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~** 

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### ;-- .. :**~**

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 

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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 QualityTexas Commission on Environmental Quality Public Hearing August 8, 2002 Concerning Revisions to 30 TAC 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-AIINTRODUCTION

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 PROPOSALPUBLIC 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 DistrictHouston 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 TAC 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 205 1 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, byfailing 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 revisionsto 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 GovernmentCode, 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, onAugust 8, 2002, at 2:00 p.m., at the Texas Natural Resource Conservation Commission, 12100 Park 35 Circle, Building F, Room 2210. Thehearing 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 whichthe 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 resubmittheir 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 forevery 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 RegisterWritten 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 Park35 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 Dur ó n 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 thecommission 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.
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f i e d ch e ck , el ec t ronic f un d s t ran s f er, or mo n e y order made p ayab le t o t h e T ex as Co mmi s si on on En v iro nmental Quali ty (T C E Q ) an d sub mit
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. 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 OPERATIONSThe 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, StageII 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 narrativeon 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 recoverysystems at gasoline dispensing facilities. Specifically, the commission proposes to change the five-year requirement for fullsystem 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 6197Throughout 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. AllStage 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 gasolinebecause the term is no longer used in this division. The proposed amendments would also provide additional definitions forindustry-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 asbeing 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 wouldbe 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 includea 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 acronymTNRCC, 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 wouldprovide 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 subsequent12-month period from November 1, 2003 through the end of October, 2004. If a system test was done on October 5, 2003, thenthe 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 thetest 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 Registerplace 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" intwo 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 deleteone 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 GOVERNMENTJeffrey 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 anticipatedfor units of state or local government, businesses, or individuals who own or operate gasoline stations or gasoline dispensingfacilities 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 gasolinedispensing 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 modulesand would require gasoline dispensing facilities to install new vapor recovery systems including in-station diagnostic computerequipment 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 willrequire 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 vaporrecovery 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 eachyear, 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 forgasoline 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 requirementsto 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 assistStage 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 anddepending 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 6199dispenser, 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 fromthe 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 fiveyears the proposed amendments are in effect, the public benefit anticipated from the enforcement of and compliance with theproposed amendments would include the maintenance of SIP requirements to keep vapor recovery rates at the 95% prescribedlevels 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 the16 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 systemsare 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 oftests 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 pressuredecay 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 forgasoline 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 haveORVR 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 anddepending 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 highercosts 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 ofthe 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-countyozone 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 willincur an expense of an additional $1,100 per dispenser. Assuming all 4,221 owners are small or micro- businesses, they wouldpay an estimated total of $844,200 per year for additional testing costs and assuming there were an average of six dispensersthat 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 tenfacilities 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 Registergas 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 largerbusinesses and the portion of costs attributed to the ORVR upgrade are assumed to be one-time costs. LOCAL EMPLOYMENT IMPACT STATEMENTThe 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 inlight 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, asector 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 proposedamendments 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 beingtaken 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 statedpurpose by updating control requirements of vapor recovery systems at gasoline dispensing facilities, requiring more frequenttesting of these systems, and requiring these facilities to upgrade their Stage II vapor recovery systems to be compatiblewith 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 proposedrulemaking 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 satisfyfederal 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 recoverysystems 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 gasstation 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 thatwill 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 andRules Subject to the Coastal Management Program, commission rules governing air pollutant emissions must be consistentwith 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 CoordinationCouncil, 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 6201the 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 revisionswill maintain the same level of emissions control as the existing rules. The CMP policy applicable to this rulemaking actionis 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 theconsistency 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 theiroperating 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, onAugust 8, 2002, at 2:00 p.m., at the Texas Natural Resource Conservation Commission, 12100 Park 35 Circle, Building F, Room2210. 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. Therewill 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 COMMENTSComments 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 th e B eau mont /P ort Ar thur, D all as / Fort W or

th , El Pa s o , an d H o u ston/G alve s to n a rea s , st a tio nary g as ol in e stor ag e co n tain ers wi t h a n o min al c ap ac ity le s s than or e qu al to 1 , 0 0 0 g all o n s , at mo tor vehic le f u el di sp e n s in g f ac il iti e s f or whic h co n str u ctio n beg an prior to Nov e mber 1 5 , 1 9 9 2 , a re exe mpt f ro m t h e re qui re ments o f t hi s div i s io n ( re l ati ng to Fil lin g o f G a s o li ne S torage V e s s e l s ( S t ag e I) f or M o tor V ehi cl e Fu el D i sp e n s in g Fac il iti e s ) , e x c ep t f or : ] [ (A ) § 1 1 5
. 2 22 (7 ) o f t hi s title ( re l atin g to C o ntro l Re qui re ments ) ; ] [ (B ) § 1 1 5
. 22 2 ( 3 ) of thi s title a s it app li e s to liqu id g as o li ne l eaks ; an d] [ (C ) § 1 1 5
. 22 4 ( 1 ) o f t hi s title (rel a tin g to I n s p ec ti on Re qui re ments ) a s it appl ie s to l iqui d g a s o li ne le a k s . ] ( 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 priorto 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 (rel a tin g t o Co nt rol Re qui re ments ) ; (B) § 115.222(3) of this title as it applies to liquid gasoline leaks; (C) § 115.224(1) of this title (re l ati ng to In sp e cti o n Re qui re ments ) 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 gallonsat motor vehicle fuel dispensing facilities are exempt from the requirements of this division [(re l atin g to Fil li ng of G as ol in e S torag e V e s s e l s ( S t ag e I) f or M o tor V ehic le Fu el D i sp en s in g Faci litie s ) ], except for: 

### 27 TexReg 6202 July 12, 2002 Texas Register(A) § 115.222(7) of this title [(re l ati ng to C o nt ro l Re qui re ments ) ]; (B) § 115.222(3) of this title as it applies to liquid gasoline leaks; and (C) § 115.224(1) of this title [(rel a tin g to I n sp ec ti on Re qui re ments ) ] as it applies to liquid gasoline leaks. ( 3 ) [(4 ) ] In the covered attainment counties, transfers tostationary 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 [(re l ati ng to Fil li ng o f G a s o li ne S torag e V e s s e l s ( S tage I) f or M o tor V ehic le Fu e l D i sp e n s in g Fac il iti e s ) ], 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 [(rel a tin g to Rec ord

keep i ng Require me nt s ) ]. ( 4) [( 5 ) ] Transfers to the following stationary receiving containers are exempt from the requirements of this division [(rel a t
in g to Fi lli ng o f G as o lin e S torage V e s s el s ( S tage I ) f or M o tor V ehic le Fue l D i sp en s in g Faci li tie s ) ]:(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 a n d Li s t o f C a li

