Report Title:

DOH; Air Pollution Control; New Source Review

Description:

Requires the DOH to enforce its administrative rules relating to new source reviews as they existed on 12/30/02. Prohibits the adoption of rules that are not as stringent or more stringent than the rules that existed on 12/30/02. Applies retroactively to 12/30/02.

HOUSE OF REPRESENTATIVES

H.B. NO.

1693

TWENTY-SECOND LEGISLATURE, 2004

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to air pollution control.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. The legislature finds and declares that:

(1) The people of Hawaii have a vested interest in preserving and improving the State's air quality. For over twenty-five years, the federal Clean Air Act has required major new and modified sources of air pollution to undergo "new source review" in order to ensure that they do not adversely affect air quality;

(2) New source review has been a cornerstone of city, state, and national efforts to reduce air pollution from older industrial sources by requiring them to install the best available control technology when they undergo major modifications;

(3) On December 31, 2002, the Administrator of the United States Environmental Protection Agency promulgated regulations that substantially weaken the federal new source review program. These new regulations threaten not only the State's air quality but the health and safety of the people of Hawaii;

(4) The federal Clean Air Act protects the right of states to adopt air pollution control standards that are more stringent than federal requirements. Moreover, the new regulations provide that states may adopt permitting programs that are at least as stringent as the new federal revised base program; and

(5) The intent of this Act is to codify the State's new source review program as it existed on December 30, 2002, as the State's minimum air pollution control standards, in order to protect the islands' air quality and the health and safety of the people of Hawaii.

SECTION 2. Chapter 342B, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:

"PART     . NEW SOURCE REVIEW

§342B-A Adoption of less stringent rules. The director may not adopt new source review rules that are less stringent than the rules that existed on December 30, 2002. If a court of competent jurisdiction finds that the new source review rules adopted after December 30, 2002, are not as stringent than the rules that existed on December 30, 2002, then the court shall promptly enjoin the application of the rules that were adopted after December 30, 2002, in order to maintain the stringency of the rules that existed on December 30, 2002.

§342B-B Provisions relating to stationary sources. (a) The director may not amend any of the following provisions that existed on December 30, 2002, if their amendment would exempt, relax, or reduce the obligations of a stationary source as described in section 342B-C:

(1) The applicability determination for new source review;

(2) The definition of modification, major modification, routine maintenance, or repair or replacement;

(3) The calculation methodology, thresholds, or other procedures of new source review; and

(4) Any definitions or requirements of the new source review rules.

(b) The director may not amend an item enumerated in subsection (a) unless the amendment is more stringent than the new source review rules that existed on December 30, 2002.

§342B-C Obligations of stationary sources. As referred to in section 342B-B, the obligations of a stationary source include:

(1) Any requirements for obtaining a new source review or permit to construct, prior to the commencement of construction;

(2) Any requirements for utilizing best available control technology;

(3) Any requirements for conducting an air quality impact analysis;

(4) Any requirements for making recordkeeping, monitoring, and reporting representative, enforceable, and publicly accessible;

(5) Any requirements for regulating air pollutants covered by the new source review rules; and

(6) Any requirements for providing opportunities for public participation prior to the issuance of a permit to construct.

§342B-D Exceptions. Notwithstanding sections 342B-A to 342B-C to the contrary, the director may amend a rule if, based upon substantial evidence, the amended rule:

(1) Will replace an existing rule that caused a risk to public health or safety from exposure to a toxic material, a dangerous condition, or an infectious disease with a rule that provides greater protection to public health or safety;

(2) Will replace an existing rule that has been found to be unworkable, due to engineering or other technical problems, with a rule that is effective;

(3) Will replace an existing rule that otherwise will cause substantial hardship to a business, industry, or category of sources; provided the following criteria are met:

(A) The amendment is narrowly tailored to relieve the identified hardship;

(B) Other businesses, industries, or categories of sources provide equivalent reductions in emissions of air contaminants to offset any increase in emissions of air contaminants;

(C) All reductions in emissions of air contaminants are real, surplus, quantifiable, verifiable, enforceable, and timely.

For the purposes of this subparagraph, reductions are timely if they occur no more than three years prior to, and no more than three years following, the occurrence of the increase in emissions of air contaminants; and

(D) Information regarding the reductions in emissions of air contaminants is available to the public;

(4) Is needed to respond to an emergency or other sudden, unexpected occurrence that demands prompt action to prevent or mitigate loss of or damage to life, health, property, or essential services, and will not extend beyond the reasonably anticipated duration of the emergency or occurrence;

(5) Will not impair or impede continued maintenance of national ambient air quality standards or progress toward achieving the attainment of state ambient air quality standards;

(6) Will not exempt, relax, or reduce the obligation of any stationary source to obtain a permit or meet best available control technology requirements under the rules that existed on December 30, 2002.

This paragraph shall apply only to a source that constituted a major source under the rules that existed on December 30, 2002, and shall not apply to any individual best available control technology determination.

§342B-E Existing new source review program. For the purposes of this part, the department's "existing new source review program" is comprised of those new source review rules for both nonattainment and prevention of significant deterioration for new, modified, repaired, or replaced sources that:

(1) Have been adopted by the department on or prior to December 30, 2002; and

(2) Have been submitted to the United States Environmental Protection Agency by the department, for inclusion in the state implementation plan, and are pending approval or have been approved by the United States Environmental Protection Agency.

§342B-F Retroactive application. Upon its approval, this part shall apply retroactively to December 30, 2002."

SECTION 3. In codifying the new sections added by section 2 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

SECTION 4. This Act shall take effect upon its approval.

INTRODUCED BY:

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