[Federal Register Volume 62, Number 220 (Friday, November 14, 1997)]
[Rules and Regulations]
[Pages 61170-61173]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-29622]



[[Page 61169]]

_______________________________________________________________________

Part II





Environmental Protection Agency





_______________________________________________________________________



40 CFR Parts 123, 233, and 271



Approval of Modifications to Michigan's Approved Program To Administer 
the National Pollutant Discharge Elimination System Permitting Program 
Resulting From the Reorganization of the Michigan Environmental 
Agencies; Final Rule



Approval of Modifications to Michigan's Assumed Program To Administer 
the Section 404 Permitting Program Resulting From the Reorganization of 
the Michigan Environmental Agencies; Final Rule



Michigan: Final Authorization of Revisions to State Hazardous Waste 
Management Program; Final Rule

  Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / 
Rules and Regulations  

[[Page 61170]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 123

[FRL-5918-6]


Approval of Modifications to Michigan's Approved Program To 
Administer the National Pollutant Discharge Elimination System 
Permitting Program Resulting From the Reorganization of the Michigan 
Environmental Agencies

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of approval.

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SUMMARY: Notice is hereby given that the Environmental Protection 
Agency (EPA) approves of the modifications of Michigan's approved 
National Pollutant Discharge Elimination System (NPDES) permitting 
program which resulted from certain Michigan Executive Orders which 
reorganized Michigan's environmental agencies.

EFFECTIVE DATE: Consistent with 40 CFR 123.62(b)(4), this action is 
effective November 14, 1997. In accordance with 40 CFR 23.2, EPA 
explicitly provides that this action shall be considered issued for the 
purposes of judicial review November 14, 1997, at 1 p.m. eastern 
daylight time. Under section 509(b)(1) of the Clean Water Act, judicial 
review of this action can be obtained only by filing a petition for 
review in the United States Court of Appeals within 120 days after it 
is considered issued for the purposes of judicial review.

FOR FURTHER INFORMATION CONTACT: Eugene Chaiken, Chief, NPDES Support 
and Technical Assistance Branch, Water Division, U.S. Environmental 
Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604 
(312) 886-0120.

SUPPLEMENTARY INFORMATION:

    Note: This action is one of four Federal Register actions 
related to reorganization of state environmental agencies in 
Michigan. All these actions are published together in this Federal 
Register, with the exception of a Clean Air Act State Implementation 
Plan published on November 6, 1997 at 62 FR 59995.

I. Background

    On October 17, 1973, EPA approved the NPDES permitting program 
submitted by the State of Michigan pursuant to section 402 of the 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.
    The Michigan Water Resources Commission (MWRC) was the name of the 
agency authorized to administer the NPDES program in Michigan on 
October 17, 1973. On November 8, 1991, the Governor of Michigan issued 
Executive Order 1991-31, which reorganized and consolidated Michigan's 
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).
    Pursuant to Executive Order 1991-31, all of MWRC's authority, 
powers, duties, functions and responsibilities pertaining to Michigan's 
NPDES program were transferred to the Director of the Michigan 
Department of Natural Resources (MDNR), except that adjudicatory 
authority and authority to conduct contested case hearings were 
transferred to the Michigan Natural Resources Commission (MNRC). 
Executive Order 1995-4 then transferred all MNRC authority to make 
decisions regarding administrative appeals of surface water permit 
applications to the MDNR Office of Administrative Hearings. The 
Attorney General of the State of Michigan, in a statement dated August 
2, 1995, certified to the following:

    Executive Order Nos. 1991-31 and 1995-4 and the Governor and 
Director's letter dated February 3, 1995 do not change the State's 
statutes or rules which provide adequate authority to the State of 
Michigan to carry out the program set forth in Governor William G. 
Milliken's ``Program Description'' dated July 17, 1973. In fact, 
State statutes and rules are essentially unaffected by these 
Executive Orders and letter. The only way in which the statutes and 
rules are affected is by changing the person or entity responsible 
for carrying out the various functions set forth within these 
statutes and rules. This type of reorganization of functions is 
consistent with the Constitution of Michigan of 1963, Article V, 
Section II.
    No authority, power, duties and functions contained within 
Michigan's statutes or rules applicable to the NPDES program have 
been eliminated or changed except for the party responsible for 
carrying out such authority, powers, duties and functions. 
Accordingly, in my opinion, the laws of the State of Michigan 
continue to provide adequate authority to carry out the program set 
forth in the ``Program Description'' submitted by Governor William 
G. Milliken on July 17, 1973. The adequacy of this legal authority 
is unaffected by Executive Order Nos. 1991-31, 1995-4 and the 
Governor and Director's letter dated February 3, 1995.

