PL 95

– 620, 1978 HR 5146

PL 95

– 620, NOVEMBER 9, 1978, 92 Stat 3289 Page 1

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. PL 95

– 620, NOVEMBER 9, 1978, 92 Stat 3289

UNITED STATES PUBLIC LAWS 95th Congress

- Second Session Convening January 19, 1978 Copr. (C) West Group 1998. No Claim to Orig. U.S. Govt. Works

DATA SUPPLIED BY THE U.S. DEPARTMENT OF JUSTICE. (SEE SCOPE)

Additions and Deletions are not identified in th is document.

PL 95

– 620 (HR 5146) NOVEMBER 9, 1978

An Act to amend the Tariff Schedules of the United States to provide for the duty

- free entry of competition bobsleds and luges.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

TITLE I

— BOBSLEDS AND LUGES Sec. 101. Subpart D of part 5 of schedule 7 of the Tariff Schedules of the United States (19 U.S.C. 1202) is amended by striking out item 734.97 and inserting in lieu thereof the following:

“ 734.98 Bobsleds and luges of a kind used in international competition international competition.......................... Free Free
734.99 Other......................................9% ad val. 45% ad val. “

.

Sec. 102. The amendments made by the first section of this title shall apply with respect to articles entered, or wit hdrawn from warehouse, for comsumption 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 the ” Powerplant and Industrial Fuel Use Act of 1978 ”

. (b) Table of Contents.

— , TITLE I

— GENERAL PROVISIONS

Sec. 101. Short title; table of contents. Sec. 102. Findings; statement of purposes. Sec. 103. Definitions. Sec. 104. Territorial application.

TITLE II

— NEW FACILITIES

SUBTITLE A

— PROHIBITIONS

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; compli ance plans.PL 95

– 620, 1978 HR 5146

PL 95

– 620, NOVEMBER 9, 1978, 92 Stat 3289 Page 2

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

TITLE III

— EXISTING FACILITIES

SUBTITLE A

— PROHIBITIONS

Sec. 301. Exislting electric powerplants. Sec. 302. Existing major fuel

– burning installations. Sec. 303. Rules relating

to case

- by

- case and category prohibitions.

TITLE III

- EXISTING FACIL ITIES

— 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.

TITLE IV

— ADDITIONAL PROHIBITIONS; EMERGENCY AUTHORITIE S

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 incrased use of petroleum by existing powerplants.

TITLE V

— SYSTEM COMPLIANCE OPTION

Sec. 501. Electric utility system compliance option.

TITLE VI

— FINANCIAL ASSISTANCE

Sec. 601. A ssistance to areas impacted by increased coal or uranium production. Sec. 602. Loans to assist powerplant acquisitions of air pollution control equipment.

TITLE VII

— ADMINISTRATION AND ENFORCEMENT

SUBTITLE A

— PROCEDURES

Sec. 701. Administrative procedures. Sec. 702. Judicial review.

SUBTITLE B

— INFORMATION AND REPORTING

Sec. 721. Notice of violation; other general provisions. Sec. 722. Criminal penalties. Sec. 723. Civil penalties. Sec. 724. Injunctions and other equitabl e relief. Sec. 725. Citizen suits.

SUBTITLE D

— PRESERVATION OF CONTRACTUAL RIGHTS

Sec. 731. Preservation of contractual rights.

SUBTITLE E

— STUDIES

Sec. 741. National coal policy study. Sec. 742. Coal industry performance and competition study. Sec. 743. I mpact 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 p etroleum and natural gas in combustors.

SUBTITLE F

— APPROPRIATIONS AUTHORIZATION

Sec. 751. Authorization of appropriations.

SUBTITLE G

— COORDINATION WITH OTHER PROVISIONS OF LAW

Sec. 761. Effect on environmental requirements. Sec. 762. Effect of orders under section 2 of ESECA ; amendments to ESECA. Sec. 763. Environmental impact statements under NEPA.

TITLE VIII

— MISCELLANEOUS PROVISIONSPL 95

– 620, 1978 HR 5146

PL 95

– 620, NOVEMBER 9, 1978, 92 Stat 3289 Page 3

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Sec. 801. Coal reserves disclosure. Sec. 802. Coal 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 reports.

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

— , (1) the protection of public health and welfare, the preservation of national security, and the regulation of interstate commerce require the establishment of a program for the expended use, consistent with applicable environmental requirements, of coal an d other alternate fuels as primary energy sources for existing and new electric powerplants and major fuel

–

burning installations; and (2) the purposes of this Act are furthered in cases in which coal or other alternate fuels are used by electric powerplant s and major fuel

- burning installations, consistent with applicable environmental requirements, as primary energy sources in lieu of natural gas or petroleum. (b) Statement of Purposes.

— The purpose of this Act, which shall be carried out in a manner consist ent with applicable environmental requirements, are

— , (1) to reduce the importation of pertroleum and increase the 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 than electric utility or other industrial or commercial gene ration 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 primary energy source; (4) to the extent permitted by this Act, to encoura ge the use of synthetic gas derived from coal or other alternate fuels; (5) to encourage the rehabilitation and upgrading of railroad service and equipment necessary to transport coal to regions or States which can use coal in greater quantities; (6) to pr ohibit 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 primary 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 that existing and new electric powerplants and major fuel

- burning installations which utilize natural gas, petroleum, or coal or other alternate fuels pursuant to this Act comply with applicable environmental requirements; (9) to insure that a ll 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 wit hin 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 available for essential agricultural uses (inc luding crop drying, seed drying, irrigation, fertilizer production, and production of essential fertilizer ingredients for such uses); (11) to reduce the vulnerability of the United States to energy supply interruptions; and (12) to regulate interstate com merce.

SEC. 103. DEFINITIONS.

(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 anyPL 95

– 620, 1978 HR 5146

PL 95

– 620, NOVEMBER 9, 1978, 92 Stat 3289 Page 4

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 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 gas; (iii) syntheti c 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 determ ined under rules prescribed by the Secretary; (ii) natural gas produced by the user from a well the maximum effcient 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 prescribed by the Secretary; or (D) petroleum coke or waste gases from industrial operations. (5) The term “ coal ” means anthracite and bituminous coal, lignite, and any fuel derivative thereof. (6) The term “ alternat e fuel ” means electricity or any fuel, other than natural gas or petroleum, and includes

— , (A) petroleum coke, shale oil, uranium, biomass, and municipal, industrial, or agricultural wastes, wood, and r enewable and geothermal energy sources; (B) liquid, so lid, or gaseous waste byproducts of refinery or industrial operations which are commercially unma rketable, 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 capab ility 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 d esign 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 consume 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 A ct; 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 can celed, 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 ap propriate State authority), or (ii) imposing substantial financial penalty (as determined under rules prescribed by the Secretary). (9) (A) The term “ existing electric powerplant ” means any electric powerplant other than a new electric powerplant.PL 95

– 620, 1978 HR 5146

PL 95

– 620, NOVEMBER 9, 1978, 92 Stat 3289 Page 5

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. (B) Any powerplant treated under this Act as an existing electric 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 s tationary 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 mixture thereof) at a fuel heat input rate of 100 million Btu's per hour or greater; o r (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) T he terms “ major fuel

- burning installation ” and “ installation ” do not include

— , (i) any electric powerplant; or (ii) any pump or compressor used solely in connection with the production, gathering, transmission, storage, or di stribution 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 consume 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 construction 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 construction or acquisition began on a date after A pril 20, 1977, and before the date of the enactment of this Act, unless the Secretary finds the construction or acquisition of such i nstallation 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 determined 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 installation 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 shal l not be treated thereafter as a new major
fuel

– burning installation merely by reason of a transfer of ownership. (13) The term “ construction or acquisition began ” means, when used with reference to a certain date, that

— , (A) construction in accordance wit h final drawings or equivalent design documents (as defined by the Secretary, by rule) began on or after that date; or (B) (1) construction or acquisition had been contracted for on or after that date, or (ii) if the construction or acquisition
had been co ntracted 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 (III) 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 construction or reconstruction, as defined by rule by the Se cretary. (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 a mounts 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) eme rgencies directly affecting the public health, safety, or welfare which would result from electric power outages.PL 95

– 620, 1978 HR 5146

PL 95

– 620, NOVEMBER 9, 1978, 92 Stat 3289 Page 6

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. (16) The term “ site limitation ” means, when used with respect to any powerplant or installation, any specific physical limitation 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 alternate fuels; (C) lack of ad equate 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, i ncluding lack of pollution control equipment or devices necessary to assure compliance with applicable enviro nmental requirements; and (E) lack of an adequate and reliable supply of water, including water for use in compliance with applicable env ironmental requirements. (17) The term “ applicable env ironmental requirements ” includes

— , (A) any standard, limitation, or other requirement established by or pursuant to Federal or State law (including any final order of any Federal or State court) applicable to emissions of environmental pollutants (includi ng air and water pollutants) or disposal of solid waste residues resulting from the use of coal or other alternate fuels or natural gas or petroleum as a primary energy source or from the operation of pollution control equipment in connection with
such use , taking 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 established by, or pursuant t o, the Clean Air Act, the Federal Water Pollution Control Act, the Solid Waste Disposal Act, or the National Environmental Policy Act of 1969. (18) (A) The term “ peakload powerplant ” means a powerplant the electrical generation of which in kilowatt hours does not exceed, for any 12

– calendar

– month period, such powerplant's design capacity multiplied by 1,500 hours. (B) The term “ intermediate load powerplant ” means a powerplant (other t han a peakload powerplant), the electrical generation of which in kilowatt hours does not exceed, for any 12

– calendar

– month period, such powerplant's design capacity multiplied by 3,500 hours. (D) Not later than 90 days after the date of the enactment of t his Act, the Federal Energy Regulatory Commission shall prescribe rules under which a powerplant's design capacity may be determined for purposes of this paragraph. (19) the term “ cogeneration facility ” means an electric powerplant or a major fuel

- burning installation which pr oduces

— , (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 det ermined by the Secretary (in the case of powerplants, in consultation 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 r elevant 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 ratema king authority with respect to the sale of electricity by any State regulated 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 Act. (23) The term “ electric utility ” me ans 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. (25) T he 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 t he territories or possessions of the United States; and (D) the government of the District of Columbia. (26) The term “ Btu ” means British thermal unit.PL 95

– 620, 1978 HR 5146

PL 95

– 620, NOVEMBER 9, 1978, 92 Stat 3289 Page 7

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. (27) the term “ Mcf

” means, when used in relation to natural gas, 1,000 cubic feet of natural gas. (28) T he 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 OF NATURAL GAS AND ALTERNATE FUEL.

— (1) Subjec t 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 sha ll be included within the definition of “ alternate fuel ” under subsection (a) (6) if the person pr oposing to use such natural gas certifies 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 subsection 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 displace ment are capable of delivering such synthetic gas, mixed with natural gas, to such person; and (D) all necessary permits, licenses, or approvals from appropriate Federal, State, and local agencies (including Indian tribes) have been obtained for constructi on 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 powerplants being constructed without the capability of using coal or another alternate fuel, onl y 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 natural gas by any powerplant or major

- fuel burning installation 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 in formation: (A) the source, amount, quality, and point of delivery to the pipeline of the synthetic gas to which paragraph (1) a pplied during the annual period ending with the calendar month preceding the date of such report; and (B) the amount, quality, an d point of delivery by the pipeline to such person of the natural gas covered by paragraph (1) which is used by the person during such annual period. (3) In the case of any boiler subject to a prohibition under section 401, the 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 installa tions. (4) For purposes of this subsection, the term “ pipeline ” means any interstate or intrastate pipeline or local distribution

company.

SEC. 104. TERRITORIAL APPLICATION.

The provisions of this Act shall apply in all the States, Puerto Rico, and the t erritories and possessions of the United States, except that

— , (1) the provisions of titles II and III (other than section 301) shall only apply to powerplants and installations situated within the contiguous 48 States, Alaska, and the District of Columbia ; and (2) the provisions of section 301 shall only apply to powerplants situated within the contiguous 48 States and the
District of Columbia.

