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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 G ins ....................... 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; FRL 9661-3]

Approval and Promulgation of

Implementation Plans; Arizona; Update

to Stage II Gasoline Vapor Recovery

Program; Change in the Definition of

"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 submitted by the

Arizona Department of Environmental

Quality. These revisions concern

amendments to the statutory and

regulatory provisions adopted by the

State of Arizona to regulate volatile

organic compound emissions from the

transfer of gasoline from storage tanks to

motor vehicle fuel tanks at gasoline

dispensing sites, i.e., stage II vapor

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

as the requirements for vapor recovery.

In approving the revisions, EPA is

taking final action to waive the statutory

stage II vapor 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 of the Arizona rules regulating

these sources and to thereby identify the

appropriate regulatory agency and

specific rules that were previously

approved and incorporated by reference

into the Arizona State Implementation

Plan.

DATES: Effective Date: This rule is

effective on July 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.gov and in hard copy

at EPA Region IX, 75 Hawthorne Street,

San Francisco, California. While all

documents in the docket are listed in

the index, some information may be

publicly available only at the hard 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 normal business

hours with the contact listed in the FOR

FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: For

further information on the revisions 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 of SIP Submittal and

Proposed Action

D. Proposed Correction of Previous

Rulemaking

II. Public Comments and EPA Responses

II. Final Action

IV. Statutory and Executive Order Reviews

I. EPA's Proposed Action

A. The State's Submittal

On October 3, 2011 (76 FR 61062), we

proposed to approve a revision to the

Arizona State Implementation Plan (SIP)

submitted to EPA on September 21,

2009 by the Arizona Department of

Environmental Quality (ADEQ). The

purpose of the SIP revision is to update

the gasoline vapor recovery program

that was originally submitted and

approved by EPA in 1994 to meet

certain applicable requirements of the

Clean Air Act, as amended in 1990

(CAA or "Act").' The specific revisions

include statutory provisions and

administrative rules regulating the

emissions of volatile organic

compounds (VOC) due to the transfer of

gasoline from storage tanks (typically

underground) to motor vehicle fuel

tanks at gasoline stations in the Phoenix

metropolitan area. The statutory

provisions and administrative rules are

contained in enclosures 3 and 4 of

ADEQ's September 21, 2009 SIP

revision submittal package.2

ADEQ's submittal represents an

update to the stage II requirements but

is comprehensive in that the submitted

'Gasoline dispensing pump 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 for Onboard Refueling Vapor

Recovery and Stage I Waiver," 76 FR 41731, at

41734 (July 15, 2011). 2

By letter dated April 12, 2011, ADEQ

substituted the statutes and rules in enclosures 3

and 4 as submitted on September 21, 2009 with

official, published versions of the same statutes and

rules in keeping with the requirements. ADEQ did

so in response to an EPA request for the official,

published versions of the statutes and rules to

comply with the requirements established by the

Office of the Federal Register for incorporating such

materials by reference into the Code of Federal

Regulations.

35279
35280 Federal Register/Vol. 77, No. 114/Wednesday, June 13, 2012/Rules and Regulations

statutory and regulatory provisions also recovery program because both submitted by ADEQ demonstrate

address general requirements related to programs now rely on that particular compliance with the procedural

stage I vapor recovery. 3 While 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 of the CAA.

State's vapor recovery program, it also ADEQ's September 21, 2009 SIP Table 1 lists the statutory provisions,

amends the State's fuels program by revision submittal contains adequate and Table 2 lists the administrative

amending the definition of the term documentation of public notice, "gasoline" to exclude "E85," 4 a change opportunity for comment, and a public rules, that were submitted by ADEQ on

that affects both the gasoline fuels hearing on the proposed SIP revision September 21, 2009 and that we are

program established for the Phoenix (see enclosure 5 of the 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 II vapor recovery systems ............................. 09/21/09

Title 41, chapter 15, article 7, section 41-2133 .......................... Com pliance 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 ........... Exem ptions .................................................................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 and Testing ......................................... 06/05/04 ...... 09/21/09

Title 20, chapter 2, article 9, section R20-2-907 ........... O peration ..................................................................

