HOUSE OF REPRESENTATIVES

H.B. NO.

903

TWENTY-SEVENTH LEGISLATURE, 2013

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

RELATING TO WATER POLLUTION.

 

 

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

 


     SECTION 1.  The legislature finds that Hawaii's fresh, marine, and ground waters are being harmed by water pollution from many sources, including nonpoint stormwater discharges from agriculture and other lands as well as individual wastewater systems, which are facilities, including cesspools, septic systems, and aerobic treatment units, that are not connected to a sewer.  The legislature finds that runoff from agriculture and other lands is polluted with soil, fertilizers, pesticides, and other wastes, and so harms state waters, coral reefs, and public recreation with the frequently required "brownwater advisories" that follow heavy rain events.  Stormwater runoff also harms Hawaii's agriculture by carrying away precious topsoil.

     The director of health is authorized to control water pollution under several Hawaii statutes.  The director under sections 342D-4 and 342D-5, Hawaii Revised Statutes, shall prevent, control, and abate water pollution, may control all management practices for domestic sewage, and may adopt rules necessary to control water pollution.  The director under section 321-11, Hawaii Revised Statutes, may adopt rules deemed necessary for the public health respecting nuisances and cesspools.  The director under sections 342E-3(a)(2) and 342E-3(a)(11), Hawaii Revised Statutes, shall adopt rules and propose legislation, alternative funding mechanisms, and new programs to improve the State's capacity to mitigate nonpoint source pollution.

     The director of health is not, however, explicitly authorized by statute to collect fees to fund programs that reduce nonpoint source pollution or fees on owners of individual wastewater systems.

     The legislature finds that the department of health is understaffed to manage nonpoint source pollution.  The legislature further finds that, although owners of individual wastewater systems may pay initial filing fees for new systems and modifications to existing systems, they do not pay fees for the pollution that individual wastewater systems place in the public's surface waters and groundwater, nor do they pay the substantial fees charged to those who are served by sewers that treat and mitigate wastewater pollution.

     The purpose of this Act is to improve the State's ability to control and reduce water pollution from nonpoint sources and individual wastewater systems.  This Act requires the director of health to establish by rule fees to fund programs that reduce pollution from nonpoint sources and operating fees for owners of individual wastewater systems.

     SECTION 2.  Chapter 342D, Hawaii Revised Statutes, is amended by adding two new sections to be appropriately designated and to read as follows:

     "§342D-    Water pollution control account within the revolving fund.  (a)  The director shall direct the creation of a separate account within the water pollution control revolving fund established under section 342D-83.  This separate account shall be designated as the water pollution control account, into which shall be deposited all revenues generated from fees authorized in rules adopted pursuant to chapter 91 under this chapter or chapter 342E and any moneys appropriated from the general revenues of the State for these purposes.  All interest earned or accrued on moneys deposited in the water pollution control account shall become a part of the account.

     (b)  The moneys in the water pollution control account shall be expended by the department for controlling and reducing pollution from point sources, nonpoint sources, and individual wastewater systems, including without limitation by:

     (1)  Preparing generally applicable rules or guidelines;

     (2)  Implementing and enforcing the terms and conditions of any rules, permits, and management plans relating to point and nonpoint sources of pollution, and department-approved plans for individual wastewater systems, including legal support as defined by rules;

     (3)  Monitoring discharges from point sources, nonpoint sources, and individual wastewater systems;

     (4)  Performing or reviewing modeling, analyses, and

          demonstrations; and

     (5)  Administering the water pollution control account.

     §342D-    Fees.  The director shall adopt rules establishing operating fees for owners of individual wastewater systems, to be collected by the counties along with property taxes or by other alternative mechanism as the director may determine by rule.  If the counties collect fees, they shall timely remit them, minus reasonable collection charges as the director may establish by rule after consultation with the counties, for deposit to the credit of the water pollution control account within the water pollution control revolving fund."

