May 8, 2012

OAR-2010-1076

Determination of Widespread Use of Onboard Refueling 

Vapor Recovery (ORVR) and Waiver of Stage II Vapor 

Recovery Requirements

Summary of Public Comments and Responses 

U. S. Environmental Protection Agency

OAQPS/Air Quality Policy Division

State and Local Programs Group (C539-03) 

Research Triangle Park, North Carolina 27711

May 8, 2012
ii

Disclaimer

This report has been reviewed by the Air Quality Policy Division of the Office of Air Quality

Planning and Standards, and EPA, and approved for publication. Mention of trade names or 

commercial products is not intended to constitute endorsement or recommendation for use.
iii

TABLE OF CONTENTS

Chapter Page 

LIST OF TABLES.......................................................................................................................iii

Introduction................................................................................................................................... 1

II. Comments Regarding EPA’s Proposed Criteria for Determining ORVR Widespread 

Use ......................................................................................................................................... 4

III. Comments Regarding EPA’s Proposed Waiver of Stage II Vapor Recovery Required 

Under CAA Section 182(b)(3)........................................................................................... 15

IV. Comments Regarding State Implementation Plan Revisions........................................... 28

V. Comments Regarding Effects to Stage II Programs in Ozone Nonattainment Areas of 

the Ozone Transport Region............................................................................................. 35

VI. Comments Regarding Decommissioning of Stage Vapor Recovery Systems ................. 43

VII. Comments Regarding EPA’s Proposed Estimated Cost Savings................................... 44

LIST OF TABLES

Table Page 

1. List of Commenters............................................................................................................1

2. Measured Refueling Emission Rate by Model Year..........................................5
1

Introduction 

The Environmental Protection Agency (EPA) proposed criteria for determining

widespread use of onboard refueling vapor recovery (ORVR) for control of gasoline emissions 

during refueling of vehicles at gasoline dispensing facilities (GDFs). This action proposed to 

establish June 30, 2013, as the date by which the Administrator determined that ORVR for 

capturing refueling emissions when vehicles are refueled with gasoline is in widespread use. The 

action also proposed that certain federal statutory requirements for Stage II gasoline vapor 

recovery at GDFs would be waived as of that date.

During the public comment period for the proposed rule, EPA received comments from 

27 entities including: twelve industry representatives; ten states; five air quality management 

agencies; and, one citizen group. Included in Table 1 below is the list of commenters and the 

associated Docket ID number for their comments.

Table 1. List of Commenters on Proposed Rule: Criteria for Determining Widespread Use 

of Onboard Refueling Vapor Recovery and Waiver of Stage II Requirements

Docket ID Commenter Name

2010-1076-0032

David H. Fialkov, Counsel, Steptoe & Johnson, LLP. Representing 

multi-signatory parties involved in nearly all retail fuel outlets in the 

United States.

2010-1076-0034 Phillip E. Russo, CAE, Executive Director, National Association of 

Fleet Administrators

2010-1076-0035 James N. Goldstene, Executive Officer, California Air Resources 

Board.

2010-1076-0036 Erin Faessler, Project Development Manager, Vapor Systems 

Technologies, Inc.

2010-1076-0037 Arthur N. Marin, Executive Director, Northeast States for Coordinated 

Air Use Management

2010-1076-0038 Kurt J. Weist, Senior Attorney, Citizens for Pennsylvania’s Future

2010-1076-0039 William L. Driscoll, Executive Director, Ozone Transport Commission

2010-1076-0040

J. Jared Snyder, Assistant Commissioner, Office of Air Resources, 

Climate Change & Energy, New York State Department of 

Environmental Conservation

2010-1076-0041 Edward S. Kubinsky, Jr., Special Projects Manager, Crompco, LLC

2010-1076-0042

Laurel L. Kroack, Chief, Bureau of Air, Illinois Environmental 

Protection Agency
2

Table 1. List of Commenters on Proposed Rule: Criteria for Determining Widespread Use 

of Onboard Refueling Vapor Recovery and Waiver of Stage II Requirements

Docket ID Commenter Name

2010-1076-0043 Kyra L. Moore, Director, Missouri Department of Natural Resources

2010-1076-0044 Joe Kubsh, Executive Director, Manufacturers of Emission Controls 

Association

2010-1076-0045 Myra C. Reece, Chief, Bureau of Air Quality, South Carolina 

Department of Health and Environmental Control

2010-1076-0046

David H. Fialkov, Counsel, Steptoe & Johnson, LLP. Representing 

multi-signatory parties involved in nearly all retail fuel outlets in the 

United States.

2010-1076-0047

California Environmental Protection Agency, California Air Resources 

Board, Vapor Recovery Test Procedures: (TP-201.1E) “Leak Rate and 

Cracking Pressure of Pressure/Vacuum Vent Valves” and (TP-201.3) 

“Determination of 2 Inch WC Static Pressure Performance of Vapor 

Recovery Systems of Dispensing Facilities”

2010-1076-0048 James A. Capp, Chief, Air Protection Branch, Georgia Environmental 

Protection Division

2010-1076-0049 John Eichberger, Vice President, Government Relations, National 

Association of Convenience Stores

2010-1076-0050 Mark S. Morgan, Regulatory Counsel, Petroleum Marketers 

Association of America

2010-1076-0051 R. Timothy Columbus, General Counsel, Society of Independent 

Gasoline Marketers of America

2010-1076-0052

Robert L. Greco, API Group Director, Downstream & Industry

Operations, American Petroleum Institute

2010-1076-0053

Barry R. Wallerstein, D. Env., Executive Director, South Coast Air 

Quality Management District.

2010-1076-0054 Kevin Tokunaga, Program Manager, Glenn County Air Pollution 

Control District

2010-1076-0055

Nancy L. Seidman (Massachusetts), Co-Chair and Barry R, Wallerstein 

(Los Angeles, CA), Co-Chair, Mobile Sources and Fuels Committee, 

National Association of Clean Air Agencies

2010-1076-0056 DUPLICATED RECORD OF 2010-1076-0042: Laurel L. Kroack,, 

Chief, Bureau of Air, Illinois Environmental Protection Agency

2010-1076-0057 Jason S. Hicks, CAFM, Transportation and Facilities Department 

Manager

2010-1076-0058 Sheila C. Holman, Director, Division of Air Quality, North Carolina 

Department of Environment and Natural Resources
3

Table 1. List of Commenters on Proposed Rule: Criteria for Determining Widespread Use 

of Onboard Refueling Vapor Recovery and Waiver of Stage II Requirements

Docket ID Commenter Name

2010-1076-0059 Ted Tiberi, President & Founder, ARID Technologies, Inc. 

2010-1076-0060 Eddy Tabet, PE, President and CEO, Technology Engineering and 

Construction, Inc.

2010-1076-0061 David Garland, No-Go Nozzle (Comment submitted after close of 

comment period)

I. Background

This rule will allow Serious and above ozone nonattainment areas that are now required 

under the federal Clean Air Act (CAA) to have Stage II gasoline vapor recovery equipment on 

GDFs to remove the requirement after the waiver date. States will have to submit a SIP revision 

to EPA removing the Stage II requirements and get it approved by EPA in order to take this 

action. In some cases, states in the Ozone Transport Region (OTR) may have to adopt measures 

that obtain emissions reductions comparable to those achieved by Stage II to make up for any 

emissions increases which might arise from removing Stage II incremental to ORVR control. 

This rule allows states to retain their Stage II requirements if they wish.

EPA regards Stage II vapor recovery system decommissioning to involve equipment 

replacement and elimination of activities and actions associated with operating Stage II vapor 

recovery systems. We have estimated the costs to facilities decommissioning Stage II vapor 

recovery systems to indicate a long term substantial annual savings of over $91 million, 

nationwide.

Based on our evaluation of the available data and appropriate criteria for determining 

under CAA section 202(a)(6) that widespread use of ORVR has occurred, EPA proposed a 

determination of ORVR widespread use and a general waiver of the CAA section 182(b)(3) 

Stage II requirement effective nationwide, June 30, 2013. Based on further EPA analysis and 

comments on the proposed rule, ORVR will be deemed in widespread use and the CAA section 

182(b)(3) requirement will be waived upon the effective date of the final rule. This would apply

to any area that currently requires a Stage II program under CAA section 182(b)(3). Subsequent 

to the effective waiver date of the CAA section 182(b)(3) Stage II requirement, areas currently 

implementing SIP-approved Stage II programs, as a result of obligations under the 1-hour or 

1997 8-hour ozone NAAQS, would be required to continue implementing these programs until 

EPA approval of a SIP revision that removes the requirement from the state’s ozone 

implementation plan. Additionally, any nonattainment area classified Serious or above for the 

first time after approximately December 31, 2009, would not be required to adopt and implement 

a new Stage II program under CAA section 182(b)(3). This is because such areas, under the 
4

terms of CAA section 182(b)(3), would not be required to implement Stage II programs until 2 

and a half years after such classification.

During the public comment period, EPA received comments from 27 entities. In this 

document, we summarize all of those comments and provide our responses. All comments, 

information and data submitted by commenters and discussed in this document are available in 

the Air Docket, Widespread Use of ORVR and Stage II Waiver, Docket ID No. EPA-HQ-OAR2010-1076.

II. Comments Regarding EPA’s Proposed Criteria for Determining ORVR 

Widespread Use

Comment: Commenters (EPA-HQ-OAR-2010-1076-0034, 0037, 0039, 0044, 0045, 

0048, 0049, 0051, 0052, 0054, 0055, 0057, 0058) supported the criteria EPA used in the 

proposed rule to determine ORVR widespread use on June 13, 2013 for purposes of controlling 

motor vehicle refueling emissions throughout the motor vehicle fleet in any area that currently 

requires a Stage II vapor recovery program under CAA section 182(b)(3).

Response: EPA considered two criteria in establishing the widespread use date. These 

included the date when 75 percent of gasoline would be dispensed to ORVR-equipped vehicles 

and the date when ORVR and Stage II would get equivalent control of refueling emissions based 

on analysis using parameters discussed in the NPRM. After considering the public comments 

received, EPA is determining that ORVR will be in widespread use on the effective date of the 

final rule.

Comment: Commenter (EPA-HQ-OAR-2010-1076-0037) supported EPA’s approach of 

creating one national date for determining when ORVR widespread use has occurred while 

providing flexibility for a state to conduct a state-specific analysis to support an alternative date.

Response: EPA’s final rule establishes a single national date for determining widespread 

use of ORVR. Because EPA’s final rule provides ORVR to be in widespread use at the time of 

publication of the notice in the Federal Register, it is no longer necessary for States to conduct 

separate analysis to establish an earlier date. 

Comment: The commenter expressed concerns regarding the 98 percent ORVR overall 

efficiency used in EPA’s analysis for the proposed rule. The commenter was concerned that the 

EPA’s study lacks analysis of critical data elements. The commenter listed specific issues not 

included in analysis of the ORVR efficiency rating as: (1) a lack of data on high mileage vehicles 

(>100,000 miles); (2) determining which of the many capture ratings to use with various 

alternative fuels; (3) determining failures that would not be identified by on-board diagnostic 

(OBD) systems; and (4) faster implementation of recalls when problems are found. The 

commenter urged EPA to investigate these issues and develop a more robust monitoring system

to gauge ORVR effectiveness, including strategies to address failures of the ORVR system not

detected by on board diagnostics (OBD) systems. The commenter was concerned that EPA had

overstated the benefits of ORVR without sufficient data to support the continued effectiveness of 
5

ORVR over time. Moreover, the commenter wanted assurances that SIPs and Rate of Progress 

(ROP) plans use realistic numbers when assessing impacts of the ORVR program.

Response: Concerning the 98 percent ORVR efficiency used in EPA’s analysis, in the 

NPRM EPA referenced results of the manufacturer in-use verification program where there were 

over 1,160 laboratory tests of in-use ORVR-equipped vehicles tested in an as-received condition 

which led to an in-use efficiency of about 98 percent. The study used vehicles with over 67,000 

miles odometer readings.

The data used in the NPRM covered data available through November 2009. Since that 

analysis was completed an additional 478 data points have become available mostly for model 

years 2006-2010. As presented below, several conclusions can be drawn from the fuller data set. 

First, the overall efficiency for the full set of 1,638 test points is still 98 percent, as shown in 

Table 1. For the 1,638 test vehicles, the weighted average emission rate was 0.068 g/gal which 

yields an efficiency of 98 percent when compared to the uncontrolled emission rate of 3.32 g/gal 

expected under these test conditions. The data set used by EPA to draw its conclusions about the 

effectiveness of ORVR is comprised of 1,638 individual tests covering vehicles from eleven 

model years. Over 95 percent of these vehicles passed the standards and the average vehicle had 

an emission level of only about one-third of the level of the emission standard. Contrary to the 

concerns of the commenter, EPA believes this is a robust data set and that it well supports our 

conclusions about ORVR efficiency in-use. 

 Table 2: Measured Refueling Emission Rate by Model Year

Model Year Average Measured 

Emission Rate

Number of Test 

Vehicles

2000 .07 20

2001 .07 75

2002 .08 77

2003 .07 100

2004 .10 283

2005 .07 282

2006 .06 263

2007 .07 171

2008 .05 139

2009 .04 121

2010 .04 107
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Second, EPA examined the data to look for trends in changes in capture efficiency as the

vehicles accrue mileage. To conduct this analysis EPA calculated average mileage and emission 

rates in six separate mileage increments. This included 20,000 miles increments between zero 

and 100,000 miles and all data above 100,000 miles. As can be seen in Figure 1 there does not 

seem to be a loss in efficiency even for vehicles over 100,000 miles. Based on this type of 

information EPA recently set the assigned deterioration factor for ORVR to 0.0 g/gal for small 

volume manufacturers and small volume test groups.1

Note: The points above are the average mileage in the range and the average g/gal value

 

The commenter did not explain their point regarding which capture rating to use with 

various alternative fuels. There are no refueling emission standards for dedicated CNG and LPG 

vehicles as they have sealed fuel delivery systems. There are refueling emission standards for 

dedicated methanol and dual fuel LPG, and CNG vehicles. These standards are basically of the 

same identical or equivalent stringency to that required for gasoline-powered vehicles. The 

population of these vehicles is quite small and EPA has no in-use emission rate data for these 

groups. It should be noted that they are not covered by Stage II vapor recovery requirements, 

since they do not refuel at gasoline dispensing facilities. 

The commenter also addressed the capability of vehicle onboard diagnostic (OBD) 

systems to identify performance problems in ORVR systems. Most ORVR systems have five 

 

1

 US EPA Dear Manufacturer letter, Assigned Deterioration Factors, CD-12-07 (Revised) 

(LDV/LDT/MDPV/HDV/ICI/LD-AFC), March 30, 2012 .

14824, 0.0714

26750, 0.0495

54232, 0.079

68171, 0.0765

89381, 0.0672

109170, 0.0625

0

0.01

0.02

0.03

0.04

0.05

0.06

0.07

0.08

0.09

0 20000 40000 60000 80000 100000 120000

g/gallon

Vehicle Odometer

Figure 1

Refueling Emissions vs. Mileage
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basic sub-systems. These include the fill pipe seal, the tank valve, the vapor line, the activated 

carbon canister with solenoid, and the purge valve and lines. The fill pipe seal is not covered by

OBD. All current vehicle models employ a liquid seal to block vapor escaping from the fill pipe 

opening instead of a mechanical seal. A liquid seal is created by the flowing gasoline, so it is 

new for each refueling event and not subject to failure. Most vehicles employ some form of a 

tank valve which acts as liquid/vapor separator and aids in the closing of the opening from the 

tank to the vapor line once the refueling event is complete. The performance of this valve is not 

covered by OBD, but if it fails in the closed position refueling will not be possible. There is a 

vapor line from the fuel tank to the activated carbon canister. A failure in the connection of this 

vapor line at either the tank or canister end or a leak in the line itself will be detected by the OBD 

evaporative system leak monitoring requirement as would any other leak in the line or the 

fuel/vapor control system. Since essentially all current vehicles employ integrated 

evaporative/refueling control systems they use the same activated carbon canister and purge 

hardware. The OBD system is required to be able to detect the absence of purge air flow which 

could indicate purge valve failure, a blockage in the line from the purge valve to the canister, and 

to some degree a reduction in air flow through the canister as a result of plugged filters or a 

breakdown in the carbon bed. The degree of failure would not necessarily be known. OBD 

would detect the complete absence of a canister since it would register as a gross leak in the 

system or render the OBD evaporative emission system leak check hardware inoperative, but it 

would not detect a canister which has lost efficiency. The commenter raised concern that there 

might be aspects of the OBD system requirements that do not monitor the performance of ORVR 

systems. As mentioned above, the only area of concern here would be a loss of canister 

efficiency. However, the results of both the ORVR and evaporative system IUVP programs do 

not indicate this is a problem as pass rates in both programs exceed 95 percent.2

As part of other ongoing work EPA has examined OBD data taken from five state I/M 

programs. The data covered model years 1996-2010; the calendar years varied by state with the 

earliest being 2002 and the latest 2006. For all evaporative system related OBD codes (P0400-

P0455 and P0465-P0469) DTC frequency values ranged between 0.0 and 3.8 percent with the 

vast majority of values between 0.0 and 2.0 percent.3 This does not necessarily address the 

magnitude of the emission impacts of vehicles with OBD evaporative system codes as the data

was not disaggregated by code. However, it shows that the frequency of all problems is small. 