TITLE II

— NEW FACILITIES
Subtitle A

— Prohibitions

SEC. 201. NEW ELECTRIC POWERPLANTS.

Except to such extent as m ay be authorized under subtitle B

— ,PL 95

– 620, 1978 HR 5146

PL 95

– 620, NOVEMBER 9, 1978, 92 Stat 3289 Page 8

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. (1) natural gas or petroleum shall not be used as a primary 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 fu el as a primary energy source.

SEC. 202. NEW MAJOR FUEL

- BURNING INSTALLATIONS.

(a) GENERAL PROHIBITION.

— Except to such extent as may be authorized under subtitle B, natural gas or p etroleum shall not be used as a primary energy source in a new major fu el

- burning installation consisting of a boiler. (b) AUTHORITY OF SECRETARY TO PROHIBIT NONBOILERS FROM USING NATURAL GAS or P ETROLEUM.

— (1) The Secretary may, by rule, prescribe categories (identified in such rules) of new major
fuel

- burning installations, other than boilers, in which natural gas or petroleum, or both, shall be prohibited from being used as a primary energy source. In identifying categories of new major fuel

- burning installations pursuant to this paragraph, the Secretary shall take into acco unt any special circumstances or characteristics of each category of such installations (such as the technical feasibility of burning coal or other alternate fuels and the size or geographic loc ation of such installations). The application of any such fina l rule in the case of any new major fuel

– burning installation subject to 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 d ays after such final rule is published under section 702(a). Any such final rule shall not apply in the case of any installation with respect to which a comparable prohibition was issued by order (or was proposed but was not issued because it was demonstra ted that it could qualify for an exemption under subtitle B). (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 ins tallation is not, at the time of the issuance of the proposed order, in a category identified 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 proh ibition had been estab lished by rule pursuant to paragraph (1) rather than by order pursuant to this paragraph, 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 wou ld have terminated. (C) In any case in which an order is not issued by reason of subparagraph (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 i nstallation involved compli es 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 unde r this subsection shall only apply with respect to an installation for which construction or a cquisition began on or after the date of the publication under section 701(b) of the proposed rule or order establishing the prohibition. Any installation not sub ject to such a prohibition because of the preceding sentence shall be consi dered an existing major fuel

- burning installation for purposes of title III.

SUBTITLE B

— EXEMPTIONS

SEC. 211. TEMPORARY EXEMPTIONS.

(a) GENERAL EXEMPTION DUE TO LACK OF ALTERNATE F UEL SUPPLY, SITE LIMITATIONS, OR ENVIRONMENTAL REQUIREMENTS.

— After consideration of a petition (and comments thereon) for an e xemption for a powerplant or installation from one or more of the prohibitions of subtitle A, the Secretary shall, by order, gran t 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 reliab le 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 fac ilities for the transportation and use of such fuel) which, based upon the best practicable estimates, does not substantially exceed the cost, as determined by rule by the Se cretary, of using imported petroleum as a primary energy source;PL 95

– 620, 1978 HR 5146

PL 95

– 620, NOVEMBER 9, 1978, 92 Stat 3289 Page 9

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. (2) one or more s ite limitations exist which would ot permit the location or operation of such a powerplant or insta llation 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 viola ting applicable environmental requir ements. (b) Temporary Exemption Based Upon Future Use of Synthetic Fuels.

— After consideration of a petiton (and co mments 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 petitoner has demonstrated that

— , (1) the petitioner will comply with the prohibitions of subitile A by the en d 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.

The effe ctiveness of an exemption under this subsection is conditioned on the petitioner filing and maintaining a compliance plan meeting the requirements of section 214 (b). (c) TEMPORARY PUBLIC INTEREST EXEMPTION.

— 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 an exemption under this subsection for the use of natural gas or petroleum, if he finds that the petitioner

h as demonstrated that for the period of the proposed exemption the issuance of such exemption would be in the public interest and would be consistent with the purposes of this Act. (d) TEMPORARY EXEMPTION FOR THE USE OF PETROLEUM BY CERTAIN INSTALLATIONS.

— A fter consideration of a petition (and comments thereon) for an exemption from the prohibition of the use of petroleum under section 202 for an installation with a design capacity of consuming any fuel (or any mixture thereof) at a fuel heat input rate whic h does not exceed 300 million Btu's per hour, the Secretary may, by order, grant an exemption under this subsection for the use of petroleum if he finds that the petitioner has demonstrated, by the existence of binding contracts or other evidence, includin g appropriate State construction permits, that he will use coal or another alternate fuel for at least 75 percent of the annual fuel heat input rate upon the expiration of such exemption. For provisions relating to authority to receive, consider and granti ng (or denying) certain petitions for an exemption under this subsection, see section 902(b). (e) DURATION OF TEMPORARY EXEMPTIONS.

— (1) Except as provided in paragraph (2), exemptions under this section for any powerplant or installation may not exceed, ta king into account 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) An exemption under subsecti on (b) may be extended beyond the 5

– year limit under paragraph (1), but such e xemption, so extended, may not exceed 10 years. (3) If an exemption is granted for any powerplant or installation before the powerplant or installation is placed in service, the period before it is placed in service shall not be taken into account in computing the 5

– year and the

10

– year limitations of paragraphs (1) and (2).

SEC. 212. PERMANENT EXEMPTIONS.

(a) PERMANENT EXEMPTION DUE TO LACK OF ALTERNATE FUEL SUPPLY, SITE LIMITATIONS, E NVIRONMENTAL REQUIREMENTS, OR ADEQUATE CAPITAL.

— (1) After consideration of a petition (and comments thereon) for an exemption for a powerplant or installation from one or more of the prohibitions of subt itle 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 demonstrated 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 transportation and use of such fuel) which, based upon the best practicable estimates, does not substantially exceed the cost, as determined by rule b y the Secretary, of using imported petroleum as a primaryPL 95

– 620, 1978 HR 5146

PL 95

– 620, NOVEMBER 9, 1978, 92 Stat 3289 Page 10

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. energy source during the useful life of the powerplant or installation involved; (B) one or more site limitations exist which would not permit the location or operation of such powerplant or insta ll ation using coal or any other alternate fuel as a primary energy source; (C) the prohibitions of subtitle A could not be satisfied without violating applicable environmental requirements; or (D) the required use of coal or any other alternate fuel would no t allow the petitioner to obtain adequate capital for the financing of such powerplant or installation. (2) The demonstration required to be made by a petitioner under paragraph (1) shall

— , (A) in 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 a lternative sites. (3) Notwithstanding the preceding provisions o f this subsection, 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 consider ation of a petition (and comm ents 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 r espect to natural gas or petroleum, if he finds that th e petitioner has demonstrated 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 (oth er than a building code or a nuisance or zoning law); (2) in the case of a powerplant, there is no reasonable alternative site for such powerplant which meets the criteria set forth in subsection (a) (1) (A) through (D); and (3) the granting of the exempti on would be in the public interest and would be consistent with the purposes of this Act. (c) PERMANENT EXEMPTION FOR COGENERATION.

— After consideration 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 with respect to natural gas or petroleum, if he

— , (1) finds that the petitioner has demonstrated that economic and other benefits of cogeneration are unobtainable unless petroleum 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 MIXTURES CONTAINING NATURAL GAS OR PETR OLEUM.

— (1) After consideration of a petition (and comments thereon) for an exemption for a powerplant or insta llation 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 natur al gas or petroleum, 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 amoun t of the 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 ins tallation consistent with maintaining a reasonable level of fuel efficiency, as d etermined in accordance with rules prescribed by the Secetary. (2) In the case of a new major fuel

- burning installation, the percentage determined by the Secretary under subpa r agraph (B) of paragraph (1) shall not be less than 25 percent. (e) PERMANENT EXEMPTION FOR EMERGENCY PURPOSES.

— After consideration of a petition (and co mments thereon) for an exemption from one or more of the prohibitions of subtitle A for a powerplant o r installation, 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 demonstrated 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 POWERPLANTS NECESSARY TO MAINTAIN 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, the Secretary may, by order, grant a permanent exemption under this subsection with respect to natural gas or pe troleum if he finds that the petitioner has demonstrated that

— , (1) such exemption is necessary to prevent impairment of reliability of service, and (2) the petitioner, despite diligent good faith efforts, is not able to make the demonstration necessary to obtain anPL 95

– 620, 1978 HR 5146

PL 95

– 620, NOVEMBER 9, 1978, 92 Stat 3289 Page 11

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. exemption under subsection (a) or (b) in the time required to prevent such impairment of service. (g) PERMANENT EXEMPTION FOR PEAKLOAD POWERPLANTS.

— After consideration of a petition (and comments thereon) for an exemption for a powerplant

— , (1) in the case of a proposed use of petroleum, the Secretary shall, by order, grant a permanent exemption under this subsection with respect to petroleum if the petitioner certifies that such powerplant is to be operated solely as a peakload powerplant; a nd (2) in the case of a proposed use of natural gas, the Secretary shall, by order, grant a permanent exemption under this subsection with respect to natural gas if

— , (A) the Administrator of the Environmental Protection Agency (or the appropriate State ai r 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; 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 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 grant a permanent exemption under this subsection for su ch 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 coa l 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 exc eeded; (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 inp ut rate for such powerplant will be maintained 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 granted to a powerplant under this sub section, and shall terminate such exemption when he finds that there is available a supply of synthetic fuel derived from coal or other alternate fuel suitable for use as a primary energy source by such powerplant. (i) PERMANENT EXEMPTIONS FOR INSTALLATION S BASED UPON PRODUCT OR PROCESS R EQUIREMENTS.

— 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 unde r this subsection with respect to natural gas or petroleum, if he finds that the petitioner has demonstrated that

— , (1) the use of coal or another alternate fuel is not technically feasible due to the necessity to maintain satisfactory control of product q uality; and (2) substitution of steam is not technically feasible due to process requirements. (j) PERMANENT EXEMPTION FOR INTALLATIONS NECESSARY TO MEET SCHEDULED EQUIPMENT

OUTAGES.

— After consideration of a petition (and comments thereon) for any exempti on from one or more of the prohibitions of subtitle A for an installation, the Secretary may, by order, grant a permanent exemption under this subsection if he finds that the petitioner has demonstrated that such exemption is necessary to meet scheduled

eq uipment outages (as defined by the Secretary by rule).

SEC. 213. GENERAL REQUIREMENTS FOR EXEMPTIONS.PL 95

– 620, 1978 HR 5146

PL 95

– 620, NOVEMBER 9, 1978, 92 Stat 3289 Page 12

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. (a) USE OF MIXTURES OR FLUIDIZED BED COMBUSTION NOT FEASIBLE.

— , Except in the case of an exemption under section 212 (d) or (g), the Secretary may grant a permanent exemption for a powerplant or install ation under this subtitle only

— , (1) if the applicant has demonstrated that the use of a mixture of natural gas or p etroleum and coal or another alternate fuel, for which an exemption under section 212(d) would be available, is not economically or technically feasible; and (2) if the Secretary has not made a finding that the use of a method of fluidized bed combustion o f coal or another alternate fuel is economically and technically feasible. (b) STATE APPROVAL REQUIRED FOR POWERPLANT.

— If the appropriate State regulatory authority has not approved a powerplant for which a petition has been filed, such exemption

— , (1) to the extent it applies to the prohibition under section 201 (2) against construction without the capability of using coal or another alternate fuel, shall not take effect until all approvals required by such State regulatory authority which
relate to const ruction have been obtained; and (2) to the extent it applies to the prohibition under section 201 (1) against the use of natural gas or petroleum as a primary energy source, shall not take effect until all approvals required by such State regulatory author ity which relate to construction or operation have been obtained. (c) NO ALTERNATIVE POWER SUPPLY IN THE CASE OF A POWER

- PLANT.