     SECTION 3.  Chapter 342E, Hawaii Revised Statutes, is amended by adding fourteen new sections to be appropriately designated and to read as follows:

     "§342E-A  Management plans; procedures for.  (a)  Any person, including any public body, shall submit an application for approval of a management plan in a form prescribed by the director and obtain a management plan approval from the director prior to discharging any water pollutant into state waters from a nonpoint source, or causing or allowing any water pollutant to enter state waters from a nonpoint source other than in compliance with this chapter or rules adopted pursuant to this chapter.

     (b)  The department may require that applications for approval of any management plans shall be accompanied by plans, specifications, and any other information that it deems necessary in order to determine whether the proposed installation, alteration, or use will be in accord with applicable rules and standards, including without limitation water quality standards and standards of performance for specific areas and types of discharges in the control of water pollution, thereby allowing for varying local conditions, as adopted by the director in rules pursuant to section 342D-5.

     (c)  The director shall approve a management plan for any term, not exceeding five years, if the director determines that it will be in the public interest; provided that the management plan may be subject to any reasonable conditions that the director may prescribe.  The director, on application, shall renew a management plan from time to time for a term not exceeding five years if the director determines that it will be in the public interest.  The director shall not deny an application for the issuance or renewal of a management plan without affording the applicant an opportunity for a hearing in accordance with chapter 91.  A request for a hearing and any judicial review of the hearing decision shall not stay the effect of the issuance or renewal of a management plan unless specifically ordered by the director or a court.

     (d)  Applicants shall comply with all department orders, conditions of approval, and minimum criteria that the department may establish by rule.

     (e)  The director, on the director's own motion or the application of any person, may modify, suspend, revoke, or revoke and reissue any water pollution management plan approval if, after affording the applicant an opportunity for a hearing in accordance with chapter 91, the director determines that:

     (1)  There is a violation of any condition of the management plan;

     (2)  The management plan was obtained by misrepresentation, or there was failure to disclose fully all relevant facts;

     (3)  There is a change in any condition that requires either a temporary or permanent change in the management plan; or

     (4)  It is in the public interest.

     (f)  The director shall ensure that the public receives notice of each application for a management plan to control water pollution.  The director may hold a public hearing before ruling on an application for a management plan to control water pollution if the director determines the public hearing to be in the public interest.  In determining whether a public hearing would be in the public interest, the director shall be guided by whether the director finds, on the basis of requests, a significant degree of public interest in a management plan, or a need to clarify issues in a management plan.

     (g)  In determining the public interest regarding management plan approval issuance or renewal, the director shall consider the environmental impact of the proposed plan, any adverse environmental effects which cannot be avoided should the plan be implemented, the alternatives to the proposed plan, the relationship between local short-term uses of the environment and the maintenance and enhancement of long-term productivity, any irreversible and irretrievable commitments of resources that would be involved in the proposed plan should it be implemented, and any other factors which the director, by rule, may prescribe; provided that any determination of public interest shall promote the optimum balance between economic development and environmental quality.

     (h)  No applicant for a modification or renewal of a management plan approval shall be held in violation of this chapter during the pendency of the applicant's application so long as the applicant acts consistently with the management plan previously granted, the application and all plans, specifications, and other information submitted as part thereof.

     §342E-B  Enforcement.  (a)  If the director determines that any person has violated or is violating this chapter, any rule adopted pursuant to this chapter, any management plan approval issued pursuant to this chapter, or any water quality standard or standards of performance for specific areas and types of discharges in the control of water pollution, thereby allowing for varying local conditions, as adopted by rule pursuant to section 342E-3, the director:

     (1)  Shall cause written notice to be served upon the alleged violator or violators.  The notice shall specify the alleged violation and may contain an order specifying a reasonable time during which that person shall be required to take any measures that may be necessary to correct the violation and to give periodic progress reports;

     (2)  May require that the alleged violator or violators appear before the director for a hearing at a time and place specified in the notice and answer the charges complained of; and

     (3)  May impose penalties as provided in section 342E-I by sending written notice, either by certified mail or by personal service, to the alleged violator or violators describing the violation.

