II 118th CONGRESS 2d Session S. 3826 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. Short title This Act may be cited as the Modernizing Clean Air Permitting Act of 2024 . 2. Treatment of natural background levels and activity (a) Treatment of natural background levels Section 107(d) of the Clean Air Act ( 42 U.S.C. 7407(d) ) is amended by adding at the end the following: (8) Treatment of naturally occurring events, wildfires, and resilience actions In determining whether an area meets national primary or secondary ambient air quality standards for a pollutant under this subsection, the Administrator shall not take into consideration any emissions of the pollutant that result from— (A) prescribed fires or wildfires on public or private land, regardless of the cause of those fires; (B) actions determined by the Governor to increase resilience to natural disasters; (C) natural disasters; or (D) naturally occurring events that cause an increase in the pollutant over the expected naturally occurring levels in a given year. . (b) Existing compliance of previous standards Section 109 of the Clean Air Act ( 42 U.S.C. 7409 ) is amended by adding at the end the following: (e) Revisions related to naturally occurring background levels For national primary and secondary ambient air quality standards revised after the date of enactment of this subsection, if a revision of a standard by the Administrator would require a State to lower the emissions of a criteria pollutant in an area of that State below a level consistent with levels observed naturally in that area, as determined by the State, in an average year, the State shall not be required to lower the levels of that criteria pollutant below locally uncontrollable levels, including interstate, international, and local mobile emissions in areas that have implemented a basic vehicle emission inspection and maintenance program and clean-fuel vehicle program to comply with the requirements of section 182. (f) Existing compliance For national primary and secondary ambient air quality standards revised after the date of enactment of this subsection, the Administrator shall take into consideration— (1) existing rates of compliance with previous national primary and secondary ambient air quality standards; (2) technological feasibility of complying with the proposed national primary or secondary ambient air quality standard revision; and (3) the costs of complying with the proposed national primary or secondary ambient air quality standard revision. . (c) Treatment of mobile sources Section 110(a) of the Clean Air Act ( 42 U.S.C. 7410(a) ) is amended by adding at the end the following: (7) Treatment of mobile sources In developing or revising a State implementation plan under this section, the Governor of a State may— (A) make a determination as to the quantity of a criteria pollutant that is created as a result of mobile sources traversing any area designated as a nonattainment area as a part of multi-region or interstate transport; and (B) in addition to mitigation methods developed for an area designated as a nonattainment area for which a determination was made under subparagraph (A), develop methods for new major sources in the nonattainment area to mitigate or offset the quantity of mobile source pollution in the nonattainment area determined under subparagraph (A) through the reduction of mobile source pollution outside of that nonattainment area. (8) Treatment of international emissions (A) In general Not later than 2 years after the date of enactment of this paragraph, the Administrator, in consultation with the States, shall submit to Congress a report that describes— (i) the extent to which foreign sources of air pollution, including emissions from sources located outside of North America, impact— (I) the designation of areas (or portions of areas) as nonattainment, attainment, or unclassifiable under section 107(d); and (II) the attainment and maintenance of national ambient air quality standards; (ii) the procedures and timelines of the Administrator for the disposition of petitions submitted under section 179B(b); (iii) the total number of petitions received by the Administrator under section 179B and, with respect to each petition— (I) the date on which the petition was initially submitted to the Administrator; and (II) the date of final disposition of the petition by the Administrator; and (iv) whether the Administrator recommends any statutory changes to facilitate— (I) the more efficient review and disposition of petitions submitted under section 179B; and (II) the ability to discount the emissions of foreign sources in calculating the emissions levels and attainment of an area. (B) Rulemaking required Not later than 3 years after the date of enactment of this paragraph, the Administrator, in consultation with the States, shall complete a rulemaking that details any additional flexibility that is to be provided to Governors of States in the creation of State implementation plans under this section with respect to the facilitation of the ability described in subparagraph (A)(iv)(II). . 3. Review and revision criteria for applicable standards Section 109(d) of the Clean Air Act ( 42 U.S.C. 7409(d) ) is amended by adding at the end the following: (3) (A) Notwithstanding paragraph (1), the Administrator may not issue new standards relating to a criteria pollutant if more than 15 percent of total air quality control regions that were in nonattainment for that criteria pollutant as a result of a previous revision of standards still remain in nonattainment. (B) If fewer than 15 percent of the total number of air quality control regions initially in nonattainment for a criteria pollutant remain in nonattainment for that criteria pollutant, the Administrator may issue new standards relating to that criteria pollutant. . 