[Federal Register Volume 87, Number 85 (Tuesday, May 3, 2022)]
[Rules and Regulations]
[Pages 26136-26139]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-09430]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[EPA-R09-RCRA-2021-0628; FRL-FRL-9760-02-R9]


Hawaii: Final Authorization of State Hazardous Waste Management 
Program Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking direct 
final action on the authorization of Hawaii's changes to its hazardous 
waste program under the Resource Conservation and Recovery Act (RCRA). 
These changes correspond to certain Federal rules promulgated between 
July 1, 2016, and June 30, 2020, (also known as RCRA Clusters XXV to 
XXVIII) and for authorization of state-initiated changes that are 
equivalent to or more stringent than the Federal program. We have 
determined that these changes satisfy all requirements needed for final 
authorization.

DATES: This authorization is effective on July 5, 2022 without further 
notice, unless the EPA receives adverse comment by June 2, 2022. If the 
EPA receives adverse comment, we will publish a timely withdrawal in 
the Federal Register informing the public that the authorization will 
not take effect.

ADDRESSES: All documents in the docket are listed in the 
www.regulations.gov index. Publicly available docket materials are 
available either electronically in www.regulations.gov or in hard copy. 
You may also view Hawaii's application by contacting the Hawaii 
Department of Health Solid and Hazardous Waste Branch at (808) 586-
4226, Monday through Friday, 8:30 a.m. to 4:30 p.m.
    Instructions: Submit your comments to EPA, identified by Docket ID 
No. EPA-R09-RCRA-2021-0628, at https://www.regulations.gov. Follow the 
online instructions for submitting comments. Once submitted, comments 
cannot be edited or removed from Regulations.gov. EPA may publish any 
comment received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the web, cloud, or other file sharing 
system). The https://www.regulations.gov website is an ``anonymous 
access'' system, which means EPA will not know your identity or contact 
information unless you provide it in the body of your comment. If you 
send an email comment directly to EPA without going through https://www.regulations.gov, your email address will be automatically captured 
and included as part of the comment that is placed in the public docket 
and made available on the internet. If you submit an electronic 
comment, EPA recommends that you include your name and other contact 
information in the body of your comment. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses.

FOR FURTHER INFORMATION CONTACT: Dani Allen-Williams, 
<a href="/cdn-cgi/l/email-protection#91d0fdfdf4ffc6f8fdfdf8f0fce2bff5f0fff8d1f4e1f0bff6fee7"><span class="__cf_email__" data-cfemail="21604d4d444f76484d4d48404c520f45404f48614451400f464e57">[email protected]</span></a>, 415-972-3800.

SUPPLEMENTARY INFORMATION:

[[Page 26137]]

A. Why is the EPA using a direct final authorization?

    The EPA is publishing this authorization without a prior proposal 
because we view this as a noncontroversial action and anticipate no 
adverse comment. This action is a routine program change. However, in 
the ``Proposed Rules'' section of this issue of the Federal Register, 
we are publishing a separate document that will serve as the proposed 
rulemaking allowing the public an opportunity to comment. We will not 
institute a second comment period on this action. Any parties 
interested in commenting must do so at this time. For further 
information about commenting on this authorization, see the ADDRESSES 
section of this document.
    If the EPA receives adverse comment, we will publish a timely 
withdrawal in the Federal Register informing the public that this 
direct final authorization will not take effect. We will address all 
public comments in a subsequent final authorization and base any 
further decision on the authorization of the state program changes 
after considering all comments received during the comment period.

B. Why are revisions to State programs necessary?

    States that have received final authorization from the EPA under 
RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous 
waste program that is equivalent to, consistent with, and no less 
stringent than the Federal program. As the Federal program changes, 
states must change their programs and ask the 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 the EPA's regulations in 40 Code of Federal 
Regulations (CFR) parts 124, 260 through 268, 270, 273, and 279.
    New Federal requirements and prohibitions imposed by Federal 
regulations that the EPA promulgates pursuant to the Hazardous and 
Solid Waste Amendments of 1984 (HSWA) take effect in authorized states 
at the same time they take effect in unauthorized states. Thus, the EPA 
will implement those requirements and prohibitions in Hawaii, including 
the issuance of new permits implementing those requirements, until the 
State is granted authorization to do so.

