Federal Register / Vol. 73, No. 148 / Thursday, July 31, 2008 / Notices 44721 

ENVIRONMENTAL PROTECTION 

AGENCY 

[FRL–8699–5] 

Notice of Availability of Final NPDES 

General Permits for Noncontact 

Cooling Water Discharges in the 

Commonwealth of Massachusetts 

(Including Both Commonwealth and 

Indian Country Lands) and the State of 

New Hampshire 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice of Availability of Final 

NPDES General Permits MAG250000 

and NHG250000. 

SUMMARY: The Director of the Office of 

Ecosystem Protection, EPA-New 

England, is today providing notice of 

availability of the final National 

Pollutant Discharge Elimination System 

(NPDES) general permits for noncontact 

cooling water (NCCW) discharges to 

certain waters of the Commonwealth of 

Massachusetts (including both 

Commonwealth and Indian country 

lands) and the State of New Hampshire. 

The general permits replace the 

NCCW general permits which expired 

on April 25, 2005. The general permits 

establish permit eligibility conditions, 

Notice of Intent (NOI) requirements, 

effluent limitations, standards, 

prohibitions, and management practices 

for facilities discharging NCCW. Owners 

and/or operators of facilities discharging 

NCCW, including those currently 

authorized to discharge under the 

expired general permits, are required to 

submit an NOI to be covered by one of 

the general permits to both EPA-New 

England and the appropriate State 

agency. EPA and the State will review 

the NOI and the facility will receive 

written notification from EPA stating 

whether permit coverage and 

authorization to discharge under one of 

the general permits is approved. The 

eligibility requirements for coverage 

under the general permits are discussed 

in detail under Part 3 of the permits. 

The reader is strongly urged to go to that 

section of the general permits to 

determine eligibility. The general 

permits do not cover new sources as 

defined at 40 CFR 122.2. 

DATES: The general permits shall be 

effective on July 31, 2008, and they will 

expire at midnight, five (5) years from 

the last day of the month preceding the 

effective date. 

ADDRESSES: The required notification 

information to obtain permit coverage is 

provided for in the general permits. This 

information shall be submitted to both 

EPA and the appropriate State. 

Notification information may be sent via 

USPS, email or fax to EPA at EPARegion 1, Office of Ecosystem Protection 

(CMU), One Congress Street, Boston, 

Massachusetts, 02114–2023; e-mail 

address NCCWGP@EPA.GOVRegion01; 

or fax number (617) 918–2188. 

Notification information shall be 

submitted to the appropriate State 

agency at the addresses listed in the 

general permits, Part 5.9. See also 

Appendix 6, State Agency Notification 

Requirements and Mailing Addresses. 

FOR FURTHER INFORMATION CONTACT: 

Additional information concerning the 

final general permits may be obtained 

between the hours of 9 a.m. and 5 p.m. 

Monday through Friday, excluding 

holidays, from Austine Frawley at 

Frawley.Austine@EPA.GOV or (617) 

918–1065. 

SUPPLEMENTARY INFORMATION: The 

general permits may be viewed over the 

Internet at the EPA Web site http:// 

www.epa.gov/region1/npdes/ 

nccwgp.html. To obtain a paper copy of 

the general permits, please contact Ms. 

Frawley using the contact information 

provided above. A reasonable fee may 

be charged for copying requests. 

Dated: July 24, 2008. 

Ira W. Leighton, 

Acting Regional Administrator, Region 1. 

[FR Doc. E8–17599 Filed 7–30–08; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[FRL–8697–3] 

Findings of Informal Review of the 

State of Michigan’s Approved Clean 

Water Act Section 404 Program 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice. 

SUMMARY: This Notice announces EPA’s 

findings from its informal review of the 

state of Michigan’s approved Clean 

Water Act (CWA) Section 404 program. 

EPA finds that, at this time, formal 

program withdrawal proceedings should 

not be initiated for Michigan’s approved 

CWA Section 404 program. EPA’s Final 

Report of this review is now available. 

EPA has identified several deficiencies 

in Michigan’s approved CWA Section 

404 program; those are identified in the 

Final Report along with corrective 

actions which Michigan has proposed to 

take and a schedule for implementing 

the corrective actions. 

FOR FURTHER INFORMATION CONTACT: Sue 

Elston, Watersheds and Wetlands 

Branch, at the EPA address noted above 

or by telephone at (312) 886–6115. The 

Final Report containing EPA’s findings 

is available via the Internet at the 

following location: http://www.epa.gov/ 

region5/water/wshednps/notices.htm. In 

addition, a hard copy of the information 

supporting today’s notice is available for 

review at EPA Region 5, 77 West 

Jackson Boulevard, 16th floor, Chicago, 

Illinois and Library of Michigan, 702 

Kalamazoo Street, Lansing, Michigan. 

To arrange for access to the docket 

materials in Chicago call (312) 886–6115 

or in Lansing call (517) 373–1300. 

SUPPLEMENTARY INFORMATION: 

I. Background 

On October 16, 1984, EPA approved 

the regulatory permitting program that 

the state of Michigan had submitted 

pursuant to the requirements and 

guidelines contained in Subsections 

404(g) and 404(h) of the CWA. 33 U.S.C. 

1344(g) and (h) (See 49 FR 38947, 

October 2, 1984.) In that notice of 

approval, EPA noted that the 

Administrator was required to approve 

a program submitted by a state pursuant 

to Subsection 404(g) of the CWA unless 

that program does not meet the 

requirements of Subsection 404(h) of the 

CWA. EPA stated in the notice that it 

had determined the program submitted 

by the state of Michigan met those 

statutory requirements. The components 

of the approved CWA Section 404 

program are stated at 40 CFR 233.70. 

The Michigan state agency authorized 

in 1984 to administer the approved 

CWA Section 404 program was the 

Department of Natural Resources. Later 

the state of Michigan reorganized its 

agencies and transferred authority to 

administer the approved CWA Section 

404 program to the Department of 

Environmental Quality (MDEQ). EPA 

approved this transfer on November 14, 

1997 (62 FR 61173, November 14, 1997). 

On February 4, 1997 EPA received a 

request to review claims that Michigan’s 

approved CWA Section 404 program 

had serious deficiencies and to either 

insist Michigan take specific remedial 

measures or withdraw Michigan’s 

administration of CWA Section 404. 

EPA decided to treat the request as a 

petition to withdraw program approval 

and to informally review all aspects of 

Michigan’s approved CWA Section 404 

program. The EPA Regional 

Administrator of Region 5 informed the 

Director of MDEQ of the commencement 

of the CWA Section 404 program review 

in a letter dated January 22, 1998. 

II. Overview of EPA Review of 

Michigan’s CWA Section 404 Program 

The scope of EPA’s informal review 

included MDEQ permit processing, 


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decision making, and enforcement of 

Section 404 permits; and a 

comprehensive review of the adequacy 

of Michigan’s current legal authorities 

which establish Michigan’s CWA 

Section 404 program. EPA’s review 

included materials submitted by MDEQ 

between June 1999 and the date of this 

Notice. Those materials included an 

updated program description (40 CFR 

233.11); a new Michigan Attorney 

General statement confirming that state 

laws and regulations provide adequate 

authority to administer the CWA 

Section 404 program and addressing the 

other subjects mentioned at 40 CFR 

233.12; and a compilation of all current, 

relevant Michigan laws and regulations. 

During its program review EPA 

reviewed hundreds of permitting files, 

enforcement files, and citizen complaint 

files that MDEQ generated between 1995 

and 1999. Additionally, EPA reviewed 

MDEQ written decisions issued in 

contested permitting cases between 

January 1994 and early 1999. The 

contested case decisions represent final 

agency action by MDEQ in matters 

involving individual permits processed 

under the approved CWA Section 404 

program. Also as part of the program 

review, EPA consulted with offices of 

the U.S. Fish and Wildlife Service 

(USFWS) and the U.S. Army Corps of 

Engineers (Corps) which interact with 

MDEQ during its administration of the 

program. Finally, during January and 

May of 1999, EPA held four availability 

sessions to receive comments from 

interested persons. 

In November 2002, EPA completed its 

preliminary review and analysis of all 

materials and concluded that the review 

findings did not warrant a 

recommendation to the Administrator to 

initiate formal program withdrawal 

proceedings, but did warrant corrective 

actions by the state of Michigan. EPA’s 

preliminary findings and the necessary 

corrective actions were identified in the 

document titled Results of the U.S. 

