Federal Register / Vol. 70, No. 234 / Wednesday, December 7, 2005 / Proposed Rules 72741 

based on this proposed rule. EPA will 

not institute a second comment period. 

Any parties interested in commenting 

on this action should 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. 

For additional information, see the 

direct final rule which is located in the 

‘‘Rules and Regulations’’ section of this 

Federal Register. 

Dated: November 30, 2005. 

Carl E. Edlund, 

Acting Regional Administrator, Region 6. 

[FR Doc. 05–23718 Filed 12–6–05; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[R08–OAR–2005–CO–0004; FRL–8005–8] 

Approval and Disapproval and 

Promulgation of Air Quality 

Implementation Plans; Colorado; 

Affirmative Defense Provisions for 

Startup and Shutdown; Common 

Provisions Regulation and Regulation 

No. 1 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to partially 

approve and partially disapprove a State 

Implementation Plan (SIP) revision 

submitted by the State of Colorado. The 

revision establishes affirmative defense 

provisions for source owners and 

operators for excess emissions during 

periods of startup and shutdown. The 

affirmative defense provisions are 

contained in the State of Colorado’s 

Common Provisions regulation. The 

intended effect of this action is to 

propose to approve those portions of the 

rule that are approvable and to propose 

to disapprove those portions of the rule 

that are inconsistent with the Clean Air 

Act. This action is being taken under 

section 110 of the Clean Air Act. In 

addition, EPA is announcing that it no 

longer considers the State of Colorado’s 

May 27, 1998 submittal of revisions to 

Regulation No. 1 to be an active SIP 

submittal. Those revisions, which we 

proposed to disapprove on September 2, 

1999 and October 7, 1999, would have 

provided exemptions from existing 

limitations on opacity and sulfur 

dioxide (SO2) emissions for coal-fired 

electric utility boilers during periods of 

startup, shutdown, and upset. Since our 

proposed disapproval, the State of 

Colorado has removed or replaced the 

provisions in Regulation No. 1 that we 

proposed to disapprove, and has instead 

pursued adoption of the affirmative 

defense provisions in the State of 

Colorado’s Common Provisions 

regulation that we are considering 

today. 

DATES: Comments must be received on 

or before January 6, 2006. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. R08–OAR–

2005–CO–0004, by one of the following 

methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the on-line 

instructions for submitting comments. 

• Agency Web site: http:// 

docket.epa.gov/rmepub/index.jsp. 

Regional Materials in EDOCKET (RME), 

EPA’s electronic public docket and 

comment system for regional actions, is 

EPA’s preferred method for receiving 

comments. Follow the on-line 

instructions for submitting comments. 

• E-mail: long.richard@epa.gov and 

ostrand.laurie@epa.gov. 

• Fax: (303) 312–6064 (please alert 

the individual listed in the FOR FURTHER

INFORMATION CONTACT section if you are 

faxing comments). 

• Mail: Richard R. Long, Director, Air 

and Radiation Program, Environmental 

Protection Agency (EPA), Region 8, 

Mailcode 8P–AR, 999 18th Street, Suite 

200, Denver, Colorado 80202–2466. 

• Hand Delivery: Richard R. Long, 

Director, Air and Radiation Program, 

Environmental Protection Agency 

(EPA), Region 8, Mailcode 8P–AR, 999 

18th Street, Suite 300, Denver, Colorado 

80202–2466. Such deliveries are only 

accepted Monday through Friday, 8 a.m. 

to 4:55 p.m., excluding Federal 

holidays. Special arrangements should 

be made for deliveries of boxed 

information. 

Instructions: Direct your comments to 

Docket ID No. R08–OAR–2005–CO–

0004. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available at http://docket.epa.gov/ 

rmepub/index.jsp, 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 EDOCKET, 

regulations.gov, or e-mail. The EPA’s 

Regional Materials in EDOCKET and 

Federal regulations.gov Web site are 

‘‘anonymous access’’ systems, 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 

EDOCKET or regulations.gov, your email 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. For additional information 

about EPA’s public docket visit 

EDOCKET online or see the Federal 

Register of May 31, 2002 (67 FR 38102). 

