Morgan Lewis

Clean Air

Morgan Lewis has for decades represented and provided counsel to companies and industry associations on regulations, litigation and other issues related to the federal Clean Air Act and state air pollution control statutes. Led by one attorney with 35 years of experience in federal and state air quality issues and another who is the Justice Department's former head of all environmental litigation, including air regulatory and enforcement matters, members of our Clean Air Practice have assisted clients with national policy advocacy; new source pre-construction permitting, Section 114 requests and enforcement actions; Title V permitting; air toxics matters; litigation involving rulemaking and implementation; enforcement defense; transactional and disclosure issues; and responding to climate change related legal developments.

Taking a proactive approach, we have founded and counseled industry groups that provide information about government policies and that advocate a legal and regulatory structure supportive of our clients' business objectives. We also produce guidance materials to assist companies through the permitting process, and review and analyze the requirements clients face when contemplating new projects. When litigation or enforcement actions occur, our clients benefit from the services of a team that is anchored by former high-level government agency attorneys and litigators who have extensive backgrounds in defending businesses in actions brought by both public agencies and private organizations, and before administrative agencies as well as courts of all levels.

Key Attorneys

Leading the firm's Clean Air Practice is William Lewis, who has been working with state and federal air issues for more than three decades. For many years, his practice has focused on matters relating to implementation of the 1990 Clean Air Act amendments, and he has worked with major corporations and industry associations on trial and appellate court litigation, rulemaking proceedings, enforcement actions, and important programs overseen by the Environmental Protection Agency, including New Source Review (NSR) and Title V permitting. Earlier in his career, he was executive officer of California's Air Resources Board, and he was director of the congressionally established National Commission on Air Quality.

Our practice is also led by Ronald Tenpas, who formerly served as the US. Justice Department's Assistant Attorney General for the Environment and Natural Resources Division. As the federal government's senior environmental lawyer, Mr. Tenpas worked with senior government officials in formulating Clean Air Act regulations regarding both stationary and mobile sources, oversaw the defense of all such regulations when challenged, and supervised all of the federal government's clean air act enforcement actions, such as under the New Source Review and Prevention of Significant Deterioration (PSD) program and under the mobile source certification program for engine imports.

Chris McAuliffe counsels clients on air quality compliance and enforcement matters and negotiated one of the first voluntary consent decrees in the utility industry to resolve allegations of noncompliance with New Source Review and Prevention of Significant Deterioration (PSD) requirements. He later negotiated a unique amendment to that NSR consent decree that allows for additional time to install air pollution control technology.

Jeffrey Hurwitz has nearly two decades of experience representing numerous clients in clean air matters, including state and federal enforcement actions, compliance counseling, corporate transactions, New Source Review and Title V permitting.

Maxine Woelfling provides regulatory counseling, litigation of permitting and enforcement issues before state and federal administrative and judicial tribunals, and environmental issues in business and financial transactions. She formerly served as chair of the Pennsylvania Environmental Hearing Board.

Climate Change

With the federal government employing tools under the Clean Air Act and other statutes, states such as California and others moving aggressively to curtail emissions of carbon dioxide and other greenhouse gases believed to contribute to climate change, and lawsuits being filed against facilities that emit carbon dioxide, our attorneys are assisting clients in this new area of regulation and control. We have provided advice regarding financial disclosure documents, on behalf of an industry group filed comments with the EPA concerning the regulation of greenhouse gases, and assisted in compliance matters regarding a regional carbon emissions control program that employs a cap-and-trade system for emissions allowances.

Enforcement Defense

Drawing on their work regarding the many different programs under the Clean Air Act and state air pollution control laws—and often their own professional background in government service—our attorneys defend clients in enforcement actions brought by state and federal agencies. In some cases, EPA has been convinced not to pursue civil or injunctive relief and in others, the penalties paid have not been substantial.

