Applicable environmental requirements includes:

(1) 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 (including air and water pollutants) or disposal of solid waste residues resulting from the use of coal or other alternate fuels, 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

(2) Any other standard, limitation, or other requirement established by, or pursuant to, the Clean Air Act, the Federal Water Pollution Control Act, the Solid Waste Disposal Act, the Resource Conservation and Recovery Act of 1976, or the National Environmental Policy Act of 1969.

Base load powerplant means a powerplant, the electrical generation of which in kilowatt hours exceeds, for any 12-calendar-month period, such powerplant's design capacity multiplied by 3,500 hours.

Boiler means a closed vessel in which water is heated electrically or by the combustion of a fuel to produce steam of one percent or more quality.

Btu means British thermal unit. Capability to use alternate fuel, for the purposes of Title II prohibitions relating to construction of new powerplants, means the powerplant to be constructed:

(1) Has sufficient inherent design characteristics to permit the addition of equipment (including all necessary pollution devices) necessary to render such electric powerplant capable of using coal or another alternate fuel as its primary energy source; and

(2) Is not physically, structurally, or technologically precluded from using coal or another alternate fuel as its primary energy source.

Capability to use coal or another alternate fuel shall not be interpreted to require any such powerplant to be immediately able to use coal or another alternate fuel as its primary energy

source on its initial day of operation. In addition, the owner or operator of a baseload powerplant need not have adequate on-site space for either a coal gasifier or any facilities for handling coal or related fuels.

Certification means a document, signed by an official of the owner or operator, notarized, and submitted to OFE, which declares that a new powerplant will have the "capability to use alternate fuel" (as defined herein).

Certifying powerplant means an existing powerplant whose owner or operator seeks to obtain a prohibition order against the use of natural gas or petroleum either totally or in a mixture with coal or an alternate fuel by filing a certification as to both the technical capability and financial feasibility of conversion to coal or another alternate fuel pursuant to section 301 of FUA, as amended.

Clean Air Act means the Clean Air Act, 42 U.S.C. 7401 et seq. (1970), as amended by Public Law 93-319, 88 Stat. 246, and Public Law 95-91, 91 Stat. 685.

Coal means anthracite, bituminous and sub-bituminous coal, lignite, and any fuel derivative thereof.

Cogeneration facility means an electric powerplant that produces: (1) Electric power; and

(2) Any other form of useful energy (such as steam, gas or heat) that is, or will be used, for industrial, commercial, or space heating purposes. In addition, for purposes of this definition, electricity generated by the cogeneration facility must constitute more than five (5) percent and less than ninety (90) percent of the useful energy output of the facility.

NOTE-Any cogeneration facility selling or exchanging less than fifty percent (50%) of the facility's generated electricity is considered an industrial cogenerator and is exempt from the fuel use prohibitions of FUA.

Combined cycle unit means an electric power generating unit that consists of a combination of one or more combustion turbine units and one or more steam turbine units with a substantial portion of the required energy input of the steam turbine unit(s) provided by the exhaust gas from the combustion turbine unit(s).

Substantial amounts of supplemental firing for a steam turbine or waste heat boiler to improve thermal efficiency will not affect a unit's classification as a combined cycle unit.

Combustion turbine means a unit that is a rotary engine driven by a gas under pressure that is created by the combustion of any fuel.

Commercial unmarketability as used in the definitions of "alternate fuel," "natural gas" and "petroleum" shall be determined as follows:

(1) A waste by-product of industrial or refinery operations is commercially unmarketable by reason of:

(i) Quality, where the cost of processing (limited to upgrading the waste byproduct to commercial quality), storing, and distributing the waste byproduct would not be covered by reasonably expected revenues from its sale;

(ii) Quantity, where the cost of aggregating the waste by-product into commercial quantities through storing and distributing the waste by-product would not be covered by reasonably expected revenues from its sale.

(2) A fuel will not be classified as "natural gas" when it is commercially unmarketable by reason of:

(i) Quality, where the cost of producing, upgrading to commercial quality, storing, and distributing the fuel would not be covered by reasonably expected revenues from its sale; or

(ii) Quantity, where the quantities of the fuel are so small that the revenues to be reasonably expected from its sale would not cover the cost of its production, distribution or storage.

