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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]

RIN 2060-AQ97

Air Quality: Widespread Use for

Onboard Refueling Vapor Recovery

and Stage II Waiver

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: The EPA has determined that

onboard refueling vapor recovery

(ORVR) technology is in widespread use

throughout the motor vehicle fleet for

purposes of controlling motor vehicle

refueling emissions, and, therefore, by

this action, the EPA is waiving the

requirement for states to implement

Stage II gasoline vapor recovery systems

at gasoline dispensing facilities in

nonattainment areas classified as

Serious and above for the ozone

national ambient air quality standards

(NAAQS). This finding will be effective

as noted below in the DATES section.

After the effective date of this notice, a

state previously required to implement

a Stage II program may take appropriate

action to remove the program from its

State Implementation Plan (SIP).

Phasing out the use of Stage II systems

may lead to long-term cost savings for

gas station owners and operators while

air quality protections are maintained.

DATES: This rule is effective on May 16,

2012.

ADDRESSES: The EPA has established a

docket for 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.gov or

in hard copy at the Air and Radiation

Docket and Information Center, EPA

Headquarters Library, Room Number

3334 in the EPA West Building, located

at 1301 Constitution Ave. NW.,

Washington, 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 of Air Quality

Planning and Standards, Air Quality

Policy Division, Mail code C539-01,

Research Triangle Park, NC 27711,

telephone (919) 541-2363; fax number:

919-541-0824; email address: 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 II requirement

in order to ensure that refueling vapor

control regulations are beneficial

without being unnecessarily

burdensome to American business. This

action allows, but does not require,

states to discontinue Stage II vapor

recovery programs.

II. Summary of the Major Provisions of

This Final Rule

Clean Air Act (CAA) section 202(a)(6)

provides discretionary authority to the

EPA Administrator to, by rule, revise or

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

requirement for Serious, Severe and

Extreme ozone nonattainment areas

after the Administrator determines that

ORVR is in widespread use throughout

the motor vehicle fleet. Based on criteria

that the EPA proposed last year (76 FR

41731, July 15, 2011), the EPA is

determining that ORVR is in widespread

use. As of the effective date of today's

action, states that are implementing

mandatory Stage II programs under

section 182(b)(3) of the CAA may

submit revisions to their SIPs to remove

this program.

The EPA will also be issuing nonbinding guidance on developing and

submitting approvable SIP revisions.'

"Phasing Out Stage II Gasoline Refueling Vapor

Recovery Programs: Guidance on Satisfying

Requirements of Clean 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 for states to

consider when developing SIP revisions following

today's rulemaking. Unlike the 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) of the 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

of the ORVR widespread use

determination. The EPA now expects

Stage II comparable emissions

reductions to be substantially less than

what was estimated in the past before

ORVR use became widespread.

Therefore, the EPA encourages states to

consult the updated guidance before

submitting a SIP revision removing

Stage II controls.

III. Costs and Benefits

The primary purpose of this final rule

is to promulgate a determination that

ORVR is in widespread use as permitted

in section 202(a)(6) of the CAA. In this

final rule, EPA is exercising the

authority provided by section 202(a)(6)

of the CAA to, by rule, revise or waive

the section 182(b)(3) Stage II

requirement for Serious, Severe, and

Extreme ozone nonattainment areas

after the Administrator determines that

ORVR is in widespread use throughout

the motor vehicle fleet. This in turn

gives states that were required to

implement Stage II vapor recovery

under section 182(b)(3) of the CAA the

option to submit for the EPA's review

and approval revised ozone SIPs 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 million in the second

year, and $70.9 million in the third year.

Long-term savings are projected to be

about $91 million per year, compared to

the current use of Stage II systems in

these areas. No significant emission

guidance is not final agency action, and is not

binding on or enforceable against any person.

Consequently, it is subject to possible revision

without additional rulemaking. In addition, the

approaches suggested in the guidance (or in any

changes thereto) will not represent final agency

action unless and until the EPA takes a final SIP

approval or disapproval action implementing those

approaches.

28772
Federal 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 this action apply to me?

Entities directly affected by this

action include states (typically state air

pollution control agencies) and, in some

cases, local governments that develop

air pollution control rules that apply to

areas classified as Serious and above for

nonattainment of the ozone NAAQS.

Individuals and companies that operate

gasoline dispensing facilities may be

indirectly affected by virtue of state

action in SIPs that implement

provisions resulting from final

rulemaking on this action; many of

these sources are in the following

groups:

Industry group SICa NAICSb

Gasoline stations 5541 447110, 447190

aStandard Industrial Classification.

b North American Industry Classification

System.

B. Where can I get a copy of this

document and other related

information?

In addition to being available in the

docket, an electronic copy of this notice

will be posted at http://www.epa.govl

air/ozonepollution/actions.html#impl

under "recent actions."

C. How is this notice organized?

The information presented in this

preamble is organized as follows.

I. Purpose of Regulatory Action

II. Summary of the Major Provisions of This

Final Rule

III. Costs and Benefits

IV. General Information

A. Does this action apply to me?

B. Where can I get a copy of this document

and other related information?

C. How is this notice organized?

V. Background

A. What requirements for Stage II gasoline

vapor recovery apply for ozone

nonattainment areas?

B. Stage II Vapor Recovery Systems

C. Onboard Refueling Vapor Recovery

(ORVR) Systems

D. Compatibility Between Some Vapor

Recovery Systems

E. Proposed Rule to Determine Widespread

Use of ORVR

VI. This Action

A. Analytical Rationale for Final Rule

B. Updated Analysis of Widespread Use

C. Widespread Use Date

D. Implementation of the Rule Provisions

E. Implementation of Rule Revisions in the

Ozone Transport Region

F. Comments on Other Waiver

Implementation Issues

VII. Estimated Cost

VIII. Statutory and Executive Order Reviews

A. Executive Orders 12866: Regulatory

Planning and Review and Executive

Order 13563: Improving Regulation and

Regulatory Review

B. Paperwork Reduction Act

C. Regulatory Flexibility Act

D. Unfunded Mandates Reform Act

E. Executive Order 13132: Federalism

F. Executive Order 13175: Consultation

and Coordination With Indian Tribal

Governments

G. Executive Order 13045: Protection of

Children From Environmental Health

and Safety Risks

H. Executive Order 13211: Actions That

Significantly Affect Energy Supply,

Distribution, or Use

I. National Technology Transfer and

Advancement Act

J. Executive Order 12898: Federal Actions

To Address Environmental Justice in

Minority Populations and Low-Income

Populations

K. Congressional Review Act

IX. Statutory Authority

V. Background

A. What requirements for Stage II

gasoline vapor recovery apply in ozone

nonattainment areas?

The requirements in the 1990 CAA

Amendments regarding Stage II vapor

recovery are contained in Title I:

Provisions for Attainment and

Maintenance of National Ambient Air

Quality Standards. Under CAA section

182(b)(3), Stage II gasoline vapor

recovery systems are required to be used

at higher throughput GDFs located in

Serious, Severe, and Extreme

nonattainment areas for ozone. 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

2 gasoline vapor controls have provided

2 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 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 in 2002 for the 1997 8-hour ozone standard,

the EPA retained the Stage I1-related requirements

under section 182(b)(3) as they applied for the nowrevoked 1-hour ozone standard. 40 CFR 51.900(f)(5)

and 40 CFR 51.916(a).

