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Air Quality & Regulatory Compliance

Davis Graham & Stubbs LLP environmental lawyers have extensive experience representing clients in important aspects of air quality and climate change regulation and enforcement defense. We have participated in significant federal and state enforcement defense, litigation, and rulemaking proceedings under the Clean Air Act (CAA) and equivalent state statutes and regulations for several decades. Recently, we played a leading role in defending numerous oil and gas companies in EPA’s national enforcement initiative focusing on storage tank emissions at upstream oil and gas production facilities and assisted clients and regulators tackle the problem of ozone attainment and the related adoption of reasonable and effective control regulatory measures.

We know the challenges of demonstrating compliance and reporting variances from compliance under Title V operating permits, minor source construction permits, and agency information requests. We have handled many successful minor modifications of permits, while avoiding the triggering of major source applicability. We are familiar with the vagaries of permitting “aggregated” operations and have been directly and prominently involved in some of the most significant recent national CAA aggregation cases. We are also experienced at permitting and advising compliance for stationary engines, including those subject to New Source Performance Standards (NSPS) and National Emissions Standards for Hazardous Air Pollutants (NESHAP) regulations such as Quad O/Quad Oa, Quad I, Quad J, and the RICE MACT provisions. We have assisted in responding to burdensome EPA and state information requests regarding compliance with applicable air quality laws.

We have also successfully navigated Colorado Department of Public Health and Environment (CDPHE) Air Pollution Control Division applicability determinations, including top-down analyses for Best Available Control Technology (BACT) determinations, and Regulation No. 3 Reasonably Available Control Technology (RACT) determinations for client facilities, as well as various NSPS provisions and process plan requirements. We have handled several complex air quality enforcement actions, including a precedent-setting PSD judicial enforcement action by the Department of Justice and several Compliance Orders.

We understand the constant need for compliance evaluation and the implementation of potential corrective actions. Accordingly, we are well-versed in both state and Federal audit immunity laws and policies and the implementation of both large- and small-scale audits.

We continue to be a significant presence in Colorado’s Air Quality Control Commission and Oil and Gas Conservation Commission ongoing rulemaking efforts, representing both private oil and gas operators and local governments. These landmark rulemaking efforts stem from the recent Colorado Senate Bill 181 and Colorado Governor Jared Polis’ ongoing efforts to reduce statewide emissions.

Climate Change

Our clients have faced voluntary or mandatory greenhouse gas (GHG) reporting, new GHG emission requirements, emerging theories of potential liability in climate change litigation, and public disclosure of the costs and risks posed by climate change issues. We have the multidisciplinary skills and experience to help our clients meet these new and evolving challenges.

Representative Experience

Policy Analysis

  • Provide strategic advice related to federal, state, and regional air quality initiatives surrounding climate change
  • Advise clients on current and future impacts to business operations as a result of methane and climate change regulation
  • Assist various entities (including governmental agencies, NGOs, and corporations) in analyzing policy impacts of climate change in areas such as public disclosures, insurance trends, and local and state policy trends
  • Participate in several ongoing stakeholder efforts which inform and direct policy and regulatory efforts
  • Counsel clients on climate change impacts and considerations for proposed projects under the National Environmental Policy Act

Regulatory Compliance

  • Counsel oil and gas clients on GHG reporting under Subpart W
  • Advise oil and gas clients on implementation of Colorado’s new and evolving upstream methane regulations
  • Advise clients on New Source Review compliance following federal and state GHG regulatory initiatives and related litigation
  • Track climate change-related regulations for SEC disclosures and due diligence on transactional matters, particularly in the oil and gas sector
  • Assist clients in a variety of challenges related to water use, including water storage projects, water permitting and rights issues, and impacts from droughts, floods, and other extreme weather events
  • Advise clients on litigation and procedural challenges to state rulemaking efforts

GHG & the Clean Air Act (CAA)

  • Provide legal analysis regarding regulation of new, modified, and existing sources under CAA §111(b) and (d), as part of a collaborative project for the Environmental Council of the States (ECOS)
  • Represent regional oil and gas trade association in national litigation related to federal regulation of GHGs under New Source Performance Standards (NSPS)
  • Advise clients on evolving Best Available Control Technology (BACT) determinations under New Source Review (NSR) and Prevention of Significant Deterioration (PSD) programs
  • Counsel clients on permitting and compliance strategies related to fugitive methane emissions
  • Work closely with technical air quality experts to help clients address regulatory initiatives related to climate change, including ozone issues in the Denver North Front Range 8-hour Ozone Nonattainment Area
  • Defend oil and gas operators in CAA Citizen Suit litigation

New Technology

  • Counsel clients on a wide variety of issues related to increasing use of infrared cameras
  • Advise clients on development of various technology improvements to meet climate change demands, ranging from use of renewables in oil and gas fields, to development of advanced wind technology, improved water treatment, energy efficiency, alternatives to flaring produced gas, and other technological advancements
  • Assist startup companies in assessing climate change trends and potential impacts on availability of funding and other startup needs
  • Advise clients on the implementation and approval of alternative technologies to detect methane emissions

Government Relations

  • Utilize extensive governmental contacts to assist companies in advancing climate change and emission control related agendas and initiatives
  • Serve on various committees and panels designed to assist the state government in planning for and developing climate change modifications, including the Colorado Energy Office
  • Consult with regulatory staff and personnel regarding air quality policies and regulation

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