By: Ellis S.B. No. 1906

A BILL TO BE ENTITLED

AN ACT

relating to the regulation of toxic hotspots under the Texas Clean Air Act.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Chapter 382, Health and Safety Code, is amended by adding Subchapter I to read as follows: SUBCHAPTER I. TOXIC HOTSPOTS PILOT PROGRAM

Sec. 382.351. DEFINITIONS. In this subchapter:

(1) "Ambient air toxic standard" means the maximum allowable average ambient concentration of a priority toxic air contaminant as established under Section 382.354.

(2) "Priority toxic air contaminant" means an air contaminant listed under Section 382.353.

(3) "Toxic hotspot" means a geographic area in which modeled or monitored ambient air concentrations of one or more priority toxic air contaminants exceed ambient air toxic standards.

Sec. 382.352. DESIGNATION OF TOXIC HOTSPOTS. (a) The commission shall implement a pilot program under which the commission shall designate certain geographic areas in this state as toxic hotspots.

(b) The commission shall designate an area as a toxic hotspot or conduct modeling or monitoring of that area to determine whether the area should be designated as a toxic hotspot if:

(1) the United States Environmental Protection Agency's 1999 National-Scale Air Toxic Assessment indicates air quality in the area likely exceeds an ambient air toxic standard;

(2) the commission's point source emissions inventory data indicates air quality in the area likely exceeds an ambient air toxic standard; or

(3) the commission otherwise determines on the basis of air monitoring or modeling data that air quality in the area likely exceeds an ambient air toxic standard.

(c) In establishing the geographic boundaries of a toxic hotspot, the commission shall consider:

(1) the locations where people are exposed to ambient concentrations likely exceeding ambient air toxic standards;

(2) the locations of dense populations and of vulnerable populations, such as children and the elderly;

(3) the locations of emission sources of the relevant priority toxic air contaminant; and

(4) the meteorology, geography, and topography of the area.

(d) In setting the geographic boundaries for toxic hotspots, the commission shall make the hotspots no larger than necessary to encompass the geographic areas where the public is exposed to one or more priority toxic air contaminants at levels exceeding an ambient air toxic standard.

Sec. 382.353. PRIORITY TOXIC AIR CONTAMINANTS. (a) By December 31, 2007, the commission shall designate toxic hotspots for the following priority toxic air contaminants:

(1) benzene;

(2) 1,3-butadiene;

(3) diesel particulate matter;

(4) ethylene dichloride; and

(5) nickel.

Sec. 382.354. AMBIENT AIR TOXIC STANDARDS. (a) Except as provided by Subsection (b), the commission shall establish the following ambient air toxic standards for the priority toxic air contaminants:

(1) for benzene, an annual average concentration of not greater than .78 part per billion;

(2) for 1,3-butadiene, an annual average concentration of not greater than .3 parts per billion;

(3) for diesel particulate matter, with a diameter of 2.5 microns and smaller, an annual average concentration of not greater than 0.29 micrograms per cubic meter;

(4) for ethylene dichloride, an annual average concentration of not greater than 0.1 parts per billion; and

(5) for nickel, an annual average concentration of not greater than 0.06 micrograms per cubic meter.

(b) Notwithstanding Subsection (a), the commission may:

(1) determine that the most current scientific evidence indicates that an ambient air toxic standard established by the commission under Subsection (a) is unsuitable; and

(2) establish a different interim ambient air quality standard for that contaminant in a manner that:

(A) ensures there are not appreciable risks of non-cancer, deleterious health effects; and

(B) for a carcinogenic priority toxic air contaminant, ensures that the allowed average concentration level of the contaminant does not result in a lifetime excess cancer risk greater than one in 100,000 for a person exposed to the contaminant.

Sec. 382.357. ACHIEVEMENT OF AMBIENT AIR TOXIC STANDARDS. (a) The commission shall take cooperative actions necessary to ensure that the ambient air concentrations of priority toxic air contaminants in toxic hotspots are below the ambient air toxic standards. If cooperative actions do not produce the desired results provided by the schedules in this subchapter, the commission shall take any additional actions necessary which may include requiring:

(1) the owner or operator of an existing source to reduce emissions of the priority air contaminant;

(2) the owner or operator of a facility applying for commission approval to emit a priority air contaminant from a new source at the facility to offset the proposed emission by reducing the emission of the same contaminant from an existing source at the facility by more than the amount to be emitted by the new source; and

(3) the owner or operator of a facility to establish specific controls and best management practices to reduce the emission of a priority air contaminant.

(b) In requiring reductions from specific facilities, the commission shall consider and give credit for reductions in emissions of priority toxic air contaminants made by a facility after the effective date of this legislation pursuant to an agreement with a local government as long as the reductions are quantifiable, enforceable and in excess of any reductions otherwise required by state or federal law.

Sec. 382.358. SCHEDULE FOR ACHIEVING AMBIENT AIR TOXIC STANDARDS. The commission shall categorize each toxic hotspot to which this subsection applies as high priority, medium priority, or low priority. The commission shall designate at least one-third of the toxic hotspots as high priority, and at least one-half of the remaining toxic hotspots as medium priority. The commission shall ensure that the ambient air toxic standards for the toxic hotspots are achieved according to the following schedule:

(1) for a high priority toxic hotspot, not later than September 1, 2010;

(2) for a medium priority toxic hotspot, not later than September 1, 2012; and

(3) for a low priority toxic hotspot, not later than September 1, 2014.

Sec. 382.360. PUBLIC ACCESS AND COMMENT. (a) The commission shall maintain on the commission's Internet website:

(1) a list of priority toxic air contaminants and their associated ambient air toxic standards;

(2) a list of each toxic hotspot in this state; and

(3) a list of the deadlines established by the commission under Section 382.358 for the attainment of ambient air toxic standards in each toxic hotspot.

(b) The commission shall establish procedures for members of the public to receive notice of and an opportunity to comment on an action taken by the commission concerning:

(1) the designation of toxic hotspots for each priority toxic air contaminant;

(2) the removal of an area's designation as a toxic hotspot; or

(3) the establishment of or a change to a high, medium, or low priority designation of a toxic hotspot.

(c) The commission must provide a public comment period of at least 30 days before the commission establishes or amends an ambient air toxic standard pursuant to 382.354(b). When the commission publishes notice of a proposed amendment to a standard, justification for the amendment must be included.

(d) The commission's internet website must describe the procedures that a member of the public may follow to receive notice, provide comments, petition for designation of an area as a toxic hotspot, or otherwise participate in the pilot toxic hotspots program under this subchapter.

Sec. 382.361. REPORTS TO THE LEGISLATURE. (a) The commission shall include in its annual enforcement reports each year through 2014 information regarding its progress under the pilot toxic hotspots program. Such information shall include the hotspots designated for each priority toxic air contaminant, the steps taken to attain the ambient air toxic standards in each hotspot, and the progress made in attaining such standards.

(b) By December 2009, the commission shall report to the Legislature regarding the following:

(1) the areas of the state that would fail to meet ambient air toxic standards which were set to ensure a lifetime excess cancer risk no greater than one in one million a for each of the priority toxic air contaminants;

(2) the areas of the state for which that failure would be due to emissions from sources outside the commission's jurisdiction; and

(3) an estimate of the time the commission would need to ensure that no areas in the state have ambient concentrations of priority toxic air contaminants which create a lifetime excess cancer risk greater than on in one million. SUBCHAPTER J. EXPANDED TOXIC HOTSPOT PROGRAM.

Sec. 382.362. RULEMAKING. By December 2011, the commission shall adopt rules expanding the toxic hotspot pilot program.

Sec. 382.363. PRIORITY TOXIC AIR CONTAMINANTS. The rules shall include procedures and a public process for listing priority toxic air contaminants in addition to those listed in Section 382.353. These additional priority toxic air contaminants shall include: chromium VI, ethylene dibromide, accrylonitrile, acrolein, chlorine, and hexamethylene diisocyanate.

Sec. 382.364. AMBIENT AIR TOXIC STANDARDS. (a) The rules shall include procedures and a public process for setting ambient air toxic standards for priority toxic air contaminants at levels that do not result in appreciable risks of deleterious health effects.

(b) For each priority toxic air contaminant that is a carcinogen, the commission shall establish:

(1) an ambient air toxic standard, applicable until December 31, 2015, that ensures the allowed average concentration of the contaminant does not result in a lifetime excess cancer risk greater than one in 100,000 for a person exposed; and

(2) a ambient air toxic standard, applicable on and after January 1, 2016, except as specified in Section 382.364(c), that ensures the allowed average concentration of the contaminant does not result in a lifetime excess cancer risk greater than one in 1,000,000 for a person exposed.

(c) After December 31, 2015, the commission may continue to utilize an ambient air toxic standard as specified in Section 382.364(b)(1) as long as the commission demonstrates that emissions of the relevant priority toxic air contaminant from sources outside the commission's jurisdiction prevent attainment of a standard as specified in Section 382.364(b)(2).

Sec. 382.365. TOXIC HOTSPOTS. The rules shall include procedures and a public process for designating as toxic hotspots areas that exceed one or more of the ambient air toxic standards.

Sec. 382.366. ACHIEVEMENT OF AMBIENT AIR TOXIC STANDARDS. (a) The rules shall include procedures and a public process for developing plans, source-specific requirements, and deadlines for bringing all toxic hotspots into compliance with applicable ambient air toxic standards.

(b) Such plans may include tightening emission limits in existing permits for priority toxic air contaminants, requiring offsets for new emissions of priority toxic air contaminants at amounts greater than the amount to be emitted by the new source, and requiring specific controls or best management practices to reduce emissions of priority toxic air contaminants.

SECTION 2. This Act takes effect September 1, 2007.