Environmental Protection Agency 

Region 5 Review of Michigan 

Department of Environmental Quality’s 

Section 404 Program (Preliminary 

Report). EPA announced its preliminary 

findings in a Federal Register Notice 

published on January 7, 2003 (68 FR 

772, January 7, 2003). EPA invited 

public comment, for a period of sixty 

(60) days, on that notice and the 

Preliminary Report. In a November 7, 

2003 letter to the EPA Regional 

Administrator of Region 5, the Director 

of MDEQ responded to the content of 

EPA’s Preliminary Report and proposed 

a series of corrective actions to be 

undertaken by the state in order to 

achieve and maintain full consistency 

with the CWA Section 404 program 

requirements. EPA completed its review 

of the submitted public comments, 

communicated further with Michigan, 

and performed additional analysis both 

as prompted by public comments and as 

considered appropriate by EPA. EPA 

has also completed its review and 

analysis of the corrective actions 

proposed by MDEQ. EPA’s final 

findings are presented in the document 

titled—Results of the U.S. 

Environmental Protection Agency 

Region 5 Review of Michigan 

Department of Environmental Quality’s 

Section 404 Program (Final Report). 

EPA found both strengths and 

deficiencies in Michigan’s legal 

authorities establishing the approved 

CWA Section 404 program and in the 

program’s administration by MDEQ. 

EPA has concluded that program 

withdrawal proceedings should not be 

initiated at this time. However, this 

Notice and the Final Report are not 

EPA’s final action on the petition to 

withdraw. Within 36 months of the date 

of this notice, EPA will review all 

corrective actions completed by 

Michigan and determine whether 

initiating formal withdrawal 

proceedings is warranted. A summary of 

the major program deficiencies 

identified by EPA and the corrective 

actions proposed by the state follow; a 

more detailed analysis is contained in 

the Final Report. EPA considers the 

schedule for completion of the 

corrective actions to be reasonable and 

has adopted it in the Final Report. 

III. Deficiencies in Michigan’s CWA 

Section 404 Program and Proposed 

Corrective Actions 

A. CWA Jurisdiction 

EPA had concerns that the scope of 

jurisdiction provided by Michigan law 

was not as broad as federal CWA 

Section 404 jurisdiction. One major 

concern was that Michigan had not 

completed its wetland inventories and 

Michigan law did not extend 

jurisdiction over non-contiguous 

wetlands in any county in Michigan that 

had a population of less than 100,000 

residents unless a wetland inventory 

was performed. Michigan made the 

commitment to perform wetland 

inventories in all counties with less 

than 100,000 residents. In January 2007, 

Michigan certified that MDEQ had 

completed the statewide wetland 

inventory. 

During EPA’s program review the U.S. 

Supreme Court issued two decisions 

which address jurisdiction over waters 

of the United States under the CWA. 

Solid Waste Agency of Northern Cook 

County v. U.S. Army Corps of Engineers, 

531 U.S. 159 (2001) (SWANCC); 

Rapanos v. United States, 547 U.S. 715 

(2006). EPA considered those decisions 

when reviewing Michigan’s CWA 

Section 404 program. 

EPA completed its review of the 

jurisdictional scope of Michigan’s 

approved CWA Section 404 program, 

considering the fact Michigan 

completed its statewide wetland 

inventory, the recent U.S. Supreme 

Court decisions and additional factors 

outlined in the Final Report. EPA finds 

the scope of jurisdiction provided by 

Michigan law is at least as broad as the 

scope of federal CWA Section 404 

jurisdiction. 

B. Exemptions From CWA Jurisdiction 

Michigan law appears to exempt a 

broader range of activities than does the 

CWA under Subsection 404(f), 

including exemptions for discharges 

occurring as part of certain agricultural 

activities; discharges related to drain 

creation and improvement; and 

discharges associated with iron and 

copper mining tailings basins. There is 

no federal exemption for these 

activities. MDEQ has agreed to seek 

amendment of Part 303, the state’s 

Wetlands Protection Act, to: (1) Limit 

the exemptions available under M.C.L. 

Section 324.30305(2)(e) to areas of 

established agricultural or silvicultural 

operations in accordance with federal 

law; (2) delete the exemption of 

agricultural drainage under M.C.L. 

