42 U.S.C. § 8311 — Coal capability of new electric power-

Page 7588 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 8303 which paragraph (1) applied during the annual period ending with the calendar month pre- ceding the date of such report; and (B) the amount, quality, and point of deliv- ery by the pipeline to such person of the nat- ural gas covered by paragraph (1) which is used by the person during such annual period. (3) Repealed. Pub. L. 100–42, § 1(c)(2)(H), May 21, 1987, 101 Stat. 310. (4) For purposes of this subsection, the term ‘‘pipeline’’ means any interstate or intrastate pipeline or local distribution company. (Pub. L. 95–620, title I, § 103, Nov. 9, 1978, 92 Stat. 3292; Pub. L. 100–42, § 1(c)(2), May 21, 1987, 101 Stat. 310.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsecs. (a) and (b)(1), was in the original ‘‘this Act’’, meaning Pub. L. 95–620, Nov. 9, 1978, 92 Stat. 3289, known as the Powerplant and In- dustrial Fuel Use Act of 1978, which is classified prin- cipally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 8301 of this title and Tables. The Clean Air Act, referred to in subsec. (a)(17)(B), 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. The Federal Water Pollution Control Act, referred to in subsec. (a)(17)(B), is act June 30, 1948, ch. 758, as amended generally by Pub. L. 92–500, § 2, Oct. 18, 1972, 86 Stat. 816, which is classified generally to chapter 26 (§ 1251 et seq.) of Title 33, Navigation and Navigable Wa- ters. For complete classification of this Act to the Code, see Short Title note set out under section 1251 of Title 33 and Tables. The Solid Waste Disposal Act, referred to in subsec. (a)(17)(B), is title II of Pub. L. 89–272, Oct. 20, 1965, 79 Stat. 997, as amended generally by Pub. L. 94–580, § 2, Oct. 21, 1976, 90 Stat. 2795, which is classified generally to chapter 82 (§ 6901 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 6901 of this title and Tables. The National Environmental Policy Act of 1969, re- ferred to in subsec. (a)(17)(B), is Pub. L. 91–190, Jan. 1, 1970, 83 Stat. 852, which is classified generally to chap- ter 55 (§ 4321 et seq.) of this title. For complete classi- fication of this Act to the Code, see Short Title note set out under section 4321 of this title and Tables. AMENDMENTS 1987—Subsec. (a)(13)(B)(ii). Pub. L. 100–42, § 1(c)(2)(A), inserted ‘‘and’’ at end of subcl. (I), substituted period for ‘‘; or’’ at end of subcl. (II), and struck out subcl. (III) which read as follows: ‘‘in the case of a major fuel- burning installation, without incurring significant operational detriment of the unit (as determined by the Secretary).’’ Subsec. (a)(15). Pub. L. 100–42, § 1(c)(2)(B), struck out ‘‘or major fuel-burning installation’’ after ‘‘electric powerplant’’. Subsec. (a)(16). Pub. L. 100–42, § 1(c)(2)(C), struck out ‘‘or installation’’ after ‘‘any powerplant’’ in introduc- tory provisions and after ‘‘such powerplant’’ in intro- ductory provisions and subpar. (D). Subsec. (a)(19). Pub. L. 100–42, § 1(c)(2)(D), struck out ‘‘or a major fuel-burning installation’’ after ‘‘electric powerplant’’. Subsec. (a)(20). Pub. L. 100–42, § 1(c)(2)(E), struck out ‘‘or major fuel-burning installation’’ after ‘‘life of an electric powerplant’’. Subsec. (b)(1). Pub. L. 100–42, § 1(c)(2)(F), struck out ‘‘or major fuel-burning installation’’ after ‘‘used by a powerplant’’ in introductory provisions. Subsec. (b)(1)(D). Pub. L. 100–42, § 1(c)(2)(G), sub- stituted a period for ‘‘, except that for purposes of the prohibition under section 8311(2) of this title against powerplants being constructed without the capability of using coal or another alternate fuel, only permits, li- censes, and approvals for the construction of such syn- thetic gas facilities shall be required under this sub- paragraph to be certified and documented.’’ Subsec. (b)(2). Pub. L. 100–42, § 1(c)(2)(F), struck out ‘‘or major fuel-burning installation’’ after ‘‘by any powerplant’’ in introductory provisions. Subsec. (b)(3). Pub. L. 100–42, § 1(c)(2)(H), struck out par. (3) which read as follows: ‘‘In the case of any boiler subject to a prohibition under section 8371 of this title, the preceding provisions of this subsection shall apply with respect to such boiler to the same extent and in the same manner as they apply in the case of major fuel-burning installations.’’ Executive Documents TRANSFER OF FUNCTIONS For transfer of certain functions from Nuclear Regu- latory Commission to Chairman thereof, see Reorg. Plan No. 1 of 1980, 45 F.R. 40561, 94 Stat. 3585, set out as a note under section 5841 of this title. § 8303. Territorial application The provisions of this chapter shall only apply within the contiguous 48 States and the District of Columbia. (Pub. L. 95–620, title I, § 104, Nov. 9, 1978, 92 Stat. 3298; Pub. L. 100–42, § 1(c)(3), May 21, 1987, 101 Stat. 311.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in text, was in the original ‘‘this Act’’, meaning Pub. L. 95–620, Nov. 9, 1978, 92 Stat. 3289, known as the Powerplant and Industrial Fuel Use Act of 1978, which is classified principally to this chap- ter. For complete classification of this Act to the Code, see Short Title note set out under section 8301 of this title and Tables. AMENDMENTS 1987—Pub. L. 100–42 amended section generally. Prior to amendment, section read as follows: ‘‘The provisions of this chapter shall apply in all the States, Puerto Rico, and the territories and possessions of the United States, except that— ‘‘(1) the provisions of subchapters II and III of this chapter (other than section 8341 of this title) shall only apply to powerplants and installations situated within the contiguous 48 States, Alaska, and the Dis- trict of Columbia; and ‘‘(2) the provisions of section 8341 of this title shall only apply to powerplants situated within the contig- uous 48 States and the District of Columbia.’’ SUBCHAPTER II—NEW FACILITIES PART A—PROHIBITIONS § 8311. Coal capability of new electric power- plants; certification of compliance (a) General prohibition Except to such extent as may be authorized under part B, no new electric powerplant may be constructed or operated as a base load power- plant without the capability to use coal or an- other alternate fuel as a primary energy source. (b) Capability to use coal or alternate fuel An electric powerplant has the capability to use coal or another alternate fuel for purposes of this section if such electric powerplant— Page 7589 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 8321 1 So in original. Probably should be ‘‘not’’. (1) has sufficient inherent design character- istics to permit the addition of equipment (in- cluding all necessary pollution devices) nec- essary to render such electric powerplant ca- pable of using coal or another alternate fuel as its primary energy source; and (2) is not physically, structurally, or techno- logically precluded from using coal or another alternate fuel as its primary energy source. Capability to use coal or another alternate fuel shall not be interpreted to require any such pow- erplant to be immediately able to use coal or an- other alternate fuel as its primary energy source on its initial day of operation. (c) Applicability to base load powerplants (1) This section shall apply only to base load powerplants, and shall not apply to peakload powerplants or intermediate load powerplants. (2) For the purposes of this section, hours of electrical generation pursuant to emergency sit- uations, as defined by the Secretary and re- ported to the Secretary, shall not be included in a determination of whether a powerplant is being operated as a base load powerplant. (d) Self-certification (1) In order to meet the requirement of sub- section (a), the owner or operator of any new electric powerplant to be operated as a base load powerplant proposing to use natural gas or pe- troleum as its primary energy source shall cer- tify to the Secretary prior to construction, or prior to operation as a base load powerplant in the case of a new electric powerplant operated as a peakload powerplant or intermediate load powerplant, that such powerplant has capability to use coal or another alternate fuel, within the meaning of subsection (b). Such certification shall be effective to establish compliance with the requirement of subsection (a) as of the date it is filed with the Secretary. Within 15 days after receipt of a certification submitted pursu- ant to this paragraph, the Secretary shall pub- lish in the Federal Register a notice reciting that the certification has been filed. (2) The Secretary, within 60 days after the fil- ing of a certification under paragraph (1), may require the owner or operator of such power- plant to provide such supporting documents as may be necessary to verify the certification. (Pub. L. 95–620, title II, § 201, Nov. 9, 1978, 92 Stat. 3298; Pub. L. 100–42, § 1(c)(4)(A), May 21, 1987, 101 Stat. 311.) Editorial Notes AMENDMENTS 1987—Pub. L. 100–42 substituted ‘‘Coal capability of new electric powerplants; certification of compliance’’ for ‘‘New electric powerplants’’ in section catchline and amended text generally. Prior to amendment, text read as follows: ‘‘Except to such extent as may be author- ized under part B— ‘‘(1) natural gas or petroleum shall not be used as a primary energy source in any new electric power- plant; and ‘‘(2) no new electric powerplant may be constructed without the capability to use coal or any other alter- nate fuel as a primary energy source.’’ § 8312. Repealed. Pub. L. 100–42, § 1(a)(1), May 21, 1987, 101 Stat. 310 Section, Pub. L. 95–620, title II, § 202, Nov. 9, 1978, 92 Stat. 3298, prohibited, except to extent authorized under part B, use of natural gas or petroleum as pri- mary energy source in new major fuel-burning installa- tion consisting of a boiler, and authorized Secretary to prohibit nonboilers from using natural gas or petro- leum. PART B—EXEMPTIONS § 8321. Temporary exemptions (a) General exemption due to lack of alternate fuel supply, site limitations, or environ- mental requirements After consideration of a petition (and com- ments thereon) for an exemption for a power- plant from the prohibitions of part A, the Sec- retary shall, by order, grant an exemption under this subsection for the use of natural gas or pe- troleum, 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 cost, as determined by rule by the Secretary, of the fuel that would be used as a primary energy source; (2) one or more site limitations exist which would ot 1 permit the location or operation of such a powerplant using coal or any other al- ternate fuel as a primary energy source; or (3) the prohibitions of section 8311 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 for a power- plant from the prohibitions of part A, the Sec- retary shall, by order, grant an exemption under this subsection for the use of natural gas or pe- troleum, if he finds that the petitioner has dem- onstrated 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 8324(b) of this title. (c), (d) Repealed. Pub. L. 100–42, § 1(c)(5)(E), May 21, 1987, 101 Stat. 312 (e) Duration of temporary exemptions (1) Except as provided in paragraph (2), exemp- tions under this section for any powerplant may