Proposed Rule2021-26829
Michigan: Proposed Authorization of State Hazardous Waste Management Program Revisions
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 13, 2021
Issuing agencies
Environmental Protection Agency
Abstract
Michigan has applied to the Environmental Protection Agency (EPA) for final authorization of changes to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA), as amended. EPA has reviewed Michigan's application and has determined that these changes satisfy all requirements needed to qualify for final authorization. Therefore, we are proposing to authorize the State's changes. EPA seeks public comment prior to taking final action.
Full Text
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<title>Federal Register, Volume 86 Issue 236 (Monday, December 13, 2021)</title>
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[Federal Register Volume 86, Number 236 (Monday, December 13, 2021)]
[Proposed Rules]
[Pages 70790-70793]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-26829]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 271
[EPA-R05-RCRA-2021-0389; FRL-9191-01-R5]
Michigan: Proposed Authorization of State Hazardous Waste
Management Program Revisions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: Michigan has applied to the Environmental Protection Agency
(EPA) for final authorization of changes to its hazardous waste program
under the Resource Conservation and Recovery Act (RCRA), as amended.
EPA has reviewed Michigan's application and has determined that these
changes satisfy all requirements needed to qualify for final
authorization. Therefore, we are proposing to authorize the State's
changes. EPA seeks public comment prior to taking final action.
DATES: Comments must be received on or before January 27, 2022.
ADDRESSES: Submit your comments by one of the following methods:
<bullet> Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Follow the on-line instructions for submitting comments.
<bullet> Email: <a href="/cdn-cgi/l/email-protection#6f221a030306011c412e01080a030e2f0a1f0e41080019"><span class="__cf_email__" data-cfemail="df92aab3b3b6b1acf19eb1b8bab3be9fbaafbef1b8b0a9">[email protected]</span></a>.
<bullet> Instructions: EPA must receive your comments by January
27, 2022. Direct your comments to Docket ID Number EPA-R05-RCRA-2021-
0389.
EPA's policy is that all comments received will be included in the
public docket without change and may be made available online at
<a href="http://www.regulations.gov">www.regulations.gov</a>, 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 <a href="http://www.regulations.gov">www.regulations.gov</a>, or email.
The federal <a href="http://www.regulations.gov">www.regulations.gov</a> website 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 email comment directly to EPA without going through
<a href="http://www.regulations.gov">www.regulations.gov</a>, your email 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, 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 <a href="http://www.epa.gov/epahome/dockets.htm">www.epa.gov/epahome/dockets.htm</a>).
Docket: All documents in the docket are listed in the
<a href="http://www.regulations.gov">www.regulations.gov</a>, index. Although listed in the index, some
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 <a href="http://www.regulations.gov">www.regulations.gov</a>, or in hard copy.
FOR FURTHER INFORMATION CONTACT: Angela Mullins, RCRA C&D Section,
Land, Chemicals, and Redevelopment Division, U.S. Environmental
Protection Agency, Region 5, 77 West Jackson Boulevard, LL-17J,
Chicago, IL 60604. Angela Mullins can be reached by telephone at (312)
886-4237 or via email at <a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="69041c050500071a4708070e0c0508290c1908470e061f">[email protected]</a>.
SUPPLEMENTARY INFORMATION:
A. Why are revisions to state programs necessary?
States that 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 268, 270, 273, and 279.
New Federal requirements and prohibitions imposed by Federal
regulations that EPA promulgates pursuant to the Hazardous and Solid
Waste Amendments of 1984 (HSWA) take effect in authorized states at the
same time that they take effect in unauthorized states. Thus, EPA will
implement those requirements and prohibitions in Michigan including the
issuance of new permits implementing those requirements, until the
State is granted authorization to do so.
B. What decisions has EPA made in this rule?
On April 8, 2021, Michigan submitted a complete program revision
application seeking authorization of changes to its hazardous waste
program that correspond to certain Federal rules promulgated between
January 13, 2015 and January 3, 2018 (also known as RCRA Clusters XXV
and XXVI). EPA concludes that Michigan's application to revise its
authorized program meets all of the statutory and regulatory
requirements established under RCRA, as set forth in RCRA section
3006(b), 42 U.S.C. 6926(b), and 40 CFR part 271. Therefore, EPA
proposes to grant Michigan final authorization to operate its hazardous
waste program with the changes described in the authorization
application, and as outlined below in Section G of this document.
Michigan has responsibility for permitting treatment, storage, and
disposal facilities 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 HSWA, as
discussed above.