Section 324.30305(2)(j); (3) amend 

M.C.L. Section 324.30305(2)(h) to delete 

mention of straightening, widening or 

deepening; (4) eliminate the exemption 

for iron and copper mining tailings 

basins under M.C.L. Section 

324.30305(2)(o); and (5) delete 

exemption for utility and maintenance 

activities found at M.C.L. Sections 

324.30305(2)(l) and (m) to the extent 

these activities are regulated under 

CWA Section 404. MDEQ has 

committed to initiating these corrective 

actions within 6 months of the date of 

this Notice and completing these 

corrective actions within 36 months of 

the date of this Notice. 

C. Minor Permits Under Part 301 

EPA is concerned that Part 301’s 

provisions for minor permits do not 

ensure that each minor permit category 

will cause only minimal adverse 

environmental effects when performed 

separately and will have only minimal 

cumulative adverse effects on the 

environment as required under the 

federal law. MDEQ has agreed to 

promulgate a new Part 301 rule 


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requiring the consideration of 

cumulative impacts before new minor 

permit categories are established. MDEQ 

has agreed to promulgate the rule within 

24 months of the date of this Notice. 

D. CWA 401(b)(1) Guidelines 

EPA is concerned that Michigan law 

fails to incorporate the CWA Section 

404(b)(1) Guidelines into its permit 

decision making process. One element 

of EPA’s concern is the absence from 

Michigan law of a clear prohibition on 

the issuance of permits that will 

jeopardize the continued existence of a 

threatened or endangered (T & E) 

species or their critical habitat, as 

required by the CWA Section 404(b)(1) 

Guidelines. During the course of this 

program review, MDEQ developed 

administrative rules under Part 303 

which have addressed some of EPA’s 

concerns regarding the application of a 

feasible and prudent alternatives 

analysis, water dependency analysis, 

and burdens of proof. MDEQ has now 

proposed to implement a more 

comprehensive corrective action by 

promulgating administrative rules for 

Parts 301 and 303 that will incorporate 

the federal Section 404(b)(1) Guidelines 

by reference. MDEQ has agreed to 

promulgate these rules within 24 

months of the date of this Notice. 

E. Public Participation in Permitting 

Process 

A state that is administering a CWA 

Section 404 program must provide an 

opportunity for public participation in 

the state’s enforcement process by 

fulfilling the requirements of either 40 

CFR 233.41(e)(1) or (e)(2). While MDEQ 

has stated that it will comply with 40 

CFR 233.41(e)(2), EPA finds that 

Michigan’s laws and rules do not clearly 

require the state to observe two of the 

three public participation requirements 

of 40 CFR 233.41(e)(2). To correct this 

situation, MDEQ has agreed to work 

with EPA to revise the EPA–MDEQ 

Memorandum of Agreement to contain 

two additional commitments: (1) MDEQ 

will not oppose intervention by any 

citizen when permissive intervention in 

a state enforcement action is authorized 

by Michigan law, and (2) MDEQ will 

ensure that all proposed settlement 

agreements of enforcement actions filed 

in state court are publicly noticed with 

a 30-day public comment period 

provided. 

F. General Administration of CWA 

Section 404 Program 

The program review found that in 

general, MDEQ is doing a good job of 

administering its CWA Section 404 

program, however, EPA did identify 

several problems. EPA identified the 

need for MDEQ to modify its procedures 

for providing public notice of certain 

permit-related actions to make these 

procedures consistent with 40 CFR 

233.32. EPA alerted MDEQ that it needs 

to ensure that interested persons receive 

public notices of permitting actions 

with enough time to provide comment, 

and that it needs to ensure that all 

adjacent property owners receive copies 

of the public notices. During this 

program review, MDEQ addressed the 

first problem by developing an internetbased system that makes public notices 

more readily available to the public. 

MDEQ has addressed the second 

problem by providing public notices to 

all adjacent landowners, not just 

riparian landowners. 

G. Endangered Species Act 

EPA found that coordination under 

the federal Endangered Species Act 

(ESA) is effective for larger projects. Yet 

our review found that it was not clear 

that minor permit projects were being 

effectively screened for potential 

impacts on T & E species. MDEQ has 

worked with the USFWS and EPA to 

develop procedures for screening minor 

and walk-in permits for the potential to 

impact T & E species and their critical 

habitat. These procedures will be 

finalized within 6 months of the date of 

this Notice. 

