By: Moreno of Harris H.B. No. 2792
A BILL TO BE ENTITLED
AN ACT
relating to monitoring and controlling emissions of air
contaminants under the Texas Clean Air Act; providing a penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter B, Chapter 382, Health and Safety
Code, is amended by adding Sections 382.0161, 382.042, and 382.043
to read as follows:
Sec. 382.0161. MONITORING REQUIREMENTS FOR MAJOR SOURCES.
(a) In this section, "major source" has the meaning assigned by
Title V of the federal Clean Air Act (42 U.S.C. Section 7661).
(b) In addition to other monitoring requirements under this
chapter, the commission by rule shall require the owner or operator
of a major source to:
(1) provide for daily fence-line monitoring of the
emission of air contaminants from the major source; and
(2) make and maintain records on the measuring and
monitoring of the emissions.
(c) In providing for the daily fence-line monitoring of
emissions as required by this section, the owner or operator of the
major source must:
(1) provide for at least two monitors with each of the
monitors placed on opposite sides of the source;
(2) provide for a sufficient number of monitors so
that the maximum distance measured along the fence-line between
each monitor is one-eighth of a mile; and
(3) place the monitors in such a way that the monitors
are evenly spaced.
(d) The owner or operator of a major source shall designate
an independent consultant approved by the commission to certify to
the commission that the major source is in compliance with this
section. A member, employee, or agent of the commission may examine
during regular business hours the monitoring equipment or any
records or memoranda relating to the monitoring equipment required
under this section.
(e) The commission by rule shall require the owner or
operator of a major source to submit for the executive director's
approval a list of the air contaminants that the owner or operator
will monitor under this section. To be eligible for approval, the
list must include:
(1) each hazardous air pollutant listed under 42
U.S.C. Section 7412 of the federal Clean Air Act that is applicable
to the major source; and
(2) any other air contaminant that either the
executive director or municipal or county air pollution control
agency requests that the owner or operator monitor.
(f) The commission may adopt rules allowing for the owner or
operator of a major source to request an exemption from the
fence-line monitoring requirements of this section. To be eligible
for an exemption, the owner or operator must submit to the executive
director for approval an alternative monitoring plan that
demonstrates continuous or semi-continuous monitoring of each
stack, vent, flare, cooling tower, or other device for which
technologically feasible monitoring devices are available. The
owner or operator shall review the plan at least once every five
years to identify additional monitoring opportunities based on new
technology and submit proposed changes to the executive director
for approval.
Sec. 382.042. EFFECTS SCREENING LEVELS. (a) The
commission by rule shall adopt effects screening levels for air
contaminants. Each effects screening level must:
(1) be set in a manner that takes into consideration
all acute and chronic health effects on a person due to exposure to
an air contaminant;
(2) be based in part on the health effects of:
(A) the one-hour, eight-hour, or 24-hour
exposure of a person to the air contaminant at the fence-line of an
emission source; and
(B) the lifetime exposure of a person to the air
contaminant at the fence-line of an emission source; and
(3) be set at a level that does not increase the risk
of cancer in a person exposed to the air contaminant by greater than
one chance in one million.
(b) Not later than January 1, 2006, the commission shall
assemble a panel of independent, nationally recognized experts in
the fields of toxicology, epidemiology, medicine, and public heath
to review the commission's effects screening levels and to
recommend standards to the commission that comply with the
requirements of Subsection (a). The panel shall consider the
effects screening levels, methods, and programs of other states as
part of the review. The panel must provide opportunities for public
comment in conducting the review. The panel shall make
recommendations to the commission regarding the commission's
effects screening levels, methods, and programs not later than July
1, 2007. Not later than October 1, 2007, the commission shall adopt
effects screening levels as required under Subsection (a) that take
into consideration the panel's recommendations. The owner or
operator of an emission source must comply with the effects
screening levels set by the commission under this section not later
than January 1, 2009. This subsection expires September 1, 2009.
(c) Upon the effective date of this Act, the Texas Effects
Screening Levels currently used by the Texas Commission on
Environmental Quality for permit review purposes are adopted as
interim standards for use as required by Section 382.085.
Sec. 382.043. SANCTIONS; REPORT. (a) A person may not
cause, suffer, allow, or permit the emission of any air contaminant
or the performance of any activity that causes an effects screening
level set by the commission to be exceeded. The commission by rule
shall establish requirements for the assessment of a penalty or the
imposition of an injunction against a person who violates this
section.
(b) The commission shall annually publish a report that
lists each violation of this section. The report must include any
instance in which the commission suspected a violation but later
determined that the evidence was not sufficient or credible enough
to amount to a violation of this section.
SECTION 2. Section 382.085, Health and Safety Code, is
amended by amending Subsection (a) and adding Subsections (c) and
(d) to read as follows:
(a) 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, either in
isolation or in conjunction with air contaminants from other
sources, a condition of air pollution.
(c) For purposes of this section, a condition of air
pollution is considered to exist if credible evidence demonstrates
an unacceptable risk of health effects due to air pollution as
determined by:
(1) a measured level of an air contaminant in excess of
an effects screening level for the air contaminant for a relevant
period as provided by commission rule;
(2) a measured level of multiple air contaminants that
in conjunction with one another increase the risk of cancer in a
person exposed to the air contaminants by greater than one chance in
one million;
(3) a measured level of multiple air contaminants that
are associated with the same chronic health condition and that in
conjunction with one another are likely to result in a greater risk
to an exposed person's health than would one of the contaminants in
isolation if measured at the relevant effects screening level for
the contaminant; or
(4) any other evidence that is of sufficient value and
credibility to demonstrate an injurous or adverse affect to human
health or welfare, animal life, vegetation, or property, or as to
interfere with the normal use and enjoyment of animal life,
vegetation, or property.
(d) If the commission brings an action for a violation of
this section, the burden is on the owner or operator of the facility
or source, through certification by a responsible official, to
demonstrate to the commission that the facility or source:
(1) is in compliance with all technological
requirements applicable to the facility or source;
(2) is in compliance with all monitoring requirements
applicable to the facility or source; and
(3) is aware of no evidence that demonstrates that the
facility or source has caused or contributed to air pollution in
violation of this section.
SECTION 3. (a) Not later than January 1, 2006 the Texas
Commission on Environmental Quality shall adopt requirements for
the assessment of penalties or the imposition of injunctions
against a person who exceeds the interim standards as required by
Section 382.042(c), as added by this Act.
(b) Not later than March 1, 2006, the Texas Commission on
Environmental Quality shall publish an annual report listing
violations of effects screening levels as required by Section
382.043, Health and Safety Code, as added by this Act.
(c) Not later than September 1, 2006, the owner or operator
of a major source must provide for the fence-line monitoring of air
contaminants as required by Section 382.0161, Health and Safety
Code, as added by this Act.
(d) Not later than October 1, 2007, the Texas Commission on
Environmental Quality shall adopt new health effects screening
levels as established by Section 382.042, Health and Safety Code,
as added by this Act.
(e) Section 382.085, Health and Safety Code, as amended by
this Act, applies only to a violation of Section 382.085, Health and
Safety Code, that occurs on or after the effective date of this Act.
A violation of Section 382.085, Health and Safety Code, that occurs
before the effective date of this Act is governed by the law in
effect when the violation occurred, and the current law is
continued in effect for that purpose.
(f) Section 382.043, Health and Safety Code, as added by
this Act, applies to any violation of an effects screening level set
by the commission that occurs on or after the effective date of this
Act. A violation of an effects screening level that occurs before
the effective date of this Act is governed by the law in effect when
the violation occurs, and the current law is continued in effect for
that purpose.
SECTION 4. This Act takes effect September 1, 2005.