Reporting Non-Compliant Air Emissions Under CERCLA: District Court Upends Longstanding EPA Interpretation

A recent federal district court decision in the Western District of Pennsylvania, Clean Air Council vs. United States Steel Corporation, No. 2:19-CV-1072, 2020 WL 2490023, at *1 (W.D. Pa. May 14, 2020), held that emissions from a Clean Air Act (CAA) 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 (CERCLA). This decision ran contrary to longstanding EPA 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. We recommend, however, that companies should follow developments but exercise caution before making