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2009 Texas Code
HEALTH AND SAFETY CODE
TITLE 5. SANITATION AND ENVIRONMENTAL QUALITY
CHAPTER 382. CLEAN AIR ACT

HEALTH AND SAFETY CODE

TITLE 5. SANITATION AND ENVIRONMENTAL QUALITY

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.

(1-a) "Advanced clean energy project" means a project for which

an application for a permit or for an authorization to use a

standard permit under this chapter is received by the commission

on or after January 1, 2008, and before January 1, 2020, and

that:

(A) involves the use of coal, biomass, petroleum coke, solid

waste, or fuel cells using hydrogen derived from such fuels, in

the generation of electricity, or the creation of liquid fuels

outside of the existing fuel production infrastructure while

co-generating electricity, whether the project is implemented in

connection with the construction of a new facility or in

connection with the modification of an existing facility and

whether the project involves the entire emissions stream from the

facility or only a portion of the emissions stream from the

facility;

(B) with regard to the portion of the emissions stream from the

facility that is associated with the project, is capable of

achieving:

(i) on an annual basis a 99 percent or greater reduction of

sulfur dioxide emissions or, if the project is designed for the

use of feedstock substantially all of which is subbituminous

coal, an emission rate of 0.04 pounds or less of sulfur dioxide

per million British thermal units as determined by a 30-day

average;

(ii) on an annual basis a 95 percent or greater reduction of

mercury emissions;

(iii) an annual average emission rate for nitrogen oxides of:

(a) 0.05 pounds or less per million British thermal units; or

(b) if the project uses gasification technology, 0.034 pounds or

less per million British thermal units; and

(iv) an annual average emission rate for filterable particulate

matter of 0.015 pounds or less per million British thermal units;

and

the portion of the emissions stream from the facility that is

associated with the project and sequesters that captured carbon

dioxide by geologic storage or other means.

(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.

(3-a) "Coal" has the meaning assigned by Section 134.004,

Natural Resources Code.

(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);

(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).

(7-a) "Federally qualified clean coal technology" means a

technology or process, including a technology or process applied

at the precombustion, combustion, or postcombustion stage, for

use at a new or existing facility that will achieve on an annual

basis a 97 percent or greater reduction of sulfur dioxide

emissions, an emission rate for nitrogen oxides of 0.08 pounds or

less per million British thermal units, and significant

reductions in mercury emissions associated with the use of coal

in the generation of electricity, process steam, or industrial

products, including the creation of liquid fuels, hydrogen for

fuel cells, and other coproducts. The technology used must

comply with applicable federal law regarding mercury emissions

and must render carbon dioxide capable of capture, sequestration,

or abatement. Federally qualified clean coal technology includes

atmospheric or pressurized fluidized bed combustion technology,

integrated gasification combined cycle technology, methanation

technology, magnetohydrodynamic technology, direct and indirect

coal-fired turbines, undiluted high-flame temperature oxygen

combustion technology that excludes air, and integrated

gasification fuel cells.

(7-b) "Hybrid motor vehicle" means a motor vehicle that draws

propulsion energy from both gasoline or conventional diesel fuel

and a rechargeable energy storage system.

(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;

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

commission 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 a multiple plant 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.

(9-a) "Motor vehicle" means a fully self-propelled vehicle

having four wheels that has as its primary purpose the transport

of a person or persons, or property, on a public highway.

(10) "Person" means an individual, corporation, organization,

government or governmental subdivision or agency, business trust,

partnership, association, or any other legal entity.

(10-a) "Qualifying motor vehicle" means a motor vehicle that

meets the requirements of Section 382.210(b).

(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.

(11-a) "Solid waste" has the meaning assigned by Section

361.003.

(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; 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;

Acts 1999, 76th Leg., ch. 62, Sec. 11.04(a), eff. Sept. 1, 1999;

Acts 1999, 76th Leg., ch. 406, Sec. 1, eff. Aug. 30, 1999.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

262, Sec. 1.01, eff. June 8, 2007.

Acts 2007, 80th Leg., R.S., Ch.

1277, Sec. 2, eff. September 1, 2007.

Acts 2009, 81st Leg., R.S., Ch.

87, Sec. 27.001(55), eff. September 1, 2009.

Acts 2009, 81st Leg., R.S., Ch.

1109, Sec. 2, eff. September 1, 2009.

Acts 2009, 81st Leg., R.S., Ch.

1125, Sec. 3, eff. September 1, 2009.

Sec. 382.004. CONSTRUCTION WHILE PERMIT APPLICATION PENDING.

(a) To the extent permissible under federal law and

notwithstanding Section 382.0518, a person who submits an

application for a permit for a modification of or a lesser change

to an existing facility under this subtitle may, at the person's

own risk, begin construction related to the application after the

application is submitted and before the commission has issued the

permit.

(b) The commission may not consider construction begun under

this section in determining whether to grant the permit sought in

the application.

Added by Acts 2005, 79th Leg., Ch.

422, Sec. 1, eff. September 1, 2005.

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.

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

(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.

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.

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; Acts 1995, 74th Leg., ch. 76, Sec. 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. (a) 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.

(b) For purposes of any emissions control or permit program

adopted or administered by the commission and subject to

Subsection (c), the commission, to the extent allowed by federal

law, may:

(1) authorize the use of emissions reductions achieved outside

the United States to satisfy otherwise applicable emissions

reduction requirements if the commission finds that the emissions

reductions achieved outside the United States are surplus to

requirements imposed by applicable law and are appropriately

quantifiable and enforceable; and

(2) allow the use of reductions in emissions of one air

contaminant to satisfy otherwise applicable requirements for

reductions in emissions of another air contaminant if the

commission finds that the air contaminant emissions reductions

that will be substituted are of equal or greater significance to

the overall air quality of the area affected than reductions in

emissions of the other air contaminant.

emissions reductions under Subsection (b) only if:

(1) reductions in emissions of one air contaminant for which the

area has been designated as nonattainment are substituted for

reductions in emissions of another air contaminant for which the

area has been designated as nonattainment; or

(2) the commission finds that the substitution will clearly

result in greater health benefits for the community as a whole

than would reductions in emissions at the original facility.

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; Acts 2001, 77th Leg., ch. 960, Sec.

1, eff. Sept. 1, 2001.

Amended by:

Acts 2005, 79th Leg., Ch.

820, Sec. 1, eff. September 1, 2005.

Acts 2005, 79th Leg., Ch.

1125, Sec. 1, eff. September 1, 2005.

Sec. 382.0173. ADOPTION OF RULES REGARDING CERTAIN STATE

IMPLEMENTATION PLAN REQUIREMENTS AND STANDARDS OF PERFORMANCE FOR

CERTAIN SOURCES. (a) The commission shall adopt rules to comply

with Sections 110(a)(2)(D) and 111(d) of the federal Clean Air

Act (42 U.S.C. Sections 7410 and 7411). In adopting the rules,

at a minimum the commission shall adopt and incorporate by

reference 40 C.F.R. Subparts AA through II and Subparts AAA

through III of Part 96 and 40 C.F.R. Subpart HHHH of Part 60.

The commission shall adopt a state implementation plan in

accordance with the rules and submit the plan to the United

States Environmental Protection Agency for approval according to

the schedules adopted by that agency.

(b) The commission may require emissions reductions in

conjunction with implementation of the rules adopted under

Subsection (a) only for electric generating units. The

commission shall make permanent allocations that are reflective

of the allocation requirements of 40 C.F.R. Subparts AA through

HH and Subparts AAA through HHH of Part 96 and 40 C.F.R. Subpart

HHHH of Part 60, as applicable, at no cost to units as defined in

40 C.F.R. Sections 51.123 and 60.4102 using the United States

Environmental Protection Agency's allocation method as specified

by 40 C.F.R. Section 60.4142(a)(1)(i) or 40 C.F.R. Section

96.142(a)(1)(i), as applicable, with the exception of nitrogen

oxides which shall be allocated according to the additional

requirements of Subsection (c). The commission shall maintain a

special reserve of allocations for new units commencing operation

on or after January 1, 2001, as defined by 40 C.F.R. Subparts AA

through HH and Subparts AAA through HHH of Part 96 and 40 C.F.R.

Subpart HHHH of Part 60, as applicable, with the exception of

nitrogen oxides which shall be allocated according to the

additional requirements of Subsection (c).

(1) The commission shall maintain a special reserve of

allocations for nitrogen oxide of 9.5 percent for new units.

Beginning with the 2015 control period, units shall be considered

new for each control period in which they do not have five years

of operating data reported to the commission prior to the date of

allocation for a given control period. Prior to the 2015 control

period, units that commenced operation on or after January 1,

2001, will receive NOx allocations from the special reserve only.

(2) Nitrogen oxide allowances shall be established for the

2009-2014 control periods for units commencing operation before

January 1, 2001, using the average of the three highest amounts

of the unit's adjusted control period heat input for 2000 through

2004, with the adjusted control period heat input for each year

calculated as follows:

(A) if the unit is coal-fired during the year, the unit's

control period heat input for such year is multiplied by 90

percent;

(B) if the unit is natural gas-fired during the year, the unit's

control period heat input for such year is multiplied by 50

percent; and

(A) or (B) of this subdivision, the unit's control period heat

input for such year is multiplied by 30 percent.

(3) Before the allocation date specified by EPA for the control

period beginning January 1, 2018, and every five years

thereafter, the commission shall adjust the baseline for all

affected units using the average of the three highest amounts of

the unit's adjusted control period heat input for periods one

through five of the preceding nine control periods, with the

adjusted control period heat input for each year calculated as

follows:

(A) for units commencing operation before January 1, 2001:

(i) if the unit is coal-fired during the year, the unit's

control period heat input for such year is multiplied by 90

percent;

(ii) if the unit is natural gas-fired during the year, the

unit's control period heat input for such year is multiplied by

50 percent; and

(iii) if the fossil fuel fired unit is not subject to

Subparagraph (i) or (ii) of this paragraph, the unit's control

period heat input for such year is multiplied by 30 percent; and

(B) for units commencing operation on or after January 1, 2001,

in accordance with the formulas set forth by USEPA in 40 C.F.R.

96.142 with any corrections to this section that may be issued by

USEPA prior to the allocation date.

(d) This section applies only while the federal rules cited in

this section are enforceable and does not limit the authority of

the commission to implement more stringent emissions control

requirements.

(e) In adopting rules under Subsection (a), the commission shall

incorporate any modifications to the federal rules cited in this

section that result from:

(1) a request for rehearing regarding those rules that is filed

with the United States Environmental Protection Agency;

(2) a petition for review of those rules that is filed with a

court; or

(3) a final rulemaking action of the United States Environmental

Protection Agency.

(f) The commission shall take all reasonable and appropriate

steps to exclude the West Texas Region and El Paso Region, as

defined by Section 39.264(g), Utilities Code, from any

requirement under, derived from, or associated with 40 C.F.R.

Sections 51.123, 51.124, and 51.125, including filing a petition

for reconsideration with the United States Environmental

Protection Agency requesting that it amend 40 C.F.R. Sections

51.123, 51.124, and 51.125 to exclude such regions. The

commission shall promptly amend the rules it adopts under

Subsection (a) of this section to incorporate any exclusions for

such regions that result from the petition required under this

subsection.

(g) The commission shall study the availability of mercury

control technology. The commission shall also examine the

timeline for implementing the reductions required under the

federal rules, the cost of additional controls both to the plant

owners and consumers, and the fiscal impact on the state of

higher levels of mercury emissions between 2005 and 2018, and

consider the impact of trading on local communities. The

commission shall report its findings by September 1, 2006.

Added by Acts 2005, 79th Leg., Ch.

1125, Sec. 2, eff. September 1, 2005.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

56, Sec. 1, eff. May 10, 2007.

Sec. 382.018. OUTDOOR BURNING OF WASTE AND COMBUSTIBLE MATERIAL.

(a) Subject to Section 352.082, Local Government Code, and

except as provided by Subsections (b) and (d), 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.

(b) The commission by rule shall authorize outdoor burning of

waste if the waste:

(1) consists of trees, brush, grass, leaves, branch trimmings,

or other plant growth; and

(2) is burned:

(A) in an area that meets the national ambient air quality

standards and that does not contain any part of a city that does

not meet national ambient air quality standards; and

(B) on the property on which it was generated and by the owner

of the property or any other person authorized by the owner.

(1) require prior commission approval of the burning; or

(2) authorize the burning only when no practical alternative to

burning exists.

(d) The commission may not control or prohibit outdoor burning

of waste consisting of trees, brush, grass, leaves, branch

trimmings, or other plant growth if:

(1) the person burning the waste is doing so at a site:

(A) designated for consolidated burning of waste generated from

specific residential properties;

(B) located in a county with a population of less than 50,000;

(D) supervised at the time of the burning by an employee of a

fire department who is part of the fire protection personnel, as

defined by Section 419.021, Government Code, of the department

and is acting in the scope of the person's employment; and

(2) the waste was generated from a property for which the site

is designated.

(e) A fire department employee who will supervise a burning

under Subsection (d)(1)(D) shall notify the commission of each

burning supervised by the employee, and the commission shall

provide the employee with information on practical alternatives

to 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.

Amended by:

Acts 2005, 79th Leg., Ch.

419, Sec. 1, eff. September 1, 2005.

Acts 2005, 79th Leg., Ch.

904, Sec. 1, eff. September 1, 2005.

Reenacted and amended by Acts 2007, 80th Leg., R.S., Ch.

921, Sec. 8.001, eff. September 1, 2007.

Sec. 382.019. METHODS USED TO CONTROL AND REDUCE EMISSIONS FROM

LAND VEHICLES. (a) Except as provided by Section 382.202(j), or

another provision of this chapter, 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.

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; Acts 1995, 74th Leg., ch. 76, Sec. 11.147, eff.

Sept. 1, 1995; Acts 2001, 77th Leg., ch. 965, Sec. 15.01, eff.

Sept. 1, 2001; Acts 2003, 78th Leg., ch. 1276, Sec. 10.008(b),

eff. Sept. 1, 2003.

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.

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. 382.0201. PROHIBITION ON COMMISSION RULE RELATING TO

EMISSIONS FROM CERTAIN HOSPITAL OR MEDICAL DISINFECTANTS. (a)

In this section, "hospital or medical disinfectant" means an

antimicrobial product that is registered with and meets the

performance standards of the United States Environmental

Protection Agency under the Federal Insecticide, Fungicide, and

Rodenticide Act (7 U.S.C. Sections 136, 136a).

(b) Except as specifically required to comply with federal law

or regulation, the commission may not adopt a rule that lessens

the efficacy of a hospital or medical disinfectant in killing or

inactivating agents of an infectious disease, including a rule

restricting volatile organic compound content of or emissions

from the disinfectant.

Added by Acts 1999, 76th Leg., ch. 364, Sec. 1, eff. Sept. 1,

1999.

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. 382.0215. ASSESSMENT OF EMISSIONS DUE TO EMISSIONS EVENTS.

(a) In this section:

(1) "Emissions event" means an upset event, or unscheduled

maintenance, startup, or shutdown activity, from a common cause

that results in the unauthorized emissions of air contaminants

from one or more emissions points at a regulated entity.

(2) "Regulated entity" means all regulated units, facilities,

equipment, structures, or sources at one street address or

location that are owned or operated by the same person. The term

includes any property under common ownership or control

identified in a permit or used in conjunction with the regulated

activity at the same street address or location.

