

[Federal Register: October 9, 2007 (Volume 72, Number 194)]
[Proposed Rules]               
[Page 57258-57260]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09oc07-21]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[EPA-RO5-RCRA-2007-0722; FRL-8478-4]

 
Michigan: Final Authorization of State Hazardous Waste Management 
Program Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: Michigan has applied to EPA for final authorization of the 
changes to its hazardous waste program under the Resource Conservation 
and Recovery Act (RCRA). EPA has reviewed Michigan's application and 
has preliminarily determined that these changes satisfy all 
requirements needed to qualify for final authorization, and is 
proposing to authorize the State's changes.

DATES: Comments on this proposed rule must be received on or before 
November 8, 2007.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
RCRA-2007-0722 by one of the following methods:
    http://www.regulations.gov: Follow the on-line instructions for 

submitting comments.
    E-mail: feigler.judith@epa.gov.
    Mail: Ms. Judith Feigler, Michigan Regulatory Specialist, RCRA 
Programs Section, Land and Chemicals Division, U.S. Environmental 
Protection Agency, 77 West Jackson Blvd., Chicago, Illinois 60604.
    Instructions: Direct your comments to Docket ID Number EPA-R05-
RCRA-2007-0722. EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online at http://www.regulations.gov, including any personal 

information provided, unless the comment includes information claimed 
to be Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute. Do not submit information 
that you consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 

is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 

automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters or any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket, visit the EPA Docket Center homepage at http://www.epagov/epahome/dockets.htm
.

    Docket: All documents in the docket are listed in the http://www.regulations.gov
 index. Although listed in the index, some of the 

information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy. You may view and copy 

Michigan's application from 9 a.m. to 4 p.m. at the following 
addresses: U.S. EPA Region 5, 77 West Jackson Blvd., Chicago, Illinois, 
contact: Judith Feigler (312) 886-4179; or Michigan Department of 
Environmental Quality, Constitution Hall, 525 W. Allegan St., Lansing, 
Michigan (mailing address P.O. Box 30241, Lansing, Michigan 48909), 
contact Ronda Blayer (517) 353-9548.

FOR FURTHER INFORMATION CONTACT: Ms. Judith Feigler, Michigan 
Regulatory Specialist, RCRA Programs Section, Land and Chemicals 
Division, U.S. Environmental Protection Agency, 77 West Jackson Blvd., 
Chicago, Illinois 60604, (312) 886-4179, e-mail feigler.judith@epa.gov.

SUPPLEMENTARY INFORMATION: 

A. Why Are Revisions to State Programs Necessary?

    States which have received final authorization from EPA under RCRA 
section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste 
program that is equivalent to, consistent with, and no less stringent 
than the federal program. As the federal program changes, states must 
change their programs and ask EPA to authorize the changes. Changes to 
state programs may be necessary when federal or state statutory or 
regulatory authority is modified or when certain other changes occur. 
Most commonly, states must change their programs because of changes to 
EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 
260 through 266, 268, 270, 273 and 279.

B. What Decisions Have We Made in This Rule?

    We have preliminarily determined that Michigan's application to 
revise its authorized program meets all of the statutory and regulatory 
requirements established by RCRA. Therefore, we propose to grant 
Michigan final authorization to operate its hazardous waste program 
with the changes described in the authorization application. Michigan 
will have responsibility for permitting treatment, storage, and 
disposal facilities (TSDFs) within its borders (except in Indian 
Country) and for carrying out the aspects of the RCRA program described 
in its revised program application, subject to the limitations of the 
Hazardous and Solid Waste Amendments of 1984 (HSWA). New federal 
requirements and prohibitions imposed by federal regulations that EPA 
promulgates under the authority of HSWA take effect in authorized 
states before they are authorized for the requirements. Thus, EPA will 
implement those requirements and prohibitions in Michigan, including 
issuing permits, until the state is granted authorization to do so.

C. What Will Be the Effect if Michigan Is Authorized for These Changes?

    If Michigan is authorized for these changes, a facility in Michigan 
subject to RCRA will have to comply with the authorized state 
requirements instead of the equivalent federal requirements in order to 
comply with RCRA. Additionally, such persons will have to comply with 
any applicable federal requirements, such as HSWA regulations issued by 
EPA for which the state has not received authorization, and RCRA 
requirements that are not supplanted by authorized state-issued 
requirements. Michigan has enforcement responsibilities under its state 
hazardous waste program for violations of such program, but EPA retains 
its authority under RCRA sections 3007, 3008, 3013, and 7003, which 
include, among others, authority to:
    1. Do inspections, and require monitoring, tests, analyses or 
reports;

[[Page 57259]]

    2. enforce RCRA requirements and suspend or revoke permits; and
    3. take enforcement actions regardless of whether the state has 
taken its own actions.
    This proposed action would not impose additional requirements on 
the regulated community because the regulations for which Michigan 
would be authorized are already effective, and would not be changed by 
the act of authorization.

