United States of America
Air pollution, Civil, Injunctive Relief, Permits
The Appeals Court explains that two sets of petitioners, hereinafter referred to as "Industry Petitioners" and "Environmental Petitioners," seek review of the United States Environmental Protection Agency's (EPA) final rule partially approving and partially disapproving the most recent revision to Texas's State Implementation Plan (SIP) submitted by the Texas Commission on Environmental Quality (TCEQ) pursuant to the Clean Air Act (CAA). In its final rule which became effective on January 10, 2011, the EPA partially approved and partially disapproved the most recent revision to Texas's SIP which was submitted by the TCEQ in 2006. The portion of the SIP at issue creates an affirmative defense against civil penalties for excess emissions during both planned and unplanned startup, shutdown, and maintenance/malfunction (SSM) events. The EPA approved the portion of the SIP revision providing an affirmative defense against civil penalties for unplanned SSM events and disapproved the portion of the SIP revision providing an affirmative defense against civil penalties for planned SSM events. The Appeals Court ruled in part that, "EPA in its partial disapproval of the SIP revision adheres to its past policy guidance. Moreover, the record indicates that the EPA's partial disapproval of the plan was the result of a formal and deliberative decision-making process. Therefore, we hold that the agency's action disapproving the portion of the SIP providing an affirmative defense for planned SSM activity is entitled to Chevron deference." The Appeals Court also determined in part, ". . .we uphold the EPA's disapproval of the affirmative defense as it applies to planned startup and shutdown activity. Regardless of whether the activity at issue is planned maintenance or planned startup/shutdown, the improper cross-referencing in subsection (h) to subsection (c) leads to an overly-broad applicability of the defense. In addition, as stated, it is within the agency's discretion to exercise its partial approval and disapproval power with regard to SIP submittals." Finally, the Appeals Court concludes, ". . .we conclude that the EPA did not act arbitrarily or capriciously, contrary to law, or in excess of its statutory authority, in its partial approval and partial disapproval of Texas's SIP revision. We therefore deny the petitions for review submitted by both Environmental Petitioners and Industry Petitioners."