# Protocol Gas Verification Program and Minimum Competency Requirements for Air Emission Testing > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2011-6216 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** March 28, 2011 - **Citation:** 76 FR 17288 ## Text ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 72 and 75 [EPA-HQ-OAR-2009-0837; FRL-9280-9] RIN 2060-AQ06 Protocol Gas Verification Program and Minimum Competency Requirements for Air Emission Testing AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule; Reconsideration. SUMMARY: EPA is finalizing rule revisions that modify existing requirements for sources affected by the federally administered emission trading programs including the NO X Budget Trading Program, the Acid Rain Program, and the Clean Air Interstate Rule. EPA is amending its Protocol Gas Verification Program (PGVP) and the minimum competency requirements for air emission testing (formerly air emission testing body requirements) to improve the accuracy of emissions data. EPA is also amending other sections of the Acid Rain Program continuous emission monitoring system regulations by adding and clarifying certain recordkeeping and reporting requirements, removing the provisions pertaining to mercury monitoring and reporting, removing certain requirements associated with a class-approved alternative monitoring system, disallowing the use of a particular quality assurance option in EPA Reference Method 7E, adding two incorporation by references that were inadvertently left out of the January 24, 2008 final rule, adding two new definitions, revising certain compliance dates, and clarifying the language and applicability of certain provisions. DATES: This final rule is effective on April 27, 2011. The incorporation by reference of certain publications listed in the rule is approved by the Director of the Federal Register as of April 27, 2011. ADDRESSES: The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2009-0837 (which includes Docket ID No. EPA-HQ-OAR-2005-0132, and Docket ID No. EPA-HQ-OAR-2008-0800). 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/DC, EPA West Building, EPA Headquarters Library, Room 3334, 1301 Constitution Avenue, NW., Washington, DC. 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 schakenbach.john@epa.gov. Electronic copies of this document can be accessed through the EPA Web site at: http://epa.gov/airmarkets. SUPPLEMENTARY INFORMATION: 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. World Wide Web (WWW). In addition to being available in the docket, an electronic copy of the final rule is also available on the WWW through the Technology Transfer Network Web site (TTN Web). Following signature, a copy of the rule will be posted on the TTN's policy and guidance page for newly proposed or promulgated rules at http://www.epa.gov/ttn/oarpg. The TTN provides information and technology exchange in various areas of air pollution control. Judicial Review. Under CAA section 307(b), judicial review of this final action is available only by filing a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit on or before May 27, 2011. Under CAA section 307(d)(7)(B), only those objections to the final rule that were raised with specificity during the period for public comment may be raised during judicial review. Moreover, under CAA section 307(b)(2), the requirements established by today's final rule may not be challenged separately in any civil or criminal proceedings brought by EPA to enforce these requirements. Section 307(d)(7)(B) also provides a mechanism for the EPA to convene a proceeding for reconsideration if the petitioner demonstrates that it was impracticable to raise an objection during the public comment period or if the grounds for such objection arose after the comment period (but within the time for judicial review) and if the objection is of central relevance to the rule. Any person seeking to make such a demonstration to EPA should submit a Petition for Reconsideration, clearly labeled as such, to the Office of the Administrator, U.S. EPA, Room 3000, Ariel Rios Building, 1200 Pennsylvania Ave., Washington, DC 20460, with a copy to the Associate General Counsel for the Air and Radiation Law Office, Office of General Counsel, Mail Code 2344A, U.S. EPA, 1200 Pennsylvania Ave., NW., Washington, DC 20460. Outline. The following outline is provided to aid in locating information in this preamble. I. Detailed Discussion of Rule Revisions and Responses to Major Comments A. Amendments to the Protocol Gas Verification Program (PGVP) 1. Need for the PGVP 2. Cost 3. Effective Dates 4. Recordkeeping/Reporting 5. ISO 17025 6. Credit/Invoice Cancellation 7. Gas Type Codes 8. Use of 95% Confidence Interval in Tag Values 9. Uncertainty of Results 10. Implementation Options 11. Use of Existing Cylinders 12. If NIST Withdraws From Participation B. Amendments to the Minimum Competency Requirements for Air Emission Testing 1. Need for the Minimum Competency Requirements 2. Cost 3. Effective Dates 4. Accreditation 5. Scope of Testing 6. Affect on Validity of Test Data 7. Exams 8. Posting Non-Compliant Air Emission Testing Body (AETB) Names C. Other Amendments 1. Compliance Dates for Units Adding New Stack or Control Device 2. Reference Method 7E 3. Removal of Mercury Provisions 4. Miscellaneous Amendments II. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer Advancement Act J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations K. Congressional Review Act L. Petitions for Judicial Review I. Detailed Discussion of Rule Revisions and Responses to Major Comments On January 24, 2008, revisions to 40 CFR part 75, the Acid Rain Program continuous emission monitoring regulations, were published in the Federal Register ( see 73 FR 4340, January 24, 2008). To better ensure the accuracy of EPA Protocol gases used for Part 75 purposes, these amendments required that these gases be obtained from specialty gas producers that participate in a Protocol Gas Verification Program (PGVP). The final rule further provided that only PGVP participants were allowed to market calibration gas as “EPA Protocol gas”. The January 24, 2008 rulemaking also included a provision requiring minimum competency requirements for air emission testing bodies (AETBs). The PGVP and AETB provisions became effective on January 1, 2009. The Administrator received a Petition for Review, and a Petition for Reconsideration, claiming that EPA had not properly promulgated the PGVP. The Agency also received a Petition for Review challenging the AETB requirements. Subsequently, EPA published a final rule in the Federal Register staying the AETB requirements (73 FR 65554, November 4, 2008). EPA also posted a notice on an Agency Web site stating that the PGVP is not in effect, and a revised PGVP would not be effective until EPA goes through notice and comment rulemaking on any revised procedure. EPA is today announcing its reconsideration of the PGVP provisions of the January 24, 2008 final rule and is finalizing amendments to both the PGVP and AETB requirements. Today's final rule replaces the existing AETB requirements, effectively removing the stay. EPA is also finalizing amendments to other sections of Part 75 by adding several data elements associated with EPA's Emissions Collection and Monitoring Plan System (ECMPS) software, clarifying the requirements for including cover letters with monitoring plan submittals, certification applications, and recertification applications, removing the 90 unit operating days provision pertaining to the monitoring system certification deadline for new Acid Rain Program (ARP) units and newly-affected units that lose their ARP-exempt status, removing the provisions pertaining to mercury monitoring and reporting, removing certain requirements associated with a class-approved alternative monitoring system, disallowing the use of a particular quality assurance option in EPA Reference Method 7E, adding two incorporation by references that were inadvertently left out of the January 24, 2008 final rule and updating others, adding two new definitions, updating recordkeeping/reporting formats, and clarifying the language and applicability of certain provisions. Today's preamble provides responses to the major comments received on the proposed rule and discusses any resulting rule changes. The response to comments document ( see Docket EPA-HQ-OAR-2009-0837) provides Agency responses to all of the relevant comments received on the proposed rule. A. Amendments to the Protocol Gas Verification Program EPA encourages any EPA Protocol gas production site that is interested in participating in the PGVP to notify EPA as soon as possible after this final rule is published in the Federal Register by submitting the contact information described in 75.21(g)(1) by following the instructions on the CAMD Web site: http://www.epa.gov/airmarkets/emissions/pgvp.html. 1. Need for the PGVP Background EPA proposed to add § 75.21(g) to establish a refined EPA Protocol gas verification program to better ensure the accuracy of EPA Protocol gases. Every recent audit of EPA Protocol gases has found cylinders that fail the part 75 required ± 2% performance specification. A 2003 EPA audit (see Document ID#s EPA-HQ-OAR-2009-0837-0011, -0074, -0075, and -0076 in the docket) of EPA Protocol gases found an unacceptably high failure rate (11% of all components analyzed, with 57% of the production sites failing at least one gaseous component) with respect to the ± 2% standard in Part 75. A 2009 EPA Inspector General (IG) audit (see Document ID# EPA-HQ-OAR-2009-0837-0064 in the docket) also found an 11% failure rate over all components analyzed, with 39% of the production sites failing at least one gaseous component. The IG recommended that EPA implement an ongoing PGVP. A 2010 audit of EPA Protocol gases found a 10% failure rate over all components analyzed, with 40% of the production sites failing at least one gaseous component. These failures were found using a small blind sample of cylinders from each specialty gas company in the U.S. There is no reason to think these samples were not random. Therefore, it is likely that for the companies that had failed audited cylinders, other cylinders from those companies would fail. Summary of Comments and Responses Comment: Eleven commenters, including one representing seven specialty gas companies that provide the vast majority of EPA Protocol gases in the U.S., supported the PGVP, and three commenters opposed it. The accuracy of EPA Protocol gases is important because these gases are used to help ensure that the national emission reduction goals of the Clean Air Act are met. Response: Many of the proposed rule provisions of § 75.21(g) have been finalized as proposed. Significant changes to the PGVP provisions in § 75.21(g) are discussed below. 2. Cost Background EPA proposed several rule changes that added a small number of PGVP-related recordkeeping and reporting requirements. An information collection request (ICR) supporting statement was developed, as required by the Paperwork Reduction Act. EPA Protocol gas production sites selling EPA Protocol gases to part 75 affected sources will be required to have a small number of their cylinders analyzed each year, and provide annual notification to EPA with basic information on their facility and other information relevant to the PGVP. EPA anticipates that these costs will be passed through to the customers, which are generally sources subject to part 75, including large electric utility and industrial companies. Summary of Comments and Responses Comment: Several commenters suggested that the ICR for the proposed rule did not include sufficient detail and omitted certain costs associated with part 75 recordkeeping and reporting requirements. Another commenter stated that the proposed PGVP program was “exorbitantly expensive because it uses the analytical services of NIST.” Response: No rule changes were required to address the commenter's concerns. However, the Agency has revised the ICR for the final rule to include additional details and costs associated with part 75 recordkeeping and reporting requirements. For a more detailed discussion of this issue, refer to the ICR for the final rule. EPA performed an audit of EPA Protocol gases in 2010 and the National Institute of Standards and Technology (NIST) analyzed the cylinders EPA collected in the audit. NIST provided an initial estimate of $2,000 per cylinder to analyze tri-blend gas mixtures in the 2010 audit. The following costs for the PGVP are based on assumptions similar to those made for the 2010 audit. These assumptions are: (a) That only NO, SO 2 and CO 2 will be analyzed; (b) that only these compounds are within the gas mixture along with balance gas nitrogen (additional compounds within the gas mixture, even if they are not analyzed, complicate the analysis of the primary components); and (c) that the concentrations will all fall within a relatively narrow band that can be defined in the low, mid and high ranges. EPA notes that these assumptions may not hold from year-to-year, but believes that the following cost estimates are generally conservative. The 2010 audit consumed 715 hours of time to analyze and report on 57 cylinders. NIST believes they have designed a better sampling system and can reduce that time to 550 hours for the same 57 cylinders. This amount of resources equals $1,500 per cylinder analysis and report production, and is NIST's estimate for those activities for a similar PGVP audit in 2011. Assuming the above assumptions hold, NIST has agreed to commit to this cost estimate for three years, until 2013 ( see Document ID# EPA-HQ-OAR-2009-0837-0058 in the docket). The following costs are based on EPA's 2010 Protocol gas audit. If NIST analyzes 4 cylinders from each production site, the total annual