Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations 61175

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 Section 404 programs from OMB

review.

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 Section 404 program

resulting from the Executive Order

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 Section 404 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 Section 404

program resulting from the Executive

Order merely recognizes an internal

reorganization of an existing assumed

State Section 404 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 Section 404

program resulting from the Executive

Order 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 assumed Section 404 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 Section 404 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

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 Section 404 program

resulting from the Executive Order

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. 97–29623 Filed 11–13–97; 8:45 am]

BILLING CODE 6560–50–P

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.

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,
61176 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations

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.
Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations 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 costbenefit 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 costeffective 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 costeffective 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.
61178 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations

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]

BILLING CODE 6560–50–P