[Federal Register Volume 75, Number 120 (Wednesday, June 23, 2010)]
[Proposed Rules]
[Pages 35712-35720]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-15254]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 122 and 136

[EPA-HQ-OW-2009-1019; FRL-9166-7]
RIN 2040-AC84


National Pollutant Discharge Elimination System (NPDES): Use of 
Sufficiently Sensitive Test Methods for Permit Applications and 
Reporting

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing minor 
amendments to its Clean Water Act (CWA) regulations to codify that 
under the National Pollutant Discharge Elimination System (NPDES) 
program, only ``sufficiently sensitive'' analytical test methods can be 
used when completing an NPDES permit application and when performing 
sampling and analysis pursuant to monitoring requirements in an NPDES 
permit.
    This proposal is based on requirements in the CWA and existing EPA 
regulations. It also would codify existing EPA guidance on the use of 
``sufficiently sensitive'' analytical methods with respect to 
measurement of mercury and extend the approach outlined in that 
guidance to the NPDES program more generally. Specifically, EPA is 
proposing to clarify the existing NPDES application, compliance 
monitoring, and analytical methods regulations. The amendments in this 
proposed rulemaking affect only chemical-specific methods; they do not 
apply to the Whole Effluent Toxicity (WET) methods or their use.

DATES: Comments on this action must be received or postmarked on or 
before midnight August 9, 2010.

ADDRESSES: You may submit comments, identified by EPA-HQ-OW-2009-1019, 
by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     E-mail: [email protected]. Include EPA-HQ-OW-2009-1019 in 
the subject line of the message.
     Mail: Send the original and three copies of your comments 
to: Water Docket, Environmental Protection Agency, Mail Code 2822T, 
1200 Pennsylvania Avenue, NW., Washington, DC 20460, Attention: Docket 
ID No. EPA-HQ-OW-2009-1019.
     Hand Delivery/Courier: Deliver your comments to EPA Docket 
Center,

[[Page 35713]]

EPA West, Room 3334, 1301 Constitution Avenue, NW., Washington, DC, 
Attention Docket ID No. EPA-HQ-OW-2009-1019. Such deliveries are 
accepted only during the Docket's normal hours of operation, which are 
8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal 
holidays. Special arrangements should be made for deliveries of boxed 
information. The telephone number for the Water Docket is 202-566-2426.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OW-2009-
1019. EPA's policy is that all comments received will be included in 
the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identify or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
might not be able to consider your comment. Avoid the use of special 
characters and any form of encryption, and ensure that electronic files 
are free of any defects or viruses. For additional information about 
EPA's public docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Some information, however, is not publicly 
available, e.g., CBI or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is publicly available only in hard copy. Publicly available 
docket materials are available electronically in http://www.regulations.gov or in hard copy at the Water Docket, EPA Docket 
Center, EPA West, Room 3334, 1301 Constitution Avenue, NW., Washington, 
DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday 
through Friday, excluding legal holidays. The telephone number for the 
Public Reading Room is 202-566-1744, and the telephone number for the 
Water Docket is 202-566-2426.

FOR FURTHER INFORMATION CONTACT: For additional information, contact 
Kathryn Kelley, Water Permits Division, Office of Wastewater Management 
(4203M), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460; telephone number: 202-564-7004, e-mail address: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. General Information
    A. Potentially Affected Parties
    B. Legal Authority
II. Background
III. Scope and Rationale of the Proposed Rule
IV. Impacts
V. Compliance Dates
VI. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations

I. General Information

A. Potentially Affected Parties

    In the NPDES program, point source dischargers obtain permits that 
are issued by EPA regions and authorized NPDES States, Territories, and 
Indian Tribes (collectively referred to as ``permitting authorities''). 
These point source dischargers include publicly owned treatment works 
(POTWs) and various industrial and commercial facilities (collectively 
referred to as ``NPDES applicants or permittees''). Permitting 
authorities issue NPDES permits after analyzing the information 
contained in the application or in the case of a general permit, the 
information submitted to demonstrate eligibility for coverage. The 
NPDES permit prescribes the conditions under which the facility is 
allowed to discharge pollutants and that will ensure the facilities' 
compliance with the CWA's technology-based and water quality-based 
requirements. NPDES permits typically include restrictions on the mass 
and/or concentration of pollutants \1\ that a permittee may discharge 
and require the permittee to conduct routine sampling and reporting of 
various parameters measured in the permitted discharge. In general, 
NPDES applicants and permittees are required to use EPA-approved, 
pollutant-specific test procedures (or approved alternative test 
procedures) when measuring the pollutants in their discharges.
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    \1\ Where the term ``pollutant'' is used, it refers to both 
pollutants and pollutant parameters.
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    The purpose of today's proposal is to clarify that NPDES applicants 
and permittees must use sufficiently sensitive analytical methods when 
quantifying the presence of pollutants in a discharge, and the Director 
\2\ must require and accept only such data. The broad universe of 
entities`` \3\ that would be affected by this proposal includes NPDES 
permitting authorities and municipal and industrial applicants and 
permittees (Table I-1). The impact of this proposal, however, would 
only affect those entities that use or allow the use of any EPA-
approved analytical methods (for one or more parameters) that are not 
``sufficiently sensitive'' to detect pollutants being measured in the 
discharge.
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    \2\ The term ``Director'' refers to the permitting authority. 
Per 40 CFR 122.2, ``Director'' means the Regional Administrator or 
the State Director, as the context requires, or an authorized 
representative. When there is no ``approved State program''' and 
there is an EPA-administered program, ``Director'' means the 
Regional Administrator. When there is an approved State program, 
``Director'' normally means the State Director. In some 
circumstances, however, EPA retains the authority to take certain 
actions even when there is an approved State program. (For example, 
when EPA has issued an NPDES permit prior to the approval of a State 
program, EPA may retain jurisdiction over that permit after program 
approval; see 40 CFR 123.1.) In such cases, the term ``Director'' 
means the Regional Administrator and not the State Director.
    \3\ Although terms such as ``authorities,'' ``applicants,'' and 
``permittees'' imply individuals, EPA uses these terms to refer to 
entities. For example, EPA uses the term ``NPDES permitting 
authorities'' to mean the EPA Regions, States, Territories, and 
Indian Tribes granted authority to implement and manage the NPDES 
program. EPA uses the term ``NPDES applicants'' or ``NPDES 
permittees'' to mean facilities that have applied for, sought 
coverage under, or been issued an NPDES individual or general 
permit.

