United States v. MS Commission, et al
Filing
22
ORDER granting 19 Joint Unopposed Motion to terminate consent decree Signed by District Judge Henry T. Wingate on 1/25/2019 (CGC)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
and
MISSISSIPPI COMMISSION ON
ENVIRONMENTAL QUALITY
WEST VIRGINIA DEPARTMENT OF
ENVIRONMENTAL PROTECTION,
No. 3:03-CV-01140-HTW
Plaintiff-Intervenors,
v.
ERGON REFINING, INC.
and
ERGON-WEST VIRGINIA, INC.,
Defendants.
ORDER
Before this court is the Joint Unopposed Motion to Terminate Consent Decree filed by
Defendants Ergon Refining, Inc. (“ERI”) and Ergon-West Virginia, Inc. (“EWVI”), the
Plaintiff the United States of America, and Plaintiff-Intervenors the West Virginia Department
of Environmental Protection and the Mississippi Commission on Environmental Quality, an
agency of the state of Mississippi (collectively, “the Movants”). The parties also filed a
Memorandum in Support of the Joint Unopposed Motion to Terminate Consent Decree.
The Defendant ERI operates a refinery at Vicksburg, Mississippi, and EWVI operates
a refinery at Newell, West Virginia. Plaintiff and Plaintiff-Intervenors sought civil penalties
and injunctive relief from the Defendants ERI and EWVI, collectively referred to as “Ergon.”
The parties jointly move for termination of the Consent Decree entered on December 31. 2003
[doc. no. 12], in the above-captioned matter. The facts as stipulated by the parties in their
joint motion are as follows.
I. STATEMENT OF FACTS
“On December 31, 2003, this Court entered the Ergon Consent Decree (Dkt. No. 12),
resolving the United States’ and the Plaintiff-Intervenors’ claims for civil penalties and
injunctive relief for alleged violations of the Clean Air Act at the Vicksburg Refinery and the
Newell Refinery. Paragraph 81 of the Ergon Consent Decree establishes the requirements for
termination of the Consent Decree, and states as follows:
Provisions of this Consent Decree relating to EWV and/or ERI, as applicable, shall be
subject to termination upon motion by the United States or EWV and/or ERI (under the
conditions identified in Paragraph 81.C). EWV and/or ERI, as applicable, must have
satisfied all of the following requirements of this Consent Decree:
i. installation of control technology systems as specified in this Consent Decree;
ii. achieving compliance with all provisions contained in this Consent Decree;
iii. paying all penalties and other monetary obligations due under the terms of the
Consent Decree; no penalties or other monetary obligations due hereunder can be
outstanding or owed to the United States, West Virginia, or Mississippi;
iv. the completion of the projects set forth in Paragraphs 24 - 25;
v. the receipt of permits incorporating the surviving emission limits and standards
established under Section V [Affirmative Relief/ Environmental Projects];
vi. EPA’s receipt of the first calendar quarterly progress report following the conclusion
of the operation for at least one year of each unit in compliance with the emission limits
established herein; and
vii. EWV and ERI has certified compliance and completion pursuant to Paragraph
81.A.i-vi and 81.B.i.-iv, to the United States and the Applicable State Agency in
writing.
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Paragraph 81 of the Consent Decree also establishes the process for its termination,
stating as follows:
EWV and ERI may certify completion of one or more parts of the Consent Decree
provided all of the related requirements have been satisfied, as follows:
i. Paragraphs 11-12: Heaters and Boilers;
ii. Paragraph 14-16: Flaring Devices;
iii. Paragraph 17: Benzene NESHAP; Paragraph 18: Leak Detection and Repair
iv. Section VIII – Environmentally Beneficial Projects
Within 180 days after EWV and/or ERI, as applicable, concludes that one or more parts
of the Paragraph 81.B.i.-iv. have been completed, EWV and/or ERI, as applicable, may
submit a written report to the Parties listed in Paragraph 77 (Notice) describing the
activities undertaken and certifying that the applicable Paragraphs have been completed
in full satisfaction of the requirements of this Consent Decree, and that EWV and/or
ERI, as applicable, is in substantial and material compliance with all of the other
requirements of the Consent Decree.
ERI and EWVI have satisfied these termination requirements regarding the Vicksburg Refinery
and the Newell Refinery, respectively. In particular, on May 22, 2012, ERI and EWVI issued a certificate
of compliance and completion to the United States and Plaintiff-Intervenors pursuant to Paragraphs
81.A.i-iv and 81.B.i-iv of the Consent Decree. (See Ex. A.) This certificate stated that ERI and EWVI
have fully satisfied the applicable paragraphs of the Consent Decree and are in substantial and material
compliance with all of the other requirements of the Consent Decree.”
