Air Quality

Whether you find yourself entangled in California’s myriad environmental regulations or enmeshed in national regulatory compliance issues, our respected team will guide you through administrative and – if necessary – enforcement procedures to keep your business growing. You can breathe easier having Alston & Bird at your side.

Our Air Quality Team closely monitors new regulations and policy developments involving air quality and counsels clients on their issues of concern. We have significant expertise in all the major federal and state air quality and greenhouse gas (GHG) regimes, 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 GHG emissions reductions regulations in California and on the national stage. To ensure you stay informed about important regulatory developments, we hold in-house seminars, give presentations at your own compliance meetings, send environmental alerts, and create extranets that allow us to provide you with secure, individualized compliance counseling when and how you need it.

Experience

Alston & Bird’s Air Quality Team is one of the most comprehensive in the country. We assist a wide range of clients on proposed federal and state regulations, particularly in California and Washington, D.C., and assist them in participating in the rule-development process. We also routinely advise on environmental compliance and permitting issues arising under the Clean Air Act, state air quality programs, and regional air quality rules promulgated by California’s 35 regional air quality management districts.

We guide clients through the minefield of documentation and communication associated with agency investigations. If enforcement action has been taken, we negotiate settlements with regulators or defend the action, including defending Clean Air Act citizen suits. We guide clients through the air quality permitting process for capital projects and defend challenges to the permits before federal, state, and administrative tribunals. We represent clients in administrative hearings in a variety of contexts: to seek relief from rules through a variance when immediate compliance is not achievable, to resolve an enforcement matter through an order for abatement, or to appeal or defend agency decisions on permitting.

Our experience includes working with industrial, institutional, infrastructure, and public clients on 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 with the Mass Torts & Toxic Torts Team.

Bringing Value to Our Clients

Increasingly stringent rules on 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 you the opportunity to participate in the regulatory process and, when justified, seek to have your unique issues addressed through exemptions, a special category of standards, or a more realistic timetable for compliance. When necessary, we assist you in developing the most effective compliance strategy aimed at achieving your business objectives.

Accolades

We are leaders in our field, with nine partners on our team recognized among the foremost legal practitioners in environmental law by Chambers USA, describing us as “a phenomenal group at the top of the industry.” 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 the U.S. Environmental Protection Agency.

