[Federal Register Volume 87, Number 44 (Monday, March 7, 2022)]
[Rules and Regulations]
[Pages 12593-12596]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-04723]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 281

[EPA-R09-UST-2022-0197; FRL-9571-01-R9]


Approval of State Underground Storage Tank Program Revisions; 
Hawaii

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notification of final determination on the State of Hawaii's 
application for final approval.

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SUMMARY: Hawaii has applied to the Environmental Protection Agency 
(EPA) for updated approval of changes made to its Underground Storage 
Tank Program under the Resource Conservation and Recovery Act, as 
amended, since the previous approval of Hawaii's Underground Storage 
Tank Program in September 2002. The EPA has reviewed Hawaii's 
application and

[[Page 12594]]

has determined that these changes satisfy all requirements needed to 
qualify for the requested updated approval. The EPA is correcting one 
citation identified as a result of public comment received on the 
proposal to approve Hawaii's Underground Storage Tank Program that was 
published in August 2020. All other aspects of the August 2020 proposed 
State Program Approval remain the same. Therefore, the EPA is granting 
final approval to the State of Hawaii to operate its Underground 
Storage Tank Program for petroleum and hazardous substances.

DATES: This final approval is effective at 1:00 p.m. HST March 7, 2022.

FOR FURTHER INFORMATION CONTACT: Lyndsey Tu, Underground Storage Tanks 
Program Office, U.S. EPA, Region 9, [email protected], (415) 972-3269.

SUPPLEMENTARY INFORMATION:

I. Approval of Revisions to Hawaii's Underground Storage Tank Program

A. Background

    Section 9004 of the Resource Conservation and Recovery Act, as 
amended, (RCRA), 42 U.S.C. 6991c, authorizes the EPA to approve a State 
Underground Storage Tank (UST) Program to operate in the State in lieu 
of the Federal 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 EPA 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, 
EPA 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, EPA will rely on 
Federal sanctions, Federal inspection authorities, and Federal 
procedures rather than the approved state analogues to these 
provisions.

B. What decisions has EPA made in this approval?

    On October 8, 2018, in accordance with 40 CFR 281.51(a), Hawaii 
submitted a complete program revision application seeking approval for 
its UST program revisions corresponding to the EPA final rule published 
on July 15, 2015 (80 FR 41566), which finalized revisions to the 1988 
UST regulations and to the 1988 state program approval regulations. As 
required by 40 CFR 281.20, the State submitted the following: A 
transmittal letter from the Governor requesting approval, a description 
of the program and operating procedures, a demonstration of the State's 
procedures to ensure adequate enforcement, a Memorandum of Agreement 
outlining the roles and responsibilities of EPA and the implementing 
agency, a statement of certification from the Attorney General, and 
copies of all relevant State statutes and regulations. EPA reviewed the 
Hawaii application for updated UST Program approval and, on August 14, 
2020 (85 FR 49611), issued a tentative determination that the revisions 
to Hawaii's UST program are equivalent to, consistent with, and no less 
stringent than the corresponding Federal requirements in subpart C of 
40 CFR part 281, and that the Hawaii program provides for adequate 
enforcement of compliance (40 CFR 281.11(b)). EPA received public 
comment on its tentative determination and, as a result, has made one 
correction to the scope of the approval as proposed, which is described 
in Section I.C. of this document, below. Therefore, EPA grants Hawaii 
approval to operate its UST program with the changes described in the 
program revision application as outlined in EPA's August 14, 2020 
tentative determination and amended by this notification. Specifically, 
as noted below, EPA finds that Hawaii Administrative Rules (HAR) 
Section 11-280.1-67 is equivalent to and part of the approved Hawaii 
UST program, but HAR Section 11-280.1-65.1 is broader in scope than the 
Federal UST program and is not a part of the approved Hawaii UST 
program.

C. Significant Public Comments and Responses

    EPA received one significant public comment on its proposed 
approval of the updated Hawaii UST program within the public comment 
period.
    Comment: In the ``Authorization of Underground Storage Tank Program 
Revisions: Hawaii'' under H. ``Where are the State's revised rules 
different from the Federal rules,'' the text reads: ``[Hawaii 
Administrative Rules (HAR)] Section 11-280.1-67 requires public 
notification in the event of a confirmed release. This requirement is 
broader in scope than the Federal UST program, which only requires 
public notification when an implementing agency requires a corrective 
action plan.'' This is not correct. HAR Section 11-280.1-67 is titled 
``Public participation for corrective action plans'' and does NOT 
require public notification in the event of a confirmed release, but 
instead only when a corrective action plan is required. This is in line 
with EPA's rules.
    Response: EPA agrees with this comment. HAR Section 11-280.1-67 
does not require public notification in the event of a confirmed 
release but does require public participation when a corrective action 
plan is required. This aspect of Hawaii's program is not broader in 
scope than the Federal program and is in alignment with EPA's rules. 
However, in its August 2020 proposal, EPA cited HAR Section 11-280.1-67 
incorrectly and should have cited HAR Section 11-280.1-65.1 instead. 
HAR Section 11-280.1-65.1 requires notification of members of the 
public directly affected by a confirmed release. See also Hawaii 
revised statute 342L-35(4). There is no counterpart in the Federal 
regulations for HAR Section 11-280.1-65.1. As a result, this final 
approval includes HAR Section 11-280.1-67, which has a counterpart at 
40 CFR 280.67. However, this final approval does not include HAR 
Section 11-280.1-65.1, which EPA finds is broader in scope than the 
Federal program.
    Additionally, EPA received a set of comments outside of the public 
comment period. This set of comments was submitted by email to the 
Underground Storage Tanks Program at EPA Region 9 shortly after the 
comment period closed. The full text of this set of comments is 
included as a part of this docket to ensure the public has access to 
this set of comments as part of the record for this decision. The 
comments, which are focused on the State's and EPA's underlying 
requirements for field-constructed tanks, do not implicate EPA's 
decision whether to approve Hawaii's revised UST Program. UST State 
Program Approval is intended for states to obtain the authority to 
operate their programs in lieu of the Federal program and is not an 
opportunity to re-open comment on either the underlying Federal or 
state rules. The public comment period for the 2015 Federal UST 
regulations closed on April 16, 2012, and the public comment period for 
the Hawaii UST regulations closed on June 5, 2018.

