(a) This subpart establishes the procedures for determining the nature and extent of violations of the ESECA coal conversion regulations and the procedures for issuance of a notice of probable violation, a remedial order, or a remedial order for immediate compliance.

(b) When any report required by DOE or any audit or investigation discloses, or DOE otherwise discovers, that there is reason to believe a violation of any provision of the ESECA coal conversion regulations, or any order issued thereunder, has occurred, is continuing or is about to occur, DOE may conduct proceedings to determine the nature and extent of the violation and may issue a remedial order thereafter. DOE may commence such proceeding by serving a notice of probable violation or by issuing a remedial order for immediate compliance.

§ 303.191 Notice of probable violation.

(a) DOE may begin a proceeding under this subpart by issuing a notice of probable violation if DOE has reason to believe that a violation has occurred, is continuing, or is about to

occur.

(b) Within 10 days of the service of a notice of probable violation, the person upon whom the notice is served may file a reply with the DOE office that issued the notice of probable violation at the address provided in § 303.12. DOE may extend the 10-day period for good cause shown.

(c) The reply shall be in writing and signed by the person filing it. The reply shall contain a full and complete

statement of all relevant facts pertaining to the act or transaction that is the subject of the notice of probable violation. Such facts shall include a complete statement of the business or other reasons that justify the act or transaction, if appropriate; a detailed description of the act or transaction; and a full discussion of the pertinent provisions and relevant facts reflected in any documents submitted with the reply. Copies of all relevant contracts, agreements, leases, instruments, and other documents shall be submitted with the reply. When the notice of probable violation pertains to only one step of a larger integrated transaction, the facts, circumstances, and other relevant information regarding the entire transaction shall be submitted.

(d) The reply shall include a discussion of all relevant authorities, including, but not limited to DOE and EPA rulings, regulations, interpretations, and decisions on appeals and applications for exception relied upon to support the particular position taken.

(e) The reply should indicate whether the person requests or intends to request a conference regarding the notice. Any request not made at the time of the reply shall be made as soon thereafter as possible to insure that the conference is held when it will be most beneficial. A request for a conference must conform to the requirement of Subpart N of this part, which determination is within DOE's discretion.

(f) If a person has not filed a reply with DOE within the 10-day period provided, and DOE has not extended the 10-day period, the person shall be deemed to have conceded the accuracy of the factual allegations and legal conclusions stated in the notice of probable violation.

(g) If DOE finds, after the 10-day period provided in § 303.191(b), that no violation has occurred, is continuing, or is about to occur, or that for any reason the issuance of a remedial order would not be appropriate, it shall notify, in writing, the person to whom a notice of probable violation has been issued that the notice is rescinded.

(a) If DOE finds, after the 10-day period provided in § 303.191(b), that a violation has occurred, is continuing, or is about to occur, DOE may issue a remedial order. The order shall include a written statement setting forth the relevant facts and the legal basis of the remedial order.

(b) A remedial order issued under this section shall be effective upon issuance, in accordance with its terms, until stayed, suspended, modified, or rescinded. A remedial order shall remain in effect notwithstanding the filing of an application to modify or rescind it under Subpart K of this part.

(c) A remedial order may be referred at any time to the Department of Justice for appropriate action in accordance with Subpart Q of this part.

§ 303.193 Remedial order for immediate

compliance.

(a) Notwithstanding the provisions of §§ 303.191 and 303.192, DOE may issue a remedial order for immediate compliance, which shall be effective upon issuance and until rescinded or suspended, if it finds that:

(1) There is a strong probability that a violation has occurred, is continuing or is about to occur;

(2) Irreparable harm will Occur unless the violation is remedied immediately; and

(3) The public interest requires the avoidance of such irreparable harm through immediate compliance and waiver of the procedures afforded under §§ 303.191 and 303.192.

(b) A remedial order for immediate compliance shall be served promptly by telex or telegram upon the person against whom such order is issued, with a copy of the remedial order for immediate compliance served by registered or certified mail. The order shall contain a written statement of the relevant facts and the legal basis for the remedial order for immediate compliance, including the findings required by paragraph (a) of this section.

(c) DOE may rescind or suspend a remedial order for immediate compliance if it appears that the criteria set forth in paragraph (a) of this section are no longer satisfied. When appro

priate, however, such a suspension or rescission may be accompanied by a notice of probable violation issued under § 303.191.

(d) If at any time in the course of a proceeding commenced by a notice of probable violation the criteria set forth in paragraph (a) of this section are satisfied, DOE may issue a remedial order for immediate compliance, even if the 10-day period for reply specified in § 303.191(b) has not expired.

(e) At any time after a remedial order for immediate compliance has become effective, DOE may refer such order to the Department of Justice for appropriate action in accordance with Subpart Q of this part.

(a) No notice of probable violation issued pursuant to this subpart shall be deemed to be an action of which there may be an administrative appeal pursuant to Subpart H of this part.

