Bill Text: HI SB139 | 2011 | Regular Session | Introduced
Bill Title: Hazardous Substances; Developer Liability
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2011-02-08 - (S) The committee on ENE deferred the measure. [SB139 Detail]
Download: Hawaii-2011-SB139-Introduced.html
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THE SENATE |
S.B. NO. |
139 |
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TWENTY-SIXTH LEGISLATURE, 2011 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
relating to developer liability.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. Chapter 128D, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§128D- Developer liability. (a) Notwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsections (c) and (d), a developer shall be strictly liable for the following costs resulting from exposure of any person, property, or natural resources to a hazardous substance as a result of the developer's activities:
(1) All costs of removal or remedial actions incurred by the State or any other person to the extent that the costs incurred and the actions taken are consistent with this chapter, the state contingency plan, and any other state rules;
(2) Damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing the injury, destruction, or loss resulting from exposure to hazardous substances; and
(3) The costs of any health assessment or health effects study carried out consistently with this chapter, the state contingency plan, or any other state rules.
(b) The amounts recoverable in an action under this section shall include interest on the amounts recoverable under subsection (a); provided that interest shall accrue from the later of the date that payment of a specified amount is demanded in writing, or the date of the expenditure concerned. The rate of interest on the outstanding unpaid balance of the amounts recoverable under this section shall be the same rate as is specified for interest on investments of the State's fund.
(c) There shall be no liability under subsection (a) for a developer who would otherwise be liable if the developer can establish by a preponderance of the evidence that exposure of persons, property, or natural resources to a hazardous substance and the resulting damages were caused solely by:
(1) An unanticipated grave natural disaster or other natural phenomenon of an exceptional, inevitable, and irresistible character, the effect of which could not have been prevented or avoided by the exercise of due care or foresight;
(2) An act of war; or
(3) An act or omission of a third party other than an employee of the developer, an agent of the developer, or a person whose act or omission occurs in connection with a direct or indirect contractual relationship with the developer; provided that the developer establishes by a preponderance of the evidence that the developer:
(A) Exercised due care with respect to the hazardous substance concerned, taking into consideration the characteristics of the hazardous substance and all relevant facts and circumstances; and
(B) Took precautions against the foreseeable acts and omissions of the third party and the consequences that could foreseeably result.
(d) There shall be no liability under subsection (a) where the developer is able to establish by a preponderance of the evidence that the developer acquired the real property on which the hazardous substance is located after the disposal or placement of the hazardous substance on, in, or at the property and exposure to the hazardous substance:
(1) Is the result of an act or omission of a third party other than an employee of the developer, an agent of the developer, or a person whose act or omission occurs in connection with a direct or indirect contractual relationship with the developer; provided that the developer establishes by a preponderance of the evidence that the developer:
(A) Exercised due care with respect to the hazardous substance concerned, taking into consideration the characteristics of the hazardous substance and all relevant facts and circumstances; and
(B) Took precautions against the foreseeable acts and omissions of the third party and the consequences that could foreseeably result; and
(2) At least one of the following circumstances applies:
(A) At the time the developer acquired the property, the developer did not know and had no reason to know that any hazardous substance which is the subject of the exposure was disposed on, in, or at the property; provided that at the time of acquisition, the developer undertook all appropriate inquiry into the previous ownership and uses of the property consistent with good commercial or customary practice in an effort to minimize liability taking into account any specialized knowledge or experience on the part of the developer, the relationship of the purchase price to the value of the property if uncontaminated, commonly known or reasonably ascertainable information about the property, the obviousness of the presence or likely presence of hazardous substance on, in, or at the property, and the ability to detect the hazardous substance by appropriate inspection;
(B) The developer is a government entity that acquired the facility by escheat, through any other involuntary transfer or acquisition, or through the exercise of eminent domain authority by purchase or condemnation;
(C) The developer acquired the property by inheritance or bequest;
(D) At the time the developer acquired the facility, the developer was a bona fide prospective purchaser; or
(E) The developer is a contiguous property owner, as described in subsection (k).
(e) Subsection (d) and paragraph (c)(3) shall not diminish the liability of any previous owner or developer of a property who would otherwise be liable under this chapter. If a developer obtains actual knowledge of the presence of a hazardous substance on, in, or at a property while the developer owns the property and the developer subsequently transfers ownership of the property to another person without disclosing that knowledge, the developer shall be liable under subsection (a) and no defense under paragraph (c)(3) shall be available to the developer.
Nothing in subsection (d) shall affect the liability under this section of a developer who, by any act or omission, caused or contributed to the exposure to a hazardous substance which is the subject of an action relating to the property.
(f) No person shall be liable under this section or otherwise under the laws of the State or any of the counties, including the common law, to any government or private parties for costs, damages, or penalties as a result of actions taken or omitted in the course of rendering care, assistance, or advice in compliance with this chapter, the National Contingency Plan, or at the direction of a federal or state on-scene coordinator, with respect to an incident creating a danger to public health or welfare or the environment as a result of any exposure or threat of exposure to a hazardous substance or pollutant or contaminant; provided that this subsection shall not preclude liability for costs, damages, or penalties resulting from gross negligence or intentional misconduct.
(g) No county or local government shall be liable under this section for costs or damages as a result of actions taken in response to an emergency created by the exposure or threat of exposure to a hazardous substance, pollutant, or contaminant present on, in, or at a property owned by a developer; provided that this subsection shall not preclude liability for costs or damages as a result of gross negligence or intentional misconduct by the county or local government.
