### Bryan W. Shaw, Ph.D., 

### Chairmnn

Toby Baker

t 

### Commissioner

Zak Q:lvar, 

### Executive Directur 

# RECEIVED- 6POL



# AIR PLANNING SEC.



# 13 NOV**-~** 

# PH 5: 

# o·t

TExAs COMMISSION ON ENVIRONMENTAL QUALI1Y

Protecting Texas by 

### Reducing and Preuenting Pollution



## October 31,2013



## Ron Curry

Regional Administrator

U.S. Environmental Protection Agency- Region 6

1445 Ross Avenue

Dallas, Texas 75202-2733

Dear Mr. Curry: 

## Docket No. 2012-2362-RUL

Rule Project No. 2013-001-115-AI

On October 9, 2013, the Texas Commission on Environmental Quality (Commission) adopted

revisions to the State Implementation Plan (SIP).

The Commission adopted amended Sections 115.240, 115.242- 115.246, new Section 115.241,

and repeal of Sections 115.241, 115.247, and 115.249 of 30 TAC Chapter 115 and

corresponding revisions to the state implementation plan. Additionally, the commission

adopted the withdrawal from the United States Environmental Protection Agency the

previous amendments to Section 115.247, as adopted by the Commission on June 27, 2007, as

a revision to the state implementation plan. The adopted rulemaking revises Chapter 115,

Subchapter C, Division 4 to establish that owners and operators of gasoline dispensing

facilities are no longer required to install Stage II equipment and to require the

decommissioning of Stage II equipment at all gasoline dispensing facilities.

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

record of the public hearing, and the accompanying order. I look forward to your expeditious

approval of these SIP revisions.

Sincerely,

# ~o--~

Bryan W. Shaw, Ph.D.

Chairman

BWS/ts

Enclosures

cc: The Honorable 

# Rick Perry, Governor of Texas

Mr. Nathaniel R. Hickman, Office of Budget, Planning and Policy, Office of the

Governor

Mr. Zak Covar, Executive Director, Texas Commission on Environmental Quality

P.O. Box 13087 • Austin, Texas 78711·3087 • 512·239·1000 • treq.texas.gov



### How is our 

### customer service? tceq.texas.govfcustomersurvey

## TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

THE STATE OF TEXAS

COUNTY OF TRAVIS 

## Docket No. 2012-2362-RUL

Rule Project No. 2013-001-115-AI



## This is to certify that the attached electronic file is included and that the electronic file is a

true and correct copy of documents for a revision to the Texas State Implementation Plan,

adopted on October 9, 2013, 

## pursuant to 40 

## Code of Federal Regulations § 

## 51.104. 

## I am the

records administrator for the Air Quality Division of the Texas Commission on

Environmental Quality (Commission).

# ~r Da\TiBTYiner:Dfrector

Air Quality Division

Texas Commission on Environmental Quality

### Texas Commission on Environmental Quality

Public Hearings

May 28, 30-31 and June 3-4, 2013

Concerning Revisions to 30 T AC,

Stage II Decommissioning Rulemaking

Rule Project No. 2013-001-115-AI

### INTRODUCTION

The Texas Commission on Environmental Quality (commission) scheduled public hearings in El

Paso on May 28, 2013; in Beaumont on May 30, 2013; in Houston on May 31, 2013; in Arlington

on June 3; and in Austin on June 4, 2013, to receive testimony regarding proposed amendments

to 30 Texas Administrative Code Chapter 115, §§115.240, 115.242-115.246; new §115.241; and

repeal of §§115.241, 115.247, and 115.249, and corresponding revisions to the state

implementation plan. The only public hearing that received testimony was in Arlington.

The rulemaking revises the Chapter 115, Subchapter C, Division 4 to specify that new gasoline

dispensing facilities are not required to install Stage II equipment and requires existing gasoline

dispensing facilities in the current program areas to properly decommission existing Stage II

equipment no later than August 31, 2018. Gasoline dispensing facilities electing to retain Stage

II equipment until the mandatory removal date of August 31, 2018 will be required to comply with

current Stage II rules.

The comment period closed on June 10, 2013. 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/Order

### 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 Santos Olivarez at (512)

239-4718.

# NOTICE 

# & 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: 

### April 26, 2013

Beaumont Enterprise: 

### April 26, 2013

El Paso Times: 

### April 26, 2013

Fort Worth Star- Telegram: 

### April 26, 2013

Houston Chronicle: 

### April 26, 2013

2. Publication of the proposed rules in the May 10, 2013 issue of the Texas Register 

### (38 TexReg

2823).

3. Publication of the Notice of Public Hearings in the May 10, 2013 issue of the Texas Register 

### (38

TexReg 2885).

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 Austin, Mayor's Office

City of Beaumont, Major's Office

City of Dallas, Department of Environmental Quality

City of Dallas, Department of Aviation

City of El Paso, Environmental Services

### City of El Paso, Mayor's Office

City of Fort Worth, Environmental Management Department

City of Fort Worth, Mayor's Office

City of Houston, Department of Health and Human Services

City of Houston, Mayor's Office

East Texas Council of Governments

El Paso County Judge

El Paso Metropolitan Planning Organization

Federal Highway Administration

Galveston County Health District

Harris County Judge

Harris County Public Health and Environmental Services

Houston-Galveston Area Council

Jefferson County Judge

North Central Texas Council of Governments

South East Texas Regional Planning Commission

Tarrant County Judge

Texas Department of Transportation

Travis County Judge

Victoria Metropolitan Planning Organization

Arkansas Department of Pollution Control and Ecology

Louisiana Department of Environmental Quality

New Mexico Environmental Department

Oklahoma Department of Environmental Quality

United States Environmental Protection Agency

### Example of Newspaper Classified Ad

Austin American-Statesman, April 26, 2013



### 'TExAs COMivllSSlON ON ENVIRONMENTAL QUAUW

Protecting Texas by Reducing and Preventing Pollution

NOTICE OF PUBLIC HEARINGS ON PROPOSE]) REVJSIONS TO 30 TAC

CHAPTER 115 AND TO THE STK!'E IMPLEl"\AE)'!'T.ATION PLAN

The Texas Commission on Environmental Quality (commissloil) 

### Will conduct public hearings

to recelve testimony regarding proposed amendment& to 30 Texas Administrative Code (TAC)

Chapter 115, §§115.240, 115.242- 115.246; new §115.241; 

# and repeal of §§115.241, 115.247,'

and 115.249, and corresponding revlslons to the state Implementation plan (SIP) under the

requirements of Texas Health a.'1d Saiety Code, §382.o17; Texas Government Code, Chapter 2001,

Subchapter'B; and 40 Code of Federal Regulations §51.102 of the United States Environmental

ProteCtion Agency (EPA) conceming SIPs,

. The proposed rulemaklng would revise Chapter 115, Subchapter C, Division 4 to specify that new gasoline di;;pensjng facilities are not required to install Stage U equipment and require existing

gaso!L'le dispensing facilities in the current program areas to properly decommission existing

Stage ll equipment no laterthan August 31, 2018. Gasoline dispensing facilities electing to r!')taln

Stage ll equipment until the mandatory removal date of August 31, 2018 would be required to

comply with current Stage II rules.

·

The commission 

### wili hold public hearings on this proposal in: E1 Paso, Texas on Tuesday,

May 28, 2013, at the El Paso Public Library, Auclitorlum, located at 501 N. Oregon; Beaumont,

Texas on Thursday, May 30, 2013, at the TCEQ Region 10 Oifice, located at 3870 Eastex. Freeway;

Houston, Texas on Friday, May 31, 2013, at the Houston Galveston Area Council, 2nd floor Room

A, located at 3555 Timmons; in Arlington, Texas on Monday, June 3, 2013,ln the Arlington Clty

Council Chamber, located at 101 W. Abram Street; and in Austin Texas on Tuesday, June 4, 2013,

at the TCEQ Central Office, Bull cling E, Room 201. AU hearings will begln at 2:00p.m. The hearmgs

are stwctured for the receipt of oral or written comments by Interested persons. Individuals

may present oral statements when called upon In order of registration, Open discussion will

not oe permitted during the hearing; however, commission staff members will be available to

discuss the proposal 30 minutes prior to the hearing.

Persons who have special communication or. other accommodation needs who are planning i

to attend the hearlqg should contact Sandy 'Nong, Office of Legal Services at (512) 239-1002.'

Requests should be made as far In advance as possible,

Written comments may be submitted to Bruce McAnally, MC 205, Office of Legal

Services, Texas Co):DIU!ssion 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.texas,govjrulesfecomments/. File size restrictions may**~pply** to

comments being submitted· via the eComments system. All comments should reference

Rule Project Number 2013-001-115-Al. The comment period closes June 10, 2013.

Copies of the proposed rulemaklng can be obtained from the ·commission's Web site at

http://www.tceq_.te:xas.gov/nav/rules/propose_adopt.html. For further lniormatlon, please

contact Santos Olivarez, (512) 239-4718.

## ♦ ♦ ♦ ♦ ♦ ♦ (4) COMPANY: REED OIL CO.; DOCKET NUMBER: 2012-1685-

PST-E; TCEQ ID NUMBER: RN101888410; LOCATION: 615 Main

Street, Byers, Clay County; TYPE OF FACILITY: UST system and

convenience store with retail sales of gasoline; RULES VIOLATED:

TWC, §26.3475(c)(1) and 30 TAC §335.50(b)(1)(A), by failing to

monitor the USTs for releases at a frequency of at least once per

month (not to exceed 35 days between each monitoring); and 30 TAC

§334.10(b), by failing to maintain the required UST records and make

them immediately available for inspection upon request by agency personnel; PENALTY: $3,500; STAFF ATTORNEY: Jacquelyn

Boutwell, Litigation Division, MC 175, (512) 239-5846; REGIONAL

OFFICE: Abilene Regional Office, 1977 Industrial Boulevard, Abilene, Texas 79602-7833, (325) 698-9674.

(5) COMPANY: Sona Stores, Inc. d/b/a Sunshine Grocery and d/b/a

Sunshine Groceries; DOCKET NUMBER: 2012-0315-PST-E; TCEQ

ID NUMBER: RN102478468 and RN102789138; LOCATION: North

side of the intersection of Highway 190 and Farm-to-Market Road

1416, Bon Wier, Newton County (facility 1) and 42338 South Texas

State Highway 87, Deweyville, Newton County (facility 2); TYPE OF

FACILITY: UST systems and two convenience stores with retail sales

of gasoline; RULES VIOLATED: TWC, §26.3475(c)(1) and 30 TAC

§334.50(b)(1)(A), by failing to monitor the USTs at facility 1 for releases at a frequency of at least once every month (not to exceed 35

days between each monitoring); TWC, §26.3475(c)(1) and 30 TAC

§334.50(b)(1)(A), by failing to monitor the USTs at facility 2 for releases at a frequency of at least once every month (not to exceed 35

days between each monitoring); and TWC, §26.3475(a) and 30 TAC

§334.50(b)(2), by failing to provide proper release detection for the piping associated with the UST system at facility 2; PENALTY: $5,133;

STAFF ATTORNEY: Mike Fishburn, Litigation Division, MC 175,

(512) 239-0635; REGIONAL OFFICE: Beaumont Regional Office,

3870 Eastex Freeway, Beaumont, Texas 77703-1830, (409) 898-3838.

TRD-201301692

Kathleen C. Decker

Director, Litigation Division

Texas Commission on Environmental Quality

Filed: April 30, 2013



### Notice of Public Hearings on Proposed Revisions to 30 TAC

Chapter 115 and to the State Implementation Plan

The Texas Commission on Environmental Quality (commission)

will conduct public hearings to receive testimony regarding pro

posed amendments to 30 Texas Administrative Code (TAC) Chapter

115, §§115.240, 115.242 - 115.246; new §115.241; and repeal of

§§115.241, 115.247, and 115.249, and corresponding revisions to

the state implementation plan (SIP) 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) concerning

SIPs.

The proposed rulemaking would revise Chapter 115, Subchapter C,

Division 4 to specify that new gasoline dispensing facilities are not

required to install Stage II equipment and require existing gasoline dis

pensing facilities in the current program areas to properly decommis

sion existing Stage II equipment no later than August 31, 2018. Gaso

line dispensing facilities electing to retain Stage II equipment until the

mandatory removal date of August 31, 2018 would be required to com

ply with current Stage II rules.

The commission will hold public hearings on this proposal in: El Paso,

Texas on Tuesday, May 28, 2013, at the El Paso Public Library, Audi

torium, located at 501 N. Oregon; Beaumont, Texas on Thursday, May

30, 2013, at the TCEQ Region 10 Office, located at 3870 Eastex Free

way; Houston, Texas on Friday, May 31, 2013, at the Houston Galve

ston Area Council, 2nd Floor Room A, located at 3555 Timmons; in

Arlington, Texas on Monday, June 3, 2013, in the Arlington City Coun

cil Chamber, located at 101 W. Abram Street; and in Austin Texas on Tuesday, June 4, 2013, at the TCEQ Central Office, Building E, Room

201. All hearings will begin at 2:00 p.m. The hearings are structured

for the receipt of oral or written comments by interested persons. In

dividuals may present oral statements when called upon in order of

registration. Open discussion will not be permitted during the hearing;

however, commission staff members will be available to discuss the

proposal 30 minutes prior to the hearing.

Persons who have special communication or other accommodation

needs who are planning to attend the hearing should contact Sandy

Wong, Office of Legal Services, at (512) 239-1802. Requests should

be made as far in advance as possible.

Written comments may be submitted to Bruce McAnally, MC

205, Office of Legal Services, Texas Commission on Environmen

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

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

http://www5.tceq.texas.gov/rules/ecomments /. File size restric

tions may apply to comments being submitted via the eComments

system. All comments should reference Rule Project Number

2013-001-115-AI. The comment period closes June 10, 2013. Copies

of the proposed rulemaking can be obtained from the commission's

Web site at http://www.tceq.texas.gov/nav/rules/propose_adopt.html.

For further information, please contact Santos Olivarez, (512)

239-4718.

TRD-201301665

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Filed: April 26, 2013



### Notice of Water Quality Applications

The following notices were issued on April 19, 2013 through April 26,

2013.

The following require the applicants to publish notice in a newspaper.

Public comments, requests for public meetings, or requests for a con

tested case hearing may be submitted to the Office of the Chief Clerk,

Mail Code 105, P.O. Box 13087, Austin, Texas 78711-3087, WITHIN

30 DAYS OF THE DATE OF NEWSPAPER PUBLICATION OF THE

NOTICE.

INFORMATION SECTION

JOHANN HALTERMANN LTD which operates Johann Haltermann

- Jacintoport Facility, a facility that primarily recovers saleable prod

ucts from off-specification petroleum products and solvents by frac

tional distillation and occasionally manufactures organic compounds,

has applied for a major amendment to Texas Pollutant Discharge Elim

ination System (TPDES) Permit No. WQ0002458000 to authorize the

discharge of consisting of sand filter backwash, cooling tower blowdown, and water softener backflush on an intermittent and flow vari

able basis via Outfall 002. The existing permit authorizes the discharge

of treated process wastewater, utility wastewater, domestic wastewater,

and stormwater at a daily average flow not to exceed 220,000 gallons

per day and a daily maximum flow not to exceed 440,000 gallons per day via Outfall 001; stormwater on an intermittent and flow variable

basis via Outfall 002; and non-contact heating water on an intermittent



## IN ADDITION May 10, 2013 38 TexReg 2885

### Bryan W. Shaw, Ph.D., 

### Chairman

Carlos Rubinstein, 

### Commissioner

Toby Baker, 

### Commissioner

Zak Covar, 

### Executive Director



## TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

Protecting Texas by 

### Reducing and Preventing Pollution



### NOTICE OF PUBLIC HEARINGS ON PROPOSED REVISIONS TO 30 TAC

CHAPTER 115 AND TO THE STATE IMPLEMENTATION PLAN

The Texas Commission on Environmental Quality (commission) will conduct public hearings to

receive testimony regarding proposed amendments to 30 Texas Administrative Code (TAC)

Chapter 115, §§115.240, 115.242 -115.246; new §115.241; and repeal of §§115.241, 115.247, and

115.249, and corresponding revisions to the state implementation plan (SIP) 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) concerning SIPs.

The proposed rulemaking would revise Chapter 115, Subchapter C, Division 4 to specify that new gasoline dispensing facilities are not required to install Stage II equipment and require existing

gasoline dispensing facilities in the current program areas to properly decommission existing

Stage II equipment no later than August 31, 2018. Gasoline dispensing facilities electing to

retain Stage II equipment until the mandatory removal date of August 31, 2018 would be

required to comply with current Stage II rules.

The commission will hold public hearings on this proposal in: El Paso, Texas on Tuesday, May

28, 2013, at the El Paso Public Library, Auditorium, located at 501 N. Oregon; Beaumont, Texas

on Thursday, May 30, 2013, at the TCEQ Region 10 

### Office, located at 3870 Eastex Freeway;

Houston, Texas on Friday, May 31, 2013, at the Houston Galveston Area Council, 2nd Floor

Room A, located at 3555 Timmons; in Arlington, Texas on Monday, June 3, 2013, in the

Arlington City Council Chamber, located at 101 W. Abram Street; and in Austin Texas on Tuesday, June 4, 2013, at the TCEQ Central Office, Building E, Room 201. All hearings will

begin at 2:00p.m. The hearings are structured for the receipt of oral or written comments by

interested persons. Individuals may present oral statements when called upon in order of

registration. Open discussion will not be permitted during the hearing; however, commission

staff members will be available to discuss the proposal 30 minutes prior to the hearing.

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

attend the hearing should contact Sandy Wong, Office of Legal Services at (512) 239-1802.

Requests should be made as far in advance as possible.

Written comments may be submitted to Bruce McAnally, 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:/ jwww5.tceq.texas.gov /rules/ ecomments/. File size restrictions may apply to comments

being submitted via the eComments system. All comments should reference Rule Project

Number 2013-001-115-AI. The comment period closes June 10, 2013. Copies of the proposed

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

http:/ /www.tceq.texas.gov /nav jrulesjpropose_adopt.html. For further information, please

contact Santos Olivarez, (512) 239-4718.

P.O. Box 13087 • Austin, Texas 78711-3087 • 512-239-1000 •

How is our customer service? tceq.texas.govjcustomersurvey

printed on recycled paper

## ♦ ♦ ♦ proposed. There will be no effect to individuals required to com

ply with the rule as proposed. There will be no effect on small or

micro-businesses.

Comments on the proposal may be submitted to Sarah Tuthill,

P.O. Box 2018, Austin, Texas 78768-2018 or e-mail comments

to: rules.development@tmb.state.tx.us. A public hearing will be

held at a later date.

The amendments are proposed under the authority of the Texas

Occupations Code Annotated, §153.001, which provides author

ity for the Board to adopt rules and bylaws as necessary to: gov

ern its own proceedings; perform its duties; regulate the practice

of medicine in this state; enforce this subtitle; and establish rules

related to licensure.

The amendments are also authorized by Chapter 773, Health

and Safety Code.

No other statutes, articles or codes are affected by this proposal.

§197.5. Authority for Control of Medical Services at the Scene

[ scene ] of a Medical Emergency.

(a) Control at the scene of a medical [ medial ] emergency shall

be the responsibility of the individual in attendance who is most appro

priately trained and knowledgeable in providing prehospital emergency

stabilization and transport.

(b) - (l) (No change.)

This agency hereby certifies that the proposal has been reviewed

by legal counsel and found to be within the agency's legal author

ity to adopt.

Filed with the Office of the Secretary of State on April 26, 2013.

TRD-201301668

Mari Robinson, J.D.

Executive Director

Texas Medical Board

Earliest possible date of adoption: June 9, 2013

For further information, please call: (512) 305-7016



## TITLE 30. ENVIRONMENTAL QUALITY



# PART 1. TEXAS COMMISSION ON

ENVIRONMENTAL QUALITY

CHAPTER 115. CONTROL OF AIR

POLLUTION FROM VOLATILE ORGANIC

COMPOUNDS

SUBCHAPTER C. VOLATILE ORGANIC

COMPOUND TRANSFER OPERATIONS

DIVISION 4. CONTROL OF VEHICLE

REFUELING EMISSIONS (STAGE II) AT

MOTOR VEHICLE FUEL DISPENSING

FACILITIES

The Texas Commission on Environmental Quality (TCEQ,

commission, or agency) proposes amendments to §§115.240,

115.242 - 115.246; new §115.241; and repeal of §§115.241,

115.247 and 115.249. If adopted, the commission will submit the amendments, new

section, and repeals to the United States Environmental Protec

tion Agency (EPA) as a proposed revision to the State Imple

mentation Plan (SIP).

Background and Summary of the Factual Basis for the Proposed

Rules

Under the Federal Clean Air Act (FCAA) amendments of 1990,

states were required to submit a revision to the SIP no later than

November 15, 1992, that included a Stage II Vapor Recovery

Program to control gasoline vapors from the refueling of motor

vehicles. A Stage II vapor recovery SIP was first approved for

Texas on October 16, 1992, and later revised on November 10,

1993. The Stage II Vapor Recovery Program involves the use

of technology that prevents gasoline vapors from escaping dur

ing refueling. Gasoline vapors are volatile organic compounds

(VOC) that react with nitrogen oxides in the presence of sun

light to form ozone. As part of the control strategy for ozone

attainment, the EPA mandated that Stage II refueling require

ments apply to all public and private gasoline dispensing facili

ties (GDFs) that dispense 10,000 gallons or more of gasoline per

month. The TCEQ applied a more stringent throughput standard

in the 16 ozone nonattainment counties by requiring all GDFs

constructed after November 15, 1992, to install Stage II vapor

recovery regardless of throughput. The original Stage II vapor

recovery rules relied upon the California Air Resources Board

(CARB) certification procedures for vapor recovery equipment.

The Stage II SIP was revised in 2002 to require more frequent

testing and more on-site evaluation of testing performed on va

por recovery systems at GDFs as well as a phase-in schedule to

retrofit or install onboard-refueling vapor-recovery (ORVR) com

patible Stage II vapor recovery systems. Stage II vapor system

efficiency was compromised by ORVR equipped vehicles unless

the system had ORVR compatible hardware. The Stage II SIP

was then revised on March 23, 2005, to offer an expanded def

inition for "ORVR compatible" that allowed for the use of other

technologies for controlling gasoline vapors. On June 27, 2007,

the Stage II SIP was also revised to add language to exempt

facilities from installing Stage II equipment if the facility could

demonstrate that refueling at that facility involved a fleet of 95%

or more ORVR-equipped vehicles. This SIP is still under con

sideration by the EPA and has not been approved. The EPA

expressed concerns that the language justifying the exemption

needed to be more descriptive and explanatory. If this proposed

rulemaking is adopted by the commission and the subsequent

submitted SIP revision is approved by EPA, the commission will

request the withdrawal of the June 27, 2007, pending SIP sub

mittal since revisions to that SIP will no longer be necessary.

FCAA, §202(a)(6) also provides that the EPA may revise or

waive the application of Stage II requirements if the EPA de

termines that ORVR is in widespread use through the motor

vehicle fleet. Recently, the EPA finalized a rulemaking (pub

lished in the May 16, 2012, Federal Register, 77 FR 28772)

for 40 Code of Federal Regulations (CFR) Part 51, determin

ing that vehicle ORVR technology is in widespread use for

the purposes of controlling motor vehicle refueling emissions

throughout the motor vehicle fleet. Vehicle ORVR systems are passive systems that force gasoline vapors displaced from a

vehicle's fuel tank during refueling to be directed into a carbon

canister holding system within the vehicle and ultimately to the

engine where the vapors are consumed. The EPA required

ORVR systems to be phased in beginning with 1998 model-year

light-duty gasoline vehicles and since 2006, all new light- and

medium-duty gasoline vehicles are equipped with ORVR. An



## PROPOSED RULES May 10, 2013 38 TexReg 2823initial analysis using the EPA Motor Vehicle Emissions Simulator

2010a model shows that the benefits from ORVR alone will

be greater than the benefits from Stage II alone by the year

2010 in the Houston-Galveston-Brazoria (HGB) area, 2012 in

the Dallas-Fort Worth (DFW) area, 2013 in the Beaumont-Port

Arthur (BPA) area, and 2014 in the El Paso area. Vehicle ORVR

systems are monitored through a vehicle's on-board diagnostic

system making the system much more cost-effective than the

required monitoring and testing of Stage II systems.

The determination that ORVR technology is in widespread use

allows the EPA to waive the requirement for states to implement

Stage II gasoline vapor recovery systems at GDFs in nonattain

ment areas classified as serious and above for the ozone Na

tional Ambient Air Quality Standard (NAAQS). States that have

implemented a Stage II program may revise their Stage II SIP

demonstrating that the air quality will be maintained after remov

ing the Stage II equipment. The proposed rule revision would

revise Chapter 115, Subchapter C, Division 4 to specify that own

ers of new GDFs are not required to install Stage II equipment

and to require owners of existing GDFs in the current program

areas to properly decommission Stage II equipment. According

to the EPA's guidance document, Guidance on Removing Stage

II Gasoline Vapor Control Programs from State Implementation

Plans and Assessing Comparable Measures, issued on August

7, 2012, the commission will need to demonstrate under FCAA,

§110(l) that the air quality will not be affected by the decommis

sioning of, or failure to install, Stage II equipment. This demon

stration will be incorporated into the corresponding SIP revision

and is discussed further in the Demonstrating Noninterference

under Federal Clean Air Act, Section 110(l) portion of this pre

amble.

Demonstrating Noninterference under Federal Clean Air Act,

Section 110(l)

The Stage II program is a FCAA-specified VOC control strategy

for certain ozone nonattainment areas. Under FCAA, §110(l),

the EPA cannot approve a SIP revision if it would interfere with

attainment of the NAAQS, reasonable further progress toward

attainment, or any other applicable requirement of the FCAA.

The EPA has to approve a SIP revision that removes or mod

ifies Stage II gasoline refueling vapor control measure(s) if the

EPA concludes that a state's submittal provides that the removal

of Stage II controls would not interfere with attainment of the

NAAQS, reasonable further progress, or any other applicable

requirement of the FCAA. The executive director has performed

an assessment of the exact amount of benefit loss from remov

ing Stage II and any effect on air quality programs in the four

Texas Stage II areas using the method documented in the EPA's

Guidance on Removing Stage II Gasoline Vapor Control Pro

grams from State Implementation Plans and Assessing Compa

rable Measures, August 7, 2012. An analysis for years 2012

through 2030 found that for all years the losses represent less

than one-half of one percent of the total VOC inventory. The ben

efit losses for removing Stage II are small in 2012 and decrease

rapidly as the percentage of vehicles equipped with ORVR in

crease over time. The assessment found that small changes to

the VOC inventories due to the removal of Stage II do not signif

icantly change any of the results of the Texas air quality plans.

The detailed analysis to demonstrate that removal of Stage II re

quirements does not interfere with attainment or maintenance of

the NAAQS will be included in the Stage II SIP revision (Project

Number 2013-002-SIP-NR) that corresponds with this rule revi

sion. Section by Section Discussion

§115.240, Stage II Vapor Recovery Definitions and List of Cali

fornia Air Resources Board Certified Stage II Equipment

The commission proposes to amend §115.240 by adding the

definitions for "decommission" and "gasoline dispensing facility."

The term "decommission" would be defined as the permanent

removal of Stage II vapor recovery controls at a GDF. The term

"gasoline dispensing facility" would be defined as a location that

dispenses gasoline to motor vehicles and includes retail outlets

and private and commercial outlets. The definitions in this sec

tion would be re-numbered as needed.

§115.241, Emission Specifications

The commission proposes the repeal of existing §115.241. The

emission specifications in §115.241 would no longer be neces

sary because Stage II equipment would not be required to be

installed at any GDF after the adoption of this proposed rulemaking. This section requires that the transfer of gasoline from

a stationary storage container to a motor vehicle fuel tank be al

lowed only if an approved Stage II vapor recovery system has

been installed at the GDF. Owners of GDFs must maintain their

Stage II equipment according to §115.242, until they complete

decommissioning which ensures that the emissions specifica

tions of this section continue to be met.

§115.241, Decommissioning of Stage II Vapor Recovery Equip

ment

The commission proposes new §115.241 to provide for the time

line and process for decommissioning of Stage II vapor recov

ery controls at GDFs. The new section would establish that the

decommissioning process may begin 30-calendar days after the

EPA approval of the repeal of the Stage II vapor recovery re

quirement and of the decommissioning requirement and the EPA

approval of the revised corresponding SIP revision. The 30-cal

endar day time frame would allow TCEQ regional office staff, li

censed contractors, and owners and operators of GDFs to coor

dinate decommissioning activities in an affected area. The com

mission is proposing this delayed implementation for decommis

sioning because the EPA has stipulated that Stage II controls

cannot be removed until the EPA has approved a State's Stage

II decommissioning rule and SIP revisions.

The new language would include notification requirements and

procedural activities that must occur during the decommission

ing process. Owners and operators of GDFs electing to decom

mission their Stage II vapor recovery would be required to notify

the appropriate TCEQ regional office and local government with

jurisdiction where the GDF is located 30-calendar days prior to

the beginning of the activity. The notification would provide infor

mation on the GDF, the owner or operator of the GDF, the con

tractor who will perform the decommissioning, and the type of

system installed at the GDF. The proposed requirements include

the proper procedures from disconnecting and capping parts of

the system and a list of test procedures to ensure the preven

tion of leaking of vapors and fluids. The TCEQ plans to develop

a checklist, Stage II Decommissioning Checklist and Submittal

Form, that will include all applicable decommissioning require

ments included in this proposed rulemaking that must be per

formed and completed. The proposed requirements were devel

oped using the Decommissioning Stage II Vapor Recovery Pip

ing section in the Petroleum Equipment Institute's (PEI) publica

tion, Recommended Practices for Installation and Testing of Va

por Recovery Systems at Vehicle-Fueling Sites, PEI/RP300-09,

as a reference. PEI's practices are generally accepted and re



## 38 TexReg 2824 May 10, 2013 Texas Registergarded by industry stakeholders as the appropriate methods for

successfully decommissioning the equipment.

The section would also provide new requirements for closing

out all Stage II activities, including decommissioning by the

affected GDF. These requirements would include notification

of completed decommissioning and maintaining the notification

forms that include the names of licensed contractors used in the

decommissioning of Stage II equipment at the GDF.

§115.242, Control Requirements

The commission proposes the revision to §115.242 by provid

ing that owners of newly constructed GDFs after May 16, 2012,

and owners and operators of GDFs, that as of May 16, 2012,

were exempt from installing Stage II vapor recovery due to an exemption from the requirements because of low monthly gaso

line throughput, would no longer have to install Stage II vapor re

covery equipment. Owners and operators of GDFs would have

the option of decommissioning Stage II equipment under the re

quirements proposed in §115.241 of this chapter, or continuing

to operate with the current Stage II equipment until the manda

tory removal date of August 31, 2018. The proposed manda

tory removal date was established after stakeholders expressed

that the commission provide five to six years prior to decommis

sioning to allow for Stage II equipment installed at the time of

the EPA's rule being finalized to be used through its expected

life use. The mandatory date has also been established since

finding compliant replacement equipment will be more difficult

and the number of licensed testers will be reduced which will

make it difficult for owners and operators of GDFs with Stage II

equipment to comply with existing requirements. The TCEQ is

requesting comment on the mandatory decommissioning date of

August 31, 2018.

The proposed language also states that if an owner or operator

elects to retain the Stage II vapor controls, the GDF would con

tinue to meet the requirements of this division, until the Stage II

vapor controls are properly removed from the GDF. To address

the voluntary installation of Stage II equipment at GDFs not lo

cated in the affected counties, new language would be incorpo

rated that would require all owners of GDFs, regardless of loca

tion in the state to remove all Stage II equipment by August 31,

2018. The proposed language would replace existing language

that is being proposed for repeal that requires all GDFs in the

counties listed in §115.249 to comply with this division. This rule

revision proposes that no GDF in any county would have Stage II

equipment installed or operational after August 31, 2018. Volun

tary Stage II installations at GDFs outside of the affected coun

ties have not been included in any modeling for past SIP activ

ities and have no impact on the proposed SIP revision affected

by this rulemaking.

