[Federal Register Volume 60, Number 181 (Tuesday, September 19, 1995)]
[Proposed Rules]
[Pages 48435-48439]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-23204]



=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[AD-FRL-5298-1]


Clean Air Act Proposed Disapproval of Operating Permits Program; 
Commonwealth of Virginia

AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed disapproval.

-----------------------------------------------------------------------

SUMMARY: EPA is proposing to disapprove the Commonwealth of Virginia's 
Operating Permits Program, which Virginia submitted in response to 
Federal requirements that States adopt programs providing for the 
issuance of operating permits to all major stationary sources and to 
certain other sources. EPA is proposing disapproval of Virginia's 
submittal because Virginia's program does not afford all persons who 
are entitled to seek judicial review of operating permits with the 
legal standing to obtain such review, does not assure that all sources 
required by the Clean Air Act (CAA) to obtain Title V permits will be 
required to obtain such permits, and does not contain an adequate 
provision for collection of Title V program fees.

DATES: Comments on this proposed action must be received in writing by 
October 19, 1995.

ADDRESSES: Comments should be submitted to Ray Chalmers, USEPA Region 
III; Air, Radiation, & Toxics Division; 841 Chestnut Building; 
Philadelphia, PA 19107.
    Copies of the State's submittal and other supporting information 
used in developing the proposed disapproval are available for 
inspection during normal business hours at the following location: U.S. 
EPA Region III; Air, Radiation, & Toxics Division; 841 Chestnut 
Building; Philadelphia, PA 19107.

FOR FURTHER INFORMATION CONTACT: Ray Chalmers, 3AT23; U.S. EPA Region 
III; Air, Radiation, & Toxics Division; 841 Chestnut Building; 
Philadelphia, PA 19107. (215) 597-9844.

SUPPLEMENTARY INFORMATION:

I. Introduction

    Title V of the CAA, 42 U.S.C. Secs. 7661-7611f, requires that 
States develop programs for issuing operating permits to all major 
stationary sources and to certain other sources, that they submit those 
programs to EPA by November 15, 1993, and that EPA approve or 
disapprove each program within 1 year after receiving the submittal. 
The EPA's program review occurs pursuant to section 502 of the CAA and 
regulations promulgated at 40 Code of Federal Regulations (CFR) Part 
70. The regulations promulgated at 40 CFR Part 70 define the minimum 
elements of an approvable State operating permits program and the 
corresponding standards and procedures by which the EPA will approve or 
disapprove and oversee implementation of State operating permits 
programs (see 57 FR 32250 (July 21, 1992)). Where a program 
substantially, but not fully, meets the requirements of section 502 of 
the CAA or of Part 70, EPA may grant the program interim approval for a 
period of up to 2 years. If EPA has not fully approved a program by 2 
years after the November 15, 1993 date, or by the end of an interim 
program, it must establish and implement a Federal program.
    Due in part to pending litigation over several aspects of the Part 
70 rule promulgated on July 21, 1992, Part 70 is in the process of 
being revised. When the final revisions to Part 70 are promulgated, the 
requirements of the revised Part 70 will define EPA's criteria for the 
minimum elements of an approvable State operating permits program and 
the corresponding standards and procedures by which EPA will review 
State operating permits program submittals. Until the date on which the 
revisions to Part 70 are promulgated, the currently effective July 21, 
1992 version of Part 70 shall be used as the basis for EPA review.

[[Page 48436]]

    Virginia submitted a Title V program to EPA on November 12, 1993. 
The submittal included regulations, an Attorney General's opinion, a 
program description, permitting program documentation, and other 
required elements. On January 14, 1994, Virginia submitted a 
supplemental letter pertaining to enhanced monitoring. In a Federal 
Register notice published December 5, 1994 (59 Fed. Reg. 62324), EPA 
disapproved this program.1 On January 9, 1995, Virginia submitted 
revised regulations and a revised Attorney General's opinion as 
amendments to its original program, and asked that EPA approve the 
revised program. On January 17, 1995, Virginia submitted an additional 
copy of the revised regulations (the version published in the Virginia 
Register). On April 18, 1995, EPA found Virginia's January 9, 1995 
submittal to be administratively complete, pursuant to 40 CFR 
70.4(e)(1). Finally, on May 17, 1995, Virginia again amended its 
program by submitting revised statutory language and an amended 
Attorney General's opinion.

