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Proposed Rule

Hawaii; Tentative Determination on Final Authorization of State Hazardous Waste Management Program

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Information about this document as published in the Federal Register.

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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.

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.

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FOR FURTHER INFORMATION CONTACT:

Rebecca Smith at the above address and (415) 744-1510.

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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. Start Printed Page 38803

In accordance with section 3006 of RCRA and 40 Code of Federal Regulations (CFR) 271.20 (d), the Agency will hold a public hearing on its tentative decision on July 27, 2000 at 7 p.m. at Kawananakoa Intermediate School Cafetorium, 49 Funchal St., Honolulu HI 96813. Prior to the hearing, the Agency will hold a public meeting on July 25, 2000 at 5 p.m. at Kawananakoa Intermediate School Cafetorium, 49 Funchal St., Honolulu, HI 96813 to provide information about the state's program and to answer questions from the public. The public may also submit written comments on EPA's tentative determination until August 4, 2000. Copies of Hawaii's application are available for inspection and copying at the locations indicated in the Addresses section of this notice.

The EPA will consider all relevant public comments on its tentative decision received at the hearing or submitted in writing during the public comment period. Issues raised by those comments may be the basis for a decision to deny final authorization to Hawaii. The EPA expects to make a final decision on whether or not to approve Hawaii's program by September 21, 2000 and will give notice of it in the Federal Register. The notice will include a summary of the reasons for the final determination and a response to all major comments.

C. What Will be the Effect of a Final Decision To Grant Authorization?

The effect of a final decision to grant authorization is that persons in Hawaii that are subject to RCRA will have to comply with the authorized State requirements instead of the equivalent federal requirements in order to comply with RCRA. Additionally, such persons will have to comply with any applicable federally-issued requirements, such as, for example, HSWA regulations issued by EPA for which the State has not received authorization, and RCRA requirements that are not delegable. Hawaii continues to have enforcement responsibilities under its state law to pursue violations of its hazardous waste management program. EPA continues to have independent authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, the authority to:

  • Do inspections, and require monitoring, tests, analyses or reports;
  • Enforce RCRA requirements (including state-issued statutes and regulations that are authorized by EPA and any applicable federally-issued statutes and regulations) and suspend or revoke permits; and
  • Take enforcement actions regardless of whether the State has taken its own actions.

A final decision to grant authorization will not impose additional requirements on the regulated community because the regulations for which Hawaii will be authorized are already effective, and will not be changed by such final decision.

D. What Rules are We Proposing To Authorize In Lieu of The Federal Requirements?

On May 5, 1999, Hawaii submitted a final complete program application, seeking authorization in accordance with 40 CFR 271.3. We are proposing to grant Hawaii final authorization for the hazardous waste program submitted. State hazardous waste management requirements that are either equivalent to or more stringent than the corresponding federal requirements will become part of the authorized State program.

In developing its hazardous waste management program, Hawaii adopted almost verbatim the federal hazardous waste regulations found in 40 CFR Parts 260—266, 268, 270, 273 and 279, effective through May 6, 1998. EPA cannot delegate the Federal requirements at 40 CFR 268.5, 268.6, 268.42(b) and 268.44. Hawaii did not adopt these requirements, but reserved those sections of its regulations. EPA will continue to implement those requirements. Upon authorization, the State's hazardous waste management rules that are either equivalent to or more stringent than the corresponding federal rules will apply in lieu of the federal rules. The applicable rules are identified below.

Federal hazardous waste requirementsAnalogous state authority
40 CFR Parts 260—266, 268, 270, 273, 279 through May 6, 1998Hawaii Administrative Rules (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.

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 Start Printed Page 38804program. Hawaii included a requirement that any person who imports hazardous waste from a foreign country or from a state into Hawaii must submit specific information in writing to the State within 30 days after the waste arrives. This requirement is broader in scope than the federal program. Additionally, Hawaii requires annual reports of transporters, processors, re-refiners and marketers, in addition to the RCRA required biennial reports, in order to allow the State to track legitimate handlers of used oil and thus better locate illegal handlers, which requirement is broader in scope than the federal program.

