
[Federal Register: May 27, 2008 (Volume 73, Number 102)]
[Proposed Rules]               
[Page 30340-30342]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27my08-19]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2008-0333; FRL-8571-1]

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP) 
revision submitted by the Commonwealth of Virginia. This revision 
pertains to the removal of a nitrogen oxide (NOX) RACT 
permit for sources located at the Norfolk Southern Corporation in 
Roanoke, Virginia, which have permanently shut down. This action is 
being taken under the Clean Air Act (CAA).

DATES: Written comments must be received on or before June 26, 2008.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2008-0333 by one of the following methods:
    A. http://www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. E-mail: fernandez.cristina@epa.gov.
    C. Mail: EPA-R03-OAR-2008-0333, Cristina Fernandez, Chief, Air 
Quality Planning Branch, Mailcode 3AP21, U.S. Environmental Protection 
Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
    D. Hand Delivery: At the previously-listed EPA Region III address. 
Such deliveries are only accepted during the Docket(s normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2008-0333. EPA's policy is that all comments received will be included 
in the public docket without change, and may be made available online 
at http://www.regulations.gov, 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 http://
www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, 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 http://www.regulations.gov, your e-mail 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.
    Docket: All documents in the electronic docket are listed in the 
http://www.regulations.gov index. 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 http://
www.regulations.gov or in hard copy 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 wentworth.ellen@epa.gov.

SUPPLEMENTARY INFORMATION: On February 11, 2008, the Virginia 
Department of Environmental Quality (VADEQ) submitted a revision to its 
State Implementation Plan (SIP) pertaining to the removal of a 
NOX RACT permit for sources located at the Norfolk Southern 
Railway Company, located in Roanoke, Virginia, that had permanently 
shut down.

I. Background

    Prior to the final designations of the 8-hour ozone nonattainment 
area, EPA developed a program to allow potential nonattainment areas to 
voluntarily adopt local emission control programs to avoid air quality 
violations and mandated nonattainment area controls. Areas with air 
quality meeting the

[[Page 30341]]

 1-hour ozone standard were eligible to participate. In order to 
participate, state and local governments and EPA had to develop and 
sign a memorandum of agreement that described the local control 
measures the state or local community intended to adopt and implement 
to reduce emissions of ozone-forming air pollutants. This agreement was 
known as an Early Action Compact (EAC). Areas that participated in the 
EAC program had the flexibility to institute their own approach in 
maintaining clean air and protecting public health.
    Several localities in the Winchester and Roanoke, Virginia areas 
elected to participate in the EAC program. Virginia's strategy for 
enabling these localities to participate in the EAC program was to have 
them be subject to volatile organic compound (VOC) and NOX 
control measures from which they had previously been exempt. In order 
to enable the affected localities to implement VOC and NOX 
controls, the list of VOC and NOX emission control areas in 
9 VAC 5-20-206, Volatile Organic Compound and Nitrogen Oxide Emission 
Control Areas, was expanded to include the counties of Botetourt, 
Frederick, and Roanoke, and the cities of Roanoke, Salem, and 
Winchester. This area became known as the Western Virginia Emissions 
Control Area (70 FR 21625, April 27, 2005). As a result, the VOC and 
NOX control regulations of Chapter 40 became applicable in 
the Roanoke area.
    The Norfolk Southern Railway Company rail car and locomotive 
maintenance facility located in Roanoke, Virginia, was identified as 
one of the sources located in the Western Virginia Emissions Control 
Area subject to RACT. Accordingly, the company prepared a RACT analysis 
to support a RACT determination for the control of NOX 
emissions from the facility. After undergoing public comment, a state 
operating permit was issued to the source to ensure compliance with the 
RACT requirements. The permit, No. 20468, was submitted to EPA as a 
revision to the Commonwealth of Virginia SIP on February 7, 2005. EPA 
published its approval of the SIP revision on April 27, 2005 (70 FR 
21621).

II. Summary of SIP Revision

    On February 11, 2008, the Commonwealth of Virginia submitted a 
revision to its SIP which consisted of mutual agreements between the 
VDEQ and the Norfolk Southern Corporation for permanent shut downs of 
certain NOX RACT-subject sources located at the Norfolk 
Southern Corporation complex in Roanoke, Virginia. Since the time of 
EPA's approval of the NOX RACT requirements for the Norfolk 
Southern Railway Company (70 FR 21621, April 27, 2005), many sources at 
the facility, 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 is requesting that 
EPA remove RACT permit No. 20468 from the Virginia SIP, since it is no 
longer applicable. Once EPA has approved this request and VADEQ has 
notified Norfolk Southern Corporation of its approval, the permit 
repeal will become effective 30 days later.
    The units subject to the NOX RACT requirements of permit 
No. 20468, which have permanently shut down, include the following: 
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.
    The February 11, 2008 SIP revision consists of signed mutual 
determination agreements of permanent shut downs between the VADEQ and 
Norfolk Southern Corporation for the previously identified RACT-subject 
sources in accordance with the requirements of 9 VAC 5-20-220, and 
state operating permit regulations 9 VAC 5-80-1210, subsection L. Unit 
ID 8-01-B&W Stirling coal-fired spreader stoker boiler; Unit 
ID 8-02-B&W Stirling coal-fired spreader stoker boiler; and 
Unit ID 8-03-B&W Stirling coal-fired spreader stoker boiler 
were permanently shut down as per the shut down agreement between VADEQ 
and Northern Southern Corporation, dated August 20, 2007. 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 15-13/14--one 13-ton capacity electric arc furnace, were 
permanently shut down as per the shut down agreement between VADEQ and 
Northern Southern Corporation, dated June 22, 2005.

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 Sec.  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

[[Page 30342]]

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 CAA is likewise unaffected by 
this, or any, state audit privilege or immunity law.

IV. Proposed Action

    EPA is proposing to approve the Commonwealth of Virginia's SIP 
revision request, submitted on February 11, 2008, to remove 
NOX RACT permit No. 20468 from the Virginia SIP. The SIP 
revision consists of mutual agreements between VADEQ and the Norfolk 
Southern Corporation for permanent shut down of the units described 
above. EPA is proposing approval of the removal of NOX RACT 
permit No. 20468 from the Virginia SIP 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. Once EPA has approved this request and VADEQ 
has notified Norfolk Southern Corporation of EPA's approval, the 
removal of permit No. 20468 from the Virginia SIP will become effective 
30 days later. EPA is soliciting public comments on the issues 
discussed in this document. These comments will be considered before 
taking final action.

V. Statutory and Executive Order Reviews

    Under the CAA, 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 CAA. Accordingly, this 
action merely proposes to approve state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this proposed 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 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 CAA; 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 proposed rule, pertaining to the removal of a 
NOX RACT permit from the Virginia SIP for sources at the 
Norfolk Southern Corporation that have permanently shut down, 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.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Nitrogen dioxide, 
Ozone, Reporting and recordkeeping requirements, Volatile organic 
compounds.

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

    Dated: May 14, 2008.
William T. Wisniewski,
Acting Regional Administrator, Region III.
[FR Doc. E8-11733 Filed 5-23-08; 8:45 am]

BILLING CODE 6560-50-P
