[Federal Register Volume 76, Number 156 (Friday, August 12, 2011)]
[Rules and Regulations]
[Pages 50129-50133]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-20451]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 72 and 75

[EPA-HQ-OAR-2009-0837; FRL-9450-7]
RIN 2060-AQ06


Protocol Gas Verification Program and Minimum Competency 
Requirements for Air Emission Testing; Corrections

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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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:
    <bullet> http://www.regulations.gov: Follow the online instructions 
for submitting comments.
    <bullet> Mail: Air and Radiation Docket and Information Center, 
U.S. Environmental Protection Agency, Mailcode: 2822T, 1200 
Pennsylvania Avenue, NW., Washington, DC 20460.
    <bullet> 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

[[Page 50130]]

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 (202) 566-1744, and the 
telephone number for the Air and Radiation Docket is (202) 566-1742.

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 
(202) 343-9158, e-mail at <a href="/cdn-cgi/l/email-protection#a9dacac1c8c2ccc7cbc8cac187c3c6c1c7e9ccd9c887cec6df"><span class="__cf_email__" data-cfemail="9be8f8f3faf0fef5f9faf8f3b5f1f4f3f5dbfeebfab5fcf4ed">[email protected]</span></a>. 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:

----------------------------------------------------------------------------------------------------------------
                                                                         Examples of potentially  regulated
               Category                         NAICS code                           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 Sec. Sec.  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 Sec.  75.4(e) must be added; (4) 
statements in Sec.  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<greek-i> 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 Sec.  75.4(e).''
    In the March 28, 2011 revisions to Sec.  75.4(e)(1), oxygen 
(O<INF>2</INF>) and moisture monitoring systems were inadvertently

[[Page 50131]]

omitted from the list of monitoring systems that require certification 
and/or recertification and/or diagnostic tests in certain situations. 
Adding O<INF>2</INF> 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 O<INF>2</INF> and moisture monitoring systems 
to undergo certification, and/or recertification, and/or diagnostic 
testing in certain situations.
    In the March 28, 2011 revisions to Sec.  75.4(e)(2), NO<INF>X</INF> 
concentration, O<INF>2</INF> 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 Sec.  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 
SO<INF>2</INF> or NO<INF>X</INF> emission controls are installed. 
Revised Sec.  75.4(e) also provides detailed data validation rules for 
these events. However, stakeholders have expressed concern about a 
statement in Sec.  75.4(e)(2)(iv) which appears to require that all 
certification tests of the low measurement scale of an SO<INF>2</INF> 
or NO<INF>X</INF> 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 Sec.  
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 SO<INF>2</INF> 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 Sec.  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,

[[Page 50132]]

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

0
1. The authority citation for part 75 continues to read as follows:

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


0
2. Section 75.4 is amended by revising paragraphs (e)(1) introductory 
text and (e)(2) to read as follows:


Sec.  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<INF>2,</INF> 
NO<INF>X</INF>, CO<INF>2</INF>, O<INF>2</INF>, 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, SO<INF>2</INF> concentration, NO<INF>X</INF> concentration, 
NO<INF>X</INF> emission rate, CO<INF>2</INF> concentration, 
O<INF>2</INF> 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<INF>X</INF> 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 
Sec. Sec.  75.31 through 75.37;
    (iii) The conditional data validation procedures of Sec.  
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 Sec.  
75.20(b)(3)(iv);
    (iv) Reference methods under Sec.  75.22(b);
    (v) For the event of installation of a flue gas desulfurization 
system or add-on NO<INF>X</INF> emission controls, quality-

[[Page 50133]]

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., SO<INF>2</INF> or NO<INF>X,</INF> 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 Sec.  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 SO<INF>2</INF> or NO<INF>X</INF> 
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 Sec.  75.66.
* * * * *

0
3. Appendix D to part 75 is amended by revising the heading to read as 
follows:

Appendix D to Part 75--Optional SO<INF>2</INF> Emissions Data Protocol 
for Gas-Fired and Oil-Fired Units

* * * * *
[FR Doc. 2011-20451 Filed 8-11-11; 8:45 am]
BILLING CODE 6560-50-P


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