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Citation: 77 Fed. Reg. 35279 2012

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-- The search text of this PDF is generated from uncorrected OCR text.Federal Register/Vol. 77, No. 114/Wednesday, June 13, 2012/Rules and Regulations

§52.1620 Identification of plan. (c) * * *

EPA-APPROVED NEW MEXICO REGULATIONS

State citation Title/subject State approval/effective EPA approval date Comments date

New Mexico Administrative Code (NMAC) Title 20-Environment Protection Chapter 2-Air Quality

Part 66

............................... Cotton Gins

....................... 4/7/2005

............................ 6/13/2012 [Insert FR page number where document begins].

[FR Doe. 2012-14154 Filed 6-12-12; 8:45 am]

BILLING CODE 6560-50-P

ENVIRONMENTAL PROTECTION
AGENCY

40 CFR Part 52 [EPA-R09-OAR-2010-0717; FRL9661-3]
Approval and Promulgation of Implementation Plans; Arizona; Update to Stage IIGasoline Vapor Recovery Program; Change inthe Definitionof "Gasoline" To Exclude "E85"

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

SUMMARY: Under the Clean Air Act,EPA is taking final action to approve certain revisions to the Arizona State Implementation Plan submittedby the Arizona Department ofEnvironmental Quality. These revisions concern amendments to the statutory and regulatory provisions adoptedby the State ofArizona to regulate volatile organic compound emissions from the transfer ofgasoline from storage tanks to motor vehicle fuel tanks atgasoline dispensing sites, i.e., stage IIvapor recovery. The revisions also amend the definition of"gasoline" to explicitly exclude E85 and thereby amend the requirements for fuels available for use in the Phoenix metropolitan area as well

asthe requirements forvapor recovery. In approving therevisions, EPA is taking final action to waive the statutory stage IIvapor recovery requirements at E85 dispensing pumps within the Phoenix metropolitan area. Lastly, EPA is taking final action to correct an EPA rulemaking that approved a previous version oftheArizona rulesregulating these sources and to thereby identify the appropriate regulatory agency and specific rules thatwere previously approved and incorporated by reference into the Arizona State Implementation Plan.

DATES: EffectiveDate:This rule is effective onJuly 13, 2012.

ADDRESSES: EPA has established docket number EPA-R09-OAR-2010-0717 for this action. The index to the docket is available electronically at www.regulations.govand inhard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed in the index, some information maybe publicly available only at thehard copy location (e.g., copyrighted material), and

some may not be publicly available in either location (e.g., Confidential Business Information). To inspect the hard copy materials, please schedule an appointment during normalbusiness hours with the contact listed in the FOR
FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: For further information on therevisions to the Arizona State Implementation Plan submitted by the Arizona Department of Environmental Quality, contact Mr. Andrew Steckel, EPA Region IX, 75 Hawthorne Street (AIR-4), San Francisco, CA 94105, phone number (415) 947-4115, fax number (415) 947- 3579, or by email at steckel.andrew@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, "we," "us," and "our" refer to EPA.

Table of Contents

I. EPA's Proposed Action

A. The State's Submittal B. Regulatory Context C. EPA's Evaluation ofSIP Submittal and

Proposed Action D. Proposed Correction ofPrevious

Rulemaking II. Public Comments and EPA Responses II. Final Action IV. Statutory and Executive Order Reviews I. EPA'sProposed Action

A. The State'sSubmittal

On October 3, 2011 (76 FR 61062), we proposed to approve a revisionto the Arizona State Implementation Plan (SIP) submitted to EPA on September 21, 2009by the Arizona Department of Environmental Quality (ADEQ). The
purpose ofthe SIP revision isto update the gasoline vapor recovery program that was originally submitted and approved by EPA in 1994 to meet certain applicable requirements ofthe Clean Air Act, as amended in 1990 (CAA or "Act").' The specific revisions include statutory provisions and administrative rules regulating the emissions ofvolatile organic compounds (VOC)due to the transfer of gasoline from storage tanks (typically underground) tomotor vehicle fuel tanks at gasoline stations in the Phoenix metropolitan area. The statutory provisions and administrative rules are contained in enclosures 3and 4 of ADEQ's September 21, 2009 SIP revision submittal package.2

ADEQ's submittal represents an update to the stage IIrequirements but is comprehensive in that the submitted

'Gasoline dispensingpump vapor control devices, commonly referred to as "stage 1I"vapor recovery, are systems that control VOC vapor releases during the refueling of motor vehicles. This process takes the vapors normally emitted directly into the atmosphere when pumping gas and recycles them back into the fuel storage tank, preventing them from polluting the air.For more information on stage I vapor recovery systems, please see EPA's proposed rule, "Air Quality: Widespread Use forOnboard Refueling Vapor Recovery and Stage I Waiver," 76 FR 41731, at 41734 (July 15, 2011).

2By letter datedApril 12, 2011, ADEQ substituted the statutes and rules in enclosures 3 and 4 as submitted on September 21, 2009 with official, published versions ofthe same statutes and rules in keeping withthe requirements. ADEQdid

so inresponse to an EPArequest for the official, published versions ofthe statutes andrules to comply with the requirements established by the Office ofthe Federal Registerfor incorporating such materials byreference into the Code ofFederal Regulations. 

