PART I. HAWAII ENVIRONMENTAL RESPONSE LAW

 

Note

 

  Sections 128D-1 to128D-23 designated as Part I by L 1997, c 377, §3.

 

§128D-1  Definitions.  As used in thischapter, unless the context otherwise requires:

"Bona fide prospective purchaser"means a person (or a tenant of a person) who acquires ownership of a facilityafter October 1, 2009, and establishes each of the following by a preponderanceof the evidence:

(1)  All disposal of hazardous substances at thefacility occurred before the person acquired the facility;

(2)  The person carried out all appropriate inquirieswhen, on or before the date on which the person acquired the facility:

(A)  The person made all appropriate inquiriesinto the previous ownership and uses of the facility in accordance withgenerally accepted good commercial and customary standards and practices inaccordance with subparagraphs (B) and (C);

(B)  The standards and practices referred to in42 United States Code section 9601(35)(B)(ii) and (iv) and 40 Code of FederalRegulations part 312 are used unless the director requires otherwise by rulesadopted pursuant to chapter 91; and

(C)  In the case of property in residential useor other similar use at the time of purchase by a nongovernmental ornoncommercial entity, a facility inspection and title search that reveal nobasis for further investigation shall be considered to satisfy the requirementsof this paragraph;

(3)  The person provides all legally required noticeswith respect to the discovery or release of any hazardous substances at thefacility;

(4)  The person exercises appropriate care withrespect to hazardous substances found at the facility by taking reasonable steps to:

(A)  Stop any continuing release;

(B)  Prevent any threatened future release; and

(C)  Prevent or limit human, environmental, ornatural resource exposure to any previously released hazardous substance;

(5)  The person provides full cooperation, assistance,and access to persons who are authorized to conduct response actions or naturalresource restoration at a vessel or facility (including the cooperation andaccess necessary for the installation, integrity, operation, and maintenance ofany complete or partial response actions or natural resource restoration at thevessel or facility);

(6)  The person:

(A)  Is in compliance with any land userestrictions established or relied on in connection with the response action ata vessel or facility; and

(B)  Does not impede the effectiveness orintegrity of any institutional control employed at the vessel or facility inconnection with a response action;

(7)  The person complies with any request forinformation or administrative subpoena issued by the President of the UnitedStates under 42 United States Code chapter 103, by the director under chapter128D, or issued by any state or federal court; and

(8)  The person is not:

(A)  Potentially liable, or affiliated with anyother person who is potentially liable, for response costs at a facilitythrough:

(i)  Any direct or indirect familial relationship;or

(ii)  Any contractual, corporate, or financialrelationship (other than a contractual, corporate, or financial relationshipthat is created by the instruments by which title to the facility is conveyedor financed or by a contract for the sale of goods or services); or

(B)  The result of a reorganization of abusiness entity that was potentially liable.

"CERCLA" means the ComprehensiveEnvironmental Response, Compensation, and Liability Act of 1980, P.L. 96-510(42 U.S.C. §§9601-9675), as amended.

"Clean Water Act" means the FederalWater Pollution Control Act of 1972, P.L. 92-500 (33 U.S.C. §§1251-1387), asamended.

"Contractual relationship" meansrelationships involving land contracts, deeds or other instruments transferringtitle or possession.

"Department" means the department ofhealth.

"Director" means the director ofhealth.

"Environment" means any waters,including surface water, ground water, or drinking water supply, any landsurface or any subsurface strata, or any ambient air within the State of Hawaiior under the jurisdiction of the State.

"Facility" means any building,structure, installation, equipment, pipe or pipeline (including any pipe into asewer or publicly owned treatment works), well, pit, pond, lagoon, impoundment,ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft,or any site or area where a hazardous substance or pollutant or contaminant hasbeen deposited, stored, disposed of, or placed, or otherwise comes to belocated; but does not include any consumer product in consumer use.

