

[Federal Register: January 7, 2008 (Volume 73, Number 4)]
[Rules and Regulations]               
[Page 1077-1080]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07ja08-10]                         

=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[Docket No. EPA-R05-RCRA-2007-0722; FRL-8514-1]

 
Michigan: Final Authorization of State Hazardous Waste Management 
Program Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is granting Michigan final authorization of the changes to 
its hazardous waste program under the Resource Conservation and 
Recovery Act (RCRA). EPA published a proposed rule on October 9, 2007 
at 72 FR 57258 and provided for public comment. The public comment 
period ended on November 8, 2007. We received no comments. No further 
opportunity for comment will be provided. EPA has determined that these 
changes satisfy all requirements needed to qualify for final 
authorization and is authorizing the State's changes through this final 
action.

DATES: The final authorization will be effective on January 7, 2008.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R05-RCRA-2007-0722. All documents in the docket 
are listed in the http://www.regulations.gov Web site 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: Michigan 
Department of Environmental Quality, Waste and Hazardous Materials 
Division, Constitution Hall--Atrium North, 525 West Allegan Street, 
Lansing, Michigan (mailing address P.O. Box 30241, Lansing, Michigan 
48909), contact Ronda Blayer, (517) 353-9548; and at EPA Region 5, 
contact Judy Greenberg at the following address.

FOR FURTHER INFORMATION CONTACT: Judy Greenberg, Michigan Regulatory 
Specialist, Land and Chemicals Division (LR-8J), EPA Region 5, 77 West 
Jackson Boulevard, Chicago, Illinois 60604, (312) 886-4179, e-mail: 
Greenberg.Judith@epa.gov.


SUPPLEMENTARY INFORMATION:

[[Page 1078]]

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 conclude that Michigan's application to revise its authorized 
program meets all of the statutory and regulatory requirements 
established by RCRA. Therefore, we are granting Michigan final 
authorization to operate its hazardous waste program with the changes 
described in the authorization application. Michigan has 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 is the effect of today's authorization decision?

    The effect of this decision is that 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. 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;
    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 action does not impose additional requirements on the 
regulated community because the regulations for which Michigan is being 
authorized by today's action are already effective and are not changed 
by today's action.

D. Proposed Rule

    On October 9, 2007 (72 FR 57258), EPA published a proposed rule. In 
that rule we proposed granting authorization of changes to Michigan's 
hazardous waste program and opened our decision to public comment. The 
Agency received no comments on this proposal. EPA has found Michigan's 
RCRA program to be satisfactory.

E. What has Michigan previously been authorized for?

    Michigan initially received final authorization on October 16, 
1986, effective October 30, 1986 (51 FR 36804), 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 April 23, 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 61175); 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 authorizing with today's action?

    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 determined that Michigan's hazardous waste program 
revision satisfies all of the requirements necessary to qualify for 
final authorization. Therefore, we are granting Michigan final 
authorization for the following program changes:

----------------------------------------------------------------------------------------------------------------
                                       Revision
 Description of Federal requirement   checklist    Federal Register  date and page    Analogous State authority
                                         \1\
----------------------------------------------------------------------------------------------------------------
Mineral Processing Secondary                167D  May 26, 1998, 63 FR 28556........  Michigan Administrative
 Materials Exclusion.                                                                 Code, R
                                                                                      299.9202(1)(b)(iii) and R
                                                                                      299.9204(1)(v), effective
                                                                                      December 16, 2004.
NESHAP: Surface Coating of                   205  April 26, 2004, 69 FR 22601......  Michigan Combined Laws,
 Automobiles and Light-Duty Trucks.                                                   324.11105a(1) and (2),
                                                                                      effective December 29,
                                                                                      2006. \2\
----------------------------------------------------------------------------------------------------------------
\1\ Revision Checklists generally reflect changes made 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 authorizing 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?

    These program revisions do not contain any State requirements that 
are 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 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. EPA will not issue any more new permits 
or new portions of permits for the provisions listed in the Table above 
after the effective date of this authorization. EPA will continue to 
implement and issue permits for HSWA

[[Page 1079]]

requirements for which Michigan is not yet authorized.

I. How does today's action 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.
    EPA will 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 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 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 authorizes 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).

13. Congressional Review Act

    EPA will submit a report containing this rule and other information 
required by the Congressional Review Act (5 U.S.C. 801 et seq.) to the 
U.S. Senate, the U.S. House of Representatives, and the Comptroller 
General of the United States prior to publication in the Federal 
Register. A major rule cannot take effect until 60 days after it is 
published in the Federal Register. This action is not a ``major rule'' 
as defined by 5 U.S.C. 804(2).

[[Page 1080]]

List of Subjects in 40 CFR Part 271

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous materials transportation, 
Hazardous waste, Indians--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: December 21, 2007.
Bharat Mathur,
Acting Regional Administrator, Region 5.
 [FR Doc. E8-16 Filed 1-4-08; 8:45 am]

BILLING CODE 6560-50-P