For additional instructions on 

submitting comments, go to Section I. 

General Information of the 

SUPPLEMENTARY INFORMATION section of 

this document. 

Docket: All documents in the docket 

are listed in the Regional Materials in 

EDOCKET index at http:// 

docket.epa.gov/rmepub/index.jsp. 

Although listed in the index, some 

information is not publicly available, 

i.e., 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. 

Publicly available docket materials are 

available either electronically in 

Regional Materials in EDOCKET or in 

hard copy at the Air and Radiation 

Program, Environmental Protection 

Agency (EPA), Region 8, 999 18th 

Street, Suite 300, Denver, Colorado 

80202–2466. EPA requests that if at all 

possible, you contact the individual 

listed in the FOR FURTHER INFORMATION

CONTACT section to view the hard copy 

of the docket. You may view the hard 

copy of the docket Monday through 

Friday, 8 a.m. to 4 p.m., excluding 

Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Laurie Ostrand, Air and Radiation 

Program, Mailcode 8P–AR, 

Environmental Protection Agency 

(EPA), Region 8, 999 18th Street, Suite 

200, Denver, Colorado 80202–2466, 

(303) 312–6437, ostrand.laurie@epa.gov. 

SUPPLEMENTARY INFORMATION: 

72742 Federal Register / Vol. 70, No. 234 / Wednesday, December 7, 2005 / Proposed Rules 

1However, for coal-fired electric utility boilers 

located within the Denver Metro PM–10 

nonattainment area, the AQCC specified that the 

provisions would not become state effective until 

EPA issued a final rule approving them. 

2Earlier expressions of EPA’s interpretations 

regarding excess emissions during malfunctions, 

startup, and shutdown are contained in two 

memoranda, one dated September 28, 1982, the 

other February 15, 1983, both titled ‘‘Policy on 

Excess Emissions During Startup, Shutdown, 

Maintenance, and Malfunctions’’ and signed by 

Kathleen M. Bennett. However, the September 1999 

memorandum directly addresses the creation of 

affirmative defenses in SIPs and, therefore, is most 

relevant to this action. 

Table of Contents 

I. General Information 

II. Background of State Submittal 

III. EPA Analysis of State Submittal 

IV. Proposed Action 

V. Statutory and Executive Order Reviews 

Definitions 

For the purpose of this document, we 

are giving meaning to certain words as 

follows: 

(i) The words or initials Act or CAA 

mean or refer to the Clean Air Act, 

unless the context indicates otherwise. 

(ii) The words EPA, we, us or our 

mean or refer to the United States 

Environmental Protection Agency. 

(iii) The initials SIP mean or refer to 

State Implementation Plan. 

(iv) The words State or Colorado 

mean the State of Colorado, unless the 

context indicates otherwise. 

I. General Information 

A. What Should I Consider as I Prepare 

My Comments for EPA? 

1. Submitting CBI. Do not submit this 

information to EPA through Regional 

Materials in EDOCKET, regulations.gov 

or e-mail. Clearly mark the part or all of 

the information that you claim to be 

CBI. For CBI information in a disk or 

CD–ROM that you mail to EPA, mark 

the outside of the disk or CD–ROM as 

CBI and then identify electronically 

within the disk or CD–ROM the specific 

information that is claimed as CBI. In 

addition to one complete version of the 

comment that includes information 

claimed as CBI, a copy of the comment 

that does not contain the information 

claimed as CBI must be submitted for 

inclusion in the public docket. 

Information so marked will not be 

disclosed except in accordance with 

procedures set forth in 40 CFR part 2. 

