[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 3868 Introduced in Senate (IS)]








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.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Clean Air Attainment Enforcement 
Act''.

SEC. 2. IMPOSITION OF SANCTIONS.

    Section 179 of the Clean Air Act (42 U.S.C. 7509) is amended--
            (1) in subsection (a), by striking ``For any 
        implementation'' and inserting ``Except as provided in 
        subsection (e), for any implementation''; and
            (2) by adding at the end the following:
    ``(e) Sanctions for Covered Areas.--
            ``(1) Definition of covered area.--In this subsection, the 
        term `covered area' means any area that is classified as--
                    ``(A) a PM<INF>2.5</INF> nonattainment area under--
                            ``(i) the final rule entitled `Air Quality 
                        Designations and Classifications for the Fine 
                        Particles (PM2.5) National Ambient Air Quality 
                        Standards' (70 Fed. Reg. 944 (January 5, 
                        2005)); or
                            ``(ii) any final nonattainment designation 
                        promulgated pursuant to the final version of 
                        the proposed rule entitled `National Ambient 
                        Air Quality Standards for Particulate Matter, 
                        Part II' (71 Fed. Reg. 2620 (January 17, 
                        2006)); and
                    ``(B) a Serious, Severe, or Extreme Area for ozone 
                nonattainment under the final rule entitled `Air 
                Quality Designations and Classifications for the 8-Hour 
                Ozone National Ambient Air Quality Standards; Early 
                Action Compact Areas With Deferred Effective Dates' (69 
                Fed. Reg. 23858 (April 30, 2004)).
            ``(2) Sanctions applicable to covered areas.--If a State in 
        which a covered area is located does not submit an 
        implementation plan in accordance with, or otherwise fails to 
        comply with, subsection (a)--
                    ``(A) the Administrator shall not have the 
                discretion to select whether sanctions under paragraph 
                (1) or (2) of subsection (b) will be imposed on the 
                covered area; and
                    ``(B) the Administrator shall impose on the covered 
                area the highway and emission offset sanctions 
                described in paragraphs (1) and (2), respectively, of 
                subsection (b), except that, with respect to the 
                emission offset requirements described in subsection 
                (b)(2), the ratio of emission reductions to increased 
                emissions applicable to the covered area shall be 5 to 
                1.''.

SEC. 3. ENFORCEMENT FOR SELECT AREAS FOR FAILURE TO ATTAIN.

    (a) Ozone.--Section 185 of the Clean Air Act (42 U.S.C. 7511d) is 
amended--
            (1) by striking the section designation and heading and 
        inserting the following:

``SEC. 185. ENFORCEMENT FOR SELECT AREAS FOR FAILURE TO ATTAIN.'';

