Zen-Noh Grain Corporation v. Consolidated Environmental Management, Inc./Nucor Steel Louisiana

Filing 206

ORDER AND REASONS - the Court grants Zen-Noh's motion 42 to dismiss Counts I-III, Count V, and Counts VII-IX, and denies the motion to dismiss Counts IV and VI of the First Amended Complaint. The Court also denies Nucor's motion 79 for partial summary judgment.. Signed by Chief Judge Sarah S. Vance on 7/17/13.(Reference: 12-1738)(jjs, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ZEN-NOH GRAIN CORPORATION

CIVIL ACTION

VERSUS

NO: 12-1011
c/w 12-1738

CONSOLIDATED ENVIRONMENTAL
MANAGEMENT, INC. - NUCOR
STEEL LOUISIANA
THIS DOCUMENT RELATES TO MATTER 12-1738

SECTION: R(1)

ORDER AND REASONS
Plaintiff Consolidated Environmental Management, Inc.
(“Nucor”) filed this lawsuit against Zen-Noh alleging violations
of the Clean Air Act (“CAA”) and the federally enforceable
Louisiana State Implementation Plan stemming from Zen-Noh's
operation of a grain elevator in St. James Parish.1 Zen-Noh has
filed a motion to dismiss all nine counts of Nucor's First
Amended Complaint.2 Also before the Court is Nucor's motion for
partial summary judgment on the issue of whether Zen-Noh's Air
Permit has expired.3 For the foregoing reasons, the Court
dismisses Counts I-III, Count V, and Counts VII-IX and denies the
motion to dismiss Counts IV and VI of the First Amended

1

Civil Action 12-1738, R. Doc. 1 (Complaint); Civil Action
12-1011, R. Doc. 46 (First Amended Complaint).
2

R. Doc. 42.

3

R. Doc. 79.

Complaint. The Court also denies Nucor's motion for partial
summary judgment.

I.

STATUTORY BACKGROUND
Congress enacted the CAA “to protect and enhance the quality

of the Nation's air resources so as to promote the public health
and welfare.” 42 U.S.C. § 7401(b)(1). The Act is a comprehensive
program for controlling and improving the nation's air quality.
Under the Act, the Administrator of the Environmental Protection
Agency identifies air pollutants that endanger the public health
or welfare, determines what concentrations of those pollutants
are safe, and codifies those safety determinations as National
Ambient Air Quality Standards (“NAAQS”). See 42 U.S.C. §§ 7408,
7409. The Act then delegates to the states “primary
responsibility for assuring air quality” within their respective
boundaries, and requires each state to develop a State
Implementation Plan ("SIP"), “which will specify the manner in
which [the NAAQS] will be achieved and maintained.” 42 U.S.C. §
7410(a). Upon approval by the EPA, an SIP becomes federally
enforceable law. Louisiana Envtl. Action Network v. EPA, 382 F.3d
575, 579 (5th Cir. 2004); Kentucky Res. Council, Inc. v. EPA, 304
F. Supp. 2d 920, 923 (W.D. Ky. 2004); Sweat v. Hull, 200 F. Supp.
2d 1162, 1164 (D. Ariz. 2001).

2

Although the states “have ‘wide discretion’ in formulating
their plans,” Alaska Department of Environmental Conservation v.
EPA, 540 U.S. 461, 470 (2004) (quoting Union Elec. Co. v. EPA,
427 U.S. 246, 250 (1976)), the CAA mandates that all State
Implementation Plans include certain features. Of relevance here,
the Act provides that each State Implementation Plan shall “meet
the applicable requirements” of what is known as the Prevention
of Significant Deterioration of Air Quality (“PSD”) program. 42
U.S.C. § 7410(a)(2)(J); see also 42 U.S.C. § 7471. The PSD
program, which applies to areas where the ambient level of air
pollution already meets the NAAQS, see 42 U.S.C. § 7471, was
“designed to ensure that the air quality in attainment areas or
areas that are already ‘clean’ will not degrade.” Alaska
Department of Environmental Conservation, 540 U.S. at 470
(quoting BELDEN, CLEAN AIR ACT 43 (2001)). The CAA divides emission
sources into major and minor pollution sources. 42 U.S.C. §
7479(1). The PSD requirements are triggered when a stationary
source is a major source. La. Admin. Code tit. 33, pt. III, §
509. The CAA requires facilities constructing or modifying major
sources to obtain a preconstruction permit from agencies
administering EPA-approved state implementation programs. 42
U.S.C. §§ 7475(a)(1), 7479(2)(C). The PSD review process requires
a demonstration that “emissions from construction or operation of
such facility will not cause, or contribute to, air pollution”

3

above the maximum allowable increment for the local air quality
area, the national ambient air quality standards (NAAQS), or any
other applicable emission standard. Id. § 7475(a)(3).
The PSD program relates to preconstruction permits for major
sources, while Title V of the CAA deals with operating permits.
42 U.S.C. §§ 7661–7661f. As with the PSD program, Louisiana has a
corresponding Title V operating permit program (also known as the
Part 70 Permit program). La. Admin. Code tit. 33, pt. III, § 507.
It is unlawful to operate a major source without a Part 70
operating permit or to operate except in compliance with an
operating permit issued under Part 70. Id. In general, a
stationary source requires a Part 70 operating permit if it
directly emits or has the potential to emit 100 tpy or more of
any regulated pollutant. Id. at § 502. The PSD and Part 70 permit
programs are incorporated into Louisiana rules under Louisiana
Administrative Code title 33, part II, chapter 5 (“Louisiana
SIP”), which has been approved as satisfying the requirements of
the CAA, 42 U.S.C. § 7411, et seq.
The Louisiana SIP also includes regulations for issuing
permits for minor stationary sources, as well as regulations
establishing emissions standards and work practice standards.
Minor sources are facilities that emit less than a pre-identified
amount, usually 100 tons per year, of a regulated contaminant
after construction or modification. Understandably, Congress and

4

the EPA have devoted less attention to the regulation of minor
sources compared to major sources for which PSD and Part 70
apply. See Texas v. U.S. E.P.A., 690 F.3d 670, 675 (5th Cir.
2012).
The CAA contains three citizen suit provisions. One of the
provisions authorizes suits against the EPA Administrator for
alleged failure of the Administrator to perform a nondiscretionary duty under the CAA. 42 U.S.C. § 7604(a)(2). The
other two provisions allow suit in federal district court against
any person who is alleged to have violated an emission standard
of the CAA. Section 7604(a)(3) authorizes immediate suit against
any person who is alleged to be constructing or operating a major
source of emissions without or in violation of a PSD permit.
Section 7604(a)(1) permits suit based on a range of CAA
violations, including violation of PSD permits, Part 70 permits,
and the NAAQS. Although a 7604(a)(3) action can be brought
immediately, suit under the broader 7604(a)(1) requires that the
plaintiff give 60 days notice to the EPA Administrator, to the
State in which the violation occurs, and to any alleged violator
of the standard, limitation, or order. Id. § 7604(b)(1)(A).

