[Federal Register Volume 81, Number 48 (Friday, March 11, 2016)]
[Rules and Regulations]
[Pages 12799-12802]
[FR Doc No: 2016-05258]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. FAA-2016-4280; Directorate Identifier 2016-SW-008-AD;
Amendment 39-18429; AD 2016-05-11]
RIN 2120-AA64

Airworthiness Directives; Sikorsky Aircraft Corporation

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule; request for comments.

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SUMMARY: We are adopting a new airworthiness directive (AD) for
Sikorsky Aircraft Corporation (Sikorsky) Model S-92A helicopters. This
AD requires certain inspections of the main rotor and tail rotor
control pushrods (pushrods). This AD is prompted by a Sikorsky
investigation that indicated that some pushrods may have incorrectly
installed locking mechanisms. These AD actions are intended to detect
an incorrectly installed locking mechanism, which if not corrected,
could result in a loose jam nut, failure of the pushrod, loss of main
rotor or tail rotor flight control, and consequent loss of helicopter
control.

DATES: This AD becomes effective March 28, 2016.
    The Director of the Federal Register approved the incorporation by
reference of a certain document listed in this AD as of March 28, 2016.
    We must receive comments on this AD by May 10, 2016.

ADDRESSES: You may send comments by any of the following methods:
     Federal eRulemaking Docket: Go to http://www.regulations.gov. Follow the online instructions for sending your
comments electronically.
     Fax:<PHONE_NUMBER>.
     Mail: Send comments to the U.S. Department of
Transportation, Docket Operations, M-30, West Building Ground Floor,
Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590-0001.
     Hand Delivery: Deliver to the ``Mail'' address between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays.

Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-
4280; or in person at the Docket Operations Office between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays. The AD docket
contains this AD, any incorporated by reference service information,
the economic evaluation, any comments received, and other information.
The street address for the Docket Operations Office (telephone 800-647-
5527) is in the ADDRESSES section. Comments will be available in the AD
docket shortly after receipt.
    For service information identified in this final rule, contact
Sikorsky Aircraft Corporation, Customer Service Engineering, 124 Quarry
Road, Trumbull, CT 06611; telephone 1-800-Winged-S or<PHONE_NUMBER>;
email<EMAIL_ADDRESS>You may review the referenced service
information at the FAA, Office of the Regional Counsel, Southwest
Region, 10101 Hillwood Pkwy, Room 6N-321, Fort Worth, TX 76177. It is
also available on the Internet at http://www.regulations.gov by
searching for and locating Docket No. FAA-2016-4280.

FOR FURTHER INFORMATION CONTACT: Blaine Williams, Aerospace Engineer,
Boston Aircraft Certification Office, Engine & Propeller Directorate,
1200 District Avenue, Burlington, Massachusetts 01803; telephone (781)
238-7161; email<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Comments Invited

    This AD is a final rule that involves requirements affecting flight
safety, and we did not provide you with notice and an opportunity to
provide your comments prior to it becoming effective. However, we
invite you to participate in this rulemaking by submitting written
comments, data, or views. We also invite comments relating to the
economic, environmental, energy, or federalism impacts that resulted
from adopting this AD. The most helpful comments reference a specific
portion of the AD, explain the reason for any recommended change, and
include supporting data. To ensure the docket does not contain
duplicate comments, commenters should send only one copy of written
comments, or if comments are filed electronically, commenters should
submit them only one time. We will file in the docket all comments that
we receive, as well as a report summarizing each substantive public
contact with FAA personnel concerning this rulemaking during the
comment period. We will consider all the comments we receive and may
conduct additional rulemaking based on those comments.

Discussion

    We propose to adopt a new AD for Sikorsky Model S-92A helicopters
with certain main rotor or tail rotor control pushrods installed. After
a review of a failed pushrod, Sikorsky investigated the airworthiness
of pushrods installed on its helicopters. The investigation indicates
that the pushrods installed on Model S-92A helicopters may have
incorrect safety cable routing, incorrect jam nut torque, and/or
incorrect locking device serrations and key engagement. This AD
consequently requires inspecting the pushrods for safety cable routing,
engagement of serrations of the locking device, engagement of keys on
the locking device, thread engagement, and jam nut torque. This AD
requires either repairing or replacing the pushrod assembly, depending
on the inspection's outcome. These AD actions are intended to detect
and correct an incorrectly installed locking mechanism resulting in a
loose jam nut, failure of the pushrods, loss of main rotor or tail
rotor flight control, and consequent loss of helicopter control.

FAA's Determination

    We are issuing this AD because we evaluated all the relevant
information and determined the unsafe condition described previously is
likely to exist or develop in other products of these same type
designs.

Related Service Information Under 1 CFR Part 51

    We reviewed Sikorsky S-92 Helicopter Alert Service Bulletin ASB 92-
67-006, Revision A, dated February 19, 2016 (ASB), which specifies a
one-time inspection of the pushrod assemblies for safety cable routing,
engagement of serrations of the locking device, engagement of keys on
the locking device, thread engagement, and torque of the jam nuts. The
ASB also specifies documenting any non-compliant inspection results
and, if any discrepancies are found during the inspection, removing,
reworking, and reinstalling or replacing the pushrod. The ASB specifies
performing a rig check as required.
    This service information is reasonably available because the
interested parties have access to it through their normal course of
business or by the means identified in the ADDRESSES section.

AD Requirements

    This AD requires within 5 hours time-in-service (TIS):
     For each pushrod adjustable end, except for the upper deck
quadrant pushrod, removing the safety cable and using finger pressure,
inspecting each jam nut for movement. If a jam nut moves with finger
pressure, removing the pushrod assembly from service.
    [cir] Inspecting to determine whether a 0.02 inch diameter safety
wire can pass through the inspection hole. If the safety wire passes
through the inspection hole, repairing the pushrod, which is
terminating action for that adjustable end.
    [cir] Inspecting for correct engagement of serrations and keys of
the locking device. If a locking device is not correctly engaged,
repairing the locking device, which is terminating action for that
adjustable end.
    [cir] Torqueing each jam nut and installing the safety cable,
making sure the right-hand threads have safety cable correctly routed,
and the left-hand threads have safety cable correctly routed.
     For the upper deck quadrant pushrod, this AD requires
determining whether there is any gap between the jam nut, locking
device, and the adjustable end. It also requires:
    [cir] If there is a gap, gaining access to the pushrod, removing
the safety cable and using finger pressure, inspecting the jam nut for
movement. If the jam nut moves with finger pressure, removing the
pushrod assembly from service. If the jam nut does not move, performing
corrective actions.
    [cir] If there is no gap, visually inspecting the adjustable end
for correct safety cable routing, correct engagement of serrations and
keys of the locking device, and determining whether any thread is
visible in the inspection hole. If the safety cable is routed
incorrectly, if the locking device is not correctly engaged, or if
there is no thread in the inspection hole, gaining access to the
pushrod. Using finger pressure, inspecting the jam nut for movement. If
the jam nut moves with finger pressure, removing the pushrod assembly
from service. If the jam nut does not move with finger pressure,
performing corrective actions.

Differences Between This AD and the Service Information

    Sikorsky specifies compliance by May 16, 2016. We require
compliance within 5 hours TIS. We also do not require you to contact
Sikorsky or record information on the Pushrod Data Sheet.

Costs of Compliance

    We estimate that this AD will affect 80 helicopters of U.S.
Registry and labor costs average $85 per work-hour. Based on these
estimates, we expect the following costs:
     Inspecting all pushrod assemblies requires 2 work-hours
for a labor cost of $170. No parts are needed for a total fleet cost of
$13,600.
     Replacing a pushrod requires 2 work-hours for a labor cost
$170. Parts cost an average of $2,500 for a total cost of $2,670 per
pushrod.
     Repairing a pushrod requires an average 2 work-hours per
helicopter for a labor cost of $170 and minimal part costs.

FAA's Justification and Determination of the Effective Date

    Providing an opportunity for public comments prior to adopting
these AD requirements would delay implementing the safety actions
needed to correct this known unsafe condition. Therefore, we find that
the risk to the flying public justifies waiving notice and comment
prior to the adoption of this rule because the required corrective
actions must be accomplished within 5 hours TIS.
    Since an unsafe condition exists that requires the immediate
adoption of this AD, we determined that notice and opportunity for
prior public comment before issuing this AD are impracticable and
contrary to the public interest and that good cause exists to make this
AD effective in less than 30 days.

Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to
issue rules on aviation safety. Subtitle I, section 106, describes the
authority of the FAA Administrator. ``Subtitle VII: Aviation
Programs,'' describes in more detail the scope of the Agency's
authority.
    We are issuing this rulemaking under the authority described in
``Subtitle VII, Part A, Subpart III, Section 44701: General
requirements.'' Under that section, Congress charges the FAA with
promoting safe flight of civil aircraft in air commerce by prescribing
regulations for practices, methods, and procedures the Administrator
finds necessary for safety in air commerce. This regulation is within
the scope of that authority because it addresses an unsafe condition
that is likely to exist or develop on products identified in this
rulemaking action.

