The Commission's Role Regarding the Environmental Protection Agency's Mercury and Air Toxics Standards; Policy Statement on the Commission's Role Regarding the Environmental Protection Agency's Mercury and Air Toxics Standards, 30274-30278 [2012-12342]

Download as PDF 30274 Federal Register / Vol. 77, No. 99 / Tuesday, May 22, 2012 / Notices (866) 208–3676 (toll free). For TTY, call (202) 502–8659. Dated: May 16, 2012. Nathaniel J. Davis, Sr., Deputy Secretary. [FR Doc. 2012–12310 Filed 5–21–12; 8:45 am] BILLING CODE 6717–01–P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Dated: May 16, 2012. Nathaniel J. Davis, Sr., Deputy Secretary. [Docket No. ER12–1773–000] srobinson on DSK4SPTVN1PROD with NOTICES Inupiat Energy Marketing, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization [FR Doc. 2012–12311 Filed 5–21–12; 8:45 am] BILLING CODE 6717–01–P This is a supplemental notice in the above-referenced proceeding of Inupiat Energy Marketing, LLC’s application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability. Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission’s Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. Notice is hereby given that the deadline for filing protests with regard to the applicant’s request for blanket authorization, under 18 CFR Part 34, of future issuances of securities and assumptions of liability, is June 5, 2012. The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at https:// www.ferc.gov. To facilitate electronic service, persons with Internet access who will eFile a document and/or be listed as a contact for an intervenor must create and validate an eRegistration account using the eRegistration link. Select the eFiling link to log on and submit the intervention or protests. Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426. The filings in the above-referenced proceeding are accessible in the Commission’s eLibrary system by VerDate Mar<15>2010 18:45 May 21, 2012 Jkt 226001 clicking on the appropriate link in the above list. They are also available for review in the Commission’s Public Reference Room in Washington, DC. There is an eSubscription link on the web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email FERCOnlineSupport@ferc.gov. or call (866) 208–3676 (toll free). For TTY, call (202) 502–8659. DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. PL12–1–000] The Commission’s Role Regarding the Environmental Protection Agency’s Mercury and Air Toxics Standards; Policy Statement on the Commission’s Role Regarding the Environmental Protection Agency’s Mercury and Air Toxics Standards Before Commissioners: Jon Wellinghoff, Chairman; Philip D. Moeller, John R. Norris, and Cheryl A. LaFleur. 1. The Commission issues this Policy Statement to explain how it will provide advice to the Environmental Protection Agency (EPA) for it to rule on requests for Administrative Orders (AO) to operate in noncompliance with EPA’s Mercury and Air Toxics Standards (MATS).1 As noted below, this Policy Statement does not represent the entirety of the Commission’s efforts to monitor the impact of EPA regulations generally on bulk-power system reliability. I. Introduction 2. On December 21, 2011, the EPA released the MATS final rule pursuant to its authority under Section 112 of the Clean Air Act (CAA).2 The MATS final rule limits mercury, acid gases and other toxic emissions from power plants. Pursuant to Section 112(i)(3)(A) 1 National Emission Standards for Hazardous Air Pollutants from Coal- and Oil-fired Electric Utility Steam Generating Units and Standards of Performance for Fossil-Fuel-Fired Electric Utility, Industrial-Commercial-Institutional, and Small Industrial-Commercial-Institutional Steam Generating Units, https://www.gpo.gov/fdsys/pkg/ FR-2012-02-16/pdf/2012-806.pdf. 2 42 U.S.C. 7412(i)(3)(A) (2006). PO 00000 Frm 00015 Fmt 4703 Sfmt 4703 of the CAA, affected sources are required to comply within three years of the MATS effective date. Pursuant to CAA Section 112(i)(3)(B), some affected sources are eligible for a one-year extension (i.e. for a total of four years).3 3. The EPA’s Office of Enforcement and Compliance Assurance released a policy memorandum (EPA Policy Memorandum) dated December 16, 2011 describing its intended approach regarding the use of CAA Section 113(a) AOs with respect to sources that must operate in noncompliance with the MATS for up to a year to address a specific and documented reliability concern (i.e. for a total of five years).4 4. On January 30, 2012, Commission staff issued a White Paper seeking comment concerning staff’s position on how the Commission should advise the EPA on requests for extension of time to comply with EPA’s MATS. The Commission has considered all comments received in the formulation of this Policy Statement, which is limited in scope to how the Commission will handle an AO filing under CAA Section 113(a) for noncompliance with the MATS. This Policy Statement does not address the entirety of the Commission’s efforts to monitor the impact of EPA regulations generally on bulk-power system reliability. II. Background A. Compliance With EPA’s Mercury and Air Toxics Standards 5. Under Section 112(i)(3) of the CAA, affected sources must be compliant with MATS within three years, with an extension of up to one year available in certain cases.5 In addition to the up to four-year compliance period contemplated in Section 112(i)(3), the EPA Policy Memorandum describes a process by which certain affected sources can obtain an AO to operate in noncompliance for an additional year pursuant to Section 113(a) of the CAA. Specifically, the EPA Policy Memorandum contemplates that the EPA will receive AO requests: (1) Concerning electric generating units (EGUs) that may affect reliability due to deactivation; and (2) concerning EGUs 3 See id. § 7412(i)(3)(B). Environmental Protection Agency’s Enforcement Response Policy For Use Of Clean Air Act Section 113(a) Administrative Orders In Relation To Electric Reliability And The Mercury and Air Toxics Standard (Dec. 16, 2011), https:// www.epa.gov/compliance/resources/policies/civil/ erp/mats-erp.pdf. 5 The EPA Policy Memorandum refers to the date by which affected sources must comply under Section 112(i)(3) of the CAA (which includes the possible one-year extension under Section 112(i)(3)(B)) as the ‘‘MATS Compliance Date.’’ 4 The E:\FR\FM\22MYN1.SGM 22MYN1 Federal Register / Vol. 77, No. 99 / Tuesday, May 22, 2012 / Notices that may affect reliability due to delays related to the installation of controls.6 6. The EPA Policy Memorandum states that an AO cannot be issued under Section 113(a) prior to the MATS Compliance Date in Section 112(i)(3).7 However, provided an owner/operator has timely submitted a complete request and provided appropriate cooperation, the EPA expects to give an owner/ operator ‘‘as much advance written notice as practicable of the [EPA’s] plans with regard to such an AO.’’ 8 7. The EPA Policy Memorandum states that in evaluating a request for an AO, the EPA will seek advice, on a caseby-case basis, from the Commission and/or other entities with relevant reliability expertise.9 However, the EPA’s issuance of an AO is not conditioned upon the approval or concurrence of the Commission or any other entity. 1. General Requirements for AO Requests 8. The EPA Policy Memorandum provides that within one year after the MATS effective date, an owner/operator should submit written notice of its compliance plans (Notice of Compliance Plans) with regard to each EGU it owns or operates to the planning authority for the area in which the relevant EGU is located. According to the EPA, the Notice of Compliance Plans should identify: (1) The units the owner/operator plans to deactivate and the anticipated dates of deactivation; and (2) the units for which it intends to install pollution control equipment or otherwise retrofit and the anticipated schedule for completion of that work. 9. The EPA Policy Memorandum states that an owner/operator should, generally no less than 180 days prior to the MATS Compliance Date,10 submit a 6 EPA 7 Id. Policy Memorandum at 4. at 5. srobinson on DSK4SPTVN1PROD with NOTICES 8 Id. 9 The EPA Policy Memorandum states that ‘‘in light of the complexity of the electric system and the local nature of many reliability issues, the EPA will, for purposes of using its Section 113(a) AO authority in this context, rely for identification and/or analysis of reliability risks upon the advice and counsel of reliability experts, including, but not limited to, the Federal Energy Regulatory Commission (‘FERC’), Regional Transmission Operators (‘RTOs’), Independent System Operators (‘ISOs’) and other Planning Authorities as identified herein, the North American Electric Reliability Corporation (‘NERC’) and affiliated regional entities, and state public service commissions (‘PSCs’) and public utility commissions (‘PUCs’). The EPA will work with these and other organizations, as appropriate, to ensure that any claims of reliability risks are properly characterized and evaluated.’’ EPA Policy Memorandum at 2. 10 The EPA Policy Memorandum also has provisions for an owner/operator to, in certain circumstances, provide less notice to the EPA and the Commission. VerDate Mar<15>2010 17:20 May 21, 2012 Jkt 226001 written request to the EPA 11 for an enforceable compliance schedule in an AO for the unit. An owner/operator should submit the following information for all AO requests: (1) Copies of the Notice of Compliance Plans provided to the planning authority or an explanation why it was not practicable to have provided such notice and a demonstration that such notice was provided as soon as it was practicable; (2) Written analysis of the reliability risk if the EGU were not in operation, which demonstrates that operation of the unit after the MATS Compliance Date is critical to maintaining electric reliability, and that failure to operate the unit would: (a) Result in the violation of at least one of the reliability criteria required to be filed with the Commission, and, in the case of the Electric Reliability Council of Texas, with the Texas Public Utility Commission; or (b) cause reserves to fall below the required system reserve margin; (3) Written concurrence with the reliability risk analysis, or a separate and equivalent analysis, by the planning authority for the area in which the relevant EGU(s) are located, or, in the alternative, a written explanation of why such concurrence or separate and equivalent analysis cannot be provided, and, where practicable, any related system wide analysis by such entity; (4) Copies of any written comments from third parties directed to, and received by, the owner/operator in favor of, or opposed to, operation of the unit after the MATS Compliance Date; (5) A plan to achieve compliance with the MATS no later than one year after the MATS Compliance Date, and, where practicable, a written demonstration of the plan to resolve the underlying reliability problem and the steps and timeframe for implementing it, which demonstrates that such resolution cannot be effected on or before the MATS Compliance Date; and (6) Identification of the level of operation of the EGU that is required to 11 This request is to be submitted electronically to the Director of the Air Enforcement Division in the EPA’s Office of Enforcement and Compliance Assurance and the Regional Administrator of the EPA region in which the EGU is located, with a copy to the Commission. At the same time, an owner/operator should provide notice that it is seeking an AO to: (1) The planning authority, (2) any state public utility commissions or public service commissions with regulatory jurisdiction with regard to the relevant EGU, and (3) any state, tribal or local environmental agency with permitting authority under Titles I and V of the CAA, and any tribal environmental agency that does not have such authority, with jurisdiction over the area in which the EGU is located (collectively, ‘‘AO Notice Recipients’’). PO 00000 Frm 00016 Fmt 4703 Sfmt 4703 30275 avoid the documented reliability risk and, consistent with that level, a proposal for operational limits and/or work practices to minimize or mitigate any hazardous air pollutant emissions to the extent practicable during any operation not in full compliance with the MATS.12 2. Specific Requirements for AO Requests 10. As stated above, the EPA Policy Memorandum states that the owner/operator of an EGU that wants to obtain an AO must, no less than 180 days prior to the MATS Compliance Date, submit electronically a written request for an enforceable compliance schedule. To request an AO for any EGU that is required to run for reliability purposes that, due to factors beyond the control of the owner/operator, have delays in installation of controls or need to operate because another EGU has had such a delay, the EPA Policy Memorandum states that an owner/operator should: (1) Within a reasonable time of learning of a delay that it believes may result in an EGU being unable to comply by the MATS Compliance Date, provide to the planning authority for the area in which the relevant EGU(s) are located, written notice of the EGU(s) impacted by the delay, the cause of the delay, an estimate of the length of time of the delay, and the timeframe during which the owner/operator contemplates operation in non-compliance with the MATS; (2) within a reasonable time of learning that it is critical to reliability to operate the identified EGU(s) in noncompliance with the MATS after the MATS Compliance Date, submit electronically to the AO Request Recipients a written request for an enforceable compliance schedule in an AO for the EGU(s), which includes information responsive to as many of the general requirements discussed above as it is possible to provide at that time; and (3) at the same time the owner/operator submits its request for an AO, provide notice that it is seeking such an AO to the AO Notice Recipients. B. Energy Policy Act of 2005 and Mandatory Reliability Standards 11. Section 215 of the Federal Power Act (FPA) requires a Commissioncertified Electric Reliability Organization (ERO) to develop mandatory and enforceable Reliability Standards, which provide for the reliable operation of the Bulk-Power System, subject to Commission review 12 EPA E:\FR\FM\22MYN1.SGM Policy Memorandum at 6–7. 22MYN1 30276 Federal Register / Vol. 77, No. 99 / Tuesday, May 22, 2012 / Notices and approval.13 On February 3, 2006, the Commission issued Order No. 672 to implement the requirements of section 215 of the FPA governing electric reliability.14 III. Commission Policy for Advice to the EPA Under the EPA’s Policy Memorandum 12. The EPA Policy Memorandum indicates that the EPA intends to seek advice, as necessary and on a case-bycase basis from the Commission, among others, as the EPA decides whether it will grant an AO to an owner/operator. The EPA Policy Memorandum makes clear that the EPA decision as to whether to grant an AO to an owner/operator is solely the decision of the EPA and that the concurrence or approval of any entity is not a condition for approval or denial of an AO request.15 The Commission believes that it is important to provide as much guidance to industry as possible as to how the Commission intends to provide advice to the EPA on any AO request. In developing this process, the Commission considered how to provide a fair and transparent process for communicating the Commission’s expertise on reliability issues, while respecting that the EPA will seek the Commission’s advice in a timely manner so that EPA can decide whether to grant certain AOs. srobinson on DSK4SPTVN1PROD with NOTICES A. Commission Process for Advising the EPA Under the EPA’s Policy Memorandum Submittal of Information to the Commission 13. The EPA Policy Memorandum explains that when an owner/operator submits an AO request: (1) for EGUs that may affect reliability due to deactivation; and (2) for EGUs that may affect reliability due to delays related to the installation of controls, the owner/ operator must provide a copy of the request to the Commission. This AO request must include an owner/ operator’s ‘‘written analysis of the reliability risk if the unit were not in operation, which demonstrates that operation of the unit after the MATS Compliance Date is critical to maintaining electric reliability, and that failure to operate the unit would * * * result in the violation of at least one of the reliability criteria required to be 13 16 U.S.C. 824o(d)(2). Concerning Certification of the Electric Reliability Organization; and Procedures for the Establishment, Approval, and Enforcement of Electric Reliability Standards, Order No. 672, FERC Stats. & Regs. ¶ 31,204, order on reh’g, Order No. 672–A, FERC Stats. & Regs. ¶ 31,212 (2006). 15 EPA Policy Memorandum at 7. 14 Rules VerDate Mar<15>2010 17:20 May 21, 2012 Jkt 226001 filed with [the Commission] * * *.’’ 16 In addition, the AO request will include the Planning Authority’s written concurrence with the owner/operator’s analysis, or a written explanation of why the Planning Authority’s concurrence cannot be provided. 14. As an initial matter, each AO request should be filed with the Commission. The Commission will treat any AO request filed with the Commission as an informational filing. The Commission will assign each informational filing a separate Administrative Docket (AD) number. The Commission’s Office of Electric Reliability will be designated as the lead office tasked with processing an owner/ operator’s informational filing. 