— , (1) Except in the case of an exemption under section 212 (c) or (g), the Secretary may not grant an exemption for a new power plant unless he finds that the petitioner has demonstrated that there is no alternative supply of electric power which is available within a reasonable distance at a reasonable cost without impairing short

- run or long

- run reliability of service and which c an be obtained by the petitioner, despite reasonable good faith efforts. (2) The Secretary shall forward a copy of any such petition to the Federal Energy Regulatory Commission promptly after it is filed with the Secretary and shall consult with such Commi ssion before making any finding on such petition under paragraph (1).

SEC. 214. TERMS AND CONDITIONS; COMPLIANCE PLANS.

(a) TERMS AND CONDITIONS GENERALLY.

— Any exemption from any prohibition under this subtitle shall be

on such terms and conditions as t he 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. In the case of any temporary exemption, the terms and conditio ns (which may include a compliance plan meeting the requir ements 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 requirements 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)
evi dence of 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 F ACILITIES
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 primalry energy source in an existing electric powerplant on or after January 1, 1990; (2) natural gas shall not be used as a primairy energy source in an existing electric powerplant before January 1, 1990,
unless su ch powerplant used natural gas as a primalry 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 th an the average yearly proportion of natural gas which

— ,PL 95

– 620, 1978 HR 5146

PL 95

– 620, NOVEMBER 9, 1978, 92 Stat 3289 Page 13

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. (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 January 1, 1974, such powerplant used as a primary energ y source during the first two calendar years of its operation.

The prohibition of paragraph (1) shall be stayed with respect to any existing powerplant pending a resolution (i ncluding judicial review) of any petition for any exemption from such prohibitio n 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 ALTERNATE FUEL CAPABILITY

EXISTS.

— The Se cretary 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 techn ical capability 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, or (B) substantial reduction in the rated capacity of the powerplant; and (3) it is financially feasible to use coal or another alternate fuel as a primary energy source in such powerplant.

The requ irement of paragraph (1) shall not be considered to be satisfied unless the finding under such paragraph is made before the date of the publication of the notice of proposed prohibition under section 701(b) and is published
with such notice. (c) AUTHORITY OF SECRETARY TO PROHIBIT EXCESSIVE USE IN MIXTURES.

— , In the case of any e xisting electric powerplant in which the Secretary finds it is technically and financially feasible to use a mixture of petroleum or natural gas and coal or an alternate fuel as a pr imary energy source, the Secretary may prohibit, in a ccordance with section 303(a), the use of petroleum or natural gas, or both, in such powerplant in amounts in excess of the minimum amount necessary to maintain reliability of operation of the unit consi stent with maintaining reasonable fuel efficiency of such mixture.

SEC. 302. EXISTING MAJOR FUEL

- BURNING INSTALLATIONS.

(a) AUTHORITY OF SECRETARY TO PROHIBIT WHERE COAL OR ALTERNATE FUEL CAPABILITY

EXISTS.

— The Secretary may prohibit, in accordance wit h section 303 (a) or (b), the use of petroleum or natural gas, or both, as a primary energy source in any existing major fuel

- burning installation, if the Secretary finds that

— , (1) such installation has or previously had the technical capability to use coal or another alternate fuel as a primary

energy source; (2) such installation has the technical capability to use coal or another alternate fuel as a primary energy source, or i t could have such capability without

— , (A) substantial physical modification of the unit, or (B) substantial reduction in the rated capacity of the unit; and (3) it is financially feasible to use coal or another alternate fuel as a primary energy source in such installation.

The requirement of paragraph (1) shall not be considered to be satisfied unless the finding under such paragraph is made before the date of the publication of the notice of proposed prohibition under section 701(b) and is published
wit h such notice. (b) AUTHORITY OF SECRETARY TO PROHIBIT EXCESSIVE USE IN MIXTURES.

— , (1) In the case of any existing major fuel

- burning installation in which the Secretary finds it is technically and fina ncially feasible to use a mixture of petroleum or natu ral gas and coal or another alternate fuel as a primary energy source the Secretary may prohibit, in accordance with section 303(a), the use of petroleum or natural gas, or both, in such installation in amounts in excess of the minimum percentage of the to tal Btu heat input of the primary energy sources needed to maintain reliability of operation of the unit consistent with maintaining reasonable fuel efficiency of such
mixture.PL 95

– 620, 1978 HR 5146

PL 95

– 620, NOVEMBER 9, 1978, 92 Stat 3289 Page 14

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. (2) The percentage determined by the Secretary under paragraph (1) shall not be less than 25 percent.

SEC. 303. RULES RELATING TO CASE

- BY

- CASE AND CATEGORY PROHIBITIONS.

(a) CASE

- BY

- CASE PROHIBITIONS.

— (1) Except to the extent authorized by subsection (b), the Secretary shall prohibit any powerplant or installation from using na tural gas or petroleum under the authority 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 o rder 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 sub section 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 t his su bsection, 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 reas on of subparagraph (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 i nstallation 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 ma y, by rule, prohibit the use of natural gas or petroleum 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 ins tallations which have design capabilities of co nsuming fuel (or any mixture thereof) at a fuel heat input rate of 300 million Btu's per hour or greater which are ide ntified in such rule. (2) Each powerplant or installation to be covered by any final rule i ssued under this subsection shall be specifically identified in the proposed rule published under section 701(b). (3) In prescribing any final rule under this subsection, the Secretary shall take into account any special circumstances or characteristics 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 powerpl ant or insta llation which may be filed with the Secretary not later than 60 days after such final rule is published under section 702(a); or (B) with respect to which a comparable prohibition was issued by order (or was proposed but was not issued by reaso n of subsection (a) (3)).

SUBTITLE B

— EXEMPTIONS

SEC. 311. TEMPORARY EXEMPTIONS.

(a) TEMPORARY EXEMPTION DUE TO LACK OF ALTERNATE FUEL SUPPLY, SITE LIMITATIONS, OR ENVIRONMENTAL REQUIREMENTS.

— After consideration of a petition (and comments thereon) for a n e xemption from one or more of the prohibitions of subtitle A for a powerplant or installation, the Secretary shall, by order, grant such an exemption for the use of natural gas or petroleum, if he finds that the petitioner has demonstrated that for the p eriod 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 e nergy source, will not be available to such powerplant or installation at a cost (taking into account associated facilities for the transportation and use of such fuel) which, based upon the best practicable estimates, does not substantially exceed the cos ts, as determined by rule by the Se cretary, of using imported petroleum as a primary energy source;PL 95

– 620, 1978 HR 5146

PL 95

– 620, NOVEMBER 9, 1978, 92 Stat 3289 Page 15

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. (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 requir ements. (b) TEMPORARY EXEMPTION BASED UPON FUTURE USE OF SYNTHETIC FUELS.

— After consideration of a petition (and c omments 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 petroleum, if he finds that the pet itioner has demonstrated that

— , (1) the petitioner will comply with the prohibitions of subtitle 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.

The effectiveness of an exemption under this subsection is conditioned on the petitioner filing and maintaining a compliance plan meeting the requirements o f section 314(b). (c) TEMPORARY EXEMPTION BASED UPON USE OF INNOVATIVE TECHNOLOGIES.

— , After consider ation 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 Secret ary, by order, shall 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 installation will comply with such prohibitions at the expiration of such exempt ion 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 technology. The effectiveness of an exemption under this subsection is c onditioned on the petitioner filing and maintaining a compliance plan meeting the requirements of section 314(b). (d) TEMPORARY EXEMPTION FOR UNITS TO BE RETIRED.

— (1) After consideration of a petition (and comments thereon) for an exemption from one or mor e of the prohibitions of subtitle A for a powerplant or install ation, 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 installation is to permanently cease operation at or before the expiration of the exemption period. An exemption under this subsection is conditioned on the petitioner filing and maintaining a compliance plan meeting the requirements of section 314(b) (oth er than paragraph (1) (B)). (2) Notwithstanding any other provision of this Act, an exemption under this subtitle may not be granted for any powerplant or installation once an exemption under this subsection has been granted for such powerplant or install ation. (e) TEMPORARY PUBLIC INTEREST EXEMPTION.

— 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 for a powerplant or installation, the Secretary ma y, by order, grant an exemption under this subsection for the use of natural gas or p etroleum, 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 co nsistent 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, b y order, grant an exemption under this subsection for the use of natural gas or petroleum, if the petitioner certifies that such powerplant is to be operated solely as a peakload powerplant. (g) TEMPORARY EXEMPTION FOR POWERPLANTS WHERE NECESSARY TO MAINTAIN RELIABILITY

OF SERVICE.

— (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, the Secretary sha ll, 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 exemption is necessary to prevent impairment of reliability of service. (2) Notwithstanding any other provision of this Act, an exemption under this subtitle (other than a permanent e xemption under section 312(f) for the use of petroleum) may not be granted for any powerplant for which an exemption
under this subsection has be en granted. (h) DURATION OF TEMPORARY EXEMPTIONS.

— (1) Except as provided in paragraphs (2) and (3), exemptions under this section for any powerplant or installation may not exceed, taking into account any extension or renewal 5,

years.PL 95

– 620, 1978 HR 5146

PL 95

– 620, NOVEMBER 9, 1978, 92 Stat 3289 Page 16

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. (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 paragraph (1), but such 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

– yea r and 10

– year limitations of paragraphs (1) and (2) in the case of any exemption under this section, the period before the prohibition on the use of natural gas and petroleum 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 SUPPLY, SITE LIMITATIONS, OR ENVIRONMENTAL REQUIREMENTS.

— (1) After consideration of a petition (and comments thereon) for an exemption from one or more of the prohibitio ns of subtitle A for a powerplant or installation, the Secretary shall, by order, grant a 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 e fforts

— , (A) it is likely that an adequate and reliable supply of coal or other alternate fuels 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 inst allation at a cost (taking into account associated facilities for the transportation and use of such fuel) which, based upon the best practicable estimates, does not substantially exceed the cost, as determined by rule by the Se cretary, of using imported p etroleum 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 without violating applicable environmental requirements. (2) Notwithstanding the preceding provisions of this subsection, a powerplant which has been granted an exempt ion under subsection (g) may not be granted an exemption under this subsection. (b) PERMANENT EXEMPTION DUE TO CERTAIN STATE OR LOCAL REQUIREMENTS.

— After consider ation of a petition (and comments thereon) for an exemption from one or more of the prohibiti ons 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 cou ld be granted for such facility; and (3) the granting of the exemption would be in the public interest and would be consistent with the purposes of this Act. (c) PERMANENT EXEMPTION FOR COGENERATION.

— After consideration 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 othe r benefits of cogeneration are unobtainable unless petroleum 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 FUEL MIXTURES CONTAINING NAT URAL GAS OR P ETROLEUM.

— (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 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 heat input of the primary energy sources of such powerplant or installation needed to maintain reliability ofPL 95

– 620, 1978 HR 5146

PL 95

– 620, NOVEMBER 9, 1978, 92 Stat 3289 Page 17

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. operation of the unit consistent with mainta ining a reasonable level of fuel efficiency, as determined in accordance with rules prescribed by the Secretary. (2) In the case of an existing major fuel

- burning installation, the percentage determined by the Secretary under su bparagraph (B) of paragraph (1) shall not be less than 25 percent. (3) In the case of an existing electric powerplant, the Secretary may auth orize 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 altern ate or new technologies which use renewable sources of energy. (e) PERMANENT EXEMPTION FOR EMERGENCY PURPOSES.

— After consideration of a petition (and co mments 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 underr this subsection, if he finds that the petitioner has demonstrated 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, gran t 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 impairment of reliability of service; and (3)(A) modification of the p owerplant 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 POWERPLANTS.

— , (1) After consideration of a petition (and comme nts 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 repla ce 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 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 region; (C) such powerplant is and shall continue to be operated solely as an intermediate load powerplant; (D) the net fuel heat input rate for such powerplant will be maint ained at or less than 9,500 Btu's per kilowatt hour throughout the remaining useful life of the powerplant; and (E) the powerplant has the capability to use synthetic fuels derived from coal or other alternate fuel. (2) The Secretary shall, from time to ti me, 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 primary energy source by such powerplant. (h) PERMANENT EXEMPTION FOR USE OF NATURAL GAS BY CETAIN POWERPLANTS WITH C APACITIES OF LESS THAN 250 MILLION Btu's PER HOUR.

