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(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)
8501.61 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:
(i) 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
(11) 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 com ment 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) 8501.62 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 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 (8 503.12);
(5) Environmental impact analysis (8 503.13);
(6) Fuels search (8 503.14).
(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 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.
(g) 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 flle 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 8501.14(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
$ 501.64 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 in- (c) OFE will notify all participants if, terest exemption, for noncertification after the close of any public hearing or environmental exemptions, and for a comment period, it receives or obtains cogeneration exemption based on the any relevant information or evidence. public interest. OFE will provide a pub Participants may respond to such inlic comment period of at least fourteen formation or evidence in writing with(14) days from the date of publication in fourteen (14) days of such notificaduring which interested persons may tion. If OFE finds that the additional make written comments and request a information or evidence relates to mapublic hearing.
terial issues of disputed fact and may
significantly influence the outcome of 8501.65 Publication of notice of avail
the proceeding, OFE shall reopen the ability of draft EIS.
hearing on the issue or issues to which A Notice of Availability of any draft
the additional information or evidence EIS will be published in the FEDERAL
relates. REGISTER and comments thereon will also be solicited. Interested persons 8501.67 Petition redesignations. may request a hearing on any draft 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
quested, even though he may not qual(54 FR 52893, Dec. 22, 1989)
ify for the specific exemption origi
nally requested, or be entitled to the 8501.66 OFE evaluation of the record,
full exemption period provided by redecision and order.
quested exemption. OFE shall give pub(a) The administrative record in a
lic notice of any redesignation of an exproceeding under this part will consist
emption petition, and where a public of the proposed prohibition order and
hearing has been requested notice shall or petition and related documents, all
be given at least thirty (30) days prior relevant evidence presented at the pub- to such hearing. lic hearing, all written comments, and any other information in the posses 8501.88 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
to any petition. able, probative, and substantial evidence.
(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 submit
ISTER, and stating the reasons for such ted to it. OFE also may use any rel
extension. evant 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 issuthird persons relevant to the petition ance of the final order in all cases or other documents. OFE also may re
where an EIS is required. quest additional information, data, or (b)(1) OFE shall serve a copy of the analyses following a public hearing, if order granting or denying a petition any, if this information is necessary to for exemption to the petitioner and all resolve disputed issues in the record. persons on the service list in cases inAny relevant information received by volving a public hearing. OFE following the hearing that is not (2) OFE shall publish any order declared to be confidential under granting or denying a petition under $501.7(a)(11) shall be made part of the this subpart in the FEDERAL REGISTER public record with opportunity pro- together with a statement of the reavided for rebuttal.
sons for the grant or denial.
(c)(1) Any order granting or denying a petition for exemption shall be based upon consideration of the whole record or those parts thereof cited by a party and supported by, and in accordance with, reliable, probative and sub stantive evidence.
(2) The denial of a petition for exemption shall be without prejudice to the petitioner's right to submit an amended petition. OFE may, however, reject the amended petition if it is not materially different from the denied petition,
(d) OFE may design any terms and conditions included in any temporary exemption issued or extended under section 211 of FUA, to ensure, among other things, that upon expiration of the exemption the persons and powerplant covered by the exemption will comply with the applicable prohibitions under FUA. For purposes of the provision, the subsequent grant of a permanent exemption to the subject unit shall be deemed compliance with applicable prohibitions. (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 52893, Dec. 22, 1989)
Subpart G-Requests for Modifica
tion or Rescission of a Rule or
Order 8501.100 Purpose and scope.
(a) Anyone may request that OFE commence a rulemaking proceeding pursuant to 5 U.S.C. 553(e); however, this subpart provides the procedures to be followed by
(1) An interested person seeking the modification or rescission of a prohibition by rule applicable to a new facility;
(2) An owner or operator of a facility named in a prohibition by rule requesting the modification or rescission of that rule; or
(3) An owner or operator subject to an exemption order or a specific prohibition imposed by order requesting the modification or a rescission of that order.
(b) OFE also may commence a modification or rescission proceeding on its own initiative.
