(Draft EPA Responses to OMB Comments)

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6560-50-P

ENVIRONMENTAL PROTECTION AGENCY 

40 CFR Part 51

[EPA-HQ-OAR-2010-1076; FRL- ]

RIN 2060-AQ97

Air Quality: Widespread Use for Onboard Refueling Vapor Recovery and Stage II Waiver

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule. 

SUMMARY: The EPA has determined that onboard refueling vapor recovery (ORVR) technology is in 

widespread use throughout the motor vehicle fleet for purposes of controlling motor vehicle refueling 

emissions, and, therefore, by this action, the EPA is waiving the requirement for states to implement 

Stage II gasoline vapor recovery systems at gasoline dispensing facilities in nonattainment areas 

classified as Serious and above for the ozone national ambient air quality standards (NAAQS). This 

finding will be effective [INSERT DATE OF PUBLICATION IN THE FEDERAL REGISTER]. 

After the effective date of this notice, a state previously required to implement a Stage II program may

take appropriate action to remove the program from its State Implementation Plan (SIP). Phasing out the 

use of Stage II systems may lead to long-term cost savings for gas station owners and operators while air 

quality protections are maintained.

DATES: This rule is effective on [INSERT DATE OF PUBLICATION IN THE FEDERAL 

REGISTER]. 

ADDRESSES: The EPA has established a docket for this rule, identified by Docket ID No. EPA-HQOAR-2010-1076. All documents in the docket are listed in www.regulations.gov. Although listed in the 

index, some information is not publicly available, i.e., confidential business information or other 
(Draft EPA Responses to OMB Comments)

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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 docket materials are available either electronically in www.regulations.gov or in hard copy at 

the Air and Radiation Docket and Information Center, EPA Headquarters Library, Room Number 3334 

in the EPA West Building, located at 1301 Constitution Ave., NW, Washington, D.C. The Public 

Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. 

The telephone number for the Public Reading Room is (202) 566-1744. 

FOR FURTHER INFORMATION CONTACT: Mr. Lynn Dail, Office of Air Quality Planning and 

Standards, Air Quality Policy Division, Mail code C539-01, Research Triangle Park, NC 27711, 

telephone (919) 541-2363; fax number: 919-541-0824; email address: dail.lynn@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Purpose of Regulatory Action

Since 1990, Stage II gasoline vapor recovery systems have been a required emissions control 

measure in Serious, Severe, and Extreme ozone nonattainment areas. Beginning with model year 1998, 

ORVR equipment has been phased in for new vehicles, and has been a required control on nearly all 

new highway vehicles since 2006. Over time, non-ORVR vehicles will continue to be replaced with 

ORVR vehicles. Stage II and ORVR emission control systems are redundant, and the EPA has 

determined that emission reductions from ORVR are essentially equal to and will soon surpass the 

emission reductions achieved by Stage II alone. In this action, the EPA is eliminating the largely 

redundant Stage II requirement in order to ensure that refueling vapor control regulations are beneficial 

without being unnecessarily burdensome to American business. This action allows, but does not require, 

states to discontinue Stage II vapor recovery programs.

II. Summary of the Major Provisions of this Final Rule
(Draft EPA Responses to OMB Comments)

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Clean Air Act (CAA) section 202(a)(6) provides discretionary authority to the EPA 

Administrator to, by rule, revise or waive the section 182(b)(3) Stage II requirement for Serious, Severe 

and Extreme ozone nonattainment areas after the Administrator determines that ORVR is in widespread 

use throughout the motor vehicle fleet. Based on criteria that the EPA proposed last year (76 FR 41731, 

July 15, 2011), the EPA is determining that ORVR is in widespread use. As of the effective date of 

today’s action, states that are implementing mandatory Stage II programs under section 182(b)(3) of the 

CAA may submit revisions to their SIPs to remove this program.

Today, EPA is also issuing non-binding guidance on developing and submitting approvable SIP 

revisions1. This guidance also addresses SIP requirements for states in the Ozone Transport Region 

(OTR), which are separately required under section 184(b)(2) of the CAA to adopt and implement 

control measures capable of achieving emissions reductions comparable to those achievable by Stage II. 

The EPA has updated its guidance for estimating what Stage II comparable emissions reductions could 

be, in light of the ORVR widespread use determination. With the continuing growth of the national 

vehicle fleet equipped with ORVR and thus capturing an increasing amount of refueling emissions, the 

EPA now expects Stage II comparable emissions reductions to be substantially less than what was 

estimated in the past before ORVR use became widespread. Therefore, the EPA encourages states to 

consult the updated guidance before submitting a SIP revision removing Stage II controls.

III. Costs and Benefits

 

1

“Guidance on Removing Stage II Gasoline Vapor Control Programs from SIPs and Assessing 

Comparable Measures.” U.S. EPA Office of Air and Radiation, issued at the same time as the final 

rule. This guidance provides EPA’s recommendations for states to consider when developing SIP 

revisions following today’s rulemaking. Unlike the final rule, the guidance is not final agency action, 

and is not binding on or enforceable against any person. Consequently, it is subject to possible 

revision without additional rulemaking. In addition, the approaches suggested in the guidance (or in 

any changes thereto) will not represent final agency action unless and until EPA takes a final SIP 

approval or disapproval action implementing those approaches. 
(Draft EPA Responses to OMB Comments)

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The primary purpose of this final rule is to promulgate a determination that ORVR is in 

widespread use as permitted in section 202(a)(6) of the CAA. In this final rule, EPA is exercising the 

authority provided by section 202(a)(6) of the CAA to, by rule, revise or waive the section 182(b)(3) 

Stage II requirement for Serious, Severe, and Extreme ozone nonattainment areas after the 

Administrator determines that ORVR is in widespread use throughout the motor vehicle fleet. This in 

turn gives states that were required to implement Stage II vapor recovery under section 182(b)(3) of the 

CAA the option to submit for the EPA’s review and approval revised ozone SIPs to remove this 

requirement. The EPA projects that during 2013-2015, gasoline dispensing facilities (GDFs) in up to 19

states and the District of Columbia could seek to decommission and remove Stage II systems from their 

dispensers. There are about 30,600 GDFs with Stage II in these 20 areas. If the states submit and EPA 

approves SIP revisions to remove Stage II systems from these GDFs, the EPA projects savings of about 

$10.2 million in the first year, $40.5 million in the second year, and $70.9 million in the third year. Long 

term savings are projected to be about $91 million per year, compared to the current use of Stage II 

systems in these areas. No significant emission increases or decreases are expected from this action.

IV. General Information

A. Does this action apply to me?

Entities directly affected by this action include states (typically state air pollution control 

agencies) and, in some cases, local governments that develop air pollution control rules that apply to 

areas classified as Serious and above for nonattainment of the ozone NAAQS. Individuals and 

companies that operate gasoline dispensing facilities may be indirectly affected by virtue of state action 

in SIPs that implement provisions resulting from final rulemaking on this action; many of these sources 

are in the following groups: 

Industry group SIC

a NAICSb
(Draft EPA Responses to OMB Comments)

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Gasoline stations 5541 447110, 447190 

a

Standard Industrial Classification.

b North American Industry Classification System.

B. Where can I get a copy of this document and other related information?

In addition to being available in the docket, an electronic copy of this notice will be posted at 

http://www.epa.gov/air/ozonepollution/actions.html#impl under “recent actions.”

C. How is this notice organized?

The information presented in this preamble is organized as follows.

