Approval and Promulgation of Air Quality Implementation Plans; Texas; Revisions To Control Volatile Organic Compound Emissions

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is taking direct final action to approve Texas State Implementation Plan (SIP) revisions. The revisions pertain to regulations to control volatile organic compound (VOC) emissions from solvent degreasing processes, cutback asphalt, and motor vehicle fuel dispensing facilities. The revisions are consistent with requirements for Reasonably Available Control Technology (RACT) and also expand the coverage to the Early Action Compact (EAC) areas of Austin-San Marcos and San Antonio. We are approving the revisions pursuant to sections 110, 116 and part D of the Federal Clean Air Act (CAA). The control of VOC emissions will help to attain and maintain the national ambient air quality standards (NAAQS) for ozone in Texas. This approval will make the revised regulations Federally enforceable.

DATES:

This rule is effective on May 31, 2005 without further notice, unless EPA receives relevant adverse comment by April 28, 2005. If EPA receives such comment, EPA will publish a timely withdrawal in the Federal Register informing the public that this rule will not take effect.

ADDRESSES:

Submit your comments, identified by Regional Materials in EDocket (RME) ID No. R06-OAR-2005-TX-0008, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the on-line instructions for submitting comments.
• Agency Web site: http://docket.epa.gov/rmepub/. Regional Materials in EDocket (RME), EPA's electronic public docket and comment system, is EPA's preferred method for receiving comments. Once in the system, select “quick search,” then key in the appropriate RME Docket identification number. Follow the online instructions for submitting comments.
• EPA Region 6 “Contact Us” web site: http://epa.gov/region6/r6coment.htm. Please click on “6PD” (Multimedia) and select “Air” before submitting comments.
• E-mail: Mr. Thomas Diggs at diggs.thomas@epa.gov. Please also send a copy by email to the person listed in the FOR FURTHER INFORMATION CONTACT section below.
• Fax: Mr. Thomas Diggs, Chief, Air Planning Section (6PD-L), at fax number 214-665-7263.
• Mail: Mr. Thomas Diggs, Chief, Air Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733.
• Hand or Courier Delivery: Mr. Thomas Diggs, Chief, Air Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733. Such deliveries are accepted only between the hours of 8 a.m. and 4 p.m. weekdays except for legal holidays. Special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to RME ID No. R06-OAR-2005-TX-0008. EPA's policy is that all comments received will be included in the public file without change and may be made available online at http://docket.epa.gov/rmepub/ , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information the disclosure of which is restricted by statute. Do not submit information through Regional Materials in EDocket (RME), regulations.gov or e-mail if you believe that it is CBI or otherwise protected from disclosure. The EPA RME Web site and the Federal regulations.gov Web site are “anonymous access” systems, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through RME or regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public file and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters and any form of encryption, and should be free of any defects or viruses.

Docket: All documents in the electronic docket are listed in the Regional Materials in EDocket (RME) index at http://docket.epa.gov/rmepub/. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available materials relevant to this rulemaking are available either electronically in RME or in the official file, which is available at the Air Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733. The file will be made available by appointment for public inspection in the Region 6 FOIA Review Room between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal holidays. Contact the person listed in the FOR FURTHER INFORMATION CONTACT paragraph below or Mr. Bill Deese at 214-665-7253 to make an appointment. If possible, please make the appointment at least two working days in advance of your visit. There will be a 15 cent per page fee for making photocopies of documents. On the day of the visit, please check in at the EPA Region 6 reception area at 1445 Ross Avenue, Suite 700, Dallas, Texas.

The State submittal is also available for public inspection at the State Air Agency listed below during official business hours by appointment:

Texas Commission on Environmental Quality, Office of Air Quality, 12124 Park 35 Circle, Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT:

Carl Young, Air Planning Section (6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733, telephone 214-665-6645; fax number 214-665-7263; e-mail address young.carl@epa.gov.

SUPPLEMENTARY INFORMATION

Throughout this document, whenever “we” “us” or “our” is used, we mean the EPA.

Outline

I. What Is a SIP?

II. What Revisions Were Made to the Texas SIP?

III. What Action Is EPA Taking?

IV. What Is the Effect of This Action?

V. Final Action

VI. Statutory and Executive Order Reviews

I. What Is a SIP?

Section 110 of the CAA requires states to develop air pollution regulations and control strategies to ensure that state air quality meets the NAAQS established by EPA. These ambient standards are established under section 109 of the CAA, and they currently address six criteria pollutants. These pollutants are: carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide.

