[Federal Register Volume 83, Number 122 (Monday, June 25, 2018)]
[Proposed Rules]
[Pages 29520-29524]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-13573]



40 CFR Part 271

[EPA-R09-RCRA-2018-0267; FRL-9979-60--Region 9]

Hawaii: Proposed Authorization of State Hazardous Waste 
Management Program Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.


SUMMARY: Hawaii has applied to the Environmental Protection Agency 
(EPA) for final authorization of certain changes to its hazardous waste 
program under the Resource Conservation and Recovery Act, as amended 
(RCRA). These changes correspond to certain federal rules promulgated 
between May 26, 1998 and June 30, 2016 (also known as RCRA Checklist 
167 and Clusters IX through XXIV) plus several changes initiated by the 
State. EPA has reviewed Hawaii's application with regards to federal 
requirements and is proposing to authorize the changes. The EPA seeks 
public comment prior to taking final action.

DATES: Comments on this proposed rule must be received by July 25, 

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R09-RCRA-2018-0267 at http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. The 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. The 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). For additional submission methods, the full EPA 
public comment policy, information about CBI or multimedia submissions, 
and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.
    You may also view Hawaii's application from 8 a.m. to 4 p.m. Monday 
to Friday, excluding State holidays at Hawaii State Department of 
Health OPPPD, 1250 Punchbowl Street, Room 120, Honolulu, Hawaii 96813, 
phone number: 808-586-4188.

FOR FURTHER INFORMATION CONTACT: Laurie Amaro, U.S. Environmental 
Protection Agency, Region 9, Land Division, 75 Hawthorne Street (LND-1-
1), San Francisco, CA 94105, phone number: 415-972-3364, email: 
[email protected].


A. Why are revisions to State programs necessary?

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

B. What decisions has EPA made in this rule?

    On December 13, 2017, Hawaii submitted a final complete program 
revision application seeking authorization of changes to its hazardous 
waste program corresponding to certain federal rules promulgated 
between May 26, 1998 and June 30,

[[Page 29521]]

2016 (also known as RCRA Checklist 167 and Clusters IX through XXIV) 
plus several changes initiated by the State. EPA concludes that 
Hawaii's application to revise its authorized program meets all 
statutory and regulatory requirements established by RCRA, as set forth 
in RCRA section 3006(b), 42 U.S.C. 6926(b), and 40 CFR part 271. 
Therefore, EPA proposes to grant Hawaii final authorization to operate 
as part of its hazardous waste program the changes listed below in 
Section F of this document, as further described in the authorization 
    Hawaii has responsibility for permitting treatment, storage, and 
disposal facilities within its borders and for carrying out the aspects 
of the RCRA program described in its revised program application, 
subject to the limitations of the Hazardous and Solid Waste Amendments 
of 1984 (HSWA).

C. What is the effect of today's 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 therefore will be federally 
enforceable. Hawaii will continue to have primary enforcement authority 
and responsibility for its state hazardous waste program. EPA retains 
its authorities under RCRA sections 3007, 3008, 3013, and 7003, 
including its authority to:
     Conduct inspections, and require monitoring, tests, 
analyses or 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 Hawaii is being 
authorized by today's action are already effective, and are not changed 
by today's action.

D. What happens if EPA receives comments that oppose this proposed 

    EPA will consider all comments received during the comment period 
and address all such comments in a final rule. You may not have another 
opportunity to comment. If you want to comment on this authorization, 
you must do so during the comment period for this proposed rule.

E. For what has Hawaii previously been authorized?

    Hawaii initially received final authorization to implement its base 
hazardous waste management program including federal program revisions 
through May 25, 1998 (Cluster VIII partial) on November 13, 2001 (66 FR 
55115). Since initial authorization Hawaii has not applied for or 
received authorization for revisions to its hazardous waste program.

