THE POLICIES SET OUT in this document do not represent final agency action and are intended solely as guidance. They are not Intended, nor can they be relied upon, to create any rights enforceable by any party in litigation with the State of Hawaii. Department of Health officials may decide to follow the guidance provided in this document or to act at variance with the guidance, based on an analysis of specific factual circumstances. The Department also reserves the right to change this guidance at any time without any notice or hearing.The policies set out in this document do not represent final agency action and are intended solely as guidance. They are not Intended, nor can they be relied upon, to create any rights enforceable by any party in litigation with the State of Hawaii. Department of Health officials may decide to follow the guidance provided in this document or to act at variance with the guidance, based on an analysis of specific factual circumstances. The Department also reserves the right to change this guidance at any time without any notice or hearing.
UNDERGROUND STORAGE TANK PROGRAM                                         UST/LUST ENFORCEMENT MANUAL
STATE OF HAWAII                                                                                              DEPARTMENT OF HEALTHSEPTEMBER 2018UNDERGROUND STORAGE TANK PROGRAM                                         UST/LUST ENFORCEMENT MANUAL
STATE OF HAWAII                                                                                              DEPARTMENT OF HEALTHSEPTEMBER 2018                                                                           2018
                                                                           2018

                                         TABLE OF CONTENTS

           GLOSSARY OF ABBREVIATIONS AND ACRONYMS.........................i 
           SECTION 1--INTRODUCTION
                 1. 1.	Purpose of the Manual	1-1
SECTION 2--DETERMINING ENFORCEMENT RESPONSE
                 2.1.	Overview  	2-1
 Detecting a Violation	2-1
                  Determining a Violation	2-1
                  Factors to Consider in Determining a Response Level	2-2
 Severity of the Violation	2-2
                         Circumstances of the Violation	2-3
                         Information About the Owner or Operator	2-3
                         Other Factors  ..	2-3
                 Appendix 2-A-Cover Letter Transmitting Inspection Report 
                 SECTION 3--ENFORCEMENT TOOLS AND PROCESSES
 Enforcement Actions for Violations of the Technical Regulations	3-1
 Field Citation	3-1
	       3.1. 2. Request for Information Letter	3-1
	3. 1.3. Warning Letter..................................................................3-2
	3.1.4. Delivery, deposit, and acceptance prohibition.................................3-2
                                            3.1.4.1   Rural and Remote Area Consideration When Determining Delivery Prohibition 
                                            3.1.4.2   Providing Notice To Owners and Operators And Product Deliveries
                                            3.1.4.3   Identifying USTs Ineligible for Delivery 
	             3.1.4.4  Red Tagging Process 
                                             3.1.4.5  Temporary Removal of the Tag 
                                             3.1.4.6   Notification of Return to Compliance 
                                             3.1.4.7   Request for a Hearing 
                                             3.1.4.8   Enforcement (Violation of Red Tagging)
                        3.1.5. Notice of Violation and Order (NOVO)	3-2
                                     3.1.5A.  Departmental Hearing and Negotiations; Consent Agreement and Order	3-4
3. 1.5B.  Pre-Hearing Conference	3-5
                              3. 1.5C. Findings of Fact and Conclusion of Law and Decision	3-5
                              3.1.6.    Judicial Actions	3-6
 Enforcement Actions for Owner and/or Operator-Reported Release (Not through Closure)	3-6
                         Confirmed Release Letter	3-7
                               Review Process	3-7
                         No Further Action (NFA) Letter	3-8
                        3. 2.4.  Corrective Action Letter	3-8
3.2.5.  NOVO..............................................................3-8
                         Enforcement Actions for Owner and/or Operator-Reported Release (Through Permanent Closure)	3-8
                         Enforcement Actions for Releases Not Reported by an Owner or Operator.3-8 3.4.1.  Release Response Order	3-9
                  3. 5.	Alternative Enforcement Tools	3-10
 Informal Meetings	3-10
                               Informal Settlement Conference	3-10
                         Voluntary Response Program (VRP)	3-11
 Capital Loan Program	3-11
 LUST Trust Fund	3-11
3.6.	Technical Guidance Manual (TGM) and Risk-Based Corrective Action (RBCA)3-11
 7.	EPA Enforcement Actions Taken in Hawaii	3-12
 Enforcement Response Timeframes	3-13
                   Penalties	3-13
                   Enforcement Outreach Including Press Releases	3-14
                  Appendix 3-A--Request for Information Letter Appendix 3-B--Warning Letter
                  Appendix 3-C--Return to Compliance Letter
                  Appendix 3-D--Letter Granting an Extension for         Compliance Appendix 3-E--Second Warning Letter
                  Appendix 3-F--Notice of Violation and Order Appendix 3-G--No Further Action Letter Appendix 3-H -- Confirmed Release Letter Appendix 3-I--Enforcement Response Timeline
           SECTION 4--POTENTIALLY RESPONSIBLE PARTY (PRP) SEARCHES
                  1.	PRP Search Objectives	4-1
 Potentially Responsible Parties	4-1
                  Information Sources		4-2
                  PRP Search Report Format	4-4
           SECTION 5--STATE-LEAD CORRECTIVE ACTIONS UNDER THE LUST TRUST FUND
                  1.	Hawaii Leaking Underground Storage Tank (LUST) Trust Fund	5-1
                 5.2.	Steps for Taking Action Under the Hawaii LUST Trust Fund	5-2
                 Appendix 5-A-LUST Trust Fund Eligibility Conditions (HRS 342L-52) Appendix 5-B--Hawaii LUST Trust Fund Eligibility Flowcharts Appendix 5-C--LUST Trust Fund Eligibility Documentation Worksheet Appendix 5-D--LUST Tank Trust Fund--Fund Expenditure Approval
           Appendix 5-E--Notice of Intent to Take LUST Trust Fund Action Sample Letter SECTION 6--COST RECOVERY
 Introduction 
 Legal Authority
 Background
                           6.3.1 Leaking Underground Storage Tank Unit (LUST unit)
                           6.3.2 The Department Environmental Resources Office (ERO) and Administrative 
                                     Services Office (ASO)
                           6.3.3 State of Hawaii Office of Attorney General 
                           6.4 Cost Recovery Priorities
                           6.5 Recoverable Costs
                           6.5.1 Direct Costs 
                           6.5.2 Indirect Costs 
                           6.5.3 Interest Charges 
                           6.5.4 Legal Costs  
 Cost Documentation	6-1
                  Recoverable Costs	6-1
 Cost Recovery Priorities	6-2
                  Preparing a Demand Letter	6-2
                         Settlement Negotiations and Judicial Actions	6-3
                   Collection and Case Closure	6-3
                   7.	References	6-3
            Appendix 6-Hawaii Leaking Underground Storage Tank Trust Fund Demand Letter SECTION 7--RECORDS AND DATA MANAGEMENT
                   1.	Records Management	.	7-1
                        7.1.1.  Contents of the Administrative File	7-1
                        7. 1. 2. Filing System	7-3
                  7.2.	Data Management	7-3
            			GLOSSARY OF ABBREVIATIONS AND ACRONYMS 
            
            AG			Attorney General  
            ASO			Administrative Services Office 
            CAO			Consent Agreement and Order  
            CRN			Confirmed Release Notification  
            DBED			Department of Business Economic Development and Tourism 
            DCCA			Department of Commerce and Consumer Affairs  
            DOH			Department of Health 
            EPA			Environmental Protection Agency  
            ERO			Environmental Resources Office 
            GS + M		General Support & Management 
            HAR			Hawaii Administrative Rules 
            HEER 		Office of Hazard Evaluation and Emergency Response  
            HEPCRA		Hawaii Emergency Planning And Community Right-to-Know Act
            HRS			Hawaii Revised Statutes
            LUST			Leaking Underground Storage Tank  
            NFA			No Further Action
      NOVO		Notice of Violation and Order  
      O/O			Owner/Operator
      OSWER		Office of Solid Waste And Emergency Response 
      PO			Office Project 
      PRP			Potentially Responsible Party
      RBCA			Risk-Based Corrective Action 
      RCRA			Resource Conservation And Recovery Act 
      RP			Responsible Party
      SHWB		Solid and Hazardous Waste Branch 
      SPA 			State Program Approval
      SOL 			State of Limitation
      TGM 			Technical Guidance Manual 
      UST 			Underground Storage Tank  
      VRP 			Voluntary Response Program 	
      

            








                                                 
                                          Section 1
                                             
                                      INTRODUCTION 
           
           This manual should be used in conjunction with the 2018 UST/LUST Inspector's Manual. In general, the Inspector's Manual describes procedures leading up to an enforcement action. The UST/LUST Enforcement Manual describes how to determine an appropriate enforcement action and the process for various enforcement activities.
           
           At the Department of Health (the Department), the underground storage tank (UST) inspector at a site or the leaking underground storage tank (LUST) staff person assigned to a particular site will be the person to handle the enforcement at his or her particular site.  Generally, the UST inspector will handle enforcement of violations of UST compliance requirements while the LUST staff will handle violations of release response requirements. The UST and LUST personnel will work closely with the attorney at the Attorney General's (AG's) office.











                                   SECTION 2

                        DETERMINING ENFORCEMENT RESPONSE

 Overview

            The purpose of any enforcement response is to:

 Bring about compliance with the State regulations
 Deter future violations, or, in the case of a release, ensure proper 
                     corrective action, and
 Encourage future compliance in the underground storage tank (UST) community.

            The least resource intensive action should be considered first. Enforcement personnel should then increase the severity of the enforcement action if the lower level of enforcement fails to achieve the desired response.
            
            The factors described below are for responses other than field citations. The field citation process is discussed in Section 13 of the 2018 Inspector's Manual. Where a field citation has been issued but has not led to compliance, the processes described below will then apply.

             Detecting a Violation

            Violations that trigger the State's enforcement response are generally brought to the UST program's attention by:

 UST staff while conducting inspections;
 UST staff, while reviewing records and other documents submitted to the Department by the facility;
 The facilities who report a release; and 
 Citizens who report complaints.

             Determining a Violation

            The inspector must take no more than 45 days from the evaluation date to determine violations and recommend an appropriate response, if necessary. The evaluation date will be defined as the first day of any inspection or record review during which a violation is identified, regardless of the duration of the inspection or the stage in the inspection at which the violation is identified. For violations detected through some method other than record reviews or inspection, the evaluation date will be the date upon which the information (e.g. self-reporting violators) becomes available to the Department.

            Where a field citation has been issued and has not led to compliance, the evaluation date will be the date that the field citation is withdrawn or the date that the Department 
            determines that a violator has not complied with the terms of a signed settlement agreement.

      The inspector completes an inspection report and sends it to the facility within 45 days 
      of the evaluation date. If the facility is to receive a warning letter, the warning letter serves 
      as the cover letter for the report. Refer to section 3.1.3. on Warning Letters.
            
            At the time of inspection, the inspector will leave behind the original copy of a Notice of Inspection (NOI). This Notice lists out any violations that must be corrected within a time period established at the inspector's discretion. If no violations are determined, then this is pointed out in the NOI and the inspector will email a letter to that effect, along with the site report. Refer to [UST FOLDER] to see a digital copy of this letter.   

