[Federal Register Volume 62, Number 108 (Thursday, June 5, 1997)]
[Rules and Regulations]
[Pages 30761-30763]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-14720]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 136

[FRL-5835-9]


Guidelines Establishing Test Procedures for the Analysis of 
Pollutants; Application for Approval of Alternate Test Procedures

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; change in address.

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SUMMARY: By this action, the Environmental Protection Agency (EPA) 
announces an internal transfer of administrative responsibilities for 
the evaluation of alternate test procedures under Clean Water Act 
section 304(h). EPA has transferred responsibilities from the 
Environmental Monitoring Systems Laboratory in Cincinnati (EMSL-Ci), 
now called the National Exposure Research Laboratory (NERL), in the 
Office of Research and Development (ORD) to the Office of Science and 
Technology in the Office of Water (OW). This action officially 
announces the change in internal delegation of responsibility for 
administering the alternate test procedure (ATP) program (from the 
EMSL-Ci laboratory to the Headquarters office in Washington, D.C.) and 
revises the address in those sections of title 40 of the Code of 
Federal Regulations (CFR) which describe the process for submission of 
ATP applications to the Agency.

DATES: Effective on June 5, 1997.

ADDRESSES: Applications for alternate test procedures should be sent to 
the Director, Analytical Methods Staff, Office of Science and 
Technology (4303), Office of Water, U.S. Environmental Protection 
Agency, 401 M Street, SW., Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT: Ben J. Honaker, Analytical Methods 
Staff, Office of Science and Technology (4303), USEPA, 401 M Street, 
SW., Washington, DC 20460; phone: (202) 260-2272.

SUPPLEMENTARY INFORMATION:

Regulated Entities

    Entities potentially regulated by this action are those who seek 
EPA approval of analytical technologies for monitoring under the 
provisions of the Clean Water Act (CWA) and the Safe Drinking Water Act 
(SDWA). Entities potentially regulated by this action are listed in the 
table below. These entities potentially include consensus methods 
organizations that publish compendia of analytical methods for water, 
and equipment manufacturers, instrument manufacturers and laboratories 
that modify compliance methods or seek approval of new methods for 
compliance monitoring.

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                Category                  Examples of regulated entities
------------------------------------------------------------------------
Public.................................  Government laboratories that   
                                          develop analytical methods for
                                          compliance with the CWA and   
                                          the SDWA.                     
Private................................  Commercial laboratories,       
                                          consensus methods             
                                          organizations, instrument     
                                          manufacturers, vendors, and   
                                          other entities that develop or
                                          publish analytical methods for
                                          compliance with the CWA and   
                                          the SDWA.                     
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. This table lists the types of entities that EPA is now aware 
could potentially be regulated by this action. Other types of entities 
not listed in the table could also be regulated. To determine whether 
your organization is regulated by this action, you should carefully 
examine the applicability criteria in section 136.1 of title 40 of the 
Code of Federal Regulations. If you have questions regarding the 
applicability of this action to a particular entity, consult the person 
listed in the preceding FOR FURTHER INFORMATION CONTACT section.

I. Authority

    The Clean Water Act requires the EPA Administrator to promulgate 
effluent limitations guidelines for specified categories and classes of 
point sources. Section 301 of the CWA prohibits the discharge of any 
pollutant into navigable waters unless the discharge complies with the 
National Pollutant Discharge Elimination System (NPDES) permit issued 
under section 402 of the CWA. Section 307 requires the EPA 
Administrator to publish regulations establishing pretreatment 
standards for introduction of pollutants into publicly owned treatment 
works (POTWs). Section 401 requires certification for the construction 
or operation of facilities which may result in any discharge into 
navigable waters.
    Section 304(h) of the Clean Water Act requires the EPA 
Administrator to promulgate guidelines establishing test procedures for 
the analysis of pollutants. EPA's approval of analytical methods is 
authorized under section 304(h) of the CWA, as well as the general 
rulemaking authority in section 501(a) of the Act. EPA uses these test 
procedures to support the development of effluent limitations 
guidelines, to establish compliance with NPDES permits, for 
implementation of pretreatment standards, and for section 401 
certifications.
    The section 304(h) test procedures (analytical methods) are 
specified in part 136 of title 40 of the Code of Federal Regulations 
(CFR). The test procedures prescribed in part 136 are used for the 
applications indicated above unless an alternate test procedure (ATP) 
has been specifically approved by the EPA Administrator or the Regional 
Administrator. The ATP application and approval process for new methods 
and method modifications is specified at 40 CFR 136.4 and 136.5.

