39–006 

113TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 113–488 

PROMOTING NEW MANUFACTURING ACT 

JUNE 23, 2014.—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. 4795] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Energy and Commerce, to whom was referred 

the bill (H.R. 4795) to promote new manufacturing in the United 

States by providing for greater transparency and timeliness in obtaining necessary permits, and for other purposes, having considered the same, report favorably thereon without amendment and 

recommend that the bill do pass. 

CONTENTS 

Purpose and Summary ............................................................................................ 2 

Background and Need for Legislation .................................................................... 2 

Hearings ................................................................................................................... 7 

Committee Consideration ........................................................................................ 7 

Committee Votes ...................................................................................................... 8 

Committee Oversight Findings ............................................................................... 12 

Statement of General Performance Goals and Objectives .................................... 12 

New Budget Authority, Entitlement Authority, and Tax Expenditures ............. 12 

Earmark, Limited Tax Benefits, and Limited Tariff Benefits ............................. 12 

Committee Cost Estimate ....................................................................................... 12 

Congressional Budget Office Estimate ................................................................... 12 

Federal Mandates Statement ................................................................................. 14 

Duplication of Federal Programs ............................................................................ 14 

Disclosure of Directed Rule Makings ..................................................................... 14 

Advisory Committee Statement .............................................................................. 14 

Applicability to Legislative Branch ........................................................................ 14 

Section-by-Section Analysis of the Legislation ...................................................... 14 

Changes in Existing Law Made by the Bill, as Reported ..................................... 15 

Minority, Additional, or Dissenting Views ............................................................ 16 


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1The draft legislation applies only to ‘‘Major NSR’’ permits for major stationary sources. The 

draft legislation does not apply to the ‘‘Minor NSR’’ program administered by States. 2 EPA has established standards for six criteria pollutants: carbon monoxide, lead, ozone, particulate matter (PM2.5/PM10), nitrogen dioxide (NO2), and sulfur dioxide (SO2). See National 

Ambient Air Quality Standards (NAAQS) available at http://www.epa.gov/air/criteria.html. 3The PSD and NNSR programs are contained in parts C and D, respectively, of Title I of the 

CAA. See CAA Part C of Title I, §§ 160–169, 42 U.S.C. §§ 7470–7479 (PSD); CAA Part D of Title 

I, §§ 171–193, 42 U.S.C. §§ 7501–7515 (NNSR). For applicable federal regulations, see 40 CFR 

51.165, 51.166, 52.21, 52.24 and part 51, Appendices S and W. 4The PSD program, which applies to criteria pollutants in areas in compliance with the 

NAAQS, as well as certain non-criteria pollutants regulated by EPA that do not have a NAAQS 

(see 40 CFR 52.21(a)(23)), requires installation of ‘‘Best Available Control Technology’’ (BACT) 

technologies, based on a case-by-case determination and taking into account cost and other factors. See Prevention of Significant Deterioration (PSD) Basic Information available at http:// 

www.epa.gov/NSR/psd.html. The NNSR program, which applies to criteria pollutants in areas 

PURPOSE AND SUMMARY

H.R. 4795, the ‘‘Promoting New Manufacturing Act,’’ was introduced by Rep. Steve Scalise (R–LA) on May 30, 2014. The bill addresses preconstruction permits required under the Clean Air Act 

(CAA) for major stationary sources, and would require the Administrator of the Environmental Protection Agency (EPA) to take the 

following actions: • To publish information regarding the estimated number of 

permits issued annually and timelines for making final permit 

decisions; • When establishing new or revised air quality standards affecting the permitting process, to issue implementing guidance 

and regulations at the same time; and, • To report annually to Congress on actions being undertaken by the agency to expedite the processing of permit applications. 

BACKGROUND AND NEED FOR LEGISLATION

In his State of the Union speech this year, President Obama 

highlighted new manufacturing projects related to America’s abundant energy supplies, stating that businesses ‘‘plan to invest almost 

$100 billion in new factories that use natural gas.’’ He further stated that he would ‘‘cut red tape to help [S]tates get those factories 

built.’’ 

H.R. 4795 seeks to ensure these new manufacturing facilities will 

be built by improving the process for obtaining air permits required 

under the federal CAA. In particular, the bill addresses permits 

under the CAA’s ‘‘New Source Review’’ (NSR) provisions that require that new or modified facilities obtain a preconstruction permit before commencing construction and install emissions control 

equipment as a condition of the permit. 

Preconstruction permits for a new major stationary source, or a 

major modification of an existing major stationary source, are 

issued under two permitting programs.1 The ‘‘Prevention of Significant Deterioration’’ (PSD) program applies in ‘‘attainment’’ areas 

where the air quality meets national ambient air quality standards 

(NAAQS),2 or cannot be classified as either in ‘‘attainment’’ or 

‘‘nonattainment’’ with the NAAQS. The ‘‘Nonattainment NSR’’ 

(NNSR) program applies in areas that are not in attainment with 

the NAAQS.3 Because the NSR requirements are pollutant-specific, 

a preconstruction permit application may require both PSD and 

NNSR reviews. Collectively, the EPA refers to the PSD and NNSR 

programs as the ‘‘major NSR program.’’ 4


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that are out of compliance with the NAAQS, includes more stringent requirements, including 

installing ‘‘Lowest Achievable Emissions Rate’’ (LAER) technologies without taking into account 

costs and other factors, obtaining emissions offsets and achieving a net air quality benefit, and 

an alternatives analysis. See Nonattainment NSR Basic Information available at http:// 

www.epa.gov/nsr/naa.html. 5 In the majority of States, the States have developed NSR requirements and procedures that 

are defined and codified in a State Implementation Plan (SIP) approved by EPA. Other States 

rely on EPA’s NSR program, and in these States, EPA has delegated authority on behalf of the 

agency (delegated States). In still other States, EPA may be the permitting authority. See, e.g. 

‘‘Where You Live’’ available at http://www.epa.gov/nsr/where.html. 6See ‘‘RACT/BACT/LAER Clearinghouse’’ available at http://cfpub.epa.gov/rblc/. EPA estimates that the database currently contains information for approximately 50 percent of the 

major NSR permits. See EPA Technical Assistance available at http://docs.house.gov/meetings/ 

IF/IF03/20140528/102284/HMKP-113-IF03-20140528-SD003.pdf. In its annual Budget Justification, the EPA reports the percentage of major NSR permits within one year. See, e.g. U.S. 

