SECTION 116.118. Construction While Permit Amendment Application Pending

(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 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).

(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.

(2) The commission may not consider construction begun under this section in determining whether to grant the permit amendment sought in the application.

Source Note: The provisions of this §116.118 adopted to be effective August 6, 2020, 45 TexReg 5351