— (1) Subject to paragraph (2), after consideration of a petition (and comments thereon) for an exemption from any prohibition of subtitle A for the use of natural gas by a powerplant, the Secretary shall, by order, grant a permanent exemption under this subsection for such use, if he finds that the petitioner has demonstrated that

— , (A) such powerplant has a desig n capability of consuming fuel (or any mixture thereof) at a fuel heat input rate of less than 250 million Btu's per hour; (B) such powerplant was a baseload powerplant on April 20, 1977; and (C) such powerplant is not capable of consuming coal without

— , (i) substantial physical modification of the unit; or (ii) substantial reduction in the rated capacity of the unit (as determined by the Secretary).PL 95

– 620, 1978 HR 5146

PL 95

– 620, NOVEMBER 9, 1978, 92 Stat 3289 Page 18

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. (2) An exemption under this subsection may only apply to the prohibitions under section 301 and prohibition s established by final rules or orders issued before January 1, 1990. (i) PERMANENT EXEMPTION FOR THE USE OF LNG BY CERTAIN POWERPLANTS.

— , After consideration of a petition (and comments thereon) for a n 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 for the use of liquefied natural gas if the Administrator of the Environmental Protection Agen cy (or the appropriate State air pollution control agency) has certified to the Secretary that the use of coal by such powerplant as a primary energy source will cause or contribute to a concentration, in an air quality control region or any area within su ch region, of a pollutant for 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) PERMANENT EXEMPTION FOR INSTALLATIONS SERVED BY CERTAIN INTERNATIONAL PIP ELINES.

— (1) 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 su bsection for the use of natural gas, if he finds that the petitioner has demonstrated that

— , (A) such installation's primary source of natural gas is under a contract with a pipeline between Canada and the United States which cannot be cancelled by the p etitioner without his suffering substantial financial penalty; (B) such pipeline was supplying to such installation before April 21, 1977, natural gas from Canada under such co ntract; (C) such pipeline serves high

- priority users within the United States se rvice to whom would be jeopardized if service to such installation is terminated; (D) the revenues from the transportation and sale of natural gas transported by such pipeline are essential to the economic vitality of the pipeline; and (E) the exemption is consistent with the purposes of this Act, and the denial of such exemption would not result in natural gas being made available for any other use within the United States. (2) For purposes of this subsection, the term “ high

- priority user ” means any reside ntial user of natural gas, or any commercial user whose consumption of natural gas on a peak day is less than 50 Mcf, as determined by the Secretary. (k) PERMANENT EXEMPTION FOR INSTALLATION BASED UPON PRODUCT OR PROCESS REQUIR EMENTS.

— 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 subse ction, if he finds that the petitioner has demonstrated that

— , (1) the use of coal or other alternate fuels is not technically feasible due to the necessity to maintain satisfactory contro l of product quality; and (2) substitution of steam is not technically feasible due to process requirements. (1) PERMANENT EXEMPTION FOR INSTALLATIONS NECESSARY TO MEET SCHEDULED EQUIPMENT

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, gran t a permanent exemption under this subsection, if he finds that the petitioner has demonstrated that such exemption is necessary to meet scheduled equipment outages (as defined by the Secretary by rule).

SEC. 313. GENERAL REQUIREMENTS FOR EXEMPTIONS.

(a) USE OF MIXTURES OR FLUIDIZED BED COMBUSTION NOT FEASIBLE.

— Except in the case of an exemption under section 312 (b), (f), (i) or (j), the Secretary may grant a permanent exemption for a powerplant or installation under this subtitle only

— , (1) if the appl icant has demonstrated that the use of a mixture of natural gas or petroleum and coal (or other alternate fuels), for which an exemption under section 312(b) would be available, is not economically or technically feasible;
and (2) if the Secretary has not made a finding that the use of a method of fluidized bed combustion of coal or an alternate fuel is economically and technically feasible. (b) NO ALTERNATIVE POWER SUPPLY IN THE CASE OF A POWERPLANT.

— , (1) In the case of an exemption under section 312 (b) or (g), the Secretary may not grant an exemption for an existing powerplant unless he findsPL 95

– 620, 1978 HR 5146

PL 95

– 620, NOVEMBER 9, 1978, 92 Stat 3289 Page 19

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. that the petitioner has demonstrated that there is no alternative supply of electric power which is available within a
reasonable distance at a reasonable cost with out impairing short

- run or long

- run reliability of service and which can be obtained by the petitioner, despite reasonable good faith efforts. (2) The Secretary shall forward a copy of any such petition to the Federal Energy Regulatory Commission promptly after it is filed 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.

(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 conditions requiring the use of effective fuel conservation measures which are practicable and consis tent 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 requir ements of subsection (b)) shall be designed to insure that upon the expiration of such exemption, th e persons and powerplant or installation covered by such exemption will comply with the applicable prohibitions. (b) COMPLIANCE PLANS.

— A compliance plan meets the requirements 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 s uch 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.

(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 satisfied unless the finding under such paragraph is made before the date of the publication of the notice of proposed prohibition under section 701(b). (b) NEW BOILERS.

— The Secretary may proh ibit 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 ca pable of consuming 300 Mcf or more of natural gas per day; and (3) such prohibition is consistent with the purposes of this Act. (c) EXEMPTION.

— The Secretary shall exempt any person from any prohibition prescribed pursuant to subsection (a) or (b) if such person 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 ofPL 95

– 620, 1978 HR 5146

PL 95

– 620, NOVEMBER 9, 1978, 92 Stat 3289 Page 20

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 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 authorized 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 issu ed 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 pursu ant 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
characteri stics 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

— , (i) subject to such rule pending a resolut ion of any petition (including 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 iss ued by order (or was proposed but was not issued because it was demonstrated that it could qualify for an exemption under subsection (c)).

SEC. 402. PROHIBITION ON USE OF NATURAL GAS FOR DECORATIVE OUTDOOR LIGHTING.

(a) PROHIBITION ON INSTALLATION OF NEW OUTDOOR LIGHTING.

— , Effective beginning on the date of the enactment of this Act, no local distribution company, or any industrial user of natural gas who obtains such gas
under a contract between such user and a natural gas pipeline, or any agent thereof, shall install any outdoor lighting fixture using natural gas. (b) PROHIBITION ON SELLING NATURAL GAS TO BE 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 co mpany (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 r esidential, 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 commerci al structure for which natural gas was being provided by such company for outdoor lighting use on the date of the e nactment of this Act; and (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 ind ustrial user of natural gas who obtains such natural gas under a contract between such user and a natural gas pipeline shall be prohibited from using such natural gas for outdoor lighting (unless an exemption has been obtained under subsection (c))

— , (A) e ffective 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 industrial user wa s 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 installation of a replacement lighting fixture for any m emorial light or light of historical signficance, andPL 95

– 620, 1978 HR 5146

PL 95

– 620, NOVEMBER 9, 1978, 92 Stat 3289 Page 21

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. (B) permanently exempt from a prohibition under subsection (b) the use natural gas in any memorial light or light of historial significance.

if a petition for such exemption is made by a Federal, State, or local government agency or by any appropriate hi storical 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 fixture 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 nature, and which conforms with the cultural or architectural style of the area i n which such light is located. (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 continuation of such service in effect
on the date of t he 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 pro tect the dafety of persons or property; (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 section shall be made under criteria which the Secr etary shall establish by rule, which rule shall be prescribed not later than 180 days after the effective date of this Act. (d) PROCEDURES.

— Rules and orders under this section shall be made 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 prohibition under subsection (b) applicable to any person pending the resolution of any petition for an exemption for such person. (e) AUTHORITY MAY BE DELEGATED TO STATES.

— (1) Unde r regulations 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 conditions prescribed by the Secretary and may be rescinded by the Secretary at any time by notifying the State authority of such rescission. (3) Any State authority to which the Secretary has delegated authority under this subsection shall prepare and transmit reports to 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 stationary 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 natrual gas and the sale of natural gas for ultimate consumption. (4) Th e term “ residence ” means any single or multiple family dwelling unit, including commonly held areas assoc iated with any such unit.

SEC. 403. CONSERVATION IN FEDERAL FACILITIES, CONTRACTS, AND FINANCIAL ASSISTANCE

PROGRAMS.

(a) FEDERAL FACILITIES.

— (1) Each Federal agency owning or operating any electric powerplant, majorPL 95

– 620, 1978 HR 5146

PL 95

– 620, NOVEMBER 9, 1978, 92 Stat 3289 Page 22

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 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 wou ld be the case if such powerplant, installation, or unit were owned or operated by a nongovernmental person. (2) The President may, by order, exempt from the application of 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 component of or is used solely in connection with any weaponry, equipment, aircra ft, 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.

Such order shall not take eff ect until 60 days after a copy of such order has been transmitted to each House of the Congress. The President shall review each such determination every 2 years and submit a report to the Congress on the results of such review. Any powerplant, installatio n, 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 operat ed by any such Federal agency shall be entitled to any e xemption by the Secretary 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 nongovernmental 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

— , (A) requiring each Federal agency which is authorized to extend Federal assist ance 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 p etroleum and natural gas, by rule, in such contracting or assistance activities within 180 days af ter issuance of such order, and (B) setting forth procedures, sanctions, penalties, and such other provisions as the President determines necessary to carry out such requirement effectively, including a requirement that each agency annually transmit to the President, and make available 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 pro visions of this subsection if he determines such exemption is in the national interest. The President shall notify the Congress in writing of such exemption at least 60 days before it is effective. (3) The President or any Federal agency may not use the au thority 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. (c) ANNUAL REPORT.

— The President shall annually submit a detailed report to each House of the Congress on the actions taken by the President and each Federal agency to implem ent 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

— , (A) declares a severe energy supply interruption, as defined in s ection 3(8) of the Energy Policy and Conservation Act,

or (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 dura tion, and of an emergency nature; (ii) causes, or may cause, major adverse impact on public health, safety, or welfare or on the economy; andPL 95

– 620, 1978 HR 5146

PL 95

– 620, NOVEMBER 9, 1978, 92 Stat 3289 Page 23

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. (iii) results, or is likely to result, from an interruption in the supply of coal or from sabotage, or an act of G od;

the President may, by order, allocate coal (and require the transportation thereof) for the use of any electric powerplant or major fuel

–

burning installation, in accordance with such terms and conditions as he may prescribe, to insure rel iability of electric service or prevent unemployment, or protect public health, safety, or welfare. (2) For purposes of this subsection, the term “ coal ” ma ns anthracite and bituminous coal and lignite (but does not mean any fuel derivative thereof). (b) EMERGENCY PROHIBITION ON USE OF NATURAL GAS OR PETROLEUM.

— , If the President declares a severe energy supply interruption, as defined in section 3(8) of the Energy Policy and Conservation Act, 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. Notwithstan ding any other provision of this section, any suspension of emission limitations or other requirements of applicable implementation plans, as defined in section 110(d) of the Clean Air Act, required by such prohibition shall be issued only in accordance wi th section 110(f) of the Clean Air Act. (c) EMERGENCY STAYS.

— The President may, by order, stay the application of any provision of this Act, or any rule or order thereunder, applicable to any new or existing electric powerplant, if the President finds, an d publishes such finding, that an emergency exists, due to national, 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
elec tric 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 the President shall transmit to the Congress in accordance with section 551 of the Energy Policy and Conservation Act. Such order shall be subject to congressional review pursuant to such section. (3) Notwithstanding paragraph (1), the effectiveness of any order issued under this section shall not terminate under this subsection during the 15

– calendar

– day period during which any such subsequent order described in paragraph (2) is subject t o congressional review under section 551 of the Energy Policy and Conservation Act. (4) For purposes of this subsection, the provisions of this subsection supersede the provisions of title II of the Act of September 14, 1976 (Public Law 94

— 412; 50 U.S.C. 1 621 and following). (e) DELEGATION OF AUTHORITY PROHIBITED.

