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its demonstration in accordance with published in the FEDERAL REGISTER. paragraph (b)(5) of this section.

The order will become effective 60 days (8) Upon request by the recipient of after publication in the FEDERAL REGthe proposed prohibition order, the ISTER. combined public comment periods pro- (d) Request for order. (1) A proceeding vided for in this section may be re

for issuance of a prohibition order to a duced to a minimum of forty-five (45)

specific unit may be commenced by days from the time of publication of

OFE, in its sole discretion, in response the proposed order.

to a request for an order filed by the (9) OFE may terminate a prohibition

owner or operator of a facility. order proceeding at any time prior to the date upon which a final order shall

(2) A petition requesting OFE to combecome effective. Should OFE termi

mence a prohibition order proceeding nate the proceeding, it will notify the

should include the following informaproposed order recipient, and publish a

tion for all units to be covered by the notice in the FEDERAL REGISTER.

prohibition order: (C) Decision to issue a final order. (1) (i) A statement of the reasons the OFE will base its determination to owner operator is seeking the issue an order on consideration of the issuance of a prohibition order; and whole record or those parts thereof (ii) Sufficient information for OFE to cited by a party and supported by and make the findings required by section in accordance with reliable, probative 301(b) of FUA. and substantial evidence.

(3) If OFE determines to accept the (2) OFE shall include in the final request, OFE shall publish a proposed order a written statement of the perti

order in the FEDERAL REGISTER tonent facts, a statement of the basis

gether with a statement of the reasons upon which the final order is issued, a

for the order. recitation of the conclusions regarding the required findings and qualifications (Department of Energy Organization Act, for exemptions. The final order shall Pub. L. 95-91, 91 Stat. 565 (42 U.S.C. 7101 et state the effective date of the prohibi

seq.); Energy Supply and Environmental Cotion contained therein. If it is dem

ordination Act of 1974; Pub. L. 93-319, as onstrated that the facility would have

amended by Pub. L. 94–163, Pub. L. 95–70, (15

U.S.C. 719 et seq.); Powerplant and Industrial been granted a temporary exemption,

Fuel Use Act of 1978, Pub. L. 95-620, 92 Stat. the effective date of the prohibition

3269 (42 U.S.C. 8301 et seq.); Omnibus Budget contained in the final order shall be de

Reconciliation Act of 1981, (Pub. L. 97–35); layed until such time as the temporary

E.O. 12009, 42 FR 46267, Sept. 15, 1977) exemption would have terminated. If it is demonstrated that a facility will

(46 FR 59889, Dec. 7, 1981, as amended at 47 need a period of time to comply with

FR 17042, Apr. 21, 1982; 47 FR 50848, Nov. 10, the final order, the effective date of the

1982; 54 FR 52892, Dec. 22, 1989] prohibition contained in the final order

$ 501.52 Prohibitions by order-certimay be delayed, in OFE's discretion, so

fying powerplants. as to allow an order recipient to comply with the final order.

(a) OFE may prohibit by order the (3) OFE will enclose with a copy of use of petroleum or natural gas as a the final order, where appropriate, a primary energy source or in amounts schedule of steps that should be taken in excess of the minimum amount necby a stated date (a compliance sched- essary to maintain reliability of operule) to ensure that the affected facility ation consistent with maintaining reawill be able to comply with the prohibi- sonable fuel efficiency in an existing tions stated in the order by the effec- powerplant if the owner or operator of tive date of the prohibition contained the powerplant certifies, and OFE conin the final order. The compliance curs in such certification in accordance schedule may require the affected per

with the requirements of 88 504.5, 504.6 son to take steps with regard to a unit

and 504.8. 60 days after service of the final order.

(b) Notice of order and participation. (1) (4) A copy of the final order and a

OFE may hold a conference with the summary of the basis therefore will be

197-031

D-01-2

proposed order recipient, at the recipient's election, prior to issuing the proposed order. The conference may resolve any questions regarding the certification required by section 301 of the Act, as amended, and 88 504.5, 504.6, and 504.8, and OFE's review and concurrence therein.

