From: Lemuel Walker/DC/USEPA/US
Date: 05/23/2012 07:07 AM
Subject: Two Questions Received on the Method Update Rule effective date
Question 1:I have received calls from several wastewater operators who would like to begin using the Hach Luminescence DO probe. Until now, facilities would have to apply for Limited Use of this probe through the Alternate Test Procedure process. (Illinois only grants use through ATP approval for Limited Use.)
A few operators think they can begin using the Hach DO probe immediately since the final rule has been signed and published in the Federal Register. They are using the “published date” as the start date.
Response: I interpret the wording of “effective date will be June 18, 2012” to mean these newly approved methods/technologies, such as the Hach probe, can begin being used on June 18, 2012. Therefore, between the dates of May 18, 2012-June 17, 2012, they would have to continue using the methods/technologies listed in the previous 40 CFR Part 136.
The Alternate Test Procedures (ATPs) such as Hach Method 10360 (luminescence DO probe) that are included in the final rule employ new technologies that have been evaluated and found to meet the requirements for compliance monitoring performed under the Clean Water Act. That is, the performance of these methods is substantially similar to that of the other methods approved at part 136 for measurement of the regulated parameters.
As with any federal regulatory action, EPA recognizes that immediate implementation on the date of publication is not practical. Therefore, EPA establishes an effective date for implementation in the published rule (e.g., June 18, 2012). This methods update rule specified a 30-day implementation date, but depending on the nature of the rulemaking, a later date may be used if EPA feels it is likely to take longer to implement a particular regulatory action.
In the case of our methods updates, the nature of rule adds new methods for monitoring compliance with existing discharge requirements, thus giving laboratories new method options from which to choose, and does not add new monitoring requirements. If a laboratory wishes to begin use of a new method included in the final rule to demonstrate compliance with a specific permit limit once the final rule is published, and if the authority that issued that permit agrees, then I think it would be following the spirit of the ATP program and intent of the final rule, which is to allow the use of these new technologies.
If the authority that issued the permit is unwilling to accept the results obtained from use of a method included in the final rule until the effective date and insists on the use of one of the other approved methods until the effective date listed in the FR notice, then technically they would have the right to do that. However, it is not clear to me what benefit the permitting authority would gain from that approach.
Question 2:Is there a date by which all method/technology use is required to be switched to the newly published final 40 CFR Part 136? Is there an acceptable transition period for laboratories to upgrade and apply for accreditation in updated methodologies?
I do not believe that there are any instances in which an updated method is requiring the use of a new technology that would require a laboratory to upgrade or purchase any new equipment. In all instances where an ATP or new method is being approved, there are other methods which were previously approved and are still approved. The methods that employ new technologies such as the luminescence DO probe are not replacing the older methods they are simply providing additional methods as options.