Basin Commission,
Comment and Response Document: Proposed Amendments to the
Administrative Manual and Special Regulations Regarding High Volume
Hydraulic Fracturing Activities; Additional Clarifying Amendments,
Feb. 25, 2021 (hereinafter, ``CRD''), at, e.g., pp. E-1, 65-66
(``Synthesis'' of response to comments concerning spills); pp. 158-
59 (water quality impacts from discharges of treated hydraulic
fracturing wastewater). The CRD is available at: https://www.state.nj.us/drbc/library/documents/CRD_HVHFrulemaking.pdf.
\18\ See CRD, supra note 15.
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Hydraulic fracturing wastewater may contain a complex blend of
constituents, including known carcinogens, neurotoxins, or endocrine
disruptors, or are characterized by reproductive or developmental
toxicity or adverse immune system effects.\19\ As discussed
[[Page 66253]]
at length in the CRD, some of the chemicals used are not known because
they are accorded protection as trade secrets.\20\ The U.S.
Environmental Protection Agency (hereinafter, ``EPA''), has reported
that the majority of chemicals associated with hydraulic fracturing,
both known and unknown, have not undergone significant toxicological
assessment.\21\ The impacts from those chemicals to human health and
aquatic life are thus undetermined.\22\ In addition to the potential
pollutants in fracturing fluid, the fluid returned from an oil or
natural gas well after HVHF (typically called ``produced water'' and
including ``flowback water'') is mixed with water from the target
formation, which contains: Salts, including chloride, bromide, sulfate
sodium, magnesium, and calcium; metals, including barium, manganese,
iron, and strontium; naturally-occurring organic compounds, including
benzene, toluene, ethylbenzene, and xylenes; oil and grease; and
radioactive materials, including radium, found in ancient sea water
trapped within the oil- and gas-bearing shale formations.\23\
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\19\ CRD, supra note 15, pp. 131, 161, and 255 (citing E.G.
Elliott, et al., A systematic evaluation of chemicals in hydraulic-
fracturing fluids and wastewater for reproductive and developmental
toxicity, J. Exposure Science & Environmental Epidemiology, 27: 90-
99 (2017)). See also, United States Environmental Protection Agency
(``U.S. EPA''), Hydraulic fracturing for oil and gas: Impacts from
the hydraulic fracturing water cycle on drinking water resources in
the United States (final report) (EPA/600/R-16/236F) (2016)
(hereinafter ``U.S. EPA 2016 Assessment''), p. ES-20; U.S. EPA,
Technical development document for the effluent limitations
guidelines and standards for the oil and gas extraction point source
category (EPA-820-R-16-003), 2016, pp. 43-47 (Sec. 1.2).
\20\ See CRD, supra note 15, pp. 259-264.
\21\ Id., p. 132 (citing U.S. EPA 2016 Assessment, supra note
17, p. ES-42-45, 9-1).
\22\ U.S. EPA, Detailed study of the centralized waste treatment
point source category for facilities managing oil and gas extraction
wastes. (EPA-821-R-18-004) (2018), p. 9-36. Available at: https://www.epa.gov/sites/default/files/2018-05/documents/cwt-study_may-2018.pdf.
\23\ CRD, supra note 15, pp. E-6, 71.
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A report by the U.S. Geological Survey (``USGS'') observed that the
salts in shale waters (which are sometimes referred to as ``total
dissolved solids'' or ``TDS'') reached extreme concentrations over
millions of years, and their chemical interactions with surrounding
rock can mobilize radionuclides.\24\ The USGS authors cite
radioactivity as a key characteristic of the HVHF waste stream that
potentially represents a substantial risk to water resources, aquatic
ecosystems and biota, and public health, if released.\25\
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\24\ CRD, supra note 15, p. 84 (citing E.L. Rowan, et al.,
Radium content of oil- and gas-field produced waters in the Northern
Appalachian Basin (USA): Summary and discussion of data, U.S.
Department of the Interior, U.S. Geological Survey: Scientific
Investigations Report 2011-5135 (2011)).
\25\ CRD, supra note 15, p. 86 (citing E.L. Rowan, et al., supra
note 22) (also noting that chemically, radium behaves in a manner
similar to calcium and is capable of bioaccumulation in plants and
animals).
