83 FR 29520 - Hawaii: Proposed Authorization of State Hazardous Waste Management Program Revisions

ENVIRONMENTAL PROTECTION AGENCY

Federal Register Volume 83, Issue 122 (June 25, 2018)

Page Range		29520-29524
FR Document		2018-13573
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.
Federal Register, Volume 83 Issue 122 (Monday, June 25, 2018)
[Federal Register Volume 83, Number 122 (Monday, June 25, 2018)]
[Proposed Rules]
[Pages 29520-29524]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-13573]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

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, 
2018.

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].

SUPPLEMENTARY INFORMATION: 

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 
application.
    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 
action?

    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 
program.
    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,
                                          2017.
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 
EPA.
    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 
rules.
    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 
years.
    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 
systems.

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]
 BILLING CODE 6560-50-P
29520 Federal Register / Vol. 83, No. 122 / Monday, June 25, 2018 / Proposed Rules

determination, the impact of concern is This action proposes no regulatory submit electronically any information
any significant adverse economic requirements. you consider to be Confidential
impact on small entities. An agency may Business Information (CBI) or other
J. National Technology Transfer and
certify that a rule will not have a information whose disclosure is
Advancement Act
significant economic impact on a restricted by statute. Multimedia
substantial number of small entities if This rulemaking does not involve submissions (audio, video, etc.) must be
the rule relieves regulatory burden, has technical standards. accompanied by a written comment.
no net burden, or otherwise has a K. Executive Order 12898: Federal The written comment is considered the
positive economic effect on the small Actions To Address Environmental official comment and should include
entities subject to the rule. Justice in Minority Populations and discussion of all points you wish to
This action proposes no regulatory Low-Income Populations make. The EPA will generally not
requirements. We have therefore consider comments or comment
concluded that this action will have no EPA believes that this action is not contents located outside of the primary
net regulatory burden for all directly subject to Executive Order 12898 (59 FR submission (i.e. on the web, cloud, or
regulated small entities. 7629, February 16, 1994) because it does other file sharing system). For
not establish an environmental health or additional submission methods, the full
E. Unfunded Mandates Reform Act safety standard and imposes no EPA public comment policy,
(UMRA) regulatory requirements. information about CBI or multimedia
This action does not contain any Dated: June 15, 2018. submissions, and general guidance on
unfunded mandate as described in E. Scott Pruitt, making effective comments, please visit
UMRA, 2 U.S.C. 1531–1538, and does Administrator. http://www2.epa.gov/dockets/
not significantly or uniquely affect small commenting-epa-dockets.
[FR Doc. 2018–13470 Filed 6–22–18; 8:45 am]
governments. The action imposes no You may also view Hawaii’s
BILLING CODE 6560–50–P
enforceable duty on any state, local, or application from 8 a.m. to 4 p.m.
tribal governments or the private sector. Monday to Friday, excluding State
F. Executive Order 13132: Federalism ENVIRONMENTAL PROTECTION holidays at Hawaii State Department of
AGENCY Health OPPPD, 1250 Punchbowl Street,
This action does not have federalism Room 120, Honolulu, Hawaii 96813,
implications. It will not have substantial 40 CFR Part 271 phone number: 808–586–4188.
direct effects on the states, on the
[EPA–R09–RCRA–2018–0267; FRL–9979– FOR FURTHER INFORMATION CONTACT:
relationship between the national
government and the states, or on the 60—Region 9] Laurie Amaro, U.S. Environmental
distribution of power and Protection Agency, Region 9, Land
responsibilities among the various Hawaii: Proposed Authorization of Division, 75 Hawthorne Street (LND–1–
levels of government. State Hazardous Waste Management 1), San Francisco, CA 94105, phone
Program Revisions number: 415–972–3364, email:
G. Executive Order 13175: Consultation amaro.laurie@epa.gov.
and Coordination With Indian Tribal AGENCY: Environmental Protection
SUPPLEMENTARY INFORMATION:
Governments Agency (EPA).
ACTION: Proposed rule. A. Why are revisions to State programs
This action does not have tribal necessary?
implications as specified in Executive SUMMARY: Hawaii has applied to the
Order 13175, because this action Environmental Protection Agency (EPA) States which have received final
proposes no regulatory requirements. for final authorization of certain changes authorization from EPA under RCRA
Thus, Executive Order 13175 does not to its hazardous waste program under section 3006(b), 42 U.S.C. 6926(b), must
apply to this action. the Resource Conservation and maintain a hazardous waste program
Recovery Act, as amended (RCRA). that is equivalent to, consistent with,
H. Executive Order 13045: Protection of and no less stringent than the federal
Children From Environmental Health These changes correspond to certain
federal rules promulgated between May program. As the federal program
and Safety Risks changes, states must change their
26, 1998 and June 30, 2016 (also known
The EPA interprets Executive Order as RCRA Checklist 167 and Clusters IX programs and ask EPA to authorize the
13045 as applying to those regulatory through XXIV) plus several changes changes. Changes to state programs may
actions that concern environmental initiated by the State. EPA has reviewed be necessary when federal or state
health or safety risks that the EPA has Hawaii’s application with regards to statutory or regulatory authority is
reason to believe may federal requirements and is proposing to modified or when certain other changes
disproportionately affect children, per authorize the changes. The EPA seeks occur. Most commonly, states must
the definition of ‘‘covered regulatory public comment prior to taking final change their programs because of
action’’ in Section 2–202 of the action. changes to EPA’s regulations in 40 Code
Executive Order. This action is not of Federal Regulations (CFR) parts 124,
subject to Executive Order 13045 DATES: Comments on this proposed rule 260 through 268, 270, 273, and 279.
because it does not concern an must be received by July 25, 2018.
ADDRESSES: Submit your comments,
B. What decisions has EPA made in this
environmental health risk or safety risk.
amozie on DSK3GDR082PROD with PROPOSALS1

