Federal Register / Vol. 72, No. 74 / Wednesday, April 18, 2007 / Rules and Regulations 19385 

information collection burden under the 

provisions of the Paperwork Reduction 

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

The Congressional Review Act (CRA), 

5 U.S.C. 801 et seq., as added by the 

Small Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. Section 808 allows 

the issuing agency to make a rule 

effective sooner than otherwise 

provided by the CRA if the agency 

makes a good cause finding that notice 

and public comment procedures are 

impracticable, unnecessary or contrary 

to the public interest. This 

determination must be supported by a 

brief statement, 5 U.S.C. 808(2). As 

stated previously, EPA has made such a 

good cause finding, including the 

reasons therefore, and established an 

effective date of May 18, 2007. 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. These corrections to the 

identification of plan for Utah are not a 

‘‘major rule’’ as defined by 5 U.S.C. 

804(2). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Incorporation by reference, 

Intergovernmental relations, Reporting 

and recordkeeping requirements. 

Dated: April 9, 2007. 

Kerrigan G. Clough, 

Acting Regional Administrator, Region VIII. 

■ Chapter I, title 40 of the Code of 

Federal Regulations is amended as 

follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart TT—UTAH 

■ 2. Section 52.2320 is amended as 

follows: 

■ a. In paragraph (c)(59)(i)(A) by 

removing the phrase ‘‘R307–301–1, 

R307–301–2, and R307–301–4 through 

R307–301–14 effective November 12, 

1998;’’ and by revising the phrase that 

reads ‘‘R307–302–1, R307–302–2 and 

R307–302–4 effective September 15, 

1998’’ to read ‘‘R307–302–1, R302–302–

2 (except paragraph (4)) and R307–302–

4 effective September 15, 1998.’’

■ b. By revising paragraph (c)(64)(i)(A) 

as follows: 

§ 52.2320 Identification of plan. 

* * * * * 

(c) * * * 

(64) * * * 

(i) * * * 

(A) Utah Administrative Code 

sections: R307–170–7(1); 307–170–4; 

R307–170–5(1)(b); R307–170–5(7); 

R307–170–7(6); R307–170–7(6)(a) and 

(b); and in R307–170–9 sections (5)(a) 

and (d), (6)(b), (7)(a)(i), (7)(b), and (9)(a); 

effective January 5, 2006. 

■ 3. Section 52.2352 is amended by 

adding paragraph (f) to read as follows: 

§ 52.2352 Change to approved plan. 

* * * * * 

(f) Utah Administrative Code (UAC) 

rule R307–1–4.06, Continuous Emission 

Monitoring Systems Program (CEMSP), 

is removed from Utah’s approved State 

Implementation Plan (SIP). This rule 

has been superseded and replaced by 

rule R307–170, Continuous Emission 

Monitoring Program. 

[FR Doc. E7–7201 Filed 4–17–07; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 63 and 65 

[EPA–HQ–OAR–2004–0094; FRL–8301–2] 

RIN 2060–AO40 

National Emission Standards for 

Hazardous Air Pollutants: General 

Provisions: Notice of Decision Denying 

Petition for Reconsideration 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice of decision denying 

petition for reconsideration. 

SUMMARY: On April 20, 2006, EPA 

published final rules entitled, ‘‘National 

Emission Standards for Hazardous Air 

Pollutants: General Provisions.’’

Following that final action, the 

Administrator received a petition for 

reconsideration from Coalition for a Safe 

Environment (CFASE). CFASE’s petition 

for reconsideration can be found in the 

rulemaking docket under Docket ID No. 

EPA–HQ–OAR–2004–0094. After 

carefully considering the petition and 

information in the rulemaking docket, 

EPA is denying CFASE’s petition for 

reconsideration. 

