Part 1.
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
Chapter 115.
CONTROL OF AIR POLLUTION FROM VOLATILE ORGANIC COMPOUNDS
Subchapter C. VOLATILE ORGANIC COMPOUND TRANSFER OPERATIONS
The Texas Commission on Environmental Quality (commission) adopts
the amendments to §§115.222, 115.223, 115.240, 115.242, 115.243,
115.245, 115.248, and 115.249. The amendments to §§115.222, 115.240,
and 115.245 are adopted
with changes
to the
proposed text as published in the December 3, 2004, issue of the
Texas Register
. The amendments to §§115.223, 115.242, 115.243,
115.248, and 115.249 are adopted
without changes
to the proposed text as published in the December 3, 2004, issue of
the
Texas Register
(29 TexReg 11271) and will
not be republished.
The commission will submit the amendments and revised state implementation
plan (SIP) narrative to the United States Environmental Protection Agency
(EPA) as revisions to the SIP.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES
The commission adopted the Stage II rules and SIP narrative on October
16, 1992 (revised on November 10, 1993, and on November 22, 2002), to satisfy
a requirement of the Federal Clean Air Act amendments of 1990, §182(b)(3)
(42 United States Code (USC), §7511a(b)(3)). The original rules followed
the California Air Resources Board (CARB) certification procedures for vapor
recovery equipment. The CARB is currently implementing an enhanced vapor recovery
(EVR) program, and therefore, no longer certifies non-EVR vapor recovery systems.
In lieu of incorporating the CARB EVR program, the commission adopted requirements
for more frequent testing of vapor recovery systems at gasoline dispensing
facilities and for installing or retrofitting Stage II systems in order to
be compatible with onboard refueling vapor recovery (ORVR) equipment required
on newer vehicles. In order to provide additional ORVR compatibility options
to owners and operators of gasoline dispensing facilities, the commission
is expanding the definition of "Onboard refueling vapor recovery compatible."
Additionally, the commission is adopting language that will enhance the commission's
ability to approve both Stage I and Stage II vapor recovery systems and components
certified by independent third parties. The commission is also making changes
to the rule language, which should result in requirements that are easier
to understand and enforce.
SECTION BY SECTION DISCUSSION
Throughout this rulemaking, except after §115.242(2)(F), the phrase
"or third-party certification" is added after every reference to a CARB executive
order in order to allow for vapor recovery equipment or systems approved for
use by the executive director outside of the CARB certification program. Additionally,
throughout this rulemaking, administrative changes to the use of the word
"shall" in the rule language are made as needed to conform to the drafting
guidelines in the
Texas Legislative Council Drafting
Manual
, October 2002. In cases where a requirement is a condition precedent,
the word "must" is substituted. In other cases, present tense is substituted
when this construction is clearer. In the cases where an obligation is placed
on a person by the rule, "shall" is retained. Justification for these changes
will not be discussed further in this preamble other than to point out where
each change is made.
Subchapter C, Division 2, Stage I Vapor Recovery
The amendment to §115.222, Control Requirements, adds "or third-party
certification" to §115.222(5) and changes "shall" to "must" in §115.222
(1), (10), and (11), as previously discussed in this preamble. In §115.222(7),
the word "tank" is inserted to state more clearly which vapors are covered
by the provision. In §115.222(9), the phrase "combustible gas detector"
is being replaced with the term "hydrocarbon gas analyzer." The revision to §115.222(12)
clarifies that the exemption limits in §115.227 do not establish applicability
to the rule. At proposal, the requirement was rewritten to state that if a
motor vehicle fuel dispensing facility does not meet an exemption in §115.227,
then the owner or operator has 120 days to come into compliance with the provisions
of this division. At adoption, the proposed language is changed to clarify
that exceeding a throughput level that pertains to an exemption in §115.227
means that exemption no longer applies to the facility. Also, in §115.222(12),
the word "subsection" is replaced with "section" to conform to Texas Register
guidelines.
The amendment to §115.223, Alternate Control Requirements, removes
the language referencing §115.910 for demonstrating an alternate control
requirement (ACR) and replaces it with language comparable to that given in §115.243,
which regulates ACRs for Stage II. This amendment will make the approval of
new Stage I equipment easier and more commensurate with the approval process
in place for Stage II equipment.
Subchapter C, Division 4, Stage II Vapor Recovery
The amendment to §115.240, Stage II Vapor Recovery Definitions and
List of California Air Resources Board Certified Stage II Equipment, revises
the definition of "Onboard refueling vapor recovery compatible." Following
the promulgation of the last Stage II rule revision (November 2002), new vapor
recovery technologies have been developed that are limited by the prior definition.