— The authority of the President to issue any order under this section may not be delegated. This subsection shall not be construed to prevent the President from directing any Federal agency to iss ue rules or regulations or take such other action, consistent with this section, in the impleme ntation of such order. (f) PUBLICATION AND REPORTS TO CONGRESS OF ORDERS.

— Any order issued under this section shall be published in the Federal Register. To the greatest extent practicable, the President shall, before issuing any order under this section, but in no event later than 5 days after issuing such order, report to the Congress of his intention to issue
such order and state his reasons therefor. (g) EMER GENCY USES OF NATURAL GAS OR PETROLEUM.

— (1) During a temporary emergency condition (other than emergency conditions provided for under section 103(a) (15)), any person operating a peak

- load powerplant or a major fuel

- burning installation may, under rules p rescribed by the Secretary, use natural gas or p etroleum as a primary energy source in such powerplant or installation, notwithstanding any prohibition otherwise imposed by or pursuant to this Act, if

— , (A) such person notifies the Secretary within 24 hour s after commencing such use; and (B) the Secretary has not notified such person that in his judgement the emergency condition does not exist or does not warrant the use of natural gas or petroleum involved. (2) Within 90 days after the effective date of th is Act, the Secretary shall, by rule, prescribe the form and content of such notices and the conditions which may constitute a temporary emergency. (3) Hours of operation allowed under paragraph (1) shall not be included in the peakload powerplant's operat ing hours for the purposes of the penalties in section 723(b).PL 95

– 620, 1978 HR 5146

PL 95

– 620, NOVEMBER 9, 1978, 92 Stat 3289 Page 24

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. SEC. 405. AUTHORITY TO RESTRICT INCREASED USES OF PETROLEUM BY EXISTING

POWERPLANTS.

The Secretary shall, by rule, require that, in the case of any existing electric powerplant which during c alendar year 1977 uses coal or another alternate fuel as a primary energy source, petroleum may not be used in such powerplant as a primary energy source in excess of the quantities of petroleum used in such powerplant as a primary energy source during suc h year unless a permit is issued by the Secretary 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 t o the Secretary (A) that the powerplant cannot comply with the requirements of the Clean Air Act, including any applicable implementation plan, as defined in section 110(d) of the Clean Air Act, without the issuance of such permit and (B) the petitioner ha s established the duration of the need for increased petroleum to comply with such plan; and (2) the appropriate State regulatory authority has certified to the Secretary that the increased use of petroleum by such powerplant is necessary to prevent impair ment of reliability of service.

Such permit shall be issued only for such period as the Secretary determines necessary under paragraph (1) or (2) for such increased use of petroleum.

TITLE V

— SYSTEM COMPLIANCE OPTION

SEC. 501. ELECTRIC UTILITY SYSTEM COMPLIANCE OPTION.

(a) General Rule.

— Existing electric powerplants owned or operated by an electric utility shall be considered in compliance with any prohibition under title III 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 III 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) Requi rements for Plan Approval.

— The Secretary shall, by order, approve any plan of system compliance su bmitted by an electric utility to the Secretary before January 1, 1980, if the Secretary finds that such plan

— , (1) identifies all powerplants owned or opera ted by such electric utility and indicates which of the powerplants

— , (A) would be subject to, or could be subject to, prohibitions under title III relating to the use of natural gas if such plan were not approved; and (B) of those so indicated in subparag raph (A), would be, or in the opinion of such electric utility would be likely to be, entitled to an exemption under title III relating to the use of natural gas if such plan were not approved; (2) contains a commitment that, if such plan is approved, no n ew electric powerplant which is or is to be a base load powerplant owned or operated by such utility shall use natural gas or petroleum as its primary energy source (whether or not such powerplant

could qualify for an exemption under title II for such use ); (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 rules prescribed by the Secretary; and (B) on and after January 1, 2000 , would not use natural gas as a primary energy source except in the case of a te mporary extension obtained under subsection (d); (4) contains a commitment that, if such plan is approved, natural 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,PL 95

– 620, 1978 HR 5146

PL 95

– 620, NOVEMBER 9, 1978, 92 Stat 3289 Page 25

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. (B) the electric utility's minimum peakloa d 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 enactment 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 such date, or an extension or renewal occuring on or after such date of a contract extension, or renewal has been approved by the Secretary under subsection (g); and (6) contains a 10

– year forecast of such utility's demand for electricity, a 10

– year construction forecast, and a 10

– year financial plan, 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 su ch plan to the extent provided under rules prescribed by the Secretary. (c) Plan Revision.

— 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 pur poses 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 c onsistent 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 demonstr ated that such natural gas is used solely for emergency or peakload purposes described in paragraph (1)(A) or (B). (e) Determination of Base Period Usage.

— (1) For purposes of subsection (b)(4)(A), an electric utility's base period usage of natural gas shal l be the sum of

— , (A) the quantities of natural 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 Januray 1, 1976; plus (B) one

- half of the quantities used during the fir st 24 calendar

– months after being placed in service by powerplants which are owned or operated by such utility and which were placed in service after January 1, 1976, and before the
effective date of this Act. (2) The Secretary may allow for the substituti on of a higher percentage for the 20 percent specified in subparagraph (A) of subsection (b)(4) if he determines that the utility has demonstrated that 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 perc entage without impairing reliability of service. (f) Determination of Minimum Peakload Requirement.

— For purposes of subsection (b)(4)(B), an electric utility's minimum peakload 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) Approva l 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 determines that the electric utility which submitted such plan has demonst rated 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, whic h 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 conditio ns requiring the use of effective fuel conserv ation 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 criteria and guidelines as the Secretary of Agr iculture shall, by rule, prescribe, the Governor of any State may designate any area within such State for the purposes ofPL 95

– 620, 1978 HR 5146

PL 95

– 620, NOVEMBER 9, 1978, 92 Stat 3289 Page 26

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. this section, if he fin ds 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 increa se 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 substantial increases in housing or public facilities and
services or a combination of bot h 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 reasonble time.

The Secretary of Agriculture shall pre scribe a rule containing criteria and guidelines for making a designation under this subsection, after 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 p aragraph (1)(C), increased revenues, including 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 u sed under provisions of law in effect on the date of the enactment 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 Agricultur e, approve any desgnation of an area under paragraph (1) only if

— , (A) the Governor of the State making the designation provides the Secretary in writing with the data and information on which such designation was made, together with such additional inform ation as the Secretary may require to carry out the purposes of this section; and (B) the Secretary determines that the requirements of subparagraphs (A), (B), and (C) of paragraph (1) have been met. (b) Planning Grants.

— (1) The Secretary of Agriculture ma y make a grant to any State in which there is an area de signated and 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 activitie s in such area; (B) the socio

- economic impacts which have occured 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 s ocio

- economic impacts determined under subparagraph (B) (such as any increased need for housing, or public facilities and services); and (D) the nat ure 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 sub section 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 appropriat ed for purposes of this section for such year. (3) The Governor of a State receiving a grant under this subsection for developing a plan shall submit a copy of such plan to the Secretary of Agriculture as soon as practicable after it has been prepared. (c) Land Acquistion 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 ne cessary 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 financial 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 Ag riculture may acquire such real property or interest therein, by purchase, donation, lease, or e xchange. Property so acquired shall be transferred to the State under such terms and conditions as the Secretary of Agriculture deems appropriate. Such terms an d conditions shall provide for the reimbursement to the Secretary of Agriculture for the fair market value of the property, as determined by the Secretary of Agriculture. The value of anyPL 95

– 620, 1978 HR 5146

PL 95

– 620, NOVEMBER 9, 1978, 92 Stat 3289 Page 27

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. improvement of such property made after such acquisition shall not b e taken into account in determining the fair market value of such property under this subsection. Amounts so received by the Secretary of Agriculture shall be deposited in the Treasury of the United States as miscellaneous receipts. (2) Any approval by a G overnor of a State under paragraph (1) (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 paragraph (1). (3) The Secretary of Agriculture may acquire property under paragraph (1) by condemnation only if he finds that

— , (A) such property is not available by means other than condemnation at a price which does not substantially exceed the
fair market value of su ch property; (B) other real property is not similarly available which is within the same designated area and which is suitable for the purposes to which the property involved is to be applied; and (C) the State and the local governments serving such area l ack the legal authority to acquire such property by co ndemnation. (4)(A) In the case of any real property which meets the requirements 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 Agriculture under paragraph (1) an d transferred to the State, the Secretary of Agriculture may make a grant to such unit of government for the purposes of the site development which is consistent with such plan. (C) Grants for real property acquisition or site development or both under thi s paragraph may not exceed 75 percent of the costs therof, as determined by the Secretary of Agriculture. (5) In the selection of real propery for acquisition and in such acquisition under this subsection, preference shall be given to real property which t he 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 any Indian tribe may not be acquired by condemnation
under this section. (B) No proper ty within the National Forest System (as defined in section 10 of the Forest and Rangeland Renewable Resources Planning Act of 1974) may be exchanged by the Secretary in any acquisition under paragraph (1). (d) General Requirements Regarding Assistance.

— (1 ) Assistance under this section shall be provided only upon application, which application shall contain such information as the Secretary of Agriculture 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 governments 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 Secretary of Agriculture shall prescribe, by rule criteria for the allocation of assistance under this section. Such criteria shall give due weight to the magnitude of the employement 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 provide d only if the Secretary of Agriculture is satisfied that

— , (A) the amounts expended by the State and the local governments involved for the same purposes for which such assistance is provided will not be reduced; and (B) the amount of such assistance does not reflect any amount for which other Federal financial assitance is provided or on proper application would be provided. (e) Definitions.

— For the purposes of this section

— , (1) The term “ coal or uranium development activities ” means the production, proce ssing, or transportation of coal or
uranium. (2) The term “ site development ” means necessary off

- site improvements, such as the construction of sewer and water connections, construction of access roads, and appropriate site restoration, but does not includ e any portion of the construction of housing or public facilities. (f) Reports.

— Any person regularly engaged in any coal or uranium development activity within an area designated and approved under subsection (a) shall prepare and transmit a report to the Secretary of Energy within 90 days after a written request to such person by the Governor of the State in which such area is located. Such report shall include

— ,PL 95

– 620, 1978 HR 5146

PL 95

– 620, NOVEMBER 9, 1978, 92 Stat 3289 Page 28

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. (1) projected employment levels for such activity by such person 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 of the report shall be provided to the Secretary of Energy and the Secretary shall, subject to the provisions of section 11(d) of the Energy Supply and Environmental Coordination Act of 1974, provide the report to the Secretary of Agriculture, the Governor, a nd the appropriate county or local officials and make it available for public review. (g) Administration.

— The Secretary of Agriculture shall carry out his 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 authorized 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 fiscal year 1980. The Secretary of Energy and the Secretary of Agriculture shall enter into an agr eement for the allocation of funds appropriated pursuant to this section for carrying out their respective responsibilities under this section, including the amounts for personnel and administrative cost, and upon such agreement, the Secretary of Energy sh all transfer to the Secretary of Agr iculture amounts determined under that agreement. (i) Protection From Certain Hazardous Actions.

— Federal agencies having responsibilities concerning the health and safety of any person working in any coal, uranium, metal , or nonmetallic mine regulated by any Federal agency shall interpret and utilize their authorities fully and promply, 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 coal, uranium, metal, and nonmetallic mines from actions occurring at such activities that pose a hazard to such property or persons. (j) Reorganization.

— The authority of the Secretary of Agriculture and th e 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 other provision of law, other than under specific provisions of a law enacted after the date of the enactment of this Act. The preceding provisions of this subsection shall not preclude either Secretary from delegating 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 EQUI PMENT.

(a) Authority To Make Loans.

