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

Filing 213

ORDER AND REASONS denying 76 Motion for Reconsideration. Signed by Chief Judge Sarah S. Vance on 7/31/13. (Reference: 12-1011)(jjs, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

ZEN-NOH GRAIN CORPORATION

CIVIL ACTION

VERSUS

NO: 12-1011

CONSOLIDATED ENVIRONMENTAL
MANAGEMENT, INC. - NUCOR STEEL
LOUISIANA

SECTION: R(1)

ORDER AND REASONS
The parties in this case are feuding neighbors with property
next to each other on the Mississippi River in St. James Parish.
Defendants, Consolidated Environmental Management, Inc., Nucor
Corporation, Nucor Big Iron Holdings, Inc., and Nucor Steel
Louisiana, LLC (collectively "Nucor”) are constructing a steel
production facility that Zen-Noh has vigorously opposed. Zen-Noh
filed this suit to enjoin Nucor from constructing a proposed
direct reduced iron (“DRI”) manufacturing unit. Zen-Noh alleged
that the requirements of the Clean Air Act (CAA) and the
federally enforceable Louisiana State Implementation Plan (SIP)
had not been met with regard to the proposed unit. The Court
denied Zen-Noh's motion for summary judgment and dismissed ZenNoh's claims as unripe.1

1

R. Doc. 25-1.

Zen-Noh now moves for reconsideration of the Court's order
dismissing the complaint.2 Specifically, Zen-Noh argues that the
suit was ripe and asks the Court to reinstate Zen-Noh's claim for
civil penalties and attorney's fees. Nucor opposes the motion and
moves the Court to alter judgment from "without prejudice" to
"with prejudice."3 For the following reasons, the Court DENIES
Zen-Noh's motion and GRANTS Nucor's motion.

I. Background
A.

STATUTORY BACKGROUND
Congress enacted the Clean Air Act (“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
2

R. Doc. 76.

3

R. Doc. 95.
2

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, a State
Implementation Plan 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).
Although the states “have ‘wide discretion’ in formulating
their plans,” Alaska Dept. 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 Dept. of
Environmental Conservation, 540 U.S. at 470 (quoting BELDEN, CLEAN
AIR ACT 43 (2001)). It prescribes certain substantive and
procedural requirements that must be met before construction may
3

begin on a new “major emitting facility.” See 42 U.S.C. §§ 7475,
7479(1).

The PSD review process requires a demonstration that

“emissions from construction or operation of such facility will
not cause, or contribute to, air pollution” 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). A critical requirement of
the PSD application review process is a determination that the
proposed facility will be outfitted with the best available
control technology (“BACT”)4 for pollutants. 42 U.S.C. §
7475(a)(4).

The restrictions on emissions included in a PSD are

based on the determination of BACT. Id.
Although the PSD program relates to preconstruction permits,
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). LAC 33:III Chapter 5. Part 70 does not
set forth any new requirements for source operators; it is
designed to have all emissions limitations and applicable PSD
provisions (such as BACT) in one easily accessible location. It

4

“BACT, is defined in the CAA as “an emission limitation
based on the maximum degree of [pollutant] reduction ... which
the permitting authority, on a case-by-case basis, taking into
account energy, environmental, and economic impacts and other
costs, determines is achievable for [the] facility ....” 42
U.S.C. § 7479(3).
4

is unlawful to operate without a Part 70 operating permit or to
operate except in compliance with an operating permit issued
under Part 70. The PSD and Part 70 permit programs are
incorporated into Louisiana rules under Louisiana Administrative
Code title 33, part II, Ch. 5 (“Louisiana SIP”), which has been
approved as satisfying the requirements of the Federal Clean Air
Act, 42 U.S.C. § 7411 et seq. All parties agree that the PSD and
Part 70 requirements apply to the proposed DRI plant at issue in
this litigation.
The CAA contains three citizen suit provisions. One of the
provisions allows for suit against the EPA Administrator “where
there is alleged a failure of the Administrator to perform a duty
under” the CAA. Id. § 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) allows for immediate suit against someone 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) allows 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

5

which the violation occurs, and to any alleged violator of the
standard, limitation, or order. Id. § 7604(b)(1)(A).