(a-1) Maintenance, startup, and shutdown activities shall not be

considered unscheduled only if the activity will not and does not

result in the emission of at least a reportable quantity of

unauthorized emissions of air contaminants and the activity is

recorded as may be required by commission rule, or if the

activity will result in the emission of at least a reportable

quantity of unauthorized emissions and:

(1) the owner or operator of the regulated entity provides any

prior notice or final report that the commission, by rule, may

establish;

(2) the notice or final report includes the information required

in Subsection (b)(3); and

(3) the actual emissions do not exceed the estimates submitted

in the notice by more than a reportable quantity.

(b) The commission shall require the owner or operator of a

regulated entity that experiences emissions events:

(1) to maintain a record of all emissions events at the

regulated entity in the manner and for the periods prescribed by

commission rule;

(2) to notify the commission in a single report for each

emissions event, as soon as practicable but not later than 24

hours after discovery of the emissions event, of an emissions

event resulting in the emission of a reportable quantity of air

contaminants as determined by commission rule; and

(3) to report to the commission in a single report for each

emissions event, not later than two weeks after the occurrence of

an emissions event that results in the emission of a reportable

quantity of air contaminants as determined by commission rule,

all information necessary to evaluate the emissions event,

including:

(A) the name of the owner or operator of the reporting regulated

entity;

(B) the location of the reporting regulated entity;

(D) the duration of the emissions;

(E) the nature and measured or estimated quantity of air

contaminants emitted, including the method of calculation of, or

other basis for determining, the quantity of air contaminants

emitted;

(F) the processes and equipment involved in the emissions event;

(G) the cause of the emissions; and

(H) any additional information necessary to evaluate the

emissions event.

fueled by natural gas, coal, lignite, wood, or fuel oil

containing hazardous air pollutants at concentrations of less

than 0.02 percent by weight that is equipped with a continuous

emission monitoring system that completes a minimum of one cycle

per operation (sampling, analyzing, and data recording) for each

successive 15-minute interval who is required to submit excess

emission reports by other state or federal regulations, shall, by

commission rule, be allowed to submit information from that

monitoring system to meet the requirements under Subsection

(b)(3) so long as the notice submitted under Subsection (b)(2)

contains the information required under Subsection (b)(3). Such

excess emission reports shall satisfy the recordkeeping

requirements of Subsection (b)(1) so long as the information in

such reports meets commission requirements. This subsection does

not require the commission to revise the reportable quantity for

boilers and combustion turbines.

(d) The commission shall centrally track emissions events and

collect information relating to:

(1) inspections or enforcement actions taken by the commission

in response to emissions events; and

(2) the number of emissions events occurring in each commission

region and the quantity of emissions from each emissions event.

(e) The commission shall develop the capacity for electronic

reporting and shall incorporate reported emissions events into a

permanent centralized database for emissions events. The

commission shall develop a mechanism whereby the reporting entity

shall be allowed to review the information relative to its

reported emissions events prior to such information being

included in the database. The database shall be accessible to the

public. The commission shall evaluate information in the database

to identify persons who repeatedly fail to report reportable

emissions events. The commission shall enforce against such

persons pursuant to Section 382.0216(i). The commission shall

describe such enforcement actions in the report required in

Subsection (g).

(f) An owner or operator of a regulated entity required by

Section 382.014 to submit an annual emissions inventory report

and which has experienced no emissions events during the relevant

year must include as part of the inventory a statement that the

regulated entity experienced no emissions events during the prior

year. An owner or operator of a regulated entity required by

Section 382.014 to submit an annual emissions inventory report

must include the total annual emissions from all emissions events

in categories as established by commission rule.

(g) The commission annually shall assess the information

received under this section, including actions taken by the

commission in response to the emissions events, and shall include

the assessment in the report required by Section 5.126, Water

Code.

(h) The commission may allow operators of pipelines, gathering

lines, and flowlines to treat all such facilities under common

ownership or control in a particular county as a single regulated

entity for the purpose of assessment and regulation of emissions

events.

Added by Acts 2001, 77th Leg., ch. 965, Sec. 5.01(a), eff. Sept.

1, 2001.

Amended by:

Acts 2005, 79th Leg., Ch.

728, Sec. 9.0035(a), eff. September 1, 2005.

Acts 2005, 79th Leg., Ch.

1095, Sec. 1, eff. September 1, 2005.

Sec. 382.0216. REGULATION OF EMISSIONS EVENTS. (a) In this

section, "emissions event" has the meaning assigned by Section

382.0215.

(b) The commission shall establish criteria for determining when

emissions events are excessive. The criteria must include

consideration of:

(1) the frequency of the facility's emissions events;

(2) the cause of the emissions event;

(3) the quantity and impact on human health or the environment

of the emissions event;

(4) the duration of the emissions event;

(5) the percentage of a facility's total annual operating hours

during which emissions events occur; and

(6) the need for startup, shutdown, and maintenance activities.

reduce emissions from excessive emissions events. Consistent with

commission rules, a facility required to take action under this

subsection must either file a corrective action plan or file a

letter of intent to obtain authorization for emissions from the

excessive emissions events, provided that the emissions are

sufficiently frequent, quantifiable, and predictable. If the

intended authorization is a permit, a permit application shall be

filed within 120 days of the filing of the letter of intent. If

the intended authorization is a permit by rule or standard

exemption, the authorization must be obtained within 120 days of

the filing of the letter of intent. If the commission denies the

requested authorization, within 45 days of receiving notice of

the commission's denial, the facility shall file a corrective

action plan to reduce emissions from the excessive emissions

events.

(d) A corrective action plan filed under Subsection (c) must

identify the cause or causes of each emissions event, specify the

control devices or other measures that are reasonably designed to

prevent or minimize similar emissions events in the future, and

specify a time within which the corrective action plan will be

implemented. A corrective action plan must be approved by the

commission. A corrective action plan shall be deemed approved 45

days after filing, if the commission has not disapproved the

plan; however, an owner or operator may request affirmative

commission approval, in which case the commission must take final

written action to approve or disapprove the plan within 120 days.

An approved corrective action plan shall be made available to the

public by the commission, except to the extent information in the

plan is confidential information protected under Chapter 552,

Government Code. The commission shall establish reasonable

schedules for the implementation of corrective action plans and

procedures for revision of a corrective action plan if the

commission finds the plan, after implementation begins, to be

inadequate to meet the goal of preventing or minimizing emissions

and emissions events. The implementation schedule shall be

enforceable by the commission.

(e) The rules may not exclude from the requirement to submit a

corrective action plan emissions events resulting from the lack

of preventive maintenance or from operator error, or emissions

that are a part of a recurring pattern of emissions events

indicative of inadequate design or operation.

(f) The commission by rule may establish an affirmative defense

to a commission enforcement action if the emissions event meets

criteria defined by commission rule. In establishing rules under

this subsection, the commission at a minimum must require

consideration of the factors listed in Subsections (b)(1)-(6).

(g) The burden of proof in any claim of a defense to commission

enforcement action for an emissions event is on the person

claiming the defense.

(h) A person may not claim an affirmative defense to a

commission enforcement action if the person failed to take

corrective action under a corrective action plan approved by the

commission within the time prescribed by the commission and an

emissions event recurs because of that failure.

(i) In the event the owner or operator of a facility fails to

report an emissions event, the commission shall initiate

enforcement for such failure to report and for the underlying

emissions event itself. This subsection does not apply where an

owner or operator reports an emissions event and the report was

incomplete, inaccurate, or untimely unless the owner or operator

knowingly or intentionally falsified the information in the

report.

(j) The commission shall account for and consider chronic

excessive emissions events and emissions events for which the

commission has initiated enforcement in the manner set forth by

the commission in its review of an entity's compliance history.

Added by Acts 2001, 77th Leg., ch. 965, Sec. 5.01(a), eff. Sept.

1, 2001.

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.

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, Sec. 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. 382.0275. COMMISSION ACTION RELATING TO RESIDENTIAL WATER

HEATERS. (a) In this section, "residential water heater" means

a water heater that:

(1) is designed primarily for residential use; and

(2) has a maximum rated capacity of 75,000 British thermal units

per hour (Btu/hr) or less.

(b) Repealed by Acts 2007, 80th Leg., R.S., Ch. 49, Sec. 2, eff.

May 8, 2007.

(d) The commission may not adopt or enforce a rule,

determination, or order that relates to emissions of residential

water heaters that is below 40 nanograms of NOx per joule unless

a lower standard is established by a federal statute or rule.

Any commission rule, determination, or order existing on or

before the effective date of this subsection related to emission

specifications for residential water heaters that is more

stringent than the 40 nanograms of NOx per joule standard is

hereby repealed.

Added by Acts 2005, 79th Leg., Ch.

59, Sec. 1, eff. September 1, 2005.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

49, Sec. 1, eff. May 8, 2007.

Acts 2007, 80th Leg., R.S., Ch.

49, Sec. 2, eff. May 8, 2007.

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.

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.

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.

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; 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.

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. 382.040. 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;

(2) to operate an existing facility affected by Section

382.0518(g); or

(3) 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 for numerous similar sources subject to

Section 382.054;

(3) a standard permit for similar facilities;

(4) a permit by rule for types of facilities that will not

significantly contribute air contaminants to the atmosphere;

(5) a single federal operating permit or preconstruction permit

for multiple federal sources or facilities located at the same

site;

(6) a multiple plant permit for existing facilities at multiple

locations subject to Section 382.0518 or 382.0519;

(7) an existing facility permit or existing facility flexible

permit under Section 382.05183;

(8) a small business stationary source permit under Section

382.05184;

(9) an electric generating facility permit under Section

382.05185 of this code and Section 39.264, Utilities Code;

(10) a pipeline facilities permit under Section 382.05186; or

(11) other permits as necessary.

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; 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; Acts 1999, 76th Leg., ch. 406, Sec. 2, eff. Aug. 30, 1999;

Acts 2001, 77th Leg., ch. 965, Sec. 5.02, eff. Sept. 1, 2001.

Sec. 382.05101. DE MINIMIS AIR CONTAMINANTS. The commission may

develop by rule the criteria to establish a de minimis level of

air contaminants for facilities or groups of facilities below

which a permit under Section 382.0518 or 382.0519, a standard

permit under Section 382.05195 or 382.05198, or a permit by rule

under Section 382.05196 is not required.

Added by Acts 1999, 76th Leg., ch. 406, Sec. 3, eff. Aug. 30,

1999. Amended by Acts 2003, 78th Leg., ch. 361, Sec. 1, eff.

Sept. 1, 2003.

Sec. 382.0511. PERMIT CONSOLIDATION AND AMENDMENT. (a) The

commission may consolidate into a single permit any permits,

special permits, standard permits, permits by rule, or exemptions

for a facility or federal source.

(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.

proceed before the owner or operator obtains a federal operating

permit or revisions to a federal operating permit if:

(1) the changes are de minimis under Section 382.05101; or

(2) the owner or operator:

(A) has obtained a preconstruction permit or permit amendment

required by Section 382.0518; or

(B) is operating under:

(i) a standard permit under Section 382.05195 or 382.05198;

(ii) a permit by rule under Section 382.05196; or

(iii) 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; Acts 1999, 76th Leg., ch. 406, Sec. 4, eff.

Aug. 30, 1999; Acts 2003, 78th Leg., ch. 361, Sec. 2, eff. Sept.

1, 2003.

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 commission 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).

application of otherwise applicable state or federal

requirements, nor shall this section be construed to limit the

commission'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; Acts 1999, 76th Leg., ch. 62, Sec.

11.04(b), eff. Sept. 1, 1999.

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, STATE REPRESENTATIVE,

AND CERTAIN LOCAL OFFICIALS. (a) On receiving an application

for a construction permit or an amendment to 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.

(b) In addition to the notice required by Subsection (a), for an

application that relates to an existing or proposed concrete

batch plant, on receiving an application for a construction

permit, an amendment to a construction permit, an operating

permit, or an authorization to use a standard permit, the

commission shall send notice of the application:

(1) to the county judge of the county in which the facility is

or will be located; and

(2) if the facility is or will be located in a municipality or

the extraterritorial jurisdiction of a municipality, to the

presiding officer of the municipality's governing body.

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; Acts 2001,

77th Leg., ch. 1327, Sec. 1, eff. Sept. 1, 2001.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

262, Sec. 5.01, eff. September 1, 2007.

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 or

permit amendment from the commission.

(b) The commission shall grant within a reasonable time a permit

or permit amendment 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(k), the commission finds:

(1) the proposed facility for which a permit, permit amendment,

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.

permit, the commission may consider the applicant's compliance

history in accordance with the method for evaluating compliance

history developed by the commission under Section 5.754, Water

Code. In considering an applicant's compliance history under this

subsection, the commission shall consider as evidence of

compliance information regarding the applicant's implementation

of an environmental management system at the facility for which

the permit, permit amendment, or permit renewal is sought. In

this subsection, "environmental management system" has the

meaning assigned by Section 5.127, Water Code.

(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, permit amendment, or 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, permit amendment, or

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, permit amendment, or special

permit. If the person fails or refuses to alter the plans and

specifications, the commission may not grant the permit, permit

amendment, 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) Section 382.056 does not apply to an applicant for a permit

amendment under this section if the total emissions increase from

all facilities authorized under the amended permit will meet the

de minimis criteria defined by commission rule and will not

change in character. For a facility affected by Section 382.020,

Section 382.056 does not apply to an applicant for a permit

amendment under this section if the total emissions increase from

all facilities authorized under the permit amendment is not

significant and will not change in character. In this subsection,

a finding that a total emissions increase is not significant must

be made as provided under Section 382.05196 for a finding under

that section.

(i) In considering a permit amendment under this section the

commission shall 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.

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; Acts 2001, 77th Leg., ch. 965, Sec. 16.13,

eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 1161, Sec. 6, eff.

Sept. 1, 2001; Acts 2001, 77th Leg., ch. 1327, Sec. 2, eff. Sept.

1, 2001.

Sec. 382.05181. PERMIT REQUIRED. (a) Any facility affected by

Section 382.0518(g) that does not have an application pending for

a permit under this chapter, other than a permit required under

Section 382.054, and that has not submitted a notice of shutdown

under Section 382.05182, may not emit air contaminants on or

after:

(1) September 1, 2003, if the facility is located in the East

Texas region; or

(2) September 1, 2004, if the facility is located in the West

Texas region.

(b) Any facility affected by Section 382.0518(g) that has

obtained a permit under this chapter, other than a permit under

Section 382.054, and has not fully complied with the conditions

of the permit pertaining to the installation of emissions

controls or reductions in emissions of air contaminants, may not

emit air contaminants on or after:

(1) March 1, 2007, if the facility is located in the East Texas

region; or

(2) March 1, 2008, if the facility is located in the West Texas

region.

(1) contains all counties traversed by or east of Interstate

Highway 35 north of San Antonio or traversed by or east of

Interstate Highway 37 south of San Antonio; and

(2) includes Bexar, Bosque, Coryell, Hood, Parker, Somervell,

and Wise counties.

(d) The West Texas region includes all counties not contained in

the East Texas region.

