The Tenth Circuit Court of Appeals published its opinion in US Magnesium, LLC v. EPA on Monday, August 6, 2012.
The Tenth Circuit denied the petition for review. Petitioner sought review of a recent final rule from the United States Environmental Protection Agency (EPA). “In its rule, the EPA has called for Utah to revise its State Implementation Plan (SIP) for the federal Clean Air Act (CAA). Under the CAA, the EPA may call for a state to revise its SIP (a SIP Call) if the EPA finds the state’s current SIP substantially inadequate. Here, the EPA determined that Utah’s SIP was substantially inadequate because it contains an Unavoidable Breakdown Rule (UBR), which permits operators of CAA-regulated facilities to avoid enforcement actions when they suffer an unexpected and unavoidable equipment malfunction. In this SIP Call, published as a final rule in April 2011, the EPA requested that Utah promulgate a new UBR—one that conforms with the EPA’s interpretation of the CAA.” Petitioner maintains that the SIP Call is arbitrary and capricious and requested that the Tenth Circuit vacate it, however the Court denied their petition for review of the SIP Call.