Part 1.
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
Chapter 115.
CONTROL OF AIR POLLUTION FROM VOLATILE ORGANIC COMPOUNDS
Subchapter C. VOLATILE ORGANIC COMPOUND TRANSFER OPERATIONS
4.
CONTROL OF VEHICLE REFUELING EMISSIONS (STAGE II) AT MOTOR VEHICLE FUEL DISPENSING FACILITIES
The Texas Commission on Environmental Quality (TCEQ, commission,
or agency) proposes amendments to §§115.240, 115.242 - 115.246;
new §115.241; and repeal of §§115.241, 115.247 and
115.249.
If adopted, the commission will submit the amendments, new section,
and repeals to the United States Environmental Protection Agency (EPA)
as a proposed revision to the State Implementation Plan (SIP).
Background and Summary of the Factual Basis for the Proposed Rules
Under the Federal Clean Air Act (FCAA) amendments of 1990, states
were required to submit a revision to the SIP no later than November
15, 1992, that included a Stage II Vapor Recovery Program to control
gasoline vapors from the refueling of motor vehicles. A Stage II vapor
recovery SIP was first approved for Texas on October 16, 1992, and
later revised on November 10, 1993. The Stage II Vapor Recovery Program
involves the use of technology that prevents gasoline vapors from
escaping during refueling. Gasoline vapors are volatile organic compounds
(VOC) that react with nitrogen oxides in the presence of sunlight
to form ozone. As part of the control strategy for ozone attainment,
the EPA mandated that Stage II refueling requirements apply to all
public and private gasoline dispensing facilities (GDFs) that dispense
10,000 gallons or more of gasoline per month. The TCEQ applied a more
stringent throughput standard in the 16 ozone nonattainment counties
by requiring all GDFs constructed after November 15, 1992, to install
Stage II vapor recovery regardless of throughput. The original Stage
II vapor recovery rules relied upon the California Air Resources Board
(CARB) certification procedures for vapor recovery equipment. The
Stage II SIP was revised in 2002 to require more frequent testing
and more on-site evaluation of testing performed on vapor recovery
systems at GDFs as well as a phase-in schedule to retrofit or install
onboard-refueling vapor-recovery (ORVR) compatible Stage II vapor
recovery systems. Stage II vapor system efficiency was compromised
by ORVR equipped vehicles unless the system had ORVR compatible hardware.
The Stage II SIP was then revised on March 23, 2005, to offer an expanded
definition for "ORVR compatible" that allowed for the use of other
technologies for controlling gasoline vapors. On June 27, 2007, the
Stage II SIP was also revised to add language to exempt facilities
from installing Stage II equipment if the facility could demonstrate
that refueling at that facility involved a fleet of 95% or more ORVR-equipped
vehicles. This SIP is still under consideration by the EPA and has
not been approved. The EPA expressed concerns that the language justifying
the exemption needed to be more descriptive and explanatory. If this
proposed rulemaking is adopted by the commission and the subsequent
submitted SIP revision is approved by EPA, the commission will request
the withdrawal of the June 27, 2007, pending SIP submittal since revisions
to that SIP will no longer be necessary.
FCAA, §202(a)(6) also provides that the EPA may revise or
waive the application of Stage II requirements if the EPA determines
that ORVR is in widespread use through the motor vehicle fleet. Recently,
the EPA finalized a rulemaking (published in the May 16, 2012,
Federal Register,
77 FR 28772) for 40 Code
of Federal Regulations (CFR) Part 51, determining that vehicle ORVR
technology is in widespread use for the purposes of controlling motor
vehicle refueling emissions throughout the motor vehicle fleet. Vehicle
ORVR systems are passive systems that force gasoline vapors displaced
from a vehicle's fuel tank during refueling to be directed into a
carbon canister holding system within the vehicle and ultimately to
the engine where the vapors are consumed. The EPA required ORVR systems
to be phased in beginning with 1998 model-year light-duty gasoline
vehicles and since 2006, all new light- and medium-duty gasoline vehicles
are equipped with ORVR. An initial analysis using the EPA Motor Vehicle
Emissions Simulator 2010a model shows that the benefits from ORVR
alone will be greater than the benefits from Stage II alone by the
year 2010 in the Houston-Galveston-Brazoria (HGB) area, 2012 in the
Dallas-Fort Worth (DFW) area, 2013 in the Beaumont-Port Arthur (BPA)
area, and 2014 in the El Paso area. Vehicle ORVR systems are monitored
through a vehicle's on-board diagnostic system making the system much
more cost-effective than the required monitoring and testing of Stage
II systems.
