Approval and Promulgation of Implementation Plans; Arizona; Update to Stage II Gasoline Vapor Recovery Program; Change in the Definition of “Gasoline” To Exclude “E85”, 61062-61069 [2011-25397]
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61062
Proposed Rules
Federal Register
Vol. 76, No. 191
Monday, October 3, 2011
This section of the FEDERAL REGISTER
contains notices to the public of the proposed
issuance of rules and regulations. The
purpose of these notices is to give interested
persons an opportunity to participate in the
rule making prior to the adoption of the final
rules.
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R09–OAR–2010–0717; FRL–9473–7]
Approval and Promulgation of
Implementation Plans; Arizona; Update
to Stage II Gasoline Vapor Recovery
Program; Change in the Definition of
‘‘Gasoline’’ To Exclude ‘‘E85’’
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
Under the Clean Air Act, EPA
is proposing to approve certain
revisions to the Arizona State
Implementation Plan submitted by the
Arizona Department of Environmental
Quality. These revisions concern
amendments to the statutory and
regulatory provisions adopted by the
State of Arizona to regulate volatile
organic compound emissions from the
transfer of gasoline from storage tanks to
motor vehicle fuel tanks at gasoline
dispensing sites, i.e., stage II vapor
recovery. The revisions would also
amend the definition of ‘‘gasoline’’ to
explicitly exclude E85 and thereby
amend the requirements for fuels
available for use in the Phoenix
metropolitan area as well as the
requirements for vapor recovery. In
proposing approval of the revisions,
EPA is proposing to waive the statutory
stage II vapor recovery requirements at
E85 dispensing pumps within the
Phoenix area. Lastly, EPA is proposing
to correct an EPA rulemaking that
approved a previous version of the
Arizona rules regulating these sources.
DATES: Comments must be received on
or before December 2, 2011. Anyone
wishing the opportunity for the oral
presentation of data, views, or
arguments, must submit a request on or
before October 18, 2011.
ADDRESSES: Submit comments,
identified by docket number EPA–R09–
OAR–2010–0717, by one of the
following methods:
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SUMMARY:
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1. Federal eRulemaking Portal:
https://www.regulations.gov.Follow the
on-line instructions.
2. E-mail: steckel.andrew@epa.gov.
3. Mail or deliver: Andrew Steckel
(AIR–4), U.S. Environmental Protection
Agency Region IX, 75 Hawthorne Street,
San Francisco, CA 94105–3901.
Instructions: All comments will be
included in the public docket without
change and may be made available
online at https://www.regulations.gov,
including any personal information
provided, unless the comment includes
Confidential Business Information (CBI)
or other information whose disclosure is
restricted by statute. Information that
you consider CBI or otherwise protected
should be clearly identified as such and
should not be submitted through https://
www.regulations.gov or e-mail. https://
www.regulations.gov is an ‘‘anonymous
access’’ system, and EPA will not know
your identity or contact information
unless you provide it in the body of
your comment. If you send e-mail
directly to EPA, your e-mail address
will be automatically captured and
included as part of the public comment.
If EPA cannot read your comment due
to technical difficulties and cannot
contact you for clarification, EPA may
not be able to consider your comment.
Electronic files should avoid the use of
special characters, any form of
encryption, and be free of any defects or
viruses.
Docket: The index to the docket for
this action is available electronically at
https://www.regulations.gov and in hard
copy at EPA Region IX, 75 Hawthorne
Street, San Francisco, California. While
all documents in the docket are listed in
the index, some information may be
publicly available only at the hard copy
location (e.g., copyrighted material), and
some may not be publicly available in
either location (e.g., CBI). To inspect the
hard copy materials, please schedule an
appointment during normal business
hours with the contact listed in the FOR
FURTHER INFORMATION CONTACT section.
For
further information on the revisions to
the Arizona State Implementation Plan
submitted by the Arizona Department of
Environmental Quality, contact Mr.
Andrew Steckel, EPA Region IX, 75
Hawthorne Street (AIR–4), San
Francisco, CA 94105, phone number
(415) 947–4115, fax number (415) 947–
FOR FURTHER INFORMATION CONTACT:
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3579, or by e-mail at
steckel.andrew@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document, ‘‘we,’’ ‘‘us,’’
and ‘‘our’’ refer to EPA.
Table of Contents
I. The State’s Submittal
A. What did the state submit for EPA
action?
B. Are there other versions of these
provisions in the Arizona SIP?
C. What are the relevant statutory
provisions?
D. What is the purpose of the submitted
SIP revision?
II. EPA’s Evaluation and Action
A. How is EPA evaluating the statutes and
rules?
B. Do the statutes and rules meet the
evaluation criteria?
1. Clean Air Act Requirements
2. Arizona’s Stage II Vapor Recovery
Requirements
3. Compliance With CAA Section 182(b)(3)
Stage II Requirements
4. Compliance With CAA Section 110(l)
C. Correction of Previous Rulemaking
III. Proposed Action and Request for Public
Comment
IV. Statutory and Executive Order Reviews
I. The State’s Submittal
A. What did the state submit for EPA
action?
On September 21, 2009, the Arizona
Department of Environmental Quality
(ADEQ) submitted a revision to the
Arizona state implementation plan (SIP)
updating the gasoline vapor recovery
program that was originally submitted
and approved by EPA in 1994 to meet
certain applicable requirements of the
Clean Air Act, as amended in 1990
(CAA or ‘‘Act’’).1 The specific revisions
include statutory provisions and
administrative rules regulating the
emissions of volatile organic
compounds (VOC) due to the transfer of
gasoline from storage tanks (typically
underground) to motor vehicle fuel
tanks at gasoline stations in the Phoenix
metropolitan area. The statutory
1 Gasoline dispensing pump vapor control
devices, commonly referred to as ‘‘stage II’’ vapor
recovery, are systems that control VOC vapor
releases during the refueling of motor vehicles. This
process takes the vapors normally emitted directly
into the atmosphere when pumping gas and
recycles them back into the fuel storage tank,
preventing them from polluting the air. For more
information on Stage II vapor recovery systems,
please see EPA’s proposed rule, ‘‘Air Quality:
Widespread Use for Onboard Refueling Vapor
Recovery and Stage II Waiver,’’ 76 FR 41731, at
41734 (July 15, 2011).
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provisions and administrative rules are
contained in enclosures 3 and 4 of
ADEQ’s September 21, 2009 SIP
revision submittal package.2
ADEQ’s submittal represents an
update to the stage II requirements but
is comprehensive in that the submitted
statutory and regulatory provisions also
address general requirements related to
stage I vapor recovery.3 While ADEQ’s
submittal relates almost entirely to the
state’s vapor recovery program, it also
amends the State’s fuels program by
amending the definition of the term
‘‘gasoline’’ to exclude ‘‘E85,’’ a change
that affects both the gasoline fuels
program established for the Phoenix
metropolitan area and the stage II vapor
recovery program because both
programs now rely on that particular
definition. ADEQ’s September 21, 2009
SIP revision submittal also contains
adequate documentation of public
notice, opportunity for comment, and a
public hearing on the proposed SIP
revision (see enclosure 5 of the
submittal). The public participation
61063
materials submitted by ADEQ
demonstrate compliance with the
procedural requirements set forth in
section 110(l) of the Clean Air Act (CAA
or ‘‘Act’’). (The substantive
requirements of section 110(l) are
discussed in section II.B.4 of this
document.)
Table 1 lists the statutory provisions,
and table 2 lists the administrative
rules, that were submitted by ADEQ on
September 21, 2009 and that we are
proposing to approve in today’s action.
TABLE 1—SUBMITTED STATUTORY PROVISIONS
Arizona revised statutes
Title
Title 41, chapter 15, article 1, section 41–
2051.
Title 41, chapter 15, article 6, section 41–
2121.
Title 41, chapter 15, article 7, section 41–
2131.
Definitions: subsection 6 (‘‘Certification’’), subsection 10 (‘‘Department’’), subsection
11 (‘‘Diesel fuel’’), subsection 12 (‘‘Director’’), and subsection 13 (‘‘E85’’).
Definitions: subsection 5 (‘‘Gasoline’’) ...........................................................................
Title 41, chapter 15, article 7, section 41–
2132.
Title 41, chapter 15, article 7, section 41–
2133.
Submitted
09/21/09
09/21/09
Definitions: subsection 1 (‘‘Annual throughput’’), subsection 2 (‘‘Clean air act’’), subsection 3 (‘‘Gasoline dispensing site’’), subsection 4 (‘‘Stage I vapor collection system’’), subsection 5 (‘‘Stage II vapor collection system’’), and subsection 6 (‘‘Vapor
control system’’).
Stage I and stage II vapor recovery systems ................................................................
09/21/09
Compliance schedules ...................................................................................................
09/21/09
09/21/09
TABLE 2—SUBMITTED RULES
Arizona administrative code
Effective
date
(for state
purposes)
Rule title
Title
Title
Title
Title
Title
20,
20,
20,
20,
20,
chapter
chapter
chapter
chapter
chapter
2,
2,
2,
2,
2,
article
article
article
article
article
1,
9,
9,
9,
9,
section
section
section
section
section
R20–2–101
R20–2–901
R20–2–902
R20–2–903
R20–2–904
............
............
............
............
............
Title
Title
Title
Title
Title
Title
Title
20,
20,
20,
20,
20,
20,
20,
chapter
chapter
chapter
chapter
chapter
chapter
chapter
2,
2,
2,
2,
2,
2,
2,
article
article
article
article
article
article
article
9,
9,
9,
9,
9,
9,
9,
section
section
section
section
section
section
section
R20–2–905
R20–2–907
R20–2–908
R20–2–909
R20–2–910
R20–2–911
R20–2–912
............
............
............
............
............
............
............
Definitions .........................................................................
Material Incorporated by Reference ................................
Exemptions .......................................................................
Equipment and Installation ...............................................
Application Requirements and Process for Authority to
Construct Plan Approval.
Initial Inspection and Testing ...........................................
Operation ..........................................................................
Training and Public Education .........................................
Recordkeeping and Reporting .........................................
Annual Inspection and Testing ........................................
Compliance Inspections ...................................................
Enforcement .....................................................................
Submitted
06/05/04
06/05/04
06/05/04
06/05/04
06/05/04
09/21/09
09/21/09
09/21/09
09/21/09
09/21/09
06/05/04
10/08/98
10/08/98
10/08/98
06/05/04
06/05/04
06/05/04
09/21/09
09/21/09
09/21/09
09/21/09
09/21/09
09/21/09
09/21/09
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On March 21, 2010, the submittal of
these rules for ADEQ was deemed by
operation of law to meet the
completeness criteria in 40 CFR part 51,
appendix V, which must be met before
formal EPA review.
B. Are there other versions of these
provisions in the Arizona SIP?
On November 1, 1994 (59 FR 54521),
we approved Arizona’s stage II vapor
recovery rules that had been adopted by
the Arizona Department of Weights and
Measures (ADWM) on August 27, 1993
and submitted to us by ADEQ on May
27, 1994. Specifically, we approved the
following sections of title 4, chapter 31,
article 9 (‘‘Gasoline Vapor Control’’) of
the Arizona Administrative Code (AAC):
• R4–31–901—Definitions;
• R4–31–902—Material incorporated
by reference;
• R4–31–903—Exemptions;
• R4–31–904—Equipment and
installation;
2 By letter dated April 12, 2011, ADEQ
substituted the statutes and rules in enclosures 3
and 4 as submitted on September 21, 2009 with
official, published versions of the same statutes and
rules in keeping with the requirements. ADEQ did
so in response to an EPA request for the official,
published versions of the statutes and rules to
comply with the requirements established by the
Office of the Federal Register for incorporating such
materials by reference into the Code of Federal
Regulations.
3 ‘‘Stage I’’ vapor recovery refers to the collection
of VOC emissions expelled from underground
storage tanks at gasoline stations when being
refilled by tank trucks. The Maricopa County Air
Quality Department (MCAQD) implements its own
stage I vapor recovery regulation within the
Phoenix metropolitan area, Regulation III, Rule 353
(‘‘Transfer of Gasoline into Stationary Storage
Dispensing Tanks’’). EPA approved MCAQD rule
353 and incorporated it into the Arizona SIP. See
61 FR 3578 (February 1, 1996). MCAQDM’s stage
I vapor recovery program and related rule are not
affected by today’s proposed action.
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• R4–31–905—Plan review and
approval;
• R4–31–906—Operation;
• R4–31–907—Training and public
education;
• R4–31–908—Recordkeeping and
reporting;
• R4–31–909—Annual tests; and
• R4–31–910—Enforcement.
In our 1994 final rule, we made an
error in how we codified the stage II
vapor recovery rules into the Arizona
SIP, and are proposing to correct that
error in today’s proposed action (see
section II.C of this document).
The Arizona statutory provisions that
establish stage II vapor recovery
requirements were originally submitted
to EPA on November 13, 1992, and later
re-submitted on February 16, 1993, but,
in approving the amended Stage II vapor
recovery rules submitted in 1994, EPA
inadvertently neglected to approve the
statutory provisions that had been
submitted the previous year. Thus, there
are no previous versions of the ARS
provisions listed in table 1 with the
exception of ARS 41–2121, paragraph
(5), which defines the term ‘‘gasoline.’’
