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


AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; technical corrections.


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


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:[email protected]">Gomez-

[email protected]).


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


[[Page 32775]]

approved testing procedures or an approved alternate test procedure.

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

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

be affected by the standardization of testing procedures in this

rulemaking, because NPDES permits may incorporate the testing procedure

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

authorized Tribe provides certification of Federal licenses under Clean

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

use the standardized testing procedures. Categories and entities that

may ultimately be affected include:


                                      Examples of potentially regulated

              Category                             entities


Regional, State and Territorial      States, Territories, and Tribes

Governments and Tribes.              authorized to administer the NPDES

                                      permitting program; States,

                                      Territories, and Tribes providing

                                      certification under Clean Water

                                      Act section 401; Governmental

                                      NPDES permittees.

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

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

                                      NPDES permits.


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

guide for readers regarding entities likely to be affected by this

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

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

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

regarding the applicability of this action to a particular entity,

consult the person listed in the preceding FOR FURTHER INFORMATION

CONTACT section.

Administrative Procedure Act

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

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

notice and public procedure are impracticable, unnecessary or contrary

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

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

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

proposal and opportunity for comment because today's rule merely

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

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

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

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

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

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

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

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

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

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

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

notice and public procedure are unnecessary. EPA finds that this

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

I. EPA Method 1631, Revision B

    EPA promulgates analytical methods for pollutants under Clean Water

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

more than one analytical method for measurement of particular

pollutants, and laboratories may use any approved test method for

determining compliance with applicable requirements. From time to time,

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

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

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

public comment and reviews any public comments received prior to making

a final decision on approval.

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

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

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

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

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

litigation over the final rule in Alliance of Automobile Manufacturers,

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

    Under the Settlement Agreement, the Agency agreed to revise

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

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

blanks (section 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


    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 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 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=""> An

electronic version of

Method 1631, Revision C is available via the Internet at


    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


List of Subjects in 40 CFR Part 136

    Environmental protection, Analytical methods, Incorporation by

reference, Reporting and recordkeeping requirements, Water pollution


    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:



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


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

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

Pollution Control Act Amendments of 1972 as amended by the Clean

Water Act of 1977.)


    2. Section 136.3 is amended as follows:

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

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

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


Sec. 136.3  Identification of test procedures.

* * * * *

    (b) * * *

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

Oxidation, Purge and Trap, and Cold Vapor Atomic Fluorescence

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

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

Technical Information Service, 5285 Port Royal Road, Springfield,

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

Note 43.

* * * * *

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




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