[Federal Register Volume 62, Number 220 (Friday, November 14, 1997)]
[Rules and Regulations]
[Pages 61175-61178]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-29624]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[FRL-5918-8]


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

AGENCY: Environmental Protection Agency.

ACTION: Notice of final determination on application of Michigan for 
final authorization.

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SUMMARY: Notice is hereby given that the United States Environmental 
Protection Agency (U.S. EPA) approves the revisions to the State of 
Michigan's authorized hazardous waste management program resulting from 
Michigan Executive Order 1995-18.

EFFECTIVE DATE: November 14, 1997.

FOR FURTHER INFORMATION CONTACT: Mr. Timothy O'Malley, U.S. EPA, State 
Programs and Authorization Section, Waste Pesticides and Toxics 
Division, 77 W. Jackson Blvd. (DR-7J), Chicago, Illinois 60604, or 
telephone (312) 886-6085.

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.

A. Background

    On March 28, 1997, EPA published in the Federal Register a notice 
announcing the preliminary determination to approve the State of 
Michigan's hazardous waste management program, as revised, pursuant to 
Section 3006(b) of the Resource Conservation and Recovery Act (RCRA) 
and 40 CFR 271.21(b)(4).
    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,

[[Page 61176]]

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(b).
    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); January 
13, 1995 (60 FR 3095, January 13, 1995); 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; August 18, 1994; and September 6, 1995, which 
were 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 also indicated that the Site Review Board (SRB) 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.'' 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 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 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).
    Based upon review of the documents submitted by Michigan, EPA made 
a preliminary determination to approve Michigan's hazardous waste 
management program, as revised, pursuant to 40 CFR 271.21(b). On March 
28, 1997, EPA published a notice in the Federal Register announcing 
EPA's proposed decision. The notice also stated that the proposed 
decision would be subject to public review and comment, and announced 
the availability of Michigan's application for public inspection at 
three locations in Michigan as well as the EPA regional office in 
Chicago.
    As was noted in the March 28, 1997, Federal Register notice, the 
EPA 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. EO 1995-18 predated passage of Act 132. EPA's March 
28, 1997, proposed action only addressed and sought comment on the 
impact of EO 1995-18 noted above on Michigan's RCRA program. 
Accordingly, today'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 is addressing 
the issues raised by MEC regarding Public Act 132 of 1996 separately.

B. Comments

    No adverse comments were received by EPA during the public comment 
period.

C. Decision

    I conclude that Michigan's application for final authorization of 
revisions resulting from EO 1995-18 meets the necessary requirements 
under RCRA. Accordingly, Michigan is granted final authorization to 
operate its hazardous waste program as revised by EO 1995-18. Michigan 
has responsibility for permitting treatment, storage, and disposal 
facilities within its borders and carrying out other aspects of the 
RCRA program described in its revised program application, subject to 
the limitations of the HSWA. Michigan also has 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.

D. Incorporation by Reference

    EPA incorporates by reference authorized State programs in 40 CFR 
part 272 to provide notice to the public of the scope of the authorized 
program in each State. Incorporation by reference of these revisions to 
the Michigan program will be completed at a later date.

[[Page 61177]]

