[Federal Register: September 21, 2006 (Volume 71, Number 183)]
[Rules and Regulations]
[Page 55119-55128]
[DOCID:fr21se06-8]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51 and 60

[EPA-OAR-2004-0510; FRL-8221-4]
RIN 2060-AF83

Methods for Measurement of Visible Emissions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This action finalizes Methods 203A, 203B, and 203C for
determining visible emissions using data reduction procedures that are
more appropriate for State Implementation Plan (SIP) rules than Method
9, the method currently used. This action was requested by the States
and is needed for the special data reduction requirements in their
rules. The intended effect is to provide States with an expanded array
of data reduction procedures for determining compliance with their SIP
opacity regulations.
    In addition, this action amends various testing provisions in the
New Source Performance Standards (NSPS) to correct inadvertent errors
and amend a testing provision.

DATES: This final rule is effective on September 21, 2006.

ADDRESSES: EPA has established a docket for this action under Docket ID
No. OAR-2004-0510. All documents in the docket are listed on the http://www.regulations.gov
 Web site. 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, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically through http://www.regulations.gov
 or in hard copy at the Air and Radiation Docket,

Docket ID No. OAR-2004-0510, EPA Docket Center (EPA/DC), EPA West, Room
B102, 1301 Constitution Ave., 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<PHONE_NUMBER>, and the telephone number for the Air and
Radiation Docket is<PHONE_NUMBER>.

FOR FURTHER INFORMATION CONTACT: Robin Segall, Measurement Technology
Group (E143-02), Air Quality Assessment Division, EPA, Research
Triangle Park, North Carolina 27711; telephone<PHONE_NUMBER>; fax
number<PHONE_NUMBER>; electronic mail address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    Categories and entities potentially regulated by the final rule
include the following:

      Table 1.--Major Entities Potentially Affected by This Action
------------------------------------------------------------------------
     Examples of regulated entities          SIC codes      NAICS codes
------------------------------------------------------------------------
Fossil Fuel Steam Generators............            4931          221112
Industrial, Commercial, Institutional               4961           22133
 Steam Generating Units.................
Electric Generating.....................            4911          221119
Portland Cement Plants..................            3241          327310
Petroleum Refineries....................            2911          324110
Hot Mix Asphalt Facilities..............            2951          324121
Kraft Pulp Mills........................            2611            3221
Municipal Solid Waste...................            4953          562213

Secondary Lead Smelters.................            3341          331492
Secondary Brass and Bronze Production               3351          331421
 Plants.................................
Basic Oxidation Process Furnaces........            3312          331111
Sewage Treatment Plants.................            4952          221320
Coal Preparation Plants.................            1221          212111
Ferroalloy Production Facilities........            3313          331112
Electric Arc Furnaces...................            3312          331111
Glass Manufacturing Plants..............            3211          327211
Grain Elevators.........................            0111          111141
Lime Manufacturing Plants...............            2812          325181
Metallic Mineral Processing Plants......            1011          212210
Non-Metallic Mineral Processing Plants..            1411          212311
Phosphate Rock Plants...................            1475          212392
Ammonium Sulfate Manufacturing                      2873          325311
 Facilities.............................
Asphalt Processing......................            2952         3244122
Asphalt Roofing Manufacturing...........            2952          324122
Calciners and Dryers in Mineral                     1479          212393
 Industries.............................
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected by this
action. This table lists examples of the types of entities EPA is now
aware could potentially be affected by the final rule. Other types of
entities not listed could also be affected. If you have any questions
regarding the applicability of this action to a particular entity,
consult the person listed in the preceding FOR FURTHER INFORMATION
CONTACT section.

B. How can I access electronic copies of this document and other
related information?

    In addition to being available in the docket, an electronic copy of
today's final rule will also be available on the Worldwide Web (WWW)
through the Technology Transfer Network (TTN). Following the
Administrator's signature, a copy of the final rule will be placed 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.

C. Judicial Review

    Under Section 307(b)(1) of the Clean Air Act (CAA), judicial review
of the final rule is available only by filing a petition for review in
the U.S. Court of Appeals for the District of Columbia Circuit by
November 20, 2006. Under Section 307(d)(7)(B) of the CAA, only an
objection to the final rule that was raised with reasonable specificity
during the period for public comment can be raised during judicial
review. Under CAA section 307(b)(2), the requirements established by
the final rule may not be challenged later in civil or criminal
proceedings brought by EPA to enforce these requirements.

D. Outline

    The information presented in this preamble is organized as follows:

I. General Information
    A. Does this action apply to me?
    B. How can I access electronic copies of this document and other
related information?
    C. Judicial Review
    D. Outline
II. Background and Summary of Proposed Rule
III. Response to Comments
    A. Stringency of Current Standards Not Affected
    B. Four Readings Not a Reliable Data Sample
IV. Changes to the Proposed Rule
    A. Performance Results Added to the Methods
    B. 15-Second Interval Option Removed From Method 203C
V. Summary of Amendments to the NSPS
    A. Petroleum Refineries (Subpart J)
    B. Kraft Pulp Mills (Subpart BB)
    C. Municipal Solid Waste Landfills (Subpart WWW)
    D. Performance Specification 2, Appendix B of Part 60
VI. 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

II. Background and Summary of Proposed Rule

    In 1974, Method 9 of Appendix A to 40 CFR part 60 was revised. In
the preamble to that rule, we recognized that the Method 9 data
reduction techniques were not appropriate for some types of State
implementation plan (SIP) opacity regulations. The preamble also stated
the Agency's intent to propose procedures to enforce SIP limitations
that were not adequately addressed by Method 9. Such SIP limitations
included those with time-exception provisions (a specified number of
minutes in an hour in which the opacity limit may be exceeded), as well
as those that specify averaging times other than the 6 minutes
advocated by Method 9. Also, Method 9 did not address data reduction
procedures for instantaneous opacity limitations which are included in
some SIP. In order to provide appropriate data reduction procedures for
opacity limits that differ from Method 9, we proposed new test
procedures for evaluating compliance with opacity standards in 1986.
    The 1986 proposal contained field and observer certification
procedures identical to those of Method 9, the only difference being
the data reduction procedures for determining compliance with SIP
regulations that contained time-exception, time-averaged, and
instantaneous limitations. The 1986 proposal indicated that we would
select the visible emission test method and data reduction procedures
that best ensured enforcement of the SIP opacity standard in a manner
consistent with the original language in the federally-

approved or promulgated SIP. We also proposed procedures for analyzing
fugitive dust.
    Between this 1986 proposal and the proposal of Methods 203A, B, and
C in 1993, technical work continued in several areas. We completed a
collaborative study of the effect of shorter observation intervals, and
we developed several implementation tools, including a revised sample
visible emissions observation (VEO) form to assist States in specifying
the appropriate test method for the opacity limit proposed in the SIP
or SIP revision.
    The proposal of Methods 203A, B, and C divided the procedures
proposed in 1986 into three distinct methods, allowing a State to
specify the exact data reduction procedures to be used in compliance
determinations. The three methods incorporated the certification
procedures for observers from Method 9 without change. The only
procedural differences between Methods 203A, B, and C and Method 9 are
in the provisions for recording observations and data reduction.
    Since the 1993 proposal of Methods 203A, B, and C, we are not aware
of any new methods or changes to existing methods that would lead to
substantial changes in our approach. Therefore, with one exception, we
believe it is appropriate to complete this action with the changes
noted in the preamble. We are not taking final action at this time with
regard to procedures for fugitive dust.

