Little Cause for Cheer At Close Of 1991 Session

posted in: August 1991 | 0

Environment Hawai`i previewed the 1991 legislative session in our February edition (scroll down on the linked page to see article listings and links). Several of the measures discussed then were passed and have been signed into law by the governor without crippling amendments. Among them were bills to establish a statewide framework for dealing with solid waste and recycling efforts and to protect environmentally valuable lands in private ownership management plans. The perennial bill to give eels entry visas to the state died, bludgeoned to death by conservationists for the nth time. Bills to restore initiative petition rights on land use questions continued to be blocked by well-financed industry organizations parading around as grass-roots groups.

Here is our recap of several of the more important results of legislative action or inaction in 1991:

Solar Energy

The Legislature brushed its courage past the sticking place in approving a bill to require that all houses built with state funds, on property provided by the state, or otherwise helped with state money, be equipped with solar water heaters. The requirement was not universal. Exceptions were provided for houses sited in areas where “the proximity of buildings, ridges, trees, or other local conditions” made solar water heating “ineffective or impracticable”; multi-unit buildings; projects developed on behalf of the Hawai’i Housing Authority; and projects developed by private non-profit corporations.

The exceptions were not sufficient to satisfy Governor Waihe`e. He vetoed the bill, siding squarely with the arguments of its only opponent, Pacific Resources, Inc.

Superfund

To David Frankel, representing the Sierra Club Hawai’i Chapter, belongs much, if not indeed all, of the credit for staying the course on Hawai`i’s Environmental Response Law, better known as the Superfund law. Some of the changes:

Failure to report releases of hazardous substances is now subject to civil penalties (up to $10,000 per day of violation) or possible criminal misdemeanor charges. Previously, the law provided for imprisonment of up to three years for first violators and for up to five for repeat violators. Now there is only the threat that violators maybe “subject to prosecution for a criminal misdemeanor.”

A similar tradeoff can be seen in revisions to language dealing with people who knowingly release hazardous substances into the environment. Before, fines could be imposed of between $5,000 and $50,000 per day of violation or by imprisonment of up to three years, or both, with stiffer penalties for repeat violators. The new language states that violators “shall be subject to prosecution for a class C felony” or subject to civil fines – with the minimum of $5,000 now eliminated, but the maximum fine raised to $100,000 per day of violation. Repeat violators face no harsher treatment than first-time offenders in the new law.

One of the more significant revisions is that criminal penalties now apply only to managers or supervisors. Ordinary employees are exempt.

In any event, don’t expect the jails to be filled overnight with environmental villains. The law does not allow any criminal penalties to take effect until the state contingency plan has been adopted. (In the final committee report, the Department of Health is instructed to adopt the plan by December 31, 1992.)

The new Superfund provides for citizens to sue, under certain conditions (although not until two years from now). But no citizen may sue if the state has taken even the most minimal action on its own, including commencement of an investigation. Nor do citizens have any legal right under this law to challenge compromises or settlements worked out between the director of health and violators.

The application of pesticides is still exempt from regulation under this law, although now there is the qualification that pesticides must be applied in a legal manner in order for the exemption to be valid. Additionally, the “shoot first, ask questions later” provisions of the law have been eliminated. Now any party who is ordered by the director of health to clean up a spill may seek court review of that order at anytime, provided only that they are in compliance with the clean-up order.

Amendments to the state’s law regulating hazardous waste were also passed. Most of these were needed before the Environmental Protection Agency would agree to let the state enforce or administer its own hazardous waste program. A major addition is a section allowing citizens to sue for enforcement. This provision was approved, however, subject to a five-year “drop-dead” clause. If the Legislature does not remove that clause, the citizen suit provision will automatically be repealed December 31, 1996.

A New Department?

The Legislature passed, and the governor signed a bill that could lead to the establishment of a new Department of Environmental Protection. Under Act 293-91, the governor is to appoint a task force to help prepare an organizational and functional plan for the department, for submittal to the Legislature. If legislation to establish the new department is not enacted next year, Act 293 will automatically be repealed July 1, 1992.

No number of members for the task force has been set, but it is to include people from state agencies, the Environmental Center at the University of Hawai’i, and “organizations representing the environment, business, and tourism.”

Another jurisdictional question was settled with approval of a bill transferring regulation recreational boating and coastal activities from Department of Transportation to the Department of Land and Natural Resources. The transfer is to take effect July 1, 1992.

Volume 2, Number 2 August 1991

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