cost due to the PGVP would be approximately $7,200 per production site ( see Document ID# EPA-HQ-OAR-2009-0837-0007 in the docket). This cost includes cylinder analysis and report production by NIST ($1,667/cylinder), average one-way shipping costs back to the production site ($91/cylinder), and average rental cost ($7/cylinder/month). The $1,667/cylinder cost estimate covers some deviations, e.g., there may be carbon monoxide in the gas mixtures, from the assumptions made for the 2010 audit, and is therefore higher than the $1,500/cylinder NIST commitment. The total cost of NIST analysis, report production, six months cylinder rental, and shipping back to the production site is approximately $1,800 per cylinder ( see Document ID# EPA-HQ-OAR-2009-0837-0007 in the docket). EPA estimates that the average increased cost due to the PGVP will be approximately $2 per cylinder ( see Table 3 in the ICR for the final rule, in Docket EPA-HQ-OAR-2009-0837). This estimate was derived from correspondence with both large and small specialty gas companies, which based their estimates on the number of cylinders they sold per year and the above cost estimates. For a small company that sells fewer cylinders per year, the cost per cylinder will be higher than for a larger company. However, even for a small company, the increased $2.00 per cylinder cost due to the PGVP is insignificant in comparison to the wide range of cost for the same type of EPA Protocol gas cylinder (EPA found the 2010 cost of the same tri-blend EPA Protocol cylinder ranged from approximately $225-$665 in the U.S. ( see Document ID# EPA-HQ-OAR-2009-0837-0009 in the docket)). To maintain these costs, scheduling of the PGVP audit activity during the year must be strictly followed by all the companies involved in the audit. Economy of batching similar gas cylinders and receipt of all similar cylinders within a specific time frame will enable NIST to control costs. Those cylinders with the appropriate funding documents that arrive within that time frame will be part of the audit. Those that do not will be excluded. That is the only way NIST will be able to control costs. The costs are minimized by the 4 cylinder limit per production site, and the cost containment measures implemented by NIST and described in the preamble to the proposed rule. 3. Effective Dates Background EPA proposed to add § 75.59(a)(9)(x)(A) to require that PGVP recordkeeping start on and after the date that is six months from the effective date of the final rule. The PGVP reporting would start prior to or concurrent with the submittal of the relevant quarterly electronic data report on and after January 1, 2011. Summary of Comments, Responses and Rule Changes Comment: Several commenters requested clarification of the effective dates for the PGVP provisions. One commenter requested that the Agency provide enough time for production sites to submit the information required to participate in the PGVP and for EPA to notify Part 75 sources of the participating production sites. Response: EPA agrees that the wording in the proposed rule should be clearer. The effective date of the final rule will be 30 days from the date it is published in the Federal Register. To provide more time for production sites to submit necessary information to participate in the PGVP and for the Agency to inform Part 75 sources of the PGVP participants, EPA has amended § 75.21(g)(6) to take effect 60 days from publication of the final rule in the Federal Register. On and after that date, sources subject to Part 75 that use EPA Protocol gas will need to purchase such gas from PGVP participants (or from a reseller that sells unaltered gas from a PGVP participant). However, § 75.21(g)(7) allows EPA Protocol gas cylinders certified by or ordered from any production site prior to 60 days from publication of the final rule in the Federal Register to be used up. Section 75.59(a)(9)(x)(A) and § 75.64(a)(5) of the final rule require PGVP recordkeeping and reporting for sources subject to part 75 to commence 180 calendar days from the date of publication of the final rule in the Federal Register. 4. Recordkeeping/Reporting Background EPA proposed to add § 75.59(a)(9)(x)(A) and to revise § 75.64(a)(5) to require Part 75 affected sources using EPA Protocol gas to record and report, respectively: (1) Gas level code; (2) a code for the type of EPA Protocol gas used; (3) start date and hour for EPA Protocol gas type code; (4) end date and hour (if applicable) for EPA Protocol gas type code; (5) the PGVP vendor ID issued by EPA for the EPA Protocol gas production site that supplied the gas cylinder; (6) start date and hour for PGVP vendor ID; and (7) end date and hour (if applicable) for PGVP vendor ID. EPA also proposed to revise § 75.59(a)(9)(x)(B) and § 75.64(a)(5) to require the recording and reporting, respectively, of the information in (1), (2) and (5) above for each usage of Reference Method 3A or Method 6C or 7E performed using EPA Protocol gas for the certification, recertification, routine quality assurance or diagnostic testing (reportable diagnostics only) of a Part 75 monitoring system. Summary of Comments, Responses and Rule Changes Comment: One commenter requested that EPA explain why such detailed reporting of start and end dates and hours corresponding to use of a particular type of Protocol gas is required and why the reporting of Protocol gas type codes is important. The commenter generally believes that tracking of information on individual gas cylinders is not necessary and EPA has provided no justification for it. The commenter is also concerned that the level of specificity may result in implementation issues or errors that complicate reporting. For example, EPA proposes to require sources to record not only the start and end date, but also the hour corresponding to use of a particular type of protocol gas and a particular PGVP vendor. In the past, recorded start and end dates and hours have been problematic because of differences between the way sources interpret the rule and the way EPA's software has been programmed. Response: It was originally envisioned that the PGVP related information would be reported in the monitoring plan. However, § 75.64(a)(5) of the final rule requires reporting of this information in the quarterly electronic reports. Therefore, start and end dates and times are not needed. Further, the reporting of low, mid or high-level gas concentrations is already required by § 75.59(a)(3). In view of these considerations, the only additional ECMPS reporting required by the final rule consists of: (a) A code for the type of EPA Protocol gas used; (b) the PGVP vendor ID; (c) the cylinder expiration date; and (d) the cylinder number. The reporting of Protocol gas type code is important for informing future PGVP audits. The reporting of the PGVP vendor ID is essential to allow EPA to determine that each EPA Protocol gas cylinder used by a Part 75 source is from a participating EPA Protocol gas production site. See the response to the next comment for the reasons why we are requiring cylinder expiration dates and cylinder numbers to be reported. Comment: Two commenters desired the PGVP program to be more rigorous. Response: With respect to recordkeeping and reporting, EPA has added electronic recordkeeping and reporting of cylinder expiration dates and cylinder numbers for all cylinders used for any certification, recertification, diagnostic, or quality assurance test required under Part 75. The Agency believes that this will strengthen the PGVP by reducing or eliminating the use of expired cylinders, and by improving the tracking of cylinder information. It also will assist inspectors in their preparation for field audits of the CEMS. Sections 75.59(a)(7)(iv)(X) and 75.59(a)(9)(v) already require these two items to be recorded in limited situations or in hardcopy only, and section 75.60(b)(6) already requires these two items to be provided to the State, local agency or EPA Regional Office in hardcopy RATA and emission test reports, when such reports are requested. 5. ISO 17025 Background The Agency proposed to add § 75.21(g) to establish a refined PGVP rather than relying on ISO 17025. Summary of Comments, Responses and Rule Changes Comment: One commenter suggested that EPA rely on ISO 17025 instead of establishing a refined PGVP. Response: The Agency disagrees with the commenter and has decided to finalize a refined PGVP in § 75.21(g) instead of requiring compliance with ISO 17025. EPA has no objection to specialty gas companies certifying or accrediting to ISO 17025 “General Requirements for the Competence of Testing and Calibration Laboratories”, but encourages companies to participate in the PGVP. Certifying or accrediting to ISO 17025 can be beneficial. However, the purpose of the ISO standard is different from the purpose of the PGVP. The purpose of ISO 17025 is to better assure that a laboratory has proper quality assurance and quality control (QA/QC) practices in place. The idea is that if proper QA/QC practices are in place, better products will result. However, this may not always be the case. As a matter of fact, one manufacturer (Scott Specialty Gases, now a part of Air Liquide) pointed out that ISO 17025 certification is not only extremely expensive, but it does not guarantee that a better protocol product will be manufactured. For example, one gas manufacturer which held certification to the ISO standard registered at least 1 failure in a blind audit (see Document ID#s EPA-HQ-OAR-2009-0837-0069 and -0070_in the docket). The only audits that ISO 17025 requires are internal audits of procedures, not products. The ISO standard states that these internal audits are to be conducted “periodically”, with no time frame specified. The results of these audits are to be provided to clients of the laboratory, but it is not clear that the results would be publicly available. Thus potential future clients may not be aware of how the laboratory was performing. The Agency believes that the PGVP audit results should be publicly available to allow potential EPA Protocol gas customers to make a more informed purchasing decision. The accuracy of EPA Protocol gases is important because these gases are used to help ensure that the national emission reduction goals of the Clean Air Act are met. The Agency's goal is to implement a cylinder audit program to better ensure the quality of these gases. EPA believes the best way to do that is to implement a PGVP and have a blind sample of cylinders analyzed by an independent, nationally recognized laboratory such as the National Institute of Standards and Technology. A blind sample is necessary to ensure that the cylinders analyzed are more representative of routine production at each production site rather than representative of the best possible performance that would likely occur if the production site knew that its cylinder was being audited. Small and large specialty gas companies commented that requiring conformance to ISO 17025 would be significantly more expensive than complying with the PGVP (see Document ID#s EPA-HQ-OAR-2009-0837-0057, -0065, -0066, -0067, -0068, -0069, -0070, and -0073 in the docket). One large specialty gas company stated that the PGVP would be more cost effective and would provide an actual representation of the quality of EPA Protocol gas cylinders. 6. Credit/Invoice Cancellation Background We proposed to add § 75.21(g)(5)(ii) to require that EPA receive written proof of a credit receipt or of cancellation of the invoice for the cylinders being audited from the EPA Protocol gas production site within two weeks of notifying the EPA Protocol gas production site that its cylinders are being audited by EPA. Summary of Comments, Responses and Rule Changes Comment: Several commenters requested that EPA allow 30-45 days for submittal of the invoice nullification or credit receipt, claiming that two weeks is insufficient time for large organizations handling hundreds of transactions and multiple accounts. One commenter suggested that if EPA does not allow 30-45 days it should include the cost of purchasing the cylinders in the bill that is presented to the Protocol gas manufacturers instead of a credit being issued to them. Another commenter added that because a producer's participation in the PGVP is contingent on meeting this requirement in a timely manner, the time period should not be so short as to jeopardize a producer's status as an EPA protocol gas producer. In addition, the commenter opined that the rule should expressly permit the electronic transmission of proof of cancellation of the invoice or crediting the purchaser's account. Response: EPA agrees that two weeks for submitting a credit receipt or a cancellation of the invoice is insufficient time, and that electronic as well as written credit receipt or cancellation of the invoice is acceptable. Section 75.21(g)(5)(ii) of the final rule allows up to 45 calendar days for production sites to provide EPA with electronic or written credit receipt or invoice cancellation. 