[Federal Register Volume 66, Number 117 (Monday, June 18, 2001)]
[Rules and Regulations]
[Pages 32774-32776]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-15145]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 136

[FRL-6998-5]


Guidelines Establishing Test Procedures for the Measurement of 
Mercury in Water (EPA Method 1631, Revision C); Final Rule, Technical 
Corrections

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; technical corrections.

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SUMMARY: EPA is amending the ``Guidelines Establishing Test Procedures 
for the Analysis of Pollutants'' to make minor technical corrections to 
clarify the use of field blanks for mercury testing under the Clean 
Water Act. Specifically, the amendments rectify an omission in the text 
of the promulgated version of Method 1631: Mercury in Water by 
Oxidation, Purge and Trap and Cold Vapor Atomic Fluorescence 
Spectrometry.

DATES: These technical corrections are effective July 18, 2001. The 
incorporation by reference of the publication listed in today's rule is 
approved by the Director of the Federal Register as of July 18, 2001. 
For judicial review purposes, this rule is promulgated as of 1:00 p.m. 
(Eastern time) on July 2, 2001, as provided in 40 CFR 23.2.

FOR FURTHER INFORMATION CONTACT: For information regarding this rule 
contact Dr. Maria Gomez-Taylor, Engineering and Analysis Division 
(4303), USEPA Office of Science and Technology, Ariel Rios Bldg., 1200 
Pennsylvania Ave., NW., Washington, DC 20460 (e-mail: [email protected]).

SUPPLEMENTARY INFORMATION:

Potentially Regulated Entities

    EPA Regions, as well as States, Territories and Tribes authorized 
to implement the National Pollutant Discharge Elimination System 
(NPDES) program, issue permits that comply with the technology-based 
and water quality-based requirements of the Clean Water Act. In doing 
so, the NPDES permitting authority, including authorized States, 
Territories, and Tribes, make a number of discretionary choices 
associated with permit writing, including the selection of pollutants 
to be measured and, in many cases, limited in permits. If EPA has 
``approved'' standardized testing procedures (i.e., promulgated through 
rulemaking) for a given pollutant, the NPDES permit must include one of 
the

[[Page 32775]]

approved testing procedures or an approved alternate test procedure. 
Regulatory entities may, at their discretion, require use of this 
method in their permits. Therefore, entities with NPDES permits could 
be affected by the standardization of testing procedures in this 
rulemaking, because NPDES permits may incorporate the testing procedure 
in today's rulemaking. In addition, when a State, Territory, or 
authorized Tribe provides certification of Federal licenses under Clean 
Water Act section 401, States, Territories and Tribes are directed to 
use the standardized testing procedures. Categories and entities that 
may ultimately be affected include:

------------------------------------------------------------------------
                                      Examples of potentially regulated
              Category                             entities
------------------------------------------------------------------------
Regional, State and Territorial      States, Territories, and Tribes
 Governments and Tribes.              authorized to administer the NPDES
                                      permitting program; States,
                                      Territories, and Tribes providing
                                      certification under Clean Water
                                      Act section 401; Governmental
                                      NPDES permittees.
Industry...........................  Industrial NPDES permittees.
Municipalities.....................  Publicly-owned treatment works with
                                      NPDES permits.
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be affected by this 
action. This table lists the types of entities that EPA is now aware 
could potentially be affected by this action. Other types of entities 
not listed in the table could also be affected. 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.

Administrative Procedure Act

    Section 553 of the Administrative Procedure Act, 5 U.S.C. 
553(b)(B), provides that, when an agency for good cause finds that 
notice and public procedure are impracticable, unnecessary or contrary 
to the public interest, the agency may issue a rule without providing 
notice and an opportunity for public comment. EPA has determined that 
there is good cause for making today's rule final without prior 
proposal and opportunity for comment because today's rule merely 
corrects the text of a promulgated test method to reflect the Agency's 
intentions at the time it originally published the rule. Omissions to 
EPA Method 1631, Revision B, were brought to the Agency's attention by 
the members of the public after the test method was promulgated. The 
revisions to the test method clarify the use and reporting of field 
blanks, and are consistent with the discussion in the preamble to the 
final rule. In addition, this rule corrects a typographical error at 40 
CFR Part 136.3(b). The CFR contains two references with the same number 
[(b)(40)]. The second reference (40) in Section 136.3(b) has been 
renumbered (41) and reference (41) has been renumbered (42). The 
revisions to the test method and the CFR are not substantive. Thus, 
notice and public procedure are unnecessary. EPA finds that this 
constitutes good cause under 5 U.S.C. 553(b)(B).

