Underground Storage Tanks

[Federal Register: September 25, 2002 (Volume 67, Number 186)]
[Rules and Regulations]               
[Page 60161-60166]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25se02-11]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 281

[FRL-7381-6]

 
Hawaii; Final Approval of State Underground Storage Tank Program

AGENCY: Environmental Protection Agency.

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

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SUMMARY: The State of Hawaii has applied for approval of its 
Underground Storage Tank Program for petroleum and hazardous substances 
under Subtitle I of the Resource Conservation and Recovery Act (RCRA). 
The Environmental Protection Agency (EPA) has reviewed Hawaii's 
application and has reached a final determination that Hawaii's 
Underground Storage Tank Program for petroleum and hazardous substances 
satisfies all of the requirements necessary to qualify for approval. 
Thus, the EPA is granting final approval to the State of Hawaii to 
operate its Underground Storage Tank Program for petroleum and 
hazardous substances.

EFFECTIVE DATE: Final approval for the State of Hawaii's Underground 
Storage Tanks Program shall be effective on September 30, 2002.

FOR FURTHER INFORMATION CONTACT: Mr. Norwood Scott, Underground Storage 
Tanks Program Office, U.S. EPA, Region 9, 75 Hawthorne Street (WST-8), 
San Francisco, California 94105, Telephone: (415) 972-3373.

SUPPLEMENTARY INFORMATION:

A. Background

    Section 9004 of the Resource Conservation and Recovery Act (RCRA) 
authorizes the Environmental Protection Agency (EPA) to approve state 
Underground Storage Tank Programs to operate in the State in lieu of 
the Federal Underground Storage Tank (UST) Program. To qualify for 
final authorization, a state's Program must: (1) Be ``no less 
stringent'' than the Federal Program for the seven elements set forth 
at RCRA Section 9004(a)(1) through (7); and (2) provide for adequate 
enforcement of compliance with the 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 the EPA under RCRA Section 9004. Thus, the Agency 
retains its authority under RCRA Sections 9005 and 9006, 42 U.S.C. 
6991d and 6991e, and other applicable statutory and regulatory 
provisions to undertake inspections and enforcement actions in approved 
states. With respect to such an enforcement action, the Agency will 
rely on Federal sanctions, Federal inspection authorities, and Federal 
procedures rather than the state authorized analogues to these 
provisions. Moreover, authorization of a state Program is a prospective 
action only and an authorized state Program only operates in lieu of 
the Federal Program as of the effective date of the authorization. The 
Agency may undertake enforcement of the Federal requirements for 
violations of those Federal requirements which occurred prior to the 
effective date of authorization of the state's Program. In this case, 
authorization of the Hawaii UST Program will be effective on September 
30, 2002.
    On May 23, 2001, the State of Hawaii submitted an official 
application to obtain final program approval to administer the 
Underground Storage Tank Program for petroleum and hazardous 
substances. On October 5, 2001, the EPA published a tentative decision 
announcing its intent to grant Hawaii final approval. Further 
background on the tentative decision to grant approval appears at 66 FR 
50963-50966, October 5, 2001.
    Along with the tentative determination, the EPA announced the 
availability of the application for public comment and the date of a 
public hearing on the application. The EPA requested advance notice for 
testimony and reserved the right to cancel the public hearing for lack 
of public interest. The hearing was held at Kawananakoa Middle School 
in Honolulu, Hawaii on November 13, 2001.

B. Significant Public Comments and EPA's Responses

    Written comments regarding the EPA's approval of Hawaii's 
Underground Storage Tank Program were received during the comment 
period from EnviroWatch, Inc. Oral comments regarding the EPA's 
approval of Hawaii's Underground Storage Tank Program were received 
during the public hearing from Carroll Cox, President of EnviroWatch, 
Inc., and Joe Ryan, a resident of Waimanalo.
    Additionally, in April 2001, prior to publication of EPA's 
tentative decision to authorize Hawaii's Underground Storage Tank 
Program, EPA received a Petition To Withdraw Hawaii Certification and 
Title VI Complaint of Discriminatory Acts (Petition to

