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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 88 504.5, 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 $504.9, 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 $8504.5, 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 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 $8504.5, 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 prohi-
(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
$8501.53–501.56 (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.
8501.60 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 98 504.5 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 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.
(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:
(1) 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
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] $ 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 (8503.12);
(5) Environmental impact analysis (8503.13);
(6) Fuels search (8503.14).
(e) Specific evidence. Evidence required 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,
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 $ 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, Deo. 7, 1981, as amended at 47 mencement of the proceeding. A public FR 50849, Nov. 10, 1982)
meeting may be held pursuant to 40
CFR 1501.7 to solicit comments or sug- third persons relevant to the petition gestions on the structure and content or other documents. OFE also may reof the EIS.
quest additional information, data, or [46 FR 59889, Dec. 7, 1981, as amended at 54
analyses following a public hearing, if FR 52893, Dec. 22, 1989)
any, if this information is necessary to
resolve disputed issues in the record. 8501.64 Publication of notice of avail. Any relevant information received by
ability of tentative staff analysis. OFE following the hearing that is not OFE will publish in the FEDERAL
declared to be confidential under REGISTER a Notice of the Availability
$ 501.7(a)(11) shall be made part of the
public record with opportunity proof Tentative Staff Analysis for the noncertification temporary public interest
vided for rebuttal. exemption, for noncertification envi (C) OFE will notify all participants if, ronmental exemptions, and for a cogen after the close of any public hearing or eration exemption based on the public
comment period, it receives or obtains interest. OFE will provide a public any relevant information or evidence. comment period of at least fourteen Participants may respond to such in(14) days from the date of publication formation or evidence in writing withduring which interested persons may in fourteen (14) days of such notificamake written comments and request a
tion. If OFE finds that the additional public hearing.
information or evidence relates to ma
terial issues of disputed fact and may $ 501.65 Publication of notice of avail. significantly influence the outcome of ability of draft EIS.
the proceeding, OFE shall reopen the A Notice of Availability of any draft
hearing on the issue or issues to which EIS will be published in the FEDERAL the additional information or evidence REGISTER and comments thereon will relates. also be solicited. Interested persons may request a hearing on any draft
$ 501.67 Petition redesignations. EIS. Such hearing must be requested OFE, with the petitioner's approval, within thirty (30) days of publication of will redesignate an exemption petition the Notice of Availability of the draft if the petitioner qualifies for an exempEIS.
tion other than the one originally re(54 FR 52893, Dec. 22, 1989)
quested, even though he may not qual
ify for the specific exemption origi8501.66 OFE evaluation of the record, nally requested, or be entitled to the decision and order.
full exemption period provided by re(a) The administrative record in a
quested exemption. OFE shall give pubproceeding under this part will consist
lic notice of any redesignation of an exof the proposed prohibition order and
emption petition, and where a public or petition and related documents, all
hearing has been requested notice shall relevant evidence presented at the pub
be given at least thirty (30) days prior lic hearing, all written comments, and
to such hearing. any other information in the posses
$ 501.68 Decision and order. sion of OFE and made a part of the public record of the proceeding. OFE (a)(1) OFE shall issue an order either will base its determination to issue a granting or denying the petition for an rule or order on consideration of the exemption or permit within six (6) whole record, or those parts thereof months after the end of the period for cited by a party and supported by reli public comment and hearing applicable able, probative, and substantial evi to any petition. dence.
(2) OFE may extend the six (6) month (b) OFE may investigate and corrobo period for decision to a date certain by rate any statement in any petition, publishing notice in the FEDERAL REGdocument, or public comments sub ISTER, and stating the reasons for such mitted to it. OFE also may use any relevant facts it possesses in its evalua- (3) OFE will publish a final EIS at tion and may request submissions from least thirty (30) days prior to take