SB3362

SECTION 1. The legislature finds that neglecting to create the conditions necessary for the maintenance of critical public health infrastructure constitutes gross negligence when it is known to all parties responsible for creating those conditions that catastrophic failure of such infrastructure is imminent.

In addition to averting public health threats, the replacement of aging infrastructure affords opportunities to take advantage of technological advancements that increase the efficiency and public benefit derived from the facilities that make up this infrastructure.

Wastewater treatment plants are increasingly recognized as a valued source of water, energy, and nutrients that can be used to help municipalities meet their sustainable development goals, and, for this reason, Hawaii county wastewater treatment departments seek to explore opportunities to take advantage of state-of-the-art technologies that provide resource recovery functions. Because such functions have not been customarily and traditionally included in Hawaii's wastewater treatment infrastructure, legal questions regarding who can operate these state-of-the-art facilities arise in ways that impede the exploration process and prevent the establishment of effective business models that would allow for the development of regulatory compliant, and environmentally and financially sound resource recovery systems.

The legislature further finds that it is not necessary to institute a broad systemic change in the way critical public health infrastructure is built or operated in order to create the conditions necessary for the proper maintenance or optimized replacement of that infrastructure. Strong unions foster a vibrant middle class by setting standards that improve wages and benefits for all workers, reduce racial and gender disparities, and provide a level of economic resiliency that allows Hawaii's economy to weather disruptions like those created by the ongoing coronavirus disease 2019 (COVID-19) pandemic. For these reasons, the legislature recognizes that it is in the best interests of the State and its citizens to preserve unionized civil service jobs and seek ways to uphold, rather than undermine, the Konno v. County of Hawaii, 937 P.2d 397 (1997) decision.

In order to fulfill its duty to protect the environment, economy and public health while also fulfilling its obligation to protect jobs customarily and traditionally performed by civil servants, the legislature has the power to establish exemptions that allow the State and its counties the flexibility they need to act quickly in addressing imminent threats from failing infrastructure through the use of novel technologies and approaches.

The legislature finally finds that protection of jobs customarily and traditionally performed by civil servants requires that the exclusive representative of appropriate collective bargaining units must be included in the negotiation of private contracts. Existing county employees impacted by private contracts must be provided with the opportunity to be retrained for a different position or reassigned if their position becomes obsolete, and no employee of the county who is separated from service as a result of implementation of a private contract for wastewater facility development should suffer any loss of any previously earned rights, benefits, or privileges.

Therefore, the purpose of this Act is to:

(1) Establish a set of criteria by which the director of the county agency having jurisdiction over wastewater management can determine that catastrophic failure of existing wastewater treatment facilities is imminent;

(2) Authorize each county to negotiate with private entities to fund, design, build, and operate new wastewater treatment and resource recovery facilities when catastrophic failure of existing wastewater treatment facilities is imminent;

(3) Allow each county to contract certain services in cases where those services are urgently needed to prevent the catastrophic failure of existing wastewater treatment facilities; and

(4) Amend the definition of "resource recovery facility" for purposes of chapter 340A, Hawaii Revised Statutes, to expressly encompass other resources that a county may desire such as, reusable water and recoverable gas.

SECTION 2. Chapter 46, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:

"Part . public-private partnerships for the delivery of wastewater treatment and resource recovery services at hawaii wastewater treatment system facilities.

§46- Definitions. As used in this part:

"Private entity" means a business organization duly authorized to transact business in the State that:

(1) Possesses a certificate of need provided to the wastewater recovery facility's operator needed to design, construct, maintain, and operate a wastewater treatment plant, and is able to demonstrate the successfulness of the resource recovery facility pursuant to chapter 340A; or

(2) Is the sole member of a nonprofit management entity.

"Resource recovery facility" shall have the same meaning as defined in section 340A-1.

§46- Contracts for wastewater management. Notwithstanding any other law to the contrary, a county may contract with a private entity to design, build, and operate a wastewater treatment facility as a replacement for an existing facility established under chapter 48E as a public undertaking; provided that the director of the county agency having jurisdiction over wastewater management has:

(1) Determined through an assessment conducted by an independent third-party professional engineer certified in the State, that fifty per cent of the assets of the existing facility have reached a condition that there is no redundancy and receives a D-grade or greater level of failure;

(2) Determined that the failure of the existing facility poses imminent harm to the public health and environment; and

(3) Determined that the cost to replace the existing facility exceeds twenty-five per cent of the county's budget.

§46- Experimental modernization projects; wastewater treatment and resource recovery facilities. (a) It is the intent of this section to encourage and facilitate the addition of resource extraction and recovery functions to new wastewater treatment facilities.

(b) Prior to the implementation of any project pursuant to this section, the director shall develop an assessment identifying the purpose, scope, duration, and public benefit of the project.

(c) While the project is in development, the project shall not be limited by state or county personnel laws and rules but shall be in compliance with all equal employment opportunity laws, laws prohibiting discrimination, and chapter 89.

(d) If necessary, the director shall consult and negotiate with the exclusive representative of appropriate collective bar-gaining units if a modification or waiver of any provision in a collective bargaining agreement, including any new provision, is necessary to manage or operate the project once the project is implemented.

(e) No employee of the county who is separated from service as a result of implementation of an agreement under this part shall suffer any loss of any previously earned rights, benefits, or privileges.

(f) The private entity contracted for these services shall take all reasonable steps necessary to provide for the efficient transition of employees from county employment to employment by the private entity.

(g) Any agreement between the director and an exclusive representative of appropriate collective bargaining units engaged in the management and operation of a project pursuant to this section, including any modification, waiver, or new provision of a collective bargaining agreement, shall be mutually agreed to in writing before the project is implemented.

(h) As used in this section, "director" means the director of a county agency having jurisdiction over wastewater and solid waste management."

SECTION 3. Section 340A-1, Hawaii Revised Statutes, is amended by amending the definition of "resource recovery facility" to read as follows:

""Resource recovery facility" means a facility in which solid waste is extracted, converted to energy, or otherwise separate, prepared, or reprocessed for use into new products, including but not limited to clean water, nutrients, fertilizer, renewable energy, gas, and bioshields, in such manner that original products lose their identity."

SECTION 4. New statutory material is underscored.

SECTION 5. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	3362
THIRTY-FIRST LEGISLATURE, 2022
STATE OF HAWAII