Robert J. Huston, Chairman 

R. B. "Ralph" Marquez, Commissioner 

Kathleen Hartnett White, Commissioner 

Margaret Hoffman, Executive Director 

TEXAS COMMISSION ON ENVIRONMENTAL QUALlt.Yi .:.J;i 1 :, 

November 14, 2002 

Mr. Gregg Cooke 

Regional Administrator 

Protecting Texas by Reducing and Preventing Pollution 

U.S. Environmental Protection Agency, Region 6 

1445 Ross Avenue 

Dallas, Texas 75202-2733 

Dear Mr. Cooke: 

tj~ r F' F~ ;--.. : ~ 

On November 6, 2002, the Texas Commission on Environmental Quality (Commission) adopted revisions to 

the State Implementation Plan (SIP). 

The Commission adopted amendments to §§115.227 and 115.240- 115.249 in 30 TAC Chapter 115, Control 

of Air Pollution from Volatile Organic Compounds; Subchapter C, Volatile Organic Compound Transfer 

Operations; Division 2, Filling of Gasoline Storage Vessels (Stage I) for Motor Vehicle Fuel Dispensing 

Facilities; and Division 4, Control of Vehicle Refueling Emissions (Stage II) at Motor Vehicle Fuel 

Dispensing Facilities; and revisions to the SIP concerning Stage II Vapor Recovery Program. These 

amendments require more frequent testing of vapor recovery systems at gasoline dispensing facilities in lieu 

of adopting the California Enhanced Vapor Recovery program rules, while continuing to maintain the federal 

requirement for a 95% vapor recovery rate. The amendments also require that Stage II vapor recovery 

systems be compatible with onboard refueling vapor recovery equipment mandated by the federal 

government. 

Enclosed are the proposed revisions to the SIP, a public hearing certification, a complete record of the public 

hearing, and the accompanying order. I look forward to your expeditious approval of these SIP revisions. 

If(; 

Robert tfi(--- Chairman 

RJH/lb 

cc: The Honorable Rick Perry, Governor of Texas 

Ms. Wendy Wyman, Environmental and Natural Resources Policy Director, Office of the Governor 

Ms. Margaret Hoffman, Executive Director, Texas Commission on Environmental Quality 

P.O. Box 13087 • Austin, Texas 78711-3087 • 512/239-1000 • Internet address: www.tceq.state.tx.us 
TEXAS NATURAL RESOURCE CONSERVATION COMMISSION 

THE STATE OF TEXAS § 

COUNTY OF TRAVIS§ 

This is to certify that the attached are true and correct copies of a revision to the Texas State 

Implementation Plan, adopted on November 6, 2002, pursuant to 40 Code of Federal Regulations (CFR) 

§51.104. Prior to the adoption of this revision, a public hearing was held pursuant to 40 CFR §51.102(a), and 

notice of the hearing was given which conformed to the requirements of 40 CFR §51.1 02( d). I am the custodian 

of the records of the Texas Commission on Environmental Quality (Commission). 

To certify which, witness my hand and th~ seal of the Commission, this the 14th day of 

November, 2002. 

Texas Commission Environmental Quality 
Texas Commission on Environmental Quality 

Public Hearing 

August 8, 2002 

Concerning Revisions to 30 T AC Chapter 115 and the 

State Implementation Plan for the Control of Ozone Air Pollution 

(Stage II Vapor Recovery Program) 

Rule Log No. 2002-012-115-AI 
INTRODUCTION 

The commission held a public hearing in Austin on August 8, 2002, to consider amendments to §§115.227 

and 115.240 - 115.249, concerning the control of gasoline vapors from storage vessels and dispensing 

facilities, of 30 TAC Chapter 115, Control of Air Pollution from Volatile Organic Compounds; and 

corresponding revisions to the state implementation plan (SIP) narrative, Stage II Vapor Recovery Program 

SIP Revision. These amendments require more frequent testing of vapor recovery systems at gasoline 

dispensing facilities in lieu of adopting the California Enhanced Vapor Recovery program rules, while 

continuing to maintain the federal requirement for a 95% vapor recovery rate. The amendments also 

require that Stage II vapor recovery systems be compatible with onboard refueling vapor recovery 

equipment mandated by the federal government. 

The comment period closed on August 12, 2002. All testimony and comments have been reviewed and 

seriously considered. This volume contains a complete record of the public hearing and is divided into the 

following four sections: 

o Public Notification and Proposal 

o Written and Oral Testimony 

o Evaluation of Testimony 

o Staff Recommendations 

Additional copies of this hearing record are maintained in the commission's central office at 12100 North 

IH-35, Austin, Texas 78753. For further information, contact Alan Henderson at (512) 239-1510. 
PUBLIC 

NOTIFICATION AND 

PROPOSAL 
PUBLIC NOTIFICATION 

Notification to the public of the proposed revisions was conducted by the following procedures: 

1. Publication of the notice of public hearing in the following newspapers on the dates listed. 

Austin American Statesman; July 1, 2002 

El Paso Times; June 29, 2002 

Fort Worth Star-Telegram; July 2, 2002 

Houston Chronicle; July 1, 2002 

2. Publication of the public hearing notice in the Texas Register (27 TexReg 6460) and proposed rules 

in the Texas Register (27 TexReg 6197) on July 12, 2002. 

3. Correspondence forwarding the notice of public hearing to the following officials and agencies: 

Speaker of the House 

Lieutenant Governor 

City of Dallas Department of Aviation 

City of Dallas Environmental and Health Services 

Dallas Department of Health and Human Services 

El Paso City-County Health and Environmental District 

El Paso Metropolitan Planning Organization 

Federal Highway Administration 

Fort Worth Environmental Management Department 

Galveston County Health District 
Houston Department of Health and Human Services 

Harris County Pollution Control Department 

North Central Texas Council of Governments 

Houston-Galveston Area Council 

South East Texas Regional Planning Commission 

Texas Department of Transportation 

Texas Transportation Institute 

Victoria Metropolitan Planning Organization 

Arkansas Department of Pollution Control and Ecology 

Louisiana Department of Environmental Quality 

New Mexico Air Quality Bureau 

Oklahoma Department of Environmental Quality 

United States Environmental Protection Agency 
EXAMPLE OF 

NEWSPAPER CLASSIFIED AD 

Houston Chronicle 

July 1, 2002 

NOTICE OF PUBLIC HEARING BY THE TEXAS 

NATURAL RESOURCE CONSERVATION COM· 

MISSION ON PROPOSED REVIS I NS TO 30 TAC 

CHAPTER llSANDTO STATE 

IMPLEMENTATI N 

The Texas Natural Resource Conservation 

Commission (commission) will conduct a pubnc hear· 

ing to receive testimony r revisions to 30 T AC 

Chapter 115, Control of tion from Volatile 

Organic Compounds, and te implementation plan {SIP) narrative, Stage II Vapor Recovery Program SIP Revision, e requirements of the 

Texas Health and de, §382.017; Texas 

Government Code, B, Chapter 2001; and 

40 Code of Federal Regul §51.102, of the United 

States Environmental Protection Agency (EPA) reg- ulations concerning SIPs. The amendments to Chapter 115 are proposed as a revision to the SIP. 

These proposed amendments to Chapter 115 would . required more frequent testing of vapor recovery sys- tems at gasoline dispensing facilities in lieu of adOpting the California Enhanced Vapor Recovery Program rules, while continuing to maintain the federal require- ment for a 95% vapor recovery rate. The proposed amendments would also require that Stage II vapor · recovery systems be compatible with onboard refueling vapor recovery equipment mandated by the federal government. A public hearing on this proposal will be held in Austin, Texas, on August a, 2002, at 2:00 p.m., at the Texas 

Natural Resource Conservation Commission, 12100 

Park 35 Circle, Buildin~ F, Room 2210. The hearing is 

structured for the rece1pt of oral or written comments 

by interested persons. Individuals may t oral 

statements when called upon in order of ·n. Open discussion will not occur during ; however, agency staff will be available t 

proposal 30 minutes prior to the heann'jl and will answer questions before and after the heanng. Comments may be submitted to Lola Brown, Office of 

Environmental Policy, Analysis, and Assessment, MC 

2051 P.O. Box 13087, Austin, Texas 78711-3087; or by fax 

at \512) 239-4808. All comments must be receiveCI by 5:00p.m on August 12, 2002, and should reference Rule 

Log No. 2002·012·115-AI. For further information on the propased revisions, please contact Ashley Forbes 

at (512) 239-0493 or Alan Henderson at (512) 239·1510. 

Copies of the proposed rules and SIP revisions can be 

obtained from the commission's website at: 

http://www.tnrcc.state. tx.us/ oprd/ rules/propadop.ht ml. 

Persons with disabilities who have special communication or other accommodation needs are planning to 

attend the hearing should contact the agency at (512) 239-4900. Requests should be made as far in advance 

as POSSible. · . . · Issued in Austin, Texas, on June 26, 2002. 
(40) COMPANY: Your C Store, Inc.; DOCKET NUMBER:

2002-0139-PST-E; IDENTIFIER: PST Facility Identification Number

0036119; LOCATION: La Grange, Fayette County, Texas; TYPE OF

FACILITY: convenience store with retail sales of gasoline; RULE

VIOLATED: 30 TAC §334.50(a)(1)(A) and the Code, §26.3475, by

failing to provide a method of release detection capable of detecting release; 30 TAC §334.8(c)(4)(B) and (5)(A)(i), and the Code,

§26.346(a) and §26.3467(a), by failing to submit a UST registration and self-certification form and make available to a common

carrier a valid, current delivery certificate; PENALTY: $14,375;

ENFORCEMENT COORDINATOR: Sarah Slocum (512) 239-6589;

REGIONAL OFFICE: 1921 Cedar Bend Drive, Suite 150, Austin,

Texas 78758-5336, (512) 339-2929.

TRD-200204190

Paul Sarahan

Director, Litigation Division

Texas Natural Resource Conservation Commission

Filed: July 2, 2002

♦♦♦

Notice of Public Hearing (Chapter 115 and State

Implementation Plan)

The Texas Natural Resource Conservation Commission (commission)

will conduct a public hearing to receive testimony regarding revisions

to 30 TAC Chapter 115, Control of Air Pollution from Volatile Organic Compounds, and to the state implementation plan (SIP) narrative,

Stage II Vapor Recovery Program SIP Revision, under the requirements

of the Texas Health and Safety Code, §382.017; Texas Government

Code, Subchapter B, Chapter 2001; and 40 Code of Federal Regulations, §51.102, of the United States Environmental Protection Agency

(EPA) regulations concerning SIPs. The amendments to Chapter 115

are proposed as a revision to the SIP.

These proposed amendments to Chapter 115 would require more frequent testing of vapor recovery systems at gasoline dispensing facilities

in lieu of adopting the California Enhanced Vapor Recovery Program

rules, while continuing to maintain the federal requirement for a 95%

vapor recovery rate. The proposed amendments would also require that

Stage II vapor recovery systems be compatible with onboard refueling

vapor recovery equipment mandated by the federal government.

A public hearing on this proposal will be held in Austin, Texas, on

August 8, 2002, at 2:00 p.m., at the Texas Natural Resource Conservation Commission, 12100 Park 35 Circle, Building F, Room 2210. The

hearing is 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 occur during the

hearing; however, agency staff will be available to discuss the proposal

30 minutes prior to the hearing and will answer questions before and

after the hearing.

Comments may be submitted to Lola Brown, Office of Environmental

Policy, Analysis, and Assessment, MC 205, P.O. Box 13087, Austin,

Texas 78711-3087; or by fax at (512) 239-4808. All comments must

be received by 5:00 p.m. on August 12, 2002, and should reference

Rule Log No. 2002-012-115-AI. For further information on the

proposed revisions, please contact Ashley Forbes at (512) 239-0493

or Alan Henderson at (512) 239-1510. Copies of the proposed rules

and SIP revisions can be obtained from the commission’s website at:

http://www.tnrcc.state.tx.us/oprd/rules/propadop.html.

Persons with disabilities who have special communication or other accommodation needs who are planning to attend the hearing should contact the agency at (512) 239-4900. Requests should be made as far in

advance as possible.

TRD-200204084

Stephanie Bergeron

Director, Environmental Law Division

Texas Natural Resource Conservation Commission

Filed: June 28, 2002

♦♦♦

Notice of Public Hearing (Chapter 115 and State

Implementation Plan)

The Texas Natural Resource Conservation Commission (commission)

will conduct a public hearing to receive testimony regarding proposed

revisions to 30 TAC Chapter 115 and to the state implementation plan

(SIP) under the requirements of the Texas Health and Safety Code,

§382.017; Texas Government Code, Subchapter B, Chapter 2001; and

40 Code of Federal Regulations, §51.102, of the United States Environmental Protection Agency (EPA) regulations concerning SIPs.

The proposed new §115.741, Emission Specifications, and associated

SIP revision would change the emission rate for all highly-reactive

volatile organic compounds emitted from each flare at an account, as

proposed by the commission on June 5, 2002, and published in the

June 21, 2002, issue of the Texas Register (27 TexReg 5394). This proposed new section would replace the currently proposed section which

the commission is now withdrawing. The proposed SIP includes a revision to the industrial, commercial, and institutional source control

requirements which are already included within the federally approved

SIP for the Houston/Galveston ozone nonattainment area. Specifically,

the revision concerns the emission rate for all highly-reactive volatile

organic compounds emitted from each flare at an account, as proposed

by the commission on June 5, 2002.

A Chapter 115 proposal and corresponding SIP revision was originally

published for hearings on July 18 and 22, 2002. Based on the nature

of the changes to the emission specifications proposed on June 5, 2002

in §115.741, the commission has withdrawn §115.741, proposed new

§115.741, and scheduled an additional hearing. Persons who submit

comments during the July hearings will not be required to resubmit

their comments, because the evaluation of testimony will include comments from all hearings and comment periods. Those persons may,

however, submit additional comment if they so desire on both the Chapter 115 and the SIP revisions proposed on June 5 and 26, 2002.

A public hearing on this proposal will be held in Houston on August

6, 2002, at 10:00 a.m. in the City Hall Council Chambers, 2nd Floor,

located at 901 Bagby. Individuals may present oral statements when

called upon in order of registration. A four-minute time limit may be

established at the hearings to assure that enough time is allowed for

every interested person to speak. Open discussion will not occur during the hearing; however, an agency staff member will be available to

discuss the proposal 30 minutes prior to the hearing and will answer

questions before and after the hearing.

Written comments may be submitted to Kelly Keel, MC 206,

Office of Environmental Policy, Analysis, and Assessment, Texas

Natural Resource Conservation Commission, P.O. Box 13087,

Austin, Texas 78711-3087, faxed to (512) 239-4808, or emailed

to siprules@tceq.state.tx.us for the SIP revisions (Rule Log

Number 2002-046-SIP-AI) and Chapter 115 (Rule Log Number

2002-046-115-AI). Comments must be received by 5:00 p.m., August

6, 2002, and should reference Rule Log Number 2002-046-SIP-AI

for the SIP, and 2002-046-115-AI for Chapter 115. For further

information on this proposal, please contact Ms. Kelly Keel, Strategic

Assessment Division at (512) 239-3607, Mr. Bradley Oehler, Strategic

Assessment Division at (512) 239-0599, or Mr. Alan Henderson, Air

Policy and Regulations Division, at (512) 239-1510. Copies of the

27 TexReg 6460 July 12, 2002 Texas Register
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.

ANNOUNCEMENT OF HEARING

The commission will hold a public hearing on this proposal in

Austin on August 12, 2002, at 10:00 a.m. in Building E, Room

201S, at the commission’s central office located at 12100 Park

35 Circle. The hearing is 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 hearing; however,

commission staff members will be available to discuss the proposal 30 minutes before the hearing and will answer questions

before and after the hearing.

Persons with disabilities who have special communication or

other accommodation needs who are planning to attend the

hearing should contact the Office of Environmental Policy,

Analysis, and Assessment at (512) 239-4900. Requests should

be made as far in advance as possible.

SUBMITTAL OF COMMENTS

Comments may be submitted to Patricia Durón Office of Environmental Policy, Analysis, and Assessment, MC 205, P.O.

Box 13087, Austin, Texas 78711-3087 or faxed to (512) 239-

4808. All comments should reference Rule Log Number 2002-

041-116-AI. Comments must be received by 5:00 p.m., August

12, 2002. Comments received prior to this publication have been

considered and will be formally addressed in the "RESPONSE

TO COMMENTS" section of the adoption preamble publication

and are not required to be resubmitted. For further information

or questions concerning this proposal, please contact Debi Dyer,

Policy and Regulations Division, at (512) 239-3972.

STATUTORY AUTHORITY

The new section is proposed under Texas Water Code (TWC),

§5.103, which authorizes the commission to adopt rules necessary to carry out its powers and duties under the TWC; and under

THSC, TCAA, §382.017, concerning Rules, which authorizes the

commission to adopt rules consistent with the policy and purposes of the TCAA. The new section is also proposed under

TCAA, §382.011, concerning General Powers and Duties, which

authorizes the commission to control the quality of the state’s air;

§382.062, concerning Application, Permit, and Inspection Fees,

which requires the commission to collect fees for inspections;

§382.0622, concerning Clean Air Act Fees, which restricts the

use of Clean Air Act fees; and the entire TCAA (§§382.001 et

seq.), which provides authority for all of the air quality programs

which the fees are necessary to support.

The proposed new section implements TCAA, §§382.011,

382.017, 382.062, 382.0622, and TCAA, §§382.001 et seq..

§106.50. Registration Fees for Permits by Rule.

(a) A registrant who submits a permit by rule (PBR) registration for review by the commission shall remit one of the following fees

with the PI-7 registration form:

(1) $100 for small businesses, as defined in Texas Government Code, §2006.001; or

(2) $450 for all other entities.

(b) This fee does not apply to a PI-7 registration submitted

solely for the purpose of establishing a federally enforceable emissions

limit under §106.6 of this title (relating to Registration of Emissions).

(c) This fee is for PBR registrations that are received on or

after November 1, 2002.

(d) All PBR fees will be remitted in the form of a check, certified check, electronic funds transfer, or money order made payable to

the Texas Commission on Environmental Quality (TCEQ) and submitted concurrently with the registration to the TCEQ, P.O. Box 13087,

MC 214, Austin, Texas 78711-3087. No fees will be refunded.

This agency hereby certifies that the proposal has been reviewed

by legal counsel and found to be within the agency’s legal authority to adopt.

Filed with the Office of the Secretary of State on June 28, 2002.

TRD-200204128

Stephanie Bergeron

Director, Environmental Law Division

Texas Natural Resource Conservation Commission

Earliest possible date of adoption: August 11, 2002

For further information, please call: (512) 239-6087

♦♦♦

CHAPTER 115. CONTROL OF AIR

POLLUTION FROM VOLATILE ORGANIC

COMPOUNDS

SUBCHAPTER C. VOLATILE ORGANIC

COMPOUND TRANSFER OPERATIONS

The Texas Natural Resource Conservation Commission (commission) proposes amendments to §§115.227 and 115.240 -

115.249 concerning the control of gasoline vapors from storage

vessels and dispensing facilities. The commission also proposes

revisions to the state implementation plan (SIP) narrative, Stage

II Vapor Recovery Program SIP Revision. The commission proposes to submit these amended rule sections and revised SIP

narrative to the United States Environmental Protection Agency

(EPA) as proposed revisions to the SIP.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS

FOR THE PROPOSED RULES

The commission adopted the Stage II rules and SIP narrative

on October 16, 1992 (revised on November 10, 1993) 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 the vapor recovery equipment. The CARB is currently implementing an enhanced vapor

recovery (EVR) program with a completion date of April 2003,

after which it will no longer certify non-EVR systems. In lieu of incorporating the CARB EVR program, the commission is proposing a requirement for more frequent testing of vapor recovery

systems at gasoline dispensing facilities. Specifically, the commission proposes to change the five-year requirement for full

system tests to a one-year requirement. By doing so, the commission believes that the increased testing frequency will continue to satisfy the federal requirement to maintain a vapor recovery rate of 95%. The commission proposes these amendments to Chapter 115, Control of Air Pollution from Volatile Organic Compounds (VOC).

SECTION BY SECTION DISCUSSION

PROPOSED RULES July 12, 2002 27 TexReg 6197
Throughout this rulemaking the outdated term "undesignated

head" is proposed to be replaced with the correct term "division"

in response to revised Texas Register rules published in the

February 13, 1998 issue of the Texas Register (23 TexReg

1289). The name of the commission is proposed to be changed

to the Texas Commission on Environmental Quality because the

rules are anticipated to become effective after the date the name

change is to occur, September 1, 2002. The term "commission"

is proposed to be changed to "executive director" in each

location where the action being taken is directly associated with

the executive director or his staff. In addition, various stylistic

and editorial changes are proposed to comply with the current

Texas Register rules and style manual. Justification for these

changes will not be discussed any further in this preamble other

than to point out where each change has been made.

Subchapter C, Division 2, Stage I Vapor Recovery

The proposed amendments to §115.227, Exemptions, would remove language that could potentially provide a Stage I exemption

for a facility that is required to have Stage II vapor recovery. All

Stage II vapor recovery systems must include Stage I vapor recovery in order to operate properly. The proposed amendments

also add section titles the first time each section is referenced in

§115.227.

Subchapter C, Division 4, Stage II Vapor Recovery

The proposed amendments to §115.240, Stage II Vapor Recovery Definitions, include stylistic changes previously discussed in

this preamble. The proposed amendments would also delete

the definition independent small business marketer of gasoline

because the term is no longer used in this division. The proposed amendments would also provide additional definitions for

industry-specific terminology presented in the rules, which include the definitions for onboard refueling vapor recovery and

onboard refueling vapor recovery (ORVR) compatible. The proposed amendments add a table listing the Stage II vapor recovery systems certified by a CARB executive order and change

the section title to Stage II Vapor Recovery Definitions and List

of California Air Resources Board Certified Stage II Equipment.

The proposed amendments to §115.241, Emissions Specifications, remove the reference to specific nonattainment areas as

being subject to the controls of the division and place the reference in §115.249, Counties and Compliance Schedules, where

it more appropriately belongs.

The proposed administrative and stylistic amendments to

§115.242, Control Requirements, would remove the reference

to specific nonattainment areas as being subject to the controls

of the division and place the reference in §115.249 where it

more appropriately belongs, and would change "undesignated

head" to "division." The proposed amendments to §115.242(2)

would correct two section numbers and titles in reference

citations to 30 TAC Chapter 334; delete two reference citations

to §115.249 which no longer apply; spell out the acronym "UL"

as "Underwriters Laboratories"; and delete one superfluous

reference to the acronym TNRCC.

The proposed technical amendments to §115.242 would clarify which CARB-certified Stage II vapor recovery systems would

be authorized for use by the executive director. Also, the proposed amendments would allow the executive director to continue to recognize any Executive Orders which CARB decertifies in the future. Due to the federal mandate requiring motor

vehicle manufacturers to make vehicles equipped with ORVR,

the incompatibility between ORVR and Stage II vapor recovery

should be addressed as this incompatibility may prove to be a

new source of emissions. In order to maintain SIP integrity and

to prevent new emissions, the proposed amendments include

a compliance schedule for gasoline dispensing facilities to upgrade their Stage II vapor recovery systems to be ORVR compatible. The proposed amendments would also eliminate the requirement to post the "TNRCC Stage II Vapor Recovery Hotline" on each gasoline dispensing pump equipped with a Stage

II vapor recovery system. The majority of the calls received on

this hotline should be directed to either the Texas Department

of Agriculture Weights and Measures for issues involving price

discrepancies at the pump or to the facility owner or operator for

customer service inquiries. Finally, other control requirements

have been updated to ensure that the vapor recovery systems

operate at the prescribed 95% level of efficiency.

The proposed amendments to §115.243, Alternate Control Requirements, would remove the reference to specific nonattainment areas as being subject to the controls of the division and

place the reference in §115.249, where it more appropriately belongs.

The proposed amendments to §115.244, Inspection Requirements, would remove the reference to specific nonattainment areas as being subject to the controls of the division and place the

reference in §115.249, where it more appropriately belongs. The

word "utilize" is proposed to be replaced with the word "use" in

§115.244(2).

The proposed administrative and stylistic amendments to

§115.245, Testing Requirements, would remove the reference

to specific nonattainment areas as being subject to the controls

of the division and place the reference in §115.249, where it

more appropriately belongs. The proposed amendments would

also delete several superfluous references to the acronym

TNRCC, and change "TNRCC" to "executive director" in several locations because the executive director (or his staff) is

responsible for program management. Finally, the name of the

commission is proposed to be changed in one location.

The proposed technical amendments to §115.245 also would

provide a directive to use the most recent Stage II vapor recovery test procedures handbook, add language to allow air-to-liquid ratio (A/L ratio) testing for assist systems, and require annual compliance testing of Stage II equipment to ensure that the

equipment is operating properly. Full system testing must be

accomplished at least once in any 12-month period. The term

"12-month period" is used in the calendar sense and is not meant

to imply a specific number of days. For example, if a system test

was completed in a given month, such as October, 2003, then

another inspection must be done at some time in the subsequent

12-month period from November 1, 2003 through the end of October, 2004. If a system test was done on October 5, 2003, then

the facility has until October 31, 2004 to complete the next system test. If the facility waited until October 31, 2003 to do the

next system test, the following test would still be due no later

than October 31, 2004. However, if the facility made an "early"

system test on August 15, 2004, regardless of the reason the

test was conducted earlier than required, then the following system test would be due no later than August 31, 2005. Finally,

the commission proposes to implement a registry of testers who

have certified their knowledge of the State of Texas Vapor Recovery Test Procedures Handbook.

The proposed amendments to §115.246, Recordkeeping Requirements, would remove the reference to specific nonattainment areas as being subject to the controls of the division and

27 TexReg 6198 July 12, 2002 Texas Register
place the reference in §115.249, where it more appropriately belongs. Other proposed amendments include changing the term

"undesignated head" to "division" in accordance with Texas Register rules, changing the legalistic term "pursuant to" to "under" in

two places to comply with the current style guidance, and changing references from the "TNRCC" to the "executive director" in

two locations because the executive director (or his staff) is the

more appropriate recipient of facility records.

The proposed amendments to §115.247, Exemptions, would remove the reference to specific nonattainment areas as being

subject to the controls of the division and place the reference in

§115.249, where it more appropriately belongs, and would delete

one superfluous reference to the Texas Natural Resource Conservation Commission.

The proposed amendments to §115.248, Training Requirements, would remove the reference to specific nonattainment

areas as being subject to the controls of the division and place

the reference in §115.249, where it more appropriately belongs;

delete one superfluous reference to the TNRCC; and change

"TNRCC" to "executive director" in several locations because

the executive director (or his staff) is responsible for program

management.

The proposed amendments to §115.249, Counties and Compliance Schedules, would specify the counties in which these

rules apply; delete the compliance dates which have passed and

change the language to "shall continue to comply with"; and add

the compliance schedule for ORVR compatibility. The proposed

amendments would also change the term undesignated head to

division.

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT

Jeffrey Horvath, Analyst with Strategic Planning and Appropriations, has determined that for the first five-year period the proposed amendments are in effect, no significant fiscal implications

are expected for the agency resulting from the implementation

of the proposed amendments. However, costs are anticipated

for units of state or local government, businesses, or individuals who own or operate gasoline stations or gasoline dispensing

facilities in the 16 ozone nonattainment counties in the state. Although costs per facility are not anticipated to be significant, total

overall costs for all facilities in the ozone nonattainment counties

are anticipated to be significant.

The proposed amendments would require more frequent testing of vapor recovery systems at gasoline dispensing facilities in

ozone nonattainment counties. Vapor recovery systems capture

gasoline vapors before the vapors escape into the atmosphere

and cause the formation of ozone and smog. The proposed

amendments also include a compliance schedule for gasoline

dispensing facilities to upgrade their Stage II vapor recovery systems to be compatible with ORVR systems on many vehicles.

The proposed amendments are expected to allow the state to

continue to satisfy the federal requirement to maintain a vapor

recovery rate of 95% in the 16 ozone nonattainment counties of

Brazoria, Chambers, Collin, Dallas, Denton, El Paso, Fort Bend,

Galveston, Hardin, Harris, Jefferson, Liberty, Montgomery, Orange, Tarrant, and Waller. The proposed amendments will also

be submitted to the EPA as proposed revisions to the SIP.

The commission proposes these amendments in lieu of incorporating the new CARB enhanced vapor recovery program. Current rules follow the CARB certification procedures for vapor recovery equipment. The CARB is currently implementing an enhanced vapor recovery program which consists of six modules

and would require gasoline dispensing facilities to install new vapor recovery systems including in-station diagnostic computer

equipment to monitor emissions. This enhanced vapor recovery program has been estimated to cost between $30,000 and

$60,000 per facility.

Instead of implementing the CARB enhanced vapor recovery

systems, the commission is proposing amendments which will

require more frequent testing of vapor recovery systems at gasoline dispensing facilities in the 16 ozone nonattainment counties

in the state. The commission believes that the increase in testing

and the upgrade of vapor recovery systems to make them ORVR

compatible will continue to satisfy federal SIP requirements for

vapor recovery.

Currently, gasoline stations in ozone nonattainment areas must

perform full system tests every five years to ensure that vapor

recovery systems are operating correctly. The proposed amendments would require full system tests every 12 months. There

are seven components to the full suite of performance tests.

The full suite of tests costs station owners and operators approximately $550 every five years. An annual pressure decay

test is also required for those years when the full suite of tests

is not conducted. This stand-alone test normally costs about

$300. The proposed amendments would require testing every

12 months and cost station owners and operators $550 each

year, with the pressure decay test included in the $550. Therefore, over a five-year period, gas station owners and operators

would pay approximately $200 more each year for the additional

testing. There are approximately 7,400 facilities with Stage II

vapor recovery equipment installed that will be subject to the

proposed testing requirements. The total cost for the additional

testing requirements for all of these facilities is estimated to be

$1,480,000.

The proposed amendments include a compliance schedule for

gasoline dispensing facilities in the ozone nonattainment counties to upgrade their vapor recovery systems to be compatible

with the ORVR systems on many newer vehicles. The upgrade

is necessary in order to continue to satisfy the SIP requirements

to maintain vapor recovery rates at 95% efficiency. The EPA required a phase-in for new vehicles to have ORVR systems beginning in 1998. Data provided by EPA indicates that ORVR may

be more efficient than Stage II vapor recovery, however, when

an ORVR vehicle refuels at a facility that uses a vacuum assist

Stage II system (the type of vapor recovery system used extensively in Texas), there is a potential to produce significant fugitive

emissions. A growing percentage of the total number of vehicles

in the ozone nonattainment areas now have ORVR systems.

Approximately 30% of the Stage II vapor recovery systems

at gasoline dispensing facilities in the nonattainment counties

are already ORVR compatible. Some stations will have to

only make minor upgrades to become ORVR compatible and

depending on the availability of retrofit kits provided by the manufacturers, some systems may have to be completely removed

and replaced. The full replacement of Stage II vapor recovery

dispenser, hose, and nozzle systems is estimated to be $1,100

per dispenser. Assuming that 70% of the 7,400 facilities in the

ozone nonattainment areas are not ORVR compatible, and

each facility has an average of six dispensers, at $1,100 per

PROPOSED RULES July 12, 2002 27 TexReg 6199
dispenser, total costs for those facilities requiring total upgrades

are estimated to be $34,188,000.

There will be additional testing costs for units of state or local

government that own or operate gasoline dispensing facilities in

the 16-county ozone nonattainment areas. Refueling facilities

may be owned by the Texas Department of Transportation, or by

cities or counties. It is not known how many of the estimated

7,400 facilities with vapor recovery equipment in the four ozone

nonattainment areas are owned or operated by units of state or

local government. Many of these facilities may be exempt from

the vapor recovery requirements as they may have been constructed prior to November 15, 1992 and have a documented

throughput of less than 10,000 gallons per month. Those that

are not exempt will pay an additional $200 per year in testing

costs. In addition, those facilities that must replace the Stage II

vapor recovery dispenser, hose, and nozzle systems will pay an

estimated $1,100 per dispenser.

For the average gas station owner or operator with six dispensers, costs to become ORVR compatible would be an

estimated $6,600 plus the additional testing costs of $200 per

year. The upgrade costs would be one-time costs, but the

testing costs would be recurring.

PUBLIC BENEFITS AND COSTS

Mr. Horvath has also determined that for each year of the first five

years the proposed amendments are in effect, the public benefit anticipated from the enforcement of and compliance with the

proposed amendments would include the maintenance of SIP requirements to keep vapor recovery rates at the 95% prescribed

levels of efficiency while implementing a less expensive methodology than the enhanced vapor recovery system under the CARB

initiative.

There will be costs to comply with the proposed amendments

which could be significant, for businesses and individuals who

own or operate gasoline dispensing facilities in the 16-county

ozone nonattainment areas.

The proposed amendments will require more frequent testing of

vapor recovery systems at gasoline dispensing facilities in the

16 ozone nonattainment counties in the state. Currently, gasoline stations in ozone nonattainment areas must perform full system tests every five years to ensure that vapor recovery systems

are operating correctly. The proposed amendments would require full system tests every 12 months. There are seven components to the full suite of performance tests. The full suite of

tests costs station owners and operators approximately $550 every five years. An annual pressure decay test is also required

for those years when the full suite of tests is not conducted.

This stand-alone test normally costs about $300. The proposed

amendments would require testing every 12 months and cost

station owners and operators $550 each year, with the pressure

decay test included in the $550. Therefore, over a five-year period, gas station owners and operators would pay approximately

$200 more each year for the additional testing. There are approximately 7,400 facilities with Stage II vapor recovery equipment installed that will be subject to the proposed testing requirements. The total cost for the additional testing requirements for

all of these facilities is estimated to be $1,480,000.

The proposed amendments include a compliance schedule for

gasoline dispensing facilities to upgrade their Stage II vapor recovery systems to be ORVR compatible. Most gasoline dispensing facilities in the ozone nonattainment counties will also need

to upgrade their vapor recovery systems to be compatible with

the ORVR systems on many newer vehicles in order to satisfy

the SIP requirements to maintain vapor recovery rates at 95%

efficiency. The EPA required a phase-in for new vehicles to have

ORVR systems to begin in 1998. Four years later, a larger percentage of the total number of vehicles in the ozone nonattainment area have ORVR systems. However, the vapor recovery

systems used by most gas stations in the nonattainment areas

are not compatible with the ORVR systems on newer vehicles,

resulting in the failure of both the ORVR and the dispenser vapor recovery systems to maintain required vapor recovery rates.

Data provided by EPA indicates that ORVR may be more efficient

than Stage II vapor recovery; however, when an ORVR vehicle

refuels at a facility that uses a vacuum assist Stage II system,

there is a potential to produce significant fugitive emissions.

Approximately 30% of the Stage II vapor recovery systems

at gasoline dispensing facilities in the nonattainment counties

are already ORVR compatible. Some stations will have to

only make minor upgrades to become ORVR compatible and

depending on the availability of retrofit kits provided by the manufacturers, some systems may have to be completely removed

and replaced. The full replacement of Stage II vapor recovery

dispenser, hose, and nozzle systems is estimated to be $1,100

per dispenser. Assuming that 70% of the 7,400 facilities in the

ozone nonattainment areas are not ORVR compatible, and

each facility has an average of six dispensers, at $1,100 per

dispenser, total costs for those facilities requiring total upgrades

are estimated to be $34,188,000.

For the average gas station owner or operator with six dispensers, costs to become ORVR compatible would be an

estimated $6,600 plus the additional testing costs of $200 per

year. Businesses that own multiple facilities will have higher

costs depending upon the number of facilities owned. The commission assumes that these costs will passed on to consumers

in the form of higher gasoline costs.

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT

There are adverse fiscal implications anticipated as a result of

the implementation and enforcement of the proposed amendments for small and micro-businesses that own or operate gas

stations and gasoline dispensing facilities in the 16-county ozone

nonattainment areas in the state.

The agency estimates that of the 7,400 facilities in the 16-county

ozone nonattainment areas, there are 4,221 owners of gas stations that own ten facilities or less. It is not known how many

of these would be small or micro-businesses, but those that are

will pay $200 more per year in testing costs, and for those that

need to upgrade their systems to become ORVR compatible will

incur an expense of an additional $1,100 per dispenser. Assuming all 4,221 owners are small or micro- businesses, they would

pay an estimated total of $844,200 per year for additional testing costs and assuming there were an average of six dispensers

that needed to be upgraded, an additional $27,858,600 to become ORVR compatible.

The following is an analysis of the cost per employee for small or

micro-businesses affected by the proposed amendments. Small

and micro-businesses are defined as having fewer than 100 or

20 employees respectively. Owners of gas stations that own ten

facilities or less with an average of six dispensers at each facility, with 100 or fewer employees would incur additional costs of

$200 per year per facility for the testing and $6,600 per facility for

the ORVR upgrade. Total costs for these facilities is estimated

at $68,000 or $680 per employee. A micro-business with five

27 TexReg 6200 July 12, 2002 Texas Register
gas stations with an average of six dispensers per facility with

20 or less employees would incur estimated additional costs of

$34,000 or $1,700 per employee. The projected costs for affected facilities is the same for small businesses as for larger

businesses and the portion of costs attributed to the ORVR upgrade are assumed to be one-time costs.

LOCAL EMPLOYMENT IMPACT STATEMENT

The commission has review this proposed rulemaking and determined that a local employment impact statement is not required

because the proposed amendments do not adversely affect a

local economy in a material way for the first five years that the

proposed amendments are in effect.

DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the proposed rulemaking action in

light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the proposed

amendments meet the definition of a "major environmental rule"

as defined in that statute. A "major environmental rule" is a

rule which is specifically intented 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 proposed rulemaking action is to

protect the environment and reduce risks to human health from

environmental exposure to ozone by keeping gasoline vapor

recovery rates at the 95% prescribed level of efficiency. The

proposed amendments may have an adverse material impact

on a sector of the economy or a sector of the state. Gas station

owners and operators in the four ozone nonattainment areas

(16 counties) in the state will be required to pay $200 more per

year in testing costs, and those that need to upgrade their gas

dispensing systems to become ORVR compatible will incur an

expense of an additional $1,100 per dispenser.

Although the proposed amendments meet the definition of a

"major environmental rule" as defined in the 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 proposed rulemaking is not subject to the regulatory

analysis provisions of §2001.0225(b), because the proposed

amendments do not meet any of the four applicability requirements. Specifically, the proposed 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. The commission invites public comment

on the draft regulatory impact analysis determination.

TAKINGS IMPACT ASSESSMENT

The commission evaluated this 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 proposed rulemaking action amends the Stage

II gasoline vapor recovery rules and SIP narrative required under 42 USC, §7511a(b)(3), (c), and (d). The specific purpose

of this rulemaking action is to continue to satisfy the provisions

of 42 USC and to maintain a vapor recovery rate of 95%. The

proposed amendments would substantially advance this stated

purpose by updating control requirements of vapor recovery systems at gasoline dispensing facilities, requiring more frequent

testing of these systems, and requiring these facilities to upgrade their Stage II vapor recovery systems to be compatible

with newer, ORVR-equipped vehicles. Facilities that do not upgrade their incompatible Stage II vapor recovery systems may

prove to be a new source of emissions, thus weakening the SIP

integrity.

Nevertheless, the commission further evaluated this proposed

rulemaking action and performed an analysis of whether this action would constitute a takings under Chapter 2007. The specific

purpose of these proposed amendments is to continue to satisfy

federal requirements for vapor recovery from gasoline dispensing facilities in nonattainment areas of the state. The proposed

amendments would substantially advance this stated purpose by

requiring more frequent testing and upgrading of vapor recovery

systems at these gasoline stations. Promulgation and enforcement of these proposed amendments would be neither a statutory or constitutional taking of private real property. Specifically,

the proposed 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 proposed regulations. In other

words, these amendments are proposed 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. Some gas

station owners and operators may be required to install or modify Stage II vapor control equipment that will make the gas dispensing systems ORVR compatible. However, as described in

the FISCAL NOTE section of this preamble, the existing Stage

II rules follow the CARB certification process for vapor recovery

equipment. CARB is implementing an enhanced program that

will require installation of more costly equipment than the alternative proposed in these amendments to Chapter 115. In addition, the alternative proposed in these amendments will continue

to provide benefits to society by maintaining vapor recovery rates

at 95% efficiency. Therefore, these proposed 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

PROPOSED RULES July 12, 2002 27 TexReg 6201
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 proposed 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 (CFR), to protect and enhance air quality in the coastal areas (31 TAC §501.14(q)). This

rulemaking action complies with 40 CFR 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 CPM

goals and policies. The commission solicits comments on the

consistency of the proposed rules with the CMP during the public comment period.

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 HEARING

A public hearing on this proposal will be held in Austin, Texas, on

August 8, 2002, at 2:00 p.m., at the Texas Natural Resource Conservation Commission, 12100 Park 35 Circle, Building F, Room

2210. The hearing will be structured for the receipt of oral or written comments by interested persons. Individuals may present

oral statements when called upon in order of registration. There

will be no open discussion during the hearing; however, a commission staff member will be available to discuss the proposal

30 minutes prior to the hearing and will answer questions before

and after the hearing.

Persons with disabilities who have special communication or

other accommodation needs who are planning to attend the

hearing should contact the Office of Environmental Policy,

Analysis, and Assessment at (512) 239-4900. Requests should

be made as far in advance as possible.

SUBMITTAL OF COMMENTS

Comments may be submitted to Ms. Lola Brown, MC 205, Office of Environmental Policy, Analysis, and Assessment, Texas

Natural Resource Conservation Commission, P.O. Box 13087,

Austin, Texas 78711-3087, or faxed to (512) 239-4808. All comments should reference Rule Log Number 2002-012-115-AI.

Comments must be received by 5:00 p.m., August 12, 2002.

For further information, please contact Ashley Forbes of the

Registration, Review, and Reporting Division at (512) 239-0493

or Alan Henderson of the Policy and Regulations Division at

(512) 239-1510.

DIVISION 2. FILLING OF GASOLINE

STORAGE VESSELS (STAGE I) FOR MOTOR

VEHICLE FUEL DISPENSING FACILITIES

30 TAC §115.227

STATUTORY AUTHORITY

The amendment is proposed under Texas Water Code (TWC),

§5.103, concerning Rules, and §5.105, concerning General

Policy, which authorize the commission to adopt rules necessary to carry out its powers and duties under the TWC; and

under THSC, §382.017, concerning Rules, which authorizes

the commission to adopt rules consistent with the policy and

purposes of the Texas Clean Air Act (TCAA). The amendment

is also proposed under THSC, §382.002, concerning Policy and

Purpose, 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,

concerning General Powers and Duties, which authorizes the

commission to control the quality of the state’s air; §382.012,

concerning State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan

for the control of the state’s air; and §382.039, concerning

Attainment Program, 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 proposed amendment implements THSC, §§382.002,

382.011, 382.012, and 382.039.

§115.227. Exemptions.

The following exemptions apply:

[(1) In the Beaumont/Port Arthur, Dallas/Fort Worth, El

Paso, and Houston/Galveston areas, stationary gasoline storage containers with a nominal capacity less than or equal to 1,000 gallons, at

motor vehicle fuel dispensing facilities for which construction began

prior to November 15, 1992, are exempt from the requirements of this

division (relating to Filling of Gasoline Storage Vessels (Stage I) for

Motor Vehicle Fuel Dispensing Facilities), except for:]

[(A) §115.222(7) of this title (relating to Control Requirements);]

[(B) §115.222(3) of this title as it applies to liquid gasoline leaks; and]

[(C) §115.224(1) of this title (relating to Inspection Requirements) as it applies to liquid gasoline leaks.]

(1) [(2)] In the Beaumont/Port Arthur, Dallas/Fort Worth,

El Paso, and Houston/Galveston areas, transfers to stationary storage

tanks located at a motor vehicle fuel dispensing facility which has

dispensed no more than 10,000 gallons of gasoline in any calendar

month after January 1, 1991, and for which construction began prior

to November 15, 1992, are exempt from the requirements of this division (relating to Filling of Gasoline Storage Vessels (Stage I) for Motor

Vehicle Fuel Dispensing Facilities), except for:

(A) §115.222(7) of this title (relating to Control Requirements);

(B) §115.222(3) of this title as it applies to liquid gasoline leaks;

(C) §115.224(1) of this title (relating to Inspection Requirements) as it applies to liquid gasoline leaks; and

(D) §115.226(2)(B) of this title (relating to Recordkeeping Requirements).

(2) [(3)] In the covered attainment counties, as defined in

§115.10 of this title (relating to Definitions), stationary gasoline storage

containers with a nominal capacity less than or equal to 1,000 gallons

at motor vehicle fuel dispensing facilities are exempt from the requirements of this division [(relating to Filling of Gasoline Storage Vessels

(Stage I) for Motor Vehicle Fuel Dispensing Facilities)], except for:

27 TexReg 6202 July 12, 2002 Texas Register
(A) §115.222(7) of this title [(relating to Control Requirements)];

(B) §115.222(3) of this title as it applies to liquid gasoline leaks; and

(C) §115.224(1) of this title [(relating to Inspection Requirements)] as it applies to liquid gasoline leaks.

(3) [(4)] In the covered attainment counties, transfers to

stationary storage tanks located at a motor vehicle fuel dispensing facility which has dispensed less than 125,000 gallons of gasoline in any

calendar month after January 1, 1999 are exempt from the requirements

of this division [(relating to Filling of Gasoline Storage Vessels (Stage

I) for Motor Vehicle Fuel Dispensing Facilities)], except for:

(A) §115.222(7) of this title;

(B) §115.222(3) of this title as it applies to liquid gasoline leaks;

(C) §115.224(1) of this title as it applies to liquid gasoline leaks; and

(D) §115.226(2)(C) of this title [(relating to Recordkeeping Requirements)].

(4) [(5)] Transfers to the following stationary receiving

containers are exempt from the requirements of this division [(relating to Filling of Gasoline Storage Vessels (Stage I) for Motor Vehicle

Fuel Dispensing Facilities)]:

(A) containers used exclusively for the fueling of implements of agriculture; and

(B) storage tanks equipped with external floating roofs,

internal floating roofs, or their equivalent.

This agency hereby certifies that the proposal has been reviewed

by legal counsel and found to be within the agency’s legal authority to adopt.

Filed with the Office of the Secretary of State on June 28, 2002.

TRD-200204082

Stephanie Bergeron

Director, Environmental Law Division

Texas Natural Resource Conservation Commission

Earliest possible date of adoption: August 11, 2002

For further information, please call: (512) 239-0348

♦♦♦

DIVISION 4. CONTROL OF VEHICLE

REFUELING EMISSIONS (STAGE II) AT

MOTOR VEHICLE FUEL DISPENSING

FACILITIES

30 TAC §§115.240 - 115.249

STATUTORY AUTHORITY

The amendments are proposed under TWC, §5.103, concerning Rules, and §5.105, concerning General Policy, which

authorize the commission to adopt rules necessary to carry

out its powers and duties under the TWC; and under THSC,

§382.017, concerning Rules, which authorizes the commission

to adopt rules consistent with the policy and purposes of the

TCAA. The amendments are also proposed under THSC,

§382.002, concerning Policy and Purpose, 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, concerning General

Powers and Duties, which authorizes the commission to control

the quality of the state’s air; §382.012, concerning State Air

Control Plan, which authorizes the commission to prepare and

develop a general, comprehensive plan for the control of the

state’s air; and §382.039, concerning Attainment Program,

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 proposed amendments implement TCAA, §§382.002,

382.011, 382.012, and 382.039.

§115.240. Stage II Vapor Recovery Definitions and List of California

Air Resources Board Certified Stage II Equipment.

(a) The following words and terms, when used in this division,

shall have the following meanings, unless the context clearly indicates

otherwise. Additional definitions for terms used in this division are

found in §§115.10, 101.1, and 3.2 [§115.10 of this title (relating to

Definitions), §101.1 of this title (relating to Definitions), and §3.2] of

this title (relating to Definitions).

[(1) Independent small business marketer of gasoline--A

person engaged in the marketing of gasoline who owns the dispensing

equipment at a motor vehicle fuel dispensing facility and receives at

least 50% of his annual income from the marketing of gasoline. A person is not an independent small business marketer of gasoline if such

person:]

[(A) is a refiner; or]

[(B) controls (i.e., owns more than 50% of a business

or corporation’s stock), is controlled by, or is under common control

with, a refiner; or]

[(C) is otherwise directly or indirectly affiliated with a

refiner or with a person who controls, is controlled by, or is under common control with a refiner (unless the sole affiliation is by means of a

supply contract or an agreement or contract to use a trademark, trade

name, service mark, or other identifying symbol or name owned by

such refiner or any such person).]

(1) Onboard refueling vapor recovery--A system on motor

vehicles designed to recover hydrocarbon vapors that escape during

refueling.

(2) Onboard refueling vapor recovery (ORVR) compatible--A vacuum assist Stage II vapor recovery system designed to

prevent the ingestion of ambient air during the fueling of motor

vehicles equipped with ORVR.

(3) [(2)] Owner or operator of a motor vehicle fuel dispensing facility--Any person who owns, leases, operates, or controls

the motor vehicle fuel dispensing facility.

(b) The table in the following figure is a list of the Stage II

vapor recovery systems certified by a California Air Resources Board

(CARB) Executive Order in effect as of January 1, 2002.

Figure: 30 TAC §115.240(b)

§115.241. Emission Specifications.