f o r

n ia A i r R es o u r ces B oa r d Ce rti f i ed St age I I Eq u i pm e n t . ( 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 § § 1 1 5
. 1 0 , 1 0 1
. 1 , an d 3
. 2 [ § 1 1 5
. 1 0 o f t hi s titl e ( re l ati ng to D e f i ni tio n s ) , § 1 0 1
. 1 o f thi s title ( re l atin g to D ef initio n s ) , an d § 3
. 2 ] of this title (relating to Definitions). [ ( 1 ) In dep en dent small bu s in e s s mar keter o f g a s o li n e- - A p er s o n e ng ag e d in the mar ketin g of g as o lin e wh o own s t h e di s pe n si ng e qu ip me nt at a m otor vehicl e f u e l di s p en si ng f ac il ity an d re ce ive s at le a st 5 0 % of hi s annu al i nc o me f ro m t h e ma rketin g o f g a s o li ne . A p er s on i s n o t an in dep e ndent s mall bu si ne s s ma rketer o f g a s o li n e if su ch p er s o n : ] [ (A ) i s a ref in er ; or ] [ (B ) co nt rol s ( i
. e . , own s more than 5 0 % of a bu si ne s s or cor p orati on ’ s stoc k) , i s c ont ro lle d b y, or i s u nder co mmo n c ont ro l with , a re f i n er ; or] [ (C ) i s o t h erwi s e dire c tly or i ndirec tl y af f i li a ted wi t h a re f

i n er or wi t h a p er s o n wh o co nt ro l s , i s c ont ro lle d b y, or i s un der c om mo n c o ntro l wi t h a ref in er ( unle s s t h e s o le af f i li a tio n i s b y mean s o f a s upp ly co nt r ac t or an agree ment or co nt r ac t to u s e a t r ade ma rk, trade n ame , s erv ic e ma rk, or o t h er i denti f y in g sy mb ol or n ame own e d by s uc h re f in er or an y s uc h p er s o n )
. ] ( 1 ) O nbo ard ref ue li ng va p or re covery - - A sy s te m on motor vehi cl e s de s ig ne d to re cover hy d ro c ar b o n vapors t h at e s c a p e duri ng re f

u e li ng . ( 2) O nbo ard re f u el in g vap or re covery ( O R VR) co mp a t
ib le - - A vac uum as s i s t S t ag e II vapor r e covery sy s te m de s ig n ed t o preve nt t h e in g e s ti on of amb ie nt air d urin g t h e f ue li ng of motor vehi cl e s equi ppe d with OR VR
. ( 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 ) Th e ta b le in t he f o ll owin g f ig ure is a li s t of t he S tage II va

p or rec overy sy s te m s cer ti f

i ed by a C ali f orni a Air Re s o urce s B o ard (C ARB ) Exe c utive Order in e f f ec t a s o f January 1 , 20 0 2
. Fig ure : 3 0 T AC § 1 1 5
. 2 40 (b) § 115.241. Emission Specifications. No person in the c o unti e s li s te d in § 1 1 5
. 24 9 of t hi s title (re l ati ng to Co u ntie s an d Co mpl i an ce S ch e d u le s ) [B eau mont /P ort Ar t hur, D all a s/For t W ort

h , El Pa s o , an d H ou ston/G alve s to n are as as de f i n ed in § 1 1 5
. 1 0 o f t hi s title (re l ati ng to D ef initio n s ) ] shall transfer or allow the transfer of gasoline from any stationary storage container into a 

### PROPOSED RULES July 12, 2002 27 TexReg 6203motor 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 co u ntie s li s te d in § 1 1 5
. 24 9 o f t hi s ti tle (re l ati ng to C ounti e s an d C o mp li an ce D ate s ) an d [B eau mont/ P ort Ar thur, D al

l a s/For t W ort

h , El Pa s o , an d H o u s to n/G alve ston are a s ] affected by this div i s io n [un de s ig n a ted he ad ] (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 [t h at h as b e en ] certified by a California Air Resources Board (CARB) Executive Order [c on c erni ng S tage II vap or re covery s y s te m s ] in ef f ec t as of J anuary 1 , 20 0 2 ( as spe c if i e d in § 1 1 5
. 24 0 (b ) of t hi s t i tle (rel a tin g t o S tag e II V a p or Re c overy D ef initio n s an d Li s t of C al if or ni a Ai r Re s ourc e s B o ard Cer tif

ie d S tage II Equip me nt) ) ; or certi f i ed b y a C ARB Exe c utive Order in ef f ec t af ter Janu ary 1 , 20 0 2 [Au gu s t 1 9 9 3 ], except that the exe cutive dire ctor re s erve s the ri ght to c o ntinue to re co g ni ze any C ARB Exe c utive Order s dec erti f i ed af ter J anuary 1 , 2 00 2 ; or cer tif

i e d b y an al tern a tive proc e d ure whi ch meets t he re qu i re me nt s sp ec if ie d in § 1 1 5
. 24 3 of t hi s t i tl e (re l ati ng to Altern ate Cont ro l Requ ireme nts )
. In additio n :(A) Stage II vapor recovery balance systems which include vapor check valves in a location other than the nozzle shall not be installed; [an d ] (B) Stage II vapor recovery systems which include dual-hang (non-coaxial) hoses shall not be installed; and [. ] ( C ) all vac uum as s i s t S t ag e II vap or r e c overy sy stem s mu st be o n b o a rd ref ue li ng va p or rec overy ( O R VR) co mp a tib le , as def in e d in § 1 1 5
. 2 40 of t hi s ti tl e in ac cordan ce wi t h t h e s c h edu le s in § 1 1 5
. 249 o f t hi s ti tl e . (2) All underground piping must be installed by a person holding a valid License A as defined in § § 3 3 4
. 4 0 1 , 3 3 4
. 4 0 7 , 3 3 4
. 4 24 o f t hi s ti tl e ( re l atin g to Li ce n s e an d Reg i stratio n Require d ; O t h er Re qui re ments f or an Un dergro und S tor ag e T ank C ontain er ; an d Ot h er Re qui re ments f or a n On - S ite S uperv i s or) [ § § 3 3 4
. 40 1

- 3 3 4
. 42 8 of t hi s ti

tl e ( re l ati ng to Un der groun d S tor ag e T ank C o ntractor Reg i s t rati on and In s taller Li ce n s in g ) ]. Piping specifications shall be in compliance withthe 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 StageII 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 app l ic ab le por tio n s o f t h e technical standards for new piping defined by § 3 3 4
. 4 5 (c ) an d (e) [ § 3 3 4
. 45 ( c) ( 1 ) ( A )

- (C ) and ( 3 ) ] of this title (relating to Technical Standards for New Un der gro un d S torag e T ank [U S T] Systems) [an d § 3 3 4
. 4 5 ( e) ( 1 ) of t hi s ti tl e]. (B) No n cor rodibl e [No nc or ro s ive ] 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. Pi pi n g in s tal le d af ter Janu ary 1 , 20 02 sh all n o t in cl ude liquid co ll ec tio n po ints (c o nde n s a te t r a

p s ) unle s s t he as s o ci a ted un der groun d stor ag e tank s : ( i ) w ere in s tall ed pri or to Nov e mber 1 5 , 1 9 9 2 ; an d ( i i) a re no t a t suf f i c ie nt d ep t h t

o a l low f or m inimu m s lope r e qui re ments . (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 Un derwriter s Laboratori e s [UL ] listed f or u s e in v ap or r e c overy sy stem s . (3) The owner or operator shall maintain the Stage II vaporrecovery 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; [an d] ( K) a sy stem monitor or printer t h at i s mal f un cti o ni ng or out of p aper ; ( L) a no zz le , h o s e , break

