Approval and Promulgation of Implementation Plans; Arizona; Update to Stage II Gasoline Vapor Recovery Program; Change in the Definition of “Gasoline” To Exclude “E85”, 35279-35285 [2012-14148]

Download as PDF 35279 Federal Register / Vol. 77, No. 114 / Wednesday, June 13, 2012 / Rules and Regulations § 52.1620 Identification of plan. * * * * (c) * * * * EPA-APPROVED NEW MEXICO REGULATIONS State citation State approval/effective date Title/subject EPA approval date Comments New Mexico Administrative Code (NMAC) Title 20—Environment Protection Chapter 2—Air Quality * Part 66 ............................... * * * * * Cotton Gins ....................... * * * * 4/7/2005 ............................ * * * 6/13/2012 [Insert FR page number where document begins]. * * approved and incorporated by reference into the Arizona State Implementation Plan. * [FR Doc. 2012–14154 Filed 6–12–12; 8:45 am] BILLING CODE 6560–50–P Effective Date: This rule is effective on July 13, 2012. DATES: ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R09–OAR–2010–0717; FRL 9661–3] Approval and Promulgation of Implementation Plans; Arizona; Update to Stage II Gasoline Vapor Recovery Program; Change in the Definition of ‘‘Gasoline’’ To Exclude ‘‘E85’’ Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: Under the Clean Air Act, EPA is taking final action to approve certain revisions to the Arizona State Implementation Plan submitted by the Arizona Department of Environmental Quality. These revisions concern amendments to the statutory and regulatory provisions adopted by the State of Arizona to regulate volatile organic compound emissions from the transfer of gasoline from storage tanks to motor vehicle fuel tanks at gasoline dispensing sites, i.e., stage II vapor recovery. The revisions also amend the definition of ‘‘gasoline’’ to explicitly exclude E85 and thereby amend the requirements for fuels available for use in the Phoenix metropolitan area as well as the requirements for vapor recovery. In approving the revisions, EPA is taking final action to waive the statutory stage II vapor recovery requirements at E85 dispensing pumps within the Phoenix metropolitan area. Lastly, EPA is taking final action to correct an EPA rulemaking that approved a previous version of the Arizona rules regulating these sources and to thereby identify the appropriate regulatory agency and specific rules that were previously erowe on DSK2VPTVN1PROD with RULES SUMMARY: VerDate Mar<15>2010 12:20 Jun 12, 2012 Jkt 226001 EPA has established docket number EPA–R09–OAR–2010–0717 for this action. The index to the docket is available electronically at www.regulations.gov and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may not be publicly available in either location (e.g., Confidential Business Information). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section. ADDRESSES: For further information on the revisions to the Arizona State Implementation Plan submitted by the Arizona Department of Environmental Quality, contact Mr. Andrew Steckel, EPA Region IX, 75 Hawthorne Street (AIR–4), San Francisco, CA 94105, phone number (415) 947–4115, fax number (415) 947– 3579, or by email at steckel.andrew@epa.gov. FOR FURTHER INFORMATION CONTACT: SUPPLEMENTARY INFORMATION: Throughout this document, ‘‘we,’’ ‘‘us,’’ and ‘‘our’’ refer to EPA. Table of Contents I. EPA’s Proposed Action A. The State’s Submittal B. Regulatory Context C. EPA’s Evaluation of SIP Submittal and Proposed Action D. Proposed Correction of Previous Rulemaking II. Public Comments and EPA Responses III. Final Action IV. Statutory and Executive Order Reviews PO 00000 Frm 00035 Fmt 4700 Sfmt 4700 * * * I. EPA’s Proposed Action A. The State’s Submittal On October 3, 2011 (76 FR 61062), we proposed to approve a revision to the Arizona State Implementation Plan (SIP) submitted to EPA on September 21, 2009 by the Arizona Department of Environmental Quality (ADEQ). The purpose of the SIP revision is to update the gasoline vapor recovery program that was originally submitted and approved by EPA in 1994 to meet certain applicable requirements of the Clean Air Act, as amended in 1990 (CAA or ‘‘Act’’).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 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 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. E:\FR\FM\13JNR1.SGM 13JNR1 35280 Federal Register / Vol. 77, No. 114 / Wednesday, June 13, 2012 / Rules and Regulations 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,’’ 4 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. In our October 3, 2011 proposed rule, we concluded that ADEQ’s September 21, 2009 SIP revision submittal contains adequate documentation of public notice, opportunity for comment, and a public hearing on the proposed SIP revision (see enclosure 5 of the submittal) and that the public participation materials submitted by ADEQ demonstrate compliance with the procedural requirements set forth in section 110(l) of the CAA. 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 approving in today’s action. TABLE 1—SUBMITTED STATUTORY PROVISIONS Arizona revised statutes Title Title 41, chapter 15, article 1, section 41–2051 .......................... Definitions: subsection 6 (‘‘Certification’’), subsection 10 (‘‘Department’’), subsection 11 (‘‘Diesel fuel’’), subsection 12 (‘‘Director’’), and subsection 13 (‘‘E85’’). Definitions: subsection 5 (‘‘Gasoline’’) ........................................ 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 ............................. Compliance schedules ................................................................ Title 41, chapter 15, article 6, section 41–2121 .......................... Title 41, chapter 15, article 7, section 41–2131 .......................... 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 09/21/09 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 erowe on DSK2VPTVN1PROD with RULES Under Arizona law, the principal stage II vapor recovery requirements are found in Arizona Revised Statutes (ARS) section 41–2132 (‘‘Stage I and stage II vapor recovery systems’’), which requires gasoline dispensing sites to be equipped with a stage II vapor collection system within ‘‘an ozone nonattainment area designated as moderate, serious, severe or extreme by the United States environmental protection agency under § 107(d) of the clean air act, area A or other geographical area * * *.’’ ARS section 41–2132(C). ‘‘Area A’’ is defined in ARS section 49–541 and it includes all of the metropolitan Phoenix former 1-hour ozone nonattainment area plus additional areas in Maricopa County to the north, east, and west, as well as small portions of Yavapai County and Pinal County. ARS 41–2132 also provides an exemption for gasoline dispensing sites with a throughput of less than 10,000 gallons per month or less than 50,000 gallons per month in the case of an independent small business marketer as defined in section 324 of the CAA, and for gasoline dispensing sites that are located on a manufacturer’s proving ground. ARS 41–2133 sets forth certain compliance schedules related to the stage II vapor recovery requirements in ARS 41–2132. 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. 4 E85 is a motor vehicle fuel that is a blend of as little as 15 percent gasoline and up to 85 percent ethanol. (In wintertime applications, the ratio may be 30 percent gasoline and 70 percent ethanol.) E85 can only be used in specially designed FFVs, which 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. VerDate Mar<15>2010 12:20 Jun 12, 2012 Jkt 226001 PO 00000 Frm 00036 Fmt 4700 Sfmt 4700 E:\FR\FM\13JNR1.SGM 13JNR1 erowe on DSK2VPTVN1PROD with RULES Federal Register / Vol. 77, No. 114 / Wednesday, June 13, 2012 / Rules and Regulations The stage II vapor recovery requirements in ARS 41–2132 rely upon the definitions of certain terms, such as ‘‘gasoline,’’ ‘‘stage II vapor collection system,’’ and ‘‘E85,’’ among others, which are codified in ARS sections 41– 2015, 41–2121, and 41–2131, and ADEQ included the relevant definitions, along with ARS sections 41–2132 and 41– 2133, in the SIP revision submittal dated September 21, 2009. See table 1 of this document. The definition of ‘‘gasoline,’’ which is codified in paragraph (5) of ARS 41–2121, specifically excludes ‘‘diesel fuel’’ and ‘‘E85.’’ ARS section 41–2132(G) directs the Arizona Department of Weights and Measures (ADWM) to adopt rules that establish standards for the installation and operation of stage I and stage II vapor recovery systems. In 1994, EPA approved an earlier version of ADWM’s rules for stage II vapor recovery. See 59 FR 54521 (November 1, 1994). Since then, in addition to renumbering and recodifying the rules, ADWM has amended the vapor recovery rules to delete, modify, and add certain definitions; to approve use of certain new test procedures developed by the California Air Resources Board (CARB); to include general requirements for stage I vapor recovery systems; to add exemptions for motor raceways, motor vehicle proving grounds, and marine and aircraft refueling facilities; to clarify and expand application requirements; and to enhance compliance-related provisions. ADWM’s rules for such systems are now codified at title 20, chapter 2, article 9 (‘‘Gasoline Vapor Recovery’’), of the Arizona Administrative Code (AAC). These rules rely upon certain definitions in AAC, title 20, chapter 2, article 1 (‘‘Administration and Procedures’’), section R20–2–101 (‘‘Definitions’’). ADEQ submitted these rules and definitions to EPA as part of the stage II SIP revision dated September 21, 2009—see table 2 of this document. In our October 3, 2011 proposed rule, we also explained that in our 1994 final rule approving an earlier version of ADWM’s vapor recovery rules, we made an error in how we codified the stage II vapor recovery rules into the Arizona SIP, and were thus proposing to correct that error. Please see our October 3, 2011 proposed rule at pages 61063 and 61064 for additional information on these topics. B. Regulatory Context Under CAA section 182(b)(3), stage II vapor recovery systems are required to be used at larger gasoline dispensing VerDate Mar<15>2010 12:20 Jun 12, 2012 Jkt 226001 facilities located in Serious, Severe, and Extreme nonattainment areas for ozone.5 More specifically, the Act specifies that such systems be installed at any facility that dispenses more than 10,000 gallons of gasoline per month, or, in the case of an independent small business marketer (as