    \1\The Commonwealth of Virginia filed an appeal of this 
rulemaking in the United States Court of Appeals for the Fourth 
Circuit (Case No. 95-1052).
---------------------------------------------------------------------------

    The analysis contained in this document focuses on the major 
corrections required in Virginia's operating permit program submittals 
to enable Virginia's program to meet the minimum requirements of 40 CFR 
Part 70 and the CAA. The full program submittal, the Technical Support 
Document (TSD), providing additional analysis of Virginia's submittal, 
and other relevant materials providing more detailed information are 
available as part of the public docket.

II. Analysis of State Submittal

A. Statutes, Regulations and Program Implementation

    Virginia's operating program submittal does not substantially meet 
the requirements of the CAA and of the implementing regulations at 40 
CFR Part 70 because it: (1) Does not adequately afford persons the 
opportunity to seek judicial review of final permit decisions; (2) does 
not assure that all sources required by the CAA to obtain Title V 
permits will be required to obtain such permits; and (3) does not 
contain an adequate provision for collection of Title V program fees. 
These issues are discussed below, and in the TSD. In addition, this 
notice and the TSD specify other deficiencies which must be corrected 
before EPA can grant full approval to Virginia's operating permits 
program.
1. Standing for Judicial Review
    EPA is proposing to disapprove Virginia's Title V program because 
it does not adequately provide interested parties with adequate 
standing to obtain judicial review of final Title V permit decisions. 
As described in the December 5, 1994 final disapproval notice, EPA 
interprets section 502(b)(6) of the CAA and 40 CFR 70.4(b)(3)(x) as 
requiring that approvable Title V permit programs provide any party who 
participated in the public comment process on a permit action and who 
meets the threshold standing requirements of Article III of the U.S. 
Constitution with the opportunity to obtain judicial review of an 
operating permit in State court. (See 59 FR 62325). The Commonwealth's 
January 9, 1995, submittal did not correct the previously identified 
deficiency in Virginia's standing provisions. In particular, Virginia 
did not amend the standing provisions of Section 10.1-1318(B) of the 
Code of Virginia. Those provisions continue to extend the right to seek 
judicial review only to persons who have suffered an ``actual, 
threatened, or imminent injury * * *'' where ``such injury is an 
invasion of an immediate, legally protected, pecuniary and substantial 
interest which is concrete and particularized * * *'' Virginia's 
statute does not enable a party who meets the minimum threshold 
standing requirements of Article III of the U.S. Constitution to obtain 
access to Virginia's court system and therefore it fails to meet the 
minimum requirements for providing an opportunity for judicial review 
as required by section 502(b)(6) of the CAA and 40 CFR 70.4(b)(3)(x).
    The Commonwealth's Attorney General has questioned the validity of 
EPA's interpretation of section 502(b)(6) of the CAA and, if that 
interpretation is valid, of the constitutionality of the CAA. EPA 
believes that its interpretation of section 502(b)(6) of the CAA is 
reasonable and is supported by the language of the CAA, its legislative 
history, and the goals Congress sought to achieve under Title V of the 
CAA. In addition, EPA believes that Title V of CAA and its related 
sanctions provisions do not violate the U.S. Constitution. (See 59 FR 
62325-62327).
    EPA must disapprove Virginia's program and cannot merely grant it 
interim approval on this issue because this deficiency is so 
significant that it prevents the entire program from substantially 
meeting the requirements of 40 CFR Part 70. If Virginia is permitted to 
narrowly preclude public commenters from exercising judicial review 
rights, one of the chief incentives for permit decision makers to fully 
consider public comments would be significantly reduced and the public 
comments process would thereby be rendered less meaningful. The guiding 
principle that EPA considers in all evaluations of approvability of 
interim programs is whether the proposed program can ensure the 
issuance of good permits. Only after a permit program is found to 
substantially meet the requirements of Part 70 can the criteria in 40 
CFR Sec. 70.4(d)(3) be applied to determine if the program is eligible 
for interim approval.
    EPA cannot approve Virginia's operating permit program until 
Virginia amends Va. Code Sec. 10.1-1318(B) to correct this deficiency.
2. Applicability Under the Operating Permits Program
    EPA is also proposing to disapprove Virginia's submittal because it 
does not ensure the applicability of the Title V operating permit 
program to all sources subject to the program under 40 CFR 70.3. 
Virginia's regulations provide that the operating permit program 
applies to sources subject to certain listed air pollution control 
requirements. (See Sec. 120-08-0501 and Sec. 120-08-0601.) In these 
applicability sections the Commonwealth should have listed all the CAA 
requirements which trigger Title V applicability, as they are set forth 
at 40 CFR 70.3. Instead, Virginia lists, in several cases, its own air 
pollution control regulations, in which Virginia incorporates federal 
CAA Sec. 111 and Sec. 112 requirements. Virginia states in Rule 8-5, 
Sec. 120-08-0501, and in Rule 8-6, Sec. 120-08-0601, that sources are 
subject to its operating permits rule if they are subject to Virginia's 
regulatory provisions of Parts IV, V and VI as adopted pursuant to 
sections 111 and 112 of the CAA. To meet the requirements of 40 CFR 
70.3, Virginia must revise Sec. 120-08-0501 and Sec. 120-08-0601 to 
state that sources are subject to the operating permits rule if they 
are subject to a standard, limitation or other requirement under 
sections 111 or 112 of the CAA.
    EPA cannot approve Virginia's operating permit program until 
Virginia corrects the deficiencies discussed above.
3. Permit Fee Demonstration
    EPA is also proposing to disapprove Virginia's submittal because it 
does not contain an adequate permit fee demonstration. Virginia's Rule 
8-6, entitled ``Permit Program Fees for Stationary Sources,'' includes 
a formula to be used for calculating permit fees. Under this formula a 
base year fee 