### 3527935280 Federal Register/Vol. 77, No. 114/Wednesday, June 13, 2012/Rules and Regulations

statutory and regulatory provisions also recovery program because both submitted by ADEQdemonstrate address general requirements relatedto programs now rely on that particular compliance with the procedural stage Ivapor recovery. 3While ADEQ's definition. In our October 3, 2011 requirements set forth in section 110() submittal relates almost entirely to the proposed rule, we concluded that ofthe CAA. State's vapor recovery program, it also ADEQ's September 21, 2009 SIP Table 1lists the statutory provisions, amends the State's fuels program by revision submittal contains adequate andTable 2lists the administrative amending the definition ofthe term documentation ofpublic notice, "gasoline" to exclude "E85," 4 a change opportunity for comment, and a public rules, thatwere submittedby ADEQ on that affects both the gasoline fuels hearing on theproposed SIP revision September 21, 2009 and that we are
program established for the Phoenix (see enclosure 5ofthe submittal) and approving in today's action. metropolitan area and the stage II vapor that the public participation materials

TABLE 1-SUBMITTED STATUTORY PROVISIONS

Arizona revised statutes Title Submitted

Title 41, chapter 15, article 1,section 41-2051

.......................... Definitions: subsection 6 ("Certification"), subsection 10 ("De- 09/21/09

partment"), subsection 11 ("Diesel fuel"), subsection 12 ("Director"), and subsection 13 ("E85"). Title 41, chapter 15, article 6, section 41-2121

.......................... Definitions: subsection 5 ("Gasoline")

........................................ 09/21/09 Title 41, chapter 15, article 7, section 41-2131

.......................... Definitions: subsection 1 ("Annual throughput"), subsection 2 09/21/09

("Clean air act"), subsection 3 ("Gasoline dispensing site"), subsection 4 ("Stage I vapor collection system"), subsection 5 ("Stage II vapor collection system"), and subsection 6 ("Vapor control system"). Title 41, chapter 15, article 7, section 41-2132

.......................... Stage I and stage IIvapor recovery systems

............................. 09/21/09 Title 41, chapter 15, article 7, section 41-2133

.......................... Compliance schedules

................................................................ 09/21/09

TABLE 2-SUBMITTED RULES

Effective
Arizona administrative code Rule title date Submitted (for state purposes)

Title 20, chapter 2, article 1,section R20-2-101

........... Definitions

....................................................................... 06/05/04

...... 09/21/09 Title 20, chapter 2, article 9, section R20-2-901

........... Material Incorporated by Reference

............................... 06/05/04

...... 09/21/09 Title 20, chapter 2, article 9, section R20-2-902

........... Exemptions

..................................................................... 06/05/04

...... 09/21/09 Title 20, chapter 2, article 9, section R20-2-903

........... Equipment and Installation

............................................. 06/05/04

...... 09/21/09 Title 20,chapter 2, article 9, section R20-2-904

........... Application Requirements and Process for Authority to 06/05/04

...... 09/21/09 Construct Plan Approval. Title 20, chapter 2, article 9, section R20-2-905

........... Initial Inspection andTesting

......................................... 06/05/04

...... 09/21/09 Title 20, chapter 2, article 9, section R20-2-907

........... Operation

........................................................................ 10/08/98

...... 09/21/09 Title 20, chapter 2, article 9, section R20-2-908

........... Training and Public Education

....................................... 10/08/98

...... 09/21/09 Title 20, chapter 2, article 9, section R20-2-909

........... Recordkeeping and Reporting

....................................... 10/08/98

...... 09/21/09 Title 20, chapter 2, article 9, section R20-2-910

........... Annual Inspection and Testing

....................................... 06/05/04

...... 09/21/09 Title 20, chapter 2, article 9, section R20-2-911

........... Compliance Inspections

................................................. 06/05/04

...... 09/21/09 Title 20, chapter 2, article 9, section R20-2-912

........... Enforcement

................................................................... 06/05/04

...... 09/21/09

Under Arizona law, the principal stage IIvapor recovery requirements are found in Arizona Revised Statutes (ARS) section 41-2132 ("Stage I and stage IIvapor recovery systems"), which requires gasoline dispensing sites tobe equipped with a stage IIvapor collection system within "an ozone nonattainment area designated as moderate, serious, severe or extreme by the United States environmental protection agency under §107(d) ofthe

3"Stage I"vapor recoveryrefers tothecollection ofVOC emissionsexpelled from underground storage tanks atgasoline stations whenbeing refilledbytank trucks. TheMaricopa CountyAir Quality Department (MCAQD) implements itsown stage Ivaporrecovery regulation within the Phoenix metropolitan area, Regulation II, Rule353 ("TransferofGasoline into Stationary Storage Dispensing Tanks"). EPAapproved MCAQD rule clean air act, area Aor other geographical area * * *."ARS section 41-2132(C). "Area A" isdefined in ARS section 49-541 and itincludes all ofthe metropolitan Phoenix former 1-hour

ozone nonattainment area plus additional areas in Maricopa County to the north,east, and west, as well as small portions ofYavapai County and Pinal County.

ARS 41-2132 also provides an exemption for gasoline dispensing sites

353 and incorporated it intothe Arizona SIP. See
61 FR 3578 (February 1, 1996). MCAQDM's stage I vaporrecovery program and related rule arenot affected by today's proposed action.

4E85 is a motor vehicle fuel that is a blend ofas little as 15 percent gasoline and up to 85 percent ethanol. (Inwintertime applications, the ratio may be 30percent gasoline and 70 percent ethanol.) E85

can only beused in specially designed FFVs, which with a throughput ofless than 10,000 gallons per month or lessthan 50,000 gallons per month in the case ofan independent small business marketer as defined in section 324 ofthe CAA, and for gasoline dispensing sites that are located on a manufacturer's proving ground. ARS 41-2133 sets forth certain compliance schedules related to the stage IIvapor recovery requirements in ARS 41-2132.

have mostly been manufactured since 1998. Since these are newer vehicles, mostofthem are equipped withORVR, and everyFFV builttoday has ORVR. Thus, most vehicles refueling atE85 dispensing pumps are already having their evaporative emissions captured, as in the cases of late model rental carsrefueling at rental car facilities and newlymanufactured cars beingfueled for the first time at automobile assembly plants.