defined in CAA section 324), any facility that dispenses more than 50,000 gallons of gasoline per month. Based on deadlines established in the Act, within 24 months from the effective date of the initial area designation and classification, states must adopt a stage II program into their SIPs, and the controls must be installed according to specified deadlines following state rule adoption. For existing facilities the installation deadlines depend on the date the facilities were built and the monthly volume of gasoline dispensed. See CAA sections 182(b)(3)(A)–(B), and 324(a)–(c).6 However, the CAA provides discretionary authority to the EPA Administrator to, by rule, revise or waive the section 182(b)(3) stage II requirement after the Administrator determines that On-Board Refueling Vapor Recovery (ORVR) is in widespread use throughout the motor vehicle fleet. See CAA section 202(a)(6). ORVR consists of an activated carbon canister installed in the vehicle into which vapors being expelled from the vehicle fuel tanks are forced to flow. There the vapors are captured by the activated carbon in the canister. When the engine is started, the vapors are drawn off of the activated carbon and into the engine where they are burned as fuel. EPA promulgated ORVR standards on April 6, 1994, 59 FR 16262. EPA first began the phase-in of ORVR by requiring that 40 percent of passenger cars manufactured in model year 1998 be equipped with ORVR. The 5 See CAA section 182(b)(3), 42 U.S.C. 7511a(b)(3). Originally, the section 182(b)(3) stage 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). 6 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. PO 00000 Frm 00037 Fmt 4700 Sfmt 4700 35281 ORVR requirement for passenger cars was increased to 100 percent by model year 2000. Phase-in continued for other vehicle types and ORVR has been a requirement on virtually all new gasoline-powered motor vehicles (passenger cars, light trucks, and complete 7 heavy-duty gasoline powered vehicles under 10,000 lbs gross vehicle weight rating (GVWR)) sold since model year 2006. See 40 CFR part 86. Currently, ORVR-equipped vehicles comprise approximately 67 percent of the in-service vehicle fleet nationwide, and account for around 76 percent of the vehicle miles traveled (VMT) in the nationwide fleet. The percentage of nonORVR vehicles and the percentage of VMT driven by those vehicles declines each year as these older vehicles wear out and are removed from service. Since certain vehicles are not required to have ORVR, including motorcycles and incomplete heavy-duty gasoline powered trucks chassis, under current requirements the nationwide motor vehicle fleet would never be entirely equipped with ORVR but these vehicles account for less than 2 percent of national annual highway gasoline consumption. The CAA anticipates that, over the long-term, ORVR will reduce the benefit from, and the need for, stage II vapor recovery systems at gasoline dispensing sites in ozone nonattainment areas, and as noted above, section 202(a)(6) of the CAA allows EPA to revise or waive the application of stage II vapor recovery requirements for areas classified as Serious, Severe, or Extreme for ozone, as appropriate, after such time as EPA determines that ORVR systems are in widespread use throughout the motor vehicle fleet. CAA section 202(a)(6) does not specify which motor vehicle fleet must be the subject of a widespread use determination before EPA may revise or waive the section 182(b)(3) stage II requirement. Nor does the CAA identify what level of ORVR use in the motor vehicle fleet must be reached before it is ‘‘widespread.’’ To date, EPA has issued two memoranda addressing when ORVR widespread use might be found for particular fleets.8 7 For purposes of ORVR applicability, a ‘‘complete’’ vehicle means a vehicle that leaves the primary manufacturer’s control with its primary load carrying device or container attached. 8 ‘‘Removal of Stage 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’’); and ‘‘Removal of Stage E:\FR\FM\13JNR1.SGM Continued 13JNR1 35282 Federal Register / Vol. 77, No. 114 / Wednesday, June 13, 2012 / Rules and Regulations erowe on DSK2VPTVN1PROD with RULES EPA expects the possibility of different rates of implementation of ORVR across different geographic regions and among different types of motor vehicle fleets within any region. Given this, EPA does not believe that CAA section 202(a)(6) must be read narrowly to allow a widespread use determination and waiver of the stage II requirement for a given area or area’s fleet only if ORVR use has become widespread through the entire United States, or only if ORVR use has reached a definite level in each area. Rather, EPA believes that section 202(a)(6) allows the Agency to apply the widespread use criterion to either the entire motor vehicle fleet in a State or nonattainment area, or to special segments of the overall fleet for which ORVR use is shown to be sufficiently high, and to base widespread use determinations on differing levels of ORVR use, as appropriate. EPA also believes that the Act allows the Agency to use an area-specific rulemaking approving a SIP revision to issue the section 202(a)(6) waiver for a relevant fleet in a nonattainment area. One metric that EPA has considered in determining whether ORVR use is widespread within a given motor vehicle fleet considers when VOC emissions resulting from the application of ORVR controls alone equal the VOC emissions when both stage II vapor recovery systems and ORVR controls are used, after accounting for incompatibility excess emissions. The incompatibility excess emissions factor relates to losses in control efficiency when certain types of stage II and ORVR are used together. One metric previously discussed by EPA for widespread use in distinct and unique situations was that widespread use will likely have been reached when the percentage of motor vehicles in service with ORVR, the vehicle miles traveled (VMT) by ORVRequipped vehicles, or the gasoline dispensed to ORVR-equipped vehicles reaches 95 percent. See the 2006 Page/ Oge Memorandum, page 2. Application of the 95 percent criterion could lead to, for example, waiver of stage II vapor recovery requirements at gasoline dispensing sites that exclusively fuel new automobiles at assembly plants and rental cars at rental car facilities given the high percentage (essentially 100%) of ORVR-equipped vehicles associated with such facilities. II Vapor Recovery from Refueling of Corporate Fleets,’’ memorandum from Stephen D. Page, Director, EPA Office of Air Quality Planning and Standards, and Margo Tsirigotis Oge, Director, EPA Office of Transportation and Air Quality, to Regional Air Division Directors, dated November 28, 2007 (‘‘2007 Page/Oge Memorandum’’). VerDate Mar<15>2010 12:20 Jun 12, 2012 Jkt 226001 Recently, EPA proposed criteria for determining whether ORVR is in ‘‘widespread use’’ for purposes of controlling motor vehicle refueling emissions throughout the motor vehicle fleet. See 76 FR 41731 (July 15, 2011). In EPA’s July 15, 2011 action, EPA also proposed criteria that would establish June 30, 2013 as the date on with ‘‘widespread use’’ will occur nationally, and the date on which a nationwide waiver of stage II gasoline vapor recovery systems will be effective. EPA, after considering public comments, intends to take final action regarding the July 15, 2011 proposal to establish a nationwide date for determining when ORVR is in ‘‘widespread use’’ and for waiving the stage II requirement. In the proposed rule, EPA stated that it intends to provide that individual states may submit SIP revisions that demonstrate that ORVR widespread use has occurred (or will occur) on a date earlier than the date identified in the final rule for areas in their states, and to request that the EPA revise or waive the section 182(b) (3) requirement as it applies to only those areas. See 76 FR at 41733. Consistent with EPA’s July 15, 2011 proposal to allow states to submit such SIP revisions, EPA is taking final action today to approve an area-specific revision to the Arizona SIP and to approve a waiver for a specific portion of the motor vehicle fleet, namely flexible fuel vehicles refueled with E85 gasoline blend, in the Phoenix metropolitan area. As explained in our October 3, 2011 proposed rule, the ‘‘Phoenix area,’’ defined by the Maricopa Association of Governments’ (MAGs’) urban planning area boundary (but later revised to exclude the Gila River Indian Community at 70 FR 68339 (November 10, 2005)), was classified as a ‘‘Moderate’’ nonattainment area for the 1-hour ozone national ambient air quality standard (NAAQS) and later reclassified as ‘‘Serious’’ for the 1-hour ozone standard. See 56 FR 56694, at 56717 (November 6, 1991) and 62 FR 60001 (November 6, 1997). As noted above, section 182(b)(3) of the Act required States with ozone nonattainment areas such as the Phoenix area to adopt and submit a SIP revision requiring gasoline dispensing facilities to install and operate stage II vapor recovery equipment, and in response, ADEQ submitted the statutory provisions and rules establishing stage II vapor recovery requirements in the Phoenix area. EPA approved the stage II vapor recovery rules as a revision to the Arizona SIP. See 59 FR 54521 (November 1, 1994). We are taking final PO 00000 Frm 00038 Fmt 4700 Sfmt 4700 action today to approve a SIP revision that updates the stage II vapor recovery requirements for the Phoenix metropolitan area and that waives stage II vapor recovery requirements at E85 dispensing pumps. C. EPA’s Evaluation of SIP Submittal and Proposed Action Relevant Statutes, Rules, Policies, and Guidance In our October 3, 2011 proposed rule, we explained how we evaluated the statutory provisions and administrative rules that ADEQ submitted to update the Arizona SIP with respect to the stage II vapor recovery program in the Phoenix metropolitan area. To summarize that information, we evaluated ADEQ’s stage II vapor recovery SIP update revision based on the Phoenix metropolitan area’s designations and classifications for the now-revoked one-hour ozone standard and the current eight-hour ozone standard to ensure Arizona’s stage II program complies with section 182(b)(3) of the Act (which is described in section I.B. of this document), to ensure that the requirements of the program are enforceable (see CAA section 110(a)(2)), and that the changes would not interfere with reasonable further progress or attainment of the NAAQS (see CAA