[[Page 48437]]
amount is to be increased each year by the amount of inflation as 
measured by the consumer price index for all urban consumers. This part 
of the formula meets the permit fee requirements of 40 CFR Sec. 70.9.
    However, in the formula Virginia defines the base year amount not 
as $25, which is the minimum required for EPA to presume a State fee to 
be adequate, as specified under 40 CFR Sec. 70.9, but rather as ``the 
base year amount specified in Sec. 10.1-1322(B) of the Virginia Air 
Pollution Control Law, expressed in dollars per ton.'' Section 10.1-
1322(B) does not define a certain base year fee, but states only that 
``The annual permit program fees shall not exceed a base year amount of 
twenty-five dollars per ton using 1990 as the base year, and shall be 
adjusted annually by the Consumer Price Index as described in Sec. 502 
of the federal Clean Air Act.'' For Virginia's program to be 
approvable, the fee assessment formula in Virginia Rule 8-6 must be 
revised to specify a base year fee amount of $25 per ton, with a base 
year of 1989 adjusted for inflation, as provided for under 40 CFR 
Sec. 70.9. Also, Sec. 10.1-1322(B) should be changed to specify a base 
year of 1989.
    Virginia Rule 8-6 also includes a provision, in Secs. 120-08-
0604.D. and E., which allows Virginia to assess a fee of less than $25 
per ton (1989 dollars) adjusted for inflation, if Virginia determines 
that it would collect more money than required to fund its Title V 
program if it assessed the full $25 per ton fee (1989 dollars), 
adjusted for inflation. If Virginia chooses in the future to collect a 
fee of less than $25 (1989 dollars), adjusted for inflation, its fee 
assessment would no longer meet the requirement for presumed adequacy 
under 40 CFR Sec. 70.9. Accordingly, Virginia would trigger the 
requirements under 40 CFR Sec. 70.9(b)(5) that it provide EPA with a 
detailed accounting that its fee schedule meets the requirements of 40 
CFR Sec. 70.9(b)(1).
    Before the Commonwealth assesses a fee lower than the presumptive 
minimum of Sec. 25 per ton (1989 dollars), adjusted for inflation, it 
must obtain EPA approval of such a fee. EPA would approve such a fee if 
Virginia submitted a detailed accounting showing that the fee would 
result in the collection of sufficient funds to run a fully adequate 
Title V program. This requirement for EPA approval of any fee lower 
than the presumptive minimum is consistent with the requirements of 40 
CFR Sec. 70.9, and is implied by Sec. 120-08-0604.D. which states that 
``Any adjustments made to the annual permit program fee shall be made 
within the constraints of 40 CFR Sec. 70.9.''
4. Insignificant Activities
    Section 70.4(b)(2) requires States to include in their operating 
programs any criteria used to determine insignificant activities or 
emission levels for the purposes of determining complete applications. 
Section 70.5(c) provides that an application for a Part 70 permit may 
not omit information needed to determine the applicability of, or to 
impose, any applicable requirement, or to evaluate appropriate fee 
amounts. Section 70.5(c) further states that EPA may approve, as part 
of a State program, a list of insignificant activities and emissions 
levels which need not be included in permit applications. Under Part 
70, a State may approve as part of that State's program any activity or 
emission level that the State wishes to consider insignificant. Part 
70, however, does not establish specific emission levels for 
insignificant activities, relying instead on a case-by-case 
determination of appropriate levels based on the particular 
circumstances of the Part 70 program under review.
    In Appendix W of Rules 8-5 and 8-6 Virginia defines various 
specified types of emission units as insignificant for purposes of 