EPA Fiscal Year 2015 Justification of Appropriation Estimates available at http:// 

nepis.epa.gov/Exe/ZyPDF.cgi/P100I0WA.PDF?Dockey=P100I0WA.PDF, at pp. 224, 829. 7See, e.g. EPA Oct. 15, 2012 Memo entitled ‘‘Timely Processing of Prevention of Significant 

Deterioration (PSD) permits when EPA or PSD-Delegated Air Agency Issues the Permit’’ available at http://www.epa.gov/region7/air/nsr/nsrmemos/timely.pdf (summarizing ‘‘best practices 

and other recommended tools to foster timely and consistent permit processing’’). 8See U.S. EPA Fiscal Year 2015 Justification of Appropriation Estimates available at http:// 

nepis.epa.gov/Exe/ZyPDF.cgi/P100I0WA.PDF?Dockey=P100I0WA.PDF, at pp. 224, 829. 

9The hearing was held on May 21, 2014 before the Energy and Power Subcommittee of the 

Committee on Energy and Commerce. 

Under the major NSR program, EPA establishes the basic permitting requirements through federal regulations. Although the 

majority of major NSR permits are issued by State and local permitting authorities, EPA also may be the permitting authority in 

certain States.5 In instances where the EPA is not the permitting 

authority, EPA may review and submit comments on draft permits 

proposed by State or local permitting authorities. The agency maintains a database that tracks information relating to major source 

permits issued by the EPA Regional Offices and by State and local 

air agencies.6

By statute, a decision on a PSD permit application is required to 

be made within one year of the filing of a completed application. 

See CAA 165(c), 42 U.S.C. 7454(c). In practice, however, the permitting process can take significantly longer.7 EPA has estimated 

that during the years 2008 through 2012, the percentage of major 

NSR permits issued within one year of receiving a completed permit application ranged from 46 percent to 80 percent depending 

upon the year.8

Pending manufacturing projects and permitting challenges 

There are currently tens of billions of dollars in potential new 

manufacturing projects that have been announced, largely due to 

America’s abundant energy supplies. 

At the legislative hearing on the discussion draft of H.R. 4795,9

Lorraine Krupa Gershman, Director of Regulatory and Technical 

Affairs with the American Chemistry Council (ACC), testified that 

‘‘America’s chemical industry is undergoing a historic expansion 

made possible by abundant, affordable supplies of natural gas and 

natural gas liquids from shale formations.’’ She further testified 

that: 

[a]s of this week, 177 chemical industry projects, valued at 

$112 billion in potential new U.S. investment, have been 

announced. Fully 62 percent of this is foreign direct investment. Within 10 years, the new investments could generate tens of billions of dollars in new chemical industry 


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10The chemical products to be produced are used in many everyday products, including food 

packaging, film, trash bags, diapers, toys, housewares, window frames, clothing, detergents carpets, home furnishings and apparel, paints, electronics, and gasoline. See ACC, May 2013, 

‘‘Shale Gas, Competiveness, and New US Chemical Industry Investment: An Analysis Based on 

Announced Projects,’’ Appendix 4 available at http://chemistrytoenergy.com/sites/ 

chemistrytoenergy.com/files/shale-gas-full-study.pdf. 11 A June 2014 report recently concluded that, despite favorable economics, many new manufacturing projects in the chemical industry are being delayed for years due, in part, to ‘‘a lengthy 

and uncertain permitting process.’’ See ‘‘Unlocking the economic potential of North America’s energy resources,’’ June 2014, Goldman Sachs Global Markets Institute available at http:// 

www.goldmansachs.com/our-thinking/our-conferences/north-american-energy-summit/ 

unlocking-the-economic-potential-of-north-americas.pdf. 12See, e.g. EPA Oct. 15, 2012 Memo, supra (new or revised NAAQs ‘‘apply to any final permit 

issued after the effective dates of the requirements unless the EPA has provided for 

grandfathering of the specific requirements for applications pending on the effective date of the 

new requirement’’); see also April 1, 2010 Memo available at http://www.epa.gov/region7/air/ 

nsr/nsrmemos/psdnaaqs.pdf (‘‘EPA generally interprets the CAA and EPA’s PSD permitting 

exports, and hundreds of thousands of permanent new 

jobs.10

Additionally, Ross Eisenberg, Vice President, Energy and Resources Policy, National Association of Manufacturers, testified 

that ‘‘the boom in domestic energy production is driving major new 

investment in manufacturing, and contributing to increased U.S. 

competitiveness around the world.’’ Further, ‘‘for manufacturers, 

this could mean as many as one million new jobs by 2025 as we 

build new iron, steel, cement, fertilizer, chemicals, aluminum, plastics, and many other manufacturing facilities, as well as the products that are made from these materials, so the future is good.’’ 

While there are billions of dollars in planned new manufacturing 

projects in the United States, they face regulatory uncertainty and 

potential delays in the permitting process. At the May 21, 2014 

hearing, ACC’s Director of Regulatory and Technical Affairs, Lorraine Gershman summarized these challenges, stating: 

All of these projects must undergo a lengthy and complex environmental permitting process, filled with challenges that could derail the investments. Problems include 

uncertainty as to the schedule and process for obtaining a 

final pre-construction permit, and a requirement that companies use emission modeling programs that cannot adequately accommodate site specific data. Once a project is 

significantly delayed, the project can be scrapped, and 

companies make plans to proceed elsewhere. 

Similarly, Ken Weiss, Managing Director for Global Air Services 

with Environmental Resources Management (ERM), testified that 

‘‘[c]ompanies seeking to execute capital projects need to be able to 

develop realistic and predictable project timelines’’ so that ‘‘equipment can be designed, procured, installed, and brought online when 

expected, and also support investment decisions.’’ Currently, however, he testified that there can be significant delays: ‘‘We routinely 

advise clients that obtaining a PSD permit can take anywhere from 

1 to 3 years, and that a minimum of 12 to 18 months need to be 

allowed in the project schedule.’’ 11

One of the most challenging aspects of the permitting process can 

be new or changing regulatory requirements, including new or revised NAAQS. Such new or revised NAAQS apply to 

preconstruction permit applications as soon as the new or revised 

standards become effective, except in limited circumstances.12 At 


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program regulations to require that each final PSD decision reflect consideration of any NAAQS 

in effect at the time the agency makes a final determination on a pending application’’). 13For example, EPA published a revised standard for fine particulate matter on January 15, 

2013 (see National Ambient Air Quality Standards for Particulate Matter Final Rule, 78 Fed. 

Reg. 3086 ((Jan. 15, 2013)), but has yet to issue final implementing regulations and guidance. 