[[Page 60162]]

Withdraw) challenging the administration and enforcement of 
environmental programs by the State of Hawaii and seeking withdrawal of 
authorization for all environmental programs. We have taken into 
consideration comments in the Petition relating to the Hawaii 
Underground Storage Tank Program in taking today's action. Today's 
action is not a final determination on the merits of the Petition to 
Withdraw. The significant issues raised by the commenters and EPA's 
responses are summarized below.
    1. Comment: EPA received comments relating to the Hawaii Department 
of Health's (HDOH) implementation of other programs for which Hawaii 
has been delegated authority by EPA. The comments generally asserted 
that HDOH has a track record of being unable to properly enforce other 
federally delegated programs and, thus, that the State would not 
adequately enforce its underground storage tank program. Specific 
examples cited included Hawaii's enforcement of the Clean Water Act, 
including the State's National Pollutant Discharge Elimination System 
(NPDES) program, Hawaii's investigation into a sewage dumping incident, 
and the purported failure of the State's Attorney General to give 
priority to environmental enforcement. The Petition to Withdraw also 
identified the State's economic condition and the reduction in force of 
State employees responsible for inspections and enforcement as a reason 
why the State would not be able to administer and enforce the UST 
program according to Federal guidelines and rules.
    Response: Each environmental program is unique and must be 
evaluated in light of the particular Federal and state requirements 
applicable to that program. Among other things, programs differ 
significantly in the numbers and types of pollutants regulated; the 
number, size and type of facilities which are regulated; the complexity 
and scope of regulatory requirements; regulatory mechanisms (for 
example, use of permits and prohibitions); tools for assessing 
compliance (e.g., inspections, self-monitoring and self-reporting); and 
enforcement options. Moreover, different programs vary in funding 
levels and sources, and staffing levels (both number of staff and 
required qualifications).
    Requirements applicable to EPA's authorization of Hawaii's UST 
program are found generally at 40 CFR part 281. These requirements 
include criteria for determining whether a state's program is ``no less 
stringent than'' the corresponding Federal program. See 40 CFR 281.30 
through 281.39. These requirements also include criteria for 
determining whether a state can adequately enforce its program. See 40 
CFR 281.40 through 281.43. EPA has reviewed and evaluated Hawaii's UST 
authorization application in light of the criteria set forth in 40 CFR 
part 281. EPA has determined that Hawaii's UST program meets the 
criteria set forth in 40 CFR part 281 and has determined that 
authorization of this program is appropriate in light of those 
criteria.
    With respect to HDOH's performance in enforcing its UST program, 
HDOH began implementation of its field citation program in May 2000. 
Field citations are issued for easily verifiable and correctable 
violations of Hawaii's UST rules, and involve lower penalty amounts 
than are assessed in traditional administrative enforcement actions. 
Since May 2000, HDOH has conducted 476 state-led field citation 
inspections and has issued 143 field citations assessing total 
penalties of $133,450. To date, 122 facilities have paid their assessed 
penalty for a total of $102,565 in penalties received by HDOH.
    Over the past year, HDOH initiated enforcement efforts (e.g., 
warning letters and proposed orders) against recalcitrant owners and 