             Factors to Consider in Determining a Response Level

            In determining the appropriate enforcement action for any UST violation, enforcement personnel should consider the following goals:

 Achieving compliance with the UST requirements;      
                  
 Equitable treatment of the regulated community; 

 Deterrence of future noncompliance; and 

 Effective use of the State's resources.

            The level of enforcement required to achieve these goals will vary depending on the severity of the violation, priorities established by the State, and specific circumstances of the case. For cases involving noncompliance with the UST regulations, factors that must be considered are:
            
 The seriousness of the violation
                  
 The circumstances of the violation, and
 
 Information about the owner or operator. 

            In addition, enforcement personnel must consider the likelihood that a response may establish a good or bad precedent.

            In a few instances, your decision may be to not issue an enforcement action--neither formal nor informal. This will generally be for a facility that is being inspected for the first time. This is determined on a case by case basis and you should consult closely with the UST Section manager.

 Severity of the Violation

            Considerations that must be made in determining the severity of the violation include:
            
 Actual or possible harm - whether the owner or operator's actions resulted in, or were likely to result in, an UST release.
               
 Importance to the regulatory program - whether the requirement that was violated is fundamental to achieving the goals of the UST program. For example, a violation of release detection requirements would be considered serious because the requirements are fundamental to the goal of preventing releases.

 Availability of data - whether the action involved a violation of any requirement for recordkeeping or reporting for which the Department has few other information sources. For example, a violation of the notification requirements would be considered serious because the notification program is a primary source of information on UST locations.

           To determine the appropriate response for a release that threatens human health or the environment, additional considerations include: (1) amount of petroleum or hazardous substance released; (2) toxicity of petroleum or hazardous substance released; (3) sensitivity of the environment in which the release occurred; and (4) duration of the release.
           
             Circumstances of the Violation

           To determine the appropriate level of action for other types of violations, enforcement personnel must consider the culpability of the owner or operator (i.e., whether the violation could have been prevented or if it was beyond the owner's or operator's control). In addition, enforcement personnel should consider whether the owner or operator made any efforts to identify, report, and correct the violation, independent of the enforcement response. Such positive reinforcement of "self-monitoring" will help encourage voluntary compliance.

             Information About the Owner or Operator

            Information about the owner or operator includes the economic benefit of noncompliance accrued by the owner or operator and the facility's compliance history. If information on these points is available, enforcement personnel should consider using it in choosing an enforcement response. For example, a history of noncompliance is considered a negative element, and an owner or operator that has a poor compliance record should be met with stronger enforcement actions. Certain considerations, such as the economic benefit of noncompliance, will require further research and are considered when a penalty is assessed. However, this should not delay action taken by the State. The burden to establish an inability to pay is on the owner or operator.

             Other Factors

            Another factor to consider is the relative publicity surrounding the release and/or violation at the site and the precedent set by the case. Enforcement staff will also want to consider what message they wish to convey to the regulated community concerning the department's approach to enforcement.



                                    
                                    
                                    
                                    
                                    
                                    
                                    
                                    
                                    
                                    
                                    
                                    
                                    
                                    
                                    
                                    
                                    
                                    
                                    
                                    APPENDIX 2-A

                   COVER LETTER TRANSMITTING INSPECTION REPORT
                                       
                                               [Date]	U0000___
                                                              CERTIFIED MAIL NO._______
                                                              RETURN RECEIPT REQUESTED
          Owner's or Operator's Name Facility Name
          Facility Address 

          Dear Mr. [Name]:

                               Subject: [Facility Name, Address, ID Number], Underground Storage Tank Compliance Evaluation Inspection Report

          On [Date], an underground storage tank (UST) Compliance Evaluation Inspection (with respect to the State UST laws) was conducted at [Facility name], [10 Number], by representatives of the Hawaii Department of Health (the Department). During the inspection, information was gathered in accordance with section 342L-7 of the Hawaii Revised Statutes (HRS). We left you the original copy of the Notice of Inspection (NOI). We have emailed you a digital copy of the report to the email address you provided us. Although no deficiencies were noted in the NOI, and no deficiencies have been noted in this report, any omission in the NOI or this report shall not be construed as a determination of compliance with applicable regulations. Also, any omission to cite other violations is not intended to nor shall be binding upon the Department. 

           The Department reserves the right to take enforcement action as it deems appropriate. Violations of State UST laws may result in administrative and civil actions, including administrative or civil penalties of up to $25,000 for each tank for each day of each violation, as provided by HRS section 342L-10.

           If any information attached to or referenced in the inspection report is entitled to copyright protection or confidential treatment, please assert a copyright and/or confidentiality claim. The Department will construe the failure to assert a copyright or confidentiality claim as a waiver of such claims, and any information attached to or referenced in the inspection report would be made available to the public by the Department without any copyright or confidentiality protection.

           If you have any questions related to this letter or the technical aspects of the inspection report, please contact [Inspector's Name] at 586-4226.

                                          Sincerely,

                                               [Inspectors Name]
                                               Solid and Hazardous Waste Branch
           

           Enclosure
           c:
                                    SECTION 3 
                       ENFORCEMENT TOOLS AND PROCESSES 
 Enforcement Actions for Violations of the Technical Regulations

            The Department enforcement personnel may take the following actions in response to violations of the technical regulations:
      
 Request for Information Letter 
 Field Citation  
 Warning Letter
 Delivery, deposit, and acceptance prohibition (red tag)
 Notice of Violation and Order (NOVO)
 Judicial Action

            Each type of action is outlined below along with an explanation of the procedures for handling each action.

             	Request for Information Through Notice of Inspection (NOI)	

            A request for information is authorized by statute--Hawaii Revised Statutes (HRS) section 342L-7 and is sent by the duly authorized person in the Solid and Hazardous Waste Branch (SHWB). The Department can request information from an owner or operator of an UST or from any person involved in a response action relating to any release from an UST. The request can be made via a letter or via the Notice of Inspection. The requested party shall furnish information relating to the UST, including equipment and contents and any response action to releases from the UST. The letter advises the requested party that failure to provide the information requested may result in an assessment of penalties. The letter is sent by certified mail, return receipt requested. Refer to Appendix 3-A [or some digital folder] for an example. The NOI is used if the request is made at the time of inspection.
                        The request for information letter can be issued under several circumstances
                        including: 
                        
 An initial action as the result of a complaint

 Action prior to an inspection

 At the time of inspection 

 Action following an inspection, 
                        and
 Action following a review of documents submitted by the facility.

             Field Citation

            Field citations are an enforcement option provided for in Hawaii Administrative Rules (HAR) chapter 11-280.1 subchapter 13. A field citation is an expedited enforcement process and contains lower penalty amounts as an incentive for faster settlement. It is less resource intensive than traditional methods of underground storage tank (UST) enforcement. Many of the procedures described in this UST/LUST Enforcement Manual do not apply to field citations. However, where a field citation has been issued but has not led to compliance, the processes described below will then apply.

            

Refer to the UST/LUST Inspector's Manual for a complete discussion of field citations. In general, field citations should be considered as the first option for enforcement.            

             Warning Letter

            The Department can issue a warning letter and does not levy penalties. A warning letter might be issued for less serious violations for which a field citation is not appropriate. Warning letters are not required prior to taking more formal actions. However, they do serve as documented evidence of contact with the owner or operator and may be used later to support more severe enforcement actions.

            The warning letter informs the owner or operator that the Department considers him or her to be in violation of a technical requirement. In general, the warning letter should contain the following:

 Identification, citation, and explanation of the violation;
                  
 A deadline for achieving compliance with the appropriate regulatory or statutory requirements (e.g., 30 to 45 days);

 A statement indicating that continued noncompliance beyond the deadline may result in the issuance of a Notice of Violation and Order (NOVO) or initiation of a civil action, which may include an assessment of civil penalties of up to $25,000 per tank for each day of each violation; and

 The name and address of a Department contact person.

            Refer to Appendix 3-B [or some digital folder] for a sample of a warning letter.

            The inspector adjusts the sample warning letter to the specificities of each facility and sends it to the facility along with the inspection report, generally within 45 days of the evaluation date. The letter is sent by certified mail, return receipt requested. The facility is usually given 45 days to correct violations.

            The inspector will verify a return to compliance by reviewing documentation submitted by the facility and/or a reinspection. If the return to compliance is achieved, the facility is sent a Verification of Compliance letter. Refer to Appendix 3-C [or some digital folder] for an example.

            A facility may request an extension of the 45 days.  The request must be in writing and will be confirmed in writing by the inspector. Under reasonable circumstances, the inspector will grant an extension for up to 60 days. Refer to Appendix 3-D [or 
            some digital folder] an example of the letter granting an extension.

            If a facility has not returned to compliance within the required timeframe, the Department may issue a second warning letter. The second warning letter is similar
            to the initial warning letter.
            
            Refer to Appendix 3-E [or some digital folder] for an example of the second letter.
            
            3.1.4 Delivery, Deposit, and Acceptance Prohibition (Red Tagging)
            
            The Energy Policy Act of 2005 requires states with approved UST programs, including Hawaii, 
            to develop processes and procedures to implement the prohibition of delivery to, deposit into, or 
            acceptance of a regulated substance. This is known as the "delivery, deposit, and acceptance
            prohibition", known as "delivery prohibition" or "red tagging".
            
            If the department finds any of the following conditions, the UST may be deemed ineligible for 
            delivery, deposit, or acceptance [§11-280.1-429(d)]:
            
    Operating without a permit issued by the Department or operating inconsistently 
                           with one or more conditions of a permit issued by the Department 

    Required spill prevention equipment is not installed or properly functioning 
                             or maintained 
                  
    Required overfill protection equipment is not installed or properly functioning 
                             or maintained

    Required release detection equipment is not installed or properly functioning or 
                           maintained

    Required corrosion protection equipment is not installed or properly functioning 
                           or maintained, including failure to protect a buried metal flexible connector from 
                           corrosion 

    Failure to maintain financial responsibility 
                  
            If any of the following violations are not corrected within 180 days, the UST must be deemed 
            ineligible for delivery, deposit, or acceptance: 
            
    Required spill prevention equipment is not installed 
                     
    Required overfill protection equipment is not installed 

    Required leak detection equipment is not installed 

    Required corrosion protection equipment is not installed 
             
            
            
            If the O/O does not return to compliance after the issuance of a field citation, the 
            inspector will discuss with the UST program Supervisor and the Program's Deputy Attorney 
            General to determine if red tagging is a proper, next step and determine whether rural and 
            remote area considerations apply (see section 3.1.4.1). 

		If the decision is to initiate red tagging, a Notice of Intent to Tag letter will be sent to the UST 
      O/O. The letter, signed by the Solid and Hazardous Waste Branch chief, must be
      sent certified mail or hand-delivered. The letter will include: 
      
    A list of violations and actions that must be corrected to achieve compliance 
                           within 14 days, after which the department will red tag the tank(s)
                        
    The potential consequences for continuing to operate the non-compliant UST 
                           system, including formal enforcement actions and maximum penalty amounts. 
                     
    How to notify the Department of achieved compliance.
                  
    How the Department will inform the owner and operator of their compliance 
                                                after review of the submitted information. 
                     
    How to request a hearing to re-determine eligibility if the tank is red tagged. 