section 110(l)). In doing so, we relied on a number of guidance and policy documents including, but not limited to the 2006 Page/Oge Memorandum 9 and the 2007 Page/Oge Memorandum (see footnote 7 of this document for the full references to these memoranda). Please see our October 3, 2011 proposed rule at page 61065 for a complete list of the guidance and policy documents upon which we relied. Compliance With CAA Section 182(b)(3) Stage II Requirements In our October 3, 2011 proposed rule, we concluded that the statutory provisions meet the CAA section 182(b)(3) stage II requirements for the following reasons: • The State is requiring stage II vapor recovery controls in an area that encompasses all of the 1-hour ozone ‘‘serious’’ nonattainment area consistent 9 In EPA’s recent national rulemaking regarding waiver of stage II requirements, we indicate that the Agency continues to believe the 2006 Page/Oge Memorandum is sound guidance in areas where stage II is currently being implemented, and is unaffected by the proposed national widespread use determination. See 76 FR 41731, at 41737 (July 15, 2011). In today’s action, we rely primarily on the principles and rationale set forth in the 2006 Page/ Oge Memorandum rather than those set forth in EPA’s July 15, 2011 proposed rule. E:\FR\FM\13JNR1.SGM 13JNR1 erowe on DSK2VPTVN1PROD with RULES Federal Register / Vol. 77, No. 114 / Wednesday, June 13, 2012 / Rules and Regulations with compliance schedules set forth in the Act and the State provides lowvolume throughput exemptions that are consistent with those allowed for in CAA section 182(b)(3); and • The State law exemption for a ‘‘gasoline dispensing site that is located on a manufacturer’s proving ground’’ in ARS 41–2132(C) does not apply to any facility within the nonattainment area, and, assuming that the fuel throughput at the facility to which it had applied is representative of the throughput of any such facility that might locate within the nonattainment area, the exemption would be consistent with the lowvolume throughput exemptions allowed for in CAA section 182(b)(3). Further, in our October 3, 2011 proposed rule, we evaluated whether the exclusion of ‘‘E85’’ from the State law definition of gasoline comports with section 182(b)(3) vapor recovery requirements. Based on this evaluation, we concluded that, given how close the ORVR-equipped percentage for flexible fuel vehicles (FFVs) in the Phoenix metropolitan area (87 percent in 2008 and climbing) is to the ORVR widespread use threshold based on comparable VOC emissions (95 percent) and because the change in emissions due to use of E85 would not interfere with attainment and RFP of any of the NAAQS, ORVR is in widespread use in the FFV vehicle fleet in the Phoenix metropolitan area for the purposes of CAA section 202(a)(6). Based on the finding of ‘‘widespread use,’’ in our October 3, 2011 proposed rule, we proposed to waive the stage II vapor recovery requirements for E85 dispensing pumps in the Phoenix metropolitan area under section 202(a)(6). Third, in our October 3, 2011 proposed rule, we noted that changes in ADWM’s vapor recovery rules would generally serve to clarify and improve the existing stage II vapor recovery rules that we approved into the SIP in 1994, and that the only significant changes potentially affecting approvability with respect to CAA section 182(b) (3) would be the new exemptions for motor raceways, and for marine and aircraft refueling facilities. We evaluated the new exemptions and concluded that they would be acceptable under section 182(b)(3) because the fuel throughput at the one motor raceway facility to which the exemption applies is far below the 10,000-gallon per month lowthroughput threshold exemption allowed under CAA section 182(b)(3) and because the exemptions as applied to the race cars themselves and to marine and aircraft refueling facilities do not apply to apply to ‘‘motor VerDate Mar<15>2010 12:20 Jun 12, 2012 Jkt 226001 vehicles’’ as defined in CAA section 216(2) and thus are not required to be subject to stage II vapor recovery requirements under section 182(b)(3). Please see our October 3, 2011 proposed rule at pages 61066 and 61067 for more information about our evaluation of the submitted statutory provisions and rules for compliance with section 182(b)(3) and for more information about our proposed waiver under section 202(a)(6). 35283 Compliance With CAA Section 110(l) In our October 3, 2011 proposed rule, we also evaluated the statutory provisions and administrative rules submitted by ADEQ as part of the September 21, 2009 SIP revision under CAA section 110(l) for possible interference with any applicable requirement concerning reasonable further progress (RFP) and attainment of any of the NAAQS or any other applicable requirement under the Act. With respect to this SIP revision, we found that the only potentially significant adverse effect on emissions and, thus, potential for interference would stem from the exclusion of E85 from the definition of ‘‘gasoline’’ in ARS 41–2121. The exclusion of E85 from ‘‘gasoline’’ would allow for increased use of E85 (by FFVs) as a motor fuel in the Phoenix metropolitan area and would result in corresponding change in emissions from FFVs using E85 relative to the same vehicles using the specially formulated gasoline (referred to as ‘‘Arizona Cleaner Burning Gasoline,’’ or ‘‘Arizona CBG’’) otherwise required.10 (Arizona CBG is a boutique fuel established to reduce vehicle emissions in the Phoenix metropolitan area and to help meet CAA air quality planning requirements.) The gasoline portion of E85 must continue to meet the specifications for Arizona CBG pursuant to AAC R20–2–718(B). To evaluate the change in emissions, we reviewed a recently published study from the Journal of the Air & Waste Management Association titled ‘‘Effect of E85 on Tailpipe Emissions from Light-Duty Vehicles 11’’ (herein, the ‘‘E85 Vehicle Emissions Study’’), which compiled the results from previous published studies but also analyzed a significantly larger database compiled by EPA for vehicle certification purposes. As described in our October 3, 2011 proposed rule, though the results vary by pollutant and between ‘‘tier 1’’ (i.e., model year (MY) 1994– 2003) and ‘‘tier 2’’ (MY 2004–2008) vehicles, in general, the study suggests that FFVs using E85 emit fewer oxides of nitrogen (NOX), carbon monoxide, and particulate matter (PM) relative to the same FFVs using gasoline. However, with respect to VOCs, FFVs may well emit greater VOCs than the same FFVs using gasoline [based on the measurement results for non-methane organic gases (NMOGs)].12 Thus, with respect to nitrogen dioxide, carbon monoxide and particulate matter, because emissions using E85 would be lower than those using CBG, we concluded that the incremental substitution of CBG with E85 would not interfere with RFP or 10 EPA’s guidance for States in developing their stage II SIPs in the early 1990s suggested that States use the same definition of ‘‘gasoline’’ as the one found in EPA’s Standard of Performance for Bulk Gasoline Terminals at 40 CFR 60.501, which includes ‘‘any petroleum distillate or petroleum distillate/alcohol blend having a Reid vapor pressure of 27.6 kilopascals or greater which is used as a fuel for internal combustion engines.’’ EPA recommended using this definition to most broadly reach situations in which refueling of motor vehicles results in evaporative VOC emissions that contribute to ozone nonattainment concentrations, and to avoid a narrow interpretation of what is ‘‘gasoline’’ that would allow significant VOC emissions from motor vehicle refueling activities in nonattainment areas to go uncontrolled. In the existing SIP, Arizona includes a definition of ‘‘gasoline,’’ AAC R4–31–901(5), that is consistent with the NSPS definition. The SIP revision that we are approving today would replace the existing SIP definition of ‘‘gasoline’’ from Arizona’s rules for gasoline vapor recovery (AAC title 20, chapter 2, article 9) with the definition of ‘‘gasoline’’ from Arizona’s statutes governing motor fuel (ARS section 41–2121(5)). The definition of ‘‘gasoline’’ in ARS section 41–2121(5) is as inclusive as the existing SIP definition in AAC R4–31–901(5), except for the explicit exclusion of E85. Given that E85 can only be used by FFVs, and based on our proposed ‘‘widespread use’’ determination with respect to the FFV fleet in the Phoenix area that would be fueled at E85 dispensing pumps, we find the exception for E85 from the definition of ‘‘gasoline’’ acceptable under CAA section 182(b)(3). Moreover, to allow for the distribution and sale of E85 in the Phoenix area, a change in the term of ‘‘gasoline’’ (to exclude E85) for stage II vapor recovery purposes alone would not have sufficed. Because of the boutique fuel requirements of Arizona CBG that have been approved into the Arizona SIP, a change in the definition of ‘‘gasoline’’ as a motor fuel (to exclude E85) was also necessary. 11 Janet Yanowitz and Robert L. McCormick, ‘‘Effect of E85 on Tailpipe Emissions from LightDuty Vehicles,’’ Journal of the Air & Waste Management Association, Volume 59, February 2009, pages 172–182. 