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(s) Innovative control technology. (1) The plan may provide that an owner or operator of a proposed major stationary source or major modification may request the reviewing authority to approve a system of innovative control technology.

(2) The plan may provide that the reviewing authority may, with the consent of the governor(s) of other affected state(s), determine that the source or modification may employ a system of innovative control technology, if:

(i) The proposed control system would not cause or contribute to an unreasonable risk to public health, welfare, or safety in its operation or function;

(ii) The owner or operator agrees to achieve a level of continuous emissions reduction equivalent to that which would have been required under paragraph (j)(2) of this section, by a date specified by the reviewing authority. Such date shall not be later than 4 years from the time of startup or 7 years from permit issuance;

(iii) The source or modification would meet the requirements equivalent to those in paragraphs (j) and (k) of this section, based on the emissions rate that the stationary source employing the system of innovative control technology would be required to meet on the date specified by the reviewing authority;

modification

(iv) The source or would not before the date specified by the reviewing authority:

(a) Cause or contribute to any violation of an applicable national ambient air quality standard; or

(b) Impact any Class I area; or

(c) Impact any area where an applicable increment is known to be violated;

(v) All other applicable requirements including those for public participation have been met.

(3) The plan shall provide that the reviewing authority shall withdraw any approval to employ a system of innovative control technology made under this section, if:

(i) The proposed system fails by the specified date to achieve the required continuous emissions reduction rate;

or

(ii) The proposed system fails before the specified date so as to contribute to an unreasonable risk to public health, welfare, or safety; or

(iii) The reviewing authority decides at any time that the proposed system is unlikely to achieve the required level of control or to protect the public health, welfare, or safety.

(4) The plan may provide that if a source or modification fails to meet the required level of continuous emissions reduction within the specified time period, or if the approval is withdrawn in accordance with paragraph (s)(3) of this section, the reviewing authority may allow the source or modification up to an additional 3 years to meet the requirement for the application of best available control technology through use of a demonstrated system of control.

(Secs. 101(b)(1), 110, 160-169, 171-178, and 301(a), Clean Air Act as amended (42 U.S.C. 7401(b)(1), 7410, 7470-7479, 7501-7508, and 7601(a)); Sec. 129(a), Clean Air Act Amendments of 1977 (Pub. L. 95-95, 91 Stat. 685 (Aug. 7, 1977)))

[43 FR 26382, June 19, 1978; 43 FR 40010, Sept. 8, 1978, as amended at 44 FR 27569, May 10, 1979; 45 FR 52729, Aug. 7, 1980; 47 FR 27560, June 25, 1982]

Subpart C-Extensions

§ 51.30 Request for 2-year extension.

(a) The Governor of a State may, at the time of submission of a plan to implement a primary standard in a Priority I region, request the Administrator to extend, for a period not exceeding 2 years, the 3-year period prescribed by the Act for attainment of the primary standard in such region.

(b) Any such request regarding an interstate region shall be submitted jointly with the requests of Governors of all States in the region, or shall show that the Governor of each State in the region has been notified of such a request.

(c) Any such request regarding attainment of a primary standard shall be submitted together with a plan which shall:

(1) Set forth a control strategy adequate for attainment of such primary standard.

(2) Show that the necessary technology or alternatives will not be available soon enough to permit full implementation of such control strategy within such 3-year period, i.e., one or more emission sources or classes of sources will be unable to comply with applicable strategy.

portions of the control

(3) Provide for attainment of such primary standard as expeditiously as practicable, but in no case later than 5 years after the date of the Administrator's approval of such plan.

(d) Any showing pursuant to paragraph (c) of this section shall include: (1) A clear identification of stationary emission sources or classes of moving sources which will be unable to comply with the applicable portions of such control strategy within a 3year period because the necessary technology or alternatives will not be available soon enough to permit such compliance.

(2) A clear identification and justification of any assumptions made with the respect to the time at which the necessary technology or alternatives will be available.

(3) A clear identification of any alternative means of attainment of such primary standard which were considered and rejected.

(4) A showing that stationary emission sources or classes of moving sources other than those identified pursuant to paragraph (d)(1) of this section will be required to comply, within such 3-year period, with any applicable portions of such control strategy.

(5) A showing that reasonable interim control measures are provided for in such plan with respect to emissions from the source(s) identified pursuant to paragraph (d)(1) of this section.

$ 51.31 Request for 18-month extension.

(a) Upon request of the State made in accordance with this section, the Administrator may, whenever he determines necessary, extend, for a period not to exceed 18 months, the deadline for submitting that portion of a plan that implements a secondary standard.

(b) Any such request will be given consideration only in the case of Priority I and Priority II regions.

(c) Any such request shall show that attainment of the secondary standards will require emission reductions exceeding those which can be achieved through the application of reasonably available control technology.

(d) Any such request for extension of the deadline with respect to any State's portion of an interstate region shall be submitted jointly with requests for such extensions from all other States within the region or shall show that all such States have been notified of such request.

(e) Any such request shall be submitted sufficiently early to permit development of a plan prior to the deadline in the event that such request is denied.

