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(iii) Unavailability of adequate land or facilities for handling, using, or storing an alternate fuel;

(iv) Unavailability of adequate land or facilities for controlling and disposing of wastes, including pollution control equipment or devices necessary to assure compliance with applicable environmental requirements;

(v) Unavailability of adequate and reliable supply of water, including water for use in compliance with applicable environmental requirements; or

(vi) Other site limitations exist which will not permit the location or operation of the proposed unit using an alternate fuel.

(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 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); and

(3) The anticipated duration of the site limitation which constitutes the basis for the exemption.

(c) Duration. This temporary exemption, taking into account any extensions and renewals, may not exceed five years. (46 FR 59903, Dec. 7, 1981, as amended at 54 FR 52894, Dec. 22, 1989) $503.23 Inability to comply with appli

cable environmental requirements. (a) Eligibility. Section 211(a)(3) of the Act provides for a temporary exemption due to an inability to comply with applicable environmental requirements. To qualify a petitioner must demonstrate that despite diligent good faith efforts:

(1) The petitioner will be unable, as of the projected date of commencement of operation, to comply with the applicable prohibitions of the Act without violating applicable Federal or State environmental requirements; and

(2) The petitioner will be able to comply with the applicable prohibi

tions of the Act and with applicable environmental requirements by the end of the temporary exemption period.

NOTE: (1) For purposes of considering an exemption under this section, OFE's decision will be based solely on an analysis of the petitioner's capacity to physically achieve applicable environmental requirements. The petition should be directed toward those conditions or circumstances which make it physically impossible to comply during the temporary exemption period. The cost of compliance is not relevant, but cost-related considerations may be presented as part of a demonstration submitted under $503.21.

(2) Prior to submitting an exemption petition, it is recommended that a meeting be requested with OFE and EPA or the appropriate State or local regulatory agency to discuss options for operating an alternate fuel fired facility in compliance with applicable environmental requirements.

(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) Where the petitioner has applied for a construction permit from EPA or an appropriate State agency prior to petitioning for an exemption under this section, a copy of that application and synopsis of supporting documents filed with or subsequent to that application must be submitted to OFE with the petition or at the time filed with the permitting agency;

(2) To the extent applicable, a copy of the EPA or State denial of the construction permit application;

(3) To the extent applicable, à synopsis of the administrative record of the EPA or State or local permit proceedings;

(4) To the extent applicable, a summary of the technology upon which the denial was based, including a performance comparison between the proposed technology and that technology which would provide the maximum possible reduction of pollution;

(5) An examination of the environmental compliance of the facility, including an analysis of its ability to meet applicable standards and criteria when using both the proposed fuel and the alternate fuel(s) which would provide the basis for exemption. All such analysis must be based on accepted analytical techniques, such as air quality

modeling, and reflect current condi be emitted by the facility; or, even tions of the area which would be af with the application of the lowest fected by the facility. The petitioner is achievable emission rate, the use of an responsible for obtaining the necessary alternate fuel will cause or contribute data to accurately characterize these to concentrations in an air quality conconditions. Environmental compliance trol region, of a pollutant for which must be examined in the context of any national ambient air quality available pollution control equipment standard is or would be exceeded; and which would provide the maximum pos (11) No alternate power supply exists, sible reduction of pollution. The anal as required under $503.8 of these reguysis must contain: (i) Requests for bids lations. and other inquiries made and responses (2) A petition by certification under received by the petitioner concerning this paragraph must include: the availability and performance of (i) Duly executed certifications repollution control equipment; (ii) con quired under paragraph (a)(1) of this tracts signed, if any, for an alternate section; fuel supply and for the purchase and in

(ii) Exhibits containing the basis for stallation of pollution control equip

the certifications required under parament; or (iii) other comparable evi

graph (d)(1) of this section (including dence such as technical studies docu

those factual and analytical materials menting the efficacy of equipment to

deemed by the petitioner to be suffimeet applicable requirements;

cient to support the granting of this (6) An examination of any regulatory

exemption); and options available to the petitioner in

(iii) The anticipated duration of the seeking to achieve environmental com

circumstances which constitute the pliance (such as offsets, variances, and

basis for the exemption. State Implementation Plan revisions); [46 FR 59903, Dec. 7, 1981, as amended at 54

(7) Any other documentation which FR 52894, Dec. 22, 1989] demonstrates an inability to comply with applicable environmental require 8503.24 Future use of synthetic fuels. ments;