15. Each informational filing should include the same information that the owner/operator submitted to the EPA pursuant to the EPA Policy Memorandum. While the Commission does not propose mandating that Planning Authorities undertake specific types of analyses, the Commission identifies below certain types of information that are already available today and that the Commission commonly reviews when examining potential violations of Reliability Standards.17 Including this information as part of the materials an owner/ operator submits to the EPA, and therefore to the Commission, would aid in the Commission’s review of the informational filing. It is essential that the Commission receive enough information to review the claims made by a requesting owner/operator so that the Commission can provide timely comments to the EPA. These types of information include, but are not limited to, system planning and operations studies, system restoration studies or plans, operating procedures, and mitigation plans required by the Reliability Standards.18 By suggesting 16 Id. 17 The Commission does not believe it is necessary to identify specific factors that each planning authority must take into account in assessing system reliability outside of the NERC planning standards. The existing processes used by the Planning Authorities to conduct reliability assessments, which are based on the NERC planning standards and performed under NERC’s oversight, appear to be sufficient. We encourage NERC to continue to work closely with the Planning Authorities to ensure that these existing processes adequately assess system reliability in the specific circumstances presented by compliance with EPA regulations. In addition, Commission staff is available to Planning Authorities and participants in these processes for consultation on these matters. Also, we expect Commission staff to monitor these processes through periodic outreach to Planning Authorities. 18 The Commission reviews power flow, dynamic, or other simulation results that support the Reliability Standards as well as the modeling PO 00000 Frm 00017 Fmt 4703 Sfmt 4703 what information would aid the Commission in its review, the Commission is not requiring any specific analysis be done or indicating that this information must be submitted or what the EPA should consider, but rather what the Commission would find informative when reviewing potential violations of Reliability Standards.19 16. The Commission generally anticipates it would not have to seek additional information. The Commission is concerned that seeking additional information from an owner/ operator of an EGU could delay or prevent the Commission from issuing timely comments to the EPA.20 B. Scope and Standard of Review for Informational Filings 17. EPA states that the analysis provided in an AO request should demonstrate ‘‘that operation of the unit after the MATS Compliance Date is critical to maintaining electric reliability, and that failure to operate the unit would: (a) result in the violation of at least one of the reliability criteria required to be filed with the Commission, and, in the case of the Electric Reliability Council of Texas, with the Texas Public Utility Commission; or (b) cause reserves to fall below the required system reserve margin.’’ Commission review of an informational filing will be conducted pursuant to section 307(a) of the FPA, the Commission’s general investigative authority. The review will examine whether, based on the circumstances presented, there might be a violation of a Commission-approved Reliability Standard.21 In addition, the Commission’s comments to the EPA could also identify issues, pursuant to our other areas of authority, raised by the AO request for the EPA to consider as critical to reliability.22 Further, an assumptions used in these simulations. Modeling assumptions may include factors such as the base case used, demand levels, modifications made to the base case, system transfers modeled, scheduled outages modeled, and contingencies tested. 19 We understand that these types of information are readily available today so that their submission should not impose a burden on the owner/operator. 20 However, the Commission reserves the right to seek additional information regarding a filing when necessary. 21 A statement by the Commission indicating that circumstances presented ‘‘might’’ result in the violation of a Reliability Standard would not constitute a final determination under section 215 of the FPA that a Reliability Standard has or will be violated. That is, the Commission comments will reflect our preliminary view based on information presented about a possible hypothetical circumstance in the future, not a final agency action triggering civil penalties or other enforcement actions. 22 For example, the Commission may determine that the potential closure of an EGU could trigger E:\FR\FM\22MYN1.SGM 22MYN1 Federal Register / Vol. 77, No. 99 / Tuesday, May 22, 2012 / Notices srobinson on DSK4SPTVN1PROD with NOTICES EGU’s continued operation may have reliability impacts beyond those implicated by the Commission’s jurisdiction. The EPA should look to NERC and state commissions, among the other entities it has enumerated, for guidance in those areas.23 18. The Commission’s jurisdiction under section 215 is over the ERO, Regional Entities, and all users, owners and operators of the bulk-power system ‘‘for purposes of approving Reliability Standards established under [section 215] and enforcing compliance with [section 215].’’ 24 Further, section 215 states that ‘‘this section does not authorize the ERO or the Commission to order the construction of additional generation or transmission capacity or to set and enforce compliance with standards for adequacy or safety of electric facilities or services.’’ 25 In addition, section 215 specifically preserves authority of states over safety, resource adequacy, and even reliability as long as the latter does not conflict with the Commission’s Reliability Standards. 19. While our comments to the EPA are largely limited to whether the issue in question may result in the violation of a Reliability Standard, we recognize that the EPA is not so limited in what it may consider in reviewing a request for an AO. Indeed, the EPA Policy Memorandum indicates that the EPA may also seek advice and counsel of reliability experts, including, state public service commissions and public utility commissions, RTOs and ISOs, Planning Authorities, NERC and affiliated regional entities—and we encourage them to do so. Nothing in this Policy Statement precludes NERC, state agencies or others from providing the EPA with information regarding resource adequacy and other local reliability concerns that are not addressed in the Commission’s comments to the EPA. 20. The Commission will review the Planning Authority’s analysis included in each informational filing to ensure that it was reasonable and sufficiently supported by the information supplied, recognizing the Planning Authority’s knowledge of, and expertise on, local and regional conditions. The Commission would focus on whether the Planning Authority’s reliability the Commission’s jurisdiction outside of section 215 of the FPA. See e.g., Exelon Generation Co., LLC, 132 FERC ¶ 61,219 (2010). 23 Commission staff will also be available to communicate with the EPA on any reliabilityrelated issues to aid the EPA in its consideration of these issues. 24 16 U.S.C. 824o(b). 25 Id. § 824o(i)(2). VerDate Mar<15>2010 17:20 May 21, 2012 Jkt 226001 analysis has identified and supported, in a detailed and reasoned fashion, whether there might be a violation of a Commission-approved Reliability Standard. 21. The Commission will advise the EPA, as contemplated by the EPA Policy Memorandum, by submitting written Commission comments to the EPA based on the Commission’s review of the information provided in the informational filing.26 The Commission’s comments would provide advice to the EPA on whether, based on the Commission’s review of the informational filing, there might be a violation of a Commission-approved Reliability Standard. As noted above, the Commission’s comments may also identify issues within its jurisdiction other than a potential violation of a Commission-approved Reliability Standard. The Commission comments will not address the appropriateness of granting or denying an AO. C. Intervention and Other Procedures The Commission’s process will not provide for entities to intervene in the AD dockets.27 The EPA Policy Memorandum generally anticipates that an AO request will be filed 180 days prior to the MATS Compliance Date and the Commission is concerned that allowing interventions may inhibit the Commission’s ability to timely provide advice to the EPA. In addition, interventions are not available generally in a matter under investigation pursuant to Section 307(a) of the FPA. Yet the lack of a formal intervention procedure does not preclude an interested entity from being heard. The EPA Policy Memorandum requires an owner/ operator requesting an AO to submit ‘‘[c]opies of any written comments from third parties directed to, and received by, the owner/operator in favor of, or opposed to, operation of the unit after the MATS compliance date.’’ 28 These materials should also be included as 26 The Commission will vote on the Commission comments before submission to the EPA. Commission comments submitted to the EPA will be publicly posted on the Commission’s eLibrary system under the applicable AD docket number. Differing views by any Commissioner will also be submitted to the EPA in writing and will be publicly posted on the Commission’s eLibrary system. 