8501.69 Judicial review.
Any person aggrieved by any order issued by OFE under this subpart, must file, within sixty (60) days of publication of the final order in the FEDERAL REGISTER, a petition for judicial review in the United States Court of Appeals for the Circuit wherein he resides, or has his principal place of business. Exhaustion of administrative remedies for purposes of judicial review does not require filing a petition pursuant to subpart G for modification or rescission of the order to be reviewed.
8501.101 Proceedings to modify or re
scind a rule or order. (a) In response to a request duly filed by an interested person, OFE may commence a proceeding to modify or rescind a rule or order. If OFE determines that a request to modify or rescind a rule or order does not warrant commencement of a proceeding, it will deny the request and issue a brief statement of the reason(s) for the denial.
(b) A request for modification or rescission of a rule or order must comply with the requirements of $501.7 and must be filed at the address set forth in $ 501.11.
(c) Notice of the request for modification or rescission of an order must be given by the requester to each party to the original proceeding that resulted in the issuance of the original order for which modification or rescission is sought. If the number of parties to the original proceeding is too large to allow actual notice at a reasonable cost or within a reasonable time, a re(g) A decision by OFE to commence a proceeding under this subpart does not entitle the requester to a public hearing on the request for modification or rescission. A public hearing may be held, however, if, in its discretion, OFE considers that a public hearing will advance its evaluation of the request.
quester may ask that OFE give notice to the parties by publication in the FEDERAL REGISTER; however, this alternate notice does not bind OFE to commence a proceeding, if it subsequently determines that the request is not warranted.
(d) If OFE determines to grant a request to commence a proceeding to rescind or modify a rule or order, or OFE on its own initiative, commences a proceeding for the modification or rescission of a rule or order, it will give notice, either by service of a written notice or by oral communication (which communication must be promptly confirmed in writing) to each person upon whom the order was served that OFE proposes to modify or rescind, or, alternatively, by publication of notice in the FEDERAL REGISTER. OFE will give a reasonable period of time for each person notified to file a written response.
(e)(1) A copy of any written comments submitted to OFE under this subpart by a party to the original proceeding must also be sent to the requester. The party submitting such comments must certify to OFE that he has sent a copy of such comments to the requester.
(2) OFE may notify other persons participating in the proceeding of the comments and provide an opportunity for those notified to respond.
(1) A request for modification or rescission of a rule or order must contain a complete statement of all facts relevant to the action sought. The request must also include the names and addresses of all reasonably ascertainable persons who will be affected. Pertinent provisions contained in any documents believed to support a request may be briefly described, however, OFE reserves the right to obtain copies of any significant documents that will assist in making a determination on the merits of a request. The request must identify the specific order or rule for which modification or rescission is sought. A request should also indicate whether an informal conference will facilitate OFE's determination to commence, or not to commence a proceeding, or will assist OFE in making any determinations on material issues raised by the request.
8501.102 OFE evaluation of the record,
decision and order for modification or rescission of a rule or order. (a) OFE will consider the entire administrative record in its evaluation of the decision and order for modification or rescission of a rule or order. OFE may investigate and corroborate any statement in the petition or related documents and may utilize in its evaluation any relevant facts obtained by its investigations. OFE may solicit or accept submissions from third persons relevant to any request under this subpart and all interested persons will be afforded an opportunity to respond to these submissions. OFE may, in its discretion and on its own initiative, convene a conference, if it considers that a conference will advance its evaluation of the request.
(b) Criteria. Except where modification or rescission of a rule or order is initiated by OFE, OFE's decision to rescind or modify a rule or order will be based on a determination that there are significantly changed circumstances with respect to the applicability of a particular prohibition or exemption to the requester. OFE believes that there may be "significantly changed circumstances”, if:
(1) Significant material facts are subsequently discovered which were not known and could not have been known to the petitioner or to OFE at the time of the original proceeding;
(2) A law, regulation, interpretation, ruling, order or decision on appeal that was in effect at the time of the proceeding upon which the rule or order is based and which, if it had been made known to OFE, would have been relevant to the proceeding and would have substantially altered the outcome is subsequently discovered; or
(3) There has been a substantial change in the facts or circumstances upon which an outstanding and continuing order was based, which change