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Citation: 77 Fed. Reg. 28772 2012

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-- The search text of this PDF is generated from uncorrected OCR text.Federal Register/Vol. 77, No. 95/Wednesday, May 16, 2012/Rules and Regulations

ENVIRONMENTAL PROTECTION
AGENCY

40 CFR Part 51 [EPA-HQ-OAR-2010-1076; FRL-9671-3]
RIN2060-AQ97

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

SUMMARY: The EPA has determined that onboard refueling vapor recovery (ORVR) technology is in widespread use throughout the motor vehicle fleet for
purposes ofcontrolling motorvehicle refueling emissions, and, therefore, by this action, the EPA is waiving the requirement for states toimplement Stage II gasoline vapor recovery systems atgasoline dispensing facilities in nonattainment areas classified as Serious and above for the ozone national ambient air quality standards (NAAQS). This finding will be effective

as noted below inthe DATES section. After the effective date ofthis notice, a state previously required to implement

a Stage IIprogram may take appropriate action to remove the program from its State Implementation Plan (SIP). Phasing out the use of Stage II systems may lead to long-term cost savings for gas station owners and operators while air quality protections are maintained. DATES: This rule is effective on May 16, 2012. ADDRESSES: The EPA has established a docketfor this rule, identified by Docket ID No. EPA-HQ-OAR-2010-1076. All documents in the docket are listed in www.regulations.gov.Although listed in the index, some information is not publicly available, i.e., confidential business information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in www.regulations.govor in hard copy at the Air and Radiation Docket and Information Center, EPA Headquarters Library, Room Number 3334 in the EPA West Building, located
at 1301 Constitution Ave. NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744. FOR FURTHER INFORMATION CONTACT: Mr. Lynn Dail, Office ofAir Quality Planning and Standards, Air Quality Policy Division, Mail code C539-01, Research Triangle Park,NC 27711, telephone (919) 541-2363; fax number: 919-541-0824; email address: dai. lynn@epa.gov.
SUPPLEMENTARY INFORMATION:
I.Purpose of Regulatory Action

Since 1990, Stage II gasoline vapor recovery systems have been a required emissions control measure in Serious, Severe, and Extreme ozone nonattainment areas. Beginning with model year 1998, ORVR equipment has been phased in for new vehicles, and has been a required control on nearly all

new highway vehicles since 2006. Over time, non-ORVR vehicles will continue
to be replaced with ORVR vehicles. Stage II and ORVR emission control systems are redundant, and the EPA has determined that emission reductions from ORVR are essentially equal to and will soon surpass the emission reductions achieved by Stage II alone. In this action, the EPA is eliminating the largely redundant Stage IIrequirement in order to ensure that refueling vapor control regulations are beneficial without being unnecessarily burdensome to American business. This action allows, but does not require,
states to discontinue Stage II vapor recovery programs.
II. Summary ofthe MajorProvisions of This Final Rule

Clean Air Act (CAA) section 202(a)(6) provides discretionary authority to the EPA Administrator to,by rule, revise or waive the section 182(b)(3) Stage II requirement for Serious, Severe and Extreme ozone nonattainment areas after the Administrator determines that ORVR is in widespread use throughout the motorvehicle fleet. Based on criteria that the EPA proposed lastyear (76 FR 41731, July 15, 2011), the EPA is determining that ORVR is in widespread

use. As ofthe effective date oftoday's action, states that are implementing mandatory Stage II programs under section 182(b)(3) ofthe CAA may submit revisions to their SIPs to remove this program.

The EPA will also be issuing nonbinding guidance on developing and submitting approvable SIP revisions.'

"Phasing Out Stage IIGasoline Refueling Vapor Recovery Programs: Guidance on Satisfying Requirements ofClean Air Act Sections 110(ff), 193, and 184(b)(2) (tentative title)." U.S. EPA Office of Air and Radiation, forthcoming. This guidance will provide the EPA's recommendations forstates to consider when developing SIPrevisions following today's rulemaking. Unlikethe final rule, the This guidance will address SIP requirements for states in the Ozone Transport Region (OTR), which are separately required under section 184(b)(2) ofthe CAA to adopt and implement control measures capable of achieving emissions reductions comparable to those achievable by Stage II. The EPA is updating its guidance for estimating what Stage II comparable emissions reductions could be, in light ofthe ORVR widespread use determination. The EPA nowexpects Stage II comparable emissions reductions tobe substantially less than what was estimated in the pastbefore ORVR use became widespread. Therefore, the EPA encourages states to consult the updated guidance before submitting a SIP revisionremoving Stage II controls.

III. Costs and Benefits

The primary purpose ofthis final rule is to promulgate a determination that ORVR is in widespread use aspermitted in section 202(a)(6) of the CAA. In this final rule, EPA is exercising the authority provided by section 202(a)(6) ofthe CAA to,by rule, revise orwaive the section 182(b)(3) Stage II requirement for Serious, Severe, and Extreme ozone nonattainment areas after the Administrator determines that ORVR is in widespread use throughout the motorvehicle fleet. This in turn gives states that were required to implement Stage II vapor recovery under section 182(b)(3) ofthe CAA the option to submit for the EPA's review and approval revised ozone SIPs that will remove this requirement. The EPA projects that during 2013-2015, gasoline-dispensing facilities (GDFs)in up to 19 states and the District of Columbia could seek to decommission and remove Stage II systems from their dispensers. There are about 30,600 GDFs with Stage II in these 20 areas. If the states submit and EPA approves SIP revisions to remove Stage II systems from these GDFs, the EPA projects savings of about $10.2 million in the first year, $40.5 millionin the second
year, and $70.9 million in the third year. Long-term savings are projected tobe about $91 million per year, compared to the current use ofStage II systems in these areas. No significant emission

guidance is notfinal agency action, andis not binding on or enforceable against any person. Consequently, it is subject to possible revision without additional rulemaking. Inaddition, the approaches suggested inthe guidance (orin any changes thereto) willnotrepresent finalagency action unless anduntil the EPA takes a final SIP approval ordisapproval action implementing those approaches. 

### 28772Federal Register/Vol. 77, No. 95/Wednesday, May 16, 2012/Rules and Regulations

increases or decreases are expected from this action.

IV. General Information

A. Does thisactionapplytome?

Entities directly affected by this action include states (typically state air pollution control agencies) and, in some cases, local governments thatdevelop air pollution control rules that apply to

areas classified as Serious and above for nonattainment ofthe ozone NAAQS. Individuals and companies that operate gasoline dispensing facilities may be indirectly affected byvirtue ofstate action in SIPs thatimplement provisions resulting from final rulemaking on this action; many of these sources are in the following
groups:

Industry group SICa NAICSb

Gasoline stations 5541 447110, 447190

aStandard Industrial Classification. bNorth American Industry Classification System.

B. WherecanIgetacopyofthis documentandotherrelated information?

In addition to being available inthe docket, an electronic copy ofthis notice will be posted at http://www.epa.govl air/ozonepollution/actions.html#impl under "recent actions."

C.How isthis noticeorganized?

The information presented in this preamble is organized as follows.

