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July 27 — Thirty-six states have to update their plans for addressing excess emissions during facilities' startup, shutdown and malfunction because they contain provisions that violate “bedrock principles” of the Clean Air Act, according to the Environmental Protection Agency ( Walter Coke Inc. v. EPA, D.C. Cir., No. 15-1166, brief filed 7/26/16 ).
The EPA, in a July 26 brief , defended its decision to require the states to alter their implementation plans to remove affirmative defense provisions, which shielded power plants and other industrial facilities from civil penalties related to violations caused by unavoidable equipment malfunctions. The agency in 2015 issued a rule (RIN:2060-AR68) that found the states to be substantially inadequate and required them to file revised plans by Nov. 22.
A coalition of 19 states, along with various industry organizations, is challenging that rule, known as a “SIP call,” in federal appeals court. The petitioners in March argued in opening briefs that the EPA lacks the authority to require the states to change previously approved plans because the agency failed to show that any of the plans are “substantially inadequate.”
The EPA argued in its brief that the SIP call was issued to address specific plan provisions that violate “one or more” of the following Clean Air Act principles:
The state plans in question were previously approved by the EPA, which thought the Clean air Act allowed for affirmative defense provisions in limited circumstances.
The agency's original interpretation was bolstered by a 2013 ruling by the U.S. Court of Appeals for the Fifth Circuit, which found affirmative defense language in Texas's state plan to be legal ( Luminant Generation Co. v. EPA , 714 F.3d 841, 2013 BL 79999, 76 ERC 1575 (5th Cir. 2013)).
The EPA later changed its determination following a 2014 U.S. Court of Appeals for the District of Columbia Circuit ruling that the Clean Air Act did not provide the agency with the authority to include an affirmative defense in national hazardous air pollution standards for cement kilns ( NRDC v. EPA , 749 F.3d 1055, 2014 BL 108218, 78 ERC 1369 (D.C. Cir. 2014)).
Texas Attorney General Ken Paxton (R), the Texas Oil & Gas Association and Luminant Generation Co. LLC, all of which are challenging the SIP call as applied to Texas, argued that the EPA's new interpretation on the legality of affirmative defense provisions “directly contradicts” that Fifth Circuit ruling.
The agency argued in its brief, however, that the Fifth Circuit's Luminant ruling does not preclude an interpretation change. While the Fifth Circuit ruled the EPA's original interpretation that affirmative defense is permissible under the Clean Air Act, the court did not address whether the agency's new interpretation is also permissible, the EPA said.
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The EPA's brief in Walter Coke Inc. v. EPA is available at http://src.bna.com/haq .
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