EPA Wins Another CAA Case: No Affirmative Defense For Excess Emissions During Planned Maintenance

EPA Wins Another CAA Case: No Affirmative Defense For Excess Emissions During Planned Maintenance

Score a victory for EPA in its long-running set of disputes with the State of Texas and generation facilities in Texas. Yesterday, in Luminant Generation Co. v. United States Environmental Protection Agency, the 5^th Circuit Court of Appeals affirmed EPA's decision to partially approval and partially reject the Texas SIP, essentially rejecting both environmentalist and industry challenges to EPA's determination regarding excess emissions during startup, shutdown, and malfunction/maintenance (SSM). In short, the Court agreed with EPA's decision to allow sources to assert an affirmative defense to an enforcement case related to excess emissions during unplanned SSM events, but to deny that defense in the case of planned SSM events.