[Federal Register Volume 78, Number 1 (Wednesday, January 2, 2013)]
[Proposed Rules]
[Pages 45-51]
[FR Doc No: 2012-31538]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2012-0622; FRL-9767-2]

Approval and Promulgation of Implementation Plans; Georgia: New
Source Review--Prevention of Significant Deterioration

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve portions of a revision to the
Georgia State Implementation Plan (SIP) submitted by the State of
Georgia, through the Georgia Department of Natural Resources'
Environmental Protection Division (EPD), on July 26, 2012. The SIP
submission includes changes to Georgia's New Source Review (NSR),
Prevention of Significant Deterioration (PSD) program to incorporate by
reference (IBR) federal PSD requirements regarding fine particulate
matter (PM2.5) increments, significant impact levels (SILs),
significant monitoring concentration (SMC) and the deferral of, until
July 21, 2014, PSD applicability to biogenic carbon dioxide
(CO2) emissions from bioenergy and other biogenic stationary
sources. EPA is proposing to approve portions of Georgia's SIP
submittal because the Agency has preliminarily determined that it is
consistent with section 110 of the Clean Air Act (CAA or Act) and EPA
regulations regarding NSR permitting.

DATES: Comments must be received on or before February 1, 2013.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2012-0622 by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for
submitting comments.
    2. Email<EMAIL_ADDRESS>    3. Fax:<PHONE_NUMBER>.
    4. Mail: EPA-R04-OAR-2012-0622, Regulatory Development Section, Air
Planning Branch, Air, Pesticides and Toxics Management Division, U.S.
Environmental Protection Agency, Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303-8960.
    5. Hand Delivery or Courier: Ms. Lynorae Benjamin, Chief,
Regulatory Development Section, Air Planning Branch, Air, Pesticides
and Toxics Management Division, U.S. Environmental Protection Agency,
Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Such
deliveries are only accepted during the Regional Office's normal hours
of operation. The Regional Office's official hours of business are
Monday through Friday, 8:30 to 4:30, excluding federal holidays.
    Instructions: Direct your comments to Docket ID No. ``EPA-R04-OAR-
2012-0622.'' EPA's policy is that all comments received will be
included in the public docket without change and may be made available
online at www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit through
www.regulations.gov or email, information that you consider to be CBI
or otherwise protected. The www.regulations.gov Web site is an
``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an email comment directly to EPA without
going through www.regulations.gov, your email address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in www.regulations.gov or
in hard copy at the Regulatory Development Section, Air Planning
Branch, Air, Pesticides and Toxics Management Division, U.S.
Environmental Protection Agency, Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you
contact the person listed in the FOR FURTHER INFORMATION CONTACT
section to schedule your inspection. The Regional Office's official
hours of business are Monday through Friday, 8:30 to 4:30, excluding
federal holidays.

FOR FURTHER INFORMATION CONTACT: For information regarding the Georgia
SIP, contact Ms. Twunjala Bradley, Regulatory Development Section, Air
Planning Branch, Air, Pesticides and Toxics Management Division, U.S.
Environmental Protection Agency, Region 4, 61 Forsyth Street, SW.,
Atlanta, Georgia 30303-8960. Ms. Bradley's telephone number is (404)
562-9352; email address<EMAIL_ADDRESS>For information
regarding NSR, contact Ms. Yolanda Adams, Air Permits Section, at the
same address above. Ms. Adams' telephone number is<PHONE_NUMBER>;
email address<EMAIL_ADDRESS>For information regarding the
PM2.5 national ambient air quality standards (NAAQS),
contact Mr. Joel Huey, Regulatory Development Section, at the same
address above. Mr. Huey's

telephone number is<PHONE_NUMBER>; email address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Table of Contents

I. What action is EPA proposing?
II. What is the background for EPA's proposed action?
III. What is EPA's analysis of Georgia's SIP revision?
IV. Proposed Action
V. Statutory and Executive Order Reviews

I. What action is EPA proposing?

    On July 26, 2012, EPD submitted a SIP revision to EPA for approval
into the Georgia SIP to IBR \1\ federal NSR PSD permitting requirements
at Georgia's Air Quality Control Rule 391-3-1-.02(7)--Prevention of
Significant Deterioration of Air Quality. These rule changes were
provided to comply with federal NSR permitting regulations and include
provisions related to the implementation of the PM2.5 NAAQS
for the PSD program as promulgated in the rule entitled ``Prevention of
Significant Deterioration (PSD) for Particulate Matter Less Than 2.5
Micrometers (PM2.5)--Increments, Significant Impact Levels
(SILs) and Significant Monitoring Concentration (SMC), Final Rule,'' 75
FR 64864 (October 20, 2010) (hereafter referred to as
``PM2.5 PSD Increment-SILs-SMC Rule'') and the deferral
until July 21, 2014, of the application of PSD permitting requirement
to biogenic CO2 emissions from bioenergy and other biogenic
stationary sources as promulgated in the rule entitled, ``Deferral for
CO2 Emissions From Bioenergy and Other Biogenic Sources
Under the Prevention of Significant Deterioration (PSD) and Title V
Programs,'' Final Rule, 76 FR 43490 (July 20, 2011) (hereafter referred
to as CO2 Biomass Deferral Rule). Additionally, the July 26,
2012, SIP revision (1) IBR into Georgia SIP EPA's interim rulemaking
entitled ``Prevention of Significant Deterioration (PSD) and
Nonattainment New Source Review (NNSR): Reconsideration of Inclusion of
Fugitive Emissions; Interim Rule; Stay and Revisions,'' 76 FR 17548
(March 30, 2011) (hereafter referred to as the ``Fugitive Emissions
Interim Rule''); (2) requests that EPA remove from the SIP the
exclusion language at Rule 391-3-1-.02(7) regarding the coarse particle
pollution (PM10) surrogate and grandfathering provision
promulgated in the ``Implementation of the New Source Review Program
for Particulate Matter Less Than 2.5 Micrometers,'' 73 FR 28321, May
16, 2008 (hereafter referred to as ``NSR PM2.5 Rule''); (3)
amends the definitions Rule 391-3-1-.01(nnn)--Definitions regarding
testing and monitoring of air pollutants; and (4) revises Rule 391-3-
1-.03(6)--Exemptions by adding a new exemption for cumulative small
modifications at an existing quarry where the quarry is not a major
source and the associated emissions increase is less than 10 tons per
year of particulate matter and PM10.
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    \1\ Throughout this document IBR means incorporate or
incorporates by reference.
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    The two elements of EPD's July 26, 2012, SIP submittal that EPA is
not proposing to approve in this action are: (1) incorporation of the
SIL thresholds and provisions promulgated in EPA's PM2.5 PSD
Increment-SILs-SMC Rule (for reasons explained later in this notice);
and (2) revisions to Rules 391-3-1-.02(2)(c)--Incinerators, 391-3-
1-.02(www)--Sewage Sludge Incineration, 391-3-1-.02(8)(b)--New Source
Performance Standards and 391-3-1-.02(9)(b)--Emissions Standards for
Hazardous Air Pollutants, as these regulations are not part of
Georgia's federally approved SIP.

