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Major Environmental Litigation Affecting the Permitting Process: Some Selected Cases and Structuring Rulemaking and Permit Litigation

Michael B. Barr, Mineral Resources Permitting (1981)


I. Major Environmental Litigation Affecting the Permitting Process

A.Chemical Manufacturers Association v. EPA, No. 79-1112 et al. (D.C. Circuit) (2nd round PSD and Nonattainment Litigation)

1.Background

a.PSD requirements of the Clean Air Act

b.Alabama Power Co. et al. v. Costle

c.Current EPA regulations

2.Issues in current litigation

3.Impact of litigation on PSD permitting

4.Possible Clean Air Act Amendments on PSD and Effect on Permitting

B.NRDC v. EPA No. 80-1607 et al. (D.C. Cir.) and Vepco v. EPA No. 79-1347 et al. (4th Cir.) — (Litigation Involving EPA's Consolidated Permit Regulations for the PSD, NPDES, RCRA and UIC Programs)

1.The Regulations

a.Consolidated Permitting in Theory — “one stop shopping or “one shop stopping”?

b.NPDES Substantive Requirements

c.RCRA Substantive Requirements

d.UIC Substantive Requirements

e.The “Procedural” or “Permitting” Regulations

2.NPDES Requirements that Could Block the Permitting Process for New Sources

a.Ban on construction without a final permit and EIS — extends to OSM issued EIS where NPDES permit is needed.



b.No NPDES permit pending a hearing

c.Imposition of NEPA requirements pending completion of hearing

3.The Litigation

a.