Health and Safety Code
SUBTITLE C. AIR QUALITY
CHAPTER 382. CLEAN AIR ACT
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 382.001. Short Title.
This chapter may be cited as the Texas Clean Air Act.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 382.002. Policy and Purpose.
(a) The policy of this state and the purpose of this chapter
are to safeguard the state's air resources from pollution by
controlling or abating air pollution and emissions of air
contaminants, consistent with the protection of public health,
general welfare, and physical property, including the esthetic
enjoyment of air resources by the public and the maintenance of
adequate visibility.
(b) It is intended that this chapter be vigorously enforced and
that violations of this chapter or any rule or order of the Texas
Natural Resource Conservation Commission result in expeditious
initiation of enforcement actions as provided by this chapter.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.139, eff. Sept.
1, 1995.
Sec. 382.003. Definitions.
In this chapter:
(1) "Administrator" means the Administrator of the United
States Environmental Protection Agency.
(2) "Air contaminant" means particulate matter, radioactive
material, dust, fumes, gas, mist, smoke, vapor, or odor,
including any combination of those items, produced by processes
other than natural.
(3) "Air pollution" means the presence in the atmosphere of
one or more air contaminants or combination of air contaminants
in such concentration and of such duration that:
(A) are or may tend to be injurious to or to adversely
affect human health or welfare, animal life, vegetation, or
property; or
(B) interfere with the normal use or enjoyment of animal
life, vegetation, or property.
(4) "Commission" means the Texas Natural Resource
Conservation Commission.
(5) "Executive director" means the executive director of the
commission.
(6) "Facility" means a discrete or identifiable structure,
device, item, equipment, or enclosure that constitutes or
contains a stationary source, including appurtenances other
than emission control equipment. A mine, quarry, well test, or
road is not considered to be a facility.
(7) "Federal source" means a facility, group of facilities,
or other source that is subject to the permitting requirements
of Title IV or V of the federal Clean Air Act Amendments of
1990 (Pub.L. No. 101-549) and includes:
(A) an affected source as defined by Section 402 of the
federal Clean Air Act (42 U.S.C. Section 7651a) as added by
Section 401 of the federal Clean Air Act Amendments of 1990
(Pub.L. No. 101-549);
(B) a major source as defined by Title III of the
federal Clean Air Act Amendments of 1990 (Pub.L. No.
101-549);
(C) a major source as defined by Title V of the federal
Clean Air Act Amendments of 1990 (Pub.L. No. 101-549);
(D) a source subject to the standards or regulations
under Section 111 or 112 of the federal Clean Air Act (42
U.S.C. Sections 7411 and 7412);
(E) a source required to have a permit under Part C or D
of Title I of the federal Clean Air Act (42 U.S.C. Sections
7470 et seq. and 7501 et seq.);
(F) a major stationary source or major emitting facility
under Section 302 of the federal Clean Air Act (42 U.S.C.
Section 7602); and
(G) any other stationary source in a category designated
by the United States Environmental Protection Agency as
subject to the permitting requirements of Title V of the
federal Clean Air Act Amendments of 1990 (Pub.L. No.
101-549).
(8) "Local government" means a health district established
under Chapter 121, a county, or a municipality.
(9) "Modification of existing facility" means any physical
change in, or change in the method of operation of, a facility
in a manner that increases the amount of any air contaminant
emitted by the facility into the atmosphere or that results in
the emission of any air contaminant not previously emitted.
The term does not include:
(A) insignificant increases in the amount of any air
contaminant emitted that is authorized by one or more
commission exemptions;
(B) insignificant increases at a permitted facility;
(C) maintenance or replacement of equipment components
that do not increase or tend to increase the amount or
change the characteristics of the air contaminants emitted
into the atmosphere;
(D) an increase in the annual hours of operation unless
the existing facility has received a preconstruction permit
or has been exempted, pursuant to Section 382.057, from
preconstruction permit requirements;
(E) a physical change in, or change in the method of
operation of, a facility that does not result in a net
increase in allowable emissions of any air contaminant and
that does not result in the emission of any air contaminant
not previously emitted, provided that the facility:
(i) has received a preconstruction permit or
permit amendment or has been exempted pursuant to Section 382.057
from preconstruction permit requirements no earlier than 120
months before the change will occur; or
(ii) uses, regardless of whether the facility
has received a permit, an air pollution control method that is at
least as effective as the best available control technology,
considering technical practicability and economic reasonableness,
that the board required or would have required for a facility of
the same class or type as a condition of issuing a permit or
permit amendment 120 months before the change will occur;
(F) a physical change in, or change in the method of
operation of, a facility where the change is within the
scope of a flexible permit; or
(G) a change in the method of operation of a natural gas
processing, treating, or compression facility connected to
or part of a natural gas gathering or transmission pipeline
which does not result in an annual emission rate of a
pollutant in excess of the volume emitted at the maximum
designed capacity, provided that the facility is one for
which:
(i) construction or operation started on or
before September 1, 1971, and at which either no modification has
occurred after September 1, 1971, or at which modifications have
occurred only pursuant to standard exemptions; or
(ii) construction started after September 1,
1971, and before March 1, 1972, and which registered in
accordance with Section 382.060 as that section existed prior to
September 1, 1991.
(10) "Person" means an individual, corporation,
organization, government or governmental subdivision or agency,
business trust, partnership, association, or any other legal
entity.
(11) "Select-use technology" means a technology that
involves simultaneous combustion of natural gas with other
fuels in fossil fuel-fired boilers. The term includes
cofiring, gas reburn, and enhanced gas reburn/sorbent
injection.
(12) "Source" means a point of origin of air contaminants,
whether privately or publicly owned or operated.
(13) "Well test" means the testing of an oil or gas well for
a period of time less than 72 hours that does not constitute a
major source or major modification under any provision of the
federal Clean Air Act (42 U.S.C. Section 7401 et seq.).
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1991, 72nd Leg., ch. 14, Sec. 135, eff. Sept. 1,
1991; Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 2.01, eff.
Sept. 1, 1991.
Amended by Acts 1993, 73rd Leg., ch. 485, Sec. 4, eff. June 9,
1993; Acts 1995, 74th Leg., ch. 76, Sec. 11.140, eff. Sept. 1,
1995; Acts 1995, 74th Leg., ch. 150, Sec. 1, eff. May 19, 1995.
SUBCHAPTER B. POWERS AND DUTIES OF COMMISSION
Sec. 382.011. General Powers and Duties.
(a) The commission shall:
(1) administer this chapter;
(2) establish the level of quality to be maintained in the
state's air; and
(3) control the quality of the state's air.
(b) The commission shall seek to accomplish the purposes of this
chapter through the control of air contaminants by all practical
and economically feasible methods.
(c) The commission has the powers necessary or convenient to
carry out its responsibilities.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.143, eff. Sept.
1, 1995.
Sec. 382.012. State Air Control Plan.
The commission shall prepare and develop a general,
comprehensive plan for the proper control of the state's air.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.143, eff. Sept.
1, 1995.
Sec. 382.013. Air Quality Control Regions.
The commission may designate air quality control regions based
on jurisdictional boundaries, urban-industrial concentrations,
and other factors, including atmospheric areas, necessary to
provide adequate implementation of air quality standards.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.143, eff. Sept.
1, 1995.
Sec. 382.014. Emission Inventory.
The commission may require a person whose activities cause
emissions of air contaminants to submit information to enable the
commission to develop an inventory of emissions of air
contaminants in this state.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.143, eff. Sept.
1, 1995.
Sec. 382.0145. Clean Fuel Incentive Surcharge.
(a) The commission shall levy a clean fuel incentive surcharge
of 20 cents per MMBtu on fuel oil used between April 15 and
October 15 of each year in an industrial or utility boiler that
is:
(1) capable of using natural gas; and
(2) located in a consolidated metropolitan statistical area
or metropolitan statistical area with a population of 350,000
or more that has not met federal ambient air quality standards
for ozone.
(b) The commission may not levy the clean fuel incentive
surcharge on:
(1) waste oils, used oils, or hazardous waste-derived fuels
burned for purposes of energy recovery or disposal, if the
commission or the United States Environmental Protection Agency
approves or permits the burning;
(2) fuel oil used during:
(A) any period of full or partial natural gas
curtailment;
(B) any period when there is a failure to deliver
sufficient quantities of natural gas to satisfy contractual
obligations to the purchaser; or
(C) a catastrophic event as defined by Section 382.063;
(3) fuel oil used between April 15 and October 15 in
equipment testing or personnel training up to an aggregate of
the equivalent of 48 hours full-load operation; or
(4) any firm engaged in fixed price contracts with public
works agencies for contracts entered into before August 28,
1989.
Added by Acts 1991, 72nd Leg., ch. 14, Sec. 136, eff. Sept. 1,
1991.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.143, eff. Sept.
1, 1995.
Sec. 382.015. Power to Enter Property.
(a) A member, employee, or agent of the commission may enter
public or private property, other than property designed for and
used exclusively as a private residence housing not more than
three families, at a reasonable time to inspect and investigate
conditions relating to emissions of air contaminants to or the
concentration of air contaminants in the atmosphere.
(b) A member, employee, or agent who enters private property
that has management in residence shall:
(1) notify the management, or the person then in charge, of
the member's, employee's, or agent's presence; and
(2) show proper credentials.
(c) A member, employee, or agent who enters private property
shall observe that establishment's rules concerning safety,
internal security, and fire protection.
(d) The commission is entitled to the remedies provided by
Sections 382.082-382.085 if a member, employee, or agent is
refused the right to enter public or private property as provided
by this section.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.144, eff. Sept.
1, 1995.
Sec. 382.016. Monitoring Requirements; Examination of Records.
(a) The commission may prescribe reasonable requirements for:
(1) measuring and monitoring the emissions of air
contaminants from a source or from an activity causing or
resulting in the emission of air contaminants subject to the
commission's jurisdiction under this chapter; and
(2) the owner or operator of the source to make and maintain
records on the measuring and monitoring of emissions.
(b) A member, employee, or agent of the commission may examine
during regular business hours any records or memoranda relating
to the operation of any air pollution or emission control
equipment or facility, or relating to emission of air
contaminants. This subsection does not authorize the examination
of records or memoranda relating to the operation of equipment or
a facility on property designed for and used exclusively as a
private residence housing not more than three families.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.145, eff. Sept.
1, 1995.
Sec. 382.017. Rules.
(a) The commission may adopt rules. The commission shall hold
a public hearing before adopting a rule consistent with the
policy and purposes of this chapter.
(b) If the rule will have statewide effect, notice of the date,
time, place, and purpose of the hearing shall be published one
time at least 20 days before the scheduled date of the hearing in
at least three newspapers, the combined circulation of which
will, in the commission's judgment, give reasonable circulation
throughout the state. If the rule will have effect in only a
part of the state, the notice shall be published one time at
least 20 days before the scheduled date of the hearing in a
newspaper of general circulation in the area to be affected.
(c) Any person may appear and be heard at a hearing to adopt a
rule. The executive director shall make a record of the names
and addresses of the persons appearing at the hearing. A person
heard or represented at the hearing or requesting notice of the
commission's action shall be sent by mail written notice of the
commission's action.
(d) Subsections (a) and (b) notwithstanding, the commission may
adopt rules consistent with Chapter 2001, Government Code, if the
commission determines that the need for expeditious adoption of
proposed rules requires use of those procedures.
(e) The terms and provisions of a rule adopted by the
commission may differentiate among particular conditions,
particular sources, and particular areas of the state. In
adopting a rule, the commission shall recognize that the quantity
or characteristic of air contaminants or the duration of their
presence in the atmosphere may cause a need for air control in
one area of the state but not in other areas. In this
connection, the commission shall consider:
(1) the factors found by it to be proper and just, including
existing physical conditions, topography, population, and
prevailing wind direction and velocity; and
(2) the fact that a rule and the degrees of conformance with
the rule that may be proper for an essentially residential area
of the state may not be proper for a highly developed
industrial area or a relatively unpopulated area.
(f) Except as provided by Sections 382.0171-382.021 or to
comply with federal law or regulations, the commission by rule
may not specify:
(1) a particular method to be used to control or abate air
pollution;
(2) the type, design, or method of installation of equipment
to be used to control or abate air pollution; or
(3) the type, design, method of installation, or type of
construction of a manufacturing process or other kind of
equipment.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1991, 72nd Leg., ch. 14, Sec. 137, eff. Sept. 1,
1991; Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 2.33, eff.
Sept. 1, 1991.
Amended by Acts 1995, 74th Leg., ch. 76, Secs. 5.95(49), 11.145,
eff. Sept. 1, 1995.
Sec. 382.0171. Alternative Fuels and Select-Use Technologies.
(a) In adopting rules, the commission shall encourage and may
allow the use of natural gas and other alternative fuels, as well
as select-use technologies, that will reduce emissions.
(b) Any orders or determinations made under this section must
be consistent with Section 382.024.
Added by Acts 1991, 72nd Leg., ch. 14, Sec. 138, eff. Sept. 1,
1991.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.146, eff. Sept.
1, 1995.
Sec. 382.0172. International Border Areas.
In order to qualify for the exceptions provided by Section 179B
of the federal Clean Air Act (42 U.S.C. Section 7509a), as added
by Section 818 of the federal Clean Air Act Amendments of 1990
(Pub.L. No. 101-549), the commission, in developing rules and
control programs to be included in an implementation plan for an
international border area, shall ensure that the plan or
revision:
(1) meets all requirements applicable to the plan or
revision under Title I of the federal Clean Air Act Amendments
of 1990 (Pub.L. No. 101-549), other than a requirement that the
plan or revision demonstrates attainment and maintenance of the
relevant national ambient air quality standards by the
attainment date specified by the applicable provision of Title
I of the federal Clean Air Act Amendments of 1990 (Pub.L. No.
101-549) or by a regulation adopted under that provision; and
(2) would be adequate to attain and maintain the relevant
national ambient air quality standards by the attainment date
specified by the applicable provision of Title I of the federal
Clean Air Act Amendments of 1990 (Pub.L. No. 101-549) or by a
regulation adopted under that provision, but for emissions
emanating from outside the United States.
Added by Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 2.02, eff.
Sept. 1, 1991.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.147, eff. Sept.
1, 1995.
Sec. 382.018. Outdoor Burning of Waste and Combustible Material.
The commission by rule may control and prohibit the outdoor
burning of waste and combustible material and may include
requirements concerning the particular method to be used to
control or abate the emission of air contaminants resulting from
that burning.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.147, eff. Sept.
1, 1995.
Sec. 382.019. Methods Used to Control and Reduce Emissions From Land
Vehicles.
(a) The commission by rule may provide requirements concerning
the particular method to be used to control and reduce emissions
from engines used to propel land vehicles.
