SETTLEMENT AGREEMENT 

WHEREAS, Zen-Noh Grain Corporation (“Zen-Noh”) filed a First Amended Complaint 

in Zen-Noh Grain Corporation v. Jackson, Case No. 10-4367 (E.D. La.), against Lisa P. Jackson, 

in her official capacity as Administrator of the U.S. Environmental Protection Agency (“EPA”); 

WHEREAS, Zen-Noh therein alleged, inter alia, that EPA failed to perform a 

nondiscretionary duty under Clean Air Act (“CAA”) section 505(b)(2), 42 U.S.C. § 7661d(b)(2), 

to grant or deny within 60 days an administrative petition dated June 25, 2010, requesting that 

EPA object to PSD permit no. PSD-LA-740 and Part 70 operating permit no. 2560-00281-V0 

(collectively the “Nucor 2010 Permits”) issued by the Louisiana Department of Environmental 

Quality (“LDEQ”) to Consolidated Environmental Management, Inc.—Nucor Steel Louisiana 

(“Nucor”) for a pig iron manufacturing process in St. James Parish, Louisiana (the “June 2010 

Petition”); 

WHEREAS, Zen-Noh contends that it is entitled, inter alia, to a declaration that EPA 

failed to perform that nondiscretionary duty, an order requiring EPA to grant or deny the June 

2010 Petition by a certain date, an order requiring EPA to consider additional grounds for 

objection to issuance of the Nucor 2010 Permits, and an order requiring EPA to object to 

issuance of the Nucor 2010 Permits; 

WHEREAS, Zen-Noh further contends that it is entitled, pursuant to CAA section 

304(d), 42 U.S.C. § 7604(d), to an award of costs of litigation (including reasonable attorneys’ 

fees) with respect to the claims asserted in its First Amended Complaint; 
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WHEREAS, EPA does not concede that Zen-Noh is entitled to any relief sought in its 

First Amended Complaint and does not admit any allegation of fact or law alleged in Zen-Noh’s 

First Amended Complaint; 

WHEREAS, on May 3, 2011, Zen-Noh submitted another administrative petition 

requesting that EPA object to Title V permit no. 3086-V0 and PSD permit no. PSD-LA-741 

issued by LDEQ to Nucor for a direct reduced iron manufacturing process in St. James Parish, 

Louisiana (collectively the “Nucor 2011 Permits”); and to object to modified Title V permit no. 

2560-00281-V1 issued by LDEQ to Nucor for a pig iron manufacturing process in St. James 

Parish, Louisiana (the “May 2011 Petition”); 

WHEREAS, all proceedings in the matter of Zen-Noh Grain Corporation v. Jackson, 

Case No. 10-4367 (E.D. La.), are stayed pursuant to an Order entered April 12, 2011, upon 

EPA’s Unopposed Motion to Stay; 

WHEREAS, Zen-Noh and EPA (collectively the “Parties”) wish to effect a settlement of 

Zen-Noh Grain Corporation v. Jackson, Case No. 10-4367 (E.D. La.), without expensive and 

protracted litigation, and to avoid expensive and protracted litigation relating to the May 2011 

Petition; 

WHEREAS, the Parties have agreed to a settlement without admission of any issue of 

fact or law; 

WHEREAS, the Parties consider this Settlement Agreement to be an adequate and 

equitable resolution of the claims at issue in the above-referenced litigation and the May 2011 

Petition; 
3 

NOW THEREFORE, the Parties agree as follows: 

1. Not later than March 16, 2012, EPA shall sign an order or orders 

responding to the June 2010 Petition and the May 2011 Petition to the extent that such response 

is required under 42 U.S.C. § 7661d(b)(2). 

2. The June 2010 Petition states that “Zen-Noh adopts and incorporates by reference, 

as if fully set forth herein, the comments, facts, and arguments set forth in the Petitions for EPA 

Objection filed by Sierra Club and LEAN on June 25, 2010 (the ‘Sierra Club Petition’), as well 

as all of the supporting materials attached thereto or incorporated therein by reference.” The 

May 2011 Petition states that it “incorporates by reference the objections and exhibits presented 

by the Sierra Club and the Louisiana Environmental Action Network (or LEAN) in their petition 

to EPA to object to the issuance of the [Nucor] 2011 Permits.” Notwithstanding these statements 

in the May 2011 Petition and the June 2010 Petition, EPA is not hereby agreeing to respond by 

March 16, 2012, to those petitions by Sierra Club and Louisiana Environmental Action Network, 

either separately or as part of responding to the June 2010 Petition and the May 2011 Petition. 