[[Page 35714]]



                             Table I-1--Entities Potentially Regulated by This Rule
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             Category                                Examples of potentially affected entities
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State, Territorial, and Indian     States, Territories, and Indian Tribes authorized to administer the NPDES
 Tribal Governments.                permitting program; States, Territories, and Indian Tribes that provide
                                    certification under section 401 of the CWA.
Municipalities...................  POTWs required to apply for or seek coverage under an NPDES individual or
                                    general permit and to perform routine monitoring as a condition of any
                                    issued NPDES permit.
Industry.........................  Facilities required to apply for or seek coverage under an NPDES individual
                                    or general permit and to perform routine monitoring as a condition of any
                                    issued NPDES permit.
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    If you have any questions regarding the applicability of this 
action to a particular entity, consult the person listed under FOR 
FURTHER INFORMATION CONTACT.

B. Legal Authority

    EPA would promulgate the rule being proposed today pursuant to the 
authority of sections 301, 304(h), 308, 402(a), and 501(a) of the CWA 
[33 U.S.C. 1311, 1314(h), 1316, 1318, 1342(a), 1343, and 1361(a)]. 
Section 501(a) of the CWA authorizes the Administrator of EPA to 
prescribe such regulations as are necessary to carry out the act. 
Section 301(a) of the CWA prohibits the discharge of any pollutant into 
navigable waters unless the discharge complies with an NPDES permit 
issued under section 402 of the act. Section 402(a) of the CWA 
authorizes the Administrator to issue permits that require a discharger 
to meet all the applicable requirements under sections 301, 302, 306, 
307, 308, and 403. Section 301(b) of the CWA further requires that 
NPDES permits include effluent limitations that implement technology-
based standards of performance and, where necessary, water quality-
based effluent limitations (WQBELs) that are as stringent as necessary 
to meet water quality standards. With respect to the protection of 
water quality, NPDES permits must include limitations to control all 
pollutants that the NPDES permitting authority determines are or might 
be discharged at a level that ``will cause, have the `reasonable 
potential' to cause, or contribute to an excursion above any State 
water quality standard,'' including both narrative and numeric criteria 
[40 CFR 122.44(d)(1)(i)]. If the Director determines that a discharge 
causes, or has the reasonable potential to cause or contribute to, such 
an excursion, the permit must contain WQBELs for the pollutant [40 CFR 
122.44(d)(1)(iii)]. Section 402(a)(2) of the CWA requires EPA to 
prescribe permit conditions to ensure compliance with requirements, ``* 
* * including conditions on data and information collection, reporting 
and such other requirements as [the Administrator] deems appropriate.'' 
Thus, a prospective permittee might need to measure various pollutants 
in its effluent at two stages: First, at the permit application stage 
so that the Director can determine what pollutants are present in the 
applicant's discharge and the amount of each pollutant present and, 
second, to quantify the levels of each pollutant limited in the permit 
to determine whether the discharge is in compliance with the applicable 
limits and conditions.
    Section 304(h) of the CWA requires the Administrator of EPA to ``* 
* * promulgate guidelines establishing test procedures for the analysis 
of pollutants that shall include the factors which must be provided in 
any certification pursuant to [section 401of this Act] or permit 
application pursuant to [section 402 of this Act].'' Section 501(a) of 
the act authorizes the Administrator to ``* * * prescribe such 
regulations as are necessary to carry out this function under [the 
act].'' EPA generally has codified its test procedure regulations 
(including analysis and sampling requirements) for CWA programs at 40 
CFR 136, although some requirements are codified in other parts (e.g., 
40 CFR chapter I, subchapters N and O).
    The Director is authorized under 40 CFR 122.21(e) to determine when 
an NPDES permit application is complete. Moreover, the Director shall 
not begin processing a permit until the applicant has fully complied 
with the application requirements for that permit [40 CFR 124.3(a)(2)]. 
Under 40 CFR 122.21(g)(13), applicants are required to provide to the 
Director, upon request, such other information as the Director may 
reasonably require to assess the discharge. Under 40 CFR 122.28(b)(2), 
dischargers (or treatment works treating domestic sewage) seeking 
coverage under a general permit must submit to the Director a written 
NOI to be covered by the general permit (with some exceptions set forth 
elsewhere in 40 CFR 122.28(b)(2)). The contents of the NOI must be 
specified in the general permit, and they must require the submission 
of information necessary for adequate program implementation. Finally, 
40 CFR 122.41(j)(1) requires NPDES permits to specify that sampling and 
measurements taken for the purposes of monitoring shall be 
``representative of the monitored activity.''
    Among other things, section 308 of the CWA authorizes EPA to 
require owners or operators of point sources to establish records, 
conduct monitoring activities, and make reports to enable the 
permitting authority to determine whether there is a violation of any 
prohibition or any requirement established under provisions including 
section 402 of the CWA. Under sections 308(c) and 402(b)(2)(A), a 
State's authorized NPDES program must have authorities for inspection, 
monitoring, and issuing permits that are applicable to at least the 
same extent as those under section 308.
    As summarized above, the legal requirements and authorities exist 
for EPA to require NPDES applicants and permittees to use sufficiently 
sensitive analytical methods when quantifying the presence of 
pollutants in a discharge and to require the Director to require and 
accept only such data.

