skip to main content

H.R. 5146 (95th): Powerplant and Industrial Fuel Use Act


The text of the bill below is as of Nov 9, 1978 (Passed Congress).


PUBLIC LAW 95-620—NOV. 9, 1978                                   92 STAT. 3289

Public Law 95-620
95th Congress
                                         An Act
To amend the Tariff Schedules of the United States to provide for the duty-free           Nov. 9, 1978
                   entry of competition bobsleds and luges.                               [H.R. 5146]

 Be it enacted hy the Senate and House of Representatives                      of the
United States of America in Congress assembled^                                 Powerplant and
                                                                                Industrial Fuel
                                                                                Use Act of 1978.
          TITLE I—BOBSLEDS AND LUGES                                            42 u s e 8301
                                                                                note.
   SEC. 101. S u b p a r t D of p a r t 5 of schedule 7 of the Tariff Schedules Bobsleds and
of the United States (19 U.S.C. 1202) is amended by striking out item luges, duty
734.97 and inserting in lieu thereof the following:                              suspension.
                                                                                 19 u s e 1202
   734.98 Bobsleds and luges ot a kind used in international compe-              app.
             tition                                        Free         Free
            Other                                          9% ad val.   45% ad val.
  SEC. 102. The amendments made by the first section of this title shall 19 USe 1202
apply with respect to articles entered, or withdrawn from warehouse, "°^^-
for consumption on or after the date of enactment of this title.

            TITLE I—GENERAL PROVISIONS
SEC. 101. SHORT TITLE; TABLE OF CONTENTS.
  (a) SHORT TITLE.—This Act may be cited as t h e "Powerplant and                        42 USe 8301
Industrial Fuel Use Act of 1978".                                                        note.
   (b)    TABLE OF C O N T E N T S . —

                         TITLE I—GENERAL PROVISIONS
Sec.   101. Short title; table of contents.         . , ,.. v
Sec.   102. Findings: statement of puriwses.
Sec.   103. Definitions.
Sec.   104. Territorial application.
                              TITLE II—NEW FACILITIES
                                 SUBTITLE A—PBOHiBrriONS
Sec. 201. New electric powerplants.
Sec. 202, New major fuel-burning installations.
                                  SUBTITLE B—EXEMPTIONS
Sec.    211. Temporary exemptions.
Sec.    212. Permanent exemptions.
Sec.    213. General requirements for exemptions.
Sec.    214. Terms and conditions; compliance plans.
                           TITLE III—EXISTING FACILITIES
                                 SUBTITLE A—PROHIBITIONS
Sec. 301. Existing electric powerplants.
Sec. 302. Existing major fuel-burning Installations.
Sec. 303. Rules relating to case-by-case and category prohibitions.




       39-194 O—80—pt. 3    42 : QL3

92 STAT. 3290 PUBLIC LAW 95-620—NOV. 9, 1978 TITLE III—EXISTING FACILITIES—Continued , SUBTITLE B—^EXEMPTIONS Sec. 311. Temporary exemptions. Sec. 312. Permanent exemptions. Sec. 313. General requirements for exemptions. Sec. 314. Terms and conditions; compliance plans. T I T L E IV—ADDITIONAL P R O H I B I T I O N S ; EMERGENCY AUTHORITIES Sec, 401. Authority to prohibit use of natural gas in certain boilers used for space heating. Sec. 402. Prohibition on use of natural gas for decorative outdoor lighting. Sec. 403. Conservation in Federal facilities, contracts, and financial assistance programs. Sec. 404. Emergency authorities. Sec. 405. Authority to restrict increased use of petroleum by existing power- plants. T I T L E V—SYSTEM COMPLIANCE OPTION Sec. 501. Electric utility system compliance option. ; \ T I T L E VI—FINANCIAL ASSISTANCE Sec. 601. Assistance to areas impacted by increased coal or uranium production. ... ; ', Sec. 602. Loans to assist powerplant acquisitions of air pollution control equip- ment. T I T L E VII—ADMINISTRATION AND ENFORCEMENT SUBTITLE A—PEOCEDUEES Sec. 701. Administrative procedures. Sec. 702. Judicial review. -'- SUBTITLE B—INFORMATION AND REPOETINQ Sec. 711. Information. Sec. 712. Compliance reports. StTBTITLE O — E N F O E O E M E N T Sec. 721. Notice of violation; other general provisions. ' ' Sec. 722. Criminal penalties. Sec. 723. Civil penalties. Sec. 724. Injunctions and other equitable relief. Sec. 725. Citizen suits. SUBTTTLB D — P B E S E B V A T I O N OF OONTEAOTXTAL BlOHTS See. 731. Preservation of contractual rights. SUBTITLE E — S T U D I E S Sec. 741. National coal policy study. Sec. 742. Coal industry i>erformance and competition study. Sec. 743. Impact on employees. Sec. 744. Study of compliance problems of small electric utility systems. Sec. 745. Emissions monitoring. Sec. 746. Socioeconomic impacts of increased coal production and other energy development. Sec. 747. Use of petroleum and natural gas In combustors. SUBTITLE F—^APPEOPEIATIONS AUTHOBIZATION Sec. 751. Authorization of appropriations. SUBTITLE G—COOEDINATION W I T H OTHER PEOVISIONS OP L A W Sec. 761. Effect on environmental requirements. Sec. 762. Effect of orders under section 2 of ESEOA; amendments to ESEOA. Sec. 763. Environmental impact statements under NEPA.
PUBLIC LAW 95-620—NOV. 9, 1978 92 STAT. 3291 T I T L E VIII—MISCELTiANEOUS PROVISIONS Sec. 801. Coal reserves disclosure. Sec. 802. Goal preparation facilities. Sec. 803. Railroad rehabilitation for carriage of coal. Sec. 804. Office of Rail Public Counsel. Sec. 805. Retroactive application of certain remedial orders. Sec. 806. Annual report. Sec. 807. Submission of rejwrts. TITLE IX—EFFECTIVE DATES Sec. 901. Effective date. Sec. 902. Interim petition and consideration for certain exemptions. SEC. 102. FINDINGS; STATEMENT OF PURPOSES. (a) FINDINGS.—The Congress finds that— 42 USC 8301. (1) the protection of public health and welfare, tlie preserva- tion of national security, and the regulation of interstate com- merce require the establishment of a program for the expended use, consistent with applicable environmental requirements, of coal and other alternate fuels as p r i m a r y energy sources for exist- - ing and new electric powerplants and major fuel-burning installa- tions; and (2) the purposes of this Act are furthered in cases in which coal or other alternate fuels are used by electric powerplants and major fuel-burning installations, consistent with applicable environmental requirements, as p r i m a r y energy sources in lieu of natural gas or petroleum. (b) STATEMENT or PURPOSES.—The purpose of this Act, which shall be carried out in a manner consistent with applicable environmental requirements, are— (1) to reduce the importation of petroleum and increase t h e Nation's capability to use indigenous energy resources of the United States to the extent such reduction and use further the " goal of national energy self-sufficiency and otherwise are in the best interests of the United States; (2) to conserve natural gas and petroleum for uses, other t h a n electric utility or other industrial or commercial generation of steam or electricity, for which there are no feasible alternative fuels or raw material substitutes; (3) to encourage and foster the greater use of coal and other • alternate fuels, in lieu of natural gas and petroleum, as a p r i m a r y energy source; (4) to the extent permitted by this Act, to encourage the use of synthetic gas derived from coal or other alternate fuels; (5) to encourage the rehabilitation and u p g r a d i n g of railroad service and equipment necessary to transport coal to regions or States which can use coal in greater quantities; (6) to prohibit or, as appropriate, minimize the use of natural gas and petroleum as a primary energy source and to conserve *' such gas and petroleum for the benefit of present and future generations; (7) to encourage the modernization or replacement of existing and new electric powerplants and major fuel-burning installations which utilize natural gas or petroleum as a p r i m a r y energy source and which cannot utilize coal or other alternate fuels where to do so furthers the conservation of natural gas and petroleum; (8) to require t h a t existing and new electric powerplants and ' ' major fuel-burning installations which utilize natural gas, petro-
92 STAT. 3292 PUBLIC LAW 95-620—NOV. 9, 1978 leum, or coal or other alternate fuels pursuant to this Act comply with applicable environmental requirements; (9) to insure that all Federal agencies utilize their authorities fully in furtherance of the purposes of this Act by carrying out programs designed to prohibit or discourage the use of natural gas and petroleum as a primary energy source and by taking such actions as lie within their authorities to maximize the efficient use of energy and conserve natural gas and petroleum in programs funded or carried out by such agencies; (10) to insure that adequate supplies of natural gas are avail- able for essential agricultural uses (including crop drying, seed drying, irrigation, fertilizer production, and production of essen- '* tial fertilizer ingredients for such uses); (11) to reduce the vulnerability of the United States to energy supply interruptions; and (12) to regulate interstate commerce. * SEC. 103. DEFINITIONS. 42 use 8302. (a) Unless otherwise expressly provided, for the purposes of this Act— (1) The term "Secretary" means the Secretary of Energy. (2) The term, "person" means any (A) individual, corporation, company, partnership, association, firm, institution, society, trust, joint venture, or joint stock company, (B) any State, the District of Columbia, Puerto Rico, and any territory or possession of the United States, or (C) any agency or instrumentality (including any municipality) thereof. (3) (A) Except as provided in subparagraph (B), the term "natural gas" means any fuel consisting in whole or in part of— (i) natural gas; (ii) liquid petroleum ^as; (iii) synthetic gas derived from petroleum or natural gas liquids; or (iv) any mixture of natural gas and synthetic gas. (B) The term "natural gas" does not include— (i) natural gas which is commercially unmarketable (either by reason of quality or quantity), as determined under rules prescribed by the Secretary; (ii) natural gas produced by the user from a well the maximum efficient production rate of which is less than 250 million Btu's per day; (iii) natural gas to the extent the exclusion of such gas is provided for in subsection ( b ) ; or (iv) synthetic gas, derived from coal or other alternate fuel, the heat content of which is less than 600 Btu's per cubic foot at 14.73 pounds per square inch (absolute) and 60 degrees Fahrenheit. (4) The term "petroleum" means crude oil and products derived from crude oil, other than— (A) synthetic gas derived from crude oil; (B) liquid petroleum gas; (C) liquid, solid, or gaseous waste byproducts of refinery , operations which are commercially unmarketable, either by reason of quality or quantity, as determined under rules pre- scribed by the Secretary; or (D) petroleum coke or waste gases from industrial opera- tions.
PUBLIC LAW 95-620—NOV. 9, 1978 92 STAT. 3293 (6) The term "coal" means anthracite and bituminous coal, lignite, and any fuel derivative thereof. (6) The term "alternate fuel" means electricity or any fuel, other than natural gas or petroleum, and includes— (A) petroleum coke, shale oil, uranium, biomass, and mu- nicipal, industrial, or agricultural wastes, wood, and renew- able and geothermal energy sources; (B) liquid, solid, or gaseous waste byproducts of refinery or industrial operations which are commercially unmarket- able, either by reason of quality or quantity, as determined under rules prescribed by the Secretary; and (C) waste gases from industrial operations. (7) (A) The terms "electric powerplant" and "powerplant" mean any stationary electric generating unit, consisting of a boiler, a gas turbine, or a combined cycle unit, which produces electric power for purposes of sale or exchange and— (i) has the design capability of consuming any fuel (or mixture thereof) at a fuel heat input rate of 100 million Btu's per hour or greater; or (ii) is in a combination of two or more electric generating units which are located at the same site and which in the aggregate have a design capability of consuming any fuel (or mixture thereof) at a fuel heat input rate of 250 million Btu's per hour or greater. (B) For purposes of subparagraph (A), the term "electric generating unit" does not include— (i) any electric generating unit subject to the licensing jurisdiction of the Nuclear Regulatory Commission; and (ii) any cogeneration facility, less than half of the annual electric power generation of which is sold or exchanged for resale, as determined by the Secretary, (C) For purposes of clause (ii) of subparagraph (A), there shall be excluded any unit which has a design capability to con- sume any fuel (including any mixture thereof) that does not equal or exceed 100 million Btu's per hour and the exclusion of which for purposes of such clause is determined by the Secretary, by rule, to be appropriate. (8) The term "new electric powerplant" means— (A) any electric powerplant for which construction or acquisition began on a date on or after the date of enactment of this Act; and (B) any electric powerplant for which construction or acquisition began on a date after April 20, 1977, and before the date of the enactment of this Act, unless the Secretary finds the construction or acquisition of such powerplant could not be canceled, rescheduled, or modified to comply with the applicable requirements of this Act without— (i) adversely affecting electric system reliability (as determined by the Secretary after consultation with the Federal Energy Regulatory Commission and the appro- priate State authority), or (ii) imposing substantial financial penalty (as deter- mined under rules prescribed by the Secretary). (9) (A) The term "existing electric powerplant" means any electric powerplant other than a new electric powerplant.
92 STAT. 3294 PUBLIC LAW 95-620—NOV. 9, 1978 (B) Any powerplant treated under this Act as an existing elec- tric powerplant shall not be treated thereafter as a new electric powerplant merely by reason of a transfer of ownership. (10) (A) The terms "major fuel-burning installation" and "installation" means a stationary unit consisting of a boiler, gas turbine unit, combined cycle unit, or internal combustion engine which— (i) has a design capability of consuming any fuel (or mix- ture thereof) at a fuel heat input rate of 100 million Btu's per hour or greater; or (ii) is in a combination of two or more such units which are located at the same site and which in the aggregate have a design capability of consuming any fuel (or mixture thereof) at a fuel heat input rate of 250 million Btu's per hour or greater. (B) The terms "major fuel-burning installation" and "installa- tion" do not include— (i) any electric powerplant; or (ii) any pump or compressor used solely in connection with the production, gathering, transmission, storage, or distribu- tion of gases or liquids, but only if there is certification to the Secretary of such use (in accordance with rules prescribed by the Secretary). (C) For purposes of clause (ii) of subparagraph (A), there shall be excluded any unit which has a design capability to con- sume any fuel (including any mixture thereof) that does not equal or exceed 100 million Btu's per hour and the exclusion of which for purposes of such clause is determined by the Secretary, by rule, to be appropriate. (11) The term "new major fuel-burning installation" means— (A) any major fuel-burning installation on which con- struction or acquisition began on a date on or after the date of the enactment of this Act; and (B) any major fuel-burning installation on which con- struction or acquisition began on a date after April 20, 1977, and before the date of the enactment of this Act, unless the Secretary finds the construction or acquisition of such installation could not be canceled, rescheduled, or modified to comply with applicable requirements of this Act without— (i) incurring significant operational detriment of the unit (as determined by the Secretary); or (ii) imposing substantial financial penalty (as deter- mined under rules prescribed by the Secretary). (12) (A) The term "existing major fuel-burning installation" means any installation which is not a new major fuel-burning installation. (B) Such term does not include a major fuel-burning installa- tion for the extraction of mineral resources located— (i) on or above the Continental Shelf of the United States, or (ii) on wetlands areas adjacent to the Continental Shelf of the United States, where coal storage is not practicable or would produce adverse effects on environmental quality. (C) Any installation treated as an existing major fuel-burning installation shall not be treated thereafter as a new major fuel- burning installation merely by reason of a transfer of ownership.
PUBLIC LAW 95-620—NOV. 9, 1978 92 STAT. 3295 (13) The term "construction or acquisition began" means, when used with reference to a certain date, that— (A) construction in accordance with final drawings or equivalent design documents (as defined by the Secretary, by rule) began on or after that date; or (B) (i) construction or acquisition had been contracted for on or after that date, or (ii) if the construction or acquisition had been contracted for before such date, such construction or acquisition could be canceled, rescheduled, or modified to comply with the applicable requirements of this Act— (I) without imposing substantial financial penalty, as determined under rules prescribed by the Secretary; (II) in the case of a powerplant, without adversely affecting electric system reliability (as determined by the Secretary after consultation with the Federal Energy Regulatory Commission and the appropriate State authority); or ( I I I ) in the case of a major fuel-burning installation, without incurring significant operational detriment of the unit (as determined by the Secretary). (14) The term "construction" means substantial onsite con- struction or reconstruction, as defined by rule by the Secretary. (15) The term "primary energy source" means the fuel or fuels used by any existing or new electric powerplant or major fuel- burning installation, except it does not include, as determined under rules prescribed by the Secretary— (A) the minimum amounts of fuel required for unit ignition, startup, testing, flame stabilization, and control uses, and (B) the minimum amounts of fuel required to alleviate or prevent (i) unanticipated equipment outages and (ii) emergencies directly affecting the public health, safety, or welfare which would result from electric power outages. (16) The term "site limitation" means, when used with respect to any powerplant or installation, any specific physical limita- tion associated with a particular site which relates to the use of coal or other alternate fuels as a primary energy source for such powerplant or installation, such as— (A^ inaccessibility to coal or other alternate fuels; (B) lack of transportation facilities for coal or other alter- nate fuels; (C) lack of adequate land or facilities for the handling, use, and storage of coal or other alternate fuels; (D) lack of adequate land or facilities for the control or disposal of wastes from such powerplant or installation, including lack of pollution control equipment or devices necessary to assure compliance with applicable environmental requirements; and (E) lack of an adequate and reliable supply of water, including water for use in compliance with applicable environmental requirements. (17) The term "applicable environmental requirements" includes— (A) any standard, limitation, or other requirement estab- lished by or pursuant to Federal or State law (including any final order of any Federal or State court) applicable to emis-
92 STAT. 3296 PUBLIC LAW 95-620—NOV. 9, 1978 sions of environmental pollutants (including air and water pollutants) or disposal of solid waste residues resulting from the use of coal or other alternate fuels or natural gas or petro- leum as a primary energy source or from the operation of pollution control equipment in connection with such use, tak- ing into account any variance of law granted or issued in accordance with Federal law or in accordance with State law to the extent consistent with Federal law; and (B) any other standard, limitation, or other requirement 42 u s e 7401 established by, or pursuant to, the Clean Air Act, the Federal note. Water Pollution Control Act, the Solid Waste Disposal Act, 33 u s e 1251 or the National Environmental Policy Act of 1969. note. (18) (A) The term "peakload powerplant" means a powerplant 42 u s e 6901 the electrical generation of which in kilowatt hours does not note. 42 u s e 4321 exceed, for any 12-calendar-month period, such powerplant's note. design capacity multiplied by 1,500 hours. (B) The term "intermediate load powerplant" means a power- plant (other than a peakload powerplant), the electrical genera- tion of which in kilowatt hours does not exceed, for any 12-calen- dar-month period, such powerplant's design capacity multiplied by 3,500 hours. (C) The term "base load powerplant" means a powerplant the electrical generation of which in kilowatt hours exceeds, for any 12-calendar-month period, such powerplant's design capacity multiplied by 3,500 hours. Rules. (D) Not later than 90 days after the date of the enactment of this Act, the Federal Energy Regulatory Commission shall pre- scribe rules under which a powerplant's design capacity may be determined for purposes of this paragraph. (19) the term "cogeneration facility" means an electric power- plant or a major fuel-burning installation which produces— (A) electric power; and (B) any other form of useful energy (such as steam, gas, or heat) which is, or will be, used for industrial, commercial, or space heating purposes. (20) The term "cost", unless the context indicates otherwise, means total costs (both operating and capital) incurred over the estimated remaining useful life of an electric powerplant or major fuel-burning installation, discounted to present value, as deter- mined by the Secretary (in the case of powerplants, in consulta- tion with the State regulatory authorities). In the case of an electric powerplant, such costs shall take into account any change required in the use of existing electric powerplants in the relevant dispatching system and other economic factors which are included in planning for the production, transmission, and distribution of electric power within such system. (21) The term "State regulatory authority" means any State agency which has ratemaking authority with respect to the sale of electricity by anv State r e f l a t e d electric utility. (22) The term "air pollution control agency" has the same meaning as given such term by section 302(b) of the Clean Air 42 u s e 7602. Act. (23) The term "electric utility" means any person, including any affiliate, or Federal agency which sells electric power. (24) The term "affiliate", when used in relation to a person, means another person which controls, is controlled by, or is under common control with, such person.
