Voluntary Response Program

HRS div. 1, tit. 10, ch. 128D, pt. II

in effect

HRS §128D-31 [General provisions.] (a) Except as otherwise provided in this part, all requirements of rules adopted pursuant to part I shall apply to voluntary response actions conducted pursuant to this part. All voluntary response actions, where an exemption from liability may be granted by the department, shall follow the public participation requirements of the remedial process as described in rules adopted pursuant to part I.

128D-31. [General provisions.] (a) Except as otherwise provided in this part, all requirements of rules adopted pursuant to part I shall apply to voluntary response actions conducted pursuant to this part. All voluntary response actions, where an exemption from liability may be granted by the department, shall follow the public participation requirements of the remedial process as described in rules adopted pursuant to part I. (b) Additionally, within ten days of receiving an application and processing fee, the department shall: (1) Post a sign at the site notifying the public of participation in the voluntary response program, the public's opportunity to comment, and how a copy of the application may be obtained; and (2) Send a brief summary of the application to the office of planning and sustainable development for publication in the office's bulletin along with instructions for obtaining a copy of the application and commenting procedures to the department. The comment period shall run concurrently with and shall not delay the application process. (c) This part shall apply to any person who chooses to conduct a voluntary response action. However, the exemption from liability in section 128D-40 shall only apply to prospective purchasers. [L 1997, c 377, pt of §2; am L 1998, c 233, §1; am L 2021, c 152, §16 and c 153, §9]

HRS §128D-32 Definitions

128D-32. Definitions As used in this part, unless the context otherwise requires: "Prospective purchaser" means a prospective owner, operator, tenant, developer, lender, or any other party who would not otherwise be liable under section 128D-6, prior to a voluntary response action being conducted. "Requesting party" means the person or persons submitting an application to conduct a voluntary response action. "Voluntary response action" means a response conducted voluntarily by a requesting party. [L 1997, c 377, pt of §2; am L 2005, c 133, §2]

HRS §128D-33 Eligibility

128D-33. Eligibility (a) This part shall apply to all releases or threats of releases to which the director is authorized to respond under section 128D-4, except: (1) A site listed or proposed to be listed on the National Priorities List (NPL) pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA); (2) Those sites with respect to which an order or other enforcement actions has been issued or entered under CERCLA and is still in effect; (3) A site where the United States Coast Guard has issued a federal Letter of Interest; (4) A site that is subject to corrective action under Subtitle C of the Resource Conservation and Recovery Act (RCRA) or chapter 342J; and (5) A site that poses an imminent and substantial threat to human health, the environment, or natural resources as determined by the director. (b) The requesting party shall provide the department with written consent from the property owner to conduct the voluntary response action including any restrictions of property rights. (c) The requesting party shall pay a nonrefundable processing fee of $1,000 with each application to be eligible for a voluntary response action. [L 1997, c 377, pt of §2; am L 1998, c 233, §2]

HRS §128D-34 Application

128D-34. Application (a) For each site at which a requesting party chooses to conduct a voluntary response action, an application and $1,000 nonrefundable processing fee shall be submitted. In the case of a requesting party that is a public or nonprofit agency, the director may reduce or waive this fee if the director deems it to be in the public interest. (b) The department shall review each application in a timely manner and approve or deny the application based upon the requirements in this section and sections 128D-33 and [128D-35]. (c) Each application shall include but not be limited to the following information: (1) The requesting party's name, mailing address, telephone number, facsimile number, if applicable, or electronic mail address; (2) The property owners' names, mailing addresses, telephone numbers, facsimile numbers, if applicable, or electronic mail addresses; (3) The property location, mailing address, street or physical location address, latitude and longitude, tax map key numbers, and telephone number for the requesting party; (4) A brief description of the site, its operational history, and any known or suspected contamination; (5) A listing of any permits obtained by any facility on the property; (6) A description of the intended scope of work; (7) A description of any civil, criminal, or administrative actions relative to the environmental matters of the subject property; (8) A written consent by the property owner supporting the proposed voluntary response action including any restrictions of property rights; and (9) The signature of the requesting party. (d) The requesting party shall provide the department with any and all reports and data pertaining to environmental investigations or response actions on the subject property. (e) Within sixty days after initial approval of the application, the requesting party and the department shall negotiate an agreement for conducting the voluntary response action. The agreement shall contain guarantees of completion, such as letters of credit, personal guarantees, insurance, or similar measures of guarantee. If, after sixty days, an agreement cannot be negotiated in good faith, the department may deny the application. (f) The department's decision on an application shall be final, with no right of appeal. [L 1997, c 377, pt of §2; am L 2005, c 133, §3]

