[Federal Register Volume 60, Number 9 (Friday, January 13, 1995)]
[Rules and Regulations]
[Pages 3095-3098]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-823]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 271

[FRL-5138-9]


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.

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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 
the reorganization of the Michigan Department of Natural Resources 
(MDNR) by Executive Order 1991-31.

EFFECTIVE DATE: January 13, 1995.

FOR FURTHER INFORMATION CONTACT: Ms. Judy Feigler, RCRA Regulatory 
Development Section, U.S. EPA, Region 5, 77 W. Jackson (HRM-7J), 
Chicago, Illinois 60604, or telephone (312) 886-4179.

SUPPLEMENTARY INFORMATION:

A. Background

    On October 21, 1994, 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, 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); [[Page 3096]] and November 30, 1993 (58 FR 51244, October 1, 
1993). Michigan's Program Description dated June 30, 1984, and addenda 
thereto dated June 30, 1986; September 12, 1988; July 31, 1990; and 
August 10, 1992, 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 indicated that the Site Review Board 
(SRB) also had authority to approve or deny construction permit 
applications.
    On November 8, 1991, the Governor of Michigan issued Executive 
Order 1991-31 (EO 1991-31). EO 1991-31, which became effective on 
September 2, 1993, provides that:

    All the statutory authority, power, duties, functions, and 
responsibilities of the Commission of Natural Resources and the 
Department of Natural Resources * * * and of the director of the 
Department of Natural Resources and of the agencies, boards and 
commissions contained therein * * * are hereby transferred to the 
director of a new Michigan Department of Natural Resources, by a 
Type II transfer, as defined by Section 3 of Act No. 380 of the 
Public Acts of 1965, being Section 16.103 of the Michigan Compiled 
Laws.

EO 1991-31, Section I(A)(1).
    EO 1991-31 also affected the SRB. EO 1991-31 also provides that:

    * * * the functions, duties, and responsibilities of the Site 
Review Boards * * * are transferred by a Type II transfer * * * and 
a Site Review Board shall be advisory to the director of the new 
Michigan Department of Natural Resources.

EO 1991-31, Section III(C)(9). The Director of the MDNR now has the 
authority to approve or deny construction permit applications.
    Pursuant to EPA's request, on March 10 and August 18, 1994, 
Michigan submitted documents to EPA that were necessary for EPA to 
determine the impact of EO 1991-31 upon the authorized State hazardous 
waste management program. The documents consisted of a modified Program 
Description, an addendum to the Attorney General's Statement, and an 
addendum to the Memorandum of Agreement between the State and EPA 
outlining the policies, responsibilities and procedures under which the 
program is administered. Michigan in its submittal indicated that there 
had been no substantive changes in Michigan's hazardous waste 
management program as a result of EO 1991-31. Rather, according to 
Michigan, EO 1991-31 resulted in some internal reorganization of the 
MDNR.
    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 271.21(b). On October 21, 
1994, 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 two 
locations in Michigan.

