**ENVIRONMENTAL PROTECTION AGENCY**

**40 CFR Part 52**

**\[EPA-R03-OAR-2007-1139; FRL- \]**

**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,
Virginia**

**AGENCY**: Environmental Protection Agency (EPA).

**ACTION:** Proposed rule.

**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 \[[insert date
30 days from date of publication]{.underline}\].

**ADDRESSES:** Submit your comments, identified by Docket ID Number
**EPA-R03-OAR-2007-1139,** by one of the following methods:

A.  [www.regulations.gov](http://www.regulations.gov/). Follow the
    on-line instructions for submitting comments.

B. E-mail: <fernandez.cristina@epa.gov>.

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-2007-1139**. 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]{.underline}, 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]{.underline} or e-mail. The
[www.regulations.gov]{.underline} website is an Aanonymous 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]{.underline}, 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]{.underline} 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]{.underline} 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 <shandruk.irene@epa.gov>.

**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 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) Aprivilege" 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 Aenforce 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.", 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 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]{.underline}.). 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
(Public Law 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
AAttorney 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]{.underline}.).

**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]{.underline}.

[\_\_\_January 23, 2008\_\_\_\_\_\_\_\_\_\_\_\_]{.underline}
[\_\_\_\_\_\_\_\_\_\_\_/s/\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_]{.underline}

Dated: William T. Wisniewski, Acting

Regional Administrator,

Region III.