The new definition considers any vapor recovery system certified by CARB as
ORVR compatible, regardless of whether it is vacuum assisted, to also be ORVR
compatible in Texas. In addition, a system certified, using test methods approved
by the executive director, by an independent third-party evaluator to maintain
an overall efficiency of at least 95% while dispensing fuel to both ORVR-equipped
and non-ORVR-equipped vehicles may be considered ORVR compatible in Texas.
The use of the acronym "ORVR" in the title is also deleted to conform to agency
guidelines. The amendment also changes "shall" in §115.240(a) to present
tense, as previously discussed in this preamble. At adoption, based on public
comment, the definition of "major system replacement or modification," which
was added to §115.245(1)(D) at proposal, is moved to this section as §115.240(a)(1),
and the subsequent definitions are renumbered. At adoption to conform to Texas
Register guidelines, the phrase "the California Air Resources Board" in the
proposed language in §115.240(a)(3) is replaced by the acronym "CARB"
because the language added at adoption as §115.240(a)(1) defines the
acronym earlier in the same section. The amendment to §115.240(b) removes
the phrase "in the following figure" and replaces it with "contained in this
subsection" to conform to Texas Register guidelines. At adoption to conform
to Texas Register guidelines, the phrase "California Air Resources Board"
in the existing language in §115.240(b) is removed and the acronym "CARB"
retained because the language added at adoption as §115.240(a)(1) defines
the acronym earlier in the same section.
The amendment to §115.242, Control Requirements, adds "or third-party
certification" to §115.242(2), (3), (3)(B) and (G), and (12)(C); changes
"shall" to "must" in §115.242(2), (2)(A) - (F), (5), (6), and (9); changes
"shall" to "may" in §115.242(1)(A) and (B); and changes "shall" to present
tense in §115.242(2)(B) and (D), as previously discussed in this preamble.
The amendment removes "vacuum assist" from §115.242(1)(C) because this
distinction is no longer necessary because CARB determined that all previously
certified balance systems are ORVR compatible. In §115.242(2), a grammatical
error is corrected by inserting "and" into a series of sections. The amendment
to §115.242(2)(C) removes the phrase "one-eighth of an" and replaces
it with "1/8" to conform to Texas Register guidelines. In §115.242(2)(D),
the provision for the minimum size of vapor piping is rephrased to be consistent
with the rule drafting guideline. Additionally, the phrase "and shall slope
towards the storage tank at all points" is added to §115.242(2)(E) to
augment the requirements for riser piping. This language ensures that the
piping within and below the dispenser will be free of liquid traps. The words
"or control" is added to §115.242(3)(H) to cover newer vapor recovery
system designs that are not necessarily considered "vapor processors." In §115.242(6),
language concerning the removal of out-of-order tags and returning equipment
to service is changed to be more understandable. The revision to §115.242(10)
clarifies that the exemption limits in §115.247 do not establish applicability
to the rule. The requirement has been rewritten to state that if a motor vehicle
fuel dispensing facility does not meet an exemption in §115.247, then
the owner or operator has 120 days to come into compliance with the provisions
of this division. In §115.242(12), the phrase "with jurisdiction" is
inserted after the phrase "local air pollution program" to add specificity.
In §115.242(12)(C), the word "number(s)" is added after the phrase "CARB
Executive Order" to show that the entire CARB Executive Order does not need
to be submitted.
The only amendment to §115.243(2), Alternate Control Requirements,
is a change from the word "verified" to "certified." This change is needed
both to strengthen the ACRs and to make this language consistent with the
rest of the rule.
The amendment to §115.245, Testing Requirements, reconfigures the
entire section, but results in only a minor additional requirement. Language
is reconfigured to make §115.245(1) applicable only to initial or full
system testing; §115.245(2) applicable to only annual testing; and new §115.245(3)
applicable only to pretest notification and reporting of test results. At
adoption, based on public comment, the definition of "major system replacement
or modification," which was added to §115.245(1)(D) as part of the reconfiguration,
is moved to §115.240(1) as discussed previously in this preamble. The
amendment to §115.245(2) removes "twelve" and replace it with "12" to
conform to Texas Register guidelines. The provisions in §115.245(3) are
broken out of §115.245(2) and modified because the current language in
this section is redundant, confusing, and somewhat difficult to enforce. The
remaining paragraphs are renumbered. Other changes add "or third-party certification"
to §115.245(1)(A)(i) and (C) and change "shall" to "must" in §115.245(1),
(1)(A)(i) - (iv), (1)(B) and (C), (2), (5), and (6), as previously discussed
in this preamble. In §115.245(1), the word "commission's" is added before
the title "Vapor Recovery Test Procedure Handbook" to add specificity. Additionally,
the changes add the applicable Texas test procedure number after the description
of each required test and add test time as a required item for pretest notifications
in new §115.245(3). At adoption, new wording is added to renumbered §115.245(4)
to make it clear that only test modifications that have been approved by the
executive director may be used.