Furthermore, it is worth noting that there were several cases of vehicles with evaporative system 

OBD codes in the IUVP data discussed above and their test results are reflected in the overall 

emission averages.

Finally, it is worth noting that the in-use ORVR efficiency in the current version of the 

MOVES model is based on 98 percent efficiency. However, it also includes some projections 

for losses in ORVR efficiency based on data from older evaporative emission control systems. It 

 

2 See the progress reports at http://www.epa.gov/otaq/oms-def.htm

3 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.
8

does not include consideration of the ORVR design features and OBD information presented 

above or much of the in-use performance data derived from the IUVP program. 

Finally, as was discussed in the NPRM and supporting documentation it should be noted 

that neither ORVR nor Stage II applies directly to the largest of the heavy-duty gasoline vehicles 

or to motorcycles. The ORVR requirement does not apply to these two classes of highway

motor vehicles and neither of these classes is included in the groups tested during Stage II system 

certifications. On a nationwide basis these vehicles use less than one percent of all highway

gasoline.

4

Comment: Commenter (EPA-HQ-OAR-2010-1076-0038) stated that EPA’s selection of 

June 30, 2013 as the widespread use date or ORVR is arbitrary and unreasonable. The 

commenter recommended that EPA should determine that ORVR will be in widespread use no 

earlier that November 30, 2013. The commenter indicated that EPA’s methodology in 

determining widespread use, presented ORVR use percentages of 74.1 percent for 2012 and 77.7 

percent for 2013. The commenter believed the proposed rule correctly presented the target 

control efficiency of 77.4 percent, expected to be achieved between the end of calendar year 

2012 and the end of 2013 that is at some point during the calendar year 2013 and therefore 

proposes the midpoint of the calendar year, June 30, 2013. However, the commenter argued that 

a percentage that is increasing over time will reach a specified level at some point during a given 

year obviously does not imply that it will do so by the midpoint of that year. The commenter 

suggested an alternative to using the midpoint would be to perform a simple, straight-line 

interpolation between the two end-of-year percentages for 2012 and 2013. Such an interpolation 

reveals that the target of 77.4 percent would not be achieved until 334.58 days into 2013, or 

November 30, 2013. The commenter asserted that EPA should select November 30 or December 

31, 2013 as the date on which widespread use of ORVR will occur. 

Response: 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. See CAA section 

202(a)(6). As discussed in the NPRM, it is EPA’s view that we have broad discretion in how to

define ORVR widespread use and the manner in which any final determination is implemented. 

As can be seen in Table 1 in the NPRM, EPA considered many different criteria for determining 

widespread use of ORVR including ORVR vehicle VMT, ORVR vehicle fleet penetration, 

percentage of gasoline dispensed to ORVR vehicles, fraction of refueling emissions controlled 

by ORVR vehicles, and, as discussed in the text, equivalent control of refueling emissions 

between ORVR and Stage II vapor recovery. EPA ultimately based the NPRM on the volume of 

gasoline dispensed to ORVR-equipped vehicles and for comparison the cross-over date where 

reductions achieved by ORVR alone would equal reductions achieved by Stage II systems alone. 

For the fraction of gasoline dispensed to ORVR-equipped vehicles, EPA selected a value of 75 

 

4

 Derived from Tables in Chapter 4 of the National Transportatios Statistics for 2011; this can be found at 

http://www.bts.gov/publications/national_transportation_statistics/
9

percent as a very reasonable indicator that ORVR was in widespread use. For the equivalent 

control approach EPA presented an analysis which indicated that an ORVR value of 77.4 percent 

would provide equivalent control as Stage II based on the Stage II in-use efficiency values and 

exemption rates used. The 75 percent approach indicated a date near the end of 2012 (November) 

while the ORVR/Stage II equivalent approach indicated a date about a year later. As discussed in 

the NPRM based on this information, EPA concluded that the midpoint of 2013 was a reasonable 

date for widespread use. Arguably, given EPA’s discretion, a date any time after 75 percent was 

achieved might also have been appropriate. Thus, EPA does not agree with the general 

assertions of the commenter that our approach is arbitrary and unreasonable, and while we 

understand the commenter’s reasoning we do not find the comment compelling. As mentioned 

above, the CAA gives EPA broad discretion on how to determine widespread use and we believe 

the methodology and dates presented in the NPRM were appropriate based on the data, our 

analysis, and the statute. The widespread use date in the final rule is earlier than proposed, but 

EPA used the same fundamental data sources and approach as discussed in the NPRM. These 

were widely supported by the commenters. We believe the methodology and date presented in 

the FRM are appropriate and consistent with the methodology used in the NPRM and the statute.

Comment: Commenter (EPA-HQ-OAR-2010-1076-0044) explained that ORVR 

systems, comprised of a carbon canister, prevent the escape of fuel vapors through the fuel filler 

pipe and prevent liquid gasoline from exiting the fuel tank when tipped beyond horizontal. The 

displaced vapor is directed into the carbon canister and trapped. The commenter added that 

during engine operation, fresh air is purged through the canister to regenerate the carbon so that 

it is ready for subsequent fueling or diurnal events. The commenter stated that purged vapors are 

consumed in the combustion process. The commenter made clear that today, all new passenger 

vehicles manufactured in North America are equipped with ORVR systems. The commenter 

contended that ORVR systems have been shown to be highly effective at reducing refueling 

hydrocarbon emissions (approximately 98 percent refueling hydrocarbon emissions reduction 

using ORVR compared to approximately 60 percent refueling emissions reduction associated 

with Stage II vapor recovery technologies). The high overall emissions reduction efficiency of 

ORVR systems is achieved with only a small incremental cost of $10 to $15 compared to vehicle 

enhanced evaporative emission technologies that do not include ORVR capabilities. The 

commenter indicated economic savings are accumulated by the vehicle owner by stating that 

each year an average vehicle owner will recover about 17 liters of fuel from refueling and diurnal 

events, if their vehicle has an ORVR canister. The commenter explained that this represents an 

energy savings of 0.7 percent. The commenter further indicated that five liters per year of this 

fuel is recovered during refueling events alone and results in a payback time of only two years in 

decreased fuel purchases for the ORVR system. The commenter added that carbon canisters have 

been shown to last the lifetime of the vehicle, with no normal maintenance or replacement and 

with little or no deterioration in performance.
10

Response: EPA thanks the commenter for presenting supportive input on how ORVR 

technology captures refueling vapors and helps protect human health and the environment while 

saving costs and fuel in the process.

Comment: Commenter (EPA-HQ-OAR-2010-1076-0055) acknowledged that EPA 

developed a methodology that compared the efficiency of Stage II recovery systems and the 

number of ORVR equipped vehicles in the fleet. The commenter also acknowledged that EPA 

indicated if a state or locality finds that removing Stage II requirements would reduce the overall 

level of reductions for which it previously obtained credit the state or locality, pursuant to the 

CAA, would need to make a demonstration that removing Stage II would not interfere with 

attaining or maintaining the ozone NAAQS. The commenter suggested that EPA develop 

implementation guidance that EPA would release in conjunction with the final rule, and that 

EPA should provide an example methodology that accounts for all of the emissions reduction 

benefits of Stage II recovery systems including the number of non-ORVR equipped vehicles that 

would no longer be refueling at Stage II dispensing facilities. The commenter stated that the 

methodology should account for any dis-benefits such as excess emissions that occur when 

ORVR-equipped vehicles refuel at incompatible Stage II installations. 

The commenter concurred with EPA’s initiative to determine widespread use of ORVR. 

The commenter concluded that EPA’s widespread use determination will provide an opportunity

for individual states or localities to fully demonstrate compliance with applicable CAA 

requirements to remove Stage II recovery systems if they choose. The commenter added that 

EPA’s determination of widespread use will allow future ozone nonattainment areas to forego 

installation of Stage II systems. The commenter further concluded that in numerous areas, 

continued deployment of Stage II recovery systems will provide additional environmental 

benefits. However, the commenter added that while they concur that EPA has the authority to 

determine when ORVR is in widespread use, they added that the agency must clearly state in the 

final rule that its determination of widespread use does not automatically allow for discontinued 

use of Stage II recovery systems. The commenter suggested that EPA should provide greater 

detail on the environmental impacts of removing or continuing to operate Stage II recovery

systems so that individual regions can make informed decisions on whether or not to 

decommission these systems. Lastly, the commenter suggested that state and local air agencies 

must be provided with clear guidance on a streamlined SIP revision process if they desire to 

decommission Stage II systems.

Response: EPA appreciates the commenter’s concurrence that EPA has the necessary

authority to waive Stage II requirements when it is determined that ORVR is in widespread use. 

EPA agrees with the importance of maintaining the overall level of reductions for which the SIP 

credit was previously obtained until EPA approves a SIP submission removing Stage II. To 

discontinue its Stage II program under section 182(b)(3), a State should submit a SIP revision. 

EPA will act on the SIP revision through notice and comment rulemaking. The revision would 

also be subject to the CAA section 110(l) requirement that the SIP revision not interfere with any
11

applicable requirement concerning attainment and reasonable further progress, or any other 

requirement of the CAA.

EPA fully understands that the commenter requests a methodology to account for all 

emission impacts of retaining or removing Stage II including benefits and dis-benefits of nonORVR equipped vehicles that would no longer be refueling at Stage II dispensing facilities and 

the excess emission that may occur when ORVR equipped vehicles refuel at vacuum assist type

Stage II facilities. EPA intends to provide guidance documents addressing removal of Stage II 

programs to be issued subsequent to the publishing of the final rule. This will include guidance 

addressing how to assess the provisions of CAA section 110(l) (potential emission control losses 

from removing Stage II should not interfere with any applicable requirement concerning 

attainment and reasonable further progress, or any other requirement of the CAA) as well as how 

to factor in the effects of ORVR/vacuum assist Stage II system incompatibility in the overall 

reductions from Stage II systems in this assessment.

As suggested by the commenter, EPA points out in the final rule that States may choose 

to continue or enhance Stage II controls in a particular area if they continue to achieve air quality

benefits. 

In response to the commenter’s request to provide detail on environmental impacts of

either removing or continuing operation of Stage II systems, EPA notes that this is an areaspecific issue. The analysis supporting EPA’s ORVR widespread use determination used what 

we believe to be reasonable and typical national values. In assessing the potential environmental 

impact in their state/area, states can use EPA’s basic methodology but use state/area specific 

input parameters instead of the national values. For example, EPA used 86 percent efficiency

and 10 percent exemption rate for Stage II. Lower or different values may be justified. Also, a 

state may in fact experience a faster ORVR vehicle penetration than the national average or a 

larger or smaller incompatibility effect. A change in these parameter values may be justified on 

a case-by-case basis and this could help to inform the actions of any state/area in retaining or 

removing Stage II.

Comment: Commenter (EPA-HQ-OAR-2010-1076-0035) wrote that the state

(California) has been a leader in the area of gasoline vapor recovery with the most 

comprehensive program in the nation. The commenter stated that this program has been a part of 

the State’s air quality strategy for over 35 years and credited this program has yielded costeffective emission reductions in the most ozone impacted areas. The commenter further states 

that Stage II vapor recovery requirements were extended into ozone attainment areas to reduce 

the public’s exposure to benzene. The commenter maintained that the Stage II program as 

implemented in over 10,000 gasoline service stations in the state surpassed the federal Stage II 

requirements. The commenter presented standards that exceed federal requirements as follows: 

1) ORVR compatibility and pressure management to control emission lost from the underground 

storage tank through vent lines, vapor processor exhaust, and fugitive leak sources; 2) In-station 

diagnostics requirements that help maintain in-use effectiveness; 3) Stringent standards for 

specially designed nozzles that reduce emissions from liquid retention, drips, and spills; and 4) 
12

Further emission reductions are anticipated from a newly proposed low permeation fuel hose 

standard that the State will consider in 2011. The commenter concluded that these program 

elements provide emission reductions that exceed those of Stage II alone and that these 

reductions are unaffected by increasing ORVR penetration. The commenter construed that their 

area has a critical need for reducing smog-forming emissions and will continue to use Stage II 

vapor recovery until such time in the future a re-examination of ORVR and Stage II programs

can be undertaken. 

Commenter (EPA-HQ-OAR-2010-1076-0053) pointed out that their air management 

district has been implementing enhanced State II vapor recovery systems for several years and 

has lead to about 95 percent vapor capture efficiency, which the commenter exemplified is much 

higher than the national average of 86 percent. The commenter stated that in their area, a 

significantly larger number of older non-ORVR equipment vehicles continue to operate. The 

commenter concluded that combined with the estimated 95 percent efficiency of Stage II systems 

in the area, the commenter claimed substantial emission reductions are garnished with Stage II 

systems. As such, the commenter stated that ORVR equipped vehicle population must be closer 

to 95 percent before their area would decommission Stage II systems. The commenter further 

stated that to do otherwise would not be feasible given that the area could not find additional 

emission reduction measures to supplant any shortfalls associated with the Stage II systems. The 

commenter stated that the methodology developed by EPA to determine the date of widespread 

ORVR use does not fully account for the emission reduction benefits when non-ORVR equipped 

vehicles refuel at Stage II vapor recovered equipped facilities. This commenter believed that 

continued deployment of Stage II systems in their region would continue to generate 

environmental benefits. The commenter closed by stating that they concur with the ORVR 

determination of widespread use, but EPA must clearly state that this date does not automatically

allow for discontinued use of Stage II systems and to discuss in detail the environmental impacts 

of removing Stage II recovery systems so that individual regions can make informed decisions 

on the need for Stage II systems.

Response: These comments both came from entities located within the state of 

California. California is a national leader in Stage II vapor recovery. No other state has 

programs as aggressive in their scope or implementation or as wide sweeping in dealing with the 

GDF emissions as a system as does California and the various AQMDs. EPA’s proposed rule 

does not require states to waive their Stage II vapor recovery programs and EPA clearly 

reiterates this in the final rule, as suggested by the commenters. States have the option of 

maintaining their requirements and setting ORVR penetration levels of the vehicle fleet for their 

state before they would remove Stage II. EPA defers to the commenter’s in establishing what 

they believe is an appropriate ORVR penetration level before their area would decommission 

Stage II systems. The comprehensive control strategy for GDFs in California provides more 

overall reductions at GDFs than dispenser-based Stage II controls used in other regions but 

offered no data to support their claim of 95 percent efficiency. The commenters did not 

challenge the ORVR efficiency put forth by EPA. The environmental benefits of Stage II vapor 
13

recovery systems and ORVR have been well documented and information is readily available 

from various sources for future work. 

Comment: Commenter (EPA-HQ-OAR-2010-1076-0059), a manufacturer of gasoline 

vapor processor equipment which enhances vapor control at GDFs, stated that many questions 

and conflicts remain on the ORVR system operating parameters for both new systems as well as 

for systems used over an extended period of time. The commenter presented data from the 

California Air Resources Board (CARB) to show that the ORVR systems are not able to meet the 

CAA section 202(a)(6) requirement of 0.2 grams of hydrocarbon emission per gallon of fuel 

dispensed. The commenter included a series of reports and previous correspondence to EPA in 

the ORVR/Stage II arena.

