AUTHORITY: Energy Supply and Environmental Coordination Act of 1974 (Pub. L. 93-319) (15 U.S.C. 791 et seq.), as amended by Pub. L. 94-163; Pub. L. 95-70; Pub. L. 9591; and Pub. L. 95-620; Federal Energy Administration Act of 1974 (Pub. L. 93-275) (15 U.S.C. 761 et seq.), as amended by Pub. L. 94-385; and Pub. L. 95-91; Powerplant and Industrial Fuel Use Act of 1978 (Pub. L. 95620) (42 U.S.C.A. 8301 et seq.) E.O. 11790 (39 FR 23185) E.O. 12009, 42 FR 46267.

SOURCE: 45 FR 67584, Oct. 10, 1980, unless otherwise noted.

Subpart A-General Provisions

§ 303.1 Purpose and scope.

(a) Part 303 establishes the procedures to be utilized and identifies the sanctions that are available in proceedings before the Department of Energy pursuant to the Energy

As used in the part, the term: Action means an order, or modifica tion or rescission thereof, interpreta tion, notice of probable violation, ruling issued, or a rulemaking under taken by DOE, unless otherwise de fined in this part.

Aggrieved, for purposes of adminis trative proceedings means a person with an interest sought to be protect ed under the FEAA or ESECA who is adversely affected by an order or in terpretation issued by DOE.

Air pollution requirement means any emission limitation, schedule or time table for compliance, or other require ment, which is prescribed under any Federal, State, or local law or regula tion, including the Clean Air Act, & amended, (except for any requiremen prescribed under section 113(d), se tion 110(a)(2)(F)(v), or section 303 of such Act (42 U.S.C. 7413 7410(a)(2)(F)(v) and 7603, respecti ly)), and which limits station source emissions resulting from co bustion of fuels (including a prohib tion on, or specification of, the use of any fuel of any type, grade, or pollu tion characteristic).

Clean Air Act means the Clean Air Act, as amended, 42 U.S.C. 7401 et seq (1970).

Coal includes coal derivatives.

Combined cycle unit means an elec tric power generating unit that com sists of a combination of one or more combustion gas turbine units and one or more steam turbine units with the required energy input of the stear turbine(s) provided by and approx mately matched to the energy in the exhaust gas from the combustion tur bine unit(s). Use of small amounts of supplemental firing for the steam tur bine does not preclude the unit from being a combined cycle unit.

Combination gas turbine means electric power generating unit that is

combination of a rotary engine driven by a gas under pressure that is created by the combustion of a fuel, usually natural gas or a petroleum product, with an electric power generator driven by such engine.

Conference means an informal meeting, incident to any proceeding between DOE and any person aggrieved by that proceeding.

Construction order means a directive issued by DOE pursuant to section 2(c) of ESECA (15 U.S.C. 792(c)) that requires a powerplant or major fuel burning installation in the early planning process (other than a combustion gas turbine or combined cycle unit) to be designed and constructed to be capable of using coal as its primary energy source.

Delayed compliance order means an extension issued by the Administrator of EPA in accordance with section 113(d)(5) of the Clean Air Act (42 U.S.C. 7413(d)) as a result of which a powerplant or major fuel burning installation shall not, until January 1, 1986, be prohibited, by reason of the application of any air pollution requirements, from burning coal which is available to such source, except as otherwise provided in section 113(d) of that Act (42 U.S.C. 7413(d)).

Dispatching system means (1) an integral group of powerplants within a geographical power pool for which there is centralized control of power generation, scheduling, and transmission; or (2) where there is no such integral power system, that powerplant or group of powerplants determined by DOE, in consultation with the Federal Energy Regulatory Commission, to constitute a power generation system sufficient in scope that DOE may make a reliability finding within the meaning of ESECA.

DEOA means the Department of Energy Organization Act, Pub. L. 9591, 42 U.S.C. 7101 et seq. (1977).

of

DOE means the Department Energy, including the Secretary of Energy or his designee.

Duly authorized representative means a person who has been designated to appear before DOE in connection with a proceeding on behalf of a person interested in or aggrieved by that proceeding. Such appearance may

consist of the submission of applications, petitions, requests, statements, memoranda of law, other documents, or of a personal appearance, verbal communication, or any other participation in the proceeding.

Early planning process (i) in the case of powerplants, commences 10 years prior to the planned commencement of the sale or exchange of electric power by a powerplant and terminates with commencement of the driving of the foundation piling, or the equivalent foundation structural event, in accordance with final drawings for the main boiler of the powerplant which were approved prior to commencement of such structural event; and (ii) in the case of major fuel burning installations, commences with completion of the preliminary feasibility study and terminates when the major fuel burning installation can no longer be ordered to be designed and constructed so as to be capable of burning coal as its primary energy source without suffering significant financial or operational detriment due to the impairment of prior commitments. Typically, such a termination point will coincide with the completion of the major fuel burning installation's foundation, or the equivalent foundation structural event, in accordance with final drawings for the major fuel burning installation which were approved prior to the commencement of such structural event.

EPA means the Environmental Protection Agency.