II. Purpose

    The purpose of today's notice is to announce the change in the 
internal EPA delegation of responsibility for the wastewater ATP 
program within EPA and to revise the address published in the CFR for 
submitting ATP applications to the Agency. Prior to today's action, the 
Administrator had delegated responsibility for processing ATP 
applications to the Environmental Monitoring Systems Laboratory in 
Cincinnati (EMSL-Ci), for both wastewater and drinking water ATP 
applications. Thus, the regulations at 40 CFR 136.4 and 136.5 directed 
those applications to be sent to the EMSL-Ci address. To ``streamline'' 
Agency processes for action on analytical methods, EPA shifted the 
internal delegation of responsibility from the office in Cincinnati to 
the Headquarters EPA office in Washington, DC. To expedite processing 
of all wastewater and drinking water ATP applications, applicants 
should send them to the

[[Page 30762]]

Headquarters EPA office in Washington, DC rather than to Cincinnati.
    EPA proposed revisions to these regulations in the March 28, 1997 
Federal Register (62 FR 14976). The proposed action would streamline 
the Office of Water's methods approval programs and would significantly 
change the current ATP process if finalized. At the present time, 
however, the ATP process for wastewater methods described at 40 CFR 
136.4 and 136.5 remains in effect.

III. Administrative Procedure Act

    EPA considers this notice of change in address to be exempt from 
the requirement for prior notice and opportunity to comment under 
section 553(b)(A) of the Administrative Procedure Act, 5 U.S.C. 
553(b)(A). This notice merely informs the public of a change of Agency 
organization, procedure, or practice. EPA also finds, for good cause, 
that the opportunity for public comment is unnecessary because the EPA 
personnel in Cincinnati no longer administer the CWA program for review 
of alternate test procedures; so the change is ministerial and there is 
no substantive issue for comment. For the same reasons, today's notice 
is not subject to the delayed effective date provisions of APA section 
553(d). Any unnecessary delay caused by the need to forward 
applications from Cincinnati to Washington, DC also impedes the 
expeditious processing of alternative test method applications.

IV. Regulatory Analysis

A. Executive Order 12866

    Under Executive Order 12866 [58 FR 51735 (October 4, 1993)], the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines ``significant regulatory action'' as 
one that is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more, 
or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    It has been determined that this rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and is 
therefore not subject to OMB review.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., requires EPA 
and other agencies to prepare a final regulatory flexibility analysis 
for regulations that have a significant impact on a substantial number 
of small entities. This regulatory action does not have any adverse 
impact on either small or large entities. Therefore, a regulatory 
flexibility analysis is not required. Pursuant to section 605(b) of the 
Regulatory Flexibility Act, 5 U.S.C. 605(b), the Administrator 
certifies that this rule will not have a significant economic impact on 
a substantial number of small entities.

C. Unfunded Mandates

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. 
L. 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation of why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    Today's rule contains no Federal mandates (under the regulatory 
provisions of Title II of the UMRA) for State, local, or tribal 
governments or the private sector. In addition, EPA has determined that 
this rule contains no regulatory requirements that might significantly 
or uniquely affect small governments. This rulemaking merely announces 
a change in address for applications for alternate test procedures 
under the Clean Water Act and Safe Drinking Water Act. Therefore, 
today's rule is not subject to the requirements of sections 202, 203 
and 205 of the UMRA.

D. Paperwork Reduction Act

    This rule contains no information collection requirements and 
consequently is not subject to the Paperwork Reduction Act, 44 U.S.C. 
3501 et seq.