Response: In a March 24, 2010 comment letter to EPA, the commenter makes assertions 

about the in-use efficiency of ORVR. The commenter states that California ARB emission test 

data generated as part of the certification process for Stage II vacuum assist systems 

demonstrates that ORVR controls emit at 2.4 to 5.0 times the 0.20 g/gal emission standard. This 

is data derived from field testing of ORVR vehicles with a Stage II vacuum assist nozzle as part 

of certification testing for the Stage II systems. This is well established standard practice by

ARB, and the requirements and test procedures are well prescribed in their regulations. In the 

ARB Stage II certification procedure and reports, vapor concentration measurements in the 

sleeve and vapor return line from the Stage II nozzle to the dispenser are taken as % C3H8

(propane). These concentrations are converted to gasoline vapor mass and divided by dispensed 

gasoline volume to get a gram /gallon HC emission rate. 

We have reviewed the commenter’s analysis and the three referenced ARB source test 

reports (ST-06-15, ST-06-10, and ST-04-01) and offer the following points in response. For the 

reasons set forth below, we believe the issue identified by the commenter is an artifact of the test 

procedure, test equipment, and the experimental set-up and are not useful in an ORVR efficiency

assessment. 

First, in 40 CFR 86, ORVR vehicles are certified using conventional nozzles, not Stage II 

balance or vacuum assist nozzles. With a liquid seal fill neck approach, which is the approach 

universally used by the manufacturers (as opposed to a mechanical seal approach), the vacuum 

assist nozzle spout sits in the fill pipe in the region between the fuel nozzle restrictor plate and 

the top of the liquid surface which creates the seal. During a dispensing event this is an area 

where turbulent mixing occurs as the dispensed fuel hits the fuel in the vehicle’s fill pipe. This 

fuel in the pipe makes up the flowing liquid seal. (Much like a sink trap, this liquid in the fill 

pipe blocks vapors from leaving the fuel tank through the fill pipe opening.) The dispensing rate 

is up to 10 gal/min; this means that the velocity of the fuel leaving the nozzle spout is on the 

order of 600 ft/min. The collision of this stream of fuel and the fuel in the fill pipe is a prime 

condition for the creation of vapor and gasoline droplets in the fill pipe. Also, most vehicles have 

external vent lines on the fill pipe which improve fill quality and crash safety and route vapor 

from the tank to near the top of the fill pipe. This vapor is then drawn back into the fuel tank 
14

during the refueling event in lieu of fresh air. If fresh air were drawn in, it would lead to a 

greater vapor load to be captured on the activated carbon canister. 

We believe that in the ARB tests the vacuum assist nozzle draws vapor and droplets from 

this area of the fill pipe during the refueling event. These would otherwise stay in fill pipe and 

enter the tank as part of the air stream which accompanies the incoming fuel. Another researcher 

has developed data which supports this conclusion.5

Second, this conclusion is reinforced by work published by ARB in 19986. This research 

shows that the vapor return line concentration varies with system V/L ratio, dispensing rate, and 

even the time point in the overall dispensing event. These are dispensing event and refueling 

nozzle related parameters, not vehicle related. However, the report does show some Stage II 

vapor return line concentration differences between recirculation fill pipe configurations (which 

bring vapor back up nearer to the top of the fill pipe) and those without such recirculation. This 

is a clear link to the nozzle spout fill pipe interface.

Third, in reviewing the ARB source test reports cited by the commenter, it does not 

appear that ORVR and non-ORVR vehicles were segregated in the testing sequence. Thus, it is 

likely that there was vapor hang over in the Stage II vapor return hose from the non-ORVR tests 

to the ORVR tests in at least some situations. This would artificially increase the ORVR result. 

This effect is also seen in the detailed test results in the tables in the March 1998 ARB report 

referenced above. 

Fourth, we would offer that the commenter’s assertions do not appear to be consistent 

with engineering principles. It is not reasonable on its face to conclude that refueling vapor of 

the reported magnitude gets from the tank headspace through the liquid seal and into the fill pipe 

region above the seal. Also, given the dispensing rate, little if any vapor or droplets would be 

expected to get past the stream of air which follows the incoming fuel flow in an ORVR 

refueling event with a conventional nozzle. No supporting data for balance type Stage II systems 

was provided. We believe this would have shown little or no effect since there would be no 

vacuum available to draw off vapor from the fill pipe.

Finally, the commenter expresses a concern that removing Stage II vapor recovery

systems could cause a potential safety hazard for motorists by creating the possibility for an 

explosive air/gasoline vapor mixture near the individual conducting the refueling event. EPA 

studied this issue in 1988 and concluded that both ORVR and Stage II controls would reduce 

what is already a very low incident rate of service station refueling fires related to atomized 

 

5 ORVR Compatibility Study for the Gilbarco Vaporvac VRS, American Petroleum Institute by Tech 

Environmental, Inc., p.3, February 5, 2004.

6 California Air Resources Board, Monitoring and Laboratory Division, Vapor Return Path Hydrocarbon 

Concentrations in Vacuum Assist Vapor Recovery Systems Dispensing Gasoline to Onboard Refueling Vapor 

Recovery (ORVR) Equipped Vehicles, Project No. C-97-024, March 30, 1998.
15

vapors/liquids (an incidence rate of about 25/yr out of over 12 billion refueling events per year 

~1% of all service station fires).7 

Our assessment of the ARB test data leads us to conclude that in this testing the vacuum 

assist Stage II nozzles captured vapor and probably liquid droplets from the fill pipe. The ARB 

test procedure is not designed to address the issue being raised by the commenter. In our view, it 

is incorrect to conclude that this information indicates poor in-use performance by ORVR 

systems. The degree to which this occurs is attributable to the use of a vacuum assist nozzle in 

this testing, the test procedure used, and the other requirements of the test.8

Comment: Commenter (EPA-HQ-OAR-2010-1076-0061), a manufacturer of gasoline 

dispensing equipment known as the “No-Go Nozzle.” The comments submitted were provided to 

EPA after the deadline for submitting public comments. The commenter described their nozzle 

as being originally designed to solve the problem of drive-off gasoline theft at the pump by

locking the nozzle into the fill pipe of the vehicle and until the transaction is paid for. The 

commenter further stated that the nozzle has environmental and safety benefits. The commenter 

contends that since the nozzle locks to the fill pipe, that the nozzle improves vapor recovery on 

non-ORVR cars by 17 to 20 percent. The commenter also stated that the nozzle could generate a 

small, but measurable improvement on ORVR car vapor recovery, improve EVR vacuum assist 

efficacy to nearly 100 percent, function as a dripless nozzle and provide and provide all these 

benefits with minimal additional cost to GDFs.

Response: We do not disagree with the commenter that potentially more could be done 

to enhance Stage II vapor recovery with the use of certain nozzles beyond applicable industry

standards, the requirements in 40 CFR part 63 subpart CCCCCC and related state provisions, but 

an assessment of these issues is beyond the scope and purpose of this action. 

 III. Comments Regarding EPA’s Proposed Waiver of Stage II Vapor Recovery 

Required Under CAA Section 182(b)(3)

Comment: Commenters (EPA-HQ-OAR-2010-1076-0034, 0037, 0044, 0048, 0049, 

0050, 0052, 0057, 0058), supported EPA’s proposed general waiver the Stage II requirements to 

any areas subject to CAA section 182(b)(3). Another commenter (EPA-HQ-OAR-2010-1076-

0034, 0040) commended EPA for proposing to eliminate Stage II Vapor Recovery requirements 

in those areas where ORVR is in widespread use. They further stated that air quality will 

improve while reducing regulatory burdens. 

 

7 Summary and Analysis of Comments Regarding the Potential Safety Implications of Onboard Vapor Recovery 

Systems, Chapter 4, US EPA, Office of Mobile Sources, August 1988. Available in public docket A-87-11.

8 These conclusions in no way are intended to reflect negatively on the ARB Stage II certification results or test 

procedures or the value of any other elements of ARB’s Stage II EVR program. 
16

Response: EPA thanks the commenters for providing support for the waiver of CAA 

section 182(b)(3) Stage II vapor recovery requirements. After considering the public comments 

received, and conducting further analysis EPA is making the effective date of the waiver of Stage 

II vapor recovery requirements the effective date on the final rule. EPA also recognizes a cost 

savings in the decommissioning of Stage II vapor recovery systems and has updated the analysis.

Comment: Commenters (EPA-HQ-OAR-2010-1076-0046, 0049, 0051 and 0052) stated 

that in the interim period between the date that the rule is finalized and the proposed June 30, 

2013 widespread use of ORVR date, new fuel outlets in non-attainment areas should not be 

required to include Stage II systems. The commenters maintained that the cost of installing new 

Stage II systems is approximately $50,000. The commenters added that it is unreasonable to 

require new gas stations to incorporate an expensive technology into their equipment when the 

technology will be decommissioned in less than two years. The commenters stated that EPA 

should account for this fact and permit new stations in non-attainment areas to refrain from 

incorporating Stage II controls.

Commenter (EPA-HQ-OAR-2010-1076-0037) has requested guidance from EPA on 

how to make practical planning decisions for new or significantly modified gasoline dispensing 

facilities constructed within one to two years of a state’s Stage II phase-out date. The commenter 

indicated that installing a new Stage II system is costly and may not result in significant emission 

reductions in the short window of time between installation and phase-out. State program needs 

will vary, and therefore the commenter recommended that EPA work closely with states to 

develop practical strategies that address new and modified facilities within the context of each 

states’ Stage II program.

Response: EPA is aware that new construction undertaken prior to the waiver date may

incur capital costs for installing Stage II that may only be required for a short time. It is evident 

from the public comments and other materials that states and members of the regulated industry

are seeking an EPA decision on a widespread use date which a state could use as at least a partial 

basis for a decision on whether to curtail Stage II installations at newly constructed GDFs, and if 

desired, lead to an orderly phase-out of Stage II controls at existing GDFs. According to our 

updated analysis and as explained in the final rule, we have already met ORVR widespread use 

under one of the two proposed analytical approaches and in most cases the second will have 

passed before a state completes its SIP revision and legislates any needed revised regulations. 

As discussed in the preamble to the rule, EPA has decided to make the determination that ORVR 

widespread use will occur upon the effective date of the final rule. EPA shares the commenters’ 

concerns about an inefficient use of resources to meet a regulatory requirement which may have 

a short period of applicability and will work with the states to find a way forward on this matter. 

However, this is ultimately an issue for each state and the commenters must rely on the states to 

change their requirements. EPA cannot unilaterally change existing state SIPs or state 

regulations addressing Stage II requirements. As long as states keep the Stage II requirement in 

their state statutes or regulations, and as long as they choose to retain those in their SIPs, EPA 

does not have the authority to allow GDFs to not comply with those SIPs. 
17

Comment: Commenters (EPA-HQ-OAR-2010-1076-0048 and 0058) pointed to the 

following statement by EPA, which states, “Nonetheless, for over 15 years this technology

[Stage II] has provided substantial VOC emission reductions in ozone nonattainment areas, 

which needed those reductions to attain the ozone NAAQS as well as reductions in air toxic 

emissions such as benzene”. The commenters declared that this statement is inaccurate and 

urged EPA to correct the statement in the final rule. The commenters stated that they agree that 

Stage II technology provided VOC emissions reductions as well as reductions in air toxic 

emissions such as benzene, however the commenters did not believe all areas needed those 

reductions to attain the ozone NAAQS. The commenter stated that throughout their area, 

biogenic VOC emissions dominate the VOC source category and as a result, local reductions in 

man-made VOC emissions are not generally effective in reducing ozone. The commenters stated 

that reductions in nitrogen oxides (NOx) emissions are much more effective in reducing ozone 

concentrations in their area. Therefore, the commenters recommended that EPA acknowledge 

this fact for this rulemaking and recommended a correction to the overly broad statement that 

VOC emission reductions are needed to reduce ozone levels.

Response: EPA recognizes that natural source emissions can make a significant 

contribution to total volatile organic compound (VOC) and oxides of nitrogen (NOx) emissions. 

Estimating emissions of VOC and NOx from natural sources is an essential part of preparing an 

inventory of ozone precursors. In the past, the impacts of biogenic VOC were not considered 

when ozone control strategies to limit emissions of either NOx or VOC were developed. 

However, the importance of biogenic VOC emissions in an ozone inventory became apparent in 

some regions when the biogenic VOC emission estimates were compared to the anthropogenic 

VOC emission estimates.

9

 Biogenic VOC are emitted in large quantities from vegetation and 

may dominate over those from anthropogenic sources. Generally, biogenic emissions do not 

cause ozone problems; they are part of the natural background. It is only after anthropogenic 

emissions are added to the natural background that harmful levels of ozone result. However, 

biogenic emissions must be considered when examining anthropogenic emission control 

strategies. Furthermore, EPA acknowledges that there are a few NOx limited regions where 

VOC reductions are not as helpful in reducing ozone (without NOx reductions) as in others

which are VOC limited. The views of the commenters, while perhaps true in some areas in some 

time frames, does not diminish the basic perspective in the NPRM that Stage II vapor recovery 

has reduced VOC emissions that contribute to the formation of ozone and contribute to air toxics 

risk in the vast majority of situations. There is a long record of analyses and documents created 

and reviewed in two public processes supporting this view (see public dockets A-84-07 and A87-11) and it is further supported by the fact that Stage II controls were only required in the 

Serious, Severe, and Extreme ozone nonattainment areas (mostly metropolitan/urban areas) by

the 1990 Clean Air Act Amendments, not in rural areas. These urban/metropolitan areas are 

generally VOC limited. More importantly, however, this rule gives states/areas the way forward 

 

9

Chameides, W., R. Lindsay, J. Richardson, and C. Kiang. 1988. The Role of Biogenic Hydrocarbons in Urban 

Photochemical Smog: Atlanta as a Case Study. Science, vol. 241, pp. 1473-1475.
18

to remove Stage II that was previously required by the CAA. If a state/area believes they are 

NOx limited that may well provide greater incentive to remove Stage II as soon as possible and 

make an approval of a SIP revision more straightforward.

Comment: Commenter (EPA-HQ-OAR-2010-1076-0058) urged EPA to finalize the rule 

quickly and provide states with the ability to waive the Stage II requirements and thus free up 

resources that can be better expended on control measures that are more effective at reducing 

levels of ozone. 

Response: EPA has determined that ORVR is in widespread use upon the effective date 

of the final rule. Accordingly, to remove stage II requirements for their SIPs, states must submit 

SIP revisions and meet the requirements of section 110(l) that potential emission control losses 

from removing Stage II should not interfere with any applicable requirement concerning 

attainment and reasonable further progress, or any other requirement of the CAA.

Comment: Commenter (EPA-HQ-OAR-2010-1076-0035) concluded that the proposed 

federal action to waive Stage II vapor recovery requirements is an option that the commenter did

not believe is viable for their areas. The commenter believed that there may be opportunities for 

improvement of the Stage II vapor recovery hardware and possible reductions in operation and 

maintenance costs of the Stage II program to allow it to remain a cost-effective element of the 

commenter’s air pollution reduction program in their specific area. The commenter affirmed that 

despite great progress in achieving cleaner air, the area still needs additional reduction of air 

pollution and removal of Stage II controls would result in a significant increase in emissions of 

ozone precursors at a time when the area is searching for new control measures to reduce 

emissions. The commenter declared that the area cannot identify how to account for the lost 

emission reductions that would result from removal of their Stage II vapor recovery program. 

The commenter also emphasized that in spite of the growing share of ORVR-equipped vehicle 

refueling events, the commenter estimated that even in 2014, 17 percent of gasoline will be 

dispensed to non-ORVR vehicles.

Response: EPA’s final rule with 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. States may choose to continue to require or enhance Stage II controls in 

a particular area if they continue to achieve air quality benefits.

