DRAFT 1 August 4, 2006 ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 122, 123 and 124 [ EPA[ HQ or R##][

[ EPA HQ OW 2005 0523, FRL  XXXX ]

National Pollutant Discharge Elimination System Permit Requirements for Peak Wet Weather Discharges from Publicly Owned Treatment Works Treatment Plants Serving Separate Sanitary Sewer Collection Systems AGENCY: Environmental Protection Agency ( EPA)

ACTION: Notice of Policy SUMMARY: EPA is issuing a policy regarding National Pollutant Discharge Elimination System ( NPDES) permit requirements for peak wet weather diversions at publicly owned treatment works ( POTW) treatment plants serving separate sanitary sewer collection systems. Regulatory agencies, municipal operators of wastewater facilities, and representatives of environmental advocacy groups have expressed uncertainty about the appropriate regulatory interpretation for such situations. Today's policy describes a process for evaluating whether and under what conditions certain peak wet weather flow diversions should be approved or denied in an NPDES permit. This process involves assessment and implementation of feasible alternatives by the POTW in conjunction with regulatory authorities and the general public. EPA's intention is to ensure that NPDES permit requirements are developed and applied in a manner that improves the capacity, management, operation and maintenance of POTW treatment plants and separate sanitary sewer collection systems and protects human health and the environment.

DATES: The policy is effective immediately.

ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA HQ OW 2005 0523. All documents in the docket are listed on the www. regulations. gov web site. Publicly available docket materials are available either electronically through www. regulations. gov or in hard copy at the Water Docket, EPA Docket Center, EPA/ DC, EPA West, Room B102, 1301 Constitution Ave., NW, Washington, D. C. The Public Reading Room is open from 8: 30 a. m. to 4: 30 p. m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is ( 202) 566 1744, and the telephone number for the Water Docket is ( 202) 566 2426).

FOR FURTHER INFORMATION CONTACT: For questions about this policy, contact Kevin Weiss ( e mail at weiss. kevin@ epa. gov or phone at ( 202) 564 0742) at Water Permits DRAFT 2 August 4, 2006 Division, Office of Wastewater Management, U. S. Environmental Protection Agency ( Mailcode 4203M), 1200 Pennsylvania Ave., NW, Washington, D. C. 20460.

SUPPLEMENTARY INFORMATION:

I. General Information Acronyms Used CSO Combined sewer overflow EPA Environmental Protection Agency I/ I infiltration and inflow NPDES National Pollutant Discharge Elimination System POTW Publicly owned treatment works SSO Sanitary sewer overflow ( this does not include CSOs)

II. BACKGROUND Many stakeholders have requested that EPA clarify the NPDES requirements for discharges from POTW treatment plants serving separate sanitary sewers where peak wet weather flow is routed around secondary treatment units and then blended with the effluent from the secondary units prior to discharge and where the final discharge meets permit effluent limitations based on the secondary treatment regulations and any more stringent limitations necessary to attain water quality standards. On November 7, 2003, EPA requested public comment on a proposed policy addressing this issue. See 68 FR 63042 ( November 7, 2003). Under that proposed interpretation, a wet weather diversion around secondary treatment units that was blended with the wastewaters from the secondary units prior to discharge would not have been considered a bypass if the six criteria specified in the November 7, 2003 proposed policy were met.

EPA received significant public comment on the proposed policy, including over 98,000 comments opposing that proposed policy due to concerns about human health risks. On May 19, 2005, EPA indicated that after consideration of the comments, it did not intend to finalize the 2003 proposal. On July 26, 2005, Congress enacted the Fiscal Year 2006 Department of the Interior and Related Agencies Appropriations Act ( P. L. 109 54). Section 203 of the Appropriations Act provides that none of the funds made available in the Act could be used to finalize, issue, implement or enforce the November 7, 2003 proposed blending policy.

In October 2005, the Natural Resources Defense Council ( NRDC) and the National Association of Clean Water Agencies ( NACWA) provided EPA with their joint proposal recommending further action that the Agency should take regarding the blending issue. The approach recommend by NRDC/ NACWA included an interpretation of the bypass regulation that is significantly different from the November 7, 2003 proposal, in that it would clarify that the bypass provision would apply, in all instances, to wet weather diversions at POTW treatment DRAFT 3 August 4, 2006 plants serving separate sanitary sewers. It also included an interpretation that certain peak flow wet weather diversions could be approved as anticipated bypasses. On December 22, 2005, EPA requested public comments on a new draft policy that reflected the approach recommended by the NRDC and NACWA. See 70 FR 76013 ( December 22, 2005).

III. Summary of Comments and Changes from the Draft Policy The December 2005 draft policy had two major objectives. The first objective was to provide EPA's interpretation of how the bypass provision applies to wet weather diversions at POTW treatment plants serving sanitary sewers. The second objective was to outline a process for, in very limited circumstances, NPDES authorities to consider the appropriateness of approving anticipated bypasses in NPDES permits for discharges from POTW treatment plants serving sanitary sewers.

EPA received 156 comments on the December 22, 2005, draft policy. EPA has prepared a response to comment document as part of its consideration of these comments. A brief summary of major comments and EPA's response are provided below.

A. Interpretation of the Bypass Provision Most commenters on the December 22, 2005 draft policy supported the interpretation of the bypass provision in the draft policy along with the general approach of the draft policy, indicating that they thought the general framework of the approach was workable. Many of the commenters supporting the draft policy indicated that they believed the approach would reduce the health and environmental risks of wet weather discharges.

Some commenters opposed the approach because they believed that it was inappropriate to approve anticipated bypasses in a permit because it would allow insufficiently treated sewage to be discharged. Some of these commenters indicated that they believed that approval of bypasses in permits would ` legitimize' bypasses. EPA disagrees with these comments.

The policy strongly discourages reliance on peak wet weather diversions around secondary treatment units as a long term wet weather management approach at a POTW treatment plant serving sanitary sewer conveyance systems. Under the policy, permits would need to require that all discharges from POTW treatment plants serving sanitary sewer conveyance systems meet effluent limitations, including limits based on secondary treatment and any more stringent limitations necessary to meet water quality standards under all permitted flow conditions. Under the policy, NPDES agencies would evaluate whether the discharges that occur during bypasses provided under the NPDES permit need more stringent water quality based effluent limitations, and if so, what those limits would be. The policy promotes the highest possible treatment to the most peak wet weather flow and seeks to minimize diversions from secondary treatment to the maximum extent feasible. The policy recognizes that some POTW treatment plants may, under some wet weather conditions, need to divert a portion of the incoming peak flows around their DRAFT 4 August 4, 2006 secondary treatment units to prevent temporary loss of function of those treatment units. Currently, NPDES permits for facilities experiencing diversions may not be requiring adequate public notice, monitoring of discharges during bypass, evaluation of alternatives or conditions under which a diversion may be allowed, and implementation of practices to reduce reliance on peak wet weather diversions.