We approved an earlier version of the
definition for ‘‘gasoline’’ (then codified
in paragraph (4) of ARS section 41–
2121) in connection with our approval
of the carbon monoxide redesignation
request and maintenance plan for
Tucson area. See 65 FR 36353 (June 8,
2000), as corrected at 65 FR 50651
(August 21, 2000) and 69 FR 12802
(March 18, 2004).
C. What are the relevant statutory
provisions?
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Under CAA section 182(b)(3), Stage II
vapor recovery systems are required to
be used at larger gasoline dispensing
facilities located in Serious, Severe, and
Extreme nonattainment areas for ozone.4
Based on deadlines established in the
Act, within 24 months from the effective
date of the initial area designation and
classification, states must adopt a Stage
II program into their SIPs, and the
controls must be installed according to
specified deadlines following state rule
adoption. For existing facilities the
installation deadlines depend on the
4 See CAA section 182(b)(3), 42 U.S.C.
7511a(b)(3). Originally, the section 182(b)(3) Stage
II requirement also applied in all Moderate ozone
nonattainment areas. However, under section
202(a)(6) of the CAA, 42 U.S.C. 7521(a)(6), the
requirements of section 182(b)(3) no longer apply in
Moderate ozone nonattainment areas after EPA
promulgated ORVR standards on April 6, 1994, 59
FR 16262, codified at 40 CFR parts 86 (including
86.098–8), 88 and 600. Under implementation rules
issued in 2004 for the 1997 8-hour ozone standard,
EPA retained the Stage II-related requirements
under section 182(b)(3) as they applied for the 1hour ozone standard. 40 CFR 51.900(f)(5).
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date the facilities were built and the
monthly volume of gasoline dispensed.
See CAA sections 182(b)(3)(A)–(B), and
324(a)–(c).5
However, the CAA provides
discretionary authority to the EPA
Administrator to, by rule, revise or
waive the section 182(b)(3) Stage II
requirement after the Administrator
determines that On-Board Refueling
Vapor Recovery (ORVR) is in
widespread use throughout the motor
vehicle fleet. See CAA section 202(a)(6).
ORVR consists of an activated carbon
canister installed in the vehicle into
which vapors being expelled from the
vehicle fuel tanks are forced to flow.
There the vapors are captured by the
activated carbon in the canister. When
the engine is started, the vapors are
drawn off of the activated carbon and
into the engine where they are burned
as fuel. EPA promulgated ORVR
standards on April 6, 1994, 59 FR
16262.
EPA first began the phase-in of ORVR
by requiring that 40 percent of
passenger cars manufactured in model
year 1998 be equipped with ORVR. The
ORVR requirement for passenger cars
was increased to 100 percent by model
year 2000. Phase-in continued for other
vehicle types and ORVR has been a
requirement on virtually all new
gasoline-powered motor vehicles
(passenger cars, light trucks, and
complete 6 heavy-duty gasoline powered
vehicles under 10,000 lbs gross vehicle
weight rating (GVWR)) sold since model
year 2006. See 40 CFR part 86.
Currently, ORVR-equipped vehicles
comprise approximately 64 percent of
the in-service vehicle fleet nationwide,
and account for around 74 percent of
the vehicle miles traveled (VMT) in the
nationwide fleet. The percentage of nonORVR vehicles and the percentage of
VMT driven by those vehicles declines
each year as these older vehicles wear
out and are removed from service. Since
certain vehicles are not required to have
ORVR, including motorcycles and
incomplete heavy-duty gasoline
powered trucks chassis, under current
requirements the nationwide motor
5 Section 182(b)(3)(B) has the following effective
date requirements for implementation of Stage II
after the adoption date by a state of a Stage II rule:
6 months after adoption of the state rule, for gas
stations built after the enactment date (which for
newly designated areas would be the designation
date); 1 year after adoption date, for gas stations
pumping at least 100,000 gal/month based on
average monthly sales over 2-year period before
adoption date; 2 years after adoption, for all others.
6 For purposes of ORVR applicability, a
‘‘complete’’ vehicle means a vehicle that leaves the
primary manufacturer’s control with its primary
load carrying device or container attached.
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vehicle fleet would never be entirely
equipped with ORVR.
Recently, EPA proposed criteria for
determining whether ORVR is in
‘‘widespread use’’ for purposes of
controlling motor vehicle refueling
emissions throughout the motor vehicle
fleet. See 76 FR 41731 (July 15, 2011).
In EPA’s July 15, 2011 action, EPA also
proposed, based on the proposed
criteria, to establish June 30, 2013 as the
date on which ‘‘widespread use’’ will
occur nationally, and to establish June
30, 2013 as the date on which a
nationwide waiver of Stage II gasoline
vapor recovery systems will be effective.
While, if finalized as proposed, our July
15, 2011 proposal would establish a
nationwide date for determining when
ORVR is in ‘‘widespread use’’ and for
waiving the Stage II requirement, it also
proposes to allow individual states to
submit SIP revisions that demonstrate
that ORVR widespread use has occurred
(or will occur) on a date earlier than
June 30, 2013 for areas in their states,
and to request that the EPA revise or
waive the section 182(b)(3) requirement
as it applies to only those areas. See 76
FR at 41733. Consistent with EPA’s July
15, 2011 proposal to allow States to
submit such SIP revisions, EPA is today
proposing to approve an area-specific
revision to the Arizona SIP and to
approve a waiver for a specific portion
of the motor vehicle fleet in the Phoenix
metropolitan area.
D. What is the purpose of the submitted
SIP revision?
Under the Clean Air Act, as amended
in 1990, the ‘‘Phoenix area,’’ defined by
the Maricopa Association of
Governments’ (MAGs’) urban planning
area boundary (but later revised to
exclude the Gila River Indian
Community at 70 FR 68339 (November
10, 2005)), was classified as a
‘‘moderate’’ nonattainment area for the
1-hour ozone national ambient air
quality standard (NAAQS). See 56 FR
56694, at 56717 (November 6, 1991).
Later, the Phoenix area was reclassified
as ‘‘serious’’ for the 1-hour ozone
standard (62 FR 60001, November 6,
1997).
As noted above, section 182(b)(3) of
the Act required States with ozone
nonattainment areas such as the
Phoenix area to adopt and submit a SIP
revision requiring gasoline dispensing
facilities to install and operate stage II
vapor recovery equipment. In response,
in 1993, ADEQ submitted the statutory
provisions and rules establishing stage II
vapor recovery requirements in the
Phoenix area, the only area in Arizona
subject to section 182(b)(3) of the Act.
In May 1994, ADEQ submitted amended
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stage II vapor recovery rules, which EPA
then approved later that year. See 59 FR
54521 (November 1, 1994).
More recently, the Arizona Legislature
has amended the relevant statutes (1) to
require ADWM to adopt rules to
enhance compliance with the stage II
vapor recovery requirements, (2) to
explicitly exclude ‘‘E85’’ from the
definition of ‘‘gasoline,’’ and (3) to
extend the geographic area to which
stage II vapor recovery requirements
apply to ‘‘area A.’’ 7 Since our approval
of the stage II vapor recovery rules in
1994, ADWM has renumbered and
recodified its gasoline vapor recovery
rules and amended them to enhance
compliance with the requirements. The
purpose of ADEQ’s September 21, 2009
SIP revision is to incorporate the
statutory and regulatory changes
described above into the Arizona SIP.
EPA’s ‘‘Technical Support Document
for EPA’s Notice of Proposed
Rulemaking on Revisions to the Arizona
State Implementation Plan’’ (August
2011) (TSD) has more information about
the statutory provisions and rules and
our evaluation, and can be found in the
docket for this action.
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II. EPA’s Evaluation and Action
A. How is EPA evaluating the statutes
and rules?
Since 1994, when EPA last approved
Arizona’s stage II vapor recovery rules,
EPA has designated a larger area
referred to the ‘‘Phoenix-Mesa’’ area as
nonattainment for the 1997 8-hour
ozone standard (69 23858, April 30,
2004),8 approved the State’s 1-hour
ozone redesignation request and
maintenance plan for the Phoenix area
(70 FR 34362, June 14, 2005), and
revoked the 1-hour ozone standard
(replaced by the 1997 8-hour ozone
standard) effective June 15, 2005 (69 FR
23951, April 30, 2004). Notwithstanding
the redesignation of the Phoenix area
and the revocation of the 1-hour ozone
standard, the Phoenix area remains
subject to the CAA section 182(b)(3)
stage II requirement by virtue of its
classification as ‘‘serious’’ for the 1-hour
ozone standard on the effective date of
the area’s designation as
‘‘nonattainment’’ for the 8-hour ozone
standard (i.e., on June 15, 2004) under
the anti-backsliding provisions of EPA’s
rules governing the transition from the
1-hour to the 8-hour ozone standard.
7 EPA most recently approved the definition of
‘‘area A’’ as part of the Arizona SIP in 2004. See
69 FR 10161 (March 4, 2004).
8 In 2009, EPA proposed to classify the PhoenixMesa nonattainment area as ‘‘marginal’’ for the 1997
8-hour ozone standard. See 74 FR 2936 (January 16,
2009). EPA has not taken final action on the January
2009 proposed rule.
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See 40 CFR 51.905(a). Thus, we have
evaluated the submitted statutory
provisions and rules to ensure Arizona’s
stage II program complies with section
182(b)(3) of the Act. In addition, we
have evaluated the submitted statutory
provisions and rules for enforceability
(see CAA section 110(a)(2)), and for
non-interference with reasonable further
progress or attainment of the NAAQS
(see CAA section 110(l)).
Guidance and policy documents that
we used to evaluate the submitted
statutory provisions and rules for
enforceability and compliance with
CAA section 182(b)(3) stage II vapor
requirement requirements include the
following:
1. ‘‘Issues Relating to VOC Regulation
Cutpoints, Deficiencies, and
Deviations,’’ EPA, May 25, 1988 (the
Bluebook).
2. ‘‘Guidance Document for Correcting
Common VOC & Other Rule
Deficiencies,’’ EPA Region 9, August 21,
2001 (the Little Bluebook).
3. ‘‘Draft Model Rule, Gasoline
Dispensing Facility—Stage II Vapor
Recovery,’’ EPA (August 17, 1992).
4. ‘‘Gasoline Vapor Recovery
Guidelines,’’ EPA Region IX (April 24,
2000).
5. ‘‘Removal of Stage II Vapor
Recovery in Situations Where
Widespread Use of Onboard Vapor
Recovery is Demonstrated,’’
memorandum from Stephen D. Page,
Director, EPA Office of Air Quality
Planning and Standards, and Margo
Tsirigotis Oge, Director, EPA Office of
Transportation and Air Quality, to
Regional Air Division Directors, dated
December 12, 2006 (‘‘2006 Page/Oge
Memorandum’’).9
6. ‘‘Removal of Stage II Vapor
Recovery from Refueling of Corporate
Fleets,’’ memorandum from Stephen D.
Page, Director, EPA Office of Air Quality
Planning and Standards, and Margo
Tsirigotis Oge, Director, EPA Office of
Transportation and Air Quality, to
Regional Air Division Directors, dated
November 28, 2007 (‘‘2007 Page/Oge
Memorandum’’).
All of the above documents can be
found in the docket for this rulemaking.
9 In EPA’s recent national rulemaking regarding
waiver of Stage II requirements, we indicate that the
Agency continues to believe the 2006 Page/Oge
Memorandum is sound guidance in areas where
Stage II is currently being implemented, and is
unaffected by the proposed national widespread use
determination. See 76 FR 41731, at 41737 (July 15,
2011). In today’s action, we rely primarily on the
principles and rationale set forth in the 2006 Page/
Oge Memorandum rather than those set forth in
EPA’s July 15, 2011 proposed rule.
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B. Do the statutes and rules meet the
evaluation criteria?
1. Clean Air Act Requirements
As discussed in section I.C. of this
document, CAA section 182(b)(3)
requires States with ozone
nonattainment areas classified as
‘‘moderate’’ or worse to adopt
regulations requiring owners or
operators of gasoline dispensing systems
to install and operate stage II vapor
recovery equipment at their facilities.
The Act specifies that these State rules
must apply to any facility that dispenses
more than 10,000 gallons of gasoline per
month, or, in the case of an independent
small business marketer (as defined in
CAA section 324), any facility that
dispenses more than 50,000 gallons of
gasoline per month.
Section 202(a)(6) of the Act required
EPA to promulgate standards requiring
that new light-duty vehicles be
equipped with onboard refueling vapor
recovery (ORVR) systems. ORVR
regulations were promulgated by EPA
on April 6, 1994 (see 59 FR 16262, 40
CFR 86.001 and 40 CFR 86.098). Upon
promulgation of the ORVR rules, under
CAA section 202(a)(6) the stage II
requirement of section 182(b)(3) no
longer applied to moderate areas, but
only to serious and worse areas. Since
model year 2000, all passenger cars have
been required to have ORVR, and since
2006, virtually all new gasoline
powered motor vehicles (passenger cars,
light trucks, and complete heavy-duty
gasoline powered vehicles) have been
required to be equipped with ORVR.
