1. (a) The owner or operator of a major stationary source or Section 185 Account subject to this subchapter may submit a request to partially or completely fulfill the Failure to Attain Fee by participating in the Supplemental Environmental Projects (SEPs) program.
2. (b) The SEP must directly reduce the amount of VOC and/or NO_X emissions in the 2008 eight-hour ozone National Ambient Air Quality Standard nonattainment area.
3. (c) The SEP must be enforceable through an Agreed Order or other enforceable document.
4. (d) Any amounts paid in excess of the SEP Offset Amount may be used to partially or completely fulfill the Failure to Attain Fee.
5. (e) If the total amount paid to the SEP is greater than or equal to 110% of the SEP Offset Amount, then both the SEP Offset Amount and the amount paid in excess of the SEP Offset Amount may be used to partially or completely fulfill the Failure to Attain Fee.
6. (f) Amounts as specified in subsection (d) or subsection (e) of this section must be credited on a dollar-for-dollar basis and will not be discounted due to the passage of time. Those credits may be accumulated from year to year, and if a surplus exists in any given year, the credits may be used to partially or completely fulfill the Failure to Attain Fee as needed.

7. (g) The following cannot be used to partially or completely fulfill the Failure to Attain Fee:

   1. (1) any amount of the enforcement administrative penalty paid to the commission; or
   2. (2) any amount deferred to expedite settlement of an enforcement administrative penalty.
8. (h) The use of a SEP to fulfill the Failure to Attain Fee is subject to approval by the executive director.

Source Note:The provisions of this §101.717 adopted to be effective November 13, 2025, 50 TexReg 7293.