operators at approximately 220 facilities who had failed to conduct 
response activities to address releases that occurred at their 
facilities prior to 1997. As a result, many of these facilities are 
currently conducting appropriate release response activities, including 
site assessments and cleanup. Work has been completed at approximately 
25 percent of these facilities and the cases are now closed.
    With respect to the portion of the comment related to HDOH's 
enforcement resources, in Fiscal Year (FY) 2003 (October 1, 2002-
September 30, 2003) Hawaii's UST and LUST program budgets are 
$420,402.00 and $673,551.00 respectively. HDOH has four full time UST 
inspector positions and has a goal of conducting a minimum of 400 UST 
facility inspections during FY2003. With approximately 1,100 operating 
UST facilities, and 400 UST facilities inspected annually, each of 
these facilities would be inspected at least once every three years to 
ensure compliance with State UST regulations. In addition to an 
aggressive FY2003 inspection schedule, HDOH identified ten 
administrative enforcement actions against non-compliant facilities in 
FY2002. Three of these cases have settled while an additional eight are 
in development or pending.
    With respect to the comments related to Hawaii's implementation and 
enforcement of the Clean Water Act, these are the same comments which 
were raised in the Petition. In response to the Petition, EPA decided 
to change its schedule of state program audits to perform an audit of 
Hawaii's NPDES program earlier than originally scheduled. Pursuant to 
the audit, EPA reviewed Hawaii's statutory authorities as well as 
enforcement mechanisms, and the audit raised some concerns, 
particularly related to enforcement. EPA is working with the State to 
address those concerns. We are also reviewing the issues raised in the 
Petition, and will respond directly to the Petitioner on those issues.
    2. Comment: EPA received comments expressing the concern that the 
HDOH was unable to ensure that other Hawaii State agencies complied 
with UST program requirements, including the Federal deadline for 
upgrading existing tanks (December 22, 1998, pursuant to 40 CFR 
280.21), (the corresponding State provision is found at Hawaii 
Administrative Rules [HAR] 11-281-18, and sets a deadline of January 
28, 2000, the effective date of the regulations). These comments 
focused generally on the failure of HDOH to identify or require closure 
of an UST by the Hawaii Department of Land and Natural Resources 
(HDLNR) at a pumphouse near Pearl Harbor's Richardson Field.
    Response: The HDOH has the legal authority to bring an enforcement 
action against another State agency and, in fact, HDOH has taken 
enforcement action against other State agencies. The EPA is satisfied 
that appropriate enforcement actions can and will be taken by HDOH 
against other non-complying State of Hawaii agencies when necessary. 
HDOH began its UST field citation program in April 2000. Since that 
time, HDOH has inspected 13 State facilities and has issued field 
citations to five of those facilities. The field citations assessed 
penalties ranging from a low of $150 up to a high of $1,750. EPA is 
confident that HDOH treats all tank owners and operators equally with 
respect to conducting inspections and taking enforcement action, 
including State agencies.
    EPA has reviewed the situation relating to the UST located at the 
pumphouse near Pearl Harbor's Richardson Field and is satisfied with 
HDOH's actions with respect to this UST. Given the dates of service of 
this UST, which was apparently taken out of service in 1960 prior to 
the 1962 transfer of the land to HDLNR, HDLNR would not ordinarily have 
the responsibility for closure of this UST. Under Section

