Kathleen Hartnett White, Chairman 

Larry R. Soward, Commissioner 

Glenn Shankle, Executive Director 

RECEiVED _ 6Po· 

AIR PLANNING SEl. 

0 7 JUL 3 0 PH 4: 5 I 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

Protecting Texas by Reducing and Preventing Pollution 

July 25, 2007 

Richard E. Greene, Regional Administrator 

U.S. Environmental Protection Agency- Region 6 

1445 Ross Avenue 

Dallas, Texas 75202-2733 

Dear Mayor Greene: 

Docket No. 2006-1996-RUL 

On June 27, 2006, the Texas Commission on Environmental Quality (Commission) adopted a revision to the 

State Implementation Plan (SIP). 

The Commission adopted amendment to section 115.247 in 30 TAC Chapter 115, (Volatile Organic 

Compound Transfer Operations), and corresponding revisions to the SIP. The adoption would exempt 

facilities used exclusively for the initial refueling and/or refueling of vehicles equipped with onboard refueling 

vapor recovery (ORVR) equipment from Stage II requirements in Chapter 115. 

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

hearings, and the accompanying order. I look forward to your expeditious approval of the SIP revision. 

Sincerely, 

&d~f/)/;J~ K thleen Hartnett White 

C airman 

KHW/pd 

Enclosures 

cc: The Honorable Rick Perry, Governor of Texas 

Mr. Zak Covar, Office of Budget, Planning and Policy, Office of the Governor 

Mr. Glenn Shankle, Executive Director, Texas Commission on Environmental Quality 

P.O. Box 13087 • Austin, Texas 78711-3087 • 512/239-1000 • Internet address: www.tc~q.state.tx.us 
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

THE STATE OF TEXAS 

COUNTY OF TRAVIS 

This is to certify that the attached are true and correct copies of documents for revision to the Texas 

State Implementation Plan, adopted on June 27, 2007, pursuant to 40 Code of Federal Regulations (C.P.R.) § 

51.104. I am the records administrator for the Air Quality Division of the Texas Commission on 

Environmental Quality (Commission). 

8t~U.({}~d Susana M. Hildebrand, P.E., Director 

Air Quality Division, Chief Engineer's Office 

Texas Commission on Environmental Quality 
Texas Commission on Environmental Quality 

Public Hearing 

February 27, 2007 

Concerning Revisions to 30 T AC Chapter 115 

Control of Air Pollution from Volatile Organic Compounds 

Stage II Vapor Recovery Rule Revision 

Rule Project No. 2006-049-115-EN 
INTRODUCTION 

The Texas Commission on Environmental Quality (commission) held a public hearing in Austin on 

February 27, 2007, to receive testimony regarding revisions to 30 TAC Chapter 115, Control of Air 

Pollution from Volatile Organic Compounds; and corresponding revisions to the state 

implementation plan. 

The comment period closed on March 15, 2007. All testimony and comments have been reviewed 

and seriously considered. This hearing record 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 (including Order and Texas Register publication) 

Additional copies of this hearing record are maintained in the TCEQ central office at 12100 Park 35 

Circle, Austin, Texas 78753. For further information, please contact Kay Howard, Air Quality 

Division, at (512) 239-2306. 
PUBLIC

NOTIFICATION AND

PROPOSAL
PUBLIC NOTIFICATION 

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

1. Publication of notice of public hearings in the following newspapers on the date listed: 

Austin American-Statesman: January 16, 2007 

Beaumont Enterprise: January 16, 2007 

Dallas Morning News: January 16, 2007 

El Paso Times: January 16, 2007 

Houston Chronicle: January 16, 2007 

2. Publication of the proposed rules in the January 26, 2007, issue of the Texas Register 

(32 TexReg 282). 

3. Publication of the Notice of Public Hearing in the January 26, 2007, issue of the Texas Register 

(32 TexReg 417). 

4. Correspondence forwarding the notice of public hearings to the following officials and agencies: 

Speaker of the House 

Lieutenant Governor 

Alamo Area Council of Governments 

Capital Area Planning Council 

City of Victoria Planning Department 

Dallas Department of Environmental and Health Services 

Dallas Department of Aviation 

East Texas Council of Governments 

El Paso City-County Health and Environmental District 
El Paso Metropolitan Planning Organization 

Federal Highway Administration 

Fort Worth Environmental Management Department 

Galveston County Health District 

Houston Department of Health and Human Services 

Harris County Pollution Control Department 

North Central Texas Council of Governments 

Houston-Galveston Area Council 

South East Texas Regional Planning Commission 

Texas Department of Transportation 

Texas Transportation Institute 

Arkansas Department of Pollution Control and Ecology 

Louisiana Department of Environmental Quality 

New Mexico Environmental Department 

Oklahoma Department of Environmental Quality 

U. S. Environmental Protection Agency 
NOTICE''. OF ··PUBLIC 

HEARINGS ;:.8'(./THE , TEX 

AS .. · .... COt.\MISSION)' ON 

'EI\IYJ:i!ONMENlcAL 

Q' U A'l.. I· T 'Y . 0. N 

PROPO.SED REVISIONS . 

TO 30 TAC CI'IAPJERJ15 

AND TO THE STATElf\' IMPLEMENTATION'P ' .. . 

' ,. >:'k'h :, ~.;,-.<.·-~{;~- .. . . Tn~ TE>x~~i{.C ..... n. on ' Environmim ··· .... ·. ali 

ly. ·wiJI····.· concJu,cf}~ fl.UbJi.~ 

hearings .to iec~ive':"'fest! 

mo~l'Y~\\:_c_on_~ern!n9 tf~~v1 

sions to 0115.24l of!;30 

i TA<;, Chapter 1 )?, ,:<ion f trol' of ·Air ·Pollut!on :from J. Volatile Oranmc' Com f ~-.__~ .. :;::!!~~·(" -'''-' ' - -•',-• -<•o' '. '·' ' • • 