identified by Docket ID Number EPA– rule?
I. Executive Order 13211: Actions That R09–RCRA–2018–0267 at http:// On December 13, 2017, Hawaii
Significantly Affect Energy Supply, www.regulations.gov. Follow the online submitted a final complete program
Distribution, or Use instructions for submitting comments. revision application seeking
This action is not a ‘‘significant Once submitted, comments cannot be authorization of changes to its
energy action’’ because it is not likely to edited or removed from Regulations.gov. hazardous waste program corresponding
have a significant adverse effect on the The EPA may publish any comment to certain federal rules promulgated
supply, distribution, or use of energy. received to its public docket. Do not between May 26, 1998 and June 30,

VerDate Sep<11>2014 16:25 Jun 22, 2018 Jkt 244001 PO 00000 Frm 00056 Fmt 4702 Sfmt 4702 E:\FR\FM\25JNP1.SGM 25JNP1
Federal Register / Vol. 83, No. 122 / Monday, June 25, 2018 / Proposed Rules 29521

2016 (also known as RCRA Checklist • Take enforcement actions regardless EPA proposes to determine, subject to
167 and Clusters IX through XXIV) plus of whether the state has taken its own public review and comment, that
several changes initiated by the State. actions. Hawaii’s hazardous waste program
EPA concludes that Hawaii’s This action does not impose revisions as described in the State’s
application to revise its authorized additional requirements on the authorization revision application dated
program meets all statutory and regulated community because the November 22, 2017 are equivalent to,
regulatory requirements established by regulations for which Hawaii is being consistent with, and no less stringent
RCRA, as set forth in RCRA section authorized by today’s action are already than the Federal program, and therefore
3006(b), 42 U.S.C. 6926(b), and 40 CFR effective, and are not changed by today’s satisfy all the requirements necessary to
part 271. Therefore, EPA proposes to action. qualify for final authorization.
grant Hawaii final authorization to D. What happens if EPA receives Regulatory revisions that are less
operate as part of its hazardous waste comments that oppose this proposed stringent than the Federal program
program the changes listed below in action? requirements and those regulatory
Section F of this document, as further revisions that are broader in scope than
EPA will consider all comments the Federal program requirements are
described in the authorization received during the comment period
application. not authorized. Accordingly, EPA
and address all such comments in a proposes to grant Hawaii final
Hawaii has responsibility for final rule. You may not have another authorization for the program changes
permitting treatment, storage, and opportunity to comment. If you want to described below.
disposal facilities within its borders and comment on this authorization, you
Hawaii has revised the format of its
for carrying out the aspects of the RCRA must do so during the comment period
hazardous waste regulations from
program described in its revised for this proposed rule.
verbatim adoption to incorporation by
program application, subject to the E. For what has Hawaii previously been reference of the Federal hazardous
limitations of the Hazardous and Solid authorized? waste management regulations into their
Waste Amendments of 1984 (HSWA). counterpart Hawaii Administrative
Hawaii initially received final
C. What is the effect of today’s authorization to implement its base Rules (HAR). HAR chapter 11–280 has
authorization decision? hazardous waste management program been repealed without replacement. The
including federal program revisions requirements for public availability of
