42 U.S.C. § 8323 — General requirements for exemptions

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 Page 7592 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 8324 1 So in original. Probably should be ‘‘for’’. grant a permanent exemption for a powerplant 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 another alternate fuel, for which an exemption under section 8322(d) 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 another alternate fuel is economically and technically feasible. (b) State approval required for powerplant If the appropriate State regulatory authority has not approved a powerplant for which a peti- tion has been filed, such exemption, to the ex- tent it applies to the prohibition under section 8311 of this title against construction without the capability of using coal or another alternate fuel, shall not take effect until all approvals re- quired by such State regulatory authority which relate to construction have been obtained. (c) No alternative power supply in the case of a powerplant (1) Except in the case of an exemption under section 8322(c) of this title, the Secretary may not grant an exemption for a new powerplant unless he finds that the petitioner has dem- onstrated that there is no alternative supply of electric power which is available within a rea- sonable distance at a reasonable cost without impairing short-run or long-run reliability of service and which can be obtained by the peti- tioner, despite reasonable good faith efforts. (2) The Secretary shall forward a copy of any such petition to the Federal Energy Regulatory Commission promptly after it is filed with the Secretary and shall consult with such Commis- sion before making any finding on such petition under paragraph (1). (Pub. L. 95–620, title II, § 213, Nov. 9, 1978, 92 Stat. 3304; Pub. L. 100–42, § 1(c)(7), May 21, 1987, 101 Stat. 312.) Editorial Notes AMENDMENTS 1987—Subsec. (a). Pub. L. 100–42, § 1(c)(7)(A), (B), in in- troductory provisions struck out ‘‘or (g)’’ after ‘‘8322(d)’’ and ‘‘or installation’’ after ‘‘powerplant’’. Subsec. (b). Pub. L. 100–42, § 1(c)(7)(C), amended sub- sec. (b) generally. Prior to amendment, subsec. (b) read as follows: ‘‘If the appropriate State regulatory author- ity has not approved a powerplant for which a petition has been filed, such exemption— ‘‘(1) to the extent it applies to the prohibition under section 8311(2) of this title against construction without the capability of using coal or another alter- nate fuel, shall not take effect until all approvals re- quired by such State regulatory authority which re- late to construction have been obtained; and ‘‘(2) to the extent it applies to the prohibition under section 8311(1) of this title against the use of natural gas or petroleum as a primary energy source, shall not take effect until all approvals required by such State regulatory authority which relate to con- struction or operation have been obtained.’’ Subsec. (c)(1). Pub. L. 100–42, § 1(c)(7)(A), in introduc- tory provisions struck out ‘‘or (g)’’ after ‘‘section 8322(c)’’. 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. § 8324. Terms and conditions; compliance plans (a) Terms and conditions generally Any exemption from any prohibition under this part shall be on such terms and conditions as the Secretary determines appropriate, includ- ing terms and conditions requiring the use of ef- fective fuel conservation measures which are practicable and consistent with the purposes of this chapter. In the case of any temporary ex- emption, the terms and conditions (which may include a compliance plan meeting the require- ments of subsection (b)) shall be designed to in- sure that upon the expiration of such exemption, the persons and powerplant covered by such ex- emption will comply with the applicable prohi- bitions. (b) Compliance plans A compliance plan meets the requirements of this subsection if it is approved by the Secretary and— (1) contains (A) a schedule indicating how compliance with applicable prohibitions of this chapter will occur and (B) evidence of binding contracts for fuel, or facilities for the production of fuel, which would allow or 1 such compliance; and (2) is revised at such times and to such ex- tent as the Secretary may require to reflect changes in circumstances. (Pub. L. 95–620, title II, § 214, Nov. 9, 1978, 92 Stat. 3304; Pub. L. 100–42, § 1(c)(8), May 21, 1987, 101 Stat. 312.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsecs. (a) and (b)(1)(A), 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 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). Pub. L. 100–42 struck out ‘‘or instal- lation’’ after ‘‘powerplant’’. 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.