The peak flows policy is intended to use the NPDES permit process to employ a more comprehensive regulatory framework to minimize wet weather diversions to the extent feasible. The permitting process described in the policy has several key components, including ensuring the public is informed and has an opportunity to provide input; providing a format for identifying feasible alternatives to peak wet weather flow diversions; and clarifying the use of permits to ensure feasible alternatives are implemented. The policy clarifies that for a facility with a permit developed under today's policy in anticipation of bypasses, there would be a presumption applicable at the time of permit renewal against the continued use of diversions to manage peak wet weather flows.

Other commenters were concerned that the ` no feasible alternative' criterion of the bypass provision would be an inappropriate standard for blended discharges that meet permit limitations because it would be overly stringent and/ or unworkably subjective. Some of these commenters indicated that they thought that the lack of objective standards would result in conflicts between States and EPA and in national inconsistency.

EPA disagrees, and today's policy retains the proposed interpretation that the bypass regulation applies to all peak flow diversions at POTW treatment plants serving separate sanitary sewers. The policy goes on to provide an approach to address anticipated diversions at POTW treatment plants serving separate sanitary sewers where blended discharges meet permit limitations based on secondary treatment and any more stringent limitations necessary to meet water quality standards. Application of the bypass regulation, which has been in existence since 1979 1984 , to a POTW plant that meets limits based on secondary treatment is not overly stringent.

EPA also disagrees with the comment that the criteria in the bypass provisions are overly subjective. Today's policy provides a framework for determining whether peak wet weather flow diversions should be approved or denied in an NPDES permit. Approval of peak wet weather flows as anticipated bypasses under the policy is available only to permittees that demonstrate through a comprehensive analysis to the NPDES authority that the requirements of the bypass rule are met. This approach provides a relatively uniform national framework that also takes into account facility specific information. To implement this approach, EPA intends to work with NPDES permit authorities and others to identify issues where additional technical guidance would be appropriate. EPA will also review all NPDES permits seeking to apply this policy to peak wet weather flow diversions to ensure consistent implementation. for consistency.

B. Existing Permits DRAFT 5 August 4, 2006 Some commenters requested that EPA clarify how today's policy would apply to existing NPDES permits. Some of these commenters noted that in the past, some permits for discharges from POTWs that blended peak wet weather flows did not have language in the permit that specifically approved the wet weather diversion or blending of flows, although they may have believed the NPDES authority was aware of the practice at the facility because the permittee described the practice at the facility in the permit application or because the NPDES authority had other information. Some of these commenters indicated that they believed that the policy should not place any community in immediate non compliance merely because blending is not specifically addressed in the permit.

Substantive response to this comment necessarily would require evaluation of the language of a specific permit and the facts and circumstances at the particular facility. All NPDES permits are required to include the standard permit conditions published at 40 CFR 122.41 ( or more stringent or analogous requirements of authorized State programs), including the bypass provision. Thus, wet weather bypasses or diversions at facilities with permits that do not specifically approve bypasses at the facility are prohibited and the NPDES authority may enforce such conditions unless the criteria of 40 CFR 122.41( m)( 4) were met. Where the permittee demonstrates that the criteria at 40 CFR 122.41( m)( 4) have been met, EPA will not bring an enforcement action for the bypass. Where the status of wet weather bypasses or diversions at a facility is not clear under an existing permit, the POTW should seek clarification from the NPDES authority on the legal status of such diversions ( including the extent to which they may be within the scope of the authorization of section 402( k) of the CWA) covered by EPA's April 11, 1995 policy on the scope of permit authroization ( permit as a shield)) and the appropriate next steps to expeditiously implement this policy.

C. Requests for Clarifications The December 22, 2005, draft policy would not have applied to a variety of situations, including discharges or overflows prior to the headworks of the POTW treatment plant; dry weather diversions; diversions around primary or tertiary treatment units; or diverted flow that is not recombined with flow from the secondary treatment units prior to discharge. Some commenters requested that EPA clarify whether the bypass provision applied to diversions around advanced treatment or tertiary treatment units. Some of these commenters noted that some types of advanced treatment or tertiary treatment units are biological treatment units, and urged that the bypass provision should not apply to treatment units that are operated in manner to meet water quality based effluent limitations.

In response, EPA reiterates that today's policy focuses on peak wet weather diversions at POTW treatment plants serving separate sanitary sewer conveyance systems. Today's policy identifies a number of situations where the policy does not apply and approvals of anticipated bypasses would not be appropriate. The policy does not apply to discharges or overflows prior to the headworks of a POTW treatment plant; or to dry weather diversions; or to diversions around primary or diversions that are not DRAFT 6 August 4, 2006 recombined with flow from the secondary treatment units prior to discharge; or to treatment plants ( municipal or industrial) other than those serving separate sanitary sewer collection systems; and does not address diversions around tertiary treatment units that are separate from secondary treatment units. EPA encourages the use and permitting of technologies that are more advanced than or supplementary to secondary treatment where they produce a higher quality effluent. The policy indicates that the NPDES authority should take into consideration situations where a POTW treatment plant is using, or plans to use, technology that is more effective in baseline pollutant removal than is required to meet secondary treatment based permit limits.

Some commenters noted that in the discussion of approved anticipated bypasses in the December 22, 2005 draft policy, EPA only identified the ` no feasible alternative' criterion of the bypass and inappropriately excluded the other criteria that must be considered. EPA agrees with the commenter because the regulation is clear about its three criteria. The bypass provision at 40 CFR 122.41( m)( 4)( ii) provides that the Director of the NPDES program may approve an anticipated bypass, after considering its adverse effects, if the Director determines that it will meet the three conditions listed in the regulation, specifically that 1) bypass was unavoidable to prevent loss of life, personal injury, or severe property damage; 2) there were no feasible alternatives to the bypass; and 3) the permittee submitted the required notices. The policy has been corrected to clarify that each of the three criteria in the bypass provision, plus the consideration of adverse effects, would need to be implemented as contemplated under the policy.

Today's policy provides a clarification on a matter that was not addressed in the December 2005 draft policy upon which EPA invited public comment. The December 2005 draft proposed an interpretation of the term " no feasible alternatives" in 40 CFR 122.41( m)( 4)( i)( B) as it would apply to the treatment of certain peak flow wet weather discharges as anticipated bypasses under 40 CFR 122.41( m)( 4)( ii). Specifically, the interpretation addressed that flow that is anticipated to exceed the peak flow capacity of the secondary treatment unit( s), and to meet the other bypass criteria, even after implementation of the feasible technologies and approaches identified via the process outlined in the policy. For that flow, as in the draft policy, today's policy provides that a permitting authority could determine that the conditions of 122.41( m)( 4)( ii), including the need to show that no feasible alternatives were available, had been satisfied. The policy provides that, for those flows, the bypass provision allows for explicit approval as an anticipated bypass in the permit.