The effect of this decision is that the through May 25, 1998 (Cluster VIII information (RCRA § 3006(f)) previously
changes described in Hawaii’s partial) on November 13, 2001 (66 FR found in 11–280 are met by HAR
authorization application will become 55115). Since initial authorization chapters 2–71 and 11–1, HRS chapter
part of the authorized state hazardous Hawaii has not applied for or received 92F and sections 342J–14 and 342J–
waste program, and therefore will be authorization for revisions to its 14.5, and provisions adopted from
federally enforceable. Hawaii will hazardous waste program. Federal rules (40 CFR 260.2) in HAR
continue to have primary enforcement chapter 11–260.1.
F. What changes is EPA proposing with The repeal of the verbatim adoption of
authority and responsibility for its state
today’s action? the Federal program in HAR Title 11
hazardous waste program. EPA retains
its authorities under RCRA sections Hawaii has applied to EPA for chapters 260, 261, 262, 263, 264, 265,
3007, 3008, 3013, and 7003, including authorization of changes to its 266, 268, 270, 271, 273, 279, and 280 is
its authority to: hazardous waste program that replaced by incorporation by reference
correspond to certain federal rules (‘‘IBR’’) into HAR Title 11 chapters
• Conduct inspections, and require promulgated between May 25, 1998 and 260.1, 261.1, 262.1, 263.1, 264.1, 265.1,
monitoring, tests, analyses or reports; July 1, 2016 (also known RCRA Cluster 266.1, 268.1, 270.1, 271.1, 273.1, and
• Enforce RCRA requirements, VIII through XXIV) and for 279.1 and are effective July 17, 2017.
including authorized state program authorization of state-initiated changes The applicable Federal rules and
requirements, and suspend or revoke that are equivalent to or more stringent analogous State rules are identified in
permits; and than the federal program. the table below.

Federal hazardous waste requirements Analogous State authority

40 CFR parts 260–266, 268, 270, 273, 279, effective by July 1, 2016 .. Hawaii Administrative Rules (HAR) 11–260.1–266.1, 11–268.1, 11–
270.1, 11–273.1, 11–279.1, effective July 17, 2017.
40 CFR Part 124 subparts A and B ......................................................... HAR 11–271.1, effective July 17, 2017.

G. Where are the revised State rules authorized, in which case they are regulations. This section discusses new
different from the Federal rules? enforceable by the EPA. State requirements that are more
Under RCRA § 3009, the EPA may not This section does not discuss the stringent, or new requirements that are
authorize state rules that are less program differences previously broader in scope and cannot be
stringent than the Federal program. Any published in Hawaii’s base program authorized.
amozie on DSK3GDR082PROD with PROPOSALS1

state rules that are less stringent do not authorization in 2001, at 66 FR 55115 1. More Stringent
supplant the federal regulations. State (November 1, 2001). Areas identified in
rules that are broader in scope than the the base program authorization as more States may seek authorization for state
Federal program requirements are stringent or broader in scope than the requirements that are more stringent
allowed but do not become part of the federal program have been carried than federal requirements. The EPA has
enforceable federal program. State rules forward into the new regulations as the authority to authorize and enforce
that are equivalent to or more stringent amendments or additions to the those parts of a state’s program the EPA
than the federal program may be incorporation by reference of the federal finds to be more stringent than the