II. Background

    Multiple analytical test methods exist for many pollutants 
regulated under the CWA. Therefore, EPA has generally approved multiple 
methods for CWA pollutants under 40 CFR 136 and 40 CFR chapter I, 
subchapters N and O. Some of the approved analytical test methods have 
greater sensitivities and lower minimum levels \4\ \5\ or method

[[Page 35715]]

detection limits (MDLs) \6\ than other approved methods for the same 
pollutant. This situation often occurs because of advances having been 
made in instrumentation and in the analytical protocols themselves. 
Many metals and toxic compounds (for example, mercury) have an array of 
EPA-approved methods, including some methods that have greater 
sensitivities and lower minimum levels than the others.
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    \4\ The term ``minimum level'' refers to either the lowest 
calibration point in a method or a multiple of the method detection 
limit (MDL), whichever is higher. Minimum levels may be obtained in 
several ways: They may be published in a method; they may be the 
lowest acceptable calibration point used by a laboratory; or they 
may be calculated by multiplying the MDL in a method, or the MDL 
determined by a lab, by a factor. [See: (A) 40 CFR 136, appendix A, 
footnotes to table 2 of EPA Method 1624 and table 3 of EPA Method 
1625 (49 FR 43234, October 26, 1984); (B) 40 CFR 136, section 17.12 
of EPA Method 1631E (67 FR 65876-65888, October 29, 2002); (C) 61 FR 
21, January 31, 1996; (D) ``Analytical Method Guidance for the 
Pharmaceutical Manufacturing Point Source Category,'' EPA 821-B-99-
003, August 1999; and (E) ``EPA Region 10 Guidance For WQBELs Below 
Analytical Detection/Quantitation Level,'' EPA Region 10, March 22, 
1996.]
    \5\ For the purposes of this rulemaking, EPA is considering the 
following terms to be synonymous: ``quantitation limit,'' 
``reporting limit,'' and ``minimum level.''
    \6\ The MDL is determined using the procedure at 40 CFR 136, 
appendix B. It is defined as the minimum concentration of a 
substance that can be measured and reported with 99 percent 
confidence that the analyte concentration is greater than zero and 
is determined from analysis of a sample in a given matrix containing 
the analyte.
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    EPA and State permitting authorities use data from the permit 
application to determine whether pollutants are present in an 
applicant's discharge and to quantify the levels of all detected 
pollutants. These pollutant data are then used to determine whether 
technology- or water quality-based effluent limits are needed in the 
facility's NPDES permit. It is critical, therefore, that applicants 
provide data that have been measured with precision and accuracy so 
that they will be meaningful to the decision-making process. Among 
other things, data must be provided at a level that will enable the 
Director to make a sound, reasonable potential determination and, if 
necessary, establish appropriate water quality-based permit limits. The 
same holds true for monitoring and reporting relative to permit limits 
established for regulated parameters. The aim is for applicants and 
permittees to use analytical methods that are capable of detecting and 
measuring the pollutants at, or below, the respective water quality 
criteria or permit limits.\7\
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    \7\ To address this situation some State permitting authorities 
have developed a list of monitored parameters and prescribed a 
required minimum level that must be achieved for each parameter as a 
part of their State regulations or policy.
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    For example, in 2002 and 2007 EPA published two new analytical 
methods for mercury that were several orders of magnitude more 
sensitive than previously available methods. In addition, a number of 
States have set water quality criteria for mercury that are below the 
detection levels of the older methods for mercury that EPA approved 
prior to 2002. Unlike the previous methods, the new methods are capable 
of measuring whether effluent samples are above or below the current 
water quality criteria. In 2007 EPA addressed this issue with respect 
to mercury in a memorandum titled ``Analytical Methods for Mercury in 
NPDES Permits,'' from James A. Hanlon, Director of EPA's Office of 
Wastewater Management, to the Regional Water Division Directors. This 
memorandum is available at http://www.epa.gov/npdes/pubs/mercurymemo_analyticalmethods.pdf. The memorandum explains EPA's expectation that 
``All facilities with the potential to discharge mercury will provide 
with their NPDES permit applications monitoring data for mercury using 
Method 1631E or another sufficiently sensitive EPA-approved method. * * 
* Accordingly, EPA strongly recommends that the permitting authority 
determine that a permit application that lacks effluent data analyzed 
with a sufficiently sensitive EPA-approved method such as Method 1631E, 
is incomplete unless and until the facility supplements the original 
application with data analyzed with such a method.''
    Following issuance of the 2007 memorandum, EPA determined that the 
NPDES permit application regulations at 40 CFR 122.21 and the NPDES 
permit monitoring requirements at 40 CFR 122.44 should be clarified to 
ensure that applicants and permittees use sufficiently sensitive 
analytical methods for all pollutants, not just mercury. EPA is 
proposing to incorporate language in the regulations that extends the 
requirement to use sufficiently sensitive test methods to all 
pollutants. EPA is also proposing to codify the definition of 
``sufficiently sensitive'' to include an additional criterion that was 
not part of the 2007 memorandum, as described below.

