[Federal Register: January 31, 2008 (Volume 73, Number 21)]
[Proposed Rules]
[Page 5781-5783]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31ja08-26]
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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: 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-
2007-10139. 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 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
[[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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