C. What decisions has the EPA made in this authorization?

    Hawaii submitted a complete program revision application dated 
October 15th, 2021, seeking authorization of changes to its hazardous 
waste program corresponding to certain Federal rules promulgated 
between July 1, 2016, and June 30, 2020, plus state-initiated changes 
discussed in Section G below. The EPA concludes that Hawaii's 
application to revise its authorized program meets all of the statutory 
and regulatory requirements established under RCRA, as set forth in 
RCRA section 3006(b), 42 U.S.C. 6926(b), and 40 CFR part 271. 
Therefore, the EPA proposes to grant Hawaii final authorization to 
operate its hazardous waste program with the changes described in the 
authorization application, and as outlined below in section F of this 
document.
    Hawaii has responsibility for permitting treatment, storage, and 
disposal facilities within its borders (except in Indian country) and 
for carrying out the aspects of the RCRA program described in its 
program revision application, subject to the limitations of HSWA, as 
discussed above.

D. What is the effect of this authorization decision?

    The effect of this decision is that the changes described in 
Hawaii's authorization application will become part of the authorized 
State hazardous waste program and will therefore be federally 
enforceable. Hawaii will continue to have primary enforcement authority 
and responsibility for its State hazardous waste program. The EPA will 
maintain its authorities under RCRA sections 3007, 3008, 3013, and 
7003, including its authority to: Conduct inspections, and require 
monitoring, tests, analyses, and reports; enforce RCRA requirements, 
including authorized State program requirements, and suspend or revoke 
permits; and take enforcement actions regardless of whether the State 
has taken its own actions.
    This action does not impose additional requirements on the 
regulated community because the regulations for which the EPA is 
authorizing Hawaii are already effective under State law and are not 
changed by this action.

E. What has Hawaii previously been authorized for?

    Hawaii initially received final authorization on November 13th, 
2001, (66 FR 55115) to implement its base hazardous waste management 
program. Hawaii received authorization for revisions to its program on 
August 28, 2018 (83 FR 43772).

F. What changes is the EPA authorizing with this action?

    Hawaii submitted a final complete program revision application to 
EPA dated October 15th, 2021, seeking authorization of changes to its 
hazardous waste program that correspond to certain Federal rules 
promulgated between July 1, 2016, and June 30, 2020, (also known as 
RCRA Clusters XXV to XXVIII) and for authorization of state-initiated 
changes that are equivalent to or more stringent than the Federal 
program. EPA proposes to determine, subject to receipt of written 
comments that oppose this action, that Hawaii's hazardous waste program 
revisions are equivalent to, consistent with, and no less stringent 
than the Federal program, and therefore satisfy all the requirements 
necessary to qualify for authorization. Hawaii incorporates by 
reference the Federal RCRA regulations in effect as of July 1, 2020, in 
Hawaii Administrative Rules (HAR) Chapters 11-260.1 to 11-279.1 
(effective June 07, 2021). The applicable Federal rules and analogous 
State rules are identified in the table below.

------------------------------------------------------------------------
   Federal hazardous waste
         requirements                  Analogous State authority
------------------------------------------------------------------------
40 CFR parts 260-266, 268,     Hawaii Administrative Rules (HAR)
 270, 273, 279, effective       chapters 11-260.1-266.1, 11-268.1, 11-
 July 1, 2020.                  270.1, 11-273.1, 11-279.1, effective
                                June 07, 2021.
40 CFR Part 124 subparts A     HAR chapter 11-271.1, effective June 07,
 and B effective July 1, 2020.  2021.
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[[Page 26138]]

G. Where are the revised State rules different than the Federal rules?

    Under RCRA section 3009, the EPA may not authorize state rules that 
are less stringent than the Federal program. Any state rules that are 
less stringent do not supplant the Federal regulations. State rules 
that are broader in scope than the Federal program requirements are 
allowed but do not become part of the enforceable Federal program. 
State rules that are equivalent to or more stringent than the Federal 
program may be authorized, in which case they are enforceable by the 
EPA.
    This section does not discuss the program differences previously 
published in Hawaii's previous program authorization in 2018, at 83 FR 
43772 (Aug. 28, 2018). Areas identified in the 2018 program 
authorization as more stringent or broader in scope than the Federal 
program have been carried forward into the new regulations as 
amendments or additions to the incorporation by reference of the 
Federal regulations. This section discusses new State requirements that 
are equivalent to or more stringent than the Federal program and thus 
authorized.