    On July 31, 1995, Michigan's Governor John Engler signed Executive 
Order 1995-18, which inter alia, elevated the former Environmental 
Protection Bureau of the MDNR to full independent departmental status 
called the Michigan Department of Environmental Quality (MDEQ). The 
MDEQ retained all of its responsibilities and virtually all of its 
personnel assigned to it as a bureau in the MDNR. The Attorney General 
of the State of Michigan, in a statement dated June 13, 1996, certified 
to the following:

    It is my opinion 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 upon a review of this information, as well as a review of the 
NPDES program documents submitted in support of Michigan's original 
(1973) request for EPA approval, EPA preliminarily concluded on March 
28, 1997, that the Executive Orders did not substantially revise the 
State of Michigan's Section 402 NPDES permitting program and that any 
revisions resulting from the executive orders should be approved. This 
conclusion was based on two factors.
    First, none of the statutes or rules upon which EPA authorized 
Michigan's NPDES permitting program changed as a result of the 
Executive Orders. Instead, the Executive Orders simply changed the 
people or entities responsible for carrying out the various functions 
set forth within these statutes and rules.
    Second, as described in the October 24, 1996, letter from MDEQ to 
EPA, the Director of MDEQ has ``directed that any MDEQ staff not in 
compliance with the federal requirements [governing conflict of 
interest set forth at 40 CFR 123.45(c)] are not permitted to approve 
permits, nor any portion of permits.'' Moreover, this directive will be 
incorporated into MDEQ's internal delegation letters and department 
policies. Finally, the Director of MDEQ will require all individuals 
that he appoints to decide administrative appeals of NPDES permits to 
certify that they comply with the CWA conflict of interest 
requirements. Consequently, Michigan's NPDES program assures compliance 
with conflict of interest requirements for NPDES state programs.
    While not required to do so according to the State NPDES program 
regulations,

[[Page 61171]]

EPA chose to invite public comment concerning the Agency's preliminary 
determinations. Consequently, on March 28, 1997, EPA published a notice 
in the Federal Register of its preliminary determinations that the 
Executive Orders caused no substantial revisions to Michigan's NPDES 
program and that any revisions to Michigan's NPDES program that 
resulted from the Executive Orders should be approved. Additionally, 
EPA requested 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 
also indicated that it could conduct a public hearing, if there was 
significant public interest based on requests received. Finally, EPA 
stated that its preliminary decision only addressed, and EPA was only 
seeking comment on, the impact of the Executive Orders on Michigan's 
NPDES program.