The CAA anticipates that, over the
long-term, ORVR will reduce the benefit
from, and the need for, stage II vapor
recovery systems at gasoline dispensing
sites in ozone nonattainment areas.
Section 202(a)(6) of the CAA allows
EPA to revise or waive the application
of stage II vapor recovery requirements
for areas classified as serious, severe, or
extreme for ozone, as appropriate, after
such time as EPA determines that ORVR
systems are in widespread use
throughout the motor vehicle fleet. CAA
section 202(a)(6) does not specify which
motor vehicle fleet must be the subject
of a widespread use determination
before EPA may revise or waive the
section 182(b)(3) stage II requirement.
Nor does the CAA identify what level of
ORVR use in the motor vehicle fleet
must be reached before it is
‘‘widespread.’’ To date, EPA has issued
two memoranda addressing when ORVR
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widespread use might be found for
particular fleets.10
EPA expects the possibility of
different rates of implementation of
ORVR across different geographic
regions and among different types of
motor vehicle fleets within any region.
Given this, EPA does not believe the
CAA section 202(a)(6) must be read
narrowly to allow a widespread use
determination and waiver of the stage II
requirement for a given area or area’s
fleet only if ORVR use has become
widespread through the entire United
States, or only if ORVR use has reached
a definite level in each area. Rather,
EPA believes that section 202(a)(6)
allows the Agency to apply the
widespread use criterion to either the
entire motor vehicle fleet in a State or
nonattainment area, or to special
segments of the overall fleet for which
ORVR use is shown to be sufficiently
high, and to base widespread use
determinations on differing levels of
ORVR use, as appropriate. EPA also
believes that the Act allows the Agency
to use an area-specific rulemaking
approving a SIP revision to issue the
section 202(a)(6) waiver for a relevant
fleet in a nonattainment area.
One metric that EPA has
recommended in determining whether
ORVR use is widespread within a given
motor vehicle fleet considers when VOC
emissions resulting from the application
of ORVR controls alone equal the VOC
emissions when both stage II vapor
recovery systems and ORVR controls are
used, after accounting for
incompatibility excess emissions. The
incompatibility excess emissions factor
relates to losses in control efficiency
when certain types of stage II and ORVR
are used together. EPA believes that one
reasonable widespread use metric based
on comparable VOC emissions will
likely have been reached when the
percentage of motor vehicles in service
with ORVR, the vehicle miles traveled
(VMT) by ORVR-equipped vehicles, or
the gasoline dispensed to ORVRequipped vehicles reaches 95 percent.
See the 2006 Page/Oge Memorandum,
page 2. Application of the 95 percent
criterion could lead, for example, to
10 ‘‘Removal of Stage II Vapor Recovery in
Situations Where Widespread Use of Onboard
Vapor Recovery is Demonstrated,’’ memorandum
from Stephen D. Page, Director, EPA Office of Air
Quality Planning and Standards, and Margo
Tsirigotis Oge, Director, EPA Office of
Transportation and Air Quality, to Regional Air
Division Directors, dated December 12, 2006; and
‘‘Removal of Stage II Vapor Recovery from
Refueling of Corporate Fleets,’’ memorandum from
Stephen D. Page, Director, EPA Office of Air Quality
Planning and Standards, and Margo Tsirigotis Oge,
Director, EPA Office of Transportation and Air
Quality, to Regional Air Division Directors, dated
November 28, 2007.
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waiver of stage II vapor recovery
requirements at gasoline dispensing
sites that exclusively fuel new
automobiles at assembly plants and
rental cars at rental car facilities given
the high percentage (essentially 100%)
of ORVR-equipped vehicles associated
with such facilities.
2. Arizona’s Stage II Vapor Recovery
Requirements
Arizona’s stage II vapor recovery
requirements are set forth in state law
(codified in the Arizona Revised
Statutes) and administrative rules
adopted by ADWM (codified in the
Arizona Administrative Code). Arizona
Revised Statutes (ARS) section 41–2132
(‘‘Stage I and stage II vapor recovery
systems’’) requires gasoline dispensing
sites to be equipped with a stage II
vapor collection system. The
requirement applies within ‘‘an ozone
nonattainment area designated as
moderate, serious, severe or extreme by
the United States environmental
protection agency under § 107(d) of the
clean air act, area A or other
geographical area * * *.’’ ARS section
41–2132(C). ‘‘Area A’’ is defined in ARS
section 49–541 and it includes all of the
metropolitan Phoenix former 1-hour
ozone nonattainment area plus
additional areas in Maricopa County to
the north, east, and west, as well as
small portions of Yavapai County and
Pinal County. ADEQ did not submit
ARS section 49–541 to EPA as part of
the stage II vapor recovery SIP update
revision on September 21, 2009, but
EPA has previously approved the
current definition of ‘‘area A’’ from ARS
section 49–541 into the SIP. See 69 FR
10161 (March 4, 2004).
ARS 41–2132 also provides an
exemption for gasoline dispensing sites
with a throughput of less than 10,000
gallons per month or less than 50,000
gallons per month in the case of an
independent small business marketer as
defined in section 324 of the Clean Air
Act, and for gasoline dispensing sites
that are located on a manufacturer’s
proving ground. ARS 41–2133 sets forth
certain compliance schedules related to
the stage II vapor recovery requirements
in ARS 41–2132.
The stage II vapor recovery
requirements in ARS 41–2132 rely upon
the definitions of certain terms, such as
‘‘gasoline,’’ ‘‘stage II vapor collection
system,’’ and ‘‘E85,’’ among others,
which are codified in ARS sections 41–
2015, 41–2121, and 41–2131, and ADEQ
included the relevant definitions, along
with ARS sections 41–2132 and 41–
2133, in the SIP revision submittal
dated September 21, 2009. See table 1
of this document. The definition of
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‘‘gasoline,’’ which is codified in
paragraph (5) of ARS 41–2121,
specifically excludes ‘‘diesel fuel’’ and
‘‘E85.’’
ARS section 41–2132(G) directs
ADWM to adopt by rule standards for
the installation and operation of stage I
and stage II vapor recovery systems.
ADWM’s rules for such systems are
codified at title 20, chapter 2, article 9
(‘‘Gasoline Vapor Recovery’’), of the
Arizona Administrative Code (AAC).
These rules rely upon certain
definitions in AAC, title 20, chapter 2,
article 1 (‘‘Administration and
Procedures’’), section R20–2–101
(‘‘Definitions’’). ADEQ submitted these
rules and definition to EPA as part of
the stage II SIP revision dated
September 21, 2009—see table 2 of this
document.
We previously approved ADWM’s
stage II vapor recovery rules (59 FR
54521, November 1, 1994), and in so
doing, found them to comply with CAA
section 182(b)(3), to be consistent with
EPA guidance on stage II vapor recovery
regulations, and to be enforceable. Thus,
our action today is based on an
evaluation of the changes in ADWM’s
rules as submitted on September 21,
2009 relative to those that were
approved in 1994 and that are
incorporated into the existing Arizona
SIP.
In addition to renumbering and
recodification, ADWM’s vapor recovery
rules have been amended to delete,
modify, and add certain definitions; to
approve use of certain CARB test
procedures not previously approved; to
include general requirements for stage I
vapor recovery systems; to add
exemptions for motor raceways, motor
vehicle proving grounds, and marine
and aircraft refueling facilities; to clarify
and expand application requirements;
and to enhance compliance-related
provisions.
3. Compliance With CAA Section
182(b)(3) Stage II Requirements
As explained in this subsection, based
on our review of Arizona’s stage II
requirements set forth in certain statutes
and administrative rules, we conclude
that the state meets the CAA section
182(b)(3) stage II requirements. First, the
state is requiring stage II vapor recovery
controls in an area that encompasses all
of the 1-hour ozone ‘‘serious’’
nonattainment area consistent with
compliance schedules set forth in the
Act. The state also provides low-volume
throughput exemptions that are
consistent with those allowed for in
CAA section 182(b)(3). State law,
however, also provides an exemption
for a ‘‘gasoline dispensing site that is
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located on a manufacturer’s proving
ground.’’ See ARS 41–2132(C). This
exemption is not specifically allowed
under CAA section 182(b)(3); however,
ADWM indicates that the one facility to
which the exemption had applied has
closed at its location within the
nonattainment area, and the equipment
has been removed to a new location
outside of the nonattainment area.11
Furthermore, ADWM reports that, at the
facility’s new location, the fuel
throughput is less than the lowthroughput (i.e., 10,000-gallon per
month) threshold exemption authorized
in section 182(b)(3). Assuming that the
fuel usage rate at the relocated facility
is representative of the throughput at
gasoline dispensing sites that would be
covered by the State’s exemption for
manufacturer’s proving ground in the
event that such an exempt facility
would locate once again within the
nonattainment area, the exemption is
acceptable under section 182(b)(3).
Because the state submitted the
definition of ‘‘gasoline’’ in ARS 41–2121
for our approval as part of the
September 21, 2009 SIP revision, we
must consider whether the exclusion in
ARS 41–2121 of ‘‘E85’’ from the
definition of gasoline comports with
section 182(b)(3) vapor recovery
requirements. By excluding ‘‘E85’’ from
the definition of gasoline, Arizona’s
stage II vapor recovery law (ARS 41–
2132) would not apply to E85
dispensing pumps within the ozone
nonattainment area.
E85 is a motor vehicle fuel that is a
blend of as little as 15 percent gasoline
and up to 85 percent ethanol. (In
wintertime applications, the ratio may
be 30 percent gasoline and 70 percent
ethanol.) E85 can only be used in
specially designed flexible fuel vehicles
(FFVs), which have mostly been
manufactured since 1998. Since these
are newer vehicles, most of them are
equipped with ORVR, and every FFV
built today has ORVR. Thus, most
vehicles refueling at E85 dispensing
pumps are already having their
evaporative emissions captured, as in
the cases of late model rental cars
refueling at rental car facilities and
newly manufactured cars being fueled
for the first time at automobile assembly
plants. At the time EPA released the
2006 Page/Oge Memorandum, EPA
estimated that 59 percent of FFVs in use
11 The information concerning the application of
the exemption for gasoline dispensing sites located
on a manufacturers’ proving ground is contained in
a letter from Duane M. Yantorno, Director,
Transportation Fuels and Air Quality Program,
Arizona Department of Weights and Measures, to
Andrew Steckel, Chief, Rules Office, Air Division,
EPA Region IX, dated August 1, 2011.
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nationwide were equipped with ORVR,
and we noted that the percentage of
FFVs with ORVR will continue to climb
as older vehicles are taken out of service
and new models join the fleet. We also
noted that the percentage of FFVs
equipped with ORVR varies across
different ozone nonattainment areas. In
the Phoenix metropolitan area, ADWM
estimates, based on a vehicle database
for 2008 provided by the Arizona
Department of Transportation’s Motor
Vehicle Division, that approximately 87
percent of FFVs in the Phoenix
metropolitan area are equipped with
ORVR.12 Given how close the ORVRequipped percentage for FFVs in the
Phoenix metropolitan area (87 percent
in 2008 and climbing) is to the ORVR
widespread use threshold based on
comparable VOC emissions (95 percent),
discussed above, we conclude that
ORVR is in widespread use in the FFV
vehicle fleet in the Phoenix
metropolitan area for the purposes of
CAA section 202(a)(6) so long as the
change in emissions due to use of E85
does not interfere with attainment and
RFP of any of the NAAQS. As discussed
in section II.B.4 of this document, we
conclude that allowing for greater use of
ethanol (by amending the definition of
‘‘gasoline’’ to exclude E85) in the
Phoenix metropolitan area would not
interfere with attainment and RFP of
any of the NAAQS, and thus, under
CAA section 202(a)(6), we propose to
waive the stage II vapor recovery
requirements for E85 dispensing pumps
in the Phoenix metropolitan area.
As noted above, in general, ADWM’s
revisions clarify and improve the
existing stage II vapor recovery rules
that we previously approved. The only
significant changes potentially affecting
approvability with respect to CAA
section 182(b)(3) are the new
exemptions for motor raceways, and for
marine and aircraft refueling facilities.
ADWM has provided us information
concerning the dispensing of gasoline at
the one motor raceway, the Phoenix
International Raceway, to which the
exemption applies.13 At the Phoenix
International Raceway, two types of fuel
12 The information on the percentage of FFVs in
the Phoenix metropolitan area that are ORVRequipped is from a report titled ‘‘Widespread Use
Analysis for E85 Stage II Waiver Request,’’ sent to
EPA by Duane M. Yantorno, Director,
Transportation Fuels and Air Quality Programs,
ADWM, via email on October 25, 2010.
13 The information concerning the application of
the exemption for motor raceways in the Phoenix
metropolitan area is contained in a letter from
Duane M. Yantorno, Director, Transportation Fuels
and Air Quality Program, Arizona Department of
Weights and Measures, to Andrew Steckel, Chief,
Rules Office, Air Division, EPA Region IX, dated
August 1, 2011.
