[Federal Register Volume 62, Number 60 (Friday, March 28, 1997)]
[Proposed Rules]
[Pages 14848-14850]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-7817]


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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 271

[FRL-5803-1]


Michigan: Final Authorization of State Hazardous Waste Management 
Program

AGENCY: Environmental Protection Agency.

ACTION: Notice of proposed rulemaking and public comment period.

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SUMMARY: Michigan has applied for final authorization of revisions to 
its hazardous management program under the Resource Conservation and 
Recovery Act on 1976, as amended, (hereinafter RCRA) resulting from 
Michigan Executive Order 1995-18 (EO 1995-18). The Environmental 
Protection Agency (EPA) has reviewed Michigan's application and has 
reached a proposed decision, subject to public review and comment, that 
the hazardous waste management program revisions resulting from EO 
1995-18 satisfy the requirements necessary to qualify for final 
authorization. Thus, EPA believes it is appropriate to approve these 
Michigan hazardous waste management program revisions. Michigan's 
application for program revision is available for public review and 
comment.

DATES: All comments on this proposed rulemaking must be received by 
close of business on April 28, 1997.

ADDRESSES: Written comments on this document may be submitted to Ms. 
Judy Feigler, U.S. EPA, State Programs and Authorization Section, 
Waste, Pesticides and Toxics Division (DR-7J), 77 West Jackson Blvd., 
Chicago, IL 60604-3590. In the alternative, U.S. EPA will accept 
comments electronically. Comments should be sent to the following 
Internet E-mail address: [email protected]. Electronic 
comments must be submitted in an ASCII file avoiding the use of special 
characters and any form of encryption. EPA will print electronic 
comments in hard-copy paper form for the official administrative 
record. EPA will attempt to clarify electronic comments if there is an 
apparent error in transmission. Comments provided electronically will 
be considered timely if they are submitted electronically by 11:59 p.m. 
(Central Time) April 28, 1997.

FOR FURTHER INFORMATION CONTACT: Ms. Judy Feigler at the EPA address 
noted above or telephone at (312) 886-4179.
    Copies of the State of Michigan's final authorization revision 
application are available during normal business hours at the following 
addresses for inspection and copying: Library of Michigan, Government 
Documents Section, 717 West Allegan, Lansing, Michigan; Olson Library, 
Northern Michigan University, Harden Circle Drive, Marquette, Michigan; 
Detroit Public Library Main Branch, Sociology and Economics Department, 
5201 Woodward Avenue, Detroit, Michigan; and Ms. Judy Feigler, U.S. 
EPA, State Programs and Authorization Section, Waste, Pesticides and 
Toxics Division (DR-7J), 77 West Jackson Blvd., Chicago, IL 60604-3590, 
or telephone (312) 886-4179. To arrange for access to the materials in 
Lansing, call (517) 373-9489 between 9 a.m. and 6 p.m. on Mondays 
through Saturdays and between 12 p.m. and 4 p.m. on Sundays (Eastern 
time); in Marquette, call (906) 227-2260 for current library hours; in 
Detroit, call (313) 833-1440 between 9:30 a.m. and 5:30 p.m. on 
Tuesdays and Thursdays through Saturdays, and between 1 p.m. and 9 p.m. 
on Wednesdays (Eastern time); and in Chicago, call (312) 886-4179 
between 9 a.m. and 4:30 p.m. on Mondays through Fridays.

SUPPLEMENTARY INFORMATION:

A. Background

    States with final authorization under Section 3006(b) of RCRA, 42 
U.S.C. 6929(b), have a continuing obligation to maintain a hazardous 
waste program that is equivalent to, consistent with, and no less 
stringent than the Federal hazardous waste management program. When 
either EPA's or a State program's controlling statutory or regulatory 
authority is modified or supplemented, or when certain other changes 
occur, revisions to State hazardous waste management programs may be 
necessary. The procedures that States and EPA must follow for revision 
of State programs are found at 40 CFR 271.21.
    The State of Michigan initially received final authorization for 
its hazardous waste management program effective on October 30, 1986 
(51 FR 36804-36805, October 16, 1986). Subsequently, Michigan received 
authorization for revisions to its program, effective on January 23, 
1990 (54 FR 225, November 24, 1989); June 24, 1991 (56 FR 18517, April 
23, 1991); November 30, 1993 (58 FR 51244, October 1, 1993); and April 
8, 1996 (61 FR 4742, February 8, 1996). Michigan's Program Description, 
dated June 30, 1984, and addenda thereto dated June 30, 1986; September 
12, 1988; July 31, 1990; August 10, 1992; and March 22, 1995, which is 
a component of the State's original final authorization and subsequent 
revision applications, specified that the Michigan Department of 
Natural Resources (MDNR) was the agency responsible for implementing 
Michigan's hazardous waste management program. The Program Description 
indicated that the Site Review Board (SRB) also had authority to 
approve or deny construction permit applications. The SRB was 
subsequently made a consultative body and the SRB's powers were 
transferred to the Director of the MDNR by Executive Order 1991-31, 
which took effect on September 2, 1993.
    On July 31, 1995, the Governor of Michigan issued Executive Order 
1995-18 (EO 1995-18), which became effective on October 1, 1995. On 
January 19, 1996, Michigan submitted materials for EPA to determine the 
impact of EO 1995-18 upon the authorized State hazardous waste 
management program. The materials consisted of a letter from the 
Michigan Attorney General's office setting forth the State of 
Michigan's analysis as to why the establishment of the new Michigan DEQ 
does not represent a transfer to a ``new agency'' pursuant to 40 CFR 
271.21(c), a copy of EO 1995-18, updated letters of delegation and 
procedures regarding avoidance of conflict of interest in contested 
case proceedings. On June 13, 1996, Michigan submitted a supplemental 
statement of the Michigan Attorney General regarding the appraisal of 
the Attorney General of the impact of EO 1995-18 on Michigan's 
delegated environmental programs. In the supplemental statement, the 
Attorney General explained that the effect of EO 1995-18 was to elevate 
the former Environmental Protection Bureau of the Department of Natural 
Resources to full independent departmental status as the Department of 
Environmental Quality (DEQ). According to the Michigan Attorney 
General, ``the DEQ retained all of its environmental responsibilities 
and virtually all of the personnel formerly assigned to it as a bureau 
of the DNR.''

[[Page 14849]]

The Attorney General further stated that ``E.O. 1995-18 did not 
substantively change the State's statutes or rules relating to the 
administration of federally delegated programs nor was any authority, 
power, duty or function contained within Michigan's statutes or rules 
applicable to federally delegated programs diminished by the execution 
of E.O. 1995-18. Specifically, E.O. 1995-18 did not affect program 
jurisdiction, the scope of activities regulated, criteria for the 
review of permits, public participation, enforcement capabilities or 
the adequacy of Michigan's legal authority to carry out its federally 
delegated programs.'
    Based on the information available, EPA has determined that the 
reorganization of the State's hazardous waste management program 
resulting from EO 1995-18 constitutes a program revision requiring 
appropriate EPA review and approval under RCRA. EPA has also determined 
that the EO 1995-18 did not result in significant modification of 
Michigan's hazardous waste program, nor did the Order transfer any part 
of the program from the approved State agency to any other State 
agency. Therefore, EPA does not view the reorganization as a transfer 
within the purview of 40 CFR 271.21(c).
    Consequently, EPA has made a proposed decision, subject to public 
review and comment, that Michigan's hazardous waste program revisions 
resulting from EO 1995-18 satisfy the requirements necessary to qualify 
for final authorization. The public may submit written comments on 
EPA's proposed decision making up until April 28, 1997. A copy of 
Michigan's application for program revision is available for inspection 
and copying as listed in the ADDRESSES section of this notice.
    EPA wishes to note that it presently has pending before it a 
request, submitted in a letter dated June 14, 1996 by the Michigan 
Environmental Council (MEC), to revoke Michigan's National Pollution 
Discharge Elimination System (NPDES) and Prevention of Significant 
Deterioration (PSD) program approvals, not grant additional program 
delegations and not grant program approval for Boiler and Industrial 
Furnace revisions under RCRA. This request is based upon Michigan's 
recent enactment of Public Act 132 of 1996, which establishes certain 
environmental audit privilege and immunity provisions in the state's 
natural resources and environmental protection code. In response to the 
request, EPA is currently in the process of reviewing Public Act 132 of 
1996 and its potential impact on Michigan's federally delegated, 
approved and authorized programs, including RCRA. EO 1995-18 predated 
passage of Act 132.
    EPA's proposed action today only addresses and seeks comment on the 
impact of EO 1995-18 noted above on Michigan's RCRA program. EPA's 
decision to preliminarily approve of revisions to Michigan's RCRA 
program arising out of EO 1995-18 does not express any viewpoint on the 
question of whether there are legal deficiencies in Michigan's RCRA 
program resulting from Public Act 132 of 1996, which was enacted after 
this Executive Order was issued. EPA will subsequently address the 
issues raised by MEC regarding Public Act 132 of 1996 in responding to 
the MEC request.
    Approval of Michigan's program revision shall become effective upon 
publication of the Regional Administrator's final approval in the 
Federal Register. If adverse comment pertaining to Michigan's program 
revision is received during the comment period, EPA will publish 
either: (1) A notice of disapproval; or (2) a final approval of the 
modifications, which would include appropriate comment response.
    If final approval is granted, Michigan will maintain final 
authorization to operate its hazardous waste management program, as 
revised by EO 1995-18. Michigan will continue to have responsibility 
for permitting treatment, storage, and disposal facilities within its 
borders and carrying out other aspects of the RCRA program, subject to 
the limitation of its revised program application and previously 
approved authorities. Michigan also will maintain primary enforcement 
responsibilities, although EPA retains the right to conduct inspections 
under section 3007 of RCRA, and to take enforcement actions under 
sections 3008, 3013 and 7003 of RCRA.
    Michigan is not seeking authority to operate the Federal program on 
Indian lands. This authority will remain with EPA unless provided 
otherwise in a future statute or regulation.