Comment: Commenter (EPA-HQ-OAR-2010-1076- 0037) stated that when correctly

installed, operated, and maintained, Stage II systems effectively control VOC emissions 

associated with dispensing gasoline to motor vehicles. In the future, as Stage II systems are 

removed, there is concern that emissions from gasoline storage tanks may increase as a result of 

unsaturated air being drawn into the storage tanks. The commenter indicated concern that EPA 

may not have fully evaluated the potential for such additional fugitive emissions. The commenter 

urged EPA to undertake such an analysis and report its findings to the states so that they may

assess future policy steps.

The commenter added EPA should continue to allow states to maintain Stage II and be 

clear on what is required to maintain the program. While states have this option, the commenter 
19

believed that EPA should also address issues related to quantifying excess emissions that may

occur when refueling ORVR-equipped vehicles at gasoline stations using vacuum-assist Stage II 

technology.

Response: As a part of the analysis supporting the NPRM, EPA assessed fugitive 

emissions related to refueling motor vehicles at GDFs. The conclusion of that analysis was that 

fugitive emissions (e.g., breathing and emptying losses) were about the same for the ORVR only 

or ORVR + Stage II scenario because of the requirements of 40 CFR part 63 subpart CCCCCC –

the gasoline dispensing facility NESHAP. However, in the analysis EPA noted that the 

incompatibility effect observed when refueling an ORVR car with a Stage II vacuum assist 

system could increase these emissions and suggested that this might be a reason for removing 

Stage II.10 EPA’s final rule with the ORVR widespread use determination and section 182(b)(3) 

waiver determination would not obligate states to remove any existing Stage II vapor recovery

requirements. States that choose to remove the program will need to ensure that removal of the 

program does not interfere with attainment and maintenance of the NAAQS per CAA section 

110(1). States may choose to continue to require or enhance Stage II controls in a particular area 

if they continue to achieve air quality benefits. 

Comment: Commenter (EPA-HQ-OAR-2010-1076-0041) stated that in order to ensure 

that gasoline underground storage tank systems continue to be maintained in a vapor-tight 

condition and prevent backsliding by allowing these underground storage tank systems to no 

longer be monitored when no more periodic Stage II testing is required, EPA must consider the 

following to ensure these systems remain vapor-tight as designed: Immediately upon 

decommissioning a stage II system and annually thereafter, EPA should incorporate the 

requirement to test gasoline underground storage tank stage I vapor recovery systems ability to 

contain the vapors by mandating the following test methods: 1) California Air Resources Board

(CARB) TP 201.3 (Determination of 2 Inch WC Static Pressure Performance of Vapor Recovery

Systems of Dispensing Facilities; Amended March 17, 1999); and, 2) CARB TP 201.1E (Leak 

Rate and Cracking Pressure of Pressure/Vacuum Vent Valves; October 8, 2003)

Response: EPA appreciates the commenter’s suggestion. In the ORVR Widespread Use

proposal, EPA did not propose to rescind any existing state or federal requirement for 

underground storage tank (UST) integrity testing such as those contained in 40 CFR part 63 

subpart CCCCCC. EPA encourages owners and operators of UST to follow federal, state and 

local requirements for their systems and to follow currently recognized industry codes and 

standards when dismantling Stage II vapor recovery systems. If the state chooses to waive the 

Stage II requirements and seeks to revise its SIP, the state may extend such requirements to 

lower throughput GDFs or the increase the frequency of the testing in their amended SIP to 

ensure that underground storage tanks continue to be maintained in a vapor tight condition.

 

10 See EPA Memorandum “Onboard Refueling Vapor Recovery Widespread Use Assessment”, June 2011. A copy 

of this memorandum is located in the docket for this action EPA-HQ-OAR-2010-1076.
20

Comment: Commenter (EPA-HQ-OAR-2010-1076-0045) stated that since EPA has 

identified the proposed rule as an example of examining rules to make sure they are still 

achieving the environmental benefits that were originally intended, the EPA should review other 

programs. The commenter suggested a review of vehicle “Inspection and Maintenance” 

programs. The commenter alleged that the effectiveness of the program has diminished greatly 

as an emission control technology. The commenter also asserted that imposing requirements for 

VOC reductions in NOx limited areas that have overwhelming biogenic VOC sources is a poor 

utilization of resources. The commenter concludes by maintaining that Early Action Compact 

programs should be an option for areas that are under consideration for nonattainment 

designations.

Response: EPA thanks the commenter for the suggestions, although the topic is outside 

the scope of this rulemaking. Consequently, the following response is for discussion purposes 

only, and does not constitute final action of any kind on EPA’s regarding the request made by the 

commenter. The 1990 Amendments to the Clean Air Act made inspection/maintenance (I/M) 

mandatory for several areas across the country, based upon various criteria, such as air quality

classification, population, and/or geographic location. On September 18, 1995, EPA finalized its 

I/M Flexibility Amendments (40 CFR Part 51), which are designed to give states more options to 

meet the enhanced I/M program requirements under the Clean Air Act Amendments of 1990. 

EPA's original enhanced I/M regulations included a single performance standard for enhanced 

I/M, which was based on EPA's model enhanced I/M program.11 EPA continues to recognize the 

vehicle I/M program as a substantial tool that assists in efforts to improve air quality by

identifying high-emitting vehicles in need of repair (through visual inspection, emissions testing, 

and/or the downloading of fault codes from a vehicle's OBD system) and causing them to be 

fixed as a prerequisite to vehicle registration within a given non-attainment area. At this time, 

the I/M program has not been identified in EPA’s Plan for Retrospective Review. 

While it is true that vehicle I/M programs do not achieve the same absolute level of 

emission reductions as they did during the 1990s, they do still produce significant reductions that 

can help achieve attainment and are required under the Clean Air Act Amendments of 1990. 

One of the reasons that I/M programs get fewer reductions nowadays is because manufacturers 

have responded to I/M requirements by building vehicles that stay cleaner longer, leaving fewer 

excess emissions to reduce. It should also be noted that at the same time emission reductions 

from I/M programs have come down, the cost of testing vehicles has also come down, thanks to 

the introduction of onboard diagnostic (OBD) systems on vehicles. Like I/M, OBD is a 

requirement of the Clean Air Act Amendments of 1990, which also required that all I/M 

programs include OBD testing once it became available. EPA has found that testing vehicles 

using the OBD system is generally quicker, more convenient, less costly, and more accurate than 

previous vehicle tests, including tailpipe tests like the idle, the Acceleration Simulation Mode 

(ASM), and the IM240 tests, which were used by various I/M programs throughout the 1990s 

 

11 (57 FR 52950, November 5, 1992)
21

and are still used to test non-OBD-equipped vehicles in some programs. The fact that the 

majority of vehicles in use nowadays are OBD-equipped means that there are many options for 

improving the cost effectiveness and convenience of existing and new I/M programs, including 

the use of remote testing and self-serve testing kiosks. Areas interested in optimizing the 

effectiveness of their local I/M programs should work with their EPA Regional offices to 

determine which program options make the most sense given local conditions. 

Comment: Commenter (EPA-HQ-OAR-2010-1076-0054) indicated that their state 

adopted Benzene Airborne Toxic Control Measures (ATCM), intended to reduce the public 

exposure to benzene, a known carcinogen. As a result of this control measure, virtually all 

gasoline dispensing facilities were required to install Stage I and Stage II vapor recovery

systems. The commenter further indicated that in March of 2000, the state adopted Enhanced 

Vapor Recovery (EVR). The requirements for the EVR upgrade included new Stage I and Stage 

II systems, ORVR-compatibility, and In-Station Diagnostics. The commenter affirmed that 

virtually all of the state is required to have Stage II as per the Benzene ATCM and will continue 

to the program without waiving Stage II requirements. 

The commenter realized that in 2013, non-ORVR vehicles may remain, but attrition over 

time will eliminate most of those vehicles. The commenter asserted that non-ORVR vehicles are 

generally not being used as frequently as ORVR vehicles, and, consequently, not receiving 

comparable gasoline throughput that the ORVR vehicles receive. The commenter indicated that 

benzene content has recently been recommended to not exceed an annual average of 0.62% by

volume by the end of 2011 by the state. The commenter asserted that the reduction in benzene 

content may be sufficient reason for the state to consider modification of the ATCM. The 

commenter speculated that if the ATCM is modified, the air district will revise its State 

Implementation Plan to reflect increased VOC emissions. The commenter also indicated that the 

district will also propose new regulations to offset the additional VOC emissions from the Phase 

II equipment removal. The commenter also realized that there are air districts within the state

that need all of the benzene and associated VOC reductions possible. However, the commenter’s 

District does not believe that the “one-size-fits-all” vapor recovery approach is appropriate for 

the entire state. The commenter believed that air districts in the more remote and sparsely

populated areas of the state do not receive a significant air quality benefit from Phase II vapor 

recovery. The commenter concluded that many low throughput gasoline dispensing facilities 

throughout the state have closed or have become convenience store-only operations because of 

the cost to install and maintain vapor recovery equipment.

Response: EPA appreciates the perspectives presented by the commenter. The Stage II 

requirement in this AQMD was generated by a state requirement not under section 182(b)(3). 

The issues raised by the commenter are important in their regulatory scheme for ozone and air

toxics control, but must be resolved within the state.

Comment: Commenter (EPA-HQ-OAR-2010-1076-0055) supports EPA’s effort to fulfill 

this CAA requirement. The commenter further states that establishment of a widespread-use date 

for ORVR will allow states and localities that currently have Stage II vapor recovery systems in 
22

place to decommission these systems if they so choose and will also allow areas designated 

nonattainment for ozone in the future to forego installation of Stage II recovery systems. The 

commenter recommends that the final rule should note that decommissioning of Stage II 

recovery systems is not mandatory. In the final rule, therefore, EPA must clearly and 

prominently state that its action establishes a date on which EPA believes ORVR is in 

widespread use, but whether Stage II will be decommissioned or retained in a specific region is a 

decision reserved for each state or locality.

The commenter cautioned EPA not to undermine the ability of states and localities that 

wish to retain Stage II recovery systems. The commenter indicated that for many ozone 

nonattainment areas, Stage II recovery systems have served as an effective means for reducing 

VOC evaporative emissions from gasoline refueling. The commenter added that many areas rely 

on Stage II to reduce toxic air contaminants, such as benzene, found in gasoline. The commenter 

asserted that reduced exposure to toxic air contaminants in gasoline at the point of refueling and 

the impact on the neighborhood immediately surrounding the refueling station are especially

important considerations since older non-ORVR-equipped vehicles tend to be located in lower 

income and environmental justice communities.

The commenter agreed that with widespread use of ORVR-equipped vehicles, the 

benefits of Stage II recovery systems diminish over time. However, the commenter also 

recognized that for numerous regions, Stage II has yielded additional environmental co-benefits 

and is more effective at achieving emissions reductions than the national average of 86 percent 

assumed by EPA in the proposed rule. The commenter concluded that Stage II recovery systems 

will likely be effective in reducing VOC and air toxics in some regions long after the June 30, 

2013 date proposed for the widespread-use determination. The commenter suggested that EPA 

should be mindful of this and include a discussion of the potential benefits of retaining properly 

operated and maintained Stage II recovery systems in the final rule.

Response: EPA agrees with the commenter that Stage II vapor recovery systems have 

been an effective means for reducing VOC emissions and controlling toxics exposure during 

refueling. However, with the introduction and use of ORVR-equipped passenger cars and trucks 

and their phase-in with fleet turnover, the incremental emission reduction benefits of Stage II 

vapor recovery systems over those achieved by ORVR diminish over time. Moreover, EPA’s 

analysis indicates that aggregate VOC emission reductions and air toxic reductions achieved 

from vehicles being equipped with ORVR alone will soon surpass those achieved from 

application of Stage II alone.12 As discussed above, EPA estimates, based on a substantial 

volume of data, that ORVR in-use control efficiency is at 98 percent. The activated carbon 

canister used in the vehicle evaporative/ORVR system captures the air toxic compounds (e.g., 

benzene, toluene, xylene) at least as effectively as it captures the butane and pentane compounds 

 

10

See EPA Memorandum, “Updated Data for ORVR Widespread Use Assessment.” A copy of this memorandum is 

located in the docket for this action EPA-HQ-OAR-2010-1076.
23

which make-up the majority of the mass in the emissions.13 Thus, EPA would similarly expect 

control efficiency for air toxics with ORVR efficiency of 98 percent during refueling events. 

From a nationwide perspective, EPA estimates ORVR reductions will surpass those from Stage 

II in May 2013. After that date, reductions from ORVR-equipped vehicles will exceed those 

from Stage II, and the margin by which ORVR’s reductions exceed Stage II’s will continue to 

increase as fleet turnover continues.14 With the onset of widespread use of ORVR, EPA 

concludes that basic ORVR technology and its greater efficiency and wider implementation in 

Stage II areas will provide sufficient overall VOC emission reductions, even without Stage II, to 

support our determination to waive the CAA section 182(b)(3) Stage II requirement that is 

directed to serious and above ozone nonattainment areas. Subsequently, of course, area-specific 

decisions of whether to revise SIPs to remove Stage II requirements will depend upon the 

specific needs of individual ozone nonattainment areas. Finally, whether additional controls of 

air toxics emissions from GDF operations are technologically feasible or necessary to protect 

public health are beyond the scope of this action, which addresses whether ORVR is factually in 

widespread use and whether it is reasonable to continue to impose, as a general and national 

minimum requirement for ozone control purposes, the section 182(b)(3) requirement for Serious 

and above ozone nonattainment areas. 

Comment: Commenter (EPA-HQ-OAR-2010-1076-0037) was concerned that EPA had 

not considered how an agency’s (state or local) request to remove Stage II will impact 

environmental justice communities. The commenter pointed out that gasoline dispensing 

operations cause significant emissions of volatile organic compounds (VOCs) and hazardous air 

pollutants (HAPs) and stated that this source category represents significant potential for public 

exposure to these pollutants. The commenter indicated that HAP exposures included, but are not 

limited to, benzene, ethyl benzene, toluene, and xylene. The commenter presented earlier EPA 

analysis that indicated that GDFs emit more than 25,000 tons of emissions nationally for these 

four pollutants. The commenter stated that many of these facilities are located in residential 

areas, including environmental justice communities, and that research indicated that individuals 

living in close proximity to GDFs are exposed to elevated levels of several HAPs and that the 

highest short-term exposures to benzene occur during refueling operations. The commenter 

 

13 See Society of Automotive Engineers Paper 860531, “Vehicle Evaporative and Exhaust Emissions as Influenced 

by Benzene Content of Gasoline”. 

14

 On the margin, into the future there could be continued limited reductions of VOCs and air toxics if Stage II is 

retained. The amount would vary by calendar year depending on ORVR vehicle penetration, Stage II efficiency, 

and Stage II exemption criteria. This would occur when a non-ORVR vehicle is refueled at a Stage II GDF. 

However, as demonstrated in Table 1 of the EPA Memorandum “Updated Data for ORVR Widespread Use 

Assessment,” overall emission reductions (this includes VOC and air toxics) from ORVR vehicles will greatly 

surpass those achieved from Stage II. For example, in 2015 ORVR would control about 86 percent of gasoline and 

control 84 percent of emissions while Stage II would control only 12 percent of gasoline and control about 10 

percent of emissions. By 2020, OVR would control 92 percent of emissions while Stage II reductions are less than 5 

percent of emissions. (The Stage II calculations assume 10% of gasoline throughput occurs at exempt GDFs, Stage 

II efficiency remains at 86%, and ignores the ORVR/Stage II compatibility impact). Including the ORVR/Stage II 

compatibility impact would likely lead to net VOC and air toxics emission increases before 2020 from the 

combination of ORVR equipped vehicles being refueled at vacuum-assist Stage II pumps. 
24

explained that facilities equipped with properly maintained Stage II systems substantially

mitigate public exposures to these pollutants.

The commenter reminded EPA that in 2009, it was recommended that EPA develop a 

technical assessment of toxic emissions and exposures at GDF operations. The commenter 

pointed out that in the preamble of the Proposed Widespread Use rule, EPA stated that the 

proposed rule will not have disproportionately high and adverse human health or environmental 

effects on minority or low-income populations. However, the commenter stated that EPA did not 

analyze the potential increased local exposure to air toxics, either generally or for environmental 

justice communities. The commenter requested that EPA provide any environmental justice 

analysis it conducted for this proposed rule. The commenter further urged EPA to ensure that an 

adequate analysis has been completed, and, if necessary, supplemented with an examination of 

the potential impacts of this proposed rule on environmental justice communities and on local air 

toxics emissions.

