Judicial review
HRS §128D-17
in effect128D-17. Judicial review
(a) Any person who receives and complies with the terms of any order issued under this chapter may bring and maintain an action in the circuit environmental court to review the order as provided for in this section, prior to the completion of all action required in this order, provided that the person shall not seek any form of injunctive relief and at all times is in compliance with the order.
(b) The director's order may be issued without
a hearing and shall be supported by an administrative record consisting of the
documents and other papers and materials considered by the director in issuing
the order. The order shall be effective immediately unless it provides
otherwise. The person receiving the order may supplement the administrative
record with other documents, writings, or material within thirty days after
receipt of the order. In the sole discretion of the director, the
administrative record may be supplemented further by a proceeding in which
testimony and other evidence may be received. A person aggrieved by the order
who is and continues to be in compliance with the order may petition the circuit
environmental court for an expedited review of the order after service of a
certified copy of the order. The review by the environmental court shall be
confined to the administrative record. The environmental court shall, upon
request by any party, hear oral arguments and receive written briefs.
Discovery shall not be permitted. The environmental court shall affirm the
order or, if it finds that the order is arbitrary and capricious, it shall
reverse or modify the order. The environmental court's order in any expedited
review shall be without prejudice to any party in any other proceeding.
(c) In an expedited review of the director's
order concerning the determination that the aggrieved party is subject to
liability under this chapter, the environmental court shall affirm the order
unless it is clearly shown to be arbitrary and capricious.
(d) If the environmental court reverses the
director's determination that the objecting party is subject to liability under
this chapter, the environmental court shall vacate the order of the director in
its entirety and award the objecting party reimbursement from the fund, or if
sufficient funds are not available, then from the State, of all costs incurred
in complying with the order, which may include the party's reasonable
attorney's fees.
(e) In reviewing a director's order under this
section, the environmental court shall uphold the director's decision on
technical issues, including the nature and scope of the action ordered, unless
the objecting party demonstrates, based on the administrative record, that the
decision is arbitrary and capricious.
(f) If the environmental court finds that the
director's order is arbitrary and capricious under subsection (e), the environmental
court shall issue findings of fact and conclusions of law sufficient to advise
the parties of the deficiencies in the order. The environmental court shall
thereafter allow the contesting parties a thirty-day period following the entry
of its findings of fact and conclusions of law to agree to mutually acceptable
technical modifications to the challenged order. However, if the contesting
parties are unable to reach agreement within the thirty-day period, then the
parties shall notify the environmental court and each party shall select a
technical panel member in accordance with subsection (g) at the conclusion of
the thirty-day period. The environmental court shall order that the
outstanding issues be submitted to a technical panel for binding resolution of
the issues identified by the environmental court in a manner consistent with
the environmental court's findings and conclusions, and the state contingency
plan.
(g) The technical panel shall consist of three
members, each of whom shall have expertise in engineering, or expertise in the
physical, chemical, biological, or health sciences.
(h) A majority of the technical panel members
shall determine an appropriate resolution to the technical issues identified by
the environmental court in the period of time the environmental court orders.
The technical panel members shall be selected as follows:
(1) One member shall be selected by the director;
(2) One member shall be selected by the objecting
party, or a majority of the objecting parties challenging the order; and
(3) The foregoing two members shall select the third
member of the panel within thirty days of their selection.
(i) After making a decision that resolves the
technical issues, the technical panel shall submit its final decision to the environmental
court. The environmental court shall vacate the order found arbitrary and
capricious and enter an order adopting the decision submitted by the technical
panel unless the environmental court finds that:
(1) The decision is not consistent with the environmental
court's findings of fact and conclusions of law and the state contingency plan;
(2) The decision was procured by corruption, fraud, or
undue means;
(3) There was evident partiality or corruption in the
panel, or any of the members;
(4) The panel was guilty of misconduct by which the
rights of any party have been prejudiced; or
(5) The panel exceeded its powers or so imperfectly
executed them that a mutual, final, and definite decision upon the subject
matter submitted was not made.
(j) Any action for concurrent review under
this section shall have priority on the civil trial calendar of the circuit
environmental court.
(k) The petitioner, in any action pursuant to
section 128D-19, may seek judicial review of any partial or complete denial of
the petition. The review shall be conducted pursuant to section 91-14. In
addition to any other relief that may be awarded, the environmental court may
award to the petitioner reimbursement from the fund, or if there are
insufficient funds then from the State, which may include appropriate costs,
fees, and other expenses, including reasonable attorney's fees.
(l) In reviewing alleged procedural errors,
the environmental court may disallow costs or damages only if the errors were
so serious and related to matters of such central relevance to the action that
the action would have been significantly changed had the errors not been
committed.
[L 1990, c 298, pt of §17; am L 1991, c 280, §15; am L 2014, c 218, §8]
Source: Hawaii State Legislature (capitol.hawaii.gov), via Internet Archive capturesURL: http://www.capitol.hawaii.gov/hrscurrent/Vol03_Ch0121-0200D/HRS0128D/HRS_0128D-0017.htmFetched: 11/10/2026