(b) The commission may not require, as a condition precedent to
the initial sale of a vehicle or vehicular equipment, the
inspection, certification, or other approval of any feature or
equipment designed to control emissions from motor vehicles if
that feature or equipment has been certified, approved, or
otherwise authorized under federal law.
(c) The commission or any other state agency may not adopt a
rule requiring the use of Stage II vapor recovery systems that
control motor vehicle refueling emissions at a gasoline
dispensing facility in this state until the United States
Environmental Protection Agency determines that the use of the
system is required for compliance with the federal Clean Air Act
(42 U.S.C. 7401 et seq.), except the commission may adopt rules
requiring such vapor recovery systems installed in nonattainment
areas if it can be demonstrated to be necessary for the
attainment of federal ozone ambient air quality standards or,
following appropriate health studies and in consultation with the
Texas Department of Health, it is determined to be necessary for
the protection of public health.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 2.24, eff.
Sept. 1, 1991.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.147, eff. Sept.
1, 1995.
Sec. 382.0195. Commercial Infectious Waste Incinerators.
(a) The commission shall adopt rules prescribing the most
effective emissions control technology reasonably available to
control emissions of air contaminants from a commercial
infectious waste incinerator.
(b) Rules adopted under this section must require that the
prescribed emissions control technology be installed as soon as
practicable at each commercial infectious waste incinerator.
(c) In this section, "commercial infectious waste incinerator"
means a facility that accepts for incineration infectious waste
generated outside the property boundaries of the facility.
Added by Acts 1991, 72nd Leg., ch. 14, Sec. 139, eff. Sept. 1,
1991.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.148, eff. Sept.
1, 1995.
Sec. 382.020. Control of Emissions From Facilities That Handle Certain
Agricultural Products.
(a) The commission, when it determines that the control of air
pollution is necessary, shall adopt rules concerning the control
of emissions of particulate matter from plants at which grain,
seed, legumes, or vegetable fibers are handled, loaded, unloaded,
dried, manufactured, or processed according to a formula derived
from the process weight of the materials entering the process.
(b) A person affected by a rule adopted under this section may
use:
(1) the process weight method to control and measure the
emissions from the plant; or
(2) any other method selected by that person that the
commission or the executive director, if authorized by the
commission, finds will provide adequate emission control
efficiency and measurement.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.149, eff. Sept.
1, 1995.
Sec. 382.0205. Special Problems Related to Air Contaminant Emissions.
Consistent with applicable federal law, the commission by rule
may control air contaminants as necessary to protect against
adverse effects related to:
(1) acid deposition;
(2) stratospheric changes, including depletion of ozone; and
(3) climatic changes, including global warming.
Added by Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 2.03, eff.
Sept. 1, 1991.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.149, eff. Sept.
1, 1995.
Sec. 382.021. Sampling Methods and Procedures.
(a) The commission may prescribe the sampling methods and
procedures to be used in determining violations of and compliance
with the commission's rules, variances, and orders, including:
(1) ambient air sampling;
(2) stack-sampling;
(3) visual observation; or
(4) any other sampling method or procedure generally
recognized in the field of air pollution control.
(b) The commission may prescribe new sampling methods and
procedures if:
(1) in the commission's judgment, existing methods or
procedures are not adequate to meet the needs and objectives of
the commission's rules, variances, and orders; and
(2) the scientific applicability of the new methods or
procedures can be satisfactorily demonstrated to the
commission.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.149, eff. Sept.
1, 1995.
Sec. 382.022. Investigations.
The executive director may make or require the making of
investigations:
(1) that the executive director considers advisable in
administering this chapter and the commission's rules, orders,
and determinations, including investigations of violations and
general air pollution problems or conditions; or
(2) as requested or directed by the commission.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.149, eff. Sept.
1, 1995.
Sec. 382.023. Orders.
(a) The commission may issue orders and make determinations as
necessary to carry out the purposes of this chapter. Orders
authorized by this chapter may be issued only by the commission
unless expressly provided by this chapter.
(b) If it appears that this chapter or a commission rule,
order, or determination is being violated, the commission, or the
executive director if authorized by the commission or this
chapter, may proceed under Sections 382.082-382.084, or hold a
public hearing and issue orders on the alleged violation, or take
any other action authorized by this chapter as the facts may
warrant.
(c) In addition to the notice required by Chapter 2001,
Government Code, the commission or the executive director shall
give notice to such other interested persons as the commission or
the executive director may designate.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1995, 74th Leg., ch. 76, Secs. 5.95(49), 11.149,
eff. Sept. 1, 1995.
Sec. 382.024. Factors in Issuing Orders and Determinations.
In issuing an order and making a determination, the commission
shall consider the facts and circumstances bearing on the
reasonableness of emissions, including:
(1) the character and degree of injury to or interference
with the public's health and physical property;
(2) the source's social and economic value;
(3) the question of priority of location in the area
involved; and
(4) the technical practicability and economic reasonableness
of reducing or eliminating the emissions resulting from the
source.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.149, eff. Sept.
1, 1995.
Sec. 382.025. Orders Relating to Controlling Air Pollution.
(a) If the commission determines that air pollution exists, the
commission may order any action indicated by the circumstances to
control the condition.
(b) The commission shall grant to the owner or operator of a
source time to comply with its orders as provided for by
commission rules. Those rules must provide for time for
compliance gauged to the general situations that the hearings on
proposed rules indicate are necessary.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.149, eff. Sept.
1, 1995.
Sec. 382.026. Orders Issued Under Emergencies.
The commission may issue an order under an air emergency under
Section 5.514, Water Code.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.150, eff. Sept.
1, 1995; Acts 1997, 75th Leg., ch. 1072, Sec. 41, eff. Sept. 1,
1997.
Sec. 382.027. Prohibition on Commission Action Relating to Air Conditions
Existing Solely in Commercial and Industrial Facilities.
(a) The commission may not adopt a rule, determination, or
order that:
(1) relates to air conditions existing solely within
buildings and structures used for commercial and industrial
plants, works, or shops if the source of the offending air
contaminants is under the control of the person who owns or
operates the plants, works, or shops; or
(2) affects the relations between employers and their
employees relating to or arising out of an air condition from a
source under the control of the person who owns or operates the
plants, works, or shops.
(b) This section does not limit or restrict the authority or
powers granted to the commission under Sections 382.018 and
382.021.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.151, eff. Sept.
1, 1995.
Sec. 382.028. Variances.
(a) This chapter does not prohibit the granting of a variance.
(b) A variance is an exceptional remedy that may be granted
only on demonstration that compliance with a provision of this
chapter or commission rule or order results in an arbitrary and
unreasonable taking of property.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.152, eff. Sept.
1, 1995.
Sec. 382.029. Hearing Powers.
The commission may call and hold hearings, administer oaths,
receive evidence at a hearing, issue subpoenas to compel the
attendance of witnesses and the production of papers and
documents related to a hearing, and make findings of fact and
decisions relating to administering this chapter or the rules,
orders, or other actions of the commission.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.153, eff. Sept.
1, 1995.
Sec. 382.0291. Public Hearing Procedures.
(a) Any statements, correspondence, or other form of oral or
written communication made by a member of the legislature to a
commission official or employee during a public hearing conducted
by the commission shall become part of the record of the hearing,
regardless of whether the member is a party to the hearing.
(b) When a public hearing conducted by the commission is
required by law to be conducted at a certain location, the
commission shall determine the place within that location at
which the hearing will be conducted. In making that
determination, the commission shall consider the cost of
available facilities and the adequacy of a facility to
accommodate the type of hearing and anticipated attendance.
(c) The commission shall conduct at least one session of a
public hearing after normal business hours on request by a party
to the hearing or any person who desires to attend the hearing.
(d) An applicant for a license, permit, registration, or
similar form of permission required by law to be obtained from
the commission may not amend the application after the 31st day
before the date on which a public hearing on the application is
scheduled to begin. If an amendment of an application would be
necessary within that period, the applicant shall resubmit the
application to the commission and must again comply with notice
requirements and any other requirements of law or commission rule
as though the application were originally submitted to the
commission on that date.
(e) If an application for a license, permit, registration, or
similar form of permission required by law is pending before the
commission at a time when changes take effect concerning notice
requirements imposed by law for that type of application, the
applicant must comply with the new notice requirements.
Added by Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 9.02, eff.
Sept. 1, 1991.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.153, eff. Sept.
1, 1995.
Sec. 382.030. Delegation of Hearing Powers.
(a) The commission may delegate the authority to hold hearings
called by the commission under this chapter to:
(1) one or more commission members;
(2) the executive director; or
(3) one or more commission employees.
(b) Except for hearings required to be held before the
commission under Section 5.504, Water Code, the commission may
authorize the executive director to:
(1) call and hold a hearing on any subject on which the
commission may hold a hearing; and
(2) delegate the authority to hold any hearing called by the
executive director to one or more commission employees.
(c) The commission may establish the qualifications for
individuals to whom the commission or the executive director
delegates the authority to hold hearings.
(d) An individual holding a hearing under this section may
administer oaths and receive evidence at the hearing and shall
report the hearing in the manner prescribed by the commission.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.153, eff. Sept.
1, 1995; Acts 1997, 75th Leg., ch. 1072, Sec. 42, eff. Sept. 1,
1997.
Sec. 382.031. Notice of Hearings.
(a) Notice of a hearing under this chapter shall be published
at least once in a newspaper of general circulation in the
municipality in which the facility is located or is proposed to
be located or in the municipality nearest to the location or
proposed location of the facility. The notice must be published
not less than 30 days before the date set for the hearing.
(b) Notice of the hearing must describe briefly and in summary
form the purpose of the hearing and the date, time, and place of
the hearing.
(c) If notice of the hearing is required by this chapter to be
given to a person, the notice shall be served personally or
mailed to the person at the person's most recent address known to
the commission not less than 30 days before the date set for the
hearing. If the party is not an individual, the notice may be
given to an officer, agent, or legal representative of the party.
(d) The hearing body shall conduct the hearing at the time and
place stated in the notice. The hearing body may continue the
hearing from time to time and from place to place without the
necessity of publishing, serving, mailing, or otherwise issuing
new notice. If a hearing is continued and a time and place for
the hearing to reconvene are not publicly announced by the
hearing body at the hearing before it is recessed, a notice of
any further setting of the hearing shall be served personally or
mailed in the manner prescribed by Subsection (c) at a reasonable
time before the new setting, but it is not necessary to publish a
newspaper notice of the new setting. In this subsection,
"hearing body" means the individual or individuals that hold a
hearing under this section.
(e) This section applies to all hearings held under this
chapter except as otherwise specified by Section 382.017.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 2.04, eff.
Sept. 1, 1991.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.154, eff. Sept.
1, 1995; Acts 1997, 75th Leg., ch. 1072, Sec. 43, eff. Sept. 1,
1997.
Sec. 382.032. Appeal of Commission Action.
(a) A person affected by a ruling, order, decision, or other
act of the commission or of the executive director, if an appeal
to the commission is not provided, may appeal the action by
filing a petition in a district court of Travis County.
(b) The petition must be filed within 30 days after the date of
the commission's or executive director's action or, in the case
of a ruling, order, or decision, within 30 days after the
effective date of the ruling, order, or decision. If the appeal
relates to the commission's failure to take final action on an
application for a federal operating permit, a reopening of a
federal operating permit, a revision to a federal operating
permit, or a permit renewal application for a federal operating
permit in accordance with Section 382.0542(b), the petition may
be filed at any time before the commission or the executive
director takes final action.
(c) Service of citation on the commission must be accomplished
within 30 days after the date on which the petition is filed.
Citation may be served on the executive director or any
commission member.
(d) The plaintiff shall pursue the action with reasonable
diligence. If the plaintiff does not prosecute the action within
one year after the date on which the action is filed, the court
shall presume that the action has been abandoned. The court
shall dismiss the suit on a motion for dismissal made by the
attorney general unless the plaintiff, after receiving due
notice, can show good and sufficient cause for the delay.
(e) In an appeal of an action of the commission or executive
director other than cancellation or suspension of a variance, the
issue is whether the action is invalid, arbitrary, or
unreasonable.
(f) An appeal of the cancellation or suspension of a variance
must be tried in the same manner as appeals from the justice
court to the county court.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1993, 73rd Leg., ch. 485, Sec. 5, eff. June 9,
1993; Acts 1995, 74th Leg., ch. 76, Sec. 11.155, eff. Sept. 1,
1995.
Sec. 382.033. Contracts; Instruments.
The commission may execute contracts and instruments that are
necessary or convenient to perform its powers or duties.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.155, eff. Sept.
1, 1995.
Sec. 382.0335. Air Control Account.
(a) The commission may apply for, solicit, contract for,
receive, or accept money from any source to carry out its duties
under this chapter.
(b) Money received by the commission under this section shall
be deposited to the credit of the air control account, an account
in the general revenue fund. The commission may use money in the
account for any necessary expenses incurred in carrying out
commission duties under this chapter.
Added by Acts 1997, 75th Leg., ch. 333, Sec. 72, eff. Sept. 1,
1997.
Sec. 382.034. Research and Investigations.
The commission shall conduct or require any research and
investigations it considers advisable and necessary to perform
its duties under this chapter.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.155, eff. Sept.
1, 1995.
Sec. 382.035. Memorandum of Understanding.
The commission by rule shall adopt any memorandum of
understanding between the commission and another state agency.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.155, eff. Sept.
1, 1995.
Sec. 382.036. Cooperation and Assistance.
The commission shall:
(1) encourage voluntary cooperation by persons or affected
groups in restoring and preserving the purity of the state's
air;
(2) encourage and conduct studies, investigations, and
research concerning air quality control;
(3) collect and disseminate information on air quality
control;
(4) advise, consult, and cooperate with other state
agencies, political subdivisions of the state, industries,
other states, the federal government, and interested persons or
groups concerning matters of common interest in air quality
control; and
(5) represent the state in all matters relating to air
quality plans, procedures, or negotiations for interstate
compacts.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.155, eff. Sept.
1, 1995.
Sec. 382.0365. Small Business Stationary Source Assistance Program.
(a) The commission shall establish a small business stationary
source technical and environmental compliance assistance program.
(b) The program shall include:
(1) mechanisms to develop, collect, and coordinate
information about compliance methods and technologies for small
business stationary sources and to encourage cooperation
between those sources and other persons to achieve compliance
with applicable air quality laws;
(2) mechanisms to assist small business stationary sources
with pollution prevention and the prevention and detection of
accidental releases, including information about alternative
technologies, process changes, products, and methods of
operation to reduce air pollution;
(3) an ombudsman to help small business stationary sources
meet the requirements of the federal Clean Air Act Amendments
of 1990 (Pub.L. No. 101-549);
(4) a compliance assistance program to help small business
stationary sources identify the requirements for and obtain
required permits in a timely and efficient manner;
(5) notification procedures to assure that small business
stationary sources receive notice of their rights and
obligations under the federal Clean Air Act Amendments of 1990
(Pub.L. No. 101-549) in time to identify applicable
requirements and evaluate and implement appropriate compliance
methods;
(6) auditing services or referrals for small business
stationary source operations to determine compliance with the
federal Clean Air Act Amendments of 1990 (Pub.L. No. 101-549);
and
(7) procedures for considering a request by a small business
stationary source to modify work practices, technological
compliance methods, or an implementation schedule requirement
that precedes a compliance date, taking into account the
technological and financial capability of that source.