III. Responses to Comments

A. Stringency of Current Standards Not Affected

    The most frequent comment concerned the possibility of current
regulations being affected by these new methods. Examples of these
concerns are: (1) Method 203B would increase the stringency of current
time-exception regulations, (2) Methods 203A, B, and C would displace
Tennessee's four federally approved visible emission methods, and (3)
decreasing the averaging time demands an increase in the level of the
standard.
    Methods 203A, B, and C are not retroactive; they do not apply to
existing regulations. Methods 203A, 203B, and 203C are example methods
for States to use in developing their SIP regulations. The addition of
these methods to Appendix M of Part 51 will increase the number of
opacity methods available to the State and will not affect the
stringency of any existing standard.
    A comment regarding the data reduction procedures of Method 203B
expressed a similar concern. Some current time-exception methods count
the number of 1-minute averages that are over the maximum opacity
specified. The sum of 1-minute averages must not exceed the number of
exception-minutes specified in the applicable standard. Method 203B
contains slightly different data reduction procedures in which the
readings are not averaged, but each reading is viewed as a 15-second
block of time. The number of readings above the specified opacity limit
is multiplied by 0.25 resulting in the total number of minutes during
which the maximum opacity level is exceeded. Method 203B is a slightly
more stringent procedure than summing 1-minute averages. As mentioned
above, Methods 203A, B, and C are not retroactive and the stringency of
visible emission procedures need to be taken into account when the new
or revised emission limits are developed.

B. Four Readings Not a Reliable Data Sample

    We proposed two options when using Method 203C: Averaging four 15-
second readings or averaging twelve 5-second readings. One commenter
stated that four 15-second readings were not sufficient for Method
203C. Upon further review and examination of the data, we agree with
the commenter and have eliminated the four 15-second reading option.
Only the second option, averaging twelve 5-second readings, is
prescribed in Method 203C.
    We also received comments on the proposed procedures for fugitive
dust. However, because we are not taking final action on these
procedures at this time, we are not responding to the comments here.

IV. Changes to Proposed Methods 203A, B, and C

A. Performance Results Added to the Methods

    The error associated with each method has been summarized from
various field studies and is presented in Section 13 of each method.

B. 15-Second Interval Option Removed From Method 203C

    The proposed option to use four 15-second readings for
instantaneous limitation regulations has been removed from Method 203C.
Twelve 5-second readings will be used when Method 203C is specified for
instantaneous regulations.

V. Summary of Amendments to the NSPS

    Technical amendments are being made to 40 CFR Part 60 to correct
existing errors in Subparts J, BB, and Appendix B and to amend a
testing requirement in Subpart http://WWW. These technical amendments were

proposed in the Federal Register on August 5, 2005 (70 FR 45608). No
comments were received from the public concerning these amendments.

A. Petroleum Refineries (Subpart J)

    In Sec.  60.106(b)(3) of the petroleum refinery NSPS, the equation
for determining the coke burn-off rate is being corrected.

B. Kraft Pulp Mills (Subpart BB)

    In Sec.  60.284 of the kraft pulp mills NSPS, an inadvertent
paragraph requiring that continuous emission monitors be subject to the
quality assurance provisions of Appendix F is being deleted.

C. Municipal Solid Waste Landfills (Subpart WWW)

    In Sec.  60.752(b)(2)(iii)(A) of the municipal solid waste landfill
NSPS, open flares are required to comply with the general flare
provisions of Sec.  60.18. In these provisions, the heat content of the
flare gas is determined from an analysis of its organic compound and
hydrogen content using Methods 18 and ASTM D1946, respectively. Methane
is the primary organic compound of significance in landfill gas, and
hydrogen is not likely to be present. Method 3C is easier to use than
Method 18 and has a more appropriate measurement range for the methane
levels encountered at landfills. In addition, Method 3C determines
oxygen and nitrogen which are needed to determine the flare gas exit
velocity. In the past, sources have requested and received permission
to used Method 3C in place of Methods 18 and ASTM D1946 under this
rule. This amendment makes Method 3C the required test method for
methane and removes the requirement to measure hydrogen by ASTM D1946.

D. Performance Specification 2, Appendix B of Part 60

    In Performance Specification 2, an inadvertent omission in an
October 17, 2000 amendment removed an allowance for low-emitters when
conducting relative accuracy tests. This amendment reinstates the
allowance.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735 October 4, 1993), the
Agency must determine whether the regulatory

action is ``significant'' and therefore subject to OMB review and the
requirements of the Executive Order. The Order defines ``significant
regulatory action'' as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, Local, or Tribal governments or
communities; (2) create a serious inconsistency or otherwise interfere
with an action taken or planned by another agency; (3) materially alter
the budgetary impact of entitlements, grants, user fees, or loan
programs, or the rights and obligations of recipients thereof; or (4)
raise novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in the Executive
Order.
    We have determined that this rule is not a ``significant regulatory
action'' under the terms of Executive Order 12866 and is therefore not
subject to OMB review. We have determined that this regulation would
result in none of the economic effects set forth in Section 1 of the
Order because it does not impose emission measurement requirements
beyond those specified in the current regulations, nor does it change
any emission standard.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
The new test methods do not add information collection requirements
beyond what is currently mandated.
    Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
    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.

C. Regulatory Flexibility Act

    EPA has determined that it is not necessary to prepare a regulatory
flexibility analysis in connection with this final rule.
    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 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; and (3) a small organization that is any not-for-
profit enterprise which is independently owned and operated and is not
dominant in its field. Entities potentially affected by this action
include those listed in Table 1 of SUPPLEMENTARY INFORMATION.
    After considering the economic impacts of today's final rule on
small entities, we have concluded that this action will not have a
significant economic impact on a substantial number of small entities.
This final rule will not impose any requirements on small entities.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub.
L. 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
    Today's rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, local, or tribal
governments or the private sector. The rule imposes no enforceable duty
on any State, local, or tribal governments or the private sector. In
any event, EPA has determined that 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. Thus, today's rule is not subject to the
requirements of Sections 202 and 205 of the UMRA.
    EPA has determined that this rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. This rule simply makes available alternative data
reduction procedures that States can use at their discretion under
their SIP opacity regulations.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' are defined in the
Executive Order to include regulations that 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.''
    This rule does not have federalism implications. It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132. Thus, Executive Order 13132 does
not apply to this rule.

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

    Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This final rule does not have
tribal implications as specified in Executive Order 13175. It will not
have substantial direct effects on tribal governments, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175. In
this final rule, we are simply adding test methods at the request of
the States to increase the flexibility in testing for opacity of
emissions. Thus, Executive Order 13175 does not apply to this rule.

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

    Executive Order 13045 applies to any rule that: (1) Is determined
to be ``economically significant'' as defined under Executive Order
12866, and (2) concerns an environmental health or safety risk that EPA
has reason to believe may have a disproportionate effect on children.
If the regulatory action meets both criteria, the Agency must evaluate
the environmental health or safety effects of the planned rule on
children and explain why the planned regulation is preferable to other
potentially effective and reasonably feasible alternatives considered
by the Agency.
    The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that are based on health or safety risks, such that
the analysis required under section 5-501 of the Order has the
potential to influence the regulation. This rule is not subject to
Executive Order 13045 because it is based on technology performance and
not on health or safety risks.

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

    This action is not subject to Executive Order 13211, ``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 and 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), directs
EPA to use voluntary consensus standards (VCS) 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, business practices, etc.) that are developed or adopted by
VCS bodies. The NTTAA requires EPA to provide Congress, through OMB,
explanations when the Agency decides not to use available and
applicable VCS. During this rulemaking, we identified no VCS that might
be applicable. Specifically, there were none that addressed opacity
data reduction provisions differently than what currently exists in
Method 9 of 40 CFR Part 60, Appendix A.

J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations

    Executive Order 12848 (58 FR 7629, February 11, 1994) requires that
each Federal agency make achieving environmental justice part of its
mission by identifying and addressing, as appropriate,
disproportionately high and adverse human health or environmental
effects of its programs, policies, and activities on minorities and
low-income populations. This rule contains optional test procedures
that do not place disproportionate human health or environmental
effects of minority or low-income populations.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. The EPA will submit a report containing this rule and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after its publication in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective.