Representing a variety of industrial and commercial operators in the greater Los Angeles area in South Coast Air Quality Management District (SCAQMD) compliance, permitting, rulemaking, enforcement actions (including orders for abatement), variances, and strategic resolutions of notices of violations. The SCAQMD’s jurisdiction includes Orange County, most of Los Angeles County, and large swaths of Riverside and San Bernardino Counties and is one of the most active of California’s 35 regional air districts in its rulemaking and enforcement activities.
Representing vehicle fleet owners and operators doing business in California under California’s ambitious Advanced Clean Fleets Regulation, mandating a transition to zero-emissions medium- and heavy-duty trucks operating within the state.
Advising a medical waste and mobile shredding company on California’s zero-emissions (ZE) heavy-duty truck regulations (the Advanced Clean Fleet regulation), including engagement in rulemaking activities, counseling in ongoing state and national developments (including tracking and analysis of anticipated ZE truck rules in other states), and long-term strategic planning considerations given the challenges of California’s novel rules.
Advising a Fortune 500 company on SCAQMD compliance for its airport operations and emissions from cargo-handling equipment.
Representing a medical sterilization company in numerous administrative enforcement actions and permitting in multiple jurisdictions across the country, including defending public nuisance and negligence claims brought against it by the New Mexico Attorney General’s Office, and in California, navigating through a SCAQMD abatement order hearing, ongoing rule compliance, resolution of NOVs, and engagement in rulemaking efforts. We are also defending this company in toxic tort lawsuits in these jurisdictions associated with air quality emissions from these facilities, and our regulatory team works closely with our toxic tort team to ensure the client’s interests on all fronts are protected and advanced.
Advising a mining and cement manufacturing client on compliance with NESHAP and the regulatory implications – federal, state, and regional – of developing and employing a waste-derived engineered fuel for its cement kilns. We are also assisting in obtaining construction and operating permits for facility modifications, including changes required to accommodate alternative fuels aimed at reducing carbon intensity and incorporating the use of engineered municipal solid waste fuel, entailing review under CEQA, waste and recycling laws, and Title V air permitting considerations.
Advising warehouse operators on compliance with the SCAQMD’s WAIRE program, which imposes obligations on warehouse operators based on truck visits to and from the warehouse.
Advising an architectural glass materials manufacturer with numerous facilities in California and throughout the country in environmental regulatory compliance, including SCAQMD permitting, as well as negotiation with CalRecycle on notices of violations (NOVs) for alleged violations of California’s Rigid Plastic Packaging Container (RPPC) Program and ongoing compliance with that regulation.
Defended the director of certification and compliance affairs of an auto manufacturer against an EPA subpoena that required testimony and production of documents. The investigation involved an inquiry into the company’s road load testing and certification. The individual represented was not charged or named in any civil action.
Provided counsel to a major manufacturer and importer of diesel engines on industrial, marine, non-road construction, agricultural, and other related applications. Advised our client on federal Tier 4 standards, including emissions limits, the Transition Program for Equipment Manufacturers and flexibility allowances. Reviewed initiatives to expand business into replacement and rebuilt engine sectors and advised on compliance with EPA regulations.
Provided legal advice to a heavy-duty equipment manufacturer on the import and export of Tier 4 compliant non-road engines. Defended the related EPA enforcement action for the 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 a 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.
Conducted an internal investigation on behalf of a foreign-based automobile parts manufacturer 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 a technical/engineering hardship exemption from the EPA for a domestic manufacturer of large non-road equipment involving 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 Tiers 2 and 3 requirements for engines purchased in China in connection with the client’s normal inventory practice based on upcoming production schedules.
Defended foreign-based fuel marketers and settled four enforcement cases brought by the California Air Resources Board (CARB) for alleged violations of fuels reporting and certification programs.
Provided counsel and enforcement defense to a petroleum refiner for alleged violations of California Reformulated Gasoline (CaRFG) requirements and advised the 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.
Defended a major U.S. retailer against an 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. Negotiated no payment of civil penalties for noncompliance or economic benefit.
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. 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 oceangoing vessels and other previously unregulated port sources.
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.
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.
Convinced the U.S. EPA to refrain from applying its reactivation policy to the restart of a shut down power plant on behalf of the operator of a statewide electrical grid. This result allowed the power plant operator to avoid costly new source review requirements before restart, plus allowed the electrical grid operator to avoid failure of the grid during an extended, unplanned outage of a nearby nuclear power plant.
Advising for more than two decades a major trade association for the entertainment industry on air quality regulatory matters affecting the industry’s operations in California. In addition to compliance counseling, we are representing the industry during rulemaking proceedings at the state and local levels and routinely obtain variances from SCAQMD rules that allow them to optimize their operations.
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.
Representing a major oil and gas company in air quality permitting and compliance at its California refinery and network of distribution terminals. We have also 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 $1 billion in penalties.
Advising several food and beverage manufacturers on SCAQMD compliance with rules related to ovens, boilers, and refrigeration equipment, as well as SB54 and CalRecycle’s Extended Producer Responsibility (EPR) regulations that impose obligations on single-use food packaging.
Advised an importer of bulk dry products that, 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. We continued to advise this company through expansion at its Port of Long Beach terminal, including CEQA review for the project and amendments to the air permits.
Obtained for a high-technology company an exemption from 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.
Advised refineries on cap-and-trade in the context of both general compliance and implications for development projects, including review under CEQA.
Represented a Los Angeles–area refinery through modification of its Title V air permit, and associated CEQA review, as it underwent a comprehensive conversion from petroleum refining to renewable fuel refining. Defended the approvals in a CEQA lawsuit, ultimately obtaining a settlement satisfactory to both parties that enabled the project to proceed. Obtained numerous variances from California air quality rules on behalf of this refinery as it pioneered new technology in limited early phases of the conversion.
Counseled clients operating in many of California’s 35 regional air districts in all manner of administrative enforcement, permitting, and general compliance matters, including:
- Counseled a pharmaceutical manufacturer in air permitting and administrative proceedings, including obtaining a variance, before the Santa Barbara County Air Pollution Control District (APCD).
- Counseled a mining company on high-profile and controversial permitting actions before the Bay Area Air Quality Management District (BAAQMD).
- Advised a renewable biodiesel company on enforcement actions taken by the San Diego Air Pollution Control District (SDAPCD), including an abatement order hearing, modification of the conditions of the order, the response to and negotiation of the settlement of NOVs, and ongoing compliance.
- Advised a Bakersfield refinery on a variance and permitting before the San Joaquin Valley APCD; advised another Bakersfield refinery on the permitting implications of a company ownership change; and counseled a major Kern County oil and gas development company on air quality compliance implications associated with the development of future oil and gas resources countywide over a multiyear horizon.
- Counseled a mining company on general compliance and potential enforcement by the East Kern APCD.
- Counseled a mining company on the discovery of naturally occurring asbestos in compliance with Shasta County APCD rules.
- Advised a mining company on Mojave Desert APCD compliance and permitting for the use of engineered and alternative fuels in its cement kiln.
- Representing a Kern County, CA refinery in air permitting in the San Joaquin Valley APCD and CEQA compliance associated with conversion of the facility to renewable diesel processing.
- Representing a Kern County, CA refinery in compliance and enforcement actions, including obtaining a variance from and negotiating NOV settlements with the San Joaquin Valley APCD.
- Advising a battery manufacturer in SCAQMD matters, including permitting, NOV settlement, and ongoing compliance with recently amended rules.
- Obtained variances from SCAQMD rules with favorable conditions for a ski resort, a large public university, and an amusement park, which were also able to avoid the need to travel and appear before the SCAQMD hearing board.
- Represented a steel mill in obtaining a lengthy variance from provisions of a SCAQMD lead emissions rule, with conditions that are favorable to the client and allow for interim operational flexibility. Counseling through a concurrent Title V permit modification that will ultimately enable the facility to achieve compliance with the rule through an alternative operating protocol preferable to the client.
- Represented a public wastewater treatment agency in obtaining a lengthy variance from SCAQMD rules and advising the agency on Title V reporting matters.
- Advised a steel mill on the SCAQMD’s development of a new rule governing lead emissions and participated in negotiations with the air district that ultimately resulted in adoption of a rule satisfactory to the client.
Represented the National Association of Clean Water Agencies in challenging the EPA’s 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.
Represented a major oil refinery in obtaining variances from stringent California air quality rules to avoid full refinery shutdown when air pollution control or monitoring equipment has suffered breakdowns, and worked with the company to develop mitigation plans acceptable to agency staff.