3 This requirement only applies to facilities that

sell more than a specified number of gallons per

month and is set forth in sections 182(b)(3)(A)-(C)

and 324(a)-(c). Section 182(b)(3)(B) has the

following effective date requirements for

implementation of Stage I after the adoption date

by a state of a Stage I1 rule: 6 months after adoption

of the state rule, for GDFs built after the enactment

date (which for newly designated areas would be

the designation date); 1 year after adoption date, for

gas stations pumping at least 100,000 gal/month

based on average monthly sales over 2-year period

before adoption date; 2 years after adoption, for all

others.

substantial emissions reductions and

have contributed to improved air quality

over time.

B. Stage II Vapor Recovery Systems

When a gasoline-powered automobile

or other vehicle is brought into a GDF

to be refueled, the empty portion of the

fuel tank on the vehicle contains

gasoline vapors. When liquid gasoline is

pumped into the partially empty gas

tank, gasoline vapors are forced out of

the tank and fill pipe as the tank fills

with liquid gasoline. Where air

pollution control technology is not

used, these vapors are emitted into the

ambient air. In the atmosphere, these

vapors can react with sunlight, nitrogen

oxides and other volatile organic

compounds to form ozone.

There are two basic technical

approaches to Stage II vapor recovery: A

"balance" system, and a vacuum assist

system. A balance type Stage II control

system has a rubber boot around the

gasoline nozzle spout that fits snugly up

to a vehicle's gasoline fill pipe during

refueling of the vehicle. With a balance

system, when gasoline in the

underground storage tank (UST) is

pumped into a vehicle, a positive

pressure differential is created between

the vehicle tank and the UST. This

pressure differential draws the gasoline

vapors from the vehicle fill pipe through

the rubber boot and the concentric hoses

and underground piping into the UST.

This is known as a balance system

because gasoline vapors from the

vehicle tank flow into the UST tank to

balance pressures. About 30 percent of

Stage II GDFs nationwide use the

balance type Stage II system.

The vacuum assist system is the other

primary type of Stage II system

currently in operation. This type of

Stage II system uses a vacuum pump on

the vapor return line to help draw

vapors from the vehicle fill pipe into the

UST. An advantage of this type of

system is that the rubber boot around

the nozzle can be smaller and lighter (or

not used at all) and still draw the vapors

into the vapor return hose. This makes

for an easier-to-handle nozzle, which is

popular with customers. About 70

percent of Stage II GDFs nationwide use

the vacuum assist approach.

New Stage II equipment is normally

required to achieve 95 percent control

effectiveness at certification. However,

studies have shown that in-use control

efficiency depends on the proper

installation, operation, and maintenance

of the control equipment at the GDF. 4

4 The Petroleum Equipment Institute has

published recommended installation practices (PEI/

Continued

28773
Federal Register/Vol. 77, No. 95/Wednesday, May 16, 2012/Rules and Regulations

Damaged, missing, or improperly

operating components or systems can

significantly degrade the control

effectiveness of a Stage II system.

In-use effectiveness ultimately

depends on the consistency of

inspections, follow-up review by state

agencies, and actions by operators to

perform inspections and field tests and

conduct maintenance in a correct and

timely manner. The EPA's early

guidance for Stage II discussed expected

training, inspection, and testing criteria,

and most states have adopted and

supplemented these criteria as deemed

necessary for balance and vacuum assist

systems. 5 In some cases, states have

strictly followed the EPA guidance but

other states have required a lesser level

of inspection and enforcement efforts.

Past EPA studies have estimated Stage

II in-use efficiencies of 92 percent with

semi-annual inspections, 86 percent

with annual inspections and 62 percent

with minimal or less frequent state

inspections.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 of Stage II

vapor recovery systems depends heavily

on the ongoing maintenance and

oversight by GDF owners/operators and

the state/local agencies.

C. Onboard Refueling Vapor Recovery

(OR VR) Systems

In addition to Stage II controls, the

1990 CAA Amendments required

another method of controlling emissions

from dispensing gasoline. Section

202(a)(6) of the CAA requires an

onboard system of capturing vehiclerefueling emissions, commonly referred

to as an ORVR system. 7 ORVR consists

of an activated carbon canister installed

on the vehicle into which vapors are

routed from the vehicle fuel tank during

refueling. There the vapors are captured

by the activated carbon in the canister.

To prevent the vapors from escaping

through the fill pipe opening, the

vehicle employs a seal in the fill pipe

which allows liquid gasoline to enter

but blocks vapor escape. In most cases,

RP300-93) and most states require inspection,

testing, and evaluation 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 of Mobile Sources,

December 1991.

6 "Technical Guidance-Stage I Vapor Recovery

Systems for Control of Vehicle Refueling at

Gasoline Dispensing Facilities Volume I: Chapters,"

EPA-450/3-91-022a, November 1991. This study is

a composite of multiple studies.

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 of the fill pipe.

When the engine is started, the vapors

are purged from the activated carbon

and into the engine where they are

burned as fuel.

The EPA promulgated ORVR

standards on April 6, 1994 (59 FR

16262). Section 202(a)(6) of the CAA

required that the EPA's ORVR standards

apply to light-duty vehicles

manufactured beginning in the fourth

model year after the model year in

which the standards were promulgated,

and that ORVR systems provide a

minimum evaporative emission capture

efficiency of 95 percent.

Automobile manufacturers began

installing ORVR on new passenger cars

in 1998 when 40 percent of new cars

were required to have ORVR. The

regulation required the percentage of

new cars with ORVR increase to 80

percent in 1999 and 100 percent in

2000. The regulation also required that

ORVR for light duty trucks and vans

(<6000 pounds (lbs) gross vehicle

weight rating (GVWR)) was to be

phased-in during 2001 with 40 percent

of such new vehicles required to have

ORVR in 2001, 80 percent in 2002 and

100 percent in 2003. New heavier lightduty trucks (6001-8500 lbs GVWR) were

required to have 40 percent with ORVR

by 2004, 80 percent by 2005 and 100

percent by 2006. New trucks up to

10,000 lbs GVWR manufactured as a

complete chassis were all required to

have ORVR by 2006.8 Complete vehicle

chassis for heavy-duty gasoline vehicles

between 10,001 and 14,000 lbs GVWR

(Class 3) are very similar to those

between 8,501 and 10,000 lbs GVWR.

For model consistency purposes,

manufacturers began installing ORVR

on Class 3 complete chassis in 2006 as

well. So, after 2006, essentially all new

gasoline-powered vehicles less than

14,000 lbs GVWR are ORVR-equipped.

ORVR does not apply to all vehicles,

but those not covered by the ORVR

requirement comprise a small

percentage of the gasoline-powered

highway vehicle fleet (approximately

1.5 percent of gasoline consumption).

The EPA estimates that by the end of

2012, more than 71percent of vehicles

currently on the road will have ORVR. 9

This percentage will increase over time

as older cars and trucks are replaced by

8 The EPA promulgated ORVR standards for light

duty vehicles and trucks on April 6, 1994, 59 FR

16262, codified at 40CFR parts 86 (including

86.098-8), 88 and 600.

9 See EPA Memorandum "Onboard Refueling

Vapor Recovery Widespread Use Assessment." A

copy of this memorandum is located in the docket

for this action EPA-HQ-OAR-2010-1076.

new models. However, under the

current regulatory construct,

motorcycles and heavy-duty gasoline

vehicles not manufactured as a

complete chassis are not required to

install ORVR, so it is likely that there

will be some very small percentage of

gasoline refueling emissions not

captured by ORVR controls.

