II 

109TH CONGRESS 

2D SESSION S. 3868 

To amend the Clean Air Act to encourage the most polluted areas in the 

United States to attain clean air standards. 

IN THE SENATE OF THE UNITED STATES 

SEPTEMBER 7 (legislative day, SEPTEMBER 6), 2006 

Mr. INHOFE 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 encourage the most polluted 

areas in the United States to attain clean air standards. 

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 ‘‘Clean Air Attainment 

5 Enforcement Act’’. 

6 SEC. 2. IMPOSITION OF SANCTIONS. 

7 Section 179 of the Clean Air Act (42 U.S.C. 7509) 

8 is amended— 


jcorcoran on PRODPC62 with BILLS
2 

•S 3868 IS

1 (1) in subsection (a), by striking ‘‘For any im2 plementation’’ and inserting ‘‘Except as provided in 

3 subsection (e), for any implementation’’; and 

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

5 ‘‘(e) SANCTIONS FOR COVERED AREAS.— 

6 ‘‘(1) DEFINITION OF COVERED AREA.—In this 

7 subsection, the term ‘covered area’ means any area 

8 that is classified as— 

9 ‘‘(A) a PM2.5 nonattainment area under— 

10 ‘‘(i) the final rule entitled ‘Air Quality 

11 Designations and Classifications for the 

12 Fine Particles (PM2.5) National Ambient 

13 Air Quality Standards’ (70 Fed. Reg. 944 

14 (January 5, 2005)); or 

15 ‘‘(ii) any final nonattainment designa16 tion promulgated pursuant to the final 

17 version of the proposed rule entitled ‘Na18 tional Ambient Air Quality Standards for 

19 Particulate Matter, Part II’ (71 Fed. Reg. 

20 2620 (January 17, 2006)); and 

21 ‘‘(B) a Serious, Severe, or Extreme Area 

22 for ozone nonattainment under the final rule 

23 entitled ‘Air Quality Designations and Classi24 fications for the 8-Hour Ozone National Ambi25 ent Air Quality Standards; Early Action ComVerDate Aug 31 2005 00:10 Sep 13, 2006 Jkt 049196 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S3868.IS S3868

jcorcoran on PRODPC62 with BILLS
3 

•S 3868 IS

1 pact Areas With Deferred Effective Dates’ (69 

2 Fed. Reg. 23858 (April 30, 2004)). 

3 ‘‘(2) SANCTIONS APPLICABLE TO COVERED

4 AREAS.—If a State in which a covered area is lo5 cated does not submit an implementation plan in ac6 cordance with, or otherwise fails to comply with, 

7 subsection (a)— 

8 ‘‘(A) the Administrator shall not have the 

9 discretion to select whether sanctions under 

10 paragraph (1) or (2) of subsection (b) will be 

11 imposed on the covered area; and 

12 ‘‘(B) the Administrator shall impose on the 

13 covered area the highway and emission offset 

14 sanctions described in paragraphs (1) and (2), 

15 respectively, of subsection (b), except that, with 

16 respect to the emission offset requirements de17 scribed in subsection (b)(2), the ratio of emis18 sion reductions to increased emissions applica19 ble to the covered area shall be 5 to 1.’’. 

20 SEC. 3. ENFORCEMENT FOR SELECT AREAS FOR FAILURE 

21 TO ATTAIN. 

22 (a) OZONE.—Section 185 of the Clean Air Act (42 

23 U.S.C. 7511d) is amended— 

24 (1) by striking the section designation and 

25 heading and inserting the following: 


jcorcoran on PRODPC62 with BILLS
4 

•S 3868 IS

1 ‘‘SEC. 185. ENFORCEMENT FOR SELECT AREAS FOR FAIL2 URE TO ATTAIN.’’; 

3 (2) in the first sentence of subsection (a), by 

4 striking ‘‘Each implementation’’ and inserting ‘‘Ex5 cept as provided in subsection (f), each implementa6 tion’’; and 

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

8 ‘‘(f) OZONE ATTAINMENT IN COVERED AREAS.— 

9 ‘‘(1) DEFINITIONS.—In this subsection: 

10 ‘‘(A) ATTAINMENT YEAR.—The term ‘at11 tainment year’, with respect to a covered area, 

12 means the calendar year during which the cov13 ered area is required to attain the standard for 

14 ozone described in the final rule. 