H. Enforcement 

The program review concludes that 

MDEQ has maintained a satisfactory 

enforcement program. MDEQ has 

designed the enforcement program to 

identify un-permitted activities and 

initiates enforcement responses in a 

timely manner. Overall, Michigan’s 

enforcement program achieves 

appropriate injunctive relief through 

wetland restoration and wetland 

mitigation and seeks and obtains 

adequate penalties. 

IV. Summary of Comments Received 

and EPA Response 

While not required to do so according 

to the 404 state program regulations at 

40 CFR part 233, EPA chose to invite 

public comment on EPA’s January 2003 

notice and Preliminary Report. In 

response to the notice (68 FR 772), EPA 

received 26 comment letters or e-mail 

responses. Commenters included two 

federal agencies (USFWS and the U.S. 

Forest Service (USFS)); the Grand 

Traverse Band of Ottawa and Chippewa 

Indians; two county drain 

commissioners; two representatives of 

the Michigan Drain Code Coalition; a 

member of the Indian Mission 

Conservation Club; and 19 individual 

citizens. In addition, the Michigan 

Wetland Action Coalition representing 

52 conservation organizations provided 

extensive comments. 

The majority of commenters agreed 

with the findings of EPA’s Preliminary 

Report and were supportive of the 

proposed corrective actions. Four 

commenters stated that Michigan 

should continue to administer the CWA 

Section 404 program since they felt the 

state program was more stringent than 

the federal program and the state was 

doing a better job of protecting the Great 

Lakes than would the federal 

government if it administered the 

program under federal law. A summary 

of the comments received and EPA 

responses follow. 

A. Federal Agency Comments 

The USFWS provided comments on a 

number of issues addressed in the 

program review. With regard to 

Michigan’s scope of jurisdiction, the 

USFWS expressed concern over the lack 

of a mechanism to ensure that the state’s 

program will remain as rigorous as any 

program the Corps would administer, 

even as changes occur to CWA Section 

404 jurisdiction, and to the federal 

Section 404 program, over time. The 

only remedy that EPA can identify to 

ensure that Michigan’s CWA Section 

404 program remains in compliance 

with the standards set forth at 40 CFR 

233.1 is EPA’s periodic review of the 

state’s program and EPA’s ongoing 

review of individual permits and cases. 

The USFWS continues to have 

concerns with Michigan’s Part 303 

which provides that if MDEQ does not 

approve or disapprove a permit 

application within 90 days the 

application shall be considered 

approved. The USFWS asserts that this 

time constraint unduly limits the 

amount of time that federal agencies 

have to review projects. The USFWS 

would prefer to have the 90 day time 

frame deleted from state law or amend 

the law to make it explicit that if a 

permit is issued pursuant to the 90 day 

timeframe, the permit is considered to 

have been issued under state law only, 

and is not a CWA Section 404 permit. 

EPA agrees that MDEQ’s 90 day time 

frame is not congruent with the time 

frames allowed under 40 CFR 233.50. 

However, EPA has concluded that, to 

date, MDEQ, EPA, and other reviewing 

federal agencies have been able to work 

to ensure that problems are resolved, or 

that a permit is denied, before the 90 

day deadline is reached. MDEQ asserts 

that it will ensure that any future 

permits issued by MDEQ due to the 

existence of the 90 day deadline, 

without confirmation of compliance 


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with the CWA 404(b)(1) Guidelines, will 

have the legal status of a state-only 

permit, and not a CWA Section 404 

permit. For this reason EPA does not 

find a corrective action is warranted. 

The USFWS commented that EPA 

needs to submit the informal program 

review and EPA’s review and approval 

of the state’s corrective actions to the 

consultation requirements of Section 7 

of the ESA. The USFWS argued that 

EPA is taking a federal action which 

imposes on EPA the obligation to 

formally consult with the USFWS 

pursuant to Section 7(a)(2) of the ESA, 

in order to ensure that these actions are 

not likely to jeopardize the continued 

existence of a listed species or the 

destruction or adverse modification of 

designated critical habitat. EPA 

disagrees with the USFWS’ position on 

this issue. We do not intend to enter 

into formal consultation with the 

USFWS pursuant to Section 7(a)(2) of 

the ESA. EPA does not consider its 

conduct of performing this informal 

program review and its agreements with 

Michigan on corrective actions the state 

will implement to be a ‘‘Federal action’’

which triggers ESA Section 7 

consultation. In March 2004, EPA 

shared its legal conclusions regarding 

the ESA Section 7 consultation issue 

with the East Lansing Field Office of the 

USFWS. EPA has emphasized that it is 

committed to working with USFWS and 

MDEQ to address concerns regarding 

whether the state’s administration of the 

CWA Section 404 program is potentially 

jeopardizing T & E species or their 

critical habitat. 