Even prior to the EPA's adoption of

ORVR requirements, in 1993 EPA

adopted Onboard Diagnostic (OBD)

System requirements for passenger cars

and light trucks, and eventually did so

for heavy-duty gasoline vehicles up to

14,000 lbs GVWR.1O These systems are

designed to monitor the in-use

performance of various vehicle emission

control systems and components,

including protocols for finding

problems in the purge systems and large

and small vapor leaks in ORVR/

evaporative emission controls." OBD II

systems were phased in for 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 of OBD II

control systems.' 2 This study concluded

that enhanced evaporative and ORVR

emission control systems are durable

and low emitting relative to the FTP

(Federal Test Procedure) enhanced

evaporative emission standards, and

that OBD II evaporative emissions

checks are a suitable replacement for

functional evaporative emission tests in

state inspection and maintenance (I/M)

programs. OBD system codes are

interrogated and evaluated in a 30-

vehicle emission I/M program. A recent

EPA review of OBD data gathered from

I/M programs from five 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 40 CFR part

86.1806-05 for program requirements in various

years.

11 ORVR systems are basically a subset of

evaporative emission systems because they share

the same vapor lines, purge valves, purge lines, and

activated carbon canister.

12 "Effectiveness of OBD I1 Evaporative Emission

Monitors-30 Vehicle Study," EPA 420-R-00-018,

October 2000.

13 See EPA Memorandum, "Review of Frequency

of Evaporative System Related OBD Codes for Five

State I/M Programs." A copy of this memorandum

is located in the docket for this action EPA-HQOAR-2010-1076.

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

problem with the vapor management

system.

Based on emissions tests of over 1,100

in-use ORVR-equipped vehicles, EPA

concluded that the average in-use

efficiency of ORVR is 98 percent. The

legal requirement for ORVR is 95

percent efficiency. Thus, the actual

reported control achieved in practice is

greater than the statutorily required

level of control.

D. Compatibility Between Some Vapor

Recovery Systems

Even though the per-vehicle vapor

recovery efficiency of ORVR exceeds

that of Stage II, Stage II vapor recovery

systems have provided valuable

reductions in ozone precursors and air

toxics as ORVR has been phased into

the motor vehicle fleet. In fact, overall

refueling emissions from vehicle fuel

tanks are minimized by having both

ORVR and Stage II in place, but the

incremental gain from retaining Stage II

decreases relatively quickly as ORVR

penetration surpasses 75 percent of

dispensed gasoline. Please see Table 2

below. This occurs not only because of

a decreasing amount of gasoline being

dispensed to non-ORVR equipped

vehicles, but also because differences in

operational design characteristics

between ORVR and vacuum assist Stage

II systems may in some cases cause a

reduction in the overall control system

efficiency compared to what could have

been achieved relative to the individual

control efficiencies of either ORVR or

Stage II emissions from the vehicle fuel

tank. The problem arises because the

ORVR canister captures the gasoline

vapor emissions from the motor vehicle

fuel tank rather than the vapors being

drawn off by the vacuum assist Stage II

system. This occurs because the fill pipe

seal blocks the vapor from reaching the

Stage II nozzle. Thus, instead of drawing

vapor-laden air from the vehicle fuel

tank into the underground storage tank

(UST), the vacuum pump of the Stage II

system draws mostly fresh air into the

UST. This fresh air causes gasoline in

the UST to evaporate inside the UST

and creates an internal increase in UST

pressure. As the proportion of ORVR

vehicles increases, the amount of fresh

air, void of gasoline vapors, pumped

into the UST also increases. Even with

pressure/vacuum valves in place this

eventually leads to gasoline vapors

being forced out of the UST vent pipe

into the ambient air. These new UST

vent-stack emissions detract from the

overall recovery efficiency at the GDF.

As discussed in the proposed rule, the

level of these UST vent stack emissions

varies based on several factors but can

result in a net 1 to 10 percent decrease

in overall control efficiency of vehicle

fuel tank emissions at any given GDF. 14

The decrease in efficiency varies

depending on the vacuum assist

technology design (including the use of

a mini-boot for the nozzle and the ratio

of volume of air drawn into the UST

compared to the volume of gasoline

dispensed (A/L) ratio), the gasoline Reid

vapor pressure, the air and gasoline

temperatures, and the fraction of

throughput dispensed to ORVR

vehicles. There are various technologies

that address these UST vent-stack

emissions and can extend the utility of

Stage II to further minimize the overall

control of gasoline vapor emissions at

the GDF. These technologies include

nozzles that sense when fresh air is

being drawn into the UST and stop or

reduce the air flow. These ORVRcompatible nozzles are now required in

California and Texas. Another solution

is the addition of processors on the UST

vent pipe that capture or destroy the

gasoline vapor emissions from the vent

pipe. A number of these systems were

presented in comments on the proposed

rule. While they may have merit,

installing these technologies adds to the

expense of the control systems.

E. Proposed Rule To Determine

Widespread Use of ORVR

Section 202(a)(6) of the CAA provides

discretionary authority to the EPA

Administrator to, by rule, revise or

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

14 See EPA Memorandum "Onboard Refueling

Vapor Recovery Widespread Use Assessment." A

copy of this memorandum is located in the docket

for this action EPA-HQ-OAR-2010-1076. The level

of these UST vent stack emissions varies based on

several factors; EPA estimates a 5.4 to 6.4

percentage point decrease in Stage I control

efficiency in the 2011-2015 time frame at GDFs

employing non-ORVR compatible vacuum assist

Stage I nozzles. The decrease in efficiency varies

depending on the vacuum assist technology design

(including the use of a mini-boot for the nozzle and

the ratio of volume of air drawn into the UST

compared to the volume of gasoline dispensed (A/

L) ratio), the gasoline Reid vapor pressure, the air

and gasoline temperatures, and the fraction of

throughput dispensed to ORVR vehicles. The values

will increase over time as the fraction of total

gasoline dispensed to ORVR vehicles at Stage I

GDFs increases.

requirement for Serious, Severe, and

Extreme ozone nonattainment areas

after the Administrator determines that

ORVR is in widespread use throughout

the motor vehicle fleet. The percentage

of non-ORVR vehicles and the

percentage of gasoline dispensed to

those vehicles 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 of Proposed 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 of the CAA section 182(b)(3)

Stage II requirements for Serious, Severe

and Extreme ozone nonattainment areas.

The EPA used two basic approaches

in determining when ORVR would be in

widespread use in the motor vehicle

fleet. Both approaches focused on the

penetration of ORVR-equipped vehicles

in the gasoline-powered highway motor

vehicle fleet. The first proposed

approach focused on the volume of

gasoline that is dispensed into vehicles

equipped with ORVR, and compared the

emissions reductions achieved by ORVR

alone to the reductions that can be

achieved by Stage II controls alone. The

second approach focused on the fraction

of highway motor gasoline dispensed to

ORVR-equipped vehicles.

In the proposal, the EPA included

Table 1 (republished below). This work

was based on outputs from EPA's

MOVES 2010 motor vehicle emissions

model, which showed information

related to the penetration of ORVR in

the national motor vehicle fleet

projected to 2020. These model outputs

have been updated for the final rule to

be consistent with the latest public

release of the model (MOVES 2010a)

since that is the version of the model

states would use in any future inventory

assessment work related to refueling

emissions control. Overall, ORVR

efficiency was shown in column 5 of

Table 1 and was determined by

multiplying the fraction of gasoline

dispensed into ORVR-equipped vehicles

by ORVR's 98 percent in-use control

efficiency.

