Wastewater; Environ. Protect.

Includes factors to be considered when determining civil and
administrative penalties regarding the state water pollution law.
Allows the DOH to establish a permanent exempt position for an
ecological risk assessor.  Adds a new license category for
environmental health services professionals.  Clarifies certain
provisions relating to the DOH. (SB1024 HD1)

THE SENATE                              S.B. NO.           S.D. 3
TWENTIETH LEGISLATURE, 1999                                H.D. 1
STATE OF HAWAII                                            

                   A  BILL  FOR  AN  ACT



 1                              PART I
 2      SECTION 1.  Section 342D-30, Hawaii Revised Statutes, is
 3 amended by amending subsection (a) to read as follows:
 4      "(a)  Any person who violates this chapter, any rule, or any
 5 term or condition of a permit or variance issued pursuant to this
 6 chapter shall be fined not more than $25,000 for each separate
 7 offense.  Each day of each violation shall constitute a separate
 8 offense.  Any action taken in court to impose or collect the
 9 penalty provided for in this section shall be considered a civil
10 action.  In determining the amount of a civil penalty, the court
11 shall consider:
12      (1)  The seriousness of the violation or violations;
13      (2)  The economic benefit, if any, resulting from the
14           violation;
15      (3)  Any history of such violations;
16      (4)  Any good faith efforts to comply with the applicable
17           requirements;
18      (5)  The economic impact of the penalty on the violator; and
19      (6)  Other matters as justice may require.

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 1 It shall be presumed that the violator's economic and financial
 2 conditions allow payment of the penalty, and the burden of proof
 3 of the contrary shall be on the violator."
 4      SECTION 2.  Section 342D-31, Hawaii Revised Statutes, is
 5 amended by amending subsection (b) to read as follows:
 6      "(b)  Factors to be considered in imposing an administrative
 7 penalty shall include:
 8      (1)  The nature, circumstances, extent, gravity, and history
 9           of the violation and of any prior violations;
10      (2)  The economic benefit to the violator, or anticipated by
11           the violator, resulting from the violation;
12      (3)  The opportunity, difficulty, and history of corrective
13           action;
14      (4)  Good faith efforts to comply[;] and degree of
15           culpability; and
16      (5)  Such other matters as justice may require."
17                              PART II
18      SECTION 3.  The department of health is moving toward
19 adoption of a risk-based environmental management strategy, which
20 is based upon risk assessment to human health and the
21 environment, rather than upon rigid technical standards.
22      Under the Comprehensive Emergency Response, Compensation and
23 Liability Act of 1980 (CERCLA) and the Oil Pollution Act of 1990
24 (OPA 90), the department of health has responsibility as a

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 1 "natural resources trustee."  To fulfill this responsibility, the
 2 department must have the ability to evaluate the impact of
 3 chemical releases and oil spills on the complex ecosystems of
 4 Hawaii.  This expertise requires an individual who is trained and
 5 experienced in the field of ecological risk assessment.
 6      In addition, as a trustee, the department is required to
 7 conduct damage assessments and negotiate penalties with those
 8 responsible for chemical releases and oil spills that harm the
 9 environment.
10      To do this effectively, the department must have expertise
11 in-house to support the claims made by the State.  It is
12 difficult for the department to make its case and negotiate
13 successfully without a credible expert in the area of natural
14 biology and ecological risk assessment.  This is a very
15 specialized field of study and the expertise will support all the
16 programs of the environmental health administration.
17      SECTION 4.  Chapter 128D, Hawaii Revised Statutes, is
18 amended by adding a new section to be appropriately designated
19 and to read as follows:
20      "128D-    Ecological risk assessor.  The department may
21 establish a permanent exempt position for an ecological risk
22 assessor for the purpose of assessing ecological risks and
23 damages.  The position shall be appointed by the director without

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 1 regard to chapters 76 and 77.  The funds for this position shall
 2 come from the environmental response revolving fund established
 3 in section 128D-2; provided that the duties of the ecological
 4 risk assessor shall bear a rational nexus to the intent and
 5 purposes of chapter 128D."
 6                             PART III
 7      SECTION 5.  Section 321-11, Hawaii Revised Statutes, is
 8 amended to read as follows:
 9      "321-11  Subjects of health rules, generally.  The
10 department pursuant to chapter 91 may adopt rules that it deems
11 necessary for the public health and safety respecting:
12      (1)  Nuisances, foul or noxious odors, gases, vapors, waters
13           in which mosquitoes breed or may breed, sources of
14           filth, and causes of sickness or disease, within the
15           respective districts of the State, and on board any
16           vessel;
17      (2)  Adulteration and misbranding of food or drugs;
18      (3)  Location, air space, ventilation, sanitation, drainage,
19           sewage disposal, and other health conditions of
20           buildings, courts, construction projects, excavations,
21           pools, watercourses, areas, and alleys;
22      (4)  Privy vaults and cesspools;
23      (5)  Fish and fishing;

