Rule2022-04723
Approval of State Underground Storage Tank Program Revisions; Hawaii
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
March 7, 2022
Effective
March 7, 2022
Issuing agencies
Environmental Protection Agency
Abstract
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 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.
Full Text
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<title>Federal Register, Volume 87 Issue 44 (Monday, March 7, 2022)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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, <a href="/cdn-cgi/l/email-protection#b3e7c69dffcaddd7c0d6caf3d6c3d29dd4dcc5"><span class="__cf_email__" data-cfemail="f0a485debc899e94839589b0958091de979f86">[email protected]</span></a>, (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]
BILLING CODE 6560-50-P
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