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114th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 114-598
======================================================================
OZONE STANDARDS IMPLEMENTATION ACT OF 2016
_______
May 27, 2016.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Upton, from the Committee on Energy and Commerce, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 4775]
The Committee on Energy and Commerce, to whom was referred
the bill (H.R. 4775) to facilitate efficient State
implementation of ground-level ozone standards, and for other
purposes, having considered the same, reports favorably thereon
with an amendment and recommends that the bill as amended do
pass.
CONTENTS
Purpose and Summary.............................................. 5
Background and Need for Legislation.............................. 5
What the Legislation Would Do.................................... 6
Hearings......................................................... 18
Committee Consideration.......................................... 19
Committee Votes.................................................. 19
Committee Oversight Findings..................................... 25
Statement of General Performance Goals and Objectives............ 25
New Budget Authority, Entitlement Authority, and Tax Expenditures 25
Earmark, Limited Tax Benefits, and Limited Tariff Benefits....... 25
Committee Cost Estimate.......................................... 25
Congressional Budget Office Estimate............................. 25
Federal Mandates Statement....................................... 25
Duplication of Federal Programs.................................. 25
Disclosure of Directed Rule Makings.............................. 25
Advisory Committee Statement..................................... 26
Applicability to Legislative Branch.............................. 26
Section-by-Section Analysis of the Legislation................... 26
Changes in Existing Law Made by the Bill, as Reported............ 28
Dissenting Views................................................. 58
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Ozone Standards Implementation Act of
2016''.
SEC. 2. FACILITATING STATE IMPLEMENTATION OF EXISTING OZONE STANDARDS.
(a) Designations.--
(1) Designation submission.--Not later than October 26, 2024,
notwithstanding the deadline specified in paragraph (1)(A) of
section 107(d) of the Clean Air Act (42 U.S.C. 7407(d)), the
Governor of each State shall designate in accordance with such
section 107(d) all areas (or portions thereof) of the
Governor's State as attainment, nonattainment, or
unclassifiable with respect to the 2015 ozone standards.
(2) Designation promulgation.--Not later than October 26,
2025, notwithstanding the deadline specified in paragraph
(1)(B) of section 107(d) of the Clean Air Act (42 U.S.C.
7407(d)), the Administrator shall promulgate final designations
under such section 107(d) for all areas in all States with
respect to the 2015 ozone standards, including any
modifications to the designations submitted under paragraph
(1).
(3) State implementation plans.--Not later than October 26,
2026, notwithstanding the deadline specified in section
110(a)(1) of the Clean Air Act (42 U.S.C. 7410(a)(1)), each
State shall submit the plan required by such section 110(a)(1)
for the 2015 ozone standards.
(b) Certain Preconstruction Permits.--
(1) In general.--The 2015 ozone standards shall not apply to
the review and disposition of a preconstruction permit
application if--
(A) the Administrator or the State, local, or tribal
permitting authority, as applicable, determines the
application to be complete on or before the date of
promulgation of the final designation of the area
involved under subsection (a)(2); or
(B) the Administrator or the State, local, or tribal
permitting authority, as applicable, publishes a public
notice of a preliminary determination or draft permit
for the application before the date that is 60 days
after the date of promulgation of the final designation
of the area involved under subsection (a)(2).
(2) Rules of construction.--Nothing in this section shall be
construed to--
(A) eliminate the obligation of a preconstruction
permit applicant to install best available control
technology and lowest achievable emission rate
technology, as applicable; or
(B) limit the authority of a State, local, or tribal
permitting authority to impose more stringent emissions
requirements pursuant to State, local, or tribal law
than national ambient air quality standards.
SEC. 3. FACILITATING STATE IMPLEMENTATION OF NATIONAL AMBIENT AIR
QUALITY STANDARDS.
(a) Timeline for Review of National Ambient Air Quality Standards.--
(1) 10-year cycle for all criteria air pollutants.--
Paragraphs (1) and (2)(B) of section 109(d) of the Clean Air
Act (42 U.S.C. 7409(d)) are amended by striking ``five-year
intervals'' each place it appears and inserting ``10-year
intervals''.
(2) Cycle for next review of ozone criteria and standards.--
Notwithstanding section 109(d) of the Clean Air Act (42 U.S.C.
7409(d)), the Administrator shall not--
(A) complete, before October 26, 2025, any review of
the criteria for ozone published under section 108 of
such Act (42 U.S.C. 7408) or the national ambient air
quality standard for ozone promulgated under section
109 of such Act (42 U.S.C. 7409); or
(B) propose, before such date, any revisions to such
criteria or standard.
(b) Consideration of Technological Feasibility.--Section 109(b)(1) of
the Clean Air Act (42 U.S.C. 7409(b)(1)) is amended by inserting after
the first sentence the following: ``If the Administrator, in
consultation with the independent scientific review committee appointed
under subsection (d), finds that a range of levels of air quality for
an air pollutant are requisite to protect public health with an
adequate margin of safety, as described in the preceding sentence, the
Administrator may consider, as a secondary consideration, likely
technological feasibility in establishing and revising the national
primary ambient air quality standard for such pollutant.''.
(c) Consideration of Adverse Public Health, Welfare, Social,
Economic, or Energy Effects.--Section 109(d)(2) of the Clean Air Act
(42 U.S.C. 7409(d)(2)) is amended by adding at the end the following:
``(D) Prior to establishing or revising a national ambient air
quality standard, the Administrator shall request, and such committee
shall provide, advice under subparagraph (C)(iv) regarding any adverse
public health, welfare, social, economic, or energy effects which may
result from various strategies for attainment and maintenance of such
national ambient air quality standard.''.
(d) Timely Issuance of Implementing Regulations and Guidance.--
Section 109 of the Clean Air Act (42 U.S.C. 7409) is amended by adding
at the end the following:
``(e) Timely Issuance of Implementing Regulations and Guidance.--
``(1) In general.--In publishing any final rule establishing
or revising a national ambient air quality standard, the
Administrator shall, as the Administrator determines necessary
to assist States, permitting authorities, and permit
applicants, concurrently publish regulations and guidance for
implementing the standard, including information relating to
submission and consideration of a preconstruction permit
application under the new or revised standard.
``(2) Applicability of standard to preconstruction
permitting.--If the Administrator fails to publish final
regulations and guidance that include information relating to
submission and consideration of a preconstruction permit
application under a new or revised national ambient air quality
standard concurrently with such standard, then such standard
shall not apply to the review and disposition of a
preconstruction permit application until the Administrator has
published such final regulations and guidance.
``(3) Rules of construction.--
``(A) Nothing in this subsection shall be construed
to preclude the Administrator from issuing regulations
and guidance to assist States, permitting authorities,
and permit applicants in implementing a national
ambient air quality standard subsequent to publishing
regulations and guidance for such standard under
paragraph (1).
``(B) Nothing in this subsection shall be construed
to eliminate the obligation of a preconstruction permit
applicant to install best available control technology
and lowest achievable emission rate technology, as
applicable.
``(C) Nothing in this subsection shall be construed
to limit the authority of a State, local, or tribal
permitting authority to impose more stringent emissions
requirements pursuant to State, local, or tribal law
than national ambient air quality standards.
``(4) Definitions.--In this subsection:
``(A) The term `best available control technology'
has the meaning given to that term in section 169(3).
``(B) The term `lowest achievable emission rate' has
the meaning given to that term in section 171(3).
``(C) The term `preconstruction permit'--
``(i) means a permit that is required under
this title for the construction or modification
of a stationary source; and
``(ii) includes any such permit issued by the
Environmental Protection Agency or a State,
local, or tribal permitting authority.''.
(e) Contingency Measures for Extreme Ozone Nonattainment Areas.--
Section 172(c)(9) of the Clean Air Act (42 U.S.C. 7502(c)(9)) is
amended by adding at the end the following: ``Notwithstanding the
preceding sentences and any other provision of this Act, such measures
shall not be required for any nonattainment area for ozone classified
as an Extreme Area.''.
(f) Plan Submissions and Requirements for Ozone Nonattainment
Areas.--Section 182 of the Clean Air Act (42 U.S.C. 7511a) is amended--
(1) in subsection (b)(1)(A)(ii)(III), by inserting ``and
economic feasibility'' after ``technological achievability'';
(2) in subsection (c)(2)(B)(ii), by inserting ``and economic
feasibility'' after ``technological achievability'';
(3) in subsection (e), in the matter preceding paragraph
(1)--
(A) by striking ``The provisions of clause (ii) of
subsection (c)(2)(B) (relating to reductions of less
than 3 percent), the provisions of paragaphs'' and
inserting ``The provisions of paragraphs''; and
(B) by striking ``, and the provisions of clause (ii)
of subsection (b)(1)(A) (relating to reductions of less
than 15 percent)''; and
(4) in paragraph (5) of subsection (e), by striking ``, if
the State demonstrates to the satisfaction of the Administrator
that--'' and all that follows through the end of the paragraph
and inserting a period.
(g) Plan Revisions for Milestones for Particulate Matter
Nonattainment Areas.--Section 189(c)(1) of the Clean Air Act (42 U.S.C.
7513a(c)(1)) is amended by inserting ``, which take into account
technological achievability and economic feasibility,'' before ``and
which demonstrate reasonable further progress''.
(h) Exceptional Events.--Section 319(b)(1)(B) of the Clean Air Act
(42 U.S.C. 7619(b)(1)(B)) is amended--
(1) in clause (i)--
(A) by striking ``(i) stagnation of air masses or''
and inserting ``(i)(I) ordinarily occurring stagnation
of air masses or (II)''; and
(B) by inserting ``or'' after the semicolon;
(2) by striking clause (ii); and
(3) by redesignating clause (iii) as clause (ii).
(i) Report on Emissions Emanating From Outside the United States.--
Not later than 24 months after the date of enactment of this Act, the
Administrator, in consultation with States, shall submit to the
Congress a report on--
(1) the extent to which foreign sources of air pollution,
including emissions from sources located outside North America,
impact--
(A) designations of areas (or portions thereof) as
nonattainment, attainment, or unclassifiable under
section 107(d) of the Clean Air Act (42 U.S.C.
7407(d)); and
(B) attainment and maintenance of national ambient
air quality standards;
(2) the Environmental Protection Agency's procedures and
timelines for disposing of petitions submitted pursuant to
section 179B(b) of the Clean Air Act (42 U.S.C. 7509a(b));
(3) the total number of petitions received by the Agency
pursuant to such section 179B(b), and for each such petition
the date initially submitted and the date of final disposition
by the Agency; and
(4) whether the Administrator recommends any statutory
changes to facilitate the more efficient review and disposition
of petitions submitted pursuant to such section 179B(b).
(j) Study on Ozone Formation.--
(1) Study.--The Administrator, in consultation with States
and the National Oceanic and Atmospheric Administration, shall
conduct a study on the atmospheric formation of ozone and
effective control strategies, including--
(A) the relative contribution of man-made and
naturally occurring nitrogen oxides, volatile organic
compounds, and other pollutants in ozone formation in
urban and rural areas, and the most cost-effective
control strategies to reduce ozone; and
(B) the science of wintertime ozone formation,
including photochemical modeling of wintertime ozone
formation, and approaches to cost-effectively reduce
wintertime ozone levels.
(2) Peer review.--The Administrator shall have the study peer
reviewed by an independent panel of experts in accordance with
the requirements applicable to a highly influential scientific
assessment.
(3) Report.--The Administrator shall submit to Congress a
report describing the results of the study, including the
findings of the peer review panel.
(4) Regulations and guidance.--The Administrator shall
incorporate the results of the study, including the findings of
the peer review panel, into any Federal rules and guidance
implementing the 2015 ozone standards.
SEC. 4. DEFINITIONS.
In this Act:
(1) Administrator.--The term ``Administrator'' means the
Administrator of the Environmental Protection Agency.
(2) Best available control technology.--The term ``best
available control technology'' has the meaning given to that
term in section 169(3) of the Clean Air Act (42 U.S.C.
7479(3)).
(3) Highly influential scientific assessment.--The term
``highly influential scientific assessment'' means a highly
influential scientific assessment as defined in the publication
of the Office of Management and Budget entitled ``Final
Information Quality Bulletin for Peer Review'' (70 Fed. Reg.
2664 (January 14, 2005)).
(4) Lowest achievable emission rate.--The term ``lowest
achievable emission rate'' has the meaning given to that term
in section 171(3) of the Clean Air Act (42 U.S.C. 7501(3)).
(5) National ambient air quality standard.--The term
``national ambient air quality standard'' means a national
ambient air quality standard promulgated under section 109 of
the Clean Air Act (42 U.S.C. 7409).
(6) Preconstruction permit.--The term ``preconstruction
permit''--
(A) means a permit that is required under title I of
the Clean Air Act (42 U.S.C. 7401 et seq.) for the
construction or modification of a stationary source;
and
(B) includes any such permit issued by the
Environmental Protection Agency or a State, local, or
tribal permitting authority.
(7) 2015 ozone standards.--The term ``2015 ozone standards''
means the national ambient air quality standards for ozone
published in the Federal Register on October 26, 2015 (80 Fed.
Reg. 65292).
Purpose and Summary
H.R. 4775, the Ozone Standards Implementation Act, was
introduced on March 17, 2016, by Rep. Pete Olson (R-TX),
together with Rep. Bill Flores (R-TX), Rep. Bob Latta (R-OH),
House Majority Whip Steve Scalise (R-LA), House Majority Leader
Kevin McCarthy (R-CA), and Rep. Henry Cuellar (D-TX). The bill
would provide additional time for States and localities to
implement new ozone standards, and address other practical
challenges under the National Ambient Air Quality Standards
(NAAQS) program.
Background and Need for Legislation
Under the Clean Air Act's NAAQS program, the Environmental
Protection Agency (EPA) Administrator sets standards for
criteria pollutants, including ground-level ozone.\1\ According
to EPA, since 1980 ozone levels have declined by 33 percent.\2\
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\1\The other criteria pollutants include carbon monoxide, lead,
nitrogen dioxide, particulate matter, and sulfur dioxide. The Clean Air
Act requires that EPA set national primary and secondary standards for
criteria pollutants that, ``allowing an adequate margin of safety,''
are requisite to protect public health and welfare. 42 U.S.C. 7409.
\2\See National Trends in Ozone Levels available at https://
www3.epa.gov/airtrends/ozone.html.
---------------------------------------------------------------------------
EPA initially established ozone standards in 1971, and
subsequently revised the standards in 1979, 1997, and 2008.\3\
The standards set in 2008 established an eight-hour standard of
75 parts per billion (ppb), replacing a 1997 standard
equivalent to 84 ppb. EPA did not publish its implementing
regulations for the 2008 standards until March 2015, nearly
seven years after these standards had been issued by the
agency.
---------------------------------------------------------------------------
\3\For background on EPA's ozone standards, see Memorandum of the
Energy and Commerce Committee, Majority Staff dated April 12, 2016, and
available at http://docs.house.gov/
meetings/IF/IF03/20160414/104778/HHRG-114-IF03-20160414-SD002.pdf.
---------------------------------------------------------------------------
In October 2015, the EPA Administrator also promulgated a
new 8-hour ozone standard of 70 ppb.\4\ Under the agency's
current schedule, States must submit designation
recommendations by October 1, 2016, and EPA plans to designate
areas as being in nonattainment by October of next year.\5\
Based on the agency's most recent monitoring data (2012-2014),
241 counties with ozone monitors in thirty-three States would
violate the new standard.\6\ These projections do not include
counties that currently do not have monitors, or contiguous
counties that do not exceed 70 ppb but that may also be
designated to be in nonattainment.\7\
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\4\80 Fed. Reg. 65,292 (Oct. 26, 2015).
\5\See EPA memo dated Oct. 1, 2015 available at https://
www.epa.gov/sites/production/files/2015-10/documents/
implementation_memo.pdf; see also guidance dated Feb. 25, 2016
available at https://www.epa.gov/sites/production/files/2016-02/
documents/ozone-designations-guidance-2015.pdf.
\6\See EPA County-level Design Values for the 2015 Ozone
Standards'' available at https://energycommerce.house.gov/news-center/
letters/letters-support-hr-4775. Of the 241 counties, 213 are outside
of California.
\7\The Clean Air Act established ozone classification and
attainment dates for the initial ozone standards of three years for
``Marginal,'' six years for ``Moderate,'' nine years for ``Serious,''
fifteen years for ``Severe,'' and twenty years for ``Extreme.'' 42
U.S.C. 7511. These deadlines have applied to subsequent ozone
standards. See, e.g. NRDC v. EPA, Case No. 12-1321, U.S. Court of
Appeals for the District of Columbia Circuit (Dec. 23, 2014).
---------------------------------------------------------------------------
Prior to EPA's issuance of the 2015 ozone standards, nearly
700 national, State, and local organizations and stakeholders
representing businesses and jobs across the country had
requested that EPA retain the 2008 standards.\8\ In comments on
the proposed rule, many State environmental regulators also
raised concerns about any revision to the 2008 standards, and
specifically regarding the role of background ozone, both
naturally-occurring and internationally transported
contributions, and limitations to the exceptional events
exclusion and other Clean Air Act tools that EPA had
highlighted for regulatory relief to address background
ozone.\9\
---------------------------------------------------------------------------
\8\See July 29, 2015 Letter to Chief of Staff Denis McDonough from
Energy and Commerce Committee Members and enclosure available at
https://energycommerce.house.gov/sites/
republicans.energycommerce.house.gov/files/114/Letters/
20150729WHUpdated.pdf.
\9\See, e.g. State Environmental Agency Perspectives on Background
Ozone and Regulatory Relief (June 2015) available at http://
www.csg.org/aapca_site/documents/AAPCASurvey-
StateEnvironmentalAgencyPerspectivesonBackgroundOzoneandRegulatoryRelief
-June201.pdf.