		 3.1.4.1 Rural and Remote area Consideration For Delivery Prohibition 

		 If the UST is in a rural or remote area, delaying red tagging may be considered if it 
		 would jeopardize the availability or access to fuel. This consideration applies to USTs that:

    Dispense fuel for purchase (i.e. public gas stations) or store fuel solely for 
                           use by emergency power generators
                  
    Are located on the islands of Lanai and Molokai 
                  
    Are located more than five miles from the next public gas station in at least 
                                                one direction, via the shortest driving route on public roads. 
	
		 No political subdivisions distinguish urban and rural areas. Supervisors must conduct an 
                   individual analysis of the nearest alternative fuel source(s) to determine if availability and 
       access to fuel would be affected by red tagging a particular UST. 

		 3.1.4.2  Providing Notice to Owners and Operators About Potential Red Tagging 

		 O/Os typically receive multiple written notices of the possibility that their UST or UST system 
                         could be deemed ineligible for delivery through the process described in section 3.1.4. A Notice 
                         of Intent to Tag letter, sent 14 days before the Department intends to red tag the tank, is the final 
                         notice. 

       When an imminent threat to human health or the environment exists, or when there is a 
                         pattern of recalcitrant violation, the inspector may initiate red tagging and provide immediate 
       notice to the O/O.
      
       If the O/O is not present at the time the UST or UST system is to be red tagged, an employee at
       the facility at the time may be notified in lieu of the O/O [§11-280.1-419(b)]. The inspector must 
       make every effort to provide the red tagging notification to the employee in charge of the facility 
       at the time.   

		 3.1.4.3 Identifying USTs Ineligible for Red Tagging

		 Red tagging the fill pipe of an ineligible UST or tank system identifies that UST or UST system 
       as ineligible for delivery. §11-280.1-429 provides for red tagging a fill pipe to identify a tank 
             as ineligible for delivery. The Department currently uses a large red bag marked "DOH no 
             Fuel Delivery" that fits over the fill pipe and a red 3x5" tag. 
      
		 The small tag reads: "STATE OF HAWAII  -  DEPARTMENT OF HEALTH UNDERGROUND 
		 STORAGE TANK PROGRAM 808-586-4226 DO NOT FILL Delivery deposit or acceptance of 
		 petroleum, or other regulated substances, into this tank is prohibited under Hawaii Revised Statutes 
       (HRS) §342L-32.5 and Hawaii Administrative Rules (HAR) §11-280.1-429. Violation of this 
       prohibition is subject to a penalty of not more than $25,000 for each individual tank for each day 
       of violation. TAMPERING OR REMOVAL OF THIS TAG IS A VIOLATION OF LAW."
		 
		 3.1.4.4 Red Tagging Process

		 No later than 3 business days from the anticipated date noted on the final notice (see 3.1.4.2) the 
       inspector returns to the facility to attach a tag to the fill pipe for each non-compliant tank. Before 
       placing the tag, the inspector must take any precautions to protect her or his safety, including a 
       request for a police escort leaving the site at any time if conditions appear hostile. 
      
       The UST inspector must make every effort to attach both the red bag and the tag with the 
       Department's contact information to the tank's fill pipe using zip ties. The inspector must ensure 
       that the noncompliant tank is securely tagged, photograph the fill pipe(s) before and after the tag 
       is in place, and log the remaining volume of fuel in the UST(s) and the dispenser totalizer 
       reading.   
      
       If the spill bucket around the fill pipe is full of water or product and the tag cannot be applied, 
       the inspector must request that the O/O empty the spill bucket in accordance with 
       proper disposal requirements. If the O/O refuses to empty the spill bucket, the 
       inspector must attach the tag to the manhole cover or another available location. 
      
       The inspector must document all observations, actions, and conversations at the site. The UST 
       Program manager must notify the Program's Deputy Attorney General of the date the red tag 
       was attached and any issues that arose during the tagging process. 

		 3.1.4.5 Temporary Removal of the Tag

		 If an O/O wishes to conduct repairs, upgrades, or testing, or remove or add product that requires 
       the temporary removal of a tag, the owner or operator must provide a written request (e-mail is 
       sufficient) explaining the testing parameters, the tank systems affected, and the amount and type 
       of fuel involved. 
      
       The request should also include the proposed date and time for the event. Upon written approval 
       by the Department (e-mail is sufficient), the tag may be temporarily removed to conduct repairs, 
       upgrades, or testing, or to add or remove product. 
      
       If approval involves accepting product into the tank to conduct testing, the approval letter will set 
       out the conditions under which the delivery can be made, including the amount of regulated 
       substance that can be delivered into the tank system, the timing of the test, and whether the fuel 
       must be removed from the tank after the test. 
		  
                   A Department inspector may be on site to remove the tag or authorize the O/O in the approval      
                   correspondence to remove the tag for the limited testing period and replace the tag. If the O/O 
                   is allowed to temporarily remove and replace the tag, the Department will supply Department-
                   approved zip ties along with the approval correspondence. The inspector must ensure that the tag 
                   is reattached after the event is concluded.  
		  
		  3.1.4.6  Notification of Return to Compliance 

		  In most cases, the O/O informs the Department in writing that violations have been corrected, 
                          indicating all measures taken to achieve compliance and proving the necessary supporting 
                          evidence (i.e. photographs, receipts, etc.). After receiving such notification, the inspector must 
                          review the information provided and/or visit the site to confirm compliance as soon as possible 
                          and within five business days. If any violations have not been corrected or documentation is 
                          insufficient, the inspector notifies the O/O of the deficiencies in writing and requests the necessary   
                          documents to verify the return to compliance.  

		  If return to compliance is confirmed, the Department shall provide written notice to the O/O that
                          the tank is reclassified as eligible to receive deliveries. Upon this determination, the inspector will 
                          immediately remove the red tag from the compliant tank(s) if possible. Inspectors will make every 
                          effort to assess return to compliance and remove the tag in person. 

                    However, if circumstances prohibit returning to the facility within this time frame, the inspector 
                    may send a letter (by e-mail and certified mail) to the O/O authorizing removal of the tag. Once 
                    the tag is removed, the UST can resume receiving deliveries and the tag and bag should be returned 
                    to the Department at the O/O's expense. 

		  3.1.4.7  Request for a Hearing

		 When a UST system is red tagged, the O/O may request a hearing to contest the 
		 Department's determination to red tag. The Department will provide such a hearing within
		 forty-eight hours [§11-280.1-429(e)]. The hearing will be conducted in accordance with 
		 chapter 91 HRS, and chapter 11-1, HAR.
	  	 
       If the Hearings Officer affirms the Department's determination, the O/O must provide written 
       notice to the Department when violations have been corrected, and the procedures of section 3.1.4.6 
       must be followed. If the Hearings Officer modifies the Department's determination of ineligibility, 
       the O/O will be notified by the Department via a telephone call, e-mail, and certified letter 
       authorizing the removal of the tag. Once the tag is removed, the UST can resume receiving 
       deliveries and the tag and bag should be returned to the Department at the O/O's expense.  
		 
		 3.1.4.8   Enforcement (Violation of Red Tagging)

		 If fuel or another regulated substance is delivered to, deposited into, or accepted into a UST or 
		 tank system that has been red tagged, or the tag has been removed, tampered with, destroyed, 
		 or damaged, the Department may take enforcement action against the UST owner, operator, 
		 and/or product deliverer [§11-280.1-429(a) and (c)]. §342L-10, HRS, sets the maximum penalty
		 at $25,000 per tank per day of violation. More information on penalties is available in the 
		 Department' UST Program Administrative and Civil Penalty Policy (January 2015).

             3.1.5.  Notice of Violation and Order (NOVO)

             If a facility has violations that are more serious than those covered under a field citation, but do not pose an imminent and substantial danger, a NOVO would likely be the enforcement option. The inspector reviews the violations and recommends to the UST Section supervisor the appropriate enforcement action.  The supervisor contacts the deputy Attorney General (AG). The inspector then works with the deputy AG to plan case strategies and to draft the NOVO.

            The NOVO is an administrative action that is authorized by State statute pursuant to          
             HRS section 342L-8. The NOVO will:

 Identify the alleged violations and cite the appropriate    
                           authorities 
 Set forth the facts supporting the allegations
 Prescribe corrective measures immediately or within a specified   
                           time 
 Usually impose a penalty
    May include a suspension, modification, or revocation of any permit, 
                          and
 Require the respondent to request a Departmental hearing in writing, no 
                           later than 20 days after service of the NOVO, or else the NOVO becomes  
                           final.

           Refer to Appendix 3-F for an example of a NOVO.

           Penalty amounts are calculated based on the Underground Storage Tank Program Administrative and Civil Penalty Guidance, January 2015. Refer to section 3.8.

           In preparing the order, the inspector needs to gather information from the State Department of Commerce and Consumer Affairs (DCCA), Registration Division. Information needed includes:

  Registered name of the business,
  Nature of the business,
  Address of the business,
  Where the business is incorporated (from the articles of incorporation), 
                              and
  List of officers.

           You will probably know some of this information already, but the DCCA will confirm the information. The inspector also assigns a docket number to the order.

           The order will be served on the president or owner or co-owners of the facility. If the facility has corporate offices that are separate from the facility office, the order will be served on the corporate office as well.
           
            The NOVO is usually delivered by certified mail, return receipt re-quested. A NOVO may also be hand-delivered to the respondent(s). In cases where the respondent is a corporation, the NOVO should be served on the agent for service of process or an officer of the corporation. Identifying the proper recipient of a NOVO usually requires considerable research. Along with the NOVO is a Certificate of Service Form to be signed by the SHWB Chief and mailed to the respondent with the NOVO. For orders that are hand-delivered a Return of Service Form accompanies the order. The Return of Service Form is signed by the person who delivers the order.

            Opportunities for conferences between the Department and the respondent(s) exist at any time after the NOVO is served and prior to the date of hearing. The NOVO specifies the process for requesting a hearing. No later than twenty days after service of the NOVO, the respondent must request a hearing in writing.  If the respondent does not request a hearing, the NOVO becomes final. The respondent must then comply with the actions specified by the NOVO and any penalty imposed is due and payable twenty days after the NOVO was served.

            Once the Department issues a NOVO and the order becomes final, the following methods are used to document the violator's compliance: (1) the report required of the violator by the NOVO; (2) the violator's admission at conference(s); and (3) a targeted field inspection of the facility once the return-to-compliance is achieved. If the violator does not comply with the specified terms within the time period stated in the NOVO, the Department may pursue a civil action to effect the facility's return-to-compliance.

            3.1.5A. Departmental Hearing and Negotiations; Consent Agreement and Order

             The respondent has 20 days upon issuance of a NOVO to request a Departmental hearing. If a hearing is not requested within 20 days, the order becomes final. The Departmental hearing is conducted as a contested case hearing pursuant to HRS chapter 91.

             However, any time prior to a hearing, the respondent may also request a settlement conference. The inspector notifies and involves the UST Section supervisor, the SHWB chief, and the respondent in the decision to schedule a settlement conference. The inspector then determines and coordinates the participation of other UST Section staff, the technical support staff (geologist, toxicologist, engineer, etc.), and the AG's office.  These participants discuss the violations, the violation correction requirements, corrective
             actions, penalties, the desired outcomes of the settlement conference, and the conference strategy.

