13444 Federal Register / Vol. 72, No. 55 / Thursday, March 22, 2007 / Rules and Regulations 

16 473 F.3d. at 1241–42. As noted above, it was 

the Commission’s failure to adequately explain the 

fourth reason that led to the remand. 17As we have noted, the transmission volumes 

utilities report are the utilities’ data. These data are, 

moreover, filed under oath. 18 CFR 382.201(c)(1) 

(2006); see Revision of Annual Charges to Public 

Utilities (PJM Interconnection), 105 FERC ¶ 61,093 

at P 8 (2003); Midwest Independent Transmission 

System Operator, Inc., 103 FERC ¶ 61,048 at P 13–

14, reh’g denied, 104 FERC ¶ 61,060 (2003); CAISO, 

101 FERC ¶ 61,326 at P 9; CAISO, 101 FERC 

¶ 61,043 at P 10. While utilities are thus required 

to report complete and accurate data (by April 30 

of each year), we nevertheless recognize that 

utilities may err in their reporting, and so we allow 

corrections to be filed up to eight months following 

their original filing, i.e., by the end of the calendar 

year. 

18Pennsylvania Elec. Co. v. FERC, 11 F.3d 207, 

211 n.5 (D.C. Cir. 1993); Nat’l Fuel Gas Supply 

Corp. v. FERC, 468 F.3d 831, 834–835 (D.C. Cir. 

2006); United Distribution Cos. v. FERC, 88 F.3d 

1105, 1122 & n.4 (D.C. Cir. 1996); Associated Gas 

Distribs. v. FERC, 824 F.2d 981, 1010 (D.C. Cir. 

1987). 

19 If the Commission finds that the underreporting 

was intentional, it may seek to invoke its civil 

penalty authority as well. 

for denying Westar’s request both alone 

and together justify this policy: (1) The 

regulations expressly required filing of 

corrections by a date certain; (2) waiving 

the deadline would undermine the 

certainty that the annual charges would 

not be indefinitely subject to change; 

and (3) the Commission has never 

suggested it would ignore the deadline 

spelled out in its regulations.16

11. We also announce a policy, going 

forward, as to when we will waive the 

regulation and allow untimely 

submissions. The Commission’s policy 

going forward will be to grant waiver 

and accept only those late-filed 

corrections discovered through a 

Commission-conducted audit in order to 

remedy an underreporting of 

transmission volumes (and thus where 

other utilities have subsidized the 

underreporting utility). 

12. As stated above, the Commission 

allocates its collectible electric 

regulatory program costs among public 

utilities. A reduction in the amount 

owed by one utility necessarily has an 

effect, an increase, on the amount owed 

by all of the others. Therefore, if a utility 

does not accurately report its 

transmission volumes, the Commission 

cannot charge it appropriately.17 The 

allocation of costs based on 

transmission volumes creates a natural 

incentive for utilities to underreport 

their transmission volumes in a given 

year. Just as public utilities have a 

natural incentive to ‘‘abuse their market 

power,’’ 18 so, by analogy, public 

utilities subject to reporting 

transmission volumes for purposes of 

calculating their proportionate share of 

the Commission’s collectible electric 

regulatory program costs have similar 

incentives to underreport their 

transmission volumes and thereby 

reduce the costs allocated to them. The 

effect of such underreporting is an 

inequitable subsidization by other 

utilities of any utility that 

underreported. The agency’s audit 

process provides a check on that natural 

incentive. Therefore, the Commission 

will allow late-filed corrections 

resulting from an audit revealing that a 

utility has underreported its 

transmission volumes and consequently 

forced other utilities to bear costs that 

should have been borne by the 

underreporting utility. The Commission 

thus retains its ability to make right the 

situation where the remainder of the 

industry has paid amounts which 

rightfully were owed by another.19

13. However, the reverse is not true. 

Overreporting does not raise the same 

concerns as underreporting; if a 

company overreports its transmission 

volumes and fails to file corrections by 

the deadline, it does so to its detriment 

and harms no one but itself. Errors of 

overreporting discovered after the 

deadline, by Commission-conducted 

audit or otherwise, thus may not be 

corrected. The D.C. Circuit 

acknowledged that any one of the first 

three justifications provided by the 

Commission, described above, justify a 

Commission policy of not accepting a 

corrected FERC 582 after the deadline. 