Based on a sentence in the December 2005 draft policy, a commenter asked for clarification on how EPA intended to treat those peak flow diversions that occurred while the permittee was implementing the feasible technologies and approaches in accordance with the permit. The draft policy included a sentence that read, " In NPDES permits with such implementation schedules, the approval of any anticipated bypass would be contingent upon the permittee's performance of the implementation schedule." The commenter sought clarification on the status of anticipated bypasses that occur during and prior to completion of the implementation schedule, particularly for those flows that would not need to occur after DRAFT 7 August 4, 2006 implementation of the feasible alternatives required in the permit. Today's policy provides that clarification.

The diversions to which the comment refers would not fall within the Agency's interpretation of section 122.41( m)( 4) that supports permit based approval of anticipated bypass. Such diversions that occur where feasible alternatives exist would not meet the requirement of 122.41( m)( 4)( i)( B) that " there were no feasible alternatives to the bypass." Therefore, they would not be approvable in a permit as anticipated bypasses under 122.41( m)( 4)( ii). Under today's policy, however, where a record is created that contains a comprehensive evaluation of feasible alternatives ( i. e., using the process outlined in the policy), and the permitting authority, imposes permit conditions requiring such alternatives to be implemented as expeditiously as is feasible, EPA believes the permitting process provides an appropriate framework for, as a matter of sound public policy, requiring implementation of those alternatives and moving the facility forward towards improved environmental and system performance. Accordingly, EPA will treat as a low enforcement priority those bypasses that occur while the POTW is adhering to the implementation schedule for feasible alternatives and any other permit conditions designed to implement the bypass rule. While a POTW is adhering to the implementation schedule for feasible alternatives and any other permit conditions designed to implement the bypass rule, EPA recognizes that the permittee's actions will be consistent with this policy and its objectives and will therefore act accordingly.

D. Other Issues A number of commenters, including several State NPDES authorities, raised concerns about the potential burdens of the utility analysis on small municipalities. Some of these commenters suggested that EPA should simplify the utility analysis discussed in the policy for small municipalities. In response, EPA believes that there is sufficient flexibility in the outline for the utility analysis in the policy to allow the permittee to tailor its utility analysis to the size and complexity of its sewage collection and treatment system.

IV. Policy Many municipalities currently experience situations in which high peak influent flows during significant wet weather events exceed the treatment capacity of existing secondary treatment units. In these situations, wet weather flows are sometimes diverted around secondary treatment units. The diverted flows are then either discharged directly to receiving waters or recombined with the flows from the secondary treatment units prior to discharge. EPA interprets existing regulations, specifically, the " bypass" regulation at 40 CFR 122.41( m), to apply in both circumstances and is restating this interpretation. Today's policy focuses on the second circumstance, specifically, peak flow wet weather diversions that are recombined prior to discharge. Today's policy provides an interpretation of the bypass provision under which diversions that would remain after full implementation of all feasible alternatives and meet other requirements of the bypass rule can be approved in a NPDES permit. DRAFT 8 August 4, 2006 Today's policy applies only to peak wet weather diversions around secondary treatment units that occur at publicly owned treatment works ( POTW) treatment plants that serve separate sanitary sewer systems. ( EPA previously explained the processes by which wet weather diversions can be approved in NPDES permits for POTW treatment plants serving combined sewer systems in the 1994 CSO Policy, 59 Fed Reg. 18,693 18,694 ( April 19, 1994).) Nothing in this policy addresses the requirements for POTW treatment plants serving combined sewer systems. Neither today's policy nor the CSO Policy addresses the appropriateness of approval of anticipated bypass outside of the municipal peak wet weather flow context.

In recent years there has been confusion regarding the regulatory status of peak wet weather flow diversions around secondary treatment units at POTW treatment plants serving separate sanitary sewer conveyance systems. In some cases, such diversions have been considered a bypass and held to the criteria of the NPDES bypass regulation at 40 C. F. R. 122.41( m). In other cases, structures for the diversion of peak wet weather flows around secondary treatment units at POTW treatment plants have been constructed, and in even fewer cases the diversions have been reflected in permits, without consideration of the bypass regulation criteria. While EPA recognizes that peak wet weather flow diversions around secondary treatment units at POTW treatment plants serving separate sanitary sewer conveyance systems may be necessary in some circumstances to prevent temporary loss of function of secondary treatment units, the Agency and stakeholders have been concerned for some time that peak wet weather flow diversions could have adverse environmental or public health impacts because of the higher expected pollutant load of diverted flows.

Accordingly, EPA strongly discourages reliance on peak wet weather flow diversions around secondary treatment units as a long term wet weather management approach at a POTW treatment plant serving separate sanitary sewer conveyance systems. Such diversions should be minimized to the maximum extent feasible taking into account the factors discussed in this policy. EPA anticipates that, over time, the need to undertake peak wet weather flow diversions at POTW treatment plants serving separate sanitary sewer conveyance systems can be eliminated from most systems in a variety of ways, such as by enhancing storage and treatment capacity and reducing sources of peak wet weather flow volume. EPA expects that aggressive efforts by POTW treatment plants operators in consultation with NPDES authorities can: lead to dramatic reductions in the volume and duration of peak wet weather flows; in most cases completely phase out diversions; and improve the treatment and quality of peak wet weather flow discharges. EPA also believes that the involvement of the general public will improve the assessment of various options to minimize peak wet weather flow diversions.

Today's policy applies only to NPDES permits issued after the date of the policy. In addition, the policy is limited in scope; it only applies ( 1) to peak flow wet weather diversions, ( 2) from POTW plants, ( 3) that serve separate sewer collection systems, and ( 4) that recombine the diverted peak flows prior to discharge. The policy describes the circumstances under which anticipated bypasses at these plants could be either approved or treated as approved denied as a DRAFT 9 August 4, 2006 result of the NPDES permitting process. The policy identifies the content of an appropriate utility analysis that POTWs should submit with their permit applications to facilitate development of appropriate permit conditions. The policy outlines the decision process involved in reviewing a utility analysis and determining whether approval of peak wet weather flow diversions is appropriate..

EPA's NPDES regulations prohibit bypass   defined as the intentional diversion of waste streams from any portion of the treatment facility   except in very limited circumstances. Section 122.41( m)( 4)( i) prohibits bypass, and EPA or the NPDES authority may take enforcement action against a permittee for bypass, unless:

( A) The bypass was unavoidable to prevent loss of life, personal injury, or severe property damage;

( B) There were no feasible alternatives to the bypass, such as the use of auxiliary treatment facilities, retention of untreated wastes, or maintenance during normal periods of equipment downtime; and ( C) The permittee submitted required notices.

Under section 122.41( m)( 4)( ii), the Director may approve an anticipated bypass, after considering its adverse effects, if the Director determines that the bypass will meet the criteria listed in subsection ( m)( 4)( i). Today's policy describes the circumstances under which anticipated bypasses that reflect the full implementation of feasible alternatives would be approved for the purposes of section 122.41( m)( 4)( ii) in the limited context of this policy.

