Part I.  Hawaii Environmental Response Law

Published: 2015

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  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


     (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


              (i)  Any direct or indirect familial relationship;


             (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


     "Contractual relationship" means

relationships involving land contracts, deeds or other instruments transferring

title or possession.

     "Department" means the department of


     "Director" means the director of


     "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


     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"


     (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


     "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]




  The amendment made by L 2014, c 218, §8 is not included in this section.



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