USFWS also expressed concerns that 

the MDEQ’s process for screening 

proposed projects to ensure that they 

will not jeopardize T & E species or 

their critical habitat is inadequate. The 

USFWS offered its cooperation to 

remedy the shortcomings it perceived in 

MDEQ’s review process. The USFWS 

also suggested that a Memorandum of 

Agreement between MDEQ, EPA and 

the USFWS be developed to address the 

issues the USFWS has raised with 

regard to T & E species issues. EPA will 

work with the USFWS and MDEQ on 

the development of a MOA to address 

these USFWS concerns. In addition, 

EPA, MDEQ and the USFWS have 

recently developed a new procedure for 

screening minor permit projects to 

ensure that impacts to T & E species are 

adequately assessed. Finally, other than 

the subjects discussed above, the 

USFWS commends the EPA’s review of 

Michigan’s CWA Section 404 program 

and Michigan’s cooperation during the 

review and subsequent development of 

corrective actions. 

The USFS indicated that it had 

concerns with how MDEQ is handling 

permitting on Wild and Scenic Rivers in 

Michigan. The USFS indicated that 

Michigan’s assumption of the CWA 

Section 404 program did not waive the 

need for federal review of applications 

involving discharges within 

components of the National Wild and 

Scenic Rivers System. The USFS 

indicated that there have been instances 

of MDEQ staff either issuing a permit for 

activities for which the USFS has made 

an adverse finding due to Wild and 

Scenic River concerns, or issuing 

modifications to permits after a Section 

7 determination was made by the USFS 

without coordinating with the USFS on 

the proposed modifications. The USFS 

requested EPA’s support in improving 

coordination between the USFS and 

MDEQ. The MOA between EPA and the 

state currently requires all public 

notices of CWA Section 404 permit 

applications for projects proposed in 

Wild and Scenic Rivers be sent to the 

appropriate federal agencies for review. 

EPA notes that provisions in the federal 

regulations for federal review of CWA 

Section 404 permit public notices does 

not require EPA to provide the USFS 

with copies of the public notices. 

However, MDEQ does send the USFS 

public notices for projects proposed on 

Wild and Scenic Rivers. In the past, the 

USFS has not provided EPA with any 

comments on public notices for 

proposed projects that may involve 

Wild and Scenic Rivers issues for EPA 

to include in the federal comment letter 

that EPA sends to MDEQ pursuant to 40 

CFR 233.50. EPA has informed the 

USFS that EPA is willing to include 

USFS comments which relate to CWA 

issues, in the federal comment letter 

EPA sends to MDEQ provided the USFS 

meets the time frames established by 40 

CFR 233.50. 

B. Public Comments 

With regard to the state’s scope of 

jurisdiction several commenters 

expressed the desire for greater 

protection over small and isolated 

wetlands. Several commenters wanted 

the state’s inventory of wetlands in 

counties with populations below 

100,000 expedited. Other commenters 

were skeptical that the inventories 

would be completed or believed that the 

inventories would be of little use. 

Finally, one comment indicated that 

amending the Michigan statute to 

address the jurisdictional issue would 

be a more timely and cost effective 

action. EPA acknowledges that 

amending the statute may be more cost 

effective, however, the state has already 

completed the inventories for the 

majority of the state and has committed 

to providing the necessary resources to 

complete the inventory during 2006. 

EPA continues to consider the 

performance of the wetland inventories 

to be an adequate corrective action. 

A number of commenters concurred 

with EPA’s findings that Michigan’s 

exemptions for drainage, farming and 

construction of tailings basins for iron 

and copper mining were less stringent 

than the federal regulations and 

supported EPA’s position that the 

statute needs to be amended. MDEQ has 

agreed to seek amendments to Part 303 

to make state exemptions as stringent as 

the federal exemptions. 

