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(b) If the petition is for an extension (d) OFE will notify the owner or opof a temporary exemption, the peti- erator within 60 days if supporting doctioner must apply for this extension at umentation is needed to verify the cerleast (90) days prior to the expiration tification. of the temporary exemption.
(54 FR 52892, Dec. 22, 1989) (Department of Energy Organization Act, Pub. L. 95-91, 91 Stat. 565 (42 U.S.C. 7101 et 8501.62 Petition contents. seq.); Powerplant and Industrial Fuel Use
(a) A petition for exemption should Act of 1978, Pub. L. 95-620, 92 Stat. 3269 (42
include the following information: U.S.C. 8301 et seq.); Omnibus Budget Reconciliation Act of 1981, Pub. L. 97–36; E.O.
(1) The name of the petitioner; 12009, 42 FR 46267, Sept. 15, 1977)
(2) The name and location of the unit (46 FR 59889, Dec. 7, 1981, as amended at 47
for which an exemption is being reFR 50849, Nov. 10, 1982; 54 FR 52892, Dec. 22, 1989)
(3) The specific exemption(s) being
requested; and 8501.61 Certification Contents.
(4) The name, address, and telephone (a) A self-certification filed under number of the person who can supi section 201(d) of FUA should include
further information. the following information:
(b) Table of contents. Include only (1) Owner's name and address.
those sections contained in the peti(2) Operator's name and address.
tion. (3) Plant location and address.
(c) Introduction. Include the follow(4) Plant configuration (combined ing: cycle, simple cycle, topping cycle, etc.)
(1) Description of the facility under (5) Design capacity in megawatts
(2) Description of the unit and fuel (6) Fuel(s) to be used by the new fa
the petitioner proposes to burn in that cility.
unit, including the purpose of and need (7) Name of utility purchasing elec- for the unit; and tricity from the proposed facility and (3) Description of the operational repercent of total output to be sold.
quirements for the unit, including size (8) Date unit is expected to be placed (capacity, input and output in milli 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 ($503.9); 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 (8 503.13); 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 filed.
(1) 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, not serve to commence a public com and indicate the part of the petition to ment period.
which they apply. If the source is un
usual or little known, briefly describe its contents.
(2) Identify at the end of each section of the petition any information or any statement based, in whole or in part, on information or principles which, to petitioner's knowledge, represent significant innovations to or departures from generally accepted facts or principles.
(8) Appendices. Include in the appendices material which the petitioner believes substantiates any analyses fundamental to the petition, materials prepared in connection with it, and any other documents, studies, or analyses which are believed to be relevant to the decision to be made. Also, include in the appendices copies of any forms submitted as part of the petition.
(h) List of preparers. List the names with the qualifications and professional credentials of the principal contributors to the preparation of the petition. Indicate the sections or subject matters for which each principal contributor was responsible.
(1) Incorporation by reference. Pertinent information may be incorporated into the petition by reference when this can be done without impeding agency and public review. Referenced materials must be specifically identified and their contents briefly described in the petition. To incorporate by reference, the material must be submitted with the petition, or if previously submitted, the office to which it was submitted must be identified in the petition. The petitioner cannot incorporate by reference material based on proprietary data not available to OFE for review. (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)
case of a certification exemption, a Notice of Acceptance and Availability of Certification, signifying that an exemption proceeding has commenced. The notice will include a summary of the exemption petition, and publication will commence a public comment period of no less than forty-five (45) days during which interested parties may file written comments concerning the petition. In the case of a certification exemption, interested persons may request a public hearing during this period, pursuant to $ 501.33.
(2) OFE will notify the appropriate State agency having apparent primary authority to permit or regulate the construction or operation of a powerplant that an exemption proceeding has commenced and will consult with this agency to the maximum extent practicable. Copies of all accepted petitions also will be forwarded to EPA, as provided in $501.14(a).
(b) In processing an exemption petition, OFE shall comply with the requirements of the National Environmental Policy Act of 1969 (NEPA), the Council on Environmental Quality's implementing regulations, and the DOE guidelines implementing those regulations (45 FR 20694, Mar. 28, 1980). Compliance with NEPA may involve the preparation of (1) an environmental impact statement (EIS) evaluating the grant or denial of an exemption petition, (2) an environmental assessment (EA), or (3) a memorandum to the file finding that the grant of the requested petition would not be considered a major federal action significantly affecting the quality of the human environment. If an EIS is required, OFE will publish in the FEDERAL REGISTER a Notice of Intent (NOI) to prepare an EIS as soon as practicable after commencement of the proceeding. A public meeting may be held pursuant to 40 CFR 1501.7 to solicit comments or suggestions on the structure and content of the EIS. (46 FR 59889, Dec. 7, 1981, as amended at 54 FR 52893, Dec. 22, 1989)
8501.63 Notice of the commencement
of an administrative proceeding on
an exemption petition. (a)(1) When a petition is accepted, OFE will publish in the FEDERAL REGISTER a Notice of Acceptance, or, in the
8501.64 Publication of notice of avail.
ability of tentative staff analysis. OFE will publish in the FEDERAL REGISTER a Notice of the Availability of Tentative Staff Analysis for the noncertification temporary public interest exemption, for noncertification environmental exemptions, and for a cogeneration exemption based on the public interest. OFE will provide a public comment period of at least fourteen (14) days from the date of publication during which interested persons may make written comments and request a public hearing.
