Zen-Noh Grain Corporation v. Consolidated Environmental Management, Inc./Nucor Steel Louisiana
Filing
65
ORDER denying 25 Motion for Summary Judgment and the complaint in 12-1011 is hereby dismissed without prejudice.. Signed by Chief Judge Sarah S. Vance on 12/12/12. (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
ORDER AND REASONS
SECTION: R(1)
Plaintiff Zen-Noh Grain Corp. filed this action to enjoin
defendants, Consolidated Environmental Management, Inc. (“CEMI”),
Nucor Corporation (“Nucor”), Nucor Big Iron Holdings, Inc.
(“Nucor Big Iron”), and Nucor Steel Louisiana, LLC (“Nucor
Steel”) from constructing a proposed direct reduced iron (“DRI”)
manufacturing plant in St. James Parish.
Zen-Noh alleges that
the requirements of the Clean Air Act (“CAA”) and the federally
enforceable Louisiana State Implementation Plan have not been met
with regards to Defendants’ proposed unit one of the plant.
Zen-
Noh has filed a motion for summary judgment.1
The crux of Zen-Noh’s argument is that the construction
permit issued to defendants by the Louisiana Department of
Environmental Quality (“LDEQ”) authorizes a manufacturing unit
using a different type of DRI technology than defendants now plan
to use.
A Prevention of Serious Deterioration of air quality
(“PSD”) permit must authorize the construction of unit one under
the CAA.
1
In this case, the only PSD permit that has been issued
R. Doc. 25-1.
for the unit specified use of the Midrex process, which
defendants have since abandoned.
Instead, they have begun
construction of a plant that utilizes a different type of
technology licensed by HYL, not authorized or mentioned in the
PSD permit.
Defendants argue that the suit is unripe for adjudication
because the permit in question has been reopened for
reconsideration by LDEQ and a final revised permit has not yet
been issued.
They also argue that a permanent injunction is not
warranted because the reopening of the permit alleviates all of
the harms of which plaintiff complains.
Although Zen-Noh raises
serious concerns regarding CEMI’s compliance with the PSD program
in constructing the DRI plant, LDEQ’s reopening of the permit
avoids the possibility of harm to Zen-Noh and renders the suit
unripe.
Because the dispute is not ripe for adjudication, the
Court DENIES the motion for 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
2
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 “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(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
3
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 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”)2 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
2
“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
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
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 CAA, 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
5
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
This case is related to an earlier suit filed in this court
which sought to enjoin LDEQ from issuing a PSD permit to CEMI for
a pig iron manufacturing facility at the St. James Parish site.
Because LDEQ had not yet issued the permit, the Court dismissed
the suit as unripe.
The instant matter involves the DRI facility
and not the pig iron facility at issue in the previous suit.
The
proposed DRI 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, CEMI first applied for PSD and Part 70
permits for the DRI plant.3
In its initial application CEMI
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.
3
CEMI also explained in
LDEQ received the initial application on August 20, 2010.
After twice receiving additional information for CEMI, LDEQ
considered the application effectively complete on November 8,
2010. R. Doc. 25-2 at 9.
6
the Part 70 permit application that it was considering a
reformerless process:
Nucor is 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
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.4
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 comments questioned the choice between the HYL reformerless technology and the Midrex process.
One comment stated:
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.
4
R. Doc. 29 at 3.
7
Please clarify whether this inherently less polluting
process was considered in the Best Available Control
Technology (BACT) determination.5
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
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.6
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,”7 and “PSD-LA751...do[es] not allow Nucor to construct reformerless process
units.”8
On January 27, 2011, LDEQ issued PSD and Part 70 permits for
the construction and operation of the two DRI plants.9
5
R. Doc. 25-4 at 56-57.
6
Id. (quotations omitted).
7
Id. at 191.
8
Id. at 28.
9
R. Doc. 25-2; R. Doc 25-3.
8
The PSD
permit contained 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.10
Subsequently, CEMI decided to construct the first of the two
DRI plants utilizing the new technology licensed by HYL.
