Oakland, CA —

Environmental groups are challenging a recent decision by the U.S. Environmental Protection Agency to exempt a proposed power plant in central California from pollution laws that protect clean air and human health. The EPA announced May 27 that the Avenal Power Plant would be “grandfathered” in under older, outdated and less protective pollution controls because, according to agency officials, EPA took too long to process the permit application.

Specifically, EPA will not require the new power plant to demonstrate that it will not cause unsafe levels of nitrogen dioxide and sulfur dioxide pollution or that it has installed the best available controls for greenhouse gases.

The challenge was filed with EPA’s Environmental Appeals Board on Monday by Earthjustice, the public interest law firm representing the Sierra Club and the Center for Biological Diversity. The challenge will be considered by a panel of three administrative law judges appointed by the EPA administrator. Under agency regulations, the board has final say in EPA permitting decisions.

“EPA political appointees chose to ignore the plain requirements of the Clean Air Act,” said Paul Cort, an attorney for Earthjustice. “Our hope is that more neutral reviewers at EPA will reject this attempt to ignore these directives from Congress.”

The proposed Avenal Power Plant, to be built by Texas-based Macquarie Energy, would burn natural gas to generate 600 megawatts of electricity. The facility would be built near the rural communities of Avenal and Kettleman City in California’s San Joaquin Valley, which already has some of the most polluted air in the country. Local residents are particularly burdened by high levels of diesel traffic fumes, toxic pesticide spraying and proximity to the largest toxic waste dump in the state.

“EPA’s decision to allow a massive new facility to be built in an area already disproportionately impacted by pollution without meeting these standards is simply inexcusable,” said Earthjustice attorney George Torgun. “The law is clear that new power plants must achieve air pollution control requirements that exist today, not those from the past that EPA has already found to be insufficient to protect public health.”

The EPA regional office in San Francisco received completed plans for the plant in March 2008 but waited for required information from other agencies before continuing to process the permits. In the meantime, EPA adopted new national standards that protect public health against harmful nitrogen dioxide and sulfur dioxide pollution and new rules to curb greenhouse gas pollution. Because the construction plans for the Avenal plant did not meet these new pollution regulations, the EPA regional office asked the facility to curb its pollution so it could meet current permitting standards.

Then, in an unprecedented administrative action reversing previous EPA policy, Gina McCarthy, EPA’s Assistant Administrator for Air and Radiation in Washington, D.C., announced that the plant would receive a permit even though it will pollute far more than current law allows. Officials at EPA headquarters then removed the regional office’s authority over this permit, even though that office normally has jurisdiction over California facilities.

“EPA has been under assault by industrial polluters that want to continue to foul our air and worsen global climate change. Rather than fight back, EPA has sounded a retreat by delaying critically needed action or, as in this case, letting polluters off the hook entirely,” said Vera Pardee, an attorney with the Center for Biological Diversity. “We all depend on clean, healthy air. It’s vital that EPA stand fast in enforcing the environmental laws that have served this nation so well for 40 years.”

In their filing, environmental advocates warn that EPA is considering extending the “grandfather” policy to other polluting facilities across the country. EPA estimates that 10 to 20 other proposed major industrial projects with current permit applications before the agency could be “grandfathered” under this new policy.

“The Avenal decision would be devastating not only for the communities living around the plant in the San Joaquin Valley, but for all communities that depend on EPA to ensure that new industrial sources are only allowed if they will not create new air quality problems,” said Cort.

Read the Petition for Review.