Report Title:
Environmental Covenants
Description:
Authorizes director of health to enter into environmental covenants and issue orders compelling compliance with environmental covenants. Establishes an administrative penalty for violation of environmental covenants and authorizes state-instituted civil actions to recover penalties that are not paid. (HD1)
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HOUSE OF REPRESENTATIVES |
H.B. NO. |
2174 |
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TWENTY-THIRD LEGISLATURE, 2006 |
H.D. 1 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
relating to Health.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. Section 128D-4, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) Whenever any hazardous substance is released or there is a substantial threat of such a release into the environment, or there is a release or substantial threat of such release into the environment of any pollutant or contaminant that may present a substantial danger to the public health, welfare, or the environment, the director is authorized to act, consistent with the state contingency plan, to remove or arrange for the removal of, and provide for remedial action relating to, such hazardous substance, pollutant, or contaminant at any time, including its removal from any contaminated natural resources, or take any other response measure consistent with the state contingency plan [which] that the director deems necessary to protect the public health or welfare or the environment. The director may:
(1) Issue an administrative order or conduct any other enforcement or compliance activities necessary to compel any known responsible party or parties to take appropriate removal or remedial action necessary to protect the public health and safety and the environment;
(2) Upon determining that there may be an imminent and substantial endangerment to the public health or welfare or the environment because of an actual or threatened release of a hazardous substance, issue without a hearing, such orders as may be necessary to protect the public health, welfare, and the environment;
(3) Solicit the cooperation of responsible parties prior to issuing an order to encourage voluntary cleanup efforts[;] and, if necessary, negotiate enforcement agreements with responsible parties to conduct needed response actions according to deadlines established in compliance orders or settlement agreements;
(4) Undertake those investigations, monitoring, surveys, testing, sampling, and other information gathering necessary to identify the existence, source, nature, and extent of the hazardous substances or pollutants or contaminants involved and the extent of danger to the public health or welfare or to the environment;
(5) Perform any necessary removal or remedial actions so as to abate any immediate danger to the public health or welfare or to the environment; [and]
(6) Contract the services of appropriate organizations to perform the actions set forth in paragraphs (1), (2), (3), (4), and (5)[.];
(7) Enter into environmental covenants under chapter ; and
(8) Issue an administrative order to compel compliance with the terms and conditions set forth in an environmental covenant under chapter ."
SECTION 2. Section 128D-8, Hawaii Revised Statutes, is amended to read as follows:
"§128D-8 Civil and administrative penalties. (a) Any person who is liable for a release, or threat of a release, of hazardous substances, and who fails, without sufficient cause, to properly provide removal or remedial action pursuant to an administrative order issued by the director, may be liable to the department for punitive damages up to three times the amount of any costs incurred by the fund pursuant to this chapter as a result of the failure to perform the actions specified in the order. The director is authorized to commence a civil action against any such person to recover the punitive damages, which shall be in addition to any costs recovered from such person pursuant to section 128D-5.
(b) In addition to liability for costs incurred by the State for the investigation, assessment, containment, and removal of a release or a threat of a release of hazardous substances, any person who wilfully, knowingly, or recklessly violates or fails or refuses to comply with any provision of this chapter, or any order issued, or rule adopted under this chapter, shall be subject to a civil penalty not to exceed $50,000 for each separate violation. Each day a violation continues shall constitute a separate violation. The director is authorized to commence a civil action in the appropriate circuit court to recover such penalties.
(c) Any rule issued pursuant to this chapter shall be adopted in accordance with chapter 91.
(d) Civil penalties collected under this chapter shall be paid to the department for deposit into the revolving fund and may be recovered in a civil action in a court of competent jurisdiction where the violation is alleged to have occurred.
(e) In determining the amount of any civil penalty assessed pursuant to this section, the court shall take into account the nature, circumstances, extent, and gravity of the violation or violations and, with respect to the violator, ability to pay, any prior history of such violations, the degree of culpability, economic benefit of savings, if any, resulting from the violation, and such other matters as justice may require. The director may compromise and settle any claim for a penalty pursuant to this chapter.
(f) Any person who violates the terms and conditions of an environmental covenant under chapter or fails to comply with any order issued to compel compliance with an environmental covenant pursuant to section 128D-4, shall be subject to an administrative penalty not to exceed $25,000 for each separate violation. Each day a violation continues shall constitute a separate violation.
(g) Any administrative hearing conducted under this section shall be conducted as a contested case hearing under chapter 91.
(h) If the amount of any administrative penalty is not paid to the department within thirty days after it becomes due and payable, the director may institute a civil action in the name of the State to recover the penalty."
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 only if H.B. No. 1706 in any form passed by the legislature, Regular Session of 2006, becomes an Act.