---------------------------------------------------------------------------
In addition to challenges relating to implementing the new
ozone standards, State and local air agencies are increasingly
confronting other challenges under the statutory construct of
the NAAQS program. For example, in 2012, the Energy and
Commerce Committee held forums with many State and local air
regulators to examine lessons of Clean Air Act
implementation.\10\ At those forums, State regulators noted
that, while the Clean Air Act has been successful in many
respects, there are practical challenges with implementing
aspects of the Act, ranging from the agency's failure to issue
timely implementation regulations and guidance when standards
are revised, to specific issues relating to foreign emissions
or exceptional events, statutory provisions that have been
interpreted to require States to pursue measures that may not
be technologically or economically feasible, and the current
statutory requirement that EPA review all NAAQS no later than
every five years.
---------------------------------------------------------------------------
\10\See Clean Air Act Forum (Part I) available at https://
energycommerce.house.gov/hearings-and-votes/event/clean-air-act-forum-
part-i; Clean Air Act Forum (Part II) available at https://
energycommerce.house.gov/hearings-and-votes/event/clean-air-act-forum-
part-ii; Clean Air Act Forum (Part III) available at available at
https://energycommerce.house.gov/hearings-and-votes/event/clean-air-
act-forum-part-iii.
---------------------------------------------------------------------------
What the Legislation would do
H.R. 4775 seeks to address concerns raised by State and
local air agencies and facilitate more efficient implementation
of ozone standards, and the NAAQS program generally. Key
provisions would:
Phase in implementation of the 2015 ozone
standards by extending the date for final designations
from 2017 to 2025, and aligning permitting
requirements;
Revise the time for mandatory review of
NAAQS from five to ten years, while allowing the EPA
Administrator discretion to issue revised standards
earlier;
Authorize the EPA Administrator to consider
technological feasibility, as a secondary
consideration, when establishing or revising NAAQS;
Direct the EPA Administrator to obtain
advice from the agency's scientific advisory committee
regarding potential adverse effects prior to revising
NAAQS, as required by Section 109 of the Clean Air Act;
Direct the EPA Administrator to issue
implementation regulations and guidance concurrently
when revising NAAQS, including with respect to
permitting requirements;
Ensure that for certain ozone and
particulate matter nonattainment areas, States are not
required to include economically infeasible measures in
their implementation plans;
Revise the definition of exceptional events
under Section 319 of the Clean Air Act to include
droughts and extraordinary stagnation; and
Direct EPA to submit two reports to Congress
including (i) a report regarding the impacts of foreign
emissions on NAAQS compliance and related matters; and
(ii) a report regarding ozone formation and effective
control strategies.
The specific provisions of the bill are addressed below:
Section 2--Additional time to implement 2015 ozone standards
Section 2 of the bill would provide additional time for
States and localities to implement the 2015 ozone standards by
extending the date for final designations from 2017 to 2025,
and aligning permitting requirements with the designations.
Providing additional time to implement the 2015 standards
will allow EPA and States time to fully implement the 2008
ozone standards. It will also allow EPA time to develop the
necessary implementation regulations and guidance to implement
the new standards, as well as to clear its existing backlog of
implementation plans relating to other standards.\11\ It will
also ensure that hundreds of counties already on track to meet
the standards can come into compliance without being subjected
unnecessarily to new regulatory burdens, paperwork
requirements, and restrictions.\12\
---------------------------------------------------------------------------
\11\EPA took nearly seven years to finalize implementing
regulations for the 2008 ozone standards, and has yet to issue them for
its 2012 particulate matter standards. With respect to processing state
implementation plans, as of the end of FY 2015, there were 557
backlogged plans. See EPA Congressional Justification, at p. 903,
available at https://www.epa.gov/sites/production/files/2016-02/
documents/fy17-congressional-justification.pdf.
\12\EPA projects ``the vast majority of U.S. counties will meet the
[2015 ozone standards] by 2025 just with the rules and programs now in
place or underway.'' See EPA Fact Sheet available at https://
www.epa.gov/sites/production/files/2015-10/documents/
20151001designations_
permitting.pdf.
---------------------------------------------------------------------------
Additional time would also allow for judicial review of
legal challenges by States and other regulated entities pending
in the D.C. Circuit.\13\ In addition to concerns about whether
the new standards are achievable for many counties,\14\ there
are concerns about the costs of implementation that are
estimated by EPA to be $2 billion annually in 2025,\15\ and
which may be significantly higher.\16\ Questions have also been
raised regarding EPA's projections of benefits.\17\
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\13\Murray Energy Corporation v. EPA, No. 15-1385 (consolidated
with 15-1392, 15-1490, 15-1491 & 15-1494), United States Court of
Appeals for the District of Columbia Circuit. States challenging the
standards include Arizona, Arkansas, North Dakota, New Mexico,
Oklahoma, Utah, Wisconsin, Kentucky, and Texas.
\14\For example, at the April 14, 2016 hearing on H.R. 4775, the
State of Arizona's Director of Environmental Quality, Misael Cabrera,
testified: ``We believe that the new standard is simply not achievable
in many areas of our State. Although the Clean Air Act has five
mechanisms to bring nonattainment areas in to compliance, these
mechanisms are inadequate for Arizona and likely other Western
states.''
\15\While EPA has not provided any cost estimates for earlier
years, the agency provides an annualized cost estimate of $2 billion in
2025, including $1.4 billion for all States except California, and an
additional $800 million for California post-2025. EPA's cost estimate
in the final rule is significantly lower than its estimate in the
proposed rule, where it estimated annual costs for a 70 ppb standard to
be $3.9 billion (except California) in 2025. See November 2014
Regulatory Impact Analysis for Proposed Rule at ES-14, ES-15 available
at https://www3.epa.gov/ttn/ecas/regdata/RIAs/20141125ria.pdf.
\16\For example, at the hearing on H.R. 4775, the Chairman of the
Texas Commission on Environmental Quality testified regarding EPA's
cost estimates: ``My agency's analysis suggests those figures are
dramatically incorrect. For example, the EPA only includes industry's
costs in their analysis, not the states' or taxpayer's costs. Nor do
they look at economic impacts like increased electricity costs.''
Further, EPA projects at this time that ``unidentified controls'' would
be needed in some areas to meet a 70 ppb standard, including for 100
percent of the NOx emissions reductions needed in California. See
October 2015 Regulatory Impact Analysis for Final Rule at Table 4-9 at
4-40, 4A-5 at 4A-6 and 4A-6 at 4A-6; Tables 3-9-and 3-10 (California)
at 3-24 available at https://www.regulations.gov/
#!documentDetail;D=EPA-HQ-OAR-2013-0169-0057.
\17\See Testimony of Louis Anthony Cox, Jr. Chief Sciences Officer,
Nexthealth Technologies available at http://docs.house.gov/meetings/IF/
IF03/20150616/103610/HHRG-114-IF03-Wstate-CoxL-20150616.pdf; April 14,
2016 Testimony of Bryan Shaw, Chairman, Texas Commission on
Environmental Quality, at pp. 1-2, available at http://docs.house.gov/
meetings/IF/IF03/20160414/104778/HHRG-114-IF03-Wstate-ShawB-
20160414.pdf.
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While some commenters on the legislation have raised
concerns that this or other provisions of the bill would ``roll
back'' provisions of the Clean Air Act or harm our nation's
efforts to protect air quality, nothing in H.R. 4775 changes
any existing air quality standards or regulations.\18\ The bill
simply provides additional time and flexibility to implement
standards under the NAAQS program in a manner that avoids
unnecessary costs or restrictions on economic and job
growth.\19\
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\18\Commenters on the legislation have also raised concerns that
under the bill, the public will not know if the air that they are
breathing meets air quality standards. The Air Quality Index is EPA's
tool for providing the public with the most up-to-date information
about air quality where they live. See EPA Fact Sheet available at
https://www.epa.gov/sites/production/files/2015-10/documents/
20151001_air_quality_index_updates.pdf. Nothing in the bill changes
federal regulations (40 CFR 58.50) requiring that States and local
agencies report Air Quality Index information to the general public on
a daily basis, or changes requirements to monitor, measure, and report
air quality data.
\19\At the hearing on H.R. 4775, the San Joaquin Valley Air
Pollution Control District Executive Director testified:
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H.R. 4775, in my opinion, provides for much needed
streamlining of the implementation of the Clean Air Act. It
does not roll back anything that is already in the Clean
Air Act in the form of protections for public health,
safeguarding public health and it does nothing to roll back
any of the progress that has been made and it will not
impede or slow down our progress as we move forward to
reduce air pollution and improve public health.
The Chairman of the Texas Commission on Environmental Quality similarly
testified that the bill ``simply provides for additional time with the
implementation of the latest standard but it does not roll back those
requirements that are in place.''
Section 3(a)--Timeline for review of NAAQS
Section 3(a) would change the mandatory review of NAAQS
from five to ten years, while allowing the EPA Administrator
discretion to issue revised standards earlier. Under the
section, the Administrator would not be precluded from
considering new evidence earlier than the ten year review
period.
Providing additional time for the EPA Administrator and the
agency to complete the agency's mandatory reviews of NAAQS
would address concerns regarding the current review cycle
raised by numerous air regulators,\20\ and supported at the
hearing on the bill.\21\ Allowing additional time is reasonable
because the agency does not typically complete its review
within the current statutory time frame.\22\ As set forth on
the agency website, the review process is ``a lengthy
undertaking,'' which involves a ``Planning'' phase,
``Integrated Science Assessment,'' ``Risk/Exposure
Assessment,'' ``Policy Assessment,'' and a rulemaking process
for each review, which itself can be a multi-year process.
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\20\See April 12, 2016 Memorandum, supra n. 3, at footnote 21.
\21\At the hearing on H.R. 4775, the Chairman of the Texas
Commission on Environmental Quality testified:
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By lengthening the required review period from five to ten
years, it will ensure the EPA does not rush to lower given
standards only to comply with a statutory deadline.
Furthermore, it will give states more time to comply with
previous standards before getting saddled with more
stringent standards and facing economic and developmental
sanctions for nonattainment.
The Executive Director of the Utah Dept. of Environmental Quality also
testified: ``In general, extending the 5-year NAAQS review cycle so
that it better aligns with the prescribed NAAQS implementation
timelines is appropriate.'' The Executive Director of the San Joaquin
Valley Air Pollution Control District also testified: ``H.R. 4775 helps
reduce the current chaotic nature of the transition between standards
by requiring that EPA issue guidance on implementing new standards in a
timely manner and extending the timeframe to review new standards from
5 years to 10 years.''
---------------------------------------------------------------------------
\22\EPA's current process for reviewing NAAQS is described by the
agency on its website at https://www.epa.gov/criteria-air-pollutants/
process-reviewing-national-ambient-air-quality-standards. For the list
of current NAAQS and links to the specific review periods for each
criteria pollutant, see https://www.epa.gov/criteria-air-pollutants/
naaqs-table.
---------------------------------------------------------------------------
Providing the EPA Administrator with additional time to
review the standards is also reasonable because, as noted
above, EPA itself can take years to develop the regulations and
guidance needed to implement the standards being reviewed, yet
under the current five year schedule, the review process must
begin long before the standards being reviewed have even begun
to be implemented. For example, EPA set its 2008 ozone
standards in March of that year, and then began the process to
review those standards in September of that same year, only six
months after the standards had been published.\23\
---------------------------------------------------------------------------
\23\See Notice of Workshop and Call for Information on Integrated
Science Assessment for Ozone, 73 Fed. Reg. 56581 (Sept. 29, 2008).
---------------------------------------------------------------------------
The NAAQS review process, moreover, requires States to
expend substantial resources, including review of scientific
assessments and proposed rules, at the same time they are also
implementing multiple existing standards. For example, States
and local air agencies are currently required to implement
standards for ozone, particulate matter, and sulfur dioxide.
For each of these new standards, States must make designations,
and prepare and comply with implementation plans. Under the
current five year review cycle, States and local air regulators
may be required to divert resources away from implementing an
existing standard to focus on the review of that same standard
that has yet to be implemented.
Section 3(b)--Consideration of technological feasibility
Section 3(b) would authorize the EPA Administrator to
consider technological feasibility when selecting among a range
of potential standards that are supported by public health
data. In particular, this section states that if the EPA
Administrator, in consultation with EPA's independent
scientific advisory committee, finds a range of levels of air
quality are requisite to protect public health with an adequate
margin of safety, then ``the Administrator may consider, as a
secondary consideration, likely technological feasibility in
establishing and revising the national primary ambient air
quality standard for such pollutant.'' (Emphasis added).
Section 3(b) does not change the Clean Air Act's
requirement that standards be based on protection of public
health. The bill simply clarifies that the EPA Administrator
has the discretion to consider technological feasibility when
choosing among a range of levels identified and supported by
the science as protective of public health. This is a
clarification for future Administrators that Congress considers
technical feasibility to be a reasonable part of the decision-
making process when policy choices must be made among a range
of scientifically valid options.\24\
---------------------------------------------------------------------------
\24\At the hearing on H.R. 4775, the Executive Director of the San
Joaquin Valley Air Pollution Control District testified:
The formula-based deadlines and milestones that were
prescribed in the Act 25 years ago now lead to mandates
that are impossible to meet. H.R. 4775 will amend the Clean
Air Act to require control measures that lead to the most
expeditious attainment of health based standards while
taking into account technological achievability and
economic feasibility.
The Chairman of the Texas Commission on Environmental Quality also
testified:
The [Clean Air] Act's requirement that the EPA ignore technological
and economic considerations might have made sense forty years ago when
it was initially passed. However, pollution levels have been lowered to
such a degree that the law of diminishing returns has made it more and
more difficult to continue to reduce pollutant levels at all, much less
in a way that is not burdensome economically.
---------------------------------------------------------------------------
Section 3(c)--Consideration of potential adverse effects
Section 3(c) would direct the EPA Administrator to consider
potential adverse effects when setting NAAQS standards. In
particular, under Section 109 of the Clean Air Act, EPA's
independent scientific advisory committee is required to
provide advice to the agency about the potential adverse
effects of implementing new air quality standards. 42 U.S.C.
7409(d)(2)(C)(iv). While the Act expressly requires that the
Clean Air Scientific Advisory Committee (CASAC) ``advise the
Administrator of any adverse public health, welfare, social,
economic, or energy effects which may result from various
strategies for attainment and maintenance of such national
ambient air quality standards,'' EPA does not currently
implement this statutory provision. To the contrary, in May
2015, the Government Accountability Office issued a report
indicating CASAC has never provided such advice because EPA has
never requested it, and that EPA has no plans to ask CASAC to
provide advice on potential adverse effects.\25\
---------------------------------------------------------------------------
\25\See ``GAO Report entitled ``EPA SCIENCE ADVISORY PANELS,
Preliminary Observations on the Processes for Providing Scientific
Advice," GAO-15-636T, May 20, 2015 available at http://gao.gov/assets/
680/670288.pdf.
---------------------------------------------------------------------------
Such advice would help inform the NAAQS process and is
relevant to developing and implementing new standards. In a
recent survey by the Association of Air Pollution Control
Agencies, 80 percent of State air agencies said that CASAC
advice on potential adverse public health, welfare, social,
economic, or energy effects would be helpful to their
agency.\26\ Section 3(c) of the bill will ensure this occurs by
directing the EPA Administrator, prior to establishing or
revising a NAAQS, to request, and CASAC to provide, such
advice.\27\
---------------------------------------------------------------------------
\26\The survey is available at http://www.csg.org/aapca_site/
events/documents/SurveyResults_000.pdf.
\27\Concerns have been raised by States regarding the agency's
failure to implement this statutory provision. See, e.g. May 14, 2014
Letter from Senator Vitter available at https://web.archive.org/web/
20141208042421/http:/www.epw.senate.gov/public/
index.cfm?FuseAction=Files.View&FileStore;_id=999cb305-9457-4fdd-a918-
aebf11658e14; see also Response from Louisiana Dept. of Environmental
Quality available at https://web.archive.org/web/20150110124050/http:/
www.epw.senate.gov/public/
index.cfm?FuseAction=Files.View&FileStore;_id=78659f58-83aa-4c06-9832-
86d90efb0b7d; Response from Mississippi Dept. of Environmental Quality
available at https://web.archive.org/web/20150110124050/http:/
www.epw.senate.gov/public/
index.cfm?FuseAction=Files.View&FileStore;_id=78659f58-83aa-4c06-9832-
86d90efb0b7d; Response from North Carolina Department of Environment
and Natural Resources available at https://web.archive.org/web/
20150110133105/http:/www.epw.senate.gov/public/
index.cfm?FuseAction=Files.View&FileStore;_id=0ba945cc-f16f-4e95-ab47-
8427c20a9f94; Response from Texas Commission on Environmental Quality
available at https://web.archive.org/web/20150110123616/http:/
www.epw.senate.gov/public/
index.cfm?FuseAction=Files.View&FileStore;_id=e3c917db-ccf9-4c22-8d8b-
d783458fd5fe.
---------------------------------------------------------------------------
Section 3(d)--Timely implementing regulations and guidance
Section 3(d) requires EPA to issue implementation guidance
when it issues new standards. Under the bill, if EPA fails to
provide such information, the standards will not apply to
preconstruction permits until such guidance has been
promulgated. This simply creates an incentive for EPA to be
more efficient, and provides relief for States and regulated
entities burdened by regulatory deadlines and a lack of needed
guidance from the agency.\28\ While this would ensure EPA has
an incentive to take timely action, this subsection also
expressly provides that nothing prevents States, local, or
tribal permitting authorities from imposing more stringent
permitting requirements for preconstruction permit
applications.