(e) The commission promptly shall review each application for a

permit under this chapter for a facility affected by Section

382.0518(g). If the commission finds that necessary information

is omitted from the application, that the application contains

incorrect information, or that more information is necessary to

complete the processing of the application, the commission shall

issue a notice of deficiency and order the information to be

provided not later than the 60th day after the date the notice is

issued. If the information is not provided to the commission on

or before that date, the commission shall dismiss the

application.

(f) The commission shall take final action on an application for

a permit under this chapter for a facility affected by Section

382.0518(g) before the first anniversary of the date on which the

commission receives an administratively complete application.

(g) An owner or operator of a facility affected by Section

382.0518(g) that does not obtain a permit within the 12-month

period may petition the commission for an extension of the time

period for compliance specified by Subsection (b). The commission

may grant not more than one extension for a facility, for an

additional period not to exceed 12 months, if the commission

finds good cause for the extension.

(h) A permit application under this chapter for a facility

affected by Section 382.0518(g) is subject to the notice and

hearing requirements as provided by Section 382.05191.

(i) This section does not apply to a facility eligible for a

permit under Section 382.05184.

Added by Acts 2001, 77th Leg., ch. 965, Sec. 5.03, eff. Sept. 1,

2001.

Sec. 382.05182. NOTICE OF SHUTDOWN. (a) Any notice submitted

in compliance with this section must be filed with the commission

by the dates in Section 382.05181(a).

(b) A notice under this section shall include:

(1) the date the facility intends to cease operating;

(2) an inventory of the type and amount of emissions that will

be eliminated when the facility ceases to operate; and

(3) any other necessary and relevant information the commission

by rule deems appropriate.

Added by Acts 2001, 77th Leg., ch. 965, Sec. 5.03, eff. Sept. 1,

2001.

Sec. 382.05183. EXISTING FACILITY PERMIT. (a) The owner or

operator of a facility affected by Section 382.0518(g) may apply

for a permit to operate the facility under this section.

(b) The commission shall grant a permit under this section if,

from the information available to the commission, the commission

finds that the facility will use a control method at least as

beneficial as that described by Section 382.003(9)(E)(ii),

considering the age and the remaining useful life of the

facility.

permit for some or all of the facilities at a site affected by

Section 382.0518(g) and facilities permitted under Section

382.0519 in order to implement the requirements of this section.

Permits issued under this subsection shall follow the same permit

issuance, modification, and renewal procedures as existing

facility permits.

(d) If the commission finds that the emissions from the facility

will contravene the standards under Subsection (b) or the intent

of this chapter, including protection of the public's health and

physical property, the commission may not grant the permit under

this section.

(e) A person planning the modification of a facility previously

permitted under this section must comply with Section 382.0518

before modifying.

(f) The commission may adopt rules as necessary to implement and

administer this section.

Added by Acts 2001, 77th Leg., ch. 965, Sec. 5.03, eff. Sept. 1,

2001.

Sec. 382.05184. SMALL BUSINESS STATIONARY SOURCE PERMIT. (a)

Facilities affected by Section 382.0518(g) that are located at a

small business stationary source, as defined by Section 5.135,

Water Code, and are not required by commission rule to report to

the commission under Section 382.014 may apply for a permit under

this section before September 1, 2004.

(b) Facilities affected by Section 382.0518(g) that are located

at a small business stationary source that does not have an

application pending for a permit under this chapter, other than a

permit required under Section 382.054, and that has not submitted

a notice of shutdown under Section 382.05182, may not emit air

contaminants on or after March 1, 2008.

from the information available to the commission, the commission

finds that there is 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.

(d) If the commission finds that the emissions from the facility

will not comply with Subsection (c), the commission may not grant

the permit under this section.

(e) A person planning the modification of a facility previously

permitted under this section must comply with Section 382.0518

before modifying.

(f) A permit application under this section is not subject to

notice and hearing requirements and is not subject to Chapter

2001, Government Code.

(g) The commission may adopt rules as necessary to implement and

administer this section.

Added by Acts 2001, 77th Leg., ch. 965, Sec. 5.03, eff. Sept. 1,

2001.

Amended by:

Acts 2005, 79th Leg., Ch.

728, Sec. 9.0035(b), eff. September 1, 2005.

Sec. 382.05185. ELECTRIC GENERATING FACILITY PERMIT. (a) An

electric generating facility is considered permitted under this

section with respect to all air contaminants if the facility is:

(1) a natural-gas-fired electric generating facility that has

applied for or obtained a permit under Section 39.264, Utilities

Code; or

(2) an electric generating facility exempted from permitting

under Section 39.264(d), Utilities Code.

(b) A coal-fired electric generating facility that is required

to obtain a permit under Section 39.264, Utilities Code:

(1) shall be considered permitted under this section with

respect to nitrogen oxides, sulphur dioxide, and, as provided by

commission rules, for opacity if the facility has applied for or

obtained a permit under Section 39.264, Utilities Code; and

(2) is not considered permitted for criteria pollutants not

described by Subsection (b)(1).

to Subsection (b) for criteria pollutants not covered by

Subsection (b)(1) if the commission finds that the emissions from

the facility will not contravene the intent of this chapter,

including protection of the public's health and physical

property. Upon request by the applicant, the commission shall

include a permit application under this subsection with the

applicant's pending permit application under Section 39.264,

Utilities Code.

(d) The owner or operator of an electric generating facility

with a permit or an application pending under Section 39.264,

Utilities Code, may apply for a permit under this section before

September 1, 2002, for a facility located at the same site if the

facility not permitted or without a pending application under

Section 39.264, Utilities Code, is:

(1) a generator that does not generate electric energy for

compensation and is used not more than 10 percent of the normal

annual operating schedule; or

(2) an auxiliary fossil-fuel-fired combustion facility that does

not generate electric energy and does not emit more than 100 tons

of any air contaminant annually.

(e) Emissions from facilities permitted under Subsection (d)

shall be included in the emission allowance trading program

established under Section 39.264, Utilities Code. The commission

may not issue new allowances based on a permit issued under this

section.

(f) A person planning the modification of a facility previously

permitted under this section must comply with Section 382.0518

before modifying.

(g) The commission may adopt rules as necessary to implement and

administer this section.

(h) A permit application under this section is subject to notice

and hearing requirements as provided by Section 382.05191.

(i) For the purposes of this section, a natural-gas-fired

electric generating facility includes a facility that was

designed to burn either natural gas or fuel oil of a grade

approved by commission rule. The commission shall adopt rules

regarding acceptable fuel oil grades.

Added by Acts 2001, 77th Leg., ch. 965, Sec. 5.03, eff. Sept. 1,

2001.

Sec. 382.05186. PIPELINE FACILITIES PERMITS. (a) This section

applies only to reciprocating internal combustion engines that

are part of processing, treating, compression, or pumping

facilities affected by Section 382.0518(g) connected to or part

of a gathering or transmission pipeline. Pipeline facilities

affected by Section 382.0518(g) other than reciprocating internal

combustion engines may apply for an existing facility permit or

other applicable permit under this chapter other than a pipeline

facilities permit.

(b) The commission by rule shall:

(1) provide for the issuance of a single permit for all

reciprocating internal combustion facilities connected to or part

of a gathering or transmission pipeline;

(2) provide for a means for mandatory emissions reductions for

facilities permitted under this section to be achieved:

(A) at one source; or

(B) by averaging reductions among more than one reciprocating

internal combustion facility connected to or part of a gathering

or transmission pipeline; and

(3) allow an owner or operator to apply for separate permits

under this section for discrete and separate reciprocating

internal combustion facilities connected to or part of a

gathering or transmission pipeline.

to be achieved by averaging reductions among more than one source

connected to or part of a gathering or transmission pipeline, the

average may not include emissions reductions achieved in order to

comply with other state or federal law.

(d) If the mandatory emissions reductions under this section are

to be achieved at one source, the reduction may include emissions

reductions achieved since January 1, 2001, in order to comply

with other state or federal law.

(e) The commission shall grant a permit under this section for a

facility or facilities located in the East Texas region if, from

information available to the commission, the commission finds

that the conditions of the permit will require a 50 percent

reduction of the hourly emissions rate of nitrogen oxides,

expressed in terms of grams per brake horsepower-hour. The

commission may also require a 50 percent reduction of the hourly

emissions rate of volatile organic compounds, expressed in terms

of grams per brake horsepower-hour.

(f) The commission shall grant a permit under this section for

facilities located in the West Texas region if, from information

available to the commission, the commission finds that the

conditions of the permit will require up to a 20 percent

reduction of the hourly emissions rate of nitrogen oxides,

expressed in terms of grams per brake horsepower-hour. The

commission may also require up to a 20 percent reduction of the

hourly emissions rate of volatile organic compounds, expressed in

terms of grams per brake horsepower-hour.

(g) A permit application under this section is subject to notice

and hearing requirements as provided by Section 382.05191.

(h) A person planning the modification of a facility previously

permitted under this section must comply with Section 382.0518

before modifying.

(i) The commission may adopt rules as necessary to implement and

administer this section.

(j) A reciprocating internal combustion engine that is subject

to this section and to a mass emissions cap as established by

commission rule is considered permitted under this section with

respect to all air contaminants if the facility is:

(1) located in an area designated nonattainment for an ozone

national ambient air quality standard; and

(2) achieving compliance with all state and federal requirements

designated for that area.

Added by Acts 2001, 77th Leg., ch. 965, Sec. 5.03, eff. Sept. 1,

2001. Amended by Acts 2003, 78th Leg., ch. 1023, Sec. 3, eff.

June 20, 2003.

Sec. 382.051866. EMISSIONS REDUCTIONS INCENTIVES ACCOUNT. (a)

In this section, "affiliate" means a person that directly or

indirectly controls, is controlled by, or is under common control

with another person.

(b) The comptroller of public accounts shall establish an

account within the clean air account to be known as the emissions

reductions incentives account.

money from:

(1) gifts, grants, or donations to the account for a designated

or general use;

(2) money from any other source the legislature designates; and

(3) the interest earned on money in the emissions reductions

incentives account.

(d) Money in the emissions reductions incentives account may be

appropriated only to pay for emissions reduction project

incentives under a program developed under Section 382.051867 and

administrative expenses associated with providing the incentives

or the incentive program established under that section.

(e) Repealed by Acts 2007, 80th Leg., R.S., Ch. 1346, Sec. 3,

eff. June 15, 2007.

(f) The emissions reductions incentives account is exempt from

the application of Section 403.095, Government Code.

Added by Acts 2003, 78th Leg., ch. 1023, Sec. 2, eff. June 20,

2003.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

1346, Sec. 1, eff. June 15, 2007.

Acts 2007, 80th Leg., R.S., Ch.

1346, Sec. 3, eff. June 15, 2007.

Sec. 382.0519. VOLUNTARY EMISSIONS REDUCTION PERMIT. (a)

Before September 1, 2001, the owner or operator of an existing,

unpermitted facility not subject to the requirement to obtain a

permit under Section 382.0518(g) may apply for a permit to

operate that facility under this section.

(b) The commission shall grant within a reasonable time a permit

under this section if, from the information available to the

commission, including information presented at any public hearing

or through written comment:

(1) the commission finds that the facility will use an air

pollution control method at least as beneficial as that described

in Section 382.003(9)(E)(ii), considering the age and remaining

useful life of the facility, except as provided by Subdivision

(2); or

(2) for a facility located in a near-nonattainment or

nonattainment area for a national ambient air quality standard,

the commission finds that the facility will use the more

stringent of:

(A) a control method at least as beneficial as that described in

Section 382.003(9)(E)(ii), considering the age and remaining

useful life of the facility; or

(B) a control technology that the commission finds is

demonstrated to be generally achievable for facilities in that

area of the same type that are permitted under this section,

considering the age and remaining useful life of the facility.

will contravene the standards under Subsection (b) or the intent

of this chapter, including protection of the public's health and

physical property, the commission may not grant the permit under

this section.

(d) A person planning the modification of a facility previously

permitted under this section must comply with Section 382.0518

before work is begun on the construction of the modification.

(e) A permit issued by the commission under this section may

defer the implementation of the requirement of reductions in the

emissions of certain air contaminants only if the applicant will

make substantial emissions reductions in other specific air

contaminants. The deferral shall be based on a prioritization of

air contaminants by the commission as necessary to meet local,

regional, and statewide air quality needs.

(f) The commission shall give priority to the processing of

applications for the issuance, amendment, or renewal of a permit

for those facilities authorized under Section 382.0518(g) that

are located less than two miles from the outer perimeter of a

school, child day-care facility, hospital, or nursing home.

Added by Acts 1999, 76th Leg., ch. 406, Sec. 5, eff. Aug. 30,

1999.

Sec. 382.05191. EMISSIONS REDUCTION PERMITS: NOTICE AND HEARING.

(a) An applicant for a permit under Section 382.05183,

382.05185(c) or (d), 382.05186, or 382.0519 shall publish notice

of intent to obtain the permit in accordance with Section

382.056.

(b) The commission may authorize an applicant for a permit for a

facility that constitutes or is part of a small business

stationary source as defined in Section 5.135, Water Code, to

provide notice using an alternative means if the commission finds

that the proposed method will result in equal or better

communication with the public, considering the effectiveness of

the notice in reaching potentially affected persons, cost, and

consistency with federal requirements.

hearing and the submission of public comment and send notice of a

decision on an application for a permit under Section 382.05183,

382.05185(c) or (d), 382.05186, or 382.0519 in the same manner as

provided by Sections 382.0561 and 382.0562.

(d) A person affected by a decision of the commission to issue

or deny a permit under Section 382.05183, 382.05185(c) or (d), or

382.05186 may move for rehearing and is entitled to judicial

review under Section 382.032.

Added by Acts 1999, 76th Leg., ch. 406, Sec. 5, eff. Aug. 30,

1999. Amended by Acts 2001, 77th Leg., ch. 965, Sec. 5.04, eff.

Sept. 1, 2001.

Amended by:

Acts 2005, 79th Leg., Ch.

728, Sec. 9.0035(c), eff. September 1, 2005.

Sec. 382.05192. REVIEW AND RENEWAL OF EMISSIONS REDUCTION AND

MULTIPLE PLANT PERMITS. Review and renewal of a permit issued

under Section 382.05183, 382.05185(c) or (d), 382.05186,

382.0519, or 382.05194 shall be conducted in accordance with

Section 382.055.

Added by Acts 1999, 76th Leg., ch. 406, Sec. 5, eff. Aug. 30,

1999. Amended by Acts 2001, 77th Leg., ch. 965, Sec. 5.05, eff.

Sept. 1, 2001.

Sec. 382.05193. EMISSIONS PERMITS THROUGH EMISSIONS REDUCTION.

(a) The commission may issue a permit under Section 382.0519 for

a facility:

(1) that makes a good faith effort to make equipment

improvements and emissions reductions necessary to meet the

requirements of that section;

(2) that, in spite of the effort, cannot reduce the facility's

emissions to the degree necessary for the issuance of the permit;

and

(3) the owner or operator of which acquires a sufficient number

of emissions reduction credits to offset the facility's excessive

emissions under the program established under Subsection (b).