— The Secretary may, in accordance with the provisions of this section and such rules and regulations as he shall prescribe, make a loan (and may ma ke a commitment to loan) 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 effective date of this Act for the purpose of financing the purchase and installa tion 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 installing 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 rate not less than (A) a rate dete rmined by the Secretary of the Treasury, takin into consideration the average market yield of outstanding Treasury obligations of comparable maturity, plus (B) 1 percent; (4) be made on the condition of payment to the Secretary of a loan fee in an amount e qual to (A) such insurance fee as the Secretary 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

— , (A) the financial assistance applied for i s not otherwise available from other Federal agencies; (B) the applicant is unable to obtain sufficient funds on reasonable terms and conditions from any other source;PL 95

– 620, 1978 HR 5146

PL 95

– 620, NOVEMBER 9, 1978, 92 Stat 3289 Page 29

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. (C) there is continued reasonable assurance of full repayment

of the principal, interes t, and fees; and

(D) competition among private entities for the provision of air pollution control devices for electric powerplants using coal as their primary energy source to be assisted under this 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

— , (1) allocate a minimum of 25 percent of available financial assistance to existing small municipal and rural powerplants; and (2) give pri ority consideration to request for financial assistance by existing electric powerplants subject to any pr ohibition under title III (or under section 2 of the Energy Supply and Environmental Coordination Act of 1974). (d) Definitions.

—

For purposes of this section

— , (1) The term “ certified pollution control device ” means a new indentifiable device which

— , (A) is used, in connection with a powerplant, to abate or control atmospheric pollution by removing, altering, di sposing storing, or preventing the emissio n of pollutants; (B) the appropriate State air pollution control agency has certified to the Administrator of the Environmental Prote ction Agency that such device is needed to meet, and is in conformity with, State requirements for abatement or
control of atmospheric pollution or contamination; (C) the Administrator of the Environmental Protection Agency has certified to the Secretary as not duplicating or displacing existing air pollution control devices with a remaining useful economic life in excess of 2 years and as otherwise being in furtherance of the requirements and purposes of the Clean Air Act; (D) does not constitute or include a building, or a structural component of a building, other than a building used e xclusively for the purposes set forth in subparagraph (A); and (E) the construction of which began after the effective date of this Act. (2) The term “ small municipal or rural cooperative electric powerplant ” means an electric generating unit, which

— , (A) by design is not capable of consuming fu el at a fuel heat input rate in excess of a rate determined appropriate by the Secretary by rule; and (B) is owned or operated by a municipality or a rural electric cooperative. (e) Records.

— (1) The Secretary shall require all persons receiving financial a ssistance under this section to keep such records as the Secretary 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 conn ection with which such assistance was given or used, the amount of that portion of the cost of the project or undertaking supplied by other sources, and such other records as will facilitate an effective audit. (2) The Secretary and the Comptroller General of the United States, or any of their duly authorized representatives, shall, until the later of

— , (A) the expiration of 3 years after completion of the project or undertaking referred to in subsection (a), or (B) full repayment of interest and principal on a loan made under this section, occurs,

have 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 pert inent to such loan. (f) Default.

— (1) If there is a default in any payment by the obligor of interest or principal due under a loan entered into by the Secretary under this section and such defalut has continued for 90 days, the Secretary has the right to demand payment of such unpaid amount, unl ess the Secretary finds that such default has been remedied, or a satisfactory plan to remedy such default by the obligor has been accepted by the Secretary. (2) In demanding payment of unpaid interest or principal by the obligor, the Secretary has all rig hts specified in the
loan

- related agreements with respect to any security which he held with respect to the loan, including the authority to complete, maintain, operate, lease, sell, or otherwise dispose of any property acquired pursuant to such loan or re lated
agreements. (3) If there is a default under any loan, the Secretary shall notify the Attorney General who shall take such action against the obligator or other parties liable thereunder as is, in his discretion, necessary to protect the interests of the United States. The holder of such loan shall make available to the United States all records and evidence necessary toPL 95

– 620, 1978 HR 5146

PL 95

– 620, NOVEMBER 9, 1978, 92 Stat 3289 Page 30

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. prosecute any such suit. (g) Deposit of Receipts.

— Amounts received by the Secretary as principal, interest, fees, proceeds from secur ity a cquired following default, or other amounts received by the Secretary in connection with loans made under this section shall be paid into the Treasury of the United States as micellaneous receipts. (h) Authorization of Appropriation.

— There are hereby authorized to be appropriated to the Secretary such sums as may be necessary to carry out the purposes of this section, but not to exceed $400,000,000 for fiscal year 1979 and $400,000,000 for fiscal year 1980. Authority granted to the Secretary under subs ection (a) may be exercised only to the extent as may be provided in advance in appropriation Acts.

TITLE VII

— ADMINISTRATION AND ENFORCEMENT
Subtitle A

— Procedures

SEC. 701. ADMINISTRATIVE PROCEDURES.

(a) General Rules Making

— Except to the extent other w ise provided in this section or other provisions of this Act, rules prescribed under this Act shall be made in accordance with the procedures set forth in section 553 of title 5,
United States Code. (b) Notices of Rules and Orders Imposing Prohibitions.

— Be fore the Secretary prescribes any rule or issues any order imposing a prohibition under this Act (other than under section 402), he shall publish such proposed rule or order in the Federal Register, together with a statement of the reasons for such rule or order and, in the case of a rule, a detailed statement of any special circumstances or characteristics required to be taken into account in prescribing such rule. A copy shall be transmitted to the person who operates any such powerplant or installation r equired to be specifically
identified in such rule or order. (c) Petitions for Exemptions.

— (1) Any petition for an exemption from any prohibition under this Act or for any permit under section 405, shall be filed at such time and shall be in such form as t he Secretary shall by rule prescribe. The Secretary, upon receipt of such petition, shall publish a notice thereof in the Federal Register together with a statement of the reasons set forth in such a petition for requesting such exemption or permit, and pr ovide a period of public comment of at least 45 days for written comments thereon. Rules required under this paragraph shall be prescribed not later than 120 days after the date of the enactment of this Act. (2) The Secretary, upon recept of such petition, shall notify the appropriate State agencies having primary authority to permit or regulate 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 m aximum extent practicable, consult with such agencies. (3) The Secretary, within 6 months after the period for public comment and hearing applicable to any petition for an exemption or permit, 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 statment 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 On PROHIBITIONS AND EXEMPTIONS.

— (1) In the case of any p roposed rule or order by the Secretary imposing a prohibition or any petition for any order granting an exemption (or permit) under this Act (other than under section 402), any interested person shall be afforded an opportunity to present oral data, views, 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 pre sentations or who have parti cipated in the development of the proposed rule or order or in the consideration of such petition, and (C) experts and consultants who have provided information to any person who makes an oral presentation and which is contained in or referred to in such presentation,

with respect to disputed issues of material fact, except that the Secretary may restrict questioning if he determines that such questioning is duplicative or is not likely to result in a timely and effective resolution of such issues. Any oral or documentary evidence may be received, but the Secretary as a matter of policy shall provide for th e exclusion of irrelevan, immaterial, or unduly repetitious evidence.PL 95

– 620, 1978 HR 5146

PL 95

– 620, NOVEMBER 9, 1978, 92 Stat 3289 Page 31

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. (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 Secretary 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 under the Clean Air Act. In any such case, the Administrator of the Environmental Protection Agency shall be afforded the same opportunity to comment and question as is pro vided other interested persons under subsection (d). (g) Federal Trade Commission Comment.

— A copy of any proposed rule or order to be prescribed or issued by the Secreatry which imposes a prohibition under this Act (other than under section 402 or 404) wit h respect to a major
fuel

- burning installation or a boiler subject 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 F ederal Trade Commission 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 provide d other interested persons under subsection (d). (h) Coordination With 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 U.S.C. 7191, et seq.) sha ll 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 af fected by any other provision 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,

r eferring 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 Allow for Review.

— Any final rule or order prescribed by the Secretary imposing a prohition or granting an exemption (or permit) 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 Den ial of Exemption or Permit.

— Any final order issued by the Secretary denying any petition for an exemption 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 petiton 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 shal l be forthwith transmitted by the clerk of the court to the Secretary. The Secretary thereupon shall file in the court the written submissions to, and transcript of, the written or oral proceedings on which the rule or order was based as provided in sectio n 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 grant appro priate 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 b e final, subject to review by the Supreme Court of the United States upon certiorari or certification as provided in section 1254 of title 28, United States Code. (4) Subject to the direction and control of the Attorney General, as provided in section 519 of title 28, United StatesPL 95

– 620, 1978 HR 5146

PL 95

– 620, NOVEMBER 9, 1978, 92 Stat 3289 Page 32

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Code, attorneys appointed by the Secretary may appear for and represent the Secretary in any proceeding instituted under this section in accordance with section 502(c) of the Department of Energy Organization Act.
Subtitle B

— Info rmation and Reporting

SEC. 711. INFORMATION.

(a) Authority of Secretary.

— For purposes of carrying out his responsibilities under this Act, the Secretary may r equire, 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 Energy Supply and Environmental Coordination Act of 1974 shall apply with r espect 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 Regulatory 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.

Any person owning, operating, or proposing to operate one or more exist ing 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 b y such person. Such report
shall

— , (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 commitments or good faith nego tiations for such contracts or commitments 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 applicati on for temporary or permanent exemption from the prohibitions of this Act may be filed.
Subtitle C

— – Enforcement

SEC. 721. NOTICE OF VIOLATION; OTHER GENERAL PROVISIONS.

(a) Notice of Violation.

— (1) Whenever, on the basis of any information available, the Secretary finds that any person is in violation of any provision of this Act, or any rule or order thereunder, the Secretary shall issue notice of such violation. Any notice issued under this subsection shall be in writing and shall state with reasonable specificity the
nature of the violation. (2) Paragraph (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 Corpora te Personnel

— Any individual director, officer, or agent of a corporation who willfully authorizes, orders, or performs any of the acts or practices constituting in whole or in part a violation of this Act, or any rule or order thereunder, shall be subject to penalties under this section without regard to any penalties to which the corporation may be subject, except that no such individual director, officer, or agent shall be subject to imprisonment under section 722, unless he also knew of noncompliance by the corporation or had received from the 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 r espect to the operation of any powerplant in ex cess of that allowed by an exemption granted on the basis of the ope ration of such powerplant as a peakload powerplant if it is demonstrated to the Secretary that such operation wasPL 95

– 620, 1978 HR 5146

PL 95

– 620, NOVEMBER 9, 1978, 92 Stat 3289 Page 33

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. necessary to meet peakload demand and that other peakload powerplants with in the 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 an exemption; and (2) have not been operated other than to meet peakload demand. (d) Federal Agencies.

— The provisions of sections 722 and 723 shall not be construed to apply to any Federal agency or officer or employee therof acting in his official capacity.

SEC. 722. CRIM INAL PENALTIES

Any person who willfully violates any provision of this Act (other than 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

vio lation.

SEC. 723. CIVIL PENALTIES.

(a) General Civil Penalty.

— Any person who violates any provision of this Act (other than section 402), or rule or order thereunder, shall be subject to a civil penalty, which shall be assessed by the Secretary, of not m ore than $25,000 for each violation. Each day of violation shall constitute a separate violation. (b) Civil Penalties for Operation or Use of Fuels in Excess of Exemption.

