Michigan Office of Administrative Hearings and Rules

Administrative Rules Division (ARD)

MOAHR-Rules@michigan.gov

REQUEST FOR RULEMAKING (RFR)

1. Department:

Environment, Great Lakes and Energy

2. Bureau:

Water Resources Division

3. Promulgation type:

Full Process

4. Title of proposed rule set:

Sewerage Systems

5. Rule numbers or rule set range of numbers:

R 299.2901-R 299.2974

6. Estimated time frame:

12 months

Name of person filling out RFR:

Alyssa Sarver

E-mail of person filling out RFR:

SarverA@michigan.gov

Phone number of person filling out RFR:

517-881-1371

Address of person filling out RFR:

P.O. Box 30458, Lansing, MI 48909-7958

7. Describe the general purpose of these rules, including any problems the changes are intended

to address.

MCL 24.239

RFR-Page 2

The general purpose of these rules is to implement the provisions of Part 41, Sewerage Systems,

of the Natural Resources and Environmental Protection Act, 1994 PA 451, as amended (NREPA).

Currently, wastewater collection systems that discharge to a wastewater treatment facility are

operated by individuals that are not certified with a system-specific certification. The proposed

rules will require facility classification and a certified operator for collection systems. EGLE is

addressing longstanding operation and maintenance issues with collection systems such as

breakdowns, blockages, capacity issues, infiltration and inflow, and structural integrity issues. The

additional oversight, operation, and maintenance requirements for the collection systems will

provide more protection for public health, the environment, and will assist the receiving

wastewater treatment plants better manage their systems to meet the permit requirements.

The proposed retention treatment basin (RTB) facility classification and corresponding operator

certification requirement will improve the quality of operation of RTB facilities by focusing

operator knowledge on operational situations and processes unique to these types of facilities.

Most RTB facilities require operator certification at the Class D level or with industrial wastewater

treatment certifications that reflect the waste treatment at those systems. Neither of those

certification processes accurately reflect the nature of an RTB facility. The proposed RTB

certification will allow those operators to become properly certified with relevant information and

continuing education requirements.

Construction permit requirements are being streamlined to better address continuity of service

concerns for privately owned, publicly used sewer or sewerage systems. This is currently

addressed with WRD Policy and Procedure No. WRD-010, Part 41 – Sewerage Systems Permit

Approval, and the process has been somewhat cumbersome for both applicants and staff who

process construction permits. The proposed rules will include requirements for such systems and

streamline the permit process by setting clear expectations in rule for privately owned, publicly

used systems so that they may plan accordingly when submitting applications for Part 41 Permits.

Additionally, requirements for approval of plan revisions have been updated to be consistent with

the statute.

EGLE is proposing to rescind R 299.2972, R 299.2973, and R 299.2974 due to duplicative

language that exists in the Administrative Procedures Act, 1969, PA 306, as amended, the

administrative rules pertaining to the Michigan Office of Administrative Hearings and Rules, and

additional rules pertaining to contested cases and declaratory rulings.

8. Please cite the specific promulgation authority for the rules (i.e. department director,

commission, board, etc.).

Part 41 of the NREPA provides rulemaking authority to EGLE.

A. Please list all applicable statutory references (MCLs, Executive Orders, etc.).

The state statute authorizing the promulgation of these rules is MCL 324.4104(1). The state statute

authorizing the promulgation of the wastewater construction permit rules is MCL 324.4105(1).

B. Are the rules mandated by any applicable constitutional or statutory provision? If so, please

explain.

The proposed rules are not mandated by any applicable constitutional or statutory provision.

9. Please describe the extent to which the rules conflict with or duplicate similar rules,

compliance requirements, or other standards adopted at the state, regional, or federal level.

MCL 24.239

RFR-Page 3

These rules do not conflict with or duplicate with other standards at the state, regional, or federal

level.

Michigan is the only state in the United States Environmental Protection Agency’s (USEPA)

Region 5 that does not have a required or optional collection system certification requirement. Of

the other Region 5 states, Wisconsin, Minnesota, and Ohio have collection system operator

certification requirements; and Illinois and Indiana offer optional certification requirements for

collection system operators. No states in Region 5 have an RTB facility classification or operator

certification option or requirement. Wisconsin and Michigan have some certifications and

classification options that mirror the treatment taking place in those systems, but there is no

definitive classification.

Part 41 Wastewater Construction Permits are not in conflict with nor duplicative of other standards

at the state, regional, or federal level. In fact, the Part 41 Permit Program complements the federal

and state wastewater discharge permitting programs well, as Part 41 Permits ensure proper design

and construction of public-serving wastewater facilities to achieve compliance with such discharge

permits.

10. Is the subject matter of the rules currently contained in any guideline, handbook, manual,

instructional bulletin, form with instructions, or operational memoranda?

The proposed rules for collection system facility classification and certified operator requirements

are not currently outlined in any guideline, handbook, manual, instructional bulletin, form with

instructions, or operational memoranda.