I.Purpose of Regulatory Action II. Summary ofthe Major Provisions of This Final Rule III. Costs and Benefits IV. General Information

A. Does this action apply to me? B. Where canI get a copy ofthis document

and otherrelated information? C. How is this notice organized? V. Background

A. Whatrequirements for Stage II gasoline

vapor recovery apply for ozone nonattainment areas? B. Stage II Vapor Recovery Systems C. Onboard Refueling Vapor Recovery

(ORVR) Systems D. Compatibility Between Some Vapor

Recovery Systems E. Proposed Rule to Determine Widespread

Use ofORVR VI. This Action

A. Analytical Rationale for Final Rule B. Updated Analysis ofWidespread Use C. Widespread Use Date D. Implementation ofthe Rule Provisions E. Implementation ofRule Revisions inthe

Ozone Transport Region F. Comments on OtherWaiver

Implementation Issues VII. Estimated Cost VIII. Statutory and Executive OrderReviews A. Executive Orders 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation

and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of

Children FromEnvironmental Health and Safety Risks H. Executive Order 13211: Actions That

Significantly Affect Energy Supply, Distribution, or Use I.National Technology Transfer and

Advancement Act J.Executive Order 12898: Federal Actions

To Address Environmental Justice in Minority Populations and Low-Income Populations K. Congressional Review Act IX. Statutory Authority
V. Background

A. Whatrequirements forStageII gasolinevaporrecoveryapplyin ozone nonattainment areas?
The requirements in the 1990 CAA Amendments regarding Stage II vapor recovery are contained in Title I: Provisions for Attainment and Maintenance ofNational Ambient Air Quality Standards. Under CAA section 182(b)(3), Stage II gasoline vapor recovery systems are required tobe used at higher throughput GDFs located in Serious, Severe, and Extreme nonattainment areas for ozone. 2 States

were required to adopt a Stage II program into their SIPs, and the controls

were to be installed according to specified deadlines following state rule adoption. 3 Since the early 1990s, Stage 2gasoline vapor controls have provided

2Originally, 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 the 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 in2002 for the 1997 8-hour ozone standard, the EPA retained the Stage I1-related requirements under section 182(b)(3) as they applied forthe nowrevoked 1-hour ozone standard. 40 CFR 51.900(f)(5) and 40 CFR 51.916(a).

3Thisrequirement only applies to facilities that sell more than a specified number of gallons per month and is set forth in sections 182(b)(3)(A)-(C) and 324(a)-(c). Section 182(b)(3)(B) has the following effective daterequirements for implementation ofStage I after the adoption date by a state ofa Stage I1 rule: 6 months after adoption ofthe state rule, for GDFs built after the enactment date (whichfor 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. substantial emissions reductions and have contributed toimproved air quality

over time.

B. StageIIVaporRecovery Systems

When a gasoline-powered automobile

orother vehicle isbroughtinto aGDF
to be refueled, the empty portion ofthe fuel tankon the vehicle contains gasoline vapors. When liquid gasoline is pumped into the partially empty gas tank, gasoline vapors are forced out of the tank and fill pipe asthe tankfills with liquid gasoline. Where air pollution control technology is not used, thesevapors are emitted into the ambient air. In the atmosphere, these vapors can react with sunlight, nitrogen oxides and othervolatile organic compounds to form ozone.

There are twobasic technical approaches to Stage II vapor recovery: A "balance" system, and avacuum assist system. Abalance type Stage II control system has a rubber boot around the gasoline nozzle spout that fits snuglyup to avehicle's gasoline fillpipe during refueling ofthe vehicle. With abalance system, when gasoline in the underground storage tank (UST)is pumped into a vehicle, a positive pressure differential is created between the vehicle tank and the UST. This
pressure differential draws the gasoline vapors from the vehicle fill pipethrough the rubber boot and the concentric hoses andunderground piping into the UST. This is known as abalance system because gasoline vapors fromthe vehicle tankflow into the USTtank to balance pressures. About 30 percent of Stage II GDFs nationwide use the balance type Stage II system.

The vacuum assist system is the other primary type ofStage II system currently in operation. This type of Stage II system uses avacuum pump on the vapor return line to help draw vapors from the vehicle fill pipeinto the UST. An advantage ofthis type of system is thatthe rubber boot around the nozzle can be smaller and lighter (or
not used at all) and still draw the vapors into the vapor return hose. This makes for an easier-to-handle nozzle, which is popular with customers. About 70 percent ofStage II GDFs nationwide use the vacuum assist approach.

New Stage II equipment isnormally required to achieve 95 percent control effectiveness at certification. However, studies have shown that in-use control efficiency depends on the proper installation, operation, and maintenance ofthe control equipment at the GDF. 4

4The Petroleum Equipment Institute has published recommended installation practices (PEI/ Continued 

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Damaged, missing, or improperly operating components or systems can significantly degrade the control effectiveness ofa Stage II system.

In-use effectiveness ultimately depends on the consistency of inspections, follow-up review by state agencies, and actions by operators to perform inspections and field tests and conduct maintenance in a correct and timely manner. The EPA's early guidance for Stage II discussed expected training, inspection, and testing criteria, and most states have adopted and supplemented these criteria as deemed necessary for balance andvacuum assist systems. 5 In some cases, states have strictly followed the EPA guidance but other states have required a lesser level ofinspection and enforcement efforts. Past EPA studies have estimated Stage II in-use efficiencies of92 percent with semi-annual inspections, 86 percent with annual inspections and 62 percent with minimal or less frequent state inspections.6 The in-use effectiveness of Stage II control systems may vary from
state to state, and may vary over time within any state or nonattainment area because the in-use efficiency ofStage II vapor recovery systems depends heavily

on the ongoing maintenance and oversight by GDF owners/operators and the state/local agencies.

C. Onboard Refueling VaporRecovery (ORVR) Systems

In addition to Stage IIcontrols, the 1990 CAA Amendments required another method ofcontrolling emissions from dispensing gasoline. Section 202(a)(6) ofthe CAA requires an onboard system ofcapturing vehiclerefueling emissions, commonly referred
to as an ORVR system. 7 ORVR consists ofan activated carbon canister installed

onthe vehicle into which vapors are routed from the vehicle fuel tank during refueling. There the vapors are captured by the activated carbon in the canister. To prevent the vapors from escaping through the fill pipe opening, the vehicle employs a seal inthe fill pipe which allows liquid gasoline to enter but blocks vapor escape. In mostcases,

RP300-93) and most states require inspection, testing, andevaluation before a system is commissioned for use.

5 "Enforcement Guidance for Stage 1I Vehicle Refueling Control Programs," U.S. EPA, Office of Air and Radiation, Office ofMobile Sources, December 1991.

6 "Technical Guidance-Stage I Vapor Recovery Systems forControl of Vehicle Refueling at Gasoline Dispensing Facilities Volume I:Chapters," EPA-450/3-91-022a, November 1991. This study is

a composite ofmultiple studies.

7Unlike Stage 1I,which is a requirement only in

ozone nonattainment areas, ORVR requirements apply to vehicles everywhere. More detail on ORVR is available at http://Aww.epa.govlotaqlorvr.htm. these are "liquid seals" created by the incoming liquid gasoline slightly backing near the bottom ofthe fill pipe. When the engine is started, the vapors

are purged from the activated carbon and into the engine where they are burned as fuel.

The EPA promulgated ORVR standards on April 6, 1994 (59 FR 16262). Section 202(a)(6) ofthe CAA required thatthe EPA's ORVR standards apply to light-duty vehicles manufactured beginning in the fourth model year after the model year in which the standards were promulgated, and that ORVR systems provide a minimum evaporative emission capture efficiency of95 percent.

Automobile manufacturers began installing ORVR on newpassenger cars in 1998 when 40 percent ofnew cars
were required to have ORVR. The regulation required the percentage of

new cars with ORVR increase to 80 percent in 1999 and 100percent in 2000. The regulation also required that ORVR for light duty trucks and vans (<6000pounds (lbs)gross vehicle weight rating (GVWR)) was tobe phased-in during 2001 with 40percent of such newvehicles required to have ORVR in 2001, 80 percent in 2002 and 100 percent in 2003. Newheavier lightduty trucks (6001-8500 lbs GVWR) were required tohave 40 percent with ORVR by 2004, 80 percent by 2005 and 100 percent by 2006. New trucks up to 10,000 lbs GVWR manufactured as a complete chassis were all required to have ORVR by 2006.8 Complete vehicle chassis for heavy-duty gasoline vehicles between 10,001 and 14,000 lbs GVWR (Class 3)are very similar to those between 8,501 and 10,000 lbs GVWR. For model consistency purposes, manufacturers began installing ORVR

on Class 3complete chassis in 2006 as well. So, after 2006, essentially all new gasoline-powered vehicles less than 14,000 lbs GVWR are ORVR-equipped.

ORVR does not apply to all vehicles, but those not covered by the ORVR requirement comprise a small percentage ofthe gasoline-powered highway vehicle fleet (approximately 1.5 percent ofgasoline consumption). The EPA estimates thatby the end of 2012, more than 71percent ofvehicles currently on the road will have ORVR. 9 This percentage will increase over time

as older cars and trucks are replaced by

8 TheEPA promulgated ORVR standards for light duty vehicles and trucks on April 6, 1994, 59FR 16262, codified at 40CFR parts 86 (including 86.098-8), 88 and 600.