— (1) In the case of any electric powerplant granted an exemption, any person who oper ates such powerplant during any 12

– calendar

– month period in excess of that authorized in 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 petrol eum 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 petroleum 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 natura l 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 prohibiti on 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 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 shall provide to such person notice of the proposed penalty. Such notice shall inform s uch 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. (2)(A) Unless an election is made w ithin 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 viol ation has been made on the record after an opportuni ty for an agency hearing pursuant to section 554 of title 5, United 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 paragraph may, within 60 calendar days after the date ofPL 95

– 620, 1978 HR 5146

PL 95

– 620, NOVEMBER 9, 1978, 92 Stat 3289 Page 34

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. the order of the Secretary assessing such penalty, institute an action in the United States court of appeals for the a ppr opriate 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 Secre tary, or the court may remand the proceeding to the Secretary 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 as sess such penalty, by order, after the date of the receipt of the notice under paragraph (1) of the proposed penalty. (B) If the civil penalty has not been paid within 60 calendar days after the assessment order has been made under subparagraph (A), the Se cretary 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 jurisdictio n to enter a judgement 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 an y person fails to pay an assessment of a civil penalty after 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 par agraph (3), the Secretary s hall institute an action to recover the amount of such penalty in any appropriate district court of the United States. In such action, the validity and appropriateness of such final assessment order or judgement shall not be subject to review. (5)(A) Notwi thstanding the provisions of title 28, United States Code, or of section 502(c) of the Department of E nergy Organization Act, the Secretary shall be represented by the general counsel of the Department of Energy (or any attorney or attorneys within the Dep artment of Energy designated by the Secretary) who shall supervise, 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 i n any other court, except the Supreme Court. However, the Secretary or the general counsel shall consult with the Attorney General concerning such litigation, and the Attorney General shall provide, on request, such assistance in the conduct of such litiga tion 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 approprite, in actions under this subsection, except to the extent provided in subparagraph (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 under this subsection.

SEC. 724. INJUNCTIONS AND OTHER EQU ITABLE RELIEF.

Whenever it appears to the Secretary that any person has engaged, 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 wi th section 502(c) of the Department of Energy Organization Act, in the appropriate district court of the United States to enjoin such acts or practices, and, upon a proper showing, the court shall grant, without bond, mandatory or prohibitive injuctive rel ief, including interim equitable relief.

SEC. 725. CITIZENS SUITS.

(a) General Rule.

— Except as otherwise provided in subsection (b), any aggrieved person may commence a civil action for mandatory or prohibitive injuctive relief, including interim equitab le 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 Secretary or such agency head to perform any act or duty under this Act jurisdiction over actions brought und er this section, without regard to the amount in controversy or the citizenship of the parties. (b) Notice to Secretary or Agency Head.

— No action may be commenced under subsection (a) before the 60th ca lendar day after the date on which the plaintiff has g iven 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, mayPL 95

– 620, 1978 HR 5146

PL 95

– 620, NOVEMBER 9, 1978, 92 Stat 3289 Page 35

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. intervene 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 litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate. (e) Other Remedies To 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 INTERE ST.

(a) Right To Transfer Contractual Interests.

— (1) If any person receives natural gas, the use of which is prohibited by the provisions of title II or title III or any rule or order thereunder, and if such natural gas is received pursuant to a

contract in effect on April 20, 1977, between such person and any other person, such person receiving such natural gas may transfer all or any portion of such person's contractual 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 maximum 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 d etermined by the Commis sion) 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 national basis (as may be appropriate) of the criteri a specified in subsection (e)(1) to determine the maximum consideration permitted as just compensation under this section. (2) The person transferring contractual interests pursuant to subsection (a)(1) and the person to whom such interests
are transferred may agree on the amount of, method of determining, the consideration 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 dete rmined by application of the guidelines prescribed by the Commission under paragraph (1). (3) In the event the person transferring contractual interests pursuant 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 transfer, the Commission may, at the request of both such persons, prescribe the amount of, or method of determining, such consideration. Upon the requ est of either such person, the Commission shall make such determination on the record, after an opportunity for agency hearing. In any such latter case, the determination of the Commission shall be binding upon the party requesting that such determination be made on the record of the agency hearing. The consideration prescribed by the Commission shall not exceed the maximum co nsideration permitted as just compensation under this section. In prescribing the amount of, or method of determining,
consideration under this paragraph, to the maximum extent practicable, the Commission shall utilize any liquidated damages provision set forth in the applicable contract, but in no event may the Commission prescribe consideration in excess of the maximum consideration p ermitted as just compensation under this section. . (4) In the event that the consideration agreed under paragraph (2) exceeds the consideration determined by application of the guidelines prescribed by the Commission under paragraph (1), the Commission ma y approve such agreed

- upon consideration if the Commission determines such agreed

– upon consideration does not exceed the maximum consi deration permitted as just compensation under this section. (5) If consideration is agreed upon under paragraph (2) and su ch consideration exceeds the consideration determined by application of the guidelines prescrbed under paragraph (1), but does not exceed the maximum consideration permitted as just compensation under this section, the Commission may not require a refund o f any portion of the agreed

– upon consideration paid with respect to deliveries of natural gas occuring prior to the Commission's action under paragraph (4) approving or disapproving such consideration unless the Commission determines

— , (A) such agreed

- upon consideration was fraudulently established; (B) the processing of the request for approval of such agreed

– upon consideration under paragraph (4) was willfully delayed by a party to the transfer; orPL 95

– 620, 1978 HR 5146

PL 95

– 620, NOVEMBER 9, 1978, 92 Stat 3289 Page 36

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. (C) such agreed

- upon consideration exceeds the maximum co nsideration permitted as just compensation under this
section. (c) Restrictions on Transfers Unenforceable.

— (1) Any provision of any contract, which prohibits any transfer a uthorized by subsection (a)(1) or terminates such contract on the basis of such tra nsfer, 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 transfer authorized subsection (a)(1). (d) Contractual Obligations Unaffected.

— The person acquiring contractual i nterests transferred pursuant to subse ction (a)(1) shall assume the contractual obligations which the person transferring such contractual interests has under such contract. This subsection shall not relieve the person transferring such contractual interes t from any contractual obligation of such person under such contract if such obligation is not performed by the person acquiring such co ntractual interests. (e) Definitions.

— For purposes of this section

— , (1) The term “

just compensation ” , when used with re spect to any transfer of contractual interest authorized by su bsection (a)(1), means the maximum amount of, or method of determining, consideration which does not exceed the amount by which

— , (A) the reasonable costs (excluding capital costs) incurred, dur ing 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 existing 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 pri mary energy source shall include an allowance for the amortization, over the remaining useful life, of the und epreciated value of depreciable assets located on the premises containing such electric powerplant or major fuel burning installation, which asset s were directly associated with the use of natural gas and not usable in connection with the use
of such other fuel. (2) The term “

just compensation ” , when used with respect to subsection (a)(2), means an amount equal to any loss of revenue, during the rem aining period of the contract with respect to which contractual interests are transferred pu rsuant 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 distribution which would not have o ccurred if such contractual interests had not been transferred. (3 ) The term “ 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 with the Commission or the appropriate State regulatory authority. (4) The term “ State ” means each of the several States, the District of Columbia, Puerto Rico, any territory or posse ssion 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 co mmerce subject to the 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 occuring 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 With the Natural Gas Act.

— (1) Consideration paid by any interstate pipeline pursuant to this section shall be deemed just and reasonable for purposes of sections 4, 5, and 7 o f the Natural Gas Act. The Commission shall not deny a passthrough by such interstate pipeline of such consideration based upon the amount of such consideration paid pursuant to this section. (2) No person shall be subject to the jurisdiction of the Commis sion 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 which the transfer of contractual interes t is authorized under subsection (a)(1). (3) Nothing in this section shall exempt from the jurisdiction of the Commission under the Natural Gas Act anyPL 95

– 620, 1978 HR 5146

PL 95

– 620, NOVEMBER 9, 1978, 92 Stat 3289 Page 37

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. transportation in interstate commerce of natural gas, any sale in interstate commerce for resale of natu ral 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 obligation 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 co ntractual inter ests is authorized under subsection (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 suppli er of natural gas under any contract, with respect to which contractual interests have been transferred 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 volum e determined by reference to the maximum delivery obligations specified in such contract; (2) the volume which such supplier would have been required to supply, under the curtailment plan in effect for such supplier, to the person, who transferred contract ual interests under subsection (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 II or title III of this Act or any rule or order thereunder; and (4) the volume actually delivered or for which payment would have been made pursuant to such contract during the

12

– calendar

– month period ending immediately before such transfer of contractu al 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 Administrator of the Enviromental 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 e nhancement of the quality of the environment and for economic recovery and full employment. In particular the study should identify and evaluate

— , (1) current and prosp ective 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; (3) current and prospective coal resource production, transportation, 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, manpowe r, 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 secrity and environmental protection; (7) existing and prospective governmental policies and laws affecting 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 consolidte, coo rdinate, and provide an e ffective and equitable national energy policy consistent with other national policies; and (8) the most efficient use of the Nation's coal resources considering economic (including capital and consumer costs, and balance of payments), social (including emp loyment), environmental, 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 wit h 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 reco mmendations with respect to

— ,PL 95

– 620, 1978 HR 5146

PL 95

– 620, NOVEMBER 9, 1978, 92 Stat 3289 Page 38

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. (1) the Nation's projected coal needs nationally and reg ionally, for the next 2 decades with particular reference to electric power; (2) the coal resources available or which must be developed to meet those needs, including, as applicable, the pr ograms for research, development, and demonstration necessary to p rovide technological advances which may greatly enhance the Nation's ability to efficiently and economically utilize its fuel resources, consistent with applicable e nvironmental requirements; (3) the air, water, and other pollution created by coal requirem ents, including any programs to overcome promptly and efficiently any technological or economic barriers to the elimination of such pollution; (4) the existing policies and programs of the Federal Government and of State and local governments, which have a ny significant 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, inclu ding roads, railroads, and waterways to meet projected i ncreases in coal production and utilization.

Before submitting a report to the Congress under subsection (b), the President shall publish in the Federal Register a notice and summary of the proposed report, make copies of such report available, and accord interested persons an opportunity (of not less than 90 days' duration) to present written comments; and shall make such modifications of such report as he may consider appropriate on the basis of suc h comments. (c) Authorization of Appropriations.

— There is hereby authorized to be appropriated to the Secretary for allocation between the Department of Energy and the Environmental Protection Agency for fical 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 competion study.

(a) Study.

— The Secretary shall make a complete investigation of the performance and competion of the coal industy. The study shall

be an inte ragency effort under the direction of the Secretary and shall include participation by

— , (1) the Federal Trade Commission, (2) the Department of Justice, (3) the Department of Energy, (4) the Federal Energy Regulatory 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 Counc il on Wage and Price Stability, (13) the Tennessee Valley Authority, and (14) the Applalachian 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 electric al generation and steelmaking,PL 95

– 620, 1978 HR 5146

PL 95

– 620, NOVEMBER 9, 1978, 92 Stat 3289 Page 39

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. (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, (3) overall profitability of coal operations, (4) capital requirements, sources and uses of funds,

(5) vertical integration of production, cleaning, processing, gasification, liquefaction, transportation, marketing, di stribution, combustion, and other phases of the coal fuel cycle, (6) the effect of interfuel ownership, vertical integration, and market concentration upon innovation, efficiency, prices and profits, (7) costs of production, transportation, processing, and other components of coal prices for different regions and different types of mines, (8) responsiveness of coal supply to market demand, (9) productive capacity, (10) productivity, (11) economics and disconomies of scale, (12) distribution and flow of executive, managerial, and technical personnel between the various coal producers, (13) management and directorate interlocks, (14) relations hips to financial institutions, (14) relationships to financial institutions, (15) government

- industry relationships, including lease bidding, technology, research, development, demonstration and transfer, and personnel movement, (16) joint ventures, conso rtia, 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

- prod ucing Counties and States.

— The study shall evalute 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 of Metallugical Coal.

— The study shall identify and evalute national policies toward the export of meta llurgical coal as they relate to

— , (1) national secrity, (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 metallurigical technologies. (e) Reports.

— (1) Pursuant to the provisions of the preceding subsections 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 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. (2) Before submitting a report to the Congress under paragraph (1), the President shall

— , ( A) publish in the Federal Register a notice and summary of 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 modific ations of such report as he may consider appropriate on the basis of such comments. (f) A u-PL 95

– 620, 1978 HR 5146

PL 95

– 620, NOVEMBER 9, 1978, 92 Stat 3289 Page 40

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. thorization of Appropriations.

— There is authorized to be

appropriated to the Secretary for allocation between the Department of Energy and the other agencies partici pating 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.