Today's policy does not change EPA's interpretation of the bypass regulation as applied in United States v. City of Toledo, Ohio, 63 F. Supp. 2d 834 ( N. D. Ohio 1999). Thus, POTW treatment plants that fail to move forward to meet their obligations under this policy remain subject to the full scope of enforcement remedies for any violations. Furthermore, nothing in today's policy provides a basis to reopen existing enforcement remedies ( e. g., orders, decrees, or agreements) that address measures to reduce and/ or eliminate peak flow wet weather diversions. The utility analysis described below, however, should be useful to facilitate resolution of any pending matters that address such peak flow diversions.

Policy Applicable to Peak Flow Wet Weather Diversions at POTWs Serving Separate Sanitary Sewer Systems This policy explains how the NPDES authority should determine whether anticipated peak wet weather flow diversions, at POTW treatment plants serving separate sanitary sewer collection systems, which are recombined with flow from the secondary treatment units prior to discharge, should be approved or denied under 40 CFR 122.41( m)( 4)( ii). Under today's policy, if the NPDES authority determines, based on a utility analysis described in today's policy and DRAFT 10 August 4, 2006 any other available information, that the criteria of section 122.41( m)( 4)( i) will be met and, if the permit includes any more stringent limits necessary to meet water quality standards ( including when an anticipated bypasses occurs ( i. e., in order to take into account its adverse effects)), then the NPDES authority may provide for approval of anticipated bypass of peak wet weather flow diversions around secondary treatment units through the NPDES permitting process as described below.

This policy:

o Explains how EPA intends to apply the bypass regulation, specifically, 40 CFR 122.41( m)( 4), to peak wet weather flow diversions around secondary treatment units at POTW treatment plants serving separate sanitary sewer systems where the diverted flow is recombined with flow from the secondary treatment units prior to discharge; o Describes a utility analysis and relevant steps of the permit review process; o Identifies a framework within the permit process through which the criteria of the bypass rule can be evaluated for determining whether anticipated peak flow wet weather flow diversions at such POTW treatment plants serving separate sanitary sewer systems should to which this policy applies could be approved as anticipated bypasses; o Promotes use of measures to provide the highest possible treatment to the greatest possible peak wet weather flow; and o Promotes reporting and public notification of peak wet weather diversion events.

The policy is limited in scope. The policy:

o Does not apply to discharges or overflows prior to the headworks of a POTW treatment plant; or to dry weather diversions; or to diversions around primary or diversions that are not recombined with flow from the secondary treatment units prior to discharge; or to treatment plants ( municipal or industrial) other than those serving separate sanitary sewer collection systems; and o Does not address diversions around tertiary treatment units that are separate from secondary treatment units.

A combination of approaches can be used to achieve the goals of this policy. These approaches include:

o ensuring full utilization of available secondary treatment capacity; o reducing infiltration and inflow ( I/ I); o maximizing the use of the collection system for storage; o providing off line storage; and o enhancing secondary treatment capacity.

In cases where these approaches, alone or in combination, are not sufficient to enable a POTW treatment plant to process its peak wet weather flows through its secondary treatment DRAFT 11 August 4, 2006 units, a POTW treatment plant operator may have no feasible alternative to peak wet weather flow diversions around secondary treatment units. This policy sets forth a process for determining whether or not such feasible alternatives to peak wet weather flow diversions exist. If the NPDES authority determines that there are no feasible alternatives to peak wet weather flow diversions around secondary treatment units at the treatment plant using the analysis set forth in this policy, and the other conditions of the bypass regulation are met, including a showing that " the bypass was unavoidable to prevent loss of life, personal injury, or severe property damage" ( i. e., wash out), then the NPDES authority may approve peak wet weather flow diversions around secondary treatment units at a POTW treatment plant serving separate sanitary sewer conveyance systems as an anticipated bypass in accordance with 40 CFR 122.41( m). The only flow that can be approved as an anticipated bypass around secondary treatment units is flow that is anticipated to exceed the peak flow capacity of the secondary treatment unit( s) and that would cause severe property damage, i. e., wash out of that unit, even after implementation of the feasible technologies and approaches identified via the process outlined in this policy. The use of diversions around secondary treatment units at POTW treatment plants serving separate sanitary sewer conveyance systems to manage peak wet weather flows is not necessary in many cases and cannot be approved at flow levels below for diversions as to which if feasible alternatives are identified for those diversions through the analysis described herein or if the other elements of the bypass regulation are not met.

If feasible alternatives to avoid all anticipated bypasses are available during the permit term, such that there will be no need for diversions by or before the end of the permit term, then approval in the permit under section 122.41( m)( 4)( ii) would not be appropriate, rather the permit would only address the requirements to implement the alternatives, including a schedule, as discussed below.

Where the NPDES authority identifies feasible alternatives to the diversion, the permit is to include, based on 40 CFR 122.43( a), an implementation schedule with specific dates for implementing, as quickly as feasible, the technologies, upgrades and approaches identified and estimates of the associated flow volumes. This implementation schedule would be considered a permit condition as opposed to a schedule of compliance under 40 CFR 122.47.

Review of available feasible alternatives may result in a POTW identifying technologies, upgrades, or approaches that reduce peak wet weather flow diversions. As these technologies, practices, or improvements are implemented, diversions will typically occur at flow levels lower than diversions that would no longer occur after full implementation of alternatives. These diversions are not approved as anticipated bypasses at the time of permit issuance. However, the permitting authority's identification of an implementation schedule in the permit documents the available feasible alternatives to reduce peak wet weather flow diversions. Accordingly, EPA will treat as a low enforcement priority those bypasses that occur while While the POTW is adhering to the implementation schedule for feasible alternatives and any other permit conditions designed to implement the bypass rule, EPA recognizes that the permittee's actions will be consistent with this policy and its objectives and will therefore act accordingly. DRAFT 12 August 4, 2006 In the POTW NPDES permits with such implementation schedules developed pursuant to today's policy, the approval of any anticipated bypass would be contingent upon the permittee's performance of the interim milestones in the implementation schedule. It is therefore important that the permitting authority assure that the implementation schedule in the permit specifically identifies the feasible technologies, upgrades, and approaches ( i. e., measures and controls to be implemented ( and associated flow volumes)) to reduce peak flows as quickly as is feasible and that the schedule requires implementation of those alternatives as quickly as is feasible. The regulations at 40 CFR 122.43( a) provide for development and inclusion of such conditions in the permit.

A thoughtful public planning process at the local level is important to development and implementation of feasible alternatives that minimize or eliminate overflows in the collection system, minimize I/ I into the collection system, maximize treatment of all flows, and improve wet weather flow management. EPA recommends that POTW treatment plants operators work with their NPDES authorities and local communities to proactively minimize peak wet weather influent flow volume and improve effluent quality, reduce the frequency and volume of diversion events, and improve the structural integrity and capacity of collection systems and the reliability of POTW treatment plants.