B.

FACTUAL BACKGROUND
The instant matter involves a proposed DRI facility. The

facility will consist of two DRI units, each of which qualifies
as a “major emitting facility” for which a PSD permit and a Part
70 permit are required.
On August 20, 2010, Nucor first applied for PSD and Part 70
permits for the DRI plant.5 In its initial application Nucor
indicated that it planned to use a DRI process which incorporates
an external reformer, such as the Midrex process. The
applications included calculations and process drawings
pertaining only to the Midrex process. Nucor also explained in
the Part 70 permit application that it was
...investigating the potential of a DRI process which
does not require a reformer as part of the design. In
the place of the reformer, a process heater provides
the energy input necessary to heat the furnace, which
requires less heat input than a standard reformer
design. However, this technology remains unproven, and
new units based on this design have yet to be built.
Nucor reserves the right to select and implement this
competing technology at the Nucor Direct Reduced Iron
Facility after a thorough investigation of its
potential and reliability. Due to the lower energy
requirements claimed by the vendor, it is expected that
5

LDEQ received the initial application on August 20, 2010.
After twice receiving additional information for Nucor, LDEQ
considered the application effectively complete on November 8,
2010. R. Doc. 25-2 at 9.
6

emissions from a reformerless DRI unit would be lower
than that of a standard design including a reformer,
and so the emissions presented with this application
are conservative. Nucor will notify the Louisiana
Department of Environmental Quality in a timely manner
of the DRI process design selection made for the Nucor
Direct Reduced Iron Facility.6
The alternative design described above is referred to by the
parties as the HYL process.
Following receipt of the permit applications, LDEQ provided
an opportunity for public comment on the permits as required by
the Louisiana SIP. La. Admin Code. tit. 33, pt. III, 509Q.
Several commenters questioned the choice between the HYL
reformer-less technology and the Midrex process. One comment
reads:
The original October 2010 application states that Nucor
is requesting authorization to construct a reformerbased DRI plant, but is also seeking authority to
construct in the alternative, a reformer-less HYL
process unit. We did not see this other process
discussed in the draft PSD permit, [or] Title V permit.
Please clarify whether this inherently less polluting
process was considered in the Best Available Control
Technology (BACT) determination.7
LDEQ responded:
LDEQ received no calculations or process drawings
pertaining to a reformerless design. Permit Nos. 3086V0 [Part 70] and PSD-LA-751 [PSD] only authorize
construction and operation of the emissions units

6

R. Doc. 29 at 3.

7

R. Doc. 25-4 at 56-57.
7

addressed therein; they do not allow Nucor to construct
reformerless process units.
The HYL process was considered by Nucor and may result
in fewer emissions of greenhouse gases; however, this
process is still experimental and has never been
attempted at a DRI facility of the size that Nucor is
considering.8
In response to similar comments, LDEQ reiterated that “[t]he
applicant has not presented such an alternative design, ... and
is not permitted to construct and operate such an alternative
design by the approved PSD and Title V permits,”9 and “PSD-LA751...do[es] not allow Nucor to construct reformerless process
units.”10
On January 27, 2011, LDEQ issued PSD and Part 70 permits for
the construction and operation of the two DRI plants.11 The PSD
permit contains a multi-step analysis determining the BACT for
each regulated pollutant, a summary table of the selected BACT
for each pollutant, and maximum allowable emission rates based on
the BACT determinations.12
Subsequently, Nucor decided to construct the first of the
two DRI plants utilizing the new technology licensed by HYL. On

8

Id. (quotations omitted).

9

Id. at 191.

10

Id. at 28.