4. Reclassification of major sources as area sources Section 112 of the Clean Air Act ( 42 U.S.C. 7412 ) is amended by adding at the end the following: (t) Reclassification of major sources as area sources (1) In general At any time that a stationary source demonstrates to the Administrator that the actual or potential emissions of hazardous air pollutants of a major source fall below the standards described in subsection (a)(1) for a period of 6 consecutive months, the Administrator shall reclassify the major source as an area source under this section. (2) Requirements Beginning on the date of a reclassification of a major source as an area source under paragraph (1)— (A) any requirements previously applicable to the reclassified source under a major source standard under this section shall no longer apply to that reclassified source; (B) the requirements of any applicable area source standard under this section shall apply to that reclassified source; and (C) the owner or operator of the reclassified source shall annually supply monitoring data of the reclassified source to reconfirm the reclassification. . 5. Standards of performance for new stationary sources (a) In general Section 111 of the Clean Air Act ( 42 U.S.C. 7411 ) is amended— (1) in subsection (b)— (A) in paragraph (1)— (i) in subparagraph (B), in the first sentence, by inserting and subject to subparagraph (C) after subparagraph (A) ; and (ii) by adding at the end the following: (C) Limitation The Administrator may not establish a new Federal standard of performance for a new source until such time as the technology proposed to serve as the best system of emission reduction under the proposed new standard of performance— (i) represents not less than 5 percent of the deployed systems already in use at the time the new standard of performance is proposed; and (ii) has been demonstrated to fully achieve the emission standards of the proposed standard of performance. ; and (B) in paragraph (6), by striking subsection (a)(1)(A)(i) and (ii) and inserting subsection (a)(1) ; (2) in subsection (d), by adding at the end the following: (3) Limitation of authority In prescribing regulations under paragraph (1) and otherwise carrying out this subsection, the Administrator may not direct a State— (A) to establish standards of performance for any air pollutants at a location that is not the location of an existing source; or (B) to meet any specific substantive emissions criteria established by the Administrator other than for a criteria air pollutant. ; and (3) by adding at the end the following: (k) Treatment of modifications (1) In general For purposes of this section but subject to paragraphs (2) and (3), a modification shall be considered to be a new source only if— (A) the modification expands the capacity or production capability of the source; and (B) the maximum hourly emission rate of an air pollutant that is achievable by such source after the change is higher than the maximum hourly emission rate of such air pollutant that was achievable by such source during any hour in the 10-year period immediately preceding the change. (2) Exceptions If a modification expands the capacity or production capability of a source, the modification shall not be considered to be a new source for purposes of this section if the modification is designed— (A) to reduce any air pollutant emitted by the source per unit of production; (B) to reduce any greenhouse gas emitted by the source per unit of production; or (C) to enhance or restore the safety or reliability of operations at the source. (3) Application of exceptions A modification that meets an exception described in paragraph (2) shall not be considered to be a modification for purposes of— (A) the term construction (as defined in section 169(2)) or any provision that uses that term; or (B) the term modification (as defined in section 171) or any provision that uses that term. (l) Treatment of offsets A proposed new source shall be exempt from the requirements of a proposed new source in an area designated as in nonattainment if the proposed new source emits not more than 0.5 percent of the periodic emissions inventory of the criteria pollutant for the area within which the proposed new source will be located. . (b) Rule of construction The amendments made by subsection (a) shall not treat any change as a modification for purposes of the Clean Air Act ( 42 U.S.C. 7401 et seq. ) if such change would not have been so treated as of the day before the date of enactment of this Act. 6. Treatment of pending permits (a) Preconstruction requirements Section 165(b) of the Clean Air Act ( 42 U.S.C. 7475(b) ) is amended— (1) by striking (b) The demonstration and inserting the following: (b) Exceptions (1) Maximum allowable increases The demonstration ; and (2) by adding at the end the following: (2) Pending draft permits The requirements of this section shall not apply to a new, expanded, or modified major emitting facility if, on the date on which a new national ambient air quality standard or maximum allowable increase is promulgated, the developer of a proposed major emitting facility has received a draft permit from the applicable permitting authority that demonstrates compliance with the applicable standard or maximum allowable increase in effect before the promulgation of the new national ambient air quality or maximum allowable increase. . (b) Permit requirements Section 173 of the Clean Air Act ( 42 U.S.C. 7503 ) is amended— (1) in subsection (a), in the matter preceding paragraph (1), by striking The permit program required by section 172(b)(6) and inserting Except as provided in subsection (f), the permit program required by section 172(c)(5) ; and (2) by adding at the end the following: (f) Pending draft permits (1) In general The requirements of this section shall not apply to a new or modified major source if, on the date on which a nonattainment area is first designated as in nonattainment with respect to a pollutant or on the date on which an area is reclassified, by operation of law or by another method, to a higher classification of nonattainment— (A) the major source has received a draft permit from the applicable permitting authority that demonstrates compliance with the standards in effect on the day before that date; and (B) the final permit is ultimately issued to the new or modified major source under the standards for which the draft permit was considered. (2) Applicability Any subsequent modification to a major source described in paragraph (1) that requires a new permit and is made after the applicable date described in that paragraph shall be subject to the standards applicable at the time of the request for the new permit. .