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(Reuters) – A federal appeals court on Monday affirmed a lower court ruling that dismissed a lawsuit by an environmental watchdog alleging U.S. Steel Corp violated the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) when it reported to local, but not federal authorities, that its steel plant near Pittsburgh emitted air pollutants.
A panel of the 3rd U.S. Circuit Court of Appeals ruled that the steel giant correctly used an exception in CERCLA when it notified county but not Coast Guard officials that its Mon Valley Works facility emitted benzene, hydrogen sulfide and other pollutants after fires damaged critical pollution equipment.
The Clean Air Council, which sued the company last year, did not immediately respond to a request for comment. Eric Schaeffer, executive director of the Environmental Integrity Project who represented the Council, said: “The ruling is unfortunate and does not advance transparency or accountability for polluters.”
Amanda Malkowski, a U.S. Steel spokesperson said: “We respect the 3rd Circuit Court’s unanimous ruling that U.S. Steel made the appropriate notifications under the law.” The Pittsburgh-based company is represented by lawyers at Reed Smith and Babst Calland.
Writing for the panel, U.S. Circuit Judge Stephanos Bibas disagreed with the Philadelphia nonprofit’s interpretation of a provision of CERCLA as obligating, rather than exempting U.S. Steel from reporting the pollution to the Coast Guard’s National Response Center.
The federal agency keeps up with chemical discharges, oil spills and other emergency incidents of pollution within the United States.
Fires in 2018 and 2019 knocked out pollution controls for months that treat gas from coke ovens at the company’s Clairton Plant, the largest coke-producing plant in the United States.
Over that period, U.S. Steel could not fully process the gas. It nevertheless kept burning it as fuel for two nearby steel mills that are also part of the Mon Valley Works complex.
U.S. Steel reported the fires and the emissions of pollutants from the burning gas to the Allegheny County Health Department, in compliance with its Clean Air Act (CAA) permits at the steel facility. Pennsylvania implements the CAA through local agencies, making Allegheny County the authority to which U.S. Steel was required to report emission of the pollutants.
In its lawsuit, the Council claimed that U.S. Steel was also required to report the pollution to the National Response Center.
The Council argued that a provision in CERCLA that exempts reporting for emissions “subject to” CAA permits or regulations did not apply because the exception’s language only refers to emissions that conform with CAA requirements.
Bibas, who was joined by U.S. Circuit Judges Luis Felipe Restrepo and David Porter, disagreed with that reading.
When read in context, the clause “subject to” means that any emission “governed by” the CAA is exempt from federal reporting, he said.
Since U.S. Steel’s emissions were governed by a CAA permit, even though they violated that permit, they were federally permitted and therefore exempt from federal reporting, the judge added.
“In short … air emissions that violate relevant Clean Air Act permits are still ‘subject to’ those permits and so are ‘federally permitted’ and exempt from CERCLA’s scope,” Bibas said.
The case is Clean Air Council v. United States Steel Corp, 3rd U.S. Circuit Court of Appeals, No. 20-2215.
For Clean Air Council: Lisa Hallowell and Eric Schaeffer of the Environmental Integrity Project
For United States Steel: Mark Dausch of Babst Calland and Jones Martin of Reed Smith
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