Federal Register / Vol. 74, No. 162 / Monday, August 24, 2009 / Proposed Rules 42619 

sector of the economy, productivity, 

competition, jobs, the environment, 

public health or safety, or State, local, 

or Tribal governments or communities; 

(2) create a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency; (3) 

materially alter the budgetary impact of 

entitlements, grants, user fees, or loan 

programs or the rights and obligations of 

recipients thereof; or (4) raise novel 

legal or policy issues arising out of legal 

mandates, the President’s priorities, or 

the principles set forth in the Executive 

Order. 

The economic, interagency, 

budgetary, legal, and policy 

implications of this proposed rule have 

been examined, and it has been 

determined to be a significant regulatory 

action under the Executive Order 

because it is likely to result in a rule that 

will raise novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in the Executive Order. 

Unfunded Mandates 

The Unfunded Mandates Reform Act 

of 1995 requires, at 2 U.S.C. 1532, that 

agencies prepare an assessment of 

anticipated costs and benefits before 

issuing any rule that may result in the 

expenditure by State, local, and Tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

(adjusted annually for inflation) in any 

year. This proposed rule would have no 

such effect on State, local, and Tribal 

governments, or on the private sector. 

Catalog of Federal Domestic Assistance 

Numbers and Titles 

The Catalog of Federal Domestic 

Assistance program numbers and titles 

for this rule are 64.109, Veterans 

Compensation for Service-Connected 

Disability and 64.110, Veterans 

Dependency and Indemnity 

Compensation for Service-Connected 

Death. 

List of Subjects in 38 CFR Part 3 

Administrative practice and 

procedure, Claims, Disability benefits, 

Health care, Pensions, Radioactive 

materials, Veterans, Vietnam. 

Approved: June 29, 2009. 

John R. Gingrich, 

Chief of Staff, Department of Veterans Affairs. 

For the reasons set out in the 

preamble, VA proposes to amend 38 

CFR part 3 as follows: 

PART 3—ADJUDICATION 

Subpart A—Pension, Compensation, 

and Dependency and Indemnity 

Compensation 

1. The authority citation for part 3, 

subpart A continues to read as follows: 

Authority: 38 U.S.C. 501(a), unless 

otherwise noted. 

2. Amend § 3.304 as follows. 

a. Revise the introductory text of 

paragraph (f). 

b. Redesignate paragraphs (f)(3) and 

(4) as paragraphs (f)(4) and (5) 

respectively. 

c. Add new paragraph (f)(3). 

The revision and addition read as 

follows: 

§ 3.304 Direct service connection; wartime 

and peacetime. 

* * * * * 

(f) Posttraumatic stress disorder. 

Service connection for posttraumatic 

stress disorder requires medical 

evidence diagnosing the condition in 

accordance with § 4.125(a) of this 

chapter; a link, established by medical 

evidence, between current symptoms 

and an in-service stressor; and credible 

supporting evidence that the claimed inservice stressor occurred. The following 

provisions apply to claims for service 

connection of posttraumatic stress 

disorder diagnosed during service or 

based on the specified type of claimed 

stressor: 

* * * * * 

(3) If a stressor claimed by a veteran 

is related to the veteran’s fear of hostile 

military or terrorist activity and a VA 

psychiatrist or psychologist, or a 

psychiatrist or psychologist with whom 

VA has contracted, confirms that the 

claimed stressor is adequate to support 

a diagnosis of posttraumatic stress 

disorder and that the veteran’s 

symptoms are related to the claimed 

stressor, in the absence of clear and 

convincing evidence to the contrary, 

and provided the claimed stressor is 

consistent with the places, types, and 

circumstances of the veteran’s service, 

the veteran’s lay testimony alone may 

establish the occurrence of the claimed 

in-service stressor. For purposes of this 

paragraph, ‘‘fear of hostile military or 

terrorist activity’’ means that a veteran 

experienced, witnessed, or was 

confronted with an event or 

circumstance that involved actual or 

threatened death or serious injury, or a 

threat to the physical integrity of the 

veteran or others, such as from an actual 

or potential improvised explosive 

device; vehicle-imbedded explosive 

device; incoming artillery, rocket, or 

mortar fire; grenade; small arms fire, 

including suspected sniper fire; or 

attack upon friendly military aircraft, 

and the veteran’s response to the event 

or circumstance involved a 

psychological or psycho-physiological 

state of fear, helplessness, or horror. 

