2011-20451. Protocol Gas Verification Program and Minimum Competency Requirements for Air Emission Testing; Corrections

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is taking direct final action on corrections to the Protocol Gas Verification Program and Minimum Competency Requirements for Air Emission Testing final rule, which was published in the Federal Register of March 28, 2011 (76 FR 17288). The final rule also made a number of other changes to the regulations. After the final rule was published, it was brought to our attention that there are some incorrect and incomplete statements in the preamble, some potentially confusing statements in a paragraph of the rule text, and the title of Appendix D to Part 75 was inadvertently changed and is incorrect.

DATES:

This rule is effective on October 11, 2011 without further notice, unless EPA receives adverse comments by September 12, 2011. If we receive such comments, we will publish a timely withdrawal in the Federal Register to notify the public that this direct final rule will not take effect.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2009-0837, by one of the following methods:

• http://www.regulations.gov: Follow the online instructions for submitting comments.
• Mail: Air and Radiation Docket and Information Center, U.S. Environmental Protection Agency, Mailcode: 2822T, 1200 Pennsylvania Avenue, NW., Washington, DC 20460.
• Hand Delivery: Air and Radiation Docket, EPA West Building, Room 3334, 1301 Constitution Avenue, NW., Washington, DC 20460. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-2009-0837. 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 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 identity 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 may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be 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. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at the Air and Radiation Docket, EPA West Building, Room 3334, 1301 Constitution Avenue, NW., Washington, DC 20460. 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 [phone], and the telephone number for the Air and Radiation Docket is [phone].

FOR FURTHER INFORMATION CONTACT:

John Schakenbach, U.S. Environmental Protection Agency, Clean Air Markets Division, MC 6204J, Ariel Rios Building, 1200 Pennsylvania Ave., NW., Washington, DC 20460, telephone [phone], e-mail at [e-mail]. Electronic copies of this document can be accessed through the EPA Web site at: http://epa.gov/​airmarkets.

SUPPLEMENTARY INFORMATION:

EPA is publishing this rule without a prior proposed rule because we view this as a noncontroversial action and anticipate no adverse comment. However, in the “Proposed Rules” section of today's Federal Register, we are publishing a separate document that will serve as the proposed rule if adverse comments are received on this direct final rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information about commenting on this rule, see the ADDRESSES section of this document.

If EPA receives adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that this direct final rule will not take effect. We would address all public comments in any subsequent final rule based on the proposed rule.

Regulated Entities. Entities regulated by this action primarily are fossil fuel-fired boilers, turbines, and combined cycle units that serve generators that produce electricity for sale or cogenerate electricity for sale and steam. Regulated categories and entities include:

Category	NAICS code	Examples of potentially regulated industries
Industry	221112 and others	Electric service providers.

This table is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities which EPA is now aware could potentially be regulated by this action. Other types of entities not listed in this table could also be regulated. To determine whether your facility, company, business, organization, etc., is regulated by this action, you should carefully examine the applicability provisions in §§ 72.6, 72.7, and 72.8 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. Detailed Discussion of Rule Revisions

EPA has determined that the following corrections are needed to the March 28, 2011 final rule: (1) Two incorrect statements regarding the Louisiana DEQ's stack testing accreditation program must be removed; (2) an inadvertently-omitted reference to Question 15.5 of the “Part 75 Emissions Monitoring Policy Manual” must be added; (3) two inadvertent omissions in the text of § 75.4(e) must be added; (4) statements in § 75.4(e) that are apparently causing confusion among stakeholders (76 FR 17306 and 17307) must be clarified; and (5) the title of Appendix D to Part 75 must be corrected.

For several years, the Louisiana Department of Environmental Quality (DEQ) has implemented its own Louisiana Environmental Laboratory Accreditation Program (LELAP) that covers companies performing stack testing in Louisiana. Louisiana DEQ never agreed to cancel its stack testing accreditation program and replace it with accreditation to ASTM D 7036-04 or to recognize third party accreditors such as the Stack Testing Accreditation Council, as was incorrectly stated in the preamble to the March 28, 2011 final rule. Accordingly, the preamble text of the March 28, 2011 final rule (76 FR 17288) is corrected as follows:

Preamble Corrections

1. On page 17295, in the second column, the following two sentences should be removed: “EPA notes that the Louisiana DEQ has agreed to cancel its stack testing accreditation program (see Document ID# EPA-HQ-OAR-2009-0837-0072 in the docket) and in its place substitute accreditation to ASTM D 7036-04. Louisiana DEQ also agrees to recognize third party accreditors such as the Stack Testing Accreditation Council.”

