The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


Opinion No. 6836

February 21, 1995

ENVIRONMENTAL PROTECTION:

Disposal of waste containing PCBs in a landfill licensed under the Hazardous Waste Management Act

A landfill located in Michigan must obtain approval from the Regional Administrator of the Environmental Protection Agency pursuant to 40 CFR 761.75 before accepting waste containing PCBs.

The operator of a hazardous waste landfill seeking renewal of a license under the Hazardous Waste Management Act must obtain a modification of the landfill operating license from the Michigan Department of Natural Resources before accepting waste containing PCBs where acceptance of that waste was not specifically authorized in the previous license.

The Michigan Department of Natural Resources must follow the public participation requirements of 1994 MR 6, R 299.9511 of the Hazardous Waste Management Act rules before deciding whether to renew a hazardous waste landfill operating license that allows the acceptance of PCB waste for the first time.

Prior approval by the Michigan Department of Natural Resources is required under 1976 PA 60 and its implementing administrative rules to dispose of wastes containing PCBs at concentrations of 100 parts per million or greater in a Michigan landfill.

The Michigan Department of Natural Resources shall follow the public participation requirements of 1994 MR 6, R 299.9511, before making a final decision under 1976 PA 60 and its implementing regulations concerning the disposal of PCB wastes in a landfill licensed under the Hazardous Waste Management Act.

Honorable George Z. Hart

State Senator

The Capitol

Lansing, MI

Honorable Robert A. DeMars

State Representative

The Capitol

Lansing, MI

Honorable Christopher D. Dingell

State Senator

The Capitol

Lansing, MI

Honorable Ilona Varga

State Representative

The Capitol

Lansing, MI

Honorable Agnes M. Dobronski

State Representative

The Capitol

Lansing, MI

Honorable Joseph Palamara

State Representative

The Capitol

Lansing, MI

You have asked a series of questions involving the disposal of wastes containing polychlorinated biphenyls (PCBs) in a landfill licensed under the Hazardous Waste Management Act (HWMA), 1979 PA 64, MCL 299.501 et seq; MSA 13.30(1) et seq. Your first question may be stated as follows:

1. What federal requirements, if any, must a landfill located in Michigan meet before it may accept wastes containing PCBs?

The Toxic Substances Control Act (TSCA), 15 USC 2601 et seq, requires the United States Environmental Protection Agency (EPA) to regulate the disposal of PCBs. 15 USC 2605(e). Pursuant to that authority, the EPA has promulgated regulations governing PCB disposal. 40 CFR 761.60-79. Under those regulations, wastes containing PCBs at concentrations of 50 parts per million (ppm) or greater may only be disposed of in an incinerator which complies with section 761.70, a chemical waste landfill which complies with section 761.75, or by a disposal method approved by the Regional Administrator of the EPA. Before accepting PCB wastes for disposal, a landfill in Michigan must obtain written approval from the EPA Region V Regional Administrator pursuant to 40 CFR 761.75.

The technical and other requirements for such approval are contained in section 761.75. In addition to the technical requirements contained in subsection 761.75(b), the Regional Administrator may condition the approval of PCB disposal in a landfill upon "any other requirements or provisions that the Regional Administrator finds are necessary to ensure that operation of the chemical waste landfill does not present an unreasonable risk of injury to health or the environment from PCBs." 40 CFR 761.75(c)(3)(ii).

It is my opinion, therefore, in answer to your first question, that a landfill located in Michigan must obtain approval from the Regional Administrator of the Environmental Protection Agency pursuant to 40 CFR 761.75 before accepting waste containing PCBs.

Your second question may be stated as follows:

2. Must the operator of a hazardous waste landfill seeking renewal of a license under the HWMA obtain a modification of the landfill operating license from the Michigan Department of Natural Resources (MDNR) before accepting wastes containing PCBs where acceptance of that waste was not specifically authorized in the previous license?

The HWMA is intended to protect the public health and natural resources of Michigan by comprehensively regulating the generation, transportation, treatment, storage, and disposal of hazardous wastes. Among other things, sections 15 through 24 of the HWMA govern the construction and operation of hazardous waste disposal facilities, including landfills. Under section 25, the Director of the MDNR is primarily responsible for the administration of the HWMA.

The Resource Conservation and Recovery Act (RCRA), 42 USC 6901 et seq, like the HWMA, comprehensively regulates the disposal of hazardous wastes. It expressly preempts any state hazardous waste regulations less stringent than those promulgated under the RCRA. 42 USC 6929. Under 42 USC 6926(b), the EPA has authorized the State of Michigan to implement its own hazardous waste program, based upon the HWMA, in lieu of portions of the federal RCRA program. See 40 CFR 272.1150-1151.

