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(2) No alternate power supply exists, ments. To qualify, a petitioner must is required under $503.8 of these regu demonstrate that despite good faith efations;

forts: (3) Use of mixtures is not feasible, as (1) The petitioner will be unable equired under $503.9 of these regula within 5 years after beginning operions; and

ation, to comply with the applicable (4) Alternative sites are not avail- prohibitions imposed by the Act wit ble, as required under $ 503.11 of these out violating applicable Federal or egulations.

state environmental requirements; and

(2) Reasonable alternative sites, NOTE: Examples of the types of site limitaions to which a petitioner may certify in

which would permit the use of alterrder to qualify for this exemption include: nate fuels in compliance with applica(i) Inaccessibility of alternate fuels as a re ble Federal or state environmental realt of a specific physical limitation;

quirements, are not available. (ii) Unavailability of transportation faciliies for alternate fuels;

NOTE: (1) For purposes of considering an (iii) Unavailability of adequate land or fa exemption under this section, OFE's decision ilities for handling, using or storing an al will be based solely on an analysis of the peernate fuel;

titioner's capacity to physically achieve ap(iv) Unavailability of adequate land or fa plicable environmental requirements. The ilities for controlling and disposing of cost of compliance is not relevant, but costwastes, including pollution control equip- related considerations may be presented as ment or devices necessary to assure compli- part of a demonstration submitted under ince with applicable environmental require $503.32 (Lack of alternate fuel supply). nents;

(2) Prior to deciding to submit an exemp(V) Unavailability of adequate and reliable tion petition, it is recommended that a petiupply of water, including water for use in tioner request a meeting with OFE and EPA ompliance with applicable environmental or the appropriate state or local regulatory equirements; or

agency to discuss options for operating an (vi) Other site limitations exist which will alternate fuel-fired facility in compliance not permit the location or operation of the with the applicable environmental requireproposed unit using an alternate fuel.

ments. (b) Evidence required in support of the (b) [Reserved] petition. A petitioner must include in (c) Evidence required in support of a pehe petition the following evidence in tition. The petitioner must include in order to make the demonstration re the petition the following evidence in quired by this section:

order to make the demonstration re(1) Duly executed certifications re quired by this section: juired under paragraph (a) of this sec (1) Where the petitioner has applied ion;

for a construction permit from EPA or (2) Exhibits containing the basis for an appropriate state agency prior to he certifications required under para

petitioning for an exemption from OFE graph (a) of this section (including

under this section, a copy of such apthose factual and analytical materials

plication and a synopsis of all supleemed by the petitioner to be suffi

porting documents filed with or subsecient to support the granting of this quent to the application must be subexemption);

mitted to OFE with the petition or at (3) Environmental impact analysis,

the time filed with the permitting is required under $503.13 of these regu- agency: lations; and

(2) To the extent applicable, a copy of (4) Fuels search, as required under

the EPA or state denial of the con$503.14 of these regulations.

struction permit application; 46 FR 59903, Dec. 7, 1981, as amended at 54 (3) To the extent applicable, a synFR 52895, Dec. 22, 1989)

opsis of the administrative record of

the EPA or state or local permit pro$503.34 Inability to comply with appli ceedings;

cable environmental requirements. (4) To the extent applicable, a sum(a) Eligibility. Section 212(a)(1)(C) of mary of the technology upon which the the Act provides for a permanent ex- denial was based, including a performemption due to the inability to comply ance comparison between the proposed with applicable environmental require- technology and that technology which

provides the maximum possible reduc (i) The site for the facility is or will tion of pollution;

