42 U.S.C. § 8352 — Permanent exemptions

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- Page 7596 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 8352 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 using imported petroleum as a primary energy source during the remaining useful life of the powerplant; (B) 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 (C) the prohibitions of part A could not be satisfied without violating applicable environ- mental requirements. (2) Notwithstanding the preceding provisions of this subsection, a powerplant which has been granted an exemption under subsection (g) may not be granted an exemption under this sub- section. (b) Permanent exemption due to certain State or local 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 may, by order, grant a per- manent exemption under this subsection, if he finds that the petitioner has demonstrated that— (1) with respect to the site of the power- plant, the operation of such a facility using coal or any other alternate fuel is infeasible because of a State or local requirement; (2) if such State or local requirement is under a building code or nuisance or zoning law, no other exemption under this part could be granted for such facility; and (3) the granting of the exemption would be in the public interest and would be consistent with the purposes of this chapter. (c) Permanent exemption for cogeneration After consideration of a petition (and com- ments thereon) for an exemption from one or more of the prohibitions of part A for a cogen- eration facility, the Secretary may, by order, grant a permanent exemption under this sub- section, if he— (1) finds that the petitioner has dem- onstrated that economic and other benefits of cogeneration are unobtainable unless petro- leum or natural gas, or both, are used in such facility, and (2) includes in the final order a statement of the basis for such finding. (d) Permanent exemption for certain fuel mix- tures containing natural gas or petroleum (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, if he finds that the petitioner has demonstrated that— (A) the powerplant uses, or proposes to use, a mixture of petroleum or natural gas and coal or another alternate fuel as a primary energy source; and (B) the amount of the petroleum or natural gas used in such mixture will not exceed the minimum percentage of the total Btu heat input of the primary energy sources of such powerplant needed to maintain reliability of operation of the unit consistent with main- taining a reasonable level of fuel efficiency, as determined in accordance with rules pre- scribed by the Secretary. (2) Repealed. Pub. L. 100–42, § 1(c)(12)(A), May 21, 1987, 101 Stat. 313. (3) The Secretary may authorize a higher per- centage than that referred to in paragraph (1)(B) if he finds that the higher percentage of natural gas allowed would be mixed with synthetic fuels derived from municipal wastes or agricultural wastes and would encourage the use of alternate or new technologies which use renewable sources of energy. (e) Permanent exemption for emergency pur- poses 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, if he finds that the petitioner has demonstrated that such powerplant will be maintained and oper- ated only for emergency purposes (as defined by rule by the Secretary). (f) Permanent 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 a per- manent exemption under this subsection, if he finds that— (1) the powerplant is operated solely as a peakload powerplant; (2) a denial of such petition is likely to re- sult in an impairment of reliability of service; and (3)(A) modification of the powerplant to per- mit compliance with such prohibitions is tech- nically infeasible; or (B) such modification would result in an un- reasonable expense. (g) Permanent exemption for intermediate load powerplants (1) After consideration of a petition (and com- ments thereon) for an exemption from one or more of the prohibitions of part A on the use of petroleum by a powerplant, the Secretary may, by order, grant a permanent exemption under this subsection, if he finds that the petitioner has demonstrated that— (A) the Administrator of the Environmental Protection Agency (or the appropriate State air pollution control agency) certifies to the Secretary that the use by such powerplant of coal or any available alternate fuel as a pri- mary energy source will cause or contribute to a concentration, in an air quality control re- gion or any area within such region, of a pol- lutant for which any national ambient air quality standard is or would be exceeded for such area; (B) such powerplant is to be operated only to replace no more than the equivalent capacity of existing electric powerplants— (i) which use natural gas or petroleum as a primary energy source, Page 7597 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 8353 (ii) which are owned by the same person who is to operate such powerplant, and (iii) which, if they used coal as a primary energy source, would cause or contribute to such a concentration in such region; (C) such