[Federal Register Volume 66, Number 194 (Friday, October 5, 2001)]
[Proposed Rules]
[Pages 50963-50966]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-24594]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 281
[FRL--7071-3]
Hawaii: Tentative Approval of State Underground Storage Tank
Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule; notice of tentative determination on application
of State of Hawaii for final approval, public hearing and public
comment period.
-----------------------------------------------------------------------
SUMMARY: The State of Hawaii has applied for approval of its
underground storage tank program for petroleum and hazardous substances
under Subtitle I of the Resource Conservation and Recovery Act (RCRA).
The Environmental Protection Agency (EPA) has reviewed the Hawaii
application and has made the tentative decision that Hawaii's
underground storage tank program for petroleum and hazardous substances
satisfies all of the requirements necessary to qualify for approval.
The Hawaii application for approval is available for public review and
comment. A public hearing will be held to solicit comments on the
application, unless insufficient public interest is expressed.
DATES: A public hearing is scheduled for November 13, 2001, unless
insufficient public interest is expressed in holding a hearing. EPA
reserves the right to cancel the public hearing if sufficient public
interest is not communicated to EPA in writing by November 5, 2001. EPA
will determine by November 9, 2001, whether there is sufficient
interest to hold the public hearing. The State of Hawaii will
participate in the public hearing held by EPA on this subject. Written
comments on the Hawaii application, as well as requests to present oral
testimony, must be received by the close of business on November 5,
2001.
ADDRESSES: Copies of the Hawaii application are available at the
following addresses for inspection and copying:
U.S. EPA Region 9, Library, 13th Floor, 75 Hawthorne Street, San
Francisco, California 94105, Phone: (415) 744-1510, 9 am through 4 pm,
Pacific Daylight Savings Time; 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, 7 am through 3:30 pm, Hawaii
Standard Time; Hawaii Department of Health (HDOH), Solid and Hazardous
Waste Branch, 919 Ala Moana Boulevard, Room 212, Honolulu, Hawaii
96814, Phone: (808) 586-4226, 8 am through 4 pm, Hawaii Standard Time;
HDOH, Environmental Management Division, 79-7595 Haukapila Street,
Kealakekua, HI 96750, Phone number: (808) 322-7011, 8 am through 4 pm,
Hawaii Standard Time; HDOH, Environmental Health Facility, 1582
Kamehameha Avenue, Hilo, HI 96720, Phone number: (808) 933-0917, 8 am
through 4 pm, Hawaii Standard Time; HDOH, Maui District Health Office,
54 High Street, Wailuku, HI 96793, Phone number: (808) 984-8230, 8 am
through 4 pm, Hawaii Standard Time; HDOH, Kauai District Health Office,
3040 Umi Street, Lihue, HI 96766, Phone number: (808) 241-3323, 8 am
through 4 pm, Hawaii Standard Time; or U.S. EPA Docket Clerk, Office of
Underground Storage Tanks, c/o RCRA Information Center, 1235 Jefferson
Davis Highway, Arlington, Virginia 22202, Phone: (703) 603-9231, 9 am
through 5 pm, Eastern Daylight Savings Time.
Written comments should be sent to Ms. April Katsura of the
Underground Storage Tank Program Office, U.S. EPA Region 9, Mail Code
WST-8, 75 Hawthorne Street, San Francisco, California 94105.
Unless insufficient public interest is expressed, EPA will hold a
public hearing on the State of Hawaii's application for program
approval on November 13, 2001 at 6 p.m., Hawaii Standard Time, at the
Kawananakoa Middle School, 49 Funchal Street, Honolulu, Hawaii 96813,
Phone: (808) 587-4430. Anyone who wishes to learn whether or not the
public hearing on the State's application has been canceled should
telephone one of the following contacts on or before November 9, 2001:
Ms. April Katsura of the Underground Storage Tank Program Office,
U.S. EPA Region 9, Mail Code WST-8, 75 Hawthorne Street, San Francisco,
California 94105, Phone: (415) 744-2024; or
Mr. Steven Y.K. Chang, P.E., Manager, Solid and Hazardous Waste
Branch, Hawaii Department of Health, 919 Ala Moana Boulevard, Room 212,
Honolulu, Hawaii, 96814, Phone: (808) 586-4226.
FOR FURTHER INFORMATION, CONTACT: Ms. April Katsura of the Underground
Storage Tank Program Office, U.S. EPA Region 9, Mail Code WST-8, 75
Hawthorne Street, San Francisco, California 94105, Phone: (415) 744-
2024.