* * * * * 

[FR Doc. E9–20339 Filed 8–21–09; 8:45 am] 

BILLING CODE 8320–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 80 

[EPA–HQ–OAR–2008–0924; FRL–8948–1] 

RIN 2060–AP40 

Regulation of Fuels and Fuel 

Additives: Federal Volatility Control 

Program in the Denver-BoulderGreeley-Ft. Collins-Loveland, CO, 1997 

8-Hour Ozone Nonattainment Area 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: This action proposes to 

establish an applicable standard of 7.8 

pounds per square inch (psi) Reid vapor 

pressure (RVP) under the federal 

volatility control program in the DenverBoulder-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 would require 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: Comments. Comments must be 

received on or before September 23, 

2009, unless a public hearing is 

requested by September 14, 2009. 

Public Hearing. To request a public 

hearing, contact Sean Hillson at (734) 

214–4789 or hillson.sean@epa.gov. If a 

hearing is requested no later than 

September 14, 2009, a hearing will be 

held at a time and place to be published 

in the Federal Register. Persons wishing 

to testify at a public hearing must 

contact Sean Hillson at (734) 214–4789, 

and submit copies of their testimony to 

the docket and to Sean Hillson at the 

addresses below, no later than 10 days 

prior to the hearing. After any such 

hearing, the docket for this rulemaking 

will remain open for an additional 30 

days to receive comments. If a hearing 

is held, EPA will publish a notice in the 

Federal Register extending the 

comment period for 30 days after the 

hearing. 


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42620 Federal Register / Vol. 74, No. 162 / Monday, August 24, 2009 / Proposed Rules 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OAR–2008–0924, by one of the 

following methods: 

• http://www.regulations.gov. Follow 

the on-line instructions for submitting 

comments. 

• E-mail: a-and-r-docket@epa.gov. 

• Fax: (202) 566–1741. 

• Mail: Air and Radiation Docket, 

EPA, Mailcode: 6102T, 1200 

Pennsylvania Ave., NW., Washington, 

DC 20460. Attention Docket ID No. 

EPA–HQ–OAR–2008–0924. Please 

include a duplicate copy, if possible. 

We request that a separate copy of each 

public comment also be sent to the 

contact person listed below (see FOR

FURTHER INFORMATION CONTACT). 

Hand Delivery: Air and Radiation 

Docket, EPA, Room B–102, 1301 

Constitution Ave., NW., Washington, 

DC 20004. Such deliveries are only 

accepted during the Docket’s normal 

hours of operation and special 

arrangements should be made for 

deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–HQ–OAR–2008– 

0924. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov, your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. 

Docket: The Docket ID No. for this 

action is EPA–HQ–OAR–2008–0924. All 

documents in the docket are listed in 

the http://www.regulations.gov index. 

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, will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically in http:// 

www.regulations.gov or in hard copy at 

the Public Reading Room, EPA/DC, EPA 

West, Room B–102, 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: 

Sean Hillson, Office of Transportation 

and Air Quality, Transportation and 

Regional Programs Division, Mailcode 

AASMCG, Environmental Protection 

Agency, 2000 Traverwood Drive, Ann 

Arbor, MI 48105; telephone number: 

(734) 214–4789; fax number: (734) 

214–4052; e-mail address: 

Hillson.Sean@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, whenever 

‘‘we’’, ‘‘us’’, or ‘‘our’’ is used, we mean 

EPA. This document concerns the 

amendment to EPA’s regulations 

governing gasoline supplied to the 

Denver-Boulder-Greeley-Ft. CollinsLoveland, CO, 8-hour ozone 

nonattainment area. 

Regulated Entities. Entities potentially 

affected by this rule are fuel producers 

and distributors who do business in 

Colorado. Regulated entities include: 

Examples of potentially regulated 

entities 

NAICS 

codes a

Petroleum Refineries ........................ 324110 

Gasoline Marketers and Distributors 424710 

424720 

Gasoline Retail Stations ................... 447110 

Gasoline Transporters ...................... 484220 

484230 

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. 

