Kathleen Hartnett White, Chairman Larry R. Soward, Commissioner Glenn Shankle, Executive Director 

## RECEiVED

_ 6Po· 

## AIR PLANNING 

# SEl. 0

7



# JUL 30 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 QualityTexas 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 AgencyNOTICE''. 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

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··· 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

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.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.usLOCATION: 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 Of

 ce, 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 petroleumUSTs; PENALTY: $1,600; STAFF ATTORNEY: Rachael Gaines, Litigation Division, MC 175, (512) 239-0078; REGIONAL OFFICE: Corpus Christi Regional Of  ce, 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 PlanThe 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., ArlingtonCity 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 discussionduring 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 Duró n, 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. Thecomment 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 PlanThe 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 equippedwith onboard refueling vapor recover equipment from Stage II requirements in Chapter 115. The commission will hold public hearings on this proposal in Austin onFebruary 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 Duró n, 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 417http://www.5.tceq.state.tx.us.rules/ecomments . All comments should reference Rule Project Number 2006-049-115-EN. Thecomment 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 codi ed 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 IntermediateCare Facilities for Persons with Mental Retardation (ICF/MR), including bond homes, group homes and community centers operated by theTexas Department of Aging and Disability Services (DADS). The public hearing will be held in the Lone Star Conference Room at HHSC ’ s Braker Center of ce 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. Brie ng package. Copies of the brie ng package about the proposed interim reimbursement rate will be available at the hearing. Persons interested in receiving a brie ng 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 justi cation. The proposed rate was determined in accordance with the rate setting methodology codi ed 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 Medicaidreimbursement 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 of  ce 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 withdisabilities 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. mailor overnight express to the attention of Irene Cantu, HHSC Rate Analy

### 32 T exReg 418 January 26, 2007 Texas Registerto 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 1 7 , 20 0 6 [D e c ember 1 6 , 20 05 ], will expire on D ec emb er 3 1 , 20 07

. [D ec ember 3 1 , 2 00 6 , with the f ollow ing ex c eption . The ex ecutive direc tor may allo w a pro du c er operating under an alternativ e emi s s io n reduc ti o n pl an approv ed b y the ex ecutive direc tor pri or to D ec emb er 1 6 , 20 05 , to c o ntinu e to op erate under that pl an f or a limited time b eyo nd D e c ember 3 1 , 2 00 6 , if all the f ollo wing c o nditi o n s are demon strate d to the s ati s f acti on o f the exe cutiv e direc tor : ] [( 1 ) the produc er ’ s alternativ e emi s s io n re du cti on p l an re lie d on the u s e of an altern ative die s el f ormul ati on th at h as not be en appro ved by the exe cutiv e direc tor under § 1 1 4

. 3 1 5 (c ) of thi s title (re l ating to Appro ved T e st M etho d s ) ; ] [( 2 ) the produc er has s ub mitte d an applic ati o n to the Air Po lluti on C ontro l T e chno lo gie s (APCT) C enter, a c enter under the EP

A

’ s Enviro nmental T echno logy V eri c ati o n (ETV) Program , and the EP A

’ s Of  c e o f T ran sp ortati on and Air Qu ality ’ s V o luntary Die s el Retro t Program to pursu e v eric ati on of t hi s altern ative die s el f uel f ormul ati on to demo n strate that it will achieve at le ast a 5

. 7 8 % reduc tio n in NO x emi s s i on s when c omp ared ag ain st a b as e die s el f u el with f uel propertie s within the rang e s as de s cribe d f or nati o nwi de average f uel in EP A

’ s V eri c ati on Protoc o l f or D eterminati o n of Emi s s io n s Reducti o n s Obtaine d by U s e o f Alternativ e or Ref ormul ated Liqui d Fu el s , Fuel Additive s , Fu el Emul s i on s , and Lubric ants f or Hi ghw ay and No nro ad U s e Die s el Eng ine s and Light Duty Ga s oline Eng ine s and V ehicle s (Revi s i on No . 0 3 , S eptemb er 2 00 3 ) ; ] [( 3 ) the produc er ha s a c o ntract wit h the APCT C enter to perf orm t he v eri c ati o n te sting that i s s i gned by b oth p artie s and p ai d in f ull b y S eptember 1 , 2 00 6 ; and] [(4 ) the emi s s i on s te sting as sp eci ed under an ETV te st pl an approv ed b y b oth the APCT C enter and EP A i s c o mp leted b ef ore D ec emb er 1 , 2 00 6

. ] (d) - (f) (No change.) This agency hereby certi  es that the proposal has been reviewed by legal counsel and found to be within the agency ’ s legal authority to adopt. Filed with the Of ce 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 RULEFor 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 DEMONSTRATIONThe 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 certi  ed by EPA to achieve 95% control ef ciency 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 ef ciency. Therefore, exempting facilities that refuel only ORVR-equipped vehicles from the Stage II program will not result in increased VOC emissions.