II. What is the background for EPA's proposed action?

    Today's proposed action to revise the Georgia SIP relates to PSD
provisions promulgated in EPA's PM2.5 PSD Increment-SILs-SMC
Rule and CO2 Biomass Deferral Rule. Additionally, the July
26, 2012, SIP revision addresses EPA's repeal of the grandfathering
provision as promulgated in the Rule entitled ``Implementation of the
New Source Review Program for Particulate Matter Less Than 2.5
Micrometers (PM2.5); Final Rule to Repeal Grandfather
Provision'' (76 FR 28646, May 18, 2011) and the extension of the stay
in the Fugitive Emissions Interim Rule. More details regarding these
rules are found in the respective final rulemakings and are summarized
below. For more information on the NSR Program and the PM2.5
NAAQS please refer to the PM2.5 PSD Increment-SILs-SMC Rule
and the NSR PM2.5 Rule.

A. PM2.5 PSD Increment-SILs-SMC-Rule

    On October 20, 2010, EPA finalized the PM2.5 PSD
Increment-SILs-SMC Rule to provide additional regulatory requirements
under the PSD program regarding the implementation of the
PM2.5 NAAQS for NSR. Specifically, the rule establishes: (1)
PM2.5 increments pursuant to section 166(a) of the CAA to
prevent significant deterioration of air quality in areas meeting the
NAAQS; (2) SILs used as a screening tool (by a major source subject to
PSD) to evaluate the impact a proposed major source or modification may
have on the NAAQS or PSD increment; and (3) a SMC (also a screening
tool) used by a major source subject to PSD to determine if a source
must submit to the permitting authority one year of pre-construction
air quality monitoring data prior to constructing or modifying a
facility. As part of the response to comments on the October 20, 2010,
final rulemaking, EPA explained that the Agency agrees that the SILs
and SMCs used as de minimis \2\ thresholds for the various pollutants
are useful tools that enable permitting authorities and PSD applicants
to screen out ``insignificant'' activities; however, these values are
not required by the Act as part of an approvable SIP program. EPA
believes that most states are likely to adopt the SILs and SMCs because
of the useful purpose they serve regardless of EPA's position that the
values are not mandatory. Alternatively, states may develop more
stringent values if they desire to do so. In any case, states are not
under any statutory deadline for revising their PSD programs to add
these screening tools. See 75 FR 64864, 64900.
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    \2\ The de minimis principle is grounded in the decision
described by the court case Alabama Power Co. v. Costle, 636 F.2d
323, 360 (DC Cir. 1980). In this case, reviewing EPA's 1978 PSD
regulations, the court recognized that ``there is likely a basis for
an implication of de minimis authority to provide exemption when the
burdens of regulation yield a gain of trivial or no value.'' 636
F.2d at 360.
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    Georgia's July 26, 2012, SIP revision IBR the NSR changes
promulgated in the PM2.5 PSD Increment-SILs-SMC Rule to be
consistent with the federal NSR regulations and to appropriately
implement the State's NSR program for the PM2.5 NAAQS. More
detail on the PM2.5 PSD Increment-SILs-SMC Rule can be found
in EPA's October 20, 2010, final rule and is summarized below. See 75
FR 64864. For the reasons explained below, EPA is not proposing to take
action to approve the SILs (promulgated in the PM2.5 PSD
Increment-SILs-SMC Rule) into the Georgia SIP in this rulemaking. EPA's
authority to implement the SILs and SMC for PSD purposes has been
challenged by the Sierra Club. Sierra Club v. EPA, Case No 10-1413
(D.C. Circuit Court).\3\ More details regarding Georgia's changes to
its PSD regulations are also summarized below in Section III.
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    \3\ On April 6, 2012, EPA filed a brief with the D.C. Circuit
Court defending the Agency's authority to implement SILs and SMC for
PSD purposes.
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1. What are PSD increments?
    As established in part C of title I of the CAA, EPA's PSD program
protects public health from adverse effects of air pollution by
ensuring that construction of new or modified sources in attainment or
unclassifiable areas does not lead to significant deterioration of