(c) OFE will notify all participants if, after the close of any public hearing or comment period, it receives or obtains any relevant information or evidence. Participants may respond to such information or evidence in writing within fourteen (14) days of such notification. If OFE finds that the additional information or evidence relates to material issues of disputed fact and may significantly influence the outcome of the proceeding, OFE shall reopen the hearing on the issue or issues to which the additional information or evidence relates.
$501.67 Petition redesignations.
OFE, with the petitioner's approval, will redesignate an exemption petition if the petitioner qualifies for an exemption other than the one originally requested, even though he may not qualify for the specific exemption originally requested, or be entitled to the full exemption period provided by requested exemption. OFE shall give public notice of any redesignation of an exemption petition, and where a public hearing has been requested notice shall be given at least thirty (30) days prior to such hearing.
8 501.65 Publication of notice of avail
ability of draft EIS. A Notice of Availability of any draft EIS will be published in the FEDERAL REGISTER and comments thereon will also be solicited. Interested persons may request a hearing on any draft EIS. Such hearing must be requested within thirty (30) days of publication of the Notice of Availability of the draft EIS. (54 FR 52893, Dec. 22, 1989) 8501.66 OFE evaluation of the record,
decision and order. (a) The administrative record in a proceeding under this part will consist of the proposed prohibition order and or petition and related documents, all relevant evidence presented at the public hearing, all written comments, and any other information in the possession of OFE and made a part of the public record of the proceeding. OFE will base its determination to issue a rule or order on consideration of the whole record, or those parts thereof cited by a party and supported by reliable, probative, and substantial evidence.
(b) OFE may investigate and corroborate any statement in any petition. document, or public comments submitted to it. OFE also may use any relevant facts it possesses in its evaluation and may request submissions from third persons relevant to the petition or other documents. OFE also may request additional information, data, or analyses following a public hearing, if any, if this information is necessary to resolve disputed issues in the record. Any relevant information received by OFE following the hearing that is not declared to be confidential under 8501.7(a)(11) shall be made part of the public record with opportunity provided for rebuttal.
8501.68 Decision and order.
(a)(1) OFE shall issue an order either granting or denying the petition for an exemption or permit within six (6) months after the end of the period for public comment and hearing applicable to any petition.
(2) OFE may extend the six (6) month period for decision to a date certain by publishing notice in the FEDERAL REGISTER, and stating the reasons for such extension.
(3) OFE will publish a final EIS at least thirty (30) days prior to take issuance of the final order in all cases where an EIS is required.
(b)(1) OFE shall serve a copy of the order granting or denying a petition for exemption to the petitioner and all persons on the service list in cases involving a public hearing.
(2) OFE shall publish any order granting or denying a petition under this subpart in the FEDERAL REGISTER together with a statement of the reasons for the grant or denial.
(c)(1) Any order granting or denying Subpart G-Requests for Modificaa petition for exemption shall be based tion or Rescission of a Rule or upon consideration of the whole record
Order or those parts thereof cited by a party and supported by, and in accordance $501.100 Purpose and scope. with, reliable, probative and sub
(a) Anyone may request that OFE stantive evidence.
commence a rulemaking proceeding (2) The denial of a petition for ex- pursuant to 5 U.S.C. 553(e); however, emption shall be without prejudice to this subpart provides the procedures to the petitioner's right to submit an be followed byamended petition. OFE may, however, (1) An interested person seeking the reject the amended petition if it is not modification or rescission of a prohibimaterially different from the denied tion by rule applicable to a new facilpetition.
ity; (d) OFE may design any terms and
(2) An owner or operator of a facility conditions included in any temporary
named in a prohibition by rule requestexemption issued or extended under
ing the modification or rescission of section 211 of FUA, to ensure, among
that rule; or
(3) An owner or operator subject to other things, that upon expiration of
an exemption order or a specific prohithe exemption the persons and power
bition imposed by order requesting the plant covered by the exemption will
modification or a rescission of that comply with the applicable prohibi
order. tions under FUA. For purposes of the
(b) OFE also may commence a modiprovision, the subsequent grant of a
fication or rescission proceeding on its permanent exemption to the subject own initiative. unit shall be deemed compliance with applicable prohibitions.