(a) Eligibility. Section 211(b) of the (8) No alternate power supply exists, Act provides for a temporary exempas required under $503.8 of these regu tion based upon the future use of synlations.

thetic fuels. To qualify, a petitioner (c) Duration. This temporary exemp must certify that: tion, taking into account any exten (1) The petitioner will be able to sion and renewals, may not exceed 5 comply with the applicable prohibiyears.

tions imposed by the Act by the use of (d) Certification alternative. (1) To a synthetic fuel derived from coal or qualify for this exemption, in lieu of another alternate fuel as a primary enmeeting the evidentiary requirements ergy source in the proposed facility by of paragraph (b) of this chapter, a peti the end of the proposed exemption petioner may certify that, for the period riod; of the exemption:

(2) The petitioner will not be able to (i) The site for the facility is or will comply with the applicable prohibibe located in a Class I area or Class II tions imposed by the Act by use of a area in which the allowable increment synthetic fuel until the end of the proestablished by law has been consumed, posed exemption period; and as defined in part of the Clean Air (3) No alternate power supply exists, Act; the use of an alternate fuel will as required under $503.8 of these regucause or contribute to concentrations lations. of pollutants which would exceed the (b) Evidence required in support of a maximum allowable increases in a petition. The petition must include the Class I or Class II area even with the following evidence in order to make application of best available control the demonstration required by this sectechnology; the site for the facility is tion: or will be located in a non-attainment (1) Duly executed certifications rearea as defined in part D of the Clean quired under paragraph (a) of this secAir Act for any pollutant which would tion;

(2) Exhibits containing the basis for (c) Certification alternative. If the petithe certifications required under para tioner requires use of oil or natural gas graph (a) of this section (including in a unit, during the construction of an those factual and analytical materials alternate-fuel fired unit, the petitioner deemed by the petitioner to be suffi may substitute, in lieu of the evicient to support the granting of this dentiary requirements of paragraphs exemption); and

(b)(1) and (2) of this section: (3) A preliminary compliance plan, (1) A duly executed certification, inincluding to the extent available, the cluding the requested duration of the information required under $503.12.

exemption, that the unit will be oper(c) Final Compliance Plan. Before an

ated on oil or natural gas only during exemption may become effective, the

the construction of an alternate fuel petitioner must submit and OFE must

fired unit to be owned or operated by approve a final compliance plan as re

the petitioner; and quired by $503.12. (d) Duration. This temporary exemp

(2) Exhibits containing the basis for

the certifications required under paration may be granted for a period of up

graph (c)(1) of this section (including to ten (10) years. Unless the petitioner

those factual and analytical materials requests otherwise, any temporary ex

deemed by the petitioner to be suffiemption from the fuel use prohibitions of the Act for the future use of syn

cient to support the granting of this

exemption). thetic fuels will commence on the date of commercial operation of the facility.

(d) Duration. This temporary exemp

tion, taking into account extension NOTE: Contracts based on the anticipated and renewals, may not exceed 5 years. successful demonstration of a development program and/or the anticipated economic (46 FR 59903, Dec. 7, 1981, as amended at 54 feasibility of a synthetic fuels facility, will FR 52894, Dec. 22, 1989] generally be sufficient to meet the "binding contract" requirements for this exemption.

Subpart D-Permanent [46 FR 59903, Dec. 7, 1981; 47 FR 15315, Apr. 9, Exemptions for New Facilities 1982; 54 FR 52894, Dec. 22, 1989)

8503.30 Purpose and scope. $503.25 Public interest. (a) Eligibility. Section 211(c) of the

(a) This subpart implements the pro

visions contained in section 212 of the Act provides for a temporary public interest exemption. To qualify, a peti

Act with regard to permanent exemp

tions for new facilities. tioner must demonstrate that: (1) The unit will be capable of com

(b) This subpart establishes the criplying with the applicable prohibitions

teria and standards which owners or at the end of the proposed exemption

operators of new powerplants and inperiod;

stallations who petition for a perma(2) The granting of the exemption

nent exemption must meet to sustain would be in accord with the purposes of

their burden of proof under the Act. the Act and would be in the public in

(c) All petitions for permanent exterest; and

emptions for new facilities shall be (3) No alternate power supply exists,

submitted in accordance with the proas required under $503.8 of these regu

cedures set out in part 501 of this chaplations.

ter and the applicable requirements of (b) Evidence required in support of a

part 503 of these regulations. petition. The petition must include the following evidence in order to make

8 503.31 Lack of alternate fuel supply the demonstration required by this sec

for the first 10 years of useful life. tion:

(a) Eligibility. Section 212(a)(1)(A)(i) of (1) Substantial evidence to corrobo the Act provides for a permanent exrate the eligibility requirements iden- emption due to lack of an adequate and tified above; and

reliable supply of alternate fuel within (2) The anticipated duration of the the first 10 years of useful life of the circumstances which constitute the proposed unit. To qualify, a petitioner basis for the exemption.

must certify that:

(1) A good faith effort has been made the design and operational requireto obtain an adequate and reliable sup ments of the proposed unit; ply of an alternate fuel for use as a pri (2) The cost of using such a supply mary energy source of the quality and would substantially exceed the cost of quantity necessary to conform with

using imported petroleum as a primary the design and operational require energy source during the useful life of ments of the unit;

the proposed unit as defined in $503.6 (2) Such a supply is not likely to be (cost calculation) of these regulations; available within the first 10 years of (3) No alternate power supply exists, useful life of the proposed unit;

as required under $503.8 of these regu(3) No alternate power supply exists, lations. as required under $503.8 of these regu (4) Use of mixtures is not feasible, as lations;

required under $503.9 of these regula(4) Use of mixtures is not feasible, as tions; and required under $503.9 of these regula (5) Alternative sites are not availtions; and

able, as required under $503.11 of these (5) Alternative sites are not avail regulations. able, as required under $503.11 of these (b) Evidence required in support of a regulations.

petition. The petition must include the (b) Evidence required in support of a following evidence in order to make petition. A petition must include the the demonstration required by this secfollowing evidence in order to make tion: the demonstration required by this sec (1) Duly executed certifications retion:

quired under paragraph (a) of this sec(1) Duly executed certifications re tion; quired under paragraph (a) of this sec (2) Exhibits containing the basis for tion;

certifications required under paragraph (2) Exhibits containing the basis for (a) of this section (including those facthe certifications required under para tual and analytical materials deemed graph (a) of this section (including by the petitioner to be sufficient to those factual and analytical materials

support the granting of this exempdeemed by the petitioner to be suffi tion); cient to support the granting of this (3) Environmental impact analysis, exemption);

as required under $503.13 of these regu(3) Environmental impact analysis, lations; as required under $503.13 of these regu (4) Fuels search, as required under lations; and

$503.14 of these regulations; and (4) Fuels search, as required under (5) All data required by $503.6 (cost $503.14 of these regulations.

calculation) of these regulations nec

essary for computing the cost calcula[46 FR 59903, Dec. 7, 1981, as amended at 54

tion formula. FR 52895, Dec. 22, 1989)

[46 FR 59903, Dec. 7, 1981, as amended at 47 $ 503.32 Lack of alternate fuel supply FR 15315, Apr. 9, 1982; 54 FR 52895, Dec. 22.

at a cost which does not substan 1989]
tially exceed the cost of using im-
ported petroleum.

8503.33 Site limitations. (a) Eligibility. Section 212(a)(1) (A)(ii) (a) Eligibility. Section 212(a)(1)(B) of of the Act provides for a permanent ex the Act provides for a permanent exemption due to lack of an alternate emption due to site limitations. To fuel supply at a cost which does not qualify for such an exemption, a petisubstantially exceed the cost of using tioner must certify that: imported petroleum. To qualify a peti (1) One or more specific physical limtioner must certify that:

itations relevant to the location or op(1) A good faith effort has been made eration of the proposed facility exist to obtain an adequate and reliable sup which, despite good faith efforts, canply of an alternate fuel for use as a pri- not reasonably be expected to be overmary energy source of the quality and come within five years after comquantity necessary to conform with mencement of operations;

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

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

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

state environmental requirements; and NOTE: Examples of the types of site limita

Reasonable alternative sites, tions to which a petitioner may certify in

which would permit the use of alterorder 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 result of a specific physical limitation;

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

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

titioner's capacity to physically achieve ap(iv) Unavailability of adequate land or fa plicable environmental requirements. The cilities 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 ance with applicable environmental require $503.32 (Lack of alternate fuel supply). ments;

(2) Prior to deciding to submit an exemp(v) Unavailability of adequate and reliable tion petition, it is recommended that a petisupply of water, including water for use in tioner request a meeting with OFE and EPA compliance with applicable environmental or the appropriate state or local regulatory requirements; 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 pethe 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: quired under paragraph (a) of this sec (1) Where the petitioner has applied tion;

for a construction permit from EPA or (2) Exhibits containing the basis for

an appropriate state agency prior to the 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 supdeemed 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 as 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

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