[Federal Register Volume 70, Number 225 (Wednesday, November 23, 2005)]
[Proposed Rules]
[Pages 70761-70765]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-23213]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[FRL-8001-4]


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 the EPA for final authorization of the 
changes to its hazardous waste management program under the Resource 
Conservation and Recovery Act (RCRA). EPA has determined that these 
changes satisfy all requirements needed to qualify for final 
authorization and is proposing to authorize the state's changes through 
this proposed final action.

DATES: Written comments must be received on or before December 23, 
2005.

ADDRESSES: Send written comments to Ms. Judy Feigler, Michigan 
Regulatory Specialist, U.S. Environmental Protection Agency, Waste, 
Pesticides and Toxics Division (DM-7J), 77 W. Jackson Blvd., Chicago, 
Illinois 60604, phone number: (312) 886-4179. We must receive your 
comments by December 23, 2005. You can view and copy Michigan's 
application from 9 a.m. to 4 p.m. at the following addresses: Waste 
Management Division, Michigan Department of Environmental Quality, 
Constitution Hall--Atrium North, Lansing, Michigan (mailing address 
P.O. Box 30241, Lansing, Michigan 48909), contact Ronda Blayer (517) 
353-9548; and EPA Region 5, contact Judy Feigler at the following 
address.

FOR FURTHER INFORMATION CONTACT: Judy Feigler, Michigan Regulatory 
Specialist, U.S. EPA, DM-7J, 77 W. Jackson Blvd., Chicago, IL 60604, 
(312) 886-4179.

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 conclude 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 management 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 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?

    This decision means that a facility in Michigan subject to RCRA 
will now have to comply with the authorized state requirements (listed 
in section F of

[[Page 70762]]

this notice) instead of the equivalent federal requirements in order to 
comply with RCRA. Michigan has enforcement responsibilities under its 
state hazardous waste management program for violations of such 
program, but EPA retains its authority under RCRA sections 3007, 3008, 
3013, and 7003, which include, among others, the authority to:
    <bullet> Do inspections, and require monitoring, tests, analyses or 
reports;
    <bullet> Enforce RCRA requirements and suspend or revoke permits; 
and
    <bullet> 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. What Happens if EPA Receives Comments That Oppose This Action?

    If EPA receives comments that oppose this authorization, we will 
address all public comments in a later Federal Register. 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); and on July 31, 2002, effective 
July 31, 2002 (67 FR 49617).

F. What Changes Are We Authorizing With Today's Action?

    On September 7, 2005, Michigan submitted a complete program 
revision application seeking authorization of its changes in accordance 
with 40 CFR 271.21. We now make a final decision, subject to receipt of 
written comments that oppose this action, 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:

