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H.B. No. 3732

H.B. No. 3732

AN ACT Relating to the implementation of advanced clean energy projects
and other environmentally protective projects in this state.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 447, Government Code, is amended by
adding Section 447.013 to read as follows:
Sec. 447.013. ADVANCED CLEAN ENERGY PROJECT GRANT AND LOAN
PROGRAM. (a) In this section:
(1) “Account” means the advanced clean energy project
account established under this section.
(2) “Advanced clean energy project” has the meaning
assigned by Section 382.003, Health and Safety Code.
(3) “Program” means the advanced clean energy project
grant and loan program established under this section.
(b) The advanced clean energy project grant and loan program
is established to encourage the development of advanced clean
energy projects in an environmentally protective manner. The
program is administered by the State Energy Conservation Office.
(c) The advanced clean energy project account is an account
in the general revenue fund.
(d) The account consists of:
(1) a sub-account in the account that consists of the
proceeds of bonds issued under Subsection (j);
(2) revenues allocated to the account under Section
182.122, Tax Code;
(3) any amount appropriated by the legislature for the
account;
(4) gifts, grants, and other donations received for
the account; and
(5) interest earned on the investment of money in the
account.
(e) Money in the account may be appropriated only to the
State Energy Conservation Office to award grants or to make or
guarantee loans under this section. The total amount of grants that
may be awarded under this section in any state fiscal biennium from
revenues described by Subsection (d)(2) may not exceed $20 million.
The total amount of loans that may be made or guaranteed under this
section in any state fiscal biennium from revenues described by
Subsection (d)(2) may not exceed $10 million.
(f) Before awarding a grant or making a loan under this
section, the State Energy Conservation Office shall enter into a
written agreement with the entity to which the grant is to be
awarded or the loan is to be made. The agreement may specify that
if, as of a date specified by the agreement, the entity has not used
the grant or loan for the purposes for which the grant or loan was
intended, the entity shall repay the amount of the grant or the
amount of the loan and any accrued interest, as applicable, under
terms specified by the agreement.
(g) Under the program, the State Energy Conservation Office
may award a grant to the managing entity of an advanced clean energy
project in an amount not to exceed 50 percent of the total amount
invested in the project by private industry sources. The managing
entity of the project must provide any information considered
necessary by the State Energy Conservation Office to determine
whether the entity qualifies for the grant.
(h) Under the program, the State Energy Conservation Office
may make or guarantee a loan to the managing entity of an advanced
clean energy project in this state. If the loan or guarantee is to
be funded by the proceeds of bonds issued under Subsection (j), the
project must qualify for the loan or guarantee under Section 49-q,
Article III, Texas Constitution.
(i) A recipient of a grant or loan under this section is
encouraged to purchase goods and services from small businesses and
historically underutilized businesses, as those terms are defined
by Section 481.191, Government Code.
(j) The Texas Public Finance Authority shall issue general
obligation bonds in accordance with and subject to Chapter 1232,
Government Code, for the purposes authorized by Section 49-q,
Article III, Texas Constitution.
SECTION 2. Section 382.003, Health and Safety Code, is
amended by adding Subdivisions (1-a), (3-a), (7-a), and (11-a) to
read as follows:
(1-a) “Advanced clean energy project” means a project
for which an application for a 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;
(B) is capable of achieving on an annual basis a
99 percent or greater reduction of sulfur dioxide emissions, a 95
percent or greater reduction of mercury emissions, and an emission
rate for nitrogen oxides of 0.05 pounds or less per million British
thermal units; and
(C) renders carbon dioxide capable of capture,
sequestration, or abatement if any carbon dioxide is produced by
the project.
(3-a) “Coal” has the meaning assigned by Section
134.004, Natural Resources Code.
(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.
(11-a) “Solid waste” has the meaning assigned by
Section 361.003.
SECTION 3. Subchapter C, Chapter 382, Health and Safety
Code, is amended by adding Sections 382.0566 and 382.0567 to read as
follows:
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.
(c) The permit process authorized by this section is 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, as applicable.
(d) The commission shall adopt rules to implement this
section.
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.
SECTION 4. Section 11.31, Tax Code, is amended by adding
Subsections (k), (l), and (m) to read as follows:
(k) The Texas Commission on Environmental Quality shall
adopt rules establishing a nonexclusive list of facilities,
devices, or methods for the control of air, water, or land
pollution, which must include:
(1) coal cleaning or refining facilities;
(2) atmospheric or pressurized and bubbling or
circulating fluidized bed combustion systems and gasification
fluidized bed combustion combined cycle systems;
(3) ultra-supercritical pulverized coal boilers;
(4) flue gas recirculation components;
(5) syngas purification systems and gas-cleanup
units;
(6) enhanced heat recovery systems;
(7) exhaust heat recovery boilers;
(8) heat recovery steam generators;
(9) superheaters and evaporators;
(10) enhanced steam turbine systems;
(11) methanation;
(12) coal combustion or gasification byproduct and
coproduct handling, storage, or treatment facilities;
(13) biomass cofiring storage, distribution, and
firing systems;
(14) coal cleaning or drying processes, such as coal
drying/moisture reduction, air jigging, precombustion
decarbonization, and coal flow balancing technology;
(15) oxy-fuel combustion technology, amine or chilled
ammonia scrubbing, fuel or emission conversion through the use of
catalysts, enhanced scrubbing technology, modified combustion
technology such as chemical looping, and cryogenic technology;
(16) if the United States Environmental Protection
Agency adopts a final rule or regulation regulating carbon dioxide
as a pollutant, property that is used, constructed, acquired, or
installed wholly or partly to capture carbon dioxide from an
anthropogenic source in this state that is geologically sequestered
in this state;
(17) fuel cells generating electricity using hydrogen
derived from coal, biomass, petroleum coke, or solid waste; and
(18) any other equipment designed to prevent, capture,
abate, or monitor nitrogen oxides, volatile organic compounds,
particulate matter, mercury, carbon monoxide, or any criteria
pollutant.
(l) The Texas Commission on Environmental Quality by rule
shall update the list adopted under Subsection (k) at least once
every three years. An item may be removed from the list if the
commission finds compelling evidence to support the conclusion that
the item does not provide pollution control benefits.
(m) Notwithstanding the other provisions of this section,
if the facility, device, or method for the control of air, water, or
land pollution described in an application for an exemption under
this section is a facility, device, or method included on the list
adopted under Subsection (k), the executive director of the Texas
Commission on Environmental Quality, not later than the 30th day
after the date of receipt of the information required by
Subsections (c)(2) and (3) and without regard to whether the
information required by Subsection (c)(1) has been submitted, shall
determine that the facility, device, or method described in the
application is used wholly or partly as a facility, device, or
method for the control of air, water, or land pollution and shall
take the actions that are required by Subsection (d) in the event
such a determination is made.
SECTION 5. Section 26.045, Tax Code, is amended to read as
follows:
Sec. 26.045. ROLLBACK RELIEF FOR POLLUTION CONTROL
REQUIREMENTS. (a) The rollback tax rate for a political
subdivision of this state is increased by the rate that, if applied
to the total current value, would impose an amount of taxes equal to
the amount the political subdivision will spend out of its
maintenance and operation funds under Section 26.012(16)[, Tax
Code,] to pay for a facility, device, or method for the control of
air, water, or land pollution that is necessary to meet the
requirements of a permit issued by the Texas [Natural Resource
Conservation] Commission on Environmental Quality.
(b) In this section, “facility, device, or method for
control of air, water, or land pollution” means any land,
structure, building, installation, excavation, machinery,
equipment, or device, and any attachment or addition to or
reconstruction, replacement, or improvement of that property, that
is used, constructed, acquired, or installed wholly or partly to
meet or exceed rules or regulations adopted by any environmental
protection agency of the United States or this state for the
prevention, monitoring, control, or reduction of air, water, or
land pollution.
(c) To receive an adjustment to the rollback tax rate under
this section, a political subdivision shall present information to
the executive director of the Texas [Natural Resource Conservation]
Commission on Environmental Quality in a permit application or in a
request for any exemption from a permit that would otherwise be
required detailing:
(1) the anticipated environmental benefits from the
installation of the facility, device, or method for the control of
air, water, or land pollution;
(2) the estimated cost of the pollution control
facility, device, or method; and
(3) the purpose of the installation of the facility,
device, or method, and the proportion of the installation that is
pollution control property.
(d) Following submission of the information required by
