Air Emissions, Permitting and Control Strategies
We have demonstrated ability for achieving client-directed objectives in a wide variety of Clean Air Act matters, including:.
REGULATORY MATTERS
In the development and challenge of numerous rulemakings on both the state and federal levels, we have:
- Chaired the Ozone Transport Assessment Group.
- Served as the Director of the Illinois Environmental Protection Agency.
- Served as the Director of the United States Environmental Protection Agency Office of Air Quality Planning and Standards.
- Helped develop and implement emission trading programs in the State of Illinois and the cities of Chicago and San Diego.
- Participated in federal rulemaking proceedings on the Open Market Trading Rule, revisions to the National Ambient Air Quality Standards and revisions to the federal Prevention of Significant Deterioration (“PSD”) rules.
- Represented the Regional Commerce and Growth Association and the Missouri Chamber of Commerce as intervenors on a suit filed by the Sierra Club concerning the alleged failure of the State of Missouri to satisfy the ozone standard in the St. Louis non-attainment area by statutory deadline.
- Represented the Illinois State Chamber of Commerce in its successful challenge to EPA's rejection of a request by Illinois EPA to redesignate two counties in the Chicago area to attainment.
- Advised numerous clients concerning the impact on their operations of U.S. EPA’s call for various states to revise their State Implementation Plans (SIPs) to address the regional transport of NOx throughout the eastern United States.
- Assisted a national industry organization in its negotiation with the U.S. EPA concerning the development of the maximum achievable control technology standard (MACT) applicable to its members.
- Advised a national industry association in its negotiations with the U.S. EPA concerning selection of appropriate testing protocols for its members.
- Represented one of the largest trucking companies in California concerning the formation of statewide and local regulations concerning diesel exhaust.
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PERMITTING
Our lawyers have significant experience nationwide assisting clients in the preparation of permit applications and the negotiation of operating and construction permits. We have:
- Assisted clients in the preparation and negotiation of New Source Review (“NSR”) and Prevention of Significant Deterioration (“PSD”) permits throughout the United States.
- Advised clients concerning application of the revised PSD rules to their permitting activities.
- Assisted the largest source of volatile organic compound (VOC) emissions in the Chicago nonattainment area in obtaining a construction permit for the first major source construction permit in the nonattainment area under the Clean Air Act Amendments of 1990.
- Assisted numerous clients in preparing Title V permit applications and negotiating Title V permits in Illinois, Indiana, Michigan, Missouri, Mississippi, Oregon, Pennsylvania, South Carolina, Texas and elsewhere.
- Assisted clients in numerous acquisitions by facilitating the transfer of hundreds of permits to the acquiring companies.
- Advised the California South Coast Air Quality Management District concerning the first permit modification action the District took against any facility - additional control requirements to address a recurring nuisance problem.
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COMPLIANCE COUNSELING
Members of the Group have assisted numerous clients in implementing innovative, cost-effective compliance programs. We have:
- Participated in voluntary disclosures to EPA, under its audit policy for non-compliance situations, and obtained forgiveness from EPA of all economic and gravity-based penalties.
- Assisted numerous clients throughout the U.S. in meeting compliance obligations in a cost-effective manner, by obtaining variances and other types of site-specific relief.
- Counseled a client in connection with the development of an innovative agreement that would enable the business to operate more efficiently, while satisfying Clean Air Act emission limitations and permitting requirements.
- Counseled Native American clients regarding the air quality analyses necessary to demonstrate compliance with general and transportation conformity requirements, in furtherance of federal and their tribal goals of self-determination and self-sufficiency.
- Counseled numerous clients concerning air emission community notice obligations arising from California’s Proposition 65.
- Counseled several clients concerning health risk assessment requirements arising from California’s “toxic hot spots” legislations.
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EMISSION TRADING
We have been involved in emission trading issues since the mid-1970’s. We have:
- Substantial experience in most of the markets developed to reduce emissions by using the concept of air emission credits. This experience is included in the trading program for the Eastern U.S. on NOx issues, and creation and implementation of the VOC trading program for Northeastern Illinois. We also have experience in developing emission reduction credits for purposes of siting and permitting new facilities, including taking a charitable deduction for the value of retired emission credits.
- Assisted a client in certifying over 3,000 tons of emission reductions generated at its facility as “emission reduction credits” and donating 500 tons of those credits to the State of Illinois for air quality improvement and to the City of Chicago for economic development.
- Assisted a client in selling several hundred tons of emission reduction credits to another company in the Chicago non-attainment area.
- Assisted numerous clients in preparing emission information and negotiating emission baselines for the Illinois Emission Reduction Market System, a “cap and trade” emission trading program applicable to major sources in the Chicago non-attainment area.
- Assisted various utilities and other industrial groups in advancing emission trading and drafted model SO2 and NOx emission trading contracts.
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MOBILE SOURCE AND FUEL REGULATION
We also have experience with regulation of internal combustion engines and compliant fuels. Our lawyers have assisted clients in:
- Permitting for engine test cells operations throughout the U.S.
- Negotiations with U.S. EPA concerning the applicability of fuel additive registration requirements.
- Timely discovery and disclosure of potential non-compliance with diesel fuel regulations.
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STRATOSPHERIC OZONE PROTECTION REGULATION
Title VI of the Clean Air Act, and the Montreal Protocol create several requirements on a variety of businesses and other entities. We have advised clients concerning:
- The phase-out of ozone-depleting substances, the process for obtaining essential use allocations for continued use of Phase I controlled substances and the recordkeeping and reporting requirements applicable to users of ozone-depleting substances.
- Import and export requirements applicable to ozone-depleting substances.
- The scope of the authorization for medical devices using ozone-depleting substances.
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AIR ENFORCEMENT EXPERIENCE
We have experience in a wide range of air pollution enforcement matters. We have:
- Successfully negotiated, on an expedited schedule, a major Clean Air Act settlement on behalf of Wisconsin Electric Power Co., part of the U.S. EPA’s initiative against power plants. The $600 million settlement, expected to eliminate more than 105,000 tons of air pollutants annually from five coal-fired generating plants in Wisconsin and Michigan, resolves the federal government's claims that Wisconsin Electric did not comply with the New Source Review provisions of the Clean Air Act. We are involved in defending that settlement from challenges by citizen and state intervenors.
- Defended a Clean Air Act case by staying the federal enforcement case and then litigating before a state board which became the ultimate and complete defense to the federal action. United States v. Riverside Laboratories, 678 F. Supp. 1352 (N.D. Ill. 1988). We ultimately settled the dispute through a site-specific rule with U.S. EPA.
- Successfully obtained a variance for a client in California’s South Coast Air Quality District by convincing the District that the client was not subject to a particular regulation for which the District had issued a notice of violation asserting numerous years of non-compliance.
- Defended a variety of administrative enforcement actions before state and federal administrative bodies, including the applicability of regulations to a client’s operations, retroactive application of New Source Review, and the presence of more than one “source” at a single operating plant.
- Represented the South Coast Air Quality Management District in the largest air enforcement action in its history, which resulted in a settlement of over $81 million paid by British Petroleum.
- Represented a major aerospace company in connection with various personal injury and community notice lawsuits relating to purported off-site emissions from its aircraft production facility.
- Represented various companies in actions brought by the California Attorney General, or a private plaintiff on behalf of the People, in civil actions pursuant to California’s Proposition 65.
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