The amendment to §115.248, Training Requirements, adds "and testing"
to §115.248(3)(C) to better ensure that testing requirements are included
in the curriculum of approved Stage II training courses. The commission is
changing "shall" to the present tense in §115.248(1) and (4)(B)(ii) and
changing "shall" to "must" in §115.248(1), as previously discussed in
this preamble. The proposed amendment also corrects a typographic error in §115.248(4)(B)(ii).
The amendment to §115.249, Counties and Compliance Schedules, removes
"vacuum assist" from §115.249(c), (c)(1), and (c)(2). This distinction
is no longer necessary because CARB determined that all previously certified
balance systems are ORVR compatible.
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the adopted rulemaking action in light of the regulatory
analysis requirements of Texas Government Code, §2001.0225, and determined
that the adopted amendments do not meet the definition of a "major environmental
rule" as defined in that statute. Furthermore, it does not meet any of the
four applicability requirements listed in Texas Government Code, §2001.0225(a).
A "major environmental rule" is a rule which is specifically intended 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. The intent of this adopted
rulemaking action is to correct errors and change definitions in the rules
to match emerging control technologies. The adopted amendments will provide
additional ORVR compatibility options to owners and operators of gasoline
dispensing facilities by expanding the definition of "Onboard refueling vapor
recovery compatible" to include new technologies. Additionally, the commission
is adopting language that will enhance the commission's ability to approve
vapor recovery systems and components certified by independent third parties.
The commission is also making changes to the rule language, which should result
in requirements that are easier to understand and enforce. The adopted amendments
to Chapter 115 do not increase the stringency of existing rules and will not
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. The adopted amendments are primarily
procedural. No additional fiscal impacts are expected from these amendments
to those gasoline dispensing facilities that are currently required to have
Stage I or Stage II vapor recovery systems installed.
In addition, Texas Government Code, §2001.0225 only applies 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. This
adopted rulemaking is not subject to the regulatory analysis provisions of
Texas Government Code, §2001.0225(b), because the adopted amendments
do not meet any of the four applicability requirements. Specifically, the
adopted amendments implement requirements of 42 USC, §7511a(b)(3), (c),
and (d) and Texas Health and Safety Code (THSC), §§382.002, 382.011,
382.012, 382.019, and 382.208.
TAKINGS IMPACT ASSESSMENT
The commission evaluated this adopted rulemaking action and performed an
analysis of whether Texas Government Code, Chapter 2007 is applicable. The
analysis indicates this action is reasonably being taken to fulfill an obligation
mandated by federal law, and therefore is exempt under Texas Government Code, §2007.003(b)(4).
Specifically, this adopted rulemaking action amends the Stage I and Stage
II gasoline vapor recovery rules and SIP narrative required under 42 USC, §7511a(b)(3),
(c), and (d). The specific purpose of the adopted rulemaking is to provide
additional ORVR compatibility options to owners and operators of gasoline
dispensing facilities by expanding the definition of "Onboard refueling vapor
recovery compatible" to include new technologies. Additionally, the commission
is adopting language that will enhance the commission's ability to approve
vapor recovery systems and components certified by independent third parties.
The commission is also making changes to the rule language, which should result
in requirements that are easier to understand and enforce.
Nevertheless, the commission further evaluated this adopted rulemaking
action and performed an analysis of whether this action would constitute a
takings under Texas Government Code, Chapter 2007. The specific purpose of
these adopted amendments is to continue to satisfy federal requirements for
vapor recovery from gasoline dispensing facilities in nonattainment areas
of the state. Promulgation and enforcement of these adopted amendments would
be neither a statutory or constitutional taking of private real property.
Specifically, the adopted amendments do not affect a landowner's rights in
private real property, because this rulemaking action does not burden, restrict,
nor limit the owner's rights to property or reduce its value by 25% or more
beyond that which would otherwise exist in the absence of the adopted regulations.
In other words, these amendments are adopted to continue to meet the requirements
of 42 USC, §7511a(b)(3) and THSC, §382.019 and §382.208, but
in a less financially burdensome manner on owners and operators of gasoline
dispensing facilities. The adopted amendments will enhance the commission's
ability to approve vapor recovery systems and components certified by independent
third parties and allow the use of new technologies. An alternative would
be to implement the CARB EVR program in Texas at a substantially increased
cost to facility owners and operators in order to meet the requirements of
the Federal Clean Air Act. Therefore, these adopted amendments will not constitute
a takings under Texas Government Code, Chapter 2007.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission determined that this rulemaking action relates to an action
or actions subject to the Texas Coastal Management Program (CMP) in accordance
with the Coastal Coordination Act of 1991, as amended (Texas Natural Resources
Code, §§33.201
et seq
.), and the
commission rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency
with the CMP. As required by §281.45(a)(3) and 31 TAC §505.11(b)(2),
relating to Actions and Rules Subject to the Coastal Management Program, commission
rules governing air pollutant emissions must be consistent with the applicable
goals and policies of the CMP. The commission reviewed this action for consistency
with the CMP goals and policies in accordance with the rules of the Coastal
Coordination Council, and determined that the action is consistent with the
applicable CMP goals and policies. The CMP goal applicable to this rulemaking
action is the goal to protect, preserve, and enhance the diversity, quality,
quantity, functions, and values of coastal natural resource areas (31 TAC §501.12(l)).
