Report Title:

Water Pollution; Passenger Vessels

Description:

Establishes the commercial passenger vessel environmental compliance program to monitor and regulate discharges from commercial passenger vessels into State waters. (HB2190 HD1)

HOUSE OF REPRESENTATIVES

H.B. NO.

2190

TWENTY-SECOND LEGISLATURE, 2004

H.D. 1

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to environmental compliance.

 

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

SECTION 1. The condition of the marine waters and air surrounding Hawaii is critical not only to our environment, society, culture, and public health, but also to our economy, including the ocean-related visitor industry, which is worth an estimated $800,000,000 per year. Cruise ships generate tremendous amounts of pollutants, and with the recent rapid expansion of the cruise industry in Hawaii, the risk of accidental and intentional pollution increases. Therefore, the legislature finds that apart from and in addition to any controls that may exist under other laws, state controls on pollution from commercial passenger vessels are necessary and appropriate.

The legislature also finds and declares that the protection and enhancement of the quality of the marine waters of the State and federally protected marine areas require that discharges from commercial passenger vessels into such waters be prohibited and that a system for independent verification and monitoring of environmental compliance be established.

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

"PART . COMMERCIAL PASSENGER VESSEL

ENVIRONMENTAL COMPLIANCE PROGRAM

§342D-A Definitions. As used in this part:

"Agent for service of process" means an agent upon whom process, notice, or demand required or permitted by law to be served upon the owner or operator may be served.

"Commercial passenger vessel":

(1) Means a vessel that carries passengers for hire; but

(2) Does not include a vessel:

(A) That does not provide overnight accommodations for at least one hundred passengers for hire, determined with reference to the number of lower berths; or

(B) Operated by the United States or a foreign government.

"Department" means the department of health.

"Discharge" means any release of liquids or solids, however caused, from a commercial passenger vessel and includes any escape, disposal, spilling, leaking, pumping, emitting or emptying, but does not include a discharge of sewage as the term is used in section 312 of the Clean Water Act (33 U.S.C. 1322).

"Federally protected marine areas" include the Hawaiian Islands Humpback Whale National Marine Sanctuary and any other sanctuary, reserve, refuge, or other marine area protected by federal law.

"Graywater" means drainage from dishwasher, shower, laundry, bath, and washbasin drains.

"Hazardous waste" means a solid waste, or combination of solid wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may:

(1) Cause or significantly contribute to an increase in mortality or an increase in a serious irreversible or incapacitating reversible illness; or

(2) Pose a substantial existing or potential hazard to human health or the environment when improperly treated, stored, transported, disposed of, or otherwise managed.

"Hazardous waste" does not include sewage as the term is used in section 312 of the federal Clean Water Act (33 U.S.C. 1322).

"Marine waters of the State" means all ocean waters within the boundaries of the State.

"Medical waste" means wastes generated in the diagnosis, treatment, or immunization of human beings or animals.

"Offloading" means the removal of a hazardous substance, hazardous waste, or nonhazardous solid waste from a commercial passenger vessel onto or into a controlled storage, processing or disposal facility, or treatment works.

"Oily bilgewater" means bilgewater that contains used lubrication oils, oil sludge and slops, fuel and oil sludge, used oil, used fuel and fuel filters, and oily waste.

"Passengers for hire" means vessel passengers for whom consideration is contributed as a condition of carriage on the vessel, whether directly or indirectly flowing to the owner, charterer, operator, agent, or any other person having an interest in the vessel.

"Solid waste" means garbage, refuse, and other discarded materials, including solid, liquid, semisolid, or contained gaseous materials resulting from industrial, commercial, mining, and agricultural operations, sludge from waste treatment plants and water supply treatment plants, and residues from air pollution control facilities and community activities, but does not include solid or dissolved materials in domestic sewage or other substances in water sources such as silt, dissolved or suspended solids in industrial waste water effluents, dissolved materials in irrigation return flows, or other common water pollutants, or source, special nuclear, or by-product material as defined by the federal Atomic Energy Act of 1954, as amended (68 Stat. 923). "Solid waste" does not include sewage as the term is used in section 312 of the federal Clean Water Act (33 U.S.C. 1322).

"Vessel" means any form or manner of watercraft, other than a seaplane on the water, whether or not capable of self-propulsion.

§342D-B Commercial passenger vessel environmental compliance program; established. There is established the commercial passenger vessel environmental compliance program to:

(1) Prohibit vessel discharges;

(2) Provide independent verification of environmental compliance; and

(3) Allow the department to monitor discharges from commercial passenger vessels through a system of registration, information gathering, record keeping, reporting, and inspections.