3. The Parties agree and acknowledge that before this Settlement Agreement 

becomes final and binding upon EPA, EPA will promptly provide public notice of the proposed 

settlement in the Federal Register and an opportunity for public comment pursuant to CAA 

section 113(g), 42 U.S.C. § 7413(g). After this Settlement Agreement has undergone notice and 

comment, the Administrator and/or the Attorney General, as appropriate, will promptly consider 

any such written comments in determining whether to withdraw or withhold their consent to the 

Settlement Agreement, in accordance with section 113(g) of the CAA. After the Administrator 

and/or the Attorney General elect whether or not to withdraw or withhold their consent to this 
4 

Settlement Agreement, EPA will promptly provide written notice of that election to Zen-Noh. 

This Settlement Agreement shall become final on the date, if any, that EPA provides written 

notice to Zen-Noh that the Administrator and Attorney General consent to this Settlement 

Agreement. 

4. If the Administrator and/or the Attorney General elect not to withdraw or 

withhold their consent under Paragraph 3 of this Settlement Agreement, the Parties shall jointly 

file the Stipulation of Dismissal With Prejudice and Proposed Order of Dismissal with the Court 

in Zen-Noh Grain Corporation v. Jackson, Case No. 10-4367 (E.D. La.), pursuant to Fed. R. Civ. 

P. 41(a)(1)(A)(ii) and attached hereto as Exhibits A and B, within ten (10) business days after 

EPA has provided written notice of that election. If Zen-Noh fails to join in such a stipulation, 

EPA may move, pursuant to Fed. R. Civ. P. 41, to dismiss the action with prejudice and Zen-Noh 

shall not oppose such motion. 

5. Zen-Noh agrees that performance of the obligations described in Paragraph 1 of 

this Settlement Agreement shall constitute a full and complete settlement of all claims that ZenNoh has asserted or could have asserted against the United States, including EPA, under any 

provision of law in connection with Zen-Noh Grain Corporation v. Jackson, Case No. 10-4367 

(E.D. La.), and that Zen-Noh could assert against the United States, including EPA, under any 

provision of law in connection with the May 2011 Petition. Zen-Noh therefore discharges and 

covenants not to sue the United States, including EPA, for any such claims upon performance of 

the obligations described in Paragraph 1 of this Settlement Agreement. 

6. In the event EPA fails to fulfill the obligations described in Paragraph 1 of this 

Settlement Agreement, or in the event of a dispute between the Parties concerning the 
5 

interpretation or performance of any aspect of this Settlement Agreement, the disputing party 

shall provide the other party with a written notice outlining the nature of the dispute or failure to 

perform and requesting informal negotiations. If the Parties cannot reach an agreed-upon 

resolution within ten (10) business days after receipt of the notice, then Zen-Noh’s sole and 

exclusive remedy shall be the right to move the Court to reinstate Zen-Noh Grain Corporation v. 

Jackson, Case No. 10-4367 (E.D. La.), within 120 days after the Court enters an Order of 

Dismissal pursuant to Paragraph 4 of this Settlement Agreement and notwithstanding the 

dismissal with prejudice set forth in Paragraph 4 of this Settlement Agreement. No such motion 

shall be properly filed unless the disputing party has followed the procedure set forth in this 

Paragraph and provided the other party with written notice received at least ten (10) business 

days before the motion is filed. EPA does not waive or limit any defense relating to any such 

reinstated litigation. The Parties agree that contempt of court is not an available remedy under 

this Settlement Agreement. 

7. Nothing in the terms of this Settlement Agreement shall be construed to waive or 

limit any remedy or defense relating to the claims raised in Zen-Noh’s First Amended 

Complaint, nor does EPA concede that it has any legal duty to take the actions called for in this 

Settlement Agreement. 

8. Nothing in this Settlement Agreement shall be construed to limit or modify the 

discretion accorded EPA by the CAA or by general principles of administrative law, including 

discretion to alter, amend, or revise any responses or final actions contemplated by this 

Settlement Agreement. EPA’s obligation to perform the actions specified in Paragraph 1 of this 
6 

Settlement Agreement by the time specified therein does not constitute a limitation or 

modification of EPA’s discretion within the meaning of this Paragraph. 

9. Nothing is this Settlement Agreement shall be construed to confer upon the 

district court jurisdiction to review: (a) EPA’s order or orders responding to the June 2010 

Petition or the May 2011 Petition; or (b) any issues that are within the exclusive jurisdiction of 

the United States Courts of Appeals pursuant to CAA section 307(b)(1), 42 U.S.C. § 7607(b)(1). 

