42 U.S.C. § 8351 — Temporary exemptions

Page 7594 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 8351 1 So in original. Probably should be ‘‘subsection’’. at the time the proposed order is issued, covered by a final rule issued under section 1 (b). (b) Prohibitions applicable to categories of facili- ties (1) The Secretary may prohibit, by rule, the use of natural gas or petroleum under section 8341(b) of this title in existing electric power- plants. (2) Each powerplant to be covered by any final rule issued under this subsection shall be spe- cifically identified in the proposed rule pub- lished under section 8411(b) of this title. (3) In prescribing any final rule under this sub- section, the Secretary shall take into account any special circumstances or characteristics of each category of powerplants (such as the inter- mittent use, size, age, or geographic location of such powerplants). Any such rules shall not apply in the case of any existing electric power- plant with respect to which a comparable prohi- bition was issued by order. (Pub. L. 95–620, title III, § 303, Nov. 9, 1978, 92 Stat. 3306; Pub. L. 100–42, § 1(c)(9), May 21, 1987, 101 Stat. 312.) Editorial Notes AMENDMENTS 1987—Subsec. (a)(1). Pub. L. 100–42, § 1(c)(9)(A), (B), struck out ‘‘or installation’’ after ‘‘powerplant’’ in two places and ‘‘or 8342’’ after ‘‘section 8341(b) or (c)’’. Subsec. (a)(2). Pub. L. 100–42, § 1(c)(9)(A), struck out ‘‘or installation’’ after ‘‘powerplant’’. Subsec. (a)(3). Pub. L. 100–42, § 1(c)(9)(C), struck out par. (3) which read as follows: ‘‘(A) Subject to subparagraph (B), the Secretary shall not issue a final order under this subsection to any powerplant if it is demonstrated that such powerplant would have been granted an exemption if such prohibi- tion had been established by a final rule pursuant to subsection (b) rather than by order pursuant to this subsection, except that if a temporary exemption would have been granted, such a final order may be issued but may not take effect until such time as the temporary exemption would have terminated. ‘‘(B) In any case in which an order is not issued by reason of subparagraph (A) or in which the effective date of such order is delayed under subparagraph (A), the Secretary shall take such steps as may be nec- essary to assure the installation involved complies with the same requirements (including provisions of section 8354(a) of this title) as would have been applica- ble if an exemption had been granted based upon the grounds for which the order is not issued or the effec- tive date of which is delayed.’’ Subsec. (b)(1). Pub. L. 100–42, § 1(c)(9)(D), amended par. (1) generally. Prior to amendment, par. (1) read as fol- lows: ‘‘The Secretary may, by rule, prohibit the use of natural gas or petroleum pursuant to section 8341(b) or 8342(a) of this title— ‘‘(A) in the case of any category of existing electric powerplants identified in such rule; and ‘‘(B) in the case of any category of existing major fuel-burning installations which have design capabili- ties of consuming fuel (or any mixture thereof) at a fuel heat input rate of 300 million Btu’s per hour or greater which are identified in such rule.’’ Subsec. (b)(2). Pub. L. 100–42, § 1(c)(9)(A), struck out ‘‘or installation’’ after ‘‘powerplant’’. Subsec. (b)(3). Pub. L. 100–42, § 1(c)(9)(A), (E), struck out ‘‘or installations’’ after ‘‘powerplants’’ in two places in introductory provisions, and amended last sentence generally. Prior to amendment, last sentence read as follows: ‘‘Any such rules shall not apply in the case of any existing electric powerplant with respect to which a comparable prohibition was issued by order.’’ PART B—EXEMPTIONS § 8351. Temporary exemptions (a) Temporary exemption due to lack of alter- nate fuel supply, site limitations, or environ- mental requirements After consideration of a petition (and com- ments thereon) for an exemption from one or more of the prohibitions of part A for a power- plant, the Secretary shall, by order, grant such an exemption for the use of natural gas or petro- leum, if he finds that the petitioner has dem- onstrated that for the period of the proposed ex- emption, despite diligent good faith efforts— (1) it is likely that an adequate and reliable supply of coal or other alternate fuel of the quality necessary to conform with design and operational requirements for use as a primary energy source, will not be available to such powerplant at a cost (taking into account as- sociated facilities for the transportation and use of such fuel) which, based upon the best practicable estimates, does not substantially exceed the costs, as determined by rule by the Secretary, of using imported petroleum as a primary energy source; (2) one or more site limitations exist which would not permit the operation of such a pow- erplant using coal or any other alternate fuel as a primary energy source; or (3) the prohibitions of section 8341 of this title could not be satisfied without violating applicable environmental requirements. (b) Temporary exemption based upon future use of synthetic fuels After consideration of a petition (and com- ments thereon) for an exemption from one or more of the prohibitions of part A for a power- plant, the Secretary, by order, shall grant an ex- emption under this subsection for the use of nat- ural gas or petroleum, if he finds that the peti- tioner has demonstrated that— (1) the petitioner will comply with the prohi- bitions of part A by the end of the proposed ex- emption by the use of a synthetic fuel derived from coal or another alternate fuel; and (2) the petitioner is not able to comply with such prohibitions by the use of such synthetic fuel until the end of the proposed exemption. The effectiveness of an exemption under this subsection is conditioned on the petitioner filing and maintaining a compliance plan meeting the requirements of section 8354(b) of this title. (c) Temporary exemption based upon use of in- novative technologies After consideration of a petition (and com- ments thereon) for an exemption from one or more of the prohibitions of part A for a power- plant, the Secretary, by order, shall grant an ex- emption under this subsection