No new sources of air contaminants will be authorized, and the adopted revisions
will maintain the same level of emissions control as the existing rules. The
CMP policy applicable to this rulemaking action is the policy that commission
rules comply with federal regulations in 40 Code of Federal Regulations, to
protect and enhance air quality in the coastal areas (31 TAC §501.14(q)).
This rulemaking action complies with 40 Code of Federal Regulations Part 51,
Requirements for Preparation, Adoption, and Submittal of Implementation Plans.
Therefore, in compliance with 31 TAC §505.22(e), the commission affirms
that this rulemaking action is consistent with CMP goals and policies.
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.
PUBLIC COMMENT
A public hearing on this proposal was held in Austin, Texas, on January
3, 2005, and oral comments were received from Husky Corporation (Husky). The
public comment period ended at 5:00 p.m. on January 3, 2005. Written comments
were submitted by the Sierra Club, Houston Regional Group (HSC); Valero Energy
Corporation (Valero); Technology Resources International, Inc. (TRI); ARID
Technologies, Inc. (ARID); EPA Region VI; Dresser Wayne, Inc. (DW); the American
Petroleum Institute (API); and ExxonMobil Downstream (ExxonMobil). Valero,
TRI, ARID, EPA Region VI, and DW indicated that they supported the rules.
HSC opposed the adoption of the rules. ExxonMobil did not indicate whether
it was for or against the adoption of the rule amendments, but provided specific
comments on the existing rules. API indicated that its members support the
rule amendments, but opposed part of the existing rules.
RESPONSE TO COMMENTS
Comment
HSC commented that the proposal indicated that the CARB is implementing
an EVR program and no longer certifying non-EVR vapor recovery systems, but
that the proposal did not provide the public with information on what an EVR
program is or on why the commission is not doing the same. HSC commented that
the commission must document the effectiveness of the proposal and why it
is better than an EVR program. The HSC stated that the citizens of Texas deserve
the best and most comprehensive protection from air pollution equal to that
in California. HSC requested that the commission withdraw the proposal and
provide information on EVR programs and why the proposed amendments are better.
RESPONSE
CARB's EVR program was initiated in 1999 in response to legal action brought
against the State of California by the National Resources Defense Council,
the Coalition for Clean Air, and others. CARB claims that EVR will produce
a higher vapor recovery system efficiency than non-EVR systems (from 95%
to 98%). EVR requires all systems to be ORVR compatible, possess in-station
monitoring equipment, utilize only single-hose dispensers, and have minimal
post-fueling drips and liquid retention/spitback. The commission, sharing
CARB's concerns over the compatibility of vapor recovery systems with federally
mandated ORVR systems installed on new automobiles, promulgated requirements
for ORVR compatibility in the 2002 Stage II rule revision (November 6, 2002).
In fact, the ORVR compatibility compliance date of April 1, 2005, for new
systems in Texas is a full year earlier than that required under CARB's EVR
program. However, it is the commission's position that the additional cost
to owners and operators of vapor recovery systems is unwarranted for the minor
increase in overall system efficiency gained by the full CARB EVR program.
CARB's own estimates indicate that EVR will have an average total fixed cost
of nearly $46,000 per facility (August 2002). CARB has also calculated an
overall EVR cost effectiveness of $4.85 per pound of reactive organic gases
(ROG) reduced (originally calculated at approximately $1.80 per pound). The
commission has taken other steps to increase the operational efficiency of
vapor recovery systems in Texas, including an increase in the frequency of
system testing, a modification of the agency's investigation strategy to allow
for more on-site test observations, and additional outreach to vapor recovery
system testers.
The commission agrees that the citizens of Texas deserve better air quality.
For this reason the commission strives to ensure that the Texas program meets
or exceeds the standards set forth by the EPA. The commission makes no claims
that its current vapor recovery program is better than California's EVR program.
However, the commission does maintain that the costs of EVR are prohibitive
and excessive when compared to other volatile organic compound (VOC) control
measures currently being implemented. No change was made in response to this
comment.
Comment
The HSC commented that it is not clear in the proposal how the commission
will set up third-party certifications. In addition, HSC commented that the
commission must define the phrases "qualified independent testing organization,"
"code or standard or practice acceptable to the executive director," and "which
has been developed by a nationally recognized agency, association, or independent
testing laboratory" that are used in the amendment to §115.223(2).