2. Tips for Preparing Your Comments. 

When submitting comments, remember 

to: 

a. Identify the rulemaking by docket 

number and other identifying 

information (subject heading, Federal 

Register date and page number). 

b. Follow directions—The agency may 

ask you to respond to specific questions 

or organize comments by referencing a 

Code of Federal Regulations (CFR) part 

or section number. 

c. Explain why you agree or disagree; 

suggest alternatives and substitute 

language for your requested changes. 

d. Describe any assumptions and 

provide any technical information and/ 

or data that you used. 

e. If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

f. Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

g. Explain your views as clearly as 

possible, avoiding the use of profanity 

or personal threats. 

h. Make sure to submit your 

comments by the comment period 

deadline identified. 

II. Background of State Submittal 

On July 31, 2002, the State of 

Colorado submitted a SIP revision that 

added affirmative defense provisions for 

excess emissions during startup and 

shutdown. These affirmative defense 

provisions are contained in the 

Common Provisions Regulation at 

section II.J and were adopted by the 

Colorado Air Quality Control 

Commission (AQCC) on August 16, 

2001. 

Previously, on September 2, 1999 (64 

FR 48127) and October 7, 1999 (64 FR 

54601), EPA proposed to disapprove a 

May 27, 1998 SIP submittal from the 

State of Colorado. The May 27, 1998 SIP 

submittal consisted of revisions to 

Colorado Regulation No. 1 to provide 

exemptions from the existing limitations 

on opacity and sulfur dioxide (SO2) 

emissions for coal-fired electric utility 

boilers during periods of startup, 

shutdown, and upset. These revisions 

included changes to sections II.A.1, 

II.A.4, and VI.B.2 of Regulation No. 1, 

and the addition of section II.A.10 and 

VI.B.4.a(iv) to Regulation No. 1. The 

Colorado AQCC adopted the revisions 

on December 23, 1996. For most sources 

they became effective at the state level 

on March 2, 1997.1

On July 31, 2002, the State of 

Colorado submitted additional revisions 

to Colorado Regulation No. 1; these 

were adopted by the Colorado AQCC on 

August 16, 2001. Among other things, 

the July 2002 submittal removed from 

Regulation No. 1 the revisions and 

additions that EPA proposed to 

disapprove in September and October 

1999. The July 2002 submittal deleted 

Regulation No. 1 sections II.A.10 and 

VI.B.4.a(iv), and the revisions to 

sections II.A.1, II.A.4, and VI.B.2 that 

the Governor submitted on May 27, 

1998. The July 2002 submittal also made 

other revisions to Regulation No. 1. 

Because the State of Colorado has 

removed from its regulations the 

provisions that we proposed to 

disapprove in September and October 

1999, we no longer consider the May 27, 

1998 Regulation No. 1 submittal to be an 

active submittal, and at this point, do 

not intend to finalize our proposed 

disapprovals. We have not acted on the 

July 31, 2002 Regulation No. 1 

submittal, but will do so in the future. 

We mention these changes to 

Regulation No. 1 at this time because of 

the link between the Regulation No. 1 

changes and the affirmative defense 

provisions in the Common Provisions 

regulation. The August 16, 2001 

Statement of Basis, Specific Authority, 

and Purpose for Revisions to Regulation 

No. 1 (that was later submitted on July 

31, 2002) indicates that ‘‘as an 

alternative approach, the Commission 

has proposed adoption of Affirmative 

Defense Provisions to be added to the 

Common Provisions Regulation to 

recognize the issues related to periods of 

excess emissions during startup and 

shutdown conditions of coal-fired 

utility boilers and other sources.’’

