2023 Texas Statutes › Health and Safety Code › Title 5 - Sanitation and Environmental Quality › Subtitle C - Air Quality › Chapter 386 - Texas Emissions Reduction Plan › Subchapter C. Diesel Emissions Reduction Incentive Program › Section 386.104. Eligibility Requirements

Sec. 386.104.  ELIGIBILITY REQUIREMENTS.  (a)  The commission shall establish criteria for setting priorities for projects eligible to receive grants under this subchapter.  The commission shall review and may modify the criteria and priorities as appropriate.
(b)  A proposed project as described in Section 386.102 must meet the requirements of this section to be eligible for a grant under the program.
(c)  Except as otherwise provided by this subsection, for a proposed project as described by Section 386.102(b), not less than 75 percent of vehicle miles traveled or hours of operation projected for the five years immediately following the award of a grant must be projected to take place in a nonattainment area or affected county of this state.  The commission may set the minimum percentage of vehicle miles traveled or hours of operation required to take place in a nonattainment area or affected county at a percentage and for a period that is different from the percentage and period specified by this subsection, provided that the commission may not set the minimum percentage at a level that is less than 55 percent.  The commission may allow vehicle travel on highways and roadways, or portions of a highway or roadway, designated by the commission and located outside a nonattainment area or affected county to count towards the percentage of use requirement in this subsection.
(c-1)  For a proposed project involving a marine vessel or engine, the vessel or engine must be operated in the intercoastal waterways or bays adjacent to a nonattainment area or affected county of this state for a sufficient percentage of time over the lifetime of the project, as determined by the commission, to meet the cost-effectiveness requirements of Section 386.105.  The percentage determined by the commission under this subsection may not be less than 55 percent.
(c-2)  For a proposed project involving non-road equipment used for natural gas recovery purposes, the equipment must be operated in a nonattainment area or affected county for a sufficient amount of use over the lifetime of the project, as determined by the commission, to meet the cost-effectiveness requirements of Section 386.105.
(d)  Each proposed project must meet the cost-effectiveness requirements of Sections 386.105 and 386.106.
(e)  A proposed repower project must exceed commission requirements relating to baseline emissions levels of the engines being replaced under the project.
(f)  A proposed retrofit, repower, replacement, or add-on equipment project must document, in a manner acceptable to the commission, a reduction in emissions of oxides of nitrogen of at least 30 percent compared with the baseline emissions adopted by the commission for the relevant engine year and application.  After study of available emissions reduction technologies and after public notice and comment, the commission may revise the minimum percentage reduction in emissions of oxides of nitrogen required by this subsection to improve the ability of the program to achieve its goals.
(f-1)  The commission may establish minimum percentage reduction standards alternative to the standards established under Subsection (f) as an incentive for the conversion of heavy-duty diesel on-road vehicle engines or non-road engines to operate under a dual-fuel configuration that uses natural gas and diesel fuels through an alternative fuel conversion system certified by the United States Environmental Protection Agency or the California Air Resources Board.  In determining the emissions rate of the converted vehicle and engine to compute the emissions reductions that can be attributed to the conversion system, the commission may take into account whether the emissions certification requirements for the conversion system prevent fully accounting for the emissions reductions.  If the commission determines it to be necessary and appropriate, the commission may consider under this subsection certified engine test information that demonstrates reductions of emissions of nitrogen oxides and other pollutants and other information to verify the emissions reductions.
(g)  If a baseline emissions standard does not exist for on-road or non-road diesels in a particular category, the commission, for purposes of this subchapter, shall establish an appropriate baseline emissions level for comparison purposes.
(h)  The commission may approve payments to offset the incremental cost, over the expected lifetime of the motor vehicle or on-road or non-road diesel, of the use of qualifying fuel in a motor vehicle or on-road or non-road diesel if the proposed project as a whole, including the incremental fuel cost, meets the requirements of this subchapter.  The commission shall develop an appropriate method for converting incremental fuel costs over the lifetime of the motor vehicle or on-road or non-road diesel into an initial cost for purposes of determining cost-effectiveness as required by Section 386.105.
(i)  If the commission determines that a heavy-duty motor vehicle or engine under this chapter must be decommissioned, the commission shall require the decommissioning to be carried out by crushing the vehicle, by making a hole in the engine block and permanently destroying the frame of the vehicle, or by another method approved by the commission that permanently removes the vehicle from operation in this state.  The commission shall provide a means for an applicant to propose an alternative method for complying with the requirements of this subsection.  The commission shall enforce the requirements of this subsection.
(j)  The executive director may waive any eligibility requirements established under this section on a finding of good cause, which may include a waiver for short lapses in registration or operation attributable to economic conditions, seasonal work, or other circumstances.
(k)  The commission shall consider an application under this chapter for the replacement of a vehicle that has been owned, leased, or otherwise commercially financed by the applicant.  If the commission determines that a heavy-duty motor vehicle or engine that is leased or otherwise commercially financed must be decommissioned, the commission shall ensure that the applicant has a legal right to decommission the vehicle or engine before awarding a grant to the applicant.
(l)  The commission shall consider an application for a vehicle replacement or a fleet expansion for a project with an activity life of five years or more, or 400,000 miles, whichever is earlier.
(m)  The commission shall provide a form that minimizes, to the maximum extent possible, the amount of paperwork required.
Added by Acts 2001, 77th Leg., ch. 967, Sec. 1(b), eff. Sept. 1, 2001.  Amended by Acts 2003, 78th Leg., ch. 1331, Sec. 6, eff. June 20, 2003.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 262 (S.B. 12), Sec. 2.04, eff. June 8, 2007.
Acts 2009, 81st Leg., R.S., Ch. 1125 (H.B. 1796), Sec. 16, eff. September 1, 2009.
Acts 2011, 82nd Leg., R.S., Ch. 835 (H.B. 3399), Sec. 1, eff. September 1, 2011.
Acts 2013, 83rd Leg., R.S., Ch. 1230 (S.B. 1727), Sec. 4, eff. June 14, 2013.
Acts 2017, 85th Leg., R.S., Ch. 755 (S.B. 1731), Sec. 8(d-2), eff. August 30, 2017.
Acts 2019, 86th Leg., R.S., Ch. 766 (H.B. 1346), Sec. 1, eff. September 1, 2019.
Acts 2021, 87th Leg., R.S., Ch. 1043 (H.B. 4472), Sec. 3, eff. September 1, 2021.