Commenter (EPA-HQ-OAR-2010-1076-0053) urged EPA to discuss other environmental 

benefits of Stage II systems such as reduced toxic air contaminants exposure to gasoline at the 

point of refueling and potential environmental justice impacts. 

Commenter (EPA-HQ-OAR-2010-1076-0035) concluded that the proposed federal action 

to waive Stage II vapor recovery requirements is an option that the commenter did not believe is 

viable for their areas. The commenter maintained that Stage II systems remaining in place will 

have an ongoing benefit and capture approximately 31 tons of VOCs per day in 2017 and 15 tons 

per day in 2020. The commenter stated that Stage II vapor recovery is required in their state as a 

control measure for benzene emissions and Stage II removal would adversely impact human 

health protection. The commenter concludes that their area has a critical need for reducing 

smog-forming emissions and will continue to use Stage II vapor recovery until such time in the 

future a re-examination of ORVR and Stage II programs. 

Commenter (EPA-HQ-OAR-2010-1076- 0037) stated that some areas may need 

additional VOC emission reductions to attain the ozone NAAQS or address environmental 

justice or toxic concerns and that EPA should continue to allow states to maintain Stage II and be 

clear on what is required to maintain the program. 

Response: The National Ambient Air Quality Standards (NAAQS) for Ozone final rule 

(73 FR 16436, March 27, 2008), based on a review of the air quality criteria, set standards to 

provide the requisite protection of public health and welfare. In that rulemaking, EPA 

determined that the levels set for criteria pollutants will not have disproportionately high and 

adverse human health or environmental effects on minority or low income populations because it 

increases the level of environmental protection for all affected populations without having any 

disproportionately high and adverse human health or environmental effects on any population 

including any minority or low-income population.

In addition, Section 112 of the Clean Air Act (the Act) governs the regulation of 

hazardous air pollutants (HAP) and establishes a two-phased regulatory approach. First, 

subsection 112(d) requires the EPA to promulgate technology-based emission standards for 
25

categories and subcategories of industries that are major or area sources. CAA Section 112(d) 

standards include new and existing source maximum achievable control technology (MACT) 

standards, health threshold standards, and generally available control technology or management 

practices (GACT) standards for area sources, in this case GDFs. The standards that apply to 

GDFs and the control of HAP are based on GACT pursuant to CAA section 112(d)(5).

Because Congress was concerned that these controls might not eliminate all emissions 

posing unacceptable health risks to exposed populations, subsection 112(f)(2) requires the EPA 

to determine for each category or subcategory of industries subject to MACT standards whether 

more stringent emission standards should be promulgated to control residual risks, and under 

subsection 112(f)(5) EPA has the discretion to do so for area sources subject to GACT standards. 

EPA’s GACT rule for GDFs was adopted on January 10, 2008, 73 FR 1916, and amended on 

January 24, 2011, 76 FR 4156. See 40 CFR part 63, subpart CCCCC, § 63.11110 et seq. In 

both of these rulemakings, EPA concluded that its actions regulating HAP emissions from GDFs 

did not have a disproportionate impact on minority populations and low-income populations. 

See 73 FR at 1933, and 76 FR at 4176. Determining whether additional HAP emission 

reductions at GDFs might be necessary and appropriate under CAA section 112 is beyond the 

scope of today’s action, which is focused on the narrower factual issue of whether ORVR 

systems are in widespread use in the motor vehicle fleet, and, consequently, whether it is 

appropriate to revise of waive the CAA section 182(b)(3) requirement for Stage II in Serious and 

above ozone nonattainment areas for purposes of ozone control. Any analysis of whether further 

HAP controls at GDFs are warranted is a subject for EPA’s future technology review for subpart 

CCCCC under section 112(d)(6).

Comment: Commenter (EPA-HQ-OAR-2010-1076-0059) is a manufacturer of a vapor 

processor which enhances the reduction of overall gasoline vapor emissions at the GDF. The 

commenter believed that EPA’s proposal to eliminate Stage II vapor recovery, if followed, will 

not result in the most cost effective means to reduce pollutants and will not save valuable fuel. 

The commenter claimed that emissions will be significantly increased above the levels possible 

with state-of-the-art technology; which has already been proven and is commercially robust. The 

commenter detailed the assertion by stating that vapor emissions at GDFs are comprised of 

refueling emissions and storage tank emissions. In turn, refueling emissions are generated at the 

nozzle/vehicle interface and at the outlet from the carbon canister used on the ORVR systems. 

The storage tank emissions are comprised of vent line emissions through the pressure/vacuum 

valve (p/v valve) and fugitive emissions through various point sources within the vapor 

containing hardware; where the fugitive emissions are a function of storage tank pressure. The 

commenter stated that the goal for the GDF is to minimize the total emissions (Volatile Organic 

Compounds and Hazardous Air Pollutants); which is the sum of the refueling and storage tank 

emissions. The commenter further explained that a practical tradeoff exists where the Air to 

Liquid ratio of the Stage II system could be increased to improve vapor collection at the 

nozzle/vehicle interface for a vacuum assist Stage II system; however, this increase in and to 

liquid ratio results in air ingestion into the storage tank with a penalty in fuel evaporation, 
26

increased tank pressurization with resulting vent and fugitive emissions. The commenter added 

that with ORVR alone, air ingestion into the storage tank is minimized, however many nonORVR vehicles will not capture refueling emissions. The commenter concluded that to 

adequately optimize a solution for the GDF, both sets of emissions must be considered 

simultaneously. The commenter referenced an Emissions Inventory summary provided by ARID 

Technologies to State of Illinois EPA. 

The commenter asserted that capturing and containing refueling vapor yields a favorable 

economic payback. The commenter referenced section 2.1.15 of “EPA’s Preliminary Plan for 

Periodic Retrospective Reviews”; page 22-23, where EPA says, “Available and affordable 

technology choices define the potential range of environmental solutions for many

environmental problems. Moreover, technology innovation can lead not only to better 

environmental outcomes, but better economic opportunities and outcomes, too. EPA efforts in 

the past 40 years have spurred technology developments responsible for profound improvements 

in environmental protection through preventing, reducing, and sequestering pollutants, and 

monitoring environmental conditions...... During retrospective reviews and new rulemakings, 

EPA intends to assess innovative technology opportunities and market drivers, and implement a 

strategy to enhance the degree to which EPA’s regulatory processes leverage market 

opportunities and encourage continued development of new sustainable technologies to achieve 

improved environmental results at lower costs.” 

On this basis, the commenter believed that the concept of ORVR widespread use is a 

flawed idea and presented an alternative that the commenter believed fulfills the intent of section 

2.1.15, referenced above. The commenter started out by stating the primary flaw in EPA 

widespread use criteria centers on the “breakeven” or “cross over point” where the emissions 

from ORVR alone are said to equal the emissions from Stage II only. The commenter asserts

that EPA uses improper math in Table 1 of the proposed rule, specifically column 5, where the 

commenter alleged that emissions from non-ORVR equipped vehicles are not accounted for 

where Stage II systems are not in use. On pages 3 and 4 of his comment letter, the commenter 

provided a detailed example of the emission reduction benefits and fuel savings associated with 

ORVR + Stage II and added technology to reduce Stage I storage tank emissions at a given GDF.

The commenter concluded that the approach allowing states to remove Stage II when ORVR is 

in widespread use is not optimal as it leads to fewer overall emission reductions than ORVR +

Stage II+ added technology to further reduce storage tank emissions. 

Furthermore, the commenter stated his belief and presented an illustration on page 5 of 

his comment letter of why he believes that the ORVR only case is not an optimum alternative. 

The commenter further added that the state-of-the-art approach provides an emissions decrease 

of about 83 percent in comparison to the EPA ORVR only proposal. These emissions, as seen in 

the supporting documentation represent a significant reduction in atmospheric emissions (in 

close proximity to the motorist), while at the same time saving a large volume of salable fuel and 

yielding a rapid payback on invested capital for the gasoline dispensing facility owner/operator. 
27

In addition to increased operating efficiency, the risk of groundwater contamination via below 

grade fugitive emissions is also significantly reduced. 

Response: EPA agrees that, as discussed in AP-42, in general GDF emissions are 

comprised of refueling emissions and storage tank emissions. Spillage during refueling is also 

important. As part of the analysis for the final rule, EPA presented an assessment of the 

emission rates from these three sources with ORVR and Stage II and found that the only

significant difference was in the emissions which occur from the vehicle fuel tank during the 

refueling event and the incompatibility emissions when ORVR vehicles are refueled by a 

vacuum assist type Stage II system.

15

 We do not disagree with the commenter that potentially

more could be done to address storage tank emissions beyond the requirements in 40 CFR part 

63 subpart CCCCCC and related state provisions, but an assessment of these issues is beyond the 

scope and purpose of this action. 

The commenter took the view that the “widespread use” approach used by EPA was 

flawed and instead that EPA should take a more holistic and integrated view of GDF emissions 

that could result in more control. The commenter’s approach seemed to envision a scheme 

which included ORVR + Stage II + additional storage tank controls. The commenter also 

asserted this could lead to additional fuel savings. 

EPA acknowledges that the commenter does not favor the widespread use approach, but 

EPA’s proposal was simply to propose a date for ORVR widespread use in response to the 

provisions of the CAA. It does not compel any state to take action to remove Stage II or prevent 

a state from enhancing its GDF emission control requirements. We do not agree with the 

commenter’s assertion that EPA’s analysis in the NPRM used improper math or that within 

EPA’s analysis emissions from non-ORVR vehicles are not accounted for where Stage II 

systems are not in use. EPA conducted an area or region wide efficiency analysis which 

incorporated all of the GDFs and refueling events in a given area per year including (a) ORVR 

vehicles at Stage II GDFs, (b) ORVR vehicles at non Stage II GDFs, (c) non-ORVR vehicles at 

Stage II GDFs, and (d) non-ORVR vehicles at non Stage II GDFs. The data used in EPA’s 

analysis can be used to calculate the gallons and emissions in any of these four segments. It did 

not address storage tank emissions since the EPA memorandum to the docket referenced above

concluded that these emissions would be about the same with ORVR alone or with Stage II 

alone.

Based on the criteria EPA used for widespread use assessment, the purpose of EPA’s 

analysis was to identify the “crossover” point where ORVR reductions would equal Stage II 

reductions so that if Stage II was removed there would be equivalent or greater reductions from 

 

15 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 and incompatibility effects related to ORVR and Stage II vacuum assist systems.
28

ORVR.16 This is not to suggest that there would not be additional reductions available from nonORVR vehicles at Stage II GDFs after the crossover date if Stage II was retained or that there 

would not be uncontrolled emissions (non-ORVR vehicles at non-Stage II GDFs), but these 

would be relatively small and decreasing each year.

For example, using the ORVR penetration rates and ORVR efficiency values from 

column 5 of Table 2 of the FRM preamble and 86 percent efficiency and 10 percent exemption 

rate for Stage II, equal control occurs in May of 2013 on a nationwide average basis. At that 

point about 77.4 percent of gasoline refueling emissions would be controlled by ORVR and if 

there were no ORVR the control would also be 77.4 percent for Stage II. However, there is an 

ORVR requirement and a Stage II requirement so at that point the remaining available reductions 

from non-ORVR vehicles going to Stage II stations would be about 16 percent. (1-

0.79)(.86)(0.90) before accounting for the Stage II vacuum assist system incompatibility effect.17 

This would decrease each year as the ORVR penetration increases.

As mentioned above, the commenter asserted that emissions from non-ORVR equipped 

vehicles are not accounted for where Stage II systems are not in use. This is simply not true. As 

can be seen in the crossover discussion above, within the NPRM analysis there are actually four 

segments. This includes a segment (d) (non-ORVR vehicles at non-Stage II GDFs) which is part 

of the total of all dispensed gasoline (a)+(b)+(c)+(d). Expanding the example above, assuming 

an even distribution of ORVR and non-ORVR equipped vehicles, of the 21 percent of gasoline 

going into non-ORVR vehicles if Stage II is still in place, 90 percent (non-exempt) of the 21 

percent would be controlled by Stage II at an 86 percent efficiency (segment (c)) while 10 

percent (exempt) of the 21 percent (about 2.1 percent) would be uncontrolled (non-ORVR cars 

going to non-Stage II stations (segment (d)).

EPA appreciates the information and analysis provided by the commenter with regard to 

ARID Technologies’ vapor processor technology including its merits in terms of emission 

reductions and fuel savings and ARID’s experience in field installations. However, further 

consideration of this technology for controlling GDF emissions and any incentives to do so are 

beyond the scope of this rule. The commenter provided no evidence that any potential action to 

remove Stage II would necessarily reduce the incentive of a state to address storage tank 

emissions beyond current EPA or local requirements.

 IV. Comments Regarding State Implementation Plan Revisions

 

16 Since in our earlier analysis we concluded that the difference was in vehicle tank displacement emissions during 

refueling, the analysis becomes a function of ORVR penetration, ORVR efficiency, Stage II efficiency, and Stage II 

exemptions.

17 The 0.79 value is the quotient of 0.774/0.98 and is the fraction of gallons dispensed to ORVR vehicles at that 

point in time.
29

Comment: Commenter (EPA-HQ-OAR-2010-1076-0042) requested that EPA provide 

further information on the overall expectations and steps needed for states to be granted a waiver 

and properly retire a Stage II program. The commenter stated that the guidance should include 

the following: 1) a listing of the timing and required elements for an approvable State 

Implementation Plan (SIP) revision to discontinue the Stage II program, including the types of 

information needed to demonstrate compliance with Section 110(l) requirements, 2) if a 

quantitative area-specific calculation of vehicle refueling emissions is needed, EPA should 

provide guidance on estimating excess emissions from ORVR incompatibility with vacuum 

assist systems, and 3) a definition of the options available to states to discontinue the requirement 

for new or remodeled gasoline dispensing facilities to install Stage II vapor recovery equipment 

in advance of either a state-specific or the national widespread use date. The commenter urged 

EPA to define the legal basis on how states may, if possible, stop requiring new installations and 

any enforcement activities for states with current SIP-approved Stage II programs. 

Another commenter (EPA-HQ-OAR-2010-1076-0037) provided their belief that 

additional guidance from EPA is needed on how to incorporate the proposed rule elements into a 

SIP. In many states, removing the Stage II program from the SIP requires addressing several 

separate sections of the Clean Air Act. States need clear and detailed guidance from EPA on how 

to develop appropriate and complete SIP revisions. Whether or not Stage II can be removed will 

depend on EPA’s review and approval of such SIP revisions. The commenter urged EPA to 

develop this guidance as soon as possible and preferably well in advance of finalizing the 

Proposed Widespread Use Rule. The NESCAUM states would welcome working with EPA on 

the issues identified below where the commenter believed specific guidance is needed.

The commenter stated that EPA must provide clear guidance as to what is needed in 

order to ensure that the integrity of the SIP is maintained when Stage II equipment is removed. 

The commenter declared that at a minimum, EPA must provide guidance on how to address 

requirements, including what analysis must be done and key issues to address concerning CAA

sections 110(l), 184(b)(2), and 193. Additionally, the commenter indicated that states need clear 

and consistent guidance as to the appropriate base year that should be used for the equivalency

and/or interference with maintenance demonstrations. The commenter recommended that EPA 

require that states use the first phase-out year of the Stage II program as their baseline year. The 

commenter pointed out that states are confused about assessing emission reductions from an 

existing Stage II program. The commenter expressed their understanding that emissions 

resulting from the incompatibility between ORVR vehicles and vacuum-assist Stage II systems 

as well as reduced system efficiency for the Stage II program can be used in states’ SIP 

demonstrations. The commenter believed that if a state can demonstrate that ORVR obtains 

equal or more VOC reductions than Stage II, no additional measures should be required. The 

commenter requested that EPA work together with states to identify a complete list of issues 

related to SIP revision development with the goal of providing the states with clear and 

consistent guidance that will ensure consistent application among those states conducting these 

analyses.
30

Response: When a state wishes to remove the requirements for Stage II, the CAA 

requires EPA to ensure that such removal of the Stage II requirements would not interfere with 

other applicable CAA requirements under section 110(l), which precludes the Administrator 

from approving a SIP revision if it would interfere with applicable CAA requirements (including 

attainment and maintenance of the ozone NAAQS). In their SIP analysis, states may elect to 

conduct area-specific analyses, specifying parameters that are reflective of the types and ranges 

of equipment and operating patterns in use in the relevant area. Subsequent to the effective 

waiver date of the section 182(b)(3) Stage II requirement, areas currently implementing SIPapproved Stage II programs, as a result of obligations under the 1-hour or 1997 8-hour ozone 

NAAQS, would be required to continue implementing these programs until an EPA SIP revision 

approves removal of the requirement from the state’s ozone implementation plan. 