(2) Pursuant to section 701(b) of FUA, prior to the issuance of a final order to a certifying powerplant owner or operator, OFE must publish in the FEDERAL REGISTER, a proposed prohibition order stating the reasons for such order. OFE will review all of the information submitted by a proposed order recipient within 60 days after receipt by OFE. If the certification is complete, OFE will, within 30 days after the end of the 60 day review period, publish in the FEDERAL REGISTER a Notice of Acceptance of certification together with a proposed prohibition order stating therein the reasons for such order. This commences the prohibition order proceeding. If OFE does not believe it is able to concur in the certification, OFE shall notify the proposed order recipient and shall publish a Notice of Proposed Non-Concurrence in the FEDERAL REGISTER within 30 days after the end of the 60 day review period. If OFE finds that the certification with compliance schedule is incomplete, OFE will notify the proposed prohibition order recipient as to the deficiencies, and provide an additional period of 30 days for the certification to be amended and resubmitted. If a complete certification is not submitted within this period, the proceeding shall be terminated in accordance with $ 501.52(b)(5). OFE will notify the proposed order recipient and other parties to the proceeding of the termination and publish a notice in the FEDERAL REGISTER. OFE, on its own motion, may extend any period of time by publishing a notice to that effect in the FEDERAL REGISTER.

(3) The publication of the Notice of Acceptance or Notice of Proposed NonConcurrence commences a period of 45 days during which interested persons may submit written comments or request a public hearing. During this period, the recipient of the proposed order and any other interested person may submit any evidence that they

have available relating to the proposed order, the certification or the concurrence that OFE must make. A proposed order recipient may submit additional new evidence at any time prior to the close of the public comment period which follows the commencement of the proceeding or prior to the close of the record of any public hearing, whichever occurs later. A request for an extension of the 45 day period may be granted at OFE's discretion. In the case of a Notice of Acceptance, as set forth in $504.9, no final prohibition order can be issued until any necessary environmental review pursuant to the National Environmental Policy Act of 1969, 42 U.S.C 4321 et seq. (NEPA) has been completed. Upon completion of the NEPA review and unless OFE determines on the basis of the record of the proceeding that the certification fails to meet the requirements of $8 504.5, 504.6, and 504.8, OFE shall publish a final prohibition order, together with the information required by paragraph (c) of this section. In the case of a Notice of Proposed Non-Concurrence, at the end of the 45 day comment period, OFE will notify the proposed order recipient and parties to the proceeding and publish a final Notice of Non-Concurrence in the FEDERAL REGISTER, if OFE determines it cannot concur in the certification based upon additional information submitted during the proceeding. If, at the end of the 45 day period, OFE believes it can concur in the certification, OFE will notify the proposed order recipient and parties to the proceeding and publish a Notice of Acceptance followed by a new 45 day comment period.

(4) If a hearing has been requested, OFE shall provide interested persons with an opportunity to present oral data, views and arguments at a public hearing held in accordance with subpart C of this part. The hearing may consider, among other matters, the suf

cie of the certification of the owner or operator of the powerplant required by section 301 of FUA, as amended, and 88 504.5, 504.6, and 504.8 of these regulations.

(5) OFE may terminate a prohibition order proceeding at any time prior to the date upon which final prohibition order is issued whenever OFE believes,

from any information contained in the prior to the effective date of the prohirecord of the proceeding, that the cer- bitions contained in the final prohibitification does not meet the require- tion order. ments of section 301 of the Act, as (e) Rescission of prohibition orders. The amended, or $8504.5, 504.6, and 504.8 of rescission or modification of final prothese regulations. If OFE terminates hibition orders issued to existing electhe proceeding or publishes a final No- tric powerplants will be governed by tice of Non-Concurrence, or the pro- the procedure in $ 501.101 of these reguposed order recipient fails to submit a lations. complete certification, OFE will notify

(Approved by the Office of Management and the proposed order recipient and other

Budget under control number 1903-0077) parties to the proceeding and publish a notice in the FEDERAL REGISTER. In

(Department of Energy Organization Act,

Pub. L. 95-91, 42 U.S.C. 7101 et seq.; Energy such event, the proposed order recipi

Supply and Environmental Coordination Act ent may submit a new certification

of 1974, Pub. L. 93–319, as amended by Pub. L. under any provision of section 301 of

94–163, Pub. L. 95-70, and Pub. L. 95620, 15 the Act, as amended, at a later date. U.S.C. 719 et seq.; Powerplant and Industrial Specifically, a Notice of Non-Concur- Fuel Use Act of 1978, Pub. L. 95-620, as rence under either section 301(b) or amended by Pub. L. 97-35, 42 U.S.C. 8301 et 301(c) shall not affect a proposed order

seq.; Omnibus Budget Reconciliation Act of recipient's ability to make a certifi

1981, (Pub. L. 97–35)) cation under the other subsection.