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 ........... Enforcem ent ................................................................06/05/04 ...... 09/21/09

Under Arizona law, the principal

stage II vapor recovery requirements are

found in Arizona Revised Statutes

(ARS) section 41-2132 ("Stage I and

stage II vapor recovery systems"), which

requires gasoline dispensing sites to be

equipped with a stage II vapor

collection system within "an ozone

nonattainment area designated as

moderate, serious, severe or extreme by

the United States environmental

protection agency under § 107(d) of the

3 "Stage I" vapor recovery refers to the collection

of VOC emissions expelled from underground

storage tanks at gasoline stations when being

refilled by tank trucks. The Maricopa County Air

Quality Department (MCAQD) implements its own stage I vapor recovery regulation within the

Phoenix metropolitan area, Regulation II, Rule 353

("Transfer of Gasoline into Stationary Storage

Dispensing Tanks"). EPA approved MCAQD rule

clean air act, area A or other

geographical area * * *." ARS section

41-2132(C). "Area A" is defined in ARS

section 49-541 and it includes all of the

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 of Yavapai County and

Pinal County.

ARS 41-2132 also provides an

exemption for gasoline dispensing sites

353 and incorporated it into the Arizona SIP. See

61 FR 3578 (February 1, 1996). MCAQDM's stage

I vapor recovery program and related rule are not

affected by today's proposed action.

4 E85 is a motor vehicle fuel that is a blend of as

little as 15 percent gasoline and up to 85 percent

ethanol. (In wintertime applications, the ratio may

be 30 percent gasoline and 70 percent ethanol.) E85

can only be used in specially designed FFVs, which

with a throughput of less than 10,000

gallons per month or less than 50,000

gallons per month in the case of an

independent small business marketer as

defined in section 324 of the 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 II vapor recovery requirements in

ARS 41-2132.

have mostly been manufactured since 1998. Since

these are newer vehicles, most of them are

equipped with ORVR, and every FFV built today

has ORVR. Thus, most vehicles refueling at E85

dispensing pumps are already having their

evaporative emissions captured, as in the cases of

late model rental cars refueling at rental car

facilities and newly manufactured cars being fueled

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 rely upon

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

of this document. The definition of "gasoline," which is codified in

paragraph (5) of ARS 41-2121,

specifically excludes "diesel fuel" and

"E85."

ARS section 41-2132(G) directs the

Arizona Department of Weights and

Measures (ADWM) to adopt rules that

establish standards for the installation

and operation of stage I and stage II

vapor recovery systems. In 1994, EPA

approved an earlier version of ADWM'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 I vapor recovery systems; to add

exemptions for motor raceways, motor

vehicle proving grounds, and marine

and aircraft refueling facilities; to clarify

and expand application requirements;

and to enhance compliance-related

provisions.

ADWM's rules for such systems are

now codified at title 20, chapter 2,

article 9 ("Gasoline Vapor Recovery"),

of the Arizona Administrative Code

(AAC). These rules rely upon 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 as part of

the stage II SIP revision dated

September 21, 2009-see table 2 of this

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. Regulatory Context

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, the Act specifies that

such systems be installed at any facility

that dispenses more than 10,000 gallons

of gasoline per month, or, in the case of

an independent small business marketer

(as defined in CAA section 324), any

facility that dispenses more than 50,000

gallons of gasoline per month. Based on

deadlines established in the Act, within

24 months from the effective date of the

initial area designation and

classification, states must adopt a stage

II program into their SIPs, and the

controls must be installed according to

specified deadlines following state rule

adoption. For existing facilities the

installation deadlines depend on the

date the facilities were built and the

monthly volume of gasoline dispensed.

See CAA 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 after the 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 of an activated carbon

canister installed in the vehicle into

which vapors being expelled from the

vehicle fuel tanks are forced to flow.

