[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: 40CFR57.802]

[Page 153-154]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
 
PART 57--PRIMARY NONFERROUS SMELTER ORDERS--Table of Contents
 
Subpart H--Waiver of Interim Requirement for Use of Continuous Emission 
                          Reduction Technology
 
Sec. 57.802  Request for waiver.

    (a) General. (1) Each smelter owner requesting a waiver shall 
complete, sign, and submit appendix A (Test for Eligibility for Interim 
Waiver). Copies of appendix A may be obtained from any EPA Regional 
Administrator, or from the Director, Stationary Source Compliance 
Division (EN-341), U.S. Environmental Protection Agency, 1200 
Pennsylvania Ave., NW., Washington,

[[Page 154]]

DC 20460. Claims of confidentiality shall be made as provided in 
Sec. 57.203.
    (2) The smelter owner shall append to the completed and signed 
appendix A full copies of all documents, test results, studies, reports, 
scientific literature and assessments required by appendix A. To the 
extent that the material consists of generally available published 
material, the smelter owner may cite to the material in lieu of 
appending it to appendix A. The smelter owner shall specificially 
designate those portions of any documents relied upon and the facts or 
conclusions in appendix A to which they relate.
    (b) Effect of submitting incomplete application. (1) The 
Administrator, or a person designated by him to review applications for 
waivers, may advise the smelter owner in writing whenever he determines 
that additional information is needed in order to make the waiver 
eligibility determinations required by section 119(d)(2) of the Act. The 
smelter owner shall promptly supply such information. All additional 
information requested under this paragraph and filed in the manner 
required by paragraph (d) shall be deemed part of appendix A.
    (2) Failure to comply with the requirements of paragraphs (a) and 
(b)(1) of this section shall be grounds for denial of the requested 
waiver.
    (c) Time for requesting waivers. Any request for a waiver must be 
submitted to the Administrator by the smelter owner at the time of the 
application for an NSO from the State or the Administrator, as the case 
may be. Where a smelter was issued a second period NSO by a State before 
these regulations went into effect, a request for a waiver shall be made 
and a completed appendix A shall be submitted, within sixty days of the 
effective date of these regulations, unless an extension is granted by 
the Administrator, or his designee, for good cause.
    (d) Submission of request. A copy of appendix A (plus attachments) 
which has been completed for the purpose of requesting a waiver of 
constant control requirements shall be filed with the Administrator, 
addressed as follows: Director, Stationary Source Compliance Division 
(EN-341), U.S. Environmental Protection Agency, 1200 Pennsylvania Ave., 
NW., Washington, DC 20460, Attn: Confidential Information Unit.
    (e) Eligibility. A smelter shall be eligible for consideration under 
this subpart only if it establishes that (1) its existing strong stream 
controls, if any, lack the capacity while in full operation to treat all 
strong stream sulfur dioxide emissions and (2) bypass of strong stream 
controls due to excess strong stream sulfur dioxide emissions cannot be 
avoided with improved operation and maintenance of existing strong 
stream controls and process equipment.
    (f) Criteria for decision. The Administrator shall grant or approve 
a waiver, whichever is appropriate, for any eligible smelter as to which 
he finds, in accordance with the methods and procedures specified in 
appendix A, that:
    (1) The higher of the two net present values of future cash flows 
completed under the two alternative sets of assumptions set forth in the 
instructions to schedule D.6 in appendix A in less than liquidation 
(salvage) value; or
    (2) The smelter's average variable costs at all relevant levels of 
production (after installation of interim constant control equipment) 
would exceed the weighted average price of smelter output for one year 
or more.