12 Ethanol itself contains no lead (Pb) or sulfur, but the ethanol portion of E85 does contain some Pb and sulfur due to the addition of a denaturant, which can comprise up to 5% of the ethanol portion of E85. The denaturant used by ethanol producers is typically gasoline (either RFG or conventional gasoline, depending on where the ethanol plant is located), which has sulfur and Pb specifications similar to those for CBG. Therefore, a gallon of E85 would have less sulfur and Pb than a gallon of CBG (due to the dilution provided by the ethanol), and thus the emissions of sulfur dioxide and Pb from use of E85 in FFVs would be less than the corresponding emissions from use of CBG in those vehicles. Therefore, there would be no interference with RFP or attainment of the Pb and sulfur dioxide NAAQS. PO 00000 Frm 00039 Fmt 4700 Sfmt 4700 E:\FR\FM\13JNR1.SGM 13JNR1 35284 Federal Register / Vol. 77, No. 114 / Wednesday, June 13, 2012 / Rules and Regulations attainment of the ambient standards for those pollutants. We also concluded that the net effect on ozone conditions in the Phoenix 8hour 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.13 On the basis of the above rationale, we determined in our October 3, 2011 proposed rule that this SIP revision, including the change in the definition of ‘‘gasoline’’ to exclude ‘‘E85,’’ would not interfere with RFP and attainment for any of the NAAQS. Please see our October 3, 2011 proposed rule at pages 61067 and 61068 for more information about our evaluation of the submitted statutory provisions and rules for compliance with section 110(l) of the CAA. erowe on DSK2VPTVN1PROD with RULES D. Proposed Correction of Previous Rulemaking Lastly, in our October 3, 2011 proposed rule, we described our direct final action (59 FR 54521, November 1, 1994) to approve the administrative rules adopted by ADWM to provide for the installation and operation of stage II vapor recovery systems, and in which we included erroneous references and failed to identify the specific rules being incorporated by reference into the SIP. To address this issue, we proposed, under section 110(k)(6) and 301(a) of the CAA,14 to correct our previous codification of our approval of the stage II vapor recovery rules to identify the appropriate regulatory agency and to identify the specific rules that were being approved and incorporated by reference into the Arizona SIP. Please 13 As submitted in 1993, ARS section 41–2132(C) established the stage II vapor recovery requirement within the ozone nonattainment area, but the current version of this statute, which is included in today’s final approval action, extends the requirement to ‘‘Area A.’’ 14 Section 110(k)(6) of the CAA provides that, whenever EPA determines that the Agency’s action approving, disapproving, or promulgating any plan or plan revision, area designation, redesignation, classification, or reclassification was in error, EPA may in the same manner as the approval, disapproval, or promulgation revise such action as appropriate without requiring any further submission from the State. Section 301(a) of the CAA authorizes EPA to prescribe such regulations as are necessary to carry out the Agency’s functions under the CAA. VerDate Mar<15>2010 12:20 Jun 12, 2012 Jkt 226001 see our October 3, 2011 proposed rule at page 61068 for more information about our proposed error correction under CAA section 110(k)(6). II. Public Comments and EPA Responses Our October 3, 2011 proposed rule provided a 60-day comment period. During this period, we received no comments on our proposed action. III. Final Action As authorized in section 110(k)(3) of the Act and for the reasons provided in our October 3, 2011 proposed rule and summarized herein, EPA is taking final action to approve the statutory provisions and updated administrative rules establishing certain vapor recovery requirements in the Phoenix metropolitan area as a revision to the Arizona SIP. Specifically, we are taking final action to approve Arizona Revised Statutes (ARS) sections listed in table 1 of this document and the Arizona Administrative Code (AAC) sections listed in table 2 of this document.15 Second, as authorized under CAA section 202(a)(6), we are taking final action to waive the stage II vapor recovery requirements at E85 dispensing pumps in the Phoenix area under CAA section 202(a)(6) based on our conclusion that ORVR is in widespread use among the FFVs that use such facilities. In so doing, we conclude that the submitted statutory provisions and updated administrative rules meet the related requirements for stage II vapor recovery under CAA section 182(b)(3) and will not interfere with attainment and RFP of any of the NAAQS or any other CAA applicable requirement, consistent with the requirements of CAA section 110(l). Final EPA approval of the updated statutory provisions and rules and incorporation of them into the Arizona SIP makes them federally enforceable. Lastly, under section 110(k)(6) and 301(a) of the CAA, we are taking final action to correct and clarify the incorporation of the previous version of ADWM’s vapor recovery related administrative rules into the Arizona SIP. 15 Our approval of the statutory provisions and administrative rules in tables 1 and 2 of this document supersedes the previously approved versions of the administrative rules in the Arizona SIP (i.e., AAC Article 9 (‘‘Gasoline Vapor Control’’), Rules R4–31–901 through R4–31–910, adopted by the Arizona Department of Weights and Measures on August 27, 1993, submitted on May 27, 1994, and approved on November 1, 1994 (59 FR 54521)). PO 00000 Frm 00040 Fmt 4700 Sfmt 4700 IV. Statutory and Executive Order Reviews Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA’s role is to approve State choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action: • Is not a ‘‘significant regulatory action’’ subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993) given the limited nature of this SIP revision (as to geographic scope and vehicle applicability); • Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.); • Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.); • Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4); • Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); • Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); • Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); • Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and • Does not provide EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, and legally permissible methods under Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that E:\FR\FM\13JNR1.SGM 13JNR1 Federal Register / Vol. 77, No. 114 / Wednesday, June 13, 2012 / Rules and Regulations it will not impose substantial direct costs on tribal governments or preempt tribal law. The Congressional Review Act, 5 U.S.C. section 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a ‘‘major rule’’ as defined by 5 U.S.C. section 804(2). Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 13, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (See section 307(b)(2)). List of Subjects in 40 CFR Parts 52 Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds. Dated: April 11, 2012. Lisa P. Jackson, Administrator. Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows: PART 52—[AMENDED] 1. The authority citation for part 52 continues to read as follows: ■ erowe on DSK2VPTVN1PROD with RULES Authority: 42 U.S.C. 7401 et seq. Subpart D—Arizona 2. Section 52.120 is amended by revising paragraph (c)(69)(i)(A) and adding paragraph (c)(148) to read as follows: ■ VerDate Mar<15>2010 12:20 Jun 12, 2012 Jkt 226001 § 52.120 Identification of plan. * * * * * (c) * * * (69) * * * (i) * * * (A) Arizona Department of Weights and Measures. (1) Letter from Grant Woods, Attorney General, State of Arizona, to John U. Hays, Director, Department of Weights and Measures, dated August 31, 1993, and enclosed Form R102 (‘‘Certification of Rules and Order of Rule Adoption’’). (2) Arizona Administrative Code, Article 9 (‘‘Gasoline Vapor Control’’), Rules R4–31–901 through R4–31–910, adopted August 27, 1993, effective (for state purposes) on August 31, 1993. * * * * * (148) The following plan revision was submitted on September 21, 2009 by the Governor’s designee. (i) Incorporation by reference. (A) Arizona Department of Weights and Measures. (1) Arizona Revised Statutes, title 41 (State Government), chapter 15 (Department of Weights and Measures), as amended and supplemented by the general and permanent laws enacted through the First Special Session, and legislation effective January 11, 2011 of the First Regular Session of the Fiftieth Legislature (2011): (i) Article 1 (General Provisions), section 41–2051 (‘‘Definitions’’), subsections (6) (‘‘Certification’’), (10) (‘‘Department’’), (11) (‘‘Diesel fuel’’), (12) (‘‘Director’’), and (13) (‘‘E85’’), amended by Laws 2008, Ch. 254, § 2; (ii) Article 6 (Motor Fuel), section 41– 2121 (‘‘Definitions’’), subsection (5) (‘‘Gasoline’’) amended by Laws 2007, Ch. 292, § 11; and (iii) Article 7 (Gasoline Vapor Control), section 41–2131 (‘‘Definitions’’), added by Laws 1992, Ch. 299, § 6; section 41–2132 (‘‘Stage I and stage II vapor recovery systems’’), amended by Laws 2010, Ch. 181, § 2; and section 41–2133 (‘‘Compliance schedules’’), amended by Laws 1999, Ch. 295, § 17. (2) Arizona Administrative Code, title 20, chapter 2, article 1 (Administration and Procedures), section R20–2–101 (‘‘Definitions’’), effective (for state purposes) on June 5, 2004. (3) Arizona Administrative Code, title 20, chapter 2, article 9 (Gasoline Vapor Control): (i) Sections R20–2–901 (‘‘Material Incorporated by Reference’’), R20–2–902 (‘‘Exemptions’’), R20–2–903 (‘‘Equipment and Installation’’), R20–2– 904 (‘‘Application Requirements and Process for Authority to Construct Plan Approval’’), R20–2–905 (‘‘Initial Inspection and Testing’’), R20–2–910 PO 00000 Frm 00041 Fmt 4700 Sfmt 4700 35285 (‘‘Annual Inspection and Testing’’), R20–2–911 (‘‘Compliance Inspections’’), and R20–2–912 (‘‘Enforcement’’), effective (for state purposes) on June 5, 2004. (ii) Sections R20–2–907 (‘‘Operation’’), R20–2–908 (‘‘Training and Public Education’’), and R20–2–909 (‘‘Recordkeeping and Reporting’’), effective (for state purposes) on October 8, 1998. [FR Doc. 2012–14148 Filed 6–12–12; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR 52 [EPA–R09–OAR–2012–0253; FRL–9682–5] Approval of Air Quality Implementation Plan; Arizona; Attainment Plan for 1997 8-Hour Ozone Standard U.S. Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: EPA is approving a state implementation plan (SIP) revision submitted by the State of Arizona on June 13, 2007, to demonstrate attainment of the 1997 8-hour ozone national ambient air quality standards (NAAQS) in the Phoenix-Mesa nonattainment area by June 15, 2009. This action was proposed in the Federal Register on April 11, 2012. EPA is approving the submitted SIP revision based on our determination that it contains all of the SIP elements required for ozone nonattainment areas under title I, part D, subpart 1 of the Clean Air Act (CAA) for the 1997 8-hour ozone NAAQS. SUMMARY: DATES: This rule is effective on July 13, 2012. EPA has established docket number EPA–R09–OAR–2012–0253 for this action. Generally, documents in the docket for this action are available electronically at https:// www.regulations.gov or in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed at https://www.regulations.gov, some information may be publicly available only at the hard copy location (e.g., copyrighted material, large maps, multivolume reports), and some may not be available in either location (e.g., confidential business information (CBI)). To inspect the hard copy materials, please schedule an appointment during normal business ADDRESSES: E:\FR\FM\13JNR1.SGM 13JNR1