VerDate Sep<11>2014 16:25 Jun 22, 2018 Jkt 244001 PO 00000 Frm 00057 Fmt 4702 Sfmt 4702 E:\FR\FM\25JNP1.SGM 25JNP1
29522 Federal Register / Vol. 83, No. 122 / Monday, June 25, 2018 / Proposed Rules

federal program. This section does not Evaluation and Emergency Response maintaining the plan on-site at the
discuss each more stringent finding (HEER) office designated on-scene facility.
made by the EPA, but rather rules of coordinator in addition to the National x. Notification of newly regulated
particular interest that were not Response Center (NRC) for: Facilities hazardous waste activity. State
previously described in 2001, available handling secondary hazardous materials regulations (HRS 342J–6.5) require
at 66 FR 55115, November 1, 2001. (HSM), generators of hazardous waste, generators, transporters, and owners or
Persons should consult the docket for transporters of hazardous waste and operators of treatment, storage, or
this rule, including Hawaii’s revised used oil, treatment, storage, and disposal facilities newly regulated due
Program Description, dated May 1, 2018 disposal facilities and used oil to a change in the definition of
for a complete list of rules determined processors. hazardous waste (HAR chapter 11–
to be more stringent than federal rules. v. Recordkeeping requirements. The 261.1) to submit a notification within 45
i. More stringent regulation of specific State requires the following additional days of the regulatory revision (rather
wastes recordkeeping requirements: than the federal requirement of 90 days)
a. Solvent-Contaminated Wipes: a. Generator container storage area (40 CFR 270.1(b)).
Hawaii is adopting the conditional inspection log: Generators must keep a xi. Academic laboratory generator
exclusions for solvent-contaminated log of the weekly container storage area standards: The State is not adopting the
wipes addressed by Revision Checklist inspections. alternative requirements for hazardous
229, but is adding one additional b. Universal waste transporters: waste determination and accumulation
condition to the incorporated version of Universal waste transporters must of unwanted materials at academic
40 CFR 261.4(a)(26) and 261.4(b)(18): maintain the same type of records that laboratories, (73 FR 72912, December 1,
Containers in which solvent- Large Quantity Handlers of Universal 2008 and 75 FR 79304, December 20,
contaminated wipes eligible for the Waste and Destination Facilities must 2010).
exclusion are being accumulated must maintain. Records must be maintained xii. Used oil storage requirements:
be labeled with the accumulation start for three years. The State has added language to the
date. c. Used oil generators: Used oil incorporated version of 40 CFR 279.22,
b. Spent lead-acid batteries: Hawaii generators must keep records of 279.45, 279.54, 279.64, to clarify that
regulates persons who generate, shipments, similar to the records containers and aboveground tanks
transport, collect, or store spent-lead required for used oil transporters under storing used oil must be kept closed.
acid batteries sent for reclamation (other the federal program. These records must
than through regeneration) as handlers/ 2. Areas Where the State Program Is
be maintained for three years.
transporters of universal waste under Broader in Scope
d. Used oil processors: Used oil
chapter 11–273.1. This is more stringent processors must keep records of the i. Coal combustion residuals: The
than the federal program, which equipment testing and maintenance State is not adopting the Federal final
exempts these groups from many required by 40 CFR 279.52(a)(3) (in the rule that added a list of coal combustion
regulations under 40 CFR 266.80. incorporated version of 279.57(a)(2)). residuals to 40 CFR 261.4(b)(4)(ii) to the
ii. Notification before cancellation of vi. Permits: The State limits the ash and other waste types from coal
certain financial assurance instruments. duration of Remedial Action Plans to combustion that were already included
Hawaii requires hazardous waste five years instead of ten (40 CFR in an exemption from the definition of
treatment, storage, and disposal 270.195). hazardous waste, if these residuals are
facilities, and reclamation and vii. No standard permit option: The co-disposed with the waste types
intermediate facilities managing State has not adopted federal originally listed (80 FR 21302–21501,
hazardous secondary materials, to notify regulations allowing standardized October 19, 2015). Hawaii does not
both the State Director and the Regional permits. exclude these waste types from the
Administrator before cancellation of viii. Used oil management. definition of solid waste.
certain financial assurance instruments. a. Used oil testing: The State requires ii. Cathode Ray Tubes and Carbon
The federal regulations require only one that used oil transporters and processors Dioxide Streams in Geological
authority to be notified, so the make a hazardous waste determination Sequestration Activities: Hawaii is not
requirement to notify the Regional for used oil sent for disposal. The State adopting the Federal final rules that
Administrator in addition to the State regulations allow used oil burners and introduced and/or revised conditional
Director is more stringent than the marketers to either test used oil for exclusions for (1) Cathode Ray Tubes
federal regulation. This applies to surety halogens or obtain results of tests (CRTs) from the definition of solid
bonds, letters of credit, corporate performed by the processor. waste (40 CFR 261.4(a)(22)) and (2)
guarantees, liability endorsements, b. Annual reporting for used oil carbon dioxide (CO2) streams in
certificates of liability insurance, and processors: The State requires used oil geological sequestration activities from
standby letters of credit (Incorporated processors to submit an annual report of the definition of hazardous waste (at 40
version of 40 CFR 261.151(b), (c), (g), used oil activities by July 31. The CFR 261.4(h)). Hawaii program is
(h), (i), (j), (k), 264.151(b), (c), (d), (h), content of the report is similar to the broader in scope so long as all the
(i), (j), (k), and (l)). biennial report required in the federal conditions of the Federal exclusion are
iii. Used oil processor facility program and replaces the used oil met.
standards: The State does not allow for biennial reporting requirement (40 CFR
exceptions to the requirement that used 279.57(b)). 3. Universal Waste: Electronic Item
amozie on DSK3GDR082PROD with PROPOSALS1