(c) The program shall include a compliance advisory panel that
consists of the following seven members:
(1) two members who are not owners or representatives of
owners of small business stationary sources, selected by the
governor to represent the public;
(2) two members who are owners or who represent owners of
small business stationary sources, selected by the speaker of
the house of representatives;
(3) two members who are owners or who represent owners of
small business stationary sources, selected by the lieutenant
governor; and
(4) one member selected by the chairman of the commission to
represent the commission.
(d) The compliance advisory panel shall:
(1) give advisory opinions on the effectiveness of the
program, the difficulties of implementing the program, and the
incidence and severity of enforcement;
(2) report periodically to the administrator regarding the
program's compliance with requirements of the Paperwork
Reduction Act of 1980 (Pub.L. No. 96-511), the Regulatory
Flexibility Act (5 U.S.C. Section 601 et seq.), and the Equal
Access to Justice Act (Pub.L. No. 96-481);
(3) review information the program provides to small
business stationary sources to assure the information is
understandable to nonexperts; and
(4) distribute opinions, reports, and information developed
by the panel.
(e) The commission shall enter into a memorandum of
understanding with the Texas Department of Commerce to
coordinate assistance to any small business in applying for
permits from the commission .
(f) The commission may adopt rules reasonably necessary to
implement this section in compliance with Section 507 of the
federal Clean Air Act (42 U.S.C. Section 7661f), as added by
Section 501 of the federal Clean Air Act Amendments of 1990
(Pub.L. No. 101-549) and regulations adopted under that Act.
(g) In this section:
(1) "Program" means the small business stationary source
technical and environmental compliance assistance program.
(2) "Small business stationary source" has the meaning
assigned by Section 507(c) of the federal Clean Air Act (42
U.S.C. Section 7661f), as added by Section 501 of the federal
Clean Air Act Amendments of 1990 (Pub.L. No. 101-549).
Added by Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 2.05, eff.
Sept. 1, 1991.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.156, eff. Sept.
1, 1995.
Sec. 382.037. Vehicle Emissions Inspection and Maintenance Program.
(a) The commission by resolution may request the Public Safety
Commission to establish a vehicle emissions inspection and
maintenance program under Subchapter F, Chapter 548,
Transportation Code, in accordance with this section and rules
adopted under this section. The commission by rule may
establish, implement, and administer a program requiring
emissions-related inspections of motor vehicles to be performed
at inspection facilities consistent with the requirements of the
federal Clean Air Act (42 U.S.C. Section 7401 et seq.).
(a-1) Repealed by Acts 1997, 75th Leg., ch. 1069, Sec. 19(1),
eff. June 19, 1997.
(b) The commission by rule may require emissions-related
inspection and maintenance of land vehicles, including testing
exhaust emissions, examining emission control devices and
systems, verifying compliance with applicable standards, and
other requirements as provided by federal law or regulation.
(c) If the program is established under this section, the
commission :
(1) shall adopt vehicle emissions inspection and maintenance
requirements for certain areas as required by federal law or
regulation; and
(2) may adopt vehicle emissions inspection and maintenance
requirements for counties not subject to a specific federal
requirement in response to a formal request by resolutions
adopted by the county and the most populous municipality within
the county according to the most recent federal decennial
census.
(d) On adoption of a resolution by the commission and after
proper notice, the Department of Public Safety of the State of
Texas shall implement a system that requires, as a condition of
obtaining a safety inspection certificate issued under Subchapter
C, Chapter 548, Transportation Code , in a county that is
included in a vehicle emissions inspection and maintenance
program under Subchapter F of that chapter, that the vehicle,
unless the vehicle is not covered by the system, be annually or
biennially inspected under the vehicle emissions inspection and
maintenance program as required by the state's air quality state
implementation plan. The Department of Public Safety shall
implement such a system when it is required by any provision of
federal or state law, including any provision of the state's air
quality state implementation plan.
(e) The commission may assess fees for vehicle
emissions-related inspections performed at inspection or
reinspection facilities authorized and licensed by the commission
in amounts reasonably necessary to recover the costs of
developing, administering, evaluating, and enforcing the vehicle
emissions inspection and maintenance program. If the program
relies on privately operated or contractor-operated inspection or
reinspection stations, an appropriate portion of the fee as
determined by commission rule may be retained by the station
owner or operator to recover the cost of performing the
inspections and provide a reasonable margin of profit. Any
portion of the fee collected by the commission is a Clean Air Act
fee under Section 382.0622.
(f) The commission shall examine the efficacy of annually
inspecting diesel vehicles for compliance with applicable federal
emission standards, compliance with an opacity or other
emissions-related standard established by commission rule, or
both and shall implement that inspection program if the
commission determines the program would minimize emissions. For
purposes of this subsection, a diesel engine not used in a
vehicle registered for use on public highways is not a diesel
vehicle.
(g) The commission may not establish vehicle fuel content
standards to provide for vehicle fuel content for clean motor
vehicle fuels other than those standards promulgated by the
United States Environmental Protection Agency unless specifically
authorized by the legislature or unless it is demonstrated to be
necessary for the attainment of federal ozone ambient air quality
standards or, following appropriate health studies and in
consultation with the Texas Department of Health, it is
determined to be necessary for the protection of public health.
(h) to (j) Repealed by Acts 1995, 74th Leg., ch. 34, Sec. 9(3),
eff. May 2, 1995.
(k) The commission by rule may establish classes of vehicles
that are exempt from vehicle emissions inspections and by rule
may establish procedures to allow and review petitions for the
exemption of individual vehicles, according to criteria
established by commission rule. Rules adopted by the commission
under this subsection must be consistent with federal law. The
commission by rule may establish fees to recover the costs of
administering this subsection. Fees collected under this
subsection shall be deposited to the credit of the clean air
account, an account in the general revenue fund, and may be used
only for the purposes of this section.
(l) Repealed by Acts 1995, 74th Leg., ch. 34, Sec. 9(3), eff.
May 2, 1995.
(m) Except as provided by this subsection, a person who sells
or transfers ownership of a motor vehicle for which a vehicle
emissions inspection certificate has been issued is not liable
for the cost of emission control system repairs that are required
for the vehicle subsequently to receive an emissions inspection
certificate. This subsection does not apply to repairs that are
required because emission control equipment or devices on the
vehicle were removed or tampered with before the sale or transfer
of the vehicle.
(n) The commission may conduct audits to determine compliance
with this section.
(o), (p) Repealed by Acts 1995, 74th Leg., ch. 34, Sec. 9(1),
eff. May 2, 1995.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 2.25, eff.
Sept. 1, 1991.
Amended by Acts 1993, 73rd Leg., ch. 547, Sec. 1, eff. Aug. 30,
1993; Acts 1995, 74th Leg., ch. 1, Sec. 1, eff. Jan. 31, 1995;
Acts 1995, 74th Leg., ch. 34, Secs. 1, 9(1), (3), eff. May 1,
1995; Acts 1995, 74th Leg., ch. 76, Sec. 11.157, eff. Sept. 1,
1995; Acts 1997, 75th Leg., ch. 165, Sec. 30.207, eff. Sept. 1,
1997; Acts 1997, 75th Leg., ch. 333, Sec. 73, eff. Sept. 1, 1997;
Acts 1997, 75th Leg., ch. 1069, Sec. 1, eff. June 19, 1997.
Sec. 382.0372. Vehicles Subject to Program; Exemptions.
(a) The inspection and maintenance program applies to any
gasoline-powered vehicle that is:
(1) required to be registered in and is primarily operated
in Dallas, Tarrant, El Paso, or Harris County; and
(2) at least two and less than 25 years old.
(b) In addition to a vehicle described by Subsection (a), the
program applies to:
(1) a vehicle with United States governmental plates
primarily operated in Dallas, Tarrant, El Paso, or Harris
County;
(2) a vehicle operated on a federal facility in Dallas,
Tarrant, El Paso, or Harris County; and
(3) a vehicle primarily operated in Dallas, Tarrant, El
Paso, or Harris County that is exempt from motor vehicle
registration requirements or eligible under Chapter 502,
Transportation Code, to display an "exempt" license plate.
(c) The Department of Public Safety of the State of Texas may
waive program requirements, in accordance with standards adopted
by the commission, for certain vehicles and vehicle owners,
including:
(1) the registered owner of a vehicle who:
(A) cannot afford to comply with the program, based on
reasonable income standards; or
(B) has spent a reasonable amount of money, set by the
commission, to repair the vehicle, without bringing the
vehicle into compliance with emissions standards; and
(2) a vehicle that cannot be brought into compliance with
emissions standards by performing repairs.
(d) The program does not apply to a:
(1) motorcycle;
(2) slow-moving vehicle as defined by Section 547.001,
Transportation Code; or
(3) circus vehicle.
Added by Acts 1997, 75th Leg., ch. 1069, Sec. 2, eff. June 19,
1997.
Sec. 382.0373. Remote Sensing Program Component.
(a) The commission and the Department of Public Safety of the
State of Texas jointly shall develop a program component for
enforcing emissions standards by use of remote or automatic
emissions detection and analysis equipment.
(b) The program component may be employed in any county
designated as a nonattainment area within the meaning of Section
107(d) of the Clean Air Act (42 U.S.C. Section 7407).
Added by Acts 1997, 75th Leg., ch. 1069, Sec. 2, eff. June 19,
1997.
Sec. 382.0374. Inspection Equipment and Procedures.
(a) The commission by rule may adopt:
(1) standards and specifications for motor vehicle emissions
testing equipment;
(2) recordkeeping and reporting procedures; and
(3) measurable emissions standards a vehicle must meet to
pass the inspection.
(b) The Department of Public Safety of the State of Texas by
rule shall adopt:
(1) testing procedures in accordance with motor vehicle
emissions testing equipment specifications; and
(2) procedures for issuing or denying an emissions
inspection certificate.
Added by Acts 1997, 75th Leg., ch. 1069, Sec. 2, eff. June 19,
1997.
Sec. 382.0375. Collection of Data; Report.
(a) The commission and the Department of Public Safety of the
State of Texas may collect inspection and maintenance information
derived from the emissions inspection and maintenance program,
including:
(1) inspection results;
(2) inspection station information;
(3) information regarding vehicles operated on federal
facilities;
(4) vehicle registration information; and
(5) other data the United States Environmental Protection
Agency requires.
(b) The commission shall:
(1) report the information to the United States
Environmental Protection Agency; and
(2) compare the information on inspection results with
registration information for enforcement purposes.
Added by Acts 1997, 75th Leg., ch. 1069, Sec. 2, eff. June 19,
1997.
Sec. 382.038. Inspection Stations; Quality Control Audits.
(a) The Department of Public Safety of the State of Texas by
rule shall adopt standards and procedures for establishing
vehicle emissions inspection stations authorized and licensed by
the state.
(b) A vehicle emissions inspection may be performed at a
decentralized independent inspection station or at a centralized
inspection facility operated or licensed by the state. In
developing the program for vehicle emissions inspections, the
Department of Public Safety shall make all reasonable efforts to
preserve the present decentralized system.
(c) After consultation with the Texas Department of
Transportation, the commission shall require state and local
transportation planning entities designated by the commission to
prepare long-term projections of the combined impact of
significant planned transportation system changes on emissions
and air quality. The projections shall be prepared using air
pollution estimation methodologies established jointly by the
commission and the Texas Department of Transportation. This
subsection does not restrict the Texas Department of
Transportation's function as the transportation planning body for
the state or its role in identifying and initiating specific
transportation-related projects in the state.
(d) The Department of Public Safety may authorize enforcement
personnel or other individuals to remove, disconnect, adjust, or
make inoperable vehicle emissions control equipment, devices, or
systems and to operate a vehicle in the tampered condition in
order to perform a quality control audit of an inspection station
or other quality control activities as necessary to assess and
ensure the effectiveness of the vehicle emissions inspection and
maintenance program.
(e) The Department of Public Safety shall develop a challenge
station program to provide for the reinspection of a motor
vehicle at the option of the owner of the vehicle to ensure
quality control of a vehicle emissions inspection and maintenance
system.
(f) The commission may contract with one or more private
entities to operate a program established under this section.
(g) In addition to other procedures established by the
commission , the commission shall establish procedures by which a
private entity with whom the commission has entered into a
contract to operate a program established under this section may
agree to perform:
(1) testing at a fleet facility or dealership using mobile
test equipment;
(2) testing at a fleet facility or dealership using test
equipment owned by the fleet or dealership but calibrated and
operated by the private entity's personnel; or
(3) testing at a fleet facility or dealership using test
equipment owned and operated by the private entity and
installed at the fleet or dealership facility.
(h) The fee for a test conducted as provided by Subsection (g)
shall be set by the commission in an amount not to exceed twice
the fee otherwise provided by law or by rule of the commission.
An appropriate portion of the fee, as determined by the
commission, may be remitted by the private entity to the fleet
facility or dealership.
Added by Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 2.26, eff.
Sept. 1, 1991.
Amended by Acts 1993, 73rd Leg., ch. 547, Sec. 2, eff. Aug. 30,
1993; Acts 1995, 74th Leg., ch. 34, Sec. 3, eff. May 1, 1995;
Acts 1995, 74th Leg., ch. 76, Sec. 11.158, eff. Sept. 1, 1995;
Acts 1995, 74th Leg., ch. 165, Sec. 22(41), eff. Sept. 1, 1995.
Sec. 382.039. Attainment Program.
(a) The commission shall coordinate with federal, state, and
local transportation planning agencies to develop and implement
transportation programs and other measures necessary to
demonstrate and maintain attainment of national ambient air
quality standards and to protect the public from exposure to
hazardous air contaminants from motor vehicles.
(b) Participating agencies include the Texas Department of
Transportation and metropolitan planning organizations designated
by the governor.
Added by Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 2.26, eff.
Sept. 1, 1991.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.158, eff. Sept.
1, 1995; Acts 1995, 74th Leg., ch. 165, Sec. 22(42), eff. Sept.
1, 1995.
Sec. 382.040. Documents; Public Property.