I. Purpose of Regulatory Action

II. Summary of the Major Provisions of This Final Rule

III. Costs and Benefits

IV. General Information

A. Does this action apply to me?

B. Where can I get a copy of this document and other related information?

C. How is this notice organized?

V. Background

A. What requirements for Stage II gasoline vapor recovery apply for ozone nonattainment areas?

B. Stage II Vapor Recovery Systems

C. Onboard Refueling Vapor Recovery (ORVR) Systems

D. Compatibility Between Some Vapor Recovery Systems

E. Proposed Rule to Determine Widespread Use of ORVR

VI. This Action

A. Analytical Rationale for Final Rule

B. Updated Analysis of Widespread Use

C. Widespread Use Date

D. Implementation of the Rule Provisions

E. Implementation of Rule Revisions the Ozone Transport Region

F. Comments on Other Waiver Implementation Issues

VII. Estimated Cost 

VIII. Statutory and Executive Order Reviews

A. Executive Orders 12866: Regulatory Planning and Review and Executive Order 13563: 

Improving Regulation and Regulatory Review

B. Paperwork Reduction Act

C. Regulatory Flexibility Act

D. Unfunded Mandates Reform Act

E. Executive Order 13132: Federalism

F. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments

G. Executive Order 13045: Protection of Children from Environmental Health and Safety Risks
(Draft EPA Responses to OMB Comments)

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H. Executive Order 13211: Actions that Significantly Affect Energy Supply, Distribution, or 

Use

I. National Technology Transfer and Advancement Act 

J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority

Populations and Low-Income Populations

K. Congressional Review Act

IX. Statutory Authority

V. Background

A. What requirements for Stage II gasoline vapor recovery apply in ozone nonattainment areas?

The requirements in the 1990 CAA Amendments regarding Stage II vapor recovery are 

contained in Title I: Provisions for Attainment and Maintenance of National Ambient Air Quality

Standards. Under CAA section 182(b)(3), Stage II gasoline vapor recovery systems are required to be 

used at higher throughput GDFs located in Serious, Severe, and Extreme nonattainment areas for 

ozone.2States were required to adopt a Stage II program into their SIPs, and the controls were to be 

installed according to specified deadlines following state rule adoption.3Since the early 1990s, Stage 2 

gasoline vapor controls have provided substantial emissions reductions and have contributed to 

improved air quality over time.

B. Stage II Vapor Recovery Systems

 

2 Originally, the section 182(b)(3) Stage II requirement also applied in all Moderate ozone 

nonattainment areas. However, under section 202(a)(6) of the CAA, 42 U.S.C. 7521(a)(6), the 

requirements of section 182(b)(3) no longer apply in Moderate ozone nonattainment areas after EPA 

promulgated ORVR standards on April 6, 1994, 59 FR 16262, codified at 40 CFR parts 86 (including 

86.098-8), 88 and 600. Under implementation rules issued in 2002 for the 1997 8-hour ozone standard, 

EPA retained the Stage II-related requirements under section 182(b)(3) as they applied for the nowrevoked 1-hour ozone standard. 40 CFR 51.900(f)(5) and 40 CFR 51.916(a).

3

This requirement only applies to facilities that sell more than a specified number of gallons per month 

and is set forth in sections 182(b)(3)(A)-(C) and 324(a)-(c). Section 182(b)(3)(B) has the following 

effective date requirements for implementation of Stage II after the adoption date by a state of a Stage II 

rule: 6 months after adoption of the state rule, for GDFs built after the enactment date (which for newly

designated areas would be the designation date); 1 year after adoption date, for gas stations pumping at 

least 100,000 gal/month based on average monthly sales over 2-year period before adoption date; 2 

years after adoption, for all others.
(Draft EPA Responses to OMB Comments)

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When a gasoline-powered automobile or other vehicle is brought into a GDF to be refueled, the 

empty portion of the fuel tank on the vehicle contains gasoline vapors. When liquid gasoline is pumped 

into the partially empty gas tank, gasoline vapors are forced out of the tank and fill pipe as the tank fills 

with liquid gasoline. Where air pollution control technology is not used, these vapors are emitted into 

the ambient air. In the atmosphere, these vapors can react with sunlight, nitrogen oxides and other 

volatile organic compounds to form ozone. 

There are two basic technical approaches to Stage II vapor recovery: a “balance” system, and a 

vacuum assist system. A balance type Stage II control system has a rubber boot around the gasoline 

nozzle spout that fits snugly up to a vehicle’s gasoline fill pipe during refueling of the vehicle. With a 

balance system, when gasoline in the underground storage tank (UST) is pumped into a vehicle, a 

positive pressure differential is created between the vehicle tank and the UST. This pressure differential 

draws the gasoline vapors from the vehicle fill pipe through the rubber boot and the concentric hoses 

and underground piping into the UST. This is known as a balance system because gasoline vapors from 

the vehicle tank flow into the UST tank to balance pressures. About 30 percent of Stage II GDFs 

nationwide use the balance type Stage II system.

The vacuum assist system is the other primary type of Stage II system currently in operation. 

This type of Stage II system uses a vacuum pump on the vapor return line to help draw vapors from the 

vehicle fill pipe into the UST. An advantage of this type of system is that the rubber boot around the 

nozzle can be smaller and lighter (or not used at all) and still draw the vapors into the vapor return hose. 

This makes for an easier-to-handle nozzle, which is popular with customers. About 70 percent of Stage 

II GDFs nationwide use the vacuum assist approach.

New Stage II equipment is normally required to achieve 95 percent control effectiveness at 

certification. However, studies have shown that in-use control efficiency depends on the proper 
(Draft EPA Responses to OMB Comments)

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installation, operation, and maintenance of the control equipment at the GDF.4 Damaged, missing, or 

improperly operating components or systems can significantly degrade the control effectiveness of a 

Stage II system. 

In-use effectiveness ultimately depends on the consistency of inspections, follow-up review by 

state agencies, and actions by operators to perform inspections and field tests and conduct maintenance 

in a correct and timely manner. The EPA’s early guidance for Stage II discussed expected training, 

inspection, and testing criteria, and most states have adopted and supplemented these criteria as deemed

necessary for balance and vacuum assist systems.5In some cases, states have strictly followed the EPA 

guidance but other states have required a lesser level of inspection and enforcement efforts. Past EPA 

studies have estimated Stage II in-use efficiencies of 92 percent with semi-annual inspections, 86 

percent with annual inspections and 62 percent with minimal or less frequent state inspections.6The inuse effectiveness of Stage II control systems may vary from state to state, and may vary over time within

any state or nonattainment area because the in-use efficiency of Stage II vapor recovery systems 

depends heavily on the ongoing maintenance and oversight by GDF owners/operators and the state/local 

agencies.. 

C. Onboard Refueling Vapor Recovery (ORVR) Systems

In addition to Stage II controls, the 1990 CAA Amendments required another method of 

controlling emissions from dispensing gasoline. Section 202(a)(6) of the CAA requires an onboard 

 

4

The Petroleum Equipment Institute has published recommended installation practices (PEI/RP300-93) 

and most states require inspection, testing, and evaluation before a system is commissioned for use.

5

“Enforcement Guidance for Stage II Vehicle Refueling Control Programs,” U.S. EPA, Office of Air 

and Radiation, Office of Mobile Sources, December 1991. 

6

“Technical Guidance – Stage II Vapor Recovery Systems for Control of Vehicle Refueling at Gasoline 

Dispensing Facilities Volume I: Chapters,” EPA-450/3-91-022a, November 1991. This study is a 

composite of multiple studies.
(Draft EPA Responses to OMB Comments)

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system of capturing vehicle refueling emissions, commonly referred to as an ORVR system.7 ORVR 

consists of an activated carbon canister installed on the vehicle into which vapors are routed from the 

vehicle fuel tank during refueling. There the vapors are captured by the activated carbon in the canister. 

To prevent the vapors from escaping through the fill pipe opening, the vehicle employs a seal in the fill 

pipe which allows liquid gasoline to enter but blocks vapor escape. In most cases these are “liquid seals” 

created by the incoming liquid gasoline slightly backing near the bottom of the fill pipe. When the 

engine is started, the vapors are purged from the activated carbon and into the engine where they are 

burned as fuel.

The EPA promulgated ORVR standards on April 6, 1994 (59 FR 16262). Section 202(a)(6) of 

the CAA required that the EPA’s ORVR standards apply to light-duty vehicles manufactured beginning 

in the fourth model year after the model year in which the standards were promulgated, and that ORVR 

systems provide a minimum evaporative emission capture efficiency of 95 percent. 

