ELR Citation: 42 ELR 20163
No(s). 10-60934 (5th Cir. Jul 30, 2012)

The Fifth Circuit upheld an EPA rule partially approving and partially disapproving revisions to Texas' SIP concerning civil penalties for excess emissions resulting from startup, shutdown, and malfunction (SSM) activities. Environmental petitioners sought review of EPA's decision to approve a revision that provided an affirmative defense for unplanned SSM activity, whereas industry petitioners sought review of EPA's disapproval of a revision providing an affirmative defense for planned SSM activity. The court denied both petitions. The affirmative defense for unplanned SSM activity is consistent with the CAA and the Agency's past policy guidance, and it will not serve as a disincentive for companies to avoid excess emissions. Likewise, EPA's reasons and policy choices for disapproving the affirmative defense for planned SSM activity conform to minimal standards of rationality. The court also rejected arguments that EPA should have severed and approved the affirmative defense for planned startup and shutdown activity, even if it had determined that there should be no affirmative defense for planned maintenance activity.