The proposed revisions to §115.242 would also delete para

graphs (10) - (12) because GDFs would no longer need to meet

these requirements. Paragraph (10) corresponds to exemptions

in §115.247 which is also proposed for repeal. Paragraph (11)

relates to the installation of approved systems in the case that

CARB certification of a previously installed system was revoked.

Finally, paragraph (12) requires facilities to notify the regional

office with jurisdiction of any Stage II vapor recovery system

installation.

§115.243, Alternate Control Requirements

The proposed revision to §115.243 would update references to

§115.242, which would be revised to authorize the decommis

sioning of Stage II vapor controls. §115.244, Inspection Requirements

The proposed revision to §115.244 would update references to

§115.242, which would be revised to authorize the decommis

sioning of Stage II vapor controls.

§115.245, Testing Requirements

The commission proposes to amend §115.245 to require owners

of GDFs that elect to install, repair, replace, or retain the Stage

II equipment after the date that decommissioning is authorized,

but before the mandatory removal date, would still be required to

comply with this section, because the Stage II equipment would

continue to be maintained and tested to ensure it is working prop

erly and capturing gasoline vapors.

§246.246, Recordkeeping Requirements

The proposed revision to §115.246 would add the Stage II

decommissioning notifications, records sufficient to demon

strate compliance with decommissioning requirements, and test

results to recordkeeping items that would be maintained on site.

Although other recordkeeping requirements in this subchapter

are only required to be maintained for two years, the high level

of decommissioning activity especially as August 31, 2018,

draws near would require inspections and investigations beyond

a two-year time frame.

§115.247, Exemptions

The commission is proposing to repeal §115.247, because ex

emptions from the Stage II requirements would no longer be ap

plicable to this division. Since Stage II would no longer be re

quired, the exemptions for GDFs that dispense gasoline to air

craft, watercraft, and agricultural equipment; GDFs that began

construction before November 15, 1992, and dispense less than

10,000 gallons a month; and GDFs that refuel a motor fleet that

is 95% ORVR equipped would no longer be needed. The pro

posed language in §115.242(a) makes clear that GDFs that did

not have Stage II vapor controls installed as of May 16, 2012

are not subject to this division. Therefore, GDFs that qualified

for these exemptions would not be subject to the rule by the pro

posed repeal of this exemption section.

§115.249, Counties and Compliance Schedules

The commission is proposing to repeal §115.249, because Stage

II would no longer be required upon EPA approval of the pro

posed SIP revision at GDFs in Brazoria, Chambers, Collin, Dal

las, Denton, El Paso, Fort Bend, Galveston, Harris, Hardin, Jef

ferson, Liberty, Montgomery, Orange, Tarrant, and Waller Coun

ties. Additionally, GDFs in these counties have already met the

compliance date of April 1, 2007, to become ORVR compatible.

Fiscal Note: Costs to State and Local Government

Jeffrey Horvath, Analyst in the Strategic Planning and Assess

ment Section, has determined that for the first five-year period

the proposed rules are in effect, fiscal implications are antici

pated for the agency and for some units of state or local gov

ernment that participate in the Stage II Vapor Recovery Pro

gram in nonattainment areas as a result of the administration

or enforcement of the proposed rules. Cost savings may be sig

nificant for those businesses or local governments that do not

have to install vapor recovery equipment at GDFs that they own

or operate. In addition, beginning in 2018 and perhaps earlier,

the University of Texas at Arlington and four other units of local

government currently under contract with the agency to conduct

Stage II Vapor Recovery Program inspections, monitoring, and

enforcement activities may see reductions in funding if their con

## PROPOSED RULES May 10, 2013 38 TexReg 2825tracts are terminated or modified as a result of the implementa

tion of the proposed rules. Local governments that own or oper

ate GDFs will have some costs to decommission their Stage II

vapor recovery equipment but are expected to experience cost

savings in the long run. The agency is anticipated to experience

cost savings in 2018 and perhaps earlier due to the proposed

elimination of the requirement to inspect certain gasoline vapor

recovery systems installed at GDFs in nonattainment areas.

The Stage II Vapor Recovery Program involves the use of tech

nology that prevents gasoline vapors from escaping during refu

eling. Gasoline vapors are VOC emissions that can react with ni

trogen oxides in the presence of sunlight to form ozone. The EPA

recently finalized a rulemaking that determined that because ve

hicle ORVR technology is in widespread use for the purposes

of controlling motor vehicle refueling emissions, Stage II vapor

recovery systems are no longer necessary at GDFs in nonat

tainment areas. Because of these vehicle systems, the EPA will

allow states to waive the requirement for Stage II vapor recovery

systems to be installed at GDFs in nonattainment areas classi

fied as serious and above for the ozone NAAQS. The EPA will

also require states with a Stage II program to revise their Stage

II SIP to demonstrate that the air quality will be maintained after

the Stage II equipment is decommissioned.

GDFs that do not have to install the Stage II equipment will re

alize a cost savings. Staff estimates that costs for new Stage II

vapor recovery equipment installation would range from $40,000

for a four-dispenser GDF to $120,000 for a 12-dispenser GDF

with $350 to $1,000 in annual maintenance costs.

The proposed rules would require owners of GDFs with Stage

II equipment already in place to decommission the equipment

by August 31, 2018. However, the EPA has stipulated that de

commissioning would not be able to begin until the EPA has ap

proved the proposed rulemaking and SIP revision that autho

rizes the removal of the Stage II equipment. If the proposed

rulemaking is adopted, EPA approval of the revised SIP may not

take place until the beginning of 2015 at the earliest. Owners

of GDFs would be allowed to keep their Stage II equipment un

til August 31, 2018, but would continue to maintain, test, and

monitor the equipment. Owners of GDFs that decide to decom

mission their equipment would be required to submit a notice

to the appropriate TCEQ regional office requesting approval for

decommissioning. The TCEQ regional offices, or the local gov

ernment with jurisdiction, would continue to inspect GDFs with

Stage II equipment and would also inspect and monitor decom

missioning activities at GDFs during the five-year period covered

by this fiscal note.

At this time, certified Stage II vapor recovery systems are re

quired at GDFs in Brazoria, Chambers, Fort Bend, Galveston,

Harris, Liberty, Montgomery, and Waller Counties in the HGB

area; Collin, Dallas, Denton, and Tarrant Counties in the DFW

area; El Paso County; and Hardin, Jefferson, and Orange Coun

ties in the BPA area.

There are an estimated 420 Stage II facilities that are owned by

units of local government (including counties, cities, school dis

tricts, etc.) that would have to comply with the decommissioning

requirements. The costs for removing this equipment will vary

and likely depend upon the number of gasoline dispensers lo

cated at each GDF. However, staff estimates that the one-time

cost would be approximately $600 per gasoline dispenser. The

Stage II equipment is inspected by the agency annually with a

more comprehensive inspection every three years. Staff esti

mates that it costs $250 to $350 each year for a GDF to test the Stage II equipment and $350 every three years for a more comprehensive Stage II equipment test. Staff also estimates an

additional $350 to $1,000 each year in costs for maintenance

and repair of the equipment. Removal of the equipment would

result in a net cost savings for each GDF over the long term but

may represent a cost increase to the facilities over the short term.

Owners of GDFs including local governments may begin decom

missioning their GDFs 30-calendar days after the EPA provides

SIP approval, but they may choose to wait until the proposed

2018 deadline in order to maximize the initial and ongoing cost

of installing and maintaining the equipment.

Four local governments currently perform Stage II enforcement,

inspections, and monitoring activities in their local jurisdictions

through a contract with the TCEQ. The four local governments

are the cities of Dallas, Fort Worth, and El Paso and the Galve

ston County Health District. These particular contracts also in

clude other air pollution investigation activities in addition to the

Stage II investigations. The contracts require the local govern

ment to provide a 33% funding match. The TCEQ also contracts

with the University of Texas at Arlington to perform Stage II in

vestigations in the city of Houston. This contract is for approx

imately $500,000 and does not require a funding match. If the

proposed decommissioning begins, these contracts would need

to be re-evaluated to account for the decrease and eventual elim

ination of the Stage II investigations and associated activities.

Once the Stage II equipment is removed from GDFs, local gov

ernments and the TCEQ would see a cost savings associated

with the costs to monitor and inspect these systems.

Public Benefits and Costs

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

five years the proposed rules are in effect, the public benefit an

ticipated from the changes seen in the proposed rules will be the

continued protection of public health and safety while eliminat

ing unnecessary requirements and maintaining compliance with

federal rules.

The proposed rules are not expected to have fiscal implications

for individuals and businesses during the first five years the pro

posed rules are implemented unless they are constructing new

GDFs or unless they perform Stage II testing for GDFs. For

those owners of GDFs that choose to decommission their Stage

II equipment after EPA approval but before the 2018 deadline,

there would be some costs depending upon the number of gaso

line dispensers at each GDF. There are approximately 282 reg

istered Stage II testers and 61 companies that perform testing

services as part of their operations. Because most of them do

other types of testing and provide other services, they are not

expected to experience significant fiscal impacts as a result of

the proposed rulemaking.

Currently, approved and certified Stage II vapor recovery sys

tems are required at GDFs in Brazoria, Chambers, Fort Bend,

Galveston, Harris, Liberty, Montgomery, and Waller Counties in

the HGB area; Collin, Dallas, Denton, and Tarrant Counties in

the DFW area; El Paso County; and Hardin, Jefferson, and Or

ange Counties in the BPA area. There are approximately 6,600

GDFs in these counties that are required to have Stage II vapor

recovery equipment installed. These owners of GDFs will have

to pay to decommission the Stage II equipment if the proposed

rules are adopted. These costs are estimated to be $600 per dispenser. Total decommissioning costs for each GDF will de

pend upon the number of dispensers at each facility. Over time,

owners of each GDF will experience cost savings because they

will not have to pay testing, inspection, and maintenance and re



## 38 TexReg 2826 May 10, 2013 Texas Registerpair costs. These cost savings for each GDF are not anticipated

to be significant but would be at least $250 to $350 each year for

inspection and testing and $350 to $1,000 in annual cost sav

ings for maintenance and repair. There would be cost savings

for those GDFs that do not have to install the Stage II equipment.

Staff estimates that costs for new Stage II vapor recovery equip

ment installation would range from $40,000 for a four-dispenser

GDF to $120,000 for a 12-dispenser GDF.

Small Business and Micro-Business Assessment

No adverse fiscal implications are anticipated for small or mi

cro-businesses as a result of the administration or enforcement

of the proposed rules. The agency estimates that there are 692

small businesses and 574 micro-businesses that would have to

comply with the proposed rules for decommissioning. Some of

these small and micro-businesses may begin decommissioning

30-calendar days after the EPA provides SIP approval, but they

may choose to wait until the proposed August 31, 2018 deadline

in order to maximize the initial and ongoing cost of installing and

maintaining the equipment. Costs to decommission the Stage II

equipment and cost savings due to the elimination of testing, in

spection, maintenance, and repair costs are the same as those

for large businesses. Cost savings for those small or micro-busi

nesses who install new facilities would also be the same as those

identified for large businesses.

There are approximately 282 registered Stage II testers and 61

companies that perform testing services as part of their opera

tions. It is not known how many of these companies are small

or micro-businesses, but most of them are thought to provide

additional Petroleum Storage Tank/Vapor Recovery-related ser

vices such as line and tank testing, release detection monitoring,

and routine equipment inspections to ensure compliance. While

there is a possibility that some companies may be required to

reduce staff, it is unlikely as most of these companies provide

other services and have been anticipating the change in Vapor

Recovery requirements.

Small Business Regulatory Flexibility Analysis

The commission reviewed this proposed rulemaking and deter

mined that a small business regulatory flexibility analysis is not

required, because the proposed rules do not adversely affect a

small or micro-business in a material way for the first five years

that the proposed rules are in effect.

Local Employment Impact Statement

The commission reviewed this proposed rulemaking and deter

mined that a local employment impact statement is not required,

because the proposed rules do not adversely affect a local econ

omy in a material way for the first five years that the proposed

rules are in effect.

Draft Regulatory Impact Analysis Determination

The commission reviewed the proposed rulemaking in light of the

regulatory impact analysis requirements of Texas Government

Code, §2001.0225, and determined that the proposed rulemak

ing does not meet the definition of a "major environmental rule"

as defined in that statute. A "major environmental rule" means

a rule, the specific intent of which is 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 envi

ronment, or the public health and safety of the state or a sector of

the state. Additionally, the proposed rulemaking does not meet

any of the four applicability criteria for requiring a regulatory im

pact analysis for a major environmental rule, which are listed in

Texas Government Code, §2001.0225(a). Texas Government

Code, §2001.0225, applies only to a major environmental rule,

the result of which is to: 1) exceed a standard set by federal law,

unless the rule is specifically required by state law; 2) exceed an

express requirement of state law, unless the rule is specifically

required by federal law; 3) exceed a requirement of a delega

tion agreement or contract between the state and an agency or representative of the federal government to implement a state

and federal program; or 4) adopt a rule solely under the general

powers of the agency instead of under a specific state law.

The proposed rulemaking would amend §§115.240, 115.242

- 115.246, create new §115.241, and repeal §§115.241, 115.247,

and 115.249. The revisions to Chapter 115 would specify that

new GDFs are not required to install Stage II equipment and

to allow existing GDFs in the current program areas to properly

decommission Stage II equipment.

FCAA, §182(b)(3) provides that for certain nonattainment areas,

states must revise their SIP to require all owners or operators of

gasoline dispensing systems operating after November 15, 1990

to install a system for gasoline vapor recovery of emissions from

the fueling of motor vehicles. FCAA, §202(a)(6) requires the

EPA to implement requirements for ORVR. Both Stage II and

vehicle ORVR are types of emission control systems that cap

ture fuel vapors from vehicle gas tanks during refueling. FCAA,

§202(a)(6) also provides that the EPA may revise or waive the

application of Stage II requirements if it determined that ORVR

was in widespread use throughout the motor vehicle fleet. The

EPA finalized a rulemaking on May 16, 2012 (Federal Regis

ter, 77 FR 28772) for 40 CFR Part 51, determining that vehicle

ORVR technology is in widespread use for the purposes of con

trolling motor vehicle refueling emissions throughout the motor

vehicle fleet. This action allows the EPA to waive the require

ment for states to implement Stage II gasoline vapor recovery

systems at GDFs in nonattainment areas classified as serious

and above for the ozone NAAQS.

The proposed rulemaking implements requirements of 42 United

States Code (USC), §7410, which requires states to adopt a SIP

that provides for the implementation, maintenance, and enforce

ment of the NAAQS in each air quality control region of the state.

While 42 USC, §7410 generally does not require specific pro

grams, methods, or reductions in order to meet the standard,

the SIP must include enforceable emission limitations and other

control measures, means, or techniques (including economic in

centives such as fees, marketable permits, and auctions of emis

sions rights), as well as schedules and timetables for compliance

as may be necessary or appropriate to meet the applicable re

quirements of this chapter (42 USC, Chapter 85). The provi

sions of the FCAA recognize that states are in the best posi

tion to determine what programs and controls are necessary or appropriate in order to meet the NAAQS. This flexibility allows

states, affected industry, and the public, to collaborate on the

best methods for attaining the NAAQS for the specific regions in

the state. Even though the FCAA allows states to develop their

own programs, this flexibility does not relieve a state from devel

oping a program that meets the requirements of 42 USC, §7410.

States are not free to ignore the requirements of 42 USC, §7410,

and must develop programs to assure that their contributions to

nonattainment areas are reduced so that these areas can be

brought into attainment on schedule.

The proposed rulemaking will implement the EPA's rulemaking

that was published May 16, 2012 (Federal Register, 77 FR



## PROPOSED RULES May 10, 2013 38 TexReg 282728772) for 40 CFR Part 51, determining that vehicle ORVR

technology is in widespread use for the purposes of controlling

motor vehicle refueling emissions throughout the motor vehicle

fleet and waiving the requirement for states to implement Stage

II gasoline vapor recovery systems at GDFs in nonattainment

areas classified as serious and above for the ozone NAAQS.

Revisions to Chapter 115 specifying that owners of new GDFs

are not required to install Stage II equipment and to allow ex

isting owners of GDFs in the current program areas to properly

decommission Stage II equipment is a necessary and required

component of developing the SIP for nonattainment areas as required by 42 USC, §7410.

The requirement to provide a fiscal analysis of proposed regu

lations in the Texas Government Code was amended by Sen

ate Bill (SB) 633 during the 75th Legislature, 1997. The intent

of SB 633 was to require agencies to conduct a regulatory im

pact analysis of extraordinary rules. These rules are identified

in the statutory language as major environmental rules that will

have a material adverse impact and will exceed a requirement

of state law, federal law, or a delegated federal program, or are adopted solely under the general powers of the agency. With

the understanding that this requirement would seldom apply, the

commission provided a cost estimate for SB 633 concluding that

"based on an assessment of rules adopted by the agency in the

past, it is not anticipated that the bill will have significant fiscal

implications for the agency due to its limited application." The

commission also noted that the number of rules that would re

quire assessment under the provisions of the bill was not large.

This conclusion was based, in part, on the criteria set forth in the

bill that exempted proposed rules from the full analysis unless

the rule was a major environmental rule that exceeds a federal

law.

As discussed earlier in this preamble, the FCAA does not al

ways require specific programs, methods, or reductions in or

der to meet the NAAQS; thus, states must develop programs

for each area contributing to nonattainment to help ensure that

those areas will meet the attainment deadlines. Because of the

ongoing need to address nonattainment issues and to meet the

requirements of 42 USC, §7410, the commission routinely pro

poses and adopts SIP rules. The legislature is presumed to un

derstand this federal scheme. If each rule proposed for inclusion

in the SIP was considered to be a major environmental rule that

exceeds federal law, then every SIP rule would require the full

regulatory impact analysis contemplated by SB 633. This con

clusion is inconsistent with the conclusions reached by the com

mission in its cost estimate and by the Legislative Budget Board

(LBB) in its fiscal notes. Since the legislature is presumed to

understand the fiscal impacts of the bills it passes and that pre

sumption is based on information provided by state agencies and

the LBB, the commission believes that the intent of SB 633 was only to require the full regulatory impact analysis for rules that are extraordinary in nature. While the SIP rules will have a broad im

pact, the impact is no greater than is necessary or appropriate

to meet the requirements of the FCAA. For these reasons, rules

adopted for inclusion in the SIP fall under the exception in Texas

Government Code, §2001.0225(a) because they are required by

federal law.

The commission has consistently applied this construction to its

rules since this statute was enacted in 1997. Since that time,

the legislature has revised the Texas Government Code but left

this provision substantially un-amended. It is presumed that

"when an agency interpretation is in effect at the time the legisla

ture amends the laws without making substantial change in the statute, the legislature is deemed to have accepted the agency's

interpretation." Central Power & Light Co. v. Sharp, 919 S.W.2d

485, 489 (Tex. App. Austin 1995), writ denied with per curiam

opinion respecting another issue, 960 S.W.2d 617 (Tex. 1997);

Bullock v. Marathon Oil Co., 798 S.W.2d 353, 357 (Tex. App.

Austin 1990, no writ). Cf. Humble Oil & Refining Co. v. Calvert,

414 S.W.2d 172 (Tex. 1967); Dudney v. State Farm Mut. Auto

Ins. Co., 9 S.W.3d 884, 893 (Tex. App. Austin 2000); South

western Life Ins. Co. v. Montemayor, 24 S.W.3d 581 (Tex. App.

Austin 2000, pet. denied); and Coastal Indust. Water Auth. v. Trinity Portland Cement Div., 563 S.W.2d 916 (Tex. 1978).

The commission's interpretation of the regulatory impact anal

ysis requirements is also supported by a change made to the

Texas Administrative Procedure Act (APA) by the legislature in

1999. In an attempt to limit the number of rule challenges based

upon APA requirements, the legislature clarified that state agen

cies are required to meet these sections of the APA against the

standard of "substantial compliance." The legislature specifically

identified Texas Government Code, §2001.0225, as falling under

this standard. The commission has substantially complied with

the requirements of Texas Government Code, §2001.0225.

The specific intent of the proposed rulemaking would allow own

ers of new GDFs not to install Stage II equipment and allow own

ers of existing GDFs in the current program areas to properly

decommission Stage II equipment. The EPA may grant the re

moval and waiver of Stage II equipment due to the widespread

use of ORVR in the overall vehicle fleet. The proposed rules

would permit these changes to occur in Texas. As explained

previously in this preamble, vehicles equipped with ORVR tech

nology provide greater pollution reduction benefits than Stage

II control systems and are more cost-effective. The proposed

rulemaking does not exceed a standard set by federal law or ex

ceed an express requirement of state law. No contract or del

egation agreement covers the topic that is the subject of this

proposed rulemaking. Therefore, this proposed rulemaking is

not subject to the regulatory analysis provisions of Texas Gov

ernment Code, §2001.0225(b) because although the proposed

rulemaking meets the definition of a "major environmental rule,"

it does not meet any of the four applicability criteria for a major

environmental rule.

The commission invites public comment regarding the draft reg

ulatory impact analysis determination during the public comment

period. Written comments on the draft regulatory impact analy

sis determination may be submitted to the contact person at the

address listed under the Submittal of Comments section of this

preamble.

Takings Impact Assessment

The commission evaluated the proposed rulemaking and per

formed an assessment of whether Texas Government Code,

Chapter 2007 is applicable. The specific purpose of the pro

posed rulemaking is to specifying that new GDFs are not

required to install Stage II equipment and to allow existing GDFs

in the current program areas to properly decommission Stage

II equipment as required by 42 USC, §7410. FCAA, §182(b)(3)

provides that for certain nonattainment areas, states must revise

their SIP to require all owners or operators of GDFs operating

after November 15, 1990, to install a system for gasoline vapor

recovery of emissions from the fueling of motor vehicles. FCAA,

§202(a)(6) also required the EPA to implement requirements

for vehicle ORVR. Both Stage II and vehicle ORVR are types of

emission control systems that capture fuel vapors from vehicle

gas tanks during refueling. FCAA, §202(a)(6) also provided



## 38 TexReg 2828 May 10, 2013 Texas Registerthat the EPA may revise or waive the application of Stage II

requirements if it determined that ORVR was in widespread use throughout the motor vehicle fleet.

The EPA finalized a rulemaking on May 16, 2012 (Federal Reg

ister, 77 FR 28772), for 40 CFR Part 51, determining that vehicle

ORVR technology is in widespread use for the purposes of con

trolling motor vehicle refueling emissions throughout the motor

vehicle fleet. This action allows the EPA to waive the require

ment for states to implement Stage II gasoline vapor recovery

systems at GDFs in nonattainment areas classified as serious

and above for the ozone NAAQS. The EPA may grant the re

moval and waiver of Stage II equipment due to the widespread

use of ORVR in the overall vehicle fleet. The proposed rulemaking and corresponding SIP would permit these changes to

occur in Texas. As explained previously in the preamble, vehi

cles equipped with ORVR technology provide greater pollution

reduction benefits than Stage II control systems and are more

cost-effective. Texas Government Code, §2007.003(b)(4), pro

vides that Texas Government Code, Chapter 2007 does not ap

ply to this proposed rulemaking because it is an action reason

ably taken to fulfill an obligation mandated by federal law.

In addition, the commission's assessment indicates that Texas

Government Code, Chapter 2007 does not apply to these pro

posed rules because this action is taken in response to a real

and substantial threat to public health and safety; that is de

signed to significantly advance the health and safety purpose;

and that does not impose a greater burden than is necessary to

achieve the health and safety purpose. Thus, this action is ex

empt under Texas Government Code, §2007.003(b)(13). The

proposed rules fulfill the FCAA requirement to decommission

Stage II equipment in nonattainment areas. These revisions will

result in VOC emission reductions in ozone nonattainment ar

eas, which may contribute to the timely attainment of the ozone

standard and reduced public exposure to VOC emissions. Con

sequently, the proposed rulemaking meets the exemption crite

ria in Texas Government Code, §2007.003(b)(4) and (13). For

these reasons, Texas Government Code, Chapter 2007 does not

apply to this proposed rulemaking.

Consistency with the Coastal Management Program

The commission reviewed the proposed rulemaking and found

the proposal is a rulemaking identified in the Coastal Coordi

nation Act Implementation Rules, 31 TAC §505.11(b)(2) or (4),

relating to rules subject to the Coastal Management Program,

and will, therefore, require that goals and policies of the Texas

Coastal Management Program (CMP) be considered during the

rulemaking process. 31 TAC §505.11(b)(2) applies only to air

pollutant emissions, on-site sewage disposal systems, and un

derground storage tanks. 31 TAC §505.11(b)(4) applies to all

other actions.

The commission reviewed this rulemaking for consistency with

the CMP goals and policies in accordance with the regulations

of the Coastal Coordination Council Advisory Committee and de

termined that the revisions are consistent with CMP goals and

policies, because the rulemaking is a fee rule, which is a proce

dural mechanism for paying for commission programs; will not

have direct or significant adverse effect on any coastal natural

resource areas; will not have a substantive effect on commission

actions subject to the CMP; and promulgation and enforcement

of the revisions will not violate (exceed) any standards identified

in the applicable CMP goals and policies. Written comments on the consistency of this rulemaking may be

submitted to the contact person at the address listed under the

submittal of comments section of this preamble.

Effect on Sites Subject to the Federal Operating Permits Pro

gram

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

The commission will hold public hearings on this proposal in El

Paso on May 28, 2013, at 2:00 p.m., El Paso Public Library Audi

torium, 501 N. Oregon; Beaumont at 2:00 p.m. on May 30, 2013,

Texas Commission on Environmental Quality Region 10 Office,

3870 Eastex Freeway; Houston at 2:00 p.m., Houston-Galve

ston Area Council, 3555 Timmons, 2nd Floor, Room A on May

31, 2013; Arlington at 2:00 p.m. on June 3, 2013, Arlington City

Council Chamber, 101 West Abram; Austin at 2:00 p.m. on June

4, 2013, Texas Commission on Environmental Quality, 12100

Park 35 Circle, Building E, Room 201S. The hearings are struc

tured for the receipt of oral or written comments by interested

persons. Individuals may present oral statements when called

upon in order of registration. Open discussion will not be per

mitted during the hearings; however, commission staff members

will be available to discuss the proposal 30 minutes prior to each

hearing.

Persons who have special communication or other accommodation needs who are planning to attend a hearing should contact

Sandy Wong, Office of Legal Services, at (512) 239-1802. Requests should be made as far in advance as possible.

Submittal of Comments

Comments may be submitted to Bruce McAnally, 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://www5.tceq.texas.gov/rules/ecomments/.

File size restrictions may apply to comments being submitted

via the eComments system. All comments should refer

ence Rule Project Number 2013-001-115-AI. The comment

period closes June 10, 2013. Copies of the proposed rulemaking can be obtained from the commission's website at

http://www.tceq.texas.gov/nav/rules/propose_adopt.html

. For

further information, please contact Santos Olivarez, Air Quality

Planning Section, (512) 239-4718.



### 30 TAC §§115.240 - 115.246

Statutory Authority

The amendments and new section are proposed under Texas

Water Code (TWC), §5.102, concerning General Powers, that

provides the commission with the general powers to carry out

its duties; TWC, §5.103, concerning Rules, that authorizes the

commission to adopt rules necessary to carry out its powers and

duties; TWC, §5.105, concerning General Policy, that authorizes

the commission by rule to establish and approve all general pol

icy of the commission; and under Texas Health and Safety Code

(THSC), §382.017, concerning Rules, that authorizes the com

## PROPOSED RULES May 10, 2013 38 TexReg 2829mission to adopt rules consistent with the policy and purposes

of the Texas Clean Air Act.

The amendments are also proposed under THSC, §382.002,

concerning Policy and Purpose, that establishes the commis

sion'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, that

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

§382.012, concerning State Air Control Plan, that authorizes the

commission to prepare and develop a general, comprehensive

plan for the proper control of the state's air; and §382.208, con

cerning 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 new section is also proposed under THSC, §382.016,

concerning Monitoring Requirements; Examination of Records,

that authorizes the commission to prescribe reasonable re

quirements for the measuring and monitoring of air contaminant

emissions. The new section is also proposed under THSC,

§382.019, concerning methods used to control and reduce

emissions from land vehicles, 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 Standard (NAAQS) or upon a determination that it is

necessary to protect public health. The new section is also

proposed under FCAA, 42 USC, §§7401, et seq., which requires

states to submit SIP revisions that specify the manner in which

the NAAQS will be achieved and maintained within each air

quality control region of the state.

The amendments and new section implement THSC,

§§382.002, 382.011, 382.012, 382.016, 382.017, 382.208 and

FCAA,

§115.240. Stage II V apor Recovery Definitions and List of California

Air Resources Board Certified Stage II Equipment.

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

have the following meanings, unless the context clearly indicates otherwise. Additional definitions for terms used in this division are found

in §§115.10, 101.1, and 3.2 of this title (relating to Definitions).

(1) Decommission--The permanent removal of the Stage II

vapor control equipment at a gasoline dispensing facility.

(2) Gasoline dispensing facility--A location that dispenses

gasoline to motor vehicles and includes retail, private, and commercial

outlets.

(3) [(1)] Major system replacement or modification:

(A) the repair or replacement of any stationary storage

tank equipped with a Stage II vapor recovery system;

(B) the replacement of an existing California Air Resources Board (CARB) certified Stage II vapor recovery system with

a system certified by CARB under a different CARB Executive Order,

or certified by an approved third-party;

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

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

vapor recovery system, excluding the repair or replacement of piping

which is accessible for such repair or replacement without excavation

or modification of the vapor recovery equipment; or

(D) the replacement of at least one fuel dispenser. 42 USC, §§7401 et seq. (4) [(2)] Onboard refueling vapor recovery--A system on

motor vehicles designed to recover hydrocarbon vapors that escape during refueling.

(5) [(3)] Onboard refueling vapor recovery compatible--A

Stage II vapor recovery system certified by CARB or other acceptable

independent third-party evaluator, using test methods approved by the

executive director, as onboard refueling vapor recovery (ORVR) compatible or a system listed in subsection (b) of this section, either of

which maintains a required minimum overall system efficiency of 95%

(as certified under third-party evaluation) while dispensing fuel without

difficulty to both ORVR-equipped and non ORVR-equipped vehicles.

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

gasoline [motor vehicle fuel] dispensing facility.

(b) The table contained in this subsection is a list of the Stage II

vapor recovery systems certified by a CARB Executive Order in effect

as of January 1, 2002.

Figure: 30 TAC §115.240(b) (No change.)

§115.241. Decommissioning of Stage II Vapor Recovery Equipment.

(a) The owner or operator of a gasoline dispensing facility may

decommission Stage II vapor recovery equipment beginning 30-calendar days after the United States Environmental Protection Agency's

approval of the repeal of the Stage II vapor recovery requirement and

decommissioning requirements.

(b) Owners or operators of gasoline dispensing facilities de

commissioning Stage II vapor recovery equipment shall comply with

the following.

(1) The owner or operator shall submit written notification

of decommissioning of the Stage II vapor recovery equipment at least

30-calendar days prior to the beginning of the activity to the appropriate

Texas Commission on Environmental Quality (TCEQ) regional office

and local government with jurisdiction where the gasoline dispensing

facility is located.

(2) The owner or operator shall notify by either telephone,

e-mail, or facsimile, the appropriate TCEQ regional office and local

government with jurisdiction where the gasoline dispensing facility is

located 24 to 72 hours prior to the beginning of decommissioning.

(3) The owner or operator shall provide with the written

notification:

(A) dispensing facility name and location address;

(B) owner name, address, and phone number;

(C) operator name, address, and phone number;

(D) contractor name, address, phone number, and Un

derground Storage Contractor License number; and

(E) Stage II vapor recovery system information.