- aw ay, or any other c omp o ne nt t h at i s no t a pprove d f or u s e wi t h t

he cer tif

ie d vapor rec ov ery sy stem in u s e ; an d ( 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" tagshall 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 te n [1 0 ] 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 frontof 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; an d (B) a warning against attempting to continue to refuelafter initial automatic shutoff of the system (an indication that the vehicle fuel tank is full). [; an d ]


### 27 TexReg 6204 July 12, 2002 Texas Register[ (C ) t h e te leph o ne number o f the T ex a s N a tur al Re s ourc e C o n s erva tio n C ommi s sio n ( TNRC C ) S tag e II V apor Rec overy H o tli ne ( 1

- 8 00

- 5 3 3

- 3 AI R) to be u s e d f or qu e stio n s , co mme nt s , or the rep orti ng of any probl em s e xp erie n ce d wi t h t

h e s y s te m . ] (10) Any motor vehicle fuel dispensing facility that becomes subject to the provisions of this div i s io n [u nde s ig n a ted h ead ] by exceeding the throughput limits of § 1 1 5
. 24 7 [ § § 1 1 5
. 24 7 , 1 1 5
. 2 4 9 ( 2 ) , or 1 1 5
. 24 9 ( 3 ) ] of this title (relating to Exemptions [, and C o unti e s and C o mp li an ce S c he dul e s ]) shall have 120 days to come into compliance and will remain subject to the provisions of this div i s io n [u nde s ig n a ted h ead] 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 h a v i ng an exte n de d c omp li an c e s c he dul e un der § 1 1 5
. 2 4 9 ( 3 ) o f t hi s ti tl e , ] 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 e x ten ded c o mpl i anc e s c h edu le ] 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 c omp o n ent( s ) [c o mpo n ents ( s ) ] previously certified by CARB via an Executive Order, for which certification wa s [h as b ee n ] revoked by CARB, pri or to Janu a ry 1 , 20 0 2 [a s o f Au gu s t 1 9 9 3 ], must install and have operational an [a dif f ere nt ] approved system(s) or component(s) as referenced in p a r agrap h ( 1 ) of t hi s s ec tio n [ § 1 1 5
. 24 2 ( 1 ) of t hi s title (rel a tin g to Emi s s io n S p ec if ic a tio n s ) ] as soon as practicable, but no later than S ep temb er 1 , 200 6 [th ree y ears f ro m t h e d a te that C ARB revoke d the certif ic atio n ]. (12) After November 15, 1993, the owner or operator shallprovide written notification of any Stage II vapor recovery system installation to the appropriate [T NRC C] 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 [TNRC C ] Petroleum Storage Tank [D iv i s io n ] Facility ID number and Owner ID number (if known); (B) - (C) (No change.) § 115.243. Alternate Control Requirements. Alternate [For al l p ers on s in t h e B eaumo nt /Por t Art hur, D all as / Fort W

or

th , El Pa s o , an d H ou s to n /G al ve s to n a re as af f e c te d b y t hi s u n de si g n a

ted h e ad (re l ati ng to C o nt ro l o f V ehic le Re f u e lin g Emi s s io n s ( S tage II ) a t M otor V ehi cl e Fue l D i s pe n si ng Fac il iti e s ) , 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 [s ub s tan ti al ly ] equivalent or gre a ter t han t h o s e af f orde d by t h e re qu ireme nts in § 1 1 5
. 242 ( 1 ) of thi s ti tle ; and (2) the Stage II vapor recovery system i s c ap ab le of m e et
in g t he a ppl ic a b le perf orman c e re quirem ents pre s c rib ed in t hi s div i

s io n , as veri f i ed b y t hird

-p a rty e val u a ti o n c on duc te d by a qu alif ie d in dep e ndent te s ti ng org aniz a tio n u si n g a c ode or stand ard of pr ac tic e , acc ep tab le t o t he e xe cutive dire c tor, whic h has been deve lope d by a n a tio nall y rec og niz ed ag e ncy, as s o ci a tio n , or indepe n de nt te sti n g l ab

oratory [c er tif

ie d b y t h e C al if orni a Air Re s o urc e s B o a rd (C ARB ) ]. § 115.244. Inspection Requirements. Th e [For the B e a u mo nt/ P or t Ar thur, D al l a s/F ort W or

t h , El Pa s o , and H o u s to n/G alve ston are a s , t h e ] owner or operator of any motor vehicle fuel dispensing facility subject to the control requirements of this di

v i s io n [un de s ig n a ted he ad ] (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 u s e [utili ze ] a processor, indicating mechanisms designed by the Stage II vapor recovery equipmentmanufacturer 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 t h e B e a u mo nt/ P or t Art hur, D all as / Fort W

or

th , El Pa s o , and H o u s to n/G al ve sto n a rea s ], 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 meetthe performance criteria proper to the system by successfully completing the following testing requirements u si ng [utili zi n g ] the test procedures as found in the S t a te of T ex a s V a p or Re covery T e s t P ro ce dure s H andb oo k ((h andb oo k) ( M arc h 2 0 02 ) [T ex as N a tur al Re s ource C on s er va

tio n C ommi s s io n S tage II V apor Re c overy T e st P ro ce d ure H an d b o ok (Au g u s t 1 9 9 3 ) ]. (A) (No change.)(B) For bootless nozzle assist systems, the volume-toliquid ratio (V/L ratio) or air- to - l iqu id r ati o (A/L rati o) shall be within acceptable limits.(C) Each system shall meet minimum performance criteria specific to the individual system as defined in the California AirResources Board Executive Order. The criteria and test methods contained in the han d b o ok [T ex a s N a tur al Re s o urc e C o n s erva tio n C om mi s s io n ( TNRC C) S tage I I V apor Rec ov ery T e st Pro ce d ure H an d b o ok (Au g u s t 1 9 9 3 ) ] specified in p a r agrap h ( 1 ) [s ubp aragr a p h (A ) ] of this s ec tio n [p aragr a p h ] shall take precedence for applicable tests where performance criteria exist in both the Executive Order and the h an d

b oo k [S t ag e II V a p or Re c overy T e st Pro ce dure H an dbo ok]; 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 [TNRC C ] regionaloffice 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 a ppropri ate reg io n al of f ic e and any lo c al air p ol luti on pro gr am wi t h j uri s dic ti on [ag en cy ] at least te n [1 0] working days in advance of the test, and the notification must contain the information and be in the format as found in the h an d b o o k [T NRC C S tag e II V a p or Re covery T e s t Proc e d ure H andb o ok ( Aug u st 1 9 9 3 ) ]. Notification 

### PROPOSED RULES July 12, 2002 27 TexReg 6205may take the form of a facsimile or telecopier transmission, as long as the facsimile is received by t h e appropri a te reg io n al of f i ce [TNRC C ] and any local air pollution program with jurisdiction at least te n [1 0 ] working days prior to the test and it is followed up within two weeksof 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 [TNRC C ] 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 [TNRC C ] regional office and any local air pollution program with jurisdiction as soon in advance of the scheduled test as is practicable. [ (2 ) P re s sure dec ay te s ti ng sh all be co n d u c te d annu ally and in acc ord an c e wi t h t

h e te st proc e d ure s re f ere nc e d i n p aragraph ( 1 ) o f t hi s s ec ti on . ] ( 2) [( 3 ) ] Verification of proper operation of the Stage II equipment shall be performed in ac c ordan ce with the te st pro c edure s re f ere nc e d in p aragr a p h ( 1 ) of t hi s s e ctio n at least every tw e lve mont h s [f ive y e a r s ] 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 [TNRC C ] 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 a ppropri ate reg i on al of f i ce an d an y lo c al air pol luti on progr am with j uri s dic ti on [ag en cy ] at least te n [1 0 ] working days in advance of the test, and the notification must contain the information and be in the format as found in the h andb oo k [TNRC C S t ag e I I V apor Re covery T e s t Pro ce dure H an dbo o k ( Au gu st 1 9 9 3 ) ]. Notification may take the form of a facsimile or telecopier transmission, as long as the facsimile is received by the appropri a te reg io n al of f i ce [TNRC C ] and any local air pollution program with jurisdiction at least ten [1 0 ] 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 [T NRC C] 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 [T NRC C] 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 repl ac eme nt of a t le as t on e f ue l di sp e n s er. ( 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 T ex a s Co mmi s s io n on Enviro nme ntal Qu al ity [TNRC C ] or local program inspector with jurisdiction, or by a person who is registered with t h e e xe c utive direc tor to c o ndu ct S t ag e II vapor rec overy te st s [TNRC C by su c ce s s f u ll y c ompl etin g a TNRC C prof ic ie n cy te s t re l ati ng to S t ag e I I V a p or Re covery T e st Proc edure s and Met h od s ]. The requirement to be registered shall begin on November 15, 1993, or 60 days after t h e e xe cutive direc tor [TNRC C ] has established the registry, whichever occurs later. Th e e xe c utive di re ctor [TNRC C ] may remove an individual from the registry of testers for any of the following causes: (A) the e xe c utive di re ctor [TNRC C ] 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 [T NRC C] regional office and any local air pollution control program with jurisdiction within te n [1 0 ] working days of the completion of the test(s) using the format specified in the han d b o ok [TNRC C S tag e I I V ap or Rec overy T e st Pro c edure H an dbo ok (Au gu s t 1 9 9 3 ) ]. For purposes of on-site recordkeeping, the Test Procedures [C over ] 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 h an dbo o k [S t ag e I I V apor Re covery T e st P roc e d ure H an dbo o k], shall be submitted to the appropriate [TNRC C ] regional office and any local air pollution control program with jurisdiction. § 115.246. Recordkeeping Requirements. The [For t h e B e aumo nt / P or t Ar thur, D al l a s/F o r

t W ort

h , El Pa s o , and H o u s to n/G alve ston are a s , t h e ] owner or operator of any motor vehicle fuel dispensing facility subject to the control requirements of this di

v i s io n [un de s ig n a te d he ad ] (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 t hi rd p ar ty cer ti f

i c ati o n( 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 u n der [purs uant to ] § 115.243 of this title (relating to Alternate Control Requirements) and any executive director approval issued un der [pur su ant 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 t hird p ar ty cer tif

ic a tio n ( 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 exe cutive d i re ctor, EP A [T

ex a s N at ural Re s ource C o n s ervatio n C o mmi s s io n (TNRC C ) , the Unite d S t a te s En vi ro nmental Pro tec tio n Age n cy ( EP A ) ], or any local air pollution control program with jurisdiction; or (B) [m ade a vail a b le f or re v iew a t t

h e s ite b y aut h oriz ed repre s e nta tive s o f TNRC C , EP A , or any lo c al ai r p o lluti o n co nt ro l pro gram with j uri s dic ti on wi t hin 4 8 ho urs af ter be in g re que sted b y t h e rep re s entative ] for facilities [ordin aril y ] unmanned at t h e ti me of in s pe c ti on , made a vail a b le a t t

h e si te wit hin 4 8 h ours af ter b ei ng re qu e sted by 

### 27 TexReg 6206 July 12, 2002 Texas Registerauthori ze d r epre s e nt a tive s of t h e e x e cutive di re ctor, EP A , or a ny loc al air p o lluti o n c ont ro l pro gr am wi t h j uri s dic tio n [durin g bu s in e s s h o ur s ]. § 115.247. Exemptions. Th e [For t h e B e aumo nt / P or t Ar thur, D al l a s/F o r

t W ort

h , El Pa s o , and H o u s to n/G alve ston a rea s , t h e ] following are exempt from the requirements of this div i si o n [un de s ig nate d h e ad ] (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 exe c utive direc tor or hi s de s ig n a ted r epre s e nt a tive [ap propri ate T ex as N a tural Re s o urce C o n s ervati o n C o mmi s si on reg i on al o f

f ic e an d an y lo c al air p ol lutio n c o ntro l program wi t h j uri s di ctio n ]. § 115.248. Training Requirements. For all persons [i n the B eaumo nt/ P ort Art hur, D all a s / For t W or

th , El Pa s o , an d H ou s to n /G al ve s to n a rea s ] affected by this div i s io n [un de si g n a

ted h ead ] (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 exe cutive direc tor [T ex a s Nat ur al Re s o urce C o n s erva ti on C o mmi s si on (TNRC C ) ]. S u cc e s s f u l [S u ch su c ce s s f u l] completion shall constitute certification of the facility representative. Each such facility representative is then responsible for making every current andfuture 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 StageII equipment. The following additional requirements apply to the designation of the facility representative. (A) - (B) (No change.) (2) (No change.) (3) An [A TNRC C ] approved training course will include, but is not limited to, the following: (A) - (E) (No change.) (4) Th e exe cutive di re ctor [TNRC C ] 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 t h e e xe c utive direc tor [TNRC C ] to provide such training; or (B) fails to notify t h e e x e cutive dire c tor [TNRC C ] 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 t h e e xe c u tive direc tor [TNRC C ] at least 24 hours in advance of the cancellation, except: (i) for all training providers, if conditions exist suchthat 24-hour notice of course cancellation is impossible or impracticable, notice must be given to the e xe c utive di re ctor [TNRC C ] 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 t h e e xe c utive direc tor [TNRC C ]. § 115.249. Counties and Compliance Schedules. ( a) Th e rul e s in t hi s div i si on (rel a tin g to C o ntro l o f V ehi cl e Re f u e lin g Emi s si on s (S tag e II) a t Mo tor V ehi cl e F u el Di s pe n si ng F aci li

ti e s ) a pp ly t o af f ec te d per s o n s in B razori a, Ch amb ers , Co ll in , D all as , D e nton , El Pa s o , F ort B en d , G alve ston , H ar ri s , H a rdi n , Je f f er s o n , Lib

er

ty, M o ntgo mery, Orang e , T ar

r ant , an d W al ler C ounti e s . (b ) All affected persons [in B r az ori a, Ch amb er s , C o ll in , D al

l a s , D e nto n , El Pa s o , For t B en d , G alve s to n , H ar ri s , H ardin , Je f f er s o n , Lib erty, M ontg o mery, Orang e , T ar

r ant, an d W all er C ou nti e s ] shall co n ti nu e to co mp ly [b e i n co mp li an ce ] with this div i s io n as re quire d by § 1 1 5
. 9 3 0 of t hi s titl e (rel a tin g to C o mpl i anc e D ate s )
. [u nde s ig n a ted h ead (rel a tin g to C o ntro l o f V ehic le Re f u el in g Emi s si on s ( S tag e I I) at M o tor V ehic le Fu el D i sp en s in g Faci litie s ) acc ordin g to t h e f o ll owi ng s ch edu le s : ] ( c) Al l vacuu m as s i s t S tag e II vap or rec overy sy s te m s mu s t be o n