27 While the Commission will not seek comments on these informational filings, if comments are received by the Commission, these would be placed in the associated AD docket. Because these would be informational dockets, while the Commission may consider these comments, it would not be required to do so. Due to the nature of the Commission’s comments as non-final agency action and the limited time for the Commission to act, the Commission does not anticipate responding to any comments that may be submitted in an AD docket. 28 EPA Policy Memorandum at 7. PO 00000 Frm 00018 Fmt 4703 Sfmt 4703 30277 part of the informational filing an owner/operator submits to the Commission under the requirements in the EPA Policy Memorandum.29 While the Commission is not imposing any additional requirements, we anticipate that owners/operators will, consistent with the EPA Policy Memorandum, provide third parties with an opportunity to offer ‘‘written comments * * * in favor of, or opposed to, operation of the unit after the MATS compliance date’’ before they submit their AO request. IV. Conclusion 22. This Policy Statement explains how the Commission plans to advise the EPA under the EPA’s Policy Memorandum. The Commission believes the process appropriately takes into account the need for timeliness, fairness, and transparency, while respecting the Commission’s jurisdiction over electric reliability. As stated in the EPA Policy Memorandum, whether or to what extent the EPA considers or relies on the Commission’s comments, and whether to grant an AO to an owner/operator, will rest entirely with the EPA. 23. Additionally, we emphasize that this Policy Statement does not represent the entirety of the Commission’s efforts to monitor the impact of EPA regulations generally on bulk-power system reliability. For example, the Commission intends to continue addressing these issues with state commissions in a regular public forum, the National Association of Regulatory Utility Commissioners/FERC Forum on Reliability and the Environment. The Commission and its staff will also continue to review plans, reports and other information generated by the Planning Authorities, industry and other stakeholders regarding the impact of compliance with EPA regulations. To the extent additional analysis or evidence would aid the Commission’s efforts to monitor these issues, we will consider holding additional technical conferences or workshops.30 Finally, the Commission will monitor and promptly review proposals from regulated entities that may seek to modify their tariffs in order to reliably and efficiently comply with EPA regulations. By the Commission. 29 Id. at 5, 6. Commission held a technical conference on these issues on November 30, 2011, in Docket No. AD12–1–000. 30 The E:\FR\FM\22MYN1.SGM 22MYN1 30278 Federal Register / Vol. 77, No. 99 / Tuesday, May 22, 2012 / Notices Issued: May 17, 2012. Nathaniel J. Davis, Sr., Deputy Secretary. [FR Doc. 2012–12342 Filed 5–21–12; 8:45 am] BILLING CODE 6717–01–P ENVIRONMENTAL PROTECTION AGENCY [EPA–HQ–OECA–2011–0254; FRL–9517–6] Agency Information Collection Activities; Submission to OMB for Review and Approval; Comment Request; NESHAP for Miscellaneous Metal Parts and Products (Renewal) Environmental Protection Agency (EPA). ACTION: Notice. AGENCY: In compliance with the Paperwork Reduction Act (44 U.S.C. 3501 et seq.), this document announces that an Information Collection Request (ICR) has been forwarded to the Office of Management and Budget (OMB) for review and approval. This is a request to renew an existing approved collection. The ICR which is abstracted below describes the nature of the collection and the estimated burden and cost. DATES: Additional comments may be submitted on or before June 21, 2012. ADDRESSES: Submit your comments, referencing docket ID number EPA–HQ– OECA–2011–0254, to: (1) EPA online using www.regulations.gov (our preferred method), or by email to docket.oeca@epa.gov, or by mail to: EPA Docket Center (EPA/DC), Environmental Protection Agency, Enforcement and Compliance Docket and Information Center, mail code 28221T, 1200 Pennsylvania Avenue NW., Washington, DC 20460; and (2) OMB at: Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Attention: Desk Officer for EPA, 725 17th Street NW., Washington, DC 20503. SUMMARY: srobinson on DSK4SPTVN1PROD with NOTICES FOR FURTHER INFORMATION CONTACT: Learia Williams, Monitoring, Assistance, and Media Programs Division, Office of Compliance, Mail Code 2227A, Environmental Protection Agency, 1200 Pennsylvania Avenue NW., Washington, DC 20460; telephone number: (202) 564–4113; fax number: (202) 564–0050; email address: williams.learia@epa.gov. EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On May 9, 2011 (76 FR 26900), EPA SUPPLEMENTARY INFORMATION: VerDate Mar<15>2010 17:20 May 21, 2012 Jkt 226001 sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received no comments. Any additional comments on this ICR should be submitted to EPA and OMB within 30 days of this notice. EPA has established a public docket for this ICR under docket ID number EPA–HQ–OECA–2011–0254, which is available for public viewing online at https://www.regulations.gov, or in person viewing at the Enforcement and Compliance Docket in the EPA Docket Center (EPA/DC), EPA West, Room 3334, 1301 Constitution Avenue NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Reading Room is (202) 566–1744, and the telephone number for the Enforcement and Compliance Docket is (202) 566–1752. Use EPA’s electronic docket and comment system at https:// www.regulations.gov to submit or view public comments, access the index listing of the contents of the docket, and to access those documents in the docket that are available electronically. Once in the system, select ‘‘docket search,’’ then key in the docket ID number identified above. Please note that EPA’s policy is that public comments, whether submitted either electronically or in paper, will be made available for public viewing at https://www.regulations.gov, as EPA receives them and without change, unless the comment contains copyrighted material, Confidential Business Information (CBI), or other information whose public disclosure is restricted by statute. For further information about the electronic docket, go to www.regulations.gov. Title: NESHAP for Miscellaneous Metal Parts and Products (Renewal). ICR Numbers: EPA ICR Number 2056.04, OMB Control Number 2060– 0486. ICR Status: This ICR is scheduled to expire on July 31, 2012. Under OMB regulations, the Agency may continue to conduct or sponsor the collection of information while this submission is pending at OMB. Abstract: The affected entities are subject to the General Provisions of the NESHAP at 40 CFR part 63, subpart A, and any changes, or additions to the Provisions specified at 40 CFR part 63, subpart MMMM. Owners or operators of the affected facilities must submit initial notification, performance tests, and periodic reports and results. Owners or operators are also required to maintain records of the occurrence and duration of any startup, shutdown, or PO 00000 Frm 00019 Fmt 4703 Sfmt 4703 malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative. Reports, at a minimum, are required semiannually. All reports are sent to the delegated state or local authority. In the event that there is no such delegated authority, the reports are sent directly to the EPA regional office. This information is being collected to assure compliance with 40 CFR part 63, subpart MMMM, as authorized in section 112 and 114(a) of the Clean Air Act. The required information consists of emissions data and other information that have been determined to be private. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB Control Number. The OMB Control Numbers for the EPA regulations are listed in 40 CFR part 9 and 48 CFR chapter 15, and are identified on the form and/or instrument, if applicable. Burden Statement: The annual public reporting and recordkeeping burden for this collection of information is estimated to average 226 hours per response. ‘‘Burden’’ means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements which have subsequently changed; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and either transmit or otherwise disclose the information. Respondents/Affected Entities: Owners or operators of miscellaneous metal parts and products. Estimated Number of Respondents: 4,992. Frequency of Response: Initially, occasionally, and semiannually. Estimated Total Annual Hour Burden: 2,254,948. Estimated Total Annual Cost: $217,117,118, which includes $216,067,118 in labor costs, no capital/ startup costs, and $1,050,000 in operation and maintenance (O&M) costs. Changes in the Estimates: There is an adjustment decrease in the labor hours for the respondent as compared to the E:\FR\FM\22MYN1.SGM 22MYN1

