Draft of Utility Air Toxics Proposed Rule Expressed Concerns on Electricity Reliability

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By Jessica Coomes

A draft of the proposed rule to reduce air toxics from power plants acknowledged concerns about the regulation's effect on electricity reliability, but that language was deleted before publication, according to a copy of the proposal.

The language appeared in the version of the utility MACT rule that the Environmental Protection Agency sent to the White House Office of Management and Budget for interagency review Feb. 19, but it was deleted when EPA signed and issued the proposed rule in March (76 Fed. Reg. 24,976).

The utility MACT rule would require power plants to use maximum achievable control technology to cut emissions of mercury and other air pollutants.

The draft rule said EPA “is aware that concerns have been expressed by some, even in advance of this proposed rule, that this regulation may detrimentally impact the reliability of the electric grid. The Agency recognizes the critical need for reliable operation of the grid and the special concerns that may be presented if sources integral to reliable operation are not able to comply within the statutorily prescribed compliance timeframe.”

A growing number of people and groups, including Sens. Lisa Murkowski (R-Alaska) and James Inhofe (R-Okla.), the U.S. Chamber of Commerce, state utility regulators, and unions, are concerned the MACT standard for power plants will affect electricity reliability (220 DEN A-2, 11/15/11).

Individual Generating Units Called Key

The agency also said it understands that individual electric generating units can be the key to ensuring electric reliability, especially in “load constrained areas.”

Therefore, EPA wrote, it understands concerns that if a utility cannot meet the three- or four-year compliance deadline, “localized reliability problems” could occur.

The draft proposed rule went on to say that the agency takes those concerns seriously but that the Clean Air Act gives EPA the “tools to ensure that any such sources do come into compliance without unduly impacting electric reliability.”

EPA did not respond to requests for comment Nov. 14 and 15 on the draft proposed rule.

Industry Group ‘Alarmed.'

The rule, which targets air toxics including mercury, would set national emissions standards for hazardous air pollutants.

The final rule is under OMB interagency review and is expected to be signed by Dec. 16 (217 DEN A-3, 11/9/11).

Scott Segal, director of the Electric Reliability Coordinating Council, said in a Nov. 14 letter to Cass R. Sunstein, administrator of the OMB Office of Information and Regulatory Affairs, that the organization was “alarmed” to see the language.

Segal wrote that the draft proposal “contained pertinent questions regarding reliability.” He said, “There is nothing to suggest any changes to the rule itself had been made to justify this administrative sleight of hand.”

The Electric Reliability Coordinating Council, which includes power companies, has raised concerns that the utility MACT rule would put electricity reliability in jeopardy.


The Feb. 19 draft proposed utility MACT rule is available at http://www.regulations.gov in Docket No. EPA-HQ-OAR-2009-0234 and at http://op.bna.com/fcr.nsf/r?Open=jcos-8nmt25 .

The proposed rule, as published in the Federal Register, is available at http://www.gpo.gov/fdsys/pkg/FR-2011-05-03/pdf/2011-7237.pdf#page=1 .

The Nov. 14 letter from the Electric Reliability Coordinating Council to OMB is available at http://tinyurl.com/7or87ad .