On permit renewal, the presumption by the NPDES authority would be against the utility's continued use of diversions to manage peak wet weather flows. This presumption could be overcome by the POTW treatment plant operator demonstrating to the satisfaction of the NPDES authority that there are no feasible alternatives to continued diversions and that the other criteria of the bypass rule are met. Such a demonstration should include updating and submitting or resubmitting the utility analysis described in this policy, ensuring that the submission identifies any changes at the facility, progress made in performance of the implementation schedule and in peak wet weather flow reduction and treatment, and any other information available relevant to the need for diversions and the implications of re approving their use. Timely permit renewals for facilities that employ peak wet weather diversions around secondary treatment units at the POTW treatment plant should be a priority. Because of the importance of regular analysis of the ongoing need to utilize diversions at a particular facility, NPDES permits for facilities that employ or seek to employ peak wet weather diversions around secondary treatment units at their treatment plant should be timely renewed rather than administratively continued.

The determination of what constitutes a " peak wet weather event," during which the use of a peak wet weather diversion could be approved as an anticipated bypass under today's policy, will be a site specific determination. NPDES authorities should not approve as anticipated bypasses diversions at POTW treatment plants serving separate sanitary sewer conveyance systems during routine rain events. Approved anticipated bypasses should be limited to those diversions that are necessary due to extreme precipitation events, which would be determined on a community specific basis. EPA also cannot reasonably estimate or endorse an ` acceptable' DRAFT 13 August 4, 2006 number of anticipated bypasses ( e. g., fixed number per fixed time period). Such a one size fitsall approach would not recognize the site specific nature of peak wet weather diversions and could lead to excessive use of diversions in some communities. Rather, it is EPA's intention through this policy to provide a framework according to which POTW treatment plants operators, NPDES authorities, and the general public can evaluate what constitutes a peak wet weather event for a POTW treatment plant for which, in the specified context described in this policy, the requirements of the bypass rule are met and remaining peak wet weather diversions could be approved as anticipated bypasses. Among the factors that should influence that evaluation are the history of past diversions at a particular facility ( and the causes for the diversions), facility specific opportunities for eliminating or reducing diversions, and future considerations, such as emerging technical innovations.

In order to minimize potential adverse effects of diversions around secondary treatment even for peak wet weather diversions at a POTW treatment plant subject to this policy, additional technologies ( e. g., providing supplemental biological or physical/ chemical treatment) and approaches should be used to maximize treatment of diverted flows where feasible. EPA does not support NPDES authorities' approval of peak wet weather diversions around secondary treatment units at POTW treatment plants when the peak flows are largely due to poor collection system maintenance or the inadequate investment in or upgrades to treatment capacity.

Under this policy, NPDES authorities and POTW treatment plants operators should ensure that all flows that will be diverted from the secondary treatment units in peak wet weather events receive a minimum of primary treatment and any supplemental treatment or technology that is determined to be feasible. All discharges from POTW treatment plants serving separate sanitary sewer conveyance systems must meet effluent limitations, including the 85 percent removal requirement ( unless the discharge from the POTW treatment plant meets the requirements of 40 CFR 133.103( d) ( less concentrated influent wastewater for separate sanitary sewers)) and other secondary treatment requirements and any more stringent limitations necessary to meet water quality standards, including all applicable state anti degradation policies. Failure to meet effluent limitations is a permit violation. Failure to comply with the schedule for implementing feasible alternatives as specified in the POTW's NPDES permit is also a permit violation. NPDES authorities should ensure that discharges from the facility, including discharges when diverting, do not cause, have the reasonable potential to cause, or contribute to non attainment of any water quality standards, and if so, must include more stringent water quality based effluent limitations in the permit.

EPA recognizes that some POTW treatment plants may be implementing technologies that are more advanced than or supplementary to secondary treatment. The Agency encourages the use and permitting of such technologies ( e. g., membrane, tertiary) where they produce a higher quality effluent. In the case where a POTW treatment plant is using, or plans to use, technology that is more effective in baseline pollutant removal than is required to meet secondary treatment based permit limits, the NPDES authority should take that improved baseline performance into consideration when determining whether peak flow diversions at a DRAFT 14 August 4, 2006 POTW treatment plant are approved and under what conditions.

No Feasible Alternatives Analysis Process A permitting authority's determination, under this policy, as to whether or not there are feasible alternatives to peak wet weather diversions at a POTW treatment plant serving a separate sanitary sewer collection system should be made using the following inputs and criteria, which are derived from 40 CFR 122.41( m)( 4)( i)( A)( C) and 40 CFR 122.21( j). At the time of application for an NPDES permit ( new, modification, or renewal):

1. POTW treatment plants operators seeking approval of peak wet weather diversions at a treatment plant as an anticipated bypass should submit a comprehensive analysis ( utility analysis) to the NPDES authority that: a. documents current treatment plant design capacity for all treatment units, the maximum flow that can be processed through those units, and the feasibility of increasing such treatment capacity and related costs; b. estimates the frequency, duration, and volume of current wet weather diversions, and evaluates alternatives to reduce the frequency, duration, and volume of such occurrences and related costs; c. estimates future peak wet weather flows based upon information such as predicted climatic conditions, anticipated dry weather flows, projected treatment plant and collection system changes ( e. g., upgrades, extensions, deterioration), and evaluates options for reducing diversions based on these variables; d. assesses existing storage within the collection system or on site and options for enhanced utilization or expansion ( taking into account physical and technological considerations) of storage to reduce the frequency, duration, and volume of peak wet weather diversions, and the related costs; e. assesses other ways to reduce peak wet weather flow volumes, such as limiting collection system extensions and slug loadings from indirect dischargers, or water conservation or green infrastructure techniques; f. evaluates technologies , such as supplemental biological treatment, physical/ chemical treatment, ( e. g., ballasted flocculation, deep bed filtration, or membrane technology) that are or could be used to provide additional treatment to peak wet weather flows or peak wet weather diversions at the POTW treatment plant and the costs of implementing those technologies; g. evaluates the extent to which the permittee is maximizing its ability to reduce I/ I throughout the entire collection system ( i. e., not only the portions operated by the utility, but also portions operated by any municipal satellite community), including the use of existing legal authorities, potential improvements in the timing or quality of such efforts, and options for obtaining or expanding legal authorities to reduce I/ I from satellite collection systems; h. evaluates peak flow reductions obtainable through implementation of existing capacity, management, operations, and maintenance ( C MOM) programs and potential DRAFT 15 August 4, 2006 improvements in the timing or enhancement of those programs and the related costs; or, if no such program exists, reductions obtainable through the development and implementation of a C MOM program and the related costs; i. assesses the community's ability to fund the peak wet weather flow improvements discussed in the utility analysis, taking into consideration: current sewer rates, planned rate increases, other potential sources of federal, state, or local funds, and the costs, schedules, anticipated financial impacts to the community of other planned water and wastewater expenditures and other relevant factors, impacting the utility's rate base, using as a guide EPA's CSO Guidance for Financial Capability Assessment and Schedule Development, EPA 832 B 97 004; j. proposes a protocol for monitoring the total volume diverted, and the duration of each peak wet weather diversion event, and a protocol monitoring of the recombined flow at least once daily during diversions for all parameters for which the POTW treatment plant has daily effluent limitations or other requirements ( e. g., monitoring only requirements) and representative monitoring for other monitoring requirements of the permit; and k. projects the POTW treatment plant effluent improvements and other improvements in collection system and treatment plant performance that could be expected should the technologies, practices, and/ or other measures discussed in the utility analysis be implemented.