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Wastes associated with oil and natural gas exploration, development
and production, including oil and gas drilling fluids and produced
waters, are exempt from federal regulations for the management of
hazardous wastes.\26\ But these wastes may cause harm to public health
and the environment if they are not properly managed. The CRD
references multiple studies documenting adverse impacts to water
resources from HVHF wastewater after treatment, whether by municipal or
industrial treatment facilities.\27\ Because produced water contains
high TDS and dissolved inorganic constituents that most publicly owned
treatment works and other municipal wastewater treatment facilities are
not designed to remove, EPA in 2016 issued a final rule banning the
treatment and discharge of oil and gas extraction wastewater from
publicly owned treatment works (``POTWs'').\28\ Privately owned
treatment works that treat primarily domestic and commercial wastewater
remain outside the scope of EPA's ``zero discharge'' rule.
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\26\ See, e.g., U.S. Environmental Protection Agency, Office of
Solid Waste, Exemption of Oil and Gas Exploration and Production
Wastes from Federal Hazardous Waste Regulations, EPA530-K-01-004
(2002).
\27\ See CRD, supra note 15, pp. 18-19, 128-143. See also U.S.
EPA, infra note 26 (regarding impacts associated with discharges
from municipal wastewater treatment plants); U.S. EPA, supra note 20
(regarding impacts associated with discharges from the industrial
wastewater treatment facilities known as ``CWTs'').
\28\ U.S. EPA, Effluent Limitations Guidelines and Standards for
the Oil and Gas Extraction Point Source Category, 81 FR 41845 (Aug.
29, 2016) (preamble). See also 81 FR 88126 (Dec. 7, 2016) (extending
deadline for compliance); CRD, supra note 15, pp. 18-19, 128.
---------------------------------------------------------------------------
The Commonwealth of Pennsylvania manages the risks associated with
disposal of HVHF wastewater in part through a detailed statute and
regulations focused on protecting water resources and public health
while preserving commercial interests. Regulations adopted in 2010
pursuant to the Pennsylvania Clean Streams Law address risks associated
with HVHF wastewater treatment and discharge by limiting new discharges
of TDS, chlorides, barium and strontium in treated wastewater,
regardless of the type of discharge--public, private, municipal or
industrial.\29\
---------------------------------------------------------------------------
\29\ 25 Pa. Code section 95.10. See also CRD, supra note 15, pp.
132, 178.
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Research has demonstrated that even with specialized treatment,
however, the discharge of HVHF wastewater to surface waters can
adversely impact downstream waters. The Commission's CRD contains an
extensive discussion of the potential risks associated with the
treatment and discharge of HVHF wastewater to Basin waters from
CWTs.\30\ The Commission concluded that treatment of HVHF wastewater at
CWTs with subsequent discharge of effluent to the waters of the Basin
would present significant risks to the receiving waters.\31\
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\30\ See CRD, supra note 15, pp. 130-143, 178. See generally
U.S. EPA, supra note 20.
\31\ See CRD, supra note 15, p. 138.
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Growth in Marcellus shale gas production is anticipated,\32\ and in
the Marcellus production area immediately west of the Basin, recent
data show increasing water use by the shale gas production industry,
which may result in increasing volumes of wastewater.\33\ Although
additional factors may affect demand for HVHF wastewater treatment and
discharge options, these shale gas production and water use trends
create the potential for increased demand for CWT services in the
region.\34\ To protect the public health and preserve the waters of the
Basin for uses in accordance with the Comprehensive Plan, the
Commission thus proposes to prohibit the discharge of treated or
untreated HVHF wastewater to waters or land within the Basin.
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\32\ U.S. EPA, supra note 20, p. 8-6.
\33\ See CRD, supra note 15, p. 16 (reporting increased length
of natural gas well laterals and increased use of water per foot of
well fractured in the Susquehanna River Basin, which adjoins the
Basin) (citing Susquehanna River Basin Commission, Water use
associated with natural gas development in the Susquehanna River
Basin: An update of activities through December 2018 (Publication
No. 323) (2020)).
\34\ See U.S. EPA, supra note 20, pp. 8-4--8-6.
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Water Quality Regulations. To facilitate the alignment of certain
Basin state discharge permits with the Commission's proposed
regulations regarding wastewater from high volume hydraulic fracturing,
the Commission further proposes to amend its Water Quality Regulations,
Article 4--Application of Standards. The proposed amendment would
consist of a new section 4.50, captioned ``Wastewater from High Volume
Hydraulic Fracturing and Related Activities,'' expressly incorporating
into the Water Quality Regulations the determination and prohibition
comprising Sec. 440.4 of title 18 of the CFR, and the purpose and
definitions encompassing Sec. Sec. 440.1 and 440.2. Existing section
4.50 of the Water Quality Regulations and its sub-paragraphs 4.50.1
through 4.50.6 are
[[Page 66254]]
proposed to be redesignated as section 4.60 and 4.60.1 through 4.60.6.