The determination that ORVR technology is in widespread use allows
the EPA to waive the requirement for states to implement Stage II
gasoline vapor recovery systems at GDFs in nonattainment areas classified
as serious and above for the ozone National Ambient Air Quality Standard
(NAAQS). States that have implemented a Stage II program may revise
their Stage II SIP demonstrating that the air quality will be maintained
after removing the Stage II equipment. The proposed rule revision
would revise Chapter 115, Subchapter C, Division 4 to specify that
owners of new GDFs are not required to install Stage II equipment
and to require owners of existing GDFs in the current program areas
to properly decommission Stage II equipment. According to the EPA's
guidance document,
Guidance on Removing Stage
II Gasoline Vapor Control Programs from State Implementation Plans
and Assessing Comparable Measures,
issued on August 7, 2012,
the commission will need to demonstrate under FCAA, §110(l) that
the air quality will not be affected by the decommissioning of, or
failure to install, Stage II equipment. This demonstration will be
incorporated into the corresponding SIP revision and is discussed
further in the
Demonstrating Noninterference
under Federal Clean Air Act, Section 110(l)
portion of this
preamble.
Demonstrating Noninterference under Federal
Clean Air Act, Section 110(l)
The Stage II program is a FCAA-specified VOC control strategy for
certain ozone nonattainment areas. Under FCAA, §110(l), the EPA
cannot approve a SIP revision if it would interfere with attainment
of the NAAQS, reasonable further progress toward attainment, or any
other applicable requirement of the FCAA. The EPA has to approve a
SIP revision that removes or modifies Stage II gasoline refueling
vapor control measure(s) if the EPA concludes that a state's submittal
provides that the removal of Stage II controls would not interfere
with attainment of the NAAQS, reasonable further progress, or any
other applicable requirement of the FCAA. The executive director has
performed an assessment of the exact amount of benefit loss from removing
Stage II and any effect on air quality programs in the four Texas
Stage II areas using the method documented in the EPA's
Guidance on Removing Stage II Gasoline Vapor Control
Programs from State Implementation Plans and Assessing Comparable
Measures,
August 7, 2012. An analysis for years 2012 through
2030 found that for all years the losses represent less than one-half
of one percent of the total VOC inventory. The benefit losses for
removing Stage II are small in 2012 and decrease rapidly as the percentage
of vehicles equipped with ORVR increase over time. The assessment
found that small changes to the VOC inventories due to the removal
of Stage II do not significantly change any of the results of the
Texas air quality plans. The detailed analysis to demonstrate that
removal of Stage II requirements does not interfere with attainment
or maintenance of the NAAQS will be included in the Stage II SIP revision
(Project Number 2013-002-SIP-NR) that corresponds with this rule revision.
Section by Section Discussion
§115.240, Stage II Vapor Recovery
Definitions and List of California Air Resources Board Certified Stage
II Equipment
The commission proposes to amend §115.240 by adding the definitions
for "decommission" and "gasoline dispensing facility." The term "decommission"
would be defined as the permanent removal of Stage II vapor recovery
controls at a GDF. The term "gasoline dispensing facility" would be
defined as a location that dispenses gasoline to motor vehicles and
includes retail outlets and private and commercial outlets. The definitions
in this section would be re-numbered as needed.
§115.241, Emission Specifications
The commission proposes the repeal of existing §115.241. The
emission specifications in §115.241 would no longer be necessary
because Stage II equipment would not be required to be installed at
any GDF after the adoption of this proposed rulemaking. This section
requires that the transfer of gasoline from a stationary storage container
to a motor vehicle fuel tank be allowed only if an approved Stage
II vapor recovery system has been installed at the GDF. Owners of
GDFs must maintain their Stage II equipment according to §115.242,
until they complete decommissioning which ensures that the emissions
specifications of this section continue to be met.
§115.241, Decommissioning of Stage
II Vapor Recovery Equipment
The commission proposes new §115.241 to provide for the time
line and process for decommissioning of Stage II vapor recovery controls
at GDFs. The new section would establish that the decommissioning
process may begin 30-calendar days after the EPA approval of the repeal
of the Stage II vapor recovery requirement and of the decommissioning
requirement and the EPA approval of the revised corresponding SIP
revision. The 30-calendar day time frame would allow TCEQ regional
office staff, licensed contractors, and owners and operators of GDFs
to coordinate decommissioning activities in an affected area. The
commission is proposing this delayed implementation for decommissioning
because the EPA has stipulated that Stage II controls cannot be removed
until the EPA has approved a State's Stage II decommissioning rule
and SIP revisions.
The new language would include notification requirements and procedural
activities that must occur during the decommissioning process. Owners
and operators of GDFs electing to decommission their Stage II vapor
recovery would be required to notify the appropriate TCEQ regional
office and local government with jurisdiction where the GDF is located
30-calendar days prior to the beginning of the activity. The notification
would provide information on the GDF, the owner or operator of the
GDF, the contractor who will perform the decommissioning, and the
type of system installed at the GDF. The proposed requirements include
the proper procedures from disconnecting and capping parts of the
system and a list of test procedures to ensure the prevention of leaking
of vapors and fluids. The TCEQ plans to develop a checklist, Stage
II Decommissioning Checklist and Submittal Form, that will include
all applicable decommissioning requirements included in this proposed
rulemaking that must be performed and completed. The proposed requirements
were developed using the Decommissioning Stage II Vapor Recovery Piping
section in the Petroleum Equipment Institute's (PEI) publication,
Recommended Practices for Installation and Testing
of Vapor Recovery Systems at Vehicle-Fueling Sites,
PEI/RP300-09,
as a reference. PEI's practices are generally accepted and regarded
by industry stakeholders as the appropriate methods for successfully
decommissioning the equipment.
