[Federal Register Volume 66, Number 166 (Monday, August 27, 2001)]
[Proposed Rules]
[Pages 44997-45000]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-21441]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 60

[FRL-7039-3]


Amendments for Testing and Monitoring Provisions; Removal of a 
Provision for Opacity Monitoring

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: We, the EPA, are proposing to remove an amendment published as 
part of a final rule entitled ``Amendments for Testing and Monitoring 
Provisions'' on October 17, 2000 (65 FR 61744). We are proposing to 
remove this provision because it inadvertently established substantive 
new requirements for facilities that are subject to the New Source 
Performance Standards requiring the installation of continuous opacity 
monitors on effluent streams, although the amendments were explicitly 
intended to be minor in nature and not substantive. We do not consider 
this amendment controversial and expect no adverse comments, so we are 
also publishing it as a direct final rule without prior proposal in the 
Final Rules section of this Federal Register Publication. We have set 
forth a detailed rationale for this proposal in the direct final rule. 
We will take no further action unless, within the time allowed (see 
DATES), we receive adverse comments about the proposal or direct final 
rule, or we receive a request for a public hearing on the proposal. If 
we receive no adverse comments, we contemplate no further action on 
this proposal. We will not institute a second comment period on this 
action. People interested in commenting on the direct final rule should 
do so at this time.

DATES: Comments. We will accept comments regarding the proposed 
amendment on or before September 26, 2001. We will arrange a public 
hearing concerning the accompanying proposed rule if we receive a 
request for one by September 11, 2001. If someone requests a hearing it 
will be held on October 11, 2001 beginning at 10 a.m. For more 
information about submittal of comments and requesting a public 
hearing, see the SUPPLEMENTARY INFORMATION section in this preamble.

ADDRESSES: Comments. Interested parties having comments on this action 
may submit these comments in writing (original and two copies, if 
possible) to Docket No. A-97-12 at the following address: Air and 
Radiation Docket and Information Center (6102), U.S. Environmental 
Protection Agency, 401 M Street, SW., Room 1500, Washington, DC 20460.
    We request that a separate copy of the comments also be sent to the 
contact person listed in the following paragraph of this preamble. If 
someone requests a hearing, the hearing will be held at the EPA Office 
of Administration Auditorium, Research Triangle Park, NC.

FOR FURTHER INFORMATION CONTACT: Foston Curtis, Environmental 
Protection Agency, Office Air Quality Planning and Standards, at 919/
541-1063, e-mail: [email protected], facsimile 919/541-1039.

SUPPLEMENTARY INFORMATION:
    Docket: A docket containing supporting information used in 
developing this proposed rule amendment is available for public 
inspection and copying at our docket office located at the above 
address in Room M-1500, Waterside Mall (ground floor). You are 
encouraged to phone in advance to review docket materials or schedule 
an appointment by phoning the Air Docket Office at (202) 260-7548. 
Refer to Docket No. A-97-12. The Docket Office may charge a reasonable 
fee for copying docket materials.
    Outline: The information in this preamble is organized as follows:

I. Background
II. Authority
III. Administrative Requirements
    A. Executive Order 12866: ``Significant Regulatory Action 
Determination''

[[Page 44998]]

    B. Regulatory Flexibility
    C. Paperwork Reduction Act
    D. Unfunded Mandates Reform Act
    E. Docket
    F. Executive Order 13132: Federalism
    G. Executive Order 13045: Protection of Children from 
Environmental Health Risks and Safety Risks
    H. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
    I. National Technology Transfer and Advancement Act
    J. Executive Order 13211 (Energy Effects)

I. Background

    On October 17, 2000 (65 FR 61744), we published a notice of final 
rulemaking to adopt a number of changes to the test methods listed in 
40 CFR parts 60, 61, and 63. As the preamble to the final rule 
explained, these changes were largely intended to be minor, 
nonsubstantive revisions and represented, in effect, a ``housekeeping'' 
effort to correct typographical and technical errors, and eliminate 
obsolete or no longer applicable material. In addition, we promulgated 
Performance Specification 15, which contains criteria for certifying 
continuous emission monitoring systems (CEMS) that use fourier 
transform infrared spectroscopy, and we changed the outline of the test 
methods and CEMS performance specifications already listed in parts 60, 
61, and 63 to fit a new format recommended by the Environmental 
Monitoring Management Council. The editorial changes and technical 
corrections were intended to update the rules and help maintain their 
original intent.
    The amendment made to Sec. 60.13(g) which is affected by today's 
action applies to facilities that are subject to New Source Performance 
Standards (NSPS) and are required to install continuous opacity 
monitors on effluent streams. Specifically, the amendment provides that 
when the effluents from two or more affected facilities subject to the 
same opacity standard are combined into a single stack, and if opacity 
is monitored on each stream, a combiner system comprised of opacity and 
flow monitoring systems must be installed. In this case, gas flow rates 
from the individual streams must be known to correct the measured 
opacity to the exit stack dimensions and therefore must be measured. By 
contrast, preamended Sec. 60.13(g) only implied, but did not explicitly 
require, that flow measurements from the individual streams were 
necessary. The intent of the amendment was to explicitly require such 
flow measurements and to identify what we perceived to be the most 
commonly used method of doing that (namely, the use of flow monitors). 
However, during the public comment period, some members of the utility 
industry objected to our specifying flow monitors as the only option 
and suggested that other indicators of flow rate they had traditionally 
employed (e.g., unit load, fan motor ampere readings, damper settings, 
etc.) should continue to be allowed. Because we did not anticipate the 
industry having to make substantive changes from its current practices 
to implement the amendments, we promulgated the amended Sec. 60.13(g) 
without fully responding to the industry's comments in the preamble to 
the final rule. After further consideration, we have concluded that the 
amendment constitutes a substantive change in the original rule since 
it requires applicable subject facilities to install flow monitors 
instead of allowing them to continue to use flow indicator methods. 
Moreover, we did not raise the question of adequacy of such methods in 
the previous rulemaking and no commenter has presented information 
indicating that they do not provide adequate measurements of flow rates 
for the purposes of the NSPS monitoring requirements. This removal of 
the amendment will reinstate the old Sec. 60.13(g) provision which 
allowed subject facilities to use flow measuring techniques besides 
flow monitors.