Of course, even after EPA takes final action to find widespread use of ORVR has 

occurred and issues a waiver of the section 182(b)(3) requirement, states remain free under CAA 

section 116 to choose to implement Stage II programs in any area, and would not be forced to 

remove existing Stage II provisions from a SIP. Some states may find that by removing Stage II 

requirements they are reducing the overall level of reductions for which they have previously 

obtained credit. Such states would need to show that foregoing any additional VOC emissions 

reductions resulting from Stage II would not interfere with attaining and maintaining the ozone 

NAAQS in violation of section 110(l). In such circumstances it is possible that additional 

emissions reductions may be needed to offset the removal of Stage II. It should also be noted 

that removing Stage II may affect mobile source emissions budgets, so we urge states to consult 

with the state and local transportation agencies. States could choose to keep Stage II for an 

additional period of time to allow further ORVR penetration in the motor vehicle fleet, or instead

obtain equivalent emissions reductions from other sources.

EPA recognizes the need for providing guidance on SIP revisions for removing Stage II 

requirements and will release such guidance a short time after the final rule is published. Central 

to this guidance will be discussion on what should be included in a revised SIP as well as 

indications of what data is needed and suggestions on how the analysis could be conducted. 

EPA is aware that new construction that is prior to the waiver date may have capital costs for 

installing Stage II that may only be required for a short time. EPA shares the commenters’ 

concerns about an inefficient use of resources to meet a regulatory requirement which may have 

a short period of applicability and will work with the states to find a way forward on this matter. 

However, this is ultimately an issue for each state. EPA cannot unilaterally change existing state 

SIPs or state regulations addressing Stage II requirements. 

Comment: Commenter (EPA-HQ-OAR-2010-1076-0037) urged EPA to provide states 

with clear guidance as to whether MOVES is required to conduct Stage II removal analyses. If 

so, the commenter specified that EPA must issue guidance on how states should run MOVES for 

analyzing removal of the Stage II program. The commenter denoted that States have been 

compiling a list of issues related to using MOVES for such an analysis. A preliminary list of 

issues include: (1) determining appropriate Reid Vapor Pressure (RVP) factors; (2) accounting 
31

for excess emissions due to ORVR incompatibility; and (3) running the model for one 

representative county rather than statewide.

Response: While it may be preferable, MOVES 2010(a) is not the only means by which 

states could support a revised SIP. Mobile model runs or MOVES 2010 or some other approach 

may be sufficient if the submitter can demonstrate the accuracy of the outcomes. EPA's Office 

of Transportation and Air Quality (OTAQ) has developed the MOtor Vehicle Emission 

Simulator (MOVES). MOVES2010 has become EPA’s approved motor vehicle emission factor 

model for estimating volatile organic compounds (VOCs), nitrogen oxides (NOx), carbon 

monoxide (CO), direct particulate matter (PM10 and PM2.5) and other pollutants and precursors 

from cars, trucks, motorcycles, and buses by state and local agencies outside of California. This 

new emission modeling system estimates emissions for mobile sources covering a broad range of 

pollutants and allows multiple scale analysis. The MOVES model currently estimates emissions 

from cars, trucks & motorcycles. The modeling system can be downloaded at the following 

website: http://www.epa.gov/otaq/models/moves/index.htm.

MOVES2010 can be used to estimate air pollution emissions from cars, trucks, 

motorcycles, and buses. It is approved for use in official state implementation plan (SIP) 

submissions to EPA and for transportation conformity analyses outside of California. It can also 

be used to estimate the benefits from a range of mobile source control strategies, for more 

general analyses of national or local emissions trends, and for policy evaluation. MOVES2010 is 

EPA’s best available tool for quantifying criteria pollutant and precursor emissions, as well as 

for other emissions analyses of the transportation sector. 

Prior to this official release of MOVES2010, the MOBILE6.2 motor vehicle emission 

factor model was the only model approved for performing SIP and transportation conformity

analyses. EPA intends to address some of the commenter’s specific questions related to issues 

such as RVP and county versus statewide MOVES runs in separate guidance.

Comment: Commenter (EPA-HQ-OAR-2010-1076-0037) is concerned with the 98

percent control efficiency rating for ORVR. The commenter urged EPA to conduct a robust 

analysis of the ORVR efficiency rating and incorporate the capability in MOVES for states and 

EPA to apply an ORVR refueling adjustment factor, similar to that for the Stage II vapor 

recovery program, in order to allow a realistic analysis, or alternatively, if warranted, EPA 

should adjust the 98 percent control efficiency in the model to account for deterioration with age 

or realistic effectiveness.

Response: Concerning the 98 percent ORVR overall efficiency used in EPA’s analysis, 

EPA referenced the manufacturer in-use verification program where there were over nearly 

1,200 laboratory tests of in-use ORVR equipped vehicles which lead to an in-use efficiency of 

about 98 percent. For the final rule, EPA has updated 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 
32

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 

Comment: Commenter (EPA-HQ-OAR-2010-1076-0048) suggested EPA provide States 

with guidance on how to prepare a non-interference demonstration that meets the intent of 

Section 110(l) of the Clean Air Act in a straightforward and simplified way that facilitates 

expeditious approval of the SIP revision by EPA. The commenter contended that this is 

particularly important because EPA is claiming a long-term cost savings associated with this rule 

to be approximately $87 million per year. The commenter asserted that these cost savings will 

not be realized if EPA does not work with the states to develop, submit, and approve these SIP 

revisions in an efficient and timely manner. The commenter declared that EPA is misleading the 

public by implying that these savings result directly from EPA’s action on this rulemaking and 

that EPA should make it clear in the record that the savings will occur only if the states make 

changes to their own rules and only after EPA approves revisions to their SIP. 

The commenter also established that EPA should be clear in the final rule that the process 

for physically decommissioning the Stage II equipment should be left to the individual states and 

regions and not dictated in a rule or guidance document by EPA.

Response: EPA recognizes the need for providing guidance on SIP revisions for 

removing Stage II requirements and will release such guidance subsequent to this final rule. 

Central to this guidance will be discussion on what should be included in a revised SIP as well as 

indications of what data is needed and suggestions on how the analysis could be conducted. 

While we agree that approved revised state SIPs are needed for Stage II decommissioning to 

begin, we note absent the widespread use determination the cost savings would not be possible. 

We acknowledge the commenter’s request that EPA not specify by regulation or guidance any

specific decommissioning criteria or requirements. We do not intend to do so, but we encourage 

the states to review and strongly consider guidelines published by the Petroleum Equipment 

Institute and to consider criteria already put in place by Maine, Vermont, New Hampshire and 

New York. Central to these considerations is a safe process which ensures system tightness and 

minimizes unnecessary fugitive emissions from dispenser or vapor pipe leaks.

Comment: Commenter (EPA-HQ-OAR-2010-1076-0059), a manufacturer of a vapor 

processor which enhances the control of gasoline vapor emissions at GDFs stated their interest in 

the section in the Federal Register which addresses SIP Revision; this includes the CAA section 

110 (l) requirements as well as the section 116 where States remain free to choose to implement 

Stage II programs in any area. The commenter supposed that States choosing to continue using 

Stage II, in conjunction with a vapor processor will qualify for special state-of-the-art, or MACT 

status. The commenter supposed that this qualification could trigger financial incentives to the 

GDF owner/operator such as reduced taxes on motor vehicle fuel and/or a subsidy to help cover 

the capital and installation expenses of installing vapor processor hardware. Moreover, the 

 

18

 See 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.
33

commenter suggested that the State may also qualify for various financial incentives while at the 

same time earning emissions reductions in their SIP. The commenter believed it would be 

reasonable to reward the proactive States and GDF owners/operators who employ a state-of-theart approach to reduce emissions above and beyond mandated levels. The commenter concluded 

they would earn an attractive return by paying back their capital investment with saved fuel, but 

on the other hand, an extra incentive can help ensure that Stage II systems are not incorrectly 

removed by the majority of the GDF owners/operators. The commenter pointed out that as an 

added benefit to regulatory agencies, the efforts expended by the GDF owners/operator will be 

much stronger and more focused if their “good housekeeping” practices earn them the 

opportunity to realize an economic benefit – in other words; why ensure leak integrity of your 

vapor piping system, if you know the losses are constantly occurring through the p/v valve? 

However, if the GDF owner/operator installs and maintains Stage II technology along with a 

vapor processor; they have a strong incentive to make sure all systems on the forecourt are 

properly operating and that the associated piping system remains leak free. The commenter

raised this notion in correspondence to Mr. Thomas A Driscoll, USEPA, 28 September 2004, this 

letter was attached to the comments submitted to the NPRM. 

The commenter also lays out ideas regarding retaining Stage II and potentially enhancing 

its performance through additional vapor processing technologies. The commenter provided data 

demonstrating the performance of its systems in reducing overall vapor emissions at GDFs.

Response: EPA acknowledges that these concepts may have merit and states at their 

discretion may want to consider them as part of any overall hydrocarbon emission reduction 

strategy. However, any further analysis or consideration here is outside of the scope of this 

rulemaking. 

The commenter neither identified an existing program nor indicated how States choosing 

to continue using Stage II, in conjunction with a vapor processor would qualify for special stateof-the-art, or MACT status. The commenter also stated that states may qualify for financial 

incentives, yet did not identify any incentives that may be currently available to states in this 

regard. EPA did not propose a financial incentive program to states continuing to operate Stage 

II systems, nor to states that enhance their Stage II systems. Instead, EPA proposed a waiver of 

Stage II requirements upon which the States may choose to decommission the Stage II systems. 

Nonetheless, as has been discussed before States may elect to retain Stage II and the commenter 

made no technical connection that removing Stage II would decrease the incentive to add other 

GDF vapor control requirements if a state elected to do so. If the commenter is simply

advocating for a revision to tax policy in order to create new incentives for states to control 

emissions beyond levels required by the CAA, that subject is outside the scope of this 

rulemaking, and we currently take no position on the merits of this suggestion.

Comment: Commenter (EPA-HQ-OAR-2010-1076-0037) indicated that several states 

have or are being considered for EPA “Clean Data Determinations.” These states have questions 

regarding whether or not these determinations will affect their requirements for analysis and 

removal of the Stage II program. The NESCAUM states urged EPA to clarify in the final rule 
34

how Clean Data Determinations affect the type and level of analysis required to remove a Stage 

II program.

Response: Under EPA’s Clean Data Policy19 and the regulation that embodies it, 40 CFR 

51.918 (1997 8-hour ozone), EPA may issue a determination of attainment (formally known as a 

Clean Data Determination (CDD)) after notice and comment rulemaking determining that a 

specific area is attaining the relevant standard.

If a state in the OTR wishes to shift requirements of Stage II to comparable measures or 

if a non-OTR state wishes remove the requirements for Stage II, the CAA requires EPA to 

ensure that such de-activation of the Stage II requirements would not interfere with other 

applicable CAA requirements under section 110(l), which precludes the Administrator from 

approving a SIP revision if it would interfere with applicable CAA requirements (including 

attainment and maintenance of the ozone NAAQS). 

When de-activating Stage II control programs, states should assess the VOC emissions 

impact in the affected area during the phase-out period. The final rule and the subsequent

guidance provides methods and calculations for evaluating the emissions impact of phasing-out 

Stage II programs. In their SIP analysis, states may elect to conduct area-specific analyses, 

specifying parameters that are reflective of the types and ranges of equipment and operating 

patterns in use in the relevant area. 

A planned Stage II deactivation that is shown not to result in an increase in area-wide 

VOC emissions should be consistent with the conditions of CAA section 110(l). A planned 

Stage II phase-out that is shown to result in an area-wide emissions increase can also be 

consistent with the conditions of CAA section 110(l) if the state offsets the increase in emissions 

by incorporating additional emissions controls into the SIP. In general, in an area that is 

attaining the standard, it should be easier to demonstrate that phasing out State II controls is 

consistent with the provisions of section 110(l).

 

19 EPA’s Clean Data Policy titled “Reasonable Further Progress, Attainment Demonstration, and Related 

Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard, John 

S. Seitz, Director, Office of Air Quality Planning and Standards (MD-10), May 10, 1995.
35

 V. Comments Regarding Effects to Stage II Programs in Ozone Nonattainment Areas of

the Ozone Transport Region

Comment: Commenters (EPA-HQ-OAR-2010-1076-0032, 0034, 0046, 0049, 0050 and 

0051) indicated that CAA section 184(b)(2) is a separate Stage II related requirement that all 

areas in the Ozone Transport Region (OTR) must implement either Stage II or measures that 

achieve “comparable” emissions reductions. This independent requirement is not affected by 

any widespread use determination or waiver of the CAA section 182(b)(3) Stage II requirements. 

Thus, unless areas in the OTR implement measures that achieve “comparable” emissions 

reductions, they appear to still remain obligated to require Stage II vapor recovery systems. The 

commenters further believe that under the Agency’s current interpretation of section 184(b)(2), 

refueling stations in the OTR may be unable to take advantage of the section 182(b)(3) Stage II 

waiver and the costs savings indicated. The commenters urged EPA to revise it interpretation of 

section 184(b)(2) to permit ORVR to be recognized as an emission reduction measure considered 

“comparable” to Stage II. Commenters (EPA-HQ-OAR-2010-1076-0032, 0034) also requested 

that EPA delay the deadline for comments on the proposed rule, specifically to comment on 

Section 184(b)(2), to at least one month after the Agency revises its interpretation of the 

aforementioned section.

Commenter (EPA-HQ-OAR-2010-1076-0039) endorsed and supported the comments 

offered by another commenter (EPA-HQ-OAR-2010-0037) and offered further comment on 

issues related to the following: 1) EPA guidance regarding the implementation of the rule 

through the OTR; 2) coordination between OTC and EPA regarding SIP incorporation of EPA’s 

proposal; and 3) maintenance of Stage II systems. The commenter urged EPA to release the 

implementation guidance for the OTR prior to promulgation of the Widespread Use Rule and to 

clarify in the guidance what comparable measures may be counted and how to conduct the 

comparability analysis. The commenter also requested that EPA provide clear and consistent 

guidance as to the appropriate base year that should be used for the demonstrations of 

comparability. The commenter also indicated that EPA should provide an opportunity to 

comment on EPA’s draft OTR guidance before it is finalized. The commenter recommended 

that if a state can demonstrate that ORVR obtains VOC reductions equal to or more than Stage II 

systems, then no additional measures should be required. The commenter also recommended 

that as part of guidance, EPA should require that states use the first phase-out year of the Stage II 

program as the baseline year. On the subject of maintaining Stage II systems, the commenter 

recommended for states that need additional VOC emission reductions to reach attainment of the 

NAAQS and to address environmental justice or toxic concerns, that EPA continue to allow 

states to maintain the option to keep Stage II and be clear on what is required to maintain a Stage 

II program moving forward. The commenter recognized that states have this option, but the 

commenter believed that EPA should address issues related to quantifying excess emissions that 

may occur when refueling ORVR equipped vehicles at gasoline stations using vacuum-assist 

Stage II technology, as well as potential excess emissions from removal of Stage II systems.
36

Commenter (EPA-HQ-OAR-2010-1076- 0052) stated that in EPA’s proposal to eliminate 

Stage II, the EPA also determined that the independent requirements of the OTR are “not 

affected by any widespread use determination or waiver of section 182(b)(3) Stage II 

requirement.” The commenter contended that OTR states are granted no relief from Stage II 

requirement under this proposal and remain subject to redundant regulatory requirements. The 

commenter asserted that this results in confusion in the marketplace and presents an unfair 

advantage for stations in nearby states without these requirements.

