[Federal Register Volume 73, Number 102 (Tuesday, May 27, 2008)]
[Proposed Rules]
[Pages 30340-30342]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-11733]
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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: [email protected].
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 [email protected].
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]
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