CHAPTER 391. NEW TECHNOLOGY IMPLEMENTATION FOR FACILITIES AND STATIONARY SOURCES
HEALTH AND SAFETY CODE
TITLE 5. SANITATION AND ENVIRONMENTAL QUALITY
SUBTITLE C. AIR QUALITY
CHAPTER 391. NEW TECHNOLOGY IMPLEMENTATION FOR FACILITIES AND
STATIONARY SOURCES
Chapter 391, consisting of Secs. 391.001 to 391.304, was added by
Acts 2009, 81st Leg., R.S., Ch.
1125, Sec. 9.
For another Chapter 391, consisting of Secs. 391.001 to 391.008,
added by Acts 2009, 81st Leg., R.S., Ch.
1232, Sec. 5, see Sec. 391.001 et seq., post.
For expiration of this chapter, see Section 391.304.
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 391.001. DEFINITIONS. In this chapter:
(1) "Best available control technology" has the meaning assigned
by Section 169 of the federal Clean Air Act (42 U.S.C. Section
7479(3)).
(2) "Commission" means the Texas Commission on Environmental
Quality.
(3) "Facility" has the meaning assigned by Section 382.003.
(4) "Incremental cost" has the meaning assigned by Section
386.001.
(5) "New technology" means emissions control technology that
results in emissions reductions that exceed state or federal
requirements in effect at the time of submission of a new
technology implementation grant application.
(6) "Stationary source" has the meaning assigned by Section 302
of the federal Clean Air Act (42 U.S.C. Section 7602(z)).
Added by Acts 2009, 81st Leg., R.S., Ch.
1125, Sec. 9, eff. September 1, 2009.
Sec. 391.002. GRANT PROGRAM. (a) The commission shall
establish and administer a new technology implementation grant
program to assist the implementation of new technologies to
reduce emissions from facilities and other stationary sources in
this state. Under the program, the commission shall provide
grants or other financial incentives for eligible projects to
offset the incremental cost of emissions reductions.
(b) Projects that may be considered for a grant under the
program include:
(1) advanced clean energy projects, as defined by Section
382.003;
(2) new technology projects that reduce emissions of regulated
pollutants from point sources and involve capital expenditures
that exceed $500 million; and
(3) electricity storage projects related to renewable energy.
Added by Acts 2009, 81st Leg., R.S., Ch.
1125, Sec. 9, eff. September 1, 2009.
Sec. 391.003. GUIDELINES AND CRITERIA. (a) The commission
shall adopt grant guidelines and criteria consistent with the
requirements of this chapter.
(b) The guidelines must include:
(1) protocols to compute projected emissions reductions and
project cost-effectiveness; and
(2) safeguards to ensure that the projects funded result in
emissions reductions not otherwise required by state or federal
law.
(c) The commission may propose revisions to the guidelines and
criteria adopted under this section as necessary to improve the
ability of the program to achieve the program goals.
(d) The commission may adopt emergency rules under Section
2001.034, Government Code, with abbreviated notice, to carry out
any rulemaking necessary to implement this chapter.
(e) Except as provided by Subsection (d), the rulemaking
requirements of Chapter 2001, Government Code, do not apply to
the adoption or revision of guidelines and criteria under this
section.
Added by Acts 2009, 81st Leg., R.S., Ch.
1125, Sec. 9, eff. September 1, 2009.
Sec. 391.004. AVAILABILITY OF EMISSIONS REDUCTION CREDITS IN
CERTAIN NONATTAINMENT AREAS. A project funded under this chapter
must comply with Sections 386.055 and 386.056, as applicable.
Added by Acts 2009, 81st Leg., R.S., Ch.
1125, Sec. 9, eff. September 1, 2009.
SUBCHAPTER B. GRANT APPLICATIONS AND REVIEW
Sec. 391.101. APPLICATION FOR GRANT. (a) The owner of a
facility located in this state may apply for a grant under the
program established under Section 391.002. To improve the
ability of the program to achieve the program goals, the
commission may adopt guidelines to allow a person other than the
owner to apply for and receive a grant.
(b) An application for a grant under this chapter must be made
on a form provided by the commission and must contain information
required by the commission, including:
(1) a detailed description of the proposed project;
(2) information necessary for the commission to determine
whether the project meets the commission's eligibility
requirements, including a statement of the amounts of any other
public financial assistance the project will receive; and
(3) other information the commission may require.
(c) An application for a grant under this chapter must contain a
plan for implementation of a program that will provide project
information and education to the public in the areas subject to
public notice under federal and state permitting requirements for
the proposed project until completion of the permitting process.
