Enforcement and Penalties

HRS div. 1, tit. 19, ch. 342B, pt. IV

in effect

HRS §342B-41 Inspection of premises

342B-41. Inspection of premises The director, in accordance with the law, may enter and inspect any building or place to investigate an actual or suspected source of air pollution, to ascertain compliance or noncompliance with this chapter or any rule or standard adopted by the department pursuant to this chapter, or any permit or other approval granted by the department pursuant to this chapter, and to make reasonable tests in connection therewith. No confidential information secured pursuant to this section by any official or employee of the department within the scope and course of the official's or employee's employment in the prevention, control, or abatement of air pollution shall be disclosed by the official or employee except as it relates directly to air pollution and then only in connection with the official's or employee's official duties and within the scope and course of the official's or employee's employment. [L 1992, c 240, pt of §1]

HRS §342B-42 Enforcement

342B-42. Enforcement (a) If the director determines that any person has violated or is violating this chapter, any rule adopted pursuant to this chapter, or any permit issued or variance granted pursuant to this chapter, the director shall serve written notice by certified mail or personal service upon the alleged violator or violators specifying the alleged violation and may include with the notice: (1) An order specifying a reasonable time during which that person shall be required to take such measures as may be necessary to correct the violation and to give periodic progress reports; (2) An order imposing penalties provided in section 342B-48; and (3) An order that the alleged violator or violators appear before the director for a hearing at a time and place specified in the notice or to be set later and answer the charges complained of. (b) If the director determines that any person is continuing to violate this chapter, any rule adopted, permit issued, or variance granted pursuant to this chapter after having been served notice of violation, the director shall serve written notice by certified mail or personal delivery upon the alleged violator or violators specifying the alleged violation. With the notice the director: (1) Shall order the alleged violator or violators 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, permit issued, or variance granted pursuant to this chapter. The director shall accept or modify the submitted schedule 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; (2) Shall order the alleged violator or violators to cease and desist from the activities that violate this chapter, any rule adopted, permit issued, or variance granted pursuant to this chapter, if that person does not submit a written schedule to the director within thirty days. This order shall remain in effect until the director accepts the written schedule; (3) May impose penalties as provided in section 342B-48; and (4) May order the alleged violator or violators to appear before the director for a hearing at a time and place specified in the notice or to be set later and answer the charges complained of. (c) If the director determines that any person has violated an accepted schedule or an order issued pursuant to this section, the director shall impose penalties by sending a notice in writing, either by certified mail or by personal service, to that person, describing such nonadherence or violation with reasonable particularity. (d) Any order issued pursuant to this chapter shall become final, unless not later than twenty days after the notice of violation and order is served, the person or persons named therein request in writing a hearing before the director. Any penalty imposed pursuant to this chapter shall become due and payable twenty days after the notice of penalty is served, unless the person or persons named therein request in writing a hearing before the director. Whenever a hearing is requested on any penalty imposed pursuant to 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 or violators appear before the director for a hearing at the time and place specified in the notice and answer the charges complained of. (e) Any hearing conducted pursuant to 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 or violations have occurred, the director shall affirm or modify any penalties imposed or shall modify or affirm the order previously issued or issue an appropriate order or orders for the prevention, abatement, or control of the violation or emission of air pollutants involved, or for the taking of such 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 a hearing may prescribe timetables for necessary action in preventing, abating, or controlling the violation. (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 has run without such a request; (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. [L 1992, c 240, pt of §1; am L 1993, c 208, §7; am L 1995, c 180, §2]

HRS §342B-43 Emergency powers; procedures

342B-43. Emergency powers; procedures (a) Notwithstanding any other law to the contrary, if the governor or the director determines that an imminent peril to the public health and safety is or will be caused by the release of any air pollutant or combination of air pollutants that requires immediate action, the governor or the director, without a public hearing, may order any person causing or contributing to the release of the air pollutant to immediately reduce or stop the release, and may take any and all other actions as may be necessary. The order shall fix a place and time, not later than twenty-four hours thereafter, for a hearing to be held before the director. (b) Nothing in this section shall be construed to limit any power which the governor or any other officer may have to declare an emergency and act on the basis of such a declaration, if such power is conferred by statute or constitutional provision, or inheres in the office. [L 1992, c 240, pt of §1; am L 1993, c 261, §§2, 4; am L 1995, c 201, §1]

HRS §342B-44 Injunctive and other relief

342B-44. Injunctive and other relief The director may institute a civil action in any environmental court of competent jurisdiction for injunctive and other relief to prevent any violation of this chapter, any rule adopted, condition of a permit, or variance issued pursuant to this chapter, without the necessity of prior revocation of the permit or variance, to impose and collect civil penalties, to collect administrative penalties, or obtain other relief. The environmental court shall have the power to grant relief in accordance with the Hawaii rules of civil procedure. [L 1992, c 240, pt of §1; am L 1995, c 180, §3; am L 2014, c 218, §8]

