[Federal Register Volume 62, Number 60 (Friday, March 28, 1997)]
[Proposed Rules]
[Pages 14844-14846]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-7819]


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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 123

[FRL-5803-3]


Modification of Michigan's Approved Program to Administer the 
National Pollutant Discharge Elimination System Permitting Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed approval; request for public comment.

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SUMMARY: This document announces EPA's intention to approve 
modification of Michigan's approved National Pollutant Discharge 
Elimination System (NPDES) permitting program, specifically, to 
explicitly and formally recognize that a recent internal reorganization 
of Michigan's environmental agencies is consistent with the minimum 
requirements of the State NPDES program regulations. EPA invites public 
comment on its approval of any modification of the State program that 
may have resulted from the reorganization.

DATES: Comments on this document must be received in writing by April 
28, 1997.

ADDRESSES: Written comments on this document may be submitted to Jo 
Lynn Traub, Director, Water Division, Attn: Michigan NPDES 
Modification, U.S. Environmental Protection Agency, 77 West Jackson 
Boulevard, Chicago, Illinois 60604. In the alternative, 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: Eugene Chaiken, Chief, NPDES Support 
and Technical Assistance Branch at the EPA address noted above or 
telephone at (312) 886-0120.
    A copy of the supporting information for today's notice is 
available for review at: EPA, Region 5, 77 West Jackson Boulevard, 16th 
Floor, Chicago, Illinois; Library of Michigan, Government Documents 
Section, 717 West Allegan, Lansing, Michigan; Olson Library, Northern 
Michigan University, Harden Circle Drive, Marquette, Michigan; and the 
Detroit Public Library Main Branch, Sociology and Economics Department, 
5201 Woodward Avenue, Detroit, Michigan. To arrange for access to the 
docket materials in Chicago, call (312) 886-0120 between 8 a.m. and 
4:30 p.m. (Central time)(Monday-Friday); in Lansing, call (517) 373-
9489 between 9 a.m. and 6 p.m. (Eastern time)(Monday-Saturday), and 
between 12 p.m. and 4 p.m. (Eastern time)(Sunday); in Marquette, call 
(906) 227-2260 for current library hours; and in Detroit, call (313) 
833-1440 between 9:30 a.m. and 5:30 p.m. (Eastern time)(Tuesday, 
Thursday-Saturday), and between 1 p.m. and 9 p.m. (Eastern 
time)(Wednesday).
    The supporting information for today's notice includes: copies of 
Executive Orders 1991-31, 1995-4, and 1995-18 signed by the Governor of 
Michigan on November 8, 1991, February 7, 1995, and July 31, 1995, 
respectively; copies of the correspondence from Michigan to EPA dated 
August 9, 1995 and January 19, 1996, regarding the effects of the 
Executive Orders on Michigan's NPDES program; statements of the 
Michigan Attorney General dated August 2, 1995, and June 13, 1996; an 
October 24, 1996, letter from the Director of MDEQ regarding MDEQ's 
compliance with Clean Water Act conflict of interest requirements; 
NPDES program documents submitted in support of Michigan's original 
(1973) request for EPA approval; a June 14, 1996, letter from the 
Michigan Environmental Council to EPA regarding Michigan Public Act 132 
of 1996; and EPA's preliminary finding of no substantial revisions and 
preliminary approval of any revisions resulting from the Executive 
Orders.

SUPPLEMENTARY INFORMATION: On October 17, 1973, EPA approved the 
National Pollutant Discharge Elimination System (NPDES) permitting 
program submitted by the State of Michigan pursuant to section 402 of 
the

[[Page 14845]]

