[Federal Register Volume 60, Number 88 (Monday, May 8, 1995)]
[Rules and Regulations]
[Pages 22503-22505]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-11213]
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Parts 2, 34, 35, 41, 131, 292, 294, 382, and 385
[Docket No. RM92-12-001; Order No. 575-A]
Streamlining of Regulations Pertaining to Parts II and III of the
Federal Power Act and the Public Utility Regulatory Policies Act of
1978
Issued May 2, 1995.
AGENCY: Federal Energy Regulatory Commission, DOE.
ACTION: Final rule; Order Granting and Dismissing Requests for
Clarification and Dismissing Requests for Rehearing.
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SUMMARY: The Federal Energy Regulatory Commission (Commission) is
granting and dismissing certain requests for clarification of its final
rule in this proceeding and dismissing requests for rehearing. The
requests for clarification and for rehearing relate to the Commission's
description of petroleum coke and to codification of Commission
precedent regarding the power production capacity of qualifying
facilities.
EFFECTIVE DATE: This order is effective May 2, 1995.
FOR FURTHER INFORMATION CONTACT:
Andre Goodson, Office of the General Counsel, Federal Energy Regulatory
Commission, 825 North Capitol St., NE., Washington, DC 20426,
Telephone: (202) 208-2167.
Joseph C. Lynch, Federal Energy Regulatory Commission, Office of the
General Counsel, 825 North Capitol Street, NE., Washington, DC 20426,
Telephone: (202) 208-2128.
SUPPLEMENTARY INFORMATION: In addition to publishing the full text of
this document in the Federal Register, the Commission also provides all
interested persons an opportunity to inspect or copy the contents of
this document during normal business hours in Room 3401, at 941 North
Capitol Street, NE., Washington, DC 20426.
The Commission Issuance Posting System (CIPS), an electronic
bulletin board service, provides access to the texts of formal
documents issued by the Commission. CIPS is available at no charge to
the user and may be accessed using a personal computer with a modem by
dialing (202) 208-1397. To access CIPS, set your communications
software to 19200, 14400, 12000, 9600, 7200, 4800, 2400, 1200 or
300bps, full duplex, no parity, 8 data bits and 1 stop bit. The full
text of this document will be available on CIPS for 60 days from the
date of issuance in ASCII and WordPerfect 5.1 format. After 60 days the
document will be archived, but still accessible. The complete text on
diskette in WordPerfect format may also be purchased from the
Commission's copy contractor, La Dorn Systems Corporation, also located
in Room 3104, 941 North Capitol Street, NE., Washington, DC 20426.
Order Granting and Dismissing Requests for Clarification and Dismissing
Requests for Rehearing
On January 13, 1995, the Commission issued a Final Rule in this
proceeding.1 The Final Rule revised and clarified the Commission's
policies regarding: rate filings by public utilities under the Federal
Power Act (FPA); issuances of securities and assumptions of liabilities
by public utilities, licensees and others; and procedural and technical
rules governing qualifying facilities (QFs).
\1\Streamlining of Regulations Pertaining to Parts II and III of
the Federal Power Act and the Public Utility Regulatory Policies Act
of 1978, Order No. 575, 60 FR 4831 (Jan. 25, 1995); III FERC Stats.
& Regs., Regulations Preambles 31,014 (1995).
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On February 13, 1995: (a) The American Petroleum Institute
(American Petroleum) filed a petition for clarification or, in the
alternative, a request for rehearing; (b) Texaco Cogeneration
Development (Texaco Cogen) filed a petition for clarification, or, in
the alternative, a request for rehearing; and (c) Granite State
Hydropower Association (Granite State) filed a petition for
clarification, or, in the alternative, a request for
rehearing. [[Page 22504]]
American Petroleum and Texaco Cogen
American Petroleum and Texaco Cogen focus on the same issue.
Section 292.204(b) requires that waste must comprise at least 75
percent of the fuel of a waste-fueled qualifying small power production
facility.2 The Final Rule recognized petroleum coke as waste for
the purposes of Sec. 292.204(b);3 it described petroleum coke as:
\2\18 CFR 292.204(b).
\3\60 FR at 4850; III FERC Stats & Regs. at 31,292.
A by-product of the oil refining process that is very low in
volatile matter, usually high in sulfur content, and an
environmentally hazardous waste.4
\4\Id. (emphasis added).
American Petroleum and Texaco Cogen object to the Commission's
characterization of petroleum coke as ``an environmentally hazardous
waste.''5 They argue that: (a) The Notice of Proposed Rulemaking
(NOPR) in this proceeding6 gave no notice that the Commission
would regard petroleum coke as an environmentally hazardous
waste;7 (b) there is no evidence in the record to support the
conclusion that petroleum coke is an environmentally hazardous waste;
and that, in any event, (c) the Commission is without authority to make
the determination that petroleum coke is an environmentally hazardous
waste.
\5\See American Petroleum Petition for Clarification/Request for
Rehearing at 2-9; Texaco Cogen Petition for Clarification/Request
for Rehearing at 1-3.
\6\Streamlining of Regulations Pertaining to Parts II and III of
the Federal Power Act and the Public Utility Regulatory Policies Act
of 1978, 57 FR 55176 (Nov. 24, 1992); IV FERC Stats. & Regs.,
Proposed Regulations 32,489 (1992).