There the vapors are captured by the

activated carbon in the canister. When

the engine is started, the vapors are

drawn off of the activated carbon and

into the engine where they are burned

as fuel. EPA promulgated ORVR

standards on April 6, 1994, 59 FR

16262.

EPA first began the phase-in of ORVR

by requiring that 40 percent of

passenger cars manufactured in model

year 1998 be 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 also applied in all Moderate ozone

nonattainment areas. However, under section

202(a)(6) of the CAA, 42 U.S.C. 7521(a)(6), the

requirements of section 182(b)(3) no longer apply in

Moderate ozone nonattainment areas after EPA

promulgated ORVR standards on April 6, 1994, 59

FR 16262, codified at 40 CFR parts 86 (including

86.098-8), 88 and 600. Under implementation rules

issued in 2004 for the 1997 8-hour ozone standard,

EPA retained the stage I1-related requirements

under section 182(b)(3) as they applied for the 1-

hour ozone standard. 40 CFR 51.900(f)(5).

6 Section 182(b)(3)(B) has the following effective

date requirements for implementation of stage I

after the adoption date by a state of a stage I1 rule:

6 months after adoption of the state rule, for gas

stations built after the enactment date (which for

newly designated areas would be the designation

date); 1 year after adoption date, for gas stations

pumping at least 100,000 gal/month based on

average monthly sales over 2-year period before

adoption date; 2 years after adoption, for all others.

ORVR requirement for passenger cars

was increased to 100 percent by model

year 2000. Phase-in continued for other

vehicle types and ORVR has been a

requirement on virtually all new

gasoline-powered motor vehicles

(passenger cars, light trucks, and

complete 7 heavy-duty gasoline powered

vehicles under 10,000 lbs gross vehicle

weight rating (GVWR)) sold since model

year 2006. See 40 CFR part 86.

Currently, ORVR-equipped vehicles

comprise approximately 67 percent of

the in-service vehicle fleet nationwide,

and account for around 76 percent of

the vehicle miles traveled (VMT) in the

nationwide fleet. The percentage of nonORVR vehicles and the percentage of

VMT driven by those vehicles declines

each year as these older vehicles 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 highway gasoline

consumption.

The CAA anticipates that, over the

long-term, ORVR will reduce the benefit

from, and the need for, stage II vapor

recovery systems at gasoline dispensing

sites in ozone nonattainment areas, and

as noted above, section 202(a)(6) of the

CAA allows EPA to revise or waive the

application of stage 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 the motor

vehicle fleet. CAA section 202(a)(6) does

not specify which motor vehicle fleet

must be the subject of a widespread use

determination before EPA may revise or

waive the section 182(b)(3) stage II

requirement. Nor does the CAA identify

what level of ORVR use in the motor

vehicle fleet must be reached before it

is "widespread." To date, EPA has

issued two memoranda addressing

when ORVR widespread use might be

found for particular fleets.8

7 For purposes of ORVR applicability, a

"complete" vehicle means a vehicle that leaves the

primary manufacturer's control with its primary

load carrying device or container attached.

8 "Removal of Stage I Vapor Recovery in

Situations Where Widespread Use of Onboard

Vapor Recovery is Demonstrated," memorandum

from Stephen D. Page, Director, EPA Office of Air

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

35281
35282 Federal Register/Vol. 77, No. 114/Wednesday, June 13, 2012/Rules and Regulations

EPA expects the possibility of

different rates of implementation of

ORVR across different geographic

regions and among different types of

motor vehicle fleets within any region.

Given this, EPA does not believe that

CAA section 202(a)(6) must be read

narrowly to allow a widespread use

determination and waiver of the stage II

requirement for a given area or area's

fleet only if ORVR use has become

widespread through the entire United

States, or only if ORVR use has reached

a definite level in each area. Rather,

EPA believes that section 202(a)(6)

allows the Agency to apply the

widespread use criterion to either the

entire motor vehicle fleet in a State or

nonattainment area, or to special

segments of the overall fleet for which

ORVR use is shown to be sufficiently

high, and to base widespread use

determinations on differing levels of

ORVR use, as appropriate. EPA also

believes that the Act 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 that EPA has considered