(4) The owner or operator shall perform and complete all

of the following decommissioning activities, as applicable:

(A) initiating safety procedures;

(B) relieving pressure in the tank ullage by removing all

pressure/vacuum vent valves;

(C) draining all liquid collection points;

(D) disconnecting all electrical components of the

Stage II system so that no electrical hazards are created including but

not limited to all vapor pumping or processing units and dispenser

electronics;



## 38 TexReg 2830 May 10, 2013 Texas Register(E) reprogramming the dispenser electronics to reflect

that Stage II Vapor Recovery is no longer in service;

(F) securely sealing off the below-grade vapor piping at

a height below the level of the base of the dispenser using only threaded

plugs, threaded caps, or glued fittings;

(G) disconnecting and sealing off the vapor piping at

the tank top if this can be done without excavation and without interfering with the vent line using only threaded plugs, threaded caps, or glue fittings;

(H) securely sealing the lower end of the vapor piping

inside the dispenser cabinet using only threaded plugs, threaded caps,

or glue fittings;

(I) replacing the Stage II hanging hardware with conventional, industry-standard hanging hardware;

(J) installing appropriate pressure/vacuum vent

valve(s);

(K) removing any Stage II instructions from the dispenser cabinet;

(L) visually inspecting and verifying that the visible

components of the storage system are left in a condition that will reliably prevent the release of any vapors or liquids from any components

of the storage system;

(M) conducting the Texas test procedures TXP-102

(Vapor Recovery Test Procedures Handbook, RG-399, November

2002) and recording results on Form 102 indicating that the storage

system is in a condition that will prevent leaking of vapors or liquids

prior to restoring the facility to operating status;

(N) conducting the Texas test procedures TXP-103,

Procedure 2, (Vapor Recovery Test Procedures Hand Book, RG-399,

November 2002) recording results on Form 103 indicating that the

vent lines are functioning in a condition that will prevent the leaking

of vapors or liquids prior to restoring the facility to operating status;

(O) disconnecting the OPW VaporSavor or Arid Perme

ater vapor recovery systems if they are present on the Stage II system

and sealing piping using only threaded plugs, threaded caps, or glue

fittings; and

(P) disconnecting the central vacuum motor if present

on the Stage II system and sealing piping using only threaded plugs,

threaded caps, or glue fittings.

(5) The owner or operator shall notify the TCEQ regional

office and local government with jurisdiction where the gasoline dis

pensing facility is located no later than ten calendar days after comple

tion of decommissioning. Notification must include:

(A) a certified and signed document with the name, ad

dress, and license number of the licensed contractor who performed the

decommissioning;

(B) name, address, and license number of the licensed

contractor who performed the testing to ensure that no leaks have been

detected; and

(C) copies of all required test results including the

TX-102 and TX-103 tests.

(c) Owners or operators of all gasoline dispensing facilities,

regardless of location in the state, shall have completed the decommis

sioning of all Stage II vapor recovery control equipment no later than

August 31, 2018.

§115.242. Control Requirements. (a) After May 16, 2012, the owner or operator of a newly con

structed gasoline dispensing facility is no longer required to install

Stage II vapor controls on its gasoline dispensing equipment in any

county in the state of Texas. Gasoline dispensing facilities that did not

have Stage II vapor controls as of May 16, 2012 due to a confirmed ex

emption because of low monthly throughput or low average monthly

throughput are not subject to the requirements of this division.

(b) The owner or operator of every gasoline dispensing facility

that has installed Stage II vapor controls shall complete decommission

ing of Stage II vapor controls no later than August 31, 2018.

(c) All owners or operators of gasoline dispensing facilities

decommissioning installed Stage II vapor controls shall comply with

the requirements of §115.241 of this title (relating to Decommissioning

of Stage II Vapor Recovery Equipment).

(d) Until the owner or operator of a gasoline dispensing facility

decommissions Stage II vapor recovery controls that are installed at the

gasoline dispensing facility, the owner or operator shall be subject to

the following requirements of this section as well as the requirements of

this division. [For all persons in the counties listed in §115.249 of this

title (relating to Counties and Compliance Schedules) and affected by

this division (relating to Control of Vehicle Refueling Emissions (Stage

II) at Motor Vehicle Fuel Dispensing Facilities), a vapor recovery system will be assumed to comply with the specified emission limitation

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

(1) All installed [The facility is equipped with a] Stage II

vapor recovery systems must be [system] certified by a California Air

Resources Board (CARB) Executive Order in effect as of January 1,

2002 (as specified in §115.240(b) of this title (relating to Stage II Vapor

Recovery Definitions and List of California Air Resources Board Certified Stage II Equipment)); or certified by a CARB Executive Order in

effect after January 1, 2002, except that the executive director reserves

the right to continue to recognize any CARB Executive Orders decertified after January 1, 2002; or certified by an alternative procedure that

[which] meets the requirements specified in §115.243 of this title (relating to Alternate Control Requirements). In addition:

(A) Stage II vapor recovery balance systems that

[which] include vapor check valves in a location other than the nozzle

may not be installed;

(B) Stage II vapor recovery systems that [which] include dual-hang (non-coaxial) hoses may not be installed; and

(C) all Stage II vapor recovery systems must be onboard

refueling vapor recovery (ORVR) compatible, as defined in §115.240

of this title [in accordance with the schedules in §115.249 of this title].

(2) All underground piping must be installed by a person holding a valid License A as defined in §§334.401, 334.407, and

334.424 of this title (relating to License and Registration Required;

Other Requirements for an Underground Storage Tank Contractor; and

Other Requirements for an On-Site Supervisor). Piping specifications

must be in compliance with the applicable CARB Executive Order(s)

or third-party certification for the Stage II vapor recovery system. For

any facility newly constructed after November 15, 1993, or at any facility undergoing a major modification to the Stage II vapor recovery

system after November 15, 1993, the following requirements apply

where piping specifications are not provided in the applicable CARB

Executive Order(s) or third-party certification.

(A) All underground piping must be constructed of

rigid material and conform to the applicable portions of the technical

standards for new piping defined by §334.45(c) and (e) of this title



## PROPOSED RULES May 10, 2013 38 TexReg 2831(relating to Technical Standards for New Underground Storage Tank

Systems).

(B) Noncorrodible piping or cathodically protected

metallic piping must be used. In the event metallic piping is used,

the applicable portions of the general requirements for corrosion

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

(relating to Corrosion Protection) apply.

(C) Minimum slope on vapor piping must be 1/8 inch

per foot from the dispenser to the storage tank. Piping installed after

January 1, 2002 must not include liquid collection points (condensate

traps) unless the associated underground storage tanks:

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

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

slope requirements.

(D) Vapor piping on balance systems must be two

inches or greater in diameter, and when there are more than four

fueling points connected to one vapor line, the minimum vapor piping size must be three inches in diameter. For the purposes of this

paragraph, a single nozzle dispenser constitutes one fueling point and

a multi-nozzle dispenser constitutes two fueling points.

(E) Riser piping must have a minimum inside diameter

of one inch and must slope towards the storage tank at all points. Riser

piping is defined as the predominantly vertically oriented vapor recovery piping that enters the gasoline dispenser base, which connects the

dispenser mounted piping with the buried vapor recovery piping that

leads to one or more storage tanks.

(F) If a fire protection agency with jurisdiction requires

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

the shear valve must be CARB-certified and/or Underwriters Laboratories listed for use in vapor recovery systems.

(3) The owner or operator shall maintain the Stage II vapor recovery system in proper operating condition, as specified by the

manufacturer and/or any applicable CARB Executive Order(s) or thirdparty certification, and free of defects that would impair the effectiveness of the system, including, but not limited to:

(A) absence or disconnection of any component that is

a part of the approved system;

(B) a vapor hose that is crimped or flattened such that

the vapor passage is blocked, or the backpressure through the vapor

system exceeds the value as certified in the approved system's CARB

Executive Order(s) or third-party certification;

(C) a nozzle boot that is torn in one or more of the following ways:

(i) a triangular-shaped or similar tear more than 1/2

inch on a side;

(ii) a hole more than 1/2 inch in diameter; or

(iii) a slit more than one inch in length;

(D) for balance nozzles, a faceplate that is damaged

such that the capability to achieve a seal with a fill pipe interface is

affected for a total of at least one-fourth of the circumference of the

faceplate;

(E) for booted nozzles in vacuum assist type systems,

a flexible cone for which a total of at least one-fourth of the cone is

damaged or missing;

(F) a nozzle shut-off mechanism that malfunctions in

any manner; (G) vapor return lines, including such components as

swivels, anti-recirculation valves, and underground piping, that malfunction, are blocked, or are restricted such that the pressure decay

and/or dynamic backpressure through the line exceeds the value as certified in the approved system's CARB Executive Order(s) or third-party

certification;

(H) a vapor processing or control unit that is inoperative

or defective;

(I) a vacuum producing device that is inoperative or defective;

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

or Stage I dry breaks that are inoperative or defective;

(K) a system monitor or printer that is malfunctioning

or out of paper;

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

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

use; and

(M) any equipment defect that is identified in the certification of an approved system as substantially impairing the effectiveness of the system in reducing refueling vapor emissions.

(4) No gasoline leaks, as detected by sampling, sight,

sound, or smell, exist anywhere in the dispensing equipment or Stage

II vapor recovery system.

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

paragraphs (3) and (4) of this subsection [section], the owner or operator or his or her representative shall remove from service all dispensing

equipment for which vapor recovery has been impaired. The impaired

equipment must remain out of service until such time as the equipment

has been properly repaired, replaced, or adjusted, as necessary. Once

repaired, the equipment may be returned to service by the owner or operator or his or her representative.

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

paragraphs (3) and (4) of this subsection [section], any inspector with

jurisdiction shall tag the impaired equipment out-of-order. The "Outof-Order" tag must state "use of this device is prohibited under state

law, and unauthorized removal of this tag or use of this equipment will

constitute a violation of the law punishable by a maximum civil penalty

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

and/or up to 180 days in jail." The impaired equipment must remain

out of service until such time as the equipment has been properly repaired, replaced, or adjusted, as necessary. After repairs are completed

and verbal notification is given to the agency that originally tagged the

equipment out of service, the "Out-of-Order" tag may be removed by

the owner or operator or the facility representative and the equipment

may be returned to service. Within ten days of placing the equipment

back in service, written notification that the equipment has been returned to service must be provided by the owner or operator or the facility representative to the agency that originally tagged the equipment

out-of-service. For the purposes of this paragraph, "facility representative" has the meaning ascribed to it in §115.248(1) of this title (relating

to Training Requirements).

(7) No person shall repair, modify, or permit the repair or

modification of the Stage II vapor recovery system or its components

such that they are different from their approved configuration, and only

original equipment manufacturer (OEM) parts or CARB-certified nonOEM aftermarket parts shall be used as replacement parts.

(8) No person shall tamper with, or permit tampering with,

any part of the Stage II vapor recovery system in a manner that would

impair the operation or effectiveness of the system.



## 38 TexReg 2832 May 10, 2013 Texas Register(9) The owner or operator of a gasoline [motor vehicle fuel]

dispensing facility shall post operating instructions conspicuously on

the front of each gasoline dispensing pump equipped with a Stage II

vapor recovery system. These instructions, at a minimum, include:

(A) a clear description of how to correctly dispense

gasoline using the system; and

(B) a warning against attempting to continue to refuel

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

[(10) Any motor vehicle fuel dispensing facility that does

not meet an exemption in §115.247 of this title (relating to Exemptions)

shall have 120 days to come into compliance with the provisions of this

division and will remain subject to the provisions of this division even

if its gasoline throughput later falls below throughput limits, except

that:]

[(A) at a facility exempted under §115.247(2) of this title for which an exceedance occurred between January 1, 1991, and

November 15, 1992, the owner or operator may petition the executive

director to permit a continuance of the facility's exempt status provided

that the average monthly throughput calculated from January 1, 1991,

to November 15, 1992, remained below 10,000 gallons. If exempt sta

tus is continued by the executive director, the annual verification of

exempt status as required in §115.247(2) of this title must be fulfilled;

and]

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

tle for which an exceedance occurred for any consecutive 30-day pe

riod due to an emergency condition or natural disaster after November

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

permit the continuance of the facility's exempt status or extended com

pliance schedule status. If exempt status is continued by the executive

director, the requirement of annual verification of the status as stated

in §115.247(2) of this title must be fulfilled.]

[(11) Any facility having installed Stage II vapor recovery system(s) or component(s) previously certified by CARB via an Ex

ecutive Order, for which certification was revoked by CARB, prior to

January 1, 2002, must install and have operational an approved sys

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

as soon as practicable, but no later than September 1, 2006.]

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

provide written notification of any Stage II vapor recovery system in

stallation to the appropriate regional office and any local air pollution

program with jurisdiction at least 30 days prior to start of construction.

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

[(A) facility name, location (physical and mailing ad

dress); name, address, and phone number of owner(s) and operator(s);

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

phone number of contractor(s); and the Petroleum Storage Tank Facil

ity ID number and Owner ID number (if known);]

[(B) proposed start date; and]

[(C) type of Stage II system to be installed, including

CARB Executive Order number(s) or third-party certification num

ber(s) and the number of gasoline nozzles at the facility.]

§115.243. Alternate Control Requirements.

Alternate methods of complying with §115.242(d)(1) [ §115.242(1) ] of

this title (relating to Control Requirements) may be approved by the

executive director if: (1) emission reductions are demonstrated to be equivalent

or greater than those afforded by the requirements in §115.242(d)(1)

[§115.242(1)] of this title; and

(2) the Stage II vapor recovery system is capable of meeting the applicable performance requirements prescribed in this division

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

Vehicle Fuel Dispensing Facilities),] as certified by third-party evaluation conducted by a qualified independent testing organization using a

code or standard of practice, acceptable to the executive director, which

has been developed by a nationally recognized agency, association, or independent testing laboratory.

§115.244. Inspection Requirements.

The owner or operator of any gasoline [motor vehicle fuel] dispensing

facility subject to the control requirements of this division [(relating

to Control of Vehicle Refueling Emissions (Stage II) at Motor Vehicle

Fuel Dispensing Facilities)] shall conduct daily inspections of the Stage

II vapor recovery system for the defects specified in §115.242(d)(3) and

(4) [§115.242(3) and (4)] of this title (relating to Control Requirements)

as follows.

(1) For all systems, the daily inspections must [shall] include the applicable portions of §115.242(d)(3)(A) - (F), (H), and (K),

and (4) [§115.242(3)(A) - (F), (H), and (K), and (4)] of this title.

(2) For assist systems that use a processor, indicating

mechanisms designed by the Stage II vapor recovery equipment manufacturer to verify proper operation must [shall] be inspected daily.

Examples of these indicating mechanisms include flame detection

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

Executive Order for the system.

(3) For all systems, the components listed in

§115.242(d)(3)(J) [§115.242(3)(J)] of this title must [shall] be

inspected at least monthly.

(4) For all systems, the components listed in

§115.242(d)(3)(G) [§115.242(3)(G)] of this title must [shall] be

inspected at least annually.

§115.245. Testing Requirements.

For owners or operators of gasoline dispensing facilities that have not

yet decommissioned Stage II vapor controls and must repair, replace,

or retain Stage II vapor controls up to the decommissioning deadline

of August 31, 2018, compliance with §115.242 of this title (relating to

Control Requirements) must be determined at the gasoline dispensing

facility as follows. [For all affected persons, compliance with §115.241

and §115.242 of this title (relating to Emission Specifications and Control Requirements) shall be determined at each gasoline dispensing facility by testing as follows.]

(1) Within 30 days of installation, at least once every 36

months thereafter, and upon major system replacement or modification, Stage II vapor recovery systems must successfully meet the performance criteria proper to the system by successfully completing the

following testing requirements using the test procedures as found in the

commission's Vapor Recovery Test Procedures Handbook (test procedures handbook) (RG-399, November 2002).

(A) For balance and assist systems:

(i) the manifolding or interconnectivity of the vapor

space must be consistent with the Executive Order or third-party certification requirements for the installed system (Texas test procedure

TXP-101 or equivalent);



## PROPOSED RULES May 10, 2013 38 TexReg 2833(ii) the sum of the vapor leaks in the system must

not exceed acceptable limits for the system as defined in the pressure decay test (Texas test procedure TXP-102 or equivalent);

(iii) the maximum acceptable backpressure through

a given vapor path must not exceed the limits as found in the backpressure/liquid blockage test applicable for the vapor path for the system

(Texas test procedure TXP-103 or equivalent); and

(iv) the maximum gasoline flow rate through the

nozzle must not exceed the limits found in the Executive Order or third-party certification for the system (Texas test procedure TXP-104

or equivalent).

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

acceptable limits (Texas test procedure TXP-106 or equivalent).

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

Resources Board (CARB) Executive Order or third-party certification.

The criteria and test methods contained in the test procedures handbook specified in paragraph (1) of this section must take precedence

for applicable tests where performance criteria exist in both the Executive Order and the test procedures handbook; otherwise, the Executive

Order specific criteria must take precedence.

(2) Verification of proper operation of the Stage II equipment must be performed in accordance with the test procedures referenced in paragraph (1) of this section at least once every 12 months.

The verification must include all functional tests that were required for

the initial system test, except for TXP-101, Determination of Vapor

Space Manifolding of Vapor Recovery Systems at Gasoline Dispensing

Facilities, and TXP-103, Determination of Dynamic Pressure Performance (Dynamic Back-Pressure) of Vapor Recovery Systems at Gasoline Dispensing Facilities, which must be performed at least once every

36 months.

(3) The owner or operator, or his or her representative, shall

provide written notification to the appropriate regional office and any

local air pollution program with jurisdiction of the testing date and time

and of whom will conduct the test. The notification must be received

by the appropriate regional office and any local air pollution program

with jurisdiction at least ten working days in advance of the test, and

the notification must contain the information and be in the format as

found in the test procedures handbook. Notification may take the form

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

received by the appropriate regional office and any local air pollution

program with jurisdiction at least ten working days prior to the test and

it is followed up within two weeks of the transmission with a written

notification. The owner or operator, or his or her representative, shall

give at least 24-hour notification to the appropriate regional office and

any local air pollution program with jurisdiction if a scheduled test is

cancelled. In the event that the test cancellation is not anticipated prior

to 24 hours before the scheduled test, the owner or operator, or his or

her representative, shall notify the appropriate regional office and any

local air pollution program with jurisdiction as soon in advance of the

scheduled test as is practicable.

(4) Minor modifications of these test methods may only be

used if they have been approved by the executive director.

(5) All required tests must be conducted either in the presence of a Texas Commission on Environmental Quality or local program inspector with jurisdiction, or by a person who is registered with

the executive director to conduct Stage II vapor recovery tests. The requirement to be registered must [shall] begin on November 15, 1993,

or 60 days after the executive director has established the registry, whichever occurs later. The executive director may remove an individual from the registry of testers for any of the following causes:

(A) the executive director can demonstrate that the individual has failed to conduct the test(s) properly in at least three separate

instances; or

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

(6) The owner or operator, or his or her representative, shall

submit the results of all tests required by this section to the appropriate

regional office and any local air pollution control program with jurisdiction within ten working days of the completion of the test(s) using

the format specified in the test procedures handbook. For purposes of

on-site recordkeeping, the Test Procedures Results Cover Sheet, properly completed with the summary of the testing, is acceptable. The

detailed results from each test conducted along with a properly completed summary sheet, as provided for in the test procedures handbook,

must be submitted to the appropriate regional office and any local air

pollution control program with jurisdiction.

§115.246. Recordkeeping Requirements.

The owner or operator of any gasoline [motor vehicle fuel] dispensing

facility subject to the control requirements of this division [(relating

to Control of Vehicle Refueling Emissions (Stage II) at Motor Vehicle

Fuel Dispensing Facilities)] shall maintain the following records:

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

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

recovery system and any related components installed at the facility;

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

director approval under §115.243 of this title (relating to Alternate Control Requirements) and any executive director approval issued under

§115.243 of this title;

(3) a record of any maintenance conducted on any part of

the Stage II equipment, including a general part description, the date

and time the equipment was taken out of service, the date of repair or replacement, the replacement part manufacturer's information, a general description of the part location in the system (e.g., pump or nozzle

number, etc.), and a description of the problem;

(4) proof of attendance and completion of the training specified in §115.248 of this title (relating to Training Requirements), with

the documentation of all Stage II training for each employee to be maintained as long as that employee continues to work at the facility;

(5) a record of the results of testing conducted at the

gasoline [motor vehicle fuel] dispensing facility in accordance with

the provisions specified in §115.245 of this title (relating to Testing

Requirements);

(6) a record of the results of the daily inspections conducted

at the gasoline [motor vehicle fuel] dispensing facility in accordance

with the provisions specified in §115.244 of this title (relating to Inspection Requirements); [and]

(7) copies of all notifications and records sufficient to

demonstrate compliance with the applicable decommissioning steps

listed in §115.241 of this title (relating to Decommissioning of Stage

II Vapor Recovery Equipment), including all required test results, kept

on site for five years following the completion of the decommissioning

activity; and

(8) [(7)] the CARB Executive Order(s) or third party certification(s) specified in paragraph (1) of this section, any applicable alternate method of control requirement approval specified in paragraph

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



## 38 TexReg 2834 May 10, 2013 Texas Register

## ♦ ♦ ♦ ♦ ♦ ♦ section be kept on site indefinitely. Records of all maintenance conducted on Stage II equipment specified in paragraph (3) of this section,

proof of attendance and completion of training as specified in paragraph

(4) of this section, and records of daily inspections as specified in paragraph (6) of this section must be maintained for at least two years. Decommissioning records in paragraph (7) of this section must be maintained for at least five years. [all records shall be maintained for at least

two years, except that the CARB Executive Order(s) or third-party certification(s) specified in paragraph (1) of this section, any applicable alternate method of control requirement approval specified in paragraph

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

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

(A) kept on site [on-site] at facilities ordinarily manned

during business hours[,] and made immediately available for review

upon request by authorized representatives of the executive director,

United States Environmental Protection Agency (EPA) [EPA] or any

local air pollution control program with jurisdiction; or

(B) for gasoline dispensing facilities unmanned at the

time of inspection, made available at the site within 48 hours after being

requested by authorized representatives of the executive director, EPA,

or any local air pollution control program with jurisdiction.

This agency hereby certifies that the proposal has been reviewed

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

Filed with the Office of the Secretary of State on April 26, 2013.

TRD-201301663

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: June 9, 2013

For further information, please call: (512) 239-2141



### 30 TAC §§115.241, 115.247, 115.249

(Editor's note: The text of the following sections proposed for repeal

will not be published. The sections may be examined in the offices of the

Texas Commission on Environmental Quality or in the Texas Register

office, James Earl Rudder Building, 1019 Brazos Street, Austin, Texas.)

Statutory Authority

The repealed sections are 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 un

der the Texas Health and Safety Code (THSC), §382.017, con

cerning Rules, which authorizes the commission to adopt rules

consistent with the policy and purposes of the Texas Clean Air

Act. The repealed sections are also proposed under THSC,

§382.002, concerning Policy and Purpose, which establishes

the commission's purpose to safeguard the state's air resources,

consistent with the protection of public health, general welfare,

and physical property; §382.011, concerning General Powers

and Duties, which authorizes the commission to control the qual

ity of the state's air; §382.012, concerning State Air Control Plan,

which authorizes the commission to prepare and develop a gen

eral, 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 repealed sections implement THSC, §§382.002, 382.011,

382.012, 382.016, 382.017, 382.208 and FCAA, 42 USC,

§§7401 et seq.

§115.241. Emission Specifications.

§115.247. Exemptions.

§115.249. Counties and Compliance Schedules.

This agency hereby certifies that the proposal has been reviewed

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

Filed with the Office of the Secretary of State on April 26, 2013.

TRD-201301664

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: June 9, 2013

For further information, please call: (512) 239-2141



## TITLE 34. PUBLIC FINANCE



# PART 1. COMPTROLLER OF PUBLIC

ACCOUNTS

CHAPTER 3. TAX ADMINISTRATION

SUBCHAPTER O. STATE SALES AND USE

TAX

34 TAC §3.282

The Comptroller of Public Accounts proposes an amendment to

§3.282, concerning auditing taxpayer records. This section is

amended to implement provisions of House Bill 3319, 80th Leg

islature, 2007, and Senate Bill 1, 82nd Legislature, First Called

Session, 2011.

House Bill 3319, 80th Legislature, 2007, repealed Tax Code,

§151.0232, relating to the CPA audit program. To implement this

statute, subsections (a)(1) and (g) of the current rule are deleted,

and the following subsections are relettered accordingly.

Subsection (f)(7) is amended to add a cross-reference to §3.325

of this title (relating to Refunds and Payments Under Protest).

Subsection (i), formerly subsection (j), is amended to implement

Senate Bill 1, 82nd Legislature, First Called Session, 2011, and

state that a taxpayer claiming a refund or credit is required to

keep contemporaneous documentation to substantiate the re

fund or credit for a minimum of four years and longer in some

circumstances.

John Heleman, Chief Revenue Estimator, has determined that

for the first five-year period the rule will be in effect, there will

be no significant revenue impact on the state or units of local

government.

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

five years the rule is in effect, the public benefit anticipated as a

result of enforcing the rule will be by clarifying for taxpayers the

agency's auditing policy. This rule is proposed under Tax Code,



## PROPOSED RULES May 10, 2013 38 TexReg 2835

# TESTIMONY

# The Testimony in this submittal is exactly the same as the

Testimony in the accompanying Texas Revisions to the

Stage II Vapor Recovery Program State Implementation

Plan submitted to EPA October 31, 2013 in this docket

and is not included in this document.

# EVALUATION

# Texas Commission on Environmental Quality

Interoffice Memorandum

To: Commissioners

Thru: Bridget C. Bohac, Chief Clerk

Zak Covar, Executive Director

From: Steve Hagle, P.E., Deputy Director, Office of Air

Docket No.: 2012-2362-RUL

Subject: Commission Approval for Adopted Rulemaking Date: September 20, 2013

Chapter 115, Control of Air Pollution from Volatile Organic Compounds

Stage II Decommissioning

Rule Project No. 2013-001-115-AI



## Background and reasons for the rulemaking:

In the May 16, 2012 issue of the 

## Federal Register (77 FR 28772), the United States

Environmental Protection Agency (EPA) finalized a rule making for 40 Code of Federal

Regulations (CFR) Part 51 determining that vehicle on-board refueling vapor recovery

(ORVR) technology is in widespread use for the purposes of controlling motor vehicle

refueling emissions throughout the motor vehicle fleet. This action allows the EPA to waive

the requirement for states to implement Stage II gasoline vapor recovery systems at

gasoline dispensing facilities (GDF) in nonattainment areas classified as moderate and

above for the ozone National Ambient Air Quality Standard (NAAQS). States that have

implemented a Stage II program may revise their Stage II State Implementation Plan (SIP)

showing that the air quality will be maintained after removing the Stage II equipment.

Vehicle ORVR provides greater pollution reduction than Stage II control systems. Given

the widespread use of ORVR, the use of Stage II control systems is not cost-effective. Stage

II, a volatile organic compounds (VOC) control strategy, is a requirement of Federal Clean

Air Act (FCAA), §182(b)(3) that requires the installation of technology at GDFs to prevent

gasoline vapors from escaping during the refueling of on-road motor vehicles. Currently,

the Stage II program is required in Brazoria, Chambers, Fort Bend, Galveston, Harris,

Liberty, Montgomery, and Waller Counties in the Houston-Galveston-Brazoria (HGB) onehour ozone nonattainment area; Collin, Dallas, Denton, and Tarrant Counties in the

Dallas-Fort Worth (DFW) one-hour ozone nonattainment area; El Paso County (ELP) onehour nonattainment area; and Hardin, Jefferson, and Orange Counties in the BeaumontPort Arthur (BP A) one-hour nonattainment area.

Vehicle ORVR systems are passive systems that force gasoline vapors displaced from a

vehicle's fuel tank during refueling to be directed into a carbon-canister holding system

within the vehicle and ultimately to the engine where the vapors are consumed. The EPA

required ORVR systems to be phased in beginning with 1998 model-year light duty

gasoline vehicles and since 2006, all new light and medium duty gasoline vehicles are equipped with ORVR.

## Commissioners

Page 2

September 20, 2013

Re: Docket No. 2012-2362-RUL

As 

## originally required by the FCAA, 30 Texas Administrative Code (TAC) Chapter 115,

Subchapter C, Division 4 requires all owners or operators of GDFs to install Stage II vapor

recovery equipment unless construction began prior to November 15, 1992 and the GDF

has a monthly throughput ofless than 10,000 gallons of gasoline. Owners or operators of

GDFs are exempt from Stage II requirements when 95% or more of the motor vehicle fleet

being fueled on site is equipped with ORVR equipment or if no gasoline is dispensed to onroad vehicles.



## Scope of the rulemaking:

The rule revision proposed for adoption revises Chapter 115, Subchapter C, Division 4 to

specify that owners or operators of new GDFs are not required to install Stage II

equipment and to allow existing GDFs in the current program areas to properly

decommission Stage II equipment. Owners and operators of GDFs will be authorized to

begin removing the Stage II equipment 30 calendar days after the effective date of EPA's

approval of the adopted rules and corresponding SIP revision or may continue with the

program until August 31, 2018 when all Stage II equipment must be properly

decommissioned. The adopted rule revision provides procedures for owners and operators

of GDFs to notify the Texas Commission on Environmental Quality (TCEQ or commission)

of their intent to begin decommissioning activities, applicable decommissioning activities

that must be completed, and recordkeeping requirements.

A corresponding SIP revision is being adopted with this rulemaking to incorporate the rule

revisions to the Stage II program (SIP Project No.2013-002-SIP-NR). Upon the adoption

of this rule revision, both the revised rule and SIP revision will be submitted to the EPA for

approval. According to the EPA's guidance documenti for decommissioning Stage II, it is

necessary for the executive director to demonstrate under FCAA, §uo(l) 

## that air quality is

not affected by the decommissioning of, or failure to install, Stage II equipment. An



## assessment has been performed of the exact amount ofbenefit loss from removing Stage II

and any effect on air quality programs in the four Texas ozone air quality planning areas using the method documented in the EPA's guidance document. It 

## was found that removal

of Stage II requirements does not interfere with attainment or maintenance of the NAAQS

in the Texas air quality plans. A more detailed analysis is included in the corresponding

Stage II SIP revision.

On June 27, 2007, the commission adopted changes to 30 TAC Chapter 115 to add

language exempting facilities from installing Stage II equipment if the facility could

demonstrate that refueling at the facility involved a fleet of 95% or more ORVR-equipped

vehicles. This rule change was submitted as a SIP revision with no change to the Stage II

SIP narrative. The June 27, 2007 rule change is still under consideration by the EPA and

has not been approved. The EPA expressed concerns that the language justifying the

exemption needed to be more descriptive and explanatory. If 

## the rule is revision proposed

1 

### EPA, 2012. 

### "Guidance on Removing Stage II Gasoline Vapor Control Programs from State Implementation

Plans and Assessing Comparable Measures." Air Quality Policy Division, Office of Transportation and Air

Quality, United States Environmental Protection Agency,EPA-457 jB-12-001, 

### August 7, 2012.

## Commissioners

Page3

September 20, 2013

Re: Docket No. 2012-2362-RUL

for adoption concerning decommissioning is adopted by the commission, the commission

will concurrently request withdrawal of the June 27, 2007 rule change regarding

exemptions for facilities that can demonstrate ORVR-equipped vehicle fleets that is

currently pending EPA review.



## A.) Summary of what the rulemaking will 

## do:

This rulemaking revises Chapter 115, Subchapter C, Division 4 to amend §§115.240,

115.242- 115.246, to add new §115.241, and to repeal §§115.241, 115.247, and 115.249.

This rulemaking will:

• add definitions for "decommissioning" and "gasoline dispensing facilities";

• establish that owners and operators of GDFs are no longer required to install Stage

II equipment after the rule is adopted and the corresponding SIP revision has been

approved by the EPA;

• require owners and operators of GDFs electing to continue with Stage II equipment

after the proposed rulemaking is adopted and corresponding SIP revision is

approved by the EPA to continue complying with current requirements of Chapter

115;

• require the decommissioning of Stage II equipment at all GDFs by August 31, 2018;

• establish decommissioning notification and recordkeeping requirements that must

be performed and completed; and

• repeal emissions specifications associated with the fueling of vehicles at GDFs,

exemptions from the installation of Stage II equipment, and Stage II compliance

schedules for affected counties.



