Perhaps no industry source category implicates more air quality regulatory issues than the energy sector. The conversion of most fuel types for electricity generation results in potentially significant air emissions, is the subject of numerous complex regulations, and has attracted scrutiny from state and federal enforcement authorities. Similarly, the production, refining, distribution, storage, and even sale of petroleum products result in emissions to varying degrees, triggering permitting requirements, regulatory standards, and emission control obligations.
We have represented numerous companies in the energy industry sector. Our air quality professionals have provided regulatory counseling on air quality compliance requirements, assisted companies in securing relevant permits while maximizing operational flexibility and minimizing regulatory burden, and responded to state and federal enforcement activity for facilities in each of the following categories:
- coal and waste-coal-fired electric generating units;
- independent power producers, including cogeneration units;
- petroleum refineries;
- petroleum storage terminals and distribution facilities;
- natural gas compressor stations, gathering systems and distribution operations throughout the Marcellus Shale region;
- marine loading operations, barge and tanker transfer activities;
- landfill gas recovery and electricity generation;
- ethanol production and refining; and
- alternative energy generation facilities.
MGKF's air practice for energy sector clients encompasses a variety of issues, such as the following:
Compliance Counseling and Permitting: In order to provide effective counsel in this area, the professionals in our air practice have become well versed in applicable federal and state regulations, including relevant New Source Performance Standards ("NSPS") and National Emission Standards for Hazardous Air Pollutants ("NESHAP"). Further, we advise clients on obligations and compliance options under the federal acid rain regulations, federal and state mercury regulations, and interstate trading programs, including those under the Clean Air Interstate Rule ("CAIR"), the nitrous oxide ("NOx") emission trading requirements under the Ozone Transport Region Memorandum of Understanding, and the NOx budget program implemented under the Section 110 SIP Call.
We also advise clients concerning the generation, preservation, and trading of emission credits, including emission reduction credits, acid rain allowances, and NOx allowances. In this context, we have negotiated numerous agreements for the sale and purchase of such emission credits. Similarly, we have worked with many companies to generate, preserve, and maximize such credits and allowances for future regulatory compliance or simply to maximize value.
The construction or modification of energy facilities may implicate the complex Nonattainment New Source Review ("NNSR") and Prevention of Significant Deterioration ("PSD") programs. We have extensive experience in evaluating NNSR/PSD applicability, performing complex netting analyses, and advising clients concerning compliance options under NNSR/PSD.
Enforcement: The U.S. Environmental Protection Agency ("EPA"), through the U.S. Department of Justice ("DOJ"), and state authorities have initiated enforcement actions against many companies in the industry sector for alleged noncompliance with air quality requirements. We have represented such companies in addressing these enforcement actions, including responding to information requests, administrative enforcement orders, and federal complaints. In this context, we have defended companies from such allegations and negotiated many consent orders and consent decrees to resolve such claims.
Regulatory Challenges: MGKF has represented companies and trade associations to challenge regulations or regulatory applicability determinations in the federal appellate courts. These actions have included challenges to the NOx SIP Call rule, federal CAIR, Clean Air Mercury Rule, and Cross-State Air Pollution Rule (“CSAPR”) regulations, and facility-specific regulatory applicability determinations.
Climate Change Developments: We closely track all climate change legislative and regulatory developments at both the state and federal levels concerning greenhouse gas monitoring, quantification, and possible control. MGKF advises clients concerning such developments and has assisted clients in participating in the legislative and regulatory development processes. We also work with clients in evaluating strategic opportunities for enhancing their position with respect to probable regulation in this area. Among other programs, we have worked with the Regional Greenhouse Gas Initiative ("RGGI") in the Northeastern states and tracked state-specific regulatory development under this program in order to advise and assist clients concerning obligations and opportunities for compliance.
©2006 Photo by Cie Stroud
The following list summarizes a few of our representative air matters in the energy sector:
- MGKF represented several independent power producers with respect to siting and permitting requirements for electric generating unit projects, secured all necessary permits, and undertook the defense of certain permits in response to third-party appeals.