EL PASO TIMES 

January 16,2007 

-~-~ -~ ___ ,_:-:-::;J.":?:''".::·:_·;_-~·,_ 

Persons· w~~. 't'~v~' ~pe cia I_ COinniUOiCafiOn :.or 

/oihef· hccommodation ··~·e~s> w,hp, are pla"'ning 

to>atiend ·the hearings 

shCiu,ld <contact ... Jennifer 

StiHieirifiii;,': · .A.i r :)~~a I ity 

Qivision, at .• ]51,~);,2397 

~~~l:·~,s .. ·%~~1·~~'f'~rb milled to1 'Patricia ·•Duron, 

MC. 20~, ... Office ... of.. legal Seriic~s;, T e~as; 'Co"'mis 

sion··.,· . .;ft;i4Envir'onniental 

quality,' P;O,Box,'J3087, 

Au~.tirn,•Te~as;<l~]J 1·~ , 30B7,Fc'iw 'fqxec! J<t;)5J~) 

)'139:4BOBolk• .·' Electronic I commen.'s ll)Oy be SUb 

. mitt!'d'.' at . ~itp:/ZViww.5. tee<(,: ~ta.'e ·: ·'<~t.J<.;, us;[U,les/ ei:'omm&nts·;: ··All:" ,cam 

lll~f1.'• .··•, should .: ref'1r~ncEI Rule.rProiect : N~"tTib'!r 2006-049.115-EN •. ;;g·:rne 

commen.t.!;;p-,;riod, .. closes ··· f,i,circh JS;' 200l;Y Copies 

of. .th.; proposed; r~l~ can b~· .obtained from -!he 

com"'ission's. Web ;-sit~·- at ;http:{/,rrv;,w:tceq.stat~:t~• 

: osfnavln!l es/ pro posl>:..', adopt.htl'l)l;(": For further 

infor(lloli<>itr' please . cory ioct'/.Koy;;.Howard .~ •• Air 

. Quali\f .Di:-:is)i:m, at {512) )39-2306 .. ·. 1'~~\ 

l>sue<l : in' Austin, , 1exl!s . on January 10, 2001 ' ' ., 

Leual Nolic&s~.:~~fj~~;;<~:~'n52 · pounds, under the re quirements. of. Texas 

Health and Sofely Code, 

0382.0ll; .. Texas Govern 

men! . Code, Chapter 200], Subchapter B; and 

40. Code of Federal Re 

gulali?:"' 05].102, of the 

United' Stale• Environ 

mental ProJedicm Agen ·9' [EPA)· reguJatio[15 con ··earning slate,.'•: !111P.Ieml>.'!: 

. ~tcitio,n plans (SIPs).'Si(~\.~J} 

Jbe;, prop,osed :; ~rlferid ment,;to <>U5.24hwould 

9);em~f:. facilitlei · us~d .. ex tlusively lor :the . m<!lal 

fueling and/or . ~e-~uehng 

of vehicles equ1pped 

with on board .. refueling 

vapor recover equipment 

from . Stage .· II require ments inChaplerJ15. 

The'.,··c?:mmission-wiiL hold 1 

• public:,:heorin'gs:~,Hri'i:;.t,nis proposal in ::Auslln,c.:on .• Fe 

. brual)' 17, 2007, at 2:00 

· .!l"·\nc;;;·at, . .t9!'.}ex?s Com mtsslon>?-;on~·~J::_Envtronmen 

tal ·,!Ol,~olit}i ;:;fiJomplex lo , . cati.lf• ·a('·12)oo Park 35 

.Cir~l~.· ir\ .. Building, .. F, ' . Room••• 22.10; ,on(• .in Ar 

'Ji •' ori · February : 28, · 

·2 · ·•· !'oii:"e:m:' a(t~e . . . . Jir)gio0.,,council 

Chambers docated at .101 

WeiA eM,~ ·· · ·· Jh,e 

r~~~i"1ifz . . . 'r.~f . oral;'l;r· ,Xiftten comme~ts, 

,·by',;:J~\~r~sJ~d ,,;persp~s< . Registration ·will ••. begin ':30 

l)iinliles prior .to··. the 

h:f.ddngs;:F I ndividua Is 

!TIC..rt·.~re~e~t:. c:i~~.l~:~!~t ·. m~/i~~~wlien ··called .'!PO 

in : order ,p( {egistrpn< . \ 

A·time .limit}m~y be:, • ta):lisheq ; tcif~··. eocl'(· he'. ' in~· ... ,;;·.,.o.s'sure thil'·f · 

···ail~li9h:;t(m~ ~is :'all~\y'e~ · . ·for;;· eye\)'"(;iljjeresl'!~t;,p~r . so~ .. to speak; ; There <Will , o~ •ho( operi . discu~si<>~ 

during the.. hearing~;,.· ~o 

:v/ever-:. _ CC)~missiqn __ : _ sloff 

members' wiii,,.be ·~ayall able to iriforinalli -discuss th~ proposaL. 30~·• minutes 

before the hearings.Ji¥ . 
Kathleen Hartnell While, Clwirnwn 

Lnry R. Soward. Commissioner 

Mal·l!n A. Hubert. Commissioner 

Glenn Shankle, Executive Director 

~- ,/ 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

Protecting Texas by Reducing and Preventing Pollution 

NOTICE OF PUBLIC HEARINGS BY THE TEXAS 

COMMISSION ON ENVIRONMENTAL QUALITY ON PROPOSED REVISIONS 

TO 30 TAC CHAPTER 115 AND TO THE STATE IMPLEMENTATION PLAN 

The Texas Commission on Environmental Quality will conduct public hearings to receive testimony 

concerning revisions to §115.247 of 30 TAC Chapter 115, Control of Air Pollution from Volatile 

Organic Compounds, under the requirements of Texas Health and Safety Code, §382.017; Texas 

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

United States Environmental Protection Agency (EPA) regulations concerning state implementation 

plans (SIPs). 

The proposed amendment to § 115.247 would exempt facilities used exclusively for the initial fueling 

and/or re-fueling of vehicles equipped with onboard refueling vapor recover equipment from Stage II 

requirements in Chapter 115. 

The commission will hold public hearings on this proposal in Austin on February 27, 2007, at 2:00 

p.m. at the Texas Commission on Environmental Quality Complex located at 12100 Park 35 Circle in 

Building F, Room 2210; and in Arlington on February 28, 2007, at 2:00p.m. at the City of Arlington 

Council Chambers located at 101 West Abrams Street. The hearings will be structured for the receipt 

of oral or written comments by interested persons. Registration will begin 30 minutes prior to the 

hearings. Individuals may present oral statements when called upon in order of registration. A time 

limit. may be established at each hearing to assure that enough time is allowed for every interested 

person to speak. There will be no open discussion during the hearings; however, commission staff 

members will be available to informally discuss the proposal 30 minutes before the hearings. 

Persons who have special communication or other accommodation needs who are planning to attend the 

hearings should contact Jennifer Stifflemire, Air Quality Division, at (512) 239-0573. 

Comments may be submitted to Patricia Duron, MC 205, Office of Legal Services, Texas Commission 

on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. 

Electronic comments may be submitted at http://www.5.tceq.state.tx.us.ruleslecomments. All 

comments should reference Rule Project Number 2006-049-115-EN. The conm1ent period closes 

March 15, 2007. Copies of the proposed rule can be obtained from the c011m1ission' s Web site at 

http://www. tceq. state. tx. uslnav/ruleslpropose _adopt. html. For further information, please contact Koy 

Howard, Air Quality Division, at (512) 239-2306. 

Issued in Austin, Texas on ]anum)' 10, 2007 

r (!_ Bux 13D87 • Austin. Texas 7871 J-3087 • 512/23CJ-JOOO • Internet address: 1\'WW.lCelj.Sti.tle.tx.us 
LOCATION: 17124 I-10 East Channelview, Harris County, Texas;

TYPE OF FACILITY: convenience store with retail sales of gasoline; RULES VIOLATED: 30 TAC §115.242(3) and (3)(H), and

§115.245(2), and THSC, §382.085(b), by failing to maintain the Stage

II vapor recovery system in proper condition; 30 TAC §334.48(c), and

§334.50(d)(1)(B)(ii), and TWC, §26.3475(a), by failing to properly

record inventory volume measurements for regulated substance inputs,

withdrawals, and the amount remaining in the tank each operational

day, and failing to conduct proper reconciliation of detailed inventory

control records on a monthly basis; and 30 TAC §334.50(b)(1)(A) and

(b)(2)(A)(i), and TWC, §26.3475(a), by failing to equip the product

lines with an automatic line leak detector and monitor the USTs for

releases at a frequency of at least once every month; PENALTY:

$5,775; STAFF ATTORNEY: James Sallans, Litigation Division,

MC 175, (512) 239-2053; REGIONAL OFFICE: Houston Regional

Ofce, 5425 Polk Avenue, Suite H, Houston, Texas 77023-1486, (713)

767-3500.

(10) COMPANY: R. Master & Sons, Inc. dba Get & Go; DOCKET

NUMBER: 2004-1809-PST-E; TCEQ ID NUMBER: RN101733533;

LOCATION: 717 Half League Street, Port Lavaca, Calhoun County,

Texas; TYPE OF FACILITY: convenience store with retail sales of

gasoline; RULES VIOLATED: 30 TAC §37.815(a) and (b), by failing to demonstrate nancial assurance for taking corrective action and

for compensating third parties for bodily injury and property damage

caused by accidental releases arising from the operation of petroleum

USTs; PENALTY: $1,600; STAFF ATTORNEY: Rachael Gaines, Litigation Division, MC 175, (512) 239-0078; REGIONAL OFFICE: Corpus Christi Regional Ofce, 6300 Ocean Drive, Suite 1200, Corpus

Christi, Texas 78412-5503, (361) 825-3100.

TRD-200700128

Mary Risner

Director, Litigation Division

Texas Commission on Environmental Quality

Filed: January 18, 2007

Notice of Public Hearings on Proposed Revisions to 30 TAC

Chapter 114 and to the State Implementation Plan

The Texas Commission on Environmental Quality will conduct public hearings to receive testimony concerning revisions to §114.318 of

30 TAC Chapter 114, Control of Air Pollution from Motor Vehicles,

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

Texas Government Code, Chapter 2001, Subchapter B; and 40 Code

of Federal Regulations §51.102, of the United States Environmental

Protection Agency (EPA) regulations concerning state implementation

plans (SIPs).

The proposed amendment to §114.318 would extend the December 31,

2006, expiration date of all alternative emission reduction plans approved by the executive director prior to December 16, 2005, by one

year to December 31, 2007, and would apply the new expiration date

to all alternative emission reduction plans approved by the executive

director prior to May 17, 2006.

The commission will hold public hearings on this proposal at the following times and locations: February 15, 2007, 2:00 p.m., Arlington

City Hall Council Chambers, 101 W. Abrams Street, Arlington; February 20, 2007, 2:30 p.m., Council Chambers, City Hall Annex, First

Floor, 900 Bagby Street, Houston; and February 22, 2007, 10:00 a.m.,

Texas Commission on Environmental Quality, Building E, Room 201S,

12100 Park 35 Circle, Austin. The hearings will be structured for the

receipt of oral or written comments by interested persons. Registration

will begin 30 minutes prior to the hearings. Individuals may present

oral statements when called upon in order of registration. A time limit

may be established at each hearing to assure that enough time is allowed

for every interested person to speak. There will be no open discussion

during the hearings; however, commission staff members will be available to informally discuss the proposal 30 minutes before the hearings.

Persons who have special communication or other accommodation

needs who are planning to attend the hearings should contact Jennifer

Stifemire, Air Quality Division, at (512) 239-0573.

Comments may be submitted to Patricia Durón, MC 205, Of-

ce of Legal Services, Texas Commission on Environmental

Quality, P.O. Box 13087, Austin, Texas 78711-3087, or faxed

to (512) 239-4808. Electronic comments may be submitted at

http://www.5.tceq.state.tx.us.rules/ecomments. All comments

should reference Rule Project Number 2007-007-114-EN. The

comment period closes March 2, 2007. Copies of the proposed rule can be obtained from the commission’s Web site at

http://www.tceq.state.tx.us/nav/rules/propose_adopt.html. For further

information, please contact Morris Brown, Air Quality Division, at

(512) 239-1438.

TRD-200700102

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Filed: January 11, 2007

Notice of Public Hearings on Proposed Revisions to 30 TAC

Chapter 115 and to the State Implementation Plan

The Texas Commission on Environmental Quality will conduct public hearings to receive testimony concerning revisions to §115.247 of

30 TAC Chapter 115, Control of Air Pollution from Volatile Organic

Compounds, under the requirements of Texas Health and Safety Code,

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

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

The proposed amendment to §115.247 would exempt facilities used exclusively for the initial fueling and/or re-fueling of vehicles equipped

with onboard refueling vapor recover equipment from Stage II requirements in Chapter 115.

The commission will hold public hearings on this proposal in Austin on

February 27, 2007, at 2:00 p.m. at the Texas Commission on Environmental Quality Complex located at 12100 Park 35 Circle in Building

F, Room 2210; and in Arlington on February 28, 2007, at 2:00 p.m. at

the City of Arlington Council Chambers located at 101 West Abrams

Street. The hearings will be structured for the receipt of oral or written

comments by interested persons. Registration will begin 30 minutes

prior to the hearings. Individuals may present oral statements when

called upon in order of registration. A time limit may be established at

each hearing to assure that enough time is allowed for every interested

person to speak. There will be no open discussion during the hearings;

however, commission staff members will be available to informally

discuss the proposal 30 minutes before the hearings.

Persons who have special communication or other accommodation

needs who are planning to attend the hearings should contact Jennifer

Stifemire, Air Quality Division, at (512) 239-0573.

Comments may be submitted to Patricia Durón, MC 205, Of-

ce of Legal Services, Texas Commission on Environmental

Quality, P.O. Box 13087, Austin, Texas 78711-3087, or faxed

to (512) 239-4808. Electronic comments may be submitted at

IN ADDITION January 26, 2007 32 TexReg 417
http://www.5.tceq.state.tx.us.rules/ecomments. All comments

should reference Rule Project Number 2006-049-115-EN. The

comment period closes March 15, 2007. Copies of the proposed rule can be obtained from the commission’s Web site at

http://www.tceq.state.tx.us/nav/rules/propose_adopt.html. For further

information, please contact Koy Howard, Air Quality Division, at

(512) 239-2306.

TRD-200700104

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Filed: January 11, 2007

Texas Health and Human Services Commission

Notice of Adopted Reimbursement Rates for Large,

State-operated Intermediate Care Facilities for Persons with

Mental Retardation (ICF/MR)

Adopted Rates. As the single state agency for the state Medicaid program, the Texas Health and Human Services Commission (HHSC) has

adopted the following interim per diem reimbursement rates for large,

state-operated Intermediate Care Facilities for Persons with Mental Retardation (ICF/MR), including state schools operated by the Texas Department of Aging and Disability Services (DADS): $345.87 for Medicaid-only clients; and $338.59 for clients who are dually eligible for

assistance through the Medicaid and Medicare programs. The adopted

rates are effective September 1, 2006.

HHSC conducted a hearing on November 6, 2006, to receive public

comment on the proposed reimbursement rates. The hearing was held

in accordance with Title 1 of the Texas Administrative Code (TAC)

§355.105(g), which requires that public hearings be held on proposed

reimbursement rates before such rates are approved by HHSC. Notice

of the hearing was published in the October 20, 2006, issue of the Texas

Register (31 TexReg 8764).

Methodology and justication. The adopted rates were determined in

accordance with the rate setting methodology codied at 1 TAC Chapter 355, Subchapter D, §355.456(f), relating to Reimbursement Rates.

TRD-200700122

Wendy Pellow

Assistant General Counsel

Texas Health and Human Services Commission

Filed: January 18, 2007

Notice of Hearing on Proposed Provider Reimbursement Rate

Hearing. The Texas Health and Human Services Commission (HHSC)

will hold a public hearing on February 14, 2007, at 2:00 p.m. to receive comments from interested persons on a proposed interim Medicaid reimbursement rate applicable to small, state-operated Intermediate

Care Facilities for Persons with Mental Retardation (ICF/MR), including bond homes, group homes and community centers operated by the

Texas Department of Aging and Disability Services (DADS). The public hearing will be held in the Lone Star Conference Room at HHSC’s

Braker Center ofce located at 11209 Metric Boulevard, Building H,