7. Gas Type Codes Background EPA proposed to include EPA Protocol gas type codes in the ECMPS electronic reporting instructions to inform cylinder selection for the annual PGVP audits. Summary of Comments, Responses and Rule Changes Comment: Several commenters suggested that EPA use the code “C” for a single-blend CO, “C2” for a single-blend CO 2, and “NSCC” for an EPA Protocol gas quad-blend standard consisting of four certified components, NO X , SO 2 , CO 2 , and CO, and a balance gas. Response: Under Part 75, carbon monoxide is not required to be recorded or reported. Therefore, a code for that single blend gas cylinder will not be included in the reporting instructions. EPA must use “CO2” as the code for CO 2 because it is used thoughout EPA's database to describe that parameter and EPA wants to maintain consistent code conventions in the ECMPS reporting software. Because NO X can be certified as NO, NO 2 or NO and NO 2, EPA has added three codes to the list to represent the quad blend NO X , CO 2 , SO 2 and CO and a balance gas: SNCC representing SO 2 , NO, CO and CO 2 and a balance gas, SN2CC representing SO 2 , NO 2 , CO and CO 2 and a balance gas, and SNXCC representing SO 2 , NO, NO 2 , CO and CO 2 and a balance gas. Comment: Several commenters suggested that EPA should make clear in the electronic reporting instructions that the list of Protocol gas codes is not exclusive, meaning that these are not the only formulations of EPA Protocols, and that other types of EPA Protocols could be made to meet customer needs. Response: EPA agrees and will provide this clarification in the ECMPS electronic reporting instructions. Comment: Several commenters requested that EPA provide an option for “other,” which would indicate a formulation other than those identified on the list. Response: The Protocol gas type codes have been revised to include an “Other EPA-Approved EPA Protocol Gas Blend” category. However, sources will need to receive EPA approval to use it. EPA has found that if an “Other” category is allowed, sources will sometimes simply use that category instead of selecting the correct one. EPA will add new codes to ECMPS as needed. The ECMPS system allows these types of additions to be made quickly and easily. Comment: One commenter questioned the need for EPA Protocol gas type codes. Response: The reporting of Protocol gas type code is important for informing the cylinder selection for the annual PGVP audits. Comment: One commenter requested that EPA clarify that it is still allowing the use of a blend of gases as both zero gas and span gas. Response: Section 6.3.1 of Appendix A to Part 75 has been revised to clarify that a Protocol gas blend may be used as both a zero gas and span gas where appropriate. Comment: One commenter objected to certain multiple combination codes for Protocol gas mixtures, especially code SN1, which represents a bi-blend of SO 2 and NO X because this gas mixture could potentially include sulfur dioxide and nitrogen dioxide in the same cylinder. According to the commenter, the combination of nitrogen dioxide and sulfur dioxide mixtures cannot be manufactured because the nitrogen dioxide and sulfur dioxide will react with each other causing stability issues with the mixture. The commenter questioned whether the SN1 mixture means sulfur dioxide, and nitric oxide with the oxides of nitrogen reported. Response: Based on an August 2, 2010 telephone call from EPA to a specialty gas company, the Agency believes that an SO 2 and NO 2 combination may be possible. However, if an SO 2 and NO 2 combination cannot be properly manufactured, it probably will not be, and any such cylinders that are improperly manufactured will likely fail if audited in the PGVP. To clarify the meaning of the “SN1” code that was in the proposed rule preamble, the ECMPS PGVP reporting instructions at http://www.epa.gov/airmarkets/business/ecmps/docs/pgvp_aetb.pdf now include cylinder gas type codes: “SN” for SO 2 and NO, “SN2” for SO 2 and NO 2, and “SNX” for SO 2 , NO, and NO 2 instead of “SN1”. 8. Use of 95% Confidence Interval in Tag Values Background EPA proposed to revise section 5.1.4 (EPA Protocol Gases) of Appendix A to Part 75 to remove the reference to the 95-percent confidence interval, and to revise sections 5.1.4 and 5.1.5 (Research Gas Mixtures) to remove the reference to calculating uncertainty using the statistical procedures (or equivalent statistical techniques) that are listed in Section 2.1.8 of the “EPA Traceability Protocol for Assay and Certification of Gaseous Calibration Standards” (EPA Traceability Protocol), September 1997, as amended August 25, 1999, EPA-600/R-97/121. Summary of Comments, Responses and Rule Changes Comment: Several commenters suggested that the current provisions regarding uncertainty in sections 5.1.4 and 5.1.5 of Appendix A to part 75 are scientifically defensible and should remain. To tighten the confidence interval would require the enlargement of the uncertainty which the entire gas industry (including NIST and specialty gas manufacturers) have long encountered. For example, instead of +/−2% at the 95% confidence interval it might change to +/-3% at the 99% confidence interval. Response: The Agency is persuaded by these comments and has decided to retain the references in sections 5.1.4 and 5.1.5 to a 95% confidence interval and calculation of uncertainty using the statistical procedures (or equivalent statistical techniques) that are listed in Section 2.1.8 of the EPA Traceability Protocol. 9. Uncertainty of Results Background The Agency proposed to add § 75.21(g)(9)(ii) to require that the concentration of each audited cylinder be analyzed by NIST with an uncertainty of plus or minus 1.0 percent (inclusive) or better, unless otherwise approved by EPA. EPA also proposed to add a Figure 3 in Appendix B to part 75 with explanatory text at the bottom of the figure stating that “A gaseous component is said to fail only if all available analytical techniques used in the audit indicate greater than a 2.0% difference from the cylinder tag value.” Summary of Comments, Responses and Rule Changes Comment: One commenter suggested that EPA revise the text at the bottom of Figure 3 of Appendix B of Part 75 so that any overlap between the original tag error band and the audit analysis error band be considered when determining the pass/fail basis of a cylinder. For example, if the original tag had an error band of 2%, and the audit analysis had an error band of 1%, then more than a 3% difference would fail the PGVP. If the error band concept is not used, the assumption is there is no propagation of the two errors and the NIST audit analysis is error free (has an uncertainty of zero). The uncertainty of the PGVP begins at the NIST metrological institute level where even their internal standards have uncertainties associated with the tag value. The Protocol gas manufacturer's uncertainties and the NIST uncertainties must be propagated in order to achieve a combined error band. We cannot assume one or the other analytical process is error free. Response: EPA has amended the statement at the bottom of Figure 3 in part to read: A gaseous component is said to fail when the absolute value of the difference between the audit and vendor concentration values is greater than 2.2%. The 2.2% value is determined by using the “paired t test” at 95% confidence, with an uncertainty of plus or minus 2.0% (fixed by Part 75, Appendix A, section 5.1.4(b)) and plus or minus 1.0% (expanded uncertainty with coverage factor k=2) for the gas vendor and audit, respectively. If the plus or minus 1.0% audit expanded uncertainty value changes, the 2.2% value may change. Comment: “EPA should adopt a 2% uncertainty for the NIST analysis of the cylinders.” Response: The Agency disagrees. An expanded uncertainty (coverage factor k=2) of plus or minus 1.0 percent (calculated combined standard uncertainty of plus or minus 0.5%), inclusive, or better in the NIST analysis was assumed when the PGVP costs were estimated in the proposed rule. A 2010 EPA audit of EPA Protocol gases required a 0.5% uncertainty in the NIST analysis for gas concentrations commonly used by Part 75 sources. If EPA were to allow the uncertainty of the NIST analysis to be up to ±2.0%, the audit results would need to allow for approximately a 4.0% difference between the NIST result and the vendor result before a cylinder could be said to fail. A ±2.0% uncertainty for the NIST audit results defeats the purpose of the PGVP. The Part 75 accuracy standard for EPA Protocol gases is ±2.0% ( see Part 75, Appendix A, section 5.1.4(b)). To verify that a gas meets this standard, ideally NIST would need to have a 0.0% uncertainty. The further away the NIST audit results are from a 0.0% uncertainty, the less certain it is that this standard is achieved. Section 75.21(g)(9)(ii) in the final rule allows EPA to approve a greater NIST analytical uncertainty if required, e.g., for certain low concentration gases. EPA has added two new definitions in section 72.2 to help clarify the terms “expanded uncertainty” and “coverage factor” ( see http://physics.nist.gov/cuu/Uncertainty/coverage.html ). 10. Implementation Options Background EPA proposed four implementation options for the PGVP in the preamble to the June 11, 2010 proposed rule regarding the number of production sites and cylinders that are audited each year and the length of time allotted to NIST to analyze the cylinders and to report the results. Summary of Comments, Responses and Rule Changes Comment: One commenter stated that Option 1 could result in a specialty gas company, which is removed after December 31, being unable to be relisted for a length of time that is more than intended. Response: EPA agrees that if the NIST audit report takes longer than one year to complete so that EPA receives the audit report in the first half of a calendar year and a production site was not in the audit report, that production site might not be re-listed for up to two years. In this situation, section 75.21(g)(5)(iii) of the proposed rule did not allow re-listing until December 31 of the next year. This period of time before relisting is longer than was intended. In addition, EPA understands that it would be unfair not to re-list a production site due to circumstances beyond the production site's control. Therefore, the Agency has revised sections 75.21(g)(5)(ii) and (iii) to address these concerns. For the two relevant situations in sections 75.21(g)(5)(ii) and (iii), a production site is eligible for relisting 180 calendar days after the date of notice of its delisting, provided that the information required by § 75.21(g)(1) is submitted to EPA. Comment: One commenter opposed Option 2 because it reduced the number of cylinders per site selected for verification. This commenter also stated that while the proposed four cylinders do not constitute a representative sample, two cylinders would be even less so. Two commenters opposed Option 3 stating that it would benefit large specialty gas companies and would assume that all production sites for a specialty gas company would have equivalent capabilities. This commenter also stated as was shown in the IG's report it is possible, indeed, likely, that a manufacturer with multiple sites will have some production sites that pass and some that fail. Response: While the Agency understands the shortcomings of Option 1, 2 and 3, EPA believes that these options are necessary to preserve the ability of producers to sell EPA Protocol gases in possible (but unlikely) situations where cylinder procurement, shipping, or analyses take longer than expected to complete, and for EPA to implement the PGVP under a variety of possible conditions. However, note that all three of these options are incorporated in Option 4. Two commenters supported Option 4 and two commenters supported Option 4 but without Option 1. For the reasons previously stated, EPA will retain the maximum flexibility of Option 4 when implementing the final rule. Consistent with the preamble discussion in the proposed rule ( see 75 FR 33395, June 11, 2010), the Agency has also revised section 75.21(g)(10) to allow a participating EPA Protocol gas production site to continue to sell EPA Protocol gas cylinders in the event that none of its cylinders are audited. Comment: Two commenters preferred that the PGVP be more rigorous. Response: With respect to implementation options, EPA has added the following text in section 75.21(g)(9)(iv) to expedite the posting of audit results: “To be considered in the final posted audit report, EPA must receive comments, and any cylinder re-analyses from participating EPA Protocol gas production sites within 45 days of the participating EPA Protocol gas production site's receipt of the draft redacted audit report sent by EPA.” 11. Use of Existing Cylinders Background The Agency proposed to add § 75.21(g)(6) and to revise section 6.5.10 in Appendix A to Part 75 to allow for the situation when an EPA Protocol gas production site is removed from the list of PGVP participants after their gases are procured, but before the gases have been consumed. In that event, the gas cylinders may continue to be used for the purposes of this part until the earlier of the cylinder's expiration date or the date on which the cylinder gas pressure reaches 150 psig. EPA also proposed to add Section 75.21(g)(7) and to revise section 6.5.10 in Appendix A to Part 75 to allow EPA Protocol gas cylinders purchased prior to the effective date of the final rule from a production site that is not participating in the PGVP to be used for the purposes of this part until the earlier of the cylinder's expiration date or the date on which the cylinder gas pressure reaches 150 psig. Summary of Comments, Responses and Rule Changes Comment: Several commenters supported these provisions, but requested that the Agency clarify that all cylinders ordered before the effective date of the final rule be allowed for part 75 purposes through their stated expiration date or a final pressure of 150 psi. Clear, definitive wording on this subject will prevent the waste—both economic and environmental—of potentially thousands of cylinders that may be in use or may have valid service lives as of the effective date of the final rule. Response: EPA agrees and has revised § 75.21(g)(7) and section 6.5.10 in Appendix A to part 75 to state that an EPA Protocol gas cylinder certified by or ordered from any production site no later than 60 days after the date of publication of the final rule in the Federal Register may be used for the purposes of this part until the earlier of the cylinder's expiration date or the date on which the cylinder gas pressure reaches 150 psig. The Agency chose to use “certified by” instead of “manufactured by” because a cylinder could be manufactured and certified for, e.g., two years, and then re-certified for up to another two years if it was not consumed. EPA does not want cylinders to be re-certified by an EPA Protocol gas production site that was not participating in the PGVP and continue to be used for potentially four years or more after the PGVP takes effect. Section 75.21(g)(7) and section 6.5.10 in Appendix A to part 75 have also been slightly revised to allow that in the event that an EPA Protocol gas production site is removed from the list of PGVP participants on the same date as or after the date on which a particular cylinder has been certified or ordered, that gas cylinder may continue to be used for the purposes of this part until the earlier of the cylinder's expiration date or the date on which the cylinder gas pressure reaches 150 psig. As an example, a gas cylinder can be certified for two years and then be re-certified for another two years, if it has not been consumed and its pressure is still above 500 psig. EPA does not want cylinders obtained from production sites that are not participating in the PGVP to potentially be used for four years (or more) after the PGVP takes effect. To prevent this from occurring, statements have been added to § 75.21(g)(7) and section 6.5.10 of Appendix A, prohibiting a production site that is not participating in the PGVP from recertifying such cylinders to extend their useful life and providing those cylinders to a source subject to part 75. 