UNITED STATES of AMERICA v. Alcoa, Inc.

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 07-50706
UNITED STATES of AMERICA
Plaintiff - Appellee
v.
ALCOA, INC.
Defendant - Appellee
SANDOW POWER COMPANY LLC
Intervenor Defendant - Appellee
v.
NEIGHBORS FOR NEIGHBORS INC; PUBLIC CITIZEN INC
Appellants
NEIGHBORS FOR NEIGHBORS INC; PUBLIC CITIZEN INC
Plaintiffs - Appellants
v.
ALCOA INC
Defendant - Appellee
______________
07-50820
______________
United States Court of Appeals
Fifth Circuit
F I L E D
June 24, 2008
Charles R. Fulbruge III
Clerk

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2
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
ALCOA INC;
Defendant - Appellee
v.
NEIGHBORS FOR NEIGHBORS INC; PUBLIC CITIZEN INC
Appellants
________________________________________________________________________
NEIGHBORS FOR NEIGHBORS INC; PUBLIC CITIZEN INC
Plaintiffs - Appellants
v.
ALCOA INC
Defendant - Appellee
Appeals from the United States District Court
for the Western District of Texas
Before KING, HIGGINBOTHAM, and SOUTHWICK, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Alcoa produces from lignite fuel its own electricity for an aluminum plant
in central Texas. Three citizen groups sued Alcoa for alleged violations of the

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3
Clean Air Act. The United States government also sued Alcoa. The suits were
consolidated, and the district court entered a consent decree agreed to by all
parties. Alcoa elected an option under the decree that permitted construction of
a new power plant unit with specified emissions limitations. Sandow contracted
to build the new unit and joined the decree. Alcoa failed to meet the decree
deadline for commencing operation of the new plant. Over the citizen groups’
objection, the district court entered an order agreed to by the government and
Alcoa, giving Alcoa more time to build the plant and commence operation but
enforcing other aspects of the construction and operation requirements. The
order required more pollution control technology and stricter emissions
limitations than originally agreed to, if the lower emissions rates were
achievable. The citizen groups appealed.
I
Alcoa, under a voluntary emissions reduction permit approved and issued
by the Texas Commission on Environmental Quality, operates an aluminum
smelting plant in Rockdale, Texas, producing its own electricity for the plant.
Neighbors for Neighbors, Inc., Environmental Defense, and Public Citizen, Inc.
(“citizen plaintiffs”) brought a citizen suit against Alcoa alleging violations of the
Clean Air Act, and the United States filed its own claims. The complaints
alleged, inter alia, that Alcoa modified three lignite-fired boilers at its plant
without first obtaining pre-construction permits. The cases were consolidated,
and the parties eventually agreed to a detailed consent decree, which the district
court entered. The decree gave Alcoa three options: Alcoa could A) retrofit its
existing plant technologies, labeled as the existing “Sandow units,” B) build a
new power plant (“replacement units”) under an amended voluntary emissions
reduction permit issued by the TCEQ, or C) shut down the existing plant and
purchase electricity on the open market or build a new plant after obtaining a

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1 Option C does not specify how Alcoa would obtain electricity after shutting down its
plant, but these were the likely alternatives following shut-down.
2 Paragraph 3 of the decree provides, inter alia, “The Court shall retain jurisdiction of
this case after entry of this Consent Decree . . . to take any action necessary or appropriate for
its enforcement, interpretation, execution, modification, or adjudication of disputes.”
3 Paragraph 161 of the decree provides that the decree “may be modified only by a
subsequent written agreement signed by all the Parties and approved by the Court.”
4 The decree states, “Regardless of the emission rates and other limitations set forth in
the Permit Amendment issued by TCEQ, Alcoa shall operate its Replacement Sandow Units
to achieve and maintain 30-Day Rolling Average Emission Rates that are no less stringent
than the following . . . : 0.10 lbs/mmBTU NOx, 0.20 lbs/mmBTU SO2, and 0.015 lbs/mmBTU
PM [particulate matter].”
4
new permit from the TCEQ.1 The decree also gave broad enforcement powers2
to the district court and required any modifications to be in writing and agreed
to by all parties.3 Alcoa chose Option B, which set deadlines for Alcoa to
commence construction of replacement units at the plant, to shut down existing
boilers, and to commence operation of the new units. Option B also specified
emissions rate limits for the new plant4 and incorporated the emission rates and
limitations of Alcoa’s amended voluntary emissions reduction permit into the
decree.
Alcoa set out to construct a plant that would produce electricity for its
facility and additional power to sell on the open market. After briefly
commencing construction of one new facility, it changed course and entered into
a contract with TXU Sandow Development Company, which later joined the
consent decree, to build the replacement units. Facing a delay in construction
and operation, Alcoa requested and received from the TCEQ an extension of the
construction deadline in its amended voluntary emissions reduction permit. It
also twice petitioned the court to modify or construe the deadlines within the
decree; the court denied these petitions.
Having failed to meet Option B’s operation deadline, Alcoa negotiated a
stipulated order with the government. The order was amended following a