Agencies

ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 77, Number 114 (Wednesday, June 13, 2012)]
[Rules and Regulations]
[Pages 35279-35285]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-14148]

-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2010-0717; FRL 9661-3]

Approval and Promulgation of Implementation Plans; Arizona;
Update to Stage II Gasoline Vapor Recovery Program; Change in the
Definition of ``Gasoline'' To Exclude ``E85''

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: Under the Clean Air Act, EPA is taking final action to approve
certain revisions to the Arizona State Implementation Plan submitted by
the Arizona Department of Environmental Quality. These revisions
concern amendments to the statutory and regulatory provisions adopted
by the State of Arizona to regulate volatile organic compound emissions
from the transfer of gasoline from storage tanks to motor vehicle fuel
tanks at gasoline dispensing sites, i.e., stage II vapor recovery. The
revisions also amend the definition of ``gasoline'' to explicitly
exclude E85 and thereby amend the requirements for fuels available for
use in the Phoenix metropolitan area as well as the requirements for
vapor recovery. In approving the revisions, EPA is taking final action
to waive the statutory stage II vapor recovery requirements at E85
dispensing pumps within the Phoenix metropolitan area. Lastly, EPA is
taking final action to correct an EPA rulemaking that approved a
previous version of the Arizona rules regulating these sources and to
thereby identify the appropriate regulatory agency and specific rules
that were previously approved and incorporated by reference into the
Arizona State Implementation Plan.

DATES: Effective Date: This rule is effective on July 13, 2012.

ADDRESSES: EPA has established docket number EPA-R09-OAR-2010-0717 for
this action. The index to the docket is available electronically at
www.regulations.gov and in hard copy at EPA Region IX, 75 Hawthorne
Street, San Francisco, California. While all documents in the docket
are listed in the index, some information may be publicly available
only at the hard copy location (e.g., copyrighted material), and some
may not be publicly available in either location (e.g., Confidential
Business Information). To inspect the hard copy materials, please
schedule an appointment during normal business hours with the contact
listed in the FOR FURTHER INFORMATION CONTACT section.

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

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

Table of Contents

I. EPA's Proposed Action
A. The State's Submittal
B. Regulatory Context
C. EPA's Evaluation of SIP Submittal and Proposed Action
D. Proposed Correction of Previous Rulemaking
II. Public Comments and EPA Responses
III. Final Action
IV. Statutory and Executive Order Reviews

I. EPA's Proposed Action

A. The State's Submittal

On October 3, 2011 (76 FR 61062), we proposed to approve a revision
to the Arizona State Implementation Plan (SIP) submitted to EPA on
September 21, 2009 by the Arizona Department of Environmental Quality
(ADEQ). The purpose of the SIP revision is to update the gasoline vapor
recovery program that was originally submitted and approved by EPA in
1994 to meet certain applicable requirements of the Clean Air Act, as
amended in 1990 (CAA or ``Act'').\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
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

[[Page 35280]]

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,'' \4\ 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. In our October 3, 2011 proposed rule, we
concluded that ADEQ's September 21, 2009 SIP revision submittal
contains adequate documentation of public notice, opportunity for
comment, and a public hearing on the proposed SIP revision (see
enclosure 5 of the submittal) and that the public participation
materials submitted by ADEQ demonstrate compliance with the procedural
requirements set forth in section 110(l) of the CAA.
---------------------------------------------------------------------------

\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.
\4\ E85 is a motor vehicle fuel that is a blend of as little as
15 percent gasoline and up to 85 percent ethanol. (In wintertime
applications, the ratio may be 30 percent gasoline and 70 percent
ethanol.) E85 can only be used in specially designed FFVs, which
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.
---------------------------------------------------------------------------

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 approving in today's action.

Table 1--Submitted Statutory Provisions
------------------------------------------------------------------------
Arizona revised statutes Title Submitted
------------------------------------------------------------------------
Title 41, chapter 15, article Definitions: 09/21/09
1, section 41-2051. subsection 6
(``Certification'
'), subsection 10
(``Department''),
subsection 11
(``Diesel
fuel''),
subsection 12
(``Director''),
and subsection 13
(``E85'').
Title 41, chapter 15, article Definitions: 09/21/09
6, section 41-2121. subsection 5
(``Gasoline'').
Title 41, chapter 15, article Definitions: 09/21/09
7, section 41-2131. 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'').
Title 41, chapter 15, article Stage I and stage 09/21/09
7, section 41-2132. II vapor recovery
systems.
Title 41, chapter 15, article Compliance 09/21/09
7, section 41-2133. schedules.
------------------------------------------------------------------------

Table 2--Submitted Rules
----------------------------------------------------------------------------------------------------------------
Effective date (for
Arizona administrative code Rule title state purposes) Submitted
----------------------------------------------------------------------------------------------------------------
Title 20, chapter 2, article 1, Definitions............ 06/05/04................ 09/21/09
section R20-2-101.
Title 20, chapter 2, article 9, Material Incorporated 06/05/04................ 09/21/09
section R20-2-901. by Reference.
Title 20, chapter 2, article 9, Exemptions............. 06/05/04................ 09/21/09
section R20-2-902.
Title 20, chapter 2, article 9, Equipment and 06/05/04................ 09/21/09
section R20-2-903. Installation.
Title 20, chapter 2, article 9, Application 06/05/04................ 09/21/09
section R20-2-904. Requirements and
Process for Authority
to Construct Plan
Approval.
Title 20, chapter 2, article 9, Initial Inspection and 06/05/04................ 09/21/09
section R20-2-905. Testing.
Title 20, chapter 2, article 9, Operation.............. 10/08/98................ 09/21/09
section R20-2-907.
Title 20, chapter 2, article 9, Training and Public 10/08/98................ 09/21/09
section R20-2-908. Education.
Title 20, chapter 2, article 9, Recordkeeping and 10/08/98................ 09/21/09
section R20-2-909. Reporting.
Title 20, chapter 2, article 9, Annual Inspection and 06/05/04................ 09/21/09
section R20-2-910. Testing.
Title 20, chapter 2, article 9, Compliance Inspections. 06/05/04................ 09/21/09
section R20-2-911.
Title 20, chapter 2, article 9, Enforcement............ 06/05/04................ 09/21/09
section R20-2-912.
----------------------------------------------------------------------------------------------------------------

Under Arizona law, the principal stage II vapor recovery
requirements are found in Arizona Revised Statutes (ARS) section 41-
2132 (``Stage I and stage II vapor recovery systems''), which requires
gasoline dispensing sites to be equipped with a stage II vapor
collection system within ``an ozone nonattainment area designated as
moderate, serious, severe or extreme by the United States environmental
protection agency under 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.
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 CAA, and for
gasoline dispensing sites that are located on a manufacturer's proving
ground. ARS 41-2133 sets forth certain compliance schedules related to
the stage II vapor recovery requirements in ARS 41-2132.