11

R. Doc. 25-2; R. Doc 25-3.

12

R. Doc. 25-2 at 11-72, 78-81.
8

September 29, 2011, Nucor submitted an application with LDEQ to
modify its Part 70 permit in accordance with the changed plans.13
Both parties acknowledge that the HYL process is likely to be
more efficient and have lower emissions than the Midrex
process.14 The primary difference in the HYL technology is that
natural gas is reformed internally, rather than externally, as in
the Midrex process. As Nucor explains:
External reforming is accomplished via a process heater
containing catalyst in the heater tubes while the in
situ [internal] reforming utilizes a smaller process
heater (still external) which simply heats the natural
gas in the heater tubes without the catalyst; the
natural gas reforming reaction occurring later in the
process or “in situ” with the iron ore raw material in
the shaft furnace.15
The HYL process “substitutes in place of the reformer a process
heater with a lower firing rate, and allows for the substitution
of a smaller package boiler than that required by the traditional
process.”16
On March 8, 2012, LDEQ issued a modified Part 70 permit
authorizing the construction and operation of the unit with the

13

R. Doc. 25-5; R. Doc. 29 at 4.

14

R. Doc. 29 at 15; R. Doc. 25-1 at 12.

15

R. Doc. 33-5.

16

R. Doc. 25-5 at 1-2.
9

HYL process.17 The modified part 70 permit wholly adopts the
changes and limitations proposed by Nucor in its application for
the modification. The changes to the permit include replacing the
reformer with a process heater, which has a lower heat input, and
replacing the package boiler with a smaller one with a lower heat
input.

The emissions limits for four emissions points, the

furnace dust collection (DRI-107), the process heater (DRI-108),
the package boiler flue stack (DRI-109), and the hot flare (DRI110) are changed.18 Limits for the first three emission points
demonstrate substantial reductions for most of the criteria
pollutants, while the hot flare emissions limits have mostly
increased.19 LDEQ classified the modification of the Part 70
permit as a “minor modification,” for which public notice was not
required.20
Because the Part 70 permit program is designed to be an
accumulation of all the emissions limitations associated with a
facility, in considering the Part 70 modification LDEQ evaluated
its compliance with the PSD program along with Louisiana Air
Quality Regulations, New Source Performance Standards, and

17

R. Doc. 25-6.

18

Compare R. Doc. 25-3 at 23, with R. Doc. 25-6 at 27.

19

Id.

20

R. Doc. 25-6 at 6.
10

National Emission Standards for Hazardous Air Pollutants.21 The
parties disputed whether LDEQ considered actually modifying the
PSD permit when it evaluated the Part 70 modification. Plaintiff
alleged that “Nucor did not request, and LDEQ did not issue, a
revised PSD permit...to reflect the differences between the
Midrex and HYL process.”22 Defendants pointed to LDEQ’s
statements issued after the Part 70 modification that it reviewed
the PSD permit and determined that modification was unnecessary
because the initial BACT determinations were unchanged.23
Neither party pointed to an LDEQ statement regarding whether the
need for PSD modification was considered that was made during the
period the Part 70 modification was under consideration.
In early 2012, Nucor allegedly began construction of the HYL
DRI unit with the new technology and the original PSD permit
still in place.24 On June 21, 2012, LDEQ decided to reopen the
PSD permit. In a letter announcing the reopener, LDEQ stated:
At the time [of the Part 70 modification], LDEQ also
reviewed the PSD permit for the DRI facility, PSD-LA751, to determine if it should be modified in the same
fashion. Despite being aware of previous statements

21

Id.

22

R. Doc. 25-1 at 6.

23

R. Doc. 29-1 at 1.

24

Nucor’s application for modification of the Part 70
permit, dated September 29, 2011 stated that “Nucor has recently
commenced construction of the permitted facility, and expects to
begin operations in 2013.” R. Doc. 25-5 at 2.
11