Austin, Texas. The public hearing will be held in compliance with Title 1 of the Texas Administrative Code §355.105(g), which requires

that public hearings be held on proposed reimbursement rates before

such rates are approved by HHSC. Persons with disabilities who wish

to attend the public hearing and who require auxiliary aids or services

should contact Irene Cantu by telephone at (512) 491-1358 by February 7, 2007, so that accommodations can be arranged.

Written and oral comments. Written comments about the proposed interim reimbursement rate may be submitted to HHSC until 5:00 p.m.

on February 14, 2007, in lieu of or in addition to oral comments presented at the public hearing. Written comments may be hand-delivered or sent by U.S. mail, special delivery mail or overnight express to

the attention of Irene Cantu, HHSC Rate Analysis, Mail Code H-400,

Braker Center, Building H, 11209 Metric Boulevard, Austin, Texas,

78758-4021. Alternatively, written comments may be sent via facsimile to Ms. Cantu’s attention at (512) 491-1998.

Brieng package. Copies of the brieng package about the proposed

interim reimbursement rate will be available at the hearing. Persons

interested in receiving a brieng package before the hearing may contact Irene Cantu by telephone at (512) 491-1358, by facsimile at (512)

491-1998, by email at irene.cantu@hhsc.state.tx.us, or by mailing a

request to HHSC Rate Analysis, P.O. Box 85200, Mail Code H-400,

Austin, Texas 78708-5200.

Proposal. As the single state agency for the state Medicaid program,

HHSC proposes the following interim reimbursement rate for small,

state-operated ICF/MR:

Small, State-Operated ICF/MR - Medicaid clients Proposed interim

daily rate - $188.30

HHSC is proposing this interim rate so that adequate funds will be

available to serve clients in these facilities. The proposed interim rate

accounts for the actual cost to operate these facilities. The proposed

interim rate will be effective September 1, 2006, if approved.

Methodology and justication. The proposed rate was determined in

accordance with the rate setting methodology codied at 1 Texas Administrative Code Chapter 355, Subchapter D, §355.456(f), relating to

Reimbursement Rates.

TRD-200700121

Wendy Pellow

Assistant General Counsel

Texas Health and Human Services Commission

Filed: January 18, 2007

Notice of Hearing on Proposed Provider Reimbursement Rates

Hearing. The Texas Health and Human Services Commission (HHSC)

will hold a public hearing on February 12, 2007, at 9:00 a.m. to

receive comments from interested persons on proposed Medicaid

reimbursement rates applicable to providers of Home and Community-based Services (HCS) and to the Texas Home Living (TxHmL)

Program. The public hearing will be held in the Lone Star Conference Room at HHSC’s Braker Center ofce located at 11209 Metric

Boulevard, Building H, Austin, Texas. The public hearing will be held

in compliance with Title 1 of the Texas Administrative Code (TAC)

§355.105(g), which requires that public hearings be held on proposed

reimbursement rates before HHSC approves such rates. Persons with

disabilities who wish to attend the public hearing and who require auxiliary aids or services should contact Ms. Irene Cantu by telephone at

(512) 491-1358 by February 5, 2007, so that appropriate arrangements

can be made.

Written and oral comments. Written comments about the proposed reimbursement rates may be submitted until 5:00 p.m. on February 12,

2007, in lieu of or in addition to oral comments presented at the public

hearing. Written comments may be hand-delivered or sent by U.S. mail

or overnight express to the attention of Irene Cantu, HHSC Rate Analy32 TexReg 418 January 26, 2007 Texas Register
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; §382.017, concerning Rules, which

authorizes the commission to adopt rules consistent with the

policy and purposes of the Texas Clean Air Act; §382.019, concerning Methods Used to Control and Reduce Emissions from

Land Vehicles, which authorizes the commission to adopt rules

to control and reduce emissions from engines used to propel

land vehicles; and §382.202, concerning Vehicle Emissions

Inspection and Maintenance Program, which authorizes the

commission to establish vehicle fuel content standards after

January 1, 2004, as long as distribution of LED as described in

the SIP is not required prior to February 1, 2005.

The proposed amendment implements Texas Water Code,

§5.103 and §5.105, and Texas Health and Safety Code,

§§382.002, 382.011, 382.012, 382.017, 382.019, and 382.202.

§114.318. Alternative Emission Reduction Plan.

(a) - (b) (No change.)

(c) All alternative emission reduction plans approved by the

executive director prior to May 17, 2006 [December 16, 2005], will

expire on December 31, 2007. [December 31, 2006, with the following exception. The executive director may allow a producer operating

under an alternative emission reduction plan approved by the executive

director prior to December 16, 2005, to continue to operate under that

plan for a limited time beyond December 31, 2006, if all the following

conditions are demonstrated to the satisfaction of the executive director:]

[(1) the producer’s alternative emission reduction plan relied on the use of an alternative diesel formulation that has not been

approved by the executive director under §114.315(c) of this title (relating to Approved Test Methods);]

[(2) the producer has submitted an application to the Air

Pollution Control Technologies (APCT) Center, a center under the

EPA’s Environmental Technology Verication (ETV) Program, and

the EPA’s Ofce of Transportation and Air Quality’s Voluntary Diesel

Retrot Program to pursue verication of this alternative diesel fuel

formulation to demonstrate that it will achieve at least a 5.78% reduction in NOx emissions when compared against a base diesel fuel with

fuel properties within the ranges as described for nationwide average

fuel in EPA’s Verication Protocol for Determination of Emissions

Reductions Obtained by Use of Alternative or Reformulated Liquid

Fuels, Fuel Additives, Fuel Emulsions, and Lubricants for Highway

and Nonroad Use Diesel Engines and Light Duty Gasoline Engines

and Vehicles (Revision No. 03, September 2003);]

[(3) the producer has a contract with the APCT Center to

perform the verication testing that is signed by both parties and paid

in full by September 1, 2006; and]

[(4) the emissions testing as specied under an ETV test

plan approved by both the APCT Center and EPA is completed before

December 1, 2006.]

(d) - (f) (No change.)

This agency hereby certies that the proposal has been reviewed

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

Filed with the Ofce of the Secretary of State on January 11,

2007.

TRD-200700103

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: February 25, 2007

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

CHAPTER 115. CONTROL OF AIR

POLLUTION FROM VOLATILE ORGANIC

COMPOUNDS

SUBCHAPTER C. VOLATILE ORGANIC

COMPOUND TRANSFER OPERATIONS

DIVISION 4. CONTROL OF VEHICLE

REFUELING EMISSIONS (STAGE II) AT

MOTOR VEHICLE FUEL DISPENSING

FACILITIES

30 TAC §115.247

The Texas Commission on Environmental Quality (commission)

proposes an amendment to §115.247.

The proposed amendment will be submitted to the United States

Environmental Protection Agency (EPA) as a revision to the state

implementation plan.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS

FOR THE PROPOSED RULE

For facilities used exclusively for the initial fueling and re-fueling of vehicles equipped with onboard refueling vapor recovery

(ORVR) equipment, Stage II is an unnecessary expense because refueling emissions are captured via vehicle ORVR instead of the Stage II dispenser. The EPA estimates it costs about

$40,000 to install a vacuum-assist system and $4,100 per year

to maintain it. ORVR systems capture vapors otherwise vented

to the atmosphere. ORVR systems are passive systems that

force gasoline vapors displaced from a vehicle’s fuel tank during

refueling to be directed to a carbon-canister holding system and

ultimately to the engine where they are consumed. EPA phased

in ORVR systems for automobiles starting with model year 1998.

All automobiles manufactured after 2000 must be equipped with

ORVR. Phase-in of ORVR for light-duty trucks began in model

year 2001, and by model year 2003, all new light-duty trucks

were required to have ORVR systems.

SECTION DISCUSSION

The proposed amendment to §115.247, Exemptions, would add

paragraph (3) for individual dispensers used exclusively for the

initial fueling and/or re-fueling of vehicles equipped with ORVR

equipment.

ANTI-BACKSLIDING DEMONSTRATION

The Stage II program was initiated as a volatile organic compound (VOC) control strategy for certain ozone nonattainment

areas. Stage II vapor recovery equipment must be certied

by EPA to achieve 95% control efciency for VOC emissions.

Furthermore, EPA states in their Stage II Vapor Recovery

Systems-Options Paper dated February 7, 2006, that ORVR

controls achieve 95% control efciency. Therefore, exempting

facilities that refuel only ORVR-equipped vehicles from the

Stage II program will not result in increased VOC emissions.

32 TexReg 282 January 26, 2007 Texas Register
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT

Jeff Horvath, Analyst, Strategic Planning and Assessment Section, has determined that, for the rst ve-year period the proposed rule is in effect, no scal implications are anticipated for

the agency or other units of state or local government as a result

of the administration or enforcement of the proposed rule.

The proposed rule would provide an exemption from Stage II vapor recovery requirements for facilities used exclusively for the

initial fueling and/or re-fueling of vehicles equipped with ORVR

equipment. The amendment is needed because Stage II controls are an unnecessary expense for facilities used exclusively

for the fueling of vehicles equipped with ORVR equipment. Refueling emissions are captured via vehicle ORVR instead of the

facility’s dispenser. The proposed amendment is expected to

have no effect on the amount of emissions released into the atmosphere at any facility affected by the proposed amendment.

Further, it is estimated that the proposed rule will only affect

one facility, a General Motors manufacturing plant in Arlington.

The agency inspects automobile manufacturing plants for compliance with agency rules once every three years at a maximum

and every ve years at a minimum. Any cost savings for the

agency due to any reduced inspection time is not considered

signicant.

PUBLIC BENEFITS AND COSTS

Mr. Horvath also determined that for each year of the rst ve

years the proposed rule is in effect, the public benet anticipated

from the changes seen in the proposed rule will be more efcient

control of vehicle refueling emissions with continued protection

of public health and the environment.

Some minor scal implications are anticipated for the General

Motors manufacturing plant due to the implementation of the proposed rule. There may be other facilities affected by the proposed rule, such as large car rental businesses, but at this time

agency staff are unable to identify other businesses or individuals that could be affected by the implementation of the proposed

rule.

It is estimated that GM could save approximately $45,000 each

year if they are exempt from having to use the current Stage II

vapor recovery equipment which is no longer needed. The estimated cost savings include maintenance, parts, service, and

energy costs. It is anticipated that if there are any other facilities

affected by the proposed rule, similar cost savings would be realized.

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT

No adverse scal implications are anticipated for small or microbusinesses as a result of the proposed rule. No small or microbusinesses are expected to be affected by the proposed rule.

LOCAL EMPLOYMENT IMPACT STATEMENT

The commission has reviewed this proposed rulemaking and determined that a local employment impact statement is not required because the proposed rule does not adversely affect a

local economy in a material way for the rst ve years that the

proposed rule is in effect.

DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the proposed rulemaking in light of the

regulatory analysis requirements of Texas Government Code,

§2001.0225, and determined the rulemaking is not subject to

§2001.0225 because it does not meet the denition of a "major environmental rule" as dened in the act. A "major environmental rule" is a rule which is specically 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 proposed

rulemaking action is to provide an exemption from Stage II vapor recovery requirements for facilities used exclusively for the

initial fueling and/or re-fueling of vehicles equipped with ORVR

equipment because use of both provides no net environmental

benet. The commission invites public comment on the draft

regulatory impact analysis determination. Also, the amendment

is proposed to continue to meet the requirements of 42 United

States Code, §7511a(b)(3) and Texas Health and Safety Code

(THSC), §382.019 and §382.208, but in a less nancially burdensome manner on owners and operators of gasoline dispensing

facilities.

TAKINGS IMPACT ASSESSMENT

The commission evaluated the proposed rule and performed a

preliminary assessment of whether Texas Government Code,

Chapter 2007 is applicable. The commission’s preliminary

assessment indicates Texas Government Code, Chapter 2007

does not apply to the proposed amendment because this

action discontinues Stage II vapor recovery requirements for

specic regulated activities. Promulgation and enforcement

of the proposed amendment would be neither a statutory or

constitutional taking of private real property. Specically, the

proposed amendment does 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.

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 adopted revisions

will maintain the same level of emissions control as the existing

rules. The CMP policy applicable to this rulemaking action is the

policy that commission rules comply with federal regulations in

40 Code of Federal Regulations (CFR), to protect and enhance

air quality in the coastal areas (31 TAC §501.14(q)). This rulemaking action complies with 40 CFR Part 51, Requirements for

Preparation, Adoption, and Submittal of Implementation Plans.

Therefore, in compliance with 31 TAC §505.22(e), the commisPROPOSED RULES January 26, 2007 32 TexReg 283
sion afrms that this rulemaking action is consistent with CPM

goals and policies.

EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING

PERMITS PROGRAM

Chapter 115 contains applicable requirements under 30 TAC

Chapter 122, Federal Operating Permits; therefore, owners

or operators subject to the Federal Operating Permit Program

must, consistent with the revision process in Chapter 122,

revise their operating permits to include the revised Chapter

115 requirements for each emission unit at their sites affected

by the revisions to Chapter 115.

ANNOUNCEMENT OF HEARINGS

Public hearings will be held in Austin on February 27, 2007, at

2:00 p.m. at the Texas Commission on Environmental Quality

Complex located at 12100 Park 35 Circle in Building F, Room

