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

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 233

[FRL–5918–7]

Approval of Modifications to

Michigan’s Assumed Program To

Administer the Section 404 Permitting

Program Resulting From the

Reorganization of the Michigan

Environmental Agencies

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Notice of approval.

SUMMARY: Notice is hereby given that

the United States Environmental

Protection Agency (EPA) approves of

the modifications of Michigan’s

assumed Clean Water Act Section 404

(Section 404) permitting program which

resulted from Michigan Executive Order

1995–18 which reorganized Michigan’s

environmental agencies.

EFFECTIVE DATE: November 14, 1997.

FOR FURTHER INFORMATION CONTACT:

Kevin Pierard, Chief, Watersheds and

Non-Point Source Programs Branch,

Water Division, U.S. Environmental

Protection Agency, 77 West Jackson

Boulevard, Chicago, Illinois 60604,

(312) 886–4448.

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

the Federal Register, with the exception of a

Clean Air Act State Implementation Plan

published on November 6, 1997 at 62 FR

59995.

I. Background

The State of Michigan assumed

Federal Clean Water Act Section 404

permitting authority on October 16,

1984. Procedures for revision of State

programs at 40 CFR 233.16 require that

EPA review any revisions to state

assumed Section 404 programs,

determine whether such revisions are

substantial, and approve or disapprove

the revisions.

On November 25, 1994, EPA

approved of revisions to Michigan’s

Section 404 program resulting from

Executive Order 1991–31, which

transferred the responsibilities and

authorities of the Michigan Department

of Natural Resources (MDNR) to the

Director of a new MDNR. On July 3,

1995, Michigan Governor John Engler

signed Executive Order 1995–18

(Executive Order), which elevated the

former Environmental Protection

Bureau of MDNR to full departmental

status as the Michigan Department of

Environmental Quality (MDEQ),

effective October 1, 1995. MDEQ

retained all of its environmental duties,

functions and responsibilities and

virtually all of the personnel formerly

assigned to it as a bureau in the MDNR.

In addition, certain other environmental

duties, functions and responsibilities of

the Law, Geographical Survey and Land

and Water Management Divisions were

transferred to MDEQ, as was the

authority to make decisions regarding

administrative appeals in those matters

under its purview.

The Attorney General, in a statement

dated June 13, 1996, statement, 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

Section 404 program documents

submitted in support of Michigan’s

original (1983) request for EPA approval

and the materials submitted by

Michigan and considered by EPA in

approving of revisions to Michigan’s

Section 404 program on November 25,

1994, EPA preliminarily concluded that

the Executive Order did not

substantially revise the State of

Michigan’s Section 404 program and

that any revisions resulting from the

Executive Order should be approved.

This preliminary determination was

based upon the fact that none of the

statutes or rules which comprise

Michigan’s Section 404 program

changed as a result of the Executive

Order and MDEQ retained virtually all

of the personnel formerly assigned to it

as a bureau in MDNR.

Although none of the statutes or

regulations which comprise Michigan’s

program changed, there was one

additional matter that EPA considered

before making its preliminary

determination. Specifically, the

Executive Order provides that the

Director of MDEQ now decides

administrative appeals of wetland

permitting decisions, rather than the

Michigan Natural Resources

Commission. However, this change does

not affect the Michigan Section 404

program’s ‘‘area of jurisdiction, scope of

activities regulated, criteria for review of

permits, public participation, or

enforcement capability.’’ 40 CFR

233.16(d)(3). Consequently, EPA did not

view this change to be a substantial

revision. Moreover, EPA preliminarily

concluded that this revision should be

approved because it is not inconsistent

with anything in the Clean Water Act or

its implementing regulations.

While not required to do so according

to the State Section 404 program

regulations, 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 Order

caused no substantial revisions to

Michigan’s Section 404 program and

that any revisions to Michigan’s Section

404 program that resulted from the

Executive Order should be approved.

EPA also indicated that it might 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 Order on

Michigan’s Section 404 program.

II. Comments

In response to the March 28, 1997,

notice, EPA received comments from

three commenters: the Tip of the Mitt

Watershed Council, the East Michigan

Environmental Action Council, and the

Michigan Environmental Council. The

commenters all raised the same two

issues. First, the commenters noted that

the Executive Order transferred

authority to hold hearings and make

findings of fact and render decisions on

contested Section 404 permits from the

Natural Resources Commission, a public

body that was subject to Michigan’s

Open Meetings Act, to the Director of
61174 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations

the MDEQ, who in turn delegated that

authority to the MDEQ Office of

Administrative Hearings, an entity that

is not a public body and therefore is not

subject to Michigan’s Open Meetings

Act.

The public participation requirements

for state Section 404 programs are set

forth at 40 CFR 233.32–34. The only

‘‘Open Meetings Act’’ type requirements

in those regulations is at 40 CFR 233.33,

which requires that state Section 404

programs provide an opportunity for

public hearings at which the public

must be allowed an opportunity to

submit oral and written statements or

data concerning a permit application or

draft general permit. Michigan clearly

continues to comply with this

requirement. See Section 281.708 of the

Michigan Compiled Laws. Nothing in

the state Section 404 wetland program

regulations requires that adjudicatory

hearings on contested permits be open

to the public. Consequently, the fact that

these types of hearings may not

necessarily be open to the general

public in Michigan is not a basis for

disapproving of the revisions resulting

from the Executive Order.