Agencies

[Federal Register Volume 77, Number 99 (Tuesday, May 22, 2012)]
[Notices]
[Pages 30274-30278]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-12342]


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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. PL12-1-000]


 The Commission's Role Regarding the Environmental Protection 
Agency's Mercury and Air Toxics Standards; Policy Statement on the 
Commission's Role Regarding the Environmental Protection Agency's 
Mercury and Air Toxics Standards

Before Commissioners: Jon Wellinghoff, Chairman; Philip D. Moeller, 
John R. Norris, and Cheryl A. LaFleur.

    1. The Commission issues this Policy Statement to explain how it 
will provide advice to the Environmental Protection Agency (EPA) for it 
to rule on requests for Administrative Orders (AO) to operate in 
noncompliance with EPA's Mercury and Air Toxics Standards (MATS).\1\ As 
noted below, this Policy Statement does not represent the entirety of 
the Commission's efforts to monitor the impact of EPA regulations 
generally on bulk-power system reliability.
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    \1\ National Emission Standards for Hazardous Air Pollutants 
from Coal- and Oil-fired Electric Utility Steam Generating Units and 
Standards of Performance for Fossil-Fuel-Fired Electric Utility, 
Industrial-Commercial-Institutional, and Small Industrial-
Commercial-Institutional Steam Generating Units, https://www.gpo.gov/fdsys/pkg/FR-2012-02-16/pdf/2012-806.pdf.
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I. Introduction

    2. On December 21, 2011, the EPA released the MATS final rule 
pursuant to its authority under Section 112 of the Clean Air Act 
(CAA).\2\ The MATS final rule limits mercury, acid gases and other 
toxic emissions from power plants. Pursuant to Section 112(i)(3)(A) of 
the CAA, affected sources are required to comply within three years of 
the MATS effective date. Pursuant to CAA Section 112(i)(3)(B), some 
affected sources are eligible for a one-year extension (i.e. for a 
total of four years).\3\
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    \2\ 42 U.S.C. 7412(i)(3)(A) (2006).
    \3\ See id. Sec.  7412(i)(3)(B).
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    3. The EPA's Office of Enforcement and Compliance Assurance 
released a policy memorandum (EPA Policy Memorandum) dated December 16, 
2011 describing its intended approach regarding the use of CAA Section 
113(a) AOs with respect to sources that must operate in noncompliance 
with the MATS for up to a year to address a specific and documented 
reliability concern (i.e. for a total of five years).\4\
---------------------------------------------------------------------------

    \4\ The Environmental Protection Agency's Enforcement Response 
Policy For Use Of Clean Air Act Section 113(a) Administrative Orders 
In Relation To Electric Reliability And The Mercury and Air Toxics 
Standard (Dec. 16, 2011), https://www.epa.gov/compliance/resources/policies/civil/erp/mats-erp.pdf.
---------------------------------------------------------------------------

    4. On January 30, 2012, Commission staff issued a White Paper 
seeking comment concerning staff's position on how the Commission 
should advise the EPA on requests for extension of time to comply with 
EPA's MATS. The Commission has considered all comments received in the 
formulation of this Policy Statement, which is limited in scope to how 
the Commission will handle an AO filing under CAA Section 113(a) for 
noncompliance with the MATS. This Policy Statement does not address the 
entirety of the Commission's efforts to monitor the impact of EPA 
regulations generally on bulk-power system reliability.