The section would also provide new requirements for closing out
all Stage II activities, including decommissioning by the affected
GDF. These requirements would include notification of completed decommissioning
and maintaining the notification forms that include the names of licensed
contractors used in the decommissioning of Stage II equipment at the
GDF.
§115.242, Control Requirements
The commission proposes the revision to §115.242 by providing
that owners of newly constructed GDFs after May 16, 2012, and owners
and operators of GDFs, that as of May 16, 2012, were exempt from installing
Stage II vapor recovery due to an exemption from the requirements
because of low monthly gasoline throughput, would no longer have to
install Stage II vapor recovery equipment. Owners and operators of
GDFs would have the option of decommissioning Stage II equipment under
the requirements proposed in §115.241 of this chapter, or continuing
to operate with the current Stage II equipment until the mandatory
removal date of August 31, 2018. The proposed mandatory removal date
was established after stakeholders expressed that the commission provide
five to six years prior to decommissioning to allow for Stage II equipment
installed at the time of the EPA's rule being finalized to be used
through its expected life use. The mandatory date has also been established
since finding compliant replacement equipment will be more difficult
and the number of licensed testers will be reduced which will make
it difficult for owners and operators of GDFs with Stage II equipment
to comply with existing requirements. The TCEQ is requesting comment
on the mandatory decommissioning date of August 31, 2018.
The proposed language also states that if an owner or operator
elects to retain the Stage II vapor controls, the GDF would continue
to meet the requirements of this division, until the Stage II vapor
controls are properly removed from the GDF. To address the voluntary
installation of Stage II equipment at GDFs not located in the affected
counties, new language would be incorporated that would require all
owners of GDFs, regardless of location in the state to remove all
Stage II equipment by August 31, 2018. The proposed language would
replace existing language that is being proposed for repeal that requires
all GDFs in the counties listed in §115.249 to comply with this
division. This rule revision proposes that no GDF in any county would
have Stage II equipment installed or operational after August 31,
2018. Voluntary Stage II installations at GDFs outside of the affected
counties have not been included in any modeling for past SIP activities
and have no impact on the proposed SIP revision affected by this rulemaking.
The proposed revisions to §115.242 would also delete paragraphs
(10) - (12) because GDFs would no longer need to meet these requirements.
Paragraph (10) corresponds to exemptions in §115.247 which is
also proposed for repeal. Paragraph (11) relates to the installation
of approved systems in the case that CARB certification of a previously
installed system was revoked. Finally, paragraph (12) requires facilities
to notify the regional office with jurisdiction of any Stage II vapor
recovery system installation.
§115.243, Alternate Control Requirements
The proposed revision to §115.243 would update references
to §115.242, which would be revised to authorize the decommissioning
of Stage II vapor controls.
§115.244, Inspection Requirements
The proposed revision to §115.244 would update references
to §115.242, which would be revised to authorize the decommissioning
of Stage II vapor controls.
§115.245, Testing Requirements
The commission proposes to amend §115.245 to require owners
of GDFs that elect to install, repair, replace, or retain the Stage
II equipment after the date that decommissioning is authorized, but
before the mandatory removal date, would still be required to comply
with this section, because the Stage II equipment would continue to
be maintained and tested to ensure it is working properly and capturing
gasoline vapors.
§246.246, Recordkeeping Requirements
The proposed revision to §115.246 would add the Stage II decommissioning
notifications, records sufficient to demonstrate compliance with decommissioning
requirements, and test results to recordkeeping items that would be
maintained on site. Although other recordkeeping requirements in this
subchapter are only required to be maintained for two years, the high
level of decommissioning activity especially as August 31, 2018, draws
near would require inspections and investigations beyond a two-year
time frame.
§115.247, Exemptions
The commission is proposing to repeal §115.247, because exemptions
from the Stage II requirements would no longer be applicable to this
division. Since Stage II would no longer be required, the exemptions
for GDFs that dispense gasoline to aircraft, watercraft, and agricultural
equipment; GDFs that began construction before November 15, 1992,
and dispense less than 10,000 gallons a month; and GDFs that refuel
a motor fleet that is 95% ORVR equipped would no longer be needed.
The proposed language in §115.242(a) makes clear that GDFs that
did not have Stage II vapor controls installed as of May 16, 2012
are not subject to this division. Therefore, GDFs that qualified for
these exemptions would not be subject to the rule by the proposed
repeal of this exemption section.
§115.249, Counties and Compliance
Schedules
The commission is proposing to repeal §115.249, because Stage
II would no longer be required upon EPA approval of the proposed SIP
revision at GDFs in Brazoria, Chambers, Collin, Dallas, Denton, El
Paso, Fort Bend, Galveston, Harris, Hardin, Jefferson, Liberty, Montgomery,
Orange, Tarrant, and Waller Counties. Additionally, GDFs in these
counties have already met the compliance date of April 1, 2007, to
become ORVR compatible.