Outline 

I. Introduction 

II. What Is the History of Gasoline Volatility 

Regulation? 

III. What Are the EPA Rulemaking Actions 

Addressing the Transition From the 1- 

Hour to the 8-Hour Ozone NAAQS? 

IV. What Information Supports More 

Stringent Federal RVP Requirements in 

Colorado’s 8-Hour Ozone Nonattainment 

Areas? 

A. History 

B. Cost/Benefit Analysis 

V. Proposed Action 

VI. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

VII. Legal Authority and Statutory Provisions 

I. Introduction 

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 proposing to establish 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. CollinsLoveland, 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 would 

require 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. 

This notice describes our proposed 

action to set the RVP limit for gasoline 


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Federal Register / Vol. 74, No. 162 / Monday, August 24, 2009 / Proposed Rules 42621 

1 72 FR 53952 (Sept. 21, 2007). 

2 52 FR 31274 (Aug. 19, 1987). 

3Hawaii, Alaska and U.S. territories were 

exempted. 

4 54 FR 11868 (Mar. 22, 1989). 

5 55 FR 23658 (June 11, 1990). 

6 56 FR 64704 (Dec. 12, 1991). 

7 55 FR 23658 (June 11, 1990). 

8 62 FR 38856 (July 18, 1997). 

9Whitman v. Am. Trucking Ass’ns, 531 U.S. 457 

(2001). 

10American Trucking Assoc. v. EPA, 195 F.3d 4 

(D.C. Cir., 1999). 

11 69 FR 23857 (Apr. 30, 2004). 

12 69 FR 23951 (Apr. 30, 2004). 

13S. Coast Air Quality Mgmt. Dist. v. EPA, 472 

F.3d 882 (D.C. Cir. 2006 rehearing denied S. Coast 

Air Quality Mgmt. Dist. v. EPA, 2007 U.S. App. 

Lexis 13751 (D.C. Cir. June 8, 2007). 

14 70 FR 71612 (Nov. 29, 2005). 

15 56 FR 56694 (Nov. 6, 1991). 

at 7.8 psi RVP gasoline in the DenverBoulder-Greeley-Ft. Collins-Loveland, 

Colorado, 8-hour nonattainment area 

during the high ozone season. 

This preamble is organized into six 

parts. Section I is this introduction. 

Section II provides the history of federal 

gasoline volatility regulation. Section III 

describes EPA’s rulemaking actions to 

transition from the 1-hour to the 8-hour 

ozone standard. Section IV provides 

information to support the Agency’s 

proposed action regarding tightening of 

the volatility standards in the prior 

Denver Ozone Early Action Compact 

(EAC) area that is now effectively 

designated nonattainment under the 

1997 8-hour ozone standard.1 Section V 

summarizes the Agency’s proposed 

action. Finally, Section VI is a review of 

applicable statutory and Executive 

Orders. 

II. What Is the History of Gasoline 

Volatility Regulation? 

In 1987, EPA determined that gasoline 

nationwide had become increasingly 

volatile, causing an increase in 

evaporative emissions from gasolinepowered vehicles and equipment.2

Evaporative emissions from gasoline, 

referred to as volatile organic 

compounds (VOCs), are precursors to 

the formation of tropospheric ozone and 

contribute to the nation’s ground-level 

ozone problem. Exposure to groundlevel ozone can reduce lung function 

(thereby aggravating asthma or other 

respiratory conditions), increase 

susceptibility to respiratory infection, 

and may contribute to premature death 

in people with heart and lung disease. 

Under section 211(c) of the Clean Air 

Act (CAA or ‘‘the Act’’), we 

promulgated regulations on March 22, 

1989, that set maximum limits for the 

RVP of gasoline sold during the summer 

ozone control season—June 1st to 

September 15th. These regulations were 

referred to as Phase I of a two-phase 

nationwide 3 program, which was 

designed to reduce the volatility of 

commercial gasoline during the summer 

ozone control season.4 On June 11, 

1990, EPA promulgated more stringent 

volatility controls under Phase II of the 

volatility control program.5 These 

requirements established maximum 

RVP standards of 9.0 psi or 7.8 psi 

(depending on the State, the month, and 

the area’s initial ozone attainment 

designation with respect to the 1-hour 

ozone National Ambient Air Quality 

Standard or ‘‘NAAQS’’) during the 

ozone control season. 

