Water pollution; civil suits
Increases from $25,000 to $40,000 the fine for violating the water pollution law. Enacts provisions relating to muddy water. Allows citizen suits relating to water pollution.
HOUSE OF REPRESENTATIVES
TWENTY-SECOND LEGISLATURE, 2004
STATE OF HAWAII
A BILL FOR AN ACT
RELATING TO CLEAN WATER.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that Hawaii's coastal waters, beaches, coral reefs, and the marine life that thrives in these areas are threatened by pollution. A recent court ruling found that the State is obligated to protect its coastal waters. The court held that the State and Hawaii County had not fulfilled "their duties as public trustees by not protecting the adjacent coastal waters from pollution."
Sadly, muddy runoff pollution from development sites seems to be a perennial event. In 1996, rivers of mud filled Maalaea harbor on Maui, causing hundreds of thousands of dollars in damage. In 2000, a torrent of mud flowed off acres of land graded for a golf course just north of Kealakekua bay on the Big Island. The mud turned the class AA waters chocolate brown and smothered corals, irreparably damaging them. In 2001, illegal grubbing at Pilaa on Kauai led to huge quantities of mud flowing onto the beach and smothering the reef. Pilaa had one of the most pristine reefs and clearest ocean waters on the island. Similar incidents took place off Palauea on Maui and off Hulopoe on Lanai in 2002. In November 2003, runoff pollution from a construction site at Kaunala beach on the north shore of Oahu contributed to the muddy water surging into the famous surf spot Velzyland. Department of health inspectors found that the developer’s project exacerbated the runoff problem.
The legislature believes that, in an era of declining government intervention, community groups and other members of the public can assist the State in protecting Hawaii's environmental quality. Given limited resources, private parties can help the State enforce clean water requirements in the courts, just as they do for over a dozen federal statutes. Simply having a citizen suit provision in the law serves as a deterrent for noncompliance. Fears that frivolous lawsuits will tie up the system are without merit as no frivolous lawsuits have been filed under the citizen suit provision of Hawaii's clean air law. Providing a state citizen suit provision ensures that citizens will have access to the courts and that Hawaii’s environmental standards will be enforced.
The purpose of this Act is to:
(1) Clarify that developers must take all reasonable precautions to prevent mud from flowing into the ocean;
(2) Increase the penalty for clean water violations; and
(3) Codify the power of citizens to defend their right to clean water.
SECTION 2. Chapter 342D, Hawaii Revised Statutes, is amended by adding two new sections to be appropriately designated and to read as follows:
"§342D- Muddy water. Any person using, or paying someone who uses, mechanized equipment to move soil, grade, or grub shall take all reasonable precautions to ensure that sediment does not enter state waters. This requirement is in addition to existing requirements under this chapter, rules, and permits issued pursuant to this chapter, and shall not be interpreted to limit the fines to which violators are subject. Any income-producing farm smaller than twenty acres violating this section while engaged in bona fide agricultural activity shall not be fined more than $100 per violation.
§342D- Citizen suits. (a) Notwithstanding any other law to the contrary, any person may commence a civil action on that person's behalf against any person, including the State, counties, any agencies, and the director, who is alleged to have violated this chapter, including any rule adopted pursuant to this chapter, any term or condition of a permit, variance or agreement, or any order issued by the director.
(b) The circuit court shall have jurisdiction to:
(1) Enforce a statutory provision, rule, condition, or order;
(2) Order the director to perform an act or duty; and
(3) Apply any appropriate civil penalties.
(c) No action may be commenced if the director or the department has commenced and is diligently prosecuting a civil action to require compliance, but in any such action any person may intervene as a matter of right.
(d) In any action under this section, the director, if not a party to a proceeding, may intervene as a matter of right at any time in the proceeding.
(e) In issuing any final order in any action brought pursuant to this section, the court shall award costs of litigation, including reasonable attorney and expert witness fees, to the prevailing or substantially prevailing party. If a temporary restraining order or preliminary injunction is sought, the court may require the filing of a bond or equivalent security in accordance with the Hawaii rules of civil procedure.
(f) Nothing in this section shall restrict any right that any person may have under any constitutional provision, statute, or common law to seek enforcement of any provision or to seek any other relief.
(g) Moneys received as a result of any penalties imposed under subsection (b) shall be deposited into the environmental response revolving fund established by section 128D-2. The court shall have discretion to order that such civil penalties, in lieu of being deposited in the fund, be used in beneficial mitigation, education, or protection projects which enhance public health or the environment."
SECTION 3. Section 342D-30, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) Any person who violates this chapter, any rule, or any term or condition of a permit or variance issued pursuant to this chapter shall be fined not more than [
$25,000] $40,000 for each separate offense. Each day of each violation shall constitute a separate offense. Any action taken in court to impose or collect the penalty provided for in this section shall be considered a civil action. In determining the amount of a civil penalty, the court shall consider [ the]:
(1) The seriousness of the violation or violations[
(2) The economic benefit, if any, resulting from the violation[
(3) Any history of these violations[
(4) Any good-faith efforts to comply with the applicable requirements[
(5) The economic impact of the penalty on the violator[
,]; and [ any]
(6) Any other matters that justice may require.
It shall be presumed that the violator’s economic and financial conditions allow payment of the penalty, and the burden of proof of the contrary is on the violator."
SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 5. This Act shall take effect upon its approval.