RESPONSE
Third-party certification of petroleum-related equipment is a long-standing,
nationally recognized process. Many universities and public and private organizations,
including Underwriters Laboratories, Inc., (UL) and the National Work Group
on Leak Detection Evaluations (NWGLDE), conduct or evaluate independent evaluations
of equipment and/or services. UL has been testing and certifying products
and services for over 100 years. The NWGLDE is a group of state and EPA representatives
who review leak detection system evaluations to determine if each evaluation
was performed in accordance with an acceptable leak detection test method
protocol and ensure that the leak detection system meets EPA and/or other
applicable regulatory performance standards. The NWGLDE reviews evaluations
prepared by a number of third-party testers/evaluators and seeks to ensure
that EPA-approved methodologies were followed.
The commission's third-party vapor recovery equipment certification program
strives to ensure it is no less stringent than the examples given in the previous
paragraph. All third-party evaluations must be performed by a nationally recognized
entity using CARB's pre-EVR certification standards. This entity must provide
proof that it has the knowledge, experience, and staff necessary to perform
a comprehensive evaluation. To date, the commission has approved two third-party
evaluators for vapor recovery equipment certifications: Ken Wilcox Associates,
Inc. (KWA) and TRI. Since 1989, KWA has conducted hundreds of different evaluations
for almost every manufacturer of leak detection equipment. It has been contracted
by the EPA, the API, the Federal Aviation Administration, and others to perform
such evaluations. TRI provides such services as technology planning, evaluation,
and development, regulatory advocacy, and litigation support.
In light of this information, the commission maintains that the addition
of the definitions requested by HSC in §115.10 is not necessary. No change
was made in response to this comment.
Comment
HSC commented that the commission must require specific training for third-party
certifiers under §115.248.
RESPONSE
Requiring additional training for individuals, companies, or organizations
involved in third-party testing and evaluation of vapor recovery equipment
would not be consistent with other third-party certification programs created
by the commission. Moreover, it is not evident that training of this type
currently exists. The intent of these third-party certification programs is
to ensure rigorous testing and evaluation of new equipment and methods without
taxing the limited funds and resources available to the commission. Developing
or requiring additional training would unnecessarily burden the commission
with another level of bureaucratic oversight. No change was made in response
to this comment.
Comment
HSC commented that the commission must define what is meant by maintaining
"an overall efficiency of at least 95% while dispensing fuel" in §115.240.
RESPONSE
Vapor recovery systems approved for use in Texas must reduce the emissions
of VOCs (i.e., gasoline vapors) to the atmosphere by 95%. The 95% efficiency
criteria provided in the rule follows EPA's guidance. Under the Federal Clean
Air Act, EPA is required to issue guidance, as appropriate, regarding the
effectiveness of vapor recovery systems. EPA's guidance set a 95% efficiency
level based on CARB's pre-EVR certification efficiency levels. The modification
to the definition of "ORVR compatible" requires that any system or retrofit
meet the required minimum overall system efficiency of 95% while fueling vehicles,
even equipped with ORVR. No change was made in response to this comment.
Comment
HSC commented that the commission must be specific about how the rules
will be easier to enforce, as was stated in the proposal.
RESPONSE
The changes to the rules that will result in requirements that are easier
to understand and enforce include modifications to the subsection regulating
the testing of vapor recovery systems. The current language of §115.245
is redundant and can be difficult to understand. The proposed language for §115.245
only introduces a minor new requirement regarding the inclusion of test time
on pretest notifications. The main goal of the revision is to reconfigure
the section to make paragraph (1) applicable to initial or full system testing,
paragraph (2) applicable to annual testing, and new paragraph (3) applicable
to pretest notification and reporting of test results. These changes will
be easier to enforce because there will no longer be confusion about which
citation applies to specific situations.
Comment
HSC commented that an addition should be made to §115.242(6) to require
that verbal and written notifications be made to the commission's regional
offices and to local air pollution control agencies with jurisdiction.
RESPONSE
It is unclear what this request would accomplish. The language in §115.242(6)
requires verbal and written notification to the agency that originally tagged
the equipment out of service. This ensures that the notifications are submitted
to the appropriate agency. No change was made in response to this comment.
Comment
HSC commented that the definition for "major system replacement or modification"
in §115.245(1)(D) should be moved to §115.240.
RESPONSE
The commission agrees and has amended the rule language accordingly.
Comment
Valero stated that it generally welcomes the amendments as a practical
and economic method for owners and operators to comply and to maintain their
systems at 95% efficiency. In discussing its reasons for support, Valero commented
that it has been reported that the current ORVR penetration in Texas is at
least 45%.
RESPONSE
The commission acknowledges the comments made by Valero and appreciates
the support of the rulemaking. With respect to the estimated ORVR penetration
rates referenced by Valero in its response, recent third-party certification
testing conducted in the Houston area revealed an actual penetration rate
of approximately 33%. While other areas of the state may be experiencing slightly
higher or lower rates, the commission believes the observed rate is representative
of current conditions.