The 1990 CAA Amendments 

established a new section, 211(h), to 

address fuel volatility. Section 211(h) 

requires EPA to promulgate regulations 

making it unlawful to sell, offer for sale, 

dispense, supply, offer for supply, 

transport, or introduce into commerce 

gasoline with an RVP level in excess of 

9.0 psi during the ozone control season. 

It further requires EPA to establish more 

stringent RVP standards in 

nonattainment areas if we find such 

standards ‘‘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.’’ Section 211(h) prohibits EPA 

from establishing a volatility standard 

more stringent than 9.0 psi in an 

attainment area, except that we may 

impose a lower (more stringent) 

standard in any former ozone 

nonattainment area redesignated to 

attainment. 

On December 12, 1991, EPA modified 

the Phase II volatility regulations to be 

consistent with section 211(h) of the 

CAA.6 The modified regulations 

prohibited the sale of gasoline with an 

RVP above 9.0 psi in all areas 

designated attainment for the 1-hour 

ozone standard, beginning in 1992. For 

areas designated as nonattainment, the 

regulations retained the original Phase II 

standards published in 1990.7

III. What Are the EPA Rulemaking 

Actions Addressing the Transition 

From the 1-Hour to the 8-Hour Ozone 

NAAQS? 

In July 1997, EPA promulgated a 

revised ozone standard which would be 

measured over an 8-hour period, i.e., the 

8-hour ozone NAAQS or standard.8 The 

8-hr Ozone NAAQS rule was challenged 

by numerous litigants and in May 1999, 

the U.S. Court of Appeals for the D.C. 

Circuit issued a decision remanding, but 

not vacating, the 8-hour ozone standard. 

In February 2001, the Supreme Court 

upheld our authority to set the ozone 

NAAQS and remanded the case to the 

D.C. Circuit Court for disposition of 

issues the Court did not address in its 

initial decision.9 The Court of Appeals 

addressed these remaining issues and 

upheld the 8-hour ozone NAAQS.10 In 

April 2004, EPA designated and 

classified areas for the 1997 8-hr ozone 

standard.11

Additionally, in April 2004, we 

promulgated the Phase 1 Ozone 

Implementation rule that addressed the 

revocation of the 1-hour ozone NAAQS 

and identified the 1-hour requirements 

that would remain applicable after 

revocation (i.e., the ‘‘anti-backsliding 

provisions’’).12 These requirements 

varied based on areas’ designation for 

the 1-hour standard and such areas’ 

designation for the 1997 8-hour ozone 

NAAQS. Although the Phase 1 Ozone 

implementation rule was challenged in 

court and portions of the rule were 

vacated, the vacated portions of the rule 

are not relevant to today’s proposed 

action.13

In November 2005, EPA promulgated 

the Phase 2 Ozone Implementation rule 

that addressed various control and 

planning obligations that are applicable 

to areas designated nonattainment for 

the 1997 8-hour ozone NAAQS.14 No 

part of the Phase 2 Ozone 

implementation rule is relevant for 

today’s proposed rulemaking. 

IV. What Information Supports More 

Stringent Federal RVP Requirements in 

Colorado’s 8-Hour Nonattainment 

Areas? 

A. History 

On November 6, 1991, we published 

ozone nonattainment designations for 

the 1-hour ozone NAAQS pursuant to 

sections 107(d)(1)(C), 107(d)(2)(A), and 

107(d)(4)(A) of the CAA.15 In that 

action, we noted that the DenverBoulder area was designated 

nonattainment by operation of law 

under CAA Section 107(d)(1)(C) and we 

classified it as a ‘‘transitional area’’ as 

determined under section 185A of the 

CAA. The Denver-Boulder 

nonattainment area included the 

following counties: all of Denver, 

Douglas, and Jefferson Counties, 

Boulder County, excluding the Rocky 

Mountain National Park, and the 

portions of Adams and Arapahoe 

Counties west of Kiowa Creek. Because 

the Denver-Boulder area was designated 

as a transitional ozone nonattainment 

area, the applicable volatility standard 

for the Denver-Boulder area, under the 


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42622 Federal Register / Vol. 74, No. 162 / Monday, August 24, 2009 / Proposed Rules 

16See 53 FR 26067 (April 30, 1993); 59 FR 15629 

(April 4, 1994); 61 FR 16391 (April 15, 1996); 63 

FR 31627 (June 10, 1998); and 66 FR 28808 (May 

24, 2001). 17 56 FR 56735 (Nov. 6, 1991). 18 70 FR 44052 (Aug. 1, 2005). 19 72 FR 53952 (Sept. 21, 2007). 20 72 FR 8427 (Feb. 2, 2007). 

