Air Emissions Ruling Undermines EPA Guidance On CERCLA

A recent decision by the U.S. District Court for the Western District of Pennsylvania, Clean Air Council v. U.S. Steel Corp., held that emissions from a Clean Air Act Title V-permitted facility that were not compliant with the facility's permit were nonetheless federally permitted releases that were exempt from reporting provisions under the Comprehensive Environmental Response, Compensation and Liability Act, or CERCLA, also known as the Superfund law. ¹

This decision ran contrary to long-standing U.S. Environmental Protection Agency guidance and administrative law decisions, which held that only compliant emissions could take advantage of the federally permitted release exemption. If adopted more broadly, this ruling could have significant impacts, exempting a group of previously regulated emissions from CERCLA reporting and even liability requirements.