[[Page 35281]]

The stage II vapor recovery requirements in ARS 41-2132 rely upon
the definitions of certain terms, such as ``gasoline,'' ``stage II
vapor collection system,'' and ``E85,'' among others, which are
codified in ARS sections 41-2015, 41-2121, and 41-2131, and ADEQ
included the relevant definitions, along with ARS sections 41-2132 and
41-2133, in the SIP revision submittal dated September 21, 2009. See
table 1 of this document. The definition of ``gasoline,'' which is
codified in paragraph (5) of ARS 41-2121, specifically excludes
``diesel fuel'' and ``E85.''
ARS section 41-2132(G) directs the Arizona Department of Weights
and Measures (ADWM) to adopt rules that establish standards for the
installation and operation of stage I and stage II vapor recovery
systems. In 1994, EPA approved an earlier version of ADWM's rules for
stage II vapor recovery. See 59 FR 54521 (November 1, 1994). Since
then, in addition to renumbering and recodifying the rules, ADWM has
amended the vapor recovery rules to delete, modify, and add certain
definitions; to approve use of certain new test procedures developed by
the California Air Resources Board (CARB); to include general
requirements for stage I vapor recovery systems; to add exemptions for
motor raceways, motor vehicle proving grounds, and marine and aircraft
refueling facilities; to clarify and expand application requirements;
and to enhance compliance-related provisions.
ADWM's rules for such systems are now codified at title 20, chapter
2, article 9 (``Gasoline Vapor Recovery''), of the Arizona
Administrative Code (AAC). These rules rely upon certain definitions in
AAC, title 20, chapter 2, article 1 (``Administration and
Procedures''), section R20-2-101 (``Definitions''). ADEQ submitted
these rules and definitions to EPA as part of the stage II SIP revision
dated September 21, 2009--see table 2 of this document.
In our October 3, 2011 proposed rule, we also explained that in our
1994 final rule approving an earlier version of ADWM's vapor recovery
rules, we made an error in how we codified the stage II vapor recovery
rules into the Arizona SIP, and were thus proposing to correct that
error. Please see our October 3, 2011 proposed rule at pages 61063 and
61064 for additional information on these topics.

B. Regulatory Context

Under CAA section 182(b)(3), stage II vapor recovery systems are
required to be used at larger gasoline dispensing facilities located in
Serious, Severe, and Extreme nonattainment areas for ozone.\5\ More
specifically, the Act specifies that such systems be installed at any
facility that dispenses more than 10,000 gallons of gasoline per month,
or, in the case of an independent small business marketer (as defined
in CAA section 324), any facility that dispenses more than 50,000
gallons of gasoline per month. Based on deadlines established in the
Act, within 24 months from the effective date of the initial area
designation and classification, states must adopt a stage II program
into their SIPs, and the controls must be installed according to
specified deadlines following state rule adoption. For existing
facilities the installation deadlines depend on the date the facilities
were built and the monthly volume of gasoline dispensed. See CAA
sections 182(b)(3)(A)-(B), and 324(a)-(c).\6\
---------------------------------------------------------------------------

\5\ 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).
\6\ 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 \7\ heavy-
duty gasoline powered vehicles under 10,000 lbs gross vehicle weight
rating (GVWR)) sold since model year 2006. See 40 CFR part 86.
Currently, ORVR-equipped vehicles comprise approximately 67 percent of
the in-service vehicle fleet nationwide, and account for around 76
percent of the vehicle miles traveled (VMT) in the nationwide fleet.
The percentage of 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 but these
vehicles account for less than 2 percent of national annual highway
gasoline consumption.
---------------------------------------------------------------------------

\7\ For purposes of ORVR applicability, a ``complete'' vehicle
means a vehicle that leaves the primary manufacturer's control with
its primary load carrying device or container attached.
---------------------------------------------------------------------------

The CAA anticipates that, over the long-term, ORVR will reduce the
benefit from, and the need for, stage II vapor recovery systems at
gasoline dispensing sites in ozone nonattainment areas, and as noted
above, section 202(a)(6) of the CAA allows EPA to revise or waive the
application of stage II vapor recovery requirements for areas
classified as Serious, Severe, or Extreme for ozone, as appropriate,
after such time as EPA determines that ORVR systems are in widespread
use throughout the motor vehicle fleet. CAA section 202(a)(6) does not
specify which motor vehicle fleet must be the subject of a widespread
use determination before EPA may revise or waive the section 182(b)(3)
stage II requirement. Nor does the CAA identify what level of ORVR use
in the motor vehicle fleet must be reached before it is ``widespread.''
To date, EPA has issued two memoranda addressing when ORVR widespread
use might be found for particular fleets.\8\
---------------------------------------------------------------------------

\8\ ``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'');
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 (``2007 Page/Oge
Memorandum'').

---------------------------------------------------------------------------

[[Page 35282]]

EPA expects the possibility of different rates of implementation of
ORVR across different geographic regions and among different types of
motor vehicle fleets within any region. Given this, EPA does not
believe that CAA section 202(a)(6) must be read narrowly to allow a
widespread use determination and waiver of the stage II requirement for
a given area or area's fleet only if ORVR use has become widespread
through the entire United States, or only if ORVR use has reached a
definite level in each area. Rather, EPA believes that section
202(a)(6) allows the Agency to apply the widespread use criterion to
either the entire motor vehicle fleet in a State or nonattainment area,
or to special segments of the overall fleet for which ORVR use is shown
to be sufficiently high, and to base widespread use determinations on
differing levels of ORVR use, as appropriate. EPA also believes that
the Act allows the Agency to use an area-specific rulemaking approving
a SIP revision to issue the section 202(a)(6) waiver for a relevant
fleet in a nonattainment area.
One metric that EPA has considered in determining whether ORVR use
is widespread within a given motor vehicle fleet considers when VOC
emissions resulting from the application of ORVR controls alone equal
the VOC emissions when both stage II vapor recovery systems and ORVR
controls are used, after accounting for incompatibility excess
emissions. The incompatibility excess emissions factor relates to
losses in control efficiency when certain types of stage II and ORVR
are used together. One metric previously discussed by EPA for
widespread use in distinct and unique situations was that widespread
use will likely have been reached when the percentage of motor vehicles
in service with ORVR, the vehicle miles traveled (VMT) by 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 to, for example, waiver of stage II
vapor recovery requirements at gasoline dispensing sites that
exclusively fuel new automobiles at assembly plants and rental cars at
rental car facilities given the high percentage (essentially 100%) of
ORVR-equipped vehicles associated with such facilities.
Recently, EPA proposed criteria for determining whether ORVR is in
``widespread use'' for purposes of controlling motor vehicle refueling
emissions throughout the motor vehicle fleet. See 76 FR 41731 (July 15,
2011). In EPA's July 15, 2011 action, EPA also proposed criteria that
would establish June 30, 2013 as the date on with ``widespread use''
will occur nationally, and the date on which a nationwide waiver of
stage II gasoline vapor recovery systems will be effective.
EPA, after considering public comments, intends to take final
action regarding the July 15, 2011 proposal to establish a nationwide
date for determining when ORVR is in ``widespread use'' and for waiving
the stage II requirement. In the proposed rule, EPA stated that it
intends to provide that individual states may submit SIP revisions that
demonstrate that ORVR widespread use has occurred (or will occur) on a
date earlier than the date identified in the final rule for areas in
their states, and to request that the EPA revise or waive the section
182(b) (3) requirement as it applies to only those areas. See 76 FR at
41733. Consistent with EPA's July 15, 2011 proposal to allow states to
submit such SIP revisions, EPA is taking final action today to approve
an area-specific revision to the Arizona SIP and to approve a waiver
for a specific portion of the motor vehicle fleet, namely flexible fuel
vehicles refueled with E85 gasoline blend, in the Phoenix metropolitan
area.
As explained in our October 3, 2011 proposed rule, the ``Phoenix
area,'' defined by the Maricopa Association of Governments' (MAGs')
urban planning area boundary (but later revised to exclude the Gila
River Indian Community at 70 FR 68339 (November 10, 2005)), was
classified as a ``Moderate'' nonattainment area for the 1-hour ozone
national ambient air quality standard (NAAQS) and later reclassified as
``Serious'' for the 1-hour ozone standard. See 56 FR 56694, at 56717
(November 6, 1991) and 62 FR 60001 (November 6, 1997). As noted above,
section 182(b)(3) of the Act required States with ozone nonattainment
areas such as the Phoenix area to adopt and submit a SIP revision
requiring gasoline dispensing facilities to install and operate stage
II vapor recovery equipment, and in response, ADEQ submitted the
statutory provisions and rules establishing stage II vapor recovery
requirements in the Phoenix area. EPA approved the stage II vapor
recovery rules as a revision to the Arizona SIP. See 59 FR 54521
(November 1, 1994). We are taking final action today to approve a SIP
revision that updates the stage II vapor recovery requirements for the
Phoenix metropolitan area and that waives stage II vapor recovery
requirements at E85 dispensing pumps.

