STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6831

January 10, 1995

ENVIRONMENTAL PROTECTION:

Legal authority of the Department of Natural Resources to issue a limited hazardous waste storage facility operating license

The Department of Natural Resources has the legal authority to issue a limited hazardous waste storage facility operating license under section 21a of the Hazardous Waste Management Act without the prior review and approval of that section by the United States Environmental Protection Agency under the federal Resource Conservation and Recovery Act.

A facility with a limited hazardous waste storage facility operating license is not legally authorized to process hazardous waste, unless the processing of that waste is excluded from regulation as to its treatment or disposal by the Hazardous Waste Management Act and its implementing regulations.

The Hazardous Waste Management Act does not require that a limited storage facility only receive hazardous waste for storage from small quantity generators of hazardous waste.

Honorable David M. Gubow

State Representative

The Capitol

Lansing, MI

You have asked a series of questions concerning the legal authority of the Department of Natural Resources (DNR) to issue a limited hazardous waste storage facility operating license under section 21a of the Hazardous Waste Management Act (the HWMA), 1979 PA 64, MCL 299.501 et seq; MSA 13.30(1) et seq. Your first question may be stated as follows:

This question involves the legal effect of the federal hazardous waste statute, the Resource Conservation and Recovery Act (RCRA), 42 USC Sec. 6901 et seq, upon the regulation of hazardous waste in Michigan. 42 USC Sec. 6926(b) of the RCRA provides that the EPA may authorize a state to implement its own hazardous waste program "in lieu of" the federal program administered by the EPA if the state program is "equivalent to" and "consistent with" the federal program.

Under that authority, the EPA authorized the State of Michigan to implement its own hazardous waste program. 40 CFR 272.1150-1151. That authorization has been updated to reflect various changes in the HWMA and its implementing regulations, as well as the corresponding changes in the scope of the authorized program. Id. The EPA has not approved that part of Michigan's hazardous waste program that is carried out under section 21a of the HWMA.

However, the absence of EPA approval of section 21a of the HWMA does not affect the validity or enforceability of that provision as a matter of state law. EPA review and approval of a state hazardous waste law or regulation pertains solely to the scope of EPA authorization of a state hazardous waste program under 42 USC Sec. 6926(b). Nothing in 42 USC Sec. 6926(b) or any other provision of the RCRA invalidates a state hazardous waste law or regulation simply because it has not yet been approved by the EPA as a part of the state program authorization process.

RCRA does expressly preempt any state hazardous waste requirement less stringent than those provided for under RCRA, but does not prohibit states from imposing requirements more stringent than federal regulations. 42 USC Sec. 6929. Section 21a of the HWMA is no less stringent than RCRA requirements. Like section 21a, RCRA requires only a single permit or license for a hazardous waste storage facility. 42 USC Sec. 6925(a); 40 CFR 270.1. Moreover, because section 21a(2) of the HWMA specifically requires that a limited storage facility be compatible with local zoning ordinances and section 4(7) of the HWMA imposes certain operating restrictions on the quantity of waste that may be stored, section 21a is more stringent than the federal requirements for a hazardous waste treatment, storage, or disposal facility permit under the RCRA. See 40 CFR 270. In sum, the RCRA does not preempt section 21a of the HWMA.

It is my opinion, therefore, in response to your first question, that the Department of Natural Resources has the legal authority to issue a limited hazardous waste storage facility operating license under section 21a of the Hazardous Waste Management Act without the prior review and approval of that section by the United States Environmental Protection Agency under the federal Resource Conservation and Recovery Act.

Your second question may be stated as follows:

A limited storage facility operating license under the HWMA authorizes only storage, not the treatment or disposal, of hazardous waste. Section 4(7) of the HWMA defines a limited storage facility as follows:

A "storage facility" is "a facility or part of a facility where managed hazardous waste, as defined by rule, is subject to storage," under section 5(6) of the HWMA. In section 5(5), the HWMA defines "storage" as "the holding of hazardous waste for a temporary period, at the end of which the hazardous waste is treated, disposed of, or stored elsewhere." Thus, a limited storage facility operating license does not authorize any activity other than the temporary storage of hazardous waste. A person seeking authority to treat or dispose of hazardous waste under the HWMA must obtain both a construction permit under section 18 of the HWMA and an operating license under section 22 of the HWMA for a treatment or disposal facility.

It should be noted, however, that the HWMA and the administrative rules promulgated by the DNR pursuant to the HWMA exclude certain types of hazardous waste processing activities from regulation as treatment or disposal. For example, under 1994 MR 6, R 299.9206(1)(b), a waste reclamation or recycling process carried out at a licensed hazardous waste storage facility may be exempt from regulation as a treatment facility. ⁽¹⁾

It is my opinion, therefore, in response to your second question, that a facility with a limited hazardous waste storage facility operating license is not legally authorized to process hazardous waste, unless the processing of that waste is excluded from regulation as to its treatment or disposal by the Hazardous Waste Management Act and its implementing regulations as applied by the DNR.

Your third question may be stated as follows:

As noted above, section 4(7) of the HWMA limits the amount and duration of storage of hazardous waste in a limited storage facility licensed under section 21(a). However, the only restrictions that the Legislature has imposed upon the sources of hazardous waste that may be received in a limited storage facility are contained in section 4(7)(e) of the HWMA. That portion of the definition of "limited storage facility" provides that such a facility "[may] not receive hazardous waste from a treatment, storage, or disposal facility." Thus, a limited storage facility may receive hazardous waste only from a generator of hazardous waste, rather than a treatment, storage, or disposal facility. Section 4(2) of the HWMA defines "generator" as "any person, by site, whose act or process, produces hazardous waste as identified or listed pursuant to section 27 or whose act first causes a hazardous waste to become subject to regulation under [the] act." The HWMA contains no further restriction based upon the type or classification of generator from which a limited storage facility may receive hazardous waste.

While the term "small quantity generator" appears in administrative rules promulgated by the DNR in 1985 ⁽²⁾, the Legislature did not incorporate that distinction when it added section 21a to the HWMA by 1987 PA 195.

"When a statute is clear and unambiguous, ... construction or interpretation is unnecessary and therefore, precluded." Lorencz v. Ford Motor Co, 439 Mich 370, 376; 483 NW2d 844 (1992) (citations omitted). Here, the relevant language of the HWMA is clear and unambiguous. Section 4(7)(e) of the HWMA plainly prohibits limited storage facilities from receiving hazardous waste from treatment, storage, or disposal facilities, but places no further restriction on the sources of such waste.

It is my opinion, therefore, in response to your third question, that the Hazardous Waste Management Act does not require that a limited storage facility only receive hazardous waste for storage from small quantity generators of hazardous waste.

Your final question may be stated as follows:

Concerning the facility that is the subject of your request, I am advised that staff of the DNR and of this office have concluded, after careful review of the contamination incident referred to, that there is insufficient evidence to establish the liability of the license applicant for the incident and the resulting expenditures of public funds. In light of that factual determination, there is no need to address your last legal question.

Frank J. Kelley

Attorney General