PART I.
HAWAII ENVIRONMENTAL RESPONSE LAW
Note
Sections 128D-1 to
128D-23 designated as Part I by L 1997, c 377, §3.
§128D-1 Definitions. As used in this
chapter, unless the context otherwise requires:
"Bona fide prospective purchaser"
means a person (or a tenant of a person) who acquires ownership of a facility
after October 1, 2009, and establishes each of the following by a preponderance
of the evidence:
(1) All disposal of hazardous substances at the
facility occurred before the person acquired the facility;
(2) The person carried out all appropriate inquiries
when, on or before the date on which the person acquired the facility:
(A) The person made all appropriate inquiries
into the previous ownership and uses of the facility in accordance with
generally accepted good commercial and customary standards and practices in
accordance with subparagraphs (B) and (C);
(B) The standards and practices referred to in
42 United States Code section 9601(35)(B)(ii) and (iv) and 40 Code of Federal
Regulations Part 312 are used unless the director requires otherwise by rules
adopted pursuant to chapter 91; and
(C) In the case of property in residential use
or other similar use at the time of purchase by a nongovernmental or
noncommercial entity, a facility inspection and title search that reveal no
basis for further investigation shall be considered to satisfy the requirements
of this paragraph;
(3) The person provides all legally required notices
with respect to the discovery or release of any hazardous substances at the
facility;
(4) The person exercises appropriate care with
respect to hazardous substances found at the facility by taking reasonable
steps to:
(A) Stop any continuing release;
(B) Prevent any threatened future release; and
(C) Prevent or limit human, environmental, or
natural resource exposure to any previously released hazardous substance;
(5) The person provides full cooperation, assistance,
and access to persons who are authorized to conduct response actions or natural
resource restoration at a vessel or facility (including the cooperation and
access necessary for the installation, integrity, operation, and maintenance of
any complete or partial response actions or natural resource restoration at the
vessel or facility);
(6) The person:
(A) Is in compliance with any land use
restrictions established or relied on in connection with the response action at
a vessel or facility; and
(B) Does not impede the effectiveness or
integrity of any institutional control employed at the vessel or facility in
connection with a response action;
(7) The person complies with any request for
information or administrative subpoena issued by the President of the United
States under 42 United States Code Chapter 103, by the director under chapter
128D, or issued by any state or federal court; and
(8) The person is not:
(A) Potentially liable, or affiliated with any
other person who is potentially liable, for response costs at a facility
through:
(i) Any direct or indirect familial relationship;
or
(ii) Any contractual, corporate, or financial
relationship (other than a contractual, corporate, or financial relationship
that is created by the instruments by which title to the facility is conveyed
or financed or by a contract for the sale of goods or services); or
(B) The result of a reorganization of a
business entity that was potentially liable.
"CERCLA" means the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, P.L. 96-510
(42 U.S.C. §§9601-9675), as amended.
"Clean Water Act" means the Federal
Water Pollution Control Act of 1972, P.L. 92-500 (33 U.S.C. §§1251-1387), as
amended.
"Contractual relationship" means
relationships involving land contracts, deeds or other instruments transferring
title or possession.
"Department" means the department of
health.
"Director" means the director of
health.
"Environment" means any waters,
including surface water, ground water, or drinking water supply, any land
surface or any subsurface strata, or any ambient air within the State of Hawaii
or under the jurisdiction of the State.
"Facility" means any building,
structure, installation, equipment, pipe or pipeline (including any pipe into a
sewer or publicly owned treatment works), well, pit, pond, lagoon, impoundment,
ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft,
or any site or area where a hazardous substance or pollutant or contaminant has
been deposited, stored, disposed of, or placed, or otherwise comes to be
located; but does not include any consumer product in consumer use.
"Federal on-scene coordinator" means
the federal official predesignated by the United States Environmental
Protection Agency or the United States Coast Guard to coordinate and direct
federal responses under subpart D, or the official designated by the lead
agency to coordinate and direct removal under subpart E, of the National
Contingency Plan.