9SeeEPA Memorandum "Onboard Refueling Vapor Recovery Widespread Use Assessment." A
copy ofthis memorandum is located inthe docket for this action EPA-HQ-OAR-2010-1076. new models. However, under the
current regulatory construct, motorcycles and heavy-duty gasoline vehicles not manufactured as a complete chassis are not required to install ORVR, so itis likely that there will be some very smallpercentage of gasoline refueling emissions not captured by ORVR controls.

Even prior to the EPA's adoption of ORVR requirements, in 1993 EPA adopted Onboard Diagnostic (OBD) System requirements for passenger cars and light trucks, and eventually did so for heavy-duty gasoline vehicles up to 14,000 lbs GVWR.1O These systems are designed to monitor the in-use performance ofvarious vehicle emission control systems and components, including protocols for finding problems in the purge systems and large and small vapor leaks in ORVR/ evaporative emission controls." OBD II systems were phased infor these vehicle classes over the period from 1994-1996 for lighter vehicles and 2005-2007 for heavy-duty gasoline vehicles, so, during the same time frame that manufacturers were implementing ORVR into their vehicles, they already had implemented or were implementing OBD II systems.

In 2000, the EPA published a report addressing the effectiveness ofOBD II control systems.' 2This study concluded that enhanced evaporative and ORVR emission control systems are durable and low emitting relative to the FTP (Federal Test Procedure) enhanced evaporative emission standards, and that OBD II evaporative emissions checks are a suitable replacement for functional evaporative emission tests in
state inspection and maintenance (I/M) programs. OBD system codes are interrogated and evaluated in a 30- vehicle emission I/M program. A recent EPA review ofOBD data gathered from I/M programs from five states 13 indicated relatively few vehicles had
any evaporative system-related OBD codes that would indicate a potential

10

See Federal Register at 58 FR 9468 published February 19, 1993, and subsequent amendments and the latest OBD regulations at 40CFR part 86.1806-05 for program requirements in various
years.

11

ORVR systems are basically a subset of evaporative emission systems because they share the same vapor lines, purge valves, purge lines, and activated carbon canister.

12

"Effectiveness ofOBD I1 Evaporative Emission Monitors-30 Vehicle Study," EPA 420-R-00-018,
October 2000.

13

SeeEPA Memorandum, "Review ofFrequency ofEvaporative System Related OBD Codes for Five State I/M Programs." A copy ofthis memorandum is located inthe docket for this actionEPA-HQOAR-2010-1076. 

### 28774Federal Register/Vol. 77, No. 95/Wednesday, May 16, 2012/Rules and Regulations

problem with the vapor management system.

Based on emissions tests ofover 1,100 in-use ORVR-equipped vehicles, EPA concluded that the average in-use efficiency ofORVR is 98 percent. The legal requirement for ORVR is 95 percent efficiency. Thus, the actual reported control achieved in practice is greater than the statutorily required level ofcontrol.

D. CompatibilityBetween Some Vapor Recovery Systems

Even though the per-vehicle vapor recovery efficiency ofORVR exceeds that ofStage II, Stage II vapor recovery systems have provided valuable reductions in ozone precursors and air toxics as ORVR hasbeen phasedinto the motorvehicle fleet. In fact, overall refueling emissions from vehicle fuel tanks are minimized byhaving both ORVR and Stage II in place, but the incremental gain from retaining Stage II decreases relatively quickly as ORVR penetration surpasses 75 percent of dispensed gasoline. Please see Table 2 below. This occurs not onlybecause of

a decreasing amount ofgasoline being dispensed to non-ORVR equipped vehicles, but also because differences in operational design characteristics between ORVR and vacuum assist Stage II systems may in some cases cause a reduction in the overall control system efficiency compared to what could have been achieved relative to the individual control efficiencies ofeither ORVR or Stage II emissions from the vehicle fuel tank. The problem arises because the ORVR canister captures the gasoline vapor emissions from the motor vehicle fuel tankrather than the vapors being drawn offby the vacuum assist Stage II system. This occurs because the fill pipe sealblocks the vapor from reaching the Stage II nozzle. Thus, instead ofdrawing vapor-laden air from the vehicle fuel tank into the underground storage tank (UST), the vacuum pump ofthe Stage II system draws mostly fresh airinto the UST. This fresh air causes gasoline in the UST to evaporate insidethe UST and creates an internal increase in UST pressure. As the proportion ofORVR vehicles increases, the amount offresh air,void ofgasoline vapors, pumped into the UST also increases. Even with pressure/vacuum valves in place this eventually leads to gasoline vapors being forced out ofthe USTvent pipe into the ambient air. These newUST vent-stack emissions detract from the overall recovery efficiency at the GDF. As discussed in the proposed rule, the level ofthese UST vent stack emissions varies based on several factors but can result in a net 1to 10 percent decrease in overall control efficiency ofvehicle fuel tankemissions at any given GDF. 14
The decrease in efficiency varies depending on the vacuum assist technology design (includingthe use of

a mini-boot for the nozzle and the ratio ofvolume of air drawn into the UST compared tothe volume of gasoline dispensed (A/L) ratio), the gasoline Reid vapor pressure, the air and gasoline temperatures, andthe fraction of throughput dispensed to ORVR vehicles. There are various technologies that address these USTvent-stack emissions and can extend the utility of Stage II to further minimize the overall control ofgasoline vapor emissions at the GDF. These technologies include nozzles that sense when fresh air is being drawn into the UST and stop or reduce the air flow. These ORVRcompatible nozzles are now required in California and Texas. Another solution is the addition ofprocessors on the UST vent pipe that capture or destroy the gasoline vapor emissions from the vent pipe. Anumber ofthese systems were presented in comments on the proposed rule. While they may have merit, installing these technologies adds to the expense ofthe control systems.

E.Proposed Rule ToDetermine WidespreadUse ofORVR

Section 202(a)(6) ofthe CAA provides discretionary authority to the EPA Administrator to, by rule, revise or waive the section 182(b)(3) Stage II

14 SeeEPA Memorandum "Onboard Refueling Vapor Recovery Widespread Use Assessment." A copy ofthis memorandum is located inthe docket for this action EPA-HQ-OAR-2010-1076. Thelevel ofthese UST vent stack emissions varies based on several factors; EPA estimates a 5.4 to 6.4 percentage point decrease in Stage I control efficiency inthe 2011-2015 time frame atGDFs employing non-ORVR compatible vacuum assist Stage I nozzles. The decrease inefficiency varies depending on the vacuum assist technology design (including the useof a mini-boot forthe nozzle and the ratio ofvolume of air drawn into the UST compared to the volume ofgasoline dispensed (A/ L) ratio), the gasoline Reid vapor pressure, the air and gasoline temperatures, andthe fraction of throughput dispensed to ORVR vehicles. The values will increase over time as the fraction oftotal gasoline dispensed to ORVR vehicles at Stage I GDFs increases. requirement for Serious, Severe, and Extreme ozone nonattainment areas after the Administrator determines that ORVR is in widespread use throughout the motorvehicle fleet. The percentage ofnon-ORVR vehicles and the percentage ofgasoline dispensed to those vehicles grow smaller each year as these older vehicles wear out and are replaced by new ORVR-equipped models. Given the predictable nature of this trend, the EPA proposed a date for ORVR widespread use.

In the Notice ofProposed Rulemaking (NPRM) (76 FR 41731, July 15, 2011), the EPA proposed that ORVR widespread use will occur at the midpoint in the 2013 calendar year, relying upon certain criteria outlined in the proposed rule. This date was also proposed as the effective date for the waiver ofthe CAA section 182(b)(3) Stage IIrequirements for Serious, Severe and Extreme ozone nonattainment areas.

The EPA used two basic approaches in determining when ORVR would be in widespread use in the motor vehicle fleet. Both approaches focused on the penetration ofORVR-equipped vehicles in the gasoline-powered highway motor vehicle fleet. The first proposed approach focused on the volume of gasoline thatis dispensed into vehicles equipped with ORVR, and compared the emissions reductions achieved by ORVR alone to the reductions that can be achieved by Stage II controls alone. The second approach focused on the fraction ofhighway motor gasoline dispensed to ORVR-equipped vehicles.