[47 FR 17042, Apr. 21, 1982] (c) Record and decision to issue a final order. (1) OFE will base its determina

88 501.53–501.56 (Reserved) tion to issue an order on consideration of the whole record or those parts

Subpart F-Exemptions and thereof cited by a party and supported

Certifications by and in accordance with reliable, probative and substantial evidence.

$ 501.60 Purpose and scope. (2) OFE shall include in the final (a) (1) If the owner or operator plans order a written statement of the basis to construct a new baseload powerplant upon which the final order is issued, and the unit will not be in compliance and its concurrence in the required cer- with the prohibition contained in sectification. A copy of the final order and tion 201(a) of FUA, this subpart estaba summary of the basis therefor will be lishes the procedures for filing a petipublished in the FEDERAL REGISTER. tion requesting a temporary or permaWhile the prohibition order is final for nent exemption under, respectively, purposes of judicial review under sec- sections 211 and 212 of FUA. tion 702 of FUA, the prohibitions con- (2) Self-certification alternative. If tained in the final order shall not be- the owner or operator plans to concome effective for purposes of amend- struct a new baseload powerplant not ment under section 301(d) of FUA, as in compliance with the prohibitions amended, and $ 501.52(d) of these regula- contained in section 201(a) of FUA, this tions until the effective date of the subpart establishes the procedures for prohibitions stated in the order, or, the filing of a self-certification under where the order is subject to one or section 201(d) of FUA. more conditions subsequent listed in (3) If the petitioner owns, operates or the prohibition order compliance controls a new powerplant, this subschedule, until all its conditions are part provides the procedures for filing met.

a petition requesting extension of a (d) Amendment to certifications under temporary exemption granted under 68 504.5 and 504.6. The proposed prohibi- sections 211 or 311 of FUA. tion order recipient may amend its (4) If the petitioner owns, operates or compliance schedule under $504.5(d), or controls a new or existing powerplant its certification under section 301 of or MFBI, this subpart provides the proFUA, as amended, and 88 504.5, 504.6 and cedures for filing a petition requesting 504.8 of these regulations in order to extension of a temporary exemption take into account changes in relevant granted under section 211 or section 311 facts and circumstances at any time of FUA.

not serve to commence a public comment period.

(d) OFE will notify the owner or operator within 60 days if supporting documentation is needed to verify the certification. (54 FR 52892, Dec. 22, 1989)

(b) If the petition is for an extension of a temporary exemption, the petitioner must apply for this extension at least (90) days prior to the expiration of the temporary exemption. (Department of Energy Organization Act, Pub. L. 95–91, 91 Stat. 565 (42 U.S.C. 7101 et seq.); Powerplant and Industrial Fuel Use Act of 1978, Pub. L. 95-620, 92 Stat. 3269 (42 U.S.C. 8301 et seq.); Omnibus Budget Reconciliation Act of 1981, Pub. L. 97-35; E.O. 12009, 42 FR 46267, Sept. 15, 1977) [46 FR 59889, Dec. 7, 1981, as amended at 47 FR 50849, Nov. 10, 1982; 54 FR 52892, Dec. 22, 1989)

$ 501.61 Certification contents.

(a) A self-certification filed under section 201(d) of FUA should include the following information:

(1) Owner's name and address.
(2) Operator's name and address.
(3) Plant location and address.

(4) Plant configuration (combined cycle, simple cycle, topping cycle, etc.)

(5) Design capacity in megawatts (MW).

(6) Fuel(s) to be used by the new facility.

(7) Name of utility purchasing electricity from the proposed facility and percent of total output to be sold.

(8) Date unit is expected to be placed in service.

(9) Certification by an officer of the company or his designated representative certifying that the proposed facility:

(i) Has sufficient inherent design characteristics to permit the addition of equipment (including all necessary pollution devices) necessary to render such electric powerplant capable of using coal or another alternate fuel as its primary energy source; and

(ii) Is not physically, structurally, or technologically precluded from using coal or another alternate fuel as its primary energy source.

(b) A self-certification filed pursuant to $501.61(a) shall be effective to establish compliance with the requirement of section 201(a) of FUA as of the date filed.

(c) OFE will publish a notice in the FEDERAL REGISTER within fifteen days reciting that the certification has been filed. Publication of this notice does

$ 501.62 Petition contents.

(a) A petition for exemption should include the following information:

(1) The name of the petitioner;

(2) The name and location of the unit for which an exemption is being requested;

(3) The specific exemption(s) being requested; and

(4) The name, address, and telephone number of the person who can supply further information.