No person in the counties listed in §115.249 of this title (relating

to Counties and Compliance Schedules) [Beaumont/Port Arthur,

Dallas/Fort Worth, El Paso, and Houston/Galveston areas as defined

in §115.10 of this title (relating to Definitions)] shall transfer or allow

the transfer of gasoline from any stationary storage container into a

PROPOSED RULES July 12, 2002 27 TexReg 6203
motor vehicle fuel tank, unless an approved Stage II vapor recovery

system has been installed which is certified to reduce the emissions of

volatile organic compound to the atmosphere by at least 95%.

§115.242. Control Requirements.

For all persons in the counties listed in §115.249 of this title (relating

to Counties and Compliance Dates) and [Beaumont/Port Arthur, Dallas/Fort Worth, El Paso, and Houston/Galveston areas] affected by this

division [undesignated head] (relating to Control of Vehicle Refueling Emissions (Stage II) at Motor Vehicle Fuel Dispensing Facilities),

a vapor recovery system will be assumed to comply with the specified

emission limitation of §115.241 of this title (relating to Emission Specifications) if the following conditions are met.

(1) The facility is equipped with a Stage II vapor recovery

system [that has been] certified by a California Air Resources Board

(CARB) Executive Order [concerning Stage II vapor recovery systems]

in effect as of January 1, 2002 (as specified in §115.240(b) of this title

(relating to Stage II Vapor Recovery Definitions and List of California Air Resources Board Certified Stage II Equipment)); or certified

by a CARB Executive Order in effect after January 1, 2002 [August

1993], except that the executive director reserves the right to continue

to recognize any CARB Executive Orders decertified after January 1,

2002; or certified by an alternative procedure which meets the requirements specified in §115.243 of this title (relating to Alternate Control

Requirements). In addition:

(A) Stage II vapor recovery balance systems which include vapor check valves in a location other than the nozzle shall not

be installed; [and]

(B) Stage II vapor recovery systems which include

dual-hang (non-coaxial) hoses shall not be installed; and [.]

(C) all vacuum assist Stage II vapor recovery systems

must be onboard refueling vapor recovery (ORVR) compatible, as

defined in §115.240 of this title in accordance with the schedules in

§115.249 of this title.

(2) All underground piping must be installed by a person

holding a valid License A as defined in §§334.401, 334.407, 334.424

of this title (relating to License and Registration Required; Other Requirements for an Underground Storage Tank Container; and Other Requirements for an On- Site Supervisor) [§§334.401 - 334.428 of this title (relating to Underground Storage Tank Contractor Registration and

Installer Licensing)]. Piping specifications shall be in compliance with

the applicable CARB Executive Order(s) for the Stage II vapor recovery system. For any facility newly constructed after November 15,

1993, or at any facility undergoing a major modification to the Stage

II vapor recovery system after November 15, 1993, the following requirements shall apply where piping specifications are not provided in

the applicable CARB Executive Order(s).

(A) All underground piping shall be constructed of rigid

material and conform to the applicable portions of the technical standards for new piping defined by §334.45(c) and (e) [§334.45(c)(1)(A) -

(C) and (3)] of this title (relating to Technical Standards for New Underground Storage Tank [UST] Systems) [and §334.45(e)(1) of this title].

(B) Noncorrodible [Noncorrosive] piping or cathodically protected metallic piping shall be used. In the event metallic

piping is used, the applicable portions of the general requirements for

corrosion protection defined by §334.49(a)(1) - (5) and (c)(1) - (4) of

this title (relating to Corrosion Protection) shall apply.

(C) Minimum slope on vapor piping shall be one eighth

of an inch per foot from the dispenser to the storage tank. Piping installed after January 1, 2002 shall not include liquid collection points

(condensate traps) unless the associated underground storage tanks:

(i) were installed prior to November 15, 1992; and

(ii) are not at sufficient depth to allow for minimum

slope requirements.

(D) - (E) (No change.)

(F) If a fire protection agency with jurisdiction requires

a vapor shear valve on the vapor return line at the base of a dispenser, the

shear valve shall be CARB-certified and/or Underwriters Laboratories

[UL] listed for use in vapor recovery systems.

(3) The owner or operator shall maintain the Stage II vapor

recovery system in proper operating condition, as specified by the manufacturer and/or any applicable CARB Executive Order(s), and free of

defects that would impair the effectiveness of the system, including,

but not limited to:

(A) - (I) (No change.)

(J) pressure/vacuum relief valves, vapor check valves,

or Stage I dry breaks that are inoperative or defective; [and]

(K) a system monitor or printer that is malfunctioning

or out of paper;

(L) a nozzle, hose, break-away, or any other component

that is not approved for use with the certified vapor recovery system in

use; and

(M) [(K)] any equipment defect that is identified in the

[a CARB] certification of an approved system as substantially impairing the effectiveness of the system in reducing refueling vapor emissions.

(4) - (5) (No change.)

(6) Upon identification of any of the defects described in

paragraphs (3) and (4) of this section, any inspector with jurisdiction

shall tag the impaired equipment out-of-order. The "Out-of-Order" tag

shall state "use of this device is prohibited under state law, and unauthorized removal of this tag or use of this equipment will constitute a

violation of the law punishable by a maximum civil penalty of up to

$25,000 per day or a maximum criminal penalty of $50,000 and/or up

to 180 days in jail." The impaired equipment shall remain out of service

until such time as the equipment has been properly repaired, replaced,

or adjusted, as necessary. Once repairs are completed, the "Out-of-Order" tag may be removed, and the equipment shall be returned to service

by the owner or operator or facility representative upon notification to

the agency that originally tagged the equipment out-of-service in the

following manner: verbal notification prior to placing the equipment

back in service followed by written notification received by the agency

within ten [10] days of placing the equipment back in service. For the

purposes of this paragraph, "facility representative" has the meaning

ascribed to it in §115.248(1) of this title (relating to Training Requirements).

(7) - (8) (No change.)

(9) The owner or operator of a motor vehicle fuel dispensing facility shall post operating instructions conspicuously on the front

of each gasoline dispensing pump equipped with a Stage II vapor recovery system. These instructions shall, at a minimum, include:

(A) a clear description of how to correctly dispense

gasoline using the system; and

(B) a warning against attempting to continue to refuel

after initial automatic shutoff of the system (an indication that the vehicle fuel tank is full). [; and]

27 TexReg 6204 July 12, 2002 Texas Register
[(C) the telephone number of the Texas Natural Resource Conservation Commission (TNRCC) Stage II Vapor Recovery

Hotline (1-800-533-3AIR) to be used for questions, comments, or the

reporting of any problems experienced with the system.]

(10) Any motor vehicle fuel dispensing facility that

becomes subject to the provisions of this division [undesignated

head] by exceeding the throughput limits of §115.247 [§§115.247,

115.249(2), or 115.249(3)] of this title (relating to Exemptions [, and

Counties and Compliance Schedules]) shall have 120 days to come

into compliance and will remain subject to the provisions of this

division [undesignated head] even if its gasoline throughput later falls

below throughput limits, except that:

(A) (No change.)

(B) at a facility exempted under §115.247(2) of this title

[or having an extended compliance schedule under §115.249(3) of this

title,] for which an exceedance occurred for any consecutive 30-day period due to an emergency condition or natural disaster after November

15, 1992, the owner or operator may petition the executive director to

permit the continuance of the facility’s exempt status or extended compliance schedule status. If exempt [or extended compliance schedule]

status is continued by the executive director, the requirement of annual

verification of the status as stated in §115.247(2) of this title must be

fulfilled.

(11) Any facility having installed Stage II vapor recovery

system(s) or component(s) [components(s)] previously certified by

CARB via an Executive Order, for which certification was [has

been] revoked by CARB, prior to January 1, 2002 [as of August

1993], must install and have operational an [a different] approved

system(s) or component(s) as referenced in paragraph (1) of this

section [§115.242(1) of this title (relating to Emission Specifications)]

as soon as practicable, but no later than September 1, 2006 [three years

from the date that CARB revoked the certification].

(12) After November 15, 1993, the owner or operator shall

provide written notification of any Stage II vapor recovery system installation to the appropriate [TNRCC] regional office and any local air

pollution program at least 30 days prior to start of construction. The

information in the notification shall include, but is not limited to:

(A) facility name, location (physical and mailing address); name, address, and phone number of owner(s) and operator(s);

name and phone number of owner’s representative; name, address, and

phone number of contractor(s); and the [TNRCC] Petroleum Storage

Tank [Division] Facility ID number and Owner ID number (if known);

(B) - (C) (No change.)

§115.243. Alternate Control Requirements.

Alternate [For all persons in the Beaumont/Port Arthur, Dallas/Fort

Worth, El Paso, and Houston/Galveston areas affected by this undesignated head (relating to Control of Vehicle Refueling Emissions (Stage

II) at Motor Vehicle Fuel Dispensing Facilities), alternate] methods of

complying with §115.242(1) of this title (relating to Control Requirements) may be approved by the executive director if:

(1) emission reductions are demonstrated to be [substantially] equivalent or greater than those afforded by the requirements in

§115.242(1) of this title; and

(2) the Stage II vapor recovery system is capable of meeting the applicable performance requirements prescribed in this division, as verified by third-party evaluation conducted by a qualified independent testing organization using a code or standard of practice,

acceptable to the executive director, which has been developed by a

nationally recognized agency, association, or independent testing laboratory [certified by the California Air Resources Board (CARB)].

§115.244. Inspection Requirements.

The[For the Beaumont/Port Arthur, Dallas/Fort Worth, El Paso, and

Houston/Galveston areas, the] owner or operator of any motor vehicle

fuel dispensing facility subject to the control requirements of this division [undesignated head] (relating to Control of Vehicle Refueling

Emissions (Stage II) at Motor Vehicle Fuel Dispensing Facilities) shall

conduct daily inspections of the Stage II vapor recovery system for the

defects specified in §115.242(3) and (4) of this title (relating to Control

Requirements) as follows.

(1) For all systems, the daily inspections shall include the

applicable portions of §115.242(3)(A)-(F), (H), (I) [(H)-(I)], and (K)

and (4) of this title.

(2) For assist systems that use [utilize] a processor, indicating mechanisms designed by the Stage II vapor recovery equipment

manufacturer to verify proper operation shall be inspected daily. Examples of these indicating mechanisms include flame detection sensors,

remote (from the processor) visual or audible displays indicating system operation, or other means as described in the applicable Executive

Order for the system.

(3) - (4) (No change.)

§115.245. Testing Requirements.

For all affected persons [in the Beaumont/Port Arthur, Dallas/Fort

Worth, El Paso, and Houston/Galveston areas], compliance with

§115.241 and §115.242 of this title (relating to Emission Specifications and Control Requirements) shall be determined at each facility

within 30 days of installation of the Stage II equipment by testing as

follows.

(1) Stage II vapor recovery systems shall successfully meet

the performance criteria proper to the system by successfully completing the following testing requirements using [utilizing] the test procedures as found in the State of Texas Vapor Recovery Test Procedures

Handbook ((handbook)(March 2002) [Texas Natural Resource Conservation Commission Stage II Vapor Recovery Test Procedure Handbook

(August 1993)].

(A) (No change.)

(B) For bootless nozzle assist systems, the volume-toliquid ratio (V/L ratio) or air-to-liquid ratio (A/L ratio) shall be within

acceptable limits.

(C) Each system shall meet minimum performance criteria specific to the individual system as defined in the California Air

Resources Board Executive Order. The criteria and test methods contained in the handbook [Texas Natural Resource Conservation Commission (TNRCC) Stage II Vapor Recovery Test Procedure Handbook

(August 1993)] specified in paragraph (1) [subparagraph (A)] of this

section [paragraph] shall take precedence for applicable tests where

performance criteria exist in both the Executive Order and the handbook [Stage II Vapor Recovery Test Procedure Handbook]; otherwise,

the Executive Order specific criteria shall take precedence.

(D) The owner or operator, or his or her representative,

shall provide written notification to the appropriate [TNRCC] regional

office and any local air pollution program with jurisdiction of the testing date and who will conduct the test. The notification must be received by the appropriate regional office and any local air pollution

program with jurisdiction [agency] at least ten [10] working days in

advance of the test, and the notification must contain the information

and be in the format as found in the handbook [TNRCC Stage II Vapor Recovery Test Procedure Handbook (August 1993)]. Notification

PROPOSED RULES July 12, 2002 27 TexReg 6205
may take the form of a facsimile or telecopier transmission, as long as

the facsimile is received by the appropriate regional office [TNRCC]

and any local air pollution program with jurisdiction at least ten [10]

working days prior to the test and it is followed up within two weeks

of the transmission with a written notification. The owner or operator, or his or her representative, shall give at least 24-hour notification

to the appropriate [TNRCC] regional office and any local air pollution

program with jurisdiction if a scheduled test is cancelled. In the event

that the test cancellation is not anticipated prior to 24 hours before the

scheduled test, the owner or operator, or his or her representative, shall

notify the appropriate [TNRCC] regional office and any local air pollution program with jurisdiction as soon in advance of the scheduled

test as is practicable.

[(2) Pressure decay testing shall be conducted annually and

in accordance with the test procedures referenced in paragraph (1) of

this section.]

(2) [(3)] Verification of proper operation of the Stage

II equipment shall be performed in accordance with the test procedures referenced in paragraph (1) of this section at least every

twelve months [five years] or upon major system replacement or

modification, whichever occurs first. The verification shall include

all functional tests that were required for the initial system test. The

owner or operator, or his or her representative, shall provide written

notification to the appropriate [TNRCC] regional office and any local

air pollution program with jurisdiction of the testing date and who will

conduct the test. The notification must be received by the appropriate

regional office and any local air pollution program with jurisdiction

[agency] at least ten [10] working days in advance of the test, and

the notification must contain the information and be in the format

as found in the handbook [TNRCC Stage II Vapor Recovery Test

Procedure Handbook (August 1993)]. Notification may take the form

of a facsimile or telecopier transmission, as long as the facsimile is

received by the appropriate regional office [TNRCC] and any local

air pollution program with jurisdiction at least ten [10] working

days prior to the test and it is followed up within two weeks of the

transmission with a written notification. The owner or operator, or

his or her representative, shall give at least 24-hour notification to

the appropriate [TNRCC] regional office and any local air pollution

program with jurisdiction if a scheduled test is cancelled. In the event

that the test cancellation is not anticipated prior to 24 hours before

the scheduled test, the owner or operator, or his or her representative,

shall notify the appropriate [TNRCC] regional office and any local

air pollution program with jurisdiction as soon in advance of the

scheduled test as is practicable. For the purposes of this paragraph, a

major system replacement or modification is defined as:

(A) the repair or replacement of any stationary storage

tank equipped with a Stage II vapor recovery system;

(B) the replacement of an existing CARB-certified

Stage II vapor recovery system with a system certified by CARB

under a different CARB Executive Order; [or]

(C) the repair or replacement of any part of a piping

system attached to a stationary storage tank equipped with a Stage II

vapor recovery system, excluding the repair or replacement of piping

which is accessible for such repair or replacement without excavation

or modification of the vapor recovery equipment ; or[.]

(D) the replacement of at least one fuel dispenser.

(3) [(4)] Minor modifications of these test methods may

be approved by the executive director.

(4) [(5)] All required tests shall be conducted either in the

presence of a Texas Commission on Environmental Quality [TNRCC]

or local program inspector with jurisdiction, or by a person who is registered with the executive director to conduct Stage II vapor recovery

tests [TNRCC by successfully completing a TNRCC proficiency test

relating to Stage II Vapor Recovery Test Procedures and Methods]. The

requirement to be registered shall begin on November 15, 1993, or 60

days after the executive director [TNRCC] has established the registry,

whichever occurs later. The executive director [TNRCC] may remove

an individual from the registry of testers for any of the following causes:

(A) the executive director [TNRCC] can demonstrate

that the individual has failed to conduct the test(s) properly in at least

three separate instances; or

(B) the individual falsifies test results for tests conducted to fulfill the requirements of this section.

(5) [(6)] The owner or operator, or his or her representative, shall submit the results of all tests required by this section to

the appropriate [TNRCC] regional office and any local air pollution

control program with jurisdiction within ten [10] working days of the

completion of the test(s) using the format specified in the handbook

[TNRCC Stage II Vapor Recovery Test Procedure Handbook (August

1993)]. For purposes of on-site recordkeeping, the Test Procedures

[Cover] Results Cover Sheet, properly completed with the summary of

the testing, is acceptable. The detailed results from each test conducted

along with a properly completed summary sheet, as provided for in the

handbook [Stage II Vapor Recovery Test Procedure Handbook], shall

be submitted to the appropriate [TNRCC] regional office and any local

air pollution control program with jurisdiction.

§115.246. Recordkeeping Requirements.

The [For the Beaumont/Port Arthur, Dallas/Fort Worth, El Paso, and

Houston/Galveston areas, the] owner or operator of any motor vehicle

fuel dispensing facility subject to the control requirements of this division [undesignated head] (relating to Control of Vehicle Refueling

Emissions (Stage II) at Motor Vehicle Fuel Dispensing Facilities) shall

maintain the following records:

(1) a copy of the California Air Resources Board (CARB)

Executive Order(s) or third party certification(s) for the Stage II vapor

recovery system and any related components installed at the facility;

(2) a copy of any owner or operator request for executive

director approval under [pursuant to] §115.243 of this title (relating to

Alternate Control Requirements) and any executive director approval

issued under [pursuant to] §115.243 of this title;

(3) - (6) (No change.)

(7) all records shall be maintained for at least two years,

except that the CARB Executive Order(s) or third party certification(s)

specified in paragraph (1) of this section, any applicable alternate

method of control requirement approval specified in paragraph (2)

of this section, and testing results specified in paragraph (5) of this

section shall be kept on-site indefinitely. These records shall be:

(A) kept on-site at facilities ordinarily manned during

business hours, and made immediately available for review upon

request by authorized representatives of the executive director, EPA

[Texas Natural Resource Conservation Commission (TNRCC), the

United States Environmental Protection Agency (EPA)], or any local

air pollution control program with jurisdiction; or

(B) [made available for review at the site by authorized

representatives of TNRCC, EPA, or any local air pollution control program with jurisdiction within 48 hours after being requested by the representative] for facilities [ordinarily] unmanned at the time of inspection, made available at the site within 48 hours after being requested by

27 TexReg 6206 July 12, 2002 Texas Register
authorized representatives of the executive director, EPA, or any local

air pollution control program with jurisdiction [during business hours].

§115.247. Exemptions.

The [For the Beaumont/Port Arthur, Dallas/Fort Worth, El Paso, and

Houston/Galveston areas, the] following are exempt from the requirements of this division [undesignated head] (relating to Control of Vehicle Refueling Emissions (Stage II) at Motor Vehicle Fuel Dispensing

Facilities):

(1) (No change.)

(2) any motor vehicle fuel dispensing facility for which

construction began prior to November 15, 1992, and which has a

monthly throughput of less than 10,000 gallons of gasoline. For the

purposes of this paragraph, the monthly throughput shall be based on

the maximum monthly gasoline throughput for any calendar month

after January 1, 1991. To maintain a facility’s exempt status under this

paragraph, the owner or operator must submit the facility’s monthly

gasoline throughput on an annual basis no later than January 31 of

each year to the executive director or his designated representative [appropriate Texas Natural Resource Conservation Commission regional

office and any local air pollution control program with jurisdiction].

§115.248. Training Requirements.

For all persons [in the Beaumont/Port Arthur, Dallas/Fort Worth, El

Paso, and Houston/Galveston areas] affected by this division [undesignated head] (relating to Control of Vehicle Refueling Emissions (Stage

II) at Motor Vehicle Fuel Dispensing Facilities), the following training

requirements apply.

(1) The owner or operator of a motor vehicle fuel dispensing facility shall ensure that at least one facility representative receive

training and instruction in the operation and maintenance of the Stage

II vapor recovery system by successfully completing a training course

approved by the executive director [Texas Natural Resource Conservation Commission (TNRCC)]. Successful [Such successful] completion

shall constitute certification of the facility representative. Each such

facility representative is then responsible for making every current and

future employee aware of the purposes and correct operating procedures of the system. The required training shall be completed as soon

as practicable prior to the initiation of operation of the facility’s Stage

II equipment. The following additional requirements apply to the designation of the facility representative.

(A) - (B) (No change.)

(2) (No change.)

(3) An [A TNRCC] approved training course will include,

but is not limited to, the following:

(A) - (E) (No change.)

(4) The executive director [TNRCC] may revoke approval

of a training course if the training provider:

(A) fails to administer the training course as proposed

in the application made to the executive director [TNRCC] to provide

such training; or

(B) fails to notify the executive director [TNRCC] of

upcoming courses in writing at least 21 days prior to the date of the

training as to the date, time, and place the training is to be held, or in

the event of a scheduled course cancellation, fails to notify the executive director [TNRCC] at least 24 hours in advance of the cancellation,

except:

(i) for all training providers, if conditions exist such

that 24-hour notice of course cancellation is impossible or impracticable, notice must be given to the executive director [TNRCC] as soon

as practicable, preferably prior to the time the course was originally

scheduled; and

(ii) for training courses provided at no charge to the

persons who attend, such as company-provided inhouse training, the

21-day advance notice shall not apply, and advance notice of upcoming

courses is only required when such notice is requested, in writing, by

the executive director [TNRCC].

§115.249. Counties and Compliance Schedules.

(a) The rules in this division (relating to Control of Vehicle Refueling Emissions (Stage II) at Motor Vehicle Fuel Dispensing Facilities) apply to affected persons in Brazoria, Chambers, Collin, Dallas,

Denton, El Paso, Fort Bend, Galveston, Harris, Hardin, Jefferson, Liberty, Montgomery, Orange, Tarrant, and Waller Counties.

(b) All affected persons [in Brazoria, Chambers, Collin, Dallas, Denton, El Paso, Fort Bend, Galveston, Harris, Hardin, Jefferson,

Liberty, Montgomery, Orange, Tarrant, and Waller Counties] shall continue to comply [be in compliance] with this division as required by

§115.930 of this title (relating to Compliance Dates). [undesignated

head (relating to Control of Vehicle Refueling Emissions (Stage II) at

Motor Vehicle Fuel Dispensing Facilities) according to the following

schedules:]

(c) All vacuum assist Stage II vapor recovery systems must be

onboard refueling vapor recovery (ORVR) compatible according to the

following schedules:

(1) all installations of vacuum assist Stage II vapor recovery systems installed on or after April 1, 2004, must be ORVR compatible; and

(2) all vacuum assist Stage II vapor recovery systems installed before April 1, 2004, must be upgraded to an ORVR compatible

system no later than April 1, 2007.

[(1) as soon as practicable, but no later than May 15, 1993,

or upon initial start-up, whichever is later, for facilities for which construction began after November 15, 1990;]

[(2) as soon as practicable, but no later than November

15, 1993, for facilities with a monthly throughput of at least 100,000

gallons of gasoline. For the purposes of this paragraph, the monthly

throughput shall be based on the maximum monthly gasoline throughput for any calendar month after January 1, 1991;]

[(3) as soon as practicable, but no later than November 15,

1994, for all other facilities, except that individual independent small

business marketers of gasoline (ISBMG), as defined in §115.10 of this

title (relating to Definitions), may petition the executive director for an

extension of the compliance deadline to December 22, 1998, or until

one or more of the facility’s gasoline storage tanks are replaced and/or

equipped with corrosion protection as required by the Petroleum Storage Tank (PST) Division of the Texas Natural Resource Conservation

Commission (TNRCC), whichever occurs first, provided that the petition is submitted no later than January 15, 1994, and approved by the

executive director. The availability of an extended compliance schedule for independent small business marketers of gasoline only applies

to individual facilitiesfor which the monthly gasoline throughput isless

than 50,000 gallons per month, based on the maximum monthly gasoline throughput for any calendar month after January 1, 1991. In order

for the station to maintain ISBMG compliance date extension status

under this paragraph, the facility shall not exceed the 50,000 gallons

per month gasoline throughput limit, and the owner or operator shall

submit the facility’s monthly gasoline throughput on an annual basis no

later than January 31 of each year to the appropriate TNRCC regional

office and any local air pollution control program with jurisdiction until such time as the Stage II vapor recovery system is installed; and]

PROPOSED RULES July 12, 2002 27 TexReg 6207
[(4) if more than one of the compliance schedules in paragraphs (1) - (3) of this section applies to a facility, the earliest compliance schedule shall take precedence.]

This agency hereby certifies that the proposal has been reviewed

by legal counsel and found to be within the agency’s legal authority to adopt.

Filed with the Office of the Secretary of State on June 28, 2002.

TRD-200204083

Stephanie Bergeron

Director, Environmental Law Division

Texas Natural Resource Conservation Commission

Earliest possible date of adoption: August 11, 2002

For further information, please call: (512) 239-0348

♦♦♦

SUBCHAPTER H. HIGHLY-REACTIVE

VOLATILE ORGANIC COMPOUNDS

DIVISION 2. FLARES

30 TAC §115.741

The Texas Natural Resource Conservation Commission (commission) proposes new §115.741, Emissions Specifications, and

corresponding revision to the state implementation plan (SIP).

This proposed new section in Chapter 115, new Subchapter H,

Division 2, and corresponding revision to the SIP will be submitted to the United States Environmental Protection Agency (EPA).

The commission also is withdrawing, concurrently in this issue,

the proposed new §115.741 which was published in the June 21,

2002, issue of the Texas Register (27 TexReg 5394).

The commission proposes this change to Chapter 115 and revision to the SIP as essential components of, and consistent

with, the SIP that Texas is required to develop under the Federal Clean Air Act (FCAA) Amendments of 1990 as codified in 42

United States Code (USC), §7410, to demonstrate attainment of

the national ambient air quality standard (NAAQS) for ozone. In

addition, 42 USC, §7502(a)(2), requires attainment as expeditiously as practicable, and 42 USC, §7511a(d), requires states

to submit ozone attainment demonstration SIPs for severe ozone

nonattainment areas such as Houston/Galveston (HGA).

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS

FOR THE PROPOSED RULE

The commission is withdrawing the proposed new §115.741,

Emission Specifications, concurrently in this issue, which was

published in the June 21, 2002, issue of the Texas Register (27

TexReg 5394). A computational error was discovered which inaccurately reflected an emission rate of 0.6 pounds per hour for

all highly-reactive volatile organic compounds (VOC) from each

flare at an account. In order to correct this inaccuracy, the commission is proposing to establish an emission rate of 7.4 pounds

per hour for all highly-reactive VOC from each flare at an account. Therefore, any references in other rules to §115.741 are

intended to reference the 7.4 pounds-per- hour limit. For additional background information on this proposal, please refer to

the Proposed Rules section of the June 21, 2002, issue of the

Texas Register.

As discussed in Chapter 7 of the HGA SIP, this revision is another

phase in the process of continued analysis and review of the

science. The data collected as a result of these revisions will

further assist the commission as it develops its full reassessment

of the attainment demonstration at the mid-course review.

By the adoption date, the commission intends to have better

data and greater confidence in the exact emissions reductions

requirements required to control highly-reactive VOC while maintaining the integrity of the SIP.

SECTION BY SECTION DISCUSSION

The proposed new §115.741 specifies that the total highly-reactive VOC emission rate for each flare at an account shall not

exceed 7.4 pounds per hour. If this emission rate is exceeded

and exemption is claimed under 30 TAC §101.222, concerning

Demonstrations, the owner or operator must use the records that

are required to be retained under 30 TAC §115.746, concerning

Recordkeeeping Requirements, in the calculation and justification of those excess emissions in order to demonstrate compliance with that section. Section 101.222 was proposed in the

April 26, 2002, issue of the Texas Register (27 TexReg 3475)

and, if adopted, will replace the current 30 TAC §101.11, concerning Demonstrations.

The highly-reactive VOC emission rate of 7.4 pounds per hour

represents the amount that each flare can emit into the HGA

airshed and still demonstrate compliance with the one-hour

ozone attainment standard. In such instances that this rate is

exceeded, the owner or operator must use actual monitoring

data to show that the exceedance was not preventable based

on the most current operating history. Use of actual site specific

monitoring data in determining compliance with §101.222, will

produce results that more accurately represent hourly activity

of the flare. The commission expects that industry will use

best management practices in order to ensure compliance with

the emission specification within this division. In addition, the

commission solicits comment on the concept of establishing

an emission rate cap for all highly-reactive VOC emitted from

all flares at an account or on the concept of establishing an

emission rate cap for all highly-reactive VOC emitted from all

flares, vents, and cooling tower heat exchange systems at an

account.

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT

John Davis, Analyst with Strategic Planning and Appropriations,

has determined that there will be no fiscal implications for any

other unit of state or local government due to administration or

enforcement of the proposed rule, because none of the sources

which would be required to comply with the proposed Chapter

115 requirement are owned or operated by units of state and

local government.

This proposed amendment to the commission’s VOC rules is intended to improve implementation of the existing Chapter 115

by adding requirements to achieve reductions in emissions of

highly- reactive VOCs in HGA.

PUBLIC BENEFITS AND COSTS

Mr. Davis determined that for each year of the first five years

the proposed rule is in effect, the public benefit anticipated

from enforcement of and compliance with the proposed rule

will be potentially increased environmental protection due to

reductions of public exposure to VOCs emitted from affected

stationary sources, and reduction of ground-level ozone in

ozone nonattainment areas.

27 TexReg 6208 July 12, 2002 Texas Register
Robert J. Huston, Chairman 

R. B. "Ralph" Marquez, Commissioner 

Kathleen Hartnett \Vhite, Commissioner 

Jeffrey A. Saitas, Executive Director 

TEXAS NATURAL RESOURCE CONSERVATION COMMISSION 

Protecting Texas by Reducing and Preventing Pollution 

NOTICE OF PUBLIC HEARING BY THE 

TEXAS NATURAL RESOURCE CONSERVATION COMMISSION 

ON PROPOSED REVISIONS TO 30 TAC CHAPTER 115 

AND TO THE STATE IMPLEMENTATION PLAN 

The Texas Natural Resource Conservation Commission (commission) will conduct a public hearing to 

receive testimony regarding revisions to 30 TAC Chapter 115, Control of Air Pollution from Volatile 

Organic Compounds, and to the state implementation plan (SIP) narrative, Stage II Vapor Recovery 

Program SIP Revision, under the requirements of the Texas Health and Safety Code, §382.017; Texas 

Government Code, Subchapter B, Chapter 2001; and 40 Code of Federal Regulations, §51.102, ofthe 

United States Environmental Protection Agency (EPA) regulations concerning SIPs. The amendments to 

Chapter 115 are proposed as a revision to the SIP. 

These proposed amendments to Chapter 115 would require more frequent testing of vapor recovery systems 

. at gasoline dispensing facilities in lieu of adopting the California Enhanced Vapor Recovery Program rules, 

while continuing to maintain the federal requirement for a 95% vapor recovery rate. The proposed 

amendments would also require that Stage II vapor recovery systems be compatible with onboard refueling 

vapor recovery equipment mandated by the federal government. 

A public hearing on this proposal will be held in Austin, Texas, on August 8, 2002, at 2:00p.m., at the 

Texas Natural Resource Conservation Commission, 12100 Park 35 Circle, Building F, Room 2210. The 

hearing is 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 occur during 

the hearing; however, agency staff will be available to discuss the proposal30 minutes prior to the hearing 

and will answer questions before and after the hearing. 

Comments may be submitted to Lola Brown, Office of Environmental Policy, Analysis, and Assessment, 

MC 205, P.O. Box 13087, Austin, Texas 78711-3087; or by fax at (512) 239-4808. All comments must 

be received by 5:00p.m. on August 12, 2002, and should reference Rule Log No. 2002-012-115-AI. For 

further information on the proposed revisions, please contact Ashley Forbes at (512) 239-0493 or Alan 

Henderson at (512) 239-1510. Copies of the proposed rules and SIP revisions can be obtained from the 

commission's website at: http://www.tnrcc.state.tx.usloprdlruleslpropadop.html. 

Persons with disabilities who have special communication or other accommodation needs who are planning 

to attend the hearing should contact the agency at (512) 239-4900. Requests should be made as far in 

advance as possible. 

Issued in Austin, Texas, on June 26, 2002. 

P.O. Box 13087 • Austin. Texas 78711-3087 • 512/239-1000 • Internet address: www.tnrcc.state.tx.us 
Texas Natural Resource Conservation Commission 

Chapter 115 - Control of Air Pollution from Volatile Organic Compounds 

Rule Log Number 2002-012-115-AI 

The Texas Natural Resource Conservation Commission (commission) proposes amendments to 

Page 1 

§§115.227 and 115.240- 115.249 concerning the control of gasoline vapors from storage vessels and 

dispensing facilities. The commission also proposes revisions to the state implementation plan (SIP) 

narrative, Stage II Vapor Recovery Program SIP Revision. The commission proposes to submit these 

amended rule sections and revised SIP narrative to the United States Environmental Protection Agency 

(EPA) as proposed revisions to the SIP. 

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES 

The commission adopted the Stage II rules and SIP narrative on October 16, 1992 (revised on 

November 10, 1993) 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 the vapor recovery equipment. The CARB 

is currently implementing an enhanced vapor recovery (EVR) program with a completion date of April 

2003, after which it will no longer certify non-EVR systems. In lieu of incorporating the CARB EVR 

program, the commission is proposing a requirement for more frequent testing of vapor recovery 

systems at gasoline dispensing facilities. Specifically, the commission proposes to change the five-year 

requirement for full system tests to a one-year requirement. By doing so, the commission believes that 

the increased testing frequency will continue to satisfy the federal requirement to maintain a vapor 

recovery rate of 95% . The commission proposes these amendments to Chapter 115, Control of Air 

Pollution from Volatile Organic Compounds (VOC). 
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SECTION BY SECTION DISCUSSION 

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Throughout this rulemaking the outdated term "undesignated head" is proposed to be replaced with the 

correct term "division" in response to revised Texas Register rules published in the February 13, 1998 

issue of the Texas Register (23 TexReg 1289). The name of the commission is proposed to be changed 

to the Texas Commission on Environmental Quality because the rules are anticipated to become 

effective after the date the name change is to occur, September 1 , 2002. The term "commission" is 

proposed to be changed to "executive director" in each location where the action being taken is directly 

associated with the executive director or his staff. In addition, various stylistic and editorial changes 

are proposed to comply with the current Texas Register rules and style manual. Justification for these 

changes will not be discussed any further in this preamble other than to point out where each change 

has been made. · 

Subchapter C, Division 2, Stage I Vapor Recovery 

The proposed amendments to §115.227, Exemptions, would remove language that could potentially 

provide a Stage I exemption for a facility that is required to have Stage II vapor recovery. All Stage II 

vapor recovery systems must include Stage I vapor recovery in order to operate properly. The 

proposed amendments also add section titles the first time each section is referenced in §115.227. 

Subchapter C, Division 4, Stage II Vapor Recovery 

The proposed amendments to §115.240, Stage II Vapor Recovery Definitions, include stylistic changes 

previously discussed in this preamble. The proposed amendments would also delete the definition 

independent small business marketer of gasoline because the term is no longer used in this division. 
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The proposed amendments would also provide additional definitions for industry-specific terminology 

presented in the rules, which include the definitions for onboard refueling vapor recovery and onboard 

refueling vapor recovery (ORVR) compatible. The proposed amendments add a table listing the Stage 

II vapor recovery systems certified by a CARB executive order and change the section title to Stage II 

Vapor Recovery Definitions and List of California Air Resources Board Certified Stage II Equipment. 

The proposed amendments to §115.241, Emissions Specifications, remove the reference to specific 

nonattainment areas as being subject to the controls of the division and place the reference in §115.249, 

Counties and Compliance Schedules, where it more appropriately belongs. 

The proposed administrative and stylistic amendments to §115.242, Control Requirements, would 

remove the reference to specific nonattainment areas as being subject to the controls of the division and 

place the reference in §115.249 where it more appropriately belongs, and would change "undesignated 

head" to "division." The proposed amendments to §115.242(2) would correct two section numbers and 

titles in reference citations to 30 TAC Chapter 334; delete two reference citations to §115.249 which 

no longer apply; spell out the acronym "UL" as "Underwriters Laboratories"; and delete one 

superfluous reference to the acronym TNRCC. 

The proposed technical amendments to §115.242 would clarify which CARE-certified Stage II vapor 

recovery systems would be authorized for use by the executive director. Also, the proposed 

amendments would allow the executive director to continue to recognize any Executive Orders which 

CARB decertifies in the future. Due to the federal mandate requiring motor vehicle manufacturers to 
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make vehicles equipped with ORVR, the incompatibility between ORVR and Stage II vapor recovery 

should be addressed as this incompatibility may prove to be a new source of emissions. In order to 

maintain SIP integrity and to prevent new emissions, the proposed amendments include a compliance 

schedule for gasoline dispensing facilities to upgrade their Stage II vapor recovery systems to be ORVR 

compatible. The proposed amendments would also eliminate the requirement to post the "TNRCC 

Stage II Vapor Recovery Hotline" on each gasoline dispensing pump equipped with a Stage II vapor 

recovery system. The majority of the calls received on this hotline should be directed to either the 

Texas Department of Agriculture Weights and Measures for issues involving price discrepancies at the 

pump or to the facility owner or operator for customer service inquiries. Finally, other control 

requirements have been updated to ensure that the vapor recovery systems operate at the prescribed · 

95% level of efficiency. 

The proposed amendments to §115.243, Alternate Control Requirements, would remove the reference 

to specific nonattainrnent areas as being subject to the controls of the division and place the reference in 

§115.249, where it more appropriately belongs. 

The proposed amendments to §115.244, Inspection Requirements, would remove the reference to 

specific nonattainment areas as being subject to the controls of the division and place the reference in 

§115.249, where it more appropriately belongs. The word "utilize" is proposed to be replaced with the 

word "use" in §115.244(2). 
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The proposed administrative and stylistic amendments to §115.245, Testing Requirements, would 

remove the reference to specific nonattainment areas as being subject to the controls of the division and 

place the reference in §115.249, where it more appropriately belongs. The proposed amendments 

would also delete several superfluous references to the acronym TNRCC, and change "TNRCC" to 

"executive director" in several locations because the executive director (or his staff) is responsible for 

program management. Finally, the name of the commission is proposed to be changed in one location. 

The proposed technical amendments to §115.245 also would provide a directive to use the most recent 

Stage II vapor recovery test procedures handbook, add language to allow air-to-liquid ratio (A/L ratio) 

testing for assist systems, and require annual compliance testing of Stage II equipment to ensure that the 

equipment is operating properly. Full system testing must be accomplished at least once in any 12-

month period. The term "12-month period" is used in the calendar sense and is not meant to imply a 

specific number of days. For example, if a system test was completed in a given month, such as 

October, 2003, then another inspection must be done at some time in the subsequent 12-month period 

from November 1, 2003 through the end of October, 2004. If a system test was done on October 5, 

2003, then the facility has until October 31, 2004 to complete the next system test. If the facility 

waited until October 31, 2003 to do the next system test, the following test would still be due no later 

than October 31, 2004. However, if the facility made an "early" system test on August 15,2004, 

regardless of the reason the test was conducted earlier than required, then the following system test 

would be due no later than August 31, 2005. Finally, the commission proposes to implement a registry 

of testers who have certified their knowledge of the State of Texas Vapor Recovery Test Procedures 

Handbook. 
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The proposed amendments to §115.246, Recordkeeping Requirements, would remove the reference to 

specific nonattainment areas as being subject to the controls of the division and place the reference in 

§115.249, where it more appropriately belongs. Other proposed amendments include changing the 

term "undesignated head" to "division" in accordance with Texas Register rules, changing the legalistic 

term "pursuant to" to "under" in two places to comply with the current style guidance, and changing 

references from the "TNRCC" to the "executive director" in two locations because the executive 

director (or his staff) is the more appropriate recipient of facility records. 

The proposed amendments to § 115.247, Exemptions, would remove the reference to specific 

nonattainment areas as being subject to the controls of the division and place the reference in §115.249, 

where it more appropriately belongs, and would delete one superfluous reference to the Texas Natural 

Resource Conservation Commission. 

The proposed amendments to §115.248, Training Requirements, would remove the reference to 

specific nonattainment areas as being subject to the controls of the division and place the reference in 

§115.249, where it more appropriately belongs; delete one superfluous reference to the TNRCC; and 

change "TNRCC" to "executive director" in several locations because the executive director (or his 

staff) is responsible for program management. 

The proposed amendments to §115.249, Counties and Compliance Schedules, would specify the 

counties in which these rules apply; delete the compliance dates which have passed and change the 
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language to "shall continue to comply with"; and add the compliance schedule for ORVR compatibility. 

The proposed amendments would also change the term undesignated head to division. 

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT 

Jeffrey Horvath, Analyst with Strategic Planning and Appropriations, has determined that for the first 

five-year period the proposed amendments are in effect, no significant fiscal implications are expected 

for the agency resulting from the implementation of the proposed amendments. However, costs are 

anticipated for units of state or local government, businesses, or individuals who own or operate 

gasoline stations or gasoline dispensing facilities in the 16 ozone nonattainment counties in the state. 

Although costs per facility are not anticipated to be significant, total overall costs for all facilities in the 

ozone nonattainrnent counties are anticipated to be significant. 

The proposed amendments would require more frequent testing of vapor recovery systems at gasoline 

dispensing facilities in ozone nonattainrnent counties. Vapor recovery systems capture gasoline vapors 

before the vapors escape into the atmosphere and cause the formation of ozone and smog. The 

proposed amendments also include a compliance schedule for gasoline dispensing facilities to upgrade 

their Stage II vapor recovery systems to be compatible with ORVR systems on many vehicles. The 

proposed amendments are expected to allow the state to continue to satisfy the federal requirement to 

maintain a vapor recovery rate of 95% in the 16 ozone nonattainrnent counties of Brazoria, Chambers, 

Collin, Dallas, Denton, El Paso, Fort Bend, Galveston, Hardin, Harris, Jefferson, Liberty, 

Montgomery, Orange, Tarrant, and Waller. The proposed amendments will also be submitted to the 

EPA as proposed revisions to the SIP. 
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The commission proposes these amendments in lieu of incorporating the new CARB enhanced vapor 

recovery program. Current rules follow the CARB certification procedures for vapor recovery 

equipment. The CARB is currently implementing an enhanced vapor recovery program which consists 

of six modules and would require gasoline dispensing facilities to install new vapor recovery systems 

including in-station diagnostic computer equipment to monitor emissions. This enhanced vapor 

recovery program has been estimated to cost between $30,000 and $60,000 per facility. 

Instead of implementing the CARB enhanced vapor recovery systems, the commission is proposing 

amendments which will require more frequent testing of vapor recovery systems at gasoline dispensing 

facilities in the 16 ozone nonattainment counties in the state. The commission believes that the increase 

in testing and the upgrade of vapor recovery systems to make them ORVR compatible will continue to 

satisfy federal SIP requirements for vapor recovery. 

Currently, gasoline stations in ozone nonattainment areas must perform full system tests every five 

years to ensure that vapor recovery systems are operating correctly. The proposed amendments would 

require full system tests every 12 months. There are seven components to the full suite of performance 

tests. The full suite of tests costs station owners and operators approximately $550 every five years. 

An annual pressure decay test is also required for those years when the full suite of tests is not 

conducted. This stand-alone test normally costs about $300. The proposed amendments would require 

testing every 12 months and cost station owners and operators $550 each year, with the pressure decay 

test included in the $550. Therefore, over a five-year period, gas station owners and operators would 

pay approximately $200 more each year for the additional testing. There are approximately 7,400 
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facilities with Stage II vapor recovery equipment installed that will be subject to the proposed testing 

requirements. The total cost for the additional testing requirements for all of these facilities is 

estimated to be $1,480,000. 

The proposed amendments include a compliance schedule for gasoline dispensing facilities in the ozone 

nonattainment counties to upgrade their vapor recovery systems to be compatible with the ORVR 

systems on many newer vehicles. The upgrade is necessary in order to continue to satisfy the SIP 

requirements to maintain vapor recovery rates at 95% efficiency. The EPA required a phase-in for 

new vehicles to have ORVR systems beginning in 1998. Data provided by EPA indicates that ORVR 

may be more efficient than Stage II vapor recovery, however, when an ORVR vehicle refuels at a 

facility that uses a vacuum assist Stage II system (the type of vapor recovery system used extensively in 

Texas), there is a potential to produce significant fugitive emissions. A growing percentage of the total 

number of vehicles in the ozone nonattainment areas now have ORVR systems. 

Approximately 30% of the Stage II vapor recovery systems at gasoline dispensing facilities in the 

nonattainment counties are already ORVR compatible. Some stations will have to only make minor 

upgrades to become ORVR compatible and depending on the availability of retrofit kits provided by the 

manufacturers, some systems may have to be completely removed and replaced. The full replacement 

of Stage II vapor recovery dispenser, hose, and nozzle systems is estimated to be $1,100 per dispenser. 

Assuming that 70% of the 7,400 facilities in the ozone nonattainment areas are not ORVR compatible, 

and each facility has an average of six dispensers, at $1,100 per dispenser, total costs for those facilities 

requiring total upgrades are estimated to be $34,188,000. 
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There will be additional testing costs for units of state or local government that own or operate gasoline 

dispensing facilities in the 16-county ozone nonattainment areas. Refueling facilities may be owned by 

the Texas Department of Transportation, or by cities or counties. It is not known how many of the 

estimated 7,400 facilities with vapor recovery equipment in the four ozone nonattainment areas are 

owned or operated by units of state or local government. Many of these facilities may be exempt from 

the vapor recovery requirements as they may have been constructed prior to November 15, 1992 and 

have a documented throughput of less than 10,000 gallons per month. Those that are not exempt will 

pay an additional $200 per year in testing costs. In addition, those facilities that must replace the Stage 

II vapor recovery dispenser, hose, and nozzle systems will pay an estimated $1,100 per dispenser. 

For the average gas station owner or operator with six dispensers, costs to become ORVR compatible 

would be an estimated $6,600 plus the additional testing costs of $200 per year. The upgrade costs 

would be one-time costs, but the testing costs would be recurring. 

PUBLIC BENEFITS AND COSTS 

Mr. Horvath has also determined that for each year of the first five years the proposed amendments are 

in effect, the public benefit anticipated from the enforcement of and compliance with the proposed 

amendments would include the maintenance of SIP requirements to keep vapor recovery rates at the 

95% prescribed levels of efficiency while implementing a less expensive methodology than the 

enhanced vapor recovery system under the CARB initiative. 
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There will be costs to comply with the proposed amendments which could be significant, for businesses 

and individuals who own or operate gasoline dispensing facilities in the 16-county ozone nonattainment 

areas. 

The proposed amendments will require more frequent testing of vapor recovery systems at gasoline 

dispensing facilities in the 16 ozone nonattainment counties in the state. Currently, gasoline stations in 

ozone nonattainment areas must perform full system tests every five years to ensure that vapor recovery 

systems are operating correctly. The proposed amendments would require full system tests every 12 

months. There are seven components to the full suite of performance tests. The full suite of tests costs 

station owners and operators approximately $550 every five years. An annual pressure decay test is 

also required for those years when the full suite of tests is not conducted. This stand-alone test 

normally costs about $300. The proposed amendments would require testing every 12 months and cost 

station owners and operators $550 each year, with the pressure decay test included in the $550. 

Therefore, over a five-year period, gas station owners and operators would pay approximately $200 

more each year for the additional testing. There are approximately 7,400 facilities with Stage II vapor 

recovery equipment installed that will be subject to the proposed testing requirements. The total cost 

for the additional testing requirements for all of these facilities is estimated to be $1,480,000. 

The proposed amendments include a compliance schedule for gasoline dispensing facilities to upgrade 

their Stage II vapor recovery systems to be ORVR compatible. Most gasoline dispensing facilities in 

the ozone nonattainment counties will also need to upgrade their vapor recovery systems to be 

compatible with the ORVR systems on many newer vehicles in order to satisfy the SIP requirements to 
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maintain vapor recovery rates at 95% efficiency. The EPA required a phase-in for new vehicles to 

have ORVR systems to begin in 1998. Four years later, a larger percentage of the total number of 

vehicles in the ozone nonattainment area have ORVR systems. However, the vapor recovery systems 

used by most gas stations in the nonattainment areas are not compatible with the ORVR systems on 

newer vehicles, resulting in the failure of both the ORVR and the dispenser vapor recovery systems to 

maintain required vapor recovery rates. Data provided by EPA indicates that ORVR may be more 

efficient than Stage II vapor recovery; however, when an ORVR vehicle refuels at a facility that uses a 

vacuum assist Stage II system, there is a potential to produce significant fugitive emissions. 

Approximately 30% of th.e Stage II vapor recovery systems at gasoline dispensing facilities in the 

nonattainment counties are already ORVR compatible. Some stations will have to only make minor 

upgrades to become ORVR compatible and depending on the availability of retrofit kits provided by the 

manufacturers, some systems may have to be completely removed and replaced. The full replacement 

of Stage II vapor recovery dispenser, hose, and nozzle systems is estimated to be $1,100 per dispenser. 

Assuming that 70% of the 7,400 facilities in the ozone nonattainment areas are not ORVR compatible, 

and each facility has an average of six dispensers, at $1,100 per dispenser, total costs for those facilities 

requiring total upgrades are estimated to be $34,188,000. 