b o a rd ref ue li ng va p or re covery ( O R VR) co mp a tib le ac cordin g to t he f o l lowin g s ch e d u le s : ( 1 ) all in st al l ati on s of vacuum as s i st S tag e II vap or rec ov ery sy stem s in s tal le d on or af ter Apri l 1 , 2 004 , mu st be O R VR co mp a t
ib le ; an d ( 2) all vac uum as si st S tag e II va p or re covery sy stem s in s talle d be f ore A pril 1 , 20 04 , mu s t b e upgraded to an OR VR c omp atib le s y s te m no l a ter t h an April 1 , 20 0 7
. [ ( 1 ) as s oo n a s pr ac ti c abl e , but no l a ter than M ay 1 5 , 1 9 9 3 , or up o n initi al s tar t
-up , whic h e ver i s l a ter, f or faci litie s f or whi ch co n s t

r u c tio n b eg an af ter Nove mb er 1 5 , 1 9 9 0 ; ] [ (2 ) as s o on as prac tic abl e , b ut n o l a ter th an Nove mb er 1 5 , 1 9 9 3 , f or faci litie s wit h a mo nt hly t hro u g h p ut o f a t le as t 1 0 0 , 0 00 g all o n s o f g as ol in e . F or t h e p urpo s e s of t hi s p a r agr a p h , t h e m ont hly t hrou g h p ut sh all b e b a s e d o n t h e max imu m mont hl y g as ol in e th ro ug h

p ut f or any c ale nd ar mo nt h af ter J anu a ry 1 , 1 9 9 1 ; ] [ ( 3 ) as s o on a s practic a b le , but n o l a ter t h an Nov e mber 1 5 , 1 9 9 4 , f or all other fac ili ti e s , e x c ep t t h a

t in div idual i ndepe n de nt s mal l bu si ne s s ma rketers o f g as o lin e (I S B M G) , as def in ed in § 1 1 5
. 1 0 o f t hi s ti tl e (re l ati ng to D e f i ni ti on s ) , may peti tio n the exe c utive direc tor f or an exte n s io n o f t h e co mp li an ce de adli n e to D e ce mb er 2 2 , 1 9 9 8 , or unti l o ne or more o f the f ac il ity ’ s g as ol in e s torag e tanks a re rep l ace d an d /or e qu ipp ed wi t h c orro si o n protec ti on a s re qui re d by the Pet rol eum S tor age T ank ( PS T ) D iv i s io n of t h e T ex as N at ural Re s o urc e C on s ervati on C o mmi s si on ( TNRC C) , whi ch ever o c curs f i rs t, prov ided t h a

t the peti

ti on i s s ub mitte d n o l ater t h an Janu ary 1 5 , 1 9 9 4 , an d approve d b y the exe cutive dire c tor. The avail ab ili ty o f an exte n de d co mp li an c e s c he d

u le f or in dep e nde nt s mal l bu s in e s s ma rketers o f g a s o li ne o nly app li e s to in divi d u al f ac il iti e s f or whic h the mo nt hly g as o lin e th rou g h p ut i s le s s t h an 5 0 , 00 0 g all o n s p er mo nt h , b a s ed o n t h e max imum mo nt hly g as o li ne t hro u ghp ut f or any c ale nd ar mo nth af ter January 1 , 1 9 9 1
. I n order f or t h e s tati on to maintain I S B M G co mp li an ce d a te exte n sio n st a tu s u nder t hi s p a r agrap h , the f aci lity s h al l n ot e x c e ed t h e 5 0 , 0 0 0 g al lo n s p er mo nt h g a s o li ne t hro ug hput l imit , an d t h e own er or op er a tor s h al l s ub mit t h e fac ili ty ’ s mo nthl y g as o lin e t hro u ghp ut on an annu al b as i s no l ater than J anu a ry 3 1 o f e ac h ye a r to th e a ppropri ate TNRCC reg i on al o f

f ic e an d an y l oc al ai r p ol luti on co nt rol program with j uri s di ctio n u n ti l su ch time a s t h e S tage I I vap or rec overy s y s te m i s in st al le d ; an d] 

### PROPOSED RULES July 12, 2002 27 TexReg 6207[ (4 ) if more than o n e o f t h e co mp li an ce s c he dul e s in p ara graph s ( 1 )

- ( 3 ) o f t hi s s ec ti on appl ie s to a fac ili ty, the e arli e s t co mp li

anc e s c h edu le s hall take pre c eden c e . ] 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 § 115.741The 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 consistentwith, 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 (27TexReg 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 eachflare at an account. In order to correct this inaccuracy, the commission is proposing to establish an emission rate of 7.4 poundsper hour for all highly-reactive VOC from each flare at an account. Therefore, any references in other rules to § 115.741 areintended 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 reductionsrequirements 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, concerningRecordkeeeping 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 RegisterRobert 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.usTexas 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).Texas Natural Resource Conservation Commission Chapter 115- Control of Air Pollution from Volatile Organic Compounds Rule Log Number 2002-012-115-AI
SECTION BY SECTION DISCUSSION Page 2

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.Texas Natural Resource Conservation Commission Chapter 115

- Control of Air Pollution from Volatile Organic Compounds Rule Log Number 2002-012-115-AI Page 3

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 toTexas Natural Resource Conservation Commission Chapter 115- Control of Air Pollution from Volatile Organic Compounds Rule Log Number 2002-012-115-AI Page 4

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).Texas Natural Resource Conservation Commission Chapter 115

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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.Texas Natural Resource Conservation Commission Chapter 115 -Control of Air Pollution from Volatile Organic Compounds Rule Log Number 2002-012-115-AI Page 6

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 theTexas Natural Resource Conservation Commission Chapter 115

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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.Texas Natural Resource Conservation Commission Chapter 115

- Control of Air Pollution from Volatile Organic Compounds Rule Log Number 2002-012-115-AI Page 8

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 7,400Texas Natural Resource Conservation Commission Chapter 115

- Control of Air Pollution from Volatile Organic Compounds Rule Log Number 2002-012-115-AI Page 9

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.Texas Natural Resource Conservation Commission Chapter 115- Control of Air Pollution from Volatile Organic Compounds Rule Log Number 2002-012-115-AI Page 10

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.Texas Natural Resource Conservation Commission Chapter 115

- Control of Air Pollution from Volatile Organic Compounds Rule Log Number 2002-012-115-AI Page 11

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 toTexas Natural Resource Conservation Commission Chapter 115

- Control of Air Pollution from Volatile Organic Compounds Rule Log Number 2002-012-115-AI Page 12

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.Texas Natural Resource Conservation Commission Chapter 115

- Control of Air Pollution from Volatile Organic Compounds Rule Log Number 2002-012-115-AI
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT Page 13

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 smallTexas Natural Resource Conservation Commission Chapter 115

- Control of Air Pollution from Volatile Organic Compounds Rule Log Number 2002-012-115-AI
businesses as for larger businesses and the portion of costs attributed to the ORVR upgrade are assumed to be one-time costs.

LOCALEMPLOYMENTIMPACTSTATEMENT Page 14

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.

### Texas Natural Resource Conservation Commission Chapter 115

- Control of Air Pollution from Volatile Organic Compounds Rule Log Number 2002-012-115-AI Page 15

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 dispensingTexas Natural Resource Conservation Commission Chapter 115- Control of Air Pollution from Volatile Organic Compounds Rule Log Number 2002-012-115-AI Page 16

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 theTexas Natural Resource Conservation Commission Chapter 115- Control of Air Pollution from Volatile Organic Compounds Rule Log Number 2002-012-115-AI Page 17

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.Texas Natural Resource Conservation Commission Chapter 115- Control of Air Pollution from Volatile Organic Compounds Rule Log Number 2002-012-115-AI Page 18

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.

### Texas Natural Resource Conservation Commission Chapter 115

- Control of Air Pollution from Volatile Organic Compounds Rule Log Number 2002-012-115-AI
SUBMITTAL OF COMMENTS Page 19

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.Texas Natural Resource Conservation Commission Chapter 115- Control of Air Pollution from Volatile Organic Compounds Rule Log Number 2002-012-115-AI Page 20

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 theTexas 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; andTexas 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 NozzleTexas 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 WayneVac 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 SystemTexas 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 theTexas 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. TheTexas 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. ForTexas 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 asTexas 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 StorageTexas 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, 2002SECTION 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.)

11THE 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 1-1significant 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.

1-2CHAPTER 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.

2-1CHAPTER 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.

4-1CHAPTER 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-lCHAPTER 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.

6-1CHAPTER 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.

7-1CHAPTER 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.

8-1CHAPTER 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.

9-1CHAPTER 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 YungP.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 

# 8AUG-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 ofTexas. 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 

# GRUG-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 ORVR. explained in the '"Background and Summary of the Factual Basis for the Proposed Rules" states that upgrades to ORVR**~:~n:** expected to cost $1, J00 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 ofproper 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'KellyOS/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:or 11 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 ofpersons 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 

### ofsystem 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 ofthese 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%00208/12/2002 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 ofannual 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 oftest 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 ofsystem testing records would not interferf': with 

### the quality ofsurprise 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 ofthe 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 ofthe 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 ofthe 

### 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** 

### ofthe Stage II Return lines may be required 

### to establish the reason for the deficiency and 1 

### 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 ofgallons offuel are dropped each year and millions of gallons ofvapor 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 /il0 

# 2 P.O. Box 3021 

### W-6 Houston. Texas 77253-3021 

### OFF1Ct: Ur t·''····-if::.:-i\ 1 

### TAL 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 106), 

### 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. Sincerely,
.

# ~**~** Brandt Mannchen
· Conservation Committee Houston Sierra Club 

### 5431 Carew Houston, Texas 

### 77096 H713-664-5962, \V713-640-4313

2August 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) 380-7215efficiency 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) 459-1459UNITED 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 BrittrnooreRoadHouston, Thxas 77043 (713) 467-4244 (800) 68-TANKS (713) 467-6339 FAX: (713) 465-8207 Page 1 of 4 

# 8From: 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 of41 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 4from: 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 ofGasoline 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 of115.242 (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 ofjust 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 ofthe 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 availablefor 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, Dallas8/12/2002 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



### 1is 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.



### 3The 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.



### 4The 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



### 5to 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



### 7systems 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


### 8requirement 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.



### 9Nevertheless, 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,

10as 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



### 15meeting 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 pre
### 18

### 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


### 19certification. 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



### 23the 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.

25Valero 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



### 26opening 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


### 28Chapter 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 becau se 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-2 005-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.

4SUBCHAPTER 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)

6CARB 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 ConVault 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



### 7CARB 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 8CARB 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 9CARB 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



### 16equipment 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

23the 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

25results 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.

32REVISIONS 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 1-1significant 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.

1-2CHAPTER 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.

2-1CHAPTER 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.

4-1CHAPTER 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.

5-1CHAPTER 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.

6-1CHAPTER 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.

7-1CHAPTER 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.

8-1CHAPTER 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.

9-1CHAPTER 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 correc tional authorities regardingoffenses. 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 th e 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 Prost hetics Effective date: November 27, 2002 Proposal publication date: August 23, 2002 For further information, please call: (512) 458-7236 

### ♦♦♦ 22 TAC §821.11, §821.13The repeals are adopted under Texas Occupations Code, Chapter 605, which provides the Texas B oard 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 Sec retary 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: Au gust 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 OPERATI ONS 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 commi ssion also adopts revisions to the state implementation plan (SIP) narrative, Stage II Vapor Recovery Program SIP Revision. The comm ission will submit these amended rule sections and revised SIP narrative to theUnited States Environmental Protection Agency (EPA) as revisions to the SIP. Sections 115.240, 11 5.243 - 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, 1 15.241, 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 Sta ge II rules and SIP narrativeon October 16, 1992 (revised on November 10, 1993) to satisfy gasoline vapor recovery requirements of the Federal Clean Air Act (FCAA), §182(b)(3) (c odified as 42 United States Code (USC), §7511a(b)(3)). EPA requi res that all Stage II vapor recovery systems be capable of achieving at least 95% vapor control efficiency. As an alte rnative to testing each station for 95% control efficiency, states can require that inst alled systems becertified by the California Air Resources Board (CARB), certified using CARB test proc edures 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 acompletion date of April 2003, after which it will no longer certify non-EVR system s. 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 comp atible with onboard refueling vapor recovery (O RVR) 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 requir ed every three years. Also, to decrease the amount of excess emissions caused by incompatibility between ORVRand Stage II vapor recovery systems, the commission will require new St age 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 commissio n believes that the increased testing frequency andORVR compatibility requirement will continue to satisfy the federal requirement to maintain a vapor recovery rate of 95%. The commissi on 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 respons e 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 C ommission on Environmental Quality because the rules will become effective after the date the name change occurred, 

