II 

118TH CONGRESS 

2D SESSION S. 3826 

To amend the Clean Air Act to revise the treatment of certain resilience 

actions and natural disasters, to limit the issuance of new standards 

for criteria pollutants, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

FEBRUARY 28, 2024 

Mr. CASSIDY (for himself and Ms. SINEMA) introduced the following bill; 

which was read twice and referred to the Committee on Environment and 

Public Works 

A BILL 

To amend the Clean Air Act to revise the treatment of 

certain resilience actions and natural disasters, to limit 

the issuance of new standards for criteria pollutants, 

and for other purposes. 

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 ‘‘Modernizing Clean Air 

5 Permitting Act of 2024’’. 


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1 SEC. 2. TREATMENT OF NATURAL BACKGROUND LEVELS 

2 AND ACTIVITY. 

3 (a) TREATMENT OF NATURAL BACKGROUND LEV4 ELS.—Section 107(d) of the Clean Air Act (42 U.S.C. 

5 7407(d)) is amended by adding at the end the following: 

6 ‘‘(8) TREATMENT OF NATURALLY OCCURRING

7 EVENTS, WILDFIRES, AND RESILIENCE ACTIONS.—In 

8 determining whether an area meets national primary 

9 or secondary ambient air quality standards for a pol10 lutant under this subsection, the Administrator shall 

11 not take into consideration any emissions of the pol12 lutant that result from— 

13 ‘‘(A) prescribed fires or wildfires on public 

14 or private land, regardless of the cause of those 

15 fires; 

16 ‘‘(B) actions determined by the Governor 

17 to increase resilience to natural disasters; 

18 ‘‘(C) natural disasters; or 

19 ‘‘(D) naturally occurring events that cause 

20 an increase in the pollutant over the expected 

21 naturally occurring levels in a given year.’’. 

22 (b) EXISTING COMPLIANCE OF PREVIOUS STAND23 ARDS.—Section 109 of the Clean Air Act (42 U.S.C. 

24 7409) is amended by adding at the end the following: 

25 ‘‘(e) REVISIONS RELATED TO NATURALLY OCCUR26 RING BACKGROUND LEVELS.—For national primary and 


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1 secondary ambient air quality standards revised after the 

2 date of enactment of this subsection, if a revision of a 

3 standard by the Administrator would require a State to 

4 lower the emissions of a criteria pollutant in an area of 

5 that State below a level consistent with levels observed 

6 naturally in that area, as determined by the State, in an 

7 average year, the State shall not be required to lower the 

8 levels of that criteria pollutant below locally uncontrollable 

9 levels, including interstate, international, and local mobile 

10 emissions in areas that have implemented a basic vehicle 

11 emission inspection and maintenance program and clean12 fuel vehicle program to comply with the requirements of 

13 section 182. 

14 ‘‘(f) EXISTING COMPLIANCE.—For national primary 

15 and secondary ambient air quality standards revised after 

16 the date of enactment of this subsection, the Adminis17 trator shall take into consideration— 

18 ‘‘(1) existing rates of compliance with previous 

19 national primary and secondary ambient air quality 

20 standards; 

21 ‘‘(2) technological feasibility of complying with 

22 the proposed national primary or secondary ambient 

23 air quality standard revision; and 


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1 ‘‘(3) the costs of complying with the proposed 

2 national primary or secondary ambient air quality 

3 standard revision.’’. 

4 (c) TREATMENT OF MOBILE SOURCES.—Section 

5 110(a) of the Clean Air Act (42 U.S.C. 7410(a)) is 

6 amended by adding at the end the following: 

7 ‘‘(7) TREATMENT OF MOBILE SOURCES.—In de8 veloping or revising a State implementation plan 

9 under this section, the Governor of a State may— 

10 ‘‘(A) make a determination as to the quan11 tity of a criteria pollutant that is created as a 

12 result of mobile sources traversing any area 

13 designated as a nonattainment area as a part 

14 of multi-region or interstate transport; and 

15 ‘‘(B) in addition to mitigation methods de16 veloped for an area designated as a nonattain17 ment area for which a determination was made 

18 under subparagraph (A), develop methods for 

19 new major sources in the nonattainment area to 

20 mitigate or offset the quantity of mobile source 

21 pollution in the nonattainment area determined 

22 under subparagraph (A) through the reduction 

23 of mobile source pollution outside of that non24 attainment area. 