2. On page 17300, in the first column, last sentence of the Response in section C, “Other Amendments”, paragraph 1, “Compliance Dates for Units Adding New Stack or Control Device”, is revised to read as follows: “Note that EPA intends to revise Questions 15.4, 15.5, 15.6, and 15.7 in the “Part 75 Emissions Monitoring Policy Manual” to be consistent with today's revisions to § 75.4(e).”

In the March 28, 2011 revisions to § 75.4(e)(1), oxygen (O₂) and moisture monitoring systems were inadvertently omitted from the list of monitoring systems that require certification and/or recertification and/or diagnostic tests in certain situations. Adding O₂ and moisture systems to the list does not impose any new requirements. Sections 75.10, 75.11, 75.12, 75.20(a) and 75.20(b) already require O₂ and moisture monitoring systems to undergo certification, and/or recertification, and/or diagnostic testing in certain situations.

In the March 28, 2011 revisions to § 75.4(e)(2), NO_X concentration, O₂ concentration, and moisture data were inadvertently omitted from the list of data types that need to be monitored and reported. Adding these three types of data to the list does not introduce any new recordkeeping or reporting requirements. Sections 75.57(d) and 75.64(a)(2) already require these parameters to be continuously monitored and reported to EPA.

The March 28, 2011 revisions to § 75.4(e) set forth the allotted windows of time in which all required certification and/or recertification and/or diagnostic testing of CEM systems must be performed, when a new stack is constructed or when add-on SO₂ or NO_X emission controls are installed. Revised § 75.4(e) also provides detailed data validation rules for these events. However, stakeholders have expressed concern about a statement in § 75.4(e)(2)(iv) which appears to require that all certification tests of the low measurement scale of an SO₂ or NO_X monitor must be passed in order for readings on the certified high scale to be reported as quality-assured. This was not the Agency's intent, and today's rule makes this clear.

Today's rule further clarifies the data validation rules in § 75.4(e)(2), recognizing that in some instances, additional testing may not be required for certain previously-certified monitoring systems; these monitoring systems can continue to report quality-assured data while testing of the other systems is in progress.

Finally, the March 28, 2011 revisions of Appendix D to Part 75 inadvertently changed the title of Appendix D to: “Appendix D to Part 75—Optional SO₂ Emissions Data Protocol for Gas-Fired and Oil-Fired Peaking Units.” Today's rule reinstates the correct title of Appendix D by removing the word “Peaking” from the title.

II. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735 (Oct. 4, 1993)) and is therefore not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011).

B. Paperwork Reduction Act

This action does not impose any new information collection burden. No new recordkeeping or reporting requirements are introduced by the revisions to § 75.4(e). The Office of Management and Budget (OMB) has previously approved collection of this information for Part 75 purposes, under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., with an assigned OMB control number of 2060-0626. The OMB control numbers for EPA's regulations under Title 40 (“Protection of Environment”) are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) 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.

EPA conducted a screening analysis of today's rule on small entities in the following manner. The SBA defines small utilities as any entity and associated affiliates whose total electric output for the preceding fiscal year did not exceed 4 million megawatt hours. The SBA 4 million megawatt hour threshold was applied to the Energy Information Administration (EIA) Annual Form EIA-923, “Power Plant Operations Report” 2008 net generation megawatt hour data and resulted in an estimated 1169 facilities. This finding was then paired with facility owner and associated affiliates data (owners with net generation over 4 million were disregarded), resulting in a total of 620 small entities with a 2008 average net generation of 650,169 megawatt hours. Multiplying net generation by the 2009 EIA average retail price of electricity (9.72 cents per kilowatt hour), the average revenue stream per small entity was determined to be $63,196,427 dollars. Because today's amendments to Part 75 merely clarify existing rule text and impose no new recordkeeping, monitoring, or reporting requirements, the respondent cost burden of this rule is determined to be $0.00 per year, for all of the 620 identified small entities.

After considering the economic impacts of today's rule on small entities, we certify that this action will not have a significant economic impact on a substantial number of small entities. All of the 620 small electric utilities directly affected by this final rule are expected to experience zero costs.

D. Unfunded Mandates Reform Act

This rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and Tribal governments, in the aggregate, or the private sector in any one year. The total annual respondent burden is estimated to be zero hours, with total annual labor and O&M costs estimated to be zero dollars. Thus, this rule is not subject to the requirements of sections 202 or 205 of UMRA.

This rule is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. This rule would generally affect large electric utility or industrial companies. The amendments simply makes minor corrections and clarifications to existing sections of Part 75 and correct the title of Appendix D, and impose no new economic burden on the affected sources.

E. Executive Order 13132: Federalism

This rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This rule simply makes minor corrections and clarifications to existing sections of Part 75 and Appendix D to part 75, which affect only the regulated sources. Thus, Executive Order 13132 does not apply to this rule.

