77R11659 SMH-F
By West H.B. No. 128
Substitute the following for H.B. No. 128:
By Uher C.S.H.B. No. 128
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the protection of air-quality-related values of certain
1-3 federal lands.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subchapter C, Chapter 382, Health and Safety Code,
1-6 is amended by adding Section 382.0565 to read as follows:
1-7 Sec. 382.0565. PROTECTION OF AIR-QUALITY-RELATED VALUES. (a)
1-8 In this section:
1-9 (1) "Air pollutant" means an air pollutant regulated
1-10 by the administrator under the federal Clean Air Act (42 U.S.C.
1-11 Section 7401 et seq.) and its subsequent amendments.
1-12 (2) "Air-quality-related value" means a feature or
1-13 property, including visibility, flora, fauna, a geologic feature,
1-14 or a cultural resource, of an area that may be affected by air
1-15 pollution.
1-16 (3) "Class I area" means an area of land designated as
1-17 class I under Section 162, federal Clean Air Act (42 U.S.C. Section
1-18 7472), and its subsequent amendments or redesignated as class I
1-19 under Section 164, federal Clean Air Act (42 U.S.C. Section 7474),
1-20 and its subsequent amendments.
1-21 (4) "Federal land manager" has the meaning assigned by
1-22 Section 302, federal Clean Air Act (42 U.S.C. Section 7602), and
1-23 its subsequent amendments.
1-24 (5) "Major emitting facility" has the meaning assigned
2-1 by Section 169, federal Clean Air Act (42 U.S.C. Section 7479), and
2-2 its subsequent amendments.
2-3 (6) "Scientifically reliable evidence" means evidence
2-4 that:
2-5 (A) is shown by a methodology that is generally
2-6 accepted within the relevant scientific community;
2-7 (B) has been subjected to peer review and
2-8 publication;
2-9 (C) is capable of being and has been tested;
2-10 (D) is subject to established control standards
2-11 of performance; and
2-12 (E) has a known or potential rate of error that
2-13 is within a range acceptable to the relevant scientific community.
2-14 (7) "Significant," with respect to the potential of a
2-15 major emitting facility to emit an air pollutant or with respect to
2-16 the net increase in emissions of an air pollutant that may result
2-17 from a major modification of an existing facility, has the meaning
2-18 assigned by 40 C.F.R. Section 52.21(b) and its subsequent
2-19 amendments.
2-20 (b) This section applies only to:
2-21 (1) a proposed major emitting facility that has the
2-22 potential to emit an air pollutant in a significant amount; or
2-23 (2) a proposed major modification of an existing
2-24 facility that may result in a significant net increase in emissions
2-25 of an air pollutant.
2-26 (c) Notwithstanding Section 382.0517, the commission may not
2-27 substitute publication of notice of a determination that an
3-1 application filed under Section 382.054 or 382.0518 is
3-2 administratively complete for mailing of the notice to a federal
3-3 land manager. The commission shall accommodate reasonable requests
3-4 from a federal land manager to be apprised of the status of the
3-5 commission's review of a permit application.
3-6 (d) The commission shall represent the state for the purpose
3-7 of assessing a demonstration filed by a federal land manager under
3-8 Section 165(d)(2)(C)(ii), federal Clean Air Act (42 U.S.C. Section
3-9 7475), and its subsequent amendments alleging that the emissions
3-10 from a proposed major emitting facility or a major modification of
3-11 an existing facility will have an adverse impact on the
3-12 air-quality-related values of a class I area.
3-13 (e) The federal land manager must file the demonstration
3-14 with the commission not later than the 60th day after the date the
3-15 administrator provides the federal land manager notice of a permit
3-16 application relating to the proposed major emitting facility or
3-17 major modification.
3-18 (f) The commission may concur in the demonstration only if:
3-19 (1) the area is designated as class I under Section
3-20 162, federal Clean Air Act (42 U.S.C. Section 7472), and its
3-21 subsequent amendments and the demonstration establishes by a
3-22 preponderance of the evidence that emissions of a specific air
3-23 pollutant from the proposed major emitting facility or major
3-24 modification will result in an adverse impact on a specific
3-25 air-quality-related value that was fundamental to the purpose for
3-26 which the area was established and preserved by the United States
3-27 Congress;
4-1 (2) the area is redesignated as class I under Section
4-2 164, federal Clean Air Act (42 U.S.C. Section 7474), and its
4-3 subsequent amendments and the demonstration establishes by a
4-4 preponderance of the evidence that emissions of a specific air
4-5 pollutant from the proposed major emitting facility or major
4-6 modification will result in an adverse impact on a specific
4-7 air-quality-related value that was an important attribute in the
4-8 decision to redesignate the area as class I; or
4-9 (3) the area is a class I area and the demonstration
4-10 relies on scientifically reliable evidence that concentrations of a
4-11 specific air pollutant that are likely to occur as a result of
4-12 emissions into the ambient air from the proposed major emitting
4-13 facility or major modification will result in an adverse impact on
4-14 a specific air-quality-related value of the area.
4-15 (g) The commission shall determine whether to concur in the
4-16 demonstration not later than the 60th day after the date of receipt
4-17 of the demonstration. The commission shall concur in the
4-18 demonstration if the demonstration concerns a major emitting
4-19 facility proposed to be located within 100 kilometers of a class I
4-20 area and there is no scientifically reliable evidence contradicting
4-21 the demonstration. The commission shall notify the federal land
4-22 manager and the owner or operator of the major emitting facility of
4-23 the determination not later than the 10th day after the date the
4-24 determination is made.
4-25 (h) If the commission determines that the proposed major
4-26 emitting facility or major modification will have an adverse impact
4-27 on an air-quality-related value of a class I area, the commission
5-1 may not issue a permit relating to the proposed major emitting
5-2 facility or major modification unless the owner or operator of the
5-3 facility demonstrates to the commission that it has mitigated that
5-4 adverse impact by obtaining enforceable and permanent emissions
5-5 reductions to offset the adverse impact. The owner or operator has
5-6 the burden of establishing the sufficiency of the mitigation by
5-7 scientifically reliable evidence.
5-8 SECTION 2. This Act takes effect immediately if it receives a
5-9 vote of two-thirds of all the members elected to each house, as
5-10 provided by Section 39, Article III, Texas Constitution. If this
5-11 Act does not receive the vote necessary for immediate effect, this
5-12 Act takes effect September 1, 2001.