Bids for emergency grid order are opened for public comment

Source: Sam Mintz, E&E News reporter • Posted: Thursday, April 12, 2018

The Department of Energy has created an informal public comment process for a proposed emergency order to keep financially stressed coal-fired and nuclear power plants running in the eastern U.S.

At issue is a request from FirstEnergy Solutions Corp. for emergency orders under Section 202(c) of the Federal Power Act, which empowers DOE to order temporary connections for the generation, delivery, interchange or transmission of electricity.

The embattled Ohio utility has filed for bankruptcy and announced it will close three nuclear plants, which it says would trigger a grid resilience emergency — a claim met with skepticism from federal regulators and the regional grid operator.

On a DOE webpage detailing its Section 202(c) authority, the department has added an email address — AskOE@hq.doe.gov — for public comments.

“Establishment of this email address does not establish a ‘docket,’ and those submitting correspondence do not constitute parties or intervenors to any proceeding,” DOE says.

“Further, submission of correspondence to the Department does not in any way limit or prevent the ability of the Secretary to act on any application, or pursuant to section 202(c) without application, in any way and at any time as he deems appropriate,” it says.

A DOE spokeswoman said that the Office of Electricity added the email address to collect correspondence on 202c matters in a central location.

“This address was created in an effort to make it easier for external stakeholders and all current and future applicants to correspond with the department. The email address is not specific to a particular application and is planned to be used going forward,” said Shaylyn Hynes.

Joel Eisen, a University of Richmond energy law professor, noted the new public comment process does not constitute a “notice-and-comment” period as required for some actions under the Administrative Procedure Act.

DOE can act at any time and has no formal responsibility to consider or respond to the comments, he wroteon Twitter.

The law says DOE can act without issuing a notice or report or holding a hearing.

Opponents of FirstEnergy have promised to swiftly appeal the decision if DOE issues an order granting FirstEnergy’s request.

The authority has in the past typically been used for immediate emergencies such as the California energy crisis, a series of large-scale blackouts in 2000 and 2001, or to prevent individual units from closing early in the face of new environmental rules, as happened twice last year with plants that were needed for grid reliability but were unable to meet EPA’s new Mercury and Air Toxics Standards.