Appendix — National-Southwire Aluminum Co. v. United States Environmental Protection Agency

Supreme Court, US.

@

88-315 FILED

re ge OR

| JOSEPH F. SPANICL, 5%

aes CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

NATIONAL-SOUTHWIRE ALUMINUM COMPANY,

Petitioner,

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY,

LEE A. THOMAS, Administrator, and

JACK E. RAVEN, Regional Administrator,

Respondents.

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

APPENDIX B TO

PETITION FOR WRIT OF CERTIORARI

Chester R. Babst Ili, Esquire

Babst, Calland, Clements & Zomnir, P.C.

Two Gateway Center

Pittsburgh, Pennsylvania 15222

(412) 394-5400

Counsel of Record for Petitioner

National-Southwire Aluminum Company

No.

NATIONAL-SOUTHWIRE ALUMINUM COMPANY,

Petitioner,

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY,

LEE A. THOMAS, Administrator, and

JACK E. RAVEN, Regional Administrator,

Respondents.

APPENDIX B TO PETITION FOR WRIT OF CERTIORARI

Petitioner, National-Southwire Aluminum

Company, by its attorneys Babst, Calland, Clements &

Zomnir, P.C., files the following Appendix B for the

above-captioned Petition for Writ of Certiorari.

Led submitted,

Chester R. Babst Ill, Esquire

Babst, Calland, Clements & Zomnir, P.C.

Two Gateway Center

Pittsburgh, Pennsylvania 15222

(412) 394-5400

Counsel of Record for Petitioner

National-Southwire Aluminum Company

TABLE OF CONTENTS

APPENDIX B Page

Clean Air Act, Section 111 ............... 30a

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Standards of Performance for New Stationary Sources

Sec. 111. (a) For purposes of this

section:

(1) The term “standard of performance”

means --

(A) with respect to any air pollutant emitted

from a category of fossil fuel fired stationary sources

to which subsection (b) applies, a standard --

(i) establishing allowable emission

limitations for such category of sources,

and

(ii) requiring the achievement of a

percentage reduction in the emissions

from such category of sources from the

emissions which would have resulted from

the use of fuels which are not subject to

treatment prior to combustion,

(B) with respect to any air pollutant

emitted from a category of stationary sources

(other than fossil fuel fired sources) to which

subsection (b) applies, a standard such as that

referred to in subparagraph (A)(i); and

(C) with respect to any air pollutant

emitted from a particular source to which

subsection (d) applies, a standard which the

State (or the Administrator under the conditions

specified in subsection (d)(2)) determines is

applicable to that source and which reflects the

degree of emission reduction achievable

through the application of the best system of

continuous emission reduction which a

into consideration the cost of achieving suc

emission reduction, and any nonair quality

health and environmental impact and energy

30 a

requirements) the Administrator determines has

been adequately demonstrated for that

category of sources.

For the purpose of subparagraphs (A) (i) and (ii) and

(B), a standard of performance shall reflect the

degree of emission limitation and the percentage

reduction achievable ae application of the best

technological system of continuous emission

reduction which (taking into consideration the cost of

achieving such emission reduction, any nonair quality

health and environmental impact and energy

requirements) the Administrator determines has been

adequately demonstrated. For the purpose of

subparagraph? (1)(A)(ii), any cleaning of the fuel or

reduction in the pollution characteristics of the fuel

after extraction and prior to combustion may be

credited, as determined under regulations

hemepiey by the Administrator, to a source which

urns such fuel.

(2) The term “new source” means any

stationary source, the construction or modification of

which is commenced after the publication of

regulations (or, if earlier, proposed regulations)

prescribing a standard of performance under this

section which will be applicable to such source.

(3) The term “stationary source” means any

building, structure, facility, or installation which emits

or may emit any air pollutant.

(4) The term “modification” means any

physical change in, or change in the method of

1S0 in original public law. Probably should

be “paragraph”.

operation of, a stationary source which increases the

amount of any air pollutant emitted by such source or

which results in the emission of any air pollutant not

previously emitted.

(5) The term “owner or operator” means any

person who owns, leases, operates, controls, or

supervises a stationary source.

(6) The term “existing source” means any

stationary source other than a new source.

(7) The term “technological system of

continuous emission reduction” means --

(A) a technological process for

production or operation by any source which is

inherently low-polluting or nonpolluting, or

(B) a technological system for continuous

reduction of the pollution generated by a source

before such pollution is emitted into the

ambient air, including precombustion cleaning

or treatment of fuels.

