42 U.S.C. § 8322 — Permanent exemptions

Page 7590 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 8322 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) An exemption under subsection (b) may be extended beyond the 5-year limit under para- graph (1), but such exemption, so extended, may not exceed 10 years. (3) If an exemption is granted for any power- plant before the powerplant is placed in service, the period before it is placed in service shall not be taken into account in computing the 5-year and the 10-year limitations of paragraphs (1) and (2). (Pub. L. 95–620, title II, § 211, Nov. 9, 1978, 92 Stat. 3299; Pub. L. 100–42, § 1(c)(5), May 21, 1987, 101 Stat. 312.) Editorial Notes AMENDMENTS 1987—Subsec. (a). Pub. L. 100–42, § 1(c)(5)(A)–(D), sub- stituted ‘‘from’’ for ‘‘or installation from one or more of’’ in introductory provisions, substituted ‘‘the fuel that would be used’’ for ‘‘using imported petroleum’’ and struck out ‘‘or installation’’ after ‘‘powerplant’’ in par. (1), struck out ‘‘or installation’’ after ‘‘power- plant’’ in par. (2), and struck out ‘‘or 8312’’ after ‘‘8311’’ in par. (3). Subsec. (b). Pub. L. 100–42, § 1(c)(5)(A), substituted ‘‘from’’ for ‘‘or installation from one or more of’’. Subsec. (c). Pub. L. 100–42, § 1(c)(5)(E), struck out sub- sec. (c) which read as follows: ‘‘After consideration of a petition (and comments thereon) for an exemption for a powerplant or installation from one or more of the prohibitions of part A, 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 would be in the public interest and would be consistent with the purposes of this chapter.’’ Subsec. (d). Pub. L. 100–42, § 1(c)(5)(E), struck out sub- sec. (d) which read as follows: ‘‘After consideration of a petition (and comments thereon) for an exemption from the prohibition of the use of petroleum under sec- tion 8312 of this title for an installation with a design capacity of consuming any fuel (or any mixture there- of) at a fuel heat input rate which does not exceed 300 million Btu’s per hour, the Secretary may, by order, grant an exemption under this subsection for the use of petroleum if he finds that the petitioner has dem- onstrated, by the existence of binding contracts or other evidence, including appropriate State construc- tion permits, that he will use coal or another alternate fuel for at least 75 percent of the annual fuel heat input rate upon the expiration of such exemption. For provi- sions relating to authority to receive, consider and granting (or denying) certain petitons [sic] for an ex- emption under this subsection, see section 902(b).’’ Subsec. (e)(1), (3). Pub. L. 100–42, § 1(c)(5)(B), struck out ‘‘or installation’’ after ‘‘powerplant’’ wherever ap- pearing. Statutory Notes and Related Subsidiaries EXEMPTION FOR CERTAIN ELECTRIC POWERPLANTS AND TEMPORARY EXEMPTION ISSUED UNDER SUBSECTION (d) AS EFFECTIVE PRIOR TO 180 DAYS AFTER NOVEM- BER 9, 1978 For effectiveness of exemption for certain electric powerplants and the temporary exemption issued under subsec. (d) of this section as prior to 180 days after Nov. 9, 1978, see section 902 of Pub. L. 95–620, set out as a note under section 8301 of this title. § 8322. Permanent exemptions (a) Permanent exemption due to lack of alter- nate fuel supply, site limitations, environ- mental requirements, or adequate capital (1) 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 a permanent ex- emption under this subsection with respect to natural gas or petroleum, if he finds that the pe- titioner has demonstrated that despite diligent good faith efforts— (A) 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 (i) will not be available within the first 10 years of the useful life of the pow- erplant, or (ii) will not be available at a cost (taking into account associated facilities for the transportation and use of such fuel) which, based upon the best practicable estimates, does not substantially exceed the cost, as de- termined by rule by the Secretary, of the fuel that would be used as a primary energy source during the useful life of the powerplant in- volved; (B) one or more site limitations exist which would not permit the location or operation of such powerplant using coal or any other alter- nate fuel as a primary energy source; (C) the prohibitions of part A could not be satisfied without violating applicable environ- mental requirements; or (D) the required use of coal or any other al- ternate fuel would not allow the petitioner to obtain adequate capital for the financing of such powerplant. (2) The demonstration required to be made by a petitioner under paragraph (1) shall be made with respect to the site of such powerplant and reasonable alternative sites. (b) Permanent exemption due to certain State or local 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 may, by order, grant a permanent exemp- tion under this subsection with respect to nat- ural gas or petroleum, if he finds that the peti- tioner has demonstrated that— (1) with respect to the proposed site of the powerplant, the construction or operation of such a facility using coal or any other alter- nate fuel is infeasible because of a State or