Federal RVP rule promulgated on 

December 12, 1991, was 7.8 psi from 

June 1 to September 15 beginning in 

1992. From 1992 through 2003, and in 

response to waiver petitions from the 

Governor of Colorado, however, we 

waived the 7.8 psi RVP standard for the 

Denver area and required the 9.0 psi 

standard instead. In depth discussions 

of these past actions can be found in the 

applicable Federal Register notices.16 In 

2004, based on monitored violations, we 

decided it was appropriate to require 

compliance with the 7.8 psi RVP 

standard in the Denver-Boulder area. As 

a result, the 7.8 psi RVP standard 

currently applies in the area that 

comprised the original Denver-Boulder 

1-hour ozone nonattainment area as 

described in our November 6, 1991 

Federal Register notice.17

As mentioned above, in 1997, EPA 

adopted a new, more stringent ozone 

NAAQS based on the latest ozone health 

effects information. The standard was 

set at a level of 0.08 ppm averaged over 

an 8-hour period. Attainment of the 

standard is based on the 4th maximum 

8-hour ozone concentration recorded at 

each monitoring location each year, 

averaged over a three-year period. 

State and regional agencies in the 

Denver metropolitan area entered into a 

voluntary agreement with EPA in 

December 2002 that laid out a process 

for achieving attainment with EPA’s 

1997 8-hour ozone standard in an 

expeditious manner, but no later than 

December 31, 2007. Called the Early 

Action Compact for Ozone (EAC), the 

agreement sets forth a schedule for the 

development of technical information 

and the adoption of control measures 

into the State Implementation Plan (SIP) 

needed to comply with the 8-hour 

standard by December 31, 2007 and 

maintain the standard beyond that date. 

The EAC Ozone Action Plan (OAP) was 

adopted by the Colorado Air Quality 

Control Commission (AQCC) in March 

2004 and submitted to EPA in the 

summer of 2004. EPA promulgated 

approval of the OAP in the Federal 

Register.18 A revision to the OAP to 

preserve the reductions estimated in the 

original plan was approved by the 

AQCC on December 17, 2006. EPA 

approved the revision in February 2008. 

In April 2004, EPA designated and 

classified areas of the country that 

violated the 1997 8-hour ozone 

standard. Based on 2001–2003 design 

values, the Denver area violated the 8- 

hour ozone standard at three monitors 

and was included on EPA’s 2004 list of 

nonattainment areas. In addition, the 

geographic boundaries of the earlier 

1-hour nonattainment area were 

expanded. However, based on terms in 

the Early Action Compact, EPA deferred 

the effective date of the area’s 

nonattainment designation. The deferral 

was conditioned on the area continuing 

to meet the deadlines in the EAC and 

achieving the 8-hour standard by 

December 31, 2007 (based on air quality 

data from the 2005–2007 ozone 

seasons). 

Despite measures in the OAP that 

reduced ozone-causing emissions in the 

Denver area, the area failed to achieve 

the standard by December 31, 2007. A 

three-year (2005–2007) design value of 

0.085 ppm at one monitor (Rocky Flats 

North), violated the 8-hour ozone 

NAAQS. 

Consequently, EPA did not continue 

the deferral of the effective date of the 

Denver 8-hour ozone nonattainment 

designation. The nonattainment 

designation became effective on 

November 20, 2007.19 The 8-hour ozone 

nonattainment area is referred to as the 

Denver-Boulder-Greeley-Ft. CollinsLoveland, Colorado, ozone 

nonattainment area and includes the 

following counties: All of Adams, 

Arapahoe, Boulder (now including part 

of the Rocky Mountain National Park), 

Broomfield, Denver, Douglas and 

Jefferson Counties, and portions of 

Larimer and Weld Counties. The 

Denver-Boulder-Greeley-Ft. CollinsLoveland 8-hour ozone nonattainment 

area is required to attain the standard as 

expeditiously as practicable, but no later 

than November 2010. 