III. EPA Analysis of State Submittal 

EPA’s interpretations of the Act 

regarding excess emissions during 

malfunctions, startup and shutdown are 

contained in, among other documents, a 

September 20, 1999 memorandum titled 

‘‘State Implementation Plans: Policy 

Regarding Excess Emissions During 

Malfunctions, Startup, and Shutdown,’’

from Steven A. Herman, Assistant 

Administrator for Enforcement and 

Compliance Assurance, and Robert 

Perciasepe, Assistant Administrator for 

Air and Radiation.2 That memorandum 

indicates that because excess emissions 

might aggravate air quality so as to 

prevent attainment and maintenance of 

the national ambient air quality 

standards (NAAQS) or jeopardize the 

prevention of significant deterioration 

(PSD) increments, all periods of excess 

emissions are considered violations of 

the applicable emission limitation. 

However, the memorandum recognizes 

that in certain circumstances states and 

EPA have enforcement discretion to 

refrain from taking enforcement action 

for excess emissions. In addition, the 

memorandum also indicates that states 

can include in their SIPs provisions that 

would, in the context of an enforcement 

action for excess emissions, excuse a 

source from penalties (but not 

injunctive relief) if the source can 

demonstrate that it meets certain 

Federal Register / Vol. 70, No. 234 / Wednesday, December 7, 2005 / Proposed Rules 72743 

3EPA’s September 20, 1999 memorandum 

indicates that the term affirmative defense means, 

in the context of an enforcement proceeding, a 

response or defense put forward by a defendant, 

regarding which the defendant has the burden of 

proof, and the merits of which are independently 

and objectively evaluated in a judicial or 

administrative proceeding. See footnote 4 of the 

attachment to the memorandum. 

4Section II.J.5 may be confusing the concept of 

affirmative defense with the concept of enforcement 

discretion. By definition, an affirmative defense is 

a defense that may be raised in the context of an 

enforcement proceeding before an independent trier 

of fact. Before pursuing an enforcement action, the 

state might evaluate the likelihood that an owner/ 

operator could prove the elements of the affirmative 

defense, but this would go to the state’s exercise of 

enforcement discretion. While the state might 

decide not to pursue an enforcement action based 

on such an evaluation, if EPA or citizens were to 

pursue enforcement action, an independent trier of 

fact might reach a conclusion different from the 

state’s, i.e., that the owner/operator had not proved 

the elements of the affirmative defense. 

objective criteria (an ‘‘affirmative 

defense’’).3 Finally, the memorandum 

indicates that EPA does not intend to 

approve SIP revisions that would 

recognize a state director’s decision to 

bar EPA’s or citizens’ ability to enforce 

applicable requirements. 

We have evaluated Colorado’s 

affirmative defense provisions for 

startup and shutdown and find that, 

except for one paragraph, they are 

consistent with our interpretations 

under the Act regarding the types of 

affirmative defense provisions we can 

approve in SIPs. The Affirmative 

Defense provisions in the Common 

Provisions Regulation, sections II.J.1 

through II.J.4 are consistent with the 

provisions for startup and shutdown we 

suggested in our September 20, 1999 

memorandum. Thus, these provisions 

will provide sources with appropriate 

incentives to comply with their 

emissions limitations and help ensure 

protection of the NAAQS and 

increments and compliance with other 

Act requirements. 

However, we cannot approve the 

provisions in section II.J.5 of the 

Common Provisions regulation. Section 

II.J.5 reads as follows: 

II.J.5. Affirmative Defense Determination: 

In making any determination whether a 

source established an affirmative defense, the 

Division shall consider the information 

within the notification required in paragraph 

2 of this section and any other information 

the division deems necessary, which may 

include, but is not limited to, physical 

inspection of the facility and review of 

documentation pertaining to the maintenance 

and operation of process and air pollution 

control equipment. 

Under this language, the Division 

could make a determination outside the 

context of an enforcement action, or at 

any time during an enforcement action, 

that a source has established the 

affirmative defense. If we were to 

approve section II.J.5, a court might 

conclude that we had ceded the 

authority to the Division to make this 

determination, not just for the State, but 

on behalf of EPA and citizens as well. 

