REPORT TITLE:
Wastewater; Environ. Protect.


DESCRIPTION:
Brings management practices regarding water pollution, domestic
sewage, etc., under the water pollution law.  Allows the DOH to
establish a permanent exempt position for an ecological risk
assessor.  Requires the preparation of an EA for actions subject
to discretionary approval.  (SD3)

 
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THE SENATE                              S.B. NO.           S.D. 3
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            
                                                             
________________________________________________________________
________________________________________________________________


                   A  BILL  FOR  AN  ACT

RELATING TO ENVIRONMENT.



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

 1                              PART I.
 
 2      SECTION 1.  Section 342D-1, Hawaii Revised Statutes, is
 
 3 amended by adding two new definitions to be appropriately
 
 4 inserted and to read as follows:
 
 5      ""Management practices" include treatment, processing,
 
 6 storage, transport, use, and disposal.
 
 7      "Recycled water" means treated wastewater that by design is
 
 8 intended or used for beneficial purposes."
 
 9      SECTION 2.  Chapter 340B, Hawaii Revised Statutes, is
 
10 amended by amending its title to read as follows:
 
11                           "CHAPTER 340B
 
12            [HAWAII LAW FOR MANDATORY CERTIFICATION OF
 
13           PRIVATE CESSPOOL PUMPING FIRMS AND OPERATING
 
14             PERSONNEL IN WASTEWATER TREATMENT PLANTS]
 
15                  WASTEWATER TREATMENT PERSONNEL"
 
16      SECTION 3.  Section 342D-1, Hawaii Revised Statutes, is
 
17 amended by amending the definition of "sewage sludge" to read as
 
18 follows:
 
19      ""Sewage sludge" means any solid, semi-solid, or liquid
 

 
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 1 residue removed during the treatment of municipal wastewater
 
 2 [or], domestic sewage[.], or animal wastewater.  Sewage sludge
 
 3 includes, but is not limited to, solids removed during primary,
 
 4 secondary, or advanced wastewater treatment, scum, septage,
 
 5 portable toilet pumping, Type III Marine Sanitation device
 
 6 pumpings (33 Code of Federal Regulations Part 159), and sewage
 
 7 sludge products.  Sewage sludge does not include grit,
 
 8 screenings, or ash generated during the incineration of sewage
 
 9 sludge."
 
10      SECTION 4.  Section 342D-4, Hawaii Revised Statutes, is
 
11 amended to read as follows:
 
12      "§342D-4  Duties; rules.  In addition to any other power or
 
13 duty prescribed by law and in this chapter, the director shall
 
14 prevent, control, and abate water pollution in the State and may
 
15 control all management practices relating to water pollution and
 
16 for domestic sewage, animal wastewater, sewage sludge, and
 
17 [reclaimed] recycled water, whether or not [such] the practices
 
18 cause water pollution.  [Such management practices include
 
19 treatment, processing, storage, transport, use and disposal.] In
 
20 the discharge of this duty, the director may adopt rules pursuant
 
21 to chapter 91 necessary for the purposes of this chapter.  Any
 
22 person heard at the public hearing shall be given written notice
 
23 of the action taken by the department with respect to the rules."
 

 
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 1      SECTION 5.  Section 342D-6, Hawaii Revised Statutes, is
 
 2 amended by amending subsection (c) to read as follows:
 
 3      "(c)  The director shall issue a permit for any term, not
 
 4 exceeding five years, if the director determines that it will be
 
 5 in the public interest; provided that the permit may be subject
 
 6 to any reasonable conditions that the director may prescribe.
 
 7 The director may include conditions in permits, including
 
 8 conditions related to management practices for water pollution,
 
 9 or may issue separate permits for management practices for
 
10 domestic sewage, animal wastewater, sewage sludge, and recycled
 
11 water, whether or not the practices cause water pollution.  [The
 
12 management practices include treatment, processing, storage,
 
13 transport, use, and disposal.] The director, on application,
 
14 shall renew a permit from time to time for a term not exceeding
 
15 five years if the director determines that it will be in the
 
16 public interest.  The director shall not grant or deny an
 
17 application for the issuance or renewal of a permit without
 
18 affording the applicant and any person who commented on the
 
19 proposed permit during the public comment period an opportunity
 
20 for a hearing in accordance with chapter 91.  A request for a
 
21 hearing, a hearing, and any judicial review of the hearing shall
 
22 not stay the effect of the issuance or renewal of a permit unless
 
23 specifically ordered by the director or a court."
 