B. Cost Benefit Analysis 

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 

proposed 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. These 

refineries are: Suncor (Commerce City, 

CO), Valero Corp. (Commerce City, CO), 

Conoco-Phillips (Borger, TX), Valero 

Corp. (Sunray, TX), Sinclair Oil Corp. 

(Caper and Rawlings, WY), and Frontier 

Oil Corp. (Cheyenne, WY and El 

Dorado, KS). 

The State estimates (see docket 

submittal) a total of 3.4 million gallons 

of gasoline per day (1.2 billion gallons 

per year) are consumed in the entire 

1997 8-hour ozone nonattainment area; 

of that, approximately 665,616 gallons 

of gasoline per day (242.9 million 

gallons per year) are utilized in the 9.0 

psi RVP areas of the 8-hour ozone 

nonattainment area. To further bound 

the incremental volume of low RVP 

gasoline that would need to be supplied 

to the expanded 8-hour ozone 

nonattainment area, the State sampled 

gas stations in the proposed expanded 

area and found that approximately 80% 

of gasoline in the expanded 8-hour 

ozone nonattainment area met Denver’s 

more stringent 7.8 psi RVP base gasoline 

volatility requirement. This means that 

only 20% or 133,000 gallons per day, or 

18.4 million gallons per summer (May 

1st through Sept. 15th) will be affected 

if the area’s volatility limit is set at 7.8 

psi from the current 9.0 psi RVP. RVP 

compliance at the retail level runs from 

June 1st to September 15th. The May 1st 

date was used in the economic analysis 

to recognize that low RVP fuel must be 

produced at the refinery level prior to 

the retail compliance date such that 

terminals and retailers have sufficient 

time to turn tanks over prior to their 

required compliance. 

There are two cost estimates applied 

for the proposed volatility control. The 

State estimates that reducing gasoline 

volatility to 7.8 psi RVP in the expanded 

8-hour ozone nonattainment area could 

impact the cost of producing gasoline 

from 0 to 3.4 cents per gallon. We 

modeled the cost of reducing RVP when 

we evaluated the cost of benzene control 

for the Mobile Source Air Toxics 

(MSAT2) rulemaking.20 That analysis 

used the linear program (LP) refinery 

model to estimate the costs. Because 

that analysis did not estimate RVP 

control costs for PADD IV, which 

includes Colorado, we rely on PADD II 

costs to be reflective. The per gallon cost 

estimate for 7.8 psi RVP control from 

that analysis was 0.45 cents per gallon. 

Using 133,000 gallons of gasoline per 

day to represent the share of the 

expanded 8-hour ozone nonattainment 

area gasoline market that would be 

required to meet the 7.8 psi RVP 

standard from June 1st through 

September 15th, at a cost of 0.45 to 3.4 


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cents per gallon, we estimate that 

reducing the gasoline volatility limit to 

7.8 psi RVP for non-blended gasoline in 

this area, would result in a cost of less 

than $700,000 per summer ($600 to 

$4500 per day). Therefore, the marginal 

costs for the expanded nonattainment 

area do not exceed the threshold that 

would classify this action as significant. 

V. Proposed Action and Rationale 

EPA is proposing to establish an 

applicable standard of 7.8 psi RVP 

under the federal volatility control 

program in the Denver-Boulder-GreeleyFt. 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 would 

require 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. 

VI. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

Under Executive Order (EO) 12866 

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

action is a ‘‘significant regulatory 

action.’’ This action raises novel legal or 

policy issues arising out of legal 

mandates. Accordingly, EPA submitted 

this action to the Office of Management 

and Budget (OMB) for review under EO 

12866 and any changes made in 

response to OMB recommendations 

have been documented in the docket for 

this action. 

In addition, 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 and the analysis is 

summarized in Section IV.B. 