(b) The commission by rule shall establish a program to grant

emissions reduction credits to a facility if the owner or

operator conducts an emissions reduction project to offset the

facility's excessive emissions. To be eligible for a credit to

offset a facility's emissions, the emissions reduction project

must reduce emissions in the airshed, as defined by commission

rule, in which the facility is located.

reduction project must reduce net emissions from one or more

sources in this state in an amount and type sufficient to prevent

air pollution to a degree comparable to the amount of the

reduction in the facility's emissions that would be necessary to

meet the permit requirement. Qualifying emissions reduction

projects must include:

(1) generation of electric energy by a low-emission method,

including:

(A) wind power;

(B) biomass gasification power; and

(2) the purchase and destruction of high-emission automobiles or

other mobile sources;

(3) the reduction of emissions from a permitted facility that

emits air contaminants to a level significantly below the levels

necessary to comply with the facility's permit;

(4) a carpooling or alternative transportation program for the

owner's or operator's employees;

(5) a telecommuting program for the owner's or operator's

employees; and

(6) conversion of a motor vehicle fleet operated by the owner or

operator to a low-sulphur fuel or an alternative fuel approved by

the commission.

(d) A permit issued under Section 382.0519 for a facility

participating in the program established under this section must

be conditioned on the successful and timely completion of the

project or projects for which the facility owner or operator

acquires the credits.

(e) To renew the permit of a facility permitted under Section

382.0519 with credits acquired under the program established

under this section, the commission shall require the owner or

operator of the facility to have:

(1) made equipment improvements and emissions reductions

necessary to meet the permit requirements under that section for

a new permit; or

(2) acquired additional credits under the program as necessary

to meet the permit requirements under that section for a new

permit.

(f) Emissions reduction credits acquired under the program

established under this section are not transferrable.

Added by Acts 1999, 76th Leg., ch. 406, Sec. 5, eff. Aug. 30,

1999.

Sec. 382.05194. MULTIPLE PLANT PERMIT. (a) The commission may

issue a multiple plant permit for multiple plant sites that are

owned or operated by the same person or persons under common

control if the commission finds that:

(1) the aggregate rate of emission of air contaminants to be

authorized under the permit does not exceed the total of:

(A) for previously permitted facilities, the rates authorized in

the existing permits; and

(B) for existing unpermitted facilities not subject to the

requirement to obtain a preconstruction authorization under

Section 382.0518(g) or for facilities authorized under Section

382.0519, the rates that would be authorized under Section

382.0519; and

(2) there is no indication that the emissions from the

facilities will contravene the intent of this chapter, including

protection of the public's health and physical property.

(b) A permit issued under this section may not authorize

emissions from any of the facilities authorized under the permit

that exceed the facility's highest historic annual rate or the

levels authorized in the facility's most recent permit. In the

absence of records extending back to the original construction of

the facility, best engineering judgment shall be used to

demonstrate the facility's highest historic annual rate to the

commission.

facility permitted under this section may not be removed or

disabled unless the action is undertaken to maintain or upgrade

the control equipment or to otherwise reduce the impact of

emissions authorized by the commission.

(d) The commission by rule shall establish the procedures for

application and approval for the use of a multiple plant permit.

(e) For a multiple plant permit that applies only to existing

facilities for which an application is filed before September 1,

2001, the issuance, amendment, or revocation by the commission of

the permit is not subject to Chapter 2001, Government Code.

(f) The commission may adopt rules as necessary to implement and

administer this section and may delegate to the executive

director under Section 382.061 the authority to issue, amend, or

revoke a multiple plant permit.

Added by Acts 1999, 76th Leg., ch. 406, Sec. 5, eff. Aug. 30,

1999. Amended by Acts 2001, 77th Leg., ch. 935, Sec. 1, eff. June

14, 2001.

Sec. 382.05195. STANDARD PERMIT. (a) The commission may issue

a standard permit for new or existing similar facilities if the

commission finds that:

(1) the standard permit is enforceable;

(2) the commission can adequately monitor compliance with the

terms of the standard permit; and

(3) for permit applications for facilities subject to Sections

382.0518(a)-(d) filed before September 1, 2001, the facilities

will use control technology at least as effective as that

described in Section 382.0518(b). For permit applications filed

after August 31, 2001, all facilities permitted under this

section will use control technology at least as effective as that

described in Section 382.0518(b).

(b) The commission shall publish notice of a proposed standard

permit in the Texas Register and in one or more statewide or

regional newspapers designated by the commission by rule that

will, in the commission's judgment, provide reasonable notice

throughout the state. If the standard permit will be effective

for only part of the state, the notice shall be published in a

newspaper of general circulation in the area to be affected. The

commission by rule may require additional notice to be given. The

notice must include an invitation for written comments by the

public to the commission regarding the proposed standard permit

and must be published not later than the 30th day before the date

the commission issues the standard permit.

additional opportunity for public comment. The commission shall

give notice of a public meeting under this subsection as part of

the notice described in Subsection (b) not later than the 30th

day before the date of the meeting.

(d) If the commission receives public comment related to the

issuance of a standard permit, the commission shall issue a

written response to the comments at the same time the commission

issues or denies the permit. The response must be made available

to the public, and the commission shall mail the response to each

person who made a comment.

(e) The commission by rule shall establish procedures for the

amendment of a standard permit and for an application for, the

issuance of, the renewal of, and the revocation of an

authorization to use a standard permit.

(f) A facility authorized to emit air contaminants under a

standard permit shall comply with an amendment to the standard

permit beginning on the date the facility's authorization to use

the standard permit is renewed or the date the commission

otherwise provides. Before the date the facility is required to

comply with the amendment, the standard permit, as it read before

the amendment, applies to the facility.

(g) The adoption or amendment of a standard permit or the

issuance, renewal, or revocation of an authorization to use a

standard permit is not subject to Chapter 2001, Government Code.

(h) The commission may adopt rules as necessary to implement and

administer this section.

(i) The commission may delegate to the executive director the

authority to issue, amend, renew, or revoke an authorization to

use a standard permit.

(j) If a standard permit for a facility requires a distance,

setback, or buffer from other property or structures as a

condition of the permit, the determination of whether the

distance, setback, or buffer is satisfied shall be made on the

basis of conditions existing at the earlier of:

(1) the date new construction, expansion, or modification of a

facility begins; or

(2) the date any application or notice of intent is first filed

with the commission to obtain approval for the construction or

operation of the facility.

Added by Acts 1999, 76th Leg., ch. 406, Sec. 5, eff. Aug. 30,

1999.

Amended by:

Acts 2005, 79th Leg., Ch.

422, Sec. 2, eff. September 1, 2005.

Sec. 382.05196. PERMITS BY RULE. (a) Consistent with Section

382.051, the commission may adopt permits by rule for certain

types of facilities if it is found on investigation that the

types of facilities will not make a significant contribution of

air contaminants to the atmosphere. The commission may not adopt

a permit by rule authorizing any facility defined as "major"

under any applicable preconstruction permitting requirements of

the federal Clean Air Act (42 U.S.C. Section 7401 et seq.) 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 by rule shall specifically define the terms

and conditions for a permit by rule under this section.

Added by Acts 1999, 76th Leg., ch. 406, Sec. 5, eff. Aug. 30,

1999.

Sec. 382.05197. MULTIPLE PLANT PERMIT: NOTICE AND HEARING. (a)

An applicant for a permit under Section 382.05194 shall publish

notice of intent to obtain the permit in accordance with Section

382.056, except that the notice of a proposed multiple plant

permit for existing facilities shall be published in one or more

statewide or regional newspapers that provide reasonable notice

throughout the state. If the multiple plant permit for existing

facilities will be effective for only part of the state, the

notice shall be published in a newspaper of general circulation

in the area to be affected. The commission by rule may require

that additional notice be given.

(b) The commission may authorize an applicant for a permit for

an existing facility that constitutes or is part of a small

business stationary source as defined in Section 5.135, Water

Code, to provide notice using an alternative means if the

commission finds that the proposed method will result in equal or

better communication with the public, considering the

effectiveness of the notice in reaching potentially affected

persons, the cost, and the consistency with federal requirements.

hearing and the submission of public comment and send notice of a

decision on an application for a permit under Section 382.05194

in the same manner as provided by Sections 382.0561 and 382.0562.

(d) A person affected by a decision of the commission to issue

or deny a multiple plant permit may move for rehearing and is

entitled to judicial review under Section 382.032.

Added by Acts 2001, 77th Leg., ch. 935, Sec. 2, eff. June 14,

2001.

Amended by:

Acts 2005, 79th Leg., Ch.

728, Sec. 9.0035(d), eff. September 1, 2005.

Sec. 382.05198. STANDARD PERMIT FOR CERTAIN CONCRETE PLANTS.

(a) The commission shall issue a standard permit for a permanent

concrete plant that performs wet batching, dry batching, or

central mixing and that meets the following requirements:

(1) production records must be maintained on site while the

plant is in operation until the second anniversary of the end of

the period to which they relate;

(2) each cement or fly ash storage silo and weigh hopper must be

equipped with a fabric or cartridge filter or vented to a fabric

or cartridge filter system;

(3) each fabric or cartridge filter, fabric or cartridge filter

system, and suction shroud must be maintained and operated

properly with no tears or leaks;

(4) excluding the suction shroud filter system, each filter

system must be designed to meet a standard of at least 0.01

outlet grain loading as measured in grains per dry standard cubic

foot;

(5) each filter system and each mixer loading and batch truck

loading emissions control device must meet a performance standard

of no visible emissions exceeding 30 seconds in a five-minute

period as determined using United States Environmental Protection

Agency Test Method 22 as that method existed on September 1,

2003;

(6) if a cement or fly ash silo is filled during nondaylight

hours, the silo filter system exhaust must be sufficiently

illuminated to enable a determination of compliance with the

performance standard described by Subdivision (5);

(7) the conveying system for the transfer of cement or fly ash

to and from each storage silo must be totally enclosed, operate

properly, and be maintained without any tears or leaks;

(8) except during cement or fly ash tanker connection or

disconnection, each conveying system for the transfer of cement

or fly ash must meet the performance standard described by

Subdivision (5);

(9) a warning device must be installed on each bulk storage silo

to alert the operator in sufficient time for the operator to stop

loading operations before the silo is filled to a level that may

adversely affect the pollution abatement equipment;

(10) if filling a silo results in failure of the pollution

abatement system or failure to meet the performance standard

described by Subdivision (5), the failure must be documented and

reported to the commission;

(11) each road, parking lot, or other area at the plant site

that is used by vehicles must be paved with a cohesive hard

surface that is properly maintained, cleaned, and watered so as

to minimize dust emissions;

(12) each stockpile must be sprinkled with water or

dust-suppressant chemicals or covered so as to minimize dust

emissions;

(13) material used in the batch that is spilled must be

immediately cleaned up and contained or dampened so as to

minimize dust emissions;

(14) production of concrete at the plant must not exceed 300

cubic yards per hour;

(15) a suction shroud or other pickup device must be installed

at the batch drop point or, in the case of a central mix plant,

at the drum feed and vented to a fabric or cartridge filter

system with a minimum capacity of 5,000 cubic feet per minute of

air;

(16) the bag filter and capture system must be properly designed

to accommodate the increased flow from the suction shroud and

achieve a control efficiency of at least 99.5 percent;

(17) the suction shroud baghouse exhaust must be located more

than 100 feet from any property line;

(18) stationary equipment, stockpiles, and vehicles used at the

plant, except for incidental traffic and vehicles as they enter

and exit the site, must be located or operated more than 100 feet

from any property line; and

(19) the central baghouse must be located at least 440 yards

from any building used as a single or multifamily residence,

school, or place of worship at the time the application to use

the permit is filed with the commission if the plant is located

in an area that is not subject to municipal zoning regulation.

(b) Notwithstanding Subsection (a)(18), the commission shall

issue a standard permit for a permanent concrete plant that

performs wet batching, dry batching, or central mixing and does

not meet the requirements of that subdivision if the plant meets

the other requirements of Subsection (a) and:

(1) each road, parking lot, and other traffic area located

within the distance of a property line provided by Subsection

(a)(18) is bordered by dust-suppressing fencing or another

barrier at least 12 feet high; and

(2) each stockpile located within the applicable distance of a

property line is contained within a three-walled bunker that

extends at least two feet above the top of the stockpile.

Added by Acts 2003, 78th Leg., ch. 361, Sec. 3, eff. Sept. 1,

2003.

Sec. 382.05199. STANDARD PERMIT FOR CERTAIN CONCRETE BATCH

PLANTS: NOTICE AND HEARING. (a) A person may not begin

construction of a permanent concrete plant that performs wet

batching, dry batching, or central mixing under a standard permit

issued under Section 382.05198 unless the commission authorizes

the person to use the permit as provided by this section. The

notice and hearing requirements of Subsections (b)-(g) apply only

to an applicant for authorization to use a standard permit issued

under Section 382.05198. An applicant for a permit for a concrete

plant that does not meet the requirements of a standard permit

issued under Section 382.05198 must comply with:

(1) Section 382.058 to obtain authorization to use a standard

permit issued under Section 382.05195 or a permit by rule adopted

under Section 382. 05196; or

(2) Section 382.056 to obtain a permit issued under Section

382.0518.

(b) An applicant for an authorization to use a standard permit

under Section 382.05198 must publish notice under this section

not later than the earlier of:

(1) the 30th day after the date the applicant receives written

notice from the executive director that the application is

technically complete; or

(2) the 75th day after the date the executive director receives

the application.

newspaper of general circulation in the municipality in which the

plant is proposed to be located or in the municipality nearest to

the proposed location of the plant. If the elementary or middle

school nearest to the proposed plant provides a bilingual

education program as required by Subchapter B, Chapter 29,

Education Code, the applicant must also publish the notice at

least once in an additional publication of general circulation in

the municipality or county in which the plant is 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.

(d) The notice must include:

(1) a brief description of the proposed location and nature of

the proposed plant;

(2) a description, including a telephone number, of the manner

in which the executive director may be contacted for further

information;

(3) a description, including a telephone number, of the manner

in which the applicant may be contacted for further information;

(4) the location and hours of operation of the commission's

regional office at which a copy of the application is available

for review and copying; and

(5) a brief description of the public comment process, including

the time and location of the public hearing, and the mailing

address and deadline for filing written comments.

(e) The public comment period begins on the first date notice is

published under Subsection (b) and extends to the close of the

public hearing.

(f) Section 382.056 of this code and Chapter 2001, Government

Code, do not apply to a public hearing held under this section. A

public hearing held under this section is not an evidentiary

proceeding. Any person may submit an oral or written statement

concerning the application at the public hearing. The applicant

may set reasonable limits on the time allowed for oral statements

at the public hearing.

(g) The applicant, in cooperation with the executive director,

must hold the public hearing not less than 30 days and not more

than 45 days after the first date notice is published under

Subsection (b). The public hearing must be held in the county in

which the plant is proposed to be located.

(h) Not later than the 35th day after the date the public

hearing is held, the executive director shall approve or deny the

application for authorization to use the standard permit. The

executive director shall base the decision on whether the

application meets the requirements of Section 382.05198. The

executive director shall consider all comments received during

the public comment period and at the public hearing in

determining whether to approve the application. If the executive

director denies the application, the executive director shall

state the reasons for the denial and any modifications to the

application that are necessary for the proposed plant to qualify

for the authorization.

(i) The executive director shall issue a written response to any

public comments received related to the issuance of an

authorization to use the standard permit at the same time as or

as soon as practicable after the executive director grants or

denies the application. Issuance of the response after the

granting or denial of the application does not affect the

validity of the executive director's decision to grant or deny

the application. The executive director shall:

(1) mail the response to each person who filed a comment; and

(2) make the response available to the public.