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

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

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

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

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

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

In the proposal, the EPA estimated

that ORVR would need to achieve in-use

emission reductions of about 77.4

percent to be equivalent to the amount

of control Stage II alone would achieve.

This estimate was based on the in-use

control efficiency of Stage II systems

and exemptions for Stage II for lower

throughput GDFs. In the NPRM, the

EPA assumed that in areas where basic

Stage II systems are used the control

efficiency of Stage II gasoline vapor

control systems is 86 percent. The use

of this value depends on the assumption

that daily and annual inspections,

periodic testing, and appropriate

maintenance are conducted in a correct

and timely manner. In addressing

comments, we have stated that this

efficiency could be nearer to 60% if

inspections testing and maintenance are

not conducted and there is minimal

enforcement. I5

In the NPRM, the EPA estimated that

the percentage of gasoline dispensed in

an area that is covered by Stage II

controls is 90 percent. Multiplying the

estimated efficiency of Stage II systems

(86 percent) by the estimated fraction of

gasoline dispensed in nonattainment

areas from Stage II-equipped gasoline

pumps yielded an estimate of the areawide control efficiency of Stage II

15 See, "Determination of Widespread Use of

Onboard Refueling Vapor Recovery (ORVR) and

Waiver of Stage I Vapor Recovery Requirements:

Summary of Public Comments and Responses."

March 2012. Document contained in docket EPAHQ-OAR-2010-1076.

programs of 77.4 percent (0.90 x 0.86

0.774 or 77.4 percent) for emissions

displaced from vehicle 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 by the

end of calendar year 2012 more than 75

percent of gasoline will be dispensed

into ORVR-equipped vehicles. As

discussed in the NPRM, the EPA

believed that this percentage of ORVR

coverage (>75 percent) is substantial

enough to inherently be viewed as

'widespread" under any ordinary

16 See section 4.4.3 (especially Figure 4-14 and

Table 4-4) in "Technical Guidance-Stage I Vapor

Recovery Systems for Control of Vehicle Refueling

Emissions at Gasoline Dispensing Facilities,

Volume I: Chapters," EPA-450/3-91-022a,

November 1991. A copy of this document is located

in the docket for this action EPA-HQ-OAR-2010-

1076. This is based on annual enforcement

inspections and on allowable exemptions of 10,000/

50,000 gallons per month as described in section

324(a) of the CAA. The EPA recognizes that these

two values vary by state and that in some cases

actual in-use efficiencies, prescribed exemption

levels, or both may be either higher or lower.

17 AP-42, The EPA's emission factors document,

identifies three sources of refueling emissions:

Displacement, spillage, and breathing losses. In the

EPA Memorandum "Onboard Refueling Vapor

Recovery Widespread Use Assessment" (available

in the public docket), the EPA determined that for

separate Stage II and ORVR refueling events,

spillage and breathing loss emission rates are

similar. Thus, this analysis focuses on differences

in controlled displacement emissions.

Compatibility effects related to ORVR and Stage II

vacuum assist systems are addressed separately.

in the docket (number EPA-HQ-OAR-2010-

dispensed to highway motor vehicles.

understanding of that term.

Furthermore, in Table 1, the percentage

of VMT by ORVR-equipped vehicles

(column 3) and the amount of gasoline

dispensed into ORVR-equipped vehicles

(column 4) reached or exceeded 75

percent between the end of year 2011

and end of 2012. The EPA believed this

provided further support for

establishing a widespread use date after

the end of calendar year 2012. Based on

the dates derived from these two basic

approaches, the EPA proposed to

determine that ORVR will be in

widespread use by June 30, 2013, or the

midpoint of calendar year 2013.

VI. This Action

A. Analytical Rationale for Final Rule

Section 202(a)(6) of the CAA provides

discretionary authority to the EPA

Administrator to, by rule, revise or

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

requirement after the Administrator

determines that ORVR is in widespread

use throughout the motor vehicle fleet.

As discussed in the NPRM, the EPA has

broad discretion in how it defines

widespread use and the manner in

which any final determination is

implemented. In our review of the

public comments received on the

proposal, no commenter indicated that

a widespread use determination was

inappropriate or took issue with the

EPA's two-pronged analytical approach.

We have integrated responses to many

comments throughout the preamble to

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this final rule. A more detailed set of

responses is in a document titled,

"Determination of Widespread Use of

Onboard Refueling Vapor Recovery

(ORVR) and Waiver of Stage II Vapor

Recovery, Summary of Public

Comments and Responses" that can be

found in the docket, EPA-HQ-OAR2010-1076.

The analytical approaches used by the

EPA to determine the widespread use

date are influenced by several key input

parameters that affect the estimates of

the emission reduction benefits of Stage

II alone versus the benefits of ORVR

alone and the phase-in of ORVRequipped vehicles. We received several

comments on the assumptions and

parameters used by the EPA in the

NPRM, and in some cases we have

updated the information used in

calculations that support the final rule,

as discussed in the following

paragraphs.

1. ORVR Parameters

* ORVR efficiency. The EPA used an

in-use control efficiency of ORVR of 98

percent in the proposal. This was based

on the testing of 1,160 vehicles drawn

from the field. EPA has updated its

analysis to include an additional 478

refueling emission test results for

ORVR-equipped vehicles that were

conducted in calendar years 2010 and

2011. The data set, which now includes

over 1,600 vehicle tests for vehicles

from model years 2000-2010 with

mileages ranging from 10,000 to over

100,000, continues to support the

conclusion that the 98 percent in-use

efficiency values remain appropriate.18

* Modeling program inputs. The

NPRM relied on EPA's MOVES 2010

model for estimating ORVR vehicle fleet

penetration, VMT by ORVR vehicles,

and gallons of gasoline dispensed to

ORVR vehicles. Since the development

of the NPRM, the EPA has publicly

released MOVES 2010a. The updated

model incorporates many

improvements. Those relevant here

include updates in ORVR vehicle sales,

sales projections, scrappage, fleet mix,

annual VMT, and fuel efficiency. The

EPA believes that the modeling

undertaken to determine the widespread

use date for the final rule should

employ the EPA's latest MOVES

modeling program because it contains

updated information that bears on the

subject of this rulemaking, and because

the EPA expects states to also use it in

any state-specific demonstrations

18 See the EPA memorandum "Updated ORVR InUse Efficiency." A copy of this memorandum is

located in the docket for this action EPA-HQ-OAR2010-1076.

supporting future SIP revisions,

including revisions that seek to remove

Stage II programs.

2. Stage II Parameters

* Stage H1 efficiency. The EPA used an

in-use control efficiency of 86 percent

for Stage II in the proposal. As

discussed above, Stage II control

efficiency depends on inspection,

testing, and maintenance by GDF

owner/operators, and inspection and

enforcement by state/local agencies.

