[Federal Register Volume 73, Number 21 (Thursday, January 31, 2008)]
[Proposed Rules]
[Pages 5781-5783]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-1777]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2007-1139; FRL-8523-4]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Control of Volatile Organic Compound (VOCs) Emissions From 
the Kraft Foods Global, Inc.--Richmond Bakery located in Henrico 
County, VA

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 on October 29, 2007. 
This revision pertains to a federally enforceable state operating 
permit containing terms and conditions for the control of emissions of 
volatile organic compounds (VOCs) from the Kraft Foods Global, Inc.--
Richmond Bakery located in Henrico County, Virginia. The submittal is 
for the purpose of meeting the requirements for reasonably available 
control technology (RACT) in order to implement the maintenance plan 
for the Richmond 8-hour ozone maintenance area. EPA is proposing to 
approve the revision to the Virginia SIP in accordance with the 
requirements of the Clean Air Act (CAA).

DATES: Written comments must be received on or before March 3, 2008.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2007-1139, by one of the following methods:
    A. www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. E-mail: [email protected].
    C. Mail: EPA-R03-OAR-2007-1139, 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-
2007-10139. 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 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 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: Irene Shandruk, (215) 814-2166, or by 
e-mail at [email protected].

SUPPLEMENTARY INFORMATION: On October 29, 2007, the Commonwealth of 
Virginia submitted a revision to its State Implementation Plan (SIP) 
for the control of emissions of VOCs from the Kraft Foods Global, 
Inc.--Richmond Bakery located in Henrico County, Virginia. The 
submittal is for the purpose of meeting the requirements for Reasonably 
Available Control Technology (RACT) in order to implement the 
maintenance plan for the Richmond 8-hour ozone maintenance area.

I. Background

    RACT is the lowest emission limit that a particular source is 
capable of meeting by the application of control technology that is 
reasonably available with the consideration of technological and 
economic feasibility. When the Richmond area was originally designated 
as an ozone nonattainment area under the 1-hour standard, it was 
classified as moderate and thereby had to meet the non-CTG RACT 
requirements of section 182 of the CAA. As part of the 1-hour ozone 
attainment plan, one of the sources located in the area identified as 
being subject to non-CTG RACT was Nabisco Brands (now Kraft Foods). 
Cookies, crackers, and pretzels are produced at this plant. The sources 
of VOC emissions at this plant

[[Page 5782]]

are proof-room, ovens for baking the dough, and oil treatment 
facilities.
    The Kraft Foods Global, Inc. in Henrico County, Virginia underwent 
RACT analysis, and a federally-enforceable state operating permit was 
issued to the facility, which became effective on April 24, 1991. The 
permit was then submitted to EPA as a SIP revision, and approved into 
the Commonwealth's SIP on March 6, 1992 (57 FR 8080).
    On September 22, 2004, under the new 8-hour ozone standard, the 
Richmond area was classified as a marginal nonattainment area. On 
September 20, 2006, the Virginia Department of Environmental Quality 
(VADEQ) formally submitted a request to redesignate the Richmond area 
from nonattainment to attainment for the 8-hour ozone NAAQS. On 
September 25, 2006, the VADEQ submitted a maintenance plan for the 
Richmond area as a SIP revision to ensure continued attainment. The 
redesignation request and maintenance plan were approved on June 1, 
2007 (72 FR 30485). Section 107(d)(3)(E) of the CAA stipulates that for 
an area to be redesignated, EPA must approve a maintenance plan that 
meets the requirements of section 175A. All applicable nonattainment 
area requirements remain in place. The plan includes a demonstration 
that emissions will remain within the 2005 levels for a 10-year period 
by keeping in place key elements of the current federal and state 
regulatory programs, including case-by-case RACT requirements for the 
area. Because the Richmond area in which this facility is located has 
continuously been classified as either a nonattainment or a maintenance 
area, the RACT requirements remain in effect.

II. Summary of SIP Revision

    In 2006, Kraft made modifications to its process that necessitated 
the following revisions to its RACT permit: (1) Kraft will demonstrate 
compliance with RACT for oven 1 by testing the catalyst 
annually to demonstrate that it is functioning properly; and (2) 
Compliance with the exhaust gas flow through the catalytic oxidizer 
will be achieved by installing and operating the fan model with a rated 
capacity no less than 3,500 scfm.

III. General Information Pertaining to SIP Submittals From the 
Commonwealth of Virginia

    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 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's review of this material indicates that Virginia has met the 
requirements for submitting a SIP revision concerning a federally 
enforceable state operating permit containing terms and conditions for 
the control of emissions of VOCs from the Kraft bakery in Henrico 
County, Virginia. This revision request is for the purpose of meeting 
the requirements for RACT in order to implement the maintenance plan 
for the Richmond 8-hour ozone maintenance area. EPA is proposing to 
approve Virginia's SIP revision concerning this state operating permit, 
which was submitted on October 29, 2007. 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 Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed action is not a ``significant regulatory action'' and 
therefore is not subject to review by the Office of Management and 
Budget. For this reason, this action is also not subject to Executive 
Order 13211, ``Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)). 
This action merely proposes to approve state law as meeting Federal 
requirements and imposes no additional

[[Page 5783]]

requirements beyond those imposed by state law. Accordingly, the 
Administrator certifies that this proposed rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601, et seq.). Because 
this rule proposes to approve pre-existing requirements under state law 
and does not impose any additional enforceable duty beyond that 
required by state law, it 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). This proposed 
rule also does not have a substantial direct effect on one or more 
Indian tribes, on the relationship between the Federal Government and 
Indian tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian tribes, as specified by 
Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132 (64 FR 43255, August 10, 1999), 
because it merely proposes to approve a state rule implementing a 
Federal requirement, and does not alter the relationship or the 
distribution of power and responsibilities established in the CAA. This 
proposed rule also is not subject to Executive Order 13045 (62 FR 
19885, April 23, 1997), because it approves a state rule implementing a 
Federal standard.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the CAA. In this 
context, in the absence of a prior existing requirement for the State 
to use voluntary consensus standards (VCS), EPA has no authority to 
disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the CAA. Thus, the requirements of section 
12(d) of the National Technology Transfer and Advancement Act of 1995 
(15 U.S.C. 272 note) do not apply. As required by section 3 of 
Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this 
proposed rule, EPA has taken the necessary steps to eliminate drafting 
errors and ambiguity, minimize potential litigation, and provide a 
clear legal standard for affected conduct. EPA has complied with 
Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the 
takings implications of the rule in accordance with the ``Attorney 
General's Supplemental Guidelines for the Evaluation of Risk and 
Avoidance of Unanticipated Takings'' issued under the executive order.
    This action proposing approval of Virginia's SIP revision 
concerning a federally enforceable State operating permit containing 
terms and conditions for the control of emissions of VOCs from the 
Kraft Foods Global, Inc.--Richmond Bakery does not impose an 
information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501, et seq.).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Ozone, Reporting 
and recordkeeping requirements, Volatile organic compounds.

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

    Dated: January 23, 2008.
William T. Wisniewski,
Acting Regional Administrator, Region III.
[FR Doc. E8-1777 Filed 1-30-08; 8:45 am]
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