Automobile manufacturers began installing ORVR on new passenger cars in 1998 when 40 

percent of new cars were required to have ORVR. The regulation required the percentage of new cars 

with ORVR increase to 80 percent in 1999 and 100 percent in 2000. The regulation also required that 

ORVR for light duty trucks and vans (<6000 pounds (lbs) gross vehicle weight rating (GVWR)) was to 

be phased-in during 2001 with 40 percent of such new vehicles required to have ORVR in 2001, 80 

percent in 2002 and 100 percent in 2003. New heavier light-duty trucks (6001 – 8500 lbs GVWR) were 

required to have 40 percent with ORVR by 2004, 80 percent by 2005 and 100 percent by 2006. New 

trucks up to 10,000 lbs GVWR manufactured as a complete chassis were all required to have ORVR by

 

7 Unlike Stage II, which is a requirement only in ozone nonattainment areas, ORVR requirements apply 

to vehicles everywhere. More detail on ORVR is available at http://www.epa.gov/otaq/orvr.htm.
(Draft EPA Responses to OMB Comments)

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2006.8 Complete vehicle chassis for heavy-duty gasoline vehicles between 10,001 and 14,000 lbs 

GVWR (Class 3) are very similar to those between 8,501 and 10,000 lbs GVWR. For model consistency

purposes, manufacturers began installing ORVR on Class 3 complete chassis in 2006 as well. So, after 

2006, essentially all new gasoline-powered vehicles less than 14,000 lbs GVWR are ORVR-equipped. 

ORVR does not apply to all vehicles, but those not covered by the ORVR requirement comprise 

a small percentage of the gasoline-powered highway vehicle fleet (approximately 1.5 percent of gasoline 

consumption). The EPA estimates that by the end of 2012, more than 71percent of vehicles currently on 

the road will have ORVR.9This percentage will increase over time as older cars and trucks are replaced 

by new models. However, under the current regulatory construct, motorcycles and heavy-duty gasoline 

vehicles not manufactured as a complete chassis are not required to install ORVR, so it is likely that 

there will be some very small percentage of gasoline refueling emissions not captured by ORVR 

controls.

Even prior to the EPA’s adoption of ORVR requirements, in 1993 EPA adopted Onboard 

Diagnostic (OBD) System requirements for passenger cars and light trucks, and eventually did so for 

heavy-duty gasoline vehicles up to 14,000 lbs GVWR.10 These systems are designed to monitor the inuse performance of various vehicle emission control systems and components, including protocols for 

finding problems in the purge systems and large and small vapor leaks in ORVR/evaporative emission 

controls.11 OBD II systems were phased in for these vehicle classes over the period from 1994-1996 for 

 

8 EPA promulgated ORVR standards for light duty vehicles and trucks on April 6, 1994, 59 FR 16262, 

codified at 40 CFR parts 86 (including 86.098-8), 88 and 600.

9

See EPA Memorandum “Onboard Refueling Vapor Recovery Widespread Use Assessment.” A copy

of this memorandum is located in the docket for this action EPA-HQ-OAR-2010-1076.

10 See Federal Register at 58 FR 9468 published February 19, 1993, and subsequent amendments and the 

latest OBD regulations at 40 CFR part 86.1806-05 for program requirements in various years.

11 ORVR systems are basically a subset of evaporative emission systems because they share the same 

vapor lines, purge valves, purge lines, and activated carbon canister.
(Draft EPA Responses to OMB Comments)

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lighter vehicles and 2005-2007 for heavy-duty gasoline vehicles, so, during the same time frame that 

manufacturers were implementing ORVR into their vehicles, they already had implemented or were 

implementing OBD II systems. 

In 2000, the EPA published a report addressing the effectiveness of OBD II control systems.12

This study concluded that enhanced evaporative and ORVR emission control systems are durable and 

low emitting relative to the FTP (Federal Test Procedure) enhanced evaporative emission standards, and 

that OBD II evaporative emissions checks are a suitable replacement for functional evaporative emission 

tests in state inspection and maintenance (I/M) programs. OBD system codes are interrogated and 

evaluated in a 30 vehicle emission I/M program. A recent EPA review of OBD data gathered from I/M 

programs from five states13 indicated relatively few vehicles had any evaporative system-related OBD 

codes that would indicate a potential problem with the vapor management system. 

Based on emissions tests of over 1,100 in-use ORVR-equipped vehicles, EPA concluded that the 

average in-use efficiency of ORVR is 98 percent. The legal requirement for ORVR is 95 percent 

efficiency. Thus, the actual reported control achieved in practice is greater than the statutorily required 

level of control.

D. Compatibility Between Some Vapor Recovery Systems

Even though the per-vehicle vapor recovery efficiency of ORVR exceeds that of Stage II, Stage 

II vapor recovery systems have provided valuable reductions in ozone precursors and air toxics as 

ORVR has been phased into the motor vehicle fleet. In fact, overall refueling emissions from vehicle 

fuel tanks are minimized by having both ORVR and Stage II in place, but the incremental gain from 

 

12 “Effectiveness of OBD II Evaporative Emission Monitors - 30 Vehicle Study,” EPA 420-R-00-018, 

October 2000.

13

 See EPA Memorandum, “Review of Frequency of Evaporative System Related OBD Codes for Five State I/M Programs.” 

A copy of this memorandum is located in the docket for this action EPA-HQ-OAR-2010-1076.
(Draft EPA Responses to OMB Comments)

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retaining Stage II decreases relatively quickly as ORVR penetration surpasses 75 percent of dispensed 

gasoline. Please see Table 2 below. This occurs not only because of a decreasing amount of gasoline 

being dispensed to non-ORVR equipped vehicles, but also because differences in operational design 

characteristics between ORVR and vacuum assist Stage II systems may in some cases cause a reduction 

in the overall control system efficiency compared to what could have been achieved relative to the 

individual control efficiencies of either ORVR or Stage II emissions from the vehicle fuel tank. The 

problem arises because the ORVR canister captures the gasoline vapor emissions from the motor vehicle 

fuel tank rather than the vapors being drawn off by the vacuum assist Stage II system. This occurs 

because the fill pipe seal blocks the vapor from reaching the Stage II nozzle. Thus, instead of drawing 

vapor-laden air from the vehicle fuel tank into the underground storage tank (UST), the vacuum pump of 

the Stage II system draws mostly fresh air into the UST. This fresh air causes gasoline in the UST to 

evaporate inside the UST and creates an internal increase in UST pressure. As the proportion of ORVR 

vehicles increases, the amount of fresh air, void of gasoline vapors, pumped into the UST also increases. 

Even with pressure/vacuum valves in place this eventually leads to gasoline vapors being forced out of

the UST vent pipe into the ambient air. These new UST vent-stack emissions detract from the overall 

recovery efficiency at the GDF. As discussed in the proposed rule, the level of these UST vent stack 

emissions varies based on several factors but can result in a net 1 to 10 percent decrease in overall 

control efficiency of vehicle fuel tank emissions at any given GDF.14 The decrease in efficiency varies 

depending on the vacuum assist technology design (including the use of a mini-boot for the nozzle and 

 

14 See EPA Memorandum “Onboard Refueling Vapor Recovery Widespread Use Assessment.” A copy

of this memorandum is located in the docket for this action EPA-HQ-OAR-2010-1076. The level of 

these UST vent stack emissions varies based on several factors; EPA estimates a 5.4 to 6.4 percentage 

point decrease in Stage II control efficiency in the 2011-2015 time frame at GDFs employing nonORVR compatible vacuum assist Stage II nozzles. The decrease in efficiency varies depending on the 

vacuum assist technology design (including the use of a mini-boot for the nozzle and the ratio of 
(Draft EPA Responses to OMB Comments)

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the ratio of volume of air drawn into the UST compared to the volume of gasoline dispensed (A/L) 

ratio), the gasoline Reid vapor pressure, the air and gasoline temperatures, and the fraction of throughput 

dispensed to ORVR vehicles. There are various technologies that address these UST vent-stack 

emissions and can extend the utility of Stage II to further minimize the overall control of gasoline vapor 

emissions at the GDF. These technologies include nozzles that sense when fresh air is being drawn into 

the UST and stop or reduce the air flow. These ORVR-compatible nozzles are now required in 

California and Texas. Another solution is the addition of processors on the UST vent pipe that capture or 

destroy the gasoline vapor emissions from the vent pipe. A number of these systems were presented in 

comments on the proposed rule. While they may have merit, installing these technologies adds to the 

expense of the control systems.