## B.) Scope required by 

## federal regulations or state statutes:

None



## C.) Additional staff recommendations that are not 

## required by 

## federal rule or

state statute:

None



## Statutory authority:

The revisions are adopted under Texas Water Code (TWC), §5.102, concerning General

Powers, that provides the commission with the general powers to carry out its duties under

the Texas Water Code; TWC, §5.103, concerning Rules, that authorizes the commission to

adopt rules necessary to carry out its powers and duties under the Texas Water Code;

TWC, §5.105, concerning General Policy, that authorizes the commission by rule to

establish and approve all general policy of the commission; and under Texas Health and

Safety Code (THSC), §382.017, concerning Rules, that authorizes the commission to adopt

rules consistent with the policy and purposes of the Texas Clean Air Act. The revisions are

also adopted under THSC, §382.002, concerning Policy and Purpose, that 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

## Commissioners

Page4

September 20, 2013

Re: Docket No. 2012-2362-RUL

Powers and Duties, that authorizes the commission to control the quality of the state's air;

§382.012, concerning State Air Control Plan, that authorizes the commission to prepare

and develop a general, comprehensive plan for the proper control of the state's air; and

§382.208, concerning Attainment Program, that 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 revisions are also adopted under THSC §382.016, concerning

Monitoring Requirements; Examination of Records, that authorizes the commission to

prescribe reasonable requirements for the measuring and monitoring of air contaminant

emissions. The revisions are also adopted under FCAA, 42 USC, §§7401, 

## et seq., that

requires states to submit SIP revisions that specify the manner in which the NAAQS will be

achieved and maintained within each air quality control region of the state.

The adopted revisions would implement THSC, §§382.002, 382.011, 382.012, 382.016,

382.017,382.208 and FCAA, 42 USC, §§7401 

## et seq.

Effect on the:

A.) Regulated community:

The adopted rule revision will affect current owners of the GDFs and licensed contractors

who install, uninstall, test, and monitor the Stage II equipment. Removal of the Stage II

equipment will cost the owners of the GDFs approximately $6oo per gasoline dispenser

with total costs depending on the number of gasoline dispensers at the GDF. Owners of

GDFs that remove the Stage II equipment as soon as authorized may realize a positive

impact from no longer having to monitor and test the equipment. Testing costs range from

$250 to $350 for annual inspections and around $350 for a more comprehensive test

required once every three years. Stage II equipment is deteriorating at older GDFs that

have participated in the program for the past 20 years, and the cost to maintain and repair

Stage II equipment may average up to $1,000 per year. Businesses that manufacturer, sell,

monitor, and test the Stage II equipment may be negatively impacted due to Stage II being

decommissioned and monitoring no longer being necessary.



## B.) Public:

No direct impact is anticipated.



## C.) Agency programs:

The TCEQ's Office of Compliance and Enforcement's (OCE) Field Operations Division

employs its own Stage II investigators and contracts with five local government entities to

monitor and inspect Stage II equipment and installations. These same programs will be

needed to monitor the decommissioning activities but workloads for Stage II activities will

decrease as owners or operators of GDFs decommission their equipment.

## Commissioners

Pages

September 20, 2013

Re: Docket No. 2012-2362-RUL



## Stakeholder meetings:

Informal stakeholder meetings on the widespread use determination of ORVR and

potential Stage II decommissioning issues were held in October 2012 in Arlington, El Paso,

Houston, Beaumont, and Austin. The stakeholders consisted of industry representatives

including installers and testers, owners and operators of GDFs, and local governments with

Stage II inspection and monitoring programs funded through contracts with the TCEQ.

Stakeholders generally offered acknowledgement that ORVR was in widespread use and

offered support of a decommissioning process that could begin as soon as possible and was

consistent with industry-recommended procedures.



## Public comment:

The commission offered public hearings for the revisions to Chapter 115, Subchapter C,

Division 4 and the concurrent revision to the Stage II SIP (SIP Project No.2013-002-SIPNR) in: El Paso on May 28, 2013; Beaumont on May 30, 2013; Houston on May 31, 2013;

Arlington on June 3, 2013; and Austin on June 4, 2013. Notice of the public hearings were published in the 

## Texas Register and the 

## El Paso Times, Beaumont Enterprise, Houston

Chronicle, Fort Worth Star Telegram, andAustinAmerican Statesman newspapers. The

Arlington public hearing was opened to receive comment from Tarrant County. No other

hearings were opened as no one signed in to provide oral testimony at any other hearing.

The public comment period opened on May 10, 

## 2013 and closed on June 10, 2013. The

commission received comments from Arid Technologies, Buc-cee's Ltd. (Buc-ee's), Tarrant

County, Texas Chemical Council (TCC), Texas Food and Fuel Association (TFFA), and

Texas Oil and Gas Association (TXOGA). A summary of both oral and written comments as

well as the TCEQ's responses are provided as part of the rule preamble in the Response to

Comments section. Significant public comments are summarized as follows.

General Comments

Arid Technologies opposed the rule change, questioned whether the commission had

considered all impacts of decommissioning, and suggested that enhancing Stage II systems

is a better alternative to decommissioning. Arid Technologies included in its comment a

copy of a recent study conducted by Meszler Engineering and submitted to the Maryland

Department of Environment, which reviews the impact of removing Stage II vapor control

equipment. 

## The commission reviewed the study proved by Arid Technologies and

determined substantial differences between the Maryland assessment and Texas specific

data. Ajurther explanation of the commission'sfindings are in the Response to

Comments section of this rulemaking.

Decommissioning Requirements

TFF A stated that once a Stage II system has been removed records related to the

decommissioned system are not necessary to maintain and suggested amending §115.246,



## Control Requirements to clarify recordkeeping requirements. 

## In response to this comment

the commission revised the proposal language by placing proposed §115.246(1)-(7)



## requirements under a new subsection (a). The records retention schedule and availability

## Commissioners

Page 6

September 20, 2013

Re: Docket No. 2012-2362-RUL



## requirements proposed as §115.246(8) are now adopted under a new subsection (b). The

records specified under subsection (a)(1), (2), and (5) are existing records that were required to be maintained indefinitely but will now be required to be kept for five years following completion of decommissioning. The records specified in §115.246( a)(3),( 4),

and ( 6) are existing records that will continue to be maintained for two years as they are

related to events that will cease once decommissioning has been completed.

Buc-ee's asked if the notification required by §115.241(b)(1) may be submitted prior to the

30 calendar day window between the EPA approval of the Stage II decommissioning rule

and the effective date? The commenter also asked if there is effectively a minimum 6o-day

waiting period from the date of EPA approval before decommissioning activities may

commence? 

## In response to this comment, the commission changed language in

§115.241( a) to make clear that owners and operators could begin decommissioning

activities 30 calendar days after the effective date of EPA's approval.

TCC and TXOGA commented that proposed §115.241(b)(5)(A) states that notification after

decommissioning must include "a certified and signed document with the name, address,

and license number of the licensed contractor who performed the decommissioning," and

requested clarification on the licensing credentials of the contractor required by this rule.



## In response to this comment, the commission made a change to the proposed rule

clarifying the licensing credentials of the on-site supervisor contracted to oversee the

decommissioning.

Decommissioning Process

Buc-ee's questioned the time frame for when the various requirements of

§115.241(b)(4)(A)-(P) should be completed. 

## In response to this comment, the commission

revised §115.241 to require that all decommissioning activity at a specific GDF location be

completed within 30-calendar days after the date decommissioning activity was

initiated.



## Significant changes from proposal:

§115.241, Decommissioning of Stage II Vapor Recovery Equipment

• Added §115.241(a)(1)(B) to clarify that owners or operators of GDFs will include in

the notice of intent to decommission a projected start date for decommissioning

activities. If 

## decommissioning activities are not initiated within 180 calendar days

after the date the notice of intent to decommission is received by the TCEQ, the

owner or operator of the GDF must re-file the notice of intent to decommission for

the GDF location.

• Added §115.241(a)(1)(C) to clarify that owners or operators of GDFs will include in

the notice of intent to decommission identifying information about the facility, the

Stage II equipment to be decommissioned, and the on-site supervisor responsible

for overseeing the decommissioning process.

• Added §115.241(a)(2)(A)

- (D) to specify that the owner or operator will provide

notification 24 to 72 hours prior to the beginning of decommissioning activity and

## Commissioners

Page7

September 20, 2013

Re: Docket No. 2012-2362-RUL

that the notification will include identifying information about the facility and the

planned decommissioning start date.

• Added §115.241(a)(4)(A)-(C) to specify that the owner or operator will include in the

decommissioning completion notification identifying information about the facility.

• Amended §115.241(a)(4)(D)-(F) to specify that decommissioning activities must be

directed by a Class A or Class A/B licensed on-site supervisor.

• Added §115.241(c)(1) to specify that all decommissioning activity must be completed

within 30 calendar days after the date decommissioning activity was initiated.

§115.246, Recordkeeping Requirements

• Added §115.246(b)(1) to specify that certain records relating to the decommissioned

Stage II equipment must be maintained at the GDF for five years following

completion of decommissioning.



## Potential controversial concerns and 

## legislative interest:

The TCEQ must demonstrate to the EPA that removing Stage II equipment does not

interfere with attainment and maintenance with the ozone NAAQS. 

## An FCAA, §no(l)

demonstration has been developed establishing that the loss ofVOC reductions from the

decommissioning of Stage II equipment will not have a negative effect on air quality. The

EPA requires that Stage II remain in effect for a period of time in order to maintain the

ozone NAAQS in the current program areas until an FCAA, §no(l) can be demonstrated.

According to the EPA guidance document mentioned previously in this document, states

must continue implementing Stage II until the EPA approves a SIP revision that removes

the requirement from the SIP. As stated in its guidance, the EPA may take up to 18 months

to review and approve the SIP revision once it is adopted by the commission. However, in

response to concerns expressed by some owners and operators of GDFs who have stated

they prefer to decommission their Stage II equipment as soon as possible, the EPA has

agreed to a parallel review of this rule and corresponding SIP revision.

In addition, this rule revision affects businesses that operate testing and repair services for

Stage II equipment.



## Will this rulemaking affect any current policies or require development of

new policies?

Staff has identified two separate pressure tests related to Stage I components that would

no longer be required once Stage II vapor recovery equipment is decommissioned. A

separate rulemaking requiring these tests has been initiated to offset the loss of this

requirement due to this rulemaking. Additionally, if the rule revision proposed for

adoption concerning decommissioning is adopted by the commission, the commission will

concurrently request withdrawal of the June 27, 2007 rule change regarding exemptions

for facilities that can demonstrate ORVR-equipped vehicle fleets that is currently pending

EPA review.

## Commissioners

PageS

September 20, 2013

Re: Docket No. 2012-2362-RUL



## What are the consequences if this rulemaking does not go forward? Are there

alternatives to rulemaking?

Owners or operators of new GDFs 

## will be required to install and maintain Stage II

equipment that is not cost-effective and that the EPA has ruled can be removed.

Key 

## points in the adoption schedule:

Anticipated adoption date: October 9, 2013



## Anticipated Texas Register adoption publication date: October 25, 2013



## Anticipated effective date: October 31, 2013



## Six-month Texas Register filing deadline: November 12, 2013



## Agency contacts:

Santos Olivarez, Rule Project Manager, 239-4718, Air Quality Division

Terry Salem, Staff Attorney, 239-0469

Becky Petty, Staff Attorney, 239-1088

Bruce McAnally, Texas Register Coordinator, 239-2141

## Commissioners

Page9

September 20, 2013

Re: Docket No. 2012-2362-RUL

cc: Chief Clerk, 2 copies

Executive Director's Office

Anne Idsal

Curtis Seaton

Tucker Royall

Office of General Counsel

Santos Olivarez

Bruce McAnally

## EVALUATION OF TESTIMONY



## The Texas Commission on Environmental Quality (TCEQ, agency, commission) adopts the

amendments to §§115.240, 115.242- 115.246; 

## new §115.241; 

## and repeal of §§115.241, 115.247,



## and 115.249.



## Sections 115.241, 115.245, 

## and 115.246 

## are adopted 

## with changes to the proposed text. Amended

§§115.240 

## and 115.242- 115.244 

## and the repeal of §§115.241, 115.247, 

## and 115.249 

## are adopted



## without changes to the proposed text and, therefore, will not be republished. The proposed

sections were published in the May 10, 2013 

## issue of the 

## Texas Register (38 

## TexReg 2823).



## The commission will submit the amendments, new section, and repeals to the United States

Environmental Protection Agency (EPA) as a revision to the state implementation plan (SIP).



## Background and Summary of the Factual Basis for the Adopted Rules

The Federal Clean Air Act (FCAA) amendments of 1990 

## require states to submit a revision to the

SIP no later than November 15, 1992 

## that included a Stage II Vapor Recovery Program to control

gasoline vapors from the refueling of motor vehicles for areas classified as moderate and above.

A Stage II vapor recovery SIP was first approved for Texas on October 16, 1992 

## and later revised

on November 10, 1993. 

## The Stage II Vapor Recovery Program uses technology to prevent

gasoline vapors from escaping during refueling. Gasoline vapors are volatile organic compounds

(VOC) that can react with nitrogen oxides in the presence of sunlight to form ozone. As 

## part of

the control strategy for ozone attainment, the EPA mandated that Stage II refueling

requirements apply to all public and private gasoline dispensing facilities (GDFs) that dispense

10,000 

## gallons or more of gasoline per month. The TCEQ applied a more stringent throughput

standard in the ozone nonattainment counties by requiring GDFs constructed after November

1

## 15, 1992 to install Stage II vapor recovery regardless of throughput. Diesel fuel dispensers were

still exempt from the rule, and the rule also left in place exemptions for equipment used

exclusively for the fueling of aircraft, watercraft, or implements of agriculture. The original Stage

II vapor recovery rules relied on the California Air Resources Board (CARB) certification

procedures for vapor recovery equipment. The Stage II SIP revision was revised again November

6, 2002 to require more frequent testing and more on-site evaluation of testing performed on

vapor recovery systems at GDFs, as well as a phase-in schedule to retrofit or install onboardrefueling vapor-recovery (ORVR) compatible Stage II vapor recovery systems. Stage II vapor

system efficiency was compromised by ORVR equipped vehicles unless the system had ORVR

compatible hardware. The Stage II SIP revision was again revised on March 23, 2005 to offer an

expanded definition for "ORVR compatible" that allowed for the use of other technologies for

controlling gasoline vapors. On June 27, 2007 the commission adopted changes to 30 TAC

Chapter 115 to add language exempting facilities from installing Stage II equipment if the facility

could demonstrate that refueling at that facility involved a fleet of 95% or more ORVR-equipped

vehicles. This rule change was submitted as a SIP revision with no change to the Stage II SIP

narrative. The June 27, 2007 rule change is still under consideration by the EPA and has not

been approved. The EPA expressed concerns that the language justifying the exemption needed

to be more descriptive and explanatory. Upon the adoption of the this rulemaking concerning

decommissioning, the commission will concurrently request withdrawal of the June 27, 2007

rule change, regarding exemptions for facilities that can demonstrate ORVR-equipped vehicle

fleets that is currently pending EPA review, since that exemption will no longer be necessary.

FCAA, §202(a)(6) also provides that the EPA may revise or waive the application of Stage II

requirements if the EPA determines that ORVR is in vvidespread use through the motor vehicle

fleet. In the May 16, 2012 issue of the 

## Federal Register (77 FR 28772), the EPA published a final

rulemaking for 40 Code of Federal Regulations (CFR) Part 51 determining that vehicle ORVR

2

## technology is in widespread use for the purposes of controlling motor vehicle refueling

emissions throughout the motor vehicle fleet. Vehicle ORVR systems are passive systems that

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

## be directed into a

carbon canister holding system within the vehicle and ultimately to the engine where the vapors

are consumed. The EPA required ORVR systems to be phased in beginning with 1998 modelyear light-duty gasoline vehicles and as of 2006, all new light- and medium-duty gasoline

vehicles are equipped with ORVR. An 

## initial analysis using the EPA Motor Vehicle Emissions

Simulator 2010a model shows that the benefits from ORVR alone will 

## be greater than the

benefits from Stage II alone by the year 2010 in the Houston-Galveston-Brazoria (HGB) area,

2012 in the Dallas-Fort Worth (DFW) area, 2013 in the Beaumont-PortArthur (BPA) area, and

2014 in the El Paso area. Vehicle ORVR systems are monitored through a vehicle's on-board

diagnostic system making the system much more cost-effective than the required monitoring

and testing of Stage II systems.

The determination that ORVR technology is in widespread 

## use allows the EPA to waive the

requirement for states to implement Stage II gasoline vapor recovery systems at GDFs in

nonattainment areas classified as moderate and above for the ozone National Ambient Air

Quality Standard (NAAQS). States that have implemented a Stage II program may revise their

Stage II SIP demonstrating that the air quality will 

## be maintained after removing the Stage II

.

equipment. The adopted rule revision would revise Chapter 115, Subchapter C, Division 4 to

specify that ovmers or operators of new GDFs are not required to install Stage II equipment and

to require owners or operators of existing GDFs in the current program areas to properly

decommission Stage II equipment. According to the EPA's guidance document: 

## Guidance on

Removing Stage II Gasoline Vapor Control Programs from State Implementation Plans and

Assessing Comparable Measures issued August 7, 2012 by the EPA's Office of Air Quality

Planning and Standards (EPA-457/B-12-001), the commission will need to demonstrate under

3

## FCAA, §no(l) that air quality will not be affected by the decommissioning of, or failure to install,

Stage II equipment. This demonstration will be incorporated into the corresponding SIP

revision and is discussed further in the 

## Demonstrating Noninterference under Federal Clean

Air Act, Section 110(1) 

## portion of this preamble.



## Demonstrating Noninterference under Federal Clean Air Act, Section 110(1)



## The Stage II program is a FCAA-specified VOC control strategy for ozone nonattainment areas

designated as serious and above. Under FCAA, §no(l), the EPA cannot approve a SIP revision if

it would interfere with attainment of the NAAQS, reasonable further progress toward

attainment, or any other applicable requirement of the FCAA. The EPA has to approve a SIP

revision that removes or modifies Stage II gasoline refueling vapor control measures if the EPA

concludes that a state's submittal provides that the removal of Stage II controls would not

interfere with attainment of the NAAQS, reasonable further progress, or any other applicable

requirement of the FCAA. The executive director has performed an assessment of the exact

amount of benefit loss from removing Stage II and any effect on air quality programs in the four

Texas Stage II areas using the method documented in the EPA's guidance referenced previously

in this preamble. An 

## analysis for years 2012 through 2030 found that for all years the losses

represent less than one-half of one percent of the total VOC inventory. The benefit losses for

removing Stage II are small in 2012 and decrease rapidly as the percentage of vehicles equipped

with ORVR increase over time. The assessment found that small changes to the VOC inventories

due to the removal of Stage II do not significantly change any of the results of the Texas air

quality plans. The detailed analysis, which demonstrates that removal of Stage II requirements

does not interfere with attainment or maintenance of the NAAQS, is included in the Stage II SIP

revision, 

## Stage II Vapor Recovery Program State Implementation Plan Revision, prop9sed

Apri123, 2013, that corresponds with this rule revision (Project Number 2013-002-SIP-NR).

4

## Section by Section Discussion

§115.240, 

## Stage II Vapor Recovery Definitions and List of California Air Resources Board

Certified Stage II Equipment

The commission adopts amendments to §115.240 

## by adding definitions for "decommission" and

"gasoline dispensing facility." The term "decommission" is defined as the permanent removal of

all Stage II vapor recovery controls at a GDF. The term "gasoline dispensing facility" is defined

as a location that dispenses gasoline to motor vehicles and includes retail outlets and private

and commercial outlets. The definitions in this section have been re-numbered as needed.

§115.241, 

## Emission Specifications

The commission adopts the repeal of existing §115.241. 

## The emission specifications in §115.241



## are no longer necessary because installation of Stage II equipment will not be required at any

GDF upon adoption of this rulemaking. This section required that the transfer of gasoline from a

stationary storage container to a motor vehicle fuel tank be allowed only if an approved Stage II

vapor recovery system had been installed at the GDF.

§115.241, 

## Decommissioning of Stage II Vapor Recovery Equipment

The commission adopts new §115.241 

## to provide requirements for the time line and process for

decommissioning of Stage II vapor recovery controls at GDFs. The new section establishes that

the decommissioning process may begin 30 

## calendar days after the effective date of the EPA's

approval of the repeal of the Stage II vapor recovery requirement and the EPA's approval of the

corresponding SIP revision. The 30 

## calendar day time frame allows TCEQ regional office staff,

on-site supervisors, licensed contractors, and owners and operators of GDFs to coordinate

decommissioning activities. The commission adopts this delayed implementation for

decommissioning because the EPA has stipulated that Stage II controls cannot be removed until

the EPA has approved a State's Stage II decommissioning rule and SIP revisions.

5

## The new language includes several independent notification requirements and procedural

activities that must occur during the decommissioning process. Owners and operators of GDFs

that decommission their Stage II vapor recovery equipment are required to provide three

different notifications to ensure that decommissioning activities may be appropriately enforced.

First, owners and operators must notify the appropriate TCEQ regional office and local

government with jurisdiction where the GDF is located of their intent to decommission at least

30 

## calendar days prior to the beginning of the decommissioning activity. The notification of

intent to decommission provides information on the GDF location, the owner and operator of

the GDF, the on-site supervisor who will be directing the decommissioning activities, the type of

system installed at the GDF, as well as a projected start date for decommissioning activity. Onsite supervisors are generally the responsible individuals involved in the Stage II vapor recover

equipment installation and decommissioning and carry underground storage tank Class A or

Class A/B licenses. If 

## decommissioning activities are not initiated within 180 

## calendar days after

the date the notice of intent to decommission is received by the TCEQ, the owner or operator of

the GDF must re-file the notice of intent to decommission for the GDF location. This will

provide additional flexibility for GDF locations that encounter problems with contractors or

other logistical problems, while ensuring that TCEQ and local government staff are kept

appropriately informed of decommissioning activity.

The second notification required by the section is a notification 24-72 

## hours prior to start of

decommissioning activity to enable commission or local government staff to schedule site visits

to ensure appropriate enforcement of decommissioning activity. The last notification owners

and operators are required to submit to the TCEQ regional office and local government with

jurisdiction where the GDF is located is a decommissioning completion notification required no

later than 10 

## calendar days after decommissioning activity is completed. This decommissioning

6

## completion notification provides for the submittal of information regarding appropriate

certifications and license information for the on-site supervisor who supervised testing and

required test results demonstrating that no leaks were detected. The adopted rules include

additional detail as to the content of these notices to ensure compliance with the

decommissioning requirements.

The section also describes requirements for decommissioning, including the proper procedures

for disconnecting and capping parts of the system and a list of test procedures to ensure the

prevention of leaking vapors and fluids. The TCEQ will develop a checklist: 

## Stage II

Decommissioning Checklist and Submittal Form, which vvill 

## include all applicable

decommissioning requirements included in this rulemaking. The requirements were developed

using the Decommissioning Stage II Vapor Recovery Piping section in the Petroleum Equipment

Institute's (PEl) publication, 

## Recommended Practices for Installation and Testing of Vapor

Recovery Systems at Vehicle-Fueling Sites, PEI/RP300-09, as a reference. PEl's practices are

generally accepted and regarded by industry stakeholders as the appropriate methods for

successfully decommissioning the equipment. The adopted rules revised proposed requirements

to allow hanging hardware equipment to be replaced through attrition or by August 31, 2018 at

the latest. The adopted rules also corrected the publication date from November 2002 to

December 2002 of the 

## Vapor Recovery Test Procedures Hand Book, RG-399, that is used for

conducting the TXP-102 and TXP-103 test procedures.

Lastly, new subsection (c) establishes deadlines for the decommissioning processes. In response

to comments, the commission adopts subsection (c)(1) that requires that all decommissioning

activity at a specific GDF location be completed within 30 calendar days after the date

decommissioning activity was initiated. Additionally, the commission adopts subsection (c)(2)

7

## requires that all GDFs in the state complete all decommissioning activity no later than August

31,2018.



### §115.242, 

## Control Requirements

The commission adopts revisions to §115.242 

## providing that after May 16, 2012 

## the owner or

operator of newly constructed GDF is no longer required to install Stage II vapor controls on its

gasoline dispensing equipment. May 16, 2012 

## is the date the EPA issued its final rule

determining that vehicle ORVR technology is in widespread use for purposes of controlling

motor vehicle refueling emissions throughout the motor vehicle fleet. Since the commission is

mandating decommissioning of all Stage II equipment by August 31, 2018, 

## requiring owners or

operators of new GDFs to install Stage II equipment would provide little to no measurable

benefit for air quality. GDFs that did not have Stage II vapor controls as of May 16, 2012 

## due to a

confirmed exemption because of low monthly throughput or low average monthly throughput

are not subject to the requirements of this section. Owners and operators of GDFs with installed

Stage II equipment have the option of decommissioning Stage II equipment in compliance with

the requirements adopted in §115.241 

## or continuing to operate with the current Stage II

equipment until the mandatory removal date of August 31, 2018. 

## The mandatory removal date

was established after stakeholders requested that the commission provide five to six years prior

to decommissioning to allow for Stage II equipment installed at the time of the EPA's rule being

finalized to be used through its expected life use. The mandatory date has also been established

since finding compliant replacement equipment will be more difficult and the number of

licensed testers will be reduced making it difficult for owners and operators of GDFs with Stage

II equipment to comply vvith existing requirements. The TCEQ requested comment on the

mandatory decommissioning date of August 31, 2018 

## and comment was received supporting the

end date by which all Stage II vapor control equipment must be appropriately removed.



## 8

## The adopted language also states that if an owner or operator elects to retain the Stage II vapor

controls, the GDF will continue to meet the requirements of this division until the Stage II vapor

controls are properly removed from the GDF. To address the voluntary installation of Stage II

equipment at GDFs not located in the affected counties, new language was incorporated

requiring all owners of GDFs, regardless oflocation in the state, to remove all Stage II

equipment by August 31, 2018. 

## The adopted language replaces repealed language requiring all

GDFs in the counties listed in §115.249 

## to comply with this division. This rule revision provides

that no GDF in any county would have Stage II equipment installed or operational after August

31, 2018. 

## Voluntary Stage II installations at GDFs outside of affected counties have not been

included in any modeling for past SIP activities and have no impact on the SIP revision

associated with this rulemaking.

The adopted revisions to §115.242 

## delete paragraphs (10)- (12), 

## because GDFs no longer need to

meet these requirements. Paragraph (10) 

## corresponded to exemptions in §115.247, 

## which was

also repealed. Paragraph (11) 

## related to the installation of approved systems if CARB

certification of a previously installed system was revoked. Finally, paragraph (12) 

## required

facilities to notify the regional office with jurisdiction of any Stage II vapor recovery system

installation.

§115.243, 

## Alternate Control Requirements

The adopted revision to §115.243 

## updates references to §115.242, 

## which was revised to authorize

the decommissioning of Stage II vapor controls.

9

### §115.244, 

## Inspection Requirements

The adopted revision to §115.244 

## updates references to §115.242, 

## which was revised to authorize

the decommissioning of Stage II vapor controls and updates a reference to gasoline dispensing

facilities to correspond to the new definition of this term.

§115.245, 

## Testing Requirements

The commission adopts amended §115.245 

## to require that prior to the decommissioning

deadline of August 31, 2018, 

## owners or operators of GDFs that elect to install, repair, replace, or

retain the Stage II vapor controls must comply with the requirements of this section. The

adopted language clarifies that owners or operators of GDFs must continue to maintain and test

the facility's Stage II vapor control equipment to ensure it is working properly and capturing

gasoline vapors.

§115.246, 

## Recordkeeping Requirements

The commission adopts amended §115.246 

## to update references to gasoline dispensing facilities,

to correspond to the new definition of this term, and to provide that records sufficient to

demonstrate compliance with decommissioning requirements be kept on site for five years

following the completion of decommissioning activities. Although other recordkeeping

requirements in this subchapter are required to be maintained for two years or indefinitely, the

high level of decommissioning activity will likely require inspections and investigations beyond

a two-year time frame.

In response to comments to clarify the recordkeeping requirements, adopted §115.246 

## is

restructured and streamlined to avoid confusion. Records that must be maintained, proposed as

§115.246(1)-(7), 

## are provided under adopted subsection (a) and include the same content

requirements as proposed. The records retention schedule and availability requirements,

10

## proposed as §115.246(8), are adopted as subsection (b). Adopted §115.246(b)(1) specifies that

the records required under subsection (a)(1), (2), (5), and (7) must be maintained until five

years following the date of completion of decommissioning. Records required under subsection

(a)(7) are those records associated with the decommission process. The records specified under

subsection (a)(1), (2), and (5) are existing record requirements that were previously required to

be maintained indefinitely. However, in response to comments, the adopted rule is revised to

require that the records under subsection (a)(1), (2), and (5) be maintained until five years

following the date of completion of decommissioning. Adopted §115.246(b)(1) also specifies that

records required under subsection (a)(3), (4), and (6) must be maintained for two years as was

proposed. The records contained in §115.246(a)(3), (4), and (6) are existing record requirements

that are tied to specific events, and records generated from these events will cease once

decommissioning is completed. Therefore, owners or operators will only be required to maintain

the records under §115.246(a)(3), (4), and (6) for two years follovving the most recent event

preceding decommissioning.

The current records availability requirements, proposed as §115.246(8)(A) and (B), are adopted

as §115.246(b)(2) and (3). The adopted records availability requirements are substantively

unchanged from the proposed language.

§115.247, Exemptions



## The commission repeals §115.247 because exemptions from the Stage II requirements are longer

applicable to this division. Since Stage II is no longer required, the exemptions for GDFs that

dispense gasoline to aircraft, watercraft, and agricultural equipment; GDFs that began

construction before November 15, 1992 and dispense less than 10,000 

## gallons a month; and

GDFs that refuel a motor fleet that is 95% ORVR equipped are no longer necessary. The adopted

language in §115.242(a) makes clear that GDFs that did not have Stage II vapor controls

11

## installed as of May 16, 2012 are not subject to this division. Therefore, GDFs that qualified for

these exemptions are not subject to the rule by the repeal of this exemption section.

§115.249, 

## Counties and Compliance Schedules

The commission repeals §115.249 because upon EPA approval of the Stage II Vapor Recovery

Program SIP Revision, 

## Stage II Vapor Recovery Program State Implementation Plan Revision,

proposed April 23, 2103, Stage II will no longer be required at GDFs in Brazoria, Chambers,

Collin, Dallas, Denton, El Paso, Fort Bend, Galveston, Harris, Hardin, Jefferson, Liberty,

Montgomery, Orange, Tarrant, and Waller Counties. Additionally, the compliance date of April

1, 2007 for GDFs to become ORVR compatible has passed.



## Final Regulatory Impact Determination

The commission reviewed the adopted rulemaking in light of the regulatory impact analysis

requirements of Texas Government Code, §2001.0225 and determined that the rulemaking does

not meet the definition of a "major environmental rule" as defined in that statute. A "major

environmental rule" means a rule, the specific intent of which is 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. Additionally, the

rulemaking does not meet any of the four applicability criteria for requiring a regulatory impact

analysis for a major environmental rule, which are listed in Texas Government Code,

§2001.0225(a). Texas Government Code, §2001.0225 applies only to a major environmental

rule, the result of which is to: 1) exceed a standard set by federal law, unless the rule is

specifically required by state law; 2) exceed an express requirement of state law, unless the rule

is specifically required by federal law; 3) exceed a requirement of a delegation agreement or

contract between the state and an agency or representative of the federal government to

12

## implement a state and federal program; or 4) adopt a rule solely under the general powers of the

agency instead of under a specific state law.

The adopted rulemaking amends §§115.240, 115.242-115.246, creates new §115.241, and repeals

§§115.241, 115.247, and 115.249. The revisions to Chapter 115 specify that new GDFs are not

required to install Stage II equipment and allow existing GDFs in the current program areas to

properly decommission Stage II equipment.

