Clean Air Act and Related Issues - 114th Congress (2015-2016)

Ozone NAAQS

Ozone Standards Implementation Act of 2016 (H.R. 4775 & S. 2882)

Background

The House of Representatives passed H.R. 4775, the Ozone Standards Implementation Act of 2016, on June 8, 2016 by a vote of 234 to 177.  The bill was introduced by Rep. Peter Olson (R-TX) on March 17, 2016.  A companion bill, S. 2882, was introduced in the Senate on April 28, 2016 by Senators Shelley Moore Capito (R-WV) and Jeff Clake (R-AZ).  Sponsors of the legislation say it is intended to provide states with more time and flexibility to implement the 2015 ozone National Ambient Air Quality Standards (NAAQS) and to address other issues facing states under the NAAQS program.  Among the statutory changes H.R. 4775 and S. 2882 would make with respect to the 2015 ozone NAAQS are the following: 1) states would not be required to make area designation recommendations to EPA until October 26, 2024; 2) EPA would then promulgate designations by October 26, 2025; 3) states would submit State Implementation Plans under Clean Air Act section 110(a)(1) by October 26, 2026; and 4) the 2015 ozone NAAQS would not apply to the review and disposition of a preconstruction permit application if the permitting authority determines that the application is complete on or before the date of final area designation or publishes a notice of preliminary determination or draft permit for the application within 60 days after final area designation.  The bills would also change the frequency of reviews for all NAAQS from five years to 10 years and prevent completion of another review of the ozone NAAQS before October 26, 2025.  Further, the bill would allow the EPA Administrator, when setting or revising any NAAQS, to consider technological feasibility in the event that a range of air quality levels (rather than one discrete level) is found to be requisite to protect public health with an adequate margin of safety.  The EPA Administrator would be required under the bills to request from the agency’s independent science advisors, prior to setting or revising any NAAQS, advice regarding any adverse public health, welfare, social, economic or energy impacts that may result from various strategies for attainment and maintenance of the NAAQS.  The bills also call for publication of regulations and guidance for implementing a new or revised NAAQS concurrent with the publication of the new or revised NAAQS and, in the event rules and guidance are not published on this schedule, the bills would exempt permitted sources form being subject to new or revised NAAQS and allow them to instead meet preconstruction review requirements of the outdated standard.  Other provisions would exempt Extreme ozone nonattainment areas from requirements for contingency measures; inject consideration of economic feasibility into the reasonable further progress requirements for ozone nonattainment areas and technological achievability and economic feasibility into reasonable further progress requirements for particulate matter nonattainment areas; require an EPA report to Congress, developed in consultation with the states, on the extent of the impact of foreign sources of air pollution; and require EPA to conduct a study of ozone formation.  

During debate of the bill on the House floor, six amendments were considered: 1) to provide that no additional funds be authorized to implement the Act (Rep. Ed Whitfield, R-KY)—passed by a vote of 236-170; 2) to allow federal, state, local or tribal permitting agencies to opt out of provisions of the bill exempting permitted sources from new or revised NAAQS in the absence of timely EPA rules or guidance if a permitting agency determines that issuing a preconstruction permit under an outdated and less protective standard is likely to have specified adverse impacts (Rep. Bobby Rush, D-IL)—failed by a vote of 171-235; 3) to strike consideration of technological feasibility when establishing NAAQS (Rep. Frank Pallone, D-NJ)—failed by a vote of 169 to 242; 4) to call for the EPA study on ozone formation required by the bill to analyze the relative contribution from wildfires (Rep. Paul Gozar, R-AZ)—passed by voice vote; 5) to amend the Clean Air Act (CAA) to repeal the exemption for aggregation of emissions from oil and gas sources and add provisions requiring EPA to list hydrogen sulfide as a hazardous air pollutant (Rep. Jared Polis, D-CO)—failed by a vote of 160 to 251; and 6) to provide that the bill would not apply if the EPA Administrator, in consultation with the Clean Air Scientific Advisory Committee, finds that application of any section could harm human health or the environment (Rep. Eleanor Holmes Norton, D-DC)—failed by a vote of 171 to 239.

The White House issued a Statement of Administration Policy on June 7, 2016, expressing strong opposition to H.R. 4775, stating that it “would undermine the vitally important environmental and health protections of the CAA” and indicating that if the President were presented with the bill, his senior advisors would recommend that he veto it.

Key Actions

June 22, 2016 – The Senate Environment and Public Works Subcommittee on Clean Air and Nuclear Safety convened Examining Pathways Toward Compliance of the National Ambient Air Quality Standard for Ground-Level Ozone: Legislative Hearing on S. 2882 and S. 2072.  

June 8, 2016 – The House of Representatives approved H.R. 4775 by a vote of 234 to 177.  During debate of the bill, six amendments were considered, two of which were approved – one to provide that no additional funds be authorized to implement the Act and the other to to call for the EPA study on ozone formation required by the bill to analyze the relative contribution from wildfires.  The Office of the Clerk of the House of Representatives provided a summary of the debate (see from 2:15 PM to 5:25 PM).

