§ 8322. Permanent exemptions

Legislative history

Reconstructed from this section’s Code source credit and amendment notes, resolved against the local Statutes at Large. Editorial notes are evidence, not the law that made the change.

1. 1978

   Pub. L. 95–620 title II § 212 · 92 Stat. 3289

   Enacted · 42 U.S.C. § 8322

   Pub. L. 95–620, title II, § 212, Nov. 9, 1978, 92 Stat. 3300

   Source evidence

   Code source credit
   Pub. L. 95–620, title II, § 212, Nov. 9, 1978, 92 Stat. 3300

   Enacted provision · exact public law section
   SEC. 212. PERMANENT EXEMPTIONS. (a) 42 USC 8322. Permanent Exemption Due to Lack of Alternate Fuel Supply, Site Limitations, Environmental Requirements, or Adequate Capital.— (1) After consideration of a petition (and comments there-on) for an exemption for a powerplant or installation from one or more of the prohibitions of subtitle 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 installation, 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 using imported petroleum as a primary energy source during the useful life of the powerplant or installation involved; (B) one or more site limitations exist which would not permit the location or operation of such powerplant or installation using coal or any other alternate fuel as a primary energy source; (C) the prohibitions of subtitle 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 or installation. (2) The demonstration required to be made by a petitioner under paragraph (1) shall— (A) m the case of a new major fuel-burning installation, be made with respect to the site of such installation proposed by the petitioner; ana (B) in the case of a new electric powerplant, be made with respect to the site of such powerplant and reasonable alternative sites. (3) Notwithstanding the preceding provisions of this subsection, Limitation. a powerplant which has been granted an exemption under subsection (h) 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 for a powerplant or installation from one or more of the prohibitions of subtitle 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 or installation, 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) in the case of a powerplant, there is no reasonable alternative site for such powerplant which meets the criteria set forth in subsection (a) (1) (A) through (D); and (3) the granting of the exemption would be in the public interest and would be consistent with the purposes of this Act. (c) Permanent Exemption for Cogeneration.— After consideration of a petition (and comments thereon) for an exemption from one or more of the prohibitions of subtitle 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 Gab or Petroleum.— (1) After consideration of a petition (and comments thereon) for an exemption for a powerplant or installation from one or more of the prohibitions of subtitle 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— (A) the powerplant or installation 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 or installation needed to maintain reliability of operation of such powerplant or installation consistent with maintaining a reasonable level of fuel efficiency, as determined in accordance with rules prescribed by the Secretary. (2) Percentage determination. 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. (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 subtitle A for a powerplant or installation, 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 or installation 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 subtitle 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) in the time required to prevent such impairment of service. (g) Permanent Exemption for Peakload Powerplants.— After consideration of a petition (and comments thereon) for an exemption for a powerplant— (1) in the case of a proposed use of petroleum, the Secretary shall, by order, grant a permanent exemption under this subsection with respect to petroleum if the petitioner certifies that such powerplant is to be operated solely as a penkload powerplant; and (2) in the case of a proposed use of natural gas, the Secretary shall, by order, grant a permanent exemption under this subsection with respect to natural gas if— (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; and (B) the petitioner certifies that such powerplant is to be operated solely as a peakload powerplant. (h) 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 subtitle A on the use of petroleum by a powerplant, the Secretary may grant a permanent exemption under this subsection for such use. by order, 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; (B) such powerplant is to be constructed and operated only to replace no more than the equivalent capacity of existing electric powerplants— (i) which use natural gas or petroleum as a primary 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 area; (C) such powerplant is to be operated solely as an intermediate load powerplant; (D) the net heat input rate for such powerplant will be maintained at or less than 9,500 Btu’s per kilowatt hour throughout the useful life of the powemlant; (E) there is no reasonable alternative site for such powerplant which meets the criteria set forth in subsection (a)(1) (A) through (D); and (F) the powerplant is to be constructed with the capability to use a synthetic fuel derived from coal or other alternate fuel. (2) The Secretary shall, from time to time, review each exemption Review. granted to a powerplant under this subsection, and shall terminate such exemption when 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. (i) Permanent Exemptions for Installations Based Upon Product or Process Requirements.— After consideration of a petition (and comments thereon) for an exemption for an installation from one or more of the prohibitions of subtitle 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 use of coal or another alternate fuel is not technically feasible due to the necessity to maintain satisfactory control of product quality; and (2) substitution of steam is not technically feasible due to process requirements. (j) Permanent Exemption for Intallations Necessary To Meet Scheduled Equipment Outages.— After consideration of a petition (and comments thereon) for any exemption from one or more of the prohibitions of subtitle A for an installation, the Secretary may, by order, grant a permanent exemption under this subsection if he finds that the petitioner has demonstrated that such exemption is necessary to meet scheduled equipment outages (as defined by the Secretary by rule).

2. 1987

   Pub. L. 100–42 § 1(c)(6)(A) · 101 Stat. 310

   1. Substituted · 42 U.S.C. § 8322(a)(1)

      Pub. L. 100–42, § 1(c)(6)(A)–(C), substituted “from” for “or installation from one or more of” in introductory provisions

   2. Substituted · 42 U.S.C. § 8322(a)(1)

      Pub. L. 100–42, § 1(c)(6)(A)–(C), substituted “the fuel that would be used” for “using imported petroleum”

   3. Struck · 42 U.S.C. § 8322(a)(1)

      Pub. L. 100–42, § 1(c)(6)(A)–(C), struck out “or installation” after “powerplant” wherever appearing in subpar. (A)

   4. Struck · 42 U.S.C. § 8322(a)(1)

      Pub. L. 100–42, § 1(c)(6)(A)–(C), struck out “or installation” after “powerplant” in subpars. (B) and (D)

   Source evidence

   Code amendment note
   Subsec. (a)(1). Pub. L. 100–42, § 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).

