[Federal Register Volume 75, Number 39 (Monday, March 1, 2010)]
[Rules and Regulations]
[Pages 9107-9111]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-4085]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 80
[EPA-HQ-OAR-2008-0924; FRL-9119-3]
RIN 2060-AP40
Regulation of Fuels and Fuel Additives: Federal Volatility
Control Program in the Denver-Boulder-Greeley-Ft. Collins-Loveland, CO,
1997 8-Hour Ozone Nonattainment Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: This action establishes an applicable standard of 7.8 pounds
per square inch (psi) Reid vapor pressure (RVP) under the federal
volatility control program in the Denver-Boulder-Greeley-Ft. Collins-
Loveland, Colorado, 1997 8-hour ozone nonattainment area during the
high ozone season--June 1st to September 15th of each year-- beginning
in 2010. This action requires the use of 7.8 psi RVP gasoline in Adams,
Arapahoe, Boulder, Broomfield, Denver, Douglas and Jefferson counties,
and in portions of Larimer, and Weld counties.
DATES: This final rule is effective March 31, 2010.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-OAR-2008-0924. All documents in the docket are listed on the
http://www.regulations.gov Web site. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form.
[[Page 9108]]
Publicly available docket materials are available either electronically
through http://www.regulations.gov or in hard copy at the Air and
Radiation Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave.,
NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to
4:30 p.m., Monday through Friday, excluding legal holidays. The
telephone number for the Public Reading Room is (202) 566-1744, and the
telephone number for the Air and Radiation Docket is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: Kurt Gustafson, Office of
Transportation and Air Quality, Transportation and Regional Programs
Division, Mailcode 6406J, Environmental Protection Agency, 1200 Penn
Ave., NW., Washington, DC 20460; telephone number: (202) 343-9219; fax
number: (202) 343-9219; e-mail address: [email protected].
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does This Action Apply to Me?
Regulated Entities. Entities potentially affected by this rule are
fuel producers and distributors who do business in Colorado. Regulated
entities include:
------------------------------------------------------------------------
NAICS
Examples of potentially regulated entities codes \a\
------------------------------------------------------------------------
Petroleum Refineries......................................... 324110
Gasoline Marketers and Distributors.......................... 424710
424720
Gasoline Retail Stations..................................... 447110
Gasoline Transporters........................................ 484220
484230
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\a\ North American Industry Classification System (NAICS).
This table provides only a guide for readers regarding entities
likely to be regulated by this action. You should carefully examine the
regulations in 40 CFR 80.27 to determine whether your facility is
impacted. If you have further questions, call the person listed in the
FOR FURTHER INFORMATION CONTACT section of this preamble.
II. Background
Section 211(h) of the Clean Air Act (CAA), requires that EPA
promulgate regulations establishing a maximum RVP of 9.0 psi for
gasoline introduced into commerce during the high ozone season. It also
provides that EPA shall ``establish more stringent Reid Vapor Pressure
standards in a nonattainment area as the Administrator finds necessary
to generally achieve comparable evaporative emissions (on a per-vehicle
basis) in nonattainment areas, taking into consideration the
enforceability of such standards, the need of an area for emission
control, and economic factors.'' In today's action, EPA is establishing
an applicable standard for gasoline at 7.8 pounds per square inch (psi)
under the federal volatility control program in the Denver-Boulder-
Greeley-Ft. Collins-Loveland, Colorado 8-hour ozone nonattainment area
(as codified in volume 40 of the Code of Federal Regulations (CFR) Part
81) during the high ozone season. This action requires the use of 7.8
psi RVP gasoline in Adams, Arapahoe, Boulder, Broomfield, Denver,
Douglas and Jefferson counties, and in portions of Larimer and Weld
counties.
Gasoline with 7.8 psi RVP is already required in the former 1-hour
ozone nonattainment area, which represents a significant portion of the
fuel used in the newly expanded area. The change codified in this
action extends the low RVP fuel requirement to portions of Larimer and
Weld counties and into the remaining portions of Arapahoe, Adams,
Boulder and Broomfield counties. Denver is located in Petroleum
Administration for Defense Districts (PADD) IV, which is the most
isolated area within the 48 lower states of the U.S. in terms of
supply. PADD IV includes the Rocky Mountain states (Montana, Idaho,
Wyoming, Utah, and Colorado). Gasoline supply to the Denver market
originates from 6 main refiners. These refiners vary in size, refining
capacity and complexity. The refineries are: Suncor (Commerce City,
CO), Valero Corp. (Commerce City, CO), Conoco-Phillips (Borger, TX),
Valero Corp. (Sunray, TX), Sinclair Oil Corp. (Casper and Rawlings,
WY), and Frontier Oil Corp. (Cheyenne, WY and El Dorado, KS).