Indeed, the Commission need not have 

structured its regulation to allow 

corrections at all. The data the utilities 

must report is, after all, the utilities’

data, and that data must be filed under 

oath; in other words, full and complete 

reporting at the outset should be the 

norm. The Commission, however, 

elected to build leniency into its 

requirement to submit transmission 

volumes, in the form of an 8-month 

window from the April 30 filing 

deadline to the December 31 corrections 

deadline. That 8-month window 

provides more than sufficient time for 

utilities to identify and correct their 

overreporting. 

The Commission orders: 

(A) The Commission hereby grants 

waiver of the annual charges reporting 

requirement, FERC 582, to allow Westar 

to submit corrected information for FY 

2002 (reporting corrected calendar year 

2001 transmission data). The upcoming 

annual charges will be calculated to 

reflect this corrected information. 

(B) The Secretary is hereby directed to 

publish this order in the Federal 

Register. 

By the Commission. 

Philis J. Posey, 

Acting Secretary. 

[FR Doc. E7–5052 Filed 3–21–07; 8:45 am] 

BILLING CODE 6717–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 60 

[MSN–2006–1; FRL–8290–4] 

New Stationary Sources; Supplemental 

Delegation of Authority to the 

Mississippi Department of 

Environmental Quality 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Delegation of authority. 

SUMMARY: The Mississippi Department 

of Environmental Quality (MSDEQ or 

agency) has requested that EPA delegate 

authority for implementation and 

enforcement of existing New Source 

Performance Standards (NSPS) which 

have been previously adopted by the 

agency but have remained undelegated 

by EPA, and has requested that EPA 

approve the mechanism for delegation 

(adopt-by-reference) of future NSPS. 

The purpose of MSDEQ’s request for 

approval of its delegation mechanism is 

to streamline existing administrative 

procedures by eliminating any 

unnecessary steps involved in the 

Federal delegation process. With this 

NSPS delegation mechanism in place, a 

new or revised NSPS promulgated by 

EPA will become effective in the State 

of Mississippi on the date the NSPS is 

adopted-by-reference pursuant to a 

rulemaking of the MSDEQ, if the agency 

adopts the NSPS without change. 

‘‘Adopt-by-reference’’ means the EPA 

promulgated standard has been adopted 

directly into the State regulations by 

reference to the Federal law. No further 

agency requests for delegation will be 

necessary. Likewise, no further Federal 

Register notices will be published. 

In this action, EPA is delegating 

authority to MSDEQ for implementation 

and enforcement of existing NSPS 

which have been previously adopted by 

MSDEQ and which are identified in the 

Supplementary Information section 

below. In addition, EPA is approving 

MSDEQ’s ‘‘adopt-by-reference’’

mechanism for delegation of future 

NSPS. 

DATES: Effective Date: The effective date 

is March 22, 2007. 

ADDRESSES: Copies of the request for 

delegation of authority are available for 

public inspection during normal 


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Federal Register / Vol. 72, No. 55 / Thursday, March 22, 2007 / Rules and Regulations 13445 

business hours at the following 

locations: 

Environmental Protection Agency, 

Region 4, Air Toxics and Monitoring 

Branch, 61 Forsyth Street, SW., Atlanta, 

Georgia 30303; 

Mississippi Department of 

Environmental Quality, P.O. Box 10385, 

Jackson, Mississippi 39289–0385. 

Effective immediately, all requests, 

applications, reports and other 

correspondence required pursuant to 

the delegated standards should not be 

submitted to the Region 4 office, but 

should instead be submitted to the 

following address: 

Mississippi Department of 

Environmental Quality, P.O. Box 10385, 

Jackson, Mississippi 39289–0385. 

