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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
(2) A petition requesting OFE to comthe date upon which a final order shall
mence a prohibition order proceeding become effective. Should OFE terminate the proceeding, it will notify the
should include the following informa
tion for all units to be covered by the proposed order recipient, and publish a 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 or 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-certi. may 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 $8 504.5, 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
ORE summary of the basis therefore will be
proposed order recipient, at the recipi- have available relating to the proposed ent's election, prior to issuing the pro- order, the certification or the concurposed order. The conference may re- rence that OFE must make. A proposed solve any questions regarding the cer order recipient may submit additional tification required by section 301 of the new evidence at any time prior to the Act, as amended, and $8504.5, 504.6, and close of the public comment period 504.8, and OFE's review and concur- which follows the commencement of rence therein.
the proceeding or prior to the close of (2) Pursuant to section 701(b) of FUA, the record of any public hearing, prior to the issuance of a final order to whichever occurs later. A request for a certifying powerplant owner or oper an extension of the 45 day period may ator, OFE must publish in the FEDERAL be granted at OFE's discretion. In the REGISTER, a proposed prohibition order case of a Notice of Acceptance, as set stating the reasons for such order. OFE forth in 8504.9, no final prohibition will review all of the information sub- order can be issued until any necessary mitted by a proposed order recipient environmental review pursuant to the within 60 days after receipt by OFE. If National Environmental Policy Act of the certification is complete, OFE will, 1969, 42 U.S.C 4321 et seq. (NEPA) has within 30 days after the end of the 60 been completed. Upon completion of day review period, publish in the FED the NEPA review and unless OFE deERAL REGISTER a Notice of Acceptance termines on the basis of the record of of certification together with a pro the proceeding that the certification posed prohibition order stating therein fails to meet the requirements of the reasons for such order. This com $8 504.5, 504.6, and 504.8, OFE shall pubmences the prohibition order pro- lish a final prohibition order, together ceeding. If OFE does not believe it is with the information required by paraable to concur in the certification, OFE graph (c) of this section. In the case of shall notify the proposed order recipi a Notice of Proposed Non-Concurrence, ent and shall publish a Notice of Pro- at the end of the 45 day comment peposed Non-Concurrence in the FEDERAL riod, OFE will notify the proposed REGISTER within 30 days after the end order recipient and parties to the proof the 60 day review period. If OFE ceeding and publish a final Notice of finds that the certification with com Non-Concurrence in the FEDERAL REGpliance schedule is incomplete, OFE ISTER, if OFE determines it cannot conwill notify the proposed prohibition cur in the certification based upon adorder recipient as to the deficiencies, ditional information submitted during and provide an additional period of 30 the proceeding. If, at the end of the 45 days for the certification to be amend- day period, OFE believes it can concur ed and resubmitted. If a complete cer in the certification, OFE will notify tification is not submitted within this the proposed order recipient and parperiod, the proceeding shall be termi- ties to the proceeding and publish a nated in accordance with $ 501.52(b)(5). Notice of Acceptance followed by a new OFE will notify the proposed order re- 45 day comment period. cipient and other parties to the pro- (4) If a hearing has been requested, ceeding of the termination and publish OFE shall provide interested persons a notice in the FEDERAL REGISTER. with an opportunity to present oral OFE, on its own motion, may extend data, views and arguments at a public any period of time by publishing a no- hearing held in accordance with subtice to that effect in the FEDERAL REG- part C of this part. The hearing may ISTER.
consider, among other matters, the suf(3) The publication of the Notice of ficiency of the certification of the Acceptance or Notice of Proposed Non- owner or operator of the powerplant reConcurrence commences a period of 45 quired by section 301 of FUA, as days during which interested persons amended, and 88 504.5, 504.6, and 504.8 of may submit written comments or re- these regulations. quest a public hearing. During this pe- (5) OFE may terminate a prohibition riod, the recipient of the proposed order proceeding at any time prior to order and any other interested person the date upon which a final prohibition may submit any evidence that they 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 $8 504.5, 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. 95 620, 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 88 504.5 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 $8504.5, 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.
(b) If the petition is for an extension not serve to commence a public comof a temporary exemption, the peti- ment period. tioner must apply for this extension at (d) OFE will notify the owner or op least (90) days prior to the expiration erator within 60 days if supporting docof the temporary exemption.
umentation is needed to verify the cer
tification. (Department of Energy Organization Act, Pub. L. 95–91, 91 Stat. 565 (42 U.S.C. 7101 et [54 FR 52892, Dec. 22, 1989) seq.); Powerplant and Industrial Fuel Use Act of 1978, Pub. L. 95-620, 92 Stat. 3269 (42 8501.62 Petition contents. U.S.C. 8301 et seq.); Omnibus Budget Rec
(a) A petition for exemption should onciliation Act of 1981, Pub. L. 97–35; E.O.
include the following information: 12009, 42 FR 46267, Sept. 15, 1977)
(1) The name of the petitioner; [46 FR 59889, Dec. 7, 1981, as amended at 47 (2) The name and location of the unit FR 50849, Nov. 10, 1982; 54 FR 52892, Dec. 22, for which an exemption is being re1989]
(3) The specific exemption(s) being $501.61 Certification contents.
requested; and (a) A self-certification filed under (4) The name, address, and telephone section 201(d) of FUA should include number of the person who can supply the following information:
further information. (1) Owner's name and address.
(b) Table of contents. Include only (2) Operator's name and address. those sections contained in the peti(3) Plant location and address,
tion. (4) Plant configuration (combined (c) Introduction. Include the folcycle, simple cycle, topping cycle, etc.)
lowing: (5) Design capacity in megawatts
(1) Description of the facility under (MW).
consideration; (6) Fuel(s) to be used by the new fa
(2) Description of the unit and fuel cility.
the petitioner proposes to burn in that (7) Name of utility purchasing elec
unit, including the purpose of and need tricity from the proposed facility and
for the unit; and
(3) Description of the operational repercent of total output to be sold. (8) Date unit is expected to be placed
quirements for the unit, including size
(capacity, input and output in millions in service.
of Btu's per hour), output in terms of (9) Certification by an officer of the
product or service to be supplied, fuel company or his designated representa
capability, and operating mode, includtive certifying that the proposed facil
ing capacity factor, utilization factor, ity:
and fluctuations in the load. (i) Has sufficient inherent design
(d) General requirements. The evidence characteristics to permit the addition
required under part 503 subpart B for of equipment (including all necessary
each exemption(s) for which the petipollution devices) necessary to render
tioner is applying: such electric powerplant capable of
(1) No alternate power supply (8 503.8): using coal or another alternate fuel as
(2) Use of mixtures (8503.9); its primary energy source; and
(3) Alternative site (8 503.11); (ii) Is not physically, structurally, or
(4) Compliance Plan (8 503.12); technologically precluded from using (5) Environmental impact analysis coal or another alternate fuel as its (8503.13): primary energy source.
(6) Fuels search (8 503.14). (b) A self-certification filed pursuant (e) Specific evidence. Evidence reto $ 501.61(a) shall be effective to estab- quired for each exemption, segregated lish compliance with the requirement by exemption (part 503 subparts C and of section 201(a) of FUA as of the date D). filed.
(f) References. (1) Specify the reports, (c) OFE will publish a notice in the documents, experts, and other sources FEDERAL REGISTER within fifteen days consulted in compiling the petition. reciting that the certification has been cite these sources in accordance with filed. Publication of this notice does acceptable documentation standards,
and indicate the part of the petition to $501.63 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 exnificant 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 8501.33. 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