[Federal Register Volume 66, Number 212 (Thursday, November 1, 2001)]
[Rules and Regulations]
[Pages 55115-55121]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-27465]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[FRL-7097-1]


Hawaii: Final Authorization of State Hazardous Waste Management 
Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of final determination on application of Hawaii for 
final authorization.

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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 has reached a final determination that 
Hawaii's hazardous waste management program satisfies all of the 
requirements necessary to qualify for final authorization. Thus, EPA is 
granting 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).

EFFECTIVE DATE: Final authorization for Hawaii shall be effective at 1 
p.m. on November 13, 2001.

FOR FURTHER INFORMATION CONTACT: Rebecca Smith, WST-2, U.S. EPA Region 
9, 75 Hawthorne Street, San Francisco 94105-3901, (415) 744-2152.

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, including HSWA. 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. When Are Revisions to State Programs Necessary?

    States which have received final authorization from EPA under RCRA 
section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste 
management program that is equivalent to, consistent with, and no less 
stringent than the Federal program. As the Federal program changes, 
states must change their programs and ask EPA to authorize the changes. 
Changes to state programs may be necessary when Federal or state 
statutory or regulatory authority is modified or when certain other 
changes occur. Most commonly, states must change their programs because 
of changes to EPA's regulations in 40 Code of Federal Regulations (CFR) 
parts 124, 260 through 266, 268, 270, 273 and 279.

C. What Were the Comments and Responses to EPA's Proposal?

    On May 5, 1999, Hawaii submitted an official application for final 
authorization to administer the RCRA program. On June 22, 2000, EPA 
published a tentative determination announcing its intent to grant 
Hawaii final authorization. Further background on the tentative 
decision to grant authorization appears at 65 FR 38802-38806, June 22, 
2000.
    Along with the tentative determination, EPA announced the 
availability of the application for public comment and the dates of a 
public meeting and a public hearing. The public meeting was held on 
July 25, 2000 and the public hearing was held on July 27, 2000.
    The EPA received three oral comments, one of which was supplemented 
in writing, and one letter containing written comment during the public 
comment period. Additionally, in April 2001, after the close of the 
comment period, EPA received a Petition To Withdraw Hawaii 
Certification and Title VI Complaint of Discriminatory Acts (Petition 
to Withdraw) document challenging the administration and enforcement of 
environmental programs by the State of Hawaii and seeking withdrawal of 
authorization for all environmental programs, including RCRA. We have 
taken into consideration comments in the Petition relating to the 
Hawaii hazardous waste management program in taking today's action. In 
addition, the EPA Office of Civil Rights (OCR), which is responsible 
for processing and investigating complaints of discrimination filed 
against programs or activities that receive financial assistance from 
EPA, has notified the complainant that it will review the Title VI 
Complaint of Discriminatory Acts under the procedural rules for 
handling Title VI Complaints. The significant issues raised by the 
commenters and EPA's responses are summarized below. Today's action is 
not a final determination on the merits of the Petition to Withdraw 
federal authorization for all environmental programs in Hawaii.
    1. Comment: EPA received comments relating to the Hawaii Department 
of Health's (HDOH) implementation of other programs for which Hawaii 
had been delegated authority by EPA. The comments generally asserted 
that the HDOH could not adequately enforce the laws and regulations of 
the hazardous waste management program because its record of 
performance in other environmental programs is poor. Some specific 
examples cited were that Hawaii's enforcement of the Clean Water Act is 
poor, its implementation of the Total Maximum Daily Load program (TMDL) 
is poor, and, in general, it lacks adequate funds, staff and commitment 
for environmental programs, such as the solid waste program. The 
Petition to Withdraw also raised these concerns. Please note, today's 
action is not a final determination on the merits of the Petition to 
Withdraw.
    Response: Each environmental program is unique and must be 
evaluated in light of the particular federal and state requirements 
applicable to that program. Among other things, programs differ 
significantly in the numbers and types of pollutants regulated; the 
number, size and type of facilities which are regulated; complexity and 
scope of regulatory requirements; regulatory mechanisms (for example, 
use of permits and prohibitions); tools for assessing compliance (e.g., 
inspections, self-