### Federal Register/Vol. 77, No. 114/Wednesday, June 13, 2012/Rules and Regulations

The stage II vapor recovery requirements in ARS 41-2132 relyupon the definitions of certain terms, such as "gasoline," "stage II vapor collection system," and "E85," among others, which are codified in ARS sections 41- 2015, 41-2121, and 41-2131, and ADEQ included the relevant definitions, along with ARS sections 41-2132 and 41- 2133, in the SIP revision submittal dated September 21, 2009. See table 1 ofthis document. The definition of "gasoline," which iscodified in paragraph (5)ofARS 41-2121, specifically excludes "diesel fuel" and "E85."

ARS section 41-2132(G) directs the Arizona Department ofWeights and Measures (ADWM) to adoptrules that establish standards for the installation and operation of stage I and stage II vapor recovery systems. In 1994, EPA approved an earlier version ofADWM's rules for stage II vapor recovery. See 59 FR 54521 (November 1, 1994). Since then, in addition to renumbering and recodifying the rules, ADWM has amended the vapor recovery rules to delete, modify, and add certain definitions; to approve use of certain

new test procedures developed by the California Air Resources Board (CARB); to include general requirements for stage Ivapor recovery systems; to add exemptions for motor raceways, motor vehicle proving grounds, andmarine and aircraft refueling facilities; to clarify and expand application requirements; andto enhance compliance-related provisions.

ADWM's rules for such systems are

now codified at title 20, chapter 2, article 9 ("Gasoline Vapor Recovery"), ofthe Arizona Administrative Code (AAC). These rules relyupon certain definitions in AAC, title 20, chapter 2, article 1 ("Administration and Procedures"), section R20-2-101 ("Definitions"). ADEQ submitted these rules and definitions to EPA aspart of the stage II SIP revision dated September 21, 2009-see table 2ofthis document.

In our October 3, 2011 proposed rule,

we also explained that in our 1994 final rule approving an earlier version of ADWM's vapor recovery rules, we made

an error in how we codified the stage II vapor recovery rules into the Arizona SIP, and were thus proposing to correct that error. Please see our October 3, 2011 proposed rule at pages 61063 and 61064 for additional information on these topics.

B. RegulatoryContext

Under CAA section 182(b)(3), stage II vapor recovery systems are required to be used at larger gasoline dispensing facilities located in Serious, Severe, and Extreme nonattainment areas for ozone. 5

More specifically, theAct specifies that such systems be installed at any facility that dispenses more than 10,000 gallons ofgasoline per month, or, in the case of

an independent smallbusiness marketer (asdefined in CAA section 324), any facility that dispenses more than 50,000 gallons ofgasoline per month. Based on deadlines established inthe Act, within 24 months from the effective date ofthe initial area designation and classification, states must adopt a stage II program into their SIPs, andthe controls must be installed according to specified deadlines following state rule adoption. For existing facilities the installation deadlines depend onthe date the facilities were built and the monthly volume ofgasoline dispensed. SeeCAA sections 182(b)(3)(A)-(B), and 324(a)-(c).6

However, the CAA provides discretionary authority to the EPA Administrator to, by rule, revise or waive the section 182(b)(3) stage II requirement afterthe Administrator determines that On-Board Refueling Vapor Recovery (ORVR) is in widespread use throughout the motor vehicle fleet. See CAA section 202(a)(6). ORVR consists ofan activated carbon canister installed inthe vehicle into which vaporsbeing expelled from the vehicle fuel tanks are forced to flow. There the vapors are captured bythe activated carbon in the canister. When the engine is started, the vapors are drawn offofthe activated carbon and into the engine where they are burned

as fuel. EPA promulgated ORVR standards on April 6, 1994, 59 FR 16262.

EPA firstbegan the phase-in ofORVR by requiring that 40percent of passenger cars manufactured in model year 1998be equipped with ORVR. The

5 See CAA section 182(b)(3), 42 U.S.C. 7511a(b)(3). Originally, the section 182(b)(3) stage I requirement alsoapplied inall Moderate ozone nonattainment areas. However, under section 202(a)(6) of the CAA, 42 U.S.C. 7521(a)(6), the requirements ofsection 182(b)(3) no longer apply in Moderate ozone nonattainment areas after EPA promulgated ORVR standards on April 6, 1994, 59 FR 16262, codified at 40CFR parts 86 (including 86.098-8), 88 and 600. Under implementation rules issued in2004 for the 1997 8-hour ozonestandard, EPA retained the stage I1-relatedrequirements under section 182(b)(3) asthey applied forthe 1- hour ozone standard. 40 CFR 51.900(f)(5).

6Section 182(b)(3)(B) hasthe following effective
date requirements for implementation ofstage I after the adoption date bya state ofa stage I1 rule: 6 months after adoption ofthe state rule, for gas stations built after the enactment date (whichfor newly designated areas wouldbe the designation date); 1 year after adoption date, for gas stations pumping at least 100,000 gal/month based on average monthly sales over 2-year periodbefore adoption date; 2 years after adoption, for all others. ORVR requirement for passenger cars

was increased to 100 percent by model
year 2000. Phase-in continued for other vehicle types and ORVR hasbeen a requirement on virtually all new gasoline-powered motorvehicles (passenger cars,lighttrucks, and complete 7heavy-duty gasoline powered vehicles under 10,000 lbs gross vehicle weight rating (GVWR)) sold since model
year 2006. See40 CFR part 86. Currently, ORVR-equipped vehicles comprise approximately 67 percent of the in-service vehicle fleetnationwide, and account for around 76percent of the vehicle miles traveled (VMT)inthe nationwide fleet. The percentage ofnonORVR vehicles and the percentage of VMT driven by those vehicles declines each year as these oldervehicles wear out and are removed from service. Since certain vehicles are not required to have ORVR, including motorcycles and incomplete heavy-duty gasoline powered trucks chassis, under current requirements the nationwide motor vehicle fleet would never be entirely equipped with ORVR but these vehicles
account for less than 2 percent of national annual highwaygasoline consumption.

