Guidelines Establishing Test Procedures for the Measurement of Mercury in Water

June 20, 2001

Final Rule, Technical Corrections

Guidelines Establishing Test Procedures for the Measurement of


Mercury in Water (EPA Method 1631, Revision C); Final Rule, Technical


Corrections

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; technical corrections.

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SUMMARY: EPA is amending the `Guidelines Establishing Test Procedures


for the Analysis of Pollutants' to make minor technical corrections to


clarify the use of field blanks for mercury testing under the Clean


Water Act. Specifically, the amendments rectify an omission in the text


of the promulgated version of Method 1631: Mercury in Water by


Oxidation, Purge and Trap and Cold Vapor Atomic Fluorescence


Spectrometry.

DATES: These technical corrections are effective July 18, 2001. The


incorporation by reference of the publication listed in today's rule is


approved by the Director of the Federal Register as of July 18, 2001.


For judicial review purposes, this rule is promulgated as of 1:00 p.m.


(Eastern time) on July 2, 2001, as provided in 40 CFR 23.2.

FOR FURTHER INFORMATION CONTACT: For information regarding this rule


contact Dr. Maria Gomez-Taylor, Engineering and Analysis Division


(4303), USEPA Office of Science and Technology, Ariel Rios Bldg., 1200


Pennsylvania Ave., NW., Washington, DC 20460 (e-mail:

HREF="mailto:Gomez-Taylor.Maria@epa.gov">Gomez-


Taylor.Maria@epa.gov).

SUPPLEMENTARY INFORMATION:

Potentially Regulated Entities

    EPA Regions, as well as States, Territories and Tribes authorized


to implement the National Pollutant Discharge Elimination System


(NPDES) program, issue permits that comply with the technology-based


and water quality-based requirements of the Clean Water Act. In doing


so, the NPDES permitting authority, including authorized States,


Territories, and Tribes, make a number of discretionary choices


associated with permit writing, including the selection of pollutants


to be measured and, in many cases, limited in permits. If EPA has


``approved'' standardized testing procedures (i.e., promulgated through


rulemaking) for a given pollutant, the NPDES permit must include one of


the

[[Page 32775]]

approved testing procedures or an approved alternate test procedure.


Regulatory entities may, at their discretion, require use of this


method in their permits. Therefore, entities with NPDES permits could


be affected by the standardization of testing procedures in this


rulemaking, because NPDES permits may incorporate the testing procedure


in today's rulemaking. In addition, when a State, Territory, or


authorized Tribe provides certification of Federal licenses under Clean


Water Act section 401, States, Territories and Tribes are directed to


use the standardized testing procedures. Categories and entities that


may ultimately be affected include:

------------------------------------------------------------------------


                                      Examples of potentially regulated


              Category                             entities


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Regional, State and Territorial      States, Territories, and Tribes


Governments and Tribes.              authorized to administer the NPDES


                                      permitting program; States,


                                      Territories, and Tribes providing


                                      certification under Clean Water


                                      Act section 401; Governmental


                                      NPDES permittees.


Industry...........................  Industrial NPDES permittees.


Municipalities.....................  Publicly-owned treatment works with


                                      NPDES permits.


------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a


guide for readers regarding entities likely to be affected by this


action. This table lists the types of entities that EPA is now aware


could potentially be affected by this action. Other types of entities


not listed in the table could also be affected. If you have questions


regarding the applicability of this action to a particular entity,


consult the person listed in the preceding FOR FURTHER INFORMATION


CONTACT section.

Administrative Procedure Act

    Section 553 of the Administrative Procedure Act, 5 U.S.C.


553(b)(B), provides that, when an agency for good cause finds that


notice and public procedure are impracticable, unnecessary or contrary


to the public interest, the agency may issue a rule without providing


notice and an opportunity for public comment. EPA has determined that


there is good cause for making today's rule final without prior


proposal and opportunity for comment because today's rule merely


corrects the text of a promulgated test method to reflect the Agency's


intentions at the time it originally published the rule. Omissions to


EPA Method 1631, Revision B, were brought to the Agency's attention by


the members of the public after the test method was promulgated. The


revisions to the test method clarify the use and reporting of field


blanks, and are consistent with the discussion in the preamble to the


final rule. In addition, this rule corrects a typographical error at 40


CFR Part 136.3(b). The CFR contains two references with the same number


[(b)(40)]. The second reference (40) in Section 136.3(b) has been


renumbered (41) and reference (41) has been renumbered (42). The


revisions to the test method and the CFR are not substantive. Thus,


notice and public procedure are unnecessary. EPA finds that this


constitutes good cause under 5 U.S.C. 553(b)(B).

