PHILADELPHIA – The U.S. Court of Appeals for the Third Circuit has affirmed a victory for U.S. Steel, upholding a lower federal court decision which found that the releases of hundreds of thousands of pounds of hazardous pollutants into the air from three of the company’s plants were exempted under federal law.
On Aug. 26, 2019, 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, headquartered in 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 (CERCLA, 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, the plaintiff argued U.S. Steel could have faced penalties 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, 2019, 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.”
On May 14, 2020, 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…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 decided.
Clean Air Council appealed the decision to the Third Circuit.
UPDATE
Third Circuit judges L. Felipe Restrepo, Stephanos Bibas and David J. Porter ruled on June 21 that the District Court was correct in its reasoning that the emissions were exempt under CERCLA.
Bibas authored the Court’s opinion in this case.
“All the arguments hinge on the meaning of two words: ‘Subject to.’ CERCLA exempts from reporting any ‘federally permitted’ emissions. That includes emissions ‘subject to’ certain Clean Air Act permits and regulations. The Council says that ‘subject to’ means ‘obedient to.’ Under its definition, an emission cannot be ‘subject to’ a permit or regulation that it violates,” Bibas said.
“But that is just one meaning of those words, and not the one that fits here. Rather, in context, ‘subject to’ means ‘governed or affected by.’ Since U.S. Steel’s emissions were governed by a Clean Air Act permit, that means they were ‘federally permitted’ under CERCLA and thus exempt from federal reporting. Because the District Court got that right, we will affirm its dismissal.”
U.S. Steel applauded the decision, in an issued statement.
“We respect the Third Circuit Court’s unanimous ruling that U.S. Steel made the appropriate notifications under the law,” spokesperson Amanda Malkowski said.
Eric V. Schaeffer, the Environmental Integrity Project’s Executive Director, said, “The ruling is unfortunate and does not advance transparency or accountability for polluters.”
The plaintiff was represented by Lisa W. Hallowell and Schaeffer 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 and James C. Martin and Colin E. Wrabley of Reed Smith, in Pittsburgh.
U.S. Court of Appeals for the Third Circuit case 20-2215
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