Approval and Promulgation of Implementation Plan Texas State II Program

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[TX-22-1-5738; FRL-4821-9]

Approval and Promulgation of Implementation Plan Texas State II

Program

AGENCY: United States Environmental Protection Agency (EPA).

ACTION: Proposed rulemaking.

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SUMMARY: The EPA is taking action to approve the Texas Natural Resource

Conservation Commission State II State Implementation Plan (SIP), which

includes a SIP Supplement dated September 30, 1992, and Regulation V

(31 TAC Section 115 Subchapter C: Volatile Organic Compound Marketing

Operations), as a revision to the Texas SIP for ozone. On November 13,

1992, Texas submitted a SIP revision request to the EPA to satisfy the

Clean Air Act, as amended (1990). This SIP revision requires owners and

operators of gasoline dispensing facilities to install and operate

Stage II vapor recovery equipment in the four Texas ozone nonattainment

areas classified as moderate or worse. This revision applies to the

Texas counties of Brazoria, Chambers, Collin, Dallas, Denton, El Paso,

Fort Bend, Galveston, Hardin, Harris, Jefferson, Liberty, Montgomery,

Orange, Tarrant, and Waller.

DATES: Comments must be received by February 7, 1994.

ADDRESSES: Comments should be sent to James F. Davis at U.S. EPA Region

6, (6T-AP), 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733. The

State submittal and the technical support document (TSD) are available

for public review at the above address and at the Texas Natural

Resource Conservation Commission, Stage II Program, 12124 Park 35

Circle, Austin, Texas 78753. Interested persons wanting to examine

these documents should make an appointment with the appropriate office

at least 24 hours before the visiting day.

FOR FURTHER INFORMATION CONTACT:

James F. Davis at (214) 655-7584.

SUPPLEMENTARY INFORMATION:

Under section 182(b)(3) of the Clean Air Act (CAA), the EPA was

required to issue guidance as to the effectiveness of Stage II systems.

The EPA issued technical guidance in November 1991, and enforcement

guidance in December 1991, to meet this requirement.\1\ In addition, on

April 16, 1992, the EPA published the ``General Preamble for the

Implementation of Title I of the Clean Air Act Amendments of 1990''

(General Preamble) (57 FR 13498). The guidance documents and the

General Preamble interpret the Stage II statutory requirement and

indicate what the EPA believes a State submittal needs to include to

meet that requirement.

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\1\These two documents are entitled ``Technical Guidance--Stage

II Vapor Recovery Systems for Control of Vehicle Refueling Emissions

at Gasoline Dispensing Facilities'' (EPA-450/3-91-022) and

``Enforcement Guidance for Stage II Vehicle Refueling Control

Programs.''

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The EPA has designated four areas as ozone nonattainment in the

State of Texas. The Houston/Galveston/Brazoria ozone nonattainment area

is classified as severe and contains the following eight counties:

Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery,

and Waller. The Beaumont/Port Arthur ozone nonattainment area is

classified as serious and contains the following three counties:

Hardin, Jefferson, and Orange. The El Paso ozone nonattainment area is

classified as serious and contains the county of El Paso. The Dallas/

Fort Worth ozone nonattainment area is classified as moderate and

contains the following four counties: Collin, Dallas, Denton, and

Tarrant. The designations for ozone were published in the Federal

Register (FR) on November 6, 1991, and November 30, 1992, and have been

codified in the Code of Federal Regulations (CFR). See 56 FR 56694

(November 6, 1991) and 57 FR 56762 (November 30, 1992), codified at 40

CFR sections 81.300-81.437. Under section 182(b)(3) of the amended CAA,

Texas was required to submit Stage II vapor recovery rules for these

areas by November 15, 1992. On November 13, 1992, Governor Ann W.

Richards submitted to the EPA Stage II vapor recovery rules and a SIP

Supplement dated September 30, 1992, which were adopted by the State on

October 16, 1992. By today's action, the EPA is proposing to approve

this submittal. The EPA has reviewed the State submittal against the

statutory requirements and for consistency with the EPA guidance. A

summary of the EPA's analysis is provided below. In addition, a more

detailed analysis of the State submittal is contained in a TSD, dated

June 25, 1993, which is available from the Region 6 Office, listed

above.