1. Solar Panel Universal Waste

    The state has added ``solar panels'' to chapter HAR 11-273.1, as a 
category of universal waste and defined waste management and labeling/
marking requirements for this type of universal waste. Many different 
types of solar panels may be toxicity characteristic hazardous waste 
due to the presence and concentration of one or more metals or 
metalloids (e.g., arsenic, cadmium, chromium, copper, lead, selenium, 
silver). The state also determined that solar panels (as defined in 
chapters HAR 11-260.1 and 11-273.1) as a category meet the criteria of 
40 CFR 273.81. EPA allows authorized states to create regulations for 
state-only universal wastes provided that these criteria are met for 
the waste or waste category, including the key requirements that 
universal waste management is sufficiently protective of human health 
and the environment and that regulation as universal waste increases 
the likelihood of similar unregulated wastes (such as Very Small 
Quantity Generators (VSQG) or household wastes) being diverted from 
non-hazardous to hazardous waste management systems. The state 
regulations defining solar panels and associated management standards 
were crafted based on comparable universal waste regulations proposed 
and/or codified by other authorized state hazardous waste programs.

2. Removal of Electronic Nicotine Delivery Systems (ENDS) From the 
Definition of Pharmaceutical

    EPA's ``Management Standards for Hazardous Waste Pharmaceuticals 
and Amendment to the P075 Listing for Nicotine'' rule (84 FR 5816 (Feb. 
22, 2019)) establishes streamlined standards for handling hazardous 
waste pharmaceuticals to better fit the operations of the healthcare 
sector while maintaining protection of human health and the 
environment. In the Federal rule, the definition ``pharmaceutical'' 
includes ``any electronic nicotine delivery system (e.g., electronic 
cigarette or vaping pen); or any liquid nicotine (e-liquid) packaged 
for retail sale for use in electronic nicotine delivery systems (e.g., 
pre-filled cartridges or vials).'' This inclusion of electronic 
nicotine delivery systems (ENDS), including e-liquids, in the 
definition ``pharmaceutical'' also means that retailers of ENDS are 
included in the Federal definition ``healthcare facility.'' The State 
has adopted definitions that separate ENDS from pharmaceuticals and 
ENDS retailers from healthcare facilities. The management standards for 
handling these wastes remain the same as those in the Federal rules, 
making the State rule functionally equivalent.

3. Emergency Telephone Numbers

    The State allows the use of emergency telephone numbers (which may 
be a work cell phone) in lieu of home addresses and phone numbers for 
emergency coordinators in contingency plans for Treatment, Storage, and 
Disposal Facilities in 40 CFR 264.52(d), as incorporated and amended in 
chapter HAR 11-264.1. This is consistent with the change made to 
contingency plans for generators as part of EPA's Generator 
Improvements Rule.

4. Regulatory Clarifications

a. Applicability of Solvent-Contaminated Wipes Exclusions
    A reference to the definition of solvent-contaminated wipes (in 40 
CFR 260.10, as incorporated and amended in chapter HAR 11-260.1,) is 
added to 40 CFR 261.4(a)(26) and (b)(18), as incorporated and amended 
in chapter HAR 11-261.1, to clarify the scope of these conditional 
exclusions.
b. Generator Improvement Rule Cross-References
    Remaining cross-references to 40 CFR 261.5 and 262.34, sections 
that were removed by the Generator Improvements Rule, have been 
corrected throughout the State rules.
c. Pharmaceuticals Waste Codes for Manifests
    The State rules allow healthcare facilities to use either the four-
character code ``PHRM'' or the word/code ``PHARMS'' in block 13 of the 
uniform hazardous waste manifest (40 CFR 266.508, as incorporated and 
amended in chapter HAR 11-266.1). The Federal rules currently require 
``PHARMS,'' but data system limitations have led EPA to issue guidance 
allowing the use of either code.
d. References to 40 CFR Parts 271 and 272
    40 CFR part 271 contains the requirements for state program 
authorization and some state programs are codified in 40 CFR part 272. 
The State regulations do not incorporate or contain equivalents to 40 
CFR parts 271 and 272, so the State has removed cross-references to 
these parts from chapters HAR 11-260.1 to 11-273.1.
e. Applicable Rules for Non-Hazardous Contents Drained From Aerosol 
Cans
    The State has changed ``or'' to ``and'' in ``applicable Federal, 
State, and local solid waste regulations'' in 40 CFR 273.13(e)(4)(vi) 
and 273.33(e)(4)(vi), as incorporated and amended in chapter HAR 11-
273.1. This clarifies the Federal intent that all applicable solid 
waste regulations apply to the non-hazardous contents drained from 
universal waste aerosol cans.