II. Background

A. Compliance With EPA's Mercury and Air Toxics Standards

    5. Under Section 112(i)(3) of the CAA, affected sources must be 
compliant with MATS within three years, with an extension of up to one 
year available in certain cases.\5\ In addition to the up to four-year 
compliance period contemplated in Section 112(i)(3), the EPA Policy 
Memorandum describes a process by which certain affected sources can 
obtain an AO to operate in noncompliance for an additional year 
pursuant to Section 113(a) of the CAA. Specifically, the EPA Policy 
Memorandum contemplates that the EPA will receive AO requests: (1) 
Concerning electric generating units (EGUs) that may affect reliability 
due to deactivation; and (2) concerning EGUs

[[Page 30275]]

that may affect reliability due to delays related to the installation 
of controls.\6\
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    \5\ The EPA Policy Memorandum refers to the date by which 
affected sources must comply under Section 112(i)(3) of the CAA 
(which includes the possible one-year extension under Section 
112(i)(3)(B)) as the ``MATS Compliance Date.''
    \6\ EPA Policy Memorandum at 4.
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    6. The EPA Policy Memorandum states that an AO cannot be issued 
under Section 113(a) prior to the MATS Compliance Date in Section 
112(i)(3).\7\ However, provided an owner/operator has timely submitted 
a complete request and provided appropriate cooperation, the EPA 
expects to give an owner/operator ``as much advance written notice as 
practicable of the [EPA's] plans with regard to such an AO.'' \8\
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    \7\ Id. at 5.
    \8\ Id.
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    7. The EPA Policy Memorandum states that in evaluating a request 
for an AO, the EPA will seek advice, on a case-by-case basis, from the 
Commission and/or other entities with relevant reliability 
expertise.\9\ However, the EPA's issuance of an AO is not conditioned 
upon the approval or concurrence of the Commission or any other entity.
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    \9\ The EPA Policy Memorandum states that ``in light of the 
complexity of the electric system and the local nature of many 
reliability issues, the EPA will, for purposes of using its Section 
113(a) AO authority in this context, rely for identification and/or 
analysis of reliability risks upon the advice and counsel of 
reliability experts, including, but not limited to, the Federal 
Energy Regulatory Commission (`FERC'), Regional Transmission 
Operators (`RTOs'), Independent System Operators (`ISOs') and other 
Planning Authorities as identified herein, the North American 
Electric Reliability Corporation (`NERC') and affiliated regional 
entities, and state public service commissions (`PSCs') and public 
utility commissions (`PUCs'). The EPA will work with these and other 
organizations, as appropriate, to ensure that any claims of 
reliability risks are properly characterized and evaluated.'' EPA 
Policy Memorandum at 2.
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1. General Requirements for AO Requests
    8. The EPA Policy Memorandum provides that within one year after 
the MATS effective date, an owner/operator should submit written notice 
of its compliance plans (Notice of Compliance Plans) with regard to 
each EGU it owns or operates to the planning authority for the area in 
which the relevant EGU is located. According to the EPA, the Notice of 
Compliance Plans should identify: (1) The units the owner/operator 
plans to deactivate and the anticipated dates of deactivation; and (2) 
the units for which it intends to install pollution control equipment 
or otherwise retrofit and the anticipated schedule for completion of 
that work.
    9. The EPA Policy Memorandum states that an owner/operator should, 
generally no less than 180 days prior to the MATS Compliance Date,\10\ 
submit a written request to the EPA \11\ for an enforceable compliance 
schedule in an AO for the unit. An owner/operator should submit the 
following information for all AO requests:
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    \10\ The EPA Policy Memorandum also has provisions for an owner/
operator to, in certain circumstances, provide less notice to the 
EPA and the Commission.
    \11\ This request is to be submitted electronically to the 
Director of the Air Enforcement Division in the EPA's Office of 
Enforcement and Compliance Assurance and the Regional Administrator 
of the EPA region in which the EGU is located, with a copy to the 
Commission. At the same time, an owner/operator should provide 
notice that it is seeking an AO to: (1) The planning authority, (2) 
any state public utility commissions or public service commissions 
with regulatory jurisdiction with regard to the relevant EGU, and 
(3) any state, tribal or local environmental agency with permitting 
authority under Titles I and V of the CAA, and any tribal 
environmental agency that does not have such authority, with 
jurisdiction over the area in which the EGU is located 
(collectively, ``AO Notice Recipients'').
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    (1) Copies of the Notice of Compliance Plans provided to the 
planning authority or an explanation why it was not practicable to have 
provided such notice and a demonstration that such notice was provided 
as soon as it was practicable;
    (2) Written analysis of the reliability risk if the EGU were not in 
operation, which demonstrates that operation of the unit after the MATS 
Compliance Date is critical to maintaining electric reliability, and 
that failure to operate the unit would: (a) Result in the violation of 
at least one of the reliability criteria required to be filed with the 
Commission, and, in the case of the Electric Reliability Council of 
Texas, with the Texas Public Utility Commission; or (b) cause reserves 
to fall below the required system reserve margin;
    (3) Written concurrence with the reliability risk analysis, or a 
separate and equivalent analysis, by the planning authority for the 
area in which the relevant EGU(s) are located, or, in the alternative, 
a written explanation of why such concurrence or separate and 
equivalent analysis cannot be provided, and, where practicable, any 
related system wide analysis by such entity;
    (4) Copies of any written comments from third parties directed to, 
and received by, the owner/operator in favor of, or opposed to, 
operation of the unit after the MATS Compliance Date;
    (5) A plan to achieve compliance with the MATS no later than one 
year after the MATS Compliance Date, and, where practicable, a written 
demonstration of the plan to resolve the underlying reliability problem 
and the steps and timeframe for implementing it, which demonstrates 
that such resolution cannot be effected on or before the MATS 
Compliance Date; and
    (6) Identification of the level of operation of the EGU that is 
required to avoid the documented reliability risk and, consistent with 
that level, a proposal for operational limits and/or work practices to 
minimize or mitigate any hazardous air pollutant emissions to the 
extent practicable during any operation not in full compliance with the 
MATS.\12\
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    \12\ EPA Policy Memorandum at 6-7.
---------------------------------------------------------------------------

2. Specific Requirements for AO Requests
    10. As stated above, the EPA Policy Memorandum states that the 
owner/operator of an EGU that wants to obtain an AO must, no less than 
180 days prior to the MATS Compliance Date, submit electronically a 
written request for an enforceable compliance schedule. To request an 
AO for any EGU that is required to run for reliability purposes that, 
due to factors beyond the control of the owner/operator, have delays in 
installation of controls or need to operate because another EGU has had 
such a delay, the EPA Policy Memorandum states that an owner/operator 
should: (1) Within a reasonable time of learning of a delay that it 
believes may result in an EGU being unable to comply by the MATS 
Compliance Date, provide to the planning authority for the area in 
which the relevant EGU(s) are located, written notice of the EGU(s) 
impacted by the delay, the cause of the delay, an estimate of the 
length of time of the delay, and the timeframe during which the owner/
operator contemplates operation in non-compliance with the MATS; (2) 
within a reasonable time of learning that it is critical to reliability 
to operate the identified EGU(s) in non-compliance with the MATS after 
the MATS Compliance Date, submit electronically to the AO Request 
Recipients a written request for an enforceable compliance schedule in 
an AO for the EGU(s), which includes information responsive to as many 
of the general requirements discussed above as it is possible to 
provide at that time; and (3) at the same time the owner/operator 
submits its request for an AO, provide notice that it is seeking such 
an AO to the AO Notice Recipients.