[[Page 55116]]

monitoring and self-reporting); and enforcement options. Moreover, 
different programs vary in funding levels and sources, and staffing 
levels (both number of staff and required qualifications).
    With respect to HDOH's performance in implementing the hazardous 
waste management program, EPA will discuss four program areas: 
compliance and enforcement, permitting, corrective action and waste 
minimization. HDOH has demonstrated steady progress in developing a 
strong compliance program. HDOH has been developing its capability to 
enforce the hazardous waste regulations since 1988, eleven years prior 
to submitting its application for program authorization in 1999. Since 
1994, when Hawaii first promulgated state hazardous waste regulations, 
the HDOH staff have conducted more than 170 inspections of generators 
or treatment facilities and have developed 30 enforcement actions as a 
result of those inspections. Included in HDOH's recent enforcement 
efforts was a complex joint enforcement action with EPA against the 
University of Hawaii. That enforcement action resulted in one of the 
largest RCRA settlements ever for hazardous waste violations in EPA 
Region 9, including $1.7 million in penalties and environmental 
projects.
    HDOH has inspected or visited another 530 sites, which were 
determined to be either conditionally exempt from regulation because 
they generated small amounts of hazardous waste, or not hazardous waste 
sites because the original facility no longer existed at that location. 
Information from these 530 smaller inspections and visits was used to 
update the HDOH database of facilities subject to RCRA hazardous waste 
management regulations. Twenty five of its 30 enforcement actions are 
complete, resulting in $792,058 in penalties collected. HDOH has also 
negotiated, as part of two settlements, supplemental environmental 
projects worth about $1.2 million. The EPA believes that this record 
demonstrates both a capacity and a commitment to enforce hazardous 
waste regulations.
    Enforcement is only one aspect of a comprehensive hazardous waste 
management program. Other important components are permitting, which 
includes permitting currently operating treatment, storage and disposal 
facilities; corrective action, i.e., monitoring the cleanup of sites 
where past practices or accidents have resulted in hazardous waste 
spilling on the ground; and waste minimization, involving development 
of projects to promote future safe practices and waste reduction 
efforts. EPA believes that the Hawaii hazardous waste management 
program is thorough and sound in its permitting, corrective action and 
waste reduction activities.
    Under the second part of the program, permitting, there is only one 
non-emergency permitted hazardous waste facility operating in Hawaii. 
The U.S. Navy at Pearl Harbor operates a hazardous waste storage 
facility to store hazardous wastes generated by the Navy until the 
wastes can be shipped to the mainland for proper treatment and 
disposal. The Pearl Harbor facility renewed a five-year permit in July 
2000. The HDOH permit writer took the lead for reviewing the Navy's 
application and for developing the subsequent permit, issued pursuant 
to both Hawaii and Federal laws and regulations. There are currently 
three emergency permits that have been issued in Hawaii. Emergency 
permits are temporary permits, with a duration of no more than 90 days, 
issued to address an imminent and substantial endangerment to human 
health or the environment.
    The only other site which may lawfully store hazardous waste on 
Hawaii is under the administration of the EPA rather than HDOH. That 
site is another U.S. Navy site at Pearl Harbor, which is storing 