be located in a Class I area or Class II (5) An examination of the environ area in which the allowable increment mental compliance of the facility, in- established by law has been consumed, cluding an analysis of its ability to as defined in part of the Clean Air meet applicable standards and criteria Act; the use of an alternate fuel will when using both the proposed fuel and cause or contribute to concentrations the alternate fuel(s) which would pro- of pollutants which would exceed the vide the basis for the exemption. All maximum allowable increases in a such analysis must be based on accept- Class I or Class II area even with the ed analytical techniques, such as air application of best available control quality modeling, and reflect current technology; the site for the facility is conditions of the area which would be or will be located in a non-attainment affected by the facility. The petitioner area as defined in part D of the Clean is responsible for obtaining the nec Air Act for any pollutant which would essary data to accurately characterize be emitted by the facility; or, even these conditions. Environmental com with the application of the lowest pliance must be examined in the con achievable emission rate, the use of an text of available pollution control alternate fuel will cause or contribute equipment which would provide the to concentrations in an air quality conmaximum possible reduction of pollu- trol region of a pollutant for which any tion. The analysis must contain: (i) Re- national ambient air quality standard quests for bids and other inquiries is or would be exceeded; made and responses received by the pe (ii) No alternate power supply exists, titioner concerning the availability as required under $503.8 of these reguand performance of pollution control lations; equipment; or (ii) other comparable (iii) Alternative sites are not availevidence such as technical studies doc- able, as required under $503.11 of these umenting the efficacy of equipment to regulations; and meet applicable requirements;

(iv) Use of mixtures is not feasible, as (6) An examination of any regulatory required under $503.19 of these regulaoptions available to the petitioner in tions. seeking to achieve environmental com (2) A petition by certification under pliance (such as offsets, variances and this paragraph must include: State Implementation Plan (SIP) revi (i) Duly executed certifications resions); and

quired under paragraph (d)(1) of this (7) Any other documentation which section; demonstrates an inability to comply

(ii) Exhibits containing the basis for with applicable environmental require

the certifications required under paraments;

graph (d)(1) of this section (including (8) No alternate power supply exists those factual and analytical materials as required under $ 503.8 of these regu deemed by the petitioner to be suffilations;

cient to support the granting of this (9) Use of mixtures is not feasible, as

exemption); required under $503.9 of these regula

(iii) Environmental impact analysis, tions;

as required under $503.13 of these regu(10) Alternative sites are not avail- lations; and able, as required under $ 503.11 of these

(iv) Fuels search, as required under regulations;

$ 503.14 of these regulations. (11) Environmental impact analysis, 146 FR 59903, Dec. 7, 1981, as amended at 54 as required under $503.13 of these regu- FR 52895, Dec. 22, 1989) lations; and

(12) Fuels search, as required under $503.35 Inability to obtain adequate $ 503.14 of these regulations.

capital. (d) Certification alternative. (1) To (a) Eligibility. Section 212(a)(1)(D) of qualify for this exemption, in lieu of the Act provides for a permanent exmeeting the evidentiary requirements emption due to inability to obtain adeof paragraph (c) of this section, a peti- quate capital. To qualify, a petitioner tioner may certify that:

must certify that:

(1) Despite good faith efforts the petitioner will be unable to comply with the applicable prohibitions imposed by the Act because the additional capital required for an alternate fuel-capable unit beyond that required for the proposed unit cannot be raised;

(2) The additional capital cannot be raised:

(i) Due to specific restrictions (e.g., convenants on existing bonds) which constrain management's ability to raise debt or equity captial;

(ii) Without a substantial dilution of shareholder equity;

(iii) Without an unreasonably adverse affect on the utility's credit rating; or

(iv) In the case of non-investor-owned public utilities, without jeopardizing the utility's ability to recover its capital investment, through tariffs, without unreasonably adverse economic effect on its service area (such as adverse impacts on local industry or undue hardship to ratepayers).

(3) No alternative power supply exists, as required under $503.8 of these regulations;

(4) Use of mixtures is not feasible, as required under $503.9 of these regulations; and

(5) Alternative sites are not available, as required under $503.11 of these regulations.

(b) Evidence required in support of a petition. A petition must include the following evidence in order to make the demonstration required by this section:

(1) Duly executed certifications required under paragraph (a) of this section;

(2) Exhibits containing the basis for the certifications required under paragraph (a) of this section (including those factual and analytical materials deemed by the petitioner to be sufficient to support the granting of this exemption);

(3) Environmental impact analysis, as required under $503.13 of these regulations; and

(4) Fuels search, as required under $ 503.14 of these regulations. (46 FR 59903. Dec. 7. 1981, as amended at 47 FR 15315, Apr. 9, 1982; 54 FR 52895, Dec. 22. 1989)

$503.36 State or local requirements.