                                 Program Revisions Based on Federal RCRA Changes
----------------------------------------------------------------------------------------------------------------
                                                                 Federal Register date
     Description of federal        Checklist No.,  if relevant   and page (and/or RCRA       Analogous state
           requirement                                            statutory authority)          authority
----------------------------------------------------------------------------------------------------------------
HSWA Codification Rule;           17C.........................  July 15, 1985, 50 FR     R 299.9204(2)(a) and
 Household Waste (Resource                                       28702.                   (2)(a)(i)-(ii).
 Recovery Facilities).
Corrective Action Management      121.........................  February 16, 1993, 58    R 299.9102(s) and (cc),
 Units and Temporary Units.                                      FR 8658.                 R 299.9103(r), R
                                                                                          299.9105(c)(vii), R
                                                                                          299.9105(t), R
                                                                                          299.9107(j), R
                                                                                          299.9311, R 299.9413,
                                                                                          R 299.9519(9), R
                                                                                          299.9601(1), (2)(k)
                                                                                          and (l) and (3)(a), R
                                                                                          299.9627, R
                                                                                          299.9629(3)(a) and
                                                                                          (b), R 299.9635(3), R
                                                                                          299.9636, and R
                                                                                          299.11003(1)(u).
Waste Water Treatment Sludges     184.........................  March 8, 2000, 65 FR     R 299.9306(1)(d) and
 from Metal Finishing Industry;                                  12378.                   (7)-(10).
 180-day Accumulation Time.
Organobromine Production Waste    187.........................  June 8, 2000, 65 FR      R 299.9220 and R
 and Petroleum Refining Process                                  36365.                   299.11003(1)(u).
 Waste: Technical Correction.
NESHAPS: Final Standards for      188, 188.1, 188.2...........  July 10, 2000, 65 FR     R 299.9230(2) and (3);
 Hazardous Air Pollutants for                                    42292; May 14, 2001,     R 299.9519(5)(j)(v); R
 Hazardous Waste Combusters.                                     66 FR 24270; July 3,     299.9623(2), (3)(b)
                                                                 2001, 66 FR 35087.       and (11); and R
                                                                                          299.11003(1)(n).
Chlorinated Aliphatics            189.........................  November 8, 2000, 65 FR  R 299.9222, R 299.9311,
 Production Wastes; Land                                         67068.                   R 299.9413, R
 Disposal Restrictions for Newly                                                          299.9627, and R
 Identified Wastes; and CERCLA                                                            299.11003(1)(j) and
 Hazardous Substance Designation                                                          (u).
 and Reportable Quantities.
Deferral of Phase IV Standards    190.........................  December 26, 2000, 65    R 299.9311, R 299.9413,
 for PCBs as a Constituent                                       FR 81373.                R 299.9627, and R
 Subject to Treatment in Soil.                                                            299.11003(1)(u).
Storage, Treatment,               191.........................  May 16, 2001, 66 FR      R 299.9101(q), R
 Transportation and Disposal of                                  27218.                   299.9102(d) and (z), R
 Mixed Wastes.                                                                            299.9103(d) and (k), R
                                                                                          299.9104, R
                                                                                          299.9105(b), (j), (k),
                                                                                          (v), (w), (z) and
                                                                                          (aa), R 299.9203, R
                                                                                          299.9822(2)-(14), R
                                                                                          299.9823(2)-(4) and
                                                                                          (6)-(12).
Mixture and Derived-From Rule     192A........................  May 16, 2001, 66 FR      R 299.9203(1)(c), (3),
 Revisions.                                                      27266.                   (7) and (8).
Land Disposal Restrictions        192B........................  May 16, 2001, 66 FR      R 299.9311, R 299.9413,
 Correction.                                                     27266.                   R 299.9627, and R
                                                                                          299.11003(1)(u).
Change of EPA Mailing Address;    193.........................  June 28, 2001, 66 FR     R 299.11005(2).
 Additional Technical Amendments                                 34374.
 and Corrections.

[[Page 70763]]

