42 U.S.C. § 8402 — Loans to assist powerplant acquisitions of

Page 7604 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 8402 (Pub. L. 96–514, title II, § 201, Dec. 12, 1980, 94 Stat. 2975.) Editorial Notes REFERENCES IN TEXT For effective date of section 8401 of this title, referred to in par. (2), see section 901 of Pub. L. 95–620, set out as an Effective Date note under section 8301 of this title. CODIFICATION Section was enacted as part of the Department of the Interior and Related Agencies Appropriations Act, 1981, and not as part of the Powerplant and Industrial Fuel Use Act of 1978 which comprises this chapter. § 8402. Loans to assist powerplant acquisitions of air pollution control equipment (a) Authority to make loans The Secretary may, in accordance with the provisions of this section and such rules and reg- ulations as he shall prescribe, make a loan (and may make a commitment to loan) to any person who owns or operates any existing electric pow- erplant converting to coal or other alternate fuel as its primary energy source after the effec- tive date of this chapter for the purpose of fi- nancing the purchase and installation of one or more certified air pollution control devices for such electric powerplant. (b) Limitations and conditions A loan made under this section shall— (1) not exceed two-thirds of the cost of pur- chasing and installing the certified air pollu- tion control devices; (2) have a maturity date not extending be- yond 10 years after the date such loan is made; (3) bear interest at a rate not less than (A) a rate determined by the Secretary of the Treasury, taking into consideration the aver- age market yield of outstanding Treasury ob- ligations of comparable maturity, plus (B) 1 percent; (4) be made on the condition of payment to the Secretary of a loan fee in an amount equal to (A) such insurance fee as the Secretary de- termines is necessary to avoid a Federal rev- enue loss under this section, plus (B) 1 percent of the loan amount; and (5) be made only if the Secretary finds that— (A) the financial assistance applied for is not otherwise available from other Federal agencies; (B) the applicant is unable to obtain suffi- cient funds on reasonable terms and condi- tions from any other source; (C) there is continued reasonable assur- ance of full repayment of the principal, in- terest, and fees; and (D) competition among private entities for the provision of air pollution control devices for electric powerplants using coal as their primary energy source to be assisted under this section will be in no way limited or pre- cluded. (c) Allocation and priorities In making loans or commitments to loan pur- suant to this section, the Secretary shall— (1) allocate a minimum of 25 percent of available financial assistance to existing small municipal and rural powerplants; and (2) give priority consideration to requests for financial assistance by existing electric powerplants subject to any prohibition under subchapter III (or under section 792 of title 15). (d) Definitions For purposes of this section— (1) The term ‘‘certified pollution control de- vice’’ means a new identifiable device which— (A) is used, in connection with a power- plant, to abate or control atmospheric pollu- tion by removing, altering, disposing, stor- ing, or preventing the emission of pollut- ants; (B) the appropriate State air pollution control agency has certified to the Adminis- trator of the Environmental Protection Agency that such device is needed to meet, and is in conformity with, State require- ments for abatement or control of atmos- pheric pollution or contamination; (C) the Administrator of the Environ- mental Protection Agency has certified to the Secretary as not duplicating or dis- placing existing air pollution control devices with a remaining useful economic life in ex- cess of 2 years and as otherwise being in fur- therance of the requirements and purposes of the Clean Air Act [42 U.S.C. 7401 et seq.]; (D) does not constitute or include a build- ing, or a structural component of a building, other than a building used exclusively for the purposes set forth in subparagraph (A); and (E) the construction of which began after the effective date of this chapter. (2) The term ‘‘small municipal or rural coop- erative electric powerplant’’ means an electric generating unit, which— (A) by design is not capable of consuming fuel at a fuel heat input rate in excess of a rate determined appropriate by the Sec- retary by rule; and (B) is owned or operated by a municipality or a rural electric cooperative. (e) Records (1) The Secretary shall require all persons re- ceiving financial assistance under this section to keep such records as the Secretary shall pre- scribe, including records which fully disclose the amount and disposition by such recipient of the proceeds of such assistance, the total cost of the project or undertaking in connection with which such assistance was given or used, the amount of that portion of the cost of the project or under- taking supplied by other sources, and such other records as will facilitate an effective audit. (2) The Secretary and the Comptroller General of the United States, or any of their duly au- thorized representatives, shall, until the later of— (A) the expiration of 3 years after comple- tion of the project or undertaking referred to in subsection (a), or (B) full repayment of interest and principal on a loan made under this section, occurs, have access for the purposes of audit, evalua- tion, examination to any books, documents, pa- pers, and records of such receipts which in the opinion of the Secretary or the Comptroller Page 7605 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 