(a) Evaluation.

— The Secretary shall conduct continuing evaluations of potenti al loss or shifts of employment which may result from any prohibition under this Act, including, if appropriate, investigating threatened plant closures or reductions in employment allegedly resulting from such prohibition. The results of such evaluations and each inve stigation shall promptly be made available to the public. (b) Investigation and Hearings.

— On a written request filed with the Secretary by or on behalf of any employee who is discharged or laid off, threatened with discharge or layoff, or othe rwise discriminated against, by any person because of the alleged effects of any such prohibition, the Secretary shall investigate the matter and, at the request of any party, shall hold public hearings, after not less than 30 days notice, at which the Sec retary shall require the parties, including any employer involved, to present information on the actual or potential effect of such prohibition on employment and on any alleged employee discharge, layoff, or other discrimination relating to prohibitions an d the detailed reasons or justification therefor. At the completion of such investigation, the Secretary shall make findings of fact as to the effect of such prohibition on employment and on the alleged employee discharge, layoff, or discrimination and sha ll make such recommendations as he deems appropriate. Such report, findings, and recommendations shall be available to the public. The Secretary of Labor shall participate in each such investigation. (c) Rule of Construction.

— Nothing in this section shall be construed to require or authorize the Secretary to 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 the problems of compliance with this Act experienced by those electric utility systems which have a total system generating capacity of less than 2,000 megawatts. The Secretary shall report his findings and his recommendations to the Congress not later than 2 years after the effect ive date of this

Act. (b) Authorization of Appropriations.

— There is authorized to be appropriated to the Secretary for the fiscal year 1979 not to exceed $500,000 to carry out the provisions of this section.

SEC. 745. EMISSIONS MONITORING.

(a) Monitoring Program.

— The Administrator of the Environmental Protection Agency shall conduct, on a continuing basis, a program of monitoring, to the greatest extent possible and in accordance with applicable authorities and provisions of the Clean Air Ac t, the emissions from new and existing electric powerplants and major fuel

– burning installations required to use coal or other alternate fuels by reason of this Act or otherwise using coal or other alternate fuels and the effect thereof on the public healt h, safety, and welfare and the movement of such emissions in the a tmosphere and their impact on land and water and other resources and the public health in various regions of the N ation. Such Administrator shall submit an annual report to the Congress on s uch program. In carrying out his respo nsibilities under this section, the Administrator of the Environmental Protection Agency shall consult with the other Federal and State agencies concerned with the health effects of such emissions. (b) Apporpriations A

uthorizations.

— There is authorized to be appropriated to the Administrator of the Environmental Protection Agency $2,000,000 in fiscal year 1979 for the report required under section 806.

SEC. 746 SOCIOECONOMIC IMPACTS OF INCREASED COAL PRODUCTION AND OTH ER ENERGY

DEVELOPMENT.PL 95

– 620, 1978 HR 5146

PL 95

– 620, NOVEMBER 9, 1978, 92 Stat 3289 Page 41

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. (a) Committee.

— There is hereby established an interagency committee composed of the heads of the Departments of Energy, Commerce, Interior, Transportation, Housing and Urban Development, and Health, Education, and Welfare,
the Envir onmental Protection Agency, the Appalachian Regional Commission, the Farmers' Home Administration, the Office of Management and Buget, and such other Federal agencies as the Secretary shall designate. In carrying out
its functions the committee shall consu lt with the National Governors' Conference and interested persons, organiz ations, and entities. The chairman of the committee shall be designated by the President. The committee shall terminate 90 days after the submission of its report under subsection (c ). (b) Functions of Committee.

— It is the function of the committee to conduct a study of the socioeconomic impacts of expanded coal production and rapid energy development in general, on States, including local communities, and on the public, including the adequacy of housing and public, recreational, and cultural facilities for coal miners and their families and the effect of any Federal or State laws or regulations on providing such housing and facilities. The committee shall gather data and information o n

— , (1) the level of assistance provided under this Act and any other programs related to impact assistance, (2) the timeliness of assistance in meeting impacts caused by Federal decisions on energy policy as well as private sector decisions, and (3) the o bstacle 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 the results of such study to the Con gress, together with any recommendations for additional legislation it may consider appropriate.

SEC. 747. USE OF PETROLEUM AND NATURAL GAS IN COMBUSTORS.

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. In conducting such study, the Secretary
shall

— , (1) identify those categories of major fuel

- burning installations in which the substitution of coal or other alterna te fuels for petroleum and natural gas is economically and technically feasible, and (2) determine the estimated savings of natural gas and petroleum expected from such substitution.

Within 1 year after the effective date of this Act, the Secretary shall submit a detailed report on the results of such study to the Congress, together with any recommendations for legislation he may consider appropriate.
Subtitle F

— Appropriations Authorization

SEC. 751 AUTHORIZATION OF APPROPRIATIONS.

There is authorized to be appropriated to the Secretary for fiscal year 1979 $11,900,000, to carry out the provision of this Act (other than provisions for which an appropriations authorization is otherwise expressly provided in this Act)
and section 2 of the Energy Supply and Environmental Coordination Act of 1974.
Subtitle G

— Coordination with other Provisions of Law

SEC. 761 EFFECT ON ENVIRONMENTAL REQUIREMENTS.

(a) Compliance With Applicable Environmental Requirements.

— Except as provided in section 404 , nothing in the Act shall be construed as permitting any existing or new electric powerplant or major fuel

- burning installation to delay or avoid compliance with applicable environmental requirements. (b) Local Environmental Requirements.

— In the case of a ny new or existing facility

— , (1) which is subject to any prohibition under this Act, and (2) which is also subject to any requirement of any localPL 95

– 620, 1978 HR 5146

PL 95

– 620, NOVEMBER 9, 1978, 92 Stat 3289 Page 42

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. environmental requirement which may be stricter than any Federal or State environmental requirement,

the e xistence of such local requirement shall not be construed to affect the validity or applicability of such prohibition to such facility, except to the extent provided under section 212(b) or section 312(b); and the existence of such pr ohibition shall not be construed to preempt such local requirement with respect to that facility.

SEC. 762. EFFECT OF ORDERS UNDER SECTION 2 OF ESECA; AMENDMENTS TO ESECA.

(a) Effect of Construction Orders.

— Any electric powerplant or major fuel

– burning installation issued an order pu rsuant to section 2(c) of the Energy Supply and Environmental Coordination Act of 1974 that is pending on the e ffective date of this Act shall, notwithstanding the provisions of such section 2(c) or any other provisio n of this Act, be subject to the provisions of this Act as if it were a new electric powerplant or new major fuel

- burning installation, as the case may be, except that if such order became final before such date, the provisions of title II of this Act shal l not apply to such powerplant or installation. (b) Effect of Prohibition Orders.

— The provisions of titles II and III shall not apply to any powerplant or installation for which an order issued pursuant to section 2(a) of the Energy Supply and Environmenta l Coordination Act of 1974 before the effective date of this Act is pending or final or which, on review, was held unlawful and set aside on the merits; except that any installation issued such an order under such section 2(a) which is pending on the effec tive date of this Act may elect to be covered by title II or III (as the case may be) rather than such section 2. Such an election shall be irrevocable and shall be made in such form and manner as the Secretary shall, within 90 days after the date of
the e nactment of this Act, prescribe. Such an election shall be made not later than 60 days after the date on which the Secretary prescribes the form and manner of making such election. (c) Validity of Orders.

— The preceding provisions of this Act shall not affe ct the validity of any order issued under subsection (a), or any final order under subsection (c), of section 2 of the Energy Supply and Environmental Coo rdination Act of 1974, and the authority of the Secretary to amend, repeal, rescind, modify, or enforc e any such order, or rules applicable thereto, shall remain in effect notwithstanding any limitation of time otherwise applicable to such authority. Except as provided in this section, the authority of the Secretary under section 2 of such Act terminate on the
effective date of this Act. (d) Amendments to ESECA.

— (1) Section 11(g) of the Energy 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.

The following actions are not deemed to be major Federal actions for purposes of section 102(2)(C) of the National Environmental 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

- burning installation, other than an exemption

— , (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 t o 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 suc h 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 sec tion, any determination of what constitutes or does notPL 95

– 620, 1978 HR 5146

PL 95

– 620, NOVEMBER 9, 1978, 92 Stat 3289 Page 43

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. constitute a major Federal action shall be made under section 102 of the National Environmental Policy Act of 1969.

TITLE VIII

— MISCELLANEOUS PROVISIONS

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 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. (b) Exemption for Small Reserves.

— The Secretary may exempt s mall 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.

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 followin g 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 facilitate and encourage the use of and conversion to coal as an energy resource in regions and States which can use coal in greater quantity as a substitute for imported petr oleum. (b) Authorization.

— There is authorized t o be appropriated, for deposit in the Railroad Rehabilitation and Improv ement Fund established under section 502 of the Railroad Revitalization and Regulatory Reform Act of 1976 (45 U.S.C. 822), not more than $100,000,000. The money appropriated to the Rai lroad and Improvement Fund pursuant to this subsection shall be expended by the Secretary of Transportation, in the same manner as other money in such Fund, to provide financial assistance to railroads for maintenance, rehabilitation, improvement, and acqu isition of equipment and facilities 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) Conformin g Amendments.

— (1) Section 501(2) of the Railroad Revitalization and Regulatory Reform Act of 1976 (45 U.S.C. 821(2) is amended by insertint “ (except as provided in section 803 (a) and (b) of the Powerplant and I ndustrial 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) 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 quantitie s 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 following 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) therof; (B) by striking out “ Treasury, ” at the end of paragraph (5) and inserting in lieu therof “ Treasury, and ” ; and (C) by adding at the end thereof the following new paragraph:

“ (6) to c arry out the purposes of section 803 (a) and (b) of the Powerplant and Industrial Fuel Use Act of 1978 ”

.PL 95

– 620, 1978 HR 5146

PL 95

– 620, NOVEMBER 9, 1978, 92 Stat 3289 Page 44

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. (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: “ w ith respect to funds appropriated for financial assistance under this section which were authorized pursuant to section 803 (a) and (b) of the Powerplant and Industrial Fuel Use Act of 1978, applications for such funds for the purpose of coal transportatio n 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 therof “ $150,000,000 ”

.

SEC. 804. OFFICE OF RAIL PUBLIC COUNSEL.

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 general public and affected communities and, where appropriate, providers of rail services in proceedings of Federal agencies concerning

— ,

“ (1) the impact of energy proposals and actions on rail transportation,

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 operation relates to the marketing of petroleum products, the Secretary or any person acting on his behalf may no t exercise discretion to maintain 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 applicati on of such rule or regulation or based upon a retr oactive interpretation 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.

The Secretary shall submit to the Congress on March 1 of each year a detailed report prepared by him in conjunction with the Administrator of the Environmental Protection Agency of the actions taken under this Act and under section 2 of the Energy Supply a nd Environmental 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.

Copies of any report required by this Act to be submitted to the Congress shall be separately submitted to the Co mmittee on Interstate and Foreign Commerce of the House of Representatives and the Committee on Energy and NaturalPL 95

– 620, 1978 HR 5146

PL 95

– 620, NOVEMBER 9, 1978, 92 Stat 3289 Page 45

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Resources of the Senate.

TITLE IX

— EFFECTIVE DATES

SEC. 901. EFFECTIVE DATES.

Unless otherwise provided in this Act, the provisions of this Act shall take effect 180 days after the date of the e nactment of this Act, 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 of

— , (1) any electric powerplant which, as of April 20, 1977, has received a final decision from the appropriate State agency authorizing the construction of such powerplant, and (2) any electric powerplant (A) consisting of one or more combined cycle uni ts 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 II or III, notwit hstanding section 901 or the fact that all rules related to such petition have not been prescribed at the time. (b) Exemptions Under Section 211(d).

— The Secretary may 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 been prescribed at t he 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 Comm. 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: Nov. 9, Presidential statement.
PL 95

– 620, 1978 HR 5146