oil processors have emergency ix. Alternative groundwater Added
equipment listed in 40 CFR 279.52(a)(2). monitoring plans. The State has added The State has added a category of
The State also does not allow for the a requirement that any interim status universal waste to HAR chapter 11–
possibility that aisle space required in facility opting for an alternative 273.1 called ‘‘electronic items’’ and
279.52(a)(5) is not necessary. groundwater monitoring plan under the defined waste management and
iv. Notification in case of emergency. incorporated version of 40 CFR labeling/marking requirements for this
Hawaii requires notification of 265.90(d) submit a copy of the plan to type of universal waste. The State
emergencies to the State Hazard the department, in addition to determined, based on extensive

VerDate Sep<11>2014 16:25 Jun 22, 2018 Jkt 244001 PO 00000 Frm 00058 Fmt 4702 Sfmt 4702 E:\FR\FM\25JNP1.SGM 25JNP1
Federal Register / Vol. 83, No. 122 / Monday, June 25, 2018 / Proposed Rules 29523

research, that most waste electronic remaining federal rules and the revised Unfunded Mandates Reform Act of 1995
items are toxicity characteristic state rules being authorized today. (Pub. L. 104–4). For the same reason,
hazardous wastes due to the presence this action also does not significantly or
H. Who handles permits after the
and concentration of one or more metals uniquely affect the communities of
authorization takes effect?
(e.g. lead, cadmium) and may also Tribal governments, as specified by
contain other dangerous constituents, Hawaii will continue to issue permits Executive Order 13175 (65 FR 67249,
such as a brominated (flame retardant) for all the provisions for which it is November 9, 2000). This action will not
plastics. The State also determined that authorized and will administer the have substantial direct effects on the
electronic items (as defined in HAR permits it issues. Section 3006(g)(1) of States, on the relationship between the
chapters 11–260.1 and 11–273.1) as a RCRA, 42 U.S.C. 6926(g)(1), gives EPA national government and the States, or
category meet the criteria of 40 CFR the authority to issue or deny permits or on the distribution of power and
273.81. EPA allows authorized States to parts of permits for requirements for responsibilities among the various
create regulations for State-only which the State is not authorized. levels of government, as specified in
universal wastes provided that these Therefore, whenever EPA adopts Executive Order 13132 (64 FR 43255,
criteria are met for the waste or waste standards under HSWA for activities or August 10, 1999), because it merely
category, including the key wastes not currently covered by the authorizes state requirements as part of
requirements that universal waste authorized program, EPA may process the state RCRA hazardous waste
management is sufficiently protective of RCRA permits in Hawaii for the new or program without altering the
human health and the environment and revised HSWA standards until Hawaii relationship or the distribution of power
that regulation as universal waste has received final authorization for such and responsibilities established by
increases the likelihood of similar new or revised HSWA standards. RCRA. This action also is not subject to
unregulated wastes (such as CESQG or I. What is codification and is EPA Executive Order 13045 (62 FR 19885,
household wastes) being diverted from codifying Hawaii’s hazardous waste April 23, 1997), because it is not
non-hazardous to hazardous waste program as authorized in this rule? economically significant and it does not
management systems. Codification is the process of placing make decisions based on environmental
the state’s statutes and regulations that health or safety risks. This rule is not
4. Procedural Rules
comprise the state’s authorized subject to Executive Order 13211,
i. Contested case hearings and hazardous waste program into the Code ‘‘Actions Concerning Regulations That
declaratory orders: The State’s previous of Federal Regulations. EPA does this by Significantly Affect Energy Supply,
regulations governing contested case referencing the authorized state rules in Distribution, or Use’’ (66 FR 28355, May
hearings (HAR chapter 11–271 40 CFR part 272. EPA is not codifying 22, 2001), because it is not a significant
subchapter B, based on 40 CFR part 22) the authorization of Hawaii’s changes at regulatory action under Executive Order