National Policy Advocacy and Communication

Our attorneys have been deeply involved in the regulatory and policy debate regarding clean air issues since the 1970s. Through our representation of such advocacy groups as the Clean Air Implementation Project (CAIP), educational groups such as the Clean Air Act Information Network, and major trade organizations representing such diverse sectors as the chemical, petroleum and pharmaceutical industries, we have remained in the forefront of efforts to support industry's policy positions and to keep companies informed about new developments. We closely monitor regulatory and legislative developments and frequently produce timely explanatory advisories and analytical materials for our clients.

New Source Pre-Construction Permitting

Our attorneys have assisted clients with new source permitting since long before the federal government enacted the watershed 1990 Clean Air Act amendments. We provide ongoing advice regarding the applicability of federal PSD and NSR requirements and on related issues. Our attorneys conduct detailed reviews of proposed construction activities and we assess means of expediting projects and avoiding triggering NSR requirements. In reviewing past construction projects, we also advise clients on PSD and non-attainment NSR applicability issues.

Regarding both existing and planned projects, we assess issues related to calculation of plant emissions; obtain and review EPA headquarters and regional and state interpretations regarding PSD applicability issues; review how "best available control technology" has been determined; and address the applicability of PSD requirements to "de-bottlenecking" projects and the scope of the "routine maintenance, repair and replacement" exclusion. When necessary, we advocate on behalf of the client before federal and state permitting authorities. We also defend clients in enforcement actions and when their permits are challenged by environmental groups and third parties.

NSR Section 114 Information Requests and Enforcement Actions

We have played a major role in defending facilities and providing broad guidance to industry in connection with the EPA's PSD/NSR enforcement initiative. Our work on behalf of utilities, refineries, glass plants, and many other major industrial concerns has involved successfully narrowing the scope of requests for information spanning decades, and effectively defending enforcement actions. We negotiated one of the first consent decrees in this initiative. Our representations have frequently involved multiple facilities operated by the same company.

Rulemaking and Implementation Litigation

In the courtroom, Morgan Lewis attorneys represent clients in challenges to rulemaking under the Clean Air Act, and to the implementation of those regulations. Our recent successes include achieving a very significant savings for a Minnesota utility client we represented in a D.C. Circuit Court challenge of an EPA rule governing interstate air emissions. Our attorneys also advise industry defense groups and trade associations in a variety of actions that have produced significant results, such as reducing grounds on which EPA has brought enforcement actions.

Title V Permitting

Among the important contributions Morgan Lewis has made to the industry's understanding of air quality compliance is the firm's production of a manual on the subject, Title V Permitting Under the Clean Air Act. This publication, together with other materials prepared by our attorneys, has been used widely by industry and government officials to help guide them through the rule establishing EPA's comprehensive operating permit program. Through our representation of CAIP, we also have achieved industry wide successes, including the development of numerous recommendations to EPA that the agency accepted for simplifying and streamlining permit applications and the contents of the permits, and convincing EPA to relieve facilities implementing minor changes from the need for lengthy review.

On behalf of individual companies, we have assisted clients in reviewing and negotiating their Title V permits, preparing comments on draft and proposed permits, carrying out administrative appeals of permits, negotiating state permits, and conducting seminars for company employees. Often, our work has involved counseling companies seeking permits for numerous facilities. Our Title V representations have involved the programs in a majority of the states.

Toxic and Hazardous Air Matters

Our attorneys have extensively advised and assisted companies and trade associations on a broad range of federal and state air toxics issues. We have conducted detailed analyses of air toxics regulatory proposals, final regulations, EPA guidance, and state regulations. We have provided legal advice with regard to the applicability of many federal air toxics standards, including the National Emissions Standards for Hazardous Air Pollutants (NESHAP) regarding hazardous organics; the benzene waste NESHAP; refinery "maximum achievable control technology" (MACT); polymers and resins MACTs; off-site waste MACT; pharmaceutical MACT; and aerospace MACT. We have also conducted reviews and analyses of state programs and permitting requirements, including case-by-case MACT determinations.

Transactional and Disclosure Issues

We work with clients to ensure that environmental considerations are appropriately addressed in transactions and that the companies meet their disclosure obligations. We have conducted environmental due diligence for large businesses such as electrical generation companies and chemical manufacturers in connection with mergers, shared ownerships, power purchase agreements and similar matters.