local requirement (other than a building code or a nuisance or zoning law); (2) there is no reasonable alternative site for such powerplant which meets the criteria set forth in subsection (a)(1)(A) through (D); 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, Page 7591 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 8323 grant a permanent exemption under this sub- section with respect to natural gas or petro- leum, 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 mixtures containing natural gas or petroleum 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 a permanent ex- emption under this subsection with respect to natural gas or petroleum, if he finds that the pe- titioner has demonstrated that— (1) 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 (2) 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 such powerplant consistent with maintaining a reasonable level of fuel effi- ciency, as determined in accordance with rules prescribed by the Secretary. (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 with respect to natural gas or petroleum, if he finds that the petitioner has demonstrated that such powerplant will be maintained and operated only for emergency purposes (as defined by rule by the Secretary). (f) Permanent exemption for powerplants nec- essary to maintain reliability of service 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, the Secretary may, by order, grant a permanent exemption under this subsection with respect to natural gas or petroleum if he finds that the petitioner has demonstrated that— (1) such exemption is necessary to prevent impairment of reliability of service, and (2) the petitioner, despite diligent good faith efforts, is not able to make the demonstration necessary to obtain an exemption under sub- section (a) or (b) in the time required to pre- vent such impairment of service. (Pub. L. 95–620, title II, § 212, Nov. 9, 1978, 92 Stat. 3300; Pub. L. 100–42, § 1(c)(6), May 21, 1987, 101 Stat. 312.) 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—Subsec. (a)(1). Pub. L. 100–42, § 1(c)(6)(A)–(C), substituted ‘‘from’’ for ‘‘or installation from one or more of’’ in introductory provisions, substituted ‘‘the fuel that would be used’’ for ‘‘using imported petro- leum’’ and struck out ‘‘or installation’’ after ‘‘power- plant’’ wherever appearing in subpar. (A), and struck out ‘‘or installation’’ after ‘‘powerplant’’ in subpars. (B) and (D). Subsec. (a)(2). Pub. L. 100–42, § 1(c)(1)(D), struck out ‘‘— ‘‘(A) in the case of a new major fuel-burning instal- lation, be made with respect to the site of such in- stallation proposed by the petitioner; and ‘‘(B) in the case of a new electric powerplant,’’ after ‘‘paragraph (1) shall’’. Subsec. (a)(3). Pub. L. 100–42, § 1(c)(6)(E), struck out par. (3) which read as follows: ‘‘Notwithstanding the preceding provisions of this subsection, a powerplant which has been granted an exemption under subsection (h) may not be granted an exemption under this sub- section.’’ Subsec. (b). Pub. L. 100–42, § 1(c)(6)(A), (B), (F), in in- troductory provisions substituted ‘‘from’’ for ‘‘or in- stallation from one or more of’’, in par. (1) struck out ‘‘or installation’’ after ‘‘powerplant’’, and in par. (2) struck out ‘‘in the case of a powerplant,’’ after ‘‘(2)’’. Subsec. (d). Pub. L. 100–42, § 1(c)(6)(A), (B), (G), struck out ‘‘(1)’’ before ‘‘After consideration of’’, substituted ‘‘from’’ for ‘‘installation from one or more of’’ in intro- ductory provisions, redesignated subpars. (A) and (B) of former par. (1) as pars. (1) and (2), respectively, struck out ‘‘or installation’’ after ‘‘powerplant’’ wherever ap- pearing in such pars., and struck out former par. (2) which read as follows: ‘‘In the case of a new major fuel- burning installation, the percentage determined by the Secretary under subparagraph (B) of paragraph (1) shall not be less than 25 percent.’’ Subsec. (e). Pub. L. 100–42, § 1(c)(6)(B), struck out ‘‘or installation’’ after ‘‘powerplant’’ wherever appearing. Subsec. (g). Pub. L. 100–42, § 1(c)(6)(H), struck out sub- sec. (g) which related to issuance, by order of Secretary of Energy, of permanent exemptions for use of natural gas or petroleum for peakload powerplants. Subsec. (h). Pub. L. 100–42, § 1(c)(6)(H), struck out sub- sec. (h) which related to issuance, by order of Secretary of Energy, of permanent exemptions for use of petro- leum for intermediate load powerplants. Subsec. (i). Pub. L. 100–42, § 1(c)(6)(H), struck out sub- sec. (i) which related to issuance, by order of Secretary of Energy, of permanent exemptions for use of natural gas or petroleum for installations based upon product or process requirements. Subsec. (j). Pub. L. 100–42, § 1(c)(6)(H), struck out sub- sec. (j) which related to issuance, by order of Secretary of Energy, of permanent exemptions for use of natural gas or petroleum for installations necessary to meet scheduled 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. § 8323. General requirements for exemptions (a) Use of mixtures or fluidized bed combustion not feasible Except in the case of an exemption under sec- tion 8322(d) of this title, the Secretary may