E. Proposed Rule to Determine Widespread Use of ORVR

Section 202(a)(6) of the CAA provides discretionary authority to the EPA Administrator to, by

rule, revise or waive the section 182(b)(3) Stage II requirement for Serious, Severe, and Extreme ozone 

nonattainment areas after the Administrator determines that ORVR is in widespread use throughout the 

motor vehicle fleet. The percentage of non-ORVR vehicles and the percentage of gasoline dispensed to 

those vehicles grows smaller each year as these older vehicles wear out and are replaced by new ORVRequipped models. Given the predictable nature of this trend, the EPA proposed a date for ORVR 

widespread use. 

In the Notice of Proposed Rulemaking (76 FR 41731, July 15, 2011), the EPA proposed that 

ORVR widespread use will occur at the mid-point in the 2013 calendar year, relying upon certain 

 

volume of air drawn into the UST compared to the volume of gasoline dispensed (A/L) ratio), the 

gasoline Reid vapor pressure, the air and gasoline temperatures, and the fraction of throughput 

dispensed to ORVR vehicles. The values will increase over time as the fraction of total gasoline 

dispensed to ORVR vehicles at Stage II GDFs increases.
(Draft EPA Responses to OMB Comments)

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criteria outlined in the proposed rule. This date was also proposed as the effective date for the waiver of 

the CAA section 182(b)(3) Stage II requirements for Serious, Severe and Extreme ozone nonattainment 

areas. 

The EPA used two basic approaches in determining when ORVR would be in widespread use in 

the motor vehicle fleet. Both approaches focused on the penetration of ORVR-equipped vehicles in the 

gasoline-powered highway motor vehicle fleet. The first proposed approach focused on the volume of 

gasoline that is dispensed into vehicles equipped with ORVR, and compared the emissions reductions 

achieved by ORVR alone to the reductions that can be achieved by Stage II controls alone. The second 

approach focused on the fraction of highway motor gasoline dispensed to ORVR-equipped vehicles.

In the proposal, the EPA included Table 1 (republished below). This work was based on outputs 

from EPA’s MOVES 2010 motor vehicle emissions model, which showed information related to the 

penetration of ORVR in the national motor vehicle fleet projected to 2020. These model outputs have 

been updated for the final rule to be consistent with the latest public release of the model (MOVES 

2010a) since that is the version of the model states would use in any future inventory assessment work 

related to refueling emissions control. Overall, ORVR efficiency was shown in column 5 of Table 1 

and was determined by multiplying the fraction of gasoline dispensed into ORVR-equipped vehicles by

ORVR’s 98 percent in-use control efficiency.

Table 1 - Projected Penetration of ORVR in the National Vehicle Fleet by Year – based on MOVES 

2010

1 2 3 4 5

Calendar Year

Vehicle 

Population 

Percentage

VMT 

Percentage

Gasoline 

Dispensed 

Percentage

ORVR 

Efficiency

2006 39.5% 48.7% 46.2% 45.3%

2007 45.3% 54.9% 52.5% 51.5%

2008 50.1% 60.0% 57.6% 56.4%

2009 54.3% 64.5% 62.1% 60.9%

2010 59.0% 69.3% 66.9% 65.6%
(Draft EPA Responses to OMB Comments)

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2011 63.6% 73.9% 71.5% 70.1%

2012 67.9% 78.0% 75.6% 74.1%

2013 71.7% 81.6% 79.3% 77.7%

2014 75.2% 84.6% 82.6% 80.9%

2015 78.4% 87.2% 85.3% 83.6%

2016 81.2% 89.4% 87.7% 85.9%

2017 83.6% 91.2% 89.7% 87.9%

2018 85.6% 92.7% 91.3% 89.5%

2019 87.5% 93.9% 92.7% 90.8%

2020 89.0% 94.9% 93.9% 92.0%

See EPA Memorandum “Onboard Refueling Vapor Recovery Widespread Use 

Assessment” in the docket (number EPA-HQ-OAR-2010-1076) addressing details on 

issues related to values in this table.

Note: In this table, the columns have the following meaning.

1. Calendar year that corresponds to the percentages in the row associated with the year.

2. Percentage of the gasoline-powered highway vehicle fleet that have ORVR.

3. Percentage of vehicle miles traveled (VMT) by vehicles equipped with ORVR.

4. Amount of gasoline dispensed into ORVR-equipped vehicles as a percentage of all 

gasoline dispensed to highway motor vehicles.

5. Percentage from the same row in column 4 multiplied by 0.98.

In the proposal, the EPA estimated that ORVR would need to achieve in-use emission reductions 

of about 77.4 percent to be equivalent to the amount of control Stage II alone would achieve. This 

estimate was based on the in-use control efficiency of Stage II systems and exemptions for Stage II for 

lower throughput GDFs. In the NPRM, the EPA assumed that in areas where basic Stage II systems are 

used the control efficiency of Stage II gasoline vapor control systems is 86 percent. The use of this value 

depends on the assumption that daily and annual inspections, periodic testing, and appropriate 

maintenance are conducted in a correct and timely manner. In addressing comments, we have stated that 

this efficiency could be nearer to 60% if inspections testing and maintenance are not conducted and 

there is minimal enforcement.15

 

15

 See, “Determination of Widespread Use of Onboard Refueling Vapor Recovery (ORVR) and Waiver 

of Stage II Vapor Recovery Requirements: Summary of Public Comments and Responses.” March 2012. 

Document contained in docket EPA-HQ-OAR-2010-1076.
(Draft EPA Responses to OMB Comments)

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In the NPRM, the EPA estimated that the percentage of gasoline dispensed in an area that is 

covered by Stage II controls is 90 percent. Multiplying the estimated efficiency of Stage II systems (86 

percent) by the estimated fraction of gasoline dispensed in nonattainment areas from Stage II-equipped 

gasoline pumps yielded an estimate of the area-wide control efficiency of Stage II programs of 77.4 

percent (0.90 x 0.86 = 0.774 or 77.4 percent) for emissions displaced from vehicle fuel tanks. 16 17 Table 

1 indicated this level of ORVR control efficiency is expected to be achieved during calendar year 2013. 

In the second approach for estimating when ORVR is in widespread use, we also observed from 

Table 1 that by the end of calendar year 2012 more than 75 percent of gasoline will be dispensed into 

ORVR-equipped vehicles. As discussed in the NPRM, the EPA believed that this percentage of ORVR 

coverage (>75 percent) is substantial enough to inherently be viewed as “widespread” under any 

ordinary understanding of that term. Furthermore, in Table 1, the percentage of VMT by ORVRequipped vehicles (column 3) and the amount of gasoline dispensed into ORVR-equipped vehicles 

(column 4) reached or exceeded 75 percent between the end of year 2011 and end of 2012. The EPA 

believed this provided further support for establishing a widespread use date after the end of calendar 

 

16 See section 4.4.3 (especially Figure 4-14 and Table 4-4) in “Technical Guidance - Stage II Vapor 

Recovery Systems for Control of Vehicle Refueling Emissions at Gasoline Dispensing Facilities, 

Volume I: Chapters,” EPA-450/3-91-022a, November 1991. A copy of this document is located in the 

docket for this action EPA-HQ-OAR-2010-1076. This is based on annual enforcement inspections and 

on allowable exemptions of 10,000/50,000 gallons per month as described in section 324(a) of the 

CAA. The EPA recognizes that these two values vary by state and that in some cases actual in-use 

efficiencies, prescribed exemption levels, or both may be either higher or lower.

17 AP-42, The EPA’s emission factors document, identifies three sources of refueling emissions: 

displacement, spillage, and breathing losses. In the EPA Memorandum “Onboard Refueling Vapor 

Recovery Widespread Use Assessment” (available in the public docket), the EPA determined that for 

separate Stage II and ORVR refueling events, spillage and breathing loss emission rates are similar. 

