The same day that the EPA released the final rule on Mercury and Air Toxics Standards (MATS) for power plants, it also published a Policy Memorandum outlining how it intended to handle requests for extensions in complying with the new rule. Yesterday, FERC announced how they intended to give the EPA a hand.
Section 112(i)(3) of the Clean Air Act establishes that affected sources must be compliant with MATS within three years, with an extension of up to one year available in certain cases. In addition, under Section 113(a) of the CAA – 42 USC 7413(a) – certain affected sources can obtain another one-year extension through an administrative order (AO).
The EPA’s Policy Memorandum addresses AOs issued for sources that “must operate in noncompliance with the MATS for up to a year to address a specific and documented reliability concern.” This extension would help bridge the gap when electric generating units may be needed to operate “to maintain the reliability of the electric grid when they would prefer, or could be required, to halt operations temporarily (until controls [needed to bring the unit into compliance with the new rules] can be installed).”
And this is where FERC steps in.
Because under the Federal Power Act, FERC is the regulatory agency charged with overseeing the reliability of the bulk power system, EPA plans to take advantage of FERC’s prowess. Although “the EPA’s issuance of an AO is not conditioned upon the approval or concurrence of any entity,” states the Policy Memorandum, “the EPA intends to consult, as necessary or appropriate on a case-by-case basis, with FERC and/or other entities with relevant reliability expertise.”
On January 30th, 2012, FERC released a white paper outlining the staff’s position on how FERC should advise the EPA on the requests for extensions. For instance, “Staff believes that the Commission should not permit entities to intervene in the preparation of the Commission comments to the EPA.”
One would hope not.
FERC is currently soliciting comments on the white paper under Docket No. AD12-1-000.