In section 4(3) of the HWMA, the Legislature broadly defined "hazardous waste" to include any waste which may pose a substantial hazard to human health or the environment:

"Hazardous waste" means waste or a combination of waste and other discarded material including solid, liquid, semisolid, or contained gaseous material which because of its quantity; quality; concentration; or physical, chemical, or infectious characteristics may cause or significantly contribute to an increase in mortality or increase in serious irreversible illness or serious incapacitating, but reversible illness, or pose a substantial present or potential hazard to human health or the environment if improperly treated, stored, transported, disposed of, or otherwise managed. Hazardous waste does not include material which is solid or dissolved material in domestic sewage discharge, or solid or dissolved material in an irrigation return flow discharge, or industrial discharge which is a point source subject to permits under section 402 of title IV of the federal water pollution control act, chapter 758, 86 Stat. 880, 33 U.S.C. 1342, or is a source, special nuclear, or by-product material as defined by the atomic energy act of 1954, chapter 1073, 68 Stat. 919.

Although the HWMA definition of hazardous waste excludes certain wastes regulated under other environmental laws, it does not exclude PCBs.

PCB wastes are well recognized as wastes which present significant potential hazards to human health and the environment. One court has observed that PCBs are "particularly toxic and deadly substances," as well as "carcinogenic agents, and direct exposure even to minute quantities of them can be fatal." Rollins Envtl Services, Inc v Parish of St. James, 775 F2d 627, 629 (CA 5, 1985).

PCBs are specifically identified as toxic and regulated under other state and federal environmental laws. In 1976 PA 60, MCL 299.351 et seq; MSA 13.28(1) et seq, the Michigan Legislature has regulated the manufacture, use, and disposal of PCBs "to protect the public health, safety and welfare from the toxic effects and environmental dangers of PCB." See section 2 of 1976 PA 60. Similarly, as noted above, the TSCA specifically requires the EPA to regulate the disposal of PCBs. 15 USC 2605(e).

In sum, the potential health and environmental hazards of PCBs are well recognized in state and federal laws. Because of these dangers, PCB wastes are "hazardous waste" within the meaning of section 4(3) of the HWMA.

Next, we consider whether wastes containing PCBs may be placed in a licensed landfill that has not been licensed to accept wastes containing PCBs. Under section 26 of the HWMA, the Director of the MDNR has promulgated rules for implementation and administration of that act. 1994 MR 6, R 299.9101 et seq. Those HWMA rules closely parallel regulations promulgated by the EPA pursuant to the RCRA.

Both the HWMA rules and the RCRA regulations upon which they are based require a person seeking authority to operate a hazardous waste landfill to disclose the types of wastes to be placed in the landfill. See 1994 MR 6, R 299.9504(8), and 1988 AACS, R 299.9508(1)(b), incorporating by reference 40 CFR 270.21. That information is used by the MDNR in determining whether to issue a landfill operating license and in establishing license conditions. The MDNR is also required to identify the type and quantity of wastes to be disposed in fact sheets made available to the public during the licensing process. 1985 AACS, R 299.9512(b).

Consistent with those regulations, hazardous waste disposal facility operating licenses issued by the MDNR pursuant to the HWMA typically list the specific wastes that may be disposed. Furthermore, the licenses expressly prohibit the licensee from disposing of any "hazardous waste" not listed in the license unless the Director approves the disposal of the new waste type through a modification of the license.

Under 1994 MR 6, R 299.9519, license modifications are divided into two classes designated major and minor. Disposal of a new type of waste is not included in the list of minor license modifications set forth in R 299.9519(5).

R 299.9519(9) provides:

Any modification that is not specifically listed in subrule (5) of this rule shall be considered a major permit modification or major license modification and shall be subject to the requirements of R 299.9511 and R 299.9520....

Under the above-quoted rule, disposal of a new type of waste is a major license modification. Thus, it is subject to the requirements of 1994 MR 6, R 299.9511, including prior approval by the MDNR.

It is my opinion, therefore, in answer to your second question, that the operator of a hazardous waste landfill seeking renewal of a license under the Hazardous Waste Management Act must obtain a modification of the landfill operating license from the Michigan Department of Natural Resources before accepting waste containing PCBs where acceptance of that waste was not specifically authorized in the previous license.

Your third question may be stated as follows:

3. What public participation requirements must be followed by the MDNR before deciding whether to renew a hazardous waste landfill operating license that allows the acceptance of PCB waste for the first time?