The plan must provide for a publicly accessible informational
Internet website.
Added by Acts 2009, 81st Leg., R.S., Ch.
1125, Sec. 9, eff. September 1, 2009.
Sec. 391.102. GRANT APPLICATION REVIEW PROCEDURES. (a) The
commission shall review an application for a grant for a project
authorized under this chapter according to dates specified in a
request for grant applications. If the commission determines
that an application is incomplete, the commission shall notify
the applicant and provide an explanation of the information
missing from the application. The commission shall evaluate the
completed application according to the guidelines and criteria
adopted under Section 391.003.
(b) To the extent possible, the commission shall coordinate
project review and approval with any timing constraints related
to project purchases or installations to be made by an applicant.
(c) The commission may deny a grant application for a project
that does not meet the applicable criteria or that the commission
determines is not made in good faith, is not credible, or is not
in compliance with this chapter or the goals of this chapter.
(d) Subject to the availability of funding, the commission shall
award a grant under this chapter in conjunction with the
execution of a contract that obligates the commission to make the
grant and the recipient to perform the actions described by the
recipient's grant application. Subject to Section 391.204, the
contract must incorporate provisions for recapturing grant money
for noncompliance with grant requirements. Grant money
recaptured under the contract provisions shall be deposited in
the Texas emissions reduction plan fund and reallocated for other
projects under this subchapter.
(e) An applicant may seek reimbursement for qualifying equipment
installed after the effective date of this program.
(f) In coordinating interagency application review procedures,
the commission shall:
(1) solicit review and comments from:
(A) the comptroller to assess:
(i) the financial stability of the applicant;
(ii) the economic benefits and job creation potential associated
with the project; and
(iii) any other information related to the duties of that
office;
(B) the Public Utility Commission of Texas to assess:
(i) the reliability of the proposed technology;
(ii) the feasibility and cost-effectiveness of electric
transmission associated with the project; and
(iii) any other information related to the duties of that
agency; and
(C) the Railroad Commission of Texas to assess:
(i) the availability and cost of the fuel involved with the
project; and
(ii) any other information related to the duties of that agency;
(2) consider the comments received under Subdivision (1) in the
commission's grant award decision process; and
(3) as part of the report required by Section 391.104, justify
awards made to projects that have been negatively reviewed by
agencies under Subdivision (1).
(g) The commission may solicit review and comments from other
state agencies or other entities with subject matter expertise
applicable to the review of a grant application.
Added by Acts 2009, 81st Leg., R.S., Ch.
1125, Sec. 9, eff. September 1, 2009.
Sec. 391.103. EVIDENCE OF EMISSIONS REDUCTION POTENTIAL
REQUIRED. (a) An application for a new technology
implementation grant under this chapter must show reasonable
evidence that the proposed technology is capable of providing a
significant reduction in emissions.
(b) The commission shall consider specifically, for each
proposed new technology implementation grant application:
(1) the projected potential for reduced emissions and the
cost-effectiveness of the new technology;
(2) the potential for the new technology to contribute
significantly to air quality goals; and
(3) the strength of the implementation plan.
Added by Acts 2009, 81st Leg., R.S., Ch.
1125, Sec. 9, eff. September 1, 2009.
Sec. 391.104. REPORTING REQUIREMENTS. The commission annually
shall prepare a report that summarizes the applications received
and grants awarded in the preceding year. Preparation of the
report must include the participation of the state agencies
involved in the review of applications under Section 391.102.
Added by Acts 2009, 81st Leg., R.S., Ch.
1125, Sec. 9, eff. September 1, 2009.
SUBCHAPTER C. PROJECT REQUIREMENTS
Sec. 391.201. ELIGIBILITY OF PROJECTS FOR GRANTS. (a) The
commission shall establish criteria for prioritizing projects
eligible to receive grants under this chapter. The commission
shall review and may modify the criteria and priorities as
appropriate.
(b) A proposed project must meet the requirements of this
section to be eligible for a grant under the program established
under Section 391.002.
(c) Each proposed project must meet the cost-effectiveness
requirements established by the commission.
(d) A new technology implementation project must document, in a
manner acceptable to the commission, an achieved reduction from
the baseline emissions adopted by the commission for the relevant
facility or stationary source. After studying available
emissions reduction technologies, the commission may impose a
required minimum percentage reduction of emissions to improve the
ability of the program to achieve the program goals.
(e) If a baseline emissions standard does not exist for a
facility, the commission, for purposes of this subchapter, shall
adopt an appropriate baseline emissions level for comparison
purposes.