(8) A conversion to coal (A) by reason of an

order under section 2(a) of the Energy Supply and

Environmental Coordination Act of 1974 or any

amendment thereto, or any subsequent enactment

which supersedes such Act, or (B) which qualifies

under section 113(d)(5)(A)(ii) of this Act, shall not be

deemed to be a modification for purposes of

paragraphs (2) and (4) of this subsection.1

1For related provisions, see section 301 of

the Powerplant and Industrial Fuel Use act of 1978

(as amended by Public Law 97-35 (sec. 1021)).

32a

(b)(1)(A) The Administrator shall, within 90

days after the date of enactment of the Clean Air

Amendments of 1970, publish (and from time to time

thereafter shall revise) a list of categories of

stationary sources. He shall include a category of

sources in such list if in his judgment it causes, or

contributes significantly to, air pollution which ma

reasonably be anticipated to endanger public healt

or welfare.

(B) Within 120 days after the inclusion of a

category of stationary sources in a list under

subparagraph (A), the Administrator shall publish

proposed regulations, establishing Federal standards

of performance for new sources within such category.

The Administrator shall afford interested persons an

opportunity for written comment on such proposed

regulations. After considering such comments, he

shall promulgate, within 90 days after such

egy such standards with such modifications as

e deems appropriate. The Administrator shall, at

least every four years, review and, if appropriate,

revise such standards following the procedure

required by this subsection for promulgation of such

standards. Standards of performance or revisions

thereof shali become effective upon promulgation.

(2) The Administrator may distinguish among

classes, types, and sizes within categories of new

sources for the purpose of establishing such

standards.

(3) The Administrator shall, from time to time,

issue information on pollution control techniques for

categories of new sources and air pollutants subject

to the provisions of this section.

(4) The provisions of this section shall apply to

any new source owned or operated by the United

States.

33a

(5) Except as otherwise authorized under

subsection (h), nothing in this section shall be

construed to require, or to authorize the

Administrator to require, any new or modified source

to install and operate any particular technological

system of continuous emission reduction to comply

with any new source standard of performance.

(6) The revised Standards of performance

required by enactment of subsection (a)(1)(A)(i) and

(ii) shatl be promulgated not later than one year after

enactment of this paragraph. Any new of modified

fossil fuel fired stationary source which commences

construction prior to the date of publication of the

proposed revised standards shall not be required to

comply with such revised standards. ©

(c)(1) Each State may develop and submit to the

Administrator a procedure for implementing and

enforcing standards of performance for new sources

located in such State. If the Administrator finds the

State procedure is adequate, he shall delegate to such

State any authority he has under this Act to

implement and enforce such standards.

(2) Nothing in this subsection shall prohibit

the Administrator from enforcing any applicable

standard of performance under this section.

(d)(1) The Administrator shall prescribe

regulations which shall establish a procedure similar

to that provided by section 110 under which each

State shall submit to the Administrator a plan which

(A) establishes standards of performance for any

existing source for any air pollutant (i) for which air

quality criteria have not been issued or which is not

included on a list published under section 108(a) or

112(b)(1)(A) but (ii) to which a standard of

performance under this section would apply if such

existing source were a new source, and (B) provides

for the implementation and enforcement of such

standards of performance. Regulations of the

34a

EE oaoOoOoOoree

Administrator under this paragraph shall permit the

State in applying a standard of performance to any

particular source under a plan submitted under this

paragraph to take into consideration, among other

factors, the remaining useful life of the existing

source to which such standard applies.

(2) The Administrator shall have the same

authority --

(A) to prescribe a plan for a State in cases

where the State fails to submit a satisfactory

plan as he would have under section 110(c) in

the case of failure to submit an implementation

plan, and

(B) to enforce the provisions of such plan

in cases where the State fails to enforce them as

he would have under sections 113 and 114 with

respect to an implementation plan. In

promulgating a standard of performance under

a plan prescribed under this paragraph, the

Administrator shall take into consideration,

among other factors, remaining useful lives of

the sources in the category of sources to which

such standard applies.

(e) After the effective date of standards of

steps romulgated under this section, it shall

e unlawful for any owner or operator of any new

source to operate such source in violation of any

standard of performance applicable to such source.