HRS §342B-45 Citation

342B-45. Citation (a) Any person who violates the vehicular smoke emission rules and open burning control rules adopted by the department pursuant to this chapter may be issued a summons or citation for such violation. Violations of vehicular smoke emission rules and open burning control rules shall constitute a violation as defined in section 701-107 and shall be enforced by police officers. The summons or citation shall be printed in the form hereinafter described, warning the person to appear and answer the charge against the person at a certain place and at a time within seven days of the issuance of the summons or citation. (b) The summons or citation shall be designed to provide for all necessary information. The form and content of such summons or citation shall be adopted or prescribed by the district environmental courts. (c) The original of a summons or citation shall be given to the purported violator and the other copy or copies distributed in the manner prescribed by the district environmental courts; provided that the district environmental courts may prescribe alternative methods of distribution of the original and any other copies. (d) Summonses and citations shall be consecutively numbered and the carbon copy or copies of each shall bear the same number. (e) If any person fails to comply with a summons or citation, the person who issued the summons or citation shall cause a complaint to be entered against the person and secure the issuance of a warrant for the person's arrest. Failure to comply with a summons or citation is a misdemeanor. [L 1992, c 240, pt of §1; am L 1997, c 27, §1; am L 2014, c 218, §8]

HRS §342B-47 Civil penalties

342B-47. Civil penalties (a) Any person who violates the vehicular smoke emission rules adopted by the department pursuant to this chapter shall be fined not less than $25 nor more than $2,500 for each separate offense. Each day of each violation constitutes a separate offense. (b) Any person who violates the open burning control rules adopted by the department pursuant to this chapter shall be fined not more than $10,000 for each separate offense. Each day of each violation constitutes a separate offense. (c) Any person who violates this chapter, any rule adopted pursuant to this chapter, other than vehicular smoke emission control and open burning control rules, any condition of a permit issued or variance granted pursuant to this chapter, or any fee or filing requirement, shall be fined not more than $25,000 for each separate offense. Each day of each violation constitutes a separate offense. (d) Any person who denies, obstructs, or hampers the entrance, inspection, or monitoring 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 and inspect shall be fined not more than $25,000 for each separate offense. Each day of each violation constitutes a separate offense. (e) State of mind shall not be an element of proof for civil violations. [L 1992, c 240, pt of §1; am L 1993, c 208, §8]

HRS §342B-48 Administrative penalties

342B-48. Administrative penalties (a) In addition to any other administrative or judicial remedy provided by this chapter, or by rules adopted pursuant to this chapter, the director is authorized to impose by order the penalties specified in section 342B-47. (b) Factors to be considered in imposing an administrative penalty include: (1) The nature 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; and (5) 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 is on the violator. (d) In any judicial proceeding to recover 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 has run without such a request; (3) The administrative penalty was imposed; and (4) The penalty remains unpaid. [L 1992, c 240, pt of §1; am L 1994, c 268, §4]

HRS §342B-49 Criminal penalties

342B-49. Criminal penalties (a) Any person who knowingly violates any applicable standards or limitations, any condition in a permit issued pursuant to this chapter, any order, any rule, or any fee or filing requirement, shall be punished by a fine of not more than $25,000 for each day of each violation or by imprisonment not to exceed five years, or both. (b) Any person who knowingly makes any false statement, representation, or certification in any form, in any notice or report required by a permit, or who knowingly renders inaccurate any monitoring device or method required by the department to be maintained by the person pursuant to this chapter, or who fails to report as required by this chapter, shall be punished by a fine of not more than $25,000 for each day of each violation or by imprisonment for not more than two years, or both. (c) Any person who negligently releases into the ambient air any hazardous air pollutant or extremely hazardous substance and who at the time negligently places another person in imminent danger of death or serious bodily injury shall be punished by a fine of not more than $25,000 for each day of each violation, or imprisonment for not more than one year, or both. If a conviction of any person under this subsection is for a violation committed after a first conviction of the person under this subsection, the maximum punishment shall be doubled with respect to both the fine and imprisonment. (d) Any person who knowingly releases into the ambient air any hazardous air pollutant or extremely hazardous substance and who knows at the time that another person is thereby placed in imminent danger of death or serious bodily injury shall be punished by a fine of not more than $25,000 for each day of each violation, or imprisonment for not more than fifteen years, or both. Any organization which violates this subsection shall be subject to a fine of not more than $1,000,000. If a conviction of any person under this subsection is for a violation committed after a first conviction of the person under this subsection, the maximum punishment shall be doubled with respect to both the fine and imprisonment. [L 1992, c 240, pt of §1; am L 1993, c 208, §9]

