[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] ======================================================================= ----------------------------------------------------------------------- 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. ----------------------------------------------------------------------- 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). --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- 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). --------------------------------------------------------------------------- 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). --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- 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