The CAA anticipates that, over the long-term, ORVR will reduce thebenefit from, and the need for, stage IIvapor recovery systems at gasoline dispensing sites in ozone nonattainment areas, and

as noted above, section 202(a)(6) ofthe CAA allows EPA torevise or waive the application ofstage II vapor recovery requirements for areas classified as Serious, Severe, or Extreme for ozone, as appropriate, after such time as EPA determines that ORVR systems are in widespread use throughout themotor vehicle fleet. CAA section 202(a)(6) does
not specify which motorvehicle fleet
must be the subject ofawidespread use determination before EPA mayrevise or waive the section 182(b)(3) stage II requirement. Nor does the CAA identify what level ofORVR use in the motor vehicle fleet must be reached before it is "widespread." To date, EPAhas issued two memoranda addressing when ORVR widespread use mightbe found for particular fleets.8

7 For purposes ofORVR applicability, a "complete" vehicle means a vehicle that leaves the primary manufacturer's control with itsprimary load carrying device orcontainer attached.

8 "Removal of Stage I Vapor Recovery in
Situations Where Widespread Use ofOnboard Vapor Recovery is Demonstrated," memorandum from StephenD. Page, Director, EPA Office ofAir Quality Planning and Standards, and Margo Tsirigotis Oge, Director, EPA Office of Transportation and Air Quality, to Regional Air Division Directors, dated December 12, 2006 ("2006 Page/Oge Memorandum"); and "Removal of Stage Continued 3528135282 Federal Register/Vol. 77, No. 114/Wednesday, June 13, 2012/Rules and Regulations

EPA expects the possibility of different rates ofimplementation of ORVR across different geographic regions and among different types of
motor vehicle fleets within any region. Given this, EPA does notbelieve that CAA section 202(a)(6) mustbe read narrowly to allow a widespread use determination and waiver ofthe stage II requirement for a given area or area's fleet only ifORVR use has become widespread through the entire United States, or only ifORVR use has reached

a definite level in each area. Rather, EPA believes that section 202(a)(6) allows theAgency to apply the widespread use criterion to either the entire motorvehicle fleet in a State or nonattainment area, or to special segments ofthe overall fleetfor which ORVRuse is shown to be sufficiently high, and tobase widespread use determinations on differing levels of ORVRuse, as appropriate. EPA also believes that theAct allows the Agency to use an area-specific rulemaking approving a SIP revision to issue the section 202(a)(6) waiver for a relevant fleet in a nonattainment area.

One metric thatEPA has considered in determining whether ORVR use is widespread within agiven motor vehicle fleet considers when VOC emissions resulting from the application ofORVR controls alone equalthe VOC emissions when both stage II vapor recovery systems and ORVR controls are used, after accounting for incompatibility excess emissions. The incompatibility excess emissions factor relates tolosses in control efficiency when certain types of stage II and ORVR

are used together. One metric previously discussed by EPA for widespread use in distinct and unique situations was that widespread use will likely have been reached when thepercentage ofmotor vehicles in service with ORVR, the vehicle miles traveled (VMT) by ORVRequippedvehicles, or the gasoline dispensed to ORVR-equipped vehicles reaches 95 percent. See the 2006 Page/ Oge Memorandum, page 2. Application ofthe 95 percent criterion could lead to, for example, waiver ofstage IIvapor recovery requirements at gasoline dispensing sites thatexclusively fuel

new automobiles at assembly plants and rental cars at rental car facilities given the high percentage (essentially 100%) ofORVR-equipped vehicles associated with such facilities.

II Vapor Recovery from Refueling ofCorporate Fleets," memorandum from Stephen D. Page, Director, EPA Office ofAir Quality Planning and Standards, and Margo Tsirigotis Oge, Director, EPA Office ofTransportation andAir Quality, to Regional AirDivisionDirectors, dated November 28, 2007 ("2007 Page/Oge Memorandum"). Recently, EPA proposed criteria for determining whether ORVR isin "widespread use" for purposes of controlling motor vehicle refueling emissions throughout the motorvehicle fleet. See 76 FR41731 (July15, 2011). In EPA's July 15, 2011 action, EPA also proposed criteria that would establish June 30, 2013 as the date on with "widespread use" will occur nationally, and the date onwhich a nationwide waiver of stage IIgasoline vapor recovery systems will be effective.

EPA, after considering public comments, intends to take final action regarding the July 15, 2011 proposal to establish a nationwide date for determining when ORVR isin "widespread use" and for waiving the stage II requirement. In the proposed rule, EPA stated that itintends to provide thatindividual states may submit SIP revisions that demonstrate that ORVR widespread use has occurred (orwill occur) on a date earlier thanthe date identified in the finalrule for areas in their states, and to request thatthe EPA revise or waive the section 182(b) (3)requirement as itapplies to only those areas. See 76 FR at 41733. Consistent with EPA'sJuly 15, 2011 proposal to allow states to submit such SIP revisions, EPA istaking final action today to approve an area-specific revision to theArizona SIP and to approve a waiver for a specific portion ofthe motor vehicle fleet,namely flexible fuel vehicles refueled with E85 gasoline blend, in the Phoenix metropolitan area.