HRS §128D-35 Denial of application

128D-35. Denial of application (a) The director may deny an application submitted under section 128D-34. In denying an application, the director may consider the following: (1) The nature and extent of any past, current, or future actions by the department regarding the proposed site and the impact the voluntary response action might have on these past, current, or future actions; (2) Site eligibility based on the criteria in section 128D-33; (3) Completeness and accurateness of the application: (A) If an application is denied because it is incomplete or inaccurate, the director, not later than forty-five days after receipt of the application, shall identify the omission or inaccuracy for the requesting party. A requesting party whose application has been denied because it is incomplete or inaccurate, may resubmit an application for the same response action without submitting an additional application fee; and (B) If a requesting party's application is denied a second time, the director may require an additional $1,000 processing fee for any subsequent submittal; (4) Inappropriate or inadequate scope of work; (5) Pending litigation; (6) The capacity of the requesting party or the requesting party's agent to carry out the response action properly; (7) Whether the public will receive substantial benefit from the cleanup, including but not limited to environmental improvement and economic development; (8) Whether the continued operation of the site or new site development, with the exercise of due care, will aggravate or contribute to the existing contamination or interfere with the department's response action; (9) Whether the continued operation or new development of the property will pose health risks to the community and those persons likely to be present at the site; or (10) The financial viability of the prospective purchaser. (b) If the director finally denies the application, the director shall: (1) Notify the requesting party that the application has been denied; and (2) Explain the reasons for denial of the application. [L 1997, c 377, pt of §2; am L 1998, c 233, §3]

HRS §128D-36 Funding

128D-36. Funding (a) The department shall establish an account, to be called the voluntary response action account, within the environmental response revolving fund pursuant to section 128D-2, for the purpose of administration and oversight of this part. (b) The $1,000 nonrefundable application fee shall be deposited into the voluntary response action account. (c) Upon initial approval of an application, the department may require a deposit of up to $5,000 to initiate a site-specific account. The department may require an additional deposit of up to $5,000, whenever the balance of the site-specific account falls below $1,000. (d) If a site-specific account balance is inadequate to support oversight, the department may discontinue oversight on the voluntary response action. The department may pursue enforcement action against the requesting party and any other person liable under section 128D-6, pursuant to part I of this chapter, when an account balance is inadequate to support further oversight by the department. (e) At the completion of the voluntary response action, or at the termination of the agreement, except when the voluntary response action requires continuing oversight, the department shall provide a final accounting of the site-specific account and return the balance to the requesting party. [L 1997, c 377, pt of §2; am L 2005, c 133, §4]

HRS §128D-37 Oversight costs

128D-37. Oversight costs (a) The department's oversight costs shall be calculated at $100 for each hour of staff time plus actual expenses incurred or one hundred twenty-five per cent of actual cost when contracting for oversight services. If a requesting party is a public or nonprofit agency, the director may reduce or waive this fee if the director deems it to be in the public interest. (b) The department shall provide each requesting party or parties a summary of the oversight costs for the party's specific site on an annual basis. [L 1997, c 377, pt of §2; am L 2005, c 133, §5]

HRS §128D-38 Exempt positions

128D-38. Exempt positions There are established such positions as necessary to support the voluntary response program and other voluntary activities pursuant to this chapter. These positions shall be appointed by the director without regard to chapter 76. These positions shall be included in any benefit program generally applicable to the officers and employees of the State. [L 1997, c 377, pt of §2; am L 2000, c 253, §150; am L 2005, c 133, §6]