I. Applicability

Under section 182(b)(3) of the CAA, States were required by

November 15, 1992, to adopt regulations requiring owners or operators

of gasoline dispensing systems to install and operate vapor recovery

equipment at their facilities. The amended CAA specifies that these

State rules must apply to any facility that dispenses more than 10,000

gallons of gasoline per month or, in the case of an independent small

business marketer, any facility that dispenses more than 50,000 gallons

of gasoline per month. Section 324 of the CAA defines an independent

small business marketer. The State has adopted a general applicability

requirement of 10,000 gallons per month and has not included a lower

applicability for independent small business marketers. However,

independent small business marketer which dispense less than 50,000

gallons have a provision for an extended compliance deadline.

As more fully discussed in the EPA's Enforcement Guidance and the

General Preamble (57 FR at 13514), the State has provided that the

gallons of gasoline dispensed per month will be based on the gasoline

throughput for each calendar month beginning January 1, 1991. The State

is interpreting this requirement to mean that if a facility exceeds the

throughput limits for any one month, the facility will be required to

install Stage II. While the State is not calculating the average volume

of gasoline dispensed per month for the two year period preceding the

adoption date, the EPA believes that the State's method will require

more gasoline dispensing facilities to comply with Stage II

requirements. In addition, the State has specified that the State II

requirements apply to all gasoline dispensing facilities, including

retail outlets and fleet fueling facilities, with throughput rates as

defined above. However, the State has exempted gasoline dispensing

equipment used exclusively for the fueling of aircraft, marine vessels,

or implements of agriculture. The EPA has determined that these limited

exemptions are acceptable in the Texas Stage II program for the

following reasons. Historically, the Stage II program was intended to

reduce refueling emissions for ``on-road'' motor vehicles. These

limited exemptions would not be considered to be on-road motor

vehicles. Also, refueling systems of gasoline powered vehicles such as

aircraft, marine vessels, and implements of agriculture are normally

designed with nonstandardized equipment for which Stage II systems

designed for on-road vehicle refueling facilities may not be

compatible. The acceptability of these limited exemptions does not

preclude the State from requiring refueling vapor recovery systems at

such facilities at a later date.

Section 324 establishes a statutory definition of an independent

small business marketer, which is fully set forth in the TSD. The State

has adopted the statutory definition of independent small business

marketer in its regulations.

The EPA finds the applicability requirements in the Texas Stage II

rule to be acceptable.

II. Implementation of Stage II

The CAA specifies the time by which certain facilities must comply

with the State regulation. For facilities that are not owned or

operated by an independent small business marketer, these times,

calculated from the time of State adoption of the regulation, are: (1)

Six months for facilities for which construction began after November

15, 1990, (2) one year for facilities that dispense greater than

100,000 gallons of gasoline per month, and (3) two years for all other

facilities. The Texas Stage II rule time schedule sets compliance dates

of May 15, 1993, November 15, 1993, and November 15, 1994, respectively

for the above three deadlines. Although Texas adopted its Stage II

regulations on October 16, 1992, the EPA believes it is appropriate to

accept the adoption date to be November 15, 1992.

The EPA is proposing to approve the submitted time table for the

following reasons. First, the CAA states that the adoption date must be

used to calculate the compliance schedule for Stage II implementation

at facilities. In this case, the EPA defines the adoption date to be

the date when the regulation and the rest of the SIP was required to be

submitted to the EPA on November 15, 1992. The compliance deadlines

triggered by this date begin within the time schedule specified by the

CAA. Secondly, remedying this deficiency by amending the compliance

schedule would cause further delay in the implementation of Stage II in

Texas. Lastly, the Texas rule otherwise fulfills the Stage II

requirements and the EPA believes it will provide substantial air

quality benefits to the regulated areas. Therefore, the EPA believes it

is in the public interest to approve and make enforceable this

requirement at the earliest time feasible.

In the Texas program, independent small business marketers of

gasoline, for which the monthly gasoline throughput is less than 50,000

gallons per month, may petition, no later than November 15, 1993, the

State's Executive Director for an extension of the compliance deadline

to December 22, 1998, or until on or more of the facility's gasoline

storage tanks are replaced and/or equipped with corrosive protection,

which is required by the Texas Natural Resource Conservation

Commission. This extension provision for independent small business

marketers of gasoline, for which the monthly gasoline throughput is

less than 50,000 gallons per month, is acceptable because the CAA does

not require Stage II systems to be installed on such facilities.