III. Scope and Rationale of the Proposed Rule

    This proposed rule clarifies that NPDES applicants and permittees 
must use sufficiently sensitive analytical test methods when submitting 
information characterizing the discharge in an NPDES permit application 
and when performing sampling and analysis pursuant to monitoring 
requirements in an NPDES permit. In addition, the proposed rule 
clarifies that the Director must require NPDES applicants and 
permittees to use sufficiently sensitive analytical test methods and 
accept only data analyzed by such methods. EPA proposes adding or 
modifying language to define ``sufficiently sensitive'' at 40 CFR 
122.21(e)(3) and 122.44(i)(1)(iv). EPA also proposes providing a cross-
reference to these changes at 40 CFR 136.1(c). For the purposes of this 
rulemaking, if monitoring requirements are included as a condition of 
the general permit, these requirements would be subject to the 
provisions established in 122.44(i)(1)(iv).
    As discussed earlier, it is critical that the Director make 
permitting decisions based on accurate data and, thus, sound science. 
The use of imprecise analytical methods could lead the Director to make 
assumptions regarding the presence or absence of a pollutant in an 
applicant's discharge. These assumptions, in turn, could result in the 
Director's making an incorrect permitting decision (e.g., the decision 
not to include a limit in a permit when, in fact, a waste stream 
concentration of a pollutant will cause, have the reasonable potential 
to cause, or contribute to an excursion above an applicable water 
quality criterion). Moreover, if the Director were to include imprecise 
analytical methods in permits for compliance monitoring purposes, the 
use of such methods could result in undetected exceedances of permit 
limits.
    Although EPA has approved multiple analytical methods for 
individual pollutants under 40 CFR 136, the Agency has historically 
expected that applicants and permittees would select from the array of 
available methods a specific analytical method that is sufficiently 
sensitive to quantify the presence of a pollutant in a given discharge. 
EPA has not expected that NPDES permit applicants would select a method 
with insufficient sensitivity, thereby masking the presence of a 
pollutant in their discharge, when an EPA-approved sufficiently 
sensitive method is available. This proposed rule, therefore, would 
clarify that NPDES applicants and permittees must use sufficiently 
sensitive analytical methods when quantifying the presence of 
pollutants in a discharge and that the Director must require and accept 
only such data.
    EPA proposes defining the term ``sufficiently sensitive'' in two 
sections of the Federal NPDES regulations--at 40 CFR 122.21(e) (Permit 
Application Completeness) as a new subsection (3) and at 40 CFR 
122.44(i)(1)(iv) (Monitoring Requirements). EPA also proposes modifying 
40 CFR 136.1 (Applicability) by adding a new

[[Page 35716]]

subsection (c), which is simply a cross-reference to the changes 
proposed for 40 CFR 122.21(e)(3) and 40 CFR 122.44(i)(1)(iv). The 
regulatory changes proposed are open to comment. EPA, however, is not 
reopening or taking comment on any other existing requirement in the 
regulations.

    A. The new and revised sections indicate that a method is 
sufficiently sensitive where:
    i. The method minimum level is at or below the level of the 
applicable water quality criterion or permit limitation for the 
measured pollutant or pollutant parameter; or
    ii. The method minimum level is above the applicable water 
quality criterion or permit limitation, but the amount of the 
pollutant or pollutant parameter in a facility's discharge is high 
enough that the method detects and quantifies the level of the 
pollutant or pollutant parameter in the discharge; or
    iii. The method has the lowest minimum level of the analytical 
methods approved under 40 CFR 136.
    B. When no analytical method is approved under 40 CFR 136, 
required under subchapter N or O, or otherwise required by the 
Director, an NPDES applicant may use any suitable sufficiently 
sensitive method; however, the applicant shall provide a description 
of the method, including documentation of the minimum level.\8\
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    \8\ This provision is adopted from existing language in 40 CFR 
122.21(g)(7).

