	ENVIRONMENTAL PROTECTION AGENCY

	40 CFR Part 52

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

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.

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 [insert date 30
days from date of publication].  

ADDRESSES:  Submit your comments, identified by Docket ID Number
EPA-R03-OAR-2008-0333 by one of the following methods:

 www.regulations.gov.  Follow the on-line instructions for submitting
comments.

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 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 www.regulations.gov or
e-mail.  The www.regulations.gov website 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 
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
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 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   HYPERLINK "mailto:wentworth.ellen@epa.gov" 
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 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 ( 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 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 (Public Law 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.

_______May 14, 2008_________           ________________/s/____________

Dated:                                                      William T.
Wisniewski, Acting

                                                                
Regional Administrator,

                                                                 Region
III. 

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