As explained in our October 3, 2011 proposed rule, the "Phoenix area," defined by theMaricopa Association of Governments' (MAGs')urban planning

area boundary (butlater revised to exclude the Gila River Indian Community at 70 FR 68339 (November 10, 2005)), was classified as a "Moderate" nonattainment area for the 1-hour ozone national ambient air quality standard (NAAQS) and later reclassified as "Serious" for the 1-hour

ozone standard. See 56 FR 56694, at 56717 (November 6, 1991) and 62 FR 60001 (November 6, 1997). Asnoted above, section 182(b)(3) ofthe Act required States with ozone nonattainment areas such as the Phoenix area to adopt and submit a SIP revision requiring gasoline dispensing facilities to install and operate stage II vapor recovery equipment, and in response, ADEQsubmitted the statutory provisions and rules establishing stage II vapor recovery requirements in the Phoenix area. EPA approved the stage II vapor recovery rules as a revision to the Arizona SIP. See 59 FR 54521 (November 1, 1994). We are taking final action today to approve a SIP revision that updates the stage IIvapor recovery requirements for the Phoenix metropolitan area and thatwaives stage II vapor recovery requirements at E85 dispensing pumps.
C.EPA'sEvaluationofSIPSubmittal andProposed Action

Relevant Statutes, Rules, Policies, and Guidance

In our October 3, 2011 proposed rule,

we explained how we evaluated the statutory provisions and administrative rules that ADEQsubmitted to update the Arizona SIP withrespect to the stage II vapor recovery program in the Phoenix metropolitan area. To summarize that information, we evaluated ADEQ's stage II vapor recovery SIP update revisionbased on the Phoenix metropolitan area's designations and classifications forthe now-revoked one-hour ozone standard andthe current eight-hour ozone standard to ensure Arizona's stage II program complies with section 182(b)(3) oftheAct (whichisdescribed in section I.B. ofthis document), to ensure thatthe requirements oftheprogram are enforceable (see CAA section 110(a)(2)), andthat the changes would not interfere with reasonable further progress or attainment ofthe NAAQS (see CAA section 110(1)).

In doing so, we relied on a number of guidance and policy documents including, but not limited to the 2006 Page/Oge Memorandum 9andthe 2007 Page/Oge Memorandum (see footnote 7 ofthis document for the full references
to these memoranda). Please see our October 3, 2011 proposed rule at page 61065 for a complete list ofthe guidance andpolicy documents upon which we relied. Compliance With CAA Section 182(b)(3) Stage IIRequirements

In our October 3, 2011 proposed rule,

we concluded thatthe statutory provisions meet the CAA section 182(b)(3) stage IIrequirements for the following reasons:

* The State isrequiring stage IIvapor recovery controls in an area that
encompasses all ofthe 1-hour ozone "serious" nonattainment area consistent

9In EPA's recent national rulemaking regarding waiver ofstage II requirements, we indicate that the Agency continues to believe the 2006 Page/Oge Memorandum is sound guidance in areas where stage II is currently being implemented, and is unaffected by the proposed national widespread use determination. See 76 FR41731, at41737 (July15, 2011). In today's action, we rely primarily on the principles and rationale set forth in the 2006 Page/ Oge Memorandum rather than those set forth in EPA's July 15, 2011 proposed rule.

### Federal Register/Vol. 77, No. 114/Wednesday, June 13, 2012/Rules and Regulations

with compliance schedules setforth in the Act and the State provides lowvolume throughput exemptions that are consistent with those allowed for in CAA section 182(b)(3); and

* The State law exemption for a "gasoline dispensing site thatis located

on amanufacturer's proving ground" in ARS 41-2132(C) does not apply to any facility within the nonattainment area, and, assuming that the fuel throughput
atthe facility to which it had applied is representative ofthe throughput ofany suchfacility thatmight locate within the nonattainment area, the exemption would be consistent with the lowvolume throughput exemptions allowed for in CAA section 182(b)(3).

Further, in our October 3, 2011 proposed rule, we evaluated whether the exclusion of "E85" fromthe State law definition ofgasoline comports with section 182(b)(3) vapor recovery requirements. Based on this evaluation,

we concluded that, given how close the ORVR-equipped percentage for flexible fuel vehicles (FFVs)in the Phoenix metropolitan area (87 percent in 2008 and climbing) is to the ORVR widespread use threshold based on comparable VOC emissions (95 percent) andbecause the change in emissions due to use ofE85 would notinterfere with attainment and RFP ofany ofthe NAAQS, ORVR isin widespread use in the FFVvehicle fleet inthe Phoenix metropolitan area for the purposes of CAA section 202(a)(6). Based on the finding of"widespread use," in our October 3, 2011 proposed rule, we proposed to waive the stage IIvapor recovery requirements for E85 dispensing pumps in the Phoenix metropolitan area under section 202(a)(6).

Third, in our October 3, 2011 proposed rule, we noted that changes in ADWM's vapor recovery rules would generally serve to clarify and improve the existing stage IIvapor recovery rules that we approved intothe SIP in 1994, andthat the only significant changes potentially affecting approvability with respect to CAA section 182(b) (3)would be the new exemptions for motor raceways, and for marine and aircraft refueling facilities. We evaluated the

new exemptions and concluded that they wouldbe acceptable under section 182(b)(3) because the fuel throughput at the one motor raceway facility to which the exemption applies is farbelow the 10,000-gallon per month lowthroughput threshold exemption allowed under CAA section 182(b)(3) andbecause the exemptions as applied
to the race cars themselves and to marine and aircraft refueling facilities do not apply to apply to "motor vehicles" as defined in CAA section 216(2) and thus are not required to be subject to stage IIvapor recovery requirements under section 182(b)(3). Please see our October 3, 2011 proposed rule at pages 61066 and 61067 for more information about our evaluation ofthe submitted statutory provisions and rules for compliance with section 182(b)(3) and for more information about our proposed waiver under section 202(a)(6). Compliance With CAA Section 110(1)