that the PSD permit did not allow Nucor to construct
reformerless process units, based on LDEQ’s review of
the application and inquiries about the HYL design,
LDEQ concluded that because its initial best available
control technology (BACT) determinations remained
appropriate, it was not necessary to modify this
permit.25
Nevertheless, LDEQ said that the degree of public interest in the
project prompted its decision to reopen the permit “for the
limited purpose of confirming LDEQ’s initial assessment.”26 In
reopening the permit, LDEQ called for Nucor to submit an analysis
demonstrating that “BACT for the HYL equipment is not more
stringent than that provided by PSD-LA-751, and ... [the] use of
HYL equipment in one unit of the DRI facility does not materially
change the original air quality analysis.”27 Alternatively, LDEQ
invited Nucor to identify and justify any necessary revisions to
the existing PSD permit. The reopener states:
If LDEQ ultimately determines that no changes to the
existing BACT determinations are warranted, PSD-LA-751
will be revised to clarify that it covers the HYL
equipment. If LDEQ determines that BACT for the HYL
equipment is more stringent than that currently
provided by the PSD permit, or that use of HYL
equipment in one unit of the DRI facility results in
adverse air quality impacts, LDEQ will stay the permit
or portions of the permit as necessary and propose a

25

R. Doc 29-1 (quotations omitted).

26

Id.

27

Id.
12

revised permit establishing appropriate terms and
conditions.28
LDEQ also announced an opportunity for public comment on the
reopened permit.
In accordance with LAC 33:III.529.A.2, proceedings to
reopen a permit shall affect only those parts of the
permit for which cause to reopen exists. Therefore,
public comment shall be limited solely to the issues
addressed herein and to any other revisions to the
permit proposed by LDEQ.29
After reopening the PSD permit and receiving the requested
analysis from Nucor, LDEQ issued a draft modified PSD permit for
public comment.30 In the draft, LDEQ reiterates that at the time
LDEQ approved Nucor’s application and modified the Part 70
permit, “LDEQ also reviewed the PSD permit...to determine if it
should be modified in the same fashion.”31 “LDEQ concluded that
because its initial...BACT determinations remained appropriate,
it was not necessary to modify the PSD permit.”32

The draft PSD

permit states:
Based upon additional information provided by Nucor on
July 20, 2012, LDEQ has again concluded that no changes
to the existing BACT determinations are warranted ...

28

Id.

29

Id.

30

R. Doc. 33-5 (Draft PSD-LA-751(M-1)).

31

Id. at 2

32

Id. at 3.
13

and that use of in situ reforming equipment in one unit
of the DRI plant does not result in adverse air quality
impacts. Therefore LDEQ proposes to revise the PSD-LA751 only to clarify that it covers the in situ
reforming equipment.33
The draft modified PSD permit lays out the top down BACT
process for determining the most stringent control technique
for each emission point. The draft “replicates the [BACT]
analysis documented in PSD-LA-751 [the original PSD permit],
modified to reflect that DRI Unit No. 1 will be an in situ
reforming design.”34

Unlike the earlier Part 70

modification which was classified as a minor modification,
the PSD draft indicates that the LDEQ “has made a
preliminary determination to approve the construction of the
major modification.”35
The changes in design led to some differences in the
BACT analysis and emissions limits for the HYL unit (in the
Draft revised permit) compared to the analysis in the
original PSD permit. For example, the BACT analysis of the
DRI reformer was removed and replaced by BACT analysis for

33

Id.

34

Id. at 9.

35

Id. at 7 (emphasis added).
14

the Process Heater.36 In its submissions to LDEQ for
consideration in the reopener, Nucor stated:
The only difference [between the Midrex and HYL
designs] is where the natural gas reformer is
located and the impact that the type of reformer
has on the overall process emissions. ...[The HYL]
unit has 15 emission points for which BACT was
evaluated. All but five of these remain identical
for either type of natural gas reforming.
Consequently, the BACT evaluation for these
emission points also remains unchanged. The
remaining five emission points are slightly
different depending on whether an in situ or
external reformer is utilized on the DRI plant.37
The briefing sheet of the draft permit provides a summary of the
changes including: 1) replacement of the reformer with a process
heater; 2) reduction of the PM10/PM2.5 BACT limit for the new
Process Heater; 3) deletion of the upper seal gas vent; 4)
removal of seal gas emissions from the furnace dust collection;
5) lowering of the firing rate of the package boiler; and 6)
revision of the emissions limitations for the hot flare to
reflect that the flare will now be used only for startup and
shutdown operations rather than intermittently.38 Also, the
generally more stringent emissions limits from the Part 70 permit
modification are included in the PSD draft.

