[Federal Register Volume 60, Number 9 (Friday, January 13, 1995)]
[Rules and Regulations]
[Pages 3095-3098]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-823]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 271
[FRL-5138-9]
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
the reorganization of the Michigan Department of Natural Resources
(MDNR) by Executive Order 1991-31.
EFFECTIVE DATE: January 13, 1995.
FOR FURTHER INFORMATION CONTACT: Ms. Judy Feigler, RCRA Regulatory
Development Section, U.S. EPA, Region 5, 77 W. Jackson (HRM-7J),
Chicago, Illinois 60604, or telephone (312) 886-4179.
SUPPLEMENTARY INFORMATION:
A. Background
On October 21, 1994, 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, 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); [[Page 3096]] and November 30, 1993 (58 FR 51244, October 1,
1993). Michigan's Program Description dated June 30, 1984, and addenda
thereto dated June 30, 1986; September 12, 1988; July 31, 1990; and
August 10, 1992, 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 indicated that the Site Review Board
(SRB) also had authority to approve or deny construction permit
applications.
On November 8, 1991, the Governor of Michigan issued Executive
Order 1991-31 (EO 1991-31). EO 1991-31, which became effective on
September 2, 1993, provides that:
All the statutory authority, power, duties, functions, and
responsibilities of the Commission of Natural Resources and the
Department of Natural Resources * * * and of the director of the
Department of Natural Resources and of the agencies, boards and
commissions contained therein * * * are hereby transferred to the
director of a new Michigan Department of Natural Resources, by a
Type II transfer, as defined by Section 3 of Act No. 380 of the
Public Acts of 1965, being Section 16.103 of the Michigan Compiled
Laws.
EO 1991-31, Section I(A)(1).
EO 1991-31 also affected the SRB. EO 1991-31 also provides that:
* * * the functions, duties, and responsibilities of the Site
Review Boards * * * are transferred by a Type II transfer * * * and
a Site Review Board shall be advisory to the director of the new
Michigan Department of Natural Resources.
EO 1991-31, Section III(C)(9). The Director of the MDNR now has the
authority to approve or deny construction permit applications.
Pursuant to EPA's request, on March 10 and August 18, 1994,
Michigan submitted documents to EPA that were necessary for EPA to
determine the impact of EO 1991-31 upon the authorized State hazardous
waste management program. The documents consisted of a modified Program
Description, an addendum to the Attorney General's Statement, and an
addendum to the Memorandum of Agreement between the State and EPA
outlining the policies, responsibilities and procedures under which the
program is administered. Michigan in its submittal indicated that there
had been no substantive changes in Michigan's hazardous waste
management program as a result of EO 1991-31. Rather, according to
Michigan, EO 1991-31 resulted in some internal reorganization of the
MDNR.
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 271.21(b). On October 21,
1994, 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 two
locations in Michigan.
B. Comments
In response to the October 21, 1994, notice, EPA received comments
from the National Wildlife Federation (NWF), who disagreed with EPA's
proposed approval of Michigan's hazardous waste management program
revisions. A summary of NWF's comments and EPA's response is provided
below:
In its first comment, NWF claims that Michigan has failed to
demonstrate that its reorganized program complies with the minimum
Federal requirements concerning public participation of Section 7004(b)
of RCRA. The commenter noted that in changing the role of the SRB from
a decision-making body to an advisory body, EO 1991-31 transferred the
permit decision-making power to the Director of the MDNR. According to
the commenter, the MDNR Director, unlike the former SRB, is not subject
to Michigan's Open Meetings Act. The commenter states that public
access to monitor the Director is limited by the reorganization, and
Michigan's public has no right to observe and attend the meetings at
which key permitting decisions are made. Therefore, the commenter
believes that the ``new MDNR'' fails to encourage public participation.
EPA does not agree that this change represents a change in the
public participation requirements of Michigan's hazardous waste program
that is inconsistent with RCRA Section 7004(b)(2). Michigan, in its
submittal to EPA of information on March 10 and August 18, 1994,
demonstrated that EO 1991-31 did not substantially alter the public
participation processes or affect the authorized State program's
equivalence or consistency to the Federal program. The State's public
participation provisions include the following: notice of the State's
intent to issue a permit through publication in major local newspapers
of general circulation; broadcasts of such notice over local radio
stations; written notice to certain State and local governmental
agencies; at least a 45-day public comment period; and an informal
public hearing if one is requested during the comment period (see
Michigan Administrative Code Sections R299.9513 and R 299.9514). The
change in the applicability of the State's Open Meetings Act did not
constitute a change in the State hazardous waste program, since the
State's Open Meetings Act has never been relied upon by the State to
meet the Federal guidelines for public participation (see 40 CFR 271.14
and 124). RCRA Section 3006(b) requires States to maintain equivalency
to the Federal program; however, States can also pass legislation that
is more stringent than the Federal programs. The Michigan Open Meetings
Act would fall in that category since it is a State law that goes
beyond the Federal requirements for public participation. Consequently,
the change in the applicability of the State's Open Meetings Act to the
MDNR Director does not represent a change in Michigan's hazardous waste
management program. Any direct comments on the Michigan Open Meetings
Act should be referred to the State of Michigan.1
\1\It should be noted, though, that public involvement in RCRA
activities is receiving increased visibility. On June 2, 1994, EPA
published in the Federal Register (59 FR 28680-28711) a proposed
rule that would require earlier and more meaningful public
participation in the RCRA permitting process. This Agency rulemaking
is anticipated to be finalized the summer of 1995. When this rule
becomes finalized, States will be required to be authorized for
these activities. However, for the time being, the State of Michigan
is meeting all the current requirements for public participation
under the Federal RCRA program.