II. Comments

    In response to the March 28, 1997, notice, EPA received comments 
from the Scio Residents for Safe Water and the Gelman Sciences Site 
Citizens Review Committee (``Scio Residents''). The Scio Residents 
allege that the individuals at MDEQ who are now responsible for making 
permitting decisions have ``compromised independence,'' a ``pro 
business agenda,'' and are attempting to ``implement[] blatantly anti-
environmental policies without substantive public involvement or 
notice.'' However, as noted above, none of the statutes or rules upon 
which EPA authorized Michigan's NPDES permitting program changed as a 
result of the Executive Orders and so Michigan continues to have the 
legal authority and obligation to issue NPDES permits which are 
consistent with the Clean Water Act. The fact that there may be 
different people--with allegedly ``compromised independence'' or 
different ``agendas'' or ``policies''--who are responsible for 
exercising that authority and fulfilling that obligation as a result of 
the Executive Orders is not a basis for disapproving of any revisions 
resulting from those Executive Orders. Of course, EPA would have the 
authority to withdraw program approval pursuant to 40 CFR 123.63 if, as 
a result of any changes caused by the Executive Orders, Michigan 
repeatedly issues NPDES permits which do not conform with the 
requirements of the Clean Water Act. However, that is not at issue in 
this matter.
    In addition to the comments from the Scio Residents, EPA also 
received comments which were jointly submitted by the National Wildlife 
Federation and the Michigan United Conservation Clubs (NWF and MUCC). 
NWF and MUCC argue that ``EPA's 1993 approval of Michigan's General 
Permit Program was illegal'' because, prior to approving of Michigan's 
General Permit Program, EPA allegedly violated its own regulations and 
past practices ``(1) by failing to have a complete State program 
submission before approving Michigan's General Permit Program; (2) by 
failing to provide public notice of and comment on the proposed 
approval; and (3) by failing to hold a public hearing.''
    EPA believes that allegations about the unlawfulness of previous 
agency actions are not relevant to a pending agency matter, except to 
the extent that EPA proposes to take allegedly unlawful actions in the 
pending agency matter. In response to the first allegation of unlawful 
action, EPA continues to believe that neither the CWA nor NPDES State 
program regulations require comprehensive review and ``reapproval'' of 
the entire underlying NPDES program each time the Agency approves a 
modification to such a program. EPA regulations establish procedures 
for identification (both by EPA and interested persons) and review of 
any allegation of failure by a State to comply with NPDES State program 
requirements. See 40 CFR 123.64(b)(1). In the specific matter currently 
before the Agency, namely, the effect of the Executive Orders on the 
Michigan's program, the Agency believes that comprehensive review and 
``reapproval'' is unnecessary. See National Wildlife Federation v. 
Adamkus, 936 F.Supp. 435, 440-41, 444 (W.D. Mich. 1996) (upholding 
EPA's decision, in interpreting comparable statutory and regulatory 
provisions pertaining to EPA's review of revisions to State Section 404 
wetland permitting programs, that EPA need not perform a comprehensive 
review of an entire underlying State program when approving a 
modification to such program). Instead, as was made clear in the March 
28, 1997, notice, the issues in the present matter are: (1) Whether the 
Executive Orders caused substantial revisions to Michigan's NPDES 
program; (2) whether any revisions to Michigan's NPDES program that 
resulted from the Executive Orders should be approved; and (3) whether 
the Executive Orders have had any impact on EPA approval of the 
modification to the Michigan NPDES program recognizing the State's 
authority to issue general permits.
    On the other two issues identified by the commentors, the 
opportunity for public comment and the opportunity for a public 
hearing, EPA did provide an opportunity for public comment in this 
matter (and this notice responds to those comments) and an opportunity 
for the public to request a public hearing (although MWF and MUCC did 
not specifically request a public hearing in this matter). As described 
below, EPA does not believe that a public hearing is necessary based 
upon the comments received.
    NWF and MUCC also raised a number of comments in which they claim 
that EPA has not fulfilled certain commitments it allegedly made in its 
August 16, 1994 ``Unopposed Motion to Stay Briefing'' and in subsequent 
status reports filed in National Wildlife Federation et al. v. Browner, 
et al., No. 94-3309, a case which is currently pending in the United 
States Court of Appeals for the 6th Circuit. NWF and MUCC argue that, 
because the Agency notified the 6th Circuit that today's notice and 
comment proceedings might resolve NWF's and MUCC's concerns, and 
because NWF and MUCC believe the proceedings do not address their 
concerns, EPA has failed to fulfill a commitment it made to the court. 
EPA disagrees that it has failed to fulfill its commitment to the 6th 
Circuit. EPA explained to the court that these proceedings might 
resolve NWF's and MUCC's concerns. EPA's inability to satisfy NWF's and 
MUCC's concerns is not ``failure'' of the Agency, but merely continuing 
disagreement between EPA and the two groups. Based on comprehensive 
review of Michigan's public participation procedures (a copy of which 
is included in the administrative record for today's action), as well 
as review of the conflict of interest provisions applicable to States 
authorized to administer the NPDES program, the Agency believes that 
the Michigan program satisfies the applicable public participation and 
conflict of interest requirements.
    NWF's and MUCC's final comment was that EPA should not approve of 
the revisions resulting from the Executive Orders because ``the primary 
decision maker in contested case proceedings, the Director of the 
[MDEQ], has engaged in illegal ex parte communications about a 
contested case currently pending a decision,'' allegedly in violation 
of 40 CFR 124.78(b)(1). NWF and MUCC also argue that the Michigan 
Attorney General had an obligation to certify that the laws of Michigan 
are adequate to prohibit such ex parte communications. However, the 
prohibition on ex parte communications at 40 CFR 124.78(b)(1) applies 
only to EPA and to proceedings before EPA. Nothing in EPA's NPDES State 
program

