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nomically feasible due to design or spe (iii) A schedule indicating how any cial circumstances.

necessary permits and approvals re(46 FR 59903, Dec. 7, 1981, as amended at 54

quired to burn an alternate fuel will be FR 52894, Dec. 22, 1989)

obtained; and

(iv) Any other documentary evidence 8 503.11 Alternative sites general re- which indicates an ability to comply

quirement for permanent exemp with the applicable prohibitions of the tions for new powerplants.

Act. (a) Criteria. To qualify for permanent (2) Any exemption for which a comexemption due to lack of alternate fuel pliance plan is required shall not be efsupply, site limitations, environmental fective until the compliance plan is aprequirements, or inadequate capital, proved by DOE. section 212(a) of the Act requires a (3) If the petition is granted, an updemonstration that one of these ex dated, duly executed plan must be subemptions would be available for any mitted to OFE within one (1) month of reasonable alternative site for the fa an alteration of any milestone in the cility.

compliance plan, together with the rea(b) Evidence. The petition must in- sons for the alteration and its impact clude the following evidence in order to upon the scheduling of all other milemake the demonstration required by stones in the plan. this section:

(1) Duly executed certifications to 8503.13 Environmental impact analy. the criteria set forth in paragraph (a) sis. of this section; and

In order to enable OFE to comply (2) Exhibits containing the basis for with NEPA, a petitioner must include the certifications submitted under this

the information indicated in this secsection (including those factual and an

tion if a permanent exemption is realytical materials deemed by the peti quested. Material which has been pretioner to be sufficient to support its

pared pursuant to any Federal, State certifications to this general require or local requirement for environmental ment).

information for this unit or site may 146 FR 59903, Dec. 7, 1981, as amended at 54

be incorporated by reference and apFR 52894, Dec. 22, 1989)

pended to the petition. Guidelines is

sued by OFE for environmental reports $ 503.12 Terms and conditions; compli should be used in preparing this analyance plans.

sis (44 FR 63740, November 5, 1979). (a) Terms and conditions generally. A These guidelines, which are also availpetitioner must comply with any terms able in the OFE public document room, and conditions imposed upon the grant have been designed to insure that enviof an exemption petition. OFE will ronmental reports follow the format limit any such terms and conditions to prescribed by Council on Environthe unit(s) which is the subject of the mental Quality final regulations implepetition.

menting NEPA. The guidelines are sub(b) Compliance plans for temporary ex ject to discussion at a prepetition conemptions. (1) Any compliance plan re ference and to modification according quired to accompany a petition for a to the facts of a particular case. temporary exemption shall include the (a) All petitions for permanent exfollowing:

emptions must contain the following (i) A detailed schedule of progressive information: events and the dates upon which the (1) A description of the facility, inevents are to take place, indicating cluding site location, and surroundhow compliance with the applicable ings, alternative site(s), the facility's prohibitions of the Act will occur;

current proposed operations, its fuel (11) Evidence of binding contracts for capability, and its pollution abatement fuel, or for facilities for the production systems and equipment (including of fuel, which are required for compli- those systems and equipment necance with the applicable prohibitions essary for all fuel scenarios considof the Act;

ered);

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(3) Will your facility affect a des

ignated wild, scenic, or recre ation river (Wild and Scenic

Rivers Act)? ............ (4)(A) Is your facility located

within a county in which critical habitat for threatened or endangered species are known to exist (Endangered

Species Act)? ........ (4)(B) Has a qualified biologist

determined that your facility will not affect any species on the Threatened and Endan

gered Species list? (5) Is your facility located on, or

will it affect land that has been classified as prime or unique farmland or rangeland by the U.S. Department of

Agriculture? ....... (6) Is your facility located on, or

will it affect, historical archae ological, or cultural resources that have been designated pursuant to the National Historic Preservation Act?