Regulatory Findings

    We determined that this AD will not have federalism implications
under Executive Order 13132. This AD will not have a substantial direct
effect 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.
    For the reasons discussed, I certify that this AD:
    1. Is not a ``significant regulatory action'' under Executive Order
12866;
    2. Is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979);
    3. Will not affect intrastate aviation in Alaska to the extent that
it justifies making a regulatory distinction; and
    4. Will not have a significant economic impact, positive or
negative, on a substantial number of small entities under the criteria
of the Regulatory Flexibility Act.
    We prepared an economic evaluation of the estimated costs to comply
with this AD and placed it in the AD docket.

List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.

Adoption of the Amendment

    Accordingly, under the authority delegated to me by the
Administrator, the FAA amends 14 CFR part 39 as follows:

PART 39--AIRWORTHINESS DIRECTIVES

0
1. The authority citation for part 39 continues to read as follows:

    Authority:  49 U.S.C. 106(g), 40113, 44701.

Sec.  39.13  [Amended]

0
2. The FAA amends Sec.  39.13 by adding the following new airworthiness
directive (AD):

2016-05-11 Sikorsky Aircraft Corporation (Sikorsky): Amendment 39-
18429; Docket No. FAA-2016-4280; Directorate Identifier 2016-SW-008-
AD.

(a) Applicability

    This AD applies to Sikorsky Model S-92A helicopters, serial
numbers 920006 through 920291, with a main rotor or tail rotor servo
input pushrod with a part number (P/N) listed in Table 1 to
paragraph (a) of this AD, certificated in any category.

                                            Table 1 to Paragraph (a)
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                      Name                              P/N                         Torque value
----------------------------------------------------------------------------------------------------------------
Yaw Boost Input Pushrod........................    92400-04801-108  60-100 inch pounds.
Pitch Boost Input Pushrod......................    92400-04801-107  43 inch pounds.
Collective Boost Input Pushrod.................    92400-04801-107  350 inch pounds.
Roll Boost Input Pushrod.......................    92400-04801-109  43 inch pounds.
Yaw Boost Out Pushrod..........................    92400-04802-109  40-46 inch pounds.
Roll Boost Out Pushrod.........................    92400-04803-103  40-46 inch pounds.
Pitch Boost Out Pushrod........................    92400-04803-102  40-46 inch pounds.
Collective Boost Out Pushrod...................    92400-04802-108  40-46 inch pounds.
Limiter Pushrod................................    92400-04803-106  40-46 inch pounds.
Pitch to Roll Pushrod..........................    92400-04803-107  40-46 inch pounds.
Left Hand Main Rotor Servo Pushrod.............    92400-04801-110  350 inch pounds.
Forward Main Rotor Servo Pushrod...............    92400-04801-111  350 inch pounds.
Right Hand Main Rotor Servo Pushrod............    92400-04801-112  350 inch pounds.
Upper Deck Quadrant Pushrod....................    92400-04802-105  60-100 inch pounds.
Tail Rotor Servo Input Pushrod.................    92400-04802-107  40-46 inch pounds.
----------------------------------------------------------------------------------------------------------------

(b) Unsafe Condition

    This AD defines the unsafe condition as an incorrectly installed
locking mechanism resulting in a loose jam nut. This condition, if
not detected and corrected, could result in failure of the main
rotor or tail rotor control pushrod, loss of main rotor or tail
rotor flight control and consequent loss of helicopter control.

(c) Effective Date

    This AD becomes effective March 28, 2016.

 (d) Compliance

    You are responsible for performing each action required by this
AD within the specified compliance time unless it has already been
accomplished prior to that time.

 (e) Required Actions

    Within 5 hours time-in-service:
    (1) For each control input pushrod (pushrod) adjustable end,
except for the upper deck quadrant pushrod:
    (i) Remove the safety cable and using finger pressure, inspect
each jam nut for movement. If a jam nut moves with finger pressure,
remove the pushrod assembly from service.
    (ii) Inspect to determine whether a 0.02 inch diameter safety
wire can pass through the inspection hole. If the safety wire passes
through the inspection hole, repair the pushrod in accordance with
the Accomplishment Instructions, paragraphs C.(2)(b) through
C.(2)(l) of Sikorsky S-92 Helicopter Alert Service Bulletin ASB 92-
67-006, Revision A, dated February 19, 2016 (ASB), which is
terminating action for that adjustable end.
    (iii) Where locking devices are used, inspect for correct
engagement of serrations and keys of the locking device as shown in
Figure 4 of the ASB. If a locking device is not correctly engaged,
repair the locking device in accordance with the Accomplishment
Instructions, paragraphs C.(3)(c) through C.(3)(f) of the ASB, which
is terminating action for that adjustable end.
    (iv) Torque each jam nut using the torque values listed in Table
1 to paragraph (a) of this AD. Install the safety cable, making sure
the right-hand threads have safety cable routed as shown in Figure 2
of the ASB, and the left-hand threads have safety cable routed as
shown in Figure 3 of the ASB.
    (2) For the upper deck quadrant pushrod, determine whether there
is any gap between the jam nut, locking device, and adjustable end.
    (i) If there is a gap, gain access to the pushrod, remove the
safety cable, and using finger pressure, inspect the jam nut for
movement. If the jam nut moves with finger pressure, remove the
pushrod assembly from service. If the jam nut does not move, perform
the actions in paragraphs (e)(1)(ii) through (e)(1)(iv) of this AD.
    (ii) If there is no gap, visually inspect the adjustable end for
correct safety cable routing as shown in Figure 2 of the ASB,
correct engagement of serrations and keys of the locking device as
shown in Figure 4 of the ASB, and to determine whether any thread is
visible in the inspection hole. If the safety cable is routed
incorrectly, if the locking device is not correctly engaged, or if
there is no thread in the inspection hole, gain access to the
pushrod. Using finger pressure, inspect the jam nut for movement. If
the jam nut moves with finger pressure, remove the pushrod assembly
from service. If the jam nut does not move with finger pressure,
perform the actions in paragraphs (e)(1)(ii) through (e)(1)(iv) of
this AD.

 (f) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Boston Aircraft Certification Office, FAA, may
approve AMOCs for this AD. Send your proposal to: Blaine Williams,
Aerospace Engineer, Boston Aircraft Certification Office, Engine &
Propeller Directorate, 1200 District Avenue, Burlington,
Massachusetts 01803; telephone<PHONE_NUMBER>; email
<EMAIL_ADDRESS>    (2) For operations conducted under a 14 CFR part 119 operating
certificate or under 14 CFR part 91, subpart K, we suggest that you
notify your principal inspector, or lacking a principal inspector,
the manager of the local flight standards district office or
certificate holding district office before operating any aircraft
complying with this AD through an AMOC.

 (g) Subject

    Joint Aircraft Service Component (JASC) Code: 6700, Rotorcraft
Flight Control.

 (h) Material Incorporated by Reference

    (1) The Director of the Federal Register approved the
incorporation by reference of the service information listed in this
paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
    (2) You must use this service information as applicable to do
the actions required by this AD, unless the AD specifies otherwise.
    (i) Sikorsky S-92 Helicopter Alert Service Bulletin ASB 92-67-
006, Revision A, dated February 19, 2016.
    (ii) Reserved.
    (3) For Sikorsky service information identified in this final
rule, contact Sikorsky Aircraft Corporation, Customer Service
Engineering, 124 Quarry Road, Trumbull, CT 06611; telephone 1-800-
Winged-S or<PHONE_NUMBER>; email<EMAIL_ADDRESS>    (4) You may view this service information at FAA, Office of the
Regional Counsel, Southwest Region, 10101 Hillwood Pkwy., Room 6N-
321, Fort Worth, TX 76177. For information on the availability of
this material at the FAA, call<PHONE_NUMBER>.
    (5) You may view this service information that is incorporated
by reference at the National Archives and Records Administration
(NARA). For information on the availability of this material at
NARA, call

(202) 741-6030, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.

    Issued in Fort Worth, Texas, on March 2, 2016.
Scott A. Horn,
Acting Manager, Rotorcraft Directorate, Aircraft Certification Service.
[FR Doc. 2016-05258 Filed 3-10-16; 8:45 am]
 BILLING CODE 4910-13-P


[Federal Register: October 16, 2007 (Volume 72, Number 199)]
[Notices]
[Page 58729-58730]
[DOCID:fr16oc07-130]

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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

Office of Hazardous Materials Safety; Notice of Application for
Special Permits

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
DOT.

ACTION:  List of Applications for Special Permits.

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SUMMARY:  In accordance with the procedures governing the application
for, and the processing of, special permits from the Department of
Transportation's Hazardous Material Regulations (49 CFR part 107,
subpart B), notice is hereby given that the Office of Hazardous
Materials Safety has received the application described herein. Each
mode of transportation for which a particular special permit is
requested is indicated by a number in the ``Nature of Application''
portion of the table below as follows: 1--Motor vehicle, 2--Rail
freight, 3--Cargo vessel, 4--Cargo aircraft only, 5--Passenger-carrying
aircraft.