(3) Costs associated with upgrading, storing, distributing, and aggregating a by-product or other fuel (to determine if such fuel is natural gas) may properly include a reasonable rate of return on any capital investment required to overcome the problems posed by the quality or quantity of a fuel because the return on investment is a normal aspect of any investment decision. A firm may account for this reasonable rate of return by using its customary discount rate for an investment of similar risk.

(4) As part of any consideration of the rate of return on investment, the cost of replacing the Btu's lost if the

by-product or other fuel were upgraded and sold instead of used as a fuel may be taken into consideration. The actual expense that would result from burning a replacement fuel in lieu of the byproduct or other fuel in question may therefore be considered. The costs associated with using a replacement fuel are indirect costs that result from upgrading and selling the fuel, instead of burning it. These indirect costs as well as the direct costs associated with the upgrading, storing, distributing, and aggregating of by-products or other fuel may be considered in any assessment of commercial unmarketability.

Conference means an informal meeting incident to any proceeding, between DOE and any interested person.

Construction means substantial physical activity at the unit site and includes more than clearance of a site or installation of foundation pilings.

Costs means total costs, both operating and capital, incurred over the estimated remaining useful life of an electric powerplant, discounted to the present, pursuant to rules established in parts 503 and 504 of these regulations.

DEOA means the Department of Energy Organization Act (Pub. L. 95-91) (42 U.S.C. 7101 et seq.) as implemented by Executive Order 12009 (42 FR 46267, September 15, 1977).

Design capability defined in section 103(a)(7) of FUA, shall be determined as follows:

(1) Boiler and associated generator turbines. The design fuel heat input rate of a steam-electric generating unit (Btu/ hr) shall be the product of the generator's nameplate rating, measured in kilowatts, and 3412 (Btu/kWh), divided by the overall boiler-turbine-generator unit design efficiency (decimal); or if the generator's nameplate does not have a rating measured in kilowatts, the product of the generator's kilovoltamperes nameplate rating, and the power factor nameplate rating; and 3412 (Btu/kWh), divided by the boiler turbine-generator unit's design efficiency (decimal). (The number 3412 converts kilowatt-hours (absolute) into Btu's (mean).)

(2) Combustion turbine and associated generator. The design fuel heat input rate of a combustion turbine (Btu/hr)

shall be the product of its nameplate rating, measured in kilowatts, and 3412 (Btu/kWh), divided by the combustion turbine-generator unit's design efficiency (decimal), adjusted for peaking service at an ambient temperature of 59 degrees Fahrenheit (15 degrees Celsius) at the unit's elevation. (The number 3412 converts kilowatt-hours (absolute) into Btu's (mean).)

(3) Combined cycle unit. The design fuel heat input rate of a combined cycle unit (Btu/hr) shall be the summation of the product of its generator's nameplate rating, measured in kilowatts, and 3412 (Btu/kWh), divided by the overall combustion turbine-generator unit's efficiency (decimal), adjusted for peaking service at an ambient temperature of 59 degrees Fahrenheit (15 degrees Celsius) and at the unit's evaluation, plus the product of the maximum fuel heat input to any supplemental heat recovery steam generator/ boiler in gallons or pounds per hour and the fuel's heat content. If the generator's nameplate does not have a rating measured in kilowatts, the product of the generator's kilowatt-amperes nameplate rating and power factor nameplate rating must be substituted for kilowatts. (The number 3412 converts kilowatt-hours (absolute) into Btu's (mean).)

Design capacity of a powerplant pursuant to section 103(a)(18) of FUA, is determined according to 18 CFR 287.101.

DOE or the Department means the United States Department of Energy, as defined in sections 201 and 301(a) of the DEOA, including the Secretary of Energy or his designee.

Duly authorized representative means a person who is authorized to appear before DOE in connection with a proceeding on behalf of a person interested in or aggrieved by that proceeding. Such appearance may include the submission of applications, petitions, requests, statements, memoranda of law, other documents, or of a personal appearance, oral communication, or any other participation in a proceeding.