     (b)  If the director determines that any person is continuing to violate this chapter, any rule adopted pursuant to this chapter, or any management plan approval issued pursuant to this chapter after having been served notice of violation, the director:

     (1)  Shall cause written notice to be served upon the alleged violator or violators.  The notice shall specify the alleged violation and shall contain an order requiring that person to submit a written schedule within thirty days specifying the measures to be taken and the time within which such measures shall be taken to bring that person into compliance with this chapter, any rule adopted pursuant to this chapter, or any management plan approval issued pursuant to this chapter;

     (2)  Shall accept or modify the submitted schedule within thirty days of receipt of the schedule.  Any schedule not acted upon after thirty days of receipt by the director shall be deemed accepted by the director;

     (3)  Shall issue to the alleged violator or violators a cease and desist order against the activities that violate this chapter, any rule adopted pursuant to this chapter, or any management plan approval issued pursuant to this chapter if that person does not submit a written schedule to the director within thirty days.  This order shall remain in effect until the director accepts the written schedule; and

     (4)  May impose penalties as provided in section 342E-I by sending a notice in writing, either by certified mail or by personal service, to the alleged violator or violators describing the violation.

     (c)  If the director determines that any person has violated an accepted schedule or an order issued under this section, the director shall impose penalties by sending a notice in writing, either by certified mail or by personal service, to that person, describing such nonadherence or violation with reasonable particularity.

     (d)  Any order issued under this chapter shall become final, unless not later than twenty days after the notice of order is served, the person or persons named therein request in writing a hearing before the director.  Any penalty imposed under this chapter shall become due and payable twenty days after the notice of penalty is served unless the person or persons named therein request in writing a hearing before the director.  Whenever a hearing is requested on any penalty imposed under this chapter, the penalty shall become due and payable only upon completion of all review proceedings and the issuance of a final order confirming the penalty in whole or in part.  Upon request for a hearing, the director shall require that the alleged violator or violators appear before the director for a hearing at a time and place specified in the notice and answer the charges complained of.

     (e)  Any hearing conducted under this section shall be conducted as a contested case under chapter 91.  If after a hearing held pursuant to this section, the director finds that a violation or violations have occurred, the director shall affirm or modify any penalties imposed or shall modify or affirm the order previously issued or issue an appropriate order or orders for the prevention, abatement, or control of the violation or discharges involved, or for the taking of such other corrective action as may be appropriate.  If, after a hearing on an order or penalty contained in a notice, the director finds that no violation has occurred or is occurring, the director shall rescind the order or penalty.  Any order issued after hearing may prescribe the date or dates by which the violation or violations shall cease and may prescribe timetables for necessary action in preventing, abating, or controlling the violation or discharges.

     (f)  If the amount of any 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 collect the administrative penalty which shall be a government realization.

     In any proceeding to collect the administrative penalty imposed, the director need only show that:

     (1)  Notice was given;

     (2)  A hearing was held or the time granted for requesting a hearing expired without a request for a hearing;

     (3)  The administrative penalty was imposed; and

     (4)  The penalty remains unpaid.

     (g)  In connection with any hearing held pursuant to this section, the director shall have the power to subpoena the attendance of witnesses and the production of evidence on behalf of all parties.

     §342E-C  Injunctive and other relief.  The director may institute a civil action in any court of competent jurisdiction for injunctive and other relief to prevent any violation of this chapter, any rule adopted pursuant to this chapter, or any condition of a management plan approval issued pursuant to this chapter, without the necessity of a prior revocation of the management plan approval, to impose and collect civil penalties, to collect administrative penalties, or to obtain other relief.  The court shall have power to grant relief in accordance with the Hawaii rules of civil procedure.

     §342E-D  Appeal.  If any party is aggrieved by the decision of the director, the party may appeal in the manner provided in chapter 91 to the circuit court of the circuit in which the party resides or has the party's principal place of business or in which the action in question occurred; provided that the operation of a cease and desist order will not be stayed on appeal unless specifically ordered by a court of competent jurisdiction.

     §342E-E  Fees.  The director shall by rule pursuant to chapter 91 establish reasonable fees to cover the costs of reviewing management plans and issuing approvals, implementing and enforcing the terms and conditions of management plan approvals, and other department efforts to control nonpoint source pollution.  These fees shall be deposited to the credit of the water pollution control account within the water pollution control revolving fund.