Each state which contains areas that are not attaining the NAAQS, must submit these regulations and control strategies to us for approval and incorporation into the federally-enforceable SIP.

Each federally-approved SIP protects air quality primarily by addressing air pollution at its point of origin. These SIPs can be extensive, containing state regulations or other enforceable documents and supporting information such as emission inventories, monitoring networks, and modeling demonstrations.

II. What Revisions Were Made to the Texas SIP?

Revisions made to the SIP amended existing requirements and added new requirements to control VOC emissions. The revisions also made a variety of changes which (1) clarify and add flexibility to existing requirements, (2) correct technical and typographical errors, (3) update references to terms and cross references, and (4) delete redundant language and language made obsolete by the passing of compliance dates.

The revisions added new requirements to control VOC emissions in the Austin-San Marcos and San Antonio EAC areas (30 TAC 115.227). The Austin-San Marcos EAC area includes Bastrop, Caldwell, Hays, Travis and Williamson Counties. The San Antonio EAC area includes Bexar, Comal, Guadalupe and Wilson Counties. Motor vehicle fuel dispensing facilities in these areas must meet gasoline vapor recovery control requirements no later than December 31, 2005. For these areas the exemption level for facilities subject to gasoline vapor recovery controls was lowered from those dispensing less than 125,000 gallons of gasoline to those dispensing less than 25,000 gallons in a month. Under these requirements the vapors from the gasoline station storage tanks must be captured as tank-trucks fill these tanks and the vapors returned to the tank-truck. This is commonly known as Stage I vapor recovery. The tank-truck then carries the vapors back to the bulk gasoline plant or terminal. To insure the vapors are not lost in transit, the Texas rules also include requirements that the gasoline tank-trucks be tested for vapor tightness.

Motor vehicle fuel dispensing facilities in the Beaumont-Port Arthur, Dallas-Fort Worth, El Paso, and Houston-Galveston areas are subject to new requirements (30 TAC 115.242). The counties in these areas are Brazoria, Chambers, Collin, Dallas, Denton, El Paso, Fort Bend, Galveston, Harris, Hardin, Jefferson, Liberty, Montgomery, Orange, Tarrant, and Waller. Facilities in these counties that dispense 10,000 gallons of fuel or more per month are required to operate Stage II gasoline vapor recovery systems. Stage II gasoline vapor recovery systems control VOC vapor releases during the refueling of motor vehicles. This process takes the vapors normally emitted directly into the atmosphere when pumping gas and recycles them back into the fuel storage tanks, preventing them from polluting the air. The revisions updated regulations that ensure that, where required, gasoline vapor recovery systems maintain a recovery rate of 95% or greater. Beginning April 1, 2005 new Stage II systems must be compatible with onboard refueling vapor recovery (ORVR) equipment required on newer vehicles. Existing Stage II systems must be upgraded to an ORVR compatible system no later than April 1, 2007. This should decrease the amount of excess emissions caused by incompatibility between ORVR and Stage II recovery systems. Testing of Stage II recovery systems was increased from a five-year requirement to a one-year requirement, with the exception of the vapor space manifold test and the dynamic back pressure test, which are required every three years. The Texas SIP was also revised to remove language that could potentially provide a Stage I exemption for a facility that is required to have Stage II vapor recovery (30 TAC 227). All Stage II vapor recovery systems must include Stage I vapor recovery in order to operate properly.

Existing facilities in the San Antonio and Austin Early EAC areas that employ solvent using processes for cleaning and degreasing are required to implement VOC controls no later than December 31, 2005 (30 TAC 115 sections 412, 416, 415-417, and 419). These controls were already required for new facilities in the State.

Testing methods used to determine compliance for Texas facilities subject to requirements for solvent degreasing were expanded to allow use of additional test methods provided the method was validated by EPA Test Method 301 found in 40 CFR 63, Appendix A (30 TAC 115.415(3)). These methods are used to measure vapor pressure, flow rates, and gaseous emissions for solvent degreasing processes. The regulations apply to operations that use solvent degreasing processes in the Beaumont-Port Arthur, Dallas-Fort Worth, El Paso, Houston-Galveston 1-hour ozone nonattainment areas, the Austin-San Marcos and San Antonio EAC areas, and Gregg, Nueces and Victoria Counties. The Austin-San Marcos and San Antonio EAC areas were added in these submitted revisions. The revisions also add a minor recordkeeping requirement necessary to determine whether solvent degreasing operations in Gregg, Nueces, and Victoria Counties are exempt from VOC controls (30 TAC 115.416(3)). This requirement states that the operator must keep records in sufficient detail to document compliance with the exemption cutoff limit of 550 pounds of VOC emissions in any consecutive 24-hour period.