    The first two criteria in the sufficiently sensitive definition are 
aimed at addressing situations in which EPA has approved multiple 
methods under 40 CFR 136 for a pollutant and some of those approved 
methods have greater sensitivities and lower minimum levels than 
others.
    The third criterion of the definition is included to address 
situations in which none of the approved 40 CFR 136 methods for a 
pollutant are sufficiently sensitive to achieve the minimum levels 
necessary to assess reasonable potential with a water quality criterion 
or to monitor compliance with a permit limit. In these situations, EPA 
proposes that applicants or permittees use the ``most sensitive'' of 
the approved methods for the pollutant. This practice has long been the 
Agency's policy, and it is consistent with the CWA and with the EPA 
regulations at 40 CFR 122.44(d) requiring that limits be protective of 
water quality standards.\9\ EPA acknowledges that a laboratory might 
achieve MDLs and minimum levels lower than those published when the 
promulgated method was developed.\10\ Thus, the Director should not 
rely solely on MDLs or minimum levels in published methods because they 
give only an upper, not a lower, bound on the lab's MDL and minimum 
level. Flexibility is provided at 40 CFR 136.6, which allows a 
laboratory to demonstrate performance better than the MDL or minimum 
level published in a method.
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    \9\ EPA's Office of Water issued Final Guidance on Section 
304(1), ``Listing and Permitting of Pulp and Paper Mills'' (referred 
to as the 304(l) Guidance, March 15, 1989, available at http://www.epa.gov/npdes/pubs/owm0360.pdf). The guidance recommended that 
where WQBELs are less than the detection level for the specified 
analytical method, the calculated WQBEL should be included as a 
requirement of the permit. EPA again addressed the issue of 
detection levels in its May 21, 1990, ``Strategy for the Regulation 
of Discharges of PCDDs and PCDFs from Pulp and Paper Mills to Waters 
of the United States'' (the Dioxin Strategy, available at http://www.epa.gov/npdes/pubs/owm0286.pdf). This strategy modified the 
304(l) Guidance by recommending that permit writers specify the 
minimum level in permits that limit dioxin. In March 1991, EPA 
further expanded its guidance on detection levels in the ``Technical 
Support Document for Water Quality-based Toxics Control'' by 
applying the concepts contained in the Dioxin Strategy to analytical 
detection levels for all pollutants (EPA Office of Water, EPA/505/2-
90-001, PB91-127415; available at http://www.epa.gov/waterscience/methods/det/faca/mtg20051208/excerpt-detectionlimits.html).
    \10\ See Content Notes 4-6.
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    The final provision is intended to address situations where no 
approved analytical method exists under part 136, is required under 
subchapter N or O, or is otherwise required by the Director. In such 
situations, an applicant may use any suitable sufficiently sensitive 
method but shall provide a description of the method that includes 
documentation of the minimum level. Where an EPA-approved analytical 
method is nonexistent under part 136 or is not required under 
subchapter N or O for a pollutant limited in an NPDES permit, the 
Director must specify a sufficiently sensitive analytical method as a 
condition of the NPDES permit, consistent with the criteria established 
in this proposed rulemaking at 40 CFR 122.44(i)(1)(iv)(A)-(B).
    Under the CWA, authorized NPDES States, Territories, and Indian 
Tribes must have in place legal authorities that are at least as 
stringent as the requirements in certain parts of the EPA regulations. 
See 40 CFR 123.25. The requirements of sections 122.21(e) and 
122.44(i), which are the subject of this proposal, are among those that 
States must include within their own programs. Therefore, once the 
revised regulations that EPA is proposing today are finalized, States 
will need to amend their own legal authorities, where necessary, to 
ensure that only sufficiently sensitive methods are used to produce 
data for permit applications and for monitoring under a permit. See 40 
CFR 123.62(e).
    In some cases, States currently have State statutes or regulations 
that require NPDES applicants to use a specific analytical method or 
achieve a specific minimum level for a particular pollutant (or they 
have a State policy or guidance that recommends a specific method or 
minimum level). A problem would arise if the State currently requires a 
particular method or minimum level that is not ``sufficiently 
sensitive'' as defined in new EPA regulations. In these situations, EPA 
would expect States to revise their statutes or regulations so that if 
they require the use of a particular method or minimum level, it is one 
that is sufficiently sensitive. States would need to revise any policy 
guidances as well. (No problem would arise, however, if the method or 
minimum level currently required by the State does qualify as 
``sufficiently sensitive.'') EPA will provide regular updates on its 
Web site at http://www.epa.gov/waterscience/methods to keep permitting 
authorities and permittees informed of method updates and revised water 
quality criteria to better enable the permitting authorities to 
determine that their requirements for applicants and permittees remain 
sufficiently sensitive.
    The following example is provided to help clarify the importance of 
using sufficiently sensitive test methods in the NPDES program:

Example III-1--Mercury

    Measurements included with an NPDES permit application and with 
reports required to be submitted under the NPDES permit must generally 
be made using analytical methods approved by EPA under 40 CFR 136. (See 
40 CFR 136.1, 136.4, 136.5, 122.21(g)(7), and 122.41(j).) EPA has four 
approved methods for mercury under 40 CFR 136--EPA Methods 245.1, 
245.2, 1631E, and 245.7. The first two methods, approved by EPA in 
1974, can achieve measurement of mercury down to 200 parts per trillion 
(ppt). EPA approved Method 1631 Revision E in 2002. Method 1631E has a 
minimum level of 0.5 ppt, making it 400 times more sensitive than EPA 
Methods 245.1 and 245.2. In fact, the sensitivity of Methods 245.1 and 
245.2 when last updated in 1994 and 1979, respectively, was well above 
the water quality criteria now adopted in most States, as well as the 
criteria included by EPA in its final ``Water Quality Guidance for the 
Great Lakes System'' for the protection of aquatic life and human 
health, which generally fall in the range of 1 to 50 ppt.\11\ In 
contrast, Method 1631E, with

[[Page 35717]]

a minimum level of 0.5 ppt, supports the measurement of mercury at 
these low levels.
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    \11\ Many States have adopted mercury water quality criteria of 
12 parts per trillion (ppt) for the protection of aquatic life and 
50 ppt for the protection of human health; for discharges to the 
Great Lakes Basin, the applicable water quality criteria for mercury 
are 1.3 ppt for the protection of wildlife and 1.8 ppt for the 
protection of human health. In 2001, EPA issued new recommended 
water quality criteria guidance for the protection of human health. 
This new guidance recommends adoption of a methylmercury water 
quality criterion of 0.3 milligrams of methylmercury per kilogram 
(mg/kg) in fish tissue. EPA published final guidance in April 2010 
to assist States in implementing the methylmercury criterion 
(``Guidance for Implementing the January 2001 Methylmercury Water 
Quality Criterion,'' EPA-823-F-10-001). It is available at http://www.epa.gov/waterscience/criteria/methylmercury/mercury.2010.pdf).
---------------------------------------------------------------------------

    On March 12, 2007, EPA published the Methods Update Rule, or MUR 
(72 FR 11200), under which the Agency approved Method 245.7 for mercury 
and also modified versions of other EPA-approved methods for the 
parameter. This method change applies to the implementation of both 
water column criteria and fish tissue criteria in permits. Method 245.7 
has a minimum level of 5.0 ppt, making it 40 times more sensitive than 
Methods 245.1 and 245.2. Methods 245.1 and 245.2 may be modified to 
achieve lower minimum levels.\12\ Modifications to an EPA-approved 
method for mercury that meet the method performance requirements of 40 
CFR 136.6 are considered to be approved methods and require no further 
EPA approval. (See 72 FR 11239-40, March 12, 2007.) For analytical 
method modifications that do not fall within the flexibility of 40 CFR 
136.6, the modified methods may be approved under the alternate test 
procedure program, as defined at 40 CFR 136.4 and 136.5.
---------------------------------------------------------------------------