We represented a trade association in litigation before the D.C. Circuit Court concerning significant federal regulatory programs for electric generating units, including the Clean Air Mercury Rule ("CAMR"), the Clean Air Interstate Rule ("CAIR") and the Cross-State Air Pollution Rule (“CSAPR”).
We counseled clients with respect to developing air regulatory programs for natural gas operations, including New Source Performance Standards (Subpart OOOO) and state emission reporting and permitting requirements.
- The firm advised a national refining company on regulatory and legislative developments associated with greenhouse gas control, as well as specific requirements under the Regional Greenhouse Gas Initiative.
- MGKF assisted refiners with specific regulatory and permitting requirements associated with renewable/clean fuels, including securing permits for an ethanol production plant and providing regulatory counseling regarding compliance with the Renewable Identification Number ("RIN") program.
- We assisted clients addressing 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 counseled clients in the preservation and trading of emissions reduction credits ("ERCs") and emission allowances and in negotiating agreements governing the purchase and sale of ERCs and allowances.
- We provided regulatory counseling and permit analysis under EPA's acid rain program.
Seminars & Speaking Engagements
- March 22, 2018presented by Trinity Consultants
- February 27, 2018
- June 22, 2017presented by PENJERDEL
- September 27, 2016a program of the Urban Land Institute Philadelphia
- January 13, 2020The Philadelphia Business Journal
- June 2, 2021
- Are Changes to EPA’s Risk Management Program “Ripe for the Picking” in the Early Days of the Biden Administration?February 16, 2021
- January 20, 2021
- January 19, 2021
- January 12, 2021
- January 11, 2021
- New Jersey PACT – Regulatory Activity to Expect in 2021 for Control of Greenhouse Gas Emissions and Land Use RegulationJanuary 11, 2021
- January 11, 2021
- January 11, 2021
- Trump’s EPA Makes a Late Push to Revive the Startup, Shutdown, and Malfunction Exemption, but Will It Get Out of the Starting Gate?January 11, 2021
- January 11, 2021
- Public Comment Period Opens on Proposed Rulemaking to Establish Pennsylvania as Member of Regional Greenhouse Gas InitiativeNovember 12, 2020
- January 21, 2020
- January 14, 2019
- January 14, 2019
- July 5, 2017
- January 23, 2017
- January 22, 2017
- January 22, 2017
- September 29, 2016
- April 28, 2016
- January 25, 2016
- Pennsylvania EHB Upholds DEP Aggregation Determination - May Affect Source Aggregation in the FutureJanuary 25, 2016
- August 16, 2013
- July 31, 2013
- May 9, 2013
- May 3, 2013 Initial Compliance Deadline for New Air Standards for Existing Reciprocating Internal Combustion Engines at Area SourcesMay 9, 2013
- February 17, 2012
- November 10, 2011
- November 9, 2011
- November 5, 2011
- July 14, 2010
- Commonwealth Court of PA Holds that Natural Gas Act Does Not Divest the Environmental Hearing Board of Jurisdiction Over Appeals of Agency ActionsJune 25, 2021MGKF Litigation Blog
- January 27, 2021MGKF Litigation Blog
- December 8, 2020MGKF Litigation Blog
- September 28, 2020The Legal Intelligencer
- January 13, 2020Law360
- November 21, 2018New Jersey Law Journal
- September 17, 2018The Legal Intelligencer
- August 6, 2018The Legal Intelligencer - Energy & Environmental Law Supplement
- June 20, 2018MGKF Litigation Blog
- January 13, 2017The Legal Intelligencer
- October 20, 2015MGKF Litigation Blog
- August 21, 2013MGKF Litigation Blog
- September 6, 2012Association of Corporate Counsel's "Green-house Counsel"
- February 24, 2012The Legal Intelligencer
- December 9, 2011The Legal Intelligencer
- May 25, 2011Westlaw Journal Environmental
- April 8, 2011The Legal Intelligencer