The U.S. Fifth Circuit Court of Appeals on July 30 rejected an attempt by Luminant Generation Co. LLC and related parties to strike down a U.S. Environmental Protection Agency decision to partially approve and partially disapprove a Texas State Implementation Plan (SIP).
Two sets of parties appealed the EPA decision. One set was composed of Luminant Generation, Oak Grove Management Co. LLC, Big Brown Power Co. LLC and Sandow Power Co. LLC, which control a lot of coal-fired power generating capacity in Texas. The other group consisted of the Environmental Integrity Project, Sierra Club, Environment Texas Citizen Lobby, Citizens for Environmental Justice, Texas Environmental Justice Advocacy Services, Air Alliance Houston and the Community In-Power and Development Association.
“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,” said the July 30 appeals court ruling.
In its final rule which became effective on Jan. 10, 2011, the EPA partially approved and partially disapproved the most recent revision to Texas’s SIP which was submitted by the state 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 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.