List of Subjects in 40 CFR Parts 51 and 60

    Administrative practice and procedure, Air pollution control,
Carbon monoxide, Continuous emission monitors, Environmental
protection, Intergovernmental relations, Lead, New sources, Nitrogen
dioxide, Ozone, Particulate matter, Performance specifications,
Reporting and recordkeeping requirements, Sulfur oxides, Test methods
and procedures, Volatile organic compounds.

    Dated: September 14, 2006.
Stephen L. Johnson,
Administrator.

0
For the reasons stated in the preamble, title 40, chapter I, of the
Code of Federal Regulations is amended as follows:

PART 51--[AMENDED]

0
1. The authority citation for part 51 continues to read as follows:

    Authority: 23 U.S.C. 101; 42 U.S.C. 7401-7671q.

0
2. Appendix M is amended by numerically adding the following method
titles at the beginning of Appendix M and by numerically adding Methods
203A, 203B, and 203C as follows:

Appendix M to Part 51--Recommended Test Methods for State
Implementation Plans

* * * * *
    Method 203A--Visual Determination of Opacity of Emissions from
Stationary Sources for Time-Averaged Regulations.
    Method 203B--Visual Determination of Opacity of Emissions from
Stationary Sources for Time-Exception Regulations.
    Method 203C--Visual Determination of Opacity of Emissions from
Stationary Sources for Instantaneous Regulations.
* * * * *

Method 203A--Visual Determination of Opacity of Emissions from
Stationary Sources for Time-Averaged Regulations

1.0 Scope and Application

What is Method 203A?

    Method 203A is an example test method suitable for State
Implementation Plans (SIP) and is applicable to the determination of
the opacity of emissions from sources of visible emissions for time-
averaged regulations. A time-averaged regulation is any regulation
that requires averaging visible emission data to determine the
opacity of visible emissions over a specific time period.
    Method 203A is virtually identical to EPA's Method 9 of 40 CFR
Part 60, Appendix A, except for the data-reduction procedures, which
provide for averaging times other than 6 minutes. Therefore, using
Method 203A with a 6-minute averaging time would be the same as
following EPA Method 9. The certification procedures for this method
are

identical to those provided in Method 9 and are provided here, in
full, for clarity and convenience. An example visible emission
observation form and instructions for its use can be found in
reference 7 of Section 17 of Method 9.

2.0 Summary of Method

    The opacity of emissions from sources of visible emissions is
determined visually by an observer certified according to the
procedures in Section 10 of this method. Readings taken every 15
seconds are averaged over a time period specified in the applicable
regulation ranging from 2 minutes to 6 minutes.

3.0 Definitions [Reserved]

4.0 Interferences [Reserved]

5.0 Safety [Reserved]

6.0 Equipment and Supplies

What equipment and supplies are needed?

    6.1 Stop Watch. Two watches are required that provide a
continuous display of time to the nearest second.
    6.2 Compass (optional). A compass is useful for determining the
direction of the emission point from the spot where the visible
emissions (VE) observer stands and for determining the wind
direction at the source. For accurate readings, the compass should
be magnetic with resolution better than 10 degrees. It is suggested
that the compass be jewel-mounted and liquid-filled to dampen the
needle swing; map reading compasses are excellent.
    6.3 Range Finder (optional). Range finders determine distances
from the observer to the emission point. The instrument should
measure a distance of 1000 meters with a minimum accuracy of < plus-
minus>10 percent.
    6.4 Abney Level (optional). This device for determining the
vertical viewing angle should measure within 5 degrees.
    6.5 Sling Psychrometer (optional). In case of the formation of a
steam plume, a wet- and dry-bulb thermometer, accurate to 0.5
[deg]C, are mounted on a sturdy assembly and swung rapidly in the
air in order to determine the relative humidity.
    6.6 Binoculars (optional). Binoculars are recommended to help
identify stacks and to characterize the plume. An 8 x 50 or 10 x 50
magnification, color-corrected coated lenses and rectilinear field
of view is recommended.
    6.7 Camera (optional). A camera is often used to document the
emissions before and after the actual opacity determination.
    6.8 Safety Equipment. The following safety equipment, which
should be approved by the Occupational Safety and Health Association
(OSHA), is recommended: orange or yellow hard hat, eye and ear
protection, and steel-toed safety boots.
    6.9 Clipboard and Accessories (optional). A clipboard, several
ball-point pens (black ink recommended), a rubber band, and several
visible emission observation forms facilitate documentation.

7.0 Reagents and Standards (Reserved]

8.0 Sample Collection, Preservation, Storage, and Transport

What is the Test Procedure?

    An observer qualified in accordance with Section 10 of this
method must use the following procedures to visually determine the
opacity of emissions from stationary sources.
    8.1 Procedure for Emissions from Stacks. These procedures are
applicable for visually determining the opacity of stack emissions
by a qualified observer.
    8.1.1 Position. You must stand at a distance sufficient to
provide a clear view of the emissions with the sun oriented in the
140-degree sector to your back. Consistent with maintaining the
above requirement as much as possible, you must make opacity
observations from a position such that the line of vision is
approximately perpendicular to the plume direction, and when
observing opacity of emissions from rectangular outlets (e.g., roof
monitors, open baghouses, non-circular stacks), approximately
perpendicular to the longer axis of the outlet. You should not
include more than one plume in the line of sight at a time when
multiple plumes are involved and, in any case, make opacity
observations with the line of sight perpendicular to the longer axis
of such a set of multiple stacks (e.g., stub stacks on baghouses).
    8.1.2 Field Records. You must record the name of the plant,
emission location, type of facility, observer's name and
affiliation, a sketch of the observer's position relative to the
source, and the date on a field data sheet. An example visible
emission observation form can be found in reference 7 of Section 17
of this method. You must record the time, estimated distance to the
emission location, approximate wind direction, estimated wind speed,
description of the sky condition (presence and color of clouds), and
plume background on the field data sheet at the time opacity
readings are initiated and completed.
    8.1.3 Observations. You must make opacity observations at the
point of greatest opacity in that portion of the plume where
condensed water vapor is not present. Do not look continuously at
the plume but, instead, observe the plume momentarily at 15-second
intervals.
    <IP_ADDRESS> Attached Steam Plumes. When condensed water vapor is
present within the plume as it emerges from the emission outlet, you
must make opacity observations beyond the point in the plume at
which condensed water vapor is no longer visible. You must record
the approximate distance from the emission outlet to the point in
the plume at which the observations are made.
    <IP_ADDRESS> Detached Steam Plumes. When water vapor in the plume
condenses and becomes visible at a distinct distance from the
emission outlet, you must make the opacity observation at the
emission outlet prior to the condensation of water vapor and the
formation of the steam plume.
    8.2 Recording Observations. You must record the opacity
observations to the nearest 5 percent every 15 seconds on an
observational record sheet such as the example visible emission
observation form in reference 7 of Section 17 of this method. Each
observation recorded represents the average opacity of emissions for
a 15-second period. The overall length of time for which
observations are recorded must be appropriate to the averaging time
specified in the applicable regulation.