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activities occur: the first is the fueling
for service vehicles, and the second is
the fueling for race cars during the
racing event. According to the
information provided ADWM by the
facility, approximately 8,000 gallons of
gasoline per year are dispensed at this
facility for service vehicles, which is far
below the 10,000-gallon per month lowthroughput threshold exemption in
CAA section 182(b)(3). Thus, as applied
to service vehicles, the exemption for
gasoline dispensing sites at motor
raceways is acceptable.
The facility’s fixed gasoline
dispensers, which are used to fuel
service vehicles, are not used for race
car fueling. Instead, for race events, the
fuels are special blends that are trucked
into the facility by the supplier and
dispensed from a mobile truck into gas
cans to be used during the racing event.
We believe it is reasonable to interpret
CAA section 182(b)(3) as applying to
‘‘motor vehicles’’ as defined in CAA
section 216(2) (‘‘As used in this part,
* * * (2) The term ‘‘motor vehicle’’
means any self-propelled vehicle
designed for transporting persons or
property on a street or highway’’), and
as such, the motor raceway exemption
as it applies to refueling of race cars,
which are not designed for street or
highway use, is acceptable under
section 182(b)(3). The same is also true
for the exemption for marine and
aircraft refueling facilities, which refuel
mobile sources that clearly are not
motor vehicles as defined in CAA
section 216(2). In sum, for the reasons
stated above, the new exemptions in
ADWM’s Stage II vapor recovery rules
for motor raceways, and for marine and
aircraft refueling facilities are
acceptable.
4. Compliance With CAA Section 110(l)
Under CAA section 110(l), EPA must
not approve a SIP revision if the
revision would interfere with any
applicable requirement concerning
reasonable further progress (RFP) and
attainment of any of the NAAQS or any
other applicable requirement under the
Act. With respect to this SIP revision,
we find that the only potentially
significant adverse effect on emissions
and, thus, potential for interference
stems from the exclusion of E85 from
the definition of ‘‘gasoline’’ in ARS 41–
2121, which would allow for increased
use of E85 (by FFVs) as a motor fuel in
the Phoenix metropolitan area, and the
relative difference in emissions from
FFVs using E85 relative to the same
vehicles using the specially formulated
gasoline (referred to as ‘‘Arizona Cleaner
Burning Gasoline,’’ or ‘‘Arizona CBG’’)
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otherwise required.14 (Arizona CBG is a
boutique fuel established to reduce
vehicle emissions in the Phoenix
metropolitan area and to help meet CAA
air quality planning requirements.) The
gasoline portion of E85 must continue to
meet the specifications for Arizona CBG
pursuant to AAC R20–2–718(B).
We would normally look to EPA’s
motor vehicle emissions model (the
most recent of which is ‘‘MOVES2010’’)
to estimate changes in vehicle emissions
resulting from combustion of different
fuel types, but MOVES2010 is only
designed to estimate the effects of
ethanol in gasoline up to 10% by
volume, and thus is not capable of
estimating vehicle emissions using E85.
(EPA is planning on evaluating recently
completed and ongoing studies using
E85 this year in order to add an E85
option to the next version of MOVES.)
However, we did review a recently
published study in the Journal of the Air
& Waste Management Association titled
‘‘Effect of E85 on Tailpipe Emissions
from Light-Duty Vehicles 15’’ (herein,
the ‘‘E85 Vehicle Emissions Study’’),
14 EPA’s guidance for States in developing their
Stage II SIPs in the early 1990s suggested that States
use the same definition of ‘‘gasoline’’ as the one
found in EPA’s Standard of Performance for Bulk
Gasoline Terminals at 40 CFR 60.501, which
includes ‘‘any petroleum distillate or petroleum
distillate/alcohol blend having a Reid vapor
pressure of 27.6 kilopascals or greater which is used
as a fuel for internal combustion engines.’’ EPA
recommended using this definition to most broadly
reach situations in which refueling of motor
vehicles results in evaporative VOC emissions that
contribute to ozone nonattainment concentrations,
and to avoid a narrow interpretation of what is
‘‘gasoline’’ that would allow significant VOC
emissions from motor vehicle refueling activities in
nonattainment areas to go uncontrolled.
In the existing SIP, Arizona includes a definition
of ‘‘gasoline,’’ AAC R4–31–901(5), that is consistent
with the NSPS definition. The SIP revision for
which we are proposing approval in today’s action
would replace the existing SIP definition of
‘‘gasoline’’ from Arizona’s rules for gasoline vapor
recovery (AAC title 20, chapter 2, article 9) with the
definition of ‘‘gasoline’’ from Arizona’s statutes
governing motor fuel (ARS section 41–2121(5)). The
definition of ‘‘gasoline’’ in ARS section 41–2121(5)
is as inclusive as the existing SIP definition in AAC
R4–31–901(5), except for the explicit exclusion of
E85. Given that E85 can only be used by FFVs, and
based on our proposed ‘‘widespread use’’
determination with respect to the FFV fleet in the
Phoenix area that would be fueled at E85
dispensing pumps, we find the exception for E85
from the definition of ‘‘gasoline’’ acceptable under
section 182(b)(3). Moreover, to allow for the
distribution and sale of E85 in the Phoenix area, a
change in the term of ‘‘gasoline’’ (to exclude E85)
for stage II vapor recovery purposes alone would
not have sufficed. Because of the boutique fuel
requirements of Arizona CBG that have been
approved into the Arizona SIP, a change in the
definition of ‘‘gasoline’’ as a motor fuel (to exclude
E85) was also necessary.
15 Janet Yanowitz and Robert L. McCormick,
‘‘Effect of E85 on Tailpipe Emissions from LightDuty Vehicles,’’ Journal of the Air & Waste
Management Association, Volume 59, February
2009, pages 172–182.
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which provides us with insight into the
potential emissions effects.
The E85 Vehicle Emissions Study
compiled the results from previous
published studies but also analyzed a
significantly larger database compiled
by EPA for vehicle certification
purposes. Though the results vary by
pollutant and between ‘‘tier 1’’ (i.e.,
model year (MY) 1994–2003) and ‘‘tier
2’’ (MY 2004–2008) vehicles, in general,
the study suggests that FFVs emit fewer
oxides of nitrogen (NOX), carbon
monoxide, and particulate matter (PM)
relative to the same FFVs using
gasoline. However, with respect to
VOCs, FFVs may well emit greater VOCs
than the same FFVs using gasoline
[based on the measurement results for
non-methane organic gases (NMOGs)].16
Thus, with respect to nitrogen
dioxide, carbon monoxide and
particulate matter, because emissions
using E85 would be lower than those
using CBG, the incremental substitution
of CBG with E85 would not interfere
with RFP or attainment of the ambient
standards for those pollutants.
We also believe that the net effect on
ozone conditions in the Phoenix 8-hour
ozone nonattainment area would be
beneficial despite the potential higher
VOC emission rate by E85-fueled FFVs
(relative to CBG-fueled FFVs) because of
the offsetting effect of NOX emissions
reductions (from use of E85 relative to
Arizona CBG) and because of the
extension of Stage II vapor recovery
requirements to ‘‘Area A,’’ an area that
is larger than the area formerly
designated as nonattainment for the 1hour ozone standard and that includes
the fast-growing region west of the City
of Phoenix.17
Therefore, we have determined that
this SIP revision, including the change
in the definition of ‘‘gasoline’’ to
exclude ‘‘E85,’’ would not interfere with
16 Ethanol itself contains no lead (Pb) or sulfur,
but the ethanol portion of E85 does contain some
Pb and sulfur due to the addition of a denaturant,
which can comprise up to 5% of the ethanol
portion of E85. The denaturant used by ethanol
producers is typically gasoline (either RFG or
conventional gasoline, depending on where the
ethanol plant is located), which has sulfur and Pb
specifications similar to those for CBG. Therefore,
a gallon of E85 would have less sulfur and Pb than
a gallon of CBG (due to the dilution provided by
the ethanol), and thus the emissions of sulfur
dioxide and Pb from use of E85 in FFVs would be
less than the corresponding emissions from use of
CBG in those vehicles. Therefore, there would be
no interference with RFP or attainment of the Pb
and sulfur dioxide NAAQS.
17 As submitted in 1993, ARS section 41–2132(C)
established the stage II vapor recovery requirement
within the ozone nonattainment area, but the
current version of this statute, which is included in
today’s proposed approval, extends the requirement
to ‘‘Area A.’’
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RFP and attainment for any of the
NAAQS.
C. Correction of Previous Rulemaking
On November 1, 1994, we took direct
final action to approve the
administrative rules adopted by the
Arizona Department of Weights and
Measures providing for the installation
and operation of stage II vapor recovery
systems. 59 FR 54521, November 1,
1994. We incorporated the approved
rules into the Arizona SIP by adding a
new paragraph (69) to 40 CFR 52.120(c),
which reads: ‘‘Maricopa County Bureau
of Air Pollution Control stage II vapor
recovery program, adopted on August
27, 1993.’’ The descriptive reference in
paragraph (69) was erroneous in that
administrative rules governing the vapor
recovery program in the Phoenix
metropolitan area in Maricopa County,
and adopted on August 27, 1993, were
adopted by the Arizona Department of
Weights and Measures, not the
Maricopa County Bureau of Air
Pollution Control (since renamed the
Maricopa County Air Quality
Department). Moreover, the descriptive
reference to the vapor recovery program
alone does not inform the public and
regulated community that our approval
relates to specific rules, and thus is
potentially confusing to the public and
regulated community as to the contents
of the SIP.
We are therefore, under section
110(k)(6) and 301(a) of the Clean Air
Act,18 proposing to correct our previous
codification of our approval of the stage
II vapor recovery rules adopted by
ADWM on August 27, 1993, and
submitted by ADEQ on May 27, 1994, to
identify the appropriate regulatory
agency and to identify the specific rules
that were approved.
III. Proposed Action and Request for
Public Comment
As authorized in section 110(k)(3) of
the Act, EPA is proposing to approve
the statutory provisions and updated
administrative rules establishing certain
vapor recovery requirements in the
Phoenix metropolitan area as a revision
to the Arizona SIP. Specifically, we are
proposing to approve Arizona Revised
Statutes (ARS) sections listed in table 1
18 Section 110(k)(6) of the CAA provides that,
whenever EPA determines that the Agency’s action
approving, disapproving, or promulgating any plan
or plan revision, area designation, redesignation,
classification, or reclassification was in error, EPA
may in the same manner as the approval,
disapproval, or promulgation revise such action as
appropriate without requiring any further
submission from the State. Section 301(a) of the
CAA authorizes EPA to prescribe such regulations
as are necessary to carry out the Agency’s functions
under the CAA.
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of this document and the Arizona
Administrative Code (AAC) sections
listed in table 2 of this document.19
Second, as authorized under CAA
section 202(a)(6), we are proposing to
waive the stage II vapor recovery
requirements at E85 dispensing pumps
in the Phoenix area under CAA section
202(a)(6) based on our conclusion that
ORVR is in widespread use among the
FFVs that use such facilities.
In so doing, we propose to conclude
that the submitted statutory provisions
and updated administrative rules meet
the related requirements for stage II
vapor recovery under CAA section
182(b)(3) and would not interfere with
attainment and RFP of any of the
NAAQS or any other CAA applicable
requirement, consistent with the
requirements of CAA section 110(l).
Final EPA approval of the updated
statutory provisions and rules and
incorporation of them into the Arizona
SIP would make them federally
enforceable.
Lastly, under section 110(k)(6) and
301(a) of the CAA, we are proposing to
correct and clarify the incorporation of
the previous version of these
administrative rules into the Arizona
SIP.
We will accept comments from the
public on this proposed approval for the
next 30 days.
IV. Statutory and Executive Order
Reviews
Under the Clean Air Act, the
Administrator is required to approve a
SIP submission that complies with the
provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k);
40 CFR 52.02(a). Thus, in reviewing SIP
submissions, EPA’s role is to approve
State choices, provided that they meet
the criteria of the Clean Air Act.
Accordingly, this action merely
proposes to approve State law as
meeting Federal requirements and does
not impose additional requirements
beyond those imposed by State law. For
that reason, this proposed action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Order 12866 (58 FR 51735,
October 4, 1993) given the limited
nature of this SIP revision (as to
geographic scope and vehicle
applicability);
19 Our
proposed approval of the statutory
provisions and administrative rules would
supersede the previously-approved versions of the
administrative rules in the Arizona SIP (i.e., AAC
Article 9 (‘‘Gasoline Vapor Control’’), Rules R4–31–
901 through R4–31–910, adopted by the Arizona
Department of Weights and Measures on August 27,
1993, submitted on May 27, 1994, and approved on
November 1, 1994 (59 FR 54521).
VerDate Mar<15>2010
17:28 Sep 30, 2011
Jkt 226001
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act
(5 U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the Clean Air Act;
and
• Does not provide EPA with the
discretionary authority to address
disproportionate human health or
environmental effects with practical,
appropriate, and legally permissible
methods under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, this proposed rule does
not have tribal implications as specified
by Executive Order 13175 (65 FR 67249,
November 9, 2000), because the SIP is
not approved to apply in Indian country
located in the State, and EPA notes that
it will not impose substantial direct
costs on tribal governments or preempt
tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Intergovernmental
relations, Ozone, Reporting and
recordkeeping requirements, Volatile
organic compounds.