15 ‘‘(B) BASELINE QUANTITY.—The term 

16 ‘baseline quantity’ means, for any attainment 

17 year, the lesser of— 

18 ‘‘(i) the quantity of actual VOC or 

19 NOx emissions of a stationary source; or 

20 ‘‘(ii)(I) the quantity of VOC or NOx

21 emissions allowed under a permit applica22 ble to a stationary source; or 

23 ‘‘(II) if no such permit has been 

24 issued for the attainment year, the quan25 tity of those emissions allowed under the 


jcorcoran on PRODPC62 with BILLS
5 

•S 3868 IS

1 applicable State implementation plan dur2 ing the attainment year. 

3 ‘‘(C) COVERED AREA.—The term ‘covered 

4 area’ has the meaning given the term in section 

5 179(e). 

6 ‘‘(D) FINAL RULE.—The term ‘final rule’ 

7 means the final rule entitled ‘Air Quality Des8 ignations and Classifications for the 8-Hour 

9 Ozone National Ambient Air Quality Standards; 

10 Early Action Compact Areas With Deferred Ef11 fective Dates’ (69 Fed. Reg. 23858 (April 30, 

12 2004)). 

13 ‘‘(2) IMPLEMENTATION PLAN REVISION.— 

14 ‘‘(A) IN GENERAL.—Each implementation 

15 plan revision required under subsection (c), (d), 

16 or (e) of section 182 (relating to the attainment 

17 plans for Serious, Severe, and Extreme Areas, 

18 respectively) shall— 

19 ‘‘(i) provide that, if the area to which 

20 the plan revision applies is a covered area, 

21 each major stationary source that emits 

22 VOCs or NOx and that is located in the 

23 covered area shall pay to the Administrator 

24 a fee in an amount calculated under sub25 paragraph (B) as a penalty for the failure 


jcorcoran on PRODPC62 with BILLS
6 

•S 3868 IS

1 to attain the standard for ozone by the ap2 plicable attainment date specified in the 

3 final rule; and 

4 ‘‘(ii) include procedures for the assess5 ment and collection of those fees. 

6 ‘‘(B) AMOUNT OF FEE.—The amount of a 

7 fee paid under this subsection for each ton of 

8 VOCs or NOx emitted by a major stationary 

9 source in a covered area in nonattainment dur10 ing a calendar year in excess of 70 percent of 

11 the baseline quantity shall be (based on classi12 fications of Serious, Severe, and Extreme Areas 

13 in effect as of December 31, 2006, and as ad14 justed annually in accordance with section 

15 502(b)(3)(B)(v)) (relating to inflation adjust16 ment)— 

17 ‘‘(i) with respect to a ton of VOCs— 

18 ‘‘(I) in a Serious Area, $10,000; 

19 ‘‘(II) in a Severe Area, $20,000; 

20 and 

21 ‘‘(III) in an Extreme Area, 

22 $30,000; and 

23 ‘‘(ii) with respect to a ton of NOx, 

24 $5,000, regardless of whether the NOx is 


jcorcoran on PRODPC62 with BILLS
7 

•S 3868 IS

1 emitted in a Serious, Severe, or Extreme 

2 Area. 

3 ‘‘(3) PENALTIES FOR FAILURE TO MAKE

4 PROGRESS TOWARD ATTAINMENT IN COVERED

5 AREAS.— 

6 ‘‘(A) IN GENERAL.—Upon approval of a 

7 State implementation plan that covers a covered 

8 area, and annually thereafter until the applica9 ble deadline by which the covered area is re10 quired to achieve attainment, as specified in 

11 section 181(a) and as updated by the final rule, 

12 the Administrator shall determine, in accord13 ance with subparagraph (B), whether the cov14 ered area is making progress that is sufficient 

15 to enable the covered area to achieve attain16 ment by that deadline. 