36

R. Doc. 33-5 at 116.

37

Id. at 112.

38

Id. at 7.
15

THE COURT's SUMMARY JUDGMENT RULING
When the Court ruled on Zen-Noh's motion for summary
judgment, the record reflected that LDEQ had not yet issued a
final PSD permit authorizing the HYL changes. The Court held that
the suit should be dismissed because Zen-Noh’s claims were not
ripe for adjudication. Ripeness is a constitutional
justiciability doctrine that “prevent[s] the courts, through
premature adjudication, from entangling themselves in abstract
disagreements.” Thomas v. Union Carbide Agr. Prods. Co., 473 U.S.
568, 580 (1985) (quoting Abbott Laboratories v. Gardner, 387 U.S.
136, 148 (1967), overruled on other grounds, Califano v. Sanders,
430 U.S. 99 (1977)). Ripeness doctrine directs against deciding
cases which are abstract or hypothetical, as opposed to definite
and concrete. Monk v. Huston, 340 F.3d 279, 282 (5th Cir. 2003).
The Supreme Court has expressly recognized that one purpose of
the doctrine is “to protect the agencies from judicial
interference until an administrative decision has been formalized
and its effects felt in a concrete way by the challenging
parties.” Abbott Laboratories, 387 U.S. at 148-49.
In finding Zen-Noh's suit unripe, the Court found that ZenNoh failed to demonstrate that any hardship would result from
withholding adjudication until the agency proceedings had
finished. The Court found that the reopening of the permit by
LDEQ addressed Zen-Noh’s contentions that no BACT analysis for
16

HYL process was conducted, that air quality limitations are more
stringent for the HYL process, and that Zen-Noh was denied the
right to comment publicly on the substitution of the HYL process
for the Midrex process. In reopening the permit, LDEQ required
Nucor to submit BACT and air quality analysis specific to the HYL
process and provided for a public comment period. Further, the
draft PSD contained the more stringent emissions limitations from
the modified Part 70 permit that Zen-Noh sought. Therefore, the
Court concluded, if the LDEQ issued a final PSD permit that
looked like the draft, "plaintiff will have received what it said
it wanted: more stringent emissions limitations and the ability
to file an immediate citizen suit under § 7604(a)(3) if they are
violated."39 The Court also found that any injury resulting from
beginning to operate the plant before LDEQ issued a new PSD
permit “rests upon contingent future events that may not occur as
anticipated, or indeed may not occur at all."40 The Court
determined that the suit was "unripe because any hardship to the
parties is 'abstract and hypothetical.'"41

39

R. Doc. 65 at 22.

40

Id. at 23 (citing Texas v. United States, 523 U.S. 296,
300 (1998) (citation and internal quotation marks omitted).
41

Id. (citing Monk v. Huston, 340 F.3d 279, 282 (5th Cir.

2003)).
17

The Court also concluded that judicial review of the merits
of Zen-Noh’s claim would interfere with agency action. The Court
noted that LDEQ had stated a preliminary determination that the
initial PSD permit allowed for construction of the HYL plant and
the purpose of the reopener was to weigh additional information
and determine whether modification was necessary, and if so, in
what ways.42 Thus, the Court found that further litigation in
this Court would have interfered with and duplicated the ongoing
state administrative proceedings. The Court also noted that
"deciding the merits of this case without access to the fully
developed agency record would ... be imprudent."43
THE FINAL PSD PERMIT
In its motion for reconsideration, Zen-Noh indicates that
LDEQ issued a final PSD permit to Nucor on November 16, 2012,
almost a month before the Court issued its Order and Reasons
dismissing Zen-Noh's claims.44 The LDEQ mailed public
notification of the final permit decision on December 14, 2012,
two days after the Court issued its order. The final permit
incorporates the more-stringent BACT emission limits proposed in
the draft PSD permit and includes a requirement to spray water
onto the material in the hold of ships being unloaded and to

42

R. Doc. 29-1 at 1; R. Doc. 33-5 at 2.

43

R. Doc. 65 at 25.

44

R. Doc. 76-4.
18

install wind shields on conveyor hoppers.45 The LDEQ stated that
"LDEQ has again concluded that no changes to the existing BACT
determinations are warranted and that use of in situ reforming
equipment in one unit of the DRI plant does not result in adverse
air quality impacts."46 Therefore, LDEQ "revise[d] PSD-LA-751
only to clarify that it covers the in situ reforming
equipment."47
Zen-Noh now argues that its claims were ripe when the Court
issues its order and, although the final permit moots the claim
for an injunction, Zen-Noh's claims should be reinstated for
trial on the amount of civil penalties.

