Legal Issues in Cluster Rule Implementation, 1998 Cluster Rule Symposium Proceedings

This presentation will identify numerous issues that will arise in attempting to comply with the Cluster Rule. One major area of concern is compliance deadlines and other deadlines, some of which will come up in only a few months. The rules are quite different for direct discharges to surface waters, indirect discharges to municipal treatment plants, and air emissions. The impact of litigation challenging the Cluster Rule or challenging its application to individual mills, if any, will be described.

Closely related to compliance deadlines is the question of whether preconstruction (PSD/NSR) air permitting will be required for Cluster Rule compliance projects, as well as whether New Source Performance Standards will be triggered for wastewater discharges or air emissions from either those compliance projects or from capacity increases. For both air and water rules there is an “anti-backsliding” concern that could prevent a mill from taking full advantage of the BAT limits or could make opting into the Voluntary Advanced Technology Incentives Program a significant restriction on operating flexibility. Hazardous waste rules may likewise restrict MACT compliance options.

These and other legal issues in the implementation of the Cluster Rule will be described briefly, to highlight questions mills and their advisors may need to consider. It cannot in the time available identify all of the significant legal issues or substitute for case-specific legal advice.