[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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