For the average gas station owner or operator with six dispensers, costs to become ORVR compatible 

would be an estimated $6,600 plus the additional testing costs of $200 per year. Businesses that own 

multiple facilities will have higher costs depending upon the number of facilities owned. The 

commission assumes that these costs will passed on to consumers in the form of higher gasoline costs. 
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SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT 

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There are adverse fiscal implications anticipated as a result of i:he implementation and enforcement of 

the proposed amendments for small and micro-businesses that own or operate gas stations and gasoline 

dispensing facilities in the 16-county ozone nonattainment areas in the state. 

The agency estimates that of the 7,400 facilities in the 16-county ozone nonattainment areas, there are 

4,221 owners of gas stations that own ten facilities or less. It is not known how many of these would 

be small or micro-businesses, but those that are will pay $200 more per year in testing costs, and for 

those that need to upgrade their systems to become ORVR compatible will incur an expense of an 

additional $1,100 per dispenser. Assuming all4,221 owners are small or micro-businesses, they would 

pay an estimated total of $844,200 per year for additional testing costs and assuming there were an 

average of six dispensers that needed to be upgraded, an additional $27,858,600 to become ORVR 

compatible. 

The following is an analysis of the cost per employee for small or micro-businesses affected by the 

proposed amendments. Small and micro-businesses are defined as having fewer than 100 or 20 

employees respectively. Owners of gas stations that own ten facilities or less with an average of six 

dispensers at each facility, with 100 or fewer employees would incur additional costs of $200 per year 

per facility for the testing and $6,600 per facility for the ORVR upgrade. Total costs for these facilities 

is estimated at $68,000 or $680 per employee. A micro-business with five gas stations with an average 

of six dispensers per facility with 20 or less employees would incur estimated additional costs of 

$34,000 or $1,700 per employee. The projected costs for affected facilities is the same for small 
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businesses as for larger businesses and the portion of costs attributed to the ORVR upgrade are 

assumed to be one-time costs. 

LOCALEMPLOYMENTIMPACTSTATEMENT 

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The commission has review this proposed rulemaking and determined that a local employment impact 

statement is not required because the proposed amendments do not adversely affect a local economy in 

a material way for the first five years that the proposed amendments are in effect. 

DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION 

The commission reviewed the proposed rulemaking action in light of the regulatory analysis 

requirements of Texas Government Code, §200 1. 0225, and determined that the proposed amendments 

meet the definition of a "major environmental rule" as defined in that statute. A "major environmental 

rule" is a rule which is specifically intented 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 proposed rulemaking action is to protect the 

environment and reduce risks to human health from environmental exposure to ozone by keeping 

gasoline vapor recovery rates at the 95% prescribed level of efficiency. The proposed amendments 

may have an adverse material impact on a sector of the economy or a sector of the state. Gas station 

owners and operators in the four ozone nonattainment areas (16 counties) in the state will be required 

to pay $200 more per year in testing costs, and those that need to upgrade their gas dispensing systems 

to become ORVR compatible will incur an expense of an additional $1,100 per dispenser. 
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Although the proposed amendments meet the definition of a "major environmental rule" as defined in 

the 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 proposed 

rulemaking is not subject to the regulatory analysis provisions of §2001.0225(b), because the proposed 

amendments do not meet any of the four applicability requirements. Specifically, the proposed 

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. The commission invites 

public comment on the draft regulatory impact analysis determination. 

TAKINGS IMPACT ASSESSMENT 

The commission evaluated this 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 proposed rulemaking action amends the Stage II 

gasoline vapor recovery rules and SIP narrative required under 42 USC, §7511a(b)(3), (c), and (d). 

The specific purpose of this rulernaking action is to continue to satisfy the provisions of 42 USC and to 

maintain a vapor recovery rate of 95%. The proposed amendments would substantially advance this 

stated purpose by updating control requirements of vapor recovery systems at gasoline dispensing 
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facilities, requiring more frequent testing of these systems, and requiring these facilities to upgrade 

their Stage II vapor recovery systems to be compatible with newer, ORVR-equipped vehicles. 

Facilities that do not upgrade their incompatible Stage II vapor recovery systems may prove to be a 

new source of emissions, thus weakening the SIP integrity. 

Nevertheless, the commission further evaluated this proposed rulemaking action and performed an 

analysis of whether this action would constitute a takings under Chapter 2007. The specific purpose of 

these proposed amendments is to continue to satisfy federal requirements for vapor recovery from 

gasoline dispensing facilities in nonattainment areas of the state. The proposed amendments would 

substantially advance this stated purpose by requiring more frequent testing and upgrading of vapor 

recovery systems at these gasoline stations. Promulgation and enforcement of these proposed 

amendments would be neither a statutory or constitutional taking of private real property. Specifically, 

the proposed 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 proposed regulations. 

In other words, these amendments are proposed 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. Some gas station owners and operators may be 

required to install or modify Stage II vapor control equipment that will make the gas dispensing systems 

ORVR compatible. However, as described in the FISCAL NOTE section of this preamble, the existing 

Stage II rules follow the CARB certification process for vapor recovery equipment. CARB is 

implementing an enhanced program that will require installation of more costly equipment than the 
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alternative proposed in these amendments to Chapter 115. In addition, the alternative proposed in these 

amendments will continue to provide benefits to society by maintaining vapor recovery rates at 95% 

efficiency. Therefore, these proposed 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(1)). No new sources of air 

contaminants will be authorized and the proposed 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 (CFR), to protect 

and enhance air quality in the coastal areas (31 TAC §501.14(q)). This rulemaking action complies 

with 40 CFR 51, Requirements for Preparation, Adoption, and Submittal of Implementation Plans. 
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Therefore, in compliance with 31 TAC §505.22(e), the commission affirms that this rulemaking action 

is consistent with CPM goals and policies. The commission solicits comments on the consistency of the 

proposed rules with the CMP during the public comment period. 

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 HEARING 

A public hearing on this proposal will be held in Austin, Texas, on August 8, 2002, at 2:00p.m., at 

the Texas Natural Resource Conservation Commission, 12100 Park 35 Circle, Building F, Room 2210. 

The hearing will be structured for the receipt of oral or written comments by interested persons. 

Individuals may present oral statements when called upon in order of registration. There will be no 

open discussion during the hearing; however, a commission staff member will be available to discuss 

the proposal 30 minutes prior to the hearing and will answer questions before and after the hearing. 

Persons with disabilities who have special communication or other accommodation needs who are 

planning to attend the hearing should contact the Office of Environmental Policy, Analysis, and 

Assessment at (512) 239-4900. Requests should be made as far in advance as possible. 
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SUBMITTAL OF COMMENTS 

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Comments may be submitted to Ms. Lola Brown, MC 205, Office of Environmental Policy, Analysis, 

and Assessment, Texas Natural Resource Conservation Commission, P.O. Box 13087, Austin, Texas 

78711-3087, or faxed to (512) 239-4808. All comments should reference Rule Log Number 2002-012-

115-AI. Comments must be received by 5:00p.m., August 12, 2002. For further information, please 

contact Ashley Forbes of the Registration, Review, and Reporting Division at (512) 239-0493 or Alan 

Henderson of the Policy and Regulations Division at (512) 239-1510. 
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SUBCHAPTER C: VOLATILE ORGANIC COMPOUND TRANSFER OPERATIONS 

DIVISION 2: FILLING OF GASOLINE STORAGE VESSELS (STAGE I) FOR MOTOR 

VEIDCLE FUEL DISPENSING FACILITIES 

§115.227 

STATUTORY AUTHORITY 

The amendment is proposed under Texas Water Code (TWC), §5.103, concerning Rules, and §5.105, 

concerning General Policy, which authorize the commission to adopt rules necessary to carry out its 

powers and duties under the TWC; and under THSC, §382.017, concerning Rules, which authorizes 

the commission to adopt rules consistent with the policy and purposes of the Texas Clean Air Act 

(TCAA). The amendment is also proposed under THSC, §382.002, concerning Policy and Purpose, 

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, concerning General 

Powers and Duties, which authorizes the commission to control the quality of the state's air; §382.012, 

concerning State Air Control Plan, which authorizes the commission to prepare and develop a general, 

comprehensive plan for the control of the state's air; and §382.039, concerning Attainment Program, 

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 proposed amendment implements THSC, §§382.002, 382.011, 382.012, and 382.039. 
Texas Natural Resource Conservation Commission 

Chapter 115 - Control of Air Pollution from Volatile Organic Compounds 

Rule Log Number 2002-012-115-AI 

§115.227. Exemptions. 

The following exemptions apply: 

Page 21 

[(1) In the Beaumont/Port Arthur, Dallas/Fort Worth, El Paso, and Houston/Galveston 

areas, stationary gasoline storage containers with a nominal capacity less than or equal to 1,000 

gallons, at motor vehicle fuel dispensing facilities for which construction began prior to November 15, 

1992, are exempt from the requirements of this division (relating to Filling of Gasoline Storage Vessels 

(Stage I) for Motor Vehicle Fuel Dispensing Facilities), except for:] 

[(A) §115.222(7) of this title (relating to Control Requirements);] 

[(B) § 115.222(3) of this title as it applies to liquid gasoline leaks; and] 

[(C) §115.224(1) of this title (relating to Inspection Requirements) as it applies 

to liquid gasoline leaks.] 

ill [(2)] In the Beaumont/Port Arthur, Dallas/Fort Worth, El Paso, and 

Houston/Galveston areas, transfers to stationary storage tanks located at a motor vehicle fuel dispensing 

facility which has dispensed no more than 10,000 gallons of gasoline in any calendar month after 

January 1, 1991, and for which construction began prior to November 15, 1992, are exempt from the 
Texas Natural Resource Conservation Commission 

Chapter 115- Control of Air Pollution from Volatile Organic Compounds 

Rule Log Number 2002-012-115-AI 

requirements of this division (relating to Filling of Gasoline Storage Vessels (Stage I) for Motor 

Vehicle Fuel Dispensing Facilities), except for: 

(A) §115.222(7) of this title (relating to Control Requirements); 

(B) §115.222(3) of this title as it applies to liquid gasoline leaks; 

Page 22 

(C) § 115 .224(1) of this title (relating to Inspection Requirements) as it applies 

to liquid gasoline leaks; and 

(D) §115.226(2)(B) of this title (relating to Recordkeeping Requirements). 

ill [(3)] In the covered attainment counties, as defined in §115.10 of this title (relating 

to Definitions), stationary gasoline storage containers with a nominal capacity less than or equal to 

1,000 gallons at motor vehicle fuel dispensing facilities are exempt from the requirements of this 

division [(relating to Filling of Gasoline Storage Vessels (Stage I) for Motor Vehicle Fuel Dispensing 

Facilities)], except for: 

(A) § 115.222(7) of this title [(relating to Control Requirements)]; 

(B) §115.222(3) of this title as it applies to liquid gasoline leaks; and 
Texas Natural Resource Conservation Commission 

Chapter 115 - Control of Air Pollution from Volatile Organic Compounds 

Rule Log Number 2002-012-115-AI 

Page 23 

(C) §115.224(1) of this title [(relating to Inspection Requirements)] as it 

applies to liquid gasoline leaks. 

ill [(4)] In the covered attainment counties, transfers to stationary storage tanks 

located at a motor vehicle fuel dispensing facility which has dispensed less than 125,000 gallons of 

gasoline in any calendar month after January 1, 1999 are exempt from the requirements of this division 

[(relating to Filling of Gasoline Storage Vessels (Stage I) for Motor Vehicle Fuel Dispensing 

Facilities)], except for: 

(A) §115.222(7) of this title; 

(B) §115.222(3) of this title as it applies to liquid gasoline leaks; 

(C) § 115 .224(1) of this title as it applies to liquid gasoline leaks; and 

(D) §115.226(2)(C) of this title [(relating to Recordkeeping Requirements)]. 

ill [(5)] Transfers to the following stationary receiving containers are exempt from the 

requirements of this division [(relating to Filling of Gasoline Storage Vessels (Stage I) for Motor 

Vehicle Fuel Dispensing Facilities)]: 
Texas Natural Resource Conservation Commission 

Chapter 115- Control of Air Pollution from Volatile Organic Compounds 

Rule Log Number 2002-012-115-AI 

Page 24 

(A) containers used exclusively for the fueling of implements of agriculture; 

and 

(B) storage tanks equipped with external floating roofs, internal floating roofs, 

or their equivalent. 
Texas Natural Resource Conservation Commission 

Chapter 115- Control of Air Pollution from Volatile Organic Compounds 

Rule Log Number 2002-012-115-AI 

Page 25 

SUBCHAPTER C: VOLATILE ORGANIC COMPOUND TRANSFER OPERATIONS 

DIVISION 4: CONTROL OF VEIDCLE REFUELING EMISSIONS (STAGE II) 

AT MOTOR VEIDCLE FUEL DISPENSING FACILITIES 

§§115.240 - 115.249 

STATUTORY AUTHORITY 

The amendments are proposed under TWC, §5.103, concerning Rules, and §5.105, concerning 

General Policy, which authorize the commission to adopt rules necessary to carry out its powers and 

duties under the TWC; and under THSC, §382.017, concerning Rules, which authorizes the 

commission to adopt rules consistent with the policy and purposes of the TCAA. The amendments are 

also proposed under THSC, §382.002, concerning Policy and Purpose, 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, concerning General Powers and Duties, 

which authorizes the commission to control the quality of the state's air; §382.012, concerning State 

Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive 

plan for the control of the state's air; and §382.039, concerning Attainment Program, 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 proposed amendments implement TCAA, §§382.002, 382.011, 382.012, and 382.039. 
Texas Natural Resource Conservation Commission 

Chapter 115- Control of Air Pollution from Volatile Organic Compounds 

Rule Log Number 2002-012-115-AI 

Page 26 

§115.240. Stage II Vapor Recovery Defmitions and List of California Air Resources Board 

Certified Stage II Equipment. 

fill. The following words and terms, when used in this division, shall have the following 

meanings, unless the context clearly indicates otherwise. Additional definitions for terms used in this 

division are found in §§115.10, 101.1, and 3.2 [§115.10 of this title (relating to Definitions), §101.1 of 

this title (relating to Definitions), and §3.2] of this title (relating to Definitions). 

[(1) Independent small business marketer of gasolirie- A person engaged in the 

marketing of gasoline who owns the dispensing equipment at a motor vehicle fuel dispensing facility 

and receives at least 50% of his annual income from the marketing of gasoline. A person is not an 

independent small business marketer of gasoline if such person:] 

[(A) is a refiner; or] 

[(B) controls (i.e., owns more than 50% of a business or corporation's stock), 

is controlled by, or is under common control with, a refiner; or] 

[(C) is otherwise directly or indirectly affiliated with a refiner or with a person 

who controls, is controlled by, or is under common control with a refiner (unless the sole affiliation is 

by means of a supply contract or an agreement or contract to use a trademark, trade name, service 

mark, or other identifying symbol or name owned by such refiner or any such person).] 
Texas Natural Resource Conservation Commission 

Chapter 115- Control of Air Pollution from Volatile Organic Compounds 

Rule Log Number 2002-012-115-AI 

Page 27 

(1) Onboard refueling vapor recovery- A system on motor vehicles designed to 

recover hydrocarbon vapors that escape during refueling. 

(2) Onboard refueling vapor recovery (ORVR) compatible - A vacuum assist Stage 

II vapor recovery system designed to prevent the ingestion of ambient air during the fueling of motor 

vehicles equipped with ORVR. 

ill [(2)] Owner or operator of a motor vehicle fuel dispensing facility- Any person 

who owns, leases, operates, or controls the motor vehicle fuel dispensing facility. 

(b) The table in the following figure is a list of the Stage II vapor recovery systems certified by 

a California Air Resources Board (CARB) Executive Order in effect as of January 1, 2002. 

Figure: 30 TAC §115.240(b) 
Texas Natural Resource Conservation Commission Page 28 

Chapter 115 - Control of Air Pollution from Volatile Organic Compounds 

Rule Log Number 2002-012-115-AI 

CARB Certified Stage II Vapor Recovery Systems in Effect as of January 1, 2002. 

CARB Executive Certified System Order Number 

G-70-25-AA Recertification of the Atlantic Richfield Balance 

Phase II Vapor Recovery System 

G-70-33-AB Certification of the Modified Hirt VCS-200 Vacuum Assist 

Phase II Vapor Recovery System 

G-70-36-AD Modification of Certification of the OPW Balance 

Phase II Vapor Recovery System 

G-70-37-B Modification of Certification of the Chevron Balance 

Phase II Vapor Recovery System with OPW nozzles for Service 

G-70-38-AB Recertification of the Texaco Balance Phase II Vapor Recovery System 

G-70-48-AA Recertification of the Mobil Oil Balance Phase II Vapor Recovery System 

G-70-49-AA Recertification of the Union Balance Phase II Vapor Recovery System 

G-70-52-AM Certification ofComponents for Red Jacket, Hirt, and 

Balance Phase II Vapor Recovery System 

G-70-53-AA Recertification of the Chevron Balance Phase II Vapor Recovery System 

G-70-70-AC Certification of the Healy Phase II Vapor Recovery System for Service Statiom 

G-70-77 Certification of the OPW Repair/Replacement Parts and Modification 

of the Certification of the OPW Balance Phase II Vapor Recovery System 

G-70-78 Certification of the E-Z Flo Nozzle Company Rebuilt Vapor Recovery 

Nozzles and Vapor Recovery Components 

G-70-101-B Certification of the E-Z Flo Model 3006 and 3007 Vapor Recovery Nozzles 

and Use of E-Z Flo Components with OPW Models 11 VC and 11 VE 

Vapor Recovery Nozzles 

G-70-107 Certification of Rainbow Petroleum Products Model RA3003, 

RA3005, RA3006 and RA3007 Vapor Recovery Nozzles 

and Vapor Recovery Components 

G-70-110 Certification of Stage I and II Vapor Recovery Systems 

for Methanol Fueling Facilities 

G-70-118-AB Certification of the Amoco V -1 Vapor Recovery System 

G-70-125-AA Modification of Certification of the Husky Model V Balance 

Phase II Vapor Recovery Nozzle 
Texas Natural Resource Conservation Commission Page 29 

Chapter 115 - Control of Air Pollution from Volatile Organic Compounds 

Rule Log Number 2002-012-115-AI 

CARB Executive Certified System Order Number 

G-70-127 Certification of the OPW Model111-V Phase Vapor Recovery Nozzle 

G-70-134 Certification of the E-Z Flo Rebuilt A-4000 Series and 

llV-Series Vapor Recovery Nozzle 

G-70-150-AE Modification to the Certification of the Marconi Commerce Systems, Inc. 

(MCS) "Formerly Gilbarco" VaporVac Phase II Vapor Recovery System 

G-70-153-AD Modification to the Certification of the Dresser/Wayne 

Wayne Vac Phase II Vapor Recovery System 

G-70-154-AA Modification to the Certification of the Tokheim Max V ac 

Phase II Vapor Recovery System 

G-70-159-AB Modification to the Certification of the Saber Nozzle 

for Use with the Gilbarco VaporVac Phase II Vapor Recovery System 

G-70-163-AA Certification of the OPW VaporEZ Phase II Vapor Recovery System 

G-70-164-AA Modification to the Certification of the Hasstech VCP-3A 

Vacuum Assist Phase II Vapor Rec~very System 

G-70-165 Healy Vacuum Assist Phase II Vapor Recovery System 

G-70-169-AA Modification to the Certification of the Franklin Electric 

INTELLIVAC Phase II Vapor Recovery System 

G-70-170 Certification of the E-Z Flo Rebuilt 5005 and 5015 Nozzles 

for use with the Balance Phase II Vapor Recovery System 

G-70-177-AA Modification to the Certification of the Hirt VCS400-7 

Vacuum Assist Phase II Vapor Recovery System 

G-70-179 Certification of the Catlow ICVN-V1 Vacuum Assist 

Phase II Vapor Recovery System 

G-70-180 Order Revoking Certification of Healy Phase II Vapor Recovery 

Systems for Gasoline Dispensing Facilities 

G-70-183-AA Relating to Language Correction in Existing 

Executive Order G-70-183 (Healy/ Franklin System) 

G-70-186 Certification of the Healy 400 ORVR Vapor Recovery System 

G-70-188 Certification of the Catlow ICVN Vapor Recovery Nozzle System 

for use with the Gilbarco VaporVac Vapor Recovery System 
Texas Natural Resource Conservation Commission 

Chapter 115- Control of Air Pollution from Volatile Organic Compounds 

Rule Log Number 2002-012-115-AI 

CARB Executive Certified System Order Number 

G-70-191-AA Relating to Language Correction in Existing Executive Order 

G-70-191 (Healy 600 ORVR/800) 

G-70-196 Certification of the Saber Technologies, LLC 

SaberVac VR Phase II Vapor Recovery System 

§115.241. Emission Specifications. 

Page 30 

No person in the counties listed in § 115.249 of this title (relating to Counties and Compliance 

Schedules) [Beaumont/Port Arthur, Dallas/Fort Worth, El Paso, and Houston/Galveston areas as 

defined in §115.10 of this title (relating to Definitions)] shall transfer or allow the transfer of gasoline 

from any stationary storage container into a motor vehicle fuel tank, unless an approved Stage II vapor 

recovery system has been installed which is certified to reduce the emissions of volatile organic 

compound to the atmosphere by at least 95% . 

§115.242. Control Requirements. 

For all persons in the counties listed in §115.249 of this title (relating to Counties and 

Compliance Dates) and [Beaumont/Port Arthur, Dallas/Fort Worth, El Paso, and Houston/Galveston 

areas] affected by this division [undesignated head] (relating to Control of Vehicle Refueling Emissions 

(Stage II) at Motor Vehicle Fuel Dispensing Facilities), a vapor recovery system will be assumed to 

comply with the specified emission limitation of § 115.241 of this title (relating to Emission 

Specifications) if the following conditions are met. 
Texas Natural Resource Conservation Commission 

Chapter 115 - Control of Air Pollution from Volatile Organic Compounds 

Rule Log Number 2002-012-115-AI 

Page 31 

(1) The facility is equipped with a Stage II vapor recovery system [that has been] 

certified by a California Air Resources Board (CARB) Executive Order [concerning Stage II vapor 

recovery systems] in effect as of January 1, 2002 (as specified in §115.240(b) of this title (relating to 

Stage II Vapor Recovery Definitions and List of California Air Resources Board Certified Stage II 

Equipment)); or certified by a CARB Executive Order in effect after January 1, 2002 [August 1993], 

except that the executive director reserves the right to continue to recognize any CARB Executive 

Orders decertified after January 1, 2002: or certified by an alternative procedure which meets the 

requirements specified in §115.243 of this title (relating to Alternate Control Requirements). In 

addition: 

(A) Stage II vapor recovery balance systems which include vapor check valves 

in a location other than the nozzle shall not be installed; [and] 

(B) Stage II vapor recovery systems which include dual-hang (non-coaxial) 

hoses shall not be installed; and [.] 

(C) all vacuum assist Stage II vapor recovery systems must be onboard 

refueling vapor recovery (ORVR) compatible, as defined in §115.240 of this title in accordance with 

the schedules in § 115.249 of this title. 

(2) All underground piping must be installed by a person holding a valid License A as 

defined in §§334.401, 334.407. 334.424 of this title (relating to License and Registration Required; 
Texas Natural Resource Conservation Commission 

Chapter 115 - Control of Air Pollution from Volatile Organic Compounds 

Rule Log Number 2002-012-115-AI 

Page 32 

Other Requirements for an Underground Storage Tank Container: and Other Requirements for an OnSite Supervisor) [§§334.401 - 334.428 of this title (relating to Underground Storage Tank Contractor 

Registration and Installer Licensing)]. Piping specifications shall be in compliance with the applicable 

CARB Executive Order(s) for the Stage II vapor recovery system. For any facility newly constructed 

after November 15, 1993, or at any facility undergoing a major modification to the Stage II vapor 

recovery system after November 15, 1993, the following requirements shall apply where piping 

specifications are not provided in the applicable CARB Executive Order(s). 

(A) All underground piping shall be constructed of rigid material and conform 

to the applicable portions of the technical standards for new piping defined by §334.45(c) and (e) 

[§334.45(c)(1)(A) - (C) and (3)] of this title (relating to Technical Standards for New Underground 

Storage Tank [UST] Systems) [and §334.45(e)(1) of this title]. 

(B) Noncorrodible [Noncorrosive] piping or cathodically protected metallic 

piping shall be used. In the event metallic piping is used, the applicable portions of the general 

requirements for corrosion protection defined by §334.49(a)(1) - (5) and (c)(1) - (4) of this title 

(relating to Corrosion Protection) shall apply. 

(C) Minimum slope on vapor piping shall be one eighth of an inch per foot 

from the dispenser to the storage tank. Piping installed after January l, 2002 shall not include liquid 

collection points (condensate traps) unless the associated underground storage tanks: 
Texas Natural Resource Conservation Commission 

Chapter 115 - Control of Air Pollution from Volatile Organic Compounds 

Rule Log Number 2002-012-115-AI 

(i) were installed prior to November 15, 1992; and 

(ii) are not at sufficient depth to allow for minimum slope 

requirements. 

(D) - (E) (No change.) 

Page 33 

(F) If a fire protection agency with jurisdiction requires a vapor shear valve on 

the vapor return line at the base of a dispenser, the shear valve shall be CARE-certified and/or 

Underwriters Laboratories [UL] listed for use in vapor recovery systems. 

(3) The owner or operator shall maintain the Stage II vapor recovery system in proper 

operating condition, as specified by the manufacturer and/or any applicable CARB Executive Order(s), 

and free of defects that would impair the effectiveness of the system, including, but not limited to: 

(A) - (I) (No change.) 

(J) pressure/vacuum relief valves, vapor check valves, or Stage I dry breaks 

that are inoperative or defective; [and] 

(K) a system monitor or printer that is malfunctioning or out of paper; 
Texas Natural Resource Conservation Commission Page 34 

Chapter 115 - Control of Air Pollution from Volatile Organic Compounds 

Rule Log Number 2002-012-115-AI 

(L) a nozzle. hose. break-away. or any other component that is not approved 

for use with the certified vapor recovery system in use; and 

(M) [(K)] any equipment defect that is identified in the [a CARB] certification 

of an approved system as substantially impairing the effectiveness of the system in reducing refueling 

vapor emissions. 

(4) - (5) (No change.) 

(6) Upon identification of any of the defects described in paragraphs {3) and (4) of this 

section, any inspector with jurisdiction shall tag the impaired equipment out -of-order. The 

"Out-of-Order" tag shall state "use of this device is prohibited under state law, and unauthorized 

removal of this tag or use of this equipment will constitute a violation of the law punishable by a 

maximum civil penalty of up to $25,000 per day or a maximum criminal penalty of $50,000 and/or up 

to 180 days in jail." The impaired equipment shall remain out of service until such time as the 

equipment has been properly repaired, replaced, or adjusted, as necessary. Once repairs are 

completed, the "Out-of-Order" tag may be removed, and the equipment shall be returned to service by 

the owner or operator or facility representative upon notification to the agency that originally tagged 

the equipment out-of-service in the following manner: verbal notification prior to placing the 

equipment back in service followed by written notification received by the agency within ten [10] days 

of placing the equipment back in service. For the purposes of this paragraph, "facility representative" 

has the meaning ascribed to it in §115.248(1) of this title (relating to Training Requirements). 
Texas Natural Resource Conservation Commission 

Chapter 115- Control of Air Pollution from Volatile Organic Compounds 

Rule Log Number 2002-012-115-AI 

(7) - (8) (No change.) 

(9) The owner or operator of a motor vehicle fuel dispensing facility shall post 

Page 35 

operating instructions conspicuously on the front of each gasoline dispensing pump equipped with a 

Stage II vapor recovery system. These instructions shall, at a minimum, include: 

(A) a clear description of how to correctly dispense gasoline using the system; 

(B) a warning against attempting to continue to refuel after initial automatic 

shutoff of the system (an indication that the vehicle fuel tank is full).:. [; and] 

[(C) the telephone number of the Texas Natural Resource Conservation 

Commission (TNRCC) Stage II Vapor Recovery Hotline (1-800-533-3AIR) to be used for questions, 

comments, or the reporting of any problems experienced with the system.] 

(10) Any motor vehicle fuel dispensing facility that becomes subject to the provisions 

of this division [undesignated head] by exceeding the throughput limits of §115.247 [§§115.247, 

115.249(2), or 115.249(3)] of this title (relating to Exemptions [, and Counties and Compliance 

Schedules]) shall have 120 days to come into compliance and will remain subject to the provisions of 

this division [undesignated head] even if its gasoline throughput later falls below throughput limits, 

except that: 
Texas Natural Resource Conservation Commission 

Chapter 115 - Control of Air Pollution from Volatile Organic Compounds 

Rule Log Number 2002-012-115-AI 

(A) (No change.) 

(B) at a facility exempted under §115.247(2) of this title [or having an 

Page 36 

extended compliance schedule under §115.249(3) of this title,] for which an exceedance occurred for 

any consecutive 30-day period due to an emergency condition or natural disaster after November 15, 

1992, the owner or operator may petition the executive director to permit the continuance of the 

facility's exempt status or extended compliance schedule status. If exempt [or extended compliance 

schedule] status is continued by the executive director, the requirement of annual verification of the 

status as stated in §115.247(2) of this title must be fulfilled. 

(11) Any facility having installed Stage II vapor recovery system(s) or component(s) 

[components(s)] previously certified by CARB via an Executive Order, for which certification was [has 

been] revoked by CARB, prior to January 1, 2002 [as of August 1993], must install and have 

operational an [a different] approved system(s) or component(s) as referenced in paragraph (1) of this 

section [§115.242(1) of this title (relating to Emission Specifications)] as soon as practicable, but no 

later than September 1, 2006 [three years from the date that CARB revoked the certification]. 

(12) After November 15, 1993, the owner or operator shall provide written 

notification of any Stage II vapor recovery system installation to the appropriate [TNRCC] regional 

office and any local air pollution program at least 30 days prior to start of construction. The 

information in the notification shall include, but is not limited to: 
Texas Natural Resource Conservation Commission 

Chapter 115- Control of Air Pollution from Volatile Organic Compounds 

Rule Log Number 2002-012-115-AI 

Page 37 

(A) facility name, location (physical and mailing address); name, address, and 

phone number of owner(s) and operator(s); name and phone number of owner's representative; name, 

address, and phone number of contractor(s); and the [TNRCC] Petroleum Storage Tank [Division] 

Facility ID number and Owner ID number (if known); 

(B) - (C) (No change.) 

§115.243. Alternate Control Requirements. 

Alternate [For all persons iii the Beaumont/Port Arthur, Dallas/Fort Worth, El Paso, and 

Houston/Galveston areas affected by this undesignated head (relating to Control of Vehicle Refueling 

Emissions (Stage II) at Motor Vehicle Fuel Dispensing Facilities), alternate] methods of complying with 

§115.242(1) of this title (relating to Control Requirements) may be approved by the executive director 

if: 

(1) emission reductions are demonstrated to be [substantially] equivalent or greater 

than those afforded by the requirements in §115.242(1) of this title; and 

(2) the Stage II vapor recovery system is capable of meeting the applicable 

performance requirements prescribed in this division, as verified by third-party evaluation conducted 

by a qualified independent testing organization using a code or standard of practice, acceptable to the 
Texas Natural Resource Conservation Commission 

Chapter 115 - Control of Air Pollution from Volatile Organic Compounds 

Rule Log Number 2002-012-115-AI 

Page 38 

executive director, which has been developed by a nationally recognized agency, association, or 

independent testing laboratory [certified by the California Air Resources Board (CARB)]. 

§115.244. Inspection Requirements. 

The [For the Beaumont/Port Arthur, Dallas/Fort Worth, El Paso, and Houston/Galveston 

areas, the] owner or operator of any motor vehicle fuel dispensing facility subject to the control 

requirements of this division [undesignated head] (relating to Control of Vehicle Refueling Emissions 

(Stage II) at Motor Vehicle Fuel Dispensing Facilities) shall conduct daily inspections of the Stage II 

vapor recovery system for the defects specified in §115.242(3) and (4) of this title (relating to Control 

Requirements) as follows. 

(1) For all systems, the daily inspections shall include the applicable portions of 

§115.242(3)(A)- (F), (H), (I) [(H)- (1)], and (K) and (4) of this title. 

(2) For assist systems that use [utilize] a processor, indicating mechanisms designed by 

the Stage II vapor recovery equipment manufacturer to verify proper operation shall be inspected daily. 

Examples of these indicating mechanisms include flame detection sensors, remote (from the processor) 

visual or audible displays indicating system operation, or other means as described in the applicable 

Executive Order for the system. 

(3) - (4) (No change.) 
Texas Natural Resource Conservation Commission 

Chapter 115 - Control of Air Pollution from Volatile Organic Compounds 

Rule Log Number 2002-012-115-AI 

§115.245. Testing Requirements. 

For all affected persons [in the Beaumont/Port Arthur, Dallas/Fort Worth, El Paso, and 

Page 39 

Houston/Galveston areas], compliance with §115.241 and §115.242 of this title (relating to Emission 

Specifications and Control Requirements) shall be determined at each facility within 30 days of 

installation of the Stage II equipment by testing as follows. 

(1) Stage II vapor recovery systems shall successfully meet the performance criteria 

proper to the system by successfully completing the following 1

testing requirements using [utilizing] the 

test procedures as found in the State of Texas Vapor Recovery Test Procedures Handbook (handbook) 

(March 2002) [Texas Natural Resource Conservation Commission Stage II Vapor Recovery Test 

Procedure Handbook (August 1993)]. 

(A) (No change.) 

(B) For bootless nozzle assist systems, the volume-to-liquid ratio (V/L ratio) or 

air-to-liquid ratio (A/L ratio) shall be within acceptable limits. 

(C) Each system shall meet minimum performance criteria specific to the 

individual system as defined in the California Air Resources Board Executive Order. The criteria and 

test methods contained in the handbook [Texas Natural Resource Conservation Commission (TNRCC) 

Stage II Vapor Recovery Test Procedure Handbook (August 1993)] specified in paragraph {1) 
Texas Natural Resource Conservation Commission Page 40 

Chapter 115- Control of Air Pollution from Volatile Organic Compounds 

Rule Log Number 2002-012-115-AI · 

[subparagraph (A)] of this section [paragraph] shall take precedence for applicable tests where 

performance criteria exist in both the Executive Order and the handbook [Stage II Vapor Recovery Test 

Procedure Handbook]; otherwise, the Executive Order specific criteria shall take precedence. 

(D) The owner or operator.._ or his or her representative.._ shall provide written 

notification to the appropriate [TNRCC] regional office and any local air pollution program with 

jurisdiction of the testing date and who will conduct the test. The notification must be received by the 

appropriate regional office and any local air pollution program with jurisdiction [agency] at least ten 

[10] working days in advance of the test, and the notification must contain the information and be in the 

format as found in the handbook [TNRCC Stage II Vapor Recovery Test Procedure Handbook (August 

1993)]. Notification may take the form of a facsimile or telecopier transmission, as long as the 

facsimile is received by the appropriate regional office [TNRCC] and any local air pollution program 

with jurisdiction at least ten [10] working days prior to the test and it is followed up within two weeks 

of the transmission with a written notification. The owner or operator.._ or his or her representative.._ 

shall give at least 24-hour notification to the appropriate [TNRCC] regional office and any local air 

pollution program with jurisdiction if a scheduled test is cancelled. In the event that the test 

cancellation is not anticipated prior to 24 hours before the scheduled test, the owner or operator.._ or his 

or her representative.._ shall notify the appropriate [TNRCC] regional office and any local air pollution 

program with jurisdiction as soon in advance of the scheduled test as is practicable. 

[(2) Pressure decay testing shall be conducted annually and in accordance with the test 

procedures referenced in paragraph (1) of this section.] 
Texas Natural Resource Conservation Commission 

Chapter 115 -Control of Air Pollution from Volatile Organic Compounds 

Rule Log Number 2002-012-115-AI 

Page 41 

ill [(3)] Verification of proper operation of the Stage II equipment shall be performed 

in accordance with the test procedures referenced in paragraph (1) of this section at least every twelve 

months [five years] or upon major system replacement or modification, whichever occurs first. The 

verification shall include all functional tests that were required for the initial system test. The owner or 

operator ... or his or her representative ... shall provide written notification to the appropriate [TNRCC] 

regional office and any local air pollution program with jurisdiction of the testing date and who will 

conduct the test. The notification must be received by the appropriate regional office and any local air 

pollution program with jurisdiction [agency] at least ten [10] working days in advance of the test, and 

the notification must contain the information and be in the format as found in the handbook [TNRCC 

Stage II Vapor Recovery Test Procedure Handbook (August 1993)]: Notification may take the form of 

a facsimile or telecopier transmission, as long as the facsimile is received by the appropriate regional 

office [TNRCC] and any local air pollution program with jurisdiction at least ten [10] working days 

prior to the test and it is followed up within two weeks of the transmission with a written notification. 

The owner or operator ... or his or her representative ... shall give at least 24-hour notification to the 

appropriate [TNRCC] regional office and any local air pollution program with jurisdiction if a 

scheduled test is cancelled. In the event that the test cancellation is not anticipated prior to 24 hours 

before the scheduled test, the owner or operator ... or his or her representative ... shall notify the 

appropriate [TNRCC] regional office and any local air pollution program with jurisdiction as soon in 

advance of the scheduled test as is practicable. For the purposes of this paragraph, a major system 

replacement or modification is defined as: 
Texas Natural Resource Conservation Commission 

Chapter 115- Control of Air Pollution from Volatile Organic Compounds 

Rule Log Number 2002-012-115-AI 

Page 42 

(A) the repair or replacement of any stationary storage tank equipped with a 

Stage II vapor recovery system; 

(B) the replacement of an existing CARE-certified Stage II vapor recovery 

system with a system certified by CARB under a different CARB Executive Order; [or] 

(C) the repair or replacement of any part of a piping system attached to a 

stationary storage tank equipped with a Stage II vapor recovery system, excluding the repair or 

replacement of piping which is accessible for such repair or replacement without excavation or 

modification of the vapor recovery equipment[.] ; or 

(D) the replacement of at least one fuel dispenser. 

ill [(4)] Minor modifications of these test methods may be approved by the executive 

director. 

!12 [(5)] All required tests shall be conducted either in the presence of a Texas 

Commission on Environmental Quality [TNRCC] or local program inspector with jurisdiction, or by a 

person who is registered with the executive director to conduct Stage II vapor recovery tests [TNRCC 

by successfully completing a TNRCC proficiency test relating to Stage II Vapor Recovery Test 

Procedures and Methods]. The requirement to be registered shall begin on November 15, 1993, or 60 

days after the executive director [TNRCC] has established the registry, whichever occurs later. The 
Texas Natural Resource Conservation Commission 

Chapter 115 -Control of Air Pollution from Volatile Organic Compounds 

Rule Log Number 2002-012-115-AI 

Page 43 

executive director [TNRCC] may remove an individual from the registry of testers for any of the 

following causes: 

(A) the executive director [TNRCC] can demonstrate that the individual has 

failed to conduct the test(s) properly in at least three separate instances; or 

(B) the individual falsifies test results for tests conducted to fulfill the 

requirements of this section. 

ill [(6)] The owner or operator ... or his or her representative ... shall submit the results of 

all tests required by this section to the appropriate [TNRCC] regional office and any local air pollution 

control program with jurisdiction within ten [10] working days of the completion of the test(s) using the 

format specified in the handbook [TNRCC Stage II Vapor Recovery Test Procedure Handbook 

(August 1993)]. For purposes of on-site recordkeeping, the Test Procedures [Cover] Results Cover 

Sheet, properly completed with the summary of the testing, is acceptable. The detailed results from 

each test conducted along with a properly completed summary sheet, as provided for in the handbook 

[Stage II Vapor Recovery Test Procedure Handbook], shall be submitted to the appropriate [TNRCC] 

regional office and any local air pollution control program with jurisdiction. 
Texas Natural Resource Conservation Commission 

Chapter 115 - Control of Air Pollution from Volatile Organic Compounds 

Rule Log Number 2002-012-115-AI 

§115.246. Recordkeeping Requirements. 

Page 44 

The [For the Beaumont/Port Arthur, Dallas/Fort Worth, El Paso, and Houston/Galveston 

areas, the] owner or operator of any motor vehicle fuel dispensing facility subject to the control 

requirements of this division [undesignated head] (relating to Control of Vehicle Refueling Emissions 

(Stage p) at Motor Vehicle Fuel Dispensing Facilities) shall maintain the following records: 

(1) a copy of the California Air Resources Board (CARB) Executive Order(s) or third 

party certification(s) for the Stage II vapor recovery system and any related components installed at the 

. facility; 

(2) a copy of any owner or operator request for executive director approval under 

[pursuant to] §115.243 of this title (relating to Alternate Control Requirements) and any executive 

director approval issued under [pursuant to] § 115.243 of this title; 

(3) - (6) (No change.) 

(7) all records shall be maintained for at least two years, except that the CARB 

Executive Order(s) or third party certification(s) specified in paragraph (1) of this section, any 

applicable alternate method of control requirement approval specified in paragraph (2) of this section, 

and testing results specified in paragraph (5) of this section shall be kept on-site indefinitely. These 

records shall be: 
Texas Natural Resource Conservation Commission 

Chapter 115- Control of Air Pollution from Volatile Organic Compounds 

Rule Log Number 2002-012-115-AI 

Page 45 

(A) kept on-site at facilities ordinarily manned during business hours, and 

made immediately available for review upon request by authorized representatives of the executive 

director, EPA [Texas Natural Resource Conservation Commission (TNRCC), the United States 

Environmental Protection Agency (EPA)], or any local air pollution control program with jurisdiction; 

or 

(B) [made available for review at the site by authorized representatives of 

TNRCC, EPA, or any local air pollution control program with jurisdiction within 48 hours after being 

requested by the representative] for facilities [ordinarily] unmanned at the time of inspection, made 

available at the site within 48 hours after being requested by authorized representatives of the executive 

director, EPA, or any local air pollution control program with jurisdiction [during business hours]. 

§115.247. Exemptions. 

The [For the Beaumont/Port Arthur, Dallas/Fort Worth, El Paso, and Houston/Galveston 

areas, the] following are exempt from the requirements of this division [undesignated head] (relating to 

Control of Vehicle Refueling Emissions (Stage II) at Motor Vehicle Fuel Dispensing Facilities): 

(1) (No change.) 

(2) any motor vehicle fuel dispensing facility for which construction began prior to 

November 15, 1992, and which has a monthly throughput of less than 10,000 gallons of gasoline. For 
Texas Natural Resource Conservation Commission 

Chapter 115- Control of Air Pollution from Volatile Organic Compounds 

Rule Log Number 2002-012-115-AI 

the purposes of this paragraph, the monthly throughput shall be based on the maximum monthly 

Page 46 

gasoline throughput for any calendar month after January 1, 1991. To maintain a facility's exempt 

status under this paragraph, the owner or operator must submit the facility's monthly gasoline 

throughput on an annual basis no later than January 31 of each year to the executive director or his 

designated representative [appropriate Texas Natural Resource Conservation Commission regional 

office and any local air pollution control program with jurisdiction]. 

§115.248. Training Requirements. 

For all persons [in the Beaumont/Port Arthur, Dallas/Fort Worth, El Paso, and 

Houston/Galveston areas] affected by this division [undesignated head] (relating to Control of Vehicle 

Refueling Emissions (Stage II) at Motor Vehicle Fuel Dispensing Facilities), the following training 

requirements apply. 

(1) The owner or operator of a motor vehicle fuel dispensing facility shall ensure that 

at least one facility representative receive training and instruction in the operation and maintenance of 

the Stage II vapor recovery system by successfully completing a training course approved by the 

executive director [Texas Natural Resource Conservation Commission (TNRCC)]. Successful [Such 

successful] completion shall constitute certification of the facility representative. Each such facility 

representative is then responsible for making every current and future employee aware of the purposes 

and correct operating procedures of the system. The required training shall be completed as soon as 
Texas Natural Resource Conservation Commission 

Chapter 115- Control of Air Pollution from Volatile Organic Compounds 

Rule Log Number 2002-012-115-AI 

Page 47 

practicable prior to the initiation of operation of the facility's Stage II equipment. The following 

additional requirements apply to the designation of the facility representative. 

(A)- (B) (No change.) 

(2) (No change.) 

(3) An [A TNRCC] approved training course will include, but is not limited to, the 

following: 

(A) - (E) (No change.) 

( 4) The executive director [TNRCC] may revoke approval of a training course if the 

training provider: 

(A) fails to administer the training course as proposed in the application made 

to the executive director [TNRCC] to provide such training; or 

(B) fails to notify the executive director [TNRCC] of upcoming courses in 

writing at least 21 days prior to the date of the training as to the date, time, and place the training is to 

be held, or in the event of a scheduled course cancellation, fails to notify the executive director 

[TNRCC] at least 24 hours in advance of the cancellation, except: 
Texas Natural Resource Conservation Commission 

Chapter 115- Control of Air Pollution from Volatile Organic Compounds 

Rule Log Number 2002-012-115-AI 

Page 48 

(i) for all training providers, if conditions exist such that 24-hour 

notice of course cancellation is impossible or impracticable, notice must be given to the executive 

director [TNRCC] as soon as practicable, preferably prior to the time the course was originally 

scheduled; and 

(ii) for training courses provided at no charge to the persons who 

attend, such as company-provided inhouse training, the 21-day advance notice shall not apply, and 

advance notice of upcoming courses is only required when such notice is requested, in writing, by the 

executive director [TNRCC]. 

§115.249. Counties and Compliance Schedules. 

(a) The rules in this division (relating to Control of Vehicle Refueling Emissions (Stage II) at 

Motor Vehicle Fuel Dispensing Facilities) apply to affected persons in Brazoria, Chambers. Collin, 

Dallas. Denton, El Paso, Fort Bend. Galveston. Harris. Hardin, Jefferson, Liberty. Montgomery, 

Orange, Tarrant, and Waller Counties . 

.Qll All affected persons [in Brazoria, Chambers, Collin, Dallas, Denton, El Paso, Fort Bend, 

Galveston, Harris, Hardin, Jefferson, Liberty, Montgomery, Orange, Tarrant, and Waller Counties] 

shall continue to comply [be in compliance] with this division as reguired by §115.930 of this title 

(relating to Compliance Dates). [undesignated head (relating to Control of Vehicle Refueling Emissions 

(Stage II) at Motor Vehicle Fuel Dispensing Facilities) according to the following schedules:] 
Texas Natural Resource Conservation Commission 

Chapter 115 - Control of Air Pollution from Volatile Organic Compounds 

Rule Log Number 2002-012-115-AI 

(c) All vacuum assist Stage II vapor recovery systems must be onboard refueling vapor 

recovery (ORVR) compatible according to the following schedules: 

Page 49 

(1) all installations of vacuum assist Stage II vapor recovery systems installed on or 

after April 1, 2004, must be ORVR compatible: and 

(2) all vacuum assist Stage II vapor recovery systems installed before April 1, 2004, 

must be upgraded to an ORVR compatible system no later than April 1, 2007. 

[(1) as soon as practicable, but no later than May 15, 1993, or upon initial start-up, 

whichever is later, for facilities for which construction began after November 15, 1990;] 

[(2) as soon as practicable, but no later than November 15, 1993, for facilities with a 

monthly throughput of at least 100,000 gallons of gasoline. For the purposes of this paragraph, the 

monthly throughput shall be based on the maximum monthly gasoline throughput for any calendar 

month after January 1, 1991;] 

[(3) as soon as practicable, but no later than November 15, 1994, for all other 

facilities, except that individual independent small business marketers of gasoline (ISBMG), as defined 

in §115.10 of this title (relating to Definitions), may petition the executive director for an extension of 

the compliance deadline to December 22, 1998, or until one or more of the facility's gasoline storage 

tanks are replaced and/or equipped with corrosion protection as required by the Petroleum Storage 
Texas Natural Resource Conservation Commission 

Chapter 115 - Control of Air Pollution from Volatile Organic Compounds 

Rule Log Number 2002-012-115-AI 

Page 50 

Tank (PST) Division of the Texas Natural Resource Conservation Commission (TNRCC), whichever 

occurs first, provided that the petition is submitted no later than January 15, 1994, and approved by the 

executive director. The availability of an extended compliance schedule for independent small business 

marketers of gasoline only applies to individual facilities for which the monthly gasoline throughput is 

less than 50,000 gallons per month, based on the maximum monthly gasoline throughput for any 

calendar month after January 1, 1991. In order for the station to maintain ISBMG compliance date 

extension status under this paragraph, the facility shall not exceed the 50,000 gallons per month 

gasoline throughput limit, and the owner or operator shall submit the facility's monthly gasoline 

throughput on an annual basis no later than January 31 of each year to the appropriate TNRCC regional 

office and any_ local air pollution control program with jurisdiction until such time as the Stage II vapor 

recovery system is installed; and] 

[(4) if more than one of the compliance schedules in paragraphs (1) - (3) of this section 

applies to a facility, the earliest compliance schedule shall take precedence.] 
REVISIONS TO THE STATE IMPLEMENTATION PLAN (SIP) 

FOR THE CONTROL OF OZONE AIR POLLUTION 

STAGE II VAPOR RECOVERY PROGRAM SIP REVISION 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

P.O. BOX 13087 

AUSTIN, TEXAS 78711-3087 

RULE LOG NUMBER 2002-012-SIP-AI 

June 26, 2002 
SECTION VI. CONTROL STRATEGY 

A. Introduction (No change.) 

B. Ozone (Revised) 

1. Dallas/Fort Worth (No change.) 

2. Houston/Galveston (No change.) 

3. Beaumont/Port Arthur (No change.) 

4. El Paso (No change.) 

5. Regional Strategies (No change.) 

6. Stage II Vapor Recovery Program (New) 

C. Particulate Matter (No change.) 

D. Carbon Monoxide (No change.) 

E. Lead (No change.) 

F. Oxides ofNitrogen (No change.) 

G. Sulfur Dioxide (No change.) 

H. Conformity with National Ambient Air Quality Standards (No change.) 

I. Site Specific (No change.) 

J. Mobile Sources Strategies (No change.) 

11 
THE STAGE II VAPOR RECOVERY PROGRAM 

TABLE OF CONTENTS 

Chapter 1 : General 

1.1 Background 

1.2 Public Hearing Information 

1.3 Social and Economic Considerations 

1.4 Fiscal and Human Resources 

Chapter 2: Applicability 

Chapter 3: Certification of Approved Vapor Recovery Systems 

Chapter 4: Training 

Chapter 5: Public Information 

Chapter 6: Facility Recordkeeping 

Chapter 7: TCEQ Recordkeeping 

Chapter 8: Equipment Installation and Testing 

Chapter 9: TCEQ Investigations 

Chapter 10: Program Penalties 

lll 
THE STAGE II VAPOR RECOVERY PROGRAM 

DEFINITIONS 

Motor vehicle refueling facility - Any site where gasoline is transferred from a stationary storage tank 

to a motor vehicle fuel tank used to provide fuel to the engine of that motor vehicle. 