DATES:  Comments must be received on or before November 15, 2007.

Address Comments To:  Address Comments To: Record Center, Pipeline and
Hazardous Materials Safety Administration, U.S. Department of
Transportation, Washington, DC 20590.
    Comments should refer to the application number and be submitted in
triplicate. If confirmation of receipt of comments is desired, include
a self-addressed stamped postcard showing the special permit number.

FOR FURTHER INFORMATION CONTACT:  Copies of the applications are
available for inspection in the Records Center, East Building, PHH-30,
1200 New Jersey Avenue Southeast, Washington, DC or at http://dms.dot.gov
.

    This notice of receipt of applications for special permit is
published in

accordance with part 107 of the Federal hazardous materials
transportation law (49 U.S.C. 5117(b); 49 CFR 1.53(b)).

    Issued in Washington, DC, on October 10, 2007.
Delmer F. Billings,
Director, Officer of Hazardous Materials, Special Permits and
Approvals.

                                               New Special Permits
----------------------------------------------------------------------------------------------------------------
                                                                     Regulation(s)     Nature of special permits
   Application  No.        Docket  No.           Applicant             affected                 thereof
----------------------------------------------------------------------------------------------------------------
14584-N..............                      WavesinSolids LLC     49 CFR 173.302 and    To authorize the
                                            State College, PA.    180.209.              transportation in
                                                                                commerce of certain
                                                                                cylinders which have
                                                                                been alternatively
                                                                                ultrasonically retested
                                                                                for use in transporting
                                                                                Division 2.1, 2.2 and
                                                                                2.3 materials. (modes 1,
                                                                                2, 3, 4, 5).
14585-N..............                      Kiddle Aerospace      49 CFR 178.65.......  To authorize the
                                            Wilson, NC.                                 manufacture, marking,
                                                                                sale and use of certain
                                                                                non-DOT specification
                                                                                cylinders (fire
                                                                                extinguishers) that are
                                                                                used as components on
                                                                                the US Army's Future
                                                                                Combat Systems Manned
                                                                                Ground Vehicles. (mode
                                                                                1).
14587-N..............                      Maxwell Technologies  49 CFR 49 CFR parts   To authorize the
                                            San Diego, CA.        171-180.              transportation in
                                                                                commerce of certain non-
                                                                                DOT specification
                                                                                packagings
                                                                                (ultracapacitors)
                                                                                containing small amounts
                                                                                of acetonitrile as not
                                                                                subject to the Hazardous
                                                                                Materials Regulations.
                                                                                (modes 1, 2, 3, 4, 5).
14588-N..............                      Tulsa Gas             49 CFR 177.834......  To authorize the
                                            Technologies, Inc.                          transportation in
                                            Tulsa, OK.                                  commerce of certain DOT
                                                                                3AA specification
                                                                                cylinders containing
                                                                                compressed natural gas
                                                                                in bundles without
                                                                                removing them from the
                                                                                motor vehicle when
                                                                                loading or unloading.
                                                                                (mode 1).
14589-N..............                      Florida Power and     49 CFR 173.403,       To authorize the
                                            Light Co. Jensen      173.427(b),           transportation in
                                            Beach, FL.            173.465(c) and (d).   commerce of one Class 7
                                                                                reactor vessel closure
                                                                                head and two steam
                                                                                generators containing
                                                                                radioactive materials in
                                                                                alternative packaging.
                                                                                (mode 1).
14591-N..............                      Essex Cryogenics of   49 CFR 173.316......  To authorize the
                                            MO, Inc. St. Louis,                         manufacture, marking,
                                            MO.                                         sale and use of a non-
                                                                                DOT specification
                                                                                cylinder similar to a
                                                                                DOT 4L for the
                                                                                transportation of in
                                                                                commerce of Oxygen,
                                                                                refrigerated liquid.
                                                                                (modes 1, 2, 3, 4, 5).
14592-N..............                      Southwest Airlines    49 CFR 172.202(a)(6)  To authorize the
                                            Co. Dallas, TX.                             transportation in
                                                                                commerce of Life-Saving
                                                                                appliances, self-
                                                                                inflating by air when
                                                                                identifying only the
                                                                                gross weight per package
                                                                                on shipping papers.
                                                                                (mode 5).
14593-N..............                      American Railcar      49 CFR 180.509......  To authorize the
                                            Industries St.                              continued transportation
                                            Charles, MO.                                in commerce of 23 DOT
                                                                                Specification 111 tank
                                                                                cars that are past their
                                                                                test date by up to 6
                                                                                months. (mode 2).
----------------------------------------------------------------------------------------------------------------

[FR Doc. 07-5080 Filed 10-15-07; 8:45 am]

BILLING CODE 4909-60-M


[Federal Register Volume 76, Number 71 (Wednesday, April 13, 2011)]
[Notices]
[Pages 20760-20761]
[FR Doc No: 2011-8872]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-64259; File No. SR-NASDAQ-2010-134]

Self-Regulatory Organizations; The NASDAQ Stock Market LLC;
Notice of Designation of Longer Time Period for Commission Action on
Proceedings To Determine Whether To Approve or Disapprove Proposed Rule
Change To Adopt Additional Criteria for Listing Commodity Stockpiling
Companies That Have Indicated That Their Business Plan Is To Buy and
Hold Commodities

April 8, 2011.
    On October 15, 2010, The NASDAQ Stock Market LLC (``Nasdaq'' or
``Exchange'') filed with the Securities and Exchange Commission
(``Commission''), pursuant to Section 19(b)(1) of the Securities
Exchange Act of 1934 (``Act''),\1\ and Rule 19b-4 thereunder,\2\ a
proposed rule change to adopt additional criteria for listing commodity
stockpiling companies (``CSCs'') that have indicated that their
business plan is to buy and hold commodities. The proposed rule change
was published for comment in the Federal Register on November 3,
2010.\3\ The Commission received no comments on the proposal. The
Commission subsequently extended the time period in which to either
approve the proposed rule change, disapprove the proposed rule change,
or to institute proceedings to determine whether to disapprove the
proposed rule change, to February 1, 2011.\4\ The Commission received
one comment letter on the proposal.\5\ On January 31, 2011, the
Commission issued an order instituting proceedings to determine whether
to disapprove the proposed rule change.\6\
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 63207 (October 28,
2010), 75 FR 67788.
    \4\ See Securities Exchange Act Release No. 63508 (December 9,
2010), 75 FR 78300 (December 15, 2010).
    \5\ See Letter from Edward H. Smith, Jr. to Florence E. Harmon,
Deputy Secretary, Commission, dated January 18, 2011.
    \6\ See Securities Exchange Act Release No. 63804 (January 31,
2011), 76 FR 6506 (February 4, 2011).
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    Section 19(b)(2) of the Act \7\ provides that not later than 180
days after the date of publication of notice of the filing of a
proposed rule change, the Commission shall issue an order approving or
disapproving the proposed rule change. Section 19(b)(2) of the Act \8\
further provides that the Commission may extend the period for issuance
of

the order approving or disapproving the proposed rule change by not
more than 60 days if the Commission determines that a longer period is
appropriate and publishes the reasons for such determination, or the
self-regulatory organization that filed the proposed rule change
consents to the longer period.
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    \7\ 15 U.S.C. 78s(b)(2)(B)(ii)(I).
    \8\ 15 U.S.C. 78s(b)(2)(B)(ii)(II).
---------------------------------------------------------------------------

    The Commission is extending the 180-day time period for the
issuance of an order approving or disapproving the proposed rule change
for an additional 60 days.\9\ The Commission finds that it is
appropriate to designate a longer period within which to issue an order
approving or disapproving the proposed rule change so that the
Commission has sufficient time to consider the Exchange's proposal and
whether it is consistent with the Act. The proposal would establish,
for the first time, standards for listing securities of companies whose
business plan is to buy and hold commodities.
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    \9\ The proposed rule change was published for notice and
comment in the Federal Register on November 3, 2010. See supra note
2. The 180th date from publication in the Federal Register is May 2,
2011 and an additional 60-days from that date would extend the time
period to July 1, 2011.
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    Accordingly, pursuant to Section 19(b)(2) of the Act,\10\ the
Commission designates July 1, 2011 as the date by which the Commission
shall issue an order either approving or disapproving the proposed rule
change (File Number SR-NASDAQ-2010-134).
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    \10\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\11\
---------------------------------------------------------------------------

    \11\ 17 CFR 200.30-3(a)(31).
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Cathy H. Ahn,
Deputy Secretary.
[FR Doc. 2011-8872 Filed 4-12-11; 8:45 am]
BILLING CODE 8011-01-P


1 MEMORANDUM From: Mindy Gampel and Michael Hessling EPA, Office of Policy, Economics and Innovation ( OPEI)

To: Public Record for the Final Rule: Streamlining the General Pretreatment Regulations for Existing and New Sources of Pollution EPA Docket Number OW 2002 0007 ( www. epa. gov/ edockets/)

Date: June 6, 2005 Re: EPA's Documented Rationales for Establishing Concentration Based Pretreatment Standards This memorandum presents the Agency's documented rationales for establishing concentration based pretreatment standards instead of production based or flow based mass limits. This evaluation is drawn from preambles and development documents dating back to 1973, as well as conversations with EPA staff involved in the development of effluent guidelines. This listing presents most of the effluent guidelines with concentration based pretreatment standards.

