Michigan: Final Authorization of State Hazardous Waste Management Program

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.

g 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

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

h 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.''

ect 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 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

ganization 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

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:

vided

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

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

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

ates, and informing, educating, and advising

small governments on compliance with the regulatory requirements.

Because

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