[Federal Register Volume 72, Number 173 (Friday, September 7, 2007)]
[Proposed Rules]
[Pages 51394-51396]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-16852]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 60, 72 and 75

[EPA-HQ-OAR-2007-0164, FRL-8459-7]
RIN 2060-AO01


Two Optional Methods for Relative Accuracy Test Audits of Mercury 
Monitoring Systems Installed on Combustion Flue Gas Streams and Several 
Amendments to Related Mercury Monitoring Provisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing two optional methods for relative accuracy 
audits of mercury monitoring systems installed on combustion flue gas 
streams and several amendments to related mercury monitoring 
provisions. In specific, this action proposes two optional mercury (Hg) 
emissions test methods for potential use in conjunction with an 
existing regulatory requirement for Hg emissions monitoring specified 
in the Federal Register on May 18, 2005, as well as several revisions 
to the mercury monitoring provisions themselves. Since that Federal 
Register publication, EPA has received numerous comments concerning the 
desirability of EPA evaluating and allowing use of the measurement 
techniques addressed in the two optional methods in lieu of the methods 
identified in the cited Federal Register publication, as they can 
produce equally acceptable measures of the relative accuracy achieved 
by Hg monitoring systems. This action would allow use of these two 
optional methods entirely at the discretion of the owner or operator of 
an affected emission source in place of the two currently specified 
methods. This also proposes to amend Performance Specification 12A by 
adding Methods 30A and 30B to the list of reference methods acceptable 
for measuring Hg concentration and to amend the Hg monitoring 
provisions of May 18, 2005, to reflect technical insights since gained 
by EPA which will help to facilitate their implementation including 
clarification and increased regulatory flexibility for affected 
sources.

DATES: Written comments must be received by October 9, 2007.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2007-0164, by mail to ``Two Optional Methods for Relative Accuracy 
Test Audits of Mercury Monitoring Systems Installed on Combustion Flue 
Gas Streams and Several Amendments to the Related Mercury Monitoring 
Provisions, Environmental Protection Agency, Mailcode: 2822T, 1200 
Pennsylvania Avenue, NW., Washington, DC 20460.'' Please include a 
total of two copies. Comments may also be submitted electronically or 
through hand delivery/courier by following the detailed instructions in 
the ADDRESSES section of the direct final rule located in rules section 
of this Federal Register.

FOR FURTHER INFORMATION CONTACT: Either Mr. William Grimley, Office of 
Air Quality Planning and Standards, Air Quality Assessment Division, 
Measurement Technology Group (E143-02), EPA, Research Triangle Park, NC 
27711, telephone (919) 541-1065, facsimile number (919) 541-0516, e-
mail address: [email protected] or Ms. Robin Segall, Office of 
Air Quality Planning and Standards, Air Quality Assessment Division, 
Measurement Technology Group (E143-02), EPA, Research Triangle Park, NC 
27711, telephone (919) 541-0893, facsimile number (919) 541-0516, e-
mail address: [email protected].

SUPPLEMENTARY INFORMATION: 

I. Why Is EPA Issuing This Proposal?

    This document proposes to take action on ``Two Optional Methods for 
Relative Accuracy Test Audits of Mercury Monitoring Systems Installed 
on Combustion Flue Gas Streams and Several Amendments to Related 
Mercury Monitoring Provisions.'' We have published a direct final rule 
to approve two optional Hg emissions test methods and to amend the Hg 
monitoring provisions of May 18, 2005 for clarity and increased 
regulatory flexibility because we view this as a noncontroversial 
action and anticipate no adverse comment. We have explained our reasons 
for this action in the preamble to the direct final rule.
    If we receive no adverse comment, we will not take further action 
on this proposed rule. If we receive adverse comment, we will publish a 
timely withdrawal in the Federal Register indicating which provisions 
we are withdrawing and informing the public that those provisions will 
not take effect. The provisions that are not withdrawn will become 
effective on the date set out above, notwithstanding adverse comment on 
any other provision. We would address all public comments in a 
subsequent final rule based on the proposed rule.
    We do not intend to institute a second comment period on this 
action. Any parties interested in commenting must

[[Page 51395]]

do so at this time. For further information, please see the information 
provided in the ADDRESSES section of this document.

