42 U.S.C. § 8351: Temporary exemptions

Summary

Powerplants can get a temporary OK to keep using natural gas or petroleum if they file a petition and the Secretary reviews it and the public’s comments. Exemptions must be granted when the plant proves certain things, like that despite good-faith efforts it cannot get enough suitable coal or other fuel at a cost that is not much higher than using imported oil; or the site has physical limits; or meeting the ban would break environmental rules. Exemptions must also be granted if the plant shows it will switch to a synthetic fuel by the end of the exemption but cannot do so until then, or will adopt a new “innovative” coal technology by the end of the exemption, or will retire before the exemption ends, or will run only as a peakload plant, or if the exemption is needed to prevent loss of reliable service. The Secretary may also grant an exemption if doing so is in the public interest. Some exemptions require the plant to file and keep a compliance plan that meets the rules in section 8354(b). Most temporary exemptions cannot last more than 5 years in total, including extensions. The exemption for lack of alternate fuel (the cost/availability finding) can be up to 10 years. Exemptions based on future synthetic fuels, innovative technologies, or reliability may be extended past 5 years but not beyond 10 years. Exemptions for retirement, peakload use, or reliability that allow natural gas cannot go past December 31, 1994. When counting the 5- or 10-year limits, ignore any time before the ban would first have applied.

Title 42, §8351

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

(a)Temporary exemption due to lack of alternate fuel supply, site limitations, or environmental requirements

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 such an exemption for the use of natural gas or petroleum, if he finds that the petitioner has demonstrated that for the period of the proposed exemption, despite diligent good faith efforts—

(1)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, 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 costs, as determined by rule by the Secretary, of using imported petroleum as a primary energy source;

(2)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

(3)the prohibitions of section 8341 of this title could not be satisfied without violating applicable environmental requirements.

(b)Temporary exemption based upon future use of synthetic fuels

(1)the petitioner will comply with the prohibitions of part A by the end of the proposed exemption by the use of a synthetic fuel derived from coal or another alternate fuel; and

(2)the petitioner is not able to comply with such prohibitions by the use of such synthetic fuel until the end of the proposed exemption.

The effectiveness of an exemption under this subsection is conditioned on the petitioner filing and maintaining a compliance plan meeting the requirements of section 8354(b) of this title.

(c)Temporary exemption based upon use of innovative technologies

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, by order, shall grant an exemption under this subsection for the use of natural gas or petroleum, if he finds that the petitioner has demonstrated that such powerplant will comply with such prohibitions at the expiration of such exemption by the adoption of a technology for the use of coal or another alternate 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 conditioned 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 comments thereon) for an exemption from one or more of the prohibitions of part A for a powerplant, the Secretary shall, 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 such powerplant is to permanently cease operation at or before the expiration of the exemption period. An exemption 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 exemption under this subsection has been granted for such powerplant.

(e)Temporary public interest exemption

After consideration of a petition (and comments thereon) for an exemption for a powerplant 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 interest and is consistent with the purposes of this chapter.

(f)Temporary exemption for peakload powerplants

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 an exemption under this subsection for the use of natural 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

(2)Notwithstanding any other provision of this chapter, an exemption under this part (other than a permanent exemption under section 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 extended 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 powerplant may not extend beyond December 31, 1994.

(4)In computing the 5-year and 10-year limitations 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 petroleum would first apply (if the exemption had not been granted) shall be disregarded.

Notes & Related Subsidiaries

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 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—Subsec. (a). Pub. L. 100–42, § 1(c)(10), (11), struck out “or installation” after “powerplant” in introductory 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” wherever appearing.

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.

§8351 Temporary Exemptions