Subsection (c), the executive director of the Texas [Natural
Resource Conservation] Commission on Environmental Quality shall
determine whether [if] the facility, device, or method is used
wholly or partly as a facility, device, or method for the control of
air, water, or land pollution. If the executive director determines
that the facility, device, or method is used wholly or partly to
control pollution, the director shall issue a letter to the
political subdivision stating that determination and the portion of
the cost of the installation that is pollution control property.
(e) The Texas [Natural Resource Conservation] Commission on
Environmental Quality may charge a political subdivision seeking a
determination that property is pollution control property an
additional fee not to exceed its administrative costs for
processing the information, making the determination, and issuing
the letter required by this section. The commission may adopt rules
to implement this section.
(f) The Texas Commission on Environmental Quality shall
adopt rules establishing a nonexclusive list of facilities,
devices, or methods for the control of air, water, or land
pollution, which must include:
(1) coal cleaning or refining facilities;
(2) atmospheric or pressurized and bubbling or
circulating fluidized bed combustion systems and gasification
fluidized bed combustion combined cycle systems;
(3) ultra-supercritical pulverized coal boilers;
(4) flue gas recirculation components;
(5) syngas purification systems and gas-cleanup
units;
(6) enhanced heat recovery systems;
(7) exhaust heat recovery boilers;
(8) heat recovery steam generators;
(9) superheaters and evaporators;
(10) enhanced steam turbine systems;
(11) methanation;
(12) coal combustion or gasification byproduct and
coproduct handling, storage, or treatment facilities;
(13) biomass cofiring storage, distribution, and
firing systems;
(14) coal cleaning or drying processes such as coal
drying/moisture reduction, air jigging, precombustion
decarbonization, and coal flow balancing technology;
(15) oxy-fuel combustion technology, amine or chilled
ammonia scrubbing, fuel or emission conversion through the use of
catalysts, enhanced scrubbing technology, modified combustion
technology such as chemical looping, and cryogenic technology;
(16) if the United States Environmental Protection
Agency adopts a final rule or regulation regulating carbon dioxide
as a pollutant, property that is used, constructed, acquired, or
installed wholly or partly to capture carbon dioxide from an
anthropogenic source in this state that is geologically sequestered
in this state;
(17) fuel cells generating electricity using hydrogen
derived from coal, biomass, petroleum coke, or solid waste; and
(18) any other equipment designed to prevent, capture,
abate, or monitor nitrogen oxides, volatile organic compounds,
particulate matter, mercury, carbon monoxide, or any criteria
pollutant.
(g) The Texas Commission on Environmental Quality by rule
shall update the list adopted under Subsection (f) at least once
every three years. An item may be removed from the list if the
commission finds compelling evidence to support the conclusion that
the item does not render pollution control benefits.
(h) Notwithstanding the other provisions of this section,
if the facility, device, or method for the control of air, water, or
land pollution described in a permit application or in a request for
any exemption from a permit that would otherwise be required is a
facility, device, or method included on the list adopted under
Subsection (f), the executive director of the Texas Commission on
Environmental Quality, not later than the 30th day after the date of
receipt of the information required by Subsections (c)(2) and (3)
and without regard to whether the information required by
Subsection (c)(1) has been submitted, shall determine that the
facility, device, or method described in the permit application or
in the request for an exemption from a permit that would otherwise
be required is used wholly or partly as a facility, device, or
method for the control of air, water, or land pollution and shall
take the action that is required by Subsection (d) in the event such
a determination is made.
(i) A political subdivision of the state seeking an
adjustment in its rollback tax rate under this section shall
provide to its tax assessor a copy of the letter issued by the
executive director of the Texas [Natural Resource Conservation]
Commission on Environmental Quality under Subsection (d). The tax
assessor shall accept the copy of the letter from the executive
director as conclusive evidence that the facility, device, or
method is used wholly or partly as pollution control property and
shall adjust the rollback tax rate for the political subdivision as
provided for by Subsection (a).
SECTION 6. Section 182.022, Tax Code, is amended by adding
Subsection (c) to read as follows:
(c) Notwithstanding any other provision of this chapter, a
tax under this chapter may not be imposed on gross receipts from the
sale of electricity generated by an advanced clean energy project,