Based on an assessment of nineteen effluent guidelines with concentration standards, EPA's decision to establish concentration based standards for certain categories or subcategories falls into six groups:

1. POTWs and/ or the affected industry submitted comments favoring concentration based standards, because they are easier to implement.

2. Due to the complexity and variation among facilities to be covered by categorical standards, EPA did not have enough data, could not adequately measure production, or could not find a consistent production normalizing relationship in order to establish mass limits on a nationwide basis.

3. Because the industry covered by the categorical standards does not make a product and existing best professional judgment based permits were concentration based, EPA chose concentration standards over mass.

4. For concentration based oil and grease standards, EPA based its decision on a literature review which indicated at what concentration oil and grease can interfere with a POTW's operations.

5. EPA could not identify any additional water reduction technologies at the time of promulgation which would necessitate setting mass based limits. 2 6. Concerns with dilution could be addressed through in plant monitoring or a dilution prohibition.

Below is a brief description of the history of each effluent guideline reviewed and direct quotes from published preambles and supporting documents that are relevant to the issue of why the Agency set concentration based pretreatment standards. Although Part 413 establishes alternative mass based limits and Part 438 does not establish pretreatment standards, the preambles for both provide useful information about metal finishing operations which are covered by concentration only standards in Part 433. Therefore, they are included in this memorandum. Finally, some of the effluent guidelines presented in this memorandum also contain productionnormalized mass based standards as alternatives to concentration based standards. Within the terms and conditions set forth in each set of effluent guidelines, permit writers can use either production normalized mass based standards or concentration based standards when setting permit limits.

1. 40 CFR 413  Electroplating EPA promulgated Best Practicable Control Technology ( BPT), Best Available Technology Economically Achievable ( BAT), and New Source Performance Standards ( NSPS) for the Electroplating Category in 1974 and promulgated Pretreatment Standards for Existing Sources ( PSES) and Pretreatment Standards for New Sources ( PSNS) in 1975. In 1976, EPA suspended the BPT standards, revoked the BAT, NSPS, PSES and PSNS for one subcategory and withdrew its notice of proposed rulemaking for the Category. In 1977, EPA issued an interim final rule for PSES only covering seven subcategories, but suspended them on May 14, 1979. On February 14, 1978, EPA proposed PSES for seven categories that expanded the number of parameters regulated under the 1977 interim final rule.

The original regulations were production based limits. In the March 28, 1974, final rule preamble, EPA discusses some of the comments received regarding the decision to use mass limits for direct dischargers and new indirect dischargers. " While it may be difficult or inconvenient for some platers to determine their production in terms of square meters plated, it is not impossible.... The effluent limitations applicable to a particular discharger may be determined by multiplying the effluent limitations in paragraph ( a) of § 413.12 for existing sources by the production expressed in sq m or sq ft. The product of this calculation has dimensions of mg or lb. An effluent factor of 200 liters per sq m ( 5 gallons per sq ft) is the water use for rinsing typical of plants in the electroplating industry. Individual dischargers may decide that further water conservation is necessary or desirable to meet effluent limitations based on the best practicable control technology currently available." 39 FR 11510. In order to provide additional flexibility to facilities in measuring compliance, the regulation allowed a discharger to " establish a correlation between area plated and another parameter, such as ampere hours used in plating." ( See § § 413.12, 413.15, 413.16).

In the July 12, 1977, preamble to the interim final rule for existing pretreatment sources, EPA chose to establish concentration based standards rather than mass. " The limitations 3 specified in this regulation are expressed in terms of concentration although optional mass based limitations may be developed later which will allow local enforcement authorities to choose between the two. The Agency has decided to use concentration limits in this regulation because of the ease of enforcing such limits and because of the need to implement the pretreatment program as quickly as possible. However, dilution may be a problem in some instances. Where dilution is encountered and is of concern, local authorities should consider the need for prohibitions on dilution, inspection of pretreatment and industrial facilities and enforcement of mass limitations." 42 FR 35839. Following a petition requesting EPA to reconsider certain standards, EPA suspended the interim rule on May 14, 1979.

EPA proposed revised PSES on February 14, 1978. In the preamble, EPA solicited comment on several aspects of the rule including the decision to set concentration based standards. " These proposed pretreatment standards are concentration standards except for pH. The proposed regulations prohibit dilution as a means of complying with these regulations. The Agency solicits comments on the practicality of enforcing this prohibition, particularly in the context of local pretreatment enforcement programs. In addition there is a danger that concentration based standards will penalize those firms that conserve water. A water conserving firm while discharging lower absolute amounts of a given pollutant could violate concentrationbased limitations that are achieved by a similar firm that uses more water. Therefore, the Environmental Protection Agency solicits comments in the extent to which these concentrationbased standards penalize firms who have better than average water usage." 43 FR 6563.

Although not proposed, in the final rule, EPA provided for alternative mass based standards. " Alternative mass based standards which are equivalent to the concentration based standards are also set forth in this regulation. These optional standards may replace the concentration standards where mutually agreed to by the discharger and the publicly owned treatment works." 44 FR 52591. In responding to comments from some who said that concentration based standards penalize facilities employing water conservation or reuse techniques and other commenters who said that concentration based standards do not penalize such facilities, EPA stated: " The Agency recognizes that concentration based standards do not encourage water conservation or reuse techniques. However, such standards do not necessarily penalize conservation. This regulation includes optional mass based standards as well as concentration based standards." Id. at 52604. One commenter said that companies conserving water should be given higher allowable concentration based limits. EPA's response: " Use of mass based limitations may have the effect of allowing water conserving indirect dischargers to discharge higher concentrations of pollution than allowed by the concentration based standards. However, if the resulting allowable concentrations should cause an adverse impact on the POTW, stricter standards may be imposed by the local control authority." Id. at 52609 2. 40 CFR 415  Inorganic Chemicals EPA first promulgated BPT, BAT, NSPS, and PSNS for the Inorganic Chemicals Category in 1974, promulgated PSES in 1977, and subsequently amended the regulations in 1982 and 1984. Of the 48 subcategories in this Category, only 6 contain concentration only standards; 4 the remainder either provide alternate mass limits, zero discharge requirements, or no pretreatment standards.

In 1980, EPA proposed amendments to certain subcategories of the Inorganic Chemicals Category. Of those pretreatment standards which were concentration based only and where EPA was revising the standards to be more stringent than the existing 1977 standards, the Agency also established alternative mass limits. " Effluent limitations for PSES and PSNS are expressed as allowable concentrations in milligrams per liter ( mg/ l). For POTW's wishing to impose mass limitations, the proposed regulations provide alternative mass limitations." 45 FR 49453; ( July 24, 1980).

The 1984 Phase II final rule provides some indication for why EPA established concentration only standards for certain subcategories. " The zinc chloride model plant used for the proposed regulations has a unit flow of 13.5 m3/ kkg. However, recent data indicate that unit flow may vary considerably depending upon the product produced ( liquid or solid). Because this is determined by the market and cannot be predicted, we are promulgating guidelines and standards on a concentration basis only. Permit writers may convert the concentration based limit to a mass based limit based on the flow at individual facilities." 49 FR 33407 ( August 22, 1984, Page 33407]). EPA also states that " The Agency is promulgating PSES ( and PSNS) limitations based on concentrations ( mg/ l) rather than mass based limitations, because the flow in the industry is low and the Agency could not identify any flow reduction technology for this industry. Therefore, the imposition of mass based PSES would result in no significant reduction benefits. Under these circumstances, since it is easier for POTWs to enforce pretreatment standards based on concentrations of pollutants rather than mass based limitations, we are promulgating concentration based pretreatment standards." Id. at 33409.

3. 40 CFR 418  Fertilizer Manufacturing EPA first promulgated BPT, BAT, NSPS, and PSNS for five subcategories in the Fertilizer Manufacturing Point Source Category on April 8, 1974, and added two additional subcategories in 1975. EPA proposed PSES, but did not finalize them. The standards in this Category are a mixture of zero discharge, production based mass limits, and concentration based limits which were sometimes different between proposal and final and between initial promulgation and subsequent amendments. For example, Subpart C ( Urea Subcategory) was initially promulgated as production based mass limits and later amended to be concentrationbased Very little information exists that explains EPA's rationale for selecting concentration versus mass for certain subcategories, but the following quote provides some information.

