[Federal Register Volume 73, Number 179 (Monday, September 15, 2008)]
[Rules and Regulations]
[Pages 53132-53134]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-21309]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2008-0333; FRL-8714-4]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia, Reasonably Available Control Technology (RACT) for Norfolk 
Southern Corporation

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision 
submitted by the Commonwealth of Virginia removing a nitrogen oxide 
(NOX) reasonably available control technology (RACT) permit 
from the Virginia SIP for sources located at the Norfolk Southern 
Railway Company--East End Shops' facility located in Roanoke, Virginia, 
which have permanently shut down. This action is being taken under the 
Clean Air Act (CAA).

DATES: Effective Date: This final rule is effective on October 15, 
2008.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2008-0333. All documents in the docket are listed in 
the www.regulations.gov Web site. Although listed in the electronic 
docket, some information is not publicly available, i.e., confidential 
business information (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 through www.regulations.gov or in hard 
copy for public inspection during normal business hours at the Air 
Protection Division, U.S. Environmental Protection Agency, Region III, 
1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State 
submittal are available at the Virginia Department of Environmental 
Quality, 629 East Main Street, Richmond, Virginia 23219.

FOR FURTHER INFORMATION CONTACT: Ellen Wentworth, (215) 814-2034, or by 
e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On May 27, 2008 (73 FR 30340), EPA published a notice of proposed 
rulemaking (NPR) for the Commonwealth of Virginia. The NPR proposed 
approval of the removal of a NOX RACT permit from the 
Virginia SIP for sources located at the Norfolk Southern Railway 
Company--East End Shops' facility, in Roanoke, Virginia which have 
permanently shut down. The formal SIP revision was submitted by the 
Virginia Department of Environmental Quality (VADEQ) on February 11, 
2008.

II. Summary of SIP Revision

    On February 11, 2008, the Commonwealth of Virginia submitted a 
revision to its SIP which requested the removal of NOX RACT 
permit No. 20468, issued to the Norfolk Southern Railway Company--East 
End Shops' facility in Roanoke, Virginia, from the Virginia SIP. Since 
the time of EPA's approval of the NOX RACT requirements for 
NOX RACT-subject sources at this facility (70 FR 21621, 
April 27, 2005), many sources, including those that had previously been 
subject to the NOX RACT requirements of 9 VAC 5-40 via 
permit No. 20468, were permanently shut down. As a result, the VADEQ 
requested that EPA remove NOX RACT permit No. 20468 from the 
Virginia SIP since it was no longer applicable. The SIP revision 
consisted of mutual shut down agreements between the VADEQ and the 
Norfolk Southern Railway Company--

[[Page 53133]]

East End Shops' facility located in Roanoke, Virginia. The volatile 
organic compound (VOC) and NOX RACT control regulations of 
Chapter 40 had originally become applicable in the Roanoke area because 
of its participation in the EPA Early Action Compact (EAC) program for 
the Western Virginia Emissions Control Area.
    The sources previously subject to the NOX RACT 
requirements of permit No. 20468 which have permanently shut down 
include the following units: Unit ID 8-01, B & W Stirling 
coal-fired spreader stoker boiler; Unit ID 8-02, B & W 
Stirling coal-fired spreader stoker boiler; Unit ID 8-03, B & 
W Stirling coal-fired spreader stoker boiler; Unit ID 8-04, 
Zurn Energy coal-fired spreader stoker boiler; Unit ID 43-03, 
15 open-front oil-fired metal heating furnaces; and Unit ID 
51-13/14, one 13-ton capacity electric arc furnace.
    Other specific requirements of the removal of the NOX 
RACT permit for Norfolk Southern Railway Company--East End Shops' 
facility, and the rationale for EPA's action are explained in the NPR 
and will not be restated here. No public comments were received on the 
NPR.