Comment
Valero expressed its continued support for personnel certification for
testing companies and would welcome the commission switching from a tester
registry to an accredited certification program.
RESPONSE
The commission appreciates Valero's support of an accredited certification
program for vapor recovery system testers. However, the commission is unable
to implement these changes at this time. The Stage II vapor recovery program
is authorized by THSC, Chapter 382, but there are no provisions in the THSC
that explicitly authorize an occupational licensing or certification program
for vapor recovery equipment installers, repair technicians, or testers. It
is not commission practice to establish and regulate a licensing program without
explicit statutory authority. The commission's licensing programs are based
on the authority provided in Texas Water Code (TWC), Chapter 37, and there
are no provisions in the TWC for the licensing of Stage II vapor recovery
equipment testers. No change was made in response to this comment.
Comment
Valero expressed continued support for a thorough reconciliation of submitted
test results and regulated Stage II Vapor Recovery facilities by the commission's
regional offices. Detailed periodic analyses of the results received against
the test results required would identify noncompliant facilities.
RESPONSE
The commission appreciates Valero's continued support of thorough reconciliation
of Stage II test results. The commission's regional offices in Dallas/Fort
Worth, El Paso, Beaumont, and Houston and local air pollution control agencies
with jurisdiction currently conduct analyses of "test results received" versus
"test results required." These offices maintain detailed data for each facility
equipped with a vapor recovery system, including the type of Stage II system
installed, the date of the initial or last triennial test, the date of the
last successful annual test, the date of the last test observation performed
by staff of the commission or local air pollution control agencies with jurisdiction,
and the date of the last routine Stage II inspection. Since the commission
modified its investigation strategy in 2002 to focus more resources on actual
observation of annual and triennial testing, the amount and accuracy of data
collected has increased significantly. The commission is now better able to
determine which facilities are not conducting annual or triennial testing.
If it is determined that a facility has not submitted test results by its
due date, the facility is added to the commission's investigation target list.
No change was made in response to this comment.
Comment
Valero commented that Stage I vapor recovery should be required of all
retail fuel facilities in Texas. Valero stated that all of its company-operated
facilities are so equipped.
RESPONSE
The commission greatly appreciates Valero's efforts to install Stage I
controls on all company-operated facilities within the state. With regard
to a statewide Stage I requirement, the commission is currently amending its
regulations to reduce the Stage I threshold for facilities within Bexar, Comal,
Guadalupe, Wilson, Bastrop, Caldwell, Hays, Travis, and Williamson Counties
through early action compacts to address eight-hour ozone organized by local
and regional authorities in those areas. In these counties, any facility dispensing
25,000 gallons of gasoline or more in any month will be required to install
Stage I controls. Additionally, the commission has proposed rules to require
facilities in Ellis, Johnson, Kaufman, Parker, and Rockwall Counties to install
Stage I if they dispense 10,000 gallons or more per month (those dispensing
125,000 per month are already required to have Stage I). There are currently
no plans to expand the Stage I program further than these proposed amendments
and it is beyond the scope of the current rulemaking to do so. No change was
made in response to this comment.
Comment
TRI commented that the current requirement for ORVR compatibility needs
to be modified to be more flexible. The current requirements only allow the
use of technology available in the dispensing nozzle, rather than also allowing
more versatile vent processing technology. The amendments will allow either
CARB certification of ORVR compatibility or maintenance of a minimum overall
system efficiency of 95%. TRI expressed support for allowing certification
by parties other than CARB and commented that the CARB's new EVR rules are
cost-prohibitive for some small companies that produce control equipment.
TRI commented that an EVR program is not needed in Texas.
RESPONSE
The commission recognizes the comments provided by TRI and appreciates
its support of the rule changes.
Comment
ARID commented that the expanded definition of ORVR compatibility allows
for more hardware choices for facilities and that additional commercial options
will likely yield lower capital equipment costs. ARID commented that independent
third-party certification of equipment will provide benefits in several ways.
ARID expressed strong support for the rulemaking.
RESPONSE
The commission acknowledges the comments provided by ARID and appreciates
its support of the rulemaking.
Comment
DW expressed support for allowing third-party certification of equipment.
DW commented that allowing additional sources of certification will help relieve
the gridlock caused by overloading CARB to oversee national requirements,
some of which are not applicable to the California market and that the additional
avenues for certification will help alleviate the problems of long delays
and high costs for obtaining CARB certifications.
RESPONSE
The commission acknowledges DW's support of the third-party certification
program for Stage I and Stage II equipment and appreciates the overall support
for the rule changes.
Comment
EPA commented that the amendments are primarily clarifications which will
make the rules easier to understand and enforce. EPA commented that third-party
certification is useful since CARB certifications of equipment now must meet
a higher VOC capture efficiency than other states currently need and that
the expanded definition of "Onboard refueling vapor recovery compatible" provides
a much clearer description of what this system is expected to achieve. EPA
offered support to Texas during the rulemaking process.