     §342E-F  Public records; confidential information; penalties.  Reports submitted to the department on discharges of waste shall be made available for inspection by the public during established office hours unless such reports contain information of a confidential nature concerning secret processes or methods of manufacture.  Any officer, employee, or agent of the department acquiring confidential information from the inspection authorized by section 342E-3 who divulges information except as authorized in this chapter or except as ordered by a court or at an administrative hearing regarding an alleged violation of this chapter or of any rule or standard adopted pursuant to this chapter shall be fined not more than $1,000.

     §342E-G  Nonliability  of department personnel.  Notwithstanding any other law to the contrary, no member, officer, or employee of the department shall be criminally liable or responsible under this chapter for any acts of trespass by the member, officer, or employee in the performance of the member's, officer's, or employee's duties.

     §342E-H  Other action not barred.  No existing civil remedy or criminal penalty for any wrongful action that is a violation of any statute or any rule of the department or the ordinance of any county shall be precluded or impaired by this chapter.  No existing civil remedy or criminal penalty shall exclude or impair the remedies provided in this chapter.

     §342E-I  Administrative penalties.  (a)  In addition to any other administrative or judicial remedy provided by this chapter, or by rules adopted under this chapter, the director is authorized to impose by order the penalties specified in section 342E-4.

     (b)  Factors to be considered in imposing an administrative penalty include:

     (1)  The nature, circumstances, extent, gravity, and history of the violation and of any prior violations;

     (2)  The economic benefit to the violator, or anticipated by the violator, resulting from the violation;

     (3)  The opportunity, difficulty, and history of corrective action;

     (4)  Good faith efforts to comply;

     (5)  Degree of culpability; and

     (6)  Such other matters as justice may require.

     (c)  It is presumed that the violator's economic and financial conditions allow payment of the penalty, and the burden of proof to the contrary is on the violator.

     §342E-J  False statements.  Any person who knowingly makes any false material statement, representation, or certification in any application, record, report, plan or other document filed or required to be maintained under this chapter or who knowingly falsifies, tampers with, or renders inaccurate any monitoring device or method required to be maintained under this chapter, shall upon conviction, be punished by a fine of not more than $10,000, or by imprisonment for not more than two years, or by both.  If a conviction of a person is for a violation committed after a first conviction of such person under this section, punishment shall be by a fine of not more than $20,000 per day of violation, or by imprisonment of not more than four years, or by both.

     §342E-K  Responsible corporate officer as "person".  For the purpose of this chapter, the term "person" means, in addition to the definition contained in section 342E-1, any responsible corporate officer.

     §342E-L  Prohibition.  (a)  No person, including any public body, shall discharge any water pollutant into state waters, or cause or allow any water pollutant to enter state waters from a nonpoint source except in compliance with this chapter, rules adopted pursuant to this chapter, or a management plan approval issued by the director. 

     (b)  No person, including any public body, shall violate any rule adopted pursuant to this chapter or any management plan approval issued or modified pursuant to this chapter.

     §342E-M  Public participation activities; appointment of hearings officers.  The director may appoint, without regard to chapter 76, hearings officers to conduct public participation activities, including public hearings and public informational meetings.

     §342E-N  Consultation and advice.  The director may consult with and advise:

     (1)  Any person engaged or intending to be engaged in any business or undertaking whose waste, sewage, or drainage is polluting or may tend to pollute state waters; and

     (2)  Persons intending to alter or to extend any system of drainage, sewage, or water supply."

     SECTION 4Section 342E-1, Hawaii Revised Statutes, is amended by adding eleven new definitions to be appropriately inserted and to read as follows:

     ""Best management practices" means schedules of activities, prohibitions or designations of practices, maintenance procedures, and other management practices to prevent or reduce the pollution of state waters.  Best management practices also include treatment requirements, operating procedures and practices to control site runoff, spillage or leaks, sludge or waste disposal, or drainage from raw material storage.

     "Domestic wastewater" is waste and wastewater from humans or household operations that:

     (1)  Is discharged to or otherwise enters a treatment works; or

     (2)  Is of a type that is usually discharged to or otherwise enters a treatment works or an individual wastewater system.

