§ 303.202 Sanctions. (a) General. Any person who violates any provision of this Part 303, Parts 305, 307 or 309 of this chapter or any order issued 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 this Part 303, Part 305, Part 307, or Part 309 of this chapter 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 this Part 303, Part 305, Part 307 or Part 309 of this chapter or any order issued pursuant thereto shall be subject to a fine of not more than $5,000 for each violation. (2) Any person who knowingly and willfully offers for sale or distributes in commerce any coal in violation of any provision of Part 309 of this chapter or any order issued pursuant thereto, after having been subject to a civil penalty under paragraph (c) of this section for a prior violation of the provisions of Part 309 of this chapter or any order issued pursuant thereto, shall be subject to a fine of not more than $50,000 or imprisonment for not more than six months, or both, for each violation. (3) Criminal violations are prosecuted by the Department of Justice upon referral by DOE. (c) Civil penalties. (1) Any person who violates any provision of this Part 303, Part 305, Part 307 or Part 309 of this chapter 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 the DOE. (2) When the DOE considers it to be appropriate or advisable, the 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 the ESECA or FEAA/ by any person shall subject such person to the criminal penalties provided in 18 U.S.C. 1001 (1970). [40 FR 20465, May 9, 1975, as amended at 40 FR 28426, July 3, 1975] § 303.203 Injunctions. Whenever it appears to the 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 Parts 303, 305, 307 or 309 of this chapter, DOE may request the Attorney General to bring a civil action in the appropriate district court of the United States to enjoin such acts or practices and, upon a proper showing, a temporary restraining order or a preliminary or permanent injunction shall be granted without bond. The relief sought may include a mandatory injunction commanding any person to comply with any provision of such order or regulation, the violation of which is prohibited by section 12(a) of ESECA (15 U.S.C. 797). [40 FR 20465, May 9, 1975, as amended at 43 FR 23140, May 6, 1977] § 305.1 Scope. (a) Applicability. This part applies to certain powerplants and major fuel burning installations that DOE is authorized to prohibit from burning natural gas or petroleum products as their primary energy source. (b) Purpose. This part, together with Part 303 of this chapter, establishes the methods and procedures by which DOE will exercise its powers under section 2 of ESECA (15 U.S.C. 792) to prohibit a powerplant or major fuel burning installation from burning natural gas or petroleum products as its primary energy source. [40 FR 20486, May 9, 1975, as amended at 42 23140, May 6, 1977] § 305.2 Definitions. For purposes of this part "Action" means a prohibition order, or modification or rescission of such order, issued by DOE pursuant to sections 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 subsections (c) or (d) of section 119, section 110(a)(2)(F)(v), or section 303 of such Act (42 U.S.C. 1857c-10(c), (d), 1857c-5(a)(2)(F)(v) and 1857h-1, 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. 1857, et seq. (1970), as amended by Pub. L. 93319, 88 Stat. 246. "Coal" includes coal derivatives. "Compliance date extension" means an extension issued by the Administrator of EPA in accordance with section 119(c) of the Clean Air Act (42 U.S.C. 1857c-10(c)) as a result of which a powerplant or major fuel burning installation shall not, until January 1, 1979, be prohibited, by reason of the application of any air pollution re quirement, from burning coal which is available to that source, except as otherwise provided in section 119(d)(3) of that Act (42 U.S.C. 1857c-10(d)(3).) “Dispatching system” mears (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 Power Commission, to constitute a power generation system sufficient in scope that DOE may make a reliability finding within the meaning of ESECA. "EPA" means the Environmental Protection Agency. "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. "DOE" means the Department of Energy, including the Department of Energy as defined in section 14(a) of ESECA (15 U.S.C. 798 (a)), or his delegate. "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" means either a written statement issued by DOE to an existing powerplant or major fuel burning installation, subsequent to a certification or notification by EPA pursuant to section 119(d) (1) (B) of the Clean Air Act (42 U.S.C. 1857c-10(d)(1)(B), 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 powerplant or major fuel burning installation advising such powerplant or in tallation of the date that a construcion order applicable to it becomes efXective. "Person" means any association, irm, company, corporation, estate, individual, joint-venture, partnership, or Cole proprietorship or any other entity however organized including charitable, educational, or other