III. Final Action
EPA is establishing an applicable standard of 7.8 psi RVP under the
federal volatility control program in the Denver-Boulder-Greeley-Ft.
Collins-Loveland, Colorado, 1997 8-hour ozone nonattainment area (as
codified in volume 40 of the Code of Federal Regulations (CFR) Part 81)
during the high ozone season--June 1st to September 15th of each year--
beginning in 2010. This action requires the use of 7.8 psi RVP gasoline
in Adams, Arapahoe, Boulder, Broomfield, Denver, Douglas and Jefferson
counties, and in portions of Larimer, and Weld counties.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the 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.
804(2). This rule will be effective 30 days after publication in the
Federal Register.
IV. Response to Comments
Only one comment was submitted in response to EPA's Notice of
Proposed Rulemaking. Frontier Refining, having identified themselves as
a small refiner, commented that it would be unable to provide
supplemental volumes of low (7.8 psi) RVP gasoline above its current
volume to the Denver metro area and asked for small refiner relief.
Frontier commented that it supplies 3,000 barrels a day of conventional
(9.0 psi) gasoline that would no longer be available for the market in
the 2010 summer control period when a lower vapor pressure is required,
but that it would have the ability to produce the low RVP gasoline for
the 2011 summer control period.
EPA understands the commenter's concerns. We believe that granting
an exemption that would allow Frontier to sell 9.0 RVP fuel in areas
where 7.8 RVP fuel is required would create significant enforcement
issues. The 3,000 barrel per day allocation that Frontier Refining
indicates that it would be unable to convert to lower RVP fuel
represents approximately 3.7% of the total volume supplied daily to the
Denver 8-hour nonattainment area. Although this volume of 9.0 fuel,
which would be sold in the 7.8 areas, would be relatively small, EPA
would likely not be able to determine if fuel at a retail outlet having
an RVP exceeding 7.8 psi is in violation either because it is fuel from
a refinery without an exemption, or fuel supplied by Frontier Refining.
Further, we believe there are other factors such as economic
incentives, for distributors and retailers to sell as much 9.0 RVP fuel
supplied by Frontier Refining as possible in the 7.8 RVP areas, due to
price differentials between products that would exacerbate this
problem. This would likely result in more 9.0 RVP fuel being sold in
the 7.8 RVP area than predicted and thus, affect the emissions
reductions needed in the area. Also, we believe that distributors and
retailers might sell, within the 7.8 RVP fuel
[[Page 9109]]
areas, 9.0 RVP fuel produced by large refiners to obtain the advantage
of the price differential. We do not believe that requiring product
transfer document information, indicating that 9.0 RVP fuel is being
supplied by a small refiner and is useable in the 7.8 RVP fuel areas,
would alleviate the enforcement issues largely because fuel is fungible
as a result of mixing at terminals. This would mean much larger volumes
of fuel would be eligible for the exemption than just the volume
supplied by Frontier Refining, making enforcement by retail sampling
and testing difficult.
Additionally, we have significant concerns about the emission
increases associated with providing this relief, even if the
enforcement problems noted above could be resolved to limit the fuel
receiving the relief. This is because the Denver-Boulder-Greeley-Ft.
Collins-Loveland 8-hour ozone nonattainment area is required to attain
the standard as expeditiously as practicable, but no later than
November 2010. On June 18, 2009, the State submitted an Ozone SIP
revision with a dispersion modeled attainment demonstration. The
attainment demonstration's truncated 2010 design value was 84 ppb; the
modeled design value, however, was 84.8 ppb which is 0.2 ppb below a
violation for the 1997 .08 ppm ozone NAAQS. In addition, the State's
supporting documentation and SIP revision submittal also contain
information (see submission in docket EPA-HQ-OAR-2008-0924) showing
that 7.8 RVP fuel will provide additional reductions of VOC emissions,
which will help ensure the success of Colorado's ozone action plan.
Specifically, implementation of this fuel requirement will provide
approximately three tons per day of additional VOC emission reductions,
which will help the area towards its attainment goal in 2010. As shown
by the attainment demonstration, there is no room in the area for
increased emissions. The risk of failure to attain increases
significantly if the area does not get all the emission reductions
expected from the gasoline volatility program. We also believe the
State's request to implement this program in the expanded 8-hour
nonattainment area is a valid and reasonable request. We note that the
economic hardship for Frontier Refining is limited to the 2010 ozone
season only, and that there are other markets available for its 9.0 psi
gasoline, which means that its product would not be stranded by this
rule. Therefore, we believe that the risk of failure to attain, and the
consequences connected to that outcome, is too great to warrant
granting the relief requested.