June 7, 2016 – The White House issued a Statement of Administration Policy strongly opposing H.R. 4775 and indicating that if the President were presented with the bill his senior advisors would recommend that he veto it.

June 7, 2016 – The House Rules Committee met to establish the terms and conditions for consideration by the House of H.R. 4775 and identify the proposed amendments to be considered.  Details on the outcome of that meeting (including the proposed amendments) are available here.

May 18, 2016 – The full House Energy and Commerce Committee approved H.R. 4775 by a party-line vote of 30 to 23.  Information on the Committee's proceedings is available here.

May 11-12, 2016 –The House Energy and Commerce Subcommittee on Energy and Power approved H.R. 4775 by a vote of 15 to 13.

May 9, 2016 – Sixty conservative organizations sent a letter to House E&C Chairman Fred Upton and Senate EPW Chairman James Inhofe urging them to reform EPA's ozone NAAQS and to the rulemaking process for ozone and other NAAQS pollutants.  The organizations say H.R. 4775 and S. 2882 achieve their objectives.

April 28, 2016 – Senators Shelley Moore Capito (R-WV) and Jeff Flake (R-AZ) introduced S. 2882, a companion bill to H.R. 4775.  The text of the bill, as introduced is here.  The sponsors also released a one-page fact sheet to accompany the bill.

April 18, 2016 – Over 200 industry groups signed a letter supporting H.R. 4775.

April 14, 2016 – The House Energy and Commerce Subcommittee onenergy and Power held a hearing on H.R. 4775.

April 13, 2016 – A dozen medical and public health organizations sent a letter opposing H.R. 4775.

March 17, 2016 – Rep. Peter Olson introduced H.R. 4775the Ozone Standards Implementation Act of 2016. 

 

ORDEAL Act (S. 640 & H.R. 1327)

Background

Senator Jeff Flake (R-AZ) introduced – S. 640, the Ozone Regulatory Delay and Extension of Assessment Length (ORDEAL) Act of 2015  on March 3, 2015.  The bill  would delay EPA’s review and revision of National Ambient Air Quality Standards (NAAQS) for ozone and other criteria pollutants so that such initiatives take place every 10 years rather than every five years; it bill would postpone action on the 2008 ozone NAAQS until 2018.  The Senate Enviroment and Public Works Committee held a hearing on EPA's ozone NAAQS and S. 640 and several other bills on June 3, 2015.  A companion to S. 640 – H.R. 1327 – was introduced in the House by Rep. Matt Salmon, also on March 4, 2015.    

Key Actions

June 3, 2015 – The Senate Environment and Public Works Committee convened "Challenges and Implications of EPA's Proposed NAAQS for Ground-Level Ozone and Legislative Hearing on S. 638, S. 751 and S. 640."

March 4, 2015 – S. 640 the Ozone Regulatory Delay and Extension of Assessment Length (ORDEAL) Act of 2015, was introduced by Senator Jeff Flake (R-AZ).  Comprehensive information on the bill is available here.  A companion bill, H.R. 1327, was introduced in the House by Rep. Matt Salmon.

 

CASE Act (H.R. 1388 & S. 751)

Background

On March 17, 2015, companion bills to bar EPA from making the National Ambient Air Quality Standards (NAAQS) for ozone more protective were introduced in the House – H.R. 1388 – and Senate – S. 751 – by Rep. Pete Olson (R-TX) and Senator John Thune (R-SD), respectively.  The Clean Air, Strong Economies (CASE) Act would prohibit EPA from proposing a primary or secondary ozone NAAQS lower than the current standard of 75 parts per billion until at least 85 percent of the counties that were nonattainment for that standard as of July 2, 2014 achieve full compliance.  The CASE Act would also require that in promulgating a primary or secondary NAAQS for ozone EPA shall 1) only consider all or part of a county to be a nonattainment area under the standard on the basis of direct air quality monitoring, 2) take into consideration feasibility and cost and 3) include in the regulatory impact analysis for the proposed and final rules at least one analysis that does not include any calculation of benefits that result from reducing emissions of any pollutant other than ozone.  The Senate Enviroment and Public Works Committee held a hearing on EPA's ozone NAAQS and S. 751 and several other bills on June 3, 2015.    

Key Actions

June 3, 2015 – The Senate Environment and Public Works Committee convened "Challenges and Implications of EPA's Proposed NAAQS for Ground-Level Ozone and Legislative Hearing on S. 638, S. 751 and S. 640."

March 17, 2015 – The Clean Air, Strong Economies (CASE) Act was introduced in the House and Senate.  Comprehensive information on H.R. 1388 is available here.  Comprehensive information on S. 751 is available here.