All information, documents, and data collected by the
commission in performing its duties are state property. Subject
to the limitations of Section 382.041, all commission records are
public records open to inspection by any person during regular
office hours.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Renumbered from Sec. 381.020 and amended by Acts 1993, 73rd Leg.,
ch. 485, Sec. 2, eff. June 9, 1993. Amended by Acts 1995, 74th
Leg., ch. 76, Sec. 11.158, eff. Sept. 1, 1995.
Sec. 382.041. Confidential Information.
(a) Except as provided by Subsection (b), a member, employee,
or agent of the commission may not disclose information submitted
to the commission relating to secret processes or methods of
manufacture or production that is identified as confidential when
submitted.
(b) A member, employee, or agent of the commission may disclose
information confidential under Subsection (a) to a representative
of the United States Environmental Protection Agency on the
request of a representative of that agency if:
(1) at the time of disclosure the member, employee, or agent
notifies the representative that the material has been
identified as confidential when submitted; and
(2) the commission, before the information is disclosed, has
entered into an agreement with the United States Environmental
Protection Agency that ensures that the agency treats
information identified as confidential as though it had been
submitted by the originator of the information with an
appropriate claim of confidentiality under federal law.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Renumbered from Sec. 381.022 and amended by Acts 1993, 73rd Leg.,
ch. 485, Sec. 3, eff. June 9, 1993. Amended by Acts 1995, 74th
Leg., ch. 76, Sec. 11.158, eff. Sept. 1, 1995.
SUBCHAPTER C. PERMITS
Sec. 382.051. Permitting Authority of Commission; Rules.
(a) The commission may issue a permit:
(1) to construct a new facility or modify an existing facility
that may emit air contaminants; or
(2) to operate a federal source.
(b) To assist in fulfilling its authorization provided by
Subsection (a), the commission may issue:
(1) special permits for certain facilities;
(2) a general permit developed by rule for numerous similar
sources subject to Section 382.054;
(3) a standard permit developed by rule for numerous similar
facilities subject to Section 382.0518;
(4) a single federal operating permit or preconstruction permit
for multiple federal sources or facilities located at the same
site; or
(5) other permits as necessary.
(c) The commission may issue a federal operating permit for a
federal source in violation only if the operating permit
incorporates a compliance plan for the federal source as a
condition of the permit.
(d) The commission shall adopt rules as necessary to comply with
changes in federal law or regulations applicable to permits
issued under this chapter.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 2.06, eff.
Sept. 1, 1991.
Amended by Acts 1993, 73rd Leg., ch. 485, Sec. 6, eff. June 9,
1993; Acts 1995, 74th Leg., ch. 76, Sec. 11.159, eff. Sept. 1,
1995.
Sec. 382.0511. Permit Consolidation and Amendment.
(a) The commission may consolidate into a single permit:
(1) any permits, special permits, or exemptions for a
facility or federal source issued by the commission before
December 1, 1991; or
(2) any permit issued by the commission on or after December
1, 1991, with any permits, special permits, or exemptions
issued or qualified for by that date.
(b) Consistent with the rules adopted under Subsection (d) and
the limitations of this chapter, including limitations that apply
to the modification of an existing facility, the commission may
amend, revise, or modify a permit.
(c) The commission by rule may authorize changes in a federal
source to proceed before the owner or operator obtains a federal
operating permit or revisions to a federal operating permit if
the owner or operator has obtained a preconstruction permit or
permit amendment required by Section 382.0518 or an exemption
allowed under Section 382.057.
(d) The commission by rule shall develop criteria and
administrative procedures to implement Subsections (b) and (c).
(e) When multiple facilities have been consolidated into a
single permit under this section and the consolidated permit is
reopened for consideration of an amendment relating to one or
more facilities authorized by that permit, the permit is not
considered reopened with respect to facilities for which an
amendment, revision, or modification is not sought unless this
chapter specifically authorizes or requires that additional
reopening in order to protect the public's health and physical
property.
Added by Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 2.08, eff.
Sept. 1, 1991.
Amended by Acts 1993, 73rd Leg., ch. 485, Sec. 7, eff. June 9,
1993; Acts 1995, 74th Leg., ch. 76, Sec. 11.160, eff. Sept. 1,
1995.
Sec. 382.0512. Modification of Existing Facility.
(a) Except as provided in Subsection (b), in determining
whether a proposed change at an existing facility is a
modification, the commission may not consider the effect on
emissions of:
(1) any air pollution control method applied to a source; or
(2) any decreases in emissions from other sources.
(b) In determining whether a proposed change at an existing
facility that meets the criteria of Section 382.003(9)(E) results
in a net increase in allowable emissions, the board shall
consider the effect on emissions of:
(1) any air pollution control method applied to the
facility;
(2) any decreases in allowable emissions from other
facilities that have received a preconstruction permit or
permit amendment no earlier than 120 months before the change
will occur; and
(3) any decreases in actual emissions from other facilities
that meet the criteria of Section 382.003(9)(E)(i) or (ii).
(c) Nothing in this section shall be construed to limit the
application of otherwise applicable state or federal
requirements, nor shall this section be construed to limit the
board's powers of enforcement under this chapter.
Added by Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 2.08, eff.
Sept. 1, 1991.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.161, eff. Sept.
1, 1995; Acts 1995, 74th Leg., ch. 150, Sec. 2, eff. May 19,
1995.
Sec. 382.0513. Permit Conditions.
The commission may establish and enforce permit conditions
consistent with this chapter. Permit conditions of general
applicability shall be adopted by rule.
Added by Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 2.08, eff.
Sept. 1, 1991.
Amended by Acts 1993, 73rd Leg., ch. 485, Sec. 8, eff. June 9,
1993; Acts 1995, 74th Leg., ch. 76, Sec. 11.161, eff. Sept. 1,
1995.
Sec. 382.0514. Sampling, Monitoring, and Certification.
The commission may require, at the expense of the permit holder
and as a condition of the permit:
(1) sampling and monitoring of a permitted federal source or
facility;
(2) certification of the compliance of the owner or operator
of the permitted federal source with the terms and conditions
of the permit and with all applicable requirements; and
(3) a periodic report of:
(A) the results of sampling and monitoring; and
(B) the certification of compliance.
Added by Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 2.08, eff.
Sept. 1, 1991.
Amended by Acts 1993, 73rd Leg., ch. 485, Sec. 9, eff. June 9,
1993; Acts 1995, 74th Leg., ch. 76, Sec. 11.161, eff. Sept. 1,
1995.
Sec. 382.0515. Application for Permit.
A person applying for a permit shall submit to the commission:
(1) a permit application;
(2) copies of all plans and specifications necessary to
determine if the facility or source will comply with applicable
federal and state air control statutes, rules, and regulations
and the intent of this chapter; and
(3) any other information the commission considers
necessary.
Added by Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 2.08, eff.
Sept. 1, 1991.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.161, eff. Sept.
1, 1995.
Sec. 382.0516. Notice to State Senator and Representative.
On receiving an application for a construction permit, a
special permit, or an operating permit for a facility that may
emit air contaminants, the commission shall send notice of the
application to the state senator and representative who represent
the area in which the facility is or will be located.
Added by Acts 1991, 72nd Leg., ch. 236, Sec. 2, eff. Sept. 1,
1991. Renumbered from Sec. 382.0511 by Acts 1991, 72nd Leg., 1st
C.S., ch. 3, Sec. 2.07, eff. Sept. 1, 1991.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.161, eff. Sept.
1, 1995.
Sec. 382.0517. Determination of Administrative Completion of Application.
The commission shall determine when an application filed under
Section 382.054 or Section 382.0518 is administratively complete.
On determination, the commission by mail shall notify the
applicant and any interested party who has requested
notification. If the number of interested parties who have
requested notification makes it impracticable for the commission
to notify those parties by mail, the commission shall notify
those parties by publication using the method prescribed by
Section 382.031(a).
Added by Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 2.08, eff.
Sept. 1, 1991.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.161, eff. Sept.
1, 1995.
Sec. 382.0518. Preconstruction Permit.
(a) Before work is begun on the construction of a new facility
or a modification of an existing facility that may emit air
contaminants, the person planning the construction or
modification must obtain a permit from the commission.
(b) The commission shall grant within a reasonable time a
permit to construct or modify a facility if, from the information
available to the commission, including information presented at
any hearing held under Section 382.056(d), the commission finds:
(1) the proposed facility for which a permit or a special
permit is sought will use at least the best available control
technology, considering the technical practicability and
economic reasonableness of reducing or eliminating the
emissions resulting from the facility; and
(2) no indication that the emissions from the facility will
contravene the intent of this chapter, including protection of
the public's health and physical property.
(c) In considering the issuance, amendment, or renewal of a
permit, the commission may consider any adjudicated decision or
compliance proceeding within the five years before the date on
which the application was filed that addressed the applicant's
past performance and compliance with the laws of this state,
another state, or the United States governing air contaminants or
with the terms of any permit or order issued by the commission.
(d) If the commission finds that the emissions from the
proposed facility will contravene the standards under Subsection
(b) or will contravene the intent of this chapter, the commission
may not grant the permit or a special permit and shall set out in
a report to the applicant its specific objections to the
submitted plans of the proposed facility.
(e) If the person applying for a permit or a special permit
makes the alterations in the person's plans and specifications to
meet the commission's specific objections, the commission shall
grant the permit or special permit. If the person fails or
refuses to alter the plans and specifications, the commission may
not grant the permit or special permit. The commission may
refuse to accept a person's new application until the
commission's objections to the plans previously submitted by that
person are satisfied.
(f) A person may operate a facility or source under a permit
issued by the commission under this section if:
(1) the facility or source is not required to obtain a
federal operating permit under Section 382.054; and
(2) within the time and in the manner prescribed by
commission rule, the permit holder demonstrates that:
(A) the facility complies with all terms of the existing
preconstruction permit; and
(B) operation of the facility or source will not violate
the intent of this chapter or standards adopted by the
commission.
(g) Subsections (a)-(d) do not apply to a person who has
executed a contract or has begun construction for an addition,
alteration, or modification to a new or an existing facility on
or before August 30, 1971, and who has complied with the
requirements of Section 382.060, as it existed on November 30,
1991. To qualify for any exemption under this subsection, a
contract may not have a beginning construction date later than
February 29, 1972.
(h) A reference to a permit in this section includes an
amendment to a permit.
Added by Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 2.08, eff.
Sept. 1, 1991.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.162, eff. Sept.
1, 1995; Acts 1995, 74th Leg., ch. 150, Sec. 3, eff. May 19,
1995.
Sec. 382.052. Permit to Construct or Modify Facility Within 3,000 Feet of
School.
In considering the issuance of a permit to construct or modify
a facility within 3,000 feet of an elementary, junior high, or
senior high school, the commission shall consider possible
adverse short-term or long-term side effects of air contaminants
or nuisance odors from the facility on the individuals attending
the school facilities.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.163, eff. Sept.
1, 1995.
Sec. 382.053. Prohibition on Issuance of Construction Permit for Lead
Smelting Plant at Certain Locations.
(a) The commission may not grant a construction permit for a
lead smelting plant at a site:
(1) located within 3,000 feet of an individual's residence;
and
(2) at which lead smelting operations have not been
conducted before August 31, 1987.
(b) This section does not apply to:
(1) a modification of a lead smelting plant in operation on
August 31, 1987;
(2) a lead smelting plant or modification of a plant with
the capacity to produce not more than 200 pounds of lead each
hour; or
(3) a lead smelting plant that, when the plant began
operation, was located more than 3,000 feet from the nearest
residence.
(c) In this section, "lead smelting plant" means a facility
operated as a smeltery for processing lead.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.164, eff. Sept.
1, 1995.
Sec. 382.054. Federal Operating Permit.
Subject to Section 382.0511(c), a person may not operate a
federal source unless the person has obtained a federal operating
permit from the commission under Section 382.0541, 382.0542, or
382.0543.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 2.09, eff.
Sept. 1, 1991.
Amended by Acts 1993, 73rd Leg., ch. 485, Sec. 10, eff. June 9,
1993; Acts 1995, 74th Leg., ch. 76, Sec. 11.165, eff. Sept. 1,
1995.
Sec. 382.0541. Administration and Enforcement of Federal Operating Permit.
(a) The commission may:
(1) require a federal source to obtain a permit under the
federal Clean Air Act (42 U.S.C. Section 7401 et seq.);
(2) require an existing facility or source to use, at a
minimum, any applicable maximum achievable control technology
required by the commission or by the United States
Environmental Protection Agency;
(3) require facilities or federal sources that are new or
modified and are subject to Section 112(g) of the federal Clean
Air Act (42 U.S.C. Section 7412) to use, at a minimum, the more
stringent of:
(A) the best available control technology, considering
the technical practicability and economic reasonableness of
reducing or eliminating emissions from the proposed facility
or federal source; or
(B) any applicable maximum achievable control technology
(MACT), including any MACT developed pursuant to Section
112(g) of the federal Clean Air Act (42 U.S.C. Section
7412);
(4) establish maximum achievable control technology
requirements in accordance with Section 112(j) of the federal
Clean Air Act (42 U.S.C. Section 7412);
(5) issue initial permits with terms not to exceed five
years for federal sources under Title V of the federal Clean
Air Act, with terms not to exceed five years for all
subsequently issued or renewed permits;
(6) administer the use of emissions allowances under Section
408 of the federal Clean Air Act (42 U.S.C. Section 7651g);
(7) reopen and revise an affected federal operating permit
if:
(A) the permit has a term of three years or more
remaining in order to incorporate requirements under the
federal Clean Air Act (42 U.S.C. Section 7401 et seq.)
adopted after the permit is issued;
(B) additional requirements become applicable to an
affected source under the acid rain program;
(C) the federal operating permit contains a material
mistake;
(D) inaccurate statements were made in establishing the
emissions standards or other terms or conditions of the
federal operating permit; or
(E) a determination is made that the permit must be
reopened and revised to assure compliance with applicable
requirements;
(8) incorporate a federal implementation plan as a condition
of a permit issued by the commission;
(9) exempt federal sources from the obligation to obtain a
federal operating permit;
(10) provide that all representations in an application for
a permit under Title IV of the federal Clean Air Act (42 U.S.C.
Sections 7651-7651o) are binding on the applicant until
issuance or denial of the permit;
(11) provide that all terms and conditions of any federal
operating permit required under Title IV of the federal Clean
Air Act (42 U.S.C. Sections 7651-7651o) shall be a complete and
segregable section of the federal operating permit; and
(12) issue initial permits with fixed terms of five years
for federal sources under Title IV of the federal Clean Air Act
(42 U.S.C. Sections 7651-7651o) with fixed five-year terms for
all subsequently issued or renewed permits.
(b) The commission by rule shall provide for objection by the
administrator to the issuance of any operating or general permit
subject to Title V of the federal Clean Air Act (42 U.S.C.
Sections 7661-7661f) and shall authorize the administrator to
revoke and reissue, terminate, reopen, or modify a federal
operating permit.