### 32 T exReg 282 January 26, 2007 Texas RegisterFISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENTJeff 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 ORVRequipment. The amendment is needed because Stage II controls are an unnecessary expense for facilities used exclusivelyfor 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 tohave 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 signi  cant. 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 bene  t anticipated from the changes seen in the proposed rule will be more ef cient control of vehicle refueling emissions with continued protection of public health and the environment. Some minor  scal implications are anticipated for the GeneralMotors 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 timeagency 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 IIvapor 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 facilitiesaffected 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 STATEMENTThe 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 de  nition of a "major environmental rule" as de  ned in the act. A "major environmental rule" is a rule which is speci  cally intended to protect theenvironment or reduce risks to human health from environmental exposure, and that may adversely affect in a material waythe 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 proposedrulemaking 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 bene  t. 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 speci  c regulated activities. Promulgation and enforcement of the proposed amendment would be neither a statutory or constitutional taking of private real property. Speci  cally, 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 andRules Subject to the Coastal Management Program, commission rules governing air pollutant emissions must be consistentwith the applicable goals and policies of the CMP. The commission reviewed this action for consistency with the CMP goals and policies in accordance with the rules of the Coastal CoordinationCouncil, and determined that the action is consistent with the applicable CMP goals and policies. The CMP goal applicable to this rulemaking action is the goal to protect, preserve, and enhance 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 commis

### PROPOSED RULES January 26, 2007 32 TexReg 283sion af rms 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 maypresent 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 Duró n, 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://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 f u el di sp en s ing f acility u s ed exc lu s iv ely f or the f u eling and /or ref ueling of v ehic le s e quippe d w ith o nb o ard ref ueling v ap ory re c ov ery equip ment

. This agency hereby certi  es that the proposal has been reviewed by legal counsel and found to be within the agency ’ s legal authority to adopt. Filed with the Of ce 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 bene ciary designations and payment elections requiring spousal consent. The proposedamendment 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 bene  ciary designation or bene  t 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 T exReg 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 AgencyTelephone: (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 13. 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. 

### Ifthe 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. 80 2 - 0.0004 tons/yr. and O.OOOllbs./hr.

831931-1Henninia 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 115.247, 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.

# ~~ Sincerely, Brandt Mannchen Chair, Air Quality Committee Houston Regional Group of the Sierra Club 5431 Carew Houston, Texas 77096 713-664-5962 brandtshnfbt@juno.com

2UNITED 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 ORVR" 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, OLSEVALUATION OF TESTIMONY

The Texas Commission on Environmental Quality (commission) adopts the amendment to § 115.24 7. 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 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



### 1requirements 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



### 3contaminants 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



### 6assurance 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 RECOMMENDATIONSSUBCHAPTER 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 

# /Jillhas 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. Informulating 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 signi cant, non-federal projects. For the purposes of 40 CFR § 93.121, adoption or approval of a regionally signi cant, 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 signi cant project; (3) action of of  cial 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 certi  es 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 Of ce 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 beingfueled onsite is equipped with onboard refueling vapor recovery (ORVR) equipment, Stage II vapor recovery equipment isan unnecessary expense because refueling emissions are captured via the vehicle ’ s ORVR equipment instead of the StageII 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 laterthan 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 certi  ed 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 makingStage 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 DETERMINATIONThe 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 de nition of a "major environmental rule" as de  ned in the act. A "major environmental rule" is a rule which is speci  cally intended to protect theenvironment 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 4411state or a sector of the state. The intent of this rulemaking action is to provide an exemption from Stage II vapor recoveryrequirements 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 bene t. 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 ASSESSMENTThe 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 doesnot apply to the adopted amendment because this action discontinues Stage II vapor recovery requirements for speci  c regulated activities. Promulgation and enforcement of the proposed amendment would be neither a statutory or constitutional taking of private real property. Speci  cally, 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 andRules Subject to the Coastal Management Program, commission rules governing air pollutant emissions must be consistentwith the applicable goals and policies of the CMP. The commission reviewed this action for consistency with the CMP goals and policies in accordance with the rules of the Coastal CoordinationCouncil, and determined that the action is consistent with the applicable CMP goals and policies. The CMP goal applicable to this rulemaking action is the goal to protect, preserve, and enhance 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 af rms 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 COMMENTSThe 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 areno 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 ORVRsystems 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 identi  es 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 identi  edproblem are not allowed to receive the annual safety and emissions certi  cate unless and until the problem is corrected. Harris County Public Health & Environmental Services (HCPHES) was generally in support of the rule. HCPHESexpressed 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 documen

### 32 T exReg 4412 July 13, 2007 Texas Registertation to ensure that all vehicles in the eet are ORVR equipped.Facilities will also be required to submit a Stage II Vapor Recovery Exemption Con  rmation Form to the TCEQ on a yearly basis. The EPA commented that in general, they were in support of this rulemaking. EPA did request clari  cation on the types ofeets 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 clari  ed 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 thatthe 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 wishingto 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 TCEQCompliance 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 Con  rmation 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 emissionscaused by operating E85 fueling facilities without Stage II controls is so small as to clearly not interfere with attainment of theozone standard or reasonable further progress or any other applicable CAA requirement. RESPONSEThe 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 affectrequirements 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 equippedwith 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. RESPONSEThe 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 4413paragraph on an annual basis no later than January 31 of each year to the executive director or designated representative. This agency hereby certi  es 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 Of ce 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 § 53.14The 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 thatthe 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 maynot 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 andrenewals. 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, thedepartment issued 38 new DMPs and renewed 40 DMPs, incurring expenses of approximately $92,000 to process applications, perform site and facility inspections, observe and enforcecompliance, 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 speci  c rationale for opposing adoption. Those comments, accompanied by the department ’ s responses, follow. Eight commenters stated that the fee increase is unjusti  ed andunfair. The department disagrees with the comments and responds that the fee increase is justi  ed because the departmentmust 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/bene  t 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 usersshould 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 suf cient opportu

### 32 T exReg 4414 July 13, 2007 Texas Register