             Settlement conference goals differ on a case-by-case basis and are generally defined by the conference initiator. In conferences initiated by the Department, the inspector assumes the lead role and facilitates discussions on the issues that are defined and prioritized by the goals/strategy of the conference. Unless agreed upon by all participants, the conference proceedings are not tape-recorded. Neither are stenographers utilized to transcribe the proceedings unless all parties agree.

             The UST Section supervisor or the SHWB chief makes the enforcement decisions 
             on issues presented and/or discussed during the settlement conferences. These 
             decisions are based on the goals and/or strategy of these conferences and strive to 
             effect expedient returns-to-compliance and appropriate penalties based on the 2018 Underground Storage Tank Program Administrative and Civil Penalty Guidance.

              Negotiations that lead to the settlement of a NOVO will be finalized in the 
              Consent Agreement and Order (CAO). The CAO is prepared by the deputy 
              Attorney General. It is a negotiated settlement agreement between the parties 
              that will be final and binding once it has been incorporated into a final order 
              that is signed by the Deputy Director for Environmental Health of the Department 
              of Health. The Consent Agreement states that the O/O:

 Agrees to settle all allegations of the NOVO through the terms of 
                             the CAO 
 Waives the right to a judicial or administrative hearing on the NOVO. 
                             and 
 Agrees to pay the penalty.

            If settlement is not reached following a settlement conference(s) or if a settlement conference is not held, a hearing may be scheduled (assuming the respondent has 
            made the request within the required 20 days).

            3.1.5B. Pre-Hearing Conference

            The hearing officer, at any time prior to a hearing, may direct the parties and their counsel to participate in a pre-hearing conference to discuss the following:

    The settlement of the case
                  
 The simplification of issues and stipulation of facts not in   
                                            dispute
 The necessity or desirability of amendment to pleadings

 The exchange of exhibits, documents, prepared testimony, and  
                                            admissions or stipulations of fact which will avoid unnecessary proof

 The limitation of the number of expert or other witnesses
                     
 Setting a time and place for the hearing, 
                           and
    Any other matters which may expedite the disposition of the proceeding.

             3.1.5C.     Findings of Fact and Conclusion of Law and Decision

             After completion of a hearing, the Department must issue a decision. The hearing officer will make a recommendation to the Director of Health, and the Director will then issue a decision.  If the decision is in favor of the Department, the final document generated is a Findings of Fact and Conclusion of Law and Order. The Findings of Fact and Conclusion of Law and Order state the circumstances of the case and the rationale for the decision. The order portion declares either that the NOVO is to be a final order or that the NOVO with modifications is to be a final order.
             
             If the decision is in favor of the facility, the final document generated is a Findings of Fact and Conclusion of Law and Decision. The Findings of Fact and Conclusion of Law and Decision state the circumstances of the case and the rationale for the decision. The Decision portion declares that the NOVO is withdrawn.

             3.1.6.     Judicial Actions

             Judicial action includes civil actions. When the case is referred to the Department 
             of the Attorney General for civil action, the assigned Deputy Attorney General, 
             in consultation with the Department, will develop a civil action (complaint or 
             injunction) to be filed in State Court. Civil penalties shall not exceed $25,000 per 
             tank per day per violation. HRS section 342L-8 authorizes the commencement of 
             civil actions by the Department of Health director against any person(s) violating 
             the provisions of HRS 342L without necessarily including the suspension, 
             modification, or revocation of UST permits.

              Judicial referral may begin when administrative responses have been ineffective 
              or inappropriate. Judicial actions may also be taken without the prior issuance of 
              a NOVO. The judicial actions that State enforcement personnel may take are:

 Injunctive actions - to prevent an O/O from continuing actions that endanger human health and the environment. Injunctive actions include temporary restraining orders, preliminary injunctions, and permanent injunctions.

                   Civil judicial enforcement actions - to compel compliance and assess penalties when less severe responses (such as NOVOs) have been or would be ineffective in bringing about compliance.

                          3.2     Enforcement Actions for O/O-Reported Release (Not
	   Through Permanent Closure)

              If the release was reported by the O/O, they would have been required to follow the reporting requirements set forth in Hawaii Administrative Rules (HAR) chapter 11-280.1 subchapters 5. Thus, the primary purpose of enforcement response taken in a case where the release is self-reported is to ensure that the O/O carries out the corrective action activities required by the regulations. The enforcement techniques discussed below are typically used when the O/O has notified the Department of the release.

                An O/O must notify the Department within 24 hours of discovering a suspected release. This is generally done over the phone and sometimes via letter or fax. If the notice is done over the phone, the staff person completes the Department Standard Interview Form, then prepares a Suspected Release Letter. Refer to section 7.2 of the Inspector's Manual for more details on the Form and letter. [Where exactly?]

              An O/O must confirm a release within 7 days of initial notice. An O/O must then notify the Department within 24 hours of the confirmed release, which is generally done over the phone, and sometimes via letter or fax. If the notice is done over the phone, the staff person completes the Confirmed Release Interview Form. Refer to section 9 of the Inspector's Manual for more details on the Form.

               Once the Confirmed Release notice is received, the staff person checks the Release Tracking Log. Log information is later entered in USTRAC. By checking the log first, then USTRAC, the staff person determines whether the confirmed release is a new release or not. The same release may be reported more than once because a facility representative might talk to more than one Department staff person in reporting a release. 
               
               If it is an earlier reported release, the staffer needs to determine whether a standard Confirmed Release Letter has been sent by the O/O. If a Confirmed Release Letter has not been sent by the O/O or the release is new, the staff person begins preparation of the Confirmed Release Response letter. Refer to Section 3.2.1 for details on the letter. Also refer to section 8 of the Inspector's Manual for more details on processing confirmed releases.
			
		   [We must write a brief descriptive paragraph if a Release Response Guidance Letter will be used.]

              Before logging information and preparing a Confirmed Release Response Letter, you may need to take additional steps under certain circumstances:

               Non-notifiers. If no facility ID number can be found or if there is no tank ID number for the UST, the section leader will assign a new ID number and create a new facility or tank record, as appropriate. You can then proceed with logging and the letter.

               Multiple releases at one facility. If a release ID number is already associated with a facility, check the file. The site may have more than one release associated with it. Confirm whether the latest notice is a new release at the site that has other releases or is a duplicate notice of an existing release. The file is then passed to appropriate inspector to proceed. Keep in mind that as of 2018 multiple releases at one site are counted as one release. 

                   3.2.1     Confirmed Release Letter

              The Confirmed Release Response Letter is sent to the O/O acknowledging that the Department has been notified of the confirmed release. The letter also contains the following:

 Citations for the State requirements governing releases; 
                    Summary of reporting requirements for releases;
 A copy of the Confirmed Release Notification (CRN) form to be    
                          completed by the O/O and submitted to the Department within 7 days 
                          of the release.

 This is not a regulatory requirement, but rather  a form                              recommended for use in the HEER Technical Guidance Manual (TGM)  
                          available at http://www.hawaiidoh.org/tgm.aspx. The O/O can print the  
                          form, fill it out, and send it to the Department
    List of guidance documents.

              Refer to section 8 of the Inspector's Manual for more details of the confirmed    
              Release Response Letter.

                          3.2.2     Review Process

              The assigned inspector then waits to receive the necessary reports, including  
              quarterly reports. As the reports come in, the inspector reviews them and assesses  
              their adequacy. The inspector may ask for additional information as necessary and   monitors the progress of investigative and cleanup actions.

               When all clean-up activities have been completed the facility will submit a final   
               quarterly report. 

                    3.2.3     No Further Action (NFA) Letter

             The assigned inspector continues to review documentation and monitor cleanup progress. If the assigned inspector determines that cleanup has been adequately achieved, the Department will issue a No Further Action letter. The NFA letter affirms that no further action is necessary in response to the release.  The letter also states that if future new information indicates contamination at the former release location, additional investigative and cleanup actions may be required. See Appendix 3-G [or some digital folder] for an example of the NFA letter.

                     3.2.4     Corrective Action Letter (AKA Release Response Review Letter)

             Under HAR section 11-280.1 subchapter 6, the Department has discretion to require that an O/O adhere to a reasonable schedule for the completion of specific corrective action activities. The corrective action letter is a one to two-page letter that notifies the O/O of timeframes that they must use to schedule these corrective action activities. The letter is meant to be informal, and its purpose is to capture the attention of the O/O, convey the Department's expected schedule for cleanup, and initiate negotiations.

                     3.2.5     NOVO

             The NOVO is issued to an O/O who has failed to comply with the requirements of the corrective action regulations. The NOVO is explained in section 3.1.4.

              Enforcement Actions for O/O-Reported Release (Through Permanent Closure)

             Confirmed releases can also be reported to the Department through the UST permanent closure process (tank removal or close-in-place). At least thirty days before beginning permanent closure of a UST or tank system, O/Os must notify the Department in writing of their intent to permanently close. The assigned inspector prepares a response to the notice by preparing a Confirmed Release Letter. See Appendix 3-H [or some digital folder] for an example.

              A consultant proceeds with closure of the tank(s). If contaminated soils, contaminated groundwater, or free product as a liquid or vapor is discovered, O/Os must begin release response action in accordance with HAR 11-280.1, subchapter 6. A release detected at this point would generally be a confirmed rather than a suspected release.  Among other requirements, the facility must notify the Department within 24 hours of confirming a release. At that point the Department process follows the process outlined in section 3.2.

              In addition to the release reporting requirements, the facility is also required to submit a closure report upon completion of closure. Where there has been a release, the report should also include the HEER's TGM Checklist for Final Release Response Reports, available at http://www.hawaiidoh.org/tgm.aspx. The assigned inspector reviews the closure report and issues a no Further Action Letter, if appropriate.

               Enforcement Actions for Releases Not Reported by an O/O
              
              When it is determined that a confirmed release from an UST has occurred, the primary goal of an enforcement response is to encourage an O/O to conduct corrective action. However, the specific enforcement response taken may differ depending on whether the O/O has reported the release (in which case a violation may not necessarily be involved) or whether the Department has discovered the release by some other means. The discussion that follows describes enforcement tools used when the release is not reported by the O/O.

              Releases that are discovered through other than the O/O are generally reported to the Department through complaints. The complaint will come to the SHWB or to the Office of Hazard Evaluation and Emergency Response (HEER). If the release is believed to be UST-related but does not appear to require emergency measures, the UST Section will conduct an initial investigation (e.g., check site history available on database, double check redundant complaints, etc.). If the site requires emergency measures, the HEER office will do the investigation, with assistance from the UST Section, either an UST or a LUST inspector.

              Upon initial investigation, the Department will determine if the facility needs to conduct a suspected release investigation. The facility will then be notified through 
              a Suspected Release Letter (see section 3.2). At this point the release will generally 
              be handled in the same way as releases that are reported by the O/O.

              3.4.1 Release Response Order

              Under HRS section 342L-52, the Department may issue an order requiring the O/O to undertake response actions as is necessary to protect human health and the environment. This order is called a Release Response Order (RRO) and is similar to the Corrective Action Order in the federal UST program. It will generally be used where a release is not reported by the O/O but can be used for O/O-reported releases as well.