B. Energy Policy Act of 2005 and Mandatory Reliability Standards

    11. Section 215 of the Federal Power Act (FPA) requires a 
Commission-certified Electric Reliability Organization (ERO) to develop 
mandatory and enforceable Reliability Standards, which provide for the 
reliable operation of the Bulk-Power System, subject to Commission 
review

[[Page 30276]]

and approval.\13\ On February 3, 2006, the Commission issued Order No. 
672 to implement the requirements of section 215 of the FPA governing 
electric reliability.\14\
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    \13\ 16 U.S.C. 824o(d)(2).
    \14\ Rules Concerning Certification of the Electric Reliability 
Organization; and Procedures for the Establishment, Approval, and 
Enforcement of Electric Reliability Standards, Order No. 672, FERC 
Stats. & Regs. ] 31,204, order on reh'g, Order No. 672-A, FERC 
Stats. & Regs. ] 31,212 (2006).
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III. Commission Policy for Advice to the EPA Under the EPA's Policy 
Memorandum

    12. The EPA Policy Memorandum indicates that the EPA intends to 
seek advice, as necessary and on a case-by-case basis from the 
Commission, among others, as the EPA decides whether it will grant an 
AO to an owner/operator. The EPA Policy Memorandum makes clear that the 
EPA decision as to whether to grant an AO to an owner/operator is 
solely the decision of the EPA and that the concurrence or approval of 
any entity is not a condition for approval or denial of an AO 
request.\15\ The Commission believes that it is important to provide as 
much guidance to industry as possible as to how the Commission intends 
to provide advice to the EPA on any AO request. In developing this 
process, the Commission considered how to provide a fair and 
transparent process for communicating the Commission's expertise on 
reliability issues, while respecting that the EPA will seek the 
Commission's advice in a timely manner so that EPA can decide whether 
to grant certain AOs.
---------------------------------------------------------------------------

    \15\ EPA Policy Memorandum at 7.
---------------------------------------------------------------------------

A. Commission Process for Advising the EPA Under the EPA's Policy 
Memorandum

Submittal of Information to the Commission
    13. The EPA Policy Memorandum explains that when an owner/operator 
submits an AO request: (1) for EGUs that may affect reliability due to 
deactivation; and (2) for EGUs that may affect reliability due to 
delays related to the installation of controls, the owner/operator must 
provide a copy of the request to the Commission. This AO request must 
include an owner/operator's ``written analysis of the reliability risk 
if the unit were not in operation, which demonstrates that operation of 
the unit after the MATS Compliance Date is critical to maintaining 
electric reliability, and that failure to operate the unit would * * * 
result in the violation of at least one of the reliability criteria 
required to be filed with [the Commission] * * *.'' \16\ In addition, 
the AO request will include the Planning Authority's written 
concurrence with the owner/operator's analysis, or a written 
explanation of why the Planning Authority's concurrence cannot be 
provided.
---------------------------------------------------------------------------

    \16\ Id.
---------------------------------------------------------------------------

    14. As an initial matter, each AO request should be filed with the 
Commission. The Commission will treat any AO request filed with the 
Commission as an informational filing. The Commission will assign each 
informational filing a separate Administrative Docket (AD) number. The 
Commission's Office of Electric Reliability will be designated as the 
lead office tasked with processing an owner/operator's informational 
filing.
    15. Each informational filing should include the same information 
that the owner/operator submitted to the EPA pursuant to the EPA Policy 
Memorandum. While the Commission does not propose mandating that 
Planning Authorities undertake specific types of analyses, the 
Commission identifies below certain types of information that are 
already available today and that the Commission commonly reviews when 
examining potential violations of Reliability Standards.\17\ Including 
this information as part of the materials an owner/operator submits to 
the EPA, and therefore to the Commission, would aid in the Commission's 
review of the informational filing. It is essential that the Commission 
receive enough information to review the claims made by a requesting 
owner/operator so that the Commission can provide timely comments to 
the EPA. These types of information include, but are not limited to, 
system planning and operations studies, system restoration studies or 
plans, operating procedures, and mitigation plans required by the 
Reliability Standards.\18\ By suggesting what information would aid the 
Commission in its review, the Commission is not requiring any specific 
analysis be done or indicating that this information must be submitted 
or what the EPA should consider, but rather what the Commission would 
find informative when reviewing potential violations of Reliability 
Standards.\19\
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    \17\ The Commission does not believe it is necessary to identify 
specific factors that each planning authority must take into account 
in assessing system reliability outside of the NERC planning 
standards. The existing processes used by the Planning Authorities 
to conduct reliability assessments, which are based on the NERC 
planning standards and performed under NERC's oversight, appear to 
be sufficient. We encourage NERC to continue to work closely with 
the Planning Authorities to ensure that these existing processes 
adequately assess system reliability in the specific circumstances 
presented by compliance with EPA regulations. In addition, 
Commission staff is available to Planning Authorities and 
participants in these processes for consultation on these matters. 
Also, we expect Commission staff to monitor these processes through 
periodic outreach to Planning Authorities.
    \18\ The Commission reviews power flow, dynamic, or other 
simulation results that support the Reliability Standards as well as 
the modeling assumptions used in these simulations. Modeling 
assumptions may include factors such as the base case used, demand 
levels, modifications made to the base case, system transfers 
modeled, scheduled outages modeled, and contingencies tested.
    \19\ We understand that these types of information are readily 
available today so that their submission should not impose a burden 
on the owner/operator.
---------------------------------------------------------------------------

    16. The Commission generally anticipates it would not have to seek 
additional information. The Commission is concerned that seeking 
additional information from an owner/operator of an EGU could delay or 
prevent the Commission from issuing timely comments to the EPA.\20\
---------------------------------------------------------------------------

    \20\ However, the Commission reserves the right to seek 
additional information regarding a filing when necessary.
---------------------------------------------------------------------------

B. Scope and Standard of Review for Informational Filings

    17. EPA states that the analysis provided in an AO request should 
demonstrate ``that operation of the unit after the MATS Compliance Date 
is critical to maintaining electric reliability, and that failure to 
operate the unit would: (a) result in the violation of at least one of 
the reliability criteria required to be filed with the Commission, and, 
in the case of the Electric Reliability Council of Texas, with the 
Texas Public Utility Commission; or (b) cause reserves to fall below 
the required system reserve margin.'' Commission review of an 
informational filing will be conducted pursuant to section 307(a) of 
the FPA, the Commission's general investigative authority. The review 
will examine whether, based on the circumstances presented, there might 
be a violation of a Commission-approved Reliability Standard.\21\ In 
addition, the Commission's comments to the EPA could also identify 
issues, pursuant to our other areas of authority, raised by the AO 
request for the EPA to consider as critical to reliability.\22\ 
Further, an

[[Page 30277]]