C. EPA's Evaluation of SIP Submittal and Proposed Action

Relevant Statutes, Rules, Policies, and Guidance
In our October 3, 2011 proposed rule, we explained how we evaluated
the statutory provisions and administrative rules that ADEQ submitted
to update the Arizona SIP with respect to the stage II vapor recovery
program in the Phoenix metropolitan area. To summarize that
information, we evaluated ADEQ's stage II vapor recovery SIP update
revision based on the Phoenix metropolitan area's designations and
classifications for the now-revoked one-hour ozone standard and the
current eight-hour ozone standard to ensure Arizona's stage II program
complies with section 182(b)(3) of the Act (which is described in
section I.B. of this document), to ensure that the requirements of the
program are enforceable (see CAA section 110(a)(2)), and that the
changes would not interfere with reasonable further progress or
attainment of the NAAQS (see CAA section 110(l)).
In doing so, we relied on a number of guidance and policy documents
including, but not limited to the 2006 Page/Oge Memorandum \9\ and the
2007 Page/Oge Memorandum (see footnote 7 of this document for the full
references to these memoranda). Please see our October 3, 2011 proposed
rule at page 61065 for a complete list of the guidance and policy
documents upon which we relied.
---------------------------------------------------------------------------

\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.
---------------------------------------------------------------------------

Compliance With CAA Section 182(b)(3) Stage II Requirements
In our October 3, 2011 proposed rule, we concluded that the
statutory provisions meet the CAA section 182(b)(3) stage II
requirements for the following reasons:
The State is requiring stage II vapor recovery controls in
an area that encompasses all of the 1-hour ozone ``serious''
nonattainment area consistent

[[Page 35283]]

with compliance schedules set forth in the Act and the State provides
low-volume throughput exemptions that are consistent with those allowed
for in CAA section 182(b)(3); and
The State law exemption for a ``gasoline dispensing site
that is located on a manufacturer's proving ground'' in ARS 41-2132(C)
does not apply to any facility within the nonattainment area, and,
assuming that the fuel throughput at the facility to which it had
applied is representative of the throughput of any such facility that
might locate within the nonattainment area, the exemption would be
consistent with the low-volume throughput exemptions allowed for in CAA
section 182(b)(3).
Further, in our October 3, 2011 proposed rule, we evaluated whether
the exclusion of ``E85'' from the State law definition of gasoline
comports with section 182(b)(3) vapor recovery requirements. Based on
this evaluation, we concluded that, given how close the ORVR-equipped
percentage for flexible fuel vehicles (FFVs) in the Phoenix
metropolitan area (87 percent in 2008 and climbing) is to the ORVR
widespread use threshold based on comparable VOC emissions (95 percent)
and because the change in emissions due to use of E85 would not
interfere with attainment and RFP of any of the NAAQS, ORVR is in
widespread use in the FFV vehicle fleet in the Phoenix metropolitan
area for the purposes of CAA section 202(a)(6). Based on the finding of
``widespread use,'' in our October 3, 2011 proposed rule, we proposed
to waive the stage II vapor recovery requirements for E85 dispensing
pumps in the Phoenix metropolitan area under section 202(a)(6).
Third, in our October 3, 2011 proposed rule, we noted that changes
in ADWM's vapor recovery rules would generally serve to clarify and
improve the existing stage II vapor recovery rules that we approved
into the SIP in 1994, and that the only significant changes potentially
affecting approvability with respect to CAA section 182(b) (3) would be
the new exemptions for motor raceways, and for marine and aircraft
refueling facilities. We evaluated the new exemptions and concluded
that they would be acceptable under section 182(b)(3) because the fuel
throughput at the one motor raceway facility to which the exemption
applies is far below the 10,000-gallon per month low-throughput
threshold exemption allowed under CAA section 182(b)(3) and because the
exemptions as applied to the race cars themselves and to marine and
aircraft refueling facilities do not apply to apply to ``motor
vehicles'' as defined in CAA section 216(2) and thus are not required
to be subject to stage II vapor recovery requirements under section
182(b)(3). Please see our October 3, 2011 proposed rule at pages 61066
and 61067 for more information about our evaluation of the submitted
statutory provisions and rules for compliance with section 182(b)(3)
and for more information about our proposed waiver under section
202(a)(6).
Compliance With CAA Section 110(l)
In our October 3, 2011 proposed rule, we also evaluated the
statutory provisions and administrative rules submitted by ADEQ as part
of the September 21, 2009 SIP revision under CAA section 110(l) for
possible interference with any applicable requirement concerning
reasonable further progress (RFP) and attainment of any of the NAAQS or
any other applicable requirement under the Act. With respect to this
SIP revision, we found that the only potentially significant adverse
effect on emissions and, thus, potential for interference would stem
from the exclusion of E85 from the definition of ``gasoline'' in ARS
41-2121. The exclusion of E85 from ``gasoline'' would allow for
increased use of E85 (by FFVs) as a motor fuel in the Phoenix
metropolitan area and would result in corresponding change in emissions
from FFVs using E85 relative to the same vehicles using the specially
formulated gasoline (referred to as ``Arizona Cleaner Burning
Gasoline,'' or ``Arizona CBG'') otherwise required.\10\ (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).
---------------------------------------------------------------------------

\10\ EPA's guidance for States in developing their stage II SIPs
in the early 1990s suggested that States use the same definition of
``gasoline'' as the one found in EPA's Standard of Performance for
Bulk Gasoline Terminals at 40 CFR 60.501, which includes ``any
petroleum distillate or petroleum distillate/alcohol blend having a
Reid vapor pressure of 27.6 kilopascals or greater which is used as
a fuel for internal combustion engines.'' EPA recommended using this
definition to most broadly reach situations in which refueling of
motor vehicles results in evaporative VOC emissions that contribute
to ozone nonattainment concentrations, and to avoid a narrow
interpretation of what is ``gasoline'' that would allow significant
VOC emissions from motor vehicle refueling activities in
nonattainment areas to go uncontrolled.
In the existing SIP, Arizona includes a definition of
``gasoline,'' AAC R4-31-901(5), that is consistent with the NSPS
definition. The SIP revision that we are approving today would
replace the existing SIP definition of ``gasoline'' from Arizona's
rules for gasoline vapor recovery (AAC title 20, chapter 2, article
9) with the definition of ``gasoline'' from Arizona's statutes
governing motor fuel (ARS section 41-2121(5)). The definition of
``gasoline'' in ARS section 41-2121(5) is as inclusive as the
existing SIP definition in AAC R4-31-901(5), except for the explicit
exclusion of E85. Given that E85 can only be used by FFVs, and based
on our proposed ``widespread use'' determination with respect to the
FFV fleet in the Phoenix area that would be fueled at E85 dispensing
pumps, we find the exception for E85 from the definition of
``gasoline'' acceptable under CAA section 182(b)(3). Moreover, to
allow for the distribution and sale of E85 in the Phoenix area, a
change in the term of ``gasoline'' (to exclude E85) for stage II
vapor recovery purposes alone would not have sufficed. Because of
the boutique fuel requirements of Arizona CBG that have been
approved into the Arizona SIP, a change in the definition of
``gasoline'' as a motor fuel (to exclude E85) was also necessary.
---------------------------------------------------------------------------

To evaluate the change in emissions, we reviewed a recently
published study from the Journal of the Air & Waste Management
Association titled ``Effect of E85 on Tailpipe Emissions from Light-
Duty Vehicles \11\'' (herein, the ``E85 Vehicle Emissions Study''),
which compiled the results from previous published studies but also
analyzed a significantly larger database compiled by EPA for vehicle
certification purposes. As described in our October 3, 2011 proposed
rule, though the results vary by pollutant and between ``tier 1''
(i.e., model year (MY) 1994-2003) and ``tier 2'' (MY 2004-2008)
vehicles, in general, the study suggests that FFVs using E85 emit fewer
oxides of nitrogen (NOX), carbon monoxide, and particulate
matter (PM) relative to the same FFVs using gasoline. However, with
respect to VOCs, FFVs may well emit greater VOCs than the same FFVs
using gasoline [based on the measurement results for non-methane
organic gases (NMOGs)].\12\
---------------------------------------------------------------------------

