[Code of Federal Regulations]
[Title 40, Volume 15]
[Revised as of July 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR66.31]

[Page 142-143]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
 
PART 66_ASSESSMENT AND COLLECTION OF NONCOMPLIANCE PENALTIES BY EPA
--Table of Contents
 
         Subpart D_Exemption Requests; Revocation of Exemptions
 
Sec. 66.31  Exemptions based on an order, extension or suspension.


    (a) A source owner or operator who would otherwise be subject to a 
noncompliance penalty will be exempted from that penalty during the 
period for which, and upon a demonstration that, its noncompliance with 
applicable legal requirements is or was due solely to;
    (1) A conversion by such source from the burning of petroleum 
products or natural gas, or both, as the permanent primary energy source 
to the burning of coal pursuant to an order under section 113(d)(5) or 
section 119 of the Act as in effect before August 7, 1977.
    (2) In the case of a coal-burning source, the issuance of a 
prohibition to that source against burning petroleum products or natural 
gas, or both, by means of an order under sections 2(a) and (b) of the 
Energy Supply and Environmental Coordination Act of 1974, the Powerplant 
and Industrial Fuel Use Act, or under any legislation which amends or 
supersedes these provisions, Provided, That the source had received an 
extension under the second sentence of section 119(c)(1) of the Act as 
in effect before August 7, 1977.
    (3) The use of innovative technology by the source owner or operator 
pursuant to an enforcement order under section 113(d)(4) of the Act.
    (4) An inability to comply with an applicable legal requirement 
resulting from reasons entirely beyond the control of the owner or 
operator of such source or of any affiliated entity, Provided, That
    (i) The source owner or operator has received an order under section 
113(d) (or an order under section 113 issued before August 7, 1977) or a 
federal or EPA-approved State judicial decree or order which has the 
effect of permitting a delay in complying with the legal requirement at 
issue, and
    (ii) That the source owner or operator meets the requirements of 
paragraphs (c) and (d) of this section.
    (5) The existence of an energy or employment emergency demonstrated 
by issuance of an order under section 110(f) or 110(g) of the Act, 
unless such order is disapproved by EPA.
    (b) To qualify for an exemption under this section, the source owner 
or operator must have received the order, extension or suspension or 
consent decree described in the paragraph of the section pursuant to 
which the exemption is claimed. No exemption may be sought which, if 
granted, would exceed the terms of the relevant extension, order, 
suspension, or consent decree, except as provided in paragraph (e) of 
this section. No exemption may be sought which is based on a claim that 
the source owner or operator is entitled to any such order, extension, 
suspension, or consent decree even though it has not been issued.
    (c) In any exemption claim based on paragraph (a)(4) of this 
section, the source owner or operator must demonstrate:
    (1) That the source owner or operator or an affiliated entity in no 
manner

[[Page 143]]

sought, caused, encouraged or contributed to the inability; and
    (2) That the source owner or operator in no way unduly delayed 
negotiation for needed equipment or fuel supply or made unusual demands 
not typical in its industry, or placed unusual restrictions on the 
supplier, or delayed in any other manner the delivery of goods or the 
completion of the necessary construction.
    (d)(1) No exemption will be granted pursuant to paragraph (a)(4) of 
this section unless the owner or operator of the source demonstrates 
that, with respect to a situation described in paragraph (c), all 
reasonable steps were taken to prevent the situation causing the 
inability to comply, that procuring the needed pollution control 
equipment or fuel supply was given and continues to be given the highest 
possible priority in the planning and budgeting process of the owner or 
operator of the source, and that alternative sources of equipment and 
fuel have been explored without success.
    (2) Any exemption granted under paragraph (a)(4) of this section 
shall cease to be effective when the inability to comply ceases to be 
entirely beyond the control of the source owner or operator as defined 
in this section.
    (e) Except in the case of exemptions based on orders under section 
113 (d)(4) or (d)(5) or suspensions under section 110(g), the 
Administrator may grant an exemption with retroactive effect to the date 
of the event giving rise to the section 120 predicate order, extension, 
suspension, or consent decree. In such cases, the exemption from the 
noncompliance penalty shall run from the date that the basis for the 
exemption first occurred.

[45 FR 50110, July 20, 1980, as amended at 50 FR 36734, Sept. 9, 1985]