[Federal Register Volume 68, Number 125 (Monday, June 30, 2003)]
[Rules and Regulations]
[Pages 38633-38635]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-16026]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[SIP NO. CO-001-0075a; FRL-7512-7]


Approval and Promulgation of Air Quality Implementation Plans; 
State of Colorado; Credible Evidence

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action approving a State 
Implementation Plan (SIP) revision submitted by the Governor of 
Colorado on July 31, 2002. The July 31, 2002, submittal revises 
Colorado Air Quality Control Commission (AQCC) Common Provisions 
Regulation by adding a credible evidence rule. The intended effect of 
this action is to make the credible evidence rule Federally 
enforceable. Also, the Governor's July 31, 2002, submittal contains 
other SIP revisions which will be addressed separately. This action is 
being taken under section 110 of the Clean Air Act (CAA).

DATES: This rule is effective on August 29, 2003, without further 
notice, unless EPA receives adverse comment by July 30, 2003. If 
adverse comment is received, EPA will publish a timely withdrawal of 
the direct final rule in the Federal Register informing the public that 
the rule will not take effect.

ADDRESSES: Written comments may be mailed to Richard R. Long, Director, 
Air and Radiation Program, Mailcode 8P-AR, Environmental Protection 
Agency (EPA), Region 8, 999 18th Street, Suite 300, Denver, Colorado, 
80202. Copies of the documents relevant to this action are available 
for public inspection during normal business hours at the Air and 
Radiation Program, Environmental Protection Agency, Region 8, 999 18th 
Street, Suite 300, Denver, Colorado, 80202 and copies of the 
Incorporation by Reference material are available at the Air and 
Radiation Docket and Information Center, U.S. Environmental Protection 
Agency, Room B-108 (Mail Code 6102T), 1301 Constitution Ave., NW., 
Washington, DC 20460. Copies of the State documents relevant to this 
action are available for public inspection at the Colorado Department 
of Public Health and Environment, Air Pollution Control Division, 4300 
Cherry Creek Drive South, Denver, Colorado 80246-1530.

FOR FURTHER INFORMATION CONTACT: Laurel Dygowski, EPA, Region 8, (303) 
312-6144.

SUPPLEMENTARY INFORMATION: Throughout this document, wherever ``we'' or 
``our'' is used means EPA.

I. Summary of SIP Revision

    Colorado has adopted a credible evidence rule (Colorado AQCC Common 
Provisions Regulation, section II.I) to comply with the EPA's final 
rule concerning credible evidence. On February 24, 1997, EPA 
promulgated regulations under section 113(a) and 113(e)(1) of the CAA 
that gave EPA authority to use all available data to prove CAA 
violations (see 62 FR 6314-8328, February 24, 1997). The final rule 
requires states to include provisions in their SIPs to allow for the 
use of credible evidence for the purposes of submitting compliance 
certifications and for establishing whether or not a person has 
violated a standard in a SIP.
    In accordance with section 110(k)(5) of the CAA, a SIP call was 
issued to the State of Colorado on July 7, 1994, which was later 
superceded by another SIP call on October 20, 1999. In the October 20, 
1999, letter, from William P. Yellowtail, EPA Regional Administrator, 
to Bill Owens, Governor of Colorado, EPA notified the State of Colorado 
that their SIP was inadequate to comply with sections 110(a)(2)(A) and 
(C) of the CAA because the SIP could be interpreted to limit the types 
of credible evidence or information that may be used for determining 
compliance and establishing violations. In response to the SIP call, 
the State of Colorado adopted and submitted a new credible evidence 
rule, Colorado AQCC Common Provisions Regulation, section II.I, titled 
Compliance Certifications. EPA believes that section II.I of Colorado 
AQCC Common Provisions Regulation meets the requirements of 40 CFR 
51.212(c) and is approving it into the SIP.

[[Page 38634]]

II. Final Action

    EPA is approving a SIP revision submitted by the Governor of 
Colorado on July 31, 2002, concerning the use of credible evidence for 
determining compliance and establishing violations. The July 31, 2002, 
submittal revises Colorado AQCC Common Provisions Regulation by adding 
section II.I, titled Compliance Certifications. EPA believes that 
section II.I of Colorado's Common Provisions Regulation meets the 
requirements of 40 CFR 51.212(c) and is approving it into the SIP.
    Section 110(l) of the Clean Air Act states that a SIP revision 
cannot be approved if the revision would interfere with any applicable 
requirement concerning attainment and reasonable further progress 
towards attainment of the NAAQS or any other applicable requirements of 
the Act. The Colorado SIP revisions that are the subject of this 
document do not interfere with the maintenance of the NAAQS or any 
other applicable requirement of the Act because the State of Colorado's 
new credible evidence rule meets the Federal requirements in 40 CFR 
51.212(c) and this rule will enhance the State's efforts in 
implementing the Clean Air Act. Therefore, section 110(l) requirements 
are satisfied.
    EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comments. However, in the ``Proposed Rules'' section of today's 
Federal Register publication, EPA is publishing a separate document 
that will serve as the proposal to approve the SIP revision if adverse 
comments be filed. This rule will be effective August 29, 2003, without 
further notice unless the Agency receives adverse comments by July 30, 
2003. If the EPA receives adverse comments, EPA will publish a timely 
withdrawal in the Federal Register informing the public that the rule 
will not take effect. EPA will address all public comments in a 
subsequent final rule based on the proposed rule. The EPA will not 
institute a second comment period on this action. Any parties 
interested in commenting must do so at this time. Please note that if 
EPA receives adverse comment on an amendment, paragraph, or section of 
this rule and if that provision may be severed from the remainder of 
the rule, EPA may adopt as final those provisions of the rule that are 
not the subject of an adverse comment.

III. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by State law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
State law, it 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).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have federalism 
implications because it does 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 (64 
FR 43255, August 10, 1999). This action merely approves a state rule 
implementing a Federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. This rule also is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not economically 
significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    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. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by August 29, 2003. 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 Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: June 2, 2003.
Robert E. Roberts,
Regional Administrator, Region 8.

0
40 CFR part 52 is amended as follows:

[[Page 38635]]

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 G--Colorado

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2. Section 52.320 is amended by adding paragraph (c)(100) to read as 
follows:


Sec.  52.320  Identification of plan.

* * * * *
    (c) * * *
    (100) EPA is approving a SIP revision submitted by the Governor of 
Colorado on July 31, 2002, concerning the use of credible evidence for 
determining compliance and establishing violations. The July 31, 2002 
submittal revises Colorado Air Quality Control Commission (AQCC) Common 
Provisions Regulation by adding Section II.I, Compliance 
Certifications. Section II.I of Colorado AQCC Common Provisions 
Regulation is approved into the SIP.
    (i) Incorporation by reference.
    (A) Colorado Air Quality Control Commission Common Provisions 
Regulation, Section II.I, effective September 30, 2001.

[FR Doc. 03-16026 Filed 6-27-03; 8:45 am]
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