Clean Water Act. Procedures for revision of State programs at 40 CFR 
123.62 provide for EPA review of any revisions to federally authorized 
State NPDES programs to determine whether or not such revisions are 
substantial and to approve or disapprove any such revisions.
    On November 8, 1991, the Governor of Michigan issued Executive 
Order 1991-31, intended to reorganize and consolidate functions and 
responsibilities of the Michigan environmental agencies. Though 
initially stayed in the Michigan court system, the Michigan Supreme 
Court ultimately upheld the validity of Executive Order 1991-31 on 
September 2, 1993. Dodak v. Engler, 443 Mich. 560, 506 N.W.2d 190 
(1993). Subsequently, the Governor issued additional Executive Orders 
(Executive Orders 1995-4 and 1995-18) related to the organization, 
functions, and responsibilities of the Michigan environmental agencies.
    On May 21, 1993, Michigan submitted a modification to the approved 
program seeking EPA recognition of the State's authority to issue NPDES 
general permits. On November 29, 1993, EPA approved the modification. 
The National Wildlife Federation and the Michigan United Conservation 
Clubs filed a petition in the U.S. Court of Appeals for the Sixth 
Circuit for judicial review of EPA's approval of the modification. By 
joint motions of the parties, that litigation is currently stayed 
while, among other things, EPA publishes today's notice and, 
ultimately, takes final action on it.
    EPA announces today that it has made preliminary determinations 
that Executive Orders 1991-31, 1995-4 and 1995-18 did not make any 
substantial changes in Michigan's approved NPDES program, and that any 
changes to the Michigan NPDES program resulting from these Executive 
Orders should be approved. While not required to do so according to the 
State NPDES program regulations, EPA invites public comment concerning 
the Agency's conclusions, specifically, its preliminary determination 
that the Executive Orders caused no substantial revisions to Michigan's 
NPDES program, as well as EPA's preliminary decision to approve any 
revisions to Michigan's NPDES program that resulted from the Executive 
Orders. Additionally, EPA requests specific comment on the impact, if 
any, the Executive Orders have on EPA approval of the modification to 
the Michigan NPDES program recognizing the State's authority to issue 
general permits. EPA may conduct a public hearing, if there is 
significant public interest based on requests received.
    EPA notes that the Michigan Environmental Council (MEC) filed an 
administrative petition requesting that EPA commence proceedings to 
withdraw Michigan's NPDES program by letter dated June 14, 1996. The 
petition requests that EPA initiate proceedings to withdraw its 
approval of Michigan's NPDES program 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 
petition, EPA is conducting an informal investigation into the 
allegations in the petition. Specifically, EPA has initiated a separate 
process to review Michigan's Public Act 132 of 1996 and its potential 
impact on Michigan's federally delegated and authorized programs, 
including NPDES, to determine whether there is cause to commence 
withdrawal proceedings.
    EPA's preliminary decision only addresses, and this notice is only 
seeking comment on, the impact of the Executive Orders noted above on 
Michigan's NPDES program. EPA's preliminary decision does not address 
the issues raised by MEC regarding Public Act 132 of 1996. EPA intends 
to address those issues in the course of the separate informal 
investigations into the allegations in the petition to commence 
withdrawal proceedings. Although EPA does not seek and does not intend 
to respond on the merits to comments regarding Public Act 132 of 1996 
in this proceeding, EPA will consider such public comments in 
responding to the Petition to commence withdrawal proceedings. Any such 
comments should be sent separately to John Bernstein, Attn: Michigan 
Petition to Withdraw, U.S. Environmental Protection Agency, Mail Code: 
WN-16J, 77 West Jackson Boulevard, Chicago, Illinois 60604.

Regulatory Assessment Requirements

Executive Order 12866

    Under Executive Order 12866 (58 FR 51735; October 4, 1993), the 
Agency must determine whether a 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 EPA action 
on State NPDES programs from OMB review.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 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.
    If EPA finally determines that any revisions to Michigan's NPDES 
program resulting from the Executive Orders should be approved, EPA's 
determination 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. Instead, EPA's determination would 
merely recognize an internal reorganization of an existing approved 
NPDES State program. EPA has determined that such a determination 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, such a 
determination would not be 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

[[Page 14846]]

regulatory proposals with significant Federal intergovernmental 
mandates, and informing, educating, and advising small governments on 
compliance with the regulatory requirements. Because EPA's 
determination to approve of any revisions to Michigan's NPDES program 
resulting from the Executive Orders would merely recognize an internal 
reorganization of an existing approved NPDES State program, EPA has 
determined that such a determination would contain 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. Sec. 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. 
Secs. 604 & 605. The Regional Administrator today certifies, pursuant 
to section 605(b) of the RFA, that approval of any revisions to 
Michigan's NPDES program resulting from Executive Orders would 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 
NPDES 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 NPDES program modification would not impose any new 
burdens on small entities.

Paperwork Reduction Act

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

    Dated: March 14, 1997.
David A. Ullrich,
Acting Regional Administrator.
[FR Doc. 97-7819 Filed 3-27-97; 8:45 am]
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