[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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