Air

At MGKF, we recognize that the air quality regulatory arena is a complex and ever-changing field that implicates legal, technical, and operational considerations. Our air quality practice not only appreciates the importance of each of these disciplines, but fully addresses them. We have assembled a team of professionals who dedicate a substantial portion of their practices to air quality permitting, counseling, compliance, and enforcement issues.

Our partners practicing in this area, Carol McCabe, Todd Kantorczyk, Kate Vaccaro, Bryan Franey, and Michael Dillon provide a complete range of experiences and areas of emphasis. In recognition of the technical complexities posed by air issues, our air practice includes two full-time, in-house technical consultants, Michael Nines and Will Hitchcock. Kate Vaccaro also has an undergraduate degree in science.

Michael is a licensed professional engineer and is degreed as a civil/environmental engineer. Michael's real-world experiences have enabled him to excel in the problem-solving of complex air issues. In addition, Michael is certified in the evaluation of visible emissions (EPA Method 9), and has been trained in the application of the most current air quality models identified by the U.S. Environmental Protection Agency (EPA) for use in air quality permitting and ambient impact evaluation. 

Will holds degrees in both chemistry and environmental engineering, and has 8 years of experience working in the highly-regulated pharmaceutical manufacturing sector.  He has significant expertise in process modeling, emissions estimation, and statistical analysis, which he uses to support the permitting of complex industrial sources under a variety of state and federal regulatory programs. 

As the starting point to our air quality practice, our attorneys are knowledgeable in multiple facets of federal and state air quality law. Our knowledge and experience span all aspects of the application of air regulatory requirements to our clients' operations, including permitting, compliance counseling, enforcement issues, auditing, reporting, and regulatory development.

Permitting
Our professionals have extensive experience in preparing and reviewing air quality permit applications. Our approach toward air quality permitting starts with recognizing the importance of timely, accurate, and flexible air quality permits. We review each permit application with the understanding that the listed information will dictate the requirements ultimately imposed upon the regulated source. We also appreciate the importance of a complete and well-prepared permit application toward securing permit issuance as promptly as possible.

While securing an air quality permit is critical to enable source construction, the permit is of limited value if it does not provide necessary operational flexibility and account for the many operating scenarios and configurations that the facility may confront. We work closely with facility operators to identify these potential operating conditions and develop (or work with technical experts to develop) accurate, defensible, but not unduly conservative, emission estimates. We then identify for the facility operators the variety of regulatory requirements implicated by the alternative degrees of flexibility preserved through the permit. In particular, we have a complete understanding of the legal implications of air permit applications, including the imposition of state-based control requirements, as well as the federally-based non-attainment New Source Review and Prevention of Significant Deterioration programs.

Where appropriate, we work with our clients to file, pursue, and resolve administrative appeals of air quality permits that impose unnecessarily burdensome requirements on the operator, or do not properly accommodate the range of potential operating conditions for the affected source. We have also defended air quality permits against third-party appeals to preserve and maintain acceptable permits.

Compliance Counseling
Many of our clients are subject to the diverse spectrum of local, state, and federal air regulatory requirements, which govern every type of equipment from emergency generators at a commercial facility, to processing equipment at a large-scale manufacturing facility, to waste disposal and power generation facilities. We assist clients to identify effective and efficient means for ensuring compliance with applicable local, state and federal standards.

Because air quality regulations, in the first instance, rely upon expansive federal requirements such as New Source Performance Standards (NSPS) and National Emission Standards for Hazardous Air Pollutants (NESHAP), we have developed significant experience with federal regulations and standards, and use this experience to assist clients with their operations throughout the country. We also appreciate the importance of state-specific considerations, and have experience with many local jurisdictions. Our experience extends to numerous industries, notably including petroleum refining, chemical operations, hazardous and municipal waste management facilities, the food industry, electric generating units, printing and surface coating, natural gas exploration, production and gathering, and numerous manufacturing activities.

Enforcement
We have significant experience responding to administrative enforcement actions, at both the federal and state levels. We have defended clients against such actions and negotiated numerous consent decrees and administrative consent orders with relevant agencies. This experience extends from relatively minor state enforcement actions through national federal consent decrees, including under EPA's expansive petroleum refinery enforcement initiative. Recognizing the benefits of conciliatory negotiation, we routinely resolve such matters through cooperative agreement without resort to litigation. However, where necessary, we have the experience to respond to any objectionable government enforcement action through formal administrative and judicial appeals.

Auditing
Using our legal, technical, and business expertise and experience, we perform on-site facility evaluations to identify current compliance status, permitting needs, and opportunities for improving operational flexibility and minimizing compliance burdens. We have performed on-site evaluations ranging from individual process lines or emission units in a single facility, to massive and complex industrial facilities, or even a company's operations at multiple facilities. Where appropriate, we have advised clients with respect to disclosing compliance issues to enforcement agencies pursuant to federal and state voluntary disclosure and penalty mitigation policies, as well as in the context of due diligence efforts in the transactional setting.

Reporting and Risk Management Planning
Many of our clients are subject to state and federal reporting requirements, including emission statements, Title V semiannual deviation reports and compliance certifications, and NSPS and NESHAP semiannual or annual reporting requirements. We assist clients in understanding and complying with each of these types of reporting requirements, as well as the legal implications of such reporting. In addition, we regularly advise clients on their obligations under Section 112 of the Clean Air Act to develop plans to minimize the consequences of accidental releases as required under EPA’s Risk Management Program or the more expansive General Duty Clause.

Regulatory Development
We also assist clients in interacting with administrative agencies relative to regulatory development. We have participated directly in federal and state rulemaking efforts by preparing and filing comments on behalf of clients, working directly with regulatory agency representatives to address client concerns. In addition, we have challenged both federal and state regulations on behalf of specific clients where such regulations failed to appropriately consider client perspectives.


_{©2006 Photo by Cie Stroud}

Representative air matters in which the firm has been involved include the following:

• MGKF assisted clients in accurately evaluating the type and level of emissions associated with coffee and chocolate roasting activities.
• We counseled a major municipal waste landfill company on all aspects of landfill NSPS compliance requirements, including permitting standards, compliance obligations, reporting and recordkeeping standards, and landfill gas emission control programs.
• We assisted clients with respect to developing air regulatory programs for natural gas operations, including single source aggregation, New Source Performance Standards (Subpart OOOO) and state emission reporting and permitting requirements.
• The firm advised a major refinery concerning the Regional Greenhouse Gas Initiative and other climate change programs.
• We assisted a national refinery company in negotiating multi-facility consent decrees with the U.S. Department of Justice, EPA, and multiple state agencies under EPA's national petroleum refinery enforcement initiative.
• MGKF counseled clients on siting and regulatory issues associated with alternative energy generation, including through wind power, solid fuel gasification, landfill gas-to-energy projects, and waste coal fuel sources.
• The firm provided counseling on permitting issues related to organic and specialty organic chemical operations and batch processing operations involving multiple raw and intermediate material changes.
• We evaluated appropriate control technology for printing and publishing sources, including the nuances associated with add-on controls and emissions monitoring systems.
• We represented a power generator before federal appellate courts in challenging EPA's Cross-State Air Pollution Rule and the Mercury and Air Toxics Standards.