            (2) in the first sentence of subsection (a), by striking 
        ``Each implementation'' and inserting ``Except as provided in 
        subsection (f), each implementation''; and
            (3) by adding at the end the following:
    ``(f) Ozone Attainment in Covered Areas.--
            ``(1) Definitions.--In this subsection:
                    ``(A) Attainment year.--The term `attainment year', 
                with respect to a covered area, means the calendar year 
                during which the covered area is required to attain the 
                standard for ozone described in the final rule.
                    ``(B) Baseline quantity.--The term `baseline 
                quantity' means, for any attainment year, the lesser 
                of--
                            ``(i) the quantity of actual VOC or 
                        NO<INF>x </INF> emissions of a stationary 
                        source; or
                            ``(ii)(I) the quantity of VOC or 
                        NO<INF>x</INF> emissions allowed under a permit 
                        applicable to a stationary source; or
                            ``(II) if no such permit has been issued 
                        for the attainment year, the quantity of those 
                        emissions allowed under the applicable State 
                        implementation plan during the attainment year.
                    ``(C) Covered area.--The term `covered area' has 
                the meaning given the term in section 179(e).
                    ``(D) Final rule.--The term `final rule' means the 
                final rule entitled `Air Quality Designations and 
                Classifications for the 8-Hour Ozone National Ambient 
                Air Quality Standards; Early Action Compact Areas With 
                Deferred Effective Dates' (69 Fed. Reg. 23858 (April 
                30, 2004)).
            ``(2) Implementation plan revision.--
                    ``(A) In general.--Each implementation plan 
                revision required under subsection (c), (d), or (e) of 
                section 182 (relating to the attainment plans for 
                Serious, Severe, and Extreme Areas, respectively) 
                shall--
                            ``(i) provide that, if the area to which 
                        the plan revision applies is a covered area, 
                        each major stationary source that emits VOCs or 
                        NO<INF>x</INF> and that is located in the 
                        covered area shall pay to the Administrator a 
                        fee in an amount calculated under subparagraph 
                        (B) as a penalty for the failure to attain the 
                        standard for ozone by the applicable attainment 
                        date specified in the final rule; and
                            ``(ii) include procedures for the 
                        assessment and collection of those fees.
                    ``(B) Amount of fee.--The amount of a fee paid 
                under this subsection for each ton of VOCs or 
                NO<INF>x</INF> emitted by a major stationary source in 
                a covered area in nonattainment during a calendar year 
                in excess of 70 percent of the baseline quantity shall 
                be (based on classifications of Serious, Severe, and 
                Extreme Areas in effect as of December 31, 2006, and as 
                adjusted annually in accordance with section 
                502(b)(3)(B)(v)) (relating to inflation adjustment)--
                            ``(i) with respect to a ton of VOCs--
                                    ``(I) in a Serious Area, $10,000;
                                    ``(II) in a Severe Area, $20,000; 
                                and
                                    ``(III) in an Extreme Area, 
                                $30,000; and
                            ``(ii) with respect to a ton of 
                        NO<INF>x</INF>, $5,000, regardless of whether 
                        the NO<INF>x</INF> is emitted in a Serious, 
                        Severe, or Extreme Area.
            ``(3) Penalties for failure to make progress toward 
        attainment in covered areas.--
                    ``(A) In general.--Upon approval of a State 
                implementation plan that covers a covered area, and 
                annually thereafter until the applicable deadline by 
                which the covered area is required to achieve 
                attainment, as specified in section 181(a) and as 
                updated by the final rule, the Administrator shall 
                determine, in accordance with subparagraph (B), whether 
                the covered area is making progress that is sufficient 
                to enable the covered area to achieve attainment by 
                that deadline.
                    ``(B) Determination of progress.--The Administrator 
                shall not determine under subparagraph (A) that a 
                covered area is making sufficient progress toward 
                achieving attainment for any calendar year unless the 
                Administrator determines, at a minimum, that the 
                covered area has achieved a reduction in the aggregate 
                quantity of VOCs or NO<INF>x</INF> emitted in the 
                covered area for the calendar year that is equal to or 
                greater than the product obtained by multiplying--
                            ``(i) the aggregate quantity, in tons, of 
                        the VOC or NO<INF>x</INF> emission reductions, 
                        respectively, that are required, during the 
                        period beginning on the date of the 
                        determination by the Administrator and ending 
                        on the applicable date referred to in 
                        subparagraph (A), to achieve attainment; by
                            ``(ii) the quotient obtained by dividing--
                                    ``(I) the number of months, rounded 
                                to the nearest month, between the date 
                                of submission of the State 
                                implementation plan applicable to the 
                                covered area and the date of the 
                                determination by the Administrator; by
                                    ``(II) the number of months, 
                                rounded to the nearest month, between 
                                the date of submission of that State 
                                implementation plan and the applicable 
                                attainment date referred to in 
                                subparagraph (A).
                    ``(C) Imposition of penalties.--If the 
                Administrator determines under this paragraph that a 
                covered area is not making sufficient progress to 
                enable the covered area to achieve attainment by the 
                applicable deadline referred to in subparagraph (A), 
                the Administrator shall--