E. Submission to Congress and the General Accounting Office Under the 
Small Business Regulatory Enforcement and Fairness Act (SBREFA)

    Under section 801(a)(1)(A) of the Administrative Procedure Act 
(APA) as amended by the Small Business Regulatory Enforcement Fairness 
Act of 1996, EPA submitted a report containing this final rule and 
other required information to the U.S. Senate, the U.S. House of 
Representatives and the Comptroller General of the General Accounting 
Office prior to publication of the rule in today's Federal Register. 
This rule is not a ``major rule'' as defined by section 804(2) of the 
APA as amended.

List of Subjects in 40 CFR Part 136

    Environmental protection, Laboratories, Reporting and recordkeeping 
requirements, Water pollution control.

    Dated: May 29, 1997.
Robert Perciasepe
Assistant Administrator for Water.

    For the reason set out in the preamble, part 136 of title 40 of the 
Code of Federal Regulations is amended as set forth below:

PART 136--GUIDELINES ESTABLISHING TEST PROCEDURES FOR THE ANALYSIS 
OF POLLUTANTS

    1. The authority citation for 40 CFR part 136 continues to read as 
follows:


[[Page 30763]]


    Authority: Secs. 301, 304(h), 307 and 501(a), Pub. L. 95-217, 91 
Stat. 1566, et seq. (33 U.S.C. 1251, et seq.) (the Federal Water 
Pollution Control Act Amendments of 1972 as amended by the Clean 
Water Act of 1977).
* * * * *
    2. Section 136.4 is amended by revising paragraph (d) introductory 
text to read as follows:


Sec. 136.4  Application for alternate test procedures.

* * * * *
    (d) An application for approval of an alternate test procedure for 
nationwide use may be made by letter in triplicate to the Director, 
Analytical Methods Staff, Office of Science and Technology (4303), 
Office of Water, U.S. Environmental Protection Agency, 401 M Street, 
SW., Washington, DC 20460. Any application for an alternate test 
procedure under this paragraph (d) shall:
* * * * *
    3. Section 136.5 is amended by revising paragraphs (b) through (d), 
(e)(1), and (e)(2) to read as follows:


Sec. 136.5  Approval of alternate test procedures.

    (a) * * *
    (b) Within thirty days of receipt of an application, the Director 
will forward such application proposed by the responsible person or 
firm making the discharge, together with his recommendations, to the 
Regional Administrator. Where the Director recommends rejection of the 
application for scientific and technical reasons which he provides, the 
Regional Administrator shall deny the application, and shall forward a 
copy of the rejected application and his decision to the Director of 
the State Permit Program and to the Director of the Analytical Methods 
Staff, Washington, DC.
    (c) Before approving any application for an alternate test 
procedure proposed by the responsible person or firm making the 
discharge, the Regional Administrator shall forward a copy of the 
application to the Director of the Analytical Methods Staff, 
Washington, DC.
    (d) Within ninety days of receipt by the Regional Administrator of 
an application for an alternate test procedure, proposed by the 
responsible person or firm making the discharge, the Regional 
Administrator shall notify the applicant and the appropriate State 
agency of approval or rejection, or shall specify the additional 
information which is required to determine whether to approve the 
proposed test procedure. Prior to the expiration of such ninety day 
period, a recommendation providing the scientific and other technical 
basis for acceptance or rejection will be forwarded to the Regional 
Administrator by the Director of the Analytical Methods Staff, 
Washington, DC. A copy of all approval and rejection notifications will 
be forwarded to the Director, Analytical Methods Staff, Washington, DC, 
for the purposes of national coordination.
    (e) Approval for nationwide use. (1) Within sixty days of receipt 
by the Director of the Analytical Methods Staff, Washington, DC, of an 
application for an alternate test procedure for nationwide use, the 
Director of the Analytical Methods Staff shall notify the applicant in 
writing whether the application is complete. If the application is 
incomplete, the applicant shall be informed of the information 
necessary to make the application complete.
    (2) Within ninety days of the receipt of a complete package, the 
Analytical Methods Staff shall perform any analysis necessary to 
determine whether the alternate method satisfies the applicable 
requirements of this part, and the Director of the Analytical Methods 
Staff shall recommend to the Administrator that he/she approve or 
reject the application and shall also notify the applicant of such 
recommendation.
* * * * *
[FR Doc. 97-14720 Filed 6-4-97; 8:45 am]
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