[Federal Register: September 25, 2002 (Volume 67, Number 186)]
[Rules and Regulations]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 281
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.
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
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.
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
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
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
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
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
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
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
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.
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://
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
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
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
exist, depending on the circumstances associated with any particular
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
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
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
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
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),
Dated: September 13, 2002.
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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