D. What Happens if EPA Receives Comments on This Action?

    If EPA receives comments on this proposed action, we will address 
those comments in a later final rule. You may not have another 
opportunity to comment. If you want to comment on this authorization, 
you must do so at this time.

E. What Has Michigan Previously Been Authorized for?

    Michigan initially received final authorization on October 16, 
1986, effective October 30, 1986 (51 FR 36804-36805) to implement the 
RCRA hazardous waste management program. We granted authorization for 
changes to Michigan's program on November 24, 1989, effective January 
23, 1990 (54 FR 48608); on January 24, 1991, effective June 24, 1991 
(56 FR 18517); on October 1, 1993, effective November 30, 1993 (58 FR 
51244); on January 13, 1995, effective January 13, 1995 (60 FR 3095); 
on February 8, 1996, effective April 8, 1996 (61 FR 4742); on November 
14, 1997, effective November 14, 1997 (62 FR 61775); on March 2, 1999, 
effective June 1, 1999 (64 FR 10111); on July 31, 2002, effective July 
31, 2002 (67 FR 49617); and on March 9, 2006, effective March 9, 2006 
(71 FR 12141).

F. What Changes Are We Proposing?

    On May 21, 2007, Michigan submitted a complete program revision 
application seeking authorization of its changes in accordance with 40 
CFR 271.21. We have preliminarily determined that Michigan's hazardous 
waste management program revision satisfies all requirements necessary 
to qualify for final authorization. Therefore, we propose to grant 
Michigan final authorization for the following program changes:

----------------------------------------------------------------------------------------------------------------
                                           Revision
  Description of Federal  requirement     checklist    Federal Register date and     Analogous state authority
                                             \1\                 page
----------------------------------------------------------------------------------------------------------------
Mineral Processing Secondary Materials          167D  May 26, 1998, 63 FR 28556.  Michigan Administrative Code,
 Exclusion.                                                                        R 299.9202(1)(b)(iii) and R
                                                                                   299.9204(1)(v), effective
                                                                                   December 16, 2004
NESHAP: Surface Coating of Automobiles           205  April 26, 2004, 69 FR       Michigan Combined Laws,
 and Light-Duty Trucks.                                22601.                      324.11105a(1) and (2),
                                                                                   effective December 29,
                                                                                   2006.\2\
----------------------------------------------------------------------------------------------------------------
\1\ Revision Checklists generally reflect changes made to the federal regulations pursuant to a particular
  Federal Register notice and EPA publishes these checklists as aids to states to use for the development of
  their authorization application. See EPA's RCRA State Authorization Web Page at http://www.epa.gov/epaoswer/
  hazwaste/state/.

\2\ The legislation we are proposing to authorize contains a ``sunset provision'' by which the substantive
  requirements of the state legislation will lapse after a period of three years unless the legislature
  explicitly reauthorizes it. It is EPA's position that once program revisions are authorized, the substantive
  requirements of the legislation will remain federally enforceable and our authorization of the revised program
  will persist, until the state requests and receives authorization of superseding program revisions, despite
  any lapse in the legal effect or enforceability of statutory authority on the state level.

G. Where Are the Revised State Rules Different From the Federal Rules?

    There are no state requirements in this program revision considered 
to be more stringent or broader in scope than the analogous federal 
requirements.

H. Who Handles Permits After the Authorization Takes Effect?

    Michigan will continue to issue permits for all the provisions for 
which it is authorized and will administer the permits it issues. EPA 
will continue to administer any RCRA hazardous waste permits or 
portions of permits which we issued prior to the effective date of this 
authorization until they expire or are terminated. We will not issue 
any more new permits or new portions of permits for the provisions 
listed in the Tables above after the effective date of this 
authorization. EPA will continue to implement and issue permits for 
HSWA requirements for which Michigan is not yet authorized.

I. How Would Authorizing Michigan for These Revisions Affect Indian 
Country (18 U.S.C. 1151) in Michigan?

    Michigan is not authorized to carry out its hazardous waste program 
in Indian country within the state, as defined in 18 U.S.C. 1151. This 
includes:
    1. All lands within the exterior boundaries of Indian reservations 
within the State of Michigan;
    2. Any land held in trust by the U.S. for an Indian tribe; and
    3. Any other land, whether on or off an Indian reservation that 
qualifies as Indian country.
    Therefore, authorizing Michigan for these revisions would not 
affect Indian County in Michigan. EPA would continue to implement and 
administer the RCRA program in Indian country. It is EPA's long-
standing position that the term ``Indian lands'' used in past Michigan 
hazardous waste approvals is synonymous with the term ``Indian 
country.'' Washington Dep't of Ecology v. U.S. EPA, 752 F.2d 1465, 
1467, n.1 (9th Cir. 1985). See 40 CFR 144.3 and 258.2.

