THE SENATE

S.B. NO.

1597

THIRTY-SECOND LEGISLATURE, 2023

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

relating TO THE HAWAII ENVIRONMENTAL PROTECTION AGENCY.

 

 

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

 


PART I

SECTION 1. The legislature finds that through its policies, laws, and programs, Hawaii has become a preeminent leader among the states in protecting our precious environment. However, despite these accomplishments, Hawaii is one of the few states in the nation that does not have a state-level environmental protection agency. The legislature believes that, if protecting the environment is a leading statewide concern, environmental permitting programs, regulatory functions, and policy functions should be concentrated within a single agency and given a director. This will ensure the proper funding of environmental programs, encourage the development of environmental policies, and provide a cabinet-level voice for environmental advocacy in the office of the governor.

The legislature notes that, currently, environmental management is subservient in many branches of the State's departments and agencies, and this leads to inefficiencies. For example, the responsibilities for water resource management are scattered among the environmental health administration and clean water branch of the department of health. Additionally, because the scope and mission of some departments are so broad, directors must prioritize their requests for resources. Inevitably, some programs and services outside a department's core mission are left behind. These programs and services may be a better fit in another department, where they can take a higher priority.

The legislature also notes that, because environmental permitting and regulatory functions are subservient to other missions and divided among various departments, entities like businesses, governmental bodies and agencies, and academic institutions often face long delays in obtaining permits or regulatory approval. To clarify environmentally-related subject matter jurisdiction and to make regulatory and permitting functions more efficient, many states have created unified environmental departments within their governments' organizational structures. The legislature recognizes that there is a constitutional limit on the number of agencies that can exist in the State's government and that Hawaii can only create one additional cabinet-level agency. However, the legislature believes that the protection of the environment and the creation of a strong, unified voice for environmental protection, are worthy of this allocation.

The legislature additionally finds that in 1984, the legislature adopted Senate Concurrent Resolution No. 135 and House Concurrent Resolution No. 78, requesting the legislative reference bureau to conduct a study on the feasibility of establishing a state environmental protection agency, department, or comparable body, to coordinate and address matters of environmental quality. In 1985, the legislative reference bureau released a study entitled "The Feasibility of Environmental Reorganization for Hawaii", which, in part, discussed the creation of a state department of environmental protection.

The legislature further finds that Act 293, Session Laws of Hawaii 1991 (Act 293), temporarily placed a department of environmental protection in the Hawaii Revised Statutes. However, the Act also provided for its repeal on July 1, 1992, if the legislature failed to enact a bill establishing the powers, duties, and other provisions of the department of environmental protection during the regular session of 1992. The department of environmental protection task force report, in response to Act 293, found that while there was consensus that a department of environmental protection should be established, the task force could not reach consensus on a strategy regarding the department's overall establishment. The legislature was not able to enact a law establishing the powers, duties, and other provisions of the department of environmental protection, and therefore Act 293 was repealed. However, the legislature continues to believe that a central authority should be created to manage the State's environmental issues.

Accordingly, the purpose of this Act is to:

(1) Create an environmental protection agency, as has been done in other states, to raise environmental policies to a cabinet-level agency within the state government; and

(2) Transfer the resources, duties, and responsibilities of certain environmental offices in the State to centralize and align environmental response within the Hawaii environmental protection agency.

PART II

SECTION 2. Chapter 26, Hawaii Revised Statutes, is amended by adding a new section to part I to be appropriately designated and to read as follows:

"26- Hawaii environmental protection agency. (a) The Hawaii environmental protection agency shall be headed by a single executive to be known as the director of environmental protection. The director shall appoint, without regard to chapter 76, a deputy director of environmental protection.

(b) The agency shall be responsible for exercising regulatory functions and coordinating responsibilities to manage the State's environment.

(c) The following responsibilities are transferred to, and placed under the administration of, the Hawaii environmental protection agency as established by this chapter:

(1) Environmental response law (chapter 128D);

(2) Hawaii pesticides law (chapter 149A);

(3) Solid waste (chapter 340A);

(4) Wastewater treatment personnel (chapter 340B);

(5) Safe drinking water (chapter 340E);

(6) Hawaii law for mandatory certification of public water system operators (chapter 340F);

(7) Environmental quality control (chapter 341);

(8) Air pollution control (chapter 342B);

(9) Water pollution (chapter 342D);

(10) Nonpoint source pollution management and control (chapter 342E);

(11) Integrated solid waste management (chapter 342G);

(12) Solid waste pollution (chapter 342H);

(13) Special wastes recycling (chapter 342I);

(14) Hazardous waste (chapter 342J);

(15) Underground storage tanks (chapter 342L);

(16) State environmental policy (chapter 344); and

(17) The uniform environmental covenants act (chapter 508C)."