powerplant is and shall continue to be operated solely as an intermediate load powerplant; (D) the net fuel heat input rate for such pow- erplant will be maintained at or less than 9,500 Btu’s per kilowatt hour throughout the re- maining useful life of the powerplant; and (E) the powerplant has the capability to use synthetic fuels derived from coal or other al- ternate fuel. (2) The Secretary shall, from time to time, re- view each exemption granted to a powerplant under this subsection, and shall terminate such exemption if he finds that there is available a supply of synthetic fuel derived from coal or other alternate fuel suitable for use as a pri- mary energy source by such powerplant. (h) Permanent exemption for use of natural gas by certain powerplants with capacities of less than 250 million Btu’s per hour (1) Subject to paragraph (2), after consider- ation of a petition (and comments thereon) for an exemption from any prohibition of part A for the use of natural gas by a powerplant, the Sec- retary shall, by order, grant a permanent ex- emption under this subsection for such use, if he finds that the petitioner has demonstrated that— (A) such powerplant has a design capability of consuming fuel (or any mixture thereof) at a fuel heat input rate of less than 250 million Btu’s per hour; (B) such powerplant was a baseload power- plant on April 20, 1977; and (C) such powerplant is not capable of con- suming coal without— (i) substantial physical modification of the unit; or (ii) substantial reduction in the rated ca- pacity of the unit (as determined by the Sec- retary). (2) An exemption under this subsection may only apply to the prohibitions under section 8341 of this title and prohibitions established by final rules or orders issued before January 1, 1990. (i) Permanent exemption for use of LNG by cer- tain powerplants 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 liquefied natural gas if the Administrator of the Environmental Protection Agency (or the appropriate State air pollution control agency) has certified to the Secretary that the use of coal by such powerplant as a primary energy source will cause or contribute to a concentra- tion, in an air quality control region or any area within such region, of a pollutant for which any national ambient air quality standard is or would be exceeded for such region or area and the use of coal would not comply with applicable environmental requirements. (Pub. L. 95–620, title III, § 312, Nov. 9, 1978, 92 Stat. 3309; Pub. L. 100–42, § 1(c)(10), (12), May 21, 1987, 101 Stat. 313.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsec. (b)(3), was in the original ‘‘this Act’’, meaning Pub. L. 95–620, Nov. 9, 1978, 92 Stat. 3289, known as the Powerplant and Indus- trial 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. AMENDMENTS 1987—Subsecs. (a)(1), (b), (d)(1). Pub. L. 100–42, § 1(c)(10), struck out ‘‘or installation’’ after ‘‘power- plant’’ wherever appearing. Subsec. (d)(2). Pub. L. 100–42, § 1(c)(12)(A), struck out par. (2) which read as follows: ‘‘In the case of an exist- ing major fuel-burning installation, the percentage de- termined by the Secretary under subparagraph (B) of paragraph (1) shall not be less than 25 percent.’’ Subsec. (d)(3). Pub. L. 100–42, § 1(c)(12)(B), substituted ‘‘The’’ for ‘‘In the case of an existing electric power- plant, the’’. Subsec. (e). Pub. L. 100–42, § 1(c)(10), struck out ‘‘or in- stallation’’ after ‘‘powerplant’’ wherever appearing. Subsec. (j). Pub. L. 100–42, § 1(c)(12)(C), struck out sub- sec. (j) which related to granting, by Secretary of En- ergy, of permanent exemptions for use of natural gas for installations served by international pipelines. Subsec. (k). Pub. L. 100–42, § 1(c)(12)(C), struck out subsec. (k) which related to granting, by Secretary of Energy, of permanent exemptions for use of natural gas or petroleum for installations based upon product or process requirements. Subsec. (l). Pub. L. 100–42, § 1(c)(12)(C), struck out sub- sec. (l) which related to granting, by Secretary of En- ergy, of permanent exemptions for use of natural gas or petroleum for installations necessary to meet sched- uled equipment outages. 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. § 8353. General requirements for exemptions (a) Use of mixtures or fluidized bed combustion not feasible Except in the case of an exemption under sec- tion 8352(b), (f), or (i) of this title, the Secretary may grant a permanent exemption for a power- plant under this part only— (1) if the applicant has demonstrated that the use of a mixture of natural gas or petro- leum and coal (or other alternate fuels), for which an exemption under section 8352(b) of this title would be available, is not economi- cally or technically feasible; and (2) if the Secretary has not made a finding that the use of a method of fluidized bed com- bustion of coal or an alternate fuel is economi- cally and technically feasible. (b) No alternative power supply in case of a pow- erplant (1) In the case of an exemption under section 8352(b) or (g) of this title, the Secretary may not