 
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 1      SECTION 6.  Section 342D-8, Hawaii Revised Statutes, is
 
 2 amended by amending subsection (a) to read as follows:
 
 3      "(a)  The director, in accordance with law, may enter and
 
 4 inspect any building or place to [investigate]:
 
 5      (1)  Investigate an actual or suspected source of water
 
 6           pollution[; to investigate] or management practices for
 
 7           water pollution;
 
 8      (2)  Investigate actual or suspected management practices
 
 9           for domestic sewage, animal wastewater,  sewage sludge,
 
10           and recycled water, whether or not [such] the practices
 
11           cause water pollution; [to ascertain]
 
12      (3)  Ascertain compliance or noncompliance with this
 
13           chapter[;], any rule or standard adopted by the
 
14           department pursuant to this chapter[;], or any permit
 
15           or other approval granted by the department pursuant to
 
16           this chapter; and [to make]
 
17      (4)  Make reasonable tests in connection therewith.
 
18           [Management practices include treatment, processing,
 
19           storage, transport, use, and disposal.]"
 
20      SECTION 7.  Section 342D-10, Hawaii Revised Statutes, is
 
21 amended by amending subsection (a) to read as follows:
 
22      "(a)  Notwithstanding any other law to the contrary, if the
 
23 governor or the director determines that an imminent peril to the
 

 
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 1 public health and safety is or will be caused by the discharge of
 
 2 waste, any combination of discharges of waste, or any management
 
 3 practice that requires immediate action, the governor or the
 
 4 director, without a public hearing, may order any person causing
 
 5 or contributing to the discharge of waste to immediately reduce
 
 6 or stop the discharge, or to reduce, stop, or change the
 
 7 management practice, and may take any and all other actions as
 
 8 may be necessary.  The order shall fix a place and time, not
 
 9 later than twenty-four hours thereafter, for a hearing to be held
 
10 before the director.  The management practices covered in this
 
11 subsection are those relating to water pollution and for domestic
 
12 sewage, animal wastewater, sewage sludge, and recycled water,
 
13 whether or not [such] the practices cause water pollution[, and
 
14 include treatment, processing, storage, transport, use, and
 
15 disposal]."
 
16      SECTION 8.  Section 342D-16, Hawaii Revised Statutes, is
 
17 amended to read as follows:
 
18      "[[]§342D-16[]  Other action not barred.] Remedies
 
19 preserved.  No existing civil or criminal remedy for any wrongful
 
20 action [which] that is a violation of any statute or any rule of
 
21 the department or the ordinance of any county shall be excluded
 
22 or impaired by this chapter.  No existing civil or criminal
 
23 remedy shall exclude or impair the remedies provided in this
 

 
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 1 chapter."
 
 2      SECTION 9.  Section 342D-55, Hawaii Revised Statutes, is
 
 3 amended to read as follows:
 
 4      "§342D-55  Recordkeeping and monitoring requirements. [The
 
 5 director may require:
 
 6      (1)  Complete and detailed plans or reports, on existing
 
 7           works, systems, plants, or management practices, and of
 
 8           any proposed addition to, modification of, or
 
 9           alteration of any such works, systems, plants, or
 
10           management practices, which contain the information
 
11           requested by the director in the form prescribed by the
 
12           director.  Such plans or reports shall be made by a
 
13           competent person acceptable to the director and at the
 
14           expense of such applicant or owner and
 
15      (2)  The owner or operator of any effluent source, any
 
16           discharger of effluent, or any person engaged in
 
17           management practices to:
 
18           (A)  Establish and maintain records;
 
19           (B)  Make reports;
 
20           (C)  Install, use, and maintain monitoring equipment or
 
21                methods;
 
22           (D)  Sample effluent, state waters, sewage sludge; and
 
23           (E)  Provide such other information as the department
 

 
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 1                may require.]
 
 2      (a)  The director may require the owner or operator of any
 
 3 effluent source, works, system, or plant subject to chapter 340B
 
 4 or this chapter, any discharger of effluent; or the applicant for
 
 5 written authorization under this chapter for the sources or
 
 6 facilities; or any person engaged in management practices to:
 
 7      (1)  Establish and maintain records;
 
 8      (2)  Make reports and plans that shall cover existing
 
 9           situations and proposed additions, modifications, and
 
10           alterations;
 
11      (3)  Install, use, and maintain monitoring equipment or
 
12           methods;
 
13      (4)  Sample effluent, state waters, and sewage sludge; and
 
14      (5)  Provide such other information as the department may
 
15           require.
 
16      (b)  The director may require that information and items
 
17 required under subsection (a) be complete and detailed, in a
 
18 prescribed form, made or prepared by a competent person
 
19 acceptable to the director, and at the expense of the owner,
 
20 operator, or applicant.
 