In the proposal, the EPA included Table 1 (republishedbelow). This work

was based on outputs from EPA's MOVES 2010 motor vehicle emissions model, which showed information related to the penetration of ORVR in the national motor vehicle fleet projected to 2020. These model outputs have been updated for the final rule to be consistent with the latest public release ofthe model (MOVES 2010a) since that isthe version ofthe model
states would use in any future inventory
assessment workrelated to refueling emissions control. Overall, ORVR efficiency was shown in column 5of Table 1 and was determined by multiplying the fraction ofgasoline dispensed into ORVR-equipped vehicles by ORVR's 98 percent in-use control efficiency. 

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TABLE 1 -PROJECTED PENETRATION OF 

### ORVR IN THE NATIONAL VEHICLE FLEET BY YEAR-BASED ON 

### MOVES 2010

Calendar year Vehicle population VMT Gasoline ORVR Efficiency percentage Percentage dispensed percentage percentage pretg

1 2 3 4 5

2006

......................................................................................... 39.5 48.7 46.2 45.3 2007

......................................................................................... 45.3 54.9 52.5 51.5 2008

......................................................................................... 50.1 60.0 57.6 56.4 2009

......................................................................................... 54.3 64.5 62.1 60.9 2010

......................................................................................... 59.0 69.3 66.9 65.6 2011

......................................................................................... 63.6 73.9 71.5 70.1 2012

......................................................................................... 67.9 78.0 75.6 74.1 2013

......................................................................................... 71.7 81.6 79.3 77.7 2014

......................................................................................... 75.2 84.6 82.6 80.9 2015

......................................................................................... 78.4 87.2 85.3 83.6 2016

......................................................................................... 81.2 89.4 87.7 85.9 2017

......................................................................................... 83.6 91.2 89.7 87.9 2018

......................................................................................... 85.6 92.7 91.3 89.5 2019

......................................................................................... 87.5 93.9 92.7 90.8 2020

......................................................................................... 89.0 94.9 93.9 92.0

See EPA Memorandum "Onboard Refueling Vapor Recovery Widespread Use Assessment" 1076) addressing details on issues related to values in this table.

Note: Inthis table, the columns have the following meaning. 1. Calendar year that corresponds to the percentages in the row associated with the year. 2. Percentage of the gasoline-powered highway vehiclefleet that have ORVR. 3. Percentage of vehicle miles traveled (VMT) byvehicles equipped with ORVR. 4. Amount of gasoline dispensed into ORVR-equipped vehicles as a percentage of all gasoline 5. Percentage from thesame row in column 4 multiplied by 0.98.

In the proposal, the EPA estimated that ORVR would need to achieve in-use emission reductions of about 77.4 percent to be equivalent to the amount ofcontrol Stage II alone would achieve. This estimate was based on the in-use control efficiency of Stage II systems and exemptions for Stage II forlower throughput GDFs. In the NPRM, the EPA assumed that in areas where basic Stage II systems are used the control efficiency of Stage II gasoline vapor control systems is 86 percent. The use ofthisvalue depends on the assumption that daily and annual inspections, periodic testing, and appropriate maintenance are conducted in a correct andtimely manner. In addressing comments, we have stated thatthis efficiency could be nearer to 60% if inspections testing and maintenance are not conducted and there isminimal enforcement.I5

In the NPRM, the EPA estimated that the percentage ofgasoline dispensed in

an area that iscovered by Stage II controls is 90 percent. Multiplying the estimated efficiency ofStage II systems (86 percent)by the estimated fraction of gasoline dispensed in nonattainment

areas from Stage II-equipped gasoline pumps yielded an estimate ofthe areawide control efficiency of Stage II

15See, "Determination ofWidespread Use of Onboard Refueling Vapor Recovery (ORVR) and Waiver ofStage I Vapor Recovery Requirements: Summary ofPublic Comments and Responses." March 2012. Document contained in docket EPAHQ-OAR-2010-1076. programs of77.4 percent (0.90 x 0.86 0.774 or 77.4 percent) for emissions displaced fromvehicle fuel tanks. 1617 Table 1 indicated this level of ORVR control efficiency is expected to be achieved during calendar year 2013.

In the second approach for estimating when ORVR is in widespread use, we also observed from Table 1 that bythe end of calendar year 2012 more than 75 percent ofgasoline willbe dispensed into ORVR-equipped vehicles. As discussed in the NPRM, the EPA believed that this percentage of ORVR
coverage (>75 percent) is substantial enough to inherently be viewed as 'widespread" under any ordinary

16See section 4.4.3 (especially Figure 4-14 and Table 4-4) in "Technical Guidance-Stage I Vapor Recovery Systems for Control ofVehicle Refueling Emissions atGasoline Dispensing Facilities, Volume I: Chapters," EPA-450/3-91-022a, November 1991. A copy of this document is located in the docket for this actionEPA-HQ-OAR-2010- 1076. This is based on annual enforcement inspections and on allowable exemptions of 10,000/ 50,000 gallonsper month as described in section 324(a) ofthe CAA. The EPA recognizes that these
two values vary bystate and that in some cases actual in-useefficiencies, prescribed exemption levels, orboth maybeeither higher orlower.

17AP-42, TheEPA's emission factors document, identifies three sources ofrefueling emissions: Displacement, spillage, andbreathing losses. In the EPA Memorandum "Onboard Refueling Vapor Recovery Widespread Use Assessment" (available in the public docket), the EPA determined that for separate StageII and ORVR refueling events, spillage and breathing loss emission rates are similar. Thus, this analysis focuses on differences in controlled displacement emissions. Compatibility effects related to ORVR and Stage II

vacuum assist systems are addressed separately. in the docket (number EPA-HQ-OAR-2010-

dispensed to highway motor vehicles.

understanding ofthat term. Furthermore, in Table 1, thepercentage ofVMTby ORVR-equipped vehicles (column 3) and the amount ofgasoline dispensed into ORVR-equipped vehicles (column4) reached or exceeded 75 percent between the end ofyear 2011 and end of2012. The EPAbelieved this provided further support for establishing a widespread use date after the end ofcalendar year 2012. Based on the dates derived from these twobasic approaches, the EPA proposed to determine that ORVR will be in widespread use byJune 30, 2013, or the midpoint ofcalendar year 2013.

VI. This Action
A. AnalyticalRationale forFinalRule

Section 202(a)(6) ofthe CAA provides discretionary authority tothe EPA Administrator to, by rule, revise or waive the section 182(b)(3) Stage II requirement after the Administrator determines thatORVR is in widespread

use throughout the motorvehicle fleet. As discussed in the NPRM, the EPA has broad discretion in how itdefines widespread use and the manner in which any final determination is implemented. In our review ofthe public comments received on the proposal, no commenter indicated that

a widespread use determination was inappropriate or took issue with the EPA's two-pronged analytical approach. We have integrated responses to many comments throughout the preamble to 

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this final rule. Amore detailed set of
responses is in a document titled, "Determination ofWidespread Use of Onboard Refueling Vapor Recovery (ORVR) and Waiver of Stage II Vapor Recovery, Summary ofPublic Comments and Responses" that canbe found in the docket, EPA-HQ-OAR2010-1076.

The analytical approaches used bythe EPA to determine the widespread use date are influenced by several key input parameters that affect the estimates of the emission reduction benefits ofStage II alone versus thebenefits ofORVR alone andthe phase-in ofORVRequippedvehicles. We received several
comments on the assumptions and parameters used by the EPA in the NPRM, and in some cases we have updated the information used in calculations that support the final rule,

as discussed in the following paragraphs.