9.0 Quality Control [Reserved]

10.0 Calibration and Standardization

    10.1 What are the Certification Requirements? To receive
certification as a qualified observer, you must be trained and
knowledgeable on the procedures in Section 8.0 of this method, be
tested and demonstrate the ability to assign opacity readings in 5
percent increments to 25 different black plumes and 25 different
white plumes, with an error not to exceed 15 percent opacity on any
one reading and an average error not to exceed 7.5 percent opacity
in each category. You must be tested according to the procedures
described in Section 10.2 of this method. Any smoke generator used
pursuant to Section 10.2 of this method must be equipped with a
smoke meter which meets the requirements of Section 10.3 of this
method. Certification tests that do not meet the requirements of
Sections 10.2 and 10.3 of this method are not valid.
    The certification must be valid for a period of 6 months, and
after each 6-month period, the qualification procedures must be
repeated by an observer in order to retain certification.
    10.2 What is the Certification Procedure? The certification test
consists of showing the candidate a complete run of 50 plumes, 25
black plumes and 25 white plumes, generated by a smoke generator.
Plumes must be presented in random order within each set of 25 black
and 25 white plumes. The candidate assigns an opacity value to each
plume and records the observation on a suitable form. At the
completion of each run of 50 readings, the score of the candidate is
determined. If a candidate fails to qualify, the complete run of 50
readings must be repeated in any retest. The smoke test may be
administered as part of a smoke school or training program, and may
be preceded by training or familiarization runs of the smoke
generator during which candidates are shown black and white plumes
of known opacity.
    10.3 Smoke Generator.
    10.3.1 What are the Smoke Generator Specifications? Any smoke
generator used for the purpose of Section 10.2 of this method must
be equipped with a smoke meter installed to measure opacity across
the diameter of the smoke generator stack. The smoke meter output
must display in-stack opacity, based upon a path length equal to the
stack exit diameter on a full 0 to 100 percent chart recorder scale.
The smoke meter optical design and performance must meet the
specifications shown in Table 203A-1 of this method. The smoke meter
must be calibrated as prescribed in Section 10.3.2 of this method
prior to conducting each smoke reading test. At the completion of
each test, the zero and span drift must be checked and, if the drift
exceeds  1 percent opacity, the condition must be
corrected prior to conducting any subsequent test runs. The smoke
meter must be demonstrated at

the time of installation to meet the specifications listed in Table
203A-1 of this method. This demonstration must be repeated following
any subsequent repair or replacement of the photocell or associated
electronic circuitry including the chart recorder or output meter,
or every 6 months, whichever occurs first.
    10.3.2 How is the Smoke Meter Calibrated? The smoke meter is
calibrated after allowing a minimum of 30 minutes warm-up by
alternately producing simulated opacity of 0 percent and 100
percent. When a stable response at 0 percent or 100 percent is
noted, the smoke meter is adjusted to produce an output of 0 percent
or 100 percent, as appropriate. This calibration must be repeated
until stable 0 percent and 100 percent readings are produced without
adjustment. Simulated 0 percent and 100 percent opacity values may
be produced by alternately switching the power to the light source
on and off while the smoke generator is not producing smoke.
    10.3.3 How is the Smoke Meter Evaluated? The smoke meter design
and performance are to be evaluated as follows:
    <IP_ADDRESS> Light Source. You must verify from manufacturer's data
and from voltage measurements made at the lamp, as installed, that
the lamp is operated within 5 percent of the nominal rated voltage.
    <IP_ADDRESS> Spectral Response of the Photocell. You must verify
from manufacturer's data that the photocell has a photopic response;
i.e., the spectral sensitivity of the cell must closely approximate
the standard spectral-luminosity curve for photopic vision which is
referenced in (b) of Table 203A-1 of this method.
    <IP_ADDRESS> Angle of View. You must check construction geometry to
ensure that the total angle of view of the smoke plume, as seen by
the photocell, does not exceed 15 degrees. Calculate the total angle
of view as follows:

[phis]v = 2 tan-1 (d/2L)

Where:

[phis]v = Total angle of view
d = The photocell diameter + the diameter of the limiting aperture
L = Distance from the photocell to the limiting aperture.

The limiting aperture is the point in the path between the photocell
and the smoke plume where the angle of view is most restricted. In
smoke generator smoke meters, this is normally an orifice plate.
    <IP_ADDRESS> Angle of Projection. You must check construction
geometry to ensure that the total angle of projection of the lamp on
the smoke plume does not exceed 15 degrees. Calculate the total
angle of projection as follows:

[phis]p = 2 tan-1 (d/2L)

Where:

[phis]p = Total angle of projection
d = The sum of the length of the lamp filament + the diameter of the
limiting aperture
L = The distance from the lamp to the limiting aperture.

    <IP_ADDRESS> Calibration Error. Using neutral-density filters of
known opacity, you must check the error between the actual response
and the theoretical linear response of the smoke meter. This check
is accomplished by first calibrating the smoke meter according to
Section 10.3.2 of this method and then inserting a series of three
neutral-density filters of nominal opacity of 20, 50, and 75 percent
in the smoke meter path length. Use filters calibrated within 2
percent. Care should be taken when inserting the filters to prevent
stray light from affecting the meter. Make a total of five non-
consecutive readings for each filter. The maximum opacity error on
any one reading shall be 3 percent.
    <IP_ADDRESS> Zero and Span Drift. Determine the zero and span drift
by calibrating and operating the smoke generator in a normal manner
over a 1-hour period. The drift is measured by checking the zero and
span at the end of this period.
    <IP_ADDRESS> Response Time. Determine the response time by producing
the series of five simulated 0 percent and 100 percent opacity
values and observing the time required to reach stable response.
Opacity values of 0 percent and 100 percent may be simulated by
alternately switching the power to the light source off and on while
the smoke generator is not operating.

11.0 Analytical Procedures [Reserved]

12.0 Data Analysis and Calculations

    12.1 Time-Averaged Regulations. A set of observations is
composed of an appropriate number of consecutive observations
determined by the averaging time specified (i.e., 8 observations for
a two minute average). Divide the recorded observations into sets of
appropriate time lengths for the specified averaging time. Sets must
consist of consecutive observations; however, observations
immediately preceding and following interrupted observations shall
be deemed consecutive. Sets need not be consecutive in time and in
no case shall two sets overlap. For each set of observations,
calculate the average opacity by summing the opacity readings taken
over the appropriate time period and dividing by the number of
readings. For example, for a 2-minute average, eight consecutive
readings would be averaged by adding the eight readings and dividing
by eight.

13.0 Method Performance

    13.1 Time-averaging Performances. The accuracy of test
procedures for time-averaged regulations was evaluated through field
studies that compare the opacity readings to a transmissometer.
Analysis of these data shows that, as the time interval for
averaging increases, the positive error decreases. For example, over
a 2-minute time period, 90 percent of the results underestimated
opacity or overestimated opacity by less than 9.5 percent opacity,
while over a 6-minute time period, 90 percent of the data have less
than a 7.5 percent positive error. Overall, the field studies
demonstrated a negative bias. Over a 2-minute time period, 57
percent of the data have zero or negative error, and over a 6-minute
time period, 58 percent of the data have zero or negative error.
This means that observers are more likely to assign opacity values
that are below, rather than above, the actual opacity value.
Consequently, a larger percentage of noncompliance periods will be
reported as compliant periods rather than compliant periods reported
as violations. Table 203A-2 highlights the precision data results
from the June 1985 report: ``Opacity Errors for Averaging and Non
Averaging Data Reduction and Reporting Techniques.''

14.0 Pollution Prevention [Reserved]

15.0 Waste Management [Reserved]

16.0 Alternative Procedures [Reserved]

17.0 References

    1. U.S. Environmental Protection Agency. Standards of
Performance for New Stationary Sources; Appendix A; Method 9 for
Visual Determination of the Opacity of Emissions from Stationary
Sources. Final Rule. 39 FR 219. Washington, DC. U.S. Government
Printing Office. November 12, 1974.
    2. Office of Air and Radiation. ``Quality Assurance Guideline
for Visible Emission Training Programs.'' EPA-600/S4-83-011. Quality
Assurance Division. Research Triangle Park, NC. May 1982.
    3. Office of Research and Development. ``Method 9--Visible
Determination of the Opacity of Emissions from Stationary Sources.''
February 1984. Quality Assurance Handbook for Air Pollution
Measurement Systems. Volume III, Section 3.1.2. Stationary Source
Specific Methods. EPA-600-4-77-027b. August 1977. Office of Research
and Development Publications, 26 West Clair Street, Cincinnati, OH.
    4. Office of Air Quality Planning and Standards. ``Opacity Error
for Averaging and Non-averaging Data Reduction and Reporting
Techniques.'' Final Report-SR-1-6-85. Emission Measurement Branch,
Research Triangle Park, NC. June 1985.
    5. U.S. Environmental Protection Agency. Preparation, Adoption,
and Submittal of State Implementation Plans. Methods for Measurement
of PM10 Emissions from Stationary Sources. Final Rule.
Federal Register. Washington, DC. U.S. Government Printing Office.
Volume 55, No. 74. Pages 14246-14279. April 17, 1990.
    6. Office of Air Quality Planning and Standards. ``Collaborative
Study of Opacity Observations of Fugitive Emissions from Unpaved
Roads by Certified Observers.'' Emission Measurement Branch,
Research Triangle Park, NC. October 1986.
    7. Office of Air Quality Planning and Standards. ``Field Data
Forms and Instructions for EPA Methods 203A, 203B, and 203C.'' EPA
455/R-93-005. Stationary Source Compliance Division, Washington, DC,
June 1993.

