[Federal Register Volume 59, Number 73 (Friday, April 15, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-8971]
[[Page Unknown]]
[Federal Register: April 15, 1994]
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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]
BILLING CODE 6560-50-F
