[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 [www.gpo.gov]
[FR Doc No: 2021-26829]



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.


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:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     Email: [email protected].
     Instructions: EPA must receive your comments by January 
27, 2022. Direct your comments to Docket ID Number EPA-R05-RCRA-2021-
    EPA's policy is that all comments received will be included in the 
public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI), or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov, or email. 
The federal www.regulations.gov 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 
www.regulations.gov, 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 www.epa.gov/epahome/dockets.htm).
    Docket: All documents in the docket are listed in the 
www.regulations.gov, 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 www.regulations.gov, or in hard copy.

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 [email protected]


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:
     Conduct inspections, and require monitoring, tests, 
analyses and reports;
     Enforce RCRA requirements, including authorized State 
program requirements, and suspend or revoke permits; and
     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:

    \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 https://www.epa.gov/epawaste/laws-regs/state/index.htm.
    \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
                                                        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
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
                                                       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),
                                                       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),
                                                       9309, 9310(1) and
                                                       (2), 9311(1)-(3)
                                                       and (5)-(7),
                                                       9312(1)-(3) and
                                                       (7), 9315(1)-(3),
                                                       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),
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).

[[Page 70792]]

               Table 2--Equivalent State-Initiated Changes
 Michigan administrative rules (MAC R   Effective date of amended State
 299.*** unless otherwise specified)              requirement
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).

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 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 
    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 
    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]