In the responses to comment portion of the April, 1974, preamble to the final rule establishing five subcategories EPA notes the following: " It was suggested that concentration ( mg/ l) should be used instead of production based limitations. Expressing effluent limitations in mass units related to production ( kg of pollutant per kkg of product) rather than in concentrations insures that limitations are not met by the simple expedient of diluting the waste stream. Limitations for the phosphate subcategory were given in concentration units because discharges 5 are related solely to rainfall not production." 39 FR 12835.

4. 40 CFR 419  Petroleum Refining EPA first promulgated BPT, BAT, NSPS and PSNS for the Petroleum Refining Point Source Category on May 9, 1974. On the same day, EPA proposed PSES equivalent to the final BPT limits, which established production based limits for multiple parameters.

On March 23, 1977, EPA issued an interim final rule which substantially modified the 1974 proposal. In the 1977 preamble, EPA discusses its decision to set concentration based standards for indirect dischargers: " In the course of establishing a subcategorization scheme for the indirect discharging segment of the industry, it was determined upon analysis of location, age, economic, status, size, wastewater characteristics, and manufacturing processes of indirect versus direct dischargers, that there are no fundamental differences that would warrant a different method of subcategorization for the indirect discharge segment of the petroleum refining industry. However, it was further concluded that all indirect dischargers should be subject to the same pretreatment standards. This conclusion resulted from the fact that the pretreatment standards recommended herein are imposed on a concentration basis, as opposed to the mass basis utilized for direct dischargers." 42 FR 15686. EPA only established standards for oil and grease and ammonia.

In 1979, EPA proposed to replace the existing PSES, PSNS, BAT and NSPS, and establish BCT limits. EPA proposed concentration based PSES and PSNS for oil and grease and ammonia, with total chromium limits applying only to cooling tower blowdown. Alternatively, the chromium limit could apply to the entire refinery flow by multiplying the concentration standard by the ratio of the cooling tower blowdown flow to the total refinery flow." Effluent limitations for PSES and PSNS are expressed as allowable concentrations in milligrams per liter ( mg/ l). For POTWs which may wish to impose mass limitations, the proposed regulations provide alternate equivalent mass limitations." 44 FR 75929. EPA concluded that" In establishing existing PSES, EPA found that ammonia and oil and grease interfere with the operation of POTWs at levels which may be discharged by indirect dischargers in the petroleum refining industry. The pretreatment standards are expressed as maximum daily concentrations ( milligrams per liter). Informational mass limitations are also provided for those POTWs which find it necessary or desirable to limit total mass discharge of pollutants." Id. at 75936.

On October 18, 1982, EPA finalized these pretreatment standards. 47 FR 46434. EPA modified the proposed standards for the final rule to eliminate the informational alternate mass limit for oil and grease. EPA also allowed facilities to comply with an alternative mass limit for sour waters." An alternative mass limitation for ammonia ( N) is included for those indirect dischargers whose discharge to the POTW consists solely of " sour" water. Sour waters generally result from water brought into direct contact with a hydrocarbon stream, and contain sulfides, ammonia and phenols. The Agency developed an alternative mass limitation for ammonia in response to public comments received on the proposed regulation. Several commenters indicated that, when the refinery discharge to the POTW consists solely of sour waters, the achievement of 6 the 100 mg/ l ammonia concentration limitation is often not possible. This is because the steam stripping technology, the basis for the limitations, cannot consistently reduce ammonia in sour water streams to the 100 mg/ l level. Thus, an equivalent mass limitation for ammonia was developed by the Agency." 47 FR 46439; ( October 18, 1982). The final rule deleted control of chromium pollution in PSES ( Id. at 46439) but did retain chromium PSNS and the requirement to convert the concentration based PSNS to a mass based permit limit using the facility's cooling tower discharge flow. Id. at 46440.

5. 40 CFR 423  Steam Electric Power Generating EPA first promulgated BPT, BAT, NSPS and PSNS for the Steam Electric Power Generating Point Source Category on March 4, 1974 ( 39 FR 36186), and promulgated PSES on March 23, 1977 ( 72 FR 15690). EPA proposed revisions to BAT, NSPS, PSES and PSNS on October 14, 1980 ( 45 FR 68326), and promulgated these revisions on November 19, 1982 ( 47 FR 52290). In the 1977 final rule, EPA established a metal cleaning waste water PSES containing a flow normalized, mass based limitation for total copper. This limitation was based upon a maximum concentration of 1.0 mg/ l. The PSES also contained a flow normalized, mass based limit for oil and grease based upon a maximum concentration of 100 mg/ l and a prohibition on the discharge of PCBs.

The 1980 proposal contained first time coverage of copper for the metal cleaning waste water PSNS and, for the metal cleaning waste water PSES, copper was changed from a flownormalized mass based maximum limit to a concentration based daily maximum limit. The 1982 final regulations clarify that the copper PSES applies to chemical, not non chemical, metal cleaning waste waters. The 1982 regulations also establish and PSNS contain a daily maximum concentration based daily maximum limits for total chromium and total zinc, and requirements that the 126 priority pollutants may not be present in detectible amounts. As noted in the preamble of the1982 final rule for direct dischargers, " The existing and proposed regulations specify that permits were to be based on mass limits to be calculated by multiplying flow by concentration. The final rule allows the permitting authority to establish either concentration or mass limits for any effluent limitation or standard, based on the concentrations specified in the regulations." ( 47 FR 52293; ( November 19, 1982).) Although neither the proposal nor final rule preamble explains why the pretreatment standards were changed to concentration with no alternative mass limit, it is likely that POTW commenters indicated that they preferred concentration based standards, which are easier to implement.

" One commenter requested that EPA interpret or amend the regulations to allow concentration based limitations to be established in permits instead of mass limitations and based upon concentration and flow. Highly variable nature of waste stream flows in electric power generating facilities makes it very difficult to select an appropriate flow upon which to base a mass based limitation."

EPA's response: "... we agree that the use of mass based limits in all circumstances is undesirable. The potentially large variations in flow makes it difficult in some cases to choose a 7 representative flow. Incorrect selection of a representative flow may result in limits that are either too stringent or too lenient. Accordingly, we have decided to give the permit writer the authority to incorporate either concentration based limits or mass based limits into the permit. Case bycase determinations may be made, depending on the characteristics of the particular facility.... The Agency plans to prepare guidance for permit writers to further clarify the instances in which setting concentration or mass based permit limitations is appropriate for the various fuel types ( nuclear, coal, etc.) as well as types of waste streams." Id. at 52300. The final rule requirements that allow the permitting authority to establish either concentration or mass based limits does not apply to indirect dischargers.

6. 40 CFR 425  Leather Tanning EPA first promulgated production based limits for BPT, BAT, NSPS, and PSNS for the Leather Tanning Point Source Category on April 9, 1974. EPA established qualitative PSES on March 23, 1977; these standards were similar to the general prohibitions in the current Part 403. In 1979, EPA proposed revised BPT and NSPS ( which had been remanded in an earlier court decision), new BCT limits, and revised BAT, PSES and PSNS. Following promulgation on November 23, 1982, EPA was sued by industry groups and entered into a settlement agreement which required the Agency to collect new data and propose amendments. Amendments were promulgated in March 1988.

Although EPA proposed concentration based pretreatment standards, the Agency did not promulgate numeric limits in 1977 due to a variety of factors, including a determination that trivalent chromium did not cause pass through or interference. In the discussion of comments in the final rule preamble, " One commenter indicated that water conservation programs undertaken by some plants may warrant reconsideration of the need for pretreatment, where the concentrations of pollutants in smaller volumes of raw wastewater can increase significantly." EPA's response: " The Agency has noted the occurrence of this circumstance for at least one plant where conservation and reuse programs have been a continuing part of production procedure and management policy. While some minor problems of POTW operation have occurred in this case, similar circumstances of national scope have not occurred. While some increases in raw waste loads can be anticipated with major conservation and reuse programs, the Agency has not identified the need to alter the regulation or discourage such in plant control progress at this time. However, the Agency is now engaged in a review of the 1983 best available technology economically achievable effluent limitations. The effort may disclose information which would warrant modification of this pretreatment regulation at a later date to account for in plant conservation and reuse programs designed to control or eliminate the discharge of some pollutants while concentrating the presence of other pollutants." 42 FR 15702; ( March 23, 1977).

The current PSES and PSNS for this Category are concentration based standards, while production based limits apply to direct dischargers. In the 1979 proposal, EPA notes that " Effluence limitations for PSES and PSNS are expressed as allowable concentrations in milligrams per liter ( mg/ l). For POTWs which may wish to impose mass limitations, the proposed regulations provide guidance on equivalent mass limitations." 44 FR 38749. Additionally, the 8 proposed rule text provides for each subcategory: " In cases when POTWs find it necessary to impose mass limitations, the following equivalent mass limitations are provided as guidance." Id. at 38769. ( See § 425.25.) However, the 1982 final rule does not include this language and the preamble does not explain why it was removed.

