Oakland, CA —

In a decision that could set a precedent for proposed polluting industries across the country, the U.S. Environmental Protection Agency has determined that a proposed gas-fired power plant in California would not be subject to current pollution regulations because the EPA failed to enforce those laws in a timely manner.

The planned Avenal Power Plant, to be built by Texas-based Macquarie Energy, would be located in California’s San Joaquin Valley, near the rural communities of Avenal and Kettleman City. The plant would burn natural gas to generate 600 megawatts of electricity. According to the EPA, the San Joaquin Valley has some of the highest levels of air pollution in the country.

The EPA received completed plans for the plant in March 2008 but did not hold public hearings on the proposed project until October 2009. In the meantime, in 2009, the agency adopted new national standards to address harmful pollution caused by nitrogen dioxide and sulfur dioxide emissions. EPA also adopted new rules regulating power plant emissions of carbon dioxide and other greenhouse gases. Because the construction plans for the Avenal Plant did not meet these new pollution regulations, EPA delayed the final permit further.

In an unprecedented administrative decision reversing previous EPA policy, Gina McCarthy, EPA’s Assistant Administrator for Air and Radiation in Washington, D.C., announced last month that the plant would not be required to meet these new air pollution requirements. Ms. McCarthy blamed her own agency for “the factors that have contributed to the extended delay in this case.” The announcement overruled plans by EPA’s regional office in San Francisco, which normally has jurisdiction in issuing permits for projects in California.

“This decision is bad not only for the residents of Avenal and Kettleman City, who will be breathing the emissions from this plant; it’s also a bad precedent for the rest of the country,” said Paul Cort, an attorney for the public interest law firm Earthjustice, which filed comments today opposing EPA’s proposed exemption for the Avenal plant. “It would allow similar projects to be built even when we know that they will result in harmful pollution and even when they admit that they will not have best available pollution controls installed.”

EPA estimates that ten to twenty other proposed major industrial projects with current applications before the EPA could be “grandfathered in” under this new EPA policy. Earthjustice attorney Cort worries that the precedent could also roll back hard-won pollution controls at the proposed Sunflower coal-burning plant in Kansas.

“Across the country, people have demanded a reduction in air pollution and greenhouse gases. They should be distressed by EPA’s proposed decision here to cave to pressure by industrial polluters seeking to undo that progress,” Cort said.

The EPA is holding a final public hearing on the plant permit on Tuesday, April 12 at 7 p.m. at the Avenal Theater, 233 East King Street, in Avenal, California.

Read the EPA supplemental statement for the basis of the permit decision.