1. (a) In the event of a petroleum release from an underground storage tank or tank system, which occurs prior to the adoption of rules for response to suspected or confirmed releases pursuant to section 342L-35, the department may:

   1. (1) Issue an order requiring the owner or operator of an underground storage tank or tank system to undertake response action as is necessary to protect human health or the environment and fixing a place and time, not later than twenty-four hours thereafter, for a hearing to be held before the director; or

   2. (2) Undertake response action by itself or by contract as is necessary to protect human health or the environment.

      The department shall use moneys from the fund to pay for costs incurred in undertaking or compelling a response action pursuant to this subsection.

      The department shall assign priority in undertaking response actions, pursuant to this subsection, to cases in which the department cannot identify, within the time necessary to protect human health or the environment, a solvent owner or operator of the tank or tank system, or even if able to identify such a person, has cause to believe that the person cannot or will not properly undertake a response action.

2. (b) In the event of a petroleum release from an underground storage tank or tank system, which occurs after the adoption of rules for response to suspected or confirmed releases pursuant to section 342L-35, the department may take all actions and issue such orders as are described in subsection (a), which are in conformity with the rules; provided that the department may undertake response actions with respect to any release of petroleum into the environment from an underground storage tank or tank system only if the department finds the action to be necessary to protect human health or the environment and one or more of the following conditions exists:

   1. (1) No person can be found, within ninety days or such shorter period as may be necessary to protect human health or the environment who is:

      1. (A) An owner or operator of the tank or tank system;
      2. (B) Subject to the response action rules; and
      3. (C) Capable of carrying out the response action properly;
   2. (2) Prompt action by the department is required to protect human health or the environment;
   3. (3) Anticipated costs of the response action at a facility will exceed the amount of financial responsibility coverage required by the department and, considering the class or category of tank or tank system from which the release occurred, the director determines that expenditures from the fund are necessary in order to assure effective response action; or

   4. (4) The owner or operator of the tank or tank system has failed or refused to comply with a federal order issued pursuant to either section 9003 or 9006 of the federal Resource Conservation and Recovery Act or with an order issued pursuant to this section or section 342L-8 or 342L-9 to comply with the rules on response to suspected or confirmed releases.

      The department shall assign priority in undertaking response actions pursuant to this subsection and in issuing orders requiring owners or operators to undertake response actions to those cases involving releases of petroleum from underground storage tanks or tank systems that pose the greatest threat to human health or the environment.

3. (c) The department is authorized to issue orders to the owner or operator of an underground storage tank or tank system to comply with rules adopted under section 342L-35.
4. (d) Response actions undertaken by the department may include the temporary or permanent relocation of residents and the provision of alternative household water supplies.
5. (e) In connection with the performance of any response action, the department may undertake an exposure assessment. A response action to abate immediate hazards or reduce exposure shall not be delayed in order to complete any exposure assessment. The costs of any such assessment may be deemed to have been incurred in undertaking the response action.
6. (f) Except as provided in this subsection, in order to protect human life, at any facility whose owner or operator has failed to maintain evidence of financial responsibility in amounts at least equal to the amounts established pursuant to section 342L-36, the department shall expend no moneys from the fund to respond to releases at the facility pursuant to subsections (a) and (b). At these facilities the department may use the authority provided in this chapter to order a response action to these releases. The department may use moneys from the fund to take a response action if necessary to protect human health at these facilities and shall seek full recovery of the costs of all such actions. Nothing in this subsection shall prevent the department from taking a response action at a facility where there is no solvent owner or operator or where immediate action is necessary to respond to an imminent and substantial endangerment of human health or the environment.

[L 1989, c 212, pt of §6; am L 1992, c 259, §31]

Cross References

Environmental response law, see chapter 128D.

Hawaii emergency planning and community right-to-know act, see chapter 128E.