FOR FURTHER INFORMATION CONTACT: 

Keith Goff, Air Toxics and Monitoring 

Branch, Air, Pesticides and Toxics 

Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street, SW., 

Atlanta, Georgia 30303–8960, 404–562–

9137. Mr. Goff can also be reached via 

electronic mail at goff.keith@epa.gov. 

SUPPLEMENTARY INFORMATION: Sections 

101, 110, 111(c)(1), and 301 of the Clean 

Air Act authorize EPA to delegate 

authority to implement and enforce the 

standards set out in 40 CFR Part 60, 

NSPS. On November 30, 1981, EPA 

initially delegated the authority for 

implementation and enforcement of the 

NSPS program to the MSDEQ. This 

agency has subsequently requested a 

delegation of authority for 

implementation and enforcement of the 

previously adopted, undelegated part 60 

NSPS categories listed below. 

1. 40 CFR part 60, subpart Eb, adopted 

January 25, 1996. 

2. 40 CFR part 60, subpart Ec, adopted 

January 22, 1998. 

3. 40 CFR part 60, subpart WWW, 

adopted August 22, 1996. 

4. 40 CFR part 60, subpart AAAA, 

adopted August 22, 2002. 

5. 40 CFR part 60, subpart CCCC, 

adopted August 22, 2002. 

EPA’s review of Mississippi’s 

pertinent laws, rules, and regulations 

has shown them to be adequate for 

implementation and enforcement of 

these existing, previously adopted, 

undelegated NSPS. Based on this 

review, EPA has determined that 

delegation of the above-referenced NSPS 

is appropriate, with the non-delegable 

exceptions noted below. All sources 

subject to the delegable requirements in 

these NSPS subparts will now be under 

the jurisdiction of the MSDEQ, although 

EPA reserves the right to implement the 

Federal NSPS directly and continues to 

retain concurrent enforcement 

authority. The NSPS subparts and 

portions of subparts that may not be 

delegated, and are therefore not 

delegated by this action are: 

1. Subpart A—§ 60.8(b) (2) and (3), § 60.11(e) 

(7) and (8), § 60.13 (g), (i) and (j)(2) 

2. Subpart B—§ 60.22, § 60.27, and § 60.29 

3. Subpart Da—§ 60.45a 

4. Subpart Db—§ 60.44b(f), § 60.44b(g), 

§ 60.49b(a)(4) 

5. Subpart Dc—§ 60.48c(a)(4) 

6. Subpart Ec—§ 60.56c(i) 

7. Subpart J—§ 60.105(a)(13)(iii), 

§ 60.106(i)(12) 

8. Subpart Ka—§ 60.114a 

9. Subpart Kb—§ 60.111b(f)(4), § 60.114b, 

§ 60.116b(e)(3) (iii) and (iv), 

§ 60.116b(f)(2)(iii) 

10. Subpart O—§ 60.153(e) 

11. Subpart EE—§ 60.316(d) 

12. Subpart GG—§ 60.334(b)(2), § 60.335(f)(1) 

13. Subpart RR—§ 60.446(c) 

14. Subpart SS—§ 60.456(d) 

15. Subpart TT—§ 60.466(d) 

16. Subpart UU—§ 60.474(g) 

17. Subpart VV—§ 60.482–1(c)(2) and 

§ 60.484 

18. Subpart WW—§ 60.496(c) 

19. Subpart XX—§ 60.502(e)(6) 

20. Subpart AAA—§ 60.531, § 60.533, 

§ 60.534, § 60.535, § 60.536(i)(2), § 60.537, 

§ 60.538(e), § 60.539 

21. Subpart BBB—§ 60.543(c)(2)(ii)(B) 

22. Subpart DDD—§ 60.562–2(c) 

23. Subpart III—§ 60.613(e) 

24. Subpart NNN—§ 60.663(e) 

25. Subpart RRR—§ 60.703(e) 

26. Subpart SSS—§ 60.711(a)(16), 

§ 60.713(b)(1)(i), § 60.713(b)(1)(ii), 

§ 60.713(b)(5)(i), § 60.713(d), § 60.715(a), 

§ 60.716 

27. Subpart TTT—§ 60.723(b)(1), 

§ 60.723(b)(2)(i)(C), § 60.723(b)(2)(iv), 

§ 60.724(e), § 60.725(b) 

28. Subpart VVV—§ 60.743(a)(3)(v)(A) and 

(B), § 60.743(e), § 60.745(a), § 60.746 

29. Subpart WWW— § 60.754(a)(5) 

30. Subpart CCCC—§ 60.2030(c) 

In addition, EPA is approving 

MSDEQ’s ‘‘adopt-by-reference’’

delegation mechanism for future NSPS. 