Fiscal Note: Costs to State and Local Government
Jeffrey Horvath, Analyst in the Strategic Planning and Assessment
Section, has determined that for the first five-year period the proposed
rules are in effect, fiscal implications are anticipated for the agency
and for some units of state or local government that participate in
the Stage II Vapor Recovery Program in nonattainment areas as a result
of the administration or enforcement of the proposed rules. Cost savings
may be significant for those businesses or local governments that
do not have to install vapor recovery equipment at GDFs that they
own or operate. In addition, beginning in 2018 and perhaps earlier,
the University of Texas at Arlington and four other units of local
government currently under contract with the agency to conduct Stage
II Vapor Recovery Program inspections, monitoring, and enforcement
activities may see reductions in funding if their contracts are terminated
or modified as a result of the implementation of the proposed rules.
Local governments that own or operate GDFs will have some costs to
decommission their Stage II vapor recovery equipment but are expected
to experience cost savings in the long run. The agency is anticipated
to experience cost savings in 2018 and perhaps earlier due to the
proposed elimination of the requirement to inspect certain gasoline
vapor recovery systems installed at GDFs in nonattainment areas.
The Stage II Vapor Recovery Program involves the use of technology
that prevents gasoline vapors from escaping during refueling. Gasoline
vapors are VOC emissions that can react with nitrogen oxides in the
presence of sunlight to form ozone. The EPA recently finalized a rulemaking
that determined that because vehicle ORVR technology is in widespread
use for the purposes of controlling motor vehicle refueling emissions,
Stage II vapor recovery systems are no longer necessary at GDFs in
nonattainment areas. Because of these vehicle systems, the EPA will
allow states to waive the requirement for Stage II vapor recovery
systems to be installed at GDFs in nonattainment areas classified
as serious and above for the ozone NAAQS. The EPA will also require
states with a Stage II program to revise their Stage II SIP to demonstrate
that the air quality will be maintained after the Stage II equipment
is decommissioned.
GDFs that do not have to install the Stage II equipment will realize
a cost savings. Staff estimates that costs for new Stage II vapor
recovery equipment installation would range from $40,000 for a four-dispenser
GDF to $120,000 for a 12-dispenser GDF with $350 to $1,000 in annual
maintenance costs.
The proposed rules would require owners of GDFs with Stage II equipment
already in place to decommission the equipment by August 31, 2018.
However, the EPA has stipulated that decommissioning would not be
able to begin until the EPA has approved the proposed rulemaking and
SIP revision that authorizes the removal of the Stage II equipment.
If the proposed rulemaking is adopted, EPA approval of the revised
SIP may not take place until the beginning of 2015 at the earliest.
Owners of GDFs would be allowed to keep their Stage II equipment until
August 31, 2018, but would continue to maintain, test, and monitor
the equipment. Owners of GDFs that decide to decommission their equipment
would be required to submit a notice to the appropriate TCEQ regional
office requesting approval for decommissioning. The TCEQ regional
offices, or the local government with jurisdiction, would continue
to inspect GDFs with Stage II equipment and would also inspect and
monitor decommissioning activities at GDFs during the five-year period
covered by this fiscal note.
At this time, certified Stage II vapor recovery systems are required
at GDFs in Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty,
Montgomery, and Waller Counties in the HGB area; Collin, Dallas, Denton,
and Tarrant Counties in the DFW area; El Paso County; and Hardin,
Jefferson, and Orange Counties in the BPA area.
There are an estimated 420 Stage II facilities that are owned by
units of local government (including counties, cities, school districts,
etc.) that would have to comply with the decommissioning requirements.
The costs for removing this equipment will vary and likely depend
upon the number of gasoline dispensers located at each GDF. However,
staff estimates that the one-time cost would be approximately $600
per gasoline dispenser. The Stage II equipment is inspected by the
agency annually with a more comprehensive inspection every three years.
Staff estimates that it costs $250 to $350 each year for a GDF to
test the Stage II equipment and $350 every three years for a more
comprehensive Stage II equipment test. Staff also estimates an additional
$350 to $1,000 each year in costs for maintenance and repair of the
equipment. Removal of the equipment would result in a net cost savings
for each GDF over the long term but may represent a cost increase
to the facilities over the short term. Owners of GDFs including local
governments may begin decommissioning their GDFs 30-calendar days
after the EPA provides SIP approval, but they may choose to wait until
the proposed 2018 deadline in order to maximize the initial and ongoing
cost of installing and maintaining the equipment.
Four local governments currently perform Stage II enforcement,
inspections, and monitoring activities in their local jurisdictions
through a contract with the TCEQ. The four local governments are the
cities of Dallas, Fort Worth, and El Paso and the Galveston County
Health District. These particular contracts also include other air
pollution investigation activities in addition to the Stage II investigations.
The contracts require the local government to provide a 33% funding
match. The TCEQ also contracts with the University of Texas at Arlington
to perform Stage II investigations in the city of Houston. This contract
is for approximately $500,000 and does not require a funding match.
