	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].  

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

   HYPERLINK "http://www.regulations.gov"  www.regulations.gov .  Follow
the on-line instructions for submitting comments.

     B.    E-mail:    HYPERLINK "mailto:fernandez.cristina@epa.gov" 
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, 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 website 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   HYPERLINK "mailto:shandruk.irene@epa.gov" 
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) (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.”, 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.).  
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 (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.

___January 23, 2008____________           	
___________/s/_________________

Dated:                                                      		William T.
Wisniewski, Acting

                                                                	
Regional Administrator,

                                                                 	
Region III.

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