Thus, this analysis focuses on differences in controlled displacement emissions. Compatibility effects 

related to ORVR and Stage II vacuum assist systems are addressed separately.
(Draft EPA Responses to OMB Comments)

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year 2012. Based on the dates derived from these two basic approaches, the EPA proposed to determine 

that ORVR will be in widespread use by June 30, 2013, or the midpoint of calendar year 2013. 

VI. This Action

A. Analytical Rationale for Final Rule

Section 202(a)(6) of the CAA provides discretionary authority to the EPA Administrator to, by

rule, revise or waive the section 182(b)(3) Stage II requirement after the Administrator determines that 

ORVR is in widespread use throughout the motor vehicle fleet. As discussed in the NPRM, the EPA has 

broad discretion in how it defines widespread use and the manner in which any final determination is 

implemented. In our review of the public comments received on the proposal, no commenter indicated 

that a widespread use determination was inappropriate or took issue with the EPA’s two-pronged 

analytical approach. We have integrated responses to many comments throughout the preamble to this 

final rule. A more detailed set of responses is in a document titled, “Determination of Widespread Use 

of Onboard Refueling Vapor Recovery (ORVR) and Waiver of Stage II Vapor Recovery, Summary of 

Public Comments and Responses” that can be found in the docket, EPA-HQ-OAR-2010-1076.

The analytical approaches used by the EPA to determine the widespread use date are influenced 

by several key input parameters that affect the estimates of the emission reduction benefits of Stage II 

alone versus the benefits of ORVR alone and the phase-in of ORVR-equipped vehicles. We received 

several comments on the assumptions and parameters used by the EPA in the NPRM, and in some cases 

we have updated the information used in calculations that support the final rule, as discussed in the 

following paragraphs.

1. ORVR Parameters

 ORVR efficiency. The EPA used an in-use control efficiency of ORVR of 98 percent in the 

proposal. This was based on the testing of 1,160 vehicles drawn from the field. EPA has updated 
(Draft EPA Responses to OMB Comments)

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its analysis to include an additional 478 refueling emission test results for ORVR-equipped 

vehicles that were conducted in calendar years 2010 and 2011. The data set, which now includes 

over 1,600 vehicle tests for vehicles from model years 2000-2010 with mileages ranging from 

10,000 to over 100,000, continues to support the conclusion that the 98 percent in-use efficiency

values remain appropriate.18 

 Modeling program inputs. The NPRM relied on EPA’s MOVES 2010 model for estimating 

ORVR vehicle fleet penetration, VMT by ORVR vehicles, and gallons of gasoline dispensed to 

ORVR vehicles. Since the development of the NPRM, the EPA has publicly released MOVES 

2010a. The updated model incorporates many improvements. Those relevant here include 

updates in ORVR vehicle sales, sales projections, scrappage, fleet mix, annual VMT, and fuel 

efficiency. The EPA believes that the modeling undertaken to determine the widespread use date 

for the final rule should employ the EPA’s latest MOVES modeling program because it contains 

updated information that bears on the subject of this rulemaking, and because the EPA expects 

states to also use it in any state-specific demonstrations supporting future SIP revisions, 

including revisions that seek to remove Stage II programs.

2. Stage II Parameters

 Stage II efficiency. The EPA used an in-use control efficiency of 86 percent for Stage II in the 

proposal. As discussed above, Stage II control efficiency depends on inspection, testing, and 

maintenance by GDF owner/operators, and inspection and enforcement by state/local agencies. 

Typical values range from 62 percent to 86 percent. The public comments referred the EPA to 

additional reported information directly related to in-use effectiveness of Stage II vapor 

 

18

 See the EPA memorandum “Updated ORVR In-Use Efficiency.” A copy of this memorandum is 

located in the docket for this action EPA-HQ-OAR-2010-1076.
(Draft EPA Responses to OMB Comments)

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recovery.

19 The reports indicate that for balance and vacuum-assist type Stage II systems in use 

in many states today, the in-use effectiveness of Stage II is typically near 70 percent. 

Nonetheless, the EPA has elected to retain the use of an 86 percent efficiency value in the 

analyses supporting the final rule. This is because many state programs have included the 

maintenance and inspection provisions recommended by EPA to achieve this level of efficiency

in their initial SIPs that originally incorporated Stage II controls.20 Current in-use efficiency

values may well be lower based on the performance of the Stage II technology itself or for other 

reasons related to maintenance and enforcement. We are not rejecting the additional information 

from commenters or the possibility that Stage II efficiency may be lower in some states or 

nonattainment areas. However, the EPA believes these issues are best examined in the SIP 

review process. If real in-use efficiency across all existing Stage II programs is, in fact, lower 

than 86 percent, the EPA’s final analysis overestimates the length of time required for emissions 

reductions from ORVR alone to eclipse the reductions that can be achieved by Stage II alone.

 Stage II exemption rate. In sections 182(b)(3) and 324 of the CAA, Congress permitted 

exemptions from Stage II controls for GDFs of less than 10,000 gallons/month (privates) and 

50,000 gallons/month (independent small business marketers). The EPA analysis indicated that 

these GDF throughput values exempted about 10 percent of annual throughput in any given area. 

Some states included more strict exemption rates, most commonly 10,000 gallons per month (3

percent of throughput) for both privates and independent small business marketers. A few other 

 

19 See “Draft Vapor Recovery Test Report,” April 1999 by CARB and CAPCOA (now cleared for 

public use), and “Performance of Balance Vapor Recovery Systems at Gasoline Dispensing Facilities”, 

prepared by the San Diego Air Pollution Control District, May 18, 2000. Both reports are available in 

the public docket.

20 The EPA report, “Enforcement Guidance for Stage II Vehicle Refueling Control Programs,” U.S. 

EPA, Office of Air and Radiation, Office of Mobile Sources, December 1991, provides basic EPA 

guidance on what a state SIP and accompanying regulations should include to achieve high efficiency.
(Draft EPA Responses to OMB Comments)

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states’ exemption provisions used values that fell within or outside this range.21 Of the 21 states

and the District of Columbia with areas classified as Serious, Severe, or Extreme for ozone 

and/or within the Ozone Transport Region, the plurality incorporated exemption provisions in 

their state regulations which exempted about 10 percent of throughput.22 Therefore, we believe it 

remains reasonable to use that value within this analysis.

 Compatibility factor for vacuum assist Stage II systems. The EPA discussed the compatibility

factor at length in the NPRM and provided relevant materials in the docket. Several commenters 

asked that the EPA provide guidance on how the compatibility factor should be incorporated into 

any similar analysis conducted by a state for purposes of future SIP revisions involving Stage II 

programs. The magnitude of the compatibility factor for any given area varies depending on 

ORVR penetration, fraction of vacuum assist nozzles relative to balance nozzles, and excess A/L

for vacuum assist nozzles. Two states have adopted measures to reduce this effect through the 

use of ORVR-compatible nozzles and one state prohibits vacuum assist nozzles completely. Due 

to these significant variables, the EPA is electing not to include the compatibility factor in the 

widespread use date determination analysis, but will provide the guidance requested by the 

commenters for use in making future SIP revisions. To the extent that compatibility emissions 

across all existing Stage II programs as a whole are significant, the EPA’s final analysis 

overestimates the length of time required for emissions reductions from ORVR alone to eclipse 

the reductions that can be achieved by Stage II alone.

B. Updated Analysis of Widespread Use 

 

21 There are a few states that limit Stage II exemptions to only GDFs with less than 10,000 gpm 

throughput, which would exempt about three to five percent of area-wide throughput. 

22 See the EPA memorandum “ Summary of Stage II Exemption Program Values.” A copy of this 

memorandum is located in the docket for this action in EPA-HQ-OAR-2010-1076.
(Draft EPA Responses to OMB Comments)

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As discussed previously, the EPA has used two approaches for determining when ORVR is in 

widespread use on a nationwide basis. After reviewing our methodology and reviewing the related 

comments on the NPRM, we are retaining three of the four basic analytical input parameters and 

updating one. The in-use ORVR efficiency, the in-use Stage II efficiency, and the Stage II exemption 

rate parameters are the same as in the NPRM. However, we have updated the modeling program inputs 

as discussed previously, and the results are reflected in Table 2.