Several commenters supported the 

development of new rules to prescribe 

best management practices for certain 

utility work in wetlands. They also 

stated that if MDEQ could not provide 

enforcement of the best management 

practices, that the exemption found at 

M.C.L. Section 324.30305(l) and (m) 

should be deleted. MDEQ has agreed to 

limit these exemptions to activities not 

regulated under the CWA, to develop 

general permit categories to authorize 

the remainder of activities currently 

exempted, and to define best 

management practices for these types of 

utility crossings. 

With regard to permitting authority 

issues, one group of commenters 

concurred with the EPA’s concerns 

regarding Part 301 provisions for minor 

permits and agreed that rule changes 

were needed to ensure that cumulative 

adverse impacts will be considered 

before general permit categories are 

established. MDEQ has agreed to make 

the necessary rule changes. 

One group of commenters disagreed 

with EPA’s finding that the absence of 

an explicit recapture provision does not 

render the permitting program 

inadequate. EPA’s position continues to 

be that part 301 has provisions that are 

at least as stringent as the recapture 

clause of the CWA Section 404(f)(2) and 

that the absence of an explicit recapture 

provision in part 303 does not render 

the state’s CWA Section 404 permitting 

program inadequate because the strict 

application of the exemptions 

provisions in part 303 should prevent 

the need to rely on any type of recapture 

provision. 

One group of commenters agreed with 

EPA’s finding that there is a need to 

make sure that the Michigan permitting 

program is consistent with the Section 

404(b)(1) Guidelines. These same 

commenters were concerned about EPA 

and MDEQ’s contention that MDEQ can 

issue a state-only permit which may not 

adhere to the CWA Section 404(b)(1) 

Guidelines. These commenters felt that 


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the issuance of a state-only permit was 

confusing to the public and supports the 

notion that Michigan wetland permits 

are governed solely by Michigan law. 

EPA notes that Michigan permits are 

based on Michigan state law and agrees 

that the issuance of a state-only permit 

can be confusing in light of the fact that 

the Michigan program is supposed to be 

consistent with the CWA Section 404. It 

is EPA’s expectation that once the 

proposed corrective actions are 

implemented, the Michigan program 

will be consistent with the federal 

program and MDEQ no longer will feel 

compelled by circumstances to issue 

state-only permits, except in cases 

where the 90-day timeframe for 

approval or disapproval has lapsed and 

the permit will be a state-only permit. 

The federal regulations do, however, 

recognize that there may be cases when 

the state neither satisfies EPA’s 

objections nor denies the permit. In 

such an instance the regulations at 

233.50(j) state that the Corps shall 

process the permit application. 

A number of commenters criticized 

MDEQ’s enforcement efforts in general. 

Other commenters disagreed with EPA’s 

finding that MDEQ is adequately 

authorized to and is observing the 

federal requirements with regard to 

investigation of citizen complaints. 

Some commenters also expressed 

disagreement with EPA’s findings that 

MDEQ conducts an adequate wetland 

enforcement program. Commenters 

expressed concern that MDEQ issues 

after-the-fact permits too often, rather 

than take an enforcement action. 

Commenters also stated that they did 

not think that MDEQ was adequately 

monitoring permittees’ compliance with 

permit conditions. EPA agrees that an 

increase in MDEQ enforcement activity 

and monitoring of compliance with 

permit conditions would be beneficial 

to the resources and would strengthen 

Michigan’s permitting program. EPA 

finds, however, that MDEQ’s 

enforcement program as administered is 

adequate and effective. While EPA is 

not requiring that MDEQ implement any 

specific corrective actions with regard to 

its enforcement program, EPA has made 

a number of recommendations for 

improvement in the Final Report. EPA 

also notes that MDEQ is currently taking 

steps to increase the number of 

enforcement staff. 

Summary of Findings 

EPA’s informal review of Michigan’s 

CWA Section 404 program included 

consideration of all the information 

submitted by MDEQ and the comments 

received in response to the January 7, 

2003 Federal Register Notice. EPA has 

identified several deficiencies in 

Michigan’s CWA Section 404 program. 