Similarly, for its revised ozone standards issued in 2008, the agency did not propose implementing regulations until 2013. See Implementation of the 2008 National Ambient Air Quality 

Standards for Ozone: State Implementation Plan Requirements, 78 Fed. Reg. 34178 (June 6, 

2013). 14 Additionally, she testified that even as to earlier issued NAAQS: 

EPA is still working to implement some of these standards that they have put in place, with 

the unintended consequences of not having the models available, or not having monitoring available to make the designations. Areas that are in limbo between standards do not necessarily 

know how to proceed. This holds up permits. A lot of these projects come with a substantial 

amount of financing attached. This financing is not available indefinitely, and if these permits 

aren’t issued, there are times where the financing will disappear, and the projects will therefore 

not go forward. 15See EPA Oct. 15, 2012 Memo, supra (‘‘EAB review historically has taken an average of 5 

months from the time a petition is filed to the time the EAB issued its decision in the matter’’). 

The EAB has a Standing Order giving priority to NSR permit appeals. See EAB Revised Order 

Government Petitions for Review of Clean Air Act New Source Review Permits filed March 27, 

2013. 

the same time, EPA’s implementing regulations and guidance for 

how to comply with the new or revised NAAQS may be significantly delayed.13

At the May 21, 2014 legislative hearing, witnesses addressed the 

potential for permitting delays when EPA changes NAAQS and 

fails to issue timely implementing regulations and guidance. ACC’s 

Director of Regulatory and Technical Affairs, Lorraine Gershman 

testified: ‘‘Lacking clear direction from EPA, State permitting agencies and manufacturing facilities have, at times, been left confused 

about the requirements.’’ 14 Similarly, Mr. Weiss testified: ‘‘Guidance is necessary, as many technical issues must be addressed in 

determining how to conduct the analyses that can show compliance 

with the ambient air quality standards. This is particularly important, as EPA is constantly updating the ambient air quality standards.’’ He cited to various examples of project delays caused by the 

lack of guidance accompanying new, more stringent air quality 

standards. 

For certain preconstruction permits, an additional source of delay 

in the permitting process may be administrative appeals to the 

EPA’s Environmental Appeals Board (EAB). In particular, for PSD 

permits issued by EPA or delegated States, there is the potential 

for further delays during the pendency of any appeal to the EAB. 

EPA has estimated that the average time for resolution of such appeals is 5 months.15

At the May 21, 2014 legislative hearing, ACC’s Director of Regulatory and Technical Affairs, Lorraine Gershman, testified that the 

bill ‘‘represents a step towards a timely, efficient and transparent 

regulatory process.’’ NAM’s Vice President for Energy and Resources Policy, Ross Eisenberg, testified that the bill ‘‘takes a pragmatic approach to this very complex issue.’’ ERM’s Managing Partner for Global Air Services, Ken Weiss, whose company has extensive experience in the permitting process, testified that ‘‘[t]he legislation will remove much uncertainty, and related schedule delays 

from the air emissions permitting process for major capital 

projects, and help ensure continued growth in manufacturing in the 

United States.’’ The President and Chief Executive Officer of the 

Small Business & Entrepreneurship Council, Karen Kerrigan, testified that ‘‘Provisions that require the EPA to better monitor, 

make public, and report on the timing of permits, and to provide 


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16See EPA Technical Assistance available at http://docs.house.gov/meetings/IF/IF03/ 

20140528/102284/HMKP-113-IF03-20140528-SD003.pdf. 

timely and concurrent guidance and rules about how to comply 

with new or revised air quality standards, will establish greater 

clarity and certainty for businesses and investors.’’ 

What the Act Will Do 

H.R. 4795 would provide for the following: 

Permitting Dashboard: To provide more transparency regarding the 

preconstruction permit process, the bill directs the EPA Administrator to publish on the agency’s website estimates of the following 

information: 1) the total number of major NSR permits issued annually; 2) the percentage of such permits issued within one year 

after the date of filing of a completed permit application; and 3) the 

average length of time for the EPA’s EAB to issue final decisions 

on petitions appealing permit decisions. In preparing the report, 

EPA is not required to seek additional information from States and 

local agencies beyond the information already being voluntarily 

provided to the agency’s central permitting database. 

Timely Rules and Guidance: To ensure timely guidance regarding 

permitting requirements, the bill requires that if the EPA Administrator establishes or revises a national ambient air quality standard, the agency publish implementing regulations and guidance at 

the same time, including information regarding the submittal and 

consideration of preconstruction permit applications. In terms of 

the information included in the regulations and guidance, the Administrator has flexibility to include such information as the Administrator determines to be necessary and appropriate to assist 

States, permitting authorities and permitting applicants. 

Report to Congress: To promote timely review of permit applications, the bill directs the EPA Administrator to report annually on 

actions undertaken by the agency to expedite the permitting process. In preparing the report, EPA is not required to seek additional 

information from States and local agencies beyond the information 

already being voluntarily provided to the agency’s central permitting database. 

Additional considerations 

At the legislative hearing, and in technical assistance comments 

provided by the EPA on May 27, 2014,16 concerns were raised that 

section 3(b) of the bill, which requires that EPA issue concurrent 

implementing regulations and guidance for new or revised air quality standards, could create a ‘‘loophole’’ or ‘‘amnesty’’ for new facilities by exempting them from the obligation to install stringent control technologies. The intent of section 3(b) is to ensure that EPA 

will be accountable when it issues new air quality standards, and 

that regulated entities will have the guidance they need to comply 

with the new standards when the new standards become effective, 

and will not be subject to permit delays. 

The Committee notes that under the bill, the only circumstance 

under the bill in which a new or revised air quality standard would 

not apply to a pending permit application is if EPA failed to issue 

timely guidance relating to the permitting process. Under H.R. 

4795, even if EPA fails to provide such guidance, the bill expressly 


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17See ‘‘Where You Live’’ (‘‘States may develop unique NSR requirements and procedures tailored for their air quality needs of each area as long as the program is at least as stringent 

as EPA’s requirements.’’) available at http://www.epa.gov/nsr/where.html. 

provides that nothing in the bill changes the obligation of new facilities to install ‘‘best available control technology’’ in attainment 

areas, and the ‘‘lowest achievable emissions rate’’ technology in 

nonattainment areas. As a practical matter, it is notable that EPA 

itself ‘‘grandfathers’’ in certain preconstruction permit applications, 

as it did when the agency issued its most recent revisions to its 

particulate matter standards in 2012, to avoid delaying or derailing 

projects. 

