[Federal Register: September 15, 2008 (Volume 73, Number 179)]
[Rules and Regulations]
[Page 53132-53134]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15se08-11]
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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 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--
[[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.
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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]
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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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