Table 2 - Projected Penetration of ORVR in the National Vehicle Fleet by Year – based on MOVES 

2010(a)

1 2 3 4 5

End of Calendar 

Year

Vehicle Population 

Percentage

VMT 

Percentage

Gasoline Dispensed 

Percentage

ORVR 

Efficiency

2006 42.6% 51.2% 49.2% 48.2%

2007 48.4% 57.3% 55.5% 54.4%

2008 53.3% 62.3% 60.5% 59.2%

2009 57.7% 66.8% 64.8% 63.5%

2010 62.4% 71.6% 69.5% 68.1%

2011 67.1% 76.0% 73.9% 72.4%

2012 71.4% 80.0% 77.7% 76.1%

2013 75.3% 83.4% 81.0% 79.4%

2014 78.7% 86.3% 84.0% 82.3%

2015 81.8% 88.8% 86.5% 84.8%

2016 84.5% 90.9% 88.6% 86.8%

2017 86.8% 92.5% 90.3% 88.5%

2018 88.8% 93.9% 91.9% 90.0%

2019 90.5% 95.0% 93.2% 91.3%

2020 92.0% 95.9% 94.3% 92.4%

See EPA Memorandum “Onboard Refueling Vapor Recovery Widespread Use Assessment” in the 

docket (number EPA-HQ-OAR-2010-1076) addressing details on issues related to values in this table.

Note: In this table, the columns have the following meaning.

1. Calendar year that corresponds to the percentages in the row associated with the year.

2. Percentage of the gasoline-powered highway vehicle fleet that have ORVR.

3. Percentage of vehicle miles traveled (VMT) by vehicles equipped with ORVR.

4. Amount of gasoline dispensed into ORVR-equipped vehicles as a percentage of all gasoline 

dispensed to highway motor vehicles.

5. Percentage from the same row in column 4 multiplied by 0.98.
(Draft EPA Responses to OMB Comments)

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The results in Table 2 are applied in the context of the two basic analytical approaches used in 

the NPRM for supporting the final date associated with the EPA’s widespread use determination. First, 

using the analysis based on equal reductions for Stage II and ORVR, the 77.4 percent in-use emission 

reduction efficiency for ORVR will occur in May 2013 (See column 5 of Table 2). Second, 75 percent 

of gasoline will be dispensed to ORVR-equipped vehicles by April 2012 (See column 4 of Table 2).

C. Widespread Use Date

The updated analysis indicates that the two benchmarks will occur about a year apart, and that 

one benchmark of April 2012 has already passed. At the time of the NPRM, both of the benchmark dates 

for the ORVR widespread use determination were in the future, many months after the EPA’s expected 

final action. Thus, given the basic merits of both approaches, the EPA believed it was reasonable to 

propose a date between the dates associated with the two analytical approaches. 

The EPA’s updated analysis presents a somewhat different picture. The April 2012 benchmark 

date has already passed, and the May 2013 benchmark date is less than 1 year away. We believe it is 

reasonable for the EPA Administrator to determine that ORVR is in widespread use in the motor vehicle 

fleet as of the date this final action is published in the Federal Register because this final rule is being 

promulgated within the window bounded by the two benchmark dates derived from the updated 

analyses.

As discussed previously in this notice and in the NPRM, the EPA has discretion in setting the 

widespread use date. It is evident from the public comments on the NPRM from states and members of 

the regulated industry, and from recent state actions, that there is a desire to curtail Stage II installations 

at newly constructed GDFs, and to initiate an orderly phase-out of Stage II controls at existing GDFs.23

 

23 For example, in November 2011, New Hampshire put new regulations in place that eliminate the need 

for new GDFs to install Stage II, allows current GDFs with Stage II to decommission the systems, and 

requires all systems to be decommissioned by December 22, 2015. In May of 2011, New York issued an 
(Draft EPA Responses to OMB Comments)

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Since one of the two analytical benchmark dates (April 2012) has passed, and we expect in most cases 

the second analytical benchmark date (May 2013) will have passed by the time the EPA is able to 

complete approvals of SIP revisions removing Stage II programs and pass any revised regulations, then

in response to comments asking us to expedite the ORVR widespread use finding, the EPA 

Administrator is determining that ORVR is in widespread use in the motor vehicle fleet as of [INSERT 

DATE OF PUBLICATION IN THE FEDERAL REGISTER]. Accordingly, as of [INSERT DATE 

OF PUBLICATION IN THE FEDERAL REGISTER] the requirement to implement a Stage II 

emissions control program under section 182(b)(3) of the CAA is waived.

D. Implementation of the Rule Provisions

In this final action, the ORVR widespread use determination and waiver of the section 182(b)(3)

requirement applies to the entire country. This includes areas that are now classified as Serious or above 

for ozone nonattainment, as well as those that may be classified or reclassified as Serious or above in the 

future.

In the NPRM, we indicated that states could potentially demonstrate that ORVR was in 

widespread use in specific areas sooner than the general, national date. Such a provision is no longer 

needed because today’s action provides for a nationwide determination of widespread use effective on 

[INSERT DATE OF PUBLICATION IN FEDERAL REGISTER].

As stated in this final action and as pointed out by several commenters, the ORVR widespread 

use determination and section 182(b)(3) waiver determination does not obligate states to remove any

existing Stage II vapor recovery requirements. It is possible that a state would determine it beneficial to 

continue implementation of a Stage II program. For example, in an area where ORVR-equipped fleet 

 

enforcement discretion directive which curtailed the need for new stations to install Stage II and 

permitted current installations to be decommissioned. These actions remain under review of EPA.
(Draft EPA Responses to OMB Comments)

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penetration is considerably less than the national average, or where Stage II exemptions are significantly

more restrictive than the national assumptions used in this analysis, a state may determine that it would 

not be appropriate to modify its program immediately, but that it would be more appropriate to do so at a 

later date. In assessing whether and how to phase out Stage II requirements, states are encouraged to 

review, and as needed revise the area-specific assumptions about taking into consideration their 

inspection and enforcement resource commitments as well as ORVR/vacuum-assist Stage II 

compatibility. 

A state that chooses to remove the program must submit a SIP revision requesting EPA to 

approve such action and provide, as appropriate, a demonstration that the SIP revision is consistent with 

CAA section 110(1), and in some cases consistent with CAA section 193. The EPA guidance on 

conducting assessments to support Stage II-related SIP revisions was issued at the same time as this final 

rule.24 The EPA encourages states to review this guidance and consult with the EPA Regional Offices on 

developing SIP revisions seeking EPA approval for phasing out existing Stage II programs in a manner 

that ensures air quality protections are maintained.

Section 110(l) precludes the Administrator from approving a SIP revision if it would interfere 

with applicable CAA requirements (including, but not limited to, attainment and maintenance of the 

ozone NAAQS and achieving reasonable further progress). A state may demonstrate through analysis 

that removing a Stage II program in an area as of a specific date will not result in an emissions increase 

in the area, or that the small and ever-declining increase is offset by other simultaneous changes in the 

implementation plan. However, a state may find that by removing Stage II requirements, they are 

reducing the overall level of emissions reductions they have previously applied toward meeting CAA 

 

24 “Guidance on Removing Stage II Gasoline Vapor Control Programs from SIPs and Assessing 

Comparable Measures.” U.S. EPA Office of Air and Radiation, issued at the same time as the final 

rule.
(Draft EPA Responses to OMB Comments)

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rate of progress (ROP) or reasonable further progress (RFP) requirements, or demonstrating attainment. 

If so, the state should explain how removing Stage II controls in the area would not interfere with 

attaining and maintaining the ozone NAAQS in the area. In such circumstances, it is possible that 

additional emissions reductions from other measures may be needed to offset the removal of Stage II.