8411 General may be related or pertinent to such loan. (f) Default (1) If there is a default in any payment by the obligor of interest or principal due under a loan entered into by the Secretary under this section and such default has continued for 90 days, the Secretary has the right to demand payment of such unpaid amount, unless the Secretary finds that such default has been remedied, or a satis- factory plan to remedy such default by the obli- gor has been accepted by the Secretary. (2) In demanding payment of unpaid interest or principal by the obligor, the Secretary has all rights specified in the loan-related agreements with respect to any security which he held with respect to the loan, including the authority to complete, maintain, operate, lease, sell, or oth- erwise dispose of any property acquired pursu- ant to such loan or related agreements. (3) If there is a default under any loan, the Secretary shall notify the Attorney General who shall take such action against the obligator or other parties liable thereunder as is, in his dis- cretion, necessary to protect the interests of the United States. The holder of such loan shall make available to the United States all records and evidence necessary to prosecute any such suit. (g) Deposit of receipts Amounts received by the Secretary as prin- cipal, interest, fees, proceeds from security ac- quired following default, or other amounts re- ceived by the Secretary in connection with loans made under this section shall be paid into the Treasury of the United States as miscella- neous receipts. (h) Authorization of appropriation There are hereby authorized to be appro- priated to the Secretary such sums as may be necessary to carry out the purposes of this sec- tion, but not to exceed $400,000,000 for fiscal year 1979 and $400,000,000 for fiscal year 1980. Author- ity granted to the Secretary under subsection (a) may be exercised only to the extent as may be provided in advance in appropriation Acts. (Pub. L. 95–620, title VI, § 602, Nov. 9, 1978, 92 Stat. 3327.) Editorial Notes REFERENCES IN TEXT The effective date of this chapter, referred to in sub- secs. (a) and (d)(1)(E), is the effective date of Pub. L. 95–620. See section 901 of Pub. L. 95–620, set out as an Effective Date note under section 8301 of this title. The Clean Air Act, referred to in subsec. (d)(1)(C), is act July 14, 1955, ch. 360, 69 Stat. 322, which is classified generally to chapter 85 (§ 7401 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 7401 of this title and Tables. SUBCHAPTER VII—ADMINISTRATION AND ENFORCEMENT PART A—PROCEDURES § 8411. Administrative procedures (a) General rulemaking Except to the extent otherwise provided in this section or other provisions of this chapter, rules prescribed under this chapter shall be made in accordance with the procedures set forth in section 553 of title 5. (b) Notices of rules and orders imposing prohibi- tions Before the Secretary prescribes any rule or issues any order imposing a prohibition under this chapter, he shall publish such proposed rule or order in the Federal Register, together with a statement of the reasons for such rule or order and, in the case of a rule, a detailed statement of any special circumstances or characteristics required to be taken into account in prescribing such rule. A copy shall be transmitted to the person who operates any such powerplant re- quired to be specifically identified in such rule or order. (c) Petitions for exemptions (1) Any petition for an exemption from any prohibition under this chapter shall be filed at such time and shall be in such form as the Sec- retary shall by rule prescribe. The Secretary, upon receipt of such petition, shall publish a no- tice thereof in the Federal Register together with a statement of the reasons set forth in such a petition for requesting such exemption, and provide a period of public comment of at least 45 days for written comments thereon. Rules re- quired under this paragraph shall be prescribed not later than 120 days after November 9, 1978. (2) The Secretary, upon receipt of such peti- tion, shall notify the appropriate State agencies having primary authority to permit or regulate the construction or operation of the electric powerplant which is the subject of such petition, and, to the maximum extent practicable, con- sult with such agencies. (3) The Secretary, within 6 months after the period for public comment and hearing applica- ble to any petition for an exemption, shall issue a final order granting or denying the petition for such exemption, except that the Secretary may extend such period to a specified date if he publishes notice thereof in the Federal Register and includes with such notice a statement of the reasons for such extension. (d) Public comment on prohibitions and exemp- tions (1) In the case of any proposed rule or order by the Secretary imposing a prohibition or any pe- tition for any order granting an exemption under this chapter, any interested person shall be afforded an opportunity to present oral data, views, and arguments at a public hearing. At such hearing any interested person shall have an opportunity to question— (A) other interested persons who make oral presentations, (B) employees and contractors of the United States who have made written or oral presen- tations or who have participated in the devel- opment of the proposed rule or order or in the consideration of such petition, and (C) experts and consultants who have pro- vided information to any person who makes an oral presentation and which is contained in or referred to in such presentation, with respect to disputed issues of material fact, except that the Secretary may restrict ques-