B. Paperwork Reduction Act 

The information collection 

requirements contained in the phase I 

and phase 2 volatility rules (55 FR 

11868, March 22, 1989 and 55 FR 

23658, June 11, 1990) have been 

approved by the Office of Management 

and Budget (OMB) under the provisions 

of the Paperwork Reduction Act 44 

U.S.C. 3501 et seq., and have been 

assigned OMB control number 2060– 

0178. This action does not impose any 

new information collection burden 

under the provisions of the Paperwork 

Reduction Act, 44 U.S.C. 3501 et seq., 

and therefore is not subject to these 

requirements. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of 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 proposed 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 proposed 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 DenverBoulder-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 preamble of this notice, 

we have estimated low RVP 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 (i.e., during 

September 15 to May 1). 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. We 

continue to be interested in the 

potential impacts of the proposed rule 

on small entities and welcome 

comments on issues related to such 

impacts. 

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 


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42624 Federal Register / Vol. 74, No. 162 / Monday, August 24, 2009 / Proposed Rules 

Denver-Boulder-Greeley-Ft. CollinsLoveland, CO, 8-hour ozone 

nonattainment area that were not 

previously part of the 1-Hour ozone 

nonattainment area. EPA estimates that 

a 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 

Executive Order 13132, entitled 

‘‘Federalism’’ (64 FR 43255 August 10, 

1999), requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have federalism 

implications.’’ ‘‘Policies that have 

federalism implications’’ is defined in 

the Executive Order to include 

regulations that have ‘‘substantial direct 

effects on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government.’’ 

This final rule does not have 

federalism implications. It will not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. Thus, Executive 

Order 13132 does not apply to this rule. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, November 9, 2000), requires EPA 

to develop an accountable process to 

ensure ‘‘meaningful and timely input by 

tribal officials in the development of 

regulatory policies that have tribal 

implications.’’ This rule does not have 

tribal implications, as specified in 

Executive Order 13175. This proposed 

rule impacts portions of the DenverBoulder-Greeley-Ft. Collins-Loveland, 

Colorado, 1997 8-hour ozone 

nonattainment area not previously part 

of the 1–Hour nonattainment area. Thus, 

Executive Order 13175 does not apply 

to this rule. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

Executive Order 13045, ‘‘Protection of 

Children from Environmental Health 

Risks and Safety Risks’’ (62 FR 19885, 

Apr. 23, 1997) applies to any rule that: 

(1) Is determined to be ‘‘economically 

significant’’ as defined under Executive 

Order 12866, and (2) concerns an 

environmental health or safety risk that 

EPA has reason to believe may have a 

disproportionate effect on children. If 

the regulatory action meets both criteria, 

the Agency must evaluate the 

environmental health or safety effects of 

the planned rule on children, and 

explain why the planned regulation is 

preferable to other potentially effective 

and reasonably feasible alternatives 

considered by the Agency. 

This rule is not subject to the 

Executive Order because it is not 

economically significant as defined in 

Executive Order 12866, and because the 

Agency does not have reason to 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 action is not a ‘‘significant 

energy action’’ as defined in Executive 

Order 13211 (66 FR 28355, May 22, 

2001), because it is not likely to have a 

significant adverse effect on the supply, 

distribution, or use of energy. As 

described in section IV.B., the 

requirement to use low RVP gasoline in 

the expanded nonattainment area will 

result in an increase of roughly 3,200 

barrels per day of low RVP gasoline that 

has to be supplied to the area. This 

increase in the volume of low RVP 

gasoline does not meet the threshold of 

being considered a ‘‘significant energy 

action’’. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, section 12(d) (15 U.S.C. 272 

note) directs EPA to use voluntary 

consensus standards in its regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. Voluntary 

consensus standards are technical 

standards (e.g., materials specifications, 

test methods, sampling procedures, and 

business practices) that are developed or 

adopted by voluntary consensus 

standards bodies. The NTTAA directs 

EPA to provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. 

This action does not involve technical 

standards. Therefore, EPA did not 

consider the use of any voluntary 

consensus standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order (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 

proposed 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 establish 

the level of protection provided to 

human health or the environment. This 

rule will tighten the applicable volatility 

standard of gasoline during the summer 

possibly 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 proposed 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: August 17, 2009. 

Lisa P. Jackson, 

Administrator. 