(f)(1) Not later than one year after the date of

enactment of this subsection, the Administrator shall

promulgate regulations listing under subsection

(b)(1)(A) the categories of major stationary sources

which are not on the date of the enactment of this

subsection included on the list required under

subsection (b)(1)(A). The Administrator shall

promulgate regulations establishing standards of

performance for the percentage of such categories of

354

sources set forth in the following table before the

expiration of the corresponding period set forth in

such table:

Period by which standards must be promulgated after

date list is required to be promulgated

Percentage of source categories required to be listed

for which standards must be established:

BE Binds ilga wu CLARE R ORG DE ERK 2 years

BU Moi so ck OREN Wee Cee kek 4 eee 3 years

Ps sas 4b ek ok COR ERT CRRA eee 4 years

(2) In determining priorities for promulgating

standards for categories of major stationary sources

for the purpose of paragraph (1), the Administrator

shall consider --

(A) the quantity of air pollutant

emissions which each such category will emit, or

will be designed to emit;

(B) the extent to which each such

pollutant may reasonably be anticipated to

endanger public health or welfare; and

(C) the mobility and competitive nature

of each such category of sources and the

consequent need for nationally applicable new

source standards of performance.

(3) Before promulgating any regulations

under this subsection or listing any category of major

stationary sources as required under this subsection,

the Administrator shall consult with appropriate

representatives of the Governors and of State air

pollution control agencies.

(g)(1) Upon application by the Governor of

a State showing that the Administrator has failed to

36 a

specify in regulations under subsection (f)(1) any

category of major stationary sources required to be

specified under such regulations, the Administrator

shall revise such regulations, to specify any such

category.

(2) Upon application by the Governor of a

State showing that any category of stationary sources

which is not included in the ‘ist under subsection

(b)(1)(A) contributes significantly to air pollution

which may reasonably be anticipated to endanger

public health or which may reasonably be anticipated

to endanger public health or welfare

(notwithstanding that such category is not a category

of major stationary sources), the Administrator shall

revise such regulations to specify such category of

stationary sources.

(3) Upon application of the Governor of a

State showing that the Administrator has failed to

apply properly the criteria required to be considered

under subsection (f)(2), the Administrator shall revise

the list under subsection (b)(1)(A) to apply properly

such criteria.

(4) Upon application of the Governor of a

State showing that --

(A) a new, innovative, or improved

technology or process which achieves greater

continuous emission reduction has been

adequately demonstrated for any category of

stationary sources, and

(B) as a result of such technology or

process, the new source standard of

performance in effect under this section for such

category no longer reflects the greatest degree

of emission limitation achievable through

application of the best technological system of

continuous emission reduction which =

into consideration the cost of achieving suc

37a

emission reduction, and any non-air quality

health and environmental impact and energy

requirements) has been adequately

demonstrated,

the Administrator shall revise such standard of

performance for such category accordingly.

(5) Upon application by the Governor of a

State showing that the Administrator has failed to list

any air pollutant which causes, or contributes to, air

pollution which may reasonably be anticipated to

result in an increase in mortality or an increase in

serious irreversible, or incapacitating reversible,

illness as a hazardous air pollutant under section 112,

the Administrator shall revise the list of hazardous air

pollutants under such section to include such

pollutant.

(6) Upon application by the Governor of a

State showing that any category of stationary sources

of a hazardous air pollutant listed under section 112 is

not subject to emission standards under such section,

the Administrator shall propose and promulgate such

emission standards applicable to such category of

sources.

(7) Unless later deadlines for action of the

Administrator are otherwise prescribed under this

section or section 112, the Administrator shall, not

later than three months following the date of receipt

of any application by a Governor of a State, either --

(A) find that such application does not

contain the requisite showing and deny such

application, or

(B) grant such application and take the

action required under this subsection.

(8) Before taking any action required by

subsection (f) or by this subsection, the Administrator

38a

shall provide notice and opportunity for public

hearing.

(h)(1) For purposes of this section, if in the

judgment of the Administrator, it is not feasible to

prescribe or enforce a standard of performance, he

may instead promulgate a design, equipment, work

practice, or operational standard, or combination

thereof, which reflects the best technological system

of continuous emission reduction which (taking into

consideration the cost of achieving such emission

reduction, and any non-air quality health and

environmental impact and energy requirements) the

Administrator determines has been adequately

demonstrated. In the event the Administrator

promulgates a design or equipment standard under

this subsection, he shall include as part of such

standard such requirements as will assure the proper

operation and maintenance of any such element of

design or equipment.