ADDRESSES: The docket for EPA’s denial 

of CFASE’s petition for reconsideration 

is Docket ID No. EPA–HQ–OAR–2004–

0094. All documents in the docket are 

listed on the www.regulations.gov Web 

site. Although listed in the index, some 

information may not be publicly 

available, i.e., confidential business 

information 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 through 

www.regulations.gov or in hard copy at 

the EPA Docket Center, Docket ID No. 

EPA–HQ–OAR–2004–0094, EPA West, 

Room 3334, 1301 Constitution Ave., 

NW., Washington, DC. The Public 

Reading Room is open from 8:30 a.m. to 

4:30 p.m., Monday through Friday, 

excluding legal holidays. The telephone 

number for the Public Reading Room is 

(202) 566–1744, and the telephone 

number for the EPA Docket Center is 

(202) 566–1742. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Rick Colyer, U.S. EPA Office of Air 

Quality Planning and Standards, Sector 

Policies and Programs Division, 

Program Design Group (D205–02), 

Research Triangle Park, NC 27711; 

telephone number (919) 541–5262; fax 

number (919) 541–5600; e-mail address: 

colyer.rick@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

In addition to being available in the 

docket, an electronic copy of today’s 

notice of EPA’s decision denying 

CFASE’s petition for reconsideration 

will also be available on the WWW 

through the Technology Transfer 

Network (TTN). Following signature, a 

copy of this notice will be posted on the 

TTN’s policy and guidance page for 

newly promulgated rules at http:// 

www.epa.gov/ttn/oarpg. The TTN 

provides information and technology 

exchange in various areas of air 

pollution control. 

Outline. The information presented in 

this preamble is organized as follows: 

I. General Information 

II. Background Information 

III. Basis for Denial of Reconsideration 

II. Background Information 

On April 20, 2006, EPA issued certain 

amendments to the 40 CFR parts 63 and 

65 startup, shutdown, and malfunction 

(SSM) general provisions requirements 

affecting sources subject to the National 

Emission Standards for Hazardous Air 

Pollutants (NESHAP). On June 19, 2006, 

EarthJustice filed a petition for review 

challenging those amendments in the 


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19386 Federal Register / Vol. 72, No. 74 / Wednesday, April 18, 2007 / Rules and Regulations 

1This petition denial describes the general duty 

to minimize emissions as it applies during SSM 

events and does not address the application of the 

general duty to minimize emissions at other times. 

2EPA responded to the comments by revising 40 

CFR 63.10(d)(5)(i) and (ii) to require that a 

description of actions taken to minimize emissions 

be included in SSM reports whether or not the SSM 

plan was followed. EPA also revised the 

recordkeeping requirement at 40 CFR 

63.10(b)(2)(v)(the requirement to keep a record of 

‘‘all information necessary to demonstrate 

conformance’’ with the SSM plan when actions 

taken during SSM events are consistent with the 

SSM plan) to require that such records include all 

actions taken during the SSM event to minimize 

emissions. 70 FR at 20448. 

United States Court of Appeals for the 

District for Columbia Circuit on behalf 

of Environmental Integrity Project, 

Friends of Hudson, Louisiana 

Environmental Action Network and 

Coalition for a Safe Environment 

(CFASE). On the same day, CFASE filed 

a petition for administrative 

reconsideration with EPA pursuant to 

section 307(d)(7)(B). 

CFASE appears to base its petition for 

reconsideration on a claim that it did 

not receive adequate notice of certain 

changes EPA made in the final rule to 

the SSM recordkeeping and reporting 

requirements. EPA made changes to the 

recordkeeping and reporting 

requirements in the final rule to address 

comments on the proposed rule 

submitted by EarthJustice and 

Environmental Integrity Project. In 

comments on the proposed rule, 

EarthJustice and Environmental 

Integrity Project asserted that the 

proposed rule’s elimination of the 

requirement that a source implement an 

SSM plan renders the SSM rule’s 

general duty to minimize emissions 

vague and unenforceable and violates 

the Clean Air Act (CAA) Title V 

requirement that permits contain 

enforceable limits and standards and 

conditions necessary to assure 

compliance. (Docket number EPA–HQ–

OAR–2004–0094, items 29 through 32.) 

