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Steel Giant Ruled Exempt From Federal Pollution Reporting

Federal reporting of harmful gas emissions would have “would have served no purpose," the Third Circuit found Monday, saying that the emissions made by U.S. Steel’s plants were permitted under the Clean Air Act and reporting to local bodies accordingly.

PHILADELPHIA (CN) — After two fires at its steel plant released harmful pollutants, it was enough for U.S. Steel to give Pennsylvania authorities a heads up, the Third Circuit ruled Monday, saying federal reporting on top of that would have been overkill.

The first fire occurred on Christmas Eve 2018, crippling air pollution controls at plant in Clairton, Pennsylvania, operated by the U.S. Steel subsidiary Mon Valley Works and causing a three-month release of harmful emissions over the Pittsburgh suburb. Among the gasses released were Benzene, and hydrogen sulfide, which smells of rotten eggs, plus coke from the large ovens that heat the coal to make iron and steel.

Just three months after the plant got going again, however, there was another fire. It is not disputed that U.S. Steel promptly reported the incidents to local authorities as required by the Clean Air Act. Where the Pittsburgh-based steelmaker erred, according to a complaint filed by the Clean Air Council, was in failing to notify the National Response Center under the federal Superfund law known as CERCLA or the Comprehensive Environmental Response, Compensation and Liability Act.

A three-judge panel affirmed dismissal of the action Monday, saying federal reporting “would have served no purpose” because of exemptions in the law.

“Since U.S. Steel’s emissions were governed by a Clean Air Act permit, that means they were ‘federally permitted’ under CERCLA and thus exempt from federal reporting,” U.S. Circuit Judge Stephanos Bibas wrote for the Philadelphia-based court.

Later in the 16-page opinion, the Trump-appointed Bibas noted: "The act’s cooperative federalism left the response to the state. And U.S. Steel remains subject to liability for its hazardous releases.”

U.S. Circuit Judge David Porter, a fellow Trump appointee, concurred, as did the Obama-appointed U.S. Circuit Judge L. Felipe Restrepo.

“We respect the Third Circuit Court’s unanimous ruling that U. S. Steel made the appropriate notifications under the law,” U.S. Steel spokeswoman Amanda Malkowski said on Monday.

“Environmental stewardship is a core value at U. S. Steel.  Following the December 24, 2018, fire at our Clairton plant, we made prompt notifications as required by our operating permits and the Clean Air Act,” she added.

But attorneys for the Pennsylvania environmental watchdog that brought the suit were less sanguine,

“There are no public records to show that U.S. Steel reported the vast amounts of benzene or coke oven gas released from its Mon Valley Works to Allegheny County or to any other regulatory authority during the fire, or while it operated with pollution controls offline for months thereafter,” said Eric Schaeffer, executive director of the Environmental Integrity Project.

Schaeffer called the panel’s ruling “unfortunate” and said on Monday that it “does not advance transparency or accountability for polluters.”

The Third Circuit heard appellate arguments in Philadelphia about six months ago.

U.S. Steel's challengers have noted that Clairton already has some of the dirtiest air in the state. At 22%, the town’s rate of child asthma is twice the state average and nearly three times the national average. The Clean Air Council says U.S. Steel's plant fires of 2018 and 2019 fires would have compounded existing problems for them. 

Inhalation of the pollutants emitted after the 2018 fire can be harmful, potentially causing respiratory problems and increasing the risk of stroke or heart attack.

Earlier this month, the Allegheny County Health Department fined U.S. Steel $201,500 for air pollution control violations and permit violations that occurred at the Clairton plant during the first quarter of the year.

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