Regulatory Text: 
Texas Commission on Environmental Quality

Texas Chapter 116 - Control of Air Pollution by Permits for New Construction or Modification

SUBCHAPTER B: NEW SOURCE REVIEW PERMITS

DIVISION 1: PERMIT APPLICATION
As approved by EPA October 14, 2020 (85 FR 64966), SIP effective November 13, 2020 (TXd227),
Regulations.gov docket EPA-R06-OAR-2020-0159 [TX218].

Outline:
§116.110.  Applicability. 6-91 TXd227
§116.111.  General Application. 6-86 TXd161
§116.112.  Distance Limitations. 6-65 TXd71 CFR correction TXd186
§116.114.  Application Review Schedule. 6-90 TXd220
§116.115.  General and Special Conditions. 6-81 TXd135
§116.116.  Changes to Facilities. 6-91 TXd227
§116.117.  Documentation and Notification of Changes to Qualified Facilities. 6-79 TXd186
§116.118.  Construction While Permit Amendments Application Pending.  6-91 TXd227
§116.120.  Voiding of Permits. 6-64 TXd110
§116.127.  Actual to Projected Actual and Emission Exclusion Test for Emissions. 6-81 TXd135
**************************end Outline******************** 

6B1 §116.110. Applicability.
SIP effective November 13, 2020.
As adopted by TCEQ July 15, 2020 effective August 6, 2020 (6-91),
Submitted to EPA August 21, 2020 (TX-423),
Regulations.gov document EPA-R06-OAR-2020-0159-0010 [TX218.10], adobe page 71.
Approved by EPA October 14, 2020 (85 FR 64966), SIP effective November 13, 2020 (TXd227),
Regulations.gov docket EPA-R06-OAR-2020-0159 [TX218].
Explanation: SIP does not include 116.110(a)(5), 116.110(c), or 116.110(d).

page 71
     (a) Permit to construct. Except as provided in §116.118 of this title (relating to
Construction While Permit Amendment Application Pending), before any
actual work is begun on the facility, any person who plans to construct any new facility

page 72
or to engage in the modification of any existing facility which may emit air
contaminants into the air of this state shall either:
          (1) obtain a permit under §116.111 of this title (relating to General
Application);
          (2) satisfy the conditions for a standard permit under the requirements in:
               (A) Subchapter F of this chapter (relating to Standard Permits);
               (B) Chapter 321, Subchapter B of this title (relating to Concentrated
Animal Feeding Operations);
               (C) Chapter 332 of this title (relating to Composting); or
               (D) Chapter 330, Subchapter N of this title (relating to Landfill Mining);
          (3) satisfy the conditions for a flexible permit under the requirements in
Subchapter G of this chapter (relating to Flexible Permits);

page 73
          (4) satisfy the conditions for facilities permitted by rule under Chapter
106 of this title (relating to Permits by Rule); or
          (5) NOT IN SIP
     (b) Modifications to existing permitted facilities. Modifications to existing
permitted facilities may be handled through the amendment of an existing permit.
     (c) NOT IN SIP
     (d) NOT IN SIP
     (e) Change in ownership.
          (1) Within 30 days after the change of ownership of a facility permitted
under this chapter, the new owner shall notify the commission and certify the
following:
               (A) the date of the ownership change;
               (B) the name, address, phone number, and contact person for the
new owner;
               (C) an agreement by the new owner to be bound by all permit
conditions and all representations made in the permit application and any
amendments and alterations;
               (D) there will be no change in the type of pollutants emitted; and

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               (E) there will be no increase in the quantity of pollutants emitted.
          (2) The new owner shall comply with all permit conditions and all
representations made in the permit application and any amendments and alterations.
     (f) Submittal under seal of Texas licensed professional engineer. Applications
for permit or permit amendment with an estimated capital cost of the project above $2
million, and not subject to any exemption contained in the Texas Engineering Practice
Act (TEPA), shall be submitted under seal of a Texas licensed professional engineer.
However, nothing in this subsection shall limit or affect any requirement which may
apply to the practice of engineering under the TEPA or the actions of the Texas Board
of Professional Engineers. The estimated capital cost is defined in §116.141 of this title
(relating to Determination of Fees).
     (g) Responsibility for permit application. The owner of the facility or the
operator of the facility authorized to act for the owner is responsible for complying
with this section.
**end §116.110**SIP effective November 13, 2020**TXd227**ay6**

6B1 §116.111. General Application.
SIP effective November 10, 2014 (TXd161)
As adopted by TCEQ March 26, 2014, effective April 17, 2014 (6-86)
Regulations.gov document EPA-R06-OAR-2013-0808-0027  [TX155.27]
Approved by EPA November 10, 2014 (79 FR 66626) SIP effective November 10, 2014 (TXd161)
Regulations.gov docket EPA-R06-OAR-2013-0808  [TX155]
Explanation: 
      30 TAC Section 116.111(a)(2)(I) is SIP-approved as adopted by the State as of 8/21/2002.
      The SIP does NOT include 30 TAC Section 116.111(a)(2)(K).