Executive Order 12866

    Under Executive Order 12866 (58 FR 51735; October 4, 1993), the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines ``significant regulatory action'' as 
one that is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more, 
or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    The Office of Management and Budget (OMB) has exempted this action 
from E.O. 12866 review.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L. 
104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year.
    Today's proposal would contain no Federal mandates (under the 
regulatory provisions of Title II of the UMRA) for State, local, or 
tribal governments or the private sector. Today's proposal would merely 
recognize an internal reorganization of an existing approved RCRA State 
program. EPA has determined that this proposal would not contain any 
Federal mandate that may result in expenditures of $100 million or more 
for State, local, and tribal governments, in the aggregate, or the 
private sector in any one year. Therefore, today's proposal is not 
subject to the requirements of section 202 of the UMRA.
    Before EPA establishes any regulatory requirements that may 
significantly or uniquely affect small governments, including tribal 
governments, it must have developed under section 203 of the UMRA a 
small government agency plan. The plan must provide for notifying 
potentially affected small governments, enabling officials of affected 
small governments to have meaningful and timely input in the 
development of EPA regulatory proposals with significant Federal 
intergovernmental mandates, and informing, educating, and advising 
small governments on compliance with the regulatory requirements. 
Because

[[Page 14850]]

today's proposal would merely recognize an internal reorganization of 
an existing approved RCRA State program, EPA has determined that this 
proposal contains no regulatory requirements that might significantly 
or uniquely affect small governments.

Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) provides that, whenever an 
agency promulgates a final rule under 5 U.S.C. 553, after being 
required to publish a general notice of proposed rulemaking, an agency 
must prepare a final regulatory flexibility analysis unless the head of 
the agency certifies that the final rule will not have a significant 
economic impact on a substantial number of small entities. 5 U.S.C. 604 
& 605. The Regional Administrator today certifies, pursuant to section 
605(b) of the RFA, that approval of any revisions to Michigan's RCRA 
program resulting from the reorganization of the Michigan environmental 
agencies will not have a significant impact on a substantial number of 
small entities.
    The basis for the certification is that EPA's approval would simply 
result in an administrative change in the structure of the approved 
RCRA program, rather than a change in the substantive requirements 
imposed on any small entity in the State of Michigan. Such an approval 
would not affect the substantive regulatory requirements under existing 
State law to which small entities are already subject. Additionally, 
approval of the RCRA program modification would not impose any new 
burdens on small entities.

Paperwork Reduction Act

    The proposal contains no requests for information and consequently 
is not subject to the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

List of Subjects in 40 CFR Part 271

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous materials transportation, 
Hazardous waste, Indian lands, Intergovernmental relations, Penalties, 
Reporting and record keeping requirements, Water pollution control, 
Water supply.

    Authority: This notice is issued under the authority of Sections 
2002(a), 3006 and 7004(b) of the Solid Waste Disposal Act as 
amended, 42 U.S.C. 6912(a), 6926, 6974(b).

    Dated: March 14, 1997.
David A. Ullrich,
Acting Regional Administrator.
[FR Doc. 97-7817 Filed 3-27-97; 8:45 am]
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