18.0 Tables, Diagrams, Flowcharts, and Validation Data

    Table 203A-1.--Smoke Meter Design and Performance Specifications
------------------------------------------------------------------------
               Parameter                          Specification
------------------------------------------------------------------------
a. Light Source........................   Incandescent lamp operated at
                                          nominal rated voltage.
b. Spectral response of photocell......  Photopic (daylight spectral
                                          response of the human eye--
                                          Citation 3).
c. Angle of view.......................  15[deg] maximum total angle.
d. Angle of projection.................  15[deg] maximum total angle.
e. Calibration error...................  3% opacity,
                                          maximum.
f. Zero and span drift.................  1% opacity, 30
                                          minutes
g. Response time.......................   5 seconds.
------------------------------------------------------------------------

                          Table 203A-2.--Precision Between Observers: Opacity Averaging
----------------------------------------------------------------------------------------------------------------
                                                                                Standard       Amount with
                        Averaging period                             Number of     deviation  (%   < 7.5% opacity
                                                                   observations      opacity)       difference
----------------------------------------------------------------------------------------------------------------
15-second.......................................................         140,250             3.4              87
2 minutes.......................................................          17,694             2.6              92
3 minutes.......................................................          11,836             2.4              92
6 minutes.......................................................           5,954             2.1              93
----------------------------------------------------------------------------------------------------------------

Method 203B--Visual Determination of Opacity of Emissions From
Stationary Sources for Time-Exception Regulations

1.0 Scope and Application

What is Method 203B?

    Method 203B is an example test method suitable for State
Implementation Plans (SIPs) and is applicable to the determination
of the opacity of emissions from sources of visible emissions for
time-exception regulations. A time-exception regulation means any
regulation that allows predefined periods of opacity above the
otherwise applicable opacity limit (e.g., allowing exceedances of 20
percent opacity for 3 minutes in 1 hour.)
    Method 203B is virtually identical to EPA's Method 9 of 40 CFR
part 60, Appendix A, except for the data-reduction procedures, which
have been modified to apply to time-exception regulations. The
certification procedures for this method are identical to those
provided in Method 9. An example of a visible emission observation
form and instructions for its use can be found in reference 7 of
Section 17 of Method 203A.

2.0 Summary of Method

    The opacity of emissions from sources of visible emissions is
determined visually by a qualified observer.

3.0 Definitions [Reserved]

4.0 Interferences [Reserved]

5.0 Safety [Reserved]

6.0 Equipment and Supplies

What equipment and supplies are needed?

    The same as specified in Section 6.0 of Method 203A.

7.0 Reagents and Standards [Reserved]

8.0 Sample Collection, Preservation, Storage, and Transport

What is the Test Procedure?

    The observer qualified in accordance with Section 10 of Method
203A must use the following procedures for visually determining the
opacity of emissions.
    8.1 Procedures for Emissions From Stationary Sources. The
procedures for emissions from stationary sources are the same as
specified in 8.1 of Method 203A.
    8.2 Recording Observations. You must record opacity observations
to the nearest 5 percent at 15-second intervals on an observational
record sheet. Each observation recorded represents the average
opacity of emissions for a 15-second period. The overall length of
time for which observations are recorded must be appropriate to the
applicable regulation.

9.0 Quality Control [Reserved]

10.0 Calibration and Standardization

    The Calibration and Standardization requirements are the same as
specified in Section 10 of Method 203A.

11.0 Analytical Procedures [Reserved]

12.0 Data Analysis and Calculations

    Data Reduction for Time-Exception Regulations. For a time-
exception regulation, reduce opacity observations as follows: Count
the number of observations above the applicable standard and
multiply that number by 0.25 to determine the minutes of emissions
above the target opacity.

13.0 Method Performance

    13.1 Time-Exception Regulations. ``Opacity Errors for Averaging
and Non-Averaging Data Reduction and Reporting Techniques'' analyzed
the time errors associated with false compliance or false non-
compliance determinations resulting from a sample of 1110 opacity
readings with 6-minute observation periods. The study applied a 20
percent opacity standard. Fifty-one percent of the data showed zero
error in time determinations. The standard deviation was 97.5
seconds for the 6-minute time period.
    13.1.1 Overall, the study showed a negative bias. Each reading
is associated with a 15-second block of time. The readings were
multiplied by 15 seconds and the resulting time spent above the
standard was compared to the transmissometer results. The average
amount of time that observations deviated from the transmissometer's
determinations was -8.3 seconds. Seventy percent of the time
determinations were either correct or underestimated the time of
excess emissions. Consequently, a larger percentage of noncompliance
periods would be reported as compliant periods rather than compliant
periods reported as violations.
    13.1.2 Some time-exception regulations reduce the data by
averaging over 1-minute periods and then counting those minutes
above the standard. This data reduction procedure results in a less
stringent standard than determinations resulting from data reduction
procedures of Method 203B.

14.0 Pollution Prevention [Reserved]

15.0 Waste Management [Reserved]

16.0 Alternative Procedures [Reserved]

17.0 References

    The references are the same as specified in Section 17 of Method
203A.

18.0 Tables, Diagrams, Flowcharts, and Validation Data [Reserved]

Method 203C--Visual Determination of Opacity of Emissions From
Stationary Sources for Instantaneous Limitation Regulations

1.0 Scope and Application

What is Method 203C?

    Method 203C is an example test method suitable for State
Implementation Plans (SIPs) and is applicable to the determination
of the opacity of emissions from sources of visible emissions for
regulations with an instantaneous opacity limitation. An
instantaneous opacity limitation is an opacity limit which is never
to be exceeded.
    Method 203C is virtually identical to EPA's Method 9 of 40 CFR
Part 60, Appendix A, except for 5-second reading intervals and the
data-reduction procedures, which have been modified for
instantaneous limitation regulations. The certification procedures
for

this method are virtually identical to Method 9. An example visible
emission observation form and instructions for its use can be found
in reference 7 of Section 17 of Method 203A.

2.0 Summary of Method

    The opacity of emissions from sources of visible emissions is
determined visually by an observer certified according to the
procedures in Section 10 of Method 203A.

3.0 Definitions [Reserved]

4.0 Interferences [Reserved]

5.0 Safety [Reserved]

6.0 Equipment and Supplies

    The equipment and supplies used are the same as Section 6.0 of
Method 203A.

7.0 Reagents and Standards [Reserved]

8.0 Sample Collection, Preservation, Storage, and Transport

What is the Test Procedure?

    The qualified observer must use the following procedures for
visually determining the opacity of emissions.
    8.1 Procedures for Emissions From Stationary Sources. These are
the same as Section 8.1 of Method 203A.
    8.1.1 Position. Same as Section 8.1.1 of Method 203A.
    8.1.2 Field Records. Same as Section 8.1.2 of Method 203A.
    8.1.3 Observations. Make opacity observations at the point of
greatest opacity in that portion of the plume where condensed water
vapor is not present. Do not look continuously at the plume,
instead, observe the plume momentarily at 5-second intervals.
    <IP_ADDRESS> Attached Steam Plumes. Same as Section <IP_ADDRESS> of Method
203A.
    <IP_ADDRESS> Detached Steam Plumes. Same as Section <IP_ADDRESS> of Method
203A.
    8.2 Recording Observations. You must record opacity observations
to the nearest 5 percent at 5-second intervals on an observational
record sheet. Each observation recorded represents the average of
emissions for the 5-second period. The overall time for which
recordings are made must be of a length appropriate to the
applicable regulation for which opacity is being measured.