§ 51.32 Request for 1-year postponement.

(a) Pursuant to section 110(f) of the Act, the Governor of a State may request, with respect to any stationary source or class of moving sources, a postponement for not more than 1 year of the applicability of any portion of the control strategy.

(b) Any such request regarding sources located in an interstate region shall show that the Governor of each State in the region has been notified of such request.

(c) Any such request shall clearly identify the source(s) and portion(s) of the control strategy which are the subject of such request and shall include information relevant to the determinations required by section 110(f) of the Act.

(d) A public hearing will be held, before the Administrator or his designee, on any such request.

(e) No such request shall operate to stay the applicability of the portion(s) of the control strategy covered by such request.

(f) Notwithstanding the requirements of this section, a State's implementation plan may be revised in accordance with § 51.6 to permit a source to comply after the applicable attain

'Defined term (Clean Air Act) see defini

tions.

ment date with an emission limitation of that plan if such plan, as revised, continues to provide for attainment and maintenance of the national standards as provided in §§ 51.12, 51.13, and 51.14.

[36 FR 22398, Nov. 25, 1971, as amended at 38 FR 15958, June 19, 1973; 41 FR 18511, May 5, 1976]

§ 51.33 Hearings and appeals relating to request for one year postponement. (a) Definitions. (1) The term "Act" is defined at 40 CFR 51.1(a).

(2) The term "Administrative Law Judge" means an administrative law judge whose services have been retained by the Environmental Protection Agency pursuant to sections 556(b)(3) and 3105 or 3344 of the Administrative Procedure Act for the duties and functions hereinafter set forth. The Administrator may delegate all or part of his authority to act in a given case under this section to an Administrative Law Judge. There may be included within such delegation authority to issue subpoenas, authority to make findings of fact and conclusions of law with respect to a given case and authority to recommend a decision (hereinafter referred to as the "initial decision"). Unless otherwise limited by the Administrator, the action of the Administrator or his delegate in assigning an administrative law judge to a given case shall be regarded as a full and complete delegation of authority to render an initial decision. A delegation of authority to render an initial decision shall not preIclude the Administrative Law Judge from referring any motion or case to the Administrator when the Administrative Law Judge determines such referral to be appropriate.

(3) The term "Administrator" is defined at 40 CFR 51.1(b).

(4) The term "Agency," unless otherwise specified, means the United States Environmental Protection Agency.

(5) The term "initial decision" means the decision of the Administrative Law Judge as supported by findings of fact and conclusions regarding all material issues of law, fact, or discretion, as well as reasons therefore. Such decision shall become the final

decision of the Agency unless an appeal therefrom is taken or the Administrator orders review thereof as herein provided.

(6) The term "party" means the Agency, the source (or sources) on whose behalf the section 110(b) postponement has been requested and any person (as that term is defined below) who, pursuant to paragraph (c) of this section, has filed a request to participate as a party in a public hearing required by section 110(f)(2) of the Act and has had such request approved.

(7) The term "persons" means the Governor of a State which is requesting a one year postponement under section 110(f) of the Act, any officials designated by the Governor to appear on behalf of the State, and any other State, foreign country, Federal agency, or other interested person or persons (whether individual or formed as an association, public interest group or corporation).

(8) The term "prehearing conference" means a conference held prior to a section 110(f) public hearing for the purposes set forth in paragraph (k) of these rules.

(9) The term "regional hearing clerk" means an employee of the Environmental Protection Agency designated by the Administrator to establish a repository for all documents relating to hearings under this section.

(10) The term "source" means any stationary source or class of moving sources whose alleged inability to comply with any requirement of an applicable implementation plan has given rise to a request for a postponement under section 110(f) of the Act.

(b) Notice of adjudicatory hearings. (1) Public notice of every application for a postponement under section 110(f) of the Act shall be circulated in a manner designed to inform interested and potentially interested persons of the intention of the Agency to hold hearings on the requested postponement.

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by subsequent notice, but thereafter it may be moved to a different place and may be continued from day to day or recessed to a later day without other notice than announcement thereof at the hearing.

(ii) Where the source for which postponement is being requested is a stationary source, notice shall be circulated within the geographical area of the source. Such circulation shall be accomplished by either of the following methods:

(A) Posting in the main post office and in other public places of the municipality or municipalities closest to the source;

(B) Publication in at least one newspaper of general circulation which regularly reaches the geographical area of the source.

(iii) Notice shall be mailed to the source with respect to which the postponement is being requested.

(3) The contents of any public notice referred to in paragraph (b)(2) of this section, shall include at least the following:

(i) The purpose of the hearing;

(ii) A brief description of the activities or operations of the source with respect to which the postponement is being requested and a concise statement setting forth the grounds on which the request is being made;

(iii) A brief statement of the legal authority under which the hearing is being held;

(iv) Notice shall be mailed to the air pollution control board or agency of the state in which the source is located provided that, if an air pollution control authority does not exist on the state level, notice shall be sent to that local air pollution control board or agency to whose authority the source is subject.