     (a) In order to be granted a permit, amendment, or special permit amendment, the application must include:
         (1) a completed Form PI-1 General Application signed by an authorized representative of the applicant. All additional support information specified on the form must be provided before the application is complete;
         (2) information which demonstrates that emissions from the facility, including any associated dockside vessel emissions, meet all of the following.
             (A) Protection of public health and welfare.
                 (i) The emissions from the proposed facility will comply with all rules and regulations of the commission and with the intent of the Texas Clean Air Act (TCAA), including protection of the health and property of the public.
                 (ii) For issuance of a permit for construction or modification of any facility within 3,000 feet of an elementary, junior high/middle, or senior high school, the commission shall consider any possible adverse short-term or long-term side effects that an air contaminant or nuisance odor from the facility may have on the individuals attending the school(s).
             (B) Measurement of emissions. The proposed facility will have provisions for measuring the emission of significant air contaminants as determined by the executive director. This may include the installation of sampling ports on exhaust stacks and construction of sampling platforms in accordance with guidelines in the "Texas Commission on Environmental Quality Sampling Procedures Manual."
             (C) Best available control technology (BACT) must be evaluated for and applied to all facilities subject to the TCAA. Prior to evaluation of BACT under the TCAA, all facilities with pollutants subject to regulation under Title I Part C of the Federal Clean Air Act (FCAA) shall evaluate and apply BACT as defined in §116.160(c)(1)(A) of this title (relating to Prevention of Significant Deterioration Requirements).
             (D) New Source Performance Standards (NSPS). The emissions from the proposed facility will meet the requirements of any applicable NSPS as listed under 40 Code of Federal Regulations (CFR) Part 60, promulgated by the United States Environmental Protection Agency (EPA) under FCAA, §111, as amended.
             (E) National Emission Standards for Hazardous Air Pollutants (NESHAP). The emissions from the proposed facility will meet the requirements of any applicable NESHAP, as listed under 40 CFR Part 61, promulgated by EPA under FCAA, §112, as amended.
             (F) NESHAP for source categories. The emissions from the proposed facility will meet the requirements of any applicable maximum achievable control technology standard as listed under 40 CFR Part 63, promulgated by the EPA under FCAA, §112 or as listed under Chapter 113, Subchapter C of this title (relating to National Emissions Standards for Hazardous Air Pollutants for Source Categories (FCAA §112, 40 CFR Part 63)).
             (G) Performance demonstration. The proposed facility will achieve the performance specified in the permit application. The applicant may be required to submit additional engineering data after a permit has been issued in order to demonstrate further that the proposed facility will achieve the performance specified in the permit application. In addition, dispersion modeling, monitoring, or stack testing may be required.
(H) Nonattainment review. If the proposed facility is located in a nonattainment area, it shall comply with all applicable requirements in this chapter concerning nonattainment review.

30 TAC Section 116.111(a)(2)(I) is SIP-approved as adopted by the State as of 8/21/2002.
             (I) Prevention of Significant Deterioration (PSD) review. If the proposed facility is located in an attainment area, it shall comply with all applicable requirements in this chapter concerning PSD review.

             (J) Air dispersion modeling. Computerized air dispersion modeling may be required by the executive director to determine air quality impacts from a proposed new facility or source modification. In determining whether to issue, or in conducting a review of, a permit application for a shipbuilding or ship repair operation, the commission will not require and may not consider air dispersion modeling results predicting ambient concentrations of non-criteria air contaminants over coastal waters of the state. The commission shall determine compliance with non-criteria ambient air contaminant standards and guidelines at land-based off-property locations.
             (K) NOT IN SIP
             (L) Mass cap and trade allowances. If subject to Chapter 101, Subchapter H, Division 3, of this title (relating to Mass Emissions Cap and Trade Program), the proposed facility, group of facilities, or account must obtain allowances to operate.

     (b) In order to be granted a permit, amendment, or special permit amendment, the owner or operator must comply with the following notice requirements.
         (1) Applications declared administratively complete before September 1, 1999, are subject to the requirements of Division 3 of this subchapter (relating to Public Notification and Comment Procedures).
         (2) Applications declared administratively complete on or after September 1, 1999, are subject to the requirements of Chapter 39 of this title (relating to Public Notice) and Chapter 55 of this title (relating to Request for Reconsideration and Contested Case Hearings; Public Comment). Upon request by the owner or operator of a facility which previously has received a permit or special permit from the commission, the executive director or designated representative may exempt the relocation of such facility from the provisions in Chapter 39 of this title if there is no indication that the operation of the facility at the proposed new location will significantly affect ambient air quality and no indication that operation of the facility at the proposed new location will cause a condition of air pollution.
**end tx§116.111 SIP effective November 10, 2014 (TXd161)**v1u**

6B1 §116.112.  Distance Limitations.
SIP effective February 6, 2005 (TXd71).
As adopted by TCEQ January 14, 2004 effective February 4, 2004 (6-65).
Approved by EPA December 7, 2005 (70 FR 72720) SIP effective February 6, 2005 (TXd71),
Regulations.gov docket EPA-R06-OAR-2005-TX-0030 [TX036].

Correction of Texas 40 CFR 52.2270(c) table adds an entry for 30 TAC Section 116.112 which had been inadvertently removed from the Texas 40 CFR 52.2270(c) table in an earlier Federal Register rulemaking action. The correction was published in the Federal Register September 9, 2016 (81 FR 62381) SIP effective October 11, 2016 (TXd186), Regulations.gov document EPA-R06-OAR-2010-0861-0012 [TX112.12]. See page 81 FR 62385, paragraph 2(a)(ii) and table on page 62385, which adds Section 116.112 back into the Texas 40 CFR 52.2270(c) table. This correction did not change the SIP-approved Section 116.112 as approved by EPA December 7, 2005 (70 FR 72720).