[[Page 60163]]

9001(3)(B) of RCRA, 42 U.S.C. 6991(3)(B), for USTs no longer in service 
after November 8, 1984, the ``owner,'' who would ordinarily be 
responsible for closure, is the entity who owned the UST immediately 
before it was taken out of service. See also Hawaii Revised Statutes 
(HRS) Chapter 342-L1.
    3. Comment: EPA received comments expressing concern that the State 
has implemented its UST program in a discriminatory manner and that the 
State does not have an adequate environmental equity policy.
    Response: These comments are similar to the issues raised in the 
Petition To Withdraw Hawaii Certification and Title VI Complaint of 
Discriminatory Acts (Petition to Withdraw), which was rejected by EPA's 
Office of Civil Rights (OCR) in October of 2001. While the comments 
received on EPA's tentative decision to authorize Hawaii's UST program 
did not provide specifics with respect to these concerns, the Petition 
to Withdraw specifically referred to the incident relating to mercury 
contamination emanating from the pumphouse near Richardson Field with 
respect to the allegations of discriminatory conduct by the State.
    As set forth above in response to Comment 2 with respect to HDOH's 
actions relating to the UST at the pumphouse near Richardson Field, EPA 
has reviewed those actions and is satisfied that HDOH has acted 
appropriately. No other specific examples of HDOH acting in a 
discriminatory manner that specifically relate to HDOH's implementation 
of the UST program were identified by the comments or the Petition to 
Withdraw.
    With respect to today's decision to authorize Hawaii's UST Program, 
EPA must ensure that Hawaii has an adequate UST enforcement program. 
While EPA does not typically review environmental justice policies in 
the context of determining whether a state has an adequate UST 
enforcement program, EPA notes that, on January 2, 2002, the HDOH 
Environmental Health Administration issued an Environmental Equity 
Policy. This policy confirms that HDOH will ``through the 
implementation of federal and state environmental laws, rules, 
policies, and programs, ensure the fair and equitable treatment of all 
persons as it evaluates and addresses the risks and consequences 
associated with environmental pollution.''
    4. Comment: EPA received comments questioning the State's ability 
and ``political strength'' to enforce its UST requirements at Federal 
facilities. Additionally, questions were raised concerning the 
continued role of EPA with respect to Federal facility enforcement in 
the State, after authorization of the UST Program.
    Response: HDOH conducts inspections of military sites and has 
issued UST field citations to the military and other Federal facilities 
for violations of State UST requirements. These Federal facilities have 
returned to compliance as directed by the citations issued by HDOH. 
However, disputes have arisen between the facilities and HDOH regarding 
whether penalties assessed by the State must be paid by Federal 
facilities and whether the Federal government's sovereign immunity with 
respect to such penalties has been waived. This dispute regarding the 
waiver of sovereign immunity with respect to penalties assessed by 
state agencies is not limited to Hawaii, but is a national issue, 
affecting all state UST programs. The ability of HDOH to pursue 
violations and require compliance is not in question.
    EPA is continuing to offer assistance to the states, including 
Hawaii, for Federal facility UST inspections. As to EPA's role after 
authorization of the program, where appropriate, EPA will continue to 
exercise its enforcement authority, including the assessment of 
penalties, since EPA's administrative penalty authority against Federal 
UST facilities is not in dispute. EPA-lead inspections of Federal UST 
facilities are conducted jointly with HDOH. In addition, all inspection 
and enforcement related information gathered in connection with Federal 
UST facilities is shared between EPA and HDOH.
    5. Comment: EPA received comments expressing concern regarding the 
practical ability of citizens to seek a review of Hawaii's 
administration of the State's UST Program, once it has been delegated. 
The commenter was concerned that requests for review of the State's 
programs are referred to the State, rather than being handled by EPA. 
The commenter suggested that certain safeguards be implemented in order 
to ensure adequate review of such requests. These suggestions included 
requiring administrative review of the State Program upon the filing of 
a citizen's complaint and including possible sanctions against the 
State if it is not adequately implementing its Program.
    Response: The process for withdrawal of approval of authorized 
state UST programs is set forth at 40 CFR 281.60 and 281.61. 40 CFR 
281.61(b) cross-references the procedures set forth for withdrawal of 
approval of authorized state hazardous waste programs at 271.23(b) and 
(c). Both 40 CFR 281.61(b) and 271.23(b) allow interested persons to 
petition EPA to commence proceedings to withdraw approval of these 
state programs. EPA must respond in writing to any such petitions. 40 
CFR 271.23(b)(1). If EPA determines that proceedings to withdraw 
approval of an authorized UST program are appropriate, either in 
response to an interested person's petition or on the Agency's own 
initiative, EPA may order commencement of such proceedings. Petitions 
to withdraw approval of authorized state programs are not referred to 
the affected state for a decision. The only sanction specifically 
provided in the regulations is withdrawal of the program. Neither the 
statute nor the regulations provide for sanctions in addition to 
withdrawal of program approval against a state that is not adequately 
implementing its UST Program.
    6. Comment: EPA received comments criticizing EPA's criteria for 
deciding whether or not to hold a public hearing on EPA's tentative 
determination to authorize Hawaii's UST Program. The commenter asserted 
that the decision whether to hold a public hearing on that tentative 
determination should not be based on whether there was ``sufficient'' 
public interest, since, the commenter argued, that standard was vague 
and unfair.
    Response: The standard for determining whether a public hearing 
should be held on EPA's tentative decision to authorize a state program 
is set forth at 40 CFR 281.50(e)(4), which indicates that, if 
``insufficient public interest is expressed,'' EPA may cancel the 
public hearing. In any event, EPA held a public hearing on its 
tentative decision to authorize Hawaii's UST Program on November 13, 
2001. The hearing was held at Kawananakoa Middle School in Honolulu, 
Hawaii. Thus, regardless of the standard used to determine whether or 
not a hearing should be held, the public did in fact have an 
opportunity to attend a public hearing on EPA's tentative decision to 
authorize Hawaii's UST Program and the concerns raised by these 
comments are moot.
    7. Comment: EPA received comments expressing concern over whether 
or not EPA would continue to oversee Hawaii's implementation of its UST 
Program after authorization. These comments also requested 
clarification of the timing of approval of Hawaii's UST program and the 
standards used to determine whether or not to approve authorization.