ERA means the Economic Regulatory Administration of the Department of Energy.

ESECA means the Energy Supply and Environmental Coordination Act of 1974 (Pub. L. 93-319) (15 U.S.C. 791 et seq.), as amended by Pub. L. 94-163; Pub. L. 95-70; Pub. L. 95-91; and Pub. L. 95-620.

Exception means the waiver or modification of the requirements of a regulation, ruling or generally applicable requirement under a specific set of facts.

Exemption means the release from the obligation to comply with an entire part, or subpart thereof, of Parts 303 or 305, of this chapter.

FEAA means the Federal Energy Administration Act of 1974 (Pub. L. 93275) (15 U.S.C. 761 et seq.), as amended by Pub. L. 94-332; Pub. L. 94-385; Pub. L. 95-70; and Pub. L. 95-91.

Federal legal holiday means New Year's Day, Washington's Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans' Day, Thanksgiving Day, Christmas Day, and any other day appointed as a national holiday by the President or the Congress of the United States.

FUA means the Powerplant and Industrial Fuel Use Act of 1978 (Pub. L. 95-620) (42 U.S.C.A. 8301 et seq.), which became effective on May 9, 1979.

Interpretation means a written statement issued by the General Counsel or his delegate, in response to a written request, that applies the regulations, rulings, and other precedents previously issued, to the particular facts of a prospective or completed act or transaction.

Interested person includes members of the public, as well as any person with an interest sought to be protected under ESECA.

Major fuel burning installation means an installation or unit other than a powerplant that has or is a fossil-fuel fired boiler, burner, or other combustor of fuel, or any combination thereof at a single site, and includes any person who owns, leases, operates or controls any such installation or unit.

Natural gas includes dry gas and casinghead gas.

Notice of effectiveness or NOE means (a) a written statement issued by DOE to an existing powerplant or major fuel burning installation, subsequent to certification by EPA pursuant to section 112(b) of the Clean Air Act Amendments of 1977 (Pub. L. 9595), advising the powerplant or installation of the date that the prohibition order applicable to it becomes effective; or (b) a written statement issued by DOE to a new powerplant or major fuel burning installation advising the powerplant or installation of the date that the construction order applicable to it becomes effective.

Notice of probable violation means a written statement issued to a person

by DOE that states one or more alleged violations of the provisions of Parts 303 or 305 of this chapter or any order issued pursuant to section 2 of ESECA.

Order means a written directive or verbal communication of a written directive, if promptly confirmed in writing, issued by DOE pursuant to Part 303 or 305 of this chapter or section? of ESECA. An order may be issued in response to an application, petition or request for DOE action or in response to an appeal from another order, or it may be a remedial order or other di rective issued by DOE on its initiative. A notice of probable violation is not an order. For purposes of this definition & "written directive" shall include telegrams, telecopies and similar transmis sions.

Person means any association, firm. company, corporation, estate, individ ual, joint-venture, partnership, or sole proprietorship or any other entity however organized including charitable, educational, or other eleemosy nary institutions, and the Federal Government, including corporations departments, Federal agencies, and other instrumentalities, and State and local governments, and includes any officer, director, owner or duly auther ized representative thereof. DOE m in regulations and in any forms iss in this part, treat as a person:

(a) A parent and the consolidated and unconsolidated entities (if any which it directly or indirectly controls, (b) A parent and its consolidated en tities,

(c) An unconsolidated entity, or (d) Any part of a person.

Petroleum product means crude oil residual fuel oil or any refined petrole um product, as that last term is de fined in section 3(5) of the Emergency Petroleum Allocation Act of 1973 & amended (Pub. L. 93-159).

Powerplant means a fossil-fuel fired steam electric generating unit th produces electric power for purposes of sale or exchange, and includes and person who owns, leases, operates of controls any such unit.

Preliminary feasibility study mean that analysis, formal or otherwise which concluded that new, additions or replacement capacity appears to

required and which precedes the managerial decision to initiate the design of a major fuel burning installation.

Primary energy source means with respect to a powerplant or major fuel burning installation that utilizes a fossil-fuel, the fuel that is or will be used for all purposes except for the minimum amounts required for startup, testing, flame stabilization and control, and process fuel use, and except, with regard to powerplants or major fuel burning installations issued prohibition orders that also are issued delayed compliance order by EPA in accordance with section 113 of the Clean Air Act (42 U.S.C. 7413), for such minimum amounts of fuel required to enable such powerplant or major fuel burning installation to comply with applicable primary standard conditions prescribed by EPA in accordance with 40 CFR 55.04: Provided, Such minimum amounts of fuel may be used only when such primary standard conditions include the utilization of intermittent control systems and only during such temporary periɔds as use of the minimum amounts is absolutely necessary to meet the terms of the primary standard conditions relating to use of intermittent control systems.

Proceeding means the process and activity, and any part thereof, instituted by DOE, either on its initiative or n response to an application, complaint, petition or request submitted by a person, that may lead to an action by DOE.

Process fuel use means that fuel use or which alternate fuels are not techically feasible such as in applications equiring precise temperature control nd precise flame characteristics.