As discussed above, a proposal to dispose of different wastes, including PCB waste, in a landfill licensed under the HWMA is a major license modification under 1994 MR 6, R 299.9519(9). Thus, it is subject to the public participation procedures found in R 299.9511. This is also true in connection with an application to renew a license. See 1988 AACS, R 299.9510(1) and (7).

The public participation procedures listed in R 299.9511 include preparation of a draft license modification or notice of intent to deny; preparation of a fact sheet; publication of a public notice and a public comment period of at least 60 days; public notice for an opportunity for a public hearing; and a response to public comments.

It is my opinion, therefore, in answer to your third question, that the Michigan Department of Natural Resources must follow the public participation requirements of 1994 MR 6, R 299.9511 of the Hazardous Waste Management Act rules before deciding whether to renew a hazardous waste landfill operating license that allows the acceptance of PCB waste for the first time.

Your fourth question may be stated as follows:

4. Whether prior approval by the MDNR is required under 1976 PA 60 and its implementing administrative rules to dispose of wastes containing PCBs in a Michigan landfill.

As noted above, the Legislature enacted 1976 PA 60 to regulate the manufacture, sale, and use of PCBs and to provide for their disposal. Section 2 of that act requires the Director of the MDNR to administer and implement the act "to protect the public health, safety, and welfare from the toxic effects and environmental dangers of PCB" and to promulgate rules to implement and administer the act.

Section 8 of the act prohibits the disposal of certain wastes containing PCBs except in conformity with rules promulgated by the MDNR:

Beginning July 1, 1976, a person shall not dispose of solid or liquid waste resulting from the use in his business of PCB or an item, product, or material containing or which has contained a concentration equal to or greater than 100 ppm of PCB except in conformity with rules promulgated by the director.

Pursuant to sections 2 and 8 of the act, the MDNR has promulgated rules governing the disposal of PCBs. 1979 AC, R 299.3313-3317. Rule 299.3313 prohibits the introduction of PCB or PCB-contaminated materials into surface water, groundwater, or air and prohibits their introduction into soil except as specifically authorized in the rules or approved in writing by the MDNR. Rule 299.3317 provides for disposal of PCBs in incinerators or landfills approved by the MDNR for that purpose or by other methods approved in writing by the Director of the MDNR.

As previously noted, the federal government also regulates the disposal of PCBs pursuant to the TSCA. Congress specifically mandated the EPA regulation of PCB disposal in 15 USC 2605(e). The EPA regulations governing PCB disposal are codified at 40 CFR 761.60-79.

The existence of these federal regulations raises the question whether they preempt the Michigan PCB disposal regulations under 1976 PA 60. Congress specifically addressed the preemptive effect of the TSCA regulations on state law in 15 USC 2617(a):

(1) Except as provided in paragraph (2), nothing in this chapter shall affect the authority of any State or political subdivision of a State to establish or continue in effect regulation of any chemical substance, mixture, or article containing a chemical substance or mixture.

(2) Except as provided in subsection (b) of this section--

 

 

(B) if the Administrator prescribes a rule or order under section 2604 or 2605 of this title (other than a rule imposing a requirement described in subsection (a)(6) of section 2605 of this title) which is applicable to a chemical substance or mixture, and which is designed to protect against a risk of injury to health or the environment associated with such substance or mixture, no State or political subdivision of a State may, after the effective date of such requirement, establish or continue in effect, any requirement which is applicable to such substance or mixture, or an article containing such substance or mixture, and which is designed to protect against such risk.... [Emphasis added.]

Thus, subject to certain exceptions noted in the statute, the TSCA provides that rules promulgated by the EPA pursuant to section 2605 preempt state or local regulations concerning the same chemical substance. However, the EPA rules regulating disposal of toxic substances as described in section 2605(a)(6) do not have preemptive effect.

Several federal courts have considered whether the TSCA regulations preempt PCB disposal regulations adopted by state and local governments. These courts have split on the issue. Cf. Chappell v SCA Services, Inc, 540 FSupp 1087, 1096-1098 (CD Ill, 1982), which found no preemption, with Rollins Envtl Services, Inc, supra, at 634; SED, Inc v City of Dayton, 519 FSupp 979, 987-988 (SD Ohio, 1981), which found federal preemption. No reported decision of a state or federal court has considered whether the TSCA regulations preempt the Michigan PCB disposal requirements of 1976 PA 60 and its implementing regulations.