RESPONSE
The commission appreciates the EPA's acceptance of the Stage I and Stage
II rule revisions and continues to value its support during this rulemaking
process.
Comment
Husky expressed support for the rulemaking in oral testimony.
RESPONSE
The commission appreciates Husky's support of the rulemaking.
Comment
API expressed appreciation for the additional flexibility for third-party
certification outside of the CARB process.
RESPONSE
The commission appreciates API's support of the Stage I and Stage II third-party
certification program and of the increased flexibility it provides.
Comment
API commented that the existing requirement for ORVR compatible equipment
is unnecessary and unjustified. API provided documentation which it claims
indicates CARB's willingness to maintain pre-EVR certifications and to continue
to test and certify pre-EVR equipment.
RESPONSE
The commission does not agree with API's assertion that ORVR compatibility
requirements are unnecessary and unjustified. Incompatibility issues between
ORVR-equipped vehicles and vacuum assist vapor recovery systems are an increasing
threat to air quality in Texas. Vacuum assist vapor recovery systems comprise
92% of the systems installed in the state, while representing only 30% to
35% of the systems in California. CARB has addressed this issue by developing
the EVR program (of which, ORVR compatibility represents a small portion of
the estimated capital cost). Because the commission assessed the cost of the
full EVR program as burdensome and not justified by the estimated amount of
VOC reductions, the commission chose not to implement EVR in Texas. However,
due to the increasing threat of emissions caused by incompatibility with ORVR-equipped
vehicles, the commission acted in 2002 to require ORVR compatibility in order
to protect the health of the citizens of Texas.
API references a November 1, 2004, compliance advisory from the San Luis
Obispo Air Pollution Control District as an indication that CARB may continue
to maintain pre-EVR certifications and even certify equipment to work with
pre-EVR systems. The commission has received no word from CARB indicating
its desire to continue certification under the pre-EVR standards. Regardless,
the compliance advisory notes that facilities within the San Luis Obispo Air
Pollution Control District would not be exempt from ORVR compatibility requirements
and would eventually be required to install a Phase I (Stage I) EVR system.
This referenced "exemption" offered by San Luis Obispo Air Pollution Control
District is more restrictive than the current Texas program. No change was
made in response to this comment.
Comment
API commented that ORVR systems are a significant improvement over vapor
recovery systems and that their effectiveness has been rigorously tested.
RESPONSE
API contends that the in-use effectiveness of ORVR systems is far superior
to vapor recovery systems, but offers no data or references to bolster this
claim. To date, the commission has received no detailed reports from any independent
evaluations conducted to assess the reliability or in-use efficiency of ORVR
systems. No change was made in response to this comment.
Comment
API commented that the commission should reevaluate the cost of implementing
the ORVR requirement and show the specific cost per ton reduced.
RESPONSE
API's comment suggests that the commission attempted to gain additional
VOC reductions and SIP credits with the implementation of the ORVR compatibility
requirement. In truth, the ORVR compatibility requirement was implemented
in order to maintain the efficiency level mandated by the SIP. Given the extremely
high percentage of vacuum assist vapor recovery systems operating in Texas,
not acting to require ORVR compatibility would have resulted in greater emissions.
A detailed cost analysis has been conducted by CARB. In August 2002 CARB
calculated an overall cost-effectiveness of ORVR compatibility at $1.74 per
pound of reactive organic gases (ROG) reduced. Per CARB's calculations, ORVR
compatibility represents 17.5% of the daily ROG reductions achieved by its
EVR program, but only represents approximately 6% of the annual cost of EVR.
No change was made in response to this comment.
Comment
API and ExxonMobil commented that the commission should reexamine the ORVR
compatibility requirement and that the requirement should be delayed until
EPA has determined how it will handle the definition of widespread use.
RESPONSE
This request is beyond the scope of the current rule revision. Moreover,
it is not clear when the EPA will finalize its definition and issue guidance
to the states. Therefore, the commission will continue to ensure that Stage
II systems in the 16 one-hour ozone nonattainment counties operate at the
prescribed 95% efficiency level in the interim. No change was made in response
to this comment.
Comment
ExxonMobil expressed support for making the requirements as flexible as
possible.
RESPONSE
The commission appreciates ExxonMobil's support for flexibility within
the regulations.
2.