air quality while simultaneously ensuring that economic growth will
occur in a manner consistent with preservation of clean air resources.
Under section 165(a)(3) of the CAA, a PSD permit applicant must
demonstrate that emissions from the proposed construction and operation
of a facility ``will not cause, or contribute to, air pollution in
excess of any maximum allowable increase or allowable concentration for
any pollutant.'' In other words, when a source applies for a permit to
emit a regulated pollutant in an area that meets the NAAQS, the state
and EPA must determine if emissions of the regulated pollutant from the
source will cause significant deterioration in air quality. Significant
deterioration occurs when the amount of the new pollution exceeds the
applicable PSD increment, which is the ``maximum allowable increase''
of an air pollutant allowed to occur above the applicable baseline
concentration \4\ for that pollutant. PSD increments prevent air
quality in clean areas from deteriorating to the level set by the
NAAQS. Therefore, an increment is the mechanism used to estimate
``significant deterioration'' of air quality for a pollutant in an
area.
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    \4\ Section 169(4) of the CAA provides that the baseline
concentration of a pollutant for a particular baseline area is
generally the air quality at the time of the first application for a
PSD permit in the area.
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    For PSD baseline purposes, a baseline area for a particular
pollutant emitted from a source includes the attainment or
unclassifiable area in which the source is located as well as any other
attainment or unclassifiable area in which the source's emissions of
that pollutant are projected (by air quality modeling) to result in an
ambient pollutant increase of at least 1 microgram per meter cubed
([mu]g/m\3\) (annual average). See 40 CFR 52.21(b)(15)(i). Under EPA's
existing regulations, the establishment of a baseline area for any PSD
increment results from the submission of the first complete PSD permit
application and is based on the location of the proposed source and its
emissions impact on the area. Once the baseline area is established,
subsequent PSD sources locating in that area need to consider that a
portion of the available increment may have already been consumed by
previous emissions increases. In general, the submittal date of the
first complete PSD permit application in a particular area is the
operative ``baseline date'' after which new sources must evaluate
increment consumption.\5\ On or before the date of the first complete
PSD application, emissions generally are considered to be part of the
baseline concentration, except for certain emissions from major
stationary sources. Most emissions increases that occur after the
baseline date will be counted toward the amount of increment consumed.
Similarly, emissions decreases after the baseline date restore or
expand the amount of increment that is available. See 75 FR 64864. As
described in the PM2.5 PSD Increment-SILs-SMC Rule, and
pursuant to the authority under section 166(a) of the CAA, EPA
promulgated numerical increments for PM2.5 as a new
pollutant \6\ for which NAAQS were established after August 7, 1977,\7\
and derived 24-hour and annual PM2.5 increments for the
three area classifications (Class I, II and III) using the ``contingent
safe harbor'' approach. See 75 FR 64864 at 64869 and ambient air
increment table at 40 CFR 51.166(c)(1) and 52.21(c).
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    \5\ Baseline dates are pollutant specific. That is, a complete
PSD application establishes the baseline date only for those
regulated NSR pollutants that are projected to be emitted in
significant amounts (as defined in the regulations) by the
applicant's new source or modification. Thus, an area may have
different baseline dates for different pollutants.
    \6\ EPA generally characterized the PM2.5 NAAQS as a
NAAQS for a new indicator of PM. EPA did not replace the
PM10 NAAQS with the NAAQS for PM2.5 when the
PM2.5 NAAQS were promulgated in 1997. EPA rather retained
the annual and 24-hour NAAQS for PM2.5 as if
PM2.5 was a new pollutant even though EPA had already
developed air quality criteria for PM generally. See 75 FR 64864
(October 20, 2010).
    \7\ EPA interprets 166(a) to authorize EPA to promulgate
pollutant-specific PSD regulations meeting the requirements of
section 166(c) and 166(d) for any pollutant for which EPA
promulgates a NAAQS after 1977.
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    In addition to PSD increments for the PM2.5 NAAQS, the
PM2.5 PSD Increment-SILs-SMC Rule amended the definition at
40 CFR 51.166 and 52.21 for ``major source baseline date'' and ``minor
source baseline date'' (including trigger dates) to establish the
PM2.5 NAAQS specific dates associated with the
implementation of PM2.5 PSD increments. See 75 FR 64864. In
accordance with section 166(b) of the CAA, EPA required the states to
submit revised implementation plans to EPA for approval (to adopt the
PM2.5 PSD increments) within 21 months from promulgation of
the final rule (by July 20, 2012). Regardless of when a state submits
its revised SIP, the emissions from major sources subject to PSD for
PM2.5 for which construction commenced after October 20,
2010 (major source baseline date), consume PM2.5 increment
and should be included in the increment analyses occurring after the
minor source baseline date is established for an area under the state's
revised PSD program. See 75 FR 64864. As discussed in detail in Section
III, Georgia's July 26, 2012, SIP revision IBR the PM2.5 PSD
increment permitting requirements promulgated in the PM2.5
PSD Increment-SILs-SMC Rule.
2. What are significant monitoring concentrations?
    Under the CAA and EPA regulations, an applicant for a PSD permit is
required to gather preconstruction monitoring data in certain
circumstances. CAA Section 165(a)(7) calls for ``such monitoring as may
be necessary to determine the effect which emissions from any such
facility may have, or is having, on air quality in any areas which may
be affected by emissions from such source.'' In addition, CAA section
165(e) requires an analysis of the air quality in areas affected by a
proposed major facility or major modification and calls for gathering
one year of monitoring data unless the reviewing authority determines
that a complete and adequate analysis may be accomplished in a shorter
period. These requirements are codified in EPA's PSD regulations at 40
CFR 51.166(m) and 40 CFR 52.21(m). In accordance with EPA's Guideline
for Air Quality Modeling (40 CFR part 51, appendix W), the
preconstruction monitoring data are primarily used to determine
background concentrations in modeling conducted to demonstrate that the
proposed source or modification will not cause or contribute to a
violation of the NAAQS. See 40 CFR part 51, appendix W, section 9.2.
SMCs are numerical values that represent thresholds of insignificant
(i.e., de minimis), monitored (ambient) impacts on pollutant
concentrations. In EPA's PM2.5 PSD Increment-SILs-SMC Rule,
EPA established a SMC of 4 [micro]g/m\3\ for PM2.5.
    Using the SMC as a screening tool, sources may be able to
demonstrate that the modeled air quality impact of emissions from the
new source or modification, or the existing air quality level in the
area where the source would construct, is less than the SMC (i.e., de
minimis), and as such, may be allowed to forego the preconstruction
monitoring requirement for a particular pollutant at the discretion of
the reviewing authority. See 40 CFR 51.166(i)(5) and 52.21(i)(5). SMCs
are not minimum required elements of an approvable SIP under the CAA.
This de minimis value is widely considered to be a useful component for
implementing the PSD program, but is not absolutely necessary for the
states to implement PSD programs. States can satisfy the statutory
requirements for a PSD program by requiring each PSD

applicant to submit air quality monitoring data for PM2.5
without using de minimis thresholds to exempt certain sources from such
requirements. See 75 FR 64864. The PM2.5 SMC became
effective under the federal PSD program on December 20, 2010. States
with EPA-approved PSD programs that adopt the SMC for PM2.5,
however, may use the SMC, once it is part of an approved SIP, to
determine when it may be appropriate to exempt a particular major
stationary source or major modification from the monitoring
requirements under its state PSD program. Georgia's July 26, 2012,
revision IBR the SMC provision into the Georgia SIP.
    Recently, the Sierra Club filed suit challenging EPA's authority to
implement the PM2.5 SILs \8\ as well as the SMC for PSD
purposes as promulgated in the October 20, 2010, rule. Sierra Club v.
EPA, Case No 10-1413, D.C. Circuit Court. Specifically regarding the
SMC, Sierra Club claims that the use of SMC to exempt a source from
submitting a year's worth of monitoring data is inconsistent with the
CAA. EPA responded to Sierra Club's claims in a brief dated April 6,
2012, which describes the Agency's authority to develop and promulgate
SMCs.\9\ A copy of EPA's April 6, 2012, brief can be found in the
docket for today's rulemaking at www.regulations.gov using docket ID:
EPA-R04-OAR-2012-0622.
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    \8\ As mentioned earlier, due to litigation by the Sierra Club,
EPA is not proposing to take action on the SILs portion of the
Georgia's July 26, 2012, SIP revision at this time but will take
action once the court case regarding SILs implementation is
resolved.
    \9\ Additional information on this issue can also be found in an
April 25, 2012, comment letter from EPA Region 6 to the Louisiana
Department of Environmental Quality regarding the SILs-SMC
litigation. A copy of this letter can be found in the docket for
today's rulemaking at www.regulations.gov using docket ID: EPA-R04-
OAR-2012-0622.
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B. CO2 Biomass Deferral