21      (c)  The management practices covered in this section are
 
22 those relating to water pollution and for domestic sewage, animal
 
23 wastewater, sewage sludge, and recycled water, whether or not
 

 
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 1 [such] the practices cause water pollution[, and include
 
 2 treatment, processing, storage, transport, use, and disposal]."
 
 3      SECTION 10.  Section 340B-21, Hawaii Revised Statutes, is
 
 4 repealed.
 
 5      ["[§340B-21]  Certification of private cesspool pumping
 
 6 firms.(a)  A private firm must be certified by the board prior
 
 7 to engaging in the activity of cesspool pumping.
 
 8      (b)  To apply for certification to engage in the activity of
 
 9 cesspool pumping a firm must be represented by at least one
 
10 responsible person meeting standards of competency as required by
 
11 rules adopted by the board.  Competency requirements are to
 
12 include the applicant's knowledge of the requirements for proper
 
13 waste disposal.  The applicant shall submit to the board an
 
14 application for certification in a form approved by the board,
 
15 which shall include information on the applicant's prior and
 
16 current involvement in the activity of cesspool pumping and such
 
17 information or credentials as may be required by this chapter or
 
18 the rules adopted by the board, and an application fee.  The
 
19 board shall issue a certificate to an applicant who has satisfied
 
20 the requirements established by the board.
 
21      (c)  The board, subject to chapter 91, shall adopt rules as
 
22 it deems reasonable and proper relating to the activity and
 
23 certification of cesspool pumping.  The rules of the board may
 

 
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 1 prescribe an original registration fee for the engaging by any
 
 2 firm in the activity of cesspool pumping and an annual renewal
 
 3 fee.
 
 4      (d)  Private firms certified pursuant to this section shall
 
 5 provide periodic reports to the board as prescribed by the board.
 
 6 Such reports are to include, but not be limited to, information
 
 7 as to the number of cesspools pumped, their location, and the
 
 8 manner of waste disposal.
 
 9      (e)  This section shall not apply to federal, state or
 
10 county agencies engaged in the activity of cesspool pumping.
 
11      (f)  A certificate may be revoked, suspended or refused by
 
12 the board upon proof to its satisfaction of violation of this
 
13 chapter or any rule of the board adopted pursuant thereto.  Every
 
14 firm so charged shall be given notice and opportunity for hearing
 
15 in conformity with chapter 91."]
 
16      SECTION 11.  This part does not affect rights and duties
 
17 that matured, penalties that were incurred, and proceedings that
 
18 were begun, before its effective date.  Rules adopted pursuant to
 
19 the chapters being amended shall remain in effect until the rules
 
20 are amended, repealed, or replaced.
 
21      SECTION 12.  All acts passed by the legislature during the
 
22 Regular Session of 1999, whether enacted before or after the
 
23 effective date of this part, shall be amended to conform to this
 

 
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 1 part; unless such acts specifically provide that this part is to
 
 2 be amended.
 
 3                             PART II.
 
 4      SECTION 13.  The department of health is moving toward
 
 5 adoption of a risk-based environmental management strategy, which
 
 6 is based upon risk assessment to human health and the
 
 7 environment, rather than upon rigid technical standards.
 
 8      Under the Comprehensive Emergency Response, Compensation and
 
 9 Liability Act of 1980 (CERCLA) and the Oil Pollution Act of 1990
 
10 (OPA 90), the department of health has responsibility as a
 
11 "natural resources trustee."  To fulfill this responsibility, the
 
12 department must have the ability to evaluate the impact of
 
13 chemical releases and oil spills on the complex ecosystems of
 
14 Hawaii.  This expertise requires an individual who is trained and
 
15 experienced in the field of ecological risk assessment.
 
16      In addition, as a trustee, the department is required to
 
17 conduct damage assessments and negotiate penalties with those
 
18 responsible for chemical releases and oil spills that harm the
 
19 environment.
 
20      To do this effectively, the department must have expertise
 
21 in-house to support the claims made by the State.  It is
 
22 difficult for the department to make its case and negotiate
 
23 successfully without a credible expert in the area of natural
 

 
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 1 biology and ecological risk assessment.  This is a very
 
 2 specialized field of study and the expertise will support all the
 
 3 programs of the environmental health administration.
 
 4      SECTION 14.  Chapter 128D, Hawaii Revised Statutes, is
 
 5 amended by adding a new section to be appropriately designated
 
 6 and to read as follows:
 
 7      "§128D-    Ecological risk assessor.  The department may
 
 8 establish a permanent exempt position for an ecological risk
 
 9 assessor for the purpose of assessing ecological risks and
 
10 damages.  The position shall be appointed by the director without
 
11 regard to chapters 76 and 77.  The funds for this position shall
 
12 come from the environmental response revolving fund established
 
13 in section 128D-2."
 