FCAA, §182(b)(3) provides that for ozone nonattainment areas classified as serious or above,

states must revise their SIP to require all owners or operators of gasoline dispensing systems

operating after November 15, 1990 to install a system for gasoline vapor recovery of emissions

from the fueling of motor vehicles. FCAA, §202(a)(6) requires the EPA to implement

requirements for ORVR. Both Stage II and vehicle ORVR are types of emission control systems

that capture fuel vapors from vehicle gas tanks during refueling. FCAA, §202(a)(6) also provides

that the EPA may revise or waive the application of Stage II requirements if it determines that

ORVR is in widespread use throughout the motor vehicle fleet. As 

## mentioned previously in this

preamble, the EPA published final rulemaking for 40 CFR Part 51 determining that vehicle

ORVR technology is in widespread use for the purposes of controlling motor vehicle refueling

emissions throughout the motor vehicle fleet on May 16, 2012 (77 FR 28772). This action allows

the EPA to waive the requirement for states to implement Stage II gasoline vapor recovery

systems at GDFs in nonattainment areas classified as serious and above for the ozone NAAQS.

The adopted rulemaking implements requirements of 42 United States Code (USC), §7410,

which requires states to adopt a SIP that provides for the implementation, maintenance, and

enforcement ofthe NAAQS in each air quality control region ofthe state. While 42 USC, §7410

generally does not require specific programs, methods, or reductions in order to meet the

13

## standard, the SIP must include enforceable emission limitations and other control measures,

means, or techniques (including economic incentives such as fees, marketable permits, and

auctions of emissions rights), as well as schedules and timetables for compliance as may be

necessary or appropriate to meet the applicable requirements of this chapter (42 USC, Chapter

85). The provisions of the FCAA recognize that states are in the best position to determine what

programs and controls are necessary or appropriate in order to meet the NAAQS. This flexibility

allows states, affected industry, and the public, to collaborate on the best methods for attaining

the NAAQS for the specific regions in the state. Even though the FCAA allows states to develop

their own programs, this flexibility does not relieve a state from developing a program that

meets the requirements of 42 USC, §7410. States are not free to ignore the requirements of 42

USC, §7410 and must develop programs to assure that their contributions to nonattainment

areas are reduced so that these areas can be brought into attainment on schedule.

The adopted rulemaking implements the EPA's rulemaking that was published May 16, 2012 (77

FR 28772) for 40 CFR Part 51, determining that vehicle ORVR technology is in widespread use

for the purposes of controlling motor vehicle refueling emissions throughout the motor vehicle

fleet and waiving the requirement for states to implement Stage II gasoline vapor recovery

systems at GDFs in nonattainment areas classified as serious and above for the ozone NAAQS.

Revisions to Chapter 115 specifying that owners of new GDFs are not required to install Stage II

equipment and to allow existing owners of GDFs in the current program areas to properly

decommission Stage II equipment is a necessary and required component of developing the SIP

for nonattainment areas as required by 42 USC, §7410.

The requirement to provide a fiscal analysis of proposed regulations in the Texas Government

Code was amended by Senate Bill (SB) 633 during the 75th Legislature, 1997. The intent of SB

633 was to require agencies to conduct a regulatory impact analysis of extraordinary rules.

14

## These rules are identified in the statutory language as major environmental rules that will have a

material adverse impact and will exceed a requirement of state law, federal law, or a delegated

federal program, or are adopted solely under the general powers of the agency. With the

understanding that this requirement would seldom apply, the commission provided a cost

estimate for SB 633 concluding that "based on an assessment of rules adopted by the agency in

the past, it is not anticipated that the bill will have significant fiscal implications for the agency

due to its limited application." The commission also noted that the number of rules that would

require assessment under the provisions of the bill was not large. This conclusion was based, in

part, on the criteria set forth in the bill that exempted proposed rules from the full analysis

unless the rule was a major environmental rule that exceeds a federal law.

As 

## discussed earlier in this preamble, the FCAA does not always require specific programs,

methods, or reductions in order to meet the NAAQS; thus, states must develop programs for

each area contributing to nonattainment to help ensure that those areas will meet the

attainment deadlines. Because of the ongoing need to address nonattainment issues and to meet

the requirements of 42 

## USC, §7410, 

## the commission routinely proposes and adopts SIP rules.

The legislature is presumed to understand this federal scheme. If 

## each rule proposed for

inclusion in the SIP was considered to be a major environmental rule that exceeds federal law,

then every SIP rule would require the full regulatory impact analysis contemplated by SB 633.

This conclusion is inconsistent with the conclusions reached by the commission in its cost

estimate and by the Legislative Budget Board (LBB) in its fiscal notes. Since the legislature is

presumed to understand the fiscal impacts of the bills it passes and that presumption is based

on information provided by state agencies and the LBB, the commission believes that the intent

of SB 633 was only to require the full regulatory impact analysis for rules that are extraordinary

in nature. While the SIP rules will have a broad impact, the impact is no greater than is

necessary or appropriate to meet the requirements of the FCAA. For these reasons, rules

15

## adopted for inclusion in the SIP fall under the exception in Texas Government Code,

§2001.0225(a) because they are required by federal law.

The commission has consistently applied this construction to its rules since this statute was

enacted in 1997. Since that time, the legislature has revised the Texas Government Code but left

this provision substantially un-amended. It 

## is presumed that "when an agency interpretation is

in effect at the time the legislature amends the laws without making substantial change in the

statute, the legislature is deemed to have accepted the agency's interpretation." 

## Central Power &



## Light Co. 

## v. Sharp, 919 S.W.2d 485, 489 (Tex. App. Austin 1995), 

## writ denied with per curiam

opinion respecting another issue, 960 S.W.2d 617 (Tex. 1997); 

## Bullock v. Marathon Oil Co., 798

S.W.2d 353, 357 (Tex. App. Austin 1990, 

## no writ). Cf Humble Oil & 

## Refining Co. v. Calvert, 414

S.W.2d 172 (Tex. 1967); 

## Dudney v. State Farm Mut. Auto Ins. Co., 9 S.W.3d 884, 893 (Tex. App.

Austin 2000); 

## Southwestern Life Ins. Co. v. Montemayor, 24 S.W.3d 581 (Tex. App. Austin

2000, 

## pet. denied); and 

## Coastal Indust. Water Auth. v. Trinity Portland Cement Div., 563

S.W.2d 916 (Tex. 1978).

The commission's interpretation of the regulatory impact analysis requirements is also

supported by a change made to the Texas Administrative Procedure Act (AP A) by the legislature

in 1999. In an attempt to limit the number of rule challenges based upon AP A requirements, the

legislature clarified that state agencies are required to meet these sections of the AP A against the

standard of "substantial compliance." The legislature specifically identified Texas Government

Code, §2001.0225 as falling under this standard. The commission has substantially complied

with the requirements of Texas Government Code, §2001.0225.

The specific intent of the adopted rulemaking allows owners of new GDFs not to install Stage II



## equipment and allows owners of existing GDFs in the current program areas to properly

16

## decommission Stage II equipment. The EPA may grant the removal and waiver of Stage II

equipment due to the widespread use of ORVR in the overall vehicle fleet. The adopted rules

permit these changes to occur in Texas. As 

## explained previously in this preamble, vehicles

equipped with ORVR technology provide greater pollution reduction benefits than Stage II

vapor control systems and are more cost-effective. The adopted rulemaking does not exceed a

standard set by federal law or exceed an express requirement of state law. No contract or

delegation agreement covers the topic that is the subject of this adopted rulemaking. Therefore,

this adopted rulemaking is not subject to the regulatory analysis provisions of Texas

Government Code, §2001.0225(b) because although the rulemaking meets the definition of a

"major environmental rule," it does not meet any of the four applicability criteria for a major

environmental rule.

The commission invited public comment regarding the draft regulatory impact analysis

determination during the public comment period. No comments were received on the draft

regulatory impact analysis and no changes were made.



## Takingsin1pactAssessrnent

The commission evaluated the adopted rulemaking and performed an assessment of whether

Texas Government Code, Chapter 2007 is applicable. The specific purpose of the adopted

rulemaking is to specifY that new GDFs are not required to install Stage II equipment and to

allow existing GDFs in the current program areas to properly decommission Stage II equipment

as required by 42 USC, §7410. FCAA, §182(b)(3) provides that for certain nonattainment areas,

states must revise their SIP to require all owners or operators of GDFs operating after November

15, 1990 to install a system for gasoline vapor recovery of emissions from the fueling of motor

vehicles. FCAA, §202(a)(6) also required the EPA to implement requirements for vehicle ORVR.

Both Stage II and vehicle ORVR are types of emission control systems that capture fuel vapors

17

## from vehicle gas tanks during refueling. FCAA, §202(a)(6) also provided that the EPA may

revise or waive the application of Stage II requirements if it determined that ORVR was in

widespread use throughout the motor vehicle fleet.

As 

## mentioned previously in the preamble, the EPA finalized a rulemaking on May 16, 2012 (77

FR 28772) for 40 CFR Part 51, determining that vehicle ORVR technology is in widespread use

for the purposes of controlling motor vehicle refueling emissions throughout the motor vehicle

fleet. This action allows the EPA to waive the requirement for states to implement Stage II

gasoline vapor recovery systems at GDFs in nonattainment areas classified as serious and above

for the ozone NAAQS. The EPA may grant the removal and waiver of Stage II equipment due to

the widespread use of ORVR in the overall vehicle fleet. The adopted rulemaking and

corresponding SIP revision permits these changes to occur in Texas. As 

## explained previously in

the preamble, vehicles equipped with ORVR technology provide greater pollution reduction

benefits than Stage II control systems and are more cost-effective. Texas Government Code,

§2007.003(b)(4), provides that Texas Government Code, Chapter 2007 does not apply to this

rulemaking because it is an action reasonably taken to fulfill an obligation mandated by federal

law.

In addition, the commission's assessment indicates that Texas Government Code, Chapter 2007

does not apply to these proposed rules because this action is taken in response to a real and

substantial threat to public health and safety; that is designed to significantly advance the health

and safety purpose; and that does not impose a greater burden than is necessary to achieve the

health and safety purpose. Thus, this action is exempt under Texas Government Code,

§2007.003(b)(13). The adopted rules fulfill the FCAA requirement to decommission Stage II

equipment in nonattainment areas. These revisions will result in VOC emission reductions in

ozone nonattainment areas, which may contribute to the timely attainment of the ozone

18

## standard and reduced public exposure to VOC emissions. Consequently, the adopted rulemaking

meets the exemption criteria in Texas Government Code, §2007.003(b)(4) and (13). For these

reasons, Texas Government Code, Chapter 2007 does not apply to this rulemaking.



## Consistency 

## with the Coastal Management Program

The commission reviewed the adopted rulemaking and found it identified in the Coastal

Coordination Act Implementation Rules 31 TAC §sos.u(b)(2) or (4), relating to rules subject to

the Coastal Management Program, and will, therefore, require that goals and policies of the

Texas Coastal Management Program (CMP) be considered during the rulemaking process. 31

TAC §sos.u(b)(2) applies only to air pollutant emissions, on-site sewage disposal systems, and

underground storage tanks. 31 TAC §sos.u(b)(4) applies to all other actions.

The commission reviewed this rulemaking for consistency with the CMP goals and policies in

accordance with the regulations of the Coastal Coordination Council Advisory Committee and

determined that the revisions are consistent with CMP goals and policies, 

## \\ill not have direct or

significant adverse effect on any coastal natural resource areas; will not have a substantive effect

on commission actions subject to the CMP; and promulgation and enforcement of the revisions

will not violate (exceed) any standards identified in the applicable CMP goals and policies.

The commission invited public comment regarding the consistency with the coastal

management program during the public comment period. No comments were received and no

changes were made to the assessment.



## 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,

19

## consistent with the revision process in Chapter 122, 

## revise their operating permits to include the

revised Chapter 115 

## requirements for each emission unit at their sites affected by the revisions to

Chapter 115.



## Public Comment

The commission offered public hearings in: El Paso on May 28, 2013; 

## Beaumont on May 30,

2013; 

## Houston on May 31, 2013; 

## Arlington on June 3, 2013; 

## and Austin on June 4, 2013. 

## The

comment period closed on June 10, 2013. 

## Oral comments were received from Tarrant County.

The commission received written comments from Arid Technologies, Buc-ee's Ltd. (Buc-ee's),

Texas Chemical Council (TCC), Texas Food and Fuel Association (TFFA), and Texas Oil and Gas

Association (TxOGA).

TxOGA incorporated TFFA's comments by reference. Buc-ee's, TCC, TFFA, and TxOGA

expressed overall support for the proposed rule change, and Arid Technologies submitted

comments opposing the rule change. Changes to the rule were suggested by all six commenters.



## General Comments

Arid Technologies questioned whether the TCEQ considered storage tank breathing loss in a

non-Stage II environment.



## The commission focused modeling in the associated SIP revision to the effects of

Stage II decommissioning only in areas that have Stage II requirements in place in

Texas as recommended in the EPA guidance document, Guidance on Removing

Stage II Gasoline Vapor Control Programs from State Implementation Plans and

Assessing Comparable Measures, August 7, 2012. 

## Breathing losses from storage

tanks are a separate source of emissions from refueling and are not included as of

20

## the assessment on the decommissioning of Stage II. The EPA guidance document

did not include a requirement for including storage tank breathing losses. No

change to the rule has been made in response to this comment.

Arid Technologies suggested that enhancing Stage II systems will provide better emission

reductions from refueling and storage tank emissions.



## The ORVR systems on vehicles are designed to replace Stage II vapor recovery

systems for capturing the emissions during vehicle refueling and are already

required by federal law, as discussed elsewhere in this preamble. Once ORVR

systems are in widespread use, the Stage II systems become redundant and more

costly to maintain. Any future improvements to emission control systems for

vehicle refueling will involve improving the effectiveness of these ORVR systems

currently found in vehicles. In addition, the commission did not include Stage II

vapor control enhancement as part of the proposed Stage II decommissioning rule

revision. Consideration of Stage II vapor recovery enhancements is outside the

scope of this rulemaking. No change to the rule has been made in response to this

comment.

TFF A expressed support for most aspects of the changes to the Stage II Vapor Recovery

Program. TFF A offered assistance in developing an owner 

# I operator checklist to facilitate

compliance.



## The commission appreciates TFFA's support and will continue to work with all

stakeholders to ensure successful implementation of decommissioning activities.

21

## TFF A commented that it supports the continued inspection and appropriate testing for Stage II

vapor recovery systems that continue in service until the final decommissioning deadline and

would like for the inspection and testing activities to be counted towards SIP credit until such

time as those systems are finally removed.



## The commission has developed the rule and SIP revisions for the implementation

of decommissioning of Stage II vapor recovery to ensure that emission reduction

plans are not affected in any area. Using the EPA's Guidance on Removing Stage II

Gasoline Vapor Control Programs from State Implementation Plans and

Assessing Comparable Measures, August 7, 2012, the commission determined that

the inspection, testing, and maintenance of Stage II vapor recovery equipment that

continues in service until August 31, 2018 will prevent a harmful gap in area-wide

emissions control and will not affect compliance with the NAAQS. Neither the

guidance nor the Stage II SIP provide for continuing of SIP credit once ORVR

widespread use has been determined and decommissioning of Stage II vapor

control equipment has begun. No changes have been made as a result of this

comment.

TCC and TXOGA requested that TCEQ provide clarification as to when the reports required

under §115.247(2) 

## are no longer applicable to these exempt facilities, and in particular, whether

the report required for 2013 

## is still required after the rule is finalized.

As 

## stated in the EPA's final rulemaking (77 FR 28772), the EPA further evaluated

Stage II exemptions for facilities with throughputs of less than 1o,ooo gallons per

month and determined the exemption rate is still appropriate. To ensure the

control requirements outlined in the Stage II SIP are not affected, the commission

22

## will require facilities to continue to submit reports until the rule revision becomes

effective. No change was made in response to this comment.



## Impact of Decommissioning

Arid Technologies stated that decommissioning Stage II vapor control equipment and relying

solely on ORVR technology will increase VOC and hazardous air pollutants (HAP) emissions and

that motorists in Environmental Justice areas will bear the brunt of increased emissions. The

commenter provided a copy of a recent study conducted by Meszler Engineering and submitted

to the Maryland Department of Environment that reviews the impact of removing Stage II vapor

control equipment to support its claim.



## The commission performed an assessment on the removal of Stage II vapor

control equipment and included this assessment along with the calculations

required by the EPA guidance for assessing the removal of Stage II vapor control

programs in the Stage II SIP revision, Chapter 12: 

## Demonstrating Noninterference

Under Federal Clean Air Act, Section 1.1o(l). 

## The SIP revision includes an

assessment of the effects of decommissioning Stage II equipment on each

nonattainment area with Stage II requirements in the state. The assessments were

developed using local specific data from each affected area and local variables as

required by EPA guidance. The assessment also included a determination of the

emissions benefits of both Stage II and ORVR systems, an assessment of

widespread use of ORVR, and the effects on air quality plans in all areas with Stage

II vapor equipment requirements. The TCEQ found that by 2018 

## ORVR rule

penetration will range from 93 

## to 95% 

## and from 97 

## to 98% 

## by 2030 

## in the four

affected areas in Texas.



## 23

## Each HAP emitted by motor vehicles is a subset of the VOC emissions. Since the

VOC emissions from vehicle refueling are effectively controlled by ORVR systems,

HAP emissions are also controlled.

In reviewing the Maryland study and other information provided by the

commenter, the commission has determined that there are substantial differences

between the Maryland assessment and Texas specific data. Additionally, some

elements of the EPA's guidance document addressing removal of Stage II

programs discussed elsewhere in this preamble make the direct comparison of the

Texas assessment and Maryland study ineffective. Differences include:

Uncontrolled emission factors of7.01 pounds (lbs)/too gallons (gals) in the

Maryland study versus a range of7-47 to 8.51lbsjtoo gals for Texas; ORVR

Penetration of 85% in 2013 in the Maryland study versus 85% to 89% in 2014, 94%

to 96% for 2020, and 96% to 98% for 2030 for Texas; and, Stage II efficiency of 75%

in the Maryland study versus 6o% for Texas as recommended by EPA guidance.

The results of the Texas specific analyses best assess the Stage II removal in the

Texas.

In addition, and as stated earlier in this preamble, the EPA published finalized

rulemaking for 40 CFR Part 51 determining that vehicle ORVR technology is in

widespread use for the purposes of controlling motor vehicle refueling emissions

throughout the motor vehicle fleet (77 FR 28772). The EPA provided in the final

rulemaking for the Widespread Use for Onboard Refueling Vapor Recovery and

Stage II Waiver ( 77 FR 28781) that decommissioning of Stage II systems will not

have disproportionally high and adverse human health or environmental effects

on minority or low-income populations because it does not directly affect the level

24

## of protection provided to human health or the environment under the EPA's

NAAQS for ozone. Lastly, the study provided by the commenter did not provide

specific information regarding the potential for emission increases in Texas from

reliance on ORVR; nor did the study provide any information regarding increased

impact to citizens in Environmental Justice areas other than an assertion

regarding a lower population of ORVR equipped vehicles. No revision to the rule

has been made in response to this comment.

Arid Technologies questioned whether the TCEQ considered the impact of emissions generated

during fueling of tanks which do not have ORVR technology, such as motorcycles, boats, and gas

cans.



## The EPA guidance which includes analyses for ORVR widespread use requires the

assessment to include an evaluation of vehicles that are not equipped with ORVR

systems. The TCEQ assessment included: 1) 

## the distribution of vehicles into

categories of vehicles equipped and not equipped with ORVR including

motorcycles; and, 2) 

## the age distribution of ORVR-equipped vehicles to capture the

percent of these vehicles that do not have ORVR systems. The percent of ORVRequipped vehicles will increase for each future analysis year as the pre-ORVR

vehicles are retired from the fleet. Data to assess the amount of fuel dispensed to

non-road vehicles is not available, and the inclusion of non-road sources is not

part of the Stage II vapor control system analysis and not included in the EPA's

guidance of the decommissioning of Stage II vapor control equipment. No revision

to the rule has been made in response to this comment.



## 25

## Decommissioning Requirements

TFF A comments that once a Stage II system has been removed they know of no reason an entity

should maintain records relating to the decommissioned system. The commenter indicated that

the TCEQ database will continue to show the facilities status as a former Stage II facility and

asked if there is a purpose for the information beyond showing this history. TFF A expressed

opposition to keeping any records on-site beyond an immediate use, or for an "indefinite period

of time," as stated in the proposed rule. TFFA suggests amending §115.246 

## to clarify that the

records, specifically CARE Executive Orders, must be kept on-site indefinitely or until such time

as the system has been decommissioned in accordance with §115.242.



## The commission agrees that §115.246 of the proposed rule requires clarification.

Recordkeeping retention requirements in the existing section vary depending on

the type of record. The commission has revised the proposal language within

§115.246 by placing proposed §115.246(1)- (7) requirements under adopted

subsection (a). The records retention schedule and availability requirements

proposed as §115.246(8) are now adopted under adopted subsection (b). 

## The

records specified under subsection (a)(1), (2), and (5) are existing records that

were required to be maintained indefinitely. The adopted rule will require these

records be maintained for five years following the date of decommissioning. The

records contained in §115.246(a)(3), (4), and (6) are existing records that must be

maintained for two years; however, these records are related to events that will

cease once decommissioning has been completed. The adopted rule will require

that these records be maintained for two years following the most recent event

preceding decommissioning.

26

## Buc-ee's requested clarification whether the notification required by §115.241(b)(1) 

## may be

submitted prior to the 30 

## calendar-day window between the EPA approval of the Stage II

decommissioning rule and the effective date, if there is effectively a minimum 6o-day waiting

period from the date of EPA approval before decommissioning activities may commence.



## The commission apologizes for confusion on this issue. There is not a 6o-day

waiting period from the effective date of the EPA's approval. Owners or operators

of GDFs may begin submitting notices of intent to decommission on or after the

EPA's effective date of their approval of the adopted rulemaking and SIP revision.

Owners or operators of GDFs may begin decommissioning activities 30 

## calendar

days after the submittal of notice of intent to decommission. These 30 

## calendar

days will support planning and review activities and provide for adequate

compliance oversight. As 

## discussed in the Section by Section portion of the

accompanying rulemaking preamble, the commission changed language in

adopted §115.241(a) to make clear that owners and operators could begin

decommissioning activities 30 

## calendar days after the effective date of EPA's

effective date of their approval of the adopted rulemaking and SIP revision.

TCC and TXOGA commented that requiring operators to notify TCEQ: 1) 

## 30 

## days before

decommissioning; 2) 24-72 

## hours before decommissioning; and 3) ten days after

decommissioning is excessive. TCC recommended that TCEQ streamline the notice

requirements associated with decommissioning. Specifically, TCC and TXOGA recommended

that TCEQ delete the electronic notice requirements.



## The notification requirements are necessary to maintain communication between

facilities, TCEQ regional staff, and the on-site supervisors and licensed contractors

27

## that will be performing the decommissioning and testing of equipment at the

facilities. The notifications required prior to the commencement of

decommissioning activities provide TCEQ notification that the facility plans to

begin decommissioning activities. In addition, the 24

- 72 hour notification

provides the facility an opportunity to extend or change decommissioning plans in

the event of weather or equipment issues. The ten-day notification after the

decommissioning is necessary to provide notice to the TCEQ that all Stage II

equipment has been removed, that testing has occurred, and that the f'mal close

out activities have occurred. Notifications of these types and durations are

typically seen during construction activities and are necessary not only to

maintain communication but to promote and enhance compliance oversight. No

changes have been made in response to this comment.

TCC and TXOGA commented that §115.241(b)(3)(E), which requires the owner/operator to

provide "Stage II vapor recovery system information" is not sufficiently clear and requested that

the requirement for "Stage II vapor recovery system information" be struck from the notice

requirements.



## The commission agrees with the commenter that this phrase could be unclear and

has made a change to the rule to clarify that the "Stage II vapor recovery system

information" as referenced in §115.241(b)(3)(E) includes the vapor recovery

system manufacturer and the CARB Executive Order for that system or other

information necessary to provide identifying system information.

TCC and TXOGA commented that proposed §n5.241(b)(5)(A) states that notification after

decommissioning must include "a certified and signed document with the name, address, and



## 28

## license number of the licensed contractor who performed the decommissioning," and requested

clarification on the licensing credentials of the contractor required by this rule.



## The commission has made a change to the proposed rule to clarify the licensing

credentials of the contractor who performed the decommissioning. The

commission changed "licensed contractor" to "on-site supervisor" and requested

license numbers for their Class A or Class A/B licenses in §115.241(b)(3)(D) and

(4)(D) and (E).

Decommissioning Process

Tarrant County suggested a transition period of relaxed enforcement while entities are in the

process of decommissioning Stage II tanks.



## The commission has determined that a relaxation of enforcement activity

regarding compliance with the testing and inspection of Stage II vapor control

equipment is not appropriate. The adopted rule provides for adequate notification

and provides facilities a five-year period to plan for and implement

decommissioning activities. The TCEQ is committed to working with facility

owners to resolve unplanned issues on an individual basis. No revision to the rule

has been made in response to this comment.

TFFA commented in support of the final date of decommissioning deadline of August 31, 2018



## since this will allow those owners who wish to fully maximize Stage**I~** 

## equipment's useful life

and minimize the cost to those companies that have multiple sites with Stage II equipment

installed. This date should also allow a more orderly transition to the industry for other issues



## 29

## such as daily and weekly inspections, budgeting for decommissioning costs, and other ancillary

issues related to the use, maintenance, and operation of Stage II vapor recovery systems.



## The commission appreciates TFFA's support. Section 115.245 ofthe adopted

rulemaking has been modified to clarify that GDF owners and operators who elect

to continue with Stage II systems until August 31, 2018 must also continue to

repair, replace, and maintain Stage II vapor control equipment.

Buc-ee's urged the TCEQ to quickly implement the rule revisions necessary to allow for

decommissioning of Stage II systems. Currently, facilities are delaying replacing existing

dispensers because they do not want to purchase equipment that will need to be removed

through the decommissioning process.



## The commission appreciates Buc-ee's support and recognizes the difficulties

inherent in transitioning from current Stage II requirements and testing. The

commission will continue to work with all stakeholders to ensure that proper

decommissioning activities are performed upon the EPA's approval. Additionally,

the EPA has agreed to a parallel review process of this rulemaking change and

accompanying Stage II SIP revision, which may expedite the EPA's approval and

allow for entities to decommission as quickly as possible. In order to provide

additional clarity and avoid a time gap between the EPA's effective date of the

approval of the adopted rulemaking and SIP revision and the date that

decommissioning activities may begin at GDFs, the commission revised language

in proposed §115.241(a) to clarify the effective date of when GDF owners or

operators could begin decommissioning Stage II vapor control equipment at their

site. Additionally, §115.41(b)(1)(A) requires that notice of intent to decommission

30

## be submitted to the commission at least 30 days prior to the beginning of any

decommissioning activity.

Buc-ee's questioned the time frame for when the various requirements of §115.241(b)(4)(A)- (P)

should be completed. As 

## currently written, the proposed rule did not stipulate when various

components of the decommissioning process should be accomplished. Buc-ee's proposed that

§115.241(b)(4) be modified to read as follows: "The owner or operator shall perform and

complete all of the following decommissioning activities, as applicable, ·within 30 

## days of the

initiation of decommissioning."



## The commission agrees that the language in the proposed §115.241(b)(4)(A)- (P)

requires clarification to provide for a deadline by which the decommissioning

activities must be completed. In order to avoid the situation of owners or

operators of GDFs partially decommissioning and being required to continue

testing and inspection of remaining Stage H equipment at the site, the commission

developed the rules requiring that owners and operators of GDFs would

decommission entirely once the activity was begun. The commission revised

proposed subsection (c) to establish deadlines for the decommissioning processes.

The commission adopts subsection (c)(1), which requires all decommissioning

activity at a specific GDF location be completed within 30 calendars days after the

date decommissioning activity was initiated. Additionally, the commission adopts

subsection (c)(2), which requires that all owners or operators ofGDFs in the state

complete all decommissioning activity no later than August 31, 2018.

Buc-ee's questioned why immediate replacement of the Stage II hanging hardware with

conventional, industry-standard hanging hardware, required by §115.241(b)(4)(I), should be

31

## necessary if all other applicable portions of §115.241(b)(4) are met. Buc-ee's 

## further commented

that if the vacuum motors, vapor return lines, and other Stage II components are removed or

plugged, the replacement of existing hanging hardware over time, through normal attrition,

would not result in a negative environmental impact.



## The commission agrees that if the system has been properly decommissioned in

accordance with §115.241(b)(4) the continued use ofhanging hardware equipment

will not have an environmental impact. The commission has made a change to the

rule requirement in §115.241(b)(4)(1) to allow owners or operators ofGDFs to

continue using existing hanging hardware equipment such as hoses, nozzles,

swivels, and breakaway components until the equipment is replaced through

attrition or by August 31, 2018 at the latest.

TCC and TXOGA commented that the proposed rule states that the "owner/operator of every



## gasoline dispensing facility that has installed Stage II vapor controls shall complete

decommissioning of Stage II vapor controls no later than August 31, 2018." TCEQ's proposal

also states that equipment could be removed 30 days after the EPA approves the rule but no

later than August 31, 2018. However, 40 CFR §51.126(b) states, "States must submit and receive

EPA approval of a revision to their approved State Implementation Plans before removing Stage

II requirements that are contained therein." The commenters questioned how facilities could

proceed with decommissioning and comply with both state and federal regulations in the event

that the EPA does not act on the SIP revision incorporating this final rule prior to August 31,

2018.

As 

## the EPA has indicated in its guidance document, 

## Guidance on Removing Stage

II Gasoline Vapor Control Programs from State Implementation Plans and

32

## Assessing Comparable Measures, August 7, 2012, 

## and as the commission noted in

the proposed preamble, the EPA may take up to 18 

## months to approve the SIP and

rule submittal. However, the commission anticipates that approval will occur well

before the August 31, 2018 

## deadline. The TCEQ will continue to work with

stakeholders to ensure proper implementation of the decommissioning rules, in

addition to working with the EPA, which has indicated its willingness to proceed

with a parallel review process of the rulemaking and SIP revision. No change to the

rule has been made in 

## response to this comment.

33

# RECOMMENDATION

## SUBCHAPTER C: VOLATILE ORGANIC COMPOUND TRANSFER OPERATIONS

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

AT MOTOR VEHICLE FUEL DISPENSING FACILITIES



## Statutory Authority

The amendments and new section are adopted under Texas Water Code (TWC), §5.102,



## concerning General Powers, that provides the commission with the general powers to

carry out its duties; TWC, §5.103, 

## concerning Rules, that authorizes the commission to

adopt rules necessary to carry out its powers and duties; TWC, §5.105, 

## concerning

General Policy, that authorizes the commission by rule to establish and approve all

general policy of the commission; and under Texas Health and Safety Code (THSC),

§382.017, 

## concerning Rules, that authorizes the commission to adopt rules consistent

with the policy and purposes of the Texas Clean Air Act.

The amendments are also adopted under THSC, §382.002, 

## concerning Policy and

Purpose, that 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, that authorizes the

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

## concerning State Air

Control Plan, that authorizes the commission to prepare and develop a general,

comprehensive plan for the proper 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.

1

## The new section is also adopted under THSC, §382.016, 

## concerning Monitoring

Requirements; Examination of Records, that authorizes the commission to prescribe

reasonable requirements for the measuring and monitoring of air contaminant

emissions. The new section is also adopted under THSC, §382.019, 

## concerning methods

used to control and reduce emissions from land vehicles, 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 Standard (NAAQS) or upon a

adopted under FCAA, 42 

## USC, §§7401, 

## et seq., which requires states to submit SIP

revisions that specify the manner in which the NAAQS will be achieved and maintained

within each air quality control region of the state.

The amendments and new section implement THSC, §§382.002, 382.011, 382.012,

382.016,382.017,382.208 

## and FCAA, 42 

## USC, §§7401 

## et seq.

§115.240. 

## Stage II 

## Vapor Recovery Definitions and List of California Air

Resources Board Certified Stage II Equipment.

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

meanings, unless the context clearly indicates otherwise. Additional definitions for

terms used in this division are found in §§115.10, 101.1, 

## and 3.2 

## of this title (relating to

Definitions).

(1) 

## Decommission-- The permanent removal of the Stage II vapor control

equipment at a gasoline dispensing facility.

2

## (2) 

## Gasoline dispensing facility--A location that dispenses gasoline to

motor vehicles and includes retail, private, and commercial outlets.

(3) Major system replacement or modification:

(A) the repair or replacement of any stationary storage tank

equipped with a Stage II vapor recovery system;

(B) the replacement of an existing California Air Resources Board

(CARE) certified Stage II vapor recovery system with a system certified by CARE under

a different CARE Executive Order, or certified by an approved third-party;

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

attached to a stationary storage tank equipped with a Stage II vapor recovery system,

excluding the repair or replacement of piping which is accessible for such repair or

replacement without excavation or modification of the vapor recovery equipment; or

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

(4) Onboard refueling vapor recovery--A system on motor vehicles

designed to recover hydrocarbon vapors that escape during refueling.

3

## (5) Onboard refueling vapor recovery compatible--A Stage II vapor

recovery system certified by CARB or other acceptable independent third-party

evaluator, using test methods approved by the executive director, as on board refueling

vapor recovery (ORVR) compatible or a system listed in subsection (b) of this section,

either of which maintains a required minimum overall system efficiency of 95% (as

certified under third-party evaluation) while dispensing fuel without difficulty to both

ORVR-equipped and non ORVR-equipped vehicles.

( 6) Owner or operator of a motor vehicle fuel dispensing facility-- Any

person who owns, leases, operates, or controls the gasoline dispensing facility.

(b) The table contained in this subsection is a list of the Stage II vapor recovery

systems certified by a CARB Executive Order in effect as of January 1, 

## 2002.

Figure: 30 TAC §115.240(b) (No change to the figure as it currently exists in TAC.)

§115.241. 

## Decommissioning of Stage II Vapor Recovery Equipment.



## (a) The owner or operator of a gasoline dispensing facility may decommission

Stage II vapor recovery equipment beginning 30-calendar days after the effective date of

the United States Environmental Protection Agency's approval of the repeal of the Stage

II vapor recovery requirement and adoption of decommissioning requirements, in

compliance with the requirements of this section.

4

## (b) 

## Owners or operators of gasoline dispensing facilities decommissioning Stage

II vapor recovery equipment shall comply with the following:

(1) Intent to decommission notification.

(A) The owner or operator of a gasoline dispensing facility shall

submit written notification of intent to decommission the Stage II vapor recovery

equipment at least 30-calendar days prior to the beginning of any decommissioning

activity to the appropriate Texas Commission on Environmental Quality (TCEQ)

regional office and local government with jurisdiction where the gasoline dispensing

facility is located.

(B) The notice of intent to decommission must provide a projected

start date for decommissioning activity at the gasoline dispensing facility location. If



## decommissioning activities are not initiated within 180 calendar days after the date the

notice of intent to decommission is received by the TCEQ, the owner or operator of the

gasoline dispensing facility shall re-file the notice of intent to decommission for the

gasoline dispensing facility location.

(C) The notice of intent to decommission must include the following

information:

(i) gasoline dispensing facility name and location address;

5

## (ii) 

## owner name, address, and phone number;

(iii) operator name, address, and phone number;

(iv) on-site supervisor contractor name, address, phone

number, and Class A or Class A/B Underground Storage Contractor License number;

and

(v) Stage II vapor recovery system information including the

vapor recovery system manufacturer, the California Air Resources Board Executive

Order for the system, or other information necessary to identify the system.

(2) 

## Start of decommissioning notification. The owner or operator shall also

provide notification 24 to 72 hours prior to the beginning of any decommissioning

activity by either telephone, e-mail, or facsimile, to the appropriate TCEQ regional office

and local government with jurisdiction. The notification must include:

(A)the gasoline dispensing facility name and location address;

(B) owner name, address, and phone number;

(C) operator name, address, and phone number; and

6

## (D) planned decommissioning start date.

(3) Required decommissioning activities. The owner or operator of the

gasoline dispensing facility shall perform and complete all of the following

decommissioning activities, as applicable for the particular Stage II vapor recovery

system equipment installed at the gasoline dispensing facility:

(A) initiating safety procedures;

(B) relieving pressure in the tank ullage by removing all

pressure/vacuum vent valves;

(C) draining all liquid collection points;

(D) disconnecting all electrical components of the Stage II system

so that no electrical hazards are created including but not limited to all vapor pumping

or processing units and dispenser electronics;

(E) reprogramming the dispenser electronics to reflect that Stage II

Vapor Recovery is no longer in service;

(F) securely sealing off the below-grade vapor piping at a height

below the level of the base of the dispenser using only threaded plugs, threaded caps, or

glued fittings;

7

## (G) disconnecting and sealing off the vapor piping at the tank top if

this can be done without excavation and without interfering with the vent line using

only threaded plugs, threaded caps, or glue fittings;

(H) securely sealing the lower end of the vapor piping inside the

dispenser cabinet using only threaded plugs, threaded caps, or glue fittings;

(I) 

## replace through attrition or by August 31, 2018 the Stage II

hanging hardware including hoses, nozzles, swivels, and breakaway components with

conventional, industry-standard hanging hardware;

(J) 

## installing appropriate pressure/vacuum vent valve(s);

(K) removing any Stage II instructions from the dispenser cabinet;

(L) visually inspecting and verifying that the visible components of

the storage system are left in a condition that will reliably prevent the release of any

vapors or liquids from any components of the storage system;

(M) conducting the Texas test procedures TXP-102 

## (Vapor

Recovery Test Procedures Handbook, RG-399, December 2002) and recording results

on Form 102 indicating that the storage system is in a condition that will prevent leaking

of vapors or liquids prior to restoring the facility to operating status;

8

## (N) conducting the Texas test procedures TXP-103, Procedure 2,



## (Vapor Recovery Test Procedures Hand Book, RG-399, December 2002) recording

results on Form 103 indicating that the vent lines are functioning in a condition that vvill



## prevent the leaking of vapors or liquids prior to restoring the facility to operating status;

(0) 

## disconnecting the OPW VaporSavor or Arid Perm eater vapor

recovery systems if they are present on the Stage II system and sealing piping using only

threaded plugs, threaded caps, or glue fittings; and

(P) disconnecting the central vacuum motor if present on the Stage

II system and sealing piping using only threaded plugs, threaded caps, or glue fittings.

(4) Decommissioning completion notice. The owner or operator of the

gasoline dispensing facility shall notify in writing the TCEQ regional office and local

government with jurisdiction where the gasoline dispensing facility is located no later

than ten calendar days after completion of all decommissioning activity at the gasoline

dispensing facility. Notification must include:

(A) gasoline dispensing facility name and location address;

(B) owner name, address, and phone number;

(C) operator name, address, and phone number;

9

## (D) a certified and signed document with the name, address, and

the Class A or Class A/B license number of the on-site supervisor who directed the

decommissioning;

(E) name, address, and the Class A or Class A/B license number of

the on-site supervisor who directed the testing to ensure that no leaks have been

detected; and

(F) copies TX-102 and TX-103 Procedure test results.

(c) The owner or operator shall comply with the following decommissioning

deadlines.

(1) The owner or operator shall complete all decommissioning activity at a

gasoline dispensing facility location within 30 calendar days after the date

decommissioning activity was initiated.

(2) Owners or operators of all gasoline dispensing facilities, regardless of

location in the state, shall have completed the decommissioning of all Stage II vapor

recovery control equipment no later than August 31, 2018.

§115.242. 

## Control Requirements.

10

## (a) After May 16, 2012, 

## the owner or operator of a newly constructed gasoline

dispensing facility is no longer required to install Stage II vapor controls on its gasoline

dispensing equipment in any county in the state of Texas. Gasoline dispensing facilities

that did not have Stage II vapor controls as of May 16, 2012 

## due to a confirmed

exemption because oflow monthly throughput or low average monthly throughput are

not subject to the requirements of this division.

(b) 

## The owner or operator of every gasoline dispensing facility that has installed

Stage II vapor controls shall complete decommissioning of Stage II vapor controls no

later than August 31, 2018.



## (c) All owners or operators of gasoline dispensing facilities decommissioning

installed Stage II vapor controls shall comply with the requirements of §115.241 

## of this

title (relating to Decommissioning of Stage II Vapor Recovery Equipment).

(d) Until the owner or operator of a gasoline dispensing facility decommissions

Stage II vapor recovery controls that are installed at the gasoline dispensing facility, the

owner or operator shall be subject to the following requirements of this section as well

as the requirements of this division.

(1) 

## All installed Stage II vapor recovery systems must be certified by a

California Air Resources Board (CARB) Executive Order in effect as of January 1, 2002



## (as specified in §115.240(b) 

## of this title (relating to Stage II Vapor Recovery Definitions

and List of California Air Resources Board Certified Stage II Equipment)); or certified

11

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

## except that the executive

director reserves the right to continue to recognize any CARB Executive Orders

decertified after January 1, 2002; 

## or certified by an alternative procedure that meets the

requirements specified in §115.243 

## of this title (relating to Alternate Control

Requirements). In addition:

(A) Stage II vapor recovery balance systems that include vapor

check valves in a location other than the nozzle may not be installed;

(B) Stage II vapor recovery systems that include dual-hang (noncoaxial) hoses may not be installed; and

(C) all Stage II vapor recovery systems must be onboard refueling

vapor recovery (ORVR) compatible, as defined in §115.240 

## of this title.

(2) 

## All underground piping must be installed by a person holding a valid

License A as defined in §§334-401, 334-407, 

## and 334-424 

## of this title (relating to License

and Registration Required; Other Requirements for an Underground Storage Tank

Contractor; and Other Requirements for an On-Site Supervisor). Piping specifications

must be in compliance with the applicable CARB Executive Order(s) or third-party

certification for the Stage II vapor recovery system. For any facility newly constructed

after November 15, 1993, 

## or at any facility undergoing a major modification to the Stage

II vapor recovery system after November 15, 1993, 

## the following requirements apply

12

## where piping specifications are not provided in the applicable CARE Executive Order(s)

or third-party certification.

(A) All underground piping must be constructed of rigid material

and conform to the applicable portions of the technical standards for new piping defined

by §334-45(c) and (e) of this title (relating to Technical Standards for New Underground

Storage Tank Systems).

(B) Noncorrodible piping or cathodically protected metallic piping

must be used. In the event metallic piping is used, the applicable portions of the general

requirements for corrosion protection defined by §334-49(a)(1)- (5) and (c)(1)- (4) of

this title (relating to Corrosion Protection) apply.

(C) Minimum slope on vapor piping must be 1/8 inch per foot from

the dispenser to the storage tank. Piping installed after January 1, 2002 must not

include liquid collection points (condensate traps) unless the associated underground

storage tanks:

(i) 

## were installed prior to November 15, 1992; and

(ii) 

## are not at sufficient depth to allow for minimum slope

requirements.

13

## (D) Vapor piping on balance systems must be two inches or greater

in diameter, and when there are more than four fueling points connected to one vapor

line, the minimum vapor piping size must be three inches in diameter. For the purposes

of this paragraph, a single nozzle dispenser constitutes one fueling point and a multinozzle dispenser constitutes two fueling points.

(E) Riser piping must have a minimum inside diameter of one inch

and must slope towards the storage tank at all points. Riser piping is defined as the

predominantly vertically oriented vapor recovery piping that enters the gasoline

dispenser base, which connects the dispenser mounted piping with the buried vapor

recovery piping that leads to one or more storage tanks.

(F) If 

## a fire protection agency with jurisdiction requires a vapor

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

CARE-certified and/or Underwriters Laboratories listed for use in vapor recovery

systems.

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

system in proper operating condition, as specified by the manufacturer and/ or any

applicable CARB Executive Order(s) or third-party certification, and free of defects that

would impair the effectiveness of the system, including, but not limited to:

(A) absence or disconnection of any component that is a part of the

approved system;

14

## (B) a vapor hose that is crimped or flattened such that the vapor

passage is blocked, or the backpressure through the vapor system exceeds the value as

certified in the approved system's CARB Executive Order(s) or third-party certification;

(C) a nozzle boot that is torn in one or more of the following ways:

(i) a triangular-shaped or similar tear more than 1/2 

## inch on

a side;

(ii) a hole more than 1/2 

## inch in diameter; or

(iii) a slit more than one inch in length;

(D) for balance nozzles, a faceplate that is damaged such that the

capability to achieve a seal with a fill pipe interface is affected for a total of at least onefourth of the circumference of the faceplate;

(E) for booted nozzles in vacuum assist type systems, a flexible cone

for which a total of at least one-fourth of the cone is damaged or missing;

(F) a nozzle shut-off mechanism that malfunctions in any manner;

15

## (G) vapor return lines, including such components as swivels, antirecirculation valves, and underground piping, that malfunction, are blocked, or are

restricted such that the pressure decay and/ or dynamic backpressure through the line

exceeds the value as certified in the approved system's CARE Executive Order(s) or

third-party certification;

(H) a vapor processing or control unit that is inoperative or

defective;

(I) 

## a vacuum producing device that is inoperative or defective;

(J) 

## pressure/vacuum relief valves, vapor check valves, or Stage I dry

breaks that are inoperative or defective;

(K) a system monitor or printer that is malfunctioning or out of

paper;

(L) a nozzle, hose, break-away, or any other component that is not

approved for use with the certified vapor recovery system in use; and

(M) any equipment defect that is identified in the certification of an

approved system as substantially impairing the effectiveness of the system in reducing

refueling vapor emissions.

16

## (4) No gasoline leaks, as detected by sampling, sight, sound, or smell, exist

anywhere in the dispensing equipment or Stage II vapor recovery system.

(5) Upon identification of any of the defects described in paragraphs (3)

and (4) of this section, the owner or operator or his or her representative shall remove

from service all dispensing equipment for which vapor recovery has been impaired. The

impaired equipment must remain out of service until such time as the equipment has

been properly repaired, replaced, or adjusted, as necessary. Once repaired, the

equipment may be returned to service by the owner or operator or his or her

representative.

( 6) Upon identification of any of the defects described in paragraphs (3)

and (4) of this section, any inspector 'vith jurisdiction shall tag the impaired equipment

out-of-order. The "Out-of-Order" tag must state "use of this device is prohibited under

state law, and unauthorized removal of this tag or use of this equipment will constitute a

violation of the law punishable by a maximum civil penalty of up to $25,000 

## per day or

a maximum criminal penalty of 

# $so,ooo and/ or up to 180 

## days in jail." The impaired

equipment must remain out of service until such time as the equipment has been

properly repaired, replaced, or adjusted, as necessary. After repairs are completed and

verbal notification is given to the agency that originally tagged the equipment out of

service, the "Out-of-Order" tag may be removed by the owner or operator or the facility

representative and the equipment may be returned to service. Within ten days of placing

the equipment back in service, written notification that the equipment has been

returned to service must be provided by the owner or operator or the facility

17

## representative to the agency that originally tagged the equipment out-of-service. For the

purposes of this paragraph, "facility representative" has the meaning ascribed to it in

§115.248(1) 

## of this title (relating to Training Requirements).

(7) No person shall repair, modify, or permit the repair or modification of

the Stage II vapor recovery system or its components such that they are different from

their approved configuration, and only original equipment manufacturer (OEM) parts

or CARE-certified non-OEM aftermarket parts shall be used as replacement parts.

(8) No person shall tamper with, or permit tampering with, any part of the

Stage II vapor recovery system in a manner that would impair the operation or

effectiveness of the system.

(9) The owner or operator of a gasoline dispensing facility shall post

operating instructions conspicuously on the front of each gasoline dispensing pump

equipped with a Stage II vapor recovery system. These instructions, at a minimum,

include:

(A) a clear description of how to correctly dispense gasoline using

the system; and

(B) a warning against attempting to continue to refuel after initial

automatic shutoff of the system (an indication that the vehicle fuel tank is full).

18

## §115.243. Alternate Control 

## Requirements.

Alternate methods of complying with §115.242(d)(1) of this title (relating to

Control Requirements) may be approved by the executive director if:

(1) 

## emission reductions are demonstrated to be equivalent or greater than

those afforded by the requirements in §115.242( d)(1) of this title; and

(2) the Stage II vapor recovery system is capable of meeting the applicable

performance requirements prescribed in this division as certified by third-party

evaluation conducted by a qualified independent testing organization using a code or

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

nationally recognized agency, association, or independent testing laboratory.

§115.244. Inspection Requirements.



## The owner or operator of any gasoline dispensing facility subject to the control

requirements of this division shall conduct daily inspections of the Stage II vapor

recovery system for the defects specified in §115.242(d)(3) and (4) 

## of this title (relating

to Control Requirements) as follows.

(1) For all systems, the daily inspections must include the applicable

portions of §115.242(d)(3)(A)- (F), (H), and (K), and (4) of this title.

19

## (2) For assist systems that use a processor, indicating mechanisms

designed by the Stage II vapor recovery equipment manufacturer to verify proper

operation must be inspected daily. Examples of these indicating mechanisms include

flame detection sensors, remote (from the processor) visual or audible displays

indicating system operation, or other means as described in the applicable Executive

Order for the system.

(3) For all systems, the components listed in §115.242(d)(3)(J) of this title

must be inspected at least monthly.

(4) For all systems, the components listed in §115.242(d)(3)(G) of this title

must be inspected at least annually.

§115.245. Testing Requirements.



## Prior to the decommissioning deadline of August 31, 2018, owners or operators of

gasoline dispensing facilities that have not yet decommissioned Stage II vapor controls

in compliance with the requirements of this division shall repair, replace, or retain Stage

II vapor controls as follows.

(1) Within 30 days of installation, at least once every 36 months thereafter,

and upon major system replacement or modification, Stage II vapor recovery systems

must successfully meet the performance criteria proper to the system by successfully

completing the following testing requirements using the test procedures as found in the

20

## commission's Vapor Recovery Test Procedures Handbook (test procedures handbook)

(RG-399, November 2002).

(A) For balance and assist systems:

(i) the manifolding or interconnectivity of the vapor space

must be consistent with the Executive Order or third-party certification requirements

for the installed system (Texas test procedure TXP-101 or equivalent);

(ii) the sum of the vapor leaks in the system must not exceed

acceptable limits for the system as defined in the pressure decay test (Texas test

procedure TXP-102 or equivalent);

(iii) the maximum acceptable backpressure through a given

vapor path must not exceed the limits as found in the backpressure/liquid blockage test

applicable for the vapor path for the system (Texas test procedure TXP-103 or

equivalent); and

(iv) the maximum gasoline flow rate through the nozzle must

not exceed the limits found in the Executive Order or third-party certification for the

system (Texas test procedure TXP-104 or equivalent).

21

## (B) For bootless nozzle assist systems, the volume-to-liquid ratio

(V/L ratio) or air-to-liquid ratio (A/L ratio) must be within acceptable limits (Texas test

procedure TXP-106 or equivalent).

(C) Each system must meet minimum performance criteria specific

to the individual system as defined in the California Air Resources Board (CARB)

Executive Order or third-party certification. The criteria and test methods contained in

the test procedures handbook, specified in this paragraph, must take precedence for

applicable tests where performance criteria exist in both the Executive Order and the

test procedures handbook; otherwise, the Executive Order specific criteria must take

precedence.

(2) Verification of proper operation of the Stage II equipment must be

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

section at least once every 12 months. The verification must include all functional tests

that were required for the initial system test, except for TXP-101, Determination of

Vapor Space Manifolding of Vapor Recovery Systems at Gasoline Dispensing Facilities,

and TXP-103, Determination of Dynamic Pressure Performance (Dynamic BackPressure) of Vapor Recovery Systems at Gasoline Dispensing Facilities, which must be

performed at least once every 36 months.

(3) The owner or operator, or his or her representative, shall provide

written notification to the appropriate regional office and any local air pollution

program with jurisdiction of the testing date and time and of whom will conduct the

22

## test. The notification must be received by the appropriate regional office and any local

air pollution program with jurisdiction at least ten working days in advance of the test,

and the notification must contain the information and be in the format as found in the

test procedures handbook. Notification may take the form of a facsimile or telecopier

transmission, as long as the facsimile is received by the appropriate regional office and

any local air pollution program with jurisdiction at least ten working days prior to the

test and it is followed up within two weeks of the transmission with a written

notification. The owner or operator, or his or her representative, shall give at least 24-



## hour notification to the appropriate regional office and any local air pollution program

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

not anticipated prior to 24 

## hours before the scheduled test, the owner or operator, or his

or her representative, shall notify the appropriate regional office and any local air

pollution program with jurisdiction as soon in advance of the scheduled test as is

practicable.

(4) Minor modifications of these test methods may only be used if they

have been approved by the executive director.

(5) All required tests must be conducted either in the presence of a Texas

Commission on Environmental Quality or local program inspector with jurisdiction, or

by a person who is registered with the executive director to conduct Stage II vapor

recovery tests. The requirement to be registered begins on November 15, 1993, 

## or 60



## days after the executive director has established the registry, whichever occurs later. The

23

## executive director may remove an individual from the registry of testers for any of the

following causes:

(A) the executive director can demonstrate that the individual has

failed to conduct the test(s) properly in at least three separate instances; or

(B) the individual falsifies test results for tests conducted to fulfill

the requirements of this section.

(6) The owner or operator, or his or her representative, shall submit the

results of all tests required by this section to the appropriate regional office and any

local air pollution control program with jurisdiction vvithin ten working days of the

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

purposes of on-site recordkeeping, the Test Procedures Results Cover Sheet, properly

completed with the summary of the testing, is acceptable. The detailed results from each

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

test procedures handbook, must be submitted to the appropriate regional office and any

local air pollution control program with jurisdiction.

§115.246. Recordkeeping Requirements.



## (a) The owner or operator of any gasoline dispensing facility subject to the

control requirements of this division shall maintain the following records:

24

### (1) 

## a copy of the California Air Resources Board (CARB) Executive

Order(s) or third-party certification(s) for the Stage II vapor recovery system and any

related components installed at the facility;

(2) 

## a copy of any owner or operator request for executive director approval

under §115.243 

## of this title (relating to Alternate Control Requirements) and any

executive director approval issued under §115.243 

## of this title;

(3) a record of any maintenance conducted on any part of the Stage II

equipment, including a general part description, the date and time the equipment was

taken out of service, the date of repair or replacement, the replacement part

manufacturer's information, a general description of the part location in the system

(e.g., pump or nozzle number, etc.), and a description of the problem;

(4) proof of attendance and completion of the training specified in

§115.248 

## of this title (relating to Training Requirements), with the documentation of all

Stage II training for each employee to be maintained as long as that employee continues

to work at the facility;

(5) a record of the results of testing conducted at the gasoline dispensing

facility in accordance with the provisions specified in §115.245 

## of this title (relating to

Testing Requirements);

25

## ( 6) a record of the results of the daily inspections conducted at the

gasoline dispensing facility in accordance with the provisions specified in §115.244 of

this title (relating to Inspection Requirements);

(7) copies of all notifications and records sufficient to demonstrate

compliance with the applicable decommissioning steps listed in §115.241 of this title

(relating to Decommissioning of Stage II Vapor Recovery Equipment), including all

required test results, kept on site for five years following the completion of the

decommissioning activity.

(b) 

## All records required under subsection (a) of this section must be maintained

and made available as follows.

(1) Records required under subsection (a)(1), (2), (5), and (7) of this

section must be maintained until five years following the date of decommissioning

completion. Records required under subsection (a)(3), (4), and (6) of this section must

be maintained for at least two years.

(2) Records must be kept on site at facilities ordinarily manned during

business hours and made immediately available for review upon request by authorized

representatives of the executive director, United States Environmental Protection

Agency (EPA) or any local air pollution control program with jurisdiction; or

26

## (3) Records for gasoline dispensing facilities unmanned at the time of

inspection, must be made available at the site within 48 hours after being requested by

authorized representatives of the executive director, EPA, or any local air pollution

control program with jurisdiction.

27

## SUBCHAPTER C: VOLATILE ORGANIC COMPOUND TRANSFER

OPERATIONS

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

AT MOTOR VEHICLE FUEL DISPENSING FACILITIES

§§115.241, 115.247, 115.249



## Statutory Authority

The repealed sections are 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 the Texas

Health and Safety Code (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 repealed sections are also adopted under THSC, §382.002, 

## concerning

Policy and Purpose, which establishes the commission's purpose to safeguard the state's

air resources, consistent with the protection of public health, general welfare, and

physical property; §382.011, 

## concerning General Powers and Duties, which authorizes

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

## concerning State Air

Control Plan, which authorizes the commission to prepare and develop a general,

comprehensive plan for the control of the state's air; and §382.208, 

## concerning

Attainment Program, which authorizes the commission to develop and implement

transportation programs and other measures necessary to demonstrate attainment and

protect the public from exposure to hazardous air contaminants from motor vehicles.

The repealed sections implement THSC, §§382.002, 382.011, 382.012, 382.016,

382.017, 382.208 

## and FCAA, 42 

## USC, §§7401 

## et seq.

28

## §115.241. 

## Emissions Specifications.

§115.247. 

## Exemptions.

§115.249. 

## Counties and Compliance Schedules.

29

## TEXAS COMMISSION ON ENVIRONMENTAL QUALITY.··

ORDER ADOPTING NEW, .AM:ENDED AND REPEALED-RULES 

# AND

REVISIONS TO THE STATE IMPLEMENTATION PLAN



## Docket No. 2012-2362- 

## RUL



## Rule Project No. 2013-001-115-AI



## On October 9, 2013, 

## the Texas Commission on Environmental Quality (Commission),

during a public meeting, considered adoption of amended Sections 115.240, 115.242-

115.246, 

## new Section 115.241, 

## and repeal of Sections 115.241, 115.247, 

## and 115.249 

## of 30 

## TAC

Chapter 115 

## and corresponding revisions to the state implementation plan. Additionally, the

commission adopted the withdrawal from the United States Environmental Protection

Agency of the previous amendments to Section 115.247, 

## as adopted by the Commission on

June 27, 2007, 

## as a revision to the state implementation plan.

The Commission adopts these new, amended, and repealed sections, in Chapter 115, 

## Control

of 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; and corresponding revision[s] to the state implementation plan

(SIP). The adopted rulemaking revises Chapter 115, 

## Subchapter C, Division 4 to establish that

owners and operators of gasoline dispensing facilities are no longer required to install Stage

II equipment and to require the decommissioning of Stage II equipment at all gasoline

dispensing facilities. Under Tex. Health & 

## Safety Code Ann. §§ 

## 382.011, 382.012, 

## and

382.023 

## (Vern on 2011), 

## the Commission has the authority to control the quality of the state's

air and to issue orders consistent v\rith the policies and purposes of the Texas Clean Air Act,

Chapter 382 

## of the Tex. Health & 

## Safety Code. The proposed rules were published for

comment in the May 10, 2013 

## issue of the Texas Register (38 

## TexReg 2823).



## Pursuant to Tex. Health & 

## Safety Code Ann.§ 382.017 

## (Vernon 2001), 

## Tex. Gov't Code

Chapter 2001 

## (Vernon 2008), 

## and 40 

## Code of Federal Regulations§ 51.102, 

## and after proper

notice, the Commission conducted public hearings to consider the new, amended and

repealed rules and revrisions to the SIP. Proper notice included prominent advertisement in

the areas affected at least 30 

## days prior to the date of the hearings. Public hearings were held

in: El Paso on May 28, 2013; 

## Beaumont on May 30, 2013; 

## Houston on May 31, 2013;



## Arlington on June 3, 2013; 

## and Austin on June 4, 2013.

## 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 eontrol agencies. The public was invited to submit data, views, and

recommendations on the proposed new, amended and repealed rules and SIP revisions, in

addition to the vvithdrawal from the United States Environmental Protection Agency of the

previous amendments to Section 115.247, as adopted by the Commission on June 27, 2007, as

a revision to the state implementation plan, either orally or in V\Titing, at the hearings or during the comment period. Prior to the scheduled hearings, copies of the proposed new,

amended and repealed rules and SIP revisions were available for public inspection at the

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

Data, views, and recommendations of interested persons regarding the proposed new,

amended and repealed rules and SIP revisions, in addition to the ·withdrawal from the United

States Environmental Protection Agency of the previous amendments to Section 115.247, as adopted by the Commission on June 27, 2007, as a revision to the state implementation plan,

were submitted to the Commission during the comment period, and were considered by the

Commission as reflected in the analysis of testimony incorporated by reference to this Order.

The Commission finds that the analysis of testimony includes the names of all interested

groups or associations offering comment on the proposed new, amended, and repealed rules

and the SIP revisions in addition to the withdrawal from the United States Environmental

Protection Agency of the previous amendments to Section 115.24 7, as adopted by the

Commission on June 27, 2007, as a revision to the state implementation plan, and their

position concerning the same.

IT IS THEREFORE ORDERED BY THE COMMISSION that the new, amended, and

repealed rules and revisions to the SIP, in addition to the withdrawal from the United States

Environmental Protection Agency of the previous amendments to Section 115.247, as adopted

by the Commission on June 27, 2007, as a revision to the state implementation plan,

incorporated by reference to this Order are hereby adopted. The Commission further

authorizes staff to make any non-substantive revisions to the rules necessary to comply with



## Texas Register requirements. The adopted rules and the preamble to the adopted rules and

the revisions to the SIP are incorporated by reference in this Order as if set forth at length

verbatim in this Order.

IT IS FURTHER ORDERED BY THE COMMISSION that on behalf of the

Commission, the Chairman should transmit a copy of this Order, together wit}:l the adopted

rules and revisions to the SIP, to the Regional Administrator of EPA as a proposed revision to

the Texas SIP pursuant to the Federal Clean Air Act, 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 2008).

## 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.

Issued date: 

# DC T 

# 1 5 2013

TEXAS COMMISSION ON

ENVIRONMENTAL QUALITY

## ♦ ♦ ♦ This agency hereby certifies that the adoption has been reviewed

by legal counsel and found to be a valid exercise of the agency's

legal authority.

Filed with the Office of the Secretary of State on October 10,

2013.

TRD-201304506

Sara Waitt

General Counsel

Texas Department of Insurance

Effective date: January 1, 2014

Proposal publication date: April 19, 2013

For further information, please call: (512) 463-6327



## TITLE 30. ENVIRONMENTAL QUALITY



# PART 1. TEXAS COMMISSION ON

ENVIRONMENTAL QUALITY

CHAPTER 115. CONTROL OF AIR

POLLUTION FROM VOLATILE ORGANIC

COMPOUNDS

SUBCHAPTER C. VOLATILE ORGANIC

COMPOUND TRANSFER OPERATIONS

DIVISION 4. CONTROL OF VEHICLE

REFUELING EMISSIONS (STAGE II) AT

MOTOR VEHICLE FUEL DISPENSING

FACILITIES

The Texas Commission on Environmental Quality (TCEQ,

agency, commission) adopts the amendments to §§115.240,

115.242 - 115.246; new §115.241; and repeal of §§115.241,

115.247, and 115.249.

Sections 115.241, 115.245, and 115.246 are adopted with

changes to the proposed text. Amended §115.240 and

§§115.242 - 115.244 and the repeal of §§115.241, 115.247, and

115.249 are adopted without changes to the proposed text and,

therefore, will not be republished. The proposal was published

in the May 10, 2013, issue of the Texas Register (38 TexReg

2823).

The commission will submit the amendments, new section, and

repeals to the United States Environmental Protection Agency

(EPA) as a revision to the state implementation plan (SIP).