2210, and in Arlington on February 28, 2007, at 2:00 p.m. at the

City of Arlington Council Chambers located at 101 West Abrams

Street. The hearings 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. A time limit may be established at each hearing to assure

that enough time is allowed for every interested person to speak.

There will be no open discussion during the hearings; however,

an agency staff member will be available to discuss the proposal

30 minutes prior to the hearings.

Persons who have special communication or other accommodation needs who are planning to attend the hearings should contact Jennifer Stifemire, Air Quality Division, at (512) 239-0573.

Requests should be made as far in advance as possible.

SUBMITTAL OF COMMENTS

Written comments may be submitted to Patricia Durón, MC 205,

Ofce of Legal Services, Texas Commission on Environmental

Quality, P.O. Box 13087, Austin, Texas 78711-3087, or faxed

to (512) 239-4808. Electronic comments may be submitted at

http://www5.tceq.state.tx.us/rules/ecomments/. All comments

should reference Rule Project Number 2006-049-115-EN. The

comment period closes March 15, 2007. Copies of the proposed

rulemaking can be obtained from the commission’s Web site at

http://www.tceq.state.tx.us/nav/rules/propose_adopt.html. For

further information, please contact Koy Howard, Air Quality

Planning, at (512) 239-2306.

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. 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 §382.208, 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.

The proposed amendment implements THSC, §§382.002,

382.011, 382.012, and 382.208.

§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; and[.]

(3) any motor vehicle fuel dispensing facility used exclusively for the fueling and/or refueling of vehicles equipped with onboard refueling vapory recovery equipment.

This agency hereby certies that the proposal has been reviewed

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

Filed with the Ofce of the Secretary of State on January 11,

2007.

TRD-200700105

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: February 25, 2007

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

TITLE 34. PUBLIC FINANCE

PART 5. TEXAS COUNTY AND

DISTRICT RETIREMENT SYSTEM

CHAPTER 103. CALCULATIONS OR TYPES

OF BENEFITS

34 TAC §103.3

The Texas County and District Retirement System proposes an

amendment to §103.3, concerning the beneciary designations

and payment elections requiring spousal consent. The proposed

amendment deletes the requirement that a member not eligible for retirement certify to the member’s current marital status on any document led with the system on which the member makes a beneciary designation or benet payment election and deletes the requirement that a member not eligible for

retirement obtain the consent of the member’s spouse on any

document with the system on which the member designates a

person other than the member’s spouse as sole primary bene-

ciary. The spousal consent requirements are unchanged with

32 TexReg 284 January 26, 2007 Texas Register
WRITTEN AND 

ORAL TESTIMONY
Reference Number 

W-1 

W-2 

W-3 

W-4 

INDEX OF WRITTEN TESTIMONY 

Submitted by 

Kelly Hart & Hallman, LLP, on behalf of General Motors 

Corporation 

Harris County Public Health & Environmental Services 

Sierra Club, Houston Regional Group 

United States Environmental Protection Agency 
Telephone: (512) 495-6400 

Direct Fax: (512) 495-6617 

Writer's Direct Dial: (512) 495-6426 

KELLY HART & HALLMAN LLP 

ATTORNEYS AT LAW 

301 CONGRESS AVENUE, SUITE 2000 

AUSTIN, TEXAS 78701 

Email Address: bob.stewart@khh.com 

¥arch 13,2007 

Ms. Patricia Duron 

Office ofLegal Services, MC-205 

Texas Commission on Environmental Quality 

P.O. Box 13087 

Austin, TX 78711-3087 

W-1 

201 Main Street, Suite 2500 

Fort Worth, Texas 76102 

Telephone: (817) 332-2500 

Telecopy: (817) 878-9280 

RECEIVED 

NAR 1 3. 2007 

TEXAS REGISTER TEAM 

Re: General Motors Corporation ("GM") Comments on Rulemaking Proposal to 

Exempt ORVR Facilities from Stage II Rules; 

Rule Project No. 2006-049-115-EN 

Dear Ms. Duron: 

GM submits these comments supporting TCEQ's proposed rules to exempt facilities 

which exclusively fuel vehicles with onboard refueling vapor recovery (ORVR) equipment from 

the Stage II vapor recovery system rules. GM appreciates the work ofTCEQ staff in responding 

positively to GM's petition for rulemaking filed with TCEQ on October 5, 2006 to create a Stage 

II rule exemption for automobile assembly plants fueling vehicles equipped with ORVR 

equipment. GM believes that ifTCEQ adopts the above referenced general rulemaking as 

proposed, the purpose ofGM's petition for rulemaking, which TCEQ granted on November 15, 

2006, will be satisfied and no further TCEQ rulemaking will be needed in response to GM's 

petition for rulemaking. 

As discussed in GM's petition foi rulemaking, the proposed rule exempting ORVR fuel 

dispensing facilities from the Stage II rules: (1) is needed to avoid unnecessary and duplicative 

costs of compliance with Stage II rules; (2) comports with EPA actions in other states and 

Congressional intent; (3) is narrowly drafted to apply only to those facilities which need the 

protection of the Stage II rule exemption; and ( 4) would result in reductions of air pollutant 

emissions at the GM Arlington plant. 

1. The proposed rule is needed to avoid unnecessary and duplicative Stage II rule 

compliance costs. 

831931-1 
Ms. Patricia Duron 

March 13,2007 

Page2 

I 

Because Federal law requires ORVR on all newly manufactured automobiles and light 

duty trucks, none of such vehicles will need Stage II" rule requirements to ensure that refueling 

vapors are captured. Section 202(a)(6) of the Federal Clean Air Act', requires that emissions of 

VOCs and hazardous air pollutants from fueling of new automobiles and light duty trucks be 

captured and destroyed by OR VR canisters. Pursuant to this legal mandate, EPA implemented 

ORVR on a phased-in schedule beginning in 1998 and now requires ORVR for all model year 

2006 automobiles and light-duty trucks.2 

An ORVR system collects vapors that accumulate in the fuel tank as well as fuel vapors 

generated during fueling and releases them into the vehicle's engine for combustion. Current 

ORVR technology generally consists of activated carbon canisters which absorb the 

hydrocarbons contained in the vapors before they can be released to the atmosphere. A Stage II 

vapor recovery system (VRS) is required to achieve 95% vapor control efficiency and EPA 

requires ORVR to achieve the same 95% vapor control efficiency as Stage II controls. In fact, 

the ORVR systems required for newly manufactured vehicles have the capacity to effectively 

capture over 99% of the vaporsresulting from the initial filling of vehicles coming offthe 

assembly line. 

In the contextofORVR-equipped vehicles at GM's Arlington auto assembly plant, the 

Stage II controls are completely redundant and duplicative of the function being performed by 

ORVR. Indeed, the redundant Stage II controls can be incompatible when used to fuel vehicles 

with ORVR. 3 Accordingly, the costs of Stage II VRS compliance incurred by GM at its 

Arlington plant are wholly unnecessary since fueling of ORVR-equipped vehicles do not 

generate any VOC emissions for treatment in the Stage II VRS. GM's annual average costs of 

operating and maintaining its Stage II controls is estimated to be $54,515. This consists of the 

following cost elements: 

• Annual parts and service calls: $7,600 

• Annual maintenance costs (520 hours/yr@ $50/hr.): $26,000 

• Annual cost of natural gas (1.2 million cu. ft./yr): $11,540 

• Annual cost of Stage II rule monitoring, recordkeeping, reporting and compliance (250 

man-hours@ $37.50 per man-hour): $9,375. 

GM is already incurring substantial costs of installing ORVR to minimize VOC 

emissions from fueling activities. It is clearly unjust for GM:to be required to also pay for the 

costs of Stage II VRS and regulatory compliance when such emissions control activities result in 

no additional emissions reductions over that already produced through use of ORVR. 

1 42 U.S.C. § 7521(a)(6). 2 59 Fed. Reg. 16262 (4-6-1994). 100% of all newly-manufactured automobiles were required to have ORVR 

starting with the 2000 year models. 100% of light duty trucks(< 6,000 lbs.) were required to have ORVR starting 

with the 2003 year models. 100% of heavier light duty trucks(> 6,000 lbs.) were required to have ORVR starting 

with the 2006 year models. ,, 3 See Stage II Vapor Recovery Systems Issues Paper, U.S. EPA Office of Air Quality Planning and Standards 

Emissions Monitqring and Analysis Division, Emissions Factors and Policy Applications Group (D243-02), August 

12, 2004. See also, 30 Tex. Reg. 2069 (AprilS, 2005) [TCEQ rulemaki.ng preamble for the Chapter 115 Stage II 

rules requiring compatibility ofORVR with Stage II controls]. 

83!931·1 
Ms. Patricia Duron 

March 13, 2007 

Page 3 

In addition it should be recognized that the car-buying public pays for the unnecessary 

Stage II controls to a certain extent as some of these manufacturer costs are passed on to the 

consumer in the form of higher car prices. Since the car-buying public is already paying for 

ORVR, it makes no sense for the car-buying public to bear even higher car prices for Stage II 

controls which do not produce any additional environmental benefits. 

2. The proposed rule comports with Congressional intent and EPA actions in other states. 

Congress and EPA have recognized that ORVR-equipped vehicles should be exempt 

from Stage II VRS requirements. After establishing the requirement for ORVR on.newly 

manufactured vehicles, Section 202(a)(6) of the Federal Clean Air Act then waives Stage II 

requirements in moderate ozone non-attainment areas once EPA's rules implementing ORVR 

rules have been promulgated. That section further authorizes EPA to waive the Stage II 

requirements for serious, severe, and extreme ozone nonattainment areas when EPA detenniiles 

that ORVR is in "widespread use."4 These Stage II waiver provisions for ORVR in the Federal 

Clean Air Act constitute an express recognition by Congress that there is no need for Stage II 

controls on vehicles that have ORVR. 

Similarly, EPA recently has expressly recognized that Stage II controls are not needed for 

ORVR-equipped vehicles. In a memo dated December 12, 2006, the D!rector of the EPA Office· 

of Air Quality Planning and Standards expressly recognized that new automobile assembly 

plants will qualify for a finding of "widespread use" and thus be entitled to a waiver of Stage II 

rule requirements. Indeed, in that memo, EPA set a "widespread use" standard of only 95% 

whereas the proposed TCEQ rule would apply only to facilities used exclusively fo~ the initial 

fueling or refueling of vehicles equipped with ORVR equipment. Therefore the proposed rule 

should undoubtedly be approved by EPA when submitted by the State to EPA as part of a SIP 

revision. 

EPA has already approved similar Stage· II rule exemptions in other states. For example, 

the State of Georgia revised its Stage II rules to exempt fueling stations used solely for ORVR 

vehicles. U.S. EPA approved the Georgia State Implementation Plan ("SIP") revision. 

incorporating the following Stage II exemption: 

Rule 391-3-1-.02(2)(zz)- "Gasoline Dispensing Facilities- Stage II" is being revised 

to provide an exemption for Stage ll requirements for all dispensers used 

exclusively for the fueling or refueling of vehicles equipped with onboard vapor 

recovery (ORVR) equipment, as ORVR fully displaces the need for Stage IT vapor 

recovery.~ 

EPA approved this Georgia Stage II exemption in a direct, fmal rulemaking with no prior 

proposal because "the Agency views this as a noncontroversial submittal and anticipates no 

4 EPA is currently evaluating comments solicited from the public on criteria to be used to determine when OR VR is 

in widespread use. 5 67 Fed. Reg. 45909, 45910 (July 11, 2002). 

831931-1 
... ' Ms. Patricia Duron 

March 13, 2007 

Page4 

adverse comments. "6 GM likewise urges TCEQ to request EPA to approve the TCEQ exemption 

in a direct, fmal rulemaking. This will allow the exemption to be more promptly utilized in 

GM's Title V permit. 

Moreover, in February of 2006 EPA issued a draft "Stage II Vapor Recovery SystemsOptions Paper"' in which EPA supported the Alliance of Automobile Manufacturers' (AAM) , 

request that automobile manufacturing facilities be exempt from the Stage II requirements by 

stating: "although we [EPA] cannot provide a direct waiver from Stage II VRS requirements to 

automobile manufacturers, we have discussed providing a memorandum to States and Regions 

that would support the granting of a waiver by a State."s It was after reviewing the data 

presented by AAM, that EPA concluded that it should release its memorandum ofDecember 12, 

2006 indicating its acceptance of waivers for automobile manufacturers and rental car facilities.• 

The explicit recognition by federal law and EPA that Stage II requirements are 

duplicative of ORVR and therefore may be waived for vehicles equipped with ORVR shows that 

there is no legal or policy basis for continuing to impose Stage II controls on newly 

manufactured ORVR-equipped vehicles. Furthermore, in its memorandum of December 12, 

2006, EPA has expressly stated that it will approve any necessary Texas SIP amendment to 

incorporate the proposed rule change. 

3. The proposed rule is narrowly drafted to apply only to those facilities which need the 

protection of the Stage IT rule exemption. 

The proposed rule would only apply to motor vehicle fuel dispensing facilities used 

exclusively for the fueling of vehicles equipped with ORVR equipment. Thus, the scope of the 

proposed Stage IT exemption would be narrowly limited only to automobile assembly plants, 

rental car facilities and other facilities which dispense fuel exclusively for ORVR-equipped 

vehicles. At the present time, there are only two auto assembly plants that meet that criterion 

(i.e., the GM Arlington plant and the Toyota San Antonio plant). For rental car companies or 

other fleet operators which cannot show that 1 00% oftheir fleet vehicles are equipped with 

ORVR, the Stage II rule exemption will not apply. However, it appears that if the rule were 

revised to set 95% as the required minimum percentage of ORVR-equipped vehicles, the rule 

would still pass muster with EPA as stated in the December 12, 2006 EPA memorandum. 

Therefore, the proposed rule change is even more narrowly drawn than currently required by 

EPA for approval of a SIP revision incorporating a Stage II rule exemption. \.J 

4. The proposed rule would result in reductions of air pollutant emissions at the GM 

Arlington plant. 

6 67 Fed. Reg. 45912 (July 11, 2002). 7 U.S. EPA Office of Air Quality Planning and Standards Emissions Monitoring and Analysis Division, Emissions 

Factors and Policy Applications Group (C339-02)(February 7, 2006). 

• EPA Stage II VRS Options Paper (Feb. 2006), page 21. 

• EPA Stage II VRS Options Paper (Feb. 2006), page 105. 

831931-1 
Ms. Patricia Duron 

March 13, 2007 

Page 5 

Operation of Stage II controls at the GM Arlington plant actually results in the emission 

