ALASKA CALIFORNIA FLORIDA MID-PACIFIC NORTHEAST NORTHERN ROCKIES 

NORTHWEST ROCKY MOUNTAIN WASHINGTON, DC INTERNATIONAL 

426 17TH STREET, 5TH FLOOR OAKLAND, CA 94612-2807 

T: 510.550.6725 F: 510.550.6749 E: eajusca@ea rthjustice.org W: www.earthjustice.org 

April 21, 2010

VIA ELECTRONIC MAIL

Ms. Shirley Rivera (AIR‐3)

U.S. Environmental Protection Agency, Region 9

75 Hawthorne Street

San Francisco, CA 94105‐3901

Re:   Short‐term NO2 NAAQS and the Proposed Prevention of Significant Deterioration

Permit for the Avenal Energy Project (PSD Permit No. SJ 08‐01)

Dear Ms. Rivera:

Greenaction for Health and Environmental Justice, California Communities Against

Toxics, the Center on Race, Poverty & the Environment, Pacific Environment, and the Tehipite

Chapter on behalf of the Sierra Club write to request that EPA require the Avenal Power Center,

LLC to demonstrate that its proposed new 600 MW electric power generating plant in Avenal,

California will not cause or contribute to violations of the 1‐hour national ambient air quality

standard (“NAAQS”) for nitrogen dioxide (“NO2”).  EPA promulgated the final 1‐hour NO2

standard on February 9, 2010.  75 Fed. Reg. 6474 (February 9, 2010). The standard became

effective April 12, 2010.  Id.  Given the lack of the required demonstration in the permit

application, these groups further request that EPA withdraw its March 19, 2008 determination

that the Avenal Power Center’s application is administratively complete.  See Letter from

Gerardo Rios, Chief, Permits Office, U.S. EPA, Region IX, to Stuart Zisman, Avenal Power

Center, LLC (Mar. 19, 2008).  Because the application fails to include the information necessary

for assessing the potential impact of the proposed source on ambient 1‐hour NO2 concentrations

in the heavily polluted San Joaquin Valley, the application does not meet the definition of

“complete” provided in 40 CFR § 52.21(b)(22).

The new 1‐hour NO2 standard of 100 parts per billion is necessary to protect public

health, especially that of the elderly and children, from the harms of short‐term exposure to

elevated levels of NO2. As such, the standards will help reduce respiratory‐related emergency

room visits and hospital admissions.  See U.S. EPA, Fact Sheet: Final Revisions to the National

Ambient Air Quality Standards for Nitrogen Dioxide, available at

http://www.epa.gov/air/nitrogenoxides/pdfs/20100122fs.pdf.  EPA issued the 1‐hour standard

because a short‐term NAAQS is necessary to protect public health above and beyond the

existing annual standard.  See, e.g., 75 Fed. Reg. at 6483‐90.  Demonstrating protection of only

the annual NO2 standard therefore is insufficient to comply with the Clean Air Act’s New

Source Review program and to protect public health.  
As a proposed major new source of NO2, the 600 MW plant cannot be permitted if it will

negatively impact air quality.  The Clean Air Act clearly prohibits the construction of a major

facility unless the owner or operator “demonstrates . . . that emissions from construction or

operation of such facility will not cause, or contribute to, air pollution in excess of any . . .

national ambient air quality standard in any air quality region . . . .”  Clean Air Act § 165(a)(3)

(emphasis added). The 1‐hour NO2 NAAQS is “any” national ambient air quality standard, and

thus Avenal must make the required demonstration under the short‐term NAAQS.

EPA has recognized that “major new and modified sources applying for NSR/PSD

permits must demonstrate that their proposed emissions increases of NOx will not cause or

contribute to a violation of either the annual or the 1‐hour NO2 NAAQS . . . .”  75 Fed. Reg. at 6525

(emphasis added). The Agency furthermore has commented that any final permit issued after

the April 12, 2010 effective date of the new NO2 standard must include the required air quality

demonstration for the 1‐hour NO2 NAAQS.  See Memo from Stephen D. Page, Director, OAQPS,

EPA, to EPA Regional Air Division Directors (April 1, 2010).1

The proposed Avenal Power Plant will emit 144.3 tons per year of NO2.  See EPA,

“Statement of Basis and Ambient Air Quality Impact Report: Avenal Energy Project” at 14 (June

2009).  The applicant has not submitted any analysis to demonstrate protection of the 1‐hour

NO2 NAAQS of 100 ppb from this significant new source of NOx pollution.  EPA must either

require a 1‐hour NO2 analysis or deny the permit for failure to demonstrate protection of this

NAAQS.  The modeling analysis must use emission rates that reflect the maximum short‐term

rate under the draft permit to match the short‐term NAAQS.

Commenters are aware that Avenal Power Center, LLC has filed a deadline action

against EPA for failure to act on Avenal’s permit application within the deadlines provided

under Clean Air Act section 165(c).  Given the absence of the required analysis regarding

potential 1‐hour NO2 impacts, commenters believe any settlement of this litigation that commits

EPA to act within a specified time period would be premature.  Instead, EPA must withdraw its

determination that the Avenal application is administratively complete pending submission of

the missing analysis.  Once that analysis is provided, EPA can reassess whether all of the

information necessary for assessing the application has been provided, see 40 CFR § 52.21(b)(22),

and then re‐propose its decision along with the supporting statement of basis.

 

1 See also Letter from Becky Weber, Director, Air and Waste Management Division, U.S. EPA Region 7, to

John Mitchell, Director, Kansas Dept. Envt’l Health (April 2, 2010) (regarding proposed Sunflower

Electric Company’s Holcomb 2 facility).  In addition EPA Region 4 recently commented on a draft major

modification permit for the J.K. Smith facility in Kentucky that: “On January 22, 2010, EPA signed into

law a new National Ambient Air Quality Standard (NAAQS) for nitrogen dioxide (NO2). The new

standard is a 1‐hour standard set at the level of 100 parts per billion (ppb).  The effective date of the new

NAAQS will be April 12, 2010.  If the final PSD permit for J.K. Smith has not been issued by the time the new

NAAQS is effective, the Division will need to include the appropriate air quality analysis before a final PSD permit

is issued.” (emphasis added).  Available at http://www.air.ky.gov/NR/rdonlyres/391526C2‐4F06‐4E8C‐

9D6F‐217B3C9DEB25/0/AttachmentsAD.pdf.
Thank you for your attention to this important matter.  If you have any questions, please

feel free to contact me at (510) 550‐6725.

Sincerely,

Paul Cort

cc: Jared Blumenfeld, Regional Administrator, EPA

Debbie Jordan, Air Division Director, EPA