(a) Emission caps. To establish a cap for a pollutant, the executive director will develop an emission cap for:
  (1) all facilities at an account; or
  (2) a designated group of facilities at an account.
(b) Notwithstanding subsection (a) of this section, the executive director reserves the right to exclude any facility from an emissions cap if necessary to ensure compliance with the permit or to ensure the protection of human health and the environment.
(c) Emissions will be calculated for each facility within an emission cap as follows:
  (1) Determination of control technology:
    (A) if the permit is used to authorize any facility, group of facilities, or account, or any change to existing facilities, that constitutes a new major stationary source or major modification for the pollutant as defined by §116.12 of this title (relating to Nonattainment and Prevention of Significant Deterioration Review Definitions), emissions shall be based on control technology determined in accordance with Subchapter B, Division 5 or 6 of this chapter (relating to Nonattainment Review Permits; and Prevention of Significant Deterioration Review, respectively) as applicable, at expected maximum capacity; or
    (B) based on application of best available control technology as defined in §116.10 of this title (relating to General Definitions), at expected maximum capacity.
  (2) pollutants emitted from facilities subject to lowest achievable emission rate review in accordance with Subchapter B, Division 5 of this chapter must be included in a separate emissions cap or listed as individual emission limitations.
  (3) the calculated emissions for all facilities within an emission cap will be summed.
  (4) a lower emission cap than that determined by paragraph (3) of this subsection may be proposed by the permit applicant if technical information is provided to demonstrate that it is feasible to operate in compliance with the proposed emission cap.
(d) Individual emission limitations. An individual emission limitation will be established in the same permit for each pollutant not included in an emission cap for facilities authorized by the flexible permit. In addition, an individual emission limitation may be established for a pollutant included in an emission cap when the expected capacity of a facility is less than the expected maximum capacity to prevent a facility from exceeding emission levels appropriate for the proposed controls.
(e) The permit shall clearly identify, by a table or other appropriate means, the facilities that are subject to an emission cap, and the facilities that are subject to individual emission limitations. A facility may be subject to both an emission cap and an individual emission limitation.
(f) Adjustment of emission cap. The executive director will use the following criteria and procedures for adjustment of a cap.
  (1) If a facility subject to an emission cap is shut down for a period longer than six months, the emission cap shall be adjusted by decreasing the emission cap by an amount that the shut down facility contributed to the original calculation of the emission cap. If a shut down facility is returned to operation, the emission cap shall be adjusted by increasing the emission cap by the amount that the facility contributed to the original calculation of the emission cap; however, the emission cap cannot be increased beyond the original emission cap amount.
  (2) If a facility is to be added to the flexible permit, a permit amendment is required to establish a revised emission cap. If an existing emission cap is to be increased as a result of adding a new facility or the modification of a facility within the emission cap, an amendment application is required.
  (3) An emission cap will be decreased for any facility, group of facilities, or account authorized by a flexible permit if that facility becomes subject to any new state or federal rule or regulation which would lower emissions or require an emission reduction. The adjustment will be made the next time the flexible permit is amended or altered. If an amendment to a flexible permit is not required to meet the new requirement, then within 60 days of making the change, the permittee must submit a request to alter the permit and include information describing how compliance with the new requirement will be demonstrated.

Source Note: The provisions of this §116.716 adopted to be effective December 8, 1994, 19 TexReg 9360; amended to be effective January 6, 2011, 35 TexReg 11909; amended to be effective July 31, 2014, 39 TexReg 5777