Added by Acts 2003, 78th Leg., ch. 361, Sec. 3, eff. Sept. 1,

2003.

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;

(3) a lead smelting plant that, when the plant began operation,

was located more than 3,000 feet from the nearest residence.

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; 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;

(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.

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;

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.

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.

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:

(A) every 10 years after the date of issuance; or

(B) on the filing of an application for an amendment to the

permit, if:

(i) the applicant is subject to Section 382.056;

(ii) the application is filed with the commission not more than

three years before the date the permit is scheduled to expire;

and

(iii) the applicant does not object to having the permit

subjected to review at that time; 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.

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) the performance of the owner or operator of the facility

according to the method developed by the commission under Section

5.754, Water Code; 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; 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;

Acts 2001, 77th Leg., ch. 965, Sec. 16.14, eff. Sept. 1, 2001.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

168, Sec. 1, eff. May 22, 2007.

Sec. 382.056. NOTICE OF INTENT TO OBTAIN PERMIT OR PERMIT

REVIEW; HEARING. (a) Except as provided by Section 382.0518(h),

an applicant for a permit or permit amendment under Section

382.0518 or a permit renewal review under Section 382.055 shall

publish notice of intent to obtain the permit, permit amendment,

or permit review not later than the 30th day after the date the

commission determines the application to be administratively

complete. The commission by rule shall require an applicant for

a federal operating permit under Section 382.054 to publish

notice of intent to obtain a permit, permit amendment, or permit

review consistent with federal requirements and with the

requirements of Subsection (b). 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 the form and

content of the notice and when notice must be published. The

commission may require publication of additional notice. The

commission by rule shall prescribe alternative procedures for

publication of the notice in a newspaper if the applicant is a

small business stationary source as defined by Section 5.135,

Water Code, and will not have a significant effect on air

quality. The alternative procedures must be cost-effective while

ensuring adequate 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) the location at which a copy of the application is available

for review and copying as provided by Subsection (d);

(3) a description, including a telephone number, of the manner

in which the commission may be contacted for further information;

(4) a description, including a telephone number, of the manner

in which the applicant may be contacted for further information;

(5) a description of the procedural rights and obligations of

the public, printed in a font style or size that clearly provides

emphasis and distinguishes it from the remainder of the notice,

that includes 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;

(6) a description of the procedure by which a person may be

placed on a mailing list in order to receive additional

information about the application;

(7) the time and location of any public meeting to be held under

Subsection (e); and

(8) any other information the commission by rule requires.

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) The applicant shall make a copy of the application available

for review and copying at a public place in the county in which

the facility or federal source is located or proposed to be

located.

(e) The applicant, in cooperation with the executive director,

may hold a public meeting in the county in which the facility or

federal source is located or proposed to be located in order to

inform the public about the application and obtain public input.

(f) The executive director shall conduct a technical review of

and issue a preliminary decision on the application.

(g) If, in response to the notice published under Subsection (a)

for a permit or permit amendment under Section 382.0518 or a

permit renewal review under Section 382.055, a person requests

during the period provided by commission rule that the commission

hold a public hearing and the request is not withdrawn before the

date the preliminary decision is issued, the applicant shall

publish notice of the preliminary decision in a newspaper, and

the commission shall seek public comment on the preliminary

decision. The commission shall consider the request for public

hearing under the procedures provided by Subsections (i)-(n). The

commission may not seek further public comment or hold a public

hearing under the procedures provided by Subsections (i)-(n) in

response to a request for a public hearing on 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.

(h) If, in response to the notice published under Subsection (a)

for a permit under Section 382.054, a person requests during the

public comment period provided by commission rule that the

commission hold a public hearing, the commission shall consider

the request under the procedures provided by Section 382.0561 and

not under the procedures provided by Subsections (i)-(n).

(i) The commission by rule shall establish the form and content

of the notice, the manner of publication, and the duration of the

public comment period. The notice must include:

(1) the information required by Subsection (b);

(2) a summary of the preliminary decision;

(3) the location at which a copy of the preliminary decision is

available for review and copying as provided by Subsection (j);

(4) a description of the manner in which comments regarding the

preliminary decision may be submitted; and

(5) any other information the commission by rule requires.

(j) The applicant shall make a copy of the preliminary decision

available for review and copying at a public place in the county

in which the facility is located or proposed to be located.

(k) During the public comment period, the executive director may

hold one or more public meetings in the county in which the

facility is located or proposed to be located. The executive

director shall hold a public meeting:

(1) on the request of a member of the legislature who represents

the general area in which the facility is located or proposed to

be located; or

(2) if the executive director determines that there is

substantial public interest in the proposed activity.

(k-1) A permit applicant or the applicant's designated

representative is required to attend a public meeting held under

this section and must make a reasonable effort to respond to

questions relevant to the permit application at the meeting.

(l) The executive director, in accordance with procedures

adopted by the commission by rule, shall file with the chief

clerk of the commission a response to each relevant and material

public comment on the preliminary decision filed during the

public comment period.

(m) The chief clerk of the commission shall transmit the

executive director's decision, the executive director's response

to public comments, and instructions for requesting that the

commission reconsider the executive director's decision or hold a

contested case hearing to:

(1) the applicant;

(2) any person who submitted comments during the public comment

period;

(3) any person who requested to be on the mailing list for the

permit action; and

(4) any person who timely filed a request for a public hearing

in response to the notice published under Subsection (a).

(n) Except as provided by Section 382.0561, the commission shall

consider a request that the commission reconsider the executive

director's decision or hold a public hearing in accordance with

the procedures provided by Sections 5.556 and 5.557, Water Code.

(o) Notwithstanding other provisions of this chapter, the

commission may hold a hearing on a permit amendment,

modification, or renewal if the commission determines that the

application involves a facility for which the applicant's

compliance history is in the lowest classification under Sections

5.753 and 5.754, Water Code, and rules adopted and procedures

developed under those sections.

(p) The commission by rule shall provide for additional notice,

opportunity for public comment, or opportunity for public hearing

to the extent necessary to satisfy a requirement to obtain or

maintain delegation or approval of a federal program.

(q) The department shall establish rules to ensure that a permit

applicant complies with the notice requirement under Subsection

(a).

(r) This section does not apply to:

(1) the relocation or change of location of a portable facility

to a site where a portable facility has been located at the

proposed site at any time during the previous two years;

(2) a facility located temporarily in the right-of-way, or

contiguous to the right-of-way, of a public works project; or

(3) a facility described by Section 382.065(c), unless that

facility is in a county with a population of 2.4 million or more

or in a county adjacent to such a county.

(s) For any permit application subject to this section, the

measurement of distances to determine compliance with any

location or distance restriction required by this chapter shall

be taken toward structures that are in use as of the date that

the application is filed with the commission.

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; 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;

Acts 1999, 76th Leg., ch. 62, Sec. 11.04(c), eff. Sept. 1, 1999;

Acts 1999, 76th Leg., ch. 1350, Sec. 5, eff. Sept. 1, 1999; Acts

2001, 77th Leg., ch. 935, Sec. 4, eff. June 14, 2001; Acts 2001,

77th Leg., ch. 965, Sec. 2.02, 16.15, eff. Sept. 1, 2001; Acts

2001, 77th Leg., ch. 1327, Sec. 3, eff. Sept. 1, 2001; Acts 2003,

78th Leg., ch. 226, Sec. 1, eff. June 18, 2003; Acts 2003, 78th

Leg., ch. 1054, Sec. 1, eff. June 20, 2003.

Amended by:

Acts 2005, 79th Leg., Ch.

728, Sec. 9.0035(e), eff. September 1, 2005.

Acts 2009, 81st Leg., R.S., Ch.

809, Sec. 1, eff. September 1, 2009.

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.

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, Sec. 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.

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. 382.0565. CLEAN COAL PROJECT PERMITTING PROCEDURE. (a)

The United States Department of Energy may specify the FutureGen

emissions profile for a project in that department's request for

proposals or request for a contract. If the United States

Department of Energy does not specify in a request for proposals

or a request for a contract the FutureGen emissions profile, the

profile means emissions of air contaminants at a component of the

FutureGen project, as defined by Section 5.001, Water Code, that

equal not more than:

(1) one percent of the average sulphur content of the coal or

coals used for the generation of electricity at the component;

(2) 10 percent of the average mercury content of the coal or

coals used for the generation of electricity at the component;

(3) 0.05 pounds of nitrogen oxides per million British thermal

units of energy produced at the component; and

(4) 0.005 pounds of particulate matter per million British

thermal units of energy produced at the component.

(b) As authorized by federal law, the commission by rule shall

implement reasonably streamlined processes for issuing permits

required to construct a component of the FutureGen project

designed to meet the FutureGen emissions profile.

commission shall use public meetings, informal conferences, or

advisory committees to gather the opinions and advice of

interested persons.

(d) The permit processes authorized by this section are not

subject to the requirements relating to a contested case hearing

under this chapter, Chapter 5, Water Code, or Subchapters C-G,

Chapter 2001, Government Code.

(e) This section does not apply to an application for a permit

to construct or modify a new or existing coal-fired electric

generating facility that will use pulverized or supercritical

pulverized coal.

Added by Acts 2005, 79th Leg., Ch.

1097, Sec. 3, eff. June 18, 2005.

Sec. 382.0566. ADVANCED CLEAN ENERGY PROJECT PERMITTING

PROCEDURE. (a) As authorized by federal law, not later than

nine months after the executive director declares an application

for a permit under this chapter for an advanced clean energy

project to be administratively complete, the executive director

shall complete its technical review of the application.

(b) The commission shall issue a final order issuing or denying

the permit not later than nine months after the executive

director declares the application technically complete. The

commission may extend the deadline set out in this subsection up

to three months if it determines that the number of complex

pending applications for permits under this chapter will prevent

the commission from meeting the deadline imposed by this

subsection without creating an extraordinary burden on the

resources of the commission.

the requirements relating to a contested case hearing under this

chapter, Chapter 5, Water Code, or Subchapters C-G, Chapter 2001,

Government Code, as applicable.

(d) The commission shall adopt rules to implement this section.

Added by Acts 2007, 80th Leg., R.S., Ch.

1277, Sec. 3, eff. September 1, 2007.

Sec. 382.0567. PROOF THAT TECHNOLOGY IS COMMERCIALLY FEASIBLE

NOT REQUIRED; CONSIDERATION OF TECHNOLOGY TO BE ACHIEVABLE FOR

CERTAIN PURPOSES PROHIBITED. (a) An applicant for a permit

under this chapter for a project in connection with which

advanced clean energy technology, federally qualified clean coal

technology, or another technology is proposed to be used is not

required to prove, as part of an analysis of whether the project

will use the best available control technology or reduce

emissions to the lowest achievable rate, that the technology

proposed to be used has been demonstrated to be feasible in a

commercial operation.

(b) The commission may not consider any technology or level of

emission reduction to be achievable for purposes of a best

available control technology analysis or lowest achievable

emission rate analysis conducted by the commission under another

provision of this chapter solely because the technology is used

or the emission reduction is achieved by a facility receiving an

incentive as an advanced clean energy project or new technology

project, as described by Section 391.002.

Added by Acts 2007, 80th Leg., R.S., Ch.

1277, Sec. 3, eff. September 1, 2007.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

1125, Sec. 4, eff. September 1, 2009.

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 if it is found on

investigation that such changes 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 modification of an

existing facility defined as "major" under any applicable

preconstruction permitting requirements of 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; 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;

Acts 1999, 76th Leg., ch. 406, Sec. 6, eff. Aug. 30, 1999.

Sec. 382.058. NOTICE OF AND HEARING ON CONSTRUCTION OF CONCRETE

PLANT UNDER PERMIT BY RULE, STANDARD PERMIT, OR EXEMPTION. (a)

A person may not begin construction on any concrete plant that

performs wet batching, dry batching, or central mixing under a

standard permit under Section 382.05195 or a permit by rule

adopted by the commission under Section 382.05196 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.

residing in a permanent residence within 440 yards of the

proposed plant may request a hearing under Section 382.056 as a

person who may be affected.

(d) If the commission considers air dispersion modeling

information in the course of adopting an exemption under Section

382.057 for a concrete plant that performs wet batching, dry

batching, or central mixing, the commission may not require that

a person who qualifies for the exemption conduct air dispersion

modeling before beginning construction of a concrete plant, and

evidence regarding air dispersion modeling may not be submitted

at a hearing under Section 382.056.

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; Acts 1999, 76th Leg., ch. 391, Sec. 1, 2, eff. Aug. 30,

1999; Acts 1999, 76th Leg., ch. 406, Sec. 7, eff. Aug. 30, 1999;

Acts 2001, 77th Leg., ch. 1420, Sec. 10.002, eff. Sept. 1, 2001.

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.

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.

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; 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, for a permit, for a permit by

rule, for a voluntary emissions reduction permit, for a multiple

plant permit, or for a standard permit and for a variance.

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;

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; 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; Acts 1999, 76th Leg., ch. 406, Sec. 8, eff. Aug. 30, 1999.

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.

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) Except as provided by this section, 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. On and after September 1, 2001, for a facility that is

not subject to the requirement to obtain a permit under Section

382.0518(g) that does not have a permit application pending, the

commission shall:

(1) impose a fee under this section for all emissions, including

emissions in excess of 4,000 tons; and

(2) treble the amount of the fee imposed for emissions in excess

of 4,000 tons each fiscal year.

(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; Acts 1999, 76th Leg., ch. 406, Sec.

9, eff. Aug. 30, 1999.

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, 382.202, and 382.302 and as otherwise provided by law;

(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; and

(3) fees collected that are required under Section 185 of the

federal Clean Air Act (42 U.S.C. Section 7511d).

(b) Except as provided by Subsection (b-1), 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.

(b-1) Fees collected under Section 382.0621(a) on or after

September 1, 2003, shall be deposited in the state treasury to

the credit of the operating permit fees account. Fees collected

under Section 382.0621(a) may not be commingled with any fees in

the clean air account or with any other money in the state

treasury.

(b-2) Money in the operating permit fees account established

under Subsection (b-1) may be appropriated to the commission only

to cover the costs of developing and administering the federal

permit programs under Title IV or V of the federal Clean Air Act

(42 U.S.C. Section 7651 et seq. and Section 7661 et seq.).

(b-3) Section 403.095, Government Code, does not apply to the

operating permit fees account established under Subsection (b-1),

and any balance remaining in the operating permit fees account at

the end of a fiscal year shall be left in the account and used in

the next or subsequent fiscal years only for the purposes stated

in Subsection (b-2).

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

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.

(e) Repealed by Acts 2007, 80th Leg., R.S., Ch. 262, Sec.

1.10(1), eff. June 8, 2007.

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; Acts 2001, 77th Leg., ch. 1075, Sec. 2, eff. Sept.

1, 2001; Acts 2003, 78th Leg., ch. 203, Sec. 2, eff. June 10,

2003; Acts 2003, 78th Leg., ch. 552, Sec. 1, eff. Sept. 1, 2003.

Amended by:

Acts 2005, 79th Leg., Ch.

958, Sec. 1, eff. June 18, 2005.

Acts 2007, 80th Leg., R.S., Ch.