                            ``(i) for the first calendar year for which 
                        the determination is made, impose on each major 
                        stationary source located in the covered area a 
                        penalty in an amount that is equal to 10 
                        percent of the amount of the fee that, based on 
                        whether the major stationary source is located 
                        in a Serious, Severe, or Extreme Area, would be 
                        paid by the major stationary source under 
                        paragraph (2)(B) for failure to meet a national 
                        primary ambient air quality standard for ozone 
                        by the deadline referred to in subparagraph 
                        (A); and
                            ``(ii) for each subsequent calendar year 
                        until the deadline referred to in subparagraph 
                        (A)--
                                    ``(I) reevaluate the progress being 
                                made by the covered area toward 
                                achieving attainment by the deadline 
                                referred to in subparagraph (A); and
                                    ``(II) if the Administrator 
                                determines that the covered area is not 
                                making sufficient progress, impose on 
                                each major stationary source located in 
                                the covered area a penalty in an amount 
                                that is equal to the sum of the penalty 
                                imposed on the same class (with respect 
                                to location in a Serious, Severe, or 
                                Extreme Area) of major stationary 
                                source under clause (i) and the product 
                                obtained by multiplying--
                                            ``(aa) 5 percent of the fee 
                                        that, based on whether the 
                                        major stationary source is 
                                        located in a Serious, Severe, 
                                        or Extreme Area, would be paid 
                                        by the major stationary source 
                                        under paragraph (2)(B) for 
                                        failure to meet a national 
                                        primary ambient air quality 
                                        standard for ozone by the 
                                        deadline referred to in 
                                        subparagraph (A); and
                                            ``(bb) the number of 
                                        calendar years for which the 
                                        covered area has been 
                                        previously determined not to 
                                        have made sufficient progress 
                                        under this paragraph as of the 
                                        date of the determination by 
                                        the Administrator (excluding 
                                        the determination for the 
                                        current calendar year).
                    ``(D) Suspension of penalties.--If the 
                Administrator determines under this paragraph that a 
                covered area that was determined not to be making 
                sufficient progress toward attainment under this 
                paragraph for a preceding calendar year is making 
                sufficient progress toward attainment for the current 
                calendar year, the Administrator shall suspend the 
                imposition of penalties on major stationary sources 
                located in the covered area for the current calendar 
                year.''.
    (b) Particulate Matter.--Section 188 of the Clean Air Act (42 
U.S.C. 7513) is amended by adding at the end the following:
    ``(g) Particulate Matter Attainment in Covered Areas.--
            ``(1) Definitions.--In this subsection:
                    ``(A) Attainment year.--The term `attainment year', 
                with respect to a covered area, means the calendar year 
                during which the covered area is required to attain the 
                standard for PM<INF>2.5</INF> described in the final 
                rules.
                    ``(B) Baseline quantity.--The term `baseline 
                quantity' means, for any attainment year, the lesser 
                of--
                            ``(i) the quantity of actual 
                        PM<INF>2.5</INF> emissions of a stationary 
                        source; or
                            ``(ii)(I) the quantity of PM<INF>2.5</INF> 
                        emissions allowed under a permit applicable to 
                        a stationary source; or
                            ``(II) if no such permit has been issued 
                        for the attainment year, the quantity of those 
                        emissions allowed under the applicable State 
                        implementation plan during the attainment year.
                    ``(C) Covered area.--The term `covered area' has 
                the meaning given the term in section 179(e).
                    ``(D) Final rules.--The term `final rules' means--
                            ``(i) the final rule entitled `Air Quality 
                        Designations and Classifications for the Fine 
                        Particles (PM2.5) National Ambient Air Quality 
                        Standards' (70 Fed. Reg. 944 (January 5, 
                        2005)); and
                            ``(ii) the final version of the proposed 
                        rule entitled `National Ambient Air Quality 
                        Standards for Particulate Matter, Part II' (71 
                        Fed. Reg. 2620 (January 17, 2006)).
                    ``(E) PM2.5.--The term `PM<INF>2.5</INF>' means 
                particulate matter the aerodynamic diameter of which is 
                less than or equal to 2.5 micrometers.
            ``(2) Implementation plan revision.--
                    ``(A) In general.--Each implementation plan 
                revision required under section 110 shall--
                            ``(i) provide that, if the area to which 
                        the plan revision applies is a covered area, 
                        each major stationary source that emits 
                        PM<INF>2.5</INF> and that is located in the 
                        covered area shall pay to the Administrator a 
                        fee in an amount calculated under subparagraph 
                        (B) as a penalty for the failure to attain the 
                        standard for PM<INF>2.5</INF> in the final 
                        rules by the applicable attainment date 
                        specified in the final rules; and