"Federal on-scene coordinator" meansthe federal official predesignated by the United States EnvironmentalProtection Agency or the United States Coast Guard to coordinate and directfederal responses under subpart D, or the official designated by the leadagency to coordinate and direct removal under subpart E, of the NationalContingency Plan.

"Fund" means the environmentalresponse revolving fund.

"Hazardous substance" includes anysubstance designated pursuant to section 311(b)(2)(A) of the Clean Water Act;any element, compound, mixture, solution, or substance designated pursuant tosection 102 of CERCLA; any hazardous waste having the characteristicsidentified under or listed pursuant to section 3001 of the Solid Waste DisposalAct; any toxic pollutant listed under section 307(a) of the Clean Water Act;any hazardous air pollutant listed under section 112 of the Clean Air Act, asamended (42 U.S.C. §§7401-7626); any imminently hazardous chemical substance ormixture regulated under section 7 of the Toxic Substances Control Act, asamended (15 U.S.C. §§2601-2671), oil, trichloropropane, and any other substanceor pollutant or contaminant designated by rules adopted pursuant to thischapter.

In adopting rules, the director shall considerany substance or mixture of substances, including but not limited to feedstockmaterials, products, or wastes, which, because of their quantity,concentration, or physical, chemical, or infectious characteristics, may:

(1)  Cause or significantly contribute to an increasein serious irreversible or incapacitating reversible illness; or

(2)  Pose a substantial present or potential hazard tohuman health, to property, or to the environment when improperly stored,transported, released, or otherwise managed.

"National contingency plan" means thenational contingency plan published under section 311(c) of the Clean Water Actor revised pursuant to section 105 of CERCLA.

"Natural resources" means land, fish,wildlife, biota, air, water, ground water, drinking water supplies, and othersuch resources belonging to, managed by, held in trust by, appertaining to, orotherwise controlled by the State of Hawaii, any county, or by the UnitedStates to the extent that the latter are subject to state law.

"Oil" means oil of any kind or in anyform, including, but not limited to, petroleum, fuel oil, sludge, oil refuse,oil mixed with wastes, crude oil or any fraction or residue.

"Owner" or "operator"means:

(1)  In the case of a vessel, any person owning,operating, or chartering by demise the vessel;

(2)  In the case of an onshore facility or an offshorefacility, any person owning or operating the facility; and

(3)  In the case of any facility, title or control ofwhich was conveyed due to bankruptcy, foreclosure, tax delinquency,abandonment, or similar means to a unit of a state or local government, anyperson who owned, operated, or otherwise controlled activities at the facilityimmediately beforehand.

"Owner" or "operator" doesnot include a person who, without participating in the management of the vesselor facility, holds indicia of ownership primarily to protect its securityinterest in the vessel or facility.  Until such time as the department adoptsrules pertaining to lenders, the provisions of the Asset Conservation, LenderLiability and Deposit Insurance Protection Act of 1996 shall apply to theactions of lenders after July 1, 1997.

"Person" means any individual, firm,corporation, association, partnership, consortium, joint venture, commercialentity, state, county, commission, political subdivision of the State, or, tothe extent they are subject to this chapter, the United States or anyinterstate body.

"Pollutant or contaminant" means anyelement, substance, compound, or mixture, which after release into theenvironment and upon exposure, ingestion, inhalation, or assimilation into anyorganism either directly from the environment or indirectly by ingestionthrough food chains, will or may reasonably be anticipated to cause death,disease, behavioral abnormalities, cancer, genetic mutation, physiologicalmalfunctions (including malfunctions in reproduction) or physical deformations,in such organisms or their offspring.