(v) The address and phone number of the place or places where documents relating to the hearing can be copied or inspected;

(vi) The address and phone number of the regional filing clerk and a statement advising interested persons that requests to be made a party to the hearing are to be mailed to the regional filing clerk within the time frame noted in paragraph (c) of this section;

(vii) A statement advising persons who do not wish to be made a party to the hearing that, at any time prior to the commencement of the hearing they may either submit comments or request to make an oral statement at the hearing. The statement shall indicate that all such comments or requests are to be filed with the regional hearing clerk. The statement shall also indicate that requests to make an oral statement at the hearing will be routinely granted and that such oral presentations shall be open to questioning at the hearing.

(4) Notice shall be mailed to any person upon request.

(c) Parties. (1) Within 30 days following the issuance of public notice in the FEDERAL REGISTER of a requested postponement under section 110(f) of the Act, any person may request to be made a party to the hearing.

(2) Requests to be made a party shall be in writing and shall be addressed to the office of the regional filing clerk.

(3) Requests to be made a party shall:

(i) State the name and address of the person making the request (the requester);

(ii) Identify the interest of the requester;

(iii) Identify any others whom the requester represents;

(iv) State with particularity the position of the requester on the matters to be considered at the hearing.

(4) All requests to be made a party will be reviewed by the Administrative Law Judge within 15 days of receipt. Where the requirements of paragraph (c)(3) of this section have been met, the Administrative Law Judge shall notify, or shall direct the regional hearing clerk to notify, the requester that his request to be made a party has been approved. If, however, the Administrative Law Judge determines that the requirements of paragraph (c)(3) of this section have not been satisfied, he shall, by appropriate notice, advise the requester as to which of the requirements under paragraph (c) of this section have not been met and that his request to be made a party can not be approved until such requirements are fully met. Such notice

shall afford the requester a reasonable period of time (not to exceed 14 days) in which to file an amended request.

(5) Any documents or papers relating to the procedures described in paragraph (c)(3) of this section shall be made a part of the record and shall be available for inspection at the office of the regional hearing clerk.

(6) Any person who does not wish to be made a party to the hearing but who desires to make an oral statement at the hearing shall be permitted to do so. Such persons shall be designated as nonparty participants. Nonparty participants shall be subject to questioning at the hearing; however, nonparty participants may not question any other nonparty participants nor may they cross-examine any of the witnesses presented by the parties. Apart from the opportunity to testify at the hearing, nonparty participants shall have no further rights or obligations with respect to either the hearing, or to any facet of the decisionmaking process which follows the hearing.

(d) Filing and service. (1) All documents or papers required or authorized to be filed, shall be filed with the regional hearing clerk. Except for a request to be made a party, at the same time that a party files documents or papers with the regional hearing clerk, it shall serve upon all other parties copies thereof, with a certificate of service on each document or paper, including those filed with the regional hearing clerk. Filing shall be deemed timely if received by the regional hearing clerk within the time allowed by this section, or where not provided for by the explicit terms of this section, within the time prescribed by the Administrative Law Judge.

(2) In addition to copies served on all other parties, each party shall file with the regional hearing clerk an original and five copies of all papers filed in connection with the hearing.

(e) Time. (1) In computing any period of time prescribed or allowed by the regulations in this part, except as otherwise provided, the day of the act or event from which the designated period of time begins to run shall not be included. Saturdays, Sundays, and holidays, shall be included in computing the time allowed for the filing

of any document or paper, except that when such time expires on a Saturday, Sunday, or legal holiday, such period shall be extended to include the next following business day.

(2) Documents and papers which are postmarked prior to the expiration of a given filing date shall be deemed to have been timely filed.

(f) Intervention. (1) Following the expiration of the time prescribed in paragraph (c) of this section for the submission of requests to be made a party, any person may file a motion for leave to intervene in a hearing. A motion must set forth the grounds for the proposed intervention and the position and interest of the movant in the proceeding. A motion for leave to intervene in a hearing must ordinarily be filed prior to the commencement of the first prehearing conference. Any motion filed after that time must contain, in addition to the information set forth in paragraph (c) of this section, a statement of good cause for the failure to file the motion prior to the commencement of the first prehearing conference and shall be granted only upon a finding that (i) extraordinary circumstances justify the granting of the motion, and (ii) the intervenor agrees to be bound by agreements, arrangements and other matters previously made in the proceeding.

(2) Leave to intervene will be freely granted but only insofar as such leave raises matters which are pertinent to and do not unreasonably broaden the issues already presented. If leave is granted, the movant shall thereby become a party with the full status of the original parties to the proceedings. If leave is denied, the movant may request that the ruling be certified to the Administrator, pursuant to paragraph (r) of this section, for a speedy appeal.

(g) Amicus Curiae. (1) Persons not parties to the proceedings wishing to file briefs may do so by leave of the Administrative Law Judge granted on motion. A motion for leave shall identify the interest of the applicant and shall state the reasons why the proposed amicus brief is desirable. Unless all parties otherwise consent, an amicus curiae shall file its brief within the time allowed the party whose posi

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