### ADOPTED RULES November 22, 2002 27 TexReg 10935September 1, 2002. The term "commission" has been changed to "executive director" in each location where the action being taken is directly associated with the exe cutive 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 change s 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 Sta ge 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 amendmen ts also add section titles the first time each section is referenced in §115.227. Subchapter C, Division 4, Stage II Vapor RecoveryThe amendments to §115.240, Stage II Vapor Recovery Definitions, include stylistic chan ges previously discussed in this preamble. The amendments delet e 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 in dustry-specific terminology presented in the rules, which include the definitions for onboard refueling vapor recovery and onboard refueling vapor recovery (ORVR) compatible . The amendment s 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 Ca lifornia 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 control s 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 citati ons 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 theexecutive director to continue to recognize any Executive Orders which CARB decertifies in the future. Due to the federalmandate requiring motor vehicle manufacturers to make vehicles equipped with ORVR, the incompatibility between ORVR and Stage II va por recovery is addressed because this incompatibility may prove to be a new source of emissions. In order tomaintain SIP integrity and to prevent new emissions, the amendments inclu de a compliance schedule for gasoline dispensing facilities to upgrade their Stage II vapor recovery systems to beORVR compatible. The amendments also eliminate the requirement to pos t 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 invo lving 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 recover y 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 divis ion 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 n onattainment 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 su bject to the controls of the divisionand place the reference in §115.249, where it more appropriately belongs. The title of the test procedures handbook has been changed to "Vapor Re covery Test Procedures Handbook" and the regulatory guidance number (RG-399) and date of the current handbook have been added. The amendments also delete several superfl uous references to the acronym TNRCC, and change "TNRCC" to "executive di rector" 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 equipmen t 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 e ach 12-month period. TXP-101 and TXP-103testing must be performed at least once in each 36-month period. The terms "12-month period" and "36-month period" are used in the cal endar sense and are not meant to imply a specific number of days. For example, if a full system test was completedin 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 u ntil 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 3 1, 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 r equired, then the following system test would be due no later than August 31, 2005. Finally, thecommission 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 Registersubject to the controls of the division and place the reference in§115.249, where it more appropriately belongs. Other amendments include changing the term "undesig nated 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 changin g 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, Exempt ions, 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, an d 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 chang e "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 co unties 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 complianceschedule for ORVR compatibility has been changed from proposal because the commission wi ll 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 w ith 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 com ponents 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 c ommission 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% prescrib ed 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 n onattainment 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 in cur 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 defini tion 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 s et 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 require ment 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 ofthe 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 thefour applicability requirements. Specifically, the amendments implement requirements of 42 USC, §7511a(b)(3), (c), and (d) and Texas Health and Safety Cod e (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 comment s. TAKINGS IMPACT ASSESSME NT The commission evaluate d 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 reason ably 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 ga soline 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 prov isions 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 system s 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 w ith 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 amen dments is to continue to satisfy federal requirements for vapor recovery from gasoline dispensing facilities innonattainment areas of the state. The amendments substantially adva nce this stated purpose by requiring more frequenttesting and upgrading of vapor recovery systems at these gasoline stations. Promulgation and enforcement of these amendments wou ld be neither a statutory nor constitutional taking of private real property. Specifically, the amendments do not affect alandowner’s rights in private real property, because this rulemaking acti on 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 requi red 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 p rocess for vapor recovery equipment. CARB is implementing an enhanced program thatwill 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 r ules 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 Coasta l Management Program, commission rules governing air pollutant emissions must be consistentwith the applicable goals and policies of the CMP. The commission reviewed this actio n for consistency with the CMP goals and policies in accordance with the rules of the Coastal CoordinationCouncil, and determined that the action is consistent with the applicable CMP goals and p olicies. 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 ar eas (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 appl icable to this rulemaking action is the policy that commission rules comply with federal regulations in 40 Codeof 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 wit h 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 rule s 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 p ermits 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 A ugust 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 C lub, 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, 3 9 days after the close of thecomment period, an American Petroleum Institute (API) sponsored report entitled Refueling Em ission 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 op position to the proposal. B & B, ICE, Oncor, Sierra-Houston, Tanknology, UST Services, Valero, 7-Eleven, and one individual suggested changes and/or expressed concerns regardin g the proposed rule language. General Comments Valero commented that it gen erally supports the proposed rules as stated as a financially less burdensome method to maintaincompliance with Stage II systems at 95% efficiency. EPA commented that it agrees in pri nciple 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 bu siness reasons. ICE commented thatit 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 o f operation of Stage II systems. The commission apprec iates the support and agrees that the adopted rules will improve the quality of operation of Stage II systems, will better ensure Stag e II system compliance, and are financially less bu rdensome than the CARB EVR program. Sierra-Houston com mented 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 dispen sing facilities in the State of Texas. Nevertheless, the commission acknowledg es that dispensing gasoline from a Stage II vapor recovery system into ORVR- equipped vehicles prese nts pressure-related con cerns in addition to the pressure-related fugitive emissions normally occurring at gasoline dispensing facilities. Therefore, the commission opted to imple ment an ORVR compatibility requirement. ORVR compatible Stage II vapor recovery systems are currently available in the market; therefore, the commission determined that implementin g 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 pop ulation. The commission made no changes in response to this comment. 

