(a) An owner or operator of a unit located in the Dallas-Fort Worth eight-hour ozone nonattainment area or in the Houston-Galveston-Brazoria ozone nonattainment area that is not subject to Chapter 101, Subchapter H, Division 3 of this title (relating to Mass Emissions Cap and Trade Program) may meet emission control requirements of the sections specified in paragraphs (1) and (2) of this subsection, by obtaining emission reductions generated from the TERP as specified in subsection (b) of this section:
  (1) §117.405 of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT));
  (2) §117.410 or §117.1310 of this title (relating to Emission Specifications for Eight-Hour Attainment Demonstration).
(b) An owner or operator may obtain emission reductions generated from TERP, as provided in subsection (a) of this section, if:
  (1) the owner or operator of the site as defined in §122.10 of this title (relating to General Definitions) contributes to the TERP fund, $75,000 per ton of nitrogen oxides 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 chapter no later than the fifth anniversary of the date that 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 that 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 chapter 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.
(c) The emissions reductions funded under the TERP, and used to offset commission requirements, must be used to benefit the community where 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 §117.9810 adopted to be effective June 14, 2007, 32 TexReg 3206; amended to be effective June 25, 2015, 40 TexReg 3965