If the proposed decommissioning begins, these contracts would need
to be re-evaluated to account for the decrease and eventual elimination
of the Stage II investigations and associated activities. Once the
Stage II equipment is removed from GDFs, local governments and the
TCEQ would see a cost savings associated with the costs to monitor
and inspect these systems.
Public Benefits and Costs
Mr. Horvath has also determined that for each year of the first
five years the proposed rules are in effect, the public benefit anticipated
from the changes seen in the proposed rules will be the continued
protection of public health and safety while eliminating unnecessary
requirements and maintaining compliance with federal rules.
The proposed rules are not expected to have fiscal implications
for individuals and businesses during the first five years the proposed
rules are implemented unless they are constructing new GDFs or unless
they perform Stage II testing for GDFs. For those owners of GDFs that
choose to decommission their Stage II equipment after EPA approval
but before the 2018 deadline, there would be some costs depending
upon the number of gasoline dispensers at each GDF. There are approximately
282 registered Stage II testers and 61 companies that perform testing
services as part of their operations. Because most of them do other
types of testing and provide other services, they are not expected
to experience significant fiscal impacts as a result of the proposed
rulemaking.
Currently, approved and certified Stage II vapor recovery systems
are required at GDFs in Brazoria, Chambers, Fort Bend, Galveston,
Harris, Liberty, Montgomery, and Waller Counties in the HGB area;
Collin, Dallas, Denton, and Tarrant Counties in the DFW area; El Paso
County; and Hardin, Jefferson, and Orange Counties in the BPA area.
There are approximately 6,600 GDFs in these counties that are required
to have Stage II vapor recovery equipment installed. These owners
of GDFs will have to pay to decommission the Stage II equipment if
the proposed rules are adopted. These costs are estimated to be $600
per dispenser. Total decommissioning costs for each GDF will depend
upon the number of dispensers at each facility. Over time, owners
of each GDF will experience cost savings because they will not have
to pay testing, inspection, and maintenance and repair costs. These
cost savings for each GDF are not anticipated to be significant but
would be at least $250 to $350 each year for inspection and testing
and $350 to $1,000 in annual cost savings for maintenance and repair.
There would be cost savings for those GDFs that do not have to install
the Stage II equipment. Staff estimates that costs for new Stage II
vapor recovery equipment installation would range from $40,000 for
a four-dispenser GDF to $120,000 for a 12-dispenser GDF.
Small Business and Micro-Business Assessment
No adverse fiscal implications are anticipated for small or micro-businesses
as a result of the administration or enforcement of the proposed rules.
The agency estimates that there are 692 small businesses and 574 micro-businesses
that would have to comply with the proposed rules for decommissioning.
Some of these small and micro-businesses may begin decommissioning
30-calendar days after the EPA provides SIP approval, but they may
choose to wait until the proposed August 31, 2018 deadline in order
to maximize the initial and ongoing cost of installing and maintaining
the equipment. Costs to decommission the Stage II equipment and cost
savings due to the elimination of testing, inspection, maintenance,
and repair costs are the same as those for large businesses. Cost
savings for those small or micro-businesses who install new facilities
would also be the same as those identified for large businesses.
There are approximately 282 registered Stage II testers and 61
companies that perform testing services as part of their operations.
It is not known how many of these companies are small or micro-businesses,
but most of them are thought to provide additional Petroleum Storage
Tank/Vapor Recovery-related services such as line and tank testing,
release detection monitoring, and routine equipment inspections to
ensure compliance. While there is a possibility that some companies
may be required to reduce staff, it is unlikely as most of these companies
provide other services and have been anticipating the change in Vapor
Recovery requirements.
Small Business Regulatory Flexibility Analysis
The commission reviewed this proposed rulemaking and determined
that a small business regulatory flexibility analysis is not required,
because the proposed rules do not adversely affect a small or micro-business
in a material way for the first five years that the proposed rules
are in effect.
Local Employment Impact Statement
The commission reviewed this proposed rulemaking and determined
that a local employment impact statement is not required, because
the proposed rules do not adversely affect a local economy in a material
way for the first five years that the proposed rules are in effect.
Draft Regulatory Impact Analysis Determination
The commission reviewed the proposed rulemaking in light of the
regulatory impact analysis requirements of Texas Government Code, §2001.0225,
and determined that the proposed rulemaking does not meet the definition
of a "major environmental rule" as defined in that statute. A "major
environmental rule" means a rule, the specific intent of which is
to protect the environment or reduce risks to human health from environmental
exposure, and that may adversely affect in a material way the economy,
a sector of the economy, productivity, competition, jobs, the environment,
or the public health and safety of the state or a sector of the state.