Onboard refueling vapor recovery (ORVR) - A system on motor vehicles designed to recover 

hydrocarbon vapors that escape during refueling. 

Onboard refueling vapor recovery (ORVR) compatible- A vacuum assist Stage II vapor recovery 

system designed to prevent the ingestion of ambient air during the fueling of motor vehicles with ORVR. 

Owner or operator of a motor vehicle fuel dispensing facility - Any person who owns, leases, 

operates, or controls the motor vehicle fuel dispensing facility. 

Vapor recovery systems- Systems designed to control the vapors generated during the vehicle refueling 

process. 

IV 
CHAPTER!: GENERAL 

l.lBACKGROUND 

The 1990 Amendments to the Federal Clean Air Act (FCAA) authorized the U.S. Environmental 

Protection Agency (EPA) to designate areas failing to meet the national ambient air quality standard for 

ozone as nonattainment and to classify them according to degree of severity. There are four such areas in 

Texas, including Houston/Galveston, Beaumont/Port Arthur, El Paso, and Dallas/Fort Worth ozone 

nonattainment areas. States were required to submit a revision to the SIP no later than November 15, 

1992, which includes a Stage II vapor recovery program to control gasoline vapors from the refueling of 

motor vehicles. 

The Stage II vapor recovery program involves use of technology that prevents gasoline vapors from 

escaping during refueling. Gasoline vapors are volatile organic compounds which react with nitrogen 

oxides in the presence of sunlight to form ozone. As part of the control strategy for ozone attainment, the 

EPA mandates that Stage II refueling requirements apply to all public and private refueling facilities 

dispensing 10,000 gallons or more of gasoline per month. The federal throughput constitutes a minimum 

threshold, but a state may be more stringent in adopting a throughput standard. The Texas Commission 

on Environmental Quality (TCEQ or commission) applies a more stringent throughput standard in the 

sixteen ozone nonattainment counties by requiring all facilities constructed after November 15, 1992 to 

install Stage II vapor recovery regardless of throughput. 

In compliance with the FCAA, EPA issued enforcement guidance dated October 1991 and technical 

guidance dated November 1991. EPA published the following technical guidance documents for states to 

use in developing their Stage II program: 

a. Technical Guidance- Stage II Vapor Recovery Systems for Control of Vehicle Refueling 

Emissions at Gasoline Dispensing Facilities, Volume I: Chapters (EPA-450/3-91-022a). 

b. Technical Guidance- Stage II Vapor Recovery Systems for Control ofVehicle Refueling 

Emissions at Gasoline Dispensing Facilities, Volume II: Appendices (EPA-450/3-91-022b). 

A Stage II vapor recovery SIP was first approved in Texas on October 16, 1992, and later revised on 

November 10, 1993. These SIP revisions satisfied requirements outlined in the aforementioned EPA 

guidance documents. 

The original Stage II vapor recovery rules relied upon the California Air Resources Board (CARB) 

certification procedures for vapor recovery equipment. The CARB is currently implementing an 

enhanced vapor recovery (EVR) program with a completion date of April2003, after which they will no 

longer certify non-EVR systems. In response, the current SIP revision enacts a requirement for more 

frequent testing of vapor recovery systems at gasoline dispensing facilities as well as a phase-in schedule 

to retrofit and/or install ORVR compatible Stage II vapor recovery systems, in lieu of the CARB EVR 

program. 

When unannounced investigations are performed, the proper operation and maintenance of Stage II vapor 

recovery has demonstrated an in-use efficiency of approximately 84% for the 10,000 gallon/month 

exemption level ofthe commission's Stage II rules. Therefore, these controls are expected to result in 

1-1 
significant reductions in VOC emissions from gasoline refueling facilities, as well as reduced public 

exposure to known human carcinogens such as benzene and other toxic emissions. Estimates of actual 

emission reductions are included in the Rate-of-Progress SIP adopted on November 10, 1993 and the 

updated Rate-of-Progress SIP adopted on July 24, 1996. 

1.2 PUBLIC HEARING INFORMATION 

The commission held a public hearing at the following time and location: 

CITY DATE TIME LOCATION 

Austin August 8, 2002 2:00p.m. Building F, Room 2210 

12100 Park 35 Circle 

Written comments were also accepted via mail and fax through August 12, 2002. 

1.3 SOCIAL AND ECONOMIC CONSIDERATIONS 

For a detailed explanation of the social and economic issues involved please refer to the preamble that 

precedes the rule package accompanying this SIP. 

1.4 FISCAL AND HUMAN RESOURCES 

The state has determined that its fiscal and human resources are adequate and will not be adversely 

affected through implementation ofthis plan. 

1-2 
CHAPTER 2: APPLICABILITY 

EPA guidelines require applicability to be determined by calculating the average monthly volume of 

gasoline dispensed at a facility over the two-year period prior to the state's adoption of Stage II 

requirements. In the event a facility has been inactive for any period during the proposed calculation 

period, the state shall extend the period to include two full years of data. 

For improved enforceability, the commission has opted to determine the monthly throughput based upon 

the maximum monthly gasoline throughput for any calendar month after January 1, 1991. The 

commission shall determine as accurately as possible which facilities must comply with Stage II program 

requirements. When needed, the commission will coordinate with other state agencies involved in 

regulating refueling facilities to ensure an accurate identification of all such facilities. Next, the 

commission shall develop and maintain a computerized database to track facilities in the regulated 

community. Finally, the commission shall establish a method for ensuring that facilities, which were 

initially exempt from these regulations due to low throughput, are in compliance with Stage II 

requirements at such time that their gasoline throughput exceeds the exemption level specified in 

§ 115.24 7, based upon either facility investigations or emissions inventory data. 

2-1 
CHAPTER 3: CERTIFICATION OF APPROVED VAPOR RECOVERY SYSTEMS 

The EPA requires that all Stage II vapor recovery systems be capable of achieving at least 95 percent 

vapor control efficiency. The commission believes that verification of proper operation of Stage II 

equipment every twelve months (rather than five years) will increase the actual in-use efficiency of vapor 

recovery systems and better ensure a vapor recovery rate of95 percent. Furthermore, the state will 

continue to ensure that each system is tested for proper installation. The commission will not approve 

vapor recovery systems which include remote vapor check valves in balance systems. In addition, all 

balance vapor recovery systems must include coaxial hoses. The commission will only approve original 

equipment manufacturer (OEM) rebuilt nozzles, and all existing dispenser pumps shall be retrofit with 

OEM parts or agency approved, third-party certified non-OEM aftermarket parts. Only Stage II vapor 

recovery systems that are onboard refueling vapor recovery (ORVR) compatible will be approved for 

Stage II vapor recovery systems installed after April 1, 2004 and all existing Stage II vapor recovery 

systems must be ORVR compatible no later than Aprill, 2007. 

3-1 
CHAPTER 4: TRAINING 

EPA guidelines require the state to provide or approve training for Stage II investigators and at least one 

owner/operator from each facility. Investigator training must be effective in presenting all Stage II 

requirements and procedures. As needed, periodic updates to the training will be provided in order to 

reflect all technological and programmatic changes. The training program for investigators shall consist 

of classroom and practical training and shall include information on the purpose and effects of Stage II, 

the types of Stage II systems, acceptable components, methods for identifying system configurations, and 

how to identify failures. A written and practical test to verify proficiency will be required for 

investigators. Each investigator must meet a minimum standard of proficiency on each test in order to 

successfully complete the training course. 

Owner/operator training must provide instruction on the proper operation and maintenance of Stage II 

equipment. Literature and equipment necessary to facilitate training will be provided by an approved 

training provider. As needed, periodic updates to the training will be provided in order to reflect all 

technological and programmatic changes. At least one owner/operator from each regulated facility shall 

be required to successfully complete a training course. 

An approved training course will include the following elements in all training programs offered to 

facility owners/ operators: 

1) federal and state Stage I and Stage II statutes, regulations (including enforcement 

consequences of noncompliance), and vapor recovery health effects and benefits; 

2) equipment operation and function of each type of vapor recovery system; 

3) general overview of maintenance schedules and requirements for Stage II vapor 

recovery equipment; 

4) general overview of structure and content of CARB Executive Orders and approved 

third-party certifications; and 

5) recordkeeping and investigation requirements for Stage I and Stage II vapor recovery 

systems. 

4-1 
CHAPTER 5: PUBLIC INFORMATION 

The commission shall develop and provide information to regulated facilities stating the general purpose 

and benefit of the Stage II vapor recovery program; specific program requirements; enforcement 

consequences of noncompliance; and information about the commission, such as office address (regional 

and headquarters) and phone numbers. 

The commission shall establish public awareness information for general distribution to the public stating 

the purposes and benefits of the Stage II program, including those benefits to human health, the 

environment, and safety. The information shall include a basic description of how the vapor recovery 

system functions, operational procedures for refueling, and information about the commission, such as 

office address (regional and headquarters), phone numbers, and any other information that will facilitate 

the public's comments, questions, or complaints about the program or a particular facility. 

5-l 
CHAPTER 6: FACILITY RECORDKEEPING 

The commission shall provide guidance to facilities regarding all recordkeeping requirements. All 

facilities will be required to maintain Stage II vapor recovery records for the purpose of verifying 

compliance. The commission will review each facility's records to ensure that all initial and annual 

testing was successfully completed and that all maintenance, investigation, and training records are 

properly documented and available for review. The presence of applicable vapor recovery system 

certification documentation (CARB Executive Order or approved third-party certification) will also be 

ensured. The commission will develop examples of the necessary forms each facility owner or operator 

will need in order to comply with all recordkeeping requirements. 

6-1 
CHAPTER 7: TCEQRECORDKEEPING 

The commission shall maintain a general station file (compliance file) denoting the facility name, 

address, phone number, owner/operator names, a commission assigned account number, system 

installation date, and other relevant information. In the case of facilities which are exempt, monthly 

gasoline throughput records shall also be kept. The commission shall maintain a file on all station 

investigations by assigned account number. In compliance with EPA guidelines, the reports will be filed 

in each facility's compliance file in chronological order and will include the date of investigation; the 

investigator's name, identification number, and signature; findings at investigation; follow-up action to be 

performed; and a notation of violations. Documentation of all enforcement action taken against each 

facility will be maintained in the commission compliance file for each facility. The compliance files may 

be kept electronically. All station records maintained by the commission shall be made available to the 

public upon request. 

7-1 
CHAPTER 8: EQUIPMENT INSTALLATION AND TESTING 

Each facility must install equipment that meets all Stage II and other related regulations. The 

commission shall verify that each facility complies with these regulations: 

a. Functional testing shall be performed at the facility's expense. 

b. The owner or operator shall successfully complete all tests required to determine compliance 

upon initial system startup and every twelve months thereafter. System testing will also be required 

following major system replacement or modification. All tests shall be conducted according to the 

applicable portions of The Texas Commission on Environmental Quality Vapor Recovery Test 

Procedures Handbook. Any new, alternative, or equivalent testing methods and procedures, not approved 

by CARB, which are developed or approved by the commission shall be submitted to EPA for approval 

in the SIP or other EPA concurrence procedure. 

c. The owner or operator required to conduct test(s) on the system or system components shall 

notify the commission in writing at least ten working days in advance of the test of when, where, by 

whom, and which tests will be conducted. The owner or operator shall submit the results of the test(s) to 

the commission within ten working days of completion of the tests. 

d. The commission shall allow only OEM parts or CARE-certified or agency approved thirdparty certified non-OEM aftermarket parts to be used as replacement parts. 

8-1 
CHAPTER 9: TCEQ INVESTIGATIONS 

The commission shall perform on-site investigations in conjunction with an annual system test at each 

regulated facility at least once in every five year period. At such time, the commission shall verify that 

all equipment meets configuration requirements and that the system operates within parameters 

established during certification. Based on data gathered during a pilot program conducted in the 

Houston-Galveston and Dallas-Fort Worth non-attainment regions and summarized in a final report dated 

October 30, 2001, it is evident that investigations conducted in conjunction with a vapor recovery system 

testing event better enable investigators to evaluate the performance of each individual system. 

In addition, routine investigations of record-keeping and above-ground equipment shall also be 

conducted at between five and twenty-five percent of all facilities each year. These unannounced, 

routine investigations will serve to maintain the element of surprise and to provide a mechanism for 

investigating citizen complaints. During an investigation, the commission investigator, at a minimum, 

shall: 

a. verify compliance with all Stage I equipment requirements regarding control of vapors from 

the filling of storage tanks at motor vehicle refueling facilities; 

b. observe the use of the equipment by either the facility operator or the general public; 

c. inspect facility files to ensure they comply with all recordkeeping requirements; and 

d. review the required results of testing conducted on the vapor recovery system. 

If a nonclerical violation is detected at any facility, the commission shall conduct a follow-up 

investigation as needed. 

9-1 
CHAPTER 10: PROGRAM PENALTIES 

The commission shall establish a penalty schedule, as required by EPA, designed to deter 

noncompliance. Violations of these regulations may result in administrative penalties of up to $10,000 

per day per violation and civil penalties of up to $25,000 per day per violation. The commission shall: 

a. issue a notice of violation to the owner/operator of a refueling facility upon confirmation of a 

violation of any rule related to Stage I or II vapor recovery. A follow-up investigation shall be conducted 

as necessary; 

b. prohibit the continued dispensing of fuel, if the violation is equipment related, until such time 

any violation is corrected and the commission notified of the correction; 

c. not consider any equipment clearly tagged by the owner/ operator as out-of-order as a 

violation; and 

d. have the authority to label any noncompliant equipment as "out of order" until necessary 

repairs are made. 

10-1 
WRITTEN AND 

ORAL TESTIMONY 
Reference Number 

W-1 

W-2 

W-3 

W-4 

W-5 

W-6 

W-7 

W-8 

W-9 

W-10 

W-11 

INDEX OF WRITTEN TESTIMONY 

Submitted By 

Dennis McAdams, B & B Testing, Inc. 

R. C. Patyrak, Industry Council on the Environment 

Jim O'Kelly, Oncor (formerly TXU Electric & Gas) 

Sam DaMommio, Rice Christ Incorporated 

Patrick J. Larkin, Strasburger & Price, LLP, on behalf of 

7-Eleven, Inc. 

Brandt Mannchen, Sierra Club, Houston Regional Group 

Marc V. Buffkin, Tanknology 

Thomas H. Diggs, United States Environmental Protection 

Agency 

William H. Guarniere, UST Services, Inc. 

John B. Willrodt, Valero Energy Corporation 

Lorenzo Sen Yung 
P.O. Box 340 B Testing, Inc. Spring, Texas 77383-0340 

' 1 

August 9, 2002 

Ms. Lola Brown, MC205 

Office of Environmental Policy, Analysis and Assessment 

Texas Natural Resource Conservation Commission 

P. 0. Box 1308.7 

Austin, TX 78.711-308.7 

RE: Rule Log Number2002-012-115-AI 

Dear Ms. Brown, 

We have been in the testing industry since 198.6 and have seen the industry make major 

improvements. This is due in part to the increased certification in all areas of the field. Stage II is the 

only testing that we can perform without a certification. When you consider health concerns, this test is 

just as important as tank, line, cathodic protection and any other testing that may be performed at a 

gasoline facility. · 

During our review of Stage II records at various independent locations in the state, we have noticed 

quite frequently that some of the paper work seems to be improperly submitted and/or completed. 

We feel that required certification of Stage II technicians would be a definite asset, not only to the 

TNRCC, but to the companies requiring Stage II testing. Both parties would be assured that the testing 

companies had spent the time and effort necessary to train their technicians completely and properly. 

The training and certification would definitely reduce the potential for error. 

We believe that a mandated certification of Stage II technicians achieved through independent 

training of technicians in conjunction with a standard state test would be a major step forward for all 

parties involved. 

Should you have any questions concerning this area of testing, please feel free to contact me 

personally. 

Sincerely, 

fo/;;Y't 

Tom Bailey, President 

8 & 8 Testing, Inc. 

281-355-1090 Phone 

BANDBTEST@aol.com 

Dennis McAdams, 

Director of Testing Operations 

281-355-1174 Fax 

http://bandb.websiteQalaxy.com 

8 
AUG-l219-20l;2 15: 56 

Ms. Lola Brown 

MC205 

HL&P ENVIRONMENTAL 

Texas Natural Resomce Conservation Commission 

Office of Environmental Policy, Analysis and Asses.~ment 

P.O. Box 13087 

Austin, Texas 78711-3087 

(512) 239-4808 Fax 

RE: Rule Log Numberl002-01:2-115-Al. 

713 945 7426 

One American Center 

600 Congress Avenue, 22IICI Floor 

Au.stio, Texas 78701 

www.ice-texas.org 

August 9, 2002 

30 TAC 115.221 -Filling of Gasoline Storage Vessels (Stage I) for Motor Vehicle Fuel 

Dispensing Facilities 30 TAC 1115.240 •115.249- Control of Vehicle Refueling Emissions 

(Stage II) at Motor Vehicle Fuel Dispensing Facilities 

Dear Ms. Brown: 

Industry Council on the Environment is an orgHnizaLion comprisr::d of members lha.t own and operate 

fueling facilities located in the state of Texas and companies that provide supporting services. Oor 

members own and operate both retail and industrial facilities. The mission of our organization is ''To be an 

active pa.rmer wit11 government and industry, promoting the development of reasonable environmental 

policy". 

In general, we believe that the proposed changes to the regulations will accomplish the objectives set forth 

in the preamble and will assist the owners and operators of fueling facilities achieve and maintain the 9S% 

efficiency of the Stage I and Stage II vapor recovery systems installed in the state of Texas. 

Our comments presented below are the result of our careful review of the roles with the perspective of our 

members. 

30 TAC 115.245 (4\- All required tests shall he conducted either in tbe presence of a Texas 

Commission oo Environmental Quality or a loc:d pro ~am inspector with jurisdiction, or by a 

person who Is registered wltb tbe executive director to conduct Stage 11 vapor recovery tests. 

This language was part of the previous rule but was not implemented. 

One of the critical building blocks of achieving the goals outlined in 30 TAC 115 is to assure that the 

testing that is performed at each site is done to the specifications outlined in the State of Texas Vapor 

R.ecovery Test Procedures Handbook. The processes outlined in the Handbook; involve the application of a 

complex set of concepts, procedures and equipment. To be proficient in the testing processes and nuances 

requires a significant amounL of !raining and expr.:riencc. 

We fully support the requirement that testing companies and testers should be .registered with the agency 

and required to pass a proficiency examination. Requiring this proficiency of the testing companies and 

l.c:s!crs will dramatically improve the accuracy and effectiveness of the testing that is being performed and 

will provide the facility owner with a list of companies that are proficient to perform the testing services. 

In a poll of testing companies, we found that most testing companies would welcome implementation of 

this rule. 

Mission Statement: 

"Tu be an active Parlner with ~;ovemment and indu3rry, encouraging development of reasonable polio/ .for a cleaner 

environment. " 

P.l212/l215 

G 
RUG-09-2002 15:55 HL&P ENVIRONMENTRL 

Ms. Lola Brown -Page 2 

713 945 7426 

One American Center 

600 Congress Avenue, 22acl Floor 

Austin, Texas 78701 

www .ice-texns.org 

August 9, 2002 

30 TAC .115.245 (Sb The owner or operator, or his or her representative, shall submit the results of 

:a.U rests required by this section to the appropriate regional office and any local air pollution control 

program with jurilidiction within ten working days of the completion of tbe test..<i using the format 

specified in tbe handbook 

We support this requirement, howevc=r, the agency should, in our opinion, examine the test results 

submitted to assure compliance with the regulations and create a database of the test results thtl.l. is 

reconciled monthly. This process could be used to identify facilities that either have not submitted the 

results or have not perfom1ed the testing activity. Perfomling the reconciliation would improve the 

efficiency of the agency ~1'ections, improve compliance among facility owners and ultimately improve 

the air quality. 

30 T AC 115.246 (7)(A) - 1'he.'le records sbaU be kept on-site at facilities ordinarily manned during 

business hours, and made immediately available for review unon request by authorized 

representatives of the e"ecuttve director. 

It is our opinion that the daily and monthly inspection reports, the maintenance logs, the executive orders 

and the operator training certificate{s) shou1d be maintained at the facility. We believe lhat the agency's 

recordkcc::ping requirements are UIUlecessarily burdensone and that the agency should consider following 

the ~cord keeping requirements outlined in 30 TAC 334 for the Stage II test reports to provide consistency. 

Currently, copies of the Stage li test reports may be maintained in as many as three locations depending on 

corporate structure: The agency, the corporate facility and the site location. If the rules for Stage n testing 

were consistent with the rules tor tank and line testing, the company would have 48 hours to produce the 

test results to the agency or the agency could review its own files before perfonning the site inspections. 

Further, the agency guidelines specify automatic enforcement after three: simiJar violations within a fiveyear period. This requirement will result in recordkeeping violations, nol compliance to the regulations 

violations, and could easily become the largest enforcement issue tmd result in a significant agency 

Vresource niquiremcnt that will detract from the effort oflocating and bringing into compliance noncompliant facilities. 

30 TAC 115.249 (c) (l) & (2)- All vacuum assist Srae:e II vapgr recovery systems must be onboard 

refueHng vapor recovery (ORVR) com_patlble according to the following sehedules (1) all insts.Uations 

gf vacuum assist Stage 11 vapor recoverv wrrtems installed on or after April ], 2004, must be ORVR 

compatible; and (2) all vacuum assist Stage II vapor recovea;y systems Installed before April I. 2004, 

must be upgraded to an ORV:R comoatib1e system no later tban AprO 1. 2007, 

The cost estimates for OR VR. explained in the '"Background and Summary of the Factual Basis for the 

Proposed Rules" states that upgrades to ORVR ~:~n: expected to cost $1, J 00 per dispc::nscr. This results in an 

average facility cost of $6,600 IISSuming 6 dispensers. The report docs not indicate which technology would 

be used. Our members have investigated optioru; to meet the O.RVR requirement. There arc two 

technologies . currently under investigation by suppliers. The fust is ''nozzle sensor .. technology which 

senses whether the vehicle hns ORVR and stops or slows the dispenser vapor motors. This technology if 

approved for use appears to be within this price range. The second alternative is "membrane technology" 

which involves the use of a vapor processor. The price :rnngc:: for this technology is approximately $25,000 

for the processor and installation, 

Mission Sta~ment: 

"To be an active Partner with government and industry, encouraging development of reasonable policy for a clean11r 

environment.'' 

P.03/05 
AUG-09-2002 15:57 HL&P ENVIRONMENTAL 

Ms. Lola Brown- Page 3 

713 945 7426 

One American Center 

600 Congress Avenue, :zznd Floor 

Austin, Texas 78701 

www.lce-texas.org 

August 9, 2002 

Currently, there are no approved ORVR methods to gauge the potential of nozzle technology vs. membrane 

technology. Tt would appear llu!t CARB will be involved in testing these technologies. CARB is on record 

that they will test ORVR. technology if the resources to do so are available. With the heavy testing load 

expected for EVR in California, it is possible that the only technology that will be available in 2007 will be 

the membrane technology. 

30 TAC 11 S.24S ·Testing Reguiremebts 

30 TAC 115.245 (2)- Verification of proper operation ofthe Staee II equipment shall be performed 

in accordabce with the test procedures referenced in paragraph (1) of this section at least every 

twelve months or upon major system replacement of modification. whichever occurs first. The 

verifiCation shall include all functional tests that were reguired for the initial system test. 

We are pleased that a new State of Texas Vapor Recovezy Test Procedures Handbook has been developed. 

The documentation is more precise than Lhe earlier version and should make it easier for testing companies 

and operators to maintain system functionality. 

The new specifications require a "full system test" each year. The testing costs under the new rules will 

approxi.mately double for each facility owner on an annual basis. The previous rule.c; based on CARB 

specifications required that this test be performed every 5 years. While we agree that nozzle tests should be 

perfonned during each testing cycle which was not the case under the old rules, we believe that requiring 

blockage tests on the vents and the Stage 11 vapor retwn lines should be reconsidered. 

Stage ll vapor return lines and vents are prescribed to slope .25" per foot toward the tank to avoid liquid 

blockage in the line. If either the Stage IT return line or the vents become liquid blocked the vapor system 

opcmlion is impaired. 

The "pressure decay" test is performed before the blockage tests to assure that the system is ''tight" so that 

when testing the vapor return lines and the vents, product is not introduced into the backfill area. 

To perform the Stage II return line testing as described in the Handbook, the vapor lines under each 

dispenser in most facilities will have to be opened in order to introduce the fuel into the line lo pc::rfonn the 

blockage test. There are no further tests prescnocd to insure: lhe integrity of the system after the blockage 

test is performed. Our concern is lhat the ports under the dispensers that have been opened for the blockage 

testing will not be closed properly and the vapor releases into lhe dispenser cavity at the fueling point as a 

result of this testing will go undetected until the next testing cycle. This is also true of the reattachment of 

the vent cap that must be removed to perform the vent blockage test. 

Two tests that are prescribed in the Handbook are designed to identify the blockages without performing 

the blockage tests: the vent cracking test which is performed as part of the pressure decay test and the VfL 

or AIL test.~ for the nozzles. It is our opinion that a blocked vent will be detected when the vent cracking 

test is performed and that a blocked vapor return line will be detected when the V /L or AIL tests are 

performed on the nozzles. We recommend that the vent blockage and Stage n return line blockage tests be 

pertonned less frequently perhaps on a three or five year cycle unless there is a failure when performing the 

vent em eking test or the V fL or NL nozzle tests. 

Making this change in the rules wo1.1ld reduce the annual testing cost.<; to the facility owner and in our 

opinion achieve better results (because of reduced possibility of unidenti11ed loose connections) than the 

rule as proposed. 

Mission StaleJmeJnl: 

"To be an active Parmer with government and industry, enr:oura~;:ing rl!!Velupmflnr of reasonable policy for a cleaner 

environment. " 

P.04/05 
AUG-09-2002 15:57 HL&P ENVIRONMENTAL 

Ms. Lola Brown- Page:: 4 

Compliance Enforcement 

713 945 7426 

One American Center 

600 Congress A't'enue, 22Dd Floor 

Austin, Texas 78701 

wwwJce-texas.ocg 

Au~st 9, 2002 

If the agency requires a full compliance test at each site on an annual basis, current testing costs will double 

at each facility for four out of every five years. This amounts to an additional $2 to $3 million dollam over 

the four year period. We are concerned. that the Test Observation program which involves extensive agency 

resources to observe the testing at each facility will hamper the agency's abUlty to maintain the cunen1 

compliance level at the same time the cost of the testing service is doubled. Currently, the City ofHoloi.Ston 

is charged wilh inspecting all sites annually within their jurisdiction. Under the Test Observation program, 

the agency and the city would inspect only 20% to 25% oflhe facilities. The majority of tho facilities being 

observed are attempting to comply with the regulations or they would nor be teSting. The increased cost of 

testing couplc:d wilh a n;duction in the enforcement inspection activity wiU, in our opinion, significantly 

reduce compliane¢ by facility owners and operators and result in more vapor emissions. 

lt appears to us that a more effective alternative approach is available to the agency that would achieve both 

the inspection and observation objectives: 

The agency could rc-tcsl 3.5% ofl.he sites to lll!surc thaL they were tested properly. This sample, which in 

our opinion, would be statisticaUy significanL relative to the Stage II population could be selected by 

identifying the testing companies involved and randomly selecting 3.5% of the locations lhat have aln::ady 

been tested and rete.'lting them to assure compliance. This could be done with agency personnel or by using 

identified qualified testing companies. Assuming; that the average time required to observe a test requires 

2.5 hours on site and lhe Lolal site:: populKtion is 2500 sites, this would free up a minimum of 6,031 man 

hours (3 man years) plus the associated pape.rwork and travel time and would, in our opinion accomplish 

the same result It should be noted that the re-test objective would be to assure that the system was light 

(not leaking hydrocarbons to atmosphere) and that the nozzles are drawing appropriate vacuum. 

The agency re-test procedures would not have to be invasive. All thal would be necessary would be to 

perform a quick pressure decay or attach a gauge to the Stage 1 adapter to determine if the vapor syst.c:m is 

tight .:md perfonn random nozzle test~. If the Vacu-Chek device were used for testing the nozzles, lhe retest could be completed in less than 30 minutes per site. This approach would provide the agency additional 

resources !0 perform signiticant1y more facility inspections and improve compliance within the Stage II 

population and the testing community. It would also provide the agency with d11La to support lhcsc new 

regulations and the SIP projections. 

We appreciate the opportunity to commenl on these proposed rules. Should you have any questions, please 

feel free to contact Mr. Bill Guamiere at 713-467-4'244. 

c. ICE Board Members 

Steve Morton- Jenkins & Gilchrist 

R. C. Patynlk, P. E. 

Chainnan 

Indusliy Council on the Environment 

Mifsion Statement: 

"T u be an active Partner with government and indwtr)J. encouraging development of rea.fonable policy fol' a cleane,. 

environment. " 

P.0S/0S 

Tn"'rr.a n nr-
Jim O'Kelly 

Environmental 

r::;\ 

;-

Oncor ~ .-···· 

August 8, 2002 

Lola Brown 

Office of Environmental Policy, Analysis, and Assessment 

MC205 

Texas Natural Resource Conservation Commission 

P.O. Box 13087 

Austin, TX 78711-3087 

Dear Ms. Brown: 

Environment Health & Safety 

500 N. Akard 

11-260 

Dallas, TX 75201 

Tel 214-486-6080 

Fax 214-486-4399 

jokelly1@oncorgroup.com 

Oncor, formerly TXU Electric & Gas, is submitting comments on Rule Log Number 2002-012-115-

AI specifically Subchapter C, Division 4, Stage ll Vapor Recovery. 

The section by section discussion states "The proposed amendments would require testing every 12 

months and cost station owners and operators $550 each year, with the pressure decay test included 

in the $550." This language establishes and by inference sets the price at $550 per year for the full 

system test including the pressure decay test. 

Oncor suggests the sentence be changed to read as follows: "The proposed amendments would 

require testing every 12 months and cost station owners and operators an average of $550 each year, 

with the pressure decay test included in the cost." 

This additional language does not establish a set price as initially inferred. However, since Oncor 

annually pays $400 for a pressure decay test and in 1999 paid $600 for the full system test including 

the pressure decay ($300 and $500 are referenced in the discussion). In establishing a set price, 

such as the referenced $550 for the proposed testing, some owner/operators could experience a cost 

savings instead of a cost increase. 

Please contact me if you have any questions at 214-486-6080. 

Jim O'Kelly 
OS/07/02 09:02 FAX 972 660 7344 RICE CHRIST INC 

TO: 

RCI 

/ 

.. 

Rit:e Christ 

lnt~orporated 

FROM: fi Sam DaMommio tf:l' Tetty Christ 

Year2002 

DATE: 

TOTAL NO. <)F PAGES INCLUDING COVER: 

3 

D URGENT 0 PLEASE COMMENT D PLEASE REPLy 

1504 1 09th Street - Grand Praj.rie, TX 7 5050 

Voice (972) 660-6040 - &xj972) 660-7344 

Sam DaMommio's Mobile M(817) .166-1.1.19 

Terry Christ's Mobile M(2.14) 697-20.12 

www .rice-christ. com 

~001 
REF: Rule Log Number 2002~012-115-AI 

Ms. Lola Brown 

MC 205 office Of Environmental Policy, Analysis and Assessment 

TNRCC 

P.O. Box13087 

Austin, Texas 78711-3087 

Comments on proposed rule, 2 parts: 

As a citizen living in the Dallas area it is obvious that the need to clean up the air is great, 

you need only drive into Dallas from the south on any summer day to see the pollution 

cloud hanging over the City. As I live between Dallas/ Ft. Worth I can attest to the 

increased breathing problems due to same. 

Add to this observation is the increased breathing problems, ozone alert days etc. 

While I do not know the specific percentage of the problem affected by the VOC, 

hydrocarbon saturated air that would be stopped from entering the air, covered in this 

rule; from several independent studies it is a heavy impact. There is in fact some evidence 

that MTBE has entered the lakes from" Fugitive Emissions". Please let me explain what 

happens- When a person fills their vehicle that has an onboard canister (ORVR) excess 

saturated vapors can be emitted out the vent of the underground tank- WHY, because the 

onboard canister has already re-cycled the vapors inside the vehicle tank, therefore the 

fueling system that DOES NOT recognize there was an onboard canister will then pull 

into the tank CLEAN AIR. 

What happens then is a law of physics; the clean air becomes saturated with gasoline 

vapors (grows about 30%). As all these fueling systems are closed systems with a vent 

for release of excess pressure, the excess buildup is then released into the air, with its 

fuel/hydrocarbon content. 

Summary is for every 10,000 gallons of fuel dispensed in a location where ALL the 

vehicles have the on board canister the loss is about 20 gallons of fuel out the vent in the 

form of vapors. Not only is this an impact on our AIR QUALITY, but also on the 

pocketbook of the fueling facility owner. -Example a facility selling 150,000 gallons a 

month (there are many much higher) would loose 300 gallons a month, if ONLY 50% of 

the vehicles were ORVR then they would loose 150 gallons a month X $1.40 ave cost per 

gallon= $ 210.00 per month loss x 12 = $2,520.00 per year. Also this situation gets 

worse as more new vehicles are on the road with ORVR. 

Note: should support data be needed, can be provided, or the" Web" has much 

information 
The second part, is I am involved with the equipment (One of the Stage II Manufacturer, 

Healy) therefore I am aware of the above information. 

There is a part of the proposed rules I want to clear up, if needed, that is page nine (9) as 

to cost. 

There are 2 assist systems tested and passed, two more are in test now, along with the 

balanced system CARB has passed for ORVR. I am not sure which system was quoted as 

to the cost example; therefore let me give the ACTUAL 2002 cost to convert a dispenser 

to ORVR compatible with HEALY. 

New Dispenser, Blender- 2 hose ................... $ 2,770.00 Book/List price 

New 6 hose Dispenser, all new ..................... $3,639.00 Book 

Upgrade from existing HEALY SYSTEM 600 (that has been maintained) 

New Dispenser, Blender- 2 hose .................... $1759.00 Book 

New 6 hose Dispenser, ............................... $3159.00 Book 

I use the full List price, be aware many owner buy multiple location therefore this is more 

than what they may pay ..... The only non shown part is the Vent Valve, $85.00 per site, 

and cost to install which averages$ 275.00 Per dispenser. 

Note: The HEALY 400 systems (oldest system in the field in Texas) is for all practical 

purposes ALREADY ORVR Compatible, as the 400 ORVR nozzle is all that has been 

shipped for about 2 years. Should a site have the 400 system and any of the Nozzles are 

NOT ORVE, they may send in for re-build and the ORVR capability will be added at no 

cost. 

There are hundreds of the HEALY 800 ORVR systems installed and in operation now in 

our State, working properly, reducing outgassing, etc. etc. 

In summary, I am in favor of the rule change for personal and of course business reasons; 

I feel there will be at least 5 approved systems in the near future, perhaps more. 

The actual cost to the owners has a return built in, saving of fuel- unlike a total expense. 

As an example that location doing 150,000 gallons peer month just about pays for the 

upgrade in a year PER DISPENSER. Return On Investment estimated on a 4 dispenser 

location would be 5 years or less. 

Plus we keep the excess hydrocarbons out of the air we breathe. 

Sam DaMommio Home 817-467-7869, work 972 660-6040 
08/12/2002 14:43 FAX 

August 12, 2002 

VIA FACSIMILE: (512) 239-4808 

Ms. Lola Brown 

Texas Natural Resource Conservation Commission 

Office of Environmental Policy, Analysis and Assessment 

MC205 

P.O. Box 13087 

Austin, Texas 78711-3087 

RE: Rule Log No. 2002·012·115-AI 

Dear Ms. Brown: 

PATRICK J. LARKIN 

214.651.2132 

Direct Fax: 214.859.4075 

patricll.larkln@strasburger.com 

@002 

This letter and Attachment A hereto are submitted on behalf of 7-Eieven, Inc. as its 

comments to the Texas Natural Resource Conservation Commission's proposed revisions 

to 30 Texas Administrative Code Chapter 115 regarding Stage II Vapor Recovery 

regulations. 7-Eieven, Inc. is pleased to provide these comments regarding the agency's 

proposal. 

Please contact the undersigned if you have any questions regarding these comments or 

if we can be of further assistance to the agency. 

Respectfully Submitted, 

a nck J. arkin 

PJUkmg 

Enclosures 

cc: Mr. Ken Hilliard, 7-ELEVEN, INC. 

758B78.1/SP~13773/0101/0B122002 

Strasburger 6 Price, LLP 

'JOll.laln Srreet, S\Jite 4300 • Uollas, Tt:X.QS 75202.319~ • ?H.651.4300 tel • ?.H.6S1.433U fax • www.strasburgc>r.c:or11 

r\u>nn • Dallas • Huudon • SIJn Antonio • Washington D.C. • t.lexlcn (ll;y • 
08/12/2002 14:43 FAX ltJ 003 

ATTACHMENT A 

7-Eieven, Inc. Comments to Proposed Revisions to 

30 Texas Administrative Code Sections 115.240 - 115.249 

A. Comments to Section 115.245(4): Competence of Stage II System Testers: SelfRegistration v. Proof of Successful Completion of Approved Training . 

Section 115.245( 4) should be revised to require Stage ll Vapor Recovery System Testers 

to demonstrate competence in system testing as a prerequisite to registration with the TNllCC 

as a Stage ll tester. 

1NRCC's stated purpose for modifying the Stage II Vapor Recovery (VRII) rules-to enhance vapor 

recovery efficiency ofVRII systems - is based on the prembe that improvements in the competence 

of persons involved in system testing, maintenance and repair will result in VOC capture efficiency 

equal to or in excess of the CARB Enhanced Vapor Recovery proposals. 

The annual system testing proposed in revisions to Section 115.245 will significantly increase the ·· 

number of system tests performed annually, and thus, attract many new system testing companies and 

testing personnel to the Texas market. However, unless a credible, enforceable system is created to 

eDBUre VRII System Tester competence, ''fly-by-night''testercompaniesmay simply self-register with 

little or no testing competence, and only upgrade their skills after being repeatedly caught performing 

system tests incorrectly and faced with imminent de-registration, Thus, 1NRCC's efforts to increase 

VRII system efficiency through improved test and :repair quality will only reach the alreadycompetent, responsible professionals in the VRli testing industry. 

1NRCC staff has indicated strong support for a credible tester certification program, but stated that 

due to resource constraints, only small steps can be made toward establishing such a program. 

7-Eleven strongly believes that TNRCC has either underestimated the importance of tester 

competence or bas overestimated the resources needed to implement a program to document the 

competence ofVRII system testers. The basic infrastructure and resources required to implement the 

certification of VRII system testers is already present in the Facility Representative training 

requirements of Section 115.248. That section requires that a VRII facility representative have 

completed a TNRCC-approved training program. Thus, TNRCC already has in place a system for 

revie\Ving and approving VRII-related training curriculum. Likewise, numerous TNRCC-approved 

VRII training companies currently exist. and many of these companies already provide voluntary 

VRII system tester training. The only additional resources needed would be the incremental 

personnel to review VRil System tester curriculum and to monitor training courses to ensure trainer 

quality and integrity. 

75688<~, 1/Sl'Zillm/OIOl/0812%002 
08/12/2002 14:43 FAX 141004 

Recommend: Revise the first sentence of Section 115.245(4) as follows: 

"( 4) All required tests shall be conducted ... by a person who has registered with the Executive 

Director to conduct Stage II vapor recovery tests. Registration shall be granted to individuals who 

provide the Executive Director with evidence ofhaving successfully completed a TNRCC-approved 

training course and proficiency test relating to Stage IT Vapor :recovery Test Procedures and 

Methods., 

B. Comments to Section 115.245(5). (6) and (7): Onsite Record Keeping 

Sections 115.245(5), (6) and (7) should be revised to allow owners and operators to maintain 

annual system testing records offsite, subject to the requirement tha.t copies ofthe most recent 

annual test report will be provided to the appropriate TNRCC regional office and any local 

air pollution program with jurisdiction at the same time and in the same manner as the notice 

of testing required under section 115.245(2). 

The current requirement to keep all system testing records onsite for an indefinite time period is 

unnecessarily burdensome and will be made even worse by the four-fold increase in the flow of paper 

from annual comprehensive VRII system testing. The maintenance of annual system testing records 

is particularly burdensome due to the fact that these records are typically generated offsite and mailed 

to the retail store days or weeks after the test occurs. The relative difficulty of managing records 

received from offsite is somewhat validated by the frequent inability of the 1NRCC regional personnel 

to obtain copies of system testing records that are filed with the TNRCC within ten days of their 

making. This document handling system is unavoidable under the current rules and has caused 

difficulty in proper filing, retention and ability to produce these types of records during inspections. 

In contrast, records that are generated onsite are less difficult to manage and generally are filed 

immediately and remain available for later use. 

The overall burden of record retention and maintenance, and the ability to provide TNRCC with 

relevant information could be materially improved if the now-annual system testing records could be 

kept offsite and delivered to the regional office at the time of the ten-day notification of system 

testing. 

In stakeholder meetings with TNRCC staff, the primary objection to allowing offsite retention of 

annual records was that onsite review of test records during inspections provides Field Operations 

personnel a perspective on the context of system .operation and maintenance over time. 7 -Eleven's 

proposal would not decrease the availability of these records during inspections. Rather. the proposal 

to allow offsite record retention, with delivery ·of copies with the ten day notice would provide 

inspectors this perspective on system operation ten days before arriving at the site. Offsite retention 

of system testing records would not interferf': with the quality of surprise inspections, as these records 

are not critical to in:'pections that do not involve observation oftest procedures and internal fimctions 

of the VRII system. 

7Sti884.1/S1'2113773/0 101/08122002 -2-
Nl/12/2002 14:43 FAX ~005 

C. Comments to Section 115.245(2): Annual System Testing 

7~Eleven recommends that TNRCC modify Section 115.245(2) to eliminate unnecessary and 

duplicative annual testing requirements. 

The agency has expanded the number of tests that are required each year at a Stage II Facility. In 

many cases, this involves performing blockage tests on the vents and Stage II return lines and the 

annual testing of nozzles. If the purpose of the ex.Panded testing is to assure that the Stage II system 

is operating prope:d! as opposed to being installed correctly, we question the need and the additional 

expenditures associated with the annual requirement for blockage tests on the return lines and vents 

for the following reasons: 

Vent§: 

One critical requirement of the CUil'ent annual test is that the vent cap release when between 

2.5 to 3.0 inches ofwater column is applied to the tank system as part of the pressure decay 

test.lfthe vent cap does not release, it can be the result of a defective vent cap or a blocked 

vent line or several other issues. If the vent cap is not defective, then the system fails and 

further investigation is required at the·si~e to detennine the cause of what would appear to 

be a blocked ven.t system. Ifthe site is alfeady equipped with overftll devices and under Texas 

and EPA regulations it should be, then the possibility ofbaving fuel lodged in the vent system 

is unlikely and uncommon and this pi'Qblem is only created when fuel is introduced into the 

vent system for the test. 

Staee II Return Lines: : 1 

If nozzle tests are required as part of the a:nnual test, blockages in the Stage II return piping 

will be identified because the nozzles ~~ not operate to V /L - AIL specification. If the 

nozzles do not operate to specification, th~n the nozzles fail and an investigation is required 

to establish the cause. In this case the t~sting of the Stage II Return lines may be required to 

establish the reason for the deficiency and1

corrective action would be taken if the site did not 

function properly. : 

Summary . 

The blockage testing requirement will cost facility owners approximately $150 to $200 per 

site per year to petfonn. These tests will !determine whether the site was instal.led correctly 

but not necessarily whether the site is currently operating correctly. If the site is operating 

correctly, the vent releases at the correct operating pressure and the V IL - AIL readings are 

within specification, we believe that the b~ocl,Cage test requirement other than on a 5 year test 

is in excess of what needs to be done to maintain the 95% operating efficiency requirement .. at the site. ;· 

1S63&4.l/SPlill773JOlOUOI!l22002 ~3-
08/12/2002 14:43 FAX fi!006 

' ' ~, ' :: 

~ 'I 

~ Strag$k~rger 'I I . 

D. :\ Stage I Vapor Recovery Conttols Should be Stren&f:hened to Better Control 

Releases ofVOC Durin a Fuel DbUveries; Resultinv Decreases in VOC Emissions 

Should be Used to Authorize siP Flexibility in VRll Implementation. 

At every Stage !-regulated fuel station, fuel:~elivery personnel are required to connect Stage I 

systems so as to remove vapors that have accU.mulated in the storage tank since the last fuel drop. ,, While these bulk fuel deliveries do not involve as many fueling points nor as many individual 

dispensing actions as the fueling of motor ve~cles, they do involve much larger quantities of fuel 

and vapor than the individual fueHng activiti~s. Millions of gallons of fuel are dropped each year 

and millions of gallons of vapor are either returned to fuel depots, or if not properly controlled, 

are released to the environment. 'I 

In meetings with TNRCC staff, stakeholdJs from the Stage II system testing industry have 

reported that it is not unusual, even routine~ discover UST system vapor release vent caps that 

have been dislodged or apparently tampered fitb so as to allow quick vapor release during fuel 

drops. If the damage to these vent caps is intetrticinal, the person most clearly benefitted by this 

condition is the fuel delivery personnel who~e trying to facilitate faster fuel drops. 7-Eleven 

urges 1NRCC to enact and enforce 'm?re ~~gent standards for documentation of vapor 

recovery during these deliveries and/or stan~;rrds for the measurement of vapors returned to the 

fuel depots after delivery. ;j 

•I ';i 

7-Eleven believes that the development an~ implementation of further controls on Stage I 

deliveries as well as a monitoring system to ~hec.lc the amount of vapor contained in the tanker 

upon returning to the fuel depot could si~ficaptly reduce the amount of vapor released to 

atmosphere when the fuel drops ate made at r· fueling locations. 

I' 

756884, l/SJ>2/1377J/OIOl/OlU22002 
SIERRA 

CLUB 

July 23,2002 

Ms. Kelly Keel 

MC206 

RECEIVED 

Houston Regional Group 8 

JUL 2 S /il02 P.O. Box 3021 W-6 

Houston. Texas 77253-3021 

OFF1Ct: Ur t·''····-if::.:-i\1TAL 713/895 9309 POLICY, ANALY~is'&:td.SESSMENT -

Office of Environmental Policy, Analysis, and Asse~sment 

Texas Natural Resource Conservation Commission 

P .0. Box 13087 

Austin, Texas 78711-3087 

Dear Kelly, 

Enclosed are the comments of the Houston Sierra Club (HSC) regarding proposed 

changes to Chapter 115, Rule Log Number 2002-045-115-Al and Rule Log Number 

2002-012-115-AI, and changes to Chapters 101, 106, and 116, Rule Log Number 2002-

. ·041-116-AI. 

Chapter 115 

1) The HSC opposes the change to 115.741. \Ve have submitted comments with the 

statement we made about the State Implementation Plan (SIP) on July 22, 2002, 

in Houston, Texas so we will not repeat our concerns here. We want to go on 

record as opposing the proposed flare emission rate as not being stringent enough. 

L) Regarding the proposed changes to the Stage II Vapor Recovery Program, we 

recommend that TNRCC implement the California enhanced vapor recovery 

program. By adopting the California program, TNRCC would be as 

expeditiously as practicable implementing the SIP so that attainment of the ozone 

standard in the Houston-Galveston Area (HGA) would occur as soon as possible. 

The present proposal has a compliance date of April I, 2007, for recently installed 

vacuum assisted systems. This compliance date \vill leave little time for these 

controls to begin reducing VOC levels. TNRCC and other air pollution· 

enforcement agencies v.i.ll have little time to ensure that these controls have been 

installed at gas stations. The HSC recommend November 15, 2005 as an 

alternative compliance date. 