EPA’s review of the pertinent laws, 

rules, and regulations for the agency has 

shown them to be adequate for 

implementation and enforcement of 

existing, previously adopted, 

undelegated NSPS and future NSPS. 

Future NSPS regulations will contain a 

list of sections that cannot be delegated 

for that subpart. With this NSPS ‘‘adoptby-reference’’ delegation mechanism in 

place, a new or revised NSPS 

promulgated by EPA will become 

effective in the State of Mississippi on 

the date the NSPS is adopted-byreference pursuant to a rulemaking of 

the Mississippi Department of 

Environmental Quality, if the agency 

adopts the NSPS without change. EPA 

reserves the right to implement the 

Federal NSPS directly and continues to 

retain concurrent enforcement 

authority. 

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 imposes no 

additional requirements beyond those 

imposed by state law. Accordingly, the 

Administrator certifies that this action 

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 

action delegates pre-existing 

requirements under Federal law and 

does not impose any additional 

enforceable duty beyond that required 

by Federal 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 action 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 

delegates the implementation and 

enforcement of an existing Federal 

standard and approves a delegation 

mechanism for future Federal standards, 

and does not alter the relationship or 

the distribution of power and 

responsibilities established in the Clean 

Air Act. This action 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. The 

Congressional Review Act, 5 U.S.C. 801 

et seq., as added by the Small Business 

Regulatory Enforcement Fairness Act of 

1996, does not apply because this action 

is not a rule, as that term is defined in 

5 U.S.C. 804(3). 


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13446 Federal Register / Vol. 72, No. 55 / Thursday, March 22, 2007 / Rules and Regulations 

In reviewing delegation requests and 

mechanisms for delegation, 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 delegation request or 

disapprove a proposed delegation 

mechanism for failure to use VCS. It 

would thus be inconsistent with 

applicable law for EPA, when it reviews 

a delegation request or proposed 

delegation mechanism, to use VCS in 

place of a delegation request or 

proposed delegation mechanism 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 action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act of 1995 (44 U.S.C. 3501 et seq.). 

This action granting delegation 

authority for implementation and 

enforcement of existing NSPS and 

approving a delegation mechanism for 

future NSPS is issued under the 

authority of sections 101, 110, 111, and 

301 of the Clean Air Act, 42 U.S.C. 

7401, 7410, 7411, and 7601. 

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

Dated: March 1, 2007. 

Russell L. Wright, Jr., 

Acting Regional Administrator, Region 4. 

[FR Doc. E7–5261 Filed 3–21–07; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 281 

[FRL–8290–7] 

Colorado; Final Approval of State 

Underground Storage Tank Program 

AGENCY: Environmental Protection 

Agency. 

ACTION: Notice of Final Determination 

on the State of Colorado’s Application 

for Final Approval. 

SUMMARY: The State of Colorado has 

applied for approval of the underground 

storage tank program under Subtitle I of 

the Resource Conservation and 

Recovery Act (RCRA). The 

Environmental Protection Agency (EPA) 

has reviewed the Colorado application 

and has reached a final determination 

that Colorado’s underground storage 

tank program satisfies all of the 

requirements necessary to qualify for 

approval under the regulations. Thus, 

the EPA is granting final approval to the 

State of Colorado to operate its 

Underground Storage Tank Program for 

petroleum and hazardous substances. 