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The commenter also suggested that EO 1991-31 affected the public
participation requirements, since it changed the manner in which the
State develops administrative rules implementing Michigan's hazardous
waste program. The Director of the MDNR now establishes the
administrative rules by which the program is administered rather than
the Michigan Natural Resources Commission (MNRC). The commenter stated
that the Director of the MDNR, unlike MNRC, is not subject to
Michigan's Open Meetings Act and therefore the Director can make final
decisions on administrative rules pertaining to the hazardous waste
management program in closed meetings and the substance of those
meetings need not be recorded. The commenter suggested that this
represents a significant change in the way the State develops
administrative [[Page 3097]] rules for Michigan's hazardous waste
management program.
EPA does not agree that this apparent change in the manner in which
administrative rules are developed represents a change in Michigan's
hazardous waste management program that is inconsistent with RCRA
Section 7004(b). A State's Federally authorized hazardous waste
management program consists of the statutes and rules which govern the
State's program. EPA has no role to play in overseeing or dictating how
those statutes and rules are developed. Instead, EPA's role is to
determine whether the statutes and rules which comprise the program
comply with minimum Federal requirements for authorized programs (e.g.,
providing public notice, hearings, and comment periods on permit
decisions). If the State desires to change those statutes or rules, EPA
has no role in determining the manner in which those statutes or rules
are changed, so long as the State submits the proposed changes to EPA
for review. Consequently, this change in the manner in which the State
develops administrative rules is outside the scope of EPA's review of
the State's hazardous waste management program under 40 CFR 271.
The second comment made by NWF is that, pursuant to 40 CFR
271.21(c), whenever a State transfers all or part of the approved
hazardous waste management program from the approved State agency to
any other State agency, the new agency is not authorized to administer
the program until approved by EPA. The commenter claimed that EO 1991-
31 consolidated various departments and agencies into a ``new'' MDNR,
since the Director of the MDNR has assumed, under a Type III transfer,
all the powers, duties and authorities which were formerly allocated to
the Hazardous Waste Management Planning Committee (HWMPC), as well as
all powers (including sole power to issue permits), duties and
authority formerly allocated to the SRB, under a Type II transfer. The
commenter also claimed that this reorganization is a ``transfer''
within the purview of 40 CFR 271.21(c), because the ``old MDNR'' and
the ``new MDNR,'' as well as the SRB, HWMPC, and the Director of the
``new MDNR'' are each separate ``agencies'' within the meaning of 40
CFR 271.21(c). The commenter also claimed that both the State courts
and the State of Michigan have indicated that the reorganization
constitutes a revision and transfer.
EPA has determined that the revisions to Michigan's program are
consistent with the requirements of RCRA and its implementing
regulations. Based on the information available to us, EPA has
determined that the reorganization of Michigan's hazardous waste
management program resulting from EO 1991-31 constitutes a program
revision requiring appropriate EPA review and approval. However, EPA
has determined that the reorganization of the MDNR resulting from EO
1991-31 does not constitute a transfer to another agency for the
purposes of 40 CFR 271.21(c).
EPA recognizes that the Michigan Supreme Court has held that EO
1991-31 created a ``new'' MDNR. Dodak v. Engler, 443 Mich. 560 (1993).
However, the Michigan Attorney General, in a letter dated November 8,
1993, has stated that the Executive Order did not create a new agency.
In any event, the question of whether MDNR remained the same agency or
whether it became ``any other State agency'' as a result of 1991-31 is
not at issue in this determination. The MDNR, as described above, has
been the approved State agency for the implementation of Michigan RCRA
hazardous waste management program, both before and after the Executive
Order. Whether MDNR is considered to be a ``new'' agency under State
law is not controlling with respect to whether there has been a
transfer of authority from an ``approved State agency to any other
State agency.'' Instead, it is EPA's regulations which are controlling
in this issue.