     (a)  For any facility subject to the notice and hearing requirements of Subchapter B, Division 3 of this chapter (relating to Public Notification and Comment Procedures); Chapter 39, Subchapters A, D, H, or K of this title (relating to Applicability and General Provisions, Public Notice of Air Quality Applications, Applicability and General Provisions, and Public Notice of Air Quality Applications); or Chapter 122, Subchapter D of this title (relating to Public Announcement, Public Notice, Affected State Review, Notice and Comment Hearing, Notice of Proposed Final Action, EPA Review, and Public Petition), the measurement of distances to determine compliance with any location or distance limitation requirement in Texas Health and Safety Code, Chapter 382, shall be taken toward structures that are in use at the time the permit application is filed with the commission, and that are not occupied or used solely by the owner of the facility or the owner of the property upon which the facility is located.
     (b)  The following facilities must satisfy the following distance criteria.
          (1)  Lead smelters.  New lead smelting plants shall be located at least 3,000 feet from any individual’s residence where lead smelting operations have not been conducted before August 31, 1987.  This subsection does not apply to:
               (A)  a modification of a lead smelting plant in operation on or before August 31, 1987;
               (B)  a new lead smelting plant or modification of a plant with the capacity to produce 200 pounds or less of lead per hour; or
               (C)  a lead smelting plant that was located more than 3,000 feet from the nearest residence when the plant began operations.
          (2)  Concrete crushing facilities.  A concrete crushing facility must not be operated within 440 yards of any building in use as a single or multi-family residence, school, or place of worship at the time the application for the initial authorization for the operation of that facility at that location is filed with the commission.
               (A)  The measurement of distances shall be taken from the point on the concrete crushing facility nearest to the residence, school, or place of worship to the point on the building in use as a residence, school, or place of worship that is nearest the concrete crushing facility.
               (B)  The minimum distance limitation and measurement requirements of this paragraph do not apply to concrete crushing facilities that were authorized to operate at the site as of September 1, 2001.
               (C)  Unless the facility is located in, or located in a county adjacent to, a county with a population of 2.4 million or more, the minimum distance limitation and measurement requirements of this paragraph do not apply to facilities operated on a site during one period of no more than 180 calendar days that crush concrete resulting from the demolition of a structure on that site for use primarily at that site, and which comply with all applicable conditions stated in commission rules, including operating conditions.
               (D)  The minimum distance limitation and measurement requirements of this paragraph do not apply to structures occupied or used solely by the owner of the facility or the owner of the property upon which the facility is located.
     (c)  For applicable distance limitations at hazardous waste management facilities, see §335.204 of this title (relating to Unsuitable Site Characteristics), as amended and adopted in the August 22, 2003 issue of the Texas Register (28 TexReg 6915), and §335.205 of this title (relating to Prohibition of Permit Issuance), as amended and adopted in the November 9, 2001 issue of the Texas Register (26 TexReg 9135).
***end TX§116.112 SIP effective February 6, 2005 (TXd71)**x6f***


6B1 §116.114 Application Review Schedule  
SIP effective March 16, 2020 (TXd220).
As adopted by TCEQ October 31, 2018 effective November 22, 2018 (6-90).
Submitted to EPA February 22, 2019 (TX-419),
Regulations.gov document EPA-R06-OAR-2019-0043-0003 [TX214.03] adobe page 69.
Approved by EPA February 13, 2020 (85 FR 8185) SIP effective March 16, 2020 (TXd220),
Regulations.gov docket EPA-R06-OAR-2019-0043 [TX214].

Page 69
   (a) Review schedule. The executive director shall review permit applications in
accordance with the following.

Page 70
      (1) Notice of completion or deficiency. The executive director shall mail
written notification informing the applicant that the application is complete or that it
is deficient within 90 days of receipt of the application for a new permit, or
amendment to a permit or special permit.
         (A) If the application is deficient, the notification must state:
            (i) the additional information required; and
            (ii) the intent of the executive director to void the
application if information for a complete application is not submitted.
         (B) Additional information may be requested within 60 days of
receipt of the information provided in response to the deficiency notification.
      (2) Preliminary decision to approve or disapprove the application. The
executive director shall conduct a technical review and send written notice to the
applicant of the preliminary decision to approve or not approve the application within
180 days from receipt of a completed permit application or 150 days from receipt of a
completed permit amendment. If the applicant has provided Notice of Receipt of
Application and Intent to Obtain Permit public notification as required by the executive

Page 71
director under Chapter 39 of this title (relating to Public Notice), one of the following
shall apply:
         (A) if comments are received on the proposed facility and replied
to by the executive director in accordance with §39.420 of this title (relating to
Transmittal of the Executive Director's Response to Comments and Decision) and
§55.156 of this title (relating to Public Comment Processing); and
         (B) if no requests for public hearing or public meeting on the
proposed facility have been received or the application is otherwise exempt under
§39.419(e) of this title (relating to Notice of Application and Preliminary Decision), the
executive director shall send a copy of the Preliminary Decision to the applicant; or
         (C) if Notice of Application and Preliminary Decision is required
under §39.419(e) of this title, the executive director shall authorize this notice and
send copies to the applicant and all other persons are required under §39.602 of this
title (relating to Mailed Notice).
      (3) Review schedule for Advanced Clean Energy Projects. In addition to
the applicable requirements and deadlines specified in subsections (a)-(c) of this
section, the following deadlines apply to permit applications for advanced clean energy
projects as defined in Texas Health and Safety Code, §382.003, Definitions:

Page 72
         (A) As authorized by federal law, not later than nine months after
the executive director declares an application for a permit under this chapter for an
advanced clean energy project to be administratively complete, the executive director
shall complete its technical review of the application.
         (B) The commission shall issue a final order issuing or denying the
permit not later than nine months after the executive director declares the application
technically complete. The commission may extend this deadline up to three months if
it determines that the number of complex pending applications for permits under this
chapter will prevent the commission from meeting this deadline without creating an
extraordinary burden on the resources of the commission.
      (4) Refund of permit fee.
         (A) If the time limits provided in this section to process an
application are exceeded, the applicant may appeal in writing to the executive director
for a refund of the permit fee.
         (B) The permit fee shall be reimbursed if it is determined by the
executive director that the specified period was exceeded without good cause, as
provided in Texas Civil Statutes, Article 6252-13b.l, §3.
   (b) Voiding of deficient application.