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5 The decree required commencement of operation of the first replacement unit by April
25, 2007, while the stipulated order set a deadline of August 31, 2009.
6 The decree required Alcoa to shut down the existing units by April 25, 2007, while the
stipulated order set a shut-down deadline of December 31, 2006.
7 The order provided, “Beginning on February 28, 2011, Alcoa and TXU Sandow shall
achieve and maintain at Sandow Unit 5 a 30-day Rolling Average Emission Rate for NOx
[nitrogen oxides] of 0.080 lbs/mmBTU, unless Alcoa and TXU Sandow demonstrate that it is
infeasible to achieve and maintain such a rate . . . . If Alcoa and TXU Sandow demonstrate
that it is infeasible to maintain . . . [an emission rate] of 0.080 lbs/mmBTU, Alcoa and TXU
Sandow shall submit to the Plaintiffs for review and approval an alternative NOx emission
rate, which in no case shall be less stringent than 0.100 lb/mmBTU [the rate in the original
Consent Decree].” The order made similar provisions for other emissions controls, stating, for
example, in Paragraph 12, “From August 31, 2009, through February 28, 2011, Alcoa and TXU
Sandow Alcoa shall . . . implement a program to optimize SO2 reductions at Sandow Unit 5,
in addition to any other SO2 emission reduction measures set forth in the Consent Decree.”
5
public comment period and then entered by the district court over citizen
plaintiffs’ objections. The government, Alcoa, and Sandow agreed to
approximately $1.8 million in penalties. Additionally, the stipulated order
extended Alcoa’s deadline for commencing operation of the new plant by
approximately two and one-half years.5 It required that the existing plant shut
down earlier than originally required by the decree6 and set stricter emissions
limits for the new facility, provided they were achievable.7 Finally, the order
required installation of an additional piece of pollution reduction equipment, a
selective catalytic reduction system to reduce nitrogen oxide emissions. The
district court entered an amended order accepting the stipulated order with its
stipulated penalties, incorporating the order into the consent decree, finding
Alcoa to be in contempt of the decree, and assessing penalties and attorney’s fees
as a remedial measure for the contempt.
In the meantime, Alcoa applied to the TCEQ to build a plant with a
megawatt capacity exceeding its voluntary emissions reduction permit. Plaintiff
citizens argued before the district court that this violated the terms of the
consent decree, as the consent decree incorporated all of the permit terms,

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No. 07-50706, 07-50820
8 Before the district court, Alcoa disputed whether it had missed the construction
deadline but conceded that it would not meet the deadline for operation.
6
including the lower megawatt capacity. The district court held that the issue
was for the state administrative process, not a federal forum. Plaintiff citizens
appealed from this ruling and from the district court’s entry of the stipulated
order, urging that the order was a modification of the consent decree not agreed
to in writing by all parties. At oral argument, citizen plaintiffs abandoned the
issue of whether the higher megawatt capacity violated the consent decree and
whether the court erred in holding that the issue was properly for the state
administrative forum. This leaves us with the question of whether the court’s
acceptance of the stipulated order was a modification of the decree or a remedy
and, if a remedy, whether the court abused its discretion in entering the
provisions agreed to in the stipulated order.
II
Consent decrees are both contracts and legal instruments. In bargaining
for the consent decree, citizen plaintiffs promised not to sue Alcoa provided it
met the decree requirements, and Alcoa promised to meet the obligations of the
decree option that it would elect to follow in order to reduce plant emissions.
The contested decree provision is the deadline for commencing plant operation
contained within Option B of the decree.8 As we have discussed, Option B
provided that Alcoa would construct and operate a replacement unit under an
amended voluntary emissions reduction permit to be approved by the TCEQ, and
would meet specified emission rates in operating the new unit. Option B
incorporated into the decree the emissions rates and limitations that would be
part of Alcoa’s amended voluntary emissions reduction permit, as well as any
limitations contained within subsequent amendments to that permit. Finally,
it required that Alcoa commence construction of the first replacement unit

