The staff of the Federal Energy Regulatory Commission (“FERC”) recently requested comment on a white paper outlining a “fair, timely and transparent process” by which FERC could advise the Environmental Protection Agency (“EPA”) on requests for extensions of time to comply with EPA’s Mercury and Air Toxics Standards (the “MATS”). Under the Clean Air Act, affected power plants generally have three years to comply with the MATS, but the Act allows for extensions in certain cases. In addition, an EPA staff policy memorandum would allow up to five years to comply in cases involving specific and documented reliability concerns.

Under the process set forth in FERC staff’s white paper, an electric generator requesting an extension under EPA’s policy memorandum would be required to file the same information with FERC. FERC staff, led by its Office of Electric Reliability, would review the request to determine whether there might be a violation of a FERC-approved reliability standard. FERC would then submit written comments on each request to EPA. Although there would be no opportunity to intervene in the FERC review process, FERC staff would consider, when appropriate, comments submitted by interested persons. FERC staff requested comments on the proposed process, including, in particular, whether FERC should review issues arising outside of a potential violation of a reliability standard, and whether FERC should accord some level of deference to the reliability findings of the relevant planning authority.