F. What changes is EPA proposing with today's action?

    Hawaii has applied to EPA for authorization of changes to its 
hazardous waste program that correspond to certain federal rules 
promulgated between May 25, 1998 and July 1, 2016 (also known RCRA 
Cluster VIII through XXIV) and for authorization of state-initiated 
changes that are equivalent to or more stringent than the federal 
    EPA proposes to determine, subject to public review and comment, 
that Hawaii's hazardous waste program revisions as described in the 
State's authorization revision application dated November 22, 2017 are 
equivalent to, consistent with, and no less stringent than the Federal 
program, and therefore satisfy all the requirements necessary to 
qualify for final authorization. Regulatory revisions that are less 
stringent than the Federal program requirements and those regulatory 
revisions that are broader in scope than the Federal program 
requirements are not authorized. Accordingly, EPA proposes to grant 
Hawaii final authorization for the program changes described below.
    Hawaii has revised the format of its hazardous waste regulations 
from verbatim adoption to incorporation by reference of the Federal 
hazardous waste management regulations into their counterpart Hawaii 
Administrative Rules (HAR). HAR chapter 11-280 has been repealed 
without replacement. The requirements for public availability of 
information (RCRA Sec.  3006(f)) previously found in 11-280 are met by 
HAR chapters 2-71 and 11-1, HRS chapter 92F and sections 342J-14 and 
342J-14.5, and provisions adopted from Federal rules (40 CFR 260.2) in 
HAR chapter 11-260.1.
    The repeal of the verbatim adoption of the Federal program in HAR 
Title 11 chapters 260, 261, 262, 263, 264, 265, 266, 268, 270, 271, 
273, 279, and 280 is replaced by incorporation by reference (``IBR'') 
into HAR Title 11 chapters 260.1, 261.1, 262.1, 263.1, 264.1, 265.1, 
266.1, 268.1, 270.1, 271.1, 273.1, and 279.1 and are effective July 17, 
2017. 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, 270, 273,     Hawaii Administrative Rules
 279, effective by July 1, 2016.          (HAR) 11-260.1-266.1, 11-
                                          268.1, 11-270.1, 11-273.1, 11-
                                          279.1, effective July 17,
40 CFR Part 124 subparts A and B.......  HAR 11-271.1, effective July
                                          17, 2017.

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

    Under RCRA Sec.  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 
    This section does not discuss the program differences previously 
published in Hawaii's base program authorization in 2001, at 66 FR 
55115 (November 1, 2001). Areas identified in the base 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 more stringent, or new requirements that are broader in scope and 
cannot be authorized.

1. More Stringent

    States may seek authorization for state requirements that are more 
stringent than federal requirements. The EPA has the authority to 
authorize and enforce those parts of a state's program the EPA finds to 
be more stringent than the

[[Page 29522]]