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9 The district court order accepting the stipulated order found that the parties all agreed
that Alcoa had failed to meet the operation deadline but disputed whether it had missed the
construction deadline. The district court did not determine Alcoa’s liability with respect to the
construction deadline issue.
10 The order provided, “By no later than August 31, 2009, Alcoa and TXU Sandow shall
commence commercial operation of the Replacement Sandow Unit in accordance with the 2003
Voluntary Emissions Reduction Permit (‘VERP Permit’) issued by the Texas Commission on
Environmental Quality (‘TCEQ’) in 2003 and Subsection C (Installation of Replacement
Sandow Units – Option B) of Section IV (Pollution Controls and Reductions) of the Consent
Decree.”
11 The order provided, “By December 31, 2006, Alcoa shall have completed a permanent
shutdown of Sandow Units 1, 2, and 3 at Alcoa’s Rockdale, Texas facility (the ‘Existing Sandow
Units’) such that those units may not be operated again.”
12 Paragraph 3 of the consent decree provides,
The Court shall retain jurisdiction of this case after entry of this Consent
Decree to enforce compliance with the terms and conditions of this
Consent Decree and to take any action necessary or appropriate for its
enforcement, interpretation, execution, modification, or adjudication of
disputes. During the term of this Consent Decree, any Party may apply
to the Court for any relief necessary to construe or effectuate this consent
decree.
7
within 19 months after the issuance of Alcoa’s amended permit and commence
operation within 43 months of issuance.
Alcoa failed to meet the operation deadline.9 Pursuant to the stipulated
order accepted by the court, Alcoa agreed to construct replacement units under
its amended voluntary emissions permit, as originally required by Option B.10
The order required Alcoa to commence operation of the new unit approximately
two and one-half years later than Option B’s deadline. Alcoa also committed to
shut down its existing units earlier than originally required by Option B,11
construct an additional pollution control device not originally included within
Option B, and to further reduce emissions where feasible.
In accepting the order, the court held that it was implementing a remedy,
not modifying the decree. We are not persuaded that this was an erroneous legal
conclusion. The court, as permitted by the decree12 and its inherent power to

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No. 07-50706, 07-50820
13 The stipulated order accepted by the court requires that “[b]y January 31, 2008, Alcoa
and TXU Sandow shall deliver and unload the second of two boiler steam drums to the
construction site for Sandow Unit 5 . . . . By no later than August 31, 2009, Alcoa and TXU
Sandow shall commence commercial operation of the Replacement Sandow Unit in accordance
with the 2003 Voluntary Emissions Reduction Permit . . . issued by the Texas Commission on
Environmental Quality . . . in 2003 and Subsection C (Installation of Replacement Sandow
Units – Option B) of Section IV (Pollution Controls and Reductions) of the Consent Decree.”
14 Plaintiff citizens argue that the question is not whether the controls within the
stipulated order are stricter than those originally provided for in Option B but rather whether
they are stricter than the controls that would likely result if Alcoa were required to obtain a
prevention of significant deterioration permit. We do not address this issue, as we do not hold
that Alcoa’s failure to meet the deadline in Option B forced an immediate reversion to Option
C. Rather, the question is whether the court adequately remedied Alcoa’s failure to meet one
provision within Option B, as we will discuss.
15 See, e.g., WILLISTON ON CONTRACTS § 44:54 (discussing how courts, in considering
substantial performance, consider, among other things, “the degree to which the purpose of the
contract is defeated” and “the ease of correction”). The principles of avoiding forfeiture are also
instructive. See RESTATEMENT (SECOND) OF CONTRACTS § 229 (“To the extent that a
non-occurrence of a condition would cause disproportionate forfeiture, a court may excuse the
non-occurrence of that condition unless its occurrence was a material part of the agreed
exchange.”). We recognize that “the rule [of substantial performance] does not apply where
the deviations from the contract are such that an allowance out of the contract . . . would not
give the other party essentially what he contracted for.” WILLISTON ON CONTRACTS § 42:4. As
we have discussed, citizen plaintiffs get all of the emissions reductions guaranteed under
Option B, as well as the same plant guaranteed under that option. The difference is that the
controls will commence at a later date, and the court has attempted to compensate for that
8
enforce that instrument, implemented a remedy that addressed one party’s
noncompliance with one of the decree’s promissory terms. Although Alcoa
missed the deadline originally agreed to and the stipulated order extended the
deadline, the order accepted by the court substantially complies with the
requirements that the parties originally bargained for under Option B of the
consent decree. It gives Alcoa more time to construct the new units and begin
operating them,13 but the remainder of Option B remains in tact, with stricter
pollution controls.14 The contract doctrine of substantial performance with its
offering of remedies short of a rescission of the contract informs the question of
whether the district court “modified” the decree or offered a remedy for the
failure to meet the construction deadline – the question we now turn to.15