Commenter (EPA-HQ-OAR-2010-1076-0037) indicated that a number of states are 

troubled by the lack of information provided to OTR states regarding OTR-specific CAA 

requirements for Stage II. The commenter acknowledges that section 184(b)(2) of the Act 

requires that OTR states adopt (or maintain) Stage II or achieve comparable emission reductions. 

The commenter recalled that the preamble of the proposed Widespread Use Rule indicated that 

states in the OTR must have adopted measures achieving emissions reductions that are at least 

equivalent to those achievable by Stage II and “incremental” to ORVR before EPA would 

approve a SIP revision removing Stage II controls. The commenter represented that states need 

clarification on what an “incremental” analysis means and what it includes. The commenter 

believed that OTR states should be allowed to use the year that they phase out Stage II as their 

baseline year for their comparable measures demonstrations. The commenter interposed that if 

an OTR state can demonstrate that ORVR obtains equal or more VOC reductions than Stage II, 

no additional measures should be required. The commenter urged EPA to work with the Ozone 

Transport Commission to develop this guidance.

Response: This rulemaking is taking final action only under CAA section 202(a)(6) to 

find that ORVR is in widespread use and to waive only the CAA section 182(b)(3) Stage II 

requirement for serious and worse ozone nonattainment areas. This rulemaking is not taking 

final action under CAA section 184(b)(2) regarding the separate but related requirement that 

OTR states implement either Stage II or other measures that obtain comparable emissions 

reductions, and our proposed rule proposed no such action. States in the OTR, therefore, even 

after today’s rule, remain subject to a separate requirement under section 184(b)(2) of the CAA 

to implement measures that achieve comparable emissions reductions to those achievable by

Stage II. The CAA does not provide the Administrator with authority to waive this independent 

requirement. The section 202(a)(6) waiver authority only applies to the section 182(b)(3) 

requirement. 

In the proposed rule, EPA did not propose any action related to section 184(b)(2) and did 

not solicit comments on CAA section 184(b)(2). As a result, EPA does not believe it is 

necessary or appropriate to offer an extension to the comment period of the proposed rule

regarding this issue. However, as discussed below EPA will issue new guidance on fulfilling the 

comparable measures requirement and conducted outreach to the states and other parties in the 

preparation of this guidance. The intent of this effort is to update the degree of emissions 

reductions that would be expected to be achieved for a control measure to be considered 
37

“comparable” to Stage II, in light of Stage II’s declining ability to obtain reductions as ORVR 

penetration increases in the motor vehicle fleet.

Since ORVR is independently required under section 202(a)(6), simply treating it as a 

comparable measure that an OTR SIP must additionally contain would arguably render the 

section 184(b)(2) requirement a nullity, which would therefore not be a permissible statutory

interpretation. However, what has changed is the expected level of emissions reductions that 

Stage II programs can obtain, in light of the fact that in the OTR areas, Stage II systems (or other 

comparable measures) were fully implemented more than a decade ago and ORVR is now in 

force with ORVR-equipped vehicles phasing in at the rate of 3-4 percent of the fleet each 

calendar year. Thus, the factual circumstances influencing EPA’s estimate of what level of 

emissions reductions are “comparable” to those achieved by Stage II, incremental to ORVR, are

truly different today as compared to the mid-1990s. In fact, comparable measures could in some 

cases mean no additional control beyond ORVR is required if Stage II is achieving no additional 

emission reduction benefit in an area or only a declining de minimis benefit. It is worth noting 

that the CAA calls for “comparable emission reductions,” not necessarily Stage II- equivalent 

reductions, which preserves some discretion when evaluating the adequacy of an OTR state’s 

SIP revision submission under section 184(b)(2).

This issue will be addressed in EPA’s anticipated update to the forthcoming guidance 

titled (tentatively), "Guidance on Removing Stage II Gasoline Vapor Control Programs from 

State Implementation Plans and Assessing Comparable Measures.” This future guidance will be 

issued after the publication of this rulemaking, but it is not part of this final rulemaking and does 

not itself constitute final agency action that has binding and enforceable effect. Final action 

regarding the section 184(b)(2) issues will be taken only in response to any SIP revision 

submissions from OTR states. Only at that point will EPA’s implementation of section 

184(b)(2) be subject to judicial review under CAA section 307(b).

Comment: Commenter (EPA-HQ-OAR-2010-1076-0038) stated that EPA must 

immediately require the State of Pennsylvania to submit the Stage II or comparable measures SIP 

revision required by Section 184(b)(2) of the Clean Air Act. The commenter asserted that 

Pennsylvania has not completed the required 184(b)(2) Stage II comparability analysis SIP 

submission to EPA. The commenter further asserted that EPA has not issued to Pennsylvania a 

finding of failure to submit the analysis. The commenter alleged that the state has failed the 

Stage II comparability requirement for the 55 of the state’s 67 counties where a section 

182(b)(3)-based Stage II program is not in operation. The commenter reiterated the proposed 

rule where it stated that EPA intends to provide additional guidance for OTR states on how they 

can conduct updated comparability analyses. The commenter assumed that “updated” obviously 

means that there is an existing comparability analysis and that the state is 15 and one half years 

overdue. The commenter stated that EPA must rectify this oversight immediately by making a 

finding of failure to submit. 

Response: We appreciate the commenter’s concern, and have shared the commenter’s 

concerns with EPA Region 3, Office of Air Program Planning, in order to address the situation 
38

appropriately. The commenter’s statements regarding Pennsylvania’s status and regarding its 

CAA section 184(b)(2) obligations, is beyond the scope of today’s final rule, and we have 

referred the commenter’s contentions to EPA Region 3.

Comment: Commenter (EPA-HQ-OAR-2010-1076-0040) commended EPA for 

proposing this rule that eliminates Stage II vapor recovery requirement in those areas where the 

use of ORVR systems is widespread. The commenter also believed this rule will improve air 

quality while also reducing regulatory burdens. However, the commenter indicated that the 

proposed rule did not adequately address the waiver of Stage II requirements for states located 

within the OTR. The commenter also stated that EPA’s proposed rule relied on what the 

commenter believed to be an impractical framework for EPA review and approval of revised 

SIPs prior to removal of Stage II requirements. 

The commenter indicated that their state cannot benefit from the proposed rule without 

also considering provisions of section 184(b)(2). The commenter stated that EPA’s proposed 

rule does not allow states within the OTR, subject to 184(b)(2), to obtain relief upon a 

demonstration that ORVR systems are in widespread use. The commenter recommended that 

EPA revise the proposed rule to clarify that the Stage II waiver provisions are applicable in the 

OTR to the same extent as elsewhere. 

The commenter recognized that the proposed rule identified an emission control 

efficiency of 86 percent for Stage II systems. The commenter believed this number to be inflated 

because it assumes annual inspections of all Stage II equipment. The commenter stated that that 

assumption is impracticable given the vast number of GDFs in each state and the limited state 

resources to perform annual inspections. The commenter added that the 86 percent control 

efficiency does not account for fugitive emissions related to Stage II and ORVR incompatibility, 

even though EPA acknowledged the incompatibility that exists between some vapor recovery

systems. The commenter further added that EPA based the efficiency determination on a report 

that is more than 20 years old, which over-estimates the current effectiveness of these systems. 

The commenter recommended that EPA reexamine in-use Stage II installations to determine the 

actual effectiveness of the program utilizing present day studies and date and adjust the assumed 

control efficiency downward. The commenter suggested the control efficiency should be 62 

percent due in part to poor maintenance of gasoline dispensing equipment by facilities, less 

frequent inspections, and existing incompatibilities between ORVR and Stage II. The 

commenter avers that when factoring incompatibility and the over-estimation of Stage II 

efficiency, equivalency and widespread use would occur prior to 2013 and has already occurred 

in the commenter’s state.

The commenter indicated that EPA’s framework for review and approval of a revised SIP 

prior to removal of Stage II requirements appears to be impractical and may compromise air 

quality. The commenter labeled EPA’s process cumbersome and results in a delay in EPA 

approving of SIP revisions. The commenter contended that such delay could increase the 

potential for excess emissions. The commenter suggested that since the proposed rule included 

the analytical approach for widespread use determinations, where states use this analytical 
39

approach to establish widespread use they should be authorized to discontinue use of Stage II 

requirements without any need for review or approval by EPA.

Response: EPA recognizes that some states in the OTR are implementing Stage II 

controls to meet both section 182(b)(3) (that requires Stage II in Serious and above ozone 

nonattainment areas) and section 184(b)(2) (that requires all OTR attainment and nonattainment 

areas to implement measures that achieve emissions reduction comparable to those achieved by 

Stage II); others are implementing Stage II controls in order to meet section 184(b)(2) alone. As 

previously explained, today’s final rule takes no action with respect to CAA section 184(b)(2). 

Since ORVR is independently required under section 202(a)(6), simply treating it as a 

comparable measure that an OTR SIP must additionally contain would arguably render the 

184(b)(2) requirement superfluous, which would not be a permissible statutory interpretation. 

However, what has changed is the expected level of emissions reductions that Stage II programs 

can obtain, in light of the fact that in the OTR areas, Stage II systems (or other comparable 

measures) were fully implemented more than a decade ago and ORVR is now in force with 

ORVR-equipped vehicles phasing in at the rate of 3-4 percent of the fleet each calendar year. 

Thus, the factual circumstances influencing EPA’s estimate of what level of emissions 

reductions Stage II now obtains, and what reductions are therefore “comparable” to those 

achieved by Stage II, incremental to ORVR, are different today compared to the mid-1990s. 

Therefore, in a separate guidance document, EPA is updating its estimate of what emissions 

reductions are needed to be comparable to those obtained by Stage II. This issue will be further 

addressed in EPA’s anticipated updated guidance titled (tentative), "Guidance on Removing 

Stage II Gasoline Vapor Control Programs from State Implementation Plans and Assessing 

Comparable Measures.” This guidance will be issued some time after the publication of this 

rulemaking, but is not part of this final rulemaking.

We share the commenter’s concerns regarding Stage II efficiency. Many Stage II 

installations have been in place for twenty years or more, Much of the above ground hardware is 

now approaching the second replacement cycle EPA projected in its initial Stage II technical 

guidance document.20 However, we believe this is an issue best addressed in the SIP revision 

process because that is where the inspection, testing, and maintenance provisions for the GDF 

owners/operators and the inspection and enforcement requirements for the states were identified. 

States are encouraged to review and as needed, update the Stage II efficiency value used in this 

assessment considering their inspection and enforcement resource commitments. Through this 

revision the state can adjust its Stage II efficiency if necessary and address ORVR/Stage II 

incompatibility. Some Stage II in-use efficiency data is provided in the references cited below.21

 

20

 See Table B-15 in the EPA report “Draft Regulatory Impact Analysis: Proposed Refueling Emission Regulations 

for Gasoline-Fueled Motor Vehicles – Volume 1”, EPA-450/3-87-001a, July 1987.

21 “Stage II Vapor Recovery Systems Issues Paper,” U.S. EPA, Office of Air Quality Planning and Standards, 

August, 2004, “Analysis of Future Option’s for Connecticut’s Gasoline Dispensing Facility Vapor Control 

Program,” Connecticut Department of Energy and Environmental Protection, December 2011, “Draft Vapor 

Recovery Test Report,” CARB and CAPCOA, April, 1999, “Performance of Balance Vapor Recovery Systems at 

Gasoline Dispensing Facilities,” San Diego Air Pollution Control District, May 18, 2000.
40

EPA understands that making the Stage II waiver automatic, without the need to revise 

SIPs, would shorten the time before a state could act to allow GDF owners/operators to 

decommission their Stage II installations. However, it is not a possible result under the 

cooperative federalism approach of the CAA, under which states first adopt control strategies 

under state law and then submit those for incorporation by EPA into federal law. States 

currently have their Stage II programs established in their own legislation and regulations, and 

EPA does not have the unilateral power to alter state law. Moreover, where states have 

submitted their laws to EPA and EPA has approved them into SIPs, the only way to remove 

those state law provisions from SIPs is for states to later seek such SIP revisions through new 

submissions, which EPA would then act on under CAA section 110. In addition, when a state 

wishes to remove the requirements for Stage II, the CAA requires EPA to ensure that such an 

action would not interfere with other applicable CAA requirements under section 110(l), which 

precludes the Administrator from approving a SIP revision if it would interfere with applicable 

CAA requirements (including attainment and maintenance of the ozone NAAQS). Some states 

may find that by removing Stage II requirements they are reducing the overall level of reductions 

for which they have previously obtained credit. Such states would need to show that foregoing 

any additional VOC emissions reductions resulting from Stage II would not interfere with 

attaining and maintaining the ozone NAAQS in violation of section 110(l). EPA is providing 

additional guidance to the states to facilitate completion of these analyses, although that guidance 

is not part of today’s final rule.

Comment: Commenters (EPA-HQ-OAR-2010-1076-0046, 0049, 0051 and 0052) 

believed that if Stage II controls are mandated in the OTR for several more years, it will lead to a 

net emissions increase. The commenter explained that when an ORVR equipped vehicle is 

fueled at a Stage II equipped service station, a lack of compatibility between the two controls 

may actually cause emission reduction of the two systems together to be less than the emission 

reduction achieved by either system alone. The commenter contended that by removing Stage II, 

states would actually be reducing the amount of emissions because a substantial majority of cars 

on the road will have ORVR and will increase as older vehicles continue to be phased out. The 

commenter assumed that if EPA does not revise its section 184(b)(2) guidance for “comparable” 

measures, states in the OTR will need to achieve additional emissions reductions in order to 

offset the removal of Stage II. The commenter encouraged EPA to clearly state that this 

reduction in emissions from the removal of Stage II can act as an offset for purposes of the 

comparability analysis. In other words the vapor emissions that would result if Stage II and 

ORVR were used in conjunction with one another should be deducted from the total emission 

reductions states would otherwise need to achieve in implementing another “comparable” 

emissions reduction policy. The commenter also recommended that the guidance contain 

detailed data on the percentage of vehicles on the road projected to have ORVR systems that 

would be used in the comparability analysis.

 
41

Response: We acknowledge the points raised by the commenters, although they are not 

directly relevant to the ORVR widespread use finding and waiver of the section 182(b)(3) 

requirement that is the subject of this rulemaking. Part of the purpose for developing the 

separate section 184(b)(2) guidance released after the publishing of this final rule is to describe 

these kinds of concerns and address how they might be handled in future SIPs.

Comment: Commenters (EPA-HQ-OAR-2010-1076-0032, 0046, 0049, 0051 and 0052) 

indicated that in 1995, EPA released a study identifying control measures capable of achieving 

emission reductions “comparable” to those achievable by Stage II vehicle refueling controls in 

the OTR.22 The commenter pointed out that in the study, EPA interpreted section 184(b)(2) as 

saying only measures not already prescribed under the CAA can be considered “comparable” 

measures sufficient to eliminate the Stage II requirement for areas in the OTR. The commenters

concluded that under EPA’s interpretation, ORVR controls cannot be considered a “comparable” 

measure because ORVR systems area already required under section 202(a)(6). The commenters

urged EPA to reconsider this interpretation. The commenters further alleged that it is not 

reasonable to interpret the statute as saying a technology designed to replace Stage II is not 

comparable to Stage II. The commenters asserted that such an interpretation ignores the plain 

and contextual meaning of the statute. The commenters added that by requiring areas in the 

OTR to implement Stage II or policies that achieve emission reductions “comparable” to Stage 

II, Congress wanted states to achieve mechanisms not already in place. The commenters further 

stated that this is to be distinguished from mechanisms not already prescribed under the statute. 

The commenter contended that when the 1995 study was released, ORVR standards were 

promulgated less than one year earlier. The commenters indicated that automobile 

manufacturers generally did not begin installing ORVR on new passenger cars until 1998 when 

40 percent of new cars were required to have ORVR. Since 2000, all new cars have been 

required to be equipped with ORVR, and all light duty trucks and vans have been so required 

since 2003. The commenters concluded that under the CAA, states in the OTR could not point 

to ORVR to avoid requiring Stage II in 1995 because ORVR was not yet in place, not because 

ORVR was already prescribed under the statute. The commenters stated their belief that ORVR 

was designed to phase out the Stage II requirement, not augment it.