              RRO will typically describe the actions that must be taken by the O/O (e.g., the release response requirements set forth in HAR chapter 11-280.1 subchapter 6), provide a specific timeline for taking these actions, and indicate the potential consequences of not doing so. As with the NOVO, the RRO should also indicate to the O/O that continued non-compliance will result in further legal action, including the assessment of additional penalties of up to $25,000 per each day of noncompliance with the RRO. The RRO may be combined with a NOVO to compel compliance with specific technical requirements or to include an assessment of administrative penalties. As described in section 3.1.5 above, the assigned inspector may need to initiate judicial proceedings if the O/O continues to be recalcitrant.

              Refer also to Section 4 for a discussion of State-lead corrective actions under the LUST Trust Fund.

               Alternative Enforcement Tools
            
              To create a successful, comprehensive enforcement program, the Department must provide its enforcement staff with flexibility implementing enforcement responses. As discussed above, not all the techniques described in this manual will be appropriate in all circumstances, and enforcement personnel may wish to develop and implement some alternative enforcement tools to achieve the same compliance objectives. The sections that follow provide examples of some additional enforcement tools that may be used to supplement the basic tools for achieving both compliance with the technical rules and cleanup of a release. These tools may be used alone or in conjunction with the techniques described in sections 3.1, 3.2, 3.3, and 3.4.

 Informal Meetings

              Once the appropriate O/O has been notified of the violation(s) or release (generally via a warning letter), they may meet with enforcement personnel to discuss the violations. These meetings are intended to gather all pertinent documentation to assure proper procedures to return to compliance (carry out proper required testing and clean up procedures). The informality of the meeting is intended to create an atmosphere of cooperation to achieve compliance with UST regulations. 

               Informal Settlement Conference

              Once an enforcement action is issued, negotiated resolution of the action is considered a cost-effective means of achieving compliance. Some discussion of negotiations is found in section 3.1.4A concerning NOVOs. The manner enforcement personnel negotiate with an O/O will vary depending on the type of violation, whether the situation is an emergency, and the willingness of the O/O to cooperate. In all cases, however, a limited time frame, whether publicized initially or conveyed to the O/O during negotiations, should be developed by the enforcement personnel. This increases the efficiency of the process. It should be noted that to be effective, however, any negotiated agreement must still hold the threat of further action if the O/O does not cooperate.

               Voluntary Response Program (VRP) [Roxanne]

              

The VRP was created by amendments enacted on July 7, 1997 to Hawaii's Environmental               Response Law (HRS chapter 128D).   The VRP encourages prospective developers, lenders, 
              and purchasers to voluntarily clean up properties by facilitating and streamlining the



 cleanup process and, in certain situations, providing relief from the strict liability provisions of               HRS chapter 128D. By participating in the VRP and paying the required fee, the 
              prospective purchaser would be able to have the State oversee the work, assure that the 
              site is cleaned up to the State's satisfaction, receive an official no further action letter, and potentially receive relief from future liability. Refer to the Department brochure Voluntary
              Response Program for further information on the VRP.

                  Capital Loan Program [Roxanne]

              While it is not actually an enforcement tool, staff should keep in mind Hawaii's Capital Loan Program when advising O/O on remedying violations or conducting cleanups. The program was established to make loans to businesses who are replacing, upgrading, closing, or taking remedial action related to--or cleaning up-releases from USTs. The fund currently has $1.7 million. The program will end when the current funds are expended. 
              The loans have a low interest rate and attractive terms. The loans are available to small businesses and preference is given to those who meet certain criteria such as creating job potential, stimulating exports, displacing imports, using local resources or by-products, and centering on Pacific Basin activities. They are administered by the Department of Business, Economic Development, and Tourism (OBED). Refer to the OBED brochure Small Business Loans for Underground Storage Tank Owners Through State of Hawaii for more details on the program.

              3.5.5 LUST Trust Fund [Roxanne and Lene]

              The Leaking Underground Storage Tank (LUST) Trust Fund allows the State to undertake corrective actions at a site if the appropriate criteria are met. (Section 5 
              discusses the LUST Trust Fund in detail.) While not expressly intended for the purpose, the threat of using the LUST Trust Fund can also be used as an informal enforcement tool in certain situations.

              During negotiations, staff should point out to O/O that the State could take a State-lead corrective action under the LUST Trust Fund. Since all costs incurred by the LUST Trust Fund, including interest charges and State staff time, are recoverable (see Section 6), the O/O enjoys no economic benefit from having the State take the corrective action. In fact, a State-lead response action undertaken under the LUST Trust Fund may cost more than if the O/O were to take the response action voluntarily, since cost is not one of the factors required to be considered in conducting corrective actions under the LUST Trust Fund. In addition, LUST Trust Fund cleanups are generally well-publicized and may provide the O/O with notoriety they may prefer to avoid.

 UST and HEER Technical Guidance Manuals (TGM) 

              To assist O/O through the process of correct tank closure and release response activities which must comply with HAR 11-280.1 Subchapter 6 and Subchapter 7, the Department relies on the Hazard Evaluation and Emergency Response TGM and, to a lesser degree, the Underground Storage Tank TGM. The UST TGM and the HEER TGM provide technical information and guidance on the requirements of the HAR 11-280.1 UST closure and release response process. 
              
              Contained in the TGMs to assist O/O and their consultants is guidance on: i). reporting and record keeping requirements, ii.) environmental requirements for UST closure, iii.) how to respond to a UST spill or overfill, iv.) how to respond to a confirmed release from an UST, v.) proper management of waste derived from a UST closure or release response, vi.) environmental sampling and analysis guidance, and vii.) 
              
             UST closure or release response health and safety considerations. The TGMs are available at http://www.hawaiidoh.org/tgm.aspx.  The final cleanup levels of contaminants released into soil or groundwater from an UST is determined by following the HEER Environmental Action Levels (EALs). You can access the EAL Surfer at http://health.hawaii.gov/shwb/underground-storage-tanks/.  

              3.7 EPA Enforcement Actions Taken in Hawaii

              Upon state program approval (SPA), Hawaii has primary responsibility for ensuring compliance with the UST program in the State. However, the Environmental Protection Agency (EPA) retains the authority to take independent enforcement action in approved states in accordance with section 9006(a)(2) of the Resource Conservation and Recovery Act (RCRA). Pursuant to section 9006(a)(2), EPA may take direct action after notice to the approved state. EPA authority to initiate an independent enforcement action is not limited to the examples set forth below. The Agency may take direct action after consideration of all pertinent factors and consultation with Hawaii.

               Notwithstanding section 9006(a)(2) of RCRA, EPA will generally take civil or   
               administrative enforcement actions in Hawaii only under the following  
               circumstances:

 The State requests that EPA pursue a federal action and provides justification based on unique, case specific information
                              
          The State is not yet approved to take action or State authority 
                                 is limited
                           
          The State fails to take timely and/or appropriate action
                           
          Cases involving multi-state, multi-regional "national violators", or

 Cases brought to prevent non-complying companies from  
                                 obtaining economic advantages over their competitors, thereby 
                                 maintaining a "level playing field" for the regulated 
                                 community.

            The SPA Memorandum of Agreement between the State of Hawaii and the United States Environmental Protection Agency Region IX, October 2018, outlines a process for notifying the State of EPA's intent to initiate an independent enforcement action. EPA may need to conduct its own case development inspection and prepare additional documentation before proceeding to initiate an action. The State and EPA enforcement roles are further clarified in the Enforcement Partnership Agreement between the United States Environmental Protection Agency and the Hawaii Department of Health, October 1997. 

            EPA and the Department UST programs collaborate on inspection targeting, scheduling, and other surveillance activities. The collaboration includes opportunities to conduct joint inspections and engage in work-sharing and to clearly establish which agency assumes primary responsibility to pursue which inspections.

            EPA and the Department UST programs conduct regular enforcement conference calls. The calls cover current and upcoming inspections and enforcement actions. The calls include discussion of who will be the lead on which case and will encourage collaboration on specific cases. Future inspection and enforcement issues include planning discussions. Periodic meetings are scheduled between the Hawaii Deputy Director of Environmental Health and his EPA counterparts.

            The Department has primary responsibility to take timely and appropriate enforcement action in response to instances of non-compliance. For federally led inspections, EPA has primary responsibility. EPA may take action under other circumstances as described above. When EPA does take an action, the agency will give at least 30 days-notice to the State, except in an emergency.

            If disagreements arise over inspection or enforcement activities, resolution will first be attempted at the program manager level.  If the issue cannot be resolved at this level, it will be elevated to program senior management level. To resolve issues, preference will be given to direct discussions--either face-to-face or via a teleconference.

            If the Department is the lead agency for an enforcement action, it will ensure that the designated senior official at EPA is verbally contacted and informed of the date of an imminent press release and is faxed a copy of the press release before it is issued.

            Hawaii may find it necessary and advantageous to refer specific cases to Region 9 for federal enforcement. If the State decides to refer a case to EPA, this should be completed within 90 days of the original evaluation date. For the purpose of establishing a new evaluation date, the date of referral to EPA is then considered the evaluation date. The State will provide all case development information to Region 9 as part of the referral package. This should facilitate a reduction in the time needed for EPA case development.

 Enforcement Response Timeframes

            Response times are divided into two categories, formal enforcement actions and  informal enforcement actions (other than field citations). The guidelines are designed to expeditiously return non-compliant facilities to compliance with all applicable requirements of the State UST program. The timeline depicting these guidelines is attached as Appendix 3-I. The timeline establishes response time for three types of formal enforcement.  The timeline also establishes a 45 or 90-day timeframe for the Department to determine whether the appropriate enforcement response is an informal or formal enforcement action. Finally, the timeline establishes timeframes for the escalation from an informal to a formal enforcement response due to the violator's failure to return to compliance.  Refer also to section 3.7 for guidelines in referring cases to EPA.

            3.9 Penalties

            Guidance provided by the UST Program Administrative and Civil Penalty Guidance, (January, 2015) includes the logic and methods the State UST program uses to determine the assessed penalty for other than field citations. The two fundamental components in determining a penalty are the economic benefit component and the gravity-based component. The economic benefit component considers avoided costs and delayed costs. The gravity-based component considers the nature and history of the violation and of any prior violations, and the opportunity, difficulty, and history of compliance.

            HRS section 342L-10 establishes a maximum penalty of $25,000 for each individual tank per day per violation. In addition, any person who fails to comply with an order issued under HRS chapter 342L within the time specified in the order shall be fined not more than $25,000 for each day of noncompliance with the order.

 Enforcement Outreach Including Press Releases

            As a supplement to compliance outreach, enforcement outreach can be a useful tool for encouraging compliance in any enforcement program. Hawaii encourages compliance by publicizing enforcement actions. The State generally issues a press release following a NOVO. The press release may be for an individual site or it may be combined to include more than one site where a cluster of citations has been issued close together. The press release will summarize the violations and will include the amount of the proposed penalty. The Department may sometimes choose--if the parties agree to it-­ to issue a press release following the issuance of a final order. In that case, the release will summarize the settlement terms and will include the amount of the final penalty.

            The press release is drafted by the assigned inspector with input from the Deputy Attorney General. Once approved within SHWB, the press release is sent to the contact person at the Department Communications Office. The contact person reviews the press release and discusses it with the Deputy Director of the Department. The contact person edits the press release, as necessary, and prepares it for distribution. The press release is timed to go out on that day or the day the facility receives the NOVO. 

