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Rulemaking & Legislative Support

Agency rulemaking impacts the business decisions of our clients daily.

Our Group closely monitors rulemaking developments at the federal and state levels and provides strategic advice and guidance to our clients. Two of our Group members have held senior positions at the United States Environmental Protection Agency (EPA) and one of our lawyers served as counsel to the Illinois Pollution Control Board (IPCB), giving the group deep, well-rounded experience in the development of federal and state regulations.

Federal and State Rulemakings

ArentFox Schiff frequently represents clients embroiled in challenges to both federal and state rules and guides them as they develop comments on rulemaking proposals. Recent examples include ArentFox Schiff’s work on the Clean Power Plan, Greenhouse Gas Tailoring Rule, Coal Combustion Residual Rule, and the Cross-State Air Pollution Rule, sometimes called the Transport Rule. Our attorneys also assist clients with rulemaking proposals at the state level, including the Illinois Clean Air Interstate Rule (CAIR), Illinois Mercury Rule, Illinois BART rule, Indiana CAIR, and mercury emission rulemakings. We have also appealed and sought reconsideration of adopted rules, such as the federal CAIR and SO2 designation decisions. ArentFox Schiff attorneys also have worked directly with regulators to develop rulemaking proposals when the absence of existing rules, or the existence of outdated or imprecise rules, interferes with a client’s business objectives.

Rulemaking Relief

Many states have vehicles for industry to seek regulatory relief under certain circumstances and ArentFox Schiff’s Environmental Group has worked closely with clients to assess the client’s needs and provide strategic advice on whether regulatory relief is appropriate for the circumstances. Avenues that can be available include:

  • Site-Specific Rulemakings
    An example is our successful advocacy in obtaining a site-specific closure rule for an ash pond that had reached its life expectancy. Because existing rules did not adequately address ash pond closures, we drafted a rulemaking proposal to add a new section to the solid waste disposal regulations for the site. Our client’s proposal became a joint proposal supported by regulators and is used as a protocol for other surface impoundment closures in the state.
  • Variances
    ArentFox Schiff has helped clients obtain variances – temporary relief mechanisms provided through the IPCB – including variances from requirements of state mercury and water rules. ArentFox Schiff has also counseled clients seeking relief from temperature water quality limits. Thermal discharges to lakes, rivers, and other water bodies have gained increased scrutiny at both the federal and state levels due to changing weather patterns over time.
  • Provisional Variances
    Our attorneys have negotiated a variety of provisional variances – short-term relief negotiated with regulators – including relief from thermal discharge limits, adjusted boron standards, and mercury rules.
  • Adjusted Standards
    ArentFox Schiff has also helped clients obtain adjusted standards in Illinois – IPCB orders that provide a permanent variance to an otherwise applicable environmental regulation – including those for Stage II vapor recovery fueling requirements, the boron standard, and the Multi-Pollutant Standard of the Illinois Mercury Rule.

    The Environmental Group has significant experience prosecuting and defending against challenges to issued permits. ArentFox Schiff has appealed many Title V operating permits, National Pollutant Discharge Elimination System permits and state construction permits, including the appeals of dozens of Title V and air construction permits addressed through negotiation with a state permitting agency on behalf of a group of clients in the same industry. ArentFox Schiff has also defended against challenges to its clients’ permits, including NPDES permits before the IPCB and Prevention of Significant Deterioration permits issued by IEPA and appealed by third parties before the federal Environmental Appeals Board.

Legislative Support

When a regulatory approach is unavailable or insufficient, ArentFox Schiff’s attorneys help clients navigate the federal and state legislative system. Our team has worked with the executive and legislative branches of federal and state government to draft and successfully pass statutory changes to address a variety of land, air, and water issues.