Page 73
      (1) An applicant shall make a good faith effort to submit, in a timely
manner, adequate information which demonstrates that the requirements for
obtaining a permit or permit amendment are met in response to any deficiency
notification issued by the executive director under the provisions of this section, or
Chapter 39 of this title.
      (2) If an applicant fails to make such good faith effort after two written
notices of deficiency, the executive director shall void the application and notify the
applicant of the voidance and the remaining deficiencies in the voided application. If a
new application is submitted within six months of the voidance, it shall meet the
requirements of §116.111 of this title (relating to General Application) but will be
exempt from the requirements of §116.140 of this title (relating to Applicability).
   (c) Notification of executive director's decision.
      (1) Notification to applicant. The executive director or the chief clerk
shall send to the applicant the decision to approve or not approve the application if:
         (A) no timely requests for reconsideration, contested case hearing,
or public meeting on the proposed facility have been received; or

page 74
         (B) if hearing requests have been received and withdrawn before
the executive director's Preliminary Decision; or
         (C) the application is for any amendment, modification, or renewal
application that would not result in an increase in allowable emissions and would not
result in the emission of an air contaminant not previously emitted; and
         (D) the applicant has satisfied all public notification requirements
of Chapter 39 of this title.
      (2) Notification to commenters. Persons submitting written comments
under Chapter 39 of this title shall be sent the executive director's final action and
given an explanation of the opportunity to file a motion under §50.139 of this title
(relating to Motion to Overturn Executive Director's Decision) at the same time that 
the applicant is notified. If the number of interested persons who have requested
notification makes it impracticable for the commission to notify those persons by mail,
the commission shall notify those persons by publication using the method prescribed
by Texas Health and Safety Code, §382.031(a).
      (3) Time limits. The executive director shall send notification of final
action within:

Page 75
         (A) one year after receipt of a complete prevention of significant
deterioration or nonattainment permit application, or a complete permit application
for an action under Subchapter C of this chapter (relating to Plant-Wide Applicability Limits);
         (B) 180 days of receipt of a completed permit or permit renewal application; or
         (C) 150 days of receipt of a permit amendment or special permit amendment application.
***end  TX§116.114 SIP effective March 16, 2020 (TXd220) ***a3g***

6B1 §116.115.  General and Special Conditions. 
SIP effective November 26, 2012 (TXd135).
As adopted by TCEQ February 9, 2011 effective March 3, 2011 (6-81)
Approved by EPA October 25, 2012 (77 FR 65119) SIP effective November 26, 2012 (TXd135)
Regulations.gov docket EPA-R06-OAR-2011-0332  [TX118]

Error in October 25, 2012 Federal Register amendatory language on page 77 FR 65123 -- The Explanation column for Section 116.115 should have contained the statement: "The SIP does not include subsection 116.115(c)(2)(B)(ii)(I)".  Subsection 116.115(c)(2)(B)(ii)(I) was removed from the Texas SIP September 15, 2010 (75 FR 56424) effective October 15, 2010 (TXd117), because the subsection implements the requirements of Section 112(g) of the Federal Clean Air Act which is outside the scope of the Federal State Implementation Plan requirements.  See Regulations.gov dockets EPA-R06-OAR-2005-TX-0025 and EPA-R06-OAR-2006-0133.