Typical values range from 62 percent to

86 percent. The public comments

referred the EPA to additional reported

information directly related to in-use

effectiveness of Stage II vapor

recovery. 19 The reports indicate that for

balance and vacuum-assist type Stage II

systems in use in many states today, the

in-use effectiveness of Stage II is

typically near 70 percent. Nonetheless,

the EPA has elected to retain the use of

an 86 percent efficiency value in the

analyses supporting the final rule. This

is because many state programs have

included the maintenance and

inspection provisions recommended by

EPA to achieve this level of efficiency

in their initial SIPs that originally

incorporated Stage II controls.20 Current

in-use efficiency values may well be

lower based on the performance of the

Stage II technology itself or for other

reasons related to maintenance and

enforcement. We are not rejecting the

additional information from

commenters or the possibility that Stage

II efficiency may be lower in some states

or nonattainment areas. However, the

EPA believes these issues are best

examined in the SIP review process. If

real in-use efficiency across all existing

Stage II programs is, in fact, lower than

86 percent, the EPA's final analysis

overestimates the length of time

required for emissions reductions from

ORVR alone to eclipse the reductions

that can be achieved by Stage II alone.

* Stage II exemption rate. In sections

182(b)(3) and 324 of the CAA, Congress

permitted exemptions from Stage II

controls for GDFs of less than 10,000

gallons/month (privates) and 50,000

gallons/month (independent small

19 See "Draft Vapor Recovery Test Report," April

1999 by CARB and CAPCOA (now cleared for

public use), and "Performance of Balance Vapor

Recovery Systems at Gasoline Dispensing

Facilities", prepared by the San Diego Air Pollution

Control District, May 18, 2000. Both reports are

available in the public docket.

20 The EPA report, "Enforcement Guidance for

Stage II Vehicle Refueling Control Programs," U.S.

EPA, Office of Air and Radiation, Office of Mobile

Sources, December 1991, provides basic EPA

guidance on what a state SIP and accompanying

regulations should include to achieve high

efficiency.

business marketers). The EPA analysis

indicated that these GDF throughput

values exempted about 10 percent of

annual throughput in any given area.

Some states included more strict

exemption rates, most commonly 10,000

gallons per month (3 percent of

throughput) for both privates and

independent small business marketers.

A few other states' exemption

provisions used values that fell within

or outside this range. 2' Of the 21 states

and the District of Columbia with areas

classified as Serious, Severe, or Extreme

for ozone and/or within the Ozone

Transport Region, the plurality

incorporated exemption provisions in

their state regulations, which exempted

about 10 percent of throughput.22

Therefore, we believe it remains

reasonable to use that value within this

analysis.

* Compatibility factor for vacuum

assist Stage 11 systems. The EPA

discussed the compatibility factor at

length in the NPRM and provided

relevant materials in the docket. Several

commenters asked that the EPA provide

guidance on how the compatibility

factor should be incorporated into any

similar analysis conducted by a state for

purposes of future SIP revisions

involving Stage II programs. The

magnitude of the compatibility factor for

any given area varies depending on

ORVR penetration, fraction of vacuum

assist nozzles relative to balance

nozzles, and excess A/L for vacuum

assist nozzles. Two states have adopted

measures to reduce this effect through

the use of ORVR-compatible nozzles

and one state prohibits vacuum assist

nozzles completely. Due to these

significant variables, the EPA is electing

not to include the compatibility factor

in the widespread use date

determination analysis, but will provide

the guidance requested by the

commenters for use in making future

SIP revisions. To the extent that

compatibility emissions across all

existing Stage II programs as a whole are

significant, the EPA's final analysis

overestimates the length of time

required for emissions reductions from

ORVR alone to eclipse the reductions

that can be achieved by Stage II alone.

B. Updated Analysis of Widespread Use

As discussed previously, the EPA has

used two approaches for determining

21 There are a few states that limit Stage II

exemptions to only GDFs with less than 10,000 gpm

throughput, which would exempt about three to

five percent of area-wide throughput.

22 See the EPA memorandum "Summary of Stage

II Exemption Program Values." A copy of this

memorandum is located in the docket for this

action in EPA-HQ-OAR-2010-1076.

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when ORVR is in widespread use on a

nationwide basis. After reviewing our

methodology and reviewing the related

comments on the NPRM, we are

retaining three of the four basic

analytical input parameters and

updating one. The in-use ORVR

efficiency, the in-use Stage II efficiency,

and the Stage II exemption rate

parameters are the same as in the

NPRM. However, we have updated the

modeling program inputs as discussed

previously, and the results are reflected

in Table 2.

TABLE 2-PROJECTED PENETRATION OF ORVR IN THE NATIONAL VEHICLE FLEET BY YEAR-BASED ON MOVES 2010(a)

Vehicle Gasoline ORVR

End of calendar year population VMT dispensed Efficiency

percentage percentage percentage

1 2 3 4 5

2 0 0 6 ......................................................................................... 4 2 .6 5 1 .2 4 9 .2 4 8 .2

2 0 0 7 ......................................................................................... 4 8 .4 5 7 .3 5 5 .5 5 4 .4

2 0 0 8 ......................................................................................... 5 3 .3 6 2 .3 6 0 .5 5 9 .2

2 0 0 9 ......................................................................................... 5 7 .7 6 6 .8 6 4 .8 6 3 .5

2 0 10 ......................................................................................... 6 2 .4 7 1 .6 6 9 .5 6 8 .1

2 0 1 1 ......................................................................................... 6 7 .1 7 6 .0 7 3 .9 7 2 .4

2 0 12 ......................................................................................... 7 1 .4 8 0 .0 7 7 .7 7 6 .1

2 0 13 ......................................................................................... 7 5 .3 8 3 .4 8 1 .0 7 9 .4

2 0 14 ......................................................................................... 7 8 .7 8 6 .3 8 4 .0 8 2 .3

2 0 15 ......................................................................................... 8 1 .8 8 8 .8 8 6 .5 8 4 .8

2 0 16 ......................................................................................... 8 4 .5 9 0 .9 8 8 .6 8 6 .8

2 0 17 ......................................................................................... 8 6 .8 9 2 .5 9 0 .3 8 8 .5

2 0 18 ......................................................................................... 8 8 .8 9 3 .9 9 1 .9 9 0 .0

2 0 19 ......................................................................................... 9 0 .5 9 5 .0 9 3 .2 9 1 .3

2 0 2 0 ......................................................................................... 9 2 .0 9 5 .9 9 4 .3 9 2 .4

See EPA Memorandum "Onboard Refueling Vapor Recovery Widespread Use Assessment" in the docket (number EPA-HQ-OAR-2010-

1076) addressing details on issues related to values in this table.

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

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

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

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

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

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

The results in Table 2 are applied in

the context of the two basic analytical

approaches used in the NPRM for

supporting the final date associated

with the EPA's widespread use

determination. First, using the analysis

based on equal reductions for Stage II

and ORVR, the 77.4 percent in-use

emission reduction efficiency for ORVR

will occur in May 2013 (See column 5

of Table 2). Second, 75 percent of

gasoline will be dispensed to ORVRequipped vehicles by April 2012 (See

column 4 of Table 2).

C. Widespread Use Date

The updated analysis indicates that

the two benchmarks will occur about a

year apart, and that one benchmark of

April 2012 has already passed. At the

time of the NPRM, both of the

benchmark dates for the ORVR

widespread use determination were in

the future, many months after the EPA's

expected final action. Thus, given the

basic merits of both approaches, the

EPA believed it was reasonable to

propose a date between the dates

associated with the two analytical

approaches.