in determining whether ORVR use is

widespread within a given motor

vehicle fleet considers when VOC

emissions resulting from the application

of ORVR controls alone equal the 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 to losses 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 the percentage of motor

vehicles in service with ORVR, the

vehicle miles traveled (VMT) by ORVRequipped vehicles, or the gasoline

dispensed to ORVR-equipped vehicles

reaches 95 percent. See the 2006 Page/

Oge Memorandum, page 2. Application

of the 95 percent criterion could lead to,

for example, waiver of stage II vapor

recovery requirements at gasoline

dispensing sites that exclusively fuel

new automobiles at assembly plants and

rental cars at rental car facilities given

the high percentage (essentially 100%)

of ORVR-equipped vehicles associated

with such facilities.

II Vapor Recovery from Refueling of Corporate

Fleets," memorandum from Stephen D. Page,

Director, EPA Office of Air Quality Planning and

Standards, and Margo Tsirigotis Oge, Director, EPA

Office of Transportation and Air Quality, to

Regional Air Division Directors, dated November

28, 2007 ("2007 Page/Oge Memorandum").

Recently, EPA proposed criteria for

determining whether ORVR is in

"widespread use" for purposes of

controlling motor vehicle refueling

emissions throughout the motor vehicle

fleet. See 76 FR 41731 (July 15, 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 on which a nationwide

waiver of stage II gasoline 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 is in

"widespread use" and for waiving the

stage II requirement. In the proposed

rule, EPA stated that it intends to

provide that individual states may

submit SIP revisions that demonstrate

that ORVR widespread use has occurred

(or will occur) on a date earlier than the

date identified in the final rule for areas

in their states, and to request that the

EPA revise or waive the section 182(b)

(3) requirement as it applies to only

those areas. See 76 FR at 41733.

Consistent with EPA's July 15, 2011

proposal to allow states to submit such

SIP revisions, EPA is taking final action

today to approve an area-specific

revision to the Arizona SIP and to

approve a waiver for a specific portion

of the 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 the Maricopa Association of

Governments' (MAGs') urban planning

area boundary (but later 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). As noted

above, section 182(b)(3) of the 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, ADEQ submitted 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 II vapor recovery

requirements for the Phoenix

metropolitan area and that waives stage

II vapor recovery requirements at E85

dispensing pumps.

C. EPA's Evaluation of SIP Submittal

and Proposed 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 ADEQ submitted to update

the Arizona SIP with respect 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 revision based on

the Phoenix metropolitan area's

designations and classifications for the

now-revoked one-hour ozone standard

and the current eight-hour ozone

standard to ensure Arizona's stage II

program complies with section 182(b)(3)

of the Act (which is described in section

I.B. of this document), to ensure that the

requirements of the program are

enforceable (see CAA section 110(a)(2)),

and that the changes would not interfere

with reasonable further progress or

attainment of the 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 9 and the 2007

Page/Oge Memorandum (see footnote 7

of this document for the full references

to these memoranda). Please see our

October 3, 2011 proposed rule at page

61065 for a complete list of the guidance

and policy documents upon which we

relied.

Compliance With CAA Section 182(b)(3)

Stage II Requirements

In our October 3, 2011 proposed rule,

we concluded that the statutory

provisions meet the CAA section

182(b)(3) stage II requirements for the

following reasons:

* The State is requiring stage II vapor

recovery controls in an area that

encompasses all of the 1-hour ozone "serious" nonattainment area consistent

9 In EPA's recent national rulemaking regarding

waiver of stage 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 FR 41731, at 41737 (July 15,

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 set forth 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 that is located

on a manufacturer's proving ground" in

ARS 41-2132(C) does not apply to any

facility within the nonattainment area,

and, assuming that the fuel throughput

at the facility to which it had applied is

representative of the throughput of any

such facility that might 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" from the State

law definition of gasoline 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)

and because the change in emissions

due to use of E85 would not interfere

with attainment and RFP of any of the

NAAQS, ORVR is in widespread use in

the FFV vehicle fleet in the 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 II vapor

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 II vapor recovery rules

that we approved into the SIP in 1994,

and that 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 would be acceptable under section

182(b)(3) because the fuel throughput at

the one motor raceway facility to which

the exemption applies is far below the

10,000-gallon per month lowthroughput threshold exemption

allowed under CAA section 182(b)(3)

and because 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 II vapor 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 of the

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 ADEQ as part of the

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 of the NAAQS or any other

applicable requirement under the Act.