C. What is the effect of this proposed authorization decision?
If Michigan is authorized for the changes described in Michigan's
authorization application, these changes will become part of the
authorized State hazardous waste program and will therefore be
federally enforceable. Michigan will continue to have primary
enforcement authority and responsibility for its State hazardous waste
program. EPA would maintain its authorities under RCRA sections 3007,
3008, 3013, and 7003, including its authority to:
<bullet> Conduct inspections, and require monitoring, tests,
analyses and reports;
<bullet> Enforce RCRA requirements, including authorized State
program requirements, and suspend or revoke permits; and
<bullet> Take enforcement actions regardless of whether the State
has taken its own actions.
[[Page 70791]]
This action will not impose additional requirements on the
regulated community because the regulations which EPA is proposing to
authorize Michigan are already effective under state law and are not
changed by this proposed action.
D. What happens if EPA receives comments that oppose this action?
If EPA receives comments on this proposed action, we will address
all such comments in a later final rule. You may not have another
opportunity to comment. If you want to comment on this authorization,
you should 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); on March 9, 2006, effective March 9, 2006 (71
FR 12141); on January 7, 2008 (73 FR 1077), effective January 7, 2008;
on March 2, 2010, effective March 2, 2010 (75 FR 9345); on August 28,
2015 (80 FR 52194), effective August 28, 2015; and on June 6, 2019 (84
FR 26359), effective June 6, 2019.
F. What changes are we proposing with this action?
On April 8, 2021, Michigan submitted a final complete program
revision application, seeking authorization of changes to its hazardous
waste management program in accordance with 40 CFR 271.21. EPA proposes
to determine, subject to receipt of written comments that oppose this
action, that Michigan's hazardous waste program revisions are
equivalent to, consistent with, and no less stringent than the Federal
program, and therefore satisfy all of the requirements necessary to
qualify for final authorization. Therefore, EPA is proposing to
authorize Michigan for the following program changes:
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\1\ Revision Checklists generally reflect changes to Federal
regulations pursuant to a particular Federal Register document; EPA
publishes these checklists as aids to states to use for development
of their authorization revision application. See EPA's RCRA State
Authorization website at <a href="https://www.epa.gov/epawaste/laws-regs/state/index.htm">https://www.epa.gov/epawaste/laws-regs/state/index.htm</a>.
\2\ Original rule authorized on June 6, 2019. Court decisions
from September 2018 were not included in original authorization.
Checklist 233D2 is being resubmitted to include impacted sections.
Table 1--Authorized Michigan Program Changes
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Analogous state
Federal Register authority (MAC R
Description of Federal date and page (and/ 299.***, effective
requirement and revision or RCRA statutory August 3, 2020,
checklist number \1\ authority) unless otherwise
specified)
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Changes affecting all non-waste January 13, 2015, 9202(7), 11003(1),
determinations and variances, 80 FR 1694; May 9202(8),
Checklist 233A-2. 30, 2018, 83 FR effective April
24664. 5, 2017.
Legitimacy-related provisions, January 13, 2015, 9102(t), 9104(d),
including prohibition of sham 80 FR 1694; May 9232(1), 9232(2),
recycling, and definitions of 30, 2018, 83 FR 9202(1), and
legitimacy and contained, 24664. 9107(v),
checklist 233B-2. effective April
5, 2017.
2008 DSW exclusions and non- January 13, 2015, 92013(v), 9104(e)
waste determinations, including 80 FR 1694; May and (bb),
revisions from 2015 DSW final 30, 2018, 83 FR 9105(b), 9108(h),
rule and 2018 DSW final rule, 24664. 9202(1), (6) and
checklist 233D2-2 \2\. (7), 11003(1),
9107 (b),
9204(1), 9201(1),
9234(1), and
9519(5),
effective April
5, 2017.
Imports and Exports of Hazardous November 28, 2016, 9101(s), 9103(a),
Waste, Checklist 236. 81 FR 85696. 9107(c),
11001(7), 9204(4)
and (6), 9206(3)
and (6), 9231(1)
and (7), 11003(1)
and (2), 9301(7),
9308(7), 9312(3),
9309, 9310,
9314(1) and (2),
9401(5), 9409(1)
and (5), 9605(1)
and (4), 9608(1),
(4), and (12),
9601(3) and (9),
9803(2), 9804(7)-
(11), 9228(4),
(5), (6), (7),
(10) and (11).