II. Does This Action Apply to Me?

    Regulated Entities. The regulated categories and entities affected 
by this proposed rule include:

------------------------------------------------------------------------
                                                  Examples of regulated
            Category                NAICS \a\            entities
------------------------------------------------------------------------
Industry.......................          221112  Fossil fuel-fired
                                                  electric utility steam
                                                  generating units.
Federal government.............      \b\ 221122  Fossil fuel-fired
                                                  electric utility steam
                                                  generating units owned
                                                  by the Federal
                                                  government.
State/local governments........      \b\ 221122  Fossil fuel-fired
                                                  electric utility steam
                                                  generating units owned
                                                  by municipalities.
Tribal governments.............          921150  Fossil fuel-fired
                                                  electric utility steam
                                                  generating units in
                                                  Indian country.
------------------------------------------------------------------------
\a\ North American Industry Classification System.
\b\ Federal, State, or local government-owned and operated
  establishments are classified according to the activity in which they
  are engaged.

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be affected by this 
direct final rule. If you have any questions regarding the 
applicability of this direct final rule to a particular entity, consult 
either the air permit authority for the entity or your EPA regional 
representative as listed in 40 CFR 63.13.

III. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and 
is therefore not subject to review under the EO.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
Burden means the total time, effort, or financial resources expended by 
persons to generate, maintain, retain, or disclose or provide 
information to or for a Federal agency. This includes the time needed 
to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information, unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small 
entities, small entity is defined as: (1) A small business whose parent 
company has fewer than 100 or 1,000 employees, or fewer than 4 billion 
kilowatt-hr per year of electricity usage, depending on the size 
definition for the affected North American Industry Classification 
System code; (2) a small governmental jurisdiction that is a government 
of a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This 
proposed rule will not impose any requirements on small entities 
because it does not impose any additional regulatory requirements, but 
rather provides clarification and additional regulatory flexibilty.

D. Unfunded Mandates Reform Act

    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 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.
    EPA has determined that this proposed rule 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 to the 
private sector in any 1 year, nor does this rule significantly or 
uniquely impact small governments, because it contains no requirements 
that impose new obligations upon them. Thus, this direct final rule is 
not subject to the

[[Page 51396]]

requirements of sections 202 and 205 of the UMRA.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA 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.''
    This proposed rule does not have federalism implications. It will 
not have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. The use of these methods is 
optional on the part of the regulated entities listed. Thus, Executive 
Order 13132 does not apply to this direct final rule.

F. 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 9, 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.'' This direct final rule does 
not have tribal implications, as specified in Executive Order 13175. 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. Thus, Executive Order 13175 does not 
apply to this proposed rule.

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

    Executive Order 13045: ``Protection of Children from Environmental 
health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies 
to any rule that: (1) Is determined to be ``economically significant'' 
as defined under Executive Order 12866, and (2) concerns an 
environmental health or safety risk that EPA has reason to believe may 
have 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.
    EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that are based on health or safety risks, such that 
the analysis required under section 5-501 of the Order has the 
potential to influence the regulation. This rule is not subject to 
Executive Order 13045 because it does not establish an environmental 
standard intended to mitigate health or safety risks.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    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.

I. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law No. 104-113, section 12(d) (15 U.S.C. 
272 note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards. This 
rulemaking involves technical standards. Consistent with the NTTAA, EPA 
in a previous related rulemaking (70 FR 28606, May 18, 2005) identified 
an acceptable VCS for measuring Hg emissions. The standard ASTM D6784-
02, Standard Test Method for Elemental, Oxidized, Particle-Bound and 
Total Mercury Gas Generated from Coal-Fired Stationary sources (Ontario 
Hydro Method) was cited in that final rule for measuring Hg emissions. 
After today's action becomes effective, the Ontario Hydro Method will 
remain an acceptable method for measuring Hg emissions.

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

    Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this direct final rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment. This direct final rule does not affect or relax the 
control measures on sources impacted by this rule and therefore will 
not cause emissions increases from these sources.

List of Subjects

 40 CFR Part 60

    Environmental protection, Administrative practice and procedures, 
Air pollution control, Continuous emission monitors, Electric 
utilities, Mercury, Test methods and procedures.

40 CFR Part 72

    Environmental protection, Administrative practice and procedures, 
Air pollution control, Continuous emission monitors, Electric 
utilities, Mercury, Test methods and procedures.

40 CFR Part 75

    Environmental protection, Administrative practice and procedures, 
Air pollution control, Continuous emission monitors, Electric 
utilities, Mercury, Test methods and procedures.

    Dated: August 17, 2007.
Stephen L. Johnson,
Administrator.
[FR Doc. E7-16852 Filed 9-6-07; 8:45 am]
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