In our October 3, 2011 proposed rule,

we also evaluated the statutory provisions and administrative rules submitted by ADEQas part ofthe September 21, 2009 SIP revision under CAA section 110(1) for possible interference with any applicable requirement concerning reasonable further progress (RFP) and attainment of any ofthe NAAQS or any other applicable requirement under theAct. With respect to this SIP revision, we found that the only potentially significant adverse effect on emissions and, thus, potential for interference would stemfrom the exclusion ofE85 from the definition of "gasoline" in ARS 41-2121. The exclusion ofE85 from "gasoline" would allow for increased

use ofE85 (byFFVs) as amotor fuel in the Phoenix metropolitan area and would result in corresponding change in emissions from FFVs usingE85 relative
to the same vehicles using the specially formulated gasoline (referred to as "Arizona Cleaner Burning Gasoline," or "Arizona CBG") otherwise required.10

10EPA's guidance for Statesin developing their stage II SIPs inthe early 1990s suggested that States

use the same definition of"gasoline" as the one found in EPA's Standard ofPerformance for Bulk Gasoline Terminals at40 CFR 60.501, which includes "any petroleum distillate orpetroleum distillate/alcohol blend having a Reid vapor pressure of 27.6kilopascals orgreater which is used

as a fuel forinternal combustion engines." EPA recommended usingthis definition to most broadly reach situations in which refueling of motor vehicles results inevaporative VOC emissions that contribute to ozone nonattainment concentrations, and to avoid a narrowinterpretation ofwhat is "gasoline" that would allow significant VOC emissions from motor vehicle refueling activities in nonattainment areas to gouncontrolled.

In the existing SIP, Arizona includes a definition of "gasoline," AAC R4-31-901(5), thatis consistent with the NSPS definition. The SIPrevision that we

are approving todaywould replace the existing SIP definition of"gasoline" from Arizona's rules for gasoline vaporrecovery (AAC title 20, chapter 2, article 9)with the definition of "gasoline" from Arizona's statutes governing motor fuel (ARS section 41-2121(5)). The definition of "gasoline" in ARS section 41-2121(5) is as inclusive as the existing SIP definition in AAC R4-31-901(5), except for the explicit exclusion ofE85. Giventhat E85 can onlybe used by FFVs, andbased on our proposed "widespread use" determination with respect to the FFV fleet inthe Phoenix area that would befueled at E85 dispensing pumps, we find (Arizona CBG isa boutique fuel established to reduce vehicle emissions in the Phoenix metropolitan area and to help meet CAA air quality planning requirements.) The gasoline portion of E85 must continue to meetthe specifications for Arizona CBG pursuant to AAC R20-2-718(B).

To evaluate the change in emissions,

we reviewed a recently published study from the Journal oftheAir &Waste Management Association titled "Effect ofE85 on Tailpipe Emissions from Light-Duty Vehicles 1" (herein,the "E85 Vehicle Emissions Study"), which compiled theresults from previous published studies but also analyzed a significantly larger database compiled by EPA for vehicle certification purposes. As described in our October 3, 2011 proposed rule, though the results vary bypollutant andbetween "tier 1" (i.e., model year (MY) 1994- 2003) and "tier 2" (MY 2004-2008) vehicles, in general, the study suggests that FFVs using E85 emitfewer oxides ofnitrogen (NOx), carbon monoxide, and particulate matter (PM)relative to the same FFVs using gasoline. However, with respect to VOCs, FFVs maywell emit greater VOCs than the same FFVs using gasoline [based on the
measurement results for non-methane organic gases (NMOGs)].12

Thus, with respect to nitrogen dioxide, carbon monoxide and particulate matter, because emissions using E85 would be lower than those using CBG, we concluded that the incremental substitution ofCBGwith E85 would not interfere with RFP or

the exception forE85 from the definition of "gasoline" acceptable under CAA section 182(b)(3). Moreover, to allow for the distribution and sale of E85 in the Phoenix area, a change in the termof "gasoline" (toexclude E85) for stage II vapor recovery purposes alone would nothave sufficed. Because ofthe boutique fuelrequirements of Arizona CBGthathave been approved into the Arizona SIP, a change inthe definition of "gasoline" as a motor fuel (toexclude E85) was also
necessary.

11

Janet Yanowitz and Robert L. McCormick, "Effect ofE85 on Tailpipe Emissions from LightDuty Vehicles," Journal of the Air&Waste Management Association, Volume 59,February 2009, pages 172-182.

12

Ethanol itselfcontains no lead (Pb) orsulfur,
but the ethanol portion ofE85 does contain some Pb and sulfur due to the addition ofa denaturant, which can comprise up to 5% ofthe ethanol portion ofE85. The denaturant used by ethanol producers is typically gasoline (eitherRFG or conventional gasoline, depending on where the ethanol plant is located), which has sulfur and Pb specifications similar to those for CBG. Therefore,

a gallonofE85 would have less sulfur and Pb than

a gallonof CBG (dueto the dilutionprovided by the ethanol), and thus the emissions ofsulfur dioxide and Pb from use ofE85 inFFVs wouldbe less than the corresponding emissions from useof CBGin those vehicles. Therefore,there wouldbe

no interference with RFP orattainment ofthe Pb and sulfur dioxide NAAQS. 35283

### 35284 Federal Register/Vol. 77, No. 114/Wednesday, June 13, 2012/Rules and Regulations

attainment ofthe ambient standards for those pollutants.

