II 114th CONGRESS 1st Session S. 2072 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. Definitions In this Act: (1) Administrator The term Administrator means the Administrator of the Environmental Protection Agency. (2) Early Action Compact Program The term Early Action Compact Program means the program established under section 2(a). (3) Episode The term episode has the meaning given the term in the Clean Air Act ( 42 U.S.C. 7401 et seq. ). (4) Ozone standard The term ozone standard means the 8-hour ozone standard national ambient air quality standard under the Clean Air Act ( 42 U.S.C. 7401 et seq. ). (5) State implementation plan The term State implementation plan means a State or tribal implementation plan, as those terms are used in the Clean Air Act ( 42 U.S.C. 7401 et seq. ). 2. Early Action Compact Program (a) Establishment Not later than 1 year after the date of enactment of this Act, the Administrator shall establish a program, to be known as the Early Action Compact Program , under which State, local, and tribal governments may develop early action compact plans designed to achieve and maintain the ozone standard. (b) Notification (1) In general To be eligible to participate in the Early Action Compact Program, a State, local, or tribal government shall submit to the Administrator— (A) on the date on which the applicable State submits to the Administrator the nonattainment recommendations of the State, a notice of the intent of the State, local, or tribal government to participate in the Early Action Compact Program; and (B) not later than 1 year after the date on which the State, local, or tribal government submits the notice under subparagraph (A), an early action compact plan in accordance with section 3. (2) Limitation on nonattainment status In the case of an area under the jurisdiction of a State, local, or tribal government that provides a notice under paragraph (1)(A), the Administrator may not designate the area as a nonattainment area under section 107 of the Clean Air Act ( 42 U.S.C. 7407 ) until after the Administrator has issued a decision on an early action compact plan of the area under section 4. (c) Minimum requirements The Early Action Compact Program shall include, at a minimum, provisions to ensure— (1) the use of best available science; (2) participation by State, local, and tribal governments through locally crafted solutions; (3) the voluntary development and implementation by the State, local, and tribal governments of early action compact plans; (4) that if a State implementation plan is required due to designation of an area as a nonattainment area following the implementation of an early action compact plan in accordance with this section, the Administrator shall provide credit to applicable State, local, or tribal governments and industry participants for actions and investments carried out pursuant to the Early Action Compact Program toward ozone attainment; and (5) that, in the case of the failure of an area to achieve ozone attainment, the Administrator shall defer designation of the area as a nonattainment area for ground-level ozone under section 107 of the Clean Air Act ( 42 U.S.C. 7407 ) if that area— (A) is participating in the Early Action Compact Program; and (B) is an area in which an early action compact plan is being implemented to improve the air quality of the area. 3. Early action compact plan requirements (a) In general Subject to section 6, an early action compact plan entered into under the Early Action Compact Program shall include— (1) general provisions to ensure— (A) public involvement in the development of the plan, including— (i) public comment on a proposed early action compact plan in accordance with the standard State implementation plan revision process as implemented by the applicable State; and (ii) the provision to the public of information, updates, awareness, and other opportunities for public involvement; (B) that, in the case of the failure of an area to achieve ozone attainment, an area is credited under the standard State implementation plan process for all emission reductions that result from measures implemented under the early action compact plan for that area; and (C) that amendments to the early action compact plan accommodate adaptive approaches that reflect developing science, monitoring, and control mechanisms; (2) measurable milestones, including— (A) completion of emissions inventories and modeling using best available science and Environmental Protection Agency modeling guidance and tools; (B) adoption of control strategies that demonstrate attainment; (C) if necessary, completion and adoption of early action State implementation plan revisions; (D) subject to subsection (b) and section 6(b)(2)(B), attainment with the ozone standard (including any applicable revised ozone standards that are finalized after the date on which the early action compact plan is approved by the Administrator) by not later than 10 years after the date on which the Administrator approves the early action compact plan; and (E) a post-attainment plan; (3) emissions inventories that— (A) use the most current tools available and will be completed for at least 1 recent episode so as to support the early action compact plan; and (B) include— (i) at least 1 recent episode reflective of a typical ozone season exceedance that meets the episode selection guidance of the Administrator to ensure that representative meteorological regimes are considered; (ii) baseline data to accurately measure ozone reductions of control measures implemented through the early action compact plan; and (iii) continuing episode inventories— (I) to inform appropriate control measures; and (II) to improve understanding of emission trends and the contributors to ozone production in the area; (4) modeling emissions inventories— (A) to develop State implementation plan quality modeling episodes that— (i) perform within the margin of accuracy determined by the Administrator based on best practices; and (ii) include a base case and future case on or before the date of approval by the Administrator of the early action compact plan; and (B) that sufficiently account for projected growth in ozone precursor emissions, particularly from stationary, nonroad, and on-road mobile sources; (5) continuing development of episodes to represent a variety of situations that contribute to ozone production in a manner that— (A) supports the early action compact plan; (B) determines control strategies; (C) demonstrates relative effectiveness of control measures; and (D) demonstrates attainment within the early action compact plan period; (6) the applicable Federal, State, local, and tribal control strategies that— (A) demonstrate attainment not later than the attainment date of the early action compact plan; (B) are designed and implemented by the community with full stakeholder participation; (C) following the adoption of Federal and State controls to be implemented by the attainment date of the early action compact, identify local control strategies that are— (i) specific; (ii) quantifiable; (iii) permanent; and (iv) enforceable; and (D) shall be— (i) incorporated by the applicable State or Indian tribe into the State implementation plan; and (ii) submitted to the Administrator for approval; and (7) maintenance for growth provisions— (A) to address increases in emissions at least 5 years beyond the attainment date of the early action compact plan to ensure the area remains in attainment of ozone standards; and (B) to require continuing planning