PUBLIC LAW 95-620—NOV. 9, 1978 92 STAT. 3297 (25) The term "Federal agency" means each authority of the Government of the United States, whether or not it is within or subject to review by another agency, but does not include— (A) the Congress; (B) the courts of the United States; (C) the governments of the territories or possessions of the United States; and (D) the government of the District of Columbia. . « (26) The term "Btu" means British thermal unit. (27) the term "Mcf" means, when used in relation to natural gas, 1,000 cubic feet of natural gas. (28) The term "mixture", when used in relation to fuels used in a unit, means a mixture of such fuels or a combination of such fuels used simultaneously or alternately in such unit. (29) The term "fluidized bed combustion" means combustion of fuel in connection with a bed of inert material, such as limestone or dolomite, which is held in a fluid-like state by the means of air or other gases being passed through such materials. (b) SPECIAL RULES RELATING TO DEFINITIONS or NATURAL GAS AND ALTERNATE F U ^ L . — (1) Subject to paragraph (2), natural gas which is to be used by a powerplant or major fuel-burning installation shall, for purposes of this Act (other than this subsection), be excluded from the definition of "natural gas" under subsection (a) (3) (B) (iii) and shall be included within the definition of "alternate fuel" under subsection (a) (6) if the person proposing to use such natural gas certi- fies to the Secretary (together with such supporting documents as the Secretary may require) that— (A) such person owns, or is entitled to receive, at the point of manufacture, synthetic gas derived from coal or another alternate fuel; (B) the Btu content of such synthetic gas is equal to, or greater than, the Btu content of the natural gas to be covered by this sub- section by reason of such certification, plus the approximate Btu content of any natural gas consumed or lost in transportation; (C) such person delivers, or arranges for the delivery of, such synthetic gas to a pipeline or pipelines which by transport or dis- placement are capable of delivering such synthetic gas, mixed with natural gas, to such person; and (D) all necessary permits, licenses, or approvals from appropri- ate Federal, State, and local agencies (including Indian tribes) have been obtained for construction and operation of the facilities for the manufacture of the synthetic gas involved, except that for purposes of the prohibition under section 201(2) against power- plants being constructed without the capability of using coal or another alternate fuel, only permits, licenses, and approvals for the construction of such synthetic gas facilities shall be required under this subparagraph to be certified and documented. (2) The application of paragraph (1) with respect to the use of Report, submittal natural gas by any powerplant or major-fuel burning installation ^ Secretary, shall be conditioned on the person using such natural gas submitting to the Secretary a report not later than one year after certification is made under paragraph (1), and annually thereafter, containing the following information : (A) the source, amount, quality, and point of delivery to the pipeline of the synthetic gas to which paragraph (1) applied during the annual period ending with the calendar month preced- ing the date of such report; and
92 STAT. 3298 PUBLIC LAW 95-620—NOV. 9, 1 9 7 8 ( B ) t h e amount, quality, and point of delivery by the pipeline to such person of the n a t u r a l gas covered by p a r a g r a p h (1) which is used by the person during such annual period. (3) I n the case of any boiler subject to a prohibition under section Post, p. 3314. 401, t h e preceding provisions of this subsection shall apply with respect to such boiler to the same extent and in the same manner as they apply in the case of major fuel-burning installations. "Pipeline". (4) F o r purposes of this subsection, the term "pipeline" means any interstate or intrastate pipeline or local distribution company, SEC. 104. TERRITORIAL APPLICATION. 42 u s e 8303. T h e provisions of this Act shall apply in all the States, P u e r t o Rico, and the territories and possessions of the United States, except that— (1) t h e provisions of titles I I and I I I (other than section 301) shall only apply t o powerplants and installations situated within the contiguous 48 States, Alaska, a n d t h e District of Columbia; and (2) t h e provisions of section 301 shall only apply t o power- plants situated within t h e contiguous 48 States a n d t h e District of Columbia. TITLE II—NEW FACILITIES Subtitle A—Prohibitions SEC. 201. NEW ELECTRIC POWERPLANTS. 42 u s e 8311. Except to such extent as may be authorized under subtitle B — (1) natural gas or petroleum shall not be used as a p r i m a r y energy source in any new electric powerplant; and (2) no new electric powerplant may be constructed without the capability to use coal or any other alternate fuel as a p r i m a r y energy source. SEC. 202. NEW MAJOR FUEL-BURNING INSTALLATIONS. 42 u s e 8312. ( a ) GENERAL P R O H I B I T I O N . — E x c e p t t o such extent as m a y be author- ized under subtitle B , n a t u r a l gas or petroleum shall not be used as a p r i m a r y energy source i n a new major fuel-burning installation con- sisting of a boiler. (b) A U T H O R I T Y OF SECRETARY TO P R O H I B I T NONBOILERS F R O M U S I N G NATURAL G A S OR P E T R O L E U M . — (1) T h e Secretary m a y , by rule, p r e - scribe categories (identified in such rules) of new major fuel-burning installations, other t h a n boilers, in which natural g a s or petroleum, or both, shall be prohibited from being used as a p r i m a r y energy source. I n identifying categories of new major fuel-burning installa- tions pursuant to this p a r a g r a p h , the Secretary shall take into account any special circumstances or characteristics of each category of such installations (such as the technical feasibility of b u r n i n g coal or other alternate fuels a n d t h e size or geographic location of such installa- Final rule, tions). T h e application of any such final rule in the case of any new application. major fuel-buming installation subject t o such rule shall be stayed pending a resolution (including judicial review) of any petition for an exemption for such installation which is filed with the Secretary not later than 60 days after such final rule is published under section Post, p. 3331. 7 0 2 ( a ) . A n y such final rule shall not apply in the case of any installa- tion with respect t o which a comparable prohibition was issued by order (or was proposed but was not issued because it was demonstrated t h a t it could qualify for an exemption under subtitle B ) .
PUBLIC LAW 95-620—NOV. 9, 1978 92 STAT. 3299 (2) (A) The Secretary may, by order, prohibit the use of natural gas or petroleum, or both, as a primary energy source in any new major fuel-burning installation, other than a boiler, if such installation is not, at the time of the issuance of the proposed order, in a category identi- fied in a final rule issued under paragraph (1). (B) Subject to subpragraph (C), the Secretary shall not issue a final order under this paragraph with respect to any installation if it is demonstrated that there would have been granted an exemption for such installation if such prohibition had been established by rule pursuant to paragraph (1) rather than by order pursuant to this para- graph, except that if a temporary exemption would have been granted, such a final order may be issued but may not take effect until such time as such temporary exemption would have terminated. (C) In any case in which an order is not issued by reason of sub- paragraph (B) or in which the effective date of such order is delayed under subparagraph (B), the Secretary shall take such steps as may be necessary to assure the installation involved complies with the same requirements (including provisions of section 214(a)) as would have been applicable if an exemption had been granted based upon the grounds for which the order is not issued or the effective date of which is delayed. (3) A prohibition under this subsection shall only apply with Applicability, respect to an installation for which construction or acquisition began on or after the date of the publication under section 701(b) of the ^o*'- P- 3329. proposed rule or order establishing the prohibition. Any installation not subject to such a prohibition because of the preceding sentence shall be considered an existing major fuel-burning installation for purposes of title I I I . Subtitle B—Exemptions SEC. 211. TEMPORARY EXEMPTIONS. (a) GENERAL EXEMPTION DUE TO LACK OF ALTERNATE FUEL SUPPLY, "^2 USC 8321. SITE LIMITATIONS, OR ENVIRONMENTAL REQUIREMENTS.—After con- sideration of a petition (and comments thereon) for an exemption for a powerplant or installation from one or more of the prohibitions of subtitle A, the Secretary shall, by order, grant an exemption under this '" subsection for the use of natural gas or petroleum, if he finds that the petitioner has demonstrated that for the period of the proposed exemption, despite diligent good faith efforts— (1) it is likely that an adequate and reliable supply of coal or other alternate fuel of the quality necessary to conform with design and operational requirements for use as a primary energy source will not be available to such powerplant or installation at a cost (taking into account associated facilities for the trans- portation and use of such fuel) which, based upon the best prac- ticable estimates, does not substantially exceed the cost, as determined by rule by the Secretary, of using imported petroleum as a primary energy source; (2) one or more site limitations exist which would ot permit the location or operation of such a powerplant or installation using coal or any other alternate fuel as a primary energy source; or (3) the prohibitions of section 201 or 202 could not be satisfied without violating applicable environmental requirements.
92 STAT. 3300 PUBLIC LAW 9 5 - 6 2 0 — N O V . 9, 1 9 7 8 ( b ) TEMPORARY E X E M P T I O N BASED U P O N F U T U R E U S E OF S Y N T H E T I C FUELS.—^After consideration of a petition ( a n d comments thereon) for -^ a n exemption for a powerplant or installation from one or more of t h e prohibitions of subtitle A , t h e Secretary shall, b y order, g r a n t a n exemption under this subsection for t h e use of n a t u r a l g a s or petro- leum, if he finds t h a t t h e petitioner h a s demonstrated that— (1) t h e petitioner will comply with t h e prohibitions of subtitle A by t h e end of the proposed exemption by t h e use of a synthetic fuel derived from coal or another alternate fuel; a n d (2) t h e petitioner is not able to comply with such prohibitions by t h e use of such synthetic fuel until t h e end of t h e proposed exemption. Compliance plan. T h e effectiveness of a n exemption under this subsection is conditioned filing and Q^ f^j^Q petitioner filing a n d maintaining a compliance plan meeting maintenance. ^j^^ requirements of section 2 1 4 ( b ) . (c) TEMPORARY P U B L I C INTEREST E X E M P T I O N . — A f t e r consideration of a petition ( a n d comments thereon) for an exemption for a power- p l a n t or installation from one or more of the prohibitions of subtitle A, t h e Secretary m a y , by order, g r a n t an exemption under this sub- section for the use of n a t u r a l g a s or petroleum, if he finds t h a t t h e petitioner h a s demonstrated t h a t for the period of t h e proposed exemp- tion t h e issuance of such exemption would be in t h e public interest and would be consistent with t h e purposes of this Act. ( d ) TEMPORARY E X E M P T I O N FOR T H E I"^SE OF PETROLEUM BY CERTAIN INSTALLATIONS.—After consideration of a petition ( a n d comments thereon) for an exemption from t h e prohibition of t h e use of petro- leum under section 202 for an installation with a design capacity of consuming any fuel (or any mixture thereof) a t a fuel heat input rate which does n o t exceed 300 million Btu's p e r hour, t h e Secretary may, by order, g r a n t an exemption under this subsection for t h e use of petroleum if h e finds that t h e petitioner has demonstrated, by the exist- ence of binding contracts o r other evidence, including a p p r o p r i a t e State construction permits, t h a t he will use coal or another alternate fuel for at least 75 percent of the annual fuel heat input r a t e up'>n t h e expiration of such exemption. F o r provisions relating t o authority to receive, consider a n d g r a n t i n g (or denying) certain petitons for an Post, p. 3349. exemption under this subsection, see section 9 0 2 ( b ) . (e) DURATION OF TEMPORARY E X E M P T I O N S . — ( 1 ) E x c e p t as provided in p a r a g r a p h ( 2 ) , exemptions under this section for a n y powerplant or installation m a y n o t exceed, t a k i n g into account any extension or renewal, 6 years. (2) ( A ) A n exemption under subsection ( a ) (1) m a y be granted for a period of more t h a n 5 years, b u t may n o t exceed, t a k i n g into account any extension or renewal, 10 years, ( B ) A n exemption under subsection (b) m a y be extended beyond t h e 5-year limit u n d e r p a r a g r a p h (1), b u t such exemption, so extended, may not exceed 10 years. (3) I f an exemption is granted for any powerplant or installation before t h e powerplant or installation is placed in service, t h e period before it is placed in service shall not be taken into account in com- p u t i n g t h e 5-year a n d t h e 10-year limitations of p a r a g r a p h s (1) a n d (2)- SEC. 212. PERMANENT EXEMPTIONS. 42 u s e 8322. ^^^ P E R M A N E N T E X E M P T I O N D U E TO L A C K OF ALTERNATE F U E L S U P - PLY, S I T E LIMITATIONS, ENVIRONMENTAL REQUIREMENTS, OR ADEQUATE CAPITAL.—(1) After consideration of a petition ( a n d comments there-
PUBLIC LAW 95-620—NOV. 9, 1978 92 STAT. 3301 on) for an exemption for a powerplant or installation from one or more of the prohibitions of subtitle A, the Secretary shall, by order, grant a permanent exemption under this subsection with respect to natural gas or petroleum, if he finds that the petitioner has demon- strated that despite diligent good faith efforts— (A) it is likely that an adequate and reliable supply of coal or other alternate fuel of the quality necessary to conform with design and operational requirements for use as a primary energy source (i) will not be available within the first 10 years of the useful life of the powerplant or installation, or (ii) will not be available at a cost (taking into account associated facilities for the transpor- tation and use of such fuel) which, based upon the best practicable estimates, does not substantially exceed the cost, as determined by rule by the Secretary, of using imported petroleum as a primary energy source during the useful life of the powerplant or instal- lation involved; (B) one or more site limitations exist which would not permit the location or operation of such powerplant or installation using coal or any other alternate fuel as a primary energy source; (C) the prohibitions of subtitle A could not be satisfied with- out violating applicable environmental requirements; or (D) the required use of coal or any other alternate fuel would not allow the petitioner to obtain adequate capital for the financ- ing of such powerplant or installation. (2) The demonstration required to be made by a petitioner under paragraph (1) shall— (A) m the case of a new major fuel-burning installation, be made with respect to the site of such installation proposed by the petitioner; and (B) in the case of a new electric powerplant, be made with respect to the site of such powerplant and reasonable alternative sites. (3) Notwithstanding the preceding provisions of this subsection. Limitation, a powerplant which has been granted an exemption under subsection (h^ may not be granted an exemption under this subsection. (b) PERMANENT EXEMPTION DUE TO CERTAIN STATE OR LOCAL REQUIREMENTS.—After consideration of a petition (and comments thereon) for an exemption for a powerplant or installation from one or more of the prohibitions of subtitle A, the Secretary may, by order, grant a permanent exemption under this subsection with respect to natural gas or petroleum, if he finds that the petitioner has demon- strated that— (1) with respect to the proposed site of the powerplant or installation, the construction or operation of such a facility using coal or any other alternate fuel is infeasible because of a State or local requirement (other than a building code or a nuisance or zoning law); (2) in the case of a powerplant, there is no reasonable alterna- tive site for such powerplant which meets the criteria set forth in subsection (a) (1) (A) through ( D ) ; and (3) the granting of the exemption would be in the public inter- est and would be consistent with the purposes of this Act. (c) PERMANENT EXEMPTION FOR COGENERATION.—^After considera- tion of a petition (and comments thereon) for an exemption from one or more of the prohibitions of subtitle A for a cogeneration facility,
92 STAT. 3302 PUBLIC LAW 95-620—NOV. 9, 1 9 7 8 the Secretary may, by order, g r a n t a permanent exemption under this subsection with respect to natural gas or petroleum, if he— (1) finds t h a t t h e petitioner h a s demonstrated t h a t economic and other benefits of cogeneration are unobtainable unless petro- leum or n a t u r a l gas, or both, are used in such facility, a n d (2) includes in t h e final order a statement of the basis for such finding. ( d ) P E R M A N E N T E X E M P T I O N FOR CERTAIN MIXTURES CONTAINING NATURAL G A S OR P E T R O L E U M . — ( 1 ) A f t e r consideration of a petition (and comments thereon) for an exemption for a powerplant or installa- tion from one or more of the prohibitions of subtitle A, the Secretary shall, by order, g r a n t a permanent exemption under this subsection with respect t o natural gas or petroleum, if he finds t h a t t h e petitioner has demonstrated that— ( A ) t h e powerplant or installation uses, or proposes t o use, a mixture of petroleum or natural gas and coal or another alternate fuel as a primary energy source; and ( B ) t h e amount of t h e petroleum or natural gas used in such mixture will not exceed the minimum percentage of the total Btu heat input of the primary energy sources of such powerplant or installation needed to maintain reliability of operation of such powerplant or installation consistent with maintaining a reason- able level of fuel efficiency, as detennined in accordance with rules prescribed by the Secretary. j^'^^^i!*^^!- determination. (^) ^^ ^^^ ^^^® ®^ ^ ^^^^ major fuel-burning installation, t h e per- centage determined by the Secretary imder s u b p a r a g r a p h ( B ) of p a r a g r a p h (1) shall not be less than 25 percent. (e) P E R M A N E N T E X E M P T I O N FOR EMERGENCY PURPOSES.—After con- sideration of a petition ( a n d comments thereon) for a n exemption from one or more of t h e prohibitions of subtitle A for a powerplant or installation, the Secretary shall, by order, g r a n t a permanent exemp- tion under this subsection with respect t o natural g a s or petroleum, if he finds t h a t the petitioner has demonstrated t h a t such powerplant or installation will be maintained a n d operated only for emergency purposes (as defined by rule by the Secretary). (f) P E R M A N E N T E X E M P T I O N FOR POWERPLANTS NECESSARY T o M A I N - TAIN RELIABILITY OF SERVICE.—After consideration of a petition (and comments thereon) for an exemption for a powerplant from one or more of the prohibitions of subtitle A, t h e Secretary may, by order, g r a n t a permanent exemption under this subsection with respect to natural gas or petroleum if he finds that t h e petitioner has demon- strated that— (1) such exemption is necessary to prevent impairment of reli- ability of service, and (2) t h e petitioner, despite diligent good faith efforts, is not able to make the demonstration necessary to obtain an exemption under subsection ( a ) or (b) in the time required to prevent such impairment of service. ( g ) P E R M A N E N T E X E M P I I O N FOR PEAKLOAD POWERPLANTS.—After consideration of a petition (and comments thereon) for an exemption for a powerplant— (1) in t h e case of a proposed use of petroleum, t h e Secretary shall, by order, g r a n t a permanent exemption under this sub- section with respect to petroleum if t h e petitioner certifies t h a t such powerplant is t o be operated solely as a peakload power- p l a n t ; and
PUBLIC LAW 95-620—NOV. 9, 1978 92 STAT. 3303 (2) in the case of a proposed use of natural gas, the Secretary shall, by order, grant a permanent exemption under this sub- section with respect to natural gas if— (A) the Administrator of the Environmental Protection Agency (or the appropriate State air pollution control agency) certifies to the Secretary that the use by such power- plant of coal or any available alternate fuel as a primary energy source will cause or contribute to a concentration, in an air quality control region or any area within such region, of a pollutant for which any national ambient air quality stand- ard is or would be exceeded; and (B) the petitioner certifies that such powerplant is to be operated solely as a peakload powerplant. (h) PERMANENT EXEMPTION FOR INTERMEDIATE LOAD POWER- PLANTS.— (1) After consideration of a petition (and comments there- -; - on) for an exemption from one or more of the prohibitions of subtitle A on the use of petroleum by a powerplant, the Secretary may grant a permanent exemption under this subsection for such use, by order, if he finds that the petitioner has demonstrated that— (A) the Administrator of the Environmental Protection Agency (or the appropriate State air pollution control agency) certifies to the Secretary that the use by such powerplant of coal or any available alternate fuel as a primary energy source will cause or contribute to a concentration, in an air quality control region or any area within such region, of a pollutant for which any national ambient air quality standard is or would be exceeded; (B) such powerplant is to be constructed and operated only to replace no more than the equivalent capacity of existing electric powerplants— (i) which use natural gas or petroleum as a primary source, (ii) which are owned by the same person who is to operate such powerplant, and (iii) which, if they used coal as a primary energy source, would cause or contribute to such a concentration in such area; (C) such powerplant is to be operated solely as an intermediate load powerplant; (D) the net heat input rate for such powerplant will be main- tained at or less than 9,500 Btu's per kilowatt hour throughout the useful life of the powerplant; (E) there is no reasonable alternative site for such powerplant which meets the criteria set forth in subsection (a)(1) (A) through ( D ) ; and (F) the powerplant is to be constructed with the capability to use a synthetic fuel derived from coal or other alternate fuel. (2) The Secretary shall, from time to time, review each exemption Review, granted to a powerplant under this subsection, and shall terminate such exemption When he finds that there is available a supply of syn- thetic fuel derived from coal or other alternate fuel suitable for use as a primary energy source by such powerplant. (i) PERMANENT EXEMPTIONS FOR INSTALLATIONS BASED UPON PROD- UCT OR PROCESS REQUIREMENTS.—After consideration of a petition (and comments thereon) for an exemption for an installation from ' ' one or more of the prohibitions of subtitle A, the Secretary shall, by order, grant a permanent exemption under this subsection with respect to natural gas or petroleum, if he finds that the petitioner has demon- strated that—
92 STAT. 3304 PUBLIC LAW 95-620—NOV. 9, 1978 (1) the use of coal or another alternate fuel is n o t technically feasible due t o t h e necessity to maintain satisfactory control of product quality; a n d (2) substitution of steam is not technically feasible due to process requirements. ( i ) P E R M A N E N T E X E M P T I O N FOR INTALLATIONS NECESSARY T o M E E T SCHEDULED E Q U I P M E N T OUTAGES.—After consideration of a petition (and comments thereon) for any exemption from one or more of the prohibitions of subtitle A for an installation, the Secretary may, by order, g r a n t a permanent exemption u n d e r t h i s subsection if lie finds t h a t t h e petitioner h a s demonstrated t h a t such exemption is necessary to meet scheduled equipment outages (as defined by t h e Secretary by rule). SEC. 213. GENERAL REQUIREMENTS FOR EXEMPTIONS. 42 u s e 8323. (a) U S E OF MIXTURES OR FLUIDIZED B E D COMBUSTION N O T F E A S I - BLE.—Except in t h e case of an exemption under section 212 ( d ) or ( g ) , the Secretary m a y g r a n t a permanent exemption for a powerplant or installation under this subtitle only— (1) if t h e applicant h a s demonstrated t h a t t h e use of a m i x t u r e of n a t u r a l gas or petroleum a n d coal or another alternate fuel, for which an exemption under section 212(d) would be available, is not economically or technically feasible; a n d (2) if the Secretary has not made a finding t h a t t h e use of a method of fluidized bed combustion of coal or another alternate fuel is economically a n d technically feasible. (b) STATE APPROVAL REQUIRED FOR P O W E R P L A N T . — I f t h e appro- priate State regulatory authority has not approved a powerplant for which a petition has been filed, such exemption— (1) to t h e extent i t applies to t h e prohibition under section 201 (2) against construction without t h e capability of using coal or another alternate fuel, shall n o t take effect until all approvals required by such State regulatory authority which relate to con- struction have been obtained; a n d (2) to the extent it applies to the prohibition u n d e r section 201 (1) against t h e use of n a t u r a l gas or petroleum as a p r i m a r y energy source, shall not take effect until all approvals required by such State regulatory authority which relate to construction or operation have been obtained. (c) No ALTERNATIVE POWER S U P P L Y I N T H E CASE OF A POWER- PLANT.—(1) Except in the case of an exemption under section 212 (c) or ( g ) , t h e Secretary may not g r a n t an exemption for a new power- p l a n t unless he finds t h a t t h e petitioner h a s demonstrated t h a t there is no alternative supply of electric power which is available within a reasonable distance a t a reasonable cost without i m p a i r i n g short-run or long-run reliability of service a n d which can be obtained by t h e petitioner, despite reasonable good faith efforts. Petition and (2) T h e Secretary shall forward a copy of a n y such petition t o t h e consultation. F e d e r a l E n e r g y Regulatory Commission p r o m p t l y after it is filed with the Secretary a n d shall consult with such Commission before m a k i n g any finding on such petition under p a r a g r a p h ( 1 ) . SEC. 214. TERMS AND CONDITIONS; COMPLIANCE PLANS. 42 u s e 8324. (a)TERMSAND CONDITIONS GENERALLY.—Any exemption from any prohibition under this subtitle shall be on such terms a n d conditions as the Secretary determines appropriate, including terms a n d condi- tions requiring t h e use of effective fuel conservation measures which are practicable a n d consistent w^ith. t h e purposes of this Act. I n t h e