In summary, EPA considers the following State requirements to be more stringent than the Federal requirements:

  • HAR 11-264-1082(c)(4)(ii), because the State must separately approve any alternative treatment method approved by EPA under 40 CFR 268.42(b) granted for a tank, surface impoundment or container; and
  • HAR 11-270-50(a) and (d), because the State limits hazardous waste permits to five years (the federal limit is 10 years), and landfill permits to three years (the federal limit is five years).

These requirements will be part of Hawaii's authorized program and will be federally enforceable.

EPA considers that the following State requirements go beyond the scope of the federal program. EPA cannot enforce requirements that are broader in scope than the federal program. Broader in scope requirements will not be part of the authorized program. Although you must comply with these requirements in accordance with state law, they will not be RCRA requirements under the authorized program.

  • HAR 11-261-4(b)(5), because the State does not exempt drilling fluids, produced waters, and other wastes associated with the exploration, development, or production of crude oil, natural gas or geothermal energy from regulation;
  • HAR 11-262-60 and HAR 11-262-61, because the State adds the requirement that any person who imports hazardous waste from a foreign country or from any state into Hawaii must submit specified information in writing within 30 days after the waste arrives in the State;
  • HAR 11-279-90 to HAR 11-279-95, because the State requires that persons who transport, market or recycle used oil or used oil fuel obtain a State permit; and
  • HAR 11-279-48, 57 and HAR 11-279-76, because the State requires annual reports of used oil transporters, processors, re-refiners, and marketers.

E. How Will the State Enforce Compliance With the Rules?

Section 3006(b) of RCRA requires that the State provide adequate enforcement of compliance with the hazardous waste management requirements in order to receive authorization. We have tentatively determined that Hawaii can adequately enforce compliance with its hazardous waste management regulations. Hawaii's enforcement authorities include the power to issue, modify, suspend or revoke permits; collect information and enter and inspect the premises of persons who handle hazardous wastes; assess administrative penalties or initiate action in court for penalties or injunctive relief; issue abatement and corrective action orders; and pursue criminal violations. Hawaii's enforcement provisions are located at Hawaii Revised Statute (HRS) Chapter 342J (1993 and Supp. 1998).

F. Who Handles Permits After This Authorization Takes Effect?

Hawaii will issue permits for all the provisions for which it is authorized and will administer the permits it issues. EPA will continue to administer any RCRA hazardous waste permits or portions of permits which we issued prior to the effective date of this authorization until such permits expire or are terminated. When Hawaii either incorporates the terms and conditions of the Federal permits into State RCRA permits or issues State RCRA permits to those facilities, we will terminate those previously issued EPA permits and rely on the State RCRA permits. We will not issue any new permits or new portions of permits for the authorized provisions after the effective date of this authorization. EPA will continue to implement and issue permits for HSWA requirements for which Hawaii is not yet authorized.

G. What Is Codification and Is EPA Codifying Hawaii's Hazardous Waste Program as Authorized in This Rule?

Codification is the process of placing the State's statutes and regulations that comprise the State's authorized hazardous waste program into the Code of Federal Regulations. We do this by referencing the authorized State rules in 40 CFR Part 272. We reserve the amendment of 40 CFR part 272, subpart M for this authorization of Hawaii's program until a later date.

H. Regulatory Analysis and Notices

Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. L. 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year.

Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted.

Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

EPA has determined that section 202 and 205 requirements do not apply to today's action because this rule does not contain a Federal mandate that may result in annual expenditures of $100 million or more for State, local, and/or tribal governments in the aggregate, or the private sector. In fact, EPA's approval of State programs generally may reduce, not increase, compliance costs for the private sector. Further, as it applies to the State, this action does not impose a Federal intergovernmental mandate because UMRA does not include duties arising from participation in a voluntary federal program.

The requirements of section 203 of UMRA also do not apply to today's action because this rule contains no regulatory requirements that might significantly or uniquely affect small governments. Although small Start Printed Page 38805governments 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.Start Printed 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.

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List of Subjects in 40 CFR Part 271

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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).

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Dated: June 9, 2000.

James Sayer,

Acting Regional Administrator, Region IX.

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[FR Doc. 00-15297 Filed 6-21-00; 8:45 am]

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