[[Page 60164]]

    Response: The effective date of today's decision to authorize 
Hawaii's UST Program is September 30, 2002. The criteria used to 
evaluate Hawaii's UST Program are set forth generally at 40 CFR Part 
281. These regulations can be found on the web at http://
www.access.gpo.gov/nara/cfr/cfrhtml--00/Title--40/40cfr281--00.html.
    Pursuant to 40 CFR 281.24, at the time of approval of a state's 
application for authorization of its UST program, a Memorandum of 
Agreement (MOA) must be signed by the Regional Administrator and the 
appropriate official of the state lead agency. The MOA contains 
proposed areas of coordination between the state and EPA as well as a 
delineation of separate state and Federal roles and responsibilities. 
These roles and responsibilities include the following areas: 
Enforcement, compliance monitoring, EPA oversight, and sharing and 
reporting of information. In the MOA entered into between EPA and the 
State of Hawaii with respect to implementation of Hawaii's UST Program, 
EPA has assumed an oversight role with respect to the State's program. 
This oversight role will include an annual review of the State's 
Program in order to assist the State in implementing its Program, and 
to allow EPA to report to the President, the Congress and the public on 
the achievements of the State's UST Program. The MOA also envisions 
that EPA and the State will coordinate regarding desirable technical 
support that EPA may provide to the State, and regarding targeting of 
joint efforts to prevent and mitigate environmental problems associated 
with the improper management of USTs.
    8. Comment: EPA received comments expressing concerns regarding 
Hawaii's UST Program and whether or not the Program was as stringent as 
the Federal UST program.
    Response: EPA has determined that Hawaii's application for 
authorization of its State UST Program meets the criteria for approval 
set forth at 40 CFR part 281. As part of this determination, EPA has 
determined that Hawaii's UST Program is ``no less stringent'' than the 
Federal UST program in accordance with 40 CFR part 281, subpart C. EPA 
has also determined that the State has provided for an adequate 
enforcement program pursuant to 40 CFR part 281, subpart D, and has 
provided for public participation in the enforcement process in 
accordance with 40 CFR 281.42.
    With respect to EPA's determination that Hawaii's UST program is 
``no less stringent'' than the Federal UST program, in its Federal 
Register notice announcing its tentative decision to authorize Hawaii's 
UST Program, EPA specifically identified certain areas of the Hawaii 
program which EPA considers broader in scope than the Federal UST 
program. See 66 FR 50964-50965 (October 5, 2001). While these ``broader 
in scope'' provisions are enforceable by the State, they are not part 
of the authorized program and are thus not enforceable by EPA. EPA has 
determined that the remaining aspects of the State's UST Program are as 
stringent or more stringent than the Federal program. EPA notes that 
Hawaii's deadline for UST owner/operators to upgrade their existing 
USTs, found at Hawaii Administrative Rules (HAR) 11-281-18, was January 
28, 2000, the effective date of the Hawaii regulations. The Federal 
deadline for upgrading existing tanks, found at 40 CFR 280.21, was 
December 22, 1998. For USTs which met Hawaii's deadline but failed to 
meet the Federal deadline, Hawaii and EPA, through the MOA, have agreed 
that EPA will assume all related enforcement responsibilities.
    As explained above, authorization of a state Program is a 
prospective action only and an authorized state Program only operates 
in lieu of the Federal Program as of the effective date of the 