hazardous waste mixed with radioactive waste until it can be shipped to 
planned treatment and disposal facilities on the mainland. Pearl Harbor 
is currently storing this waste under a compliance order entered into 
with EPA. When all of the currently stored waste is transferred, the 
site will not store hazardous waste beyond the amount of time allowed 
any generator in Hawaii to accumulate hazardous waste for safe 
transportation. In accordance with EPA's independent inspection and 
enforcement authorities after program authorization, EPA will continue 
to administer this order unless there is an agreement at some future 
time for HDOH to assume these duties.
    The HDOH is monitoring the cleanup of four sites in Hawaii. Those 
sites comprise Hawaii's corrective action universe. All four of these 
sites have achieved sufficient cleanup and control to safeguard human 
health and groundwater.
    In the area of waste minimization, the HDOH is implementing several 
projects to provide information to businesses and the public that will 
assist them in improving Hawaii's environment by preventing wastes from 
ever being generated or reducing the amount of waste a business needs 
to generate in its industrial processes.
    In all four of these program areas: compliance and enforcement, 
permitting, corrective action, and waste minimization, Hawaii's record 
of performance shows it can adequately implement and enforce the laws 
and regulations of the hazardous waste management program.
    With respect to the comments related to Hawaii's implementation and 
enforcement of the Clean Water Act, these are the same comments which 
were raised in the Petition. In response to the Petition, EPA decided 
to change its schedule of state program audits to perform an audit of 
Hawaii's NPDES program earlier than originally scheduled. Pursuant to 
the audit, EPA reviewed Hawaii's statutory authorities as well as 
enforcement mechanisms, and the audit raised some concerns, 
particularly related to enforcement. EPA is working with the State to 
address those concerns. We are also reviewing the issues raised in the 
Petition, and will respond directly to the Petitioner on those issues.
    2. Comment: Several comments generally expressed concern that the 
State of Hawaii has sometimes violated its own regulations and cannot 
take enforcement action against itself.
    Response: The HDOH does have the legal authority to bring an 
enforcement action against another state agency and, in fact, HDOH has 
taken enforcement action against another state agency. The EPA is 
satisfied that appropriate enforcement actions can and will be taken by 
HDOH against other non-complying State of Hawaii agencies when 
necessary. Over the last five years HDOH has targeted both local, state 
and federal governmental facilities, as well as private businesses, for 
hazardous waste compliance inspections. These inspections have resulted 
in 30 hazardous waste enforcement cases against public and private 
entities. Most recently, HDOH's largest hazardous waste enforcement 
case was against the University of Hawaii, a state-funded agency, that 
resulted in a $1.7 million settlement. The settlement includes a cash 
penalty of $505,000 and an agreement that the University will undertake 
several system-wide pollution prevention and waste minimization 
projects at a total value of $1.2 million, and an extensive compliance 
audit of its facilities. The University of Hawaii action was a joint 
enforcement effort between HDOH and EPA.
    3. Comment: A commenter expressed concern that HDOH has not 
developed appropriately protective regulations, commenting for example 
that the State does not have good water quality standards. Similar 
concerns were mentioned in the Petition to Withdraw.

