EPA Clean Air Act (CAA) Compliance and Defense - Federal Lawyer
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EPA Clean Air Act (CAA) Compliance and Defense

Experienced EPA Counsel for Clean Air Act (CAA) Compliance and Enforcement Matters

Carlton S. Patton
Carlton S. Patton
EPA Clean Air Act Team Lead
Former EPA CID Special Agent
Nick Oberheiden
Attorney Nick Oberheiden
EPA Clean Air Act Team Lead
envelope icon Contact Nick

The Clean Air Act (CAA) is one of several statutes administered by the U.S. Environmental Protection Agency (EPA). The EPA regulates both toxic air pollutants that can pose health risks, common air pollutants such as carbon monoxide, sulfur dioxide, and nitrogen dioxide, and also works to control emissions and pollution problems, such as greenhouse gas emissions and carbon dioxide emissions.

The EPA vigorously enforces compliance with all provisions of the CAA and Clean Air Act Amendments, and the regulations promulgated under the statute, and companies found to be in non-compliance can face steep penalties.

Increasingly, these include criminal penalties.

Under the EPA’s Strategic Civil-Criminal Enforcement Policy adopted in 2024, the agency is giving equal consideration to both civil and criminal enforcement, and it is working with the U.S. Department of Justice (DOJ) to seek indictments when warranted to enforce air quality standards and protect public health. As a result, CAA compliance is not simply a matter of effective corporate risk management, but it is essential for protecting company owners, executives, and key personnel from fines and prison time as well.

Experienced EPA Counsel for CAA Compliance and Defense

At Oberheiden P.C., we rely on extensive experience—including experience inside the EPA and DOJ—to provide effective CAA compliance and defense representation. Our lawyers and consultants work with clients in all industries, and we take a comprehensive and custom-tailored approach to helping our clients effectively manage their CAA-related risk. We help our clients develop and implement effective CAA compliance programs, and we help them prove compliance to the EPA when necessary. For clients that fall out of compliance, we also provide defense representation focused on securing informal resolutions that avoid unnecessary consequences.

Put our highly experienced team on your side

Dr. Nick Oberheiden
Dr. Nick Oberheiden

Founder

Attorney-at-Law

Lynette S. Byrd
Lynette S. Byrd

Former DOJ Trial Attorney

Partner

Brian J. Kuester
Brian J. Kuester

Former U.S. Attorney

Amanda Marshall
Amanda Marshall

Former U.S. Attorney

Local Counsel

Joe Brown
Joe Brown

Former U.S. Attorney

Local Counsel

John W. Sellers
John W. Sellers

Former Senior DOJ Trial Attorney

Linda Julin McNamara
Linda Julin McNamara

Federal Appeals Attorney

Aaron L. Wiley
Aaron L. Wiley

Former DOJ attorney

Local Counsel

Roger Bach
Roger Bach

Former Special Agent (DOJ)

Chris Quick
Chris J. Quick

Former Special Agent (FBI & IRS-CI)

Michael S. Koslow
Michael S. Koslow

Former Supervisory Special Agent (DOD-OIG)

Ray Yuen
Ray Yuen

Former Supervisory Special Agent (FBI)

7 Key Areas of Clean Air Act (CAA) Compliance

There are numerous aspects to Clean Air Act compliance; and, for companies that are subject to the CAA, identifying all relevant aspects is essential to effective environmental risk management. While companies in certain industries inherently come up against the CAA’s prohibitions and requirements in their day-to-day operations, other companies may only need to address specific aspects of the CAA with respect to certain operations, products, or services.

In any case, a comprehensive approach is key, as overlooking even a single relevant aspect of Clean Air Act compliance can leave companies exposed to EPA enforcement. At Oberheiden P.C., we provide comprehensive CAA compliance services—covering areas including (but not limited to):

1. General Duty Clause (GDC) Compliance

Section 112(r)(1) of the Clean Air Act, also known as the General Duty Clause (GDC), states that companies operating stationary sources that produce, handle, or store hazardous substances, “have a general duty to identify hazards which may result from . . . releases using appropriate hazard assessment techniques, to design and maintain a safe facility taking such steps as are necessary to prevent releases, and to minimize the consequences of accidental releases which do occur.” For companies that are subject to the GDC, compliance is essential, and non-compliance is a frequent cause of invasive EPA audits, inspections, and investigations.

2. National Emission Standards for Hazardous Air Pollutants (NESHAP)

The EPA established the National Emission Standards for Hazardous Air Pollutants (NESHAP) to regulate emissions of toxic air pollutants pursuant to Section 112 of the CAA. The NESHAP also apply to stationary sources (like power plants and factories) ; and, among other things, they establish stringent testing, reporting, and record-keeping requirements—which the EPA also strictly enforces through audits, inspections, and investigations.

3. Stack Testing

According to the EPA, stack testing is “one of the most important tools for determining whether a facility has the ability to comply with the CAA.” Regulated entities must comply with the Clean Air Act National Stack Testing Guidance, and they must be prepared to demonstrate their compliance to the EPA in order to avoid civil or criminal penalties.