EPA's regulations at 40 CFR 271.21(c) do not provide clear guidance
on whether the reorganization and consolidation of environmental
programs accomplished by EO 1991-31 constitutes a ``transfer'' of
authority requiring prior EPA approval. The preamble to the 1986 State
hazardous waste program regulations similarly fails to provide any such
guidance. (See 51 FR 33712, September 22, 1986). However, the 1980
preamble to the final National Pollutant Discharge Elimination System
State program rule, in addressing language at 40 CFR 123.62(c), which
is similar to that at 40 CFR 271.21(c), stated:
One commenter requested that there be no formal EPA review of
nominal changes in the structure and responsibilities of State
agencies administering an approved program. It was not the intent of
the proposal nor is it of these final regulations to require EPA
review in such cases [''nominal changes'' in State agencies]. Only
when controlling Federal or State statutory or regulatory authority
is modified or supplemented, or when the State proposes to transfer
all or part of a program from an approved State agency to another
State agency may EPA approval be necessary. Changes solely to the
internal structure of an approved State agency, with no changes to
the overall authority of the agency, do not require EPA approval.
45 FR 33290, 33384 (May 19, 1980).
In addition, EPA's guidance to States on developing applications
for revisions to their authorized State programs, the State
Authorization Manual (SAM) (OSWER Directive 9540.00-9A, October 1990)
is also consistent with the above preamble language. The SAM, on page
2-2, states that: ``. . . changes within the internal structure of the
approved State agency, with no changes in the overall authority of the
agency, do not require EPA approval.'' EPA interprets the language of
40 CFR 271.21(c) as not applying to changes within the internal
structure that do not substantively change the overall authority of the
agency. The controlling authorities under State law pertaining to the
RCRA hazardous waste management program were not affected by EO 1991-
31, nor were the overall functions or structure of the Michigan
hazardous waste management program substantially changed. Therefore,
EPA does not view the reorganization of the MDNR resulting from EO
1991-31 as a transfer under the purview of 40 CFR 271.21(c).
In regards to the Michigan HWMPC, that department has never been
considered to be part of Michigan's authorized State hazardous waste
program. The HWMPC was established by Section 8A of Michigan Public Act
64 for the purpose of developing a State hazardous waste management
plan. The plan was adopted by the Michigan Natural Resources Commission
on January 1, 1992. Abolishment of the HWMPC by EO 1991-31 and transfer
of the all of its statutory authority, powers, and duties to the MDNR
did not impact the State's hazardous waste management program, since
RCRA does not require States to develop such a plan.
In regards to the SRB, EPA does not agree that the transfer of
permit decision-making authority from the SRB to the Director of the
``new'' MDNR constitutes a transfer between agencies under the purview
of 40 CFR 271.21(c). As described above, the prior EPA approval
requirement in 40 CFR 271.21(c) applies in situations where such
restructuring or consolidation impacts the controlling authorities by
which a State implements the RCRA hazardous waste management program.
EO 1991-31 did not affect the State's controlling authorities by which
the State implements the RCRA hazardous waste management program, but
rather it transferred decision-making responsibilities within the
authorized State hazardous waste management [[Page 3098]] program.
Consequently, EPA does not view the change in roles of the SRB and the
MDNR Director as a transfer of authorities between agencies under the
purview of 40 CFR 271.21(c).
The third comment made by NWF is not related in any way to EO 1991-
31. The commenter suggested that Michigan's program has wrongfully
failed to eliminate the exemption for municipal waste combustion ash
addressed in Chicago v. Environmental Defense Fund, 114 S.Ct. 1588
(1994). According to the commenter, Michigan's reorganized RCRA program
is therefore not in conformance with the Federal RCRA program, and
authority for it should be withdrawn pursuant to 40 CFR 271.22. In the
present matter, EPA requested that Michigan submit information to EPA
pursuant to 40 CFR 271.21(d) on whether any revisions occurred in
Michigan's Federally authorized hazardous waste management program as a
result of EO 1991-31. EPA has not requested information pertaining to
any other issues regarding Michigan's hazardous waste management
program. Therefore, EPA is limiting its review to the effects of EO
1991-31.
EPA appreciates the comments received on these matters, has
forwarded them to Michigan, and will consider them in the context of
EPA's ongoing oversight of Michigan's hazardous waste management
program. If, in the course of its ongoing oversight, EPA determines
that additional program revisions have occurred, EPA will take the
appropriate steps as set forth at 40 CFR 271.21 to review and approve
or disapprove of the revisions.
C. Decision
I conclude that Michigan's application for final authorization
meets all of the statutory and regulatory requirements established by
RCRA. Accordingly, Michigan is granted final authorization to operate
its hazardous waste program as revised. Michigan now 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.
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.
Certification Under the Regulatory Flexibility Act
Pursuant to the provisions of 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, nor will it impose any new
burdens on small entities. This rule, therefore, does not require a
regulatory flexibility analysis.
Paperwork Reduction Act
Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., Federal
agencies must consider the paperwork burden imposed by any information
request contained in a proposed rule or a final rule. This rule will
not impose any information requirements upon the regulated community.
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: January 4, 1995.
Valdas V. Adamkus,
Regional Administrator.
[FR Doc. 95-823 Filed 1-12-95; 8:45 am]
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