|(a) Representations and conditions. The following are
the conditions upon which a permit, special permit, or special exemption
(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 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) Any person who applies for an amendment to a permit
to construct or reconstruct an affected source (as defined in §116.15(1)
of this title (relating to Section 112(g) Definitions)) under Subchapter
E of this chapter (relating to Hazardous Air Pollutants: Regulations
Governing Constructed or Reconstructed Major Sources (FCAA, §112(g),
40 CFR Part 63)) shall comply with the provisions in Chapter 39 of
this title (relating to Public Notice).
(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
(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
(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.
(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
(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.
(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
(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
(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
(B) the emission of any air contaminant not previously
(4) In making the determination in paragraph (3) of
this subsection, the effect on emissions of the following shall be
(A) any air pollution control method applied to the
(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
(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
(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 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
(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).
(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
(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
(10) The existing level of control may not be lessened
for a qualified facility.
(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.
|Source Note: The provisions of this §116.116 adopted to be effective July 8, 1998, 23 TexReg 6973; amended to be effective September 23, 1999, 24 TexReg 8296; amended to be effective September 4, 2000, 25 TexReg 8668; amended to be effective October 7, 2010, 35 TexReg 8944; amended to be effective August 6, 2020, 45 TexReg 5351