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UNITED STATES v. WHEELING-PITTSBURGH STEEL CORP.

June 2, 1986

UNITED STATES OF AMERICA, Plaintiff
v.
WHEELING-PITTSBURGH STEEL CORPORATION, Defendant



The opinion of the court was delivered by: TEITELBAUM

 TEITELBAUM, Judge

 The Environmental Protection Agency (EPA) moves for civil contempt and to enforce judgment alleging violations of emission standards set forth in the second amendment to the consent decree by Wheeling-Pittsburgh Steel Corporation (Wheeling-Pitt) at its Follansbee, West Virginia coke plant.

 To produce coke, coal is first deposited in coke ovens in a "charging" process using a "larry car." The coal is then heated in the ovens in a "coking" process. The coke is then "pushed" from the ovens into cars. Each of these steps produces visible emissions which are addressed in the second amendment.

 1. Demonstration of compliance with door emission standard

 The second amendment required a demonstration of compliance with the coke oven door emission standard. It required, in sum, a 30 day showing that no more than 10% of the doors were leaking. EPA rejected Wheeling-Pitt's purported demonstration of compliance because 1) the tests were conducted at a time when the coke ovens were operating at lower than normal production rates; 2) Wheeling-Pitt took the benefit of two doors representing the last oven charged, although only one door was observed; and 3) exceedences over 10% were rounded down to 10%.

 a. Production rates

 EPA rejected Wheeling-Pitt's purported demonstration of compliance with the coke oven door emission standard, in part, because the tests were conducted at a time when the coke ovens were operating at less than their normal maximum production rates. The normal maximum production rates for coke oven batteries 1, 2 and 3 are approximately 17-18 hours coking time; the normal maximum production rate for coke oven battery 8 is approximately 16-17 hours coking time. At the time the demonstrations of compliance were conducted batteries 1, 2 and 3 were operating at approximately 36-38 hours coking time and battery 8 was operating at approximately 22-32 hours coking time.

 The second amendment does not expressly require that the coke oven door demonstration of compliance be conducted at any particular level of operation. It is EPA's position that the requirement that the coke oven door demonstration of compliance be conducted with the batteries operating at their normal maximum production rates is an implied term in the second amendment. EPA contends this requirement is an implied term in the second amendment based on the self-evident purpose of a demonstration of compliance and based on the provision of the second amendment relating to stack tests. The provision of the second amendment relating to stack tests required an evaluation of visible emissions and required that the facility be operated at the normal maximum production rate during a stack test.

 A consent decree is to be construed for enforcement purposes basically as a contract. U.S. v. ITT Continental Baking Co., 420 U.S. 223, 238, 43 L. Ed. 2d 148, 95 S. Ct. 926 (1975). The second amendment cannot fairly be read to imply a particular level of operation for the coke oven door demonstration of compliance. The provision that the facility be operated at the normal maximum production rate during a stack test indicates nothing about the door emission demonstration of compliance. If any inference could be drawn from the express provision of a level of operation for the stack test, it would be that the silence of the second amendment as to a level of operation for the door emission demonstration of compliance meant that no particular level was required.

 A decree must be construed as it is written. Id. at 236. The parties to a decree generally have opposing purposes and the resultant decree embodies as much of those opposing purposes as the parties have the bargaining power and skill to achieve. Id. at 235-236. It is undoubtedly true that the purpose of the coke oven door demonstration of compliance would have been better served if the test had been conducted with the batteries operating at their normal maximum production rates. But the decree is not so written.

 Accordingly, the fact the tests were conducted at a time when the coke ovens were operating at less than their normal maximum production rates does not invalidate the coke oven door demonstration of compliance under the terms of the second amendment.

 b. Formula for calculating compliance

 EPA rejected Wheeling-Pitt's demonstration of compliance with the coke oven door emission standard, in part, because Wheeling-Pitt took the benefit of two doors representing the last oven charged, although only one door was observed.

 Compliance with the coke oven door emission standard is measured by a formula which expresses, in a percentage, the number of doors observed leaking as compared to the number of doors actually observed.

 The two doors on either side of the last oven charged are assumed to leak emissions. Therefore in making this calculation the two doors representing the last oven charged are subtracted from the number of doors observed leaking.

 At most coke oven batteries, including battery 8 at Follansbee, door emission surveys involve observations of doors on both sides of the battery. However, batteries 1, 2 and 3 at Follansbee have a "shed" installed on one side of the battery, which permanently obstructs observation of those doors. Therefore in making this calculation the doors under the shed are not counted.

 In its demonstration of compliance at battery 8, where the doors on both sides of the coke ovens were observed, Wheeling-Pitt correctly used the formula to subtract two doors from the doors observed leaking to represent the last oven charged. However, at batteries 1, 2 and 3, where doors on one side of the coke ovens were obstructed by the shed, Wheeling-Pitt continued to subtract two doors from the doors observed leaking to represent the last oven charged, in spite of the fact that only one door on the last oven charged was observed, the other door being obstructed by the shed.

 Applying the formula set forth in the second amendment, four door emission surveys at battery 1 and two door emission surveys at battery 2 exceeded the emission standard.

 c. Rounding down

 Compliance with the coke oven door emission standard required that the percentage of doors leaking, as calculated in the manner discussed above, at part 1.b. did not exceed 10%. The second amendment did not authorize Wheeling-Pitt to "round down" small exceedences to 10%. Five door emission surveys at ...


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