Consequently, a court might also view 

the Division’s determination that a 

source had established the affirmative 

defense as barring an EPA or citizen 

action for penalties. 

As we stated in the September 1999 

memoranda, we do not intend to 

approve SIP language that would allow 

a state’s decision to constrain our or 

citizens’ enforcement discretion. To do 

so would be inconsistent with the 

regulatory scheme established in Title I 

of the Act, which allows independent 

EPA and citizen enforcement of 

violations, regardless of a state’s 

decisions regarding those violations and 

any potential defenses.4

IV. Proposed Action 

We are proposing to approve sections 

II.J.1 through II.J.4 of the Common 

Provisions Regulation submitted on July 

31, 2002 for the reasons expressed 

above. We are proposing to disapprove 

section II.J.5 of the Common Provisions 

Regulation submitted on July 31, 2002 

because this section is inconsistent with 

the Clean Air Act. 

V. Statutory and Executive Order 

Reviews 

A. Executive Order 12866, Regulatory 

Planning and Review 

The Office of Management and Budget 

(OMB) has exempted this regulatory 

action from Executive Order 12866, 

entitled ‘‘Regulatory Planning and 

Review.’’

B. Paperwork Reduction Act 

Under the Paperwork Reduction Act, 

44 U.S.C. 3501 et seq., OMB must 

approve all ‘‘collections of information’’

by EPA. The Act defines ‘‘collection of 

information’’ as a requirement for 

‘‘answers to * * * identical reporting or 

recordkeeping requirements imposed on 

ten or more persons * * * ’’ 44 U.S.C. 

3502(3)(A). Because this proposed rule 

does not impose an information 

collection burden, the Paperwork 

Reduction Act does not apply. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to conduct 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements 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 not-for-profit enterprises, and 

small governmental jurisdictions. 

This proposed rule will not have a 

significant impact on a substantial 

number of small entities because SIP 

approvals and disapprovals under 

section 110 and subchapter I, part D of 

the Clean Air Act do not create any new 

requirements but simply approve or 

disapprove requirements that the State 

is already imposing. Therefore, because 

the Federal SIP approval/disapproval 

does not create any new requirements, 

I certify that this action will not have a 

significant economic impact on a 

substantial number of small entities. 

Moreover, due to the nature of the 

Federal-State relationship under the 

Clean Air Act, preparation of flexibility 

analysis would constitute Federal 

inquiry into the economic 

reasonableness of state action. The 

Clean Air Act forbids EPA to base its 

actions concerning SIPs on such 

grounds. Union Electric Co., v. U.S. 

EPA, 427 U.S. 246, 255–66 (1976); 42 

U.S.C. 7410(a)(2). 

D. Unfunded Mandates Reform Act 

Under sections 202 of the Unfunded 

Mandates Reform Act of 1995 

(‘‘Unfunded Mandates Act’’), signed 

into law on March 22, 1995, EPA must 

prepare a budgetary impact statement to 

accompany any proposed or final rule 

that includes a Federal mandate that 

may result in estimated costs to State, 

local, or tribal governments in the 

aggregate; or to the private sector, of 

$100 million or more. Under section 

205, EPA must select the most costeffective and least burdensome 

alternative that achieves the objectives 

of the rule and is consistent with 

statutory requirements. Section 203 

requires EPA to establish a plan for 

informing and advising any small 

governments that may be significantly 

or uniquely impacted by the rule. 

EPA has determined that the action 

proposed does not include a Federal 

mandate that may result in estimated 

costs of $100 million or more to either 

State, local, or tribal governments in the 

aggregate, or to the private sector. This 

Federal action proposes to partially 

approve and partially disapprove preexisting requirements under State or 

local law, and imposes no new 

requirements. Accordingly, no 

additional costs to State, local, or tribal 

governments, or to the private sector, 

result from this action. 

