(a) Applicability. The owner or operator of an industrial or utility boiler, as defined in §101.1 of this title (relating to Definitions), with a heat input capacity of greater than 10.0 million British thermal units (Btu) per hour capable of using natural gas shall remit to the Texas Air Control Board (TACB) a clean fuel incentive surcharge of $.20 per million Btu on fuel oil used on or between April 15 and October 15 of each year. Provisions of this section apply only to industrial and utility boilers located in consolidated metropolitan statistical areas or metropolitan statistical areas with a population of 350,000 or more which have not met the national ambient air quality standard for ozone.
(b) Exemptions. The owner or operator of an industrial or utility boiler affected by subsection (a) of this section is exempt from the surcharge in the following circumstances:
  (1) burning of the following oils as defined for purposes of energy recovery or disposal, provided that such burning activities are approved or permitted by TACB, Texas Water Commission, and/or the United States Environmental Protection Agency:
    (A) Used oil--Any oil that has been refined from crude oil, has been used, and, as a result of such use, is contaminated by physical or chemical impurities;
    (B) Hazardous waste-derived oil--Any oil that has been produced by processing, blending, or other treatment using hazardous wastes, as defined in §101.1 of this title (relating to Definitions);
    (C) Waste oil--Any by-product or co-product oil resulting from crude oil refining or petrochemical production, which is used for energy recovery on-site, provided such use does not exceed 5.0% of the manufacturing complex's fuel consumption, and any by-product oil resulting from crude oil refining or petrochemical production, which is used for energy recovery on-site, if the material has no commercial value and would otherwise be Class I industrial solid waste or hazardous waste. For purposes of this definition, the term "on-site" includes facilities which are adjacent, contiguous, or physically interconnected;
  (2) fuel oil use during documented periods of full or partial natural gas curtailment or during documented periods when insufficient natural gas is available to satisfy contractual obligations, or in the event of catastrophic events as defined in the Texas Clean Air Act (TCAA), §382.063(j);
  (3) fuel oil use in equipment testing or personnel training if limited to an aggregate of the equivalent of 48 hours full-load operation between April 15 through October 15;
  (4) fuel oil use under a fixed-price contract with a public works agency entered into prior to August 28, 1989.
(c) Recordkeeping. The owner or operator of an industrial or utility boiler, as defined in §101.1 of this title (relating to Definitions), with a heat input capacity of greater than 10.0 million Btu per hour capable of using natural gas shall maintain records of fuel usage, including amounts and types of fuels used during April 15 to October 15 of each year. Provisions of this section apply only to industrial and utility boilers located in consolidated metropolitan statistical areas, or metropolitan statistical areas with a population of 350,000 or more which have not met the national ambient air quality standard for ozone. The fuel usage record should include documentation of any fuel oil burned as allowed by subsection (b) of this section. The fuel usage record for each year shall be maintained for two years and made available to authorized representatives of TACB and/or local air pollution control agencies upon request.
(d) Payment. Surcharges shall be remitted in the form of a check or money order made payable to TACB annually by December 31, beginning in 1990. A fuel usage report documenting the amount and types of fuel used during April 15 through October 15 for each boiler affected by subsection (a) of this section shall accompany any surcharge remitted. The fuel usage report shall also include the company name, mailing address, property address, TACB account number, and the name and telephone number of the person to contact in case questions arise regarding the surcharge payment.
(e) Nonpayment of surcharge. Failure to remit the fuel surcharge payment by December 31 shall result in action under the TCAA, §382.088 or §382.082.

Source Note: The provisions of this §101.26 adopted to be effective June 8, 1990, 15 TexReg 2913