"Release" means any spilling,leaking, pumping, pouring, emitting, emptying, discharging, injecting,escaping, leaching, dumping, or disposing of any hazardous substance orpollutant or contaminant into the environment, (including the abandonment ordiscarding of barrels, containers, and other closed receptacles containing anyhazardous substance or pollutant or contaminant); but excludes:

(1)  Any release which results in exposure of personssolely within a workplace, with respect to a claim which such exposed personsmay assert against their employer;

(2)  Emissions from the engine exhaust of a motorvehicle, rolling stock, aircraft, vessel, or pipeline pumping station engine;

(3)  Release of source, byproduct, or special nuclearmaterial from a nuclear incident, as those terms are defined in the Atomic EnergyAct of 1954 (42 U.S.C. §2011), if such release is subject to requirements withrespect to financial protection established by the Nuclear RegulatoryCommission under 42 U.S.C. §2210;

(4)  Any release resulting from the normal applicationof fertilizer;

(5)  Any release resulting from the legal applicationof a pesticide product registered under the Federal Insecticide, Fungicide, andRodenticide Act;

(6)  Releases from sewerage systems collecting andconducting primarily domestic wastewater; or

(7)  Any release permitted by any federal, state, orcounty permit or other legal authority.

"Remedy" or "remedialaction" means those actions consistent with permanent correction takeninstead of or in addition to removal actions in the event of a release or threatenedrelease of a hazardous substance or pollutant or contaminant into theenvironment, to prevent or minimize the release of hazardous substances so thatthey do not migrate to cause substantial danger to present or future publichealth or welfare or the environment.

(1)  The term includes, but is not limited to, suchactions at the location of the release as storage, confinement, perimeterprotection using dikes, trenches, or ditches, clay cover, neutralization,cleanup of released hazardous substances or pollutants or contaminants orassociated contaminated materials, recycling or reuse, diversion, destruction,segregation of reactive wastes, dredging or excavations, repair or replacementof leaking containers, collection of leachate and runoff, onsite treatment orincineration, provision of alternative water supplies, and any monitoringreasonably required to assure that such actions protect the public health orwelfare or the environment.

(2)  The term includes the costs of permanentrelocation of residents and businesses and community facilities where thedirector determines that, alone or in combination with other measures, suchrelocation is more cost-effective than and environmentally preferable to thetransportation, storage, treatment, destruction, or secure disposition offsiteof hazardous substances or pollutants or contaminants, or may otherwise benecessary to protect the public health or welfare.

(3)  The term does not include the offsite transportof hazardous substances or pollutants or contaminants, or the storage,treatment, destruction, or secure disposition offsite of such hazardoussubstances or pollutants or contaminants or contaminated materials unless thedirector determines that such actions:  are more cost-effective than other remedialactions; will create new capacity to manage hazardous substances in addition tothose located at the affected facility; or are necessary to protect publichealth or welfare or the environment from a present or potential risk which maybe created by further exposure to the continued presence of such hazardoussubstances or pollutants or contaminants.

"Remove" or "removalaction" means the cleanup of released hazardous substances or pollutantsor contaminants from the environment, such actions as may be necessary to takein the event of the threat of release of hazardous substances or pollutants orcontaminants into the environment, such actions as may be necessary to monitor,assess, and evaluate the release or threat of release of hazardous substances orpollutants or contaminants, the disposal of removed material, or the taking ofsuch other actions as may be necessary to prevent, minimize, or mitigate damageto the public health or welfare or to the environment, which may otherwiseresult from a release or threat of release.  The term includes, in addition,without being limited to, security fencing or other measures to limit access,provision of alternative water supplies, temporary evacuation and housing ofthreatened individuals not otherwise provided for, and any emergencyassistance.

"Respond" or "response"means remove, removal, remedy, or remedial action; and all such terms includegovernment enforcement activities related thereto.

"SARA" means the Superfund Amendmentsand Reauthorization Act of 1986, P.L. 99-499.

"State on-scene coordinator" meansthe state official designated by the department of health to coordinate anddirect responses under this chapter.

"Vessel" means every description ofwatercraft or other artificial contrivance used, or capable of being used, as ameans of transportation on water. [L 1988, c 148, pt of §2; am L 1990, c 298,pt of §18; am L 1991, c 280, §2; am L 1993, c 324, §1; am L 1997, c 377, §4; amL 2009, c 125, §2]