If EPA has approved a state’s adoption of Stage II requirements into a SIP before November 15, 

1990, section 193 would also apply. Section 193 provides that removal of an emissions control program 

cannot result in any emissions increase unless the increase is offset. Section 193 only applies if an area 

is nonattainment for the standard.

State and local agencies should also consider any transportation conformity impacts related to 

removing Stage II if emissions reductions from Stage II are included in a SIP-approved on-road motor 

vehicle emissions budget. States may need to adjust conformity budgets or the components of the budget 

if removing Stage II requirements would alter expected air quality benefits.

In previous memoranda, the EPA provided guidance to states on removing Stage II at refueling 

facilities dedicated to certain segments of the motor vehicle fleet (e.g., new automobile assembly plants, 

rental car facilities, E85 dispensing pumps, and corporate fleet facilities). In these specific cases where 

all or nearly all of the vehicles being refueled are ORVR-equipped, the EPA could conservatively 

conclude that widespread use of ORVR had occurred in these fleets.25

E. Implementation of rule provisions in the Ozone Transport Region

States and the District of Columbia in the OTR in the northeastern U.S. are also subject to a 

separate Stage II-related requirement. Under section 184(b)(2) of the CAA (42 U.S.C. § 7511c(b)(2)), 

all areas in the OTR, both attainment and nonattainment areas, must implement control measures 

 

25 “Removal of Stage II Vapor Recovery in Situation where Widespread Use of Onboard Refueling 

Vapor Recovery is Demonstrated,” from Stephen D. Page and Margo Tsirigotis Oge, EPA, December 

12, 2006.
(Draft EPA Responses to OMB Comments)

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capable of achieving emissions reductions comparable to those achievable through Stage II controls. The 

CAA does not contain specific provisions giving authority to the EPA Administrator to waive this

independent requirement. The section 184(b)(2) requirement does not impose Stage II per se, but rather 

is a requirement that OTR states achieve an amount of emissions reductions comparable to the amount 

that Stage II would achieve. Moreover, section 202(a)(6), in allowing for a waiver of the section 

182(b)(3) Stage II requirement for nonattainment areas, does not refer to the independent section 

184(b)(2) requirements. Therefore, the section 184(b)(2) Stage II-related requirement for the OTR will 

continue to remain in place even after the ORVR widespread use determination and section 182(b)(3) 

waiver effective date.

In the mid-1990s, the EPA issued guidance on estimating what levels of emissions reductions 

would be “comparable” to those reductions achieved by Stage II.26 In response, most OTR states simply 

adopted Stage II programs rather than identify other measures that got the same degree of emissions 

reductions. Given the continued penetration of ORVR-equipped vehicles into the overall vehicle fleet, 

Stage II-comparable emissions are significantly less than in the past, and continue to decline. 

Accordingly, the EPA has updated the guidance on determining “comparable measures.” States in the 

OTR should refer to that guidance if preparing a SIP revision to remove Stage II programs in areas of 

the OTR.27

Commenters on the NPRM urged the EPA to revise its previous interpretation of section 

184(b)(2) to permit ORVR to be recognized as a Stage II comparable emission reduction measure. This 

 

26 "Stage II Comparability Study for the Northeast Ozone Transport Region," (EPA-452/R-94-011; 

January 1995).

27 “Guidance on Removing Stage II Gasoline Vapor Control Programs from SIPs and Assessing 

Comparable Measures.” U.S. EPA Office of Air and Radiation, issued at the same time as the final 

rule.
(Draft EPA Responses to OMB Comments)

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issue is not within the scope of this rulemaking, and EPS is not taking final agency action implementing 

section 184(b)(2) or an interpretation thereof. However, for informational purposes, we point out that 

simply treating the ORVR requirements under section 202(a)(6) as a comparable measure that an OTR 

SIP must additionally contain would arguably render the 184(b)(2) requirement a nullity, which could be 

an impermissible statutory interpretation. If commenters wish to further address this issue, we ask that 

they raise their concerns in any future SIP actions under section 184(b)(2) regarding OTR states that 

may affect them. In addition, we note that the expected level of emissions reductions that Stage II 

programs can obtain has changed significantly in the past 15 years with ORVR-equipped vehicles 

phasing in at the rate of 3-4 percent of the fleet each calendar year. Therefore, the EPA has updated 

guidance on estimating the emissions reductions needed to be comparable to those achievable through 

Stage II controls. Theoretically, comparable measures could in some areas mean no additional control 

beyond ORVR is required if Stage II is achieving no additional emission reduction benefit in the area, or 

has reached a point of providing only a declining de minimis benefit. This issue is more fully addressed 

in the EPA’s updated guidance titled “Guidance on Removing Stage II Gasoline Vapor Control 

Programs from SIPs and Assessing Comparable Measures” for the OTR issued at the same time as this 

final rule.

F. Comments on Other Waiver Implementation Issues 

Numerous commenters on the NPRM urged the EPA to adopt provisions in the final rule that 

would exempt new gasoline dispensing facilities with construction occurring between the final rule 

publication and the effective Stage II waiver date from installing Stage II equipment. The timing issue is 

now largely moot since widespread use is deemed to have occurred on the effective date of this action. 

However, under the CAA, states adopt state-specific or area-specific rules, which are then submitted to 

the EPA for approval into the SIP. These rules are independently enforceable under state law, and also 
(Draft EPA Responses to OMB Comments)

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become federally enforceable when the EPA approves them into the SIP. The EPA cannot unilaterally

change legally-adopted state statutes or rules or otherwise revise an approved SIP that was not

erroneously approved. The EPA’s only authority to establish requirements that would apply in lieu of 

approved SIPs is its authority under CAA section 110(c) to promulgate a Federal Implementation Plan 

(FIP). To trigger FIP authority, the EPA must first determine that a state has failed to submit a required 

SIP or that the state’s SIP must be disapproved. The circumstances of this ORVR widespread use 

finding and waiver of the section 182(b)(3) Stage II requirement to do not present either of those 

situations. According to requirements established by the CAA that are applicable here, states will need 

to develop and submit SIP revisions to the EPA in order to change or eliminate SIP-approved state rules 

that set forth the compliance dates for newly constructed GDFs.

Commenters also urged EPA to simply allow states to eliminate all active Stage II programs 

from certain nonattainment areas after the widespread use date, without requiring SIP revisions from 

states. While the EPA has discretion to determine the widespread use date, the EPA cannot simply

nullify states’ rules that are binding and enforceable under state law. In order to change the federal 

enforceability of SIPs, states must go through the SIP revision process, and the EPA can approve the SIP 

revision only if the provisions of section 110(l) and any other applicable requirements, such as the 

requirements of section 193 and the comparable measures requirement for OTR states, are satisfied.

Today’s final rule takes no action in implementing CAA sections 110(l), 193, or 184(b)(2), and any 

future final actions regarding “comparable measures” SIPs will be fact-specific in response to individual 

state submissions. Also, subsequent to the effective waiver date of the section 182(b)(3) Stage II 

requirements, areas currently implementing the EPA-approved Stage II programs in their SIPs as a result 

of obligations under the 1-hour or 1997 8-hour ozone NAAQS, would be required to continue 
(Draft EPA Responses to OMB Comments)

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implementing these programs until the EPA approves a SIP revision adopted under state law removing 

the requirement from the state’s ozone implementation plan.

VII. Estimated Cost 

As part of the NPRM, the EPA conducted an initial assessment of the costs and savings to 

gasoline dispensing facility owners related to this proposed action. The report titled, “Draft Regulatory

Support Document, Decommissioning Stage II Vapor Recovery, Financial Benefits and Costs,” is 

available in the public docket for this action. The report examines the initial costs and savings to facility

owners incurred in the decommissioning of Stage II vapor recovery systems, as well as changes in 

recurring costs associated with above ground hardware maintenance, operations, and administrative 

tasks. The EPA received no substantive comment on the draft report, other than a concern that the 

savings identified therein may not come to pass as quickly as envisioned in the draft report if the EPA 

does not provide updated guidance on comparable measures for the OTR states. We have addressed this 

concern by issuing guidance for the states concomitantly.