Incorporation by Reference. The entirety of the Water Code,
including section 2.30, and the entirety of the Water Quality
Regulations, including Article 4, are incorporated by reference into
the Code of Federal Regulations at 18 CFR 410.1, and each was last
approved for incorporation by reference by the Office of the Federal
Register (``OFR'') on December 4, 2013. In accordance with OFR's
regulations concerning incorporation by reference,\35\ the sections of
this preamble titled ``Water Importation,'' ``Water Exportation,'' and
``Water Quality Regulations,'' summarize the proposed amendments to
section 2.30 of the Water Code and Article 4 of the Water Quality
Regulations.
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\35\ See 1 CFR part 51. See also, id., Sec. 51.5B.
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The Commission further proposes: (a) To amend Sec. 410.1(c) of
title 18 of the Code of Federal Regulations by replacing the date of
incorporation by reference there with respect to each of the Water Code
and Water Quality Regulations (both, December 4, 2013), with the date
on which the Commission adopts a final rule pursuant to this proposal;
and (b) to update the Commission's mailing and website addresses.
Interested persons may obtain or inspect copies of the Water Code
and the Water Quality Regulations at the Delaware River Basin
Commission, 25 Cosey Road, West Trenton, New Jersey 08628-0360, 609-
883-9500, or on the Commission's website, www.drbc.gov.
Public Process
Substance of comments: The Commission expressly seeks comment on
the effects the proposed rules may have within the Basin on: Water
availability, the control and abatement of water pollution, economic
development, the conservation and protection of drinking water
supplies, the conservation and protection of aquatic life, the
conservation and protection of water quality in Special Protection
Waters, and the protection, maintenance and improvement of water
quantity and quality Basinwide. The Commission welcomes and will
consider any other comments that concern the potential effects of the
draft rules on the conservation, utilization, development, management
and control of the water and related resources of the Basin. Comments
on matters not within the scope of the proposed rules may not be
considered.
Non-digitized, voluminous materials such as books, journals or
collected letters and petitions will not be accepted. Digital
submissions of articles and websites must be accompanied by a statement
containing citations to the specific findings or conclusions the
commenter wishes to reference.
Submission of written comments. Written comments along with any
attachments should be submitted through the Commission's web-based
comment system (https://dockets.drbc.commentinput.com) until 5 p.m. on
February 28, 2022. All materials should be provided in searchable
formats, preferably in .pdf searchable text. Notably, a picture scan of
a document may not result in searchable text. Comments received through
any method other than the designated on-line method, including via
email, fax, postal/delivery services or hand delivery, will not be
considered or included in the rulemaking record unless an express
exception has been granted. Requests for exceptions from the web-based-
submissions-only policy based on lack of access to the web-based
comment system may be addressed to: Commission Secretary, DRBC, P.O.
Box 7360, West Trenton, NJ 08628.
Public hearings. To provide for an orderly process and to support
public and community health measures, the Commission is conducting its
public hearings virtually. Attendance at the hearings is not limited
and requires no registration. However, to eliminate uncertainty on the
part of attendees about whether they will have an opportunity to
provide oral comment, those who wish to speak at a hearing must
register in advance to do so, using links on the Commission's website.
Registrations will be monitored, and if capacity is not adequate to
accommodate all who wish to speak, additional opportunities may be
added. Key elements of the procedure are as follows:
[ssquf] Online registration to speak at a public hearing will
remain open until 5 p.m. the day prior to each hearing.
[ssquf] Each person who wishes to provide oral comment may do so at
only one public hearing.
[ssquf] Speaking time will be limited to approximately three
minutes per speaker.
[ssquf] Elected government officials and their staff will have the
opportunity to identify themselves when registering to attend a
hearing.
[ssquf] Attendance at the public hearings is not limited and
requires no advance registration.
[ssquf] Written and oral comment will receive equal consideration.
The Commission appreciates the public's participation and input on
this important matter.
More Information. Detailed and up-to-date information about the
public process, including all proposed rule text, related documents and
links for online registration to speak at each of the scheduled public
hearings, can be found on the DRBC website, www.drbc.gov.
List of Subjects
18 CFR Part 410
Incorporation by reference, Water pollution control, Water
resources, Water supply.
18 CFR Part 440
Wastewater discharge, Water pollution control, Water resources.
For the reasons set forth in the preamble, the Delaware River Basin
Commission proposes to amend title 18, chapter III of the Code of
Federal Regulations as follows:
PART 410--BASIN REGULATIONS; WATER CODE AND ADMINISTRATIVE MANUAL--
PART III WATER QUALITY REGULATIONS
0
1. The authority citation for part 410 continues to read as follows:
Authority: Delaware River Basin Compact, 75 Stat. 688.
