53132 Federal Register / Vol. 73, No. 179 / Monday, September 15, 2008 / Rules and Regulations 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Particulate matter, Reporting 

and recordkeeping requirements. 

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 part 52 

continues to read as follows: 

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

Subpart V—Maryland 

■ 2. In (52.1070, the table in paragraph 

(c) is amended by revising the entries 

for COMAR 10.18.08.01 and 10.18.08.05 

to read as follows: 

§ 52.1070 Identification of plan. 

* * * * * 

(c) * * * 

EPA-APPROVED REGULATIONS IN THE MARYLAND SIP 

Code of Maryland 

administrative regulations 

(COMAR) citation 

Title/subject State effective 

date EPA approval date Additional explanation/ citation at 40 CFR § 52.1100 

* * * * * * * 

COMAR 10.18.08/26.11.08 Control of Incinerators 

10.18.08/26.11.08.01 .............. Definitions .............................. 9/12/05 9/15/08 [Insert page number 

where the document begins].

Definition of ‘‘crematory’’ is 

added. 

* * * * * * * 

10.18.08/26.11.08.05 .............. Particulate Matter ................... 9/12/05 9/15/08 [Insert page number 

where the document begins].

Sections .05A(3) and 

.05B(2)(a) are revised. 

* * * * * * * 

* * * * * 

[FR Doc. E8–21310 Filed 9–12–08; 8:45 am] 

BILLING CODE 6560–50–P 

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. 

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— 


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Federal Register / Vol. 73, No. 179 / Monday, September 15, 2008 / Rules and Regulations 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 openfront 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 


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53134 Federal Register / Vol. 73, No. 179 / Monday, September 15, 2008 / Rules and Regulations 

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 nonagency 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. 

■ 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 

§ 52.2420 [Amended] 

■ 2. In § 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] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2008–0593–200818a; FRL– 

8714–7] 

Approval and Promulgation of 

Implementation Plans Alabama: 

Volatile Organic Compounds and Open 

Burning 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: EPA is taking direct final 

action to approve revisions to the 

Alabama State Implementation Plan 

(SIP), submitted by the Alabama 

Department of Environmental 

Management (ADEM) on January 8, 

2008. The revisions include 

modifications to Alabama’s Volatile 

Organic Compounds (VOC) and Control 

of Open Burning and Incineration 

regulations, found at Alabama 

Administrative Code (AAC) Chapters 

335–3–1, and 335–3–3, respectively. 

This action is being taken pursuant to 

section 110 of the Clean Air Act (CAA). 

This SIP revision also contains a letter 

addressing the requirements of section 

110(a)(2)(D)(i), which EPA will consider 

separately. 

DATES: This direct final rule is effective 

November 14, 2008 without further 

notice, unless EPA receives adverse 

comment by October 15, 2008. If EPA 

receives such comments, it will publish 

a timely withdrawal of the direct final 

rule in the Federal Register and inform 

the public that the rule will not take 

effect. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. ‘‘EPA–R04– 

OAR–2008–0593,’’ by one of the 

following methods: 

1. www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

2. E-mail: harder.stacy@epa.gov. 

3. Fax: 404–562–9019. 

4. Mail: ‘‘EPA–R04–OAR–2008– 

0593,’’ Regulatory Development Section, 

Air Planning Branch, Air, Pesticides and 

Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street, SW., 

Atlanta, Georgia 30303–8960. 

5. Hand Delivery or Courier: Ms. Stacy 

Harder, Regulatory Development 

Section, Air Planning Branch, Air, 

Pesticides and Toxics Management 

Division, U.S. Environmental Protection 

Agency, Region 4, 61 Forsyth Street, 

SW., Atlanta, Georgia 30303–8960. Such 

deliveries are only accepted during the 

Regional Office’s normal hours of 

operation. The Regional Office’s official 

hours of business are Monday through 

Friday, 8:30 to 4:30, excluding federal 

holidays. 

Instructions: Direct your comments to 

Docket ID No. ‘‘EPA–R04–OAR–2008– 

0593,’’ 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 through 

www.regulations.gov or e-mail, 

information that you consider to be CBI 

or otherwise protected. The 

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 

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 


jlentini on PROD1PC65 with RULES