HRS §342B-50 Disposition of collected fines and penalties

342B-50. Disposition of collected fines and penalties Fines and penalties collected under sections 342B-47, 342B-48, and 342B-49 shall be deposited into the environmental response revolving fund established by section 128D-2. L 1992, c 240, pt of §1

HRS §342B-51 Enforcement by state and county authorities

342B-51. Enforcement by state and county authorities All state and county health authorities and police officers shall enforce this chapter and the rules, orders, and permits of the department. L 1992, c 240, pt of §1

HRS §342B-52 Nonliability of department personnel

342B-52. 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 done by the member, officer, or employee in the performance of the member's, officer's, or employee's duties; provided that this section shall not apply to violations of section 342B-31. [L 1992, c 240, pt of §1]

HRS §342B-53 Other action not barred

342B-53. Other action not barred No existing civil or criminal remedy for any wrongful action which is a violation of any statute or any rule of the department or the ordinance of any county shall be excluded or impaired by this chapter. L 1992, c 240, pt of §1

HRS §342B-54 Priority in courts

342B-54. Priority in courts All actions brought pursuant to this chapter or pursuant to the rules adopted under this chapter or pursuant to the conditions of a permit issued under this chapter shall in the discretion of the court receive priority in the courts of the State. Note The amendment made by L 2014, c 218, §8 is not included in this section. L 1992, c 240, pt of §1

HRS §342B-55 Consent orders; settlement agreements

342B-55. Consent orders; settlement agreements Notwithstanding section 342B-13, at least thirty days before a consent order or settlement agreement of any kind under this chapter to which the director or the State is a party is final or filed with [an] environmental court, the director shall provide public notice and an opportunity for the public to comment. The director shall promptly consider any written comments and may withdraw or withhold consent to the proposed order or agreement if the comments disclose facts or considerations which indicate that the consent is inappropriate, improper, inadequate, or inconsistent with the requirements of this chapter. Nothing in this section shall apply to civil or criminal penalties under this chapter. [L 1992, c 240, pt of §1; am L 1993, c 208, §10; am L 2014, c 218, §8]

HRS §342B-56 Citizen suits

342B-56. Citizen suits (a) After June 30, 1995, any person may commence a civil action on that person's own behalf against: (1) Any person (including the State and the director) who is alleged to be in violation of this chapter, including any emission standard or limitation or any order issued by the director; (2) The director where there is alleged a failure to perform any act or duty under this chapter which is not discretionary; or (3) Any person who proposes to construct or constructs any new or modified major emitting facility without a required permit or who is alleged to be in violation of any condition of such permit. This subsection shall not apply before April 1, 1996 to violations of permits related to agricultural burning; provided further that the governor may extend this deadline for an additional three months. (b) The circuit environmental court shall have jurisdiction to: (1) Enforce such an emission standard or limitation, or an order; (2) Order the director to perform such act or duty; and (3) Apply any appropriate civil penalties. (c) No action may be commenced: (1) Under subsection (a)(1): (A) Prior to sixty days after the plaintiff has given notice of the violation to (i) the director, (ii) the department, and (iii) any alleged violator of the standard, limitation, or order; or (B) If the director or the department has commenced and is diligently prosecuting a civil action to require compliance with the standard, limitation, or order, but in any such action any person may intervene as a matter of right; or (2) Under subsection (a)(2) prior to sixty days after the plaintiff has given notice of such action to the director. Notice under this subsection shall be given in such [manner] as the director shall prescribe by rule. (d) Any action respecting a violation by a stationary source of an emission standard or limitation or an order respecting such standard or limitations may be brought only in the judicial circuit in which such source is located. (e) In any action under this section, the director, if not a party, may intervene as a matter of right at any time in the proceeding. (f) The environmental court, in issuing any final order in any action brought pursuant to this section, may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the environmental court determines such award is appropriate. The environmental court, if a temporary restraining order or preliminary injunction is sought, may require the filing of a bond or equivalent security in accordance with the Hawaii rules of civil procedure. (g) Nothing in this section shall restrict any right which any person may have under any constitutional provision, statute, or common law to seek enforcement of any emission standard or limitation or to seek any other relief. (h) Penalties received under subsection (b) shall be deposited into the clean air special fund established by section 342B-32. These amounts shall remain available to finance air compliance and enforcement activities. The environmental court shall have discretion to order that such civil penalties, in lieu of being deposited in the fund, be used in beneficial mitigation, education, or protection projects which enhance public health or the environment. [L 1992, c 240, pt of §1; am L 1995, c 180, §4; am L 1996, c 13, §6; am L 2014, c 218, §8]

Source: Hawaii State Legislature (capitol.hawaii.gov), via Internet Archive capturesURL: http://www.capitol.hawaii.gov/hrscurrent/Vol06_Ch0321-0344/HRS0342B/HRS_0342B-.htmFetched: 11/10/2026