The General Provisions to 40 CFR part 

63 require that ‘‘at all times, including 

periods of startup, shutdown, and 

malfunction, the owner or operator must 

operate and maintain any affected 

source, including associated air 

pollution control equipment and 

monitoring equipment, in a manner 

consistent with safety and good air 

pollution control practices for 

minimizing emissions. During a period 

of startup, shutdown, or malfunction, 

this general duty to minimize emissions 

requires that the owner or operator 

reduce emissions from the affected 

source to the greatest extent which is 

consistent with safety and good air 

pollution control practices.’’ 1 In the 

proposed rule preamble, we explained 

that the reporting and recordkeeping 

requirements would allow the 

permitting authority and the public to 

determine compliance with the general 

duty clause. 70 FR at 43394 (July 29, 

2005). However, in an effort to address 

the above-mentioned concerns raised by 

commenters, we reevaluated the 

recordkeeping and reporting 

requirements and made minor revisions 

to those requirements to clarify that the 

information required in SSM records 

and reports include a description of the 

‘‘actions taken’’ at the facility during 

SSM events that involve an exceedance 

of the applicable standard.2 The final 

rule preamble explained the revisions as 

follows: 

With these clarifications, any time there is 

an exceedance of an emission limit (or could 

have been in the case of malfunctions) and 

thus a possibility that the general duty 

requirement was violated, there will be a 

report filed that will describe what actions 

were taken to minimize emissions that will 

be available to the public. 

Any member of the public could use the 

information in these reports to evaluate 

whether adequate steps were taken to meet 

the general duty requirement. This 

information is likely to be of as much if not 

more use in determining compliance with the 

general duty requirement than a facility’s 

general SSM plan because the information 

will be specific to the particular SSM event 

that caused the exceedance. 

71 FR 20448 (April 20, 2006). 

In its petition, CFASE argues that 

EPA’s reliance on the revised 

recordkeeping and reporting 

requirements to assure compliance with 

the general duty to minimize emissions 

is insufficient. CFASE further argues 

that the SSM rule violates the CAA 

section 504(a) requirement that title V 

permits contain ‘‘conditions as are 

necessary to assure compliance’’ with 

the general duty to minimize emissions 

and that reliance on reporting alone 

does not ‘‘assure compliance.’’ CFASE 

also asserts that a vague generalized 

requirement such as the general duty to 

minimize emissions must be 

supplemented with permit conditions 

sufficient to explain how the 

requirement applies specifically to the 

permitted facility. 

III. Basis for Denial of Reconsideration 

EPA denies CFASE’s petition for 

reconsideration. Section 307(d)(7)(B) of 

the CAA requires EPA to convene a 

proceeding for reconsideration based on 

objections that were not raised during 

the public comment period only if ‘‘it 

was impracticable to raise such 

objection within such time or if the 

grounds for such objection arose after 

the period for public comment * * * 

and if such objection is of central 

relevance to the outcome of the rule 

***’’

Petitioner has failed to establish that 

the objections raised are based on 

grounds that ‘‘arose after the public 

comment period.’’ As noted above, the 

preamble to the proposed rule clearly 

articulates EPA’s reliance on 

recordkeeping and reporting to allow 

the permitting agency and the public to 

determine compliance with the general 

duty to minimize emissions. 

Specifically, the proposal provides: 

These periodic and immediate SSM reports 

provide the permitting authority with 

adequate information to determine if the 

facility has SSM problems above and beyond 

what might normally be expected. The types 

and frequency of SSM events will vary from 

source category to source category. Sources 

that report much higher number of SSM 

events than other sources within the same 

source category would be subject to higher 

scrutiny by the permitting authority, by EPA, 

and presumably by the public. Inspectors 

would examine the facility’s records and its 

SSM plan to determine its adequacy and 

whether it conformed to the general duty 

clause. If not, the facility could be cited for 

violating the general duty clause and 

required to revise its plan to minimize 

emissions to the satisfaction of the permitting 

authority. As such, the reports identify 

potential problems that can be followed up 

with appropriate action. 