DATES: Effective Date: Final approval for 

the State of Colorado’s Underground 

Storage Tank Program is effective on 

April 23, 2007. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R08–UST–2006–0295. All 

documents in the docket are listed on 

the http://www.regulations.gov Web 

site. Although listed in the index, some 

information is not publicly available 

e.g., CBI or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard form. Publicly 

available docket materials are available 

either electronically through http:// 

www.regulations.gov or in hard copy at 

the following addresses: (1) Colorado 

Department of Labor & Employment, 

Division of Oil and Public Safety, Public 

Records Center, 633 17th Street, Suite 

200, Denver, CO 80202 from 8 a.m. to 

Noon, and (2) U.S. EPA, Library, Region 

8, 1595 Wynkoop Street, Room 2139, 

Denver, CO 80202–1129 from 10 a.m. to 

4 p.m. We recommend that you contact 

Francisca Chambus, UST Team, at 

303.312.6782 before visiting the Region 

8 office. 

FOR FURTHER INFORMATION CONTACT: 

Francisca Chambus U.S. EPA, Region 8, 

MC: 8P–W–GW, 1595 Wynkoop Street, 

Denver, CO 80202–1129 or at 

303.312.6782. 

SUPPLEMENTARY INFORMATION: 

I. Background 

Section 9004 of the Resource 

Conservation and Recovery Act (RCRA) 

authorizes EPA to approve State 

underground storage tank programs to 

operate in the State in lieu of the 

Federal underground storage tank (UST) 

program. Program approval may be 

granted by EPA pursuant to RCRA 

section 9004(b), if the Agency finds that 

the State program: Is ‘‘no less stringent’’

than the Federal program for the seven 

elements set forth at RCRA section 

9004(a)(1) through (7); includes the 

notification requirements of RCRA 

section 9004(a)(8); and provides for 

adequate enforcement of compliance 

with UST standards of RCRA section 

9004(a). Note that RCRA sections 9005 

(on information-gathering) and 9006 (on 

Federal enforcement) by their terms 

apply even in states with programs 

approved by EPA under RCRA section 

9004. Thus, the Agency retains its 

authority under RCRA sections 9005 

and 9006, 42 U.S.C. 6991d and 6991e, 

and other applicable statutory and 

regulatory provisions to undertake 

inspections and enforcement actions in 

approved states. With respect to such an 

enforcement action, the Agency will 

rely on Federal sanctions, Federal 

inspection authorities, and Federal 

procedures rather than the State 

authorized analogues to these 

provisions. 

II. Colorado 

The Colorado Department of Labor & 

Employment, Division of Oil & Public 

Safety (OPS) is the lead implementing 

agency for the UST program in 

Colorado. 

On November 13, 2002 the EPA 

received Colorado’s application for State 

Program Approval (SPA) of Colorado’s 

UST program. EPA reviewed their 

application and determined it to be 

complete. On November 27, 2006, the 

EPA published a tentative decision 

announcing its intent to grant Colorado 

final approval. Along with the tentative 

determination, EPA announced the 

availability of the application for public 

comment and provided notice that a 

public hearing would be provided if 

significant public interest was shown. 

EPA did not receive any comments or 

requests for a public hearing. 

III. Decision 

I conclude that the State of Colorado’s 

application for final program approval 

meets all of the statutory and regulatory 

requirements established by Subtitle I of 

RCRA. Accordingly, Colorado is granted 

final approval to operate its 

Underground Storage Tank Program in 

lieu of the Federal program. This final 

determination to approve the Colorado 

program applies to all areas within the 

State except for land within formal 

Indian reservations located within or 

abutting the State of Colorado, 

including: the Ute Mountain Ute and 

Southern Ute Indian Reservations, any 

off-reservation land held in trust by the 

United States for an Indian tribe; and 

any other areas that are ‘‘Indian 

country’’ within the meaning of 18 

U.S.C. 1151. The State of Colorado now 

has the responsibility for managing 

underground storage tank facilities 

within its borders and carrying out all 

aspects of the UST program except for 

facilities located within ‘‘Indian 

Country,’’ where EPA will retain 

regulatory authority. Colorado also has 

primary enforcement responsibility, 

although EPA retains the right to 

conduct inspections under section 9005 

of RCRA 42 U.S.C. 6991d and to take 


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