 The commenters pointed out that EPA stated in the July 15, 2011, preamble that when 

an ORVR vehicle is fueled at a service station equipped with vacuum assist Stage II vapor 

recovery system, a lack of compatibility between the two controls may actually cause the 

emission reduction of the two systems together to be less than the emission reduction achieved 

by either system alone. The commenters offered a 2007 study published by the Northeast States 

for Coordinated Air Use Management (NESCAUM), titled ”Onboard Refueling Vapor Recovery

 

22 U.S. EPA, Office of Air Quality Planning and Standards, “Stage II Comparability Study for the Northeast Ozone 

Transport Region.” 
42

Systems Analysis of Widespread Use,” noted the potential for significant excess emissions 

throughout the northeast as early as 2012 caused by the incompatibility of the two systems.23

The commenters also offered that beyond the increasing prevalence of ORVR controls, 

interpreting the word “comparable” in section 184(b)(2) as referring to measures not already

prescribed under the CAA disregards EPA’s own control efficiency data. The commenters

contended that according to EPA, ORVR-equipped vehicles achieve 98 percent control 

efficiency, while Stage II alone achieves just 77.4 percent control efficiency. The commenters

indicated their belief that ORVR has infiltrated the market to the point that the EPA no longer 

believes Stage II will be necessary within two years, largely because ORVR is more successful at 

reducing emissions than Stage II. Nonetheless, under EPA’s current interpretation of section 

184(b)(2), states in the OTR are currently unable to point to ORVR’s prevalence as achieving 

“comparable” emissions reductions. The commenters believed this is arbitrary and 

unreasonable. The commenters further speculated that EPA intends to provide additional 

guidance for OTR states on how they can conduct updated comparability analyses based on the 

1995 study for purposes of removing Stage II under section 184(b)(2). The commenters

recommended that EPA should revise its interpretation of the word “comparable” in that section. 

The commenters asserted that until EPA releases new guidance that clarifies its interpretation of 

the word “comparable” in section 184(b)(2), they lack sufficient information to provide EPA

with informed comments on the Proposal. The commenters further maintain that if EPA does 

not revise its outdated interpretation of the word “comparable” in section 184(b)(2), the proposed 

rule will be of little benefit to refueling facilities located in the OTR. The commenters offered 

their belief that cash-strapped states will spend their limited resources on independent 

comparability analyses and revise their SIPs to eliminate the Stage II requirement. The 

commenters conclude that if the EPA updates its interpretation to reflect fifteen years of

progress, facilities in the OTR stand to reap substantial benefit.

Response: See our earlier responses to similar comments regarding the separate and 

related, but not directly relevant, CAA section 184(b)(2) issues. Today’s rulemaking takes no 

final action under section 184(b)(2), but instead only under section 202(a)(6) to find widespread 

use of ORVR and to exercise our express authority to waive the specific section 182(b)(3) 

requirement. The commenter is free to re-raise its section 184(b)(2) concerns in the context of 

future SIP action implementing that section. EPA acknowledges the concerns raised by the 

commenters with regards to comparable measures and the OTR states. The NPRM discussed 

this issue by describing the emissions of concern as being those captured by Stage II incremental 

to ORVR as opposed to all emission reductions from Stage II in the absence of ORVR, as was 

the case in the mid-1990’s. What has changed is the expected level of emissions reductions that 

Stage II programs can obtain, in light of the fact that in the OTR areas, Stage II systems (or other 

comparable measures) were fully implemented more than a decade ago and ORVR is now in 

 

23 NESCAUM, “Onboard Refueling Vapor Recovery Systems Analysis of Widespread Use,” Appendix B and C, 

August 20, 2007. http://www.nescaum.org/documents/onboard-refueling-vapor-recovery-systems-analysis-ofwidespread-use/
43

force with ORVR-equipped vehicles phasing in at the rate of 3-4 percent of the fleet each 

calendar year. Thus, the factual circumstances influencing EPA’s estimate of what level of 

emissions reductions are “comparable” to those achieved by Stage II, incremental to ORVR, are

different today compared to the mid-1990s. This issue will be further addressed in EPA’s 

guidance which will be issued after publication of this rulemaking, but is not part of the final 

rule.

 VI. Comments Regarding Decommissioning of Stage Vapor Recovery Systems

Comment: Commenter (EPA-HQ-OAR-2010-1076- 0037) insisted that where Stage II 

equipment is decommissioned, steps must be taken to minimize leaks and fugitive emissions, all 

of which may result in increased exposure to air toxics or groundwater and soil contamination. 

NESCAUM urges EPA to provide guidance to ensure that Stage II decommissioning occurs in a 

manner that minimizes potential for vapor releases from underground piping at facilities that 

remove their Stage II systems. This guidance should encourage state air offices to coordinate 

with their state counterparts that manage underground storage tanks to ensure that consistent 

procedures are in place to address liquid and vapor leak issues associated with decommissioning.

Commenter (EPA-HQ-OAR-2010-1076-0055) contends that for regions interested in 

decommissioning Stage II recovery systems, EPA must provide clear implementation guidance 

describing the CAA provisions that apply depending on an area’s circumstances (i.e., Ozone 

Transport Region [OTR] states, states opting in to Stage II programs, states with Stage II 

recovery systems prior to 1990 and states with Stage II as a result of the 1990 CAA 

amendments), since the applicable CAA requirements vary depending on when Stage II was 

initially implemented or whether a particular area is part of the OTR. Although some states have 

successfully decommissioned Stage II recovery systems through the SIP revision process, for 

those areas eligible to decommission Stage II, the commenter believes EPA must still provide the 

2 elements minimally needed for a SIP revision, including what is needed for areas subject to 

CAA section 110(l) and for those subject to section 193. The resulting SIP process should be a 

streamlined one, consistent with the principles underlying the ongoing NACAA-ECOS-EPA SIP 

Reform Workgroup.

Commenter (EPA-HQ-OAR-2010-1076-0043) pointed out that EPA did not provide any 

guidance on the proper decommissioning or removal of Stage II equipment from facilities. The 

commenter expressed concern that Stage II systems be decommissioned properly and requested 

that EPA provide proper shut down procedures and final inspection criteria to certify a proper 

shut down.

Commenter (EPA-HQ-OAR-2010-1076-0042) requested that EPA provide further 

information on the overall expectations and steps needed for states to be granted a waiver and 

properly retire a Stage II program. The commenter stated that the guidance should include the 

following: 1) a listing of specific steps necessary for gasoline dispensing facilities to 
44

decommission their existing Stage II equipment, 2) a description of the State’s role in the 

decommissioning procedure and outline any required follow-up with the affected GDFs.

Commenter (EPA-HQ-OAR-2010-1076-0048) requested that EPA should be clear in the 

final rule that the process for physically decommissioning the Stage II equipment should be left 

to the individual states and regions and not dictated in a rule or guidance document by EPA.

Response: EPA understands the request for clear guidelines for decommissioning Stage 

II systems safely and effectively. EPA has often referenced that industry association codes and 

standards be followed (where applicable) to ensure that Stage II systems are properly designed, 

constructed, installed, and, in this case, dismantled or decommissioned. Industry codes and 

standards provide a means for improving methods or developing alternative methods of Stage II 

system decommissioning and we encourage States and local agencies to reference these codes. 

EPA realizes that industry codes and standards may be updated periodically and EPA also 

recognizes that State and local requirements may supersede industry codes and standards or be 

inherently more stringent. EPA regulations do not require the use of a particular issue of any

code. EPA encourages owners/operators to use the version of the code or standard that is current 

at the time the Stage II decommissioning activity occurs. The Petroleum Equipment Institute 

(PEI) and at least four states have recommended practices or specific requirements for 

decommissioning Stage II systems. The PEI guidance, “Recommended Practices for Installation 

and Testing of Vapor Recovery Systems at Vehicle Fueling Sites, PEI/RP300-09,” is especially

instructive as it was developed by industry experts with a focus on regulatory compliance and 

safety. It basically contains the steps which involve dismantling Stage II hardware and applies to 

both balance and vacuum assist type systems. Please be aware that there may be other codes or 

standards not listed here that may be used to ensure proper Stage II decommissioning.

Comment: Commenter (EPA-HQ-OAR-2010-1076-0060) described themselves as a 

company that has valid emissions monitoring data from sites where Stage II vapor return has 

been disconnected. The commenter supplied data that showed the effectiveness of conducting 

continuous pressure monitoring inside storage tanks at locations where Stage II vapor recovery 

has been removed. 

Response: EPA is encouraged that continuous pressure monitoring inside storage tanks 

can be very effective in monitoring the liquid and vapor containment integrity of the system. 

EPA encourages the commenter to make available their technology to the states to consider in 

SIP actions and for the GDF operators to follow federal, state and local requirements for tank 

integrity testing. We did not propose nor at this point are we considering any mandatory integrity 

testing beyond that contained in 40 CFR part 63 subpart CCCCCC.

 VII. Comments Regarding EPA’s Proposed Estimated Cost Savings

Comment: Commenters (EPA-HQ-OAR-2010-1076-0046, 0049, 0050, 0051 and 0052),

estimated the cost for purchase and installation of new Stage II equipment to be $50,000 per 

retail site, exclusive of annual maintenance costs. The commenters further stated that overall 
45

escalating costs at retail locations is increasingly burdensome for small business petroleum 

marketers and largely unnecessary given what the commenters believed is current attainment of 

widespread use of ORVR nationwide. In regards to the Stage II waiver, the commenters stated 

that the waiver should be self-effective on June 30, 2013, when nationwide widespread use is set 

to occur, rather than conditioned on the lengthy process involving the preparation, submission 

and approval of a SIP for the NAAQS. The commenters added that this action would be far more 

likely to achieve the Administration’s regulatory and cost-savings objectives, rather than 

requiring states with strained resources to develop and submit a SIP revision.

Response: EPA thanks the commenters for providing support for the waiver of CAA 

Section 182(b)(3) Stage II vapor recovery requirements. EPA also recognized a cost savings in 

the decommissioning of Stage II vapor recovery systems and we share the commenter’s interest 

in a quick and orderly decommissioning of Stage II installations and avoidance of installations at 

new GDFs where they may be in place for a very short time assuming such actions meet state 

requirements. 

EPA understands that making the Stage II waiver automatic, without the need to revise 

SIPs would shorten the time before a state could act to allow GDF owners/operators to 

decommission their Stage II installations. However, as previously explained, such an approach 

is not possible under the cooperative federalism scheme of the CAA, which depends upon state 

adoption and submission of proposed SIP revisions before EPA can revise any SIP that currently 

requires Stage II under state law. Moreover, when a state wishes to remove from its EPAapproved SIP its own state law requirements for Stage II, the CAA requires EPA to ensure that 

such an action would not interfere with other applicable CAA requirements under section 110(l), 

which precludes the Administrator from approving a SIP revision if it would interfere with 

applicable CAA requirements (including attainment and maintenance of the ozone NAAQS). 

Of course, even after EPA takes final action to find widespread use of ORVR has 

occurred and issues a waiver of the section 182(b)(3) requirement, states remain free under CAA 

section 116 to choose to implement Stage II programs in any area, and would not be forced to 

remove existing Stage II provisions from a SIP. States may choose to continue to require or 

enhance Stage II controls in a particular area or areas assuming they continue to achieve air 

quality benefits. 

 Comment: Commenter (EPA-HQ-OAR-2010-1076-0036) believed that EPA’s rule 

changes did not address the incompatibility of ORVR and State II vapor recovery systems. The 

commenter stated that EPA failed to highlight the unique differences between the two types of 

State II vapor recovery systems, the balanced system and the assisted systems. The commenter 

offered inherent advantages in the balance system and stated that EPA proposal neglected to 

implement programs that can lower a station’s operating costs and save substantial quantities of 

gasoline by preventing air pollution. The commenter contends that funds would be better spent 

converting existing Stage II assist and balance sites into enhanced vapor recovery (EVR) 

systems. The commenter claimed EVR systems would save over 66 million gallons of gasoline 

between mid-2013 and the end of 2020. 
46

Response: In the proposed rule, EPA believes it addressed the incompatibility of ORVR 

and Stage II vapor recovery systems by indicating that when an ORVR vehicle is fueled at a 

GDF equipped with a vacuum assist Stage II vapor recovery, a lack of compatibility between the 

two controls may actually cause the emission reduction of the two systems together to be less 

than the emission reduction achieved by either system alone. This issue was discussed in the 

NPRM and documents related to this issue were placed in the docket at that time. A guidance 

document related to this issue, to help states address this issue in future SIP actions, will be 

released subsequent to this final rule. EPA proposed a waiver of the requirements of section 

182(b)(3) and did not propose a waiver of a certain type of Stage II vapor recovery technology in 

favor of another Stage II technology. In fact the section 182(b)(3) requirement does not specify

which type of Stage II hardware should be used. This specification was left to the affected 

states. EPA is taking final action to find widespread use of ORVR has occurred and has issued a 

waiver of the section 182(b)(3) requirement. The waiver of the section 182(b)(3) requirement 

does not depend upon whether an area has chosen to use a balance system or a vacuum assist 

system. States remain free under CAA section 116 to choose to implement Stage II programs in 

any area, and would not be forced to remove existing Stage II provisions from a SIP. Those 

States may implement any particular type of technology they may choose. In the draft 

Regulatory Support Document, EPA’s intent was to associate national cost savings with the 

decommissioning and removal of Stage II equipment. However, EPA has not prohibited any area 

that maintains its Stage II requirements from allowing investment into enhanced Stage II systems 

or any other system which enhances emission controls at GDFs.

Comment: Commenters (EPA-HQ-OAR-2010-1076-0046, 0049, 0051, and 0052)

welcomed EPA’s desire to eliminate Stage II vapor recovery requirements. NACS has urged 

EPA move in this direction for many years. However, the commenters articulated that if the 

Proposed Rule were finalized as written, it would achieve only 41 percent of the 

Administration’s desired savings, leaving over $52,000,000 of the projected annual savings 

unrealized. The commenters indicated that 15,937 retail fuel outlets are within the OTR. The 

commenters asserted that this is approximately 59 percent of the total number of dispensing 

facilities (outside California) that are required to have Stage II vapor recovery systems. The 

commenters claimed that based on EPA’s estimated cost savings, affected stations would save 

approximately $3,277 annually if Stage II requirements were eliminated. The commenters

determined that the total dollars saved by eliminating Stage II in the OTR would be 

approximately $52,225,000. The commenters concluded that according to EPA’s estimate for the 

total savings achieved by the Proposal ($88 million), nearly 60 percent of such savings would be 

lost if areas in the OTR are still required to mandate Stage II controls.

Response: EPA’s analysis indicates that there are about 17,000 public, government, and 

private GDFs in the OTR with Stage II. This count varies almost daily as current GDFs close and 

new ones are opened. This final rule will allow states with Serious and above ozone 

nonattainment areas that are now required by CAA section 182(b)(3) to have Stage II gasoline 

vapor recovery equipment on these GDFs to be relieved of this requirement after the waiver date. 
47

States in the Ozone Transport Region (OTR) may already choose, in lieu of Stage II 

requirements in areas that are cleaner than Serious ozone nonattainment, to adopt measures to 

achieve emissions reductions that are comparable to those achievable by Stage II. After the 

Stage II waiver is effective, Serious and above ozone nonattainment areas in the OTR would also 

be able to make this choice. Separate from this rulemaking, EPA will develop additional 

updated guidance for OTR states on determining “comparability” of emissions reductions in light 

of continuing growth of the vehicle fleet equipped with ORVR. We believe this guidance will 

facilitate state analysis regarding comparable reductions if they choose to both act on the Stage II 

waiver to revise their section 182(b)(3) SIPs and to revise their section 184(b)(2) SIPs. EPA’s 

estimate of potential cost savings was based on the assumption that states in the OTR currently

subject to the section 182(b)(3) requirement would be able to remove Stage II and adopt 

comparable measures as needed, and we still believe this is a valid view. Indeed such actions are 

now underway to varying degrees in Maine, Vermont, and New Hampshire.