processes, including— (i) modeling updates; (ii) identification of actual new point sources; (iii) impacts from growth; and (iv) future transportation patterns and the impact on ozone levels. (b) Effect of updated ozone standards (1) Revised plans (A) In general In any case in which, during the 10-year effective period of an early action compact plan approved under this Act, the Administrator finalizes a new, updated, or modified ozone standard that is applicable to the early action compact plan, the affected State, local, or tribal government shall submit to the Administrator, by not later than 1 year after the date of finalization of the new, updated, or modified ozone standard, a revised early action compact plan that incorporates adjusted milestones to meet the new, updated, or modified ozone standard, in accordance with paragraph (2). (B) Failure to submit If an affected State, local, or tribal government fails to submit to the Administrator a revised early action compact plan by the applicable deadline under subparagraph (A), the Administrator shall withdraw approval of the early action compact plan. (2) Deadlines (A) Modification to ozone standards during initial 5-year period If the Administrator finalizes a new, updated, or modified ozone standard that is applicable to an early action compact plan during the 5-year period beginning on the date of approval of the early action compact plan under section 4, the revised early action compact plan under paragraph (1) shall ensure achievement by the affected areas of attainment during the 10-year period beginning on the date of approval of the original early action compact plan. (B) Modification to ozone standards during final period (i) Definition of final period In this subparagraph, the term final period , with respect to an early action compact plan, means the period— (I) beginning on the date that is 5 years after the date of approval of the early action compact plan under section 4; and (II) ending on the date that is 10 years after that date of approval. (ii) Requirement Notwithstanding subsection (a)(2)(D), if the Administrator finalizes a new, updated, or modified ozone standard that is applicable to an early action compact plan during the final period of the early action compact plan, the revised early action compact plan under paragraph (1) shall ensure achievement by the affected areas of attainment during the 5-year period beginning on the date of submission of the revised early action compact plan. 4. Decisions on early action compact plans (a) In general The Administrator shall issue a decision on each early action compact plan or revised early action compact plan submitted to the Administrator under this Act by not later than 1 year after the date on which the plan is submitted. (b) Types of decisions In issuing a decision under this section, the Administrator shall— (1) approve the early action compact plan; (2) deny the early action compact plan; or (3) in accordance with subsection (c), make specific suggestions to modify the early action compact plan. (c) Modifications (1) In general Not later than 1 year after the date on which a State, local, or tribal government receives suggestions from the Administrator under subsection (b)(3), the State, local, or tribal government may submit to the Administrator, for approval in accordance with subsection (b), a modified early action compact plan that takes the suggestions of the Administrator into consideration. (2) Limitation on nonattainment status In the case of a State, local, or tribal government that submits to the Administrator a modified early action compact plan under paragraph (1), the Administrator may not designate the area subject to the early action compact plan as a nonattainment area under section 107 of the Clean Air Act ( 42 U.S.C. 7407 ) until after the date on which the Administrator issues a decision on the modified early action compact plan of the area under this section. 5. Duties of Administrator In carrying out the Early Action Compact Program, the Administrator shall— (1) recognize the commitment of each State, local, or tribal area to voluntarily adopt an early, substantive, enforceable, and scientifically based attainment plan with early implementation of control measures by becoming a party to an early action compact plan developed in accordance with this Act; (2) provide technical assistance to States, Indian tribes, and local areas in the development of early action compact plans; (3) ensure prompt review and approval of submitted early action compact plans; (4) in a case in which the Administrator denies a submitted early action compact plan, provide an explanation of the reason for denying the submitted early action compact plan; (5) in the case of the failure of an area subject to an early action compact plan to achieve attainment status during the period for which the plan is in effect, defer designation of the area as a nonattainment area until the expiration of that period if the area continues to meet the terms of the plan, including any milestones established by the plan; (6) expeditiously designate an area as an attainment area and impose no additional requirements other than the post-attainment plan if area monitors reflect attainment by not later than the early action compact plan attainment date; and (7) in the case of the failure of a participating area to comply with the Early Action Compact Program— (A) withdraw approval under this Act of the early action compact plan of the area; but (B) provide reasonable opportunities for the area to cure deficiencies before withdrawing that approval. 6. Winter ozone provisions (a) In general For each early action compact plan under this Act, the Administrator shall establish requirements relating to winter ozone levels, including timelines, that are separate from, but not more burdensome than, the requirements otherwise established under this Act. (b) Regulations (1) In general The Administrator shall promulgate regulations— (A) to carry out the Early Action Compact Program; and (B) specifically to address and accommodate unique and complex occurrences of winter ozone in accordance with this section. (2) Requirements The regulations promulgated pursuant to paragraph (1) shall provide— (A) sufficient timelines for the Administrator and State, local, and tribal governments to conduct air shed inventories, scientific research and studies necessary for the Administrator and State, local, and tribal governments to identify winter ozone causes (including precursors), and take appropriate actions necessary— (i) (I) to create accurate emissions inventories and carefully model winter ozone using the most current tools available; and (II) over a sufficient period of time, comprehensively to identify the variety of situations that typically contribute to elevated winter ozone levels; (ii) (I) to fully analyze best available science and data to determine background ozone levels; and (II) to identify meteorological, geographical, and other factors leading to elevated winter ozone levels; and (iii) to effectively identify, develop, and implement air pollution control strategies that the Administrator and State, local, and tribal governments agree are the highest-priority activities to reduce winter ozone levels; and (B) notwithstanding section 3(a)(2)(D), given the complexities of winter ozone occurrences, a minimum of 10 years after the date on which the Administrator approves an early action compact plan for the reduction of winter ozone levels under the Early Action Compact Program.