The department may adopt rules under chapter 91 to carry out the purposes of this chapter.

§342D-C Registration requirements. (a) For each calendar year in which the owner or operator of a commercial passenger vessel intends to operate, or cause or allow to be operated, the vessel in the marine waters of the State, the owner or operator of the vessel shall register with the department. The registration shall be completed before the time any commercial passenger vessel of the owner or operator enters the marine waters of the State in that calendar year. The registration shall include the following information:

(1) The vessel owner's business name and, if different, the vessel operator's business name for each commercial passenger vessel of the owner or operator that is scheduled to be in the marine waters of the State during the calendar year;

(2) The postal address, electronic-mail address, telephone number, and facsimile number for the principal place of each business identified under paragraph (1);

(3) The name and address of an agent for service of process for each business identified under paragraph (1); provided that the owner and operator shall continuously maintain a designated agent for service of process whenever a commercial passenger vessel of the owner or operator is in the marine waters of the State, and the agent shall be an individual resident of this State, a domestic corporation, or a foreign corporation having a place of business in and authorized to do business in the State;

(4) The name or call sign, port of registry, passenger and crew capacity for each of the owner's or operator's vessels that is scheduled to either call upon a port in the State or otherwise to be in the marine waters of the State during the calendar year and after the date of registration; and

(5) The description of all waste treatment systems for each vessel identified under paragraph (4), including system type, design, and operation, location of all discharge pipes and valves, and number and capacity of all storage areas and holding tanks.

(b) Registration under subsection (a) shall be executed under oath by the owner or operator, or the owner or operator's designated representative.

(c) Upon the request of the department, the registrant shall submit registration information required under this section electronically in a data format approved by the department.

§342D-D Prohibited discharges. (a) If the appropriate federal agencies approve an application made pursuant to section 342D-H(a), or if the department determines that an application is not required and subsequently prohibits the discharge of graywater, oily bilgewater, solid waste, hazardous waste, or medical waste from a commercial passenger vessel, then a person shall not discharge or permit the discharge of graywater, oily bilgewater, solid waste, hazardous waste, or medical waste from a commercial passenger vessel into the marine waters of the State.

(b) If the department determines that:

(1) Federal approval is necessary to prohibit discharges and the department obtains authority to prohibit discharges in the marine waters of the State; or

(2) An application is not required and the department subsequently prohibits the discharge of graywater, oily bilgewater, solid waste, hazardous waste, or medical waste from a commercial passenger vessel,

the department shall serve notice to each owner or operator of a commercial passenger vessel operating in the marine waters of the State declaring the prohibition, the date upon which the prohibition takes effect, and any other information the department deems appropriate.

(c) Any person that allows a discharge prohibited by this section shall be in violation of this part and shall be subject to the penalties in section 342D-30.

(d) This section shall not apply to discharges made for the purpose of securing the safety of the commercial passenger vessel or saving life at sea if all reasonable precautions have been taken for the purpose of preventing or minimizing the discharge.

§342D-E Information gathering, record keeping, and reporting requirements. (a) The owner or operator of a commercial passenger vessel shall install and maintain tamper-proof automated data collection equipment approved by the department to record the dates, times, volumes or flow rates, and locations of any discharges into the marine waters of the State and shall provide copies of the records to the department upon request. The owner or operator shall maintain the records for no less than three years after the date the information in the records was gathered.

(b) Until the appropriate federal agencies approve an application made pursuant to section 342D-H(a), or the department determines that an application to prohibit discharges from commercial passenger vessels is not required, the following shall apply:

(1) While a commercial passenger vessel is present in the marine waters of the State, the owner or operator of the vessel shall collect routine samples of the vessel's discharge that is being released into the marine waters of the State, according to a sampling schedule and procedure approved by the department;

(2) While a commercial passenger vessel is present in the marine waters of the State, the department, or an independent contractor retained by the department, may collect additional samples of the vessel's discharge that is being released into the marine waters of the State; and

(3) The owner or operator vessel shall have the samples collected under paragraph (1) tested by an independent laboratory approved by the department and according to a testing procedure approved by the department, for the purpose of ensuring compliance with all pollution limitations or standards under state or federal law, including but not limited to state water quality standards governing pollution at the point of discharge.