II. DISCUSSION
Termination of the Ergon Consent Decree, as it applies to the Vicksburg Refinery and
to the Newell Refinery, is appropriate because ERI and EWVI have satisfied all of the
requirements of the Consent Decree; have operated the Vicksburg Refinery and the Newell
Refinery in compliance with emissions limits specified in Section V of the Consent Decree for
one year prior to the certification of compliance; and have satisfied all requirements for
termination of the Consent Decree.
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A. Principles of Contract Law Compel the Termination of the Consent Decree.
The United States Supreme Court stated in United States v. ITT Continental Baking Co.,
that “a consent decree or order is to be construed for enforcement purposes basically as a
contract.” United States v. ITT Continental Baking Co., 420 U.S. 223, 238 (1975). See also Dean
v. City of Shreveport,438 F.3d 448, 460 (5th Cir. 2006)(“When interpreting a consent decree,
general principles of contract interpretation govern.”). This court, in deciding whether to
terminate the consent decree, must, as the Fifth Circuit Court of Appeals has stated, “begin by
looking to the “four corners” of the decree.” United States v. Chromalloy Am. Corp., 158 F.3d
345, 350 (5th Cir. 1998). The Fifth Circuit Court of Appeals has also stated that “[c]onsent
decrees are construed according to “general principles of contract interpretation.” Frew v. Janek,
780 F.3d 320, 327 (5th Cir. 2015). Courts are to examine the language of the contract and enforce
the objective intent evidenced by the language used. Clardy Mfg. Co. v. Marine Midland Bus.
Loans Inc., 88 F.3d 347, 352 (5th Cir.1996).
The contract in this instance is one between ERI and EWVI, the United States, and the
Plaintiff- Intervenors. The consent decree defines not only what is required to be performed by
the defendants under the contract, but the requirements for termination of the contract. The
United States Supreme Court case of United States v. Armour & Co., states, “the scope of a
consent decree must be discerned within its four corners… [T]he instrument must be construed
as it is written...” United States v. Armour & Co., 402 U.S. 673, 681-82, (1971). These
principles require that the Ergon Consent Decree be carried out in accordance with the mutual
intent of the parties, as found within the four corners of the document. Id., at 682. The parties
are in agreement that in the instant case, the consent decree, itself, establishes the conditions
required for termination and that ERI and EWVI have satisfied those conditions.
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Paragraph 81 of the Consent Decree provides that the Consent Decree shall be subject to
termination after ERI and EWVI satisfy all requirements listed therein and certify such
compliance and completion to the United States and the Plaintiff-Intervenors in writing according to
Paragraph 81.
B. ERI and EWVI Have Satisfied the Conditions of Termination.
All parties herein, by their joint order, contend that ERI and EWVI have met the above
conditions, making termination of the Consent Decree appropriate. Their joint assertions follow:
“All parties are in agreement that ERI and EWVI have satisfied the conditions of termination
for the Vicksburg Refinery and Newell Refinery. Specifically, ERI and EWVI have (1) installed
control technology systems as specified in the Consent Decree; (2) achieved compliance with all
provisions in the Consent Decree that apply to the Vicksburg Refinery and the Newell Refinery; (3)
paid all penalties and other monetary obligations due under the terms of the Consent Decree, with no
penalties or other monetary obligations outstanding or owed to the United States, West Virginia, or
Mississippi; (4) completed the Supplemental Environmental Project as set forth in Paragraphs 24
and 25 of the Consent Decree; and (5) received permits incorporating the surviving emission limits
and standards established under Section V (Affirmative Relief/ Environmental Projects). (See Dkt.
No. 12, ¶ 81.A.) Additionally, EPA has received the first progress report from ERI and EWVI
following the conclusion of the operation for at least one year of each unit in compliance with the
emission limits established under the Consent Decree. (Id. ¶ 81.A.vi.) Finally, ERI and EWVI have
certified compliance in writing for the Vicksburg Refinery and the Newell Refinery, respectively, to
the United States, the state of West Virginia, and the state of Mississippi at least 120 days prior to
moving to terminate. (Id. ¶ 81.A.vii; see also Ex. A.) Accordingly, pursuant to Paragraph 81, this
Court should grant the Parties’ Joint Unopposed Motion to Terminate the Consent Decree, as it
applies to the Vicksburg Refinery and the Newell Refinery.”
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III. CONCLUSION
For all the reasons stated, this court has determined that it is in the public interest to
terminate the Consent Decree entered in this case back on December 31, 2003 [doc. no. 12] for
ERI’s Vicksburg, Mississippi refinery and EWVI’s Newell, West Virginia refinery. ERI and
EWVI have satisfied the conditions that are required for termination, and the Plaintiff, the
United States, and the Plaintiff-Intervenors, WVDEP and MCEQ, agree and join in the motion
to seek termination. This court, therefore, grants their Joint Unopposed Motion to Terminate the
Ergon Consent Decree as to Ergon Refining, Inc. and Ergon-West Virginia, Inc.
SO ORDERED AND ADJUDGED, this the 25th day of January, 2019.
s/HENRY T. WINGATE
UNITED STATES DISTRICT JUDGE
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