[Code of Federal Regulations]
[Title 40, Volume 5]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR57.201]

[Page 135-137]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
 
PART 57--PRIMARY NONFERROUS SMELTER ORDERS--Table of Contents
 
             Subpart B--The Application and the NSO Process
 
Sec. 57.201  Where to apply.


    Any eligible smelter may apply for an NSO to the appropriate EPA 
Regional Office or to the appropriate State or local air pollution 
control agency.
    (a) When application is made to EPA, all parts of the application 
required to be submitted under this subpart shall be sent directly to 
the Director, Stationary Source Compliance Division (EN-341), U.S. 
Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460, Attention: Confidential Information Unit. In 
addition, the smelter owner shall send a copy of the application, except 
that part required to be submitted under Sec. 57.203(b) (eligibility), 
directly to the appropriate EPA Regional Office.
    (b) When application is made to the appropriate State or local 
agency, the smelter owner shall submit one complete copy of all parts of 
the application required to be submitted under this subpart to that 
agency, in addition to the application requirements contained in 
paragraph (a) of this section. If the smelter owner is requesting an 
advance eligibility determination pursuant to Sec. 57.203(b), such 
request must be made in writing and shall accompany the copy of the 
application being sent to the Director of the Stationary Source 
Compliance Division of the Environmental Protection Agency.
    (c) If the smelter owner is requesting a waiver of the interim 
constant control requirement of Sec. 57.301, such request must be sent 
directly to the Director, Stationary Source Compliance Division, at the 
time of application, in accordance with Sec. 57.802.
    (d) The NSO Process. (1) A smelter desiring an NSO shall apply for 
an NSO by submitting an application under subpart B including the 
financial information required in appendix A and including the 
information necessary to make the determinations required by this 
subparagraph and Sec. 57.201(d)(2). The issuing agency shall analyze the 
financial information according to the financial eligibility test 
prescribed by subpart A and described in appendix A.

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The issuing Agency shall then determine whether the smelter is able to 
comply with its SIP on or before the date required in the SIP by 
installing adequately demonstrated technology which is reasonably 
available. See also Sec. 57.102(a)(3). If the test demonstrates that 
adequately demonstrated technology is not reasonably available to the 
smelter to allow it to comply with the SIP by the required compliance 
date, the smelter is eligible for an NSO.
    (2)(i) If the smelter is determined to be eligible for an NSO under 
paragraph (d)(1) of this section, the issuing Agency shall apply the 
appendix A financial eligibility tests again before issuing an NSO in 
order to determine if the smelter can comply with its SIP requirements 
on or before January 1, 1988 by installing adequately demonstrated 
technology which is reasonably available.
    (ii) If application of the tests shows that the smelter could comply 
by or before January 1, 1988, the issuing agency shall notify the 
smelter of this determination, and shall not issue an NSO to the smelter 
unless the NSO contains a SIP compliance schedule meeting the 
requirements of Sec. 57.705. Such a compliance schedule must provide for 
compliance with the smelter's SO2 SIP as expeditiously as 
practicable and in no case later than January 1, 1988. A smelter must 
submit to the issuing agency information necessary to determine a 
compliance schedule meeting the requirements of Sec. 57.705. This 
information shall be submitted by a smelter within thirty days after the 
smelter is notified by the issuing agency that a SIP compliance schedule 
is required. The Administrator may consider an NSO application to be 
withdrawn for SIP enforcement purposes if a smelter fails to submit such 
information within the time required under this paragraph.
    (iii) If no adequately demonstrated technology is found to be 
reasonably available to enable a smelter to comply by January 1, 1988, 
it would be excused from the compliance schedule requirement in 
Sec. 57.201(d)(2)(ii), but it would be subject to reevaluation of its 
ability to comply by that date at any time during the term of the NSO. 
(See Sec. 57.201(d)(3)).
    (3) At any time during the term of an NSO which does not contain a 
SIP compliance schedule, EPA or the issuing agency may reevaluate the 
availability of technology to the smelter. If EPA or the issuing agency 
determines that adequately demonstrated technology is reasonably 
available to permit the smelter to comply with its SIP by or before 
January 1, 1988, the NSO shall be amended within 3 months time after 
such determination. The amendment shall require compliance with all SIP 
requirements by or before January 1, 1988, and shall include a 
compliance schedule meeting the requirements of Sec. 57.705. The 
determination that adequately demonstrated technology is reasonably 
available shall be made by reapplying the same appendix A financial 
eligibility tests required by subpart B, updated by economic data 
reflecting current operating conditions and currently demonstrated 
control technology. Any such determination and amendment shall be 
governed by the provisions of this part and section 119 of the Clean Air 
Act.
    (4) Notice and opportunity for public hearing in accordance with 
section 119 of the Clean Air Act must be provided before issuance of any 
NSO.
    (e) A smelter that does not have any constant SO2 
controls or whose existing constant SO2 controls when in full 
operation and optimally maintained are not sufficient to treat all 
strong SO2 streams may apply for a waiver of the requirements 
of subpart C to install interim constant controls by submitting an 
application under subpart H. A waiver may be granted only with respect 
to the requirement to eliminate bypass of constant controls through the 
installation of new constant control equipment, not with respect to the 
requirements for optimum maintenance and operation of existing 
equipment. EPA shall then determine the smelter's ability to afford 
installation of the required additional interim constant SO2 
control equipment at the smelter based on financial eligibility 
information analyzed according to the financial test prescribed in 
appendix A. A waiver of the requirement for additional interim constant 
controls will

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be granted if EPA determines in accordance with the procedures of 
subpart H that imposition of this requirement would necessitate closure 
of the smelter for at least one year.