(b) Table of contents. Include only those sections contained in the petition.

(C) Introduction. Include the following:

(1) Description of the facility under consideration;

(2) Description of the unit and fuel the petitioner proposes to burn in that unit, including the purpose of and need for the unit; and

(3) Description of the operational requirements for the unit, including size (capacity, input and output in millions of Btu's per hour), output in terms of product or service to be supplied, fuel capability, and operating mode, including capacity factor, utilization factor, and fluctuations in the load.

(d) General requirements. The evidence required under part 503 subpart B for each exemption(s) for which the petitioner is applying:

(1) No alternate power supply (8 503.8): (2) Use of mixtures ($503.9); (3) Alternative site (8 503.11); (4) Compliance Plan (8 503.12);

(5) Environmental impact analysis (8 503.13);

(6) Fuels search (8 503.14).

(e) Specific evidence. Evidence quired for each exemption, segregated by exemption (part 503 subparts C and D).

(f) References. (1) Specify the reports, documents, experts, and other sources consulted in compiling the petition. Cite these sources in accordance with acceptable documentation standards,

re

ex

and indicate the part of the petition to 8501.63 Notice of the commencement which they apply. If the source is un- of an administrative proceeding on usual or little known, briefly describe an exemption petition. its contents.

(a)(1) When a petition is accepted, (2) Identify at the end of each section

OFE will publish in the FEDERAL REGof the petition any information or any

ISTER a Notice of Acceptance, or, in the statement based, in whole or in part,

case of a certification exemption, a Noon information or principles which, to tice of Acceptance and Availability of petitioner's knowledge, represent sig- Certification, signifying that an nificant innovations to or departures emption proceeding has commenced. from generally accepted facts or prin- The notice will include a summary of ciples.

the exemption petition, and publica(g) Appendices. Include in the appen- tion will commence a public comment dices material which the petitioner be- period of no less than forty-five (45) lieves substantiates any analyses fun- days during which interested parties damental to the petition, materials may file written comments concerning prepared in connection with it, and any

the petition. In the case of a certifiother documents, studies, or analyses cation exemption, interested persons which are believed to be relevant to the

may request a public hearing during decision to be made. Also, include in this period, pursuant to $ 501.33. the appendices copies of any forms sub- (2) OFE will notify the appropriate mitted as part of the petition.

State agency having apparent primary (h) List of preparers. List the names authority to permit or regulate the with the qualifications and profes- construction or operation of a powersional credentials of the principal con- plant that an exemption proceeding tributors to the preparation of the pe- has commenced and will consult with tition. Indicate the sections or subject this agency to the maximum extent matters for which each principal con- practicable. Copies of all accepted petitributor was responsible.

tions also will be forwarded to EPA, as (i) Incorporation by reference. Perti- provided in $ 501.14(a). nent information may be incorporated (b) In processing an exemption petiinto the petition by reference when tion, OFE shall comply with the rethis can be done without impeding quirements of the National Environagency and public review. Referenced mental Policy Act of 1969 (NEPA), the materials must be specifically identi- Council on Environmental Quality's fied and their contents briefly de- implementing regulations, and the scribed in the petition. To incorporate DOE guidelines implementing those by reference, the material must be sub

regulations (45 FR 20694, Mar. 28, 1980). mitted with the petition, or if pre- Compliance with NEPA may involve viously submitted, the office to which

the preparation of (1) an environmental it was submitted must be identified in

impact statement (EIS) evaluating the the petition. The petitioner cannot in- grant or denial of an exemption peticorporate by reference material based

tion, (2) an environmental assessment on proprietary data not available to (EA), or (3) a memorandum to the file OFE for review.

finding that the grant of the requested (Department of Energy Organization Act,

petition would not be considered a Pub. L. 95-91, 91 Stat. 565 (42 U.S.C. 7101 et

major federal action significantly afseq.); Powerplant and Industrial Fuel Use fecting the quality of the human enviAct of 1978, Pub. L. 95 620, 92 Stat. 3269 (42 ronment. If an EIS is required, OFE U.S.C. 8301 et seq.); Omnibus Budget Rec- will publish in the FEDERAL REGISTER a onciliation Act of 1981, Pub. L. 97-35; E.O. Notice of Intent (NOI) to prepare an 12009, 42 FR 46267, Sept. 15, 1977)

EIS as soon as practicable after com[46 FR 59889, Dec. 7, 1981, as amended at 47 mencement of the proceeding. A public FR 50849, Nov. 10, 1982)

meeting may be held pursuant to 40

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