Title V permitting, and states that these units are not required to be 
identified in Title V applications. The Appendix also states that other 
unspecified types of units can be considered insignificant if their 
emissions or their size or production rate are below certain levels. 
These units must be listed in Title V applications, and their 
emissions, size, or production rate must be given, whichever is 
relevant, but no additional information must be supplied regarding 
them.
    EPA has several concerns regarding Virginia's classifications of 
insignificant sources. One overall concern is that under Virginia Rule 
8-5 and Appendix W the determination of whether or not a source is 
subject to the operating permit program can be done without taking into 
account emissions from units considered to be insignificant. If the 
total emissions from units subject to Title V requirements were just 
below the level which would trigger Title V program applicability, 
failure to take into account additional emissions from units which are 
exempt could result in a source avoiding Title V requirements when it 
should be subject to those requirements. EPA recommends that Virginia 
correct this deficiency by modifying the statements found in Sec. 120-
08-505D(1)(a)(2) and in Appendix W(I)(A)(4), which require that ``the 
emissions from any emissions unit shall be included in the permit 
application if the omission of those emission units from the 
application would interfere with the determination or imposition of any 
applicable requirement or the calculation of permit fees.'' The last 
portion of this statement should be modified to state ``if the omission 
of those emission units would interfere with the determination of Title 
V applicability, the determination or imposition of an applicable 
requirement, or the calculation of permit fees.''
    EPA is also concerned that when Virginia defined emissions units as 
insignificant based on their emissions levels, Virginia used emissions 
levels which are too high. Specifically, EPA is concerned that Virginia 
defined as insignificant all emissions units with uncontrolled 
emissions of less than 10 tons per year of nitrogen dioxide, sulfur 
dioxide, and total suspended particulates or particulate matter (PM10), 
less than seven tons per year of volatile organic compounds, and less 
than 100 tons per year of carbon monoxide. Virginia defines 
``uncontrolled emissions'' as emissions from a source when operating at 
maximum capacity without air pollution control equipment. Insignificant 
activity thresholds that are considered to be ``sound'' by EPA would 
fall in the range of 1 to 2 tons per year for criteria pollutants. EPA 
is also concerned that Virginia defined as insignificant all other 
pollutant emission sources (many of them hazardous emission sources) 
with emissions less than the section 112(g) de minimis levels set forth 
at 40 CFR Sec. 63.44 or the accidental release threshold levels found 
at 40 CFR Sec. 68.130. These levels are appropriate in many cases, but 
are too high in others. Accordingly, EPA believes that Virginia should 
modify this provision to indicate that sources emitting other air 
pollutants are considered insignificant if their emissions are below 
the lesser of the Sec. 112(g) threshold levels set forth at 40 CFR 
Sec. 63.44, the accidental release thresholds set forth at 40 CFR 
Sec. 68.130, or 1000 pounds per year. EPA believes that the above 
criteria and other pollutant emission levels are sufficiently below the 
applicability thresholds for many applicable requirements to assure 
that no unit potentially subject to an applicable requirement would be 
omitted from a Title V application.
    EPA is concerned that Virginia did not provide EPA with sufficient 
information to properly evaluate whether or not all of the activities 