eleemosymary institutions, and the Federal Government, including corporations, lepartments, Federal agencies, and other instrumentalities, and State and ocal governments, and includes any =officer, director, owner or duly authorzed representative thereof. The DOE nay, in regulations and in any forms ssued 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 enities, (c) An unconsolidated entity, or "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 compliance date extensions by EPA in accordance with section 119 of the Clean Air Act (42 U.S.C. 1857c-10), 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 utili zation 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 controls and precise flame characteristics. "Prohibition order" means a directive issued by DOE pursuant to sections 2 (a) and (b) of ESECA (15 U.S.C. 792 (a), (b)) that prohibits a powerplant or major fuel burning installation from burning natural gas or petroleum products as its primary energy source. "Stationary source fuel or emission limitation" means any emission limitation, schedule or timetable of compliance, or other requirement, which is prescribed under the Clean Air Act (other than sections 119, 111(b), 112, or 303 (42 U.S.C. 1857c-10, 1857c-6(b), 1857c-7 and 1857h-1, respectively)) or contained in an applicable implementation plan (other than a requirement imposed under authority described in section 110(a)(2)(F)(v) of such Act (42 U.S.C. 1857c-5(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. 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. [10 FR 20486, May 9, 1975, as amended at 42 FR 23140, May 6, 1977] § 305.3 Powerplants. (a) Any powerplant shall be prohibited from using natural gas or petroleum products as its primary energy source, by means of the issuance of a prohibition order to such powerplant, if the findings stated in paragraph (b) of this section are made by DOE. DOE may, at its discretion, make these findings for an individual powerplant or for combinations thereof at a single site. (b) No powerplant shall be prohibited from burning natural gas or petroleum products as its primary energy source unless DOE finds that: (1) The powerplant (i) on June 22, 1974 had, or thereafter acquires or is designed with, the "capability and necessary plant equipment" to burn coal, or (ii) has been issued a construction order pursuant to Parts 303 and 307 of this chapter. For purposes of determining whether a powerplant had on June 22, 1974, or thereafter acquires or is designed with, the capability and necessary plant equipment to burn coal, DOE will evaluate coal and ash handling facilities and appurtenances-internal and external; availability of land for the storage of coal; and other equipment such as a boiler, unloaders, conveyors, crushers, pulverizers, scales, burners, soot blowers, and special coal-burning instrumentation and controls. The absence of any one or combination of these facilities or equipment is not grounds, however, for concluding that the plant lacked the capability and the necessary plant equipment to burn coal. (2) The prohibition of the utilization of natural gas or petroleum products is "practicable and consistent with the purposes of ESECA." For purposes of this finding (i) The determination of the "practicability" of a prohibition shall include an analysis of the reasonableness of additional costs associated with burning coal, including, but not limited to, fuel costs, costs of equipment for coal burning, the costs of complying with the requirements of the Clean Air Act, and the costs of complying with other applicable environmental protection requirements; as well as the financial capabilities of the powerplant owner. The analysis concerning the costs associated with the requirements of the Clean Air Act shall be based on the facts that are available to DOE prior to the time of issuance of the order. (ii) The prohibition shall be considered to be "consistent with the purposes" of ESECA if it serves as a means to discourage the use of natural gas and petroleum products and to encourage increased or continued use of coal by powerplants in a manner that is consistent, to the fullest extent practicable, with existing national commitments to protect and improve the environment. (3) Coal and coal transportation facilities will be available during the period the prohibition is in effect. For purposes of this finding (i) The availability of coal shall be determined by evaluating the type of coal that it is anticipated that the powerplant will be able to utilize, and the location of such coal; evaluating the practicability of coal production, including the possibility of new mines being opened, and anticipated demand; and evaluating State or local laws or policies limiting the extraction or utilization of coal. (ii) The availability of coal transportation facilities shall be determined by evaluating the method by which coal is or could be transported to the powerplant, including the availability of rolling stock and trucks, barges, pipelines and other relevant means of transportation. (4) The prohibition will not “impair