(ALBUQUERQUE)---Based on issues raised in an appeal led by Attorney General Gary King, the federal Environmental Appeals Board(EAB) has remanded the air quality permit for the Desert Rock power plant to the Environmental Protection Agency.

"We challenged Desert Rock’s air permit because it shortchanged public health and the environment in New Mexico," says Attorney General King. "In taking this permit back, EPA can now do what we have said they must do all along and that is to ensure that New Mexicans receive the full protections provided under federal law."

The appellate board that has been reviewing the Clean Air Act permit for the proposed Desert Rock power plant in northwest New Mexico essentially sent that air permit back to the drawing board. The EAB's action came in response to an April request made by the EPA to take the permit back to reconsider several issues that New Mexico had raised in its appeal of the permit. 

In its 79-page ruling issued on September 24, the EAB made a two-fold decision.  First, it granted EPA's request to withdraw the entire permit to revisit issues raised in New Mexico's appeal.  The EAB also separately found that the EPA had "abused its discretion" in refusing to consider certain pollution controls for the proposed power plant and cited this as an independent ground for remanding the entire permit. 

The EPA had cited four major issues it wishes to reconsider when it revisits the Desert Rock permit, all of which formed the basis of New Mexico’s legal challenge:

1.   Integration of the Endangered Species Act consultation with the Clean Air Act permit for Desert Rock--The EPA had previously issued the permit without considering the project’s impact on endangered species.  

2.   Integration of the analysis for hazardous air pollutants, such as mercury, into the Desert Rock permitting process—Federal law requires the EPA to minimize emissions of hazardous pollutants before it can authorize construction of Desert Rock. The previous permit did not reflect those requirements.

3.   Analysis and restrictions on emissions of fine particulate matter—Acting under an outdated policy, the EPA only looked at so-called coarse or large particulate matter in its original permitting decision.

4.   The use of gasification (Integrated Gasification Combined Cycle or “IGCC”) technology to reduce emissions from Desert Rock—This is a promising technology for dramatically reducing emissions, but the EPA originally declined to consider it.

To address all of these issues, the EPA will have to reopen the permitting process do extensive additional analysis, which could take many months—if not a year or more—to complete.