II.

FACTUAL BACKGROUND
The parties in this case are feuding neighbors with property

next to each other on the Mississippi River in St. James Parish.

5

Nucor is constructing a steel production facility that Zen-Noh
has vigorously opposed. Zen-Noh was the first to bring the
conflict between the parties into federal court. In 2009, Zen-Noh
sought to enjoin the Louisiana Department of Environmental
Quality ("LDEQ") from issuing air permits for a pig iron plant to
Nucor. Then, in 2012, Zen-Noh sought to enjoin Nucor from
constructing the first of two direct reduced iron ("DRI") plants
under authority of other air permits issued by LDEQ to Nucor.
Zen-Noh has also contested LDEQ actions granting Nucor permits
for its steel plants and sued the EPA for objecting to, but
failing to revoke, Nucor's air permits.
To seize the offensive, Nucor filed the complaint in this
action alleging that Zen-Noh has itself run afoul of federal and
state air quality laws in the operation of its grain elevator.
Nucor issued to Zen-Noh, LDEQ, and the EPA, notice letters
relating to Zen-Noh's alleged violations of the CAA and Louisiana
SIP on April 30, 2012. Nucor filed its original complaint against
Zen-Noh on July 3, 2012. That suit, Civil Action No. 12-1738, was
consolidated with Zen-Noh's suit against Nucor under Civil Action
No. 12-1011. Zen-Noh moved to dismiss the Nucor complaint.4 Nucor
then filed its First Amended Complaint.5 The Court determined
that Zen-Noh's motion to dismiss applies to Nucor's First Amended

4

R. Doc. 42.

5

R. Doc. 46.
6

Complaint as well as its original complaint.6 On the same day
that it filed its First Amended Complaint, Nucor also provided
amended notice letters to Zen-Noh, LDEQ, and the EPA.7

A. Nucor's Allegations
Nucor's complaints allege that Zen-Noh has submitted false
information to LDEQ and improperly obtained permits for its grain
elevator facility as a minor source when it is in fact a major
source subject to Part 70 and PSD permitting programs.8 It
alleges that Zen-Noh has failed to comply even with its LDEQissued minor source permit. Nucor seeks to enjoin Zen-Noh from
operating its facility, allegedly a major source, without first
obtaining Part 70 and PSD permits and to require Zen-Noh to
comply with applicable conditions of the Louisiana SIP, the Part
70 rules, and the terms of the minor source permit ("Air Permit")
issued by LDEQ. Nucor also urges the Court to assess civil
penalties against Zen-Noh pursuant to 42 U.S.C. § 7604, and La.
Rev. Stat. §§ 30:2025 and 30:2026(A)(2).

1. Allegations that Zen-Noh is Subject to PSD and Part 70
Requirements

6

R. Doc. 101.

7

R. Doc. 46-3.

8

R. Doc. 46.
7

Nucor alleges that in 1979 Zen-Noh applied for approval of
air emissions for its grain elevator and ship loading operation
("Grain Elevator") from the predecessor to LDEQ.9 Nucor alleges
that Zen-Noh's initial application stated that the Grain Elevator
would handle, on average, 190 billion bushels of grain and grain
by-products per year and 3.1 million pounds of grain dust per
year, and would emit 1.871 pounds per hour (1.949 tpy) of grain
dust and 2.4 pounds per hour (1.73 tpy) of grain dryer
emissions.10 The application also identified the pollution
control equipment Zen-Noh would use. The Louisiana Air Control
Commission issued a minor source permit (Permit 1258) to
construct and operate the Grain Elevator on September 25, 1979.11
Nucor alleges that Zen-Noh began to operate the Grain Elevator in
1982.12
Nucor alleges that the predecessor to LDEQ inspected the
Grain Elevator on September 21, 1983, and observed that Zen-Noh
was operating a fourth shiploader.13 According to Nucor, Zen-Noh
was not permitted to operate the fourth shiploader, which had a
potential to emit particulate matter in excess of 250 tpy in

9

R. Doc. 46 at 10.

10

Id. at 10-11.

11

Id. at 11.

12

Id.

13

Id. at 12.
8

1979.14 It alleges that this shiploader rendered the Grain
Elevator a "major source" for which PSD permitting was required
before Zen-Noh could legally construct or operate it.15 Nucor
alleges that Zen-Noh has filed a series of applications to modify
its 1979 state air permit with LDEQ. It alleges that Zen-Noh
submitted a permit reconciliation application to LDEQ in 1995 and
that LDEQ issued air permit No. 2560-00005-01, which authorized
the facility to emit 106.85 tpy of particulate matter less than
10 microns in diameter (PM-10).16 Nucor asserts that after Part
70 was added to the CAA in 1990, Zen-Noh was required to submit a
Part 70 permit application by October 12, 1996, and it failed to
do so.17 It alleges that Zen-Noh lost its authorization to
operate in Louisiana at that time. Nucor alleges that Zen-Noh
sought and received permit modifications in 1998 and 1999.18 It
alleges that in June 2012, after Nucor sued Zen-Noh, Zen-Noh
submitted another permit modification application to LDEQ.19

14

Id.

15

Id.

16

Id. at 13.

17

Id.

18

Id. at 14.

19

Id. (Nucor includes in its complaint a table listing the
emissions calculations Zen-Noh submitted to LDEQ in its June 2012
modification application).
9

Nucor alleges that Zen-Noh represented in the June 2012
modification application that it would use dust collectors "to
lower its particulate emissions below 100 tpy and 250 tpy and
thus avoid major source Title V and PSD permitting requirements."
It contends that these representations are false and inconsistent
with Zen-Noh's actual emissions, "as shown by opacity
observations and by other information provided by Zen-Noh to LDEQ
in its permit applications."20 On information and belief, Nucor
alleges that "Zen-Noh has consistently emitted greater quantities
of particulate air pollution (PM and PM-10) than is allowed by
its permits, in violation of its permits as issued, and in
violation of requirements to have PSD and Title V permits."21 It
alleges that Zen-Noh's permit applications utilize incorrect
emissions factors for "PM and/or PM-10", overstate the dust
capture efficiencies of its grain handling equipment, overstate
the control efficiencies of its dust filters, and fail to include
fugitive emissions from dust not captured by its grain equipment
and other sources such as truck traffic and the excess grain
stockpile.22
Nucor includes in its First Amended Complaint a table
listing what it alleges to be "Plaintiffs' Calculations of Zen-

20

Id. at 15.

21

Id.