H. Who handles permits after the authorization takes effect?

    Hawaii will continue to issue permits for all the provisions for 
which it is authorized and will administer the permits it issues. 
Section 3006(g)(1) of RCRA, 42 U.S.C. 6926(g)(1), gives EPA the 
authority to issue or deny permits or parts of permits for requirements 
for which the State is not authorized. Therefore, whenever EPA adopts 
standards under HSWA for activities or wastes not currently covered by 
the authorized program, EPA may process RCRA permits in Hawaii for the 
new or revised HSWA standards until Hawaii has received final 
authorization for such new or revised HSWA standards.

1. What is codification and is the EPA codifying Hawaii's hazardous 
waste program as authorized in this authorization?

    Codification is the process of placing citations and references to 
the state's statutes and regulations that comprise the state's 
authorized hazardous waste

[[Page 26139]]

program into the Code of Federal Regulations. The EPA does this by 
adding those citations and references to the authorized state rules in 
40 CFR part 272. The EPA is not codifying the authorization of Hawaii's 
revisions at this time. However, the EPA reserves the ability to amend 
40 CFR part 272, subpart L, for the authorization of Hawaii's program 
changes at a later date.

J. Statutory and Executive Order Reviews

    The Office of Management and Budget (OMB) has exempted this action 
from the requirements of Executive Order 12866 (58 FR 51735, October 4, 
1993) and 13563 (76 FR 3821, January 21, 2011). This action authorizes 
state requirements for the purpose of RCRA section 3006 and imposes no 
additional requirements beyond those imposed by state law. Therefore, 
this action is not subject to review by OMB. I certify that this action 
will not have a significant economic impact on a substantial number of 
small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et 
seq.). Because this action authorizes pre-existing requirements under 
state law and does not impose any additional enforceable duty beyond 
that required by state law, it does not contain any unfunded mandate or 
significantly or uniquely affect small governments, as described in the 
Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538). For the same 
reason, this action also does not significantly or uniquely affect the 
communities of tribal governments, as specified by Executive Order 
13175 (65 FR 67249, November 9, 2000). This action will not have 
substantial direct effects on the states, on the relationship between 
the National Government and the states, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132 (64 FR 43255, August 10, 1999), 
because it merely authorizes state requirements as part of a state RCRA 
hazardous waste program without altering the relationship or the 
distribution of power and responsibilities established by RCRA. This 
action also is not subject to Executive Order 13045 (62 FR 19885, April 
23, 1997) because it is not economically significant and it does not 
make decisions based on environmental health or safety risks. This 
action is not subject to Executive Order 13211, ``Actions Concerning 
Regulations That Significantly Affect Energy Supply, Distribution, or 
Use'' (66 FR 28355, May 22, 2001), because it is not a significant 
regulatory action under Executive Order 12866.
    Under RCRA section 3006(b), the 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 the 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) do not apply. As required by 
section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in 
issuing this authorization, the EPA has taken the necessary steps to 
eliminate drafting errors and ambiguity, minimize potential litigation, 
and provide a clear legal standard for affected conduct. The EPA has 
complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by 
examining the takings implications of this action in accordance with 
the ``Attorney General's Supplemental Guidelines for the Evaluation of 
Risk and Avoidance of Unanticipated Takings'' issued under the 
executive order. This action does not impose an information collection 
burden under the provisions of the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.). ``Burden'' is defined at 5 CFR 1320.3(b). 
Executive Order 12898 (59 FR 7629, February 16, 1994), as amended by 
Executive Order 14008 (86 FR 7619, February 1, 2021), establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States. Because this action authorizes pre-
existing state rules that are at least equivalent to, and no less 
stringent than existing Federal requirements, and imposes no additional 
requirements beyond those imposed by state law, and there are no 
anticipated significant adverse human health or environmental effects, 
this authorization is not subject to Executive Order 12898.
    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. The 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).

    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, and 6974(b).

List of Subjects in 40 CFR Part 271

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous waste, Hazardous waste 
transportation, Intergovernmental relations, Penalties, Reporting and 
recordkeeping requirements.

    Dated: April 25, 2022.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2022-09430 Filed 5-2-22; 8:45 am]
BILLING CODE 6560-50-P


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