42 U.S.C. § 8412 — Judicial review

Page 7606 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 8412 tioning if he determines that such questioning is duplicative or is not likely to result in a timely and effective resolution of such issues. Any oral or documentary evidence may be received, but the Secretary as a matter of policy shall provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence. (2) A rule or order subject to this section may not be issued except on consideration of the whole record or those parts thereof cited by a party and supported by and in accordance with the reliable, probative, and substantial evidence. (e) Transcript A transcript shall be kept of any public hear- ing made in accordance with this section. (f) Environmental Protection Agency comment A copy of any proposed rule or order to be pre- scribed or issued by the Secretary which im- poses a prohibition under this chapter (other than under section 8374 of this title), or a peti- tion for an exemption (or permit) under this chapter (other than under section 8374 of this title), shall be transmitted by the Secretary to the Administrator of the Environmental Protec- tion Agency and the Secretary shall request such agency to comment thereon within the pe- riod provided to the public unless a longer pe- riod is provided under the Clean Air Act [42 U.S.C. 7401 et seq.]. In any such case, the Admin- istrator of the Environmental Protection Agen- cy shall be afforded the same opportunity to comment and question as is provided other in- terested persons under subsection (d). (g) Repealed. Pub. L. 100–42, § 1(c)(16)(E), May 21, 1987, 101 Stat. 313 (h) Coordination with other provisions of law (1) Except as provided in sections 8412(c)(4), 8433(d)(5), and 8434 of this title, title V of the De- partment of Energy Organization Act (42 U.S.C. 7191, et seq.) shall not apply with respect to this chapter. (2) The preceding provisions of this section shall not apply with respect to any exercise of authority under section 8374 of this title. (3) The procedures applicable under this chap- ter shall not— (A) be considered to be modified or affected by any other provision of law unless such other provision specifically amends this chap- ter (or provisions of law cited herein), or (B) be considered to be superseded by any other provision of law unless such other provi- sion does so in specific terms, referring to this chapter, and declaring that such provision su- persedes, in whole or in part, the procedures of this chapter. (Pub. L. 95–620, title VII, § 701, Nov. 9, 1978, 92 Stat. 3329; Pub. L. 100–42, § 1(c)(16), May 21, 1987, 101 Stat. 313.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsecs. (a) to (c)(1), (d)(1), (f), and (h)(1), (3), 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 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. (f), 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 Department of Energy Organization Act, referred to in subsec. (h)(1), is Pub. L. 95–91, Aug. 4, 1977, 91 Stat. 567. Title V of the Department of Energy Organization Act is classified generally to subchapter V (§ 7191 et seq.) of chapter 84 of this title. For complete classifica- tion of this Act to the Code, see Short Title note set out under section 7101 of this title and Tables. AMENDMENTS 1987—Subsec. (b). Pub. L. 100–42, § 1(c)(16)(A), struck out ‘‘(other than under section 8372 of this title)’’ after ‘‘this chapter’’ and ‘‘or installation’’ after ‘‘power- plant’’. Subsec. (c)(1). Pub. L. 100–42, § 1(c)(16)(B)(i), (ii), struck out ‘‘or for any permit under section 8375 of this title’’ after ‘‘this chapter’’ and ‘‘or permit’’ after ‘‘such exemption’’. Subsec. (c)(2). Pub. L. 100–42, § 1(c)(16)(B)(iii), struck out ‘‘or, where appropriate, major fuel-burning instal- lation’’ after ‘‘powerplant’’. Subsec. (c)(3). Pub. L. 100–42, § 1(c)(16)(B)(i), struck out ‘‘or permit’’ after ‘‘exemption’’ in two places. Subsec. (c)(4). Pub. L. 100–42, § 1(c)(16)(B)(iv), struck out par. (4) which read as follows: ‘‘Any order for the approval of a system compliance plan under section 8391 of this title, and any petition for such an order, shall be treated for purposes of this subchapter the same as an order (or petition) for an exemption.’’ Subsec. (d)(1). Pub. L. 100–42, § 1(c)(16)(C), struck out ‘‘(or permit)’’ after ‘‘an exemption’’ and ‘‘(other than under section 8372 of this title)’’ after ‘‘under this chap- ter’’. Subsec. (f). Pub. L. 100–42, § 1(c)(16)(D), struck out ‘‘8372 or’’ after ‘‘(other than under section’’ in two places. Subsec. (g). Pub. L. 100–42, § 1(c)(16)(E), struck out subsec. (g) which read as follows: ‘‘A copy of any pro- posed rule or order to be prescribed or issued by the Secretary which imposes a prohibition under this chap- ter (other than under section 8372 or 8374 of this title) with respect to a major fuel-burning installation or a boiler subject to section 8371 of this title or a petition by such installation or boiler for an exemption (or per- mit) under this chapter (other than under section 8372 or 8374 of this title), shall be transmitted by the Sec- retary to the Federal Trade Commission and the Sec- retary shall request such Commission to comment thereon within the period provided to the public. In any such case, the Federal Trade Commission shall be af- forded the same opportunity to comment and question as is provided other interested persons under sub- section (d).’’ § 8412. Judicial review (a) Publication and delay of prohibition or ex- emption to allow for review Any final rule or order prescribed by the Sec- retary imposing a prohibition or granting an ex- emption (or permit) under this chapter shall be published in the Federal Register, and shall not take effect earlier than the 60th calendar day after such rule or order is published. (b) Publication of denial of exemption or permit Any final order issued by the Secretary deny- ing any petition for an exemption or a permit under this chapter shall be published in the Fed- eral Register, together with the reasons for such action. Page 7607 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 8422 (c) Judicial review (1) Any person aggrieved by any final rule or order referred to in subsection (a) or in section 8374 of this title, or by the denial of a petition for an order granting an exemption (or permit) referred to in subsection (b), may at any time before the 60th day after the date such rule, order, or denial is published under subsection (a) or (b), file a petition with the United States court of appeals for the circuit wherein such person resides, or has his principal place of busi- ness, for judicial review thereof. A copy of the petition shall be forthwith transmitted by the clerk of the court to the Secretary. The Sec- retary thereupon shall file in the court the writ- ten submissions to, and transcript of, the writ- ten or oral proceedings on which the rule or order was based as provided in section 2112 of title 28. (2) Upon the filing of the petition referred to in paragraph (1), the court shall have jurisdic- tion to review the rule, order, or denial in ac- cordance with chapter 7 of title 5, and to grant appropriate relief as provided in such chapter. No rule or order (or denial thereof) may be af- firmed unless supported by substantial evidence. (3) The judgment of the court affirming or set- ting aside, in whole or in part, any such rule, order, or denial shall be final, subject to review by the Supreme Court of the United States upon certiorari or certification as provided in section 1254 of title 28. (4) Subject to the direction and control of the Attorney General, as provided in section 519 of title 28, attorneys appointed by the Secretary may appear for and represent the Secretary in any proceeding instituted under this section in accordance with section 7192(c) of this title. (Pub. L. 95–620, title VII, § 702, Nov. 9, 1978, 92 Stat. 3331.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsecs. (a) and (b), 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. PART B—INFORMATION AND REPORTING § 8421. Information (a) Authority of Secretary For purposes of carrying out his responsibil- ities under this chapter, the Secretary may re- quire, under the authority of this chapter or any other authority administered by him, any per- son owning, operating or controlling any elec- tric powerplant, or any other person otherwise subject to this chapter to submit such informa- tion and reports of any kind or nature directly to the Secretary necessary to implement the provisions of this chapter, and insure compli- ance with the provisions of this chapter, and any rule or order thereunder. The provisions of sec- tion 796(d) of title 15 shall apply with respect to information obtained under this section to the same extent and in the same manner as it ap- plies with respect to energy information ob- tained under section 796 of title 15. (b) Authority of President and Federal Energy Regulatory Commission In the case of responsibilities expressly given by this chapter to the President or the Federal Energy Regulatory Commission, subsection (a) shall be applied as if the references to the Sec- retary were references to the President or the Federal Energy Regulatory Commission, as the case may be. (c) Natural gas usage by electric utilities (1) For purposes of section 8374(b) of this title and other emergency authorities, the Secretary shall obtain data necessary to determine— (A) within 6 months after August 13, 1981, the total quantities of natural gas used as a primary energy source by each electric utility during calendar year 1977, and (B) on a semiannual basis, the total quan- tities of natural gas used as a primary energy source during the previous 6-month period by each electric utility. (2) Repealed. Pub. L. 104–66, title I, § 1051(e), Dec. 21, 1995, 109 Stat. 716. (Pub. L. 95–620, title VII, § 711, Nov. 9, 1978, 92 Stat. 3332; Pub. L. 97–35, title X, § 1021(b), Aug. 13, 1981, 95 Stat. 615; Pub. L. 100–42, § 1(c)(17), May 21, 1987, 101 Stat. 313; Pub. L. 104–66, title I, § 1051(e), Dec. 21, 1995, 109 Stat. 716.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsecs. (a) and (b), 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. AMENDMENTS 1995—Subsec. (c)(2). Pub. L. 104–66 struck out par. (2) which read as follows: ‘‘The Secretary shall include in each annual report to the Congress under section 8482 of this title a summary of information received by the Secretary under this subsection.’’ 1987—Subsec. (a). Pub. L. 100–42 struck out ‘‘or major fuel-burning installation’’ after ‘‘powerplant’’. 1981—Subsec. (c). Pub. L. 97–35 added subsec. (c). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1981 AMENDMENT Amendment by Pub. L. 97–35 effective Aug. 13, 1981, see section 1038 of Pub. L. 97–35, set out as a note under section 6240 of this title. § 8422. Compliance report (a) Generally Any person owning, operating, or proposing to operate one or more existing electric power- plants required to come into compliance with the prohibitions of this chapter shall on or be- fore January 1, 1980, and annually thereafter, submit to the Secretary a report identifying all such existing electric powerplants owned or op- erated by such person. Such report shall— (1) set forth the anticipated schedule for compliance with the applicable requirements