1. The GHG Tailoring Rule
    On June 3, 2010 (effective August 2, 2010), EPA promulgated a final
rulemaking, entitled ``Prevention of Significant Deterioration and
Title V Greenhouse Gas Tailoring Rule; Final Rule'' (hereafter referred
to as the GHG Tailoring Rule), for the purpose of relieving
overwhelming permitting burdens from the regulation of greenhouse gases
(GHG) that would, in the absence of the rule, fall on permitting
authorities and sources. See 75 FR 31514. EPA accomplished this by
tailoring the applicability criteria that determine which GHG emission
sources become subject to the PSD program of the CAA. In particular,
EPA established in the GHG Tailoring Rule a phase-in approach for PSD
applicability and estblished the first two steps of the phase-in for
the largest GHG emitters.\10\ On January 13, 2011, EPD submitted a SIP
revision to EPA to IBR into the Georgia SIP (at 391-3-1-.02(7)), the
version of 40 CFR 52.21 as of June 3, 2010, which included the GHG
Tailoring Rule thresholds.\11\ EPA took final action to approve
Georgia's SIP revision on September 8, 2011. See 76 FR 55572. Please
refer to the GHG Tailoring Rule for specific details on the PSD
thresholds.
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    \10\ Please refer to the July 12, 2012 rulemaking finalizing GHG
Tailoring Rule Step 3. See 77 FR 41051.
    \11\ Georgia's submittal also revised the State's title V
operating permit provisions (which are not included in the federally
approved SIP) to incorporate the GHG Tailoring Rule provisions. As
such, EPA did not taking final action to approve Georgia's update to
its title V.
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2. EPA's CO2 Biomass Deferral Rule
    In the July 20, 2011, final rulemaking, EPA deferred until July 21,
2014, the consideration of CO2 emissions from bioenergy and
other biogenic sources (hereafter referred to as ``biogenic
CO2 emissions'') when determining whether a stationary
source meets the PSD and title V applicability thresholds, including
those for the application of best available control technology
(BACT).\12\ See 76 FR 43490. Thus, under the federal PSD rules,
stationary sources that combust biomass (or otherwise emit biogenic
CO2 emissions) and construct or modify during the deferral
period will not be subject to the application of PSD to the biogenic
CO2 emissions resulting from those actions. The deferral
applies only to biogenic CO2 emissions and does not affect
non-GHG pollutants or other GHGs (e.g., methane and nitrous oxide)
emitted from the combustion of biomass fuel. Also, the deferral only
pertains to regulation of biogenic CO2 emissions under the
PSD and title V programs and does not pertain to any other EPA programs
such as the GHG Reporting Program.
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    \12\ As with the Tailoring Rule, the Biomass Deferral addresses
both PSD and title V requirements. However, EPA is only taking
action on Georgia's PSD program as part of this action.
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    Biogenic CO2 emissions are defined as emissions of
CO2 from a stationary source directly resulting from the
combustion or decomposition of biologically-based materials other than
fossil fuels and mineral sources of carbon. Examples of ``biogenic
CO2 emissions'' include, but are not limited to:
     CO2 generated from the biological decomposition
of waste in landfills, wastewater treatment, or manure management
processes;
     CO2 from the combustion of biogas collected
from biological decomposition of waste in landfills, wastewater
treatment, or manure management processes;
     CO2 from fermentation during ethanol production
or other industrial fermentation processes;
     CO2 from combustion of the biological fraction
of municipal solid waste or biosolids;
     CO2 from combustion of the biological fraction
of tire-derived fuel; and
     CO2 derived from combustion of biological
material, including all types of wood and wood waste, forest residue,
and agricultural material.
    The deferral is intended to be a temporary measure, in effect for
no more than three years, to allow the Agency time to conduct detailed
examination of the science and technical issues related to accounting
for biogenic CO2 emissions, and determine what, if any,
treatment of biogenic CO2 emissions should be in the PSD and
title V programs. The biomass deferral rule is not EPA's final
determination on the treatment of biogenic CO2 emissions in
those programs. The Agency plans to complete its science and technical
review and any follow-up rulemakings within the three-year deferral
period and further believes that three years is ample time to complete
these tasks. It is possible that the subsequent rulemaking, depending
on the nature of EPA's determinations, would supersede the biomass
deferral rulemaking and become effective in fewer than three years. In
that event, Georgia may revise its SIP accordingly.
    EPA's final biomass deferral rule is an interim deferral for
biogenic CO2 emissions only and does not relieve sources of
the obligation to meet the PSD and title V permitting requirements for
other pollutant emissions that are otherwise applicable to the source
during the deferral period or that may be applicable to the source at a
future date pending the results of EPA's study and subsequent
rulemaking action. This means, for example, that if the deferral is
applicable to biogenic CO2 emissions from a particular
source during the three-year effective period and the study and future
rulemaking do not provide for a permanent exemption from PSD and title
V permitting requirements for the biogenic CO2 emissions
from a source with particular characteristics, then the deferral would
end for that type of source and its biogenic CO2 emissions
would have to be

appropriately considered in any applicability determinations that the
source may need to conduct for future stationary source permitting
purposes, consistent with that subsequent rulemaking and the final GHG
Tailoring Rule (e.g., a major source determination for title V purposes
or a major modification determination for PSD purposes). EPA also
wishes to clarify that the agency does not require that a PSD permit
issued during the deferral period be amended or that any PSD
requirements in a PSD permit existing at the time the deferral took
effect, such as BACT limitations, be revised or removed from an
effective PSD permit for any reason related to the deferral or when the
deferral period expires.
    Under 40 CFR 52.21(w), any PSD permit shall remain in effect,
unless and until it expires or it is rescinded, under the limited
conditions specified in that provision. Thus, a PSD permit that is
issued to a source while the deferral was effective need not be
reopened or amended if the source is no longer eligible to exclude its
biogenic CO2 emissions from PSD applicability after the
deferral expires. However, if such a source undertakes a modification
that could potentially require a PSD permit and the source is not
eligible to continue excluding its biogenic CO2 emissions
after the deferral expires, the source will need to consider its
biogenic CO2 emissions in assessing whether it needs a PSD
permit to authorize the modification.
    Any future actions to modify, shorten, or make permanent the
deferral for biogenic sources are beyond the scope of the biomass
deferral action and this proposed approval of the deferral into the
Georgia SIP, and will be addressed through subsequent rulemaking. The
results of EPA's review of the science related to net atmospheric
impacts of biogenic CO2 and the framework to properly
account for such emissions in title V and PSD permitting programs based
on the study are prospective and unknown. Thus, EPA is unable to
predict which biogenic CO2 sources, if any, currently
subject to the deferral as incorporated into the Georgia SIP would be
subject to any permanent exemptions or which currently deferred sources
would be potentially required to account for their emissions in the
future rulemaking EPA has committed to undertake for such purposes in
three or fewer years. Only in that rulemaking can EPA address the
question of extending the deferral or putting in place requirements
that would have the equivalent effect on sources covered by the biomass
deferral. Once that rulemaking has occurred, Georgia may address
related revisions to its SIP.