With respect to this SIP revision, we

found that the only potentially

significant adverse effect on emissions

and, thus, potential for interference

would stem from the exclusion of E85

from the definition of "gasoline" in ARS

41-2121. The exclusion of E85 from

"gasoline" would allow for increased

use of E85 (by FFVs) as a motor fuel in

the Phoenix metropolitan area and

would result in corresponding change in

emissions from FFVs using E85 relative

to the same vehicles using the specially

formulated gasoline (referred to as

"Arizona Cleaner Burning Gasoline," or

"Arizona CBG") otherwise required. 10

10 EPA's guidance for States in developing their

stage II SIPs in the early 1990s suggested that States

use the same definition of "gasoline" as the one

found in EPA's Standard of Performance for Bulk

Gasoline Terminals at 40 CFR 60.501, which

includes "any petroleum distillate or petroleum

distillate/alcohol blend having a Reid vapor

pressure of 27.6 kilopascals or greater which is used

as a fuel for internal combustion engines." EPA

recommended using this definition to most broadly

reach situations in which refueling of motor

vehicles results in evaporative VOC emissions that

contribute to ozone nonattainment concentrations,

and to avoid a narrow interpretation of what is

"gasoline" that would allow significant VOC

emissions from motor vehicle refueling activities in

nonattainment areas to go uncontrolled.

In the existing SIP, Arizona includes a definition

of "gasoline," AAC R4-31-901(5), that is consistent

with the NSPS definition. The SIP revision that we

are approving today would replace the existing SIP

definition of "gasoline" from Arizona's rules for

gasoline vapor recovery (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 of E85. Given that

E85 can only be used by FFVs, and based on our

proposed "widespread use" determination with

respect to the FFV fleet in the Phoenix area that

would be fueled at E85 dispensing pumps, we find

(Arizona CBG is a 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 meet the

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 of the Air & Waste

Management Association titled "Effect

of E85 on Tailpipe Emissions from

Light-Duty Vehicles 1" (herein, the

"E85 Vehicle Emissions Study"), which

compiled the results 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 by pollutant and between

"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 emit fewer oxides

of nitrogen (NOx), carbon monoxide,

and particulate matter (PM) relative to

the same FFVs using gasoline. However,

with respect to VOCs, FFVs may well

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 of CBG with

E85 would not interfere with RFP or

the exception for E85 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 term of

"gasoline" (to exclude E85) for stage II vapor

recovery purposes alone would not have sufficed.

Because of the boutique fuel requirements of

Arizona CBG that have been approved into the

Arizona SIP, a change in the definition of

"gasoline" as a motor fuel (to exclude E85) was also

necessary.

11 Janet Yanowitz and Robert L. McCormick,

"Effect of E85 on Tailpipe Emissions from LightDuty Vehicles," Journal of the Air & Waste

Management Association, Volume 59, February

2009, pages 172-182.

12 Ethanol itself contains no lead (Pb) or sulfur,

but the ethanol portion of E85 does contain some

Pb and sulfur due to the addition of a denaturant,

which can comprise up to 5% of the ethanol

portion of E85. The denaturant used by ethanol

producers is typically gasoline (either RFG or

conventional gasoline, depending on where the

ethanol plant is located), which has sulfur and Pb

specifications similar to those for CBG. Therefore,

a gallon of E85 would have less sulfur and Pb than

a gallon of CBG (due to the dilution provided by

the ethanol), and thus the emissions of sulfur

dioxide and Pb from use of E85 in FFVs would be

less than the corresponding emissions from use of

CBG in those vehicles. Therefore, there would be

no interference with RFP or attainment of the Pb

and sulfur dioxide NAAQS.