Background and Summary of the Factual Basis for the Adopted

Rules

The Federal Clean Air Act (FCAA) amendments of 1990 require

states to submit a revision to the SIP no later than November

15, 1992 that included a Stage II Vapor Recovery Program to

control gasoline vapors from the refueling of motor vehicles for

areas classified as moderate and above. A Stage II vapor re

covery SIP was first approved for Texas on October 16, 1992

and later revised on November 10, 1993. The Stage II Vapor

Recovery Program uses technology to prevent gasoline vapors

from escaping during refueling. Gasoline vapors are volatile or

ganic compounds (VOC) that can react with nitrogen oxides in the presence of sunlight to form ozone. As part of the control

strategy for ozone attainment, the EPA mandated that Stage

II refueling requirements apply to all public and private gaso

line dispensing facilities (GDFs) that dispense 10,000 gallons or

more of gasoline per month. The TCEQ applied a more strin

gent throughput standard in the ozone nonattainment counties

by requiring GDFs constructed after November 15, 1992 to in

stall Stage II vapor recovery regardless of throughput. Diesel

fuel dispensers were still exempt from the rule, and the rule also

left in place exemptions for equipment used exclusively for the

fueling of aircraft, watercraft, or implements of agriculture. The

original Stage II vapor recovery rules relied on the California Air

Resources Board (CARB) certification procedures for vapor re

covery equipment. The Stage II SIP revision was revised again

November 6, 2002, to require more frequent testing and more

on-site evaluation of testing performed on vapor recovery sys

tems at GDFs, as well as a phase-in schedule to retrofit or install

onboard refueling vapor recovery (ORVR) compatible Stage II

vapor recovery systems. Stage II vapor system efficiency was compromised by ORVR equipped vehicles unless the system

had ORVR compatible hardware. The Stage II SIP revision was again revised on March 23, 2005, to offer an expanded defi

nition for "ORVR compatible" that allowed for the use of other

technologies for controlling gasoline vapors. On June 27, 2007,

the commission adopted changes to 30 TAC Chapter 115 to add

language exempting facilities from installing Stage II equipment

if the facility could demonstrate that refueling at that facility in

volved a fleet of 95% or more ORVR-equipped vehicles. This

rule change was submitted as a SIP revision with no change to

the Stage II SIP narrative. The June 27, 2007, rule change is

still under consideration by the EPA and has not been approved.

The EPA expressed concerns that the language justifying the ex

emption needed to be more descriptive and explanatory. Upon

the adoption of the this rulemaking concerning decommission

ing, the commission will concurrently request withdrawal of the

June 27, 2007, rule change, regarding exemptions for facilities

that can demonstrate ORVR-equipped vehicle fleets that is cur

rently pending EPA review, since that exemption will no longer

be necessary.

FCAA, §202(a)(6) also provides that the EPA may revise or

waive the application of Stage II requirements if the EPA de

termines that ORVR is in widespread use through the motor

vehicle fleet. In the May 16, 2012, issue of the Federal Register

(77 FR 28772), the EPA published a final rulemaking for 40

Code of Federal Regulations (CFR) Part 51 determining that

vehicle ORVR technology is in widespread use for the purposes

of controlling motor vehicle refueling emissions throughout

the motor vehicle fleet. Vehicle ORVR systems are passive

systems that force gasoline vapors displaced from a vehicle's

fuel tank during refueling to be directed into a carbon canister

holding system within the vehicle and ultimately to the engine

where the vapors are consumed. The EPA required ORVR

systems to be phased in beginning with 1998 model-year

light-duty gasoline vehicles and as of 2006, all new light- and

medium-duty gasoline vehicles are equipped with ORVR. An

initial analysis using the EPA Motor Vehicle Emissions Simulator

2010a model shows that the benefits from ORVR alone will

be greater than the benefits from Stage II alone by the year

2010 in the Houston-Galveston-Brazoria (HGB) area, 2012 in

the Dallas-Fort Worth (DFW) area, 2013 in the Beaumont-Port

Arthur (BPA) area, and 2014 in the El Paso area. Vehicle ORVR

systems are monitored through a vehicle's on-board diagnostic

system making the system much more cost-effective than the

required monitoring and testing of Stage II systems.



## ADOPTED RULES October 25, 2013 38 TexReg 7453The determination that ORVR technology is in widespread use

allows the EPA to waive the requirement for states to implement

Stage II gasoline vapor recovery systems at GDFs in nonattain

ment areas classified as moderate and above for the ozone Na

tional Ambient Air Quality Standard (NAAQS). States that have

implemented a Stage II program may revise their Stage II SIP

demonstrating that the air quality will be maintained after remov

ing the Stage II equipment. The adopted rule revision would re

vise Chapter 115, Subchapter C, Division 4 to specify that own

ers or operators of new GDFs are not required to install Stage II

equipment and to require owners or operators of existing GDFs

in the current program areas to properly decommission Stage II

equipment. According to the EPA's guidance document: Guid

ance on Removing Stage II Gasoline Vapor Control Programs

from State Implementation Plans and Assessing Comparable

Measures, issued August 7, 2012, by the EPA's Office of Air

Quality Planning and Standards (EPA-457/B-12-001), the com

mission will need to demonstrate under FCAA, §110(l) that air

quality will not be affected by the decommissioning of, or failure

to install, Stage II equipment. This demonstration will be incor

porated into the corresponding SIP revision and is discussed fur

ther in the Demonstrating Noninterference under Federal Clean

Air Act, Section 110(l) portion of this preamble.

Demonstrating Noninterference under Federal Clean Air Act,

Section 110(l)

The Stage II program is a FCAA-specified VOC control strat

egy for ozone nonattainment areas designated as serious and

above. Under FCAA, §110(l), the EPA cannot approve a SIP re

vision if it would interfere with attainment of the NAAQS, reason

able further progress toward attainment, or any other applicable

requirement of the FCAA. The EPA has to approve a SIP revi

sion that removes or modifies Stage II gasoline refueling vapor

control measures if the EPA concludes that a state's submittal

provides that the removal of Stage II controls would not interfere

with attainment of the NAAQS, reasonable further progress, or

any other applicable requirement of the FCAA. The executive

director has performed an assessment of the exact amount of

benefit loss from removing Stage II and any effect on air qual

ity programs in the four Texas Stage II areas using the method

documented in the EPA's guidance referenced previously in this

preamble. An analysis for years 2012 through 2030 found that

for all years the losses represent less than one-half of one per

cent of the total VOC inventory. The benefit losses for removing

Stage II are small in 2012 and decrease rapidly as the percent

age of vehicles equipped with ORVR increase over time. The

assessment found that small changes to the VOC inventories

due to the removal of Stage II do not significantly change any of

the results of the Texas air quality plans. The detailed analysis,

which demonstrates that removal of Stage II requirements does

not interfere with attainment or maintenance of the NAAQS, is

included in the Stage II SIP revision, Stage II Vapor Recovery

Program State Implementation Plan Revision, proposed April 23,

2013, that corresponds with this rule revision (Project Number

2013-002-SIP-NR).

Section by Section Discussion

§115.240, Stage II Vapor Recovery Definitions and List of Cali

fornia Air Resources Board Certified Stage II Equipment

The commission adopts amendments to §115.240 by adding def

initions for "decommission" and "gasoline dispensing facility."

The term "decommission" is defined as the permanent removal

of all Stage II vapor recovery controls at a GDF. The term "gaso

line dispensing facility" is defined as a location that dispenses gasoline to motor vehicles and includes retail outlets and private

and commercial outlets. The definitions in this section have been

re-numbered as needed.

§115.241, Emission Specifications

The commission adopts the repeal of existing §115.241. The

emission specifications in §115.241 are no longer necessary be

cause installation of Stage II equipment will not be required at

any GDF upon adoption of this rulemaking. This section required

that the transfer of gasoline from a stationary storage container

to a motor vehicle fuel tank be allowed only if an approved Stage

II vapor recovery system had been installed at the GDF.

§115.241, Decommissioning of Stage II Vapor Recovery Equip

ment

The commission adopts new §115.241 to provide requirements

for the time line and process for decommissioning of Stage II

vapor recovery controls at GDFs. The new section establishes

that the decommissioning process may begin 30 calendar days

after the effective date of the EPA's approval of the repeal of

the Stage II vapor recovery requirement and the EPA's approval

of the corresponding SIP revision. The 30-calendar day time

frame allows TCEQ regional office staff, on-site supervisors, li

censed contractors, and owners and operators of GDFs to coor

dinate decommissioning activities. The commission adopts this

delayed implementation for decommissioning because the EPA

has stipulated that Stage II controls cannot be removed until the

EPA has approved a State's Stage II decommissioning rule and

SIP revisions.

The new language includes several independent notification re

quirements and procedural activities that must occur during the

decommissioning process. Owners and operators of GDFs that

decommission their Stage II vapor recovery equipment are re

quired to provide three different notifications to ensure that de

commissioning activities may be appropriately enforced. First,

owners and operators must notify the appropriate TCEQ regional

office and local government with jurisdiction where the GDF is lo

cated of their intent to decommission at least 30-calendar days

prior to the beginning of the decommissioning activity. The no

tification of intent to decommission provides information on the

GDF location, the owner and operator of the GDF, the on-site su

pervisor who will be directing the decommissioning activities, the

type of system installed at the GDF, as well as a projected start

date for decommissioning activity. On-site supervisors are gen

erally the responsible individuals involved in the Stage II vapor

recover equipment installation and decommissioning and carry underground storage tank Class A or Class A/B licenses. If

decommissioning activities are not initiated within 180 calendar

days after the date the notice of intent to decommission is re

ceived by the TCEQ, the owner or operator of the GDF must

re-file the notice of intent to decommission for the GDF location.

This will provide additional flexibility for GDF locations that en

counter problems with contractors or other logistical problems,

while ensuring that TCEQ and local government staff are kept

appropriately informed of decommissioning activity.

The second notification required by the section is a notification

24 - 72 hours prior to start of decommissioning activity to en

able commission or local government staff to schedule site visits

to ensure appropriate enforcement of decommissioning activity.

The last notification owners and operators are required to sub

mit to the TCEQ regional office and local government with ju

risdiction where the GDF is located is a decommissioning com

pletion notification required no later than 10 calendar days after



## 38 TexReg 7454 October 25, 2013 Texas Registerdecommissioning activity is completed. This decommissioning

completion notification provides for the submittal of information

regarding appropriate certifications and license information for

the on-site supervisor who supervised testing and required test

results demonstrating that no leaks were detected. The adopted

rules include additional detail as to the content of these notices

to ensure compliance with the decommissioning requirements.

The section also describes requirements for decommissioning,

including the proper procedures for disconnecting and capping

parts of the system and a list of test procedures to ensure the

prevention of leaking vapors and fluids. The TCEQ will develop

a checklist: Stage II Decommissioning Checklist and Submittal

Form, which will include all applicable decommissioning require

ments included in this rulemaking. The requirements were de

veloped using the Decommissioning Stage II Vapor Recovery

Piping section in the Petroleum Equipment Institute's (PEI) pub

lication, Recommended Practices for Installation and Testing of

Vapor Recovery Systems at Vehicle-Fueling Sites, PEI/RP300

- 09, as a reference. PEI's practices are generally accepted and

regarded by industry stakeholders as the appropriate methods

for successfully decommissioning the equipment. The adopted

rules revised proposed requirements to allow hanging hardware

equipment to be replaced through attrition or by August 31, 2018,

at the latest. The adopted rules also corrected the publication

date from November 2002 to December 2002 of the Vapor Re

covery Test Procedures Hand Book, RG-399, that is used for

conducting the TXP-102 and TXP-103 test procedures.

Lastly, new subsection (c) establishes deadlines for the decom

missioning processes. In response to comments, the commis

sion adopts subsection (c)(1) that requires that all decommis

sioning activity at a specific GDF location be completed within

30-calendar days after the date decommissioning activity was

initiated. Additionally, the commission adopts subsection (c)(2)

requires that all GDFs in the state complete all decommissioning

activity no later than August 31, 2018.

§115.242, Control Requirements

The commission adopts revisions to §115.242 providing that af

ter May 16, 2012, the owner or operator of newly constructed

GDF is no longer required to install Stage II vapor controls on its

gasoline dispensing equipment. May 16, 2012, is the date the

EPA issued its final rule determining that vehicle ORVR technol

ogy is in widespread use for purposes of controlling motor vehi

cle refueling emissions throughout the motor vehicle fleet. Since

the commission is mandating decommissioning of all Stage II

equipment by August 31, 2018, requiring owners or operators of

new GDFs to install Stage II equipment would provide little to no

measurable benefit for air quality. GDFs that did not have Stage

II vapor controls as of May 16, 2012, due to a confirmed exemp

tion because of low monthly throughput or low average monthly

throughput are not subject to the requirements of this section.

Owners and operators of GDFs with installed Stage II equipment

have the option of decommissioning Stage II equipment in com

pliance with the requirements adopted in §115.241 or continuing

to operate with the current Stage II equipment until the manda

tory removal date of August 31, 2018. The mandatory removal

date was established after stakeholders requested that the com

mission provide five to six years prior to decommissioning to al

low for Stage II equipment installed at the time of the EPA's rule

being finalized to be used through its expected life use. The

mandatory date has also been established since finding compli

ant replacement equipment will be more difficult and the number

of licensed testers will be reduced making it difficult for owners and operators of GDFs with Stage II equipment to comply with

existing requirements. The TCEQ requested comment on the

mandatory decommissioning date of August 31, 2018, and com

ment was received supporting the end date by which all Stage II

vapor control equipment must be appropriately removed.

The adopted language also states that if an owner or operator

elects to retain the Stage II vapor controls, the GDF will continue

to meet the requirements of this division until the Stage II vapor

controls are properly removed from the GDF. To address the vol

untary installation of Stage II equipment at GDFs not located in

the affected counties, new language was incorporated requiring

all owners of GDFs, regardless of location in the state, to re

move all Stage II equipment by August 31, 2018. The adopted

language replaces repealed language requiring all GDFs in the

counties listed in §115.249 to comply with this division. This rule

revision provides that no GDF in any county would have Stage

II equipment installed or operational after August 31, 2018. Vol

untary Stage II installations at GDFs outside of affected counties

have not been included in any modeling for past SIP activities

and have no impact on the SIP revision associated with this rulemaking.

The adopted revisions to §115.242 delete paragraphs (10) - (12),

because GDFs no longer need to meet these requirements.

Paragraph (10) corresponded to exemptions in §115.247, which

was also repealed. Paragraph (11) related to the installation of

approved systems if CARB certification of a previously installed

system was revoked. Finally, paragraph (12) required facilities

to notify the regional office with jurisdiction of any Stage II vapor

recovery system installation.

§115.243, Alternate Control Requirements

The adopted revision to §115.243 updates references to

§115.242, which was revised to authorize the decommissioning

of Stage II vapor controls.

§115.244, Inspection Requirements

The adopted revision to §115.244 updates references to

§115.242, which was revised to authorize the decommissioning

of Stage II vapor controls and updates a reference to gasoline

dispensing facilities to correspond to the new definition of this

term.

§115.245, Testing Requirements

The commission adopts amended §115.245 to require that prior

to the decommissioning deadline of August 31, 2018, owners or

operators of GDFs that elect to install, repair, replace, or retain

the Stage II vapor controls must comply with the requirements of

this section. The adopted language clarifies that owners or op

erators of GDFs must continue to maintain and test the facility's

Stage II vapor control equipment to ensure it is working properly

and capturing gasoline vapors.

§115.246, Recordkeeping Requirements

The commission adopts amended §115.246 to update refer

ences to gasoline dispensing facilities, to correspond to the

new definition of this term, and to provide that records sufficient

to demonstrate compliance with decommissioning require

ments be kept on site for five years following the completion

of decommissioning activities. Although other recordkeeping

requirements in this subchapter are required to be maintained

for two years or indefinitely, the high level of decommissioning

activity will likely require inspections and investigations beyond

a two-year time frame.



## ADOPTED RULES October 25, 2013 38 TexReg 7455In response to comments to clarify the recordkeeping require

ments, adopted §115.246 is restructured and streamlined to

avoid confusion. Records that must be maintained, proposed

as §115.246(1) - (7), are provided under adopted subsection (a)

and include the same content requirements as proposed. The

records retention schedule and availability requirements, pro

posed as §115.246(8), are adopted as subsection (b). Adopted

§115.246(b)(1) specifies that the records required under sub

section (a)(1), (2), (5), and (7) must be maintained until five

years following the date of completion of decommissioning.

Records required under subsection (a)(7) are those records

associated with the decommission process. The records spec

ified under subsection (a)(1), (2), and (5) are existing record

requirements that were previously required to be maintained in

definitely. However, in response to comments, the adopted rule

is revised to require that the records under subsection (a)(1),

(2), and (5) be maintained until five years following the date of

completion of decommissioning. Adopted §115.246(b)(1) also

specifies that records required under subsection (a)(3), (4), and

(6) must be maintained for two years as was proposed. The

records contained in §115.246(a)(3), (4), and (6) are existing

record requirements that are tied to specific events, and records

generated from these events will cease once decommissioning

is completed. Therefore, owners or operators will only be

required to maintain the records under §115.246(a)(3), (4), and

(6) for two years following the most recent event preceding

decommissioning.

The current records availability requirements, proposed as §115.246(8)(A) and (B), are adopted as §115.246(b)(2) and (3).

The adopted records availability requirements are substantively

unchanged from the proposed language.

§115.247, Exemptions

The commission repeals §115.247 because exemptions from

the Stage II requirements are longer applicable to this division.

Since Stage II is no longer required, the exemptions for GDFs

that dispense gasoline to aircraft, watercraft, and agricultural

equipment; GDFs that began construction before November 15,

1992 and dispense less than 10,000 gallons a month; and GDFs

that refuel a motor fleet that is 95% ORVR equipped are no longer necessary. The adopted language in §115.242(a) makes

clear that GDFs that did not have Stage II vapor controls installed

as of May 16, 2012, are not subject to this division. Therefore,

GDFs that qualified for these exemptions are not subject to the

rule by the repeal of this exemption section.

§115.249, Counties and Compliance Schedules

The commission repeals §115.249 because upon EPA approval

of the Stage II Vapor Recovery Program SIP Revision, Stage II

Vapor Recovery Program State Implementation Plan Revision,

proposed April 23, 2103, Stage II will no longer be required at

GDFs in Brazoria, Chambers, Collin, Dallas, Denton, El Paso,

Fort Bend, Galveston, Harris, Hardin, Jefferson, Liberty, Mont

gomery, Orange, Tarrant, and Waller Counties. Additionally, the

compliance date of April 1, 2007, for GDFs to become ORVR

compatible has passed.

Final Regulatory Impact Determination

The commission reviewed the adopted rulemaking in light of the

regulatory impact analysis requirements of Texas Government

Code, §2001.0225 and determined that the rulemaking does not

meet the definition of a "major environmental rule" as defined

in that statute. A "major environmental rule" means a rule, the

specific intent of which is 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.

Additionally, the rulemaking does not meet any of the four ap

plicability criteria for requiring a regulatory impact analysis for a major environmental rule, which are listed in Texas Government

Code, §2001.0225(a). Texas Government Code, §2001.0225

applies only to a major environmental rule, the result of which

is to: 1) exceed a standard set by federal law, unless the rule

is specifically required by state law; 2) exceed an express re

quirement of state law, unless the rule is specifically required by

federal law; 3) exceed a requirement of a delegation agreement

or contract between the state and an agency or representative

of the federal government to implement a state and federal pro

gram; or 4) adopt a rule solely under the general powers of the

agency instead of under a specific state law.

The adopted rulemaking amends §§115.240, 115.242 - 115.246,

creates new §115.241, and repeals §§115.241, 115.247, and

115.249. The revisions to Chapter 115 specify that new GDFs

are not required to install Stage II equipment and allow existing

GDFs in the current program areas to properly decommission

Stage II equipment.

FCAA, §182(b)(3) provides that for ozone nonattainment areas

classified as serious or above, states must revise their SIP to re

quire all owners or operators of gasoline dispensing systems op

erating after November 15, 1990 to install a system for gasoline

vapor recovery of emissions from the fueling of motor vehicles.

FCAA, §202(a)(6) requires the EPA to implement requirements

for ORVR. Both Stage II and vehicle ORVR are types of emission

control systems that capture fuel vapors from vehicle gas tanks

during refueling. FCAA, §202(a)(6) also provides that the EPA

may revise or waive the application of Stage II requirements if it

determines that ORVR is in widespread use throughout the mo

tor vehicle fleet. As mentioned previously in this preamble, the

EPA published final rulemaking for 40 CFR Part 51 determining

that vehicle ORVR technology is in widespread use for the pur

poses of controlling motor vehicle refueling emissions through

out the motor vehicle fleet on May 16, 2012 (77 FR 28772). This

action allows the EPA to waive the requirement for states to

implement Stage II gasoline vapor recovery systems at GDFs

in nonattainment areas classified as serious and above for the

ozone NAAQS.

The adopted rulemaking implements requirements of 42 United

States Code (USC), §7410, which requires states to adopt a SIP

that provides for the implementation, maintenance, and enforce

ment of the NAAQS in each air quality control region of the state.

While 42 USC, §7410 generally does not require specific pro

grams, methods, or reductions in order to meet the standard,

the SIP must include enforceable emission limitations and other

control measures, means, or techniques (including economic in

centives such as fees, marketable permits, and auctions of emis

sions rights), as well as schedules and timetables for compliance

as may be necessary or appropriate to meet the applicable re

quirements of this chapter (42 USC, Chapter 85). The provi

sions of the FCAA recognize that states are in the best posi

tion to determine what programs and controls are necessary or appropriate in order to meet the NAAQS. This flexibility allows

states, affected industry, and the public, to collaborate on the

best methods for attaining the NAAQS for the specific regions in

the state. Even though the FCAA allows states to develop their

own programs, this flexibility does not relieve a state from devel

oping a program that meets the requirements of 42 USC, §7410.



## 38 TexReg 7456 October 25, 2013 Texas RegisterStates are not free to ignore the requirements of 42 USC, §7410

and must develop programs to assure that their contributions to

nonattainment areas are reduced so that these areas can be

brought into attainment on schedule.

The adopted rulemaking implements the EPA's rulemaking that

was published May 16, 2012 (77 FR 28772), for 40 CFR Part 51,

determining that vehicle ORVR technology is in widespread use

for the purposes of controlling motor vehicle refueling emissions

throughout the motor vehicle fleet and waiving the requirement

for states to implement Stage II gasoline vapor recovery sys

tems at GDFs in nonattainment areas classified as serious and

above for the ozone NAAQS. Revisions to Chapter 115 specify

ing that owners of new GDFs are not required to install Stage II

equipment and to allow existing owners of GDFs in the current

program areas to properly decommission Stage II equipment is

a necessary and required component of developing the SIP for

nonattainment areas as required by 42 USC, §7410.

The requirement to provide a fiscal analysis of proposed regu

lations in the Texas Government Code was amended by Sen

ate Bill (SB) 633 during the 75th Legislature, 1997. The intent

of SB 633 was to require agencies to conduct a regulatory im

pact analysis of extraordinary rules. These rules are identified

in the statutory language as major environmental rules that will

have a material adverse impact and will exceed a requirement

of state law, federal law, or a delegated federal program, or are adopted solely under the general powers of the agency. With

the understanding that this requirement would seldom apply, the

commission provided a cost estimate for SB 633 concluding that

"based on an assessment of rules adopted by the agency in the

past, it is not anticipated that the bill will have significant fiscal

implications for the agency due to its limited application." The

commission also noted that the number of rules that would re

quire assessment under the provisions of the bill was not large.

This conclusion was based, in part, on the criteria set forth in the

bill that exempted proposed rules from the full analysis unless

the rule was a major environmental rule that exceeds a federal

law.

As discussed earlier in this preamble, the FCAA does not al

ways require specific programs, methods, or reductions in or

der to meet the NAAQS; thus, states must develop programs

for each area contributing to nonattainment to help ensure that

those areas will meet the attainment deadlines. Because of the

ongoing need to address nonattainment issues and to meet the

requirements of 42 USC, §7410, the commission routinely pro

poses and adopts SIP rules. The legislature is presumed to un

derstand this federal scheme. If each rule proposed for inclusion

in the SIP was considered to be a major environmental rule that

exceeds federal law, then every SIP rule would require the full

regulatory impact analysis contemplated by SB 633. This con

clusion is inconsistent with the conclusions reached by the com

mission in its cost estimate and by the Legislative Budget Board

(LBB) in its fiscal notes. Since the legislature is presumed to

understand the fiscal impacts of the bills it passes and that pre

sumption is based on information provided by state agencies and

the LBB, the commission believes that the intent of SB 633 was only to require the full regulatory impact analysis for rules that are extraordinary in nature. While the SIP rules will have a broad im

pact, the impact is no greater than is necessary or appropriate

to meet the requirements of the FCAA. For these reasons, rules

adopted for inclusion in the SIP fall under the exception in Texas

Government Code, §2001.0225(a) because they are required by

federal law. The commission has consistently applied this construction to

its rules since this statute was enacted in 1997. Since that

time, the legislature has revised the Texas Government Code

but left this provision substantially unamended. It is presumed

that "when an agency interpretation is in effect at the time the

legislature amends the laws without making substantial change

in the statute, the legislature is deemed to have accepted the

agency's interpretation." Central Power & Light Co. v. Sharp,

919 S.W.2d 485, 489 (Tex. App. Austin 1995), writ denied with

per curiam opinion respecting another issue, 960 S.W.2d 617

(Tex. 1997); Bullock v. Marathon Oil Co., 798 S.W.2d 353, 357

(Tex. App. Austin 1990, no writ). Cf. Humble Oil & Refining

Co. v. Calvert, 414 S.W.2d 172 (Tex. 1967); Dudney v. State

Farm Mut. Auto Ins. Co., 9 S.W.3d 884, 893 (Tex. App. Austin

2000); Southwestern Life Ins. Co. v. Montemayor, 24 S.W.3d

581 (Tex. App. Austin 2000, pet. denied); and Coastal Indust.

Water Auth. v. Trinity Portland Cement Div., 563 S.W.2d 916

(Tex. 1978).

The commission's interpretation of the regulatory impact anal

ysis requirements is also supported by a change made to the

Texas Administrative Procedure Act (APA) by the legislature in

1999. In an attempt to limit the number of rule challenges based

upon APA requirements, the legislature clarified that state agen

cies are required to meet these sections of the APA against the

standard of "substantial compliance." The legislature specifically

identified Texas Government Code, §2001.0225 as falling under

this standard. The commission has substantially complied with

the requirements of Texas Government Code, §2001.0225.

The specific intent of the adopted rulemaking allows owners of

new GDFs not to install Stage II equipment and allows owners of

existing GDFs in the current program areas to properly decom

mission Stage II equipment. The EPA may grant the removal

and waiver of Stage II equipment due to the widespread use

of ORVR in the overall vehicle fleet. The adopted rules per

mit these changes to occur in Texas. As explained previously

in this preamble, vehicles equipped with ORVR technology pro

vide greater pollution reduction benefits than Stage II vapor con

trol systems and are more cost-effective. The adopted rulemak

ing does not exceed a standard set by federal law or exceed

an express requirement of state law. No contract or delegation

agreement covers the topic that is the subject of this adopted

rulemaking. Therefore, this adopted rulemaking is not subject to

the regulatory analysis provisions of Texas Government Code,

§2001.0225(b) because although the rulemaking meets the def

inition of a "major environmental rule," it does not meet any of

the four applicability criteria for a major environmental rule.

The commission invited public comment regarding the draft reg

ulatory impact analysis determination during the public comment

period. No comments were received on the draft regulatory im

pact analysis and no changes were made.

Takings Impact Assessment

The commission evaluated the adopted rulemaking and per

formed an assessment of whether Texas Government Code,

Chapter 2007 is applicable. The specific purpose of the adopted

rulemaking is to specify that new GDFs are not required to install

Stage II equipment and to allow existing GDFs in the current

program areas to properly decommission Stage II equipment

as required by 42 USC, §7410. FCAA, §182(b)(3) provides that

for certain nonattainment areas, states must revise their SIP to

require all owners or operators of GDFs operating after Novem

ber 15, 1990 to install a system for gasoline vapor recovery of

emissions from the fueling of motor vehicles. FCAA, §202(a)(6)



## ADOPTED RULES October 25, 2013 38 TexReg 7457also required the EPA to implement requirements for vehicle

ORVR. Both Stage II and vehicle ORVR are types of emission

control systems that capture fuel vapors from vehicle gas tanks

during refueling. FCAA, §202(a)(6) also provided that the EPA

may revise or waive the application of Stage II requirements if it

determined that ORVR was in widespread use throughout the

motor vehicle fleet.

As mentioned previously in the preamble, the EPA finalized a rulemaking on May 16, 2012 (77 FR 28772), for 40 CFR Part

51, determining that vehicle ORVR technology is in widespread

use for the purposes of controlling motor vehicle refueling emis

sions throughout the motor vehicle fleet. This action allows the

EPA to waive the requirement for states to implement Stage

II gasoline vapor recovery systems at GDFs in nonattainment

areas classified as serious and above for the ozone NAAQS.

The EPA may grant the removal and waiver of Stage II equip

ment due to the widespread use of ORVR in the overall vehicle

fleet. The adopted rulemaking and corresponding SIP revision

permits these changes to occur in Texas. As explained previ

ously in the preamble, vehicles equipped with ORVR technology

provide greater pollution reduction benefits than Stage II control

systems and are more cost-effective. Texas Government Code,

§2007.003(b)(4), provides that Texas Government Code, Chap

ter 2007 does not apply to this rulemaking because it is an action

reasonably taken to fulfill an obligation mandated by federal law.

In addition, the commission's assessment indicates that Texas

Government Code, Chapter 2007 does not apply to these rules

because this action is taken in response to a real and substan

tial threat to public health and safety; that is designed to signifi

cantly advance the health and safety purpose; and that does not

impose a greater burden than is necessary to achieve the health

and safety purpose. Thus, this action is exempt under Texas

Government Code, §2007.003(b)(13). The adopted rules fulfill

the FCAA requirement to decommission Stage II equipment in

nonattainment areas. These revisions will result in VOC emis

sion reductions in ozone nonattainment areas, which may con

tribute to the timely attainment of the ozone standard and re

duced public exposure to VOC emissions. Consequently, the

adopted rulemaking meets the exemption criteria in Texas Gov

ernment Code, §2007.003(b)(4) and (13). For these reasons,

Texas Government Code, Chapter 2007 does not apply to this

rulemaking.

Consistency with the Coastal Management Program

The commission reviewed the adopted rulemaking and found it

identified in the Coastal Coordination Act Implementation Rules

31 TAC §505.11(b)(2) or (4), relating to rules subject to the

Coastal Management Program, and will, therefore, require that

goals and policies of the Texas Coastal Management Program

(CMP) be considered during the rulemaking process. 31 TAC

§505.11(b)(2) applies only to air pollutant emissions, on-site

sewage disposal systems, and underground storage tanks. 31

TAC §505.11(b)(4) applies to all other actions.

The commission reviewed this rulemaking for consistency with

the CMP goals and policies in accordance with the regulations

of the Coastal Coordination Council Advisory Committee and de

termined that the revisions are consistent with CMP goals and

policies, will not have direct or significant adverse effect on any

coastal natural resource areas; will not have a substantive effect

on commission actions subject to the CMP; and promulgation

and enforcement of the revisions will not violate (exceed) any

standards identified in the applicable CMP goals and policies. The commission invited public comment regarding the consistency with the coastal management program during the public

comment period. No comments were received and no changes

were made to the assessment.

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 commission offered public hearings in: El Paso on May 28,

2013; Beaumont on May 30, 2013; Houston on May 31, 2013;

Arlington on June 3, 2013; and Austin on June 4, 2013. The

comment period closed on June 10, 2013. Oral comments were

received from Tarrant County. The commission received written comments from Arid Technologies, Buc-ee's Ltd. (Buc-ee's),

Texas Chemical Council (TCC), Texas Food and Fuel Association (TFFA), and Texas Oil and Gas Association (TxOGA).

TxOGA incorporated TFFA's comments by reference. Buc-ee's,

TCC, TFFA, and TxOGA expressed overall support for the proposed rule change, and Arid Technologies submitted comments

opposing the rule change. Changes to the rule were suggested

by all six commenters.

General Comments

Arid Technologies questioned whether the TCEQ considered

storage tank breathing loss in a non-Stage II environment.

The commission focused modeling in the associated SIP revision to the effects of Stage II decommissioning only in areas that

have Stage II requirements in place in Texas as recommended

in the EPA guidance document, Guidance on Removing Stage

II Gasoline Vapor Control Programs from State Implementation

Plans and Assessing Comparable Measures, August 7, 2012.