as defined by Section 382.003, Health and Safety Code.
SECTION 7. Section 182.122, Tax Code, is amended to read as
follows:
Sec. 182.122. ALLOCATION OF TAX. (a) Revenues collected
under this chapter are allocated:
(1) one-fourth to the foundation school fund; and
(2) three-fourths to the general revenue fund.
(b) The comptroller shall transfer to the advanced clean
energy project account the first $30 million of the revenues
collected under this chapter that are allocated to the general
revenue fund under Subsection (a)(2) in any state fiscal biennium.
SECTION 8. Effective September 1, 2020, Section 182.122,
Tax Code, is amended to read as follows:
Sec. 182.122. ALLOCATION OF TAX. Revenues collected under
this chapter are allocated:
(1) one-fourth to the foundation school fund; and
(2) three-fourths to the general revenue fund.
SECTION 9. Subchapter B, Chapter 202, Tax Code, is amended
by adding Section 202.0545 to read as follows:
Sec. 202.0545. TAX EXEMPTION FOR ENHANCED RECOVERY PROJECTS
USING ANTHROPOGENIC CARBON DIOXIDE. (a) Subject to the
limitations provided by this section, until the later of the
seventh anniversary of the date that the comptroller first approves
an application for a tax rate reduction under this section or the
effective date of a final rule adopted by the United States
Environmental Protection Agency regulating carbon dioxide as a
pollutant, the producer of oil recovered through an enhanced oil
recovery project that qualifies under Section 202.054 for the
recovered oil tax rate provided by Section 202.052(b) is entitled
to an additional 50 percent reduction in that tax rate if in the
recovery of the oil the enhanced oil recovery project uses carbon
dioxide that:
(1) is captured from an anthropogenic source in this
state;
(2) would otherwise be released into the atmosphere as
industrial emissions;
(3) is measurable at the source of capture; and
(4) is sequestered in one or more geological
formations in this state following the enhanced oil recovery
process.
(b) In the event that a portion of the carbon dioxide used in
the enhanced oil recovery project is anthropogenic carbon dioxide
that satisfies the criteria of Subsection (a) and a portion of the
carbon dioxide used in the project fails to satisfy the criteria of
Subsection (a) because it is not anthropogenic, the tax reduction
provided by Subsection (a) shall be reduced to reflect the
proportion of the carbon dioxide used in the project that satisfies
the criteria of Subsection (a).
(c) To qualify for the tax rate reduction under this
section, the operator must:
(1) apply to the comptroller for the reduction and
include with the application any information and documentation that
the comptroller may require; and
(2) apply for a certification from:
(A) the Railroad Commission of Texas, if carbon
dioxide used in the project is to be sequestered in an oil or
natural gas reservoir;
(B) the Texas Commission on Environmental
Quality, if carbon dioxide used in the project is to be sequestered
in a geological formation other than an oil or natural gas
reservoir; or
(C) both the Railroad Commission of Texas and the
Texas Commission on Environmental Quality if both Paragraphs (A)
and (B) apply.
(d) An agency to which an operator applies for a
certification under Subsection (c)(2) may issue the certification
only if the agency finds that, based on substantial evidence, there
is a reasonable expectation that:
(1) the operator’s planned sequestration program will
ensure that at least 99 percent of the carbon dioxide sequestered as
required by Subsection (a)(4) will remain sequestered for at least
1,000 years; and
(2) the operator’s planned sequestration program will
include appropriately designed monitoring and verification
measures that will be employed for a period sufficient to
demonstrate whether the sequestration program is performing as
expected.
(e) The tax rate reduction does not apply if the operator’s
sequestration program or the operator’s monitoring and
verification measures differ substantially from the planned
program described by Subsection (d), and the operator shall refund
the difference between the amount of the tax paid under this section
and the amount that would have been imposed in the absence of this
section.
(f) The comptroller shall approve the application if the
operator submits the certification or certifications required by
Subsection (c)(2) and if the comptroller determines that the oil is
otherwise eligible under this section.
(g) If, before the comptroller approves an application for
the tax rate reduction under this section, the tax imposed by this
chapter is paid at the rate provided by Section 202.052(a) or (b) on
oil that qualifies under this section, the producer or producers of
the oil are entitled to a credit against taxes imposed by this
chapter in an amount equal to the difference between the tax paid on
the oil and the tax due on the oil after the rate reduction under
this section is applied. The credit is allowed to each producer
according to the producer’s proportionate share in the oil. To
receive a credit, one or more of the producers of the oil must apply