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1 ‘‘(8) TREATMENT OF INTERNATIONAL EMIS2 SIONS.— 

3 ‘‘(A) IN GENERAL.—Not later than 2 years 

4 after the date of enactment of this paragraph, 

5 the Administrator, in consultation with the 

6 States, shall submit to Congress a report that 

7 describes— 

8 ‘‘(i) the extent to which foreign 

9 sources of air pollution, including emis10 sions from sources located outside of North 

11 America, impact— 

12 ‘‘(I) the designation of areas (or 

13 portions of areas) as nonattainment, 

14 attainment, or unclassifiable under 

15 section 107(d); and 

16 ‘‘(II) the attainment and mainte17 nance of national ambient air quality 

18 standards; 

19 ‘‘(ii) the procedures and timelines of 

20 the Administrator for the disposition of pe21 titions submitted under section 179B(b); 

22 ‘‘(iii) the total number of petitions re23 ceived by the Administrator under section 

24 179B and, with respect to each petition— 


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1 ‘‘(I) the date on which the peti2 tion was initially submitted to the Ad3 ministrator; and 

4 ‘‘(II) the date of final disposition 

5 of the petition by the Administrator; 

6 and 

7 ‘‘(iv) whether the Administrator rec8 ommends any statutory changes to facili9 tate— 

10 ‘‘(I) the more efficient review and 

11 disposition of petitions submitted 

12 under section 179B; and 

13 ‘‘(II) the ability to discount the 

14 emissions of foreign sources in calcu15 lating the emissions levels and attain16 ment of an area. 

17 ‘‘(B) RULEMAKING REQUIRED.—Not later 

18 than 3 years after the date of enactment of this 

19 paragraph, the Administrator, in consultation 

20 with the States, shall complete a rulemaking 

21 that details any additional flexibility that is to 

22 be provided to Governors of States in the cre23 ation of State implementation plans under this 

24 section with respect to the facilitation of the 

25 ability described in subparagraph (A)(iv)(II).’’. 


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1 SEC. 3. REVIEW AND REVISION CRITERIA FOR APPLICABLE 

2 STANDARDS. 

3 Section 109(d) of the Clean Air Act (42 U.S.C. 

4 7409(d)) is amended by adding at the end the following: 

5 ‘‘(3)(A) Notwithstanding paragraph (1), the 

6 Administrator may not issue new standards relating 

7 to a criteria pollutant if more than 15 percent of 

8 total air quality control regions that were in non9 attainment for that criteria pollutant as a result of 

10 a previous revision of standards still remain in non11 attainment. 

12 ‘‘(B) If fewer than 15 percent of the total num13 ber of air quality control regions initially in non14 attainment for a criteria pollutant remain in non15 attainment for that criteria pollutant, the Adminis16 trator may issue new standards relating to that cri17 teria pollutant.’’. 

18 SEC. 4. RECLASSIFICATION OF MAJOR SOURCES AS AREA 

19 SOURCES. 

20 Section 112 of the Clean Air Act (42 U.S.C. 7412) 

21 is amended by adding at the end the following: 

22 ‘‘(t) RECLASSIFICATION OF MAJOR SOURCES AS

23 AREA SOURCES.— 

24 ‘‘(1) IN GENERAL.—At any time that a sta25 tionary source demonstrates to the Administrator 

26 that the actual or potential emissions of hazardous 


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1 air pollutants of a major source fall below the stand2 ards described in subsection (a)(1) for a period of 6 

3 consecutive months, the Administrator shall reclas4 sify the major source as an area source under this 

5 section. 

6 ‘‘(2) REQUIREMENTS.—Beginning on the date 

7 of a reclassification of a major source as an area 

8 source under paragraph (1)— 

9 ‘‘(A) any requirements previously applica10 ble to the reclassified source under a major 

11 source standard under this section shall no 

12 longer apply to that reclassified source; 

13 ‘‘(B) the requirements of any applicable 

14 area source standard under this section shall 

15 apply to that reclassified source; and 

16 ‘‘(C) the owner or operator of the reclassi17 fied source shall annually supply monitoring 

18 data of the reclassified source to reconfirm the 

19 reclassification.’’. 

20 SEC. 5. STANDARDS OF PERFORMANCE FOR NEW STA21 TIONARY SOURCES. 

22 (a) IN GENERAL.—Section 111 of the Clean Air Act 

23 (42 U.S.C. 7411) is amended— 

24 (1) in subsection (b)— 

25 (A) in paragraph (1)— 


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1 (i) in subparagraph (B), in the first 

2 sentence, by inserting ‘‘and subject to sub3 paragraph (C)’’ after ‘‘subparagraph (A)’’; 

4 and 

5 (ii) by adding at the end the fol6 lowing: 

7 ‘‘(C) LIMITATION.—The Administrator 

8 may not establish a new Federal standard of 

9 performance for a new source until such time 

10 as the technology proposed to serve as the best 

11 system of emission reduction under the pro12 posed new standard of performance— 

13 ‘‘(i) represents not less than 5 percent 

14 of the deployed systems already in use at 

15 the time the new standard of performance 

16 is proposed; and 

17 ‘‘(ii) has been demonstrated to fully 

18 achieve the emission standards of the pro19 posed standard of performance.’’; and 

20 (B) in paragraph (6), by striking ‘‘sub21 section (a)(1)(A)(i) and (ii)’’ and inserting 

22 ‘‘subsection (a)(1)’’; 

23 (2) in subsection (d), by adding at the end the 

24 following: 


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1 ‘‘(3) LIMITATION OF AUTHORITY.—In pre2 scribing regulations under paragraph (1) and other3 wise carrying out this subsection, the Administrator 

4 may not direct a State— 

5 ‘‘(A) to establish standards of performance 

6 for any air pollutants at a location that is not 

7 the location of an existing source; or 

8 ‘‘(B) to meet any specific substantive emis9 sions criteria established by the Administrator 

