83 FR 50869 - Michigan: Proposed Authorization of State Hazardous Waste Management Program Revision

ENVIRONMENTAL PROTECTION AGENCY

Federal Register Volume 83, Issue 196 (October 10, 2018)

Michigan has applied to EPA for final authorization of changes to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA). EPA has reviewed Michigan's application, and we have determined that these changes satisfy all requirements needed to quality for final authorization, and we are proposing to authorize the State's changes. The EPA seeks public comment prior to taking final action.

[Federal Register Volume 83, Number 196 (Wednesday, October 10, 2018)]
[Proposed Rules]
[Pages 50869-50872]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-21883]



[[Page 50869]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[EPA-R05-RCRA-2017-0381; FRL-9985-15-Region 5]


Michigan: Proposed 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 changes 
to its hazardous waste program under the Resource Conservation and 
Recovery Act (RCRA). EPA has reviewed Michigan's application, and we 
have determined that these changes satisfy all requirements needed to 
quality for final authorization, and we are proposing to authorize the 
State's changes. The EPA seeks public comment prior to taking final 
action.

DATES: Comments on this proposed rule must be received by November 9, 
2018.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R5-
RCRA-2017-0381 at www.regulations.gov. Follow the on-line instructions 
for submitting comments. Once submitted, comments cannot be edited or 
removed from www.regulations.gov. The EPA may publish any comment 
received to its public docket. Do not submit comments electronically 
any information you consider to be Confidential Business Information 
(CBI) or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. The EPA 
will generally not consider comments or comment contents located 
outside of the primary submission (i.e. on the web, cloud, or other 
file sharing system). For additional submission methods, the full EPA 
public comment policy, information about CBI or multimedia submissions, 
and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Judith Greenberg, Region 5, RCRA/TSCA 
Programs Section, RCRA Branch, Land and Chemicals Division, U.S. 
Environmental Protection Agency, 77 West Jackson Boulevard, LR-8J, 
Chicago, Illinois 60604, phone number: (312) 886-4179, email: 
[email protected].

SUPPLEMENTARY INFORMATION: 

A. Why are revisions to state programs necessary?

    States that have received final authorization from EPA under RCRA 
Section 3006(b) of RCRA, 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 request 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 made a tentative decision 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's 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 program revision 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 as described in 
Michigan's authorization revision application, these changes will 
become a part of the authorized state hazardous waste program, and 
therefore will be federally enforceable. Michigan will continue to have 
primary enforcement authority and responsibility for its state 
hazardous waste program. EPA would retain its authorities under RCRA 
sections 3007, 3008, 3013, and 7003, including its authority to:
     Conduct inspections which may include but are not limited 
to requiring monitoring, tests, analyses and/or reports;
     Enforce RCRA requirements which may include, but are not 
limited to, suspending, terminating, modifying and/or revoking permits; 
and
     Take enforcement actions regardless of whether the State 
has taken its own actions.
    This action, if approved, will not impose additional requirements 
on the regulated community because the regulations for which Michigan 
is requesting authorization are already effective under state law, and 
will not be changed by the act of authorization.

D. What happens if EPA receives adverse comments on this action?

    If EPA receives adverse comments on 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); 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); and on August 
28, 2015 (80 FR 52194).

F. What changes are we proposing with today's action?

    On March 2, 2018, Michigan submitted a final program revision 
application, seeking authorization of changes in accordance with 40 CFR 
271.21. EPA proposes to make a final determination that Michigan's 
hazardous waste program revisions are equivalent to, consistent with, 
and no

[[Page 50870]]

less stringent than the federal program, and therefore satisfy all of 
the requirements necessary to qualify for final authorization. 
Therefore, we are proposing to authorize, subject to receipt of written 
comments that oppose this action, the following program changes:

             Michigan's Analogs to the Federal Requirements
------------------------------------------------------------------------
                                                      Analogous state
                                                      authority (MAC R
    Description of federal       Federal Register   299.* * *, effective
          requirement             date and page    April 5, 2017, unless
                                                    otherwise specified)
------------------------------------------------------------------------
Conditional Exclusions for      July 13, 2013, 78  9105(bb), 9107(y),
 Solvent Contaminated Wipes,     FR 46448.          9109(pp), and
 Checklist 229.                                     9204(1)(z) and
                                                    (2)(q).
Conditional Exclusion for       January 3, 2014,   9201(b), effective
 Carbon Dioxide (CO2) Streams    79 FR 350.         September 22, 1998,
 in Geologic Sequestration                          and 9204(13).
 Activities, Checklist 230.
Hazardous Waste Electronic      February 7, 2014,  9103(a), (b), (o),
 Manifest Rule, Checklist 231.   79 FR 7518.        and (ff),
                                                    9304(1)(c), (2), and
                                                    (6), 9409(1) and
                                                    (5); 9601(2)(c),
                                                    effective December
                                                    16, 2004, 9608,
                                                    9608(1), (6), (7),
                                                    and (9), and (12),
                                                    and 11003(1)(l), (m)
                                                    and (o).
Revisions to the Export         June 26, 2014, 79  9102(y), 9231(1)(f)
 Provisions of the Cathode Ray   FR 26220.          and (7), and
 Tube (CRT) Rule, Checklist                         11003(1)(i) and (j).
 232.
Revisions to the Definition of  January 13, 2015,  9202(7), (8), and
 Solid Waste Checklist 233A.     80 FR 1694.        (9), and
                                                    11003(1)(i).
Revisions to the Definition of  January 13, 2015,  9102(r), 9104(d),
 Solid Waste Checklist 233B.     80 FR 1694.        9232, 9232(1), and
                                                    9202.
Revisions to the Definition of  January 13, 2015,  9107(bb).
 Solid Waste Checklist 233C.     80 FR 1694.
Revisions to the Definition of  January 13, 2015,  9103(e), (s), and
 Solid Waste Checklist 233D2.    80 FR 1694.        (aa), 9104, 9105(b),
                                                    9107(b), 9108(h),
                                                    9202(1)(b) and (aa),
                                                    9204, 9204(1)(aa)
                                                    and (bb), 9202(6),
                                                    (7), and (9),
                                                    9234(1) and (2),
                                                    9519((5)(a)(ix) and
                                                    (x), and 11003(1)(i)
                                                    and (j).
Revisions to the Definition of  January 13, 2015,  9107(i),
 Solid Waste Checklist 233E.     80 FR 1694.        9202(1)(b)(iii) and
                                                    (1)(cc), 9233(1),
                                                    (2), (3), and (4),
                                                    and 11003(1)(j).
Response to Vacaturs of the     April 8, 2015, 80  9104(a), 9204(1)(l)
 Comparable Fuels Rule and the   FR 18777.          and (w), and 9230.
 Gasification Rule, Checklist
 234.
Disposal of Coal Combustion     April 17, 2015,    9204(2)(c), (d), and
 Residuals from Electric         80 FR 21302.       (e).
 Utilities, Checklist 235.
------------------------------------------------------------------------


                                   Table 2--Equivalent State-Initiated Changes
----------------------------------------------------------------------------------------------------------------
                                            Effective date(s) of
     State citation MAC R 299.* * *           state-initiated               Description of modification
                                                modification
----------------------------------------------------------------------------------------------------------------
9204(2)(h)(vii) and (x).................  April 5, 2017..........  A. The phrase ``including waste scrap leather
                                                                    from automotive seat design activities'' has
                                                                    been added to paragraph (vii) to clarify
                                                                    that such materials are included in the
                                                                    waste scrap leather from the leather tanning
                                                                    industry, the shoe manufacturing industry,
                                                                    and other leather product manufacturing
                                                                    industries category.
                                                                   A. Paragraph (x) has been added to include
                                                                    boiler chemical cleaning waste from electric
                                                                    utility boiler maintenance using water and
                                                                    tetra ammonium ethylene diamine tetra acetic
                                                                    aced (a.k.a. ammoniated EDTA) among the
                                                                    specific wastes that, if they meet the
                                                                    standards in subdivision (h), are not
                                                                    hazardous wastes for the purposes for Part
                                                                    111, Hazardous Waste Management, of
                                                                    Michigan's Natural Resources and
                                                                    Environmental Protection Act, 1994 PA 451,
                                                                    as amended, and its rules.
9206(3)(q)..............................  4/5/2017...............  The items considered textiles have been
                                                                    modified to reflect the new federal term
                                                                    ``wipes'' that the U.S. Environmental
                                                                    Protection Agency defined as part of the
                                                                    Solvent-Contaminated Wipes Rule.
9225....................................  4/5/2017...............  Table 205b has been modified to remove
                                                                    duplicate entry for nitrobenzene and add
                                                                    back in 1,3-Pentadiene, which is part of the
                                                                    Part 111 rules, but was inadvertently
                                                                    deleted from the printed copies of the
                                                                    rules.
9226....................................  4/5/2017...............  Certain state ``U'' wastes have been deleted
                                                                    from Table 205c.
9506, 9621, and 11001...................  4/5/2017...............  These rules have been revised to reflect
                                                                    updates to the ASTM standards.
9608(1).................................  4/5/2017...............  This subrule has been revised to clarify that
                                                                    if a facility receives a hazardous waste
                                                                    shipment from a conditionally exempt small
                                                                    quantity generator that is accompanied by a
                                                                    manifest, the facility is not required to
                                                                    submit a copy of that manifest to the
                                                                    director or his or her designee.
----------------------------------------------------------------------------------------------------------------

G. Which revised state rules are different from the federal rules?

    Michigan has excluded the non-delegable federal requirements at 40 
CFR 268.5, 268.6, 268.42(b), 268.44, and 270.3. EPA will continue to 
implement those requirements.
    Michigan has proposed additions to its Universal Wastes that will 
add Antifreeze, Aerosol cans and Paint Wastes that are not already 
regulated as hazardous waste. As such they are not regulated under the 
RCRA subtitle C program by U.S. EPA, though Michigan

[[Page 50871]]

plans to regulate them under State law if those State additions go into 
effect.
    Michigan's program is broader in scope than the federal program in 
its adoption of 40 CFR 260.43 (2015) and 40 CFR 261.4(a)(24) (2015) at 
MAC R 299.9232 and R 299.9204(1)(bb). Both of these regulations include 
provisions from the 2015 Definition of Solid Waste (DSW) Rule that have 
been vacated and replaced with the less stringent requirements of 40 
CFR 260.43 (2008) and 40 CFR 261.4(a)(24) and (25) (2008) from the 2008 
DSW Rule.''

H. Who handles permits after 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 issues prior to the effective date of the proposed 
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 the 
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.
    Therefore, authorizing Michigan for these revisions would not 
affect Indian Country 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 a state's statutes and 
regulations that comprise a 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 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulations and Regulatory Review

    The Office of Management and Budget has exempted this rule from its 
review under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 
Executive Order 13563 (76 FR 3821, January 21, 2011).

2. Paperwork Reduction Act

    This proposed 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

    This proposed rule authorizes state requirements for the purpose of 
RCRA 3006 and imposes no additional requirements beyond those required 
by state law. Accordingly, I certify that this proposed rule will not 
have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

4. Unfunded Mandates Reform Act

    Because this proposed 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 (2 U.S.C. 1531-1538).

5. Executive Order 13132: Federalism

    Executive Order 13132 (64 FR 43255, August 10, 1999) does not apply 
to this proposed 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 proposed 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 proposed 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 proposed 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 
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 to this proposed rule.

10. Executive Order 12988

    As required by Section 3 of Executive Order 12988 (61 FR 4729, 
February 7, 1996), in issuing this proposed rule, EPA has taken the 
necessary steps to

[[Page 50872]]

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 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.

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

    Because this rulemaking 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 proposed rule is not subject to 
Executive Order 12898 (59 FR 7629, February 16, 1994).

13. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs

    This action is not an Executive Order 13771 (82 FR 9339, February 
3, 2017) regulatory action because actions such as today's final 
authorization of Michigan's revised hazardous waste management program 
under RCRA are exempted under Executive Order 12866.

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: 42 U.S.C. 6905, 6912(a), 6926, and 6939g.

    Dated: September 18, 2018.
Cathy Stepp,
Regional Administrator, Region 5.
[FR Doc. 2018-21883 Filed 10-9-18; 8:45 am]
 BILLING CODE 6560-50-P