17 ‘‘(B) DETERMINATION OF PROGRESS.— 

18 The Administrator shall not determine under 

19 subparagraph (A) that a covered area is making 

20 sufficient progress toward achieving attainment 

21 for any calendar year unless the Administrator 

22 determines, at a minimum, that the covered 

23 area has achieved a reduction in the aggregate 

24 quantity of VOCs or NOx emitted in the cov25 ered area for the calendar year that is equal to 


jcorcoran on PRODPC62 with BILLS
8 

•S 3868 IS

1 or greater than the product obtained by multi2 plying— 

3 ‘‘(i) the aggregate quantity, in tons, of 

4 the VOC or NOx emission reductions, re5 spectively, that are required, during the pe6 riod beginning on the date of the deter7 mination by the Administrator and ending 

8 on the applicable date referred to in sub9 paragraph (A), to achieve attainment; by 

10 ‘‘(ii) the quotient obtained by divid11 ing— 

12 ‘‘(I) the number of months, 

13 rounded to the nearest month, be14 tween the date of submission of the 

15 State implementation plan applicable 

16 to the covered area and the date of 

17 the determination by the Adminis18 trator; by 

19 ‘‘(II) the number of months, 

20 rounded to the nearest month, be21 tween the date of submission of that 

22 State implementation plan and the 

23 applicable attainment date referred to 

24 in subparagraph (A). 


jcorcoran on PRODPC62 with BILLS
9 

•S 3868 IS

1 ‘‘(C) IMPOSITION OF PENALTIES.—If the 

2 Administrator determines under this paragraph 

3 that a covered area is not making sufficient 

4 progress to enable the covered area to achieve 

5 attainment by the applicable deadline referred 

6 to in subparagraph (A), the Administrator 

7 shall— 

8 ‘‘(i) for the first calendar year for 

9 which the determination is made, impose 

10 on each major stationary source located in 

11 the covered area a penalty in an amount 

12 that is equal to 10 percent of the amount 

13 of the fee that, based on whether the 

14 major stationary source is located in a Se15 rious, Severe, or Extreme Area, would be 

16 paid by the major stationary source under 

17 paragraph (2)(B) for failure to meet a na18 tional primary ambient air quality stand19 ard for ozone by the deadline referred to in 

20 subparagraph (A); and 

21 ‘‘(ii) for each subsequent calendar 

22 year until the deadline referred to in sub23 paragraph (A)— 

24 ‘‘(I) reevaluate the progress 

25 being made by the covered area toVerDate Aug 31 2005 00:10 Sep 13, 2006 Jkt 049196 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S3868.IS S3868

jcorcoran on PRODPC62 with BILLS
10 

•S 3868 IS

1 ward achieving attainment by the 

2 deadline referred to in subparagraph 

3 (A); and 

4 ‘‘(II) if the Administrator deter5 mines that the covered area is not 

6 making sufficient progress, impose on 

7 each major stationary source located 

8 in the covered area a penalty in an 

9 amount that is equal to the sum of 

10 the penalty imposed on the same class 

11 (with respect to location in a Serious, 

12 Severe, or Extreme Area) of major 

13 stationary source under clause (i) and 

14 the product obtained by multiplying— 

15 ‘‘(aa) 5 percent of the fee 

16 that, based on whether the major 

17 stationary source is located in a 

18 Serious, Severe, or Extreme 

19 Area, would be paid by the major 

20 stationary source under para21 graph (2)(B) for failure to meet 

22 a national primary ambient air 

23 quality standard for ozone by the 

24 deadline referred to in subpara25 graph (A); and 


jcorcoran on PRODPC62 with BILLS
11 

•S 3868 IS

1 ‘‘(bb) the number of cal2 endar years for which the covered 

3 area has been previously deter4 mined not to have made suffi5 cient progress under this para6 graph as of the date of the deter7 mination by the Administrator 

8 (excluding the determination for 

9 the current calendar year). 

10 ‘‘(D) SUSPENSION OF PENALTIES.—If the 

11 Administrator determines under this paragraph 

12 that a covered area that was determined not to 

13 be making sufficient progress toward attain14 ment under this paragraph for a preceding cal15 endar year is making sufficient progress toward 

16 attainment for the current calendar year, the 

17 Administrator shall suspend the imposition of 

18 penalties on major stationary sources located in 

19 the covered area for the current calendar 

20 year.’’. 

21 (b) PARTICULATE MATTER.—Section 188 of the 

22 Clean Air Act (42 U.S.C. 7513) is amended by adding 

23 at the end the following: 

24 ‘‘(g) PARTICULATE MATTER ATTAINMENT IN COV25 ERED AREAS.— 


jcorcoran on PRODPC62 with BILLS
12 

•S 3868 IS

1 ‘‘(1) DEFINITIONS.—In this subsection: 

2 ‘‘(A) ATTAINMENT YEAR.—The term ‘at3 tainment year’, with respect to a covered area, 

4 means the calendar year during which the cov5 ered area is required to attain the standard for 

6 PM2.5 described in the final rules. 

7 ‘‘(B) BASELINE QUANTITY.—The term 

8 ‘baseline quantity’ means, for any attainment 

9 year, the lesser of— 

10 ‘‘(i) the quantity of actual PM2.5

11 emissions of a stationary source; or 

12 ‘‘(ii)(I) the quantity of PM2.5 emis13 sions allowed under a permit applicable to 

14 a stationary source; or 

15 ‘‘(II) if no such permit has been 

16 issued for the attainment year, the quan17 tity of those emissions allowed under the 

18 applicable State implementation plan dur19 ing the attainment year. 

20 ‘‘(C) COVERED AREA.—The term ‘covered 

21 area’ has the meaning given the term in section 

22 179(e). 

23 ‘‘(D) FINAL RULES.—The term ‘final 

24 rules’ means— 


jcorcoran on PRODPC62 with BILLS
13 

•S 3868 IS

1 ‘‘(i) the final rule entitled ‘Air Quality 

2 Designations and Classifications for the 

3 Fine Particles (PM2.5) National Ambient 

4 Air Quality Standards’ (70 Fed. Reg. 944 

5 (January 5, 2005)); and 

6 ‘‘(ii) the final version of the proposed 

7 rule entitled ‘National Ambient Air Quality 

8 Standards for Particulate Matter, Part II’ 

9 (71 Fed. Reg. 2620 (January 17, 2006)). 

10 ‘‘(E) PM2.5.—The term ‘PM2.5’ means 

11 particulate matter the aerodynamic diameter of 

12 which is less than or equal to 2.5 micrometers. 

13 ‘‘(2) IMPLEMENTATION PLAN REVISION.— 

14 ‘‘(A) IN GENERAL.—Each implementation 

15 plan revision required under section 110 shall— 

16 ‘‘(i) provide that, if the area to which 

17 the plan revision applies is a covered area, 

18 each major stationary source that emits 

19 PM2.5 and that is located in the covered 

20 area shall pay to the Administrator a fee 

21 in an amount calculated under subpara22 graph (B) as a penalty for the failure to 

23 attain the standard for PM2.5 in the final 

24 rules by the applicable attainment date 

25 specified in the final rules; and 


jcorcoran on PRODPC62 with BILLS
14 

•S 3868 IS

1 ‘‘(ii) include procedures for the assess2 ment and collection of those fees. 

3 ‘‘(B) AMOUNT OF FEE.—The amount of a 

4 fee paid under this subsection for each ton of 

5 PM2.5 emitted by a major stationary source in 

6 a covered area in nonattainment during a cal7 endar year in excess of 70 percent of the base8 line quantity shall be, as adjusted annually in 

9 accordance with section 502(b)(3)(B)(v) (relat10 ing to inflation adjustment), $50,000. 

11 ‘‘(3) PENALTIES FOR FAILURE TO MAKE

12 PROGRESS TOWARD ATTAINMENT IN COVERED

13 AREAS.— 

14 ‘‘(A) IN GENERAL.—Upon approval of a 

15 State implementation plan that covers a covered 

16 area, and annually thereafter until the applica17 ble deadline by which the covered area is re18 quired to achieve attainment, as specified in the 

19 final rules, the Administrator shall determine, 

20 in accordance with subparagraph (B), whether 

21 the covered area is making progress that is suf22 ficient to enable the covered area to achieve at23 tainment by that deadline. 