    \12\ Examples of such modification may include changes in the 
sample preparation digestion procedures such as the use of reagents 
similar in properties to ones used in the approved method, changes 
in the equipment operating parameters such as the use of an 
alternate more sensitive wavelength, adjusting the sample volume to 
optimize method performance, and changes in the calibration ranges 
(provided that the modified range covers any relevant regulatory 
limit).
---------------------------------------------------------------------------

    As noted, most States have adopted water quality criteria for the 
protection of aquatic life and human health that fall in the range of 1 
to 50 ppt. If an applicant or permittee used Methods 245.1 and 245.2, 
``the absence of a quantitative result'' would show only that mercury 
levels are below 200 ppt (based on a minimum level of 200 ppt) but 
would not establish that the discharge is at or below the applicable 
water quality criterion. In such a circumstance, a permit writer would 
possibly lack the information needed to make a reasonable potential 
determination. Use of an insufficiently sensitive method when 
performing routine monitoring under an NPDES permit could also yield 
data that would not be adequate for the Director to assess compliance. 
In contrast, if the applicant used Method 1631E (or 245.7), which can 
detect and quantify mercury concentrations at or below the low water 
quality criteria levels, the permit writer would have adequate 
information to make a reasonable potential determination. Therefore, 
EPA proposes to clarify in the regulations that the Director must 
consider an NPDES permit application incomplete until the applicant 
submits analytical data using a sufficiently sensitive method as that 
term is defined in this rulemaking, and when specifying in a permit 
which analytical methods the permittee may use, the Director may only 
specify sufficiently sensitive methods.

IV. Impacts

    Entities that discharge to waters of the United States vary in 
terms of the quantity of their discharges, the potential constituents 
contained in their discharges, and their operation and maintenance 
practices. Consequently, the Director's NPDES application requirements 
vary depending on applicant type. For example, Form 2A for 
municipalities requires minimal screening for POTWs with design flows 
under 100,000 gallons per day; however, for POTWs with design flows 
above 1 million gallons per day (MGD), multiple priority pollutant 
scans are required. Similarly, existing industrial and commercial 
facilities that complete Form 2C are required to test for toxic 
pollutants based on the nature of their manufacturing operation. To 
assist permitting authorities (EPA regions, States, and Tribes), EPA 
developed several NPDES permit application forms. Table IV-1 provides a 
list of these forms and the discharger type(s) for which they are 
intended. Permitting authorities may use EPA's forms or comparable 
forms of their own.

                        Table IV-1--EPA NPDES Permit Application Forms by Applicant Type
----------------------------------------------------------------------------------------------------------------
                   Form or request                                    Applicant type
----------------------------------------------------------------------------------------------------------------
1...........  Form 1...................  New and existing applicants, except POTWs and treatment works treating
                                          domestic sewage.
2...........  Form 2A..................  New and existing POTWs (i.e., municipal facilities).
3...........  Form 2B..................  New and existing concentrated animal feeding operations (CAFOs) and
                                          aquatic animal production facilities.
4...........  Form 2C..................  Existing industries discharging process wastewater.
5...........  Form 2D..................  New industries discharging process wastewater.
6...........  Form 2E..................  New and existing industries discharging non-process wastewater only.
7...........  Form 2F..................  New and existing industries discharging stormwater.
8...........  40 CFR 122.21(r) and       New and existing industries with cooling water intake structures.
               122.22(d).
9...........  Form 2S..................  New and existing POTWs and other treatment works treating domestic
                                          sewage (covers sludge).
----------------------------------------------------------------------------------------------------------------

    As noted earlier, permitting authorities issue and develop effluent 
limitations for individual NPDES permits after analyzing the data 
contained in each permittee's application. The NPDES permit prescribes 
the conditions under which the facility is allowed to discharge to 
ensure the facility's compliance with the CWA's technology-based and 
water quality-based requirements. NPDES permits typically include 
restrictions on the quantity of pollutants that a permittee may 
discharge and require the permittee to conduct routine measurements of, 
and report on, a number of parameters using EPA-approved, pollutant-
specific test

[[Page 35718]]

procedures (or approved alternative test procedures).
    In 2008 EPA submitted an Information Collection Request (ICR) to 
the Office of Management and Budget (OMB) that, in part, updated the 
Agency's burden estimates for applicants to complete Forms 1, 2A, 2C-
2F, and 2S and for permitting authorities to review and process such 
forms.\13\ The renewal ICR did not include updated estimates for Form 
2B or for forms associated with cooling water intake structures (Item 8 
in Table IV-1). Updated estimates to complete those forms were 
contained in separate ICRs.\14\ The existing ICRs include annual burden 
estimates for completing NPDES permit applications and for conducting 
ongoing compliance monitoring for both new and existing NPDES 
permittees. EPA's expectation is that permit applicants and permittees 
will use a range of methods based on a need to appropriately quantify 
pollutants in their discharge. To calculate cost and burden, the ICRs 
use an average cost for analytical methods, which is then translated 
into burden hours.
---------------------------------------------------------------------------

    \13\ USEPA. ``Information Collection Request (ICR) for National 
Pollutant Discharge Elimination System (NPDES) Program (Renewal),'' 
OMB Control No. 2040-0004, EPA ICR No. 0229.19, December 2008.
    \14\ USEPA. ``Supporting Statement for the Information 
Collection Request for the NPDES Regulation and Effluent Limitation 
Guidelines and Standards for Concentrated Animal Feeding 
Operations,'' OMB Control No. 2040-0250, EPA ICR No. 1989.04, June 
2006.
    USEPA, ``Information Collection Request (ICR) for Cooling Water 
Intake Structures at Phase III Facilities (Final Rule),'' OMB 
Control No. 2040-0268, EPA ICR No. 2169.02, February 2009.
    USEPA, ``Information Collection Request (ICR) for Cooling Water 
Intake Structures Phase II Existing Facilities (Renewal),'' OMB 
Control No. 2040-0257, EPA ICR No. 2060.03, May 2007.
    USEPA, ``Information Collection Request (ICR) for Cooling Water 
Intake Structures New Facility Rule (Renewal),'' OMB Control No. 
2040-0241, EPA ICR No. 1973.04, June 2008.
---------------------------------------------------------------------------