---------------------------------------------------------------------------
\28\During the Subcommittee's Clean Air Act Forums in 2012, State
regulators specifically raised concerns about the lack of timely
implementing regulations and guidance on planning. See, e.g. Response
of Martha Rudolph, Colorado Dept. of Public Health and the Environment,
available at https://energycommerce.house.gov/sites/
republicans.energycommerce.house.gov/files/analysis/CAAforum/20121129/
Rudolph.pdf)(``The absence of timely implementation guidance produces a
lack of clarity on [state implementation plan] expectations, and often
creates considerable uncertainty in the planning process. . . .''); see
also, e.g. Response of Teresa Marks of the Arkansas Department of
Environmental Quality available at https://energycommerce.house.gov/
sites/republicans.energycommerce.house.gov/files/analysis/CAAforum/
20120731/Marks.pdf)(``Too often `standards' are promulgated without the
technical implementation rules in place. This places States in an
extremely difficult position. . . .'')
---------------------------------------------------------------------------
Under this subsection, furthermore, new manufacturing and
industrial facilities would continue to be required to install
best available control technology to reduce emissions even
where EPA fails to issue timely implementation regulations. The
subsection expressly provides that it may not be construed ``to
eliminate the obligation of a preconstruction permit applicant
to install best available control technology and lowest
achievable emission rate technology, as applicable.''
Section 3(e)--Contingency measures
Currently, the Clean Air Act requires that States and
localities include ``contingency measures'' in their compliance
plans for certain nonattainment areas. While ``contingency
measures'' may be reasonable for ``Moderate'' or ``Serious''
nonattainment areas, for ``Extreme'' ozone nonattainment areas
States and localities should be pursuing all available control
measures.\29\ Currently, however, failure to include
contingency measures in ``Extreme'' areas may prevent approval
of compliance plans. Section 3(e) would simply eliminate the
mandate for holding back measures as contingencies in areas
classified as an ``Extreme'' nonattainment area.
---------------------------------------------------------------------------
\29\At the hearing on H.R. 4775, the Executive Director of the San
Joaquin Air Pollution Control District explained:
---------------------------------------------------------------------------
A classic case of the well-intentioned provisions that were
included in the Clean Air Act over 25 years ago that are
now leading to unintended consequences is the requirement
for contingency measures in areas classified as `extreme'
nonattainment. By definition, a region is classified as
extreme nonattainment if, despite implementing all
available control measures, reductions achieved are not
enough to meet the standard . . . The only way a region can
meet the contingency requirements is to hold back on
implementing clean air measures and save them for later as
a contingency. Of course, this would result in delays in
cleaning the air and reducing air pollution. As currently
written, the requirements in the Clean Air Act that require
extreme areas to include all available measures to ensure
expeditious attainment and the requirement for holding back
measures as contingency are contradictory.
Section 3(f), (g)--Plan Submissions and Requirements
Sections 3(f) and (g) clarify that economic feasibility, in
addition to technical achievability, can be taken into
consideration in meeting certain requirements for plans for
ozone and particulate matter nonattainment areas.\30\ These
provisions will help to ensure meaningful consideration of
economic feasibility for States and localities working to
implement new standards.
---------------------------------------------------------------------------
\30\At the hearing on H.R. 4775, the Executive Director of the San
Joaquin Air Pollution Control District explained:
---------------------------------------------------------------------------
Although the Clean Air Act is currently silent on
considering economic feasibility in setting new air quality
standards, EPA and others have argued that economic
feasibility is incorporated in the implementation phase.
Our experience, however, shows that meaningful
consideration of economic feasibility is nearly impossible
when faced with formula-based milestones and deadlines in
the Clean Air Act that are set without considering
technological achievability and economic feasibility.
Section 3(h)--Exceptional Events
Section 3(h) would modify the definition of ``exceptional
events'' in Section 319 of the Clean Air Act to include
droughts and extraordinary stagnation.\31\ Specifically, this
section of the bill would provide that an exceptional event may
include stagnation of air masses that are not ordinarily
occurring, and may also include a meteorological event
involving high temperatures or lack of precipitation.\32\
---------------------------------------------------------------------------
\31\The ``exceptional events'' exclusion seeks to provide relief
for areas that may have an exceedance or violate the standards due to
events beyond their control. For example, the Director Cabrera of the
Arizona Dept. of Environmental Quality testified:
---------------------------------------------------------------------------
[T]he Clean Air Act will regulate an area that exceeds the
standard on four days only the same as an area that exceeds
the standard every day. So an area that exceeds the
standards on these four days of the year versus an area
that exceeds that standard every single day of the year get
treated the same and that is the reason why you need
exceptional events.
---------------------------------------------------------------------------
\32\At the hearing on H.R. 4775, the Executive Director of the San
Joaquin Air Pollution Control District testified:
---------------------------------------------------------------------------
Currently, the Clean Air Act does not allow stagnation or
lack of precipitation to qualify as exceptional events. The
west coast recently experienced drought conditions that had
not been experienced since the late 1800s with some
locations breaking records over 100 years old. . . . Due to
the extreme drought, stagnation, strong inversions, and
historically dry conditions experienced over the winter of
2013/14, the Valley could not show attainment even if the
Valley eliminated all sources of air pollution and had zero
emissions of [fine particulate matter] released into the
atmosphere for the following year. . . . Extraordinary
circumstances that arise from 100-year droughts should
qualify as exceptional events.
The Director of the Arizona Dept. of Environmental Quality also
testified to the need for relief relating to exceptional events:
[T]he exceptional events rule is of dubious value to Yuma
County, if not the whole country. Although Arizona has been
a national leader in the development of exceptional event
documentation for dust events, the process for documenting
and receiving EPA approval of ozone exceptional events has
not been explained, will be almost certainly resource
intensive, and is difficult to predict.
Nothing in this subsection does away with the detailed
statutory requirements under Section 319 or the procedures and
guidelines that EPA has laid out for demonstrating exceptional
events.\33\ Nor does anything in the bill do away with
requirements to measure air quality, or to make that air
quality data available to the public.
---------------------------------------------------------------------------
\33\Clean Air Act Section 319(b) requires a showing that an event
has affected air quality in such a way that there was i) a clear causal
relationship between the specific event and the monitored exceedance or
violation; ii) the event was not reasonably controllable or
preventable; and iii) the event was caused by human activity that is
unlikely to recur at a particular location or was a natural event. 42
U.S.C. 7619.
---------------------------------------------------------------------------
Section 3(i)--Foreign Emissions
Section 3(i) would require that EPA submit a report to
Congress within two years on foreign emissions and their impact
on compliance with the NAAQS in the United States. It would
also require the agency to provide information regarding the
agency's procedures and timelines for disposing of petitions
for relief under 179B of the Clean Air Act, and whether the
Administrator recommends any statutory changes to facilitate
more efficient review and disposition of such petitions.
Currently, the impact of foreign emissions, particularly
emissions transported from outside North America, is not fully
understood but may be significant.\34\ Further, while States
and local air quality management agencies have requested relief
under Section 179B, EPA has advised the Committee that only
five petitions have ever been granted by the agency. Changes to
promote more efficient disposition of such petitions would help
to ensure that areas, particularly in the Western United
States, are not subjected to penalties and sanctions under the
Clean Air Act due to foreign emissions.
---------------------------------------------------------------------------
\34\At the hearing on H.R. 4775, the Director of the Utah Dept. of
Environmental Quality testified: ``International transport can, at
times, account for up to 85 percent of the 8-hour ambient ozone
concentration in some Western states. Many areas in the West have
little chance of identifying sufficient controls to achieve attainment,
leading to severe consequences.'' In February 2016, EPA held a two-day
workshop in Phoenix on background ozone that considered, inter alia,
international transport. For information on the workshop, see https://
www.epa.gov/ozone-pollution/background-ozone-workshop-and-information.
---------------------------------------------------------------------------
Section 3(j)--Ozone Formation and Control Strategies
Section 3(j) would require that the Administrator conduct a
study on the atmospheric formation of ozone and effective
control strategies, including with regard to the relative
contribution of manmade and naturally occurring NOx, VOCs, and
other pollutants in ozone formation in urban and rural areas,
and with regard to wintertime ozone, that the study be peer
reviewed in accordance with the requirements applicable to
highly influential scientific assessments. Under this
subsection, the Administrator is required to submit a report to
Congress describing the results of the study and incorporate
the results of the study into any Federal rules and guidance
implementing the 2015 ozone standards.\35\
---------------------------------------------------------------------------
\35\At the hearing on H.R. 4775, the Executive Director of Utah's
Department of Environmental Quality testified:
---------------------------------------------------------------------------
As a result of these significant [nitrogen oxide] emission
reductions, ozone levels have been improving throughout the
eastern U.S. Equivalent NOx emission reductions have also
been occurring at western power plants . . . and mobile
source emission reductions have also been substantial, but
there have not been corresponding decreases in ozone levels
in the west.
Further, ``[i]n rural areas where biogenic (natural source) emissions
are the majority of the inventory . . . reductions in anthropogenic VOC
are unlikely to have any effect on ambient ozone concentrations.''
Director Matheson also testified that ``[m]ost scientific studies of
ozone have focused on summertime ozone in urban areas; and the summer
ozone-formation chemistry is well characterized. Wintertime ozone, on
the other hand, is a relatively new phenomenon, limited to a few
isolated basins in the intermountain west, and its causes are not fully
understood.''
Supporters of the Legislation
60 Plus Association
African-American Republican Leadership Council (AARLC)
Alabama Forestry Association
Alabama Petroleum Council
Alaska Chamber
Alliance of Automobile Manufacturers
Aluminum Association
American Business Defense Council
American Chemistry Council
American Coalition for Clean Coal Electricity
American Coatings Association
American Coke and Coal Chemicals Institute
American Commitment
American Composites Manufacturers Association
American Concrete Pressure Pipe Association
American Council for Capital Formation
American Encore
American Energy Alliance
American Farm Bureau Federation
American Forest & Paper Association
American Foundry Society
American Fuel & Petrochemical Manufacturers
American Highway Users Alliance
American Iron and Steel Institute
American Petroleum Institute
American Road & Transportation Builders Association (ARTBA)
American Wood Council
Americans for Competitive Enterprise
Americans for Constitutional Liberty
Americans for Limited Government
Americans for Prosperity
Americans for Tax Reform
Anderson Area Chamber of Commerce
API New York
API Ohio
Arizona Chamber of Commerce and Industry
Arkansas Petroleum Council
Arkansas State Chamber of Commerce
Ascension Chamber of Commerce
Asphalt Roofing Manufacturers Association (ARMA)
Associated Industries of Arkansas
Associated Petroleum Industries of Michigan
Associated Petroleum Industries of Pennsylvania
Association of American Railroads
Association of Mature American Citizens
Association of Washington Business
Baton Rouge Area Chamber
Black Hills Forest Resource Association
Blacks Economic-Security Today Trust Fund (BEST Trust Fund)
Business Council of Alabama
Center for Energy and Environment Competitive Enterprise
Institute
Center for Individual Freedom
Center of the American Experiment (Minnesota)
Central Chamber of Commerce
Charleston Metro Chamber of Commerce
Charlotte Chamber of Commerce
Chemical Industry Council of California
Chemical Industry Council of Delaware
Chemical Industry Council of Illinois
Chemistry Council of New Jersey
Cherry Creek Chamber of Commerce
Citizens' Alliance for Responsible Energy (CARE)
Civitas Institute
Clay County Chamber of Commerce
Coalition for Self-Government in the West
Coalition Opposed to Additional Spending and Taxes (COAST)
Colorado Association of Commerce & Industry
Colorado Business Roundtable
Colorado Petroleum Association
Colorado Timber Industry Association
Committee for a Constructive Tomorrow (CFACT)
Connecticut Petroleum Council
Consumer Energy Alliance
Consumer Specialty Products Association
Corn Refiners Association
Corpus Christi Chamber of Commerce
Council for Citizens Against Government Waste
Council of Industrial Boiler Owners (CIBO)
Dallas Regional Chamber
Delaware State Chamber of Commerce
Denver Metro Chamber of Commerce
Energy & Environment Legal Institute (E&E; Legal)
Energy Makes America Great
Extruded Polystyrene Foam Association (XPSA)
Fashion Jewelry & Accessories Trade Association
Flexible Packaging Association
Florida Chamber of Commerce
Florida Petroleum Council
Forest Resources Association
Freedom Partners Chamber of Commerce
Freedom Works
Frontiers of Freedom
Galveston Regional Chamber of Commerce
Gas Processors Association
Georgia Agribusiness Council
Georgia Association of Manufacturers
Georgia Chamber of Commerce
Georgia Chemistry Council
Georgia Petroleum Council
Glass Packaging Institute (GPI)
Global Cold Chain Alliance
Granbury Chamber of Commerce
Greater Beaumont Chamber of Commerce
Greater El Paso Chamber of Commerce
Greater Elkhart Chamber of Commerce
Greater Irving-Las Colinas Chamber of Commerce
Greater New Braunfels Chamber of Commerce
Greater North Dakota Chamber of Commerce
Greater Port Arthur Chamber of Commerce
Greater Summerville/Dorchester County Chamber of Commerce
Greater Topeka Chamber of Commerce
Greenville Chamber
Hispanic Leadership Fund
Iberville Chamber of Commerce
Idaho Freedom Foundation
Illinois Chamber of Commerce
Illinois Fertilizer & Chemical Association
Illinois Petroleum Council
Independence Institute, Energy Policy Center
Independent Lubricant Manufacturers Association
Independent Petroleum Association of America
Independent Women's Forum
Independent Women's Voice
Indiana Chamber of Commerce
Indiana Petroleum Council
Industrial Energy Consumers of America (IECA)
Industrial Environmental Association
Industrial Minerals Association--North America
Institute for Liberty
Institute of Makers of Explosives
Institute of Shortening and Edible Oils
Intermountain Forest Association
International Association of Refrigerated Warehouses
International Institute of Synthetic Rubber Producers, Inc.
Iowa Association of Business & Industry
ISSA, The Worldwide Cleaning Industry Association
James Madison Institute (Florida)
John Locke Foundation (North Carolina)
Kansas Chamber of Commerce
Kansas Independent Oil & Gas Association
Kansas Petroleum Council
Kansas Policy Institute
Kentucky Association of Manufacturers
Kentucky Chamber of Commerce
Kentucky Chemical Industry Council
Kitchen Cabinet Manufacturers Association
League City Regional Chamber of Commerce
Less Government
Let Freedom Ring
Libertas Institute
Louisiana Association of Business and Industry
Louisiana Chemical Association
Lubbock Chamber of Commerce
Maine State Chamber of Commerce
Maryland Petroleum Council
Maryland Taxpayers Association
Massachusetts Petroleum Council
Metro Atlanta Chamber
Michigan Chemistry Council
Milledgeville-Baldwin County Chamber
Minden-South Webster Chamber of Commerce
Minnesota Chamber of Commerce and Industry
Minnesota Crop Production Retailers
Minnesota Petroleum Council
Mississippi Center for Public Policy
Mississippi Economic Council
Missouri Agribusiness Association
Missouri Chamber of Commerce
Missouri Petroleum Council
Monroe Chamber of Commerce
Montana Chamber of Commerce
Montana Policy Institute
Motor & Equipment Manufacturers Association
Myrtle Beach Area Chamber of Commerce
National Association for Surface Finishing
National Association of Chemical Distributors
National Association of Convenience Stores
National Association of Home Builders
National Association of Manufacturers
National Black Chamber of Commerce
National Center for Public Policy Research
National Corn Growers Association
National Cotton Council
National Council of Textile Organizations
National Federation of Independent Business
National Federation of Republican Assemblies
National Lime Association
National Marine Manufacturers Association
National Mining Association
National Oilseed Processors Association
National Taxpayers Union
National Tooling and Machining Association
National Waste & Recycling Association
NATSO, Representing America's Travel Plazas and Truckstops
Nebraska Chamber of Commerce & Industry
Nevada Manufacturers Association
New Jersey Chamber of Commerce
New Jersey Petroleum Council
New Mexico Association of Commerce and Industry
New Mexico Business Coalition
New Mexico Oil & Gas Association
New York State Chemical Council
North American Die Casting Association
North Carolina Chamber
North Carolina Petroleum Council
North San Antonio Chamber
Ohio AgriBusiness Association
Ohio Chamber of Commerce
Ohio Chemistry and Technology Council
Oklahoma State Chamber
Oregon Women In Timber
Overland Park Chamber of Commerce
Palacios Chamber of Commerce
Pelican Institute for Public Policy (Louisiana)
Pennsylvania Chamber of Business and Industry
Pennsylvania Chemical Industry Council
Petroleum Marketers Association of America
Portland Cement Association
Precision Machined Products Association
Precision Metalforming Association
Rhode Island Center for Freedom and Prosperity
Rio Grande Foundation (New Mexico)
Roanoke Valley Chamber of Commerce
Rogers-Lowell Area Chamber of Commerce
Roof Coatings Manufacturers Association (RCMA)
Secure America's Future Economy
Silver City Grant County Chamber of Commerce
Small Business and Entrepreneurship Council
Society of Chemical Manufacturers and Affiliates
Society of Independent Gasoline Marketers of America
South Carolina Chamber of Commerce
South Carolina Manufacturing Alliance
South Carolina Petroleum Council
SPI: The Plastics Industry Trade Association
Taxpayers Protection Alliance
Tea Party Nation
Tennessee Chamber of Commerce and Industry
Tennessee Petroleum Council
Texas Association of Business
Texas Association of Manufacturers
Texas Chemical Council
Texas Conservative Coalition Research Institute
Texas Forest Industries Council
Texas Public Policy Foundation
The Business Council of New York State
The Chamber of Commerce of Reno, Sparks, and Northern
Nevada
The Fertilizer Institute
The Heartland Institute
The Kansas Chamber of Commerce
The Lake Houston Area Chamber of Commerce
The LIBRE Initiative
The Maine Heritage Policy Center
The Ohio Manufacturers' Association
Thomas Jefferson Institute for Public Policy (Virginia)
Treated Wood Council
Truck and Engine Manufacturers Association
U.S. Chamber of Commerce
United for Missouri
Upstate Chamber Coalition
Utah Petroleum Association
Virginia Chamber of Commerce
Virginia Forestry Association
Virginia Manufacturers Association
Virginia Petroleum Council
West Baton Rouge Chamber of Commerce
West Virginia Chamber of Commerce
West Virginia Manufacturers Association
West Virginia Petroleum Council
Western Wood Preservers Institute
Wichita Metro Chamber of Commerce
Wisconsin Manufacturers & Commerce
Wisconsin Paper Council
Wyoming Ag-Business Association
Wyoming Business Alliance
Hearings
The Subcommittee on Energy and Power held a hearing on H.R.
