Prohibits the Department of Health from adopting any rule related to the disposition of waste-derived fertilizers (including 40 C.F.R. §266.20) that is less stringent than the

Resource Conservation and Recovery Act of 1976 and the Hazardous and Solid Waste Amendments of 1984.

A BILL FOR AN ACT

SECTION 1. The legislature finds that the proper handling and disposal of hazardous waste continues to be a legislative priority and of great concern to the people of Hawaii. Hazardous waste is generated by many sources, including the military, coal-fired plants, nuclear fuel processors, foundries, galvanizers, and mining operations. The waste may take many forms, including lead, arsenic, beryllium, cadmium, mercury, dioxin, PCB, uranium and a plethora of other heavy metals.

Under federal law (40 C.F.R. §266.20), hazardous waste may be disposed of directly on land or incorporated into fertilizer as a "waste-derived" product. The land treatment method is subject to full federal regulation and requires monitoring of the hazardous waste to its final disposition. But there is no similar requirement for waste-derived fertilizer. In other words, waste treated fertilizer can conceivably be used on a farm, golf course, a home lawn or garden, or even a school yard or playground, without the user's knowledge.

The danger in disposing waste contaminants in fertilizer is that fertilizer is often thought to be a benign gardening additive. Thus, consumers would inevitably fail to handle the contaminated fertilizer in a manner consistent with its potential toxicity. Additionally, fertilizers are generally over-applied, stored within the reach of children, and handled without concern for dermal contact or inhalation. These factors place consumers, especially children and developing fetuses at high levels of unacceptable risks that could have devastating and long-term consequences.

Presently, the state department of health is in a position to prevent the contamination caused by waste-derived fertilizers. Since 40 C.F.R. §266.20 (which allows waste contaminated fertilizer) is less stringent than the Resource Conservation and Recovery Act of 1976 and the Hazardous and Solid Waste Amendments of 1984, under federal law, the states are not required to adopt this federal regulation. In other words, the department of health has the discretion to reject 40 C.F.R. §266.20 to prohibit the sale and use of waste contaminated fertilizers in Hawaii. But the department of health has chosen to adopt 40 C.F.R. §266.20 and expose the State to the inherent dangers of contaminated fertilizer.

The purpose of this Act is to prohibit the department of health from adopting any rule related to the disposition of waste-derived fertilizers (including 40 C.F.R. §266.20) that is less stringent than the Resource Conservation and Recovery Act of 1976 and the Hazardous and Solid Waste Amendments of 1984 to protect Hawaii's people and environment from the hazards of waste contaminated fertilizers.

SECTION 2. Section 342J-4, Hawaii Revised Statutes, is amended to read as follows:

"§342J-4 Powers; rulemaking; appointment of hearings officers. (a) The director may [make, amend, and repeal state] adopt rules [which govern the management of] to manage hazardous waste and [which] control and prohibit hazardous waste pollution[.]; provided that, notwithstanding any other law to the contrary, the director shall not adopt any rule related to the disposition of waste-derived fertilizers (including 40 C.F.R. §266.20) that is less stringent than the federal Resource Conservation and Recovery Act of 1976 and the Hazardous and Solid Waste Amendments of 1984.

(b) All rules shall be adopted pursuant to chapter 91. Any person heard at the public hearing shall be given written notice of the action taken by the department with respect to the rules.

[(b)] (c) In addition to other specific powers provided in this chapter, the director may appoint without regard to chapter 76, hearings officers to conduct public participation activities including public hearings and public informational meetings."

SECTION 3. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

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