12. If NIST Withdraws From Participation Request for Comment In the unlikely event that the National Institute of Standards and Technology (NIST) withdraws from participation in the PGVP, EPA requests comments on how an analytical lab should be selected to analyze cylinders collected under the PGVP. Comments should be sent to Docket ID No. EPA-HQ-OAR-2009-0837. The Agency suggests that such an analytical lab should meet the following minimum criteria: (A) Have no conflict of interest with any participating EPA Protocol gas production site; (B) Be capable of analyzing EPA Protocol gas cylinders with an expanded uncertainty (coverage factor k=2) of plus or minus 1.0 percent (calculated combined standard uncertainty of plus or minus 0.5%) or better; (C) Use NIST-certified analytical reference standards of appropriate mixtures; (D) Have no analytical interferences or correct for them; (E) Identify equipment and calibration procedures that will be used to conduct the testing; (F) Provide credentials of key personnel conducting the testing and analysis; (G) Provide assurances that the analytical lab will adhere to cost-containment provisions in any contract it signs, and a description of the cost containment provisions it would agree to; and (H) Provide a date on which the analytical lab will be available to begin PGVP cylinder analyses. EPA is interested in determining: (a) Whether the above acceptance criteria are sufficient; (b) how many labs could meet the above criteria or other suggested criteria; (c) how compliance with the acceptance criteria can be verified; and (d) contact information for the labs that could meet appropriate criteria. Would use of multiple labs be appropriate under the PGVP? Please consider that use of multiple labs would mean: (a) Different analysts, reference material, equipment, and analytical techniques would be used by the different labs; (b) possible logistical problems with EPA contractors mistakenly shipping cylinders to the wrong lab, causing delays and possibly lost cylinders; (c) possible problem with intercomparison of results because there would not be a common reference standard, analyst, equipment, or analytical technique; and (d) possible increase in the chance of collusion between a lab and a production site that pays the lab. B. Amendments to the Minimum Competency Requirements for Air Emission Testing 1. Need for the AETB Requirements Background EPA proposed to add § 75.21(f) and to revise section 6.1.2 of Appendix A to part 75 to replace the existing air emission testing body (AETB) requirements. Summary of Comments, Responses and Rule Changes Comment: Several commenters supported the AETB minimum competency requirements. However, several commenters questioned the need for these requirements. These commenters suggested that the ASTM D 7036-04 provisions are subjective, arbitrary or unclear and are not designed such that each provision could be a federally enforceable regulatory requirement; and that there is no evidence that compliance with the ASTM standard will prevent mistakes. These commenters suggested a more appropriate approach is to encourage voluntary compliance. Response: Small and large stack testing companies, sources subject to part 75, and State and EPA regulators in the ASTM D 7036-04 work group believe that implementation of the ASTM Practice will result in improved data quality. EPA believes the evidence is strong that unqualified, under-trained and inexperienced testers are routinely deployed on testing projects. EPA has had experiences with tests that have been invalidated or called into question due to poor performance by testing contractors (see Document ID#s EPA-HQ-OAR-2009-0837-0015, -0016, -0062, and -0063, and Document ID# EPA-HQ-OAR-2005-0132-0035 in the dockets). For example, an EPA Office of Inspector General Audit Report “Report of EPA's Oversight of State Stack Testing Programs”, Report Number 2000-P-00019, September 11, 2000, states that the New Jersey Department of Environmental Protection (NJDEP) made significant corrections to 57 percent of stack tests, that 86 percent of the test protocols were deficient, 28 percent of the test programs had to be repeated for at least one parameter, and 26 percent of the test reports required significant correction, clarification, or were rejected by the NJDEP. The NJDEP states they have seen errors in approximately 50 percent of recent stack tests. While EPA believes that meeting the requirements of ASTM D7036 and having a Qualified Individual on site during testing does not guarantee proper performance of any individual test, these actions will likely result in proper test execution and high quality data generation. EPA also believes that third party ( e.g., State agency) oversight helps ensure that testing is properly conducted and strongly encourages such oversight to continue. Although there might be no evidence that compliance with the ASTM standard will prevent mistakes, there is also no evidence that compliance with the ASTM standard will not prevent mistakes. Voluntary compliance with any minimum competency standard has not worked for the past 30 years, which is how long EPA and other organizations have tried to develop an acceptable standard for stack testers. There are many reasons why voluntary compliance has not worked, including disagreement among stack test companies on a minimum competency standard, and the sources' often used practice of hiring the lowest bidder. The lack of voluntary compliance with a minimum competency standard is also why various States, including Louisiana, have developed their own stack testing regulatory standards. A driving force for the development of the ASTM standard was to prevent the patchwork of standards that was beginning to occur throughout the U.S. If each State were to develop its own standard for stack testing, testing costs would increase as stack testers performing work in multiple States would have to qualify in and abide by differing requirements in multiple jurisdictions. 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. Many of the proposed rule provisions of § 75.21(f) and section 6.1.2 have been finalized as proposed. Significant changes to these sections are discussed below. 2. Cost Background EPA proposed to add § 75.21(f) and to revise section 6.1.2 of Appendix A to part 75 to require AETBs that perform certain part 75 QA tests to provide a certification that they conform with ASTM D 7036-04. EPA also revised § 75.59 and § 75.64 to include a small number of AETB-related recordkeeping and reporting requirements. For these requirements, an information collection request (ICR) supporting statement was developed, as required by the Paperwork Reduction Act. Summary of Comments, Responses and Rule Changes Comments: Several commenters suggested that AETB costs were underestimated. One commenter stated that EPA's economic analysis is highly flawed and was clearly prepared by someone unfamiliar with the business side of the industry, but this commenter did not provide any supporting data. This commenter further stated that the proposed AETB requirements will not drive prices down, and whatever increase in price there is cannot necessarily be passed on to the customer. In addition, smaller testing firms suffer more from this increased cost, even though they may be the better choice in many cases. The same commenter noted that EPA “assumes in its economic analysis that the majority of tests done are for part 75. That is patently false, at least for many if not most companies.” Response: The economic analysis only included Part 75 tests because the proposed rule only applies to Part 75 sources. Unless a stack test company accredits to ASTM D 7036-04 through, e.g., the Stack Testing Accreditation Council, the stack test company does not have to meet ASTM D 7036-04 for non-part 75 testing. The Agency notes that if a company chooses to accredit to the ASTM standard, it may be possible to limit the scope of accreditation to Part 75 testing. In any case, the proposed rule does not require accreditation. A letter of certification signed by senior management of the AETB will suffice. Comment: One commenter suggested that EPA include: (1) The cost for staff time to develop and implement the quality manual required by the ASTM practice, including document control procedures, hiring of additional personnel, performance of annual audits, and documentation of corrective action, (2) application fees and the cost of preparing applications for accreditation and/or QI qualification, (3) the cost of QI exams, including tuition for preparatory courses, exam fees, and travel expenses, (4) any new costs associated with preparation of test plans and reports to comply with the specific criteria in the practice, and (5) cost of required records storage and backup. Response: The Agency believes that AETBs should already be operating in a manner consistent with ASTM D 7036-04. However, EPA revised the ICR to include additional supporting detail for the estimated burden associated with increased annual quality-assurance and maintenance costs that would be passed on to a unit subject to Part 75. Based on information provided by stack testing firms, a conservative one percent increase was applied to the previously established annual O&M costs per unit at each respondent facility. This is based on the average stack testing industry costs of preparing a QA/QC manual ($6,000), obtaining QSTI certification ($1,200), and annual operating costs of maintaining the quality control system ($5,000-$50,000 depending on size). The increased stack testing overhead costs translate into an increased performance test cost of $68 to $549 per RATA test depending on the size of the company. The increased cost per test drops even further if applied to all types of tests performed by typical stack testing companies. EPA assumes that the costs will be passed through to the customers, which are generally sources subject to part 75, including large electric utility and industrial companies. 3. Effective Dates Background EPA proposed to add § 75.59(a)(9)(xi), § 75.59(a)(15), § 75.59(b)(6), and § 75.59(d)(4) to require that AETB-related recordkeeping start on and after the date that is six months from the effective date of the final rule. The Agency proposed to revise Section 75.64(a)(5) to require the AETB-related reporting to start prior to or concurrent with the submittal of the relevant quarterly electronic data report on and after January 1, 2011. Summary of Comments, Responses and Rule Changes Comment: The Agency received requests to extend the AETB compliance deadline from three commenters. One of those commenters suggested that EPA extend the AETB compliance deadline to January 2012. None of the commenters thought that EPA was providing too much time. Several commenters requested that EPA clarify the effective dates of the AETB-related provisions. Response: EPA agrees that the wording in the proposed rule could be clearer. The effective date of the final rule is 30 days from the date it is published in the Federal Register. The Agency agrees that a compliance deadline for the AETB-related provisions of 365 days from publication of the final rule in the Federal Register is more reasonable for several reasons. There are approximately 400 stack test companies in the U.S. Only about 30 percent of them have at least one qualified individual. But even these companies may not yet be fully compliant with ASTM D 7036-04. Further, the large amount of near term stack testing that must be performed to respond to the Agency's requests for information collection under Section 114 of the Clean Air Act to assess the emissions of hazardous air pollutants from electric generating units provides even less time for companies to come into compliance with the AETB provisions. Therefore, to better ensure that every stack test company has a reasonable time to comply with ASTM D 7036-04, EPA has extended both the compliance date in § 75.21(f) and the commencement date in section 6.1.2(a) of Appendix A to 365 days after the date of publication of the final rule in the Federal Register . Section 75.64(a)(5) has also been revised to require the information in §§ 75.59(a)(15), (b)(6), and (d)(4) to be provided commencing 365 days after the publication date of the final rule in the Federal Register . 