SECTION 3. Section 26-4, Hawaii Revised Statutes, is amended to read as follows:

"26-4 Structure of government. Under the supervision of the governor, all executive and administrative offices, departments, and instrumentalities of the state government and their respective functions, powers, and duties shall be allocated among and within the following principal departments that are hereby established:

(1) Department of human resources development (Section 26‑5);

(2) Department of accounting and general services (Section 26-6);

(3) Department of the attorney general (Section 26-7);

(4) Department of budget and finance (Section 26-8);

(5) Department of commerce and consumer affairs (Section 26-9);

(6) Department of taxation (Section 26-10);

(7) University of Hawaii (Section 26-11);

(8) Department of education (Section 26-12);

(9) Department of health (Section 26-13);

(10) Department of human services (Section 26-14);

(11) Department of land and natural resources (Section 26‑15);

(12) Department of agriculture (Section 26-16);

(13) Department of Hawaiian home lands (Section 26-17);

(14) Department of business, economic development, and tourism (Section 26-18);

(15) Department of transportation (Section 26-19);

(16) Department of labor and industrial relations (Section 26-20);

(17) Department of defense (Section 26-21);

(18) Department of public safety (Section 26-14.6); [and]

(19) Department of law enforcement (Section 26-14.8)[.]; and

(20) Hawaii environmental protection agency (Section 26‑   )."

SECTION 4. (a) Within ninety days of the effective date of this Act, the governor shall designate a representative who shall facilitate the Hawaii environmental protection agency's orderly succession to the jurisdiction, powers, functions, rights, benefits, obligations, assets, liabilities, funds, accounts, contracts, and all other things currently held, used, incurred, or performed by the department of agriculture, or its chairperson and staff; and department of health, or its director and staff, in administering and exercising the authority and fulfilling the responsibilities authorized or conferred upon these entities by the chapters transferred in section 2 of this Act.

(b) Within one hundred eighty days of the effective date of this Act, the governor shall appoint a director of environmental protection.

(c) To facilitate the Hawaii environmental protection agency's timely assumption of the agency's authority and responsibilities, the department of agriculture, department of health, department of accounting and general services, department of human resources development, state procurement office, and any other state department or agency shall, if requested by the Hawaii environmental protection agency, enter into a memorandum of understanding with the Hawaii environmental protection agency to:

(1) Provide administrative support services for the agency pending the transfer of employees to the Hawaii environmental protection agency;

(2) Develop a policy and set of robust procurement procedures that foster accountability, transparency, and oversight of contracts, including compliance with federal procurement requirements;

(3) Assist the Hawaii environmental protection agency with the organization of its human resources development functions, including establishing:

(A) A human resources office; and

(B) The Hawaii environmental protection agency's civil service and civil service positions; and the classification system; merit appeals board; recruitment system; performance appraisal system; and administrative rules, policies, standards and procedures, including internal complaint procedures, adopted to support its civil service;

(4) Assist the Hawaii environmental protection agency in establishing its accounting, budgeting, fund management, and communication and electronic information systems, and creating appropriate interfaces between the agency's accounting, budgeting, fund management, communication, and electronic information systems, and those of other departments and state agencies;

(5) Assist the Hawaii environmental protection agency in identifying the plans and reports that departments and agencies are required to prepare for the governor, legislature, or other state department or agency; determining whether the plans and reports have been prepared and will be transferred to the agency on the transfer completion date; and preparing the plans and reports for the Hawaii environmental protection agency, if they do not exist; and

(6) Expeditiously transfer to, or otherwise facilitate the Hawaii environmental protection agency's acquisition or assumption of, all of the powers, functions, rights, benefits, obligations, assets, funds, accounts, contracts and other things held, used, incurred, and performed by other departments and agencies and transferred to the agency by section 26-    (c), Hawaii Revised Statutes.

(d) As soon as feasible, the Hawaii environmental protection agency, with the concurrence of the chairperson of the board of agriculture, director of health, and governor, shall establish the transfer completion date, which shall be no later than December 31, 2025, and shall publish notice of the transfer completion date by:

(1) Publishing the notice in a daily publication of statewide circulation pursuant to section 1-28.5, Hawaii Revised Statutes;

(2) Posting a copy of the notice on an electronic calendar on a website maintained by the State; and

(3) Providing a copy of the notice to the head of every other state department.