I. EPA Method 1631, Revision B

    EPA promulgates analytical methods for pollutants under Clean Water 
Act programs at 40 CFR Part 136. In most cases, EPA has approved use of 
more than one analytical method for measurement of particular 
pollutants, and laboratories may use any approved test method for 
determining compliance with applicable requirements. From time to time, 
EPA amends 40 CFR Part 136 to approve new test methods or modifications 
to approved test methods. For new test methods or for substantive 
changes to approved test methods, EPA first publishes a notice for 
public comment and reviews any public comments received prior to making 
a final decision on approval.
    EPA proposed Method 1631: Mercury in Water by Oxidation, Purge and 
Trap, and Cold Vapor Atomic Fluorescence Spectrometry on May 26, 1998 
(63 FR 28867), and then, after revisions following public comment, EPA 
promulgated Method 1631, Revision B on June 8, 1999 (64 FR 30417). On 
October 19, 2000, EPA entered into a Settlement Agreement to resolve 
litigation over the final rule in Alliance of Automobile Manufacturers, 
et al. v. EPA, No. 99-1420 (D.C. Cir.).
    Under the Settlement Agreement, the Agency agreed to revise 
sections 12.4.2 and 9.4.3.3 of the test method to clarify the use of 
field blank subtraction (section 12.4.2) and the use of multiple field 
blanks (section 9.3.3.3) to determine whether test samples should be 
used for compliance monitoring purposes. At the time EPA published the 
challenged rulemaking, the Agency had intended to incorporate these 
changes into the rule, as reflected by the preamble and the comment-
response document in the public record. The version of Method 1631 
promulgated today now incorporates these technical corrections. No 
other changes are being made to the text of the referenced test 
protocol.
    EPA will take actions to implement other provisions of the 
Settlement Agreement separately. For example, EPA agreed to propose 
additional clean techniques and quality control requirements for EPA 
Method 1631 in a Federal Register notice that is scheduled for 
signature by September 15, 2001. Today's action only addresses the use 
and reporting of field blank results.
    Today's rule contains only minor technical corrections to EPA 
Method 1631, Revision B and provides a revised version reflecting these 
technical corrections. As required by the Office of the Federal 
Register, EPA submitted a revised version of the test method to the 
Director of the Federal Register for approval for incorporation by 
reference. The revised version submitted to the Director is EPA Method 
1631, Revision C. In today's rule, the full reference to the test 
method in 40 CFR 136.3(b)(40) is being amended to reflect the updated 
test method (i.e., Revision C).
    By today's action, EPA has revised the following sections of EPA 
Method 1631:
    A. Section 9.4.3.3: This text is revised to clarify that, if 
sufficient multiple field blanks (a minimum of three) are collected, 
and the average concentration (of the multiple field blanks) plus two 
standard deviations is equal to or greater than the regulatory 
compliance limit or equal to or greater than one-half of the level in 
the associated test sample, results for associated test samples may be 
the result of contamination and may not be reported or otherwise used 
for regulatory compliance purposes.
    B. Section 12.4.2: This text has been revised to clarify that 
results for mercury in samples, reagent blanks and field blanks must be 
reported separately. In addition, if blank correction is requested or 
required by a regulatory authority or in a permit, the concentration of 
mercury in the reagent blank or the field blank is subtracted from the 
concentration of mercury in

[[Page 32776]]

the sample to obtain the net sample mercury concentration.
    Based on the preamble text for the June 8, 1999, final rule and the 
response to comments document that supports the final rule, it is 
apparent that the Agency intended to allow for field blank subtraction 
and for not using test sample results for regulatory compliance if 
multiple field blanks do not meet the specifications at 9.4.3.3. This 
correction does not add any new requirements to the regulated 
community. To the contrary, it provides additional flexibility by 
allowing the use of field blank subtraction and by not requiring the 
reporting of test samples that may be contaminated based on results 
from field blank analyses. The rest of EPA Method 1631 is unchanged 
from the previously promulgated EPA Method 1631, Revision B.

