[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: 40CFR57.304]

[Page 141-142]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
 
PART 57--PRIMARY NONFERROUS SMELTER ORDERS--Table of Contents
 
          Subpart C--Constant Controls and Related Requirements
 
Sec. 57.304  Bypass, excess emissions and malfunctions.

    (a) Definition of excess emissions. For the purposes of this 
subpart, any emissions greater than those permitted by the NSO 
provisions established under Sec. 57.302 (performance level of interim 
constant controls) or Sec. 57.303 (plantwide emission limitation) of 
this subpart shall constitute excess emissions. Emission of any gas 
stream identified under Sec. 57.301 (a), (b), (c), (d) or (e) of this 
subpart that is not treated by a sulfur dioxide constant control system 
shall also constitute an excess emission under this subpart.
    (b) The excess emission report. Each NSO shall require the smelter 
to report all excess emissions to the issuing agency, as provided in 
Sec. 57.305(b). The report shall include the following:
    (1) Identity of the stack or other emission points where the excess 
emissions occurred;
    (2) Magnitude of the excess emissions expressed in the units of each 
applicable emission limitation, as well as the operating data, 
documents, and calculations used in determining the magnitude of the 
excess emissions;
    (3) Time and duration of the excess emissions;
    (4) Identity of the equipment causing the excess emissions;
    (5) Nature and cause of such excess emissions;
    (6) Steps taken to limit the excess emissions, and when those steps 
were commenced;
    (7) If the excess emissions were the result of a malfunction, the 
steps taken to remedy the malfunction and to prevent the recurrence of 
such malfunction; and
    (8) At the smelter owner's election, the demonstration specified in 
paragraph (c) of this section.
    (c) Malfunction demonstration. Except as provided in 
Sec. 57.302(e)(2) or in paragraph (d) or (e) of this section, any excess 
emission shall be a violation of the NSO unless the owner demonstrates 
in the excess emissions report required under paragraph (b) of this 
section that the excess emission resulted from a malfunction (or an 
unavoidable start up and shut down resulting from a malfunction) and 
that:
    (1) The air pollution control systems, process equipment, or 
processes were at all times maintained and operated, to the maximum 
extent practicable, in a manner consistent with good practice for 
minimizing emissions;
    (2) Repairs were made as expeditiously as practicable, including the 
use of off-shift labor and overtime;
    (3) The amount and duration of the excess emissions were minimized 
to the maximum extent practicable during periods of such emissions; and

[[Page 142]]

    (4) The excess emissions were not part of a recurring pattern 
indicative of serious deficiencies in, or inadequate operation, design, 
or maintenance of, the process or control equipment.
    (d) Scheduled maintenance exception. Excess emissions occurring 
during scheduled maintenance shall not constitute violations of the NSO 
to the extent that:
    (1) The expected additional annual sulfur dioxide removal by any 
control system (including associated process changes) for which 
construction had not commenced (as defined in 40 CFR 60.2 (g) and (i)) 
as of August 7, 1977 and which the smelter owner agrees to install and 
operate under subpart F, would have offset such excess emissions if the 
system had been in operation throughout the year in which the 
maintenance was performed;
    (2) The system is installed and operated as provided in the NSO 
provisions established under subpart F; and
    (3) The system performs at substantially the expected efficiency and 
reliability subsequent to its initial break-in period.
    (e) An NSO may provide that excess emissions which occur during acid 
plant start-up as the result of the cooling of acid plant catalyst due 
to the unavailability of process gas to an acid plant during a prolonged 
SCS curtailment or scheduled maintenance are not excess emissions. If 
the NSO does so provide, it shall also require the use of techniques or 
practices designed to minimize these excess emissions, such as the 
sealing of the acid plant during prolonged curtailments, the use of 
auxiliary heat or SO2 injected during the curtailment, or the 
preheating of the acid plant before start-up of the process equipment it 
serves.
    (f) Requirements for a smelter with constant controls that applies 
for a waiver.
    (1) If a smelter that has some interim constant controls applies for 
a waiver in accordance with subpart H, the following requirements shall 
apply pending action on the waiver application and following final 
action granting or approving a waiver:
    (i) The NSO shall require the smelter to implement maintenance and 
operation measures designed to reduce to the maximum extent feasible the 
potential for bypass of existing interim constant controls.
    (ii) Upon application for a waiver under subpart H, the smelter 
shall submit to the issuing agency for its approval and to EPA proposed 
maintenance and operation measures for compliance with the requirements 
of paragraph (i).
    (iii) The remainder of this subpart shall apply except that: (A) The 
emission limitations required under this subpart shall be based only on 
existing constant control equipment as upgraded through the improved 
maintenance and operation required by this paragraph, and (B) bypass of 
existing controls shall not constitute excess emissions, provided the 
maintenance and operation requirements and emission limitations 
prescribed by the NSO are satisfied.
    (2) After any denial of a waiver by the issuing Agency, or any 
disapproval by EPA of a waiver granted by the issuing agency, the NSO 
shall be amended consistent with the requirements of this subpart and 
Sec. 57.702.