Chapters 101, 106, and 116 

1) The HSC recommends that the fee for all PI-7 permits by rule (PBR) be 

retroactive for the year 2002. It is reasonable that TNRCC should be paid for 

work done this year due to processing ofPI-7 PBR. 

"When we try to pick out anything by itself, we find it hitched to everything else in the universe." John 1tuir 
2) The HSC supports the billing process and the requirement that a new operation 

must initiate the payment process in a specified period of time. We support an . 

increase in fees for all permits (Chapter 116), permits by rule (Chapter 1 06), and 

inspection and emission fees(Chapter 101.24 and 101.27). We do not believe 

TNRCC is doing all it can do to ensure. that fees cover all TNRCC expenses. We 

urge TNRCC to ensirre that the fees colleCted really cover all operating expenses 

of the permit program. . . 

3) Under 1 06.50(b ), we do riot agree that a PI-7 registration to establish a federally 

enforceable emissions limit should not ~ave to pay a fee. All PI-7 Form 

operations take a lot of time and resources to process and assess. All of these 

types of operations, no matter what the reason for submission, must pay a·fee to 

cover TNRCC permit expenses. · 

We appreciate this opportunity to comment. Th~ you. 

Brandt 

Sincerely, 

Mannchen 

. ~ ~ 

· Conservation Committee 

Houston Sierra Club 

5431 Carew 

Houston, Texas 77096 

H713-664-5962, \V713-640-4313 

2 
August 9, 2002 

Ms. Lola Brown 

MC205 

Texas Natural Resource Conservation Commission 

Office of Environmental Policy, Analysis and Assessment 

P.O. Box 13087 

Austin, Texas 78711-3087 

( 512) 239-4808 Fax 

RE: Rule Log Number 2002-012-115-Al. 

30 TAC 115.221 -Filling of Gasoline Storage Vessels (Stage I) for Motor Vehicle Fuel 

Dispensing Facilities 

30 TAC 1115.240- 115.249- Control of Vehicle Refueling Emissions (Stage II) at Motor 

Vehicle Fuel Dispensing Facilities 

Dear Ms. Brown: 

As a member of the Industry Council on the Environment and a testing contractor in the State of Texas the 

following is Tanknology's comments to the proposed rule change. 

Tanknology's comments presented below are the result of our careful review of the rules with the 

perspective of our members. 

30 TAC 115.245 (4)- All required tests shall he conducted either in the presence of a Texas 

Commission on Environmental Quality or a local pro gram inspector with jurisdiction, or by a 

person who is registered with the executive director to conduct Stage 11 vapor recovery tests. 

This language was part of the previous rule but was not implemented. 

One of the critical building blocks of achieving the goals outlined in 30 T AC 115 is to assure that the 

testing that is performed at each site is done to the specifications outlined in the State of Texas Vapor 

Recovery Test Procedures Handbook. The processes outlined in the Handbook involve the application of a 

complex set of concepts, procedures and equipment. To be proficient in the testing processes and nuances 

requires a significant amount of training and experience. 

G 

We fully support the requirement that testing companies and testers should be registered with the agency 

and required to pass a proficiency examination. Requiring this proficiency of the testing companies and 

testers will dramatically improve the accuracy and effectiveness of the testing that is being performed and 

will provide the facility owner with a list of companies that are proficient to perform the testing services. 

In a poll of testing companies, we found that most testing companies would welcome implementation of 

this rule. 

As a company recently charged directly for false omissions this licensing would place the burden on the 

person "performing the test" rather than the company solely. In addition, there are several county agencies 

in the State of CA that have worked together to uniform a license requirement and this has been very 

affective. 

30 TAC .115.245 (5)- The owner or operator, or his or her representative, shall submit the results of 

all tests required by this section to the appropriate regional office and any local air pollution control 

program with jurisdiction within ten working days of the completion of the tests using the format 

specified in the handbook 

We support this requirement, however, the agency should, in our opinion, examine the test results 

submitted to assure compliance with the regulations and create a database of the test resu ts that is 

reconciled monthly. This process could be used to identify facilities that either have not sub ·ued the 

results or have not performed the testing activity. Perfot&~afet00k~l~gv2fJbi rOfffiJ me: (BOO) 964-0150 

Austin, Texas 78757 

www. tankno/ogy.com 

Local: (512) 380-7220 

Fax: (512) 380-7215 
efficiency of the agency inspections, improve compliance among facility owners and ultimately improve 

the air quality. 

30 TAC 115.245- Testing Requirements 

30 TAC 115.245 (2)- Verification of proper operation of the Stage II equipment shall be performed 

in accordance with the test procedures referenced in paragraph (1) of this section at least every 

twelve months or upon major system replacement of modification, whichever occurs first. The 

verification shall include all functional tests that were required for the initial system test. 

We are pleased that a new State of Texas Vapor Recovery Test Procedures Handbook has been developed. 

The documentation is more precise than the earlier version and should make it easier for testing companies 

and operators to maintain system functionality. 

The new specifications require a "full system test" each year. The testing costs under the new rules will 

approximately double for each facility owner on an annual basis. The previous rules based on CARB 

specifications required that this test be performed every 5 years. While we agree that nozzle tests should be 

performed during each testing cycle which was not the case under the old rules, we believe that requiring 

blockage tests on the vents and the Stage II vapor return lines should be reconsidered. 

Stage II vapor return lines and vents are prescribed to slope .25" per foot toward the tank to avoid liquid 

blockage in the line. If either the Stage II return line or the vents become liquid blocked the vapor system 

operation is impaired. 

The "pressure decay" test is performed before the blockage tests to assure that the system is "tight" so that 

when testing the vapor return lines and the vents, product is not introduced into the backfill area. 

To perforn1 the Stage II return line testing as described in the Handbook, the vapor lines under each 

dispenser in most facilities will have to be opened in order to introduce the fuel into the line to perform the 

blockage test. There are no further tests prescribed to insure the integrity of the system after the blockage 

test is performed. Our concern is that the ports under the dispensers that have been opened for the blockage 

testing will not be closed properly and the vapor releases into the dispenser cavity at the fueling point as a 

result of this testing will go undetected until the next testing cycle. This is also true of the reattachment of 

the vent cap that must be removed to perform the vent blockage test. 

Two tests that are prescribed in the Handbook are designed to identify the blockages without performing 

the blockage tests: the vent cracking test which is performed as part of the pressure decay test and the V /L 

or AIL tests for the nozzles. It is our opinion that a blocked vent will be detected when the vent cracking 

test is performed and that a blocked vapor return line will be detected when the V /L or A/L tests are 

performed on the nozzles. We recommend that the vent blockage and Stage II return line blockage tests be 

performed less frequently perhaps on a three or five year cycle unless there is a failure when performing the 

vent cracking test or the V/L or AIL nozzle tests. 

Making this change in the rules would reduce the annual testing costs to the facility owner and in our 

opinion achieve better results (because of reduced possibility of unidentified loose connections) than the 

rule as proposed. 

We appreciate the opportunity to comment on these proposed rules. Should you have any questions, please 

feel free to contact me at 512-380-7220 

sm~--7'---##-----

M~ ------ Sr VP--Tanknology 

8900 Shoal Creek, Building 200 

Austin, Texas 78757 

www. tanknology. com 

Toll free: (800) 800-4633 

Local: 

Fax: 

(512) 451-6334 

(512) 459-1459 
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

REGION 6 

Ms. Lola Brown 

1445 ROSS AVENUE, SUITE 1200 

DALLAS, TX 75202-2733 

Analysis, and Assessment, MC 205 

Office of Environmental Policy 

Texas Natural Resouce Conversation 

Commission 

P.O. Box 13087 

Austin, TX 78711-3087 

Reference: Rule Log Number 2002-012-115-AI 

Dear Ms. Brown: 

JUL 31 2002 

8 

Thank you for the opportunity to comment on proposed changes to 30 TAC 115 regarding 

Control of Air Pollution from Volatile Organic Compounds, and to the State Implementation 

Plan (SIP) narrative on Stage II Vapor Recovery Program SIP revision. We have coordinated our 

comments with our Office of Air Quality Planning and Standards. We agree in principle to the 

proposed rule changes and support the proposed changes for testing requirements in § 115.245(2). 

Our specific comments regarding Stage IVORVR Compatibility and New Equipment 

Certification are enclosed. 

Region 6 continues to offer Texas our support during your rulemaking process. Please let 

us know how we may be of further assistance. 

Enclosure 

Sincerely yours, 

c~~~<( 

Thomas H. Diggs 

Chief 

Air Planning Section 

Recycled/Recyclable • Printed with Vegetable Oil Based Inks on 100% Recycled Paper (40% Postconsumer) 
Comments on TNRCC Rule Log No. 2002-012-115-AI 

Chapter 115 - Control of Air Pollution from Volatile Organic Compounds 

Stage IIIORVR Compatibility 

Some of the rule changes in 30 TAC 115 seem to be based on the supposition that service 

stations can cure the Stage IIIORVR incompatibility problem by replacing the hoses/nozzles for 

about $1,100 each. Presumably, the new nozzles have a check valve which prevents air from 

flowing back into the underground storage tank where vapor growth might occur. It would be of 

interest to the EPA and other states if Texas has technical information demonstrating that the 

nozzle/hose replacements will fix the problem. 

We have heard claims from some nozzle manufacturers that it will. We have also heard 

from manufacturers of equipment for underground storage tank vent lines that say that the 

emissions from the underground tank must be controlled by adding some sort of control device to 

the vent line. Permeable filters, carbon absorbers, or afterburners are proven technologies for 

mitigating vent line emissions. The EPA has not determined what the most effective (or cost 

effective) technology is. 

The EPA would like to examine the documentation that Texas has that supports their 

requirements. 

New Equipment Certification 

If CARB is no longer certifying systems that don't completely meet the CARB enhanced 

rules, who would be certifying new equipment that other states could use? This issue has been 

much debated in other states with no clear answer. Does Texas have a solution to this problem? 
From: Bill Guarniere 713-465-8207 To: Ms Lola Brown 

USTServices,Inc. 

Precision U nderg1uu nd Leak.Dett:X:tion Specialists 

d. CACTUS ~ ENVIRONMENTAL SYSTEMS 

August 8, 2002 

Ms. lola Brown 

MC205 

Texas Natural Resource COnservatiOn COmmission 

Office of Environmental Policy, Anatysis and Assessment 

P.O. Box 13087 

Austin, Texas 78711-3087 

(512) 239-4808 Fax 

RE: Rule log Number 2002-012-115-Al. 

Date: 8/1212002 Time: 5:06:44 PM 

30 TAC 115.221 - Filling of Gasoline Storage Vessels (Stage I) for Motor Vehicle Fuel Dispensing 

Facilities 

30 TAC 1115.240 - 115.249 -Control of Vehicte Refueling Emissions (Stage n) at Motor Vehicle 

Fuel DiSpensing Facilities 

Dear Ms. Brown: 

Our firm performs Stage II Testing in the Houston and Dallas metropolitan areas of Texas. We have been 

performing testing activities since June of 1996. 

We wish to submit our comments with reference to the changes that have been Incorporated Into the 

proposed new regulations. 

It is obvious that a great deal of research and thought has been applied to the rewriting of the 

regulations and in general, we believe that the proposal will improve the quality of operation of Stage II 

system:: 

Our comments deal with some of the areas that are proposed or changed or are Included in both the old 

regulations and the new regulations but have not been implemented. We feel that in order to accomplish 

what is proposed in the new regulations. 

Registration of rosters and TestJna OmtpanJes 

It was stated at the Stakeholder's meeting, the requirement for registration of testers and the 

requirement for meeting some minimum standard of understanding of the testing process is slated to be 

deleted from the new rule. While the rule has not been enforced in the past, It Is our opinion that If the 

agency expects to achieve the 95% level of perfonnance Of Stage n systems it is essential that the 

testing companies and the testers that perform the services be required to achieve some level of 

competency and that the State have some jurisdiction and some authority over the companies that 

perform the testing and the quality of the testing that is performed at the sites. We took a poll of testing 

companies and they would welcome TNRCC lnvo4vement In thls very ImpOrtant anea. 

In light of' the fact that the achievement of the objective is largely the passing of the annual testing 

process, we find the agency's position contrary to the aChievement of the goal of 95% efficiency of the 

Stage II systems in~lled. 

1141 BrittrnooreRoad Houston, Thxas 77043 

(713) 467-4244 (800) 68-TANKS 

(713) 467-6339 FAX: (713) 465-8207 

Page 1 of 4 

8 
From: Bill Guarniere 713-465-8207 To: Ms Lola Brown Date: 8/1212002 Time: 5:06:44 PM 

Reduction of Insoection Goals 

The proposed rules call for a significant Increase in the amount of testing that must be performed at each 

site. It is our opinion that the additional testing activity will result in additional costs to the facility owner. 

The rules also propose directing agency resources to physical Inspection of the testing activity at the 

expense of annual inspections at all sites on an annual basiS thereby reducing the number of inspections 

performed from 100% to 20%. 

The sites that will be inspected are the ones that file Stage II notifications to the agency. The rationale 

behind this program is to improve the quality of the testing that ls being perfonned since agency 

statistics show that siteS that testing activities that are not monitored are less likely to have a quality test 

performed than those sites where agency personnel is present. 

The end result of this proposed change is that between 75% to 80% of the sites will not have an annual 

inspection and predictably, many of these sites will not perform the required testing because of the 

increased costs associated With the revised testing requirements and limited inspections. While 20% of 

the sites may have improved testing performed because of agency oversight, it is our estimate (and we 

are sure that It can be borne out through agency statistics of NOYs), compliance will drop dramatically 

because of the additional costs associated with the revised testing rules and the reduction of Inspections. 

Unless the agency maintains a program to identify which sites are not complying with the testing 

requirements, it is our opinion that this program will fail to achieve the objective of Stage II sites 

operating at 95% effidency by being tested and repaired annually and actually reduce the number of 

sites that are in compliance each year. 

It appears to us that a more effective alternative approach IS available to the agency that would achieve 

the inspection i1!ld observation objectives. 

• The agency could re-test 3.5% of the sites to assure that they were tested properly. This sample, 

which In our opinion, would be statiStically slgniftcant relative to the Stage II population could be 

selected by identifying the testing companies invofved and randomly selecting 3.5% of the 

locations that have already been tested and retesting them to assure compliance. This could be 

done with agency personnel or by using Identified qualified testing companies. Assuming that the 

average time required to observe a test requires 2.5 hours on site and the total site population Is 

2500 sites, this would free up a minimum of 6,031 man hours {3 man years) plus the assocfated 

paperwork and travel time and would, in our opiniOn accomplish the same result The re-test 

need not be invasive. It can be done with a gauge that attaches to the Stage I adapter and 

random nozzle tests. The re-tests could be performed In less than 30 minutes each. The data 

gathered from the re-tests will be Important to the agency in the future In monitoring testing 

companies and in providing information to validate the SIP. 

Expanding Annual Test Beauirenlents 

The agency has expanded the number of tests that are required each year at a Stage n Facility. In many 

cases, this Involves performing blockage tests on the vents and Stage II return lines and the annual 

testing of nozzles. 

Page 2 of4 
1 1vl11. C..'lll vuari'dtre ,·J..:r-46~8207 To: Ms Lola Brown Date: 8/1212002 Time: 5:06:44 PM 

We agree that testing of the nozzles for those systems that do not have an annual nozzle test 

requirement In the Executive order will improve the quality of the air and reduce emissions. As we 

perform testing at the present time, approximately 45% of the sites that we test do not require nozzle 

testing under the installed executive order. These are primarily Gilbarco VaporVac systems with Executive 

Orders Issued prior to G-70-150-AE. 

If the purpose of the expanded testing is to assure that the Stage II system Is operating oroperJy as 

opposed to being Installed correctly, we questiOn the need and the additional expenditures associated 

with the annual requirement for blockage tests on the return lines and vents for the following reasons: 

• Vents: 

One critical requirement of the current annual test IS that the vent cap release when between 2.5 to 

3.0 inches of water column is applied tn the tank system as part of the pressure decay test. If the 

vent cap does not release, it can be the result of a defective vent cap or a blocked vent line or 

several other issues. lf the vent cap is not defective, then the system faits and further lnvestigation is 

required at the site to determine the cause of what would appear to be a blocked vent system. If the 

site Is already equipped with overfill devices and under Texas and EPA regulations It should be, then 

the possibility of having fuel lodged in the vent system is unlikely and uncommon and this problem is 

only created when fuel is introduced into the vent system for the test. 

• Stage n Return unes: 

If nozzle tests are required as part of the annual test, blockages in the Stage II return piping wiU be 

Identified because the nozzles will not operate to V/L - A/L specification .. If the nozzles do not 

operate to specification, then the nozzles fait and an Investigation is required tx> establish the cause. 

In this case the testing of the Stage II Return lines may be required to establish the reason for the 

deficiency and corrective action would be taken if the site did not function properly. 

• Summary 

The blockage testing requirement will cost fadlity owners approximately $150 to $200 per site per 

year to perfonn. This amounts to These tests will determine whether the site was Installed correct1v 

but not necessarily whether the site is currently operating correctly. If the site is operating correctly, 

the vent releases at the correct operating pressure and the Vjl - A/L readings are within 

specificatiOn, we believe that the blockage test requirement other than on a 5 year test is excessive 

to what needs to be dOne to maintain the 95% operating efficiency requirement at the site. 

Site Reconls MajnteniUlGe Beoulrement 

We were left with the Impression at the Stakeholder's meeting that the rules requiring on-site document 

maintenance had been changed to allow the fadlity owner a period of time to gather records that were 

requested during the site visitation. It is our understanding that this requirement has been changed to 

require these records at the Site at the time of the inspection. This requirement inhlbits the use of 

automated compliance record maintenance that would ultimately simplify the job of the TNRCC when 

performing Inspections. 

Page 3 of 4 
from: Bill Guarniere 713-465-8207 To: Ms Lola Brown Date: 8/12/2002 lime: 5:31:28 PM 

n would seem only reasonable to have the same rules for Stage n that is used for teak detection in 

Section 334. 

We appreciate the opportunity to make these comments to you and hope that you will consider them as 

this proposal moves forward to enactment. 

Sincerely, 

William H. Guamlere 

Page 4 of4 
~k V\LERO 

7/fENERGY CORPORATION 

Post Office Box 696000 • San Antonio, Texas 78269-6000 • Telephone (210) 592-2000 

August 9, 2002 

Ms. Lola Brown 

MC205 

Texas Natural Resource Conservation Commission 

Office of Environmental Policy, Analysis and Assessment 

P.O. Box 13087 

Austin, Texas 78711-3087 

(512) 239-4808 Fax 

RE: Rule Log Number 2002-012-115-Al. 

8 

VRTXcommentsaug02.doc 

Via Overnight Delivery 

30 TAC 115.227- Filling of Gasoline Storage Vessels (Stage I) for Motor Vehicle 

Fuel Dispensing Facilities 

30 TAC 1115.240-115.249- Control of Vehicle Refueling Emissions (Stage II) at 

Motor Vehicle Fuel Dispensing Facilities 

Dear Ms. Brown: 

Valero Energy Corporation (Valero) Entities directly operate over 800 retail fuel facilities in the state of 

Texas. Approximately 412 of these facilities are equipped with Stage II Vapor Recovery equipment and 

all Valero sites are equipped with Stage I Vapor Recovery equipment. 

As stated in the 'Background and Summary of the Factual Basis for the Proposed Rules' section of the 

12 July 2002 issue of the Texas Register, Valero generally welcomes the Texas Natural Resource 

Conservation Commission's (TNRCC) proposal of these rule changes as a financially less burdensome 

method for owner and operators to comply and maintain their systems at 95% efficiency. 

Valero respectfully submits the specific comments below: 

1. 

30 TAC 115.227 -Filling of Gasoline Storage Vessels (Stage I) for Motor Vehicle Fuel 

Dispensing Facilities 

Valero supports the proposed changes that would eliminate a potential Stage I vapor recovery exemption 

for a Stage II Vapor Recovery facility. However, for statewide air quality to improve and in order to 

maintain compliance with federal standards, Stage I vapor recovery should be required for all retail fuel 

facilities in the state. The current rules allow for no Stage I vapor recovery for attainment area facilities 

dispensing less than 125,000 gallons per month beginning 1 January 1999. By requiring all facilities to 

upgrade to Stage I vapor recovery, a tremendous amount of fugitive emissions could be captured and 

processed, which would benefit the state's air quality. This would standardize the procedures used by 
Ms. Lola Brown 

Page 2 of 6 

August 9, 2002 

fuel carriers and would further enhance the proper usage of all existing Stage I vapor recovery 

equipment. 

2. 

30 TAC 115.242 (1) (C)- all vacuum assist Stage II vapor recovery systems must be onboard 

refueling vapor recovery ( ORVR) compatible, as defined in 115.240 of this title in accordance 

with the schedules in I I 5. 249 of this title. 

Valero has reviewed the cost estimates for ORVR explained in the 'Background and Summary of the 

Factual Basis for the Proposed Rules' section of the published rules. The rule suggests that ORVR 

upgrades would cost $1100 per dispenser ($6600 per typical facility) but is silent on the exact 

technology that would be used. Investigation of ORVR compatibility by Valero has revealed that the 

use of 'nozzle sensor' technology (recognition of ORVR equipped vehicles and subsequent disabling of 

the vacuum motors) can be cost effective, whereas using a vapor processor (membrane) method could 

cost close to $25,000 - $30,000 per facility for equipment and installation. 

3. 

30 TAC 115.242 (3)(K)- a system monitor or printer that is malfunctioning or out of paper; 

Considering the TNRCC's position of not adopting the California Enhanced Vapor Recovery (EVR) 

program which requires In Station Diagnostics (ISD), Valero disagrees with the Commission's position 

of requiring a vapor recovery system's malfunction of a monitor or printer to be a defect that impairs the 

effectiveness of the system. Inclusion of such language would lead to potential unfair enforcement for 

an Owner/Operator (0/0) who physically has a properly operating vapor recovery system. 

4. 

30 TAC 115.244 (1)- For all systems, the daily inspections shall include the applicable portions 

of 115.242 (3) (A)-(F), (H),(/) and (K) and (4) ofthis title. 

The requirement for daily inspections to detect (I) a vacuum producing device that is inoperative or 

defective, is not possible by facility personnel at a facility utilizing the VaporVac system (e.g., facility 

personnel cannot determine if a vacuum motor is operational). Furthermore, the determination of a 

defect regarding 'a vapor hose that is crimped or flattened such that the vapor passage is blocked, or the 

backpressure through the vapor system exceeds the value as certified in the approved system's CARB 

Executive Order(s)' is beyond the expertise of a typical facility representative (usually a store manager) 

on a vacuum-assisted system. Additionally, it has been the experience of Valero that evaluation of hoses 

by agency inspectors is highly subjective and often inaccurate. This is evidenced by alleged violations 

of "cracked hoses" on VaporVac systems. As the Marconi VaporVac CARB Order details, the system 

uses inverted coaxial hoses (Liquid on outside and Vapor on inside); therefore, if such hoses were 

indeed "cracked," a liquid loss would be evident. 

V8159.doc 
Ms. Lola Brown 

Page 3 of 6 

August 9, 2002 

5. 

30 TAC 115.245- Testing Requirements 

Valero welcomes the development and subsequent modifications to the State of Texas Vapor Recovery 

Test Procedures Handbook (draft, March 2002). Overall, the recent changes and abridgements will 

make it clearer for the testing company and the 0/0 to ensure proper vapor system functionality on an 

annual basis. Comments regarding specific test procedures are summarized in item 6 below. 

6. 

30 TAC 115.245 (2)- Verification of proper operation of the Stage II equipment shall be 

peiformed in accordance with the test procedures referenced in paragraph ( 1) of this section at 

least every twelve months or upon major system replacement of modification, whichever occurs 

first. The verification shall include all functional tests that were required for the initial system 

test. 

As indicated in the 'Background and Summary of the Factual Basis for the Proposed Rules,' full system 

testing must be accomplished at least once in any 12-month period. The term' 12-month period' is used 

in the calendar. sense and is not meant to imply a specific number of days. Valero agrees with this 

policy; however, the Draft State of Texas Vapor Recovery Test Procedures Handbook (March 2002) 

does not mention this issue. This issue needs to be communicated clearly to both the agency inspectors 

and 0/0s. 

Increasing the testing frequency to annually as a method of insuring maximum system efficiency with 

existing equipment is progressive. However, the requirement to annually verify the system using all 

functional tests initially required to verify proper system construction/installation is excessive. For 

example, the annual requirement for a blockage test (TXP 103.1) is unnecessary because any blockage 

would be detected in the AIL test. It is recommended the blockage test be required only every three 

years. 

Furthermore, the requirement to test for blockages from each dispenser instead of just the furthest 

dispenser from the tanks would require multiple processes to uncouple the system. A facility configured 

in such a manner with multiple main vapor lines teeing back to the tanks would require testing from 

multiple points. A knowledgeable tester that has been certified would make the determination for these 

multiple blockage tests and then verify the results with the TNRCC. The annual determination of 

blockage on vent lines is excessive and should be required only every three years. Should vent lines be 

blocked, it is typical that fuel delivery problems will result. These annual blockage tests (dispensers and 

vents) could lead to fuel spills, non-pressure-tight systems and could cause excessive facility downtime. 

The 'State of Texas Vapor Recovery Test Handbook' defines the Determination of Volume to Liquid 

(V/L) of Vapor Recovery Systems at Gasoline Dispensing Facilities at TXP 106.1. However, the CARB 

Executive Order G-70-150-AE (Marconi VaporVac) specifies that CARB approved procedure TP-201.5 

is to be used for AIL determinations. Regardless of any differences in these two test procedures, an 0/0 

would not be testing in accordance with either the CARB Order or with the 'State of Texas Vapor 

Recovery Test Handbook .. ' 

V8159.doc 
Ms. Lola Brown 

Page 4 of 6 

August 9, 2002 

TXP106.1 specifies that a 'vapor volume meter (Dresser Measurement Roots Meter or equivalent)' is 

required. Due to experience in other states, it is recommended that the term 'equivalent' be defined. 

For example, the VacuSmart and VacuCheck meters are an approved alternative to TP-201.5; however, 

per the previous paragraph, when testing in accordance with 115.245, an 0/0 must use test method TXP 

1 06.1. There are benefits to using the VacuSmart and VacuCheck equipment in that test times are 

reduced and VacuSmart calculates the AIL and flow rates thereby reducing errors. 

7. 

30 TAC 115.245 ( 4)- All required tests shall be conducted either in the presence of a Texas 

Commission on Environmental Quality or a local program inspector with jurisdiction, or by a 

person who is registered with the executive director to conduct Stage II vapor recovery tests. 

The accuracy and validity of system tests must be verified. Therefore, Valero favors certification of all 

testing companies and their personnel by the TNRCC, an independent laboratory or an industry trade 

association. The majority of testing companies supports certification and has expressed this in writing to 

the TNRCC. Assistance by the regulated community would be forthcoming if the TNRCC would 

require a rigid but reasonable certification program that includes enforceable standards. 

Considering at least two recent enforcement actions the TNRCC has been associated with involving 

procedural violations by vapor recovery testing companies, certification of all testers would help ensure 

that the operational status of VR systems meets the 95% efficiency level. 

8. 

30 TAC 115.245 (5)- The owner or operator, or his or her representative, shall submit the 

results of all tests required by this section to the appropriate regional office and any local air 

pollution control program with jurisdiction within ten working days of the completion of the 

test( s) using the format specified in the handbook. 

Valero believes that a requirement for local agencies to reconcile on a monthly basis the Stage II Vapor 

Recovery facilities in their jurisdiction with the submitted test results should be included. If the 0/0 is 

required to submit these results to the TNRCC, then the agency should review them to streamline and 

better focus inspection activities. Upon completion of this reconciliation, 0/0s that have not tested in 

accordance with 115.245 could be identified, thus prompting the agency to perform a site inspection or 

request documentation from the 0/0. Should such inspections reveal violations, enforcement actions 

could be implemented. An added benefit to this reconciliation process would be increased efficiency of 

agency inspections, which would benefit air quality. 

Valero agrees with the requirement for Air to Liquid (AIL) testing on an annual frequency (formerly 

every five years) as an efficient method to ensure at least 95% efficiency of existing Stage II Vapor 

Recovery Systems. However, the requirement for annual Dynamic Back Pressure (Blockage) testing is 

excessive in conjunction with annual AIL tests because it is unlikely that a system or portion of a system 

would achieve the required AIL ratios if a blockage was present. It is recommended that a frequency of 

once every three years be required for blockage testing. Valero is concerned that many sites do not have 

exiting test ports at each dispenser and that disconnecting I reconnecting of the vapor recovery piping on 

V8159.doc 
Ms. Lola Brown 

Page 5 of 6 

August 9, 2002 

an annual basis would cause potential harm not only to the integrity of the vapor lines but also the 

product lines. For example, during vapor testing procedures, a liquid product line may be inadvertently 

contacted. If such a Blockage test is required on an annual basis, it should be conducted only once from 

the dispenser located the furthest distance from the tanks. By doing this, the blockage status of the main 

trunk line of the vapor recovery system would be evaluated and the annual AIL tests would verify that 

vapor lines connecting the dispenser to the main trunk line are blockage free. Any discovery of a 

blockage in the system would require testing from each dispenser. 

9. 

30 TAC 115.246 (7)(A)- These records shall be kept on-site at facilities ordinarily manned 

during business hours, and made immediately available for review upon request by authorized 

representatives of the executive director. 

Valero suggests that on-site record keeping be minimized to the daily inspection log, the maintenance I 

defect log and the facility representative training records. All testing documents and CARB Orders 

could be archived at a central location and made available within 48 hours. The reason for this is that 

the 010 is already required (usually through their testing company) to submit copies of all vapor 

recovery system tests to the TNRCC. This submittal combined with the requirement for these records to 

be kept at the facility results in record keeping at three (3) locations. The test records submitted to the 

TNRCC reflect not only the CARB Order, but also the test dates and results. Again, the requirement for 

the local agencies to reconcile on a monthly basis the Stage II Vapor Recovery facilities in their 

jurisdiction with the submitted test results should be included. It seems inefficient for OIOs to submit 

test results and then for the TNRCC not to utilize them to schedule and focus inspections at noncompliant facilities. 

Furthermore, with the current agency guideline of automatic enforcement after three similar violations 

within a five-year period, record-keeping violations will potentially be the most frequent issue. This 

will penalize an 010 who has properly maintained I tested their vapor recovery system but has errors or 

omissions in their onsite records. These enforcement cases would consume excessive agency personnel 

I time and detract from a focus on grossly non-compliant facilities. The presence of onsite records does 

not correlate with increased air quality. 

10. 

V8159.doc 

30 TAC 115.249 (c) (1) & (2)- All vacuum assist Stage II vapor recovery systems must be 

onboard refueling vapor recovery ( ORVR) compatible according to the following schedules. ( 1) 

all installations of vacuum assist Stage II vapor recovery systems installed on or after April], 

2004, must be ORVR compatible; and (2) all vacuum assist Stage II vapor recovery systems 

installed before April], 2004, must be upgraded to an ORVR compatible system no later than 

April 1, 2007. 
Ms. Lola Brown 

Page 6 of 6 

August 9, 2002 

As stated previously, Valero is concerned about the cost and availability of equipment for upgrading 

existing systems and the requirement of new installations to be ORVR compatible. 

Valero appreciates the opportunity to comment on these proposed rules. Should you have any questions, 

please feel free to contact me at 210-592-4235. 

Sincerely,~.~ 

~Willrodt Director- Retail Compliance 

Valero Energy Corporation 

Cc: Michael Thompson- Valero, V.P., Asset Development, San Antonio 

Parker Wilson- Valero; Legal, San Antonio 

V8159.doc 

Martin Dominguez- Valero, Retail Compliance, El Paso 

Terry Hankins Valero, Retail Compliance, Houston 

Billy Hunt Valero, Retail Compliance, Dallas 

David Mendoza- Valero, Retail Compliance, Houston 

Michael Umphress Valero, Retail Compliance, Dallas 
8/12/2002 12:07 PM FROM: Fax TO: 239-4808 PAGE: 001 OF 001 

To: Ms. Lola Brown, 

MC 205, 

Office of Enviromental Policy, 

Analysis and Assessment, 

Texas Natural Resource Conservation Commision 

PO Box 13087 

Austin, TX 7871 ~ 

From: Lorenzo Sen Yung 

It has come to my attention that the list of Aboveground Tank (AST) 

Executive Orders are not included in 115.240. I assume this was an 

oversite? 

8 
INDEX OF ORAL TESTIMONY 

Reference Number Submitted by 

No oral comments were received 
EVALUATION OF 

TESTIMONY 
Texas Commission on Environmental Quality 

INTEROFFICE MEMORANDUM 

To: Commissioners Date: October 18, 2002 

Thru: LaDonna Castaiiuela 

Chief Clerk 

From: Randolph Wood, Deputy Director 

Office of Environmental Policy, Analysis, and Assessment 

Subject: Commission Approval for Adoption of Proposed Rulemaking 

Docket No.: 2002-0411-RUL 

Rule Log No.: 2002-012-115-AI 

What the Adopted Rules Will Do: 

The commission adopted the Stage II rules and SIP narrative on October 16, 1992 (revised on 

November 10, 1993) to satisfy a requirement of the Federal Clean Air Act amendments of 1990, 

§182(b)(3) (42 United States Code (USC), §751l(b)(3)). The original rules followed the 

California Air Resources Board (CARB) certification procedures for the vapor recovery equipment 

at gasoline dispensing facilities. The CARB is currently implementing the California Enhanced 

Vapor Recovery (EVR) program with a completion date of April 2003, after which it will no 

longer certify non-EVR systems. In lieu of incorporating the CARB EVR program, the adopted 

rules will require more frequent testing of vapor recovery systems at gasoline dispensing facilities. 

By doing so, staff believes that the increased testing frequency will continue to satisfy the federal 

requirement to maintain a vapor recovery rate of 95%. These revisions: 

• 

• 

• 

• 

remove language that could potentially provide a Stage I exemption for a facility that is 

required to have Stage II vapor recovery, because Stage II vapor recovery systems must 

include Stage I vapor recovery in order to operate properly; 

modify the Stage II definitions to meet current terminology; 

add a table listing the Stage II vapor recovery systems certified by a CARB executive 

order; 

clarify which CARE-certified Stage II vapor recovery systems would be authorized by the 

executive director, and allow the executive director to continue to recognize any executive 

orders which CARB decertifies in the future; 
Commissioners 

Page 2 

June 7, 2002 

Re: Docket No. 2002-0411-RUL 

• 

• 

• 

• 

• 

• 

• 

include a compliance schedule for gasoline dispensing facilities to upgrade their Stage II 

vapor recovery systems to be compatible with onboard refueling vapor recovery (ORVR) 

systems on newer automobiles; 

change the five-year requirement for full system tests to a one-year requirement, with the 

exception of the vapor space manifold test (TXP-101) and the dynamic back-pressure test 

(TXP-103) which will only be required every three years; 

require a certain percentage of the testing be accomplished in the presence of a 

commission or local program inspector with jurisdiction using the test procedures as found 

in the Vapor Recovery Test Procedures Handbook (RG-399, November 2002); 

change the term "commission" to "executive director" in each location where the action 

being taken is directly associated with the executive director or his staff; 

change the name of the commission to the Texas Commission on Environmental Quality; 

replace the outdated term "undesignated head" with the correct term "division" in 

response to revised Texas Register rules; and 

make various stylistic and editorial changes to comply with the current Texas Register 

Form and Style Manual. 

Applicable Law: 

This rulemaking action is adopted under Texas Health and Safety Code (THSC), §§382.002; 

382.011, 382.012, 382.017, 382.019, and 382.208; and 42 USC, §7511(b)(3). 

Reason Rules Are Needed: 

These revisions are necessary to continue to satisfy the provisions of 42 USC and to maintain a 

vapor recovery rate of 95%. The amendments will substantially advance this stated purpose by 

updating control requirements of vapor recovery systems at gasoline dispensing facilities, requiring 

more frequent testing of these systems, and requiring these facilities to upgrade their Stage II vapor 

recovery systems to be compatible with newer, ORVR-equipped vehicles. Facilities that do not 

upgrade their incompatible Stage II vapor recovery systems may prove to be a new source of 

emissions, thus weakening the SIP integrity. 
Commissioners 

Page 3 

October 18, 2002 

Re: Docket Number 2002-0411-RUL 

Public Comment: 

• A public hearing on this proposal was held in Austin on August 8, 2002. No one spoke 

at the hearing. 

• The comment period closed on August 12, 2002. 

• Written comments were received from B & B Testing, Inc. (B & B); EPA; Industry 

Council on the Environment (ICE); Oncor, formerly TXU Electric & Gas (Oncor); Rice 

Christ Incorporated (RCI); Sierra Club, Houston Regional Group (Sierra-Houston); 

Tanknology; UST Services, Inc. (UST Services); Valero Energy Corporation (Valero); 

Strasburger & Price, LLP, on behalf of 7-Eleven, Inc. (7-Eleven); and one individual. 

• EPA and RCI expressed general support of the proposal. No commenter expressed 

general opposition to the proposal. B & B, ICE, Oncor, Sierra-Houston, Tanknology, 

UST Services, Valero, 7-Eleven, and one individual suggested changes and/or expressed 

concerns regarding the proposed rule language. 

• The following major comments were addressed: 

• Several commenters stated that the rules would be financially less burdensome 

than the California enhanced vapor recovery rules and would maintain the SIP 

integrity and/or improve the quality of operation of Stage II systems. SierraHouston believed the commission should implement the enhanced California 

system. The rules were not changed to implement the more stringent and more 

expensive California systefri. 

· • EPA re'quested documentation that replacement nozzles with a check valve would 

solve the ORVR vapor growth problem and two commenters expressed concerns 

regarding the cost of meeting ORVR compatibility requirements. Staff believes 

that the technology is available and that manufacturers are developing additional 

technologies which will be cost effective. 

• EPA asked if Texas had a solution to new equipment certification if California 

does not continue to certify systems that meet their enhanced rules. The staff 

reply is that if EPA will accept third-party evaluations conducted by qualified 

independent testing organizations for certifying release detection methods, similar 

third-party evaluations for vapor recovery systems should also be acceptable to 

EPA. 
Commissioners 

Page 4 

October 18, 2002 

Re: Docket Number 2002-0411-RUL 

• 

• 

• 

Several commenters requested commission or third-party certification of testing 

companies and their personnel. The staff response is that the THSC and the Texas 

Water Code do not explicitly authorize occupational licensing or certification for 

vapor recovery equipment installers, repair technicians, or testers, nor does the 

commission have sufficient staff to establish a licensing program. Staff does 

believe that the test observation program, where the commission inspectors in 

conjunction with the local programs observe 20% of the Stage II tests, will result 

in a higher percentage of tests being performed correctly. 

Several commenters expressed concerns that the requirement to conduct an annual 

blockage test could. compromise the integrity of the Stage II systems and was 

unnecessary. Staff agreed that opening the vapor lines under each dispenser to 

conduct the blockage test could compromise the system integrity and changed the 

proposed annual requirement to perform the TXP-101 vapor space manifold and 

the TXP-103 dynamic back-pressure tests every three years. The remainder of 

the annual tests were not changed. 

One commenter noted that the above-ground storage tank California executive 

orders were omitted from the executive order table in the proposed rules. Staff 

included the remainder of the California executive orders in the table of the 

adoption document. 

• The commission also received, 39 days after the close of the comment period, an 

American Petroleum Institute sponsored report entitled Refueling Emission 

Controls at Retail Gasoline Dispensing Stations in Texas, dated July 16, 2002. 

This report will be evaluated 'during the mid-course review of the SIP, which will 

be submitted to EPA by May 2004, because the report is based on the new EPA 

MOBILE6 model, the latest version of EPA's emission factor model for mobile 

sources. Staff changed the compliance deadline for the installation of all new 

ORVR compatible systems from Aprill, 2004 to Aprill, 2005 to accommodate 

any policy changes that may arise from the mid-course review. 

Final Regulatory Impact Analysis Determination: 

The staff reviewed this rulemaking action and determined that the rules meet the definition of a 

major environmental rule. Gas station owners and operators in the four ozone nonattainment areas 

(16 counties) in the state will be required to pay approximately $200 more per year in testing costs, 

and those that need to upgrade their gas dispensing systems to become ORVR compatible will 

incur an estimated expense of an additional $1 , 100 per dispenser. This rulemaking action is not 

subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b), because 

the amendments do not meet any of the four applicability requirements. In addition, the intent of 
Commissioners 

Page 5 

October 18, 2002 

Re: Docket Number 2002-0411-RUL 

this proposed rulemaking action is to protect the environment and reduce risks to human health 

from environmental exposure to ozone by keeping gasoline vapor recovery rates at the 95% 

prescribed level of efficiency. Specifically, the amendments implement requirements of 42 USC, 

§75lla(b)(3), (c), and (d) and THSC, §§382.002, 382.011, 382.012, 382.019, and 382.208. 

Takings Impact Assessment: 

Current Stage II rules follow the CARB certification process for vapor recovery equipment; 

however, CARB is implementing an enhanced program that is more costly per facility than the 

alternative proposed in these amendments to Chapter 115. Furthermore, this proposed ruleinaking 

action amends the Stage II gasoline vapor recovery rules and SIP narrative required under 42 

USC, §75lla(b)(3), (c), and (d); and the specific purposes of this rulemaking action are to 

continue to satisfy the provisions of 42 USC and to maintain a vapor recovery rate of 95%. The 

exemption which applies to this rulemaking action is that of an action reasonably taken to fulfill 

an obligation mandated by federal law. Consequently, this rulemaking action does not meet the 

definition of a takings under Texas Government Code, §2007.002(5). 

Consistency with the Coastal Management Program: 

The staff reviewed this action for consistency with the Texas Coastal Management Program ( CMP) 

goals and policies and determined that the action is consistent with the applicable CMP goal 

expressed in 31 TAC §501.12(1) of protecting and preserving the quality and values of coastal 

natural resource areas, and the policy in 31 TAC §501.14(q), which requires that the commission 

protect air quality in coastal areas. 

Affected Agency Programs: 

The adopted rules will primarily affect the Registration, Review, and Reporting Division, Stage 

II Vapor Recovery Program; the Field Operations Division; and the Strategic Assessment 

Division, as well as the SIP Development Team. 

Agency Contacts: 

Ashley Forbes, Registration, Review, and Reporting Division, 239-0493 

John Minter, Environmental Law Division, 239-0663 

Alan J. Henderson, Policy and Regulations Division, 239-1510 

Lola Brown, Texas Register/ Administrative Support Team, 239-0348 

cc: 5 copies to the Chief Clerk for distribution 
EVALUATION OF TESTIMONY 

The Texas Commission on Environmental Quality (commission) adopts amendments to §§115.227 and 

115.240- 115.249, concerning the control of gasoline vapors from storage vessels and dispensing 

facilities. The commission also adopts revisions to the state implementation plan (SIP) narrative, Stage 

II Vapor Recovery Program SIP Revision. The commission will submit these amended rule sections 

and revised SIP narrative to the l)'nited States Environmental Protection Agency (EPA) as revisions to 

the SIP. Sections 115.240, 115.243- 115.245, 115.247, and 115.249 are adopted with changes to the 

proposed text as published in the July 12, 2002 issue of the Texas Register (27 TexReg 6197). 

Sections 115.227, 115.241, 115.242, 115.246, and 115.248 are adopted without changes and will not 

be republished. 

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) to satisfy gasoline vapor recovery requirements of the Federal Clean Air Act 

(FCAA), §182(b)(3) (codified as 42 United States Code (USC), §7511a(b)(3)). EPA requires that all 

Stage II vapor recovery systems be capable of achieiving at least 95% vapor control efficiency. As an 

alternative to testing each station for 95% control efficiency, states can require that installed systems be 

certified by the California Air Resources Board (CARB), certified using CARB test procedures and 

methods, or certified by equivalent test procedures and methods developed by the state and submitted 

as a SIP revision. Texas' current rules follow the CARB certification procedures. The CARB is 

currently implementing an enhanced vapor recovery (EVR) program with a completion date of April 

2003, after which it will no longer certify non-EVR systems. The purpose of the CARB EVR program 

1 
is to increase control efficiency to 98% . In lieu of incorporating the CARB EVR program, the 

commission is adopting 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. Specifically, the 

commission is changing the five-year requirement for full system tests to a one-year requirement, with 

the exception of the TXP-101 vapor space manifold and the TXP-103 dynamic back-pressure test in the 

Vapor Recovery Test Procedures Handbook (test procedures handbook or RG-399), which will be 

required every three years. Also, to decrease the amount of excess emissions caused by 

incompatibility between ORVR and Stage II vapor recovery systems, the commission will require new 

Stage II systems to be ORVR compatible beginning in 2005 and existing vacuum assist Stage II systems 

to be retrofit or replaced to be ORVR compatible by 2007. By doing so, the commission believes that 

the increased testing frequency and ORVR compatibility requirement will continue to satisfy the federal 

. requirement to maintain a vapor recovery rate of 95%. The commission adopts these amendments to 

Chapter 115, Control of Air Pollution from Volatile Organic Compounds (VOC). 

SECTION BY SECTION DISCUSSION 

Throughout this rulemaking the outdated term "undesignated head" has been replaced with the correct 

term "division'.' in response to revised Texas Register rules published in the February 13, 1998 issue of 

the Texas Register (23 TexReg 1289). The name of the commission has been changed to the Texas 

Commission on Environmental Quality because the rules will become effective after the date the name 

change occurred, September 1, 2002. The term "commission" has been changed to "executive 

director" in each location where the action being taken is directly associated with the executive director 

or staff. In addition, various stylistic and editorial changes have been made to comply with the current 

2 
Texas Register Form and Style Manual. Justification for these changes will not be discussed any 

further in this preamble other than to point out where each change was made. 

Subchapter C, Division 2, Stage I Vapor Recovery 

The amendments to §115.227, Exemptions, remove language that could potentially provide a Stage I 

exemption for a facility that is required to have Stage II vapor recovery. All Stage II vapor recovery 

systems must include Stage I vapor recovery in order to operate properly. The amendments also add 

section titles the first time each section is referenced in § 115.227. 

Subchapter C, Division 4, Stage II Vapor Recovery 

The amendments to §115.240, Stage II Vapor Recovery Definitions, include stylistic changes 

previously discussed in this preamble. The amendments delete the definition independent small 

business marketer of gasoline because the term is no longer used in this division. The amendments 

also provide additional definitions for industry-specific terminology presented in the rules, which 

include the definitions for onboard refueling vapor recovery and onboard refueling vapor recovery 

(ORVR) compatible. The amendments add a table listing the Stage II vapor recovery systems certified 

by a CARB Executive Order and change the section title to Stage II Vapor Recovery Definitions and 

List of California Air Resources Board Certified Stage II Equipment. 

The amendments to §115.241, Emissions Specifications, remove the reference to specific 

nonattainment areas as being subject to the controls of the division and place the reference in § 115.249, 

Counties and Compliance Schedules, where it more appropriately belongs. 

3 
The administrative and stylistic amendments to §115.242, Control Requirements, remove the reference 

to specific nonattainment areas as being subject to the controls of the division and place the reference in 

§115.249 where it more appropriately belongs, and change "undesignated head" to "division." The 

amendments to §115.242(2) correct two section numbers and titles in reference citations to 30 TAC 

Chapter 334; delete two reference citations to §115.249 which no longer apply; spell out the acronym 

"UL" as "Underwriters Laboratories"; and delete one superfluous reference to the acronym TNRCC. 

The technical amendments to §115.242 clarify which CARE-certified Stage II vapor recovery systems 

would be authorized for use by the executive director. Also, the amendments allow the executive 

director to continue to recognize any Executive Orders which CARB decertifies in the future. Due to 

the federal mandate requiring motor vehicle manufacturers to make vehicles equipped with ORVR, the 

incompatibility between ORVR and Stage II vapor recovery is addressed because this incompatibility 

may prove to be a new source of emissions. In order to maintain SIP integrity and to prevent new 

emissions, the amendments include a compliance schedule for gasoline dispensing facilities to upgrade 

their Stage II vapor recovery systems to be ORVR compatible. The amendments also eliminate the 

requirement to post the "TNRCC Stage II Vapor Recovery Hotline" on each gasoline dispensing pump 

equipped with a Stage II vapor recovery system. The majority of the calls received on this hotline 

should be directed to either the Texas Department of Agriculture Weights and Measures for issues 

involving price discrepancies at the pump or to the facility owner or operator for customer service 

inquiries. Finally, other control requirements have been updated to ensure that the vapor recovery 

systems operate at the prescribed 95% level of efficiency. 

4 
The amendments to §115.243, Alternate Control Requirements, remove the reference to specific 

nonattainment areas as being subject to the controls of the division and place the reference in §115.249, 

where it more appropriately belongs. In addition, the title of the division was added to §115.243(2). 

The amendments to §115.244, Inspection Requirements, remove the reference to specific 

nonattainment areas as being subject to the controls of the division and place the reference in § 115.249, 

where it more appropriately belongs. The reference to §115.242(3)(I) in §115.244(1) was deleted 

because it is unreasonable for facility representatives with vacuum assist systems to determine whether 

or not a vacuum producing device is "inoperative or defective" under all circumstances. The word 

"utilize" has been replaced with the word "use" in §115.244(2). 

