[Federal Register Volume 59, Number 4 (Thursday, January 6, 1994)]
[Proposed Rules]
[Pages 707-709]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-186]


[[Page Unknown]]

[Federal Register: January 6, 1994]


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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]
BILLING CODE 6560-50-M