federal program. This section does not discuss each more stringent 
finding made by the EPA, but rather rules of particular interest that 
were not previously described in 2001, available at 66 FR 55115, 
November 1, 2001. Persons should consult the docket for this rule, 
including Hawaii's revised Program Description, dated May 1, 2018 for a 
complete list of rules determined to be more stringent than federal 
    i. More stringent regulation of specific wastes
    a. Solvent-Contaminated Wipes: Hawaii is adopting the conditional 
exclusions for solvent-contaminated wipes addressed by Revision 
Checklist 229, but is adding one additional condition to the 
incorporated version of 40 CFR 261.4(a)(26) and 261.4(b)(18): 
Containers in which solvent-contaminated wipes eligible for the 
exclusion are being accumulated must be labeled with the accumulation 
start date.
    b. Spent lead-acid batteries: Hawaii regulates persons who 
generate, transport, collect, or store spent-lead acid batteries sent 
for reclamation (other than through regeneration) as handlers/
transporters of universal waste under chapter 11-273.1. This is more 
stringent than the federal program, which exempts these groups from 
many regulations under 40 CFR 266.80.
    ii. Notification before cancellation of certain financial assurance 
instruments. Hawaii requires hazardous waste treatment, storage, and 
disposal facilities, and reclamation and intermediate facilities 
managing hazardous secondary materials, to notify both the State 
Director and the Regional Administrator before cancellation of certain 
financial assurance instruments. The federal regulations require only 
one authority to be notified, so the requirement to notify the Regional 
Administrator in addition to the State Director is more stringent than 
the federal regulation. This applies to surety bonds, letters of 
credit, corporate guarantees, liability endorsements, certificates of 
liability insurance, and standby letters of credit (Incorporated 
version of 40 CFR 261.151(b), (c), (g), (h), (i), (j), (k), 264.151(b), 
(c), (d), (h), (i), (j), (k), and (l)).
    iii. Used oil processor facility standards: The State does not 
allow for exceptions to the requirement that used oil processors have 
emergency equipment listed in 40 CFR 279.52(a)(2). The State also does 
not allow for the possibility that aisle space required in 279.52(a)(5) 
is not necessary.
    iv. Notification in case of emergency. Hawaii requires notification 
of emergencies to the State Hazard Evaluation and Emergency Response 
(HEER) office designated on-scene coordinator in addition to the 
National Response Center (NRC) for: Facilities handling secondary 
hazardous materials (HSM), generators of hazardous waste, transporters 
of hazardous waste and used oil, treatment, storage, and disposal 
facilities and used oil processors.
    v. Recordkeeping requirements. The State requires the following 
additional recordkeeping requirements:
    a. Generator container storage area inspection log: Generators must 
keep a log of the weekly container storage area inspections.
    b. Universal waste transporters: Universal waste transporters must 
maintain the same type of records that Large Quantity Handlers of 
Universal Waste and Destination Facilities must maintain. Records must 
be maintained for three years.
    c. Used oil generators: Used oil generators must keep records of 
shipments, similar to the records required for used oil transporters 
under the federal program. These records must be maintained for three 
    d. Used oil processors: Used oil processors must keep records of 
the equipment testing and maintenance required by 40 CFR 279.52(a)(3) 
(in the incorporated version of 279.57(a)(2)).
    vi. Permits: The State limits the duration of Remedial Action Plans 
to five years instead of ten (40 CFR 270.195).
    vii. No standard permit option: The State has not adopted federal 
regulations allowing standardized permits.
    viii. Used oil management.
    a. Used oil testing: The State requires that used oil transporters 
and processors make a hazardous waste determination for used oil sent 
for disposal. The State regulations allow used oil burners and 
marketers to either test used oil for halogens or obtain results of 
tests performed by the processor.
    b. Annual reporting for used oil processors: The State requires 
used oil processors to submit an annual report of used oil activities 
by July 31. The content of the report is similar to the biennial report 
required in the federal program and replaces the used oil biennial 
reporting requirement (40 CFR 279.57(b)).
    ix. Alternative groundwater monitoring plans. The State has added a 
requirement that any interim status facility opting for an alternative 
groundwater monitoring plan under the incorporated version of 40 CFR 
265.90(d) submit a copy of the plan to the department, in addition to 
maintaining the plan on-site at the facility.
    x. Notification of newly regulated hazardous waste activity. State 
regulations (HRS 342J-6.5) require generators, transporters, and owners 
or operators of treatment, storage, or disposal facilities newly 
regulated due to a change in the definition of hazardous waste (HAR 
chapter 11-261.1) to submit a notification within 45 days of the 
regulatory revision (rather than the federal requirement of 90 days) 
(40 CFR 270.1(b)).
    xi. Academic laboratory generator standards: The State is not 
adopting the alternative requirements for hazardous waste determination 
and accumulation of unwanted materials at academic laboratories, (73 FR 
72912, December 1, 2008 and 75 FR 79304, December 20, 2010).
    xii. Used oil storage requirements: The State has added language to 
the incorporated version of 40 CFR 279.22, 279.45, 279.54, 279.64, to 
clarify that containers and aboveground tanks storing used oil must be 
kept closed.

2. Areas Where the State Program Is Broader in Scope

    i. Coal combustion residuals: The State is not adopting the Federal 
final rule that added a list of coal combustion residuals to 40 CFR 
261.4(b)(4)(ii) to the ash and other waste types from coal combustion 
that were already included in an exemption from the definition of 
hazardous waste, if these residuals are co-disposed with the waste 
types originally listed (80 FR 21302-21501, October 19, 2015). Hawaii 
does not exclude these waste types from the definition of solid waste.
    ii. Cathode Ray Tubes and Carbon Dioxide Streams in Geological 
Sequestration Activities: Hawaii is not adopting the Federal final 
rules that introduced and/or revised conditional exclusions for (1) 
Cathode Ray Tubes (CRTs) from the definition of solid waste (40 CFR 
261.4(a)(22)) and (2) carbon dioxide (CO2) streams in 
geological sequestration activities from the definition of hazardous 
waste (at 40 CFR 261.4(h)). Hawaii program is broader in scope so long 
as all the conditions of the Federal exclusion are met.

