Hill Heat

Subcommittee markup.

Markup memo

Items to be considered:

• H.R. 6409, Foreign Emissions and Nonattainment Clarification for Economic Stability (FENCES) (Rep. Pfluger)
• H.R. 4218, Clean Air and Economic Advancement Reform (CLEAR) Act (Rep. Carter)
• H.R. 6387, Fire Improvement and Reforming Exceptional Events (FIRE) Act (Rep. Evans)
• H.R. 4214, Clean Air and Building Infrastructure Improvement Act (Rep. Allen)
• H.R. 161, New Source Review Permitting Improvement Act (Rep. Griffith)
• H.R. 6373, Air Permitting Improvements to Protect National Security Act (Rep. Palmer)
• H.R. 6398, Reducing and Eliminating Duplicative Environmental Regulations (RED Tape) Act (Rep. Joyce)

The legislative hearing on most of these bills was on September 16th.

The proposed FENCES Act would let states escape having EPA designate an area as “nonattainment” for a national ambient air quality standard by blaming ambient air quality exceedances on sources outside their borders or outside the country — even though residents are indisputably breathing unhealthy air.

The Clean Air and Economic Advancement Reform (CLEAR) Act would make several changes to the Clean Air Act, including amending section 109(d) to extend the current NAAQS review cycle from five years to 10 years; section 109(b)(1) to allow consideration of attainability when choosing among a range of air quality standards that are protective of human health and the environment; section 110(c)(1) to provide states the opportunity to address concerns in a State Implementation Plan (SIP) submission before a Federal Implementation Plan is issued; and section 1825 to eliminate certain demonstration requirements in a SIP to promote increased technological innovations in control technologies. The legislation also includes provisions similar to H.R. 6387 concerning how certain events including fires, drought, and heat, are considered as part of the NAAQS process and H.R. 6409 concerning how non-attainment areas are classified as severe or extreme for ozone or as serious for particulate matter, and sanctions are imposed for implementation plan deficiencies under section 179.

The Clean Air Act section 319 allows states to petition EPA to exclude air pollution caused by “exceptional events” from EPA’s consideration in determining whether an area is violating a national ambient air quality standard. The proposed FIRE Act (H.R. 6387) would revise the definition of “exceptional event” to explicitly include prescribed fires undertaken to reduce the risk and severity of wildfires. The bill also would make other changes designed to make it easier for states to demonstrate that an ambient air quality standard violation resulted from an exceptional event. The proposed bill is unnecessary because EPA’s regulations already establish criteria for prescribed fires to be treated as “exceptional events.” More importantly, the proposed bill would put public health at risk by relaxing the required demonstration a state must make for an ambient air quality standard exceedance to be disregarded due to it being caused by an exceptional event. Such lax criteria for exceptional events would contravene the statutory principle in Clean Air Act section 319 “that each State must take necessary measures to safeguard public health regardless of the source of the air pollution.”

The Clean Air and Building Infrastructure Improvement Act (H.R. 4214) amends section 1097 require EPA to concurrently publish regulations and guidance for implementing a revised NAAQS and prevent the new or revised standards from applying to preconstruction permit applications until the Administrator has published such final regulations and guidance. It also clarifies that nothing in the subsection eliminates the obligation of a preconstruction permit applicant to install the best available control technology and lowest achievable emission rate technology, and clarifies that nothing in the subsection limits the authority of a state, local, or Tribal permitting authority to impose more stringent emissions requirements pursuant to a state, local, or tribal law than NAAQS. The legislation also provides that the 2024 PM2.5 standard shall not apply to the review and disposition of a preconstruction permit application if a permit application is completed on or before the date of promulgation of the final designation of an area; or a public notice of a preliminary determination on a draft permit is provided within 60 days after the date of final designation of an area.

The so-called “New Source Review Permitting Improvement” Act (H.R. 161) would essentially eliminate NSR for emissions-increasing changes made to our nation’s largest industrial sources.

The proposed “Air Permitting Improvements to Protect National Security” Act (H.R. 6373) would authorize the President to exempt proposed large new or modified semiconductor manufacturing facilities and facilities that extract, process, refine, or mill a “critical mineral” from the requirement to “offset” the new air pollution they will cause with air pollution reductions within the same airshed.

Clean Air Act section 309 grants EPA authority to review and comment on the environmental impact of (1) legislation proposed by any Federal department or agency, (2) newly authorized Federal projects for construction and certain other major Federal agency actions, and (3) proposed regulations published by any Federal department or agency. The proposed “RED Tape” Act would eliminate all of EPA’s section 309 authority except for its authority to comment on proposed legislation.