I 

108TH CONGRESS 

1ST SESSION H. R. 3133

To preserve the ability of States, Indian tribes, municipalities, and air pollution control agencies to protect the public health and the environment 

by affording them discretion as to whether or not to implement new 

source review revisions promulgated by the Environmental Protection 

Agency on August 27, 2003. 

IN THE HOUSE OF REPRESENTATIVES 

SEPTEMBER 17, 2003

Mr. UDALL of Colorado (for himself and Mr. SHAYS) introduced the following 

bill; which was referred to the Committee on Energy and Commerce 

A BILL

To preserve the ability of States, Indian tribes, municipalities, and air pollution control agencies to protect the 

public health and the environment by affording them 

discretion as to whether or not to implement new source 

review revisions promulgated by the Environmental Protection Agency on August 27, 2003.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Freedom to Establish 

5 State High Air Quality (FrESH AIR Quality) Act’’. 
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1 SEC. 2. FINDINGS AND PURPOSE. 

2 (a) FINDINGS.—The Congress finds that—

3 (1) on August 27, 2003, the United States En4 vironmental Protection Agency (EPA) finalized revi5 sions to the new source review regulations under the 

6 Clean Air Act excluding from review equipment 

7 changes involving fixed capital costs and repair costs 

8 that are 20 percent or less of the total replacement 

9 value of the affected process unit; 

10 (2) there are serious concerns about the ex11 pected air pollution consequences of the revisions to 

12 the new source review regulations and it is estimated 

13 that 17,000 industrial facilities nationwide are af14 fected by the regulatory revisions; 

15 (3) in a report dated August 22, 2003, the 

16 United States General Accounting Office found that 

17 EPA has relied on anecdotal information from the 

18 industries most affected by the new source review 

19 program to support its conclusion that the program 

20 discouraged some energy efficiency projects because 

21 the Agency lacked more comprehensive data; 

22 (4) the National Academy of Public Adminis23 trators, an independent, nonpartisan organization 

24 chartered by Congress to improve government, 

25 issued an April 21, 2003 report examining the new 

26 source review program and recommended that ef-
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1 forts to reform the program should ensure both that 

2 new source review provides enhanced protection of 

3 health and the environment and should carefully 

4 avoid creating even broader loopholes or more ex5 emptions from the program’s requirements; 

6 (5) the EPA’s August 27, 2003 final revisions 

7 to the new source review regulations require adop8 tion by states, Indian tribes or municipalities having 

9 approved new source review programs within three 

10 years and will automatically apply within 60 days of 

11 publication of the final revisions in states, Indian 

12 tribes and municipalities not having an approved 

13 program; 

14 (6) the State and Territorial Air Pollution Pro15 gram Administrators and the Association of Local 

16 Air Pollution Control Officials have stated that 

17 states and local governments should be allowed to 

18 make their own choices regarding the adoption of 

19 EPA’s revisions to the new source review program 

20 based upon the state’s or locality’s own judgment of 

21 what will best serve its local air quality needs; and 

22 (7) States, Indian tribes, municipalities, and air 

23 pollution control agencies should not be required to 

24 implement EPA’s August 27, 2003 new source re25 view revisions if they consider that the result would 
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1 be to lessen the protection of public health or the en2 vironment. 

3 (b) PURPOSE.—The purpose of this Act is to preserve 

4 the ability of states, Indian tribes, municipalities, and air 

5 pollution control agencies to protect the public health and 

6 the environment by affording them discretion as to wheth7 er or not to implement the August 27, 2003 new source 

8 review revisions. 

9 SEC. 3. PRESERVATION OF STATE AND TRIBAL AUTHORITY. 

10 (a) PROHIBITIONS.—(1) No State, Indian tribe, mu11 nicipality, or air pollution control agency shall be required 

12 to implement or to have implemented in their jurisdiction, 

13 the Environmental Protection Agency’s August 27, 2003 

14 new source review revisions. 

15 (2) No revision of a Federal implementation plan 

16 pursuant to the August 27, 2003 new source review revi17 sions shall take effect until the affected State, Indian 

18 tribe, municipality, or air pollution control agency notifies 

19 the Environmental Protection Agency that it agrees to 

20 such revision. 

21 (3) Failure of a State, Indian tribe, municipality, or 

22 air pollution control agency to implement the August 27, 

23 2003 new source review revisions, or to consent to revision 

24 of a Federal implementation plan pursuant to the August 

25 27, 2003 new source review revisions, shall not subject 
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1 such State, tribe, municipality, or agency to sanctions, the 

2 revocation of an approved state implementation plan 

3 under the Clean Air Act, or imposition of a new or revised 

4 Federal implementation plan under the Clean Air Act. 

5 (b) DEFINITIONS.—For purposes of this Act: 

6 (1) The terms ‘‘air pollution control agency’’, 

7 ‘‘State’’, ‘‘municipality’’, and ‘‘Indian tribe’’ shall 

8 have the same meaning as provided in subsections 

9 (b), (d), (f), and (r) of section 302 of the Clean Air 

10 Act (42 U.S.C. 7602(b), (d), (f), and (r)). 

11 (2) The term ‘‘August 27, 2003 new source re12 view revisions’’ means the exclusion to the new 

13 source review requirements under the Clean Air Act 

14 entitled ‘‘Prevention of Significant Deterioration 

15 (PSD) and Nonattainment New Source Review 

16 (NSR): Equipment Replacement Provision of the 

17 Routine Maintenance, Repair and Replacement Ex18 clusion’’ promulgated by the Environmental Protec19 tion Agency on August 27, 2003. 

20 (3) The term ‘‘Federal implementation plan’’ 

21 shall have the same meaning as provided in sub22 section (c)(1) of section 110 of the Clean Air Act 

23 (42 U.S.C. 7410(c)(1)) and subsection (y) of section 

24 302 of the Clean Air Act (42 U.S.C. 7602(y)). 
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1 (c) EFFECT OF ACT.—Nothing in this Act affects the 

2 retention of State authority under section 116 of the Clean 

3 Air Act (42 U.S.C. 7416).

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