1.ORVR Parameters

* ORVR efficiency.The EPA used an in-use control efficiency ofORVR of98 percent in the proposal. This was based

onthe testing of1,160 vehicles drawn from the field. EPA has updated its analysis to include an additional 478 refueling emission test results for ORVR-equipped vehicles that were conducted in calendar years 2010 and 2011. The data set, which nowincludes

over 1,600 vehicle tests for vehicles from model years 2000-2010 with mileages ranging from 10,000 to over 100,000, continues to support the conclusion that the 98 percent in-use efficiency values remain appropriate.18

* Modelingprograminputs.The NPRM relied on EPA's MOVES 2010 model for estimating ORVR vehicle fleet penetration, VMTby ORVR vehicles, and gallons ofgasoline dispensed to ORVR vehicles. Since the development ofthe NPRM, the EPA has publicly released MOVES 2010a. The updated model incorporates many improvements. Those relevant here include updates in ORVR vehicle sales, sales projections, scrappage, fleet mix, annual VMT, and fuel efficiency. The EPA believes thatthe modeling undertaken to determine the widespread

use date for the final rule should employ the EPA's latest MOVES modeling programbecause itcontains updated information thatbears on the subject ofthis rulemaking, and because the EPA expects states to alsouse itin any state-specific demonstrations

18See theEPA memorandum "Updated ORVR InUse Efficiency." A copy ofthis memorandum is located inthe docket for this action EPA-HQ-OAR2010-1076. supporting future SIP revisions, including revisions that seek to remove Stage II programs.
2. Stage IIParameters

* StageH1efficiency.The EPA used an in-use control efficiency of 86 percent for Stage II in the proposal. As discussed above, Stage II control efficiency depends on inspection, testing, and maintenance by GDF owner/operators, and inspection and enforcement by state/local agencies. Typical values range from 62 percent to 86 percent. The public comments referred the EPA to additional reported information directly related to in-use effectiveness ofStage II vapor recovery. 19The reports indicate that for balance and vacuum-assist type Stage II systems in use in many states today,the in-use effectiveness ofStage II is typically near 70 percent. Nonetheless, the EPA has elected to retain the use of

an 86 percent efficiency value in the analyses supporting the final rule. This isbecause many state programs have included the maintenance and inspection provisions recommended by EPA to achieve this level ofefficiency in their initial SIPs that originally incorporated Stage II controls.20 Current in-use efficiency values may wellbe lower based on the performance ofthe Stage II technology itselfor for other

reasons related tomaintenance and enforcement. We are not rejecting the additional information from
commenters orthe possibility that Stage II efficiency maybe lowerin some states

or nonattainment areas. However, the EPAbelieves these issues are best examined in the SIP review process. If real in-use efficiency across all existing Stage II programs is, in fact, lower than 86 percent, the EPA's final analysis overestimates the length of time required for emissions reductions from ORVR alone to eclipse the reductions that can be achieved by Stage II alone. * StageIIexemption rate.In sections 182(b)(3) and 324 ofthe CAA, Congress permitted exemptions from Stage II controls for GDFs oflessthan 10,000 gallons/month (privates) and 50,000 gallons/month (independent small

19See "Draft Vapor Recovery Test Report," April 1999 byCARB and CAPCOA (nowcleared for public use), and "Performance ofBalance Vapor Recovery Systems at GasolineDispensing Facilities", prepared by the San Diego Air Pollution Control District, May 18, 2000. Both reports are available inthe public docket.

20The EPAreport, "Enforcement Guidance for Stage II Vehicle Refueling Control Programs," U.S. EPA, Office of Airand Radiation, Office ofMobile Sources, December 1991, provides basic EPA guidance on what a state SIP and accompanying regulations should include to achieve high efficiency. business marketers). The EPA analysis indicated thatthese GDF throughput values exempted about 10 percent of annual throughput in any given area. Some states included more strict exemption rates, most commonly 10,000 gallons per month (3percent of throughput) for both privates and independent small business marketers. A few other states' exemption provisions used values that fellwithin

oroutside this range. 2' Ofthe 21 states andthe District ofColumbia with areas classified as Serious, Severe, or Extreme for ozone and/or within the Ozone Transport Region, the plurality incorporated exemption provisions in their state regulations, which exempted about 10 percent ofthroughput.22 Therefore, we believe itremains reasonable touse that value within this analysis.

* Compatibility factor forvacuum assistStage11systems. The EPA discussed the compatibility factor at length in the NPRM and provided relevant materials inthe docket. Several
commenters asked that the EPA provide guidance on how the compatibility factor shouldbe incorporated into any similar analysis conducted by a state for purposes offuture SIP revisions involving Stage IIprograms. The magnitude ofthe compatibility factor for any given area varies depending on ORVR penetration, fraction ofvacuum assist nozzles relative tobalance nozzles, and excess A/L forvacuum assist nozzles. Two states have adopted

measures to reduce this effect through the use ofORVR-compatible nozzles and one state prohibits vacuum assist nozzles completely. Due tothese significant variables, the EPA is electing
not to include the compatibility factor in the widespread use date determination analysis, but will provide the guidance requested by the
commenters for use in making future SIP revisions. To the extent that compatibility emissions across all existing Stage II programs as a whole are significant, the EPA's final analysis overestimates the length oftime required for emissions reductions from ORVR alone to eclipse the reductions that canbe achieved by Stage II alone.

B. Updated Analysis ofWidespreadUse
As discussed previously, the EPA has
used two approaches for determining

21There are a few states that limit Stage II exemptions to only GDFs with less than 10,000 gpm throughput, which would exempt aboutthree to five percent ofarea-wide throughput.

22See theEPA memorandum "Summary ofStage
II Exemption Program Values." A copy ofthis memorandum is located inthe docket for this action inEPA-HQ-OAR-2010-1076. 

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when ORVR isin widespread use on a nationwide basis. After reviewing our methodology and reviewing the related
comments on the NPRM, we are retaining three of the fourbasic analytical input parameters and updating one. The in-use ORVR efficiency, the in-use Stage II efficiency, and the Stage II exemption rate parameters are the same as in the NPRM. However, we have updated the modeling program inputs as discussed previously, andthe results are reflected in Table 2.

TABLE 2-PROJECTED PENETRATION OF 

### ORVR IN THE NATIONAL VEHICLE FLEET BY YEAR-BASED ON 

### MOVES 2010(a)

Vehicle Gasoline ORVR End of calendar year population VMT dispensed Efficiency percentage percentage percentage

1 2 3 4 5

2006

......................................................................................... 42.6 51.2 49 .2 48.2 2007

......................................................................................... 48.4 57.3 55 .5 54.4 2008

......................................................................................... 53.3 62.3 60 .5 59.2 2009

......................................................................................... 57.7 66.8 64 .8 63.5 2010

......................................................................................... 62.4 71.6 69 .5 68.1 2011

......................................................................................... 67.1 76.0 73 .9 72.4 2012

......................................................................................... 71.4 80.0 77 .7 76.1 2013

......................................................................................... 75.3 83.4 81.0 79.4 2014

......................................................................................... 78.7 86.3 84 .0 82.3 2015

......................................................................................... 81.8 88.8 86 .5 84.8 2016

......................................................................................... 84.5 90.9 88 .6 86.8 2017

......................................................................................... 86.8 92.5 90 .3 88.5 2018

......................................................................................... 88.8 93.9 91.9 90.0 2019

......................................................................................... 90.5 95.0 93 .2 91.3 2020

......................................................................................... 92.0 95.9 94 .3 92.4

See EPA Memorandum "Onboard Refueling Vapor Recovery Widespread Use Assessment" in the docket (number EPA-HQ-OAR-2010- 1076) addressing details on issues related to values in this table.

Note: Inthis table, the columns have the following meaning. 1. Calendar year that corresponds to the percentages in the row associated with the year. 2. Percentage of the gasoline-powered highway vehiclefleet that have ORVR. 3. Percentage of vehicle miles traveled (VMT) byvehicles equipped with ORVR. 4. Amount of gasoline dispensed into ORVR-equipped vehicles as a percentage of all gasoline dispensed to highway motor vehicles. 5. Percentage from thesame row in column 4 multiplied by 0.98.

The results in Table 2 are applied in the context ofthe twobasic analytical approaches used in the NPRM for supporting the final date associated with the EPA's widespread use determination. First, using the analysis based onequal reductions for Stage II and ORVR, the 77.4 percent in-use emission reduction efficiency for ORVR will occur in May 2013 (See column 5 ofTable 2). Second, 75 percent of gasoline willbe dispensed to ORVRequippedvehicles by April 2012 (See column 4 ofTable 2).

