ELR Citation: 42 ELR 20072
No(s). 10-60891 (5th Cir. Mar 26, 2012)

The Fifth Circuit vacated EPA's disapproval of three Texas regulations that provide for a standardized permit for minor new source review (NSR) pollution control projects that reduce or maintain current emissions rates. EPA had no legal basis on which to disapprove the permit. EPA used Texas law as its benchmark for disapproving the permit, but the Agency is only authorized to review the permit for compliance with the applicable requirements of the CAA. EPA also disapproved the permit on the grounds that its availability is not limited to "similar sources." Under EPA's similar source requirement, the availability of each standard permit must be limited to a narrowly defined category of emission sources, such as oil and gas facilities, asphalt concrete plants, and concrete batch plants. But the CAA does not authorize EPA to impose a similar source requirement on minor NSR. Third, EPA lacked the authority to disapprove the permit based on its view that the permit does not include any "replicable" limits on how the director of the state environmental agency is to exercise discretion. Neither the Act nor its implementing regulations require a state's minor NSR program to include replicable permit conditions. On remand, EPA must limit its review of the regulations to ensuring that they meet the minimal CAA requirements that govern SIP revisions to minor NSR, and it must do so expeditiously.