Hazardous Waste Generator Rule November 28, 2016, 9101(o), 9102(d)
Improvements Checklist 237. 81 FR 85730. and (n), 9105(h),
(dd), 9107(z),
9109(ii), 11002,
9201, 9107(r),
9205, 9205(1),
9206(1)(c),
9214(2)-(4),
9234(1) and (2),
11003(1) and (2),
9104(s), 9301(1),
(2), (3), (7),
(9), and (10),
9302(1), (2),
(3), and (7),
9311(1) and (7),
9303(1)-(8),
9304(1)--(3),
9305(1)--(4),
9306(1)--(5),
9307(1)--(7),
9308(1)--(7),
9309, 9310(1) and
(2), 9311(1)-(3)
and (5)-(7),
9312(1)-(3) and
(7), 9315(1)-(3),
9316(1)-(7),
9103, 9106, 9109,
9401(1), 9404(1),
9503(1)(a) and
(b), 9605(1) and
(4), 9608(3),
9610(1), 9614(1)
and (2), 9615(1)
and (7), 9631(1)
and (2), 9634(1)
and (2),
9503(1)(a) and
(b), 9601(1),
(2), (3), and
(9), 9804,
9822(13), 9313(1)
and (2), 9413(1)
and (2), 9627(1)
and (2), 9519,
9229(3), 9229(2),
9809(1)(a).
Confidentiality Determinations December 26, 2017 9231(1) and (7),
for Hazardous Waste Export and 82 FR 60894. 11103(1) and (2),
Import Documents, Checklist 238. 9314(1)-(3).
Hazardous Waste Electric January 3, 2018, 9601(3) and (9),
Manifest User Fee Rule, 83 FR 420. 9608(1), (9),
Checklist 239. (14), and (15),
11003(1) and (2),
9309(1) and (6),
9409(1) and (5),
9634(1) and (2).
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[[Page 70792]]
Table 2--Equivalent State-Initiated Changes
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Michigan administrative rules (MAC R Effective date of amended State
299.*** unless otherwise specified) requirement
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9103(i) (definition of ``EPA February 21, 2021.
Acknowledgement of Consent (AOC)'',
9106(s) (definition of ``Primary
exporter''), 9228, 9314, 9405(2)(f)
and (3)(d), 9511(5)(b), 9608(4).
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G. Which revised state rules are different from the Federal rules?
When revised state rules differ from the Federal rules in the RCRA
state authorization process, EPA determines whether the state rules are
equivalent to, more stringent than, or broader in scope than the
Federal program. Pursuant to Section 3009 of RCRA, 42 U.S.C. 6929,
state programs may contain requirements that are more stringent than
the Federal regulations. Such more stringent requirements can be
federally authorized and, once authorized, become federally
enforceable. Although the statute does not prevent states from adopting
regulations that are broader in scope than the Federal program, states
cannot receive Federal authorization for such regulations, and they are
not federally enforceable.
EPA considers the following Michigan requirements to be more
stringent than the Federal requirements:
Michigan does not adopt standardized permits, making the State
requirements more stringent than the Federal requirement at 40 CFR
267.71(a)(4)-(6)(i) and (ii), (c), (d); and 267.1(a).
Michigan does not allow containment buildings, making its State
requirements more stringent than the Federal requirements at 40 CFR
262.16(b)(4)(iii)(B), (5)(i) and (ii)(A) through (C), (6)(i) and
(ii)(A) through (D), (7), and (8)(i) through (vi); 262.17(a)(3)(iii)(A)
and (B), (4)(i) and (ii)(A) through (C), (5)(i)(B) and (ii)(B),
(8)(i)(B), (c)(4)(i)(C)(1)and (2), and (iv)(B).
Michigan's rules at R 299.9304(1)(e)(xii)(B), R 299.9305(1)(e)(B),
R 299.9316(2)(e)(i)(B)(2), R 299.9316(2)(e)(i)(B)(2), R
299.9316(3)(e)(i) (B)(2), and R 299.9316(3)(e) (ii)(B) (2) are more
stringent than the Federal analogs at 40 CFR 262.14(a)(5)(viii)(B)(2),
232.15(a)(5)(ii), 262.232(a)(4)(i)(B), 262.232(a)(4)(ii)(B),
262.232(b)(4)(i) (B), 262.232(b)(4)(ii) (B), and 268.50(a)(1) since the
State's rulings include the requirement of labeling each container with
a description of the waste or the hazardous waste number while the
Federal rule only requires an indication of the hazards of the
contents. These requirements would become part of Michigan's authorized
program and would be federally enforceable.
