14844 Federal Register / Vol. 62, No. 60 / Friday, March 28, 1997 / Proposed Rules

entities. Small entities include small

businesses, small not-for-profit

enterprises, and government entities

with jurisdiction over populations of

less than 50,000.

The SIP approvals under section 110

and subchapter I, part D of the Act do

not create any new requirements, but

simply approve requirements that the

State is already imposing. Therefore,

because the Federal SIP approval does

not impose any new requirements, I

certify that this does not have a

significant impact on small entities

affected. Moreover, due to the nature of

the Federal-State relationship under the

Act, preparation of a regulatory

flexibility analysis would constitute

Federal inquiry into the economic

reasonableness of State action. The Act

forbids EPA to base its actions

concerning SIPs on such grounds. See

Union Electric Co. v. EPA, 427 U.S. 246,

256–66 (1976); 42 U.S.C. 7410(a)(2).

Section 202 of the Unfunded

Mandates Reform Act of 1995

(’’Unfunded Mandates Act’’) (signed

into law on March 22, 1995) requires

that the EPA prepare a budgetary impact

statement before promulgating a rule

that includes a Federal mandate that

may result in expenditure by State,

local, and tribal governments, in

aggregate, or by the private sector, of

$100 million or more in any one year.

Section 203 requires the Agency to

establish a plan for obtaining input from

and informing, educating, and advising

any small governments that may be

significantly or uniquely affected by the

rule.

Under section 205 of the Unfunded

Mandates Act, the EPA must identify

and consider a reasonable number of

regulatory alternatives before

promulgating a rule for which a

budgetary impact statement must be

prepared. The EPA must select from

those alternatives the least costly, most

cost-effective, or least burdensome

alternative that achieves the objectives

of the rule, unless the EPA explains why

this alternative is not selected or the

selection of this alternative is

inconsistent with law.

Because this proposed rule is

estimated to result in the expenditure by

State, local, and tribal governments or

the private sector of less than $100

million in any one year, the EPA has not

prepared a budgetary impact statement

or specifically addressed the selection of

the least costly, most cost-effective, or

least burdensome alternative. Because

small governments will not be

significantly or uniquely affected by this

rule, the EPA is not required to develop

a plan with regard to small

governments. This rule imposes no

additional regulatory burden.

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Intergovernmental

relations.

Authority: 42 U.S.C. 7401–7671(q).

Dated: March 14, 1997.

David A. Ullrich,

Acting Regional Administrator.

[FR Doc. 97–7818 Filed 3–27–97; 8:45 am]

BILLING CODE 6560–50–P

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.

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
Federal Register / Vol. 62, No. 60 / Friday, March 28, 1997 / Proposed Rules 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
14846 Federal Register / Vol. 62, No. 60 / Friday, March 28, 1997 / Proposed Rules

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.

§ 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 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

40 CFR Part 233

[FRL–5803–4]

Modification of Michigan’s Assumed

Program to Administer Section 404

Permitting Program

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Notice of proposed approval;

request for public comment.

SUMMARY: This document announces

EPA’s intention to approve modification

of Michigan’s assumed Clean Water Act

Section 404 (Section 404) 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 Section 404 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

today’s notice may be submitted to Jo

Lynn Traub, Director, Water Division,

Attn: Michigan Section 404 Program

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

Email address:

pierard.kevin@epamail.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:

Kevin Pierard, Chief, Watersheds and

Non-Point Source Programs Branch, at

the EPA address noted above or

telephone at (312) 886–4448.

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

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)

886–4448 between 8 a.m. and 4:30 p.m.

(Central time); in Lansing, call 517–373–

9489 between 9 a.m. and 6 p.m. on

Mondays through Saturdays and

between 12 p.m. and 4 p.m. on Sundays

(Eastern time); in Marquette, call 906–

227–2260 between 8 a.m. and 12 a.m. on

Mondays through Thursdays, between 8

a.m. and 9 p.m. on Fridays, and between

10 a.m. and 6 p.m. on Sundays (Eastern

time); and in Detroit, call 313–833–1440

between 9:30 a.m. and 5:30 p.m. on

Tuesdays and Thursdays through

Saturdays, and between 1 p.m. and 9

p.m. on Wednesdays (Eastern time).

The supporting information for

today’s notice includes: a copy of

Executive Order 1995–18 signed by the

Governor of Michigan on July 31, 1995;

copies of the correspondence from

Michigan to EPA dated January 19,

1996, regarding the effects of the

executive order on Michigan’s Section

404 program; a statement of the

Michigan Attorney General dated June

13, 1996; Program documents submitted

to EPA in support of Michigan’s original

(1983) assumption request; the materials

submitted by Michigan and considered

by EPA in approving revisions to

Michigan’s Section 404 program on

November 25, 1994; May 20, 1994,

comments submitted by the National

Wildlife Federation and Michigan

United Conservation Club to EPA which

EPA is treating as a petition to withdraw

Michigan’s Section 404 program; a June

14, 1996, letter from the Michigan

Environmental Council to EPA

regarding Michigan Public Act 132 of

1996; a February 4, 1997, letter and

attached report from the Michigan

Environmental Council to EPA

requesting that EPA withdraw

Michigan’s Section 404 program; and

EPA’s preliminary finding of no

substantial modification and

preliminary approval of any revisions

resulting from Executive Order 1995–18.

SUPPLEMENTARY INFORMATION: 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 July 31, 1995 Governor Engler of

Michigan issued Executive Order 1995–

18, which elevated the former

Environmental Protection Bureau of the