(f) Planned water usage for proposed projects must be consistent
with the state water plan.
Added by Acts 2009, 81st Leg., R.S., Ch.
1125, Sec. 9, eff. September 1, 2009.
Sec. 391.202. EVALUATING COST-EFFECTIVENESS. The commission
shall establish reasonable methodologies for evaluating project
cost-effectiveness, consistent with accepted methods.
Added by Acts 2009, 81st Leg., R.S., Ch.
1125, Sec. 9, eff. September 1, 2009.
Sec. 391.203. DETERMINATION OF GRANT AMOUNT. (a) The
commission may not award a grant that, net of taxes, provides an
amount that exceeds the incremental cost of the proposed project.
(b) In determining the amount of a grant under this subchapter,
the commission shall reduce the incremental cost of a proposed
project by the value of any existing financial incentive that
directly reduces the cost of the proposed project, including tax
credits or deductions, other grants, or any other public
financial assistance.
Added by Acts 2009, 81st Leg., R.S., Ch.
1125, Sec. 9, eff. September 1, 2009.
Sec. 391.204. COST SHARING; RECAPTURING GRANT. (a) The
commission shall require an applicant to bear at least 50 percent
of the costs of implementing a project funded under this chapter.
(b) The commission may not require repayment of grant money,
except that the commission must require provisions for
recapturing grant money for noncompliance with grant
requirements.
Added by Acts 2009, 81st Leg., R.S., Ch.
1125, Sec. 9, eff. September 1, 2009.
Sec. 391.205. PREFERENCES. (a) Except as provided by
Subsection (c), in awarding grants under this chapter the
commission shall give preference to projects that:
(1) use natural resources originating or produced in this state;
(2) contain an energy efficiency component; or
(3) include the use of solar, wind, or other renewable energy
sources.
(b) Projects that include more than one of the criteria
described by Subsection (a) shall be given a greater preference
in the award of grants under this chapter.
(c) The commission may give preference under Subsection (a) only
if the cost-effectiveness and emission performance of the project
are comparable to those of a project not claiming a preference
described by that subsection.
Added by Acts 2009, 81st Leg., R.S., Ch.
1125, Sec. 9, eff. September 1, 2009.
SUBCHAPTER D. FUNDING; EXPIRATION
Sec. 391.301. RESTRICTION ON USE OF GRANT. A recipient of a
grant under this chapter must use the grant to pay the
incremental costs of the purchase and installation of the project
for which the grant is made, which may include reasonable and
necessary expenses for the labor needed to install
emissions-reducing equipment. The recipient may not use the
grant for the costs of operating and maintaining the
emissions-reducing equipment.
Added by Acts 2009, 81st Leg., R.S., Ch.
1125, Sec. 9, eff. September 1, 2009.
Sec. 391.302. COMPTROLLER REVIEW OF USE OF GRANT FUNDS. (a)
The comptroller annually shall conduct a review of each recipient
of a new technology implementation grant under this chapter to
ensure that the recipient's use of the grant complies with state
law and the terms of the award.
(b) To assist with a review under this section, the commission
shall provide the comptroller with all monitoring reports
received from grant recipients and any other documentation
requested by the comptroller.
(c) On a finding of any misuse of grant money or other
noncompliance with grant requirements, the comptroller shall
provide a report to the commission with recommendations for
subsequent action, including the recapture of money misused.
(d) A finding of any misuse of grant money by a recipient of a
grant under this chapter results in a debt owed to the state, and
the comptroller may withhold warrants and electronic funds
transfers to the recipient in accordance with Section 403.055,
Government Code.
(e) The comptroller may contract with another state agency, an
institution of higher education, or a private entity to conduct a
review under this section or to assist the comptroller in
conducting any part of the review.
(f) The comptroller may adopt rules to implement this section.
Added by Acts 2009, 81st Leg., R.S., Ch.
1125, Sec. 9, eff. September 1, 2009.
Sec. 391.303. TIME OF USE OF GRANT FUNDING. Money appropriated
for grants to be made by the commission under this chapter for a
fiscal year may be distributed in subsequent fiscal years if the
grant has been awarded and treated as a binding encumbrance by
the commission before the end of the appropriation year of the
money appropriated for grant purposes. Distribution of the grant
money is subject to Section 403.071, Government Code.
Added by Acts 2009, 81st Leg., R.S., Ch.
1125, Sec. 9, eff. September 1, 2009.
Sec. 391.304. EXPIRATION. This chapter expires August 31, 2019.
Added by Acts 2009, 81st Leg., R.S., Ch.
1125, Sec. 9, eff. September 1, 2009.