PUBLIC LAW 95-620—NOV. 9, 1978 92 STAT. 3305 case of any temporary exemption, the terms and conditions (which may include a compliance plan meeting the requirements of subsection (b)) shall be designed to insure that upon the expiration of such exemption, the persons and powerplant or installation covered by such exemption will comply with the applicable prohibitions. (b) COMPLIANCE PLANS.—A compliance plan meets the require- ments of this subsection if it is approved by the Secretary and— (1) contains (A) a schedule indicating how compliance with applicable prohibitions of this Act will occur and (B) evidence oi binding contracts for fuel, or facilities for the production of fuel, which would allow or such compliance; and (2) is revised at such times and to such extent as the Secretary may require to reflect changes in circumstances. TITLE III—EXISTING FACILITIES Subtitle A—Prohibitions SEC. 301. EXISTING ELECTRIC POWERPLANTS. (a) GENERAL PROHIBITIONS.—Except to such extent as may be '^^ ^^^ ^^'^^• authorized under subtitle B— (1) natural gas shall not be used as a primary energy source in an existing electric powerplant on or after January 1,1990; (2) natural gas shall not be used as a primary energy source in an existing electric powerplant before January i, 1990, unless such powerplant used natural gas as a primary energy source at any time during calendar year 1977; and (3) natural gas shall not be used as a primary energy source in an existing electric powerplant in any calendar year before 1990 in greater proportions than the average yearly proportion of nat- ural gas which— (A) such powerplant used as a primary energy source in calendar years 1974 through 1976, or (B) if such powerplant began operations on or after Janu- ary 1,1974, such powerplant used as a primary energy source during the first two calendar years of its operation. The prohibition of paragraph (1) shall be stayed with respect to any Stay of existmg powerplant pending a resolution (including judicial review) prohibition. of any petition for any exemption from such prohibition which is filed for such powerplant at any time after the effective date of this Act, but at least one year before the date such prohibition first takes effect. (b) AUTHORITY OF SECRETARY To PROHIBIT WHERE COAL OR ALTER- NATE FUEL CAPABILITY EXISTS.—The Secretary may prohibit, in accordance with section 303 (a) or (b), the use of petroleum or natural gas, or both, as a primary energy source in any existing electric powerplant, if the Secretary finds that— (1) such powerplant has or previously had the technical capa- bility to use coal or another alternate fuel as a primary energy source; (2) such powerplant has the technical capability to use coal or another alternate fuel as a primary energy source, or it could have such capability without— (A) substantial physical modification of the powerplant, o r •••-"'•' (B) substantial reduction in the rated capacity of the powerplant; and 39-194 O—80—pt. 3 43 : QL3
92 STAT. 3306 PUBLIC LAW 95-620—NOV. 9, 1978 (3) it is financially feasible t o use coal or another alternate fuel as a p r i m a r y energy source i n such powerplant. Finding, T h e requirement of p a r a g r a p h (1) shall not be considered to be satis- publication. fied unless t h e finding under such p a r a g r a p h is made before t h e date of t h e publication of the notice of proposed prohibition under section Post, p. 3329. 701 (b) and is published with such notice. (c) A U T H O R I T Y OF SECRETARY T O P R O H I B I T EXCESSIVE U S E I N M I X - TURES.—In t h e case of a n y existing electric powerplant in which t h e Secretary finds i t is technically a n d financially feasible to use a mix- t u r e of petroleum or natural gas and coal or an alternate fuel as a pri- m a r y energy source, the Secretary may prohibit, in accordance with section 3 0 3 ( a ) , t h e use of petroleum or n a t u r a l gas, or both, in such powerplant in amounts in excess of t h e minimum amount necessary to maintain reliability of operation of the unit consistent with main- taining reasonable fuel efficiency of such mixture. SEC. 302. EXISTING MAJOR FUEL-BURNING INSTALLATIONS. 42 u s e 8342. ( a ) A U T H O R I T Y OF SECRETARY T o P R O H I B I T W H E R E COAL OR ALTER- NATE F U E L CAPABILITY E X I S T S . — T h e Secretary m a y p r o h i b i t , in accordance with section 303 ( a ) or ( b ) , the use of petroleum or natural gas, or both, as a p r i m a r y energy source in any existing major fuel- b u r n i n g installation, if the Secretary finds that— (1) such installation has or previously h a d t h e technical capa- bility to use coal or another alternate fuel as a p r i m a r y energy source; (2) such installation has t h e technical capability t o use coal or another alternate fuel as a p r i m a r y energy source, or it could have such capability without— ( A ) substantial physical modification of t h e unit, or ( B ) substantial reduction i n the rated capacity of the u n i t ; and (3) it is financially feasible to use coal or another alternate fuel as a p r i m a r y energy source in such installation. Finding, T h e requirement of p a r a g r a p h (1) shall not be considered to be satis- publication. fied unless the finding under such p a r a g r a p h is made before the date of the publication of the notice of proposed prohibition under section Post, p. 3329. 701 (b) and is published with such notice. ( b ) A U T H O R I T Y OF SECRETARY T o P R O H I B I T EXCESSIVE U S E I N M I X - TURES.— (1) I n the case of any existing major fuel-burning installation in which the Secretary finds it is technically and financially feasi- ble to use a mixture of petroleum or natural gas and coal or another alternate fuel as a p r i m a r y energy source the Secretary may prohibit, in accordance with section 3 0 3 ( a ) , the use of petroleum or n a t u r a l gas, or both, in such installation i n amounts in excess of t h e minimum percentage of t h e total B t u heat i n p u t of t h e p r i m a r y energy sources needed t o maintain reliability of opera- tion of t h e unit consistent with maintaining reasonable fuel efficiency of such mixture. Percentage (2) T h e percentage determined by t h e Secretary under para- determination. g r a p h (1) shall not be less t h a n 25 percent. SEC. 303. RULES RELATING TO CASE-BY-CASE AND CATEGORY PRO- HIBITIONS. 42 u s e 8343. (a) CASE-BY-CASE PROHIBITIONS.—(1) Except t o the extent author- ized by subsection ( b ) , t h e Secretary shall prohibit a n y powerplant or installation from using n a t u r a l gas o r petroleum under the author-
PUBLIC LAW 95-620—NOV. 9, 1978 92 STAT. 3307 ity granted him under section 301 (b) or (c) or 302 only by means of a final order issued by him which shall be limited to the particular powerplant or installation involved. (2) The Secretary may issue such a final order only with respect to a powerplant or installation which is not, at the time the proposed order IS issued, covered by a final rule issued under section (b). (3) (A) Subject to subparagraph (B), the Secretary shall not issue a final order under this subsection to any powerplant or installation if it is demonstrated that such powerplant or installation would have been granted an exemption if such prohibition had been established by a final rule pursuant to subsection (b) rather than by order pursuant to this subsection, except that if a temporary exemption would have been granted, such a final order may be issued but may not take effect until such time as the temporary exemption would have terminated. (B) In any case in which an order is not issued by reason of sub- paragraph (A) or in which the effective date of such order is delayed under subparagraph (A), the Secretary shall take such steps as may be necessary to assure the installation involved complies with the same requirements (including provisions of section 314(a)) as would have been applicable if an exemption had been granted based upon the grounds for which the order is not issued or the effective date of which IS delayed. (b) PROHIBITIONS APPLICABLE TO CATEGORIES OF FACILITIES.—(1) The Secretary may, by rule, prohibit the use of natural gas or petro- leum pursuant to section 301 (b) or 302(a)— (A) in the case of any category of existing electric powerplants identified in such rule; and (B) in the case of any category of existing major fuel-burning installations which have design capabilities of consuming fuel (or any mixture thereof) at a fuel heat input rate of 300 million Btu's per hour or greater which are identified in such rule. (2) Each powerplant or installation to be covered by any final rule issued under this subsection shall be specifically identified in the pro- posed rule published under section 701 (b). P°^^^ P- ^^29. (3) In prescribing any final rule under this subsection, the Secre- Final rule, tary shall take into account any special circumstances or character- application, istics of each category of powerplants or installations (such as the intermittent use, size, age, or geographic location of such powerplants or installations). Any such rules shall not apply in the case of any existing electric powerplant or major fuel-burning installation— (A) pending a resolution (including judicial review) of any petition for any exemption for such powerplant or installation which may be filed with the Secretary not later than 60 days after such final rule is published under section T02(a) ; or Post, p. 3331. (B) with respect to which a comparable prohibition was issued by order (or was proposed but was not issued by reason of sub- section ( a ) ( 3 ) ) . Subtitle B—Exemptions SEC. 311. TEMPORARY EXEMPTIONS. (a) TEMPORARY EXEMPTION- D U E TO LACK OP ALTERNATE FUEL S U P - 42 USC 8351. PLY, SITE LIMITATIONS, OR ENVIRONMENTAL REQUIREMENTS.—After consideration of a petition (and comments thereon) for an exemption from one or more of the prohibitions of subtitle A. for a powerplant or installation, the Secretary shall, by order, grant such an exemption
92 STAT. 3308 PUBLIC LAW 95-620—NOV. 9, 1978 for the use of natural gas or petroleum, if he finds that the petitioner has demonstrated that for the period of the proposed exemption, despite diligent ffood faith efforts— (1) it is likely that an adequate and reliable supply of coal or other alternate fuel of the quality necessary to conform with design and operational requirements for use as a primary energy source, will not be available to such powerplant or installation at a cost (taking into account associated facilities for the trans- portation and use of such fuel) which, based upon the best practicable estimates, does not substantially exceed the costs, as determined by rule by the Secretary, of using imported petroleum as a primary energy source; (2) one or more site limitations exist which would not permit the operation of such a powerplant or installation using coal or any other alternate fuel as a primary energy source; or (3) the prohibitions of section 301 or 302 could not be satified without violating applicable environmental requirements. (b) TEMPORARY EXEMPTION BASED UPON FUTURE USE OF SYNTHETIC FUELS.—^After consideration of a petition (and comments thereon) for an exemption from one or more of the prohibitions of subtitle A for a powerplant or installation, the Secretary, by order, shall grant an exemption under this subsection for the use of natural gas or petro- leum, if he finds that the petitioner has demonstrated that— (1) the petitioner will comply with the prohibitions of sub- title A by the end of the proposed exemption by the use of a synthetic fuel derived from coal or another alternate fuel; and (2) the petitioner is not able to comply with such prohibitions by the use of such synthetic fuel until the end of the proposed exemption. Compliance plan, The effectiveness of an exemption under this subsection is conditioned filing and on the petitioner filing and maintaining a compliance plan meeting maintenance. the requirements of section 314 (b). (c) TEMPORARY EXEMPTION BASED UPON USE OF INNOVATIVE TECH- NOLOGIES.—After consideration of a petition (and comments thereon) for an exemption from one or more of the prohibitions of subtitle A for a powerplant or installation, the Secretary, by order, shall grant an exemption under this subsection for the use of natural gas or petro- leum, if he finds that the petitioner has demonstrated that such power- plant or installation will comply with such prohibitions at the expiration of such exemption by the adoption of a technology for the use of coal or another alternate fuel which at the time of the granting of the exemption is determined by the Secretary to be an innovative Compliance plan, technology. The effectiveness of an exemption under this subsection is filing and conditioned on the petitioner filing and maintaining a compliance plan maintenance. meeting the requirements of section 314 (b). (d) TEMPORARY EXEMPTION FOR UNITS To B E RETIRED.— (1) After oonsideration of a petition (and comments thereon) for an exemption from one or more of the prohibitions of subtitle A for a powerplant or installation, the Secretary shall, by order, grant an exemption under this subsection for the use of natural gas or petroleum, if he finds that the petitioner has demonstrated that such powerplant or instal- lation is to permanently cease operation at or before the expiration Compliance plan, of the exemption period. An exemption under this subsection is con- filing and ditioned on the petitioner filing and maintaining a compliance plan maintenance. meeting the requirements of section 314(b) (other than paragraph (1)(B)).
PUBLIC LAW 95-620—NOV. 9, 1978 92 STAT. 3309 (2) Notwithstanding any other provision of this Act, an exemption under this subtitle may not be granted for any powerplant or instal- lation once an exemption under this subsection has been granted for such powerplant or installation. (e) TEMPORARY PUBLIC INTEREST EXEMPTION.—After consideration of a petition (and comments thereon) for an exemption for a power- plant or installation from one or more of the prohibitions of subtitle A for a powerplant or installation, the Secretary may, by order, grant an exemption under this subsection for the use of natural gas or petro- leum, if he finds that the petitioner has demonstrated that for the period of the proposed exemption the issuance of such exemption is in the public interest and is consistent with the purposes of this Act. (f) TEMPORARY EXEMPTION FOR PEAKLOAD POWERPLANTS.—After consideration of a petition (and comments thereon) for an exemption from one or more of the prohibitions of subtitle A for a powerplant, the Secretary shall, by order, grant an exemption under this subsec- tion for the use of natural gas or petroleum, if the petitioner certifies that such powerplant is to be operated solely as a peakload power- plant. (g) TEMPORARY EXEMPTION FOR POWERPLANTS WHERE NECESSARY TO MAINTAIN RELIABILITY OF SERVICE.—(1) After consideration of a peti- tion (and comments thereon) for an exemption from one or more of the prohibitions of subtitle A for a powerplant, the Secretary shall, by order, grant an exemption under this subsection for the use of natural gas or petroleum, if he finds that the petitioner has demon- strated that such exemption is necessary to prevent impairment of reliability of service. (2) Notwithstanding any other provision of this Act, an exemp- tion under this subtitle (other than a permanent exemption under sec- tion 312(f) for the use of petroleum) may not be granted for any powerplant for which an exemption under this subsection has been granted. (h) DURATION OF TEMPORARY EXEMPTIONS.—(1) Except as pro- vided in paragraphs (2) and (3), exemptions under this section for any powerplant or installation may not exceed, taking into accoimt any extension or renewal, 5 years. (2) (A) An exemption under subsection (a) (1) may be granted for a period of more than 5 years, but may not exceed, taking into account any extension or renewal, 10 years. (B) Subject to paragraph (3), an exemption under subsections (b), (c), and (g) may be extended beyond the 5-year limit under para- graph (1), but sudh exemption, so extended, may not exceed 10 years. (3) An exemption under subsections (d), (f), and (g) for the use of natural gas by a powerplant may not extend beyond December 31, 1994. (4) In computing the 5-year and 10-year limitations of para- graphs (1) and (2) in the case of any exemption under this section, the period before the prohibition on the use of natural gas and petro- leum would first apply (if the exemption had not been granted) shall be disregarded, SEC. 312. PERMANENT EXEMPTIONS. (a) PERMANENT EXEMPTION DUE TO LACK OF ALTERNATE FUEL 42 USC 8352. SUPPLY, SITE LIMITATIONS, OR ENVIRONMENTAL REQUIREMENTS.—(1) After consideration of a petition (and comments thereon) for an exemption from one or more of the prohibitions of subtitle A for a powerplant or installation, the Secretary shall, by order, grant a
92 STAT. 3310 PUBLIC LAW 95-620—NOV. 9, 1978 permanent exemption under this subsection for the use of natural gas or petroleum, if he finds that the petitioner has demonstrated that despite diligent good faith efforts— (A) it is likely that an adequate and reliable supply of coal or other alternate ruels of the quality necessary to conform with design and operational requirements for use as a primary energy source will not be available to such powerplant or installation at a cost (taking into account associated facilities for the transporta- tion and use of such fuel) which, based upon the best practicable estimates, does not substantially exceed the cost, as determined by rule by the Secretary, of using imported petroleum as a primary energy source during the remaining useful life of the powerplant or installation; (B) one or more site limitations exist which would not permit the operation of such a powerplant or installation using coal or any other alternate fuel as a primary energy source; or (C) the prohibitions of subtitle A could not be satisfied with- out violating applicable environmental requirements. (2) Notwithstanding the preceding provisions of this subsection, a powerplant which has been granted an exemption under subsection (g) may not be granted an exemption under this subsection. (b) PERMANENT EXEMPTION DUB TO CERTAIN STATE OR LOCAL REQUIREMENTS.—^After consideration of a petition (and comments thereon) for an exemption from one or more of the prohibitions of subtitle A for a powerplant or installation, the Secretary may, by order, grant a permanent exemption under this subsection, if he finds that the petitioner has demonstrated that— (1) with respect to the site of the powerplant or installation, the operation of such a facility using coal or any other alternate fuel is infeasible because of a State or local requirement; (2) if such State or local requirement is under a building code or nuisance or zoning law, no other exemption under this subtitle could be granted for sudh facility; and (3) the granting of the exemption would be in the public inter- est and would be consistent with the purposes of this Act. (c) PERMANENT EXEMPTION FOR COGENERATION.—After considera- tion of a petition (and comments thereon) for an exemption from one or more of the prohibitions of subtitle A for a cogeneration facility, the Secretary may, by order, grant a permanent exemption under this subsection, if he— (1) finds that the petitioner has demonstrated that economic and otheT benefits of cogeneration are unobtainable unless petro- leum or natural gas, or both, are used in such facility, and (2) includes in the final order a statement of the basis for such finding. (d) PERMANENT EXEMPTION FOR CERTAIN F U E L MIXTURES CONTAIN- ING NATURAL GAS OR PETROLEUM.—(1) After consideration of a peti- tion (and comments thereon) for an exemption from one or more of the prohibitions of subtitle A for a powerplant or installation, the Secretary shall, by order, grant a permanent exemption under this subsection, if he finds that the petitioner has demonstrated that— (A) the powerplant or installation uses, or proposes to use, a mixture of petroleum or natural gas and coal or another alternate fuel as a primary energy source; and (B) the amount of the petroleum or natural gas used in such mixture will not exceed the minimum percentage of the total Btu
PUBLIC LAW 95-620—NOV. 9, 1978 92 STAT. 3311 heat input of the primary energy sources of such powerplant or installation needed to maintain reliability of operation of the unit consistent with maintaining a reasonable level of fuel effi- ciency, as determined in accordance with rules prescribed by the Secretary. (2) In the case of an existing major fuel-buming installation, the Percentage percentage determined by the Secretary under subparagraph (B) of determination, paragraph (1) shall not be less than 25 percent. (3) In the case of an existing electric powerplant, the Secretary may authorize a higher percentage than that referred to in paragraph (1) (B) if he finds that the higher percentage of natural gas allowed would be mixed with synthetic fuels derived from municipal wastes or agricultural wastes and would encourage the use of alternate or new technologies which use renewable sources of energy. (e) PERMANENT EXEMPTION FOR EMERGENCY PURPOSES.—After con- sideration of a petition (and comments thereon) for an exemption from one or more of the prohibitions of subtitle A for a powerplant or installation, the Secretary shall, by order, grant a permanent exemption under this subsection, if he finds that the petitioner has dem- onstrated that such powerplant or installation will be maintained and operated only for emergency purposes (as defined by rule by the Secretary). (f) PERMANENT EXEMPTION FOR PEAKLOAD POWERPLANTS.—After consideration of a petition (and comments thereon) for an exemption from one or more of the prohibitions of subtitle A for a powerplant, the Secretary shall, by order, grant a permanent exemption under this subsection, if he finds that— (1) the powerplant is operated solely as a peakload powerplant; (2) a denial of such petition is likely to result in an impair- ment of reliability of service; and (3) (A) modification of the powerplant to permit compliance with such prohibitions is technically infeasible; or (B) such modification would result in an unreasonable expense. (g) PERMANENT EXEMPTION FOR INTERMEDIATE LOAD POWER- PLANTS.—(1) After consideration of a petition (and comments thereon) for an exemption from one or more of the prohibitions of subtitle A on the use of petroleum by a powerplant, the Secretary may, by order, grant a permanent exemption under this subsection, if he finds that the petitioner has demonstrated that— (A) the Administrator of the Environmental Protection Agency (or the appropriate State air pollution control agency) certifies to the Secretary that the use by such powerplant of coal or any available alternate fuel as a primary energy source will cause or contribute to a concentration, in an air quality control region or any area within such region, of a pollutant for which any national ambient air quality standard is or would be exceeded for such area; (B) such powerplant is to be operated only to replace no more than the equivalent capacity of existing electric powerplants— (i) which use natural gas or petroleum as a primary energy source, (ii) which are owned by the same person who is to oper- ate such powerplant, and (iii) which, if they used coal as a primary energy source, would cause or contribute to such a concentration in such region;
