[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:
    <bullet> Do inspections, and require monitoring, tests, analyses or 
reports;
    <bullet> 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
    <bullet> 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.

------------------------------------------------------------------------
     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:
    <bullet> 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
    <bullet> 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.
    <bullet> 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;
    <bullet> 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;
    <bullet> 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
    <bullet> 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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