     "Individual wastewater systems" means facilities, including cesspools, septic systems, and aerobic treatment units, that are not connected to a sewer and are used and designed to receive and dispose of no more than one thousand gallons per day of domestic wastewater (or greater than one thousand gallons with a variance).

     "Management plan" means a document that describes likely nonpoint source pollution from a property and measures to control, minimize, and reduce such pollution.  These plans generally contain various best management practices, which may be general, industry-specific or site-specific.

     "Management plan approval" means written authorization from the director to construct, modify, or operate any nonpoint water pollution source under the terms of the management plan, including any conditions required by the director.

     "Party" means each person or agency named as party or properly entitled to be a party in any court or agency proceeding.

     "Standard of performance" means a standard for the control of the discharge of water pollutants that reflects the greatest degree of effluent reduction which the director determines to be achievable through application of the best demonstrated control technology, processes, operating methods, or other alternatives, including, where practicable, a standard permitting no discharge of water pollutants.

     "Waste" means sewage, industrial and agricultural matter, and all other liquid, gaseous, or solid substance, including radioactive substance, whether treated or not, which may pollute or tend to pollute the waters of this State.

     "Wastewater" means any liquid waste, whether treated or not, and whether animal, mineral, or vegetable including agricultural, industrial, and thermal wastes.

     "Water pollutant" means dredged spoil, solid refuse, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical waste, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, soil, sediment, cellar dirt, and industrial, municipal, and agricultural waste.

     "Water pollution" means:

     (1)  Such contamination or other alteration of the physical, chemical, or biological properties of any state waters, including change in temperature, taste, color, turbidity, or odor of the waters, or

     (2)  Such discharge of any liquid, gaseous, solid, radioactive, or other substances into any state waters,

as will or is likely to create a nuisance or render such waters unreasonably harmful, detrimental, or injurious to public health, safety, or welfare, including harm, detriment, or injury to public water supplies, fish and aquatic life and wildlife, recreational purposes and agricultural and industrial research and scientific uses of such waters or as will or is likely to violate any water quality standards, effluent standards, treatment and pretreatment standards, or standards of performance for new sources adopted by the department."

     SECTION 5Section 342E-4, Hawaii Revised Statutes, is amended to read as follows: 

     "[[]§342E-4[]]  Civil penalties.  (a)  Any person who violates any rule adopted under this chapter shall be fined not more than [$10,000] $25,000 for each separate offense.  Each day of each violation shall constitute a separate offense.  Any action taken in court to impose or collect the penalty provided for in this [section] subsection shall be considered a civil action.  In determining the amount of a civil penalty the court shall consider the seriousness of the violation or violations, the economic benefit, if any, resulting from the violation, any history of these violations, any good-faith efforts to comply with the applicable requirements, the economic impact of the penalty on the violator, and any other matters that justice may require.  It shall be presumed that the violator's economic and financial conditions allow payment of the penalty, and the burden of proof of the contrary is on the violator.

     (b)  Any person who denies, obstructs, or hampers the entrance to and inspection by any duly authorized officer or employee of the department of any building, place, or vehicle that the officer or employee is authorized to enter or inspect shall be fined not more than [$5,000] $10,000 for each day of such a denial, obstruction, or hampering.  Any action taken in court to impose or collect the penalty provided for in this [section] subsection shall be considered a civil action.

     (c)  Any fine or penalty collected shall be placed in the environmental response revolving fund pursuant to [[]section[]] 128D-2."

     SECTION 6.  In codifying the new sections added to chapter 342E, Hawaii Revised Statutes, by section 3 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in the designations of, and references to, those new sections in this Act.

     SECTION 7.  Statutory material to be repealed is bracketed.  New statutory material is underscored.

     SECTION 8.  This Act, upon its approval, shall take effect on July 1, 2013.

 

INTRODUCED BY:

_____________________________

 

 

BY REQUEST


 


 

Report Title:

Water Pollution; Fee Rules; Separate Account

 

Description:

Establishes a separate Water Pollution Control account within existing Water Pollution Control Revolving Fund and authorizes the Director of Health to adopt through rules fees to help fund operations of the Department of Health in managing pollution from nonpoint sources and individual wastewater systems.

 

 

 

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