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Thursday, August 17, 2006

Ind. Decisions - 7th Circuit rules on two Indiana cases today

In USA v. Cinergy Corp. (SD Ind., Larry J. McKinney, Chief Judge), a 9-page opinion, Circuit Judge Posner writes:

The Environmental Protection Agency sued the owner of a number of coal-fired electric power plants claiming that the owner (Cinergy) had violated section 165(a) of the Clean Air Act, 42 U.S.C. § 7475(a), by physically modifying the plants without first obtaining from the EPA a permit that the agency contends is required by EPA regulation 40 C.F.R. § 52.21 for the type of modification that Cinergy made. (Other regulations are applicable to some of Cinergy’s facilities but are materially identical to section 52.21, see New York v. EPA, 413 F.3d 3, 13 (D.C. Cir. 2005) (per curiam), and so needn’t be discussed separately.) The modifications produced increases in the nitrogen oxides and sulfur dioxide annually emitted by the plants. If the EPA prevails in the suit, Cinergy will be required to retrofit the plants with costly pollution-control equipment (“best available control technology”). § 52.21(j)(3).

Cinergy argues that the regulation does not require modifications that do not increase the hourly rate at which a plant emits pollutants, even if the modifications increase the annual rate. The EPA argues that Cinergy is misreading the regulation. The district judge agreed with the EPA but authorized Cinergy to take an interlocutory appeal from his ruling, and we have consented to take the appeal. 28 U.S.C. § 1292(b). * * *

Cinergy’s other arguments are makeweights, and we will not extend this opinion to discuss them. AFFIRMED.

Here is the Sept. 5, 2005 ILB entry on the 8/29/05 federal district court ruling, headed "Cinergy loses summary judgment motion in NSR case."

In Murdock & Sons v. Goheen General (John Daniel Tinder, Judge), an 11-page opinion, Circuit Judge Kanne writes:

Murdock & Sons Construction, Inc. (“Murdock”) was the subcontractor in a construction contract. Murdock was to perform all of the masonry work for a maximum security prison for the State of Indiana (the “State”) [to be named the Wabash Valley Correctional Institution]. Unfortunately for Murdock, its union masons did not work nearly as fast as was projected in the original bid, for reasons that were never determined. This resulted in serious delays and cost overruns; however, the State was unwilling to provide Murdock with an extension of time in which to complete the project. Murdock eventually walked off the job and filed the rarely seen constructive acceleration claim against the general contractor and the State, as well as two other claims we need not address. Following a bench trial, the district court ruled against Murdock on all claims (including a counterclaim by the general contractor not at issue here). Murdock appeals, and we affirm.

Posted by Marcia Oddi on August 17, 2006 02:09 PM
Posted to Ind. (7th Cir.) Decisions