[[Page 55117]]

Please note, today's action is not a final determination on the merits 
of the Petition to Withdraw.
    Response: As adopted in 1994, and amended in 1998, the Hawaii 
hazardous waste management rules are at least as stringent as the 
federal rules and in some cases are even more protective, as was 
outlined in the Federal Register document discussing EPA's tentative 
determination to authorize the Hawaii hazardous waste management 
program, 65 FR 38802 (June 22, 2000). Hawaii has adopted all applicable 
federal RCRA hazardous waste management rules through May 25, 1998, and 
will continue to adopt new federal rules which are more protective of 
the environment. In addition, federal rules promulgated under the 
Hazardous and Solid Waste Amendments of 1984 (HSWA) are immediately 
enforceable by the U. S. EPA until Hawaii adopts and receives 
authorization for them.
    HDOH is currently reviewing the water quality standards for Hawaii, 
as required by the Clean Water Act. The EPA is working closely with the 
State during this triennial review process to ensure a successful 
outcome. The HDOH is expected to complete its review by the end of 
2002. However, the adequacy of water quality standards is not an 
element of the criteria for determining a state hazardous waste 
management program's eligibility for RCRA authorization.
    4. Comment: One commenter said EPA has failed to adequately monitor 
the State of Hawaii programs and that program funds designated for a 
specific program have been given to other programs.
    Response: The commenter did not give a specific example of a 
program or a federally-funded grant that was not adequately monitored 
or of misuse or misapplication of funds. Given that this Notice is 
addressing authorization of the hazardous waste management program, EPA 
will address the hazardous waste management program for which Hawaii is 
seeking authorization. Since 1988, EPA has annually evaluated HDOH's 
development and implementation of the hazardous waste management 
program. The hazardous waste management program has been supported by 
annual federal grants with appropriate matching state funds since 1988. 
As a part of these grants, EPA and HDOH negotiated annual work plans 
with EPA monitoring HDOH performance throughout the year. After the end 
of each annual grant EPA conducted a complete evaluation of the HDOH 
hazardous waste management program expenditures under the grant. EPA 
determined that HDOH accomplished all of the work described in the 
annual grants, or, on the occasions when HDOH experienced a vacant 
position or for some other reason missed a work commitment, HDOH has 
returned an appropriate amount of hazardous waste federal funds to EPA. 
EPA is satisfied that HDOH implements an effective hazardous waste 
management program and that HDOH has completed the work supported by 
the federal hazardous waste grants. EPA will continue to conduct 
program evaluations and monitor HDOH performance and grant 
expenditures.
    5. Comment: A commenter said that the two-year enforcement trend 
that EPA discussed at a public meeting on July 25, 2000 was 
insufficient to predict continuing success.
    Response: Although EPA focused on the three most recent years of 
HDOH inspection and enforcement history at the public meeting, HDOH has 
been conducting inspections since 1994, when the State rules were first 
promulgated. In making its authorization determination, EPA has 
reviewed the full HDOH inspection history. Since 1994, HDOH has 
conducted more than 170 inspections of large generators and has 
annually monitored compliance at the only non-emergency permitted 
hazardous waste storage facility. These inspections have resulted in 30 
enforcement actions since 1994, including a complex joint enforcement 
action with EPA against the University of Hawaii.
    6. Comment: A commenter said that Hawaii's hazardous waste 
management program is not adequately funded and is staffed by temporary 
employees. Similar concerns were raised in the Petition to Withdraw. 
Please note, today's action is not a final determination on the merits 
of the Petition to Withdraw.
    Response: Before making an authorization determination, EPA 
evaluates the State's program in light of the following 
characteristics: past performance, resources and skill mix, training 
program, and State commitment; and EPA's expectation of the program's 
continuing success. EPA has evaluated all aspects of Hawaii's hazardous 
waste management program and has determined that Hawaii's program is 
adequate and the level of the State's resources is sufficient.
    Hawaii has issued quality permits and the quality of the State's 
corrective action activities is high. All four of Hawaii's corrective 
action sites have corrective actions in place that are protective of 
human health and groundwater. The State's inspections and subsequent 
reports have adequately documented violations resulting in the 
successful assessment and collection of penalties. Hawaii has issued 
enforcement orders, settled cases and collected penalties in a timely 
manner; all of their enforcement cases initiated prior to the year 2000 
are resolved. In addition, Hawaii has devoted sufficient State 
resources necessary to match the Federal hazardous waste management 
program grants. The State prepares and implements an annual training 
plan that ensures that all staff are adequately trained. Hawaii also 
has and effectively uses a data management system that provides timely 
and accurate information to the State and EPA. EPA believes that the 
State has demonstrated that it has the necessary resources, experience 
and organizational structure to successfully implement the provisions 
for which it is seeking authorization.
    EPA believes that all of these actions and efforts are adequate to 
support HDOH's program, which has a universe of one storage facility, 
eight closing or closed facilities, four other sites undergoing 
cleanup, 55 large generators and 450 smaller generators of hazardous 
waste. All of the staff of the hazardous waste management program, the 
equivalent of 12 full time employees (FTE), occupy permanent positions.
    7. Comment: A comment requested that HDOH develop, and get public 
involvement in, a policy to design and monitor supplemental 
environmental projects (SEP). The commenter said that they believed 
there was a SEP negotiated several years ago that awarded money to a 
non-profit agency without allowing other non-profit agencies to bid for 
the work. The commenter could not specify the office that developed the 
SEP or the violator involved.
    Response: Hawaii is not required by RCRA statute or regulation to 
develop a supplemental environmental projects policy. Therefore EPA 
cannot condition RCRA authorization on whether HDOH has a SEP policy or 
the process to develop a SEP policy. Nevertheless, HDOH has chosen to 
adopt the EPA SEP policy, which obtains penalties for violations, but 
allows a portion of the penalty to be replaced by environmental work 
that is directly related to the violation. The February 2001 settlement 
of the enforcement action against the University of Hawaii contains the 
first SEP developed by the HDOH hazardous waste management program. EPA 
is satisfied with HDOH's application of its penalty and SEP policies in 
the University of Hawaii case. EPA believes that the HDOH policy 
concerning hazardous waste penalties is consistent with the federal 
policy and provides

[[Page 55118]]

adequate enforcement of compliance with the hazardous waste rules for 
purposes of authorization.
    8. Comment: A comment proposed that, instead of giving the HDOH 
hazardous waste management program authorization, EPA give HDOH funding 
and training.
    Response: As is the case with other States, EPA will continue to 
support HDOH's hazardous waste management program with available 
funding, training opportunities and coordinated activities after 
program authorization. EPA has supported the program since 1988 with 
federal grant funds. The EPA has provided training to HDOH in several 
areas, including inspections and enforcement, health and safety, 
penalty and economic benefit calculations, information management and 
waste minimization. The EPA also conducts program evaluations and 
provides feedback to the HDOH. The EPA will continue to do all of these 
things even after the program is approved.
    9. Comment: A comment asked that the HDOH hazardous waste 
management program not be authorized until HDOH has developed criminal 
penalties.
    Response: RCRA requires that authorized States have the authority 
to assess criminal penalties of at least $10,000 per day for each 
violation and imprisonment for at least six months. The criminal 
remedies must address the transport, permitting and used oil violations 
described at 40 CFR 271.16(a)(3)(ii). Under Hawaii Revised Statutes 
(HRS) Chapter 342J-9(c), Hawaii may assess criminal penalties up to 
$25,000 for each day of each violation or imprisonment for up to one 
year, or both; each of these provisions is more stringent than required 
for authorization. Additionally, the types of violations identified at 
HRS 342J-9(c) are consistent with the violations listed at 40 CFR 
271.16(a)(3)(ii). Furthermore, HRS Chapters, 342J-7(a), 342J-8, and 
342J-11 give Hawaii the authority to obtain injunctions against any 
person for any unauthorized activity which is endangering or causing 
damage to public health or the environment. Thus, Hawaii is authorized 
to assess criminal penalties, and such authority is consistent with the 
federal RCRA authorization requirements and therefore adequate for 
program authorization.
    10. Comment: The Petition to Withdraw raised issues with Hawaii's 
investigative and enforcement efforts in connection with a March 2001 
mercury release. Please note, today's action is not a final 
determination on the merits of the Petition to Withdraw.
    Response: EPA is working with Hawaii on the cleanup and enforcement 
activities surrounding the mercury release. The HDOH office responsible 
for hazardous waste cleanup and enforcement in Hawaii is the Hazard 
Evaluation and Emergency Response (HEER) Office. The HEER Office does 
not administer the hazardous waste management program that is the 
subject of this authorization decision. The HEER Office had the lead in 
managing the cleanup activities. However, the EPA Emergency Response 
Team, the United States Navy and Air Force, and other local agencies 
participated in the cleanup. Cleanup of the mercury release and 
disposal of the waste was completed on or around July 30, 2001. 
Currently, the HEER Office is investigating the circumstances of the 
release to identify the responsible parties and recover response costs. 
The status of a state's hazardous waste cleanup activities however is 
not part of the criteria for determining a state hazardous waste 
management program's eligibility for RCRA authorization.

D. What Decisions Have We Made in This Rule?

    EPA has made the final determination that Hawaii's application 
meets all of the statutory and regulatory requirements established by 
RCRA as of May 25, 1998. Therefore, we are granting Hawaii final 
authorization to operate its hazardous waste management program 
described in the authorization application, 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 such states 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.

E. What Is the Effect of Today's Action?

    The effect of today's action is that persons in Hawaii that are 
subject to RCRA must comply with the authorized State requirements in 
lieu of the corresponding Federal requirements in order to comply with 
RCRA. Additionally, such persons must comply with any applicable 
Federally-issued requirements, such as, for example, HSWA regulations 
issued by EPA for which the State has not yet received authorization, 
and RCRA requirements that are not supplanted by authorized state-
issued requirements. 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 action.
    This action does not impose additional requirements on the 
regulated community because the regulations for which Hawaii is 
authorized are already effective under State law and are not changed by 
the act of authorization.
    EPA cannot delegate the Federal requirements for international 
export and transfrontier shipments of hazardous wastes at 40 CFR part 
262, subparts E and H. Although Hawaii has adopted these requirements 
verbatim from the Federal regulations in Title 11 of the Hawaii 
Administrative Rules, sections 11-260, 11-261, and 11-262, EPA will 
continue to implement those requirements. Hawaii is not authorized for 
the requirements for international export and transfrontier shipments 
of hazardous wastes at 40 CFR part 262, subparts E and H.

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

    On May 5, 1999, Hawaii submitted a final complete program 
application, seeking authorization in accordance with 40 CFR 271.3. 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 25, 1998. 
We are granting Hawaii final authorization for the hazardous waste 
management 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 and are federally enforceable. Upon authorization, the 
State's hazardous waste management rules that

[[Page 55119]]

are either equivalent to or more stringent than the corresponding 
federal rules will apply in lieu of the federal rules. State hazardous 
waste requirements that are broader in scope than the federal program 
will not be part of the authorized program and are not federally 
enforceable. The applicable authorized rules are identified in the 
chart below. In the discussion below, we also identify the state 
hazardous waste requirements that are more stringent or broader in 
scope.

------------------------------------------------------------------------
   Federal hazardous waste requirements      Analogous state  authority
------------------------------------------------------------------------
40 CFR parts 260-266, 268, 270, 273, and    Hawaii Administrative Rules
 279, through May 25, 1998.                  (HAR) 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.
------------------------------------------------------------------------

Federal Provisions That Are Not Included in This Authorization

    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, and
     Petitions concerning equivalent testing methods, waste 
exclusion, recycled materials and devices classified as boilers.
    Adoption of these rulemaking petition procedures is not required 
for RCRA authorization. EPA will continue to implement those 
requirements. Although Hawaii did not adopt these procedures, Hawaii 
did adopt some similar procedures which are discussed below with other 
more stringent requirements.
    Where EPA grants a petitioner an exclusion from federally-issued 
standards under these procedures, it is advisable that the petitioner 
contact the State regulatory authority to determine the current status 
of its waste under State law. It is important for petitioners to 
contact Hawaii because States are free to impose requirements that are 
more stringent or broader in scope than Federal programs (RCRA section 
3009 and 40 CFR 271.1(i)).

More Stringent Authorized State Hazardous Waste Requirements

    Authorized State hazardous waste requirements are either equivalent 
to or more stringent than the corresponding federal requirements. The 
Hawaii hazardous waste requirements authorized with today's action 
include state requirements that are more stringent than the 
corresponding federal requirements.
    Hawaii's program is more stringent in the manner in which it 
addresses federally approved variances and exclusions. Hawaii's 
hazardous waste management program includes procedures by which a 
petitioner may seek an exclusion or variance under State law where EPA 
has previously approved an exclusion or variance under RCRA. Where EPA 
has excluded a waste from regulation under 40 CFR 260.22, the exclusion 
will only be effective under Hawaii law if Hawaii adopts the exclusion 
by rule, pursuant to HAR 11-260-42. Similarly, under HAR 11-268-51, any 
extension, variance or alternative treatment approval granted by EPA 
under 40 CFR 268.5, 268.6 and 268.44 will not be effective in the state 
unless Hawaii adopts it by rule. Finally, under HAR 11-264-
1082(c)(4)(ii) the State must separately approve any alternative 
treatment method approved by EPA under 40 CFR 268.42(b). Given the 
additional procedures required by Hawaii, these State requirements are 
considered more stringent than the federal program.
    Hawaii has also adopted some more stringent requirements concerning 
permits. Hawaii established a shorter permit term (five years instead 
of ten years) than the federal program, and is therefore more stringent 
than the federal program. Additionally, Hawaii reviews hazardous waste 
land disposal permits three years rather than five years after 
issuance, which is also more stringent than the federal program. 
However, there are currently no such facilities in Hawaii. Furthermore, 
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 
be terminated as soon as Hawaii obtains federal authorization for its 
hazardous waste management program pursuant to HAR 11-271-15(f).

Broader in Scope State Hazardous Waste Requirements

    States are free to impose hazardous waste requirements that are 
broader in scope than the Federal hazardous waste management program. 
Broader in scope requirements will not be part of the authorized 
program.
    Hawaii did not adopt 40 CFR 261.4(b)(5) and therefore does not 
exclude drilling fluids, produced waters, and other wastes associated 
with the exploration, development, or production of crude oil, natural 
gas or geothermal energy from regulation as hazardous waste. With 
respect to the management of those wastes, the Hawaii program is 
therefore 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 and are not federally enforceable.
    Hawaii's used oil requirements also reflect some departure from the 
federal program. Hawaii requires persons who transport, market or 
recycle used oil or used oil fuel to obtain a permit from HDOH, which 
requirement is broader in scope than the federal program. Hawaii also 
requires an annual report 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. This requirement is broader in scope 
than the federal program.
    Hawaii adds a requirement that any person who imports hazardous 
waste from a foreign country or from a state into Hawaii must submit 
additional information in writing to the State within 30 days after the 
waste arrives. This requirement is broader in scope than the federal 
program.

Summary of More Stringent and Broader in Scope Requirements

    In summary, EPA considers the following State requirements to be 
more stringent than the Federal requirements:
     HAR 11-268-51, because the State must separately approve 
any exclusion, variance or alternative treatment method approved by EPA 
under 40 CFR 268.5, 268.6, 268.42(b) and 268.44; 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 are part of Hawaii's authorized program and are 
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 
persons must comply with these requirements in accordance with state

[[Page 55120]]

law, they will not be RCRA requirements under the authorized program 
and are not federally enforceable.
     HAR 11-261-4(b)(5), because the State 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, and the Federal requirements 
exempt them from regulation;
     HAR 11-262-60 and HAR 11-262-61, because, unlike the 
Federal program, the State requires 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 the Federal program has no such permitting 
requirement; 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, in addition to the biennial reports required 
by RCRA.

G. 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 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).

H. 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 transfer 
the administration of any RCRA hazardous waste permits or portions of 
permits which we issued prior to the effective date of this 
authorization to Hawaii. In the Notice of Tentative Determination, EPA 
said that it would continue to administer any RCRA hazardous waste 
permits or portions of permits issued by EPA prior to the effective 
date of this authorization. However, under the Memorandum of Agreement 
with Hawaii, EPA and HDOH have agreed that HDOH will administer the 
permits or portions of permits issued by EPA prior to authorization. 
EPA 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.

I. How Does Today's Action Affect Indian Country (18 U.S.C. 115) in 
Hawaii?

    There are no Federally-recognized Indian lands in Hawaii.

J. What Is Codification and Is EPA Codifying Hawaii's Hazardous 
Waste Management 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 
management program into the Code of Federal Regulations. EPA does this 
by referencing the authorized State rules in 40 CFR part 272. We are 
reserving the amendment of 40 CFR part 272, subpart M, for codification 
of Hawaii's program at a later date.

K. 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, a decision to authorize Hawaii 
for these revisions is not subject to review by OMB. Furthermore, this 
rule 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 authorization will 
effectively suspend the applicability of certain Federal regulations in 
favor of Hawaii's program, thereby eliminating duplicative requirements 
for handlers of hazardous waste in the State. Authorization will not 
impose any new burdens on small entities. Accordingly, I certify that 
authorization for these revisions 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 
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 (Public Law 104-4). For the same reason, this action does not have 
tribal implications within the meaning of Executive Order 13175 (65 FR 
67249, November 6, 2000). It does not have substantial direct effects 
on tribal governments, on the relationship between the Federal 
government and the Indian tribes, or on the distribution of power and 
responsibility between the Federal government and Indian tribes, as 
specified in Executive Order 13175. This action does 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 management 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 this action in

[[Page 55121]]

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 will not impose an information 
collection burden under the provisions of the Paperwork Reduction Act 
of 1995 (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 will submit 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 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). This 
action will be effective November 13, 2001.

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: 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: October 26, 2001.
Laura Yoshii,
Acting Regional Administrator, Region 9.
[FR Doc. 01-27465 Filed 10-31-01; 8:45 am]
BILLING CODE 6560-50-P