92 STAT. 3312 PUBLIC LAW 95-620—NOV. 9, 1 9 7 8 (C) such powerplant is and shall continue t o be operated solely as an intermediate load powerplant; ( D ) t h e n e t fuel heat input rate for such powerplant will be maintained a t or less t h a n 9,500 B tu's per kilowatt hour through- out the remaining useful life of the powerplant; a n d ( E ) t h e powerplant h a s t h e capability t o use synthetic fuels derived from coal or other alternate fuel. Review. (2) The Secretary shall, from time t o time, review each exemption granted to a powerplant under this subsection, and shall terminate such exemption if he finds that there is available a supply of synthetic fuel derived from coal or other alternate fuel suitable for use as a p r i m a r y energy source by such powerplant. ( h ) P E R M A N E N T E X E M P T I O N FOR U S E OF NATURAL G A S BY CERTAIN POWERPLANTS W i T H CAPACITIES OF L E S S T H A N 2 5 0 MiLLlON B T U ' S P E R H O U R . — ( 1 ) Subject t o p a r a g r a p h ( 2 ) , after consideration of a peti- tion (and comments thereon) for an exemption from any prohibition of subtitle A for the use of n a t u r a l gas by a powerplant, the Secretary shall, by order, g r a n t a permanent exemption under this subsection for such use, if he finds t h a t t h e petitioner has demonstrated that— ( A ) such powerplant has a design capability of consuming fuel (or any mixture thereof) a t a fuel heat input rate of less t h a n 250 million Btu's per h o u r ; ( B ) such powerplant was a baseload powerplant on A p r i l 20, 1977; and (C) such powerplant is not capable of consuming coal with- out— (i) substantial physical modification of t h e u n i t ; or (ii) substantial reduction in t h e rated capacity of t h e unit (as determined by the Secretary). Exemption ^2) A n exemption under this subsection may only apply to the pro- app ica 1 ity. hibitions under section 301 a n d prohibitions established by final rules or orders issued before J a n u a r y 1,1990. (i) P E R M A N E N T E X E M P T I O N FOR T H E U S E OF L N G BY CERTAIN POWER- PLANTS.—After consideration of a petition ( a n d comments thereon) for an exemption from one or more of the prohibitions of subtitle A for a powerplant, the Secretary shall, by order, g r a n t a permanent exemption under this subsection for the use of liquefied n a t u r a l gas if t h e Administrator of the Environmental Protection Agency (or the appropriate State a i r pollution control agency) has certified to the Secretary t h a t the use of coal by such powerplant as a primary energy source will cause or contribute t o a concentration, in an air uality control region or an;^ area within such region, of a pollutant ? or which any national ambient air quality standard is or would be exceeded for such region or area and the use of coal would not comply with applicable environmental requirements. (j) P E R M A N E N T E X E M P T I O N FOR INSTALLATIONS SERVED BY CERTAIN INTERNATIONAL P I P E L I N E S . — (1) A f t e r consideration of a petition (and comments thereon) for an exemption for an installation from one or more of the prohibitions of subtitle A, the Secretary shall, by order, grant a permanent exemption under this subsection for the use of natural gas, if he finds t h a t the petitioner has demonstrated that— ( A ) such installation's p r i m a r y source of natural gas is under a contract with a pipeline between Canada and the United States which cannot be cancelled by t h e petitioner without his suffering substantial financial penalty;
PUBLIC LAW 95-620—NOV. 9, 1978 92 STAT. 3313 ( B ) such pipeline was supplying to such installation before A p r i l 21, 1977, n a t u r a l gas from Canada under such contract; (C) such pipeline serves high-priority users within t h e United States service to whom would be jeopardized if service to such installation is t e r m i n a t e d ; ( D ) t h e revenues from the transportation a n d sale of n a t u r a l gas transported by such pipeline are essential to t h e economic vitality of the pipeline; and ( E ) t h e exemption is consistent with t h e purposes of this Act, and the denial of such exemption would not result in n a t u r a l gas being made available for any other use within t h e United States. (2) F o r purposes of this subsection, t h e term "high-priority user" "High-priority means a n y residential user of natural gas, or any commercial user ^^^^ • whose consumption of natural gas on a peak day is less t h a n 50 Mcf, as determined by the Secretary. ( k ) P E R M A N E N T E X E M P T I O N FOR INSTALLATION BASED U P O N PRODUCT OR PROCESS R E Q U I R E M E N T S . — A f t e r consideration of a petition ( a n d comments thereon) for an exemption for an installation from one or more of t h e prohibitions of subtitle A , t h e Secretary shall, by order, g r a n t a permanent exemption under this subsection, if he finds t h a t the petitioner has demonstrated that— (1) t h e use of coal or other alternate fuels is not technically feasible due to t h e necessity to maintain satisfactory control of product quality; a n d (2) substitution of steam is n o t technically feasible due t o process requirements. (1) P E R M A N E N T E X E M P T I O N FOR INSTALLATIONS NECESSARY T O M E E T SCHEDULED E Q U I P M E N T OUTAGES.—After consideration of a petition (and comments thereon) for any exemption from one or more of t h e ;> ; prohibitions of subtitle A for an installation, t h e Secretary may, by order, g r a n t a permanent exemption under this subsection, if he finds t h a t the petitioner has demonstrated t h a t such exemption is necessary to meet scheduled equipment outages (as defined by t h e Secretary by rule). SEC. 313. GENERAL REQUIREMENTS FOR EXEMPTIONS. (a) U S E OF MIXTURES OR FLUIDIZED B E D COMBUSTION N O T 42 USC 8353. FEASIBLE.—Except in the case of an exemption under section 312 ( b ) , ( f ) , (i) or ( i ) , t h e Secretary may g r a n t a permanent exemption for a powerplant or installation under this subtitle only— (1) if the applicant has demonstrated t h a t the use of a mixture of natural gas or petroleum a n d coal (or other alternate fuels), for which an exemption under section 312(b) would be available, is not economically or technically feasible; a n d (2) if t h e Secretary has n o t made a finding t h a t the use of a method of fluidized bed combustion of coal or an alternate fuel is economically and technically feasible. (b) No ALTERNATIVE POWER S U P P L Y I N T H E CASE OF A POWER- PLANT.—(1) I n the case of an exemption under section 312 (b) or ( g ) , the Secretary m a y not g r a n t an exemption for an existing power- p l a n t unless he finds t h a t the petitioner h a s demonstrated t h a t there IS no alternative supply of electric power which is available within a reasonable distance a t a reasonable cost without impairing short-run or long-run reliability of service a n d which can be obtained by t h e petitioner, despite reasonable good faith efforts. (2) T h e Secretary shall forward a copy of any such petition to t h e Petition and Federal E n e r g y Regulatory Commission promptly after it is filed consultation.
92 STAT. 3314 PUBLIC LAW 95-620—NOV. 9, 1978 with the Secretary and shall consult with the Commission before making any finding on such petition under paragraph (1). SEC. 314. TERMS AND CONDITIONS; COMPLIANCE PLANS. 42 use 8354. (a) TERMS AND CONDITIONS GENERALLY.—Any exemption from any prohibition under this subtitle shall be on such terms and conditions as the Secretary determines appropriate, including terms and condi- tions requiring the use of effective fuel conservation measures which are practicable and consistent with the purposes of this Act. In the case of any temporary exemption, the terms and conditions (which may include a compliance plan meeting the requirements of subsection (b)) shall be designed to insure that upon the expiration of such exemption, the persons and powerplant or installation covered by such exemption will comply with the applicable prohibitions. (b) COMPLIANCE PLANS.—A compliance plan meets the require- ments of this subsection if it is approved by the Secretary and— (1) contains (A) a schedule indicating how compliance with applicable prohibition of this Act will occur and (B) evidence of binding contracts for fuel, or facilities for the production of fuel, which would allow for such compliance; and (2) is revised at such times and to such extent as the Secretary may require to reflect changes in circumstances. TITLE IV—ADDITIONAL PROHIBITIONS; EMERGENCY AUTHORITIES SEC. 401. AUTHORITY TO PROHIBIT USE OF NATURAL GAS IN CERTAIN BOILERS USED FOR SPACE HEATING. 42 use 8371. (a) EXISTING BOILERS.—The Secretary may prohibit the use of natural gas as a primary energy source in any existing boiler (other than a major fuel-burning installation) if he finds that— (1) such boiler is used to produce steam for space heating purposes; (2) such boiler consumes 300 Mcf or more of natural gas per day on a peak day; (3) such boiler has, or previously had, the technical capability to use petroleum as a primary energy source; (4) such boiler has the technical capability to use petroleum as a primary energy source or it could have such capability without— (A) substantial physical modification of the boiler, or (B) substantial reduction in the rated capacity of the unit; (5) it is financially feasible for such boiler to use petroleum as a primary energy source; and (6) such prohibition is consistent with the purposes of this Act. The requirement of paragraph (3) shall not be considered to be satis- fied unless the finding under such paragraph is made before the date of the publication of the notice of proposed prohibition under sec- tion 701(b). (b) NEW BOILERS.—The Secretary may prohibit the use of natural gas as a primary energy source in any new boiler (other than a major fuel-burning installation) if he determines that— (1) such boiler will be used to produce steam for space heating purposes; (2) such boiler will, by design, be capable of consuming 300 Mcf or more of natural gas per day; and (3) such prohibition is consistent with the purposes of this Act.
PUBLIC LAW 95-620—NOV. 9, 1978 92 STAT. 3315 (c) ExEMpnoN.—The Secretary shall exempt any person from any prohibition prescribed pursuant to subsection (a) or (b) if such per- son demonstrates to the Secretary that an adequate and reliable source of petroleum is not likely to be available to such person during the period of the exemption. (d) DEFINITIONS.— (1) The term "new boiler" means any boiler for which there was not a commitment for construction or acquisition as of the date of the publication under section 701(b) of the proposed ' rule or order establishing the prohibition. (2) The term "existing boiler" means any boiler other than a new boiler. (e) METHOD OF PROHIBITION.—(1) (A) Except to the extent author- ized by paragraph (2), the Secretary shall prohibit boiler fuel use of natural gas under the authority granted him in subsection (a) or (b) only by means of a final order issued by him which shall be limited to the particular boiler involved. (B) The Secretary may issue such an order only with respect to a boiler which is not, at the time the proposed order is issued, covered by a final rule issued under paragraph (2). (C) The Secretary shall not issue a final order under this subsection with respect to any boiler if it is demonstrated that an exemption under subsection (c) would have been granted with respect to such boiler if such prohibition had been established by rule pursuant to paragraph (2) rather than by order. (2) (A) The Secretary may, by rule, prohibit the use of natural gas under the authority of subsection (a) or (b) in the case of any category of boilers identified in such rule. (B) Any existing boiler to be covered by any rule issued under this subsection shall be specifically identified in the proposed rule published under section 701 (b). (C) In prescribing any rule under this subsection, the Secretary shall take into account any special circumstances or characteristics of each category of boilers (such as the technical feasibility of burning petroleum and the size, age, or geographic location of such boilers). Any such final rule shall not apply in the case of any boiler— Final rule, (i) subject to such rule pending a resolution of any petition (in- application, eluding judicial review) for any exemption for such boiler which may be filed with the Secretary not later than 60 days after such rule is published under section 701 ( b ) ; or (ii) with respect to which a comparable prohibition was issued by order (or was proposed but was not issued because it was demonstrated that it could qualify for an exemption under sub- section (c)). SEC. 402. PROfflBITION ON USE OF NATURAL GAS FOR DECORATIVE OUTDOOR LIGHTING. (a) PROHIBITION ON INSTALLATION or NEW OUTDOOR LIGHTING.— 42 USC 8372. Effective beginning on the date of the enactment of this Act, no local distribution company, or any industrial user of natural gas who ob- tains such gas under a contract between such user and a natural gas pipeline, or any agent thereof, shall install any outdoor lighting fix- ture using natural gas. (b) PROHIBITION ON SELLING NATURAL GAS To B E USED IN OUTDOOR LIGHTING.—(1) Not later than 180 days after the date of the enactment of this Act, the Secretary shall, by rule, prohibit any local distribution
92 STAT. 3316 PUBLIC LAW 95-620—NOV. 9, 1978 company (unless an exemption has been obtained under subsection (c)) from providing natural gas service for use in outdoor lighting— (A) effective on the date such final rule is issued, in the case of any residential, commercial, or industrial customer unless a later effective date is applicable under subparagraph (B) or (C) of this paragraph; (B) effective beginning 180 days after the date such final rule is issued, in the case of any industrial or commercial structure for which natural gas was being provided by such company for out- door lighting use on the date of the enactment of this Act; and 4 (C) effective beginning January 1, 1982, in the case of— (i) any municipal outdoor lighting fixture, and (ii) any outdoor lighting fixture used in connection with a residence, for which natural gas was being provided by such company for outdoor lighting use on the date of the enactment of this Act. (2) The rule prescribed under paragraph (1) shall provide that any industrial user of natural gas who obtains such natural gas under a contract between such user and a natural gas pipeline shall be pro- hibited from using such natural gas for outdoor lighting (unless an ex- emption has been obtained under subsection (c)) — (A) effective 180 days after the date such final rule takes effect, if the industrial user was using natural gas for outdoor lighting on the date of the enactment of this Act; or (B) beginning on the date such final rule takes effect, if such in- dustrial user was not so using natural gas on such date. (c) EXEMPTIONS.—(1) The Secretary shall, by order— (A) exempt from the prohibition under subsection (a) the in- stallation of a replacement lighting fixture for any memorial light or light of historical signficance, and (B) permanently exempt from a prohibition under subsection (b) the use natural gas in any memorial light or light of his- torial significance. if a petition for such exemption is made by a Federal, State, or local government agency or by any appropriate historical association. (2) The Secretary shall, by order— (A) exempt from the prohibition under subsection (a), upon a petition therefor, the installation of a replacement lighting fix- ture for any natural gas outdoor lighting, and (B) permanently exempt from a prohibition under subsection (b), upon a petition therefor, use of natural gas for outdoor lighting, which is used for commercial purposes, which is of a traditional na- ture, and which conforms with the cultural or architectural style of the area in which such light is located. Petition, filing. (3) The Secretary shall, by order, exempt any local distribution company or industrial user described in subsection (b) (2), from the rule required to be prescribed under subsection (b) concerning the con- tinuation of such service in effect on the date of the enactment of this Act upon the filing of a petition therefor by such pipeline or company, or by any other interested person. Such exemption shall be for such period as, and to the extent that, the Secretary finds— (A) such exemption is necessary to protect the safety of persons or property;
PUBLIC LAW 95-620—NOV. 9, 1978 92 STAT. 3317 (B) such exemption is necessary to permit the installation of substitute lighting where no adequate outdoor lighting (other than that using natural gas) exists on the date of the enactment of this Act; (C) compliance with such rule would entail substantial expense and would not be cost justified; or (D) the issuance of the exemption is in the public interest and is consistent with the purposes of this Act. (4) Determinations on any petition for an exemption under this Determinations, section shall be made under criteria which the Secretary shall establish by rule, which rule shall be prescribed not later than 180 days after the effective date of this Act. (d) PROCEDURES.—Eules and orders under this section shall be made Hearing, in accordance with the provisions of section 553 of title 5, United States Code, except that determinations on any petition for exemption under this section shall be made only after interested persons have been afforded an opportunity for a public hearing. Under rules prescribed by the Secretary, the Secretary may stay the application of any pro- hibition under subsection (b) applicable to any person pending the resolution of any petition for an exemption for such person. (e) AUTHORITY MAY B E DELEGATED TO STATES.—(1) Under regula- tions prescribed by the Secretary, the responsibility and authority of the Secretary with regard to outdoor lighting under this section may be delegated to the appropriate regulatory authority of a State if he determines that such delegation would be consistent with the purposes of this section. (2) Any delegation under paragraph (1) shall be on terms and con- ditions prescribed by the Secretary and may be rescinded by the Secretary at any time by notifying the State authority of such rescis- sion. (3) Any State authority to which the Secretary has delegated Reports, authority under this subsection shall prepare and transmit reports to transmittal to Secretary. the Secretary on a periodic basis (as determined by the Secretary) on actions taken to carry out the purposes of this section. (f) DEFINITIONS.— As used in this section— (1) The term "outdoor lighting" means lighting by any station- ary source which is not located inside any building. (2) The term "pipeline company" means any person engaged in the business of transporting natural gas by pipeline other than as a local distribution company. (3) The term "local distribution company" means any person engaged in the business of transportation and local distribution of natural gas and the sale of natural gas for ultimate consump- tion. (4) The term "residence" means any single or multiple family dwelling unit, including commonly held areas associated with any such unit. SEC. 403. CONSERVATION IN FEDERAL FACILITIES, CONTRACTS, AND FINANCIAL ASSISTANCE PROGRAMS. (a) FEDERAL FACILITIES.—(1) Each Federal agency owning or 42 USC 8373, operating any electric powerplant, major fuel-burning installation, or other unit shall comply with any prohibition, term, condition, or other substantial or procedural requirement under this Act, to the same extent as would be the case if such powerplant, installation, or unit ; were owned or operated by a nongovernmental person. - -,
92 STAT. 3318 PUBLIC LAW 95-620—NOV. 9, 1978 Exemption order (2) The President may, by order, exempt from the application of by President. paragraph (1) any powerplant, installation, or other unit owned or operated by any Federal agency, if the President determines that— (A) such use is in the paramount interest of the United States and that the powerplant, installation, or unit involved is a com- ponent of or is used solely in connection with any weaponry, equip- ment, aircraft, vessels, vehicles or other classes or categories of property which— (i) are owned or operated by the Armed Forces of the United States (including the Coast Guard) or by the National Guard of any State; and (ii) are uniquely military in nature; or (B) there is a lack of appropriation for such use but only if the President specifically requested such appropriations as a part of the budgetary process and the Congress failed to make available such requested appropriation. Transmittal to Such order shall not take effect until 60 days after a copy of such order Congress. has been transmitted to each House of the Congress. The President Review, shall review each such determination every 2 years and submit a report submittal to to the Congress on the results of such review. Any powerplant, installa- Congress. tion, or other unit permitted to use natural gas or petroleum under an exemption under this paragraph shall establish and carry out effective fuel conservation measures, as determined by the Secretary. (3) Any powerplant, installation, or unit owned or operated by any such Federal agency shall be entitled to any exemption by the Secre- tary to the same extent, in the same manner, and under the same terms and conditions as would apply if it were owned or operated by a non- governmental person. (b) FEDERAL CONTRACTS AND FINANCIAL ASSISTANCE.—(1) In order to implement the purposes of this Act, the President shall, not later than 30 days after the effective date of this Act, issue an order— Requirements. (A) requiring each Federal agency which is authorized to extend Federal assistance by way of grant, loan, contract, or other form of financial assistance, to promptly effectuate the purposes of this Act relating to the conservation of petroleum and natural gas, by rule, in such contracting or assistance activities within 180 days after issuance of such order, and Annual reports, (B) setting forth procedures, sanctions, penalties, and such transmittal to other provisions as the President determines necessary to carry President and out such requirement effectively, including a requirement that public each agency annually transmit to the President, and make avail- availability. able to the public, a report on the actions taken and to be taken to implement such order. (2) The President may exempt by order any specific grant, loan, contract, or other form of financial assistance from all or part of the provisions of this subsection if he determines such exemption is in the Written national interest. The President shall notify the Congress in writing notification to of such exemption at least 60 days before it is effective. Congress. (3) The President or any Federal agency may not use the authority granted under paragraph (1) to require compliance, including the use of coal, by any person or facility with any prohibition under other sections of this Act if such person or facility has been specifically determined by the Secretary as subject to such prohibition or has been exempted from the application of such prohibition. Submittal to (c) ANNUAL REPORT.—The President shall annually submit a Congress. detailed report to each House of the Congress on the actions taken by
PUBLIC LAW 95-620—NOV. 9, 1978 92 STAT. 3319 the President and each Federal agency to implement this section, including the progress and problems associated with implementation of this section. SEC. 404. EMERGENCY AUTHORITIES. (a) COAL ALLOCATION AUTHORITY.—(1) If the President— 42 use 8374. (A) declares a severe energy supply interruption, as defined in section 3(8) of the Energy Policy and Conservation Act, or 42 use 6202. (B) finds, and publishes such finding, that a national or regional fuel supply shortage exists or may exist which the President determines— (i) is, or is likely to be, of significant scope and duration, and of an emergency nature; (ii) causes, or may cause, major adverse impact on public health, safety, or welfare or on the economy; and (iii) results, or is likely to result, from an interruption in the supply of coal or from sabotage, or an act of God; the President may, by order, allocate coal (and require the transpor- tation thereof) for the use of any electric powerplant or major luel- burning installation, in accordance with such terms and conditions as he may prescribe, to insure reliability of electric service or prevent unemployment, or protect public health, safety, or welfare. (2) For purposes of this subsection, the term "coal" mans anthra- "Coal.' cite and bituminous coal and lignite (but does not mean any fuel derivative thereof). (b) EMERGENCY PROHIBITION ON USE OP NATURAL GAS OR PETRO- LEUM.—If the President declares a severe energy supply interruption, as defined in section 3(8) of the Energy Policy and Conservation Act, 42 use 6202. the President may, by order, prohibit any electric powerplant or major fuel-burning installation from using natural gas or petroleum, or both, as a primary energy source for the duration of such interruption. Not- withstanding any other provision of this section, any suspension of emission limitations or other requirements of applicable implementa- tion plans, as defined in section 110(d) of the Clean Air Act, required 42 use 7410. by such prohibition shall be issued only in accordance with section 110 (f) of the Clean Air Act. (c) EMERGENCY STAYS.—The President may, by order, stay the ap- plication of any provision of this Act, or any rule or order thereunder, applicable to any new or existing electric powerplant, if the President finds, and publishes such finding, that an emergency exists, due to na- tional, regional, or systemwide shortages of coal or other alternate fuels, or disruption of transportation facilities, which emergency is likely to affect reliability of service of any such electric powerplant. (d) DURATION OF EMERGENCY ORDERS.—(1) Except as provided in paragraph (3), any order issued by the President under this section shall not be effective for longer than the duration of the interruption or emergency, or 90 days, whichever is less. (2) Any such order may be extended by a subsequent order which Transmittal to the President shall transmit to the Congress in accordance with sec- Congress. tion 551 of the Energy Policy and Conservation Act. Such order shall 42 use 6421. be subject to congressional review pursuant to such section. Congressional (3) Notwithstanding paragraph (1), the effectiveness of any order review. issued under this section shall not terminate under this subsection dur- ing the 15-calendar-day period during which any such subsequent order described in paragraph (2) is subject to congressional review under section 551 of the Energy Policy and Conservation Act. 42 u s e 6421.