4775 on April 14, 2016. The hearing was entitled, ``H.R. 4775,
Ozone Standards Implementation Act of 2016'' and witnesses
included the following:
Bryan W. Shaw, Chairman, Texas Commission on
Environmental Quality;
Seyed Sadredin, Executive Director/Air
Pollution Control Officer, San Joaquin Valley Air
Pollution Control District;
Misael Cabrera, Director, Arizona Department
of Environmental Quality;
Alan Matheson, Executive Director, Utah
Department of Environmental Quality; and
Ali Mirzakhalili, Director, Division of Air
Quality, Delaware Department of Natural Resources and
Environmental Control.While EPA did not participate in
the hearing, Acting Assistant Administrator Janet McCabe provided a
written statement for the record.\36\
---------------------------------------------------------------------------
\36\See Written Statement of Janet McCabe, Acting Assistant
Administrator, Office of Air and Radiation, EPA available at http://
docs.house.gov/meetings/IF/IF03/20160414/104778/HHRG-114-IF03-20160414-
SD003.pdf.
---------------------------------------------------------------------------
Prior to introduction of H.R. 4775, in the 114th Congress
the Subcommittee on Energy and Power also held hearing entitled
``EPA's Proposed Ozone Rule'' on June 12, 2015, and a joint
hearing with the Subcommittee on Commerce, Manufacturing, and
Trade entitled ``EPA's Proposed Ozone Rule: Potential Impacts
on Manufacturing,'' on June 16, 2015. Further, in the 113th
Congress, the Subcommittee held a hearing entitled ``Promoting
New Manufacturing Act'' on May 21, 2014, which examined a
discussion draft of H.R. 4795 introduced by Rep. Scalise on May
30, 2014, and passed by the House of Representatives on
November 20, 2014, which included provisions similar to those
reflected in Sections 2(a) and 3(d) of H.R. 4775 relating to
preconstruction permits.
Committee Consideration
On May 11 and 12, 2016, the Subcommittee on Energy and
Power met in open markup session to consider H.R. 4775, and
forwarded the bill to the full Committee, without amendment, by
a record vote of 15 ayes and 13 nays. During the markup, three
amendments were offered, of which two were offered and rejected
by a record vote and one was offered and rejected by a voice
vote.
On May 17 and 18, 2016, the Committee on Energy and
Commerce met in open markup session to consider H.R. 4775.
During the markup, seven amendments were offered, of which two
were offered and approved by voice vote, four were offered and
rejected by a record vote, and one was offered and rejected by
a voice vote. A motion by Mr. Upton to order H.R. 4775 reported
to the House, as amended, was agreed to by a record vote of 30
ayes and 23 nays.
Committee Votes
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee to list the record votes
on the motion to report legislation and amendments thereto. The
following reflects the record votes taken during the Committee
consideration:
Committee Oversight Findings
Pursuant to clause 3(c)(1) of rule XIII of the Rules of the
House of Representatives, the Committee made findings that are
reflected in this report.
Statement of General Performance Goals and Objectives
H.R. 4775 would facilitate more efficient implementation of
the ozone standards and NAAQS generally.
New Budget Authority, Entitlement Authority, and Tax Expenditures
In compliance with clause 3(c)(2) of rule XIII of the Rules
of the House of Representatives, the Committee finds that H.R.
4775 would result in no new or increased budget authority,
entitlement authority, or tax expenditures or revenues.
Earmark, Limited Tax Benefits, and Limited Tariff Benefits
In compliance with clause 9(e), 9(f), and 9(g) of rule XXI
of the Rules of the House of Representatives, the Committee
finds that H.R. 4775 contains no earmarks, limited tax
benefits, or limited tariff benefits.
Committee Cost Estimate
The Committee adopts as its own the cost estimate prepared
by the Director of the Congressional Budget Office pursuant to
section 402 of the Congressional Budget Act of 1974. At the
time this report was filed, the estimate was not available.
Congressional Budget Office Estimate
At the time this report was filed, the cost estimate
prepared by the Director of the Congressional Budget Office
pursuant to section 402 of the Congressional Budget Act of 1974
was not available.
Federal Mandates Statement
The Committee adopts as its own the estimate of Federal
mandates prepared by the Director of the Congressional Budget
Office pursuant to section 423 of the Unfunded Mandates Reform
Act.
Duplication of Federal Programs
No provision of H.R. 4775 establishes or reauthorizes a
program of the Federal Government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Disclosure of Directed Rule Makings
The Committee estimates that enacting H.R. 4775
specifically directs to be completed no specific rulemakings
within the meaning of 5 U.S.C. 551 that would not otherwise be
issued by the agency.
Advisory Committee Statement
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act were created by this
legislation.
Applicability to Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
Section-by-Section Analysis of the Legislation
The legislation includes the following provisions:
Section 1. Short title
This section provides the short title of ``Ozone Standards
Implementation Act of 2016.''
Section 2. Facilitating state implementation of existing ozone
standards
This section provides a schedule for implementation of the
NAAQS for ground-level ozone published in 2015. Section 2(a)
provides that States shall submit designations to implement the
2015 NAAQS for ground-level ozone not later than October 26,
2024, the Administrator of the Environmental Protection Agency
(EPA) shall promulgate final designations with respect to those
standards not later than October 26, 2025, and States shall
submit implementation plans not later than October 26, 2026.
Section 2(b)(1) provides the standards shall not apply to
the review and disposition of a preconstruction permit
application required under title I of the Clean Air Act (42
U.S.C. 7401 et seq.) if the Administrator or the State, local,
or tribal permitting authority, as applicable, has determined
the application to be complete prior to the date of
promulgation of final designation of an area, or has published
a public notice of a preliminary determination or draft permit
before the date that is 60 days after the date of promulgation
of final designation.
Section 2(b)(2) provides that the section shall not be
construed to eliminate the obligation of a preconstruction
permit applicant to install best available control technology
and lowest achievable emission rate technology, as applicable,
or limit the authority of a State, local, or tribal permitting
authority to impose more stringent emissions requirements than
the NAAQS.
Section 3. Facilitating state implementation of national ambient air
quality standards
This section includes provisions to facilitate more
efficient implementation of NAAQS by States.
Section 3(a)(1) would extend the current NAAQS review cycle
for criteria pollutants from five years to ten years. Section
3(a)(2) would provide that no revision of the ozone standards
shall be proposed prior to October 26, 2025.
Section 3(b) provides that the Administrator, when
establishing or revising a NAAQS, may consider, as a secondary
consideration, likely technological feasibility.
Section 3(c) provides that the Administrator, prior to
establishing or revising a NAAQS, shall request, and the Clean
Air Scientific Advisory Committee shall provide, the advice
provided for in Section 109(d)(2)(C)(iv) of the Clean Air Act
regarding any adverse public health, welfare, social, economic,
or energy effects, which may result from various strategies for
attainment and maintenance of such national ambient air quality
standards.
Section 3(d) provides that the Administrator, when
establishing or revising a NAAQS, shall concurrently publish
implementing regulations and guidance as necessary to assist
States, permitting authorities and permitting applicants, and
that the new or revised NAAQS shall not apply to
preconstruction permit applications until such final
regulations and guidance have been published.
Section 3(e) provides that in Extreme ozone nonattainment
areas, contingency measures are not required to be included in
nonattainment plans.
Sections 3(f)(1), (2) and (3) ensure that economic
feasibility, in addition to technological achievability, be
taken into consideration in certain requirements for plans for
Moderate, Serious, and Extreme ozone nonattainment areas.
Section 3(f)(4) eliminates certain demonstration requirements
in approving provisions of an implementation plan for an
Extreme ozone nonattainment and which anticipates development
of new control techniques or improvement of existing control
technologies.
Section 3(g) provides that, for particulate matter
nonattainment areas, the milestones that must be included in
plans to show reasonable further progress must take into
account technological achievability and economic feasibility.
Section 3(h) provides that with respect to air quality
monitoring data influenced by exceptional events, an
exceptional event may include stagnation of air masses that are
not ordinarily occurring, and may also include a meteorological
event involving high temperatures or lack of precipitation.
Section 3(i) provides that within two years of enactment of
the Act, the Administrator, in consultation with States, shall
submit to Congress a report on (i) the extent to which foreign
sources of air pollution impact the area designations and the
attainment and maintenance of NAAQS; (ii) the EPA's procedures
and timelines for disposing of petitions relating to emissions
from sources emanating outside the United States that are
submitted pursuant to section 179B(b) of the Clean Air Act;
(iii) the total number of such petitions received by the agency
and related information; and (iv) whether the Administrator
recommends any statutory changes to facilitate more efficient
review and disposition of such petitions.
Section 3(j) provides that the Administrator shall, in
consultation with the National Oceanic and Atmospheric
Administration: (i) conduct a study on the atmospheric
formation of ozone and effective control strategies, including
with regard to the relative contribution of manmade and
naturally occurring nitrogen oxides, volatile organic
compounds, and other pollutants in ozone formation in urban and
rural areas, and with regard to wintertime ozone; (ii) that the
study be peer reviewed in accordance with the requirements
applicable to highly influential scientific assessments; (iii)
that the Administrator submit a report to Congress describing
the results of the study; and (iv) that the Administrator
incorporate the results of the study into any Federal rules and
guidance implementing the 2015 ozone standards.
Section 4. Definitions
This section contains the following definitions:
(1) The term ``Administrator'' means the EPA Administrator.
(2) The term ``Best Available Control Technology'' has the
meaning given that term in Clean Air Act Section 169(3).
(3) The term ``Highly Influential Scientific Assessment''
means a highly influential scientific assessment as defined in
the publication of the Office of Management and Budget entitled
``Final Information Quality Bulletin for Peer Review'' (70 Fed.
Reg. 2664 (January 14, 2005)).
(4) The term ``Lowest Achievable Emission Rate'' has the
meaning given that term in Clean Air Act Section 171(3).
(5) The term ``national ambient air quality standard''
means a national ambient air quality standard promulgated
pursuant to Clean Air Act Section 109.
(6) The term ``Preconstruction Permit'' means a permit that
is required under title I of the Clean Air Act (42 U.S.C. 7401
et seq.) for the construction or modification of a stationary
source, and includes any such permit issued by the EPA or a
State, local, or tribal permitting authority.
(7) The term ``2015 Ozone Standards'' means the national
ambient air quality standard for ozone published in the Federal
Register on October 26, 2015 (80 Fed. Reg. 65292).
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, and existing law in which no
change is proposed is shown in roman):
CLEAN AIR ACT
* * * * * * *
TITLE I--AIR POLLUTION PREVENTION AND CONTROL
Part A--Air Quality and Emission Limitations
* * * * * * *
national ambient air quality standards
Sec. 109. (a)(1) The Administrator--
(A) within 30 days after the date of enactment of the
Clean Air Amendments of 1970, shall publish proposed
regulations prescribing a national primary ambient air
quality standard and a national secondary ambient air
quality standard for each air pollutant for which air
quality criteria have been issued prior to such date of
enactment; and
(B) after a reasonable time for interested persons to
submit written comments thereon (but no later than 90
days after the initial publication of such proposed
standards) shall by regulation promulgate such proposed
national primary and secondary ambient air quality
standards with such modifications as he deems
appropriate.
(2) With respect to any air pollutant for which air quality
criteria are issued after the date of enactment of the Clean
Air Amendments of 1970, the Administrator shall publish,
simultaneously with the issuance of such criteria and
information, proposed national primary and secondary ambient
air quality standards for any such pollutant. The procedure
provided for in paragraph (1)(B) of this subsection shall apply
to the promulgation of such standards.
(b)(1) National primary ambient air quality standards,
prescribed, under subsection (a) shall be ambient air quality
standards the attainment and maintenance of which in the
judgment of the Administrator, based on such criteria and
allowing an adequate margin of safety, are requisite to protect
the public health. If the Administrator, in consultation with
the independent scientific review committee appointed under
subsection (d), finds that a range of levels of air quality for
an air pollutant are requisite to protect public health with an
adequate margin of safety, as described in the preceding
sentence, the Administrator may consider, as a secondary
consideration, likely technological feasibility in establishing
and revising the national primary ambient air quality standard
for such pollutant. Such primary standards may be revised in
the same manner as promulgated.
(2) Any national secondary ambient air quality standard
prescribed, under subsection (a) shall specify a level of air
quality the attainment and maintenance of which in the judgment
of the Administrator, based on such criteria, is requisite to
protect the public welfare from any known or anticipated
adverse effects associated with the presence of such air
pollutant in the ambient air. Such secondary standards may be
revised in the same manner as promulgated.
(c) The Administrator shall, not later than one year after
the date of the enactment of the Clean Air Act Amendments of
1977, promulgate a national primary ambient air quality
standard for NO2 concentrations over a period of not
more than 3 hours unless, based on the criteria issued under
section 108(c), he finds that there is no significant evidence
that such a standard for such a period is requisite to protect
public health.
(d)(1) Not later than December 31, 1980, and at [five-year
intervals] 10-year intervals thereafter, the Administrator
shall complete a thorough review of the criteria published
under section 108 and the national ambient air quality
standards promulgated under this section and shall make such
revisions in such criteria and standards and promulgate such
new standards as may be appropriate in accordance with section
108 and subsection (b) of this section. The Administrator may
review and revise criteria or promulgate new standards earlier
or more frequently than required under this paragraph.
(2)(A) The Administrator shall appoint an independent
scientific review committee composed of seven members including
at least one member of the National Academy of Sciences, one
physician, and one person representing State air pollution
control agencies.
(B) Not later than January 1, 1980, and at [five-year
intervals] 10-year intervals thereafter, the committee referred
to in subparagraph (A) shall complete a review of the criteria
published under section 108 and the national primary and
secondary ambient air quality standards promulgated under this
section and shall recommend to the Administrator any new
national ambient air quality standards and revisions of
existing criteria and standards as may be appropriate under
section 108 and subsection (b) of this section.
(C) Such committee shall also (i) advise the Administrator of
areas in which additional knowledge is required to appraise the
adequacy and basis of existing, new, or revised national
ambient air quality standards, (ii) describe the research
efforts necessary to provide the required information, (iii)
advise the Administrator on the relative contribution to air
pollution concentrations of natural as well as anthropogenic
activity, and (iv) advise the Administrator of any adverse
public health, welfare, social, economic, or energy effects
which may result from various strategies for attainment and
maintenance of such national ambient air quality standards.
(D) Prior to establishing or revising a national ambient air
quality standard, the Administrator shall request, and such
committee shall provide, advice under subparagraph (C)(iv)
regarding any adverse public health, welfare, social, economic,
or energy effects which may result from various strategies for
attainment and maintenance of such national ambient air quality
standard.
(e) Timely Issuance of Implementing Regulations and
Guidance.--
(1) In general.--In publishing any final rule
establishing or revising a national ambient air quality
standard, the Administrator shall, as the Administrator
determines necessary to assist States, permitting
authorities, and permit applicants, concurrently
publish regulations and guidance for implementing the
standard, including information relating to submission
and consideration of a preconstruction permit
application under the new or revised standard.
(2) Applicability of standard to preconstruction
permitting.--If the Administrator fails to publish
final regulations and guidance that include information
relating to submission and consideration of a
preconstruction permit application under a new or
revised national ambient air quality standard
concurrently with such standard, then such standard
shall not apply to the review and disposition of a
preconstruction permit application until the
Administrator has published such final regulations and
guidance.
(3) Rules of construction.--
(A) Nothing in this subsection shall be
construed to preclude the Administrator from
issuing regulations and guidance to assist
States, permitting authorities, and permit
applicants in implementing a national ambient
air quality standard subsequent to publishing
regulations and guidance for such standard
under paragraph (1).
(B) Nothing in this subsection shall be
construed to eliminate the obligation of a
preconstruction permit applicant to install
best available control technology and lowest
achievable emission rate technology, as
applicable.
(C) Nothing in this subsection shall be
construed to limit the authority of a State,
local, or tribal permitting authority to impose
more stringent emissions requirements pursuant
to State, local, or tribal law than national
ambient air quality standards.
(4) Definitions.--In this subsection:
(A) The term ``best available control
technology'' has the meaning given to that term
in section 169(3).
(B) The term ``lowest achievable emission
rate'' has the meaning given to that term in
section 171(3).
(C) The term ``preconstruction permit''--
(i) means a permit that is required
under this title for the construction
or modification of a stationary source;
and
(ii) includes any such permit issued
by the Environmental Protection Agency
or a State, local, or tribal permitting
authority.
* * * * * * *
Part D--Plan Requirements for Nonattainment Areas
Subpart 1--Nonattainment Areas in General
* * * * * * *
SEC. 172. NONATTAINMENT PLAN PROVISIONS IN GENERAL.
(a) Classifications and Attainment Dates.--
(1) Classifications.--(A) On or after the date the
Administrator promulgates the designation of an area as
a nonattainment area pursuant to section 107(d) with
respect to any national ambient air quality standard
(or any revised standard, including a revision of any
standard in effect on the date of the enactment of the
Clean Air Act Amendments of 1990), the Administrator
may classify the area for the purpose of applying an
attainment date pursuant to paragraph (2), and for
other purposes. In determining the appropriate
classification, if any, for a nonattainment area, the
Administrator may consider such factors as the severity
of nonattainment in such area and the availability and
feasibility of the pollution control measures that the
Administrator believes may be necessary to provide for
attainment of such standard in such area.