(h) No indemnification, hold harmless, or similar agreement or conveyance shall be effective to transfer the liability imposed by this section from the developer of any real property or from any person who may be liable under this section for an exposure or threat of exposure to a hazardous substance to any other person; provided that this subsection shall not bar any agreement or contract with an insurer as defined by section 431:1-202 to insure, hold harmless, or indemnify a party to an insurance contract for any liability under this section. Nothing in this section shall bar a cause of action that a developer, any other person subject to liability under this section, or a guarantor has or would have, by reason of subrogation or otherwise against any person.
(i) In the case of an injury to, destruction of, or loss of natural resources under subsection (a), liability shall be solely to the State for natural resources within the State or belonging to, managed by, controlled by, or appertaining to the State. The natural resource trustee for the State shall act on behalf of the public as trustee of the natural resources to recover for damages. Sums recovered by the natural resource trustee under this subsection shall not be limited by the sums which can be used to restore or replace the resources. Any damages recovered by the state attorney general for damages to natural resources shall be deposited in the fund and credited to a special account for the purposes of this subsection.
No liability shall be imposed under this section, where the developer has demonstrated that the subject damages to natural resources were specifically identified as an irreversible and irretrievable commitment of natural resources in an environmental impact statement or other comparable environmental analysis, the decision to grant a permit or license for the developer's activities authorizes that commitment of natural resources, and the developer was otherwise operating within the terms of its permit or license. There shall be no double recovery under this section for natural resource damages, including the costs of damage assessment or restoration, rehabilitation, or acquisition for damages to the same natural resources caused by any one exposure to hazardous substances. Notwithstanding any other provision of this section, there shall be no recovery under this section for natural resource damages where the damages occurred wholly before July 1, 1990.
(j) No person other than a government entity may recover costs or damages under this section arising from an exposure to hazardous substances which occurred before July 1, 1990.
(k) A person shall not be liable under this section if the person is engaged in the development of real property that is or may be contaminated by a hazardous substance because of an exposure that occurred at a property that is contiguous to or otherwise similarly situated with respect to the person's property if the person establishes by a preponderance of the evidence that:
(1) The person did not cause, contribute to, or consent to the exposure or threatened exposure;
(2) The person is not potentially liable or affiliated with any other person who is potentially liable for response costs through any direct or indirect familial relationship or any contractual, corporate, or financial relationship other than one created by a contract for the sale of goods or services, or as a result of a reorganization of a business entity that was potentially liable;
(3) The person took reasonable steps to stop, limit, or prevent any continuing or future exposure of persons, property, and natural resources to hazardous substances from property owned by that person;
(4) The person provided full cooperation, assistance, and access to persons or agencies authorized to conduct response actions or natural resource restoration at the person's property and the property from which persons, property, or natural resources have been exposed to hazardous substances;
(5) The person is in compliance with any land use restrictions established or relied on in connection with the response action at the real property and does not impede the effectiveness or integrity of any institutional control employed in connection with a response action;
(6) The person has complied with any request for information or administrative subpoena issued by the President of the United States under 42 United States Code Chapter 103, the director under chapter 128D, or any state or federal court;
(7) The person has provided all legally required notices with respect to the discovery of or exposure to any hazardous substances at the real property; and
(8) At the time at which the person acquired the property, the person conducted all appropriate inquiries within the meaning of 42 United States Code Section 9601(35)(B) with respect to the property, and the person did not know or have reason to know that the property was or could be contaminated by the exposure to one or more hazardous substances from other real property not owned or operated by the person; provided that:
(A) A person who had or had reason to have knowledge specified in this paragraph at the time of acquisition of the real property may qualify as a bona fide prospective purchaser if the person meets the definition of a bona fide prospective purchaser pursuant to section 128D-1; and
(B) With respect to a hazardous substance from one or more sources that are not on the property of a person that is a contiguous property owner, where the hazardous substance enters ground water beneath the property of the person solely as a result of subsurface migration in an aquifer, the person shall not be required to conduct ground water investigations or to install ground water remediation systems, except as the director may deem necessary or in accordance with the policy of the Environmental Protection Agency concerning owners of property containing contaminated aquifers, dated May 24, 1995.
(l) Nothing in subsection (k) shall limit any defense to liability that may be available to a person under any other provision of law or impose any liability that is not otherwise imposed by subsection (a). The director may issue an assurance that no enforcement action under this chapter shall be initiated against a person described in paragraph (k)(1) and may grant a person described in paragraph (k)(1) protection against a cost recovery or contribution action under section 128D-5."
SECTION 2. Section 128D-1, Hawaii Revised Statutes, is amended by adding two new definitions to be appropriately inserted and to read as follows:
""Developer" means a person, corporation, organization, partnership, association, or other legal entity constructing, erecting, enlarging, altering, or engaging in any new residential or commercial development activity.
"Exposure" means causing a person, property, or natural resource to come into contact with a hazardous substance that is present on a property in a solid, liquid, or gaseous form."
SECTION 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 4. New statutory material is underscored.
SECTION 5. This Act shall take effect on July 1, 2011.
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INTRODUCED BY: |
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Report Title:
Hazardous Substances; Developer Liability
Description:
Establishes criteria for, limits on, and defenses to developer liability for exposure to hazardous substances in the course of residential or commercial development activity.
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.