9.0 Quality Control [Reserved]

10.0 Calibration and Standardization

    The calibration and standardization procedures are the same as
Section 10 of Method 203A.

11.0 Analytical Procedures [Reserved]

12.0 Data Analysis and Calculations

    12.1 Data Reduction for Instantaneous Limitation Regulations.
For an instantaneous limitation regulation, a 1-minute averaging
time will be used. You must divide the observations recorded on the
record sheet into sets of consecutive observations. A set is
composed of the consecutive observations made in 1 minute. Sets need
not be consecutive in time, and in no case must two sets overlap.
You must reduce opacity observations by dividing the sum of all
observations recorded in a set by the number of observations
recorded in each set.
    12.2 Reduce opacity observations by averaging 12 consecutive
observations recorded at 5-second intervals. Divide the observations
recorded on the record sheet into sets of 12 consecutive
observations. For each set of 12 observations, calculate the average
by summing the opacity of the 12 observations and dividing this sum
by 12.

13.0 Method Performance

    The results of the ``Collaborative Study of Opacity Observations
at Five-second Intervals by Certified Observers'' are almost
identical to those of previous studies of Method 9 observations
taken at 15-second intervals and indicate that observers can make
valid observations at 5-second intervals. The average difference of
all observations from the transmissometer values was 8.8 percent
opacity, which shows a fairly high negative bias. Underestimating
the opacity of the visible emissions is more likely than
overestimating the opacity of the emissions.

14.0 Pollution Prevention [Reserved]

15.0 Waste Management [Reserved]

16.0 Alternative Procedures [Reserved]

17.0 References

    The references are the same as references 1-7 in Method 203A in
addition to the following:
    1. Office of Air Quality Planning and Standards. ``Collaborative
Study of Opacity Observations at Five-second Intervals by Certified
Observers.'' Docket A-84-22, IV-A-2. Emission Measurement Branch,
Research Triangle Park, N.C. September 1990.

18.0 Tables, Diagrams, Flowcharts, and Validation Data

* * * * *

PART 60--[AMENDED]

0
3. The authority citation for part 60 continues to read as follows:

    Authority: 42 U.S.C. 7401, 7411, 7413, 7414, 7416, 7601, and
7602.

0
4. Amend Sec.  60.106(b)(3) by revising the equation to read as
follows:

Sec.  60.106  Test methods and procedures.

* * * * *
    (b) * * *
    (3) * * *

Rc = K1Qr (%CO2 + %CO) +
K2Qa - K3Qr(%CO/2 +
%CO2 + %O2)
* * * * *

0
5. Revise Sec.  60.284(f) to read as follows:

Sec.  60.284  Monitoring of emissions and operations.

* * * * *
    (f) The procedures under Sec.  60.13 shall be followed for
installation, evaluation, and operation of the continuous monitoring
systems required under this section. All continuous monitoring systems
shall be operated in accordance with the applicable procedures under
Performance Specifications 1, 3, and 5 of appendix B of this part.

Sec.  60.752  [Amended]

0
6. Revise Sec.  60.752(b)(2)(iii)(A) to read as follows:

Sec.  60.752  Standards for air emissions from municipal solid waste
landfills.

* * * * *
    (b) * * *
    (2) * * *
    (iii) * * *
    (A) An open flare designed and operated in accordance with Sec.
60.18 except as noted in Sec.  60.754(e);
* * * * *

Sec.  60.754  [Amended]

0
7. Amend Sec.  60.754 by adding paragraph (e) to read as follows:

Sec.  60.754  Test Methods and Procedures.

* * * * *
    (e) For the performance test required in Sec.
60.752(b)(2)(iii)(A), the net heating value of the combusted landfill
gas as determined in Sec.  60.18(f)(3) is calculated from the
concentration of methane in the landfill gas as measured by Method 3C.
A minimum of three 30-minute Method 3C samples are determined. The
measurement of other organic components, hydrogen, and carbon monoxide
is not applicable. Method 3C may be used to determine the landfill gas
molecular weight for calculating the flare gas exit velocity under
Sec.  60.18(f)(4).

0
8. In Appendix A-7, Method 24 is amended by adding Section 6.7 to read
as follows:

Appendix A-7 to Part 60--Test Methods 19 Through 25E

* * * * *

Method 24--Determination of Volatile Matter Content, Water Content,
Density, Volume Solids, and Weight Solids of Surface Coatings

* * * * *
    6.7 ASTM D 6419-00, Test Method for Volatile Content of Sheet-
Fed and Coldset Web Offset Printing Inks.
* * * * *

0
9. In Appendix B, Performance Specification 2 is amended by adding a
sentence to the end of Section 13.2 to read as follows:

Appendix B to Part 60--Performance Specifications

* * * * *

Performance Specification 2--Specifications and Test Procedures for
SO2 and NOX Continuous Emission Monitoring
Systems in Stationary Sources

* * * * *
    13.2 * * * For SO2 emission standards of 130 to and
including 86 ng/J (0.30 and 0.20 lb/million Btu), inclusive, use 15
percent of the applicable standard; below 86 ng/J (0.20 lb/million
Btu), use 20 percent of the emission standard.
* * * * *

[FR Doc. 06-7907 Filed 9-20-06; 8:45 am]

BILLING CODE 6560-50-P


[Federal Register: April 29, 2008 (Volume 73, Number 83)]
[Notices]
[Page 23287-23290]
[DOCID:fr29ap08-116]

-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-57697; File No. SR-NYSEArca-2008-32]

Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing
of a Proposed Rule Change as Modified by Amendment No. 1 Thereto
Relating to the Minor Rule Plan

April 22, 2008.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on March 18, 2008, NYSE Arca, Inc. (``NYSE Arca'' or the ``Exchange'')
filed with the Securities and Exchange Commission (``Commission'') the
proposed rule change as described in Items I, II, and III below, which
Items have been substantially prepared by the Exchange. On April 17,
2008, the Exchange submitted Amendment No. 1 to the proposed rule
change. The Commission is publishing this notice to solicit comments on
the proposed rule change, as amended, from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    NYSE Arca through its wholly owned subsidiary, NYSE Arca Equities,
Inc. (``NYSE Arca Equities'' or the ``Corporation''), proposes to amend
Rule 10.12 (Minor Rule Plan) (``MRP'') and other related rules that
underlie the minor rules violations, including Rules

5.2(b)(1) (Applications to List), 6.1 (Adherence to Law), 6.15
(Miscellaneous Prohibitions), 6.18 (Supervision), and 9.2(c) (Customer
Records).
    The text of the proposed rule change is available at NYSE Arca's
principal office, the Commission's Public Reference Room, and http://
www.nyse.com.