The administrative and stylistic amendments to §115.245, Testing Requirements, remove the reference 

to specific nonattainment areas as being subject to the controls of the division and place the reference in 

§115.249, where it more appropriately belongs. The title of the test procedures handbook has been 

changed to "Vapor Recovery Test Procedures Handbook" and the regulatory guidance number (RG399) and date of the current handbook have been added. The amendments also delete several 

superfluous references to the acronym TNRCC, and change "TNRCC" to "executive director" in 

several locations because the executive director (or staff) is responsible for program management. 

Finally, the name of the commission has been changed in one location. 

The technical amendments to §115.245 provide a directive to use the most recent vapor recovery test 

procedures handbook, add language to allow air-to-liquid ratio (A/L ratio) testing for assist systems, 

add references to third-party certification, and require annual compliance testing of Stage II equipment 

5 
to ensure that the equipment is operating properly. Full system testing, with the exception of TXP-1 01 

vapor space manifold testing and TXP-103 dynamic back-pressure testing, must be accomplished at 

least once in each 12-month period. TXP-101 and TXP-103 testing must be performed at least once in 

each 36-month period. The terms "12-month period" and "36-month period" are used in the calendar 

sense and are not meant to imply a specific number of days. For example, if a full system test was 

completed in a given month, such as October 2003, then another full system test must be done at some 

time in the subsequent 12-month period from November 1, 2003 through the end of October 2004. If a 

full system test was done on October 5, 2003, then the facility has until October 31, 2004 to complete 

the next full system test. If the facility waited until October 31, 2003 to do the next full system test, 

the following test would still be due no later than October 31, 2004. However, if the facility made an 

"early!' full system test on August 15, 2004, regardless of the reason the test was conducted earlier 

than required, then the following system test would be due no later than August 31, 2005. Finally, the 

commission will implement a registry of testers who have certified their knowledge of the test 

procedures handbook. 

The amendments to §115.246, Recordkeeping Requirements, remove the reference to specific 

nonattainment areas as being subject to the controls of the division and place the reference in §115.249, 

where it more appropriately belongs. Other amendments include changing the term "undesignated 

head" to "division" in accordance with Texas Register rules, changing the legalistic term "pursuant to" 

to "under" in two places to comply with the current style guidance, and changing references from the 

"TNRCC" to the "executive director" in two locations because the executive director (or staff) is the 

more appropriate recipient of facility records. 

6 
_The amendments to §115.247, Exemptions, remove the reference to specific nonattainment areas as 

being subject to the controls of the division and place the reference in §115.249, where it more 

appropriately belongs, and delete one superfluous reference to the Texas Natural Resource 

Conservation Commission. In addition, the word "his" has been deleted from §115.247(2). 

The amendments to §115.248, Training Requirements, remove the reference to specific nonattainment 

areas as being subject to the controls of the division and place the reference in §115.249, where it more 

appropriately belongs; delete one superfluous reference to the TNRCC; and change "TNRCC" to 

"executive director" in several locations because the executive director (or staff) is responsible for 

program management. 

The amendments to §115.249, Counties and Compliance Schedules, specify the counties in which these 

rules apply; delete the compliance dates which have passed and change the language to "shall continue 

to comply with"; and add the compliance schedule for ORVR compatibility. The compliance schedule 

for ORVR compatibility has been changed from proposal because the commission will be conducting a 

mid-course review for the Beaumont/Port Arthur, Dallas/Fort Worth, and Houston/Galveston ozone 

nonattainment areas, which will be submitted to EPA by May 2004. The commission has committed to 

perform modeling with MOBILE6, the latest version of EPA's emission factor model for mobile 

sources, as part of this review. Establishing a motor vehicle emissions budget using MOBILE6 is one 

of the key components of the mid-course review. In addition, the mid-course review will address all 

aspects of the SIP including the Stage I and Stage II vapor recovery program. Therefore, the 

commission has changed the compliance deadline for the installation of all new ORVR compatible 

7 
systems from April 1, 2004 to April 1, 2005 to accommodate any policy changes that may arise from 

the mid-course review. The amendments also changed the term "undesignated head" to "division." 

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION 

The commission reviewed the rule making action in light of the regulatory analysis requirements of 

Texas Government Code, §2001.0225, and determined that the amendments meet the definition of a 

"major environmental rule" as defined in that statute. 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 rulemaking action is to protect the environment and reduce risks to 

human health from environmental exposure to ozone by keeping gasoline vapor recovery rates at the 

95% prescribed level of efficiency. The amendments may have an adverse material impact on a sector 

of the economy or a sector of the state. Gas station owners and operators in the four ozone 

nonattainment areas (16 counties) in the state will be required to pay approximately $200 more per year 

in testing costs, and those that need to upgrade their gas dispensing systems to become ORVR 

compatible will incur an expense of approximately -$1, 100 per dispenser, or up to approximately 

$20,000 per facility, depending-on the specific technology they choose to implement. 

Although the amendments meet the definition of a "major environmental rule" as defined in the Texas 

Government Code, §2001.0225 only applies to a major environmental rule, the result of which is to:1 

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 

8 
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 rulemaking action is not 

subject to the regulatory analysis provisions of §2001.0225(b), because the amendments do not meet 

any of the four applicability requirements. Specifically, the 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. The commission invited public comment on the draft regulatory 

impact analysis determination, but received no comments. 

TAKINGS IMPACT ASSESSMENT 

The commission evaluated this rulemaking action and performed an analysis of whether Texas 

Government Code, Chapter 2007 is applicable. The analysis indicates this action is being taken to 

reasonably fulfill an obligation mandated by federal law, and therefore is exempt under Texas 

Government Code, §2007.003(b)(4). Specifically, this rulemaking action amends the Stage II gasoline 

vapor recovery rules and SIP narrative required under 42 USC, §7511a(b)(3), (c), and (d). The 

specific purpose of this rulemaking action is to continue to satisfy the provisions of 42 USC and to 

maintain a vapor recovery rate of 95%. The amendments substantially advance this stated purpose by 

updating control requirements of vapor recovery systems at gasoline dispensing facilities, requiring 

more frequent testing of these systems, and requiring these facilities to upgrade their Stage II vapor 

recovery systems to be compatible with newer, ORVR-equipped vehicles. Facilities that do not 

upgrade their incompatible Stage II vapor recovery systems may prove to be a new source of 

emissions, thus weakening the SIP integrity. 

9 
Nevertheless, the commission further evaluated this rulemaking action and performed an analysis of 

whether this action would constitute a takings under Chapter 2007. The specific purpose of these 

amendments is to continue to satisfy federal requirements for vapor recovery from gasoline dispensing 

facilities in nonattainment areas of the state. The amendments substantially advance this stated purpose 

by requiring more frequent testing and upgrading of vapor recovery systems at these gasoline stations. 

Promulgation and enforcement of these amendments would be neither a statutory nor constitutional 

taking of private real property. Specifically, the 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 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. Some gas station 

owners and operators may be required to install or modify Stage II vapor control equipment that will 

make the gas dispensing systems ORVR compatible; however, the existing Stage II rules follow the 

CARB certification process for vapor recovery equipment. CARB is implementing an enhanced 

program that will require installation of more costly equipment than the alternative adopted in these 

amendments to Chapter 115. In addition, the alternative in these amendments will continue to provide 

benefits to society by maintaining vapor recovery rates at 95% efficiency. Therefore, these 

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, 

10 
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 

rule making action is the goal to protect, preserve, and enhance the diversity, quality, quantity, 

functions, and values of coastal natural resource areas (31 T A C §50 1.12(1)). 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 (CFR), to protect 

and enhance air quality in the coastal areas (31 T AC §50 1.14( q)). This rulemaking action complies 

with 40 CFR 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 CPM goals and policies. The commission solicited comments on the consistency of 

the proposed rules with the CMP during the public ·comment period, but received no comments. 

EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING PERMIT 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. 

11 
PUBLIC COMMENT 

The commission held a public hearing on this proposal in Austin, Texas, on August 8, 2002, at 2:00 

p.m., at the commission central office located at 12100 Park 35 Circle, Building F, Room 2210. The 

comment period closed at 5:00p.m. on August 12, 2002. The following commenters submitted 

testimony on the proposal: B & B Testing, Inc. (B & B); EPA; Industry Council on the Environment 

(ICE); Oncor, formerly TXU Electric & Gas (Oncor); Rice Christ Incorporated (RCI); Sierra Club, 

Houston Regional Group (Sierra-Houston); Tanknology; UST Services, Inc. (UST Services); Valero 

Energy Corporation (Valero); Strasburger & Price, LLP, on behalf of 7-Eleven, Inc. (7-Eleven); and 

one individual. 

The commission also received, 39 days after the close of the comment period, an American Petroleum 

Institute (API) sponsored report entitled Refueling Emission Controls at Retail Gasoline Dispensing 

Stations in Texas, dated July 16; 2002. This report will be evaluated during the mid-course review of 

the SIP, which will be submitted to EPA by May 2004, because the report is based on the new EPA 

MOBILE6 model, the latest version of EPA's emission factor model for mobile sources. 

RESPONSE TO COMMENTS 

EPA and RCI expressed general-support of the proposal. No commenter expressed general opposition 

to the proposal. B & B, ICE, Oncor, Sierra-Houston, Tanknology, UST Services, Valero, 7-Eleven, 

and one individual suggested changes and/or expressed concerns regarding the proposed rule language. 

12 
General Comments 

Valero commented that it generally supports the proposed rules as stated as a financially less 

burdensome method to maintain compliance with Stage II systems at 95% efficiency. EPA commented 

that it agrees in principle with the proposed rule changes and supports the proposed changes to the 

testing requirements in §115.245(2). RCI stated that it is in favor of the proposed rule change for 

personal and business reasons. ICE commented that it believes the proposed changes to the regulations 

will accomplish the objectives defined in the preamble and help owners and operators of gasoline 

dispensing facilities achieve the prescribed efficiency of their Stage I and Stage II vapor recovery 

systems. UST Services stated that it generally believes the proposal will improve the quality of 

operation of Stage II systems. 

The commission appreciates the support and agrees that the adopted rules will improve the 

quality of operation of Stage II systems, will better ensure Stage II system compliance, and are 

fmancially less burdensome than the CARB EVR program. 

Sierra-Houston commented that the commission should implement the California EVR program. 

The commission appreciates the comment. However, the commission has determined that a 

theoretical 3% increase in efficiency using developing technologies, such as in-station diagnostics 

and dripless nozzles, does not appear to warrant such substantial capital costs to owners and 

operators of gasoline dispensing facilities in the State of Texas. Nevertheless, the commission 

acknowledges that dispensing gasoline from a Stage II vapor recovery system into ORVRequipped vehicles presents pressure-related concerns in addition to the pressure-related fugitive 

13 
emissions normally occurring at gasoline dispensing facilities. Therefore, the commission opted 

to implement an ORVR compatibility requirement. ORVR compatible Stage II vapor recovery 

systems are currently available in the market; therefore, the commission determined that 

implementing ORVR compatibility in concert with more frequent compliance testing is the best 

course of action to ensure that fugitive emissions do not increase as a result of a changing vehicle 

population. The commission made no changes in response to this comment. 

Compliance Date 

Sierra-Houston commented that the proposed implementation date of Aprill, 2007 for recently 

installed vacuum assisted systems will leave little time for these controls to begin reducing VOC levels, 

and little time for the commission and other air enforcement agencies to ensure the controls have been 

installed. Sierra-Houston recommended November 15, 2005 as an alternative compliance date. 

Regarding the determination of compliance deadlines, the commission's initial concern was 

determining when, or if, the federal requirement for Stage II vapor recovery would be repealed 

as a result of the introduction of ORVR systems on motor vehicles. Under the FCAA, the EPA 

administrator has the exclusive authority to rescind the Stage II vapor recovery requirement once 

EPA has determined that vehicles equipped with ORVR controls are in "widespread use." 

Pending official guidance from the EPA on this matter, the commission referred to the EPA 

document, Frequently Asked Questions on MOBILE6, January 16, 2002, which states, " .•• the full 

fleet effect of ORVR will not be in place until 2030, assuming all vehicles over 25 years are 

negligible." The commission also referred to the EPA document entitled, Stage II Vapor Recovery 

and the Revised National Ambient Air Quality Standards (NAAQS), November 3, 1998, which 

14 
states, "It will take 15 to 20 years for onboard controls to be fully phased in depending on fleet 

turnover rates for an area." Therefore, the commission does not believe that EPA intends to 

repeal the Stage II requirement for at least 15 to 30 years. Due to the uncertainness of a 

widespread use determination, the commission decided the environmentally responsible solution 

would be to retrofit or replace existing Stage II vapor recovery systems to be ORVR compatible, 

and to require all systems installed in the future to be ORVR compatible. 

In order to frame appropriate compliance deadlines, the commission examined the current 

population of registered vehicles in Texas, examined the availability of replacement assist systems 

(currently CARB certified as ORVR compatible), and contacted Stage II vapor recovery 

manufacturers to project when potential retrofits (including CARB EVR systems which meet the 

ORVR compatibility requirements) may be available. Based on the review of all available 

information, the commission is confident that the 2007 .compliance date will ensure continued 

VOC reductions and provide a reasonable amount of time for the Stage Il industry to design, 

test, certify, market, and install new technologies that meet, and perhaps even surpass, the 

requirements. 

ORVR Compatibility Requirement 

EPA requested support documentation that replacement nozzles with a check valve will solve the 

ORVR vapor growth problem. EPA stated that nozzle manufacturers indicate they will solve the 

ORVR vapor growth problem, but underground storage tank vent line manufacturers allege the systems 

will require a control device on the vent line (permeable filter, carbon absorber, or afterburner are 

proven technologies) to mitigate vent line emissions. Valero also raised concerns about the cost of 

15 
meeting ORVR compatibility requirements, citing $1,100 per dispenser for nozzle sensor technology as 

cost effective, whereas vapor processor (membrane) methods may cost up to $30,000 per facility. ICE 

expressed concern about the cost and availability of equipment for upgrading existing systems by 2007. 

The commission is confident that both nozzle technologies and membrane technologies are viable 

solutions to the ORVR compatibility issue. At the beginning of the rulemaking process, the 

commission estimated a $1,100 nozzle replacement cost in anticipation that replacement nozzle 

technologies would be developed and marketed by manufacturers of existing vacuum assist 

systems. Healy Systems, Inc. currently holds two CARB certifications, CARB Executive Orders 

G-70-186 and G-70-191, for ORVR-compatible vacuum assist Stage II systems. Both of these 

systems utilize a patented technology dubbed the· "smart nozzle." This nozzle uses a device that 

senses the change in the vehicle fill pipe pressure when fueling ORVR-equipped motor vehicles 

using a specialized vapor escape guard and a pressure-sensing diaphragm. 

Furthermore, Gilbarco indicated to the commission that it is developing several technologies to 

address the ORVR compatibility issue. One option is a nozzle that employs the use of 

hydrocarbon sensor technology. Another option is a membrane processor. The commission has 

been assured.by Gilbarco that it intends to test these and other technologies for CARB 

certification. Based on Stage II test results submitted for fiscal year 2001, over 50% of the Stage 

II systems in Texas are a Gilbarco/Marconi VaporVac model. 

Presently, there are no Stage II systems with membrane processors certified to meet the ORVR 

compatibility requirement. However, the commission understands that one manufacturer is 

16 
currently testing a membrane system with CARB and other membrane system manufacturers are 

expected to test with CARBin the near future. 

The commission reiterates that it is important for owner/operators to communicate with their 

respective manufacturers to determine what kind of retrofit, if any, will be made available to 

them. The commission has taken measures to facilitate every possible option; nonetheless, if 

manufacturers do not produce retrofits, then the owner/operators must replace their Stage II 

vapor recovery systems with either balance systems or vacuum assist systems certified to be 

ORVR compatible. The commission is confident that should this unlikely scenario occur, the 

implementation time line in these rules will allow gasoline dispensing facility owners/operators 

sufficient time to fmd the most cost-effective solution available. The EPA-requested 

documentation regarding replacement nozzles with check valves will be provided to EPA under 

separate cover. 

RCI commented that for every 10,000 gallons of fuel dispensed where all motor vehicles are equipped 

with ORVR, approximately 20 gallons of fuel will be lost in the form of vapors. 

The commission appreciates the comment. Information made available by manufacturers and 

other industry experts has been valuable to the commission, particularly the information 

regarding the Stage 11/0RVR compatibility issue. CARB estimates emissions reductions of 4.5 

tons per day in California by instituting an ORVR compatibility requirement. A CARB District 

Survey dated October 2, 1998, stated that approximately 17% of gasoline dispensing facilities in 

the State of California are vacuum assist systems. However, approximately 90% of the gasoline 

17 
dispensing facilities in the Texas nonattainment areas are vacuum assist systems. Therefore, the 

commission believes that the projected emissions savings resulting from the ORVR compatibility 

requirement will be significantly greater in Texas than those anticipated in California. The 

commission made no changes in response to this comment. 

Stage II System Certification 

EPA asked if Texas has a solution to the certification of new-equipment if CARB does not continue to 

certify systems that do not meet CARB's enhanced rules. 

The commission maintains that if EPA accepts third-party evaluations conducted by qualified 

independent testing organizations as appropriate for the purposes of certifying release detection 

methods for gasoline dispensing facilities, similar third-party evaluations for vapor recovery 

systems should be acceptable. 

To date, an alternative to the CARB certification program has not been made available to Texas 

or other states. Most vapor recovery systems manufactured in the future will be CARR-certified 

under California's legislatively mandated EVR standards. These new standards are not currently 

required in Texas or in most other states. However, CARB has agreed, for a limited time, to 

certify systems for the ORVR compatibility module, independent of the certification testing for a 

complete EVR system (all six CARB modules). 

In order to allow for fair market competition and to satisfy Texas' SIP requirements, the 

commission is allowing industry to certify vapor recovery systems via a third party using pre18 
EVR CARB methodology (CP-201, 1996 version). The CARB certification process requires that 

most of the costs to test and certify equipment be absorbed by the equipment manufacturers. 

However, CARB does fund some of the testing equipment and staff to oversee the testing. In the 

commission's third-party certification program, the third-party laboratory or engineering firm 

would provide the staff to oversee the testing at the expense of the equipment manufacturer. The 

commission staff will review a fmal report and provide an approval letter if the third-party 

company meets the agreed criteria. The commission has made no changes in response to this 

comment. 

Stage II Tester Registry 

Valero stated that it supports the certification of all testing companies and their personnel by the 

commission, an independent laboratory, or an industry trade association. ICE and Tanknology also 

stated that they support the registration (certification) of testers and the requirement that testers pass a 

proficiency test. 7-Eleven expressed some ambivalence about the proposed tester registry, but 

supported a stronger tester certification program with requisite training and an enforceable system to 

ensure tester competence and accountability. Based on the proposed annual Stage II testing 

requirements, 7-Eleven predicted that new testing companies will be attracted to the Texas market, and 

further stated that these new testing companies may not be competent in this field and will only be 

made accountable if they are faced with "imminent de-registration." 7-Eleven also cited the existing 

facility representative training requirements in §115.248 as a resource for the commission to review 

and approve Stage II-related curriculum. B & B stated that Stage II vapor recovery testing is just as 

important as tank, line, cathodic protection, and other tests that are performed at gasoline dispensing 

facilities, but that Stage II is the only testing that is currently allowed to be performed without a 

19 
certification. B & B supported mandated certification of testers with independent training and a 

standard state test. UST Services stated that in order to achieve 95% efficiency, it is essential that the 

Stage II testers achieve a level of competency and that the state should have some degree of authority 

and jurisdiction in this area. 

The commission shares the commenters' concern that Stage II vapor recovery equipment should 

be properly tested by competent technicians; however, the commission cannot implement their 

recommendations 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 any type of 

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. Although there is a precedent 

for requiring explicit statutory authority for the licensing or certification of occupational 

programs related to gasoline dispensing facilities that the commission currently administers, such 

as Underground Storage Tank Contractor Registration/Installers and Leaking Petroleum Storage 

Tank Corrective Action Specialist/Project Managers, there are no provisions in the TWC for the 

licensing of Stage II vapor recovery equipment testers. 

An additional concern is the issue of staffing. The two primary methods of regulating such an 

activity are to hold the facilities accountable for the proper function of their equipment or to 

license the persons performing the function. The first method can be accomplished with the 

commission's current staffmg while implementation of a licensing program will require additional 

20 
staffmg. Due to current staffmg constraints, the commission is not presently in a position to 

dedicate the additional staff required to establish a new licensing program. Therefore, the 

commission made no changes in response to this comment. 

Stage I Vapor Recovery 

Valero supported the elimination of the potential Stage I vapor recovery exemption for a Stage II vapor 

recovery facility, but suggested that the commission eliminate the 125,000-gallon throughput exemption 

and require Stage I vapor recovery statewide to improve air quality. Valero commented that this would 

standardize the procedures used by fuel carriers and enhance the proper use of existing Stage I vapor 

recovery equipment. 7-Eleven commented that the commission should enact and enforce more 

stringent standards for documentation of vapor recovery during fuel deliveries and/or promote more 

stringent standards for the measurement of vapors returned to the gasoline terminals and gasoline bulk 

plants after delivery. 7-Eleven indicated that the resultant decreases in VOC emissions should be used 

to authorize SIP flexibility in Stage II vapor recovery implementation. 

The commission disagrees that Stage I vapor recovery standards should be required throughout 

the state. While the commission agrees that implementing the Stage I vapor recovery criteria 

might standardize the procedures used by fuel carriers and enhance the proper use of existing 

Stage I vapor recovery equipment, the commission does not believe that promulgating Stage I 

vapor recovery standards statewide is crucial in achieving compliance with the NAAQS in the 

state's ozone nonattainment areas. The commission is also concerned that promulgating the 

Stage I vapor recovery standards throughout the state may place an unnecessary hardship on 

facilities which are located in counties that are in compliance with the NAAQS and in which 

21 
aggregate gasoline emissions from the filling of storage tanks at motor vehicle dispensing facilities 

do not have a significant impact on the ozone nonattainment areas and near-nonattainment areas. 

With regard to 7-Eleven's comment about SIP flexibility, Stage II vapor recovery is a federally 

mandated VOC control and as such, it cannot be substituted with another VOC control to meet 

the NAAQS. However, at the request of stakeholders the commission may reevaluate the Stage I 

requirements for the 95 attainment counties in central and eastern Texas in a subsequent 

rulemaking action. At that time, the commission would consider the comments provided by 

Valero and 7-Eleven regarding Stage I vapor recovery, including 7-Eleven's comment that the 

commission should include more stringent standards for gasoline distributors, terminals, and 

bulk plants when determining VOC reduction strategies. Therefore, the commission made no 

changes to the Stage I vapor recovery standards in response to these comments. 

Equipment Issues 

Valero stated that the proposed language regarding malfunctioning printers in §115.242(3)(K) will 

result in unfair enforcement for owners and operators who may have a properly functioning Stage II 

vapor recovery system. 

Some systems. are required in their CARB Executive Orders to possess system monitors because 

prior versions of these systems have demonstrated problems generating adequate vacuum thereby 

creating excess venting episodes. If the system monitor is out of paper or is malfunctioning in 

such a way that prevents the investigator from determining proper system operation, there has to 

be a mechanism in place that requires the owner/operator to replace or repair the monitor. 

Without a specific enforceable requirement, the problem may go unresolved. The commission 

22 
agrees that, technically speaking, there may be no decrease in a system's ability to recover 

vapors, but the certification of a system requires that the operational status be available for 

inspection at all times. The commission inspection protocols would consider any infraction of this 

nature to be a recordkeeping violation. 

Valero raised concerns that the proposed language in §115.244(1) was unreasonable for facility 

representatives with vacuum assist systems to be able to determine whether or not a vacuum-producing 

device is "inoperative or defective" or to determine if a crimped or flattened hose is affecting the 

performance of a Stage II system. 

The commission concurs that it is unreasonable for facility representatives with vacuum assist 

systems to determine whether or not a vacuum producing device is "inoperative or defective" 

under all circumstances. Therefore, the commission deleted the reference to §115.242(3)(1) in 

§115.244(1). However, crimped or flattened hoses should be noted during daily inspections. It is 

the owner's/operator's responsibility to determine whether or not the crimped or flattened hose 

has created a vapor blockage. It is left to the discretion of the owner/operator to determine 

whether or not a crimped or flattened hose should be tested for a vapor blockage or replaced as a 

precautionary measure. If, upon inspection, a crimped or flattened hose is found, through test, 

to be blocked, a notice of violation can be issued. 

Test Observation Program (TOP) 

ICE and UST Services commented that the TOP will take up a lot of the commission's time, and will 

cost owners and operators more money. ICE and UST Services commented that the commission and 

23 
the city (local programs) will only inspect about 20% of the facilities, as opposed to the previous 

program whereby the city inspected 100% of all facilities. ICE and UST Services commented that 

TOP will reduce compliance. UST Services commented that the commission needs to maintain a 

program to identify which sites are not complying. ICE commented that TOP will lead to greater 

vapor emissions. 

ICE and UST Services suggested that the commission should randomly inspect 3.5% of the locations 

that have already been tested to assure they were properly tested. ICE and UST Services commented 

that, assuming that it would take about 2-1/2 hours to observe a test and that there are 2,500 sites, their 

plan would save the agency 6,031 man-hours. ICE and UST Services commented that the inspections 

would not have to be invasive and could be completed in 30 minutes; for example, the agency could 

conduct random nozzle tests or inspect the Stage I adapters with gauges. ICE and UST Services also 

commented that the data gathered via their program would provide the commission with information 

for new regulations and/or the SIP. 

The commission believes that TOP activities will not occupy as much time as ICE and UST 

Services assume. The commission realizes that the rule will increase costs for owners and 

operators of the affected facilities, but believes that the costs will create no great burden. The 

commission believes that observing Stage II tests at 20% of the affected facilities is equivalent to 

inspecting 100% of the facilities because commission statistics show that when Stage II tests are 

observed by qualified enforcement officials, malfunctioning vapor recovery systems are more 

likely to be detected and repaired. This program will allow the commission to defmitively 

determine which vapor recovery systems are operating at the certified efficiency, and will also 

24 
allow the commission to ascertain which testers are following proper testing procedures. The 

commission also believes that working in conjunction with the local programs will provide 

sufficient work force to ensure full compliance with these rules and thereby, fewer vapor 

emissions. 

The commission did not replace the TOP with the commenters' suggested program to randomly 

inspect 3.5% of the affected facilities that have already performed the required tests. The 

commission believes that the observation method that it has chosen to adopt will provide greater 

compliance by those affected by these rules, as it is more thorough, yet not as time consuming as 

the commenters suggested. The commission believes that it can also obtain more data to use in 

related future rules or SIPs by using the TOP as opposed to utilizing the commenters' random 

testing procedure. The commission has made no changes in response to this comment. 

Vapor Recovery Test Procedures Handbook 

Valero indicated that it welcomes changes to the test procedures handbook, but raised concerns that the 

handbook does not mention the 12-month test period that is stated in §115.245. Valero stated that the 

testing policy describing the 12-month period should be communicated clearly to all commission 

inspectors and owners/operators. 

The commission agrees with the comment. Language which parallels wording in §115.245 

regarding testing frequency will be added to the introduction of the published test procedures 

handbook. 

25 
Valero commented that the test procedures handbook defines the volume-to-liquid (V/L) test (TXP 

106.1), but does not define the CARB A/L test procedure (TP-201.5) required in the CARB Executive 

Order G-70-150-AE for the Marconi (Gilbarco) VaporVac System. Valero requested further 

clarification or examples regarding what kind of vapor volume meter will be acceptable for use. 

In accordance with §115.245(1), the test procedures handbook takes precedence over any test 

procedure listed in the CARB Executive Order; however, several alternatives to TXP-106 have 

been approved by the executive director including CARB TP-201.5, VacuChek, and VacuSmart. 

If the TXP-106 or TP-201.5 tests are chosen, a RootsMeter is required. The VacuChek and 

VacuSmart alternative procedures require the VacuChek or VacuSmart, respectively. 

Stage II Testing Issues 

Valero, ICE, Tanknology, and UST Services commented that they support annual testing of Stage II 

systems for A/L, V/L, and pressure decay, but do not support an annual TXP-103 blockage test. 

7-Eleven also challenged the necessity of an annual blockage test. Valero recommended that the 

blockage test be required only every three years. ICE and Tanknology recommended that the blockage 

test be required every three to five years. Valero, 7-Eleven, and UST Services stated that performing 

a blockage test.more than once every five years is in excess of what needs to be done to maintain the 

95% operating efficiency requirement at the site. They cited that the blockage test is designed to verify 

proper installation of the system, not necessarily proper system operation. 7-Eleven and UST Services 

also stated that the blockage testing requirement will cost facility owners approximately $150 to $200 

per site per year to perform. Valero, ICE, and Tanknology all stated that they were concerned that 

26 
opening the vapor lines under each dispenser in most facilities to introduce fuel into the line to perform 

the blockage test will compromise the integrity of the system. 

The commission appreciates the comments regarding the proposed annual testing requirements. 

The commission's goal is to ensure that Stage II vapor recovery systems are maintained and 

tested to ensure the 95% operating efficiency requirement. It is important to test for blockages 

not only at the time of installation, but also periodically, because even properly installed Stage II 

systems have the possibility to develop problems over time, such as vapor blockages. 

Nevertheless, the commission shares the commenters' concerns about system integrity and has 

changed the requirement in §115.245(2) to require the TXP-103 test at least once every 36 

months. However, in order to better ensure potential blockages are detected on a timely basis, 

the annual TXP-106 test procedure will be modified to include the introduction of a minimum 

quantity of gasoline at the termination of vapor return lines to provide an annual indication 

regarding system blockage without breaking piping junctions at each dispenser. Furthermore, 

any alternative method approved by the executive director (e.g., CARB TP-201.5) must also 

include an introduction of gasoline at the termination of the vapor return lines. Because TXP-101 

poses similar problems for system integrity as TXP-103, the commission will also change the 

testing frequency requirement for TXP-101 to at least every 36 months. 

Oncor stated that the existing langua_ge in the proposed rule establishes and by inference sets the price 

per year for the full system test at $550, and suggested changes to the preamble language. Oncor 

suggested that words such as "an average" be used in the language used to describe testing costs. 

27 
The commission agrees with the commenter. The commission did not intend to establish set costs 

for Stage II testing, and the preamble language has been changed to reflect estimated testing 

costs. 

Aboveground Storage Tank (AST) Executive Orders 

One individual noted the erroneous exclusion of AST Executive Orders in §115.240. 

The commission agrees and has added the AST CARB Executive Orders to §115.240. 

Recordkeeping Requirements 

Valero, ICE, 7-Eleven, and UST Services commented on the proposed recordkeeping requirements. 

ICE and 7-Eleven commented that requiring records to be maintained on-site was too burdensome. 

Valero, 7-Eleven, and ICE commented that the proposed rule should allow owners and operators to 

maintain annual system testing records off-site, and 7-Eleven commented that records could be kept 

off-site and delivered to the regional office at the time of the ten-day notification of system testing. 

Valero and ICE commented that the on-site recordkeeping requirements should be minimized to the 

daily inspection logs, maintenance logs, and facilit)r'tepresentative training records. Valero and ICE 

asserted that the remaining documents could be archived at a central location and made available within 

48 hours. ICE and Valero commented that the enforcement of regulations regarding recordkeeping 

could take away from the commission's ability to enforce vapor recovery system compliance, 

postulating that recordkeeping violations could take up an inordinate amount of the commission's time 

that would otherwise be utilized to inspect noncompliant facilities. ICE and UST Services commented 

that the commission should consider following the recordkeeping requirements outlined in 30 TAC 

28 
Chapter 334 for the Stage II test reports so as to provide consistency and simplification. They pointed 

out that if the rules for Stage II testing were consistent with the rules for tank and line testing, they 

would have time to produce the test results to the agency, or the agency could review its own files 

before performing the site inspections. Tanknology, Valero, and ICE commented that they support the 

testing requirements; however, they felt that the agency should examine the submitted test results to 

assure compliance with the regulations and create a database of the test results that is reconciled 

monthly. Tanknology, Valero, and ICE expressed the belief that such a process could be used to 

identify facilities that either have not submitted the results or have not performed the testing activity, 

which would thereby improve the efficiency of the agency inspections, improve compliance among 

facility owners, and ultimately improve the air quality. 

The commission does not agree with the comments by 7-Eleven, Valero, and ICE that the 

recordkeeping requirements should be further modified to allow for off-site record retention. 

The amendments allow owners/operators 48 hours to produce records for unmanned facilities. 

The commission also does not agree that retention of these records on-site will place any undue 

burden on those affected by the rule, and believes that this requirement is crucial to enforcement 

of these rules. The commission also believes that these rules will be most effectively enforced if 

all required records are kept on-site as specified. Records must be kept on-site and made 

immediately available for review upon request by authorized representatives of the executive 

director, EPA, or any local air pollution control program with jurisdiction so as to allow for 

proper administration of the rules by authorized personnel. The commission believes that on-site 

review of test records during inspections provides Field Operations Division personnel a 

perspective on the operation and maintenance at a particular facility over time. The commission 

29 
prefers that records be kept on-site so as to facilitate unannounced inspections required in 

accordance with the SIP. The commission also disagrees with the comment by Valero and ICE 

that recordkeeping violations could take up too much of the commission's time that would 

otherwise be utilized to inspect noncompliant facilities. The commission believes that there are 

adequate resources to enforce all aspects of the Stage I and II rules. The commission does not 

agree with the comments of ICE and UST Services that the proposed recordkeeping requirements 

should conform to the recordkeeping requirements outlined in Chapter 334 for the Stage II test 

reports. There are differences in the recordkeeping requirements because there are significant 

differences between Chapter 334 rules and these rules. The commission appreciates comments 

from Tanknology, Valero, and ICE that suggested the commission should examine the test results 

submitted to assure compliance with the regulations and create a test results database that is 

reconciled monthly. The commission believes that the current procedures are sufficient to assure 

compliance with the regulations. However, because the SIP has historically required 100% of the 

facilities to be inspected, commission and local program investigators have ordinarily reviewed 

test results on-site during annual Stage II investigations. During the pilot TOP, the commission 

tracked and recorded test results in a database. Due to staffmg constraints, this practice was 

discontinued shortly after the pilot program final report was issued. With the implementation of 

the TOP, regional offices and ~ontracted local programs will be independently tracking test 

results in databases. These databases will be used to determine which facilities have not 

performed the required testing according to the prescribed schedule. 

30 
STAFF 

RECOMMENDATIONS 
NOTE: The Chapter 115 revisions in this November 14, 2002, submittal 

were approved or superseded by revisions approved by EPA March 29, 

2005 (70 FR 15769) and corrected July 13, 2005 (70 FR 40195). This 

submittal is not in Regulations.gov docket EPA-R06-OAR-2005-TX-0008 

for these Federal Register actions because it apparently did not replicate to 

Regulations.gov when EPA dockets were copied to Regulations.gov in 

December 2005. This November 14, 2002, submittal should be in 

document EPA-R06-OAR-2005-TX-0008-0003 in the docket. The rest of 

the documents for the March 29, 2005, and July 13, 2005, Federal Register 

actions are in the docket, including the adopted revisions to Chapter 115 

published in the Texas Register November 22, 2002, which is in document 

EPA-R06-OAR-2005-TX-0008-0004. 
SUBCHAPTER C: VOLATILE ORGANIC COMPOUND TRANSFER OPERATIONS 

DIVISION 2: FILLING OF GASOLINE STORAGE VESSELS (STAGE I) 

FOR MOTOR VEIDCLE FUEL DISPENSING FACILITIES 

§115.227 

STATUTORY AUTHORITY 

The amendment is adopted under TWC, §5.103, concerning Rules, and §5.105, concerning General 

Policy, which· authorize the commission to adopt rules necessary to carry out its powers and duties 

under the TWC; and under THSC, §382.017, concerning Rules, which authorizes the commission to 

adopt rules consistent with the policy and purposes of the TCAA. The amendment is also adopted 

under THSC, §382.002, concerning Policy and Purpose, 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, concerning General Powers and Duties, which authorizes the 

commission to control the quality of the state's air; §382.012, concerning State Air Control Plan, 

which authorizes the commission to prepare and develop a general, comprehensive plan for the control 

of the state's air; and §382.208, concerning Attainment Program, 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. 

§115.227. Exemptions. 

The following exemptions apply: 

1 
(1) In the Beaumont/Port Arthur, Dallas/Fort Worth, El Paso, and Houston/Galveston 

areas, transfers to stationary storage tanks located at a motor vehicle fuel dispensing facility which has 

dispensed no more than 10,000 gallons of gasoline in any calendar month after January 1, 1991, and 

for which construction began prior to November 15, 1992, are exempt from the requirements of this 

division (relating to Filling of Gasoline Storage Vessels (Stage I) for Motor Vehicle Fuel Dispensing 

Facilities), except for: 

(A) §115.222(7) of this title (relating to Control Requirements); 

(B) §115.222(3) of this title as it applies to liquid gasoline leaks; 

(C) §115.224(1) of this title (relating to Inspection Requirements) as it applies 

to liquid gasoline leaks; and 

(D) §115.226(2)(B) of this title (relating to Recordkeeping Requirements). 

(2) In the covered attainment counties, as defined in§ 115.10 of this title (relating to 

Definitions), stationary gasoline. storage containers with a nominal capacity less than or equal to 1,000 

gallons at motor vehicle fuel dispensing facilities are exempt from the requirements of this division, 

except for: 

(A) §115.222(7) of this title; 

2 
(B) §115.222(3) of this title as it applies to liquid gasoline leaks; and 

(C) §115.224(1) of this title as it applies to liquid gasoline leaks. 

(3) In the covered attainment counties, transfers to stationary storage tanks located at a 

motor vehicle fuel dispensing facility which has dispensed less than 125,000 gallons of gasoline in any 

calendar month after January 1, 1999 are exempt from the requirements of this division, except for: 

(A) §115.222(7) of this title; 

(B) § 115.222(3) of this title as it applies to liquid gasoline leaks; 

(C) §115.224(1) of this title as it applies to liquid gasoline leaks; and 

(D) §115.226(2)(C) of this title. 

(4) Transfers to the following stationary receiving containers are exempt from the 

requirements of this division: -

(A) containers used exclusively for the fueling of implements of agriculture; 

and 

3 
(B) storage tanks equipped with external floating roofs, internal floating roofs, 

or their equivalent. 

4 
SUBCHAPTER C: VOLATILE ORGANIC COMPOUND TRANSFER OPERATIONS 

DIVISION 4: CONTROL OF VEHICLE REFUELING EMISSIONS (STAGE II) 

AT MOTOR VEIDCLE FUEL DISPENSING FACILITIES 

§§115.240 - 115.249 

STATUTORY AUTHORITY 

The amendments are adopted under TWC, §5.103, concerning Rules, and §5.105, concerning General 

Policy, which authorize the commission to adopt rules necessary to carry out its powers and duties 

under the TWC; and under THSC, §382.017, concerning Rules, which authorizes the commission to 

adopt rules consistent with the policy and purposes of the TCAA. The amendments are also adopted 

under THSC, §382.002, concerning Policy and Purpose, 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, concerning Gen~ral Powers and Duties, which authorizes the 

commission to control the quality of the state's air; §382.012, concerning State Air Control Plan, 

which authorizes the commission to prepare and develop a general, comprehensive plan for the control 

of the state's air; and §382.208, concerning Attainment Program, 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. 

5 
§115.240. Stage II Vapor Recovery Definitions and List of California Air Resources Board 

Certified Stage II Equipment. 

(a) The following words and terms, when used in this division, shall have the following 

meanings, unless the context clearly indicates otherwise. Additional definitions for terms used in this 

division are found in §§ 115.10, 101.1, and 3.2 of this title (relating to Definitions). 

(1) Onboard refueling vapor recovery- A system on motor vehicles designed to 

recover hydrocarbon vapors that escape during refueling. 

(2) Onboard refueling vapor recovery (ORVR) compatible - A vacuum assist Stage 

II vapor recovery system designed to prevent the ingestion of ambient air during the fueling of motor 

vehicles equipped with ORVR. 

(3) Owner or operator of a motor vehicle fuel dispensing facility - Any person who 

owns, leases, operates, or controls the motor vehicle fuel dispensing facility. 

(b) The table in the following figure is a list of the Stage II vapor recovery systems certified 

by a California Air Resources Board (CARB) Executive Order in effect as of January 1, 2002. 

Figure: 30 TAC §l15.240(b) 

6 
CARB Certified Stage II Vapor Recovery Systems in Effect as of January 1, 2002. 

CARB Executive Certified System Order Number I 

G-70-25-AA Recertification of the Atlantic Richfield Balance 

Phase II Vapor Recovery System 

G-70-33-AB Certification of the Modified Hirt VCS-200 Vacuum Assist 

Phase II Vapor Recovery System 

G-70-36-AD Modification of Certification of the OPW Balance 

Phase II Vapor Recovery System 

G-70-37-B Modification of Certification of the Chevron Balance 

Phase II Vapor Recovery System with OPW nozzles for Service 

G-70-38-AB Recertification of the Texaco Balance Phase II Vapor Recovery System 

G-70-48-AA Recertification of the Mobil Oil Balance Phase II Vapor Recovery System 

G-70-49-AA Recertification of the Union Balance Phase II Vapor Recovery System 

G-70-52-AM Certification of Components for Red Jacket, Hirt, and 

Balance Phase II Vapor Recovery System 

G-70-53-AA Recertification of the Chevron Balance Phase II Vapor Recovery System 

G-70-70-AC Certification of the Healy Phase II Vapor Recovery System for Service Station 

G-70-77 Certification of the OPW Repair/Replacement Parts and Modification 

of the Certification of the OPW Balance Phase II Vapor Recovery System 

G-70-78 Certification of the E-Z Flo Nozzle Company Rebuilt Vapor Recovery 

Nozzles and Vapor Recovery Components 

G-70-101-B Certification of the E-Z Flo Model 3006 and 3007 Vapor Recovery Nozzles 

and Use of E-Z Flo Components with OPW Models 11 VC and 11 VE 

Vapor Recovery Nozzles~· 

G-70-107 Certification of Rainbow Petroleum Products Model RA3003, 

RA3005, RA3006 and RA3007 Vapor Recovery Nozzles 

and Vapor Recovery Components 

G-70-110 Certification of Stage I and II Vapor Recovery Systems 

for Methanol Fueling Facilities 

G-70-116-F Con Vault Aboveground Tank Vapor Recovery System 

G-70-118-AB Certification of the Amoco V -1 Vapor Recovery System 

G-70-125-AA Modification of Certification of the Husky Model V Balance 

Phase II Vapor Recovery Nozzle 

7 
CARB Executive Certified System Order Number 

G-70-127 Certification of the OPW Model111-V Phase Vapor Recovery Nozzle 

G-70-128 Bryant Fuel Cell Aboveground Tank Vapor Recovery System 

G-70-130A Petrovault Aboveground Tank Vapor Recovery System 

G-70-131A Tank Vault Aboveground Tank Vapor Recovery System 

G-70-132-A Supervault Aboveground Tank Vapor Recovery System 

G-70-132-B Supervault Aboveground Tank Vapor Recovery System 

G-70-134 Certification of the E-Z Flo Rebuilt A-4000 Series and 

11 V -Series Vapor Recovery Nozzle 

G-70-136 FireSafe Aboveground Tank Vapor Recovery System 

G-70-137 FuelSafe Aboveground Tank Vapor Recovery System 

G-70-138 Phase II Vapor Recovery Systems Installed on Gasoline ·Bulk 

Plants/Dispensing Facilities with Aboveground Tanks 

G-70-139 Addition to the Certification of the Hirt Model Phase II Vapor Recovery 

System 

G-70-140-A Integral Phase I and Phase II Aboveground Configurations with the Healy . 

Phase II Vapor Recovery System 

G-70-142-B Phase I Vapor Recovery System for Aboveground Gasoline Storage Tanks 

G-70-143 PIT Vault Aboveground Tank Vapor Recovery System 

G-70-148-A Lube Cube Aboveground Tank Vapor Recovery System 

G-70-150-AE Modification to the Certification of the Marconi Commerce Systems, Inc. 

(MCS) "Formerly Gilbarco" VaporVac Phase II Vapor Recovery System 

G-70-152 Moiser BrothersTanks and Manufacturing Aboveground Tank Vapor 

Recovery System 

G-70-153-AD Modification to the Certification of the Dresser/Wayne 

Wayne Vac Phase II Vapor Recovery System 

G-70-154-AA Modification to the Certification of the Tokheim MaxVac 

Phase II Vapor Recovery System 

G-70-155 Petroleum Marketing Aboveground Tank Vapor Recovery System 

G-70-156 Ecovault Aboveground Tank Vacuum Assist Vapor Recovery System 

G-70-157 Ecovault Aboveground Tank Balance Vapor Recovery System 

8 
CARB Executive Certified System Order Number 

G-70-158-A Firesafe Aboveground Tank Vapor Recovery System 

G-70-159-AB Modification to the Certification of the Saber Nozzle 

for Use with the Gilbarco VaporVac Phase II Vapor Recovery System 

G-70-160 Above Ground Tank Vault Vapor Recovery System 

G-70-161 Hoover Containment Systems, Incorporated Aboveground Tank Vapor 

Recovery System 

G-70-162-A Steel Tank Institute Fireguard Aboveground Tank Vapor Recovery System 

G-70-163-AA Certification of the OPW VaporEZ Phase II Vapor Recovery System 

G-70-164-AA Modification to the Certification of the Hasstech VCP-3A 

Vacuum Assist Phase II Vapor Recovery System 

G-70-165 Healy Vacuum Assist Phase II Vapor Recovery System 

G-70-167 EnviroVault Aboveground Tank Vapor Recovery System 

G-70-168 Bryant Fuel Systems Phase I Vapor Recovery System 

G-70-169-AA Modification to the Certification of the Franklin Electric 

INTELLIVAC Phase II Vapor Recovery System 

G-70-170 Certification of the E-Z Flo Rebuilt 5005 and 5015 Nozzles 

for use with the Balance Phase II Vapor Recovery System 

G-70-175 Hasstech VCP-3A Vacuum Assist Phase II Vapor Recovery System for 

Aboveground Tank Systems 

G-70-177-AA Modification to the Certification of the Hirt VCS400-7 

Vacuum Assist Phase II Vapor Recovery System 

G-70-179 Certification of the Catlow ICVN-V1 Vacuum Assist 

Phase II Vapor Recovery System 

G-70-180 Order Revoking Certification of Healy Phase II Vapor Recovery 

Systems for Gasoline Dispensing Facilities 

G-70-181 Hirt VCS400-7 Bootless Nozzle Phase II Vapor Recovery System for 

Aboveground Storage Tank Systems 

G-70-183-AA Relating to Language Correction in Existing 

Executive Order G-70-183 (Healy/ Franklin System) 

G-70-186 Certification of the Healy 400 ORVR Vapor Recovery System 

G-70-187 Healy Model400 ORVR Vapor Recovery System Aboveground Tank 

Systems 

9 
CARB Executive Certified System Order Number 

G-70-188 Certification of the Catlow ICVN Vapor Recovery Nozzle System 

for use with the Gilbarco VaporVac Vapor Recovery System 

G-70-190 Guardian Containment, Corporation Armor Cast Aboveground Tank Vapor 

Recovery System 

G-70-191-AA Relating to Language Correction in Existing Executive Order 

G-70-191 (Healy 600 ORVR/800) 

G-70-192 Certification of the Healy Model400 ORVR Nozzle for Existing 

Aboveground Storage Tank Systems 

G-70-193 Certification of the Hill-Vac Vapor Recovery System for Cargo Tank Motor 

Vehicle Fueling Systems 

G-70-194 Containment Solutions Hoover Vault Aboveground Vapor Recovery System 

G-70-195 Cretex Companies, Inc FuelVault Aboveground Tank Vapor Recovery 

System 

G-70-196 Certification of the Saber Technologies, LLC 

SaberVac VR Phase II Vapor Recovery System 

G-70-197 Synchrotek Fastflo 3 Phase II Vapor Recovery System 

G-70-200 Oldcastle Aboveground Below-Grade Fuel Vault with Balance Vapor 

Recovery System and Buried Vapor Return Piping 

G-70-201 Oldcastle Aboveground Below-Grade Fuel Vault with Balance Vapor 

Recovery System and Trenched Vapor Return Piping 

G-70-202 Oldcastle Aboveground Below-Grade Fuel Vault with Gilbarco VaporVac 

Phase II Recovery System and Trenched Vapor Return Piping 

§115.241. Emission Specifications. 

No person in the counties listed in §115.249 of this title (relating to Counties and Compliance 

Schedules) shall transfer or allow the transfer of gasoline from any stationary storage container into a 

motor vehicle fuel tank, unless an approved Stage II vapor recovery system has been installed which is 

certified to reduce the emissions of volatile organic compound to the atmosphere by at least 95% . 

10 
§115.242. Control Requirements. 

For all persons in the counties listed in § 115.249 of this title (relating to Counties and 

Compliance Dates) and affected by this division (relating to Control of Vehicle Refueling Emissions 

(Stage II) at Motor Vehicle Fuel Dispensing Facilities), a vapor recovery system will be assumed to 

comply with the specified emission limitation of §115.241 ofthis title (relating to Emission 

Specifications) if the following conditions are met. 