22

Id. at 16-17.
10

Noh's actual emissions," based on "information provided by ZenNoh in its 1995 and 2012 permit applications, corrected to
utilize appropriate emission factors, capture efficiencies, and
control efficiencies and to account for fugitive emissions from
truck traffic, scalping piles and other sources."23 The table
lists Zen-Noh's actual emissions as follows: PM-10 - 292.7 tpy;
particulate matter less than 2.5 microns (PM-2.5) - 52.6 tpy;
total suspended particulate matter (TSP) - 454.9 tpy.24 Nucor
alleges that the Grain Elevator thus meets the definition of
major stationary source under La. Admin. Code tit. 33, pt. III, §
502 because "it has actual PM/TSP emissions over 250 tons per
year (greater than the major source threshold of 100 tons per
year)."25 Nucor alleges that Zen-Noh needs a Part 70 permit and a
PSD to continue its operations.26 It alleges that LDEQ has never
issued a PSD permit or a Part 70 permit to Zen-Noh or made a
determination that Zen-Noh is a major emitting source of
pollutants.27

2. Allegations That Zen-Noh's Air Permit is Expired

23

Id. at 17.

24

Id.

25

Id. at 18.

26

Id. at 19-20.

27

R. Doc. 79 at 1 n.1.
11

Nucor alleges that Zen-Noh is operating under an expired
state air permit No. 2560-000005-05 ("Air Permit").28 It alleges
that La. Rev. Stat. § 30:2023(A) imposes a statutory ten-year
limit on Zen-Noh's permit, and that Zen-Noh has failed to submit
an application for renewal of its permit within the applicable
period.29 Nucor alleges that Zen-Noh's permit expired on July 31,
1999.30 It asserts that "Zen-Noh should be required to submit a
complete renewal application and should be prohibited from
operating until a revised permit is issued."31

3. Allegations That Zen-Noh Has violated the Terms of Its Air
Permit
Specific Condition No. 2 of Zen-Noh's Air Permit requires it
to use tarpaulins when loading ships, except during topping off
operations.32 Nucor alleges (upon information and belief) that
Zen-Noh has violated this condition on at least six specific
dates since October 28, 2010.33

28

R. Doc. 46 at 20.

29

Id.

30

Id.

31

Id. at 21.

32

R. Doc. 42-3 at 5.

33

R. Doc. 46 at 22.
12

Specific Condition No. 3 of the Air Permit requires Zen-Noh
to conduct loading and unloading operations such that they do not
cause a nuisance to the public.34 Nucor alleges that Zen-Noh
violated this condition by failing to control emissions from its
loading and unloading operations resulting in significant
dusting, which it alleges has caused a nuisance, "if not more
serious health threats from grain dust, to Consolidated-Nucor
employees and contract workers in the area of the future
Consolidated-Nucor dock facility."35
Specific Condition No. 4 of the Air Permit requires Zen-Noh
to comply with 40 C.F.R. Part 60, Subpart DD standards for
performance for grain elevators, including 20% opacity standards
for emissions.36 Nucor alleges that a third party consultant
conducted opacity readings and found "significant violations of
the 20% opacity standards."37

4. Other Allegations
Nucor alleges that Zen-Noh has not adequately categorized
Volatile Organic Compound ("VOC") and particulate matter (PM and
PM-10) emissions from its wood chip handling, storage,

34

R. Doc. 42-3 at 5.

35

R. Doc. 46 at 22.

36

R. Doc. 42-3 at 5.

37

R. Doc. 46 at 24.
13

reclamation, and transformation operations.38 It alleges that
Zen-Noh indicated in its permit modification application that
emissions from the wood chips were minimal but that "most pulp
and paper mills in the State of Louisiana and most wood yards
storing similar materials include relatively significant VOC
emissions estimates in their permits."39
Nucor also alleges that Zen-Noh's June 28, 2012, application
for a minor permit modification includes information that amounts
to admissions by Zen-Noh that many aspects of its operation have
long occurred without proper authorization in its Air Permit.40
It also alleges that Zen-Noh has failed to provide all relevant
facts, even in its most recent permit application, and that the
"submittal of incorrect information in the permit application is
a violation of La. Admin. Code tit. 33, pt. III, § 517.C, a
provision of the approved part 70 permitting program and a
violation of the current minor source permit, General Condition
I, issued under the Louisiana SIP."41

5. Claims

38

Id. at 24-25.

39

Id. at 25.

40

Id. at 25-28.

41

Id. at 29.
14

Nucor alleges nine counts in its First Amended Complaint.
Count I alleges that Zen-Noh violated the CAA and the Louisiana
SIP by operating without a Part 70 operating permit. Counts II-IV
allege that Zen-Noh violated Special Conditions 2-4 of its Air
Permit by failing to use tarpaulins when loading and unloading,
creating a dust nuisance by its unloading and loading operations,
and violating 20% opacity standards of 40 C.F.R. Part 60, Subpart
DD. Count V alleges that Zen-Noh failed to provide correct
information in its application for its Air Permit or in its
modification applications. Count VI alleges that Zen-Noh has
exceeded PM-10 limitations in violation of General Condition 1 of
the Air Permit. Count VII alleges that Zen-Noh is operating
without a required PSD permit. Count VIII alleges that Zen-Noh is
operating under an expired air permit. Count IX alleges that ZenNoh is operating the wood chip storage unit without appropriately
identifying the VOC pollutants associated with such an operation
in its permit application.

III. Legal Standard
A. Motion to Dismiss
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff
must plead "enough facts to state a claim to relief that is
plausible on its face." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1960
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547
15

(2007)). A claim is facially plausible when the plaintiff pleads
facts that allow the court to "draw the reasonable inference that
the defendant is liable for the misconduct alleged." Id. at 1940.
A court must accept all well-pleaded facts as true and must draw
all reasonable inferences in favor of the plaintiff. Lormand v.
U.S. Unwired, Inc., 565 F.3d 228, 239 (5th Cir. 2009); Baker v.
Putnal, 75 F.3d 190, 196 (5th Cir. 1996). But the Court is not
bound to accept as true legal conclusions couched as factual
allegations. Iqbal, 129 S.Ct. at 1949.
A legally sufficient complaint must establish more than a
"sheer possibility" that the plaintiff's claim is true. Id. It
need not contain detailed factual allegations, but it must go
beyond labels, legal conclusions, or formulaic recitations of the
elements of a cause of action. Twombly, 550 U.S. at 555. In other
words, the face of the complaint must contain enough factual
matter to raise a reasonable expectation that discovery will
reveal evidence of each element of the plaintiff’s claim.
Lormand, 565 F.3d at 256. If there are insufficient factual
allegations to raise a right to relief above the speculative
level, Twombly, 550 U.S. at 555, or if it is apparent from the
face of the complaint that there is an insuperable bar to relief,
Jones v. Bock, 549 U.S. 199, 215 (2007); Carbe v. Lappin, 492
F.3d 325, 328 n.9 (5th Cir. 2007), the claim must be dismissed.