E. Executive Order 13132, Federalism 

Federalism (64 FR 43255, August 10, 

1999) revokes and replaces Executive 

Orders 12612 (Federalism) and 12875 

72744 Federal Register / Vol. 70, No. 234 / Wednesday, December 7, 2005 / Proposed Rules 

(Enhancing the Intergovernmental 

Partnership). Executive Order 13132 

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.’’ Under 

Executive Order 13132, EPA may not 

issue a regulation that has federalism 

implications, that imposes substantial 

direct compliance costs, and that is not 

required by statute, unless the Federal 

government provides the funds 

necessary to pay the direct compliance 

costs incurred by State and local 

governments, or EPA consults with 

State and local officials early in the 

process of developing the proposed 

regulation. EPA also may not issue a 

regulation 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 

regulation. 

This proposed rule 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, because it 

merely proposes to partially approve 

and partially disapprove state rules 

implementing a federal standard, and 

does not alter the relationship or the 

distribution of power and 

responsibilities established in the Clean 

Air Act. Thus, the requirements of 

section 6 of the Executive Order do not 

apply to this rule. 

F. Executive Order 13175, 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 proposed rule does 

not have tribal implications, as specified 

in Executive Order 13175. It will not 

have substantial direct effects on tribal 

governments, 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. 

This action does not involve or impose 

any requirements that affect Indian 

Tribes. Thus, Executive Order 13175 

does not apply to this rule. 

EPA specifically solicits additional 

comment on this proposed rule from 

tribal officials. 

G. Executive Order 13045, Protection of 

Children From Environmental Health 

Risks and Safety Risks 

Protection of Children from 

Environmental Health Risks and Safety 

Risks (62 FR 19885, April 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 Executive 

Order 13045 because it does not involve 

decisions intended to mitigate 

environmental health or safety risks. 

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 of the National Technology 

Transfer and Advancement Act 

(NTTAA) of 1995 requires Federal 

agencies to evaluate existing technical 

standards when developing a new 

regulation. To comply with NTTAA, 

EPA must consider and use ‘‘voluntary 

consensus standards’’ (VCS) if available 

and applicable when developing 

programs and policies unless doing so 

would be inconsistent with applicable 

law or otherwise impractical. 

The EPA believes that VCS are 

inapplicable to this action. Today’s 

action does not require the public to 

perform activities conducive to the use 

of VCS. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

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

Dated: November 28, 2005. 

Robert E. Roberts, 

Regional Administrator, Region 8. 

[FR Doc. 05–23715 Filed 12–6–05; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[R08–OAR–2005–CO–0003; FRL–8005–6] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Colorado; Revisions to New Source 

Review Rules 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to approve 

those revisions adopted by Colorado on 

April 16, 2004 to Regulation No. 3 

(Stationary Source Permitting and Air 

Pollutant Emission Notice 

Requirements) that incorporate EPA’s 

December 31, 2002 NSR Reforms. 

Colorado submitted the request for 

approval of these rule revisions into the 

State Implementation Plan (SIP) on July 

11, 2005 and supplemented its request 

on October 25, 2005. At this time, EPA 

is proposing to approve only the 

portions of Colorado’s revisions to 

Regulation Number 3 that relate to the 

prevention of significant deterioration 

(PSD) and non-attainment new source 

review (NSR) construction permit 

programs of the State of Colorado. Other 

revisions, renumberings, additions, or 

deletions to Regulation No. 3 made by 

Colorado as part of the April 16, 2004 

final rulemaking will be acted on by 

EPA in a separate action. Colorado has 

a Federally approved New Source 

Review (NSR) program for new and 

modified sources impacting attainment 

and non-attainment areas in the State. 

On December 31, 2002, EPA 

published revisions to the federal 

Prevention of Significant Deterioration 

(PSD) and non-attainment NSR 

regulations. These revisions are 

commonly referred to as ‘‘NSR Reform’’

regulations and became effective 

nationally in areas not covered by a SIP 

on March 3, 2003. These regulatory