10 other than for a criteria air pollutant.’’; and 

11 (3) by adding at the end the following: 

12 ‘‘(k) TREATMENT OF MODIFICATIONS.— 

13 ‘‘(1) IN GENERAL.—For purposes of this sec14 tion but subject to paragraphs (2) and (3), a modi15 fication shall be considered to be a new source only 

16 if— 

17 ‘‘(A) the modification expands the capacity 

18 or production capability of the source; and 

19 ‘‘(B) the maximum hourly emission rate of 

20 an air pollutant that is achievable by such 

21 source after the change is higher than the max22 imum hourly emission rate of such air pollutant 

23 that was achievable by such source during any 

24 hour in the 10-year period immediately pre25 ceding the change. 


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1 ‘‘(2) EXCEPTIONS.—If a modification expands 

2 the capacity or production capability of a source, the 

3 modification shall not be considered to be a new 

4 source for purposes of this section if the modifica5 tion is designed— 

6 ‘‘(A) to reduce any air pollutant emitted by 

7 the source per unit of production; 

8 ‘‘(B) to reduce any greenhouse gas emitted 

9 by the source per unit of production; or 

10 ‘‘(C) to enhance or restore the safety or re11 liability of operations at the source. 

12 ‘‘(3) APPLICATION OF EXCEPTIONS.—A modi13 fication that meets an exception described in para14 graph (2) shall not be considered to be a modifica15 tion for purposes of— 

16 ‘‘(A) the term ‘construction’ (as defined in 

17 section 169(2)) or any provision that uses that 

18 term; or 

19 ‘‘(B) the term ‘modification’ (as defined in 

20 section 171) or any provision that uses that 

21 term. 

22 ‘‘(l) TREATMENT OF OFFSETS.—A proposed new 

23 source shall be exempt from the requirements of a pro24 posed new source in an area designated as in nonattain25 ment if the proposed new source emits not more than 0.5 


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1 percent of the periodic emissions inventory of the criteria 

2 pollutant for the area within which the proposed new 

3 source will be located.’’. 

4 (b) RULE OF CONSTRUCTION.—The amendments 

5 made by subsection (a) shall not treat any change as a 

6 modification for purposes of the Clean Air Act (42 U.S.C. 

7 7401 et seq.) if such change would not have been so treat8 ed as of the day before the date of enactment of this Act. 

9 SEC. 6. TREATMENT OF PENDING PERMITS. 

10 (a) PRECONSTRUCTION REQUIREMENTS.—Section 

11 165(b) of the Clean Air Act (42 U.S.C. 7475(b)) is 

12 amended— 

13 (1) by striking ‘‘(b) The demonstration’’ and in14 serting the following: 

15 ‘‘(b) EXCEPTIONS.— 

16 ‘‘(1) MAXIMUM ALLOWABLE INCREASES.—The 

17 demonstration’’; and 

18 (2) by adding at the end the following: 

19 ‘‘(2) PENDING DRAFT PERMITS.—The require20 ments of this section shall not apply to a new, ex21 panded, or modified major emitting facility if, on the 

22 date on which a new national ambient air quality 

23 standard or maximum allowable increase is promul24 gated, the developer of a proposed major emitting 

25 facility has received a draft permit from the applicaVerDate Sep 11 2014 03:50 Feb 29, 2024 Jkt 049200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S3826.IS S3826

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1 ble permitting authority that demonstrates compli2 ance with the applicable standard or maximum al3 lowable increase in effect before the promulgation of 

4 the new national ambient air quality or maximum al5 lowable increase.’’. 

6 (b) PERMIT REQUIREMENTS.—Section 173 of the 

7 Clean Air Act (42 U.S.C. 7503) is amended— 

8 (1) in subsection (a), in the matter preceding 

9 paragraph (1), by striking ‘‘The permit program re10 quired by section 172(b)(6)’’ and inserting ‘‘Except 

11 as provided in subsection (f), the permit program re12 quired by section 172(c)(5)’’; and 

13 (2) by adding at the end the following: 

14 ‘‘(f) PENDING DRAFT PERMITS.— 

15 ‘‘(1) IN GENERAL.—The requirements of this 

16 section shall not apply to a new or modified major 

17 source if, on the date on which a nonattainment 

18 area is first designated as in nonattainment with re19 spect to a pollutant or on the date on which an area 

20 is reclassified, by operation of law or by another 

21 method, to a higher classification of nonattain22 ment— 

23 ‘‘(A) the major source has received a draft 

24 permit from the applicable permitting authority 


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1 that demonstrates compliance with the stand2 ards in effect on the day before that date; and 

3 ‘‘(B) the final permit is ultimately issued 

4 to the new or modified major source under the 

5 standards for which the draft permit was con6 sidered. 

7 ‘‘(2) APPLICABILITY.—Any subsequent modi8 fication to a major source described in paragraph 

9 (1) that requires a new permit and is made after the 

10 applicable date described in that paragraph shall be 

11 subject to the standards applicable at the time of the 

12 request for the new permit.’’. 

Æ 


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