16

B. Summary Judgment
Summary judgment is appropriate when “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.
1994). When assessing whether a dispute as to any material fact
exists, the Court considers “all of the evidence in the record
but refrains from making credibility determinations or weighing
the evidence.”

Delta & Pine Land Co. v. Nationwide Agribusiness

Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008). All reasonable
inferences are drawn in favor of the nonmoving party, but
“unsupported allegations or affidavits setting forth ‘ultimate or
conclusory facts and conclusions of law’ are insufficient to
either support or defeat a motion for summary judgment.” Galindo
v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985);
Little, 37 F.3d at 1075.
If the dispositive issue is one on which the moving party
will bear the burden of proof at trial, the moving party “must
come forward with evidence which would ‘entitle it to a directed
verdict if the evidence went uncontroverted at trial.’” Int’l
Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263-64 (5th
Cir. 1991). The nonmoving party can then defeat the motion by
either countering with sufficient evidence of its own, or
17

“showing that the moving party’s evidence is so sheer that it may
not persuade the reasonable fact-finder to return a verdict in
favor of the moving party.” Id. at 1265.
If the dispositive issue is one on which the nonmoving party
will bear the burden of proof at trial, the moving party may
satisfy its burden by merely pointing out that the evidence in
the record is insufficient with respect to an essential element
of the nonmoving party's claim. See Celotex, 477 U.S. at 325. The
burden then shifts to the nonmoving party, who must, by
submitting or referring to evidence, set out specific facts
showing that a genuine issue exists. See id. at 324. The
nonmovant may not rest upon the pleadings, but must identify
specific facts that establish a genuine issue for trial. See,
e.g., id. at 325; Little, 37 F.3d at 1075; Isquith ex rel.
Isquith v. Middle South Utils., Inc., 847 F.2d 186, 198 (5th Cir.
1988), cert. denied, 488 U.S. 926 (1988). Although a nonmovant’s
failure to respond to a motion for summary judgment does not
permit the entry of a “default” summary judgment, the court may
accept the movant’s evidence as undisputed. Eversley v. Mbank
Dallas, 843 F.2d 172, 174 (5th Cir. 1988).

IV.

DISCUSSION

A. Count I

18

Count I alleges that Zen-Noh is required to have a Part 70
operating permit pursuant to La. Admin. Code tit. 33, pt. III, §
507, and that it has been operating without one in violation of
the Louisiana SIP and the CAA. Zen-Noh concedes that it lacks a
Part 70 permit and argues that: 1) Nucor has failed to allege
facts indicating that Zen-Noh's grain elevator is subject to Part
70 permitting, and 2) in any event, Nucor's notice of intent to
sue was insufficient to inform Zen-Noh of the nature of the
alleged violation, and thus the Court lacks subject matter
jurisdiction to hear Nucor's citizen suit.
In general, a plaintiff must provide specific notice of
intent to sue at least 60 days before filing a citizen suit. See
Hallstrom v. Tillamook Cnty., 493 U.S. 20, 31, 110 S.Ct. 304, 107
L.Ed.2d 237 (1989). Under the Clean Air Act's citizen suit
provision, at least 60 days before filing suit, the citizen
plaintiff must give “notice of the violation (i) to the
Administrator, (ii) to the State in which the violation occurs,
and (iii) to any alleged violator of the standard, limitation, or
order” allegedly violated. 42 U.S.C. § 7604(b)(1)(A). The notice
must contain:
sufficient information to permit the recipient to
identify the specific standard, limitation, or order
which has allegedly been violated, the activity alleged
to be in violation, the person or persons responsible
for the alleged violation, the location of the alleged
violation, the date or dates of such violation, and the
full name and address of the person giving the notice.

19

40 C.F.R. § 54.3(b) (2004). Although "the notice requirement does
not demand that a citizen plaintiff “list every specific aspect
or detail of every alleged violation,” it must provide enough
information to permit the defendant to identify the standards
allegedly violated and the relevant activities with the degree of
specificity required by the regulations. Nat'l Parks &
Conservation Ass'n v. Tennessee Valley Auth., 502 F.3d 1316, 1329
(11th Cir. 2007). "The notice requirements are strictly construed
to give the alleged violator the opportunity to correct the
problem before a lawsuit is filed." Id. (citing Gwaltney of
Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 60,
108 S.Ct. 376, 98 L.Ed.2d 306 (1987)).
Nucor issued a notice of intent to sue on April 30, 2012.42
The notice letter alleged violations corresponding to Counts I-VI
in the First Amended Complaint. The relevant part of the letter
for Count I of the First Amended Complaint alleged that:
Zen-Noh should have a Title V [Part 70] operating
permit pursuant to LAC 33:III.507, but does not. In its
certified application for a minor source permit
modification in December 2001, Zen-Noh certified that
its total particulate emissions were greater than 153
tons per year. Total particulate is a regulated air
pollutant per LAC 33.III.502, definition of regulated
air pollutant. ... Zen-Noh meets the definition of
major source under LAC.33.III.502 - it has PTE
[potential to emit] for total particulate emissions of
153 tons per year (greater than 100 tons per year),
including fugitive emissions. ... Each day that Zen-Noh
has operated and continues to operate since October 12,

42

R. Doc. 46-1.
20

1996 without a Title V operating permit is a violation
of LAC:III:507, La. R.S. 30:2055 and 2057, 40 C.F.R.
70.7, and 42 U.S.C. § 7661a(a).43
Nucor argues that its letter provided sufficient notice.
Nucor points to the letter's allegation that Zen-Noh has the
potential to emit greater than 100 tons per year of total
particulate. Part 70 permitting requirements apply only to major
stationary sources, which are defined as those sources that
directly emit or have the potential to emit 100 tpy or more of
any regulated pollutant. Nucor argues that "total particulate" is
the same as total suspended particulate matter ("TSP") and that
both are regulated pollutants under Part 70. Zen-Noh argues that
Nucor's April 2012 letter was defective because total particulate
and TSP are not regulated air pollutants under Part 70, and thus
cannot trigger the Part 70 permitting requirements.44
The Louisiana SIP under Part 70 defines "regulated air
pollutants" by identifying several specific pollutants, e.g.,
nitrogen oxides and volatile organic compounds (VOCs), and
referring to categories of pollutants established by other

43

Id.