C. WidespreadUseDate

The updated analysis indicates that the twobenchmarks will occur about a year apart, and that one benchmark of April 2012 has already passed.At the time ofthe NPRM, both ofthe benchmark dates for the ORVR widespread use determination were in the future, many months after the EPA's expected final action. Thus,given the basic merits ofboth approaches, the EPA believed it was reasonable to propose a date between the dates associated with the two analytical approaches.

The EPA's updated analysis presents

a somewhat different picture. The April 2012benchmark date has already passed, and the May 2013benchmark date is less than 1year away. We believe it isreasonable forthe EPA Administrator to determine that ORVR is in widespread use inthe motor vehicle fleet as ofthe date this final action is published in the Federal Register because this final rule isbeing promulgated within the window bounded by the two benchmark dates derived from the updated analyses.

As discussed previously in this notice and in the NPRM, the EPA has discretion in setting the widespread use date. Itis evident from the public
comments on the NPRM from states and members oftheregulated industry, and from recent state actions, that there is a desire to curtail Stage II installations at newly constructed GDFs, and to initiate

an orderly phase-out of Stage II controls
at existing GDFs.23 Since one ofthe two analytical benchmark dates (April 2012)

2 3For example, in November 2011, New Hampshire put new regulations inplace that eliminate the need for new GDFs to install Stage LI, allows current GDFs with Stage I to decommission the systems, andrequires all systems to be decommissioned by December 22, 2015. In May of 2011, NewYork issued an enforcement discretion directive which curtailed the need for new stations
to install StageII and permitted current installations to be decommissioned. Theseactions remain underreview ofEPA. has passed, and we expect in mostcases the second analytical benchmark date (May 2013) will have passed by the time the EPA is able to complete approvals of SIP revisions removing Stage II programs and pass any revised regulations, then in response to comments asking us to expedite the ORVR widespread use finding, the EPA Administrator is determining that ORVR is in widespread use in the motor vehicle fleet as of May 16, 2012. Accordingly, as ofMay 16, 2012 the requirement to implement a Stage II emissions control program under section 182(b)(3) ofthe CAA is waived.

D. ImplementationoftheRule Provisions

In this final action, the ORVR widespread use determination and waiver ofthe section 182(b)(3) requirement applies tothe entire country. This includes areas that are
now classified as Serious or above for

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

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

areas sooner than the general, national date. Such a provision is nolonger 

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needed because today's action provides for anationwide determination of widespread use effective onMay 16, 2012.

As stated in this final action and as pointed out by several commenters, the ORVR widespread use determination and section 182(b)(3) waiver determination does not obligate states to

remove any existing Stage II vapor recovery requirements. Itis possible that

a state would determine itbeneficial to continue implementation ofa Stage II program. For example, in an area where ORVR-equipped fleet penetration is considerably less than the national average, or where Stage II exemptions

are significantly more restrictive than the national assumptions used in this analysis, a state may determine that it would not be appropriate to modify its program immediately, but that itwould be more appropriate to do so at a later date. In assessing whether and howto phase out Stage IIrequirements, states

are encouraged to review, and asneeded revise the area-specific assumptions about taking into consideration their inspection and enforcement resource commitments as well as ORVR/vacuumassist Stage II compatibility.

A state that choosesto remove the program must submit a SIP revision requesting EPA to approve such action andprovide, as appropriate, a demonstration thatthe SIP revision is consistent with CAA section 110(i), and in some cases consistent with CAA section 193. The EPA will provide additional guidance on conducting assessments to support Stage Il-related SIP revisions.24The EPA encourages states to review this guidance and consult with the EPA Regional Offices

on developing SIP revisions seeking EPA approval for phasing out existing Stage IIprograms in a manner that

ensures air quality protections are maintained.

Section 110(1) precludes the Administrator from approving a SIP revision ifitwould interfere with applicable CAA requirements (including,but not limited to, attainment and maintenance ofthe

ozone NAAQS and achieving reasonable further progress). A state may demonstrate through analysis that removing a Stage IIprogram in an area

as ofa specific date will not result in an emissions increase in the area, or that the small and ever-declining increase is offsetby other simultaneous changes in the implementation plan. However, a

24"Phasing Out Stage I Gasoline Refueling Vapor Recovery Programs: Guidance on Satisfying Requirements of Clean AirAct Sections 110(1), 193, and 184(b)(2) (tentative title)." U.S. EPA Office of Air and Radiation, forthcoming. state may find thatby removing Stage II requirements, they are reducing the overall level ofemissions reductions they have previously applied toward meeting CAA rate ofprogress (ROP) or reasonable further progress (RFP) requirements, or demonstrating attainment. Ifso, the state should explain howremoving Stage II controls in the area would not interfere with attaining and maintaining the ozone NAAQS in the area. In such circumstances, it ispossible that additional emissions reductions from other measures may be needed to offset the removal ofStage II.

IfEPA has approved a state's adoption of Stage II requirements into a SIP before November 15, 1990, section 193 would also apply. Section 193provides that removal ofan emissions control program cannot result in any emissions increase unless the increase is offset. Section 193 only applies ifan area is nonattainment for the standard. State and local agencies should also consider any transportation conformity impacts related to removing Stage II if emissions reductions from Stage II are included in a SIP-approved on-road motor vehicle emissions budget. States may need to adjust conformity budgets

or the components ofthebudget if removing Stage II requirements would alter expected air quality benefits.

In previous memoranda, the EPA provided guidance to states on removing Stage II at refueling facilities dedicated to certain segments ofthe motor vehicle fleet (e.g., new automobile assembly plants, rental car facilities, E85 dispensing pumps, and corporate fleet facilities). In these specific cases where all or nearly all ofthe vehicles being refueled are ORVR-equipped, the EPA could conservatively conclude that widespread use ofORVR had occurred in these fleets.25

E.ImplementationofRuleProvisionsin the Ozone TransportRegion

States and the District ofColumbia in the OTR in the northeastern U.S. are also subject to a separate Stage Il-related requirement. Under section 184(b)(2) of the CAA (42 U.S.C. 7511c(b)(2)), all

areas in the OTR, both attainment and nonattainment areas, must implement control measures capable of achieving emissions reductions comparable to those achievable through Stage II controls. The CAA does not contain specific provisions giving authority to the EPA Administrator to waive this

25 "Removal of Stage I Vapor Recovery in Situation where Widespread Use ofOnboard Refueling Vapor Recovery is Demonstrated," from Stephen D. Page and Margo Tsirigotis Oge, EPA, December 12, 2006. independent requirement. The section 184(b)(2) requirement does not impose Stage IIperse,but ratheris a requirement that OTR states achieve an amount ofemissions reductions comparable to the amount that Stage II would achieve. Moreover, section 202(a)(6), in allowing for a waiver ofthe section 182(b)(3) Stage II requirement for nonattainment areas, does not refer
to the independent section 184(b)(2) requirements. Therefore, the section 184(b)(2) Stage Il-related requirement for the OTR will continue to remain in place even after the ORVR widespread

use determination and section 182(b)(3) waiver effective date.

In the mid-1990s, the EPA issued guidance on estimating what levels of emissions reductions would be "comparable" tothose reductions achievedby Stage 11.26 In response, most OTR states simply adopted Stage II programs rather than identify other

measures that got the same degree of emissions reductions. Given the continued penetration ofORVRequippedvehicles into the overall vehicle fleet, Stage Il-comparable emissions are significantly lessthan in the past, and continue to decline. Accordingly, the EPA is issuing updated guidance on determining "comparable measures." States in the OTR should refer to that guidance ifpreparing a SIP revision to remove Stage IIprograms in

areas ofthe OTR.27

Commenters on the NPRM urgedthe EPA to revise its previous interpretation of section 184(b)(2) to permit ORVR to be recognized as a Stage II comparable emission reduction measure. Thisissue is not within the scope ofthis rulemaking, and EPS is not takingfinal agency action implementing section 184(b)(2) or an interpretation thereof. However, for informational purposes,

we point out that simply treating the ORVR requirements under section 202(a)(6) as a comparable measure that

an OTR SIP must additionally contain would arguably render the 184(b)(2) requirement a nullity, which couldbe

an impermissible statutory interpretation. Ifcommenters wish to further address this issue, we ask that they raise their concerns in any future SIP actions under section 184(b)(2) regarding OTR states thatmay affect them. In addition, we note thatthe expected level ofemissions reductions

26"Stage I Comparability Study for the Northeast
Ozone Transport Region," (EPA-452/R-94-011; January 1995).