For the proposed rules regarding the construction permit requirement, the following documents

will be rescinded or revised with the proposed rule changes:

WRD Policy and Procedure No. WRD-010, Part 41 – Sewerage Systems Permit Approval will be

rescinded.

Part 41 Sewerage System Construction Permit Application will be revised.

Internal review guidance and materials will be revised.

11. Are the rules listed on the department’s annual regulatory plan as rules to be processed

for the current year?

Yes.

12. Will the proposed rules be promulgated under Section 44 of the Administrative Procedures

Act, 1969 PA 306, MCL 24.244, or under the full rulemaking process?

Full Process

13. Please describe the extent to which the rules exceed similar regulations, compliance

requirements, or other standards adopted at the state, regional, or federal level.

MCL 24.239

RFR-Page 4

There are no federal or state mandates for collection system facility classifications and operator

certification requirements. Michigan is the only state in USEPA’s Region 5 that does not have a

required or optional collection system facility classification and certification requirement. No

states in Region 5 have an RTB facility classification or operator certification option or

requirement. Wisconsin and Michigan have some certifications and classification options that

mirror the treatment taking place in those systems, but there is no definitive classification.

There are no similar regulations at the federal or regional level for wastewater construction

permitting. The proposed rule revisions will update an existing state wastewater construction

permitting program and will not result in requirements that exceed the existing state regulations.

14. Do the rules incorporate the recommendations received from the public regarding any

complaints or comments regarding the rules? If yes, please explain.

Yes, the proposed rules incorporate recommendations received from a diverse stakeholder group.

The proposed collection system and RTB facility classification and operator certification rules

were developed over a series of 18 meetings, and the group recommended facility classification

levels and requirements; proposed examination questions for the future certification requirements;

and commented on EGLE’s recommendation to streamline the construction permit process.

15. If amending an existing rule set, please provide the date of the last evaluation of the rules

and the degree, if any, to which technology, economic conditions, or other factors have changed

the regulatory activity covered by the rules since the last evaluation.

MCL 24.239

RFR-Page 5

The dates of the last evaluation of the rules occurred in 1979 and 2003.

EGLE is addressing longstanding operation and maintenance issues with collection systems by

proposing a permit, facility classification, and corresponding operator certification. The additional

oversight, operation, and maintenance requirements for the collection systems will provide more

protection for public health, the environment, and will assist the receiving wastewater treatment

plants better manage their systems to meet the permit requirements.

The proposed RTB facility classification and corresponding operator certification requirement will

improve the quality of operation of RTB facilities by focusing operator knowledge on operational

situations and processes unique to these types of facilities. Most RTB facilities require operator

certification at the Class D level or with industrial wastewater treatment certifications that reflect

the waste treatment at those systems. Neither of those certification processes accurately reflect the

nature of an RTB facility. The proposed RTB certification will allow those operators to become

properly certified with relevant information and continuing education requirements.

In 2003, a Michigan Court of Appeals ruling invalidated R 299.2933(4), 1954 ACS 85, as

amended, promulgated pursuant to Part 41 [Subrule 33(4)]. Specifically, the court determined that

EGLE (then the Department of Environmental Quality) could not require persons who are

requesting a permit for constructing and operating a sewerage system designed for public use to

first obtain a resolution from the local unit of government (LUG) as a guarantee that the LUG

would assume responsibility for the operation and maintenance of the system in the event that the

private owner fails to perform these functions. The court further found that EGLE does not have

the statutory authority to force the LUG to pass the resolution. A guiding principle of Part 41 is

intended to protect property owners that depend on another person for sewage disposal. After the

court ruling, EGLE established an alternative process (Policy and Procedure No. WRD-010) to

ensure that sewerage systems governed under Part 41 are continually operated and maintained to

avoid the unauthorized discharge of raw or untreated sewage into the waters of the state and

ensure that sewage is not potentially prejudicial to the public health. The proposed rule revisions

include language for meeting these requirements and will streamline permitting for such systems

by setting clear expectations in rule for privately owned, publicly used systems so that they may

plan accordingly when submitting applications for Part 41 Permits.

Additionally, rule revisions for addressing revisions to approved plans so that the rule is consistent

with the statute are proposed. There are discrepancies as to how minor revisions are handled; the

statute requires approval for minor revisions to plans while the existing rules allow for minor

revisions without EGLE approval.

16. Are there any changes or developments since implementation that demonstrate there is no

continued need for the rules, or any portion of the rules?

EGLE is proposing to rescind R 299.2972, R 299.2973, and R 299.2974 due to duplicative

language that exists in the Administrative Procedures Act, 1969, PA 306, as amended, the

administrative rules pertaining to the Michigan Office of Administrative Hearings and Rules, and

additional rules pertaining to contested cases and declaratory rulings.

17. Is there an applicable decision record (as defined in MCL 24.203(6) and required by MCL

24.239(2))? If so, please attach the decision record.

MCL 24.239