Type: Law Bulletins
Date: 06/01/2020

US Steel Not "Subject to" Suit Over Federal Emissions Reporting

A Pennsylvania federal district court judge has ruled that emissions “subject to” permits under the Clean Air Act are exempt from Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) reporting requirements, regardless of whether the emissions comply with those permits, dismissing allegations that United States Steel Corporation (U.S. Steel) violated federal law by not reporting excess air pollution in the aftermath of two fires at a coke manufacturing facility. See Clean Air Council v. U.S. Steel Corp., No. 2:19-cv-1072, 2020 WL 2490023 (W.D. Pa. May 14, 2020).

U.S. Steel owns and operates the Pennsylvania-based Mon Valley Works, a steelmaking operation comprised of multiple facilities, including the Clairton Plant. The Clairton Plant produces coke and coke byproducts for use as fuel in the steelmaking processes. In 2018, a Christmas Eve fire disabled two key pollution control systems at the Clairton Plant used to process coke oven gas to remove hazardous contaminants, like benzene and hydrogen sulfide. U.S. Steel continued to operate the plant with the pollution controls offline, resulting in increased emissions until the controls were repaired over three months later. Another small fire occurred at the plant in June 2019, again disabling the coke plant’s pollution controls and causing excessive emissions. In both instances, U.S. Steel reported the fires to the local entity responsible for enforcing the Clean Air Act, in accordance with local regulations and U.S. Steel’s Clean Air Act permits.

The Clean Air Council, a Pennsylvania-based environmental non-profit, filed suit in the U.S. District Court for the Western District of Pennsylvania, alleging that U.S. Steel was required, but failed, to report the unpermitted releases of hydrogen sulfide, benzene, and other coke oven gases to the National Reporting Center (NRC) pursuant to CERCLA. In response, U.S. Steel sought dismissal, arguing that the releases are exempt from CERCLA’s reporting requirements and are “federally permitted.”

Agreeing with U.S. Steel, the court dismissed the Clean Air Council’s complaint. The court’s decision turned on its interpretation of the phrase “subject to,” as found in Section 9601(10)(H) of CERCLA. Section 9601(10)(H) defines a “federally permitted release” as “any emission into the air subject to a permit” issued under the Clean Air Act. See 42 U.S.C. § 9601(10)(H) (emphasis added).

In its analysis, the court first considered “subject to” as defined in Black’s Law Dictionary and Merriam-Webster, concluding that the definitions did “not suggest that an emission that is subject to a permit is one that complies [with] the permit as much as they convey that such an emission is one that ought to comply with the permit. Having a duty to comply is different from actually complying.”

The court then considered the specific language used in the 11 subsections to CERCLA’s definition of “federally permitted release,” noting that the phrase “subject to” differed from six other subsections that specified exemptions for discharges and releases that are “in compliance with” permits and other regulations. “If Congress had intended that air emissions must be ‘in compliance with’ a Clean Air Act permit in order to be exempt, Congress could have – and would have – said so,” the court wrote, “just as it did six other times when defining ‘federally permitted release.’” Based on its analysis, the court concluded that because U.S. Steel’s operations at the Mon Valley Works facility were subject to Clean Air Act permits, the emissions resulting from the Clairton Plant fires were “federally permitted releases,” and exempt under CERCLA. Therefore, the Clean Air Council’s claim that U.S. Steel violated CERCLA when it did not report the excessive emissions resulting from the Clairton Plant fires to the NRC failed under Federal Rule of Civil Procedure 12(b)(6).

The court closed the case with its conclusion that a curative amendment to the Clean Air Council’s complaint would be futile. Because its claim was based on a faulty legal premise, the Clean Air Council could not allege facts that would overcome its failure to state a claim upon which relief may be granted. 

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