The EPA's updated analysis presents

a somewhat different picture. The April

2012 benchmark date has already

passed, and the May 2013 benchmark

date is less than 1 year away. We believe

it is reasonable for the EPA

Administrator to determine that ORVR

is in widespread use in the motor

vehicle fleet as of the date this final

action is published in the Federal

Register because this final rule is being

promulgated within the window

bounded by the two benchmark dates

derived from the updated analyses.

As discussed previously in this notice

and in the NPRM, the EPA has

discretion in setting the widespread use

date. It is evident from the public

comments on the NPRM from states and

members of the regulated industry, and

from recent state actions, that there is a

desire to curtail Stage II installations at

newly constructed GDFs, and to initiate

an orderly phase-out of Stage II controls

at existing GDFs. 23 Since one of the two

analytical benchmark dates (April 2012)

2 3 For example, in November 2011, New

Hampshire put new regulations in place that

eliminate the need for new GDFs to install Stage LI,

allows current GDFs with Stage I to decommission

the systems, and requires all systems to be

decommissioned by December 22, 2015. In May of

2011, New York issued an enforcement discretion

directive which curtailed the need for new stations

to install Stage II and permitted current

installations to be decommissioned. These actions

remain under review of EPA.

has passed, and we expect in most cases

the second analytical benchmark date

(May 2013) will have passed by the time

the EPA is able to complete approvals

of SIP revisions removing Stage II

programs and pass any revised

regulations, then in response to

comments asking us to expedite the

ORVR widespread use finding, the EPA

Administrator is determining that ORVR

is in widespread use in the motor

vehicle fleet as of May 16, 2012.

Accordingly, as of May 16, 2012 the

requirement to implement a Stage II

emissions control program under

section 182(b)(3) of the CAA is waived.

D. Implementation of the Rule

Provisions

In this final action, the ORVR

widespread use determination and

waiver of the section 182(b)(3)

requirement applies to the entire

country. This includes areas that are

now classified as Serious or above for

ozone nonattainment, as well as those

that may be classified or reclassified as

Serious or above in the future.

In the NPRM, we indicated that states

could potentially demonstrate that

ORVR was in widespread use in specific

areas sooner than the general, national

date. Such a provision is no longer

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needed because today's action provides

for a nationwide determination of

widespread use effective on May 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. It is possible that

a state would determine it beneficial to

continue implementation of a Stage II

program. For example, in an area where

ORVR-equipped fleet penetration is

considerably less than the national

average, or where Stage II exemptions

are significantly more restrictive than

the national assumptions used in this

analysis, a state may determine that it

would not be appropriate to modify its

program immediately, but that it would

be more appropriate to do so at a later

date. In assessing whether and how to

phase out Stage II requirements, states

are encouraged to review, and as needed

revise the area-specific assumptions

about taking into consideration their

inspection and enforcement resource

commitments as well as ORVR/vacuumassist Stage II compatibility.

A state that chooses to remove the

program must submit a SIP revision

requesting EPA to approve such action

and provide, as appropriate, a

demonstration that the SIP revision is

consistent with CAA section 110(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. 24 The EPA encourages

states to review this guidance and

consult with the EPA Regional Offices

on developing SIP revisions seeking

EPA approval for phasing out existing

Stage II programs in a manner that

ensures air quality protections are

maintained.

Section 110(1) precludes the

Administrator from approving a SIP

revision if it would interfere with

applicable CAA requirements

(including, but not limited to,

attainment and maintenance of the

ozone NAAQS and achieving reasonable

further progress). A state may

demonstrate through analysis that

removing a Stage II program in an area

as of a specific date will not result in an

emissions increase in the area, or that

the small and ever-declining increase is

offset by other simultaneous changes in

the implementation plan. However, a

24 "Phasing Out Stage I Gasoline Refueling Vapor

Recovery Programs: Guidance on Satisfying

Requirements of Clean Air Act Sections 110(1), 193,

and 184(b)(2) (tentative title)." U.S. EPA Office of

Air and Radiation, forthcoming.

state may find that by removing Stage II

requirements, they are reducing the

overall level of emissions reductions

they have previously applied toward

meeting CAA rate of progress (ROP) or

reasonable further progress (RFP)

requirements, or demonstrating

attainment. If so, the state should

explain how removing Stage II controls

in the area would not interfere with

attaining and maintaining the ozone

NAAQS in the area. In such

circumstances, it is possible that

additional emissions reductions from

other measures may be needed to offset

the removal of Stage II.

If EPA has approved a state's adoption

of Stage II requirements into a SIP

before November 15, 1990, section 193

would also apply. Section 193 provides

that removal of an emissions control

program cannot result in any emissions

increase unless the increase is offset.

Section 193 only applies if an area is

nonattainment for the standard.

State and local agencies should also

consider any transportation conformity

impacts related to removing Stage II if

emissions reductions from Stage II are

included in a SIP-approved on-road

motor vehicle emissions budget. States

may need to adjust conformity budgets

or the components of the budget if

removing Stage II requirements would

alter expected air quality benefits.

In previous memoranda, the EPA

provided guidance to states on removing

Stage II at refueling facilities dedicated

to certain segments of the motor vehicle

fleet (e.g., new automobile assembly

plants, rental car facilities, E85

dispensing pumps, and corporate fleet

facilities). In these specific cases where

all or nearly all of the vehicles being

refueled are ORVR-equipped, the EPA

could conservatively conclude that

widespread use of ORVR had occurred

in these fleets.25

E. Implementation of Rule Provisions in

the Ozone Transport Region

States and the District of Columbia in

the OTR in the northeastern U.S. are

also subject to a separate Stage 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 of Onboard

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 II per se, but rather is a

requirement that OTR states achieve an

amount of emissions reductions

comparable to the amount that Stage II

would achieve. Moreover, section

202(a)(6), in allowing for a waiver of the

section 182(b)(3) Stage II requirement

for nonattainment areas, does not refer

to the independent section 184(b)(2)

requirements. Therefore, the section

184(b)(2) Stage 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" to those reductions

achieved by 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 of ORVRequipped vehicles into the overall

vehicle fleet, Stage Il-comparable

emissions are significantly less than 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 if preparing a SIP

revision to remove Stage II programs in

areas of the OTR.27

Commenters on the NPRM urged the

EPA to revise its previous interpretation

of section 184(b)(2) to permit ORVR to

be recognized as a Stage II comparable

emission reduction measure. This issue

is not within the scope of this

rulemaking, and EPS is not taking final

agency action implementing section

184(b)(2) or an interpretation thereof.

However, for informational purposes,

we point out that simply treating the

ORVR requirements under section

202(a)(6) as a comparable measure that

an OTR SIP must additionally contain

would arguably render the 184(b)(2)

requirement a nullity, which could be

an impermissible statutory

interpretation. If commenters wish to

further address this issue, we ask that

they raise their concerns in any future

SIP actions under section 184(b)(2)

regarding OTR states that may affect

them. In addition, we note that the

expected level of emissions reductions

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 Air Act 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 of 3-4 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,

or has reached a point of providing only

a declining de minimis benefit.

F. Comments on Other Waiver

Implementation Issues

Numerous commenters on the NPRM

urged the EPA to adopt provisions in

the final rule that would exempt new

gasoline dispensing facilities with

construction occurring between the final

rule publication and the effective Stage

II waiver date from installing Stage II

equipment. The timing issue is now

largely moot since widespread use is

deemed to have occurred on the

effective date of this action. However,

under the CAA, states adopt 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 of approved SIPs is its authority

under CAA section 110(c) to promulgate

a Federal Implementation Plan (FIP). To

trigger FIP authority, the EPA must first

determine that a state has failed to

submit a required SIP or that the state's

SIP must be disapproved. The

circumstances of this ORVR widespread

use finding and waiver of the section

182(b)(3) Stage II requirement to do not

present either of those situations.