35283
35284 Federal Register/Vol. 77, No. 114/Wednesday, June 13, 2012/Rules and Regulations

attainment of the 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 rate by E85-fueled

FFVs (relative to CBG-fueled FFVs)

because of the offsetting effect of NON

emissions reductions (from use of E85

relative to Arizona CBG) and because of

the extension of stage II vapor recovery

requirements to "Area A," an area that

is larger than the area formerly

designated as nonattainment for the 1-

hour ozone standard and that includes

the fast-growing region west of the City

of Phoenix. 13

On the basis of the above rationale,

we determined in our October 3, 2011

proposed rule that this SIP revision,

including the change in the definition of "gasoline" to exclude "E85," would not

interfere with RFP and attainment for

any of the NAAQS. Please see our

October 3, 2011 proposed rule at pages

61067 and 61068 for more information

about our evaluation of the submitted

statutory provisions and rules for

compliance with section 110(1) of the

CAA.

D. Proposed Correction of Previous

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 in which

we included erroneous references and

failed to identify the specific rules being

incorporated by reference into the SIP.

To address this issue, we proposed,

under section 110(k)(6) and 301(a) of the

CAA, 1 4 to correct our previous

codification of our approval of the 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

13 As submitted in 1993, ARS section 41-2132(C)

established the stage II vapor recovery requirement

within the ozone nonattainment area, but the

current version of this statute, which is included in

today's final approval action, extends the

requirement to "Area A."

14 Section 110(k)(6) of the CAA provides that,

whenever EPA determines that the Agency's action

approving, disapproving, or promulgating any plan

or plan revision, area designation, redesignation,

classification, or reclassification was in error, EPA

may in the 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 such regulations

as are necessary to carry out the Agency's functions

under the CAA.

see our October 3, 2011 proposed rule

at page 61068 for more information

about our proposed 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. Final Action

As authorized in section 110(k)(3) of

the Act and for the reasons provided in

our October 3, 2011 proposed rule and

summarized herein, EPA is taking 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

of this document and the Arizona

Administrative Code (AAC) sections

listed in table 2 of this document.15

Second, as authorized under CAA

section 202(a)(6), we are taking final

action to waive the stage II vapor

recovery requirements at E85 dispensing

pumps in the Phoenix area under CAA

section 202(a)(6) based on our

conclusion that ORVR is in widespread

use among the FFVs that use such

facilities.

In so doing, we conclude that the

submitted statutory provisions and

updated administrative rules meet the

related requirements for stage II vapor

recovery under CAA section 182(b)(3)

and will not interfere with attainment

and RFP of any of the NAAQS or any

other CAA applicable requirement,

consistent with the requirements of

CAA section 110(1). Final EPA approval

of the updated statutory provisions and

rules and incorporation of them into the

Arizona SIP makes them federally

enforceable.

Lastly, under section 110(k)(6) and

301(a) of the CAA, we are taking final

action to correct and clarify the

incorporation of the previous version of

ADWM's vapor recovery related

administrative rules into the Arizona

SIP.

15 Our approval of the statutory provisions and

administrative rules in tables 1 and 2 of this

document supersedes the previously approved

versions of the administrative rules in the Arizona

SIP (i.e., AAC Article 9 ("Gasoline Vapor Control"),

Rules R4-31-901 through R4-31-910, adopted by

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 and Executive Order

Reviews

Under the CAA, the Administrator is

required to approve a SIP submission

that complies with the provisions of the

Act and applicable Federal regulations.