(b) Any person to whom a remedial order or a remedial order for immediate compliance is issued under this subpart may file an appeal with the DOE Office of Hearings and Appeals in accordance with Subpart H of this part. The appeal must be filed within 10 days of service of the order from which the appeal is taken.

tary cooperation with its investigations. When the circumstances warrant, however, DOE may issue subpoenas in accordance with and subject to § 303.8. DOE may conduct investigative conferences and hearings in the course of any investigation in accordance with Subpart N of this part, which determination is within DOE's discretion.

(b) Investigators. Investigations will be conducted by representatives of DOE who are duly designated and authorized for such purposes. Such representatives have the authority to administer oaths and receive affirmations in any matter under investigation by DOE.

(c) Notification. Any person who is under investigation by DOE in accordance with this section and who is requested to furnish information or documentary evidence shall be notified as to the general purpose for which such information or evidence is sought.

(d) Termination. When the facts disclosed by an investigation indicate that further action is unnecessary or unwarranted at that time, the investigative file will be closed without prejudice to further investigation by DOE at any time that circumstances so warrant.

(e) Confidentiality. Information received in an investigation under this section, including the identity of the person investigated and any other person who provides information during the investigation, shall, unless otherwise determined by DOE, remain confidential to the extent it is covered under the investigatory file exception to public disclosure contained in 5 U.S.C. 552.

pursuant thereto shall be subject to penalties and sanctions as provided herein.

(1) The provisions herein for penalties and sanctions shall be deemed cumulative and not mutually exclusive.

(2) Each day that a violation of the provisions of the ESECA coal conversion regulations or any order issued pursuant thereto continues shall be deemed to constitute a separate violation within the meaning of the provisions of this part relating to criminal fines and civil penalties.

(b) Criminal fines. (1) Any person who willfully violates any provision of the ESECA coal conversion regulations or any order issued pursuant thereto shall be subject to a fine of not more than $5,000 for each violation.

(2) Criminal violations are prosecuted by the Department of Justice upon referral by DOE.

(c) Civil penalties. (1) Any person who violates any provision of the ESECA coal conversion regulations, or any order issued pursuant thereto shall be subject to a civil penalty of not more than $2,500 for each violation. Actions for civil penalties are prosecuted by the Department of Justice upon referral by DOE.

(2) When DOE considers it to be appropriate or advisable, DOE may compromise and settle, and collect civil penalties.

(d) Other Penalties. Willful concealment of material facts, or false or fictitious or fraudulent statements or representations, or willful use of any false writing or document containing false, fictitious or fraudulent statements pertaining to matters within the scope of ESECA, DEOA, or FEAA by any person shall subject such person to the criminal penalties provided in 18 U.S.C. 1001 (1970).

§ 303.203 Injunctions.

Whenever it appears to DOE that any person has engaged, is engaged, or is about to engage in any act or practice constituting a violation of any regulation or order issued under the ESECA coal conversion regulations DOE may request the Attorney General to bring a civil action in the ap

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. 95-626; 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

SOURCE: 45 FR 67604, Oct. 10, 1980, unless otherwise noted.

tions 2 (a) and (b) of ESECA (15 U.S.C. 792).

"Air pollution requirement" means any emission limitation, schedule or timetable for compliance, or other requirement, which is prescribed under any Federal, State, or local law or regulation, including the Clean Air Act (except for any requirement prescribed under section 113(d), section 110(a)(2)(F)(v), or section 303 of such Act (42 U.S.C. 7413, 7410(a)(2)(F)(v) and 7603, respectively), and which limits 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).

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

"Coal" includes coal derivatives. "Delayed compliance order" means an extension issued by the Administrator of EPA in accordance with section 113(d) 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 requirement, from burning coal which is available to that source, except as otherwise provided in section 113(d) of that Act (42 U.S.C. 7413(d)).

"DEOA" means the Department of Energy Organization Act, Pub. L. 95– 91, 42 U.S.C. 7101 et seq. (1977).

"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 groups 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.

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

"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.

"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 combuster 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 either a written statement issued by DOE to an existing powerplant or major fuel burning installation, subsequent to a certification by EPA pursuant to section 112(b) of the Clean Air Act Amendments of 1977 (Pub. L. 95-95), advising such powerplant or installation of the date that a prohibition order applicable to it and the prohibitions contained therein become effective; or a written statement issued by DOE to a new powerplant or major fuel burning installation advising such powerplant or installation of the date that a construction order applicable to it became effective.

"Person" means any association, firm, company, corporation, estate, individual, joint-venture, partnership, or sole proprietorship or any other entity however organized including charitable, educational, or other eleemosynary 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 authorized representative thereof. DOE may, in regulations and in any forms issued 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 entities,

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

"Petroleum product" means crude oil, residual fuel oil or any refined petroleum product, as that last term is defined in section 3(5) of the Emergency Petroleum Allocation Act of 1973.

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

"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 periods as use of such 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 the DOE, either on its initiative or in response to an application submitted by a powerplant or major fuel burning installation, that may lead to an action by DOE.

"Process fuel use" means that fuel use for which alternate fuels are not technically feasible such as in applications requiring precise temperature