Dated: September 19, 2011.
Keith Takata,
Acting Regional Administrator, Region IX.
[FR Doc. 2011–25397 Filed 9–30–11; 8:45 am]
BILLING CODE 6560–50–P
PO 00000
Frm 00008
Fmt 4702
Sfmt 4702
61069
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R09–OAR–2011–0580; FRL–9468–1]
Revisions to the California State
Implementation Plan, Sacramento
Metropolitan Air Quality Management
District, Ventura County Air Pollution
Control District, and Placer County Air
Pollution Control District
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
EPA is proposing to approve
revisions to the Sacramento
Metropolitan Air Quality Management
District (SMAQMD), Ventura County
Air Pollution Control District
(VCAPCD), and Placer County Air
Pollution Control District (PCAPCD)
portion of the California State
Implementation Plan (SIP). These
revisions concern volatile organic
compound (VOC) emissions from
organic chemical manufacturing, soil
decontamination, and polyester resin
operations. We are proposing to approve
local rules to regulate these emission
sources under the Clean Air Act as
amended in 1990 (CAA or the Act).
DATES: Any comments on this proposal
must arrive by November 2, 2011.
ADDRESSES: Submit comments,
identified by docket number EPA–R09–
OAR–2011–0580, by one of the
following methods:
1. Federal eRulemaking Portal:
www.regulations.gov. Follow the on-line
instructions.
2. E-mail: steckel.andrew@epa.gov.
3. Mail or deliver: Andrew Steckel
(Air-4), U.S. Environmental Protection
Agency Region IX, 75 Hawthorne Street,
San Francisco, CA 94105–3901.
Instructions: All comments will be
included in the public docket without
change and may be made available
online at https://www.regulations.gov,
including any personal information
provided, unless the comment includes
Confidential Business Information (CBI)
or other information whose disclosure is
restricted by statute. Information that
you consider CBI or otherwise protected
should be clearly identified as such and
should not be submitted through https://
www.regulations.gov or e-mail. https://
www.regulations.gov is an ‘‘anonymous
access’’ system, and EPA will not know
your identity or contact information
unless you provide it in the body of
your comment. If you send e-mail
directly to EPA, your e-mail address
will be automatically captured and
SUMMARY:
E:\FR\FM\03OCP1.SGM
03OCP1
]]>Agencies
[Federal Register Volume 76, Number 191 (Monday, October 3, 2011)]
[Proposed Rules]
[Pages 61062-61069]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-25397]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 76, No. 191 / Monday, October 3, 2011 /
Proposed Rules
[[Page 61062]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2010-0717; FRL-9473-7]
Approval and Promulgation of Implementation Plans; Arizona;
Update to Stage II Gasoline Vapor Recovery Program; Change in the
Definition of ``Gasoline'' To Exclude ``E85''
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: Under the Clean Air Act, EPA is proposing to approve certain
revisions to the Arizona State Implementation Plan submitted by the
Arizona Department of Environmental Quality. These revisions concern
amendments to the statutory and regulatory provisions adopted by the
State of Arizona to regulate volatile organic compound emissions from
the transfer of gasoline from storage tanks to motor vehicle fuel tanks
at gasoline dispensing sites, i.e., stage II vapor recovery. The
revisions would also amend the definition of ``gasoline'' to explicitly
exclude E85 and thereby amend the requirements for fuels available for
use in the Phoenix metropolitan area as well as the requirements for
vapor recovery. In proposing approval of the revisions, EPA is
proposing to waive the statutory stage II vapor recovery requirements
at E85 dispensing pumps within the Phoenix area. Lastly, EPA is
proposing to correct an EPA rulemaking that approved a previous version
of the Arizona rules regulating these sources.
DATES: Comments must be received on or before December 2, 2011. Anyone
wishing the opportunity for the oral presentation of data, views, or
arguments, must submit a request on or before October 18, 2011.
ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2010-0717, by one of the following methods:
1. Federal eRulemaking Portal: https://www.regulations.gov.Follow
the on-line instructions.
2. E-mail: steckel.andrew@epa.gov.
3. Mail or deliver: Andrew Steckel (AIR-4), U.S. Environmental
Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA
94105-3901.
Instructions: All comments will be included in the public docket
without change and may be made available online at https://www.regulations.gov, including any personal information provided,
unless the comment includes Confidential Business Information (CBI) or
other information whose disclosure is restricted by statute.
Information that you consider CBI or otherwise protected should be
clearly identified as such and should not be submitted through https://www.regulations.gov or e-mail. https://www.regulations.gov is an
``anonymous access'' system, and EPA will not know your identity or
contact information unless you provide it in the body of your comment.
If you send e-mail directly to EPA, your e-mail address will be
automatically captured and included as part of the public comment. If
EPA cannot read your comment due to technical difficulties and cannot
contact you for clarification, EPA may not be able to consider your
comment. Electronic files should avoid the use of special characters,
any form of encryption, and be free of any defects or viruses.
Docket: The index to the docket for this action is available
electronically at https://www.regulations.gov and in hard copy at EPA
Region IX, 75 Hawthorne Street, San Francisco, California. While all
documents in the docket are listed in the index, some information may
be publicly available only at the hard copy location (e.g., copyrighted
material), and some may not be publicly available in either location
(e.g., CBI). To inspect the hard copy materials, please schedule an
appointment during normal business hours with the contact listed in the
FOR FURTHER INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT: For further information on the
revisions to the Arizona State Implementation Plan submitted by the
Arizona Department of Environmental Quality, contact Mr. Andrew
Steckel, EPA Region IX, 75 Hawthorne Street (AIR-4), San Francisco, CA
94105, phone number (415) 947-4115, fax number (415) 947-3579, or by e-
mail at steckel.andrew@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,''
and ``our'' refer to EPA.
Table of Contents
I. The State's Submittal
A. What did the state submit for EPA action?
B. Are there other versions of these provisions in the Arizona
SIP?
C. What are the relevant statutory provisions?
D. What is the purpose of the submitted SIP revision?
II. EPA's Evaluation and Action
A. How is EPA evaluating the statutes and rules?
B. Do the statutes and rules meet the evaluation criteria?
1. Clean Air Act Requirements
2. Arizona's Stage II Vapor Recovery Requirements
3. Compliance With CAA Section 182(b)(3) Stage II Requirements
4. Compliance With CAA Section 110(l)
C. Correction of Previous Rulemaking
III. Proposed Action and Request for Public Comment
IV. Statutory and Executive Order Reviews
I. The State's Submittal
A. What did the state submit for EPA action?
On September 21, 2009, the Arizona Department of Environmental
Quality (ADEQ) submitted a revision to the Arizona state implementation
plan (SIP) updating the gasoline vapor recovery program that was
originally submitted and approved by EPA in 1994 to meet certain
applicable requirements of the Clean Air Act, as amended in 1990 (CAA
or ``Act'').\1\ The specific revisions include statutory provisions and
administrative rules regulating the emissions of volatile organic
compounds (VOC) due to the transfer of gasoline from storage tanks
(typically underground) to motor vehicle fuel tanks at gasoline
stations in the Phoenix metropolitan area. The statutory
[[Page 61063]]
provisions and administrative rules are contained in enclosures 3 and 4
of ADEQ's September 21, 2009 SIP revision submittal package.\2\
---------------------------------------------------------------------------
\1\ Gasoline dispensing pump vapor control devices, commonly
referred to as ``stage II'' vapor recovery, are systems that control
VOC vapor releases during the refueling of motor vehicles. This
process takes the vapors normally emitted directly into the
atmosphere when pumping gas and recycles them back into the fuel
storage tank, preventing them from polluting the air. For more
information on Stage II vapor recovery systems, please see EPA's
proposed rule, ``Air Quality: Widespread Use for Onboard Refueling
Vapor Recovery and Stage II Waiver,'' 76 FR 41731, at 41734 (July
15, 2011).
\2\ By letter dated April 12, 2011, ADEQ substituted the
statutes and rules in enclosures 3 and 4 as submitted on September
21, 2009 with official, published versions of the same statutes and
rules in keeping with the requirements. ADEQ did so in response to
an EPA request for the official, published versions of the statutes
and rules to comply with the requirements established by the Office
of the Federal Register for incorporating such materials by
reference into the Code of Federal Regulations.
---------------------------------------------------------------------------
ADEQ's submittal represents an update to the stage II requirements
but is comprehensive in that the submitted statutory and regulatory
provisions also address general requirements related to stage I vapor
recovery.\3\ While ADEQ's submittal relates almost entirely to the
state's vapor recovery program, it also amends the State's fuels
program by amending the definition of the term ``gasoline'' to exclude
``E85,'' a change that affects both the gasoline fuels program
established for the Phoenix metropolitan area and the stage II vapor
recovery program because both programs now rely on that particular
definition. ADEQ's September 21, 2009 SIP revision submittal also
contains adequate documentation of public notice, opportunity for
comment, and a public hearing on the proposed SIP revision (see
enclosure 5 of the submittal). The public participation materials
submitted by ADEQ demonstrate compliance with the procedural
requirements set forth in section 110(l) of the Clean Air Act (CAA or
``Act''). (The substantive requirements of section 110(l) are discussed
in section II.B.4 of this document.)
---------------------------------------------------------------------------
\3\ ``Stage I'' vapor recovery refers to the collection of VOC
emissions expelled from underground storage tanks at gasoline
stations when being refilled by tank trucks. The Maricopa County Air
Quality Department (MCAQD) implements its own stage I vapor recovery
regulation within the Phoenix metropolitan area, Regulation III,
Rule 353 (``Transfer of Gasoline into Stationary Storage Dispensing
Tanks''). EPA approved MCAQD rule 353 and incorporated it into the
Arizona SIP. See 61 FR 3578 (February 1, 1996). MCAQDM's stage I
vapor recovery program and related rule are not affected by today's
proposed action.
---------------------------------------------------------------------------
Table 1 lists the statutory provisions, and table 2 lists the
administrative rules, that were submitted by ADEQ on September 21, 2009
and that we are proposing to approve in today's action.
Table 1--Submitted Statutory Provisions
----------------------------------------------------------------------------------------------------------------
Arizona revised statutes Title Submitted
----------------------------------------------------------------------------------------------------------------
Title 41, chapter 15, article 1, section 41- Definitions: subsection 6 (``Certification''), 09/21/09
2051. subsection 10 (``Department''), subsection 11
(``Diesel fuel''), subsection 12 (``Director''), and
subsection 13 (``E85'').
Title 41, chapter 15, article 6, section 41- Definitions: subsection 5 (``Gasoline'').............. 09/21/09
2121.
Title 41, chapter 15, article 7, section 41- Definitions: subsection 1 (``Annual throughput''), 09/21/09
2131. subsection 2 (``Clean air act''), subsection 3
(``Gasoline dispensing site''), subsection 4 (``Stage
I vapor collection system''), subsection 5 (``Stage
II vapor collection system''), and subsection 6
(``Vapor control system'').
Title 41, chapter 15, article 7, section 41- Stage I and stage II vapor recovery systems........... 09/21/09
2132.
Title 41, chapter 15, article 7, section 41- Compliance schedules.................................. 09/21/09
2133.
----------------------------------------------------------------------------------------------------------------
Table 2--Submitted Rules
----------------------------------------------------------------------------------------------------------------
Effective
date (for
Arizona administrative code Rule title state Submitted
purposes)
----------------------------------------------------------------------------------------------------------------
Title 20, chapter 2, article 1, section R20-2- Definitions........................... 06/05/04 09/21/09
101.
Title 20, chapter 2, article 9, section R20-2- Material Incorporated by Reference.... 06/05/04 09/21/09
901.
Title 20, chapter 2, article 9, section R20-2- Exemptions............................ 06/05/04 09/21/09
902.
Title 20, chapter 2, article 9, section R20-2- Equipment and Installation............ 06/05/04 09/21/09
903.
Title 20, chapter 2, article 9, section R20-2- Application Requirements and Process 06/05/04 09/21/09
904. for Authority to Construct Plan
Approval.
Title 20, chapter 2, article 9, section R20-2- Initial Inspection and Testing........ 06/05/04 09/21/09
905.
Title 20, chapter 2, article 9, section R20-2- Operation............................. 10/08/98 09/21/09
907.
Title 20, chapter 2, article 9, section R20-2- Training and Public Education......... 10/08/98 09/21/09
908.
Title 20, chapter 2, article 9, section R20-2- Recordkeeping and Reporting........... 10/08/98 09/21/09
909.
Title 20, chapter 2, article 9, section R20-2- Annual Inspection and Testing......... 06/05/04 09/21/09
910.
Title 20, chapter 2, article 9, section R20-2- Compliance Inspections................ 06/05/04 09/21/09
911.
Title 20, chapter 2, article 9, section R20-2- Enforcement........................... 06/05/04 09/21/09
912.