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No. 07-50706, 07-50820
difference by requiring earlier shut-down of the existing plant, installation of an additional
pollution control device, and stricter emissions rates. “The principle [of substantial
performance, which is not a de minimis principle]. . . clearly recognizes that the plaintiff's
departure from full performance has been of such pecuniary consequence that a deduction
must be made for the injury to the defendant.” Id. The court has made such deductions by
accepting the additional emissions controls in the stipulated order.
9
Citizen plaintiffs urge that the court’s actions were a modification, not a
remedy. In failing to meet the terms of Option B, they argue, Alcoa was left to
follow Option C – to shut down and obtain power from the market, or obtain a
new permit to construct a new power plant. However, the decree provides a
remedy of monetary penalties. It does not set forth the course of action that
Alcoa must follow if it failed to meet one of Option B’s provisions. Instead, it
states,
Within twelve (12) months of the issuance of the Permit
Amendment, Alcoa shall select one of the three pollution reduction
options set forth below . . . and shall notify the Plaintiffs and TCEQ
in writing as to which option Alcoa has selected for these Units. . .
. After providing Plaintiffs and TCEQ with written notice of its
selected approach, Alcoa shall implement the selected approach in
compliance with the schedule set forth in this Consent Decree for
that selected approach.
Rather than setting forth alternative requirements that would apply if
Alcoa failed to meet the terms of its selected option, the decree then lists the
specific terms of each option. Following the three options, the decree specifies
interim pollution reduction measures, emissions monitoring requirements,
limitations on Alcoa’s use or sale of emission allowances if it participated in an
emissions trading program, and other emission and permit requirements. Next,
the decree provides that if Alcoa complied with the decree, it would not be liable
for civil violations that occurred prior to the decree. It then sets forth citizen
plaintiffs’ commitments, stating that following the entry of the decree, “[a]s long
as Alcoa remains in compliance with the deadlines . . . the Plaintiffs covenant

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16 See, e.g., United States v. Chromalloy Am. Corp., 158 F.3d 345, 350 (5th Cir. 1998).
10
not to sue Alcoa and its successors and assigns for civil claims . . . at the Existing
Sandow Units or Replacement Sandow Units” for certain physical changes.
Next, the decree lists requirements for period reporting, environmental
mitigation projects, and civil penalties to be paid by Alcoa. The only provisions
addressing the consequences of Alcoa’s failure to meet the terms of the elected
option – apart from the Force Majeure clause and provisions for dispute
resolution – appear after the civil penalties, in the “Stipulated Penalties” portion
of the decree.
The “Stipulated Penalties” section provides, inter alia, that if Alcoa failed
to “commence physical, on-site construction” of the control devices under Option
A or Option B, or failed to shut down the devices according to schedule as
required by Option C, that Alcoa would pay either $2,500 per day directly to the
United States for each day that it failed to meet the construction or shut-down
schedule, or $5,000 per day into an escrow account. This section does not
provide that Alcoa would lose its elected option if it failed to meet the schedule
contained within that option.
In the absence of any provision stating that Alcoa would be forced to revert
to an alternative option if it failed to meet the schedule of the option that it
selected, we are not persuaded that the court’s entry of the stipulated order,
establishing new deadlines under Option B and specifying new emission rates,
was a modification of the decree. Rather, it was a remedy for Alcoa’s failure to
meet one obligation under Option B, namely the deadline for commencing
operation of the new power unit.
Courts should not impose their own terms within a consent decree and
should read consent decree terms by their plain meaning.16 At the same time,
consent decrees are more than contracts. They are also enforceable judicial