2. For any POTW treatment plant operator seeking approval through the NPDES permitting process for an anticipated bypass under this policy, the NPDES authority should:

a. make the utility analysis publicly available with other draft permit information for public review and comment; b. review and evaluate the utility analysis and require measures to be undertaken to provide the highest possible treatment to the greatest possible peak wet weather flow, taking into account the full range of economic, environmental, public health, and engineering considerations; c. based on review of a utility analysis and other relevant information, approve or deny the peak wet weather diversions based on the determination of whether: there are feasible alternatives to those diversions using the analysis set forth in this policy; the other provisions of the bypass regulation are met; and effluent limitations will be met at all times under all flow conditions; d. develop and incorporate conditions in the permit, including an implementation schedule, that require the POTW to implement the identified feasible technologies and approaches to reduce peak flows as quickly as the analysis indicates is feasible; e. include a permit provision requiring any POTW treatment plant operator that has an anticipated bypass to provide prior notice upon knowledge of the need for a peak wet weather diversion event to the NPDES authority consistent with 40 CFR 122.41( m)( 3); f. include a permit provision requiring the operator of any POTW treatment plant that has an anticipated bypass to monitor the recombined flow at least once daily during diversions for all parameters for which the POTW treatment plant has daily effluent DRAFT 16 August 4, 2006 limitations or other requirements ( e. g., monitoring only requirements), the total volume diverted, and the duration of the peak wet weather diversion event. For parameters for which the permit establishes non daily effluent limitations, include in the permit monitoring requirements sufficient to yield data representative of the final blended discharge, in order to ensure compliance with applicable effluent limitations. See 40 CFR 122.48( b). Where the permit establishes non daily effluent limitations or monitoring requirements for TSS, in order to be representative, the permit should require that TSS be measured during diversions; g. describe in the permit Fact Sheet prepared under 40 CFR 124.8( b) how the permitting authority determined what constitutes the peak wet weather event, the reasons for allowing any peak wet weather diversions, and all requirements or conditions applicable to peak wet weather diversions; h. ensure that permit load limitations account for the anticipated flow into secondary treatment units during both wet and dry weather conditions; i. include permit provisions for public notification ( e. g., via utility website) of the peak wet weather diversion event within 24 hours of the inception of each event; follow up public notification of the duration and volume of the event within 48 hours of its cessation; and for making readily available public access to for public review of the POTW treatment plant's operator's peak wet weather flow diversion practices and records ( i. e., monitoring data, duration and volume information) upon request; j. include permit provisions requiring the control authority with an approved pretreatment program to review, and revise if necessary, local pretreatment limits for indirect dischargers to take into account peak wet weather diversion events ( e. g., significant industrial users with batch discharging); k. if the discharge will be to sensitive receiving waters ( i. e., waters used for recreation; waters used as drinking water sources; waters containing shellfish beds; waters formally designated by state or federal authorities as requiring special consideration or protection; waters with threatened or endangered species), ensure that the impact of any peak wet weather diversion events on these waters is minimized and additional caution exercised as permit limitations and other conditions ( e. g., disinfection, notice to downstream water suppliers) are set; and l. rigorously review every POTW permit renewal request that anticipates continued peak wet weather diversions to ensure that a comprehensive utility analysis consistent with section 1 above is re submitted and re evaluated and that peak wet weather diversions are approved only when consistent with this policy.

3. EPA will:

a. use this policy in making NPDES permitting decisions for all POTW treatment plants serving separate sanitary sewer conveyance systems in non authorized states; b. review permits in NPDES authorized states within the timelines specified in 40 CFR 123.44 for POTW treatment plant operators for which the NPDES authorized state has prepared a draft permit anticipating peak flow diversions pursuant to this policy, to DRAFT 17 August 4, 2006 ensure that such permits are consistent with the regulatory applications in this policy; c. ensure that enforcement actions are taken, where appropriate, against POTW treatment plants operators that fail to move forward expeditiously to meet their legal obligations as determined consistent with this policy; and d. ensure that links and contact information for monitoring data concerning peak wet weather diversions at POTW treatment plants is available to the public on EPA's website; and e. create technical resources to assist POTWs, NPDES authorities, and citizens in implementing this policy. DRAFT 18 August 4, 2006 EPA will work to ensure municipalities and NPDES authorities implement this policy as soon as possible. This will protect human health and the environment by ensuring that municipal permittees employ all feasible alternatives when addressing wet weather diversions at POTWs served by sanitary sewer collection systems.

Dated:

Stephen L. Johnson Administrator


[Federal Register Volume 77, Number 209 (Monday, October 29, 2012)]
[Proposed Rules]
[Pages 65506-65508]
[FR Doc No: 2012-26477]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. FAA-2012-1109; Directorate Identifier 2011-NM-172-AD]
RIN 2120-AA64

Airworthiness Directives; The Boeing Company Airplanes

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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

SUMMARY: We propose to supersede an existing airworthiness directive
(AD) that applies to certain The Boeing Company Model 757-200 and -
200PF series airplanes. The existing AD currently requires modification
of the nacelle strut and wing structure, and repair of any damage found
during the modification. Since we issued that AD, a compliance time
error involving the optional threshold formula was discovered, which
could allow an airplane to exceed the acceptable compliance time for
addressing the unsafe condition. This proposed AD would specify a
maximum compliance time limit that overrides the optional threshold
formula results. We are proposing this AD to prevent fatigue cracking
in primary strut structure and consequent reduced structural integrity
of the strut.

DATES: We must receive comments on this proposed AD by December 13,
2012.