authorization. The Agency may undertake enforcement of the Federal 
requirements for violations of those Federal requirements which 
occurred prior to the effective date of authorization of the state's 
Program. Since the Hawaii UST Program operates in lieu of the Federal 
UST Program as of September 30, 2002, the Federal deadline for 
upgrading existing tanks, found at 40 CFR 280.21, December 22, 1998, is 
not affected by this authorization. EPA may continue to undertake 
enforcement of violations of the Federal regulation, 40 CFR 280.21, 
occurring between December 22, 1998 and September 30, 2002. EPA may 
also enforce the State regulation, HAR 11-281-18, with respect to tanks 
that continue to be in violation of the upgrade requirement on or after 
September 30, 2002.
    With the exception of those provisions deemed ``broader in scope'' 
than the Federal program, the Hawaii program being authorized by 
today's action consists of the following statutory and regulatory 
provisions: HRS 128D-4; HRS 342L-1 through 342L-53; and HAR 11-281-01 
through 11-281-131.
    EPA has also determined that the State has provided for public 
participation in the enforcement process in accordance with 40 CFR 
281.42 and that the State's enforcement program is ``adequate'' in 
terms of the factors set forth at 40 CFR part 281, subpart D. Based on 
these determinations, EPA is authorizing the State's UST Program 
pursuant to today's rulemaking.
    9. Comment: The Petition to Withdraw asserted that the State had 
denied access to public documents in violation of the Hawaii Uniform 
Information Practices Act (HRS 92F-1 et seq.) (UIPA).
    Response: EPA notes that the UIPA contains provisions allowing 
persons aggrieved by denial of access to State governmental records to 
compel disclosure of the requested information. See HRS 92F-15.
    10. Comment: EPA received comments requesting information on how 
farm tanks and agricultural businesses using USTs are regulated and how 
spills from such systems would be addressed.
    Response: The Federal UST requirements exclude from the definition 
of ``underground storage tank'' or ``UST'' any ``[f]arm or residential 
tank of 1,100 gallons or less capacity used for storing motor fuel for 
noncommercial purposes.'' 40 CFR 280.12. The Federal regulations define 
``farm tank'' as ``a tank located on a tract of land devoted to the 
production of crops or raising animals, including fish, and associated 
residences and improvements.'' 40 CFR 280.12. The Federal definition of 
``farm tank'' also makes clear that a farm tank must be located on the 
farm property and that the term ``farm'' includes fish hatcheries, 
rangeland and nurseries with growing operations. 40 CFR 280.12. 
Hawaii's definitions of ``underground storage tank'' or ``UST'', 
``farm'' and ``farm tank'' track the Federal definitions but also 
indicate that a farm tank must be used only for farm related purposes. 
See HAR 11-281-03. Thus, EPA has determined that Hawaii's UST Program 
is broader in scope than the Federal UST program to the extent that 
Hawaii regulates 1,100 gallon capacity or less USTs storing motor fuel 
on farms when such USTs are used for non-commercial purposes other than 
farming purposes.
    Spills from tanks which are excluded from the definition of 
``underground storage tank'' or ``UST'' under Hawaii's UST Program 
would not be addressed using the corrective action authorities set 
forth at HAR 11-281 Subchapter 7. However, the State may have 
additional authorities available to it to address cleanup of such 
spills under certain circumstances. For instance, HRS 128D-4 provides 
the State with specific release response and enforcement authorities in 
order to address certain releases of hazardous substances. Other State 
and Federal authorities may also