J. What Is Codification and Is EPA Codifying Michigan's Hazardous Waste 
Program as Authorized in This Rule?

    Codification is the process of placing the state's statutes and 
regulations that comprise the state's authorized hazardous waste 
program into the Code of Federal Regulations. We do this by referencing 
the authorized state rules in 40 CFR part 272. Michigan's rules, up to 
and including those revised October 19, 1991, have previously been 
codified through incorporation-by-reference effective April 24, 1989 
(54 FR 7421, February 21, 1989); as amended effective March 31, 1992 
(57 FR 3724, January 31, 1992). We reserve the amendment of 40 CFR part 
272, subpart X, for the codification of Michigan's program changes 
until a later date.

K. Statutory and Executive Order Reviews

    This proposed rule only authorizes hazardous waste requirements 
pursuant to RCRA 3006 and imposes no requirements other than those 
imposed by State law (see Supplementary Information, Section A. Why are 
Revisions to State Programs Necessary?). Therefore this rule complies 
with applicable executive orders and statutory provisions as follows:

1. Executive Order 18266: Regulatory Planning Review

    The Office of Management and Budget has exempted this rule from its 
review

[[Page 57260]]

under Executive Order 12866 (58 FR 51735, October 4, 1993).

2. Paperwork Reduction Act

    This rule does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 
et seq.).

3. Regulatory Flexibility Act

    After considering the economic impacts of today's rule on small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), I 
certify that this rule will not have a significant economic impact on a 
substantial number of small entities.

4. Unfunded Mandates Reform Act

    Because this rule approves pre-existing requirements under state 
law and does not impose any additional enforceable duty beyond that 
required by state law, it does not contain any unfunded mandate or 
significantly or uniquely affect small governments, as described in the 
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

5. Executive Order 13132: Federalism

    Executive Order 13132 (64 FR 43255, August 10, 1999) does not apply 
to this rule because it will not have federalism implications (i.e., 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government).

6. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175 (65 FR 67249, November 9, 2000) does not 
apply to this rule because it will not have tribal implications (i.e., 
substantial direct effects on one or more Indian tribes, on the 
relationship between the federal government and Indian tribes, or on 
the distribution of power and responsibilities between the federal 
government and Indian tribes.)

7. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    This rule is not subject to Executive Order 13045 (62 FR 19885, 
April 23, 1997), because it is not economically significant as defined 
in Executive Order 12866 and because the EPA does not have reason to 
believe the environmental health or safety risks addressed by this 
action present a disproportionate risk to children.

8. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211 (66 FR 28355, May 
22, 2001), because it is not a significant regulatory action as defined 
in Executive Order 12866.

9. National Technology Transfer Advancement Act

    EPA approves State programs as long as they meet criteria required 
by RCRA, so it would be inconsistent with applicable law for EPA, in 
its review of a State program, to require the use of any particular 
voluntary consensus standard in place of another standard that meets 
requirements of RCRA. Thus, the requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) do not apply to this rule.

10. Executive Order 12988

    As required by section 3 of Executive Order 12988 (61 FR 4729, 
February 7, 1996), in issuing this rule, EPA has taken the necessary 
steps to eliminate drafting errors and ambiguity, minimize potential 
litigation, and provide a clear legal standard for affected conduct.

11. Executive Order 12630: Evaluation of Risk and Avoidance of 
Unanticipated Takings

    EPA has complied with Executive Order 12630 (53 FR 8859, March 18, 
1988) by examining the takings implications of the rule in accordance 
with the Attorney General's Supplemental Guidelines for the Evaluation 
of Risk and Avoidance of Unanticipated Takings issued under the 
executive order.

12. Executive Order 12898: Federal Actions to Address Environmental 
Justice in Minority Populations and Low Income Populations

    Because this rule proposes authorization of pre-existing state 
rules and imposes no additional requirements beyond those imposed by 
state law and there are no anticipated significant adverse human health 
or environmental effects, the rule is not subject to Executive Order 
12898 (59 FR 7629, February 16, 1994).

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.

    Authority: This action 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: September 26, 2007.
Bharat Mathur,
Acting Regional Administrator, Region 5.
[FR Doc. E7-19634 Filed 10-5-07; 8:45 am]

BILLING CODE 6560-50-P