III. What is EPA's analysis of Georgia's SIP revision?

    Georgia currently has a SIP-approved NSR program for new and
modified stationary sources. EPD's PSD preconstruction rules are found
at Georgia Air Quality Control Rule 391-3-1-.02(7)--Prevention of
Significant Deterioration of Air Quality and apply to major stationary
sources or modifications constructed in areas designated attainment
areas or unclassifiable/attainment areas as required under part C of
title I of the CAA with respect to the NAAQS. Georgia's Rule 391-3-
1-.02(7) IBR the federal NSR PSD regulations at 40 CFR 52.21 into the
Georgia SIP. In effect, EPD's July 26, 2012, SIP revision revises Rule
391-3-1-.02(7) by updating the State's IBR date to July 20, 2011, which
includes the federal PSD permitting updates promulgated in the
PM2.5 PSD Increment-SILs-SMC Rule, the CO2
Biomass Deferral Rule and the extension of the stay in the Fugitive
Emissions Interim Rule. Additionally, the July 26, 2012, SIP submission
revises Rule 391-3-1-.02(7) by removing language to address EPA's
repeal of the PM10 surrogate and grandfathering provisions
and clarifies at subparagraph (a)(1) of 391-3-1-.01 that all dates
associated with IBR of the federal PSD rules (at 40 CFR 52.21) refer to
the date of publication of those rules in the Federal Register. In
addition to changes to Rule 391-3-1-.02(7), the July 26, 2012, SIP
revision also (1) amends Georgia's definitions at 391-3-1-.01 by
revising subparagraph (nnnn) to reference the February 1, 2012, update
to Georgia's ``Procedures for Testing and Monitoring Sources of Air
Pollutants,'' and; (2) modifies Rule 391-3-1-.03(6) by adding a new
exemption from SIP permitting requirements (at subparagraph (i)(4)) for
small modifications to an existing quarry that is not a major source,
where the combined emissions increases, including any contemporaneous
emission decreases from all nonexempt modified activities, are less
than 10 tons per year of particulate matter and PM10. The
new quarry exemption may not be used to avoid any emission limitations
or standards of the Rules for Air Quality Control Chapter 391-3-1-.02
(e.g., PSD requirements), lower the potential to emit below ``major
source'' thresholds, or avoid any ``applicable requirement'' as defined
in 40 CFR Part 70.2. See Georgia Rule 391-3-1-.03(6).
    These changes to Georgia's rules became state effective on August
9, 2012. EPA is proposing to approve changes to Georgia's Rule 391-3-
1-.02(7), to update the State's existing SIP-approved PSD program to be
consistent with federal NSR regulations (at 40 CFR 52.21) and the CAA.
In addition, EPA is proposing to approve Georgia's requested changes to
Rules 391-3-1-.01 and .0. 3. More details on EPA's analysis and
proposed approval of the portions of Georgia's July 26, 2012, SIP
submittal addressing PSD provisions promulgated in the PM2.5
PSD Increment-SILs-SMC Rule, the CO2 Deferral Rule, the
Fugitive Emissions Interim Rule and the NSR PM2.5 Rule
(grandfathering provision) are discussed below.

A. Rule 391-3-1-.02(7) SIP Revision

1. PM2.5 PSD Increment-SILs-SMC Rule
    EPD's July 26, 2012, SIP revision IBR the following provisions into
the Georgia SIP at regulation 391-3-1-.02(7) as promulgated in the
October 20, 2010, PM2.5 PSD Increment-SILs-SMC Rule: (1) PSD
increments for PM2.5 annual and 24-hour NAAQS pursuant to
section 166(a) of the CAA; (2) SILs used as a screening tool (used by a
major source subject to PSD) to evaluate the impact a proposed major
source or modification may have on the NAAQS or PSD increment; and (3)
SMC to determine the level of data gathering required of a major source
in support of its PSD permit application for PM2.5
emissions.
    Specifically, Georgia's July 26, 2012, SIP revision IBR into the
Georgia SIP (at 391-3-1-.02(7)) the PM2.5 PSD increments as
amended in the tables at 40 CFR 52.21(c) and (p)(5) (for Class I
Variances) the amendments to the terms ``major source baseline date''
(as amended at 40 CFR 52.21(b)(14)(i)(c)); ``minor source baseline
date'' (including establishment of the ``trigger date'') (40 CFR
52.21(b)(14)(ii)(c)); and the definition of ``baseline area'' (as
amended at 40 CFR 52.21(b)(15)(i) and (ii)). These changes provide for
the implementation of the PM2.5 PSD increments for the
PM2.5 NAAQS in the State's PSD program. In today's action,
EPA is proposing to approve Georgia's July 26, 2012, SIP revision to
address PM2.5 PSD increments.
    Regarding the SILs and SMC established in the October 20, 2010,
PM2.5 PSD Increment-SILs-SMC Rule, the Sierra Club has
challenged EPA's authority to implement SILs and SMC. In a brief filed
in the DC Circuit on April 6, 2012, EPA described the Agency's
authority under the CAA to promulgate and implement the SMCs and SILs
de minimis thresholds. With respect to the SMC, Georgia's July 26,
2012, SIP revision IBR the SMC of 4 [micro]g/m\3\ for

PM2.5 NAAQS at 391-3-1-.02(7). Georgia's July 26, 2012, SIP
revision is consistent with EPA's current promulgated provisions in the
October 20, 2010, PM2.5 PSD Increment-SILs-SMC Rule. EPA is
proposing to approve this promulgated threshold into the Georgia SIP as
EPA believes the SMC is a valid exercise of the Agency's de minimis
authority. However, EPA notes that future court action may require
subsequent rule revisions and SIP revisions from the State of Georgia.
    The July 26, 2012, SIP revision submitted by Georgia to IBR the new
PSD requirements for PM2.5 pursuant to the PM2.5
PSD Increment-SILs-SMC Rule also includes the new regulatory text at 40
CFR 52.21(k)(2), concerning the implementation of SILs for
PM2.5. EPA stated in the preamble to the October 20, 2010,
final rule that we do not consider the SILs to be a mandatory SIP
element, but regard them as discretionary on the part of a regulating
authority for use in the PSD permitting process. Nevertheless, the
PM2.5 SILs are currently the subject of litigation before
the U.S. Court of Appeals. Sierra Club v. EPA, Case No 10-1413 (DC
Circuit). In response to that litigation, EPA has requested that the
court remand and vacate the regulatory text in EPA's PSD regulations at
paragraph (k)(2) so that EPA can make necessary rulemaking revisions to
that text. In light of EPA's request for remand and vacatur and the
acknowledgement of the need to revise the regulatory text presently
contained at paragraph (k)(2) of sections 51.166 and 52.21, EPA does
not believe that it is appropriate at this time to approve that portion
of Georgia's SIP revision that contains the affected regulatory text in
the State's PSD regulations, at 391-3-1-0.2(7). Instead, EPA is taking
no action at this time with regard to that specific provision contained
in the SIP revision. EPA will take action on the SILs portion of
Georgia's July 26, 2012, SIP revision in a separate rulemaking once the
issue regarding the court case has been resolved.
2. CO2 Biomass Deferral
    In the July 20, 2011, CO2 Biomass Deferral Rule, similar
to the approach with the GHG Tailoring Rule, EPA incorporated the
biomass deferral into the Federal PSD program by amending the
definition of ``subject to regulation'' under 40 CFR 51.166 and 52.21,
respectively. Georgia's July 26, 2012, SIP revision IBR into the
Georgia SIP 40 CFR 52.21 as of July 20, 2011, which includes the
CO2 Biomass Deferral revision to the definition of ``subject
to regulation'' deferring, until July 21, 2014, PSD applicability to
biogenic carbon dioxide (CO2) emissions from bioenergy and
other biogenic stationary sources. EPA is proposing to approve
Georgia's IBR of the CO2 Biomass Deferral Rule.
3. Fugitive Emissions Interim Rule
    Georgia's July 26, 2012, SIP revision also IBR the extension of the
stay of the Fugitive Emissions Rule into the Georgia PSD program at
391-3-1-.02(7). On December 19, 2008, EPA issued a final rule revising
the requirements of the NSR permitting program regarding the treatment
of fugitive emissions. See 73 FR 77882. The final rule required
fugitive emissions to be included in determining whether a physical or
operational change results in a major modification only for sources in
industries that have been designated through rulemaking under section
302(j) \13\ of the CAA. As a result of EPA granting the Natural
Resource Defense Council's petition for reconsideration on the original
Fugitive Emissions Rule \14\ on March 31, 2010, EPA stayed the Fugitive
Emissions Rule (73 FR 77882) for 18 months to October 3, 2011. The stay
allowed the Agency time to propose, take comment and issue a final
action regarding the inclusion of fugitive emissions in NSR
applicability determinations. On March 30, 2011 (76 FR 17548), EPA
proposed an interim rule which superseded the March 31, 2010, stay and
clarified and extended the stay of the Fugitive Emission Rule until EPA
completes its reconsideration. The interim rule simply reverts the CFR
text back to the language that existed prior to the Fugitive Emissions
Rule changes in the December 19, 2008, rulemaking. EPA plans to issue a
final rule affirming the interim rule as final. The final rule will
remain in effect until EPA completes its reconsideration. EPA is
proposing to approve Georgia's IBR of the interim rulemaking extending
the stay of the Fugitives Emissions Rule into its SIP at Rule 391-3-
1-.02(7).
---------------------------------------------------------------------------

