Groups Challenge EPA “Free Pass” for Proposed California Power Plant

Clean air advocates go to court to defend San Joaquin Valley against Avenal facility’s pollution


George Torgun, Earthjustice, (415) 217-2084


Paul Cort, Earthjustice, (415) 217-2077


Kevin Bundy, Center for Biological Diversity, (415) 436-9682, ext. 313


Joanne Spalding, Sierra Club, (415) 977-5725


Bradley Angel, Greenaction, (415) 415-722-5270

A coalition of conservation and environmental justice groups today filed legal papers in the Ninth Circuit U.S. Court of Appeals challenging an extension of a federal air pollution permit for the Avenal Power Plant, a proposed 600-megawatt facility that would emit hundreds of tons of air pollution in the San Joaquin Valley.

In 2011, the Environmental Protection Agency (EPA) issued a permit for the project that illegally waived the need for the project to comply with several key air pollution standards. Since then, however, Avenal has chosen not to begin construction of the project even though by law the permit expired after 18 months. In its latest move, executed without any public participation, EPA has now also waived the 18-month construction deadline, compounding the project’s failure to demonstrate that it will install state-of-the-art greenhouse gas controls and that it will not cause or contribute to the Valley’s ongoing air pollution problems.

The Avenal natural-gas fired power plant is to be located in one of the most polluted and economically disadvantaged areas of the San Joaquin Valley, a region with some of the nation’s highest levels of ozone and particulate matter pollution. The plant would be sited within a few miles of the communities of Avenal, Huron, and Kettleman City, areas with predominantly low-income, minority populations already experiencing disproportionate health impacts from the numerous polluting facilities in the region. The plant would generate annually 144.3 tons of nitrogen oxides, 80.7 tons of fine particulate matter, and 1.71 million metric tons of carbon dioxide.

EPA granted the project a Prevention of Significant Deterioration (“PSD”) Clean Air Act permit in August 2011. In approving the project, however, EPA waived requirements to install controls for greenhouse gases and to demonstrate compliance with newly applicable national air quality standards for nitrogen dioxide and sulfur dioxide. EPA claimed that it could “grandfather” the project and exempt it from compliance with these requirements because they would not have been applicable but for the agency’s failure to act on the permit application in a timely manner. That decision was challenged in court and will be argued before the Ninth Circuit Court of Appeals this October.

“This air permit extension threatens to take an awful air quality situation and make it worse,” said Earthjustice attorney George Torgun. “The people of California’s San Joaquin Valley deserve better and it is EPA’s job to protect them, not to provide special favors for an already illegal project.”

In July 2013, EPA exempted Avenal from another key rule requiring that construction of a project must begin within 18 months of the permit issuance in order to assure that the latest pollution controls are included. This exemption, which is contrary to decades of EPA precedent, was based on Avenal’s specious claim that it could not obtain financing for the project due to the existing litigation.

“The EPA keeps letting some of the country’s biggest polluters off the hook, granting special favors that foul up our air and make climate change worse,” said Kevin Bundy, an attorney with the Center for Biological Diversity. “We’re facing an urgent global climate crisis and an urgent public-health crisis in the Central Valley. The EPA needs to do its job and protect both the climate and community health by enforcing the environmental laws that have served this nation so well for 40 years.”

The Sierra Club, Center for Biological Diversity, and Greenaction for Health and Environmental Justice, represented by national public-interest law firm Earthjustice, filed legal papers with the Ninth Circuit U.S. Court of Appeals challenging the permit extension by the EPA.

“By allowing this polluting power plant to escape the safeguards that EPA has determined are needed to protect our communities and our climate, EPA is prolonging our unnecessary and unsustainable dependence on dirty fossil fuels,” said Deb Nardone, Director of Sierra Club’s Beyond Natural Gas Campaign.

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