             Once the press release is issued, the communications contact will handle all inquiries from the press or public. Technical questions may be referred to the UST Section where the section supervisor will first take the inquiry. If appropriate, the section supervisor will pass the question on to the assigned supervisor.

             The Department also conducts meetings with various audiences as another means of enforcement outreach (not for any specific enforcement case).  In these meetings, UST personnel states the State's criteria for cleaning up  a LUST  site  and what is required to obtain a NFA letter. Past audiences have included sister State agencies, U.S. Department of Defense and other federal entities, consultants, and bankers.

             As a further means of outreach, the Department may compile enforcement statistics over a time period.  The department will then publicize the figures at meetings or hearings or in various publications. The statistics will include the number and type of actions taken, the types of violations noted, and the penalty results. These figures will be used to indicate that Hawaii is committed to enforcement of the State rules and penalizing violators.





































                                       
                                 APPENDIX 3-A

                         REQUEST FOR INFORMATION LETTER
                                       
                                                [Date]	U0000____
                                                               CERTIFIED MAIL NO.______
                                                               RETURN RECEIPT REQUESTED

            Owner's or Operator's Name Facility Name
            Facility Address 
            City, State, and Zip

            Dear Mr. [Name]:

                               Subject: [Facility Name, Address, Facility ID Number, Release ID Number (as appropriate)], Underground Storage Tank Request for Information

            On [Date], an underground storage tank (UST) Compliance Evaluation Inspection (with respect to the State UST laws) was conducted at [Facility name], [Facility ID Number], [Release ID Number, as appropriate] by representatives of the Hawaii Department of Health (the Department). During the inspection, information was gathered in accordance with section 342L-7 of the Hawaii Revised Statutes (HRS).

            There are additional questions that have arisen out of this inspection and we ask that you provide us with the information described below. HRS section 342L-7 requires any owner or operator of an underground storage tank or tank system to furnish information relating to the tanks or tank system to the Department upon a request from the Department.

            {If the letter is being written in response to a release, replace the above paragraph with the one that follows below:

            There are additional questions that have arisen concerning this release and we ask that you provide us with the information described below. HRS section 342L-7 requires "any owner or operator of an underground storage tank or tank system, and any person involved in response actions related to any releases from these tanks or tanks systems" to "furnish information relating to the tanks or tanks systems, including...any response actions relating to releases from the tanks or tank systems" to the Department upon a request from the Department.}

            Pursuant to HRS section 342L-7, we request that you provide the Department with single copies of the following information:

                  1.

                  2.

            
            
            
            
            Your response must include a letter signed by a duly authorized official of your facility, certifying the truth and veracity of the information supplied. 
            
            Failure to provide the information requested in this letter may result in the assessment of penalties under HRS section 342L-10(b).
            
            If any information submitted is entitled to copyright protection or confidential treatment, please assert a copyright and/or confidentiality claim. The Department will construe the failure to assert a copyright or confidentiality claim as a waiver of such claims, and any information submitted would be made available to the public by the Department without any copyright or confidentiality protection.

            Please submit your response within 30 days of your receipt of this letter. Your response should be addressed to:
                              
                                     		[  ], P.E., BRANCH CHIEF
                                   	           Solid and Hazardous Waste Branch 
                                     		Department of Health  
                                     		2827 Waimano Home Road #100
                                  		Pearl City, Hawaii 96782

            If you have any questions related to this matter, please contact [Inspector's Name] at 586- 4226.

                                           Sincerely,



                                                [   ], P.E., BRANCH CHIEF
                                                Solid and Hazardous Waste Branch





		Enclosure




		c:





















                                        
                                        
                                        
                                        
                                        
                                        
                                        
                                  APPENDIX 3-B

                                 WARNING LETTER


           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
                                        

                                        [Date] 						U0000
           
           
           
           WARNING LETTER                                           			CERTIFIED MAIL NO.____
                                                                 RETURN RECEIPT REQUESTED

           Owner's or Operator's Name Facility Name
           Facility Address City, State, and Zip

           Dear Mr. [Name]:

                                Subject: [Facility Name, Address, ID Number], Underground Storage Tank Compliance Evaluation Inspection

           On [Date], Department of Health (the Department) underground storage tank (UST) representative [EHS name] conducted an inspection at [Facility name], [ID Number]. During the inspection, information was gathered in accordance with section 342L-7 of the Hawaii Revised Statutes (HRS). A digital copy of the inspection report has been sent to the email address you provided, for your information and response.

            You are required to correct the identified areas of non-compliance and to submit documentation of their correction to the Department within 30 calendar days of your receipt of this letter. Your response must include a letter signed by a duly authorized official at your facility, certifying your plans to correct the identified areas of non-compliance. Documentation of your return to compliance may consist of photographs and other records.

            Any deficiencies which may be noted in the report are not necessarily inclusive and any omissions in the report shall not be construed as a determination of compliance with any applicable laws. Also, any omission to cite other violations is not intended to nor shall be binding upon the Department.

            The Department reserves the right to take enforcement action including actions for violations not mentioned in this letter. Violations of HAR Chapter 342L or any rules adopted thereunder are punishable by penalties of up to $25,000 for each tank for each day of each violation, as provided by HRS section 342L-10.

            If any information attached to or referenced in the inspection report is entitled to copyright protection or confidential treatment, please assert a copyright and/or confidentiality claim. The Department will construe the failure to assert a copyright or 
            
            
            
            
            confidentiality claim as a waiver of such claims, and any information attached to or referenced in the inspection report would be made available to the public by the Department without any copyright or confidentiality protection.

            Your response to this Warning Letter, due to the Department within 30 calendar days of your receipt of this letter, shall be mailed to:                                                                                                                    
                               
                             [  ], P.E., BRANCH CHIEF
                             Solid and Hazardous Waste Branch
                             Department of Health
                             2827 Waimano Home Road, #100
                             Pearl City, Hawaii 96782

           If you have any questions related to this letter or the technical aspects of the inspection report, please contact [Inspector's Name] at 586-4226.

                                          Sincerely,



                                                [  ], P.E., BRANCH CHIEF
                                                Solid and Hazardous Waste Branch



           Enclosure

           c:




















                                  APPENDIX 3-C

                        VERIFICATION OF COMPLIANCE LETTER
                                       
	[Date]	U0000____			



		[Owner or Operator's Name]
		[Facility Name]
		[Facility Address]
		City, State, and Zip Code

		Dear Mr. [Name]:

                        SUBJECT:	[Facility Name, Address, ID Number], Underground Storage Tank 
					Correction of Violation Letter 
	
            On [Date], an underground storage tank (UST) Compliance Evaluation Inspection was conducted at [Facility name], [ID Number], by inspector [name] of the Hawaii Department of Health. During the inspection, information was gathered in accordance with section 342L-7 of the Hawaii Revised Statutes (HRS). A Warning Letter and the inspection report were sent to you on [Date].
            
            You were required to correct the identified areas of non-compliance and to submit documentation of their correction to the state. 
            
            The facility's subsequent response dated [Date], adequately addresses the violations and documents the facility's return to compliance with the regulations cited in the inspection report. This letter should not be construed as a determination of your compliance with any other applicable regulations. 

            Should you have any questions concerning the inspections or the state rules, please contact [Inspector's Name] of our Underground Storage Tank Section at (808) 586-4226.
						
	
		

			Sincerely,



						[  ], P.E., BRANCH CHIEF	
						Solid and Hazardous Waste Branch





		c: 





















                                  APPENDIX 3-D

                   LETTER GRANTING AN EXTENSION FOR COMPLIANCE
                                       
                        







                        [Date]	U0000_____
            
            
            
            Owner's or Operator's Name Facility Name
            Facility Address 
            City, State, and Zip

            Dear [Title, Name]:

                                Subject: [Facility Name, Address, ID Number], Underground Storage Tank Compliance Evaluation Inspection

            We have received your response to our Warning Letter dated [Date] concerning [Facility Name], [ID Number]. Your request for an additional [up to 60] days from [Original compliance due date] to return to compliance has been approved.

            If you have any questions, please contact [Inspector's Name] at 586-4226.

                                           Sincerely,



                                                [  ], P.E., BRANCH CHIEF
                                                Solid and Hazardous Waste Branch

            




















                                               
                                               
                                               

                                               

                                               
                                               
                                         APPENDIX 3-E

                                    SECOND WARNING LETTER





      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
      

      
      SECOND WARNING LETTER					

CERTIFIED MAIL NO._____                                                             RETURN RECEIPT REQUESTED
            
            
            
            Owner's or Operator's Name Facility Name
            Facility Address 
            City, State, and Zip

            Dear [Title, Name]:

                                 Subject: [Facility Name, Address, ID Number], Underground Storage Tank Response to Department of Health Warning Letter

            On [Date], an underground storage tank (UST) Compliance Evaluation Inspection (with respect to the State UST laws) was conducted at [Facility name], [ID Number], by representatives of the Hawaii Department of Health (the Department). During the inspection, information was gathered in accordance with section 342L-7 of the Hawaii Revised Statutes (HRS). A Warning Letter and the inspection report was sent to you on [Date].

            You were required to correct the identified areas of non-compliance and to submit documentation of their correction to the Department. Your response to the Warning Letter dated [Date], has been received and evaluated.

            Our evaluation of your response has found it to be inadequate or incomplete in one of the violations. Your response did not contain the necessary documents to show that the violation cited in the inspection has been corrected. In addition, a follow-up inspection was made on [Date] by [Inspector's Name]. From the follow-up inspection, we find that the facility has not yet fully corrected the remaining UST violation:

 [Cite and describe violation].
                         Action Required: [Describe actions and reference State rules].

             Your failure to provide the corrective action documentation requested in this 
             Warning Letter may result in an enforcement action by the State. Violations of HAR Chapter 342L or any rules adopted thereunder are punishable by penalties of up to $25,000 for each tank for each day of each violation, as provided by HRS section 342L-10.

             Your response to this Second Warning Letter, due to the Department within 30 calendar days of your receipt of this letter, shall be mailed to:
                                    [  ], P.E., Branch Chief 
                                    Solid and Hazardous Waste Branch Department of Health
                                    2827 Waimano Home Road #100 
                                   Pearl City, Hawaii 96782

           If you have any questions related to this letter or the technical aspects of the inspection report, please contact [Inspector's Name] at 586-4226.

                                           Sincerely,



                                                [  ], P.E., A CHIEF
                                                Solid and Hazardous Waste Branch

           

            c: 



















                                    APPENDIX 3-F

                          NOTICE OF VIOLATION AND ORDER
                                       
                                  IN THE DEPARTMENT OF  HEALTH STATE OF HAWAII

           DEPARTMENT OF HEALTH, 	)	DOCKET NO.	98-UST-EA-
     STATE OF HAWAII,				   )
           	)
                     Complainant, 	)	
           	)
           	                   vs.                                   )	NOTICE OF VIOLATION ORDER; 	)	CERTIFICATE OF SERVICE
                       [Name]	)
                                       )
                        Respondent.	)
                                                                                          )

           This Notice of Violation and Order ("NOVO") is an administrative enforcement action initiated pursuant to §342L-8 and chapter 91 of the Hawaii Revised Statutes ("HRS") by the Department of                     Health (Department) against [Name of facility], a[n] [State where incorporated] corporation, doing business as [Name] ("Respondent").