92 STAT. 3320 PUBLIC LAW 95-620—NOV. 9, 1 9 7 8 (4) F o r purposes of this subsection, the provisions of this subsection supersede the provisions of title I I of t h e A c t of September 14, 1976 (Public L a w 94-412; 50 U.S.C. 1621 and following). (e) DELEGATION o r A U T H O R I T Y P R O H I B I T E D . — T h e a u t h o r i t y of t h e President t o issue any order under this section may n o t be delegated. This subsection shall not be construed t o prevent t h e President from directing any Federal agency to issue rules or regulations or take such other action, consistent with this section, in the implementation of such order. Publication in (f) PUBLICATION AND REPORTS TO CONGRESS OF ORDERS.—Any o r d e r Federal Register. issued under this section shall be published in t h e Federal Register. To the greatest extent practicable, the President shall, before issuing any order under this section, but in no event later than 6 days after issuing such order, report to the Congress of his intention to issue such order and state his reasons therefor. ( g ) EMERGENCY U S E S o r NATURAL G A S OR P E T R O L E U M . — ( 1 ) During a temporary emergency condition (other than emergency conditions Ante, p. 3292. )rovided for under section 103(a) ( 1 5 ) ) , any person operating a peak- { oad powerplant or a major fuel-burning installation may, under rules prescribed by the Secretary, use n a t u r a l gas or petroleum as a p r i m a r y energy source in such powerplant or installation, notwithstanding any prohibition otherwise imposed by or pursuant to this Act, if— ( A ) such person notifies t h e Secretary within 24 hours after commencing such use; and ( B ) the Secretary has not notified such person t h a t in his judg- ment the emergency condition does not exist or does not w a r r a n t the use of n a t u r a l gas or petroleum involved. (2) W i t h i n 90 days after t h e effective date of this Act, t h e Secre- t a r y shall, by rule, prescribe the form and content of such notices and the conditions which may constitute a temporary emergency. (3) H o u r s of operation allowed under p a r a g r a p h (1) shall not be included in the peakload powerplant's operating hours for the purposes of the penalties in section 723 ( b ) . SEC. 405. AUTHORITY TO RESTRICT INCREASED USES OF PETROLEUM BY EXISTING POWERPLANTS. 42 u s e 8375. T h e Secretary shall, by rule, require that, in t h e case of any existing electric powerplant which d u r i n g calendar year 1977 uses coal or another alternate fuel as a p r i m a r y energy source, petroleum may not be used in such powerplant as a p r i m a r y energy source in excess of the quantities of petroleum used in such powerplant as a p r i m a r y energy source d u r i n g such year unless a permit is issued by t h e Secretary Permit, issuance. authorizing such increased use of petroleum. Such permit shall be issued if— (1) the Administrator of the Environmental Protection Agency (or the appropriate State air pollution control agency) certifies to the Secretary ( A ) t h a t t h e powerplant cannot comply with t h e 42 u s e 7401 requirements of the Clean A i r A c t , including a n y applicable note. implementation plan, as defined i n section 110 (d) of the Clean A i r 42 u s e 7410. Act, without the issuance of such permit a n d ( B ) t h e petitioner has established the duration of the need for increased petroleum to comply with such p l a n ; and (2) t h e a p p r o p r i a t e State regulatory authority has certified t o the Secretary t h a t the increased use of petroleum by such power- plant is necessary to prevent impairment of reliability of service. Such permit shall be issued only for such period as the Secretary deter- mines necessary under p a r a g r a p h (1) or (2) for such increased use of petroleum.
PUBLIC LAW 95-620—NOV. 9, 1978 92tSTAT, 332t TITLE V—SYSTEM COMPLIANCE OPTION SEC. 501. ELECTRIC UTILITY SYSTEM COMPLIANCE OPTION. (a) GENERAL RULE.—Existing electric powerplants owned or oper- 42 USC 8391. ated hj an electric utility shall be considered in compliance with any prohibition under title I I I relating to the use of natural gas if there IS in effect a plan of system compliance for such utility approved by the Secretary under subsection (b). No exemption under title I I I relating to the use of natural gas shall be available for any powerplant which is, or has ever been, covered by such an approved plan (other than an exemption under section 312(e)). (b) REQUIREMENTS FOR PLAN APPROVAL.—The Secretary shall, by order, approve any plan of system compliance submitted by an electric utility to the Secretary before January 1, 1980, if the Secretary finds that such plan— (1) identifies all powerplants owned or operated by such^electric utility and indicates which of the powerplants— « \d aug ImuiBn (A) would be subject to, or could be subject ^tbf'prohibitid^ under title I I I relating to the use of natural gas if such plan were not approved; and (B) of those so indicated in subparagraph (A), would fee, or in the opinion of such electric utility would be likely to(b'e^ entitled to an exemption under title I I I relating to the use of natural gas if such plan were not approved; (2) contains a commitment that, if such plan is approved, no new electric powerplant which is or is to be a base load powerplant owned or operated by such utility shall use natural gas or petrog leum as its primary energy source (whether or not such poweis plant could qualify for an exemption under title I I for such use); Ante, p. 3298. (3) contains a commitment (including a schedule for an orderly progression in satisfying such commitment) that, if such plan is approved, all existing electric powerplants owned or operated by such utility— (A) subject to subparagraph (B), on and after January 1, 1995, would not use natural gas as a primary energy source, except in the case of an intermediate load powerplant or a peakload powerplant, and then only in accordance with(i3:^es larf^iH prescribed by the Secretary; and m B jaso s^Eimov^q (B) on and after January 1, 2000, would not use natural .sonswoiiB gas as a primary energy source except in the case of a tempo- rary extension obtained under subsection ( d ) ; (4) contains a commitment that, if such plan is approved, nat- ural gas will not, on and after January 1,1990, be used by power- plants owned or operated by such utility in excess of— (A) 20 percent (or such higher percentage as may be allowed under subsection (d)(2)) of the electric utility's base period usage of natural gas, or, if lower, (B) the electric utility's minimum peakload requirement for the calendar year; (5) contains a commitment that, if such plan is approved, the natural gas used by such utility will be obtained only under— (A) a contract entered into before the date of the enact- ment of this Act (other than under an extension or renewal of such contract occurring on or after such date); or (B) a contract entered into on or after sudh date, orTf|i extension or renewal occurring on or after such date of <a!<eoio 39-194 O—80—pt. 3 44 : QL3
92 STAT. 3322 PUBLIC LAW 95-620—NOV. 9, 1978 tract entered into before such date, but only if such contract, extension, or renewal has been approved by the Secretary under subsection ( g ) ; and IQ?,S 38U 2J^ -i9qc (6) contains a 10-year forecast of such utility's demand for elec- XaB tricity, a 10-year construction forecast, and a 10-year financial oi9xI|>lan, which provide a reasonable basis for concluding that the commitments in such plan will be carried out. Approval of the Secretary under this subsection shall be conditioned on the utility involved updating on an annual basis the information contained in such plan to the extent provided under rules prescribed by the Secretary. (c) PLAN KEVISION.—^A plan under subsection (b) may be revised but only if the Secretary, by order, approves such revision. (d) EXTENSION FOR EMERGENCY OR PEAKLOAD PURPOSES.—(1) For purposes of subsection (b) (3) (B), the Secretary may extend the date specified therein for not more than 5 years with respect to the use of natural gas by any powerplant if it is demonstrated that such use of natural gas is to be— (A) for emergency purposes consistent with section 312(e), or (B) for peakload purposes, consistent with section 312(f). (2) The Secretary may exempt from the requirements of subsection (b) (4) such quantities of natural gas as would otherwise exceed such requirement if it is demonstrated that such natural gas is used solely for emergency or peakload purposes described in paragraph (1) (A) or(B). (e) DETERMINATION o r BASE PERIOD USAGE.— (1) F o r purposes of subsection (b) (4) ( A ) , an electric utility's base period usage of n a t u r a l gas shall be the sum of— •8CS8 .!. ( A ) the quantities of n a t u r a l gas used in calendar year 1976 by powerplants which are owned or operated by such utility and which were placed in service on or before J a n u a r y 1, 1976; plus ( B ) one-half of the quantities used d u r i n g the first 24 calen- dar-months after being placed in service by powerplants which are owned or operated by such utility and which were placed in service after J a n u a r y 1, 1976, and before the effective date of this Act. Higher (2) T h e Secretary may allow for the substitution of a higher per- percentage centage for the 20 percent specified in subparagraph ( A ) of subsection allowance. ^j^^ ^^^ jf ^^ determines t h a t the utility has demonstrated t h a t such higher percentage is necessary— (A) because of delays which occurred, despite diligent good faith efforts, in the construction of powerplants which will use a primary energy source other than natural gas, or (B) because it would not be feasible for such utility to comply with the requirements of such subsection (b) (4) in the absence of such higher percentage without impairing reliability of service. (f) DETERMINATION OF MINIMUM PEAKLOAD REQUIREMENT.—For purposes of subsection (b) (4) (B), an electric utility's minimum peak- load requirement for any calendar year shall be defined as the total kilowatt hours generated during the calendar year by natural gas on the system of the applicant electric utility company system divided by the aggregate capacity of all the electric powerplants in such system, but not to exceed 1,500 full-load hours per year. (g) APPROVAL OF NATURAL GAS CONTRACTS.—The Secretary shall approve any contract, or contract extension or renewal, for purposes of applying subsection ( b ) ( 5 ) ( B ) with respect to any plan, if he
PUBLIC LAW 95-620—NOV. 9, 1978 92 STAT. 3323 determines that the electric utility which submitted such plan has demonstrated that the quantities available under such contract, or extension or renewal, do not exceed those which are necessary to meet the requirements of the powerplants under such plan. The Secretary may not approve any contract, or extension or renewal, which provides for the delivery of such natural gas after December 31,1999. (h) TERMS AND CONDITIONS.—Any approval by the Secretary under subsection (b) shall be on such terms and conditions as the Secretary determines appropriate, including terms and conditions requiring the use of effective fuel conservation measures which are practicable and consistent with the purposes of this Act. TITLE VI—FINANCIAL ASSISTANCE SEC. 601. ASSISTANCE TO AREAS IMPACTED BY INCREASED COAL OR URANIUM PRODUCTION. (a) DESIGNATION OF IMPACTED AREAS.—(1) In accordance with such 42 u s e 8401. criteria and guidelines as the Secretary of Agriculture shall, by rule, prescribe, the Governor of any State may designate any area within such State for the purposes of this section, if he finds that— (A) either (i) employment in coal or uranium production development activities in such area has increased for the most recent calendar year by 8 percent or more from the immediately preceding year or (ii) employment in such activities will increase 8 percent or more per year during each of the 3 calendar years beginning after the date of such finding; (B) such employment increase has required or will require sub- stantial increases in housing or public facilities and services or a combination of both in such area; and (C) the State and the local government or governments serving such area lack the financial and other resources to meet any such increases in public facilities and services within a reasonable time. The Secretary of Agriculture shall prescribe a rule containing criteria Rule. and guidelines for making a designation under this subsection, after Consultation. consultation with the Secretary of Labor and the Secretary of Energy, not later than 180 days after the effective date of this Act. (2) For purposes of paragraph (1) (C), increased revenues, includ- ing severance tax revenues, royalties, and similar fees to the State and local governments which are associated with the increase in coal or uranium development activities and which are not prohibited from being used under provisions of law in effect on the date of the enact- ment of this Act shall be taken into account in determining if a State or local government lacks financial resources. (3) The Secretary shall, after consultation with the Secretary of Consultation Agriculture, approve any designation of an area under paragraph (1) only if— (A) the Governor of the State making the designation provides Written data and the Secretary in writing with the data and information on which information. such designation was made, together with such additional infor- mation as the Secretary may require to carry out the purposes of this section; and ismJfmmo-j (B) the Secretarv determines that the requirements of sub- paragraphs (A), (B), and (C) of paragraph (1) have been met. (b) PLANNING GRANTS.—;-(1) The Secretary of Agriculture may make a grant to any State in which there is an area designated and
92 STAT. 3324 PUBLIC LAW 95-620—NOV. 9, 1978 approved under subsection (a) for the purposes of developing a plan for such area which shall include determinations of— (A) the anticipated level of coal or uranium production activi- ties in such area; (B) the socio-economic impacts which have occurred or which are reasonably projected to occur as a result of the increase in coal or uranium production activities; (C) the availability and location of resources within such area to meet the increased needs resulting from socio-economic impacts determined under subparagraph (B) (such as any increased need for housing, or public facilities and services); and (D) the nature and expense of measures necessary to meet within a reasonable time the increased needs resulting from such impact for which there are no resources reasonably available other than under this section. (2) (A) Any grant for developing a plan under this subsection shall be for an amount equal to 100 percent of the costs of such plan, as determined by the Secretary of Agriculture. (B) The aggregate amount granted under this subsection in any fiscal year may not exceed 10 percent of the total amount appropriated for purposes of this section for such year. Plan copy, (3) The Governor of a State receiving a grant under this subsection submittal to for developing a plan shall submit a copy of such plan to the Secre- Secretary of tary of Agriculture as soon as practicable after it has been prepared. Agriculture. (c) LAND ACQUISITION AND DEVELOPMENT GRANTS.—(1) In the case of any real property— (A) within an area for which a plan meeting the requirements of subsection (b) (1) has been approved; (B) which is for housing or public facilities determined in such plan as necessary due to an increase in employment due to coal or uranium development activities; (C) with respect to which the Secretary of Agriculture has determined that the State and the local governments serving such area do not have the j&nancial resources to acquire or the legal authority to acquire by condemnation; and (D) with respect to which there has been an approval in writing by the Governor of such State that the Secretary of Agriculture exercise his authority under this paragraph; the Secretary of Agriculture may acquire such real property or inter- est therein, by purchase, donation, lease, or exchange. Property so acquired shall be transferred to the State under such terms and conditions as the Secretary of Agriculture deems appropriate. Such terms and conditions shall provide for the reimbursement to the Sec- retary of Agriculture for the fair market value of the property, as determined by the Secretary of Agriculture. The value of any improve- ment of such property made after such acquisition shall not be taken hna Bh into account in determining the fair market value of such property Treasury under this subsection. Amounts so received by the Secretary of Agri- deposits. culture shall be deposited in the Treasury of the United States as miscellaneous receipts. State (2) Any approval by a Governor of a State under paragraph (1) commitment. (D) shall constitute a binding commitment of such State to accept the property to be acquired and to provide reimbursement for the amount of the fair market value of such property, as determined under para- graph (1).