----------------------------------------------------------------------------------------------------------------
On March 21, 2010, the submittal of these rules for ADEQ was deemed
by operation of law to meet the completeness criteria in 40 CFR part
51, appendix V, which must be met before formal EPA review.
B. Are there other versions of these provisions in the Arizona SIP?
On November 1, 1994 (59 FR 54521), we approved Arizona's stage II
vapor recovery rules that had been adopted by the Arizona Department of
Weights and Measures (ADWM) on August 27, 1993 and submitted to us by
ADEQ on May 27, 1994. Specifically, we approved the following sections
of title 4, chapter 31, article 9 (``Gasoline Vapor Control'') of the
Arizona Administrative Code (AAC):
R4-31-901--Definitions;
R4-31-902--Material incorporated by reference;
R4-31-903--Exemptions;
R4-31-904--Equipment and installation;
[[Page 61064]]
R4-31-905--Plan review and approval;
R4-31-906--Operation;
R4-31-907--Training and public education;
R4-31-908--Recordkeeping and reporting;
R4-31-909--Annual tests; and
R4-31-910--Enforcement.
In our 1994 final rule, we made an error in how we codified the
stage II vapor recovery rules into the Arizona SIP, and are proposing
to correct that error in today's proposed action (see section II.C of
this document).
The Arizona statutory provisions that establish stage II vapor
recovery requirements were originally submitted to EPA on November 13,
1992, and later re-submitted on February 16, 1993, but, in approving
the amended Stage II vapor recovery rules submitted in 1994, EPA
inadvertently neglected to approve the statutory provisions that had
been submitted the previous year. Thus, there are no previous versions
of the ARS provisions listed in table 1 with the exception of ARS 41-
2121, paragraph (5), which defines the term ``gasoline.'' We approved
an earlier version of the definition for ``gasoline'' (then codified in
paragraph (4) of ARS section 41-2121) in connection with our approval
of the carbon monoxide redesignation request and maintenance plan for
Tucson area. See 65 FR 36353 (June 8, 2000), as corrected at 65 FR
50651 (August 21, 2000) and 69 FR 12802 (March 18, 2004).
C. What are the relevant statutory provisions?
Under CAA section 182(b)(3), Stage II vapor recovery systems are
required to be used at larger gasoline dispensing facilities located in
Serious, Severe, and Extreme nonattainment areas for ozone.\4\ Based on
deadlines established in the Act, within 24 months from the effective
date of the initial area designation and classification, states must
adopt a Stage II program into their SIPs, and the controls must be
installed according to specified deadlines following state rule
adoption. For existing facilities the installation deadlines depend on
the date the facilities were built and the monthly volume of gasoline
dispensed. See CAA sections 182(b)(3)(A)-(B), and 324(a)-(c).\5\
---------------------------------------------------------------------------
\4\ See CAA section 182(b)(3), 42 U.S.C. 7511a(b)(3).
Originally, the section 182(b)(3) Stage II requirement also applied
in all Moderate ozone nonattainment areas. However, under section
202(a)(6) of the CAA, 42 U.S.C. 7521(a)(6), the requirements of
section 182(b)(3) no longer apply in Moderate ozone nonattainment
areas after EPA promulgated ORVR standards on April 6, 1994, 59 FR
16262, codified at 40 CFR parts 86 (including 86.098-8), 88 and 600.
Under implementation rules issued in 2004 for the 1997 8-hour ozone
standard, EPA retained the Stage II-related requirements under
section 182(b)(3) as they applied for the 1-hour ozone standard. 40
CFR 51.900(f)(5).
\5\ Section 182(b)(3)(B) has the following effective date
requirements for implementation of Stage II after the adoption date
by a state of a Stage II rule: 6 months after adoption of the state
rule, for gas stations built after the enactment date (which for
newly designated areas would be the designation date); 1 year after
adoption date, for gas stations pumping at least 100,000 gal/month
based on average monthly sales over 2-year period before adoption
date; 2 years after adoption, for all others.
---------------------------------------------------------------------------
However, the CAA provides discretionary authority to the EPA
Administrator to, by rule, revise or waive the section 182(b)(3) Stage
II requirement after the Administrator determines that On-Board
Refueling Vapor Recovery (ORVR) is in widespread use throughout the
motor vehicle fleet. See CAA section 202(a)(6). ORVR consists of an
activated carbon canister installed in the vehicle into which vapors
being expelled from the vehicle fuel tanks are forced to flow. There
the vapors are captured by the activated carbon in the canister. When
the engine is started, the vapors are drawn off of the activated carbon
and into the engine where they are burned as fuel. EPA promulgated ORVR
standards on April 6, 1994, 59 FR 16262.
EPA first began the phase-in of ORVR by requiring that 40 percent
of passenger cars manufactured in model year 1998 be equipped with
ORVR. The ORVR requirement for passenger cars was increased to 100
percent by model year 2000. Phase-in continued for other vehicle types
and ORVR has been a requirement on virtually all new gasoline-powered
motor vehicles (passenger cars, light trucks, and complete \6\ heavy-
duty gasoline powered vehicles under 10,000 lbs gross vehicle weight
rating (GVWR)) sold since model year 2006. See 40 CFR part 86.
Currently, ORVR-equipped vehicles comprise approximately 64 percent of
the in-service vehicle fleet nationwide, and account for around 74
percent of the vehicle miles traveled (VMT) in the nationwide fleet.
The percentage of non-ORVR vehicles and the percentage of VMT driven by
those vehicles declines each year as these older vehicles wear out and
are removed from service. Since certain vehicles are not required to
have ORVR, including motorcycles and incomplete heavy-duty gasoline
powered trucks chassis, under current requirements the nationwide motor
vehicle fleet would never be entirely equipped with ORVR.
---------------------------------------------------------------------------
\6\ For purposes of ORVR applicability, a ``complete'' vehicle
means a vehicle that leaves the primary manufacturer's control with
its primary load carrying device or container attached.
---------------------------------------------------------------------------
Recently, EPA proposed criteria for determining whether ORVR is in
``widespread use'' for purposes of controlling motor vehicle refueling
emissions throughout the motor vehicle fleet. See 76 FR 41731 (July 15,
2011). In EPA's July 15, 2011 action, EPA also proposed, based on the
proposed criteria, to establish June 30, 2013 as the date on which
``widespread use'' will occur nationally, and to establish June 30,
2013 as the date on which a nationwide waiver of Stage II gasoline
vapor recovery systems will be effective. While, if finalized as
proposed, our July 15, 2011 proposal would establish a nationwide date
for determining when ORVR is in ``widespread use'' and for waiving the
Stage II requirement, it also proposes to allow individual states to
submit SIP revisions that demonstrate that ORVR widespread use has
occurred (or will occur) on a date earlier than June 30, 2013 for areas
in their states, and to request that the EPA revise or waive the
section 182(b)(3) requirement as it applies to only those areas. See 76
FR at 41733. Consistent with EPA's July 15, 2011 proposal to allow
States to submit such SIP revisions, EPA is today proposing to approve
an area-specific revision to the Arizona SIP and to approve a waiver
for a specific portion of the motor vehicle fleet in the Phoenix
metropolitan area.
D. What is the purpose of the submitted SIP revision?
Under the Clean Air Act, as amended in 1990, the ``Phoenix area,''
defined by the Maricopa Association of Governments' (MAGs') urban
planning area boundary (but later revised to exclude the Gila River
Indian Community at 70 FR 68339 (November 10, 2005)), was classified as
a ``moderate'' nonattainment area for the 1-hour ozone national ambient
air quality standard (NAAQS). See 56 FR 56694, at 56717 (November 6,
1991). Later, the Phoenix area was reclassified as ``serious'' for the
1-hour ozone standard (62 FR 60001, November 6, 1997).
As noted above, section 182(b)(3) of the Act required States with
ozone nonattainment areas such as the Phoenix area to adopt and submit
a SIP revision requiring gasoline dispensing facilities to install and
operate stage II vapor recovery equipment. In response, in 1993, ADEQ
submitted the statutory provisions and rules establishing stage II
vapor recovery requirements in the Phoenix area, the only area in
Arizona subject to section 182(b)(3) of the Act. In May 1994, ADEQ
submitted amended
[[Page 61065]]
stage II vapor recovery rules, which EPA then approved later that year.
See 59 FR 54521 (November 1, 1994).
More recently, the Arizona Legislature has amended the relevant
statutes (1) to require ADWM to adopt rules to enhance compliance with
the stage II vapor recovery requirements, (2) to explicitly exclude
``E85'' from the definition of ``gasoline,'' and (3) to extend the
geographic area to which stage II vapor recovery requirements apply to
``area A.'' \7\ Since our approval of the stage II vapor recovery rules
in 1994, ADWM has renumbered and recodified its gasoline vapor recovery
rules and amended them to enhance compliance with the requirements. The
purpose of ADEQ's September 21, 2009 SIP revision is to incorporate the
statutory and regulatory changes described above into the Arizona SIP.
---------------------------------------------------------------------------
\7\ EPA most recently approved the definition of ``area A'' as
part of the Arizona SIP in 2004. See 69 FR 10161 (March 4, 2004).
---------------------------------------------------------------------------
EPA's ``Technical Support Document for EPA's Notice of Proposed
Rulemaking on Revisions to the Arizona State Implementation Plan''
(August 2011) (TSD) has more information about the statutory provisions
and rules and our evaluation, and can be found in the docket for this
action.
II. EPA's Evaluation and Action
A. How is EPA evaluating the statutes and rules?
Since 1994, when EPA last approved Arizona's stage II vapor
recovery rules, EPA has designated a larger area referred to the
``Phoenix-Mesa'' area as nonattainment for the 1997 8-hour ozone
standard (69 23858, April 30, 2004),\8\ approved the State's 1-hour
ozone redesignation request and maintenance plan for the Phoenix area
(70 FR 34362, June 14, 2005), and revoked the 1-hour ozone standard
(replaced by the 1997 8-hour ozone standard) effective June 15, 2005
(69 FR 23951, April 30, 2004). Notwithstanding the redesignation of the
Phoenix area and the revocation of the 1-hour ozone standard, the
Phoenix area remains subject to the CAA section 182(b)(3) stage II
requirement by virtue of its classification as ``serious'' for the 1-
hour ozone standard on the effective date of the area's designation as
``nonattainment'' for the 8-hour ozone standard (i.e., on June 15,
2004) under the anti-backsliding provisions of EPA's rules governing
the transition from the 1-hour to the 8-hour ozone standard. See 40 CFR
51.905(a). Thus, we have evaluated the submitted statutory provisions
and rules to ensure Arizona's stage II program complies with section
182(b)(3) of the Act. In addition, we have evaluated the submitted
statutory provisions and rules for enforceability (see CAA section
110(a)(2)), and for non-interference with reasonable further progress
or attainment of the NAAQS (see CAA section 110(l)).
---------------------------------------------------------------------------
\8\ In 2009, EPA proposed to classify the Phoenix-Mesa
nonattainment area as ``marginal'' for the 1997 8-hour ozone
standard. See 74 FR 2936 (January 16, 2009). EPA has not taken final
action on the January 2009 proposed rule.
---------------------------------------------------------------------------
Guidance and policy documents that we used to evaluate the
submitted statutory provisions and rules for enforceability and
compliance with CAA section 182(b)(3) stage II vapor requirement
requirements include the following:
1. ``Issues Relating to VOC Regulation Cutpoints, Deficiencies, and
Deviations,'' EPA, May 25, 1988 (the Bluebook).
2. ``Guidance Document for Correcting Common VOC & Other Rule
Deficiencies,'' EPA Region 9, August 21, 2001 (the Little Bluebook).
3. ``Draft Model Rule, Gasoline Dispensing Facility--Stage II Vapor
Recovery,'' EPA (August 17, 1992).
4. ``Gasoline Vapor Recovery Guidelines,'' EPA Region IX (April 24,
2000).
5. ``Removal of Stage II Vapor Recovery in Situations Where
Widespread Use of Onboard Vapor Recovery is Demonstrated,'' memorandum
from Stephen D. Page, Director, EPA Office of Air Quality Planning and
Standards, and Margo Tsirigotis Oge, Director, EPA Office of
Transportation and Air Quality, to Regional Air Division Directors,
dated December 12, 2006 (``2006 Page/Oge Memorandum'').\9\
---------------------------------------------------------------------------
\9\ In EPA's recent national rulemaking regarding waiver of
Stage II requirements, we indicate that the Agency continues to
believe the 2006 Page/Oge Memorandum is sound guidance in areas
where Stage II is currently being implemented, and is unaffected by
the proposed national widespread use determination. See 76 FR 41731,
at 41737 (July 15, 2011). In today's action, we rely primarily on
the principles and rationale set forth in the 2006 Page/Oge
Memorandum rather than those set forth in EPA's July 15, 2011
proposed rule.
---------------------------------------------------------------------------
6. ``Removal of Stage II Vapor Recovery from Refueling of Corporate
Fleets,'' memorandum from Stephen D. Page, Director, EPA Office of Air
Quality Planning and Standards, and Margo Tsirigotis Oge, Director, EPA
Office of Transportation and Air Quality, to Regional Air Division
Directors, dated November 28, 2007 (``2007 Page/Oge Memorandum'').