of more air contaminants than ifthe Stage II equipment were not utilized. The GM Arlington 

assembly plant utilizes a CARE-certified Stage II VRS that is powered by natural gas and which 

itself emits NOx, CO, VOCs, PM, and S02. If the proposed rule change were adopted, the GM 

Arlington plant could cease utilizing its Stage II controls and thereby realize reduced emissions 

of these air pollutants. Although the amount of pollutant reductions from eliminating the Stage 

II VRS at the GM Arlington plant under the proposed rule are smalP•, any reduction of these 

pollutants is to be encouraged, especially in an ozone non-attainment area such as Tarrant 

County where the GM Arlington plant is located. 

In conclusion, GM fully supports the proposed TCEQ rule change and appreciates this 

opportunity to submit these comments. We urge TCEQ to (1) expeditiously adopt the proposed 

rule change, and (2) request that EPA approve the rule change to the Texas SIP as a direct fmal 

rule making. GM looks forward to continue working with TCEQ staff toward completion of 

TCEQ's rulemaking efforts to avoid the duplicative and burdensome impacts of the Stage II rules 

on vehicles equipped with ORVR. Please let me know if you have any questions about this 

matter or need additional information. 

Very truly yours, · . 

~~ 

Robert T. Stewart 

Attorney for General Motors Corporation 

cc: Koy Howard, TCEQ Air Quality Planning and Implementation Div. 

Frank Espino, TCEQ Regional Director, Region 4 

Patrick J. McCarroll, Esq. 

Stephen Dickman, Esq. 

10 The following are the emissions that are currently generated by the Arlington plant's CARE-certified Stage II catalytic oxidizer 

and that will be eliminated if the proposed rule change is ad,opted: 

NOx- 0.060 tons/yr. and 0.014lbs.lhr. 

CO- 0.050 tons/yr. and 0.012 lbs./hr. 

VOC - 0.005 tons/yr. and 0.002 lbs.!hr. 

PM- 0.005 tons/yr. and O.OOllbs./hr. 

802 - 0.0004 tons/yr. and O.OOOllbs./hr. 

831931-1 
Henninia Palacio, M.D .. , M.P.H. 

Ex:cculivc Director 

22.23 West Loop South 

Houston, Texas 77027 

Telc: 1713)439-6000 

Fn..: (713)439-60RO 

Ms. Patricia Duron 

Office of Legal Services 

Harris County 

HCPHE.S 

Public Health & Environmental Services 

March 13,2007 

Texas Commission on Environmental Quality 

P. 0. Box 13087, MC-205 

Austin, TX 78711-3087 

W-2 

B. Z. (Bud) Karachiwolo, M.S., M.B.A. 

Division Director 

Environmcnlal Public Hcallh 

I07N. Munger 

Pasadena. TX 77506 

Tclc: (713} 740-8703 

Fax: (713)477-8963 

Re: Rule Project Number 2006-049-115-EN, Harris County Public Health & Environmental 

Services' Comments on Proposed Stage II Vapor Recovery Rule Revision 

Dear Ms. Duron, 

Thank you for the opportunity to submit comments regarding the Stage ll Vapor Recovery Rule 

Revisions. 

The proposed rule making will add an exemption to the Stage II Vapor Recovery Motor Vehicle 

Fuel Dispensing requirements. Specifically, any motor vehicle fuel dispensing facility used 

exclusively for the fueling and/or refueling of vehicles equipped with onboaid refueling vapory 

recovery (ORVR) equipment will be exempt from Stage II Vapor Recovery requirements. 

ORVR systems capture vapors otherwise vented to the atmosphere. ORVR systems are passive 

systems that force gasoline vapors displaced from a vehicle's fuel tank during refueling to be 

directed to a carbon-canister holding system and ultimately to the engine where they are 

consumed. Refueling emissions are captured via vehicle ORVR instead of the Stage II 

dispenser. Harris County Public Health and Environmental Services (HCPHES) supports the 

proposed rule revision. 

HCPHES does have concerns regarding the ability of a facility to demonstrate, and the record 

keeping necessary for inspectors to verify, that the dispensing facility is indeed used exclusively 

for the fueling and/or refueling of vehicles equipped with ORVR. HCPHES requests that the 

TCEQ develop guidance regarding the record keeping necessary for a dispensing facility to 

demonstrate that it is used exclusively for the fueling and/or refueling of vehicles equipped with 

ORVR. 

www.hcphes.org 
Rule Project Number 2006-049-115-EN 

Comments on Proposed Stage II Vapor Recovery Rule Revision 

March 13, 2007 

Page2 

HCPCES appreciates the opportunity to submit comments on the referenced rulemaking. If you 

have any questions or need additional information, please contact Paul Newman of our office at 

713/740-8724. 

Sincerely, 

~ 

~----6~ '"d.,t- .. ,-

B. Z. Karachiwala, Director 

Environmental Public Health Division 

xc: Herminia Palacio, M.D., M.P.H., Executive Director, Harris County PHES 

Elizabeth Love, M.P.H., Chief, Offic~ of Policy and Planning 

Clarissa Bauer, Harris County Attorney's Office 

Arturo Blanco, Chief, City of Houston Bureau of Air Quality Control 

Donna Phillips, Regional Director TCEQ Region 12 

www.hcphes.org 
SIERRA 

CLUB 

FOUNDED 1892 

Houston Regional Group 

P. 0. Box 3021 

Houston, Texas 77253-3021 

713-895-9309 

http:/ /texas.sierraclub.org/houston/ 

W-3 

February 14, 2007 

Ms. Patricia Duron 

Texas Commission on Environmental Quality 

Office of Legal Services 

MC205 

P.O. Box 13087 

Austin, Texas 78711-3087 

Dear Patricia, 

RECEIVED 

FEB 1 5 2007 

TEXAS REGISTER TEAM 

Enclosed are the comments of the Houston Regional Group of the Sierra Club 

(HSC) regarding the proposed amendment to Chapter 115.24 7, initial fueling and 

re-fueling with vehicles equipped with onboard refueling vapor recovery (ORVR) 

equipment at fuel pumps without Stage II equipment. 

The HSC believes this rule change is premature and we request that !CEQ 

withdraw this proposal. If TCEQ is going to assume that Stage II vapor recovery 

equipment is no longer needed then it needs a compliance and enforcement 

program that will ensure that cheating does not occur. 

For instance, TCEQ needs a program that will be able to verify that all vehicles 

that use a refueling station without Stage II equipment indeed have ORVR. This 

is a difficult task since it requires that the operator have in place a program that. 

defeats illegal refueliqg and that TCEQ have in place a program to detect 

cheating. TCEQ says nothing about how these rules will prevent cheating and . 

whether its compliance and enforcement program will be able to detect cheating. 

According to information that TCEQ includes with this ·proposal many vehicles 

are still on the road (pre-2000 automobiles and pre-2003 light;duty trucks} that do 

not have ORVR. TCEQ provides ·no information that documents· what 

compliance and enforcement resources will be needed. ·!tis not General Motors, 

which· this rule is designed specifically to save money for ($45,000/year), that 

TCEQ should be most concerned about but .other companies that will insist they 

have fleets that just have ORVR. Unlike TCEQ suggests other companies may 

use the same exemption for their facility. TCEQ needs to be ready to address 

this issue. Apparently right now TCEQ is not prepared to do this because it 

insists this only applies to General Motors. · 

Where are the record-keeping requirements to document that only ORVR are 

fueled at a pump with no Stage II equipment? 

"When we try to pick out anything by itself, we fmd it hitched to everything else in the universe." john Af_uir 

Printed on 100% Kenaf tree free paper 

. :.·., 
Where are the required company procedures that would ensure that non-ORVR 

equipped vehicles are not refueled at pumps with no Stage II equipment? 

Where is the description of TCEQ compliance and enforcement programs (which 

require training to recognize functioning ORVRs) required to implement this 

proposed exemption? 

How will TCEQ verify that ORVRs on vehicles are actually working so that 

volatile organic compound emissions do not escape into the air when fueled at 

pumps with no Stage II equipment? 

TCEQ does not have a complete rule. The HSC requests that TCEQ withdraw 

this proposal and modify the rule. The rule should be changed to require 

companies that utilize this exemption so that they keep records and have and 

implement procedures that document that non-ORVR equipped vehicles are not 

refueled at fuel pumps that are not equipped with State II equipment. 

The HSC appreciates this opportunity to comment. Thank you. 

Chair, 

Houston 

Brandt 

Sincerely, 

Air 

Mannchen 

Regional 

Quality Committee 

Group 

~~ of the Sierra Club 

5431 Carew 

Houston, Texas 77096 

713-664-5962 

brandtshnfbt@juno.com 

2 
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

REGION 6 

Ms. Patricia Duron 

Office of Legal Services, MC205 

1445 ROSS AVENUE, SUITE 1200 

DALLAS, TX 75202-2733 

March 14,2007 

Texas Commission on Environmental Quality 

P.O. Box 13087 

Austin, TX 78711-3087 

Dear Ms. Duron: 

W-4 

Thank you for the opportunity to comment on the proposed revision to the State 

Implementation Plan (SIP) under the reference Rule Project Number 2006-049-115-EN. This 

proposed amendment would exempt from the Stage II requirements, any motor vehicle fuel 

dispensing facility used exclusively for the fueling and/or re-fueling of vehicles equipped with 

onboard refueling vapor recovery equipment (ORVR). The State additionally proposes to 

exempt any motor vehicle fuel dispensing facility used for the fueling and/or re-fueling of 

vehicles where more than 95 percent of the vehicles are equipped with ORVR. The Texas 

Commission on Environmental Quality (TCEQ) also proposes to exempt E85 motor vehicle fuel 

di,spensing facilities from Stage II. · 

EPA's December 12, 2006, guidance memorandum entitled, "Removal of Stage II Vapor 

Recovery in Situations Where Widespread Use of Onboard Refueling Vapor Recovery (ORVR) 

is Demonstrated" addresses three specific types of fleets: 

1. Initial fueling of new vehicles at automobile assembly plants, 

2. Refueling of rental cars at rental car facilities, and 

3. Refueling of flexible fuel vehicles at E85 dispensing pumps. 

The guidance also discusses the requirements for a State to demonstrate widespread use of 

ORVR within the specific type of fleet, and the requirement to meet Section 110(1) of the Federal 

Clean Air Act. We are supportive of the above three types of exemptions from Stage II 

assuming the rulemaking includes data to support a finding of widespread usage of ORVR within 

these three types of fleets and a section 110(1) analysis. 

Recycled/Recyclable • Printed wHh Vegetable 011 Based Inks on 100"/o RecyCled Paper (40% Postconsumer) 
2 

In general, we are supportive of this proposed rulemaking. Our specific comments are 

provided as an enclosure. Once again, we appreciate the opportunity to review and comment on 

this draft SIP revision. If you have questions regarding any of these comments, please feel free 

to contact me or Ellen Belk at (214) 665-2164. 

Enclosure 

Sincerely yours, 

JM: ~~ Thomas H. Diggs 

{'Chief 

Air Planning Section 
Enclosure 

1. The TCEQ proposed rule for exemption from the Stage II requirements reads, "any motor 

vehicle fuel dispensing facility used exclusively for the fueling and/or refueling of vehicles 

equipped with onboard refueling vapor recovery equipment.'' 

EPA requests that TCEQ clarify the type of fleets affected in this rule. The proposed 

language appears to include motor vehicle fuel dispensing facilities for any type of fleet 

throughout the State. Yet the preamble language specifically discusses vehicles at GM' s 

automobile assembly plant. lfTCEQ's intent is to exempt only automobile assembly plants, 

however, the language would not include "and/or refueling" and would be limited to the fueling 

of "new" vehicles equipped with ORVR at automobile assembly plants. 

We believe the proposed rule is intended to be consistent with EPA's guidance. The 

guidance addresses three specific fleets, two of which are exemption of initial fueling of new 

vehicles at automobile assembly plants and refueling of vehicles at car rental facilities. TCEQ 

must revise the rule's language to be clear it exempts only fueling of new vehicles at automobile 

assembly plants and refueling of rental cars at rental car facilities. Without clarification of the 

affected entities, the exemption is not approvable. 

2. TCEQ may wish to consider in its additional proposal to exempt "where 95% or more of 

the motor vehicle fleet being fueled onsite is equipped with OR VR" rather than "where more 

than 95% of the motor vehicle fleet being fueled onsite is equipped with ORVR." 

3. For EPA to approve an exemption from Stage II into the Texas SIP for the fueling of new 

vehicles at an automobile assembly plant, the State must include in its rulemaking process its 

technical evaluation that the widespread use benchmark has been achieved for these types of 

plants. TCEQ also must provide assurance that any automobile assembly plant wishing to 

remove Stage II equipment maintains its eligibility for its motor vehicle fleet to operate under the 

exemption. 

4. For EPA to approve an exemption from Stage IT into the Texas SIP for the refueling of 

rental cars at rental car facilities, TCEQ must include in its rulemaking process its technical 

evaluation that the widespread use benchmark has been achieved for the rental car facilities. 

TCEQ also must provide assurance that any rental car facility wishing to remove Stage II 

equipment maintains its eligibility for its motor vehicle fleet to operate under the exemption. 

5. For EPA to approve an exemption from Stage II into the Texas SIP for the refueling of 

flexible fuel vehicles at E85 facilities, TCEQ must include in its rulemaking process its technical 

evaluation that that any increase in emissions caused by operating E85 fueling facilities without 

Stage II controls is so small as to clearly not interfere with attainment of the ozone standard or 

reasonable further progress or any other applicable CAA requirement. 

6. For EPA to approve any of these three exemptions from Stage II into the Texas SIP, 

TCEQ must include in its rulemaking process how the exemption meets the requirements of 

Section 110(1) of the FCAA. Region 6 would welcome the opportunity to work with TCEQ 

during this rule development process. 
INDEX OF ORAL TESTIMONY 

No oral testimony was received pertaining to this proposal. 
Texas Commission on Environmental Quality 

Public Hearing Registration 

February 27, 2007 

2:00p.m. 

Rule Project No.: 2006-049-115-EN 

Short Title: 

Location: 

Concerning: 

Stage II Vapor Recovery Rule Revision 

TCEQ Complex, Bldg. F, Room 2210 

Revisions to 30 T AC Chapter 115 

Name 

(Please Print) Representing 

r 

!kf-5 

Presenting Oral Testimony? 

(Circle One) 

Yes~ 

Yes & 

Yes~ 

Yes® 

Yes No 

Yes No 
EVALUATION OF

TESTIMONY
To: 

Thru: 

Commissioners 

LaDonna Castafiuela, Chief Clerk 

Glenn Shankle, Executive Director 

Date: June 8, 2007 

From: David C. Schanbacher, P.E., Chief Engineer \)c_) 

Docket No.: 2006-1996-RUL 

Subject: C01mnission Approval for Rulemaking Adoption 

Chapter 115, Control of Air Pollution from Volatile Organic Compounds 

Stage II Vapor Recovery Rule Revision 

Rule Project No. 2006-049-115-EN 

Reasons for the rule package: 

The adopted rule revision would provide an exemption for facilities where 95% or more of the 

motor vehicle fleet being fueled onsite is equipped with onboard refueling vapor recovery (ORVR) 