                              NOTICE OF VIOLATION

 INTRODUCTION

            Respondent owns and operates a facility that engages in [nature of business].	The facility is located at [Facility address] (the "Facility") .	The Facility's Identification No. is [ID number].	[As appropriate, specify the Release ID No., the Permit No. and/or the Variance No.]

                                2.  	Based on information made available to the Department, it has been determined that Respondent was and continues to be in violation of §§[citation(s)]  of the Hawaii Administrative Rules ("HAR") and HRS §§[citation(s)].

                                                                               
            JURISDICTION
     
 HRS §342L-8 authorizes the Department to issue orders assessing penalties for any  
           past or current violation of HRS chapter 342L or                         the rules adopted thereunder and to require compliance immediately  or within a specified time.

             Respondent is the "owner/operator" of a UST system as defined in HRS §342L-1 that engages in [nature of business]. Respondent [describe activities and actions that make the facility subject to the State UST statute and/or rules].
                  
             Respondent is a UST "owner/operator" as defined in HAR §11-280.1-12.
                  
             [List other items that establish the jurisdiction]
                  
             On [Date of inspection], the Department conducted an inspection at  the Facility.

             Based on the information obtained during the inspection, the Department has determined that Respondent was and is in violation of  HRS §§[citation(s)] and HAR §§[citation(s)].

             VIOLATIONS

                                          COUNT I
                                             
                                 ([Describe first count])

             Paragraphs 1 through 10 above are incorporated herein by this reference as if they were set forth here in their entirety.

            10.	On [Date of inspection], the Department inspector  observed [described observations as they relate to the  count].

      [Describe circumstances that establish that the respondent is subject to the laws
            and/or rules governing the violation and that the respondent did violate those laws and/or rules.]
                  
      [Describe circumstances]
                  
             Respondent has violated and continues to violate HRS §§[citation(s)] and HAR §§[citation(s)]. 
            [List other Counts as appropriate]
            
            
             ADMINISTRATIVE PENALTY
                                                                               
            HRS  §  342L-10 authorizes an administrative penalty of up to $25,000 for each individual tank per each day of each violation of chapter 342L, any rule adopted thereunder or any term or condition of a permit pursuant to HRS chapter 342L. Based upon the facts alleged in this NOVO, those factors which the Department must consider pursuant to HRS § 342L-11 and the Department's Penalty Policy, the                     Department assesses the administrative penalty set forth below against the Respondent for the violations alleged in this NOVO. Penalties for any violations, which occur after the filing of this NOVO, shall be determined at the hearing if one is requested. The penalties contained in this NOVO were calculated in accordance with the January 2015 "Department of Health Underground/Leaking Underground Storage Tank Program  -  Administrative and Civil Penalty Guidance." Under the penalty policy, the Department calculates a penalty based upon the gravity of the violations, the economic benefit, if any, that was derived from noncompliance and other case-specific factors as deemed appropriate. 


                                           Count I 
           
           [Describe the Count]
           ([Date noncompliance began] to [Date of inspection]) 

           Using the penalty assessment matrix, the Department classified Count I as presenting a [major, moderate, or minor] potential for harm and a [major, moderate, or minor] deviation from the requirements. [Describe rationale for the matrix        values. Describe other factors, e.g. the days of noncompliance multiplier, that were used to derive the penalty.]

           Penalties for violations after [Date  of inspection], shall be determined at the hearing, if one is requested by Respondent.

           [List amounts for other Counts as appropriate]


                                     ORDER

 COMPLIANCE
           
           Respondent is hereby ordered to comply with the applicable provisions of HRS §342L and HAR §11.280.1. 

             ADMINISTRATIVE PENALTY
           
           Respondent is hereby ordered to submit the sum                                                                   of [to be determined] to the Underground Storage Tank Section of the Hawaii Department of Health, 2827 Waimano Home Road #100, Pearl City, Hawaii 96782. Payment shall be made by check or cashier's check made payable to the "State of Hawaii". Payment is due and payable twenty (20) days after service of this Notice of Violation and Order unless, before the twenty days expires, Respondent requests in writing a              hearing.      All days are consecutive calendar days from the date of service of this NOVO. All certifications shall be signed by the president, secretary, treasurer or a vice-president of Respondent and shall state that the information contained therein is true, accurate and complete. It is hereby ordered that:

 Within sixty (60) days [or other timeframe], Respondent shall [Describe action required] (to ensure compliance with HRS §[citation] and HAR §[citation]).

             Within sixty (60) days [or other timeframe], Respondent shall [Describe action required] (to ensure compliance with HRS §[citation] and HAR §[citation]).

            Nothing in this Order shall be construed to limit the authority of the Director of Health to take any actions authorized by law with respect to Respondent or the Facility.

            ADDRESS FOR MAILING
            
            Respondent shall provide documentation of compliance         with the above Order with submittals and certifications within the time periods specified above to:

                        Underground Storage Tank Section 
                        Hawaii Department of Health 
                        2827 Waimano Home Road #100
                        Pearl City, Hawaii 96782
                             
                             NOTICE OF RIGHT TO REQUEST A HEARING

            This Notice of Violation and Order shall become final 20 days after it has been served upon the Respondent, unless before the 20 days expire, Respondent submits a written request to the Director of Health for a hearing pursuant to HRS chapter 91. If a hearing is requested, the hearing will be conducted in accordance with HRS chapter 91. The hearing will address the issues raised in this Notice of Violation and Order. After such a hearing, this Order will be affirmed, modified, or rescinded by the Director of Health.
            
            
            
            
            Failure to comply with this Order may subject Respondent  to additional penalties and measures under HRS chapter 342L. Please direct the written request for a hearing, if any, and all inquiries concerning this case to: 
                       
                       
                       [     ], P.E., Branch Chief
                       Solid and Hazardous Waste Branch 
                       Hawaii Department of Health
                       2827 Waimano Home Road#100  
                       Pearl City, Hawaii 96782
                       
                       Telephone:  586-4226
                                            DATED:     Honolulu, Hawaii, 	_____	

                            If you have any questions related to this letter or the technical aspects of the inspection report, please contact [inspector's name] at 586-4226. 



		Sincerely, 



                                                      DEPARTMENT OF HEALTH STATE OF HAWAII



                                                       BRUCE S. ANDERSON, Ph.D.
                                                       Deputy Director for Environmental Health










                                      IN  THE       DEPARTMENT OF   HEALTH 
                                                 STATE OF HAWAII

           In the matter of	)	DOCKET NO.	98-UST-EA-____
                                              )
           [Name of Facility],	) a[n] [State where incorporated]                              )
           Corporation,	)	CERTIFICATE OF SERVICE
           dba [Name]	)
                                       )
                         Respondent.	)
           ________________________________ )
                                       
                            CERTIFICATE OF SERVICE

            I HEREBY CERTIFY that I served a copy of the documents described below by mailing, via certified mail, return receipt requested, on this date, to the person(s) named below at the address(es) indicated.
            
            DOCUMENT{S)
            
            Notice of Violation; Order 
      PERSON(S) SERVED AND ADDRESS (ES):

            Owner's Name 
            Facility Name 
            Facility Address 
            City, State, and Zip
            [Certified Mail No.]


                  DATED:	Honolulu, Hawaii,	 	




                                                [   ], P.E., BRANCH CHIEF
                                                Solid & Hazardous Waste Branch, 
                                                Department of Health



















                                    APPENDIX 3-G

                            NO FURTHER ACTION LETTER
                                       
                                                 [Date]	U0000

            Owner's or Operator's Name Facility Name
            Facility Address 
            City, State, and Zip

            Dear Mr. [Name]:

                                Subject: [Facility Name, Address, Facility ID Number/Release ID Number] Underground Storage Tank

            The Department of Health has reviewed the following reports:

 [Title of Closure Report], [Date), prepared by [Name of consultant); and

 [Title of related document, e.g. Site Assessment], [Date], prepared by [Name of consultant]. Please note the document has been placed in the public record.

            If any information in the above reports is entitled to copyright or confidential treatment, please assert a copyright and/or confidentiality claim. The Department will construe the failure to assert a copyright or confidentiality claim as a waiver of such claims, and any information in the reports would be made available to the public by the Department without any copyright or confidentiality protection.

            Based on the information provided, we concur with your consultant's conclusion that no further action is necessary in response to this release.  However, you should note that, if in the future new information and data indicate the presence of contamination at or originating from the former release location, additional investigative and cleanup actions may be required.

            If you have any questions, please contact [Staff Person's Name] at 586-4226.

                                            Sincerely,



                                                 [  ], P.E., BRANCH CHIEF
                                                 Solid and Hazardous Waste Branch

             

             c: 





















                                          APPENDIX 3-H

                                    CONFIRMED RELEASE LETTER
                                               [Date]	U0000_
           [Owner's or Operator's Name] [Facility Name]
           [Facility Address] 
           [City, State, and Zip]

           Dear [Name]:

                               Subject: [Facility Name, Address, Facility ID Number/Release ID Number] Underground Storage Tank

           This letter is in response to your [Date of release confirmation], telephone report of a confirmed release of [regulated substance] from an [volume capacity] underground storage tank (UST) located at [ Facility address on record] to the Department of Health (The Department) Underground Storage Tank (UST) Section .

           State UST rules (Hawaii Administrative Rules (HAR) 11-280.1, Subchapter 6  require UST owners and operators investigate and clean up releases of regulated substances from their UST systems.
           
           Guidance documents can be found on the Department's Underground Storage Tank website at http://health.hawaii.gov/shwb/underground-storage-tanks/. 
           
           A site assessment is required. Owners and operators must measure for the presence 
           of a release where contamination is most likely to be present at the UST site. In 
           selecting sample types and locations, owners and operators must consider the nature of the stored substance, the initial alarms or cause for suspicion, type of backfill 
           and surrounding soil, depth and flow gradient of groundwater and other factors 
           appropriate for identifying the presence and source of the release. 
           
           Please follow Table 9-5 in the Department's Hazard Evaluation & Emergency 
           Response Office's Technical Guidance Manual (HEER TGM) for laboratory analyses required by fuel type and guidance for sampling at http://www.hawaiidoh.org/tgm.aspx. 

           Owners and operators of confirmed UST release sites are required to send the following 
           documentation to our office: 

                 1,	Confirmed Release Notification Form (CRN). Required submittal within 7 days of confirming the release (§11-280.1-52(a)).
                 
 Initial Abatement Measures and Site Assessment. Within 20 days after 
                 release confirmation, owners and operators must submit a report to this office summarizing the initial abatement steps taken under HAR 11-280.1-62(a) and any resulting information or data. 
                 
 Current Evidence of Financial Responsibility. Submit current evidence of financial responsibility (for example, a copy of a current UST insurance policy) within 30 days of identifying the release (HAR 11.280.1-93(b)).

            Initial Site Characterization Report  -  Within 45 days of release confirmation, owners
                 and operators must assemble information about the site and the nature of the release, 
                 including information gained while confirming the release or completing the initial 
                 abatement measures in sections 11-280.1-60 and 11-280.1-61, and data on the nature and 
                 estimated quantity of release, data from available source and all previous site 
                 investigations, soil abatement activities, groundwater and soil vapor sampling data, water 
                 quality, use and location of wells in the area, location of utilities, and other requirements
                 in accordance with HAR 11-280.1-63. Follow the format of a Site Investigation Report 
                 in Section 18.5.9 of the Department's Hazard Evaluation & Emergency Response 
                 Office's Technical Guidance Manual (HEER TGM).   
	