According to requirements established

by the CAA that are applicable here,

states will need to develop and submit

SIP revisions to the EPA in order to

change or eliminate SIP-approved state

rules that set forth the compliance dates

for newly constructed GDFs.

Commenters also urged EPA to simply

allow states to eliminate all active Stage

II programs from certain nonattainment

areas after the widespread use date,

without requiring SIP revisions from

states. While the EPA has discretion to

determine the widespread use date, the

EPA cannot simply nullify states' rules

that are binding and enforceable under

state law. In order to change the federal

enforceability of SIPs, states must go

through the SIP revision process, and

the EPA can approve the SIP revision

only if the provisions of section 110(l)

and any other applicable requirements,

such as the requirements of section 193

and the comparable measures

requirement for OTR states, are

satisfied. Today's final rule takes no

action in implementing CAA sections

110(l), 193, or 184(b)(2), and any future

final actions regarding "comparable

measures" SIPs will be fact-specific in

response to individual state

submissions. Also, subsequent to the

effective waiver date of the section

182(b)(3) Stage II requirements, areas

currently implementing the EPAapproved Stage II programs in their SIPs

as a result of obligations under the 1-

hour or 1997 8-hour ozone NAAQS,

would be required to continue

implementing these programs until the

EPA approves a SIP revision adopted

under state law removing the

requirement from the state's ozone

implementation plan.

VII. Estimated Cost

As part of the NPRM, the EPA

conducted an initial assessment of the

costs and savings to gasoline dispensing

facility owners related to this proposed

action. The report titled, "Draft

Regulatory Support Document,

Decommissioning Stage II Vapor

Recovery, Financial Benefits and Costs,"

is available in the public docket for this

action. The report examines the initial

costs and savings to facility owners

incurred in the decommissioning of

Stage II vapor recovery systems, as well

as changes in recurring costs associated

with above ground hardware

maintenance, operations, and

administrative tasks. The EPA received

no substantive comment on the draft

report, other than a concern that the

savings identified therein may not come

to pass as quickly as envisioned in the

draft report if the EPA does not provide

updated guidance on comparable

measures for the OTR states. We intend

to address this concern by issuing

separate guidance for the states. 28 EPA

will post this action at the following

web site address: http://www.epa.govl

glo/actions.html.

As part of the re-analysis following

the NPRM, the EPA reviewed the input

values used for the proposal draft. Most

input values were confirmed as

28 "Phasing Out Stage I Gasoline Refueling Vapor

Recovery Programs: Guidance on Satisfying

Requirements of Clean Air Act 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 of the values should

be updated. These include: (1) The pretax price of gasoline used in the

foregone vapor recovery savings

calculation, which increased from $2.30

in 2010 to $3.04 in 2011 (average price

per gallon), and (2) the number of Stage

II facilities potentially affected by SIP

revisions removing Stage II

requirements in non-California Serious,

Severe and Extreme ozone

nonattainment areas which increased

from 26,900 to 30,600 in 19 states and

the District of Columbia. As discussed

in our final regulatory support

document, the EPA estimates recurring

cost savings of about $3,000 per year for

a typical gasoline dispensing facility,

and an annual nationwide savings of up

to $91 million if Stage II is phased out

of the approximately 30,600 dispensing

facilities outside of California that are

required to have Stage II vapor recovery

systems under section 182(b)(3) of the

CAA. 29 This analysis assumes that Stage

II is removed from GDFs over a three

year time frame in an equal number

each year. What actually occurs will

depend on actions by the individual

states. If the states submit and EPA

approves SIP revisions to remove Stage

II systems from these GDFs, the EPA

projects savings of about $10.2 million

in the first year, $40.5 million in the

second year, and $70.9 million in the

third year. Long term savings are

projected to be about $91 million per

year, compared to the current use of

Stage II systems in these areas.

VIII. Statutory and Executive Order

Reviews

A. Executive Orders 12866: Regulatory

Planning and Review and Executive

Order 13563: Improving Regulation and

Regulatory Review

Under Executive Order (EO) 12866

(58 FR 51735, October 4, 1993), this

action is a "significant regulatory

action" because it raises novel legal or

policy issues arising out of legal

mandates. Accordingly, the EPA

submitted this action to the Office of

Management and Budget (OMB) for

review under Executive Orders 12866

and 13563 (76 FR 3821, January 21,

2011) and any changes made in

response to OMB recommendations

have been documented in the docket for

this action.

29 See "Final Regulatory Support Document,

Decommissioning Stage I1 Vapor Recovery,

Financial Benefits and Costs," available in public

docket, EPA-HQ-OAR-2010-1076.

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B. Paperwork Reduction Act

This action does not impose an

information collection burden under the

provisions of the Paperwork Reduction

Act, 44 U.S.C. 3501 et seq. Burden is

defined at 5 CFR 1320.3(b). It does not

contain any recordkeeping or reporting

requirements.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA)

generally requires an agency to prepare

a regulatory flexibility analysis of any

rule subject to notice and comment

rulemaking requirements under the

Administrative Procedure Act or any

other statute unless the agency certifies

that the rule will not have a significant

economic impact on a substantial

number of small entities. Small entities

include small businesses, small

organizations, and small governmental

jurisdictions.

For purposes of assessing the impacts

of this action on small entities, small

entity is defined as: (1) A small business

as defined in the Small Business

Administration's (SBA) regulations at 13

CFR 121.201; (2) a small governmental

jurisdiction that is a government of a

city, county, town, school district or

special district with a population of less

than 50,000; and (3) a small

organization that is any not-for-profit

enterprise which is independently

owned and operated and is not

dominant in its field.

After considering the economic

impacts of this action on small entities,

I certify that this action will not have a

significant economic impact on a

substantial number of small entities.

This rule will not impose any new

requirements on small entities. Rather,

it provides criteria for reducing existing

regulatory requirements on gasoline

dispensing facilities, some of which

may qualify as small businesses.

D. Unfunded Mandates Reform Act

This action contains no federal

mandates under the provisions of Title

II of the Unfunded Mandates Reform

Act of 1995 (UMRA), 2 U.S.C. 1531-

1538 for state, local, or tribal

governments or the private sector. The

action imposes no enforceable duty on

any state, local or tribal governments, or

the private sector. Therefore, this action

is not subject to the requirements of

sections 202 and 205 of the UMRA.

This action is also not subject to the

requirements of section 203 of UMRA

because it contains no regulatory

requirements that might significantly or

uniquely affect small governments. This

action addresses the removal of a

requirement regarding gasoline vapor

recovery equipment, but does not

impose any obligations to remove these

programs.

E. Executive Order 13132: Federalism

This action does not have federalism

implications. It will not have substantial

direct effects on the states, on the

relationship between the national

government and the states, or on the

distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132. This action does

not impose any new mandates on state

or local governments. Thus, Executive

Order 13132 does not apply to this rule.