"Fund" means the environmental
response revolving fund.
"Hazardous substance" includes any
substance designated pursuant to section 311(b)(2)(A) of the Clean Water Act;
any element, compound, mixture, solution, or substance designated pursuant to
section 102 of CERCLA; any hazardous waste having the characteristics
identified under or listed pursuant to section 3001 of the Solid Waste Disposal
Act; any toxic pollutant listed under section 307(a) of the Clean Water Act;
any hazardous air pollutant listed under section 112 of the Clean Air Act, as
amended (42 U.S.C. §§7401-7626); any imminently hazardous chemical substance or
mixture regulated under section 7 of the Toxic Substances Control Act, as
amended (15 U.S.C. §§2601-2671), oil, trichloropropane, and any other substance
or pollutant or contaminant designated by rules adopted pursuant to this
chapter.
In adopting rules, the director shall consider
any substance or mixture of substances, including but not limited to feedstock
materials, products, or wastes, which, because of their quantity,
concentration, or physical, chemical, or infectious characteristics, may:
(1) Cause or significantly contribute to an increase
in serious irreversible or incapacitating reversible illness; or
(2) Pose a substantial present or potential hazard to
human health, to property, or to the environment when improperly stored,
transported, released, or otherwise managed.
"National contingency plan" means the
national contingency plan published under section 311(d) of the Clean Water Act
or revised pursuant to section 105 of CERCLA.
"Natural resources" means land, fish,
wildlife, biota, air, water, ground water, drinking water supplies, and other
such resources belonging to, managed by, held in trust by, appertaining to, or
otherwise controlled by the State of Hawaii, any county, or by the United
States to the extent that the latter are subject to state law.
"Oil" means oil of any kind or in any
form, including, but not limited to, petroleum, fuel oil, sludge, oil refuse,
oil mixed with wastes, crude oil or any fraction or residue.
"Owner" or "operator"
means:
(1) In the case of a vessel, any person owning,
operating, or chartering by demise the vessel;
(2) In the case of an onshore facility or an offshore
facility, any person owning or operating the facility; and
(3) In the case of any facility, title or control of
which was conveyed due to bankruptcy, foreclosure, tax delinquency,
abandonment, or similar means to a unit of a state or local government, any
person who owned, operated, or otherwise controlled activities at the facility
immediately beforehand.
"Owner" or "operator" does
not include a person who, without participating in the management of the vessel
or facility, holds indicia of ownership primarily to protect its security
interest in the vessel or facility. Until such time as the department adopts
rules pertaining to lenders, the provisions of the Asset Conservation, Lender
Liability and Deposit Insurance Protection Act of 1996 shall apply to the
actions of lenders after July 1, 1997.
"Person" means any individual, firm,
corporation, association, partnership, consortium, joint venture, commercial
entity, state, county, commission, political subdivision of the State, or, to
the extent they are subject to this chapter, the United States or any
interstate body.
"Pollutant or contaminant" means any
element, substance, compound, or mixture, which after release into the
environment and upon exposure, ingestion, inhalation, or assimilation into any
organism either directly from the environment or indirectly by ingestion
through food chains, will or may reasonably be anticipated to cause death,
disease, behavioral abnormalities, cancer, genetic mutation, physiological
malfunctions (including malfunctions in reproduction) or physical deformations,
in such organisms or their offspring.