However, the EPA has, on at least three occasions, considered whether its PCB regulations under 15 USC 2605 preempt the PCB disposal requirements of 1976 PA 60 and the associated administrative rules. In each instance, the EPA concluded that its TSCA regulations do not preempt Michigan's PCB disposal requirements. For example, in a November 7, 1979, letter responding to a specific inquiry by the Director of the MDNR, the EPA's Office of General Counsel analyzed whether the EPA's TSCA rules preempted 1976 PA 60 and its implementing regulations. The EPA concluded that section 8 of 1976 PA 60 and Rules 299.3313(2), 299.3316(2), and 299.3317 are not preempted to the extent that Michigan's PCB disposal requirements are no less stringent than the EPA regulations. See also, 43 FedReg 7150, 7153 (1978), and 44 FedReg 31514, 31528 (1979).

As the EPA has found, the PCB disposal requirements of section 8 of 1976 PA 60 and Rules 299.3313 and 299.3317 are not less stringent than the federal PCB disposal requirements of 40 CFR 761.60-79, at least with respect to wastes containing or that have contained PCBs at concentrations of 100 ppm or greater. The federal disposal rule regulates the disposal of wastes containing PCBs at concentrations of 50 ppm or greater. Wastes containing PCBs at concentrations of 100 ppm or more are subject to regulation under both the TSCA and 1976 PA 60.

In these circumstances, the federal PCB disposal rule under the TSCA does not preempt the PCB disposal requirements established under 1976 PA 60 for wastes that contain or have contained PCBs at concentrations of 100 ppm or more. This result is in accord with the well established rule that great deference should be afforded an agency interpretation of a statute the agency administers. Chevron U.S.A., Inc v Natural Resources Defense Council, Inc, 467 US 837, 843-844; 104 SCt 2778; 81 LEd2d 694 (1984); Ludington Service Corp v Acting Comm'r of Insurance, 444 Mich 481, 491; 511 NW2d 661 (1994).

It is my opinion, therefore, in answer to your fourth question, that prior approval by the Michigan Department of Natural Resources is required under 1976 PA 60 and its implementing administrative rules to dispose of wastes containing PCBs at concentrations of 100 parts per million or greater in a Michigan landfill.

Your fifth question may be stated as follows:

5. What public participation requirements should be followed by the MDNR before making a final decision under 1976 PA 60 and its implementing regulations concerning the disposal of PCB wastes in a landfill licensed under the HWMA?

Neither 1976 PA 60 nor the administrative rules promulgated pursuant to that act specifically address the procedures to be followed by the Director of the MDNR in deciding whether to approve the disposal of PCBs in a landfill. The most specific provision, 1979 AC, R 299.3317, merely outlines the requirement for approval of disposal methods.

The provisions of 1976 PA 60 and the associated administrative rules should be read together with other Michigan laws and regulations addressing the same subject matter that are in pari materia. Dearborn Twp Clerk v Jones, 335 Mich 658, 662; 57 NW2d 40 (1953). Moreover, 1979 AC, R 299.3302, adopted under 1976 PA 60, expressly provides that compliance with those rules does not relieve a person of the responsibility to comply with other laws and regulations applicable to PCBs:

Compliance with these rules shall not relieve a person of that person's responsibility to conform to other Michigan and federal acts, statutes, and promulgated rules which may apply to PCB....

As discussed above in response to your second question, the HWMA and its associated administrative rules also apply to the disposal of PCBs in a landfill licensed under the HWMA. Unless PCB disposal is specifically authorized in the existing HWMA license, a landfill must obtain a major modification of its existing operating license within the meaning of 1994 MR 6, R 299.9519, before accepting PCB wastes. If the existing HWMA license has expired, the landfill operator must obtain a new HWMA license specifically authorizing disposal of PCB waste. 1994 MR 6, R 299.9511, lists the public participation requirements applicable to both major license modifications and issuance of new licenses.

In addition, the Legislature has mandated, in section 25 of the HWMA, that the Director of the MDNR coordinate and integrate the provisions of the HWMA with other appropriate state laws:

The director shall coordinate and integrate the provisions of this act for purposes of administration and enforcement with appropriate state and federal law....

Consistent with this statutory mandate, the Director of the MDNR shall coordinate and integrate a landfill license modification decision under the HWMA pertaining to PCB disposal with a decision under 1976 PA 60 pertaining to approval of PCB disposal in the same landfill. Accordingly, the public participation provisions of R 299.9511 would apply to the integrated decision making processes under the HWMA and 1976 PA 60.

It is my opinion, therefore, in answer to your fifth question, that the Michigan Department of Natural Resources shall follow the public participation requirements of 1994 MR 6, R 299.9511, before making a final decision under 1976 PA 60 and its implementing regulations concerning the disposal of PCB wastes in a landfill licensed under the Hazardous Waste Management Act.

Frank J. Kelley

Attorney General