Air Quality

Our Air Quality team closely monitors new regulations and policy developments involving air pollution and counsel clients on their issues of concern. We have significant expertise in all the major federal and state air pollution arenas, including California, which is recognized as a leader in aggressively addressing air pollution. We have an unusually robust degree of expertise in the climate change and greenhouse gas control approach taken in California, as well as on the national stage. To ensure that our clients stay informed about important regulatory developments, we hold in-house seminars, give presentations at our clients' own compliance meetings, send environmental alerts and create extranets that allow us to provide secure, individualized compliance counseling to our clients in a timely and efficient manner.

Experience

Alston & Bird’s Air Quality Team is regarded as one of the most comprehensive in the country. We assist a wide range of clients regarding proposed regulations, particularly in California and Washington, D.C., and assist them in participating in the rule development process. We also routinely advise clients on environmental compliance issues arising under the Clean Air Act and state air quality programs, and represent them in administrative hearings to obtain variances when immediate compliance is not achievable. Where enforcement action has been taken, we negotiate settlements with regulators or defend the action, including defense of Clean Air Act citizen suits. Similarly, we guide clients through the air quality permitting process for capital projects and defend challenges to the permits before federal, state and administrative tribunals. Our experience includes working with industrial, institutional, infrastructure and public clients with respect to conventional air pollutants, toxic air contaminants and greenhouse gases. When we anticipate that industrial emissions may lead to toxic tort actions by facility neighbors, we coordinate with our colleagues in the Toxic Tort Group.

Accolades

We are leaders in our field, with seven partners on our team recognized among the foremost legal practitioners in the field of environmental law by Chambers USA describing us as “a phenomenal group at the top of the industry.” In addition, one of our partners is a former chair of the ABA Section of Environment, Energy & Resources. Our team also includes former senior enforcement officials from the Environmental Enforcement Section and Environmental Crimes Section of the U.S. Department of Justice, as well as the Office of General Counsel for U.S. EPA.

Bringing Value to Our Clients

Increasingly stringent rules regarding air emissions can impose substantial control costs, require changes in manufacturing processes, and drive evolution of product content, including substitution of raw materials. When we provide early warning of proposed regulatory changes, we give our clients the opportunity to participate in the regulatory process and, where justified, seek to have their unique issues addressed through exemptions, a special category of standards, or a more realistic timetable for compliance. Where special standards are not justified, we assist clients in developing the most effective compliance strategy aimed at achieving their business objectives.