[[Page 60165]]

exist, depending on the circumstances associated with any particular 
spill.

C. Decision

    I conclude that the State of Hawaii's application for final program 
approval meets all of the statutory and regulatory requirements 
established by Subtitle I of RCRA. Accordingly, Hawaii is granted final 
approval to operate its Underground Storage Tank Program for petroleum 
and hazardous substances. The State of Hawaii, as of the effective date 
of this rule, has the responsibility for managing all regulated 
underground storage tank facilities within its border and carrying out 
all aspects of the Underground Storage Tank Program where the EPA will 
have regulatory authority. Hawaii also has primary enforcement 
responsibility, although the EPA retains the right to conduct 
enforcement actions under section 9006 of RCRA and to gather 
information under section 9005 of RCRA.

D. Administrative Requirements

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, Local, and Tribal 
Governments and the private sector. Under section 202 of the UMRA, the 
EPA generally must prepare a written statement, including a cost-
benefit analysis, for proposed and final rules with ``Federal 
mandates'' that may result in expenditures to State, Local, and Tribal 
Governments, in the aggregate, or to the private sector, of $100 
million or more in any one year. Before promulgating an EPA rule for 
which a written statement is needed, section 205 of the UMRA generally 
requires the EPA to identify and consider a reasonable number of 
regulatory alternatives and adopt the least costly, most cost-effective 
or least burdensome alternative that achieves the objectives of the 
rule. The provisions of section 205 do not apply when they are 
inconsistent with applicable law. Moreover, section 205 allows the EPA 
to adopt an alternative other than the least costly, most cost-
effective, or least burdensome alternative if the Administrator 
publishes with the final rule an explanation why that alternative was 
not adopted. Before the EPA establishes any regulatory requirements 
that may significantly or uniquely affect small governments, including 
Tribal Governments, it must have developed under section 203 of the 
UMRA a small government agency plan. The plan must provide for 
notifying potentially affected small governments, enabling Officials of 
affected small governments to have meaningful and timely input in the 
development of the EPA regulatory proposals with significant Federal 
intergovernmental mandates, and informing, educating, and advising 
small governments on compliance with the regulatory requirements.
    Today's rule contains no Federal mandates (under the regulatory 
provisions of Title II of the UMRA) for State, Local or Tribal 
Governments or the private sector. The UMRA generally excludes from the 
definition of ``Federal intergovernmental mandate'' duties that arise 
from participation in a voluntary Federal program. Hawaii's 
participation in the EPA's State Program approval process under RCRA 
Subtitle I is voluntary. Thus, today's rule is not subject to the 
requirements of Sections 202 and 205 of the UMRA.
    In addition, the EPA has determined that this rule contains no 
regulatory requirements that might significantly or uniquely affect 
small governments. Although small governments may own and/or operate 
underground storage tanks, they are already subject to the regulatory 
requirements under the existing State requirements that the EPA is now 
approving and, thus, are not subject to any additional significant or 
unique requirements by virtue of this action. Thus, the requirements of 
section 203 of the UMRA also do not apply to today's rule.

Regulatory Flexibility Act (RFA) (as Amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA)), 5 U.S.C. 601 et 
seq.

    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment rule-
making requirements under the Administrative Procedure Act or any other 
statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions.
    For the purposes of assessing the impacts of today's action on 
small entities, a small entity is defined as: (1) A small business as 
specified in the Small Business Administration regulations; (2) a small 
governmental jurisdiction that is a government of a city, county, town, 
school district, or special district with a population of less than 
50,000; and (3) a small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of this action on small 
entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This action 
does not impose any new requirements on small entities because small 
entities that own and/or operate underground storage tanks are already 
subject to the State underground storage tank requirements which the 
EPA is now approving. This action merely approves for the purpose of 
RCRA Section 9004 those existing State requirements.

Submission to Congress and the Comptroller General

    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 rule 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 of the rule in today's Federal Register. This rule is 
not a ``major rule'' as defined by 5 U.S.C. 804(2).

Compliance With Executive Order 12866

    The Office of Management and Budget has exempted this rule from the 
requirements of Executive Order 12866.

Compliance With Executive Order 13045 (Children's Health)

    Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks,'' applies to any rule that: (1) The 
Office of Management and Budget determines is ``economically 
significant'' as defined under Executive Order 12866; and (2) concerns 
an environmental health or safety risk that the EPA has reason to 
believe may have a disproportionate effect on children. If the 
regulatory action meets both criteria, the Agency must evaluate the 
environmental health or safety effects of the planned rule on children 
and explain why the planned regulation is preferable to other 
potentially effective and reasonably feasible alternatives considered 
by the Agency.
    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that are based on

[[Page 60166]]

health or safety risks, such that the analysis required under section 
5-501 of the Order has the potential to influence the regulation. This 
rule is not subject to Executive Order 13045 because it approves a 
state program.