ADDRESSES: You may send comments, using the procedures found in 14 CFR
11.43 and 11.45, by any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the instructions for submitting comments.
     Fax:<PHONE_NUMBER>.
     Mail: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue SE., Washington, DC 20590.
     Hand Delivery: Deliver to Mail address above between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays.
    For service information identified in this proposed AD, contact
Boeing Commercial Airplanes, Attention: Data & Services Management,
P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; phone:<PHONE_NUMBER>,
extension 1; fax:<PHONE_NUMBER>; Internet: https://www.myboeingfleet.com. You may review copies of the referenced service
information at the FAA, Transport Airplane Directorate, 1601 Lind
Avenue SW., Renton, WA. 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 proposed AD, the regulatory
evaluation, any comments received, and other information. The street
address for the Docket Office (phone:<PHONE_NUMBER>) is in the ADDRESSES
section. Comments will be available in the AD docket shortly after
receipt.

FOR FURTHER INFORMATION CONTACT: Nancy Marsh, Aerospace Engineer,
Airframe Branch, ANM-120S, Seattle Aircraft Certification Office (ACO),
FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone:<PHONE_NUMBER>;
fax:<PHONE_NUMBER>; email<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Comments Invited

    We invite you to send any written relevant data, views, or
arguments about this proposed AD. Send your comments to an address
listed under the ADDRESSES section. Include ``Docket No. FAA-2012-1109;
Directorate Identifier 2011-NM-172-AD'' at the beginning of your
comments. We specifically invite comments on the overall regulatory,
economic, environmental, and energy aspects of this proposed AD. We
will consider all comments received by the closing date and may amend
this proposed AD because of those comments.
    We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We
will also post a report summarizing each substantive verbal contact we
receive about this proposed AD.

Discussion

    On August 29, 2003, we issued AD 2003-18-05, Amendment 39-13296 (68
FR 53496, September 11, 2003), for certain Model 757 series airplanes
powered by Pratt & Whitney engines. That AD requires modification of
the nacelle strut and wing structure, and repair of any damage found
during the modification. That AD resulted from reports indicating that
the actual operational loads applied to the nacelle are higher than the
analytical loads that were used during the initial design. Subsequent
analysis and service history, which included numerous reports of
fatigue cracking on certain strut and wing structure, indicated that
fatigue cracking can occur on the primary strut structure before an
airplane reaches its design service objective. We issued that AD to
prevent fatigue cracking in primary strut structure and consequent
reduced structural integrity of the strut.

Actions Since Existing AD (68 FR 53496, September 11, 2003) Was Issued

    Since we issued AD 2003-18-05, Amendment 39-13296 (68 FR 53496,
September 11, 2003), an error in the optional threshold formula of the
compliance time was discovered. If the optional threshold formula is
used, it could result in an unacceptable compliance time for addressing
the unsafe condition.

Relevant Service Information

    AD 2003-18-05, Amendment 39-13296 (68 FR 53496, September 11,
2003), refers to Boeing Service Bulletin 757-54-0034, dated May 14,
1998; or Revision 1, dated October 11, 2001; as the appropriate source
of service information for modifying the nacelle strut and wing
structure. Boeing has since revised this service bulletin. We reviewed
Boeing Service Bulletin 757-54-0034, Revision 2, dated May 7, 2009.
This service bulletin specifies a compliance time that limits the
results from the optional threshold compliance time formula to within
eight years from the issuance date of this service bulletin.

FAA's Determination

    We are proposing 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 the same type design.

Proposed AD Requirements

    This proposed AD would retain all requirements of AD 2003-18-05,
Amendment 39-13296 (68 FR 53496, September 11, 2003). This proposed AD
would reduce certain compliance times. The optional threshold formula
method is limited to within eight years after the effective date of the
AD. This proposed

AD would also require accomplishing the actions specified in the
service information described previously, except as discussed under
``Differences Between the Proposed AD and the Service Information.''

Change to Existing AD (68 FR 53496, September 11, 2003)

    This proposed AD would retain all requirements of AD 2003-18-05,
Amendment 39-13296 (68 FR 53496, September 11, 2003). Since AD 2003-18-
05 was issued, the AD format has been revised, and certain paragraphs
have been rearranged. As a result, the corresponding paragraph
identifiers have changed in this proposed AD, as listed in the
following table:

                      Revised Paragraph Identifiers
------------------------------------------------------------------------
   Requirement in AD 2003-18-05,
 Amendment 39-13296 (68 FR 53496,    Corresponding  requirement in this
        September 11, 2003)                      proposed AD
------------------------------------------------------------------------
 paragraph (a)                       paragraph (g)
 paragraph (b)                       paragraph (h)
 paragraph (c)                       paragraph (i)
 paragraph (d)                       paragraph (j)
------------------------------------------------------------------------

Differences Between the Proposed AD and the Service Information

    Boeing Service Bulletin 757-54-0034, Revision 2, dated May 7, 2009,
specifies to contact the manufacturer for instructions on how to repair
certain conditions, but this proposed AD would require repairing those
conditions in one of the following ways:
     In accordance with a method that we approve; or
     Using data that meet the certification basis of the
airplane, and that have been approved by the Boeing Commercial
Airplanes Organization Designation Authorization (ODA) whom we have
authorized to make those findings.

Costs of Compliance

    We estimate that this proposed AD affects 278 airplanes of U.S.
registry.
    We estimate the following costs to comply with this proposed AD:

                                                 Estimated Costs
----------------------------------------------------------------------------------------------------------------
                                                                                Cost per      Cost on U.S.
                Action                         Labor cost           Parts cost        product        operators
----------------------------------------------------------------------------------------------------------------
Modification [retained actions from AD  800 work-hours x $85 per              $0         $68,000     $18,904,000
 2003-18-05, Amendment 39[dash]13296     hour = $68,000.
 (68 FR 53496, September 11, 2003)].
----------------------------------------------------------------------------------------------------------------

    The new requirements of this proposed AD add no additional economic
burden.
    According to the manufacturer, some of the costs of this proposed
AD may be covered under warranty, thereby reducing the cost impact on
affected individuals. We do not control warranty coverage for affected
individuals. As a result, we have included all costs in our cost
estimate.

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 have determined that this proposed AD would not have federalism
implications under Executive Order 13132. This proposed AD would 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 the proposed
regulation:
    (1) Is not a ``significant regulatory action'' under Executive
Order 12866,
    (2) Is not a ``significant rule'' under the 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.

The Proposed Amendment

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

PART 39--AIRWORTHINESS DIRECTIVES

    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]

    2. The FAA amends Sec.  39.13 by removing airworthiness directive
(AD) 2003-18-05, Amendment 39-13296 (68 FR 53496, September 11, 2003),
and adding the following new AD:

The Boeing Company: Docket No. FAA-2012-1109; Directorate Identifier
2011-NM-172-AD.

(a) Comments Due Date

    The FAA must receive comments on this AD action by December 13,
2012.

(b) Affected ADs

    This AD supersedes AD 2003-18-05, Amendment 39-13296 (68 FR
53496, September 11, 2003).

(c) Applicability

    This AD applies to The Boeing Company Model 757-200 and -200PF
series airplanes, certificated in any category, line numbers 1
through 735 inclusive, powered by Pratt & Whitney engines.

