EPA reviewed the statement and the citations of authority and found them satisfactory, and authorization of the state program revisions became effective on April 24, 1989.

Comment #7: The commenter asserts that R 299.9801, Mich. Adm. Code, allows for the unregulated disposal of hazardous waste as a fertilizer ``product,'' whereas R 299.4111, Mich. Adm. Code, which pertains to plans to manage solid wastes as nondetrimental material managed for agricultural or silvicultural use, would heavily regulate nonhazardous waste.

Response: For the reasons discussed below, this authorization action is not the appropriate forum for these comments. As in the federal regulations at 40 CFR 266.20, R 299.9801, Mich. Admin. Code, exempts products that contain ``recyclable materials used in a manner constituting disposal'' (except K061 derived fertilizers \1\) from regulation only if they comply with applicable land disposal restriction (LDR) treatment standards or, where no treatment standards have been established, if they comply with the applicable prohibition levels or with section 3004(d) of RCRA, for each recyclable material that the products contain. EPA promulgated 40 CFR 266.20 on January 4, 1985 (see 50 FR 614) and revised this regulation on August 17, 1988 (see 53 FR 31138); September 6, 1989 (54 FR 36967); and August 24, 1994 (59 FR 8583). Michigan R 299.9801 is equivalent to the federal requirements and was previously authorized by EPA effective on October 30, 1986 (51 FR 36804, October 16, 1986) and on April 8, 1996 (61 FR 4742, February 2, 1996). The program revisions EPA is authorizing today do not affect the equivalency of R 299.9801.
\1\ EPA has proposed to remove the regulatory provision which currently exempts fertilizer made from K061 from having to meet applicable LDR standards in EPA's proposed rule ``Requirements for Zinc Fertilizers Made from Recycled Hazardous Secondary Materials,'' dated November 28, 2000. 65 FR 70985.

Moreover, this comment is not relevant to this action because R 299.4111, Mich. Adm.Code, is not part of and has no effect upon this action or Michigan's authorized hazardous waste program. R 299.4111, which regulates plans for managing solid wastes as nondetrimental material managed for agricultural or silvicultural use, is not applicable to hazardous wastes because R 299.4110 exempts hazardous wastes from regulation as solid waste. R 299.4110 reads as follows:

As provided by section 11506 of the act, the following wastes are ``other wastes regulated by statute'' and are exempt from regulation as solid wastes under part 115 of the act: (a) hazardous waste regulated under part 111 of the act.

By its terms, R 299.4111, Mich. Adm. Code, applies to solid wastes: (1) A person shall not apply sludges, ashes, or other solid waste to the land without having obtained a license under the act, unless the director has approved a plan for managing the wastes as nondetrimental materials that are appropriate for agricultural or silvicultural use or has otherwise authorized the application under part 31 of the act. (Emphasis added)

While both solid waste and its subset hazardous waste are regulated under the umbrella of RCRA, that statute contains different subchapters for governing the content, criteria and administration of hazardous waste programs (Subchapter III) and solid waste plans (Subchapter IV). EPA's authority to ``authorize'' a state to administer and enforce a ``hazardous waste program'' under Subchapter III of RCRA (see 3006 of RCRA, 42 U.S.C. 6926) does not constitute ``approval'' of either a state solid waste plan (see section 4007(a) of RCRA, 42 U.S.C. 6947(a), or a solid waste management facility permit program (see section 4005(c) of RCRA, 42 U.S.C. 6945(c)), under Subchapter IV of RCRA. The criteria for authorization of a state hazardous waste program are set part in section 3006 of RCRA. In reviewing an application under section 3006, EPA considers whether the state program (1) is equivalent to the federal program under Subchapter III, which governs hazardous waste; (2) is consistent with federal or ``state programs applicable in other states''; and (3) provides adequate enforcement of compliance with the requirements of
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Subchapter III of RCRA. As part of this review, EPA considers whether the state is imposing requirements less stringent than those authorized under Subchapter III respecting the same matter as governed by such regulation. (See sections 3006 and 3009 of RCRA, 42 U.S.C. 6926 and 6929.) The commenter's request for EPA to review R 299.9801 for consistency with R 299.4111, which explicitly does not apply to hazardous waste, falls outside the scope of this action.

For the reasons set forth above, the comments on R 299.4111, Mich. Admin. Code, are not relevant to today's action.

C. What Decisions Have We Made in This Rule?

We conclude that Michigan's revisions to its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we are granting Michigan final authorization to operate its hazardous waste program with the revisions described in the authorization application. Michigan now has responsibility for permitting treatment, storage, and disposal facilities (TSDFs) within its borders (except in Indian country) and for carrying out the aspects of the RCRA program described in its revised program application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA). New federal requirements and prohibitions imposed by federal regulations that EPA promulgates under the authority of HSWA take effect in authorized states before the states 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.

D. What Is the Effect of Today's Authorization Decision?

The effect of this decision is that a facility in Michigan subject to RCRA will now have to comply with the authorized state requirements in lieu of the corresponding federal requirements in order to comply with RCRA. Additionally, such persons will now have to comply with any applicable federallyissued requirements, such as HSWA regulations issued by EPA for which the state has not received authorization, and RCRA requirements that are not supplanted by authorized stateissued requirements. Michigan continues to have enforcement responsibilities under its state hazardous waste management program for violations of its hazardous waste management program, but EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, the authority to:

This action to approve these revisions 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.

E. What Has Michigan Previously Been Authorized for?

Michigan initially received final authorization on October 16, 1986, effective October 30, 1986 (51 FR 3680436805) to implement the RCRA hazardous waste management program. We granted authorization for changes to Michigan's program effective January 23, 1990 (54 FR 48608, November 24, 1989); effective June 24, 1991 (56 FR 18517, January 24, 1991); effective November 30, 1993 (58 FR 51244, October 1, 1993); effective January 13, 1995 (60 FR 3095, January 13, 1995); effective April 8, 1996 (61 FR 4742, February 8, 1996); effective November 14, 1997 (62 FR 61775, November 14, 1997); and effective June 1, 1999 (64 FR 10111, March 2, 1999).

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

On March 3, 2000, and April 3, 2001, Michigan submitted complete program revision applications seeking authorization of its changes in accordance with 40 CFR 271.21. We now make a final decision that Michigan's hazardous waste management program, as revised, satisfies all requirements under RCRA necessary to qualify for final authorization. Therefore, we grant Michigan final authorization for the program revisions described in the February 28, 2002 proposed rule (67 FR 9225). For further details, see the February 28, 2002 proposed rule. G. 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 for which Michigan is authorized 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.
H. 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. We reserve the amendment of 40 CFR part 272, subpart X, for this authorization of Michigan's program changes until a later date.
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 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, today's action has no effect on Indian country. EPA will continue to implement and administer the RCRA program in Indian country. It is EPA's longstanding 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. Administrative Requirements

The Office of Management and Budget has exempted RCRA authorizations from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993), and therefore this action is not subject to review by OMB. Furthermore, 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. This action authorizes state requirements for the purpose of RCRA section 3006 and imposes no additional requirements beyond those imposed by state law. This authorization will effectively suspend [[Page 49621]]
the applicability of certain federal regulations in favor of Michigan's program, thereby eliminating duplicate requirements for handlers of hazardous waste in the state. Authorization will not impose any new burdens on small entities. Accordingly, I certify that this action 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.). Because this action authorizes preexisting 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 (Public Law 1044). This action does not have tribal implications within the meaning of 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 authorizes 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 does not include environmental justice related issues that require consideration under Executive Order 12898 (59 FR 7629, February 16, 1994).

Under RCRA 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 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. 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. This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1994 (44 U.S.C. 3501 et seq.).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA has submitted a report containing this document and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States, prior to publication of this rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a ``major rule'' as defined by 5 U.S.C. 804(2).

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: July 23, 2002.
Thomas V. Skinner,
Regional Administrator, Region 5.
[FR Doc. 0219226 Filed 73002; 8:45 am] BILLING CODE 656050P

FOR FURTHER INFORMATION CONTACT Ms. Judy Feigler, Michigan Regulatory Specialist, U.S. Environmental Protection Agency, Waste, Pesticides and Toxics Division (DM7J), 77 W. Jackson Blvd., Chicago, Illinois 60604, phone number: (312) 8864179; or Ms. Kimberly Tyson, Michigan Department of Environmental Quality, 608 W. Allegan, Hannah Building, Lansing, Michigan, phone number: (517) 3732487.