At the legislative hearing, and in a June 5, 2014 letter from the 

California Air Resources Board, concerns also were raised that section 3(b) of the bill would prohibit States or local permitting authorities from applying a new or revised NAAQS if EPA failed to 

issue concurrent implementing regulations and guidance. As noted 

above, the intent of section 3(b) is to ensure that EPA is accountable when issuing new federal air quality standards and provides 

timely guidance to permit applicants and permitting authorities. 

Under the NSR program, nothing precludes States or local permitting authorities from imposing more stringent requirements pursuant to State or local law than the federal standards established by 

EPA.17 Accordingly, if a State or local permitting authority wanted 

to apply a new or revised NAAQS even in the absence of EPA implementing regulations and guidance, H.R. 4795 would not prevent 

such an approach. 

Supporters of the legislation 

Supporters include the American Chemistry Council, National 

Association of Manufacturers, Small Business & Entrepreneurship 

Council, U.S. Chamber of Commerce, and the Industrial Energy 

Consumers of America. 

HEARINGS

The Subcommittee held a hearing on the discussion draft of H.R. 

4795 on May 21, 2014. The Subcommittee received testimony from: 

• Ms. Lorraine Krupa Gershman, Director, Regulatory & 

Technical Affairs, American Chemistry Counsel; 

• Mr. Ross Eisenberg, Vice President, Energy and Resources 

Policy, National Association of Manufacturers; 

• Mr. Ken Weiss, Global Managing Partner, Air and Climate 

Change, Environmental Resources Management (ERM); 

• Ms. Karen Kerrigan, President and Chief Executive Officer, Small Business & Entrepreneurship Council; 

• Mr. John Walke, Senior Attorney and Director, Climate 

and Clean Air Program, Natural Resources Defense Council; 

and, 

• Mr. Colin O’Mara, Secretary, Delaware Department of 

Natural Resources and Environmental Control. 

COMMITTEE CONSIDERATION

On May 28, 2014 and May 29, 2014, the Subcommittee on Energy and Power met in open markup session and forwarded the bill 

to the full Committee by a roll call vote of 14 ayes and 8 nays. DurVerDate Mar 15 2010 06:11 Jun 26, 2014 Jkt 039006 PO 00000 Frm 00007 Fmt 6659 Sfmt 6602 E:\HR\OC\HR488.XXX HR488

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ing the markup, two amendments were offered and passed by voice 

vote, two amendments were offered and rejected by voice vote, and 

one amendment was offered and rejected by a roll call vote. 

On June 9, 2014 and June 10, 2014, the Committee on Energy 

and Commerce met in open markup session. During the markup, 

three amendments were offered, of which one was withdrawn and 

two were rejected by roll call votes. A motion by Mr. Upton to order 

H.R. 4795, reported to the House, as amended, was agreed to by 

a record vote of 30 ayes and 19 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. A motion by Mr. 

Upton to order H.R. 4795 reported to the House, without amendment, was agreed to by a roll call vote of 30 ayes and 19 nays. The 

following reflects the roll call votes taken during the Committee 

consideration: 


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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. 4795 provides direction to EPA to improve the transparency 

and timeliness of the preconstruction permit process under the 

Clean Air Act. 

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. 4795 

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. 4795 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. 

CONGRESSIONAL BUDGET OFFICE ESTIMATE

Pursuant to clause 3(c)(3) of rule XIII of the Rules of the House 

of Representatives, the following is the cost estimate provided by 

the Congressional Budget Office pursuant to section 402 of the 

Congressional Budget Act of 1974: 

JUNE 20, 2014. 

Hon. FRED UPTON, 

Chairman, Committee on Energy and Commerce, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 4795, the Promoting New 

Manufacturing Act. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Susanne S. Mehlman. 

Sincerely, 

DOUGLAS W. ELMENDORF. 

Enclosure. 

H.R. 4795—Promoting New Manufacturing Act 

Summary: H.R. 4795 would impose various administrative requirements on the Environmental Protection Agency (EPA) aimed 

at increasing the transparency of its decisions and reducing delays 

associated with the permitting process under the Clean Air Act’s 

New Source Review (NSR) preconstruction program. Under that 


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program, stationary sources of air pollution are required to obtain 

permits prior to building any new facilities or making any modifications to existing facilities. Usually, NSR permits are issued by 

state or local air pollution control agencies. 

Enacting this legislation would require EPA to perform the following activities: 

• Present on the agency’s website the number of 

preconstruction permits issued annually, the percentage of 

such permits issued within one year after filing an application, 

and the average length of time for EPA’s Environmental Appeals Board to resolve administrative appeals; 

• Publish regulations and guidance to assist states, permitting authorities, and permitting applicants whenever final or 

revised national ambient air quality standards are implemented; and 

• Submit an annual report to the Congress identifying actions being taken by the agency to expedite the permitting 

process and the specific reasons for any delays in issuing permits. 

CBO estimates that implementing this legislation would cost 

about $2 million over the 2015–2019 period, subject to the availability of appropriated funds. Enacting H.R. 4795 would not affect 

direct spending or revenues; therefore, pay-as-you-go procedures do 

not apply. 

H.R. 4795 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act (UMRA) 

and would not affect the budgets of state, local, or tribal governments. 

Estimated cost to the Federal Government: CBO estimates that 

implementing H.R. 4795 would cost $2 million over the next five 

years. The costs of this legislation fall within budget function 300 

(natural resources and environment). 

Basis of estimate: For this estimate, CBO assumes that H.R. 

4795 will be enacted by the end of 2014 and that the necessary 

amounts to implement the legislation will be appropriated. 

Based on information from EPA, CBO estimates that implementing H.R. 4795 would have a small annual cost. Under the legislation, EPA would provide permitting data on the agency’s 

website and prepare an annual report for the Congress using information that is already collected. In addition, EPA usually publishes 

implementing guidance associated with final regulations. However, 

implementing this legislation would ensure that such guidance is 

published concurrently rather than after final regulations have 

been published. On balance, CBO estimates that over the 2015– 

2019 period, implementing this bill would cost about $2 million. 

Pay-As-You-Go considerations: None. 

Intergovernmental and private-sector impact: H.R. 4795 contains 

no intergovernmental or private-sector mandates as defined in 

UMRA. 

Estimate prepared by: Federal costs: Susanne S. Mehlman; Impact on state, local, and tribal governments: Jon Sperl; Impact on 

the private sector: Matthew Denneny. 

Estimate approved by: Theresa Gullo, Deputy Assistant Director 

for Budget Analysis. 