Additionally, the proposed rulemaking does not meet any of the four
applicability criteria for requiring a regulatory impact analysis
for a major environmental rule, which are listed in Texas Government
Code, §2001.0225(a). Texas Government Code, §2001.0225,
applies only to a major environmental rule, the result of which is
to: 1) exceed a standard set by federal law, unless the rule is specifically
required by state law; 2) exceed an express requirement of state law,
unless the rule is specifically required by federal law; 3) exceed
a requirement of a delegation agreement or contract between the state
and an agency or representative of the federal government to implement
a state and federal program; or 4) adopt a rule solely under the general
powers of the agency instead of under a specific state law.
The proposed rulemaking would amend §§115.240, 115.242
- 115.246, create new §115.241, and repeal §§115.241,
115.247, and 115.249. The revisions to Chapter 115 would specify that
new GDFs are not required to install Stage II equipment and to allow
existing GDFs in the current program areas to properly decommission
Stage II equipment.
FCAA, §182(b)(3) provides that for certain nonattainment areas,
states must revise their SIP to require all owners or operators of
gasoline dispensing systems operating after November 15, 1990 to install
a system for gasoline vapor recovery of emissions from the fueling
of motor vehicles. FCAA, §202(a)(6) requires the EPA to implement
requirements for ORVR. Both Stage II and vehicle ORVR are types of
emission control systems that capture fuel vapors from vehicle gas
tanks during refueling. FCAA, §202(a)(6) also provides that the
EPA may revise or waive the application of Stage II requirements if
it determined that ORVR was in widespread use throughout the motor
vehicle fleet. The EPA finalized a rulemaking on May 16, 2012
(Federal Register,
77 FR 28772) for 40 CFR
Part 51, determining that vehicle ORVR technology is in widespread
use for the purposes of controlling motor vehicle refueling emissions
throughout the motor vehicle fleet. This action allows the EPA to
waive the requirement for states to implement Stage II gasoline vapor
recovery systems at GDFs in nonattainment areas classified as serious
and above for the ozone NAAQS.
The proposed rulemaking implements requirements of 42 United States
Code (USC), §7410, which requires states to adopt a SIP that
provides for the implementation, maintenance, and enforcement of the
NAAQS in each air quality control region of the state. While 42 USC, §7410
generally does not require specific programs, methods, or reductions
in order to meet the standard, the SIP must include enforceable emission
limitations and other control measures, means, or techniques (including
economic incentives such as fees, marketable permits, and auctions
of emissions rights), as well as schedules and timetables for compliance
as may be necessary or appropriate to meet the applicable requirements
of this chapter (42 USC, Chapter 85). The provisions of the FCAA recognize
that states are in the best position to determine what programs and
controls are necessary or appropriate in order to meet the NAAQS.
This flexibility allows states, affected industry, and the public,
to collaborate on the best methods for attaining the NAAQS for the
specific regions in the state. Even though the FCAA allows states
to develop their own programs, this flexibility does not relieve a
state from developing a program that meets the requirements of 42
USC, §7410. States are not free to ignore the requirements of
42 USC, §7410, and must develop programs to assure that their
contributions to nonattainment areas are reduced so that these areas
can be brought into attainment on schedule.
The proposed rulemaking will implement the EPA's rulemaking that
was published May 16, 2012
(Federal Register,
77
FR 28772) for 40 CFR Part 51, determining that vehicle ORVR technology
is in widespread use for the purposes of controlling motor vehicle
refueling emissions throughout the motor vehicle fleet and waiving
the requirement for states to implement Stage II gasoline vapor recovery
systems at GDFs in nonattainment areas classified as serious and above
for the ozone NAAQS. Revisions to Chapter 115 specifying that owners
of new GDFs are not required to install Stage II equipment and to
allow existing owners of GDFs in the current program areas to properly
decommission Stage II equipment is a necessary and required component
of developing the SIP for nonattainment areas as required by 42 USC, §7410.
The requirement to provide a fiscal analysis of proposed regulations
in the Texas Government Code was amended by Senate Bill (SB) 633 during
the 75th Legislature, 1997. The intent of SB 633 was to require agencies
to conduct a regulatory impact analysis of extraordinary rules. These
rules are identified in the statutory language as major environmental
rules that will have a material adverse impact and will exceed a requirement
of state law, federal law, or a delegated federal program, or are
adopted solely under the general powers of the agency. With the understanding
that this requirement would seldom apply, the commission provided
a cost estimate for SB 633 concluding that "based on an assessment
of rules adopted by the agency in the past, it is not anticipated
that the bill will have significant fiscal implications for the agency
due to its limited application." The commission also noted that the
number of rules that would require assessment under the provisions
of the bill was not large. This conclusion was based, in part, on
the criteria set forth in the bill that exempted proposed rules from
the full analysis unless the rule was a major environmental rule that
exceeds a federal law.