4. Accreditation Background EPA proposed to revise section 6.1.2(b) in Appendix A to part 75 to require a part 75 source owner or operator to obtain from an AETB a certification that as of the time of testing the AETB is operating in conformance with ASTM D 7036-04. This certification must be provided in the form of either (1) a certificate of accreditation for the relevant test methods issued by a recognized, national accreditation body; or (2) a letter of certification for the relevant test methods signed by a member of the senior management staff of the AETB. EPA also requested comment on whether the Agency should require accreditation. Summary of Comments, Responses and Rule Changes Comment: Several commenters opposed requiring accreditation. One commenter requested that EPA eventually require third party accreditation for all AETBs. The commenter recognizes, however, that the U.S. accreditation program is just beginning and that the requirement for all AETBs to be accredited may be premature, and suggested the following approach: Section 6.1.2(b)(2) should be amended to include a “sunset clause” for self-certified AETBs. Specifically, five years after the effective date of the final rule AETBs should not have the option to self-certify and must have a certificate of accreditation from a third party accreditation body. This five year period provides more than ample time for the maturation of U.S. AETB accreditation programs. Response: The commenter did not provide any evidence to suggest that accreditation is any better at assuring compliance with ASTM D 7036-04 than self-certification. Over time, if evidence is found that self-certification is no longer appropriate, then at that time the Agency could consider proposing revisions of the rule to require accreditation. 5. Scope of Testing Background EPA proposed to add § 75.21(f) and to revise section 6.1.2(b) in Appendix A to Part 75, among other things, to limit the scope of testing required to be performed by AETBs, as defined in § 72.2 of this chapter. Section 75.21(f) and section 6.1.2(b) would require AETBs that perform relative accuracy testing under 75.74(c)(2)(ii), section 6.5 of Appendix A to Part 75, and section 2.3.1 of Appendix B to Part 75, and stack testing under § 75.19 and section 2.1 of Appendix E to Part 75 to provide a certification that they conform with ASTM D 7036-04. Conformance to the requirements of ASTM D 7036-04 would apply only to these tests performed on Part 75 affected sources. Summary of Comments, Responses and Rule Changes Comment: One commenter suggested that if an AETB fails to declare a limit on the applicability of ASTM D 7036-04 and fails to perform any work in full conformance to ASTM D 7036-04, this would jeopardize even that work that may have been performed in accordance with the standard. The preamble to the proposed rule indicates that an AETB would be evaluated against its quality manual when assessing AETB conformance to the standard. The commenter recommends that the final rule clarify the limits of applicability of ASTM D 7036-04 when evaluating an AETB's conformance to ASTM D 7036-04. Response: Section 4.1, Note 3 in ASTM D 7036-04 states: “There is no requirement to define a scope of testing. It is a requirement of this practice that prior to performing a test method for the first time, the AETB has in place resources, training, and QA/QC consistent with this practice to insure data of acceptable quality are produced.” It is EPA's intent in this rulemaking that the ASTM D 7036-04 scope of testing be limited to Part 75 relative accuracy test audits, and Part 75 stack tests related to Appendix E and low mass emitters. However, EPA understands the concern of the commenter and has revised section 6.1.2(a) of Appendix A to part 75 to allow an AETB to limit its conformance to ASTM D 7036-04 to units subject to this part and to the test methods required by this part. Section 6.1.2(b) has been similarly revised. Unless a stack test company accredits to ASTM D 7036-04 through, e.g., the Stack Testing Accreditation Council, the stack test company does not have to meet ASTM D 7036-04 for non-part 75 testing. The Agency notes that even if a company chooses to accredit to the ASTM standard, it may be possible to limit the scope of accreditation to Part 75 testing. In any case, the proposed rule does not require accreditation. A letter of certification signed by senior management of the AETB will suffice. 6. Effect on Validity of Test Data Background EPA proposed to add section 6.1.2(f) in Appendix A to Part 75, which states that meeting two conditions (1) providing to the owner or operator of a part 75 source with a certificate of accreditation or letter of certification that an AETB is operating in conformance with ASTM D 7036-04; and (2) having at least one Qualified Individual on site conducting or overseeing the applicable tests would be sufficient proof of validity of test data that otherwise meet the requirements of part 75. Summary of Comments, Responses and Rule Changes Comment: One commenter strongly supported section 6.1.2(f), but explained that the provision should not be understood to validate data that do not otherwise meet the requirements of part 75. Another commenter strongly objected to inclusion of the provision in the rule and requested that EPA remove section 6.1.2(f). This commenter provided the following rationale: “(1) This section has no legal consequence and no benefit. Certification of testers and of a Qualified Individual on or leading the test team will not change evaluations and use of tests and test reports: with or without it, regulators should evaluate tests and test reports, and, if they find the work and records valid, accept the `validity of test data that otherwise meet the requirements of this part'. This rule accomplishes requiring certified people to do the test. Once such people have performed the test, it has no more legal effect. “(2) This section will give the false impression to those who do not know that Part 75 requires correct test performance that review is superseded by tester accreditation and QI participation, that their testing must be accepted as valid. “(a) It is unfair and a disservice to all to give this impression to facilities and testers. It will lead to substandard testing, which may get approved anyway and costs everyone involved extra effort, time, and expense. “(b) Many regulatory agencies will have this impression and will not reject invalid testing performed by accredited testers with QIs on their teams because they will believe that this section says they have to accept the test results. Do not give this false impression. It will lead to worse testing and more acceptance of invalid testing. “(3) Accreditation does not mean a test is valid. Some regulatory agencies will believe this section means this. This section then leads to lack of review and of enforcement of valid testing; the incentive for testers will be to get accreditation, then cut corners. We all know unplanned things happen while source testing that may require method modification. However, source testers seem to forget or not realize they are actually modifying the test method.” Response: EPA understands that it may be unfair to hold an owner or operator of a source subject to Part 75 responsible for certain actions (or inactions) related to an external AETB's compliance with ASTM D7036-04 and attempted to address this in section 6.1.2(f) of the proposed rule by limiting the responsibility of the owner or operator of a part 75 source. As the commenter states, several sections of Part 75 require units subject to part 75 to meet certification and ongoing QA/QC requirements: § 75.4(f) requires sources using Appendix E to meet those requirements. Section 75.4(j) requires successful completion of certification tests or use of maximum potential concentration, maximum potential flow, maximum potential NO X emission rate, or use appropriate reference methods or another procedure approved by the Administrator. Section 75.5(b) states that no affected unit shall be operated without complying with the requirements of §§ 75.2-75.75 and Appendices A-G to part 75. Section 75.10(b) requires that sources meet the performance specifications in Appendix A to part 75. (The Appendix A relative accuracy performance specifications are also required for the ongoing relative accuracy tests in Appendix B to part 75.) EPA believes that the language in Appendix A, section 6.1.2(f) is clear that all part 75 testing requirements must be met. However, the Agency understands the concern of the commenter, and has amended 6.1.2(f) in the final rule to read as follows: “Except as provided in paragraph (e), no RATA performed pursuant to § 75.74(c)(2)(ii), section 6.5 of appendix A to this part or section 2.3.1 of appendix B to this part, and no stack test under § 75.19 or Appendix E to this part (or portion of such a RATA or stack test) conducted by an AETB (as defined in § 72.2) shall be invalidated under this part as a result of the failure of the AETB to conform to ASTM D 7036-04. Validation of such tests is determined based on the other part 75 testing requirements. EPA recommends that proper observation of tests and review of test results continue, regardless of whether an AETB fully conforms to ASTM D7036-04.” The Agency also wishes to clarify that an AETB's failure to conform to ASTM D 7036-04 with respect to testing at a particular unit does not affect its ability to certify conformance prior to conducting testing at another unit as long as it is following the procedures in ASTM D 7036-04 for addressing nonconformance. 7. Exams Background EPA proposed to add section 6.1.2(e) in Appendix A to Part 75 to require having at least one Qualified Individual (QI) on site conducting or overseeing applicable tests. A QI must pass appropriate exam(s), described in ASTM D 7036-04, covering the test methods the QI will perform. Summary of Comments and Responses No rule changes were required. Comment: Several commenters requested that the QI exams be better targeted to the test methods the QI will actually perform, and not include additional test methods. A representative comment stated that the test program developed for QIs is excessive. The methods are grouped, and may not represent the type of work an individual or firm will conduct. For example, if a company elects not to perform 3-D probe work in Method 2F, there is no way to exclude these questions from the current QI test which puts this individual at a disadvantage if there are questions on the exam concerning a method the firm will not conduct. Response: The QI exams provided by the Source Evaluation Society (SES) are created with the knowledge and wisdom of many experienced stack testers. Periodically, these exams are modified using feedback from people who have taken the exams. The interdependency of emissions testing methods is inherent in any emissions testing program. EPA and the SES membership, which includes large and small stack test companies, believe that an individual who can pass a multiple method group exam is one who understands emissions testing principles broadly enough to lead a test team and can be expected to address the myriad of complicating issues that arise during a source test. It is EPA's understanding that the SES membership can and has evaluated and adjusted the qualifications approach from time to time. Commenters are welcome to work with SES to address concerns they may have. While recognizing that there might be opportunities for improvement, the Agency supports the QI qualification exam program in its current form. Comment: Several commenters stated that it makes no sense for an individual to sit for an exam that covers material for which the candidate is not qualified to perform or intends to perform. This means that an AETB that performs a limited scope of testing may legitimately argue that a qualified external exam provider is not available and may choose to offer internal exams. The current language in the preamble to the proposed rule favors an external exam provider. EPA should recognize the validity of internal examination providers when suggesting that sources obtain information about examination providers. Response: Three comments were received on the subject of external as opposed to internal exams. Internally administered exams are allowed only if an external exam for that test method is not available. The current format of external exams covers a group of related test methods. If a QI desires to be certified for a particular test method and that test method is part of an external exam for a group of methods, that QI must take that external exam. An individual that has been qualified with an internal exam must re-qualify with an external exam within three years of the availability of an external exam or when a re-test is required, whichever is sooner. The ASTM D 7036-04 workgroup (in part, made up of small and large stack test companies) confirmed that, in general, an external exam is a better indication of qualification than an internal exam. The Agency agrees with this view because an externally administered exam may be more impartial, provide exam questions that have been better vetted, and may be less subject to abuse than an internally developed and administered exam. 8. Posting Non-Compliant AETB Names Background In section 6.1.2(g) of Appendix A to Part 75, EPA proposed that if the Administrator finds that the information submitted to an affected source by an AETB under this section or the information requested by an affected source under this section is either incomplete or inaccurate, the Administrator could post the name of the offending AETB on Agency Web