II. Legal Standard
Federal Rule of Civil Procedure 54(b) provides that an order
that adjudicates fewer than all the claims among all the parties
“may be revised at any time” before the entry of a final
judgment. Fed.R.Civ.P. 54(b). As Rule 54 recognizes, a district
court “possesses the inherent procedural power to reconsider,
rescind, or modify an interlocutory order for cause seen by it to
be sufficient.” Melancon v. Texaco, Inc., 659 F.2d 551, 553 (5th
Cir. Unit A Oct. 1981). Although the district court's discretion

45

Compare R. Doc. 33-5 at 72-73, with R. Doc. 76 at 73-76.

46

R. Doc. 76-4 at 5.

47

Id.
19

in this regard is broad, see Calpetco 1981 v. Marshall
Exploration, Inc., 989 F.2d 1408, 1414–15 (5th Cir. 1993);
Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 185
(5th Cir. 1990), abrogated on other grounds by Little v. Liquid
Air Corp., 37 F.3d 1069 (5th Cir. 1994) (en banc), it is
exercised sparingly in order to forestall the perpetual
reexamination of orders and the resulting burdens and delays. See
generally 18b Charles A. Wright et al., Federal Practice &
Procedure: Jurisdiction § 4478.1 (2d ed.2002).
This Court generally evaluates motions to reconsider
interlocutory orders under the same standards that govern Rule
59(e) motions to alter or amend a final judgment.48 Although
there may be circumstances in which a different standard would be
appropriate, the present motion does not present such
circumstances. See, e.g., American Canoe Ass'n v. Murphy Farms,
Inc., 326 F.3d 505, 514–16 (4th Cir. 2003) ("true declaratory
judgments ... trigger heightened standards for reconsideration").
The proper inquiry is therefore whether the moving party has

48

See, e.g., Rosemond v. AIG Ins., No. 08–1145, 2009 WL
1211020, at *2 (E.D. La. May 4, 2009) (Barbier, J.); In re
Katrina Canal Breaches Consol. Litigation, No. 05–4182, 2009 WL
1046016, at *1 (E.D.La. Apr.16, 2009) (Duval, J.); Total Sleep
Diagnostics, Inc. v. United Healthcare Ins. Co., No. 06–4153,
2009 WL 928646, at *2 (E.D.La. Mar.31, 2009) (Fallon, J.); Town
of Gramercy v. Blue Water Shipping Services, No. 07–2655, 2009 WL
580445, at *1 (E.D.La. Mar.4, 2009) (Engelhardt, J.); Letap
Hospitality, L.L.C. v. Days Inn Worldwide, Inc., No. 08–1355,
2008 WL 2959649, at *2 (E.D.La. July 30, 2008) (Berrigan, J.).
20

“clearly establish[ed] either a manifest error of law or fact or
... present[ed] newly discovered evidence.” Ross v. Marshall, 426
F.3d 745, 763 (5th Cir. 2005) (quoting Simon v. United States,
891 F.2d 1154, 1159 (5th Cir. 1990)). A motion to reconsider is
“not the proper vehicle for rehashing evidence, legal theories,
or arguments that could have been offered or raised before the
entry of [the order].” Templet v. HydroChem Inc., 367 F.3d 473,
478–79 (5th Cir. 2004).