8501.101 Proceedings to modify or re
scind a rule or order. (Department of Energy Organization Act, Pub. L. 95-91, 91 Stat. 565 (42 U.S.C. 7101 et
(a) In response to a request duly filed seq.); Powerplant and Industrial Fuel Use
by an interested person, OFE may comAct of 1978, Pub. L. 95-620, 92 Stat. 3269 (42
mence a proceeding to modify or reU.S.C. 8301 et seq.); Omnibus Budget Rec
scind a rule or order. If OFE deteronciliation Act of 1981, Pub. L. 97-35; E.O. mines that a request to modify or re12009, 42 FR 46267, Sept. 15, 1977)
scind a rule or order does not warrant (46 FR 59889, Dec. 7, 1981, as amended at 47
commencement of a proceeding, it will FR 50849, Nov. 10, 1982; 54 FR 52893, Dec. 22,
deny the request and issue a brief 1989)
statement of the reason(s) for the de
nial. 8501.69 Judicial review.
(b) A request for modification or re
scission of a rule or order must comply Any person aggrieved by any order
with the requirements of $501.7 and issued by OFE under this subpart, must
must be filed at the address set forth in file, within sixty (60) days of publica
$501.11. tion of the final order in the FEDERAL
(c) Notice of the request for modificaREGISTER, a petition for judicial review
tion or rescission of an order must be in the United States Court of Appeals
given by the requester to each party to for the Circuit wherein he resides, or the original proceeding that resulted in has his principal place of business. Ex- the issuance of the original order for haustion of administrative remedies
which modification or rescission is for purposes of judicial review does not sought. If the number of parties to the require filing a petition pursuant to original proceeding is too large to subpart G for modification or rescis allow actual notice at a reasonable sion of the order to be reviewed.
cost or within a reasonable time, a re
quester may ask that OFE give notice (8) A decision by OFE to commence a to the parties by publication in the proceeding under this subpart does not FEDERAL REGISTER; however, this al- entitle the requester to a public hearternate notice does not bind OFE to ing on the request for modification or commence a proceeding, if it subse rescission. A public hearing may be quently determines that the request is held, however, if, in its discretion, OFE not warranted.
considers that a public hearing will ad(d) If OFE determines to grant a re vance its evaluation of the request. quest to commence à proceeding to rescind or modify a rule or order, or OFE
8501.102 OFE evaluation of the record,
decision and order for modification on its own initiative, commences a pro
or rescission of a rule or order. ceeding for the modification or rescission of a rule or order, it will give no
(a) OFE will consider the entire adtice, either by service of a written no
ministrative record in its evaluation of tice or by oral communication (which
the decision and order for modification communication must be promptly con
or rescission of a rule or order. OFE firmed in writing) to each person upon
may investigate and corroborate any whom the order was served that OFE
statement in the petition or related proposes to modify or rescind, or, alter
documents and may utilize in its evalnatively, by publication of notice in
uation any relevant facts obtained by the FEDERAL REGISTER. OFE will give a
its investigations. OFE may solicit or reasonable period of time for each per
accept submissions from third persons
relevant to any request under this subson notified to file a written response.
part and all interested persons will be (e)(1) A copy of any written com
afforded an opportunity to respond to ments submitted to OFE under this
these submissions. OFE may, in its dissubpart by a party to the original pro
cretion and on its own initiative, conceeding must also be sent to the re
vene a conference, if it considers that a quester. The party submitting such
conference will advance its evaluation comments must certify to OFE that he
of the request. has sent a copy of such comments to
(b) Criteria. Except where modificathe requester.
tion or rescission of a rule or order is (2) OFE may notify other persons
initiated by OFE, OFE's decision to reparticipating in the proceeding of the
scind or modify a rule or order will be comments and provide an opportunity
based on a determination that there for those notified to respond.
are significantly changed cir(1) A request for modification or re cumstances with respect to the appliscission of a rule or order must contain cability of a particular prohibition or a complete statement of all facts rel- exemption to the requester. OFE beevant to the action sought. The request lieves that there may be "significantly must also include the names and ad- changed circumstances” if: dresses of all reasonably ascertainable (1) Significant material facts are subpersons who will be affected. Pertinent sequently discovered which were not provisions contained in any documents known and could not have been known believed to support a request may be to the petitioner or to OFE at the time briefly described, however, OFE re- of the original proceeding; serves the right to obtain copies of any (2) A law, regulation, interpretation, significant documents that will assist ruling, order or decision on appeal that in making a determination on the mer- was in effect at the time of the proits of a request. The request must iden- ceeding upon which the rule or order is tify the specific order or rule for which based and which, if it had been made modification or rescission is sought. A known to OFE, would have been relrequest should also indicate whether evant to the proceeding and would have an informal conference will facilitate substantially altered the outcome is OFE's determination to commence, or subsequently discovered; or not to commence a proceeding, or will (3) There has been a substantial assist OFE in making any determina- change in the facts or circumstances tions on material issues raised by the upon which an outstanding and conrequest.
tinuing order was based, which change