II. Authority

    The statutory authority for this action is 42 U.S.C. 7401, 7411, 
7413, 7414, 7416, 7601, and 7602.

III. Administrative Requirements

A. Executive Order 12866: ``Significant Regulatory Action 
Determination''

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), we must 
determine whether the regulatory action is ``significant'' and 
therefore subject to Office of Management and Budget (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 in 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 entitlement, grants, 
user fees, or loan programs of 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.
    Because this rule merely proposes to remove an amendment to, and 
reinstate the prior provisions of 40 CFR 60.13(g), we have determined 
that this action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 and is therefore not subject to OMB 
review. Executive Order 12866 also encourages agencies to provide a 
meaningful public comment period, and suggests that in most cases the 
comment period should be 60 days. However, in consideration of the very 
limited and remedial scope of this amendment, we consider 30 days to be 
sufficient in providing a meaningful public comment period, if 
requested, for this rulemaking.

B. Regulatory Flexibility

    The Regulatory Flexibility Act (RFA) requires us to conduct a 
regulatory flexibility analysis of any rule subject to notice and 
comment rulemaking requirements unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small not-for-profit enterprises, and small governmental jurisdictions. 
We have determined that removing the 40 CFR 60.13(g) amendment will not 
have a significant impact on a substantial number of small entities. 
Therefore, a regulatory flexibility analysis is not necessary in 
connection with this action.

C. Paperwork Reduction Act

    Because this action does not include or create any information 
collection activities subject to the Paperwork Reduction Act, the 
Paperwork Reduction Act, 44 U.S.C. 3501, et seq., does not apply.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 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, we 
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 we promulgate a rule for which a written statement is

[[Page 44999]]

needed, section 205 of the UMRA requires us 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 us 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 we establish any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, we must have developed under 
section 203 of the UMRA a small government agency plan. That 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 regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    This action contains no regulatory requirements that might 
significantly or uniquely affect small governments. This action does 
not contain a Federal mandate that may result in expenditures of $100 
million or more for State, local, and tribal governments, in the 
aggregate, or the private sector in any one year. Thus, today's action 
is not subject to the requirements of sections 202 and 205 of the UMRA.

E. Docket

    The docket includes an organized and complete file of all the 
information upon which we relied in taking this direct final action. 
The docketing system is intended to allow you to identify and locate 
documents readily so that you can participate effectively in the 
rulemaking process. Along with the proposed and promulgated standards 
and their preambles, the contents of the docket, except for certain 
interagency documents, will serve as the record for judicial review. 
(See CAA section 307(d)(7)(A).)

F. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires us to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    Under Section 6 of Executive Order 13132, we may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or we consult 
with State and local officials early in the process of developing the 
proposed regulation. We also may not issue a regulation that has 
federalism implications and that preempts State law, unless we consult 
with State and local officials early in the process of developing the 
proposed regulation.
    This action does not have federalism implications. The rule will 
not have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. Today's action does not create a 
mandate on State, local or tribal governments. This action does not 
impose any new or additional enforceable duties on these entities. 
Thus, the requirements of section 6 of the Executive Order do not apply 
to this rule.

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

    Executive Order 13045 applies to any rule that the EPA determines 
(1) is economically significant as defined under Executive Order 12866, 
and (2) that the environmental health or safety risk addressed by the 
rule has a disproportionate effect on children. If the regulatory 
action meets both criteria, the Agency must evaluate the environmental 
health or safety effects of the planned rule on children and explain 
why the planned regulation is preferable to other potentially effective 
and reasonably feasible alternatives considered by the Agency. This 
removal action is not subject to Executive Order 13045, entitled 
Protection of Children from Environmental Health Risks and Safety Risks 
(62 FR 19885, April 23, 1997), because it is not an economically 
significant regulatory action as defined by Executive Order 12866, and 
the action does not address an environmental health or safety risk that 
would have a disproportionate effect on children.

H. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.''
    This rule does not have tribal implications. It will not have 
substantial direct effects on tribal governments, on the relationship 
between the Federal government and Indian tribes, or on the 
distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175. 
Thus, Executive Order 13175 does not apply to this rule.

I. National Technology Transfer and Advancement Act

    Under section 12(d) of the National Technology Transfer and 
Advancement Act (NTTAA), Public Law 104-113 (March 7, 1996), we are 
required to use voluntary consensus standards in our regulatory and 
procurement activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, business practices, etc.) which are adopted by 
voluntary consensus standard bodies. Where we do not use available and 
potentially applicable voluntary consensus standards, the NTTAA 
requires us to provide Congress, through OMB, an explanation of the 
reasons for not using such standards. This action does not involve 
technical standards. The purpose of today's action is to remove 
portions of a rule, reinstating previous provisions, and not to impose 
new substantive requirements or to adopt new technical standards. 
Consequently, the requirements of NTTAA do not apply.

[[Page 45000]]

J. Executive Order 13211 (Energy Effects)

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it is not a 
significant regulatory action under Executive Order 12866.

List of Subjects in 40 CFR Part 60

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Continuous emission monitors.

    Dated: August 14, 2001.
Christine Todd Whitman,
Administrator.
[FR Doc. 01-21441 Filed 8-24-01; 8:45 am]
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