27"Phasing Out Stage I1 Gasoline Refueling Vapor Recovery Programs: Guidance on Satisfying Requirements of Clean AirAct Sections 110(1), 193, and 184(b)(2) (tentative title)." U.S. EPA Office of Air and Radiation, forthcoming. 

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that Stage II programs can obtain has changed significantly in the past 15
years with ORVR-equipped vehicles phasing in at the rate of3-4 percent of the fleet each calendar year. Therefore, the EPA is issuing updated guidance on estimating the emissions reductions needed to be comparable to those achievable through Stage II controls. Theoretically, comparable measures could in some areas mean no additional control beyond ORVR is required if Stage II is achieving no additional emission reduction benefit in the area,

orhas reached apoint ofproviding only

a declining deminimisbenefit.

F. Commentson OtherWaiver ImplementationIssues

Numerous commenters on the NPRM urged the EPA to adopt provisions in the final rule that would exempt new gasoline dispensing facilities with construction occurring between the final rule publication and the effective Stage II waiver date from installing Stage II equipment. The timing issue is now largely moot since widespread use is deemed to have occurred on the effective date ofthis action. However, under the CAA, states adopt statespecific or area-specific rules, which are then submitted to the EPA for approval into the SIP. These rules are independently enforceable under state law, and also become federally enforceable when the EPA approves them into the SIP. The EPA cannot unilaterally change legally-adopted state statutes or rules or otherwise revise an approved SIP that was not erroneously approved. The EPA's only authority to establish requirements that would apply in lieu ofapproved SIPs is its authority under CAA section 110(c) topromulgate

aFederal Implementation Plan (FIP). To trigger FIP authority, the EPA must first determine that a state has failed to submita required SIP or that the state's SIP mustbe disapproved. The circumstances ofthis ORVR widespread

use finding and waiver ofthe section 182(b)(3) Stage II requirement to do not present either ofthose situations. According to requirements established by the CAA thatare applicable here,
states will need to develop and submit SIP revisions to the EPA in order to change or eliminate SIP-approved state rules that set forth the compliance dates for newly constructed GDFs.

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

areas after the widespread use date, without requiring SIP revisions from
states.While the EPA has discretion to determine the widespread use date, the EPA cannot simply nullify states' rules that are binding and enforceable under
state law. In order to change the federal enforceability ofSIPs, states must go through the SIP revision process, and the EPA can approve the SIP revision only ifthe provisions of section 110(l) and any other applicable requirements, such as the requirements ofsection 193 and the comparable measures requirement for OTR states, are satisfied. Today's final rule takes no action in implementing CAA sections 110(l), 193, or 184(b)(2), and any future final actions regarding "comparable measures" SIPs willbe fact-specific in response to individual state submissions. Also, subsequent to the effective waiver date ofthe section 182(b)(3) Stage II requirements, areas currently implementing the EPAapproved Stage II programs intheir SIPs

as aresult ofobligations under the 1- hour or 1997 8-hour ozone NAAQS, would be required to continue implementing these programs until the EPA approves a SIP revision adopted under state lawremoving the requirement from the state's ozone implementation plan.

VII. Estimated Cost

As part ofthe NPRM, the EPA conducted an initial assessment ofthe
costs and savings to gasoline dispensing facility owners related to this proposed action. The report titled, "Draft Regulatory SupportDocument, Decommissioning Stage II Vapor Recovery, Financial Benefits and Costs," is available in the public docketfor this action. The report examines the initial
costs and savings to facility owners incurred in the decommissioning of Stage II vapor recovery systems, as well

as changes in recurring costs associated with above ground hardware maintenance, operations, and administrative tasks. The EPA received

no substantive comment on the draft report, other than a concern thatthe savings identified therein may not come to pass as quickly as envisioned in the draft report ifthe EPA does not provide updated guidance on comparable

measures for the OTR states. We intend
to address this concern by issuing separate guidance for the states. 28EPA will post this action at the following web site address: http://www.epa.govl glo/actions.html.

As part ofthe re-analysis following the NPRM, the EPA reviewed the input values used for the proposal draft. Most input values were confirmed as

28"Phasing Out Stage IGasoline Refueling Vapor Recovery Programs: Guidance on Satisfying Requirements ofClean AirAct Sections 110(1), 193, and 184(b)(2) (tentative title)." U.S. EPA Office of Air and Radiation, forthcoming. reasonable and representative but it was concluded that two ofthe values should be updated. These include: (1)The pretax price ofgasoline used inthe foregone vapor recovery savings calculation, which increased from $2.30 in 2010 to $3.04 in 2011 (average price
per gallon), and (2)the number of Stage II facilities potentially affected by SIP revisions removing Stage II requirements in non-California Serious, Severe and Extreme ozone nonattainment areas which increased from 26,900 to 30,600 in 19 states and the District ofColumbia. As discussed in our final regulatory support document, the EPA estimates recurring
cost savings of about $3,000 per year for

atypical gasoline dispensing facility, and an annual nationwide savings ofup to $91 million ifStage II isphased out ofthe approximately 30,600 dispensing facilities outside ofCalifornia that are required to have Stage II vapor recovery systems under section 182(b)(3) ofthe CAA. 29This analysis assumes that Stage II isremoved from GDFs over a three
year time frame in an equal number each year. What actually occurs will depend on actions by the individual
states. Ifthe states submit andEPA
approves SIP revisions toremove Stage II systems from these GDFs, the EPA projects savings of about $10.2 million in the firstyear, $40.5 million in the second year, and $70.9 million in the third year. Long term savings are projected tobe about $91 million per year, compared to the current use of Stage II systems in these areas.
VIII. Statutory andExecutive Order Reviews

A. Executive Orders12866:Regulatory Planning andReview andExecutive Order13563:ImprovingRegulationand RegulatoryReview

Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), this action is a "significant regulatory action" because it raises novel legal or policy issues arising out oflegal mandates. Accordingly, the EPA submitted this action to the Office of Management and Budget (OMB) for review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011) and any changes made in response to OMB recommendations have been documented in the docketfor this action.

29See "Final Regulatory SupportDocument, Decommissioning Stage I1 Vapor Recovery, Financial Benefits and Costs," available in public docket, EPA-HQ-OAR-2010-1076. 

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B. Paperwork ReductionAct
This action does not impose an information collection burden under the provisions ofthe Paperwork Reduction Act, 44 U.S.C. 3501 et seq.Burden is defined at 5CFR 1320.3(b). It does not contain any recordkeeping orreporting requirements.

C.RegulatoryFlexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency to prepare

aregulatory flexibility analysis ofany rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that therule will not have a significant economic impact on a substantial number ofsmall entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes ofassessing the impacts ofthis action on small entities, small entity is defined as: (1)A smallbusiness

as defined in the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2)a small governmental jurisdiction thatis a government ofa city, county, town, school district or special district with a population ofless than 50,000; and (3)a small organization that is any not-for-profit enterprise which isindependently owned and operated and is not dominant in its field.

After considering the economic impacts ofthis action on small entities, I certify thatthis action will not have a significant economic impact on a substantial number of small entities. This rule will not impose any new requirements on small entities. Rather, it provides criteria for reducing existing regulatory requirements on gasoline dispensing facilities, some ofwhich may qualify as smallbusinesses.

D. UnfundedMandatesReformAct

This action contains no federal mandates under the provisions ofTitle II ofthe Unfunded Mandates Reform Act of 1995 (UMRA), 2U.S.C. 1531- 1538 for state, local, or tribal governments or theprivate sector. The action imposes no enforceable duty on any state, local or tribal governments, or the private sector. Therefore, this action is not subject to the requirements of sections 202 and 205 ofthe UMRA.