Compliance With Executive Order 13175 (Consultation and Coordination 
With Indian Tribal Governments)

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires the EPA to develop an accountable process to ensure 
``meaningful and timely input by Tribal Officials in the development of 
regulatory policies that have Tribal implications.'' ``Policies that 
have Tribal implications'' is defined in the Executive Order to include 
regulations that have ``substantial direct effects on one or more 
Indian Tribes, on the relationship between the Federal Government and 
the Indian Tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian Tribes.''
    This rule does not have Tribal implications. There are no 
federally-recognized Indian tribes within the State of Hawaii. The 
authorization of Hawaii's UST program will not have substantial direct 
effects on tribal governments, on the relationship between the Federal 
government and Indian tribes, or on the distribution of power and 
responsibilities between the Federal government and Indian tribes, as 
specified in Executive Order 13175. Even if Indian Country existed 
within the State, Hawaii would not be approved to implement the RCRA 
Underground Storage Tank Program in Indian Country and this action 
would have no effect on the Underground Storage Tank Program that the 
EPA would implement in Indian Country within the State. Thus, Executive 
Order 13175 does not apply to this rule.

Compliance With Executive Order 13132 (Federalism)

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires the EPA to develop an accountable process to ensure 
``meaningful and timely input by State and Local Officials in the 
development of regulatory policies that have Federalism implications.'' 
``Policies that have Federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the National 
Government and the States, or on the distribution of power and 
responsibilities among the various levels of Government.''
    Under section 6 of Executive Order 13132, the EPA may not issue a 
regulation that has Federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal Government provides the funds necessary to pay the direct 
compliance costs incurred by State and Local Governments, or EPA 
consults with State and Local Officials early in the process of 
developing the proposed regulation. The EPA also may not issue a 
regulation that has Federalism implications and that preempts State law 
unless the Agency consults with State and Local Officials early in the 
process of developing the proposed regulation.
    This action does not have Federalism implications. It will not have 
a substantial direct effect on states, on the relationship between the 
National Government and the states, or on the distribution of power and 
responsibilities among the various levels of Government, as specified 
in Executive Order 13132, because it affects only one state. This 
action simply provides the EPA approval of Hawaii's voluntary proposal 
for its State Underground Storage Tank Program to operate in lieu of 
the Federal Underground Storage Tank Program in that State. Thus, the 
requirements of Section 6 of the Executive Order do not apply.

National Technology Transfer and Advancement Act

    As noted in the proposed rule, section 12(d) of the National 
Technology Transfer and Advancement Act of 1995 (``NTTAA''), Public Law 
104-113, Section 12(d) (15 U.S.C. 272) directs the EPA to use voluntary 
consensus standards in its regulatory activities unless to do so would 
be inconsistent with applicable law or otherwise impractical. Voluntary 
consensus standards are technical standards (e.g., materials 
specifications, test methods, sampling procedures, and business 
practices) that are developed or adopted by voluntary consensus 
standards bodies. The NTTAA directs the EPA to provide Congress, 
through OMB, explanations when the Agency decides not to use available 
and applicable voluntary consensus standards.
    This action does not involve technical standards. Therefore, the 
EPA did not consider the use of any voluntary consensus standards.

Paperwork Reduction Act

    Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., Federal 
agencies must consider the paperwork burden imposed by any information 
request contained in a proposed rule or a final rule. This rule will 
not impose any information requirements upon the regulated community.

Executive Order 13211 (Energy Effects)

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it is not a 
significant regulatory action under Executive Order 12866.

List of Subjects in 40 CFR Part 281

    Environmental protection, Administrative practice and procedure, 
Hazardous materials, State program approval, Underground storage tanks.

    Authority: This notice is issued under the authority of Section 
9004 of the Solid Waste Disposal Act as amended 42 U.S.C. 6912(a), 
6974(b), 6991c.

    Dated: September 13, 2002.
Laura Yoshii,
Acting Regional Administrator, Region 9.
[FR Doc. 02-24228 Filed 9-24-02; 8:45 am]
BILLING CODE 6560-50-P

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