B. Comments

    In response to the October 21, 1994, notice, EPA received comments 
from the National Wildlife Federation (NWF), who disagreed with EPA's 
proposed approval of Michigan's hazardous waste management program 
revisions. A summary of NWF's comments and EPA's response is provided 
below:
    In its first comment, NWF claims that Michigan has failed to 
demonstrate that its reorganized program complies with the minimum 
Federal requirements concerning public participation of Section 7004(b) 
of RCRA. The commenter noted that in changing the role of the SRB from 
a decision-making body to an advisory body, EO 1991-31 transferred the 
permit decision-making power to the Director of the MDNR. According to 
the commenter, the MDNR Director, unlike the former SRB, is not subject 
to Michigan's Open Meetings Act. The commenter states that public 
access to monitor the Director is limited by the reorganization, and 
Michigan's public has no right to observe and attend the meetings at 
which key permitting decisions are made. Therefore, the commenter 
believes that the ``new MDNR'' fails to encourage public participation.
    EPA does not agree that this change represents a change in the 
public participation requirements of Michigan's hazardous waste program 
that is inconsistent with RCRA Section 7004(b)(2). Michigan, in its 
submittal to EPA of information on March 10 and August 18, 1994, 
demonstrated that EO 1991-31 did not substantially alter the public 
participation processes or affect the authorized State program's 
equivalence or consistency to the Federal program. The State's public 
participation provisions include the following: notice of the State's 
intent to issue a permit through publication in major local newspapers 
of general circulation; broadcasts of such notice over local radio 
stations; written notice to certain State and local governmental 
agencies; at least a 45-day public comment period; and an informal 
public hearing if one is requested during the comment period (see 
Michigan Administrative Code Sections R299.9513 and R 299.9514). The 
change in the applicability of the State's Open Meetings Act did not 
constitute a change in the State hazardous waste program, since the 
State's Open Meetings Act has never been relied upon by the State to 
meet the Federal guidelines for public participation (see 40 CFR 271.14 
and 124). RCRA Section 3006(b) requires States to maintain equivalency 
to the Federal program; however, States can also pass legislation that 
is more stringent than the Federal programs. The Michigan Open Meetings 
Act would fall in that category since it is a State law that goes 
beyond the Federal requirements for public participation. Consequently, 
the change in the applicability of the State's Open Meetings Act to the 
MDNR Director does not represent a change in Michigan's hazardous waste 
management program. Any direct comments on the Michigan Open Meetings 
Act should be referred to the State of Michigan.<SUP>1