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(2) A description of the existing environment, including air, water, and land resources;

(3) Direct and indirect environmental impacts of the proposed action including impacts of alternative fuel scenarios, and no build alternatives.

(4) Regulatory requirements governing the facility, including a description of Federal, State and local requirements for air, water, noise and solid waste disposal which must be met for each fuel considered.

(b) For exemptions for cogeneration, the information enumerated below is to be submitted in lieu of the information required by paragraph (a) of this section. However, submission of the following information merely establishes a rebuttable presumption that the grant or denial of the exemption would have no significant environmental impact. OFE may, in individual cases, during the course of the administrative proceeding, determine that additional environmental information is required. In such cases, the petitioner will be required to submit the information described in paragraph (a) of this section.

(1) A certification that the petitioner will, prior to operating the unit under the exemption, secure all applicable environmental permits and approvals pursuant to, but not limited to, the following: Clean Air Act, Rivers and Harbors Act, Coastal Zone Management Act, Safe Drinking Water Act, Resource Conservation and Recovery Act; and

(2) Information required by the following environmental checklist must be provided and certified as accurate:

Environmental Checklist for FUA Certification Exemptions Instructions

All questions are to be answered by placing a check in the appropriate box. N/A represents (not applicable). Although it is not required, the petitioner may elaborate on any question in writing on a separate sheet of paper.

Yes No NA

(46 FR 59903, Dec. 7, 1981, as amended at 47 FR 15315, Apr. 9, 1982; 51 FR 18866, May 22, 1986: 52 FR 658, Jan. 7, 1987; 54 FR 52894, Dec. 22, 1989)

8503.14 Fuels search.

Prior to submitting a petition for a permanent exemption for lack of alternate fuel supply, site limitations, inadequate capital, or state or local requirements, a petitioner must examine the use of conventional solid coal as a primary energy source at the site under consideration, and at reasonable alternative sites. Where a petitioner believes that its use of such coal would be infeasible, however, and where OFE and the petitioner can reach accord, it may evaluate use of a different alternate fuel in lieu of solid coal. A petitioner of these exemptions must demonstrate for any fuel examined that he would qualify for an exemption. (54 FR 52894, Dec. 22, 1989)

(1) Is your facility located in, or will it affect a wetland (Protection of Wetlands Executive Order No. 11990)? ................ (2) Is your facility located in, or

will it affect, a 100-year floodplain (Floodplain Management Executive Order No. 11988)?

Subpart C-Temporary Exemptions for New Facilities 8503.20 Purpose and scope.

(a) This subpart implements the provisions contained in section 211 of the Act with regard to temporary exemp tions for new facilities.

(b) This subpart establishes the criteria and standards which owners or operators of new powerplants who petition for a temporary exemption must meet to sustain their burden of proof under the Act.

(c) All petitions for temporary exemptions shall be submitted in accordance with the procedures set out in part 501 of this chapter and the applicable requirements of part 503 of these regulations.

(d) The duration of any temporary exemption granted under this subpart shall be measured from the date that the facility is placed in service using petroleum or natural gas. (46 FR 59903, Dec. 7, 1981, as amended at 54 FR 52894, Dec. 22, 1989) 8503.21 Lack of alternate fuel supply.

(a) Eligibility. Section 211(a)(1) of the Act provides for a temporary exemp tion due to the unavailability of an adequate and reliable supply of an alternate fuel at a cost which does not substantially exceed the cost of using imported petroleum. To qualify, a petitioner must certify that:

(1) A good faith effort has been to obtain an adequate and reliable supply of an alternate fuel of the quality necessary to conform to the design and operational requirements of the unit;

(2) For the period of the proposed exemption, the cost of using such alternate fuel would substantially exceed the cost of using imported petroleum as a primary energy source as defined in 8503.6 (Cost calculation) of these regulations;

(3) The petitioner will be able to comply with the applicable prohibitions of the Act at the end of the proposed exemption period; and

(4) 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 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) All data required by 8503.6 (cost calculation) of these regulations necessary for computing the cost calculation formula; and

(4) The anticipated duration of the lack of alternate fuel supply which constitutes the basis for the exemp tion.