Compliance With Executive Order 12866

    The Office of Management and Budget has exempted this rule from the 
requirements of Section 6 of Executive Order 12866.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. 
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, the 
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. Before promulgating an EPA rule for 
which a written statement is needed, section 205 of the UMRA generally 
requires the EPA to identify and consider a reasonable number of 
regulatory alternatives and adopt the least costly, most cost-effective 
or least burdensome alternative that achieves the objectives of the 
rule. The provisions of section 205 do not apply when they are 
inconsistent with applicable law. Moreover, section 205 allows the EPA 
to adopt an alternative other than the least costly, most cost-
effective or least burdensome alternative if the Administrator 
publishes with the final rule an explanation why that alternative was 
not adopted. Before the 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 the EPA regulatory proposals with significant Federal 
intergovernmental mandates, and informing, educating, and advising 
small governments on compliance with the regulatory requirements.
    Today's rule contains no Federal mandates for State, local or 
tribal governments or the private sector. The Act excludes from the 
definition of a ``Federal mandate'' duties that arise from 
participation in a voluntary Federal program, except in certain cases 
where a ``Federal intergovernmental mandate'' affects an annual Federal 
entitlement program of $500 million or more that are not applicable 
here. The Michigan request for approval of revisions to its authorized 
hazardous waste program is voluntary and imposes no Federal mandate 
within the meaning of the Act. Rather, by having its hazardous waste 
program approved, the State will gain the authority to implement the 
program within its jurisdiction, in lieu of the EPA, thereby 
eliminating duplicative State and Federal requirements. If a State 
chooses not to seek authorization for administration of a hazardous 
waste program under RCRA Subtitle C, RCRA regulation is left to the 
EPA. In any event, the EPA has determined that this rule does not 
contain a 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. The EPA does not 
anticipate that the approval of the Michigan hazardous waste program 
referenced in today's notice will result in annual costs of $100 
million or more. The EPA's approval of State programs generally may 
reduce, not increase, compliance costs for the private sector since the 
State, by virtue of the approval, may now administer the program in 
lieu of the EPA and exercise primary enforcement. Hence, owners and 
operators of treatment, storage, or disposal facilities (TSDFs) 
generally no longer face dual Federal and State compliance 
requirements, thereby reducing overall compliance costs. Thus, today's 
rule is not subject to the requirements of section 202 and 205 of the 
UMRA.
    The EPA has determined that this rule contains no regulatory 
requirements that might significantly or uniquely affect small 
governments. The Agency recognizes that small governments may own and/
or operate TSDFs that will become subject to the requirements of an 
approved State hazardous waste program. However, such small governments 
which own and/or operate TSDFs are already subject to the requirements 
in 40 CFR parts 264, 265, and 270 and are not subject to any additional 
significant or unique requirements by virtue of this program approval. 
Once the EPA authorizes a State to administer its own hazardous waste 
program and any revisions to that program, these same small governments 
will be able to own and operate their TSDFs under the approved State 
program, in lieu of the Federal program.

Certification Under the Regulatory Flexibility Act

    The EPA has determined that this authorization will not have a 
significant economic impact on a substantial number of small entities. 
The EPA recognizes that small entities may own and/or operate TSDFs 
that will become subject to the requirements of an approved State 
hazardous waste program. However, since such small entities which own 
and/or operate TSDFs are already subject to the requirements in 40 CFR 
parts 264, 265, and 270, this authorization does not impose any 
additional burdens on these small entities. This is because the EPA's 
authorization would result in an administrative change (i.e., whether 
the EPA or the State administers the RCRA Subtitle C program in that 
State), rather than result in a change in the substantive requirements 
imposed on small entities. Once the EPA authorizes a State to 
administer its own hazardous waste program and any revisions to that 
program, these same small entities will be able to own and operate 
their TSDFs under the approved State program, in lieu of the Federal 
program. Moreover, this authorization, in approving a State program to 
operate in lieu of the Federal program, eliminates duplicative 
requirements for owners and operators of TSDFs in that particular 
State.
    Therefore, the EPA provides the following certification under the 
regulatory Flexibility Act, as amended by the Small Business Regulatory 
Enforcement Fairness Act. Pursuant to the provision at 5 U.S.C. 605(b), 
I hereby certify that this authorization will not have a significant 
economic impact on a substantial number of small entities. This 
authorization effectively approves the Michigan program to operate in 
lieu of the Federal program, thereby eliminating duplicative 
requirements for handlers of hazardous waste in the State. It does not 
impose any new burdens on small entities. This rule, therefore, does 
not require a regulatory flexibility analysis.

Submission to Congress and the General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, the EPA submitted a report 
containing this rule and other required information to the U.S. Senate, 
the U.S. House of Representatives, and the Comptroller General of the 
General Accounting Office prior to publication of the rule in today's 
Federal Register. This rule is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

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.

[[Page 61178]]

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 recordkeeping 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: October 1, 1997.
David A. Ullrich,
Acting Regional Administrator.
[FR Doc. 97-29624 Filed 11-13-97; 8:45 am]
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