262, Sec. 1.02, eff. June 8, 2007.

Acts 2007, 80th Leg., R.S., Ch.

262, Sec. 1.10(1), eff. June 8, 2007.

Acts 2009, 81st Leg., R.S., Ch.

1125, Sec. 11, eff. September 1, 2009.

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, Sec. 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.

Sec. 382.065. CERTAIN LOCATIONS FOR OPERATING CONCRETE CRUSHING

FACILITY PROHIBITED. (a) The commission by rule shall prohibit

the operation of a concrete crushing facility within 440 yards of

a building in use as a single or multifamily residence, school,

or place of worship at the time the application for a permit to

operate the facility at a site near the residence, school, or

place of worship is filed with the commission. The measurement of

distance for purposes of this subsection shall be taken from the

point on the concrete crushing facility that is nearest to the

residence, school, or place of worship toward the point on the

residence, school, or place of worship that is nearest the

concrete crushing facility.

(b) Subsection (a) does not apply to a concrete crushing

facility:

(1) at a location for which commission authorization for the

operation of a concrete crushing facility was in effect on

September 1, 2001; or

(2) at a location that satisfies the distance requirements of

Subsection (a) at the time the application for the initial

authorization for the operation of that facility at that location

is filed with the commission, provided that the authorization is

granted and maintained, regardless of whether a single or

multifamily residence, school, or place of worship is

subsequently built or put to use within 440 yards of the

facility.

not apply to a concrete crushing facility that:

(1) is engaged in crushing concrete and other materials produced

by the demolition of a structure at the location of the structure

and the concrete and other materials are being crushed primarily

for use at that location;

(2) operates at that location for not more than 180 days;

(3) the commission determines will cause no adverse

environmental or health effects by operating at that location;

and

(4) complies with conditions stated in commission rules,

including operating conditions.

(d) Notwithstanding Subsection (c), Subsection (a) applies to a

concrete crushing facility in a county with a population of 2.4

million or more or in a county adjacent to such a county.

Added by Acts 2001, 77th Leg., ch. 965, Sec. 5.07, eff. Sept. 1,

2001. Amended by Acts 2003, 78th Leg., ch. 1054, Sec. 2, eff.

June 20, 2003.

Sec. 382.066. SHIPYARD FACILITIES. (a) In this section,

"shipyard" means a shipbuilding or ship repair operation.

(b) In determining whether to issue, or in conducting a review

of, a permit or other authorization issued or adopted under this

chapter for a shipyard, the commission:

(1) may not require and may not consider air dispersion modeling

results predicting ambient concentrations of noncriteria

pollutants over coastal waters of the state; and

(2) shall determine compliance with noncriteria ambient air

pollutant standards and guidelines according to the land-based

off-property concentrations of air contaminants.

take an enforcement action in response to a condition that

constitutes a nuisance.

Added by Acts 2001, 77th Leg., ch. 1166, Sec. 1, eff. Sept. 1,

2001. Renumbered from Health & Safety Code Sec. 382.065 by

Acts 2003, 78th Leg., ch. 1275, Sec. 2(94), eff. Sept. 1, 2003.

Sec. 382.068. POULTRY FACILITY ODOR; RESPONSE TO COMPLAINTS.

(a) In this section, "poultry facility" and "poultry litter"

have the meanings assigned by Section 26.301, Water Code.

(b) The commission shall respond and investigate not later than

18 hours after receiving:

(1) a second complaint against a poultry facility concerning

odor associated with:

(A) the facility; or

(B) the application of poultry litter to land by the poultry

facility; or

(2) a complaint concerning odor from a poultry facility at which

the commission has substantiated odor nuisance conditions in the

previous 12 months.

poultry facility is violating the terms of its air quality

authorization or is creating a nuisance, the commission shall

issue a notice of violation.

(d) The commission by rule or order shall require the owner or

operator of a poultry facility for which the commission has

issued three notices of violation under this section during a

12-month period to enter into a comprehensive compliance

agreement with the commission. The compliance agreement must

include an odor control plan that the executive director

determines is sufficient to control odors.

(e) The owner or operator of a new poultry facility shall

complete a poultry facility training course on the prevention of

poultry facility odor nuisances from the poultry science unit of

the Texas AgriLife Extension Service not later than the 90th day

after the date the facility first accepts poultry to raise. The

owner or operator of a new poultry facility shall maintain

records of the training and make the records available to the

commission for inspection.

(f) The poultry science unit of the Texas AgriLife Extension

Service may charge an owner or operator of a poultry facility a

training fee to offset the direct cost of providing the training.

Added by Acts 2009, 81st Leg., R.S., Ch.

1386, Sec. 1, eff. September 1, 2009.

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 G. VEHICLE EMISSIONS

Sec. 382.201. DEFINITIONS. In this subchapter:

(1) "Affected county" means a county with a motor vehicle

emissions inspection and maintenance program established under

Section 548.301, Transportation Code.

(2) "Commercial vehicle" means a vehicle that is owned or leased

in the regular course of business of a commercial or business

entity.

(3) "Fleet vehicle" means a motor vehicle operated as one of a

group that consists of more than 10 motor vehicles and that is

owned and operated by a public or commercial entity or by a

private entity other than a single household.

(4) "Participating county" means an affected county in which the

commissioners court by resolution has chosen to implement a

low-income vehicle repair assistance, retrofit, and accelerated

vehicle retirement program authorized by Section 382.209.

(5) "Retrofit" means to equip, or the equipping of, an engine or

an exhaust or fuel system with new, emissions-reducing parts or

equipment designed to reduce air emissions and improve air

quality, after the manufacture of the original engine or exhaust

or fuel system, so long as the parts or equipment allow the

vehicle to meet or exceed state and federal air emissions

reduction standards.

(6) "Retrofit equipment" means emissions-reducing equipment

designed to reduce air emissions and improve air quality that is

installed after the manufacture of the original engine or exhaust

or fuel system.

(7) "Vehicle" includes a fleet vehicle.

Added by Acts 2001, 77th Leg., ch. 1075, Sec. 1, eff. Sept. 1,

2001.

Sec. 382.202. 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.) and its

subsequent amendments.

(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.

commission:

(1) shall adopt vehicle emissions inspection and maintenance

requirements for certain areas as required by federal law or

regulation; and

(2) shall 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, contractor, or operator to

recover the cost of performing the inspections and provide for 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:

(1) shall, no less frequently than biennially, review the fee

established under Subsection (e); and

(2) may use part of the fee collected under Subsection (e) to

provide incentives, including financial incentives, for

participation in the testing network to ensure availability of an

adequate number of testing stations.

(g) The commission shall:

(1) use part of the fee collected under Subsection (e) to fund

low-income vehicle repair assistance, retrofit, and accelerated

vehicle retirement programs created under Section 382.209; and

(2) to the extent practicable, distribute available funding

created under Subsection (e) to participating counties in

reasonable proportion to the amount of fees collected under

Subsection (e) in those counties or in the regions in which those

counties are located.

(h) Regardless of whether different tests are used for different

vehicles as determined under Section 382.205, the commission may:

(1) set fees assessed under Subsection (e) at the same rate for

each vehicle in a county or region; and

(2) set different fees for different counties or regions.

(i) 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.

(j) The commission may not establish, before January 1, 2004,

vehicle fuel content standards to provide for vehicle fuel

content for clean motor vehicle fuels for any area of the state

that are more stringent or restrictive than those standards

promulgated by the United States Environmental Protection Agency

applicable to that area except as provided in Subsection (o)

unless the fuel is specifically authorized by the legislature.

(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) 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.

(m) The commission may conduct audits to determine compliance

with this section.

(n) The commission may suspend the emissions inspection program

as it applies to pre-1996 vehicles in an affected county if:

(1) the department certifies that the number of pre-1996

vehicles in the county subject to the program is 20 percent or

less of the number of those vehicles that were in the county on

September 1, 2001; and

(2) an alternative testing methodology that meets or exceeds

United States Environmental Protection Agency requirements is

available.

(o) The commission may not require the distribution of Texas

low-emission diesel as described in revisions to the State

Implementation Plan for the control of ozone air pollution prior

to February 1, 2005.

(p) The commission may consider, as an alternative method of

compliance with Subsection (o), fuels to achieve equivalent

emissions reductions.

(q) Repealed by Acts 2007, 80th Leg., R.S., Ch. 262, Sec.

1.10(2), eff. June 8, 2007.

(r) Repealed by Acts 2007, 80th Leg., R.S., Ch. 262, Sec.

1.10(2), eff. June 8, 2007.

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; 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, Sec. 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.

Renumbered from Health & Safety Code Sec. 382.037 and amended

by Acts 2001, 77th Leg., ch. 1075, Sec. 1, eff. Sept. 1, 2001;

Acts 2003, 78th Leg., ch. 1276, Sec. 10.008(a), eff. Sept. 1,

2003.

Amended by:

Acts 2005, 79th Leg., Ch.

958, Sec. 2, eff. June 18, 2005.

Acts 2007, 80th Leg., R.S., Ch.

262, Sec. 1.10(2), eff. June 8, 2007.

Sec. 382.203. 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 an

affected county; and

(2) at least two and less than 25 years old; or

(3) subject to test-on-resale requirements under Section

548.3011, Transportation Code.

(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 an affected county;

(2) a vehicle operated on a federal facility in an affected

county; and

(3) a vehicle primarily operated in an affected county that is

exempt from motor vehicle registration requirements or eligible

under Chapter 502, Transportation Code, to display an "exempt"

license plate.

rule 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 cannot afford to

comply with the program, based on reasonable income standards;

(2) a vehicle that cannot be brought into compliance with

emissions standards by performing repairs;

(3) a vehicle:

(A) on which at least $100 has been spent to bring the vehicle

into compliance; and

(B) that the department:

(i) can verify was driven fewer than 5,000 miles since the last

safety inspection; and

(ii) reasonably determines will be driven fewer than 5,000 miles

during the period before the next safety inspection is required;

and

(4) a vehicle for which parts are not readily available.

(d) The program does not apply to a:

(1) motorcycle;

(2) slow-moving vehicle as defined by Section 547.001,

Transportation Code; or

(3) vehicle that is registered but not operated primarily in a

county or group of counties subject to a motor vehicle emissions

inspection program established under Subchapter F, Chapter 548,

Transportation Code.

Added by Acts 1997, 75th Leg., ch. 1069, Sec. 2, eff. June 19,

1997. Renumbered from Sec. 382.0372 and amended by Acts 2001,

77th Leg., ch. 1075, Sec. 1, eff. Sept. 1, 2001.

Sec. 382.204. 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

vehicle emissions testing and 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) and its

subsequent amendments, in any affected county, or in any county

adjacent to an affected county.

county is detected under the program component authorized by this

section as operating and exceeding acceptable emissions

limitations in an affected county, the department shall provide

notice of the violation under Section 548.306, Transportation

Code.

Added by Acts 1997, 75th Leg., ch. 1069, Sec. 2, eff. June 19,

1997. Renumbered from Sec. 382.0373 and amended by Acts 2001,

77th Leg., ch. 1075, Sec. 1, eff. Sept. 1, 2001.

Sec. 382.205. 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) In adopting standards and specifications under Subsection

(a), the commission may require different types of tests for

different vehicle models.

State of Texas, the commission may contract with one or more

private entities to provide testing equipment, training, and

related services to inspection stations in exchange for part of

the testing fee. A contract under this subsection may apply to

one specified area of the state or to the entire state. The

commission at least once during each year shall review each

contract entered into under this subsection to determine whether

the contracting entity is performing satisfactorily under the

terms of the contract. Immediately after completing the review,

the commission shall prepare a report summarizing the review and

send a copy of the report to the speaker of the house of

representatives, the lieutenant governor, and the governor.

(d) 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.

(e) The commission and the Department of Public Safety of the

State of Texas by joint rule may adopt procedures to encourage a

stable private market for providing emissions testing to the

public in all areas of an affected county, including:

(1) allowing facilities to perform one or more types of

emissions tests; and

(2) any other measure the commission and the Department of

Public Safety consider appropriate.

(f) Rules and procedures under this section must ensure that

approved repair facilities participating in a low-income vehicle

repair assistance, retrofit, and accelerated vehicle retirement

program established under Section 382.209 have access to adequate

testing equipment.

(g) Subject to Subsection (h), the commission and the Department

of Public Safety of the State of Texas by rule may allow

alternative vehicle emissions testing if:

(1) the technology provides accurate and reliable results;

(2) the technology is widely and readily available to persons

interested in performing alternative vehicle emissions testing;

and

(3) the use of alternative testing is not likely to

substantially affect federal approval of the state's air quality

state implementation plan.

(h) A rule adopted under Subsection (g) may not be more

restrictive than federal regulations governing vehicle emissions

testing.

Added by Acts 1997, 75th Leg., ch. 1069, Sec. 2, eff. June 19,

1997. Amended by Acts 1999, 76th Leg., ch. 1189, Sec. 42, eff.

Sept. 1, 1999. Renumbered from Sec. 382.0374 and amended by Acts

2001, 77th Leg., ch. 1075, Sec. 1, eff. Sept. 1, 2001.

Sec. 382.206. 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. Renumbered from Sec. 382.0375 by Acts 2001, 77th Leg., ch.

1075, Sec. 1, eff. Sept. 1, 2001.

Sec. 382.207. 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.

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. Renumbered from Sec. 382.038 by Acts 2001, 77th

Leg., ch. 1075, Sec. 1, eff. Sept. 1, 2001.

Sec. 382.208. ATTAINMENT PROGRAM. (a) Except as provided by

Section 382.202(j) or another provision of this chapter, 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; Acts 2001, 77th Leg., ch. 965, Sec.

15.03, eff; Sept. 1, 2001. Renumbered from Sec. 382.039 by Acts

2001, 77th Leg., ch; 1075, Sec. 1, eff. Sept. 1, 2001; Acts 2003,

78th Leg., ch. 1276, Sec. 10.008(c), eff. Sept. 1, 2003.

Sec. 382.209. LOW-INCOME VEHICLE REPAIR ASSISTANCE, RETROFIT,

AND ACCELERATED VEHICLE RETIREMENT PROGRAM. (a) The commission

and the Public Safety Commission by joint rule shall establish

and authorize the commissioners court of a participating county

to implement a low-income vehicle repair assistance, retrofit,

and accelerated vehicle retirement program subject to agency

oversight that may include reasonable periodic commission audits.

(b) The commission shall provide funding for local low-income

vehicle repair assistance, retrofit, and accelerated vehicle

retirement programs with available funds collected under Section

382.202, 382.302, or other designated and available funds. The

programs shall be administered in accordance with Chapter 783,

Government Code. Program costs may include call center

management, application oversight, invoice analysis, education,

outreach, and advertising. Not more than 10 percent of the money

provided to a local low-income vehicle repair assistance,

retrofit, and accelerated vehicle retirement program under this

section may be used for the administration of the programs,

including program costs.

procedures for ensuring that a program implemented under

authority of that subsection does not apply to a vehicle that is:

(1) registered under Section 502.274 or 502.275, Transportation

Code; and

(2) not regularly used for transportation during the normal

course of daily activities.