70 FR at 43394. 

Nor were CFASE’s objections to the 

recordkeeping and reporting 

requirements ‘‘impracticable to raise’’

during the public comment period. 

Indeed, the arguments raised by CFASE 

in its petition for reconsideration are 

merely a variation of the arguments 

raised in its comments on the proposal. 

The revisions to regulatory language 

made in the final rule were made by 

EPA in direct response to the comments 

of EarthJustice and Environmental 

Integrity project concerning 

enforceability of the general duty to 

minimize emissions. 

As explained in the preamble to the 

proposed and final rules (70 FR at 43994 

and 71 FR at 20448–9), the 

recordkeeping and reporting 

requirements adequately assure 

compliance with the general duty to 

minimize emissions. As we explained in 

the preamble to the proposed rule, the 

general duty clause is the applicable 

requirement under MACT standards for 

emission reductions during periods of 

SSM and ‘‘* * * is designed to 

recognize that technology-based 

standards may not always be met, as 

technology fails occasionally beyond the 

control of the owner or operator * * *. 

If standards cannot be met during a 


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Federal Register / Vol. 72, No. 74 / Wednesday, April 18, 2007 / Rules and Regulations 19387 

period of SSM, then the owner or 

operator must take steps to minimize 

emissions to the extent practicable.’’ 70 

FR at 43993. 

The exception to technology-based 

emission standards during SSM events, 

which applies when a source cannot 

meet the technology-based standard 

using all practicable steps to minimize 

emissions that are consistent with safety 

and good air pollution control practices, 

is appropriate and may be necessary to 

preserve the reasonableness of the 

underlying MACT standards. Essex 

Chemical Corporation v. EPA, 486 F.2d. 

427, 432–33 (D.C. Cir 1973) (addressing 

exemption from New Source 

Performance Standards during SSM 

events); Portland Cement Association v. 

Ruckelshaus, 486 F.2d. 375, 398–99 

(D.C. Cir. 1973) (same); Marathon Oil v. 

EPA, 564 F.2d. 1253, 1272–73 (9th Cir. 

1977) (discussing need to provide upset 

defense for technology-based effluent 

limits to account for technology failure). 

As discussed above and in the 

preamble to the proposed and final 

rules, the general duty to minimize 

emissions is sufficiently specific (71 FR 

20448–49), and the SSM recordkeeping 

and reporting requirements are 

sufficient to assure compliance with the 

general duty clause. We note that in the 

Title V context, EPA’s regulations 

specifically provide that recordkeeping 

requirements can adequately assure 

compliance. In particular, 40 CFR 

70.6(a)(3)(i), which implements the 

statutory requirement of section 504(a) 

of the CAA, specifies that periodic 

testing and monitoring to determine 

compliance with an applicable 

requirement ‘‘may consist of 

recordkeeping designed to serve as 

monitoring.’’ Moreover, 40 CFR 

70.6(a)(3)(i)(b) (which requires title V 

permits to include monitoring and 

testing provisions when an underlying 

applicable requirement does not contain 

provisions) specifies that 

‘‘[r]ecordkeeping provisions may be 

sufficient to meet the requirements of 

this paragraph (a)(3)(i)(B).’’

Dated: April 12, 2007. 

Stephen L. Johnson, 

Administrator. 

[FR Doc. E7–7362 Filed 4–17–07; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 73 

[DA 07–1447; RM–10798] 

Radio Broadcasting Services; Annville, 

Manchester, Mt. Vernon, West Liberty, 

KY 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule; denial of petition for 

reconsideration. 

