Guidelines Establishing Test Procedures for the Measurement of Mercury in Water

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:
. 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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