[[Page 61172]]

regulations at 40 CFR part 123 requires that States authorized to 
administer the NPDES program prohibit such ex parte communications. 
Consequently, the allegation that the Director of MDEQ might be 
engaging in ex parte communications about a contested case, or the 
concern that the Michigan Attorney General has not certified that the 
laws of Michigan adequately prohibit such ex parte communications, are 
not sufficient bases for disapproving of any revisions to Michigan's 
NPDES program resulting from the Executive Orders.
    The Scio Residents requested that EPA provide a public hearing on 
this matter. NWF and MUCC did not specifically request a public hearing 
in this matter (although, as noted above, NWF and MUCC did criticize 
EPA for not holding a public hearing in 1993 prior to approving of 
Michigan's General Permit Program). EPA is required to hold a public 
hearing under 40 CFR 123.62(b)(2) if a proposed revision is substantial 
and if there is significant public interest in holding a hearing based 
upon requests for a hearing received by EPA.
    As noted above, EPA has determined that none of the statutes or 
rules upon which EPA authorized Michigan's NPDES permitting program 
changed as a result of the Executive Orders. Instead, the Executive 
Orders simply changed the people or entities responsible for carrying 
out the various functions set forth within these statutes and rules. 
Consequently, EPA does not believe that the revisions to Michigan's 
NPDES program resulting from the Executive Orders are substantial. 
Moreover, EPA only received two sets of comments: one set from the Scio 
Residents and a second set that was jointly submitted by NWF and MUCC; 
and only the Scio Residents specifically requested a hearing. Thus, EPA 
does not believe that there is sufficient public interest in this 
matter to hold a public hearing. Finally, neither set of comments 
explained why a public hearing was necessary or would be helpful in 
resolving the question of whether EPA should approve of any revisions 
to Michigan's NPDES program resulting from the Executive Orders. 
Consequently, EPA is not providing for a public hearing.
    Finally, EPA notes that the Michigan Environmental Council (MEC), 
in a letter to EPA dated June 14, 1996, raised questions regarding the 
impact of Michigan Public Act 132 of 1996 on Michigan's NPDES program. 
EPA is addressing those questions separately and EPA's approval of the 
modifications resulting from the Executive Orders in this proceeding 
does not express any viewpoint on those questions.

III. Regulatory Assessment Requirements

A. 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 waived review of EPA 
action on State NPDES programs .

B. 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.
    EPA's approval of any revisions to Michigan's NPDES program 
resulting from the Executive Orders contains 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 
merely recognizes an internal reorganization of an existing approved 
NPDES State program; and this determination does 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, this determination 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 EPA's determination to approve of any revisions to Michigan's 
NPDES program resulting from the Executive Orders merely recognizes an 
internal reorganization of an existing approved NPDES State program, 
EPA's determination contains no regulatory requirements that might 
significantly or uniquely affect small governments.

C. 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 NPDES 
program resulting from the Executive Orders will not have a significant 
impact on a substantial number of small entities.
    The basis for the certification is that EPA's approval simply 
results 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. This approval 
will not affect the substantive regulatory requirements under existing 
State law to which small entities are already subject. Additionally, 
approval of the NPDES program modification will not impose any new 
burdens on small entities.

D. Paperwork Reduction Act

    This approval contains no requests for information and consequently 
is not

[[Page 61173]]

subject to the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

IV. EPA's Final Determination

    EPA, after review and consideration of all the information 
submitted by Michigan and the comments received, has determined that 
the revisions to Michigan's NPDES program resulting from the Executive 
Orders should be approved. Moreover, EPA has determined that the 
revisions are not substantial.

    Dated: October 1, 1997.
David A. Ullrich,
Acting Regional Administrator.
[FR Doc. 97-29622 Filed 11-13-97; 8:45 am]
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