Further, we have spoken to other refiners that supply the market
and all have expressed support for the rule. And at least one refiner
has stated it has the capacity to provide more low RVP gasoline to the
area; therefore, it is reasonable to expect that the difference can be
replaced with low RVP gasoline from other sources. In this case the
clear need for the state to receive the emission reductions expected
from this rule, both during the summer of 2010 and later, and the
apparent ability of the industry overall to supply the required low RVP
gasoline warrant not providing the individualized exception to this
rule requested by Frontier Refining.
V. Environmental Impact
The Colorado Department of Public Health and Environment estimated
that 2.7 tons per day of hydrocarbon (HC) emissions would be reduced
from lowering gasoline volatility to 7.8 psi RVP in the expanded Non-
Attainment Area (see docket for analysis).
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and
therefore is not subject to review under the EO.
The Colorado Department of Public Health and Environment prepared
an analysis of the potential costs and benefits associated with this
action. This analysis is contained in ``Analysis of Expansion of Low
RVP Area by the State of Colorado''. A copy of the analysis is
available in the docket for this action.
B. Paperwork Reduction Act
This action does not impose any new information collection burden.
However, the Office of Management and Budget (OMB) has previously
approved the information collection requirements contained in the
existing regulations, the phase I and phase 2 volatility rules (55 FR
11868, March 22, 1989 and 55 FR 23658, June 11, 1990) under the
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and
has assigned OMB control number 2060-0178. The OMB control numbers for
EPA's regulations in 40 CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today's rule on small
entities, small entity is defined as: (1) A small business as defined
by the Small Business Administration's (SBA) regulations at 13 CFR
121.201; (2) a small governmental jurisdiction that is a government of
a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
After considering the economic impacts of today's final rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. The small
entities directly regulated by this final rule are refiners, importers
or blenders of gasoline that choose to produce or import low RVP
gasoline for sale in the expanded portion of the Denver-Boulder-
Greeley-Ft. Collins-Loveland, CO, 8-hour ozone nonattainment area not
already covered by low RVP requirements, and gasoline distributors and
retail stations in those areas. We have determined that only one small
refiner would be affected by the low RVP requirements. Other small
entities, such as gasoline distributors and retail stations located in
the area that will become a covered area as a result of today's action,
will be subject to the same requirements as those small entities which
are located in the current covered area. EPA believes the impacts these
small entities (e.g. small blenders, importers, retailers, etc) would
occur primarily in the form of a slightly higher wholesale gasoline
price which would then be passed along in product price increases. In
the proposed rule, we estimated low RVP incremental costs to be 0.45 to
3.4 cents/gallon during the summer volatility season. There would be no
fuel or price difference outside the summer control season. In the
proposed rule, we indicated that out of total 3.4 million gallons of
gasoline consumed per day in the Denver-Boulder-Greeley-Ft. Collins-
Loveland area during the control season, approximately 133,000 gallons
per day of fuel would need to meet the more stringent low RVP standard.
Applying an average price of $2.50 per gallon for gasoline, the
[[Page 9110]]
incremental costs to produce the needed volume of low RVP gasoline
equates to 0.002% to 0.02% of the total yearly consumer cost of
gasoline in the Denver-Boulder-Greeley-Ft. Collins-Loveland NAA. For
any one retail station that would have to convert entirely from a
stream of 9.0 psi gasoline to low RVP gasoline in the summer season,
the incremental costs, applying the same $2.50 per gallon retail price,
would be 0.2% to 1.4% of the gas revenue during the control season or
0.05% to 0.4% on an annual basis. However, since all wholesale
suppliers would increase prices by about the same amount, the
competitive environment for small entities purchasing that gasoline
should not be affected significantly.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying affected small governments, enabling officials of
affected small governments to have meaningful and timely input in the
development of EPA regulatory proposals with significant Federal
intergovernmental mandates, and informing, educating, and advising
small governments on compliance with the regulatory requirements.
EPA has determined that this rule does not contain a Federal
mandate that may result in expenditures of $100 million or more for
State, local, and tribal governments, in the aggregate, or the private
sector in any one year. Today's rule affects portions of the Denver-
Boulder-Greeley-Ft. Collins-Loveland, CO, 8-hour ozone nonattainment
area that were not previously part of the 1-Hour ozone nonattainment
area. EPA estimates that 133,000 gallons a day of gasoline would be
affected by this rule; resulting in an economic impact of less than
$700,000 per summer. Today's rule, therefore, is not subject to the
requirements of sections 202 and 205 of the UMRA.