The revisions added new requirements for using cutback asphalt in the Austin EAC area. Cutback asphalt consists of asphalt cement blended with a petroleum solvent. The requirements were already in place for the Beaumont-Port Arthur, Dallas-Fort Worth, El Paso and Houston-Galveston areas (30 TAC 115 sections 512, 516, 517, and 519). The requirements state that (1) the use of conventional cutback asphalt containing VOC solvents for the paving of roadways, driveways, or parking lots is restricted to no more than 7.0% of the total annual volume averaged over a two-year period of asphalt used by or specified for use by any state, municipal, or county agency who uses or specifies the type of asphalt application; and (2) the use, application, sale, or offering for sale of conventional cutback asphalt containing VOC solvents for paving roadways, driveways, or parking lots is prohibited during the period from April 16 to September 15 of any year.

III. What Action Is EPA Taking?

EPA is taking direct final action to approve revisions to the Texas ozone SIP (Texas SIP) that pertain to regulations which control VOC emissions in Texas. The revisions were adopted by the State of Texas and submitted to EPA on (1) September 7, 2001, (2) November 14, 2002, (3) January 28, 2003, and (4) December 6, 2004.

The revisions submitted to EPA on September 7, 2001 that are being approved pertain to control of VOC emissions from degreasing processes and cutback asphalt. The EPA previously approved rules for degreasing and cutback asphalt into the Texas SIP as meeting RACT requirements for the Beaumont-Port Arthur, Dallas-Fort Worth, El Paso, Houston-Galveston, and Victoria 1-hour ozone nonattainment areas on March 7, 1995 (60 FR 12438). The submitted revisions amended §§ 115.412, 115.413, 115.415, 115.416, 115.417, 115.419, 115.512, 115.517, and 115.519 in 30 TAC Chapter 115, Control of Air Pollution from Volatile Organic Compounds. The revisions made a variety of changes which clarify and add flexibility to existing requirements, correct technical and typographical errors, update references to terms, and delete redundant language and language made obsolete by the passing of compliance dates. The revisions expand testing methods used to determine compliance for Texas facilities subject to requirements for solvent degreasing. The revisions also add a minor recordkeeping requirement necessary to determine whether degreasing operations in Gregg, Nueces, and Victoria Counties are exempt from VOC controls (30 TAC 115.416(3)). EPA is approving these revisions under part D of the Act because they improve the SIP-approved rules and they are consistent with the RACT requirements and guidance for ozone nonattainment areas. Other revisions submitted to EPA on September 7, 2001 will be addressed in another Federal Register action. See our Technical Support Document (TSD) for more information.

The revisions submitted to EPA on November 14, 2002 that are being approved pertain to the control of gasoline vapors from refueling of motor vehicles, Stage II, in the Beaumont-Port Arthur, Dallas-Fort Worth, El Paso, and Houston 1-hour ozone nonattainment areas. The EPA previously approved the Stage II rules for the four 1-hour ozone nonattainment areas on April 15, 1994 (59 FR 17940). The submitted revisions amended §§ 115.227, and 115.240-115.249 in 30 TAC 115. The revisions ensure that gasoline vapor recovery systems maintain a recovery rate of 95% or greater and make new Stage II systems compatible with onboard refueling vapor recovery (ORVR) equipment required on newer vehicles, beginning April 1, 2005. This should decrease the amount of excess emissions caused by incompatibility between ORVR and Stage II recovery systems. The revisions also removed language that could potentially provide a Stage I exemption for a facility that is required to have Stage II vapor recovery. EPA is approving these Stage II revisions under part D of the Act because they improve the SIP-approved rules and they are consistent with the Stage II requirements and guidance for ozone nonattainment areas.