     (a)  General and special conditions.  Permits, special permits, standard permits, and special exemptions may contain general and special conditions.
     (b)  General conditions.  Holders of permits, special permits, standard permits, and special exemptions shall comply with the following:
          (1)  the general conditions contained in the permit document if issued or amended prior to August 16, 1994; or
          (2)  the following general conditions if the permit or amendment is issued or amended on or after August 16, 1994, regardless of whether they are specifically stated within the permit document.
               (A)  Report of construction progress.  The permit holder shall report start of construction, construction interruptions exceeding 45 days, and completion of construction.  The report shall be given to the appropriate regional office of the commission not later than 15 working days after occurrence of the event.
               (B)  Start-up notification.
                    (i)  The permit holder shall notify the appropriate air program regional office of the commission prior to the commencement of operations of the facilities authorized by the permit.  The notification must be made in such a manner as to allow representative of the commission to be present at the commencement of operations.
                    (ii)  The permit holder shall provide a separate notification for the commencement of operations for each unit of phased construction, which may involve a series of units commencing operations at different times.
                    (iii)  Prior to operation of the facilities authorized by the permit, the permit holder shall identify to the Office of Permitting, Remediation, and Registration the source or sources of allowances to be utilized for compliance with Chapter 101, Subchapter H, Division 3 of this title (relating to Mass Emissions Cap and Trade Program).
               (C)  Sampling requirements.
                    (i)  If sampling is required, the permit holder shall contact the commission's Office of Compliance and Enforcement prior to sampling to obtain the proper data forms and procedures.
                    (ii)  All sampling and testing procedures must be approved by the executive director and coordinated with the regional representatives of the commission.
                    (iii)  The permit holder is also responsible for providing sampling facilities and conducting the sampling operations or contracting with an independent sampling consultant.
               (D)  Equivalency of methods.  The permit holder must demonstrate or otherwise justify the equivalency of emission control methods, sampling or other emission testing methods, and monitoring methods proposed as alternatives to methods indicated in the conditions of the permit.  Alternative methods shall be applied for in writing and must be reviewed and approved by the executive director prior to their use in fulfilling any requirements of the permit.
               (E)  Recordkeeping.  The permit holder shall:
                    (i)  maintain a copy of the permit along with records containing the information and data sufficient to demonstrate compliance with the permit, including production records and operating hours;
                    (ii)  keep all required records in a file at the facility site.  If, however, the facility site normally operates unattended, records must be maintained at an office within Texas having day-to-day operational control of the facility site;
                    (iii)  make the records available at the request of personnel from the commission or any local air pollution control agency having jurisdiction over the site.  Upon request, the commission shall make any such records of compliance available to the public in a timely manner;
                    (iv)  comply with any additional recordkeeping requirements specified in special conditions attached to the permit;
                    (v)  retain information in the file for at least two years following the date that the information or data is obtained; and
                    (vi)  for persons certifying and registering a federally-enforceable emission limitation in accordance with §116.611 of this title (relating to Registration To Use a Standard Permit), retain all records demonstrating compliance for at least five years.
               (F)  Maximum allowable emission rates.  The total emissions of air contaminants from any of the sources of emissions must not exceed the values stated on the table attached to the permit entitled "Emission Sources--Maximum Allowable Emission Rates."  Emissions that exceed the maximum allowable emission rates are not authorized and are a violation of the permit.
               (G)  Maintenance of emission control.  The permitted facilities shall not be operated unless all air pollution emission capture and abatement equipment is maintained in good working order and operating properly during normal facility operations.  The permit holder shall provide notification for emissions events and maintenance in accordance with §§101.201, 101.211, and 101.221 of this title (relating to Emissions Event Reporting and Recordkeeping Requirements; Scheduled Maintenance, Start-up, and Shutdown Reporting and Recordkeeping Requirements; and Operational Requirements).
               (H)  Compliance with rules.
                    (i)  Acceptance of a permit by an applicant constitutes an acknowledgment and agreement that the permit holder will comply with all rules, regulations, and orders of the commission issued in conformity with the TCAA and the conditions precedent to the granting of the permit.
                    (ii)  If more than one state or federal rule or regulation or permit condition are applicable, the most stringent limit or condition shall govern and be the standard by which compliance shall be demonstrated.
                    (iii)  Acceptance includes consent to the entrance of commission employees and agents into the permitted premises at reasonable times to investigate conditions relating to the emission or concentration of air contaminants, including compliance with the permit.
     (c)  Special conditions.  The holders of permits, special permits, standard permits, and special exemptions shall comply with all special conditions contained in the permit document.
          (1)  Special conditions may be attached to a permit that are more restrictive than the requirements of Title 30 of the Texas Administrative Code.
          (2)  Special condition for written approval.
               (A)  The executive director may require as a special condition that the permit holder obtain written approval before constructing a source under:
                    (i)  a standard permit under Subchapter F of this chapter (relating to Standard Permits); or
                    (ii)  an exemption under Chapter 106 of this title (relating to Permits by Rule).
               (B)  Such written approval may be required if the executive director specifically finds that an increase of a particular pollutant could either:
                    (i)  result in a significant impact on the air environment; or
                    (ii)  cause the facility to become subject to review under:
NOTE TO READER: Subsection 116.115(c)(2)(B)(ii)(I) below removed from SIP September 14, 2010 (75 FR56424) effective October 15, 2010 (TXd117). END NOTE TO READER
                         (I)  Subchapter (C) of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFR Part 63)); or
                         (II)  the provisions in Division 5 of this subchapter (relating to Nonattainment Review) and Division 6 of this subchapter (relating to Prevention of Significant Deterioration Review).
***end TX§116.115 SIP effective November 26, 2012 (TXd135)***t4h***
 

6B1 §116.116. Changes to Facilities.
SIP effective November 13, 2020.
As adopted by TCEQ July 15, 2020 effective August 6, 2020 (6-91),
Submitted to EPA August 21, 2020 (TX-423),
Regulations.gov document EPA-R06-OAR-2020-0159-0010 [TX218.10], adobe page 75.
Approved by EPA October 14, 2020 (85 FR 64966), SIP effective November 13, 2020 (TXd227),
Regulations.gov docket EPA-R06-OAR-2020-0159 [TX218].
Explanation: SIP does not include 30 TAC Section 116.116(b)(3).

Page 75
     (a) Representations and conditions. The following are the conditions upon which
a permit, special permit, or special exemption are issued:

Page 76
          (1) representations with regard to construction plans and operation
procedures in an application for a permit, special permit, or special exemption; and
          (2) any general and special conditions attached to the permit, special
permit, or special exemption itself.
     (b) Permit amendments.
          (1) Except as provided in subsection (e) of this section or §116.118 of this
title (relating to Construction While Permit Amendment Application Pending), the
permit holder shall not vary from any representation or permit condition without
obtaining a permit amendment if the change will cause:
               (A) a change in the method of control of emissions;
               (B) a change in the character of the emissions; or
               (C) an increase in the emission rate of any air contaminant.
          (2) Any person who requests permit amendments must receive prior
approval by the executive director or the commission, except as provided in §116.118

Page 77
of this title. Applications must be submitted with a completed Form PI-1 and are
subject to the requirements of §116.111 of this title (relating to General Application).
          (3) NOT IN SIP
          (4) Any person who applies for an amendment to a permit to construct a
new facility or modify an existing facility shall comply with the provisions in Chapter 39
of this title.
     (c) Permit alteration.
          (1) A permit alteration is:
               (A) a decrease in allowable emissions; or
               (B) any change from a representation in an application, general
condition, or special condition in a permit that does not cause:

Page 78
                    (i) a change in the method of control of emissions;
                    (ii) a change in the character of emissions; or
                    (iii) an increase in the emission rate of any air contaminant.
          (2) Requests for permit alterations that must receive prior approval by
the executive director are those that:
               (A) result in an increase in off-property concentrations of air
contaminants;
               (B) involve a change in permit conditions; or
               (C) affect facility or control equipment performance.
          (3) The executive director shall be notified in writing of all other permit
alterations not specified in paragraph (2) of this subsection.