 
Correction to the Hazardous       194.........................  October 3, 2001, 66 FR   R 299.9203(1)(c) and
 Waste Identification Rule                                       50332.                   (7)(c).
 (HWIR): Revisions to the
 Mixture and Derived-From Rules.
Inorganic Chemical Manufacturing  195, 195.1..................  November 20, 2001, 66    R 299.9204(2)(o), R
 Wastes Information and Listing.                                 FR 58258; April 9,       299.9222, R 299.9311,
                                                                 2002, 67 FR 17119.       R 299.9413, R
                                                                                          299.9627, and R
                                                                                          299.11003(1)(j) and
                                                                                          (u).
CAMU Amendments.................  196.........................  January 22, 2002, 67 FR  R 299.9102(s) and (t),
                                                                 2962.                    R 299.9107(j), R
                                                                                          299.9635, R 299.9638,
                                                                                          and R 299.9639.
Hazardous Air Pollutant           197.........................  February 13, 2002, 67    R 299.9504(4), (15) and
 Standards for Combusters:                                       FR 6792.                 (20), R
 Interim Standards.                                                                       299.9508(1)(b), R
                                                                                          299.9601(2)(i) and
                                                                                          (7), R 299.9623, R
                                                                                          299.9640, R
                                                                                          299.9808(4), (7) and
                                                                                          (9), R
                                                                                          299.11003(1)(v).
Hazardous Air Pollutant           198.........................  February 14, 2002, 67    R 299.9519(5)(j)(v), R
 Standards for Combusters;                                       FR 6968.                 299.9808(2), (3), (4),
 Corrections.                                                                             (7) and (9); and R
                                                                                          299.11003(1)(r).
Vacatur of Mineral Processing     199.........................  March 13, 2002, 67 FR    R 299.9202(1)(b)(iii),
 Spent Materials Being Reclaimed                                 11251.                   R 299.9204(1)(v), and
 as Solid Wastes and TCLP Use                                                             R 299.9212(4).
 with MGP Waste.
Zinc Fertilizers Made From        200.........................  July 24, 2002, 67 FR     R 299.9204(1)(x) and
 Recycled Hazardous Secondary                                    48393.                   (y), R 299.9311, R
 Materials.                                                                               299.9413, R 299.9627,
                                                                                          R 299.9801(3) and (5),
                                                                                          and R 299.11003(1)(u).
Land Disposal Restrictions:       201.........................  October 7, 2002, 67 FR   R 299.9311, R 299.9413,
 National Treatment Variance to                                  48393.                   R 299.9627, and R
 Designate New Treatment                                                                  299.11003(1)(u).
 Subcategories for Radioactively
 Contaminated Cadmium-, Mercury-
 , and Silver-Containing
 Batteries.
NESHAP: Standards for Hazardous   202.........................  December 19, 2002, 67    R 299.9504(4) and (15)
 Air Pollutants for Hazardous                                    FR 77687.                and R 299.9508(1)(b),
 Waste Combusters: Corrections.                                                           R 299.9623(8), and R
                                                                                          299.9808(7) and (9).
Recycled Used Oil Management      203.........................  July 30, 2003, 68 FR     R 299.9205(8), R
 Standards.                                                      44659.                   299.9809 (1)(e) and
                                                                                          (2)(p), and R
                                                                                          299.9815(1)(b) and
                                                                                          (3)(f).
----------------------------------------------------------------------------------------------------------------


                                          State-Initiated Modifications
----------------------------------------------------------------------------------------------------------------
       State requirement           Effective date                           Federal analog
----------------------------------------------------------------------------------------------------------------
MAC R 299.9205(4)..............  October 15, 1996..  40 CFR 261.5 and 262.34.
MAC R 299.9206(3)..............  September 11, 2000  40 CFR 261.6(a)(3).
MAC R 299.9206(3)(g)...........  September 11, 2000  40 CFR 261.6(1)(2).
MAC R 299.9207(3)..............  June 21, 1994.....  40 CFR 261.7(b)(1)(i).
MAC R 299.9212(1), (2), and (3)  October 15, 1996..  40 CFR 261.21, 261.22, and 261.23.
MAC R 299.9215(3)..............  April 20, 1988....  40 CFR 261.21(c).
MAC R 299.9303(4)..............  September 22, 1998  40 CFR 262.12(b) and 270.11.
MAC R 299.9304(2)(h) and (4)(c)  October 15, 1996..  40 CFR 262.20.
MAC R 299.9304(6)..............  October 15, 1996..  None.
MAC R 299.9306(1)(e) and (f)...  October 15, 1996..  40 CFR 262.34(a)(1).
MAC R 299.9307(5)-(7)..........  September 22, 1998  40 CFR 262.40(c).
MAC R 299.9401.................  October 15, 1996..  40 CFR 263.10.
MAC R 299.9404.................  October 15, 1996..  40 CFR 263.12.
MAC R 299.9410(1) and (3)......  October 15, 1996..  40 CFR 263.30 and 263.31.
MAC R 299.9503(1)(i) and (k)     October 15, 1996..  40 CFR 262.34.
 and (5).
MAC R 299.9508(1)(f)...........  October 15, 1996..  40 CFR 270.14(b)(17).
MAC R 299.9514(1) and (2)(c)...  September 22, 1998  40 CFR 124.12.
MAC R 299.9516(3)..............  October 15, 1996..  40 CFR 270.50.
MAC R 299.9611(4)..............  October 15, 1996..  None.
MAC R 299.9629(3)(a)(ii) and     September 11, 2000  40 CFR 264.90(a) and 264.101(b).
 (iii) and (3)(b)(ii) and (iii).
MAC R 299.9633.................  October 15, 1996..  40 CFR 260.10, definition of ``treatment''.
MAC R 299.9701(2) (removal) and  September 11, 2000  40 CFR 264.140(a) and (c).
 (3) renumbered as (2).
MAC R 299.9713(6) and (7)......  October 15, 1996..  40 CFR 264.101(b).
MAC R 299.11004(4).............  September 11, 2000  40 CFR part 263.
MAC R 299.11007(2).............  September 11, 2000  None.
MAC R 299.11008(2).............  September 11, 2000  None.
----------------------------------------------------------------------------------------------------------------