sites, and provide the AETB a description of the failures to be remedied. The AETB name would be removed from the EPA Web sites once the failures were remedied. Summary of Comments, Responses and Rule Changes Comment: Several commenters agreed with the concept of posting the name of an offending AETB on Agency Web sites. One commenter agreed that posting the names of offending AETBs on the EPA Web site would provide a deterrent for non-conformance with ASTM D7036-04 and generally agrees with this approach. However, the commenter asserted that paragraph 6.1.2(g) should be amended to ensure that an AETB is notified and has the opportunity to correct any deficiencies before the name is posted on the Web site. The commenter was also concerned about the responsiveness of EPA in updating this list once the AETB has provided EPA with the required information. Therefore, the commenter suggested that a requirement should be added for EPA to respond to an AETB's submittal within 30 days, indicating whether the submittal is sufficient to remedy the problem. If so, the name of the AETB would be removed from the list. If EPA failed to respond within 30 days, the submittal would be assumed to be sufficient to remedy the problem and the name is removed from the list. Another commenter requested that the determination of accuracy and completeness in section 6.1.2(g) be solely based on the provisions of ASTM D 7036-04. Response: EPA believes that the determination of accuracy and completeness should be based on ASTM D7036-04 and Part 75 taken together because Part 75 limits the application of ASTM D 7036-04 to only certain tests performed on part 75 sources. The Agency agrees that an AETB should have the opportunity to correct any deficiencies before its name is posted on the Web site and has therefore revised section 6.1.2(g) accordingly. If an owner or operator has requested information from an AETB and believes that the information provided by the AETB is either incomplete or inaccurate, the owner or operator may request the Administrator's assistance in remedying the alleged deficiencies. Upon such request, if the Administrator concurs that the information submitted to the source is either incomplete or inaccurate, the Administrator will provide the AETB a description of the deficiencies to be remedied. The Administrator's determination of completeness and accuracy of the information will be solely based on the provisions of ASTM D 7036-04 and this part. The Administrator may post the name of the offending AETB on Agency Web sites if, within 30 days of having provided the AETB a description of the deficiencies to be remedied, the AETB does not satisfactorily respond to the source and notify the Administrator of the response via electronic mail. The AETB need not submit the information it provides to the owner or operator to the Administrator, unless specifically requested by the Administrator. If after the AETB's name is posted, the Administrator determines that the AETB's response is sufficient, the AETB's name will be removed from the EPA Web sites. If, upon request by the Administrator, the AETB or the owner or operator provides to the Administrator any information identified as confidential business information (CBI), the Administrator will treat the information according to the provisions of 40 CFR part 2, subpart B. Note that the modifications to section 6.1.2(g) make section 6.1.2(h) redundant and it has been removed. C. Other Amendments 1. Compliance Dates for Units Adding New Stack or Control Device Background Section 75.4(e)(2) only applies to existing Acid Rain Program units that are building a new stack, or adding control equipment. EPA proposed to extend the provision to include both existing and new units. For a project involving both a new stack or flue and installation of add-on emission controls, EPA proposed to revise § 75.4(e)(2) to require that the compliance window for required CEMS certification and/or recertification and/or diagnostic tests start on the date that emissions first exit to the atmosphere through the new stack or flue. The end of the compliance window would be the 90th operating day or the 180th calendar day (whichever occurs first) after the start date. Summary of Comments, Responses and Rule Changes Comment: One commenter stated that the proposed revisions to § 75.4(e) are consistent with the original intent of the provision, which was to address compliance deadlines for units that must relocate, replace, or retest monitoring systems as a result of the addition of new controls, regardless of when the unit commenced construction. This commenter further stated that the provision was never intended to draw a distinction between “existing” units as that term is defined under § 72.2 and other units with previously certified monitoring systems. The commenter suggested that the addition of recertification and diagnostic tests also is consistent with EPA's intent and past implementation of the provision through guidance. However, the commenter objected to EPA's proposal to hold units that are constructing both a new stack and a control device to a single testing deadline based on use of the new stack. The commenter concluded that although most sources likely would try to meet the testing deadline under § 75.4(e) associated with the use of the new stack by timing the initial operation of the control device to coincide as closely as possible with the time that gases first exit to the atmosphere through the new stack, there is no valid reason for limiting an owner or operator to a single deadline or set of tests to validate data from the monitoring systems. Response: EPA agrees in part with the commenter. As noted above, § 75.4(e)(2), on its face, applies only to existing units (which are generally units commencing commercial operation before November 1, 1990 and serving a generator with a nameplate capacity greater than 25 MWe) and thus was not intended to cover new units. However, EPA agrees that it is appropriate to expand § 75.4(e)(2) to provide a similar approach for monitoring compliance deadlines and missing data substitution for new stack construction and add-on SO 2 or NO X control installation at both existing and new units and to cover recertification and diagnostic tests, in addition to the certification tests covered by the existing provision. In addition, EPA agrees that in cases where a project involves both new stack construction and installation of add-on SO 2 or NO X controls, the initial routing of flue gas through the new stack and the initial operation of an add-on control device ( i.e., when reagent is first injected) should, if necessary, be treated as two separate events, each of which is allotted a flexible 90 operating day/180 calendar day window to complete all required certification and/or recertification and/or diagnostic testing of the monitoring systems installed on the new stack. Two separate compliance windows may be needed in cases where there is a long interval of time between the starting dates of the two events. Therefore, a new paragraph, (e)(3), has been added to § 75.4(e) to allow for completion of CEMS certification and/or recertification and/or diagnostic testing requirements for both new stack construction and new add-on SO 2 or NO X controls either: (a) Within the window of time provided for new stack construction; or (b) within the separate window of time applicable to such event provided under § 75.4 (e)(1). EPA also revised § 75.4(e) to address the reporting of CEMS data, in cases where only one compliance window is used, and where both windows are used. Section 75.4(e)(2), as revised, addresses how to report emissions or flow rate data 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, until all required certification and/or recertification and/or diagnostic tests are successfully completed. For example, if section 2 of Appendix A to Part 75 requires two spans and ranges for the monitor that measures the pollutant being removed by the add-on SO 2 or NO X controls, certification of the high measurement scale is sufficient to initiate reporting of quality-assured data from that monitor. All data recorded on the certified high scale, including data that would ordinarily be required to be recorded on the low scale, may be reported as quality-assured for up to 60 unit or stack operating days after the first injection of reagent into the control device. Then, all required tests of the low measurement scale must be completed within the 90 operating day/180 calendar day compliance window of time associated with the first injection of reagent into the control device. EPA believes that it is appropriate to allow temporary reporting of data on a certified high measurement scale in the case of installing and operating new add-on SO 2 or NO X controls, primarily because it often takes several days or weeks to stabilize a new add-on emissions control device so that the desired percentage reduction in the SO 2 or NO X emission levels is consistently achieved. During this period of time (known as the “shakedown” period), a significant percentage of the data from the SO 2 or NO X monitor (as applicable) is likely to be too high to be read on the low scale. Further, even data that can be recorded on the low scale during the shakedown period cannot be reported as quality-assured, because a RATA must be performed on the low scale in order to certify it, and this test cannot be done until the control device has been stabilized. The Agency believes that accepting low readings recorded on a certified high scale for a short period of time will not adversely impact the overall accuracy of the emissions data. Other certified CEMS that have only one (high) measurement scale record data on the lower part of the scale during short-term events such as startup and shutdown, and these data are accepted as quality-assured. Revised § 75.4(e)(2)(ii) allows conditional data validation procedures in § 75.20(b)(3) to be used for the entire 90 operating day/180 calendar day window associated with new stack construction or addition of a new emissions control device, rather than limiting the amount of time available to complete the required testing to the shorter timelines in § 75.20(b)(3)(iv). This is appropriate for new stack construction because the monitoring systems on the new stack are brand new systems that must undergo certification testing. The provisions of § 75.20(b)(3) and sections 6.3.1(a), 6.3.2(a), 6.6.4(a), and 6.5(f) of Appendix A to Part 75 clearly allow conditional data validation to be used for the entire window of time specified in § 75.4, for the initial certification of monitoring systems. For the installation and operation of add-on emissions controls, it is also appropriate to allow the use of conditional data validation for the entire 90 operating day/180 calendar day window, because instability during the shakedown period prevents the required RATAs associated with the control device addition from being done during that time period, and the shakedown period often extends beyond the shorter conditional data validation timelines provided in § 75.20(b)(3)(iv). A new paragraph, (e)(4), has also been added to § 75.4(e) to address special requirements that apply, in addition to the requirements in paragraph (e)(2), to a project involving both a new stack and a new add-on SO 2 or NO X control device. For such a project, the emissions data recorded by each CEMS on the new stack, starting on the date and hour on which emissions first exit to the atmosphere through the new stack and ending on the hour before the date and hour on which reagent is first injected into the control device, may be reported as quality assured (as provided in paragraph (e)(2)(ii) and (iv)) only if (1) a RATA of the CEMS (as described in paragraph (e)(4)(i)(A) or (ii)(A), depending on the CEMS involved) is successfully completed either prior to the first injection of reagent into the control device or in a period after the first injection when the control device is not operating; and (2) the rest of the required certification tests are successfully completed within the 90 operating day/180 calendar day compliance window that begins with the initial routing of flue gas through the new stack. For example, if the certification testing is done this way and conditional data validation is used in accordance with paragraph (e)(2)(ii), the CEMS data may be reported as quality- assured, starting at the hour of the probationary calibration error test, provided that all of the major tests are passed in sequence, with no failures. The RATA must be performed prior to the initial injection of reagent into the control device, or in a period after the first injection when the control device is not operating, because the characteristics of the stack gas matrix ( e.g., gas concentrations, temperature, moisture content, and concentration and flow profiles) when the control device is brought on-line will differ significantly from the stack characteristics of the uncontrolled unit. Therefore, to validate CEMS data in the uncontrolled time period between the first use of the new stack and the initial injection of reagent, a RATA that represents the actual stack conditions during that time interval must be performed and passed. The other, required certification tests, i.e., 7-day calibration error tests, cycle time tests, and linearity checks, are not affected by the characteristics of the stack gas matrix, and can be performed at any time during the allotted window of time, whether or not reagent is being injected. Of course, under § 75.4(e)(2), to the extent additional testing requirements are triggered by the installation of the new add-on SO 2 or NO X controls in a project involving both a new stack and such new controls, these tests must be successfully completed during the 90 unit operating day/180 calendar day window that begins with the initial injection of reagent. Note that EPA intends to revise Questions 15.4, 15.6, and 15.7 in the “Part 75 Emissions Monitoring Policy Manual” to be consistent with today's revisions to § 75.4(e). 