\11\ 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.
\12\ Ethanol itself contains no lead (Pb) or sulfur, but the
ethanol portion of E85 does contain some Pb and sulfur due to the
addition of a denaturant, which can comprise up to 5% of the ethanol
portion of E85. The denaturant used by ethanol producers is
typically gasoline (either RFG or conventional gasoline, depending
on where the ethanol plant is located), which has sulfur and Pb
specifications similar to those for CBG. Therefore, a gallon of E85
would have less sulfur and Pb than a gallon of CBG (due to the
dilution provided by the ethanol), and thus the emissions of sulfur
dioxide and Pb from use of E85 in FFVs would be less than the
corresponding emissions from use of CBG in those vehicles.
Therefore, there would be no interference with RFP or attainment of
the Pb and sulfur dioxide NAAQS.
---------------------------------------------------------------------------

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

[[Page 35284]]

attainment of the ambient standards for those pollutants.
We also concluded that the net effect on ozone conditions in the
Phoenix 8-hour ozone nonattainment area would be beneficial despite the
potential higher VOC emission rate by E85-fueled FFVs (relative to CBG-
fueled FFVs) because of the offsetting effect of 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.\13\
---------------------------------------------------------------------------

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

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

D. Proposed Correction of Previous Rulemaking

Lastly, in our October 3, 2011 proposed rule, we described our
direct final action (59 FR 54521, November 1, 1994) to approve the
administrative rules adopted by ADWM to provide for the installation
and operation of stage II vapor recovery systems, and in which we
included erroneous references and failed to identify the specific rules
being incorporated by reference into the SIP. To address this issue, we
proposed, under section 110(k)(6) and 301(a) of the CAA,\14\ to correct
our previous codification of our approval of the stage II vapor
recovery rules to identify the appropriate regulatory agency and to
identify the specific rules that were being approved and incorporated
by reference into the Arizona SIP. Please see our October 3, 2011
proposed rule at page 61068 for more information about our proposed
error correction under CAA section 110(k)(6).
---------------------------------------------------------------------------

\14\ Section 110(k)(6) of the CAA provides that, whenever EPA
determines that the Agency's action approving, disapproving, or
promulgating any plan or plan revision, area designation,
redesignation, classification, or reclassification was in error, EPA
may in the same manner as the approval, disapproval, or promulgation
revise such action as appropriate without requiring any further
submission from the State. Section 301(a) of the CAA authorizes EPA
to prescribe such regulations as are necessary to carry out the
Agency's functions under the CAA.
---------------------------------------------------------------------------

II. Public Comments and EPA Responses

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

III. Final Action

As authorized in section 110(k)(3) of the Act and for the reasons
provided in our October 3, 2011 proposed rule and summarized herein,
EPA is taking final action to approve the statutory provisions and
updated administrative rules establishing certain vapor recovery
requirements in the Phoenix metropolitan area as a revision to the
Arizona SIP. Specifically, we are taking final action to approve
Arizona Revised Statutes (ARS) sections listed in table 1 of this
document and the Arizona Administrative Code (AAC) sections listed in
table 2 of this document.\15\ Second, as authorized under CAA section
202(a)(6), we are taking final action to waive the stage II vapor
recovery requirements at E85 dispensing pumps in the Phoenix area under
CAA section 202(a)(6) based on our conclusion that ORVR is in
widespread use among the FFVs that use such facilities.
---------------------------------------------------------------------------

\15\ Our approval of the statutory provisions and administrative
rules in tables 1 and 2 of this document supersedes the previously
approved versions of the administrative rules in the Arizona SIP
(i.e., AAC Article 9 (``Gasoline Vapor Control''), Rules R4-31-901
through R4-31-910, adopted by the Arizona Department of Weights and
Measures on August 27, 1993, submitted on May 27, 1994, and approved
on November 1, 1994 (59 FR 54521)).
---------------------------------------------------------------------------

In so doing, we conclude that the submitted statutory provisions
and updated administrative rules meet the related requirements for
stage II vapor recovery under CAA section 182(b)(3) and will not
interfere with attainment and RFP of any of the NAAQS or any other CAA
applicable requirement, consistent with the requirements of CAA section
110(l). Final EPA approval of the updated statutory provisions and
rules and incorporation of them into the Arizona SIP makes them
federally enforceable.
Lastly, under section 110(k)(6) and 301(a) of the CAA, we are
taking final action to correct and clarify the incorporation of the
previous version of ADWM's vapor recovery related administrative rules
into the Arizona SIP.

IV. Statutory and Executive Order Reviews

Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve State choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves State law as meeting Federal requirements and
does not impose additional requirements beyond those imposed by State
law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993) given the limited nature of this
SIP revision (as to geographic scope and vehicle applicability);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address disproportionate human health or environmental effects with
practical, appropriate, and legally permissible methods under Executive
Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the
SIP is not approved to apply in Indian country located in the State,
and EPA notes that

[[Page 35285]]

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

The Congressional Review Act, 5 U.S.C. section 801 et seq., as
added by the Small Business Regulatory Enforcement Fairness Act of
1996, generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States. EPA will submit a report containing this
rule and other required information to the U.S. Senate, the U.S. House
of Representatives, and the Comptroller General of the United States
prior to publication of the rule in the Federal Register. A major rule
cannot take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
section 804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by August 13, 2012. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purposes of judicial review nor does
it extend the time within which a petition for judicial review may be
filed, and shall not postpone the effectiveness of such rule or action.
This action may not be challenged later in proceedings to enforce its
requirements (See section 307(b)(2)).

List of Subjects in 40 CFR Parts 52

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

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

Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart D--Arizona

0
2. Section 52.120 is amended by revising paragraph (c)(69)(i)(A) and
adding paragraph (c)(148) to read as follows:

Sec. 52.120 Identification of plan.

* * * * *
(c) * * *
(69) * * *
(i) * * *
(A) Arizona Department of Weights and Measures. (1) Letter from
Grant Woods, Attorney General, State of Arizona, to John U. Hays,
Director, Department of Weights and Measures, dated August 31, 1993,
and enclosed Form R102 (``Certification of Rules and Order of Rule
Adoption'').
(2) Arizona Administrative Code, Article 9 (``Gasoline Vapor
Control''), Rules R4-31-901 through R4-31-910, adopted August 27, 1993,
effective (for state purposes) on August 31, 1993.
* * * * *
(148) The following plan revision was submitted on September 21,
2009 by the Governor's designee.
(i) Incorporation by reference. (A) Arizona Department of Weights
and Measures. (1) Arizona Revised Statutes, title 41 (State
Government), chapter 15 (Department of Weights and Measures), as
amended and supplemented by the general and permanent laws enacted
through the First Special Session, and legislation effective January
11, 2011 of the First Regular Session of the Fiftieth Legislature
(2011):
(i) Article 1 (General Provisions), section 41-2051
(``Definitions''), subsections (6) (``Certification''), (10)
(``Department''), (11) (``Diesel fuel''), (12) (``Director''), and (13)
(``E85''), amended by Laws 2008, Ch. 254, Sec. 2;
(ii) Article 6 (Motor Fuel), section 41-2121 (``Definitions''),
subsection (5) (``Gasoline'') amended by Laws 2007, Ch. 292, Sec. 11;
and
(iii) Article 7 (Gasoline Vapor Control), section 41-2131
(``Definitions''), added by Laws 1992, Ch. 299, Sec. 6; section 41-
2132 (``Stage I and stage II vapor recovery systems''), amended by Laws
2010, Ch. 181, Sec. 2; and section 41-2133 (``Compliance schedules''),
amended by Laws 1999, Ch. 295, Sec. 17.
(2) Arizona Administrative Code, title 20, chapter 2, article 1
(Administration and Procedures), section R20-2-101 (``Definitions''),
effective (for state purposes) on June 5, 2004.
(3) Arizona Administrative Code, title 20, chapter 2, article 9
(Gasoline Vapor Control):
(i) Sections R20-2-901 (``Material Incorporated by Reference''),
R20-2-902 (``Exemptions''), R20-2-903 (``Equipment and Installation''),
R20-2-904 (``Application Requirements and Process for Authority to
Construct Plan Approval''), R20-2-905 (``Initial Inspection and
Testing''), R20-2-910 (``Annual Inspection and Testing''), R20-2-911
(``Compliance Inspections''), and R20-2-912 (``Enforcement''),
effective (for state purposes) on June 5, 2004.
(ii) Sections R20-2-907 (``Operation''), R20-2-908 (``Training and
Public Education''), and R20-2-909 (``Recordkeeping and Reporting''),
effective (for state purposes) on October 8, 1998.

[FR Doc. 2012-14148 Filed 6-12-12; 8:45 am]
BILLING CODE 6560-50-P

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.