On
September 29, 2011, CEMI submitted an application with LDEQ to
modify its Part 70 permit in accordance with the changed plans.11
Both parties acknowledge that the HYL process is likely to be
more efficient and have lower emissions than the Midrex
process.12
The primary difference in the HYL technology is that
natural gas is reformed internally, rather than externally, as in
the Midrex process.
As CEMI 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.13
10
R. Doc. 25-2 at 11-72, 78-81.
11
R. Doc. 25-5; R. Doc. 29 at 4.
12
R. Doc. 29 at 15; R. Doc. 25-1 at 12.
13
R. Doc. 33-5.
9
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.”14
On March 8, 2012, LDEQ issued a modified Part 70 permit
authorizing the construction and operation of the unit with the
HYL process.15
The modified part 70 permit wholly adopted the
changes and limitations proposed by CEMI in its application for
the modification.
The changes to the permit included 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) were changed.16
Limits for the first three emission points
demonstrated substantial reductions for most of the criteria
pollutants, while the hot flare emissions limits mostly
increased.17
LDEQ classified the modification of the Part 70
14
R. Doc. 25-5 at 1-2.
15
R. Doc. 25-6.
16
Compare R. Doc. 25-3 at 23, with R. Doc. 25-6 at 27.
17
Id.
10
permit as a “minor modification,” for which public notice was not
required.18
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
National Emission Standards for Hazardous Air Pollutants.19
The
parties dispute whether LDEQ considered actually modifying the
PSD permit when it evaluated the Part 70 modification.
Plaintiff
alleges that “Nucor did not request, and LDEQ did not issue, a
revised PSD permit...to reflect the differences between the
Midrex and HYL process.”20
Defendants point 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.21
In early 2012, CEMI allegedly began construction of the HYL
DRI unit with the new technology and the original PSD permit
18
R. Doc. 25-6 at 6.
19
Id.
20
R. Doc. 25-1 at 6.
21
R. Doc. 29-1 at 1.
11
still in place.22
Zen-Noh sought to enjoin construction of the
unit on April 20, 2012.23
Zen-Noh filed a motion for summary
judgement on June 21, 2012.24
Also 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
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 CEMI 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
22
CEMI’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.
23
R. Doc. 1.
24
R. Doc. 25-1.
25
R. Doc 29-1 (quotations omitted).
26
Id.
12
HYL equipment in one unit of the DRI facility does not materially
change the original air quality analysis.”27
Alternatively, LDEQ
invited CEMI to identify and justify any necessary revisions to
the existing PSD permit.
The reopener stated:
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
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 CEMI, LDEQ issued a draft modified PSD permit for
public comment.30
In the draft, LDEQ reiterated that at the time
27
Id.
28
Id.
29
Id.
30
R. Doc. 33-5 (Draft PSD-LA-751(M-1)).
13
LDEQ approved CEMI’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
stated:
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...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 of the modified PSD permit laid out the top down
BACT process for determining the most stringent control
technique for each emission point.
The draft “replicate[d]
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 indicated that the LDEQ “has made a
31
Id. at 2
32
Id. at 3.
33
Id.
34
Id. at 9.
14
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
the Process Heater.36
In its submissions to LDEQ for
consideration in the reopener, CEMI 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 provided 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
35
Id. at 7 (emphasis added).
36
R. Doc. 33-5 at 116.
37
Id. at 112.
15
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 were
included in the PSD draft.
A final PSD permit authorizing the HYL changes has not
yet been issued.
Nevertheless, the language in the draft
permit and the representations of defendants at oral
argument suggest that the LDEQ will at some point issue a
final PSD permit similar to the draft.
The Court has taken
judicial notice of the fact that the period for public
comment on the proposed reopened PSD permit concluded on
October 8, 2012.39
Zen-Noh asks this court to enjoin the ongoing construction
of the plant until a final PSD permit authorizing the HYL process
38
Id. at 7.
39
Pursuant to Federal Rule of Evidence 201(B), a court may
take judicial notice of adjudicative facts that are not subject
to reasonable dispute, either because they are (1) generally
known within the territorial jurisdiction of the trial court or
(2) capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned.