III. Discussion
A. Ripeness
That LDEQ had issued a final permit at the time the Court
issued its order and reasons impacts the ripeness analysis. In
considering ripeness, events that occurred after the filing of
the complaint can be considered. See 13B CHARLES A. WRIGHT
FEDERAL PRACTICE

AND

ET AL.,

PROCEDURE: JURISDICTION § 3532.7 (3d ed. 2008); See

also Buckley v. Valeo, 424 U.S. 1, 113-114 (1976) (“Ripeness
questions are peculiarly questions of timing, and could properly
be resolved by considering events ... that intervened between
consideration by the court of appeals and decision by the Supreme
Court”). “We note that it is irrelevant whether the case was ripe
for review when the complaint was filed.” American Motorists Ins.
Co. v. United Furnace Co., Inc., 876 F.2d 293, 302 n. 4 (2d Cir.
1989), citing WRIGHT

ET AL.

In dismissing Zen-Noh's claims, the
21

Court found that it lacked jurisdiction because the agency had
yet to conclude the permitting process. Had the record reflected
that LDEQ had already issued a final PSD permit, the case would
have been ripe at the time of the Court's order.

B. Mootness
Although LDEQ had, unbeknownst to the Court, issued a final
permit, dismissal is nevertheless required under the related
justiciability doctrine of mootness. Mootness is the doctrine of
standing in a time frame. Envtl. Conservation Org. v. City of
Dallas, 529 F.3d 519, 524 (5th Cir. 2008). "The requisite
personal interest that must exist at the commencement of
litigation (standing) must continue throughout its existence
(mootness).'" Id. (citing Ctr. for Individual Freedom v.
Carmouche, 449 F.3d 655, 661 (5th Cir. 2006)). If a case has been
rendered moot, a federal court has no constitutional authority to
resolve the issues that it presents.

In re Scruggs, 392 F.3d

124, 128 (5th Cir. 2004). As a general rule, "any set of
circumstances that eliminates actual controversy after the
commencement of a lawsuit renders that action moot." Carmouche,
449 F.3d at 661. A case should not be declared moot “[a]s long as
the parties maintain a ‘concrete interest in the outcome’ and
effective relief is available to remedy the effect of the
violation ....” Dailey v. Vought Aircraft Co., 141 F.3d 224, 227
22

(5th Cir. 1998). But a case will become moot when “there are no
longer adverse parties with sufficient legal interests to
maintain the litigation,” or “when the parties lack a legally
cognizable interest in the outcome” of the litigation. In re
Scruggs, 392 F.3d at 128. As the Supreme Court has noted, “it is
not enough that a dispute was very much alive when the suit was
filed; ... [t]he parties must continue to have a personal stake
in the outcome of the lawsuit.” Lewis v. Cont'l Bank Corp., 494
U.S. 472, 477–78, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990)
(citations and internal quotation marks omitted).
Under Fifth Circuit law, the test for mootness depends on
whether or not it is the defendant's voluntary conduct that moots
the plaintiff's suit. When the defendant's voluntary conduct
brings it into compliance, the test is stringent. Envtl.
Conservation, 529 F.3d at 527. In that situation, "the defendant
must demonstrate that it is absolutely clear that the allegedly
wrongful behavior could not reasonably be expected to recur.” Id.
Under this standard, the party asserting mootness bears the
“formidable burden” of showing that its alleged violations of the
CAA cannot reasonably be expected to recur. Id. (citing Friends
of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S.
167, 189-90 (2000)). This stringent standard is appropriate when
considering voluntary cessations of CAA violations because it
“protects plaintiffs from defendants who seek to evade sanction

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by predictable protestations of repentance and reform." Envtl.
Conservation, 529 F.3d at 527.
The voluntary standard does not apply here because the Court
is not relying on Zen-Noh's assurances that it will not return to
its old ways. See id. Here, LDEQ has issued a final PSD permit
authorizing construction and operation of a plant using the HYL
process. Further, LDEQ reopened Nucor's permit on its own accord
after initially stating that a major modification was not
warranted. It was these actions by LDEQ that have rendered ZenNoh's suit moot, not any voluntary compliance by Nucor.
In circumstances such as these, Zen-Noh's claims are moot
unless Zen-Noh proves that there is a realistic prospect that the
violations alleged in its complaint will continue notwithstanding
LDEQ's actions. Id. at 228 (adopting the "realistic prospect"
mootness standard endorsed by the Second and Eighth Circuits).
The Fifth Circuit in Environmental Conservation applied this test
in similar circumstances. In that case, the district court found
that a consent decree resolved every violation alleged in the
plaintiff's Clean Water Act suit against the City of Dallas. Id.
at 529. Plaintiffs argued that the suit was not mooted by the
consent decree based on evidence of repeated past violations by
the city. Id. The court found that the consent decree addressed
every permit and Clean Water Act violation alleged in plaintiff's
citizen suit. Id. Because the plaintiff could not show a

