**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.--- Bakery located in Henrico County, Virginia**

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

**ACTION**: Final rule.

**SUMMARY**: EPA is approving a State Implementation Plan (SIP) revision
submitted by the Commonwealth of Virginia. 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 approving the revision to the Virginia SIP in
accordance with the requirements of the Clean Air Act (CAA).

**EFFECTIVE DATE:** This final rule is effective on \[[insert date 30
days from date of publication]{.underline}\].

**ADDRESSES**: EPA has established a docket for this action under Docket
ID Number **EPA-R03-OAR-2007-1139**. All documents in the docket are
listed in the [www.regulations.gov]{.underline} website. 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

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]{.underline} 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**: Irene Shandruk, (215) 814‑2166, or
by e-mail at <shandruk.irene@epa.gov>.

**SUPPLEMENTARY INFORMATION**:

**I. Background**

On January 31, 2008 (73 FR 5781), EPA published a notice of proposed
rulemaking (NPR) for the Commonwealth of Virginia. The NPR proposed
approval of Virginia's SIP revision for the purpose of meeting RACT
requirements in order to implement the maintenance plan for the Richmond
8-hour ozone maintenance area. The formal SIP revision was submitted by
the Virginia Department of Environmental Quality on October 29, 2007.
Other specific requirements of RACT and the rationale for EPA's proposed
action are explained in the NPR and will not be restated here. No
comments were received on the NPR.

**II. Summary of SIP Revision**

The Virginia Department of Environmental Quality is requesting that a
revision to the Commonwealth's SIP 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 located in Henrico County, Virginia be
approved. The purpose of this revision is for meeting the requirements
for RACT in order to implement the maintenance plan for the Richmond
8-hour ozone maintenance area.

**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 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."

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.

Other specific requirements of the SIP revision and the rationale for
EPA\'s proposed action are explained in the NPR and will not be restated
here. No public comments were received on the NPR.

**IV. Final Action**

Virginia has met the requirements 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 located in Henrico County, Virginia, and EPA is therefore
approving Virginia's revision for the purpose of this revision is for
meeting the requirements for RACT in order to implement the maintenance
plan for the Richmond 8-hour ozone maintenance area.

**IV. 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]{.underline}*.*);

-   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]{.underline}.);

-   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);

-   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 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]{.underline}., 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. EPA will submit a report containing this
action and other required information to the U.S. Senate, the U.S. House
of Representatives, and the Comptroller General of the United States
prior to publication of the rule in the [Federal]{.underline}
[Register]{.underline}. A major rule cannot take effect until 60 days
after it is published in the [Federal]{.underline}
[Register]{.underline}. This action is not a "major rule" as defined by
5 U.S.C. 804(2).

The Congressional Review Act, 5 U.S.C. 801 [et seq]{.underline}., 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 .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 \[[Insert date 60 days from date
of publication of this document in the Federal Register]{.underline}\].
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 approving Virginia's SIP revision pertaining 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 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, Ozone, Reporting and recordkeeping requirements, Volatile
organic compounds.

/s/

[\_\_April 3, 2008\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_]{.underline}
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Dated: William T. Wisniewski, Acting 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]{.underline}.

Subpart VV B Virginia

2\. In \' 52.2420, the table in paragraph (d) is amended by adding the
entry for Kraft Food Global, Inc. -- Richmond Bakery at the end of the
table to read as follows:

[\' 52.2420]{.underline} [Identification of plan]{.underline}.

> \* \* \* \* \*

\(d\) \* \* \*

EPA-APPROVED SOURCE-SPECIFIC REQUIREMENTS

  ----------------------------------------------------------------------------------------------------
  **Source      **Permit/order or                  **State     **EPA approval date**   **40 CFR part
  Name**        registration number**              effective                           52 citation**
                                                   date**                              
  ------------- ------------------------ --------- ----------- ----------------------- ---------------
  \* \* \* \*                                                                          
  \* \* \*                                                                             

  Kraft Foods   Registration No. 50703   9/19/07               \[Insert [Federal       52.2420(d)(8)
  Global, Inc.                                                 Register]{.underline}   
  -- Richmond                                                  publication date\]      
  Bakery                                                       \[Insert page number    
                                                               where the document      
                                                               begins\]                
  ----------------------------------------------------------------------------------------------------

\* \* \* \* \*