EPA has determined that this rule contains no regulatory
requirements that might significantly or uniquely affect small
governments.
E. Executive Order 13132: Federalism
Under Executive Order 13132, EPA may not issue an action that has
federalism implications and that preempts State law, unless the Agency
consults with State and local officials early in the process of
developing the proposed action.
EPA has concluded that this action will have federalism
implications. Moreover, it also may preempt State law. Current gasoline
performance standards adopted by the state require 9.0 psi gasoline in
the affected area where this rule would require 7.8 psi gasoline.
Accordingly, EPA provides the following federalism summary impact
statement as required by section 6(c) of Executive Order 13132.
EPA consulted with State and local officials early in the process
of developing the proposed action to permit them to have meaningful and
timely input into its development. The State indicated to EPA (see
State's docket submission) that the use of 7.8 psi gasoline in the
entire Denver-Boulder-Greeley-Ft. Collins-Loveland, CO, 8-hour ozone
nonattainment area was necessary to ensure the success of Colorado's
ozone action plan. The state requested EPA undertake this rulemaking to
update the boundaries of the low RVP summer gasoline program to
correspond to current 8-hour ozone nonattainment area boundaries.
Gasoline with 7.8 psi RVP is already required in the former 1-hour
ozone nonattainment area, which represents a significant portion of the
fuel used in the newly expanded area. The change requested by the state
and codified in this action extends the low RVP fuel requirement to
portions of Larimer and Weld counties and into the remaining portions
of Arapahoe, Adams, Boulder and Broomfield counties.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). This final rule
impacts portions of the Denver-Boulder-Greeley-Ft. Collins-Loveland,
Colorado, 1997 8-hour ozone nonattainment area not previously part of
the 1-Hour nonattainment area. There are no Tribal lands in the
regulated area. Thus, Executive Order 13175 does not apply to this
action.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
This action is not subject to EO 13045 (62 FR 19885, April 23,
1997) because it is not economically significant as defined in EO
12866, and because the Agency does not believe the environmental health
or safety risks addressed by this action present a disproportionate
risk to children.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a
significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law No. 104-113, 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. NTTAA directs EPA to
provide Congress, through OMB, explanations when the Agency decides not
to use available and applicable voluntary consensus standards.
This action does not involved technical standards. Therefore, EPA
did not consider the use of any voluntary consensus standards.
[[Page 9111]]
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order (EO) 12898 (59 FR 7629, Feb. 16, 1994) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA has determined that this final rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
affect the applicable 8-hour ozone NAAQS which establishes the level of
protection provided to human health or the environment. This rule will
tighten the applicable volatility standard of gasoline during the
summer resulting in slightly lower mobile source emissions. Therefore
disproportionately high and adverse human health or environmental
effects on minority or low-income populations are not an anticipated
result.
VII. Legal Authority and Statutory Provisions
Authority for this final action is in sections 211(h) and 301(a) of
the Clean Air Act, 42 U.S.C. 7545(h) and 7601(a).
List of Subjects in 40 CFR Part 80
Administrative practice and procedures, Air pollution control,
Environmental protection, Fuel additives, Gasoline, Motor vehicle and
motor vehicle engines, Motor vehicle pollution, Penalties, Reporting
and recordkeeping requirements.
Dated: February 19, 2010.
Lisa P. Jackson,
Administrator.
0
Title 40, chapter I, part 80 of the Code of Federal Regulations is
amended as follows:
PART 80--[AMENDED]
0
1. The authority citation for part 80 continues to read as follows:
Authority: 42 U.S.C. 7414, 7545 and 7601(a).
0
2. In Sec. 80.27(a)(2)(ii), the table is amended by revising the entry
for Colorado and footnote 2 to read as follows:
Sec. 80.27 Controls and prohibitions on gasoline volatility.
(a) * * *
(2) * * *
(ii) * * *
Appicable Standards \1\ 1992 and Subsequent Years
--------------------------------------------------------------------------------------------------------------------------------------------------------
State May June July August September
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Colorado \2\....................................................... 9.0 7.8 7.8 7.8 7.8
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Standards are expressed in pounds per square inch (psi).
\2\ The Colorado Covered Area encompasses the Denver-Boulder-Greeley-Ft. Collins-Loveland, CO, 8-hour ozone nonattainment area (see 40 CFR part 81).
* * * * *
[FR Doc. 2010-4085 Filed 2-26-10; 8:45 am]
BILLING CODE 6560-50-P