    To assess the impact of this proposed rule, EPA also assessed the 
cost information for 40 CFR 136 methods found in the National 
Environmental Methods Index (NEMI) at http://www.nemi.gov. The NEMI 
site describes the ``relative cost'' as the cost per procedure of a 
typical analytical measurement using the specified methods (i.e., the 
cost of analyzing a single sample). Additional considerations affect 
total project costs (e.g., labor and equipment/supplies for a typical 
sample preparation, quality assurance/quality control requirements to 
validate results reported, number of samples being analyzed). EPA's 
review of the cost ranges provided in NEMI indicated that there was 
generally little difference in the cost ranges across the EPA-approved 
analytical methods for a particular pollutant. A table with the NEMI 
cost ranges is included in the record. We request comment on this 
assessment of the cost range for the various EPA-approved methods. 
While we acknowledge that there are cost differentials for some 
facilities based on case-specific situations, on the basis of the 
analytical cost ranges provided in NEMI, and the assumptions used in 
the current ICRs (i.e., that applicants and permittees will use a range 
of available approved methods), the proposed rule is expected to result 
in little or no new or increased burden to applicants or permittees. We 
request comment on the burden estimate resulting from this proposal.
    The existing ICRs also account for the ongoing burden to permitting 
authorities to review applications and to issue NPDES permits annually. 
They also account for the ongoing burden associated with reviewing 
discharge monitoring and other reports for compliance assessment 
purposes. Finally, the existing ICRs account for program revisions 
where they are necessary because the controlling Federal statutes or 
regulations were modified.

V. Compliance Dates

    Following issuance of this rule, authorized States have up to one 
year to revise, as necessary, their NPDES regulations to adopt the 
requirements of this rule, or two years if statutory changes are 
needed, as provided at 40 CFR 123.62.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    This rule is not a ``significant regulatory action'' under the 
terms of Executive Order 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 any new information collection burden. 
This proposed rulemaking merely clarifies testing procedures under the 
NPDES program based on existing legal requirements and authorities. The 
proposed rulemaking requires the use of sufficiently sensitive 
analytical test methods when applying for an NPDES permit and when 
performing sampling and analysis pursuant to monitoring requirements in 
an NPDES permit. However, the Office of Management and Budget (OMB) has 
previously approved the information collection requirements contained 
in the existing regulations (which cover all potential NPDES 
applicants) under the provisions of the Paperwork Reduction Act, 44 
U.S.C. 3501 et seq. and has assigned OMB control numbers, as summarized 
in section IV (Impacts) of this preamble. 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 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 this proposed rule on 
small entities, ``small entity'' is defined as (1) a small business 
based on the Small Business Administration regulations at 13 CFR 
121.201; (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; or (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 this proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. Because EPA 
is simply clarifying, based on existing legal requirements and 
authorities, that sufficiently sensitive analytical test methods must 
be used when applying for an NPDES permit and when performing sampling 
and analysis pursuant to monitoring requirements in an NPDES permit, 
this proposed action will not impose any new legally binding 
requirements or burden on EPA, States, or the regulated community, and 
specifically, any burden on any small entity. EPA continues to be 
interested in the potential impacts of the proposed rule on small 
entities and welcomes comments on issues related to such impacts.

D. Unfunded Mandates Reform Act

    This proposed rule does not contain a Federal mandate that might 
result in expenditures of $100 million or more for State, local, and 
Tribal governments,

[[Page 35719]]

in the aggregate, or the private sector in any one year. EPA is 
proposing to clarify under existing legal requirements and authorities 
that sufficiently sensitive analytical test methods may be used when 
applying for an NPDES permit and when performing sampling and analysis 
pursuant to monitoring requirements in an NPDES permit. The rulemaking 
will not impose any new legally binding requirements on EPA, States, or 
the regulated community. Thus, this proposed rule is not subject to the 
requirements of sections 202 and 205 of the UMRA. For the same reason, 
EPA has determined that this rule contains no regulatory requirements 
that might significantly or uniquely affect small governments. Thus, 
this proposed rule is not subject to the requirements of section 203 of 
UMRA.

E. Executive Order 13132: Federalism

    This proposed rule does not have federalism implications. If 
promulgated, 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 (64 FR 
43255, August 10, 1999). This proposed rule does not change the 
relationship between the national government and the States or change 
their roles and responsibilities. Rather, this proposed rulemaking 
would confirm Agency policy, which is based on existing legal 
requirements and authorities, that sufficiently sensitive analytical 
test methods must be used when applying for an NPDES permit and when 
performing sampling and analysis pursuant to monitoring requirements in 
an NPDES permit. EPA does not expect this proposed rule to have any 
impact on local governments.
    Furthermore, the revised regulations would not alter the basic 
State-Federal scheme established in the CWA, under which EPA authorizes 
States to carry out the NPDES permitting program. EPA expects the 
revised regulations to have little effect on the relationship between, 
or the distribution of power and responsibilities among, the Federal 
and State governments. In the spirit of Executive Order 13132, and 
consistent with EPA policy to promote communications between EPA and 
State and local governments, EPA specifically solicits comment on this 
proposed action from State and local officials.

