Third Circuit Holds that Air Emission Exceedances Governed by a Permit Are Not Subject to a Duplicative CERCLA Reporting Requirement

July 7, 2021
MGKF Summer Associate Brielle Brown
MGKF Litigation Blog

A three-judge panel of the Third Circuit held on January 29, 2021 that air emission exceedances governed by a state air permit and duly reported to state or local authorities pursuant to the permit need not be reported again to the United States Environmental Protection Agency (“EPA”) pursuant to the Section 103 reporting requirements of the federal Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). Clean Air Council v. U.S. Steel Corp., No. 20-2215, 2021 U.S. App. LEXIS 18377, at *15 (W.D. Pa. 2021); 42 U.S.C. § 9603. The court’s reasoning came down to an interpretation of CERCLA that the phrase “subject to” was intended to mean “governed or affected by” rather than “obedient to.” Id. at *12. Thus, air emissions that violate relevant Clean Air Act permits are nevertheless “subject to” that permit and therefore exempt from CERCLA’s reporting requirement. Id.

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