[[Page 12595]]

II. Codification

A. What is codification, and will EPA codify Hawaii's UST program?

    Codification is the process of placing citations and references to 
the state's statutes and regulations that comprise the state's approved 
UST program into the Code of Federal Regulations. EPA does this by 
adding those citations and references to the approved state rules in 40 
CFR part 282. EPA is not codifying the approval of Hawaii's changes at 
this time. However, EPA intends to amend 40 CFR part 282, subpart B, to 
reflect the updated approval of Hawaii's program changes at a later 
date.

III. Statutory and Executive Order (E.O.) Reviews

    This action only applies to Hawaii's UST Program requirements 
pursuant to RCRA Section 9004 and imposes no requirements other than 
those imposed by state law. It complies with applicable EOs and 
statutory provisions as follows:

A. Executive Order 12866 Regulatory Planning and Review, Executive 
Order 13563: Improving Regulation and Regulatory Review

    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 approves 
state requirements for the purpose of RCRA Section 9004 and imposes no 
additional requirements beyond those imposed by state law. Therefore, 
this action is not subject to review by OMB.

B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs

    This action is not an Executive Order 13771 (82 FR 9339, February 
3, 2017) regulatory action because actions such as this approval of 
Hawaii's revised underground storage tank program under RCRA are 
exempted under Executive Order 12866. Accordingly, 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.).

C. Unfunded Mandates Reform Act and Executive Order 13175: Consultation 
and Coordination With Indian Tribal Governments

    Because this action approves 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, and because there are no federally recognized Tribes within the 
State, 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).

D. Executive Order 13132: Federalism

    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 approves state requirements 
as part of the State RCRA Underground Storage Tank Program without 
altering the relationship or the distribution of power and 
responsibilities established by RCRA.

E. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    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.

F. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 (66 FR 28355, 
May 22, 2001) because it is not a ``significant regulatory action'' as 
defined under Executive Order 12866.

G. National Technology Transfer and Advancement Act

    Under RCRA Section 9004(b), EPA grants a state's application for 
approval as long as the state meets the criteria required by RCRA. It 
would thus be inconsistent with applicable law for EPA, when it reviews 
a state approval 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.

H. Executive Order 12988: Civil Justice Reform

    As required by Section 3 of Executive Order 12988 (61 FR 4729, 
February 7, 1996), in taking this action, EPA has taken the necessary 
steps to eliminate drafting errors and ambiguity, minimize potential 
litigation, and provide a clear legal standard for affected conduct.

I. Executive Order 12630: Governmental Actions and Interference With 
Constitutionally Protected Property Rights

    EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 
1988) by examining the takings implications of the 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.

J. Paperwork Reduction Act

    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).

K. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low Income Populations

    Executive Order 12898 (59 FR 7629, 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 action approves pre-
existing state rules which are at least equivalent to, consistent with, 
and no less stringent than existing Federal requirements, and imposes 
no additional requirements beyond those imposed by state law, and there 
is no anticipated significant adverse human health or environmental 
effects, the action is not subject to Executive Order 12898.

L. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801-808, 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. This action is not considered a ``rule'' within the meaning of 
5 U.S.C. 804, since it does not substantially affect the rights or

[[Page 12596]]

obligations of non-agency parties. However, this action will be 
effective at 1:00 p.m. HST March 7, 2022, because it is a final 
approval.

    Authority: This action is issued under the authority of Sections 
2002(a), 7004(b), and 9004, 9005 and 9006 of RCRA, also known as the 
Solid Waste Disposal Act, as amended, 42 U.S.C. 6912(a), 6974(b), 
and 6991c, 6991d, and 6991e.

List of Subjects in 40 CFR Part 281

    Environmental protection, Administrative practice and procedure, 
Hazardous substances, Petroleum, Reporting and recordkeeping 
requirements, State program approval, Underground storage tanks.

    Dated: February 26, 2022.
Martha Guzman Aceves,
Regional Administrator, Region 9.
[FR Doc. 2022-04723 Filed 3-4-22; 8:45 am]
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