II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, NYSE Arca included statements
concerning the purpose of, and basis for, the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below. The Exchange has prepared summaries, set forth in
Sections A, B, and C below, of the most significant aspects of such
statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Minor Rule Plan fosters compliance with applicable rules and
also helps to reduce the number and extent of rule violations committed
by ETP Holders and associated persons. The Corporation's enforcement
staff has found that the MRP is particularly useful in reducing both
the number and extent of rule violations because Rule 10.12 enables
staff to promptly impose a limited but meaningful financial penalty
soon after the violations are detected. The prompt imposition of a
financial penalty helps to quickly educate and improve the conduct of
ETP Holders who have engaged in inadvertent or otherwise minor
violations of the Corporation's rules, particularly those who may not
pay attention to mere warnings that they are violating Exchange rules.
By promptly imposing a meaningful financial penalty for such
violations, the MRP helps such ETP Holders focus on correcting their
conduct before it gives rise to more serious enforcement action.
    The last amendments to Rule 10.12 were approved in 2004.\3\ Since
then, new and altered patterns of activity by ETP Holders, as well as
numerous additions and amendments to other Exchange rules, have created
the need for numerous additions and updates to the MRP and underlying
rules, as described in greater detail below. The changes are designed
to update Rule 10.12 to encompass appropriate new types of violations,
as well as to update or otherwise correct existing MRP provisions and
further clarify the circumstances in which use of the MRP is
appropriate.
---------------------------------------------------------------------------

    \3\ See Securities Exchange Act Release No. 50356 (September 13,
2004), 69 FR 56259 (September 20, 2004) (SR-PCX-2004-29).
---------------------------------------------------------------------------

    The MRP will continue to be used for inadvertent and occasional
rule violations. Serious violations of Exchange rules will continue to
be addressed through formal enforcement action.

Rule 10.12--Minor Rule Plan

Rule 10.12(e)--Minor Rule Plan

    The Corporation proposes to clarify that any person or organization
found in violation of a minor rule under Rule 10.12 is not required to
report such violation on SEC Form BD or Form U-4.

Rule 10.12(f)--Minor Rule Plan

    The Corporation seeks to amend Rule 10.12(f) to remove the
provision stating that the Business Conduct Committee (``BCC'') shall
review ``each citation'' of the MRP citation. When the NYSE Arca equity
rules were first drafted based upon the NYSE Arca options rules, this
provision was not removed. The provision should have been removed
because there is no such concept of ``floor citations'' under the
equity rules. As a result, the Exchange seeks to correct 10.12(f) now
and remove the provision from the rule.

10.12(g)--Minor Rule Plan: Minor Trading Rule Violations; 10.12(h)--
Minor Rule Plan: Record Keeping and Other Minor Rule Violations

    The Corporation proposes to amend Rule 10.12(g) to add several
minor violations related to trading rule violations and subsection (h)
related to record keeping and other violations. Corporation staff
frequently encounters inadvertent or otherwise minor violations of
certain trading rules, including Rules 6.2(g), 6.15(b), 7.20(a),
7.23(a)(1), 7.29, 7.30, and 7.38(c), and certain recordkeeping and
other rules, including Rules 2.16(b), 2.21, 2.23, 2.24, 5.2(b)(1), 6.3,
6.17, 6.18, and 9.2. Such minor violations do not give rise to formal
enforcement action. However, staff believes that it can further enhance
compliance with these rules by imposing MRP fines, which will draw ETP
Holders' attention to the need for improved compliance by promptly
imposing meaningful but limited financial penalties for violations.

10.12(i)--Minor Rule Plan: Recommended Fine Schedule

    The Corporation proposes to change the procedure set forth in the
MRP fine schedules to escalate MRP fine levels in cases involving
multiple instances of the same offense. This change will enhance the
fair administration of the MRP in the context of higher speed and
volume of electronic trading on the NYSE Arca Marketplace.
    Currently, the MRP Recommended Fine Schedule sets forth an initial
MRP fine for a ``First Violation,'' as well as a higher level for a
``Second Violation'' and a still higher level for a ``Third
Violation.'' This escalation plan, which predates the widespread use of
electronic trading on the Exchange, has led to several difficulties
when applied to the much greater speed and volume of electronic
trading.
    First, while the fine escalation is meant to deter repeat offenses,
it often fails to deliver this effect, because Permit Holders engaged
in the high speed and volume of electronic trading can frequently incur
``second'' and ``third'' offenses before they are sanctioned or even
notified of the initial violation. For the same reason, these Permit
Holders complain that it is unfair for them to incur escalated fine
levels for second and third violations before they learn of their first
violations.
    Additionally, the current fine schedule does not allow an MRP
sanction for any more than three violations. In some cases, this is
appropriate, but in other cases, it makes sense to impose an MRP fine
for the fourth violation as for the first three. The MRP can best
assist the Exchange's regulatory and enforcement efforts if it provides
Exchange officials with discretion to determine how to address
particular instances of multiple violations, rather than implicitly
requiring formal enforcement action whenever there are more than three
violations.
    To address these concerns, the Exchange proposes to modify the
Recommended Fine Schedules in NYSE Arca Equities Rule 10.12(i) so that
MRP fines are escalated based not on the number of ``violations,'' but
upon the number of times the Exchange has imposed one or more MRP fines
upon a Permit Holder for the violation of a particular rule. The three
current column headers in the Fine Schedules that specify different
fine levels for first, second, and third ``violations'' will be
replaced with ``First Level,'' ``Second Level,'' and ``Third Level.''
    With this change, the Fine Schedule will continue to specify the
fine to be

imposed for each violation, but the first time a Permit Holder is fined
under the MRP for the violation of a given rule, the fine for each
violation will be imposed at the ``First Level,'' whether there is one
or more than one such violation.

Example

    Due to a systems breakdown that goes undiscovered for an entire
afternoon, an ETP Holder with no previous rules violations executes
three sell orders on the Exchange that are not properly labeled
``short,'' as required by NYSE Arca Equities Rule 7.16(b). Under the
current MRP Fine Schedule in NYSE Arca Equities Rule 10.12(i)(1), the
ETP Holder would be charged under the MRP with a first violation fine
of $500, as well as a second violation fine of $1,000, and a third
violation fine of $2,500, for a total MRP fine of $4,000. The
escalation for the second and third offenses would be imposed under the
current Fine Schedule even though all the violations occurred in the
same afternoon, and the second and third violations occurred before the
ETP Holder became aware of the first violation.
    By contrast, under the proposed Fine Schedule, the fines no longer
escalate based upon the number of offenses, but instead based on the
number of times the ETP Holder has been fined for the same offense.
Because the ETP Holder here had not previously been fined for
violations of Rule 7.16, the ETP Holder would receive the ``First
Level'' of $500 per violation for each of the three violations, for a
total MRP fine of $1,500.
    If the ETP Holder were later fined again under the MRP for more
such violations, the fine for each violation would then be $1,000.
    This proposed new procedure for escalating MRP fines is largely the
same as the escalation procedure specified by the New York Stock
Exchange in its ``List of Exchange Rule Violations and Fines'' for
imposing summary fines pursuant to NYSE Rule 476A.
    It will continue to be the case that nothing in the MRP will
require the imposition of a MRP fine when Exchange enforcement
officials believe that repeat violations or other aggravating factors
warrant formal enforcement action.

Other Changes to Rule 10.12(i)

    The fines for the proposed minor rule violations in subsections (g)
and (h) are reflected in the Recommended Fine Schedule in Rule
10.12(i). NYSE Arca Equities staff believes that the proposed fines are
fair in relation to the scope and occurrence of the MRP violation by an
ETP Holder.
    The Corporation has also proposed to amend Rule 10.12(i)(2) to
include a new footnote 2. Rule 2.21 (employee registration) requires
ETP Holders to pay certain fees to the Corporation. Footnote 2 permits
the Corporation to require violators of Rule 2.21 to remit all fees
that it should have paid to the Exchange pursuant to compliance with
Rule 2.21. The Corporation has based this proposed amendment upon a
similar provision of the Boston Stock Exchange's MRP for violation of
trade-through rules, which was recently approved by the Commission.\4\
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    \4\ See Securities Exchange Act Release No. 55606 (April 10,
2007), 72 FR 19221 (April 17, 2007) (approving SR-BSE-2006-11).
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    NYSE Arca Equities Rule 2.21 requires an ETP Holder to continually
disclose to the Corporation through the registration process the ETP
Holder's personnel who are responsible for trading decisions on behalf
of the ETP Holder. By requiring such disclosure, Rule 2.21, like the
trade-through rules, substantially protects the Corporation's ability
to regulate its marketplace and help ensure marketplace integrity.
Corporation staff proposes to include the back-payment of registration
fees in addition to a MRP fine so that the MRP can effectively deter
ETP Holders from trying to save money and effort by not registering
their appropriate personnel.
    In addition to the changes proposed to the MRP, the Corporation
also proposes the following related changes.