(c) This section does not affect the permit requirements of
Section 382.0518, except that the commission may consolidate with
an existing permit issued under this section a permit required by
Section 382.0518.
(d) The commission promptly shall provide to the applicant
notice of whether the application is complete. Unless the
commission requests additional information or otherwise notifies
the applicant that the application is incomplete before the 61st
day after the commission receives an application, the application
shall be deemed complete.
(e) Subsections (a)(3) and (4) do not prohibit the
applicability of at least the best available control technology
to a new or modified facility or federal source under Section
382.0518(b)(1).
Added by Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 2.10.
Amended by Acts 1993, 73rd Leg., ch. 485, Sec. 11, eff. June 9,
1993; Acts 1995, 74th Leg., ch. 76, Sec. 11.166, eff. Sept. 1,
1995.
Sec. 382.0542. Issuance of Federal Operating Permit; Appeal of Delay.
(a) A federal source is eligible for a permit required by
Section 382.054 if from the information available to the
commission, including information presented at a hearing held
under Section 382.0561, the commission finds that:
(1) the federal source will use, at a minimum, any
applicable maximum achievable control technology required by
the commission or by the United States Environmental Protection
Agency;
(2) for a federal source that is new or modified and subject
to Section 112(g) of the federal Clean Air Act (42 U.S.C.
Section 7412), the federal source will use, at a minimum, the
more stringent of:
(A) the best available control technology, considering
the technical practicability and economic reasonableness of
reducing or eliminating the emissions from the proposed
federal source; or
(B) any applicable maximum achievable control technology
required by the commission or by the United States
Environmental Protection Agency; and
(3) the federal source will comply with the following
requirements, if applicable:
(A) Title V of the federal Clean Air Act (42 U.S.C.
Sections 7661-7661f) and the regulations adopted under that
title;
(B) each standard or other requirement provided for in
the applicable implementation plan approved or adopted by
rule of the United States Environmental Protection Agency
under Title I of the federal Clean Air Act (42 U.S.C.
Sections 7401-7515) that implements the relevant
requirements of that Act, including any revisions to the
plan;
(C) each term or condition of a preconstruction permit
issued by the commission or the United States Environmental
Protection Agency in accordance with rules adopted by the
commission or the United States Environmental Protection
Agency under Part C or D, Title I of the federal Clean Air
Act (42 U.S.C. 7401-7515);
(D) each standard or other requirement established under
Section 111 of the federal Clean Air Act (42 U.S.C. Section
7411), including Subsection (d) of that section;
(E) each standard or other requirement established under
Section 112 of the federal Clean Air Act (42 U.S.C. Section
7412) including any requirement concerning accident
prevention under Subsection (r)(7) of that section;
(F) each standard or other requirement of the acid rain
program established under Title IV of the federal Clean Air
Act (42 U.S.C. Sections 7651-7651o) or the regulations
adopted under that title;
(G) each requirement established under Section 504(b) or
Section 114(a)(3) of the federal Clean Air Act (42 U.S.C.
Section 7661c or 7414);
(H) each standard or other requirement governing solid
waste incineration established under Section 129 of the
federal Clean Air Act (42 U.S.C. Section 7429);
(I) each standard or other requirement for consumer and
commercial products established under Section 183(e) of the
federal Clean Air Act (42 U.S.C. Section 7511b);
(J) each standard or other requirement for tank vessels
established under Section 183(f) of the federal Clean Air
Act (42 U.S.C. Section 7511b);
(K) each standard or other requirement of the program to
control air pollution from outer continental shelf sources
established under Section 328 of the federal Clean Air Act
(42 U.S.C. Section 7627);
(L) each standard or other requirement of regulations
adopted to protect stratospheric ozone under Title VI of the
federal Clean Air Act (42 U.S.C. Sections 7671-7671q) unless
the administrator has determined that the standard or
requirement does not need to be contained in a Title V
permit; and
(M) each national ambient air quality standard or
increment or visibility requirement under Part C of Title I
of the federal Clean Air Act (42 U.S.C. Sections 7470-7492),
but only as the standard, increment, or requirement would
apply to a temporary source permitted under Section 504(e)
of the federal Clean Air Act (42 U.S.C. Section 7661c).
(b) The commission shall:
(1) take final action on an application for a permit, permit
revision, or permit renewal within 18 months after the date on
which the commission receives an administratively complete
application;
(2) under an interim program, for those federal sources for
which initial applications are required to be filed not later
than one year after the effective date of the interim program,
take final action on at least one-third of those applications
annually over a period not to exceed three years after the
effective date of the interim program;
(3) under the fully approved program, for those federal
sources for which initial applications are required to be filed
not later than one year after the effective date of the fully
approved program, take final action on at least one-third of
those applications annually over a period not to exceed three
years after the effective date of the program; and
(4) take final action on a permit reopening not later than
18 months after the adoption of the requirement that prompted
the reopening.
(c) If the commission fails to take final action as required by
Subsection (b)(1) or (4), a person affected by the commission's
failure to act may obtain judicial review under Section 382.032
at any time before the commission takes final action. A
reviewing court may order the commission to act on the
application without additional delay if it finds that the
commission's failure to act is arbitrary or unreasonable.
(d) Subsection (a)(2) does not prohibit the applicability of at
least the best available control technology to a new or modified
facility or federal source under Section 382.0518(b)(1).
Added by Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 2.10, eff.
Sept. 1, 1991.
Amended by Acts 1993, 73rd Leg., ch. 485, Sec. 12, eff. June 9,
1993; Acts 1995, 74th Leg., ch. 76, Sec. 11.167, eff. Sept. 1,
1995.
Sec. 382.0543. Review and Renewal of Federal Operating Permit.
(a) In accordance with Section 382.0541(a)(5), a federal
operating permit issued or renewed by the commission is subject
to review at least every five years after the date of issuance to
determine whether the authority to operate should be renewed.
(b) The commission by rule shall establish:
(1) the procedures for notifying a permit holder that the
permit is scheduled for review in accordance with this section;
(2) a deadline by which the holder of a permit must submit
an application for renewal of the permit that is between the
date six months before expiration of the permit and the date 18
months before expiration of the permit;
(3) the general requirements for an application; and
(4) the procedures for reviewing and acting on a renewal
application.
(c) The commission promptly shall provide to the applicant
notice of whether the application is complete. Unless the
commission requests additional information or otherwise notifies
the applicant that the application is incomplete before the 61st
day after the commission receives an application, the application
shall be deemed complete.
(d) The commission shall take final action on a renewal
application for a federal operating permit within 18 months after
the date an application is determined to be administratively
complete. If the commission does not act on an application for
permit renewal within 18 months after the date on which the
commission receives an administratively complete application, a
person who participated in the public participation process or a
person affected by the commission's failure to act may obtain
judicial review under Section 382.032 at any time before the
commission takes final action.
(e) In determining whether and under which conditions a permit
should be renewed, the commission shall consider:
(1) all applicable requirements in Section 382.0542(a)(3);
and
(2) whether the federal source is in compliance with this
chapter and the terms of the existing permit.
(f) The commission shall impose as terms and conditions in a
renewed federal operating permit any applicable requirements
under Title V of the federal Clean Air Act (42 U.S.C. Sections
7661-7661f). The terms or conditions of the renewed permit must
provide for compliance with any applicable requirement under
Title V of the federal Clean Air Act (42 U.S.C. Sections
7661-7661f). The commission may not impose requirements less
stringent than those of the existing permit unless the commission
determines that a proposed change will meet the requirements of
Section 382.0541.
(g) If the applicant submits a timely and complete application
for federal operating permit renewal, but the commission fails to
issue or deny the renewal permit before the end of the term of
the previous permit:
(1) all terms and conditions of the permit shall remain in
effect until the renewal permit has been issued or denied; and
(2) the applicant may continue to operate until the permit
renewal application is issued or denied, if the applicant
submits additional information that is requested in writing by
the commission that the commission needs to process the
application on or before the time specified in writing by the
commission.
(h) This section does not affect the commission's authority to
begin an enforcement action under Sections 382.082-382.084.
Added by Acts 1993, 73rd Leg., ch. 485, Sec. 13, eff. June 9,
1993. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.167, eff.
Sept. 1, 1995.
Sec. 382.055. Review and Renewal of Preconstruction Permit.
(a) A preconstruction permit issued or renewed by the
commission is subject to review to determine whether the
authority to operate should be renewed according to the following
schedule:
(1) a preconstruction permit issued before December 1, 1991,
is subject to review not later than 15 years after the date of
issuance;
(2) a preconstruction permit issued on or after December 1,
1991, is subject to review every 10 years after the date of
issuance; and
(3) for cause, a preconstruction permit issued on or after
December 1, 1991, for a facility at a nonfederal source may
contain a provision requiring the permit to be renewed at a
period of between five and 10 years.
(b) The commission by rule shall establish:
(1) a deadline by which the holder of a preconstruction
permit must submit an application to renew the permit;
(2) the general requirements for an application for renewal
of a preconstruction permit; and
(3) the procedures for reviewing and acting on renewal
applications.
(c) Not less than 180 days before the date on which the renewal
application is due, the commission shall provide written notice
to the permit holder, by registered or certified mail, that the
permit is scheduled for review in accordance with this section.
The notice must include a description of the procedure for filing
a renewal application and the information to be included in the
application.
(d) In determining whether and under which conditions a
preconstruction permit should be renewed, the commission shall
consider, at a minimum:
(1) whether the facility is or has been in substantial
compliance with this chapter and the terms of the existing
permit; and
(2) the condition and effectiveness of existing emission
control equipment and practices.
(e) The commission shall impose as a condition for renewal of a
preconstruction permit only those requirements the commission
determines to be economically reasonable and technically
practicable considering the age of the facility and the effect of
its emissions on the surrounding area. The commission may not
impose requirements more stringent than those of the existing
permit unless the commission determines that the requirements are
necessary to avoid a condition of air pollution or to ensure
compliance with otherwise applicable federal or state air quality
control requirements. The commission may not impose requirements
less stringent than those of the existing permit unless the
commission determines that a proposed change will meet the
requirements of Sections 382.0518 and 382.0541.
(f) On or before the 180th day after the date on which an
application for renewal is filed, the commission shall renew the
permit or, if the commission determines that the facility will
not meet the requirements for renewing the permit, shall:
(1) set out in a report to the applicant the basis for the
commission's determination; and
(2) establish a schedule, to which the applicant must adhere
in meeting the commission's requirements, that:
(A) includes a final date for meeting the commission's
requirements; and
(B) requires completion of that action as expeditiously
as possible.
(g) If the applicant meets the commission's requirements in
accordance with the schedule, the commission shall renew the
permit. If the applicant does not meet those requirements in
accordance with the schedule, the applicant must show in a
contested case proceeding why the permit should not expire
immediately. The applicant's permit is effective until:
(1) the final date specified by the commission's report to
the applicant;
(2) the existing permit is renewed; or
(3) the date specified by a commission order issued
following a contested case proceeding held under this section.
(h) If the holder of a preconstruction permit to whom the
commission has mailed notice under this section does not apply
for renewal of that permit by the date specified by the
commission under this section, the permit shall expire at the end
of the period described in Subsection (a).
(i) This section does not affect the commission's authority to
begin an enforcement action under Sections 382.082-382.084.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 2.11, eff.
Sept. 1, 1991.
Amended by Acts 1993, 73rd Leg., ch. 485, Sec. 14, eff. June 9,
1993; Acts 1995, 74th Leg., ch. 76, Sec. 11.167, eff. Sept. 1,
1995; Acts 1995, 74th Leg., ch. 149, Sec. 1, eff. May 19, 1995.
Sec. 382.056. Notice of Intent to Obtain Permit or Permit Review; Hearing.
(a) An applicant for a permit under Section 382.0518 or 382.054
or a permit renewal review under Section 382.055 shall publish
notice of intent to obtain the permit or permit review. The
commission by rule may require an applicant for a federal
operating permit to publish notice of intent to obtain a permit
or permit review consistent with federal requirements and with
the requirements of this section. The applicant shall publish
the notice at least once in a newspaper of general circulation in
the municipality in which the facility or federal source is
located or is proposed to be located or in the municipality
nearest to the location or proposed location of the facility or
federal source. If the elementary or middle school nearest to
the facility or proposed facility provides a bilingual education
program as required by Subchapter B, Chapter 29 , Education Code,
the applicant shall also publish the notice at least once in an
additional publication of general circulation in the municipality
or county in which the facility is located or proposed to be
located that is published in the language taught in the bilingual
education program. This requirement is waived if such a
publication does not exist or if the publisher refuses to publish
the notice. The commission by rule shall prescribe when notice
must be published and may require publication of additional
notice. Notice required to be published under this section shall
only be required to be published in the United States.
(b) The notice must include:
(1) a description of the location or proposed location of
the facility or federal source;
(2) a statement that a person who may be affected by
emissions of air contaminants from the facility, proposed
facility, or federal source is entitled to request a hearing
from the commission;
(3) a description of the manner in which the commission may
be contacted for further information; and
(4) any other information the commission by rule requires.
(c) At the site of a facility, proposed facility, or federal
source for which an applicant is required to publish notice under
this section, the applicant shall place a sign declaring the
filing of an application for a permit or permit review for a
facility at the site and stating the manner in which the
commission may be contacted for further information. The
commission shall adopt any rule necessary to carry out this
subsection.
(d) Except as provided by Section 382.0561 or Subsection (e),
the commission or its delegate shall hold a public hearing on the
permit application or permit renewal application before granting
the permit or renewal if a person who may be affected by the
emissions, or a member of the legislature from the general area
in which the facility or proposed facility is located, requests a
hearing within the period set by commission rule. The commission
shall not hold a hearing if the basis of a request by a person
who may be affected is determined to be unreasonable. Reasons
for which a request for a hearing on a permit amendment,
modification, or renewal shall be considered to be unreasonable
include, but are not limited to, an amendment, modification, or
renewal that would not result in an increase in allowable
emissions and would not result in the emission of an air
contaminant not previously emitted.
(e) Notwithstanding other provisions of this chapter, the
commission may hold a hearing on a permit amendment,
modification, or renewal if the board determines that the
application involves a facility for which the applicant's
compliance history contains violations which are unresolved and
which constitute a recurring pattern of egregious conduct which
demonstrates a consistent disregard for the regulatory process,
including the failure to make a timely and substantial attempt to
correct the violations.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 2.12, eff.
Sept. 1, 1991.
Amended by Acts 1993, 73rd Leg., ch. 485, Sec. 15, eff. June 9,
1993; Acts 1995, 74th Leg., ch. 76, Sec. 11.167, eff. Sept. 1,
1995; Acts 1995, 74th Leg., ch. 149, Sec. 2, eff. May 19, 1995;
Acts 1997, 75th Leg., ch. 165, Sec. 6.42, eff. Sept. 1, 1997.