44

Zen-Noh also contends that total particulate and TSP are
not the same thing. See R. Doc. 42-1 at 3 (citing 40 C.F.R. §
51.100 which includes unique definitions for "particulate matter"
and "total suspended particulate."). Because neither particulate
matter nor TSP are regulated air pollutants under Part 70, see
infra, the Court need not discuss any differences between the two
terms.
21

statutes, e.g., pollutants for which there is a national ambient
air quality standard ("NAAQS"), pollutants which are subject to a
new source performance standard ("NPS"), pollutants subject to
review under the PSD scheme, and "pollutants listed as Louisiana
toxic air pollutants in LAC 33.III.5112, Table 51.1 or 52.3." La.
Admin. Code tit. 33, pt. III, § 502. "Particulate matter" and TSP
are not included as specifically listed pollutants or defined as
a regulated air pollutants under any of the incorporated
regulatory schemes. The EPA explained in a 1995 Guidance Opinion
that particulate matter and TSP are not regulated air pollutants
under the Part 70 operating permits program. See "Definition of
Regulated Pollutant for Particulate Matter for Purposes of Title
V," EPA-HQ-OAR-2007-0743-0001 (Oct 16, 1995), available at
www.regulations.gov/#!docketDetail;D=EPA-HQ-OAR-2007-0743. The
opinion clarified that "under the title V operating permits
program only PM-10 [particulate matter with a diameter of 10
micrometers or less] is considered by the EPA to be the regulated
form of particulate matter for applicability and fee purposes."
Id. at 1. The EPA's conclusion is based on the evolution of NAAQS
and NPS standards. Id. at 2-3. The original NAAQS for particulate
matter was promulgated in 1971 and defined ambient concentrations
of particulate matter as TSP, which included particulate matter
with a diameter of up to 45 micrometers. Id. at 2. In 1987 "the
EPA revised the NAAQS for particulate matter, replacing the TSP

22

indicator with the new PM-10 indicator." Id. The NPS standard
with respect to particulate matter is likewise PM-10, not TSP or
particulate matter. Id. at 3. Nucor fails to provide any
reasonable statutory basis to stray from the EPA's interpretation
of the Clean Air Act that PM-10 is the sole type of particulate
matter that qualifies as a regulated pollutant under Part 70. See
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467
U.S. 837, 844 (1984) ("considerable weight should be accorded to
an executive department's construction of a statutory scheme it
is entrusted to administer").
Nucor alleges in its notice letter that Zen-Noh has
potential to emit 153 tons per year of total particulate. The
basis for this allegation is Zen-Noh's 2001 application to modify
its minor source air permit with LDEQ.45 In addition to listing
the 153 tons per year figure for total particulate, that permit
application states that Zen-Noh has a potential to emit 63.2 tons
per year of PM-10.46 Nucor did not include the PM-10 figure in
its notice letter, presumably because it is below the 100 tpy
threshold which would render the source a major source subject to
Part 70 permitting. In sum, Nucor's original letter gave notice
only that Zen-Noh had the potential to emit more than 100 tpy of
particulate matter, which is not regulated under Part 70. As to

45

R. Doc. 42-2 at 17.

46

Id. at 19.
23

Count I of the complaint, the letter gave notice of patently
lawful conduct with no indication of any unlawful conduct that
could be corrected before Nucor filed its citizen suit.
Nucor did not remedy its failure to give the required notice
of its Count I claim by filing an amended notice of intent to
file a citizen suit47 on October 16, 2012, the same day it filed
its First Amended Complaint. The citizen suit provision of 42
U.S.C. § 7604(b) prohibits suits under § 7604(a)(1) unless the
defendant has given 60 days notice of the specific violation at
issue. The purpose of the notice provision - to allow facilities
to correct deficiencies before citizen suits are filed - would
obviously be stymied if a plaintiff could wait until after it had
filed suit to provide notice of the specific violation alleged.
Nat'l Parks & Conserv. Ass'n, 502 F.3d at 1329-30. Only the April
16, 2012, notice letter was provided 60 days before Nucor filed
its original complaint and its First Amended Complaint and that
letter did not give specific notice of the violation alleged in
Count 1. For those reasons, the Court must dismiss Count 1 of the
First Amended Complaint as in violation of the notice requirement
of 42 U.S.C. § 7604(b).

B. Counts II and III

47

R. Doc. 46-3.
24

Count II alleges that "Zen-Noh had failed to control
particulate emissions (PM and PM-10) from its loading operations
through the use of tarpaulins or closed covers in accordance with
the terms and conditions of its minor source air permit ['Air
Permit']".48 Count III alleges that Zen-Noh violated its Air
Permit by failing to control particulate emissions (PM and PM-10)
from its loading and unloading operations resulting in a dusting
nuisance to the public.49 In both of these counts, Nucor alleges
that Zen-Noh's violation of Specific Conditions of its Air Permit
amount to violations of the Louisiana SIP and the CAA.
Zen-Noh moves to dismiss these counts on the grounds that
they fail to allege enforceable violations under 42 U.S.C. §
7604. The citizen suit provision of § 7604(a)(1) limits private
enforcement to "emission limitations and standards under this
chapter [i.e., the Clean Air Act]." See § 7604(a)(1). As
applicable here, this includes "any ... standard, limitation, or
schedule established ... under any applicable State
implementation plan approved by the Administrator, [and] any
permit term or condition, ... which is in effect ... under an
applicable implementation plan." 42 U.S.C. § 7604(f)(4); see
CleanCOALition v. TXU Power, 536 F.3d 469, 476-77 (5th Cir. 2008)
(holding that § 7604(f)(4) encompasses SIP provisions and permit

48

R. Doc. 46 at 34.

49

Id. at 35.
25

limits established under SIP provisions). Nucor insists that the
Specific Conditions of the Air Permit Zen-Noh is alleged to have
violated in Counts II and III are permit terms in effect under
the federally approved Louisiana SIP provisions, La. Admin. Code
tit. 33, pt. III, §§ 905(A), 1305, and 1311.
LDEQ's permit rules differentiate between permit terms that
LDEQ must include in permits under applicable state and federal
air quality law, and "such other terms and conditions as deemed
by the permitting authority to be reasonable and necessary." See
La. Admin. Code tit. 33, pt. III, § 501.C.6. Of the types of
permit terms that LDEQ may include in an operating permit, only
the "federally applicable requirements," which include standards
in the approved SIP and PSD permit conditions, fall within
Section 7604(f)'s definition of an "emission standard or
limitation under this chapter." Thus, there is a category of
"other terms and conditions" that LDEQ may include in permits
that are not "emission standards or limitations under" Section
7604, and are thus not federally enforceable.
The question remains whether Specific Conditions 2 and 3 of
the Air Permit, which form the basis for Counts II and III,
respectively, are specific standards approved under the Louisiana
SIP or terms that are not federally enforceable. Specific
Condition 2 requires the permit holder to use tarpaulins or
closing covers during all ship loading operations except during

26

topping off procedures.50 Specific Condition 3 requires the
permit holder to "conduct loading/unloading operations in such a
manner, regardless of the inconvenience to the permittee and even
when all other special conditions are complied with, such that
fugitive emissions created by such operations are not a nuisance
to the public." There is no SIP provision or regulation that
specifically reflects the requirements imposed by Specific
Conditions 2 and 3. Instead, Nucor argues that a variety of
general federal and state statutes authorize the conditions.51 Of
the laws Nucor alleges Zen-Noh violated in Counts II and III,
only La. Admin. Code tit. 33, pt. III, §§ 905, 1305, and 1311 are
in the Louisiana SIP. Section 905 requires sources to install air
pollution control equipment "whenever practically, economically,
and technologically feasible." Section 1305 requires "all
reasonable precautions [to] be taken to prevent particulate
matter from becoming airborne." Section 1305 includes a nonexclusive list of precautions for limiting airborne dust but none
of the listed precautions is applicable to ship
loading/unloading.