As discussed earlier in this preamble, the FCAA does not always
require specific programs, methods, or reductions in order to meet
the NAAQS; thus, states must develop programs for each area contributing
to nonattainment to help ensure that those areas will meet the attainment
deadlines. Because of the ongoing need to address nonattainment issues
and to meet the requirements of 42 USC, §7410, the commission
routinely proposes and adopts SIP rules. The legislature is presumed
to understand this federal scheme. If each rule proposed for inclusion
in the SIP was considered to be a major environmental rule that exceeds
federal law, then every SIP rule would require the full regulatory
impact analysis contemplated by SB 633. This conclusion is inconsistent
with the conclusions reached by the commission in its cost estimate
and by the Legislative Budget Board (LBB) in its fiscal notes. Since
the legislature is presumed to understand the fiscal impacts of the
bills it passes and that presumption is based on information provided
by state agencies and the LBB, the commission believes that the intent
of SB 633 was only to require the full regulatory impact analysis
for rules that are extraordinary in nature. While the SIP rules will
have a broad impact, the impact is no greater than is necessary or
appropriate to meet the requirements of the FCAA. For these reasons,
rules adopted for inclusion in the SIP fall under the exception in
Texas Government Code, §2001.0225(a) because they are required
by federal law.
The commission has consistently applied this construction to its
rules since this statute was enacted in 1997. Since that time, the
legislature has revised the Texas Government Code but left this provision
substantially un-amended. It is presumed that "when an agency interpretation
is in effect at the time the legislature amends the laws without making
substantial change in the statute, the legislature is deemed to have
accepted the agency's interpretation."
Central
Power & Light Co. v. Sharp,
919 S.W.2d 485, 489 (Tex. App.
Austin 1995),
writ denied with per curiam
opinion respecting another issue,
960 S.W.2d 617 (Tex. 1997);
Bullock v. Marathon Oil Co.,
798 S.W.2d
353, 357 (Tex. App. Austin 1990,
no writ).
Cf. Humble Oil & Refining Co. v. Calvert,
414 S.W.2d 172
(Tex. 1967);
Dudney v. State Farm Mut. Auto
Ins. Co.,
9 S.W.3d 884, 893 (Tex. App. Austin 2000);
Southwestern Life Ins. Co. v. Montemayor,
24
S.W.3d 581 (Tex. App. Austin 2000,
pet. denied);
and
Coastal Indust. Water Auth. v.
Trinity Portland Cement Div.,
563 S.W.2d 916 (Tex. 1978).
The commission's interpretation of the regulatory impact analysis
requirements is also supported by a change made to the Texas Administrative
Procedure Act (APA) by the legislature in 1999. In an attempt to limit
the number of rule challenges based upon APA requirements, the legislature
clarified that state agencies are required to meet these sections
of the APA against the standard of "substantial compliance." The legislature
specifically identified Texas Government Code, §2001.0225, as
falling under this standard. The commission has substantially complied
with the requirements of Texas Government Code, §2001.0225.
The specific intent of the proposed rulemaking would allow owners
of new GDFs not to install Stage II equipment and allow owners of
existing GDFs in the current program areas to properly decommission
Stage II equipment. The EPA may grant the removal and waiver of Stage
II equipment due to the widespread use of ORVR in the overall vehicle
fleet. The proposed rules would permit these changes to occur in Texas.
As explained previously in this preamble, vehicles equipped with ORVR
technology provide greater pollution reduction benefits than Stage
II control systems and are more cost-effective. The proposed rulemaking
does not exceed a standard set by federal law or exceed an express
requirement of state law. No contract or delegation agreement covers
the topic that is the subject of this proposed rulemaking. Therefore,
this proposed rulemaking is not subject to the regulatory analysis
provisions of Texas Government Code, §2001.0225(b) because although
the proposed rulemaking meets the definition of a "major environmental
rule," it does not meet any of the four applicability criteria for
a major environmental rule.
The commission invites public comment regarding the draft regulatory
impact analysis determination during the public comment period. Written
comments on the draft regulatory impact analysis determination may
be submitted to the contact person at the address listed under the
Submittal of Comments section of this preamble.
Takings Impact Assessment
The commission evaluated the proposed rulemaking and performed
an assessment of whether Texas Government Code, Chapter 2007 is applicable.
The specific purpose of the proposed rulemaking is to specifying that
new GDFs are not required to install Stage II equipment and to allow
existing GDFs in the current program areas to properly decommission
Stage II equipment as required by 42 USC, §7410. FCAA, §182(b)(3)
provides that for certain nonattainment areas, states must revise
their SIP to require all owners or operators of GDFs operating after
November 15, 1990, to install a system for gasoline vapor recovery
of emissions from the fueling of motor vehicles. FCAA, §202(a)(6)
also required the EPA to implement requirements for vehicle ORVR.
Both Stage II and vehicle ORVR are types of emission control systems
that capture fuel vapors from vehicle gas tanks during refueling.
FCAA, §202(a)(6) also provided that the EPA may revise or waive
the application of Stage II requirements if it determined that ORVR
was in widespread use throughout the motor vehicle fleet.