FILLING OF GASOLINE STORAGE VESSELS (STAGE I) FOR MOTOR VEHICLE FUEL DISPENSING FACILITIES
30 TAC §115.222, §115.223
STATUTORY AUTHORITY
The amendments are adopted under TWC, §5.103, and §5.105, which
authorize the commission to adopt rules necessary to carry out its powers
and duties under the TWC; and under THSC, §382.017, which authorizes
the commission to adopt rules consistent with the policy and purposes of the
Texas Clean Air Act. The amendments are also adopted under THSC, §382.002,
which establishes the commission's purpose to safeguard the state's air resources,
consistent with the protection of public health, general welfare, and physical
property; §382.011, which authorizes the commission to control the quality
of the state's air; §382.012, which authorizes the commission to prepare
and develop a general, comprehensive plan for the control of the state's air;
and §382.208, which authorizes the commission to develop and implement
transportation programs and other measures necessary to demonstrate attainment
and protect the public from exposure to hazardous air contaminants from motor
vehicles.
The adopted amendments implement TWC, §5.103, concerning Rules and §5.105,
General Policy; and under THSC, §382.002, relating to Policy and Purpose, §382.011,
General Powers and Duties, §382.012, State Air Control Plan, §382.017,
Rules, and §382.208, Attainment Program.
§115.222.Control Requirements.
A vapor balance system will be assumed to comply with the specified
emission limitation of §115.221 of this title (relating to Emission Specifications)
if the following conditions are met:
(1)
the container is equipped with a submerged fill pipe as
defined in §101.1 of this title (relating to Definitions). The path through
the submerged fill pipe to the bottom of the tank must not be obstructed by
a screen, grate, or similar device whose presence would preclude the determination
of the submerged fill pipe's proximity to the tank bottom while the submerged
fill tube is properly installed;
(2)
a vapor-tight return line is connected before gasoline
can be transferred into the storage container;
(3)
no avoidable gasoline leaks, as detected by sight, sound,
or smell, exist anywhere in the liquid transfer or vapor balance systems;
(4)
the vapor return line's cross-sectional area is at least
one-half of the product drop line's cross-sectional area;
(5)
in the Beaumont/Port Arthur, Dallas/Fort Worth, El Paso,
and Houston/Galveston areas, the only atmospheric emission during gasoline
transfer into the storage container is through a storage container vent line
equipped with a pressure-vacuum relief valve set to open at a pressure of
no more than eight ounces per square inch (3.4 kPa) or in accordance with
the facility's Stage II system as defined in the California Air Resources
Board (CARB) Executive Order(s) or third-party certification for the facility;
(6)
in the covered attainment counties, as defined in §115.10
of this title (relating to Definitions), the only atmospheric emission during
gasoline transfer into the storage container is through a storage container
vent line equipped with a pressure-vacuum relief valve set to open at a pressure
of no more than eight ounces per square inch (3.4 kPa);
(7)
after unloading, the tank-truck tank is kept vapor-tight
until the vapors in the tank-truck tank are returned to a loading, cleaning,
or degassing operation and discharged in accordance with the control requirements
of that operation;
(8)
the gauge pressure in the tank-truck tank does not exceed
18 inches of water (4.5 kPa) or vacuum exceed six inches of water (1.5 kPa);
(9)
no leak, as defined in §101.1 of this title, exists
from potential leak sources when measured with a hydrocarbon gas analyzer;
(10)
in the Beaumont/Port Arthur, Dallas/Fort Worth, El Paso,
and Houston/Galveston areas, any storage tank installed after November 15,
1993, which is required to install Stage I control equipment must be equipped
with a non-coaxial Stage I connection. In addition, any modification to a
storage tank existing prior to November 15, 1993, requiring excavation of
the top of the storage tank must be equipped with a non-coaxial Stage I connection,
even if the original installation utilized coaxial Stage I connections. At
any facility for which a Stage II system was installed prior to November 15,
1993, the Stage I system utilized must be consistent with the relevant requirements
of the CARB Executive Order for the Stage II system installed at that facility;
(11)
in the covered attainment counties, any storage tank installed
after December 22, 1998 which is required to install Stage I control equipment
must be equipped with a non-coaxial Stage I connection. In addition, any modification
to a storage tank existing prior to December 22, 1998, requiring excavation
of the top of the storage tank must be equipped with a non-coaxial Stage I
connection, even if the original installation utilized coaxial Stage I connections;
and
(12)
any motor vehicle fuel dispensing facility that no longer
meets an exemption in §115.227 of this title (relating to Exemptions)
because of an increase in throughput shall have 120 days to come into compliance
with the provisions of this subsection and will remain subject to the provisions
of this section, even if its gasoline throughput later falls below exemption
limits. However, if gasoline throughput exceeds the exemption limit due to
a natural disaster or emergency condition for a period not to exceed one month,
upon written request, the executive director may grant a facility continued
exempt status.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the Office of
the Secretary of State on March 24, 2005.
TRD-200501290
Stephanie Bergeron Perdue
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: April 13, 2005
Proposal publication date: December 3, 2004
For further information, please call: (512) 239-6087
4.
CONTROL OF VEHICLE REFUELING EMISSIONS (STAGE II) AT MOTOR VEHICLE FUEL DISPENSING FACILITIES