(2) For the purpose of this swbsection, the

phrase “not Seneibla to prescribe or enforce a

standard of performance” means any situation in

which the Administrator determines that (A) a

pollutant or pollutants cannot be emitted through a

conveyance designed and constructed to emit or

capture such pollutant, or that any requirement for,

or use of, such a conveyance would be inconsistent

with any Federal, State, or local law, or (B) the

application of measurement methodology to a

particular class of sources is not practicable due to

technological or economic limitations.

(3) If after notice and opportunity for public

hearing, any person establishes to the satisfaction of

the Administrator that an alternative means of

emission limitation will achieve a reduction in

emissions of any air pollutant achieved under the

requirements of paragraph (1), the Administrator

shall permit the use of such alternative by the source

39 a

for purposes of compliance with this section with

respect to such pollutant.

(4) Any standard promulgated under

paragraph (1) shall be promulgated in terms of

standard of performance whenever it becomes

feasible to promulgate and enforce such standard in

such terms.

(5) Any design, equipment, work practice, or

operational standard, or any combination thereof,

described in this subsection shall be treated as a

standard of performance for purposes of the

provisions of this Act (other than the provisions of

subsection (a) and this subsection).

(i) Any regulations promulgated by the

Administrator under this section applicable to grain

elevators shall not apply to country elevators (as

defined by the Administrator) which have a storage

capacity of less than two million five hundred

thousand bushels.

(j)(1)(A) Any person proposing to own or

operate a new source may request the Administrator

for one or more waivers from the requirements of this

section for such source or any portion thereof with

respect to any air pollutant to encourage the use of

an innovative technological system or systems of

continuous emission reduction. The Administrator

may, with the consent of the Governor of the State in

which the source is to be located, grant a waiver

under this paragraph, if the Administrator determines

after notice and opportunity for public hearing, that--

(i) the proposed system or systems have

not been adequately demonstrated,

(ii) the proposed system or systems will

operate effectively and there is a substantial

likelihood that such system or systems will

achieve greater continuous emission reduction

40 a

than that required to be achieved under the

standards of performance which would

otherwise apply, or achieve at least an

equivalent reduction at lower cost in terms of

energy, economic, or nonair quality

environmental impact.

(iii) the owner or operator of the

proposed source has demonstrated to the

satisfaction of the Administrator that the

proposed system will not cause or contribute to

an unreasonable risk to public health, welfare,

or safety in its operation, function, or

malfunction, and

(iv) the granting of such waiver is

consistent with the requirements of

subparagraph (C).

In making any determination under clause (ii), the

Administrator shall take into account any previous

failure to such system or systems to operate

effectively or to meet any requirement of the new

source performance standards. in determining

whether an unreasonable risk exists under clause (iii),

the Administrator shall consider, among other

factors, whether and to what extent the use of the

proposed technological system will cause, increase,

reduce, or eliminate emissions of any unregulated

pollutants; available methods for reducing or

eliminating any risk to public health, welfare, or

safety which may be associated with the use of such

system; and the availability of other technological

systems which may be used to conform to standards

under this section without causing or contributing to

such unreasonable risk. The Administrator may

conduct such tests and may require the owner or

operator of the proposed source to conduct such tests

and provide such information as is necessary to carry

out clause (iii) of this subparagraph. Such

requirements shall include a requirement for prompt

reporting of the emission of any unregulated

pollutant from a system if such pollutant was not

emitted, or was emitted in significantly lesser

amounts without use of such system.

(B) A waiver under this paragraph shall

be granted on such terms and conditions as the

Administrator determines to be necessary to

assure--

(i) emissions from the source will not

prevent attainment and maintenance of any

national ambient air quality standards, and

(ii) proper functionin of the

technological system or systems authorized.

Any such term or condition shall be treated as a

standard of performance for the purposes of

subsection (e) of this section and section 113.

(C) The number of waivers granted under this

paragraph with respect to a proposed technological

system of continuous emission reduction shall not

exceed such number as the Administrator finds

necessary to ascertain whether or not such system will

achieve the conditions specified in clauses (ii) and (iii)

of subparagraph (A).