the reliability of service" in the area served by the powerplant. For purposes of this finding (i) Whether there will be an impair ment of the “reliability of service" shall be determined by an analysis of the loads of the electric power dis patching system of which the power. plant is a part, the net dependable electrical capacity and energy resources of such system in relation to the powerplant's electric power and energy output as a result of a prohibition order, and an evaluation of the ef fects on such system of any scheduled outage the powerplant might experi ence in ceasing the burning of natural gas or petroleum products as its primary energy source. (ii) "Impairment" means a significant increase in the probability of loss of load on the dispatching system of which the powerplant is a part that would result from such powerplant being prohibited from burning natural gas or petroleum products as its primary energy source, which increase in probability of loss is sufficient to result in a substantial hazard to commerce or the public health and safety. (c) A powerplant may be prohibited from using natural gas or petroleum products as its primary energy source as a result of DOE action taken on its initiative or at the conclusion of a proceeding initiated by an application. 40 FR 20486, May 9, 1975, as amended at 42 FR 23141, May 6, 1977] 305.4 Major fuel burning installations. (a) A major fuel burning installation may be prohibited from using natural gas or petroleum products as its primary energy source by means of the issuance of a prohibition order to such installation if the findings stated in paragraph (b) of this section are made by DOE. DOE may, at its discretion, make these findings for an individual fossil-fuel boiler, burner or other combuster of fuel, or for combinations thereof at a single site. (b) No major fuel burning installation shall be prohibited from burning natural gas or petroleum products as its primary energy source unless DOE finds that: (1) The major fuel burning installation has a design firing rate of 100 million Btu's per hour or greater and (i) on June 22, 1974 had, or thereafter acquires or is designed with, the "capability and necessary plant equipment" to burn coal, or (ii) has been issued a construction order pursuant to Parts 303 and 307 of this chapter. For purposes of determining whether a major fuel burning installation had on June 22, 1974, or thereafter acquires or is designed with, the capability and necessary plant equipment to burn coal, DOE will evaluate coal and ash handling facilities and appurtenances-internal and external; availability of land for the storage of coal; and equipment such as a boiler, burner or other combuster of fuel, unloaders, conveyors, crushers, pulverizers, scales, burners, soot blowers, and special coalburning instrumentation and controls. The absence of any one or combination of these facilities or equipment is not grounds, however, for concluding that the installation lacked the capability and the necessary plant equipment to burn coal. (2) The prohibition of the utilization of natural gas and petroleum products is "practicable and consistent with the purposes of ESECA." For purposes of this finding (i) The determination of the "practicability" of a prohibition shall include an analysis of the reasonableness of additional costs associated with burning coal, including, but not limited to, fuel costs, costs of equipment for coal burning, costs of complying with the requirements of the Clean Air Act, and the costs of complying with other applicable environmental protection requirements; as well as the financial capabilities of the owner of the major fuel burning installation. The analysis concerning the costs associated with the requirements of the Clean Air Act shall be based on the facts that are available to DOE prior to the time of issuance of the order. (ii) The prohibition shall be considered to be "consistent with the purposes" of ESECA if it serves as a means to discourage the use of natural gas and petroleum products and to encourage the use of coal as a primary energy source by major fuel burning installations in a manner consistent, to the fullest extent practicable, with existing national commitments to protect and improve the environment. (3) Coal and coal transportation facilities will be available during the period the prohibition order is in effect. For purposes of this finding (i) The availability of coal shall be determined by evaluating the type of coal that it is anticipated that the major fuel burning installation will be able to utilize and the location of such coal; evaluating the practicability of coal production, including the possibility of new mines being opened during the period the prohibition order is in effect, and anticipated demand; and evaluating State or local laws or policies limiting the extraction or the utilization of coal. (ii) The availability of coal transportation facilities shall be determined by evaluating the method by which coal is or could be transported to the major fuel burning installation, including the |