50

R. Doc. 42-3 at 3.

51

R. Doc. 46 at 34-35 (Nucor alleges in Counts II and III
that Zen-Noh has violated La. Admin. Code tit. 33, pt. III, §§
905, 1305, and 1311; La. Rev. Stat. Ann. §§ 30:2055 and 2057; the
Clean Air Act, 42 U.S.C. § 7470, et seq.).
27

The first two SIP provisions relied on by Nucor, Sections
905 and 1305 of La. Admin. Code tit. 33, pt. III, provide only
general guidance to use control equipment when feasible and to
take reasonable precautions against particulate matter becoming
airborne. In order to be enforceable under § 7604, the provisions
of the Louisiana SIP must be specific enough to be considered
"standards" or "limitations". 42 U.S.C. § 7604(f)(4); McEvoy v.
IEI Barge Servs., Inc., 622 F.3d 671, 678 (7th Cir. 2010). In
McEvoy, the Seventh Circuit held that two regulations in the
Illinois SIP lacked the specificity required to be judicially
enforceable under § 7604. The first provision stated that "[n]o
person shall cause ... or allow the discharge or emission of any
contaminant into the environment in any state so as ... to cause
or tend to cause air pollution in Illinois." Id. The panel found
that such a "broad, hortatory statement," could not "be viewed as
a 'standard' or 'limitation' at all," and thus Congress did not
provide a cause of action for its enforcement in § 7604(a)(1)(A).
Id. The second regulation in McEvoy was less broad and presented
a "closer call" for the court. Id. The second regulation stated
that "no person shall cause or allow the emission of fugitive
particulate matter from any process ... that is visible by an
observer looking generally toward the zenith at a point beyond
the property line of the source." Ill. Admin. Code tit. 35, §
212.301. The panel noted the difficulty a federal court would

28

have in enforcing the provision due to the lack of specificity
and guidance provided by the regulation. McEvoy, 622 F.3d at 67980. It observed that a federal court had no guidance regarding
the characteristics of the observer, whether weather conditions
mattered, and how many days per year or hours per day the
emission must be visible to trigger the provision. The panel
concluded that Congress did not intend for federal courts to
flesh out the specifics of the provision and that it could not be
used as the basis of a citizen's suit under the Clean Air Act.
Id.
The SIP provisions of Sections 905, and 1305 of La. Admin.
Code tit. 33, pt. III, are likewise too broad to constitute
enforceable "standards" or "limitations." These provisions
require control equipment "whenever ... feasible" and "all
reasonable precautions," without any specific guidance as to the
boundaries of feasibility and reasonableness. Thus, these
provisions of the Louisiana SIP are not federally enforceable and
cannot form the basis for Counts II and III in Nucor's citizen
suit.
The other SIP provision Nucor relies on is Section 1311 of
La. Admin. Code tit. 33, pt. III. Unlike the other two
provisions, Section 1311 imposes specific mass emission limits
that depend on the maximum production rate of the emitting
facility. Nevertheless, this provision does not mention or relate

29

to the conduct regulated by Specific Conditions 2 and 3: loading
and unloading operations. See La. Admin. Code tit. 33, pt. III, §
1311. Therefore, the conduct alleged in Counts II and III namely violations of Specific Conditions 2 and 3 of the Air
Permit - cannot be made federally enforceable by Section 1311, a
provision of the SIP that has nothing to do with that conduct.
In sum, the Court finds that Counts II and III fail to
allege violations of any federally enforceable limit or
regulation. Those counts must therefore be dismissed.

C. Count IV
Count IV alleges that Zen-Noh violated the 20% opacity
standards contained in the Air Permit as Specific Condition 4 and
contained in 40 C.F.R. § 60.302(c), and La. Admin. Code tit. 33,
pt. III, § 1311.C.52 In this case, the conduct alleged is
specifically prohibited by the Louisiana SIP, La. Admin Code tit.
33, pt. III, § 1311(C), as required by EPA Regulations, 40 C.F.R.
§ 60.302(c). Because the Court finds that Nucor has alleged a
claim under a federally enforceable provision of the Louisiana
SIP, it denies the motion to dismiss Count IV, except it
dismisses the claim to the extent it is also based on violation
of La. Admin. Code tit. 33, pt. III, § 1305, which is not a

52

Id. at 35-36.
30

specific limitation or regulation enforceable in a citizen suit.
See discussion, supra.

D. Count's V, VI, and VII
Zen-Noh argues that Counts V-VII are barred by the statute
of limitations. Claims brought under the Clean Air Act are
subject to the general five-year statute of limitations for
federal claims provided by 28 U.S.C. § 2426. See CleanCOALition,
536 F.3d at 478. The limitations statute bars any suit that is
not brought within five years of the date the claim first
accrues. Id. A claim first accrues on the date that a violation
first occurs. Nat'l Parks & Conservation Ass'n, Inc., 502 F.3d at
1322. The statute of limitations serves the important purposes of
"barring stale claims and protecting expectations that have
settled over time." Id. at 1326. Zen-Noh argues that the
violations alleged in Counts V-VII occurred more than five years
ago.
Count V alleges that "Zen-Noh failed to provide correct
information in its application for the Air Permit or failed to
promptly supplement or correct such information after the permit
was issued," in violation of General Condition 1 of the Air
Permit, La. Admin. Code tit. 33, pt. III, § 517(C), La. Rev.
Stat. Ann. §§ 30:2055 and 2057, and Sections 110 and 113 of the

31

Clean Air Act.53 Count VI alleges that Zen-Noh's actual emissions
have exceeded the permitted emissions in violation of General
Condition 1 of the Air Permit, La. Admin. Code tit. 33, pt. III,
§ 501, La. Rev. Stat. Ann. §§ 30:2055 and 2057, and Sections 110
and 113 of the Clean Air Act.54 Count VII alleges that Zen-Noh
should have obtained a PSD Permit when the elevator was
constructed or when it constructed a fourth shiploader.55 Counts
V-VII are based on allegations that Zen-Noh did not specifically
identify its fourth shiploader until 1995, that expansion of the
wood chip storage pile in 2000 increased VOC emissions above 100
tpy, that Zen-Noh's control equipment did not work as effectively
as indicated in the December 2001 permit application, and that
Zen-Noh did not modify its permit after the EPA revised certain
AP-42 emission factors for grain elevators in 2003. Nucor alleges
that Zen-Noh's most recent permit modification occurred on March
20, 2002.56 Because Counts V-VII are based on conduct that
occurred more than five years before suit was filed in 2012, the
statute of limitations bars these claims unless there is some
basis for tolling.