0
2. Amend Sec. 410.1 by revising paragraph (c) to read as follows.
Sec. 410.1 Basin regulations--Water Code and Administrative Manual--
Part III Water Quality Regulations.
* * * * *
(c) Work, services, activities, and facilities affecting the
conservation, utilization, control, development, or management of water
resources within the Delaware River Basin are subject to regulations
contained within the Delaware River Basin Water Code with Amendments
through [EFFECTIVE DATE OF FINAL RULE], and the Administrative Manual--
Part III Water Quality Regulations with Amendments through [EFFECTIVE
DATE OF FINAL RULE]. Both the Delaware River Basin Water Code and the
Administrative Manual--Part III Water Quality Regulations are
incorporated by reference into this part with the approval of the
Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part
51. You may obtain or inspect copies at the Delaware River Basin
Commission (DRBC), 25 Cosey Road, West Trenton, New Jersey 08628-0360,
609-883-9500, www.drbc.gov, or at the National Archives and Records
[[Page 66255]]
Administration (NARA). For information on the availability of this
material at NARA, email [email protected] or go to
www.archives.gov/federal-register/cfr/ibr-locations.html.
PART 440--HIGH VOLUME HYDRAULIC FRACTURING
0
3. The authority citation for part 440 continues to read as follows:
Authority: Delaware River Basin Compact (75 Stat. 688).
0
4. Amend Sec. 440.1 by revising paragraph (d) to read as follows:
Sec. 440.1 Purpose, authority, and relationship to other
requirements.
* * * * *
(d) Relationship to other Commission requirements. The provisions
of this part are in addition to all applicable requirements in other
Commission regulations in this chapter, dockets, permits, and
determinations.
* * * * *
0
5. Amend Sec. 440.2 by revising the introductory text, adding in
alphabetical order definitions for ``HVHF-related activities'' and
``Wastewater from high volume hydraulic fracturing'', and revising the
definition of ``Water resource(s)'' to read as follows:
Sec. 440.2 Definitions.
For purposes of this part, the following terms and phrases have the
meanings provided. Some definitions differ from those provided in
regulations of one or more agencies of the Commission's member states
and the Federal Government. Others are consistent with terms defined by
the Delaware River Basin Compact.
* * * * *
HVHF-related activities are:
(1) Construction of an oil or natural gas production well that is
to be stimulated using HVHF as defined in this section;
(2) Chemical mixing or storage of proppant, chemicals and other
additives to make fracturing fluid; and
(3) Management of wastewater from hydraulic fracturing, including
storage, disposal, treatment, or reuse in hydraulic fracturing
operations or other uses.
* * * * *
Wastewater from high volume hydraulic fracturing is:
(1) Any wastewater, brine, sludge, chemicals, naturally occurring
radioactive materials, heavy metals, or other contaminants that have
been used for or generated by high volume hydraulic fracturing or HVHF-
related activities;
(2) Leachate from solid wastes associated with HVHF-related
activities, except if the solid wastes were lawfully disposed of in a
landfill within the Basin prior to [EFFECTIVE DATE OF FINAL RULE]; and
(3) Any products, co-products, byproducts, or waste products
resulting from the treatment, processing, or modification of the
wastewater described in paragraphs (1) and (2) of this definition.
(4) Leachate from solid wastes associated with HVHF-related
activities is excluded from this definition if the solid wastes were
lawfully disposed of in a landfill within the Basin prior to [EFFECTIVE
DATE OF FINAL RULE].
Water resource(s) is, in accordance with section 1.2(i) of the
Delaware River Basin Compact, water and related natural resources in,
on, under, or above the ground, including related uses of land, which
are subject to beneficial use, ownership or control within the Delaware
River Basin.
0
6. Add Sec. 440.4 to read as follows:
Sec. 440.4 Wastewater from high volume hydraulic fracturing and
related activities.
(a) Determination. The Commission has determined that the discharge
of wastewater from high volume hydraulic fracturing and HVHF-related
activities poses significant, immediate, and long-term risks to the
development, conservation, utilization, management, and preservation of
the Basin's water resources. Controlling future pollution by
prohibiting such discharge is required to effectuate the Comprehensive
Plan, avoid injury to the waters of the Basin as contemplated by the
Comprehensive Plan and protect the public health and preserve the
waters of the Basin for uses in accordance with the Comprehensive Plan.
(b) Prohibition. No person may discharge wastewater from high
volume hydraulic fracturing or HVHF-related activities to waters or
land within the Basin.
Dated: October 28, 2021.
Pamela M. Bush,
Commission Secretary/Assistant General Counsel.
[FR Doc. 2021-24152 Filed 11-19-21; 8:45 am]
BILLING CODE P