equipment. Stage II is an unnecessary expense for these facilities because refueling emissions are 

captured via vehicle ORVR instead of the Stage II dispenser. The United States Environmental 

Protection Agency (EPA) estimates it costs about $40,000 to install a vacuum-assist system and 

$4100 per year to maintain it. ORVR systems capture vapors otherwise vented to the atmosphere. 

ORVR systems are passive systems that force gasoline vapors displaced from a vehicle's fuel tank 

during refueling to be directed to a carbon-canister holding system and ultimately to the engine 

where they are consumed. EPA phased in ORVR systems for automobiles starting with model 

year 1998. All automobiles manufactured after 2000 must be equipped with ORVR. Phase-in of 

ORVR for light-duty trucks began in model year 2001, and by model year 2003, all new light-duty 

trucks were required to have ORVR systems. 

• Under what authority are we adopting these changes? TheTexas Water Code (TWC), §5.103, 

and §5.105, which authorize the commission to adopt rules necessary to carry out its powers and 

duties under the TWC; and under Texas Health and Safety Code (THSC), §382.017, which 

authorizes the c01mnission to adopt rules consistent with the policy and purposes of the Texas 

Clean Air Act. The THSC, §382.002 also establishes the commission's purpose to safeguard the 

state's air resources, consistent with the protection of public health, general welfare, and physical 

property; §382.0 11, which authorizes the commission to control the quality of the state's air; 

§382.012, which authorizes the commission to prepare and develop a general, comprehensive plan 

for the control of the state's air; and §382.019, which authorizes the commission to adopt Stage II 

rules in nonattainment areas if demonstrated as necessary for attainment of the ozone National 

Ambient Air Quality Standards, or upon a determination that it is necessary to protect public 

health; and §382.208, which authorizes the commission to develop and implement transportation 

programs and other measures necessary to demonstrate attainment and protect the public from 

exposure to hazardous air contaminants from motor vehicles. 

• Is this rulemaking required by federal rule or state statute? Which ones? No. 

• Are there any legal deadlines by which these rules must be adopted or effective? No. 
Commissioners 

Page 2 

June 8, 2007 

Re: Docket No. 2006-1 996-RUL 

onsite is equipped with ORVR. Refueling emissions are captured via vehicle ORVR instead of the 

Stage II dispenser. 

• Why is it important that we do this rule package? This rule package is needed because Stage II 

equipment is not effective when combined with ORVR. This rule would only affect facilities where 

95% or more of the motor vehicle fleet being fueled onsite is equipped with ORVR. 

• Other important background or historical information. A petition was filed with the executive 

director on October 5, 2006, by Kelly Hart & Hallman, LLP, on behalf of General Motors 

Corporation and the petition was considered at the November 15, 2006, agenda. The commission 

directed executive d-irector's staffto initiate rulemaking for this matter. 

Scope of the rulemaking: 

The adopted rulemaking will make a reviSion to §115.247 removing Stage II requirements for 

facilities where 95% or more of the motor vehicle fleet being fueled onsite is equipped with ORVR. 

• Changes required by federal rule: None. 

• Changes required by state statute: None. 

• Staff recommendations that are not expressly required by federal rule or state statute: None. 

Impact on the regulated community: 

• Who will be affected? Any facility currently required to have a Stage II program where 95% or 

more of the motor vehicle fleet being fueled onsite is equipped with ORVR. 

• Does it create a group of affected persons who were not affected previously? How? No. 

• Will there be a fiscal impact? lf so, estimate. The fiscal impact wit! be a positive one. In the case 

of General Motors, eliminating this requirement will save about $45,000 per year because of their 

specific configuration. 

Impact on the public: 

• Who will be affected? None. 

• Does it create a group of affected persons who were not affected previously? How? No. 

• Will there be a fiscal impact? If so, estimate. No. 

Impact on agency programs: 

Currently, The Office of Compliance and Enforcement, Field Operations Division, inspects Stage II 

facilities once every three years at a maximum, once every five years minimum. 

Stakeholder meetings: 
Commissioners 

Page 3 

June 8, 2007 

Re: Docket No. 2006-1996-RUL 

• Have any stakeholder meetings been held? No. 

• With whom? N/A 

• What were the general sentiments? N/A 

• 'Vere any changes made in r-esponse to stakeholder concerns? No. 

Policy issues: 

• What policy issues are affected? None. 

• Are any policies that are not currently based on rule being made into a rule? No. 

• What are the consequences if this rulemaking is not approved to go forward? Facilities that are 

currently fueling and refueling vehicles equipped with ORVR would have to comply with current 

Stage II rules. 

• Are there alternatives? No. 

Potentially controversial matters: None. 

Key points in adoption rulemaking schedule: 

• Texas Register publication date: January 26, 2007 

• Anticipated effective date: July 19, 2007 

• Six-month Texas Register filing date: July 26, 2007 

Public Comment: 

The public hearings for the rulemaking were held on February 27, 2007, at 2:00p.m. at the Texas 

Commission on Environmental Quality Complex, Building F, Room 221 0, 121 00 Park 3 5 Circle, 

Austin, and on February 28, 2007, at 2:00p.m. at the City of Arlington Council Chambers located at 

101 West Abrams Street, Arlington. 

The United States Environmental Protection Agency (EPA), the Sierra Club, Harris County Public 

Health & Environmental Services, and Kelly I-lmi & Hallman LLP on behalf of General Motors 

submitted written comments. 

Significant changes from proposal: 

Changes have been made to §115.247(3) in response to comments made by EPA. The exemption 

has been changed from facilities used exclusively for the fueling and/or refueling of vehicles 

equipped with on board refueling vapor recovery equipment to facilities where 95% or more of the 

motor vehicle fleet being fueled onsite is equipped with onboard refueling vapor recovery 

equipment. This change is due to a December 12, 2006, memo issued by EPA while this rule was 

pending proposal. 
Commissioners 

Page 4 

June 8, 2007 

Re: Docket No. 2006-J 996-RUL 

Agency contacts: 

Koy Howard, Rule Project Manager, 239-2306, Air Quality Division 

Andrea Casey. Staff Attorney, 239-6744 

Patricia Duron, Texas Register Coordinator, 239-6087 

Attachments 

cc: Chief Clerk, 5 copies 

Executive Director's Office 

David C. Schanbacher, P.E. 

Jason Skaggs 

Ashley K. Wadick 

Office of General Counsel 

Susana M. Hildebrand, P.E. 

Kay Howard 

Patricia Duron 

cc (without attachments): 

Andrea Casey, Staff Attorney 

Kerry Howard, Program Office Liaison 

Joyce Spencer, Division Liaison 

Margie McAllister, Team Leader 

Booker Harrison, OLS Liaison 

Russ Kimble, OLS 
EVALUATION OF TESTIMONY 

The Texas Commission on Environmental Quality (commission) adopts the amendment to 

§ 115.24 7. Section 115.24 7 is adopted with changes to the proposed text as published in the 

January 26, 2007, issue of the Texas Register (32 TexReg 282). 

The adopted amendment will be submitted to the United States Environmental Protection 

Agency (EPA) as a revision to the State Implementation Plan. 

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULE 

For facilities where 95% or more of the motor vehicle fleet being fueled onsite is equipped with 

onboard refueling vapor recovery (ORVR) equipment, Stage II vapor recovery equipment is an 

unnecessary expense because refueling emissions are captured via the vehicle's ORVR 

equipment instead of the Stage II dispenser. The EPA estimates it costs about $40,000 to install 

a Stage II vacuum-assist system and $4,100 per year to maintain it. ORVR systems capture 

vapors otherwise vented to the atmosphere. ORVR systems are passive systems that force 

gasoline vapors displaced from a vehicle's fuel tank during refueling to be directed to a carboncanister holding system and ultimately to the engine where they are consumed. EPA phased in 

ORVR systems for automobiles starting with model year 1998. All automobiles manufactured 

after 2000 must be equipped with ORVR. Phase-in of ORVR for light-duty trucks began in 

model year 2001, and by model year 2003, all new light-duty trucks were required to have 

ORVR systems. 

SECTION DISCUSSION 

The adopted amendment to §115.247, Exemptions, would add paragraph (3) any motor vehicle 

dispensing facility where 95% or more of the motor vehicle fleet being fueled onsite is equipped 

with onboard refueling vapor recovery equipment. To maintain a facility's exempt status under 

this paragraph, the owner or operator must submit documentation showing the fleet meets the 

1 
requirements under this paragraph on an annual basis no later than January 31 of each year to 

the executive director or designated representative. 

ANTI-BACKSLIDING DEMONSTRATION 

The Stage II program is a Federal Clean Air Act (FCAA) specified volatile organic compound 

(VOC) control strategy for certain ozone nonattainment areas. Stage II vapor recovery 

equipment must be certified by EPA to achieve a minimum 95% control efficiency for VOC 

emissions, as detailed in their Stage II Vapor Recovery Systems-Options Paper dated February 

7, 2006. ORVR systems capture VOC emissions inside the vehicle thus making Stage II vapor 

recovery equipment unnecessary. Therefore, exempting facilities that refuel only ORVRequipped vehicles from the Stage II program will not result in increased VOC emissions 

because the fugitive emissions will be captured via the vehicle's ORVR system. 

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION 

The commission reviewed the rulemaking in light of the regulatory analysis requirements of 

Texas Government Code, §2001.0225, and determined the rulemaking is not subject to 

§2001.0225 because it does not meet the definition of a "major environmental rule" as defined 

in the act. 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 provide an exemption from Stage II vapor 

recovery requirements for facilities where 95% or more of the motor vehicle fleet being fueled 

onsite is equipped with ORVR equipment because use of both provides no net environmental 

benefit. The commission solicited public comment on the draft regulatory impact analysis 

determination. No comments were received on the draft regulatory impact analysis 

determination. Also, the amendment is adopted to continue to meet the requirements of 42 

United States Code, §7511 a(b)(3) and Texas Health and Safety Code (THSC), §382.019 and 

2 
§382.208, but in a less financially burdensome manner on owners and operators of gasoline 

dispensing facilities. 

TAKINGS IMPACT ASSESSMENT 

The commission evaluated the rulemaking and performed a preliminary assessment of whether 

Texas Government Code, Chapter 2007 is applicable. The commission's preliminary 

assessment indicates Texas Government Code, Chapter 2007 does not apply to the adopted 

amendment because this action discontinues Stage II vapor recovery requirements for specific 

·regulated activities. Promulgation and enforcement of the proposed amendment would be 

neither a statutory or constitutional taking of private real property. Specifically, the proposed 

amendment does 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. 

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 TAG Chapter 281, Subchapter B, concerning Consistency with the 

CMP. As required by §281.45(a)(3) and 31 TAG §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 CIVlP 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 TAG §501.12(1 )). No new sources of air 

3 
contaminants will be authorized and the adopted revisions will maintain the same level of 

emissions control as the existing rules. The CMP policy applicable to this rulemaking action is 

the policy that commission rules comply with federal regulations in 40 Code of Federal 

Regulations (CFR), to protect and enhance air quality in the coastal areas (31 TAC §501.14(q)). 

This rulemaking action complies with 40 CFR Part 51, Requirements for Preparation, Adoption, 

and Submittal of Implementation Plans. Therefore, in compliance with 31 TAC §505.22(e), the 

commission affirms that this rulemaking action is consistent with CPM goals and policies. 

EFFECT ON SITES SUB.IECT TO THE FEDERAL OPERATING PERMITS PROGRAM 

Chapter 115 contains applicable requirements under 30 TAC Chapter 122, Federal Operating 

Permits; therefore, owners or operators subject to the Federal Operating Permit Program must, 

consistent with the revision process in Chapter 122, revise their operating permits to include the 

revised Chapter 115 requirements for each emission unit at their sites affected by the revisions 

to Chapter 115. 

PUBLIC COMMENT 

The proposal was published in the January 26, 2007, issue of the Texas Register (32 TexReg 

282). The commission held a public hearing on February 27, 2007, and on February 28, 2007. 

The comment period closed on March 15, 2007. The commission received comments from the 

Environmental Protection Agency (EPA), Harris County Public Health & Environmental 

Services, Kelly Hart & Hallman LLP, on behalf of General Motors, and Sierra Club. 

RESPOI\ISE TO COMMENTS 

The Sierra Club commented that there are no record-keeping requirements to document that 

only ORVR equipped vehicles are fueled at a pump with no Stage fl equipment and that there 

are no procedures that would ensure that a non-ORVR equipped vehicle would be fueled at a 

pump with no Stage fl equipment. The Sierra Club also asks where the description of TCEQ 

compliance and enforcement programs required to implement this proposed exemption are. 

4 
The commission appreciates the comment. This exemption is targeted toward those 

facilities with fleets. When the facilities are inspected by TCEQ Compliance and 

Enforcement staff, they will be required to provide documentation showing what vehicles 

are in their fleet. At that time, TCEQ staff will review the documentation to ensure that all 

vehicles in the fleet are ORVR equipped. Facilities will also have to apply for an 

exemption every year. 

The Sierra Club asks how the TCEQ will verify that the ORVR systems are working so that 

volatile organic compound emissions are not escaping into the air when fueled at pumps with no 

Stage II equipment. 

The vehicle's On Board Diagnostic system identifies any malfunctions via the 

Malfunction Indicator Light with the vapor recovery system and alerts the vehicle 

operator that repairs are necessary. In Inspection and Maintenance (1/M) program areas 

the On Board Diagnostic system is tested annually during thevehicle's On Board 

Diagnostic test. Vehicles with an identified problem are not allowed to receive the annual 

safety and emissions certificate unless and until the problem is corrected. 

Harris County Public Health & Environmental Services (HCPHES) was generally in support of 

the rule. HCPHES expressed a concern regarding the ability of a facility to demonstrate and the 

