
From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 23, 2000]
[Document not affected by Public Laws enacted between
  January 23, 2000 and December 4, 2001]
[CITE: 42USC8411]

 
                 TITLE 42--THE PUBLIC HEALTH AND WELFARE
 
             CHAPTER 92--POWERPLANT AND INDUSTRIAL FUEL USE
 
             SUBCHAPTER VII--ADMINISTRATION AND ENFORCEMENT
 
                           Part A--Procedures
 
Sec. 8411. Administrative procedures


(a) General rulemaking

    Except to the extent otherwise provided in this section or other 
provisions of this chapter, rules prescribed under this chapter shall be 
made in accordance with the procedures set forth in section 553 of title 
5.

(b) Notices of rules and orders imposing prohibitions

    Before the Secretary prescribes any rule or issues any order 
imposing a prohibition under this chapter, he shall publish such 
proposed rule or order in the Federal Register, together with a 
statement of the reasons for such rule or order and, in the case of a 
rule, a detailed statement of any special circumstances or 
characteristics required to be taken into account in prescribing such 
rule. A copy shall be transmitted to the person who operates any such 
powerplant required to be specifically identified in such rule or order.

(c) Petitions for exemptions

    (1) Any petition for an exemption from any prohibition under this 
chapter shall be filed at such time and shall be in such form as the 
Secretary shall by rule prescribe. The Secretary, upon receipt of such 
petition, shall publish a notice thereof in the Federal Register 
together with a statement of the reasons set forth in such a petition 
for requesting such exemption, and provide a period of public comment of 
at least 45 days for written comments thereon. Rules required under this 
paragraph shall be prescribed not later than 120 days after November 9, 
1978.
    (2) The Secretary, upon receipt of such petition, shall notify the 
appropriate State agencies having primary authority to permit or 
regulate the construction or operation of the electric powerplant which 
is the subject of such petition, and, to the maximum extent practicable, 
consult with such agencies.
    (3) The Secretary, within 6 months after the period for public 
comment and hearing applicable to any petition for an exemption, shall 
issue a final order granting or denying the petition for such exemption, 
except that the Secretary may extend such period to a specified date if 
he publishes notice thereof in the Federal Register and includes with 
such notice a statement of the reasons for such extension.

(d) Public comment on prohibitions and exemptions

    (1) In the case of any proposed rule or order by the Secretary 
imposing a prohibition or any petition for any order granting an 
exemption under this chapter, any interested person shall be afforded an 
opportunity to present oral data, views, and arguments at a public 
hearing. At such hearing any interested person shall have an opportunity 
to question--
        (A) other interested persons who make oral presentations,
        (B) employees and contractors of the United States who have made 
    written or oral presentations or who have participated in the 
    development of the proposed rule or order or in the consideration of 
    such petition, and
        (C) experts and consultants who have provided information to any 
    person who makes an oral presentation and which is contained in or 
    referred to in such presentation,

with respect to disputed issues of material fact, except that the 
Secretary may restrict questioning if he determines that such 
questioning is duplicative or is not likely to result in a timely and 
effective resolution of such issues. Any oral or documentary evidence 
may be received, but the Secretary as a matter of policy shall provide 
for the exclusion of irrelevant, immaterial, or unduly repetitious 
evidence.
    (2) A rule or order subject to this section may not be issued except 
on consideration of the whole record or those parts thereof cited by a 
party and supported by and in accordance with the reliable, probative, 
and substantial evidence.

(e) Transcript

    A transcript shall be kept of any public hearing made in accordance 
with this section.

(f) Environmental Protection Agency comment

    A copy of any proposed rule or order to be prescribed or issued by 
the Secretary which imposes a prohibition under this chapter (other than 
under section 8374 of this title), or a petition for an exemption (or 
permit) under this chapter (other than under section 8374 of this 
title), shall be transmitted by the Secretary to the Administrator of 
the Environmental Protection Agency and the Secretary shall request such 
agency to comment thereon within the period provided to the public 
unless a longer period is provided under the Clean Air Act [42 U.S.C. 
7401 et seq.]. In any such case, the Administrator of the Environmental 
Protection Agency shall be afforded the same opportunity to comment and 
question as is provided other interested persons under subsection (d) of 
this section.