• Represented the Director of Certification and Compliance Affairs of an auto manufacturer in defense of an EPA subpoena that required testimony and production of documents. The investigation involved inquiry into the company’s road load testing and certification. The individual represented was not charged nor named in any civil action.
• Provided counsel to a major manufacturer and importer of diesel engines concerning industrial, marine, non-road construction, agricultural and other related applications. Advised our client regarding federal Tier 4 standards, including emissions limits, the Transition Program for Equipment Manufacturers and flexibility allowances. Reviewed initiatives to expand business in replacement and rebuilt engine sectors and advised regarding compliance with EPA regulations.
• Provided legal advice to a heavy-duty equipment manufacturer on import and export of Tier 4 compliant non-road engines. Successfully defended the related EPA enforcement action for import of non-road engines involving alleged violations of certificates of conformity and improper labeling.
• Represented an engine equipment manufacturer in an EPA inquiry into company’s alleged sale of equipment that allowed individuals to remove a diesel truck’s particulate filter and reprogram the vehicle’s computer to allow the vehicle to operate without the filter.
• On behalf of a foreign-based automobile parts manufacturer, our team conducted an internal investigation and made voluntary disclosure to the EPA and state authorities of noncompliance with Clean Air Act permitting requirements at client facilities in Georgia, Illinois and North Carolina. The resulting settlement included no penalties for a three-year period of noncompliance.
• Obtained Technical/Engineering Hardship Exemption from the EPA for a domestic manufacturer of large non-road equipment concerning Tier 4 emissions using the "percent-of-production allowances" exemption in the EPA's Transition Program for Equipment Manufacturers.
• Provided compliance counseling to an outdoor consumer products manufacturer on appropriate Tier 2 and 3 requirements for engines purchased in China in connection with the client's normal inventory practice based on upcoming production schedules.
• Successfully defended foreign-based fuel marketers and settled four enforcement cases brought by the California Air Resources Board (CARB) for alleged violations of the fuels reporting and certification programs.
• Provided counsel and enforcement defense to a petroleum refiner for alleged violations of California Reformulated Gasoline (CaRFG) and advised client on related reporting and certification requirements.
• Provided advice, counsel and regulatory advocacy to a coalition of U.S. paint manufacturers on proposed amendments to the CARB volatile organic compounds (VOC) program.
• Defense of a major U.S. retailer against enforcement action brought by CARB for alleged violations of regulated products under the CARB VOC standards and the CARB Portable Fuel Container program.
• Conducted an internal investigation and made voluntary disclosure to the EPA of noncompliance with Clean Air Act permitting requirements at client facilities in North Carolina and Tennessee. Successfully negotiated no payment of civil penalties for noncompliance or economic benefit.
• We represent the National Association of Clean Water Agencies in challenging the Environmental Protection Agency's (EPAs) definition of sewage sludge as a nonhazardous solid material in the U.S. Court of Appeals for the D.C. Circuit. The rule being challenged ties into the EPA's rule on the combustion of sewage sludge in Sewage Sludge Incinerators under Section 129 of the Clean Air Act.
•  We represent a major oil refinery in obtaining variances from stringent California air quality rules to avoid full refinery shut down during periods when air pollution control or monitoring equipment has suffered breakdowns. We work with the company to develop mitigation plans acceptable to the agency staff.
• We successfully represented a major pipeline company to obtain all required air quality permits for a crude oil marine terminal in the Port of Los Angeles, including Best Available Control Technology determinations, calculation of required offsets and toxics modeling issues. In addition, we represented the company before the Port of Los Angeles during the groundbreaking adoption of its Clean Air Action Plan that imposes unprecedented controls on ocean-going vessels and other previously unregulated port sources.
• We represented a major supplier of specialty polymers in an enforcement action brought by a state air agency as a result of the company’s alleged failure to comply with new National Emissions Standards for Hazardous Air Pollutants (NESHAP) imposed on Organic Chemical and Coating Manufacturers. We reached an agreement with the state allowing for an extension of time for the company to complete modifications necessary to meet emissions standards without any accompanying penalty.
• We are currently advising a major manufacturer of off-road diesel engine construction equipment on a plan to modify and then export equipment into Mexico and South America.
• On behalf of the operator of a statewide electrical grid, we convinced the U.S. EPA to refrain from applying its reactivation policy to the re-start of a shut down power plant. This result allowed the power plant operator to avoid costly new source review requirements prior to re-start, plus allowed the electrical grid operator to avoid failure of the grid during an extended, unplanned outage of a nearby nuclear power plant.
• For more than two decades. we have represented a major trade association for the entertainment industry advising them on air quality regulatory matters affecting the industry’s operations in California. In addition to compliance counseling we represent the industry during rulemaking proceedings at the state and local level.
• We advise a mining and cement manufacturing client regarding compliance with NESHAP. We also assist in obtaining construction and operating permits for facility modifications, including, most recently, changes required to accommodate alternative fuels aimed at reducing carbon intensity.
• We are currently defending an Oil and Gas midstream services company in an EPA civil action for an alleged failure to meet benzene emissions standards at one of its industrial facilities.
• We represent a major oil and gas company with respect to air quality permitting and compliance at its California refinery and network of distribution terminals. We also have represented the client in hundreds of variance hearings spanning over 20 years. We provided air quality expertise to the team defending a civil enforcement action seeking more than a billion dollars in penalties.
• We currently provide regulatory advocacy on behalf of a coalition of personal care and household cleaning product manufactures before CARB and the South Coast Air Quality Management District (SQAQMD) on air quality regulations for household consumer products.
• We advised an importer of bulk dry products who, when designing a facility expansion, discovered that it had been in potential violation of its air permit for a number of years. We negotiated a modest penalty for past violations, and obtained an order for abatement allowing continued operation of the client’s marine terminal for several years while it designed and procured a unique device to capture and control emissions from ships at dock.
• For a high-technology company, we obtained an exemption to a proposed air quality rule that would have precluded the use of a solvent crucial to the client’s production process. The exemption allowed our client to continue its operations without limitation.