record keeping necessary for inspectors to verify that the dispensing facility is indeed used 

exclusively for the fueling and/or refueling of vehicles equipped with ORVR. 

The commission appreciates the comment. This exemption is targeted toward those 

facilities with fleets. When the facilities are inspected by TCEQ Compliance and 

Enforcement staff, they will be required to provide documentation showing what vehicles 

are in their fleet. At that time, TCEQ staff will review the documentation to ensure that all 

5 
vehicles in the fleet are ORVR equipped. Facilities will also be required to submit a Stage 

II Vapor Recovery Exemption Confirmation Form to the TCEQ on a yearly basis. 

The EPA commented that in general, they were in support of this rulemaking. EPA did request 

clarification on the types of fleets affected in this rule and revision of the language to be clear 

that only fueling of new vehicles at automobile assembly plants and refueling of rental cars at 

rental car facilities are exempt. The EPA commented that the TCEQ may consider changing the 

rule language to "where 95% or more of the motor vehicle fleet being fueled onsite is equipped 

with ORVR" rather than "where more than 95% of the motor vehicle fleet being fueled onsite is 

equipped with ORVR." 

The commission appreciates the comment and has clarified the types of fleets this rule 

will affect. The commission also agrees that the language should be changed and has 

done so. 

The EPA commented that in order for them to approve an exemption from Stage II into the 

Texas SIP for the fueling of new vehicles at an automobile assembly plant or rental car facility, 

the State must include its technical evaluation that the widespread use benchmark has been 

achieved for these types of facilities. TCEQ must also provide assurance that any facility 

wishing to remove Stage II equipment maintains its eligibility for its motor vehicle fleet to 

operate under the exemption. 

The commission contends that EPA's December 12, 2006, Memorandum entitled 

"Removal of Stage II Vapor Recovery in situations Where Widespread Use of On board 

Refueling Vapor Recovery is Demonstrated" provides the technical evaluation that the 

widespread use benchmark has been achieved for automobile assembly plants. The 

memo states that "EPA believes that if 95 percent of the vehicles in a fleet have ORVR, 

then widespread use will likely have been demonstrated." The TCEQ will provide the 

6 
assurance that that any automobile assembly plant wishing to remove Stage II 

equipment maintains its eligibility for its motor vehicle fleet to operate under the 

exemption by continuing to inspect the facilities. When the facilities are inspected by 

TCEQ Compliance and Enforcement staff, they will be required to provide documentation 

showing what vehicles are in their fleet. At that time TCEQ staff will review the 

documentation to ensure that all vehicles in the fleet are ORVR equipped. Facilities will 

also be required to submit a Stage II Vapor Recovery Exemption Confirmation Form to 

the TCEQ on a yearly basis. 

The EPA commented that in order for them to approve any of these exemptions from Stage II 

into the Texas SIP, the State must include in its rulemaking process how the exemption meets 

the requirements of Section 11 0(1) of the FCAA. 

The commission appreciates the comment and has addressed this in the anti-backsliding 

demonstration. 

The EPA commented that in order for them to approve an exemption from Stage II into the 

Texas SIP for the fueling of flexible fuel vehicles at E85 facilities, the State must include in its 

rulemaking process its technical evaluation that any increase in emissions caused by operating 

E85 fueling facilities without Stage II controls is so small as to clearly not interfere with 

attainment of the ozone standard or reasonable further progress or any other applicable CAA 

requirement. 

The commission appreciates the comment concerning the fueling of flexible fuel vehicles 

at E85 facilities, however this is beyond the scope of this rulemaking. This rulemaking 

will remove requirements for fleet refueling facilities only. This will not affect 

requirements for facilities open to the public. In order to be exempt under this rule, the 

facility will have to provide documentation proving 95% or more of the vehicles in the 

7 
fleet are equipped with ORVR. No increase in emissions are expected, and therefore this 

rulemaking will not interfere with attainment of the ozone standard or reasonable 

progress toward meeting that standard. 

Kelly Hart & Hallman LLP Attorneys at Law commented on behalf of General Motors 

Corporation in support of this rulemaking. 

The commission appreciates the comment in support of the rulemaking. 

8 
STAFF

RECOMMENDATIONS
SUBCHAPTER C: VOLATILE ORGANIC COMPOUND TRANSFER OPERATIONS 

DIVISION 4: CONTROL OF VEHICLE REFUELING EMISSIONS (STAGE II) 

AT MOTOR VEHICLE FUEL DISPENSING FACILITIES 

§115.247 

STATUTORY AUTHORITY 

The amendment is adopted 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. 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. 

The adopted amendment implements THSC, §§382.002, 382.011, 382.012, and 382.208. 
§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; 

(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; and 

(3) any motor vehicle dispensing facility where 95% or more of the motor vehicle fleet 

being fueled onsite is equipped with onboard refueling vapor recovery equipment. To maintain a facility's 

exempt status under this paragraph, the owner or operator must submit documentation showing the fleet 

meets the requirements under this paragraph on an annual basis no later than January 31 of each year to 

the executive director or designated representative. 

2 
TEXAS COlVl1VliSSION ON ENVIRON~-6\JP:__QU.A.LITY GOUfffi 1::1~ -f~~VIS 

I hereby certify t.'lat this is a tfUtS &ns IAA+Oiil ~ ef 9 

Texas Commission on Environmental Quality acx:urnent. 

Which rs filed m the permanent records of the Commission. 

Given u ·er my hand and the seal of office on 

JUL 1'1 007 

Lta Castanuela, Chief Cieri< 

l~ Commission on Environmental Quality 

ORDER ADOPTING AMENDED RULE AND 

REVISION TO THE STATE IMPLEMENTATION PLAN 

Docket No. 2006-1996-RUL 

On June 27, 2007, the Texas Commission on Environmental Quality (Commission), during a 

public meeting, considered adoption of amended section 115.24 7, Exemptions. The Commission adopts 

this amendment, in Chapter 115, Control of Air Pollution from Volatile Organic Compounds; and the 

corresponding revision to the state implementation plan (SIP). The adoption would exempt facilities 

where 95% or more of the motor vehicle fleet being fueled onsite is equipped with onboard refueling 

vapor recovery (ORVR) equipment from State II requirements in Chapter 115. 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 rule was published 

for comment in the January 26, 2007 issue of the Texas Register (32 Tex Reg 282). 

Pursuant to Tex. Health & Safety Code Ann.§ 382.017 (Vernon 2001), Tex. Gov't Code Chapter 

2001 (Vemon 2000 & Vemon Supp. 2005), and 40 Code of Federal Regulations § 51.102, and after 

proper notice, the Commission conducted two public hearings to consider the amended rule and revision 

to the SIP. Proper notice included prominent advertisement in the areas affected at least 30 days prior to 

the dates of the hemings. Public hearings were held in Austin on February 27, 2007 and in Arlington on ;:;:-. ...... .. : 

February 28, 2007. 

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 

rule and SIP revision, either orally or in writing, at the hearings or during the comment period. Prior to 
the scheduled hearings, copies of the proposed amended rule and SIP revision were available for public 

inspection at the Commission's central office and on the Commission's Web site. 

, , : f . Da~~;, views, and recommendations of interested persons regarding the proposed amended rule and 

· SIPO revision were submitted to the Commission during the comment period, and were considered by Lhe 

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 rule and the SIP revision and their position 

concerning the same. 

IT IS THEREFORE ORDERED BY THE COMMISSION that the amended rule and revision to 

the SIP incorporated by reference to tl1is Order are hereby adopted. The Commission further authorizes 

staff to make any non-substantive revisions to the rule necessary to comply with Texas Register 

requirements. The adopted rule and the preamble to the adopted rule and the revision 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 rule and revision to the SIP, to 

the Regional Administrator of EPA as a proposed revision to the Texas SIP pursuant to the Federal Clean 

Air Act,§ 110, codified at 42 U.S. Code Ann.§§ 7401 - 7671q, as amended. 

This Order constitutes the Order of the Commission required by the Administrative Procedure 

Act, Tex. Gov't Code, § 2001.033 (Vernon 2000 & Vernon Supp. 2005). 

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: JUl 13 20G7 TEXAS COMMISSION ON 

ENVIRONMENTAL QUALITY 

/Jill 
has not been properly represented in the conformity determination for

an MTP or TIP. Finally, these agencies shall provide opportunity for

public involvement in conformity determinations for projects where

otherwise required by law.

(6) Good-faith effort made by the consulting agencies. In

formulating an enforcement policy regarding a violation of this subsection (relating to the consultation process) the commission may consider

any good-faith effort made by the consulting agencies to comply.

(e) Regionally signicant, non-federal projects. For the purposes of 40 CFR §93.121, adoption or approval of a regionally signicant, non-federal project (a regionally signicant project that does

not require FHWA or FTA approval or funding) occurs when affected

agencies that are recipients of federal funds designated under 23 USC

or the federal transit laws take one of the following actions:

(1) board approval, action, or resolution (such approval,

action, or resolution does not include MPO approval for the purposes

of approving a project in a currently conforming MTP or TIP);

(2) issuance of administrative permits for the regionally

signicant project;

(3) action of ofcial authorizing the regionally signicant

project to proceed;

(4) providing grants or loans for the construction of a regionally signicant project; or

(5) contract execution for the regionally signicant project.

(f) Compliance date. Compliance with this section is required

for transportation conformity determinations that begin the interagency

consultation process after the date of EPA approval of the transportation

conformity SIP associated with this rule.

This agency hereby certies 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 Ofce of the Secretary of State on June 29, 2007.

TRD-200702756

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: July 19, 2007

Proposal publication date: February 9, 2007

For further information, please call: (512) 239-0177

CHAPTER 115. CONTROL OF AIR

POLLUTION FROM VOLATILE ORGANIC

COMPOUNDS

SUBCHAPTER C. VOLATILE ORGANIC

COMPOUND TRANSFER OPERATIONS

DIVISION 4. CONTROL OF VEHICLE

REFUELING EMISSIONS (STAGE II) AT

MOTOR VEHICLE FUEL DISPENSING

FACILITIES

30 TAC §115.247

The Texas Commission on Environmental Quality (commission)

adopts the amendment to §115.247. Section 115.247 is adopted

with changes to the proposed text as published in the January

26, 2007, issue of the Texas Register (32 TexReg 282).

The adopted amendment will be submitted to the United States

Environmental Protection Agency (EPA) as a revision to the

State Implementation Plan.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS

FOR THE ADOPTED RULE

For facilities where 95% or more of the motor vehicle eet being

fueled onsite is equipped with onboard refueling vapor recovery (ORVR) equipment, Stage II vapor recovery equipment is

an unnecessary expense because refueling emissions are captured via the vehicle’s ORVR equipment instead of the Stage

II dispenser. The EPA estimates it costs about $40,000 to install a Stage II vacuum-assist system and $4,100 per year to

maintain it. ORVR systems capture vapors otherwise vented to

the atmosphere. ORVR systems are passive systems that force

gasoline vapors displaced from a vehicle’s fuel tank during refueling to be directed to a carbon-canister holding system and

ultimately to the engine where they are consumed. EPA phased

in ORVR systems for automobiles starting with model year 1998.

All automobiles manufactured after 2000 must be equipped with

ORVR. Phase-in of ORVR for light-duty trucks began in model

year 2001, and by model year 2003, all new light-duty trucks

were required to have ORVR systems.

SECTION DISCUSSION

The adopted amendment to §115.247, Exemptions, would add

paragraph (3) any motor vehicle dispensing facility where 95%

or more of the motor vehicle eet being fueled onsite is equipped

with onboard refueling vapor recovery equipment. To maintain

a facility’s exempt status under this paragraph, the owner or operator must submit documentation showing the eet meets the

requirements under this paragraph on an annual basis no later

than January 31 of each year to the executive director or designated representative.

ANTI-BACKSLIDING DEMONSTRATION

The Stage II program is a Federal Clean Air Act (FCAA) speci-

ed volatile organic compound (VOC) control strategy for certain

ozone nonattainment areas. Stage II vapor recovery equipment

must be certied by EPA to achieve a minimum 95% control ef-

ciency for VOC emissions, as detailed in their Stage II Vapor Recovery Systems-Options Paper dated February 7, 2006. ORVR

systems capture VOC emissions inside the vehicle thus making

Stage II vapor recovery equipment unnecessary. Therefore, exempting facilities that refuel only ORVR-equipped vehicles from

the Stage II program will not result in increased VOC emissions

because the fugitive emissions will be captured via the vehicle’s

ORVR system.

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the rulemaking in light of the regulatory analysis requirements of Texas Government Code,

§2001.0225, and determined the rulemaking is not subject to

§2001.0225 because it does not meet the denition of a "major

environmental rule" as dened in the act. A "major environmental rule" is a rule which is specically 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

ADOPTED RULES July 13, 2007 32 TexReg 4411
state or a sector of the state. The intent of this rulemaking

action is to provide an exemption from Stage II vapor recovery

requirements for facilities where 95% or more of the motor vehicle eet being fueled onsite is equipped with ORVR equipment

because use of both provides no net environmental benet. The

commission solicited public comment on the draft regulatory

impact analysis determination. No comments were received on

the draft regulatory impact analysis determination. Also, the

amendment is adopted to continue to meet the requirements

of 42 United States Code, §7511a(b)(3) and Texas Health and

Safety Code (THSC), §382.019 and §382.208, but in a less

nancially burdensome manner on owners and operators of

gasoline dispensing facilities.

TAKINGS IMPACT ASSESSMENT