II. Administrative Requirements

    This technical correction action does not involve technical 
standards; thus, the requirements of section 12(d) of the National 
Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do 
not apply. This rule does not impose an information collection burden 
under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.). EPA's compliance with these statutes and Executive 
Orders or their predecessors for the underlying rule is discussed in 
the June 8, 1999 Federal Register notice (64 FR 30417).
    The Congressional Review Act (5 U.S.C. 801 et seq.), as added by 
the Small Business Regulatory Enforcement Fairness Act of 1996, 
generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. Section 808 allows the issuing agency to 
make a rule effective sooner than otherwise provided by the CRA if the 
agency makes a good cause finding that notice and public procedure is 
impracticable, unnecessary or contrary to public interest. This 
determination must be supported by a brief statement. 5 U.S.C. 808(2). 
As stated previously, EPA has made such a good cause finding, including 
the reasons therefor, and established an effective date of July 18, 
2001. EPA will submit a report containing this rule and other required 
information to the U.S. Senate, the U.S. House of Representatives, and 
the Comptroller General of the United States prior to publication of 
the rule in the Federal Register. This action is not a ``major rule'' 
as defined by 5 U.S.C. 804(2).

III. Materials Incorporated by Reference Into 40 CFR Part 136

    USEPA, 2001. Method 1631, Revision C: Mercury in Water by 
Oxidation, Purge and Trap, and Cold Vapor Atomic Fluorescence 
Spectrometry. March 2001. U.S. Environmental Protection Agency, 
Engineering and Analysis Division, Office of Science and Technology, 
Washington, DC. EPA-821/R-01/024.

IV. Public Availability of Materials

    The full text of Method 1631, Revision C incorporated by reference 
in today's rulemaking will be available to the general public from the 
following sources:
    Water Docket: Paper version of the method, along with the public 
record for this rule and the Method 1631 final rule, are available for 
review under docket number W-98-15 at the U.S. Environmental Protection 
Agency, Water Docket, 401 M Street SW., Washington, DC 20460. For 
access to these materials, call 202-260-3027 on Monday through Friday, 
excluding Federal holidays, between 9:00 a.m. and 3:30 p.m. Eastern 
Time for an appointment.
    Internet: This Federal Register rule also is available on the 
Internet at: http://www.epa.gov/fedrgstr. An electronic version of 
Method 1631, Revision C is available via the Internet at http://www.epa.gov/OST.
    National Technical Information Service (NTIS): Electronic or paper 
version of Method 1631, Revision C (NTIS Publication No. PB2001-102796) 
is available from the National Technical Information Service, 5285 Port 
Royal Road, Springfield, Virginia 22161, by phone at 1-703/487-4650, 
fax at 1-703/321-8547, or via the Internet at http://www.ntis.gov.

List of Subjects in 40 CFR Part 136

    Environmental protection, Analytical methods, Incorporation by 
reference, Reporting and recordkeeping requirements, Water pollution 
control.

    Dated: June 6, 2001.
Diane C. Regas,
Acting Assistant Administrator for Water.

    For the reasons set out in the preamble, title 40, chapter I of the 
Code of Federal Regulations, is amended as follows:

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

    1. The authority citation for Part 136 continues to read as 
follows:

    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 136.3 is amended as follows:
    a. Redesignate paragraph (b)(41) as paragraph (b)(42);
    b. Redesignate the second paragraph (b)(40) as new paragraph 
(b)(41) and revise it to read as follows:


Sec. 136.3  Identification of test procedures.

* * * * *
    (b) * * *
    (41) USEPA. 2001. Method 1631, Revision C, ``Mercury in Water by 
Oxidation, Purge and Trap, and Cold Vapor Atomic Fluorescence 
Spectrometry.'' March 2001. Office of Water, U.S. Environmental 
Protection Agency (EPA-821-R-01-024). Available from: National 
Technical Information Service, 5285 Port Royal Road, Springfield, 
Virginia 22161. Publication No. PB2001-102796. Cost: $25.50. Table IB, 
Note 43.
* * * * *
[FR Doc. 01-15145 Filed 6-15-01; 8:45 am]
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