(1) The facility is equipped with a Stage II vapor recovery system certified by a 

California Air Resources Board (CARB) Executive Order in effect as of January 1, 2002 (as specified 

in §115.240(b) of this title (relating to Stage II Vapor Recovery Definitions and List of California Air 

Resources Board Certified Stage II Equipment)); or certified by a CARB Executive Order in effect 

after January 1, 2002, except that the executive director reserves the right to continue to recognize any 

CARB Executive Orders decertified after January 1, 2002; or certified by an alternative procedure 

which meets the requirements specified in §115.243 of this title (relating to Alternate Control 

Requirements). In addition: 

(A) Stage II vapor recovery balance systems which include vapor check valves 

in a location other than the nozzle shall not be installed; 

(B) Stage II vapor recovery systems which include dual-hang (non-coaxial) 

hoses shall not be installed; and 

11 
(C) all vacuum assist Stage II vapor recovery systems must be onboard 

refueling vapor recovery (ORVR) compatible, as defined in §115.240 of this title in accordance with 

the schedules in §115.249 of this title. 

(2) All underground piping must be installed by a person holding a valid License A as 

defined in §§334.401, 334.407, 334.424 of this title (relating to License and Registration Required; 

Other Requirements for an Underground Storage Tank Container; and Other Requirements for an OnSite Supervisor). Piping specifications shall be in compliance with the applicable CARB Executive 

Order(s) for the Stage II vapor recovery system. For any facility newly constructed after November 

15, 1993, or at any facility undergoing a major modification to the Stage II vapor recovery system after 

November 15, 1993, the following requirements shall apply where piping specifications are not 

provided in the applicable CARB Executive Order(s). 

(A) All underground piping shall be constructed of rigid material and conform 

to the applicable portions of the technical standards for new piping defined by §334.45(c) and (e) of 

this title (relating to Technical Standards for New Underground Storage Tank Systems). 

(B) Noncorrodible piping or cathodically protected metallic piping shall be 

used. In the event metallic piping is used, the applicable portions of the general requirements for 

corrosion protection defined by §334.49(a)(l) - (5) and (c)(1) - (4) of this title (relating to Corrosion 

Protection) shall apply. 

12 
(C) Minimum slope on vapor piping shall be one-eighth of an inch per foot 

from the dispenser to the storage tank. Piping installed after January 1, 2002 shall not include liquid 

collection points (condensate traps) unless the associated underground storage tanks: 

(i) were installed prior to November 15, 1992; and 

(ii) are not at sufficient depth to allow for minimum slope 

requirements. 

(D) Vapor piping on balance systems shall be not less than two inches in 

diameter, and when there are more than four fueling points connected to one vapor line, the minimum 

vapor piping size shall be three inches in diameter. For the purposes of this paragraph, a single nozzle 

dispenser shall constitute one fueling point and a multi-nozzle dispenser shall constitute two fueling 

points. 

(E) Riser piping shall have a minimum inside diameter of one inch. Riser 

piping is defined as the predominantly vertically oriented vapor recovery piping that enters the gasoline 

dispenser base, which connects .the dispenser mounted piping with the buried vapor recovery piping 

that leads to one or more storage tanks. 

(F) If a fire protection agency with jurisdiction requires a vapor shear valve on 

the vapor return line at the base of a dispenser, the shear valve shall be CARE-certified and/or 

Underwriters Laboratories listed for use in vapor recovery systems. 

13 
(3) The owner or operator shall maintain the Stage II vapor recovery system in proper 

operating condition, as specified by the manufacturer and/or any applicable CARB Executive Order(s), 

and free of defects that would impair the effectiveness of the system, including, but not limited to: 

(A) absence or disconnection of any component that is a part of the approved 

system; 

(B) a vapor hose that is crimped or flattened such that the vapor passage is 

blocked, or the backpressure through the vapor system exceeds the value as certified in the approved 

system's CARB Executive Order(s); 

(C) a nozzle boot that is torn in one or more of the following ways: 

(i) a triangular-shaped or similar tear more than 0.5 inches on a side; 

(ii) a hole more than 0.5 inches in diameter; or 

.(iii) a slit more than 1.0 inch in length; 

(D) for balance nozzles, a faceplate that is damaged such that the capability to 

achieve a seal with a fill pipe interface is affected for a total of at least one-fourth of the circumference 

of the faceplate; 

14 
(E) for booted nozzles in vacuum assist type systems, a flexible cone for 

which a total of at least one-fourth of the cone is damaged or missing; 

(F) a nozzle shut-Off mechanism that malfunctions in any manner; 

(G) vapor return lines, including such components as swivels, 

anti-recirculation valves, and underground piping, that malfunction, are blocked, or are restricted such 

that the pressure decay and/or dynamic backpressure through the line exceeds the value as certified in 

the approved system's CARB Executive Order(s); 

(H) a vapor processing unit that is inoperative or defective; 

(I) a vacuum producing device that is inoperative or defective; 

(J) pressure/vacuum relief valves, vapor check valves, or Stage I dry breaks 

that are inoperative or defective; 

(K) a system monitor or printer that is malfunctioning or out of paper; 

(L) a nozzle, hose, break-away, or any other component that is not approved 

for use with the certified vapor recovery system in use; and 

15 
(M) any equipment defect that is identified in the certification of an approved 

system as substantially impairing the effectiveness of the system in reducing refueling vapor emissions. 

(4) No gasoline leaks, as detected by sampling, sight, sound, or smell, exist anywhere 

in the dispensing equipment or Stage II vapor recovery system. 

(5) Upon identification of any of the defects described in paragraphs (3) and (4) of this 

section, the owner or operator or his or her representative shall remove from service all dispensing 

equipment for which vapor recovery has been impaired. The impaired equipment shall remain out of 

service until such time as the equipment has been properly repaired, replaced, or adjusted, as 

~ecessary. Once repaired, the equipment may be returned to service by the owner or operator or his 

or her representative. 

(6) Upon identification of any of the defects described in paragraphs (3) and (4) of this 

section, any inspector with jurisdiction shall tag the impaired equipment out-of-order. The 

"Out-of-Order" tag shall state "use of this device is prohibited under state law, and unauthorized 

removal of this tag or use of this equipment will constitute a violation of the law punishable by a 

maximum civil penalty of up to.$25,000 per day or a maximum criminal penalty of $50,000 and/or up 

to 180 days in jail." The impaired equipment shall remain out of service until such time as the 

equipment has been properly repaired, replaced, or adjusted, as necessary. Once repairs are 

completed, the "Out-of-Order" tag may be removed, and the equipment shall be returned to service by 

the owner or operator or facility representative upon notification to the agency that originally tagged 

the equipment out-of-service in the following manner: verbal notification prior to placing the 

16 
equipment back in service followed by written notification received by the agency within ten days of 

placing the equipment back in service. For the purposes of this paragraph, "facility representative" has 

the meaning ascribed to it in §115.248(1) of this title (relating to Training Requirements). 

(7) No person shall repair, modify, or permit the repair or modification of the Stage II 

vapor recovery system or its components such that they are different from their approved 

configuration, and only original equipment manufacturer (OEM) parts or CARE-certified non-OEM 

aftermarket parts shall be used as replacement parts. 

(8) No person shall tamper with, or permit tampering with, any part of the Stage II 

vapor recovery system in a manner that would impair the operation or effectiveness of the system. 

(9) The owner or operator of a motor vehicle fuel dispensing facility shall post 

operating instructions conspicuously on the front of each gasoline dispensing pump equipped with a 

Stage II vapor recovery system. These instructions shall, at a minimum, include: 

(A) a clear description of how to correctly dispense gasoline using the system; 

and 

(B) a warning against attempting to continue to refuel after initial automatic 

shutoff of the system (an indication that the vehicle fuel tank is full). 

17 
( 10) Any motor vehicle fuel dispensing facility that becomes subject to the provisions 

of this division by exceeding the throughput limits of §115.247 of this title (relating to Exemptions) 

shall have 120 days to come into compliance and will remain subject to the provisions of this division 

even if its gasoline throughput later falls below throughput limits, except that: 

(A) at a facility exempted under §115.247(2) of this title for which an 

exceedance occurred between January 1, 1991, and November 15, 1992, the owner or operator may 

petition the executive director to permit a continuance of the facility's exempt status provided that the 

average monthly throughput calculated from January 1, 1991, to November 15, 1992, remained below 

10,000 gallons. If exempt status is continued by the executive director, the annual verification of 

exempt status as required in §115.247(2) of this title must be fulfilled; and 

(B) at a facility exempted under § 115.247(2) of this title for which an 

exceedance occurred for any consecutive 30-day period due to an emergency condition or natural 

disaster after November 15, 1992, the owner or operator may petition the executive director to permit 

the continuance of the facility's exempt status or extended compliance schedule status. If exempt status 

is continued by the executive director, the requirement of annual verification of the status as stated in 

§115.247(2) of this title must be.fulfilled. 

(11) Any facility having installed Stage II vapor recovery system(s) or component(s) 

previously certified by CARB via an Executive Order, for which certification was revoked by CARB, 

prior to January 1, 2002, must install and have operational an approved system(s) or component(s) as 

referenced in paragraph (1) of this section as soon as practicable, but no later than September 1, 2006. 

18 
(12) After November 15, 1993, the owner or operator shall provide written 

notification of any Stage II vapor recovery system installation to the appropriate regional office and any 

local air pollution program at least 30 days prior to start of construction. The information in the 

notification shall include, but is not limited to: 

(A) facility name, location (physical and mailing address); name, address, and 

phone number of owner(s) and operator(s); name and phone number of owner's representative; name, 

address, and phone number of contractor(s); and the Petroleum Storage Tank Facility ID number and 

Owner ID number (if known); 

(B) proposed start date; and 

(C) type of Stage II system to be installed, including CARB Executive Order 

number(s) and the number of gasoline nozzles at the facility. 

§115.243. Alternate Control Requirements. 

Alternate methods of complying with §115.242(1) of this title (relating to Control 

Requirements) may be approved by the executive director if: 

( 1) emission reductions are demonstrated to be equivalent or greater than those 

afforded by the requirements in § 115 .242(1) of this title; and 

19 
(2) the Stage II vapor recovery system is capable of meeting the applicable 

performance requirements prescribed in this division (relating to Control of Vehicle Refueling 

Emissions (Stage II) at Motor Vehicle Fuel Dispensing Facilities), as verified by third-party evaluation 

conducted by a qualified independent testing organization using a code or standard of practice, 

acceptable to the executive director, which has been developed by a nationally recognized agency, 

association, or independent testing laboratory. 

§115.244. Inspection Requirements. 

The owner or operator of any motor vehicle fuel dispensing facility subject to the control 

requirements of this division (relating to Control of Vehicle Refueling Emissions (Stage II) at Motor 

Vehicle Fuel Dispensing Facilities) shall conduct daily inspections of the Stage II vapor recovery 

system for the defects specified in §115.242(3) and (4) of this title (relating to Control Requirements) 

as follows. 

(1) For all systems, the daily inspections shall include the applicable portions of 

§115.242(3)(A)- (F), (H), and (K), and (4) of this,title. 

(2) For assist systems that use a processor, indicating mechanisms designed by the 

Stage II vapor recovery equipment manufacturer to verify proper operation shall be inspected daily. 

Examples of these indicating mechanisms include flame detection sensors, remote (from the processor) 

visual or audible displays indicating system operation, or other means as described in the applicable 

Executive Order for the system. 

20 
(3) For all systems, the components listed in §115. 242(3)(1) of this title shall be 

inspected at least monthly. 

(4) For all systems, the components listed in §115.242(3)(0) of this title shall be 

inspected at least annually. 

§115.245. Testing Requirements. 

For all affected persons, compliance with §115.241 and §115.242 of this title (relating to 

Emission Specifications and Control Requirements) shall be determined at each facility within 30 days 

of installation of the Stage II equipment by testing as follows. 

(1) Stage II vapor recovery systems shall successfully meet the performance criteria 

proper to the system by successfully completing the following testing requirements using the test 

procedures as found in the Vapor Recovery Test Procedures Handbook (test procedures handbook) 

(RG-399, November 2002). 

(A) For- balance and assist systems: 

(i} the manifolding or interconnectivity of the vapor space shall be 

consistent with the Executive Order requirements for the installed system; 

21 
(ii) the sum of the vapor leaks in the system shall not exceed 

acceptable limits for the system as defined in the pressure decay test; 

(iii) the maximum acceptable backpressure through a given vapor path 

shall not exceed the limits as found in the backpressure/liquid blockage test applicable for the vapor 

path for the system; and 

(iv) the maximum gasoline flow rate through the nozzle shall not 

exceed the limits found in the Executive Order or third-party certification for the system. 

(B) For bootless nozzle assist systems, the volume-to-liquid ratio (V/L ratio) 

or air-to-liquid ratio (A/L ratio) shall be within acceptable limits. 

(C) Each system shall meet minimum performance criteria specific to the 

individual system as defined in the California Air Resources Board Executive Order. The criteria and 

test methods contained in the test procedures handbook specified in paragraph ( 1) of this section shall 

take precedence for applicable tests where performance criteria exist in both the Executive Order and 

the test procedures handbook; otherwise, the Executive Order specific criteria shall take precedence. 

(D) The owner or operator, or his or her representative, shall provide written 

notification to the appropriate regional office and any local air pollution program with jurisdiction of 

the testing date and who will conduct the test. The notification must be received by the appropriate 

regional office and any local air pollution program with jurisdiction at least ten working days in 

22 
advance of the test, and the notification must contain the information and be in the format as found in 

the test procedures handbook. Notification may take the form of a facsimile or telecopier transmission, 

as long as the facsimile is received by the appropriate regional office and any local air pollution 

program with jurisdiction at least ten working days prior to the test and it is followed up within two 

weeks of the transmission with a written notification. The owner or operator, or his or her 

representative, shall give at least 24-hour notification to the appropriate regional office and any local 

air pollution program with jurisdiction if a scheduled test is cancelled. In the event that the test 

cancellation is not anticipated prior to 24 hours before the scheduled test, the owner or operator, or his 

or her representative, shall notify the appropriate regional office and any local air pollution program 

with jurisdiction as soon in advance of the scheduled test as is practicable. 

(2) Verification of proper operation of the Stage II equipment shall be performed in 

accordance with the test procedures referenced in paragraph ( 1) of this section at least once every 

twelve months or upon major system replacement or modification, whichever occurs first. The 

verification shall include all functional tests that were required for the initial system test, except for 

TXP-1 01, Determination of Vapor Space Manifolding of Vapor Recovery Systems at Gasoline 

Dispensing Facilities, and TXP-103, Determination of Dynamic Pressure Performance (Dynamic BackPressure) of Vapor Recovery Systems at Gasoline Dispensing Facilities, which must be performed at 

least once every 36 months. The owner or operator, or his or her representative, shall provide written 

notification to the appropriate regional office and any local air pollution program with jurisdiction of 

the testing date and who will conduct the test. The notification must be received by the appropriate 

regional office and any local air pollution program with jurisdiction at least ten working days in 

advance of the test, and the notification must contain the information and be in the format as found in 

23 
the test procedures handbook. Notification may take the form of a facsimile or telecopier transmission, 

as long as the facsimile is received by the appropriate regional office and any local air pollution 

program with jurisdiction at least ten working days prior to the test and it is followed up within two 

weeks of the transmission with a written notification. The owner or operator, or his or her 

representative, shall give at least 24-hour notification to the appropriate regional office and any local 

air pollution program with jurisdiction if a scheduled test is cancelled. In the event that the test 

cancellation is not anticipated prior to 24 hours before the scheduled test, the owner or operator, or his 

or her representative, shall notify the appropriate regional office and any local air pollution program 

with jurisdiction as soon in advance of the scheduled test as is practicable. For the purposes of this 

paragraph, a major system replacement or modification is defined as: 

(A) the repair or replacement of any stationary storage tank equipped with a 

Stage II vapor recovery system; 

(B) the replacement of an existing CARB-certified Stage II vapor recovery 

system with a system certified by CARB under a different CARB Executive Order, or certified by an 

approved third party under a third-party certification; 

(C) the repair or replacement of any part of a piping system attached to a 

stationary storage tank equipped with a Stage II vapor recovery system, excluding the repair or 

replacement of piping which is accessible for such repair or replacement without excavation or 

modification of the vapor recovery equipment; or 

24 
(D) the replacement of at least one fuel dispenser. 

(3) Minor modifications of these test methods may be approved by the executive 

director. 

(4) All required tests shall be conducted either in the presence of a Texas Commission 

on Environmental Quality or local program inspector with jurisdiction, or by a person who is registered 

with the executive director to conduct Stage II vapor recovery tests. The requirement to be registered 

shall begin on November 15, 1993, or 60 days after the executive director has established the registry, 

whichever occurs later. The executive director may remove an individual from the registry of testers 

for any of the following causes: 

(A) the executive director can demonstrate that the individual has failed to 

conduct the test(s) properly in at least three separate instances; or 

(B) the individual falsifies test results for tests conducted to fulfill the 

requirements of this section. 

(5) The owner or operator, or his or her representative, shall submit the results of all 

tests required by this section to the appropriate regional office and any local air pollution control 

program with jurisdiction within ten working days of the completion of the test(s) using the format 

specified in the test procedures handbook. For purposes of on-site recordkeeping, the Test Procedures 

Results Cover Sheet, properly completed with the summary of the testing, is acceptable. The detailed 

25 
results from each test conducted along with a properly completed summary sheet, as provided for in 

the test procedures handbook, shall be submitted to the appropriate regional office and any local air 

pollution control program with jurisdiction. 

§115.246. Recordkeeping Requirements. 

The owner or operator of any motor vehicle fuel dispensing facility subject to the control 

requirements of this division (relating to Control of Vehicle Refueling Emissions (Stage II) at Motor 

Vehicle Fuel Dispensing Facilities) shall maintain the following records: 

(1) a copy of the California Air Resources Board (CARB) Executive Order(s) or thirdparty certification(s) for the Stage II vapor recovery system and any related components installed at the 

facility; 

(2) a copy of any owner or operator request for executive director approval under 

§ 115.243 of this title (relating to Alternate Control Requirements) and any executive director approval 

issued under §115.243 of this title; 

(3) a record of any maintenance conducted on any part of the Stage II equipment, 

including a general part description, the date and time the equipment was taken out of service, the date 

of repair or replacement, the replacement part manufacturer's information, a general description of the 

part location in the system (e.g., pump or nozzle number, etc.), and a description of the problem; 

26 
( 4) proof of attendance and completion of the training specified in § 115.248 of this 

title (relating to Training Requirements), with the documentation of all Stage II training for each 

employee to be maintained as long as that employee continues to work at the facility; 

(5) a record of the results of testing conducted at the motor vehicle fuel dispensing 

facility in accordance with the provisions specified in §115.245 of this title (relating to Testing 

Requirements); 

( 6) a record of the results of the daily inspections conducted at the motor vehicle fuel 

dispensing facility in accordance with the provisions specified in §115.244 of this title (relating to 

Inspection Requirements); and 

(7) all records shall be maintained for at least two years, except that the CARB 

Executive Order(s) or third-party certification(s) specified in paragraph (1) of this section, any 

applicable alternate method of control requirement approval specified in paragraph (2) of this section, 

and testing results specified in paragraph (5) of this section shall be kept on-site indefinitely. These 

records shall be: ·':' 

(A) kept on-site at facilities ordinarily manned during business hours, and 

made immediately available for review upon request by authorized representatives of the executive 

director, EPA, or any local air pollution control program with jurisdiction; or 

27 
(B) for facilities unmanned at the time of inspection, made available at the site 

within 48 hours after being requested by authorized representatives of the executive director, EPA, or 

any local air pollution control program with jurisdiction. 

§115.247. Exemptions. 

The following are exempt from the requirements of this division (relating to Control of Vehicle 

Refueling Emissions (Stage II) at Motor Vehicle Fuel Dispensing Facilities): 

(1) gasoline dispensing equipment used exclusively for the fueling of aircraft, 

watercraft, or implements of agriculture; and 

(2) any motor vehicle fuel dispensing facility for which construction began prior to 

November 15, 1992, and which has a monthly throughput of less than 10,000 gallons of gasoline. For 

the purposes of this paragraph, the monthly throughput shall be based on the maximum monthly . 

gasoline throughput for any calendar month after January 1, 1991. To maintain a facility's exempt 

status under this paragraph, the owner or operator must submit the facility's monthly gasoline 

throughput on an annual basis no later than January 31 of each year to the executive director or 

designated representative. 

28 
§115.248. Training Requirements. 

For all persons affected by this division (relating to Control of Vehicle Refueling Emissions 

(Stage II) at Motor Vehicle Fuel Dispensing Facilities), the following training requirements apply. 

( 1) The owner or operator of a motor vehicle fuel dispensing facility shall ensure that 

at least one facility representative receive training and instruction in the operation and maintenance of 

the Stage II vapor recovery system by successfully completing a training course approved by the 

executive director. Successful completion shall constitute certification of the facility representative. 

Each such facility representative is then responsible for making every current and future employee 

aware of the purposes and correct operating procedures of the system. The required training shall be 

completed as soon as practicable prior to the initiation of operation of the facility's Stage II equipment. 

The following additional requirements apply to the designation of the facility representative. 

(A) For normally unattended facilities such as unattended card-lock facilities, 

or for normally unattended refueling facilities not open to the public, a single person may fulfill the 

facility representative role at more than one facility. 

(B) For facilities normally attended, a single person shall not fulfill the facility 

representative role at more than one facility at a time. 

29 
(2) If the facility representative who received the approved training is no longer 

employed at that facility, another facility representative must successfully complete approved training 

within three months of the departure of the previously trained employee. 

(3) An approved training course will include, but is not limited to, the following: 

(A) federal and state Stage I and Stage II regulations (including enforcement 

consequences of noncompliance) and vapor recovery health effects and benefits; 

(B) equipment operation and function of each type of vapor recovery system; 

(C) general overview of maintenance schedules and requirements for Stage II 

vapor recovery equipment; 

(D) general overview of structure and content of California Air Resources 

Board (CARB) Executive Orders; and 

(E) recordkeeping and inspection requirements for Stage I and Stage II vapor 

recovery systems. 

( 4) The executive director may revoke approval of a training course if the training 

provider: 

30 
(A) fails to administer the training course as proposed in the application made 

to the executive director to provide such training; or 

(B) fails to notify the executive director of upcoming courses in writing at least 

21 days prior to the date of the training as to the date, time, and place the training is to be held, or in 

the event of a scheduled course cancellation, fails to notify the executive director at least 24 hours in 

advance of the cancellation, except: 

(i) for all training providers, if conditions exist such that 24-hour 

notice of course cancellation is impossible or impracticable, notice must be given to the executive 

director as soon as practicable, preferably prior to the time the course was originally scheduled; and 

(ii) for training courses provided at no charge to the persons who 

attend, such as company-provided inhouse training, the 21-day advance notice shall not apply, and 

advance notice of upcoming courses is only required when such notice is requested, in writing, by the 

executive director. 

§115.249. Counties and Compliance Schedules. 

(a) The rules in this division (relating to Control of Vehicle Refueling Emissions (Stage II) at 

Motor Vehicle Fuel Dispensing Facilities) apply to affected persons in Brazoria, Chambers, Collin, 

Dallas, Denton, El Paso, Fort Bend, Galveston, Harris, Hardin, Jefferson, Liberty, Montgomery, 

Orange, Tarrant, and Waller Counties. 

31 
(b) All affected persons shall continue to comply with this division as required by § 115.930 of 

this title (relating to Compliance Dates). 

(c) All vacuum assist Stage II vapor recovery systems must be onboard refueling vapor 

recovery (ORVR) compatible according to the following schedules: 

(1) all installations of vacuum assist Stage II vapor recovery systems installed on or 

after Aprill, 2005, must be ORVR compatible; and 

(2) all vacuum assist Stage II vapor recovery systems installed before April1, 2005, 

must be upgraded to an ORVR compatible system no later than Aprill, 2007. 

32 
REVISIONS TO THE STATE IMPLEMENTATION PLAN (SIP) 

FOR THE CONTROL OF OZONE AIR POLLUTION 

STAGE II VAPOR RECOVERY PROGRAM SIP REVISION 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

P.O. BOX 13087 

AUSTIN, TEXAS 78711-3087 

RULE LOG NUMBER 2002-012-SIP-AI 

November 6, 2002 

------------~---- - ---
SECTION VI. CONTROL STRATEGY 

A Introduction (No change.) 

B. Ozone (Revised) 

1. Dallas/Fort Worth (No change.) J 

2. Houston/Galveston (No change.) 

3. Beaumont/Port Arthur (No change.) 

4. El Paso (No change.) 

5. Regional Strategies (No change.) 

6. Stage II Vapor Recovery Program (New) 

C. Particulate Matter (No change.) 

D. Carbon Monoxide (No change.) 

E. Lead (No change.) 

F. Oxides ofNitrogen (No change.) 

G. Sulfur Dioxide (No change.) 

H. Conformity with National Ambient Air Quality Standards (No change.) 

I. Site Specific (No change.) 

J. Mobile Sources Strategies (No change.) 

11 
THESTAGEllVAPORRECOVERYPROGRAM 

TABLE OF CONTENTS 

Chapter 1: General 

1.1 Background 

1.2 Public Hearing Information 

1.3 Social and Economic Considerations 

1.4 Fiscal and Human Resources 

Chapter 2: Applicability 

Chapter 3: Certification of App~oved Vapor Recovery Systems 

Chapter 4: Training 

Chapter 5: Public Information 

Chapter 6: Facility Recordkeeping 

Chapter 7: TCEQ Recordkeeping 

Chapter 8: Equipment Installation and Testing 

Chapter 9: TCEQ Investigations 

Chapter 10: Program Penalties 

111 
THESTAGEIIVAPORRECOVERYPROGRAM 

DEFINITIONS 

Motor vehicle refueling facility - Any site where gasoline is transferred from a stationary storage tank 

to a motor vehicle fuel tank used to provide fuel to the engine of that motor vehicle. 

Onboard refueling vapor recovery (ORVR) - A system on motor vehicles designed to recover 

hydrocarbon vapors that escape during refueling. 

Onboard refueling vapor recovery (ORVR) compatible - A vacuum assist Stage II vapor recovery 

system designed to prevent the ingestion of ambient air during the fueling of motor vehicles with ORVR. 

Owner or operator of a motor vehicle fuel dispensing facility - Any person who owns, leases, 

operates, or controls the motor vehicle fuel dispensing facility. 

Vapor recovery systems- Systems designed to control the vapors generated during the vehicle refueling 

process. 

IV 
CHAPTER!: GENERAL 

l.lBACKGROUND 

The 1990 Amendments to the Federal Clean Air Act (FCAA) authorized the U.S. Environmental 

Protection Agency (EPA) to designate areas failing to meet the national ambient air quality standard for 

ozone as nonattainment and to classify them according to degree of severity. There are four such areas in 

Texas, including Houston/Galveston, Beaumont/Port Arthur, El Paso, and Dallas/Fort Worth ozone 

nonattainment areas. States were required to submit a revision to the SIP no later than November 15, 

1992, which includes a Stage ll vapor recovery program to control gasoline vapors from the refueling of 

motor vehicles. 

The Stage ll vapor recovery program involves use of technology that prevents gasoline vapors from 

escaping during refueling. Gasoline vapors are volatile organic compounds which react with nitrogen 

oxides in the presence of sunlight to form ozone. As part of the control strategy for ozone attainment, the 

EPA mandates that Stage ll refueling requirements apply to all public and private refueling facilities 

dispensing 10,000 gallons or more of gasoline per month. The federal throughput constitutes a minimum 

threshold, but a state may be more stringent in adopting a throughput standard. The Texas Commission 

on Environmental Quality (TCEQ or commission) applies a more stringent throughput standard in the 

sixteen ozone nonattainment counties by requiring all facilities constructed after November 15, 1992 to 

install Stage ll vapor recovery regardless of throughput. 

In compliance with the FCAA, EPA issued enforcement guidance dated October 1991 and technical 

guidance dated November 1991. EPA published the following technical guidance documents for states to 

use in developing their Stage II program: 

a. Technical Guidance- Stage ll Vapor Recovery Systems for Control of Vehicle Refueling 

Emissions at Gasoline Dispensing Facilities, Volume 1: Chapters (EPA-450/3-91-022a). 

b. Technical Guidance- Stage II Vapor Recovery Systems for Control of Vehicle Refueling 

Emissions at (Jasoline Dispensing Facilities, Volume II: Appendices (EPA-450/3-91-022b). 

" 

A Stage II vapor recovery SIP was first approved in Texas on October 16, 1992, and later revised on 

November 10, 1993. These S:q> revisions satisfied requirements outlined in the aforementioned EPA 

guidance documents. 

The original Stage II vapor recovery rules relied upon the California Air Resources Board (CARB) 

certification procedures for vapor recovery equipment. The CARB is currently implementing an 

enhanced vapor recovery (EVR) program with a completion date of April 2003, after which they will no 

longer certify non-EVR systems. In response, the current SIP revision enacts a requirement for more 

frequent testing of vapor recovery systems at gasoline dispensing facilities as well as a phase-in schedule 

to retrofit and/or install ORVR compatible Stage ll vapor recovery systems, in lieu of the CARB EVR 

program. 

When unannounced investigations are performed, the proper operation and maintenance of Stage II vapor 

recovery has demonstrated an in-use efficiency of approximately 84% for the 10,000 gallon/month 

exemption level of the commission's Stage II rules. Therefore, these controls are expected to result in 

1-1 
significant reductions in VOC emissions from gasoline refueling facilities, as well as reduced public 

exposure to known human carcinogens such as benzene and other toxic emissions. Estimates of actual 

emission reductions are included in the Rate-of-Progress SIP adopted on November 10, 1993 and the 

updated Rate-of-Progress SIP adopted on July 24, 1996. 

1.2 PUBLIC HEARING INFORMATION 

The commission held a public hearing at the following time and location: 

CITY DATE TIME LOCATION 

Austin August 8, 2002 2:00p.m. Building F, Room 2210 

12100 Park 35 Circle 

Written comments were also accepted via mail and fax through August 12, 2002. 

1.3 SOCIAL AND ECONOMIC CONSIDERATIONS 

For a detailed explanation of the social and economic issues involved please refer to the preamble that 

precedes the rule package accompanying this SIP. 

1.4 FISCAL AND HUMAN RESOURCES 

The state has determined that its fiscal and human resources are adequate and will not be adversely 

affected through implementation of this plan. 

1-2 
CHAPTER 2: APPLICABILITY 

EPA guidelines require applicability to be determined by calculating the average monthly volume of 

gasoline dispensed at a facility over the two-year period prior to the state's adoption of Stage ll 

requirements. In the event a facility has been inactive for any period during the proposed calculation 

period, the state shall extend the period to include two full years of data. 

For improved enforceability, the commission has opted to determine the monthly throughput based upon 

the maximum monthly gasoline throughput for any calendar month after January 1, 1991. The 

commission shall determine as accurately as possible which facilities must comply with Stage ll program 

requirements. When needed, the commission will coordinate with other state agencies involved in 

regulating refueling facilities to ensure an accurate identification of all such facilities. Next, the 

commission shall develop and maintain a computerized database to track facilities in the regulated 

community. Finally, the commission shall establish a method for ensuring that facilities, which were 

initially exempt from these regulations due to low throughput, are in compliance with Stage ll 

requirements at such time that their gasoline throughput exceeds the exemption level specified in 

§ 115.247, based upon either facility investigations or emissions inventory data. 

2-1 
CHAPTER 3: CERTIFICATION OF APPROVED VAPOR RECOVERY SYSTEMS 

The EPA requires that all Stage II vapor recovery systems be capable of achieving at least 95 percent 

vapor control efficiency. The commission believes that verification ofproper operation of Stage II 

equipment every 12 months (rather than five years) will increase the actual in-use efficiency of vapor 

recovery systems and better ensure a vapor recovery rate of 95 percent. However, the commission also 

believes that the TXP-lOlvapor space manifold test and the TXP-103 dynamic back-pressure test in the 

Vapor Recovery Test Procedures Handbook (test procedures handbook) should be required every 36 

months. Furthermore, the state will continue to ensure that each system is tested for proper installation. 

The commission will not approve vapor recovery systems which include remote vapor check valves in 

balance systems. In addition, all balance vapor recovery systems must include coaxial hoses. The 

commission will only approve original equipment manufacturer (OEM) rebuilt nozzles, and all existing 

dispenser pumps shall be retrofit with OEM parts or agency approved, third-party certified non-OEM 

aftermarket parts. Only Stage II vapor recovery systems that are onboard refueling vapor recovery 

(ORVR) compatible will be approved for Stage II vapor recovery systems installed after Aprill, 2005 

and all existing Stage II vapor recovery systems must be ORVR compatible no later than April 1, 2007. 

,,.;. 

3-1 
CHAPTER4: T~NG 

· EPA guidelines require the state to provide or approve training for Stage II investigators and at least one 

owner/operator from each facility. Investigator training must be effective in presenting all Stage II 

requirements and procedures. As needed, periodic updates to the training will be provided in order to 

reflect all technological and programmatic changes. The training program for investigators shall consist 

of classroom and practical training and shall include information on the purpose and effects of Stage II, 

the types of Stage II systems, acceptable components, methods for identifying system configurations, and 

how to identify failures. A written and practical test to verify proficiency will be required for 

investigators. Each investigator must meet a minimum standard of proficiency on each test in order to 

successfully complete the training course. 

Owner/operator training must provide instruction on the proper operation and maintenance of Stage II 

equipment. Literature and equipment necessary to facilitate training will be provided by an approved 

training provider. As needed, periodic updates to the training will be provided in order to reflect all 

technological and programmatic changes. At least one owner/operator from each regulated facility shall 

be required to successfully complete a training course. 

An approved training course will include the following elements in all training programs offered to 

facility owners/operators: 

1) federal and state Stage I and Stage II statutes, regulations (including enforcement 

consequences of noncompliance), and vapor recovery health effects and benefits; 

2) equipment operation and function of each type of vapor recovery system; 

3) general overview of maintenance schedules and requirements for Stage II vapor 

recovery equipment; 

4) general overview of structure and content of CARB Executive Orders and approved 

third-party certifications; and 

5) recordkeeping and investigation requirements for Stage I and Stage II vapor recovery 

systems. 

4-1 
CHAPTER 5: PUBLIC INFORMATION 

The commission shall develop and provide information to regulated facilities stating the general purpose 

and benefit of the Stage ll vapor recovery program; specific program requirements; enforcement 

consequences of noncompliance; and information about the commission, such as office address (regional 

and headquarters) and phone numbers. 

The commission shall establish public awareness information for general distribution to the public stating 

the purposes and benefits of the Stage ll program, including those benefits to human health, the 

environment, and safety. The information shall include a basic description of how the vapor recovery 

system functions, operational procedures for refueling, and information about the commission, such as 

office address (regional and headquarters), phone numbers, and any other information that will facilitate 

the public's comments, questions, or complaints about the program or a particular facility. 

5-1 
CHAPTER 6: FACILITY RECORDKEEPING 

The commission shall provide guidance to facilities regarding all recordkeeping requirements. All 

facilities will be required to maintain Stage II vapor recovery records for the purpose of verifying 

compliance. The commission will review each facility's records to ensure that all initial and annual 

testing was successfully completed and that all maintenance, investigation, and training records are 

properly documented and available for review. The presence of applicable vapor recovery system 

certification documentation (CARB Executive Order or approved third-party certification) will also be 

ensured. The commission will develop examples of the necessary forms each facility owner or operator 

will need in order to comply with all recordkeeping requirements. 

6-1 
CHAPTER 7: TCEQ RECORDKEEPING 

The commission shall maintain a general station file (compliance file) denoting the facility name, 

address, phone number, owner/operator names, a commission assigned account number, system 

installation date, and other relevant information. In the case of facilities which are exempt, monthly 

gasoline throughput records shall also be kept. The commission shall maintain a file on all station 

investigations by assigned account number. In compliance with EPA guidelines, the reports will be filed 

in each facility's compliance file in chronological order and will include the date of investigation; the 

investigator's name, identification number, and signature; findings at investigation; follow-up action to be 

performed; and a notation of violations. Documentation of all enforcement action taken against each 

facility will be maintained in the commission compliance file for each facility. The compliance files may 

be kept electronically. All station records maintained by the commission shall be made available to the 

public upon request. 

7-1 
CHAPTER 8: EQUIPMENT INSTALLATION AND TESTING 

Each facility must install equipment that meets all Stage II and other related regulations. The 

commission shall verify that each facility complies with these regulations: 

a. Functional testing shall be performed at the facility's expense. 

b. The owner or operator shall successfully complete all tests required to determine compliance 

upon initial system startup and every twelve months thereafter, with the exception of the TXP-101 vapor 

space manifold test and the TXP-1 03 dynamic back-pressure test which will be required every 36 

months. System testing will also be required following major system replacement or modification. All 

tests shall be conducted according to the applicable portions of The Texas Commission on 

Environmental Quality Vapor Recovery Test Procedures Handbook. Any new, alternative, or equivalent 

testing methods and procedures, not approved by CARB, which are developed or approved by the 

commission shall be submitted to EPA for approval in the SIP or other EPA concurrence procedure. 

c. The owner or operator required to conduct test(s) on the system or system components shall 

notify the appropriate regional office and any local air pollution program with jurisdiction in writing at 

least ten working days in advance of the test of when, where, by whom, and which tests will be 

conducted. The owner or operator shall submit the results of the test(s) to the appropriate regional office 

and any local air pollution program with jurisdiction within ten working days of completion of the tests. 

d. The commission shall allow only OEM parts or CARB-certified or agency approved thirdparty certified non-OEM aftermarket parts to be used as replacement parts. 

8-1 
CHAPTER 9: TCEQ INVESTIGATIONS 

The commission shall perform on-site investigations in conjunction with an annual system test at each 

regulated facility at least once in every five year period. At such time, the commission shall verity that 

all equipment meets configuration requirements and that the system operates within parameters 

established during certification. Based on data gathered during a pilot program conducted in the 

Houston-Galveston and Dallas-Fort Worth non-attainment regions and summarized in a final report dated 

October 30, 2001, it is evident that investigations conducted in conjunction with a vapor recovery system 

testing event better enable investigators to evaluate the performance of each individual system. 

In addition, routine investigations of record-keeping and above-ground equipment shall also be 

conducted at between five and twenty-five percent of all facilities each year. These unannounced, 

routine investigations will serve to maintain the element of surprise and to provide a mechanism for 

investigating citizen complaints. During an investigation, the commission investigator, at a minimum, 

shall: 

a. verity compliance with all Stage I equipment requirements regarding control of vapors from 

the filling of storage tanks at motor vehicle refueling facilities; 

b. observe the use of the equipment by either the facility operator or the general public; 

c. inspect facility files to ensure they comply with all recordkeeping requirements; and 

d. review the required results of testing conducted on the vapor recovery system. 

If a nonclerical violation is detected at any facility, the commission shall conduct a follow-up 

investigation as needed. 

9-1 
CHAPTER 10: PROGRAM PENALTIES 

The commission shall establish a penalty schedule, as required by EPA, designed to deter 

noncompliance. Violations of these regulations may result in administrative penalties of up to $10,000 

per day per violation and civil penalties of up to $25,000 per day per violation. The commission shall: 

a. issue a notice of violation to the owner/operator of a refueling facility upon confirmation of a 

violation of any rule related to Stage I or IT vapor recovery. A follow-up investigation shall be conducted 

as necessary; 

b. prohibit the continued dispensing of fuel, if the violation is equipment related, until such time 

any violation is corrected and the commission notified of the correction; 

c. not consider any equipment clearly tagged by the owner/ operator as out-of-order as a 

violation; and 

d. have the authority to label any noncompliant equipment as "out of order" until necessary 

repairs are made. 

10-1 
TEXAS NATURAL REsouRcE CoNSERVATION CoMMISSION 

TH;: :~~·fr~~,~,: <)i ~,~ .. :x~lS 

CCUNT'1 c;: If.{;- ll!b 

I hereby C'Jrti~ )' ~ ~ctthiS i:; J true and COITC r, ut a 

Texas CommissiJn on Environmental Quat:' .Jcument, 

wh::h is filed in the permanent records of th-:o Commission. 

Given un er my hand and the seal of office c.;l 

ln. onn3 Cf'~tanuc!a, Chief Clerk 

ORDER ADOPTING AMENDED'RuL~~~~ Environmental Quality 

REVISIONS TO THE STATE IMPLEMENTATION PLAN 

Docket No. 2002-0411-RUL 

On November 6, 2002, the Texas Commission on Environmental Quality (Commission), during 

a public meeting, considered adoption of amended §§115.227 and 115.240- 115.249. The Commission 

adopts these amendments, in Chapter 115, Control of Air Pollution from Volatile Organic Compounds; 

Subchapter C, Volatile Organic Compound Transfer Operations; Division 2, Filling of Gasoline Storage 

Vessels (Stage I) for Motor Vehicle Fuel Dispensing Facilities; and Division 4, Control of Vehicle 

Refueling Emissions (Stage II) at Motor Vehicle Fuel Dispensing Facilities; and corresponding revisions 

to the state implementation plan (SIP). These amendments require more frequent testing of vapor 

recovery systems at gasoline dispensing facilities in lieu of adopting the California Enhanced Vapor 

Recovery (EVR) program rules, while continuing to maintain the federal requirement for a 95% vapor 

recovery rate. The amendments also require that Stage II vapor recovery systems be compatible with 

onboard refueling vapor recovery equipment mandated by the federal government. Under Tex. Health 

& Safety Code Ann. §§382.011, 382.012, and 382..023 (Vernon 2001), the Commission has the 

authority to control the quality of the state's air and to issue orders consistent with the policies and 

purposes of the Texas Clean Air Act, Chapter 382 of the Tex. Health & Safety Code. The proposed 

rules were published for comment in the July 12, 2002 issue of the Texas Register (27 TexReg 6197). 

Pursuant to Tex. Health & Safety Code Ann. §382.017 (Vernon 2001), Tex. Gov't Code 

Chapter 2001 (Vernon 2000 & Vernon Supp. 2002) and 40 Code of Federal Regulations §51.102 and 

after proper notice, the Commission conducted a public hearing to consider the amendments and 

revisions to the SIP. Proper notice included prominent advertisement in the areas affected at least 30 

days prior to the date of the hearing. A public hearing was held in Austin on August 8, 2002. 

The Commission circulated hearing notices of its intended action to the public, including 

interested persons, the Regional Administrator of the EPA, and all applicable local air pollution control 

agencies. The public was invited to submit data, views, and recommendations on the proposed 

amended rules and SIP revisions, either orally or in writing, at the hearing or during the comment 

period. Prior to the scheduled hearing, copies of the proposed amended rules and SIP revisions were 

available for public inspection at the Commission's central office and regional offices. 

Data, views, and recommendations of interested persons regarding the proposed amended rules 

and SIP revisions were submitted to the Commission during the comment period, and were considered 

by the Commission as reflected in the analysis of testimony incorporated by reference to this Order. 

The Commission finds that the analysis of testimony includes the names of all interested groups or 

associations offering comment on the proposed amended rules and the SIP revisions and their position 

concerning the same. 
IT IS THEREFORE ORDERED BY THE COMMISSION that the amended rules and revisions 

to the SIP incorporated by reference to this Order are hereby adopted. The Commission further 

authorizes staff to make any non-substantive revisions to the rules necessary to comply with Texas 

Register requirements. The adopted rules and the preamble to the adopted rules and the revisions to the· 

SIP are incorporated by reference in this Order as if set forth at length verbatim in this Order. 

IT IS FURTHER ORDERED BY THE COMMISSION that on behalf of the Commission, the 

Chairman should transmit a copy of this Order, together with the adopted rules and revisions to the SIP, 

to the Regional Administrator of EPA as a proposed revision to the Texas SIP pursuant to the Federal 

C\ean Air Act, §110, codified at 42 U.S. Code Ann. §§7410- 7671q, as amended. 

This Order constitutes the Order of the Commission required by the Administrative Procedure 

Act, Tex. Government Code, §2001.033. 

If any portion of this Order is for any reason held to be invalid by a court of competent 

jurisdiction, the invalidity of any portion shall not affect the validity of the remaining portions. 

Date issued: NOV 0 8 2002 TEXAS COMMISSION ON 

ENVIR NMENTAL QUALITY 
(D) notice of the earliest date the person may appeal.

(c) Applicant responsibilities. It is the responsibility of the

applicant to obtain and send the board the recommendations of the

prosecution, law enforcement, and correctional authorities regarding

offenses. The applicant shall also furnish proof, in documentation acceptable to the board, that he or she has maintained a record of steady

employment, supported his or her dependents, maintained a record of

good conduct, and paid all outstanding court costs, supervision fees,

fines, and restitution as ordered in the criminal cases in which he or

she has been convicted.

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 November 7,

2002.

TRD-200207321

Stanley E. Thomas

Presiding Officer

Texas Board of Orthotics and Prosthetics

Effective date: November 27, 2002

Proposal publication date: August 23, 2002

For further information, please call: (512) 458-7236

♦♦♦

22 TAC §821.11, §821.13

The repeals are adopted under Texas Occupations Code, Chapter 605, which provides the Texas Board of Orthotics and Prosthetics with the authority to adopt rules concerning the regulation

of orthotists and prosthetists.

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 November 7,

2002.

TRD-200207320

Stanley E. Thomas

Presiding Officer

Texas Board of Orthotics and Prosthetics

Effective date: November 27, 2002

Proposal publication date: August 23, 2002

For further information, please call: (512) 458-7236

♦♦♦

TITLE 30. ENVIRONMENTAL QUALITY

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 amendments to §§115.227 and 115.240 - 115.249, concerning the control of gasoline vapors from storage vessels and

dispensing facilities. The commission also adopts revisions to

the state implementation plan (SIP) narrative, Stage II Vapor

Recovery Program SIP Revision. The commission will submit

these amended rule sections and revised SIP narrative to the

United States Environmental Protection Agency (EPA) as revisions to the SIP. Sections 115.240, 115.243 - 115.245, 115.247,

and 115.249 are adopted with changes to the proposed text as

published in the July 12, 2002 issue of the Texas Register (27

TexReg 6197). Sections 115.227, 115.241, 115.242, 115.246,

and 115.248 are adopted without changes and will not be republished.

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) to satisfy gasoline vapor recovery requirements of the Federal Clean

Air Act (FCAA), §182(b)(3) (codified as 42 United States Code

(USC), §7511a(b)(3)). EPA requires that all Stage II vapor recovery systems be capable of achieving at least 95% vapor control efficiency. As an alternative to testing each station for 95%

control efficiency, states can require that installed systems be

certified by the California Air Resources Board (CARB), certified using CARB test procedures and methods, or certified by

equivalent test procedures and methods developed by the state

and submitted as a SIP revision. Texas’ current rules follow

the CARB certification procedures. The CARB is currently implementing an enhanced vapor recovery (EVR) program with a

completion date of April 2003, after which it will no longer certify non-EVR systems. The purpose of the CARB EVR program

is to increase control efficiency to 98%. In lieu of incorporating the CARB EVR program, the commission is adopting 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.

Specifically, the commission is changing the five-year requirement for full system tests to a one-year requirement, with the exception of the TXP-101 vapor space manifold and the TXP-103

dynamic back- pressure test in the Vapor Recovery Test Procedures Handbook (test procedures handbook or RG-399), which

will be required every three years. Also, to decrease the amount

of excess emissions caused by incompatibility between ORVR

and Stage II vapor recovery systems, the commission will require new Stage II systems to be ORVR compatible beginning in

2005 and existing vacuum assist Stage II systems to be retrofit

or replaced to be ORVR compatible by 2007. By doing so, the

commission believes that the increased testing frequency and

ORVR compatibility requirement will continue to satisfy the federal requirement to maintain a vapor recovery rate of 95%. The

commission adopts these amendments to Chapter 115, Control

of Air Pollution from Volatile Organic Compounds (VOC).

SECTION BY SECTION DISCUSSION

Throughout this rulemaking the outdated term "undesignated

head" has been replaced with the correct term "division" in

response to revised Texas Register rules published in the

February 13, 1998 issue of the Texas Register (23 TexReg

1289). The name of the commission has been changed to the

Texas Commission on Environmental Quality because the rules

will become effective after the date the name change occurred,

ADOPTED RULES November 22, 2002 27 TexReg 10935
September 1, 2002. The term "commission" has been changed

to "executive director" in each location where the action being

taken is directly associated with the executive director or staff.

In addition, various stylistic and editorial changes have been

made to comply with the current Texas Register Form and Style

Manual. Justification for these changes will not be discussed

any further in this preamble other than to point out where each

change was made.

Subchapter C, Division 2, Stage I Vapor Recovery

The amendments to §115.227, Exemptions, remove language

that could potentially provide a Stage I exemption for a facility

that is required to have Stage II vapor recovery. All Stage II vapor

recovery systems must include Stage I vapor recovery in order

to operate properly. The amendments also add section titles the

first time each section is referenced in §115.227.

Subchapter C, Division 4, Stage II Vapor Recovery

The amendments to §115.240, Stage II Vapor Recovery Definitions, include stylistic changes previously discussed in this

preamble. The amendments delete the definition independent

small business marketer of gasoline because the term is no

longer used in this division. The amendments also provide

additional definitions for industry-specific terminology presented

in the rules, which include the definitions for onboard refueling

vapor recovery and onboard refueling vapor recovery (ORVR)

compatible. The amendments add a table listing the Stage

II vapor recovery systems certified by a CARB Executive

Order and change the section title to Stage II Vapor Recovery

Definitions and List of California Air Resources Board Certified

Stage II Equipment.

