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EPA: Federal Pollution Limits Won't Apply To Some Industrial Facilities Including Avenal Power

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WASHINGTON — More than a dozen industrial facilities could escape new federal controls on air pollution and the gases blamed for global warming after a top Environmental Protection Agency official told a federal court that a long-delayed California power plant would not have to comply with the rules.

The reversal by the EPA comes as the Obama administration is under attack from Republicans for a host of new air pollution regulations that they say will kill projects and jobs. Republican leaders in the House and Senate unveiled legislation Wednesday aimed at preventing the agency from regulating greenhouse gases under the Clean Air Act. It's the latest in a series of legislative efforts to undermine the EPA.

"This determination represents a change in the position EPA has taken in this matter," EPA Assistant Administrator Gina McCarthy says in the document, which was filed Monday in U.S. District Court. In a statement, the agency said it was not fair or appropriate to require facilities with applications in the final stage of the review to comply with standards that have just recently taken effect.

About 10 to 20 facilities out of the hundreds waiting for air pollution permits could be exempt from new rules, the EPA said. But it is unclear how many would have met the threshold to trigger controls on global warming gases.

In the last year, the agency has placed new limits on smog-forming nitrogen oxides and sulfur dioxide, which causes acid rain and is linked to numerous respiratory ailments. And just a month ago, the first-ever rules controlling global warming gases from large factories and power plants went into effect.

"It creates a strong argument for 'treat us the same way you treat this guy'," said Michael Gerrard, an environmental law professor at Columbia University and former chair of the American Bar Association's environmental section, who reviewed the document. Gerrard said the move "is part of the administration's effort not to stop or be accused of stopping too many new projects."

The EPA initially told the court that Avenal Power Center, LLC in central California would have to prove that its 600-megawatt, natural gas-fired power plant would not cause violations of a new standard on smog-forming nitrogen oxide. The company sued the agency for taking too long to decide on its permit, which it initially filed in February 2008.

EPA officials downplayed the decision and said it had no bearing on their stance to regulate global warming pollution.

But Clean Air Watch President Frank O'Donnell called it "a disturbing reversal of policy."

"It is hard to avoid the conclusion that this change is at least partly aimed at blunting political attacks," O'Donnell said. "But it may only whet the appetite of those in industry and Congress who want to block health and environmental standards."

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