(B) The Administrator shall publish a notice in the
Federal Register announcing each classification under
subparagraph (A), except the Administrator shall
provide an opportunity for at least 30 days for written
comment. Such classification shall not be subject to
the provisions of sections 553 through 557 of title 5
of the United States Code (concerning notice and
comment) and shall not be subject to judicial review
until the Administrator takes final action under
subsection (k) or (l) of section 110 (concerning action
on plan submissions) or section 179 (concerning
sanctions) with respect to any plan submissions
required by virtue of such classification.
(C) This paragraph shall not apply with respect to
nonattainment areas for which classifications are
specifically provided under other provisions of this
part.
(2) Attainment dates for nonattainment areas.--(A)
The attainment date for an area designated
nonattainment with respect to a national primary
ambient air quality standard shall be the date by which
attainment can be achieved as expeditiously as
practicable, but no later than 5 years from the date
such area was designated nonattainment under section
107(d), except that the Administrator may extend the
attainment date to the extent the Administrator
determines appropriate, for a period no greater than 10
years from the date of designation as nonattainment,
considering the severity of nonattainment and the
availability and feasibility of pollution control
measures.
(B) The attainment date for an area designated
nonattainment with respect to a secondary national
ambient air quality standard shall be the date by which
attainment can be achieved as expeditiously as
practicable after the date such area was designated
nonattainment under section 107(d).
(C) Upon application by any State, the Administrator
may extend for 1 additional year (hereinafter referred
to as the ``Extension Year'') the attainment date
determined by the Administrator under subparagraph (A)
or (B) if--
(i) the State has complied with all
requirements and commitments pertaining to the
area in the applicable implementation plan, and
(ii) in accordance with guidance published by
the Administrator, no more than a minimal
number of exceedances of the relevant national
ambient air quality standard has occurred in
the area in the year preceding the Extension
Year.
No more than 2 one-year extensions may be issued under
this subparagraph for a single nonattainment area.
(D) This paragraph shall not apply with respect to
nonattainment areas for which attainment dates are
specifically provided under other provisions of this
part.
(b) Schedule for Plan Submissions.--At the time the
Administrator promulgates the designation of an area as
nonattainment with respect to a national ambient air quality
standard under section 107(d), the Administrator shall
establish a schedule according to which the State containing
such area shall submit a plan or plan revision (including the
plan items) meeting the applicable requirements of subsection
(c) and section 110(a)(2). Such schedule shall at a minimum,
include a date or dates, extending no later than 3 years from
the date of the nonattainment designation, for the submission
of a plan or plan revision (including the plan items) meeting
the applicable requirements of subsection (c) and section
110(a)(2).
(c) Nonattainment Plan Provisions.--The plan provisions
(including plan items) required to be submitted under this part
shall comply with each of the following:
(1) In general.--Such plan provisions shall provide
for the implementation of all reasonably available
control measures as expeditiously as practicable
(including such reductions in emissions from existing
sources in the area as may be obtained through the
adoption, at a minimum, of reasonably available control
technology) and shall provide for attainment of the
national primary ambient air quality standards.
(2) RFP.--Such plan provisions shall require
reasonable further progress.
(3) Inventory.--Such plan provisions shall include a
comprehensive, accurate, current inventory of actual
emissions from all sources of the relevant pollutant or
pollutants in such area, including such periodic
revisions as the Administrator may determine necessary
to assure that the requirements of this part are met.
(4) Identification and quantification.--Such plan
provisions shall expressly identify and quantify the
emissions, if any, of any such pollutant or pollutants
which will be allowed, in accordance with section
173(a)(1)(B), from the construction and operation of
major new or modified stationary sources in each such
area. The plan shall demonstrate to the satisfaction of
the Administrator that the emissions quantified for
this purpose will be consistent with the achievement of
reasonable further progress and will not interfere with
attainment of the applicable national ambient air
quality standard by the applicable attainment date.
(5) Permits for new and modified major stationary
sources.--Such plan provisions shall require permits
for the construction and operation of new or modified
major stationary sources anywhere in the nonattainment
area, in accordance with section 173.
(6) Other measures.--Such plan provisions shall
include enforceable emission limitations, and such
other control measures, means or techniques (including
economic incentives such as fees, marketable permits,
and auctions of emission rights), as well as schedules
and timetables for compliance, as may be necessary or
appropriate to provide for attainment of such standard
in such area by the applicable attainment date
specified in this part.
(7) Compliance with section 110(a)(2).--Such plan
provisions shall also meet the applicable provisions of
section 110(a)(2).
(8) Equivalent techniques.--Upon application by any
State, the Administrator may allow the use of
equivalent modeling, emission inventory, and planning
procedures, unless the Administrator determines that
the proposed techniques are, in the aggregate, less
effective than the methods specified by the
Administrator.
(9) Contingency measures.--Such plan shall provide
for the implementation of specific measures to be
undertaken if the area fails to make reasonable further
progress, or to attain the national primary ambient air
quality standard by the attainment date applicable
under this part. Such measures shall be included in the
plan revision as contingency measures to take effect in
any such case without further action by the State or
the Administrator. Notwithstanding the preceding
sentences and any other provision of this Act, such
measures shall not be required for any nonattainment
area for ozone classified as an Extreme Area.
(d) Plan Revisions Required in Response to Finding of Plan
Inadequacy.--Any plan revision for a nonattainment area which
is required to be submitted in response to a finding by the
Administrator pursuant to section 110(k)(5) (relating to calls
for plan revisions) must correct the plan deficiency (or
deficiencies) specified by the Administrator and meet all other
applicable plan requirements of section 110 and this part. The
Administrator may reasonably adjust the dates otherwise
applicable under such requirements to such revision (except for
attainment dates that have not yet elapsed), to the extent
necessary to achieve a consistent application of such
requirements. In order to facilitate submittal by the States of
adequate and approvable plans consistent with the applicable
requirements of this Act, the Administrator shall, as
appropriate and from time to time, issue written guidelines,
interpretations, and information to the States which shall be
available to the public, taking into consideration any such
guidelines, interpretations, or information provided before the
date of the enactment of the Clean Air Act Amendments of 1990.
(e) Future Modification of Standard.--If the Administrator
relaxes a national primary ambient air quality standard after
the date of the enactment of the Clean Air Act Amendments of
1990, the Administrator shall, within 12 months after the
relaxation, promulgate requirements applicable to all areas
which have not attained that standard as of the date of such
relaxation. Such requirements shall provide for controls which
are not less stringent than the controls applicable to areas
designated nonattainment before such relaxation.
* * * * * * *
Subpart 2--Additional Provisions for Ozone Nonattainment Areas
* * * * * * *
SEC. 182. PLAN SUBMISSIONS AND REQUIREMENTS.
(a) Marginal Areas.--Each State in which all or part of a
Marginal Area is located shall, with respect to the Marginal
Area (or portion thereof, to the extent specified in this
subsection), submit to the Administrator the State
implementation plan revisions (including the plan items)
described under this subsection except to the extent the State
has made such submissions as of the date of the enactment of
the Clean Air Act Amendments of 1990.
(1) Inventory.--Within 2 years after the date of the
enactment of the Clean Air Act Amendments of 1990, the
State shall submit a comprehensive, accurate, current
inventory of actual emissions from all sources, as
described in section 172(c)(3), in accordance with
guidance provided by the Administrator.
(2) Corrections to the state implementation plan.--
Within the periods prescribed in this paragraph, the
State shall submit a revision to the State
implementation plan that meets the following
requirements--
(A) Reasonably available control technology
corrections.--For any Marginal Area (or, within
the Administrator's discretion, portion
thereof) the State shall submit, within 6
months of the date of classification under
section 181(a), a revision that includes such
provisions to correct requirements in (or add
requirements to) the plan concerning reasonably
available control technology as were required
under section 172(b) (as in effect immediately
before the date of the enactment of the Clean
Air Act Amendments of 1990), as interpreted in
guidance issued by the Administrator under
section 108 before the date of the enactment of
the Clean Air Act Amendments of 1990.
(B) Savings clause for vehicle inspection and
maintenance.--(i) For any Marginal Area (or,
within the Administrator's discretion, portion
thereof), the plan for which already includes,
or was required by section 172(b)(11)(B) (as in
effect immediately before the date of the
enactment of the Clean Air Act Amendments of
1990) to have included, a specific schedule for
implementation of a vehicle emission control
inspection and maintenance program, the State
shall submit, immediately after the date of the
enactment of the Clean Air Act Amendments of
1990, a revision that includes any provisions
necessary to provide for a vehicle inspection
and maintenance program of no less stringency
than that of either the program defined in
House Report Numbered 95-294, 95th Congress,
1st Session, 281-291 (1977) as interpreted in
guidance of the Administrator issued pursuant
to section 172(b)(11)(B) (as in effect
immediately before the date of the enactment of
the Clean Air Act Amendments of 1990) or the
program already included in the plan, whichever
is more stringent.
(ii) Within 12 months after the date of the
enactment of the Clean Air Act Amendments of
1990, the Administrator shall review, revise,
update, and republish in the Federal Register
the guidance for the States for motor vehicle
inspection and maintenance programs required by
this Act, taking into consideration the
Administrator's investigations and audits of
such program. The guidance shall, at a minimum,
cover the frequency of inspections, the types
of vehicles to be inspected (which shall
include leased vehicles that are registered in
the nonattainment area), vehicle maintenance by
owners and operators, audits by the State, the
test method and measures, including whether
centralized or decentralized, inspection
methods and procedures, quality of inspection,
components covered, assurance that a vehicle
subject to a recall notice from a manufacturer
has complied with that notice, and effective
implementation and enforcement, including
ensuring that any retesting of a vehicle after
a failure shall include proof of corrective
action and providing for denial of vehicle
registration in the case of tampering or
misfueling. The guidance which shall be
incorporated in the applicable State
implementation plans by the States shall
provide the States with continued reasonable
flexibility to fashion effective, reasonable,
and fair programs for the affected consumer. No
later than 2 years after the Administrator
promulgates regulations under section 202(m)(3)
(relating to emission control diagnostics), the
State shall submit a revision to such program
to meet any requirements that the Administrator
may prescribe under that section.
(C) Permit programs.--Within 2 years after
the date of the enactment of the Clean Air Act
Amendments of 1990, the State shall submit a
revision that includes each of the following:
(i) Provisions to require permits, in
accordance with sections 172(c)(5) and
173, for the construction and operation
of each new or modified major
stationary source (with respect to
ozone) to be located in the area.
(ii) Provisions to correct
requirements in (or add requirements
to) the plan concerning permit programs
as were required under section
172(b)(6) (as in effect immediately
before the date of the enactment of the
Clean Air Act Amendments of 1990), as
interpreted in regulations of the
Administrator promulgated as of the
date of the enactment of the Clean Air
Act Amendments of 1990.
(3) Periodic inventory.--
(A) General requirement.--No later than the
end of each 3-year period after submission of
the inventory under paragraph (1) until the
area is redesignated to attainment, the State
shall submit a revised inventory meeting the
requirements of subsection (a)(1).
(B) Emissions statements.--(i) Within 2 years
after the date of the enactment of the Clean
Air Act Amendments of 1990, the State shall
submit a revision to the State implementation
plan to require that the owner or operator of
each stationary source of oxides of nitrogen or
volatile organic compounds provide the State
with a statement, in such form as the
Administrator may prescribe (or accept an
equivalent alternative developed by the State),
for classes or categories of sources, showing
the actual emissions of oxides of nitrogen and
volatile organic compounds from that source.
The first such statement shall be submitted
within 3 years after the date of the enactment
of the Clean Air Act Amendments of 1990.
Subsequent statements shall be submitted at
least every year thereafter. The statement
shall contain a certification that the
information contained in the statement is
accurate to the best knowledge of the
individual certifying the statement.
(ii) The State may waive the application of
clause (i) to any class or category of
stationary sources which emit less than 25 tons
per year of volatile organic compounds or
oxides of nitrogen if the State, in its
submissions under subparagraphs (1) or (3)(A),
provides an inventory of emissions from such
class or category of sources, based on the use
of the emission factors established by the
Administrator or other methods acceptable to
the Administrator.
(4) General offset requirement.--For purposes of
satisfying the emission offset requirements of this
part, the ratio of total emission reductions of
volatile organic compounds to total increased emissions
of such air pollutant shall be at least 1.1 to 1.
The Administrator may, in the Administrator's discretion,
require States to submit a schedule for submitting any of the
revisions or other items required under this subsection. The
requirements of this subsection shall apply in lieu of any
requirement that the State submit a demonstration that the
applicable implementation plan provides for attainment of the
ozone standard by the applicable attainment date in any
Marginal Area. Section 172(c)(9) (relating to contingency
measures) shall not apply to Marginal Areas.
(b) Moderate Areas.--Each State in which all or part of a
Moderate Area is located shall, with respect to the Moderate
Area, make the submissions described under subsection (a)
(relating to Marginal Areas), and shall also submit the
revisions to the applicable implementation plan described under
this subsection.
(1) Plan provisions for reasonable further
progress.--
(A) General rule.--(i) By no later than 3
years after the date of the enactment of the
Clean Air Act Amendments of 1990, the State
shall submit a revision to the applicable
implementation plan to provide for volatile
organic compound emission reductions, within 6
years after the date of the enactment of the
Clean Air Act Amendments of 1990, of at least
15 percent from baseline emissions, accounting
for any growth in emissions after the year in
which the Clean Air Act Amendments of 1990 are
enacted. Such plan shall provide for such
specific annual reductions in emissions of
volatile organic compounds and oxides of
nitrogen as necessary to attain the national
primary ambient air quality standard for ozone
by the attainment date applicable under this
Act. This subparagraph shall not apply in the
case of oxides of nitrogen for those areas for
which the Administrator determines (when the
Administrator approves the plan or plan
revision) that additional reductions of oxides
of nitrogen would not contribute to attainment.
(ii) A percentage less than 15 percent may be
used for purposes of clause (i) in the case of
any State which demonstrates to the
satisfaction of the Administrator that--
(I) new source review provisions are
applicable in the nonattainment areas
in the same manner and to the same
extent as required under subsection (e)
in the case of Extreme Areas (with the
exception that, in applying such
provisions, the terms ``major source''
and ``major stationary source'' shall
include (in addition to the sources
described in section 302) any
stationary source or group of sources
located within a contiguous area and
under common control that emits, or has
the potential to emit, at least 5 tons
per year of volatile organic
compounds);
(II) reasonably available control
technology is required for all existing
major sources (as defined in subclause
(I)); and
(III) the plan reflecting a lesser
percentage than 15 percent includes all
measures that can feasibly be
implemented in the area, in light of
technological achievability and
economic feasibility.
To qualify for a lesser percentage under this
clause, a State must demonstrate to the
satisfaction of the Administrator that the plan
for the area includes the measures that are
achieved in practice by sources in the same
source category in nonattainment areas of the
next higher category.
(B) Baseline emissions.--For purposes of
subparagraph (A), the term ``baseline
emissions'' means the total amount of actual
VOC or NOx emissions from all
anthropogenic sources in the area during the
calendar year of the enactment of the Clean Air
Act Amendments of 1990, excluding emissions
that would be eliminated under the regulations
described in clauses (i) and (ii) of
subparagraph (D).
(C) General rule for creditability of
reductions.--Except as provided under
subparagraph (D), emissions reductions are
creditable toward the 15 percent required under
subparagraph (A) to the extent they have
actually occurred, as of 6 years after the date
of the enactment of the Clean Air Act
Amendments of 1990, from the implementation of
measures required under the applicable
implementation plan, rules promulgated by the
Administrator, or a permit under title V.
(D) Limits on creditability of reductions.--
Emission reductions from the following measures
are not creditable toward the 15 percent
reductions required under subparagraph (A):
(i) Any measure relating to motor
vehicle exhaust or evaporative
emissions promulgated by the
Administrator by January 1, 1990.
(ii) Regulations concerning Reid
Vapor Pressure promulgated by the
Administrator by the date of the
enactment of the Clean Air Act
Amendments of 1990 or required to be
promulgated under section 211(h).
(iii) Measures required under
subsection (a)(2)(A) (concerning
corrections to implementation plans
prescribed under guidance by the
Administrator).
(iv) Measures required under
subsection (a)(2)(B) to be submitted
immediately after the date of the
enactment of the Clean Air Act
Amendments of 1990 (concerning
corrections to motor vehicle inspection
and maintenance programs).
(2) Reasonably available control technology.--The
State shall submit a revision to the applicable
implementation plan to include provisions to require
the implementation of reasonably available control
technology under section 172(c)(1) with respect to each
of the following:
(A) Each category of VOC sources in the area
covered by a CTG document issued by the
Administrator between the date of the enactment
of the Clean Air Act Amendments of 1990 and the
date of attainment.
(B) All VOC sources in the area covered by
any CTG issued before the date of the enactment
of the Clean Air Act Amendments of 1990.
(C) All other major stationary sources of
VOCs that are located in the area.
Each revision described in subparagraph (A) shall be
submitted within the period set forth by the
Administrator in issuing the relevant CTG document. The
revisions with respect to sources described in
subparagraphs (B) and (C) shall be submitted by 2 years
after the date of the enactment of the Clean Air Act
Amendments of 1990, and shall provide for the
implementation of the required measures as
expeditiously as practicable but no later than May 31,
1995.
(3) Gasoline vapor recovery.--
(A) General rule.--Not later than 2 years
after the date of the enactment of the Clean
Air Act Amendments of 1990, the State shall
submit a revision to the applicable
implementation plan to require all owners or
operators of gasoline dispensing systems to
install and operate, by the date prescribed
under subparagraph (B), a system for gasoline
vapor recovery of emissions from the fueling of
motor vehicles. The Administrator shall issue
guidance as appropriate as to the effectiveness
of such system. This subparagraph shall apply
only to facilities which sell more than 10,000
gallons of gasoline per month (50,000 gallons
per month in the case of an independent small
business marketer of gasoline as defined in
section 325).