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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. 4795 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. 4795 specifically directs to be completed no 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

Section 1. Short title 

This section provides the short title of ‘‘Promoting New Manufacturing Act.’’ 

Section 2. Building and manufacturing projects dashboard 

This section directs the Administrator of the Environmental Protection Agency (EPA) to publish in a readily accessible location on 

the agency’s website estimates of: (1) the number of preconstruction 

permits issued annually under the Clean Air Act’s (CAA) New 

Source Review (NSR) program for major sources, including ‘‘Prevention of Significant Deterioration’’ and ‘‘Nonattainment NSR’’ 

permits; (2) the percentage of such permits issued within one year 

after the date of filing of a completed application; and (3) the average length of time for the EPA’s Environmental Appeals Board to 

resolve administrative appeals. Nothing in this section compels the 

EPA to seek additional information from States and permitting 

agencies beyond information voluntarily provided by State and 

local air agencies for EPA’s RACT/BACT/LAER Clearinghouse 

database. 


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Section 3. Timely issuance of regulations and guidance to address 

new or revised National Ambient Air Quality Standards in 

preconstruction permitting: 

This section directs that in publishing any final new or revised 

national ambient air quality standard (NAAQS), the EPA Administrator shall publish concurrently implementing regulations and 

guidance, as necessary and appropriate to assist States, permitting 

authorities, and permitting applicants. This section also provides 

that if the Administrator fails to publish concurrently final regulations and guidance addressing the submittal and consideration of 

permit applications under a new or revised NAAQS, the new or revised NAAQS shall not apply to preconstruction applications until 

such final regulations and guidance have been published. Nothing 

in the section shall be construed to eliminate the obligation of a 

preconstruction permit applicant to install best available control 

technology and lowest achievable emissions rate technology, as applicable. 

Section 4. Report to Congress on actions to expedite review of 

preconstruction permits: 

This section requires that EPA annually submit a report to Congress on actions being taken by the agency to expedite the process 

for issuing preconstruction permits. Nothing in this section compels 

the EPA to seek information beyond information voluntarily provided by States and local air agencies in EPA’s RACT/BACT/LAER 

Clearinghouse database. 

Section 5. Definitions: 

This section contains the following definitions: 

(1) ‘‘Administrator’’ means the EPA Administrator. 

(2) ‘‘Best available control technology’’ has the meaning given 

that term in CAA section 169(3). 

(3) ‘‘Lowest achievable emissions rate’’ has the meaning given 

that term in CAA section 171(3). 

(4) ‘‘Major Emitting Facility’’ and ‘‘Major Stationary Source’’ has 

the meaning given to those terms in CAA section 302(j). 

(5) ‘‘National Ambient Air Quality Standard’’ means a national 

ambient air quality standard for an air pollutant under CAA section 109 that is finalized after the date of enactment of the Act. 

(6) ‘‘Preconstruction permit’’ means a permit that is required 

under part C or D of title I of the CAA for the construction or modification of a major emitting facility or stationary source, and includes any such permit issued by the EPA or a State, local or tribal 

permitting authority. 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

This legislation does not amend any existing Federal statute. 


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DISSENTING VIEWS 

I. SUMMARY

H.R. 4795, the ‘‘Promoting New Manufacturing Act,’’ does nothing to promote new manufacturing or to improve the permitting 

process for new and expanding manufacturing facilities. Instead, 

the bill weakens air quality protections, allows more pollution, and 

threatens public health. 

The Clean Air Act requires major new or expanding sources of 

air pollution to obtain permits with pollution limits before the facilities start construction. These preconstruction permits ensure 

that a new or expanded facility will not increase local air pollution 

to levels that violate national ambient air quality standards 

(NAAQS), which the Environmental Protection Agency (EPA) sets 

for six principal air pollutants. When EPA updates each air quality 

standard to reflect the latest science, permit applicants have to 

meet the new, more protective standard and show their emissions 

will not harm public health. 

H.R. 4795 creates a loophole in this process. The bill establishes 

imprecise procedural requirements for EPA to follow after setting 

a new air quality standard. If EPA does not meet those requirements, then a new or expanding facility can apply for a 

preconstruction permit based on the old air quality standard, which 

is not adequate to protect public health. In effect, this bill could 

give new sources of pollution ‘‘amnesty’’ from new science-based air 

quality standards. 

This amnesty provision will allow more pollution to enter the air, 

harming public health. It also does not make economic sense. Allowing new facilities to pollute more than their fair share means 

that existing industrial facilities may have to do more to reduce 

their emissions if the area is near or in nonattainment (exceeding 

the NAAQS or contributing to a nearby area’s violation of the 

NAAQS). It also raises the economy-wide cost of cleaning up pollution. As the Clean Air Act has long recognized, it is generally far 

more efficient and cost-effective to build pollution controls into a facility up front, rather than adding them later. 

By setting vague procedural requirements for EPA to follow and 

applying an outdated standard if EPA fails to meet those requirements, the bill creates more regulatory uncertainty and sets up 

new avenues for litigation. This will only serve to delay 

preconstruction permitting for manufacturing facilities, not expedite it, and it will harm public health in the process. 

II. BACKGROUND

A. National Ambient Air Quality Standard-Setting process 

The Clean Air Act requires EPA to set NAAQS for certain pollutants that endanger public health and the environment. EPA sets 


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1 Clean Air Act § 109(b)(1). 

2 Id. at § 109(d)(2). 3 Id. at § 109(d)(1). 4 Id. at § 107(a). 5 Id. at § 107(d)(1)(A). Areas can also be designated as ‘‘unclassifiable,’’ if there is insufficient 

information available to determine whether an area meets a NAAQS. 6 Id. at § 107(d)(1)(B). 7 Id. at § 110(a). 8 Id. at §§ 110(k), 110(c). 9 40 C.F.R. § 51. 

primary NAAQS at concentration levels sufficient to protect the 

public health with an adequate margin of safety.1 Essentially, the 

primary NAAQS identify the level of ambient air pollution that is 

‘‘safe’’ to breathe. 