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          (4) A request for permit alteration shall include information sufficient to
demonstrate that the change does not interfere with the owner or operator's previous
demonstrations of compliance with the requirements of §116.111(a)(2)(C) of this title.
          (5) Permit alterations are not subject to the requirements of
§116.111(a)(2)(C) of this title.
     (d) Permits by rule under Chapter 106 of this title (relating to Permits by Rule) in
lieu of permit amendment or alteration.
          (1) A permit amendment or alteration is not required if the changes to
the permitted facility qualify for an exemption from permitting or permit by rule
under Chapter 106 of this title unless prohibited by permit condition as provided in
§116.115 of this title (relating to General and Special Conditions).
          (2) All changes authorized under Chapter 106 of this title to a permitted
facility shall be incorporated into that facility's permit when the permit is amended or
renewed.
     (e) Changes to qualified facilities.

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          (1) Prior to determining if this subsection may be applied to a proposed
change to a facility, the following will apply:
               (A) The facility must be authorized under this chapter or Chapter
106 of this title.
               (B) A separate netting analysis shall be made for each proposed
change to determine the applicability of major New Source Review by demonstrating
that any increase in actual emissions is below the threshold for major modification as
defined in §116.12 of this title (relating to Nonattainment and Prevention of Significant
Deterioration Review Definitions). Proposed changes exceeding the major modification
threshold cannot be authorized under this subsection. This analysis shall meet the
definition and requirements of net emissions increase in §116.12 of this title.
          (2) Prior to changes under this subsection, facility owners or operators
will submit Form PI-E, Notification of Changes to Qualified Facilities, and the following
additional requirements will apply:
               (A) Facility owners or operators will simultaneously submit, where
applicable, an application for a permit revision for each permit issued under §116.111
of this title involved in the qualified facility transaction.

Page 81
               (B) Owners or operators of facilities authorized under Subchapter
F of this chapter (relating to Standard Permits) shall submit a revision to the
representations in the facility registration in accordance with §116.611 of this title
(relating to Registration to Use a Standard Permit).
               (C) Any applicable permit issued under §116.111 of this title will
be revised to reflect changes under this subsection to facilities authorized under
Chapter 106 of this title. If no applicable permit issued under §116.111 of this title is
involved in the qualified facility transaction then changes shall be certified by a
registration for an emission rate under §106.6 of this title (relating to Registration of
Emissions).
               (D) No allowable emission rate as defined in §116.17 of this title
(relating to Qualified Facility Definitions) shall be exceeded.
               (E) The facility has received a preconstruction permit or permit
amendment no earlier than 120 months before the change will occur, or uses control
technology that is at least as effective as the best available control technology (BACT) that the commission required or would have required for a facility of the same
class or type as a condition of issuing a permit or permit amendment 120 months
before the change will occur. There will be no reduction in emission control efficiency.

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          (3) Regardless of any other subsection of this section, a
physical or operational change may be made to a qualified facility if it can be
determined that the change does not result in:
               (A) a net increase in allowable emissions of any air contaminant;
and
               (B) the emission of any air contaminant not previously emitted.
          (4) In making the determination in paragraph (3) of this subsection, the
effect on emissions of the following shall be considered:
               (A) any air pollution control method applied to the qualified facility;
               (B) any decreases in allowable emissions from other qualified
facilities at the same commission air quality account that have received a
preconstruction permit or permit amendment no earlier than 120 months before the
change will occur; and

Page 83
               (C) any decrease in actual emissions from other qualified facilities
at the same commission air quality account that are not included in subparagraph (B)
of this paragraph.
          (5) The determination in paragraph (3) of this subsection shall be based
on the allowable emissions for air contaminant categories and any allowable emissions
for individual compounds. If a physical or operational change would result in
emissions of an air contaminant category or compound above the allowable emissions
for that air contaminant category or compound, there must be an equivalent decrease
in emissions at the same facility or a different facility at the same account.
               (A) The equivalent decrease in emissions shall be based on the
same time periods (e.g., hourly and 12-month rolling average rates) as the allowable
emissions for the facility at which the change will occur.
               (B) Emissions of different compounds within the same air
contaminant category may be interchanged. Emissions of substances that were, but are
not currently, listed as a volatile organic compound (VOC) by the United States
Environmental Protection Agency (EPA) may be substituted for emissions of
compounds currently listed by EPA as a VOC as referenced in §101.1 of this title
(relating to Definitions) provided the compound being used as a substitute is not

Page 84
regulated as a hazardous air pollutant and is not toxic. The substitution of current
VOCs for compounds that have been removed from the VOC list by EPA is prohibited.
               (C) For allowable emissions for individual compounds, any
interchange shall adjust the emission rates for the different compounds in accordance
with the ratio of the effects screening levels of the compounds. The effects screening
level shall be determined by the executive director.
               (D) For allowable emissions for air contaminant categories,
interchanges shall use the unadjusted emission rates for the different compounds.
               (E) The facility owner or operator shall demonstrate that the
change will not adversely affect ambient air quality.
               (F) An air contaminant category is a group of related compounds,
such as volatile organic compounds, particulate matter, nitrogen oxides, and sulfur
compounds.
          (6) Persons making changes to qualified facilities under this subsection
shall comply with the applicable requirements of §116.117 of this title (relating to
Documentation and Notification of Changes to Qualified Facilities).

