concurring in part and dissenting in part.
I concur with the excellent factual analysis and conclusion of the majority in Parts I and II of the opinion. However, I would affirm the district court in the full assessment of penalties as being not clearly erroneous. I would find, as did the district court, that the position of National with respect to alleged ambiguity in Paragraph V.C.3 is after-the-fact rationalization by ingenious lawyers.
I would hold that National made a business decision to take a calculated risk. National risked the imposition of $5 million in penalties against $16 million in capital outlay plus $2 million a year operating cost thereafter. It lost the gamble.
Although $5 million in penalties seems harsh, penalties of this magnitude are necessary to counterbalance the gains available to those who refuse to comply with clean air standards, and to protect the public from the demonstrated hazards of pollution of the environment. I fully sympathize with the problems of an endangered company in an industry which has become uncompetitive. I particularly sympathize with the National and other steel company employees whose lives and expectations are shattered by the malaise of the American steel industry. These are public policy matters which are not the province of the courts. Here we are faced with the provisions of a consent decree, entered into voluntarily, by competent corporate officers. I would enforce it.