Title 40, chapter I, part 80 of the Code 

of Federal Regulations is proposed to be 

amended as follows: 


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Federal Register / Vol. 74, No. 162 / Monday, August 24, 2009 / Proposed Rules 42625 

PART 80—[AMENDED] 

1. The authority citation for part 80 

continues to read as follows: 

Authority: 42 U.S.C. 7414, 7545 and 

7601(a). 

2. In § 80.27(a)(2)(ii), the table is 

amended by revising the entry for 

Colorado and footnote 2 to read as 

follows: 

§ 80.27 Controls and prohibitions on 

gasoline volatility. 

(a) * * * 

(2) * * * 

(ii) * * * 

APPLICABLE STANDARDS 1 1992 AND SUBSEQUENT YEARS

State May June July August September 

* * * * * * * 

Colorado 2 ............................................................................. 9.0 7.8 7.8 7.8 7.8 

* * * * * * * 

1Standards are expressed in pounds per square inch (psi). 

2The Colorado Covered Area encompasses the Denver-Boulder-Greeley-Ft. Collins-Loveland, CO, 8-hour ozone nonattainment area (see 40 

CFR part 81). 

* * * * * 

[FR Doc. E9–20290 Filed 8–21–09; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 372 

[EPA–HQ–TRI–2009–0602; FRL–8948–3] 

RIN 2025–AA24 

Toxics Release Inventory Articles 

Exemption Clarification Proposed Rule 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA proposes to take two 

actions relating to the articles 

exemption under the Toxics Release 

Inventory (TRI) program. First, EPA 

proposes to formally remove a 

paragraph of guidance dealing with 

releases due to natural weathering of 

products that appeared in the Reporting 

Forms and Instructions (RF&I) from 

1988 to 2001. This guidance was absent 

from the Reporting Forms and 

Instructions after 2001, but formal 

notice of its removal was never issued. 

EPA here provides notice that this 

language has been removed and may not 

be relied on by reporting facilities. 

Second, EPA is proposing an 

interpretation of how the articles 

exemption applies to the Wood Treating 

Industry, specifically to treated wood 

that has completed the treatment 

process. We are requesting comment on 

both of these actions. 

DATES: Comments, identified by Docket 

ID No. EPA–HQ–TRI–2009–0602, must 

be received by EPA on or before October 

23, 2009. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

TRI–2009–0602, by one of the following 

methods: 

• http://www.regulations.gov: Follow 

the on-line instructions for submitting 

comments. 

• E-mail: oei.docket@epa.gov 

• Mail: OEI Docket, Environmental 

Protection Agency, Mailcode 2822T, 

1200 Pennsylvania Ave., NW., 

Washington, DC 20460. 

• Hand Delivery: EPA/DC, EPA West, 

Room 3334, 1301 Constitution Ave., 

NW., Washington, DC 20460. Such 

deliveries are only accepted during the 

Docket’s normal hours of operation, and 

special arrangements should be made 

for deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–HQ–TRI–2009– 

0602. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

for which disclosure is restricted by 

statute. Do not submit information that 

you consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov, your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters or any form of 

encryption and must be free of any 

defects or viruses. For additional 

information about EPA’s public docket, 

visit the EPA Docket Center homepage 

at http://www.epa.gov/epahome/ 

dockets.htm. 

Docket: All documents in the docket 

are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, e.g., CBI or other 

information for which disclosure is 

restricted by statute. Certain other 

materials, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy at 

the OEI Docket, EPA/DC, EPA West, 

Room 3334, 1301 Constitution Ave., 

NW., Washington, DC. This Docket 

Facility is open from 8:30 a.m. to 4:30 

p.m., Monday through Friday, excluding 

legal holidays. The Public Reading 

Room is open Monday through Friday, 

excluding legal holidays. The telephone 

number for the Public Reading Room is 

(202) 566–1744, and the telephone 

number for the OEI Docket is (202) 566– 

1752. 

FOR FURTHER INFORMATION CONTACT: For 

general information on TRI, contact the 

Emergency Planning and Community 

Right-to-Know Hotline at (800) 424– 

9346 or (703) 412–9810, TDD (800) 553– 

7672, http://www.epa.gov/epaoswer/ 

hotline/. For specific information on 

this rulemaking contact: Steven DeBord, 

Toxics Release Inventory Program 

Division, Mailcode 2844T, OEI, 


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