[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