The revisions submitted to EPA on January 28, 2003 that are being approved pertain to the control of VOC emissions from (1) filling of gasoline storage vessels for motor vehicle fuel dispensing facilities, Stage I, and (2) leaks from the gasoline tank trucks as they return to the bulk gasoline plant or terminal. Under the 1990 Amendments, the EPA approved revised Texas Stage I rules into the Texas SIP for the Houston-Galveston, Dallas-Fort Worth, El Paso, and Beaumont-Port Arthur 1-hour ozone nonattainment areas on March 7, 1995 (60 FR 12438). The EPA approved revisions to these rules covering the eastern half of the State of Texas on December 20, 2000 (65 FR 79745) under part D of the Act because Texas relied upon these VOC reductions to demonstrate attainment of the 1-hour ozone standard in the Beaumont-Port Arthur, Dallas-Fort Worth, and Houston-Galveston areas. We also approved them under section 110 and 116 because Texas relied upon these rules for the continued maintenance of the standard in the eastern half of the State of Texas and as a strengthening of the Texas SIP. The submitted revisions amended §§ 115.229, 115.239, in 30 TAC 115. The revisions made a variety of changes which clarify existing requirements, update cross references and delete language made obsolete by the passing of compliance dates. We are approving these revisions under part D and sections 110 and 116 because they improve the SIP-approved rules and they are consistent with the requirements and guidance. Other revisions submitted to EPA on January 28, 2003 will be addressed in another Federal Register action. See our TSD for more information.

The revisions submitted to EPA on December 6, 2004 that are being approved pertain to the control of VOC emissions in Austin-San Marcos and San Antonio EAC areas. An EAC is a voluntary plan to meet the national 8-hour ambient air quality ozone standard for an area that is approaching or monitoring exceedances of the standard. The Austin-San Marcos EAC area includes Bastrop, Caldwell, Hays, Travis and Williamson Counties. The San Antonio EAC area includes Bexar, Comal, Guadalupe and Wilson Counties. The submitted revisions amended §§ 115.227, 115.229, 115.412, 115.413, 115.415-115.417, 115.419, 115.512, 115.516, 115.517, and 115.519 in 30 TAC 115. These revisions lowered the applicability threshold for Stage I and added the degreasing VOC requirements in the two areas, and added the cutback asphalt VOC requirements in the Austin EAC area.

IV. What Is the Effect of This Action?

This action approves revisions to the Texas SIP that pertain to regulations to control VOC emissions. This approval will make these revised regulations federally enforceable. Enforcement of the regulations in a State SIP before and after it is incorporated into the federally approved SIP is primarily a state responsibility. However, after the regulations are federally approved, we are authorized to take enforcement action against violators. Citizens are also offered legal recourse to address violations as described in section 304 of the CAA.

V. Final Action

EPA is approving revisions to the Texas SIP pertaining to control of VOC emissions. The revisions were submitted to EPA by the State of Texas on (1) September 7, 2001, (2) November 14, 2002, (3) January 28, 2003 and (4) December 6, 2004. The revisions being approved are §§ 115.227, 115.229, 115.239-115.249, 115.412, 115.413, 115.415-115.417, 115.419, 115.512, 115.516, 115.517, and 115.519 in 30 TAC Chapter 115, Control of Air Pollution from Volatile Organic Compounds.

We have evaluated the State's submittal and have determined that it meets the applicable requirements of the CAA and EPA air quality regulations, and is consistent with EPA policy. Therefore, we are approving revisions to the Texas SIP which revise regulations to control VOC emissions.

EPA is publishing this rule without prior proposal because we view this as a noncontroversial amendment and anticipate no relevant adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the SIP revision if relevant adverse comments are received. This rule will be effective on May 31, 2005 without further notice unless we receive relevant adverse comment by April 28, 2005. If we receive relevant adverse comments, we will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. We will address all public comments in a subsequent final rule based on the proposed rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so now. Please note that if we receive adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of an adverse comment.

VI. Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

The Congressional Review Act, 5 U.S.C. section 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. section 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 31, 2005. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Intergovernmental relations
• Ozone
• Reporting and recordkeeping requirements
• Volatile organic compounds

40 CFR part 52 is amended as follows:

PART 52—[AMENDED]

1. The authority citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7402 et seq.

Subpart SS—Texas

2. The table in § 52.2270(c) entitled “EPA Approved Regulations in the Texas SIP” under Chapter 115 (Reg 5) is amended as follows:

a. Immediately following the centered heading “Subchapter E: Solvent-Using Processes” by adding a new centered heading “Division 1: Degreasing Processes”;

b. Removing the entry “Section 115.412 to 115.419” in Subchapter E and replacing it with entries for Sections 115.412, 115.413, 115.415, 115.416, 115.417 and 115.419;

c. Removing the “State approval/Submittal date” and “EPA approval date” entries for Sections 115.227, 115.229, 115.239, 115.512, 115.516, 115.517, and 115.519 and replacing the entries as follows: