[Federal Register Volume 65, Number 121 (Thursday, June 22, 2000)]
[Proposed Rules]
[Pages 38802-38806]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-15297]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 271
[FRL-6717-6]
Hawaii; Tentative Determination on Final Authorization of State
Hazardous Waste Management Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of tentative determination on application of Hawaii for
final authorization, public meeting, public hearing and public comment
period.
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SUMMARY: Hawaii has applied for final authorization of its hazardous
waste management program under the Resource Conservation and Recovery
Act (RCRA). The Environmental Protection Agency (EPA) has reviewed
Hawaii's application and made the tentative decision that Hawaii's
hazardous waste management program satisfies all of the requirements
necessary to qualify for final authorization. Thus, EPA intends to
grant final authorization to the State to operate its program subject
to the limitations on its authority retained by EPA in accordance with
RCRA, including the Hazardous and Solid Waste Amendments of 1984
(HSWA). Hawaii's application for final authorization is available for
public review and comment. EPA will hold a public meeting to discuss
Hawaii's hazardous waste program with interested persons and a public
hearing to solicit comments on the application.
DATES: A public meeting is scheduled for July 25, 2000. A public
hearing is scheduled for July 27, 2000. We must receive all written
comments on Hawaii's final authorization application by the close of
business on August 4, 2000.
ADDRESSES: Send written comments to Rebecca Smith, WST-3, U.S. EPA
Region 9, 75 Hawthorne Street, San Francisco 94105-3901. You can view
and copy Hawaii's application during normal business hours at the
following locations: EPA Region 9, Library, 75 Hawthorne Street, San
Francisco, CA 94105-3901, Phone number: (415) 744-1510; or U.S. EPA
Region 9 Pacific Islands Contact Office (PICO), 300 Ala Moana Blvd.,
Room 5-152, Honolulu, HI 96850, Phone number: (808) 541-2721; or Hawaii
Department of Health (HDOH), Solid and Hazardous Waste Branch, 919 Ala
Moana Blvd., Room 212, Honolulu, HI 96814, Phone number: (808) 586-
4226; or HDOH, Environmental Management Division, 79-7595 Haukapila
Street, Kealakekua, HI 96750 (at the old Kona Hospital), Phone number:
(808) 322-7011; or HDOH, Environmental Health Facility, 1582 Kamehameha
Avenue, Hilo, HI 96720, Phone number: (808) 933-0917; or HDOH, Maui
District Health Office, 54 High Street, Wailuku, HI 96793, Phone
number: (808) 984-8230; or HDOH, Kauai District Health Office, 3040 Umi
Street, Lihue, HI 96766, Phone number: (808) 241-3323.
FOR FURTHER INFORMATION CONTACT: Rebecca Smith at the above address and
(415) 744-1510.
SUPPLEMENTARY INFORMATION:
A. Why Are State Programs Authorized?
Section 3006 of RCRA allows EPA to authorize State hazardous waste
management programs to operate in the State in lieu of the Federal
hazardous waste management program subject to the authority retained by
EPA in accordance with RCRA. EPA grants authorization if the Agency
finds that the State program (1) is ``equivalent'' to the Federal
program, (2) is consistent with the Federal program and other State
programs, and (3) provides for adequate enforcement (Section 3006(b),
42 U.S.C. 6926(b)). EPA regulations for final State authorization
appear at 40 CFR part 271.
B. What has EPA Tentatively Decided on Hawaii's Application for
Authorization?
The EPA has reviewed Hawaii's application and has tentatively
determined that it meets all of the statutory and regulatory
requirements established by RCRA. Also, prior to submitting its
application on May 5, 1999, Hawaii solicited public comment and held a
public hearing. Therefore, we are proposing to grant Hawaii final
authorization to operate its hazardous waste management program subject
to the authority retained by EPA under RCRA. Hawaii will have
responsibility for permitting Treatment, Storage, and Disposal
Facilities (TSDFs) within its borders and for carrying out the aspects
of the RCRA program described in its program application, subject to
the limitations of RCRA, including 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 Hawaii, including issuing permits,
until the State is granted authorization to do so.
[[Page 38803]]
In accordance with section 3006 of RCRA and 40 Code of Federal
Regulations (CFR) 271.20 (d), the Agency will hold a public hearing on
its tentative decision on July 27, 2000 at 7 p.m. at Kawananakoa
Intermediate School Cafetorium, 49 Funchal St., Honolulu HI 96813.
Prior to the hearing, the Agency will hold a public meeting on July 25,
2000 at 5 p.m. at Kawananakoa Intermediate School Cafetorium, 49
Funchal St., Honolulu, HI 96813 to provide information about the
state's program and to answer questions from the public. The public may
also submit written comments on EPA's tentative determination until
August 4, 2000. Copies of Hawaii's application are available for
inspection and copying at the locations indicated in the Addresses
section of this notice.
The EPA will consider all relevant public comments on its tentative
decision received at the hearing or submitted in writing during the
public comment period. Issues raised by those comments may be the basis
for a decision to deny final authorization to Hawaii. The EPA expects
to make a final decision on whether or not to approve Hawaii's program
by September 21, 2000 and will give notice of it in the Federal
Register. The notice will include a summary of the reasons for the
final determination and a response to all major comments.
C. What Will be the Effect of a Final Decision To Grant
Authorization?
The effect of a final decision to grant authorization is that
persons in Hawaii that are subject to RCRA will have to comply with the
authorized State requirements instead of the equivalent federal
requirements in order to comply with RCRA. Additionally, such persons
will have to comply with any applicable federally-issued requirements,
such as, for example, HSWA regulations issued by EPA for which the
State has not received authorization, and RCRA requirements that are
not delegable. Hawaii continues to have enforcement responsibilities
under its state law to pursue violations of its hazardous waste
management program. EPA continues to have independent authority under
RCRA sections 3007, 3008, 3013, and 7003, which include, among others,
the authority to:
Do inspections, and require monitoring, tests, analyses or
reports;
Enforce RCRA requirements (including state-issued statutes
and regulations that are authorized by EPA and any applicable
federally-issued statutes and regulations) and suspend or revoke
permits; and
Take enforcement actions regardless of whether the State
has taken its own actions.
A final decision to grant authorization will not impose additional
requirements on the regulated community because the regulations for
which Hawaii will be authorized are already effective, and will not be
changed by such final decision.
D. What Rules are We Proposing To Authorize In Lieu of The Federal
Requirements?
On May 5, 1999, Hawaii submitted a final complete program
application, seeking authorization in accordance with 40 CFR 271.3. We
are proposing to grant Hawaii final authorization for the hazardous
waste program submitted. State hazardous waste management requirements
that are either equivalent to or more stringent than the corresponding
federal requirements will become part of the authorized State program.
In developing its hazardous waste management program, Hawaii
adopted almost verbatim the federal hazardous waste regulations found
in 40 CFR Parts 260--266, 268, 270, 273 and 279, effective through May
6, 1998. EPA cannot delegate the Federal requirements at 40 CFR 268.5,
268.6, 268.42(b) and 268.44. Hawaii did not adopt these requirements,
but reserved those sections of its regulations. EPA will continue to
implement those requirements. Upon authorization, the State's hazardous
waste management rules that are either equivalent to or more stringent
than the corresponding federal rules will apply in lieu of the federal
rules. The applicable rules are identified below.
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Federal hazardous waste
requirements Analogous state authority
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40 CFR Parts 260--266, 268, 270, Hawaii Administrative Rules (HAR)
273, 279 through May 6, 1998. 11-260 to 11-266, 11-268, and 11-
270, adopted June 18, 1994,
revised March 13, 1999; and HAR
11-273 and 11-279 adopted March
13, 1999..
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Hawaii did not adopt certain rulemaking petition procedures from 40
CFR part 260, subpart C, i.e., 40 CFR 260.20, 260.21, 260.22, 260.30,
260.31, 260.32 and 260.33, which address what to include in petitions
requesting modifications under 40 CFR parts 260 through 266, 268 and
273, petitions for an equivalent testing method, petitions to exclude
the waste produced at a particular facility, petitions that certain
recycled materials not be classified as a solid waste and therefore not
a hazardous waste, and petitions that a particular enclosed device be
classified as a boiler. Adoption of these rulemaking petition
procedures is not required for RCRA authorization. However, under HAR
11-260-42, any petitions granted by the EPA under 40 CFR 260.22 to
exclude the waste of a particular facility in Hawaii must be adopted by
a Hawaii rule to be effectively excluded from State regulation, which
requirement is more stringent than the federal program.
Hawaii has established a shorter permit term of five years instead
of ten years, which is more stringent than the federal program. Hawaii
will review hazardous waste land disposal permits three years instead
of five years after issuing them, which is also more stringent than the
federal program; however, Hawaii currently has no such facilities.
Hawaii's provision under HAR 11-271-15(e) establishing a maximum time
period of 180 days for the State's action on a permit application will
sunset as soon as Hawaii obtains federal authority for its hazardous
waste program because the federal regulations that Hawaii adopted do
not specify a time period.
Hawaii did not adopt 40 CFR 261.4(b)(5) and therefore treats
drilling fluids, produced waters, and other wastes associated with the
exploration, development, or production of crude oil, natural gas or
geothermal energy, as hazardous waste, which is broader in scope than
the federal program. EPA cannot enforce requirements that are broader
in scope than the federal program. Broader in scope requirements will
not be part of the authorized program. Although you must comply with
these requirements in accordance with state law, they will not be RCRA
requirements under the authorized program.
Hawaii requires persons who transport, market or recycle used oil
or used oil fuel to obtain a permit from the Hawaii Department of
Health, which is broader in scope than the federal
[[Page 38804]]
program. Hawaii included a requirement that any person who imports
hazardous waste from a foreign country or from a state into Hawaii must
submit specific information in writing to the State within 30 days
after the waste arrives. This requirement is broader in scope than the
federal program. Additionally, Hawaii requires annual reports of
transporters, processors, re-refiners and marketers, in addition to the
RCRA required biennial reports, in order to allow the State to track
legitimate handlers of used oil and thus better locate illegal
handlers, which requirement is broader in scope than the federal
program.
In summary, EPA considers the following State requirements to be
more stringent than the Federal requirements:
HAR 11-264-1082(c)(4)(ii), because the State must
separately approve any alternative treatment method approved by EPA
under 40 CFR 268.42(b) granted for a tank, surface impoundment or
container; and
HAR 11-270-50(a) and (d), because the State limits
hazardous waste permits to five years (the federal limit is 10 years),
and landfill permits to three years (the federal limit is five years).
These requirements will be part of Hawaii's authorized program and
will be federally enforceable.
EPA considers that the following State requirements go beyond the
scope of the federal program. EPA cannot enforce requirements that are
broader in scope than the federal program. Broader in scope
requirements will not be part of the authorized program. Although you
must comply with these requirements in accordance with state law, they
will not be RCRA requirements under the authorized program.
HAR 11-261-4(b)(5), because the State does not exempt
drilling fluids, produced waters, and other wastes associated with the
exploration, development, or production of crude oil, natural gas or
geothermal energy from regulation;
HAR 11-262-60 and HAR 11-262-61, because the State adds
the requirement that any person who imports hazardous waste from a
foreign country or from any state into Hawaii must submit specified
information in writing within 30 days after the waste arrives in the
State;
HAR 11-279-90 to HAR 11-279-95, because the State requires
that persons who transport, market or recycle used oil or used oil fuel
obtain a State permit; and
HAR 11-279-48, 57 and HAR 11-279-76, because the State
requires annual reports of used oil transporters, processors, re-
refiners, and marketers.
E. How Will the State Enforce Compliance With the Rules?
Section 3006(b) of RCRA requires that the State provide adequate
enforcement of compliance with the hazardous waste management
requirements in order to receive authorization. We have tentatively
determined that Hawaii can adequately enforce compliance with its
hazardous waste management regulations. Hawaii's enforcement
authorities include the power to issue, modify, suspend or revoke
permits; collect information and enter and inspect the premises of
persons who handle hazardous wastes; assess administrative penalties or
initiate action in court for penalties or injunctive relief; issue
abatement and corrective action orders; and pursue criminal violations.
Hawaii's enforcement provisions are located at Hawaii Revised Statute
(HRS) Chapter 342J (1993 and Supp. 1998).
F. Who Handles Permits After This Authorization Takes Effect?
Hawaii 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
such permits expire or are terminated. When Hawaii either incorporates
the terms and conditions of the Federal permits into State RCRA permits
or issues State RCRA permits to those facilities, we will terminate
those previously issued EPA permits and rely on the State RCRA permits.
We will not issue any new permits or new portions of permits for the
authorized provisions after the effective date of this authorization.
EPA will continue to implement and issue permits for HSWA requirements
for which Hawaii is not yet authorized.
G. What Is Codification and Is EPA Codifying Hawaii'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 M for this authorization of Hawaii's
program until a later date.
H. Regulatory Analysis and Notices
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub.
L. 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year.
Before promulgating an EPA rule for which a written statement is
needed, section 205 of the UMRA generally requires EPA to identify and
consider a reasonable number of regulatory alternatives and adopt the
least costly, most cost-effective or least burdensome alternative that
achieves the objectives of the rule. The provisions of section 205 do
not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted.
Before EPA establishes any regulatory requirements that may
significantly or uniquely affect small governments, including tribal
governments, it must have developed under section 203 of the UMRA a
small government agency plan. The plan must provide for notifying
potentially affected small governments, enabling officials of affected
small governments to have meaningful and timely input in the
development of EPA regulatory proposals with significant Federal
intergovernmental mandates, and informing, educating, and advising
small governments on compliance with the regulatory requirements.