I. EPA Method 1631, Revision B

    EPA promulgates analytical methods for pollutants under Clean Water


Act programs at 40 CFR Part 136. In most cases, EPA has approved use of


more than one analytical method for measurement of particular


pollutants, and laboratories may use any approved test method for


determining compliance with applicable requirements. From time to time,


EPA amends 40 CFR Part 136 to approve new test methods or modifications


to approved test methods. For new test methods or for substantive


changes to approved test methods, EPA first publishes a notice for


public comment and reviews any public comments received prior to making


a final decision on approval.


    EPA proposed Method 1631: Mercury in Water by Oxidation, Purge and


Trap, and Cold Vapor Atomic Fluorescence Spectrometry on May 26, 1998


(63 FR 28867), and then, after revisions following public comment, EPA


promulgated Method 1631, Revision B on June 8, 1999 (64 FR 30417). On


October 19, 2000, EPA entered into a Settlement Agreement to resolve


litigation over the final rule in Alliance of Automobile Manufacturers,


et al. v. EPA, No. 99-1420 (D.C. Cir.).


    Under the Settlement Agreement, the Agency agreed to revise


sections 12.4.2 and 9.4.3.3 of the test method to clarify the use of


field blank subtraction (section 12.4.2) and the use of multiple field


blanks (section 9.3.3.3) to determine whether test samples should be


used for compliance monitoring purposes. At the time EPA published the


challenged rulemaking, the Agency had intended to incorporate these


changes into the rule, as reflected by the preamble and the comment-


response document in the public record. The version of Method 1631


promulgated today now incorporates these technical corrections. No


other changes are being made to the text of the referenced test


protocol.


    EPA will take actions to implement other provisions of the


Settlement Agreement separately. For example, EPA agreed to propose


additional clean techniques and quality control requirements for EPA


Method 1631 in a Federal Register notice that is scheduled for


signature by September 15, 2001. Today's action only addresses the use


and reporting of field blank results.


    Today's rule contains only minor technical corrections to EPA


Method 1631, Revision B and provides a revised version reflecting these


technical corrections. As required by the Office of the Federal


Register, EPA submitted a revised version of the test method to the


Director of the Federal Register for approval for incorporation by


reference. The revised version submitted to the Director is EPA Method


1631, Revision C. In today's rule, the full reference to the test


method in 40 CFR 136.3(b)(40) is being amended to reflect the updated


test method (i.e., Revision C).


    By today's action, EPA has revised the following sections of EPA


Method 1631:


    A. Section 9.4.3.3: This text is revised to clarify that, if


sufficient multiple field blanks (a minimum of three) are collected,


and the average concentration (of the multiple field blanks) plus two


standard deviations is equal to or greater than the regulatory


compliance limit or equal to or greater than one-half of the level in


the associated test sample, results for associated test samples may be


the result of contamination and may not be reported or otherwise used


for regulatory compliance purposes.


    B. Section 12.4.2: This text has been revised to clarify that


results for mercury in samples, reagent blanks and field blanks must be


reported separately. In addition, if blank correction is requested or


required by a regulatory authority or in a permit, the concentration of


mercury in the reagent blank or the field blank is subtracted from the


concentration of mercury in

[[Page 32776]]

the sample to obtain the net sample mercury concentration.


    Based on the preamble text for the June 8, 1999, final rule and the


response to comments document that supports the final rule, it is


apparent that the Agency intended to allow for field blank subtraction


and for not using test sample results for regulatory compliance if


multiple field blanks do not meet the specifications at 9.4.3.3. This


correction does not add any new requirements to the regulated


community. To the contrary, it provides additional flexibility by


allowing the use of field blank subtraction and by not requiring the


reporting of test samples that may be contaminated based on results


from field blank analyses. The rest of EPA Method 1631 is unchanged


from the previously promulgated EPA Method 1631, Revision B.

II. Administrative Requirements

    This technical correction action does not involve technical


standards; thus, the requirements of section 12(d) of the National


Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do


not apply. This rule does not impose an information collection burden


under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C.


3501 et seq.). EPA's compliance with these statutes and Executive


Orders or their predecessors for the underlying rule is discussed in


the June 8, 1999 Federal Register notice (64 FR 30417).