53

R. Doc. 46 at 36.

54

Id.

55

Id.

56

Id. at 22.
32

Nucor makes several arguments why the statute of limitations
does not bar these claims. First, Nucor argues that the statute
of limitations does not apply to its claims because it seeks
equitable as well as legal relief. Indeed, by its terms, the
statute of limitations in 28 U.S.C. § 2462 applies only to suits
"for the enforcement of any civil fine, penalty, or forfeiture,"
not to suits seeking injunctive relief. See United States v.
Westvaco Corp., 144 F. Supp. 2d 439, 443 (D. Md. 2001) ("fiveyear statute of limitations applies to claims for civil penalties
only"). However, when a party seeks both equitable and legal
relief, and the legal relief is time-barred, the statute of
limitations applies to the equitable claims as well as the legal
ones under the concurrent remedy doctrine. See United Transp.
Union v. Fla. E. Coast Ry. Co., 586 F.2d 520, 523-24 (5th Cir.
1978) (when party seeks both legal and equitable relief, statute
of limitations bars both); Nat'l Parks & Conservation Ass'n, Inc.
v. Tennessee Valley Auth., 502 F.3d 1316, 1322 (11th Cir. 2007)
(concurrent remedy doctrine bars citizen suit seeking declaratory
and injunctive relief that was filed with time-barred claim for
civil penalties under Clean Air Act). Thus, if the claims for
civil penalties are barred as untimely, Counts V-VII must be
dismissed in their entirety.
Nucor also argues that Counts V-VII are not barred by the
statute of limitations because the violations alleged were

33

ongoing violations that continued within the statutory period.
The Court will address the applicability of the continuing
violation doctrine for each count separately.

1. Count VII
Count VII alleges that Zen-Noh failed to obtain a
preconstruction PSD permit, as it was allegedly required to do
before it constructed the Grain Elevator and the fourth
shiploader. Nucor's argument that the statute of limitations on
this claim was tolled under the continuing violation doctrine is
unavailing. Under the continuing violation doctrine, the statute
of limitations is tolled if the violation giving rise to the
claim continues to occur within the limitations period. Havens
Realty Corp. v. Coleman, 455 U.S. 363, 380-81 (1982). Many courts
have held that violations of the requirements of the
preconstruction permitting process do not constitute continuing
violations. See, e.g., Nat'l Parks & Conservation Ass'n, Inc.,
502 F.3d at 1322; New York v. Niagara Mohawk Power Corp., 263 F.
Supp. 2d 650, 661 (W.D.N.Y. 2003); United States v. Ill. Power
Co., 245 F. Supp. 2d 951, 957-58 (S.D.Ill. 2003); United States
v. Westvaco Corp., 144 F.Supp.2d 439, 443-44 (D.Md.2001)
(collecting additional cases). National Parks & Conservation is
instructive. In that case, plaintiffs alleged that the Tennessee
Valley Authority ("TVA") did not obtain new source construction

34

permits under the Alabama SIP for a boiler that it had operated
since 1965 and modified in 1983. Nat'l Parks & Conservation, 502
F.3d at 1318. The TVA moved to dismiss based on the statute of
limitations, because the suit was filed more than five years
after the modification. Id. at 1321. The Eleventh Circuit
affirmed the district court's order granting the motion to
dismiss. Id. at 1330. It held that "a violation of the Clean Air
Act's preconstruction permit requirements occurs at the time of
the construction or modification and is not continuing in
nature." Id. at 1323.
Count VII alleges a violation of Clean Air Act
preconstruction requirements - the lack of a preconstruction PSD
permit - and thus does not allege a continuing violation. As was
the case in Nat'l Parks & Conservation, "this conclusion is
reinforced by the very citizen suit provision [Nucor] invoke[s],
which permits suit 'against any person who proposes to construct
or constructs any new or modified major emitting facility without
a permit.'" Id. (citing 42 U.S.C. § 7604(a)(3)). The Louisiana
SIP, like the Alabama SIP at issue in Nat'l Parks & Conservation,
regulates construction separately from operation. See La. Admin.
Code tit. 33, pt. III, §§ 509 (construction), 507 (operation).
Although a PSD permit is necessary for construction of a major
source, a Part 70 permit is required for its operation. Given
that dichotomy, the statutory provisions governing
35

preconstruction PSD permits "cannot reasonably be construed to
mean that building or altering a [facility] without a permit is a
violation that continues as long as the [facility] exists or is
operated." Nat'l Parks & Conservation, 504 F.3d at 1323. Thus,
Count VII must be dismissed as barred by the statute of
limitations because the alleged violations occurred before 2003.

2. Count V
Count V alleges that Zen-Noh failed to provide correct
information in its application for the Air Permit before the
permit was issued and failed to correct and supplement
information later when modifications to the permit were allegedly
required. The claim alleges violation of La. Admin. Code tit. 33,
pt. III, § 517, which requires a permit application to be
submitted and a permit granted before "commencement of
construction, reconstruction, or modification" of any new or
modified source. Section 517 also requires "any applicant who
fails to submit any relevant facts or who has submitted incorrect
information in a permit application [to], upon becoming aware of
such failure or incorrect submittal, promptly submit such
supplementary facts or corrected information." These provisions
regulate the conduct of an applicant before it receives a valid
permit. As in the case of Count VII, violation of these
provisions occurs at the time construction of a source begins, or

36

at the time of a modification. See Nat'l Parks & Conservation
Ass'n, Inc., 502 F.3d at 1322-23 (violation of preconstruction
permitting requirements do not constitute continuing violations).
Construction of the Grain Elevator began in 1979, and the First
Amended Complaint does not identify any major modifications that
occurred within the statutory period. Thus, Count V is barred by
the statute of limitations and is dismissed.