(B) Effective date.--The date required under
subparagraph (A) shall be--
(i) 6 months after the adoption date,
in the case of gasoline dispensing
facilities for which construction
commenced after the date of the
enactment of the Clean Air Act
Amendments of 1990;
(ii) one year after the adoption
date, in the case of gasoline
dispensing facilities which dispense at
least 100,000 gallons of gasoline per
month, based on average monthly sales
for the 2-year period before the
adoption date; or
(iii) 2 years after the adoption
date, in the case of all other gasoline
dispensing facilities.
Any gasoline dispensing facility described
under both clause (i) and clause (ii) shall
meet the requirements of clause (i).
(C) Reference to terms.--For purposes of this
paragraph, any reference to the term ``adoption
date'' shall be considered a reference to the
date of adoption by the State of requirements
for the installation and operation of a system
for gasoline vapor recovery of emissions from
the fueling of motor vehicles.
(4) Motor vehicle inspection and maintenance.--For
all Moderate Areas, the State shall submit, immediately
after the date of the enactment of the Clean Air Act
Amendments of 1990, a revision to the applicable
implementation plan that includes provisions necessary
to provide for a vehicle inspection and maintenance
program as described in subsection (a)(2)(B) (without
regard to whether or not the area was required by
section 172(b)(11)(B) (as in effect immediately before
the date of the enactment of the Clean Air Act
Amendments of 1990) to have included a specific
schedule for implementation of such a program).
(5) General offset requirement.--For purposes of
satisfying the emission offset requirements of this
part, the ratio of total emission reductions of
volatile organic compounds to total increase emissions
of such air pollutant shall be at least 1.15 to 1.
(c) Serious Areas.--Except as otherwise specified in
paragraph (4), each State in which all or part of a Serious
Area is located shall, with respect to the Serious Area (or
portion thereof, to the extent specified in this subsection),
make the submissions described under subsection (b) (relating
to Moderate Areas), and shall also submit the revisions to the
applicable implementation plan (including the plan items)
described under this subsection. For any Serious Area, the
terms ``major source'' and ``major stationary source'' include
(in addition to the sources described in section 302) any
stationary source or group of sources located within a
contiguous area and under common control that emits, or has the
potential to emit, at least 50 tons per year of volatile
organic compounds.
(1) Enhanced monitoring.--In order to obtain more
comprehensive and representative data on ozone air
pollution, not later than 18 months after the date of
the enactment of the Clean Air Act Amendments of 1990
the Administrator shall promulgate rules, after notice
and public comment, for enhanced monitoring of ozone,
oxides of nitrogen, and volatile organic compounds. The
rules shall, among other things, cover the location and
maintenance of monitors. Immediately following the
promulgation of rules by the Administrator relating to
enhanced monitoring, the State shall commence such
actions as may be necessary to adopt and implement a
program based on such rules, to improve monitoring for
ambient concentrations of ozone, oxides of nitrogen and
volatile organic compounds and to improve monitoring of
emissions of oxides of nitrogen and volatile organic
compounds. Each State implementation plan for the area
shall contain measures to improve the ambient
monitoring of such air pollutants.
(2) Attainment and reasonable further progress
demonstrations.--Within 4 years after the date of the
enactment of the Clean Air Act Amendments of 1990, the
State shall submit a revision to the applicable
implementation plan that includes each of the
following:
(A) Attainment demonstration.--A
demonstration that the plan, as revised, will
provide for attainment of the ozone national
ambient air quality standard by the applicable
attainment date. This attainment demonstration
must be based on photochemical grid modeling or
any other analytical method determined by the
Administrator, in the Administrator's
discretion, to be at least as effective.
(B) Reasonable further progress
demonstration.--A demonstration that the plan,
as revised, will result in VOC emissions
reductions from the baseline emissions
described in subsection (b)(1)(B) equal to the
following amount averaged over each consecutive
3-year period beginning 6 years after the date
of the enactment of the Clean Air Act
Amendments of 1990, until the attainment date:
(i) at least 3 percent of baseline
emissions each year; or
(ii) an amount less than 3 percent of
such baseline emissions each year, if
the State demonstrates to the
satisfaction of the Administrator that
the plan reflecting such lesser amount
includes all measures that can feasibly
be implemented in the area, in light of
technological achievability and
economic feasibility.
To lessen the 3 percent requirement under
clause (ii), a State must demonstrate to the
satisfaction of the Administrator that the plan
for the area includes the measures that are
achieved in practice by sources in the same
source category in nonattainment areas of the
next higher classification. Any determination
to lessen the 3 percent requirement shall be
reviewed at each milestone under section 182(g)
and revised to reflect such new measures (if
any) achieved in practice by sources in the
same category in any State, allowing a
reasonable time to implement such measures. The
emission reductions described in this
subparagraph shall be calculated in accordance
with subsection (b)(1) (C) and (D) (concerning
creditability of reductions). The reductions
creditable for the period beginning 6 years
after the date of the enactment of the Clean
Air Act Amendments of 1990, shall include
reductions that occurred before such period,
computed in accordance with subsection (b)(1),
that exceed the 15-percent amount of reductions
required under subsection (b)(1)(A).
(C) NOxcontrol.--The revision may
contain, in lieu of the demonstration required
under subparagraph (B), a demonstration to the
satisfaction of the Administrator that the
applicable implementation plan, as revised,
provides for reductions of emissions of VOC's
and oxides of nitrogen (calculated according to
the creditability provisions of subsection
(b)(1) (C) and (D)), that would result in a
reduction in ozone concentrations at least
equivalent to that which would result from the
amount of VOC emission reductions required
under subparagraph (B). Within 1 year after the
date of the enactment of the Clean Air Act
Amendments of 1990, the Administrator shall
issue guidance concerning the conditions under
which NOx control may be substituted
for VOC control or may be combined with VOC
control in order to maximize the reduction in
ozone air pollution. In accord with such
guidance, a lesser percentage of VOCs may be
accepted as an adequate demonstration for
purposes of this subsection.
(3) Enhanced vehicle inspection and maintenance
program.--
(A) Requirement for submission.--Within 2
years after the date of the enactment of the
Clean Air Act Amendments of 1990, the State
shall submit a revision to the applicable
implementation plan to provide for an enhanced
program to reduce hydrocarbon emissions and
NOx emissions from in-use motor
vehicles registered in each urbanized area (in
the nonattainment area), as defined by the
Bureau of the Census, with a 1980 population of
200,000 or more.
(B) Effective date of state programs;
guidance.--The State program required under
subparagraph (A) shall take effect no later
than 2 years from the date of the enactment of
the Clean Air Act Amendments of 1990, and shall
comply in all respects with guidance published
in the Federal Register (and from time to time
revised) by the Administrator for enhanced
vehicle inspection and maintenance programs.
Such guidance shall include--
(i) a performance standard achievable
by a program combining emission
testing, including on-road emission
testing, with inspection to detect
tampering with emission control devices
and misfueling for all light-duty
vehicles and all light-duty trucks
subject to standards under section 202;
and
(ii) program administration features
necessary to reasonably assure that
adequate management resources, tools,
and practices are in place to attain
and maintain the performance standard.
Compliance with the performance standard under
clause (i) shall be determined using a method
to be established by the Administrator.
(C) State program.--The State program
required under subparagraph (A) shall include,
at a minimum, each of the following elements--
(i) Computerized emission analyzers,
including on-road testing devices.
(ii) No waivers for vehicles and
parts covered by the emission control
performance warranty as provided for in
section 207(b) unless a warranty remedy
has been denied in writing, or for
tampering-related repairs.
(iii) In view of the air quality
purpose of the program, if, for any
vehicle, waivers are permitted for
emissions-related repairs not covered
by warranty, an expenditure to qualify
for the waiver of an amount of $450 or
more for such repairs (adjusted
annually as determined by the
Administrator on the basis of the
Consumer Price Index in the same manner
as provided in title V).
(iv) Enforcement through denial of
vehicle registration (except for any
program in operation before the date of
the enactment of the Clean Air Act
Amendments of 1990 whose enforcement
mechanism is demonstrated to the
Administrator to be more effective than
the applicable vehicle registration
program in assuring that noncomplying
vehicles are not operated on public
roads).
(v) Annual emission testing and
necessary adjustment, repair, and
maintenance, unless the State
demonstrates to the satisfaction of the
Administrator that a biennial
inspection, in combination with other
features of the program which exceed
the requirements of this Act, will
result in emission reductions which
equal or exceed the reductions which
can be obtained through such annual
inspections.
(vi) Operation of the program on a
centralized basis, unless the State
demonstrates to the satisfaction of the
Administrator that a decentralized
program will be equally effective. An
electronically connected testing
system, a licensing system, or other
measures (or any combination thereof)
may be considered, in accordance with
criteria established by the
Administrator, as equally effective for
such purposes.
(vii) Inspection of emission control
diagnostic systems and the maintenance
or repair of malfunctions or system
deterioration identified by or
affecting such diagnostics systems.
Each State shall biennially prepare a report to
the Administrator which assesses the emission
reductions achieved by the program required
under this paragraph based on data collected
during inspection and repair of vehicles. The
methods used to assess the emission reductions
shall be those established by the
Administrator.
(4) Clean-fuel vehicle programs.--(A) Except to the
extent that substitute provisions have been approved by
the Administrator under subparagraph (B), the State
shall submit to the Administrator, within 42 months of
the date of the enactment of the Clean Air Act
Amendments of 1990, a revision to the applicable
implementation plan for each area described under part
C of title II to include such measures as may be
necessary to ensure the effectiveness of the applicable
provisions of the clean-fuel vehicle program prescribed
under part C of title II, including all measures
necessary to make the use of clean alternative fuels in
clean-fuel vehicles (as defined in part C of title II)
economic from the standpoint of vehicle owners. Such a
revision shall also be submitted for each area that
opts into the clean fuel-vehicle program as provided in
part C of title II.
(B) The Administrator shall approve, as a substitute
for all or a portion of the clean-fuel vehicle program
prescribed under part C of title II, any revision to
the relevant applicable implementation plan that in the
Administrator's judgment will achieve long-term
reductions in ozone-producing and toxic air emissions
equal to those achieved under part C of title II, or
the percentage thereof attributable to the portion of
the clean-fuel vehicle program for which the revision
is to substitute. The Administrator may approve such
revision only if it consists exclusively of provisions
other than those required under this Act for the area.
Any State seeking approval of such revision must submit
the revision to the Administrator within 24 months of
the date of the enactment of the Clean Air Act
Amendments of 1990. The Administrator shall approve or
disapprove any such revision within 30 months of the
date of the enactment of the Clean Air Act Amendments
of 1990. The Administrator shall publish the revision
submitted by a State in the Federal Register upon
receipt. Such notice shall constitute a notice of
proposed rulemaking on whether or not to approve such
revision and shall be deemed to comply with the
requirements concerning notices of proposed rulemaking
contained in sections 553 through 557 of title 5 of the
United States Code (related to notice and comment).
Where the Administrator approves such revision for any
area, the State need not submit the revision required
by subparagraph (A) for the area with respect to the
portions of the Federal clean-fuel vehicle program for
which the Administrator has approved the revision as a
substitute.
(C) If the Administrator determines, under section
179, that the State has failed to submit any portion of
the program required under subparagraph (A), then, in
addition to any sanctions available under section 179,
the State may not receive credit, in any demonstration
of attainment or reasonable further progress for the
area, for any emission reductions from implementation
of the corresponding aspects of the Federal clean-fuel
vehicle requirements established in part C of title II.
(5) Transportation control.--(A) Beginning 6 years
after the date of the enactment of the Clean Air Act
Amendments of 1990 and each third year thereafter, the
State shall submit a demonstration as to whether
current aggregate vehicle mileage, aggregate vehicle
emissions, congestion levels, and other relevant
parameters are consistent with those used for the
area's demonstration of attainment. Where such
parameters and emissions levels exceed the levels
projected for purposes of the area's attainment
demonstration, the State shall within 18 months develop
and submit a revision of the applicable implementation
plan that includes a transportation control measures
program consisting of measures from, but not limited
to, section 108(f) that will reduce emissions to levels
that are consistent with emission levels projected in
such demonstration. In considering such measures, the
State should ensure adequate access to downtown, other
commercial, and residential areas and should avoid
measures that increase or relocate emissions and
congestion rather than reduce them. Such revision shall
be developed in accordance with guidance issued by the
Administrator pursuant to section 108(e) and with the
requirements of section 174(b) and shall include
implementation and funding schedules that achieve
expeditious emissions reductions in accordance with
implementation plan projections.
(6) De minimis rule.--The new source review
provisions under this part shall ensure that increased
emissions of volatile organic compounds resulting from
any physical change in, or change in the method of
operation of, a stationary source located in the area
shall not be considered de minimis for purposes of
determining the applicability of the permit
requirements established by this Act unless the
increase in net emissions of such air pollutant from
such source does not exceed 25 tons when aggregated
with all other net increases in emissions from the
source over any period of 5 consecutive calendar years
which includes the calendar year in which such increase
occurred.
(7) Special rule for modifications of sources
emitting less than 100 tons.--In the case of any major
stationary source of volatile organic compounds located
in the area (other than a source which emits or has the
potential to emit 100 tons or more of volatile organic
compounds per year), whenever any change (as described
in section 111(a)(4)) at that source results in any
increase (other than a de minimis increase) in
emissions of volatile organic compounds from any
discrete operation, unit, or other pollutant emitting
activity at the source, such increase shall be
considered a modification for purposes of section
172(c)(5) and section 173(a), except that such increase
shall not be considered a modification for such
purposes if the owner or operator of the source elects
to offset the increase by a greater reduction in
emissions of volatile organic compounds concerned from
other operations, units, or activities within the
source at an internal offset ratio of at least 1.3 to
1. If the owner or operator does not make such
election, such change shall be considered a
modification for such purposes, but in applying section
173(a)(2) in the case of any such modification, the
best available control technology (BACT), as defined in
section 169, shall be substituted for the lowest
achievable emission rate (LAER). The Administrator
shall establish and publish policies and procedures for
implementing the provisions of this paragraph.
(8) Special rule for modifications of sources
emitting 100 tons or more.--In the case of any major
stationary source of volatile organic compounds located
in the area which emits or has the potential to emit
100 tons or more of volatile organic compounds per
year, whenever any change (as described in section
111(a)(4)) at that source results in any increase
(other than a de minimis increase) in emissions of
volatile organic compounds from any discrete operation,
unit, or other pollutant emitting activity at the
source, such increase shall be considered a
modification for purposes of section 172(c)(5) and
section 173(a), except that if the owner or operator of
the source elects to offset the increase by a greater
reduction in emissions of volatile organic compounds
from other operations, units, or activities within the
source at an internal offset ratio of at least 1.3 to
1, the requirements of section 173(a)(2) (concerning
the lowest achievable emission rate (LAER)) shall not
apply.
(9) Contingency provisions.--In addition to the
contingency provisions required under section
172(c)(9), the plan revision shall provide for the
implementation of specific measures to be undertaken if
the area fails to meet any applicable milestone. Such
measures shall be included in the plan revision as
contingency measures to take effect without further
action by the State or the Administrator upon a failure
by the State to meet the applicable milestone.
(10) General offset requirement.--For purposes of
satisfying the emission offset requirements of this
part, the ratio of total emission reductions of
volatile organic compounds to total increase emissions
of such air pollutant shall be at least 1.2 to 1.
Any reference to ``attainment date'' in subsection (b), which
is incorporated by reference into this subsection, shall refer
to the attainment date for serious areas.
(d) Severe Areas.--Each State in which all or part of a
Severe Area is located shall, with respect to the Severe Area,
make the submissions described under subsection (c) (relating
to Serious Areas), and shall also submit the revisions to the
applicable implementation plan (including the plan items)
described under this subsection. For any Severe Area, the terms
``major source'' and ``major stationary source'' include (in
addition to the sources described in section 302) any
stationary source or group of sources located within a
contiguous area and under common control that emits, or has the
potential to emit, at least 25 tons per year of volatile
organic compounds.
(1) Vehicle miles traveled.--(A) Within 2 years after
the date of enactment of the Clean Air Act Amendments
of 1990, the State shall submit a revision that
identifies and adopts specific enforceable
transportation control strategies and transportation
control measures to offset any growth in emissions from
growth in vehicle miles traveled or numbers of vehicle
trips in such area and to attain reduction in motor
vehicle emissions as necessary, in combination with
other emission reduction requirements of this subpart,
to comply with the requirements of subsection (b)(2)(B)
and (c)(2)(B) (pertaining to periodic emissions
reduction requirements). The State shall consider
measures specified in section 108(f), and choose from
among and implement such measures as necessary to
demonstrate attainment with the national ambient air
quality standards; in considering such measures, the
State should ensure adequate access to downtown, other
commercial, and residential areas and should avoid
measures that increase or relocate emissions and
congestion rather than reduce them.
(B) The State may also, in its discretion, submit a
revision at any time requiring employers in such area
to implement programs to reduce work-related vehicle
trips and miles travelled by employees. Such revision
shall be developed in accordance with guidance issued
by the Administrator pursuant to section 108(f) and may
require that employers in such area increase average
passenger occupancy per vehicle in commuting trips
between home and the workplace during peak travel
periods. The guidance of the Administrator may specify
average vehicle occupancy rates which vary for
locations within a nonattainment area (suburban, center
city, business district) or among nonattainment areas
reflecting existing occupancy rates and the
availability of high occupancy modes. Any State
required to submit a revision under this subparagraph
(as in effect before the date of enactment of this
sentence) containing provisions requiring employers to
reduce work-related vehicle trips and miles travelled
by employees may, in accordance with State law, remove
such provisions from the implementation plan, or
withdraw its submission, if the State notifies the
Administrator, in writing, that the State has
undertaken, or will undertake, one or more alternative
methods that will achieve emission reductions
equivalent to those to be achieved by the removed or
withdrawn provisions.
