§8352 — Title 42 The Public Health and Welfare | U.S. Code

Summary

The Secretary must or may give a permanent exemption that lets a powerplant use natural gas, petroleum, liquefied natural gas, or a mix of fuels when a plant owner petitions and proves certain facts. The Secretary must approve if the owner shows coal or other fuels of the right quality and cost won't be available for the rest of the plant’s life, or if site limits or other environmental rules make using coal impossible. A plant already exempt under the rules for petroleum (subsection (g)) cannot get that particular cost-based exemption. The Secretary may also grant an exemption if state or local rules (like codes or zoning) make coal use infeasible and if the exemption is in the public interest. Other rules let the Secretary grant exemptions in specific cases. He may allow cogeneration plants to use oil or gas if the benefits require it and he must explain why. He must grant an exemption when a plant will run only for emergencies, or when a peakload plant needs oil or gas because denial would harm reliability and conversion is impossible or unreasonably costly. He must grant an exemption for mixed fuels if the oil or gas is only the smallest share needed for reliable, efficient operation (higher shares may be allowed in special cases involving synthetic or waste-derived fuels). Special petroleum exemptions can be allowed if EPA or a state agency certifies that using coal would make air quality standards worse, and other limits apply (the plant must replace only like-capacity oil/gas units owned by the same owner, operate as an intermediate load, keep net fuel use at or below 9,500 Btu per kilowatt-hour, and be able to use synthetic fuels); those exemptions must be reviewed and ended when suitable synthetic fuel becomes available. A natural gas exemption must be granted if the plant can burn less than 250 million Btu per hour, was a baseload plant on April 20, 1977, and cannot use coal without major changes or a big cut in capacity; that exemption only covers certain earlier prohibitions and rules in effect before January 1, 1990.

Title 42, §8352

The Public Health and Welfare — Source: USLM XML via OLRC

(a)(1)After consideration of a petition (and comments thereon) for an exemption from one or more of the prohibitions of part A for a powerplant, the Secretary shall, by order, grant a permanent 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 associated 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 powerplant 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 environmental 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 subsection.

(b)After consideration of a petition (and comments thereon) for an exemption from one or more of the prohibitions of part A for a powerplant, the Secretary may, by order, grant a permanent exemption under this subsection, if he finds that the petitioner has demonstrated that—

(1)with respect to the site of the powerplant, 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)After consideration of a petition (and comments thereon) for an exemption from one or more of the prohibitions of part A for a cogeneration facility, the Secretary may, by order, grant a permanent exemption under this subsection, if he—

(1)finds that the petitioner has demonstrated that economic and other benefits of cogeneration are unobtainable unless petroleum 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)(1)After consideration of a petition (and comments thereon) for an exemption from one or more of the prohibitions of part A for a powerplant, the Secretary shall, by order, grant a permanent 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 maintaining a reasonable level of fuel efficiency, as determined in accordance with rules prescribed 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 percentage 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)After consideration of a petition (and comments thereon) for an exemption from one or more of the prohibitions of part A for a powerplant, the Secretary shall, by order, grant a permanent exemption under this subsection, 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)After consideration of a petition (and comments thereon) for an exemption from one or more of the prohibitions of part A for a powerplant, the Secretary shall, by order, grant a permanent 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 result in an impairment of reliability of service; and

(3)(A)modification of the powerplant to permit compliance with such prohibitions is technically infeasible; or

(B)such modification would result in an unreasonable expense.

(g)(1)After consideration of a petition (and comments 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 primary energy source will cause or contribute to a concentration, 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 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,

(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 powerplant will be maintained at or less than 9,500 Btu’s per kilowatt hour throughout the remaining useful life of the powerplant; and

(E)the powerplant has the capability to use synthetic fuels derived from coal or other alternate fuel.

(2)The Secretary shall, from time to time, review 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 primary energy source by such powerplant.

(h)(1)Subject to paragraph (2), after consideration 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 Secretary shall, by order, grant a permanent exemption 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 powerplant on April 20, 1977; and

(C)such powerplant is not capable of consuming coal without—

(i)substantial physical modification of the unit; or

(ii)substantial reduction in the rated capacity of the unit (as determined by the Secretary).

(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)After consideration of a petition (and comments thereon) for an exemption from one or more of the prohibitions of part A for a powerplant, the Secretary shall, by order, grant a permanent 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 concentration, 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.

Notes & Related Subsidiaries

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 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.

Amendments

1987—Subsecs. (a)(1), (b), (d)(1). Pub. L. 100–42, § 1(c)(10), struck out “or installation” after “powerplant” 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 existing major fuel-burning installation, the percentage determined 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 powerplant, the”. Subsec. (e). Pub. L. 100–42, § 1(c)(10), struck out “or installation” after “powerplant” wherever appearing. Subsec. (j). Pub. L. 100–42, § 1(c)(12)(C), struck out subsec. (j) which related to granting, by Secretary of Energy, 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 subsec. (l) which related to granting, by 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, 1978For 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