HOUSE OF REPRESENTATIVES
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 that harm 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 lacks sufficient staff 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-A Revolving fund; water pollution control account. (a) There is established within the water pollution control revolving fund established under section 342D-83, a separate account to be designated as the water pollution control account and into which shall be deposited:
(1) All revenues generated from the fees authorized in rules adopted pursuant to chapter 91 under section 341D-B and 342E-E;
(2) Any moneys appropriated from the general revenues of the State for these purposes; and
(3) All interest earned or accrued on moneys deposited into 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, as those terms are defined in section 342E-1, including 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
(5) Administering the water pollution control account.
§342D-B Operating fees; individual wastewater systems. The director shall adopt rules pursuant to chapter 91 establishing operating fees for owners of individual wastewater systems, as defined in section 342E-1, to be collected by the counties along with property taxes or by any other alternative mechanism as the director may provide by rule. Counties that collect fees pursuant to this section shall timely remit the fees 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 established under section 342D-A."
SECTION 3. Chapter 342E, Hawaii Revised Statutes, is amended by adding thirteen new sections to be appropriately designated and to read as follows:
"§342E-A Management plans; procedures for. (a) Any person, including any public entity, but not including any farming operation as defined in section 165-2 of less than ten acres in area or any landowner owning property of less than ten acres in area, shall obtain approval of a management plan by 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.
(b) An application for approval of a management plan shall be in a form prescribed by the director. The department may require that an application for approval of a management plan be accompanied by plans, specifications, and any other information that it deems necessary to determine whether the proposed installation, alteration, or use will be in accord with applicable rules and standards, including 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 a term not to exceed 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 approval 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 approval 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 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 the applicant failed 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 approval. The director may hold a public hearing before ruling on an application for a management plan approval 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 plan, any adverse environmental effects that cannot be avoided if the plan is implemented, the alternatives to the 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 plan if it is implemented, and any other factors that 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 and the application and all plans, specifications, and other information submitted as part thereof.
(i) The director shall establish an outreach program to provide landowners and owners of individual waste water systems with assistance in complying with this section, including guidance on the management plan application process and the requirements of this section, and education on nonpoint source pollution and its prevention, sewer connections, and upgrades.
§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, by certified mail or by personal service, to the alleged violator or violators describing the violation; provided that no penalties may be imposed until at least one year has transpired from the date of service of the notice required under paragraph (1).
(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 the 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 schedule submitted under paragraph (1) 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 the timeline specified in paragraph (1). The 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, by certified mail or by personal service, to that person, describing the 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 named therein requests 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 named therein requests 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 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 has occurred, the director shall affirm or modify any penalties imposed or shall modify or affirm the order previously issued or issue an appropriate order for the prevention, abatement, or control of the violation or water pollution discharges involved or for the taking of 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 by which any violation shall cease and may prescribe a timetable for necessary action in preventing, abating, or controlling the violation or water pollution 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. Any party aggrieved by the decision of the director may appeal in the manner provided in chapter 91 to the circuit court of the circuit in which the party resides or the party's principal place of business is located or in which the action in question occurred; provided that the operation of a cease and desist order shall not be stayed on appeal unless specifically ordered by a court of competent jurisdiction.
§342E-E Fees. The director by rules adopted pursuant to chapter 91 shall 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. The fees shall be deposited to the credit of the water pollution control account established under section 342D-A.
§342E-F Public records; confidential information; penalties. Reports submitted to the department on discharges of waste shall be made available for public inspection during established office hours unless the reports contain information of a confidential nature concerning proprietary processes or methods of manufacture. Any officer, employee, or agent of the department acquiring confidential information from the inspection of records pursuant to section 342E-3(b)(2) and 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 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 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 may 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 shall be 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 be fined not more than $10,000, or imprisoned for not more than two years, or both. Any person convicted of a second offense under this section shall be fined not more than $20,000 per day of violation, or imprisoned not more than four years, or both.
§342E-K 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-L 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-M 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 4. Section 342E-1, Hawaii Revised Statutes, is amended by adding eleven new definitions to be appropriately inserted and to read as follows:
""Best management practices" mean 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 includes 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, including general, industry-specific, or site-specific best management practices.
"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 that 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 any other liquid, gaseous, or solid substance, including radioactive substance, whether or not treated, which may pollute or tend to pollute the waters of this State.
"Wastewater" means any liquid waste, whether or not treated 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) The 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) The discharge of any liquid, gaseous, solid, radioactive, or other substances into any state waters,
that will or is likely to create a nuisance or render the 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 the 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 5. Section 342E-1, Hawaii Revised Statutes, is amended by amending the definition of "person" to read as follows:
""Person" means any individual,
partnership, firm, association, public or private corporation, federal agency,
the State or a county, trust, estate, [
or] any other legal entity[ .]
and any responsible corporate officer."
SECTION 6. Section 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, the
economic benefit, if any, resulting from the violation, any history of violations,
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 shall be on the
(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 [
$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 7. The director of health shall prescribe a management plan application form no later than July 1, 2014; provided that the management plan application requirements provided under section 342E-A, Hawaii Revised Statutes, shall become effective on July 1, 2015.
SECTION 8. In codifying the new sections added to chapters 342D and 342E, Hawaii Revised Statutes, by sections 2 and 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 9. Statutory material to be repealed is bracketed. New statutory material is underscored.
SECTION 10. This Act, upon its approval, shall take effect on July 1, 2013.
Water Pollution; Fee Rules; Separate Account
Establishes a separate Water Pollution Control account and authorizes the Director of Health to prescribe fees to help fund operations of the Department of Health in managing pollution from nonpoint sources and individual wastewater systems. Effective July 1, 2013. (HB903 HD1)
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.