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

This rule simply corrects and clarifies existing rule text in part 75 and Appendix D to part 75 and imposes no new requirements. Therefore, today's rule does not have Tribal implications, and Executive Order 13175 (65 FR 67249, November 9, 2000) does not apply.

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

EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the EO has the potential to influence the regulation. This rule is not subject to EO 13045 because it does not establish an environmental standard intended to mitigate health or safety risks.

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

This rule is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)), because it is not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This rulemaking simply clarifies and corrects existing rule text in Part 75 and in Appendix D to part 75, and does not involve technical standards. Therefore, the provisions of the NTTAA do not apply.

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 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. Today's rule makes minor corrections and clarifications to sections of the March 28, 2011 final rule and in Appendix D to Part 75, and imposes no new requirements.

K. Congressional Review Act

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. 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. A major rule cannot take effect until 60 days after it is published in the Federal Register. Although this action is not a “major rule” as defined by 5 U.S.C. 804(2), it will become effective on October 11, 2011.

List of Subjects in 40 CFR Part 75

• Environmental protection
• Acid rain
• Administrative practice and procedure
• Air pollution control
• Electric utilities
• Carbon dioxide
• Continuous emission monitoring
• Intergovernmental relations
• Nitrogen oxides
• Reporting and recordkeeping requirements
• Sulfur oxides
• Reference test methods
• Incorporation by reference

Dated: August 3, 2011.

Lisa P. Jackson,

Administrator.

For the reasons set forth in the preamble, part 75 of chapter I of title 40 of the Code of Federal Regulations is amended as follows:

PART 75—CONTINUOUS EMISSION MONITORING

1. The authority citation for part 75 continues to read as follows:

Authority: 42 U.S.C. 7601, 7651k, and 7651k note.

2. Section 75.4 is amended by revising paragraphs (e)(1) introductory text and (e)(2) to read as follows:

§ 75.4

Compliance dates.

* * * * *

(e) * * *

(1) Except as otherwise provided in paragraph (e)(3) of this section, the owner or operator shall ensure that all required certification and/or recertification and/or diagnostic tests of the monitoring systems required under this part (i.e., the SO_2, NO_X, CO₂, O₂, opacity, volumetric flow rate, and moisture monitoring systems, as applicable) are completed not later than 90 unit operating days or 180 calendar days (whichever occurs first) after:

* * * * *

(2) The owner or operator shall determine and report, as applicable, SO₂ concentration, NO_X concentration, NO_X emission rate, CO₂ concentration, O₂ concentration, volumetric flow rate, and moisture data for all unit or stack operating hours after emissions first pass through the new stack or flue, or reagent is first injected into the flue gas desulfurization system or add-on NO_X emission controls, as applicable, until all required certification and/or recertification and/or diagnostic tests are successfully completed, using:

(i) Quality-assured data recorded by a previously-certified monitoring system for which the event requires no additional testing;

(ii) The applicable missing data substitution procedures under §§ 75.31 through 75.37;

(iii) The conditional data validation procedures of § 75.20(b)(3), except that conditional data validation may, if necessary, be used for the entire window of time provided under paragraph (e)(1) of this section in lieu of the periods specified in § 75.20(b)(3)(iv);

(iv) Reference methods under § 75.22(b);

(v) For the event of installation of a flue gas desulfurization system or add-on NO_X emission controls, quality-assured data recorded on the high measurement scale of the monitor that measures the pollutant being removed by the add-on emission controls (i.e., SO₂ or NO_X, as applicable), if, pursuant to section 2 of appendix A to this part, two spans and ranges are required for that monitor and if the high measurement scale of the monitor has been certified according to § 75.20(c), section 6 of appendix A to this part, and, if applicable, paragraph (e)(4)(i) of this section. Data recorded on the certified high scale that ordinarily would be required to be recorded on the low scale, pursuant to section 2.1.1.4(g) or 2.1.2.4(f) of appendix A to this part, may be reported as quality-assured for a period not to exceed 60 unit or stack operating days after the date and hour that reagent is first injected into the control device, after which one or more of the options provided in paragraphs (e)(2)(ii), (e)(2)(iii), (e)(2)(iv) and (e)(2)(vi) of this section must be used to report SO₂ or NO_X concentration data (as applicable) for each operating hour in which these low emissions occur, until certification testing of the low scale of the monitor is successfully completed; or

(vi) Another procedure approved by the Administrator pursuant to a petition under § 75.66.

* * * * *

3. Appendix D to part 75 is amended by revising the heading to read as follows:

Appendix D to Part 75—Optional SO₂ Emissions Data Protocol for Gas-Fired and Oil-Fired Units

* * * * *