We also concluded that the net effect

on ozone conditions in the Phoenix 8- hour ozone nonattainment area would be beneficial despite the potential higher VOC emission rateby E85-fueled FFVs (relative to CBG-fueled FFVs) because ofthe offsetting effect ofNON emissions reductions (fromuse ofE85 relative to Arizona CBG) andbecause of the extension of stage IIvapor recovery requirements to "Area A," an area that is larger than the area formerly designated as nonattainment for the 1- hour ozone standard andthat includes the fast-growing region westofthe City ofPhoenix. 13

On thebasis ofthe above rationale,

we determined in our October 3,2011 proposed rule that this SIP revision, including the change inthe definition of "gasoline" to exclude "E85," would not interfere with RFP and attainment for
any ofthe NAAQS. Please see our October 3, 2011 proposed rule at pages 61067 and 61068 for more information about our evaluation ofthe submitted statutory provisions and rules for compliance with section 110(1) ofthe CAA.

D.ProposedCorrectionofPrevious Rulemaking

Lastly, in our October 3, 2011 proposed rule, we described our direct final action (59 FR 54521, November 1, 1994) to approve the administrative rules adopted by ADWM to provide for the installation and operation of stage II vapor recovery systems, and inwhich

we included erroneous references and failed to identify the specific rulesbeing incorporated byreference into the SIP. To address this issue, we proposed, under section 110(k)(6) and 301(a) ofthe CAA, 14to correct our previous codification ofour approval ofthe stage II vapor recovery rules to identify the appropriate regulatory agency and to identify the specific rules that were being approved and incorporated by reference into the Arizona SIP.Please

13As submitted in 1993, ARS section 41-2132(C) established the stage II vapor recoveryrequirement within the ozone nonattainment area, but the
current version ofthis statute, which is included in today's final approval action, extends the requirement to "Area A."

14

Section 110(k)(6) ofthe CAA provides that, whenever EPA determines that the Agency's action approving, disapproving, or promulgating anyplan

or plan revision, area designation, redesignation, classification, or reclassification was in error, EPA
may inthe same manner as the approval, disapproval, or promulgation revise such action as appropriate without requiring any further submission from the State. Section 301(a) of the CAA authorizes EPA to prescribe suchregulations

as are necessaryto carry outthe Agency's functions under the CAA. see our October 3, 2011 proposed rule
at page 61068 for more information about ourproposed error correction under CAA section 110(k)(6).

II. Public Comments and EPA Responses

Our October 3, 2011 proposed rule provided a 60-day comment period. During this period, we received no comments on our proposed action.

III. FinalAction

As authorized in section 110(k)(3) of the Act and for the reasons providedin

our October 3, 2011 proposed rule and summarized herein, EPA istaking final action to approve the statutory provisions and updated administrative rules establishing certain vapor recovery requirements in the Phoenix metropolitan area as a revision to the Arizona SIP. Specifically, we are taking final action to approve Arizona Revised Statutes (ARS) sections listed in table 1 ofthis document andthe Arizona Administrative Code (AAC) sections listed in table 2ofthis document.15 Second, as authorized underCAA section 202(a)(6), we are taking final action to waive the stage IIvapor recovery requirements atE85 dispensing pumps in the Phoenix area underCAA section 202(a)(6) based on our conclusion that ORVR isin widespread

use among theFFVs thatuse such facilities.

In so doing, we conclude thatthe submitted statutory provisions and updated administrative rules meetthe related requirements for stage IIvapor recovery under CAA section 182(b)(3) and will not interfere with attainment and RFP ofany ofthe NAAQS or any other CAA applicable requirement, consistent with the requirements of CAA section 110(1). Final EPA approval ofthe updated statutory provisions and rules andincorporation ofthem into the Arizona SIP makes them federally enforceable.

Lastly, under section 110(k)(6) and 301(a) ofthe CAA, we are taking final action to correct and clarify the incorporation oftheprevious version of ADWM's vapor recovery related administrative rules into the Arizona SIP.

15 Our approval ofthe statutory provisions and administrative rules intables 1 and 2 of this document supersedes the previously approved versions ofthe administrative rules inthe Arizona SIP (i.e., AAC Article 9 ("Gasoline Vapor Control"), Rules R4-31-901 through R4-31-910, adoptedby the Arizona Department of Weights and Measures

on August 27, 1993, submitted on May 27, 1994, and approved on November 1, 1994 (59 FR 54521)). IV. Statutory andExecutive Order Reviews

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions ofthe Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role isto approve State choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that
reason, this action:

e Is not a "significant regulatory action" subject to reviewby the Office ofManagement and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993) given the limited
nature ofthis SIP revision (asto geographic scope andvehicle applicability);

* Does not impose an information collection burden under the provisions ofthe Paperwork Reduction Act (44 U.S.C. 3501 etseq.);

* Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 etseq.);

* Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub.L. 104-4);

* Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

* Is not an economically significant regulatory actionbased onhealth or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

* Is not a significant regulatory action subject to Executive Order 13211 (66FR 28355, May 22, 2001);

* Is not subject to requirements of Section 12(d) ofthe National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application ofthose requirements would be inconsistent with the CAA; and * Does not provide EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, and legally permissible methods under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does nothave tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is
not approved to apply in Indian country located in the State, and EPA notes that

### Federal Register/Vol. 77, No. 114/Wednesday, June 13, 2012/Rules and Regulations

it will not impose substantial direct
costs on tribal governments or preempt tribal law.

The Congressional Review Act, 5 U.S.C. section 801 etseq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides thatbefore a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House ofthe Congress andto the Comptroller General ofthe United States. EPA will submit a report containing this rule and otherrequired information to the U.S. Senate, the U.S. House ofRepresentatives, and the Comptroller General oftheUnited Statesprior to publication ofthe rule in the FederalRegister. A majorrule
cannot take effectuntil 60 days after it is published in the Federal Register. This action is not a "major rule" as defined by 5U.S.C. section 804(2).

