(a) The owner and/or operator of a Section 185 Account subject to this subchapter may submit a request to partially or completely fulfill its Failure to Attain Fee obligation by contributing to a Supplemental Environmental Project (SEP), on a volatile organic compounds (VOC) or nitrogen oxides (NOX ) specific basis by either:
  (1) an amount equivalent to the tons on which the Failure to Attain Fee has been assessed; or
  (2) an amount equivalent to the Failure to Attain Fee amount assessed.
(b) The SEP must directly reduce the amount of VOC and/or NOX emissions in the Houston-Galveston-Brazoria one-hour ozone nonattainment area.
(c) The SEP must be enforceable through an Agreed Order or other enforceable document.
(d) The use of SEP funds must be on a dollar-for-dollar basis and shall not be discounted due to the passage of time. Credit from SEP funds may be accumulated from year to year, and if a surplus exists in any given year, the funds may be used to offset the calculated Failure to Attain Fee as needed.
(e) Funds in a SEP used to offset an administrative penalty cannot be used to offset a Failure to Attain Fee obligation.
(f) The use of a SEP to fulfill a Failure to Attain Fee obligation is subject to approval by the executive director.

Source Note: The provisions of this §101.122 adopted to be effective June 12, 2013, 38 TexReg 3610