(c) Duration. This temporary exemption, taking into account any extensions or renewals, may not exceed 10 years. (46 FR 59903, Dec. 7, 1981, as amended at 47 FR 15315, Apr. 9, 1982; 54 FR 52894, Dec. 22, 1989) 8603.22 Site limitations.

(a) Eligibilitu. Section 211(a)(2) of the Act provides for a temporary exemption due to a site limitation. To qualify for such an exemption, a petitioner must certify that:

(1) One or more specific physical limitations relevant to the location or operation of the proposed facility exist which, despite diligent good faith efforts, cannot be overcome before the end of the proposed exemption period:

(2) The petitioner will be able to comply with the applicable prohibitions of the Act at the end of the proposed exemption period; and

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

NOTE: Examples of the types of site limitations to which a petitioner may certify in order to qualify for this exemption include:

(i) Inaccessability of alternate fuels as a result of a specific physical limitation;

(ii) Unavailability of transportation facilities for alternate fuels;

(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 exemp tion, 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)

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, a 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 conditions of the area which would be affected by the facility. The petitioner is responsible for obtaining the necessary data to accurately characterize these conditions. Environmental compliance must be examined in the context of available pollution control equipment which would provide the maximum possible reduction of pollution. The analysis must contain: (i) Requests for bids

8 503.23 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 prohibitions 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

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 (d)(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); (7) Any other documentation which

(46 FR 59903, Dec. 7, 1981, as amended &t 54 demonstrates an inability to comply

FR 52894, Dec. 22, 1989) with applicable environmental require

8503.24 Future use of synthetic fuels. ments; (8) No alternate power supply exists,

(a) Eligibility. Section 211(b) of the as required under $503.8 of these regu

Act provides for a temporary exemplations.

tion based upon the future use of syn(c) Duration. This temporary exemp

thetic fuels. To qualify, a petitioner tion, taking into account any exten

must certify that: sion and renewals, may not exceed 5

(1) The petitioner will be able to years.

comply with the applicable prohibi(d) Certification alternative. (1) Totions imposed by the Act by the use of qualify for this exemption, in lieu of

a synthetic fuel derived from coal or meeting the evidentiary requirements another alternate fuel as a primary enof paragraph (b) of this chapter, a peti

ergy source in the proposed facility by tioner may certify that, for the period the end of the proposed exemption peof the exemption:

riod; (i) The site for the facility is or will (2) The petitioner will not be able to be located in a Class I area or Class II comply with the applicable prohibiarea in which the allowable increment tions imposed by the Act by use of a established by law has been consumed. synthetic fuel until the end of the proas defined in part of the Clean Air posed exemption period; and Act; the use of an alternate fuel will (3) No alternate power supply exists, cause or contribute to concentrations as required under $503.8 of these reguof pollutants which would exceed the lations. maximum allowable increases in a (b) Evidence required in support of a Class I or Class II area even with the petition. The petition must include the application of best available control following evidence in order to make technology; the site for the facility is the demonstration required by this secor will be located in a non-attainment tion: area as defined in part D of the Clean (1) Duly executed certifications reAir Act for any pollutant which would quired under paragraph (a) of this secbe emitted by the facility; or, even tion; with the application of the lowest (2) Exhibits containing the basis for achievable emission rate, the use of an the certifications required under paraalternate fuel will cause or contribute graph (a) of this section (including to concentrations in an air quality con those factual and analytical materials trol region, of a pollutant for which deemed by the petitioner to be suffiany national ambient air quality cient to support the granting of this standard is or would be exceeded; and exemption); and

(ii) No alternate power supply exists, (3) A preliminary compliance plan, as required under $503.8 of these regu including to the extent available, the lations.

information required under $503.12.

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