EPA has determined that section 202 and 205 requirements do not
apply to today's action because this rule does not contain a Federal
mandate that may result in annual expenditures of $100 million or more
for State, local, and/or tribal governments in the aggregate, or the
private sector. In fact, EPA's approval of State programs generally may
reduce, not increase, compliance costs for the private sector. Further,
as it applies to the State, this action does not impose a Federal
intergovernmental mandate because UMRA does not include duties arising
from participation in a voluntary federal program.
The requirements of section 203 of UMRA also do not apply to
today's action because this rule contains no regulatory requirements
that might significantly or uniquely affect small governments. Although
small
[[Page 38805]]
governments may be hazardous waste generators, transporters, or own
and/or operate TSDFs, they are already subject to the regulatory
requirements under the existing State laws that are being authorized by
EPA, and, thus, are not subject to any additional significant or unique
requirements by virtue of this program approval.
Certification Under the Regulatory Flexibility Act (RFA), as Amended by
the Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA), 5 U.S.C. 601 et seq.
The RFA generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations, and small
governmental jurisdictions.
For purposes of assessing the impacts of today's action on small
entities, small entity is defined as: (1) A small business as specified
in the Small Business Administration regulations; (2) a small
governmental jurisdiction that is a government of a city, county, town,
school district or special district with a population of less than
50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.
After considering the economic impacts of this authorization on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This action
does not impose any new requirements on small entities because small
entities that are hazardous waste generators, transporters, or that own
and/or operate TSDFs are already subject to the regulatory requirements
under the State laws which EPA is now authorizing. This action merely
authorizes for the purpose of RCRA 3006 those existing State
requirements.
Compliance With Executive Order 12866
The Office of Management and Budget has exempted this rule from the
requirements of Executive Order 12866.
Compliance With Executive Order 13132 (Federalism)
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that 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.''
Under section 6 of Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the proposed regulation. EPA also may not issue a regulation
that has federalism implications and that preempts State law unless the
Agency consults with State and local officials early in the process of
developing the proposed regulation.
This authorization does not have federalism implications as defined
in the Executive Order. It will not have a substantial direct effect on
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,
because this rule affects only one State. This action simply approves
Hawaii's proposal to be authorized for requirements of the hazardous
waste management program that the State has voluntarily chosen to
operate. Further, as a result of this action, newly authorized
provisions of the State's program now apply in Hawaii in lieu of the
equivalent Federal program provisions previously implemented by EPA.
Affected parties are subject only to those authorized State program
provisions, as opposed to being subject to both Federal and State
regulatory requirements. Thus, the requirements of section 6 of the
Executive Order do not apply.
Compliance With Executive Order 13045
Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks,'' applies to any rule that: (1) the
Office of Management and Budget determines is ``economically
significant'' as defined under Executive Order 12866, and (2) concerns
an environmental health or safety risk that EPA has reason to believe
may have a disproportionate effect on children. If the regulatory
action meets both criteria, the Agency must evaluate the environmental
health or safety effects of the planned rule on children and explain
why the planned regulation is preferable to other potentially effective
and reasonably feasible alternatives considered by the Agency.
EPA interprets Executive Order 13045 as applying only to those
regulatory actions that are based on health or safety risks, such that
the analysis required under section 5-501 of the Order has the
potential to influence the regulation. This rule is not subject to
Executive Order 13045 because it authorizes a state program.
Compliance With Executive Order 13084
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If EPA consults with those governments, Executive Order
13084 requires EPA to provide to the Office of Management and Budget,
in a separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected officials and other
representatives of Indian tribal governments ``to provide meaningful
and timely input in the development of regulatory policies on matters
that significantly or uniquely affect their communities.''
This rule is not subject to E.O. 13084 because it does not
significantly or uniquely affect any communities of Indian tribal
governments. There are no Indian tribes in Hawaii.
Paperwork Reduction Act
Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., Federal
agencies must consider the paperwork burden imposed by any information
request contained in a proposed rule or a final rule. This rule will
not impose any information requirements upon the regulated community.
[[Page 38806]]
National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law. No. 104-113, section 12(d) (15
U.S.C. 272 note) directs EPA to use voluntary consensus standards in
its regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
This action does not involve technical standards. Therefore, EPA
did not consider the use of any voluntary consensus standards.
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: June 9, 2000.
James Sayer,
Acting Regional Administrator, Region IX.
[FR Doc. 00-15297 Filed 6-21-00; 8:45 am]
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