(2) Offset requirement.--For purposes of satisfying
the offset requirements pursuant to this part, the
ratio of total emission reductions of VOCs to total
increased emissions of such air pollutant shall be at
least 1.3 to 1, except that if the State plan requires
all existing major sources in the nonattainment area to
use best available control technology (as defined in
section 169(3)) for the control of volatile organic
compounds, the ratio shall be at least 1.2 to 1.
(3) Enforcement under section 185.--By December 31,
2000, the State shall submit a plan revision which
includes the provisions required under section 185.
Any reference to the term ``attainment date'' in subsection (b)
or (c), which is incorporated by reference into this subsection
(d), shall refer to the attainment date for Severe Areas.
(e) Extreme Areas.--Each State in which all or part of an
Extreme Area is located shall, with respect to the Extreme
Area, make the submissions described under subsection (d)
(relating to Severe Areas), and shall also submit the revisions
to the applicable implementation plan (including the plan
items) described under this subsection. [The provisions of
clause (ii) of subsection (c)(2)(B) (relating to reductions of
less than 3 percent), the provisions of paragaphs] The
provisions of paragraphs (6), (7) and (8) of subsection (c)
(relating to de minimus rule and modification of sources)[, and
the provisions of clause (ii) of subsection (b)(1)(A) (relating
to reductions of less than 15 percent)] shall not apply in the
case of an Extreme Area. For any Extreme Area, the terms
``major source'' and ``major stationary source'' includes (in
addition to the sources described in section 302) any
stationary source or group of sources located within a
contiguous area and under common control that emits, or has the
potential to emit, at least 10 tons per year of volatile
organic compounds.
(1) Offset requirement.--For purposes of satisfying
the offset requirements pursuant to this part, the
ratio of total emission reductions of VOCs to total
increased emissions of such air pollutant shall be at
least 1.5 to 1, except that if the State plan requires
all existing major sources in the nonattainment area to
use best available control technology (as defined in
section 169(3)) for the control of volatile organic
compounds, the ratio shall be at least 1.2 to 1.
(2) Modifications--Any change (as described in
section 111(a)(4)) at a major stationary source which
results in any increase in emissions from any discrete
operation, unit, or other pollutant emitting activity
at the source shall be considered a modification for
purposes of section 172(c)(5) and section 173(a),
except that for purposes of complying with the offset
requirement pursuant to section 173(a)(1), any such
increase shall not be considered a modification if the
owner or operator of the source elects to offset the
increase by a greater reduction in emissions of the air
pollutant concerned from other discrete operations,
units, or activities within the source at an internal
offset ratio of at least 1.3 to 1. The offset
requirements of this part shall not be applicable in
Extreme Areas to a modification of an existing source
if such modification consists of installation of
equipment required to comply with the applicable
implementation plan, permit, or this Act.
(3) Use of clean fuels or advanced control
technology.--For Extreme Areas, a plan revision shall
be submitted within 3 years after the date of the
enactment of the Clean Air Act Amendments of 1990 to
require, effective 8 years after such date, that each
new, modified, and existing electric utility and
industrial and commercial boiler which emits more than
25 tons per year of oxides of nitrogen--
(A) burn as its primary fuel natural gas,
methanol, or ethanol (or a comparably low
polluting fuel), or
(B) use advanced control technology (such as
catalytic control technology or other
comparably effective control methods) for
reduction of emissions of oxides of nitrogen.
For purposes of this subsection, the term ``primary
fuel'' means the fuel which is used 90 percent or more
of the operating time. This paragraph shall not apply
during any natural gas supply emergency (as defined in
title III of the Natural Gas Policy Act of 1978).
(4) Traffic control measures during heavy traffic
hours.--For Extreme Areas, each implementation plan
revision under this subsection may contain provisions
establishing traffic control measures applicable during
heavy traffic hours to reduce the use of high polluting
vehicles or heavy-duty vehicles, notwithstanding any
other provision of law.
(5) New technologies.--The Administrator may, in
accordance with section 110, approve provisions of an
implementation plan for an Extreme Area which
anticipate development of new control techniques or
improvement of existing control technologies, and an
attainment demonstration based on such provisions[, if
the State demonstrates to the satisfaction of the
Administrator that--]
[(A) such provisions are not necessary to
achieve the incremental emission reductions
required during the first 10 years after the
date of the enactment of the Clean Air Act
Amendments of 1990; and
[(B) the State has submitted enforceable
commitments to develop and adopt contingency
measures to be implemented as set forth herein
if the anticipated technologies do not achieve
planned reductions.]
[Such contingency measures shall be submitted to the
Administrator no later than 3 years before proposed
implementation of the plan provisions and approved or
disapproved by the Administrator in accordance with
section 110. The contingency measures shall be adequate
to produce emission reductions sufficient, in
conjunction with other approved plan provisions, to
achieve the periodic emission reductions required by
subsection (b)(1) or (c)(2) and attainment by the
applicable dates. If the Administrator determines that
an Extreme Area has failed to achieve an emission
reduction requirement set forth in subsection (b)(1) or
(c)(2), and that such failure is due in whole or part
to an inability to fully implement provisions approved
pursuant to this subsection, the Administrator shall
require the State to implement the contingency measures
to the extent necessary to assure compliance with
subsections (b)(1) and (c)(2).].
Any reference to the term ``attainment date'' in subsection
(b), (c), or (d) which is incorporated by reference into this
subsection, shall refer to the attainment date for Extreme
Areas.
(f) NOxRequirements.--(1) The plan provisions
required under this subpart for major stationary sources of
volatile organic compounds shall also apply to major stationary
sources (as defined in section 302 and subsections (c), (d),
and (e) of this section) of oxides of nitrogen. This subsection
shall not apply in the case of oxides of nitrogen for those
sources for which the Administrator determines (when the
Administrator approves a plan or plan revision) that net air
quality benefits are greater in the absence of reductions of
oxides of nitrogen from the sources concerned. This subsection
shall also not apply in the case of oxides of nitrogen for--
(A) nonattainment areas not within an ozone transport
region under section 184 if the Administrator
determines (when the Administrator approves a plan or
plan revision) that additional reductions of oxides of
nitrogen would not contribute to attainment of the
national ambient air quality standard for ozone in the
area, or
(B) nonattainment areas within such an ozone
transport region if the Administrator determines (when
the Administrator approves a plan or plan revision)
that additional reductions of oxides of nitrogen would
not produce net ozone air quality benefits in such
region.
The Administrator shall, in the Administrator's determinations,
consider the study required under section 185B.
(2)(A) If the Administrator determines that excess reductions
in emissions of NOx would be achieved under
paragraph (1), the Administrator may limit the application of
paragraph (1) to the extent necessary to avoid achieving such
excess reductions.
(B) For purposes of this paragraph, excess reductions in
emissions of NOx are emission reductions for which
the Administrator determines that net air quality benefits are
greater in the absence of such reductions. Alternatively, for
purposes of this paragraph, excess reductions in emissions of
NOx are, for--
(i) nonattainment areas not within an ozone transport
region under section 184, emission reductions that the
Administrator determines would not contribute to
attainment of the national ambient air quality standard
for ozone in the area, or
(ii) nonattainment areas within such ozone transport
region, emission reductions that the Administrator
determines would not produce net ozone air quality
benefits in such region.
(3) At any time after the final report under section 185B is
submitted to Congress, a person may petition the Administrator
for a determination under paragraph (1) or (2) with respect to
any nonattainment area or any ozone transport region under
section 184. The Administrator shall grant or deny such
petition within 6 months after its filing with the
Administrator.
(g) Milestones.--
(1) Reductions in emissions.--6 years after the date
of the enactment of the Clean Air Amendments of 1990
and at intervals of every 3 years thereafter, the State
shall determine whether each nonattainment area (other
than an area classified as Marginal or Moderate) has
achieved a reduction in emissions during the preceding
intervals equivalent to the total emission reductions
required to be achieved by the end of such interval
pursuant to subsection (b)(1) and the corresponding
requirements of subsections (c)(2) (B) and (C), (d),
and (e). Such reduction shall be referred to in this
section as an applicable milestone.
(2) Compliance demonstration.--For each nonattainment
area referred to in paragraph (1), not later than 90
days after the date on which an applicable milestone
occurs (not including an attainment date on which a
milestone occurs in cases where the standard has been
attained), each State in which all or part of such area
is located shall submit to the Administrator a
demonstration that the milestone has been met. A
demonstration under this paragraph shall be submitted
in such form and manner, and shall contain such
information and analysis, as the Administrator shall
require, by rule. The Administrator shall determine
whether or not a State's demonstration is adequate
within 90 days after the Administrator's receipt of a
demonstration which contains the information and
analysis required by the Administrator.
(3) Serious and severe areas; state election.--If a
State fails to submit a demonstration under paragraph
(2) for any Serious or Severe Area within the required
period or if the Administrator determines that the area
has not met any applicable milestone, the State shall
elect, within 90 days after such failure or
determination--
(A) to have the area reclassified to the next
higher classification,
(B) to implement specific additional measures
adequate, as determined by the Administrator,
to meet the next milestone as provided in the
applicable contingency plan, or
(C) to adopt an economic incentive program as
described in paragraph (4).
If the State makes an election under subparagraph (B),
the Administrator shall, within 90 days after the
election, review such plan and shall, if the
Administrator finds the contingency plan inadequate,
require further measures necessary to meet such
milestone. Once the State makes an election, it shall
be deemed accepted by the Administrator as meeting the
election requirement. If the State fails to make an
election required under this paragraph within the
required 90-day period or within 6 months thereafter,
the area shall be reclassified to the next higher
classification by operation of law at the expiration of
such 6-month period. Within 12 months after the date
required for the State to make an election, the State
shall submit a revision of the applicable
implementation plan for the area that meets the
requirements of this paragraph. The Administrator shall
review such plan revision and approve or disapprove the
revision within 9 months after the date of its
submission.
(4) Economic incentive program.--(A) An economic
incentive program under this paragraph shall be
consistent with rules published by the Administrator
and sufficient, in combination with other elements of
the State plan, to achieve the next milestone. The
State program may include a nondiscriminatory system,
consistent with applicable law regarding interstate
commerce, of State established emissions fees or a
system of marketable permits, or a system of State fees
on sale or manufacture of products the use of which
contributes to ozone formation, or any combination of
the foregoing or other similar measures. The program
may also include incentives and requirements to reduce
vehicle emissions and vehicle miles traveled in the
area, including any of the transportation control
measures identified in section 108(f).
(B) Within 2 years after the date of the enactment of
the Clean Air Act Amendments of 1990, the Administrator
shall publish rules for the programs to be adopted
pursuant to subparagraph (A). Such rules shall include
model plan provisions which may be adopted for reducing
emissions from permitted stationary sources, area
sources, and mobile sources. The guidelines shall
require that any revenues generated by the plan
provisions adopted pursuant to subparagraph (A) shall
be used by the State for any of the following:
(i) Providing incentives for achieving
emission reductions.
(ii) Providing assistance for the development
of innovative technologies for the control of
ozone air pollution and for the development of
lower-polluting solvents and surface coatings.
Such assistance shall not provide for the
payment of more than 75 percent of either the
costs of any project to develop such a
technology or the costs of development of a
lower-polluting solvent or surface coating.
(iii) Funding the administrative costs of
State programs under this Act. Not more than 50
percent of such revenues may be used for
purposes of this clause.
(5) Extreme areas.--If a State fails to submit a
demonstration under paragraph (2) for any Extreme Area
within the required period, or if the Administrator
determines that the area has not met any applicable
milestone, the State shall, within 9 months after such
failure or determination, submit a plan revision to
implement an economic incentive program which meets the
requirements of paragraph (4). The Administrator shall
review such plan revision and approve or disapprove the
revision within 9 months after the date of its
submission.
(h) Rural Transport Areas.--(1) Notwithstanding any other
provision of section 181 or this section, a State containing an
ozone nonattainment area that does not include, and is not
adjacent to, any part of a Metropolitan Statistical Area or,
where one exists, a Consolidated Metropolitan Statistical Area
(as defined by the United States Bureau of the Census), which
area is treated by the Administrator, in the Administrator's
discretion, as a rural transport area within the meaning of
paragraph (2), shall be treated by operation of law as
satisfying the requirements of this section if it makes the
submissions required under subsection (a) of this section
(relating to marginal areas).
(2) The Administrator may treat an ozone nonattainment area
as a rural transport area if the Administrator finds that
sources of VOC (and, where the Administrator determines
relevant, NOx) emissions within the area do not make
a significant contribution to the ozone concentrations measured
in the area or in other areas.
(i) Reclassified Areas.--Each State containing an ozone
nonattainment area reclassified under section 181(b)(2) shall
meet such requirements of subsections (b) through (d) of this
section as may be applicable to the area as reclassified,
according to the schedules prescribed in connection with such
requirements, except that the Administrator may adjust any
applicable deadlines (other than attainment dates) to the
extent such adjustment is necessary or appropriate to assure
consistency among the required submissions.
(j) Multi-State Ozone Nonattainment Areas.--
(1) Coordination among states.--Each State in which
there is located a portion of a single ozone
nonattainment area which covers more than one State
(hereinafter in this section referred to as a ``multi-
State ozone nonattainment area'') shall--
(A) take all reasonable steps to coordinate,
substantively and procedurally, the revisions
and implementation of State implementation
plans applicable to the nonattainment area
concerned; and
(B) use photochemical grid modeling or any
other analytical method determined by the
Administrator, in his discretion, to be at
least as effective.
The Administrator may not approve any revision of a
State implementation plan submitted under this part for
a State in which part of a multi-State ozone
nonattainment area is located if the plan revision for
that State fails to comply with the requirements of
this subsection.
(2) Failure to demonstrate attainment.--If any State
in which there is located a portion of a multi-State
ozone nonattainment area fails to provide a
demonstration of attainment of the national ambient air
quality standard for ozone in that portion within the
required period, the State may petition the
Administrator to make a finding that the State would
have been able to make such demonstration but for the
failure of one or more other States in which other
portions of the area are located to commit to the
implementation of all measures required under section
182 (relating to plan submissions and requirements for
ozone nonattainment areas). If the Administrator makes
such finding, the provisions of section 179 (relating
to sanctions) shall not apply, by reason of the failure
to make such demonstration, in the portion of the
multi-State ozone nonattainment area within the State
submitting such petition.
* * * * * * *
Subpart 4--Additional Provisions for Particulate Matter Nonattainment
Areas
* * * * * * *
SEC. 189. PLAN PROVISIONS AND SCHEDULES FOR PLAN SUBMISSIONS.
(a) Moderate Areas.--
(1) Plan provisions.--Each State in which all or part
of a Moderate Area is located shall submit, according
to the applicable schedule under paragraph (2), an
implementation plan that includes each of the
following:
(A) For the purpose of meeting the
requirements of section 172(c)(5), a permit
program providing that permits meeting the
requirements of section 173 are required for
the construction and operation of new and
modified major stationary sources of PM-10.
(B) Either (i) a demonstration (including air
quality modeling) that the plan will provide
for attainment by the applicable attainment
date; or (ii) a demonstration that attainment
by such date is impracticable.
(C) Provisions to assure that reasonably
available control measures for the control of
PM-10 shall be implemented no later than
December 10, 1993, or 4 years after designation
in the case of an area classified as moderate
after the date of the enactment of the Clean
Air Act Amendments of 1990.
(2) Schedule for plan submissions.--A State shall
submit the plan required under subparagraph (1) no
later than the following:
(A) Within 1 year of the date of the
enactment of the Clean Air Act Amendments of
1990, for areas designated nonattainment under
section 107(d)(4), except that the provision
required under subparagraph (1)(A) shall be
submitted no later than June 30, 1992.
(B) 18 months after the designation as
nonattainment, for those areas designated
nonattainment after the designations prescribed
under section 107(d)(4).
(b) Serious Areas.--
(1) Plan provisions.--In addition to the provisions
submitted to meet the requirements of paragraph (a)(1)
(relating to Moderate Areas), each State in which all
or part of a Serious Area is located shall submit an
implementation plan for such area that includes each of
the following:
(A) A demonstration (including air quality
modeling)--
(i) that the plan provides for
attainment of the PM-10 national
ambient air quality standard by the
applicable attainment date, or
(ii) for any area for which the State
is seeking, pursuant to section 188(e),
an extension of the attainment date
beyond the date set forth in section
188(c), that attainment by that date
would be impracticable, and that the
plan provides for attainment by the
most expeditious alternative date
practicable.
(B) Provisions to assure that the best
available control measures for the control of
PM-10 shall be implemented no later than 4
years after the date the area is classified (or
reclassified) as a Serious Area.
(2) Schedule for plan submissions.--A State shall
submit the demonstration required for an area under
paragraph (1)(A) no later than 4 years after
reclassification of the area to Serious, except that
for areas reclassified under section 188(b)(2), the
State shall submit the attainment demonstration within
18 months after reclassification to Serious. A State
shall submit the provisions described under paragraph
(1)(B) no later than 18 months after reclassification
of the area as a Serious Area.
(3) Major sources.--For any Serious Area, the terms
``major source'' and ``major stationary source''
include any stationary source or group of stationary
sources located within a contiguous area and under
common control that emits, or has the potential to
emit, at least 70 tons per year of PM-10.
(c) Milestones.--(1) Plan revisions demonstrating attainment
submitted to the Administrator for approval under this subpart
shall contain quantitative milestones which are to be achieved
every 3 years until the area is redesignated attainment, which
take into account technological achievability and economic
feasibility, and which demonstrate reasonable further progress,
as defined in section 171(1), toward attainment by the
applicable date.
(2) Not later than 90 days after the date on which a
milestone applicable to the area occurs, each State in which
all or part of such area is located shall submit to the
Administrator a demonstration that all measures in the plan
approved under this section have been implemented and that the
milestone has been met. A demonstration under this subsection
shall be submitted in such form and manner, and shall contain
such information and analysis, as the Administrator shall
require. The Administrator shall determine whether or not a
State's demonstration under this subsection is adequate within
90 days after the Administrator's receipt of a demonstration
which contains the information and analysis required by the
Administrator.
(3) If a State fails to submit a demonstration under
paragraph (2) with respect to a milestone within the required
period or if the Administrator determines that the area has not
met any applicable milestone, the Administrator shall require
the State, within 9 months after such failure or determination
to submit a plan revision that assures that the State will
achieve the next milestone (or attain the national ambient air
quality standard for PM-10, if there is no next milestone) by
the applicable date.
(d) Failure To Attain.--In the case of a Serious PM-10
nonattainment area in which the PM-10 standard is not attained
by the applicable attainment date, the State in which such area
is located shall, after notice and opportunity for public
comment, submit within 12 months after the applicable
attainment date, plan revisions which provide for attainment of
the PM-10 air quality standard and, from the date of such
submission until attainment, for an annual reduction in PM-10
or PM-10 precursor emissions within the area of not less than 5
percent of the amount of such emissions as reported in the most
recent inventory prepared for such area.
(e) PM-10 Precursors.--The control requirements applicable
under plans in effect under this part for major stationary
sources of PM-10 shall also apply to major stationary sources
of PM-10 precursors, except where the Administrator determines
that such sources do not contribute significantly to PM-10
levels which exceed the standard in the area. The Administrator
shall issue guidelines regarding the application of the
preceding sentence.
* * * * * * *
TITLE III--GENERAL
* * * * * * *
SEC. 319. AIR QUALITY MONITORING.
(a) In General.--After notice and opportunity for public
hearing, the Administrator shall promulgate regulations
establishing an air quality monitoring system throughout the
United States which--
(1) utilizes uniform air quality monitoring criteria
and methodology and measures such air quality according
to a uniform air quality index,
(2) provides for air quality monitoring stations in
major urban areas and other appropriate areas
throughout the United States to provide monitoring such
as will supplement (but not duplicate) air quality
monitoring carried out by the States required under any
applicable implementation plan,
(3) provides for daily analysis and reporting of air
quality based upon such uniform air quality index, and
(4) provides for recordkeeping with respect to such
monitoring data and for periodic analysis and reporting
to the general public by the Administrator with respect
to air quality based upon such data.
The operation of such air quality monitoring system may be
carried out by the Administrator or by such other departments,
agencies, or entities of the Federal Government (including the
National Weather Service) as the President may deem
appropriate. Any air quality monitoring system required under
any applicable implementation plan under section 110 shall, as
soon as practicable following promulgation of regulations under
this section, utilize the standard criteria and methodology,
and measure air quality according to the standard index,
established under such regulations.
(b) Air Quality Monitoring Data Influenced by Exceptional
Events.--
(1) Definition of exceptional event.--In this
section:
(A) In general.--The term ``exceptional
event'' means an event that--
(i) affects air quality;
(ii) is not reasonably controllable
or preventable;
(iii) is an event caused by human
activity that is unlikely to recur at a
particular location or a natural event;
and
(iv) is determined by the
Administrator through the process
established in the regulations
promulgated under paragraph (2) to be
an exceptional event.
(B) Exclusions.--In this subsection, the term
``exceptional event'' does not include--
[(i) stagnation of air masses or] (i)
(I) ordinarily occurring stagnation of
air masses or (II) meteorological
inversions; or
[(ii) a meteorological event
involving high temperatures or lack of
precipitation; or]
[(iii)] (ii) air pollution relating
to source noncompliance.
(2) Regulations.--
(A) Proposed regulations.--Not later than
March 1, 2006, after consultation with Federal
land managers and State air pollution control
agencies, the Administrator shall publish in
the Federal Register proposed regulations
governing the review and handling of air
quality monitoring data influenced by
exceptional events.
(B) Final regulations.--Not later than 1 year
after the date on which the Administrator
publishes proposed regulations under
subparagraph (A), and after providing an
opportunity for interested persons to make oral
presentations of views, data, and arguments
regarding the proposed regulations, the
Administrator shall promulgate final
regulations governing the review and handling
or air quality monitoring data influenced by an
exceptional event that are consistent with
paragraph (3).
(3) Principles and requirements.--
(A) Principles.--In promulgating regulations
under this section, the Administrator shall
follow--
(i) the principle that protection of
public health is the highest priority;
(ii) the principle that timely
information should be provided to the
public in any case in which the air
quality is unhealthy;
(iii) the principle that all ambient
air quality data should be included in
a timely manner, an appropriate Federal
air quality database that is accessible
to the public;
(iv) the principle that each State
must take necessary measures to
safeguard public health regardless of
the source of the air pollution; and
(v) the principle that air quality
data should be carefully screened to
ensure that events not likely to recur
are represented accurately in all
monitoring data and analyses.
(B) Requirements.--Regulations promulgated
under this section shall, at a minimum, provide
that--
(i) the occurrence of an exceptional
event must be demonstrated by reliable,
accurate data that is promptly produced
and provided by Federal, State, or
local government agencies;
(ii) a clear causal relationship must
exist between the measured exceedances
of a national ambient air quality
standard and the exceptional event to
demonstrate that the exceptional event
caused a specific air pollution
concentration at a particular air
quality monitoring location;
(iii) there is a public process for
determining whether an event is
exceptional; and
(iv) there are criteria and
procedures for the Governor of a State
to petition the Administrator to
exclude air quality monitoring data
that is directly due to exceptional
events from use in determinations by
the Administrator with respect to
exceedances or violations of the
national ambient air quality standards.
(4) Interim provision.--Until the effective date of a
regulation promulgated under paragraph (2), the
following guidance issued by the Administrator shall
continue to apply:
(A) Guidance on the identification and use of
air quality data affected by exceptional events
(July 1986).
(B) Areas affected by PM-10 natural events,
May 30, 1996.
(C) Appendices I, K, and N to part 50 of
title 40, Code of Federal Regulations.
* * * * * * *
DISSENTING VIEWS
The Clean Air Act (CAA) has driven important progress in
improving air quality and public health. The history of the CAA
continues to demonstrate the success of our nation's current
approaches and utilization of valuable tools for measuring air
quality.
House Republicans claim that the goal of H.R. 4775, the
``Ozone Standards Implementation Act of 2016'' is to facilitate
a more efficient implementation of the Environmental Protection
Agency's (EPA) National Ambient Air Quality Standards (NAAQS)
by states, and to provide states additional time to implement
the new ozone standards. This bill would undermine decades of
progress on cleaning up air pollution and protecting public
health from all criteria pollutants--not just ozone. But, H.R.
4775 is an irresponsible compilation of attacks that in reality
strikes directly at the heart of the CAA. It would cause
irreparable harm to public health and the environment.
ANALYSIS
The changes made to the CAA, included in H.R. 4775, would
delay the implementation of health-based standards, complicate
adoption and achievement of more stringent standards, and
impose inappropriate cost and technological feasibility
considerations on the standard-setting process. The bill
inserts consideration of technological feasibility into the
standard-setting process for NAAQS. Although the bill's
sponsors assert this would be a minor change, adding this
consideration would fundamentally alter the CAA in a manner
that would erode public health and environmental protections.
Considerations of cost and technological feasibility are--and
should remain--separate from the identification of the
appropriate standard to ensure the air we breathe is safe.
Costs and technological feasibility as well as other non-risk
factors are already considered in the selection of options for
attaining the necessary standard. We can continue to achieve
cleaner, healthier air through cost-effective means that allow
our economy to grow.
The bill fundamentally alters the CAA provisions that
ensure EPA's decisions to protect public health are informed by
the most up-to-date knowledge about air pollutants and their
health and environmental impacts. It would extend the NAAQS
review period from five to ten years. Currently, EPA must
review each NAAQS every five years and make revisions as
appropriate.\1\ Although EPA does not always meet the five-year
deadline, the five-year cycle does provide for routine
consideration of new scientific information and revisions to
NAAQS, if necessary. Although EPA is required to compile new
information and review current NAAQS every five years, the
Agency is not required to adjust NAAQS at every review. New
information is generated at a much faster pace than a decadal
review cycle would accommodate. Extending the deadline would
result in fewer reviews, and less up-to-date scientific
information supporting air quality decisions. The longer review
period would also result in much longer periods of exposure to
dangerous air pollutants in cases where scientific studies
demonstrate the need for stronger standards to protect public
health.
---------------------------------------------------------------------------
\1\Clean Air Act at Sec. 109(d)(1).
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In point of fact, H.R. 4775 does nothing to address the
real constraints that states and the EPA face in their efforts
to implement the new ozone standards--resources. The bill's
proponents claim they are simply giving states more time to
comply with the new ozone standard. But, that simply means that
people living in areas with poor air quality will continue to
breathe unhealthy air for a longer period of time. In addition,
a number of the provisions go beyond delaying the
implementation of the standard. They are designed to allow some
of the areas with the most severe air quality problems to avoid
compliance with the standard. For example, the bill exempts any
ozone non-attainment area classified as an ``Extreme Area''
from the requirement for a state, local, or tribal government
to apply additional control measures if its approved emission
reduction plan fails to make progress toward achieving the
ozone standard. And, the bill changes air quality monitoring
protocols in a manner that would result in under-reporting of
poor air quality conditions, allowing areas with poor air
quality to appear in compliance by designating their normal
cyclical weather conditions (e.g. heat and drought) as
exceptional events.
It is certainly true that state budgets are constrained and
many states rely on guidance and support from EPA in the
preparation of their implementation plans. And, there are areas
that have specific challenges which make attainment with air
quality standards more difficult to achieve. However, the CAA
provides flexibility for those areas while ensuring public
health protection progresses. We could do far more to support
states' efforts to control dangerous air pollution by providing
EPA with adequate resources to support state activities rather
than providing regulatory relief to polluters.
EPA'S REVISION TO THE NATIONAL AMBIENT AIR QUALITY STANDARDS FOR OZONE
On October 1, 2015, EPA issued a final rule tightening the
ozone NAAQS from 75 parts per billion (ppb) to 70 ppb.\2\ EPA
based its decision on the review of thousands of studies
showing ozone's effects on public health and welfare. The
revised standard is consistent with the recommendations of the
independent Clean Air Scientific Advisory Committee (CASAC),
which had concluded that the science supports a standard within
a range of 70 ppb down to 60 ppb. Ozone, also known as smog,
has a number of health impacts ranging from increased asthma
attacks cases of acute bronchitis in children to premature
death. Ozone also damages vegetation, including crops and
trees.
---------------------------------------------------------------------------
\2\U.S. Environmental Protection Agency (EPA), National Ambient Air
Quality Standards for Ozone, 80 Fed. Reg. 65292 (Oct. 26, 2015) (final
rule) (hereafter ``ozone NAAQS'').
---------------------------------------------------------------------------
OPPONENT'S CLAIMS ABOUT THE 2015 OZONE RULE
Critics of the proposed ozone NAAQS have raised a number of
concerns about the ozone rule regarding: the number of new
ozone non-attainment areas that will result from lowering the
standards; the impact of background ozone on compliance; the
impact on construction of new facilities; and the overall costs
of implementation. A number of these criticisms are not new.
They have been raised repeatedly with respect to air quality
standards. Yet, history demonstrates that many of these claims
ultimately prove to be exaggerated.
The rule's critics claim that more than 200 counties will
not be in attainment. However, these estimates do not account
for a number of existing federal rules that will help to reduce
ozone along with other targeted emissions. For instance, the
new Tier 3 standards for vehicles and fuels, the Cross State
Air Pollution Rule (CSAPR), and the New Source Performance
Standards for the Oil and Gas Industry all will help lower
ozone emissions, resulting in fewer non-attainment than many
previously projected. According to EPA, by 2025 only 14
counties are expected to exceed the 70 ppb standard. These
projections are far lower than the 213 counties with current
ozone levels above 70 ppb.\3\ In fact, these figures are based
on 2012-2014 air quality data. Final designations will likely
be made based on 2014-2016 data which will reflect some of the
federal measures discussed above, likely leading to even fewer
non-attainment areas.
---------------------------------------------------------------------------
\3\U.S. EPA, Ozone by The Numbers (Oct. 1, 2015) (online at
www.epa.gov/sites/production/files/2015-10/documents/20151001--
bynumbers.pdf).
---------------------------------------------------------------------------
Some stakeholders have voiced concerns about the impact of
``background ozone'' on their ability to meet the 70 ppb ozone
standard. ``Background ozone'' is ozone that results from
natural events such as wildfires or the breakdown of
hydrocarbons released by plants and soils. It also includes
man-made pollution from sources outside the U.S. However, the
CAA does not hold states responsible for these background
emissions. While EPA does anticipate that there may be a
limited number of areas where high ozone levels could be
attributed to background ozone, EPA analysis indicates that
background ozone is ``not the sole contributor to an exceedance
of the revised NAAQS'' and will not prevent areas from meeting
the revised 70 ppb standard.\4\
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\4\Id.
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Various stakeholders also have raised concerns about
projects with pending preconstruction permit applications and
the potential impact of a revised NAAQS.\5\ The CAA currently
requires major new or expanding stationary sources of air
pollution to obtain permits before they start construction to
ensure they will not significantly increase air pollution above
levels that are safe to breathe. The preconstruction permitting
provisions of the CAA achieve this by: (1) requiring new and
modified sources to use control technology to reduce their
emissions; and (2) to assess, and if necessary address, their
remaining air quality impacts. EPA addressed preconstruction
permit concerns in the final 2015 ozone NAAQS rule. The rule
grandfathered permit applications that were well along in the
permitting process, specifically permits that had been
determined to be complete on or before October 1, 2015, or for
which public notice of a draft permit or preliminary
determination had been published as of the effective date of
the revised standard. Sources eligible for grandfathering are
allowed to meet the requirements associated with the prior
ozone NAAQS rather than the revised standard.\6\
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\5\See, e.g., U.S. EPA, National Ambient Air Quality Standards for
Ozone, 80 Fed. Reg. 65292 at 65431 (Oct. 26, 2015) (final rule).
\6\U.S. EPA, National Ambient Air Quality Standards for Ozone, 80
Fed. Reg. 65292 at 65433 (Oct. 26, 2015) (final rule).
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Finally and predictably, critics claim the costs of the
rule will be too high and result in significant job economic
growth sacrifices. In July 2014, well before the ozone proposal
was issued, the National Association of Manufacturers (NAM)
issued a report claiming that the ozone standards would be the
most expensive rule ever issued and would reduce Gross Domestic
Product by up to $270 billion per year.\7\ NAM updated its
hastily prepared analysis in February 2015, to examine a 65 ppb
standard and reached a revised estimate of $140 billion per
year.\8\
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\7\National Association of Manufacturers, Assessing Impacts of a
Stricter National Ambient Air Quality Standard for Ozone, (Jul. 2014)
(online at www.nam.org/Issues/Energy-and-Environment/Ozone-Regulations/
NERA-NAM-Ozone-Full-Report-20140726/).
\8\National Association of Manufacturers, Economic Impacts of a 65
ppb National Ambient Air Quality Standard for Ozone, (Feb. 2015)
(online at www.nam.org/Issues/Energy-and-Environment/Ozone/Economic-
Impacts-of-a-65-ppb-NAAQS-for-Ozone-%28NERA%29.pdf).
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There are numerous problems with this study. The
Congressional Research Service has identified numerous issues
with the study that cause the costs to be inflated. These
include the use of outdated data from 2008 and 2010 regulatory
analyses; use of an incorrect baseline that does not account
for the effects of the Cross State Air Pollution Rule (CSPAR)
or the Clean Power Plan; and looking at only the most stringent
standard option of 65 ppb available to EPA--a stand which EPA
ultimately rejected.\9\
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\9\Congressional Research Service, Ozone Air Quality Standards:
EPA's 2015 Revision (Jun. 25, 2016) (R43092) (online at www.crs.gov/
pdfloader/R43092).
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Perhaps, most importantly, the study fails to include any
estimate of benefits. The entire purpose of EPA's clean air
rules is to realize public health and environmental benefits.
EPA's analysis shows that the health benefits of a 70 ppb ozone
standard will significantly outweigh compliance costs by
billions of dollars per year. EPA has estimated the cost of the
70 ppb ozone standard will be $1.4 billion in 2025, with $2.9-
$5.0 billion in benefits (excluding California). Although these
estimates may not legally be used in setting the standard, they
were reviewed and approved by the Office of Management and
Budget as part of EPA's Regulatory Impact Analysis.\10\
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\10\U.S. EPA, Regulatory Impact Analysis of the Final Revisions to
the National Ambient Air Quality Standards for Ground-Level Ozone
(Sept.2015) (online at www.regulations.gov/#!documentDetail;D=EPA-HQ-
OAR-2013-0169-0057).
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H.R. 4475: AN IRRESPONSIBLE, CYNICAL AND UNNECESSARY ATTACK ON THE
CLEAN AIR ACT
In conclusion, H.R. 4775 offers no constructive
improvements to Clean Air Act. It is designed to erode public
health and environmental protections in the guise of regulatory
relief. Poor air quality is a significant threat to human
health and the environment. Other nations are realizing now
what we learned long ago, that unregulated emission of
dangerous air pollutants is unsustainable. The Clean Air Act
has helped us to make dramatic improvements in air quality over
the past decades. Our economy has grown during this same period
demonstrating that we can have both healthy air and a vibrant
economy. H.R. 4775 is an unnecessary and dangerous bill that
should not become law. For the reasons stated above, we dissent
from the views contained in the Committee's report.
Frank Pallone, Jr.,
Ranking Member.
Bobby L. Rush,
Ranking Member, Subcommittee
on Energy and Power.