Sec. 382.0561. Federal Operating Permit: Hearing.
(a) Public hearings on applications for issuance, revision,
reopening, or renewal of a federal operating permit shall be
conducted under this section only and not under Chapter 2001,
Government Code.
(b) On determination that an application for a federal
operating permit under Sections 382.054-382.0542 or a renewal of
a federal operating permit under Section 382.0543 is
administratively complete and before the beginning of the public
comment period, the commission or its designee shall prepare a
draft permit.
(c) The commission or its designee shall hold a public hearing
on a federal operating permit, a reopening of a federal operating
permit, or renewal application before granting the permit or
renewal if within the public comment period a person who may be
affected by the emissions or a member of the legislature from the
general area in which the facility is located requests a hearing.
The commission or its designee is not required to hold a hearing
if the basis of the request by a person who may be affected is
determined to be unreasonable.
(d) The following shall be available for public inspection in
at least one location in the general area where the facility is
located:
(1) information submitted by the application, subject to
applicable confidentiality laws;
(2) the executive director's analysis of the proposed
action; and
(3) a copy of the draft permit.
(e) The commission or its designee shall hold a public comment
period on a federal operating permit application, a federal
operating permit reopening application, or a federal operating
permit renewal application under Sections 382.054-382.0542 or
382.0543. Any person may submit a written statement to the
commission during the public comment period. The commission or
its designee shall receive public comment for 30 days after the
date on which notice of the public comment period is published.
The commission or its designee may extend or reopen the comment
period if the executive director finds an extension or reopening
to be appropriate.
(f) Notice of the public comment period and opportunity for a
hearing under this section shall be published in accordance with
Section 382.056.
(g) Any person may submit an oral or written statement
concerning the application at the hearing. The individual
holding the hearing may set reasonable limits on the time allowed
for oral statements at the hearing. The public comment period
extends to the close of the hearing and may be further extended
or reopened if the commission or its designee finds an extension
or reopening to be appropriate.
(h) Any person, including the applicant, who believes that any
condition of the draft permit is inappropriate or that the
preliminary decision of the commission or its designee to issue
or deny a permit is inappropriate must raise all reasonably
ascertainable issues and submit all reasonably available
arguments supporting that position by the end of the public
comment period.
(i) The commission or its designee shall consider all comments
received during the public comment period and at the public
hearing in determining whether to issue the permit and what
conditions should be included if a permit is issued.
Added by Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 2.13, eff.
Sept. 1, 1991.
Amended by Acts 1993, 73rd Leg., ch. 485, Sec. 16, eff. June 9,
1993; Acts 1995, 74th Leg., ch. 76, Secs. 5.95(49), 11.168, eff.
Sept. 1, 1995.
Sec. 382.0562. Notice of Decision.
(a) The commission or its designee shall send notice of a
proposed final action on a federal operating permit by
first-class mail to the applicant and all persons who comment
during the public comment period or at the public hearing. The
notice shall include a response to any comment submitted during
the public comment period and shall identify any change in the
conditions of the draft permit and the reasons for the change.
(b) The notice required by Subsection (a) shall:
(1) state that any person affected by the decision of the
commission or its designee may petition the administrator in
accordance with Section 382.0563 and rules adopted under that
section;
(2) state the date by which the petition must be filed; and
(3) explain the petition process.
Added by Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 2.13, eff.
Sept. 1, 1991.
Amended by Acts 1993, 73rd Leg., ch. 485, Sec. 17, eff. June 9,
1993; Acts 1995, 74th Leg., ch. 76, Sec. 11.169, eff. Sept. 1,
1995.
Sec. 382.0563. Public Petition to the Administrator.
(a) The commission by rule may provide for public petitions to
the administrator in accordance with Section 505 of the federal
Clean Air Act (42 U.S.C. Section 7661d).
(b) The petition for review to the administrator under this
section does not affect:
(1) a permit issued by the commission or its designee; or
(2) the finality of the commission's or its designee's
action for purposes of an appeal under Section 382.032.
(c) The commission or its designee shall resolve any objection
that the United States Environmental Protection Agency makes and
terminate, modify, or revoke and reissue the permit in accordance
with the objection not later than the 90th day after the date the
commission receives the objection.
Added by Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 2.13.
Amended by Acts 1993, 73rd Leg., ch. 485, Sec. 18, eff. June 9,
1993; Acts 1995, 74th Leg., ch. 76, Sec. 11.169, eff. Sept. 1,
1995.
Sec. 382.0564. Notification to Other Governmental Entities.
The commission by rule may allow for notification of and review
by the administrator and affected states of permit applications,
revisions, renewals, or draft permits prepared under Sections
382.054-382.0543.
Added by Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 2.13, eff.
Sept. 1, 1991.
Amended by Acts 1993, 73rd Leg., ch. 485, Sec. 19, eff. June 9,
1993; Acts 1995, 74th Leg., ch. 76, Sec. 11.169, eff. Sept. 1,
1995.
Sec. 382.057. Exemption.
(a) Consistent with Section 382.0511, the commission by rule
may exempt from the requirements of Section 382.0518 changes
within any facility and certain types of facilities if it is
found on investigation that such changes or types of facilities
will not make a significant contribution of air contaminants to
the atmosphere. The commission by rule shall exempt from the
requirements of Section 382.0518 or issue a standard permit for
the installation of emission control equipment that constitutes a
modification or a new facility, subject to such conditions
restricting the applicability of such exemption or standard
permit that the commission deems necessary to accomplish the
intent of this chapter. The commission may not exempt any
facility or any modification of an existing facility defined as
"major" under the federal Clean Air Act or regulations adopted
under that Act. Nothing in this subsection shall be construed to
limit the commission's general power to control the state's air
quality under Section 382.011(a).
(b) The commission shall adopt rules specifically defining the
terms and conditions for an exemption under this section in a
nonattainment area as defined by Title I of the federal Clean Air
Act (42 U.S.C. Section 7401 et seq.).
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 2.14, eff.
Sept. 1, 1991.
Amended by Acts 1993, 73rd Leg., ch. 485, Sec. 20, eff. June 9,
1993; Acts 1995, 74th Leg., ch. 76, Sec. 11.169, eff. Sept. 1,
1995; Acts 1997, 75th Leg., ch. 1125, Sec. 1, eff. Sept. 1, 1997.
Sec. 382.058. Limitation on Commission Exemption for Construction of
Certain Concrete Plants.
(a) A person may not begin construction on any concrete plant
that performs wet batching, dry batching, or central mixing under
an exemption adopted by the commission under Section 382.057
unless the person has complied with the notice and opportunity
for hearing provisions under Section 382.056.
(b) This section does not apply to a concrete plant located
temporarily in the right-of-way, or contiguous to the
right-of-way, of a public works project.
(c) For purposes of this section, only those persons actually
residing in a permanent residence within 440 yards of the
proposed plant may request a hearing under Section 382.056(d) as
a person who may be affected.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.169, eff. Sept.
1, 1995.
Sec. 382.0591. Denial of Application for Permit; Assistance Provided by
Former or Current Employees.
(a) The commission shall deny an application for the issuance,
amendment, renewal, or transfer of a permit and may not issue,
amend, renew, or transfer the permit if the commission determines
that:
(1) a former employee participated personally and
substantially as an employee in the commission's review,
evaluation, or processing of the application before leaving
employment with the commission; and
(2) after leaving employment with the commission, that
former employee provided assistance to the applicant for the
issuance, amendment, renewal, or transfer of the permit,
including assistance with preparation or presentation of the
application or legal representation of the applicant.
(b) The commission or the executive director may not issue a
federal operating permit for a solid waste incineration unit if a
member of the commission or the executive director is also
responsible in whole or in part for the design and construction
or the operation of the unit.
(c) The commission shall provide an opportunity for a hearing
to an applicant before denying an application under this section.
(d) Action taken under this section does not prejudice any
application other than an application in which the former
employee provided assistance.
(e) In this section, "former employee" means a person:
(1) who was previously employed by the commission as a
supervisory or exempt employee; and
(2) whose duties during employment with the commission
included involvement in or supervision of the commission's
review, evaluation, or processing of applications.
Added by Acts 1991, 72nd Leg., ch. 14, Sec. 140, eff. Sept. 1,
1991.
Amended by Acts 1993, 73rd Leg., ch. 485, Sec. 22, eff. June 9,
1993; Acts 1995, 74th Leg., ch. 76, Sec. 11.170, eff. Sept. 1,
1995.
Sec. 382.061. Delegation of Powers and Duties.
(a) The commission may delegate to the executive director the
powers and duties under Sections 382.051-382.0563 and 382.059,
except for the adoption of rules.
(b) An applicant or a person affected by a decision of the
executive director may appeal to the commission any decision made
by the executive director, with the exception of a decision
regarding a federal operating permit, under Sections
382.051-382.055 and 382.059.
(c) Any person, including the applicant, affected by a decision
of the executive director regarding federal operating permits
may:
(1) petition the administrator in accordance with rules
adopted under Section 382.0563; or
(2) file a petition for judicial review under Section
382.032.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 2.16, eff.
Sept. 1, 1991.
Amended by Acts 1993, 73rd Leg., ch. 485, Sec. 23, eff. June 9,
1993; Acts 1995, 74th Leg., ch. 76, Sec. 11.171, eff. Sept. 1,
1995.
Sec. 382.062. Application, Permit, and Inspection Fees.
(a) The commission shall adopt, charge, and collect a fee for:
(1) each application for:
(A) a permit or permit amendment, revision, or
modification not subject to Title IV or V of the federal
Clean Air Act (42 U.S.C. Sections 7651 et seq. and 7661 et
seq.);
(B) a renewal review of a permit issued under Section
382.0518 not subject to Title IV or V of the federal Clean
Air Act;
(2) inspections of a federal source performed to enforce
this chapter or rules adopted by the commission under this
chapter until the federal source is required to obtain an
operating permit under Section 382.054; and
(3) inspections performed to enforce this chapter or rules
adopted by the commission under this chapter at a facility not
required to obtain an operating permit under Section 382.054.
(b) The commission may adopt rules relating to charging and
collecting a fee for an exemption from a permit or for a standard
permit authorized by commission rule and for a variance.
(c) For purposes of the fees, the commission shall treat two or
more facilities that compose an integrated system or process as a
single facility if a structure, device, item of equipment, or
enclosure that constitutes or contains a given stationary source
operates in conjunction with and is functionally integrated with
one or more other similar structures, devices, items of
equipment, or enclosures.
(d) A fee assessed under this section may not be less than $25
or more than $75,000.
(e) The commission by rule shall establish the fees to be
collected under Subsection (a) in amounts sufficient to recover:
(1) the reasonable costs to review and act on a variance
application and enforce the terms and conditions of the
variance; and
(2) not less than 50 percent of the commission's actual
annual expenditures to:
(A) review and act on permits or special permits;
(B) amend and review permits;
(C) inspect permitted, exempted, and specially permitted
facilities; and
(D) enforce the rules and orders adopted and permits,
special permits, and exemptions issued under this chapter,
excluding rules and orders adopted and permits required
under Title IV or V of the federal Clean Air Act (42 U.S.C.
Sections 7651 et seq. and 7661 et seq.).
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 2.18, eff.
Sept. 1, 1991.
Amended by Acts 1993, 73rd Leg., ch. 485, Sec. 24, eff. June 9,
1993; Acts 1995, 74th Leg., ch. 76, Sec. 11.172, eff. Sept. 1,
1995.
Sec. 382.0621. Operating Permit Fee.
(a) The commission shall adopt, charge, and collect an annual
fee based on emissions for each source that either:
(1) is subject to permitting requirements of Title IV or V
of the federal Clean Air Act Amendments of 1990 (Pub.L. No.
101-549); or
(2) is based on plant operations, and the rate of emissions
at the time the fee is due would be subject to the permitting
requirements if the requirements were in effect on that date.
(b) Fees imposed under this section shall be at least
sufficient to cover all reasonably necessary direct and indirect
costs of developing and administering the permit program under
Titles IV and V of the federal Clean Air Act Amendments of 1990
(Pub.L. No. 101-549), including the reasonable costs of:
(1) reviewing and acting on any application for a Title IV
or V permit;
(2) implementing and enforcing the terms and conditions of a
Title IV or V permit, excluding any court costs or other costs
associated with any enforcement action;
(3) emissions and ambient monitoring;
(4) preparing generally applicable regulations or guidance;
(5) modeling, analyses, and demonstrations; and
(6) preparing inventories and tracking emissions.
(c) The commission by rule may provide for the automatic annual
increase of fees imposed under this section by the percentage, if
any, by which the consumer price index for the preceding calendar
year exceeds the consumer price index for calendar year 1989.
For purposes of this subsection:
(1) the consumer price index for any calendar year is the
average of the Consumer Price Index for All Urban Consumers
published by the United States Department of Labor as of the
close of the 12-month period ending on August 31 of each
calendar year; and
(2) the revision of the consumer price index that is most
consistent with the consumer price index for calendar year 1989
shall be used.
(d) The commission may not impose a fee for any amount of
emissions of an air contaminant regulated under the federal Clean
Air Act Amendments of 1990 (Pub.L. No. 101-549) in excess of
4,000 tons per year from any source.
(e) This section does not restrict the authority of the
commission under Section 382.062 to impose fees on sources not
subject to the permitting requirements of Title IV or V of the
federal Clean Air Act Amendments of 1990 (Pub.L. No. 101-549).
Added by Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 2.19, eff.
Sept. 1, 1991.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.173, eff. Sept.
1, 1995.
Sec. 382.0622. Clean Air Act Fees.
(a) Clean Air Act fees consist of:
(1) fees collected by the commission under Sections 382.062,
382.0621, and 382.037 and as otherwise provided by law; and
(2) $2 of each advance payment collected by the Department
of Public Safety for inspection certificates for vehicles other
than mopeds under Section 548.501, Transportation Code.
(b) Clean Air Act fees shall be deposited in the state treasury
to the credit of the clean air account and shall be used to
safeguard the air resources of the state.
(c) The commission shall request the appropriation of
sufficient money to safeguard the air resources of the state,
including payments to the Public Safety Commission for incidental
costs of administering the vehicle emissions inspection and
maintenance program, except that after the date of delegation of
the state's permitting program under Title V of the federal Clean
Air Act (42 U.S.C. Sections 7661 et seq.), fees collected under
Section 382.0621(a) may be appropriated only to cover costs of
developing and administering the federal permit program under
Titles IV and V of the federal Clean Air Act (42 U.S.C. Sections
7651 et seq. and 7661 et seq.).