   Enacted provision · exact public law section
   (A) by striking “or installation from one or more of” each place it appears and inserting “from”;

3. 1987

   Pub. L. 100–42 § 1(c)(1)(D) · 101 Stat. 310

   Struck · 42 U.S.C. § 8322(a)(2)

   Pub. L. 100–42, § 1(c)(1)(D), struck out “—

   Source evidence

   Code amendment note
   Subsec. (a)(2). Pub. L. 100–42, § 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”.

   Enacted provision · exact public law section
   (1) Section 102 of the Powerplant and Industrial Fuel Use Act of 1978 (42 U.S.C. 8301) is amended— (A) by striking “and major fuel-burning installations” wherever it appears; and (B) in subsection (b), by striking paragraphs (2) and (6) and redesignating paragraphs (3), (4), (5), (7), (8), (9), (10), (11), and (12) as paragraphs (2), (3), (4), (5), (6), (7), (8), (9), and (10), respectively.

4. 1987

   Pub. L. 100–42 § 1(c)(6)(E) · 101 Stat. 310

   Struck · 42 U.S.C. § 8322(a)(3)

   Pub. L. 100–42, § 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) may not be granted an exemption under this subsection.”

   Source evidence

   Code amendment note
   Subsec. (a)(3). Pub. L. 100–42, § 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) may not be granted an exemption under this subsection.”

   Enacted provision · exact public law section
   (E) by striking subsection (a)(3);

5. 1987

   Pub. L. 100–42 § 1(c)(6)(A) · 101 Stat. 310

   Substituted · 42 U.S.C. § 8322(b)

   Pub. L. 100–42, § 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)”

   Source evidence

   Code amendment note
   Subsec. (b). Pub. L. 100–42, § 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)”.

   Enacted provision · exact public law section
   (A) by striking “or installation from one or more of” each place it appears and inserting “from”;

6. 1987

   Pub. L. 100–42 § 1(c)(6)(A) · 101 Stat. 310

   1. Struck · 42 U.S.C. § 8322(d)

      Pub. L. 100–42, § 1(c)(6)(A), (B), (G), struck out “(1)” before “After consideration of”

   2. Substituted · 42 U.S.C. § 8322(d)

      Pub. L. 100–42, § 1(c)(6)(A), (B), (G), substituted “from” for “installation from one or more of” in introductory provisions

   3. Redesignated · 42 U.S.C. § 8322(d)

      Pub. L. 100–42, § 1(c)(6)(A), (B), (G), redesignated subpars. (A) and (B) of former par. (1) as pars. (1) and (2), respectively

   4. Struck · 42 U.S.C. § 8322(d)

      Pub. L. 100–42, § 1(c)(6)(A), (B), (G), struck out “or installation” after “powerplant” wherever appearing in such pars.

   5. Struck · 42 U.S.C. § 8322(d)

      Pub. L. 100–42, § 1(c)(6)(A), (B), (G), 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.”

   Source evidence

   Code amendment note
   Subsec. (d). Pub. L. 100–42, § 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.”

   Enacted provision · exact public law section
   (A) by striking “or installation from one or more of” each place it appears and inserting “from”;

7. 1987

   Pub. L. 100–42 § 1(c)(6)(B) · 101 Stat. 310

   Struck · 42 U.S.C. § 8322(e)

   Pub. L. 100–42, § 1(c)(6)(B), struck out “or installation” after “powerplant” wherever appearing

   Source evidence

   Code amendment note
   Subsec. (e). Pub. L. 100–42, § 1(c)(6)(B), struck out “or installation” after “powerplant” wherever appearing.

   Enacted provision · exact public law section
   (B) by striking “or installation” each place it appears;

8. 1987

   Pub. L. 100–42 § 1(c)(6)(H) · 101 Stat. 310

   Struck · 42 U.S.C. § 8322(g)

   Pub. L. 100–42, § 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

   Source evidence

   Code amendment note
   Subsec. (g). Pub. L. 100–42, § 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.

   Enacted provision · exact public law section
   (H) by striking subsections (g), (n), (i), and (j).

9. 1987

   Pub. L. 100–42 § 1(c)(6)(H) · 101 Stat. 310

   Struck · 42 U.S.C. § 8322(h)

   Pub. L. 100–42, § 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

   Source evidence

   Code amendment note
   Subsec. (h). Pub. L. 100–42, § 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.

   Enacted provision · exact public law section
   (H) by striking subsections (g), (n), (i), and (j).

10. 1987

    Pub. L. 100–42 § 1(c)(6)(H) · 101 Stat. 310

    Struck · 42 U.S.C. § 8322(i)

    Pub. L. 100–42, § 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

    Source evidence

    Code amendment note
    Subsec. (i). Pub. L. 100–42, § 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.

    Enacted provision · exact public law section
    (H) by striking subsections (g), (n), (i), and (j).

11. 1987

    Pub. L. 100–42 § 1(c)(6)(H) · 101 Stat. 310

    Struck · 42 U.S.C. § 8322(j)

    Pub. L. 100–42, § 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

    Source evidence

    Code amendment note
    Subsec. (j). Pub. L. 100–42, § 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.

    Enacted provision · exact public law section
    (H) by striking subsections (g), (n), (i), and (j).

18 of 18 references resolved to an enrolled provision