This action is also not subject to the requirements of section 203 ofUMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. This action addresses the removal ofa requirement regarding gasoline vapor recovery equipment, but does not impose any obligations to remove these
programs.
E.Executive Order13132:Federalism

This action does not have federalism implications. It willnot have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution ofpower and responsibilities among the various levels ofgovernment, as specified in Executive Order 13132. This action does
not impose any new mandates on state

or local governments. Thus, Executive Order 13132 does not apply to this rule.

F.Executive Order13175:Consultation andCoordinationWithIndian Tribal Governments

This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). It will not have substantial direct effects ontribal governments, on the relationship between the federal government and Indian tribes, or on the distribution ofpower and responsibilities between the federal government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule.

G. Executive Order13045:Protectionof ChildrenFromEnvironmentalHealth andSafetyRisks

The EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such thatthe analysis required under section 5-501 ofthe Executive Order has the potential to influence the regulation. This action is not subject to Executive Order 13045 because it does not establish an environmental standard intended tomitigate health or safety risks.

H. Executive Order13211:Actions Concerning RegulationsThat Significantly Affect EnergySupply, Distribution,or Use

This action is not a "significant energy action" as defined in Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not likely to have

a significant adverse effect on the supply, distribution, or use ofenergy. It does not impose additional costs on gasoline distribution, but rather promises to lower operating and maintenance costs for gasoline dispensing facilities by facilitating removal ofredundant gasoline refueling
vapor controls. L NationalTechnology Transferand AdvancementAct

Section 12(d) ofthe National Technology Transfer and Advancement Act of 1995 ("NTTAA"), Public Law 104-113, 12(d), (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in itsregulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, andbusiness practices) thatare developed or adopted byvoluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.

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

consensus standards.

J.Executive Order12898:Federal Actions ToAddressEnvironmental Justicein MinorityPopulations and Low-Income Populations

Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law,to make environmental justice part oftheir mission by identifying and addressing,

as appropriate, disproportionately high and adverse human health or environmental effects oftheir programs, policies, and activities on minority populations and low-income populations in the United States.

The EPA has determined thatthis final rule will nothave disproportionately high and adverse human health or environmental effects

onminority or low-income populations because it does not directly affect the level ofprotection provided to human health or the environment under the EPA's NAAQS for ozone. This action proposes to waive the requirement for
states to adopt largely redundant Stage II programs, based on a determination of widespread use ofORVR in the motor vehicle fleet.

K. Congressional ReviewAct
The Congressional Review Act, 5 U.S.C. 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 rulemust submita rule report, which includes a copy ofthe rule, to each House ofthe 

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Congress and to the Comptroller General ofthe United States. The EPA will submita report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives and the Comptroller General ofthe United States prior to publication oftherule in the Federal Register. A major rule cannot take effect until 60 days after itispublished in the Federal Register. This action isnot a "major rule" as defined by 5U.S.C. 804(2). This rule will be effective upon publication in the Federal Register.

IX. Statutory Authority

The statutory authority for this action is provided by the CAA, as amended (42 U.S.C. 7401, et seq.); relevantprovisions ofthe CAA include, but are not limited
to sections 182(b)(3), 202(a)(6), 301(a)(1), and 307(b), and 307(d)(42 U.S.C. 7511a(b)(3), 7521(a)(6), 7601(a)(1), 7607(b), and 7607(d)).

List of Subjects in 40 CFRPart51

Environmental protection, Administrative practice and procedure, Air pollution control, Ozone, Particulate matter, Volatile organic compounds.

Dated: May 9,2012. Lisa P.Jackson, Administrator.

For reasons set forth inthe preamble, part 51 ofchapter I oftitle 40 ofthe Code ofFederal Regulations is amended

as follows:

PART 51-REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF IMPLEMENTATION PLANS.

m 1. The authority citation for part51 continues to read as follows:

Authority:23 U.S.C. 101; 42 U.S.C. 7401- 7671q. Subpart G-[Amended]

* 2.Section 51.126 is added to read as follows:
§51.126 Determination ofwidespread use of ORVR and waiver of CAAsection 182(b)(3) Stage II gasoline vapor recovery requirements.

(a)Pursuant to section 202(a)(6) ofthe Clean Air Act, the Administrator has determined that, effective May 16, 2012, onboard refueling vapor recovery (ORVR) systems are in widespread use in the motorvehicle fleetwithin the United States. (b)Effective May 16, 2012, the Administrator waives the requirement ofClean Air Act section 182(b)(3) for Stage II vapor recovery systems in ozone nonattainment areas regardless of classification. States must submit and receive EPA approval ofa revision to their approved State Implementation Plans before removing Stage II requirements that are contained therein.

[FRDoe. 2012-11846 Filed 5-15-12; 8:45 am]

BILLING CODE 6560-50-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52 [EPA-R03-OAR-2011-0714; FRL-9670-3]
Approval and Promulgation of Air Quality Implementation Plans; Delaware, New Jersey, and Pennsylvania; Determinations of Attainment ofthe 1997 Annual Fine Particulate Standard forthe Philadelphia-Wilmington Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.

SUMMARY: EPA is making two determinations regarding the Philadelphia-Wilmington, PA-NJ-DE 

### fine particulate (PM2.5)nonattainment

area (the Philadelphia Area). First, EPA is making a determination thatthe Philadelphia Area has attained the 1997 annual PM2
. 5national ambient air quality standard (NAAQS)by its attainment date ofApril 5, 2010. This determination isbased upon quality assured and certified ambient air monitoring data that show the area monitored attainment ofthe 1997 annual PM2. 5NAAQS for the 2007-2009 monitoring period. Second, EPA is making a clean data determination, finding thatthe Philadelphia Area has attained the 1997 PM2. 5 NAAQS, based

on quality assured and certified ambient air monitoring data for the 2007-2009 and 2008-2010 monitoring periods. In accordance with EPA's applicable PM2. 5 implementation rule, this determination suspends the requirement for the Philadelphia Area to submit an attainment demonstration, reasonably available control measures/reasonably available control technology (RACM/ RACT), a reasonable further progress (RFP) plan, and contingency measures related to attainment ofthe 1997 annual PM2. 5NAAQS for so long asthe area continues to attain the 1997 annual PM2. 5NAAQS. These actions are being taken under the Clean AirAct (CAA).

DATES: This rule is effective on June 15, 2012.
ADDRESSES: EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2011-0714. All documents in the docket are listed in the www.regulations.govWeb site. Although listed in the electronic docket,

some information is not publicly available, i.e., confidential business information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and willbe publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.govorin hard copy for public inspection during normal business hours at the AirProtection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. FOR FURTHER INFORMATION CONTACT: If you have questions concerning EPA's actionrelated to Delaware or Pennsylvania, please contact Maria A. Pino, (215) 814-2181, orby email at pino.maria@epa.gov. Ifyou have questions concerning EPA's action related to NewJersey, please contact Henry Feingersh, (212) 637-3382, or by email atfeingersh.henry@epa.gov. SUPPLEMENTARY INFORMATION: The following outline is provided to aid in locating information in this action.

I.Background 11.Summary ofActions III. Summary ofPublic Comments andEPA Responses IV. Final Actions V. Statutory and Executive Order Reviews
I. Background

On January 23, 2012, EPA published

a direct final rulemaking (77 FR 3147) and companion notice ofproposed rulemaking (NPR) (77 FR 3223) for the States ofDelaware and NewJersey and the Commonwealth ofPennsylvania (the States). In the January 23, 2012 rulemaking action, EPA proposed to determine thatthe Philadelphia Area attained the 1997 PM2. 5NAAQS by its attainment date, April 5, 2010. EPA also proposed to make a clean data determination, finding that the Philadelphia Area has attained the 1997 PM2.5NAAQS.

Because EPA received adverse comment, EPA withdrew the direct final rule on March 13, 2012 (77 FR14697), and the direct final rule was converted
to a proposed rule.

II. Summary ofActions

These actions do not constitute a redesignation to attainment under section 107(d)(3) ofthe CAA. The designation status ofthe Philadelphia Area will remain nonattainment for the 1997 annual PM2.5 NAAQS until such 

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