(a) Eligibility. Section 212(b) of the Act provides for an exemption due to certain State or local requirements. To qualify a petitioner must certify that:

(1) With respect to the proposed site of the unit, the operation or construction of the new unit using an alternate fuel is infeasible because of a State of local requirement other than a building code, nuisance, or zoning law;

(2) The petitioner has made a good faith effort to obtain a variance from the State or local requirement but has been unable to do so or has demonstrated why none is available;

(3) The granting of the exemption would be in the public interest and would be consistent with the purposes of the Act;

(4) The petitioner is not entitled to an exemption for lack of alternate fuel supply, site limitation, environmental requirements, or inability to obtain adequate capital at the site of the proposed powerplant or at any reasonable alternative site for the alternate fuel(s) considered;

(5) At the proposed site and every reasonable alternative site where the petitioner is not entitled to an exemption for lack of alternate fuel supply, site limitation, environmental requirements, or inability to obtain adequate capital, the petitioner nevertheless would be barred at each such proposed or alternate site from burning an alternate fuel by reason of a State or local requirement;

(6) No alternate power supply exists, as required under $503.8 of these regulations; and

(7) Use of mixtures is not feasible, as required under $503.9 of these regulations.

(b) Evidence required in support of a petition. The petition must include the following evidence in order to make the demonstration required by this section:

(1) Duly executed certifications required under paragraph (a) of this sec

tion;

(2) Exhibits containing the basis for the certifications required under paragraph (a) of this section (including those factual and analytical materials

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$ 503.37 Cogeneration.

The following table may be used to determine eligibility for a permanent exemption based on oil and natural gas savings.

AVERAGE ANNUAL UTILIZATION OF OIL AND NAT

URAL GAS FOR ELECTRICITY GENERATION BY STATE

(BTU's per KWHR sold]

Data are based upon 1987 oil, natural gas and electricity statistics published by DOE's Energy Information Administration.

EXAMPLE: The proposed cogeneration project is to be located in Massachusetts and is to use distillate oil. It will have a capacity of 50 MW, an average annual heat rate of 7600 BTU/KWHR, and be operated at a capacity factor of 90%. The annual fuel consumption is therefore calculated to be 2,996x109 Btu/yr. (50,000 KWX7600 BTU/KWHRx.9x8760 HR/YR) The oil and gas backed off the grid would be calculated to be .2070x109 BTU/YR. (50,000 KWx5250 BTU/KWHRx.98760 HR/YR) since the proposed unit would consume more oil that would be “backed off the grid, the unit would not be eligible for a permanent exemption based on savings of oil and natural gas. [54 FR 52895, Dec. 22, 1989)

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Alabama Arizona Arkansas California ..... Colorado ........ Connecticut .. Delaware Washington, DC. .. Florida Georgia Idaho ....... Illinois Indiana ....... lowa ........ Kansas Kentucky ........ Louisiana Maine Maryland Massachusetts Michigan Minnesota Mississippi Missouri Montana ......... Nebraska ....... Nevada New Hampshire .. New Jersey New Mexico New York ..... North Carolina ....... North Dakota ......... Ohio ......... Oklahoma ...... Oregon Pennsylvania ..... Rhode Island South Carolina ....... South Dakota Tennessee Texas Utah Vermont .....

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$503.38 Permanent exemption for cer

tain fuel mixtures containing nat.

ural gas or petroleum. (a) Eligibility. Section 212(d) of the Act provides for a permanent exemption for certain fuel mixtures. To qualify a petitioner must certify that:

(1) The petitioner proposes to use a mixture of natural gas or petroleum and an alternate fuel as a primary energy source;

(2) The amount of petroleum or natural gas proposed to be used in the mixture will not exceed the minimum percentage of the total annual Btu heat input of the primary energy sources needed to maintain operational reliability of the unit consistent with maintaining a reasonable level of fuel efficiency; and

(3) No alternate power supply exists, as required under $503.8 of these regulations.