III. General Information Pertaining to SIP Submittals From the 
Commonwealth of Virgina

    In 1995, Virginia adopted legislation that provides, subject to 
certain conditions, for an environmental assessment (audit) 
``privilege'' for voluntary compliance evaluations performed by a 
regulated entity. The legislation further addresses the relative burden 
of proof for parties either asserting the privilege or seeking 
disclosure of documents for which the privilege is claimed. Virginia's 
legislation also provides, subject to certain conditions, for a penalty 
waiver for violations of environmental laws when a regulated entity 
discovers such violations pursuant to a voluntary compliance evaluation 
and voluntarily discloses such violations to the Commonwealth and takes 
prompt and appropriate measures to remedy the violations. Virginia's 
Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-
1198, provides a privilege that protects from disclosure documents and 
information about the content of those documents that are the product 
of a voluntary environmental assessment. The Privilege Law does not 
extend to documents or information (1) that are generated or developed 
before the commencement of a voluntary environmental assessment; (2) 
that are prepared independently of the assessment process; (3) that 
demonstrate a clear, imminent and substantial danger to the public 
health or environment; or (4) that are required by law.
    On January 12, 1998, the Commonwealth of Virginia Office of the 
Attorney General provided a legal opinion that states that the 
Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege 
to documents and information ``required by law,'' including documents 
and information ``required by Federal law to maintain program 
delegation, authorization or approval,'' since Virginia must (enforce 
Federally authorized environmental programs in a manner that is no less 
stringent than their Federal counterparts. * * *'' The opinion 
concludes that ``[r]egarding ( 10.1-1198, therefore, documents or other 
information needed for civil or criminal enforcement under one of these 
programs could not be privileged because such documents and information 
are essential to pursuing enforcement in a manner required by Federal 
law to maintain program delegation, authorization or approval.''
    Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that 
``[t]o the extent consistent with requirements imposed by Federal 
law,'' any person making a voluntary disclosure of information to a 
state agency regarding a violation of an environmental statute, 
regulation, permit, or administrative order is granted immunity from 
administrative or civil penalty. The Attorney General's January 12, 
1998 opinion states that the quoted language renders this statute 
inapplicable to enforcement of any Federally authorized programs, since 
``no immunity could be afforded from administrative, civil, or criminal 
penalties because granting such immunity would not be consistent with 
Federal law, which is one of the criteria for immunity.'' Therefore, 
EPA has determined that Virginia's Privilege and Immunity statutes will 
not preclude the Commonwealth from enforcing its program consistent 
with the Federal requirements. In any event, because EPA has also 
determined that a state audit privilege and immunity law can affect 
only state enforcement and cannot have any impact on Federal 
enforcement authorities, EPA may at any time invoke its authority under 
the CAA, including, for example, sections 113, 167, 205, 211 or 213, to 
enforce the requirements or prohibitions of the state plan, 
independently of any state enforcement effort. In addition, citizen 
enforcement under section 304 of the Clean Air Act is likewise 
unaffected by this, or any, state audit privilege or immunity law.

IV. Final Action

    EPA is approving the Commonwealth of Virginia's SIP revision, 
submitted on February 11, 2008, requesting the removal of 
NOX RACT permit No. 20468, issued on December 22, 2004, to 
the Norfolk Southern Railway Company--East End Shops' facility, in 
Roanoke, Virginia from the Virginia SIP. EPA is taking this final 
action because the sources that were previously subject to the 
NOX RACT requirements of this permit, have permanently shut 
down. EPA is approving this action with the understanding that no 
future operation of this equipment shall occur until the owner has 
obtained the applicable permits pursuant to 9 VAC 5 Chapter 80 of 
Virginia's regulations. Upon EPA's approval of the Commonwealth's 
request, the VADEQ will notify the Norfolk Southern Corporation of 
EPA's approval and the permit repeal will become effective 30 days 
later.

V. Statutory and Executive Order Reviews

A. General Requirements

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or

[[Page 53134]]

safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 
1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

B. Submission to Congress and the Comptroller General

    The Congressional Review Act, 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 804, however, exempts from section 801 the 
following types of rules: rules of particular applicability; rules 
relating to agency management or personnel; and rules of agency 
organization, procedure, or practice that do not substantially affect 
the rights or obligations of non-agency parties. 5 U.S.C. 804(3). 
Because this is a rule of particular applicability, EPA is not required 
to submit a rule report regarding this action under section 801.

C. Petitions for Judicial Review

    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 November 14, 2008. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action 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, pertaining to the removal of the 
Norfolk Southern Railway Company--East End Shops' NOX RACT 
permit, 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, Incorporation by 
reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping 
requirements.

    Dated: August 29, 2008.
Donald S. Welsh,
Regional Administrator, Region III.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for 40 CFR part 52 continues to read as 
follows:

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

Subpart VV--Virginia


Sec.  52.2420  [Amended]

0
2. In Sec.  52.2420, the table in paragraph (d) is amended by removing 
the entry for Norfolk Southern Railway Company--East End Shops.

[FR Doc. E8-21309 Filed 9-12-08; 8:45 am]
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