### 27 TexReg 10938 November 22, 2002 Texas RegisterCompliance Date Sierra-Houston commented that the proposed implementation date of April 1, 2007 for recent ly installed vacuum assisted systems will leave little time for these contr ols to begin reducingVOC levels, and little time for the commission and other air enforcement agencies to ensure the controls have been installed. Sierra-Houston recommended November 1 5, 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 re covery 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 re ferred 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, StageII Vapor Recovery and the Revised National Ambient Air Quality Standards (NAAQS) , November 3, 1998, which states, "It willtake 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 respo nsible 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 availabilit y of replacement assist systems (currently CARB ce rtified as ORVR compatible), and contacted Stage II vapor recovery manufacturers to project when potential retrofits (including CARB EVR systems which meet the ORVR compatibility r equirements) 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 re asonable 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 va lve 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 w ill 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, cit ing $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 exi sting vacuum assist systems. Healy Systems, In c. currently holds two CARB certifications, CARB Executive Orders G-70-186 and G-70-191, for ORVR-compatible vacuum assist Stag e 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 fu eling 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 compatibilityissue. One option is a nozzle that employs the use of hydrocarbon sensor technology. Another option is a membrane processor. The commission has been a ssured by Gilbarco that itintends 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 syste ms 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 un derstands 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 reiterat es that it is important for owner/operators to communicate with their res pective manufacturers to determine what kind of retrofit, if any, will be made available to them. The commission has take n 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 e ither balance systems or vacuum assist systems certified to be ORVR compatible. The commission isconfident 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 noz zles 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 fue l will be lost in the form of vapors. The commission a ppreciates 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 di spensing facilities in the Texas nonattainment areas are vacuum assist systems. Therefore, the commission believes that the projected emissions savings resulting from the ORVR compatibi lity 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 10939EPA 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 mainta ins that if EPA accep ts third-party evaluations conducted by qualified independent testing organizations as appropriate for the purposes of certifying release detection methods for gasoline dispensing facili ties, 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 th e 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 h as agreed, for a limited time, to certify systems for the ORVR c ompatibility mod ule, independent of the certification test ing 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, 19 96 version). The CARB certification process requires that most of the costs to test and certifyequipment be absorbed by the equipment manufacturers. However, CARB does fund some o f the testing equipment and staff to oversee the testing. In the commi ssion’s third-party certification program, the third-party laboratory or engineering firm would provide the staff to oversee the testing at the expense of theequipment manufacturer. The commission staff will review a final report and provide an approval letter if the third-party company meets the agreed cr iteria. The commission has made no changes in response to this comment. Stage II Tester RegistryValero stated that it supports the certification of all testing companies and their personnel by the commission, an independent laboratory, or an ind ustry 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 exp ressed some ambivalence about the proposedtester registry, but supported a stronger tester certification program with requisite training and an enforceable system to ensure tester compe tence 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 stat ed 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 faci lity 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 ju st 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 performe d without a certification. B & B supported mandated certification of testers with independent training and a standardstate test. UST Services stated that in order to achieve 95% efficiency, it is essential that the Stage II testers achieve a level ofcompetency 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 rec overy 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 au thorize any type of occupational licensing or certification program for vapor recoveryequipment installers, repair technicians, or testers. It is not commission practice to establish and regul ate a licensing program without explicit statutory author ity. The commission’s licensing programs are based on the authority provided in Texas Water Code (TWC), Chapter 37. Although ther e 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 adm inisters, such as UndergroundStorage Tank Contractor Registration/Installers and Leaking Petroleum Storage Tank Corrective Action Specialist/Project Managers, there are no provisions i n 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 f unction of their equipment or to license the persons performing the function. The first method can be accomplished with the commi ssion’s current staffing while implementation of a licens ing program will require additional staffing. Due to current staffi ng 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 comm ission eliminate the 125,000-gallon throughput exemption and require Stage I vapor recovery statewide to improve air quality. Valero commented that this would standardize th e 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 m ore 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 ter minals 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 imple mentation. The commission d isagrees 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 st andardize the procedures used by fuel carriers andenhance 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 vapo r recovery standards throughout the state may placean unnecessary hardship on facilities which are located in counties that are in compliance with the NAAQS and in which aggregate gaso line 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 reg ard 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 Registerthe 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 comm ission made no changes tothe Stage I vapor recovery standards in response to these comments. Equipment IssuesValero stated that the proposed language regarding malfunctioning printers in §115.242(3)(K) wi ll result in unfair enforcement for owners and operators who may have a properly functioning Stage II vapor recovery system. Some systems are required in th eir CARB Executive Orders to possess system monitors becaus e 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 malfuncti oning in such a way that prevents the investigator from determini ng proper system operation, there has to be a mechanism in place that requires the owner/operator to replace or repair the mo nitor. 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 rec over 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 infractio n 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 system s 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 Sta ge II system. The commission con curs that it is unreasonable for facility representatives with vacuum assi st systems to determine whether or not a vacuum producing device is "inoperative or defective" under all circums tances. 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/ope rator’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 crimpe d or flattened hose should be tested for a vaporblockage 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 Observa tion Program (TOP) ICE and UST Ser vices commented that the TOP will take up a lot of the commission’s time, and will cost owners and operatorsmore 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 thecity 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 teste d. 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. I CE 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 te sts or inspect the Stage I adapters with gauges. ICE and UST Services also commentedthat the data gathered via their program would provide the commission with information for new r egulations and/or the SIP. The commission believes that TOP a ctivities 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 b elieves 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 becau se commission stat istics show thatwhen Stage II tests are observed by qualified enforcement officials, malfunctioning vapor recovery systems are more likely to be detected and repaired. T his program will allow the commission to definitively determine which vapor recovery systems areoperating at the certified efficiency, and will also allow the commission to ascertain wh ich testers are following proper testingprocedures. The commission also believes that working in conjunction with the local programs will provide sufficient work force to ensure full complia nce 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 a lready 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 i s 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 HandbookValero 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 i ntroduction 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 CARBExecutive 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 10941have 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 i s 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 sy stems 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 recomm ended 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, a nd 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 require ment at the site. They cited that the blockage test is designed to verify proper installation of the system, not necessarily proper syst em 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 th at 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 poss ibility to develop problems over time, such as vapor blockages. Nevertheless, the commission shares the commenters’ concerns about syst em 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 pro cedure 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 witho ut breaking piping junctions at each dispenser. Furthermore, any alternative method approved by the executivedirector (e.g., CARB TP-201.5) must also include an introduction of gasoli ne 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. Onco r 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 l anguage 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. IC E 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 ope rators 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 noti fication 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 re presentative 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 commente d that the enforcement of regulations regarding recordkeeping could take away from the commission’s ability to en force vapor recovery system compliance, postulating that recordkeep ing 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 commiss ion should consider following the recordkeeping requirements outlined in 30 TAC Chapter 334 forthe Stage II test reports so as to provide consistency and simplification. They point ed 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 fil es 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 submitt ed 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 p rocess 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 inspectio ns, 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 modifi ed 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 t hese 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 jurisdictionso as to allow for proper administration of the rules by authorized personnel. The commission believes that on-site review oftest records during inspections provides Field Operations Division personnel a perspective on the operation and maintenance at a part icular facility over time. The commission prefers thatrecords be kept on-site so as to facilitate unannounced inspections required in accordance wi th 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 co mmission believes that there are adequate resources to 

### 27 TexReg 10942 November 22, 2002 Texas Registerenforce 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 require ments should conform to the recordkeeping requirements outlined in Chapter 334 forthe 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 exam ine the test results submitted to assure compliance with the regulations and create atest results database that is reconciled monthly. The commission believes that the current pro cedures are sufficient to assure compliance with the regulations. However, because the SIP hashistorically required 100% of the facilities to be inspected, commission and local program inves tigators 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 staffin g 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 wil l 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 ado pt 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 wi th the policy and purposes of the TCAA. Theamendment is also adopted under THSC, §382.002, concerning Policy and Purpose, which establishes the commission’s purpose to safegu ard 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 authorize s 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 cou nsel and found to be a valid exercise of the agency’s legal authority. Filed with t he 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 authorizethe commission to adopt rules necessary to carry out its powers and duties under the TWC; and under THSC, §382.017, concerning Rules, which authorizes t he commission to adopt rules consistent with the policy and purposes of the TCAA. Theamendments are also adopted under THSC, §382.002, concerning Policy and Purpose, which esta blishes the commission’s purpose to safeguard the state’s air resources, consistent with theprotection of public health, general welfare, and physical property; §382.011, concerning Gene 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 tra nsportation 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 Re covery 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 rec over hydrocarbon vapors that escape during refueling. (2) Onboard refueling vapor recovery (ORVR) compatible - A vacuum assist Stage II vapor re covery 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 dispen sing facility. (b) The table in the fo llowing 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 10943Alternate 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 b y 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 MotorVehicle 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 Requirement s. 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 S tage 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 s hall be inspected at least monthly. (4) For all systems, the c omponents 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 asfound in the Vapor Recovery Test Procedures Handbook (test procedures handbook) (RG -399, November 2002). (A) For balance and a ssist 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 througha 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 a s defined in the California AirResources Board Executive Order. The criteria and test methods contained in the test procedures handbook sp ecified in paragraph (1) of this section shall take precedence for applicable tests where performancecriteria 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 withjurisdiction at least ten working days in advance of the test, and the notification must contain the information and be in the format as found inthe 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 c ancellation is not anticipated prior to 24 hoursbefore 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 accordanc e 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 occursfirst. The verification shall include all functional tests that were required for the initial system test, except for TXP-101, Determination ofVapor 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 withjurisdiction 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 pro cedures 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 Registerpollution 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 conduc t 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 falsifi es test results for tests conducted to fulfill the requirements of this section. (5) The owner or operator, or hi s or her representative, shall submit the results of all tests required by this section to the appropriate regional office and any lo cal 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. Thedetailed 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 vehicl e 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 p aragraph, 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 assi st 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, mus t 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, 20 02 Proposal publication date: July 12, 2002 For further information, please call: (512) 239-0348 

### ♦♦♦ CHAPTER 292. SPECIAL REQUIREMENTS FOR CERTAIN DISTRICTS AND AUTH ORITIES SUBCHAPTER A. GENERAL PROVIS IONS 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 distr icts that have been determined to function as river authorities to adopt administrative policies that willgovern district activities and board member conduct. The commission identified 20 dis tricts 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 A dvisory 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