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Battle Over Avenal Power Plant Continues

(from March 2012)

The four year battle over a Kings County gas-fired power plant continues this month.

Facing what it fears could be several years of protracted litigation and caught in the middle over an EPA approval of their operating permit, Avenal Power Center this week petitioned the California Energy Commission to OK a plan to begin construction and operate under rules as minor source of air emissions resulting in less than 100 tons per year.

Avenal Power wants to start construction on a 600 MW natural gas fired power plant just east of Highway 5 in the City of Avenal and says it has already waited four years to clear legal hurdles as it is.

Waiting longer for resolution of lawsuits against the EPA would mean they would lose their place in a long term queue to connect to the power grid and start approvals all over argues their petition to the CEC.

No Harm?

The petition says “None of the changes requested in the Amendment) in this petition) would change the scope of the Project as licensed by the(CEC) Decision. Furthermore, the Amendment would create no new adverse environmental impacts. Finally and as discussed in Section III(G) below, the Project will remain in compliance with all applicable laws, ordinances, regulations and standards (“LORS”) including the federal hourly NO2 and SO2 standards adopted after the date of the Decision).

Ironically, it was environmental groups’ contention that the Avenal project  had been grandfathered by EPA and as result did not have to meet the new 1 Hr rule – a rule Avenal says they are in compliance with in any case.

The petition argues that “It took over three and a half years to obtain a final PSD Permit from the EPA. Furthermore, the PSD Permit is now being litigated in the Ninth Circuit Court of Appeals. Due to the uncertainties of litigation, Avenal Power cannot predict when the ongoing appeals to the Project’s PSD Permit will ultimately be resolved. Therefore, Avenal Power respectfully requests the Commission to extend the deadline to commence construction on the Project until five years after the Commission decision on the amendments contained in this Petition.”

“In early November 2011, three lawsuits were filed against the Project’s PSD Permit in the Ninth Circuit Court of Appeals. Although one of these Ninth Circuit appeals was dismissed as untimely, the remaining two appeals are still in the early stages of litigation. At this time it is unclear when these appeals will be resolved.”

Here is some recent history.

On May 26, 2011, U.S. District Court Judge Richard Leon ordered the USEPA to make a final permit decision, which the agency did the following day. Construction of the power plant could begin after a 60-day administrative appeal period.

Paul Cort of Earthjustice was quoted in a news story as saying that an administrative appeal would be filed, and if that is unsuccessful, the organization would appeal to the federal court.[10] In June 2011, both People for Clean Air and Water and the Sierra Club filed petitions for review with the USEPA’s environmental appeals board. The Center for Biological Diversity joined the Sierra Club’s petition. Their petition alleged that the proposed plant would emit excessive nitrogen oxides and is being wrongfully grandfathered in under old clean air rules.

On August 18, 2011, the USEPA’s environmental appeals board denied the petition. Bradley Angel renewed his vow to continue the fight in court. A news story quoted him as saying: “Basically the fix was in when EPA boss Lisa Jackson broke her commitment to environmental justice and illegally approved the permit. We’re going to continue to challenge it. It’s going to court.” On November 3, 2011, The Sierra Club, the Center for Biological Diversity and Greenaction filed suit with the Ninth Circuit Court of Appeals challenging the EPA permit.

Avenal Power says this legal battle could go on a long time.

”We note for comparison purposes that another recent NinthCircuit case challenging an EPA decision under the Clean Air Act took over three years from the time the lawsuit was filed until the time the court’s judgment went into effect.”

In addition, the Project’s Interconnection Agreement with the California Independent System Operator (“CAISO”) would be put in jeopardy, placing the Project at risk of starting over in the CAISO interconnection process that also takes several years to complete they say.

The CEC is expected to take several months to approve the request,but that approval was likely.

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