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 1      (6)  Interments and dead bodies;
 2      (7)  Disinterments of dead human bodies, including the
 3           exposing, disturbing, or removing of these bodies from
 4           their place of burial, or the opening, removing, or
 5           disturbing after due interment of any receptacle,
 6           coffin, or container holding human remains or a dead
 7           human body or a part thereof and the issuance and terms
 8           of permits for the aforesaid disinterments of dead
 9           human bodies;
10      (8)  Cemeteries and burying grounds;
11      (9)  Laundries, and the laundering, sanitation, and
12           sterilization of articles including linen and uniforms
13           used by or in the following businesses and professions:
14           barber shops, manicure shops, beauty parlors,
15           electrology shops, restaurants, soda fountains, hotels,
16           rooming and boarding houses, bakeries, butcher shops,
17           public bathhouses, midwives, masseurs, and others in
18           similar calling, public or private hospitals, and
19           canneries and bottling works where foods or beverages
20           are canned or bottled for public consumption or sale;
21           provided that nothing in this chapter shall be
22           construed as authorizing the prohibiting of laundering,
23           sanitation, and sterilization by those conducting any

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 1           of these businesses or professions where the laundering
 2           or sterilization is done in any efficient and sanitary
 3           manner;
 4     (10)  Hospitals, freestanding surgical outpatient facilities,
 5           skilled nursing facilities, intermediate care
 6           facilities, adult residential care homes, adult foster
 7           homes, assisted living facilities, special treatment
 8           facilities and programs, home health agencies,
 9           hospices, freestanding birthing facilities, adult day
10           health centers, independent group residences, and
11           therapeutic living programs, but excluding youth
12           shelter facilities unless clinical treatment of mental,
13           emotional, or physical disease or handicap is a part of
14           the routine program or constitutes the main purpose of
15           the facility, as defined in section 346-16 under "child
16           care institution".  For the purpose of this paragraph,
17           "adult foster home" has the same meaning as provided in
18           section 321-11.2;
19     (11)  Hotels, rooming houses, lodging houses, apartment
20           houses, tenements, and residences for persons with
21           developmental disabilities including, but not limited
22           to, those built under federal funding;
23     (12)  Laboratories;

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 1     (13)  Any place or building where noisome or noxious trades
 2           or manufacturers are carried on, or intended to be
 3           carried on;
 4     (14)  Milk;
 5     (15)  Poisons and hazardous substances, the latter term
 6           including but not limited to any substance or mixture
 7           of substances which:
 8           (A)  Is corrosive;
 9           (B)  Is an irritant;
10           (C)  Is a strong sensitizer;
11           (D)  Is inflammable; or
12           (E)  Generates pressure through decomposition, heat, or
13                other means,
14           if the substance or mixture of substances may cause
15           substantial personal injury or substantial illness
16           during or as a proximate result of any customary or
17           reasonably foreseeable handling or use, including
18           reasonably foreseeable ingestion by children;
19     (16)  Pig and duck ranches;
20     (17)  Places of business, industry, employment, and commerce,
21           and the processes, materials, tools, machinery, and
22           methods of work done therein; and places of public
23           gathering, recreation, or entertainment;

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 1     (18)  Any restaurant, theater, market, stand, shop, store,
 2           factory, building, wagon, vehicle, or place where any
 3           food, drug, or cosmetic is manufactured, compounded,
 4           processed, extracted, prepared, stored, distributed,
 5           sold, offered for sale, or offered for human
 6           consumption or use;
 7     (19)  Foods, drugs, and cosmetics, and the manufacture,
 8           compounding, processing, extracting, preparing,
 9           storing, selling, and offering for sale, consumption,
10           or use of any food, drug, or cosmetic;
11     (20)  Devices as defined in section 328-1;
12     (21)  Sources of ionizing radiation;
13     (22)  Medical examination, vaccination, revaccination, and
14           immunization of school children.  No child shall be
15           subjected to medical examination, vaccination,
16           revaccination, or immunization, whose parent or
17           guardian objects in writing thereto on grounds that the
18           requirements are not in accordance with the religious
19           tenets of an established church of which the parent or
20           guardian is a member or adherent, but no objection
21           shall be recognized when, in the opinion of the
22           department, there is danger of an epidemic from any
23           communicable disease;

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 1     (23)  Disinsectization of aircraft entering or within the
 2           State as may be necessary to prevent the introduction,
 3           transmission, or spread of disease or the introduction
 4           or spread of any insect or other vector of significance
 5           to health; and
 6    [(24)  Fumigation, including the process by which substances
 7           emit or liberate gases, fumes, or vapors which may be
 8           used for the destruction or control of insects, vermin,
 9           rodents, or other pests, which, in the opinion of the
10           department, may be lethal, poisonous, noxious, or
11           dangerous to human life;
12     (25)] (24)  Ambulances and ambulance equipment[;
13     (26)  Development, review, approval, or disapproval of
14           management plans submitted pursuant to the Asbestos
15           Hazard Emergency Response Act of 1986, Public Law 99-
16           519; and
17     (27)  Development, review, approval, or disapproval of an
18           accreditation program for specially trained persons
19           pursuant to the Residential Lead-Based Paint Hazard
20           Reduction Act of 1992, Public Law 102-550].
21     The department may require any certificates, permits, or
22 licenses that it may deem necessary to adequately regulate the
23 conditions or businesses referred to in this section."