EPA sets the NAAQS based on a thorough review of the medical 

and scientific evidence, as well as advice provided by an independent scientific review committee.2 EPA must review each 

NAAQS every five years and make revisions as appropriate.3

Once EPA establishes a NAAQS for a pollutant, the states have 

primary responsibility for achieving pollution reductions to meet 

the standard.4 Within a year after EPA establishes or revises a 

NAAQS, each state must designate areas within its borders as in 

attainment (meeting the NAAQS) or nonattainment (exceeding the 

NAAQS or contributing to a nearby area’s violation of the 

NAAQS).5 EPA must issue final designations within two years of 

issuing a NAAQS but can take an additional year if more information is needed.6

Within three years of EPA issuing a NAAQS, each state must 

prepare and submit state implementation plans (SIPs) to require 

and enforce pollution reductions sufficient to meet the NAAQS in 

each air quality control region.7 If EPA disapproves a SIP (or if a 

state fails to submit a SIP), EPA must promulgate a federal implementation plan (FIP), unless the state corrects any deficiencies in 

its SIP as needed to address EPA’s concerns.8

EPA has issued and periodically updated general regulations establishing requirements for state implementation of the NAAQS.9

As part of the implementation process, EPA may issue additional 

regulations or guidance to help states and regulated entities implement a specific NAAQS, but EPA is not required by statute to issue 

any regulations or guidance on implementation. 

B. Preconstruction permitting 

The Clean Air Act requires major new or expanding stationary 

sources of air pollution to obtain permits before they start construction. This requirement aims to ensure that a new facility, or significant modifications to an existing facility, will not significantly 

increase air pollution above levels that are safe to breathe. The 

preconstruction permitting provisions 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. 

States, not EPA, issue the vast majority of preconstruction permits. 

The permitting requirements differ depending on whether the 

new or modified source would be located in an attainment or nonattainment area. In clean air areas that meet the NAAQS, the faVerDate Mar 15 2010 06:11 Jun 26, 2014 Jkt 039006 PO 00000 Frm 00017 Fmt 6604 Sfmt 6604 E:\HR\OC\HR488.XXX HR488

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10 Clean Air Act §§ 165(a)(3) and (a)(4). 11 Id. at § 165(e). 12 Id. at § 165(c). 13 Id. at § 173. 

cility owner or operator must obtain a preconstruction permit 

under the Prevention of Significant Deterioration (PSD) program. 

The owner or operator must demonstrate that the facility is using 

best available control technology (BACT) and that ‘‘emissions from 

. . . such facility will not cause, or contribute to, air pollution in 

excess of any . . . [NAAQS] in any air quality control region.’’ 10 As 

part of the permitting process, the facility must conduct an air 

quality impact analysis to show that the new emissions, in combination with emissions from other nearby sources, will not cause 

or contribute to a violation of the NAAQS.11 If the analysis shows 

that the facility’s emissions would drive the area into nonattainment, then the facility may have to take additional action to lower 

its emissions impact. The law specifies that the permitting agency 

must grant or deny a PSD permit application no later than one 

year after the completed permit application was filed.12

For nonattainment areas, which already have unhealthy air, the 

facility owner or operator must obtain a preconstruction permit 

under the nonattainment new source review (NSR) program. The 

nonattainment NSR program requires the facility to install pollution controls sufficient to meet the lowest achievable emission rate 

(LAER), which is the most stringent emission limitation required 

by a state plan or achieved in practice by that type of source. The 

program also requires any proposed new emissions from the new 

or modified facility to be offset by reductions from existing 

sources.13 The Clean Air Act does not set a time limit for the permitting agency to act on a nonattainment NSR permit application. 

If the applicant or stakeholders disagree with a final permit decision, they can appeal the decision. The venue for this appeal depends on which permitting authority issued the preconstruction 

permit. Most states operate their own permitting programs, which 

are incorporated in their state implementation plans. In these 

states, appeals are handled by state or local administrative review 

boards and state courts. A few states choose to operate EPA’s permitting program through delegated authority. For permits issued 

by these states, and the few permits issued by EPA, the applicant 

or stakeholders can petition the federal Environmental Appeals 

Board (EAB) for review. The EAB can uphold EPA’s permit decision or remand it back to EPA to correct any identified legal deficiencies. 

III. SECTION-BY-SECTION ANALYSIS AND CONCERNS RAISED BY THE

BILL

A. Section 2 

Section 2 of the bill requires EPA to create an online database 

of information about preconstruction permitting since fiscal year 

2008. This database is to include the number of preconstruction 

permits issued each year; the percentage of those permits issued 

within a year of the date of filing a completed application; and the 

average length of time for the EAB to issue a final decision on petiVerDate Mar 15 2010 06:11 Jun 26, 2014 Jkt 039006 PO 00000 Frm 00018 Fmt 6604 Sfmt 6602 E:\HR\OC\HR488.XXX HR488

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14 U.S. Environmental Protection Agency, RACT/BACT/LAER Clearinghouse (RBLC) (online 

at http://cfpub.epa.gov/rblc/). 15 House Committee on Energy and Commerce, Subcommittee on Energy and Power, Testimony of Collin O’Mara, Secretary, Delaware Department of Natural Resources and Environmental Control, Legislative Hearing on H.R. ll, the ‘‘Promoting New Manufacturing Act,’’ 

113th Cong. (May 21, 2014) (hereinafter ‘‘O’Mara testimony’’). 

tions appealing a decision to grant or deny a preconstruction permit application. Section 2 requires EPA to publish this data within 

60 days of enactment and to update it annually. 

The bill, as amended during the subcommittee markup, provides 

that EPA can rely on information that it already has in its possession and does not have to collect any additional information from 

state and local permitting authorities in order to meet the requirements of section 2. 

EPA currently maintains an online database—the RACT/BACT/ 

LAER clearinghouse—to share information about air pollution control technologies used in permitting decisions.14 State and local 

permitting agencies report permit information to EPA on a voluntary basis. EPA estimates that the database reflects only about 

half of the permits issued. 

If EPA relies on this clearinghouse to calculate statistics about 

permitting times for the new database, the statistics would be misleading at best, since they would be based on a partial and nonrepresentative sample of permits. In fact, the statistics are likely 

to over-estimate permitting times, since state and local permitting 

authorities may be more likely to report unique or particularly 

challenging permits to the RACT/BACT/LAER clearinghouse and 

omit more straightforward permits. To obtain a more comprehensive picture of permitting times, EPA would have to collect information from state and local permitting agencies, which would 

strain the resources of the same officials tasked with processing the 

preconstruction permits. 

As a result, it is unclear whether the bill’s new permitting database serves any useful purpose. 