    \1\It should be noted, though, that public involvement in RCRA 
activities is receiving increased visibility. On June 2, 1994, EPA 
published in the Federal Register (59 FR 28680-28711) a proposed 
rule that would require earlier and more meaningful public 
participation in the RCRA permitting process. This Agency rulemaking 
is anticipated to be finalized the summer of 1995. When this rule 
becomes finalized, States will be required to be authorized for 
these activities. However, for the time being, the State of Michigan 
is meeting all the current requirements for public participation 
under the Federal RCRA program.
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    The commenter also suggested that EO 1991-31 affected the public 
participation requirements, since it changed the manner in which the 
State develops administrative rules implementing Michigan's hazardous 
waste program. The Director of the MDNR now establishes the 
administrative rules by which the program is administered rather than 
the Michigan Natural Resources Commission (MNRC). The commenter stated 
that the Director of the MDNR, unlike MNRC, is not subject to 
Michigan's Open Meetings Act and therefore the Director can make final 
decisions on administrative rules pertaining to the hazardous waste 
management program in closed meetings and the substance of those 
meetings need not be recorded. The commenter suggested that this 
represents a significant change in the way the State develops 
administrative [[Page 3097]] rules for Michigan's hazardous waste 
management program.
    EPA does not agree that this apparent change in the manner in which 
administrative rules are developed represents a change in Michigan's 
hazardous waste management program that is inconsistent with RCRA 
Section 7004(b). A State's Federally authorized hazardous waste 
management program consists of the statutes and rules which govern the 
State's program. EPA has no role to play in overseeing or dictating how 
those statutes and rules are developed. Instead, EPA's role is to 
determine whether the statutes and rules which comprise the program 
comply with minimum Federal requirements for authorized programs (e.g., 
providing public notice, hearings, and comment periods on permit 
decisions). If the State desires to change those statutes or rules, EPA 
has no role in determining the manner in which those statutes or rules 
are changed, so long as the State submits the proposed changes to EPA 
for review. Consequently, this change in the manner in which the State 
develops administrative rules is outside the scope of EPA's review of 
the State's hazardous waste management program under 40 CFR 271.
    The second comment made by NWF is that, pursuant to 40 CFR 
271.21(c), whenever a State transfers all or part of the approved 
hazardous waste management program from the approved State agency to 
any other State agency, the new agency is not authorized to administer 
the program until approved by EPA. The commenter claimed that EO 1991-
31 consolidated various departments and agencies into a ``new'' MDNR, 
since the Director of the MDNR has assumed, under a Type III transfer, 
all the powers, duties and authorities which were formerly allocated to 
the Hazardous Waste Management Planning Committee (HWMPC), as well as 
all powers (including sole power to issue permits), duties and 
authority formerly allocated to the SRB, under a Type II transfer. The 
commenter also claimed that this reorganization is a ``transfer'' 
within the purview of 40 CFR 271.21(c), because the ``old MDNR'' and 
the ``new MDNR,'' as well as the SRB, HWMPC, and the Director of the 
``new MDNR'' are each separate ``agencies'' within the meaning of 40 
CFR 271.21(c). The commenter also claimed that both the State courts 
and the State of Michigan have indicated that the reorganization 
constitutes a revision and transfer.
    EPA has determined that the revisions to Michigan's program are 
consistent with the requirements of RCRA and its implementing 
regulations. Based on the information available to us, EPA has 
determined that the reorganization of Michigan's hazardous waste 
management program resulting from EO 1991-31 constitutes a program 
revision requiring appropriate EPA review and approval. However, EPA 
has determined that the reorganization of the MDNR resulting from EO 
1991-31 does not constitute a transfer to another agency for the 
purposes of 40 CFR 271.21(c).
    EPA recognizes that the Michigan Supreme Court has held that EO 
1991-31 created a ``new'' MDNR. Dodak v. Engler, 443 Mich. 560 (1993). 
However, the Michigan Attorney General, in a letter dated November 8, 
1993, has stated that the Executive Order did not create a new agency. 
In any event, the question of whether MDNR remained the same agency or 
whether it became ``any other State agency'' as a result of 1991-31 is 
not at issue in this determination. The MDNR, as described above, has 
been the approved State agency for the implementation of Michigan RCRA 
hazardous waste management program, both before and after the Executive 
Order. Whether MDNR is considered to be a ``new'' agency under State 
law is not controlling with respect to whether there has been a 
transfer of authority from an ``approved State agency to any other 
State agency.'' Instead, it is EPA's regulations which are controlling 
in this issue.
    EPA's regulations at 40 CFR 271.21(c) do not provide clear guidance 
on whether the reorganization and consolidation of environmental 
programs accomplished by EO 1991-31 constitutes a ``transfer'' of 
authority requiring prior EPA approval. The preamble to the 1986 State 
hazardous waste program regulations similarly fails to provide any such 
guidance. (See 51 FR 33712, September 22, 1986). However, the 1980 
preamble to the final National Pollutant Discharge Elimination System 
State program rule, in addressing language at 40 CFR 123.62(c), which 
is similar to that at 40 CFR 271.21(c), stated:

    One commenter requested that there be no formal EPA review of 
nominal changes in the structure and responsibilities of State 
agencies administering an approved program. It was not the intent of 
the proposal nor is it of these final regulations to require EPA 
review in such cases [''nominal changes'' in State agencies]. Only 
when controlling Federal or State statutory or regulatory authority 
is modified or supplemented, or when the State proposes to transfer 
all or part of a program from an approved State agency to another 
State agency may EPA approval be necessary. Changes solely to the 
internal structure of an approved State agency, with no changes to 
the overall authority of the agency, do not require EPA approval.

