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
No. 07-50706, 07-50820

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
No. 07-50706, 07-50820

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 ofthe

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
No. 07-50706, 07-50820

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
No. 07-50706, 07-50820

5 The decree required commencement of operation ofthe 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 andTXU

Sandow Alcoa shall . . . implement a program to optimize SO2reductions 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.5It 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 ofthe 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,
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 permitto 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
No. 07-50706, 07-50820

9The district court order accepting the stipulated order found thatthe 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 ofthe Replacement Sandow Unitin 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 ofthis case after entry ofthis 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 Courtfor 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
No. 07-50706, 07-50820

13The 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 ofthe 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 ofthe

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
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 thatfollowing the entry ofthe decree, “[a]s long

as Alcoa remains in compliance with the deadlines . . . the Plaintiffs covenant
No. 07-50706, 07-50820

16 See, e.g., United States v. Chromalloy Am. Corp., 158 F.3d 345, 350 (5th Cir. 1998).

10

notto sue Alcoa and its successors and assigns for civil claims . . . atthe 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
No. 07-50706, 07-50820

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 ofthe 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,
No. 07-50706, 07-50820

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 contemptfor 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.”24In 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
No. 07-50706, 07-50820

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
No. 07-50706, 07-50820

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 ofthe 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 governmentin 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 thatthe court, in extending the operation deadline

under Option B, “rewarded – rather than purged – Alcoa’s contempt.” To the
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,37that 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 B

38 and imposed substantial burdens on Alcoa.39

Nor did the district court rely on erroneous legal conclusions in implementing

the remedy.

AFFIRMED.