PUBLIC LAW 95-620—NOV. 9, 1978 92 STAT. 3325 (3) The Secretary of Agriculture may acquire property under para- graph (1) by condemnation only if he finds that— (A) such property is not available by means other than con- demnation at a price which does not substantially exceed the fair market value of such property; (B) other real property is not similarly available which is within the same designated area and which is suitable for the pur- poses to which the property involved is to be applied; and (C) the State and the local governments serving such area lack the legal authority to acquire such property by condemnation. (4) (A) In the case of any real property which meets the require- ments of subparagraphs (A), (B), and (C) of paragraph (1), the Secretary of Agriculture may make a grant to the State in which such property is located for the purposes of acquiring such property, and for any site development which is consistent with the plan developed under subsection (b). ',- , (B) In the case of property acquired by the Secretary of Agricul- ture under paragraph (1) and transferred to the State, the Secretary of Agriculture may make a grant to such unit of government for the purposes of site development which is consistent with such plan. (C) Grants for real property acquisition or site development or both under this paragraph may not exceed 75 percent of the costs thereof, as determined by the Secretary of xVgriculture. (5) In the selection of real property for acquisition and in such acquisition under this subsection, preference shall be given to real property which the Secretary of Agriculture determines at such time to be unoccupied or previously mined and abandoned. (6) (A) Property held by the United States in trust for Indians or Indian property any Indian tribe may not be acquired by condemnation under this section. (B) No property within the National Forest System (as defined in National Forest section 10 of the Forest and Rangeland Renewable Resources Planning property. Act of 1974) may be exchanged by the Secretary in any acquisition 16 use 1608. under paragraph (1). (d) GENERAL REQUIREMENTS REGARDING ASSISTANCE.—(1) Assist- ance under this section shall be provided only upon application, which application shall contain such information as the Secretary of Agri- culture shall prescribe. (2) The Secretary of Agriculture may make any grant under this section in whole or in part to the local government or governments serving an area designated and approved under subsection (a), or to a council of local governments which includes one or more local gov- ernments serving such area (in lieu of making such grant solely to the State), if he has determined, after consultation with the Governor of the State, that to do so would be appropriate. (3) The iSecretary of Agriculture shall prescribe, by rule, criteria Allocation for the allocation of assistance under this section. Such criteria shall criteria. give due weight to the magnitude of the emplo5^ment increase involved, the financial resources of the designated area, and the ratio of the financial burden on the area to the resources available to such area. (4) Assistance under this section shall be provided only if the Sec- retary of Agriculture is satisfied that— (A) the amounts expended by the State and the local govern- ments involved for the same purposes for which such assistance is provided will not be reduced; and
92 STAT. 3326 PUBLIC LAW 95-620—NOV. 9, 1978 (B) the amount of such assistance does not reflect any amount for which other Federal financial assistance is provided or on proper application would be provided. (e) DEFiisriTioNS.—For the purposes of this section— (1) The term "coal or uranium development activities" means the production, processing, or transportation of coal or uranium. (2) The term "site development" means necessary off-site improvements, such as the construction of sewer and water connec- tions, construction of access roads, and appropriate site restora- tion, but does not include any portion of the construction of housing or public facilities. Transmittal to (f) REPORTS.—Any person regularly engaged in any coal or uranium Secretary of development activity within an area designated and approved under Energy. subsection (a) sihall prepare and transmit a report to the Secretary of Energy within 90 days after a written request to such person by the Contents. Governor of the State in which such area is located. Such report shall include— (1) projected employment levels for such activity by such per- son within such area during each of the following 3 calendar years; (2) the projected increase in employees in such area to engage in such activity during each of such calendar years; (3) the projected quantity of coal (or uranium) to be produced, processed, or transported by such person during each of such calendar years; and (4) actions such companies plan to take or are taking to provide needed housing and other facilities for their employees directly or by providing funds to the States or local communities for this purpose. Copies, Copies of the report shall be provided to the Secretary of Energy availability and and the Secretary shall, subject to the provisions of section 11(d) of public review. the Energy Supply and Environmental Coordination Act of 1974, pro- 15 u s e 796. vide the report to the Secretaiy of Agriculture, the Governor, and the appropriate county or local officials and make it available for public review. (g) ADMINISTRATION.—The Secretary of Agriculture shall carry out nis responsibilities under this section through the Farmers Home Administration and such other agencies within the Department of Agriculture as he may determine appropriate. (h) APPROPRIATIONS AUTHORIZATION.—(1) There is hereby author- ized to be appropriated to the Secretary of Energy for purposes of this section, $60,000,000 for fiscal year 1979 and $120,000,000 for Agreement, fiscal year 1980. The Secretary of Energy and the Secretary of Agri- funds allocation culture shall enter into an agreement for the allocation of funds ap- and transfer. propriated pursuant to this section for carrying out their respective responsibilities under this section, including the amounts for personnel and administrative costs, and upon such agreement, the Secretary of Energy shall transfer to the Secretary of Agriculture amounts deter- mined under that agreement. (i) PROTECTION FROM CERTAIN HAZARDOUS ACTIONS.—Federal agen- cies having responsibilities concerning the health and safety of any person working in any coal, uranium, metal, or nonmetallic mine regu- lated by any Federal agency shall interpret and utilize their author- ities fully and promptly, including the promulgation of standards and regulations, to protect existing and future housing, property, persons, and public facilities located adjacent to or near active and abandoned
PUBLIC LAW 95-620—NOV. 9, 1978 92 STAT. 3327 coal, uranium, metal, and nonmetallic mines from actions occurring at such activities that pose a hazard to such property or persons. (j) KEORGANIZATION.—The authority of the Secretary of Agriculture and the authority of the Secretary of Energy under this section may not be transferred to any other Secretary or to any other Federal agency under chapter 9 of title 5, United States Code, or under any 5 USC 901 et seq. other provision of law, other than under specific provisions of a law enacted after the date of the enactment of this Act. The preceding pro- visions of this subsection shall not preclude either Secretary from dele- gating any such authority to any officer, employee, or entity within such Secretary's department. SEC. 602. LOANS TO ASSIST POWERPLANT ACQUISITIONS OF AIR POLLUTION CONTROL EQUIPMENT. (a) AUTHORITY To MAKE LOANS.—The Secretary may, in accordance 42 USC 8402. with the provisions of this section and such rules and regulations as he shall prescribe, make a loan (and may make a commitment to loan) '8U 21^ to any person who owns or operates any existing electric powerplant •^^''" converting to coal or other alternate fuel as its primary energy source after the eifective date of this Act for the purpose of financing the purchase and installation of one or more certified air pollution control devices for such electric powerplant. (b) LIMITATIONS AND CONDITIONS.—A loan made under this section shall— (1) not exceed two-thirds of the cost of purchasing and install- ing the certified air pollution control devices; (2) have a maturity date not extending beyond 10 years after the date such loan is made; (3) bear interest at a rat^ not less than (A) a rate determined Interest rate, by the Secretary of the Treasury, taking into consideration the average market yield of outstanding Treasury obligations of com- parable maturity, plus (B) 1 percent; (4) be made on the condition of payment to the Secretary of a loan fee in an amount equal to (A) such insurance fee as the Secre- tary determines is necessary to avoid a Federal revenue loss under this section, plus (B) 1 percent of the loan amount; and .. (5) be made only if the Secretary finds that— to noii (A) the financial assistance applied for is not othervHfse niJ 'available from other Federal agencies; .eaaoo/ ihau (B) the applicant is unable to obtain sufficient funds on reasonable terms and conditions from any other source; io9'[oiq (C) there is continued reasonable assurance of full repay- ment of the principal, interest, and fees; and D&£ii am (D) competition among private entities for the provision of air pollution control devices for electric powerplants using ^a& o coal as their primary energy source to be assisted under this 9rft r? section will be in no way limited or precluded. (c) ALLOCATION AND PRIORITIES.—In making loans or commitments to loan pursuant to this section, the Secretary shall— adiv (1) allocate a minimum of 25 percent of available financial -noH assistance to existing small municipal and rural powerplants; and (2) give priority consideration to requests for financial assist- ance by existing electric powerplants subject to any prohibition ^^ under title I I I (or under section 2 of the Energy Supply and ^»'e, p. 3305. ^•^ EnvironmentalCoordination Actof 1974). > I'-'j (.i JJ .'S>IG! j.u-; 15 USC 792. (d) DEFINITIONS.—For purposes of this section-^osB edJ x6 b9iq9oofi
HmM'^ tlM.IC LAW 95-620—NOV. 9, 1978 •gan'ini(^t^ The term "certified pollution control device" means a new identifiable device which— 9'inili (A) is used, in connection with a powerplant, to abate or \&m A control atmospheric pollution by removing, altering, dispos- Isiidh ing^ storing, or preventing the emission of pollutants; .^a?. S3 lOQ 3 g U ^ Xns •! (B) the appropriate State air pollution control agency has wi5l i certified to the Administrator of the Environmental Protec- -oiq ; tion Agency that such device is needed to meet, and is in con- -aldh i'i^> formity with, State requirements for abatement or control of nifItrv/^ '{atmospheric pollution or contamination; (C) the Administrator of the Environmental Protection flIA 10 Agency has certified to the Secretary as not duplicating or displacing existing air pollution control devices with a .20*8 :)81J 21^ aonnbTooremaining useful economic life in excess of 2 years and as aJ3 8ff' otherwise being in furtherance of the requirements and pur- 42 use 7401 (nx50 i poses of the Clean Air Act; note. tofilq (D) does not constitute or include a building, or a struc- aoiur; tural component of a building, other than a building used odi ^. exclusively for the purposes set forth in subparagraph ( A ) ; lo'iinoo ijand (E) the construction of which began after the effective noiio98 sJiiateofthisAct. (2) The term "small municipal or rural cooperative electric -Ikd|K)NPerplant" means an electric generating unit, which— (A) by design is not capable of consuming fuel at a fuel IQ^IB gixiheat input rate in excess of a rate determined appropriate by the Secretary by rule; and .3iBi J89i9jnl bsnimiat: (B) is owned or operated by a municipality or a rural Qdi noiixslectric cooperative. frf(Te&)^RBG0RDS.—(1) The Secretary shall require all persons receiving financial assistance under this section to keep such records as the Sec- retary shall prescribe, including records which fully disclose the amount and disposition by such recipient of the proceeds of such assistance, the total cost of the project or undertaking in connection with which such assistance was given or used, the amount of that por- tion of the cost of the project or undertaking supplied by other sources, and such other records as will facilitate an effective audit. Access. (2) The Secretary and the Comptroller General of the United States, or any of their duly authorized representatives, shall, until the later of— -'l&cp (A) the expiration of 3 years after completion of the project or undertaking referred to in subsection (a), or noiei (B) full repayment of interest and principal o^i^ loan made Tjnigjunder this section, occurs, q -nn io ha've access for the purposes of audit, evaluation, examination to any books, documents, papers, and records of such receipts which in the opinion of the Secretary or the Comptroller General may be related or pertinent to such loan. JL (f) DEFAULT.—(1) If there is a default in any pajmient by the obligor of interest or principal due under a loan entered into by the Sec- retary under this section and such default has continued for 90 days, the Secretary has the right to demand payment of such unpaid amount, .2088 .q .bisik unless the Secretary finds that such default has been remedied, or a .2QVDeiJSl satisfactory plan to remedy such 4§fewJfe.tewtii^„ftl>Mg<?y^)iag^been accepted by the Secretary. aaaoqiyq 'lo^—.avioiTi-^iiaa (b)
PUBLIC LAW 95-620—NOV. 9, 1 9 7 8 92 STAT. 3329 (2) I n demanding payment of unpaid interest or principal by t h e obligor, the Secretary has all rights specified in the loan-related agree- ments with respect t o any security which he held with respect t o t h e loan, including the authority to complete, maintain, operate, lease, sell, or otherwise dispose of a n y property acquired pursuant to such loan or related agreements. (3) I f there is a default under any loan, the Secretary shall notify Notification of the A t t o r n e y General who shall take such action against t h e obligator Attorney or other parties liable thereunder as is, in his discretion, necessary to General. protect the interests of the United States. T h e holder of such loan shall make available to the United States all records and evidence necessary to prosecute any such suit. ( g ) DEPOSIT o r RECEIPTS.—Amounts received by t h e Secretary as principal, interest, fees, proceeds from security acquired following default, or other amounts received by the Secretary in connection with loans made under this section shall be paid into the Treasury of t h e United States as miscellaneous receipts. ( h ) AUTHORIZATION OF APPROPRIATION.—There are hereby author- ized t o be appropriated to the Secretary such sums as may be necessary to carry out the purposes of this section, b u t not to exceed $400,000,000 for fiscal year 1979 a n d $400,000,000 for fiscal year 1980. A u t h o r i t y granted to t h e Secretary under subsection (a) m a y be exercised only to t h e extent as m a y be provided in advance in appropriation Acts. ^ ; TITLE VII—ADMINISTRATION AND ENFORCEMENT Subtitle A—Procedures SEC. 701. ADMINISTRATIVE PROCEDURES. ( a ) GENERAL K U L E M A K I N G . — E x c e p t to t h e extent otherwise p r o - 42 USC 8411 vided in this section or other provisions of this Act, rules prescribed under this A c t shall be made in accordance with t h e procedures set forth in section 553 of title 5, United States Code. (b) NOTICES OF K U L E S AND ORDERS IMPOSING PROHIBITIONS.—Before Publication in the Secretary prescribes any rule or issues a n y order imposing a pro- Federal Register. hibition under this Act (other t h a n under section 402), he shall publish such proposed rule or order in t h e Federal Register, together with a statement of t h e reasons for such rule or order and, in t h e case of a rule, a detailed statement of a n y special circumstances o r character- istics required t o be taken into account in prescribing such rule. A copy shall be transmitted t o t h e person who operates a n y such power- plant or installation required t o be specifically identified in such rule or order. (c) PETITIONS FOR E X E M P T I O N S . — ( 1 ) A n y petition for an exemption from a n y prohibition under this A c t or for a n y permit under section 405, shall be filed a t such time a n d shall be in such form as t h e Secre- t a r y shall by rule prescribe. T h e Secretary, upon receipt of such peti- Publication in tion, shall publish a notice thereof in t h e Federal Register together Federal Register. with a statement of t h e reasons set forth in such a petition for Public comment period. requesting such exemption or permit, a n d provide a period of public comment of a t least 45 days for written comments thereon. Rules required under t h i s p a r a g r a p h shall be prescribed n o t later than 120 days after the date of the enactment of this Act.
92 STAT. 3330 PUBLIC LAW 95-620—NOV. 9, 1978 (2) The Secretary, upon receipt of such petition, shall notify the appropriate State agencies having primary authority to permit or reg- ulate the construction or operation of the electric powerplant or, where appropriate, major fuel-burning installation which is the subject of such petition, and, to the maximum extent practicable, consult with such agencies. Publication in (3) The Secretary, within 6 months after the period for public com- Federal Register. ment and hearing applicable to any petition for an exemption or per- mit, shall issue a final order granting or denying the petition for such exemption or permit, except that the Secretary may extend such period to a specified date if he publishes notice thereof in the Federal Register and includes with such notice a statement of the reasons for such extension. (4) Any order for the approval of a system compliance plan under section 501, and any petition for such an order, shall be treated for purposes of this title the same as an order (or petition) for an exemption. (d) PUBLIC COMMENT OX PROHIBITIOXS AND EXEMPTIONS.— (1) In the case of any proposed rule or order by the Secretary imposing a pro- hibition or any petition for any order granting an exemption (or per- mit) under this Act (other than under section 402), any interested person shall be afforded an opportunity to present oral data, views, Public hearing. and arguments at a public hearing. At such hearing any interested person shall have an opportunity to question— (A) other interested persons who make oral presentations, (B) employees and contractors of the United States who have made written or oral presentations or who have participated in the development of the proposed rule or order or in the considera- tion of such petition, and (C) experts and consultants who have provided information to any person who makes an oral presentation and which is con- tained in or referred to in such presentation, with respect to disputed issues of material fact, except that the Secre- tary may restrict questioning if he determines that such questioning is duplicative or is not likely to result in a timely and effective resolu- Evidence. tion of such issues. Any oral or documentary evidence may be received, but the Secretary as a matter of policy shall provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence. (2) A rule or order subject to this section may not be issued except on consideration of the whole record or those parts thereof cited by a party and supported by and in accordance with the reliable, probative, and substantial evidence. (e) TRANSCRIPT.—A transcript shall be kept of any public hearing made in accordance with this section. (f) ENVIRONMENTAL PROTECTION AGENCY COMMENT.—A copy of any proposed rule or order to be prescribed or issued by the Secretary which imposes a prohibition under this Act (other than under section 402 or 404), or a petition for an exemption (or permit) under this Act (other than under section 402 or 404), shall be transmitted by the Sec- retary to the Administrator of the Environmental Protection Agency and the Secretary shall request such agency to comment thereon within the period provided to the public unless a longer period is provided 42 u s e 7401 under the Clean Air Act. In any such case, the Administrator of the note. Environmental Protection Agency shall be afforded the same oppor-
PUBLIC LAW 95-620—NOV. 9, 1978 92 STAT. 3331 tunity to comment and question as is provided other interested persons under subsection (d). (g) FEDERAL TRADE COMMISSION COMMENT.—A copy of any pro- posed rule or order to be prescribed or issued by the Secretary which imposes a prohibition under this Act (other than under section 402 or 404) with respect to a major fuel-burning installation or a boiler sub- ject to section 401 or a petition by such installation or boiler for an exemption (or permit) under this Act (other than under section 402 or 404), shall be transmitted by the Secretary to the Federal Trade Com- mission and the Secretary shall request such Commission to comment thereon within the period provided to the public. In any such case, the Federal Trade Commission shall be afforded the same opportunity to comment and question as is provided other interested persons under subsection (d). (h) COORDINATION W I T H OTHER PROVISIONS OF LAW.—(1) Except as provided in sections 702(c) (4), 723 (d) (5), and 724 of this Act, title V of the Department of Energy Organization Act (42 TJ.S.C. 7191, et seq.) shall not apply with respect to this Act. (2) The preceding provisions of this section shall not apply with respect to any exercise of authority under section 404. (3) The procedures applicable under this Act shall not— (A) be considered to be modified or affected by any other pro- vision of law unless such other provision specifically amends this Act (or provisions of law cited herein), or (B) be considered to be superseded by any other provision of law unless such other provision does so in specific terms, referring to this Act, and declaring that such provision supersedes, in whole or in part, the procedures of this Act. SEC. 702. JUDICIAL REVIEW. (a) PUBLICATION AND DELAY OF PROHIBITION OR EXEMPTION TO 42 use 8412. ALLOW FOR REVIEW.—Any final rule or order prescribed by the Secre- Publication in tary imposing a prohibition or granting an exemption (or permit) Federal Register. under this Act shall be published in the Federal Register, and shall not take effect earlier than the 60th calendar day after such rule or order is published. (b) PUBLICATION OF DENIAL OF EXEMPTION OR PERMIT.—^Any final Publication in order issued by the Secretary denying any petition for an exemption Federal Register. or a permit under this Act shall be published in the Federal Register, together with the reasons for such action. (c) JUDICIAL REVIEW.—(1) Any person aggrieved by any final rule or order referred to in subsection (a) or in section 404, or by the denial of a petition for an order granting an exemption (or permit) referred to in subsection (b), may at any time before the 60th day after the date such rule, order, or denial is published under subsection (a) or (b), file a petition with the United States court of appeals for the circuit wherein such person resides, or has his principal place of business, for judicial review thereof. A copy of the petition shall be forthwith trans- Transmittal to mitted by the clerk of the court to the Secretary. The Secretary there- Secretary. upon shall file in the court the written submissions to, and transcript Written of, the written or oral proceedings on which the rule or order was based submissions and transcript. as provided in section 2112 of title 28, United States Code. (2) Upon the filing of the petition referred to in paragraph (1), the court shall have jurisdiction to review the rule, order, or denial in accordance with chapter 7 of title 5, United States Code, and to 5 u s e 701 et seq.
92 STAT. 3332 PUBLIC LAW 95-620—NOV. 9, 1978 grant appropriate relief as provided in such chapter. No rule or order (or denial thereof) may be affirmed unless supported by substantial evidence. (3) The judgment of the court affirming or setting aside, in whole or in part, any such rule, order, or denial shall be final, subject to review by the Supreme Court of the United States upon certiorari or certifica- tion as provided in section 1254 of title 28, United States Code. (4) Subject to the direction and control of the Attorney Greneral, as provided in section 519 of title 28, United States Code, attorneys appointed by the Secretary may appear for and represent the Secretary in any proceeding instituted under this section in accordance with 42 use 7192. section 502(c) of the Department of Energy Organization Act. Subtitle B—^Information and Reporting SEC. 711. INFORMATION. 42 use 8421. (a) AuTHORiTT OP SECRETARY.—For purposes of carrying out his responsibilities under this Act, the Secretary may require, under the authority of this Act or any other authority administered by him, any person owning, operating or controlling any electric powerplant or major fuel-burning installation, or any other person otherwise subject to this Act to submit such information and reports of any kind or nature directly to the Secretary necessary to implement the provisions of this Act and insure compliance with the provisions of this Act, and any rule or order thereunder. The provisions of section 11(d) of the 15 use 796. Energy Supply and Environmental Coordination Act of 1974 shall apply with respect to information obtained under this section to the same extent and in the same manner as it applies with respect to energy information obtained under section 11 of such Act. (b) AUTHORITY OF PRESIDENT AND FEDERAL ENERGY REGULATORY COMMISSION.—In the case of responsibilities expressly given by this Act to the President or the Federal Energy Eegulatory Commission, subsection (a) shall be applied as if the references to the Secretary were references to the President or the Federal Energy Regulatory Commission, as the case may be. SEC. 712. COMPLIANCE REPORT. 42 use 8422. Any person owning, operating, or proposing to operate one or more existing electric powerplants required to come into compliance with the prohibitions of this Act shall on or before January 1, 1980, and annually thereafter, submit to the Secretary a report identifying all such existing electric powerplants owned or operated by such person. eontents. Suoh report ^hall— (1) set forth the anticipated schedule for compliance with the applicable requirements and prohibitions by each such electric powerplant; (2) indicate proposed or existing contracts or other com- mitments or good faith negotiations for such contracts or com- mitments for coal or another alternate fuel, equipment, or combinations thereof, which would enable such powerplant to comply with such prohibitions; and (3) identify those electric powerplants, if any, for which application for temporary or permanent exemption from the ,; ; :)"; r prohibitions of this Act may be filed. r
PUBLIC LAW 95-620—NOV. 9, 1978 92 STAT. 3333 Subtitle C—Enforcement SEC. 721. NOTICE OF VIOLATION; OTHER GENERAL PROVISIONS. (a) NOTICE OF VIOLATION.—(1) Whenever, on the basis of any infor- 42 USC 8431. mation available, t h e Secretary finds t h a t any person is in violation of any provision of this Act, or any rule or order thereunder, the Sec- retary shall issue notice of such violation. A n y notice issued under this subsection shall be in writing and shall state with reasonable specificity the nature of the violation. (2) P a r a g r a p h (1) shall not be construed to relieve any person of liability under the other provisions of this Act for any act or omission occurring before the issuance of notice. (b) INDIVIDUAL LIABILITY OF CORPORATE P E R S O N N E L . — A n y individ- ual director, officer, or agent of a corporation who willfully authorizes, orders, or performs any of t h e acts or practices constituting in whole or in p a r t a violation of this Act, or any rule or order thereunder, shall be subject t o penalties under this section without regard t o any penal- ties to which t h e corporation m a y be subject, except t h a t no such individual director, officer, or agent shall be subject to imprisonment under section 722, unless he also knew of noncompliance by t h e corpo- ration or h a d received from t h e Secretary notice of noncompliance by the corporation. (c) LIABILITY FOR CERTAIN PEAKLOAD OPERATION.—No person shall be subject to any penalty under this subtitle with respect to the opera- tion of any powerplant in excess of t h a t allowed by an exemption granted on the basis of the operation of such powerplant as a peakload powerplant if it is demonstrated to t h e Secretary t h a t such operation was necessary to meet peakload demand and that other peakload powerplants v;ithin t h e same system as such powerplant— (1) were unavailable for service— ( A ) due to unit or system outages; or ( B ) because operation of such other powerplants would result in their exceeding the hours of operation allowed under ae.;^ , ., A an exemption; and (2) have not been operated other than to meet peakload demand. ( d ) FEDERAL A G E N C I E S . — T h e provisions of sections 722 a n d 723 shall not be construed to apply to any Federal agency or officer or employee thereof acting in his official capacity. SEC. 722. CRIMINAL PENALTIES. A n y person who willfully violates any provision of this Act (other 42 USC 8432. t h a n section 402), or any rule or order thereunder, shall be subject to a fine of not more than $50,000, or to imprisonment for not more than one year, or both, for each violation. SEC. 723. CIVIL PENALTIES. ( a ) GENERAL C I V I L P E N A L T Y . — A n y person who violates a n y provi- 42 USC 8433. sion of this Act (other than section 402), or rule or order thereunder, shall be subject to a civil penalty, which shall be assessed by t h e Sec- retary, of not more t h a n $25,000 for each violation. Each day of viola- tion shall constitute a separate violation. ( b ) C I V I L P E N A L T I E S FOR OPERATION OR U S E OF F U E L S I N EXCESS OF E X E M P T I O N . — ( 1 ) I n the case of a n y electric powerplant granted a n • exemption, a n y person who operates such powerplant d u r i n g a n y 12-calendar-month period in excess of t h a t authorized in such exemp- tion, shall be liable for a civil penalty, which shall be assessed by t h e Secretary. T h e amount of such civil penalty may n o t exceed $10 p e r '
92 STAT. 3334 PUBLIC LAW 95-620—NOV. 9, 1978 barrel of petroleum or $3 per Mcf of natural gas used in operation of such powerplant in excess of that authorized in such exemption. (2) Any person operating a major fuel-burning installation granted an exemption which, for any 12-calendar-month period, uses petro- leum or natural gas, or both, in excess of that use allowed by such exemption shall be liable for a civil penalty, which shall be assessed by the Secretary. The amount of such civil penalty may not exceed $10 per barrel of petroleum or $3 per Mcf of natural gas which was used in excess of that use allowed by such exemption. (c) PENALTIES FOR VIOLATION OF SECTION 402.— (1) Any person who violates any prohibition under subsection (b) (1) of section 402 with respect to providing of natural gas service to any person for use in outdoor lighting shall be subject to a civil penalty, which shall be assessed by the Secretary and which shall not exceed $500 for each outdoor lighting fixture involved. (2) Any industrial user who violates prohibition under subsection (b) (2) of section 402 shall be subject to a civil penalty, which shall be assessed by the Secretary and which shall not exceed $500 per day of violation for each outdoor lighting fixture involved which was used by an industrial customer, but not to exceed $5,000 per outdoor lighting fixture involved. (3) The penalties under this subsection shall only apply in the case of a violation by any person who at the time of the violation had knowledge or reasonably should have had knowledge that the action involved was prohibited under section 402. (d) ASSESSMENT.— (1) Before issuing an order assessing a civil penalty against any person under this Act, the Secretary ^ a l l pro- vide to such person notice of the proposed penalty. Such notice ^ a l l inform such person of his opportunity to elect in writing within 30 days after the date of receipt of such notice to have the procedures of paragraph (3) (in lieu of those of paragraph (2)) apply with respect to such assessment. Agency hearing. (2) (A) Unless an election is made within 30 calendar days after receipt of notice under paragraph (1) to have paragraph (3) apply with respect to such penalty, the Secretary shall assess the penalty, by order, after a determination of violation has been made on the record after an opportunity for an agency hearing pursuant to section 554 of title 5, XJnited States Code, before an administrative law judge appointed under section 3105 of such title 5. Such assessment order shall include the administrative law judge's findings and the basis for such assessment. (B) Any person against whom a penalty is assessed under this para- graph may, within 60 calendar dajrs after the date of the order of the Secretary assessing such penalty, institute an action in the United 5 u s e 701 note. States court of appeals for the appropriate judicial circuit for judicial review of such order in accordance with chapter 7 of title 5, United States Code. The court shall have jurisdiction to enter a judgment affirming, modifying, or setting aside in whole or in part, the order of the Secretary, or the court may remand the proceeding to the Secre- tary for such further action as the court may direct. (3) (A) In the case of any civil penalty with respect to which the procedures of this paragraph have been elected, the Secretary shall promptly assess such penalty, by order, after the date of the receipt of the notice under paragraph (1) of the proposed penalty. Payment. (B) If the civil penalty has not been paid within 60 calendar days after the assessment order has been made under subparagraph (A),
PUBLIC LAW 95-620—NOV. 9, 1978 92 STAT. 3335 the Secretary shall institute an action in the appropriate district court of the United States for an order affirming the assessment of the civil penalty. The court shall have authority to review de novo the law and the facts involved, and shall have jurisdiction to enter a judgment enforcing, modifying, and enforcing as so modified, or setting aside in whole or in part, such assessment. (C) Any election to have this paragraph apply may not be revoked except with the consent of the Secretary. (4) If any person fails to pay an assessment of a civil penalty after Failure to pay. it has become a final and unappealable order under paragraph (2), or after the appropriate district court has entered final judgment in favor of the Secretary under paragraph (3), the Secretary shall institute an action to recover the amount of such penalty in any appro- priate district court of the United States. In such action, the validity and appropriateness of such final assessment order or judgment shall not be subject to review. (5) (A) Notwithstanding the provisions of title 28, United States Code, or of section 502 (c) of the Department of Energy Organization Act, the Secretary shall be represented by the general counsel of the 42 USC 7192. Department of Energy (or any attorney or attorneys within the Department of Energy designated by the Secretary) who shall super- vise, conduct, and argue any civil litigation to which paragraph (3) of this subsection applies (including any related collection action under paragraph (4)) in a court of the United States or in any other court, except the Supreme Court. However, the Secretary or the general coun- sel shall consult with the Attorney General concerning such litigation, and the Attorney General shall provide, on request, such assistance in the conduct of such litigation as may be appropriate. (B) Subject to the provisions of section 502(c) of the Department of Energy Organization Act, the Secretary shall be represented by the Attorney General, or the Solicitor General, as appropriate, in actions under this subsection, except to the extent provided in subpara- graph (A) of this paragraph. (C) Section 402(d) of the Department of Energy Organization Act shall not apply with respect to the functions of the Secretary 42 USC 7172. under this subsection. SEC. 724. INJUNCTIONS AND OTHER EQUITABLE RELIEF. Whenever it appears to the Secretary that any person has engaged, 42 USC 8434. is engaged, or is about to engage in acts or practices constituting a violation of this Act, or any rule or order thereunder, a civil action, may be brought, in accordance with section 502(c) of the Department of Energy Organization Act, in the appropriate district court of 42 USC 7192. the United States to enjoin such acts or practices, and, upon a proper showing, the court shall grant, without bond, mandatory or prohibitive injunctive relief, including interim equitable relief. SEC. 725. CITIZENS SUITS. (a) GENERAL RULE.—Except as otherwise provided in subsection 42 USC 8435. (b), any aggrieved person may commence a civil action for manda- tory or prohibitive injunctive relief, including interim equitable relief, against the Secretary or the head of any Federal agency which has a responsibility under this Act if there is an alleged failure of the Sec- retary or such agency head to perform any act or duty under this Act which is not discretionary. The United States district courts shall have jurisdiction over actions brought under this section, without regard to the amount in controversy or the citizenship of the parties.