to the comptroller for the credit not later than the first
anniversary of the date the oil is produced.
(h) The comptroller, the Railroad Commission of Texas, and
the Texas Commission on Environmental Quality may adopt rules and
establish procedures to implement and administer this section.
SECTION 10. Section 313.024(b), Tax Code, as effective
January 1, 2008, is amended to read as follows:
(b) To be eligible for a limitation on appraised value under
this subchapter, the entity must use the property in connection
with:
(1) manufacturing;
(2) research and development;
(3) a clean coal project, as defined by Section 5.001,
Water Code;
(4) an advanced clean energy [a gasification] project,
as defined by Section 382.003, Health and Safety Code [for a coal
and biomass mixture]; or
(5) renewable energy electric generation.
SECTION 11. (a) Not later than September 1, 2012, and
September 1, 2016, the Texas Commission on Environmental Quality
and the State Energy Conservation Office shall issue a joint report
to the legislature providing a status update on the implementation
of the advanced clean energy program and an assessment of whether
the emissions profile set out in Section 382.003(1-a)(B), Health
and Safety Code, as added by this Act, should be adjusted to
increase or decrease elements of the emissions profile.
(b) Factors to be considered in the assessment of the
emissions profile shall include:
(1) the technical and economic feasibility of meeting
all of the elements of the emissions profile in a commercially
viable project, as documented by the United States Department of
Energy;
(2) the technical and economic feasibility of projects
to meet all of the elements of the emissions profile and still use a
diverse range of fuels, including lignite; and
(3) the adequacy of the incentives provided by this
Act to continue to attract investment in and federal funding for
advanced clean energy projects in this state.
(c) Any adjustments to the emissions profile implemented by
the legislature in response to a report required by this section
shall not apply to an application deemed administratively complete
on or before the date of the report.
SECTION 12. Not later than September 1, 2015, the State
Energy Conservation Office shall issue a report to the legislature
providing an assessment of whether the advanced clean energy
program should be extended due to a continued need for incentives to
ensure that a diverse range of affordable fuels, including lignite,
can be used in a manner that achieves the lowest emissions profile
that is technically and economically feasible.
SECTION 13. The State Energy Conservation Office shall
adopt rules to establish the advanced clean energy project grant
and loan program under Section 447.013, Government Code, as added
by this Act, not later than January 1, 2008. Such rules may allow
for the recovery of fees and administrative expenses.
SECTION 14. Not later than January 1, 2008, the Texas
Commission on Environmental Quality shall adopt rules required
under Section 382.0566, Health and Safety Code, and Section
11.31(k), Tax Code, as added by this Act, and Section 26.045(f), Tax
Code, as amended by this Act.
SECTION 15. Section 447.013(j), Government Code, as added
by this Act, takes effect only if the constitutional amendment
proposed by the 80th Legislature, Regular Session, 2007,
authorizing the issuance of general obligation bonds to provide and
guarantee loans to encourage clean energy projects is approved by
the voters. If that amendment is not approved by the voters,
Section 447.013(j), Government Code, as added by this Act, has no
effect.
SECTION 16. Except as otherwise provided by this Act, this
Act takes effect immediately if it receives a vote of two-thirds of
all the members elected to each house, as provided by Section 39,
Article III, Texas Constitution. If this Act does not receive the
vote necessary for immediate effect, this Act takes effect
September 1, 2007.

______________________________ ______________________________
President of the Senate Speaker of the House

I certify that H.B. No. 3732 was passed by the House on April
26, 2007, by the following vote: Yeas 141, Nays 2, 1 present, not
voting; that the House refused to concur in Senate amendments to
H.B. No. 3732 on May 24, 2007, and requested the appointment of a
conference committee to consider the differences between the two
houses; and that the House adopted the conference committee report
on H.B. No. 3732 on May 28, 2007, by the following vote: Yeas 112,
Nays 30, 2 present, not voting.

______________________________
Chief Clerk of the House

I certify that H.B. No. 3732 was passed by the Senate, with
amendments, on May 22, 2007, by the following vote: Yeas 31, Nays
0; at the request of the House, the Senate appointed a conference
committee to consider the differences between the two houses; and
that the Senate adopted the conference committee report on H.B. No.
3732 on May 27, 2007, by the following vote: Yeas 15, Nays 13.

______________________________
Secretary of the Senate
APPROVED: __________________
Date

__________________
Governor

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