EGU's continued operation may have reliability impacts beyond those 
implicated by the Commission's jurisdiction. The EPA should look to 
NERC and state commissions, among the other entities it has enumerated, 
for guidance in those areas.\23\
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    \21\ A statement by the Commission indicating that circumstances 
presented ``might'' result in the violation of a Reliability 
Standard would not constitute a final determination under section 
215 of the FPA that a Reliability Standard has or will be violated. 
That is, the Commission comments will reflect our preliminary view 
based on information presented about a possible hypothetical 
circumstance in the future, not a final agency action triggering 
civil penalties or other enforcement actions.
    \22\ For example, the Commission may determine that the 
potential closure of an EGU could trigger the Commission's 
jurisdiction outside of section 215 of the FPA. See e.g., Exelon 
Generation Co., LLC, 132 FERC ] 61,219 (2010).
    \23\ Commission staff will also be available to communicate with 
the EPA on any reliability-related issues to aid the EPA in its 
consideration of these issues.
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    18. The Commission's jurisdiction under section 215 is over the 
ERO, Regional Entities, and all users, owners and operators of the 
bulk-power system ``for purposes of approving Reliability Standards 
established under [section 215] and enforcing compliance with [section 
215].'' \24\ Further, section 215 states that ``this section does not 
authorize the ERO or the Commission to order the construction of 
additional generation or transmission capacity or to set and enforce 
compliance with standards for adequacy or safety of electric facilities 
or services.'' \25\ In addition, section 215 specifically preserves 
authority of states over safety, resource adequacy, and even 
reliability as long as the latter does not conflict with the 
Commission's Reliability Standards.
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    \24\ 16 U.S.C. 824o(b).
    \25\ Id. Sec.  824o(i)(2).
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    19. While our comments to the EPA are largely limited to whether 
the issue in question may result in the violation of a Reliability 
Standard, we recognize that the EPA is not so limited in what it may 
consider in reviewing a request for an AO. Indeed, the EPA Policy 
Memorandum indicates that the EPA may also seek advice and counsel of 
reliability experts, including, state public service commissions and 
public utility commissions, RTOs and ISOs, Planning Authorities, NERC 
and affiliated regional entities--and we encourage them to do so. 
Nothing in this Policy Statement precludes NERC, state agencies or 
others from providing the EPA with information regarding resource 
adequacy and other local reliability concerns that are not addressed in 
the Commission's comments to the EPA.
    20. The Commission will review the Planning Authority's analysis 
included in each informational filing to ensure that it was reasonable 
and sufficiently supported by the information supplied, recognizing the 
Planning Authority's knowledge of, and expertise on, local and regional 
conditions. The Commission would focus on whether the Planning 
Authority's reliability analysis has identified and supported, in a 
detailed and reasoned fashion, whether there might be a violation of a 
Commission-approved Reliability Standard.
    21. The Commission will advise the EPA, as contemplated by the EPA 
Policy Memorandum, by submitting written Commission comments to the EPA 
based on the Commission's review of the information provided in the 
informational filing.\26\ The Commission's comments would provide 
advice to the EPA on whether, based on the Commission's review of the 
informational filing, there might be a violation of a Commission-
approved Reliability Standard. As noted above, the Commission's 
comments may also identify issues within its jurisdiction other than a 
potential violation of a Commission-approved Reliability Standard. The 
Commission comments will not address the appropriateness of granting or 
denying an AO.
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    \26\ The Commission will vote on the Commission comments before 
submission to the EPA. Commission comments submitted to the EPA will 
be publicly posted on the Commission's eLibrary system under the 
applicable AD docket number. Differing views by any Commissioner 
will also be submitted to the EPA in writing and will be publicly 
posted on the Commission's eLibrary system.
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C. Intervention and Other Procedures

    The Commission's process will not provide for entities to intervene 
in the AD dockets.\27\ The EPA Policy Memorandum generally anticipates 
that an AO request will be filed 180 days prior to the MATS Compliance 
Date and the Commission is concerned that allowing interventions may 
inhibit the Commission's ability to timely provide advice to the EPA. 
In addition, interventions are not available generally in a matter 
under investigation pursuant to Section 307(a) of the FPA. Yet the lack 
of a formal intervention procedure does not preclude an interested 
entity from being heard. The EPA Policy Memorandum requires an owner/
operator requesting an AO to submit ``[c]opies of any written comments 
from third parties directed to, and received by, the owner/operator in 
favor of, or opposed to, operation of the unit after the MATS 
compliance date.'' \28\ These materials should also be included as part 
of the informational filing an owner/operator submits to the Commission 
under the requirements in the EPA Policy Memorandum.\29\ While the 
Commission is not imposing any additional requirements, we anticipate 
that owners/operators will, consistent with the EPA Policy Memorandum, 
provide third parties with an opportunity to offer ``written comments * 
* * in favor of, or opposed to, operation of the unit after the MATS 
compliance date'' before they submit their AO request.
---------------------------------------------------------------------------

    \27\ While the Commission will not seek comments on these 
informational filings, if comments are received by the Commission, 
these would be placed in the associated AD docket. Because these 
would be informational dockets, while the Commission may consider 
these comments, it would not be required to do so. Due to the nature 
of the Commission's comments as non-final agency action and the 
limited time for the Commission to act, the Commission does not 
anticipate responding to any comments that may be submitted in an AD 
docket.
    \28\ EPA Policy Memorandum at 7.
    \29\ Id. at 5, 6.
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IV. Conclusion

    22. This Policy Statement explains how the Commission plans to 
advise the EPA under the EPA's Policy Memorandum. The Commission 
believes the process appropriately takes into account the need for 
timeliness, fairness, and transparency, while respecting the 
Commission's jurisdiction over electric reliability. As stated in the 
EPA Policy Memorandum, whether or to what extent the EPA considers or 
relies on the Commission's comments, and whether to grant an AO to an 
owner/operator, will rest entirely with the EPA.
    23. Additionally, we emphasize that this Policy Statement does not 
represent the entirety of the Commission's efforts to monitor the 
impact of EPA regulations generally on bulk-power system reliability. 
For example, the Commission intends to continue addressing these issues 
with state commissions in a regular public forum, the National 
Association of Regulatory Utility Commissioners/FERC Forum on 
Reliability and the Environment. The Commission and its staff will also 
continue to review plans, reports and other information generated by 
the Planning Authorities, industry and other stakeholders regarding the 
impact of compliance with EPA regulations. To the extent additional 
analysis or evidence would aid the Commission's efforts to monitor 
these issues, we will consider holding additional technical conferences 
or workshops.\30\
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    \30\ The Commission held a technical conference on these issues 
on November 30, 2011, in Docket No. AD12-1-000.
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    Finally, the Commission will monitor and promptly review proposals 
from regulated entities that may seek to modify their tariffs in order 
to reliably and efficiently comply with EPA regulations.

    By the Commission.

[[Page 30278]]

    Issued: May 17, 2012.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. 2012-12342 Filed 5-21-12; 8:45 am]
BILLING CODE 6717-01-P

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