(d) Subject to the availability of funds, a low-income vehicle

repair assistance, retrofit, and accelerated vehicle retirement

program established under this section shall provide monetary or

other compensatory assistance for:

(1) repairs directly related to bringing certain vehicles that

have failed a required emissions test into compliance with

emissions requirements;

(2) a replacement vehicle or replacement assistance for a

vehicle that has failed a required emissions test and for which

the cost of repairs needed to bring the vehicle into compliance

is uneconomical; and

(3) installing retrofit equipment on vehicles that have failed a

required emissions test, if practically and economically

feasible, in lieu of or in combination with repairs performed

under Subdivision (1). The commission and the Department of

Public Safety of the State of Texas shall establish standards and

specifications for retrofit equipment that may be used under this

section.

(e) A vehicle is not eligible to participate in a low-income

vehicle repair assistance, retrofit, and accelerated vehicle

retirement program established under this section unless:

(1) the vehicle is capable of being operated;

(2) the registration of the vehicle:

(A) is current; and

(B) reflects that the vehicle has been registered in the county

implementing the program for the 12 months preceding the

application for participation in the program;

(3) the commissioners court of the county administering the

program determines that the vehicle meets the eligibility

criteria adopted by the commission, the Texas Department of Motor

Vehicles, and the Public Safety Commission;

(4) if the vehicle is to be repaired, the repair is done by a

repair facility recognized by the Department of Public Safety,

which may be an independent or private entity licensed by the

state; and

(5) if the vehicle is to be retired under this subsection and

Section 382.213, the replacement vehicle is a qualifying motor

vehicle.

(f) A fleet vehicle, a vehicle owned or leased by a governmental

entity, or a commercial vehicle is not eligible to participate in

a low-income vehicle repair assistance, retrofit, and accelerated

vehicle retirement program established and implemented under this

section.

(g) A participating county may contract with any appropriate

entity, including the regional council of governments or the

metropolitan planning organization in the appropriate region, or

with another county for services necessary to implement the

participating county's low-income vehicle repair assistance,

retrofit, and accelerated vehicle retirement program. The

participating counties in a nonattainment region or counties

participating in an early action compact under Subchapter H may

agree to have the money collected in any one county be used in

any other participating county in the same region.

(h) Participation by an affected county in a low-income vehicle

repair assistance, retrofit, and accelerated vehicle retirement

program is not mandatory. To the extent allowed by federal law,

any emissions reductions attributable to a low-income vehicle

repair assistance, retrofit, and accelerated vehicle retirement

program in a county that are attained during a period before the

county is designated as a nonattainment county shall be

considered emissions reductions credit if the county is later

determined to be a nonattainment county.

(i) Notwithstanding the vehicle replacement requirements

provided by Subsection (d)(2), the commission by rule may provide

monetary or other compensatory assistance under the low-income

vehicle repair assistance, retrofit, and accelerated vehicle

retirement program, subject to the availability of funds, for the

replacement of a vehicle that meets the following criteria:

(1) the vehicle is gasoline-powered and is at least 10 years

old;

(2) the vehicle owner meets applicable financial eligibility

criteria;

(3) the vehicle meets the requirements provided by Subsections

(e)(1) and (2); and

(4) the vehicle has passed a Department of Public Safety motor

vehicle safety inspection or safety and emissions inspection

within the 15-month period before the application is submitted.

(j) The commission may provide monetary or other compensatory

assistance under the low-income vehicle repair assistance,

retrofit, and accelerated vehicle retirement program for a

replacement vehicle or replacement assistance for a pre-1996

model year replacement vehicle that passes the required United

States Environmental Protection Agency Start-Up Acceleration

Simulation Mode Standards emissions test but that would have

failed the United States Environmental Protection Agency Final

Acceleration Simulation Mode Standards emissions test or failed

to meet some other criterion determined by the commission;

provided, however, that a replacement vehicle under this

subsection must be a qualifying motor vehicle.

Added by Acts 2001, 77th Leg., ch. 1075, Sec. 1, eff. Sept. 1,

2001.

Amended by:

Acts 2005, 79th Leg., Ch.

958, Sec. 3, eff. June 18, 2005.

Acts 2007, 80th Leg., R.S., Ch.

262, Sec. 1.03, eff. June 8, 2007.

Acts 2009, 81st Leg., R.S., Ch.

933, Sec. 3F.01, eff. September 1, 2009.

Sec. 382.210. IMPLEMENTATION GUIDELINES AND REQUIREMENTS. (a)

The commission by rule shall adopt guidelines to assist a

participating county in implementing a low-income vehicle repair

assistance, retrofit, and accelerated vehicle retirement program

authorized under Section 382.209. The guidelines at a minimum

shall recommend:

(1) a minimum and maximum amount for repair assistance;

(2) a minimum and maximum amount toward the purchase price of a

replacement vehicle qualified for the accelerated retirement

program, based on vehicle type and model year, with the maximum

amount not to exceed:

(A) $3,000 for a replacement car of the current model year or

the previous three model years, except as provided by Paragraph

(C);

(B) $3,000 for a replacement truck of the current model year or

the previous two model years, except as provided by Paragraph

(C); and

year or the previous model year;

(3) criteria for determining eligibility, taking into account:

(A) the vehicle owner's income, which may not exceed 300 percent

of the federal poverty level;

(B) the fair market value of the vehicle; and

(4) safeguards for preventing fraud in the repair, purchase, or

sale of a vehicle in the program; and

(5) procedures for determining the degree and amount of repair

assistance a vehicle is allowed, based on:

(A) the amount of money the vehicle owner has spent on repairs;

(B) the vehicle owner's income; and

(b) A replacement vehicle described by Subsection (a)(2) must:

(1) except as provided by Subsection (c), be a vehicle in a

class or category of vehicles that has been certified to meet

federal Tier 2, Bin 5 or a cleaner Bin certification under 40

C.F.R. Section 86.1811-04, as published in the February 10, 2000,

Federal Register;

(2) have a gross vehicle weight rating of less than 10,000

pounds; and

(3) be a vehicle the total cost of which does not exceed

$25,000.

government to the emissions standards described by Subsection

(b)(1).

(d) A participating county shall provide an electronic means for

distributing vehicle repair or replacement funds once all program

criteria have been met with regard to the repair or replacement.

The county shall ensure that funds are transferred to a

participating dealer under this section not later than the 10th

business day after the date the county receives proof of the sale

and any required administrative documents from the participating

dealer.

(e) In rules adopted under this section, the commission shall

require a mandatory procedure that:

(1) produces a document confirming that a person is eligible to

purchase a replacement vehicle in the manner provided by this

chapter, and the amount of money available to the participating

purchaser;

(2) provides that a person who seeks to purchase a replacement

vehicle in the manner provided by this chapter is required to

have the document required by Subdivision (1) before the person

enters into negotiation for a replacement vehicle in the manner

provided by this chapter; and

(3) provides that a participating dealer who relies on a

document issued as required by Subdivision (1) has no duty to

otherwise confirm the eligibility of a person to purchase a

replacement vehicle in the manner provided by this chapter.

(f) In this section, "total cost" means the total amount of

money paid or to be paid for the purchase of a motor vehicle as

set forth as "sales price" in the form entitled "Application for

Texas Certificate of Title" promulgated by the Texas Department

of Motor Vehicles. In a transaction that does not involve the

use of that form, the term means an amount of money that is

equivalent, or substantially equivalent, to the amount that would

appear as "sales price" on the Application for Texas Certificate

of Title if that form were involved.

Added by Acts 2001, 77th Leg., ch. 1075, Sec. 1, eff. Sept. 1,

2001.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

262, Sec. 1.04, eff. June 8, 2007.

Acts 2009, 81st Leg., R.S., Ch.

933, Sec. 3F.02, eff. September 1, 2009.

Acts 2009, 81st Leg., R.S., Ch.

1125, Sec. 12, eff. September 1, 2009.

Sec. 382.211. LOCAL ADVISORY PANEL. (a) The commissioners

court of a participating county may appoint one or more local

advisory panels consisting of representatives of automobile

dealerships, the automotive repair industry, safety inspection

facilities, the public, antique and vintage car clubs, local

nonprofit organizations, and locally affected governments to

advise the county regarding the operation of the county's

low-income vehicle repair assistance, retrofit, and accelerated

vehicle retirement program, including the identification of a

vehicle make or model with intrinsic value as an existing or

future collectible.

(b) The commissioners court may delegate all or part of the

administrative and financial matters to one or more local

advisory panels established under Subsection (a).

Added by Acts 2001, 77th Leg., ch. 1075, Sec. 1, eff. Sept. 1,

2001.

Sec. 382.212. EMISSIONS REDUCTION CREDIT. (a) In this section,

"emissions reduction credit" means an emissions reduction

certified by the commission that is:

(1) created by eliminating future emissions, quantified during

or before the period in which emissions reductions are made;

(2) expressed in tons or partial tons per year; and

(3) banked by the commission in accordance with commission rules

relating to emissions banking.

(b) To the extent allowable under federal law, the commission by

rule shall authorize:

(1) the assignment of a percentage of emissions reduction credit

to a private, commercial, or business entity that purchases, for

accelerated retirement, a qualified vehicle under a low-income

vehicle repair assistance, retrofit, and accelerated vehicle

retirement program;

(2) the transferability of an assigned emissions reduction

credit;

(3) the use of emissions reduction credit by the holder of the

credit against any state or federal emissions requirements

applicable to a facility owned or operated by the holder of the

credit;

(4) the assignment of a percentage of emissions reduction

credit, on the retirement of a fleet vehicle, a vehicle owned or

leased by a governmental entity, or a commercial vehicle, to the

owner or lessor of the vehicle; and

(5) other actions relating to the disposition or use of

emissions reduction credit that the commission determines will

benefit the implementation of low-income vehicle repair

assistance, retrofit, and accelerated vehicle retirement programs

established under Section 382.209.

Added by Acts 2001, 77th Leg., ch. 1075, Sec. 1, eff. Sept. 1,

2001.

Sec. 382.213. DISPOSITION OF RETIRED VEHICLE. (a) Except as

provided by Subsection (c) and Subdivision (5) of this

subsection, a vehicle retired under an accelerated vehicle

retirement program authorized by Section 382.209 may not be

resold or reused in its entirety in this or another state.

Subject to the provisions of Subsection (i), the automobile

dealer who takes possession of the vehicle must submit to the

program administrator proof, in a manner adopted by the

commission, that the vehicle has been retired. The vehicle must

be:

(1) destroyed;

(2) recycled;

(3) dismantled and its parts sold as used parts or used in the

program;

(4) placed in a storage facility of a program established under

Section 382.209 and subsequently destroyed, recycled, or

dismantled and its parts sold or used in the program; or

(5) repaired, brought into compliance, and used as a replacement

vehicle under Section 382.209(d)(2).

(b) Not more than 10 percent of all vehicles eligible for

retirement under this section may be used as replacement vehicles

under Subsection (a)(5).

existing or future collectible vehicle under Section 382.211 may

be sold to an individual if the vehicle:

(1) is repaired and brought into compliance;

(2) is removed from the state;

(3) is removed from an affected county; or

(4) is stored for future restoration and cannot be registered in

an affected county except under Section 502.274 or 502.275,

Transportation Code.

(d) Notwithstanding Subsection (a)(3), the dismantler of a

vehicle shall scrap the emissions control equipment and engine.

The dismantler shall certify that the equipment and engine have

been scrapped and not resold into the marketplace. A person who

causes, suffers, allows, or permits a violation of this

subsection or of a rule adopted under this section is subject to

a civil penalty under Subchapter D, Chapter 7, Water Code, for

each violation. For purposes of this subsection, a separate

violation occurs with each fraudulent certification or prohibited

resale.

(e) Notwithstanding Subsection (d), vehicle parts not related to

emissions control equipment or the engine may be resold in any

state. The only cost to be paid by a recycler for the residual

scrap metal of a vehicle retired under this section shall be the

cost of transportation of the residual scrap metal to the

recycling facility.

(f) Any dismantling of vehicles or salvaging of steel under this

section must be performed at a facility located in this state.

(g) In dismantling a vehicle under this section, the dismantler

shall remove any mercury switches in accordance with state and

federal law.

(h) For purposes of this section, the commission shall adopt

rules defining "emissions control equipment" and "engine."

(i) Notwithstanding any other provision of this section, and

except as provided by this subsection, a dealer is in compliance

with this section and incurs no civil or criminal liability as a

result of the disposal of a replaced vehicle if the dealer

produces proof of transfer of the replaced vehicle by the dealer

to a dismantler. The defense provided by this subsection is not

available to a dealer who knowingly and intentionally conspires

with another person to violate this section.

Added by Acts 2001, 77th Leg., ch. 1075, Sec. 1, eff. Sept. 1,

2001.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

262, Sec. 1.05, eff. June 8, 2007.

Sec. 382.214. SALE OF VEHICLE WITH INTENT TO DEFRAUD. (a) A

person who with intent to defraud sells a vehicle in an

accelerated vehicle retirement program established under Section

382.209 commits an offense that is a third degree felony.

(b) Sale of a vehicle in an accelerated vehicle retirement

program includes:

(1) sale of the vehicle to retire the vehicle under the program;

and

(2) sale of a vehicle purchased for retirement under the

program.

Added by Acts 2001, 77th Leg., ch. 1075, Sec. 1, eff. Sept. 1,

2001.

Sec. 382.215. SALE OF VEHICLE NOT REQUIRED. Nothing in this

subchapter may be construed to require a vehicle that has failed

a required emissions test to be sold or destroyed by the owner.

Added by Acts 2001, 77th Leg., ch. 1075, Sec. 1, eff. Sept. 1,

2001.

Sec. 382.216. INCENTIVES FOR VOLUNTARY PARTICIPATION IN VEHICLE

EMISSIONS INSPECTION AND MAINTENANCE PROGRAM. The commission,

the Texas Department of Transportation, and the Public Safety

Commission may, subject to federal limitations:

(1) encourage counties likely to exceed federal clean air

standards to implement voluntary:

(A) motor vehicle emissions inspection and maintenance programs;

and

(B) low-income vehicle repair assistance, retrofit, and

accelerated vehicle retirement programs;

(2) establish incentives for counties to voluntarily implement

motor vehicle emissions inspection and maintenance programs and

low-income vehicle repair assistance, retrofit, and accelerated

vehicle retirement programs; and

(3) designate a county that voluntarily implements a motor

vehicle emissions inspection and maintenance program or a

low-income vehicle repair assistance, retrofit, and accelerated

vehicle retirement program as a "Clean Air County" and give

preference to a county designated as a Clean Air County in any

federal or state clean air grant program.

Added by Acts 2001, 77th Leg., ch. 1075, Sec. 1, eff. Sept. 1,

2001.

Sec. 382.218. REQUIRED PARTICIPATION BY CERTAIN COUNTIES. (a)

This section applies only to a county with a population of

650,000 or more that borders the United Mexican States.

(b) A county that was at any time required, because of the

county's designation as a nonattainment area under Section 107(d)

of the federal Clean Air Act (42 U.S.C. Section 7407), to

participate in the vehicle emissions inspection and maintenance

program under this subchapter and Subchapter F, Chapter 548,

Transportation Code, shall continue to participate in the program

even if the county is designated as an attainment area under the

federal Clean Air Act.

Added by Acts 2005, 79th Leg., Ch.

958, Sec. 4, eff. June 18, 2005.