B. Section 3 

Subsection 3(a) effectively requires EPA to issue regulations and 

guidance for implementing a new or revised NAAQS ‘‘concurrently’’ 

with issuing the new or revised air quality standard. If EPA fails 

to do so, subsection 3(b) defers application of the new air quality 

standard to a new preconstruction permit ‘‘until the Agency has 

published such final regulations and guidance.’’ During the Subcommittee hearing on the bill, Rep. Dingell asked Collin O’Mara, 

Secretary of the Delaware Department of Natural Resources and 

Environmental Control, whether the language in section 3 would 

help his agency process preconstruction permits any faster. Secretary O’Mara answered ‘‘no.’’ 15

EPA issuance of ‘‘concurrent’’ rules and guidance 

Subsection 3(a) of the bill directs EPA to issue regulations and 

guidance concurrently ‘‘as the Administrator determines necessary 

and appropriate to assist states, permitting authorities, and permit 

applicants.’’ This qualifying language appears to give EPA some 

discretion to determine when such rules and guidance are appropriate. But subsection 3(b) of the bill takes away that discretion. 


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16See, e.g., the recent revision of the lead NAAQS. 17O’Mara testimony. 18Letter from Mary D. Nichols, Chairman, California Air Resources Board, to the Honorable 

Fred Upton and the Honorable Ed Whitfield, Committee on Energy and Commerce (June 5, 

2014) (hereinafter ‘‘CARB letter’’). 

Subsection 3(b) states that if EPA fails to publish final regulations 

and guidance concurrently with a new air quality standard, then 

new facilities can receive preconstruction permits under the old air 

quality standard rather than the new one. As a result, EPA will 

have no real choice about when and if to issue rules and guidance, 

if the agency aims to ensure all permit applicants comply with the 

new air quality standard. 

As a practical matter, it is not always feasible or advisable for 

EPA to issue concurrent implementation regulations and guidance 

when revising a NAAQS. Most guidance develops organically as 

states and regulated entities begin to implement the NAAQS and 

ask EPA questions. Moreover, in some cases, the existing implementation regulations are sufficient for the revised NAAQS, and no 

new guidance is even needed.16

In its technical assistance to the Committee, EPA raised these 

concerns. EPA explained that implementing regulations are sometimes but not always necessary, as the general implementation 

rules apply to new NAAQS, even without revision. EPA also explained that guidance is most often the result of consultation with 

state and local air agencies and affected sources after they begin 

the process of implementing the NAAQS. EPA expressed concern 

that requiring EPA to issue unnecessary or premature rules and 

guidance could complicate the ability of EPA, the states, and regulated parties to meet their legal obligations and create greater regulatory uncertainty. 

Moreover, state and local permitting agencies do not need concurrent EPA rules and guidance to begin processing 

preconstruction permits under a new air quality standard. At the 

subcommittee hearing, Secretary O’Mara took issue with what he 

called the ‘‘underlying assumption of the legislation,’’ that ‘‘permitting authorities are incapable of managing the pre-construction 

permitting process’’ despite ‘‘decades of experience showing otherwise.’’ He testified that a ‘‘wealth of guidance and tools’’ exist that 

the state can use after EPA adopts or revises a NAAQS. He also 

noted that the state, on occasion, has ‘‘found that approaches that 

we developed during transition were more flexible and protective 

than those contained in the guidance issued later by EPA.’’ 17

The California Air Resources Board (CARB) wrote a letter to the 

Committee sharing similar concerns. CARB wrote: ‘‘For decades, 

permitting authorities have successfully implemented their programs in response to every new standard U.S. EPA has promulgated. In fact, permitting agencies have historically been the advisors to U.S. EPA on the guidance it ultimately releases.’’ 18

Impact on air quality 

Section 3 also allows certain facilities to emit more air pollution 

and harm public health. 

If EPA fails issue concurrent rules and guidance as required by 

section 3, an applicant for a preconstruction permit need not comVerDate Mar 15 2010 06:11 Jun 26, 2014 Jkt 039006 PO 00000 Frm 00020 Fmt 6604 Sfmt 6602 E:\HR\OC\HR488.XXX HR488

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19 House Committee on Energy and Commerce, Subcommittee on Energy and Power, Testimony of John Walke, Natural Resources Defense Council, Legislative Hearing on H.R. ll, the 

‘‘Promoting New Manufacturing Act,’’ 113th Cong. (May 21, 2014) (hereinafter ‘‘Walke testimony’’). 

ply with a new NAAQS until EPA has published final regulations 

and guidance. During the Subcommittee hearing on the bill, John 

Walke, Senior Attorney and Director of the Climate and Clean Air 

Program at the Natural Resources Defense Council, referred to this 

as ‘‘amnesty’’ from national air quality standards.19

The Subcommittee on Energy and Power amended the bill to add 

a statement that section 3 does not eliminate the obligation of a 

preconstruction permit applicant to install best available control 

technology and lowest achievable emissions rate technology, as applicable. However, this new language, contained in section 3(c)(2), 

does not change the legal effect of the bill or have any impact on 

the amnesty it provides. A facility still could obtain a 

preconstruction permit based on an old air quality standard. 

When a company applies for a preconstruction permit to build a 

new facility or modify an existing one, there are two steps. In step 

one, the company must determine which pollution controls it will 

install to reduce the facility’s emissions. The bill does not appear 

to affect this obligation to identify effective pollution controls, and 

section 3(c)(2) reiterates that the obligation remains. 

In step two, the applicant must estimate how much pollution the 

new source will emit, after installing pollution controls, and show 

that it will not cause a violation of the air quality standard. In 

other words, the applicant must model air pollution in the area and 

show that adding pollution won’t make the air unsafe to breathe. 

If the new facility’s emissions will cause a violation of the air quality standard, the applicant must take additional steps to cut its 

emissions or obtain offsets for the excess pollution. 

The bill interferes with this second step of the process, the point 

at which the facility has to prove that its pollution will not harm 

public health. If EPA does not issue rules and guidance at the 

same time it issues a new air quality standard, the old air quality 

standard applies for purposes of a preconstruction permit. This 

means that when the facility is demonstrating whether its emissions will violate the air quality standard, it is using the old, insufficiently protective standard as a benchmark. 

In practical terms, this will allow some facilities to emit extra 

pollution at levels that could harm public health. EPA or a state 

permitting agency might have to issue a permit for a higher-polluting facility that, under current law, would have to install additional pollution controls to lower its emissions before receiving that 

permit. 

This would worsen air quality, particularly in communities downwind of the facility, and harm public health. Secretary O’Mara from 

the state of Delaware testified that the legislation would ‘‘undermine the basic framework of the Clean Air Act—to protect public 

health of all Americans with an adequate margin of safety—and 

will undercut public confidence in permitting programs that were 

designed to protect public health, because regulatory agencies will 

be required to allow harmful emissions in exceedance of a new 


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20O’Mara testimony. 21 CARB letter. 22O’Mara testimony. 23Walke testimony. 24O’Mara testimony. 

