CHAPTER 9 MAJOR ENVIRONMENTAL LITIGATION AFFECTING THE PERMITTING PROCESS: SOME SELECTED CASES AND STRUCTURING RULEMAKING AND PERMIT LITIGATION

• Jurisdiction: United States

Mineral Resources Permitting
(Mar 1981)
CHAPTER 9
MAJOR ENVIRONMENTAL LITIGATION AFFECTING THE PERMITTING PROCESS: SOME SELECTED CASES AND STRUCTURING RULEMAKING AND PERMIT LITIGATION
Michael B. Barr
Hunton & Williams
Washington, D.C.

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.

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b. No NPDES permit pending a hearing

c. Imposition of NEPA requirements pending completion of hearing

3. The Litigation

a. Arguments over venue in Fourth and D.C. Circuit

b. Status of D.C. Circuit proceedings

c. Settlement discussions with EPA over NPDES, RCRA and UIC issues

4. Possible administrative relief

5. Likely Effect on Permitting

C. In Re Surface Mining Regulation Litigation, 627 F.2d 1346 (1980) (Litigation Over Interim Program Requirements under SMCRA.)

1. Background of Litigation

a. Litigation in District Court over Interim and Final Program Requirements

2. Issues on Appeal Affecting Permitting

a. The variance issue

b. Hydrologic and water quality regulations and relationship to Clean Water Act requirements

3. D.C. Circuit Opinion

4. Proceedings on remand, relationship to permanent program requirements and effects on surface mine permitting

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D. National Indian Youth Council v. Andrus, Civ. No. 78-586-C (D. N. Mex. Aug. 22, 1980), appeal pending, NIYC v. Andrus, No. 80-1492 (10th Cir.) (Multiple issues including adequacy of Discussion of reclamation in EIS)

II. Conduct...