III. Additional Program Requirements

Consistent with the EPA's guidance, the State requires that Stage

II systems be tested and certified to meet a 95 percent emission

reduction efficiency. The EPA has indicated three acceptable methods of

demonstrating a 95 percent emission reduction efficiency: (1) A method

tested and approved by the California Air Resources Board (CARB); (2) a

testing program that is equivalent to the CARB program, that will be

conducted by the Program Oversight Agency or by a third party

recognized by the Program Oversight Agency, and submitted and approved

by the EPA for incorporation into the SIP; or (3) a system approved by

CARB. The State has chosen to use option three, a system approved by

CARB. The State requires sources to verify proper installation and

function of Stage II equipment through use of a liquid blockage test

and a leak test prior to system operation and at least every five years

or upon major modification of a facility (i.e., 75 percent or more

equipment change).

With respect to recordkeeping, the State has adopted those items

recommended in the EPA's guidance and specifies that sources subject to

Stage II must make these documents available upon request: (1) A copy

of the California Air Resources Board (CARB) Executive Order for the

specific Stage II vapor recovery system installed at the facility, (2)

results of verification tests, (3) equipment maintenance and compliance

file logs indicating compliance with manufacturer's specifications and

requirements, (4) training certification files, and (5) inspection and

compliance records. In addition, the State has committed in their SIP

supplement to maintain a general compliance file, including information

such as facility name, address, phone number, owner/operator names, a

State assigned reference number, date of initial compliance with the

regulations, number of pumps and monthly gasoline throughput. The State

has also established an inspection function consistent with that

described in the EPA's guidance. The State commits to conducting

inspections of facilities including a visual inspection of the Stage II

equipment and of the required records and a functional test of the

Stage II equipment. According to the Supplement, the State shall

inspect each facility at least one time per year with follow-up

inspections at noncomplying facilities. Finally, the State has

established procedures for enforcing violations of the Stage II

requirements, and has committed to establish a penalty schedule in the

SIP. A detailed draft penalty schedule has already been developed by

the State. Administrative penalties may be assessed of up to $10,000

per day per violation and civil penalties of up to $25,000 per day per

violation. The EPA finds the State's program for implementation and

enforcement of the Stage II program to be consistent with the EPA

guidelines.

Rulemaking Action

Since the EPA finds that the State has adopted a Stage II SIP in

accordance with section 182(b)(3) of the CAA, as interpreted in EPA's

guidance, the EPA is proposing to approve the submittal as meeting the

requirements of section 182(b)(3).

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any SIP. Each request for revision to a SIP shall be

considered in light of specific technical, economical, and

environmental factors and in relation to relevant statutory and

regulatory requirements.

Regulatory Process

Under the Regulatory Flexibility Act, 5 U.S.C. section 600 et.

seq., the EPA must prepare a regulatory flexibility analysis assessing

the impact of any proposed or final rule on small entities (5 U.S.C.

sections 603 and 604). Alternatively, the EPA may certify that the rule

will not have a significant impact on a substantial number of small

entities. Small entities include small businesses, small not-for-profit

enterprises, and government entities with jurisdiction over populations

of less than 50,000.

SIP approvals under section 110 and subchapter I, part D of the CAA

do not create any new requirements, but simply approve requirements

that the State is already imposing. Therefore, because the Federal SIP

approval does not impose any new requirements, I certify that it does

not have a significant impact on any small entities affected. Moreover,

due to the nature of the Federal-State relationship under the CAA,

preparation of a regulatory flexibility analysis would constitute

Federal inquiry into the economic reasonableness of State action. The

CAA forbids the EPA to base its actions concerning SIPs on such grounds

(Union Electric Co. v. U.S.E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976);

42 U.S.C. section 7410(a)(2).

This action has been classified as a Table Two action by the

Regional Administrator under the procedures published in the FR on

January 19, 1989 (54 FR 2214-2225). On January 6, 1989, the Office of

Management and Budget (OMB) waived Table Two and Table Three SIP

revisions from the requirements of section three of Executive Order

12291 for a period of two years (54 FR 2222). The EPA has submitted a

request for a permanent waiver for Table Two and Table Three SIP

revisions. The OMB has agreed to continue the temporary waiver until

such time as it rules on the EPA's request. This request is still

applicable under Executive Order 12866.

List of Subjects

40 CFR Part 52

Air pollution control; Hydrocarbons; Environmental protection;

Incorporation by reference; Intergovernmental relations; Ozone;

Reporting and recordkeeping requirements; Volatile organic compounds.

40 CFR Part 81

Air, pollution, control.

Authority: 42 U.S.C. 7401-7671q.

Dated: November 24, 1993.

W.B. Hathaway,

Acting Regional Administrator.

[FR Doc. 94-186 Filed 1-5-94; 8:45 am]

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