(b) Evidence required in support of a petition. The petition must include the following evidence in order to make

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the demonstration required by this sec- U.S.C. $7101 et seq.); Powerplant and Industion:

trial Fuel Use Act of 1978, Pub. L. 95–620, 92 (1) Duly executed certifications re

Stat. 3289 (42 U.S.C. 8301 et seq.); Energy Sequired under paragraph (a) of this sec

curity Act, Pub. L. 96-294, 94 Stat. 611 (42 tion;

U.S.C. 8701 et seq.); E.O. 1209, 42 FR 46267, (2) Exhibits containing the basis for

Sept. 15, 1977. the certifications required under para- (Approved by the Office of Management and graph (a) of this section (including Budget under control number 1903–0075. See those factual and analytical materials 46 FR 63209, Dec. 31, 1981.) deemed by the petitioner to be suffi

SOURCE: 45 FR 53692, Aug. 12, 1980, unless cient to support the granting of this

otherwise noted. exemption);

(3) A description of the fuel mixture, 8504.2 Purpose and scope. including component fuels and the per

(a) Sections 504.5, 504.6, and 504.8, set centage of each such fuel to be used; and

forth the prohibitions that OFP, pursu(4) Environmental impact analysis as

ant to section 301 of the Act, as amendrequired under $503.13 of these regula

ed, may impose upon existing powertions.

plants after a review of the certifi(c) Solar mixtures. OFE will grant a cation and prohibition order complipermanent mixtures exemption for the ance schedule submitted by the owner use of a mixture of solar energy (in- or operator of a powerplant. Sectic cluding wind, tide, and other intermit 504.5 and 504.8 are explanatory sections, tent sources) and petroleum or natural and $ 504.6 provides the informational gas, where:

requirements necessary to support the (1) Solar energy will account for at

certification. least 20 percent of the total annual Btu (b) Sections 504.6 and 504.7, set forth heat input, of the primary energy

the prohibitions that OFP may impose sources of the unit; and

upon certain electing powerplants, pur(2) Petitioner meets the eligibility

suant to former section 301 (b) and (c) and evidentiary requirements of para

of FUA, where OFP can make the findgraphs (a) and (c) of this section.

ings as to the unit's technical capa(46 FR 59903, Dec. 7, 1981, as amended at 54 bility and financial feasibility to use FR 52896, Dec. 22, 1989)

coal or another alternate fuel as a pri

mary energy source. The prohibitions $8503.39_503.44 [Reserved]

may be made to apply to electing pow

erplants unless an exemption is grantPART 504–EXISTING POWERPLANTS

ed by OFP under the provisions of the

Final Rule for Existing Facilities (10 504.2 Purpose and scope.

CFR parts 500, 501 and 504) published at 504.3-504.4 [Reserved] 504.5 Prohibitions by order (certifying pow

45 FR 53682, Aug. 12, 1980 and 46 FR erplants under section 301 of FUA, as

59872, Dec. 7, 1981. Any person who amended).

owns, controls, rents or leases an exist504.6 Prohibitions by order (case-by-case). ing electing powerplant may be subject 504.7 Prohibition against excessive use of

to the prohibitions imposed by and the petroleum or natural gas in mixtureselecting powerplants.

sanctions provided for in the Act or 504.8 Prohibitions against excessive use of these regulation

these regulations, if OFP can make the petroleum or natural gas in mixtures findings required by former section 301 certifying powerplants.

(b) and (c) of FUA. 504.9 Environmental requirements for certifying powerplants.

(Department of Energy Organization Act, APPENDIX I TO PART 504 PROCEDURES FOR

Pub. L. 95-91, 91 Stat. 565 (42 U.S.C. 7101 et THE COMPUTATION OF THE REAL COST OF

seq.); Powerplant and Industrial Fuel Use CAPITAL

Act of 1978, Pub. L. 95-620, 92 Stat. 3269 (42 APPENDIX II TO PART 504-FUEL PRICE COM U.S.C. 8301 et seq.); Omnibus Budget RecPUTATION

onciliation Act of 1981, Pub. L. 97–35; E.O. AUTHORITY: Department of Energy Organi

12009, 42 FR 46267, Sept. 15, 1977) zation Act, Pub. L. 95-91, 91 Stat. 565 (42 [47 FR 50849, Nov. 10, 1982]

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