45 FR 33290, 33384 (May 19, 1980).
    In addition, EPA's guidance to States on developing applications 
for revisions to their authorized State programs, the State 
Authorization Manual (SAM) (OSWER Directive 9540.00-9A, October 1990) 
is also consistent with the above preamble language. The SAM, on page 
2-2, states that: ``. . . changes within the internal structure of the 
approved State agency, with no changes in the overall authority of the 
agency, do not require EPA approval.'' EPA interprets the language of 
40 CFR 271.21(c) as not applying to changes within the internal 
structure that do not substantively change the overall authority of the 
agency. The controlling authorities under State law pertaining to the 
RCRA hazardous waste management program were not affected by EO 1991-
31, nor were the overall functions or structure of the Michigan 
hazardous waste management program substantially changed. Therefore, 
EPA does not view the reorganization of the MDNR resulting from EO 
1991-31 as a transfer under the purview of 40 CFR 271.21(c).
    In regards to the Michigan HWMPC, that department has never been 
considered to be part of Michigan's authorized State hazardous waste 
program. The HWMPC was established by Section 8A of Michigan Public Act 
64 for the purpose of developing a State hazardous waste management 
plan. The plan was adopted by the Michigan Natural Resources Commission 
on January 1, 1992. Abolishment of the HWMPC by EO 1991-31 and transfer 
of the all of its statutory authority, powers, and duties to the MDNR 
did not impact the State's hazardous waste management program, since 
RCRA does not require States to develop such a plan.
    In regards to the SRB, EPA does not agree that the transfer of 
permit decision-making authority from the SRB to the Director of the 
``new'' MDNR constitutes a transfer between agencies under the purview 
of 40 CFR 271.21(c). As described above, the prior EPA approval 
requirement in 40 CFR 271.21(c) applies in situations where such 
restructuring or consolidation impacts the controlling authorities by 
which a State implements the RCRA hazardous waste management program. 
EO 1991-31 did not affect the State's controlling authorities by which 
the State implements the RCRA hazardous waste management program, but 
rather it transferred decision-making responsibilities within the 
authorized State hazardous waste management [[Page 3098]] program. 
Consequently, EPA does not view the change in roles of the SRB and the 
MDNR Director as a transfer of authorities between agencies under the 
purview of 40 CFR 271.21(c).
    The third comment made by NWF is not related in any way to EO 1991-
31. The commenter suggested that Michigan's program has wrongfully 
failed to eliminate the exemption for municipal waste combustion ash 
addressed in Chicago v. Environmental Defense Fund, 114 S.Ct. 1588 
(1994). According to the commenter, Michigan's reorganized RCRA program 
is therefore not in conformance with the Federal RCRA program, and 
authority for it should be withdrawn pursuant to 40 CFR 271.22. In the 
present matter, EPA requested that Michigan submit information to EPA 
pursuant to 40 CFR 271.21(d) on whether any revisions occurred in 
Michigan's Federally authorized hazardous waste management program as a 
result of EO 1991-31. EPA has not requested information pertaining to 
any other issues regarding Michigan's hazardous waste management 
program. Therefore, EPA is limiting its review to the effects of EO 
1991-31.
    EPA appreciates the comments received on these matters, has 
forwarded them to Michigan, and will consider them in the context of 
EPA's ongoing oversight of Michigan's hazardous waste management 
program. If, in the course of its ongoing oversight, EPA determines 
that additional program revisions have occurred, EPA will take the 
appropriate steps as set forth at 40 CFR 271.21 to review and approve 
or disapprove of the revisions.

C. Decision

    I conclude that Michigan's application for final authorization 
meets all of the statutory and regulatory requirements established by 
RCRA. Accordingly, Michigan is granted final authorization to operate 
its hazardous waste program as revised. Michigan now 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.

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.

Certification Under the Regulatory Flexibility Act

    Pursuant to the provisions of 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, nor will it impose any new 
burdens on small entities. This rule, therefore, does not require a 
regulatory flexibility analysis.

Paperwork Reduction Act

    Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., Federal 
agencies must consider the paperwork burden imposed by any information 
request contained in a proposed rule or a final rule. This rule will 
not impose any information requirements upon the regulated community.

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: January 4, 1995.
Valdas V. Adamkus,
Regional Administrator.
[FR Doc. 95-823 Filed 1-12-95; 8:45 am]
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