Approval and Promulgation of Implementation Plan Texas Stage II Program

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TX-22-1-6239; FRL-4856-8]

Approval and Promulgation of Implementation Plan Texas Stage II

Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

Conservation Commission (TNRCC) Stage II State Implementation Plan

(SIP), which includes a SIP Supplement dated September 30, 1992, and

Regulation V, 31 TAC Sec. Sec. 115.241-115.249, Control of Vehicle

Refueling Emissions (Stage II) at Motor Vehicle Fuel Dispensing

Facilities, 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

requirement of section 182(b)(3) of the Clean Air Act, as amended

(1990). The Texas Stage II 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. On January 6, 1994, the EPA published a

notice of proposed rulemaking (NPR) for the State of Texas. The NPR

proposed approval of the Texas Stage II SIP submitted by the State. No

public comments were received on the NPR; therefore, the EPA is

publishing this final action.

EFFECTIVE DATE: This final rule will become effective on May 16, 1994.

ADDRESSES: Copies of the State's submittals and the EPA's technical

support document (TSD) are available for public review at U.S.

Environmental Protection Agency Region 6, (6T-AP), 1445 Ross Avenue,

suite 700, Dallas, Texas 75202-2733. In addition, Texas' submittal is

available at the TNRCC, 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. A

copy of this revision to the Texas SIP is also available for inspection

at: Air Docket 6102, 401 M Street, SW., Washington DC 20460.

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 81.300 through 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 approving 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.

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 marketers which dispense lessthan 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 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 Stage 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.

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 approving 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 one 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.

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

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

by the 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 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.

Response to Comments

On January 6, 1994 (59 FR 707), the EPA published a notice of

proposed rulemaking (NPR) for the State of Texas. The NPR proposed

approval of the Texas Stage II SIP submitted by the State. No public

comments were received on the NPR.

Final 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 approving 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.

As noted elsewhere in this action, the EPA received no adverse

public comment on the proposed action. As a direct result, the Regional

Administrator has reclassified this action from Table Two to Table

Three under the processing procedures published in the FR on January

19, 1989 (54 FR 2214), and revisions to these procedures issued on

October 4, 1993, in an EPA memorandum entitled ``Changes to State

Implementation Plan (SIP) Tables.''

Regulatory Process

Under the Regulatory Flexibility Act, 5 U.S.C. 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. 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. 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), as revised by an October 4, 1993,

memorandum from Michael H. Shapiro, Acting Assistant Administrator for

Air and Radiation. A future document will inform the general public of

these tables. 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 two years.

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

waiver until such time as it rules on the EPA's request. This request

continues in effect under Executive Order 12866, which superseded

Executive Order 12291 on September 30, 1993.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Hydrocarbons,

Incorporation by reference, Intergovernmental relations, Ozone,

Reporting and recordkeeping requirements, Volatile organic compounds.

Note: Incorporation by reference of the SIP for the State of

Texas was approved by the Director of the FR on July 1, 1982.

Dated: March 22, 1994.

Joe D. Winkle,

Acting Regional Administrator.

40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

1. The authority citation for part 52 continues to read as follows:

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

Subpart SS--Texas

2. Section 52.2270 is amended by adding paragraph (c)(81) to read

as follows:

Sec. 52.2270 Identification of plan.

* * * * *

(c) * * *

(81) A revision to the Texas SIP to include revisions to Texas

Regulation V, 31 TAC Sec. Sec. 115.241-115.249-Control of Vehicle

Refueling Emissions (Stage II) at Motor Vehicle Fuel Dispensing

Facilities adopted by the State on October 16, 1992, effective November

16, 1992, and submitted by the Governor by cover letter dated November

13, 1992.

(i) Incorporation by reference.

(A) Revisions to Texas Regulation V, 31 TAC Sec. Sec. 115.241-

115.249-Control of Vehicle Refueling Emissions (Stage II) at Motor

Vehicle Fuel Dispensing Facilities, effective November 16, 1992.

(B) Texas Air Control Board Order No. 92-16, as adopted October 16,

1992.

(ii) Additional materials.

(A) September 30, 1992, narrative plan addressing: general

requirements, definitions, determination of regulated universe,

certification of approved vapor recovery systems, training, public

information, recordkeeping, requirements for equipment installation and

testing, annual in-use above ground inspections, program penalties,

resources, and benefits.

[FR Doc. 94-8971 Filed 4-14-94; 8:45 am]

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