28 EPA will post this action at the following 

web site address: http://www.epa.gov/glo/actions.html

As part of the re-analysis following the NPRM, the EPA reviewed the input values used for the 

proposal draft. Most input values were confirmed as reasonable and representative but it was concluded 

that two of the values should be updated. These include: (1) the pre-tax price of gasoline used in the 

foregone vapor recovery savings calculation, which increased from $2.30 in 2010 to $3.04 in 2011 

(average price per gallon), and (2) the number of Stage II facilities potentially affected by SIP revisions 

removing Stage II requirements in non-California Serious, Severe and Extreme ozone nonattainment 

areas which increased from 26,900 to 30,600 in 19 states and the District of Columbia. As discussed in 

 

28 “Guidance on Removing Stage II Gasoline Vapor Control Programs from SIPs and Assessing 

Comparable Measures.” U.S. EPA Office of Air and Radiation, issued at the same time as the final rule.
(Draft EPA Responses to OMB Comments)

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our final regulatory support document, the EPA estimates recurring cost savings of about $3,000 per 

year for a typical gasoline dispensing facility, and an annual nationwide savings of up to $91 million if 

Stage II is phased out of the approximately 30,600 dispensing facilities outside of California that are 

required to have Stage II vapor recovery systems under section 182(b)(3) of the CAA.29 This analysis 

assumes that Stage II is removed from GDFs over a three year time frame in an equal number each year. 

What actually occurs will depend on actions by the individual states. The 2013 net present value of these 

long term annual savings over a five year period is $83 million at a 3 percent discount rate and $74 

million at a 7 percent discount rate. 

VIII. Statutory and Executive Order Reviews

A. Executive Orders 12866: Regulatory Planning and Review and Executive Order 13563: Improving 

Regulation and Regulatory Review

Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), this action is a “significant 

regulatory action” because it raises novel legal or policy issues arising out of legal mandates. 

Accordingly, the EPA submitted this action to the Office of Management and Budget (OMB) for review 

under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011) and any changes made in 

response to OMB recommendations have been documented in the docket for this action.

B. Paperwork Reduction Act

This action does not impose an information collection burden under the provisions of the 

Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Burden is defined at 5 CFR 1320.3(b). It does not 

contain any recordkeeping or reporting requirements.

C. Regulatory Flexibility Act

 

29 See “Final Regulatory Support Document, Decommissioning Stage II Vapor Recovery, Financial 

Benefits and Costs,” available in public docket, EPA-HQ-OAR-2010-1076.
(Draft EPA Responses to OMB Comments)

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The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory 

flexibility analysis of any rule subject to notice and comment rulemaking requirements under the 

Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a 

significant economic impact on a substantial number of small entities. Small entities include small 

businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of this action on small entities, small entity is defined as: 

(1) a small business as defined in the Small Business Administration’s (SBA) regulations at 13 CFR 

121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school 

district or special district with a population of less than 50,000; and (3) a small organization that is any 

not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of this action on small entities, I certify that this action 

will not have a significant economic impact on a substantial number of small entities. This rule will not 

impose any new requirements on small entities. Rather, it provides criteria for reducing existing

regulatory requirements on gasoline dispensing facilities, some of which may qualify as small 

businesses.

D. Unfunded Mandates Reform Act

This action contains no federal mandates under the provisions of Title II of the Unfunded 

Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538 for state, local, or tribal governments or 

the private sector. The action imposes no enforceable duty on any state, local or tribal governments, or 

the private sector. Therefore, this action is not subject to the requirements of sections 202 and 205 of the 

UMRA. 

This action is also not subject to the requirements of section 203 of UMRA because it contains 

no regulatory requirements that might significantly or uniquely affect small governments. This action 
(Draft EPA Responses to OMB Comments)

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addresses the removal of a requirement regarding gasoline vapor recovery equipment, but does not 

impose any obligations to remove these programs.

E. Executive Order 13132: Federalism

This action does not have federalism implications. It will 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. This action does not impose any new mandates on state or local governments. Thus, Executive 

Order 13132 does not apply to this rule. 

F. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments

This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 

67249, November 9, 2000). It will not have substantial direct effects on tribal governments, 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 in Executive Order 

13175. Thus, Executive Order 13175 does not apply to this rule. 

G. Executive Order 13045: Protection of Children from Environmental Health and Safety Risks

The EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to 

those regulatory actions that concern health or safety risks, such that the analysis required under section 

5-501 of the Executive Order has the potential to influence the regulation. This action is not subject to 

Executive Order 13045 because it does not establish an environmental standard intended to mitigate 

health or safety risks.

H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, 

Distribution, or Use
(Draft EPA Responses to OMB Comments)

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This action is not a “significant energy action” as defined in Executive Order 13211 (66 FR 

28355 (May 22, 2001)), because it is not likely to have a significant adverse effect on the supply, 

distribution, or use of energy. It does not impose additional costs on gasoline distribution, but rather 

promises to lower operating and maintenance costs for gasoline dispensing facilities by facilitating 

removal of redundant gasoline refueling vapor controls. 

I. National Technology Transfer Advancement Act 

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 ("NTTAA"), 

Public Law 104-113, 12(d), (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its 

regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. 

Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, 

sampling procedures, and business practices) that are developed or adopted by voluntary consensus 

standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the 

Agency decides not to use available and applicable voluntary consensus standards. 

This rulemaking does not involve technical standards. Therefore, EPA is not considering the use 

of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations 

and Low-Income Populations

Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on 

environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and 

permitted by law, to make environmental justice part of their mission by identifying and addressing, as 

appropriate, disproportionately high and adverse human health or environmental effects of their 

programs, policies, and activities on minority populations and low-income populations in the United 

States. 
(Draft EPA Responses to OMB Comments)

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The EPA has determined that this final rule will not have disproportionately 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. This action proposes to waive the requirement for states to adopt largely redundant 

Stage II programs, based on a determination of widespread use of ORVR in the motor vehicle fleet. 

K. Congressional Review Act

The Congressional Review Act, 5 U.S.C. 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. The 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. 804(2). This rule will be effective upon publication in the Federal 

Register.
(Draft EPA Responses to OMB Comments)

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Page 33 of 34 - Air Quality: Widespread Use for Onboard Refueling Vapor Recovery and Stage II 

Waiver

IX. Statutory Authority

The statutory authority for this action is provided by the CAA, as amended (42 U.S.C. 7401, et 

seq.); relevant provisions of the CAA include, but are not limited to sections 182(b)(3), 202(a)(6), 

301(a)(1), and 307(b), and 307(d)(42 U.S.C._7511a(b)(3), 7521(a)(6), 7601(a)(1), 7607(b), and 

7607(d)). 

List of Subjects in 40 CFR Part 51

Environmental protection, Administrative practice and procedure, Air pollution control, Ozone, 

Particulate matter, Volatile organic compounds.

_________________________

Dated: 

_________________________

Lisa P. Jackson,

Administrator.
(Draft EPA Responses to OMB Comments)

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For reasons set forth in the preamble, part 51 of chapter I of title 40 of the Code of Federal Regulations 

is amended as follows:

Part 51-REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF 

IMPLEMENTATION PLANS.

 1. The authority citation for part 51 continues to read as follows:

 Authority: 23 U.S.C. 101; 42 U.S.C. 7401-7671q

Subpart 6 – [Amended] to read as follows:

 2. Section 51.126 is added.

§ 51.126 Determination of widespread use of ORVR and waiver of CAA section 182(b)(3) Stage II 

gasoline vapor recovery requirements

(a) Pursuant to section 202(a)(6) of the Clean Air Act, the Administrator has determined that, effective 

[INSERT DATE OF PUBLICATION IN THE FEDERAL REGISTER], onboard refueling vapor 

recovery (ORVR) systems are in widespread use in the motor vehicle fleet within the United States.

(b) Effective [INSERT DATE OF PUBLICATION IN THE FEDERAL REGISTER], the 

Administrator waives the requirement of Clean Air Act section 182(b)(3) for Stage II vapor recovery 

systems in ozone nonattainment areas regardless of classification. 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.