24 ‘‘(B) DETERMINATION OF PROGRESS.— 

25 The Administrator shall not determine under 


jcorcoran on PRODPC62 with BILLS
15 

•S 3868 IS

1 subparagraph (A) that a covered area is making 

2 sufficient progress toward achieving attainment 

3 for any calendar year unless the Administrator 

4 determines, at a minimum, that the covered 

5 area has achieved a reduction in the aggregate 

6 quantity of PM2.5 emitted in the covered area 

7 for the calendar year that is equal to or greater 

8 than the product obtained by multiplying— 

9 ‘‘(i) the aggregate quantity, in tons, of 

10 the PM2.5 emission reductions that are re11 quired, during the period beginning on the 

12 date of the determination by the Adminis13 trator and ending on the applicable date 

14 referred to in subparagraph (A), to achieve 

15 attainment; by 

16 ‘‘(ii) the quotient obtained by divid17 ing— 

18 ‘‘(I) the number of months, 

19 rounded to the nearest month, be20 tween the date of submission of the 

21 State implementation plan applicable 

22 to the covered area and the date of 

23 the determination by the Adminis24 trator; by 


jcorcoran on PRODPC62 with BILLS
16 

•S 3868 IS

1 ‘‘(II) the number of months, 

2 rounded to the nearest month, be3 tween the date of submission of that 

4 State implementation plan and the 

5 applicable attainment date referred to 

6 in subparagraph (A). 

7 ‘‘(C) IMPOSITION OF PENALTIES.—If the 

8 Administrator determines under this paragraph 

9 that a covered area is not making sufficient 

10 progress to enable the covered area to achieve 

11 attainment by the applicable deadline referred 

12 to in subparagraph (A), the Administrator 

13 shall— 

14 ‘‘(i) for the first calendar year for 

15 which the determination is made, impose 

16 on each major stationary source located in 

17 the covered area a penalty in an amount 

18 that is equal to 10 percent of the amount 

19 of the fee that would be paid by the major 

20 stationary source under paragraph (2)(B) 

21 for failure to meet a national primary am22 bient air quality standard for PM2.5 by the 

23 deadline referred to in subparagraph (A); 

24 and 


jcorcoran on PRODPC62 with BILLS
17 

•S 3868 IS

1 ‘‘(ii) for each subsequent calendar 

2 year until the deadline referred to in sub3 paragraph (A)— 

4 ‘‘(I) reevaluate the progress 

5 being made by the covered area to6 ward achieving attainment by the 

7 deadline referred to in subparagraph 

8 (A); and 

9 ‘‘(II) if the Administrator deter10 mines that the covered area is not 

11 making sufficient progress, impose on 

12 each major stationary source located 

13 in the covered area a penalty in an 

14 amount that is equal to the sum of 

15 the penalty imposed on the same class 

16 of major stationary source under 

17 clause (i) and the product obtained by 

18 multiplying— 

19 ‘‘(aa) 5 percent of the fee 

20 that would be paid by the major 

21 stationary source under para22 graph (2)(B) for failure to meet 

23 a national primary ambient air 

24 quality standard for PM2.5 by the 


jcorcoran on PRODPC62 with BILLS
18 

•S 3868 IS

1 deadline referred to in subpara2 graph (A); and 

3 ‘‘(bb) the number of cal4 endar years for which the covered 

5 area has been previously deter6 mined not to have made suffi7 cient progress under this para8 graph as of the date of the deter9 mination by the Administrator 

10 (excluding the determination for 

11 the current calendar year). 

12 ‘‘(D) SUSPENSION OF PENALTIES.—If the 

13 Administrator determines under this paragraph 

14 that a covered area that was determined not to 

15 be making sufficient progress toward attain16 ment under this paragraph for a preceding cal17 endar year is making sufficient progress toward 

18 attainment for the current calendar year, the 

19 Administrator shall suspend the imposition of 

20 penalties on major stationary sources located in 

21 the covered area for the current calendar 

22 year.’’. 

Æ 


jcorcoran on PRODPC62 with BILLS