[[Page 48438]]
which Virginia included on its list of insignificant activities are 
appropriate. Of key importance to EPA in reviewing such lists is that 
no source subject to an applicable federal requirement should be 
included on the list, pursuant to 40 CFR Sec. 70.5. Virginia did not 
provide a demonstration that the activities it listed are not likely to 
be subject to such requirements. Also important in reviewing such lists 
is that the emissions from the activities listed be truly 
insignificant, and Virginia did not provide EPA with information on the 
likely emissions of the activities listed. However, it is clear that 
Virginia has incorrectly listed as insignificant both ``comfort air 
conditioning'' and ``refrigeration systems,'' which are subject to 
stratospheric ozone protection requirements established by Title VI of 
the CAA. Virginia should remove both comfort air conditioning and 
refrigeration systems from the insignificant activities list.
    EPA cannot fully approve Virginia's operating permit program until 
Virginia corrects the deficiencies discussed above.
5. Variance Provision
    While not a disapproval issue, it should be noted that Virginia has 
the authority to issue a variance from requirements imposed by Virginia 
law. The variance provision at Va. Code Sec. 10.1-1307.C. empowers the 
Air Pollution Control Board, after a public hearing, to grant a local 
variance from any regulation adopted by the board. EPA regards this 
provision as wholly external to the program submitted for approval 
under Part 70, and consequently is proposing to take no action on this 
provision of Virginia law. EPA has no authority to approve provisions 
of State law, such as the variance provision referred to, which are 
inconsistent with the CAA. EPA does not recognize the ability of a 
permitting authority to grant relief from the duty to comply with a 
federally enforceable permit, except where such relief is consistent 
with the applicable requirements of the CAA and is granted through 
procedures allowed by Part 70. EPA reserves the right to enforce the 
terms of the permit where the permitting authority purports to grant 
relief from the duty to comply with a permit in a manner inconsistent 
with the CAA and Part 70 procedures.