SUPPLEMENTARY INFORMATION:
I. Why Are State Programs Approved?
Section 9004 of RCRA, 42 U.S.C. 6991c, authorizes EPA to approve
State underground storage tank programs to operate in the State in lieu
of the Federal underground storage tank (UST) program, subject to the
authority retained by EPA in accordance with RCRA. Program approval may
be granted by EPA pursuant to RCRA section 9004(b), if the Agency finds
that the State program: (1) Is ``no less stringent'' than the Federal
program for the seven elements set forth at RCRA section 9004(a)(1)
through (7); (2) includes the notification requirements of RCRA section
9004(a)(8); and (3) provides for adequate enforcement of compliance
with UST standards of RCRA section 9004(a). Note that RCRA sections
9005 (on information-gathering) and 9006 (on federal enforcement) by
their terms apply even in states with programs approved by EPA under
RCRA section 9004. Thus, the Agency retains its authority under RCRA
sections 9005 and 9006, 42 U.S.C. 6991d and 6991e, and other applicable
statutory and regulatory provisions to undertake inspections and
enforcement actions in approved states. With respect to such an
enforcement action, the Agency will rely on federal sanctions, federal
inspection authorities, and federal procedures rather than the state
authorized analogues to these provisions.
II. What Has EPA Tentatively Decided With Respect to Hawaii's
Application for Program Approval?
EPA has reviewed the Hawaii application, and has tentatively
determined that the State's UST program for petroleum and hazardous
substances meets all of the requirements necessary to qualify for final
approval.
The State of Hawaii submitted its draft state program approval
application to EPA by letter dated February 23, 2000. After reviewing
the package, EPA submitted comments to the State for review. Hawaii
submitted its complete state program approval application for EPA's
tentative approval on May 23, 2001.
On January 12, 2000, Hawaii adopted UST program regulations for
petroleum and hazardous substance underground storage tanks. These
regulations became effective on January 28, 2000. Prior to the adoption
of the regulations, Hawaii
[[Page 50964]]
solicited public comment and held a public hearing on the draft UST
program regulations.
EPA will hold a public hearing on its tentative decision on
November 13, 2001, unless insufficient public interest is expressed.
The public may also submit written comments on EPA's tentative
determination until November 5, 2001. Copies of the Hawaii application
are available for inspection and copying at the locations indicated in
the addresses section of this document.
EPA will consider all public comments on its tentative
determination received at the hearing, or received in writing during
the public comment period. Issues raised by those comments may be the
basis for a decision to deny final approval to Hawaii. EPA expects to
make a final decision on whether or not to approve Hawaii's program
within 60 days of the public hearing, and will give notice of it in the
Federal Register. The document will include a summary of the reasons
for the final determination and a response to all major comments.
III. Where Are the State Rules Different From the Federal Rules?
States may enact laws more stringent than their federal
counterparts. See RCRA section 9008, 42 U.S.C. 6991b. In addition,
states may enact laws which are broader in scope than their federal
counterparts; that is, the state laws have no counterpart in the
federal UST program. This authority is specifically codified in 40 CFR
281.12(a)(3). State requirements that go beyond the scope of the
Federal program are not part of the authorized program and EPA cannot
enforce them. Although you must comply with these requirements in
accordance with Hawaii law, they are not RCRA requirements. The
statutory and regulatory provisions we have tentatively decided to
authorize are found generally at Hawaii Revised Statutes (``HRS'')
sections 342L-1 through 342L-53 and Hawaii Administrative Rules
(``HAR'') 11-281-01 through 11-281-131. However, we consider the
following State requirements, which pertain to the provisions involved
in this tentative decision, to go beyond the scope of the Federal
program. The following analysis of which requirements are broader in
scope differs in some ways from the requirements which Hawaii
identified as being broader in scope than the Federal program in its
application.
1. Hawaii's definition of ``owner,'' set forth at HRS section 342L-
1, is broader in scope than the Federal definition of ``owner'' (see
RCRA section 9001(3), 42 U.S.C. 6991(3), and 40 CFR 280.12) to the
extent that it includes persons who do not participate in the
management of an UST or tank system who are otherwise not engaged in
petroleum production, refining and marketing, but who hold indicia of
ownership primarily to protect a security interest in the tank or tank
system. More specifically, Hawaii's definition is broader in scope to
the extent it requires such persons to comply with the technical
standards and financial responsibility requirements since such persons
are excluded from those requirements of the Federal UST program
pursuant to 40 CFR 280.200 through 280.230.