All of the above documents can be found in the docket for this
rulemaking.
B. Do the statutes and rules meet the evaluation criteria?
1. Clean Air Act Requirements
As discussed in section I.C. of this document, CAA section
182(b)(3) requires States with ozone nonattainment areas classified as
``moderate'' or worse to adopt regulations requiring owners or
operators of gasoline dispensing systems to install and operate stage
II vapor recovery equipment at their facilities. The Act specifies that
these State rules must apply to any facility that dispenses more than
10,000 gallons of gasoline per month, or, in the case of an independent
small business marketer (as defined in CAA section 324), any facility
that dispenses more than 50,000 gallons of gasoline per month.
Section 202(a)(6) of the Act required EPA to promulgate standards
requiring that new light-duty vehicles be equipped with onboard
refueling vapor recovery (ORVR) systems. ORVR regulations were
promulgated by EPA on April 6, 1994 (see 59 FR 16262, 40 CFR 86.001 and
40 CFR 86.098). Upon promulgation of the ORVR rules, under CAA section
202(a)(6) the stage II requirement of section 182(b)(3) no longer
applied to moderate areas, but only to serious and worse areas. Since
model year 2000, all passenger cars have been required to have ORVR,
and since 2006, virtually all new gasoline powered motor vehicles
(passenger cars, light trucks, and complete heavy-duty gasoline powered
vehicles) have been required to be equipped with ORVR.
The CAA anticipates that, over the long-term, ORVR will reduce the
benefit from, and the need for, stage II vapor recovery systems at
gasoline dispensing sites in ozone nonattainment areas. Section
202(a)(6) of the CAA allows EPA to revise or waive the application of
stage II vapor recovery requirements for areas classified as serious,
severe, or extreme for ozone, as appropriate, after such time as EPA
determines that ORVR systems are in widespread use throughout the motor
vehicle fleet. CAA section 202(a)(6) does not specify which motor
vehicle fleet must be the subject of a widespread use determination
before EPA may revise or waive the section 182(b)(3) stage II
requirement. Nor does the CAA identify what level of ORVR use in the
motor vehicle fleet must be reached before it is ``widespread.'' To
date, EPA has issued two memoranda addressing when ORVR
[[Page 61066]]
widespread use might be found for particular fleets.\10\
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\10\ ``Removal of Stage II Vapor Recovery in Situations Where
Widespread Use of Onboard Vapor Recovery is Demonstrated,''
memorandum from Stephen D. Page, Director, EPA Office of Air Quality
Planning and Standards, and Margo Tsirigotis Oge, Director, EPA
Office of Transportation and Air Quality, to Regional Air Division
Directors, dated December 12, 2006; and ``Removal of Stage II Vapor
Recovery from Refueling of Corporate Fleets,'' memorandum from
Stephen D. Page, Director, EPA Office of Air Quality Planning and
Standards, and Margo Tsirigotis Oge, Director, EPA Office of
Transportation and Air Quality, to Regional Air Division Directors,
dated November 28, 2007.
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EPA expects the possibility of different rates of implementation of
ORVR across different geographic regions and among different types of
motor vehicle fleets within any region. Given this, EPA does not
believe the CAA section 202(a)(6) must be read narrowly to allow a
widespread use determination and waiver of the stage II requirement for
a given area or area's fleet only if ORVR use has become widespread
through the entire United States, or only if ORVR use has reached a
definite level in each area. Rather, EPA believes that section
202(a)(6) allows the Agency to apply the widespread use criterion to
either the entire motor vehicle fleet in a State or nonattainment area,
or to special segments of the overall fleet for which ORVR use is shown
to be sufficiently high, and to base widespread use determinations on
differing levels of ORVR use, as appropriate. EPA also believes that
the Act allows the Agency to use an area-specific rulemaking approving
a SIP revision to issue the section 202(a)(6) waiver for a relevant
fleet in a nonattainment area.
One metric that EPA has recommended in determining whether ORVR use
is widespread within a given motor vehicle fleet considers when VOC
emissions resulting from the application of ORVR controls alone equal
the VOC emissions when both stage II vapor recovery systems and ORVR
controls are used, after accounting for incompatibility excess
emissions. The incompatibility excess emissions factor relates to
losses in control efficiency when certain types of stage II and ORVR
are used together. EPA believes that one reasonable widespread use
metric based on comparable VOC emissions will likely have been reached
when the percentage of motor vehicles in service with ORVR, the vehicle
miles traveled (VMT) by ORVR-equipped vehicles, or the gasoline
dispensed to ORVR-equipped vehicles reaches 95 percent. See the 2006
Page/Oge Memorandum, page 2. Application of the 95 percent criterion
could lead, for example, to waiver of stage II vapor recovery
requirements at gasoline dispensing sites that exclusively fuel new
automobiles at assembly plants and rental cars at rental car facilities
given the high percentage (essentially 100%) of ORVR-equipped vehicles
associated with such facilities.
2. Arizona's Stage II Vapor Recovery Requirements
Arizona's stage II vapor recovery requirements are set forth in
state law (codified in the Arizona Revised Statutes) and administrative
rules adopted by ADWM (codified in the Arizona Administrative Code).
Arizona Revised Statutes (ARS) section 41-2132 (``Stage I and stage II
vapor recovery systems'') requires gasoline dispensing sites to be
equipped with a stage II vapor collection system. The requirement
applies within ``an ozone nonattainment area designated as moderate,
serious, severe or extreme by the United States environmental
protection agency under Sec. 107(d) of the clean air act, area A or
other geographical area * * *.'' ARS section 41-2132(C). ``Area A'' is
defined in ARS section 49-541 and it includes all of the metropolitan
Phoenix former 1-hour ozone nonattainment area plus additional areas in
Maricopa County to the north, east, and west, as well as small portions
of Yavapai County and Pinal County. ADEQ did not submit ARS section 49-
541 to EPA as part of the stage II vapor recovery SIP update revision
on September 21, 2009, but EPA has previously approved the current
definition of ``area A'' from ARS section 49-541 into the SIP. See 69
FR 10161 (March 4, 2004).
ARS 41-2132 also provides an exemption for gasoline dispensing
sites with a throughput of less than 10,000 gallons per month or less
than 50,000 gallons per month in the case of an independent small
business marketer as defined in section 324 of the Clean Air Act, and
for gasoline dispensing sites that are located on a manufacturer's
proving ground. ARS 41-2133 sets forth certain compliance schedules
related to the stage II vapor recovery requirements in ARS 41-2132.
The stage II vapor recovery requirements in ARS 41-2132 rely upon
the definitions of certain terms, such as ``gasoline,'' ``stage II
vapor collection system,'' and ``E85,'' among others, which are
codified in ARS sections 41-2015, 41-2121, and 41-2131, and ADEQ
included the relevant definitions, along with ARS sections 41-2132 and
41-2133, in the SIP revision submittal dated September 21, 2009. See
table 1 of this document. The definition of ``gasoline,'' which is
codified in paragraph (5) of ARS 41-2121, specifically excludes
``diesel fuel'' and ``E85.''
ARS section 41-2132(G) directs ADWM to adopt by rule standards for
the installation and operation of stage I and stage II vapor recovery
systems. ADWM's rules for such systems are codified at title 20,
chapter 2, article 9 (``Gasoline Vapor Recovery''), of the Arizona
Administrative Code (AAC). These rules rely upon certain definitions in
AAC, title 20, chapter 2, article 1 (``Administration and
Procedures''), section R20-2-101 (``Definitions''). ADEQ submitted
these rules and definition to EPA as part of the stage II SIP revision
dated September 21, 2009--see table 2 of this document.
We previously approved ADWM's stage II vapor recovery rules (59 FR
54521, November 1, 1994), and in so doing, found them to comply with
CAA section 182(b)(3), to be consistent with EPA guidance on stage II
vapor recovery regulations, and to be enforceable. Thus, our action
today is based on an evaluation of the changes in ADWM's rules as
submitted on September 21, 2009 relative to those that were approved in
1994 and that are incorporated into the existing Arizona SIP.
In addition to renumbering and recodification, ADWM's vapor
recovery rules have been amended to delete, modify, and add certain
definitions; to approve use of certain CARB test procedures not
previously approved; to include general requirements for stage I vapor
recovery systems; to add exemptions for motor raceways, motor vehicle
proving grounds, and marine and aircraft refueling facilities; to
clarify and expand application requirements; and to enhance compliance-
related provisions.
3. Compliance With CAA Section 182(b)(3) Stage II Requirements
As explained in this subsection, based on our review of Arizona's
stage II requirements set forth in certain statutes and administrative
rules, we conclude that the state meets the CAA section 182(b)(3) stage
II requirements. First, the state is requiring stage II vapor recovery
controls in an area that encompasses all of the 1-hour ozone
``serious'' nonattainment area consistent with compliance schedules set
forth in the Act. The state also provides low-volume throughput
exemptions that are consistent with those allowed for in CAA section
182(b)(3). State law, however, also provides an exemption for a
``gasoline dispensing site that is
[[Page 61067]]
located on a manufacturer's proving ground.'' See ARS 41-2132(C). This
exemption is not specifically allowed under CAA section 182(b)(3);
however, ADWM indicates that the one facility to which the exemption
had applied has closed at its location within the nonattainment area,
and the equipment has been removed to a new location outside of the
nonattainment area.\11\ Furthermore, ADWM reports that, at the
facility's new location, the fuel throughput is less than the low-
throughput (i.e., 10,000-gallon per month) threshold exemption
authorized in section 182(b)(3). Assuming that the fuel usage rate at
the relocated facility is representative of the throughput at gasoline
dispensing sites that would be covered by the State's exemption for
manufacturer's proving ground in the event that such an exempt facility
would locate once again within the nonattainment area, the exemption is
acceptable under section 182(b)(3).
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\11\ The information concerning the application of the exemption
for gasoline dispensing sites located on a manufacturers' proving
ground is contained in a letter from Duane M. Yantorno, Director,
Transportation Fuels and Air Quality Program, Arizona Department of
Weights and Measures, to Andrew Steckel, Chief, Rules Office, Air
Division, EPA Region IX, dated August 1, 2011.
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Because the state submitted the definition of ``gasoline'' in ARS
41-2121 for our approval as part of the September 21, 2009 SIP
revision, we must consider whether the exclusion in ARS 41-2121 of
``E85'' from the definition of gasoline comports with section 182(b)(3)
vapor recovery requirements. By excluding ``E85'' from the definition
of gasoline, Arizona's stage II vapor recovery law (ARS 41-2132) would
not apply to E85 dispensing pumps within the ozone nonattainment area.
E85 is a motor vehicle fuel that is a blend of as little as 15
percent gasoline and up to 85 percent ethanol. (In wintertime
applications, the ratio may be 30 percent gasoline and 70 percent
ethanol.) E85 can only be used in specially designed flexible fuel
vehicles (FFVs), which have mostly been manufactured since 1998. Since
these are newer vehicles, most of them are equipped with ORVR, and
every FFV built today has ORVR. Thus, most vehicles refueling at E85
dispensing pumps are already having their evaporative emissions
captured, as in the cases of late model rental cars refueling at rental
car facilities and newly manufactured cars being fueled for the first
time at automobile assembly plants. At the time EPA released the 2006
Page/Oge Memorandum, EPA estimated that 59 percent of FFVs in use
nationwide were equipped with ORVR, and we noted that the percentage of
FFVs with ORVR will continue to climb as older vehicles are taken out
of service and new models join the fleet. We also noted that the
percentage of FFVs equipped with ORVR varies across different ozone
nonattainment areas. In the Phoenix metropolitan area, ADWM estimates,
based on a vehicle database for 2008 provided by the Arizona Department
of Transportation's Motor Vehicle Division, that approximately 87
percent of FFVs in the Phoenix metropolitan area are equipped with
ORVR.\12\ Given how close the ORVR-equipped percentage for FFVs in the
Phoenix metropolitan area (87 percent in 2008 and climbing) is to the
ORVR widespread use threshold based on comparable VOC emissions (95
percent), discussed above, we conclude that ORVR is in widespread use
in the FFV vehicle fleet in the Phoenix metropolitan area for the
purposes of CAA section 202(a)(6) so long as the change in emissions
due to use of E85 does not interfere with attainment and RFP of any of
the NAAQS. As discussed in section II.B.4 of this document, we conclude
that allowing for greater use of ethanol (by amending the definition of
``gasoline'' to exclude E85) in the Phoenix metropolitan area would not
interfere with attainment and RFP of any of the NAAQS, and thus, under
CAA section 202(a)(6), we propose to waive the stage II vapor recovery
requirements for E85 dispensing pumps in the Phoenix metropolitan area.
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\12\ The information on the percentage of FFVs in the Phoenix
metropolitan area that are ORVR-equipped is from a report titled
``Widespread Use Analysis for E85 Stage II Waiver Request,'' sent to
EPA by Duane M. Yantorno, Director, Transportation Fuels and Air
Quality Programs, ADWM, via email on October 25, 2010.
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As noted above, in general, ADWM's revisions clarify and improve
the existing stage II vapor recovery rules that we previously approved.