Breathing losses from storage tanks are a separate source of

emissions from refueling and are not included as of the assessment on the decommissioning of Stage II. The EPA guidance

document did not include a requirement for including storage

tank breathing losses. No change to the rule has been made

in response to this comment.

Arid Technologies suggested that enhancing Stage II systems

will provide better emission reductions from refueling and storage tank emissions.

The ORVR systems on vehicles are designed to replace Stage

II vapor recovery systems for capturing the emissions during vehicle refueling and are already required by federal law, as discussed elsewhere in this preamble. Once ORVR systems are

in widespread use, the Stage II systems become redundant and

more costly to maintain. Any future improvements to emission

control systems for vehicle refueling will involve improving the effectiveness of these ORVR systems currently found in vehicles.

In addition, the commission did not include Stage II vapor control

enhancement as part of the proposed Stage II decommissioning

rule revision. Consideration of Stage II vapor recovery enhancements is outside the scope of this rulemaking. No change to the

rule has been made in response to this comment.



## 38 TexReg 7458 October 25, 2013 Texas RegisterTFFA expressed support for most aspects of the changes to the

Stage II Vapor Recovery Program. TFFA offered assistance in

developing an owner/operator checklist to facilitate compliance.

The commission appreciates TFFA's support and will continue to

work with all stakeholders to ensure successful implementation

of decommissioning activities.

TFFA commented that it supports the continued inspection and

appropriate testing for Stage II vapor recovery systems that con

tinue in service until the final decommissioning deadline and

would like for the inspection and testing activities to be counted

towards SIP credit until such time as those systems are finally

removed.

The commission has developed the rule and SIP revisions for the

implementation of decommissioning of Stage II vapor recovery

to ensure that emission reduction plans are not affected in any

area. Using the EPA's Guidance on Removing Stage II Gasoline

Vapor Control Programs from State Implementation Plans and

Assessing Comparable Measures, August 7, 2012, the commis

sion determined that the inspection, testing, and maintenance

of Stage II vapor recovery equipment that continues in service

until August 31, 2018, will prevent a harmful gap in area-wide

emissions control and will not affect compliance with the NAAQS.

Neither the guidance nor the Stage II SIP provide for continuing

of SIP credit once ORVR widespread use has been determined

and decommissioning of Stage II vapor control equipment has

begun. No changes have been made as a result of this com

ment.

TCC and TxOGA requested that TCEQ provide clarification as to

when the reports required under §115.247(2) are no longer ap

plicable to these exempt facilities, and in particular, whether the

report required for 2013 is still required after the rule is finalized.

As stated in the EPA's final rulemaking (77 FR 28772), the EPA

further evaluated Stage II exemptions for facilities with through

puts of less than 10,000 gallons per month and determined the

exemption rate is still appropriate. To ensure the control require

ments outlined in the Stage II SIP are not affected, the commis

sion will require facilities to continue to submit reports until the

rule revision becomes effective. No change was made in re

sponse to this comment.

Impact of Decommissioning

Arid Technologies stated that decommissioning Stage II vapor

control equipment and relying solely on ORVR technology will in

crease VOC and hazardous air pollutants (HAP) emissions and

that motorists in Environmental Justice areas will bear the brunt

of increased emissions. The commenter provided a copy of a

recent study conducted by Meszler Engineering and submitted

to the Maryland Department of Environment that reviews the im

pact of removing Stage II vapor control equipment to support its

claim.

The commission performed an assessment on the removal of

Stage II vapor control equipment and included this assessment

along with the calculations required by the EPA guidance for as

sessing the removal of Stage II vapor control programs in the

Stage II SIP revision, Chapter 12: Demonstrating Noninterfer

ence Under Federal Clean Air Act, Section 110(l). The SIP revi

sion includes an assessment of the effects of decommissioning

Stage II equipment on each nonattainment area with Stage II re

quirements in the state. The assessments were developed using

local specific data from each affected area and local variables as required by EPA guidance. The assessment also included a de

termination of the emissions benefits of both Stage II and ORVR

systems, an assessment of widespread use of ORVR, and the

effects on air quality plans in all areas with Stage II vapor equip

ment requirements. The TCEQ found that by 2018 ORVR rule

penetration will range from 93 to 95% and from 97 to 98% by

2030 in the four affected areas in Texas.

Each HAP emitted by motor vehicles is a subset of the VOC

emissions. Since the VOC emissions from vehicle refueling are effectively controlled by ORVR systems, HAP emissions are also

controlled.

In reviewing the Maryland study and other information provided

by the commenter, the commission has determined that there

are substantial differences between the Maryland assessment

and Texas specific data. Additionally, some elements of the

EPA's guidance document addressing removal of Stage II pro

grams discussed elsewhere in this preamble make the direct

comparison of the Texas assessment and Maryland study inef

fective. Differences include: Uncontrolled emission factors of

7.01 pounds (lbs)/100 gallons (gals) in the Maryland study ver

sus a range of 7.47 to 8.51 lbs/100 gals for Texas; ORVR Pen

etration of 85% in 2013 in the Maryland study versus 85% to

89% in 2014, 94% to 96% for 2020, and 96% to 98% for 2030

for Texas; and, Stage II efficiency of 75% in the Maryland study

versus 60% for Texas as recommended by EPA guidance. The

results of the Texas specific analyses best assess the Stage II

removal in the Texas.

In addition, and as stated earlier in this preamble, the EPA pub

lished finalized rulemaking for 40 CFR Part 51 determining that

vehicle ORVR technology is in widespread use for the purposes

of controlling motor vehicle refueling emissions throughout the

motor vehicle fleet (77 FR 28772). The EPA provided in the final

rulemaking for the Widespread Use for Onboard Refueling Va

por Recovery and Stage II Waiver (77 FR 28781) that decommis

sioning of Stage II systems will not have disproportionally high

and adverse human health or environmental effects on minority

or low-income populations because it does not directly affect the

level of protection provided to human health or the environment

under the EPA's NAAQS for ozone. Lastly, the study provided by

the commenter did not provide specific information regarding the

potential for emission increases in Texas from reliance on ORVR;

nor did the study provide any information regarding increased

impact to citizens in Environmental Justice areas other than an

assertion regarding a lower population of ORVR equipped vehi

cles. No revision to the rule has been made in response to this

comment.

Arid Technologies questioned whether the TCEQ considered the

impact of emissions generated during fueling of tanks which do

not have ORVR technology, such as motorcycles, boats, and gas

cans.

The EPA guidance which includes analyses for ORVR wide

spread use requires the assessment to include an evaluation

of vehicles that are not equipped with ORVR systems. The

TCEQ assessment included: 1) the distribution of vehicles

into categories of vehicles equipped and not equipped with

ORVR including motorcycles; and, 2) the age distribution

of ORVR-equipped vehicles to capture the percent of these

vehicles that do not have ORVR systems. The percent of

ORVR-equipped vehicles will increase for each future analysis

year as the pre-ORVR vehicles are retired from the fleet. Data

to assess the amount of fuel dispensed to non-road vehicles is

not available, and the inclusion of non-road sources is not part

of the Stage II vapor control system analysis and not included



## ADOPTED RULES October 25, 2013 38 TexReg 7459in the EPA's guidance of the decommissioning of Stage II vapor

control equipment. No revision to the rule has been made in

response to this comment.

Decommissioning Requirements

TFFA comments that once a Stage II system has been removed

they know of no reason an entity should maintain records relat

ing to the decommissioned system. The commenter indicated

that the TCEQ database will continue to show the facilities sta

tus as a former Stage II facility and asked if there is a purpose

for the information beyond showing this history. TFFA expressed

opposition to keeping any records on-site beyond an immediate

use, or for an "indefinite period of time," as stated in the pro

posed rule. TFFA suggests amending §115.246 to clarify that

the records, specifically CARB Executive Orders, must be kept

on-site indefinitely or until such time as the system has been de

commissioned in accordance with §115.242.

The commission agrees that §115.246 of the proposed rule re

quires clarification. Recordkeeping retention requirements in the

existing section vary depending on the type of record. The com

mission has revised the proposal language within §115.246 by

placing proposed §115.246(1) - (7) requirements under adopted

subsection (a). The records retention schedule and availability

requirements proposed as §115.246(8) are now adopted under

adopted subsection (b). The records specified under subsec

tion (a)(1), (2), and (5) are existing records that were required

to be maintained indefinitely. The adopted rule will require these

records be maintained for five years following the date of decom

missioning. The records contained in §115.246(a)(3), (4), and

(6) are existing records that must be maintained for two years;

however, these records are related to events that will cease once decommissioning has been completed. The adopted rule will re

quire that these records be maintained for two years following the

most recent event preceding decommissioning.

Buc-ee's requested clarification whether the notification required

by §115.241(b)(1) may be submitted prior to the 30 calendar day

window between the EPA approval of the Stage II decommis

sioning rule and the effective date, if there is effectively a mini

mum 60-day waiting period from the date of EPA approval before

decommissioning activities may commence.

The commission apologizes for confusion on this issue. There is

not a 60-day waiting period from the effective date of the EPA's

approval. Owners or operators of GDFs may begin submitting

notices of intent to decommission on or after the EPA's effective

date of their approval of the adopted rulemaking and SIP revi

sion. Owners or operators of GDFs may begin decommission

ing activities 30 calendar days after the submittal of notice of in

tent to decommission. These 30 calendar days will support plan

ning and review activities and provide for adequate compliance

oversight. As discussed in the Section by Section portion of the

accompanying rulemaking preamble, the commission changed

language in adopted §115.241(a) to make clear that owners and

operators could begin decommissioning activities 30 calendar

days after the effective date of EPA's effective date of their ap

proval of the adopted rulemaking and SIP revision.

TCC and TXOGA commented that requiring operators to notify

TCEQ: 1) 30 days before decommissioning; 2) 24 - 72 hours

before decommissioning; and 3) ten days after decommission

ing is excessive. TCC recommended that TCEQ streamline the

notice requirements associated with decommissioning. Specif

ically, TCC and TXOGA recommended that TCEQ delete the

electronic notice requirements. The notification requirements are necessary to maintain commu

nication between facilities, TCEQ regional staff, and the on-site

supervisors and licensed contractors that will be performing the

decommissioning and testing of equipment at the facilities. The

notifications required prior to the commencement of decommis

sioning activities provide TCEQ notification that the facility plans

to begin decommissioning activities. In addition, the 24 - 72

hour notification provides the facility an opportunity to extend or change decommissioning plans in the event of weather or equip

ment issues. The ten-day notification after the decommissioning

is necessary to provide notice to the TCEQ that all Stage II equip

ment has been removed, that testing has occurred, and that the

final close out activities have occurred. Notifications of these

types and durations are typically seen during construction activi

ties and are necessary not only to maintain communication but to

promote and enhance compliance oversight. No changes have

been made in response to this comment.

TCC and TXOGA commented that §115.241(b)(3)(E), which re

quires the owner/operator to provide "Stage II vapor recovery

system information" is not sufficiently clear and requested that

the requirement for "Stage II vapor recovery system information"

be struck from the notice requirements.

The commission agrees with the commenter that this phrase

could be unclear and has made a change to the rule to clarify

that the "Stage II vapor recovery system information" as refer

enced in §115.241(b)(3)(E) includes the vapor recovery system

manufacturer and the CARB Executive Order for that system or

other information necessary to provide identifying system infor

mation.

TCC and TXOGA commented that proposed §115.241(b)(5)(A)

states that notification after decommissioning must include "a

certified and signed document with the name, address, and li

cense number of the licensed contractor who performed the de

commissioning," and requested clarification on the licensing cre

dentials of the contractor required by this rule.

The commission has made a change to the proposed rule to

clarify the licensing credentials of the contractor who performed

the decommissioning. The commission changed "licensed con

tractor" to "on-site supervisor" and requested license numbers

for their Class A or Class A/B licenses in §115.241(b)(3)(D) and

(4)(D) and (E).

Decommissioning Process

Tarrant County suggested a transition period of relaxed enforce

ment while entities are in the process of decommissioning Stage

II tanks.

The commission has determined that a relaxation of enforce

ment activity regarding compliance with the testing and inspec

tion of Stage II vapor control equipment is not appropriate. The

adopted rule provides for adequate notification and provides fa

cilities a five-year period to plan for and implement decommis

sioning activities. The TCEQ is committed to working with facility

owners to resolve unplanned issues on an individual basis. No

revision to the rule has been made in response to this comment.

TFFA commented in support of the final date of decommissioning

deadline of August 31, 2018, since this will allow those owners

who wish to fully maximize Stage II equipment's useful life and

minimize the cost to those companies that have multiple sites

with Stage II equipment installed. This date should also allow

a more orderly transition to the industry for other issues such

as daily and weekly inspections, budgeting for decommissioning



## 38 TexReg 7460 October 25, 2013 Texas Registercosts, and other ancillary issues related to the use, maintenance,

and operation of Stage II vapor recovery systems.

The commission appreciates TFFA's support. Section 115.245

of the adopted rulemaking has been modified to clarify that GDF

owners and operators who elect to continue with Stage II sys

tems until August 31, 2018, must also continue to repair, replace,

and maintain Stage II vapor control equipment.

Buc-ee's urged the TCEQ to quickly implement the rule revisions

necessary to allow for decommissioning of Stage II systems.

Currently, facilities are delaying replacing existing dispensers

because they do not want to purchase equipment that will need

to be removed through the decommissioning process.

The commission appreciates Buc-ee's support and recognizes

the difficulties inherent in transitioning from current Stage II re

quirements and testing. The commission will continue to work

with all stakeholders to ensure that proper decommissioning ac

tivities are performed upon the EPA's approval. Additionally, the

EPA has agreed to a parallel review process of this rulemak

ing change and accompanying Stage II SIP revision, which may expedite the EPA's approval and allow for entities to decommis

sion as quickly as possible. In order to provide additional clarity

and avoid a time gap between the EPA's effective date of the

approval of the adopted rulemaking and SIP revision and the

date that decommissioning activities may begin at GDFs, the

commission revised language in proposed §115.241(a) to clarify

the effective date of when GDF owners or operators could begin

decommissioning Stage II vapor control equipment at their site.

Additionally, §115.41(b)(1)(A) requires that notice of intent to de

commission be submitted to the commission at least 30 days

prior to the beginning of any decommissioning activity.

Buc-ee's questioned the time frame for when the various require

ments of §115.241(b)(4)(A) - (P) should be completed. As cur

rently written, the proposed rule did not stipulate when various

components of the decommissioning process should be accom

plished. Buc-ee's proposed that §115.241(b)(4) be modified to

read as follows: "The owner or operator shall perform and com

plete all of the following decommissioning activities, as applica

ble, within 30 days of the initiation of decommissioning."

The commission agrees that the language in the proposed

§115.241(b)(4)(A) - (P) requires clarification to provide for a

deadline by which the decommissioning activities must be

completed. In order to avoid the situation of owners or opera

tors of GDFs partially decommissioning and being required to

continue testing and inspection of remaining Stage II equipment

at the site, the commission developed the rules requiring that

owners and operators of GDFs would decommission entirely

once the activity was begun. The commission revised proposed

subsection (c) to establish deadlines for the decommissioning

processes. The commission adopts subsection (c)(1), which

requires all decommissioning activity at a specific GDF location

be completed within 30 calendars days after the date decom

missioning activity was initiated. Additionally, the commission

adopts subsection (c)(2), which requires that all owners or

operators of GDFs in the state complete all decommissioning

activity no later than August 31, 2018.

Buc-ee's questioned why immediate replacement of the Stage II

hanging hardware with conventional, industry-standard hanging

hardware, required by §115.241(b)(4)(I), should be necessary if

all other applicable portions of §115.241(b)(4) are met. Buc-ee's

further commented that if the vacuum motors, vapor return lines,

and other Stage II components are removed or plugged, the re

placement of existing hanging hardware over time, through nor

mal attrition, would not result in a negative environmental impact.

The commission agrees that if the system has been properly de

commissioned in accordance with §115.241(b)(4) the continued

use of hanging hardware equipment will not have an environ

mental impact. The commission has made a change to the rule

requirement in §115.241(b)(4)(I) to allow owners or operators of

GDFs to continue using existing hanging hardware equipment

such as hoses, nozzles, swivels, and breakaway components

until the equipment is replaced through attrition or by August 31,

2018, at the latest.

TCC and TXOGA commented that the proposed rule states that

the "owner/operator of every gasoline dispensing facility that has

installed Stage II vapor controls shall complete decommission

ing of Stage II vapor controls no later than August 31, 2018."

TCEQ's proposal also states that equipment could be removed

30 days after the EPA approves the rule but no later than August

31, 2018. However, 40 CFR §51.126(b) states, "States must

submit and receive EPA approval of a revision to their approved

State Implementation Plans before removing Stage II require

ments that are contained therein." The commenters questioned

how facilities could proceed with decommissioning and comply

with both state and federal regulations in the event that the EPA

does not act on the SIP revision incorporating this final rule prior

to August 31, 2018.

As the EPA has indicated in its guidance document, Guidance

on Removing Stage II Gasoline Vapor Control Programs from

State Implementation Plans and Assessing Comparable Mea

sures, August 7, 2012, and as the commission noted in the pro

posed preamble, the EPA may take up to 18 months to approve

the SIP and rule submittal. However, the commission anticipates

that approval will occur well before the August 31, 2018, dead

line. The TCEQ will continue to work with stakeholders to ensure

proper implementation of the decommissioning rules, in addition

to working with the EPA, which has indicated its willingness to

proceed with a parallel review process of the rulemaking and

SIP revision. No change to the rule has been made in response

to this comment.



### 30 TAC §§115.240 - 115.246

Statutory Authority

The amendments and new section are adopted under Texas Water Code (TWC), §5.102, concerning General Powers, that provides the commission with the general powers to carry out its duties; TWC, §5.103, concerning Rules, that authorizes the commission to adopt rules necessary to carry out its powers and du

- ties; TWC, §5.105, concerning General Policy, that authorizes

the commission by rule to establish and approve all general pol

icy of the commission; and under Texas Health and Safety Code

(THSC), §382.017, concerning Rules, that authorizes the com

mission to adopt rules consistent with the policy and purposes

of the Texas Clean Air Act.

The amendments are also adopted under THSC, §382.002, con

cerning Policy and Purpose, that 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, that

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

§382.012, concerning State Air Control Plan, that authorizes the

commission to prepare and develop a general, comprehensive

plan for the proper control of the state's air; and §382.208, con

cerning Attainment Program, which authorizes the commission



## ADOPTED RULES October 25, 2013 38 TexReg 7461to 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 new section is also adopted under THSC, §382.016, con

cerning Monitoring Requirements; Examination of Records, that

authorizes the commission to prescribe reasonable require

ments for the measuring and monitoring of air contaminant

emissions. The new section is also adopted under THSC,

§382.019, concerning methods used to control and reduce

emissions from land vehicles, 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 Standard (NAAQS) or upon a adopted under FCAA,

42 USC, §§7401, et seq., which requires states to submit SIP

revisions that specify the manner in which the NAAQS will be

achieved and maintained within each air quality control region

of the state.

The amendments and new section implement THSC,

§§382.002, 382.011, 382.012, 382.016, 382.017, 382.208 and

FCAA, 42 USC, §§7401 et seq.

§115.241. Decommissioning of Stage II Vapor Recovery Equipment.

(a) The owner or operator of a gasoline dispensing facility may

decommission Stage II vapor recovery equipment beginning 30-calendar days after the effective date of the United States Environmental

Protection Agency's approval of the repeal of the Stage II vapor recovery requirement and adoption of decommissioning requirements,

in compliance with the requirements of this section.

(b) Owners or operators of gasoline dispensing facilities decommissioning Stage II vapor recovery equipment shall comply with

the following:

(1) Intent to decommission notification.

(A) The owner or operator of a gasoline dispensing facility shall submit written notification of intent to decommission the

Stage II vapor recovery equipment at least 30-calendar days prior to

the beginning of any decommissioning activity to the appropriate Texas

Commission on Environmental Quality (TCEQ) regional office and local government with jurisdiction where the gasoline dispensing facility

is located.

(B) The notice of intent to decommission must provide

a projected start date for decommissioning activity at the gasoline dispensing facility location. If decommissioning activities are not initiated

within 180 calendar days after the date the notice of intent to decommission is received by the TCEQ, the owner or operator of the gasoline

dispensing facility shall re-file the notice of intent to decommission for

the gasoline dispensing facility location.

(C) The notice of intent to decommission must include

the following information:

(i) gasoline dispensing facility name and location

address;

(ii) owner name, address, and phone number;

(iii) operator name, address, and phone number;

(iv) on-site supervisor contractor name, address,

phone number, and Class A or Class A/B Underground Storage

Contractor License number; and

(v) Stage II vapor recovery system information including the vapor recovery system manufacturer, the California Air Resources Board Executive Order for the system, or other information

necessary to identify the system.

(2) Start of decommissioning notification. The owner or

operator shall also provide notification 24 to 72 hours prior to the beginning of any decommissioning activity by either telephone, e-mail,

or facsimile, to the appropriate TCEQ regional office and local government with jurisdiction. The notification must include:

(A) the gasoline dispensing facility name and location

address;

(B) owner name, address, and phone number;

(C) operator name, address, and phone number; and

(D) planned decommissioning start date.

(3) Required decommissioning activities. The owner or

operator of the gasoline dispensing facility shall perform and complete

all of the following decommissioning activities, as applicable for the

particular Stage II vapor recovery system equipment installed at the

gasoline dispensing facility:

(A) initiating safety procedures;

(B) relieving pressure in the tank ullage by removing all

pressure/vacuum vent valves;

(C) draining all liquid collection points;

(D) disconnecting all electrical components of the

Stage II system so that no electrical hazards are created including but

not limited to all vapor pumping or processing units and dispenser

electronics;

(E) reprogramming the dispenser electronics to reflect

that Stage II Vapor Recovery is no longer in service;

(F) securely sealing off the below-grade vapor piping at

a height below the level of the base of the dispenser using only threaded

plugs, threaded caps, or glued fittings;

(G) disconnecting and sealing off the vapor piping at

the tank top if this can be done without excavation and without interfering with the vent line using only threaded plugs, threaded caps, or glue fittings;

(H) securely sealing the lower end of the vapor piping

inside the dispenser cabinet using only threaded plugs, threaded caps,

or glue fittings;

(I) replace through attrition or by August 31, 2018,

the Stage II hanging hardware including hoses, nozzles, swivels, and

breakaway components with conventional, industry-standard hanging

hardware;

(J) installing appropriate pressure/vacuum vent

valve(s);

(K) removing any Stage II instructions from the dispenser cabinet;

(L) visually inspecting and verifying that the visible

components of the storage system are left in a condition that will reliably prevent the release of any vapors or liquids from any components

of the storage system;

(M) conducting the Texas test procedures TXP-102

(Vapor Recovery Test Procedures Handbook, RG-399, December

2002) and recording results on Form 102 indicating that the storage

system is in a condition that will prevent leaking of vapors or liquids

prior to restoring the facility to operating status;



## 38 TexReg 7462 October 25, 2013 Texas Register(N) conducting the Texas test procedures TXP-103,

Procedure 2, (Vapor Recovery Test Procedures Hand Book, RG-399,

December 2002) recording results on Form 103 indicating that the

vent lines are functioning in a condition that will prevent the leaking

of vapors or liquids prior to restoring the facility to operating status;

(O) disconnecting the OPW VaporSavor or Arid Permeater vapor recovery systems if they are present on the Stage II system

and sealing piping using only threaded plugs, threaded caps, or glue

fittings; and

(P) disconnecting the central vacuum motor if present

on the Stage II system and sealing piping using only threaded plugs,

threaded caps, or glue fittings.

(4) Decommissioning completion notice. The owner or operator of the gasoline dispensing facility shall notify in writing the

TCEQ regional office and local government with jurisdiction where the

gasoline dispensing facility is located no later than ten calendar days

after completion of all decommissioning activity at the gasoline dispensing facility. Notification must include:

(A) gasoline dispensing facility name and location address;

(B) owner name, address, and phone number;

(C) operator name, address, and phone number;

(D) a certified and signed document with the name, address, and the Class A or Class A/B license number of the on-site supervisor who directed the decommissioning;

(E) name, address, and the Class A or Class A/B license

number of the on-site supervisor who directed the testing to ensure that

no leaks have been detected; and

(F) copies TX-102 and TX-103 Procedure test results.

(c) The owner or operator shall comply with the following decommissioning deadlines.

(1) The owner or operator shall complete all decommissioning activity at a gasoline dispensing facility location within 30 calendar days after the date decommissioning activity was initiated.

(2) Owners or operators of all gasoline dispensing facilities, regardless of location in the state, shall have completed the decommissioning of all Stage II vapor recovery control equipment no

later than August 31, 2018.

§115.245. Testing Requirements.

Prior to the decommissioning deadline of August 31, 2018, owners or

operators of gasoline dispensing facilities that have not yet decommissioned Stage II vapor controls in compliance with the requirements of

this division shall repair, replace, or retain Stage II vapor controls as

follows.

(1) Within 30 days of installation, at least once every 36

months thereafter, and upon major system replacement or modification, Stage II vapor recovery systems must successfully meet the performance criteria proper to the system by successfully completing the

following testing requirements using the test procedures as found in the

commission's Vapor Recovery Test Procedures Handbook, (RG-399,

November 2002).

(A) For balance and assist systems:

(i) the manifolding or interconnectivity of the vapor

space must be consistent with the Executive Order or third-party certification requirements for the installed system (Texas test procedure

TXP-101 or equivalent); (ii) the sum of the vapor leaks in the system must

not exceed acceptable limits for the system as defined in the pressure decay test (Texas test procedure TXP-102 or equivalent);

(iii) the maximum acceptable backpressure through

a given vapor path must not exceed the limits as found in the backpressure/liquid blockage test applicable for the vapor path for the system

(Texas test procedure TXP-103 or equivalent); and

(iv) the maximum gasoline flow rate through the

nozzle must not exceed the limits found in the Executive Order or third-party certification for the system (Texas test procedure TXP-104

or equivalent).

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

acceptable limits (Texas test procedure TXP-106 or equivalent).

(C) Each system must meet minimum performance criteria specific to the individual system as defined in the CARB Executive Order or third-party certification. The criteria and test methods

contained in the test procedures handbook specified in this paragraph

must take precedence for applicable tests where performance criteria

exist in both the Executive Order and the test procedures handbook;

otherwise, the Executive Order specific criteria must take precedence.

(2) Verification of proper operation of the Stage II equipment must be performed in accordance with the test procedures referenced in this paragraph at least once every 12 months. The verification

must include all functional tests that were required for the initial system test, except for TXP-101, Determination of Vapor Space Manifolding of Vapor Recovery Systems at Gasoline Dispensing Facilities, and

TXP-103, Determination of Dynamic Pressure Performance (Dynamic

Back-Pressure) of Vapor Recovery Systems at Gasoline Dispensing Facilities, which must be performed at least once every 36 months.

(3) The owner or operator, or his or her representative, shall

provide written notification to the appropriate regional office and any

local air pollution program with jurisdiction of the testing date and time

and of whom will conduct the test. The notification must be received

by the appropriate regional office and any local air pollution program

with jurisdiction at least ten working days in advance of the test, and

the notification must contain the information and be in the format as

found in the test procedures handbook. Notification may take the form

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

received by the appropriate regional office and any local air pollution

program with jurisdiction at least ten working days prior to the test and

it is followed up within two weeks of the transmission with a written

notification. The owner or operator, or his or her representative, shall

give at least 24-hour notification to the appropriate regional office and

any local air pollution program with jurisdiction if a scheduled test is

cancelled. In the event that the test cancellation is not anticipated prior

to 24 hours before the scheduled test, the owner or operator, or his or

her representative, shall notify the appropriate regional office and any

local air pollution program with jurisdiction as soon in advance of the

scheduled test as is practicable.

(4) Minor modifications of these test methods may only be

used if they have been approved by the executive director.

(5) All required tests must be conducted either in the presence of a Texas Commission on Environmental Quality or local program inspector with jurisdiction, or by a person who is registered with

the executive director to conduct Stage II vapor recovery tests. The requirement to be registered begins on November 15, 1993, or 60 days

after the executive director has established the registry, whichever occurs later. The executive director may remove an individual from the

registry of testers for any of the following causes:



## ADOPTED RULES October 25, 2013 38 TexReg 7463

## ♦ ♦ ♦ (A) the executive director can demonstrate that the individual has failed to conduct the test(s) properly in at least three separate

instances; or

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

(6) The owner or operator, or his or her representative, shall

submit the results of all tests required by this section to the appropriate

regional office and any local air pollution control program with jurisdiction within ten working days of the completion of the test(s) using

the format specified in the test procedures handbook. For purposes of

on-site recordkeeping, the Test Procedures Results Cover Sheet, properly completed with the summary of the testing, is acceptable. The

detailed results from each test conducted along with a properly completed summary sheet, as provided for in the test procedures handbook,

must be submitted to the appropriate regional office and any local air

pollution control program with jurisdiction.

§115.246. Recordkeeping Requirements.

(a) The owner or operator of any gasoline dispensing facility

subject to the control requirements of this division shall maintain the

following records:

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

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

recovery system and any related components installed at the facility;

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

director approval under §115.243 of this title (relating to Alternate Control Requirements) and any executive director approval issued under

§115.243 of this title;

(3) a record of any maintenance conducted on any part of

the Stage II equipment, including a general part description, the date

and time the equipment was taken out of service, the date of repair or replacement, the replacement part manufacturer's information, a general description of the part location in the system (e.g., pump or nozzle

number, etc.), and a description of the problem;

(4) proof of attendance and completion of the training specified in §115.248 of this title (relating to Training Requirements), with

the documentation of all Stage II training for each employee to be maintained as long as that employee continues to work at the facility;

(5) a record of the results of testing conducted at the gasoline dispensing facility in accordance with the provisions specified in

§115.245 of this title (relating to Testing Requirements);

(6) a record of the results of the daily inspections conducted

at the gasoline dispensing facility in accordance with the provisions

specified in §115.244 of this title (relating to Inspection Requirements);

(7) copies of all notifications and records sufficient to

demonstrate compliance with the applicable decommissioning steps

listed in §115.241 of this title (relating to Decommissioning of Stage

II Vapor Recovery Equipment), including all required test results, kept

on site for five years following the completion of the decommissioning

activity.

(b) All records required under subsection (a) of this section

must be maintained and made available as follows.

(1) Records required under subsection (a)(1), (2), (5), and

(7) of this section must be maintained until five years following the date

of decommissioning completion. Records required under subsection

(a)(3), (4), and (6) of this section must be maintained for at least two

years. (2) Records must be kept on site at facilities ordinarily

manned during business hours and made immediately available for

review upon request by authorized representatives of the executive

director, United States Environmental Protection Agency (EPA) or

any local air pollution control program with jurisdiction; or

(3) Records for gasoline dispensing facilities unmanned at

the time of inspection, must be made available at the site within 48

hours after being requested by authorized representatives of the executive director, EPA, or any local air pollution control program with jurisdiction.

This agency hereby certifies that the adoption has been reviewed

by legal counsel and found to be a valid exercise of the agency's

legal authority.

Filed with the Office of the Secretary of State on October 11,

2013.

TRD-201304509

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: October 31, 2013

Proposal publication date: May 10, 2013

For further information, please call: (512) 239-2141



### 30 TAC §§115.241, 115.247, 115.249

Statutory Authority

The repeal 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 the

Texas Health and Safety Code (THSC), §382.017, concerning

Rules, which authorizes the commission to adopt rules consis

tent with the policy and purposes of the Texas Clean Air Act.

The repeal is also adopted under THSC, §382.002, concern

ing 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 repeal implements THSC, §§382.002, 382.011, 382.012,

382.016, 382.017, 382.208, and FCAA, 42 USC, §§7401, et seq.

This agency hereby certifies that the adoption has been reviewed

by legal counsel and found to be a valid exercise of the agency's

legal authority.

Filed with the Office of the Secretary of State on October 11,

2013.

TRD-201304510



## 38 TexReg 7464 October 25, 2013 Texas Register