ELR Citation: ELR 20266
No(s). s. 09-3344 et al (7th Cir. Oct 12, 2010)

The Seventh Circuit reversed and remanded a lower court decision finding a coal-fired electric power plant in the Midwest liable for making "major" modifications to the plant without first obtaining a permit from EPA in violation of the CAA. The CAA does not authorize the imposition of sanctions for conduct that complies with an SIP that EPA approved. As for increases in sulfur dioxide emissions, the modifications at issue here are governed by the state plan that EPA had approved in 1982. That plan provided that hourly capacity rather than annual emissions determined whether a permit was required for a modification. Although Indiana had amended the SIP to conform the definition of modification to the actual-emissions standard, it did not submit an amended plan, with the critical change, until several years later--after the modifications at issue in this case took place. With respect to the emissions of nitrogen oxide, the parties agree that the actual-emissions standard controls. Nevertheless, the lower court erred in allowing EPA’s expert witnesses to testify that the modifications made would result in an increase in annual emissions beyond what the SIP permitted. The formula the experts used was designed for use with baseload electric generating plants rather than for cycling facilities. Their evidence, therefore, should not have been admitted. And without expert testimony to support an estimate of actual emissions caused by the modification, the government cannot prevail. Accordingly, the case was reversed and remanded.

[Prior decisions in this litigation can be found at 38 ELR 20264 and 39 ELR 20114.]