The 1982 preamble does provide the following: " It must be noted that the Agency has promulgated concentration based pretreatment standards for sulfide and chromium. The amount of water used at any plant is not germane to the achievability of these standards. Therefore, indirect dischargers will have added flexibility because water use reduction is not necessary to achieve these standards. The Agency believes that the cost of pretreatment technology can be minimized by first reducing to the maximum extent feasible the volume of wastewater to be treated. For this reason, the Agency has utilized reduced water use ratios ( see Section V of the Development Document) achieved by existing sources only in calculating the costs of PSES." 47 FR 52858; ( November 23, 1982).

EPA provided implementation guidance to POTWs in 1986 that provides water use ratios for calculating additional production based limits. " Alternate production based standards based on kilogram per thousand kilograms of raw material are available for new and existing sources, and may be used by the POTWs. These alternate production limits are based upon the concentrations specified in the standards and the median water use ratios for existing sources and reduced water use ratios for new sources contained in the settlement agreement. The pretreatment standards for new and existing sources are shown in Table 2.3 and the suggested alternate production based standards are presented in Table 2.4." " Guidance Manual for Leather Tanning and Finishing Pretreatment Standards," September, 1986, Pages 2 11.

7. 40 CFR 426  Glass Manufacturing EPA promulgated pretreatment standards for four subcategories of the Glass Manufacturing point source category on January 16, 1975 ( 40 FR 2952). EPA promulgated production based standards for three subcategories ( H, K, L) and concentration based standards for fluoride in one subcategory ( M  Hand Pressed and Blown Glass). EPA was unable to develop a production normalized flow for the Hand Pressed and Blown Glass subcategory. Consequently, EPA was unable to develop production normalized mass based standards for this industry. " No typical [ model] plant can be developed for the hand pressed and blown manufacturing subcategory because of the wide variation in finishing steps applied to handmade glass." ( Development Document For Effluent Limitations Guidelines And New Source Performance Standards For The Pressed And Blown Glass, EPA 440 1 75 034 A, January 1975, Page 148).

8. 40 CFR 428  Rubber Manufacturing Categorical standards for the Rubber Manufacturing Point Source Category were first promulgated on January 10, 1975. There are PSNS in seven of the twelve subcategories. Although EPA proposed PSES in 1975, these standards were not finalized. Of the seven subcategories with PSNS, EPA established concentration based standards for oil and grease in six 9 subcategories, set production based mass limits for metals in four subcategories, and productionbased mass limits for COD in one subcategory.

There is very little justification given for setting some standards as mass and others as concentration. As noted below in the discussion of Carbon Black Manufacturing, EPA established pretreatment standards for oil and grease based on a literature review which indicated that concentrations of more than 100 mg/ l could cause interference with a POTW's operations. This 100 mg/ l standard has been carried forward in several other guidelines. A reference to 100 mg/ l was found in the January 10, 1975, proposed rule for PSES: " Some of the pollutants contained in the waste waters ( BOD and TSS) are readily treated in typical publicly owned treatment works and should not require specific pretreatment. Oil and grease should be limited to 100 mg/ l to reflect the capabilities of publicly owned treatment systems. COD, lead, zinc, and chromium should be pretreated to BPTCTCA limitations." 40 FR 2348. BPT limitations are production based mass limits.

9. 40 CFR 429  Timber Products Processing Pretreatment standards for existing sources in the timber products processing point source category were proposed April 18, 1974 ( 39 FR 13952), January 16, 1975 ( 40 FR 2834), and June 2, 1975 ( 40 FR 23829). Final pretreatment standards for existing sources were promulgated on December 9, 1976 ( 41 FR 53930). Concentration based standards for control of oil and grease ( 100 mg/ L) were promulgated to prevent POTW interference. Other concentration based standards for existing sources were promulgated for common wood treating chemicals ( copper, chromium, and arsenic). Pretreatment standards for new sources were set at zero discharge.

10. 40 CFR 433  Metal Finishing On July 15, 1983, EPA promulgated concentration based categorical standards for the Metal Finishing Point Source Category, and promulgated amendments to Part 413 Electroplating Point Source Category to include standards for total toxic organics ( TTO). Unlike Part 413, the Part 433 effluent guideline does not contain alternate mass limits.

In the proposal, EPA explains why the metal finishing limits are concentration based: " These wastes occur in a wide variety of combinations, and while the treatment may differ for each type of waste, the combined treatment system has components, i. e., precipitation and clarification, that are used for all waste types ( except solvents, which are contract hauled or reclaimed). After isolated treatment of hexavalent chromium, cyanide, and oil and grease, pollutants in these waste streams are further reduced through precipitation clarification system for metal bearing wastes. Because of the interconnecting nature of the combined waste treatment system, setting concentration limits on the effluent from the combined system appropriately characterizes the concentration limited capabilities of the technology. For these reasons, the Agency has determined that the Metal Finishing Point Source Category need not be subcategorized for regulation. A set of concentration based limitations can be applied to all metal finishing process effluents. 10 " The Agency considered, but decided against production based standards. With the wide range of operations, product quality requirements, existing process configurations, and difficulties in measuring production, no consistent production normalizing relationship could be found. Concentration based limits, however, can be consistently attained throughout the industry." 47 FR 38465 ( August 31, 1982). EPA had identified 45 unit operations, and estimated that the rule would apply to 3,750 plants.

11. 40 CFR 437  Centralized Waste Treatment EPA promulgated concentration based categorical standards for the Centralized Waste Treatment Point Source Category on December 22, 2000. Centralized waste treatment facilities do not generate a " process wastewater" in the traditional sense of this term. As a service industry, there is no manufacturing or commercial " process" which is generating water. Because there are no " manufacturing processes" or " products" for this industry, " process" wastewater for this industry includes any wastes received for treatment (" waste receipt") as well as water which comes into contact with the waste received or waste processing area. Moreover, the highly varied nature of the wastewater accepted for treatment prevented the development of mass based standards. After evaluating data supporting the final rule, EPA concluded that there is no basis in the chemistry of the wastewaters being treated which supported development of productionnormalized or flow based mass based standards. Additionally, EPA adopted concentration based standards due to the general preference of POTWs for concentration standards, which are easier to implement than mass based standards.

12. 40 CFR 438  Metal Products and Machinery ( MP& M)

In 1995, EPA proposed Phase 1 of the MP& M rulemaking. Based on comments on the proposal and further consideration, the Agency consolidated Phases 1 and 2 into a new proposal published on January 3, 2001. The new Part 438 was designed to replace Parts 413 and 433 and cover many facilities not previously regulated by an effluent guideline. Although EPA ultimately did not regulate indirect dischargers under MP& M, given the rule's initial relationship to Parts 413 and 433, relevant sections of the 2001 proposal are included in this document.

In the 2001 preamble, EPA addresses some of the comments received on the 1995 proposal, including comments related to mass based and concentration based limits. " EPA also received many comments on the issue of mass based versus concentration based limits. In the 1995 proposal, EPA proposed concentration based limits with the requirement that control authorities ( e. g., POTWs) implement them as mass based limits. EPA notes that under the NPDES permit program, the Agency already requires permit writers to implement effluent limitations guidelines as mass based limits whenever feasible ( 40 CFR 122.45( f)). EPA proposed requiring this conversion to mass based limits because the Agency believed that it was necessary to ensure the use of water conservation and pollution prevention practices similar to those that were part of EPA's selected option ( 60 FR 28230). EPA expected permit writers and control authorities to use historical flow as a basis for the conversion to mass based limits for facilities that demonstrated good water conservation practices. However, for facilities that did not have 11 good water conservation in place, EPA provided detailed guidance to permit writers and control authorities in the Technical Development Document ( TDD) for the 1995 proposal. The TDD included information on a full range of water use levels ( in gallons/ sq. ft.) for a large variety of MP& M operations as well as guidance on how permit writers and control authorities could determine if a facility was using good water conservation practices.

" EPA received comments on the administrative burden on POTWs associated with implementation of mass based limits. The commenters stated that the burden was largely due to the fact that most MP& M facilities do not collect production information on a wastestream bywastestream basis. POTWs have continued to voice these concerns at recent public stakeholder meetings. To address this issue, EPA collected additional MP& M unit operation specific information on pollution prevention practices, water use, and wastewater generation in the data collection efforts that followed the Phase I proposal.

" In today's proposal, EPA is again proposing concentration based limits ( for all but one subcategory ) and is providing detailed information on water use levels for specific unit operations in the Technical Development Document. However, the Agency is no longer proposing to require control authorities ( e. g., POTWs) or permit writers to decide when it is most appropriate to implement mass based limits. EPA believes that this approach will reduce implementation burden on POTWs and will result in increased use of water conservation practices at the facilities where POTWs and permit writers think it is most needed. EPA believes that MP& M facilities that use the best pollution prevention and water conservation practices may request that the control authority or permit writer use mass based limits in their permits or other control mechanisms." 66 FR 432 ( January 3, 2001).