EPA also considers the following State requirements go beyond the
scope of the Federal program:
Michigan's rules at R 299.9214(3) and (4) are broader in scope than
the Federal analog at 40 CFR 261.33(f) with respect to the chemicals
listed in table 205c that are not included in Federal regulations. This
expands the number of chemicals listed as toxic wastes by the rule.
Broader-in-scope requirements do not become part of the authorized
program and EPA cannot enforce them. Although regulated entities must
comply with these requirements in accordance with State law, they are
not RCRA requirements.
H. Who handles permits after final authorization takes effect?
When the final 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 EPA issued
prior to the effective date of the proposed 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 Table 1after the
effective date of the final authorization. EPA will continue to
implement and issue permits for HSWA requirements for which Michigan is
not yet authorized. EPA has the authority to enforce state-issued
permits after the State is authorized.
I. How does this 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 or abutting 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, this action has no effect on Indian country. EPA retains
jurisdiction over Indian country and will continue to implement and
administer the RCRA program on these lands. 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 citations and references to
a state's statutes and regulations that comprise the state's authorized
hazardous waste program into the Code of Federal Regulations. EPA does
this by adding those citations and references to the authorized state
rules in 40 CFR part 272. EPA previously codified Michigan's rules up
to and including those revised October 19, 1991 effective April 24,
1989 (54 FR 7421, February 21, 1989); as amended effective March 31,
1992 (57 FR 3724, January 31, 1992). EPA is not proposing to codify the
authorization of Michigan's changes at this time. However, EPA reserves
the ability to amend 40 CFR part 272, subpart X, for the authorization
of Michigan's program changes at a later date.
K. Statutory and Executive Order Reviews
The Office of Management and Budget (OMB) has exempted this action
from the requirements of Executive Order 12866 (58 FR 51735, October 4,
1993) and 13563 (76 FR 3821, January 21, 2011). This action proposes to
authorize State requirements for the purpose of RCRA section 3006 and
imposes no additional requirements beyond those imposed by State law.
Therefore, this action is not subject to review by OMB. This
authorization is not an Executive Order 13771 (82 FR 9339, February 3,
2017) regulatory action because actions such as this proposed
authorization of Michigan's revised hazardous waste program under RCRA
are exempted under Executive Order 12866. Accordingly, I certify that
this action will not have a significant economic impact on a
substantial number of small
[[Page 70793]]
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
Because this action proposes to authorize 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 (2 U.S.C. 1531-
1538). For the same reason, this action also does not significantly or
uniquely affect the communities of tribal governments, as specified by
Executive Order 13175 (65 FR 67249, November 9, 2000). This action will
not have 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,
as specified in Executive Order 13132 (64 FR 43255, August 10, 1999),
because it merely proposes to authorize State requirements as part of
the State RCRA hazardous waste program without altering the
relationship or the distribution of power and responsibilities
established by RCRA. This action also is not subject to Executive Order
13045 (62 FR 19885, April 23, 1997), because it is not economically
significant, and it does not make decisions based on environmental
health or safety risks. This action is not subject to Executive Order
13211, ``Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001)
because it is not a significant regulatory action under Executive Order
12866.
Under RCRA section 3006(b), EPA grants a state's application for
authorization as long as the state meets the criteria required by RCRA.
It would thus be inconsistent with applicable law for EPA, when it
reviews a state authorization application, to require the use of any
particular voluntary consensus standard in place of another standard
that otherwise satisfies the 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. As required
by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996),
in proposing this rulemaking, EPA has taken the necessary steps to
eliminate drafting errors and ambiguity, minimize potential litigation,
and provide a clear legal standard for affected conduct. EPA has
complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by
examining the takings implications of this action in accordance with
the ``Attorney General's Supplemental Guidelines for the Evaluation of
Risk and Avoidance of Unanticipated Takings'' issued under the
executive order. This action does not impose an information collection
burden under the provisions of the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.). ``Burden'' is defined at 5 CFR 1320.3(b).
Executive Order 12898 (59 FR 7629, February 16, 1994) establishes
Federal executive policy on environmental justice. Its main provision
directs Federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States. Because this action proposes
authorization of pre-existing State rules which are at least equivalent
to, and no less stringent than existing Federal requirements, and
imposes no additional requirements beyond those imposed by State law,
and there are no anticipated significant adverse human health or
environmental effects, this proposed rule is not subject to Executive
Order 12898.
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: December 3, 2021.
Debra Shore,
Regional Administrator, Region 5.
[FR Doc. 2021-26829 Filed 12-10-21; 8:45 am]
BILLING CODE 6560-50-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.