(d)(1) Through the option of contracting for air pollution
control services, including but not limited to compliance and
permit inspections and complaint response, the commission may
utilize appropriated money to purchase services from units of
local government meeting each of the following criteria:
(A) the unit of local government received federal fiscal
year 1990 funds from the United States Environmental
Protection Agency pursuant to Section 105 of the federal
Clean Air Act (42 U.S.C. Section 7405) for the operation of
an air pollution program by formal agreement;
(B) the local unit of government is in a federally
designated nonattainment area subject to implementation plan
requirements, including automobile emission inspection and
maintenance programs, under Title I of the federal Clean Air
Act (42 U.S.C. Sections 7401-7515); and
(C) the local unit of government has not caused the
United States Environmental Protection Agency to provide
written notification that a deficiency in the quality or
quantity of services provided by its air pollution program
is jeopardizing compliance with a state implementation plan,
a federal program delegation agreement, or any other federal
requirement for which federal sanctions can be imposed.
(2) The commission may request appropriations of sufficient
money to contract for services of local units of government
meeting the eligibility criteria of this subsection to ensure
that the combination of federal and state funds annually
available for an air pollution program is equal to or greater
than the program costs for the operation of an air quality
program by the local unit of government. The commission is
encouraged to fund an air pollution program operated by a local
unit of government meeting the eligibility criteria of this
subsection in a manner the commission deems an effective means
of addressing federal and state requirements. The services to
be provided by an eligible local unit of government under a
contractual arrangement under this subsection shall be at least
equal in quality and quantity to the services the local unit of
government committed to provide in agreements under which it
received its federal 1990 air pollution grant. The commission
and the local units of government meeting the eligibility
criteria of this subsection may agree to more extensive
contractual arrangements.
(3) Nothing in this subsection shall prohibit a local unit
of government from voluntarily discontinuing an air pollution
program and thereby relinquishing this responsibility to the
state.
Added by Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 2.20, eff.
Sept. 1, 1991.
Amended by Acts 1993, 73rd Leg., ch. 485, Sec. 25, eff. Sept. 1,
1993; Acts 1995, 74th Leg., ch. 76, Sec. 11.174, eff. Sept. 1,
1995; Acts 1997, 75th Leg., ch. 165, Sec. 30.209, eff. Sept. 1,
1997; Acts 1997, 75th Leg., ch. 333, Sec. 74, eff. Sept. 1, 1997.
Sec. 382.063. Issuance of Emergency Order Because of Catastrophe.
Sec. 382.063. Issuance of Emergency Order Because of Catastrophe.
(a) The commission may issue an emergency order because of
catastrophe under Section 5.515, Water Code.
(b) In this section, "catastrophe" means an unforeseen event,
including an act of God, an act of war, severe weather,
explosions, fire, or similar occurrences beyond the reasonable
control of the operator that makes a facility or its functionally
related appurtenances inoperable.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1995, 74th Leg., ch. 76, Secs. 5.95(49), 11.175,
eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1072, Sec. 44, eff.
Sept. 1, 1997.
Sec. 382.064. Initial Application Date.
An application for a federal operating permit is not required
to be submitted to the commission before the approval of the
Title V permitting program by the United States Environmental
Protection Agency.
Added by Acts 1993, 73rd Leg., ch. 485, Sec. 26, eff. June 9,
1993. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.176, eff.
Sept. 1, 1995.
SUBCHAPTER D. PENALTIES AND ENFORCEMENT
Sec. 382.085. Unauthorized Emissions Prohibited.
(a) Except as authorized by a commission rule or order, a person
may not cause, suffer, allow, or permit the emission of any air
contaminant or the performance of any activity that causes or
contributes to, or that will cause or contribute to, air
pollution.
(b) A person may not cause, suffer, allow, or permit the emission
of any air contaminant or the performance of any activity in
violation of this chapter or of any commission rule or order.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.180, eff. Sept.
1, 1995; Acts 1997, 75th Leg., ch. 1072, Sec. 45, eff. Sept. 1,
1997.
SUBCHAPTER E. AUTHORITY OF LOCAL GOVERNMENTS
Sec. 382.111. Inspections; Power to Enter Property.
(a) A local government has the same power and is subject to the
same restrictions as the commission under Section 382.015 to
inspect the air and to enter public or private property in its
territorial jurisdiction to determine if:
(1) the level of air contaminants in an area in its territorial
jurisdiction and the emissions from a source meet the levels set
by:
(A) the commission; or
(B) a municipality's governing body under Section 382.113; or
(2) a person is complying with this chapter or a rule, variance,
or order issued by the commission.
(b) A local government shall send the results of its inspections
to the commission when requested by the commission.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.187, eff. Sept.
1, 1995.
Sec. 382.112. Recommendations to Commission.
A local government may make recommendations to the commission
concerning a rule, determination, variance, or order of the
commission that affects an area in the local government's
territorial jurisdiction. The commission shall give maximum
consideration to a local government's recommendations.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.187, eff. Sept.
1, 1995.
Sec. 382.113. Authority of Municipalities.
(a) Subject to Section 381.002, a municipality has the powers
and rights as are otherwise vested by law in the municipality to:
(1) abate a nuisance; and
(2) enact and enforce an ordinance for the control and
abatement of air pollution, or any other ordinance, not
inconsistent with this chapter or the commission's rules or
orders.
(b) An ordinance enacted by a municipality must be consistent
with this chapter and the commission's rules and orders and may
not make unlawful a condition or act approved or authorized under
this chapter or the commission's rules or orders.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.187, eff. Sept.
1, 1995.
Sec. 382.115. Cooperative Agreements.
A local government may execute cooperative agreements with the
commission or other local governments:
(1) to provide for the performance of air quality
management, inspection, and enforcement functions and to
provide technical aid and educational services to a party to
the agreement; and
(2) for the transfer of money or property from a party to
the agreement to another party to the agreement for the purpose
of air quality management, inspection, enforcement, technical
aid, and education.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.189, eff. Sept.
1, 1995.
SUBCHAPTER F. ALTERNATIVE FUELS PROGRAM
Sec. 382.131. Definitions.
In this subchapter:
(1) "Alternative fuel" means any fuel or power source that, when
used in a clean-fuel vehicle, allows the vehicle to comply with
the standards and requirements of Part C, Subchapter II, of the
federal Clean Air Act, as amended (42 U.S.C. Section 7581 et
seq.) and emission limits at least as stringent as the applicable
low-emission vehicle standards for the clean-fuel fleet program
under 40 C.F.R. Sections 88.104-94 and 88.105-94 as published in
the September 30, 1994, Federal Register.
(2) "Capable of being centrally fueled" means a fleet or that
part of a fleet consisting of vehicles that could be refueled 100
percent of the time at a location that is owned, operated, or
controlled by the fleet operator or that is under contract with
the fleet operator. The fact that one or more vehicles in a
fleet are not centrally fueled does not exempt an entire fleet
from the program.
(3) "Centrally fueled" means a fleet or that part of a fleet
consisting of vehicles that are refueled 100 percent of the time
at a location that is owned, operated, or controlled by the fleet
operator or that is under contract with the fleet operator. The
fact that one or more vehicles in a fleet are not centrally
fueled does not exempt an entire fleet from the program. The
term does not include retail credit card purchases or commercial
fleet service card purchases.
(4) "Clean-fuel vehicle" means a vehicle in a class or category
of vehicles that has been certified to meet for any model year:
(A) the clean-fuel vehicle standards applicable under Part C,
Subchapter II, of the federal Clean Air Act, as amended (42
U.S.C. Section 7581 et seq.); and
(B) emission limits at least as stringent as the applicable
low-emission vehicle standards for the clean-fuel fleet program
under 40 C.F.R. Sections 88.104-94 and 88.105-94 as published in
the September 30, 1994, Federal Register.
(5) "Conventional gasoline" means any gasoline that does not meet
specifications set by a certification under Section 211(k) of the
federal Clean Air Act, as amended (42 U.S.C. Section 7545(k)).
(6) "Emissions" means emissions of oxides of nitrogen, volatile
organic compounds, carbon monoxide, particulates, or any
combination of those substances.
(7) "Fleet vehicle" means a vehicle required to be registered
under Chapter 502, Transportation Code, except a motor bus used
to transport pre-primary, primary, or secondary students to or
from school or for approved extracurricular activities or a
vehicle registered under Section 502.006(c), Transportation Code,
and that is centrally fueled, capable of being centrally fueled,
or fueled at facilities serving both business customers and the
general public. The term does not include:
(A) a vehicle that, when not in use, is normally parked at the
residence of the individual who normally operates it;
(B)
a vehicle that has a gross vehicle weight rating of greater than
26,000 pounds;
(C) a vehicle used in the maintenance or repair of underground
mass transit facilities which is required by federal law or
regulation to operate on diesel fuel; or
(D) a law enforcement or emergency vehicle.
(8) "Mass transit authority" means a transportation or transit
authority or department established under Chapter 451, 452, or
453, Transportation Code, that operates a mass transit system.
(9) "Reformulated gasoline" means gasoline that has been
certified as a reformulated gasoline under the federal
certification regulations adopted in accordance with Section
211(k) of the federal Clean Air Act, as amended (42 U.S.C.
Section 7545(k)).
Added by Acts 1991, 72nd Leg., ch. 14, Sec. 141, eff. Sept. 1,
1991.
Amended by Acts 1995, 74th Leg., ch. 11, Sec. 1, eff. Sept. 1,
1995; Acts 1997, 75th Leg., ch. 165, Sec. 30.210, eff. Sept. 1,
1997; Acts 1997, 75th Leg., ch. 1183, Sec. 1, eff. Sept. 1, 1997.
Sec. 382.132. Metropolitan Areas Affected.
Rules adopted by the commission under Sections 382.133 through
382.136 apply only to a consolidated metropolitan statistical
area or a metropolitan statistical area with a population of
350,000 or more that, under the federal national ambient air
quality standards provided by Section 181, federal Clean Air Act,
as amended (42 U.S.C. Section 7511 and Table 1), is a serious,
severe, or extreme nonattainment area.
Added by Acts 1991, 72nd Leg., ch. 14, Sec. 141, eff. Sept. 1,
1991.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.190, eff. Sept.
1, 1995; Acts 1997, 75th Leg., ch. 1183, Sec. 2, eff. Sept. 1,
1997.
Sec. 382.133. Mass Transit Fleet Vehicles.
(a) The commission by rule shall require a mass transit
authority to ensure that its vehicles can operate on alternative
fuels.
(b)(1) Rules adopted under this section must require a mass
transit authority to have 50 percent of the authority's fleet
vehicles capable of using alternative fuel.
(2) Vehicles converted, purchased, leased, or otherwise
acquired prior to September 1, 1999, may be counted by the
commission toward compliance with the fleet percentage
requirement and rules adopted by the commission pursuant to
this section if the vehicles are capable of operating on a fuel
or power source recognized by any State of Texas fleet or mass
transit fuel program prior to September 1, 1995, and meet the
following emission standards:
(A) for vehicles under 8,500 pounds gross vehicle weight
rating (GVWR), the federal Tier I emissions standards
pursuant to Section 202 of the federal Clean Air Act, as
amended (42 U.S.C. Section 7521); or
(B) for vehicles over 8,500 pounds gross vehicle weight
rating (GVWR), the federal emission standards in place at
the time of their manufacture.
(3) The percentage requirement of this section may be met,
in whole or in part, through the purchase, lease, or other
acquisition of program compliance credits pursuant to Section
382.142 or through the purchase, lease, or other acquisition of
credits through the Texas Mobile Emissions Reduction Credit
(MERC) Program established pursuant to Section 382.143.
(c) Contingent on the commission's review, not later than
December 31, 1996, of the alternative fuels program established
by this section and the commission's determination that the
program is reducing emissions, is projected to be effective in
improving overall air quality, and is necessary to the attainment
of federal ambient air quality standards in the affected areas,
the rules must require a mass transit authority, not later than
September 1, 1998, to have at least 90 percent of its fleet
vehicles able to operate on an alternative fuel.
Added by Acts 1991, 72nd Leg., ch. 14, Sec. 141, eff. Sept. 1,
1991.
Amended by Acts 1995, 74th Leg., ch. 11, Sec. 2, eff. Sept. 1,
1995; Acts 1995, 74th Leg., ch. 76, Sec. 11.191, eff. Sept. 1,
1995; Acts 1997, 75th Leg., ch. 1183, Sec. 3, eff. Sept. 1, 1997.
Sec. 382.134. Local Government and Private Fleet Vehicles.
(a) This section applies only to:
(1) a local government that operates primarily in an
affected area a fleet of more than 15 vehicles, excluding law
enforcement and emergency vehicles; and
(2) a private person that operates primarily in an affected
area a fleet of more than 25 fleet vehicles, excluding
emergency vehicles.
(b) The board by rule shall require a local government or a
private person to ensure that its fleet vehicles can operate on
an alternative fuel.
(c) Rules adopted by the board must require a local government
or private person to have a proportion of the person's newly
purchased fleet vehicles and a proportion of the fleet vehicles
in the person's total fleet able to operate on an alternative
fuel according to the following schedule:
(1) 30 percent of fleet vehicles purchased after September
1, 1998, or at least 10 percent of the fleet vehicles in the
total fleet as of September 1, 1998;
(2) 50 percent of fleet vehicles purchased after September
1, 2000; and
(3) 70 percent of light-duty fleet vehicles purchased after
September 1, 2002, and 50 percent of the heavy-duty fleet
vehicles purchased after September 1, 2002.
(d) Rules adopted by the board may not require a local
government or private person to purchase a fleet vehicle able to
operate on an alternative fuel if the person maintains a
proportion of 70 percent or more alternative fuel vehicles in the
person's fleet.
(e) The choice of clean-fuel vehicles and alternative fuels is
in the fleet operator's discretion.
(f) The requirements imposed by this section may be met by the
conversion of currently owned or newly purchased gasoline-fueled
or diesel-fueled vehicles to operate on an alternative fuel. For
purposes of this section, the conversion of a vehicle to operate
on an alternative fuel shall be treated the same as the purchase
of a vehicle able to operate on an alternative fuel. Nothing in
this section shall be construed to require conversion.
Added by Acts 1991, 72nd Leg., ch. 14, Sec. 141, eff. Sept. 1,
1991.
Amended by Acts 1995, 74th Leg., ch. 11, Sec. 3, eff. Sept. 1,
1995; Acts 1995, 74th Leg., ch. 76, Sec. 11.192, eff. Sept. 1,
1995; Acts 1997, 75th Leg., ch. 1183, Sec. 4, eff. Sept. 1, 1997.
Sec. 382.135. Dual Fuel Conversion.
(a) The percentage requirements of Section 382.133 may be met
by the dual fuel conversion or capability of conventional
gasoline-powered or diesel-powered vehicles to operate also on an
alternative fuel.