For those subcategories for which EPA proposed concentration based pretreatment standards, the following rule language was included: " The control authority has the option of imposing mass based standards in place of the concentration based standards. To convert to mass based standards, multiply each parameter's concentration based standard times the average daily flow of the process wastewater discharged by the source into the POTW." ( See proposed requirements at § § 438.15, .17, .25, .27, .45, .47, .65, .67; starting at Page 542).

13. 40 CFR 439  Pharmaceutical Manufacturing November 17, 1976, EPA first promulgated interim BPT standards for the Pharmaceutical Manufacturing Point Source Category based on percent removals. On October 27, 1983, EPA promulgated PSES and PSNS cyanide limits for Subparts A D, as well as revisions to the 1976 BPT standards, and BAT and BCT. Effluent guidelines for this point source were later amended in September 1998.

In the summary of responses to comments in the 1983 final rule preamble, EPA discusses concentration limits: " Effluent limitations guidelines can be in the form of percent reduction, concentration, or production based mass limitations. Limitations can be based solely on the performance of applicable treatment technologies. However, when the available production data 12 for an industrial category or subcategory can be correlated with pollutant discharges, EPA can develop mass limitations based on both treatment technology performance and production. This latter approach, however, is not appropriate for the pharmaceutical manufacturing point source category because of the large number of different products involved, the constantly changing nature of the product mix, and the lack of an established correlation between pollutant discharge and production. The development of percent reduction limitations requires that influent as well as effluent data descriptive of treatment technology performance be available whereas concentration limitations require only that effluent data be available. Oftentimes, influent data relating to treatment system performance is either not available or is considerably less extensive and descriptive than the effluent data. Both of these considerations influenced the Agency's decision to propose concentration based limitations for the pharmaceutical industry." 48 FR 49818 ( October 27, 1983).

In discussing the technology options in the 1995 proposal, EPA expressed concerns about dilution. 60 FR 21592 ( May 2, 1995). Rather than proposing mass limits, the Agency proposed to address dilution through establishing in plant points of regulation. " Like the proposed BAT limitations, the proposed pretreatment standards for existing dischargers are only marginally above the minimum levels established for these pollutants. Similarly, EPA is concerned that dilution with process and non process wastewater might cause the pollutants to be undetectable by current analytical methods. Under EPA regulations, however, indirect dischargers are prohibited from substituting dilution for treatment, except where dilution is expressly authorized by an applicable pretreatment standard. See 40 CFR 403.6( d). This prohibition theoretically could be enforced by POTWs through the establishment of local limitations at in plant locations on a pollutant by pollutant, case by case basis in the same way that a permit writer could do so for direct dischargers. By establishing in plant monitoring requirements, the POTW, like the permit writer, would be able to determine whether compliance is being achieved by dilution or by treatment. The difference, however, is this pollutant by pollutant, case by case solution to the detection and dilution problems may impose a financial and technical burden on POTWs. There are six times as many indirect dischargers as direct dischargers, and unlike state and EPA permit writers, POTWs commonly lack the on site technical expertise to establish and justify in plant monitoring requirements on a case by case basis. Even when such expertise exists, EPA is concerned that the accompanying burden and expense would be significant. Therefore, EPA is proposing to establish in plant points of regulation on a nationwide level." Id. at 21623.

At the same time EPA was proposing the revisions to the pharmaceutical effluent guideline, the Agency was also developing the pharmaceutical NESHAP, which affected EPA's revisions of the pharmaceutical effluent guideline. ".... Like the HON, the pharmaceuticals NESHAP will probably authorize percent reduction standards, effluent concentration limitations and mass removal requirements as options for measuring compliance. EPA considered proposing percent reduction limitations and standards in this water rulemaking, but for the following reasons has determined that such limitations and standards would not adequately control the discharge of wastewater pollutants of concern, particularly volatile pollutants. First, in EPA's view, effluent limitations guidelines and standards based on percent reduction do not reflect the performance of the best available technology in removing wastewater pollutants for the pharmaceutical 13 manufacturing industry. EPA's analysis of actual performance data shows that the proposed concentration based effluent limitations and standards can be met, regardless of variations in the influent concentrations of the target volatile compounds, using well designed and well operated technology. Second, percent reduction effluent limitations, as previously promulgated under the Clean Water Act for this industry, may discourage source reduction programs ( programs whose goal is to reduce raw waste loadings of volatiles) because plants with high raw waste loadings of volatiles can more easily comply with percent reduction regulations than plants with moderate or low volatile loadings. Finally, the percent reduction approach for effluent limitations guidelines and standards imposes special burdens on permit writers and facilities. The percent reduction approach would require the gathering and evaluation of long term raw waste data from each facility in order to develop plant specific limitations on individual pollutants, and to demonstrate continuing compliance with the limitations." ( 60 FR 21633). EPA promulgated concentrationbased pretreatment standards for this industry on September 21, 1998 ( 63 FR 50388).

14. 40 CFR 442  Transportation Equipment Cleaning EPA promulgated categorical standards for the Transportation Equipment Cleaning Point Source Category on August 14, 2000. In the proposal, EPA identifies a number of available flow reduction technologies that can be used by this industry and included wastewater flow reduction as a component of the treatment options.

As its basis for proposing mass based standards, EPA states: " For this industry, EPA is proposing to establish mass based rather than concentration based limits. The limits are specified as grams per tank cleaned. EPA envisions that permit writers would use these limits, in combination with data on annual number of tanks cleaned and annual facility wastewater flow, to calculate facility specific concentration based limits for wastewater flows leaving the treatment plant, and then incorporate these limits into the permit. EPA is proposing this approach because it is concerned that if it proposed concentration based limits directly, facilities might be able to comply with these limits by increasing their water usage rather than installing and properly operating appropriate treatment, thereby diluting rather than removing pollutants of concern. EPA is soliciting comment on the appropriateness of this approach and the burden on the permitting and pretreatment authorities. Based on comments received, EPA may decide to convert the mass based limits in the proposed regulation to concentration based limits for the final rule." ( 63 FR 34715; ( June 25, 1998).

In the subsequent Notice of Data Availability ( 64 FR 38863; July 20, 1999), EPA discusses comments received on the proposed mass limits. " EPA proposed to establish mass based rather than concentration based limits for the TEC industry, specified as grams of pollutant per tank cleaned. Numerous stakeholders have identified potential difficulties with implementing mass based limits as proposed. In proposing mass based limits, the Agency envisioned that the allowable discharge by a facility would be based on the average number of tanks cleaned at that facility on an annual basis. One of the main difficulties with this approach is the high variability in the number of tanks cleaned by a facility. The nature of a service industry is such that a tank cleaning facility has little control over the number of tanks which are brought in 14 to be cleaned on a daily, monthly, or yearly basis. It is similarly difficult to predict the number of tanks that a facility will clean in an upcoming year. The Agency agrees with commenters that this variation may make it difficult to develop appropriate mass based limits for a facility.

" Additionally, the Agency agrees with stakeholders who have stated that the amount of wastewater necessary to clean a tank is dependent on several factors which may make it difficult for a permitting authority to develop appropriate mass based limits. These factors may not have been fully accounted for in the Agency's calculation of the regulatory flow per tank which was used to establish mass based limits. For example, the amount of water necessary to clean a tank depends on the cargos accepted ( products such as molasses and tar will require more water), the type of tanks cleaned ( a tank with an interior frame will require more water to clean), and the condition of the tank ( some barges are only cleaned every few years and may have accumulated significant amounts of residue which would require greater volumes of water to clean). Because of the variation in the water volumes which may be necessary to clean a tank, EPA agrees that the regulatory flow per tank developed in the proposal may not be appropriate for some facilities. This in turn could lead to inappropriate calculations of mass based limits, since mass based limits are calculated on the basis of flow.

" Based on these comments and due to the potential difficulties of implementing mass based limits, EPA will consider promulgating concentration based limits for the final regulation. Because of this possibility, EPA has presented revised effluent limitations, pretreatment standards and new source performance standards as concentration based standards for all subcategories in tables at the end of this notice.

" Although EPA will consider promulgating concentration based limits, EPA believes that there would remain an economic incentive for facilities to use as little water as possible in their cleaning operations. In the cost model developed for the proposal, for example, EPA has assessed the cost to install water conservation measures as well as various end of pipe wastewater treatment technologies. EPA has determined that the compliance cost to the industry is generally less when water conservation measures are employed. EPA has therefore continued to cost wastewater flow reduction as a component of treatment options in the truck and rail subcategories, even though it may decide to promulgate concentration based limits." Id. at 38864.

Finally, in the preamble for the August 14, 2000, final rule, EPA discusses the decision to promulgate concentration based standards. " EPA proposed mass based limitations. In the proposal and NOA, EPA discussed a change to the format of the rule that would establish concentration based rather than mass based limits. EPA received many comments on the proposal and on the NOA from regulatory authorities, industry stakeholders, and POTWs strongly supporting the concentration based format of the rule. EPA received only one comment on the proposal supporting mass based limits. In the NOA, EPA presented concentration based limitations and explained its rationale for the change. Comments on the NOA were unanimously supportive of concentration based limits. The final limitations and standards being promulgated today are concentration based." 65 FR 49669. 15 EPA also discusses the change in technology bases for the subcategories: " EPA has eliminated flow reduction from the technology options for all subcategories because it is promulgating concentration based rather than mass based limitations. Note, however, that EPA has retained flow reduction as a cost effective compliance strategy for several subcategories." Id. at 49671.