92 STAT. 3336 PUBLIC LAW 95-620—NOV. 9, 1978 (b) NOTICE TO SECRETARY OR AGENCY HEAD.—^No action may be commenced under subsection (a) before the 60th calendar day after the date on which the plaintiff has given notice of such action to the Secretary or the agency head involved. Notice under this subsection shall be given in such manner as the Secretary shall prescribe by rule. (c) AUTHORITY OF SECRETARY To INTERVENE.—In any action brought under subsection (a), the Secretary, if not a party, may inter- vene as a matter of right. ' (d)' COSTS OF LITIGATION.—The court, in issuing any final order in any action brought under subsection (a), may award costs of litiga- tion (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate. (e) OTHER REMEDIES T O REMAIN AVAILABLE.—Nothing in this section shall restrict any right which any aggrieved person (or class of aggrieved persons) may have under any statute or common law to seek enforcement of this Act or any rule thereunder, or to seek any other relief (including relief against the Secretary or the agency head involved). Subtitle D—Preservation of Contractual Rights SEC. 731. PRESERVATION OF CONTRACTUAL INTEREST. 42 use 8441. (a) RIGHT To TRANSFER CONTRACTUAL INTERESTS.—(1) I f any per- son receives natural ^as, the use of which is prohibited by the pro- visions of title I I or title I I I or any rule or order thereunder, and if such natural gas is received pursuant to a contract in effect on April 20, 19T7, between such person and any other person, such person receiving such natural gas may transfer all or any portion of such person's con- tractual interests under such contract and receive consideration from the person to whom such contractual interests are transferred. The consideration authorized by this subsection shall not exceed the maxi- mum consideration established as just compensation under this section. (2) Any person who would have transported or distributed the natural gas subject to a contract with respect to which contractual interests are transferred pursuant to paragraph (1) shall be entitled to receive just compensation (as determined by the Commission) from the person to whom such contractual interests are transferred. (b) DETERMINATION OF CONSIDERATION.—(1) The Commission shall, by rule, establish guidelines for the application on a regional or 'i national basis (as may be appropriate) of the criteria specified in sub- section (e) (1) to determine the maximum consideration permitted as just compensation under this section. (2) The person transferring contractual interests pursuant to sub- section (a) (1) and the person to whom such interests are transferred may agree on the amount of, or method of determining, the considera- tion to be paid for such transfer and certify such consideration to the Commission. Except as provided in paragraph (4), such agreed-upon consideration shall not exceed the consideration determined by appli- cation of the guidelines prescribed by the Commission under para- graph (1). (3) I n the event the person transferring contractual interests pur- suant to subsection (a) (1) and the person to whom such interests are to be transferred fail to agree, under paragraph (2), on the amount of, or method of determining, the consideration to be paid for such trans-
PUBLIC LAW 95-620—NOV. 9, 1978 92 STAT. 3337 fer, t h e Commission may, a t the request of both such persons, prescribe t h e amount of, o r method of determining, such consideration. U p o n Agency hearing, t h e request of either such person, t h e Commission shall make such determination on the record, after an opportunity for agency hearing. I n any such latter case, the determination of t h e Commission shall be binding upon the p a r t y requesting t h a t such determination be made on the record of the agency hearing. The consideration prescribed by t h e Commission shall not exceed the maximum consideration permitted as just compensation under this section. I n prescribing the amoimt of, or method of determining, consideration under this p a r a g r a p h , t o t h e m a x i m u m extent practicable, t h e Commission shall utilize any liqui- dated damages provision set forth in the applicable contract, but in no event m a y t h e Commission prescribe consideration in excess of the maximum consideration permitted as just compensation imder this section. (4) I n t h e event t h a t t h e consideration agreed upon under para- g r a p h (2) exceeds the consideration determined by application of the guidelines prescribed by t h e Commission under p a r a g r a p h ( 1 ) , t h e Commission may approve such agreed-upon consideration if t h e Com- mission determines such agreed-upon consideration does n o t exceed the maximum consideration permitted as just compensation under this section. (5) I f consideration is agreed upon under p a r a g r a p h (2) a n d such consideration exceeds t h e consideration determined by application of t h e guidelines prescribed under p a r a g r a p h ( 1 ) , b u t does n o t exceed the maximum consideration permitted as just compensation under this section, the Commission may not require a refund of any portion of the agreed-upon consideration paid with respect t o deliveries of natural gas occurring prior t o t h e Commission's action under p a r a g r a p h (4) approving or disapproving such consideration unless the Commission determines— (A) such agreed-upon consideration was fraudulently established; ( B ) t h e processing of the request for approval of such agreed- upon consideration under p a r a g r a p h (4) was willfully delayed by a p a r t y t o t h e transfer; or (C) such agreed-upon consideration exceeds the maximum con- sideration permitted as just compensation under this section. (c) RESTRICTIONS ON TRANSFERS UNENFORCEABLE.— (1) A n y p r o - vision of any contract, which prohibits any transfer authorized by subsection (a) (1) or terminates such contract on the basis of such transfer, shall be unenforceable in any court of the United States and in any court of any State. (2) No State may enforce any prohibition on any tiansfer author- ized by subsection ( a ) ( 1 ) . ( d ) CONTRACTUAL OBLIGATIONS UNAFFECTED.—The person acquiring contractual interests transferred pursuant t o subsection (a) (1) shall assume the contractual obligations which the person transferring such contractual interests h a s under such contract. This subsection shall not relieve the person transferring such contractual interests from any contractual obligation of such person under such contract if such obligation is not performed b y t h e person acquiring such contractual • ' interests. (e) D E F I N I T I O N S . — F o r purposes of this section— (1) The term "just compensation", when used with respect t o any transfer of contractual interests authorized by subsection ( a ) ( 1 ) , 39-194 O—80—pt. 3 45 : QL3
92 STAT. 3338 PUBLIC LAW 95-620—NOV. 9, 1978 means the maximum amount of, or method of determining, considera- tion which does not exceed the amount by which— (A) the reasonable costs (excluding capital costs) incurred, during the remainder of the period of the contract with respect to which contractual interests are transferred under subsection (a)(1), in direct association with the use of a fuel, other than natural gas, as a primary energy source by the applicable exist- ing electric powerplant or major fuel-burning installation, exceed (B) the price of natural gas under such contract during such period. For purposes of subparagraph (A), the reasonable costs associated with the use of a fuel, other than natural gas, as a primary energy source shall include an allowance for the amortization, over the remaining useful life, of the undepreciated value of depreciable assets located on the premises containing such electric powerplant or major fuel burning installation, which assets were directly associated with the use of natural gas and are not usable in connection with the use of such other fuel. (2) The term "just compensation", when used with respect to sub- section (a) (2), means an amount equal to any loss of revenue, during the remaining period of the contract with respect to which contractual interests are transferred pursuant to subsection (a) (1), to the extent such loss (A) is directly incurred by reason of the discontinuation of the transportation or distribution of natural gas resulting from the transfer of contractual interests pursuant to subsection (a) (1), and (B) is not offset by revenues derived from other transportation or dis- tribution which would not have occurred if such contractual interests had not been transferred. (3) The terra "contractual interests", with respect to a contract described in subsection (a)(1), includes the right to receive natural gas as affected by any applicable curtailment plan filed Avith the Commis- sion or the appropriate State regulatory authority. (4) The term "State" means each of the several States, the District of Columbia, Puerto Kico, any territory or possession of the United States, and any political subdivision of any of the foregoing. (5) The term "interstate pipeline" means any person engaged in the transportation of natural gas in interstate commerce subject to the 15 use 717w. jurisdiction of the Commission under the Natural Gas Act. (6) The term "Commission" means the Federal Energy Regulatory Commission. (7) The term "contract", when used with respect to a contract for receipt of natural gas, which contract was in existence on April 20, 1977, does not include any renewal or extension occurring after such date unless such renewal or extension occurs pursuant to the exercise of an option by the person receiving natural gas under such contract. (f) COORDINATION W I T H THE NATURAL GAS ACT.—(1) Considera- tion paid by any interstate pipeline pursuant to this section shall be deemed just and reasonable for purposes of sections 4, 5, and 7 of the 15 use 717c, Natural Gas Act. The Commission shall not deny a passthrough by 717d, 717f. such interstate pipeline of such consideration based upon the amount of such consideration paid pursuant to this section. 15 use 7l7w. (2) No person shall be subject to the jurisdiction of the Commission under the Natural Gas Act or to regulation as a common carrier under any provision of Federal or State law solely by reason of making any sale, or engaging in any transportation, of natural gas with respect to
PUBLIC LAW 95-620—NOV. 9, 1978 92 STAT. 3339 which, the transfer of contractual interests is authorized under sub- section (a)(1). (3) Nothing in this section shall exempt from the jurisdiction of the Commission under the Natural Gas Act any transportation in 15 USC 717w. interstate commerce of natural gas, any sale in interstate commerce for resale of natural gas, or any person engaged in such transportation or such sale to the extent such transportation, sale or person is subject to the juridiction of the Commission under such Act without regard to the transfer of contractual interests under subsection (a) (1). (4) Nothing in this section shall exempt any person from any obli- gation to obtain a certificate of public convenience and necessity for the transportation by an interstate pipeline of natural gas with respect to which the transfer of contractual interests is authorized under sub- section (a) (1). The Commission shall not deny such a certificate for the transportation in interstate commerce of natural gas based upon the amount of consideration paid pursuant to this section. (g) VOLUME LIMITATION.—^No supplier of natural gas under any contract, with respect to which contractual interests have been trans- ferred under subsection (a) (1), shall be required to supply natural gas during any relevant period in volume amounts which exceed the lesser of— (1) the volume determined by reference to the maximum deliv- ery obligations specified in such contract; (2) the volume which such supplier would have been required to supply, imder the curtailment plan in effect for such supplier, to the person, who transferred contractual interests under subsec- tion (a) (1), if no such transfer had occurred; (3) the volume which would have been delivered, or for which payment would have been made, pursuant to such contract but for the prohibition on the use of such natural gas under title I I or title I I I of this Act or any rule or order thereunder; and Ante, pp. 3298, (4) the volume actually delivered or for which payment would 3305. have been made pursuant to such contract during the 12-calendar- month period ending immediately before such transfer of con- tractual interests pursuant to this section. (h) JUDICIAL REVIEW.—^Any action by the Commission under this section is subject to judicial review in accordance with chapter 7 of title 5, United States Code. Subtitle E—Studies SEC. 741. NATIONAL COAL POLICY STUDY. (a) STUDY.—The President, acting through the Secretary and the 42 USC 8451. Administrator of the Environmental Protection Agency, shall make a full and complete investigation and study of the alternative national uses of coal available in the United States to meet the Nation's energy requirements consistent with national policies for the protection and enhancement of the quality of the environment and for economic recovery and full employment. In particular the study should identify and evaluate— (1) current and prospective coal requirements of the United States; (2) current and prospective voluntary and mandatory energy conservation measures and their potential for reduction of the United States coal requirements;
92 STAT. 3340 PUBLIC LAW 95-620—NOV. 9, 1978 (3) current and prospective coal resource production, trans- portation, conversion, and utilization requirements; (4) the extent and adequacy of coal research, development, and demonstration programs being carried out by Federal, State, local, and nongovernmental entities (including financial resources, man- power, and statutory authority); (5) programs for the development of coal mining technologies which increase coal production and utilization while protecting the health and safety of coal miners; (6) alternative strategies for meeting anticipated United States coal requirements, consistent with achieving other national goals, including national security and environmental protection; (7) existing and prospective governmental policies and laws aflFecting the coal industry with the view of determining what, if any, changes in and implementation of such policies and laws may be advisable in order to consolidate, coordinate, and provide an effective and ec[uitable national energy policy consistent with other national policies; and (8) the most efficient use of the Nation's coal resources consid- ering economic (including capital and consumer costs, and balance of payments), social (including employment), environ- mental, technological, national defense, and other aspects. (b) REPORT.—^Within 18 months after the effective date of this Act, the President shall submit to the Congress a report with respect to the studies and investigations, together with findings and recommendations in order that the Congress may have such information in a timely fashion. Such report shall include the President's determinations and recommendations with respect to— (1) the Nation's projected coal needs nationally and regionally, for the next 2 decades with particular reference to electric power; V. (2) the coal resources available or which must be developed to meet those needs, including, as applicable, the programs for research, development, and demonstration necessary to provide technological advances which may greatly enhance the Nation's ability to efficiently and economically utilize its fuel resources, consistent with applicable environmental requirements; (3) the air, water, and other pollution created by coal require- ments, including any programs to overcome promptly and effi- ciently any technological or economic barriers to the elimination of such pollution; (4) the existing policies and programs of the Federal Govern- ment and of State and local governments, which have any sig- nificant impact on the availability, production or efficient and economic utilization of coal resources and on the ability to meet the Nation's energy needs and environmental requirements; and (5) the adequacy of various transportation systems, including roads, railroads, and waterways to meet projected increases in coal production and utilization. Publication in Before Submitting a report to the Congress under subsection (b), the Federal Register. President shall publish in the Federal Register a notice and summary ^"^i'*K r ®^ ^^^ proposed report, make copies of such report available, and availability. accord interested persons an opportunity (of not less than 90 davs' duration) to present written comments; and shall make such modifi- cations of such report as he may consider appropriate on the basis of such comments.
