
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: 42USC8352]

 
                 TITLE 42--THE PUBLIC HEALTH AND WELFARE
 
             CHAPTER 92--POWERPLANT AND INDUSTRIAL FUEL USE
 
                   SUBCHAPTER III--EXISTING FACILITIES
 
                           Part B--Exemptions
 
Sec. 8352. Permanent exemptions


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

    (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) of 
this section may not be granted an exemption under this subsection.

(b) Permanent exemption due to certain State or local 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 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) 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, 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 fuel mixtures containing natural gas 
        or petroleum

    (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, Sec. 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) 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, 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 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 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) Permanent exemption for intermediate load powerplants

    (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) Permanent exemption for use of natural gas by certain powerplants 
        with capacities of less than 250 million Btu's per hour

    (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) Permanent exemption for use of LNG by certain 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 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.

(Pub. L. 95-620, title III, Sec. 312, Nov. 9, 1978, 92 Stat. 3309; Pub. 
L. 100-42, Sec. 1(c)(10), (12), May 21, 1987, 101 Stat. 313.)


                               Amendments

    1987--Subsecs. (a)(1), (b), (d)(1). Pub. L. 100-42, Sec. 1(c)(10), 
struck out ``or installation'' after ``powerplant'' wherever appearing.
    Subsec. (d)(2). Pub. L. 100-42, Sec. 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, Sec. 1(c)(12)(B), substituted 
``The'' for ``In the case of an existing electric powerplant, the''.
    Subsec. (e). Pub. L. 100-42, Sec. 1(c)(10), struck out ``or 
installation'' after ``powerplant'' wherever appearing.
    Subsec. (j). Pub. L. 100-42, Sec. 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, Sec. 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, Sec. 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.


  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 8351, 8353, 8471, 8473 of 
this title.