2. Hawaii's UST program contains permitting requirements. This
aspect of Hawaii's program is broader in scope than the Federal program
since the Federal UST program does not include analogous permitting
requirements. The following provisions pertain to Hawaii's permitting
requirements: HRS section 342L-1 (definition of ``permit''); HRS
section 342L-4 (permits procedures); HRS section 342L-31 (permit
requirements and transfer of permit); HAR 11-281-03 (definitions of
``installation,'' ``operate'' and ``permit''); HAR 11-281-23 (permit
requirement); HAR 11-281-24(a) (application for a permit); HAR 11-281-
24(b) (permit fee); HAR 11-281-24(c)(3) (information required in permit
application); HAR 11-281-24(c)(4) (information required in permit
application); HAR 11-281-25(a) (5 year permit to install and operate);
HAR 11-281-25(b) (1 year to install UST); HAR 11-281-26 (permit
renewals); HAR 11-281-27 (action on and timely approval of permit
application); HAR 11-281-28 (permit conditions); HAR 11-281-29
(modification of permit and notice of change); HAR 11-281-30
(revocation or suspension of permit); HAR 11-281-31 (change in owner or
operator for a permit); HAR 11-281-131 (Appendices II [Application for
an UST Permit], IV [Application for Renewal of an UST Permit, June
1999], and V [Application for Transfer of an UST Permit, June 1999]);
and the provisions at HRS section 342L-8(b) (enforcement orders may
include suspension, modification or revocation of permit), HAR 11-281-
34 (maintenance of permit or variance), 11-281-35 (fees), and HAR 11-
281-45(c)(6) (maintenance of permit documentation), as they apply to
permits.
3. Hawaii's definitions of ``regulated substance'' at HRS section
342L-1 and HAR 11-281-03 are broader in scope than the Federal
definitions of ``regulated substance'' (see RCRA section 9001(2), 42
U.S.C. 6991(2), and 40 CFR 280.12). These definitions are broader in
scope to the extent that Hawaii includes substances that are designated
as regulated substances by the Hawaii Department of Health Services,
pursuant to subsection (3) of Hawaii's definition of the term, which
are neither (a) ``any substance defined in section 101(14) of the
Comprehensive Environmental Response, Compensation and Liability Act
(CERCLA) of 1980 (but not including any substance regulated as a
hazardous waste under subtitle C [of RCRA]'' or (b) ``[p]etroleum,
including crude oil or any fraction thereof that is liquid at standard
conditions of temperature and pressure (60 degrees Fahrenheit and 14.7
pounds per square inch absolute).'' (See 40 CFR 280.12.)
4. Hawaii's UST program contains provisions which allow the State
to grant variances. The Hawaii Attorney General's Office has indicated
that such variances may be granted where State rules are broader in
scope than the Federal regulations. To the extent that such variances
are granted, and the resulting requirements imposed pursuant to such
variances are broader in scope than the Federal UST requirements, the
requirements imposed by such variances will not be federally
enforceable as part of the authorized State program. However, to the
extent that any variances are issued for aspects of the State's program
which result in the imposition of requirements which are merely more
stringent than the Federal UST requirements, as opposed to broader in
scope, the resulting requirements of such variances will be federally
enforceable as part of the authorized State program. The following
provisions pertain to Hawaii's variance requirements: HRS section 342L-
1 (definition of ``variance''); HRS section 342L-5 (variance allowed);
HRS section 342L-6 (procedures for variances); HAR 11-281-03
(definition of ``variance''); HAR 11-281-32 (variance allowed); HAR 11-
281-33 (variance applications); 11-281-131 (Appendix VI [Application
for UST Variance, June 1999]); and the provisions at HRS section 342L-
8(b) (enforcement order may include suspension, modification or
revocation of variance), HAR 11-281-34 (maintenance of variance), 11-
281-35 (fees), and HAR 11-281-45(c)(6) (maintenance of variance
documentation), as they apply to variances.
5. HRS section 342L-14, which authorizes the Director of the
Department of Health to establish certain fees, is broader in scope
than the Federal UST program, which does not include an analogous
provision.
[[Page 50965]]
6. HRS sections 342L-50 through 342L-53, which relate to Hawaii's
response program for petroleum releases, are broader in scope than the
Federal UST program to the extent that Hawaii includes in the
definition of ``operator'' applicable to these provisions those persons
who do not participate in the management of an UST or tank system who
are otherwise not engaged in petroleum production, refining and
marketing, but who hold indicia of ownership primarily to protect a
security interest in the tank or tank system. Such persons are excluded
from the Federal definition of ``operator,'' for the purposes of the
Federal response program for petroleum releases, pursuant to RCRA
section 9003(h)(9), 42 U.S.C. 6991b(h)(9).
