The Fifth Circuit Court of Appeals has withdrawn an October 2012 opinion and substituted a new opinion in challenges to U.S. Environmental Protection Agency (EPA) action on a 2006 Texas State Implementation Plan (SIP) revision under the Clean Air Act (CAA). Luminant Generation Co. LLC, v. EPA, No. 10-60934 (5th Cir. 3/25/13).

The challenges focused on provisions relating to emissions that exceed permit limits during startup, shutdown and malfunction conditions. The 2006 SIP revision allowed for an affirmative defense against penalties, but not against injunctive relief, under certain circumstances if emissions exceed established limits during unplanned startup, shutdown or malfunction conditions. EPA approved this provision, finding that it was narrowly tailored to address unavoidable, excess emissions and was consistent with CAA penalty assessment criteria. Environmental groups challenged the approval, arguing that it was contrary to the CAA and was arbitrary and capricious. The court upheld EPA’s approval, dismissing that challenge.

The 2006 SIP also contained an affirmative defense for excess emissions during planned startup, shutdown and maintenance operations, under certain circumstances. EPA disapproved this provision, relying on its own guidance that operators should be able to avoid excess emissions through careful planning. Industry groups challenged EPA’s disapproval of this provision, arguing that it should have been approved or, at least, that EPA should have severed the defense for maintenance activities and approved the defense for planned startup and shutdown conditions. Using a deferential standard of review, the court upheld EPA’s interpretation that no CAA defense should be available for planned maintenance activities and also concluded that “even if severed, the [planned startup and shutdown] provisions would not have been consistent with the agency’s interpretation” of the CAA. Accordingly, it also dismissed the industry challenge to EPA’s disapproval of this portion of the 2006 SIP.