Wednesday, July 08, 2015

YET AGAIN: Texas sues EPA

Texas Attorney General Ken Paxton today filed a petition for review in the U.S. Fifth Circuit Court of Appeals over the Environmental Protection Agency (EPA) reversing its approval of provisions of Texas’ clean air program. The provisions regulate emissions associated with unplanned startup, shutdown and malfunction (SSM) events of permitted sources, as required under the Clean Air Act.

“The Obama Administration’s EPA made an abrupt and unwarranted about-face, disrupting a longstanding policy which they had already approved to manage emissions,” Attorney General Paxton said. “The EPA’s actions make it impossible for even the most carefully-regulated facilities to avoid costly penalties due to unplanned events out of their control. We will continue to fight back the EPA’s ongoing efforts to encroach on Texas’ effective management of our air quality standards.”

The EPA approved Texas’ affirmative defense provisions in November 2010, finding that they were appropriate, narrowly tailored and consistent with the Clean Air Act. The EPA reversed its position in May when it enforced a decision by the DC Circuit Court of Appeals, which had issued a ruling regarding EPA rules for national emissions standards to the State Implementation Plans (SIP) of Texas and 35 other states.

Texas has demonstrated that it can clean its air while working with industry to address and resolve events where unexpected emissions occur. Despite 15 years of rapid population and economic growth, nitrogen oxide and ozone levels are down and Texans are breathing cleaner air. While population has increased in Texas by 29 percent, the maximum eight-hour ozone design values have decreased by 28 percent. In addition, Texas ozone levels in 2014 either equaled or were lower than the best levels ever measured in most areas of the state.

The Texas Attorney General’s Office and the Texas Commission on Environmental Quality are requesting the Court to review the EPA’s finding of “substantial inadequacy” on the SSM provisions of the Texas SIP, which provide affirmative defenses for violations of emission events due to upset and opacity events and unplanned startup and shutdown activities when prescribed criteria are met.

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