2. Reference Method 7E Background EPA proposed to add § 75.22(a)(5)(v) to disallow multiple sampling runs to be conducted before performing the post-run system bias check or system calibration error check described in section 8.5 of EPA Reference Method 7E (40 CFR part 60, Appendix A-4), when this method is used to perform testing on part 75 affected sources. Summary of Comments and Responses Comment: One commenter thought that although drift corrections at some point may become less accurate following multiple runs, it is not significant enough to require a post-run check after every run. A requirement to perform a post run bias or system calibration error check after every three runs would be sufficient to ensure accurate drift corrections without needlessly adding to the length of the test. EPA should limit the number of runs allowed before performing a post-run check to three, rather than prohibiting multiple runs altogether. Two other commenters stated that Method 7E already requires all test runs conducted since the previous bias check to be invalidated if the subsequent bias check reveals drift in excess of the required specification. These commenters further stated that invalidation of multiple test runs would extend the duration of the test period, leading to additional expense and potential operational difficulties ( i.e., billing of additional hours by the test contractor, overtime for plant employees responsible for monitoring the testing, continuing to run the unit at the specified operating level rather than releasing the unit back to load control, and in some cases continuing to run the unit solely for the purpose of conducting the required test). According to the commenters, the potential for invalidation of multiple test runs is enough of a deterrent to discourage the use of equipment and/or testing firms that would have difficulty meeting the applicable bias and drift specifications. These two commenters also thought that the ability to validate multiple runs with one pair of bias and drift checks is of great value to facilities that are required to conduct both RATA and compliance tests. The ability through this provision to combine RATA and compliance testing reduces the overall amount of time required for testing and is of value to the industry as it prevents additional expense and potential operational difficulties. The commenters thought that the existing provision does not complicate the bias and drift correction calculations. Once these calculations are programmed into a spreadsheet, they are easy to apply. The commenters stated that EPA has not provided any substantive evidence for its reasoning that less accurate results will occur other than the statement that “less accurate gas concentration measurements are likely to result” (75 FR 33400). Finally, the commenters asserted that EPA should provide field evidence which shows that less accurate results have occurred as a result of this less time-consuming procedure before it proceeds with any rulemaking on this issue. Response: No rule changes were required. The Agency understands that under an existing provision of Method 7E, multiple test runs may be quality assured for bias and drift as a group, rather than individually. This provision allows the user to conduct bias and drift checks only at the beginning and end of a series of test runs, rather than conducting these checks before and after each individual run. The rationale is that if the tester can pass the quality assurance at the beginning and end of the series of runs, then the intermediate runs must be valid, and the quality of the reference method data has not been compromised. However this assumption is not necessarily true; therefore, multiple runs should not be allowed between bias and drift checks, as further explained in the response to the next comment, immediately below. Comment: Two commenters favor allowing 63 minutes of continuous sampling time between bias and drift checks. According to the commenters, sampling for 63 consecutive minutes at a time is desirable because 63 minutes corresponds to the time needed to perform three 21-minute runs of a CEMS relative accuracy test audit (RATA) and also is long enough to obtain a complete compliance test ( i.e., stack test) run. Compliance tests often consist of three one-hour runs, and many sources have both RATA requirements and compliance test requirements. The commenters favor eliminating the bias and drift checks after each RATA run because it reduces the amount of time required to perform the testing. Response: No rule changes were required. Generally speaking, it is good practice to perform emission testing in the most efficient manner possible without sacrificing data quality. However, EPA believes that the added assurance of data quality provided by performing bias and drift checks after each 21-minute RATA run far outweighs the small amount of time that could be saved by skipping the intermediate QA checks. Further, there is no reason why three 21-minute RATA runs cannot be averaged together to make one 63-minute compliance test run. For typical compliance test applications of the method where the user is only concerned with showing compliance with an emissions limit, the accuracy of the individual test runs is not as essential as it is for Part 75 applications. The Agency does not object to the change made to Method 7E when the method is used for compliance test applications. Since the average of all test runs is used to assess compliance, the run-by-run percent inaccuracies due to changing bias and drift over the course of the testing will tend to cancel, resulting in acceptable overall average that is only slightly different from the average value that would have been obtained had the more stringent run-by-run quality assurance procedures been followed. Thus, for compliance testing purposes, the commenters are correct in asserting that little is gained from performing the quality assurance testing before and after each run, so long as the overall specifications for bias and drift are met at the beginning and end of each test series. However, under Part 75 the reference method measurements are generally used for a very different purpose and the inaccuracy that can be introduced by not following the run-by-run quality assurance is unacceptable. For Part 75, the reference methods are primarily used to directly assess the accuracy of a continuous emissions monitoring system on a run-by-run basis. The purpose of the relative accuracy test audits (RATA) is to conduct at least nine quality-assured independent reference measurements and compare those measurements to nine simultaneous measurements made by a continuous emissions monitoring system in its normal mode of operation. Since each run directly compares CEMS measurements to reference method measurements, any drift in the reference monitor during the course of the run must be assessed and accounted for. Method 7E provides a means of adjusting the reference method measurements for moderate drift (less than 3.0% of the span gas value over the course of a run). This correction is intended to tie the resulting reference value more closely to the EPA Protocol calibration gas standards which are traceable to the National Institute of Standards and Technology (NIST). The correction assumes that over the duration of the test run, the profile of any drift observed is linear. The longer the interval between bias/drift checks, the less likely it is that this linear approximation will hold true. Because the RATA is intended to compare nine independent, quality-assured reference measurements to nine simultaneous measurements from a CEMS, EPA finds that performing a bias and drift evaluation before and after a series of runs increases the uncertainty in the individual run measurements and has the potential to introduce error that would otherwise be eliminated by performing the bias and drift evaluation before and after each run. EPA believes that mass-based regulatory programs, such as the trading programs supported by Part 75 monitoring, need the added assurance of data quality provided by run-by-run bias and drift evaluations. The run-by-run quality assurance is consistent with Method 7E as it was originally written, and avoids the risk of adding bias and uncertainty to the CEMS data through the RATA process. EPA does not collect the actual reference method test data for Method 7E electronically in a manner that can be further analyzed. Therefore, we cannot properly assess how reducing the number of required bias and drift checks will impact data quality. We have no way of knowing how many test runs that should be invalidated would be assumed to be valid if we were to allow bias and drift checks to be done only before and after a series of runs. However, we do know that we can avoid that issue entirely by requiring the quality assurance checks to be performed before and after each run for part 75 applications. In summary, EPA maintains that in view of the way that Method 7E data are used in the part 75 programs, run-by-run system bias and drift checks are necessary to eliminate measurement error that would otherwise be introduced by not quality-assuring each run individually. This QA approach also applies to Method 6C (the instrumental reference method for SO 2 ) and to Method 3A (the instrumental method for O 2 and CO 2 ), when those methods are used for part 75 applications. For a more detailed discussion of this issue, refer to the Response to Comments document. 3. Removal of Mercury Provisions Background As a result of the Clean Air Mercury Rule (CAMR) having been vacated by the DC Circuit in New Jersey v. EPA, 517 F.3d 574 (D.C. Cir. 2008), EPA proposed to remove provisions of part 75 that were adopted in support of CAMR. To achieve this, sections dealing exclusively with mercury monitoring (CEMS and sorbent trap systems) would be removed, and other sections that applied both to mercury monitoring systems and other types of CEMS would be revised and re-promulgated, minus the references to mercury. Summary of Comments, Responses and Rule Changes Comment: One commenter found two provisions not included in EPA's proposal that should be re-promulgated because the portions referencing mercury (Hg) monitoring were vacated in CAMR. The provisions in question are found at § 75.53(e)(1)(iv), which refers to reporting of information on Hg monitors and sorbent trap monitoring systems, and § 75.53(e)(1)(x), which refers to information on each stack using an Hg component monitor. Although the Hg portions of these provisions are no longer in effect, to be consistent with the other proposed revisions and to avoid confusion, the commenter stated that EPA should revise and re-promulgate these provisions again without the references to Hg. The commenter also requested that EPA ensure that these requirements are removed from the electronic data reporting format, schema, and instructions. Response: The proposed rule revisions that would remove all references to mercury (Hg) monitoring from Part 75 have been finalized without modification. However, the commenter has correctly identified two references to Hg monitoring in § 75.53(e) which EPA apparently overlooked. In addition, the Agency has identified a third reference in § 75.53(e) and one other reference in § 75.57 that were inadvertently overlooked. Section 75.53(e)(1)(i)(E) refers to Hg emission controls, and Method of Determination Code (MODC) “15” in Table 4a in § 75.57 refers to “Hg concentration”. The final rule removes all four of these references to Hg monitoring from part 75. All references to Hg monitoring and reporting have also been removed from the “ECMPS Reporting Instructions” ( see the June 17, 2009 version and September 16, 2009 addendum, which are posted on the Clean Air Markets Division Web site at the following address: http://www.epa.gov/airmarkets/business/ecmps/reporting-instructions.html. However, certain schema elements had already been incorporated by the time of the court vacatur of CAMR, ( e.g., the record, which indicates whether elemental or oxidized mercury standards are used for daily calibration). EPA continues to affirm that it is unnecessary to remove such records from the reporting format (or schema) since there are no requirements to use these fields or any of the mercury specific codes. As such these records are essentially vestigial and need not be revised. Finally, note that minor changes have been made to a few of the rule sections in which the Hg monitoring provisions were found. These changes were described under “Miscellaneous Corrections and Additions” in the preamble to the proposed rule, and have been finalized without modification. 4. Miscellaneous Amendments EPA proposed to revise the Incorporation by Reference section 75.6(f)(3) to add Section 3—Small Volume Provers, First Edition, but inadvertently omitted the publication date, and failed to revise section 2.1.5.1 of appendix D to part 75 to include Section 3 in the American Petroleum Institute (API) Manual of Petroleum Measurement Standards citation. The final rule includes the Section 3 publication dates of July 1988, reaffirmed Oct 1993, and includes Section 3 in the API citation in section 2.1.5.1 of appendix D to part 75. EPA has added definitions in section 72.2 for “Coverage Factor k” and “Expanded Uncertainty”. These definitions are consistent with the language used by the National Institute of Standards and Technology. 