PITTSBURGH – U.S. Steel has won litigation filed by the Clean Air Council and a declaration that releases of hundreds of thousands of pounds of hazardous pollutants into the air from three of its Mon Valley Works plants were exempted under federal law.
On Aug. 26, the Pennsylvania-based Clean Air Council initially filed suit in the U.S. District Court for the Western District of Pennsylvania against U.S. Steel Corporation, of Pittsburgh.
According to its mission statement, Clean Air Council’s purpose is to “protect and defend the right to a healthy environment through sustainability and public health initiatives, using public education, community action, government oversight, and enforcement of environmental laws.”
The instant litigation concerned the Mon Valley Works, a steelmaking operation which includes three facilities located in Allegheny County: The Clairton Plant, the Edgar Thomson Plant and the Irvin Plant.
The suit said that a fire broke out on Christmas Eve 2018 at the Clairton Plant, which produces coke and coke oven gas to use as fuel in steelmaking processes. The fire damaged and shut down two key control systems that process coke oven gas to remove hazardous contaminants, such as hydrogen sulfide and benzene.
But despite these pollution controls being taken offline, U.S. Steel continued operating its coke ovens for more than three months. During this time period, it burned unprocessed, contaminant-laden coke oven gas as fuel and through flaring at the Clairton Plant, the Edgar Thomson Plant and the Irvin Plant, it is alleged.
“Based on U.S. Steel’s data and the groups’ estimates, this released hundreds of thousands of pounds of benzene (which can cause cancer), hydrogen sulfide (which can trigger asthma attacks and even death at high concentrations), and other hazardous pollutants,” the suit says.
Per the federal Comprehensive Environmental Response, Compensation, and Liability Act (also known as the “Superfund Law”), companies must immediately report unpermitted releases of hazardous substances to the National Response Center – which in turn notifies state and local agencies, and makes such reports available to the public.
Each failure to report a release is a violation of federal law, carrying a potential penalty of over $55,000 per violation.
The suit alleged that despite U.S. Steel’s released hazardous substances for over 100 days – between Dec. 24, 2018 and April 4, 2019 – in amounts exceeding lawful reporting thresholds, there was and is no record of a report by U.S. Steel to the National Response Center regarding the release of these hazardous substances.
Across the three plants, U.S. Steel could face a penalty of more than $50 million for its failure to report the releases.
U.S. Steel filed a motion to dismiss the complaint on Oct. 28, the crux of which was that Clean Air Council’s claims were “insufficient as a matter of law because the air emissions at issue are subject to air permits and control regulations under the federal Clean Air Act, which makes them exempt from the CERCLA reporting requirements at issue.”
“Certain types of releases are ‘federally permitted,’ which means that they are exempt from CERCLA’s reporting requirements. These ‘federally permitted’ releases generally fall into two categories: Those releases that are ‘in compliance with’ certain environmental permits and laws and those releases that are ‘subject to’ certain other environmental permits and laws,” per the motion.
“Importantly, air emissions releases that are ‘subject to’ Clean Air Act permits and control regulations are ‘federally permitted’ releases that are exempt from CERCLA’s reporting requirements. Because it is undisputed that U.S. Steel’s air emissions were subject to Clean Air Act permits and control regulations (which is the entire basis for a separate Clean Air Act lawsuit CAC has also filed against U.S. Steel based on the same underlying events), the emissions were exempt from CERCLA reporting, making CAC’s claims in this lawsuit insufficient as a matter of law.”
On Nov. 25, the Clean Air Council filed a response to U.S. Steel’s motion to dismiss, saying the release exemption pursued by the corporation involves examinations of fact which have not been completed and thus, the issue cannot be decided through a dismissal motion.
“Defendant erroneously asserts that its releases are ‘federally permitted releases’ subject to an exemption. In addition, defendant bears a heavy burden on a motion to dismiss, which defendant has not met. The federally permitted release exemption involves factual examinations that cannot be decided on a motion to dismiss,” the Clean Air Council said in its response.
“Further, releases of hazardous substances in excess of reportable quantities that resulted from a fire or that were in violation of a permit cannot escape CERCLA’s reporting requirements, especially when defendant has repeatedly reported this type of release. Finally, defendant’s interpretation that it is exempt from reporting its hazardous releases conflicts with the text, context, legislative history, and has been rejected by EPA adjudications that are to be afforded great deference.”
Two weeks later, on Dec. 9, U.S. Steel filed a reply brief to the Clean Air Council’s response, explaining that “the single issue that must be resolved in connection with U.S. Steel’s motion to dismiss is one of statutory interpretation: Whether the air emissions complained of by plaintiff Clean Air Council are exempt from CERCLA’s reporting requirements as ‘federally permitted releases’ because those emissions are ‘subject to’ permits or control regulations under a state implementation plan.”
“U.S. Steel respectfully requests that this Court utilize well-established principles of statutory construction to interpret the unambiguous phrase ‘subject to’ in accordance with its plain meaning,” the response read, in part.
“Because the air emissions complained of by CAC are ‘subject to’ U.S. Steel’s Title V Permits under the SIP, those releases are exempt from the reporting requirements of CERCLA 103(b). U.S. Steel respectfully requests that this Court grant its motion and dismiss with prejudice all claims asserted against U.S. Steel in the complaint.”
On May 14, U.S. District Court Judge Marilyn J. Horan granted U.S. Steel’s motion to dismiss the lawsuit, evaluating the applicability of the phrase “subject to” contained in CERCLA (i.e. “any emission into the air subject to a permit or control regulation”) and finding that the airborne releases complained of in the suit were in fact covered under that law.
“In summary, then, the phrase “subject to,” as used in Section 9601(10) of CERCLA, is unambiguous and does not require that the air emissions comply with a Clean Air Act permit in order to be exempt,” Horan said.
“Subject to” merely means that the responsible facility must abide by the requirements of that permit, as well as the requirements of the Clean Air Act and the reporting requirements found therein, rather than the reporting requirements of CERCLA. U.S. Steel’s operations at the Mon Valley Works facilities are subject to permits issued under the Clean Air Act, and thus the emissions at issue here are ‘federally permitted releases’ and exempt under CERCLA.”
Horan found the Clean Air Council’s claim that U.S. Steel violated CERCLA by failing to report to the NRC the emissions following the December 2018 and June 2019 fires thus fails under Federal Rule of Civil Procedure 12(b)(6), regarding failure to state a claim.
“Consequently, the Court does not need to reach the Clean Air Council’s other arguments. Lastly, the Court finds that amendment of the Complaint would be futile. The Clean Air Council’s claim was based on a faulty legal premise, and as such, there are no facts the Clean Air Council can allege to overcome its failure to state a claim for which relief may be granted,” Horan concluded.
The plaintiff was represented by Lisa W. Hallowell of the Environmental Integrity Project, in Washington, D.C.
The defendant was represented by James D. Mazzocco and Mark K. Dausch of Babst Calland Clements & Zomnir, in Pittsburgh.
U.S. District Court for the Western District of Pennsylvania case 2:19-cv-01072
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com