Electing powerplant means an existing powerplant, which (1) has been issued a proposed prohibition order under former section 301 (b) or (c) of FUA prior to August 13, 1981, the date of enactment of the Omnibus Budget Rec

onciliation Act of 1981, Public Law 9735 (OBRA); and (2) files an election to continue the current prohibition order proceeding under provisions of the former section 301 of FUA, rather than under amended section 301 of FUA.1 Under the election provisions, an existing powerplant which has an order pending against it under section 2 of the Energy Supply and Environmental Coordination Act of 1974, as amended, 15 U.S.C. 791 et seq. (ESECA), as of August 13, 1981, may also elect to continue the current proceeding under section 2 of ESECA. Electing powerplants under ESECA are not included in the FUA definition of "electing powerplant". Relevant regulations governing ESECA proceedings are found at 10 CFR part 303 and 305. These elections must have been filed with DOE by November 30, 1981 in the case of FUA orders and by January 14, 1982 in the case of ESECA orders.

Electric generating unit does not include:

(1) Any electric generating unit subject to the licensing jurisdiction of the Nuclear Regulatory Commission

(NRC); and

(2) Any cogeneration facility from which less than 50 percent of the net annual electric power generation is sold or exchanged for resale. Excluded from 'sold or exchanged for resale' are sales or exchanges to or with an electric utility for resale by the utility to the cogenerating supplier, and sales or exchanges among owners of the cogeneration facility.

NOTE: For purposes of subparagraph (1) of this definition, OFE will not consider any unit located at a site subject to NRC's licensing authority to be jurisdictional for purposes of FUA.

Electric powerplant means any stationary electric generating unit consisting of (a) a boiler, (b) a gas turbine, or (c) a combined cycle unit which employs a generator to produce electric power for purposes of sale or exchange and has the design capabilityf consuming any fuel (or mixture thereof) at a fuel heat input rate of 100 million Btu's per hour or greater. In accordance with

The election provisions are published at 46 FR 48118 (October 1, 1981) and will not be codified in the Code of Federal Regulations.

section 103(a)(7)(C) of FUA, the Secretary has determined that it is appropriate to exclude from this definition 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.

Electric Region is as defined in §500.3 of this part.

Electric utility means any person, inIcluding any affiliate, or Federal agency, which sells electric power.

Emission offset means emission reductions as defined by EPA's regulations set forth at 40 CFR part 51, appendix S. EPA means the United States Environmental Protection Agency.

ESECA means the Energy Supply and Environmental Coordination Act of 1974, as amended, 15 U.S.C. 791 et seq.

Existing powerplant means any powerplant other than a new powerplant.

Federal Water Pollution Control Act means the Federal Water Pollution Control Act, 33 U.S.C. 1251 et seq., as amended.

FERC means the Federal Energy Regulatory Commission.

Firm means a parent company and the consolidated or unconsolidated entities (if any) that it directly or indirectly controls.

Fluidized bed combustion means combustion of fuel in connection with a bed of inert material, such as limestone or dolomite, that is held in a fluid-like state by the means of air or other gases being passed through such materials.

FTC means the Federal Trade Commission.

FUA means the Powerplant and Industrial Fuel Use Act of 1978, 42 U.S.C. 8301 et seq.

Fuel Use Act means FUA.

Fuel use order means a directive issued by OFE pursuant to §501.167 of these regulations.

Gas turbine means "combustion turbine".

High-priority user, for purposes of subsection 312(j) of FUA, means any residential user of natural gas, or any commercial user whose consumption of natural gas on peak day is less than 50 MCF.

Internal combustion engine means a heat engine in which the combustion that generates the heat takes place inside the engine proper.

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

Mcf means 1,000 cubic feet of natural gas.

Mixture, when used in relation to fuels used in a unit, means a mixture of petroleum or natural gas and an alternate fuel, or a combination of such fuels, used simultaneously or alternately in such unit.