NAAQS.’’ 20 CARB wrote that the bill bars permitting agencies 

from applying a new air quality standard to preconstruction permits, ‘‘even if public health concerns would otherwise warrant 

doing so.’’ 21

Impact on the cost of and responsibility for cutting air pollution 

Section 3 would shift the burden of air quality improvements to 

existing industrial facilities. For example, in an attainment area, 

if an applicant for a preconstruction permit does not have to meet 

a revised (more protective) NAAQS, then that facility is in effect 

using up more of the local air emissions ‘‘budget’’ than it should be. 

This could make it more difficult for existing sources in the area 

to expand their facilities without pushing the area closer to or into 

nonattainment. New facilities also may find it harder to locate in 

the area in the future. Secretary O’Mara said it would be ‘‘highly 

unfair’’ to force new and existing sources to ‘‘make up’’ for a facility 

that emits ‘‘more pollution than otherwise would be allowed.’’ 22

In an area that is already in nonattainment, a new or modified 

facility that is allowed to emit more pollution because it was permitted under an old NAAQS necessarily will force other industrial 

sources in the nonattainment area to make deeper air pollution reductions to bring the area into attainment with the new NAAQS. 

John Walke testified that the bill’s ‘‘amnesty’’ provision ‘‘would only 

make it more difficult for state and local officials to deliver clean 

air to their citizens, and more difficult for other local businesses to 

grow while making up for the statutory amnesty granted to newly 

constructed or modified facilities.’’ 23

The bill also has the perverse effect of increasing the cost to industry of achieving air quality standards. The Clean Air Act recognizes that it is generally far less costly and more efficient to install 

pollution controls when a facility is being designed or significantly 

modified, rather than retrofitting existing facilities with additional 

pollution controls. Thus, many provisions of the Act require more 

stringent pollution controls for new and modified sources, compared 

with existing sources. This bill, however, allows new facilities to 

forego installing the most effective pollution controls at the front 

end, which could end up costing that facility and other existing and 

future facilities more at the back end. As Secretary O’Mara testified, a ‘‘very likely result of this bill would be to heap additional, 

costly pollution reduction requirements on already stressed existing 

sources, rather than allowing for the efficient installation of pollution controls while new sources are being constructed, which is the 

most cost-effective way to reduce pollution into the future.’’ 24


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25 CARB letter. 

Impact on regulatory certainty, litigation risks, and permitting timing 

The language in section 3 creates regulatory uncertainty, increases the risk of litigation, and could slow permitting rather than 

expedite it. 

Subsection 3(a) of the bill directs EPA to issue regulations and 

guidance ‘‘concurrently’’ with any new or updated NAAQS. As 

noted above, however, it is not always feasible or advisable for EPA 

to issue concurrent implementation regulations or guidance when 

revising a NAAQS. This creates a catch-22 for EPA. On the one 

hand, EPA could hurry to issue implementation guidance before 

hearing questions from states and industry. That guidance will 

necessarily be incomplete, as it will not address issues that only 

emerge during the implementation process. An industry group that 

wanted to delay implementation of the new air quality standard 

could file a lawsuit saying that EPA’s guidance was not sufficient. 

On the other hand, EPA could wait to issue more robust and 

helpful guidance, but in the meantime, facilities would be able to 

obtain preconstruction permits under the old air quality standard. 

Downwind communities and nearby businesses might challenge a 

permit that allows a new facility to pollute more and shifts the burden of pollution reduction on to them. 

Overall, section 3 leaves open to interpretation—and litigation— 

which rules and guidance EPA must release ‘‘concurrently’’ to prevent a delay in applying the new or revised NAAQS, what constitutes ‘‘final’’ regulation and guidance, and which rules and guidance EPA can wait to release at a later time. This uncertainty creates new opportunities for more lawsuits and delay. 

CARB argues that this bill could actually slow the permitting 

process by forcing states to wait for EPA guidance, even if the state 

does not think that guidance is necessary to issue permits. CARB 

wrote: 

States such as California, with several regions having 

severe air quality issues, need the flexibility to develop 

and implement programs that are protective of public 

health and welfare while accounting for local air quality, 

population exposure, the economy, and other factors. Waiting for U.S. EPA to develop guidance will result in unnecessary delays and public health risks because permitting 

agencies appear to be barred from issuing permits consistent with new, more health-protective air quality standards until U.S. EPA provides guidance.25

Amendments Defeated During Markup 

At the full Committee markup, Democratic members offered two 

amendments that aimed to fully or partially address the concerns 

raised by section 3. Rep. Waxman offered an amendment to strike 

subsection 3(b), which allows a facility to obtain a preconstruction 

permit under an old air quality standard if EPA does not meet certain procedural requirements. The Waxman amendment was defeated by a roll call vote of 18–27. Rep. McNerney offered an 


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amendment to give a federal, state, or local permitting authority 

the choice to opt out of implementing subsection 3(b), if that permitting authority determines that the 3(b) loophole would increase 

air pollution, slow the permitting process, increase regulatory uncertainty, create new litigation, shift the burden of pollution control 

to existing facilities, or increase the overall cost of achieving air 

quality standards. The McNerney amendment was defeated by a 

roll call vote of 19–27. 

C. Section 4 

Section 4 requires EPA to submit an annual report to Congress 

about the agency’s efforts to expedite the process for issuance of 

preconstruction permits. EPA also must identify any reasons for 

delays in issuing preconstruction permits and describe what EPA 

is doing to resolve those delays. The bill requires EPA to collect 

and respond to public comment on each report to Congress. 

Because EPA is not the permitting authority for the vast majority of preconstruction permits, it is unclear how EPA would be able 

to explain or commit to resolve any permitting delays, as required 

in the annual report to Congress mandated by section 4, except in 

the small minority of cases for which EPA is the permitting authority. Completing these annual reports could require EPA to involve 

itself more deeply in state and local permitting decisions. These requirements would also slow the permit process by diverting limited 

EPA resources from processing permits, issuing guidance, and providing support to state and local permit authorities. 

Section 5 specifies that EPA is not required to collect any additional information from state and local permitting authorities to 

complete this report, but it is unclear how EPA could complete the 

report without doing so. 

For the reasons stated above, we dissent from the views contained in the Committee’s report. 

HENRY A. WAXMAN, Ranking Member. 

BOBBY L. RUSH, 

Ranking Member, 

Subcommittee on Energy and Power. 

Æ 


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