The EPA finalized a rulemaking on May 16, 2012
(Federal Register, 77 FR 28772),
for 40
CFR Part 51, determining that vehicle ORVR technology is in widespread
use for the purposes of controlling motor vehicle refueling emissions
throughout the motor vehicle fleet. This action allows the EPA to
waive the requirement for states to implement Stage II gasoline vapor
recovery systems at GDFs in nonattainment areas classified as serious
and above for the ozone NAAQS. The EPA may grant the removal and waiver
of Stage II equipment due to the widespread use of ORVR in the overall
vehicle fleet. The proposed rulemaking and corresponding SIP would
permit these changes to occur in Texas. As explained previously in
the preamble, vehicles equipped with ORVR technology provide greater
pollution reduction benefits than Stage II control systems and are
more cost-effective. Texas Government Code, §2007.003(b)(4),
provides that Texas Government Code, Chapter 2007 does not apply to
this proposed rulemaking because it is an action reasonably taken
to fulfill an obligation mandated by federal law.
In addition, the commission's assessment indicates that Texas Government
Code, Chapter 2007 does not apply to these proposed rules because
this action is taken in response to a real and substantial threat
to public health and safety; that is designed to significantly advance
the health and safety purpose; and that does not impose a greater
burden than is necessary to achieve the health and safety purpose.
Thus, this action is exempt under Texas Government Code, §2007.003(b)(13).
The proposed rules fulfill the FCAA requirement to decommission Stage
II equipment in nonattainment areas. These revisions will result in
VOC emission reductions in ozone nonattainment areas, which may contribute
to the timely attainment of the ozone standard and reduced public
exposure to VOC emissions. Consequently, the proposed rulemaking meets
the exemption criteria in Texas Government Code, §2007.003(b)(4)
and (13). For these reasons, Texas Government Code, Chapter 2007 does
not apply to this proposed rulemaking.
Consistency with the Coastal Management Program
The commission reviewed the proposed rulemaking and found the proposal
is a rulemaking identified in the Coastal Coordination Act Implementation
Rules, 31 TAC §505.11(b)(2) or (4), relating to rules subject
to the Coastal Management Program, and will, therefore, require that
goals and policies of the Texas Coastal Management Program (CMP) be
considered during the rulemaking process. 31 TAC §505.11(b)(2)
applies only to air pollutant emissions, on-site sewage disposal systems,
and underground storage tanks. 31 TAC §505.11(b)(4) applies to
all other actions.
The commission reviewed this rulemaking for consistency with the
CMP goals and policies in accordance with the regulations of the Coastal
Coordination Council Advisory Committee and determined that the revisions
are consistent with CMP goals and policies, because the rulemaking
is a fee rule, which is a procedural mechanism for paying for commission
programs; will not have direct or significant adverse effect on any
coastal natural resource areas; will not have a substantive effect
on commission actions subject to the CMP; and promulgation and enforcement
of the revisions will not violate (exceed) any standards identified
in the applicable CMP goals and policies.
Written comments on the consistency of this rulemaking may be submitted
to the contact person at the address listed under the submittal of
comments section of this preamble.
Effect on Sites Subject to the Federal Operating Permits Program
Chapter 115 contains applicable requirements under 30 TAC Chapter
122, Federal Operating Permits; therefore, owners or operators subject
to the Federal Operating Permit Program must, consistent with the
revision process in Chapter 122, revise their operating permits to
include the revised Chapter 115 requirements for each emission unit
at their sites affected by the revisions to Chapter 115.
Announcement of Hearings
The commission will hold public hearings on this proposal in El
Paso on May 28, 2013, at 2:00 p.m., El Paso Public Library Auditorium,
501 N. Oregon; Beaumont at 2:00 p.m. on May 30, 2013, Texas Commission
on Environmental Quality Region 10 Office, 3870 Eastex Freeway; Houston
at 2:00 p.m., Houston-Galveston Area Council, 3555 Timmons, 2nd Floor,
Room A on May 31, 2013; Arlington at 2:00 p.m. on June 3, 2013, Arlington
City Council Chamber, 101 West Abram; Austin at 2:00 p.m. on June
4, 2013, Texas Commission on Environmental Quality, 12100 Park 35
Circle, Building E, Room 201S. The hearings are structured for the
receipt of oral or written comments by interested persons. Individuals
may present oral statements when called upon in order of registration.
Open discussion will not be permitted during the hearings; however,
commission staff members will be available to discuss the proposal
30 minutes prior to each hearing.
Persons who have special communication or other accommodation needs
who are planning to attend a hearing should contact Sandy Wong, Office
of Legal Services, at (512) 239-1802. Requests should be made as far
in advance as possible.
Submittal of Comments
Comments may be submitted to Bruce McAnally, MC 205, Office of
Legal Services, Texas Commission on Environmental Quality, P.O. Box
13087, Austin, Texas 78711-3087 or faxed to (512) 239-4808. Electronic
comments may be submitted at:
http://www5.tceq.texas.gov/rules/ecomments/.
File size restrictions may apply to comments being submitted
via the eComments system. All comments should reference Rule Project
Number 2013-001-115-AI. The comment period closes June 10, 2013. Copies
of the proposed rulemaking can be obtained from the commission's website
at
http://www.tceq.texas.gov/nav/rules/propose_adopt.html.
For further information, please contact Santos Olivarez, Air
Quality Planning Section, (512) 239-4718.