B. Provisions Implementing Other CAA Requirements

1. Authority and Commitments for Section 112 Implementation
    Virginia requested that EPA grant Virginia ``delegation of 
authority upon approval of the operating permit program for all Section 
112 programs except Section 112(r), prevention of accidental 
releases.'' Because EPA is disapproving Virginia's Title V submittal, 
Virginia's request for delegation has not been triggered.
    Virginia demonstrated that it has in Va. Code Sec. 10.1-1322.A. and 
Rule 8-5 the broad legal authority to incorporate into permits and to 
enforce most applicable CAA section 112 requirements. However, Virginia 
also indicated that it may require additional authority to conduct 
certain specific section 112 activities. Virginia supplemented its 
broad legal authority with a commitment to ``develop the state 
regulatory provisions as necessary to carry out these programs and the 
responsibilities under the delegation after approval of the operating 
permit program and EPA has issued the prerequisite guidance for 
development of these title III programs.'' Also, Virginia has the 
authority under Sec. 120-08-0505.K. to require that an applicant state 
that the source has complied with CAA Sec. 112(r) or state in the 
compliance plan that the source intends to comply and has set a 
schedule to do so.
    EPA had until recently interpreted the CAA as requiring sources to 
comply with section 112(g) beginning on the date of approval of a Title 
V program regardless of whether or not EPA had completed its section 
112(g) rulemaking. EPA has since revised this interpretation of the CAA 
as described in a February 14, 1995 Federal Register notice (see 60 FR 
83333). The revised interpretation postpones the effective date of 
section 112(g) until after EPA has promulgated a rule addressing that 
provision. The rationale for the revised interpretation is set forth in 
detail in the February 14, 1995 interpretive notice.
    The section 112(g) interpretive notice explains that EPA is still 
considering whether the effective date of section 112(g) should be 
delayed beyond the date of promulgation of the federal rule to allow 
States time to adopt rules implementing the federal rule, and that EPA 
will provide for any such additional delay in the final section 112(g) 
rulemaking. Unless and until EPA provides for such an additional 
postponement of section 112(g), Virginia would be required, if it were 
delegated authority to implement section 112(g), to be able to 
implement section 112(g) during the transition period between 
promulgation of the federal section 112(g) rule and adoption of 
implementing Virginia regulations.
2. Acid Rain Provisions
    Virginia's program does not contain all provisions required 
relating to acid rain sources, but Virginia has committed to submit the 
required provisions shortly, and EPA find Virginia's commitment 
acceptable. Virginia's program properly requires ``affected sources'' 
to obtain operating permits, and Virginia defines an ``affected 
source'' as a source containing one or more ``affected units,'' which 
are themselves defined as ``a unit subject to any acid rain emissions 
reduction requirement or acid rain emissions limitation under 40 CFR 
Parts 72, 73, 75, 76, 77, or 78.'' However, Virginia has not defined as 
an ``applicable requirement'' any of these acid rain emissions 
reduction requirements or limitations. Therefore, Virginia's operating 
permits would not be required to include any of these requirements.
    Virginia is aware of this deficiency and has committed to correct 
it. In Virginia's operating permits program submittal of January 9, 
1995, Virginia committed to adopting an acid rain regulation by the 
latter half of 1995. Virginia stated that under this regulation it 
would issue acid rain sources operating permits which would include all 
requirements of the acid rain program. In a statement included in that 
submittal, Virginia's Attorney General also committed to provide EPA, 
when Virginia submits its acid rain regulation, with the required legal 
opinion regarding Virginia's legal authority to carry out the acid rain 
portion of the operating permits program.

III. Proposed Action and Implications

    The EPA is proposing to disapprove the operating permits program 
contained in submittals from Virginia dated November 12, 1993, January 
14, 1994, January 9, 1995, January 17, 1995, and May 17, 1995. If 
promulgated, this disapproval would constitute a disapproval under 
section 502(d) of the CAA (see generally 57 FR 32253-54). As provided 
under section 502(d)(1) of the CAA, Virginia would have up to 180 days 
from the date of EPA's notification of disapproval to the Governor to 
revise and resubmit the program.
    If EPA finalizes this proposed disapproval, Virginia may become 
subject to sanctions under the CAA. Pursuant to section 502(d)(2)(A) of 
the CAA, EPA may, at its discretion, apply any of the sanctions in 
section 179(b) at any time following the effective date of 

