Haw. Code R. § 11-451-8 - General

(a) Purpose. This subchapter establishes procedural requirements that the department shall follow or require another person to follow when hazardous substance, pollutant, or contaminant that may pose a substantial endangerment to public health or welfare, the environment, or natural resources, including:

(1) Methods and criteria for determining the appropriate extent and type of response actions authorized by chapter 1280, HRS;

(2) Procedures for gathering sufficient information to characterize a release or threat of release;

(3) Procedures to identify and analyze potential response options;

(4) Procedures for implementing removal or remedial actions; and

(5) Procedures the department shall follow in selecting remedial actions.

(b) Limitations on departmental response. Unless the department determines that a release constitutes a public health or environmental emergency and no other person with the authority and capability to respond will do so in a timely manner, the department shall not use the fund monies to conduct a response action under section 128D-4, HRS, in response to a release:

(1) Of a naturally occurring substance in its unaltered form, or altered solely through naturally occurring processes or phenomena, from a location where it is naturally found;

(2) From products that are part of a building, and result in exposure within the building; or

(3) Into public or private drinking water supplies due to deterioration of the water supply system through ordinary use.

(c) Guiding principles. In determining the need for and in planning or undertaking a response action, the department will to the extent practicable:

(1) Engage in prompt response actions;

(2) Consider, or require to be considered the following hierarchy of response action alternatives in order of descending preference:

(A) Reuse or recycling;

(B) Destruction or detoxification;

(C) Separation, concentration, or volume reduction, followed by reuse, recycling, destruction or detoxification of the residual hazardous substance or pollutant or contaminant;

(D) Immobilization of hazardous substances or pollutants or contaminants;

(E) On-site or off-site disposal, isolation, or containment at an engineered facility designed to minimize the future release of hazardous substances, pollutants, or contaminants and in accordance with applicable requirements; and

(F) Institutional controls or long term monitoring.

(3) Conserve fund monies by soliciting the cooperation of potentially responsible parties, and if necessary, entering into consent agreements or issuing orders, which require potentially responsible parties to conduct any necessary response action or actions;

(4) Seek to recover any cost incurred and payable from the fund in accordance with section 128D-5, HRS; and

(5) Ensure that the concerns of affected or potentially affected public and private interests, including local communities, are considered.

(d) Potentially responsible party notification. In soliciting the cooperation of potentially responsible parties, the department, at its discretion, may:

(1) Provide the potentially responsible parties notice of their potential liability under section 128D-6, HRS, and a description of the conditions believed by the department to exist at the facility or vessel which warrant a response action; and

(2) Provide potentially responsible parties with the opportunity to conduct any required response action.

(e) Compliance with applicable requirements. All response actions, including assessment and investigation activities, must at a minimum comply with applicable requirements. In addition to complying with applicable requirements, the department may, as appropriate, identify other advisories, criteria, or guidance to be considered for a particular release. The "to be considered" category consists of advisories, criteria, or guidance developed by the department, EPA, other federal agencies, or states that may be useful in developing response actions.

(f) Timing of response action implementation. Response actions are to be implemented as soon as site data and information make it possible to do so, especially, when the department determines that removals or interim remedial actions are necessary or appropriate to achieve significant early risk reduction.

(g) Removals or interim remedial actions should not be inconsistent with nor preclude implementation of the expected final remedial action.

(h) Posting of signs. If the department determines that posting a sign to inform persons of the potential presence of hazardous substances, pollutants, or contaminants is appropriate, the department shall post, or require to be posted, a sign with the legend, "Notice - Hazardous Substances, Pollutants, or Contaminants May Be Present - Unauthorized Personnel Keep Out," at each entrance to the facility or vessel, and at other locations, in sufficient numbers to be seen from any approach to the facility or vessel. The sign shall include a designated point of contact and their phone number. The legend must be written in English, and must be legible from a distance of at least 25 feet. Existing signs may be used if the legend on the sign indicates that only authorized personnel are allowed to enter the facility or vessel, and that entry onto the facility or vessel can be dangerous. The sign may be removed once the department has determined that no further response action is appropriate or that posting the sign is no longer appropriate.

(i) Oversight. The department may provide oversight for actions taken by potentially responsible parties to ensure that a response is conducted consistent with this chapter. The department may provide oversight when the response is pursuant to an order issued by the department, or pursuant to a judicial order or an enforceable agreement which the department and a potentially responsible party enter into pursuant to this chapter.

(j) This chapter does not establish any preconditions to enforcement action by the state government to compel response actions by potentially responsible parties.

(k) Except as provided in section 11-451-18, nothing in this chapter is intended to limit the rights of any person to seek recovery of response costs from responsible parties pursuant to section 128D-5, HRS.

(1) Activities by the department in implementing this chapter may be discretionary governmental functions. This chapter does not create in any private party a right to department response or enforcement action. This chapter does not create any duty of the department to take any response action at any particular time.

(a) Cost recovery documentation. Pursuant to 128D-5 HRS, the department may request the attorney general to recover any costs incurred and payable from the fund. During all phases of response, the department shall, to the extent practicable and considering the exigencies of the situation, complete and maintain documentation to form the basis for cost recovery pursuant to section 128D-5, HRS. In general, documentation shall address the following:

(1) The source and circumstances of the release;

(2) The response action taken; and

(3) An accounting of state costs incurred, including personnel and indirect costs, for response actions.

(n) During all phases of response, the department shall make available, upon request, to the trustees of affected natural resources, all available information and documentation that can assist the trustees in the determination of actual or potential natural resource injuries.

(o) If the department determines that public participation activities in addition to those specifically required in section 11-451-13 and section 11-451-15 are appropriate, the department shall conduct or require to be conducted additional public participation activities including but not limited to:

(1) Issuing press releases;

(2) Issuing fact sheets;

(3) Making personal contacts with local officials, community residents, public interest groups, or other interested or affected parties, as appropriate; and

(4) Preparation and implementation of a community relations plan.

(p) Severability. If any provision of this chapter or its application to any person or circumstance is held invalid, the application of such provision to other persons or circumstances and the remainder of this chapter shall not be affected thereby.

Notes

Haw. Code R. § 11-451-8

[Eff. AUG 17 1995] (Auth: HRS §§ 128D-4, 128D-7) (Imp: HRS §§ 128D-4, 128D-7)