Sec. 382.219. PURCHASE OF REPLACEMENT VEHICLE; AUTOMOBILE

DEALERSHIPS. (a) An amount described by Section 382.210(a)(2)

may be used as a down payment toward the purchase of a

replacement vehicle.

(b) An automobile dealer that participates in the procedures and

programs offered by this chapter must be located in the state.

No dealer is required to participate in the procedures and

programs provided by this chapter.

Added by Acts 2007, 80th Leg., R.S., Ch.

262, Sec. 1.06, eff. June 8, 2007.

Sec. 382.220. USE OF FUNDING FOR LOCAL INITIATIVE PROJECTS. (a)

Money that is made available to participating counties under

Section 382.202(g) or 382.302 may be appropriated only for

programs administered in accordance with Chapter 783, Government

Code, to improve air quality. A participating county may agree

to contract with any appropriate entity, including a metropolitan

planning organization or a council of governments to implement a

program under Section 382.202, 382.209, or this section.

(b) A program under this section must be implemented in

consultation with the commission and may include a program to:

(1) expand and enhance the AirCheck Texas Repair and Replacement

Assistance Program;

(2) develop and implement programs or systems that remotely

determine vehicle emissions and notify the vehicle's operator;

(3) develop and implement projects to implement the commission's

smoking vehicle program;

(4) develop and implement projects for coordinating with local

law enforcement officials to reduce the use of counterfeit state

inspection stickers by providing local law enforcement officials

with funds to identify vehicles with counterfeit state inspection

stickers and to carry out appropriate actions;

(5) develop and implement programs to enhance transportation

system improvements; or

(6) develop and implement new air control strategies designed to

assist local areas in complying with state and federal air

quality rules and regulations.

program under Subsection (b) may not be expended for local

government fleet or vehicle acquisition or replacement, call

center management, application oversight, invoice analysis,

education, outreach, or advertising purposes.

(d) Fees collected under Sections 382.202 and 382.302 may be

used, in an amount not to exceed $5 million per fiscal year, for

projects described by Subsection (b). The fees shall be made

available only to counties participating in the low-income

vehicle repair assistance, retrofit, and accelerated vehicle

retirement programs created under Section 382.209 and only on a

matching basis, whereby the commission provides money to a county

in the same amount that the county dedicates to a project

authorized by Subsection (b). The commission may reduce the

match requirement for a county that proposes to develop and

implement independent test facility fraud detection programs,

including the use of remote sensing technology for coordinating

with law enforcement officials to detect, prevent, and prosecute

the use of counterfeit state inspection stickers.

Added by Acts 2007, 80th Leg., R.S., Ch.

262, Sec. 1.07, eff. June 8, 2007.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

1125, Sec. 13, eff. September 1, 2009.

SUBCHAPTER H. VEHICLE EMISSIONS PROGRAMS IN CERTAIN COUNTIES

Sec. 382.301. DEFINITIONS. In this subchapter:

(1) "Early action compact" means an agreement entered into

before January 1, 2003, by the United States Environmental

Protection Agency, the commission, the governing body of a county

that is in attainment of the one-hour national ambient air

quality standard for ozone but that has incidents approaching, or

monitors incidents that exceed, the eight-hour national ambient

air quality standard for ozone, and the governing body of the

most populous municipality in that county that results in the

submission of:

(A) an early action plan to the commission that the commission

finds to be adequate; and

(B) a state implementation plan revision to the United States

Environmental Protection Agency on or before December 31, 2004,

that provides for attainment of the eight-hour national ambient

air quality standard for ozone on or before December 31, 2007.

(2) "Participating county" means a county that is a party to an

early action compact.

Added by Acts 2003, 78th Leg., ch. 203, Sec. 1, eff. June 10,

2003.

Sec. 382.302. INSPECTION AND MAINTENANCE PROGRAM. (a) A

participating county whose early action plan contains provisions

for a motor vehicle emissions inspection and maintenance program

and has been found adequate by the commission may formally

request the commission to adopt motor vehicle emissions

inspection and maintenance program requirements for the county.

The request must be made by a resolution adopted by the governing

body of the participating county and the governing body of the

most populous municipality in the county.

(b) After approving a request made under Subsection (a), the

commission by resolution may request the Public Safety Commission

to establish motor vehicle emissions inspection and maintenance

program requirements for the participating county under

Subchapter F, Chapter 548, Transportation Code, in accordance

with this section and rules adopted under this section. The motor

vehicle emissions inspection and maintenance program requirements

for the participating county may include exhaust emissions

testing, emissions control devices and systems inspections, or

other testing methods that meet or exceed United States

Environmental Protection Agency requirements, and a remote

sensing component as provided by Section 382.204. The motor

vehicle emissions inspection and maintenance program requirements

adopted for the participating county may apply to all or to a

defined subset of vehicles described by Section 382.203.

performed in accordance with a program established under this

section. The fee must be in an amount reasonably necessary to

recover the costs of developing, administering, evaluating, and

enforcing the participating county's motor vehicle emissions

inspection and maintenance program. An appropriate part of the

fee as determined by commission rule may be retained by the

station owner, contractor, or operator to recover the cost of

performing the inspection and provide for a reasonable margin of

profit.

(d) The incentives for voluntary participation established under

Section 382.216 shall be made available to a participating

county.

(e) A participating county may participate in the program

established under Section 382.209.

Added by Acts 2003, 78th Leg., ch. 203, Sec. 1, eff. June 10,

2003.

SUBCHAPTER I. PROGRAMS TO ENCOURAGE THE USE OF

INNOVATIVE TECHNOLOGIES

Sec. 382.401. ALTERNATIVE LEAK DETECTION TECHNOLOGY. (a) In

this section, "alternative leak detection technology" means

technology, including optical gas imaging technology, designed to

detect leaks and emissions of air contaminants.

(b) The commission by rule shall establish a program that allows

the owner or operator of a facility regulated under this chapter

to use voluntarily as a supplemental detection method any leak

detection technology that has been incorporated and adopted by

the United States Environmental Protection Agency into a program

for detecting leaks or emissions of air contaminants. The

program must provide regulatory incentives to encourage voluntary

use of the alternative leak detection technology at a regulated

facility that is capable of detecting leaks or emissions that may

not be detected by methods or technology approvable under the

commission's regulatory program for leak detection and repair in

effect on the date the commission adopts the program. The

incentives may include:

(1) on-site technical assistance; and

(2) to the extent consistent with federal requirements:

(A) inclusion of the facility's use of alternative leak

detection technology in the owner or operator's compliance

history and compliance summaries;

(B) consideration of the implementation of alternative leak

detection technology in scheduling and conducting compliance

inspections; and

requirements based on the emissions reductions achieved by

voluntary use of alternative leak detection technology.

leak detection technology shall repair and record an emission or

leak of an air contaminant from a component subject to the

commission's regulatory program for leak detection and repair

that is detected by the alternative technology as provided by the

commission's leak detection and repair rules in effect at the

time of the detection. A repair to correct an emission or leak

detected by the use of alternative leak detection technology may

be confirmed using the same technology.

(d) As part of the program of incentives adopted under

Subsection (b), the commission shall:

(1) ensure that the owner or operator of a facility records and

repairs, if possible and within a reasonable period, any leak or

emission of an air contaminant at the facility that is detected

by the voluntary use of alternative leak detection technology

from a component not subject to commission rules for leak

detection and repair in effect on the date of detection;

(2) establish the reasonable period allowed for the repair of a

component causing a leak or emission in a way that includes

consideration of the size and complexity of the repair required;

(3) subject to commission reporting requirements only those

components that are not repairable within the reasonable time

frame established by the commission; and

(4) exempt from commission enforcement a leak or emission that

is repaired within the reasonable period established by the

commission.

(e) To the extent consistent with federal requirements, the

commission may not take an enforcement action against an owner or

operator of a facility participating in the program established

under this section for a leak or an emission of an air

contaminant that would otherwise be punishable as a violation of

the law or of the terms of the permit under which the facility

operates if the leak or emission was detected by using

alternative technology and it would not have been detected under

the commission's regulatory program for leak detection and repair

in effect on the date of the detection.

Added by Acts 2007, 80th Leg., R.S., Ch.

870, Sec. 1, eff. June 15, 2007.

SUBCHAPTER J. FEDERAL GREENHOUSE GAS REPORTING RULE

Sec. 382.501. DEVELOPMENT OF FEDERAL GREENHOUSE GAS REPORTING

RULE. (a) The commission and the Railroad Commission of Texas,

the Department of Agriculture, and the Public Utility Commission

of Texas shall jointly participate in the federal government

process for developing federal greenhouse gas reporting

requirements and the federal greenhouse gas registry

requirements.

(b) The commission shall adopt rules as necessary to comply with

any federal greenhouse gas reporting requirements adopted by the

federal government for private and public facilities eligible to

participate in the federal greenhouse gas registry. In adopting

the rules, the commission shall adopt and incorporate by

reference rules implementing the federal reporting requirements

and the federal registry.

Added by Acts 2009, 81st Leg., R.S., Ch.

1125, Sec. 29, eff. September 1, 2009.

Sec. 382.502. VOLUNTARY ACTIONS INVENTORY. The commission

shall:

(1) establish an inventory of voluntary actions taken by

businesses in this state or by state agencies since September 1,

2001, to reduce carbon dioxide emissions; and

(2) work with the United States Environmental Protection Agency

to give credit for early action under any federal rules that may

be adopted for federal greenhouse gas regulation.

Added by Acts 2009, 81st Leg., R.S., Ch.

1125, Sec. 29, eff. September 1, 2009.

SUBCHAPTER K. OFFSHORE GEOLOGIC STORAGE OF CARBON DIOXIDE

Sec. 382.501. DEFINITIONS. In this subchapter:

(1) "Board" means the School Land Board.

(2) "Bureau" means the Bureau of Economic Geology at The

University of Texas at Austin.

(3) "Carbon dioxide repository" means an offshore deep

subsurface geologic repository for the storage of anthropogenic

carbon dioxide.

(4) "Land commissioner" means the commissioner of the General

Land Office.

Added by Acts 2009, 81st Leg., R.S., Ch.

1125, Sec. 1, eff. September 1, 2009.

Sec. 382.502. RULES. (a) The commission by rule may adopt

standards for the location, construction, maintenance,

monitoring, and operation of a carbon dioxide repository.

(b) If the United States Environmental Protection Agency issues

requirements regarding carbon dioxide sequestration, the

commission shall ensure that the construction, maintenance,

monitoring, and operation of the carbon dioxide repository under

this subchapter comply with those requirements.

Added by Acts 2009, 81st Leg., R.S., Ch.

1125, Sec. 1, eff. September 1, 2009.

Sec. 382.503. STUDY; SELECTION OF LOCATION. (a) The land

commissioner shall contract with the bureau to conduct a study of

state-owned offshore submerged land to identify potential

locations for a carbon dioxide repository.

(b) The land commissioner shall recommend suitable sites for

carbon dioxide storage to the board based on the findings of the

study.

locations for carbon dioxide storage.

Added by Acts 2009, 81st Leg., R.S., Ch.

1125, Sec. 1, eff. September 1, 2009.

Sec. 382.504. CONTRACT FOR NECESSARY INFRASTRUCTURE AND

OPERATION. (a) Once the location has been established for the

carbon dioxide repository, the board may issue requests for

proposals for the lease of permanent school fund land for the

construction of any necessary infrastructure for the

transportation and storage of carbon dioxide to be stored in the

carbon dioxide repository.

(b) The board may contract for construction or operational

services for the repository.

Added by Acts 2009, 81st Leg., R.S., Ch.

1125, Sec. 1, eff. September 1, 2009.

Sec. 382.505. ACCEPTANCE OF CARBON DIOXIDE FOR STORAGE; FEES AND

CARBON CREDITS. (a) Once the carbon dioxide repository is

established, the board may accept carbon dioxide for storage.

(b) The board by rule may establish a fee for the storage of

carbon dioxide in the carbon dioxide repository. If this state

participates in a program that facilitates the trading of carbon

credits, a fee under this subsection may be established as a

percentage of the carbon credits associated with the storage.

Added by Acts 2009, 81st Leg., R.S., Ch.

1125, Sec. 1, eff. September 1, 2009.

Sec. 382.506. MEASURING, MONITORING, AND VERIFICATION; ROLE OF

BUREAU. (a) The commission by rule may establish standards for

the measurement, monitoring, and verification of the permanent

storage status of the carbon dioxide in the carbon dioxide

repository.

(b) The bureau shall perform the measurement, monitoring, and

verification of the permanent storage status of carbon dioxide in

the carbon dioxide repository.

measuring, monitoring, and permanent storage status verification

of the carbon dioxide repository.

(d) The bureau shall provide to the board data relating to the

measurement, monitoring, and verification of the permanent

storage status of the carbon dioxide in the carbon dioxide

repository, as determined by the board.

Added by Acts 2009, 81st Leg., R.S., Ch.

1125, Sec. 1, eff. September 1, 2009.

Sec. 382.507. OWNERSHIP OF CARBON DIOXIDE. (a) The board shall

acquire title to carbon dioxide stored in the carbon dioxide

repository on a determination by the board that permanent storage

has been verified and that the storage location has met all

applicable state and federal requirements for closure of carbon

dioxide storage sites.

(b) The right, title, and interest in carbon dioxide acquired

under this section are the property of the permanent school fund

and shall be administered and controlled by the board.

Added by Acts 2009, 81st Leg., R.S., Ch.

1125, Sec. 1, eff. September 1, 2009.

Sec. 382.508. LIABILITY. (a) The transfer of title to the

state under Section 382.507 does not relieve a producer of carbon

dioxide of liability for any act or omission regarding the

generation of stored carbon dioxide performed before the carbon

dioxide was stored.

(b) On the date the permanent school fund, under Section

382.507, acquires the right, title, and interest in carbon

dioxide, the producer of the carbon dioxide is relieved of

liability for any act or omission regarding the carbon dioxide in

the carbon dioxide repository.

the board under Section 382.504(b) of liability for any act or

omission regarding the construction or operation, as applicable,

of the carbon dioxide repository.

Added by Acts 2009, 81st Leg., R.S., Ch.

1125, Sec. 1, eff. September 1, 2009.

Sec. 382.509. RATES FOR TRANSPORTATION. Neither the commission

nor the board may establish or regulate the rates charged for the

transportation of carbon dioxide to the carbon dioxide

repository.

Added by Acts 2009, 81st Leg., R.S., Ch.

1125, Sec. 1, eff. September 1, 2009.

Sec. 382.510. ANNUAL REPORT. The land commissioner shall issue

annually a report regarding the carbon dioxide repository. The

report may be submitted electronically by posting on the General

Land Office's Internet website. The report must include

information regarding:

(1) the total volume of carbon dioxide stored;

(2) the total volume of carbon dioxide received for storage

during the year; and

(3) the volume of carbon dioxide received from each producer of

carbon dioxide.

Added by Acts 2009, 81st Leg., R.S., Ch.

1125, Sec. 1, eff. September 1, 2009.

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2009 Texas Code HEALTH AND SAFETY CODE TITLE 5. SANITATION AND ENVIRONMENTAL QUALITY CHAPTER 382. CLEAN AIR ACT

2009 Texas Code
HEALTH AND SAFETY CODE
TITLE 5. SANITATION AND ENVIRONMENTAL QUALITY
CHAPTER 382. CLEAN AIR ACT