[[Page 48439]]
a final disapproval. The available sanctions include a prohibition on 
the approval by the Secretary of Transportation of certain highway 
projects or the awarding of certain federal highway funding, and a 
requirement that new or modified stationary sources or emissions units 
for which a permit is required under Part D of Title I of the CAA 
achieve an emissions reductions-to-increases ratio of at least 2-to-1. 
In addition, EPA is required by section 502(d)(2)(B) of the CAA to 
apply one of the sanctions in section 179(b), as selected by the 
Administrator, on the date 18 months after the effective date of a 
final disapproval, unless prior to that date Virginia has submitted a 
revised operating permits program and EPA has determined that it 
corrects the deficiencies that prompted the final disapproval. 
Moreover, if the Administrator finds a lack of good faith on the part 
of Virginia, both sanctions shall apply after the expiration of the 18-
month period until the Administrator determines that Virginia has come 
into compliance. In all cases, if, six months after EPA applies the 
first sanction, Virginia has not submitted a revised program that EPA 
has determined corrects the disapproved program's deficiencies, a 
second sanction is required. Finally, if EPA has not granted full 
approval to Virginia's program by November 15, 1995, and Virginia's 
program at that point does not have interim approval status, EPA must 
promulgate, administer and enforce a Federal permits program for 
Virginia on that date.
    EPA first disapproved Virginia's operating permits program in a 
Federal Register notice published on December 5, 1994, which became 
effective on January 5, 1995. As a result, EPA's authority to apply 
discretionary sanctions to Virginia arose on January 5, 1995, and the 
18-month period before which EPA is required to apply sanctions also 
began on that date.
    Consequently, following today's proposed disapproval EPA continues 
to have the authority to apply discretionary sanctions to Virginia and 
will be required to apply sanctions on July 5, 1996, unless by that 
date EPA determines Virginia has corrected each of the deficiencies 
that prompted EPA's original disapproval. Moreover, if today's proposed 
disapproval is finalized, EPA would be required to apply sanctions 18 
months after the effective date of such action, unless by that date EPA 
determines Virginia has corrected each of the deficiencies that 
prompted EPA's disapproval and that were not the subject of the 
original final disapproval action.

IV. Proposed Action

     EPA is proposing to disapprove the submittals made on January 9, 
1995 and May 17, 1995 by the Commonwealth of Virginia to satisfy the 
requirements for the operating permits program required by Title V of 
the Clean Air Act for the reasons outlined in this notice.

V. Administrative Requirements

A. Request for Public Comments

    The EPA is requesting comments on all aspects of this proposed 
disapproval. Copies of the State's submittal and other information 
relied upon for the proposed disapproval are contained in a docket 
maintained at the EPA Regional Office. The docket is an organized and 
complete file of all the information submitted to, or otherwise 
considered by, EPA in the development of this proposed disapproval. The 
principal purposes of the docket are: (1) To allow interested parties a 
means to identify and locate documents so that they can effectively 
participate in the disapproval process; and (2) to serve as the record 
in case of judicial review. The EPA will consider any comments received 
by October 19, 1995.

B. Executive Order 12866

    The Office of Management and Budget has exempted this action from 
Executive Order 12866 review.

C. Regulatory Flexibility Act

    The EPA's actions under section 502 of the CAA do not create any 
new requirements, but simply address operating permits programs 
submitted to satisfy the requirements of 40 CFR Part 70. Because this 
action does not impose any new requirements, it does not have a 
significant impact on a substantial number of small entities.

D. Federal Mandates

    Under Section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final action that includes a Federal mandate that may result in 
estimated costs to State, local, or tribal governments in the 
aggregate; or to the private sector, of $100 million or more. Under 
section 205, EPA must consider the most cost-effective and least 
burdensome alternative that achieves the objectives of the rule and is 
consistent with statutory requirements. Section 203 requires EPA to 
establish a plan for informing and advising any small governments that 
may be significantly or uniquely impacted by the rule. EPA has 
determined that this proposed disapproval action of Virginia's Title V 
Operating Permits Program does not include a Federal mandate that may 
result in estimated costs of $100 million or more to either State, 
local, or tribal governments in the aggregate, or to the private 
sector. This Federal action disapproves pre-existing requirements under 
State or local law, and imposes no new Federal requirements. 
Accordingly, no additional costs to State, local, or tribal 
governments, or to the private sector, result from this action.

List of Subjects in 40 CFR Part 70

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Operating permits, 
and Reporting and recordkeeping requirements.

    Authority: 42 U.S.C. 7401-7671q.

    Dated: September 8, 1995.
W. Michael McCabe,
Regional Administrator, Region III.
[FR Doc. 95-23204 Filed 9-18-95; 8:45 am]
BILLING CODE 6560-50-P