7. EPA and the State of Hawaii each exclude from their definitions
of the term ``underground storage tank'' or ``UST,'' farm or
residential tanks of 1,100 gallons or less capacity used for storing
motor fuel for noncommercial purposes. See 40 CFR 280.12 and HAR 11-
281-03, respectively. However, Hawaii's definitions of ``farm tank''
and ``underground storage tank'' or ``UST'' each indicate that a farm
tank must be used only for farm related purposes. Hence, Hawaii's
program is broader in scope than the Federal program to the extent that
Hawaii regulates 1,100 gallon capacity or less USTs storing motor fuel
on farms when such USTs are not used for either farm or commercial
purposes.
8. Hawaii's definition of the term ``reportable quantity'' at HAR
11-281-03 and the requirements relating to reporting and clean up of
spills and overfills of hazardous substances at HAR 11-281-64 are
broader in scope than the Federal requirement relating to reporting and
clean up of spills or overfills of hazardous substances under 40 CFR
280.53. The Hawaii threshold ``reportable quantity'' for
trichloropropane is 10 lbs. Since the Federal program does not require
reporting of releases of trichloropropane, the State's program is
broader than the Federal program to this limited extent.
9. Hawaii's requirement for posting of signs, which is found at HAR
11-281-73, requires owners and operators to post signs around the
perimeter of a site where contamination poses an immediate health risk
or where contaminated media is expose to the surface, if the Department
of Health determines that the posting of such signs is appropriate.
This requirement is broader in scope than the Federal UST program,
which does not include an analogous provision.
In addition, EPA is not proposing to authorize HRS section 342L-16,
which pertains to the ``nonliability of department personnel,'' or HRS
section 342L-23, which requires the Director of the Department of
Health to establish a directory of UST service providers. These
provisions are not a required part of a federally authorized UST
program nor are they considered enforcement-related or procedural
requirements. Furthermore, these provisions do not impose obligations
on UST owners or operators.
IV. Administrative Requirements
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 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.
Today's rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, local or tribal
governments or the private sector. The UMRA generally excludes from the
definition of ``Federal intergovernmental mandate'' duties that arise
from participation in a voluntary Federal program. Hawaii's
participation in EPA's state program approval process under RCRA
Subtitle I is voluntary. Thus, today's rule is not subject to the
requirements of sections 202 and 205 of the UMRA.
In addition, EPA has determined that this rule contains no
regulatory requirements that might significantly or uniquely affect
small governments. Although small governments may own and/or operate
underground storage tanks, they are already subject to the regulatory
requirements under the existing State requirements that EPA is now
tentatively approving and, thus, are not subject to any additional
significant or unique requirements by virtue of this action. Thus, the
requirements of section 203 of the UMRA also do not apply to today's
rule.
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 the 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; or (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 action 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 own and/or operate underground storage tanks in Hawaii
are already subject to Hawaii's underground storage tank requirements
which EPA is now tentatively approving. This action
[[Page 50966]]
merely tentatively approves, for the purpose of RCRA section 9004,
those existing State requirements.
Compliance With Executive Order 12866 (Regulatory Planning and
Review)
The Office of Management and Budget has exempted this rule from the
requirements of Executive Order 12866.
Compliance With Executive Order 13045 (Children's Health)
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 approves a state program.
Compliance With Executive Order 13175 (Consultation and
Coordination with Indian Tribal Governments)
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and the Indian tribes,
or on the distribution of power and responsibilities between the
federal government and Indian tribes.''
This proposed rule does not have tribal implications. As an initial
matter, there are no federally-recognized Indian tribes within the
State of Hawaii. The authorization of Hawaii's UST program will not
have substantial direct effects on tribal governments, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
Even if Indian Country existed within the State, Hawaii would not be
approved to implement the RCRA underground storage tank program in
Indian country and this action would have no effect on the underground
storage tank program that EPA would implement in Indian country within
the State. Thus, Executive Order 13175 does not apply to this proposed
rule.
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 action does not have
federalism implications. 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 it affects only one State. This action simply provides EPA
approval of Hawaii's voluntary proposal for its State underground
storage tank program to operate in lieu of the Federal underground
storage tank program in that State. Thus, the requirements of section 6
of the Executive Order do not apply.
National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 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 is
not considering the use of any voluntary consensus standards.
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.
Executive Order 13211 (Energy Effects)
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.
List of Subjects in 40 CFR Part 281
Environmental protection, Administrative practice and procedure,
Hazardous materials, State program approval, Underground storage tanks.
Authority: This action is issued under the authority of Section
9004 of the Solid Waste Disposal Act as amended, 42 U.S.C. 6912(a),
6926, 6974(b).
Dated: September 21, 2001.
Laura Yoshii,
Acting Regional Administrator, Region IX.
[FR Doc. 01-24594 Filed 10-4-01; 8:45 am]
BILLING CODE 6560-50-P