II 

114TH CONGRESS 

1ST SESSION S. 2072 

To require the Administrator of the Environmental Protection Agency to 

establish a program under which the Administrator shall defer the designation of an area as a nonattainment area for purposes of the 8- 

hour ozone national ambient air quality standard if the area achieves 

and maintains certain standards under a voluntary early action compact 

plan. 

IN THE SENATE OF THE UNITED STATES 

SEPTEMBER 24, 2015 

Mr. HATCH (for himself and Mrs. MCCASKILL) introduced the following bill; 

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

Public Works 

A BILL 

To require the Administrator of the Environmental Protection Agency to establish a program under which the 

Administrator shall defer the designation of an area as 

a nonattainment area for purposes of the 8-hour ozone 

national ambient air quality standard if the area achieves 

and maintains certain standards under a voluntary early 

action compact plan. 

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

3 SECTION 1. DEFINITIONS. 

4 In this Act: 


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1 (1) ADMINISTRATOR.—The term ‘‘Adminis2 trator’’ means the Administrator of the Environ3 mental Protection Agency. 

4 (2) EARLY ACTION COMPACT PROGRAM.—The 

5 term ‘‘Early Action Compact Program’’ means the 

6 program established under section 2(a). 

7 (3) EPISODE.—The term ‘‘episode’’ has the 

8 meaning given the term in the Clean Air Act (42 

9 U.S.C. 7401 et seq.). 

10 (4) OZONE STANDARD.—The term ‘‘ozone 

11 standard’’ means the 8-hour ozone standard national 

12 ambient air quality standard under the Clean Air 

13 Act (42 U.S.C. 7401 et seq.). 

14 (5) STATE IMPLEMENTATION PLAN.—The term 

15 ‘‘State implementation plan’’ means a State or tribal 

16 implementation plan, as those terms are used in the 

17 Clean Air Act (42 U.S.C. 7401 et seq.). 

18 SEC. 2. EARLY ACTION COMPACT PROGRAM. 

19 (a) ESTABLISHMENT.—Not later than 1 year after 

20 the date of enactment of this Act, the Administrator shall 

21 establish a program, to be known as the ‘‘Early Action 

22 Compact Program’’, under which State, local, and tribal 

23 governments may develop early action compact plans de24 signed to achieve and maintain the ozone standard. 

25 (b) NOTIFICATION.— 


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1 (1) IN GENERAL.—To be eligible to participate 

2 in the Early Action Compact Program, a State, 

3 local, or tribal government shall submit to the Ad4 ministrator— 

5 (A) on the date on which the applicable 

6 State submits to the Administrator the non7 attainment recommendations of the State, a no8 tice of the intent of the State, local, or tribal 

9 government to participate in the Early Action 

10 Compact Program; and 

11 (B) not later than 1 year after the date on 

12 which the State, local, or tribal government 

13 submits the notice under subparagraph (A), an 

14 early action compact plan in accordance with 

15 section 3. 

16 (2) LIMITATION ON NONATTAINMENT STA17 TUS.—In the case of an area under the jurisdiction 

18 of a State, local, or tribal government that provides 

19 a notice under paragraph (1)(A), the Administrator 

20 may not designate the area as a nonattainment area 

21 under section 107 of the Clean Air Act (42 U.S.C. 

22 7407) until after the Administrator has issued a de23 cision on an early action compact plan of the area 

24 under section 4. 


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1 (c) MINIMUM REQUIREMENTS.—The Early Action 

2 Compact Program shall include, at a minimum, provisions 

3 to ensure— 

4 (1) the use of best available science; 

5 (2) participation by State, local, and tribal gov6 ernments through locally crafted solutions; 

7 (3) the voluntary development and implementa8 tion by the State, local, and tribal governments of 

9 early action compact plans; 

10 (4) that if a State implementation plan is re11 quired due to designation of an area as a nonattain12 ment area following the implementation of an early 

13 action compact plan in accordance with this section, 

14 the Administrator shall provide credit to applicable 

15 State, local, or tribal governments and industry par16 ticipants for actions and investments carried out 

17 pursuant to the Early Action Compact Program to18 ward ozone attainment; and 

19 (5) that, in the case of the failure of an area 

20 to achieve ozone attainment, the Administrator shall 

21 defer designation of the area as a nonattainment 

22 area for ground-level ozone under section 107 of the 

23 Clean Air Act (42 U.S.C. 7407) if that area— 

24 (A) is participating in the Early Action 

25 Compact Program; and 


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1 (B) is an area in which an early action 

2 compact plan is being implemented to improve 

3 the air quality of the area. 

4 SEC. 3. EARLY ACTION COMPACT PLAN REQUIREMENTS. 

5 (a) IN GENERAL.—Subject to section 6, an early ac6 tion compact plan entered into under the Early Action 

7 Compact Program shall include— 

8 (1) general provisions to ensure— 

9 (A) public involvement in the development 

10 of the plan, including— 

11 (i) public comment on a proposed 

12 early action compact plan in accordance 

13 with the standard State implementation 

14 plan revision process as implemented by 

15 the applicable State; and 

16 (ii) the provision to the public of in17 formation, updates, awareness, and other 

18 opportunities for public involvement; 

19 (B) that, in the case of the failure of an 

20 area to achieve ozone attainment, an area is 

21 credited under the standard State implementa22 tion plan process for all emission reductions 

23 that result from measures implemented under 

24 the early action compact plan for that area; and 


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1 (C) that amendments to the early action 

2 compact plan accommodate adaptive approaches 

3 that reflect developing science, monitoring, and 

4 control mechanisms; 

5 (2) measurable milestones, including— 

6 (A) completion of emissions inventories 

7 and modeling using best available science and 

8 Environmental Protection Agency modeling 

9 guidance and tools; 

10 (B) adoption of control strategies that 

11 demonstrate attainment; 

12 (C) if necessary, completion and adoption 

13 of early action State implementation plan revi14 sions; 

15 (D) subject to subsection (b) and section 

16 6(b)(2)(B), attainment with the ozone standard 

17 (including any applicable revised ozone stand18 ards that are finalized after the date on which 

19 the early action compact plan is approved by 

20 the Administrator) by not later than 10 years 

21 after the date on which the Administrator ap22 proves the early action compact plan; and 

23 (E) a post-attainment plan; 

24 (3) emissions inventories that— 


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1 (A) use the most current tools available 

2 and will be completed for at least 1 recent epi3 sode so as to support the early action compact 

4 plan; and 

5 (B) include— 

6 (i) at least 1 recent episode reflective 

7 of a typical ozone season exceedance that 

8 meets the episode selection guidance of the 

9 Administrator to ensure that representa10 tive meteorological regimes are considered; 

11 (ii) baseline data to accurately meas12 ure ozone reductions of control measures 

13 implemented through the early action com14 pact plan; and 

15 (iii) continuing episode inventories— 

16 (I) to inform appropriate control 

17 measures; and 

18 (II) to improve understanding of 

19 emission trends and the contributors 

20 to ozone production in the area; 

21 (4) modeling emissions inventories— 

22 (A) to develop State implementation plan 

23 quality modeling episodes that— 


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1 (i) perform within the margin of accu2 racy determined by the Administrator 

3 based on best practices; and 

4 (ii) include a base case and future 

5 case on or before the date of approval by 

6 the Administrator of the early action com7 pact plan; and 

8 (B) that sufficiently account for projected 

9 growth in ozone precursor emissions, particu10 larly from stationary, nonroad, and on-road mo11 bile sources; 

12 (5) continuing development of episodes to rep13 resent a variety of situations that contribute to 

14 ozone production in a manner that— 

15 (A) supports the early action compact 

16 plan; 

17 (B) determines control strategies; 

18 (C) demonstrates relative effectiveness of 

19 control measures; and 

20 (D) demonstrates attainment within the 

21 early action compact plan period; 

22 (6) the applicable Federal, State, local, and 

23 tribal control strategies that— 


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1 (A) demonstrate attainment not later than 

2 the attainment date of the early action compact 

3 plan; 

4 (B) are designed and implemented by the 

5 community with full stakeholder participation; 

6 (C) following the adoption of Federal and 

7 State controls to be implemented by the attain8 ment date of the early action compact, identify 

9 local control strategies that are— 

10 (i) specific; 

11 (ii) quantifiable; 

12 (iii) permanent; and 

13 (iv) enforceable; and 

14 (D) shall be— 

15 (i) incorporated by the applicable 

16 State or Indian tribe into the State imple17 mentation plan; and 

18 (ii) submitted to the Administrator for 

19 approval; and 

20 (7) maintenance for growth provisions— 

21 (A) to address increases in emissions at 

22 least 5 years beyond the attainment date of the 

23 early action compact plan to ensure the area re24 mains in attainment of ozone standards; and 


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1 (B) to require continuing planning proc2 esses, including— 

3 (i) modeling updates; 

4 (ii) identification of actual new point 

5 sources; 

6 (iii) impacts from growth; and 

7 (iv) future transportation patterns 

8 and the impact on ozone levels. 

9 (b) EFFECT OF UPDATED OZONE STANDARDS.— 

10 (1) REVISED PLANS.— 

11 (A) IN GENERAL.—In any case in which, 

12 during the 10-year effective period of an early 

13 action compact plan approved under this Act, 

14 the Administrator finalizes a new, updated, or 

15 modified ozone standard that is applicable to 

16 the early action compact plan, the affected 

17 State, local, or tribal government shall submit 

18 to the Administrator, by not later than 1 year 

19 after the date of finalization of the new, up20 dated, or modified ozone standard, a revised 

21 early action compact plan that incorporates ad22 justed milestones to meet the new, updated, or 

23 modified ozone standard, in accordance with 

24 paragraph (2). 


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1 (B) FAILURE TO SUBMIT.—If an affected 

2 State, local, or tribal government fails to submit 

3 to the Administrator a revised early action com4 pact plan by the applicable deadline under sub5 paragraph (A), the Administrator shall with6 draw approval of the early action compact plan. 

7 (2) DEADLINES.— 

8 (A) MODIFICATION TO OZONE STANDARDS

9 DURING INITIAL 5-YEAR PERIOD.—If the Ad10 ministrator finalizes a new, updated, or modi11 fied ozone standard that is applicable to an 

12 early action compact plan during the 5-year pe13 riod beginning on the date of approval of the 

14 early action compact plan under section 4, the 

15 revised early action compact plan under para16 graph (1) shall ensure achievement by the af17 fected areas of attainment during the 10-year 

18 period beginning on the date of approval of the 

19 original early action compact plan. 

20 (B) MODIFICATION TO OZONE STANDARDS

21 DURING FINAL PERIOD.— 

22 (i) DEFINITION OF FINAL PERIOD.— 

23 In this subparagraph, the term ‘‘final pe24 riod’’, with respect to an early action com25 pact plan, means the period— 


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1 (I) beginning on the date that is 

2 5 years after the date of approval of 

3 the early action compact plan under 

4 section 4; and 

5 (II) ending on the date that is 10 

6 years after that date of approval. 

7 (ii) REQUIREMENT.—Notwithstanding 

8 subsection (a)(2)(D), if the Administrator 

9 finalizes a new, updated, or modified ozone 

10 standard that is applicable to an early ac11 tion compact plan during the final period 

12 of the early action compact plan, the re13 vised early action compact plan under 

14 paragraph (1) shall ensure achievement by 

15 the affected areas of attainment during the 

16 5-year period beginning on the date of sub17 mission of the revised early action compact 

18 plan. 

19 SEC. 4. DECISIONS ON EARLY ACTION COMPACT PLANS. 

20 (a) IN GENERAL.—The Administrator shall issue a 

21 decision on each early action compact plan or revised early 

22 action compact plan submitted to the Administrator under 

23 this Act by not later than 1 year after the date on which 

24 the plan is submitted. 


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1 (b) TYPES OF DECISIONS.—In issuing a decision 

2 under this section, the Administrator shall— 

3 (1) approve the early action compact plan; 

4 (2) deny the early action compact plan; or 

5 (3) in accordance with subsection (c), make 

6 specific suggestions to modify the early action com7 pact plan. 

8 (c) MODIFICATIONS.— 

9 (1) IN GENERAL.—Not later than 1 year after 

10 the date on which a State, local, or tribal govern11 ment receives suggestions from the Administrator 

12 under subsection (b)(3), the State, local, or tribal 

13 government may submit to the Administrator, for 

14 approval in accordance with subsection (b), a modi15 fied early action compact plan that takes the sugges16 tions of the Administrator into consideration. 

17 (2) LIMITATION ON NONATTAINMENT STA18 TUS.—In the case of a State, local, or tribal govern19 ment that submits to the Administrator a modified 

20 early action compact plan under paragraph (1), the 

21 Administrator may not designate the area subject to 

22 the early action compact plan as a nonattainment 

23 area under section 107 of the Clean Air Act (42 

24 U.S.C. 7407) until after the date on which the AdVerDate Sep 11 2014 03:33 Sep 26, 2015 Jkt 049200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\S2072.IS S2072

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1 ministrator issues a decision on the modified early 

2 action compact plan of the area under this section. 

3 SEC. 5. DUTIES OF ADMINISTRATOR. 

4 In carrying out the Early Action Compact Program, 

5 the Administrator shall— 

6 (1) recognize the commitment of each State, 

7 local, or tribal area to voluntarily adopt an early, 

8 substantive, enforceable, and scientifically based at9 tainment plan with early implementation of control 

10 measures by becoming a party to an early action 

11 compact plan developed in accordance with this Act; 

12 (2) provide technical assistance to States, In13 dian tribes, and local areas in the development of 

14 early action compact plans; 

15 (3) ensure prompt review and approval of sub16 mitted early action compact plans; 

17 (4) in a case in which the Administrator denies 

18 a submitted early action compact plan, provide an 

19 explanation of the reason for denying the submitted 

20 early action compact plan; 

21 (5) in the case of the failure of an area subject 

22 to an early action compact plan to achieve attain23 ment status during the period for which the plan is 

24 in effect, defer designation of the area as a non25 attainment area until the expiration of that period 


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1 if the area continues to meet the terms of the plan, 

2 including any milestones established by the plan; 

3 (6) expeditiously designate an area as an at4 tainment area and impose no additional require5 ments other than the post-attainment plan if area 

6 monitors reflect attainment by not later than the 

7 early action compact plan attainment date; and 

8 (7) in the case of the failure of a participating 

9 area to comply with the Early Action Compact Pro10 gram— 

11 (A) withdraw approval under this Act of 

12 the early action compact plan of the area; but 

13 (B) provide reasonable opportunities for 

14 the area to cure deficiencies before withdrawing 

15 that approval. 

16 SEC. 6. WINTER OZONE PROVISIONS. 

17 (a) IN GENERAL.—For each early action compact 

18 plan under this Act, the Administrator shall establish re19 quirements relating to winter ozone levels, including 

20 timelines, that are separate from, but not more burden21 some than, the requirements otherwise established under 

22 this Act. 

23 (b) REGULATIONS.— 

24 (1) IN GENERAL.—The Administrator shall pro25 mulgate regulations— 


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1 (A) to carry out the Early Action Compact 

2 Program; and 

3 (B) specifically to address and accommo4 date unique and complex occurrences of winter 

5 ozone in accordance with this section. 

6 (2) REQUIREMENTS.—The regulations promul7 gated pursuant to paragraph (1) shall provide— 

8 (A) sufficient timelines for the Adminis9 trator and State, local, and tribal governments 

10 to conduct air shed inventories, scientific re11 search and studies necessary for the Adminis12 trator and State, local, and tribal governments 

13 to identify winter ozone causes (including pre14 cursors), and take appropriate actions nec15 essary— 

16 (i)(I) to create accurate emissions in17 ventories and carefully model winter ozone 

18 using the most current tools available; and 

19 (II) over a sufficient period of time, 

20 comprehensively to identify the variety of 

21 situations that typically contribute to ele22 vated winter ozone levels; 

23 (ii)(I) to fully analyze best available 

24 science and data to determine background 

25 ozone levels; and 


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1 (II) to identify meteorological, geo2 graphical, and other factors leading to ele3 vated winter ozone levels; and 

4 (iii) to effectively identify, develop, 

5 and implement air pollution control strate6 gies that the Administrator and State, 

7 local, and tribal governments agree are the 

8 highest-priority activities to reduce winter 

9 ozone levels; and 

10 (B) notwithstanding section 3(a)(2)(D), 

11 given the complexities of winter ozone occur12 rences, a minimum of 10 years after the date 

13 on which the Administrator approves an early 

14 action compact plan for the reduction of winter 

15 ozone levels under the Early Action Compact 

16 Program. 

Æ 


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