15. 40 CFR 443  Paving and Roofing Materials Pretreatment standards for new sources in four subcategories in the Paving and Roofing Materials Point Source Category were first proposed on January 10, 1975 ( 40 FR 2352) and promulgated on July 24, 1975 ( 40 FR 31189). EPA stated that the PSNS is complementary to the general pretreatment standards to prevent interference of POTW operations or pass through of pollutants through POTW operations. 40 FR 2352.

EPA promulgated PSNS in four subcategories on the parameter ` oil and grease' at 100 mg/ l. The type of limits and standards for direct dischargers differ by the four subcategories and are either concentration based ( Subpart A  Asphalt Emulsion); zero discharge ( Subpart B  Asphalt Concrete); or production based mass limits ( Subpart C  Asphalt Roofing; Subpart D  Linoleum and Printed Asphalt Felt). The parameter ` oil and grease' is only controlled in Subpart A through concentration based limitations and standards ( i. e., kg/ m3). EPA proposed pretreatment standards for existing sources in four subcategories in this point source category ( oil and grease standards of 100 mg/ l) on July 24, 1975 ( 40 FR 31196). EPA never finalized these pretreatment standards for existing sources.

No rationale could be found in the proposal or final preambles for why EPA selected a concentration basis for the proposed PSES and the promulgated PSNS for the parameter ` oil and grease.' Conversations with staff who worked in the Division at the time these standards were proposed and promulgated indicate that the standards were set at the performance of an oil water separator at the time of proposal and promulgation.

16. 40 CFR 444  Commercial Hazardous Waste Combustors Subcategory of the Waste Combustors Point Source Category EPA promulgated concentration based pretreatment standards for the Commercial Hazardous Waste Combustors ( CHWC) Subcategory on January 27, 2000. The preamble to the February 6, 1998, proposed rule discusses EPA's decision to establish concentration based standards for both direct and indirect dischargers, which also have the same technology basis: " EPA is requesting comments on the decision to use concentration limitations as opposed to production based limitations. EPA based the decision on the fact that Industrial Waste Combustors do not make a product. However, the limitations could potentially be based upon how much waste is burned rather than product generation. EPA sees the concentration limitations as a potential problem in that facilities could generate more process water to comply with the limitations rather than treating the process water sufficiently. For example, a facility could increase the volume of scrubber water by decreasing the amount of scrubber water that is recycled 16 for reuse. EPA is requesting comments on this issue." 63 FR 6417 ( February 6, 1998).

In response to public comments EPA stated, " EPA concluded that production based ( mass based) limits were not appropriate for the CHWC Industry for several reasons. First, EPA could not identify any consistent relationship between the quantity of waste burned and the quantity of scrubber and other CHWC wastewater generated. This reflects, in a large degree, the fact that each CHWC facility uses different types of air pollution control equipment, in different combinations, to control their emissions. Different types of air pollution control equipment develop very different amounts of wastewater. The most extreme example would be a wet scrubbing versus a dry scrubbing system, where a dry scrubbing system would generate no wastewater at all. See Table 3 9 of the TDD for a list of the different types of air pollution control used in the CHWC Industry. Second, this reflects, in part, the fact that those CHWC facilities with wet air pollution control recycle their scrubber water in greatly varying rates ( with a periodic blow down of the water for treatment and discharge.)"

17. 40 CFR 458  Carbon Black Manufacturing EPA promulgated categorical standards for Carbon Black Manufacturing on January 9, 1978. For direct discharges, EPA established zero discharge limits. For indirect dischargers, EPA established 100 mg/ l oil and grease PSNS, but no limits for PSES. The development document for the final rule states: " Subcategories A D should have no process waste water discharges. No carbon black plant is known to discharge process waste water to a POTW. If a facility, as a result of this rule, determines that a discharge should be made to a POTW rather than recycling the water to quench systems some pretreatment would be required. This pretreatment would be of a type to prevent excessive oil and grease discharges. It has been shown in literature the oil and grease levels of 100 mg/ l from petroleum, mineral or unknown origin could interfere with the normal operations of a POTW. For this reason a pretreatment level of 100 mg/ l oil and grease for new sources is recommended." Development Document for Final Effluent Limitations Guidelines and New Source Performance Standards for the Carbon Black Manufacturing Point Source Category," 1976, pg. 83).

18. 40 CFR 466  Porcelain Enameling EPA proposed production normalized mass based pretreatment standards for this industrial category on January 27, 1981; ( 46 FR 8860). EPA promulgated concentration based and production normalized mass based standards in the November 24, 1982, final rule to help ease the implementation of the pretreatment standards for existing sources. " The Agency recognizes that concentration based standards may be more easily implemented and in this specific case resulting additional pollutant discharges will not be substantial." 47 FR 53177 ( November 24, 1982. Control authorities have the discretion to choose which set of standards they wish to use.

EPA did, however, set production normalized mass based pretreatment standards for new sources. " Although mass based standards may be somewhat more difficult for a POTW to 17 enforce, mass based standards are necessary for PSNS to ensure that the considerable effluentreduction benefits of flow reduction techniques are obtained. Overall flow and pollution reduction of about 90 percent can be achieved by countercascade rinsing, and countercascade rinsing is not excessively costly in new plants." Id. at 53178).

19. 40 CFR 469  Electrical and Electronic Components EPA promulgated concentration based PSES and PSNS for Electrical and Electronic Components ( Phase I) on April 8, 1983, for Total Toxic Organics ( TTO) and arsenic, and promulgated concentration based PSES and PSNS for Phase II on December 14, 1983. Note that for TTO, indirect dischargers may request that no monitoring be required, and instead submit a solvent management plan as well as a certification statement as part of their periodic compliance reports.

In the Phase I proposal, EPA provides a rationale for establishing concentration based standards for direct dischargers, which also informs the decision for indirect dischargers. " The BPT, BAT, and BCT limitations and NSPS in this regulation will be applied to individual plants through NPDES permits issued by EPA or approved State agencies under Section 402 of the Act. Under the proposed regulation for the Electrical and Electronic Components Category, all limitations are concentration based. National mass based limitations are not provided because the Agency has determined that a fundamental relationship between production and pollutant loadings does not exist in either subcategory. See 40 CFR 122.63( f). Permitting authorities can derive mass based limitations by multiplying the concentration limit by the undiluted discharge flow." 47 FR 37056 ( August 24, 1982).

In the Phase II proposed rule covering Cathode Ray Tubes and Luminescent Materials subcategories, the Agency discusses this industry's water use and rationale for establishing concentration based limits. " Because of the high cost of DI [ deionized] water, the industry practice is to reuse/ recycle and conserve water to whatever extent is practical. Therefore, further waste water flow reduction by increased water conservation and recycle does not appear practicable. The plant to plant variability of the degree of water reuse and recycle is a function of general product quality requirements and, to a lesser extent, of site specific water supply factors. This made it infeasible to derive a correlation between water flow and production. An effort was even made to establish a relationship between DI water produced and plant production level. This absence of a relationship between production and waste water flow precluded the use of mass based limits. That is why this proposal would set concentration based limits." 48 FR 10015( March 9, 1983).

On Page 11019 of the Phase II proposed rule, in the discussion of the relationship to NPDES permits and general BCT treatment, the Agency states: " As discussed in section VII B, national mass based limitations are not provided because the Agency has determined that a fundamental relationship between production and pollutant loadings cannot be broadly established for either subcategory. See 40 CFR 122.63( f). Permitting authorities can derive mass based limitations by multiplying the concentration limit by the undiluted discharge flow. The Effluent 18 Guidelines Division can assist the permitting authorities in making this determination, especially with respect to the validity of the flow levels presented by a permittee as representative of their plant."

The preamble to the Phase II final rule continues this discussion and notes that one reason for not setting mass limits was the Agency's inability to set them on a nationwide basis: " EPA attempts, when possible, to set production based effluent limitations which will tend to reduce water usage. In the case of the CRT and Luminescent Material Subcategories, the Agency is not establishing production based limitations and standards. We believe that available data do not support the establishment of such limitations and standards on a nation wide basis and the existing economic incentives already minimize wastewater discharge flows. The water used in the production of CRTs is deionized ( DI) water produced by using an ion exchange process. Because of the higher costs associated with deionized water, the industry practice is to reuse and conserve water to whatever extent practical. Therefore, further wastewater flow reduction by increased water conservation does not appear practicable. Morever, the Agency was unable to determine a nationally applicable relation between production and wastewater discharge. This is because the degree to which plants practice water reuse and conservation depends on product quality requirements and, to a lesser extent, site specific water supply factors." 48 FR 55693 ( December 14, 1983).