1. (a) Pollutant applicability. The executive director will annually assess the Failure to Attain Fee for each pollutant, volatile organic compounds (VOC), nitrogen oxides (NO_X), or both, for which the major stationary source or Section 185 Account meets the requirements of §101.701 of this title (relating to Applicability) at any time during a calendar year.

2. (b) Aggregation. The fee will be assessed and calculated using the same Failure to Attain Fee determination method used under this subchapter. Actual VOC or NO_X emissions may be kept separate or aggregated together. A single pollutant may be aggregated across multiple major stationary sources, or VOC and NO_X emissions may both be aggregated together across multiple major stationary sources. Aggregation must be conducted as described under §101.707 of this title (relating to Aggregated Baseline Amount) and is limited to emissions from:

   1. (1) major stationary sources that aggregated VOC baseline amounts;
   2. (2) major stationary sources that aggregated NO_X baseline amounts; or
   3. (3) major stationary sources that aggregated VOC with NO_X baseline amounts.
3. (c) Assessment. The owner or operator of each major stationary source to which this rule applies must annually pay the Failure to Attain Fee to the commission calculated in accordance with either subsection (d) or (e) and subsection (f) of this section. The Failure to Attain Fee will be assessed on actual emissions of VOC and/or NO_X as recorded in the emissions inventory under §101.10 of this title (relating to Emissions Inventory Requirements), that exceed 80% of the pollutant baseline amount, rounded up to the nearest whole number.
4. (d) Fee assessment for separate pollutants. The Failure to Attain Fee from major stationary sources that did not aggregate baseline amounts under §101.707 of this title will remain separate and due from each major stationary source or Section 185 Account for each pollutant for which the source meets the major source applicability requirements. The fee will be calculated separately by the formula in subsection (f) of this section.

5. (e) Fee assessment for aggregated pollutants. The Failure to Attain Fee will be calculated in accordance with subsection (f) of this section and the method used for an aggregated baseline amount determination as described under §101.707(a) of this title.

   1. (1) If VOC emissions are aggregated, VOC emissions from all major stationary sources in the Section 185 Account must be used for aggregated actual emissions and the aggregated baseline emissions.
   2. (2) If NO_X emissions are aggregated, NO_X emissions from all major stationary sources in the Section 185 Account must be used for the aggregated actual and aggregated baseline emissions.
   3. (3) If VOC emissions are aggregated with NO_X emissions at one major stationary source, VOC and NO_X emissions must be used for the aggregated actual and aggregated baseline emissions. If VOC emissions are aggregated with NO_X emissions across multiple major stationary sources, VOC and NO_X emissions from each major stationary source in the Section 185 Account must be used for the aggregated actual and aggregated baseline emissions.
6. (f) Fee calculations. The fee will be calculated for VOC, NO_X, or both pollutants' emissions, as follows.
   Attached Graphic
   
7. (g) Enforcement. Failure to submit an emissions inventory according to the provisions of §101.10 of this title (relating to Emissions Inventory Requirements) to circumvent assessment of the Failure to Attain Fee is also subject to enforcement account under Texas Water Code (TWC), Chapter 7.

Source Note:The provisions of this §101.713 adopted to be effective November 13, 2025, 50 TexReg 7293.