
From the U.S. Code Online via GPO Access
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[Laws in effect as of January 23, 2000]
[Document not affected by Public Laws enacted between
  January 23, 2000 and December 4, 2001]
[CITE: 42USC8322]

 
                 TITLE 42--THE PUBLIC HEALTH AND WELFARE
 
             CHAPTER 92--POWERPLANT AND INDUSTRIAL FUEL USE
 
                      SUBCHAPTER II--NEW FACILITIES
 
                           Part B--Exemptions
 
Sec. 8322. Permanent exemptions


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

    (1) After consideration of a petition (and comments thereon) for an 
exemption for a powerplant from the prohibitions of part A, the 
Secretary shall, 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 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 powerplant, 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 determined by rule by the 
    Secretary, of the fuel that would be used as a primary energy source 
    during the useful life of the powerplant involved;
        (B) one or more site limitations exist which would not permit 
    the location or operation of such powerplant using coal or any other 
    alternate fuel as a primary energy source;
        (C) the prohibitions of part A could not be satisfied without 
    violating applicable environmental requirements; or
        (D) the required use of coal or any other alternate 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 comments thereon) for an 
exemption for a powerplant from 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) with respect to the proposed site of the powerplant, the 
    construction or operation of such a facility using coal or any other 
    alternate 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) of this section; 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 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 with respect to natural gas or 
petroleum, 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) Permanent exemption for certain mixtures containing natural gas or 
        petroleum

    After consideration of a petition (and comments thereon) for an 
exemption for a powerplant from the prohibitions of part A, the 
Secretary shall, 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) 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 efficiency, as determined in 
    accordance with rules prescribed by the Secretary.

(e) Permanent exemption for emergency purposes

    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 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 necessary to maintain 
        reliability of service

    After consideration of a petition (and comments thereon) for an 
exemption for a powerplant 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 subsection (a) or (b) of this section in the time required to 
    prevent such impairment of service.

(Pub. L. 95-620, title II, Sec. 212, Nov. 9, 1978, 92 Stat. 3300; Pub. 
L. 100-42, Sec. 1(c)(6), May 21, 1987, 101 Stat. 312.)


                               Amendments

    1987--Subsec. (a)(1). Pub. L. 100-42, Sec. 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 petroleum'' and struck out ``or installation'' after 
``powerplant'' wherever appearing in subpar. (A), and struck out ``or 
installation'' after ``powerplant'' in subpars. (B) and (D).
    Subsec. (a)(2). Pub. L. 100-42, Sec. 1(c)(1)(D), struck out ``--
        ``(A) in the case of a new major fuel-burning installation, be 
    made with respect to the site of such installation 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, Sec. 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) of this section may not be granted an exemption under 
this subsection.''
    Subsec. (b). Pub. L. 100-42, Sec. 1(c)(6)(A), (B), (F), in 
introductory provisions substituted ``from'' for ``or installation 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, Sec. 1(c)(6)(A), (B), (G), struck out 
``(1)'' before ``After consideration of'', substituted ``from'' for 
``installation from one or more of'' in introductory provisions, 
redesignated subpars. (A) and (B) of former par. (1) as pars. (1) and 
(2), respectively, struck out ``or installation'' after ``powerplant'' 
wherever appearing 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, Sec. 1(c)(6)(B), struck out ``or 
installation'' after ``powerplant'' wherever appearing.
    Subsec. (g). Pub. L. 100-42, Sec. 1(c)(6)(H), struck out subsec. (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, Sec. 1(c)(6)(H), struck out subsec. (h) 
which related to issuance, by order of Secretary of Energy, of permanent 
exemptions for use of petroleum for intermediate load powerplants.
    Subsec. (i). Pub. L. 100-42, Sec. 1(c)(6)(H), struck out subsec. (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, Sec. 1(c)(6)(H), struck out subsec. (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.


  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.

                  Section Referred to in Other Sections

    This section is referred to in sections 8323, 8471 of this title.