(D) A waiver under this paragraph shall extend

to the sooner of--

(i) the date determined by the

Administrator, after consultation with the

owner or operator of the source taking

into consideration the design, installation

and capital cost of the technological

system or systems being used, or

(ii) the date on which the

Administrator determines that such system

has failed to--

42 a

(i) achieve at least an

equivalent continuous emission

reduction to that required to be

achieved under the standards of

performance which would otherwise

apply, or

(Il) comply with the condition

specified in paragraph (1)(A)(iii),

and that such failure cannot be corrected.

(E) In carrying out subparagraph (D)(i), the

Administrator shall not permit any waiver for a source

or portion thereof to extend beyond the date--

(i) seven years after the date on

which any waiver is granted to such source

or portion thereof, or

(ii) four years after the date on

which such source or portion thereof

commences operation,

whichever is earlier.

(F) No waiver under this subsection shall apply

to any portion of a source other than the portion on

which the innovative technological system or systems

of continuous emission reduction is used.

(2)(A) lf a waiver under paragraph (1) is

terminated under clause (ii) of paragraph (1)(D), the

Administrator shall grant an extension of the

requirements of this section for such source for such

minimum period as may be necessary to comply with

the applicable standard of performance under this

section. Such period shall not extend beyond the date

three years from the time such waiver is terminated.

(B) An extension granted under this

paragraph shall set forth emission limits and a

compliance schedule containing increments of

ee which require compliance with the

applicable standards of performance as expeditiously

as practicable and include such measures as are

necessary and practicable in the interim to minimize

emissions. Such schedule shall be treated as a

standard of performance for purposes of subsection

(e) of this section and section 113.

40 C.F.R. § 60.5 Determination of construction or

modification.

(a) When requested to do so by an owner or

operator, the Administrator will make a

determination of whether action taken or intended

to be taken by such owner or operator constitutes

construction (including reconstruction) or

modification or the commencement thereof within

the meaning of this part.

(b) the Administrator will respond to any

request for a determination under paragraph (a) of

this section within 30 days of receipt of such request.

[40 FR 58418, Dec. 16, 1975]

40 C.F.R. § 60.14 Modification.

(a) Except as provided under paragraphs (e)

and (f) of this section, any physical or operational

change to an existing facility which results in an

increase in the emission rate to the atmosphere of any

pollutant to which a standard applies shall be

considered a modification within the meaning of

section 111 of the Act. Upon modification, an existing

facility shall become an affected facility for each

pollutant to which a standard applies and for which

there is an increase in the emission rate to the

atmosphere.

(b) Emission rate shall be expressed as kg/hr of

any pollutant discharged into the atmosphere for

44a

which a standard is applicable. The Administrator

shall use the following to determine emission rate:

(1) Emission factors as specified in the latest

issue of “Compilation of Air Pollutant Emission

Factors,” EPA Publication No. AP-42, or other emission

factors determined by the Administrator to be

superior to AP-42 emission factors, in cases where

utilization of emission factors demonstrate that the

emission level resulting from the physical or

operational change will either clearly increase or

clearly not increase.

(2) Material balances, continuous monitor

data, or manual emission tests in cases where

utilization of emission factors as referenced in

paragraph (b)(1) of this section does not demonstrate

to the Administrator's satisfaction whether the

emission level resulting from the physical or

operational change will either clearly increase or

clearly not increase, or where an owner or operator

demonstrates to the Administrator's satisfaction that

there are reasonable grounds to dispute the result

obtained by the Administrator utilizing emission

factors as referenced in paragraph (b)(1) of this

section. When the emission rate is based on results

from manual emission tests or continuous monitorin

pes the procedures specified in Appendix C o

this part shall be used to determine whether an

increase in emission rate has occurred. Tests shall be

conducted under such conditions as the Administrator

shall specify to the owner or operators based on

representative performance of the facility. At least

three valid test runs must be conducted before and at

least three after the physical or operational change.

All operating parameters which may affect emissions

must be held constant to the maximum feasible

degree for all test runs.

(c) The addition of an affected facility to a

stationary source as an expansion to that source or as

a replacement for an existing facility shall not by itself

45a

———e a 2.2, re.

bring within the applicability of this part any other

facility within that source.

(d) [Reserved]

(e) The following shall not, by themselves, be

considered modifications under this part:

(1) Maintenance, repair, and replacement

which the Administrator determines to be routine for

a source category, subject to the provisions of

paragraph (c) of this section and § 60.15.