Fed.R.Evid. 201(b). The Court determined the deadline for public
comment by reference to LDEQ’s Public Notice of the proposed
reopened PSD Permit and the subsequent notice extending the
period due to Hurricane Isaac.
16
is granted.
Zen-Noh contends that “Nucor has commenced
construction of a different type of DRI manufacturing process,
the ‘HYL’ process, which is not permitted at all under [CEMI’s
existing] PSD”.40
CEMI contends that the reopening of the permit
application by LDEQ renders this suit unripe because the relevant
state agency has yet to make a final permitting determination.
CEMI also argues that there will be no irreparable harm in the
absence of an injunction.
II.
STANDARD
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
40
R. Doc. 7 at 2.
17
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
“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.
18
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).
III. DISCUSSION
Defendants argue that the suit should be dismissed on the
ground that Zen-Noh’s claims are not yet 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 determining whether a claim is ripe for adjudication,
courts are to refer primarily to the “the fitness of the issues
19
for judicial decision and the hardship to the parties of
withholding court consideration. Abbott Laboratories, 387 U.S. at
149.
In making this determination, “the court should evaluate
three factors: (1) whether delayed review would cause hardship to
the plaintiff; (2) whether judicial intervention would
inappropriately interfere with further administrative action; and
(3) whether the courts would benefit from further factual
development of the issues presented.” Coliseum Square Ass'n, Inc.
v. Jackson, 465 F.3d 215, 244-45 (5th Cir. 2006)(citation and
quotations omitted).
“[A] case is generally ripe if any
remaining questions are purely legal ones.” Texas v. United
States, 497 F.3d 491, 498 (5th Cir. 2007)(quoting New Orleans
Pub. Serv., Inc. v. Council of the City of New Orleans, 833 F.2d
583, 587 (5th Cir. 1987)).
On the other hand, “[a] claim is not
ripe for adjudication if it rests upon contingent future events
that may not occur as anticipated, or indeed may not occur at
all.” Texas v. United States, 523 U.S. 296, 300 (1998)(citation
and internal quotation marks omitted).
In considering ripeness, events that occurred after the
filing of the complaint can be considered. See 13B CHARLES A.
WRIGHT
ET AL.,
FEDERAL PRACTICE
AND
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
20
intervened between consideration by the court of appeals and
decision by the Supreme Court”).
“[I]t 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.
“Intervening events
relevant to the ripeness inquiry should be considered and may be
determinative.” Id.
Turning to first consideration identified by the Fifth
Circuit in Colliseum Square, the Court finds no hardship to the
parties of withholding court consideration.
Noh does not directly discuss ripeness.
In its briefs, Zen-
But its position on the
issue is clear: the case is fit for adjudication because
regardless of future agency action, the ongoing construction of
the HYL plant is impermissible and should be enjoined.41
Nevertheless, with operation of the plant still months away,
plaintiff fails to demonstrate that any hardship would result
from withholding adjudication until the agency proceedings are
finished.
In its motion for summary judgment, Zen-Noh argued that if
plant operation begins under the existing PSD permit and
emissions are above HYL BACT limits but below Midrex levels, it
will have to wait 60 days to file an action for relief under §
41
See R. Doc. 7 at ¶ 2 (“Nucor has commenced construction
of a different type of DRI manufacturing process, the ‘HYL’
process, which is not permitted at all under PSD.”).
21
7604(a)(1).
It characterized its inability to file an immediate
suit under § 7604(a)(3) based on a violation of the PSD as an
infringement of its due process rights and irreparable injury.
Zen-Noh made this argument before LDEQ reopened the permit.
Regardless of whether it had merit then, this argument certainly
has no merit now.
As defendants point out, the reopening of the
permit addresses Zen-Noh’s contentions that no BACT analysis for
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.
LDEQ has required CEMI 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.
It is clear, therefore, that if
the LDEQ issues a final PSD permit that looks 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.42
42
Plaintiff has raised questions about the agency’s
procedural compliance with the Louisiana SIP in urging this court
to enjoin construction despite the reopener. But a suit under §
7604(a)(3) is limited to determining whether CEMI is constructing
the unit without or in violation of a PSD permit. Such a
determination would be premature in light of the reopener. The
proper route for challenging agency permitting procedures is the
state court system under La. Rev. Stat. Ann. § 30:2050.21.