"Release" means any spilling,
leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping, or disposing of any hazardous substance or
pollutant or contaminant into the environment, (including the abandonment or
discarding of barrels, containers, and other closed receptacles containing any
hazardous substance or pollutant or contaminant); but excludes:
(1) Any release which results in exposure of persons
solely within a workplace, with respect to a claim which such exposed persons
may assert against their employer;
(2) Emissions from the engine exhaust of a motor
vehicle, rolling stock, aircraft, vessel, or pipeline pumping station engine;
(3) Release of source, byproduct, or special nuclear
material from a nuclear incident, as those terms are defined in the Atomic Energy
Act of 1954 (42 U.S.C. §2011), if such release is subject to requirements with
respect to financial protection established by the Nuclear Regulatory
Commission under 42 U.S.C. §2210;
(4) Any release resulting from the normal application
of fertilizer;
(5) Any release resulting from the legal application
of a pesticide product registered under the Federal Insecticide, Fungicide, and
Rodenticide Act;
(6) Releases from sewerage systems collecting and
conducting primarily domestic wastewater; or
(7) Any release permitted by any federal, state, or
county permit or other legal authority.
"Remedy" or "remedial
action" means those actions consistent with permanent correction taken
instead of or in addition to removal actions in the event of a release or threatened
release of a hazardous substance or pollutant or contaminant into the
environment, to prevent or minimize the release of hazardous substances so that
they do not migrate to cause substantial danger to present or future public
health or welfare or the environment.
(1) The term includes, but is not limited to, such
actions at the location of the release as storage, confinement, perimeter
protection using dikes, trenches, or ditches, clay cover, neutralization,
cleanup of released hazardous substances or pollutants or contaminants or
associated contaminated materials, recycling or reuse, diversion, destruction,
segregation of reactive wastes, dredging or excavations, repair or replacement
of leaking containers, collection of leachate and runoff, onsite treatment or
incineration, provision of alternative water supplies, and any monitoring
reasonably required to assure that such actions protect the public health or
welfare or the environment.
(2) The term includes the costs of permanent
relocation of residents and businesses and community facilities where the
director determines that, alone or in combination with other measures, such
relocation is more cost-effective than and environmentally preferable to the
transportation, storage, treatment, destruction, or secure disposition offsite
of hazardous substances or pollutants or contaminants, or may otherwise be
necessary to protect the public health or welfare.
(3) The term does not include the offsite transport
of hazardous substances or pollutants or contaminants, or the storage,
treatment, destruction, or secure disposition offsite of such hazardous
substances or pollutants or contaminants or contaminated materials unless the
director determines that such actions: are more cost-effective than other remedial
actions; will create new capacity to manage hazardous substances in addition to
those located at the affected facility; or are necessary to protect public
health or welfare or the environment from a present or potential risk which may
be created by further exposure to the continued presence of such hazardous
substances or pollutants or contaminants.
"Remove" or "removal
action" means the cleanup of released hazardous substances or pollutants
or contaminants from the environment, such actions as may be necessary to take
in the event of the threat of release of hazardous substances or pollutants or
contaminants into the environment, such actions as may be necessary to monitor,
assess, and evaluate the release or threat of release of hazardous substances or
pollutants or contaminants, the disposal of removed material, or the taking of
such other actions as may be necessary to prevent, minimize, or mitigate damage
to the public health or welfare or to the environment, which may otherwise
result from a release or threat of release. The term includes, in addition,
without being limited to, security fencing or other measures to limit access,
provision of alternative water supplies, temporary evacuation and housing of
threatened individuals not otherwise provided for, and any emergency
assistance.
"Respond" or "response"
means remove, removal, remedy, or remedial action; and all such terms include
government enforcement activities related thereto.
"SARA" means the Superfund Amendments
and Reauthorization Act of 1986, P.L. 99-499.
"State on-scene coordinator" means
the state official designated by the department of health to coordinate and
direct responses under this chapter.
"Vessel" means every description of
watercraft or other artificial contrivance used, or capable of being used, as a
means of transportation on water. [L 1988, c 148, pt of §2; am L 1990, c 298,
pt of §18; am L 1991, c 280, §2; am L 1993, c 324, §1; am L 1997, c 377, §4; am
L 2009, c 125, §2; am L 2012, c 34, §5]
Note
The amendment made by L 2014, c 218, §8 is not included in this section.