[Federal Register Volume 62, Number 108 (Thursday, June 5, 1997)]
[Rules and Regulations]
[Pages 30761-30763]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-14720]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 136
[FRL-5835-9]
Guidelines Establishing Test Procedures for the Analysis of
Pollutants; Application for Approval of Alternate Test Procedures
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule; change in address.
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SUMMARY: By this action, the Environmental Protection Agency (EPA)
announces an internal transfer of administrative responsibilities for
the evaluation of alternate test procedures under Clean Water Act
section 304(h). EPA has transferred responsibilities from the
Environmental Monitoring Systems Laboratory in Cincinnati (EMSL-Ci),
now called the National Exposure Research Laboratory (NERL), in the
Office of Research and Development (ORD) to the Office of Science and
Technology in the Office of Water (OW). This action officially
announces the change in internal delegation of responsibility for
administering the alternate test procedure (ATP) program (from the
EMSL-Ci laboratory to the Headquarters office in Washington, D.C.) and
revises the address in those sections of title 40 of the Code of
Federal Regulations (CFR) which describe the process for submission of
ATP applications to the Agency.
DATES: Effective on June 5, 1997.
ADDRESSES: Applications for alternate test procedures should be sent to
the Director, Analytical Methods Staff, Office of Science and
Technology (4303), Office of Water, U.S. Environmental Protection
Agency, 401 M Street, SW., Washington, DC 20460.
FOR FURTHER INFORMATION CONTACT: Ben J. Honaker, Analytical Methods
Staff, Office of Science and Technology (4303), USEPA, 401 M Street,
SW., Washington, DC 20460; phone: (202) 260-2272.
SUPPLEMENTARY INFORMATION:
Regulated Entities
Entities potentially regulated by this action are those who seek
EPA approval of analytical technologies for monitoring under the
provisions of the Clean Water Act (CWA) and the Safe Drinking Water Act
(SDWA). Entities potentially regulated by this action are listed in the
table below. These entities potentially include consensus methods
organizations that publish compendia of analytical methods for water,
and equipment manufacturers, instrument manufacturers and laboratories
that modify compliance methods or seek approval of new methods for
compliance monitoring.
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Category Examples of regulated entities
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Public................................. Government laboratories that
develop analytical methods for
compliance with the CWA and
the SDWA.
Private................................ Commercial laboratories,
consensus methods
organizations, instrument
manufacturers, vendors, and
other entities that develop or
publish analytical methods for
compliance with the CWA and
the SDWA.
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table lists the types of entities that EPA is now aware
could potentially be regulated by this action. Other types of entities
not listed in the table could also be regulated. To determine whether
your organization is regulated by this action, you should carefully
examine the applicability criteria in section 136.1 of title 40 of the
Code of Federal Regulations. 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.
I. Authority
The Clean Water Act requires the EPA Administrator to promulgate
effluent limitations guidelines for specified categories and classes of
point sources. Section 301 of the CWA prohibits the discharge of any
pollutant into navigable waters unless the discharge complies with the
National Pollutant Discharge Elimination System (NPDES) permit issued
under section 402 of the CWA. Section 307 requires the EPA
Administrator to publish regulations establishing pretreatment
standards for introduction of pollutants into publicly owned treatment
works (POTWs). Section 401 requires certification for the construction
or operation of facilities which may result in any discharge into
navigable waters.
Section 304(h) of the Clean Water Act requires the EPA
Administrator to promulgate guidelines establishing test procedures for
the analysis of pollutants. EPA's approval of analytical methods is
authorized under section 304(h) of the CWA, as well as the general
rulemaking authority in section 501(a) of the Act. EPA uses these test
procedures to support the development of effluent limitations
guidelines, to establish compliance with NPDES permits, for
implementation of pretreatment standards, and for section 401
certifications.
The section 304(h) test procedures (analytical methods) are
specified in part 136 of title 40 of the Code of Federal Regulations
(CFR). The test procedures prescribed in part 136 are used for the
applications indicated above unless an alternate test procedure (ATP)
has been specifically approved by the EPA Administrator or the Regional
Administrator. The ATP application and approval process for new methods
and method modifications is specified at 40 CFR 136.4 and 136.5.
II. Purpose
The purpose of today's notice is to announce the change in the
internal EPA delegation of responsibility for the wastewater ATP
program within EPA and to revise the address published in the CFR for
submitting ATP applications to the Agency. Prior to today's action, the
Administrator had delegated responsibility for processing ATP
applications to the Environmental Monitoring Systems Laboratory in
Cincinnati (EMSL-Ci), for both wastewater and drinking water ATP
applications. Thus, the regulations at 40 CFR 136.4 and 136.5 directed
those applications to be sent to the EMSL-Ci address. To ``streamline''
Agency processes for action on analytical methods, EPA shifted the
internal delegation of responsibility from the office in Cincinnati to
the Headquarters EPA office in Washington, DC. To expedite processing
of all wastewater and drinking water ATP applications, applicants
should send them to the
[[Page 30762]]
Headquarters EPA office in Washington, DC rather than to Cincinnati.
EPA proposed revisions to these regulations in the March 28, 1997
Federal Register (62 FR 14976). The proposed action would streamline
the Office of Water's methods approval programs and would significantly
change the current ATP process if finalized. At the present time,
however, the ATP process for wastewater methods described at 40 CFR
136.4 and 136.5 remains in effect.
III. Administrative Procedure Act
EPA considers this notice of change in address to be exempt from
the requirement for prior notice and opportunity to comment under
section 553(b)(A) of the Administrative Procedure Act, 5 U.S.C.