    The Congressional Review Act (5 U.S.C. 801 et seq.), as added by


the Small Business Regulatory Enforcement Fairness Act of 1996,


generally provides that before a rule may take effect, the agency


promulgating the rule must submit a rule report, which includes a copy


of the rule, to each House of the Congress and to the Comptroller


General of the United States. Section 808 allows the issuing agency to


make a rule effective sooner than otherwise provided by the CRA if the


agency makes a good cause finding that notice and public procedure is


impracticable, unnecessary or contrary to public interest. This


determination must be supported by a brief statement. 5 U.S.C. 808(2).


As stated previously, EPA has made such a good cause finding, including


the reasons therefor, and established an effective date of July 18,


2001. EPA will submit a report containing this rule and other required


information to the U.S. Senate, the U.S. House of Representatives, and


the Comptroller General of the United States prior to publication of


the rule in the Federal Register. This action is not a ``major rule''


as defined by 5 U.S.C. 804(2).

III. Materials Incorporated by Reference Into 40 CFR Part 136

    USEPA, 2001. Method 1631, Revision C: Mercury in Water by


Oxidation, Purge and Trap, and Cold Vapor Atomic Fluorescence


Spectrometry. March 2001. U.S. Environmental Protection Agency,


Engineering and Analysis Division, Office of Science and Technology,


Washington, DC. EPA-821/R-01/024.

IV. Public Availability of Materials

    The full text of Method 1631, Revision C incorporated by reference


in today's rulemaking will be available to the general public from the


following sources:


    Water Docket: Paper version of the method, along with the public


record for this rule and the Method 1631 final rule, are available for


review under docket number W-98-15 at the U.S. Environmental Protection


Agency, Water Docket, 401 M Street SW., Washington, DC 20460. For


access to these materials, call 202-260-3027 on Monday through Friday,


excluding Federal holidays, between 9:00 a.m. and 3:30 p.m. Eastern


Time for an appointment.


    Internet: This Federal Register rule also is available on the


Internet at:

HREF="http://www.epa.gov/fedrgstr">http://www.epa.gov/fedrgstr. An


electronic version of


Method 1631, Revision C is available via the Internet at

HREF="http://www.epa.gov/OST">http://


www.epa.gov/OST.


    National Technical Information Service (NTIS): Electronic or paper


version of Method 1631, Revision C (NTIS Publication No. PB2001-102796)


is available from the National Technical Information Service, 5285 Port


Royal Road, Springfield, Virginia 22161, by phone at 1-703/487-4650,


fax at 1-703/321-8547, or via the Internet at

HREF="http://www.ntis.gov">http://www.ntis.gov.

List of Subjects in 40 CFR Part 136

    Environmental protection, Analytical methods, Incorporation by


reference, Reporting and recordkeeping requirements, Water pollution


control.

    Dated: June 6, 2001.


Diane C. Regas,


Acting Assistant Administrator for Water.

    For the reasons set out in the preamble, title 40, chapter I of the


Code of Federal Regulations, is amended as follows:

PART 136--GUIDELINES ESTABLISHING TEST PROCEDURES FOR THE ANALYSIS


OF POLLUTANTS

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


follows:

    Authority: Secs. 301, 304(h), 307, and 501(a) Pub. L. 95-217, 91


Stat. 1566, et seq. (33 U.S.C. 1251, et seq.) (The Federal Water


Pollution Control Act Amendments of 1972 as amended by the Clean


Water Act of 1977.)

 


    2. Section 136.3 is amended as follows:


    a. Redesignate paragraph (b)(41) as paragraph (b)(42);


    b. Redesignate the second paragraph (b)(40) as new paragraph


(b)(41) and revise it to read as follows:

 


Sec. 136.3  Identification of test procedures.

* * * * *


    (b) * * *


    (41) USEPA. 2001. Method 1631, Revision C, ``Mercury in Water by


Oxidation, Purge and Trap, and Cold Vapor Atomic Fluorescence


Spectrometry.'' March 2001. Office of Water, U.S. Environmental


Protection Agency (EPA-821-R-01-024). Available from: National


Technical Information Service, 5285 Port Royal Road, Springfield,


Virginia 22161. Publication No. PB2001-102796. Cost: $25.50. Table IB,


Note 43.


* * * * *


[FR Doc. 01-15145 Filed 6-15-01; 8:45 am]


BILLING CODE 6560-50-U

Source:

EPA

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