22
Of course, it is not absolutely certain that LDEQ will issue
a modified PSD permit reflecting the limitations in the draft
before the unit is operational.
But defendants represented that
they expected the modified PSD permit to be finalized by the end
of 2012.43
Operation of the HYL plant is not scheduled to begin
until at least the second quarter of 2013.44
Thus any injury to
plaintiff “rests upon contingent future events that may not occur
as anticipated, or indeed may not occur at all.” Texas v. United
States, 523 U.S. 296, 300 (1998)(citation and internal quotation
marks omitted).
Even if CEMI somehow is able to begin operation before a new
PSD permit is issued, Zen-Noh can re-file an immediate suit in
federal district court under § 7604(a)(3), because CEMI would
allegedly be operating without a valid PSD permit. See Weiler v.
Chatham Forest Products, Inc., 392 F.3d 532, 538-39 (2d Cir.
2004)(plaintiff alleging that proposed building was a major
source of emissions and lacked the required PSD permit could
bring immediate § 7604(a)(3) suit despite state environmental
43
LDEQ’s other permitting decisions related to this project
support defendant’s estimate. The initial PSD permit for the DRI
facility was issued on January 27, 2011, approximately five
months after CEMI first applied for it on August 20, 2010. The
modified Part 70 permit was issued on March 8, 2012, just over
five months after CEMI applied for it on September 29, 2011. The
PSD permit was reopened on June 21, 2012, and the public comment
period ends on October 8, 2012, indicating that issuance is
likely by the end of the year.
44
R. Doc. 25-5 at 2.
23
control agency’s prior determination that a PSD permit was not
required).
Thus, Zen-Noh will not suffer a loss of its due
process rights or any other concrete injury regardless of whether
LDEQ issues the modified permit as expected or not.
This suit is
unripe because any hardship to the parties is “abstract and
hypothetical.” Monk 340 at 282.
The second Coliseum Square consideration also weighs against
adjudication of this suit because judicial review of the merits
of Zen-Noh’s claim would interfere with agency action. Coliseum
Square 465 F.3d at 245.
LDEQ has stated a preliminary
determination that the existing PSD permit allowed for
construction of the HYL plant.45
The explicit purpose of the
reopener is for the agency itself to weigh additional information
and determine whether modification of the permit is necessary,
and if so, in what ways.
In deciding the merits of this case,
the Court would have to make the same determination.
Whether
current construction is authorized by the existing PSD permit is
the central question of both proceedings.
Further litigation in
this Court would interfere with and duplicate the currently
ongoing state administrative proceedings.
It is also clear that the Court would benefit from further
factual development at the agency level.
The PSD program sets up
numerous substantive and procedural requirements for constructing
45
R. Doc. 29-1 at 1; R. Doc. 33-5 at 2.
24
a major emitting facility.
State agencies such as the LDEQ have
the expertise, experience, and procedural mechanisms to conduct
the air quality analyses and evaluations of proposed technologies
that are required in making PSD permit determinations.46
Through
the permit reopener, the LDEQ has requested additional
submissions from CEMI and public comment in order to determine
the proper BACT and emissions limits for the HYL plant.
This
Court, on the other hand, cannot look beyond the record
established by the parties.
Deciding the merits of this case
without access to the fully developed agency record would
therefore be imprudent.
IV.
CONCLUSION
Given all of the forgoing reasons, the Court concludes that
this case is not ripe for judicial review. Therefore, the motion
for summary judgment is DENIED and the complaint is dismissed
without prejudice.
New Orleans, Louisiana, this 12th day of December, 2012.
___
_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
46
Congress has given state agencies the primary role in
administering and enforcing the many components of the PSD
program, with the EPA playing an oversight role. ADEC v. EPA,
540 U.S. 461, 491 (2004) (quoting 57 Fed.Reg. 28,095 (1992)).
25
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