The only significant changes potentially affecting approvability with
respect to CAA section 182(b)(3) are the new exemptions for motor
raceways, and for marine and aircraft refueling facilities.
ADWM has provided us information concerning the dispensing of
gasoline at the one motor raceway, the Phoenix International Raceway,
to which the exemption applies.\13\ At the Phoenix International
Raceway, two types of fuel activities occur: the first is the fueling
for service vehicles, and the second is the fueling for race cars
during the racing event. According to the information provided ADWM by
the facility, approximately 8,000 gallons of gasoline per year are
dispensed at this facility for service vehicles, which is far below the
10,000-gallon per month low-throughput threshold exemption in CAA
section 182(b)(3). Thus, as applied to service vehicles, the exemption
for gasoline dispensing sites at motor raceways is acceptable.
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\13\ The information concerning the application of the exemption
for motor raceways in the Phoenix metropolitan area is contained in
a letter from Duane M. Yantorno, Director, Transportation Fuels and
Air Quality Program, Arizona Department of Weights and Measures, to
Andrew Steckel, Chief, Rules Office, Air Division, EPA Region IX,
dated August 1, 2011.
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The facility's fixed gasoline dispensers, which are used to fuel
service vehicles, are not used for race car fueling. Instead, for race
events, the fuels are special blends that are trucked into the facility
by the supplier and dispensed from a mobile truck into gas cans to be
used during the racing event. We believe it is reasonable to interpret
CAA section 182(b)(3) as applying to ``motor vehicles'' as defined in
CAA section 216(2) (``As used in this part, * * * (2) The term ``motor
vehicle'' means any self-propelled vehicle designed for transporting
persons or property on a street or highway''), and as such, the motor
raceway exemption as it applies to refueling of race cars, which are
not designed for street or highway use, is acceptable under section
182(b)(3). The same is also true for the exemption for marine and
aircraft refueling facilities, which refuel mobile sources that clearly
are not motor vehicles as defined in CAA section 216(2). In sum, for
the reasons stated above, the new exemptions in ADWM's Stage II vapor
recovery rules for motor raceways, and for marine and aircraft
refueling facilities are acceptable.
4. Compliance With CAA Section 110(l)
Under CAA section 110(l), EPA must not approve a SIP revision if
the revision would interfere with any applicable requirement concerning
reasonable further progress (RFP) and attainment of any of the NAAQS or
any other applicable requirement under the Act. With respect to this
SIP revision, we find that the only potentially significant adverse
effect on emissions and, thus, potential for interference stems from
the exclusion of E85 from the definition of ``gasoline'' in ARS 41-
2121, which would allow for increased use of E85 (by FFVs) as a motor
fuel in the Phoenix metropolitan area, and the relative difference in
emissions from FFVs using E85 relative to the same vehicles using the
specially formulated gasoline (referred to as ``Arizona Cleaner Burning
Gasoline,'' or ``Arizona CBG'')
[[Page 61068]]
otherwise required.\14\ (Arizona CBG is a boutique fuel established to
reduce vehicle emissions in the Phoenix metropolitan area and to help
meet CAA air quality planning requirements.) The gasoline portion of
E85 must continue to meet the specifications for Arizona CBG pursuant
to AAC R20-2-718(B).
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\14\ EPA's guidance for States in developing their Stage II SIPs
in the early 1990s suggested that States use the same definition of
``gasoline'' as the one found in EPA's Standard of Performance for
Bulk Gasoline Terminals at 40 CFR 60.501, which includes ``any
petroleum distillate or petroleum distillate/alcohol blend having a
Reid vapor pressure of 27.6 kilopascals or greater which is used as
a fuel for internal combustion engines.'' EPA recommended using this
definition to most broadly reach situations in which refueling of
motor vehicles results in evaporative VOC emissions that contribute
to ozone nonattainment concentrations, and to avoid a narrow
interpretation of what is ``gasoline'' that would allow significant
VOC emissions from motor vehicle refueling activities in
nonattainment areas to go uncontrolled.
In the existing SIP, Arizona includes a definition of
``gasoline,'' AAC R4-31-901(5), that is consistent with the NSPS
definition. The SIP revision for which we are proposing approval in
today's action would replace the existing SIP definition of
``gasoline'' from Arizona's rules for gasoline vapor recovery (AAC
title 20, chapter 2, article 9) with the definition of ``gasoline''
from Arizona's statutes governing motor fuel (ARS section 41-
2121(5)). The definition of ``gasoline'' in ARS section 41-2121(5)
is as inclusive as the existing SIP definition in AAC R4-31-901(5),
except for the explicit exclusion of E85. Given that E85 can only be
used by FFVs, and based on our proposed ``widespread use''
determination with respect to the FFV fleet in the Phoenix area that
would be fueled at E85 dispensing pumps, we find the exception for
E85 from the definition of ``gasoline'' acceptable under section
182(b)(3). Moreover, to allow for the distribution and sale of E85
in the Phoenix area, a change in the term of ``gasoline'' (to
exclude E85) for stage II vapor recovery purposes alone would not
have sufficed. Because of the boutique fuel requirements of Arizona
CBG that have been approved into the Arizona SIP, a change in the
definition of ``gasoline'' as a motor fuel (to exclude E85) was also
necessary.
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We would normally look to EPA's motor vehicle emissions model (the
most recent of which is ``MOVES2010'') to estimate changes in vehicle
emissions resulting from combustion of different fuel types, but
MOVES2010 is only designed to estimate the effects of ethanol in
gasoline up to 10% by volume, and thus is not capable of estimating
vehicle emissions using E85. (EPA is planning on evaluating recently
completed and ongoing studies using E85 this year in order to add an
E85 option to the next version of MOVES.) However, we did review a
recently published study in the Journal of the Air & Waste Management
Association titled ``Effect of E85 on Tailpipe Emissions from Light-
Duty Vehicles \15\'' (herein, the ``E85 Vehicle Emissions Study''),
which provides us with insight into the potential emissions effects.
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\15\ Janet Yanowitz and Robert L. McCormick, ``Effect of E85 on
Tailpipe Emissions from Light-Duty Vehicles,'' Journal of the Air &
Waste Management Association, Volume 59, February 2009, pages 172-
182.
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The E85 Vehicle Emissions Study compiled the results from previous
published studies but also analyzed a significantly larger database
compiled by EPA for vehicle certification purposes. Though the results
vary by pollutant and between ``tier 1'' (i.e., model year (MY) 1994-
2003) and ``tier 2'' (MY 2004-2008) vehicles, in general, the study
suggests that FFVs emit fewer oxides of nitrogen (NOX),
carbon monoxide, and particulate matter (PM) relative to the same FFVs
using gasoline. However, with respect to VOCs, FFVs may well emit
greater VOCs than the same FFVs using gasoline [based on the
measurement results for non-methane organic gases (NMOGs)].\16\
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\16\ Ethanol itself contains no lead (Pb) or sulfur, but the
ethanol portion of E85 does contain some Pb and sulfur due to the
addition of a denaturant, which can comprise up to 5% of the ethanol
portion of E85. The denaturant used by ethanol producers is
typically gasoline (either RFG or conventional gasoline, depending
on where the ethanol plant is located), which has sulfur and Pb
specifications similar to those for CBG. Therefore, a gallon of E85
would have less sulfur and Pb than a gallon of CBG (due to the
dilution provided by the ethanol), and thus the emissions of sulfur
dioxide and Pb from use of E85 in FFVs would be less than the
corresponding emissions from use of CBG in those vehicles.
Therefore, there would be no interference with RFP or attainment of
the Pb and sulfur dioxide NAAQS.
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Thus, with respect to nitrogen dioxide, carbon monoxide and
particulate matter, because emissions using E85 would be lower than
those using CBG, the incremental substitution of CBG with E85 would not
interfere with RFP or attainment of the ambient standards for those
pollutants.
We also believe that the net effect on ozone conditions in the
Phoenix 8-hour ozone nonattainment area would be beneficial despite the
potential higher VOC emission rate by E85-fueled FFVs (relative to CBG-
fueled FFVs) because of the offsetting effect of NOX
emissions reductions (from use of E85 relative to Arizona CBG) and
because of the extension of Stage II vapor recovery requirements to
``Area A,'' an area that is larger than the area formerly designated as
nonattainment for the 1-hour ozone standard and that includes the fast-
growing region west of the City of Phoenix.\17\
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\17\ As submitted in 1993, ARS section 41-2132(C) established
the stage II vapor recovery requirement within the ozone
nonattainment area, but the current version of this statute, which
is included in today's proposed approval, extends the requirement to
``Area A.''
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Therefore, we have determined that this SIP revision, including the
change in the definition of ``gasoline'' to exclude ``E85,'' would not
interfere with RFP and attainment for any of the NAAQS.
C. Correction of Previous Rulemaking
On November 1, 1994, we took direct final action to approve the
administrative rules adopted by the Arizona Department of Weights and
Measures providing for the installation and operation of stage II vapor
recovery systems. 59 FR 54521, November 1, 1994. We incorporated the
approved rules into the Arizona SIP by adding a new paragraph (69) to
40 CFR 52.120(c), which reads: ``Maricopa County Bureau of Air
Pollution Control stage II vapor recovery program, adopted on August
27, 1993.'' The descriptive reference in paragraph (69) was erroneous
in that administrative rules governing the vapor recovery program in
the Phoenix metropolitan area in Maricopa County, and adopted on August
27, 1993, were adopted by the Arizona Department of Weights and
Measures, not the Maricopa County Bureau of Air Pollution Control
(since renamed the Maricopa County Air Quality Department). Moreover,
the descriptive reference to the vapor recovery program alone does not
inform the public and regulated community that our approval relates to
specific rules, and thus is potentially confusing to the public and
regulated community as to the contents of the SIP.
We are therefore, under section 110(k)(6) and 301(a) of the Clean
Air Act,\18\ proposing to correct our previous codification of our
approval of the stage II vapor recovery rules adopted by ADWM on August
27, 1993, and submitted by ADEQ on May 27, 1994, to identify the
appropriate regulatory agency and to identify the specific rules that
were approved.
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\18\ Section 110(k)(6) of the CAA provides that, whenever EPA
determines that the Agency's action approving, disapproving, or
promulgating any plan or plan revision, area designation,
redesignation, classification, or reclassification was in error, EPA
may in the same manner as the approval, disapproval, or promulgation
revise such action as appropriate without requiring any further
submission from the State. Section 301(a) of the CAA authorizes EPA
to prescribe such regulations as are necessary to carry out the
Agency's functions under the CAA.
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III. Proposed Action and Request for Public Comment
As authorized in section 110(k)(3) of the Act, EPA is proposing to
approve the statutory provisions and updated administrative rules
establishing certain vapor recovery requirements in the Phoenix
metropolitan area as a revision to the Arizona SIP. Specifically, we
are proposing to approve Arizona Revised Statutes (ARS) sections listed
in table 1
[[Page 61069]]
of this document and the Arizona Administrative Code (AAC) sections
listed in table 2 of this document.\19\ Second, as authorized under CAA
section 202(a)(6), we are proposing to waive the stage II vapor
recovery requirements at E85 dispensing pumps in the Phoenix area under
CAA section 202(a)(6) based on our conclusion that ORVR is in
widespread use among the FFVs that use such facilities.
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\19\ Our proposed approval of the statutory provisions and
administrative rules would supersede the previously-approved
versions of the administrative rules in the Arizona SIP (i.e., AAC
Article 9 (``Gasoline Vapor Control''), Rules R4-31-901 through R4-
31-910, adopted by the Arizona Department of Weights and Measures on
August 27, 1993, submitted on May 27, 1994, and approved on November
1, 1994 (59 FR 54521).
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In so doing, we propose to conclude that the submitted statutory
provisions and updated administrative rules meet the related
requirements for stage II vapor recovery under CAA section 182(b)(3)
and would not interfere with attainment and RFP of any of the NAAQS or
any other CAA applicable requirement, consistent with the requirements
of CAA section 110(l). Final EPA approval of the updated statutory
provisions and rules and incorporation of them into the Arizona SIP
would make them federally enforceable.
Lastly, under section 110(k)(6) and 301(a) of the CAA, we are
proposing to correct and clarify the incorporation of the previous
version of these administrative rules into the Arizona SIP.
We will accept comments from the public on this proposed approval
for the next 30 days.
IV. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve State
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely proposes to approve State law as
meeting Federal requirements and does not impose additional
requirements beyond those imposed by State law. For that reason, this
proposed action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993) given the limited nature of this
SIP revision (as to geographic scope and vehicle applicability);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
Does not provide EPA with the discretionary authority to
address disproportionate human health or environmental effects with
practical, appropriate, and legally permissible methods under Executive
Order 12898 (59 FR 7629, February 16, 1994).
In addition, this proposed rule does not have tribal implications
as specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the State, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Ozone, Reporting and recordkeeping requirements, Volatile
organic compounds.
Dated: September 19, 2011.
Keith Takata,
Acting Regional Administrator, Region IX.
[FR Doc. 2011-25397 Filed 9-30-11; 8:45 am]
BILLING CODE 6560-50-P