In order to remedy these deficiencies, 

MDEQ has proposed certain corrective 

actions and a timetable for completion 

of these actions. EPA agrees that the 

state’s proposed corrective actions, once 

implemented, will address the 

deficiencies identified in Michigan’s 

CWA Section 404 program. The 

deficiencies and the corrective actions 

proposed by the state of Michigan are 

contained in the Final Report and in 

documents located in the public docket 

that support this Notice. EPA has 

concluded that program withdrawal 

proceedings should not be initiated at 

this time. However, this Notice and the 

Final Report are not EPA’s final action 

on the petition to withdraw. Within 36 

months of the date of this notice, EPA 

will review all corrective actions 

completed by Michigan and determine 

whether initiating formal withdrawal 

proceedings is warranted. 

Dated: July 22, 2008. 

Bharat Mathur, 

Acting Regional Administrator, Region 5. 

[FR Doc. E8–17588 Filed 7–30–08; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[FRL–8699–4] 

Proposed Past Cost Administrative 

Settlement Under Section 122(h)(1) of 

CERCLA for the Sterling Morton High 

School Superfund Site, Town of 

Cicero, Cook County, IL 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice; Request for public 

comment. 

SUMMARY: In accordance with section 

122(i) of the Comprehensive 

Environmental Response, 

Compensation, and Liability Act, as 

amended ((CERCLA(), 42 U.S.C. 9622(i), 

notice is hereby given of a proposed 

administrative settlement agreement 

pursuant to section 122(h)(1) of 

CERCLA for recovery of past response 

costs incurred by EPA in connection 

with the Sterling Morton High School 

Superfund Site, located in the Town of 

Cicero, Cook County, Illinois (the 

‘‘Site’’). The proposed settlement has 

been approved by the Deputy Section 

Chief of the Environmental Enforcement 

Section of the Environment and Natural 

Resources Division of the U.S. 

Department of Justice. 

Under the terms of the proposed 

settlement agreement, within fifteen (15) 

days of its effective date the following 

parties will pay $550,000 to the 

Hazardous Substances Superfund: J. 

Sterling Morton High School District 

201; Amphenol Corporation; Berkshire 

Investments LLC; Chemtura 

Corporation; CSX Transportation, Inc.; 

E.I. Du Pont de Nemours and Company; 

Getronics NV; Honeywell International 

Inc.; Total Logistics Control, LLC; and 

Vesper Holdings LLC. In each of the 

nine years subsequent to the effective 

date of the proposed agreement, J. 

Sterling Morton High School District 

201 will pay an additional $50,000. The 

settlement represents recovery of 

approximately 91% of the response 

costs incurred by the Agency in 

connection with the time-critical 

removal action conducted by EPA at the 

Site, plus interest. In exchange for 

payment, the United States covenants 

not to sue or take administrative action 

pursuant to section 107(a) of CERCLA, 

42 U.S.C. 9607(a), to recover past 

response costs. In addition, the settling 

parties are entitled to protection from 

contribution actions or claims for past 

response costs, as provided by sections 

113(f)(2) and 122(h)(4) of CERCLA, 42 

U.S.C. 9613(f)(2) and 9622(h)(4). 

For thirty (30) days after the date of 

publication of this notice, the Agency 

will receive written comments relating 

to the proposed settlement. The Agency 

will consider all comments received, 

and may withdraw its consent to the 

settlement if comments received 

disclose facts or considerations which 

indicate that the settlement is 

inappropriate, improper, or inadequate. 

DATES: Comments on the proposed 

settlement must be submitted on or 

before September 2, 2008. 

ADDRESSES: A copy of the proposed 

settlement agreement is available for 

public inspection at EPA’s Record 

Center, 7th floor, 77 W. Jackson Blvd., 

Chicago, Illinois 60604. A copy may 

also be obtained from Eileen L. Furey, 

Chief, Multi-Media II, Section 3, U.S. 

EPA Region 5, 77 W. Jackson Blvd. 

(Mail Code C–14J), Chicago, Illinois 

60604; telephone (312) 886–7950. 

Written comments on the proposed 

settlement should be addressed to 

Eileen Furey at the address specified 

above, and should reference the Sterling 

Morton High School Superfund Site, 

Town of Cicero, Cook County, Illinois, 

EPA Docket No. V–W–08–C–907. 

FOR FURTHER INFORMATION CONTACT: 

Eileen Furey at the address and phone 

number specified above. 

Authority: The Comprehensive 

Environmental Response, Compensation, and 

Liability Act of 1980, as amended, 42 U.S.C. 

9601 et seq. 


jlentini on PROD1PC65 with NOTICES