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realistic prospect that "any of the violations alleged in the
citizen suit [would] continue notwithstanding the consent
decree," the Court found plaintiffs claims for both injunctive
relief and civil penalties to be moot. Id.
As Zen-Noh concedes, its claims for injunctive relief have
been mooted. Zen-Noh argues that its claims for civil penalties
should not be deemed moot because Nucor's alleged violations of
the PSD program are capable of repetition. However, Nucor has
acted at all times pursuant to authorization of LDEQ. When
reviewing Nucor's September 29, 2011 application to modify the
DRI Part 70 permit, LDEQ stated that it also specifically
reviewed PSD-LA-751 and determined that it did not require
modification because the BACT determinations remained
appropriate. When the LDEQ opened the PSD permit due to the
public interest, it "again concluded that no changes to the
existing BACT determinations are warranted."38 LDEQ also stated
that "because its initial ... BACT determinations remained
appropriate, it was not necessary to modify the PSD permit ...
Therefore, LDEQ proposed to revise PSD-LA-751 only to clarify
that it covers the in situ reforming equipment."39 Given that
LDEQ found Nucor to be in compliance with the CAA and the

38

R. Doc. 76-4 at 5.

39

Id.
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Louisiana SIP at all times, the deterrent effect of allowing ZenNoh's claims for civil penalties to go to trial is non-existent.
The Tenth Circuit's reasoning in WildEarth Guardians v. Pub.
Serv. Co. of Colorado, 690 F.3d 1174, 1178 (10th Cir. 2012), is
instructive. The plaintiff in WildEarth had initially been in
compliance with all applicable laws when construction of its
power plant began, but then a decision of the D.C. Circuit
required regulators to impose additional CAA requirements on
power plant construction. Id. at 1178. After the decision,
plaintiff worked with the relevant state agencies to come into
compliance with the modified regulatory regime while construction
of the plant continued. The WildEarth court considered whether
plaintiff's civil suit under the CAA was mooted when the
defendant came into compliance with the regulatory scheme. The
court noted that "in most citizen suits, a plaintiff's claim for
civil penalties is not rendered moot by the defendant's
compliance with the law because the plaintiff retains a concrete
interest in deterring the defendant from future violations." Id.
at 1186. The court nevertheless found that an exception applied
in WildEarth because the defendant's actions did "not suggest a
likelihood of future unlawful conduct needing to be deterred."
Id. at 1187. The court reasoned that the plaintiff had previously
gone above and beyond what was required in attempting to
accommodate environmental interests, that its alleged non-

26

compliance was precipitated by events outside of its control, and
that the particular violation alleged was unlikely to be
repeated. Id. at 1186-87.
Similar factors are present here. Nucor has participated in
LDEQ's permitting process from the beginning. Indeed, its alleged
violation was switching from an old technology to a new process
that the parties agree has generally lower emissions. In light of
these circumstances, the Court concludes that Nucor's alleged
unlawful conduct is not reasonably likely to recur. Therefore,
Zen-Noh's claims for civil penalties, even if successful, would
have no deterrent value, and would serve only the public's
generalized interest in Clean Air Act compliance. Id. at 1187.
But "a general interest common to all members of the public" does
not satisfy Article III. Id.

IV.

CONCLUSION
Given the forgoing reasons, the Court concludes that this

case is moot. Therefore, Zen-Noh's motion for reconsideration is
DENIED, and the complaint is DISMISSED WITH PREJUDICE.

New Orleans, Louisiana, this 31st day of July, 2013.
___

_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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