3. Universal Waste: Electronic Item Added

    The State has added a category of universal waste to HAR chapter 
11-273.1 called ``electronic items'' and defined waste management and 
labeling/marking requirements for this type of universal waste. The 
State determined, based on extensive

[[Page 29523]]

research, that most waste electronic items are toxicity characteristic 
hazardous wastes due to the presence and concentration of one or more 
metals (e.g. lead, cadmium) and may also contain other dangerous 
constituents, such as a brominated (flame retardant) plastics. The 
State also determined that electronic items (as defined in HAR chapters 
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 CESQG or household 
wastes) being diverted from non-hazardous to hazardous waste management 

4. Procedural Rules

    i. Contested case hearings and declaratory orders: The State's 
previous regulations governing contested case hearings (HAR chapter 11-
271 subchapter B, based on 40 CFR part 22) and declaratory rulings (HAR 
chapter 11-271 subchapter C) for the hazardous waste program have been 
repealed. The State Department of Health has similar department-wide 
procedures for case hearings and declaratory orders that now apply (HAR 
chapter 11-1). The State is not adopting an equivalent to 40 CFR 124.19 
and instead adds procedures for requesting a contested case hearing in 
the incorporated version of 40 CFR 124.15 in HAR chapter 11-271.1.
    ii. Public availability of information: The State's previous 
regulations regarding public availability of information and treatment 
of confidential business information (HAR chapter 11-280) have been 
repealed. Requests for public information will be handled under HRS 
342J-14 and 342J-14.5 and applicable provisions of HRS chapter 92F and 
HAR chapter 2-71, which are referenced in the incorporated version of 
40 CFR 260.2. EPA determines that Hawaii's requirements for public 
availability of information and treatment of confidential business 
information are substantially similar to EPA's federal regulations.
    Other than the differences discussed above, Hawaii incorporates by 
reference the remaining federal rules listed in Section F; therefore, 
there are no significant differences between the remaining federal 
rules and the revised state rules being authorized today.

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.

I. 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. EPA does this by 
referencing the authorized state rules in 40 CFR part 272. EPA is not 
codifying the authorization of Hawaii's changes at this time. However, 
EPA reserves the amendment of 40 CFR part 272, subpart M for this 
authorization of Hawaii's program changes until a later date.

J. Administrative Requirements

    The Office of Management and Budget (OMB) has exempted this action 
(RCRA State authorization) 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 3006 and imposes no additional requirements beyond those imposed 
by state law. Therefore, this action is not subject to review by OMB. 
This action is not an Executive Order 13771 (82 FR 9339, February 3, 
2017) regulatory action because actions such as this proposed 
authorization of Hawaii's revised hazardous waste program under RCRA 
are exempted under Executive Order 12866. 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 (Pub. L. 104-4). 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 the 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 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.
    Under RCRA 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 note) do not apply. As required 
by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), 
in issuing this rule, 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 the rule 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 rule does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 
et seq.). Executive Order 12898 (59 FR 7629,

[[Page 29524]]

February 16, 1994) 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 rule authorizes pre-existing state rules 
which are at least equivalent to, and no less stringent than existing 
federal requirements, and impose no additional requirements beyond 
those imposed by state law, and there are no anticipated significant 
adverse human health or environmental effects, the rule 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). This action nevertheless will be effective 60 days after 
the final approval is published in the Federal Register.

List of Subjects in 40 CFR Part 271

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous materials transportation, 
Hazardous waste, Incorporation by reference, Indian--lands, Hazardous 
waste transportation, Intergovernmental relations, Penalties, Reporting 
and recordkeeping requirements, Water pollution control, Water supply.

    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).

    Dated: June 8, 2018.
Deborah Jordan,
Acting Regional Administrator, Region 9.
[FR Doc. 2018-13573 Filed 6-22-18; 8:45 am]