for the use of nat- ural gas or petroleum, if he finds that the peti- tioner has demonstrated that such powerplant will comply with such prohibitions at the expi- ration of such exemption by the adoption of a technology for the use of coal or another alter- Page 7595 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 8352 nate fuel which at the time of the granting of the exemption is determined by the Secretary to be an innovative technology. The effectiveness of an exemption under this subsection is condi- tioned on the petitioner filing and maintaining a compliance plan meeting the requirements of section 8354(b) of this title. (d) Temporary exemption for units to be retired (1) After consideration of a petition (and com- ments thereon) for an exemption from one or more of the prohibitions of part A for a power- plant, the Secretary shall, by order, grant an ex- emption under this subsection for the use of nat- ural gas or petroleum, if he finds that the peti- tioner has demonstrated that such powerplant is to permanently cease operation at or before the expiration of the exemption period. An exemp- tion under this subsection is conditioned on the petitioner filing and maintaining a compliance plan meeting the requirements of section 8354(b) (other than paragraph (1)(B)) of this title. (2) Notwithstanding any other provision of this chapter, an exemption under this part may not be granted for any powerplant once an ex- emption under this subsection has been granted for such powerplant. (e) Temporary public interest exemption After consideration of a petition (and com- ments thereon) for an exemption for a power- plant from one or more of the prohibitions of part A for a powerplant, the Secretary may, by order, grant an exemption under this subsection for the use of natural gas or petroleum, if he finds that the petitioner has demonstrated that for the period of the proposed exemption the issuance of such exemption is in the public in- terest and is consistent with the purposes of this chapter. (f) Temporary exemption for peakload power- plants After consideration of a petition (and com- ments thereon) for an exemption from one or more of the prohibitions of part A for a power- plant, the Secretary shall, by order, grant an ex- emption under this subsection for the use of nat- ural gas or petroleum, if the petitioner certifies that such powerplant is to be operated solely as a peakload powerplant. (g) Temporary exemption for powerplants where necessary to maintain reliability of service (1) After consideration of a petition (and com- ments thereon) for an exemption from one or more of the prohibitions of part A for a power- plant, the Secretary shall, by order, grant an ex- emption under this subsection for the use of nat- ural gas or petroleum, if he finds that the peti- tioner has demonstrated that such exemption is necessary to prevent impairment of reliability of service. (2) Notwithstanding any other provision of this chapter, an exemption under this part (other than a permanent exemption under sec- tion 8352(f) of this title for the use of petroleum) may not be granted for any powerplant for which an exemption under this subsection has been granted. (h) Duration of temporary exemptions (1) Except as provided in paragraphs (2) and (3), exemptions under this section for any powerplant may not exceed, taking into account any extension or renewal, 5 years. (2)(A) An exemption under subsection (a)(1) may be granted for a period of more than 5 years, but may not exceed, taking into account any extension or renewal, 10 years. (B) Subject to paragraph (3), an exemption under subsections (b), (c), and (g) may be ex- tended beyond the 5-year limit under paragraph (1), but such exemption, so extended, may not exceed 10 years. (3) An exemption under subsections (d), (f), and (g) for the use of natural gas by a power- plant may not extend beyond December 31, 1994. (4) In computing the 5-year and 10-year limita- tions of paragraphs (1) and (2) in the case of any exemption under this section, the period before the prohibition on the use of natural gas and pe- troleum would first apply (if the exemption had not been granted) shall be disregarded. (Pub. L. 95–620, title III, § 311, Nov. 9, 1978, 92 Stat. 3307; Pub. L. 100–42, § 1(c)(10), (11), May 21, 1987, 101 Stat. 313.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsecs. (d)(2), (e), and (g)(2), was in the original ‘‘this Act’’, meaning Pub. L. 95–620, Nov. 9, 1978, 92 Stat. 3289, known as the Power- plant and Industrial Fuel Use Act of 1978, which is clas- sified principally to this chapter. For complete classi- fication of this Act to the Code, see Short Title note set out under section 8301 of this title and Tables. AMENDMENTS 1987—Subsec. (a). Pub. L. 100–42, § 1(c)(10), (11), struck out ‘‘or installation’’ after ‘‘powerplant’’ in introduc- tory provisions and in pars. (1) and (2) and struck out ‘‘or 8342’’ after ‘‘section 8341’’ in par. (3). Subsecs. (b) to (e), (h)(1). Pub. L. 100–42, § 1(c)(10), struck out ‘‘or installation’’ after ‘‘powerplant’’ wher- ever appearing. Statutory Notes and Related Subsidiaries EXEMPTION FOR CERTAIN ELECTRIC POWERPLANTS AS EFFECTIVE PRIOR TO 180 DAYS AFTER NOVEMBER 9, 1978 For effectiveness of exemption for certain electric powerplants as prior to 180 days after Nov. 9, 1978, see section 902(a) of Pub. L. 95–620, set out as a note under section 8301 of this title. § 8352. Permanent exemptions (a) Permanent exemption due to lack of alter- nate fuel supply, site limitations, or environ- mental requirements (1) After consideration of a petition (and com- ments thereon) for an exemption from one or more of the prohibitions of part A for a power- plant, the Secretary shall, by order, grant a per- manent exemption under this subsection for the use of natural gas or petroleum, if he finds that the petitioner has demonstrated that despite diligent good faith efforts— (A) it is likely that an adequate and reliable supply of coal or other alternate fuels of the quality necessary to conform with design and operational requirements for use as a primary energy source will not be available to such powerplant at a cost (taking into account as-