Page 85
          (7) As used in this subsection, the term "physical and operational change"
does not include:
               (A) construction of a new facility; or
               (B) changes to procedures regarding monitoring, determination of
emissions, and recordkeeping that are required by a permit.
          (8) Additional air pollution control methods may be implemented for the
purpose of making a facility a qualified facility. The implementation of any additional
control methods to qualify a facility shall be subject to the requirements of this
chapter. The owner or operator shall:
               (A) utilize additional control methods that are as effective as BACT
required at the time the additional control methods are implemented; or
               (B) demonstrate that the additional control methods, although not
as effective as BACT, were implemented to comply with a law, rule, order, permit, or
implemented to resolve a documented citizen complaint.

Page 86
          (9) For purposes of this subsection and §116.117 of this title, the
following subparagraphs apply.
               (A) Intraplant trading means the consideration of decreases in
allowable and actual emissions from other qualified facilities in accordance with
paragraph (4) of this subsection.
               (B) The allowable emissions from facilities that were never
constructed shall not be used in intraplant trading.
               (C) The decreases in allowable and actual emissions shall be based
on emission rates for the same time periods (e.g., hourly and 12-month rolling average)
as the allowable emissions for the facility at which the change will occur and for which
an intraplant trade is desired.
               (D) Actual emissions shall be based on data that is representative
of the emissions actually achieved from a facility during the relevant time period (e.g.,
hourly or 12-month rolling average).
          (10) The existing level of control may not be lessened for a qualified facility.

Page 87
          (11) A separate netting analysis shall be performed for each proposed
change under this subsection.
     (f) Use of credits. Regardless of any other subsection of this
section, discrete emission reduction credits may be used to exceed permit allowables
as described in §101.376(b) of this title (relating to Discrete Emission Credit Use) if all
applicable conditions of §101.376 of this title are met. This subsection does not
authorize any physical changes to a facility.
**end §116.116**SIP effective November 13, 2020**TXd227**ay6**

6B1 §116.117.  Documentation and Notification of Changes to Qualified Facilities.
SIP effective October 11, 2016 (TXd186).
As adopted by TCEQ September 15, 2010 effective October 7, 2010 (6-79),
and submitted to EPA October 5, 2010 (TX-302), 
Regulations.gov document EPA-R06-OAR-2010-0861-0003 [TX112.03].
Approved by EPA September 9, 2016 (81 FR 62381) SIP effective October 11, 2016 (TXd186),
Regulations.gov docket EPA-R06-OAR-2010-0861 [TX112].
Explanation: SIP does not include 30 TAC Section 116.117(a)(4)(B).

     (a) Persons making changes under §116.116(e) of this title (relating to Changes to Facilities) shall maintain documentation at the plant site demonstrating that the changes satisfy §116.116(e) of this title. If the plant site is unmanned, the regional manager may authorize an alternative site to maintain the documentation. The documentation shall be made available to representatives of the commission upon request. The documentation shall include:
          (1) quantification of all emission increases and decreases associated with the physical or operational change;
          (2) a description of the physical or operational change;
          (3) a description of any equipment being installed; and
          (4) sufficient information as necessary to show that the project will not adversely affect ambient air quality and will comply as applicable with:
               (A) §116.150 and §116.151 of this title (relating to Nonattainment Review) and §§116.160 - 116.163 of this title (relating to Prevention of Significant Deterioration Review); or
               (B) NOT IN SIP 
     (b) Nothing in this section shall limit the applicability of any federal requirement.
***end TX§116.117 SIP effective October 11, 2016 (TXd186)***x6s***

6B1 §116.118.  Construction While Permit Amendment Application Pending.
SIP effective November 13, 2020.
New section adopted by TCEQ July 15, 2020 effective August 6, 2020 (6-91),
Submitted to EPA August 21, 2020 (TX-423),
Regulations.gov document EPA-R06-OAR-2020-0159-0010 [TX218.10], adobe page 87.
Approved by EPA October 14, 2020 (85 FR 64966), SIP effective November 13, 2020 (TXd227),
Regulations.gov docket EPA-R06-OAR-2020-0159 [TX218].
Explanation: none

Page 87
     (a) Purpose, applicability, and exclusions.
          (1) To the extent permissible under federal law and the requirements of
this section, an applicant for a permit amendment may, at their own risk, begin
construction related to the application if the executive director has completed the
technical review and issued a draft permit including the permit amendment.
          (2) An applicant may not begin construction under this section if the
facility that is the subject of the permit amendment is a concrete batch plant located

Page 88
within 880 yards of a property that is used as a residence. This limitation on
construction does not affect or supersede the designation of an affected person under
Texas Health and Safety Code (THSC), §382.056 or §382.058.
          (3) Any new facility or group of facilities, or changes to an existing facility
or group of facilities, that constitutes a new major stationary source or a major
modification, as defined in §116.12 of this title (relating to Nonattainment and
Prevention of Significant Deterioration Review Definitions) is not eligible for
construction under this section.
          (4) This section does not apply to the amendment of a Plant-wide
Applicability Limit issued under Subchapter C of this chapter (relating to Plant-wide
Applicability Limits).
          (5) Affected sources (as defined in §116.15(1) of this title (relating to
Section 112(g) Definitions)) subject to Subchapter E of this chapter (relating to
Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major
Sources (FCAA, §112(g), 40 CFR Part 63)) are not eligible for construction under this
section.
          (6) This section does not apply to qualified facility changes authorized
under §116.116(e) of this title (relating to Changes to Facilities).