Under section 307(b)(1) ofthe CAA, petitions forjudicial review ofthis action must be filed in the United States Court ofAppeals for the appropriate circuitbyAugust 13, 2012.Filing a petition for reconsideration by the Administrator ofthis final rule does not affect the finality ofthisrule for the purposes ofjudicial review nor does it extend thetime within which apetition forjudicial review maybe filed, and shall not postpone the effectiveness of suchrule or action. This action may not be challenged later in proceedings to enforce its requirements (See section 307(b)(2)).
List of Subjects in 40 CFRParts52

Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.

Dated: April 11, 2012. Lisa P.Jackson, Administrator.

Part 52, chapter I, title 40 ofthe Code ofFederal Regulations is amended as follows:

PART 52-[AMENDED]

m 1. The authority citationfor part52 continues to read as follows:

Authority: 42 U.S.C. 7401 etseq. Subpart D-Arizona

* 2.Section 52.120 is amended by revising paragraph (c)(69)(i)(A) and adding paragraph (c)(148)to read as follows: §52.120 Identificationof plan.

* * * * *

(c) * * * (69) * * * 

### (i)* * * (A)ArizonaDepartmentofWeights andMeasures.(1)Letter from Grant Woods, Attorney General, State of Arizona, toJohn U. Hays, Director, Department ofWeights andMeasures, dated August 31, 1993, and enclosed Form R102 ("Certification ofRules and Order ofRule Adoption"). (2)Arizona Administrative Code, Article 9 ("Gasoline Vapor Control"), Rules R4-31-901 through R4-31-910, adopted August 27, 1993, effective (for
state purposes) on August 31, 1993.

(148) The following plan revision was submitted on September 21, 2009 by the Governor's designee. (i)Incorporation byreference.(A) ArizonaDepartmentofWeights and Measures.(1)Arizona Revised Statutes, title 41 (State Government), chapter 15 (DepartmentofWeights and Measures),

as amended and supplemented by the general and permanent laws enacted through the FirstSpecial Session, and legislation effective January 11, 2011 of the FirstRegular Session ofthe Fiftieth Legislature (2011): (i) Article 1 (GeneralProvisions), section 41-2051 ("Definitions"), subsections (6) ("Certification"), (10) ("Department"), (11) ("Dieselfuel"), (12) ("Director"), and (13) ("E85"), amended byLaws 2008, Ch. 254, §2; (ii)Article 6 (MotorFuel), section 41- 2121 ("Definitions"), subsection (5) ("Gasoline") amended by Laws 2007, Ch. 292, § 11; and (iii)Article 7 (Gasoline Vapor Control), section 41-2131 ("Definitions"), added by Laws 1992, Ch. 299, §6; section 41-2132 ("Stage I and stage IIvapor recovery systems"), amended byLaws 2010, Ch. 181, §2; and section 41-2133 ("Compliance schedules"), amended by Laws 1999, Ch. 295, § 17. (2)Arizona Administrative Code, title 20, chapter 2, article 1 (Administration and Procedures), section R20-2-101 ("Definitions"), effective (for state purposes) on June 5, 2004. (3)Arizona Administrative Code, title 20, chapter 2, article 9 (Gasoline Vapor Control): (i) Sections R20-2-901 ("Material Incorporated by Reference"), R20-2-902 ("Exemptions"), R20-2-903 ("Equipment and Installation"), R20-2- 904 ("Application Requirements and Process for Authority to Construct Plan Approval"), R20-2-905 ("Initial Inspection and Testing"), R20-2-910 ("Annual Inspection and Testing"), R20-2-911 ("Compliance Inspections"), andR20-2-912 ("Enforcement"), effective (for state purposes) on June 5, 2004.

(ii)Sections R20-2-907 ("Operation"), R20-2-908 ("Training andPublic Education"), and R20-2-909 ("Recordkeeping and Reporting"), effective (for state purposes) on October 8, 1998.

[FRDoe. 2012-14148 Filed 6-12-12; 8:45 am]

BILLING CODE 6560-50-P

ENVIRONMENTAL PROTECTION
AGENCY

40 CFR 52

[EPA-R09-OAR-2012-0253; FRL-9682-5]
Approval ofAirQuality Implementation Plan; Arizona; Attainment Plan for 1997 8-Hour Ozone Standard

AGENCY: U.S. Environmental Protection Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is approving a state implementation plan (SIP) revision submitted by the State ofArizona on June 13, 2007, to demonstrate attainment ofthe 1997 8-hour ozone national ambient air quality standards (NAAQS) in the Phoenix-Mesa nonattainment area by June 15, 2009. This action was proposed in the Federal Register on April 11, 2012. EPA is approving the submitted SIP revision based onour determination thatit contains all ofthe SIP elements required for ozone nonattainment areas under title I, part D, subpart 1ofthe Clean Air Act (CAA) for the 1997 8-hour ozone NAAQS.
DATES: This rule is effective on July 13, 2012. ADDRESSES: EPAhas established docket number EPA-R09-OAR-2012-0253 for this action. Generally, documents in the docketfor this action are available electronically at http:// www.regulations.govorin hard copy at EPA Region IX, 75 Hawthorne Street, SanFrancisco, California. While all documents in the docket are listed at http://www.regulations.gov,some information maybe publicly available onlyat the hard copy location (e.g., copyrighted material, large maps, multivolume reports), and some may notbe available in either location (e.g., confidential business information (CBI)). To inspect the hard copy materials, please schedule an appointment during normalbusiness 35285