SECTION 5. No more than ninety days after the transfer completion date, all appropriations, records, equipment, machines, files, supplies, contracts, books, papers, documents, maps, and other personal property heretofore made, used, acquired, or held by the department of agriculture and department of health relating to the functions transferred to the Hawaii environmental protection agency shall be transferred with the functions to which they relate.

SECTION 6. (a) All rights, powers, functions, and duties of the department of agriculture and department of health that are assigned to the Hawaii environmental protection agency by section 26‑ (c) are transferred to the Hawaii environmental protection agency.

(b) All employees who occupy civil service positions and whose functions are transferred to the Hawaii environmental protection agency by this Act shall retain their civil service status, whether permanent or temporary. Employees shall be transferred without any loss of salary; seniority (except as prescribed by applicable collective bargaining agreements); retention points; prior service credit; any vacation and sick leave credits previously earned; and other rights, benefits, and privileges, in accordance with state personnel laws and this Act; provided that the employees possess the minimum qualifications and public employment requirements for the class or position to which transferred or appointed; provided further that subsequent changes in status may be made pursuant to applicable civil service and compensation laws.

(c) Any employee who, prior to this Act, is exempt from civil service and is transferred as a consequence of this Act may retain the employee's exempt status, but shall not be appointed to a civil service position as a consequence of this Act. An exempt employee who is transferred by this Act shall not suffer any loss of prior service credit, vacation or sick leave credits previously earned, or other employee benefits or privileges as a consequence of this Act; provided that the employees possess legal and public employment requirements for the position to which transferred or appointed; provided further that subsequent changes in status may be made pursuant to applicable employment and compensation laws. The director of environmental protection may prescribe the duties and qualifications of these employees and fix their salaries without regard to chapter 76, Hawaii Revised Statutes.

PART III

SECTION 7. Section 194-2, Hawaii Revised Statutes, is amended by amending subsections (a) and (b) to read as follows:

"(a) There is established the invasive species council for the special purpose of providing policy level direction, coordination, and planning among state departments, federal agencies, and international and local initiatives for the control and eradication of harmful invasive species infestations throughout the State and for preventing the introduction of other invasive species that may be potentially harmful. The council shall:

(1) Maintain a broad overview of the invasive species problem in the State;

(2) Advise, consult, and coordinate invasive species‑related efforts with and between the Hawaii environmental protection agency and the departments of agriculture, land and natural resources, health, and transportation, as well as state, federal, international, and privately organized programs and policies;

(3) Identify and prioritize each lead agency's organizational and resource shortfalls with respect to invasive species;

(4) After consulting with appropriate state agencies, create and implement a plan that includes the prevention, early detection, rapid response, control, enforcement, and education of the public with respect to invasive species, as well as fashion a mission statement articulating the State's position against invasive species; provided that the appropriate state agencies shall collaborate with the counties and communities to develop and implement a systematic approach to reduce and control coqui frog infestations on public lands that are near or adjacent to communities, and shall provide annual reports on the progress made in achieving this objective;

(5) Coordinate and promote the State's position with respect to federal issues, including:

(A) Quarantine preemption;

(B) International trade agreements that ignore the problem of invasive species in Hawaii;

(C) First class mail inspection prohibition;

(D) Whether quarantine of domestic pests arriving from the mainland should be provided by the federal government;

(E) Coordinating efforts with federal agencies to maximize resources and reduce or eliminate system gaps and leaks, including deputizing the United States Department of Agriculture's plant protection and quarantine inspectors to enforce Hawaii's laws;

(F) Promoting the amendment of federal laws as necessary, including the Lacey Act Amendments of 1981, Title 16 United States Code sections 3371‑3378; Public Law 97-79, and laws related to inspection of domestic airline passengers, baggage, and cargo; and

(G) Coordinating efforts and issues with the federal Invasive Species Council and its National Invasive Species Management Plan;

(6) Identify and record all invasive species present in the State;

(7) Designate the Hawaii environmental protection agency or department of agriculture, health, or land and natural resources as the lead agency for each function of invasive species control, including prevention, rapid response, eradication, enforcement, and education;

(8) Identify all state, federal, and other moneys expended for the purposes of the invasive species problem in the State;

(9) Identify all federal and private funds available to the State to fight invasive species and advise and assist state departments to acquire these funds;