F. Executive Order 13175: Consultation

and Coordination With Indian Tribal

Governments

This action does not have tribal

implications, as specified in Executive

Order 13175 (65 FR 67249, November 9,

2000). It will not have substantial direct

effects on tribal governments, on the

relationship between the federal

government and Indian tribes, or on the

distribution of power and

responsibilities between the federal

government and Indian tribes, as

specified in Executive Order 13175.

Thus, Executive Order 13175 does not

apply to this rule.

G. Executive Order 13045: Protection of

Children From Environmental Health

and Safety Risks

The EPA interprets Executive Order

13045 (62 FR 19885, April 23, 1997) as

applying only to those regulatory

actions that concern health or safety

risks, such that the analysis required

under section 5-501 of the Executive

Order has the potential to influence the

regulation. This action is not subject to

Executive Order 13045 because it does

not establish an environmental standard

intended to mitigate health or safety

risks.

H. Executive Order 13211: Actions

Concerning Regulations That

Significantly Affect Energy Supply,

Distribution, or Use

This action is not a "significant

energy action" as defined in Executive

Order 13211 (66 FR 28355 (May 22,

2001)), because it is not likely to have

a significant adverse effect on the

supply, distribution, or use of energy. It

does not impose additional costs on

gasoline distribution, but rather

promises to lower operating and

maintenance costs for gasoline

dispensing facilities by facilitating

removal of redundant gasoline refueling

vapor controls.

L National Technology Transfer and

Advancement Act

Section 12(d) of the National

Technology Transfer and Advancement

Act of 1995 ("NTTAA"), Public Law

104-113, 12(d), (15 U.S.C. 272 note)

directs EPA to use voluntary consensus

standards in its regulatory activities

unless to do so would be inconsistent

with applicable law or otherwise

impractical. Voluntary consensus

standards are technical standards (e.g.,

materials specifications, test methods,

sampling procedures, and business

practices) that are developed or adopted

by voluntary consensus standards

bodies. The NTTAA directs EPA to

provide Congress, through OMB,

explanations when the Agency decides

not to use available and applicable

voluntary consensus standards.

This rulemaking does not involve

technical standards. Therefore, EPA is

not considering the use of any voluntary

consensus standards.

J. Executive Order 12898: Federal

Actions To Address Environmental

Justice in Minority Populations and

Low-Income Populations

Executive Order 12898 (59 FR 7629

(Feb. 16, 1994)) establishes federal

executive policy on environmental

justice. Its main provision directs

federal agencies, to the greatest extent

practicable and permitted by law, to

make environmental justice part of their

mission by identifying and addressing,

as appropriate, disproportionately high

and adverse human health or

environmental effects of their programs,

policies, and activities on minority

populations and low-income

populations in the United States.

The EPA has determined that this

final rule will not have

disproportionately high and adverse

human health or environmental effects

on minority or low-income populations

because it does not directly affect the

level of protection provided to human

health or the environment under the

EPA's NAAQS for ozone. This action

proposes to waive the requirement for

states to adopt largely redundant Stage

II programs, based on a determination of

widespread use of ORVR in the motor

vehicle fleet.

K. Congressional Review Act

The Congressional Review Act, 5

U.S.C. 801 et seq., as added by the Small

Business Regulatory Enforcement

Fairness Act of 1996, generally provides

that before a rule may take effect, the

agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of the

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Congress and to the Comptroller General

of the United States. The EPA will

submit a report containing this rule and

other required information to the U.S.

Senate, the U.S. House of

Representatives and the Comptroller

General of the United States prior to

publication of the rule in the Federal

Register. A major rule cannot take effect

until 60 days after it is published in the

Federal Register. This action is not a "major rule" as defined by 5 U.S.C.

804(2). This rule will be effective upon

publication in the Federal Register.

IX. Statutory Authority

The statutory authority for this action

is provided by the CAA, as amended (42

U.S.C. 7401, et seq.); relevant provisions

of the CAA include, but are not limited

to sections 182(b)(3), 202(a)(6),

301(a)(1), and 307(b), and 307(d)(42

U.S.C. 7511a(b)(3), 7521(a)(6),

7601(a)(1), 7607(b), and 7607(d)).

List of Subjects in 40 CFR Part 51

Environmental protection,

Administrative practice and procedure,

Air pollution control, Ozone, Particulate

matter, Volatile organic compounds.

Dated: May 9, 2012.

Lisa P. Jackson,

Administrator.

For reasons set forth in the preamble,

part 51 of chapter I of title 40 of the

Code of Federal Regulations is amended

as follows:

PART 51-REQUIREMENTS FOR

PREPARATION, ADOPTION, AND

SUBMITTAL OF IMPLEMENTATION

PLANS.

m 1. The authority citation for part 51

continues to read as follows:

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

7671q.

Subpart G-[Amended]

* 2. Section 51.126 is added to read as

follows:

§51.126 Determination of widespread use

of ORVR and waiver of CAA section

182(b)(3) Stage II gasoline vapor recovery

requirements.

(a) Pursuant to section 202(a)(6) of the

Clean Air Act, the Administrator has

determined that, effective May 16, 2012,

onboard refueling vapor recovery

(ORVR) systems are in widespread use

in the motor vehicle fleet within the

United States.

(b) Effective May 16, 2012, the

Administrator waives the requirement

of Clean Air Act section 182(b)(3) for

Stage II vapor recovery systems in ozone

nonattainment areas regardless of

classification. States must submit and

receive EPA approval of a revision to

their approved State Implementation

Plans before removing Stage II

requirements that are contained therein.

[FR Doe. 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 of the 1997 Annual Fine

Particulate Standard for the

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 (PM 2.5) nonattainment

area (the Philadelphia Area). First, EPA

is making a determination that the

Philadelphia Area has attained the 1997

annual PM 2.

5 national ambient air

quality standard (NAAQS) by its

attainment date of April 5, 2010. This

determination is based upon quality

assured and certified ambient air

monitoring data that show the area

monitored attainment of the 1997

annual PM 2.

5 NAAQS for the 2007-2009

monitoring period. Second, EPA is

making a clean data determination,

finding that the 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 PM 2.

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 of the 1997 annual

PM 2.

5 NAAQS for so long as the area

continues to attain the 1997 annual

PM 2.

5 NAAQS. These actions are being

taken under the Clean Air Act (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.gov Web 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 will be publicly

available only in hard copy form.

Publicly available docket materials are

available either electronically through

www.regulations.gov or in hard copy for

public inspection during normal

business hours at the Air Protection

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

action related to Delaware or

Pennsylvania, please contact Maria A.

Pino, (215) 814-2181, or by email at

pino.maria@epa.gov. If you have

questions concerning EPA's action

related to New Jersey, please contact

Henry Feingersh, (212) 637-3382, or by

email at feingersh.henry@epa.gov.

SUPPLEMENTARY INFORMATION: The

following outline is provided to aid in

locating information in this action.

I. Background

11. Summary of Actions

III. Summary of Public Comments and EPA

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 of proposed

rulemaking (NPR) (77 FR 3223) for the

States of Delaware and New Jersey and

the Commonwealth of Pennsylvania (the

States). In the January 23, 2012

rulemaking action, EPA proposed to

determine that the Philadelphia Area

attained the 1997 PM 2.

5 NAAQS 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

PM 2.5 NAAQS.

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 of Actions

These actions do not constitute a

redesignation to attainment under

section 107(d)(3) of the CAA. The

designation status of the Philadelphia

Area will remain nonattainment for the

1997 annual PM2.5 NAAQS until such

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