Nothing in the terms of this Settlement Agreement shall be construed to waive any remedies or 

defenses the Parties may have under CAA section 307(b)(1), 42 U.S.C. § 7607(b)(1). 

10. Nothing in this Settlement Agreement shall be construed as an admission of any 

issue of fact or law, nor to waive or limit any claim or defense, on any grounds, related to any 

final action EPA may take with respect to a permit for the pig iron manufacturing process or 

direct reduced iron manufacturing process operated in St. James Parish, Louisiana by Nucor. 

11. EPA agrees that any Stipulation of Dismissal With Prejudice pursuant to 

Paragraph 4 of this Settlement Agreement will be without prejudice to Zen-Noh’s right to move 

for costs of litigation (including reasonable attorneys’ fees). The parties agree that Zen-Noh 

shall have until 120 days after the Court enters an Order of Dismissal as provided in Paragraph 4 

of this Settlement Agreement to file a motion for costs of litigation (including attorneys’ fees). 

During this time the Parties shall seek to resolve informally any claim for costs of litigation 

(including attorneys’ fees). EPA reserves its right to object to the award of any such costs, and 

nothing in this Paragraph shall be construed as an admission or concession by EPA that Zen-Noh 

is entitled to or eligible for recovery of any costs or attorneys’ fees. 
7 

12. The obligations imposed upon EPA under this Settlement Agreement can only be 

undertaken using appropriated funds. No provision of this Settlement Agreement shall be 

interpreted so as to constitute a commitment or requirement that EPA obligate or pay funds in 

contravention of the Anti-Deficiency Act, 31 U.S.C. § 1341, or take actions in contravention of 

the Administrative Procedure Act, 5 U.S.C. §§ 551-559, 701-706, the CAA, or any other law or 

regulation, either substantive or procedural. 

13. This Settlement Agreement is the entire agreement between Zen-Noh and EPA in 

this case. All prior conversations, meetings, discussions, drafts, and writings of any kind are 

specifically superseded by this Settlement Agreement. 

14. Any term set forth in this Settlement Agreement may be modified by written 

agreement by counsel for the Parties. 

15. It is hereby expressly understood and agreed that this Settlement Agreement was 

jointly drafted by Zen-Noh and EPA. Accordingly, the Parties hereby agree that any and all 

rules of construction to the effect that ambiguity is construed against the drafting party shall be 

inapplicable in any dispute concerning the terms, meaning, or interpretation of this Settlement 

Agreement. 

16. Any notices required or provided for by this Settlement Agreement shall be made 

in writing (via electronic mail with a courtesy copy sent by U.S. mail, first class, postage 

prepaid, the same day ) and sent to the following: 

For Zen-Noh: 

Paul N. Vance 

James G. Burke, Jr. 

Baldwin Haspel Burke & Mayer LLC 

1100 Poydras Street 
8 

Suite 2200 

New Orleans, LA 70163 

Phone: (504) 569-2900 

Fax: (504) 569-2099 

Email: pvance@bhbmlaw.com 

 jburke@bhbmlaw.com 

J. Michael Bowman 

Plews Shadley Racher & Braun LLP 

1346 N. Delaware Street 

Indianapolis, IN 46202 

Phone: (317) 637-0700 

Fax: (317) 637-0711 

Email: mbowman@psrb.com 

For EPA: 

T. Monique Peoples 

United States Department of Justice 

Environment & Natural Resources Division 

Environmental Defense Section 

P.O. Box 23986 

Washington, D.C. 20026-3986 

Phone: (202) 514-9365 

Fax: (202) 514-8865 

Email: monique.peoples@usdoj.gov 

Melina Williams 

U.S. Environmental Protection Agency 

Office of General Counsel (2344A) 

1200 Pennsylvania Avenue, N.W. 

Washington, D.C. 20460 

Phone: (202) 564-3406 

Fax: (202) 564-5603 

Email: Williams.Melina@epamail.epa.gov 

 

17. Each undersigned representative of the Parties to this Settlement Agreement 

certifies that he or she is fully authorized by the party to enter into and execute the terms and 

conditions of this Settlement Agreement. By signature below, all Parties consent to this 

Agreement. 
9 

FOR EPA: 

Ignacia S. Moreno, Assistant Attorney General 

Environment & Natural Resources Division 

 

_________________________ 

T. Monique Peoples 

Environmental Defense Section 

Environment & Natural Resources Division 

U.S. Department of Justice 

P.O. Box 23986 

Washington, D.C. 20026-3986 

(202) 514-9365 

Date: ___________ 

FOR ZEN-NOH GRAIN CORP.: 

__________________________ 

Paul N. Vance 

James G. Burke, Jr. 

