The Fifth Circuit Court of Appeals has upheld a U.S. Environmental Protection Agency (EPA) decision that partially approved and partially disapproved a Texas state implementation plan (SIP) revision concerning air emissions during facility startup, shutdown and maintenance/malfunction (SSM). Luminant Generation Co. LLC v. EPA, No. 10-60934 (5th Cir. 7/30/12).

Dallas, Texas-based Luminant Generation Co. LLC and several environmental groups filed separate petitions seeking review of EPA’s final decision. Luminant argued that EPA improperly rejected a portion of the SIP revision that contained an affirmative defense against penalties for planned SSM events and associated excess emissions. Luminant alleged that EPA’s disapproval of that provision was “arbitrary, capricious, and contrary to law.” The environmental group petitioners argued that EPA’s approval of an affirmative defense for unplanned SSM events was outside EPA’s statutory authority and not in accordance with the Clean Air Act (CAA). They also argued that EPA’s approval conflicts with the CAA’s requirement that the state permitting authority be able to assess civil penalties.  

The three-judge panel rejected both petitions for review, ruling that EPA did not act arbitrarily or capriciously, contrary to law or in excess of statutory authority. The decision follows an earlier Fifth Circuit ruling upholding EPA’s disapproval of revisions to the Texas SIP regarding facility modifications. BCCA Appeal Group v. EPA, No. 10-60459 (5th Cir. 6/18/12).