                            ``(ii) include procedures for the 
                        assessment and collection of those fees.
                    ``(B) Amount of fee.--The amount of a fee paid 
                under this subsection for each ton of PM<INF>2.5</INF> 
                emitted by a major stationary source in a covered area 
                in nonattainment during a calendar year in excess of 70 
                percent of the baseline quantity shall be, as adjusted 
                annually in accordance with section 502(b)(3)(B)(v) 
                (relating to inflation adjustment), $50,000.
            ``(3) Penalties for failure to make progress toward 
        attainment in covered areas.--
                    ``(A) In general.--Upon approval of a State 
                implementation plan that covers a covered area, and 
                annually thereafter until the applicable deadline by 
                which the covered area is required to achieve 
                attainment, as specified in the final rules, the 
                Administrator shall determine, in accordance with 
                subparagraph (B), whether the covered area is making 
                progress that is sufficient to enable the covered area 
                to achieve attainment by that deadline.
                    ``(B) Determination of progress.--The Administrator 
                shall not determine under subparagraph (A) that a 
                covered area is making sufficient progress toward 
                achieving attainment for any calendar year unless the 
                Administrator determines, at a minimum, that the 
                covered area has achieved a reduction in the aggregate 
                quantity of PM<INF>2.5</INF> emitted in the covered 
                area for the calendar year that is equal to or greater 
                than the product obtained by multiplying--
                            ``(i) the aggregate quantity, in tons, of 
                        the PM<INF>2.5</INF> emission reductions that 
                        are required, during the period beginning on 
                        the date of the determination by the 
                        Administrator and ending on the applicable date 
                        referred to in subparagraph (A), to achieve 
                        attainment; by
                            ``(ii) the quotient obtained by dividing--
                                    ``(I) the number of months, rounded 
                                to the nearest month, between the date 
                                of submission of the State 
                                implementation plan applicable to the 
                                covered area and the date of the 
                                determination by the Administrator; by
                                    ``(II) the number of months, 
                                rounded to the nearest month, between 
                                the date of submission of that State 
                                implementation plan and the applicable 
                                attainment date referred to in 
                                subparagraph (A).
                    ``(C) Imposition of penalties.--If the 
                Administrator determines under this paragraph that a 
                covered area is not making sufficient progress to 
                enable the covered area to achieve attainment by the 
                applicable deadline referred to in subparagraph (A), 
                the Administrator shall--
                            ``(i) for the first calendar year for which 
                        the determination is made, impose on each major 
                        stationary source located in the covered area a 
                        penalty in an amount that is equal to 10 
                        percent of the amount of the fee that would be 
                        paid by the major stationary source under 
                        paragraph (2)(B) for failure to meet a national 
                        primary ambient air quality standard for 
                        PM<INF>2.5</INF> by the deadline referred to in 
                        subparagraph (A); and
                            ``(ii) for each subsequent calendar year 
                        until the deadline referred to in subparagraph 
                        (A)--
                                    ``(I) reevaluate the progress being 
                                made by the covered area toward 
                                achieving attainment by the deadline 
                                referred to in subparagraph (A); and
                                    ``(II) if the Administrator 
                                determines that the covered area is not 
                                making sufficient progress, impose on 
                                each major stationary source located in 
                                the covered area a penalty in an amount 
                                that is equal to the sum of the penalty 
                                imposed on the same class of major 
                                stationary source under clause (i) and 
                                the product obtained by multiplying--
                                            ``(aa) 5 percent of the fee 
                                        that would be paid by the major 
                                        stationary source under 
                                        paragraph (2)(B) for failure to 
                                        meet a national primary ambient 
                                        air quality standard for 
                                        PM<INF>2.5</INF> by the 
                                        deadline referred to in 
                                        subparagraph (A); and
                                            ``(bb) the number of 
                                        calendar years for which the 
                                        covered area has been 
                                        previously determined not to 
                                        have made sufficient progress 
                                        under this paragraph as of the 
                                        date of the determination by 
                                        the Administrator (excluding 
                                        the determination for the 
                                        current calendar year).
                    ``(D) Suspension of penalties.--If the 
                Administrator determines under this paragraph that a 
                covered area that was determined not to be making 
                sufficient progress toward attainment under this 
                paragraph for a preceding calendar year is making 
                sufficient progress toward attainment for the current 
                calendar year, the Administrator shall suspend the 
                imposition of penalties on major stationary sources 
                located in the covered area for the current calendar 
                year.''.
                                 <all>