SUMMARY: This document denies a 

Petition for Reconsideration filed jointly 

by Vernon R. Baldwin, Inc., Morgan 

County Industries, Inc., and Vernon R. 

Baldwin (‘‘Petitioners’’) directed to a 

letter which returned their Joint Petition 

for Rule Making (‘‘Joint Petition’’). The 

Joint Petition was defective because the 

proposed site at Mt. Vernon failed to 

provide a 70 dBu signal over the entire 

community due to terrain obstruction. 

This document finds that it is not in the 

public interest to allow Petitioners on 

reconsideration to reinstate and amend 

their Joint Petition with a new site 

because a Petition for Rule Making must 

be technically correct at the time of 

filing. With this action, the proceeding 

is terminated. 

FOR FURTHER INFORMATION CONTACT: 

Helen McLean, Media Bureau (202) 

418–2738. 

SUPPLEMENTARY INFORMATION: This is a 

synopsis of the Commission’s 

Memorandum Opinion and Order, 

adopted March 28, 2007, and released 

March 30, 2007. The full text of this 

Commission decision is available for 

inspection and copying during regular 

business hours at the FCC’s Reference 

Information Center, Portals II, 445 

Twelfth Street, SW., Room CY–A257, 

and Washington, DC 20554. The 

complete text of this decision may also 

be purchased from the Commission’s 

duplicating contractor, Best Copy and 

Printing, Inc., 445 12th Street, SW., 

Room CY–B402, Washington, DC 20554, 

telephone 1–800–378–3160 or 

www.BCPIWEB.com. This document is 

not subject to the Congressional Review 

Act. (The Commission, is, therefore, not 

required to submit a copy of this 

Memorandum Opinion and Order to the 

Government Accountability Office, 

pursuant to the Congressional Review 

Act, see 5 U.S.C. 801(a)(1)(A) because 

the petition for reconsideration was 

denied. 

Federal Communications Commission. 

John A. Karousos, 

Assistant Chief, Audio Division Media 

Bureau. 

[FR Doc. E7–7257 Filed 4–17–07; 8:45 am] 

BILLING CODE 6712–01–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 90 

[WT Docket No. 99–87; RM 9332; FCC 07–

39] 

Implementation of Sections 309(j) and 

337 of the Communications Act of 1934 

as Amended; Promotion of Spectrum 

Efficient Technologies on Certain Part 

90 Frequencies 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule. 

SUMMARY: In this document, the Federal 

Communications Commission 

(Commission or FCC) declines, for now, 

to establish a schedule for Private Land 

Mobile Radio (PLMR) systems in the 

150–174 MHz and 421–512 MHz bands 

to transition to 6.25 kHz technology; 

and revises the implementation date of 

the 6.25 kHz requirement for equipment 

certification from January 1, 2005 to 

January 1, 2011. 

DATES: Effective May 18, 2007. 

FOR FURTHER INFORMATION CONTACT: 

Melvin Spann, Melvin.Spann@FCC.gov, 

Mobility Division, Wireless 

Telecommunications Bureau at (202) 

418–1333. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Federal 

Communications Commission’s Third 

Report and Order in WT Docket No. 99–

87 (Third Report and Order), FCC 07–

39, adopted on March 22, 2007, and 

released on March 26, 2007. The full 

text of this document is available for 

inspection and copying during normal 

business hours in the FCC Reference 

Information Center, 445 12th Street, 

SW., Washington, DC 20554. The 

complete text may be purchased from 

the Commission’s copy contractor, Best 

Copy and Printing, Inc., 445 12th Street, 

SW., Room CY–B402, Washington, DC 

20554. The full text may also be 

downloaded at: http://www.fcc.gov. 

Alternative formats are available to 

persons with disabilities by sending an 

e-mail to fcc504@fcc.gov or by calling 

the Consumer & Governmental Affairs 

Bureau at 202–418–0530 (voice), 202–

418–0432 (tty). 

1. The Third Report and Order 

addresses issues raised in the Second 


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