    \13\ Pursuant to CAA section 302(j), examples of these industry
sectors include oil refineries, Portland cement plants, and iron and
steel mills.
    \14\ On April 24, 2009, EPA agreed to reconsider the approach to
handling fugitive emissions and granted a 3-month administrative
stay of the Fugitive Emissions Rule. The administrative stay of the
Fugitive Emissions Rule became effective on September 30, 2009. EPA
put an additional three-month stay in place from December 31, 2009,
until March 31, 2010.
---------------------------------------------------------------------------

4. PM2.5 Grandfathering Provision
    In the NSR PM2.5 Rule, EPA finalized regulations to
establish the framework for implementing preconstruction permit review
for the PM2.5 NAAQS in both attainment and nonattainment
areas including the grandfather provision which allowed PSD applicants
that submitted their complete permit application prior to the July 15,
2008 effective date of the NSR PM2.5 Rule to continue to
rely on the 1997 p.m.10 Surrogate Policy rather than amend
their application to demonstrate compliance directly with the new
PM2.5 requirements. See 73 FR 28321. On January 13, 2011,
Georgia submitted a SIP revision to IBR into the Georgia SIP the
version of 40 CFR 52.21 as of June 3, 2010 which included language that
excluded the grandfathering exemption (at 40 CFR 52.21(i)(1)(xi)) from
the state's PSD regulations (at Rule 391-3-1-.02(7)(b)(6)(i)) ensuring
that sources were not subject to the grandfathering provision. EPA
approved Georgia's January 13, 2011, SIP revision on September 8,
2011(76 FR 55572).
    On May 18, 2011, EPA took final action to repeal the
PM2.5 grandfathering provision at 40 CFR 52.21(i)(1)(xi).
See 76 FR 28646. Georgia's July 26, 2012, SIP submittal incorporates
into the Georgia SIP the version of 40 CFR 52.21 as of July 20, 2011,
which includes the May 18, 2011, repeal of the grandfather provision.
Thus, the language previously approved into Georgia's SIP at Rule 391-
3-1-.02(7)(b)(6)(i) that excludes the grandfathering provision is no
longer necessary. Georgia's July 26, 2012, SIP submittal removes the
unnecessary language pertaining to the grandfather provision from Rule
391-3-1-.02(7)(b)(6)(i).\15\ EPA is proposing to approve this portion
of Georgia's July 26, 2012, SIP submittal.
---------------------------------------------------------------------------

    \15\ Georgia's previous incorporation by reference of 40 CFR
52.21 at 391-3-1-.02(7) was as of June 3, 2010, which did not
include the May 18, 2011, repeal of the PM10 Surrogate
Policy; therefore the grandfathering exclusion language at 391-3-
1-.02(7)(b)(6)(i) was necessary at that time. The June 3, 2010, IBR
date was approved into the Georgia SIP on September 8, 2011.
---------------------------------------------------------------------------

IV. Proposed Action

    EPA is proposing to approve portions of Georgia's July 26, 2012,
SIP revision adopting federal regulations amended in the October 20,
2010, PM2.5 PSD Increment-SILs-SMC rule, the June 3, 2010,
CO2 Biomass Deferral Rule; the March 30, 2011, Fugitive
Emissions Interim Rule, the additional amendments regarding
PM2.5 Grandfathering Provision, and the definition and
exemption revisions into the Georgia SIP. EPA is not however proposing
to approve in this rulemaking Georgia's SIP revisions regarding the SIL
thresholds and provisions and Rule 391-3-1-.02(c)--Incinerators, 391-3-
1-.02(www)--Sewage Sludge Incineration, 391-3-1-.02(8)(b)--New Source
Performance Standards and 391-3-1-

.02(9)(b)--Emissions Standards for Hazardous Air Pollutants. EPA has
made the preliminary determination that this SIP revision, with regard
to the aforementioned proposed actions, is approvable because it is
consistent with section 110 of the CAA and EPA regulations regarding
NSR permitting.

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
proposed action merely approves state law as meeting federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this proposed action:
     Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in
Executive Order 13132 (64 F43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
     Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this proposed rule does not have tribal implications
as specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Greenhouse gases,
Incorporation by reference, Intergovernmental relations, Nitrogen
oxides, Particulate matter, Reporting and recordkeeping requirements.

    Authority:  42 U.S.C. 7401 et seq.

    Dated: December 18, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 2012-31538 Filed 12-31-12; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 75, Number 234 (Tuesday, December 7, 2010)]
[Rules and Regulations]
[Pages 75868-75870]
[FR Doc No: 2010-30199]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. FAA-2010-0845; Directorate Identifier 2010-CE-044-AD;
Amendment 39-16534; AD 2010-25-01]
RIN 2120-AA64

Airworthiness Directives; Diamond Aircraft Industries GmbH Models
DA 40 and DA 40F Airplanes

AGENCY: Federal Aviation Administration, DOT.