Page 89
          (7) This section does not apply to requests, claims, registrations, or
applications for a standard permit under Subchapter F of this chapter (relating to
Standard Permits) or a permit by rule under Chapter 106 of this title (relating to
Permits by Rule).
          (8) This section does not relieve the applicant or project from any other
applicable requirements. An applicant seeking to begin construction under this section
shall comply with all other applicable state and federal requirements pertaining to an
application for a permit amendment (such as, but not limited to, requirements
concerning public notice and participation, federal applicability, emission control
technology, applicable distance limitations, etc.).
     (b) Public notice. An applicant seeking to begin construction under this section
shall comply with the provisions in Chapter 39 of this title (relating to Public Notice).
     (c) Prohibitions on facility operation and commission action.
          (1) Any facility constructed or modified under this section shall not be
operated until the commission has issued the final permit amendment authorizing the
construction or modification.

page 90
          (2) The commission may not consider construction begun under this
section in determining whether to grant the permit amendment sought in the
application.
**end §116.118**SIP effective November 13, 2020**TXd227**ay6**


6B1 §116.120.  Voiding of Permits.
SIP effective June 1, 2010 (TXd110).
Adopted by TCEQ August 20, 2003 effective September 14, 2003 (6-64)
Approved by EPA April 2, 2010 (75 FR 16671) SIP effective June 1, 2010 (TXd110), 
Regulations.gov docket EPA-R06-OAR-2008-0089 [TX077]

     (a)  A permit or permit amendment under this chapter is void if the permit holder does one of the following:
          (1)  fails to begin construction within 18 months of issuance, except as noted in subsection (b) of this section;
          (2)  discontinues construction for more than 18 consecutive months prior to completion; or
          (3)  fails to complete construction within a reasonable time.
     (b)  The executive director may grant extensions to begin construction. Permits issued to holders who have received extensions will be subject to revision based on best available control technology, lowest achievable emission rate, and netting or offsets as applicable.  A first extension of 18 months may be granted solely at the request of the permit holder.  One additional extension of up to 18 months may be granted if the permit holder demonstrates that emissions from the facility will comply with all rules and regulations of the commission and the intent of the TCAA, including protection of the public's health and physical property; and
           (1)  the permit holder is a party to litigation not of the permit holder's initiation regarding the issuance of the permit; or
           (2)  the permit holder has spent, or committed to spend, at least 10% of the estimated total cost of the project up to a maximum of $5 million.
     (c)  A permit holder granted an extension under subsection (b)(l) of this section may receive one subsequent extension if the permit holder meets the conditions of subsection (b)(2) of this section.
***end TX§116.120 SIP effective June 1, 2010 (TXd110)***r58***

6B1 §116.127. Actual to Projected Actual and Emissions Exclusion Test for Emissions.
SIP effective November 26, 2012 (TXd135).
As adopted by TCEQ February 9, 2011 effective March 3, 2011(6-81),
Approved by EPA October 25, 2012 (77 FR 65119), SIP effective November 26, 2012 (TXd135),
Regulations.gov docket EPA-R06-OAR-2011-0332 [TX118].

NOTE: What may appear to be a revision to Section 127 published in Federal Register May 9, 2018 (83 FR 21178) SIP effective June 8, 2018, Regulations.gov docket EPA-R06-OAR-2017-0124, is only a CFR correction which moves Section 127 from Division 2 to Division 1 in the CFR.  There is no change to Section 127 as approved by EPA October 25, 2012 (77 FR 65119) SIP effective November 26, 2012 (TXd135).

     (a) If projected actual emissions are used or emissions are excluded from the emission increase resulting from the project, the owner or operator shall document and maintain a record of the following information before beginning construction, and this information must be provided as part of the notification, certification, registration, or application submitted to the executive director to claim or apply for state new source review authorization for the project. If the emissions unit is an existing electric utility steam generating unit, the owner or operator shall provide a copy of this information to the executive director before beginning actual construction:
           (1) a description of the project;
           (2) identification of the facilities of which emissions of a federally regulated new source review pollutant could be affected by the project; and
           (3) a description of the applicability test used to determine that the project is not a major modification for any pollutant, including the baseline actual emissions, the projected actual emissions, the amount of emissions excluded from the project emissions increase and an explanation for why such amount was excluded, and any netting calculations, if applicable.
      (b) If projected actual emissions are used to determine the project emission increase at a facility, the owner or operator shall monitor the emissions of any regulated new source review pollutant that could increase as a result of the project at that facility and calculate and maintain a record of the annual emissions from that facility, in tons per year, on a calendar year basis for:
           (1) a period of five years following resumption of regular operations after the change; or
           (2) a period of ten years following resumption of regular operations after the change if the project increases the design capacity or potential to emit of that regulated new source review pollutant at that facility.
      (c) If the facility is an electric utility steam generating unit, the owner or operator shall submit a report to the executive director within 60 days after the end of each calendar year of which records must be maintained documenting the unit's annual emissions during the calendar year that preceded submission of the report.
      (d) If the facility is not an electric utility steam generating unit, the owner or operator shall submit a report to the executive director if the annual emissions from the project exceed the baseline actual emissions by a significant amount for that pollutant, and the emissions exceed the preconstruction projection for any facility. The report shall be submitted to the executive director within 60 days after the end of each calendar year. The report shall contain:
          (1) the name, address, and telephone number of the major stationary source; and
          (2) the calculated actual annual emissions.
     (e) The owner or operator of the facility shall make the information required to be documented and maintained by this section available for review upon request for inspection by the executive director, local air pollution control program, and the general public.
***end TX§116.127 SIP effective November 26, 2012 (TXd135) ***y5w***

**end 30 TAC 116 Subchapter B, Division 1, SIP effective November 13, 2020 (TXd227)**