When must polluters inform the federal government of hazardous emissions released into the atmosphere? Under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), facilities that release hazardous substances must
notify the federal government under threat of penalty. But CERCLA exempts facilities engaged in “federally permitted” releases—
including air emissions “subject to” the Clean Air Act (CAA)—from this mandatory reporting.
In Clean Air Council v. U.S. Steel, the Third Circuit enlarged this carve-out, ruling that exempted emissions “subject to” the CAA include emissions in violation of the CAA. Under this rule, the federal government will have less information about air pollution, possibly including greenhouse gas releases, which will undermine its ability to regulate air emissions. However, the CAA potentially gives the Environmental Protection Agency (EPA) statutory authority to bypass this CERCLA reporting carveout and effectively institute mandatory reporting by challenging states’ CAA implementation plans or state-issued permits.