EPA is planning to exempt California’s Avenal power plant’s air permit along with several others, from new nitrogen dioxide (NO2), greenhouse gas (GHG) and other limits that have taken effect.
Just before a federal judge was scheduled to hear February 1, 2011 from agency lawyers on its plan to issue the long-stalled permit for the proposed Avenal plant in California, EPA air chief Gina McCarthy told the court in a January 31, 2011 declaration that officials are planning to adopt a new policy that exempts permits that have yet to be “issued” from complying with air quality limits that took effect after the permits were first sought.
The company is among the first to challenge EPA’s failure to comply with a Clean Air Act mandate that prevention of significant deterioration (PSD) permits be issued 12 months after completed permit applications are submitted.
Highlights of Regina McCarthy’s Declaration to the court:
- Applicants seeking PSD permits to construct stationary sources of air pollution have experienced unforeseen challenges with the preparation and review of information to predict the impact of proposed sources on hourly N02 concentrations. This gave rise to an EPA policy review that has now proceeded to the point that the agency can more specifically explain how it intends to move forward with action on the PSD permit application submitted by Avenal Power Center (“Avenal”).
- As part of this policy review, EPA has determined that it is appropriate, under certain narrow circumstances, to grandfather certain PSD applications from the requirement to demonstrate that the proposed facility will not cause or contribute to a violation of the hourly N02 standard. In addition, EPA believes the factors that justify such an approach for the hourly N02 standard also provide a basis not to subject these same permit applications to additional permitting requirements that have taken effect during the period of time these permit applications have been pending and permit applicants have been seeking to compile the additional information necessary to demonstrate that the source will not cause or contribute to a violation of the hourly N02 standard.
- This determination represents a change in the position EPA has taken in this matter and in previous interpretive statements issued by EPA, including statements cited by EPA to support its Cross Motion for Summary Judgment in this litigation.
- Because this change in position requires that EPA modify or narrow previous interpretations of EPA regulations and the position EPA has taken in public statements to this court regarding this permit, the Agency reads applicable regulations and case law to require that the EPA provide the public with an opportunity to comment on this proposed action before the Agency can issue a final decision on the pending permit application that exempts Avenal from these additional requirements.
- EPA intends to issue a supplemental public notice that will request comment on EPA’s proposal to approve Avenal’s application without requiring a demonstration that this source will not cause a violation of the hourly N02 standard. In addition, this notice will also request comment on EPA’s proposal not to require this source to meet emissions limitations for greenhouse gases or to demonstrate that the proposed source will not cause or contribute to a violation of the National Ambient Air Quality Standards for hourly concentrations of sulfur dioxide which became effective on August 23, 2010. The notice will also inform interested persons of the opportunity to provide comments on these subjects at a public hearing.
- As a result of a recent ruling by the EPA Environmental Appeals Board, EPA has also determined that it is necessary to supplement its analysis of whether minority and low income communities may be disproportionately affected by emissions of N02 from the Avenal facility. EPA is in the process of drafting a supplemental statement of basis to explain its justification for exempting Avenal from these additional requirements described above and to provide a supplemental analysis concerning disproportionate impacts to minority and low income communities. EPA requires an additional 3 weeks to complete this document.
- After consideration of public comments the Agency may receive in response to this public notice, EPA will be able to complete final action on this permit application by May 27, 2011.