(2) An increase in production rate of an

existing facility, if that increase can be accomplished

without a capital expenditure on that facility.

(3) An increase in the hours of operation.

(4) Use of an alternative fuel or raw material

if, prior to the date any standard under this part

becomes applicable to that source type, as provided

by § 60.1, the existing facility was designed to

accommodate that alternative use. A facility shall be

considered to be designed to accommodate an

alternative fuel or raw material if that use could be

accomplished under the facility's construction

specifications as amended prior to the change.

Conversion to coal required for ener

considerations, as specified in section 111(a)(8) of the

Act, shall not be considered a modification.

(5) The addition or use of any system or device

whose. primary function is the reduction of air

pollutants, except when an emission control system is

removed or is replaced by a system which the

Administrator determines to be less environmentally

beneficial.

(6) The relocation or change tn ownership of

an existing facility.

46a

(f) Special provisions set forth under an

applicable subpart of this part shall supersede any

conflicting provisions of this section.

(g) Within 180 days of the completion of any

physical or operational change subject to the control

measures specified in paragraph (a) of this section,

compliance with all applicable standards must be

achieved.

[40 FR 58419, Dec. 16, 1975, amended at 43 FR 34347,

Aug. 3, 1978; 45 FR 5617, Jan. 23, 1980]

40 C.F.R. § 60.22 Publication of quideline documents,

emission guidelines, and final compliance times.

(a) After promulgation of a standard of

performance for the control of a designated pollutant

from affected facilities, the Administrator will publish

a draft guideline document containing information

pertinent to control of the designated pollutant from

designated facilities. Notice of the availability of the

draft guideline document will be published in the

FEDERAL REGISTER, and public comments on its

contents will be invited. After consideration of public

comments, a final guideline document will be

published and notice of its availability will be

published in the FEDERAL REGISTER.

(b) Guideline documents published under this

section will provide information for the development

of State plans, such as:

(1) Information concerning known or

suspected endangerment of public health or welfare

caused, or contributed to, by the designated

pollutant.

(2) A description of systems of emission

reduction which, in the judgment of the

Administrator, have been adequately demonstrated.

47a

(3) Information on the degree of emission

reduction which is achievable with each system,

together with information on the costs and

environmental effects of applying each system to

designated facilities.

(4) Incremental periods of time normally

expected to be necessary for the design, installation,

and startup of identified control systems.

(5) An emission guideline that reflects the

application of the best system of emission reduction

(considering the cost of such reduction) that has been

adequately demonstrated for designated facilities,

and the time within which compliance with emission

standards of equivalent stringency can be achieved.

The Administrator will specify different emission

guidelines or compliance times or both for different

sizes, types, and classes of designated facilities when

costs of control, physical limitations, geographical

location, or similar factors make subcategorization

appropriate.

(6) Such other available information as the

Administrator determines may contribute to the

formulation of State plans.

(c) Except as provided in paragraph (d)(1) of

this section, the emission guidelines and compliance

times referred to in paragraph (b)(5) of this section

will be proposed for comment upon publication of

the draft guideline document, and after

consideration of comments will be promulgated in

Subpart C of this part with such modifications as may

be appropriate.

(d)(1) If the Administrator determines that

a designated pollutant may cause or contribute to

endangerment of public welfare, but that adverse

effects on public health have not been demonstrated,

he will include the determination in the draft

guideline document and in the FEDERAL REGISTER

48 a

notice of its availability. Except as provided in

paragraph (d)(2) of this section, paragraph (c) of this

section shall be inapplicable in such cases.

(2) If the Administrator determines at any

time on the basis of new information that a prior

determination under paragraph (d)(1) of this section

is incorrect or no longer correct, he will publish notice

of the determination in the FEDERAL REGISTER, revise

the guideline document as necessary under

paragraph (a) of this section, and propose and

promulgate emission guidelines snd, compliance

times under paragraph 2) of this section.

40 C.F.R. § 60.24 Emission standards and compliance

schedules.

(a) Each plan shali include emission standards

and compliance schedules.

(b)(1) Emission standards shall prescribe

allowable rates of emissions except when it is clearly

impracticable. Such cases will be identified in the

guideline documents issued under § 60.22. Where

emission standards prescribing equipment

specifications are established, the plan shall, to the

egree possible, set forth the emission reductions

achievable by implementation of such specifications,

and may permit compliance by the use of equipment

determined by the State to be equivalent to that

prescribed.