HRS §128D-39 Letter of completion

128D-39. Letter of completion (a) Within thirty days of satisfactory completion of the voluntary response action, the director shall issue a letter of completion for the response action completed by the requesting party. (b) The letter of completion shall identify the specific hazardous substances, pollutants, contaminants, media, and land area addressed in the response action. (c) If contamination is left on the site, the letter of completion shall specify terms and conditions necessary to protect the public health and environment. (d) The letter of completion shall be noted on the property deed and shall be sent to the county agency that issues building permits. The exemption from future liability and other benefits and restrictions identified in the letter of completion shall run with the land and apply to all future owners of the property. The exemption from liability noted in section 128D-40 shall not apply to those persons who were liable pursuant to section 128D-6 prior to conducting the voluntary response action. [L 1997, c 377, pt of §2; am L 1998, c 233, §4; am L 2005, c 133, §7]

HRS §128D-40 Exemption from liability

128D-40. Exemption from liability (a) To qualify for an exemption from liability, a requesting party that is also a prospective purchaser shall enter into a voluntary response agreement with the department prior to becoming the owner or operator of the property that is the subject of the agreement. (b) Prospective purchasers who complete a voluntary response action and receive a letter of completion from the department are exempt from future liability to the department for those specific hazardous substances, pollutants, contaminants, media, and land area addressed in the voluntary response action and specified in a letter of completion from the department. Prospective purchasers of property for which an owner has completed a voluntary response action and received a letter of completion from the department are exempt from future liability to the department for those specific hazardous substances, pollutants, contaminants, media, and land area addressed in the voluntary response action and specified in the letter of completion issued to the party who conducted the voluntary response action. (c) The exemption from future liability to the department referenced in subsection (b) applies only to those specific hazardous substances, pollutants, and contaminants cleaned up to a risk-based standard of not more than one total lifetime cancer risk per one million and only to the specific media and land area addressed in the voluntary response action; provided that the exemption only applies to the contamination which occurred prior to conducting the voluntary response action. (d) A party who is exempt from future liability to the department under subsections (b) and (c) shall not be liable for claims for contribution or indemnity regarding matters addressed in the voluntary response action. (e) The department reserves the right to take action consistent with this chapter against responsible parties. (f) The exemption from liability shall not be effective: (1) If a letter of completion is acquired by fraud, misrepresentation, or failure to disclose material information; (2) Where transactions were made for the purpose of avoiding liability under part I; or (3) If a prospective purchaser fails to comply with the terms and conditions specified in the letter of completion. (g) There shall be no exemption from liability for other laws or requirements. [L 1997, c 377, pt of §2; am L 1998, c 233, §5; am L 2005, c 133, §8]

HRS §128D-41 Termination of voluntary response action

128D-41. Termination of voluntary response action (a) An agreement under this part may be terminated by the requesting party at any time. (b) The director may terminate an agreement pursuant to this section when: (1) There is an imminent and substantial threat to public health, the environment, or natural resources; (2) The requesting party is not acting in good faith; (3) Inadequate funds remain in the site-specific account; (4) An applicant becomes ineligible after initiating the action pursuant to sections [128D-33] and [128D-35]; (5) An applicant fails to comply with the terms of the agreement noted in section [128D-34(e)]; or (6) The draft remedial action is inadequate. (c) Termination of the agreement pursuant to this section does not affect any right the director may have under any law to recover costs or to take enforcement action. (d) Nothing in this part prohibits the department from taking enforcement action prior to completion of the voluntary response action. Furthermore, the director may, at any time, use the director's authority under section 128D-4 when it is deemed necessary. [L 1997, c 377, pt of §2]

Source: Hawaii State Legislature (capitol.hawaii.gov), via Internet Archive capturesURL: http://www.capitol.hawaii.gov/hrscurrent/Vol03_Ch0121-0200D/HRS0128D/HRS_0128D-.htmFetched: 11/10/2026