Third Circuit Limits Air Pollution Reporting Requirements

The Third Circuit Court of Appeals this week affirmed a lower court ruling that facilities with a Clean Air Act (CAA) permit are exempt from reporting to the U.S. Environmental Protection Agency airborne releases of hazardous substances that would be otherwise subject to reporting requirements under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). 

As described in Clean Air Council v. United States Steel Corporation, after two fires at its Mon Valley Works plant near Pittsburgh, U.S. Steel reported to the Pennsylvania Department of Environmental Protection, as required by its air permit, that emissions from the fires violated U.S. Steel’s CAA permits. It did not, however, report the releases pursuant to CERCLA because U.S. Steel believed that CERCLA expressly exempted the reporting of air emissions under a CAA permit or regulated by the CAA. The Clean Air Council brought suit, arguing that U.S. Steel should have reported the offending emissions to the federal government under CERCLA as well. Specifically, CERCLA exempts from reporting “federally permitted releases” including “any emission into the air subject to a permit or control regulation under” the CAA. See 42 U.S.C. §§ 9603(a), 9601(10)(H). The plaintiff argued that such emissions were not exempted from separate reporting obligations under CERCLA where the emissions were not in compliance with the CAA permit.

The Third Circuit disagreed, holding that the reading of the exemption was too narrow. The Court agreed with the lower court, ruling that any air emissions “subject to” regulation under the CAA unambiguously means emissions “governed or affected by” the CAA permit. Judge Stephanos Bibas, writing for the panel, found the CAA’s exemption at issue—in contrast to most other exemptions in the same section (i.e., other federal permitting programs such as the Clean Water Act), does not require compliance. Such omission is consistent with the CAA itself, which “repeatedly distinguishes” between situations where emissions must be compliant and sources are subject to regulation under the CAA. Moreover, reading “subject to” and “governed or affected by” was the best way to advance the cooperative federalism which undergirds the CAA.

While not specifically addressed, the decision may bolster arguments that other federal release reporting statutes do not apply, such as the Emergency Planning and Community Right-to-Know Act which requires certain releases of hazardous or extremely hazardous substances to be reported to state, county, and local governments.   

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