(b) The percentage requirements of Section 382.134 may be met
by the dual fuel conversion or capability of conventional
gasoline-powered or diesel-powered vehicles to operate also on an
alternative fuel.
Added by Acts 1991, 72nd Leg., ch. 14, Sec. 141, eff. Sept. 1,
1991.
Amended by Acts 1995, 74th Leg., ch. 11, Sec. 4, eff. Sept. 1,
1995.
Sec. 382.136. Exceptions.
(a) The commission may make exceptions to rules adopted under
Sections 382.133 and 382.134 if:
(1) a firm engaged in fixed price contracts with public
works agencies can demonstrate that compliance with the
requirements of those sections would result in substantial
economic harm to the firm under a contract entered into before
September 1, 1997;
(2) an alternative fuel that meets the normal requirements
of the principal business of the affected entity is not
available in the area in which the vehicles are to be operated;
(3) the affected entity is unable to secure financing
provided by or arranged through the proposed supplier or
suppliers of the fuels required under Sections 382.133 and
382.134 sufficient to cover the additional costs of such
fueling;
(4) the projected net costs attributable to fueling for
conversion or replacement and operation of conventionally
fueled vehicles or engines with those capable of operating on
the fuels required under Sections 382.133 and 382.134
reasonably are expected to exceed comparable costs for
conventional vehicles measured over the expected useful life of
such vehicles or engines and after including in such cost
calculations any available state or federal funding or
incentives for the use of the fuels required under Sections
382.133 and 382.134; or
(5) original equipment vehicles, or vehicles that may be
converted to operate on an alternative fuel, that meet the
affected entity's normal requirements and practices of the
principal business and have been certified by the United States
Environmental Protection Agency as clean fuel vehicles are not
available.
(b) To qualify for an exception under Subsection (a), an
affected entity must provide data requested by the commission to
document the unavailability of a refueling station or of
financing to cover the additional costs of alternative fueling.
Added by Acts 1991, 72nd Leg., ch. 14, Sec. 141, eff. Sept. 1,
1991.
Amended by Acts 1995, 74th Leg., ch. 11, Sec. 5, eff. Sept. 1,
1995; Acts 1995, 74th Leg., ch. 76, Sec. 11.193, eff. Sept. 1,
1995; Acts 1997, 75th Leg., ch. 1183, Sec. 5, eff. Sept. 1, 1997.
Sec. 382.137. Data Collection.
An affected entity shall support the commission in collecting
reasonable information needed to determine air quality benefits
from use of alternative fuels in affected areas.
Added by Acts 1991, 72nd Leg., ch. 14, Sec. 141, eff. Sept. 1,
1991.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.193, eff. Sept.
1, 1995.
Sec. 382.138. Evaluation of Alternative Fuels Use.
(a) In conjunction with the development of state implementation
plans for achieving and maintaining compliance with federal
ambient air quality standards under the federal Clean Air Act (42
U.S.C. Section 7401 et seq.), the commission shall evaluate and
determine, for areas required by federal law to have state
implementation plans, the effectiveness of and need for the use
of alternative fuels in vehicles.
(b) The evaluation and determination must include:
(1) the uses of alternative fuels required by Section
382.134; and
(2) additional or different uses of alternative fuels.
(c) In making evaluations and determinations under this
section, the commission shall:
(1) review reports received by the commission on alternative
fuels programs;
(2) consult with a reporting entity on the contribution the
entity's program is making toward achieving and maintaining
compliance with federal ambient air quality standards; and
(3) consider for each category of vehicles the factors
required for the development of state implementation plans
under the federal Clean Air Act (42 U.S.C. Section 7401 et
seq.) and this chapter.
(d) Before making a determination under this subchapter, the
commission shall solicit comments from the Department of Public
Safety and the Railroad Commission of Texas concerning any effect
on public safety.
Added by Acts 1991, 72nd Leg., ch. 14, Sec. 141, eff. Sept. 1,
1991.
Amended by Acts 1995, 74th Leg., ch. 11, Sec. 6, eff. Sept. 1,
1995; Acts 1995, 74th Leg., ch. 76, Sec. 11.194, eff. Sept. 1,
1995.
Sec. 382.139. Additional Alternative Fuels Use.
(a) If, after considering the factors listed in Section
382.138, the commission determines that the use of alternative
fuels for certain categories of motor vehicles is effective and
necessary for achieving or maintaining compliance with federal
ambient air quality standards, the commission by rule shall
require those uses in addition to uses required elsewhere in this
subchapter.
(b) If, after considering the factors listed in Section
382.138, the commission determines that the additional uses are
appropriate, the commission may establish and implement programs
encouraging the use of alternative fuels for certain categories
of vehicles.
Added by Acts 1991, 72nd Leg., ch. 14, Sec. 141, eff. Sept. 1,
1991.
Amended by Acts 1995, 74th Leg., ch. 11, Sec. 7, eff. Sept. 1,
1995; Acts 1995, 74th Leg., ch. 76, Sec. 11.195, eff. Sept. 1,
1995.
Sec. 382.140. Studies; Pilot Programs.
(a) In connection with the evaluations and determinations
required under Section 382.138 and encouraging the use of
alternative fuels, the commission may conduct or have conducted
appropriate studies or pilot programs.
(b) A study or pilot program may assess the feasibility of
adopting vehicle emission standards more stringent than those
adopted by the United States Environmental Protection Agency
under the federal Clean Air Act (42 U.S.C. Section 7401 et seq.).
Added by Acts 1991, 72nd Leg., ch. 14, Sec. 141, eff. Sept. 1,
1991.
Amended by Acts 1995, 74th Leg., ch. 11, Sec. 8, eff. Sept. 1,
1995; Acts 1995, 74th Leg., ch. 76, Sec. 11.196, eff. Sept. 1,
1995.
Sec. 382.141. Report Required.
The commission shall report biennially its evaluations and
determinations on the use of alternative fuels and recommend
legislative changes necessary to implement an effective and
feasible program for the use of alternative fuels. The report
shall be submitted by December 1 of each even-numbered year as
required by Section 5.178(b), Water Code.
Added by Acts 1991, 72nd Leg., ch. 14, Sec. 141, eff. Sept. 1,
1991.
Amended by Acts 1995, 74th Leg., ch. 11, Sec. 9, eff. Sept. 1,
1995; Acts 1995, 74th Leg., ch. 76, Sec. 11.197, eff. Sept. 1,
1995; Acts 1997, 75th Leg., ch. 1082, Sec. 10, eff. Sept. 1,
1997.
Sec. 382.142. Program Compliance Credits.
(a) The percentage requirements of Sections 382.133 and 382.134
may be met, in whole or in part, through the purchase, lease, or
other acquisition of the required percentages of clean-fuel
vehicles or through the acquisition or use of program compliance
credits.
(b) Rules adopted under this section shall provide for the
issuance of appropriate program compliance credits to a vehicle
owner or operator for one or any combination of the following
actions:
(1) the purchase, lease, or acquisition of a clean-fuel
vehicle which meets more stringent emissions control standards
than those otherwise required under this Act;
(2) the purchase, lease, or acquisition of clean-fuel
vehicles in greater numbers than otherwise required under
Sections 382.133 and 382.134;
(3) the purchase, lease, or acquisition of a clean-fuel
vehicle in a category not otherwise required by this
subchapter; and
(4) the purchase, lease, or acquisition of a clean-fuel
vehicle prior to the dates otherwise required under Sections
382.133 and 382.134.
(c) Program compliance credits shall be awarded based upon the
emissions certification level of the vehicle generating the
credit. Vehicles which provide greater emissions reductions
levels will be entitled to a greater number of credits as
follows:
(1) LEVs--one credit;
(2) ULEVs--two credits; and
(3) ILEVs and ZEVs--three credits.
(d) Program compliance credits issued for the purchase, lease,
or other acquisition of a vehicle pursuant to this section may be
used to demonstrate compliance with the percentage requirements
of Sections 382.133 and 382.134, they may be banked for later
use, or they may be traded, sold, or purchased, for use by any
other person in the same nonattainment area, to demonstrate
compliance with the percentage requirements of Sections 382.133
and 382.134.
(e) Fleet vehicles converted, purchased, leased, or otherwise
acquired prior to September 1, 1995, may be counted toward
compliance with the applicable fleet percentage requirements of
Section 382.134 if the vehicles are capable of operating on a
fuel or power source recognized by any State of Texas fleet fuel
program prior to September 1, 1995.
(f) This section shall not apply to all vehicles purchased,
leased, or otherwise acquired pursuant to Section 2158.001(a),
Government Code.
Added by Acts 1995, 74th Leg., ch. 11, Sec. 10, eff. Sept. 1,
1995. Amended by Acts 1997, 75th Leg., ch. 165, Sec. 6, eff.
Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1183, Sec. 6, eff. Sept.
1, 1997.
Sec. 382.143. Texas Mobile Emissions Reduction Credit Program.
(a) The board by rule shall establish a Texas Mobile Emissions
Reduction Credit (MERC) Program.
(b) Rules adopted under this section shall provide for the
following program elements:
(1) program participation shall be as follows:
(A) entry into the program is voluntary; and
(B) both fleet owners or operators subject to the
percentage requirements of Sections 382.133 and 382.134 and
vehicle owners or operators who are not subject to those
percentage requirements may generate mobile emissions
reduction credits under this program, although the board may
require a certain minimum number of vehicles to participate;
(2) mobile emissions reduction credits shall be calculated
on a per-pollutant basis and shall be granted to a
participating vehicle owner or operator for any of the
following:
(A) purchase, lease, or acquisition of more or cleaner
vehicles than otherwise required by law; or
(B) entering into a binding contract with the board to
purchase, lease, or acquire at some future date more or
cleaner vehicles than otherwise required by law;
(3) mobile emissions reduction credit values shall be
determined in accordance with United States Environmental
Protection Agency rules and guidance;
(4) mobile emissions reduction credits may be used as
follows:
(A) to demonstrate compliance with any applicable mobile
source emissions reductions requirements; and
(B) to satisfy Reasonably Available Control Technology
and Clean Air Act offset requirements, subject to the
appropriate trading ratios; and
(5) all mobile emissions reduction credits generated in
accordance with this section may, within the same nonattainment
area, be sold, traded, or banked for later use among fleet
vehicle owners or other mobile or stationary sources of
emissions without discount or depreciation of such credits.
(c)(1) Texas Mobile Emissions Reduction Credit Fund is created
and is to be administered by the board.
(2) Mobile emissions reduction credits shall be assigned
from the Texas Mobile Emissions Reduction Credit Fund to
vehicle owners or operators qualified under this section to
generate and receive mobile emissions reduction credits if the
following conditions are met:
(A) the vehicle owner or operator enters into a binding
contract with the board, agreeing to purchase and place in
service in designated program areas clean-fuel vehicles in
accordance with the number of credits issued and the time
frame specified by the board; and
(B) the vehicle owner or operator agrees to name the
United States Environmental Protection Agency as a
third-party beneficiary of its contract with the board.
(3) Contracts entered into under this section may be
enforced in the courts of the State of Texas by an order of
specific performance.
(d) The acquisition of qualifying clean-fuel vehicles may
qualify both for mobile emissions reduction credits under this
section and for program compliance credits under Section 382.142.
(e) The following shall be considered violations of the Texas
Mobile Emissions Reduction Credit Program:
(1) claiming a mobile emissions reduction credit without
meeting the appropriate acquisition requirements and submitting
any other data required by board rules; or
(2) counterfeiting or dealing commercially in counterfeit
mobile emissions reduction credit certificates.
(f) Any person found by the board to be in violation under
Subsection (e) shall be subject to a civil penalty of not more
than $25,000 per violation.
(g) The credit trading program established by this section
shall be administered as follows:
(1) Mobile emissions reduction credits must be banked in
accordance with the then existing board rules.
(2) MERCs may be generated on a per-pollutant basis in the
following ways:
(A) after September 1, 1994, the use, conversion,
purchase, or acquisition of more clean-fuel vehicles than
required by the fleet percentage requirements of Sections
382.133 and 382.134, according to the following formula:
(additional emissions benefit x VMT x CF)
MERC grams per year
= n
where:
(i) additional emissions benefit is the
in-use emissions difference between the emission certification
standard of the conventionally fueled baseline vehicle and the
LEV emission standards. For evaporative emissions, benefit will
be derived from the most recently EPA approved mobile emissions
estimation model;
(ii) VMT is the total remaining vehicle miles
to be traveled;
(iii) CF is the conversion factor for
heavy-duty vehicles which is: brake specific fuel consumption x
fuel economy x fuel density;
(iv) n is the estimated fleet life of the
vehicle measured in years;
(B) the purchase or acquisition of vehicles which meet
emission standards more stringent than the LEV emission
standards, according to the following formula:
(cleaner vehicle benefit x VMT x CF)
MERC grams per year
= n
where cleaner vehicle benefit is the in-use emissions rate
difference between the LEV emission standards and the standard to
which the vehicle is actually certified;
(C) the purchase or acquisition of a vehicle with
certified levels of evaporative emissions less than five
grams per test, according to the following formula:
(vapor improvement x VMT)
MERC grams per year
= n
where vapor improvement is the in-use emissions rate difference
between conventional and low vapor emission vehicles calculated
using the most recently approved EPA mobile emissions model.
(3) The vehicle owners or operators applying for a MERC
shall submit a registration application to the board using an
approved MERC registration form. The application must clearly
state the following information for each vehicle generating
credit:
(A) the emissions standard of the vehicle as certified
pursuant to this Act;
(B) the number of remaining vehicle miles to be
traveled;
(C) the number of years the vehicle will be used as a
fleet vehicle; and
(D) the results from the MERC calculation used to
estimate the credit value in grams per year.
(4) The MERC registration must include information
sufficient to calculate the MERC's value under Subdivision
(g)(2) of this section.
(5) The board will evaluate the claimed credits and may
adjust the value of the MERCs based on the evaluation.
(6) MERC registration applications must be received at least
90 days prior to using the MERC.
(7) The board will have 30 days from the date of receipt to
determine if the MERC registration application is complete.
(8) The board will have 90 days from date of receipt of the
completed application to approve or deny the MERC registration.
(9) The board may revoke approval of a MERC registration
under this section at any time on determining that the
requirements of this section are not being met.
(h) This section also applies to all vehicles purchased,
leased, or otherwise acquired pursuant to:
(A) Subchapter G, Chapter 451, Transportation Code;
(B) Subchapter F, Chapter 452, Transportation Code;
(C) Subchapter F, Chapter 453, Transportation Code; and
(D) Section 2158.003, Government Code.
Added by Acts 1995, 74th Leg., ch. 11, Sec. 10, eff. Sept. 1,
1995. Amended by Acts 1997, 75th Leg., ch. 165, Sec. 6.44, eff.
Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1183, Sec. 7, eff. Sept.
1, 1997