 

REPAIR Act (S. 1393)

Background

Senator John Thune (R-SD) introduced S. 1393 – the Real EPA Impact Reviews (REPAIR) ing Act – on May 20, 2015.  The REPAIR Act Requires the Regulatory Impact Analysis of any proposed or final rule to include an analysis that does not comprise other proposed or unimplemented rules.
Key Actions

May 20, 2015 – The Real EPA Impact Reviews (REPAIR) Act, S. 1393, was introduced by Senator John Thune (R-SD).

 

S. 2072

Background

Senator Orrin Hatch (R-UT) introduced S. 2072 on September 24, 2015.  The bill would require EPA to establish a program under which the agency shall defer teh designation of an area as nonattainment for the 8-hour ozone National Ambient Air Quality Standard if the area achieves and maintains certain standards under a voluntary early action compact plan.
Key Actions

June 22, 2016 – The Senate Environment and Public Works Subcommittee on Clean Air and Nuclear Safety convened Examining Pathways Toward Compliance of the National Ambient Air Quality Standard for Ground-Level Ozone: Legislative Hearing on S. 2882 and S. 2072.  

September 24, 2015S. 2072 was introduced by Senator Orrin Hatch (R-UT).

 

H.J. Res. 70

Background

Rep. Jacie Walorski (R-IN) introduced House Joint Resolution 70 on October 22, 2015, to disapprove EPA's new final ozone National Ambient Air Quality Standards and establish that they shall have no force.  In a press release, Rep. Walorski said the Congressional Review Act allows Congress to expedite consideration of the joint resolution, preventing implementation of the standards and issuance of any rule that is substantially similar.  Under the expedited procedures, a joint resolution passes with a simple majority vote and cannot be amended or filibustered in the Senate.  However, if passed, the joint resolution would still require signature by the President and the affirmative vote of two-thirds of each chamber to override a veto.  
Key Actions

October 22, 2015 – H.J. Res. 70 was introduced by Rep. Jackie Walorski (R-IN) to disapprove the new final ozone NAAQS and establish that is shall have no force.

 

S.J. Res. 25 & H.J. Res. 74

Background

Senator Jeff Flake (R-AZ) introduced Senate Joint Resolution 25 on November 17, 2015 to stop implementation of the new ozone National Ambient Air Quality Standards.  S.J. 25 seeks to invoke congressional authority under the Congressional Review Act (CRA) seeks to disapprove the final ozone rule promulgated by EPA, leaving it without force or effect. The CRA allows Congress, by passage of a joint resolution, to disapprove and invalidate administrative rules with simple majority votes in the House and Senate, though a two-thirds majority is still required to override any presidential veto.  Rep. Paul Gosar (R-AZ) introduced a companion resolution, H.J. 74, in the House on November 21, 2015.
Key Actions

November 21, 2015 – Rep. Pail Gosar (R-AZ) introduced H.J. Res. 74, a companion to S.J. Res 25.

November 17, 2015 – Senator Jeff Flake (R-AZ) introduced S.J. Res. 25 to stop implementation of the new ozone NAAQS.

 

Ozone NAAQS Deadline Harmonization Act (H.R. 4000)

Background

Re. Bill Flores (R-TX) introduced H.R. 4000, the Ozone NAAQS Deadline Harmonization Act, on November 16, 2015.  The bill would delay enforcement of the new 2015 ozone NAAQS by postponing final EPA designation of nonattainment areas under the new standard from 2017 until October 26, 2025.  State Implementation Plans under Clean Air Act Section 110(a)(1) would then be required one year later.  H.R. 4000 also provides that the 2015 ozone standards would not apply to the review and disposition of preconstruction permit applications that are deemed complete before final designations are made in 2025 or if EPA or the state, local or tribal permitting authority publishes a notice of preliminary determination or draft permit for the application prior to 60 days after the promulgation of final designations.  Further, H.R. 4000 would expand the statutory interval between reviews of the NAAQS for all criteria pollutants from five years to 10 years. 
Key Actions

November 16, 2015 – Rep. Bill Flores (R-TX) introduced H.R. 4000, the Ozone NAAQS Deadline Harmonization Act.

 

Clean Air Implementation Act (H.R. 4265)

Background

H.R. 4265, the Clean Air Implementation Act, was introduced by Rep. Peter Olson (R-TX) on December 16, 2015.  H.R. 4265 would delay Implementation of the 70-ppb ozone National Ambient Air Quality Standards (NAAQS) while EPA studies the impacts of foreign emissions on nonattainment areas.  The bill would also would also extend the intervals at which EPA reviews the NAAQS from the current five years to eight years.  In addition, it would allow the agency to consider “feasibility” when setting a new standard.  The study required by the bill would be conducted by EPA in coordination with the National Academies of Sciences.  The agencies would be tasked with reporting to Congress within two years the extent to which foreign sources of pollution affect achievement of the NAAQS in the U.S.  Implementation of the 2015 ozone standards would be halted until the study is complete.

Key Actions

December 16, 2015 – Rep. Peter Olson introduced H.R. 4265, the Clean Air Implementation Act.