(2) Test methods and procedures for

determining compliance with the emission standards

shall be specified in the plan. Methods other than

those specified in Appendix A to this part may be

specified in the plan if shown to be equivalent or

alternative methods as defined in § 60.2 (t) and (u).

(3) Emission standards shall apply to all

designated facilities within the State. A plan may

contain emission standards adopted by local

49 a

jurisdictions provided that the standards are

enforceable by the State.

(c) Except as provided in paragraph (f) of this

section, where the Administrator has determined that

a designated pollutant may cause or contribute to

endangerment of public health, emission standards

shall be no less stringent than the corresponding

emission bag ok per specified in Subpart C of this

part, and final compliance shall be required as

expeditiously as practicable but no later than the

compliance times specified in Subpart C of this part.

(d) Where the Administrator has determined

that a designated pollutant may cause or contribute

to endangerment of public welfare but that adverse

effects on public health have not been demonstrated,

States may balance the emission guidelines,

compliance times, and other information provided in

the applicable guideline document against other

factors of public concern in establishing emission

standards, compliance schedules, and variances.

Appropriate consideration shall be given to the

factors specified in § 60.22(b) and to information

presented at the public hearing(s) conducted under §

60.23(c).

(e)(1)Any compliance schedule extending more

than 12 months from the date required for nis Siren

of the plan shall include legally enforceable

increments of progress to achieve compliance for

each designated facility or category of facilities.

Increments of progress shall include, where

practicable, each increment of progress specified in §

60.21(h) and shall include such additional increments

of progress as may be necessary to permit close and

effective supervision of progress toward final

compliance.

(2) A plan may provide that compliance

schedules for individual sources or categories of

sources will be formulated after plan submittal. Any

50a

such schedules shall be the subject of a public hearing

held according to § 60.23 and shall be submitted to

the Administrator within 60 days after the date of

adoption of the schedule but in no case later than the

date prescribed for submittal of the first semiannual

report required by § 60.25(e).

(f) On a case-by-case basis for particular

designated facilities, or classes of facilities, States may

provide for the application of less stringent emission

standards or longer compliance schedules than those

otherwise required by paragraph (c) of this section,

provided that the State demonstrates with respect to

each such facility (or class of facilities):

(1) Unreasonable cost of control resulting

from plant age, location, or basic process design;

(2) Physical impossibility of installing

necessary control equipment; or

(3) Other factors specific to the facility (or class

of facilities) that make application of a less stringent

standard or final compliance time significantly more

reasonable.

(g) Nothing in this subpart shall be construed

to preclude any State or political subdivision thereof

from adopting or enforcing (1) emission standards

more stringent than emission guidelines specified in

Subpart C of this part or in applicable guideline

documents or (2) compliance schedules requiring final

compliance at earlier times than those specified in

Subpart C or in applicable guideline documents

40 C.F.R. § 60.28 Plan revisions by the State.

(a) Plan revisions which have the effect of

delaying compliance with applicable emission

standards or increments of progress or of establishing

less stringent emission standards shall be submitted to

the Administrator within 60 days after adoption in

5la

accordance with the procedures and requirements

applicable to development and submission of the

origina! plan.

(b) More stringent emission standards, or

orders which have the effect of accelerating

compliance, may be submitted to the Administrator

as plan revisions in accordance with the procedures

and requirements applicable to development and

submission of the original plan.

(c) A revision of a plant, or any portion

thereof, shall not be considered part of an applicable

plant until ger by the Administrator in

accordance with this subpart.

52a

CERTIFICATE OF SERVICE

| hereby certify that | served three true and

correct copies of the foregoing Appendix to be

mailed first class, postage prepaid, this 19th day of

August, 1988 upon:

Solicitor General

Department of Justice

Washington, D.C. 20530

Brian Faller, Attorney

Environmental Defense Section

Land and Natural Resources Division

U.S. Department of Justice

Post Office Box 23986

Washington, D.C. 20026-3986

Earl C. Salo, Esquire

Office of General Counsel

U.S. Environmental Protection Agency

401 M Street, S.W.

Washington, D.C. 20460

Yel hed |

Chester R. Babst Ill, Esquire

Babst, Calland, Clements & Zomnir, P.C.

Two Gateway Center

Pittsburgh, Pennsylvania 15222 :

(412) 394-5400

Counsel of Record for

National-Southwire Aluminum Company