A federal district court decision (Clean Air Council vs. US Steel Corporation, May 14, 2020) held that emissions from a Clean Air Act Title V-permitted facility that exceeded its permit were nonetheless “federally permitted releases” exempt from reporting under 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. For decades, EPA interpreted federally permitted releases to include only those that comply with the Clean Air Act, including its permit. 1992 and 1994 court decisions confirmed this policy. For example, accidental, toxic air releases could not be exempted and must be reported.
In this case, US Steel was sued for not reporting accidental releases of benzene from a process combusting coke which was not treated properly to reduce benzene emissions. The court concluded that federally permitted releases included even non-compliant air emissions, relying on the definitions found in the Clean Air Act.

Might this decision lead to many non-compliant situations being unreported? Many interpreters think not as a decision in one district court may not influence other courts. Therefore, companies should not rely on this as an “open door” to pollute illegally and not have to report it. There may still be risk for a company omitting to report non-compliant emissions under CERCLA despite the decision.

In early June, the federal government moved to both temporarily speed up the progress of construction projects and to weaken federal authority to issue stringent air and climate change rules. President Trump signed an executive order using “emergency authority” to allow agencies to waive required environmental reviews of infrastructure projects to be built during the current economic crisis. The EPA also proposed a new rule that changes the way the agency interprets cost-benefit analyses to enact Clean Air Act regulations, weakening the arguments for air pollution controls. This computational change would allow the EPA to justify weakening clean air and climate change regulations with economic arguments.

Typically, when performing an analysis of a potential new Air rule, the EPA evaluates cost of compliance for the industry against economic savings based on favorable health outcomes (reduced cancers, asthma attacks, etc. causing fewer premature deaths and hospitalizations). The EPA looks not only at the reduction of the pollutant in question, but also effects of reductions of other pollutants lowered at same time. The proposed change will eliminate the inclusion of additional economic benefits from reductions of other pollutants. This philosophy may spread to Clean Water and chemical rules.

Including co-benefits from reductions of other pollutants has been a driver of the exact standards in Clean Air Act regulations for decades. This rule has the potential to alter the math in such a way to potentially downplay the economic benefit to public health. Excluding them will show proposed stringent rules are more costly than they may actually be. Proponents say this will speed up the approval of more modest rules.

The White House says these actions are needed to help the nation climb out of the economic slowdown caused by the COVID-19 pandemic by speeding up critical infrastructure projects. The longer-term future of these actions depend on the outcome of this November’s election. If Joe Biden becomes President, he can undo the Executive Order with the stroke of a pen. If the proposed rule is not passed before the election or transition, it can be simply discarded. If it does become law before Mr. Biden takes office, Congress can undo it, although it may take time.
Please note that this is not a legal interpretation of the court decision, the Executive Order, or the proposed EPA rule. For a more detailed explanation, please engage a qualified legal professional.

CCES has the technical experts to provide technical assistance for you on compliance with Clean Air Act and State air quality rules. Contact us today at 914-584-6720 or at karell@CCESworld.com.