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.

 

 

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