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17 Id.
18 559 F.2d 270, 271 (5th Cir. 1977).
19 845 F.2d 545, 546 (5th Cir. 1988).
20 Id. at 547.
21 Id. at 549.
11
orders. Nothing in the plain meaning of the decree requires Alcoa to revert to
Option C if it violates one obligation of Option B, the option it elected to follow.
And the cases cited by citizen plaintiffs for the proposition that courts are to
interpret decrees by their terms and enforce them as such are not inevitably in
tension with a court’s efforts to construct and implement a remedy for violation
of a consent decree. In United States v. Chromalloy American Corp., one party
to a consent decree attempted to partially reimburse the other party, despite a
provision of the decree requiring full reimbursement. We read the decree by its
plain meaning and held that full reimbursement was required.17 This does not
conflict with the district court’s holding in the present case, holding Alcoa in
contempt for violating the decree terms and implementing remedies to
counteract contempt. Nor does Cook v. Ochsner Foundation Hospital, where we
affirmed a district court’s order of contempt for violation of a consent decree and
assessment of attorney’s fees, damages, and costs to the wronged party.18
Similarly, in Ho v. Martin Marietta Corp., a worker settled with an employer
and, in a consent decree, gave up his rights to bring any future claims against
the employer arising from his employment and termination of employment.19 Ho
then attempted to bring a workers’ compensation claim, and a magistrate judge
held him to the terms of the decree, requiring him to drop the claim or return the
money that he had received in exchange for settlement.20 We affirmed.21
These cases reinforce the principle that district courts have the power and
ordinarily must hold parties to the terms of a consent decree. The district court,

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22 Id. at 548.
23 Id. at 549.
24 559 F.2d at 272.
25 Id.
26 369 F.3d 508, 510-11, 513-516 (6th Cir. 2004).
12
in holding Alcoa in contempt for failing to meet a deadline within the decree and
then issuing a remedy, did not violate this core principle. And by these cases,
district courts have wide discretion to enforce decrees and to implement
remedies for decree violations. In Ho, we held that “[o]nce the district court
enters the settlement as a judicial consent decree ending the lawsuit, the
settlement takes on the nature of a judgment”22 and that “the district court’s
decision to discourage Ho’s worker’s compensation claim was . . . a common
exercise of a federal court’s right to protect its own final judgments.”23 And in
Cook we held, “Courts have, and must have, the inherent authority to enforce
their judicial orders and decrees in cases of civil contempt. Discretion . . . . must
be left to a court in the enforcement of its decrees.”24 In Cook we further
observed that “[i]n ordering the award of attorneys’ fees . . . the court is merely
seeking to insure that its original order is followed.”25 By definition, the district
court in this case could not order compliance with the original schedule after
Alcoa failed to meet it.
That said, in certain contexts, establishing a new deadline under a decree,
as the court did here as part of its remedy, can be a modification. In United
States v. Wayne County Michigan, for example, the Sixth Circuit affirmed the
district court’s denial of a motion to extend by a year the county’s deadline for
sealing a sewage bypass point, finding no changes in factual circumstances or in
law to justify the requested modification.26 In United States v. Krilich, a
developer’s failure to commence excavation and grading of a wetland to mitigate

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27 126 F.3d 1035, 1036-37 (7th Cir. 1997).
28 Id. at 1036.
29 Am. Airlines, Inc. v. Allied Pilots Ass’n, 228 F.3d 574, 578 (5th Cir. 2000) (citing
Martin v. Trinity Indus., Inc., 959 F.2d 45, 46 (5th Cir.1992)) (“We review contempt findings
and damage awards for contempt for abuse of discretion.”).
30 Emphasis added.
13
the impacts of the development was an improper attempt to modify the decree,
where the Government had made “clear statements” “that it was not relieving
him of deadlines.”27 In that case, the issue was whether the Government had
implicitly extended the deadlines “through its course of conduct,” an argument
that the Seventh Circuit rejected.28 Here, however, the deadline for operation
is one provision within a broader, comprehensive requirement for the
construction of a new power plant. The district court’s entry of the stipulated
order as a remedy, maintaining most obligations of that comprehensive
requirement and strengthening some, was not in error.
III
We turn now to the court’s discretion in implementing the remedy,29 and
find no abuse of that discretion.
The decree gave the court broad enforcement powers, providing
in paragraph 3,
The Court shall retain jurisdiction of this case after entry of this
Consent Decree to enforce compliance with the terms and conditions
of this Consent Decree and to take any action necessary or
appropriate for its enforcement, interpretation, execution,
modification, or adjudication of disputes. During the term of this
Consent Decree, any Party may apply to the Court for any relief
necessary to construe or effectuate this Consent Decree.30