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 1     SECTION 6.  Section 321-11.5, Hawaii Revised Statutes, is
 2 amended to read as follows:
 3     "321-11.5  Establishment of fees.  The department of health,
 4 by rules adopted pursuant to chapter 91, may establish reasonable
 5 fees for facilities seeking licensure or certification by the
 6 department for the issuance or renewal of licenses, permits,
 7 variances, and various certificates required by law or by the
 8 department's rules.  The fees may include the cost of related
 9 examinations, inspections, investigations, and reviews.  [All
10 fees paid and collected under this section and section 321-15
11 shall be deposited into the environmental health education fund
12 established under section 321-27.]"
13     SECTION 7.  Section 321-13, Hawaii Revised Statutes, is
14 amended by amending subsection (a) to read as follows:
15     "(a)  The department of health, with the approval of the
16 governor, may prescribe such rules as it deems necessary for the
17 public health or safety respecting:
18     (1)   The occupations or practices of laboratory directors,
19           laboratory technologists, laboratory supervisors,
20           laboratory technicians, tattoo artists, [sanitarians,
21           asbestos inspectors, asbestos management planners,
22           asbestos abatement project designers, lead inspectors,
23           lead risk assessors, lead abatement workers, lead

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 1           abatement supervisors, and lead abatement project
 2           designers;] and environmental health professionals;
 3     (2)   The health, education, training, experience, habits,
 4           qualifications, or character of persons to whom
 5           certificates of registration or permits for these
 6           occupations or practices may be issued;
 7     (3)   The health, habits, character, practices, standards, or
 8           conduct of persons holding these certificates or
 9           permits; or
10     (4)   The grounds or causes for revoking or suspending these
11           certificates or permits.
12 The rules shall have the force and effect of law."
13     SECTION 8.  Section 321-15, Hawaii Revised Statutes, is
14 amended by amending its title and subsection (a) to read as
15 follows:
16     "321-15 [Annual] Biennial registration; fees, failure to
17 register.(a)  Every person holding a license to practice any
18 occupation specified in section 321-13(a)(1) shall reregister
19 with the department of health[,] every other year in accordance
20 with the rules of the department, before February 1 [of each
21 year] except where superseded by federal law, and shall pay a
22 reregistration fee.  The failure, neglect, or refusal of any
23 person holding such a license to reregister or pay the

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 1 reregistration fee, after thirty days of delinquency, shall
 2 constitute a forfeiture of the person's license; provided that
 3 the license shall be restored upon written application therefor
 4 together with a payment of all delinquent fees and an additional
 5 late reregistration fee that may be established by the director
 6 of health.  All fees collected pursuant to this section shall be
 7 deposited into the environmental health education fund
 8 established under section 321-27."
 9     SECTION 9.  Section 321-27, Hawaii Revised Statutes, is
10 amended by amending subsections (a) and (b) to read as follows:
11     "(a)  There is established within the department of health an
12 environmental health education fund into which shall be deposited
13 all moneys collected from fees for permits, licenses,
14 inspections, various certificates, variances, investigations, and
15 reviews, pursuant to rules adopted for sections [321-11.5 and
16 321-15.] 321-11(1), (2), (3), (8), (9), (11), (14), (15), (17),
17 (18), (19), (20), and (23), 321-15, 321-375, and 321-381.
18     (b)  Moneys in the fund shall be expended by the department
19 for the purpose of enhancing the capacity of environmental health
20 programs to:
21     (1)   Improve public outreach efforts and consultations to
22           industries regulated;

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 1     (2)   Educate the public, staff, and industries regulated
 2           thereunder;
 3     (3)   Plan for future growth and expansion to meet emerging
 4           needs; and
 5     (4)   Provide training opportunities to ensure the
 6           maintenance of professional competence among
 7           environmental health staff and administrators.
 8     [Not more than $90,000 of the fund may be utilized during any
 9 fiscal year for fund administration, including the hiring of not
10 more than two full-time equivalent personnel, and the purchase of
11 office and electronic equipment.]"
12                              PART IV
13     SECTION 10.  Statutory material to be repealed is bracketed.
14 New statutory material is underscored.
15     SECTION 11.  This Act shall take effect upon its approval.