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 the Executive Order. B. Paperwork Reduction Act The information collection requirements in this rule have been submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The information collection requirements are not enforceable until OMB approves them. The Information Collection Request (ICR) document prepared by EPA has been assigned EPA ICR number 2203.04. The currently approved Information Collection Request (ICR) document prepared by EPA reflects the January 24, 2008 rule (EPA ICR Number 2203.02; OMB No.: 2060-0626). (OMB control numbers for EPA regulations are listed in 40 CFR part 9.) The information requirements covered by EPA ICR Number 2203.04 reflect the revisions to the requirements in 40 CFR Parts 72, and 75 that are being finalized in this action. Basic information on the identity of EPA Protocol gas production sites and on the type of cylinders used by sources subject to part 75 will be collected by the Agency. These data will allow the Agency to verify that a source subject to part 75 is using EPA Protocol gases from EPA Protocol gas production sites that are participating in the Protocol Gas Verification Program (PGVP), and to inform the gas cylinder selection for the PGVP audits. This same type of information will be collected when EPA Protocol gases are used to perform certain EPA test methods. The Agency anticipates that this will help improve the quality of results when these test methods are used. EPA has added simple recordkeeping and reporting requirements to enable the Agency to verify that Qualified Individuals and Air Emission Testing Bodies meet the requirements of this rule. EPA maintains that the main costs for air emission testing bodies to comply with the minimum competency requirements in ASTM D7036-04 are associated with taking qualified individual (QI) competency exams, and the development and revision of quality assurance manuals. The costs will be passed through to the customers (sources subject to part 75, primarily large electric utility and industrial companies), and the Agency notes that these costs will be partially offset by the savings generated by fewer failed or incorrectly performed relative accuracy test audits (RATAs), and fewer repeat tests required. EPA is also requiring certain recordkeeping and reporting provisions for various data elements that were inadvertently left out of the August 22, 2006 proposed rule and the January 24, 2008 final rule. These data elements have already been incorporated in the data acquisition and handling systems of units subject to part 75, and are required to make EPA's new reporting software data requirements consistent with the regulatory requirements. All of the above data collections are mandatory under 40 CFR part 75. None of the data are considered confidential business information under 40 CFR part 2, subpart B. EPA received several comments that the costs were underestimated in the ICR and that more supporting detail was needed. The Agency has revised the ICR for the final rule to include (a) 600 hours of contractor time in Agency costs to account for ECMPS software changes, (b) additional one time DAHS upgrade respondent costs of $378,500, and (c) additional supporting detail. The final rule does not significantly change the existing requirements in 40 CFR parts 72, and 75 and thus does not significantly change the existing information collection burden. The total annual respondent burden is estimated to be 2,254 hours, with total annual labor and O&M costs estimated to be $1,460,489. This estimate includes the burden associated with the increase in fees from AETBs and PGVP vendors resulting from their compliance with the new requirements in the rule as well as the small labor burden for sources to review the new requirements and comply with the modified recordkeeping and reporting requirements ( See Exhibits 1 and 2). Burden is defined at 5 CFR 1320.3(b). The respondent burden for this collection of information is estimated to be a small fraction of both the 124,976 labor hours, and the $8,581,420 total cost that were calculated for the existing supporting statement (ICR 2203.02) for revisions to 40 CFR parts 72 and 75. Most of these costs are expected to be borne by the private sector and will be passed through to the customers (sources subject to part 75, primarily large electric utility and industrial companies, or the rate payers). The Agency notes that some of the overall cost will be offset by the savings generated by fewer failed or incorrectly performed daily calibration error tests, quarterly linearity checks, and relative accuracy test audits (RATAs), and fewer repeat tests required. Exhibits 1 and 2 summarize the respondent burden and cost estimates performed for the ICR (2203.04) supporting statement for revisions to 40 CFR parts 72 and 75. EPA estimates that: (a) 1,249 ARP sources and 253 additional CAIR sources will need to review the revised requirements and comply with the modified reporting requirements; and (b) 3,736 ARP sources and 777 additional CAIR sources will need to perform quality assurance testing and maintenance tasks. Low mass emissions units will not have to modify their DAHS, and sources with only new units already have their initial startup burdens and costs accounted for in the underlying program ICRs. Exhibit 1 shows the total burden and total cost based on this respondent universe. Exhibit 1—Increased Respondent Burden/Cost (Labor Only) Estimates Related to Revisions of 40 CFR Parts 72 and 75 Information collection activity Mean hourly rate Hours per activity/ year Number of respondents (facilities) Respondent hours/year Total labor cost/year ARP Respondents One Time Rule Review $80.71/Hr 1 1,249 1,249 $100,807 ARP Respondents Compliance with Modified Reporting Requirements $80.71/Hr 0.5 1,249 624.5 50,444 CAIR Respondents One Time Rule Review $80.71/Hr 1 253 253 20,420 CAIR Respondents Compliance with Modified Reporting Requirements $80.71/Hr 0.5 253 126.5 10,210 Total 1,502 2,254 181,881 Exhibit 2—Increased Respondent Burden/Cost (QA and Maintenance) Estimates Related to Revisions of 40 CFR Parts 72 and 75 Information collection activity Previously established cont./O&M cost Increased cont./O&M cost per respondent Number of respondents (units) Increased total cost/year ARP Perform QA Testing and Maintenance Model A (CEMS) $31,949 $319 1,046 $333,674 Model C (App D—NO X CEM) 17,818 178 2,107 375,046 Model D (App D and E) 1,843 19 438 8,322 Model E (LME) 1,991 20 145 2,900 One Time DAHS Upgrade 1 500 631 315,500 CAIR Perform QA Testing and Maintenance • Non ARP Sources in PM/O 3 and PM Only States: —Solid Fuel: SO 2 , NO X , and Flow CEMS (units) 31,200 312 102 31,824 —Gas-Oil: NO X CEMS and App D (units) 17,400 174 493 85,782 —Gas-Oil Peaking Units: App D, App E, or LME methods (units) 1,800 18 150 2,700 One Time DAHS Upgrade 1 500 119 59,500 • Non ARP Sources in O 3 Only States: —Solid Fuel: SO 2 , NO X , and Flow CEMS (units) 20,800 208 4 832 —Gas-Oil: NO X CEMS and App D (units) 17, 400 174 28 4,872 One Time DAHS Upgrade 1 500 7 3,500 —Gas-Oil Peaking Units: App D, App E, or LME methods (units) 1,800 18 0 0 PGVP Increased Costs ($2 per cylinder at an assumed average of 6 cylinders per year) 12 4,513 54,156 Total 1,278,608 1 To calculate the number of units required to perform a DAHS upgrade, it was assumed that 80% of applicable CEMS units would be covered by an existing service contract and not subject to the annualized $1500 fee. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9. When this ICR is approved by OMB, the Agency will publish a technical amendment to 40 CFR part 9 in the Federal Register to display the OMB control number for the approved information collection requirements contained in this final rule. 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 results in an estimated 1169 facilities. This data is 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. In contrast the average respondent costs burden for this rule was determined to be $972.36 per year, which is considerably less than one percent of the estimated average revenue stream per entity. All of the 620 small entities except for one had respondent costs that were less than one percent of the estimated revenue stream. After considering the economic impacts of today's rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. All but one of the 620 small electric utilities directly affected by this final rule are expected to experience costs that are well under one percent of their estimated revenues. The rule revisions represent minor changes to existing monitoring requirements under part 75. There will be some small level of annual costs to participate in a gas audit program, taking a qualified stack test individual competency exam and developing or revising a quality assurance manual, and a slight up-front cost to reprogram existing electronic data reporting software used under Part 75. The Agency notes that these costs will be partially offset by the savings generated by fewer failed or incorrectly performed daily calibration error tests, quarterly linearity checks, and relative accuracy test audits (RATAs), and fewer repeat tests required. 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 2,254 hours, with total annual labor and O&M costs estimated to be $1,460,489. This estimate includes the burden associated with the increase in fees from AETBs and PGVP vendors resulting from their compliance with the new requirements in the rule as well as the small labor burden for sources to review the new requirements and comply with the modified recordkeeping and reporting requirements ( See Exhibits 1 and 2). The respondent burden for this collection of information is estimated to be a small fraction of both the 124,976 labor hours, and the $8,581,420 total cost that were calculated for the existing supporting statement (ICR 2203.02) for revisions to 40 CFR parts 72 and 75. The costs incurred by AETBs and PGVP vendors will be passed through to their customers (sources subject to Part 75, primarily large electric utility and industrial companies, or the rate payers). The Agency notes that much of the costs will be offset by the savings generated by fewer failed or incorrectly performed daily calibration error tests, quarterly linearity checks, and relative accuracy test audits (RATAs), and fewer repeat tests required. 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. E. Executive Order 13132: Federalism This final 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 final rule primarily amends the Protocol Gas Verification Program, and the minimum competency requirements for air emission testing (first promulgated on January 24, 2008 ( See 73 FR 4340, 4364, and 4365)) by having specialty gas company funds go to the National Institute of Standards and Technology, who has statutory authority to receive such funds, to fund gas cylinder analyses, by changing the rule language to rely on certain documentation provided at the time of stack testing as sufficient proof of validity of test data that otherwise meets the requirements of Part 75, by adding simple recordkeeping/reporting requirements, and by extending relevant compliance deadlines. Thus, Executive Order 13132 does not apply to this final rule. F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments This final rule does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). This final rule primarily amends the Protocol Gas Verification Program, and the minimum competency requirements for air emission testing (first promulgated on January 24, 2008 ( See 73 FR 4340, 4364, and 4365)) by having specialty gas company funds go to the National Institute of Standards and Technology, who has statutory authority to receive such funds, to fund gas cylinder analyses, by changing the rule language to rely on certain documentation provided at the time of stack testing as sufficient proof of validity of test data that otherwise meets the requirements of part 75, by adding simple recordkeeping/reporting requirements, and by extending relevant compliance deadlines. Thus, Executive Order 13175 does not apply to this final rule. 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 final 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 involves technical standards. Therefore, the Agency conducted a search to identify potentially applicable voluntary consensus standards. The Agency found an applicable voluntary consensus standard, ASTM D 7036-04, Standard Practice for Competence of Air Emission Testing Bodies, for use with the air emission testing body provisions of the final rule. However, EPA could not identify any applicable voluntary consensus standard for the Protocol Gas Verification Program. Therefore, for the PGVP, EPA has decided to use “EPA Traceability Protocol for Assay and Certification of Gaseous Calibration Standards,” September 1997, as amended August 25, 1999, EPA-600/R-97/121 or such revised procedure as approved by the Administrator. 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 final 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. This final rule primarily amends the Protocol Gas Verification Program, and the minimum competency requirements for air emission testing (first promulgated on January 24, 2008 ( See 73 FR 4340, 4364, and 4365)) by having specialty gas company funds go to the National Institute of Standards and Technology, who has statutory authority to receive such funds, to fund gas cylinder analyses, by changing the rule language to rely on certain documentation provided at the time of stack testing as sufficient proof of validity of test data that otherwise meets the requirements of Part 75, by adding simple recordkeeping/reporting requirements, and by extending relevant compliance deadlines. K. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 et seq., as a [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2011-6216. Public record. Not legal advice.