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ENVIRONMENTAL PROTECTION AGENCY

Environmental Protection Agency

CFR Citation: 40 CFR Part 52

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

NOTICE: PROPOSED RULES

ACTION: Approval and Promulgation of Air Quality Implementation Plans:

DOCUMENT ACTION: Proposed rule.

SUBJECT CATEGORY: 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

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

DOCUMENT 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 8hour 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).

SUMMARY: Control of Volatile Organic Compound Emissions From Kraft Foods Global, Inc.; Richmond Bakery, Henrico County, VA,

SUPPLEMENTAL 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 8hour 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 1hour standard, it was classified as moderate and thereby had to meet the nonCTG RACT requirements of section 182 of the CAA. As part of the 1hour ozone attainment plan, one of the sources located in the area identified as being subject to nonCTG RACT was Nabisco Brands (now Kraft Foods). Cookies, crackers, and pretzels are produced at this plant. The sources of VOC emissions at this plant
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are proofroom, ovens for baking the dough, and oil treatment facilities.

The Kraft Foods Global, Inc. in Henrico County, Virginia underwent RACT analysis, and a federallyenforceable 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 8hour 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 8hour 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 10year period by keeping in place key elements of the current federal and state regulatory programs, including casebycase 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. 10.11198, 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. 10.11198, 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. 10.11199, 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 8hour 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
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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 preexisting 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. 1044). 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. E81777 Filed 13008; 8:45 am]
BILLING CODE 656050P

FOR FURTHER INFORMATION CONTACT Irene Shandruk, (215) 814-2166, or by email at shandruk.irene@epa.gov.