Natural gas means any fuel consisting in whole or in part of natural gas, including components of natural gas such as methane and ethane; liquid petroleum gas; synthetic gas derived from petroleum or natural gas liquids; or any mixture of natural gas and synthetic gas. Natural gas does not include:

(1) Gaseous waste by-products or waste gas specifically designated as an alternate fuel in §500.2 of these regulations;

(2) Natural gas which is commercially unmarketable, as defined in these rules;

(3) Natural gas produced by the user from a well, the maximum efficient production rate of which is less than 250 million Btu's per day. For purposes of paragraph (3) of this definition:

(i) Produced by the user means:

(A) All gas produced by the well, when such gas is delivered for use in the user's facility through a gas delivery, gathering, or transportation system which could not deliver such gas to any other user; or

(B) Only that amount which represents the user's net working (mineral) interest in the gas produced from such well, where such gas is delivered for use in the user's facility through a gas delivery, gathering, or transportation system which could deliver such gas to any other user.

(ii) Maximum efficient production rate (MEPR) means that rate at which production of natural gas may be sustained without damage to the reservoir or the rate which may be sustained without damage to the ultimate recovery of oil or gas through the well.

(4) Occluded methane in coal seams within the meaning of section 107(c)(3) of the Natural Gas Policy Act of 1978 (NGPA);

(5) The following gas from wells spudded prior to January 1, 1990:

(i) Gas produced from geopressurized brine, within the meaning of section 107(c)(2) of the NGPA;

(ii) Gas produced from Devonian shale, within the meaning of section 107(c)(4) of the NGPA;

(iii) Gas produced from tight sands, as designated by the FERC in accordance with section 107(c)(5) of the NGPA; and

(iv) Other gases designated by FERC as "high-cost natural gas" in accordance with section 107(c)(5) of the NGPA, except as specifically designated as "natural gas" by OFE;

(6)(i) 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° F; and

(ii) Commingled natural gas and synthetic gas derived from coal consumed as part of the necessary process of a major fuel burning installation used in the iron and steel industry, so long as the average annual Btu heat content of the commingled stream as consumed within a major fuel burning installation does not exceed 600 Btu's per cubic foot at 14.73 pounds per square inch (absolute) and 60° F;

(7) Mixtures of natural gas and synthetic gas derived from alternate fuels for which the person proposing to use the gas certifies to OFE that:

(i) He owns, or is entitled to receive at the point of manufacture, synthetic gas derived from alternate fuels;

(ii) He delivers, or arranges for the delivery of such synthetic gas to a pipeline which by transport or displacement is capable of delivering such synthetic gas, mixed with natural gas, to facilities owned by the user;

(iii) The total annual Btu content of the synthetic gas delivered to a pipeline is equal to or greater than the total annual Btu content of the natural gas delivered to the facilities owned by the user, plus the approximate total annual Btu content of any natural gas consumed or lost in transportation; and

(iv) All necessary permits, licenses, or approvals from appropriate Federal, State, and local agencies (including Indian tribes) have been obtained for construction and operation of the facilities for the manufacture of the synthetic gas involved, except that for purposes of the prohibition under section 201(2) of FUA against powerplants being constructed without the capability of using coal or another alternate fuel, only permits, licenses, and approvals for the construction of such synthetic gas facilities shall be required under this subparagraph, to be certified and documented; and

(8) A mixture of natural gas and an alternate fuel when such mixture is deliberately created for purposes of (i) Complying with a prohibition order issued pursuant to section 301(c) of the Act, or (ii) Qualifying for a fuel mixtures exemption under the Act, provided such exemption is granted.

NEPA means the National Environmental Policy Act of 1969, as amended, 42 U.S.C. 4321 et seq.

New electric powerplant means any electric powerplant: (1) That was not classified as existing under part 515 of this subchapter; (2) That was reconstructed, as defined in these rules under the definition of "reconstruction"; or (3) For which construction was begun after November 9, 1978.

NGPA means the Natural Gas Policy Act of 1978, 15 U.S.C. 3301 et seq.

Nonboiler means any powerplant which is not a boiler and consists of either a combustion turbine unit or combined cycle unit.

Notice of violation means a written statement issued to a person by DOE that states one or more alleged violations of the provisions of these regulations, any order issued pursuant thereto, or the Act.

OBRA means the Omnibus Budget Reconciliation Act of 1981, Public Law

97-35.

OFE means the Office of Fossil Energy of OFE.

Offset means "emission offset".

Order means a final disposition, other than the issuance of a rule, issued by DOE pursuant to these regulations or the Act.

Person means any: