EPA Findings on Texas Air Rules Survive Suit

     (CN) – The 5th Circuit declined to review the Environmental Protection Agency’s partial rejection of clean-air regulations proposed by Texas.
     The Clean Air Act requires each state to create its own plan for implementation and enforcement of emissions regulations. EPA regulators must then review the state implementation plan (SIP) for compliance with the act.
     Texas submitted a revised plan in 2006, which the EPA partially approved for use beginning in January 2011.
     The federal agency refused to allow the state to provide an affirmative defense against civil penalties for excess emissions resulting from planned startup, shutdown and maintenance events. It did, however, permit the state to provide an affirmative defense for such unplanned events.
     Challenges to the EPA decision came from both environmentalists and energy industry players.
     Seven environmental advocacy groups, including the Sierra Club, argued that allowing an affirmative defense for unplanned startup, shutdown and maintenance events would violate the Clean Air Act.
     Meanwhile, Dallas-based Luminant Generation and others argued that the agency should have approved the affirmative defense for planned events.
     A three-judge panel from the New Orleans-based 5th Circuit rejected the parties’ petitions for review of the EPA decision on Friday. The panel’s ruling replaced a previous opinion issued in July.
     “Because we find that the EPA did not act arbitrarily or capriciously, or contrary to law, or in excess of its statutory authority, in its partial approval and partial disapproval of Texas’s SIP revision, we deny both petitions for review,” Chief Judge Carl Stewart wrote for the panel.
     “The EPA construes section 7413 of the act as authorizing affirmative defenses against civil penalties if the defense is ‘narrowly tailored’ to address unavoidable, excess emissions and consistent with the penalty assessment criteria set forth in section 7413(e),” he added.
     Though the act provided for an affirmative defense for unplanned events, the EPA contended the same would not apply for planned events.
     “The agency reasons that because planned maintenance activities are predictable, a source can avoid excess emissions from these activities by scheduling maintenance during shutdown periods,” Stewart wrote. EPA interpretation warrants deference by the court, according to the ruling.

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