4. Risk Management Program (RMP) Adoption and Implementation

For many companies, a key aspect of CAA compliance involves adopting and implementing a custom-tailored Risk Management Program (RMP). Among other things, an RMP must: (i) identify the potential consequences of a spill or other exposure incident; (ii) identify the steps the company is taking to prevent such incidents; and, (iii) establish the company’s emergency response procedures should an incident occur. We help companies develop CAA-compliant RMPs and deploy them when necessary.

5. New Source Review/Prevention of Significant Deterioration (NSR/PSD)

The EPA’s New Source Review/Prevention of Significant Deterioration (NSR/PSD) regulations under the CAA require new and modified major sources of air pollution to install Best Available Control Technology (BACT) or Lowest Achievable Emission Rate (LAER) technology, in addition to meeting numerous other requirements. If your company needs to comply with the NSR/PSD regulations, we can guide you forward.

6. Prevention of Accidental Releases

All companies with operations involving “extremely hazardous substances” (as defined by the CAA) have a duty to prevent accidental releases. Along with adhering to the general requirements imposed under Section 112(r) of the CAA, covered companies must also comply with the more-specific accidental release rules established under the EPA’s regulations.

7. EPA “Major Program Areas for Compliance Monitoring” Under the CAA

The EPA has identified several “Major Areas for Compliance Monitoring” under the Clean Air Act. Since these are among the EPA’s top enforcement priorities, they should be among companies’ top compliance priorities as well. At Oberheiden P.C., our lawyers and consultants have experience handling matters falling within the EPA’s Major Areas for Compliance Monitoring including (but not limited to):

  • Acid rain
  • Applicability Determination Index (ADI) requests
  • Asbestos
  • Mobile sources
  • Chlorofluorocarbons (CFS) and other Ozone Depleting Substances (ODS)

About Our Clean Air Act Compliance and Defense Practice

From compliance to defense, we assist companies throughout the United States with all aspects of CAA-related risk management. If your company needs to comply with the Clean Air Act, our lawyers can provide assistance through means including (but not limited to):

  • CAA Compliance Needs Assessments – Our lawyers and consultants can accurately and comprehensively identify your company’s obligations under the Clean Air Act and pertinent EPA regulations.
  • CAA Compliance Program Development – Once we identify all applicable statutory and regulatory provisions, we can develop a CAA compliance program that is custom-tailored to your company’s risks and needs.
  • Compliance Program Implementation, Training, and Enforcement – We can also assist with compliance program implementation, training, and enforcement—all of which are critical for avoiding (and surviving) scrutiny from the EPA.
  • CAA Compliance Audits – Conducting periodic internal CAA compliance audits is the only way that companies can effectively assess and proactively manage compliance on an ongoing basis.
  • EPA Enforcement Under the CAA – As former federal prosecutors and EPA agents, several of our team members have extensive experience on both sides of EPA audits, inspections, investigations, and enforcement proceedings under the CAA.

FAQs: Maintaining an Effective Clean Air Act (CAA) Compliance Program

What Does it Take to Effectively Manage Clean Air Act Compliance?

Effectively managing Clean Air Act compliance requires a comprehensive and custom-tailored approach based on the specific pollution risks that a company’s operations present. While the CAA (alongside the EPA’s regulations under the CAA) establishes numerous requirements, not all requirements apply in all scenarios, and different companies will need to approach their compliance obligations in different ways.

How Can I Determine if My Company’s Operations Are CAA-Compliant?

Determining if your company’s operations are CAA-compliant involves conducting a comprehensive internal compliance assessment. At Oberheiden P.C., our lawyers and consultants have extensive experience conducting these assessments, and we conduct them as a matter of course before advising our clients as to what is (and isn’t) necessary. Here, too, comprehensiveness is key, as overlooking any statutory or regulatory requirements can leave companies exposed to EPA enforcement.

What if My Company’s Operations Are Not CAA-Compliant?

If your company’s operations are not CAA-compliant, you will need to focus on bringing your company into compliance as efficiently as possible. Depending on the circumstances, along with implementing appropriate policies and procedures, this may also involve undertaking remediation efforts—and possibly even engaging with the EPA. Our lawyers and consultants can determine what is necessary, and we can guide your company step-by-step through the process of becoming CAA-compliant.

What Are the Penalties for Violating the Clean Air Act?

The penalties for violating the Clean Air Act depend on whether the violation is civil or criminal in nature. In civil enforcement cases, companies will typically face exposure to fines and injunctions (among other penalties), while criminal enforcement actions under the Clean Air Act can expose companies and individuals to fines and federal imprisonment.

How Do I Choose Outside Counsel for Clean Air Act Compliance?

When choosing outside counsel for Clean Air Act (CAA) compliance, it is important to choose a law firm that has specific—and significant—experience handling CAA-related matters. Effectively managing CAA compliance is not easy, and it requires an in-depth understanding not only of the statute itself, but also the EPA’s enabling regulations and enforcement priorities. At Oberheiden P.C., our lawyers and consultants have prior experience working for the EPA, DOJ, and other federal agencies, and we rely heavily on this experience when advising our clients on Clean Air Act compliance.


Contact the EPA Compliance and Defense Lawyers at Oberheiden P.C.

If you would like to speak with a member of our team about our CAA compliance and defense services, we invite you to get in touch. To speak with a senior lawyer at Oberheiden P.C. in confidence, please call 888-680-1745 or request a complimentary consultation online today.

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