Rule 5.2(b)(1)--Notification Requirements for Offering of Securities

    The Corporation proposes amendments to correct a scrivener's error
that was inadvertently created when the NYSE Arca Rules were updated to
replace the obsolete term ``Member'' with the replacement term ``ETP
Holder.'' The intended reference in this rule, however, is to all
members of a syndicate, which is related to compliance with Regulation
M, so we propose to reinsert the correct term ``members.''

Rule 6.1--Adherence to Law and Good Business Practices

    The proposed rule change clarifies the language of the newly
designated Rule 6.1(a) by substituting the word ``just'' for ``fair.''
The Corporation proposes to adopt Rule 6.1(b) and make violations of
the rule eligible for MRP disposition. New subsection (b) to Rule 6.1
would require all ETP Holders, their associated persons, and other
participants to adhere to the principles of good business practice in
the conduct of their business operations. This Rule is patterned on the
current NYSE Rule 401(a). Like NYSE Rule 401(a), it encompasses
miscellaneous conduct that is inconsistent with the maintenance of a
fair and orderly marketplace or that otherwise violates good business
practices without also showing the bad faith or unethical conduct that
have been found to be essential elements of ``conduct inconsistent with
just and equitable principles of trade,'' as that standard has been
clarified in decisions such as In re. Calvin David Fox.\5\
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    \5\ See Securities Exchange Act Release No. 48731, 81 SEC Docket
1511-31 (October 31, 2003).
---------------------------------------------------------------------------

Rule 6.15--Miscellaneous Prohibitions

    The Corporation proposes to add a subsection (c) that will
expressly prohibit transactions in a security that involves no change
in beneficial ownership, commonly known as ``wash trades.'' This filing
also proposes to make violation of the wash trade prohibition eligible
for disposition through an MRP fine. Exchange Market Regulation has
observed a trend toward increasing amounts of wash trading. Much of
this trading may be unintentional or otherwise resulting from
circumstances that do not rise to the level of prearranged trading or
other purposeful market manipulation. However, even inadvertent wash
trading can create an exaggerated or otherwise false appearance of
trading activity in the affected securities. The Corporation proposes
to halt this trend by expressly prohibiting wash trading. By also
including this violation among those eligible for disposition through
MRP fines, Exchange Market Regulation and Enforcement will have the
flexibility to impose appropriate fine levels based upon the particular
circumstances of each individual case.

Rule 6.18--Supervision

    The Corporation proposes to amend Rule 6.18 to remove language that
limits the reach of its supervisory rules. The current language of Rule
6.18(b) provides that only ETP Holders for whom the Corporation is the
Designated Examining Authority (``DEA'') are subject to its supervisory
requirements. The amendment removes the language limiting the scope of
the rule so that all ETP Holders regardless of DEA are subject to
maintaining systems to supervise activities of their associated persons
and the operations of their businesses.
    As noted above, this filing also proposes to make minor violations
of

Rule 6.18 eligible for disposition through an MRP fine. Exchange Market
Regulation frequently encounters ``minor'' supervisory failures by
Permit Holders, i.e., supervisory failures whose consequences have not
yet risen to a level justifying formal enforcement action, but which
could have serious consequences if not remedied. By making such
failures eligible for MRP fines, Exchange Market Regulation and
Enforcement will have a greater ability to encourage ETP Holders to
correct their supervisory problems before they lead to more serious
violations.
    To further enhance the ability of the Exchange to use the MRP to
improve Permit Holder supervisory procedures and overall compliance on
a prospective basis, the filing proposes to add a new footnote 1 to the
MRP Fine Schedule that will allow Exchange enforcement staff, as part
of an MRP disposition of certain supervisory-related offenses, not only
to impose a monetary fine, but also to require the violator to make
specified changes to its supervisory or other compliance procedures.
This will enable Exchange enforcement staff to negotiate, as part of an
MRP disposition of a supervisory violation, a requirement that the
violator undertake certain remedial measures to ensure that such
violations do not recur, as is already done in some formal enforcement
actions for such offenses.

Rule 7.38(c)--Odd and Mixed Lots--Prohibitions

    The Corporation proposes to delete language in the current
subsection (c) of Rule 7.38 that presently defines all odd-lot
violations to be conduct inconsistent with just and equitable
principles of trade. The Corporation believes that this change keeps
Rule 7.38(c) consistent with current Commission caselaw because many
violations of Exchange odd-lot rules do not necessarily involve the bad
faith or unethical conduct, which has been determined to be required
for a finding of ``conduct inconsistent with just and equitable
principles of trade,'' as that standard has been clarified by the
Commission in decisions such as In re. Calvin David Fox.\6\ This and
other changes in this filing would also permit minor odd-lot violations
to be disposed of through the MRP.
---------------------------------------------------------------------------

    \6\ See id.
---------------------------------------------------------------------------

Rule 9.2(c)--Customer Records

    The Corporation proposes to change Rule 9.2(c) by adding the single
word ``current,'' to clarify and reiterate the obligation that firms
with customer accounts must not only keep records of their customer
accounts, but also keep them current.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with the provisions of Section 6 of the Act,\7\ in general, and with
Section 6(b)(5) of the Act,\8\ in particular, in that it is designed to
prevent fraudulent and manipulative acts and practices, to promote just
and equitable principles of trade, to remove impediments to a free and
open market and a national market system, and, in general, to protect
investors and the public interest.
---------------------------------------------------------------------------

    \7\ 15 U.S.C. 78f.
    \8\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change would
result in any burden on competition that is not necessary or
appropriate in furtherance of the purposes of the Act.

C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants or Others

    Written comments were neither solicited nor received.

III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action

    Within 35 days of the date of publication of this notice in the
Federal Register or within such longer period (i) as the Commission may
designate up to 90 days of such date if it finds such longer period to
be appropriate and publishes its reasons for so finding or (ii) as to
which Amex consents, the Commission will:
    A. By order approve such proposed rule change, or
    B. Institute proceedings to determine whether the proposed rule
change should be disapproved.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://
www.sec.gov/rules/sro.shtml); or
     Send an e-mail to<EMAIL_ADDRESS>Please include
File Number SR-NYSEArca-2008-32 on the subject line.

Paper Comments

     Send paper comments in triplicate to Nancy M. Morris,
Secretary, Securities and Exchange Commission, 100 F Street, NE.,
Washington, DC 20549-1090.
All submissions should refer to File Number SR-NYSEArca-2008-32. This
file number should be included on the subject line if e-mail is used.
To help the Commission process and review your comments more
efficiently, please use only one method. The Commission will post all
comments on the Commission's Internet Web site (http://www.sec.gov/
rules/sro.shtml). Copies of the submission, all subsequent amendments,
all written statements with respect to the proposed rule change that
are filed with the Commission, and all written communications relating
to the proposed rule change between the Commission and any person,
other than those that may be withheld from the public in accordance
with the provisions of 5 U.S.C. 552, will be available for inspection
and copying in the Commission's Public Reference Room, 100 F Street,
NE., Washington, DC 20549, on official business days between the hours
of 10 a.m. and 3 p.m. Copies of such filing also will be available for
inspection and copying at the principal office of NYSE Arca. All
comments received will be posted without change; the Commission does
not edit personal identifying information from submissions. You should
submit only information that you wish to make available publicly. All
submissions should refer to File Number SR-NYSEArca-2008-32 and should
be submitted on or before May 20, 2008.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\9\
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    \9\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
 [FR Doc. E8-9289 Filed 4-28-08; 8:45 am]

BILLING CODE 8010-01-P