(g) Repealed. Pub. L. 100-42, Sec. 1(c)(16)(E), May 21, 1987, 101 Stat. 
        313

(h) Coordination with other provisions of law

    (1) Except as provided in sections 8412(c)(4), 8433(d)(5), and 8434 
of this title, title V of the Department of Energy Organization Act (42 
U.S.C. 7191, et seq.) shall not apply with respect to this chapter.
    (2) The preceding provisions of this section shall not apply with 
respect to any exercise of authority under section 8374 of this title.
    (3) The procedures applicable under this chapter shall not--
        (A) be considered to be modified or affected by any other 
    provision of law unless such other provision specifically amends 
    this chapter (or provisions of law cited herein), or
        (B) be considered to be superseded by any other provision of law 
    unless such other provision does so in specific terms, referring to 
    this chapter, and declaring that such provision supersedes, in whole 
    or in part, the procedures of this chapter.

(Pub. L. 95-620, title VII, Sec. 701, Nov. 9, 1978, 92 Stat. 3329; Pub. 
L. 100-42, Sec. 1(c)(16), May 21, 1987, 101 Stat. 313.)

                       References in Text

    The Clean Air Act, referred to in subsec. (f), is act July 14, 1955, 
ch. 360, 69 Stat. 322, as amended, which is classified generally to 
chapter 85 (Sec. 7401 et seq.) of this title. For complete 
classification of this Act to the Code, see Short Title note set out 
under section 7401 of this title and Tables.
    The Department of Energy Organization Act, referred to in subsec. 
(h)(1), is Pub. L. 95-91, Aug. 4, 1977, 91 Stat. 567, as amended. Title 
V of the Department of Energy Organization Act is classified generally 
to subchapter V (Sec. 7191 et seq.) of chapter 84 of this title. For 
complete classification of this Act to the Code, see Short Title note 
set out under section 7101 of this title and Tables.


                               Amendments

    1987--Subsec. (b). Pub. L. 100-42, Sec. 1(c)(16)(A), struck out 
``(other than under section 8372 of this title)'' after ``this chapter'' 
and ``or installation'' after ``powerplant''.
    Subsec. (c)(1). Pub. L. 100-42, Sec. 1(c)(16)(B)(i), (ii), struck 
out ``or for any permit under section 8375 of this title'' after ``this 
chapter'' and ``or permit'' after ``such exemption''.
    Subsec. (c)(2). Pub. L. 100-42, Sec. 1(c)(16)(B)(iii), struck out 
``or, where appropriate, major fuel-burning installation'' after 
``powerplant''.
    Subsec. (c)(3). Pub. L. 100-42, Sec. 1(c)(16)(B)(i), struck out ``or 
permit'' after ``exemption'' in two places.
    Subsec. (c)(4). Pub. L. 100-42, Sec. 1(c)(16)(B)(iv), struck out 
par. (4) which read as follows: ``Any order for the approval of a system 
compliance plan under section 8391 of this title, and any petition for 
such an order, shall be treated for purposes of this subchapter the same 
as an order (or petition) for an exemption.''
    Subsec. (d)(1). Pub. L. 100-42, Sec. 1(c)(16)(C), struck out ``(or 
permit)'' after ``an exemption'' and ``(other than under section 8372 of 
this title)'' after ``under this chapter''.
    Subsec. (f). Pub. L. 100-42, Sec. 1(c)(16)(D), struck out ``8372 
or'' after ``(other than under section'' in two places.
    Subsec. (g). Pub. L. 100-42, Sec. 1(c)(16)(E), struck out subsec. 
(g) which read as follows: ``A copy of any proposed rule or order to be 
prescribed or issued by the Secretary which imposes a prohibition under 
this chapter (other than under section 8372 or 8374 of this title) with 
respect to a major fuel-burning installation or a boiler subject to 
section 8371 of this title or a petition by such installation or boiler 
for an exemption (or permit) under this chapter (other than under 
section 8372 or 8374 of this title), shall be transmitted by the 
Secretary to the Federal Trade Commission and the Secretary shall 
request such Commission to comment thereon within the period provided to 
the public. In any such case, the Federal Trade Commission shall be 
afforded the same opportunity to comment and question as is provided 
other interested persons under subsection (d) of this section.''

                  Section Referred to in Other Sections

    This section is referred to in section 8343 of this title.