(c) An owner or operator of a commercial passenger vessel who becomes aware of a discharge in violation or potential violation of section 342D-D shall immediately, but no later than twenty-four hours after the discharge, report the discharge to the department. The owner or operator shall include all the following information in the report:

(1) Date of the release;

(2) Time of the release;

(3) Location of the release;

(4) Volume of the release;

(5) Source of the release; and

(6) Remedial actions taken to prevent future releases.

(d) If the owner or operator of a commercial passenger vessel operating in the marine waters of the State is required by the laws of the United States to file a report or provide notice of a discharge or offloading of a hazardous waste or hazardous substance that was generated, discharged, or offloaded while the vessel was operating in the marine waters of the State, the owner or operator shall submit to the department a copy of the report or notice within ten days after having provided the report or notice to the federal government.

(e) Before commencing the operation of a commercial passenger vessel in the marine waters of the State, the owner or operator of the vessel shall provide to the department a plan that describes the vessel's policies and procedures for:

(1) Offloading in the State or disposing into the marine waters of the State of nonhazardous solid waste; and

(2) Offloading of hazardous waste or a hazardous substance from the vessel while it is operating in the marine waters of the State to the extent that the offloading is not covered by subsection (d).

(f) The owner or operator of a commercial passenger vessel shall pay for all record keeping, reporting, sampling, and testing of samples under this section.

(g) Upon the request of the department, the information required under this section shall be submitted electronically in a data format approved by the department.

(h) Any person who allows a discharge prohibited by this section shall be in violation of this part and shall be subject to the penalties in section 342D-30.

§342D-F Inspections. While a commercial passenger vessel is present in the marine waters of the State, the owner or operator of a commercial passenger vessel shall allow the department access to the vessel for the purpose of ensuring compliance with this part, investigating actual or suspected violations, or taking samples or verifying the data collection and sampling procedures under section 342D-E. The department shall develop and implement an inspection regime sufficient to ensure full compliance with this part. This regime, at a minimum, shall include:

(1) Examination of any records and procedures pertinent to environmental compliance; and

(2) Scheduled and unannounced inspections of any aspect of commercial passenger vessel operations, procedures, equipment, or discharges pertinent to ensuring compliance with this part.

The regime may also include and make appropriate allowances for alternative means of ensuring compliance approved by the department, including systems of monitoring and reporting by independent onboard observers.

§342D-G Memorandum of understanding; recognition program. (a) Nothing contained in this part shall prevent the State from entering into voluntary agreements with any owners or operators of commercial passenger vessels, or their representatives, for the purpose of:

(1) Controlling pollution outside the marine waters of the State; or

(2) Adopting pollution controls more stringent than those contained in this part.

(b) The department may engage in efforts to encourage and recognize superior environmental protection efforts made by the owners or operators of commercial passenger vessels that exceed the requirements established by law.

§342D-H Miscellaneous. (a) The department shall determine whether it is necessary for the State to apply to the federal government for its authorization to prohibit the release of discharge into the marine waters of the State. If the department determines that application is necessary, it shall apply to the appropriate federal agencies, as determined by the department, to authorize the State to prohibit the release of graywater, oily bilgewater, solid waste, hazardous waste, or medical waste from commercial passenger vessels into the marine waters of the State.

(b) The department shall request the appropriate federal agencies, as determined by the department, to prohibit the discharge of the wastes described in section 342D-D into all federally protected marine areas.

(c) This part shall not apply to a commercial passenger vessel that operates in the marine waters of the State solely in innocent passage. For purposes of this section, a vessel is engaged in innocent passage if its operation in marine waters of the State, regardless of whether the vessel is a United States or foreign flag vessel, would constitute innocent passage under:

(1) The Convention on the Territorial Sea and the Contiguous Zone, April 29, 1958, 15 U.S.T. 1606; or

(2) The United Nations Convention on the Law of the Sea 1982, December 10, 1982, United Nations Publication No. E.83.V.5, 21 I.L.M. 1261 (1982), were the vessel a foreign-flag vessel."

SECTION 3. The legislature finds that state legislation is needed to regulate ballast water discharges and air pollution from commercial passenger vessels. The legislative reference bureau shall conduct research of existing laws and legislative proposals of other jurisdictions to develop an appropriate framework for controlling ballast water discharges and air pollution from commercial passenger vessels. The legislative reference bureau shall submit a report, including any proposed legislation, to the legislature no later than twenty days before the convening of the regular session of 2005.

SECTION 4. If any provision of this Act or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 5. 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 6. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 7. This Act shall take effect on January 1, 2050.