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

    This proposed rule does not have Tribal implications, as specified 
in Executive Order 13175, ``Consultation and Coordination with Indian 
Tribal Governments'' (65 FR 67249, November 9, 2000). 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. 
The proposed rule, which is based on existing legal requirements and 
authorities, clarifies that sufficiently sensitive analytical test 
methods must be used when applying for an NPDES permit and when 
performing sampling and analysis pursuant to monitoring requirements in 
an NPDES permit. Nothing in this proposed rule would prevent an Indian 
Tribe from exercising its own organic authority to deal with such 
matters. EPA specifically solicits additional comment on this proposed 
action from Tribal officials.

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

    The proposed rule is not subject to Executive Order 13045, 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not economically 
significant and the Agency does not believe that the environmental 
health and safety risks addressed by this action present a 
disproportionate risk to children. This proposed rule only interprets 
existing legal requirements and authorities and clarifies Agency policy 
that sufficiently sensitive analytical test methods must be used when 
applying for an NPDES permit and when performing sampling and analysis 
pursuant to monitoring requirements in an NPDES permit.

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

    This rulemaking 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 and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act (NTTAA) of 1995 (Pub. L. 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 standard bodies. The NTTAA directs EPA 
to provide explanations to Congress, through OMB, when the Agency 
decides not to use available and applicable voluntary consensus 
standards. This proposed rulemaking does not involve technical 
standards. The proposed rulemaking does, however, clarify Agency policy 
based on existing regulations and authorities that sufficiently 
sensitive analytical test methods must be used when applying for an 
NPDES permit and when performing sampling and analysis pursuant to 
monitoring requirements in an NPDES permit.

J. Executive Order 12898 (Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations)

    Executive Order (EO) 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 proposed 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. As explained above, the Agency does not have reason to 
believe that the rule addresses environmental health and safety risks 
that present a disproportionate risk to minority populations and low-
income populations. This proposed rule only interprets existing legal 
requirements and authorities and clarifies Agency policy as stated 
above.

[[Page 35720]]

List of Subjects

40 CFR Part 122

    Administrative practice and procedure, Confidential business 
information, Environmental protection, Hazardous substances, Reporting 
and recordkeeping requirements, Water pollution control.

40 CFR Part 136

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

    Dated: June 16, 2010.
Lisa P. Jackson,
Administrator.

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

PART 122--EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT 
DISCHARGE ELIMINATION SYSTEM

    1. The authority citation for part 122 continues to read as 
follows:

    Authority: The Clean Water Act, 33 U.S.C. 1251 et seq.

    2. Section 122.21, is amended by adding a new paragraph (e)(3), to 
read as follows:


Sec.  122.21  Application for a permit (applicable to State programs, 
see Sec.  123.25).

* * * * *
    (e) * * *
    (3) A permit application shall not be considered complete unless 
all required quantitative data are collected in accordance with 
sufficiently sensitive analytical methods approved under 40 CFR part 
136 or in accordance with another method required under 40 CFR chapter 
I, subchapter N or O.
    (i) For the purposes of this requirement, a method approved under 
40 CFR part 136 is ``sufficiently sensitive'' when:
    (A) The method minimum level (ML) is at or below the level of the 
applicable water quality criterion for the measured pollutant or 
pollutant parameter;
    (B) The method ML is above the applicable water quality criterion, 
but the amount of the pollutant or pollutant parameter in a facility's 
discharge is high enough that the method detects and quantifies the 
level of the pollutant or pollutant parameter in the discharge;
    (C) The method has the lowest ML of the analytical methods approved 
under 40 CFR part 136.
    (ii) When there is no analytical method that has been approved 
under 40 CFR part 136, required under 40 CFR chapter I, subchapter N or 
O, or otherwise required by the Director, the applicant may use any 
suitable, sufficiently sensitive method but shall provide a description 
of the method that includes documentation of the ML.
* * * * *
    3. Section 122.44 is amended by revising paragraph (i)(1)(iv) to 
read as follows:


Sec.  122.44  Establishing limitations, standards, and other permit 
conditions (applicable to State NPDES programs, see Sec.  123.25).

* * * * *
    (i) * * *
    (1) * * *
    (iv) According to sufficiently sensitive test procedures (i.e., 
methods) approved under 40 CFR part 136 for the analysis of pollutants 
or pollutant parameters or in accordance with another method required 
under 40 CFR chapter I, subchapter N or O.
    (A) For the purposes of this paragraph, a method is ``sufficiently 
sensitive'' when:
    (1) The method minimum level (ML) is at or below the level of the 
effluent limit established in the permit;
    (2) The method ML is above the level of the effluent limit in the 
permit, but the amount of the pollutant or pollutant parameter in a 
facility's discharge is high enough that the method detects and 
quantifies the amount of the pollutant or pollutant parameter in the 
discharge;
    (3) The method has the lowest ML of the analytical methods approved 
under 40 CFR part 136.
    (B) In the case of pollutants or pollutant parameters for which 
there are no approved methods under 40 CFR part 136 or methods are not 
otherwise required under 40 CFR chapter I, subchapter N or O, 
monitoring shall be conducted according to a sufficiently sensitive 
test procedure specified in the permit for such pollutants or pollutant 
parameters.
* * * * *

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

    4. 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.)

    5. Section 136.1 is amended by adding a new paragraph (c) to read 
as follows:


Sec.  136.1  Applicability.

* * * * *
    (c) For the purposes of the NPDES, when more than one test 
procedure is available under this part for the analysis of a pollutant 
or pollutant parameter, the test procedure selected shall be 
sufficiently sensitive as defined at 40 CFR 122.21(e)(3) and 
122.44(i)(1)(iv).

[FR Doc. 2010-15254 Filed 6-22-10; 8:45 am]
BILLING CODE 6560-50-P