553(b)(A). This notice merely informs the public of a change of Agency
organization, procedure, or practice. EPA also finds, for good cause,
that the opportunity for public comment is unnecessary because the EPA
personnel in Cincinnati no longer administer the CWA program for review
of alternate test procedures; so the change is ministerial and there is
no substantive issue for comment. For the same reasons, today's notice
is not subject to the delayed effective date provisions of APA section
553(d). Any unnecessary delay caused by the need to forward
applications from Cincinnati to Washington, DC also impedes the
expeditious processing of alternative test method applications.
IV. Regulatory Analysis
A. Executive Order 12866
Under Executive Order 12866 [58 FR 51735 (October 4, 1993)], the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more,
or adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to OMB review.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., requires EPA
and other agencies to prepare a final regulatory flexibility analysis
for regulations that have a significant impact on a substantial number
of small entities. This regulatory action does not have any adverse
impact on either small or large entities. Therefore, a regulatory
flexibility analysis is not required. Pursuant to section 605(b) of the
Regulatory Flexibility Act, 5 U.S.C. 605(b), the Administrator
certifies that this rule will not have a significant economic impact on
a substantial number of small entities.
C. Unfunded Mandates
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 of 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.
Today's rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, local, or tribal
governments or the private sector. In addition, EPA has determined that
this rule contains no regulatory requirements that might significantly
or uniquely affect small governments. This rulemaking merely announces
a change in address for applications for alternate test procedures
under the Clean Water Act and Safe Drinking Water Act. Therefore,
today's rule is not subject to the requirements of sections 202, 203
and 205 of the UMRA.
D. Paperwork Reduction Act
This rule contains no information collection requirements and
consequently is not subject to the Paperwork Reduction Act, 44 U.S.C.
3501 et seq.
E. Submission to Congress and the General Accounting Office Under the
Small Business Regulatory Enforcement and Fairness Act (SBREFA)
Under section 801(a)(1)(A) of the Administrative Procedure Act
(APA) as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996, EPA submitted a report containing this final rule and
other required information to the U.S. Senate, the U.S. House of
Representatives and the Comptroller General of the General Accounting
Office prior to publication of the rule in today's Federal Register.
This rule is not a ``major rule'' as defined by section 804(2) of the
APA as amended.
List of Subjects in 40 CFR Part 136
Environmental protection, Laboratories, Reporting and recordkeeping
requirements, Water pollution control.
Dated: May 29, 1997.
Robert Perciasepe
Assistant Administrator for Water.
For the reason set out in the preamble, part 136 of title 40 of the
Code of Federal Regulations is amended as set forth below:
PART 136--GUIDELINES ESTABLISHING TEST PROCEDURES FOR THE ANALYSIS
OF POLLUTANTS
1. The authority citation for 40 CFR part 136 continues to read as
follows:
[[Page 30763]]
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 136.4 is amended by revising paragraph (d) introductory
text to read as follows:
Sec. 136.4 Application for alternate test procedures.
* * * * *
(d) An application for approval of an alternate test procedure for
nationwide use may be made by letter in triplicate to the Director,
Analytical Methods Staff, Office of Science and Technology (4303),
Office of Water, U.S. Environmental Protection Agency, 401 M Street,
SW., Washington, DC 20460. Any application for an alternate test
procedure under this paragraph (d) shall:
* * * * *
3. Section 136.5 is amended by revising paragraphs (b) through (d),
(e)(1), and (e)(2) to read as follows:
Sec. 136.5 Approval of alternate test procedures.
(a) * * *
(b) Within thirty days of receipt of an application, the Director
will forward such application proposed by the responsible person or
firm making the discharge, together with his recommendations, to the
Regional Administrator. Where the Director recommends rejection of the
application for scientific and technical reasons which he provides, the
Regional Administrator shall deny the application, and shall forward a
copy of the rejected application and his decision to the Director of
the State Permit Program and to the Director of the Analytical Methods
Staff, Washington, DC.
(c) Before approving any application for an alternate test
procedure proposed by the responsible person or firm making the
discharge, the Regional Administrator shall forward a copy of the
application to the Director of the Analytical Methods Staff,
Washington, DC.
(d) Within ninety days of receipt by the Regional Administrator of
an application for an alternate test procedure, proposed by the
responsible person or firm making the discharge, the Regional
Administrator shall notify the applicant and the appropriate State
agency of approval or rejection, or shall specify the additional
information which is required to determine whether to approve the
proposed test procedure. Prior to the expiration of such ninety day
period, a recommendation providing the scientific and other technical
basis for acceptance or rejection will be forwarded to the Regional
Administrator by the Director of the Analytical Methods Staff,
Washington, DC. A copy of all approval and rejection notifications will
be forwarded to the Director, Analytical Methods Staff, Washington, DC,
for the purposes of national coordination.
(e) Approval for nationwide use. (1) Within sixty days of receipt
by the Director of the Analytical Methods Staff, Washington, DC, of an
application for an alternate test procedure for nationwide use, the
Director of the Analytical Methods Staff shall notify the applicant in
writing whether the application is complete. If the application is
incomplete, the applicant shall be informed of the information
necessary to make the application complete.
(2) Within ninety days of the receipt of a complete package, the
Analytical Methods Staff shall perform any analysis necessary to
determine whether the alternate method satisfies the applicable
requirements of this part, and the Director of the Analytical Methods
Staff shall recommend to the Administrator that he/she approve or
reject the application and shall also notify the applicant of such
recommendation.
* * * * *
[FR Doc. 97-14720 Filed 6-4-97; 8:45 am]
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