The amendments to §115.241, Emissions Specifications,

remove the reference to specific nonattainment areas as being

subject to the controls of the division and place the reference in

§115.249, Counties and Compliance Schedules, where it more

appropriately belongs.

The administrative and stylistic amendments to §115.242,

Control Requirements, remove the reference to specific nonattainment areas as being subject to the controls of the division

and place the reference in §115.249 where it more appropriately

belongs, and change "undesignated head" to "division." The

amendments to §115.242(2) correct two section numbers and

titles in reference citations to 30 TAC Chapter 334; delete two

reference citations to §115.249 which no longer apply; spell out

the acronym "UL" as "Underwriters Laboratories"; and delete

one superfluous reference to the acronym TNRCC.

The technical amendments to §115.242 clarify which CARB-certified Stage II vapor recovery systems would be authorized for

use by the executive director. Also, the amendments allow the

executive director to continue to recognize any Executive Orders which CARB decertifies in the future. Due to the federal

mandate requiring motor vehicle manufacturers to make vehicles equipped with ORVR, the incompatibility between ORVR

and Stage II vapor recovery is addressed because this incompatibility may prove to be a new source of emissions. In order to

maintain SIP integrity and to prevent new emissions, the amendments include a compliance schedule for gasoline dispensing

facilities to upgrade their Stage II vapor recovery systems to be

ORVR compatible. The amendments also eliminate the requirement to post the "TNRCC Stage II Vapor Recovery Hotline" on

each gasoline dispensing pump equipped with a Stage II vapor

recovery system. The majority of the calls received on this hotline should be directed to either the Texas Department of Agriculture Weights and Measures for issues involving price discrepancies at the pump or to the facility owner or operator for customer

service inquiries. Finally, other control requirements have been

updated to ensure that the vapor recovery systems operate at

the prescribed 95% level of efficiency.

The amendments to §115.243, Alternate Control Requirements,

remove the reference to specific nonattainment areas as being

subject to the controls of the division and place the reference in

§115.249, where it more appropriately belongs. In addition, the

title of the division was added to §115.243(2).

The amendments to §115.244, Inspection Requirements,

remove the reference to specific nonattainment areas as being

subject to the controls of the division and place the reference in

§115.249, where it more appropriately belongs. The reference

to §115.242(3)(I) in §115.244(1) was deleted because it is

unreasonable for facility representatives with vacuum assist

systems to determine whether or not a vacuum producing device

is "inoperative or defective" under all circumstances. The word

"utilize" has been replaced with the word "use" in §115.244(2).

The administrative and stylistic amendments to §115.245,

Testing Requirements, remove the reference to specific nonattainment areas as being subject to the controls of the division

and place the reference in §115.249, where it more appropriately belongs. The title of the test procedures handbook has

been changed to "Vapor Recovery Test Procedures Handbook"

and the regulatory guidance number (RG-399) and date of the

current handbook have been added. The amendments also

delete several superfluous references to the acronym TNRCC,

and change "TNRCC" to "executive director" in several locations

because the executive director (or staff) is responsible for

program management. Finally, the name of the commission has

been changed in one location.

The technical amendments to §115.245 provide a directive to

use the most recent vapor recovery test procedures handbook,

add language to allow air-to-liquid ratio (A/L ratio) testing for assist systems, add references to third-party certification, and require annual compliance testing of Stage II equipment to ensure

that the equipment is operating properly. Full system testing,

with the exception of TXP-101 vapor space manifold testing and

TXP-103 dynamic back-pressure testing, must be accomplished

at least once in each 12-month period. TXP-101 and TXP-103

testing must be performed at least once in each 36-month period. The terms "12-month period" and "36-month period" are

used in the calendar sense and are not meant to imply a specific

number of days. For example, if a full system test was completed

in a given month, such as October 2003, then another full system test must be done at some time in the subsequent 12-month

period from November 1, 2003 through the end of October 2004.

If a full system test was done on October 5, 2003, then the facility has until October 31, 2004 to complete the next full system

test. If the facility waited until October 31, 2003 to do the next

full system test, the following test would still be due no later than

October 31, 2004. However, if the facility made an "early" full

system test on August 15, 2004, regardless of the reason the

test was conducted earlier than required, then the following system test would be due no later than August 31, 2005. Finally, the

commission will implement a registry of testers who have certified their knowledge of the test procedures handbook.

The amendments to §115.246, Recordkeeping Requirements,

remove the reference to specific nonattainment areas as being

27 TexReg 10936 November 22, 2002 Texas Register
subject to the controls of the division and place the reference in

§115.249, where it more appropriately belongs. Other amendments include changing the term "undesignated head" to "division" in accordance with Texas Register rules, changing the legalistic term "pursuant to" to "under" in two places to comply with

the current style guidance, and changing references from the

"TNRCC" to the "executive director" in two locations because the

executive director (or staff) is the more appropriate recipient of

facility records.

The amendments to §115.247, Exemptions, remove the reference to specific nonattainment areas as being subject to the controls of the division and place the reference in §115.249, where

it more appropriately belongs, and delete one superfluous reference to the Texas Natural Resource Conservation Commission.

In addition, the word "his" has been deleted from §115.247(2).

The amendments to §115.248, Training Requirements, remove

the reference to specific nonattainment areas as being subject to

the controls of the division and place the reference in §115.249,

where it more appropriately belongs; delete one superfluous reference to the TNRCC; and change "TNRCC" to "executive director" in several locations because the executive director (or staff)

is responsible for program management.

The amendments to §115.249, Counties and Compliance

Schedules, specify the counties in which these rules apply;

delete the compliance dates which have passed and change

the language to "shall continue to comply with"; and add the

compliance schedule for ORVR compatibility. The compliance

schedule for ORVR compatibility has been changed from proposal because the commission will be conducting a mid-course

review for the Beaumont/Port Arthur, Dallas/Fort Worth, and

Houston/Galveston ozone nonattainment areas, which will be

submitted to EPA by May 2004. The commission has committed

to perform modeling with MOBILE6, the latest version of EPA’s

emission factor model for mobile sources, as part of this review.

Establishing a motor vehicle emissions budget using MOBILE6

is one of the key components of the mid-course review. In

addition, the mid-course review will address all aspects of the

SIP including the Stage I and Stage II vapor recovery program.

Therefore, the commission has changed the compliance deadline for the installation of all new ORVR compatible systems

from April 1, 2004 to April 1, 2005 to accommodate any policy

changes that may arise from the mid-course review. The

amendments also changed the term "undesignated head" to

"division."

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the rulemaking action in light of

the regulatory analysis requirements of Texas Government

Code, §2001.0225, and determined that the amendments meet

the definition of a "major environmental rule" as defined in

that statute. 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 rulemaking action is to protect the environment

and reduce risks to human health from environmental exposure

to ozone by keeping gasoline vapor recovery rates at the 95%

prescribed level of efficiency. The amendments may have an

adverse material impact on a sector of the economy or a sector

of the state. Gas station owners and operators in the four

ozone nonattainment areas (16 counties) in the state will be

required to pay approximately $200 more per year in testing

costs, and those that need to upgrade their gas dispensing

systems to become ORVR compatible will incur an expense

of approximately $1,100 per dispenser, or up to approximately

$20,000 per facility, depending on the specific technology they

choose to implement.

Although the amendments meet the definition of a "major environmental rule" as defined in the 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 rulemaking action is not subject to the regulatory analysis provisions of

§2001.0225(b), because the amendments do not meet any of the

four applicability requirements. Specifically, the 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. The commission invited public

comment on the draft regulatory impact analysis determination,

but received no comments.

TAKINGS IMPACT ASSESSMENT

The commission evaluated this rulemaking action and performed an analysis of whether Texas Government Code,

Chapter 2007 is applicable. The analysis indicates this action

is being taken to reasonably fulfill an obligation mandated by

federal law, and therefore is exempt under Texas Government

Code, §2007.003(b)(4). Specifically, this rulemaking action

amends the Stage II gasoline vapor recovery rules and SIP

narrative required under 42 USC, §7511a(b)(3), (c), and (d).

The specific purpose of this rulemaking action is to continue

to satisfy the provisions of 42 USC and to maintain a vapor

recovery rate of 95%. The amendments substantially advance

this stated purpose by updating control requirements of vapor

recovery systems at gasoline dispensing facilities, requiring

more frequent testing of these systems, and requiring these

facilities to upgrade their Stage II vapor recovery systems to

be compatible with newer, ORVR-equipped vehicles. Facilities

that do not upgrade their incompatible Stage II vapor recovery

systems may prove to be a new source of emissions, thus

weakening the SIP integrity.

Nevertheless, the commission further evaluated this rulemaking

action and performed an analysis of whether this action would

constitute a takings under Chapter 2007. The specific purpose

of these amendments is to continue to satisfy federal requirements for vapor recovery from gasoline dispensing facilities in

nonattainment areas of the state. The amendments substantially advance this stated purpose by requiring more frequent

testing and upgrading of vapor recovery systems at these gasoline stations. Promulgation and enforcement of these amendments would be neither a statutory nor constitutional taking of private real property. Specifically, the 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 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

ADOPTED RULES November 22, 2002 27 TexReg 10937
§382.208, but in a less financially burdensome manner on owners and operators of gasoline dispensing facilities. Some gas

station owners and operators may be required to install or modify Stage II vapor control equipment that will make the gas dispensing systems ORVR compatible; however, the existing Stage

II rules follow the CARB certification process for vapor recovery

equipment. CARB is implementing an enhanced program that

will require installation of more costly equipment than the alternative adopted in these amendments to Chapter 115. In addition, the alternative in these amendments will continue to provide benefits to society by maintaining vapor recovery rates at

95% efficiency. Therefore, these 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 (CFR), to protect and enhance air quality in the coastal areas (31 TAC §501.14(q)). This rulemaking

action complies with 40 CFR 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 CPM goals and policies.

The commission solicited comments on the consistency of the

proposed rules with the CMP during the public comment period,

but received no comments.

EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING

PERMIT 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

The commission held a public hearing on this proposal in Austin,

Texas, on August 8, 2002, at 2:00 p.m., at the commission central

office located at 12100 Park 35 Circle, Building F, Room 2210.

The comment period closed at 5:00 p.m. on August 12, 2002.

The following commenters submitted testimony on the proposal:

B & B Testing, Inc. (B & B); EPA; Industry Council on the Environment (ICE); Oncor, formerly TXU Electric & Gas (Oncor);

Rice Christ Incorporated (RCI); Sierra Club, Houston Regional

Group (Sierra-Houston); Tanknology; UST Services, Inc. (UST

Services); Valero Energy Corporation (Valero); Strasburger &

Price, LLP, on behalf of 7-Eleven, Inc. (7-Eleven); and one individual.

The commission also received, 39 days after the close of the

comment period, an American Petroleum Institute (API) sponsored report entitled Refueling Emission Controls at Retail Gasoline Dispensing Stations in Texas, dated July 16, 2002. This report will be evaluated during the mid-course review of the SIP,

which will be submitted to EPA by May 2004, because the report

is based on the new EPA MOBILE6 model, the latest version of

EPA’s emission factor model for mobile sources.

RESPONSE TO COMMENTS

EPA and RCI expressed general support of the proposal. No

commenter expressed general opposition to the proposal. B

& B, ICE, Oncor, Sierra-Houston, Tanknology, UST Services,

Valero, 7-Eleven, and one individual suggested changes and/or

expressed concerns regarding the proposed rule language.

General Comments

Valero commented that it generally supports the proposed rules

as stated as a financially less burdensome method to maintain

compliance with Stage II systems at 95% efficiency. EPA commented that it agrees in principle with the proposed rule changes

and supports the proposed changes to the testing requirements

in §115.245(2). RCI stated that it is in favor of the proposed rule

change for personal and business reasons. ICE commented that

it believes the proposed changes to the regulations will accomplish the objectives defined in the preamble and help owners and

operators of gasoline dispensing facilities achieve the prescribed

efficiency of their Stage I and Stage II vapor recovery systems.

UST Services stated that it generally believes the proposal will

improve the quality of operation of Stage II systems.

The commission appreciates the support and agrees that the

adopted rules will improve the quality of operation of Stage II

systems, will better ensure Stage II system compliance, and are

financially less burdensome than the CARB EVR program.

Sierra-Houston commented that the commission should implement the California EVR program.

The commission appreciates the comment. However, the

commission has determined that a theoretical 3% increase in

efficiency using developing technologies, such as in-station

diagnostics and dripless nozzles, does not appear to warrant

such substantial capital costs to owners and operators of

gasoline dispensing facilities in the State of Texas. Nevertheless, the commission acknowledges that dispensing gasoline

from a Stage II vapor recovery system into ORVR- equipped

vehicles presents pressure-related concerns in addition to

the pressure-related fugitive emissions normally occurring

at gasoline dispensing facilities. Therefore, the commission

opted to implement an ORVR compatibility requirement. ORVR

compatible Stage II vapor recovery systems are currently available in the market; therefore, the commission determined that

implementing ORVR compatibility in concert with more frequent

compliance testing is the best course of action to ensure that

fugitive emissions do not increase as a result of a changing

vehicle population. The commission made no changes in

response to this comment.

27 TexReg 10938 November 22, 2002 Texas Register
Compliance Date

Sierra-Houston commented that the proposed implementation

date of April 1, 2007 for recently installed vacuum assisted systems will leave little time for these controls to begin reducing

VOC levels, and little time for the commission and other air enforcement agencies to ensure the controls have been installed.

Sierra-Houston recommended November 15, 2005 as an alternative compliance date.

Regarding the determination of compliance deadlines, the commission’s initial concern was determining when, or if, the federal

requirement for Stage II vapor recovery would be repealed as

a result of the introduction of ORVR systems on motor vehicles.

Under the FCAA, the EPA administrator has the exclusive authority to rescind the Stage II vapor recovery requirement once EPA

has determined that vehicles equipped with ORVR controls are

in "widespread use." Pending official guidance from the EPA on

this matter, the commission referred to the EPA document, Frequently Asked Questions on MOBILE6, January 16, 2002, which

states, "...the full fleet effect of ORVR will not be in place until

2030, assuming all vehicles over 25 years are negligible." The

commission also referred to the EPA document entitled, Stage

II Vapor Recovery and the Revised National Ambient Air Quality Standards (NAAQS), November 3, 1998, which states, "It will

take 15 to 20 years for onboard controls to be fully phased in depending on fleet turnover rates for an area." Therefore, the commission does not believe that EPA intends to repeal the Stage II

requirement for at least 15 to 30 years. Due to the uncertainness

of a widespread use determination, the commission decided the

environmentally responsible solution would be to retrofit or replace existing Stage II vapor recovery systems to be ORVR compatible, and to require all systems installed in the future to be

ORVR compatible.

In order to frame appropriate compliance deadlines, the commission examined the current population of registered vehicles

in Texas, examined the availability of replacement assist systems

(currently CARB certified as ORVR compatible), and contacted

Stage II vapor recovery manufacturers to project when potential

retrofits (including CARB EVR systems which meet the ORVR

compatibility requirements) may be available. Based on the review of all available information, the commission is confident that

the 2007 compliance date will ensure continued VOC reductions

and provide a reasonable amount of time for the Stage II industry to design, test, certify, market, and install new technologies

that meet, and perhaps even surpass, the requirements.

ORVR Compatibility Requirement

EPA requested support documentation that replacement nozzles

with a check valve will solve the ORVR vapor growth problem.

EPA stated that nozzle manufacturers indicate they will solve the

ORVR vapor growth problem, but underground storage tank vent

line manufacturers allege the systems will require a control device on the vent line (permeable filter, carbon absorber, or afterburner are proven technologies) to mitigate vent line emissions.

Valero also raised concerns about the cost of meeting ORVR

compatibility requirements, citing $1,100 per dispenser for nozzle sensor technology as cost effective, whereas vapor processor (membrane) methods may cost up to $30,000 per facility. ICE

expressed concern about the cost and availability of equipment

for upgrading existing systems by 2007.

The commission is confident that both nozzle technologies and

membrane technologies are viable solutions to the ORVR compatibility issue. At the beginning of the rulemaking process, the

commission estimated a $1,100 nozzle replacement cost in anticipation that replacement nozzle technologies would be developed and marketed by manufacturers of existing vacuum assist systems. Healy Systems, Inc. currently holds two CARB

certifications, CARB Executive Orders G-70-186 and G-70-191,

for ORVR-compatible vacuum assist Stage II systems. Both of

these systems utilize a patented technology dubbed the "smart

nozzle." This nozzle uses a device that senses the change in

the vehicle fill pipe pressure when fueling ORVR-equipped motor vehicles using a specialized vapor escape guard and a pressure-sensing diaphragm.

Furthermore, Gilbarco indicated to the commission that it is developing several technologies to address the ORVR compatibility

issue. One option is a nozzle that employs the use of hydrocarbon sensor technology. Another option is a membrane processor. The commission has been assured by Gilbarco that it

intends to test these and other technologies for CARB certification. Based on Stage II test results submitted for fiscal year 2001,

over 50% of the Stage II systems in Texas are a Gilbarco/Marconi VaporVac model.

Presently, there are no Stage II systems with membrane processors certified to meet the ORVR compatibility requirement.

However, the commission understands that one manufacturer is

currently testing a membrane system with CARB and other membrane system manufacturers are expected to test with CARB in

the near future.

The commission reiterates that it is important for owner/operators to communicate with their respective manufacturers to determine what kind of retrofit, if any, will be made available to them.

The commission has taken measures to facilitate every possible

option; nonetheless, if manufacturers do not produce retrofits,

then the owner/operators must replace their Stage II vapor recovery systems with either balance systems or vacuum assist

systems certified to be ORVR compatible. The commission is

confident that should this unlikely scenario occur, the implementation time line in these rules will allow gasoline dispensing facility owners/operators sufficient time to find the most cost-effective

solution available. The EPA-requested documentation regarding

replacement nozzles with check valves will be provided to EPA

under separate cover.

RCI commented that for every 10,000 gallons of fuel dispensed

where all motor vehicles are equipped with ORVR, approximately

20 gallons of fuel will be lost in the form of vapors.

The commission appreciates the comment. Information made

available by manufacturers and other industry experts has

been valuable to the commission, particularly the information

regarding the Stage II/ORVR compatibility issue. CARB estimates emissions reductions of 4.5 tons per day in California by

instituting an ORVR compatibility requirement. A CARB District

Survey dated October 2, 1998, stated that approximately 17%

of gasoline dispensing facilities in the State of California are

vacuum assist systems. However, approximately 90% of the

gasoline dispensing facilities in the Texas nonattainment areas

are vacuum assist systems. Therefore, the commission believes

that the projected emissions savings resulting from the ORVR

compatibility requirement will be significantly greater in Texas

than those anticipated in California. The commission made no

changes in response to this comment.

Stage II System Certification

ADOPTED RULES November 22, 2002 27 TexReg 10939
EPA asked if Texas has a solution to the certification of new

equipment if CARB does not continue to certify systems that do

not meet CARB’s enhanced rules.

The commission maintains that if EPA accepts third-party evaluations conducted by qualified independent testing organizations

as appropriate for the purposes of certifying release detection

methods for gasoline dispensing facilities, similar third-party

evaluations for vapor recovery systems should be acceptable.

To date, an alternative to the CARB certification program has

not been made available to Texas or other states. Most vapor

recovery systems manufactured in the future will be CARB- certified under California’s legislatively mandated EVR standards.

These new standards are not currently required in Texas or in

most other states. However, CARB has agreed, for a limited time,

to certify systems for the ORVR compatibility module, independent of the certification testing for a complete EVR system (all

six CARB modules).

In order to allow for fair market competition and to satisfy Texas’

SIP requirements, the commission is allowing industry to certify vapor recovery systems via a third party using pre- EVR

CARB methodology (CP-201, 1996 version). The CARB certification process requires that most of the costs to test and certify

equipment be absorbed by the equipment manufacturers. However, CARB does fund some of the testing equipment and staff

to oversee the testing. In the commission’s third-party certification program, the third-party laboratory or engineering firm would

provide the staff to oversee the testing at the expense of the

equipment manufacturer. The commission staff will review a final report and provide an approval letter if the third-party company meets the agreed criteria. The commission has made no

changes in response to this comment.

Stage II Tester Registry

Valero stated that it supports the certification of all testing companies and their personnel by the commission, an independent

laboratory, or an industry trade association. ICE and Tanknology also stated that they support the registration (certification)

of testers and the requirement that testers pass a proficiency

test. 7-Eleven expressed some ambivalence about the proposed

tester registry, but supported a stronger tester certification program with requisite training and an enforceable system to ensure tester competence and accountability. Based on the proposed annual Stage II testing requirements, 7-Eleven predicted

that new testing companies will be attracted to the Texas market,

and further stated that these new testing companies may not be

competent in this field and will only be made accountable if they

are faced with "imminent de-registration." 7-Eleven also cited the

existing facility representative training requirements in §115.248

as a resource for the commission to review and approve Stage

II-related curriculum. B & B stated that Stage II vapor recovery

testing is just as important as tank, line, cathodic protection, and

other tests that are performed at gasoline dispensing facilities,

but that Stage II is the only testing that is currently allowed to

be performed without a certification. B & B supported mandated

certification of testers with independent training and a standard

state test. UST Services stated that in order to achieve 95% efficiency, it is essential that the Stage II testers achieve a level of

competency and that the state should have some degree of authority and jurisdiction in this area.

The commission shares the commenters’ concern that Stage II

vapor recovery equipment should be properly tested by competent technicians; however, the commission cannot implement

their recommendations 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 any type of 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. Although there is a precedent for requiring explicit statutory authority for the licensing or certification

of occupational programs related to gasoline dispensing facilities

that the commission currently administers, such as Underground

Storage Tank Contractor Registration/Installers and Leaking Petroleum Storage Tank Corrective Action Specialist/Project Managers, there are no provisions in the TWC for the licensing of

Stage II vapor recovery equipment testers.

An additional concern is the issue of staffing. The two primary

methods of regulating such an activity are to hold the facilities

accountable for the proper function of their equipment or to license the persons performing the function. The first method can

be accomplished with the commission’s current staffing while

implementation of a licensing program will require additional

staffing. Due to current staffing constraints, the commission

is not presently in a position to dedicate the additional staff

required to establish a new licensing program. Therefore, the

commission made no changes in response to this comment.

Stage I Vapor Recovery

Valero supported the elimination of the potential Stage I vapor

recovery exemption for a Stage II vapor recovery facility, but

suggested that the commission eliminate the 125,000-gallon

throughput exemption and require Stage I vapor recovery

statewide to improve air quality. Valero commented that this

would standardize the procedures used by fuel carriers and

enhance the proper use of existing Stage I vapor recovery

equipment. 7-Eleven commented that the commission should

enact and enforce more stringent standards for documentation

of vapor recovery during fuel deliveries and/or promote more

stringent standards for the measurement of vapors returned to

the gasoline terminals and gasoline bulk plants after delivery.

7-Eleven indicated that the resultant decreases in VOC emissions should be used to authorize SIP flexibility in Stage II vapor

recovery implementation.

The commission disagrees that Stage I vapor recovery standards should be required throughout the state. While the commission agrees that implementing the Stage I vapor recovery criteria might standardize the procedures used by fuel carriers and

enhance the proper use of existing Stage I vapor recovery equipment, the commission does not believe that promulgating Stage

I vapor recovery standards statewide is crucial in achieving compliance with the NAAQS in the state’s ozone nonattainment areas. The commission is also concerned that promulgating the

Stage I vapor recovery standards throughout the state may place

an unnecessary hardship on facilities which are located in counties that are in compliance with the NAAQS and in which aggregate gasoline emissions from the filling of storage tanks at motor

vehicle dispensing facilities do not have a significant impact on

the ozone nonattainment areas and near-nonattainment areas.

With regard to 7-Eleven’s comment about SIP flexibility, Stage

II vapor recovery is a federally mandated VOC control and as

such, it cannot be substituted with another VOC control to meet

27 TexReg 10940 November 22, 2002 Texas Register
the NAAQS. However, at the request of stakeholders the commission may reevaluate the Stage I requirements for the 95 attainment counties in central and eastern Texas in a subsequent

rulemaking action. At that time, the commission would consider

the comments provided by Valero and 7-Eleven regarding Stage

I vapor recovery, including 7-Eleven’s comment that the commission should include more stringent standards for gasoline distributors, terminals, and bulk plants when determining VOC reduction strategies. Therefore, the commission made no changes to

the Stage I vapor recovery standards in response to these comments.

Equipment Issues

Valero stated that the proposed language regarding malfunctioning printers in §115.242(3)(K) will result in unfair enforcement

for owners and operators who may have a properly functioning

Stage II vapor recovery system.

Some systems are required in their CARB Executive Orders to

possess system monitors because prior versions of these systems have demonstrated problems generating adequate vacuum

thereby creating excess venting episodes. If the system monitor

is out of paper or is malfunctioning in such a way that prevents

the investigator from determining proper system operation, there

has to be a mechanism in place that requires the owner/operator

to replace or repair the monitor. Without a specific enforceable

requirement, the problem may go unresolved. The commission

agrees that, technically speaking, there may be no decrease in

a system’s ability to recover vapors, but the certification of a system requires that the operational status be available for inspection at all times. The commission inspection protocols would

consider any infraction of this nature to be a recordkeeping violation.

Valero raised concerns that the proposed language in

§115.244(1) was unreasonable for facility representatives with

vacuum assist systems to be able to determine whether or

not a vacuum- producing device is "inoperative or defective"

or to determine if a crimped or flattened hose is affecting the

performance of a Stage II system.

The commission concurs that it is unreasonable for facility representatives with vacuum assist systems to determine whether

or not a vacuum producing device is "inoperative or defective"

under all circumstances. Therefore, the commission deleted the

reference to §115.242(3)(I) in §115.244(1). However, crimped

or flattened hoses should be noted during daily inspections. It is

the owner’s/operator’s responsibility to determine whether or not

the crimped or flattened hose has created a vapor blockage. It is

left to the discretion of the owner/operator to determine whether

or not a crimped or flattened hose should be tested for a vapor

blockage or replaced as a precautionary measure. If, upon inspection, a crimped or flattened hose is found, through test, to

be blocked, a notice of violation can be issued.

Test Observation Program (TOP)

ICE and UST Services commented that the TOP will take up a

lot of the commission’s time, and will cost owners and operators

more money. ICE and UST Services commented that the commission and the city (local programs) will only inspect about 20%

of the facilities, as opposed to the previous program whereby the

city inspected 100% of all facilities. ICE and UST Services commented that TOP will reduce compliance. UST Services commented that the commission needs to maintain a program to

identify which sites are not complying. ICE commented that TOP

will lead to greater vapor emissions.

ICE and UST Services suggested that the commission should

randomly inspect 3.5% of the locations that have already been

tested to assure they were properly tested. ICE and UST Services commented that, assuming that it would take about 2-1/2

hours to observe a test and that there are 2,500 sites, their plan

would save the agency 6,031 man-hours. ICE and UST Services commented that the inspections would not have to be invasive and could be completed in 30 minutes; for example, the

agency could conduct random nozzle tests or inspect the Stage

I adapters with gauges. ICE and UST Services also commented

that the data gathered via their program would provide the commission with information for new regulations and/or the SIP.

The commission believes that TOP activities will not occupy as

much time as ICE and UST Services assume. The commission

realizes that the rule will increase costs for owners and operators

of the affected facilities, but believes that the costs will create no

great burden. The commission believes that observing Stage II

tests at 20% of the affected facilities is equivalent to inspecting

100% of the facilities because commission statistics show that

when Stage II tests are observed by qualified enforcement officials, malfunctioning vapor recovery systems are more likely to

be detected and repaired. This program will allow the commission to definitively determine which vapor recovery systems are

operating at the certified efficiency, and will also allow the commission to ascertain which testers are following proper testing

procedures. The commission also believes that working in conjunction with the local programs will provide sufficient work force

to ensure full compliance with these rules and thereby, fewer vapor emissions.

The commission did not replace the TOP with the commenters’

suggested program to randomly inspect 3.5% of the affected facilities that have already performed the required tests. The commission believes that the observation method that it has chosen

to adopt will provide greater compliance by those affected by

these rules, as it is more thorough, yet not as time consuming

as the commenters suggested. The commission believes that it

can also obtain more data to use in related future rules or SIPs

by using the TOP as opposed to utilizing the commenters’ random testing procedure. The commission has made no changes

in response to this comment.

Vapor Recovery Test Procedures Handbook

Valero indicated that it welcomes changes to the test procedures handbook, but raised concerns that the handbook does

not mention the 12-month test period that is stated in §115.245.

Valero stated that the testing policy describing the 12-month period should be communicated clearly to all commission inspectors and owners/operators.

The commission agrees with the comment. Language which

parallels wording in §115.245 regarding testing frequency will be

added to the introduction of the published test procedures handbook.

Valero commented that the test procedures handbook defines

the volume-to-liquid (V/L) test (TXP 106.1), but does not define

the CARB A/L test procedure (TP-201.5) required in the CARB

Executive Order G-70-150-AE for the Marconi (Gilbarco) VaporVac System. Valero requested further clarification or examples

regarding what kind of vapor volume meter will be acceptable for

use.

In accordance with §115.245(1), the test procedures handbook

takes precedence over any test procedure listed in the CARB

Executive Order; however, several alternatives to TXP-106

ADOPTED RULES November 22, 2002 27 TexReg 10941
have been approved by the executive director including CARB

TP-201.5, VacuChek, and VacuSmart. If the TXP-106 or

TP-201.5 tests are chosen, a RootsMeter is required. The

VacuChek and VacuSmart alternative procedures require the

VacuChek or VacuSmart, respectively.

Stage II Testing Issues

Valero, ICE, Tanknology, and UST Services commented that

they support annual testing of Stage II systems for A/L, V/L,

and pressure decay, but do not support an annual TXP-103

blockage test. 7-Eleven also challenged the necessity of an

annual blockage test. Valero recommended that the blockage

test be required only every three years. ICE and Tanknology

recommended that the blockage test be required every three

to five years. Valero, 7-Eleven, and UST Services stated that

performing a blockage test more than once every five years

is in excess of what needs to be done to maintain the 95%

operating efficiency requirement at the site. They cited that

the blockage test is designed to verify proper installation of the

system, not necessarily proper system operation. 7-Eleven and

UST Services also stated that the blockage testing requirement

will cost facility owners approximately $150 to $200 per site

per year to perform. Valero, ICE, and Tanknology all stated

that they were concerned that opening the vapor lines under

each dispenser in most facilities to introduce fuel into the line to

perform the blockage test will compromise the integrity of the

system.

The commission appreciates the comments regarding the proposed annual testing requirements. The commission’s goal is to

ensure that Stage II vapor recovery systems are maintained and

tested to ensure the 95% operating efficiency requirement. It is

important to test for blockages not only at the time of installation,

but also periodically, because even properly installed Stage II

systems have the possibility to develop problems over time, such

as vapor blockages. Nevertheless, the commission shares the

commenters’ concerns about system integrity and has changed

the requirement in §115.245(2) to require the TXP-103 test at

least once every 36 months. However, in order to better ensure

potential blockages are detected on a timely basis, the annual

TXP-106 test procedure will be modified to include the introduction of a minimum quantity of gasoline at the termination of vapor return lines to provide an annual indication regarding system

blockage without breaking piping junctions at each dispenser.

Furthermore, any alternative method approved by the executive

director (e.g., CARB TP-201.5) must also include an introduction of gasoline at the termination of the vapor return lines. Because TXP-101 poses similar problems for system integrity as

TXP-103, the commission will also change the testing frequency

requirement for TXP-101 to at least every 36 months.

Oncor stated that the existing language in the proposed rule establishes and by inference sets the price per year for the full system test at $550, and suggested changes to the preamble language. Oncor suggested that words such as "an average" be

used in the language used to describe testing costs.

The commission agrees with the commenter. The commission

did not intend to establish set costs for Stage II testing, and the

preamble language has been changed to reflect estimated testing costs.

Aboveground Storage Tank (AST) Executive Orders

One individual noted the erroneous exclusion of AST Executive

Orders in §115.240.

The commission agrees and has added the AST CARB Executive Orders to §115.240.

Recordkeeping Requirements

Valero, ICE, 7-Eleven, and UST Services commented on the

proposed recordkeeping requirements. ICE and 7-Eleven commented that requiring records to be maintained on-site was too

burdensome. Valero, 7-Eleven, and ICE commented that the

proposed rule should allow owners and operators to maintain

annual system testing records off-site, and 7-Eleven commented

that records could be kept off-site and delivered to the regional

office at the time of the ten-day notification of system testing.

Valero and ICE commented that the on-site recordkeeping requirements should be minimized to the daily inspection logs,

maintenance logs, and facility representative training records.

Valero and ICE asserted that the remaining documents could

be archived at a central location and made available within 48

hours. ICE and Valero commented that the enforcement of regulations regarding recordkeeping could take away from the commission’s ability to enforce vapor recovery system compliance,

postulating that recordkeeping violations could take up an inordinate amount of the commission’s time that would otherwise be

utilized to inspect noncompliant facilities. ICE and UST Services

commented that the commission should consider following the

recordkeeping requirements outlined in 30 TAC Chapter 334 for

the Stage II test reports so as to provide consistency and simplification. They pointed out that if the rules for Stage II testing

were consistent with the rules for tank and line testing, they would

have time to produce the test results to the agency, or the agency

could review its own files before performing the site inspections.

Tanknology, Valero, and ICE commented that they support the

testing requirements; however, they felt that the agency should

examine the submitted test results to assure compliance with

the regulations and create a database of the test results that is

reconciled monthly. Tanknology, Valero, and ICE expressed the

belief that such a process could be used to identify facilities that

either have not submitted the results or have not performed the

testing activity, which would thereby improve the efficiency of the

agency inspections, improve compliance among facility owners,

and ultimately improve the air quality.

The commission does not agree with the comments by 7-Eleven,

Valero, and ICE that the recordkeeping requirements should be

further modified to allow for off-site record retention. The amendments allow owners/operators 48 hours to produce records for

unmanned facilities. The commission also does not agree that

retention of these records on-site will place any undue burden

on those affected by the rule, and believes that this requirement

is crucial to enforcement of these rules. The commission also

believes that these rules will be most effectively enforced if all

required records are kept on-site as specified. Records must

be kept on-site and made immediately available for review upon

request by authorized representatives of the executive director,

EPA, or any local air pollution control program with jurisdiction

so as to allow for proper administration of the rules by authorized personnel. The commission believes that on-site review of

test records during inspections provides Field Operations Division personnel a perspective on the operation and maintenance

at a particular facility over time. The commission prefers that

records be kept on-site so as to facilitate unannounced inspections required in accordance with the SIP. The commission also

disagrees with the comment by Valero and ICE that recordkeeping violations could take up too much of the commission’s time

that would otherwise be utilized to inspect noncompliant facilities.

The commission believes that there are adequate resources to

27 TexReg 10942 November 22, 2002 Texas Register
enforce all aspects of the Stage I and II rules. The commission

does not agree with the comments of ICE and UST Services

that the proposed recordkeeping requirements should conform

to the recordkeeping requirements outlined in Chapter 334 for

the Stage II test reports. There are differences in the recordkeeping requirements because there are significant differences

between Chapter 334 rules and these rules. The commission

appreciates comments from Tanknology, Valero, and ICE that

suggested the commission should examine the test results submitted to assure compliance with the regulations and create a

test results database that is reconciled monthly. The commission believes that the current procedures are sufficient to assure

compliance with the regulations. However, because the SIP has

historically required 100% of the facilities to be inspected, commission and local program investigators have ordinarily reviewed

test results on-site during annual Stage II investigations. During

the pilot TOP, the commission tracked and recorded test results

in a database. Due to staffing constraints, this practice was discontinued shortly after the pilot program final report was issued.

With the implementation of the TOP, regional offices and contracted local programs will be independently tracking test results

in databases. These databases will be used to determine which

facilities have not performed the required testing according to the

prescribed schedule.

DIVISION 2. FILLING OF GASOLINE

STORAGE VESSELS (STAGE I) FOR MOTOR

VEHICLE FUEL DISPENSING FACILITIES

30 TAC §115.227

STATUTORY AUTHORITY

The amendment is adopted under TWC, §5.103, concerning

Rules, and §5.105, concerning General Policy, which authorize

the commission to adopt rules necessary to carry out its

powers and duties under the TWC; and under THSC, §382.017,

concerning Rules, which authorizes the commission to adopt

rules consistent with the policy and purposes of the TCAA. The

amendment is also adopted under THSC, §382.002, concerning Policy and Purpose, 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, concerning General Powers and Duties,

which authorizes the commission to control the quality of the

state’s air; §382.012, concerning State Air Control Plan, which

authorizes the commission to prepare and develop a general,

comprehensive plan for the control of the state’s air; and

§382.208, concerning Attainment Program, 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.

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 November 7,

2002.

TRD-200207269

Stephanie Bergeron

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: November 27, 2002

Proposal publication date: July 12, 2002

For further information, please call: (512) 239-0348

♦♦♦

DIVISION 4. CONTROL OF VEHICLE

REFUELING EMISSIONS (STAGE II) AT

MOTOR VEHICLE FUEL DISPENSING

FACILITIES

30 TAC §§115.240 - 115.249

STATUTORY AUTHORITY

The amendments are adopted under TWC, §5.103, concerning

Rules, and §5.105, concerning General Policy, which authorize

the commission to adopt rules necessary to carry out its powers and duties under the TWC; and under THSC, §382.017,

concerning Rules, which authorizes the commission to adopt

rules consistent with the policy and purposes of the TCAA. The

amendments are also adopted under THSC, §382.002, concerning Policy and Purpose, 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, concerning General Powers and Duties, which

authorizes the commission to control the quality of the state’s air;

§382.012, concerning State Air Control Plan, which authorizes

the commission to prepare and develop a general, comprehensive plan for the control of the state’s air; and §382.208, concerning Attainment Program, 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.

§115.240. Stage II Vapor Recovery Definitions and List of California

Air Resources Board Certified Stage II Equipment.

(a) The following words and terms, when used in this division,

shall have the following meanings, unless the context clearly indicates

otherwise. Additional definitions for terms used in this division are

found in §§115.10, 101.1, and 3.2 of this title (relating to Definitions).

(1) Onboard refueling vapor recovery - A system on motor

vehicles designed to recover hydrocarbon vapors that escape during

refueling.

(2) Onboard refueling vapor recovery (ORVR) compatible

- A vacuum assist Stage II vapor recovery system designed to prevent the ingestion of ambient air during the fueling of motor vehicles

equipped with ORVR.

(3) Owner or operator of a motor vehicle fuel dispensing

facility - Any person who owns, leases, operates, or controls the motor

vehicle fuel dispensing facility.

(b) The table in the following figure is a list of the Stage II

vapor recovery systems certified by a California Air Resources Board

(CARB) Executive Order in effect as of January 1, 2002.

Figure: 30 TAC §115.240(b)

§115.243. Alternate Control Requirements.

ADOPTED RULES November 22, 2002 27 TexReg 10943
Alternate methods of complying with §115.242(1) of this title (relating

to Control Requirements) may be approved by the executive director

if:

(1) emission reductions are demonstrated to be equivalent

or greater than those afforded by the requirements in §115.242(1) of

this title; and

(2) the Stage II vapor recovery system is capable of meeting the applicable performance requirements prescribed in this division

(relating to Control of Vehicle Refueling Emissions (Stage II) at Motor

Vehicle Fuel Dispensing Facilities), as verified by third-party evaluation conducted by a qualified independent testing organization using a

code or standard of practice, acceptable to the executive director, which

has been developed by a nationally recognized agency, association, or

independent testing laboratory.

§115.244. Inspection Requirements.

The owner or operator of any motor vehicle fuel dispensing facility

subject to the control requirements of this division (relating to Control

of Vehicle Refueling Emissions (Stage II) at Motor Vehicle Fuel Dispensing Facilities) shall conduct daily inspections of the Stage II vapor

recovery system for the defects specified in §115.242(3) and (4) of this

title (relating to Control Requirements) as follows.

(1) For all systems, the daily inspections shall include the

applicable portions of §115.242(3)(A) - (F), (H), and (K), and (4) of

this title.

(2) For assist systems that use a processor, indicating

mechanisms designed by the Stage II vapor recovery equipment

manufacturer to verify proper operation shall be inspected daily.

Examples of these indicating mechanisms include flame detection

sensors, remote (from the processor) visual or audible displays indicating system operation, or other means as described in the applicable

Executive Order for the system.

(3) For all systems, the components listed in §115.

242(3)(J) of this title shall be inspected at least monthly.

(4) For all systems, the components listed in

§115.242(3)(G) of this title shall be inspected at least annually.

§115.245. Testing Requirements.

For all affected persons, compliance with §115.241 and §115.242

of this title (relating to Emission Specifications and Control Requirements) shall be determined at each facility within 30 days of

installation of the Stage II equipment by testing as follows.

(1) Stage II vapor recovery systems shall successfully meet

the performance criteria proper to the system by successfully completing the following testing requirements using the test procedures as

found in the Vapor Recovery Test Procedures Handbook (test procedures handbook) (RG-399, November 2002).

(A) For balance and assist systems:

(i) the manifolding or interconnectivity of the vapor

space shall be consistent with the Executive Order requirements for the

installed system;

(ii) the sum of the vapor leaks in the system shall not

exceed acceptable limits for the system as defined in the pressure decay

test;

(iii) the maximum acceptable backpressure through

a given vapor path shall not exceed the limits as found in the backpressure/liquid blockage test applicable for the vapor path for the system;

and

(iv) the maximum gasoline flow rate through the

nozzle shall not exceed the limits found in the Executive Order or

third-party certification for the system.

(B) For bootless nozzle assist systems, the volume-toliquid ratio (V/L ratio) or air-to-liquid ratio (A/L ratio) shall be within

acceptable limits.

(C) Each system shall meet minimum performance criteria specific to the individual system as defined in the California Air

Resources Board Executive Order. The criteria and test methods contained in the test procedures handbook specified in paragraph (1) of this

section shall take precedence for applicable tests where performance

criteria exist in both the Executive Order and the test procedures handbook; otherwise, the Executive Order specific criteria shall take precedence.

(D) The owner or operator, or his or her representative,

shall provide written notification to the appropriate regional office and

any local air pollution program with jurisdiction of the testing date and

who will conduct the test. The notification must be received by the

appropriate regional office and any local air pollution program with

jurisdiction at least ten working days in advance of the test, and the notification must contain the information and be in the format as found in

the test procedures handbook. Notification may take the form of a facsimile or telecopier transmission, as long as the facsimile is received by

the appropriate regional office and any local air pollution program with

jurisdiction at least ten working days prior to the test and it is followed

up within two weeks of the transmission with a written notification.

The owner or operator, or his or her representative, shall give at least

24-hour notification to the appropriate regional office and any local air

pollution program with jurisdiction if a scheduled test is cancelled. In

the event that the test cancellation is not anticipated prior to 24 hours

before the scheduled test, the owner or operator, or his or her representative, shall notify the appropriate regional office and any local air

pollution program with jurisdiction as soon in advance of the scheduled

test as is practicable.

(2) Verification of proper operation of the Stage II equipment shall be performed in accordance with the test procedures referenced in paragraph (1) of this section at least once every twelve months

or upon major system replacement or modification, whichever occurs

first. The verification shall include all functional tests that were required for the initial system test, except for TXP-101, Determination of

Vapor Space Manifolding of Vapor Recovery Systems at Gasoline Dispensing Facilities, and TXP-103, Determination of Dynamic Pressure

Performance (Dynamic Back-Pressure) of Vapor Recovery Systems at

Gasoline Dispensing Facilities, which must be performed at least once

every 36 months. The owner or operator, or his or her representative,

shall provide written notification to the appropriate regional office and

any local air pollution program with jurisdiction of the testing date and

who will conduct the test. The notification must be received by the

appropriate regional office and any local air pollution program with

jurisdiction at least ten working days in advance of the test, and the notification must contain the information and be in the format as found in

the test procedures handbook. Notification may take the form of a facsimile or telecopier transmission, as long as the facsimile is received by

the appropriate regional office and any local air pollution program with

jurisdiction at least ten working days prior to the test and it is followed

up within two weeks of the transmission with a written notification.

The owner or operator, or his or her representative, shall give at least

24-hour notification to the appropriate regional office and any local air

pollution program with jurisdiction if a scheduled test is cancelled. In

the event that the test cancellation is not anticipated prior to 24 hours

before the scheduled test, the owner or operator, or his or her representative, shall notify the appropriate regional office and any local air

27 TexReg 10944 November 22, 2002 Texas Register
pollution program with jurisdiction as soon in advance of the scheduled test as is practicable. For the purposes of this paragraph, a major

system replacement or modification is defined as:

(A) the repair or replacement of any stationary storage

tank equipped with a Stage II vapor recovery system;

(B) the replacement of an existing CARB-certified

Stage II vapor recovery system with a system certified by CARB

under a different CARB Executive Order, or certified by an approved

third party under a third-party certification;

(C) the repair or replacement of any part of a piping

system attached to a stationary storage tank equipped with a Stage II

vapor recovery system, excluding the repair or replacement of piping

which is accessible for such repair or replacement without excavation

or modification of the vapor recovery equipment; or

(D) the replacement of at least one fuel dispenser.

(3) Minor modifications of these test methods may be approved by the executive director.

(4) All required tests shall be conducted either in the presence of a Texas Commission on Environmental Quality or local program inspector with jurisdiction, or by a person who is registered with

the executive director to conduct Stage II vapor recovery tests. The requirement to be registered shall begin on November 15, 1993, or 60

days after the executive director has established the registry, whichever

occurs later. The executive director may remove an individual from the

registry of testers for any of the following causes:

(A) the executive director can demonstrate that the individual has failed to conduct the test(s) properly in at least three separate

instances; or

(B) the individual falsifies test results for tests conducted to fulfill the requirements of this section.

(5) The owner or operator, or his or her representative, shall

submit the results of all tests required by this section to the appropriate

regional office and any local air pollution control program with jurisdiction within ten working days of the completion of the test(s) using

the format specified in the test procedures handbook. For purposes of

on-site recordkeeping, the Test Procedures Results Cover Sheet, properly completed with the summary of the testing, is acceptable. The

detailed results from each test conducted along with a properly completed summary sheet, as provided for in the test procedures handbook,

shall be submitted to the appropriate regional office and any local air

pollution control program with jurisdiction.

§115.247. Exemptions.

The following are exempt from the requirements of this division (relating to Control of Vehicle Refueling Emissions (Stage II) at Motor

Vehicle Fuel Dispensing Facilities):

(1) gasoline dispensing equipment used exclusively for the

fueling of aircraft, watercraft, or implements of agriculture; and

(2) any motor vehicle fuel dispensing facility for which

construction began prior to November 15, 1992, and which has a

monthly throughput of less than 10,000 gallons of gasoline. For the

purposes of this paragraph, the monthly throughput shall be based on

the maximum monthly gasoline throughput for any calendar month

after January 1, 1991. To maintain a facility’s exempt status under this

paragraph, the owner or operator must submit the facility’s monthly

gasoline throughput on an annual basis no later than January 31 of

each year to the executive director or designated representative.

§115.249. Counties and Compliance Schedules.

(a) The rules in this division (relating to Control of Vehicle Refueling Emissions (Stage II) at Motor Vehicle Fuel Dispensing Facilities) apply to affected persons in Brazoria, Chambers, Collin, Dallas,

Denton, El Paso, Fort Bend, Galveston, Harris, Hardin, Jefferson, Liberty, Montgomery, Orange, Tarrant, and Waller Counties.

(b) All affected persons shall continue to comply with this division as required by §115.930 of this title (relating to Compliance

Dates).

(c) All vacuum assist Stage II vapor recovery systems must be

onboard refueling vapor recovery (ORVR) compatible according to the

following schedules:

(1) all installations of vacuum assist Stage II vapor recovery systems installed on or after April 1, 2005, must be ORVR compatible; and

(2) all vacuum assist Stage II vapor recovery systems installed before April 1, 2005, must be upgraded to an ORVR compatible

system no later than April 1, 2007.

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 November 7,

2002.

TRD-200207270

Stephanie Bergeron

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: November 27, 2002

Proposal publication date: July 12, 2002

For further information, please call: (512) 239-0348

♦♦♦

CHAPTER 292. SPECIAL REQUIREMENTS

FOR CERTAIN DISTRICTS AND AUTHORITIES

SUBCHAPTER A. GENERAL PROVISIONS

30 TAC §292.1

The Texas Commission on Environmental Quality (commission)

adopts an amendment to §292.1 without changes to the proposed text as published in the July 26, 2002 issue of the Texas

Register (27 TexReg 6662) which will not be republished. However, the name of Chapter 292 is being changed.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS

FOR THE ADOPTED RULE

Chapter 292 requires districts that have been determined to function as river authorities to adopt administrative policies that will

govern district activities and board member conduct. The commission identified 20 districts in 1992. Senate Bill (SB) 2, §1.01,

77th Legislature, 2001, created Texas Water Code (TWC), Chapter 9, which sets forth provisions regarding the creation and duties of the Texas Water Advisory Council. TWC, §9.010, identified 19 of the 20 districts included in the commission rules, plus

an additional 11 that are required to submit information to the

newly created Texas Water Advisory Council. TWC, §9.012, also

required that the additional 11 districts be included in Chapter

292, but does not preclude the commission from retaining the

ADOPTED RULES November 22, 2002 27 TexReg 10945