(10) Advise the governor and legislature on budgetary and other issues regarding invasive species;

(11) Provide annual reports on budgetary and other related issues to the legislature twenty days prior to each regular session;

(12) Include and coordinate with the counties in the fight against invasive species to increase resources and funding and to address county-sponsored activities that involve invasive species;

(13) Review state agency mandates and commercial interests that sometimes call for the maintenance of potentially destructive alien species as resources for sport hunting, aesthetic resources, or other values;

(14) Review the structure of fines and penalties to ensure maximum deterrence for invasive species-related crimes;

(15) Suggest appropriate legislation to improve the State's administration of invasive species programs and policies;

(16) Incorporate and expand upon the department of agriculture's weed risk assessment protocol to the extent appropriate for the council's invasive species control and eradication efforts; and

(17) Perform any other function necessary to effectuate the purposes of this chapter.

(b) The council shall be placed within the [department of land and natural resources] agency for administrative purposes only and shall be composed of:

(1) The president of the University of Hawaii, or the president's designated representative;

(2) The director, or the director's designated representative, of each of the following departments[:] or agencies:

(A) Business, economic development, and tourism;

(B) Health; [and]

(C) Transportation; and

(D) Environmental protection; and

(3) The chairperson, or the chairperson's designated representative, of each of the following departments:

(A) Agriculture; and

(B) Land and natural resources."

SECTION 8. Section 344-2, Hawaii Revised Statutes, is amended by amending the definition of "agency" to read as follows:

""Agency" means any agency, department, office, board, or commission of the State or county government that is a part of the executive branch of that government."

PART IV

SECTION 9. Chapter 149A, Hawaii Revised Statutes, is amended by:

(1) Substituting the phrase "Hawaii environmental protection agency," or a similar term, wherever the phrase "department of agriculture", or a similar term, appears, as the context requires; and

(2) Substituting the phrase "director of environmental protection", or a similar term, wherever the term "chairperson of the board of agriculture", or a similar term, appears, as the context requires.

SECTION 10. (a) The department of agriculture shall be responsible for all obligations incurred by the department in connection with the department's exercise of the authority and performance of the duties and responsibilities conferred upon it and the chairperson of the board of agriculture by chapter 149A, Hawaii Revised Statutes, until the time that the obligations, including any accounts payable, accrued paid time off, debt, capital leases, and other obligations incurred before the transfer completion date, have been assumed by the Hawaii environmental protection agency, which shall not occur prior to the transfer completion date.

(b) All collective bargaining disputes or claims against the department of agriculture grounded in an act or omission, or an event that occurred prior to the transfer completion date, shall remain the responsibility of the department of agriculture.

(c) All liabilities arising out of the Hawaii environmental protection agency's exercise of the authority and performance of the duties and responsibilities conferred upon it and its director by chapter 149A, Hawaii Revised Statutes, after the transfer completion date shall be the responsibility of the Hawaii environmental protection agency.

(d) The assumption by the Hawaii environmental protection agency of any bonds, notes, or other obligations of the department of agriculture shall be subject to the terms and provisions of any certificate, indenture, or resolution securing those bonds, notes, or other obligations.

(e) On the transfer completion date, the Hawaii environmental protection agency shall assume responsibility for all rights, duties, penalties, and proceedings of the department of agriculture pursuant to chapter 149A, Hawaii Revised Statutes, as transferred by this Act.

SECTION 11. All rules, policies, procedures, guidelines, and other materials adopted or developed by the department of agriculture to implement provisions of the Hawaii Revised Statutes that are reenacted or made applicable to the Hawaii environmental protection agency by this Act shall remain in full force and effect on and after the transfer completion date established pursuant to section 4 of this Act, until amended or repealed by the Hawaii environmental protection agency pursuant to chapter 91, Hawaii Revised Statutes. In the interim, every reference to the department of agriculture, board of agriculture, or chairperson of the board of agriculture in those rules, policies, procedures, guidelines, and other materials, is amended to refer to the Hawaii environmental protection agency or director of environmental protection, as appropriate.

SECTION 12. All deeds, executive orders, leases, contracts, loans, agreements, permits, or other documents executed or entered into by or on behalf of the department of agriculture, pursuant to the provisions of the Hawaii Revised Statutes, that are reenacted or made applicable to the Hawaii environmental protection agency by this Act shall remain in full force and effect. On the transfer completion date established pursuant to section 4 of this Act, every reference to the department of agriculture or board of agriculture in those deeds, executive orders, leases, contracts, loans, agreements, permits, or other documents shall be construed as a reference to the Hawaii environmental protection agency.