14                             PART III.
 
15      SECTION 15.  The legislature affirms that it is in the
 
16 public interest that actions which may have a significant impact
 
17 on the environment be subjected to a formal system of review to
 
18 ensure that the environmental concerns of the proposed actions
 
19 are given equal weight to economic and technical considerations.
 
20 The legislature finds that under existing law, certain proposed
 
21 actions which may have significant environmental effects are not
 
22 subject to the provisions for environmental review, and that such
 
23 review would provide substantive benefits to the public through
 

 
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 1 judicious evaluations of social and environmental effects, to the
 
 2 private applicant through the identification of appropriate
 
 3 mitigation strategies to minimize adverse environmental effects,
 
 4 and to government through the identification of appropriate
 
 5 planning principles and regulatory actions.
 
 6      The purpose of this part is to extend the environmental
 
 7 review provisions of chapter 343, Hawaii Revised Statutes, to
 
 8 encompass the proposed use of land subject to discretionary
 
 9 approval by a state or county agency except for those land uses
 
10 that have minimal or no significant effects.
 
11      SECTION 16.  Sections 343-5, Hawaii Revised Statutes, is
 
12 amended by amending subsection (a) to read as follows:
 
13      "(a)  Except as otherwise provided, an environmental
 
14 assessment shall be required for actions which:
 
15      (1)  Propose the use of state or county lands or the use of
 
16           state or county funds, other than funds to be used for
 
17           feasibility or planning studies for possible future
 
18           programs or projects which the agency has not approved,
 
19           adopted, or funded, or funds to be used for the
 
20           acquisition of unimproved real property; provided that
 
21           the agency shall consider environmental factors and
 
22           available alternatives in its feasibility or planning
 
23           studies;
 

 
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 1      (2)  Propose any use within any land classified as
 
 2           conservation district by the state land use commission
 
 3           under chapter 205;
 
 4      (3)  Propose any use within the shoreline area as defined in
 
 5           section 205A-41;
 
 6      (4)  Propose any use within any historic site as designated
 
 7           in the National Register or Hawaii Register as provided
 
 8           for in the Historic Preservation Act of 1966, Public
 
 9           Law 89-665, or chapter 6E;
 
10      (5)  Propose any use within the Waikiki area of Oahu, the
 
11           boundaries of which are delineated in the land use
 
12           ordinance as amended, establishing the "Waikiki Special
 
13           District";
 
14      (6)  Propose any amendments to existing county general plans
 
15           where such amendment would result in designations other
 
16           than agriculture, conservation, or preservation, except
 
17           actions proposing any new county general plan or
 
18           amendments to any existing county general plan
 
19           initiated by a county;
 
20      (7)  Propose any reclassification of any land classified as
 
21           conservation district by the state land use commission
 
22           under chapter 205; [and
 
23  [](8)[]] Propose the construction of new, or the expansion or
 

 
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 1           modification of existing helicopter facilities within
 
 2           the State which by way of their activities may affect
 
 3           any land classified as conservation district by the
 
 4           state land use commission under chapter 205; the
 
 5           shoreline area as defined in section 205A-41; or, any
 
 6           historic site as designated in the National Register or
 
 7           Hawaii Register as provided for in the Historic
 
 8           Preservation Act of 1966, Public Law 89-665, or chapter
 
 9           6E; or, until the statewide historic places inventory
 
10           is completed, any historic site found by a field
 
11           reconnaissance of the area affected by the helicopter
 
12           facility and which is under consideration for placement
 
13           on the National Register or the Hawaii Register of
 
14           Historic Places[.]; and
 
15      (9)  Propose any use of land when the use is subject to
 
16           discretionary approval by a state or county agency,
 
17           except those land uses that have minimal or no
 
18           significant effects as provided in section 343-
 
19           6(a)(7)."
 
20      SECTION 17.  There is appropriated out of the general
 
21 revenues of the State of Hawaii the sum of $40,000, or so much
 
22 thereof as may be necessary for fiscal year 1999-2000, to carry
 
23 out the purposes of this part, including the hiring of necessary
 

 
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 1 staff.  The sum appropriated shall be expended by the department
 
 2 of health.
 
 3                             PART IV.
 
 4      SECTION 18.  Statutory material to be repealed is bracketed.
 
 5 New statutory material is underscored.
 
 6      SECTION 19.  This Act shall take effect upon its approval;
 
 7 provided that sections 15, 16, and 17 shall take effect on
 
 8 July 1, 1999.
 

 
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