PUBLIC LAW 95-620—NOV. 9, 1978 92 STAT. 3341 (c) AUTHORIZATION^ OP APPROPRIATIONS.—^There is hereby authorized to be appropriated to the Secretary for allocation between the Depart- ment of Energy and the Environmental Protection Agency for fiscal years 1979 and 1980, not to exceed $18,000,000, for use in carrying out the purposes of this section. SEC. 742. COAL INDUSTRY PERFORMANCE AND COMPETITION STUDY. (a) STUDY.—The Secretary shall make a complete investigation of 42 USC 8452. the performance and competition of the coal industry. The study shall Interagency be an interagency effort under the direction of the Secretary and shall participants, include participation by— (1) the Federal Trade Commission, (2) the Department of Justice, (3) the Department of Energy, r4) the Federal Energy Eegulatory Commission, (5) the Department of the Interior, (6) the Department of Transportation, (7) the Department of Commerce, (8) the Department of Labor, (9) the Department of State, (10) the Department of the Treasury, (11) the Interstate Commerce Commission, (12) the Council on Wage and Price Stability, (13) the Tennessee Valley Authority, and (14) the Appalachian Regional Commission. (b) COVERAGE OF STUDY.—The study shall consider the following elements relating to competition: (1) interests in, or ownership or production of, coal reserves by firms which— (A) own or have an interest in commodity transportation systems by rail, water, or pipeline, (B) own or produce oil, natural gas, or uranium, or (C) use significant amounts of coal in their processes, including electrical generation and steelmaking, (2) prices, profitability, and levels of concentration in sales of various identifiable submarket structures in the coal industry, including the market for— ,, (A) steam and metallurgical coal, ,. ;^ (B) low-sulfur coal, (C) lignite, anthracite, bituminous and subbituminous coal, • (D) spot sales and long-term delivery contracts, and (E) exports, f 3) overall profitability of coal operations, (4) capital requirements, sources and uses of funds, (5) vertical inte^ation of production, cleaning, processing, gas- ification, liquefaction, transportation, marketing, distribution, combustion, and other phases of the coal fuel cycle, (6) the effect of interfuel ownership, vertical integration, and market concentration upon innovation, eJEciency, prices and profits, (7) costs of production, transportation, processing, and other comj)onents of coal prices for different regions and different types of mines, (8) responsiveness of coal supply to market demand, (9) productive capacity, (10) productivity,
92 STAT. 3342 PUBLIC LAW 95-620—NOV. 9, 1978 (11) economies and diseconomies of scale, (12) distribution and flow of executive, managerial, and tech- nical personnel between the various coal producers, (13) management and directorate interlocks, (14) relationships to financial institutions, (15) government-industry relationships, including lease bid- ding, technology, research, development, demonstration and trans- fer, and personnel movement, (16) joint ventures, consortia, and cross-ownership, (17^ identification of the major owners of coal industry stock, (18) control of patents and technologies, (19) barriers to greater competition in the market for coal, and (20) Federal income tax policies. (c) IMPACTS ON COAL-PRODUCING COUNTIES AND STATES.—The study shall evaluate the economic and social impacts upon coal-producing counties and States of present and prospective land ownership patterns and levels of income, property, severance and other taxes paid by coal producers. (d) EXPORT OP METALLURGICAL COAL.—^The study shall identify and evaluate national policies toward the export of metallurgical coal as they relate to— (1) national security, (2) national energy goals, (3) balance of payments, (4) comparative advantage in world trade, (5) materials policy, (6) United States and international reserves and resources, and (7) likely future metallurgical technologies. (e) REPORTS.— (1) Pursuant to the provisions of the preceding sub- sections of this section, the Secretary shall submit to the President for transmittal to the Congress such interim reports as he deems advisable and, not later than 18 months after the effective date of this Act, a comprehensive and final report to the Congress containing the findings with respect to such study and investigation. Such report may include such legislative and administrative recommendations as the President deems advisable. Publication in (2) Before submitting a report to the Congress under paragraph Federal Register. (1), the President shall— Public (A) publish in the Federal Register a notice and summary of availability. the proposed report and make copies of such report available and afford interested persons an opportunity (of not less than 90 days' duration) to present written comments; and (B) make such modifications of such report as he may consider appropriate on the basis of such comments. (f) AUTHORIZATION OF APPROPRIATIONS.—There is authorized to be appropriated to the Secretary for allocation between the Depart- ment of Energy and the other agencies participating in the study under this section for the fiscal years 1979 and 1980, not to exceed $18,000,000 to carry out the provisions of this section. SEC. 743. IMPACT ON EMPLOYEES. 42 u s e 8453. (a) EVALUATION.—^The Secretary shall conduct continuing evalua- tions of potential loss or shifts of employment which may result from any prohibition under this Act, including, if appropriate, investigat- ing threatened plant closures or reductions in employment allegedly
PUBLIC LAW 95-620—NOV. 9, 1978 92 STAT. 3343 resulting from such prohibition. T h e results of such evaluations and each investigation shall promptly be made available t o t h e public. (b) INVESTIGATION AND HEARINGS.—On a written request filed with the Secretary by or on behalf of a n y employee who is discharged or laid off, threatened with discharge o r layoff, o r otherwise discrimi- nated against, by a n y person because of t h e alleged effects of any such prohibition, t h e Secretary shall investigate t h e matter and, a t t h e request of a n y p a r t y , shall hold public hearings, after n o t less t h a n 30 days notice, at which the Secretary shall require t h e parties, including any employer involved, to present information on t h e actual or poten- tial effect of such prohibition on employment and on a n y alleged employee discharge, layoff, or other discrimination relating to prohi- bitions a n d t h e detailed reasons or justification therefor. A t t h e com- pletion of such investigation, the Secretary shall make findings of fact as t o t h e effect of such prohibition on employment a n d on the alleged employee discharge, layoff, or discrimination a n d shall make such recommendations as he deems appropriate. Such report, findings, a n d Public recommendations shall be available t o t h e public. T h e Secretary of availability. Labor shall participate in each such investigation. Participation by Secretary of (c) R U L E o r CONSTRUCTION.—Nothing in this section shall be con- Labor. strued t o require or authorize t h e Secretary t o modify or withdraw any prohibition under this Act. SEC. 744. STUDY OF COMPLIANCE PROBLEM OF SMALL ELECTRIC UTILITY SYSTEMS. (a) STUDY.—The Secretary shall conduct a study of t h e problems 42 USC 8454. of compliance with this A c t experienced by those electric utility sys- tems which have a total system generating capacity of less t h a n 2,000 megawatts. T h e Secretary shall report his findings and his recommen- Report to dations t o t h e Congress not later t h a n 2 years after t h e effective date Congress. of this Act. (b) AUTHORIZATION OF APPROPRIATIONS.—There is authorized t o be appropriated to the Secretary for the fiscal year 1979 not to exceed $500,000 to carry out t h e provisions of this section. SEC. 745. EMISSIONS MONITORING. (a) MONITORING PROGRAM.—The A d m i n i s t r a t o r of t h e E n v i r o n - 42 USC 8451: mental Protection Agency shall conduct, on a continuing basis, a p r o g r a m of monitoring, to t h e greatest extent possible a n d in accord- ance with t h e applicable authorities and provisions of t h e Clean A i r Act, t h e emissions from new and existing electric powerplants and 42 USC 7401 major fuel-burning installations required t o use coal or other alternate note. fuels by reason of this A c t or otherwise using coal or other alternate fuels a n d t h e effect thereof on t h e public health, safety, a n d welfare and the movement of such emissions in t h e atmosphere and their impact on land and water a n d other resources and t h e public health in various regions of t h e Nation. Such Administrator shall submit Annual report to an annual report to the Congress on such program. I n carrying out Congress. his responsibilities under this section, the' Administrator of t h e Consultation. Environmental Protection Agency shall consult with the other Federal and State agencies concerned with the health effects of such emissions. (b) APPROPRIATIONS AUTHORIZATIONS.—There is authorized to be appropriated to t h e Administrator of the Environmental Protection Agency $2,000,000 in fiscal year 1979 for t h e report required under section 806.
92 STAT. 3344 PUBLIC LAW 95-620—NOV. 9, 1978 SEC. 746. SOCIOECONOMIC IMPACTS OF INCREASED COAL PRODUC- TION AND OTHER ENERGY DEVELOPMENT. 42 u s e 8456. (a) COMMITTEE.—There is hereby established an interagency com- mittee composed of the heads of t h e Departments of Energy, Commerce, Interior, Transportation, Housing a n d U r b a n Develop- ment, a n d Health, Education, a n d Welfare, t h e Environmental Protection Agency, t h e Appalachian Regional Commission, t h e F a r m e r s ' H o m e Administration, the Office of Management a n d Bud- get, and such other Federal agencies as t h e Secretary shall designate. I n carrying out its functions t h e committee shall consult with t h e National Governors' Conference and interested persons, organizations, and entities. T h e chairman of t h e committee shall be designated by Termination. t h e President. T h e committee shall terminate 90 days after the sub- mission of its report under subsection ( c ) . (b) FUNCTIONS OF C O M M I T T E E . — I t is t h e function of the committee to conduct a stud.y of the socioeconomic impacts of expanded coal production and rapid energy development in general, on States, including local communities, and on the public, including t h e ade- quacy of hoiising and public, recreational, and cultural facilities for coal miners and their families and t h e effect of any Federal or State laws or regulations on providing such housing and facilities. T h e committee shall gather data and information on— (1) t h e level of assistance provided under this Act a n d any other programs related to impact assistance, (2) the timeliness of assistance in meeting impacts caused by Federal decisions on energy policy as Avell as private sector decisions, a n d (3) the obstacles to effective assistance contained in regulations of existing programs related to impact assistance. (c) REPORT.—Within 1 year after the effective date of this Act, the committee shall submit a detailed report on t h e results of such study to the Congress, together with any recommendations for additional legislation it may consider appropriate. SEC. 747. USE OF PETROLEUM AND NATURAL GAS IN COMBUSTORS. 42 u s e 8457. The Secretary shall conduct a detailed study of the uses of petroleum and natural gas as a primary energy source for combustors and installations not subject to the prohibitions of this Act. I n conducting such study, the Secretary shall— (1) identify those categories of major fuel-burning installa- tions in which the substitution of coal or other alternate fuels for petroleum and natural gas is economically and technically feas- ible, and (2) determine t h e estimated savings of n a t u r a l gas and petroleum expected from such substitution. Report to W i t h i n 1 year after t h e effective date of this Act, t h e Secretary shall Congress. submit a detailed report on the results of such study to t h e Congress, togetl^er with any recommendations for legislation he m a y consider appropriate. Subtitle F—Appropriations Authorization SEC. 751. AUTHORIZATION OF APPROPRIATIONS. 42 u s e 8461. There is authorized to be appropriated to t h e Secretary for fiscal year 1979 $11,900,000, to carry out t h e provisions of this A c t (other than provisions for which an appropriations authorization is other- wise expressly provided in this A c t ) and section 2 of the E n e r g y 15 u s e 792. Supply and Environmental Coordination Act of 1974.
PUBLIC LAW 95-620—NOV. 9, 1978 92 STAT. 3345 Subtitle G—Coordination with other Provisions of Law SEC. 761. EFFECT ON ENVIRONMENTAL REQUIREMENTS. (a) COMPLIANCE W I T H APPLICABLE ENVIRONMENTAL REQUIRE- 42 USC 8471. MENTS.—Except as provided i n section 404, nothing in this A c t shall be '^"'^e, p. 3319. construed as permitting a n y existing or new electric powerplant or major fuel-burning installation to delay or avoid compliance with applicable environmental requirements. (b) LOCAL ENVIRONMENTAL R E Q U I R E M E N T S . — I n the case of any new or existing facility— (1) which is subject to any prohibition under this Act, a n d (2) which is also subject to any requirement of a n y local environmental requirement which may be stricter t h a n any Fed- eral or State environmental requirement, the existence of such local requirement shall not be construed t o affect the validity or applicability of such prohibition t o such facility, except t o the extent provided under section 212(b) or section 312(b) ; Ante, pp. 3300, and t h e existence of such prohibition shall n o t be construed to pre- 3309. empt such local requirement with respect t o t h a t facility. SEC. 762. EFFECT OF ORDERS UNDER SECTION 2 OF ESECA; AMEND- MENTS TO ESECA. ( a ) E F F E C T OF CONSTRUCTION ORDERS.—Any electric p o w e r p l a n t or 42 USC 8472. major fuel-burning installation issued an order pursuant t o section 2(c) of t h e E n e r ^ Supply a n d Environmental Coordination A c t of 1974 t h a t is pending on t h e effective date of this A c t shall, notwith- 15 USC 792. standing t h e provisions of such section 2 ( c ) o r a n y other provision of this Act, be subject t o t h e provisions of this A c t as if it were a new electric powerplant or new major fuel-burning installation, as the case may be, except t h a t if such order became final before such date, the provisions of title I I of this A c t shall n o t apply to such power- Ante, p. 3298. plant or installation. (b) E F F E C T OF PROHIBITION ORDERS.—The provisions of titles I I and I I I shall not apply t o a n y powerplant or installation for which Ante, pp. 3298, an order issued pursuant to section 2 ( a ) of t h e E n e r g y Supply a n d ^^Q^- Environmental Coordination A c t of 1974 before t h e effective date of 15 USC 792. this A c t is pending o r final o r which, on review, was held unlawful and set aside on the m e r i t s ; except t h a t any installation issued such an order under such section 2 ( a ) which is pending on t h e effective date of this Act may elect to be covered by title I I or I I I (as t h e case may be) rather t h a n such section 2. Such a n election shall be irrevocable and shall be made in such form a n d manner as t h e Secretary shall, within 90 days after t h e date of the enactment of this Act, prescribe. Such an election shall be made not later t h a n 60 days after the date on which t h e Secretary prescribes t h e form a n d manner of making such election. (c) VALIDITY OF ORDERS.—The p r e c e d i n g provisions of t h i s A c t shall not affect t h e validity of any order issued under subsection ( a ) , or a n y final order under subsection ( c ) , of section 2 of t h e E n e r g y S u p p l y and Environmental Coordination Act of 1974, and the author- ity of the Secretary t o amend, repeal, rescind, modify, o r enforce any such order, o r rules applicable thereto, shall remain in effect not- withstanding a n y limitation of time otherwise applicable to such
92 STAT. 3346 PUBLIC LAW 95-620—NOV. 9, 1978 authority. Except as provided in this section, the authority of the 15 use 792. Secretai-y under section 2 of such Act Shall terminate on the effective date of this Act. (d) AMENDMENTS TO E S E C A . — (1) Section 11(g) of the Energy 15 use 796. Supply and Environmental Coordination Act of 1974 is amended— (1) by striking out paragraph (2), and (2) in paragraph (1), by striking out "(g) (1)" and inserting in lieu thereof "(g)". SEC. 763. ENVIRONMENTAL IMPACT STATEMENTS UNDER NEPA. 42 use 8473. The following actions are not deemed to be major Federal actions for purposes of section 102(2) (C) of the National Environmental 42 use 4332. Policy Act of 1969: (1) the grant or denial of any temporary exemption under this Act for any electric powerplant or major fuel-burning installation; (2) the grant or denial of any permanent exemption under this Act for any existing electric powerplant or major fuel-burn- ing installation, other than an exemption— Ante, p. S309. (A) under section 312(c), relating to cogeneration; (B) under section 312(1), relating to scheduled equipment outages; (C) under section 312(b), relating to certain State or local requirements; (D) under section 312(g), relating to certain intermediate load powerplants; and (3) the grant or denial of any exemption under this Act for any powerplant or major fuel-burning installation for which the Secretary finds, in consultation with the appropriate Federal agency, and publishes such finding that an environmental impact statement is required in connection with another Federal action and such statement will be prepared by such agency and will reflect the exemption adequately. Except as provided in the preceding provisions of this section, any determination of what constitutes or does not constitute a major Fed- eral action shall be made under section 102 of the National Environ- 42 use 4332. mental Policy Act of 1969. TITLE VIII—MISCELLANEOUS PROVISIONS 42 use 8481. SEC. 801. COAL RESERVES DISCLOSURE. (a) DISCLOSURE.—^Within 2 years after the effective date of this Act, and annually thereafter, the Secretary shall require the disclosure, pursuant to section 11 of the Energy Supply and Environmental 15 use 796. Coordination Act of 1974, of the extent, characteristics, and productive capacity of coal reserves, or interest therein, within the United States held by any person or governmental entity, as necessary, and shall publish a summary of such information. Publication in (b) EXEMPTION FOR SMALL RESERVKS.—The Secretary may exempt Federal Register, small reserves from the requirements of this section if the Secretary finds that the imposition of the requirements of this section would impose an unreasonable economic burden on such person (or entity) or would not be of significant aid to achievement of the purposes of this Act, and publishes such findings in the Federal Register.
PUBLIC LAW 95-620—NOV. 9, 1978 92 STAT. 3347 SEC. 802. COAL PREPARATION FACILITIES. Section 102(c)(4) of the Energy Policy and Conservation Act is amended by adding at the end thereof (42 U.S.C. 6211 (c) (4)) the fol- lowing new sentence: "Such term also includes construction of a coal preparation plant which is designed to reduce the sulfur content of coal produced from any coal mine.". SEC. 803. RAILROAD REHABILITATION FOR CARRIAGE OF COAL. (a) STATEMENT OF PURPOSE.—It is the purpose of this section to 45 USC 822 facilitate and encourage the use of and conversion to coal as an ener<iy ""*^- resource in regions and States which can use coal in greater quantity as a substitute for imported petroleum. (b) AUTHORIZATION.—There is authorized to be appropriated, for deposit in the Railroad Rehabilitation and Improvement Fund estab- lished under section 502 of the Railroad Revitalization and Regula- tory Reform Act of 1976 (45 U.S.C. 822), not more than $100,000,000. The money appropriated to the Railroad Rehabilitation and Improve- ment Fund pursuant to this subsection shall be expended by the Sec- retary of Transportation, in the same manner as other money in such Fund, to provide financial assistance to railroads for maintenance, rehabilitation, improvement, and acquisition of equipment and facil- ities which will be used for the rail transportaton of coal to regions or States which can use coal in greater quantities (whether or not such equipment or facilities were designed specifically for such purpose). (c) CONFORMING AMENDMENTS.— (1) Section 501(2) of the Rail- road Revitalization and Regulatory Reform Act of 1976 (45 U.S.C. 821(2)) is amended by inserting "(except as provided in section 803 (a) and (b) of the Powerplant and Industrial Fuel Use Act of 1978)" immediately after "or other features". (2) Section 502(b) of such Act (45 U.S.C. 822(b)) is amended by inserting at the end thereof the following: "Money appropriated to the Fund under section 803 (a) and (b) of the Powerplant and Industrial Fuel Use Act of 1978 shall be used to provide financial assistance to railroads for maintenance, rehabilitation, improvement, and acquisition of equipment and facilities which will be used for the rail transportation of coal to regions or States which can use coal in greater quantities as a substitute for imported petroleum.". (3) Section 502(f) of such Act (45 U.S.C. 822(f) is amended— (A) by striking out "and" at the end of paragraph (5) thereof; (B) by inserting between paragraphs (5) and (6) the follow- ing new paragraph: "(6) funds as may hereafter be appropriated to the Fund as authorized under section 803(a) and (b) of the Powerplant and Industrial Fuel Use Act of 1978; and"; and (C) by redesignating paragraph (6) as paragraph (7). (4) Section 502(i) of such Act (45 U.S.C. 822(i)) is amended— (A) by striking out "and" at the end of paragraph (4) thereof; (B) by striking out "Treasury." at the end of paragraph (5) and inserting in lieu thereof "Treasury, and"; and (C) by adding at the end thereof the following new paragraph: "(6) to carry out the purposes of section 803 (a) and (b) of the Powerplant and Industrial Fuel Use Act of 1978". (5) Section 505(b) ^2) of such Act (45 U.S.C. 825) is amended by inserting between the fourth and fifth sentences thereof the following new sentence: "With respect to funds appropriated for financial assistance under this section which were authorized pursuant to section
92 STAT. 3348 PUBLIC LAW 95-620—NOV. 9, 1978 803 (a) and (b) of the Powerplant and Industrial Fuel Use Act of 1978, applications for such funds for the purpose of coal transporta- tion shall be deemed to be for the provision of essential freight services.". (6) Section 505(d) (3) of such Act (45 U.S.C. 825) is amended— (A) by striking out in the first sentence "$600,000,000" and inserting in lieu thereof "$700,000,000", and (B) by striking out in the second sentence "$100,000,000" and inserting in lieu thereof "$150,000,000". SEC. 804. OFFICE OF RAIL PUBLIC COUNSEL. 49 use 26b. Section 27 of the Interstate Commerce Act is amended— (1) by striking out "and" at the end of paragraph (4) (d), (2) by striking out the period at the end of paragraph (4) (e) and inserting in lieu thereof "and", and (3) by inserting after paragraph (4) (e) the following: "(f) shall present the views of users, as well as the views of the gen- eral public and affected communities, and, where appropriate, provi- ders of rail services in proceedings of Federal agencies concerning— "(1) the impact of energy proposals and actions on rail trans- portation, and "(2) whether transportation policies are consistent with National energy policies.". SEC. 805. RETROACTIVE APPLICATION OF CERTAIN REMEDIAL ORDERS. (a) GENERAL RULE.—Section 503 of the Department of Energy Organization Act (42 U.S.C. 7193) is amended by adding at the end thereof the following new subsection; "(g) With respect to any person whose sole petroleum industry oper- ation relates to the marketing of petroleum products, the Secretary or any person acting on his behalf may not exercise discretion to main- tain a civil action (other than an action for injunctive relief) or issue a remedial order against such person for any violation of any rule or regulation if— " (1) such civil action or order is based on a retroactive applica- tion of such rule or regulation or is based upon a retroactive inter- pretation of such rule or regulation; and " (2) such person relied in good faith upon rules, regulations, or ruling in effect on the date of the violation interpreting such rules or regulations.". (b) TECHNICAL CONFORMING AMENDMENTS.—In subsections (e) and (f) of such section 503, insert "preceding provisions of" before "this section". SEC. 806. ANNUAL REPORT. 42 use 8482. The Secretary shall submit to the Congress on March 1 of each year a detailed report prepared by hin> in conjunction with the Adminis- trator of the Environmental Protection Agency of the actions taken under this Act ajid under section 2 of the Energy Supply and Envi- 15 use 792. ronmental Coordination Act of 1974 during the preceding calendar year, and the actions to be taken. Each such report shall include data on the effectiveness of this Act in achieving the purposes of this Act. SEC. 807. SUBMISSION OF REPORTS. 42 use 8483. Copies of any report required by this Act to be submitted to the Congress shall be separately submitted to the Committee on Interstate and Foreign Commerce of the House of Kepresentatives and the Com- mittee on Energy and Natural Resources of the Senate.
PUBLIC LAW 95-620—NOV. 9, 1978 92 STAT. 3349 TITLE IX—EFFECTIVE DATES SEC. 901. EFFECTIVE DATES. Unless otherwise provided in this Act, the provisions of this Act 42 u s e 8301 shall take effect 180 days after the date of the enactment of this Act, note. except that the Secretary may issue rules pursuant to such provisions at any time after such date of enactment, which rules may take effect no earlier than 180 days after such date of enactment. SEC. 902. INTERIM PETITION AND CONSIDERATION FOR CERTAIN EXEMPTIONS. (a) EXEMPTIONS IN THE CASE OF CERTAIN POWERPLANTS.—In the case 42 u s e 8301 of— note. (1) any electric powerplant which, as of April 20, 1977, has received a final decision from the appropriate State agency author- izing the construction of such powerplant, and (2) any electric powerplant (A) consisting of one or more combined cycle units owned or operated by an electric utility which serves at least 2,000,000 customers and (B) for which an application has been filed for at least one year before the date of the enactment of this Act with the appropriate State agency for authorization to construct such powerplant, the Secretary may receive, consider, and grant (or deny) any petition for an exemption under title I I or I I I , notwithstanding section 901 or Ante, pp. 3298, the fact that all rules related to such petition have not been prescribed 3305. at the time. (b) EXEMPTIONS UNDER SECTION 211(d).—The Secretary may Ante, p. 3299. receive, consider, and grant (or deny) any petition for any exemption under section 211(d), notwithstanding section 901 or the fact that all rules related to such petition have not oeen prescribed at the time. Approved November 9, 1978. LEGISLATIVE HISTORY: HOUSE REPORTS: No. 95-433 (Comm. on Ways and Means), No. 95-543, Vols. I and II accompanying H.R. 8444 (ad hoc eomm. on Energy), and No. 95-1749 (Comm. of Conference). SENATE REPORT No. 95-988 (Comm. of Conference). CONGRESSIONAL RECORD: Vol. 123 (1977): July 18, considered and passed House. Sept. 8, considered and passed Senate, amended. Oct. 13, House agreed to certain Senate amendments; insisted on House amendment to Senate amendment No. 6. Vol. 124 (1978): July 14, 17, 18, Senate agreed to conference report. Oct. 15, House agreed to conference report. WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS: Vol. 14, No. 45 (1978): Nov. 9, Presidential statement. O