\7\The NOPR listed petroleum coke among the energy sources that
the Commission proposed to treat as waste. The NOPR described
petroleum coke as follows:
Petroleum coke ordinarily has less than 1 percent ash, has a
high fixed carbon content (about 90 percent), is very low in
volatile matter (6 percent to 11 percent) and usually contains more
than 4.5 percent sulfur. For these reasons it is not a very
desirable boiler fuel.
57 FR at 55187 n.69; IV FERC Stats. & Regs. at 32,655 n.69.
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American Petroleum and Texaco Cogen ask that the Commission remove
from its characterization of petroleum coke in the preamble the words
``and an environmentally hazardous waste.'' Alternatively, Texaco Cogen
asks the Commission to state that the language that petroleum coke is
an environmentally hazardous waste is without substantive effect.
Granite State
In the NOPR, the Commission proposed to add a new Sec. 292.202(s),
which would codify Commission precedent regarding the power production
capacity of a QF. The Commission proposed to determine a QF's maximum
net sendout based on the safe and reliable operation of the facility.
The Commission also proposed to measure a QF's power production
capacity at the point of delivery to the transmission system of the
interconnected utility. This proposed rule would have codified the
Commission's decisions in Power Developers, Inc.8 and Turners
Falls Limited Partnership.9 In its comments, Granite State opposed
the codification of those decisions, at least as the codification might
apply to hydroelectric small power production facilities that are in
operation when such codification might take effect.
\8\32 FERC 61,101 (1985) (Power Developers).
\9\55 FERC 61,136 (1991) (Turners Falls).
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In the Final Rule, the Commission decided not to add the proposed
new Sec. 292.202(s) and, therefore, not to codify the Commission's
decisions in Power Developers and Turners Falls. The Commission noted
that two pending proceedings raise issues concerning the policy set
forth in Turners Falls, that the Commission is reviewing those issues
and will address them in those proceedings, that the Commission is not
prepared at this time to issue a final rule regarding the policy set
forth in Turners Falls and that the Commission may in the future codify
its policy after it has more experience on the issue.10
\10\60 FR at 4844; III FERC Stats. & Regs. at 31,282. The two
proceedings are: (a) Carolina Power & Light Company. v. Stone
Container Corp., Docket Nos. EL94-62-000 and QF85-102-005 (Stone
Container); and (b) Connecticut Valley Light & Power Company. v.
Wheelabrator Claremont Company, Docket Nos. EL94-10-000 and QF86-
177-001 (Wheelabrator).
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Granite State asks the Commission to clarify that it will codify
the decisions in Power Developers and Turners Falls only after it has
conducted a properly noticed rulemaking proceeding and to state that it
was not the Commission's intent in the Final Rule to apply those
decisions to other hydroelectric small power production
facilities.11 Should the Commission not grant the requested
clarification, Granite State seeks rehearing on the grounds that: (1)
Part 292 of the Commission's regulations, 18 CFR Part 292, allows small
power producers to sell any power--net or gross--produced by their
facilities as qualifying facilities and (2) the Commission may only
change the Part 292 regulations prospectively and only after the
Commission has conducted a properly noticed rulemaking proceeding.
\11\Granite State Request for Clarification or Rehearing at 2.
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Discussion
American Petroleum and Texaco Cogen
We agree with American Petroleum and Texaco Cogen that the record
is devoid of support for the statement that petroleum coke is an
environmentally hazardous waste. In any event, reference to the
environmental effects of petroleum coke is unnecessary to our
determination to include petroleum coke as a waste for the purposes of
Sec. 292.204(b). We will, therefore, grant American Petroleum's and
Texaco Cogen's request for clarification and will dismiss, as moot,
their alternative requests for rehearing.
Granite State
With respect to Granite State's opposition to codification and
application of the policy in the Power Developers and Turners Falls
decisions, we emphasize, as we stated in the January 13, 1995 Final
Rule, that we are reviewing the issue in the pending Stone Container
and Wheelabrator proceedings and would not expect to codify any
precedent regarding QF power production capacity without obtaining more
experience with this issue. Since the Commission decided not to codify
its precedent concerning QF power production capacity in the January
13, 1995 Final Rule, Granite State's challenge is premature.
Granite State's request that we not codify in our regulations the
policy set forth in Power Developers and Turners Falls without a
properly noticed rulemaking proceeding is also premature. Accordingly,
we will dismiss Granite State's requests for clarification and
rehearing.
The Commission Orders
(A) American Petroleum's and Texaco Cogen's petitions for
clarification are hereby granted; the first sentence in footnote 95 of
the preamble to the Final Rule, III FERC Stats. & Regs., Regulations
Preambles 31,014 at p. 31,292 n.95 (60 FR at 4850 n. 95), is hereby
amended to read, ``Petroleum coke is a by-product of the oil refining
process that is very low in volatile matter and usually high in sulfur
content.''
(B) American Petroleum's and Texaco Cogen's alternative requests
for rehearing are hereby dismissed.
(C) Granite State's requests for clarification and rehearing are
hereby dismissed as discussed in the body of this order.
[[Page 22505]] By the Commission.
Lois D. Cashell,
Secretary.
[FR Doc. 95-11213 Filed 5-5-95; 8:45 am]
BILLING CODE 6717-01-P