(d) Subject

    Joint Aircraft System Component (JASC)/Air Transport Association
(ATA) of America Code 54, Nacelles/Pylons.

(e) Unsafe Condition

    This AD was prompted by reports indicating that the actual
operational loads applied to the nacelle are higher than the
analytical loads that were used during the initial design.
Subsequent analysis and service history, which includes numerous
reports of fatigue cracking on certain strut and wing structure,
indicated that fatigue cracking can occur on the primary strut

structure before an airplane reaches its design service objective.
We are issuing this AD to prevent fatigue cracking in primary strut
structure and consequent reduced structural integrity of the strut.

(f) Compliance

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

(g) Retained Modification, With New Service Information and Reduced
Compliance Time

    This paragraph restates the requirements of paragraph (a) of AD
2003-18-05, Amendment 39-13296 (68 FR 53496, September 11, 2003),
with new service information and a reduced compliance time. Modify
the nacelle strut and wing structure on both the left and right
sides of the airplane, in accordance with Boeing Service Bulletin
757-54-0034, dated May 14, 1998; Boeing Service Bulletin 757-54-
0034, Revision 1, dated October 11, 2001; or Boeing Service Bulletin
757-54-0034, Revision 2, dated May 7, 2009; at the later of the
times specified in paragraph (g)(1) or (g)(2) of this AD. As of the
effective date of this AD, only Boeing Service Bulletin 757-54-0034,
Revision 2, dated May 7, 2009, may be used to accomplish the actions
required by this paragraph.
    (1) At the earlier of the times specified in paragraphs
(g)(1)(i) and (g)(1)(ii) of this AD.
    (i) Prior to the accumulation of 37,500 total flight cycles.
    (ii) At the later of the times specified in paragraphs
(g)(1)(ii)(A) or (g)(1)(ii)(B) of this AD.
    (A) Within 20 years since the date of manufacture.
    (B) Within the compliance time calculated using the optional
threshold formula described in Boeing Service Bulletin 757-54-0034,
Revision 2, dated May 7, 2009, or within 8 years after the effective
date of this AD, whichever occurs first.
    (2) Within 3,000 flight cycles after November 13, 2000 (the
effective date of AD 2000-20-09, Amendment 39-11920 (65 FR 59703,
October 6, 2000)).

(h) Retained Concurrent Requirements, With New Service Information

    This paragraph restates the requirements of paragraph (b) of AD
2003-18-05, Amendment 39-13296 (68 FR 53496, September 11, 2003),
with new service information. Except as provided by paragraph (j) of
this AD: Prior to or concurrently with the accomplishment of the
modification of the nacelle strut and wing structure required by
paragraph (g) of this AD, accomplish the actions specified in Boeing
Service Bulletin 757-54-0027, Revision 1, dated October 27, 1994;
and Boeing Service Bulletin 757-54-0036, dated May 14, 1998, or
Boeing Service Bulletin 757-54-0036, Revision 1, dated July 31,
2006; as applicable; in accordance with those service bulletins. As
of the effective date of this AD, use only Boeing Service Bulletin
757-54-0036, Revision 1, dated July 31, 2006, to accomplish the
requirements of this paragraph.

(i) Retained Repair, With New Service Information

    This paragraph restates the requirements of paragraph (c) of AD
2003-18-05, Amendment 39-13296 (68 FR 53496, September 11, 2003),
with new service information. If any damage to airplane structure is
found during the accomplishment of the modification required by
paragraph (g) of this AD, and Boeing Service Bulletin 757-54-0034,
dated May 14, 1998; Boeing Service Bulletin 757-54-0034, Revision 1,
dated October 11, 2001; or Boeing Service Bulletin 757-54-0034,
Revision 2, dated May 7, 2009; specifies to contact Boeing for
appropriate action: Before further flight, repair the damage using a
method approved in accordance with the procedures specified in
paragraph (k) of this AD.

(j) Retained Modification, With New Service Information

    This paragraph restates the requirements of paragraph (d) of AD
2003-18-05, Amendment 39-13296 (68 FR 53496, September 11, 2003),
with new service information. Modify the nacelle strut (including
replacing the upper link with a new, improved part, and modifying
the wire support bracket attached to the upper link), in accordance
with Boeing Service Bulletin 757-54-0036, dated May 14, 1998; or
Boeing Service Bulletin 757-54-0036, Revision 1, dated July 31,
2006; at the earlier of the times specified in paragraphs (j)(1) and
(j)(2) of this AD. As of the effective date of this AD, use only
Boeing Service Bulletin 757-54-0036, Revision 1, dated July 31,
2006, to accomplish the requirements of this paragraph.
    (1) Prior to or concurrently with accomplishment of the
modification of the nacelle strut and wing structure required by
paragraph (g) of this AD.
    (2) Prior to the accumulation of 27,000 total flight cycles (for
Model 757-200 series airplanes) or 29,000 total flight cycles (for
Model 757-200PF series airplanes), or within 2 years after October
16, 2003 (the effective date of AD 2003-18-05, Amendment 39-13296
(68 FR 53496, September 11, 2003)), whichever is later.

(k) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Seattle Certification Office (ACO), 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.
Information may be emailed to<EMAIL_ADDRESS>    (2) Before using any approved AMOC, notify your appropriate
principal inspector, or lacking a principal inspector, the manager
of the local flight standards district office/certificate holding
district office.
    (3) An AMOC that provides an acceptable level of safety may be
used for any repair required by this AD if it is approved by the
Boeing Commercial Airplanes Organization Designation Authorization
(ODA) that has been authorized by the Manager, Seattle ACO, to make
those findings. For a repair method to be approved, the repair must
meet the certification basis of the airplane and the approval must
specifically refer to this AD.
    (4) AMOCs approved previously in accordance with AD 2003-18-05,
Amendment 39-13296 (68 FR 53496, September 11, 2003), are approved
as AMOCs for the corresponding provisions of this AD.

(l) Related Information

    (1) For more information about this AD, contact Nancy Marsh,
Aerospace Engineer, Airframe Branch, ANM-120S, Seattle Aircraft
Certification Office, FAA, 1601 Lind Avenue SW., Renton, WA 98057-
3356; phone:<PHONE_NUMBER>; fax:<PHONE_NUMBER>; email:
<EMAIL_ADDRESS>    (2) For service information identified in this AD, contact
Boeing Commercial Airplanes, Attention: Data & Services Management,
P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; phone: 206-544-
5000, extension 1; fax:<PHONE_NUMBER>; Internet: https://www.myboeingfleet.com. You may review copies of the referenced
service information at the FAA, Transport Airplane Directorate, 1601
Lind Avenue SW., Renton, WA. For information on the availability of
this material at the FAA, call<PHONE_NUMBER>.

    Issued in Renton, Washington, on October 16, 2012.
John P. Piccola,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 2012-26477 Filed 10-26-12; 8:45 am]
BILLING CODE 4910-13-P