ACTION: Final rule.

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

SUMMARY: We are adopting a new airworthiness directive (AD) for the
products listed above. This AD requires changing the emergency open
doors procedure by incorporation of a temporary revision into the FAA-
approved airplane flight manual (AFM) for all airplanes. This AD also
requires replacement of the passenger door retaining bracket with an
improved design retaining bracket for certain airplanes. This AD was
prompted by several reports of the rear passenger door departing the
airplane in flight. We are issuing this AD to change the emergency open
doors procedure and retrofit the rear passenger door retaining bracket,
which if not corrected could result in the rear passenger door
departing the airplane in flight.

DATES: This AD is effective January 11, 2011.
    The Director of the Federal Register approved the incorporation by
reference of certain publications listed in the AD as of January 11,
2011.

ADDRESSES: For service information identified in this AD, contact
Diamond Aircraft Industries GmbH, N.A. Otto-Stra[szlig]e 5, A-2700
Wiener Neustadt, Austria, telephone: +43 2622 26700; fax: +43 2622
26780; e-mail<EMAIL_ADDRESS>Internet: http://www.diamond-air.at. You may review copies of the referenced service information at
the FAA, Small Airplane Directorate, 901 Locust, Kansas City, Missouri
64106. For information on the availability of this material at the FAA,
call<PHONE_NUMBER>.

Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov; or in person at the Docket Management Facility
between 9 a.m. and 5 p.m., Monday through Friday, except Federal
holidays. The AD docket contains this AD, the regulatory evaluation,
any comments received, and other information. The address for the
Docket Office (phone:<PHONE_NUMBER>) is Document Management Facility,
U.S. Department of Transportation, Docket Operations, M-30, West
Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE.,
Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT: Mike Kiesov, Aerospace Engineer, FAA,
Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri
64106; telephone:<PHONE_NUMBER>; fax:<PHONE_NUMBER>; e-mail:
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR
part 39 to include an airworthiness directive (AD) that would apply to
the specified products. That NPRM published in the Federal Register on
August 25, 2010 (75 FR 52292). That NPRM proposed to require a retrofit
of the rear passenger door retaining bracket for certain airplanes. The
NPRM also proposed to change the emergency open doors procedure by
incorporation of a temporary revision into the FAA-approved AFM for all
airplanes.

Comments

    We gave the public the opportunity to participate in developing
this AD. The following presents the comments received on the proposal
and the FAA's response to each comment.

Request To Shorten the Compliance Time

    Robert Hasiak fully supported this AD action and stated that a door
falling out of the sky over the general public is a safety hazard and
that the sooner this is fixed, the safer we will be. We infer that the
commenter wants us to shorten the compliance time from the proposed 6
months.
    The FAA does not agree that 6 months is an unreasonable compliance
time to address this situation. This 6-month compliance time is
consistent with the service bulletin in that the time for compliance
closely coincides with June 11, 2011 (the compliance time in the
service bulletin). It also coincides with the appropriate risk level
the FAA, the Austro Control Group (ACG), and European Aviation Safety
Agency (EASA) agreed with. The FAA has determined that the actions of
this AD and the compliance time address the unsafe condition in the
interim until further analysis is done by Diamond Aircraft Industries
GmbH (Diamond), EASA, and the FAA. We are not changing the AD based on
this comment.

Request To Revise the Airplane Flight Manual Procedures

    David Wood stated that the door departure while the aircraft is in
flight happens when someone realizes the door is only being retained by
the safety latch and then tries to close the door completely. This
causes the safety latch to disengage and the door to depart the
aircraft. The commenter suggests the following: ``DO NOT TRY TO CLOSE
THE DOOR ON TAKEOFF ROLL, CLIMB, CRUISE, DESCENT, OR UNTIL VERY SLOW
LANDING ROLL.'' We infer that he wants the language added to the
emergency open doors procedure in the AFM.
    We agree with the commenter's assessment of the unsafe condition
and the need to revise the emergency open doors procedure. However, we
disagree on the suggested language. Diamond has issued Temporary
Revision TR-M[Auml]M 40-428, dated April 30, 2010. This revision
changes the emergency open doors procedure to ``Land at the next
suitable airfield'' when it is determined the rear door is unlocked.
The revision also adds a warning to not attempt to lock the rear door
in flight. The FAA has determined the action in this AD of adding the
temporary revision to the AFM addresses the unsafe condition. We are
not changing the AD based on this comment.

Request To Include the Model DA42

    Villis Ositis of the Thielert Engine Owners Group commented that
the Model DA 42 has the same door design and the same unsafe condition.
He recommended that the AD also apply to the Model DA 42.
    The FAA has discussed the potential of the rear door departing the
Model DA 42 aircraft in flight with ACG, EASA, and Diamond. The FAA has
determined the actions of this AD and the compliance time address the
unsafe condition in the interim for the Model DA 40. Further analysis
is being done for the Model DA 42. We may consider future rulemaking
action on the Model DA 42 based on that analysis. We are not changing
the AD based on this comment.

Request To Disconnect the Front Canopy Latch Sensor From the Door Open
Indicator

    Villis Ositis of the Thielert Engine Owners Group commented that
the door open annunciation illuminates regardless whether it is the
front canopy or the rear door that is not latched. The commenter states
that since these aircraft do not have air conditioning it is common
practice to taxi with the

canopy in the partially open setting, illuminating the door open
annunciation. As a result, the pilot ignores the annunciation and is
unaware that the rear door might not be properly latched. The commenter
also states that passengers that have not been trained in the use of
the doors may not be able to identify an incorrect latch position.
    To correct the problem, the commenter suggests the wiring be
modified to remove the front canopy latch sensor from the door open
annunciation. In this proposed configuration the door open annunciation
would only illuminate when the rear door was not properly latched and
alert the pilot to the unsafe condition.
    The FAA does not agree nor disagree with the proposed comment.
Rather, the FAA is investigating this matter with ACG, EASA, and
Diamond.
    Diamond is now planning a design and flight test review to
determine the overall safety issues with regard to this recommendation,
which could take a few months to complete.
    In the interim, the FAA has determined that the actions of this AD
address the unsafe condition until further analysis is done. The FAA
may consider further rulemaking action based on the evaluation. We are
not changing the AD based on this comment.

Conclusion

    We reviewed the relevant data, considered the comments received,
and determined that air safety and the public interest require adopting
the AD as proposed--except for minor editorial changes. We have
determined that these minor changes:
     Are consistent with the intent that was proposed in the
NPRM for correcting the unsafe condition; and
     Do not add any additional burden upon the public than was
already proposed in the NPRM.

