(a) As specified in those subchapters, Subchapters H and K of this chapter (relating to Applicability and General Provisions; and Public Notice of Air Quality Permit Applications, respectively) apply to applications for:
  (1) new air quality permits under Chapter 116, Subchapter B of this title (relating to New Source Review Permits);
  (2) a new major source or a major modification for facilities subject to the requirements of Chapter 116, Subchapter B, Division 5 or 6 of this title (relating to New Source Review Permits, Nonattainment Review Permits and Prevention of Significant Deterioration Permits);
  (3) air quality permit amendments under Chapter 116, Subchapter B of this title when the amendment involves:
    (A) a change in character of emissions or release of an air contaminant not previously authorized under the permit;
    (B) a facility not affected by THSC, §382.020, where the total emissions increase from all facilities to be authorized under the amended permit exceeds public notice de minimis levels by being greater than any of the following levels:
      (i) 50 tpy of carbon monoxide (CO);
      (ii) ten tpy of sulfur dioxide (SO2);
      (iii) 0.6 tons per year (tpy) of lead; or
      (iv) five tpy of nitrogen oxides (NO X ), volatile organic compounds (VOC), particulate matter (PM), or any other air contaminant except carbon dioxide, water, nitrogen, methane, ethane, hydrogen, and oxygen;
    (C) a facility affected by THSC, §382.020, where the total emissions increase from all facilities to be authorized under the amended permit exceeds significant levels for public notice by being greater than any of the following levels:
      (i) 250 tpy of CO or NOX ;
      (ii) 25 tpy of VOC, SO2, PM, or any other air contaminant except carbon dioxide, water, nitrogen, methane, ethane, hydrogen, and oxygen;
      (iii) a new major stationary source or major modification threshold as defined in §116.12 of this title (relating to Nonattainment and Prevention of Significant Deterioration Review Definitions); or
      (iv) a new major stationary source or major modification threshold, as defined in 40 Code of Federal Regulations (CFR), §52.21, under the new source review requirements of the Federal Clean Air Act (FCAA), Part C (Prevention of Significant Deterioration); or
    (D) other amendments when the executive director determines that:
      (i) there is a reasonable likelihood for emissions to impact a nearby sensitive receptor;
      (ii) there is a reasonable likelihood of high nuisance potential from the operation of the facilities;
      (iii) the application involves a facility in the lowest classification under Texas Water Code, §5.753 and §5.754 and the commission's rules in Chapter 60 of this title (relating to Compliance History); or
      (iv) there is a reasonable likelihood of significant public interest in a proposed activity;
  (4) new air quality flexible permits under Chapter 116, Subchapter G of this title (relating to Flexible Permits);
  (5) air quality permit amendments to flexible permits under Chapter 116, Subchapter G of this title when the amendment involves:
    (A) change in character of emissions or release of an air contaminant not previously authorized under the permit;
    (B) a facility not affected by THSC, §382.020, where the total emissions increase from all facilities to be authorized under the amended permit exceeds public notice de minimis levels by being greater than any of the following levels:
      (i) 50 tpy of carbon monoxide (CO);
      (ii) ten tpy of sulfur dioxide (SO2);
      (iii) 0.6 tons per year (tpy) of lead; or
      (iv) five tpy of nitrogen oxides (NO X ), volatile organic compounds (VOC), particulate matter (PM), or any other air contaminant except carbon dioxide, water, nitrogen, methane, ethane, hydrogen, and oxygen;
    (C) a facility affected by THSC, §382.020, where the total emissions increase from all facilities to be authorized under the amended permit exceeds significant levels for public notice by being greater than any of the following levels:
      (i) 250 tpy of CO or NOX ;
      (ii) 25 tpy of VOC, SO2, PM, or any other air contaminant except carbon dioxide, water, nitrogen, methane, ethane, hydrogen, and oxygen;
      (iii) a new major stationary source or major modification threshold as defined in §116.12 of this title; or
      (iv) a new major stationary source or major modification threshold, as defined in 40 Code of Federal Regulations (CFR), §52.21, under the new source review requirements of the Federal Clean Air Act (FCAA), Part C (Prevention of Significant Deterioration); or
    (D) other amendments when the executive director determines that:
      (i) there is a reasonable likelihood for emissions to impact a nearby sensitive receptor;
      (ii) there is a reasonable likelihood of high nuisance potential from the operation of the facilities;
      (iii) the application involves a facility in the lowest classification under Texas Water Code, §5.753 and §5.754 and the commission's rules in Chapter 60 of this title; or
      (iv) there is a reasonable likelihood of significant public interest in a proposed activity;
  (6) renewal of air quality permits under Chapter 116, Subchapter D of this title (relating to Permit Renewals);
  (7) applications subject to the requirements of Chapter 116, Subchapter E of this title (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFR Part 63)), whether for construction or reconstruction;
  (8) applications for the establishment or renewal of, or an increase in, a plant-wide applicability limit permit under Chapter 116, Subchapter C of this title (relating to Plant-Wide Applicability Limits).
  (9) applications for multiple plant permits (MPPs) under Chapter 116, Subchapter J of this title (relating to Multiple Plant Permits);
  (10) applications for permits, registrations, licenses, or other type of authorization required to construct, operate, or authorize a component of the FutureGen project as defined in §91.30 of this title (relating to Definitions), submitted on or before January 1, 2018, are subject to the public notice requirements of Chapter 91 of this title (relating to Alternative Public Notice and Public Participation Requirements for Specific Designated Facilities) in addition to the requirements of this chapter, unless otherwise specified in Chapter 91 of this title.
  (11) concrete batch plants without enhanced controls authorized by an air quality standard permit adopted by the commission under Chapter 116, Subchapter F of this title (relating to Standard Permits), unless the plant is to be temporarily located in or contiguous to the right-of-way of a public works project; and
  (12) change of location or relocation of a portable facility, consistent with the requirements of §116.178 of this title (relating to Relocations and Changes of Location of Portable Facilities).
(b) Regardless of the applicability of subsection (a) of this section, Subchapters H and K of this chapter do not apply to the following applications where notice or opportunity for contested case hearings is not otherwise required by law:
  (1) applications under Chapter 122 of this title (relating to Federal Operating Permits Program);
  (2) applications under Chapter 116, Subchapter F of this title, except applications for concrete batch plants authorized by standard permit as referenced in subsection (a)(11) of this section; and
  (3) registrations under Chapter 106 of this title (relating to Permits by Rule).

Source Note: The provisions of this §39.402 adopted to be effective June 24, 2010, 35 TexReg 5198; amended to be effective May 14, 2020, 45 TexReg 3060