The commission evaluated the rulemaking and performed a preliminary assessment of whether Texas Government Code, Chapter 2007 is applicable. The commission’s preliminary assessment indicates Texas Government Code, Chapter 2007 does

not apply to the adopted amendment because this action discontinues Stage II vapor recovery requirements for specic regulated activities. Promulgation and enforcement of the proposed

amendment would be neither a statutory or constitutional taking

of private real property. Specically, the proposed amendment

does 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.

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 adopted revisions

will maintain the same level of emissions control as the existing

rules. The CMP policy applicable to this rulemaking action is the

policy that commission rules comply with federal regulations in

40 Code of Federal Regulations (CFR), to protect and enhance

air quality in the coastal areas (31 TAC §501.14(q)). This rulemaking action complies with 40 CFR Part 51, Requirements for

Preparation, Adoption, and Submittal of Implementation Plans.

Therefore, in compliance with 31 TAC §505.22(e), the commission afrms that this rulemaking action is consistent with CPM

goals and policies.

EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING

PERMITS PROGRAM

Chapter 115 contains applicable requirements under 30 TAC

Chapter 122, Federal Operating Permits; therefore, owners

or operators subject to the Federal Operating Permit Program

must, consistent with the revision process in Chapter 122,

revise their operating permits to include the revised Chapter

115 requirements for each emission unit at their sites affected

by the revisions to Chapter 115.

PUBLIC COMMENT

The proposal was published in the January 26, 2007, issue of the

Texas Register (32 TexReg 282). The commission held a public

hearing on February 27, 2007, and on February 28, 2007. The

comment period closed on March 15, 2007. The commission

received comments from the Environmental Protection Agency

(EPA), Harris County Public Health & Environmental Services,

Kelly Hart & Hallman LLP, on behalf of General Motors, and

Sierra Club.

RESPONSE TO COMMENTS

The Sierra Club commented that there are no record-keeping requirements to document that only ORVR equipped vehicles are

fueled at a pump with no Stage II equipment and that there are

no procedures that would ensure that a non-ORVR equipped vehicle would be fueled at a pump with no Stage II equipment. The

Sierra Club also asks where the description of TCEQ compliance

and enforcement programs required to implement this proposed

exemption are.

RESPONSE

The commission appreciates the comment. This exemption is

targeted toward those facilities with eets. When the facilities are

inspected by TCEQ Compliance and Enforcement staff, they will

be required to provide documentation showing what vehicles are

in their eet. At that time, TCEQ staff will review the documentation to ensure that all vehicles in the eet are ORVR equipped.

Facilities will also have to apply for an exemption every year.

The Sierra Club asks how the TCEQ will verify that the ORVR

systems are working so that volatile organic compound emissions are not escaping into the air when fueled at pumps with no

Stage II equipment.

RESPONSE

The vehicle’s On Board Diagnostic system identies any malfunctions via the Malfunction Indicator Light with the vapor recovery system and alerts the vehicle operator that repairs are

necessary. In Inspection and Maintenance (I/M) program areas

the On Board Diagnostic system is tested annually during the

vehicle’s On Board Diagnostic test. Vehicles with an identied

problem are not allowed to receive the annual safety and emissions certicate unless and until the problem is corrected.

Harris County Public Health & Environmental Services

(HCPHES) was generally in support of the rule. HCPHES

expressed a concern regarding the ability of a facility to demonstrate and the record keeping necessary for inspectors to verify

that the dispensing facility is indeed used exclusively for the

fueling and/or refueling of vehicles equipped with ORVR.

RESPONSE

The commission appreciates the comment. This exemption is

targeted toward those facilities with eets. When the facilities are

inspected by TCEQ Compliance and Enforcement staff, they will

be required to provide documentation showing what vehicles are

in their eet. At that time, TCEQ staff will review the documen32 TexReg 4412 July 13, 2007 Texas Register
tation to ensure that all vehicles in the eet are ORVR equipped.

Facilities will also be required to submit a Stage II Vapor Recovery Exemption Conrmation Form to the TCEQ on a yearly basis.

The EPA commented that in general, they were in support of

this rulemaking. EPA did request clarication on the types of

eets affected in this rule and revision of the language to be clear

that only fueling of new vehicles at automobile assembly plants

and refueling of rental cars at rental car facilities are exempt.

The EPA commented that the TCEQ may consider changing the

rule language to "where 95% or more of the motor vehicle eet

being fueled onsite is equipped with ORVR" rather than "where

more than 95% of the motor vehicle eet being fueled onsite is

equipped with ORVR."

RESPONSE

The commission appreciates the comment and has claried the

types of eets this rule will affect. The commission also agrees

that the language should be changed and has done so.

The EPA commented that in order for them to approve an exemption from Stage II into the Texas SIP for the fueling of new

vehicles at an automobile assembly plant or rental car facility, the

State must include its technical evaluation that the widespread

use benchmark has been achieved for these types of facilities.

TCEQ must also provide assurance that any facility wishing to

remove Stage II equipment maintains its eligibility for its motor

vehicle eet to operate under the exemption.

RESPONSE

The commission contends that EPA’s December 12, 2006, Memorandum entitled "Removal of Stage II Vapor Recovery in situations Where Widespread Use of Onboard Refueling Vapor Recovery is Demonstrated" provides the technical evaluation that

the widespread use benchmark has been achieved for automobile assembly plants. The memo states that "EPA believes that if

95 percent of the vehicles in a eet have ORVR, then widespread

use will likely have been demonstrated." The TCEQ will provide

the assurance that that any automobile assembly plant wishing

to remove Stage II equipment maintains its eligibility for its motor vehicle eet to operate under the exemption by continuing to

inspect the facilities. When the facilities are inspected by TCEQ

Compliance and Enforcement staff, they will be required to provide documentation showing what vehicles are in their eet. At

that time TCEQ staff will review the documentation to ensure that

all vehicles in the eet are ORVR equipped. Facilities will also be

required to submit a Stage II Vapor Recovery Exemption Conrmation Form to the TCEQ on a yearly basis.

The EPA commented that in order for them to approve any of

these exemptions from Stage II into the Texas SIP, the State

must include in its rulemaking process how the exemption meets

the requirements of Section 110(l) of the FCAA.

RESPONSE

The commission appreciates the comment and has addressed

this in the anti-backsliding demonstration.

The EPA commented that in order for them to approve an exemption from Stage II into the Texas SIP for the fueling of exible fuel

vehicles at E85 facilities, the State must include in its rulemaking

process its technical evaluation that any increase in emissions

caused by operating E85 fueling facilities without Stage II controls is so small as to clearly not interfere with attainment of the

ozone standard or reasonable further progress or any other applicable CAA requirement.

RESPONSE

The commission appreciates the comment concerning the fueling of exible fuel vehicles at E85 facilities, however this is beyond the scope of this rulemaking. This rulemaking will remove

requirements for eet refueling facilities only. This will not affect

requirements for facilities open to the public. In order to be exempt under this rule, the facility will have to provide documentation proving 95% or more of the vehicles in the eet are equipped

with ORVR. No increase in emissions are expected, and therefore this rulemaking will not interfere with attainment of the ozone

standard or reasonable progress toward meeting that standard.

Kelly Hart & Hallman LLP Attorneys at Law commented on behalf

of General Motors Corporation in support of this rulemaking.

RESPONSE

The commission appreciates the comment in support of the rulemaking.

STATUTORY AUTHORITY

The amendment is adopted 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. 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.

The adopted amendment implements THSC, §§382.002,

382.011, 382.012, and 382.208.

§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;

(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; and

(3) any motor vehicle dispensing facility where 95% or

more of the motor vehicle eet being fueled onsite is equipped with

onboard refueling vapor recovery equipment. To maintain a facility’s

exempt status under this paragraph, the owner or operator must submit

documentation showing the eet meets the requirements under this

ADOPTED RULES July 13, 2007 32 TexReg 4413
paragraph on an annual basis no later than January 31 of each year to

the executive director or designated representative.

This agency hereby certies 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 Ofce of the Secretary of State on June 29, 2007.

TRD-200702757

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: July 19, 2007

Proposal publication date: January 26, 2007

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

TITLE 31. NATURAL RESOURCES AND

CONSERVATION

PART 2. TEXAS PARKS AND

WILDLIFE DEPARTMENT

CHAPTER 53. FINANCE

SUBCHAPTER A. FEES

DIVISION 1. LICENSE, PERMIT, AND BOAT

AND MOTOR FEES

31 TAC §53.14

The Texas Parks and Wildlife Commission adopts an amendment to §53.14, concerning Deer Management and Removal

Permits, without changes to the proposed text as published in

the April 20, 2007, issue of the Texas Register (32 TexReg 2249).

The amendment increases the fees for Deer Management Permit (DMP) renewals and Permits to Trap, Transport, and Transplant Game Animals and Game Birds (popularly referred to as

"Triple T" permits).

The portion of the amendment affecting the Triple T permit

(which includes the urban white-tailed deer removal permit)

increases the fee for a Triple T application from $180 to $750.

Elsewhere in this issue, the department is adopting an amendment to the Triple T rules in Chapter 65 that would require

the payment of the prescribed Triple-T fee on a per-release

site basis. In Fiscal Year 2006, the department issued 75

Triple T permits authorizing trapping activities at 63 sites and

release activities at 163 sites. The department incurred costs

of approximately $120,830 to process applications, perform site

inspections, observe and enforce compliance, and prosecute

violations of Triple T regulations; however, revenue from permit

fees during the same time period was $13,500.

It is the policy of the Texas Parks and Wildlife Commission that

the department recover the cost of administering permit programs that authorize the possession of live game animals. Additionally, under Parks and Wildlife Code, §43.061, the state may

not incur any expense for the trapping, transporting, and transplanting of game animals and game birds under a permit issued

under Parks and Wildlife Code, Chapter 43, Subchapter E, which

is the authorizing statute for the Triple T permit. The rule as

adopted is necessary for the department to recoup the expenses

of administering the Triple T permit program. The fee of $750

was derived by dividing the cost of program administration and

enforcement by the number of release sites.

The portion of the amendment affecting the DMP would provide a consistent application process for new applications and

renewals. The department has determined that it does not recover the cost of administering the DMP program under current

fee amounts. Under current rule, the fee for the initial issuance

of a DMP is $1,000 and the permit may be renewed annually.

The current fee for a renewal is $600. Under Parks and Wildlife

Code, §43.603, the commission may establish a fee for new or

renewed DMPs, but the fee for a DMP may not exceed $1,000.

The department has determined that it does not recover the cost

of administering the DMP program. In Fiscal Year 2006, the

department issued 38 new DMPs and renewed 40 DMPs, incurring expenses of approximately $92,000 to process applications, perform site and facility inspections, observe and enforce

compliance, and prosecute violations of DMP regulations; however, revenue from permit fees was $62,000. Data from FY 07

is incomplete, but 58 new DMPs have been issued and 46 have

been renewed, an increase of 67%. It is logical to assume that

administrative and enforcement costs have also increased and

continue to be greater than revenue. In fact, FY 07 revenue of

$85,000 is still below the expenses from the previous year, when

there were 67% fewer permits.

Therefore, the department has determined that an increase in

the renewal fee is necessary in order to recoup administrative

and enforcement expenses to the greatest extent possible.

The rule will function by establishing the fee amounts for Triple

T and DMP permits issued by the department.

The department received 19 comments opposing adoption of the

fee increase for Triple T permits. Ten commenters expressed

a specic rationale for opposing adoption. Those comments,

accompanied by the department’s responses, follow.

Eight commenters stated that the fee increase is unjustied and

unfair. The department disagrees with the comments and responds that the fee increase is justied because the department

must follow commission policy in attempting, to the greatest extent possible, to recoup the cost of the program from the users

of the program, since it involves permits to possess live game

animals. No changes were made as a result of the comments.

Ten commenters opposed adoption and stated that the department should delay for further cost/benet analysis. The department disagrees with the comments and responds that further

analysis is unnecessary. The department calculated the cost of

administering and enforcing the Triple T program and distributed

those costs on a per-permit basis. No changes were made as a

result of the comment.

Six commenters opposed adoption and stated that permit users

should have input before the rules are adopted. The department agrees with the comments and responds that in addition to

the required publication of the proposed rules in the Texas Register, the department also published them electronically on the

department’s website (providing an opportunity for comment),

distributed the proposed rules to advocacy groups such as the

Texas Deer Association and the Texas Wildlife Association, and

presented the proposed rules to the department’s White-tailed

Deer Advisory Board, composed of members of the regulated

community. The department considers that sufcient opportu32 TexReg 4414 July 13, 2007 Texas Register