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31 United States v. Swift & Co., 286 U.S. 106, 114 (1932).
32 United States v. Cty. of Jackson, 359 F.3d 727, 732 (5th Cir. 2004); see also
Chromalloy, 158 F.3d at 349 (citations omitted) (“A consent decree is akin to a contract yet also
functions as an enforceable judicial order.”); Baylor v. United States Dep’t of Housing and
Urban Dev., 913 F.2d 223, 225 (5th Cir.1990) (citations omitted) (holding that “[a] consent
decree is a judicial order”).
33 Cty. of Jackson, 359 F.3d at 732.
34 See Swift, 286 U.S. at 115 (“We reject the argument . . . that a decree entered upon
consent is to be treated as a contract and not as a judicial act.”).
35 Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559, 577 (5th Cir. 2005).
36 Id. at 570, 578-79 (discussing how the district court’s injunction denied the motion
for sanctions and contempt but issued other remedies that built on the court’s original
injunction, and partially affirming the district court’s order).
14
In addition to this express authority, the district court has powers
“inherent in the jurisdiction of the chancery” to effectuate a consent decree.31 As
we have held in addressing a district court’s finding of contempt and imposition
of attorney’s fees and costs under a consent decree,
Consent decrees have elements of both contracts and judicial
decrees. A consent decree embodies an agreement of the parties and
is also an agreement that the parties desire and expect will be
reflected in, and be enforceable as, a judicial decree that is subject
to the rules generally applicable to other judgments and decrees.32
By striking a deal with Alcoa and the government in the consent decree, plaintiff
citizens “bound . . . [themselves] to an enforceable judicial order.”33 Consent
decrees are judgments despite their contractual nature,34 and district courts may
fashion remedies to “enforce prior judgments.”35 These remedies need not match
those requested by a party or originally provided by the court’s earlier
judgment.36
Citizen plaintiffs argue that the court, in extending the operation deadline
under Option B, “rewarded – rather than purged – Alcoa’s contempt.” To the

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No. 07-50706, 07-50820
37 We review the facts supporting a district court’s contempt order for clear error, and
the conclusions of law de novo. See Am. Airlines, 228 F.3d at 578 (citing Petroleos Mexicanos
v. Crawford Enters., Inc., 826 F.2d 392, 401 (5th Cir.1987)) (“The district court’s underlying
findings of fact are reviewed for clear error and its underlying conclusions of law reviewed de
novo.”).
38 The court ordered separate monetary penalties specifically to “purge . . . [Alcoa’s]
contempt.” With respect to the stipulated order it found, “[T]he environmental improvements
mandated by the Stipulated Order are substantial and include a legally enforceable
commitment to install new emission control technology at a plant not even addressed by the
Consent Decree, as well as legally enforceable commitments to optimize emissions controls at
the Replacement Sandow Unit to the lowest possible levels.” 2007 WL 628710 at *5. The
record shows that Option B requires 30-Day Rolling Average Emission Rates of 0.10, 0.20, and
0.015 lbs/mmBTU of NOx, SO2, and particulate matter, respectively. The stipulated order sets
lower 30-Day Rolling Average Emission Rates of 0.08 and 0.150 lbs/mmBTU for SO2 and NOx,
provided they are feasible, and requires Alcoa and TXU to demonstrate the infeasibility of
these rates if they believe that they are not achievable, in which case Alcoa and TXU Sandow
“shall submit to the Plaintiffs for review and approval of an alternative . . . emission rate,
which in no case shall be less stringent” than the rate provided for in the consent decree. The
stipulated order also requires installation and operation of a selective catalytic reduction
system, Sandow Unit 4, while Option B of the consent decree does not have this requirement.
Plaintiffs argue that the relevant issue is whether the stipulated order imposes stricter
emissions limitations than would have Option C, had Alcoa been forced to follow that option
after it violated one provision of Option B. As we have discussed, a violation of one provision
of Option B did not force reversion to Option C, so the comparison is unnecessary.
39 The court found, “These improvements will require a significant outlay of time and
expense by Defendants . . . .” 2007 WL 628710 at *5. This is not clearly erroneous in light of
the additional pollution control system that Alcoa must install as well as the stricter emissions
rates and earlier shut-down deadline that it must meet under the stipulated order.
15
contrary, the district court found, without clear error,37 that the additional
remedies imposed under Option B by the stipulated order, including a pollution
reduction unit, an earlier shut-down deadline, and more stringent emissions
limitations than originally provided for in the option, reduced more emissions
than did the original Option B38 and imposed substantial burdens on Alcoa.39
Nor did the district court rely on erroneous legal conclusions in implementing
the remedy.
AFFIRMED.

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