### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-60158 Summary Calendar

LUMINANT GENERATION COMPANY, L.L.C.; BIG BROWN POWER COMPANY, L.L.C.; STATE OF TEXAS,
Petitioners v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent

Petition for Review of an Order of the Environmental Protection Agency

Before KING, CLEMENT, and HIGGINSON, Circuit Judges. PER CURIAM: * This case involves consolidated petitions for revie w of the EPA’s disapproval of an environmental regulation promulgated by the State of Texas. For the reasons discussed below, we VACATE the EPA’s d i s a p p r oval of the regulation and REMAND to the EPA for further proceedings. U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Octob er 24 , 20 12 Lyle W . Cayce Clerk

Purs uant to 5th Circ uit Rule 47.5 , the cour t has det erm ined that this opi nion sho uld * not be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5th Circ uit Rule 47.5 .4. Case: 11-60158 Document: 00512031802 Page: 1 Date Filed: 10/24/2012No. 11-60158 I. BACKGROUND In 2011, the Environmen t a l P r o tection Agency (“EPA” or “the Agency”) issued a final rule partially approving and partially di s a p p roving revisions of the Texas St a te Implementation Plan (“SIP”)—a set of rules promulgated by the State of Texas in fulfillment of its obligations un der the Clean Air Act. See 42 U.S.C. § 7410; Approval and Promulgation of Air Quality Implementation Plans, 76 Fed. Reg. 1525 (Jan. 11, 2011) (to be codified at 40 C. F

. R

. p t

. 5 2 )

. At issue here is the Agency’s disapproval of a provision within the SIP, 30 Tex. Admin. Code § 116.911(a)(2), whic h requires owners and operators of certain electric generating facilities to de m o nstrate that any newly proposed pollution control method s c o m ply with Texas’s Standard Permit for Pollution Control Projects (“PCP”). Petitioners argue that the EPA had no legal basis for disapproving

1 section 116.911(a)(2), and that the EPA’s actions t h erefore must be held “unlawful and set aside.” 5 U.S.C. § 706(2). II. DISCUSSION The EPA’s sole recorded basis for disapproving section 116.911(a)(2) was that, in a prior ruling, the Agency had disapproved Texas’s Standard Permit for PCPs. See 76 Fed. Reg. at 1527. In other words, the EPA disapproved section 11 6

. 9 1 1 (a)(2) merely because that section mandated compliance with Texas’s Standard Permit for PCPs, which the EPA ha d already disapproved. See id. (“[W]e are disapproving the subm i t t e d 116.911(a)(2) because it refers to and relies on th e PCP [Standard Permit] that does not meet the applicable

On ly the EPA’s dis app roval of 30 Tex. Adm in. Code § 116. 911( a)( 2) is cur rent ly bef ore 1 the cour t. In a pr ior, rela ted cas e, this cour t a d d r e s s e d othe r EPA act ions per taini ng to Texas ’s SIP. See Lumi nant Ge ner atio n Co., L.L. C. v. EPA (Lumi nant I ), 675 F.3d 917 (5t h Cir. 2012)

. Becaus e Lumi nant I thor oughly outl ined the st atut ory and fac tual back ground rela ted to Texas ’s SIP and Stand ardPer mi t forPCPs , and bec aus e the par tie s are fam iliarwit h the iss ues int his c ase , thos e d etai ls are not rep eate d here

. 2 Case: 11-60158 Document: 00512031802 Page: 2 Date Filed: 10/24/2012No. 11-60158

requirements of the [Clean Air] Act, and was previously disapproved by the EPA as a part of the Texas SIP.”). In Luminant Generation Co., L.L.C. v. EPA (Luminant I ), 67 5 F

. 3 d 917, 921 (5th Cir. 2012), this court held that “the EPA had no legal basis on which to disapprove” Texas’s Standard Permit for PCPs and, accordingly, vacated the EPA’s ruling on that issue. The EPA has now informed the court that, having had an opportunity to review Luminant I and the record in this case, the EPA cannot reconcile its disapproval of section 116.911(a)(2) with this court’s holding in Luminant I

. The Agency concedes, then, that its disapproval of section 116.911(a)(2) was “not in accordance with law” and therefore must be vacated. 5 U.S.C. § 706(2)(A). We agree. III. CONCLUSION Accordingly, we VACATE the EPA’s disapproval of section 116.911(a)(2) and REMAND for further proceedings consistent with this opinion and Luminant I

. 2

G i v e n the cour t’s dis pos itio n of this mat ter , the pet itio ners ’ mo tio n for sum mar y 2 vacat ur and rem and, and the E PA’ s c r os s- mo tio n to rem and wi thou t vacat ur—wh ich we re car riedw ith the cas e—a re DEN IED as mo ot. 3 Case: 11-60158 Document: 00512031802 Page: 3 Date Filed: 10/24/2012