42 U.S.C. 7410(k); 40 CFR 52.02(a).

Thus, in reviewing SIP submissions,

EPA's role is to 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 review by the Office

of Management and Budget under

Executive Order 12866 (58 FR 51735,

October 4, 1993) given the limited

nature of this SIP revision (as to

geographic scope and vehicle

applicability);

* Does not impose an information

collection burden under the provisions

of the Paperwork Reduction Act (44

U.S.C. 3501 et seq.);

* 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 et seq.);

* 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 action based on health 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 (66 FR

28355, May 22, 2001);

* Is not subject to requirements of

Section 12(d) of the National

Technology Transfer and Advancement

Act of 1995 (15 U.S.C. 272 note) because

application of those 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 not have

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 et seq., as added by

the Small Business Regulatory

Enforcement Fairness Act of 1996,

generally provides that before a rule

may take effect, the agency

promulgating the rule must submit a

rule report, which includes a copy of

the rule, to each House of the Congress

and to the Comptroller General of the

United States. EPA will submit a report

containing this rule and other required

information to the U.S. Senate, the U.S.

House of Representatives, and the

Comptroller General of the United

States prior to publication of the rule in

the Federal Register. A major rule

cannot take effect until 60 days after it

is published in the Federal Register.

This action is not a "major rule" as

defined by 5 U.S.C. section 804(2).

Under section 307(b)(1) of the CAA,

petitions for judicial review of this

action must be filed in the United States

Court of Appeals for the appropriate

circuit by August 13, 2012. Filing a

petition for reconsideration by the

Administrator of this final rule does not

affect the finality of this rule for the

purposes of judicial review nor does it

extend the time within which a petition

for judicial review may be filed, and

shall not postpone the effectiveness of

such rule or action. This action may not

be challenged later in proceedings to

enforce its requirements (See section

307(b)(2)).

List of Subjects in 40 CFR Parts 52

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 of the Code

of Federal Regulations is amended as

follows:

PART 52-[AMENDED]

m 1. The authority citation for part 52

continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

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 Identification of plan. * * * * *

(c) * * *

(69) * * *

(i) * * *

(A) Arizona Department of Weights

and Measures. (1) Letter from Grant

Woods, Attorney General, State of

Arizona, to John U. Hays, Director,

Department of Weights and Measures,

dated August 31, 1993, and enclosed

Form R102 ("Certification of Rules and

Order of Rule 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 by reference. (A)

Arizona Department of Weights and

Measures. (1) Arizona Revised Statutes,

title 41 (State Government), chapter 15

(Department of Weights and Measures),

as amended and supplemented by the

general and permanent laws enacted

through the First Special Session, and

legislation effective January 11, 2011 of

the First Regular Session of the Fiftieth

Legislature (2011):

(i) Article 1 (General Provisions),

section 41-2051 ("Definitions"),

subsections (6) ("Certification"), (10)

("Department"), (11) ("Diesel fuel"),

(12) ("Director"), and (13) ("E85"),

amended by Laws 2008, Ch. 254, § 2;

(ii) Article 6 (Motor Fuel), 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 II vapor recovery systems"),

amended by Laws 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"),

and R20-2-912 ("Enforcement"),

effective (for state purposes) on June 5,

2004.

(ii) Sections R20-2-907

("Operation"), R20-2-908 ("Training

and Public Education"), and R20-2-909

("Recordkeeping and Reporting"),

effective (for state purposes) on October

8, 1998.

[FR Doe. 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 of Air Quality 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 of Arizona on

June 13, 2007, to demonstrate

attainment of the 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 on our determination that it

contains all of the SIP elements required

for ozone nonattainment areas under

title I, part D, subpart 1 of the Clean Air

Act (CAA) for the 1997 8-hour ozone

NAAQS.

DATES: This rule is effective on July 13,

2012.

ADDRESSES: EPA has established docket

number EPA-R09-OAR-2012-0253 for

this action. Generally, documents in the

docket for this action are available

electronically at http://

www.regulations.gov or in hard copy at

EPA Region IX, 75 Hawthorne Street,

San Francisco, California. While all

documents in the docket are listed at

http://www.regulations.gov, some

information may be publicly available

only at the hard copy location (e.g.,

copyrighted material, large maps, multivolume reports), and some may not be

available in either location (e.g.,

confidential business information

(CBI)). To inspect the hard copy

materials, please schedule an

appointment during normal business

35285