[[Page 70764]]

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

    Michigan hazardous waste management regulations are more stringent 
than the corresponding federal regulations in a number of different 
areas. The more stringent provisions are being recognized as a part of 
the federally-authorized program and are federally enforceable. More 
stringent provisions in the state's authorization application include, 
but are not limited to, the following:
    1. At MAC R 299.9203(7)(a) and (c), Michigan's exclusion differs 
from the corresponding Federal counterpart at 40 CFR 261.3(g)(2)(i) in 
that the exclusion only applies to mixtures generated as a result of a 
cleanup conducted at the individual site of generation pursuant to 
parts 31, 111, 201, or 213 of Michigan's Act 451 (1994 PA 451, MCL 
324.101, known as the natural resources and environmental protection 
act), or CERCLA.
    2. At R 299.9306(7)(d)(i) and (ii) and (g), Michigan's rules 
contain containment, inspection, recordkeeping and emergency 
requirements that are not found in the Federal counterpart at 40 CFR 
262.34(g)(4)(i)(A) and (B) and (g)(4)(v), respectively.
    3. At R 299.9307(7)(d)(i)(C), Michigan does not allow containment 
buildings, as does 40 CFR 262.34(g)(4)(i)(C).
    4. At R 299.9639(5)(e), Michigan does not allow permits as a shield 
as does the Federal counterpart at 40 CFR Sec.  264.555(e)(5).
    We consider the following state requirements to be beyond the scope 
of the Federal program, though this list may not be exhaustive:
    At R 299.9104 and R 299.9203, Michigan regulates more hazardous 
wastes than the Federal counterpart at 40 CFR 266.210. The hazardous 
wastes that are regulated by Michigan but not by EPA are broader-in-
scope requirements.
    Broader-in-scope requirements are not part of the authorized 
program and EPA cannot enforce them. Although you must comply with 
these requirements in accordance with state law, they are not RCRA 
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. We 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 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 proposed rule only authorizes hazardous waste requirements 
pursuant to RCRA 3006 and does not impose requirements other than those 
already imposed by state law (see SUPPLEMENTARY INFORMATION, Section A. 
Why Are Revisions to State Programs Necessary?; and Section C. What Is 
the Effect of Today's Authorization Decision?). 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 19, 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, or 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 and it is 
not based on environmental health or safety risks.

[[Page 70765]]

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 met 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 15, 
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.

List of Subjects in 40 CFR Part 271

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous waste, Hazardous waste 
transportation, 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: November 9, 2005.
Margaret M. Guerriero,
Acting Regional Administrator, Region 5.
[FR Doc. 05-23213 Filed 11-22-05; 8:45 am]
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