and declaratory rulings (HAR chapter this time. However, EPA reserves the 12866.
11–271 subchapter C) for the hazardous amendment of 40 CFR part 272, subpart Under RCRA 3006(b), the EPA grants
waste program have been repealed. The M for this authorization of Hawaii’s a State’s application for authorization,
State Department of Health has similar program changes until a later date. as long as the State meets the criteria
department-wide procedures for case required by RCRA. It would thus be
hearings and declaratory orders that J. Administrative Requirements inconsistent with applicable law for the
now apply (HAR chapter 11–1). The The Office of Management and Budget EPA, when it reviews a state
State is not adopting an equivalent to 40 (OMB) has exempted this action (RCRA authorization application, to require the
CFR 124.19 and instead adds State authorization) from the use of any particular voluntary
procedures for requesting a contested requirements of Executive Order 12866 consensus standard in place of another
case hearing in the incorporated version (58 FR 51735, October 4, 1993) and standard that otherwise satisfies the
of 40 CFR 124.15 in HAR chapter 11– 13563 (76 FR 3821, January 21, 2011). requirements of RCRA. Thus, the
271.1. This action authorizes state requirements of section 12(d) of the
ii. Public availability of information: requirements for the purpose of RCRA National Technology Transfer and
The State’s previous regulations 3006 and imposes no additional Advancement Act of 1995 (15 U.S.C.
regarding public availability of requirements beyond those imposed by 272 note) do not apply. As required by
information and treatment of state law. Therefore, this action is not section 3 of Executive Order 12988 (61
confidential business information (HAR subject to review by OMB. This action FR 4729, February 7, 1996), in issuing
chapter 11–280) have been repealed. is not an Executive Order 13771 (82 FR this rule, the EPA has taken the
Requests for public information will be 9339, February 3, 2017) regulatory necessary steps to eliminate drafting
handled under HRS 342J–14 and 342J– action because actions such as this errors and ambiguity, minimize
14.5 and applicable provisions of HRS proposed authorization of Hawaii’s potential litigation, and provide a clear
chapter 92F and HAR chapter 2–71, revised hazardous waste program under legal standard for affected conduct. The
which are referenced in the RCRA are exempted under Executive EPA has complied with Executive Order
incorporated version of 40 CFR 260.2. Order 12866. This action will not have 12630 (53 FR 8859, March 15, 1988) by
EPA determines that Hawaii’s a significant economic impact on a examining the takings implications of
requirements for public availability of substantial number of small entities the rule in accordance with the
information and treatment of under the Regulatory Flexibility Act (5 ‘‘Attorney General’s Supplemental
amozie on DSK3GDR082PROD with PROPOSALS1

confidential business information are U.S.C. 601 et seq.). Because this action Guidelines for the Evaluation of Risk
substantially similar to EPA’s federal authorizes pre-existing requirements and Avoidance of Unanticipated
regulations. under state law and does not impose Takings’’ issued under the Executive
Other than the differences discussed any additional enforceable duty beyond Order. This rule does not impose an
above, Hawaii incorporates by reference that required by state law, it does not information collection burden under the
the remaining federal rules listed in contain any unfunded mandate or provisions of the Paperwork Reduction
Section F; therefore, there are no significantly or uniquely affect small Act of 1995 (44 U.S.C. 3501 et seq.).
significant differences between the governments, as described in the Executive Order 12898 (59 FR 7629,

VerDate Sep<11>2014 16:25 Jun 22, 2018 Jkt 244001 PO 00000 Frm 00059 Fmt 4702 Sfmt 4702 E:\FR\FM\25JNP1.SGM 25JNP1
Document Created: 2018-06-23 02:28:43
Document Modified: 2018-06-23 02:28:43
Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Proposed Rules
Action		Proposed rule.
Dates		Comments on this proposed rule must be received by July 25, 2018.
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]
FR Citation		83 FR 29520
CFR Associated		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 and Water Supply