Costs of Compliance

    We estimate that this AD affects 699 airplanes of U.S. registry.
    We estimate the following costs to comply with this AD:

                                                 Estimated Costs
----------------------------------------------------------------------------------------------------------------
                                                                                Cost per      Cost on U.S.
             Action                     Labor cost              Parts cost            product        operators
----------------------------------------------------------------------------------------------------------------
Revise the AFM (all airplanes).  .5 work-hour x $85 per   Not Applicable........          $42.50      $29,707.50
                                  hour = $42.50.
Retrofit the passenger door      2 work-hours x $85 per   $75.00................          245.00      104,860.00
 retaining bracket (428           hour = $170.00.
 airplanes).
----------------------------------------------------------------------------------------------------------------

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

    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 above, 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, 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.

List of Subjects in 14 CFR Part 39

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

Adoption of the Amendment

0
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):

2010-25-01 Diamond Aircraft Industries GmbH: Amendment 39-16534;
Docket No. FAA-2010-0845; Directorate Identifier 2010-CE-044-AD.

Effective Date

    (a) This AD is effective January 11, 2011.

Affected ADs

    (b) None.

Applicability

    (c) This AD applies to Diamond Aircraft Industries GmbH Models
DA 40 and DA 40F airplanes, all serial numbers (S/N), that are
certificated in any category.

Subject

    (d) Joint Aircraft System Component (JASC)/Air Transport
Association (ATA) of America Code 52, Doors.

Unsafe Condition

    (e) This AD was prompted by several reports of the rear
passenger door departing the airplane in flight. We are issuing this
AD to change the emergency open doors procedure and retrofit the
rear passenger door retaining bracket, which if not corrected could
result in the rear passenger door departing the airplane in flight.

Compliance

    (f) Comply with this AD within the compliance times specified,
unless already done.

------------------------------------------------------------------------
           Actions                 Compliance            Procedures
------------------------------------------------------------------------
(1) For all S/N: Incorporate  Within 6 months       Follow Diamond
 Diamond Aircraft Temporary    after January 11,     Aircraft Temporary
 Revision TR-M[Auml]M 40-      2011 (the effective   Revision TR-
 428, page 3-37b, dated        date of this AD).     M[Auml]M 40-428,
 April 30, 2010, into the                            Cover Page, dated
 FAA-approved airplane                               April 30, 2010.
 flight manual.
(2) For Model DA 40, S/N      Within 6 months       Follow Diamond
 40.006 through 40.009,        after January 11,     Aircraft Industries
 40.011 through 40.081,        2011 (the effective   GmbH Mandatory
 40.084, and 40.201 through    date of this AD).     Service Bulletin
 40.749; and Model DA 40F S/                         NO. MSB 40-070/NO.
 N 40.FC001 through                                  MSB D4-079/NO. MSB
 40.FC009: Replace the rear                          F4-024, dated April
 passenger door retaining                            30, 2010; and
 bracket with an improved                            Diamond Aircraft
 design retaining bracket.                           Industries GmbH
                                                     Work Instruction WI-
                                                     MSB 40-070/WI-MSB
                                                     D4-079/WI-MSB F4-
                                                     024, dated April
                                                     30, 2010.
------------------------------------------------------------------------

Alternative Methods of Compliance (AMOCs)

    (g)(1) The Manager, Standards Office, FAA, has the authority to
approve AMOCs for this AD, if requested using the procedures found
in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request
to your principal inspector or local Flight Standards District
Office, as appropriate. If sending information directly to the
manager of the ACO, send it to the attention of the person
identified in the Related Information section of this AD.
    (2) Before using any approved AMOC, notify your Principal
Maintenance Inspector or Principal Avionics Inspector, as
appropriate, or lacking a principal inspector, your local Flight
Standards District.

Related Information

    (h) For more information about this AD, contact Mike Kiesov,
Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust,
Room 301, Kansas City, Missouri 64106; telephone:<PHONE_NUMBER>;
fax:<PHONE_NUMBER>; e-mail<EMAIL_ADDRESS>
Material Incorporated by Reference

    (i) You must use the service information contained in table 1 of
this AD to do the actions required by this AD, unless the AD
specifies otherwise.

                                 Table 1--All Material Incorporated by Reference
----------------------------------------------------------------------------------------------------------------
                   Document                               Revision                           Date
----------------------------------------------------------------------------------------------------------------
Diamond Aircraft Temporary Revision TR-         Not Applicable..............  April 30, 2010.
 M[Auml]M 40-428, Cover Page and page 3-37b.
Diamond Aircraft Industries GmbH Mandatory      Not Applicable..............  April 30, 2010.
 Service Bulletin NO. MSB 40-070/NO. MSB D4-
 079/NO. MSB F4-024.
Diamond Aircraft Industries GmbH Work           0...........................  April 30, 2010.
 Instruction WI-MSB 40-070/WI-MSB D4-079/WI-
 MSB F4-024.
----------------------------------------------------------------------------------------------------------------

    (1) The Director of the Federal Register approved the
incorporation by reference of the service information contained in
table 1 of this AD under 5 U.S.C. 552(a) and 1 CFR part 51.
    (2) For service information identified in this AD, contact
Diamond Aircraft Industries GmbH, N.A. Otto-Stra[szlig]e 5, A-2700
Wiener Neustadt, Austria, telephone: +43 2622 26700; fax: +43 2622
26780; e-mail<EMAIL_ADDRESS>Internet: http://www.diamond-air.at.
    (3) You may review copies of the service information at the FAA,
Small Airplane Directorate, 901 Locust, Kansas City, Missouri 64106.
For information on the availability of this material at the FAA,
call<PHONE_NUMBER>.
    (4) You may also review copies of the service information that
is incorporated by reference at the National Archives and Records
Administration (NARA). For information on the availability of this
material at an NARA facility, call<PHONE_NUMBER>, or go to http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.

    Issued in Kansas City, Missouri, on November 23, 2010.
Earl Lawrence,
Manager, Small Airplane Directorate, Aircraft Certification Service.
[FR Doc. 2010-30199 Filed 12-6-10; 8:45 am]
BILLING CODE 4910-13-P


Form for Compliance with E. O. 12866 Docket Requirements Title of Regulation: National Pollutant Discharge Elimination System ( NPDES) Permit Requirements for Municipal Wastewater Treatment Discharges During Wet Weather Conditions: Proposed Policy Contact person: Kevin Weiss Phone number: ( 202) 564 0742 Was this regulation reviewed by OMB under Executive Order 12866  Regulatory Planning and Review?

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This regulation was reviewed by OMB under Executive Order 12866  Regulatory Planning and Review.

Attached is the draft regulation and any other documents sent to OMB for review, such as analyses and assessments. E. O. 12866 requires agencies to make these publicly available.

E. O. 12866 also requires agencies to identify the substantive changes between the draft regulation sent to OMB for review and the regulation subsequently announced [ Please check the appropriate box below:]

EPA made substantive changes to this regulation ( includes changes initiated by EPA or OMB). Attached is a document which: ( 1) identifies all the substantive changes made, and ( 2) notes those changes OMB suggested or recommended.

No substantive changes were made to this regulation Therefore, no further attachments are required..

If you have questions about this regulation, please call the EPA contact person listed above.