[Federal Register Volume 62, Number 60 (Friday, March 28, 1997)]
[Proposed Rules]
[Pages 14844-14846]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-7819]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 123
[FRL-5803-3]
Modification of Michigan's Approved Program to Administer the
National Pollutant Discharge Elimination System Permitting Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of proposed approval; request for public comment.
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SUMMARY: This document announces EPA's intention to approve
modification of Michigan's approved National Pollutant Discharge
Elimination System (NPDES) permitting program, specifically, to
explicitly and formally recognize that a recent internal reorganization
of Michigan's environmental agencies is consistent with the minimum
requirements of the State NPDES program regulations. EPA invites public
comment on its approval of any modification of the State program that
may have resulted from the reorganization.
DATES: Comments on this document must be received in writing by April
28, 1997.
ADDRESSES: Written comments on this document may be submitted to Jo
Lynn Traub, Director, Water Division, Attn: Michigan NPDES
Modification, U.S. Environmental Protection Agency, 77 West Jackson
Boulevard, Chicago, Illinois 60604. In the alternative, EPA will accept
comments electronically. Comments should be sent to the following
Internet E-mail address: chaiken.eugene@epamail.epa.gov. 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.
FOR FURTHER INFORMATION CONTACT: Eugene Chaiken, Chief, NPDES Support
and Technical Assistance Branch at the EPA address noted above or
telephone at (312) 886-0120.
A copy of the supporting information for today's notice is
available for review at: EPA, Region 5, 77 West Jackson Boulevard, 16th
Floor, Chicago, Illinois; Library of Michigan, Government Documents
Section, 717 West Allegan, Lansing, Michigan; Olson Library, Northern
Michigan University, Harden Circle Drive, Marquette, Michigan; and the
Detroit Public Library Main Branch, Sociology and Economics Department,
5201 Woodward Avenue, Detroit, Michigan. To arrange for access to the
docket materials in Chicago, call (312) 886-0120 between 8 a.m. and
4:30 p.m. (Central time)(Monday-Friday); in Lansing, call (517) 373-
9489 between 9 a.m. and 6 p.m. (Eastern time)(Monday-Saturday), and
between 12 p.m. and 4 p.m. (Eastern time)(Sunday); in Marquette, call
(906) 227-2260 for current library hours; and in Detroit, call (313)
833-1440 between 9:30 a.m. and 5:30 p.m. (Eastern time)(Tuesday,
Thursday-Saturday), and between 1 p.m. and 9 p.m. (Eastern
time)(Wednesday).
The supporting information for today's notice includes: copies of
Executive Orders 1991-31, 1995-4, and 1995-18 signed by the Governor of
Michigan on November 8, 1991, February 7, 1995, and July 31, 1995,
respectively; copies of the correspondence from Michigan to EPA dated
August 9, 1995 and January 19, 1996, regarding the effects of the
Executive Orders on Michigan's NPDES program; statements of the
Michigan Attorney General dated August 2, 1995, and June 13, 1996; an
October 24, 1996, letter from the Director of MDEQ regarding MDEQ's
compliance with Clean Water Act conflict of interest requirements;
NPDES program documents submitted in support of Michigan's original
(1973) request for EPA approval; a June 14, 1996, letter from the
Michigan Environmental Council to EPA regarding Michigan Public Act 132
of 1996; and EPA's preliminary finding of no substantial revisions and
preliminary approval of any revisions resulting from the Executive
Orders.
SUPPLEMENTARY INFORMATION: On October 17, 1973, EPA approved the
National Pollutant Discharge Elimination System (NPDES) permitting
program submitted by the State of Michigan pursuant to section 402 of
the
[[Page 14845]]
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.
On November 8, 1991, the Governor of Michigan issued Executive
Order 1991-31, intended to reorganize and consolidate functions and
responsibilities of the Michigan 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). Subsequently, the Governor issued additional Executive Orders
(Executive Orders 1995-4 and 1995-18) related to the organization,
functions, and responsibilities of the Michigan environmental agencies.
On May 21, 1993, Michigan submitted a modification to the approved
program seeking EPA recognition of the State's authority to issue NPDES
general permits. On November 29, 1993, EPA approved the modification.
The National Wildlife Federation and the Michigan United Conservation
Clubs filed a petition in the U.S. Court of Appeals for the Sixth
Circuit for judicial review of EPA's approval of the modification. By
joint motions of the parties, that litigation is currently stayed
while, among other things, EPA publishes today's notice and,
ultimately, takes final action on it.
EPA announces today that it has made preliminary determinations
that Executive Orders 1991-31, 1995-4 and 1995-18 did not make any
substantial changes in Michigan's approved NPDES program, and that any
changes to the Michigan NPDES program resulting from these Executive
Orders should be approved. While not required to do so according to the
State NPDES program regulations, EPA invites public comment concerning
the Agency's conclusions, specifically, its preliminary determination
that the Executive Orders caused no substantial revisions to Michigan's
NPDES program, as well as EPA's preliminary decision to approve any
revisions to Michigan's NPDES program that resulted from the Executive
Orders. Additionally, EPA requests 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 may conduct a public hearing, if there is
significant public interest based on requests received.
EPA notes that the Michigan Environmental Council (MEC) filed an
administrative petition requesting that EPA commence proceedings to
withdraw Michigan's NPDES program by letter dated June 14, 1996. The
petition requests that EPA initiate proceedings to withdraw its
approval of Michigan's NPDES program 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
petition, EPA is conducting an informal investigation into the
allegations in the petition. Specifically, EPA has initiated a separate
process to review Michigan's Public Act 132 of 1996 and its potential
impact on Michigan's federally delegated and authorized programs,
including NPDES, to determine whether there is cause to commence
withdrawal proceedings.
EPA's preliminary decision only addresses, and this notice is only
seeking comment on, the impact of the Executive Orders noted above on
Michigan's NPDES program. EPA's preliminary decision does not address
the issues raised by MEC regarding Public Act 132 of 1996. EPA intends
to address those issues in the course of the separate informal
investigations into the allegations in the petition to commence
withdrawal proceedings. Although EPA does not seek and does not intend
to respond on the merits to comments regarding Public Act 132 of 1996
in this proceeding, EPA will consider such public comments in
responding to the Petition to commence withdrawal proceedings. Any such
comments should be sent separately to John Bernstein, Attn: Michigan
Petition to Withdraw, U.S. Environmental Protection Agency, Mail Code:
WN-16J, 77 West Jackson Boulevard, Chicago, Illinois 60604.
Regulatory Assessment Requirements
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 exempted EPA action
on State NPDES programs from OMB review.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 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.
If EPA finally determines that any revisions to Michigan's NPDES
program resulting from the Executive Orders should be approved, EPA's
determination 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. Instead, EPA's determination would
merely recognize an internal reorganization of an existing approved
NPDES State program. EPA has determined that such a determination 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, such a
determination would not be 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
[[Page 14846]]
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 would merely recognize an internal
reorganization of an existing approved NPDES State program, EPA has
determined that such a determination would contain 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. Sec. 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.
Secs. 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 Executive Orders would 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
NPDES 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 NPDES program modification would not impose any new
burdens on small entities.
Paperwork Reduction Act
This preliminary determination contains no requests for information
and consequently is not subject to the Paperwork Reduction Act, 44
U.S.C. 3501 et seq.
Dated: March 14, 1997.
David A. Ullrich,
Acting Regional Administrator.
[FR Doc. 97-7819 Filed 3-27-97; 8:45 am]
BILLING CODE 6560-50-P
