	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:  Final rule.

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).

 

EFFECTIVE DATE:  This final rule is effective on [insert date 30 days
from date of publication].

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 website.  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   HYPERLINK "mailto:wentworth.ellen@epa.gov" 
wentworth.ellen@epa.gov .

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—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 (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
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 [Insert date 60 days from date of
publication of this document in the Federal Register].  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.

								/s/	

                        ___________________________    

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

                                  					Region III.

40 CFR Part 52 is amended as follows: 

PART 52 - [AMENDED] 

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

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

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