PART V

SECTION 13. Chapter 341, Hawaii Revised Statutes, is amended by:

(1) Substituting the phrase "Hawaii environmental protection agency," or a similar term, wherever the phrase "office of planning and sustainable development", or a similar term, appears, as the context requires; and

(2) Substituting the phrase "director of environmental protection", or a similar term, wherever the term "director of the office of planning and sustainable development", or a similar term, appears, as the context requires.

PART VI

SECTION 14. Chapters 128D, 340A, 340B, 340E, 340F, 342B, 342D, 342E, 342G, 342H, 342I, 342J, 342L, and 508C, Hawaii Revised Statutes, are amended by:

(1) Substituting the phrase "Hawaii environmental protection agency," or a similar term, wherever the phrase "department of health", or a similar term, appears, as the context requires; and

(2) Substituting the phrase "director of environmental protection", or a similar term, wherever the term "director of health", or a similar term, appears, as the context requires.

SECTION 15. (a) The department of health shall be responsible for all obligations incurred by the department in connection with the department's exercise of the authority and performance of the duties and responsibilities conferred upon it and its director by chapters 128D, 340A, 340B, 340E, 340F, 342B, 342D, 342E, 342G, 342H, 342I, 342J, 342L, and 508C, Hawaii Revised Statutes, until the time that the obligations, including any accounts payable, accrued paid time off, debt, capital leases, and other obligations incurred before the transfer completion date, have been assumed by the Hawaii environmental protection agency, which shall not occur prior to the transfer completion date.

(b) All collective bargaining disputes or claims against the department of health grounded in an act or omission, or an event that occurred prior to the transfer completion date, shall remain the responsibility of the department of health.

(c) All liabilities arising out of the Hawaii environmental protection agency's exercise of the authority and performance of the duties and responsibilities conferred upon it and its director by chapters 128D, 340A, 340B, 340E, 340F, 342B, 342D, 342E, 342G, 342H, 342I, 342J, 342L, and 508C, Hawaii Revised Statutes, after the transfer completion date shall be the responsibility of the Hawaii environmental protection agency.

(d) The assumption by the Hawaii environmental protection agency of any bonds, notes, or other obligations of the department of health shall be subject to the terms and provisions of any certificate, indenture, or resolution securing those bonds, notes, or other obligations.

(e) On the transfer completion date, the Hawaii environmental protection agency shall assume responsibility for all rights, duties, penalties, and proceedings of the department of health pursuant to chapters 128D, 340A, 340B, 340E, 340F, 342B, 342D, 342E, 342G, 342H, 342I, 342J, 342L, and 508C, Hawaii Revised Statutes, as transferred by this Act.

SECTION 16. All rules, policies, procedures, guidelines, and other materials adopted or developed by the department of health to implement provisions of the Hawaii Revised Statutes that are reenacted or made applicable to the Hawaii environmental protection agency by this Act shall remain in full force and effect on and after the transfer completion date established pursuant to section 6 of this Act, until amended or repealed by the Hawaii environmental protection agency pursuant to chapter 91, Hawaii Revised Statutes. In the interim, every reference to the department of health and director of health in those rules, policies, procedures, guidelines, and other materials, is amended to refer to the Hawaii environmental protection agency or director of environmental protection, as appropriate.

SECTION 17. All deeds, executive orders, leases, contracts, loans, agreements, permits, or other documents executed or entered into by or on behalf of the department of health, pursuant to the provisions of the Hawaii Revised Statutes, that are reenacted or made applicable to the Hawaii environmental protection agency by this Act shall remain in full force and effect. On the transfer completion date established pursuant to section 6 of this Act, every reference to the department of health in those deeds, executive orders, leases, contracts, loans, agreements, permits, or other documents shall be construed as a reference to the Hawaii environmental protection agency.

PART VII

SECTION 18. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 19. 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 the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 20. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 21. This Act shall take effect upon its approval.

 

INTRODUCED BY:

_____________________________

 

 


 


 

Report Title:

HDOA; DOH; Hawaii Environmental Protection Agency; Transfer of Functions

 

Description:

Establishes the Hawaii Environmental Protection Agency. Transfers jurisdiction of certain functions and employees of the Department of Agriculture and Department of Health to the Hawaii Environmental Protection Agency.

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.