Baldwin Haspel Burke & Mayer LLC 

1100 Poydras Street 

Suite 2200 

New Orleans, LA 70163 

(504) 569-2900 

J. Michael Bowman 

Plews Shadley Racher & Braun LLP 

1346 N. Delaware Street 

Indianapolis, IN 46202 

(317) 637-0700 

Date: ___________ 

EXHIBIT A 

STIPULATION OF DISMISSAL 
UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF LOUISIANA

ZEN-NOH GRAIN CORPORATION, ) 

) 

 Plaintiff, ) 

 ) 

 v. ) Civ. Action No. 10-4367-SSV-SS 

 ) 

LISA JACKSON, in her official capacity ) Section R 

as Administrator, United States ) Division 1 

Environmental Protection Agency ) 

 ) 

 Defendant. ) 

STIPULATION OF DISMISSAL WITH PREJUDICE

Plaintiff Zen-Noh Grain Corporation and Defendant Lisa P. Jackson, in her official 

capacity as Administrator of the United States Environmental Protection Agency, hereby 

stipulate that the above-captioned matter is dismissed with prejudice pursuant to Fed. R. Civ. P. 

41(a)(1)(A)(ii), contingent upon the district court entering an order, in the form attached hereto, 

dismissing the above-captioned matter with prejudice, but expressly retaining jurisdiction for 120 

days from the date of the Court’s order to: (1) permit Zen-Noh Grain Corporation to file a 

motion for costs of litigation (including attorneys’ fees) as prescribed in the parties’ Settlement 

Agreement; and (2) permit Zen-Noh Grain Corporation to file a motion to reinstate this lawsuit 

as prescribed in the parties’ Settlement Agreement. 

Respectfully submitted, 

Dated: ______________, 2011 

Paul N. Vance 

James G. Burke, Jr. 

Baldwin Haspel Burke & Mayer LLC 

1100 Poydras Street 

Suite 2200 

New Orleans, LA 70163 
(504) 569-2900 

J. Michael Bowman 

Plews Shadley Racher & Braun LLP 

1346 N. Delaware Street 

Indianapolis, IN 46202 

(317) 637-0700 

 

Counsel for Plaintiff 

Dated: ______________, 2011 Ignacia S. Moreno, Assistant Attorney 

General 

Environment & Natural Resources Division 

 

_________________________ 

T. Monique Peoples 

Environmental Defense Section 

Environment & Natural Resources Division 

U.S. Department of Justice 

P.O. Box 23986 

Washington, D.C. 20026-3986 

(202) 514-9365 

Counsel for Defendant 
EXHIBIT B 

PROPOSED ORDER OF DISMISSAL 
UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF LOUISIANA

ZEN-NOH GRAIN CORPORATION, ) 

) 

 Plaintiff, ) 

 ) 

 v. ) Civ. Action No. 10-4367-SSV-SS 

 ) 

LISA JACKSON, in her official capacity ) Section R 

as Administrator, United States ) Division 1 

Environmental Protection Agency ) 

 ) 

 Defendant. ) 

ORDER OF DISMISSAL WITH PREJUDICE

Plaintiff Zen-Noh Grain Corporation (“Zen-Noh”) and Defendant Lisa P. Jackson, in her 

official capacity as Administrator of the United States Environmental Protection Agency 

(“EPA”) (collectively, the “Parties”), having filed a Stipulation of Dismissal With Prejudice, and 

the Court being duly and fully advised in the premises and finding that this Action should be 

dismissed; 

IT IS HEREBY ORDERED that this Action is dismissed with prejudice pursuant to Fed. 

R. Civ. P. 41(a)(1)(A)(ii), provided however that the Court shall retain jurisdiction for 120 days 

from the date of this Order to: (1) permit Zen-Noh Grain Corporation to file a motion for costs of 

litigation (including attorneys’ fees) as prescribed in the parties’ Settlement Agreement; and (2) 

permit Zen-Noh Grain Corporation to file a motion to reinstate this lawsuit as prescribed in the 

parties’ Settlement Agreement. 

So ordered. 

New Orleans, Louisiana, this ________ day of ____________________, 2011. 

HONORABLE SARAH S. VANCE 

UNITED STATES DISTRICT JUDGE