We further note that Michigan did not

represent in its original 1983 program

submission, and EPA in reviewing and

approving of that original program

submission did not find, that Michigan

was relying on the Michigan Open

Meetings Act to demonstrate that it had

authority to comply with the federal

public participation requirements.

Rather, Michigan cited to Sections 8 and

10 of its Wetlands Protection Act,

Section 5 of its Water Resources Act,

Section 6 of its Inland Lakes and

Streams Act, and Sections 41–42 of its

Administrative Procedures Act, to

demonstrate that it had such authority.

None of these statutory provisions were

affected by the Executive Order.

Consequently, any changes resulting

from the Executive Order pertaining to

the applicability or inapplicability of

the Michigan Open Meetings Act do not

in any way constitute changes in

Michigan’s approved Section 404

program.

The second issue raised by the

commenters is that, under the Executive

Order, the Chief Administrative Law

Judge for the Office of Administrative

Hearings who decides certain contested

Section 404 permits is appointed by the

Director of the MDEQ and so allegedly

will not be capable of exercising

decisionmaking authority independent

of the Director of the MDEQ. However,

there is nothing in the state Section 404

program regulations pertaining to

administrative appeals of permit

decisions. Consequently, the possibility

that the Chief Administrative Law Judge

may not be entirely independent of the

Director of the MDEQ is not a basis for

disapproving of the revisions resulting

from the Executive Order.

Of course, if as a result of the changes

to the administrative appeals process

resulting from the Executive Order,

Michigan repeatedly issues Section 404

permits which do not conform with the

requirements of the Clean Water Act,

this might serve as a basis for

withdrawal of Michigan’s Section 404

program under 40 CFR 233.53. EPA

notes that it currently has pending

before it a February 4, 1997, petition to

withdraw Michigan’s Section 404

program that was filed by the Michigan

Environmental Council (MEC) which

alleges, among other things, that

Michigan is in fact repeatedly issuing

such permits in part because of the

changes to the administrative appeals

process. EPA is separately investigating

the allegations in that petition to

determine whether cause exists to

commence withdrawal proceedings.

EPA, in approving of the revisions to

Michigan’s Section 404 program

resulting from the Executive Order, is in

no way expressing any opinion on the

question of whether withdrawal

proceedings should commence in light

of the allegations in the MEC petition.

Moreover, EPA is not expressing any

opinion on questions which MEC

separately raised in a letter dated June

14, 1996, regarding the impact of

Michigan’s Public Act 132 of 1996 on

Michigan’s Section 404 program.

Instead, EPA is addressing those

questions separately.

In a related comment, one commenter

argued that, under the Executive Order,

the Director may ‘‘appoint an individual

within or outside the [MDEQ]’’ to

decide certain administrative appeals in

which the Director has been involved.

The commenter also noted that there is

no statutory definition of the

individuals eligible for service in this

role and so ‘‘it is conceivable that an

individual with a personal or financial

interest in the project at issue could be

appointed to decide an appeal.’’

However, in contrast to 40 CFR

123.25(c), there is nothing in either the

Clean Water Act or in EPA’s

implementing regulations governing

conflicts of interest in state Section 404

programs. Consequently, the possibility

that such a conflict could arise is not a

sufficient basis to disapprove of the

revisions to Michigan’s Section 404

program resulting from the Executive

Order. Moreover, although not

necessary to our decision, we note that

Michigan has represented to EPA that

all decisionmakers appointed by the

Director will be required to sign a

‘‘Conflict of Interest Certification’’

certifying that they ‘‘do not now receive,

nor have ever received, any income

directly or indirectly from any person

who holds a permit, has applied for a

permit, or who is subject to an

enforcement order issued pursuant to or

under the authority of [the Clean Water

Act].’’ Consequently, the possibility that

an appointed decisionmaker might have

a financial conflict of interest is

extremely remote.

Finally, all three commenters stated

that they believed that the revisions

resulting from the Executive Order were

substantial and so requested a public

hearing. EPA is required to provide an

opportunity for a public hearing under

40 CFR 233.16(d)(3) if a proposed

revision is substantial. 40 CFR

233.16(d)(3) provides that ‘‘substantial

revisions include, but are not limited to,

revisions that affect the area of

jurisdiction, scope of activities

regulated, criteria for review of permits,

public participation, or enforcement

capability.’’ As described above, none of

the statutes or rules upon which EPA

authorized Michigan’s Section 404

program changed as a result of the

Executive Order. Instead, the Executive

Order 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 Section 404 program

resulting from the Executive Order are

substantial.

Moreover, in light of the fact that EPA

only received three sets of comments

which addressed virtually identical

issues, EPA does not believe that there

is sufficient public interest in this

matter to hold a public hearing. Finally,

none of the 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 Section 404

program. Consequently, EPA is not

providing for a public hearing.

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
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,