(a) An owner or operator of a site as defined in §122.10 of this title (relating to General Definitions) in the Houston/Galveston ozone nonattainment area may use nitrogen oxides (NOx ) emission reductions generated under the TERP in lieu of allowances for compliance with this division provided that:
  (1) the owner or operator of the site contributes to the TERP fund $75,000 per ton of NOx emissions used, not to exceed 25 tons per year or 0.5 tons per day on a site-wide basis;
  (2) the owner or operator of the site demonstrates to the executive director that the site will be in full compliance with the applicable emission reduction requirements of this division and Chapter 117 of this title (relating to Control of Air Pollution from Nitrogen Compounds) no later than the fifth anniversary of the date on which the emission reductions would otherwise be required;
  (3) emissions from the site are reduced by at least 80% of the required reductions;
  (4) the reductions accomplished under the TERP have not been previously used to meet reduction requirements under a state implementation plan attainment demonstration;
  (5) the reductions accomplished under the TERP are used in the same nonattainment area in which they are generated; and
  (6) the executive director approves a petition submitted by the owner or operator of the site that demonstrates that it is technically infeasible to comply with applicable emission reduction requirements of this division and Chapter 117 of this title above 80% of the required reductions. When considering technical infeasibility the executive director may consider, but will not be limited to:
    (A) current technology;
    (B) adaptability of technology to a particular source;
    (C) age and projected useful life of a source; and
    (D) cost benefits at the time of application.
(b) The emissions reductions funded under the TERP, and used to offset commission requirements, shall be used to benefit the community in which the site using the emissions reductions is located. If there are no eligible emissions reduction projects within the community, the commission may authorize projects in an adjacent community. For purposes of this section, a community means a Justice of the Peace precinct.

Source Note: The provisions of this §101.357 adopted to be effective April 4, 2002, 27 TexReg 2510