Prohibition order means a directive ssued by DOE pursuant to sections (a) and (b) of ESECA (15 U.S.C. 92(a) and (b)) that prohibits a powerlant or major fuel burning installaion from burning natural gas or peroleum products as its primary nergy source.

Remedial order means a directive ssued by DOE requiring a person to ease a violation or to eliminate or to ompensate for the effects of a violaion, or both.

Ruling means an official interpretative statement of general applicability issued by DOE General Counsel and published in the FEDERAL REGISTER, that applies DOE regulations to a specific set of circumstances.

Stationary source fuel or emission limitations means any emission limitation, schedule or timetable of compliance, or other requirement, which is prescribed under the Clean Air Act (other than sections 113, 111(b), 112, or 303 (42 U.S.C. 7413, 7411, 7412, and 7603 respectively)) or contained in an applicable implementation plan (other than a requirement imposed under authority described section

in

110(a)(2)(F)(v) of such Act (42 U.S.C. 7410(a)(2)(F)(v)), and which limits, or is designed to limit, stationary source emissions resulting from combustion of fuels, including a prohibition on, or specification of, the use of any fuel of any type, grade, or pollution characteristic.

United States, when used in the geographic sense, means the several States, the District of Columbia, Puerto Rico, and the territories and possessions of the United States.

Throughout this part the use of a word or term in the singular shall include the plural and the use of the male gender shall include the female gender.

§ 303.3 Appearance before DOE.

(a) A person may make an appearance and participate in any proceeding described in this part on his own behalf or by a duly authorized representative. Personal appearances are at the discretion of DOE, except as required by ESECA, DEOA, or the FEAA. Any application, appeal, petition, request or complaint filed by a duly authorized representative shall contain a statement by such person certifying that he is a duly authorized representative, unless a DOE form requires otherwise. Falsification of this certification will subject the person to the sanctions stated in 18 U.S.C. 1001 (1970).

(b) DOE may deny, temporarily or permanently, the privilege of participating in proceedings, including oral

presentation, to any individual who is found by DOE

(1) To have made false or misleading statements, either verbally or in writing;

(2) To have filed false or materially altered documents, affidavits or other writings;

(3) To lack the specific authority to represent the person seeking a DOE action; or

(4) To have engaged in or to be engaged in contumacious conduct that substantially disrupts a proceeding.

§ 303.4 Filing of documents.

(a) Any document, including, but not limited to, an application, request, complaint, petition and other documents submitted in connection therewith, filed with DOE under Part 303 or Part 305 of this chapter is considered to be filed when it has been received by DOE National Office. Documents transmitted to DOE shall be addressed as required by § 303.12. All documents and exhibits submitted become part of a DOE file and will not be returned.

(b) Notwithstanding the provisions of paragraph (a) of this section, if transmitted by registered or certified mail and addressed to the appropriate office,the following are considered to be filed upon mailing:

(1) An appeal,

(2) a response to a denial of an appeal or application for modification or rescission of an order in accordance with § 303.107(a)(3) of this chapter and § 303.145(a)(3), respectively,

(3) an application for modification or rescission of a prohibition order as a result of significantly changed circumstances that occurred during the interval between issuance of the prohibition order and service of the NOE,

(4) an application for the quashing or modification of a subpoena,

(5) a reply to a notice of probable violation,

(6) the appeal of a remedial order or remedial order for immediate compliance,

(7) a response to denial of a claim of confidentiality, or

(8) a comment submitted in connection with any proceeding.

(c) Hand-delivered documents to be filed with the Office of Hearings and Appeals shall be submitted to Room 8002 at 2000 M Street, NW., Washing ton, DC. All other hand-delivered doc uments to be filed with the DOE Na tional Office shall be submitted at the address provided in § 303.12.

(d) Documents received after regular business hours are deemed to have been filed on the next regular business day. Regular business hours for the DOE National Office are 8 a.m. to 4:30 p.m.

§ 303.5 Computation of time.

(a) Days. (1) Except as provided i paragraph (b) of this section, in com puting any period of time prescribed or allowed by these regulations or by an order of DOE, the day of the act event, or default from which the desig nated period of time begins to run is not to be included. The last day of the period so computed is to be included unless it is a Saturday, Sunday, or Federal legal holiday, in which event the period runs until the end of the next day that is neither a Saturday Sunday, nor a Federal legal holiday.

(2) Saturdays, Sundays or interven ing Federal legal holidays shall be e cluded from the computation of tim when the period of time allowed prescribed is 7 days or less.

(b) Hours. If the period of time pre scribed in an order issued by DOE is stated in hours rather than days, the period of time shall begin to run upon actual notice of such order, whether by verbal or written communication to the person directly affected, and shall run without interruption, unless otherwise provided in the order, or unless the order is stayed, modified suspended or rescinded. When a wri ten order is transmitted by verba communication, the written order shall be served as soon thereafter ass feasible.

(c) Additional time after service by mail. Whenever a person is required t perform an act, to cease and desis therefrom, or to initiate a proceeding under this part within a prescribe period of time after issuance to such person of an order, notice, interpreta tion or other document and the order