3. Count VI
Count VI alleges that actual emissions from Zen-Noh have
exceeded the permitted emissions. In particular, Nucor alleges
that "any violation of the PM-10 emission limits of the Air
Permit is a violation of General Condition 1 of the Permit, La.
Admin. Code tit. 33, § 501, La. Rev. Stat. Ann. §§ 30:2055 and
2057, and [Sections] 110 and 113 of the Clean Air [Act.]"
Although its language is indefinite, Count VI seemingly alleges
that Zen-Noh violated the PM-10 emissions limits contained in the
Air Permit. Violations of this emission standard could occur on
an ongoing basis, including within the statutory period. Unlike
Counts VII and V, the violation alleged in Count VI is not
limited to preconstruction or pre-modification conduct. Thus,
although 28 U.S.C. § 2462 bars all claims based on emissions
occurring more than five years before the filing of this lawsuit,
it does not bar claims based on emissions occurring within five

37

years of the filing of the complaint. See United States v. Marine
Shale Processors, 81 F.3d 1329, 1357 (5th Cir. 1996) (Section
2462 does not bar minor source fines for emissions occurring
within five years of the filing of the lawsuit).
In support of Count VI, Nucor alleges that Zen-Noh's actual
emissions of PM-10 are 292.7 tpy and exceed the 250 tpy limit
imposed by the Louisiana SIP and the federally approved Title V
program.57 Zen-Noh argues that the Court should dismiss this
count because it is not supported by sufficient factual
allegations. To the contrary, Nucor alleges that the 292.7 tpy
allegation is based on information provided by Zen-Noh in its
1995 and 2012 permit applications, "corrected to utilize
appropriate emissions factors, capture efficiencies, and control
efficiencies and ... account for fugitive emissions from truck
traffic, scalping piles and other sources."58 These allegations
create a factual basis for Nucor's Count VI claim. As Zen-Noh
argues, it is somewhat suspect that Nucor first alleged PM-10 of
292.7 tpy in its Amended Complaint, only after Zen-Noh pointed
out in its motion to dismiss that grain elevators are subject to
a PM-10 emissions limit of 250 tpy. However, the Court is not
able to make credibility determinations on a motion to dismiss.
At this stage, the Court must accept well-pleaded facts as true

57

R. Doc. 46 at 17.

58

Id.
38

and draw all reasonable inferences in favor of the plaintiff.
Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 239 (5th Cir. 2009).
Under this standard, the Court finds the Count VI allegations
plausible and denies the motion to dismiss this count.

E. Count VIII
Count VIII states that "[u]pon information and belief, ZenNoh is operating under an expired air permit."59 Zen-Noh has
moved to dismiss this claim. Nucor has filed a motion for partial
summary judgment on this issue, urging the court to grant Nucor
summary judgment that "Zen-Noh has not renewed its Air Permit as
required by law and it has now lapsed."60
The Court does not have subject matter jurisdiction over
this Section 7604(a)(1) citizen suit claim because Nucor did not
provide at least 60 days notice of this alleged violation before
filing its First Amended Complaint. Under the Clean Air Act's
citizen suit provision, at least 60 days before filing suit, the
citizen plaintiff must give “notice of the violation (i) to the
Administrator, (ii) to the State in which the violation occurs,
and (iii) to any alleged violator of the standard, limitation, or
order” allegedly violated. 42 U.S.C. § 7604(b)(1)(A); 40 C.F.R. §
59

Id. at 37.

60

R. Doc. 79 at 2.
39

54.3(b) (2004). "The notice requirements are strictly construed
to give the alleged violator the opportunity to correct the
problem before a lawsuit is filed." Nat'l Parks & Conservation
Ass'n, Inc., 502 F.3d at 1335 (citing Gwaltney of Smithfield,
Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 60, 108 S.Ct.
376, 98 L.Ed.2d 306 (1987)).
Nucor issued a notice of intent to sue on April 30, 2012.61
However, this notice did not allege that Zen-Noh failed to renew
its Air Permit or was operating under an expired permit.62 Nucor
for the first time mentions this claim in its First Amended
Complaint.63 Nucor's amended notice of intent to sue was filed on
the same day as the First Amended Complaint and thus did not
provide the required 60-day notice.64 Because Nucor failed to
provide the advance notice required under § 7604(b), Count VIII
must be dismissed.
Because Nucor's claim that Zen-Noh's Air Permit expired is
dismissed, Nucor's motion for summary judgment on the issue is
denied.

F. Count IX

61

R. Doc. 46-1.

62

See id.

63

R. Doc. 46.

64

R. Doc. 46-3.
40

Count IX alleges:
Upon information and belief, Zen-Noh is operating or
has operated the wood chip storage yard with emissions
of VOC and particulate matter with unauthorized
emissions and without appropriately identifying the
criteria pollutant and toxic air pollutant emissions
associated with such operation in its permit
application. Such operation violated and/or is in
violation of LAC 33:III.501 and the Louisiana SIP.65
The allegations related to VOC emissions included in the original
and amended complaint are as follows:
It is believed that Zen-Noh also failed to
adequately characterize Volatile Organic Compound
(“VOC”) and particulate matter (PM and PM10) emissions
from its woodchip handling, storage, reclamation and
transportation operations as well. Zen-Noh initially
added a 9.5 acre storage slab for the storage and
reclamation of wood chips in 1995. The capacity of the
storage pile was then 160,000 tons. Zen-Noh represented
that there would be no air emissions associated with
the wood chip storage or handling operations in the
1995 permit application. In 2000, Zen-Noh expanded the
storage slab to 15 acres and the capacity to 240,000
tons. Zen-Noh indicated in its application that the
emissions from wood chips were minimal. The storage
slab is not a permitted point source or fugitive
emission source in the current permit. However, most
pulp and paper mills in the State of Louisiana and most
wood yards storing similar materials include relatively
significant VOC emissions estimates in their permits.
Several pulp/paper mills have permit limits of over 100
tpy VOC for their wood chip storage piles and PM10
emissions ranging from 1-5 tpy.66
These allegations are speculative. Nucor's allegation that
pulp mills, paper mills, and wood yards "storing similar

65

R. Doc. 46 at 37.

66

Id. at 24-25.
41

materials include relatively significant VOC emissions estimates
in their permits,"67 does not support the reasonable inference
that Zen-Noh's VOC emissions exceed its permitted levels. Iqbal,
129 S.Ct. at 1940. The comparison of Zen-Noh's wood chip
operation to unrelated facilities without factual allegations
establishing the appropriateness of such a comparison does not
raise the right to relief beyond a speculative level. Twombly,
550 U.S. at 555. Thus, Count IX must be dismissed.

IV.

CONCLUSION
Given all of the foregoing reasons, the Court grants Zen-

Noh's motion to dismiss Counts I-III, Count V, and Counts VII-IX,
and denies the motion to dismiss Counts IV and VI of the First
Amended Complaint.

New Orleans, Louisiana, this ___ day of July, 2013.
17th
_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

67

Id.
42