                  Free Product Removal  -  removal of petroleum free product to the maximum
                 extent practicable in accordance with HAR 11-280.1-64. If free product is found in the sub-surface of a confirmed UST release site, then a Free Product 
                 Removal Report is due to this office within 45 days of confirming the release. 

                  Notification of members of the affected public  -  within 90 days of confirming a release, owners and operators shall notify members of the public in writing who are directly affected by the confirmed release in accordance with HAR 11-280.1-65.1(a).

           If release response activities continue beyond ninety (90) days, the first Quarterly Release Response Report is required beginning 180 days of the confirmed release date and every 90 days thereafter until release response actions have been completed (HAR §11-280.1-65.2). 
           
           Refer to the Department HEER Environmental Action Levels (EALs) and guidance as well as the HEER TGM, available at our website. Please initiate release response activities in accordance with the guidance as soon as possible. The consultant you select should perform all necessary environmental services and provide required reports and documentation to the Department.  
           
           Please include your Department issued UST Facility ID and Release ID number(s) provided on the first page of this letter on all future correspondence regarding this release. An electronic copy in a single pdf file on CD is required for each report submitted to the Department UST section.  
           
           Note that effective July 15, 2018, the Hawaii Administrative Rules (HAR) 11-281 has been repealed and replaced with HAR 11-280.1. For a digital copy of the current regulations go to https://health.hawaii.gov/shwb/files/2018/07/11-280.1.pdf. 

     If you have any questions regarding this letter, please contact me at 586-4226.
                                                
                                                Sincerely,


                                                [STAFF PERSON'S NAME]
                                                [Title]
                                                Underground Storage Tank Section Solid and Hazardous Waste Branch



            Enclosures
            
            c: 




















                                         APPENDIX 3-I

                                 ENFORCEMENT RESPONSE TIMELINE
                                       
                                 TIMELINE FOR STATE UST ENFORCEMENT	


Day 0 
Evaluation Date
Day 0 
Evaluation Date

										


Day 45 Formal Enforcement Appropriate?
Day 45 Formal Enforcement Appropriate?
Day 45 compliance Achieved?
Day 45 compliance Achieved?
                                                         
Day 45 informal Enforcement Response Issued
Day 45 informal Enforcement Response Issued
   Done

   Done

	YES	NO

                                                        
                                                         
	YES


	NO
                Day 90 NOVO or Referral to AG
Day 90 NOVO or Referral to AG
                     Day 210     
Referral to AG
     Day 210     
Referral to AG
      Day 0    Evaluation Date 
      Day 0    Evaluation Date 
                	REFERRAL
                
                
                
                
                
                	NOVO
                
                         
          Day 180                               NOVO Issued
         
          Day 180                               NOVO Issued
                
                
                
                
                
                
                
                
                                                           
      Day 300                           Final Order Issued 
                                           
      Day 300                           Final Order Issued 
                
                
                
                
                
                
                
                
                Note: All days are calendar days measured from Day 0.

                                    SECTION 4

                  POTENTIALLY RESPONSIBLE PARTY (PRP) SEARCHES

     To effectively enforce the underground storage tank (UST) program's requirements, the 
     Department must first determine the identity of the person(s) responsible for complying 
     with UST requirements (O/O, land owners, business tenants etc.). In the Superfund program, 
     the process of determining who may be responsible for taking a response action at a cleanup 
     site is called Potentially Responsible Party (PRP) search. Although the UST program's 
           statutory basis of action differs, the search process is comparable; there also is significant overlap between the Hawaii UST program and the Hawaii state superfund program. Therefore, 
           in the interest of cross-program consistency we will use the Superfund term "potentially 
           responsible party search". 
           
                            4.1  PRP Search Objectives
      Initially, PRP searches are conducted to answer one or both of the following questions:
      
 Are there USTs and/or other potential sources of environmental contamination located 
               at nearby properties? (This aspect of a PRP search is similar to the Phase 1 of the 
            environmental site assessment process used by industry.)
            
 Who are the responsible parties, i.e. UST )/O per Hawaii Revised Statutes (HRS) 342L, and "facility owners and operators" per HRS 128D? (This aspect of a PRP search is similar to determining the proper recipient of a Notice of Violation and Order, as discussed previously in section 3.1.4.)

  		In some cases, the identity of the O/O of the UST may not be immediately apparent. For 
                       example, a UST may be discovered which has not been used for some time. Or, there may 
                       be a dispute between involved parties as to who is actually responsible for the UST, especially 
                       in cases where there are landlord-tenant disputes or if the facility has been owned or operated  
                      by several persons over its lifetime.

      In Hawaii, releases of regulated substances from USTs are subject to both the State UST
      Statutes (HRS 342L) and the State environmental response law (HRS 128D). Depending 
      on the decision, the Department may elect to take action under one or both of these two laws.

      4.2    Potentially Responsible Parties

       	The following persons ("potentially responsible parties") are legally responsible for taking
      action at UST release sites under the following statutes:

                                             HRS 342L		The person(s) responsible for compliance with HRS 342L are the O/O of the UST. Note that under HRS 342L, the state has no authority to compel the land owner to take action.		
                        
                        HRS 128D	The person(s) responsible for compliance with HRS 128D are the owner  of the facility and the  operator  of  the  facility. Here, "facility" can be  construed to mean the property; therefore, the land owner is one of the persons responsible for taking action to comply with this law.

            Note: If compliance with portions of HRS 342L other than corrective action (e.g., closure of an abandoned tank) is desired, HRS 128D is not involved at all since it only applies to releases.

 Information Sources

            Various resources are available for researching the presence of USTs and/or other potential sources of environmental contamination and the identity of potentially responsible parties.

      UST Section facility files

            If UST Section has a file for the UST, review all records in the file, checking for all mentions of business names and personal names. Don't forget to check cc entries, letterhead information, and telephone log entries. If the business has moved or is no longer in operation, it is often possible to track it down by contacting other businesses or persons who have had dealings with the subject business.

      USTRAC

            The UST Section's USTRAC database may be searched by many different criteria - owner name, facility name, street address, etc. USTRAC can also help determine if a business is involved in other UST facilities other than the subject facility.

      Information from the current land owner and current tenant

            Communication with the current land owner and the current tenant (if applicable) can often provide useful information regarding property use, both current and historical, as well as names and addresses of prior tenants and owners, and information regarding land use on nearby properties. 

      Property tax records

            Land ownership records in Hawaii are centralized and easy to obtain. Land ownership can be quickly determined by referring to property tax records. Real property tax records are available at http://www.hawaiidoh.org/tgm.aspx. Use these indexes to obtain the name and address of the current land owner. In addition, the tax maps themselves may also be annotated with tenant information. The tenant information provided on tax maps is sometimes incomplete or out-of-date and should not be considered definitive. However, old information may sometimes be more useful since it can indicate PRPs based on past use of the site.

     On-line Search Engines  

            On-line search engines like Google are useful tools to find out physical location, existing phone numbers, email address and other pertinent information about potential sites, owners and operators.  

      HEER HEPCRA Database 

            Facilities storing no less than 10,000 of all hazardous substances (threshold level of 75,000 gallons for gasoline and 100,000 for diesel) must report annually to the Department Office of Hazard Evaluation and Emergency Response (HEER) pursuant to the Hawaii Emergency Planning and Community Right-to­ Know Act (HEPCRA) (HRS 128E). Go to http://eha-web.doh.hawaii.gov/eha-cma/Leaders/HEER/hepcra-hazardous-chemical-storage-and-tier-II-reporting for more information. Or call 586-4350. 
            
            HEER release notification reports

           This database is a log of all reports since 1988 that the HEER Office has received reporting releases or potential releases of hazardous substances. In the State of Hawaii, petroleum is included in the definition of "hazardous substance", so petroleum releases from USTs may be listed on this database. For more information call 586-4350.

     HEER Active site list

            If a hazardous substance release occurs and the HEER Office determines that further investigation is warranted, the release is placed on this list for additional follow-up. For more information call 586-4350.
                        
      Flammable and combustible liquids storage permits

            Storage of flammable or combustible liquids (generally, motor fuels) is regulated by the county fire departments. The appropriate offices to contact are:

Island
Oahu
   Office
   Honolulu City & County Fire Prevention
 Phone

   Bureau
 488-7955
Maui, Molokai, Lanai
   Maui County Department of Fire Control
 876-4690
 Hawaii
   Hawaii County Fire Department
 932-2912
 Kauai
   Kauai County Fire Department
 241-4985

      Petroleum inspection database

            All dispensers used to sell fuel to the public in Hawaii are subject to inspection by the Measurement Standards Branch of the Department of Agriculture (1851 Auiki Street, Honolulu, phone 832-0690) to ensure proper calibration. The Measurement Standards Branch maintains a database of these dispensers, which may be fueled by either USTs or aboveground storage tanks.

            In determining what level of enforcement to pursue and the amount of penalties, if appropriate, the enforcement staff person considers what message he or she wants to convey to the regulated community concerning the department's approach to enforcement. This is also an aspect of enforcement outreach.

 Potentially Responsible Parties (PRP) Search Report  
            EPA offers comprehensive assistance to generate a PRP Report through a regularly updated PRP Search Manual available on-line at https://www.epa.gov/enforcement/prp-search-manual. To be effective and timely it is important to follow guidance from this manual. For example, Appendix C of this manual offers a Checklist that can be used to begin a report.  
            








...
                               
                                           SECTION 5

                            STATE-LEAD CORRECTIVE ACTIONS UNDER THE LUST TRUST FUND

 Hawaii Leaking Underground Storage Tank (LUST) Trust Fund

            Hawaii Revised Statutes (HRS) 342L-51 established a state revolving fund, called the Hawaii Leaking Underground Storage Tank Trust Fund (Hawaii LUST Trust Fund), to provide money for State-lead corrective actions for petroleum UST releases only. The Hawaii LUST Trust Fund is the State counterpart to the federal LUST Trust Fund, which is funded by a 0.1cent/gallon federal petroleum tax.

            The Hawaii LUST Trust Fund receives the bulk of its money from the federal LUST Trust Fund via grants from the Environmental Protection Agency (EPA). Other funding sources include appropriations from the State Legislature, any penalties or settlement amounts collected by the Department for violations of underground storage tank (UST) requirements, and any expended costs which have been recovered.

            HRS 342L-52 authorizes the Department to take corrective actions using the Hawaii LUST Trust Fund if certain conditions are met. Appendices 5-A through 5-C present a detailed description of procedures for determining Hawaii LUST Trust Fund eligibility.

            NOTE: The law allows the Department to take action; it does not compel 
            the Department to take action.

             Steps for Taking Action Under the Hawaii LUST Trust Fund

             There are several steps required to take a LUST Trust Fund response action:

 Determine eligibility.

                   The site must meet the conditions described in the LUST Trust Fund Eligibility Conditions (Appendix 5-A). Use the LUST Trust Fund Eligibility  Flowcharts (Appendix 5-B) as an aid to determine eligibility. Provide documentation as indicated in the LUST Trust Fund Eligibility Documentation Worksheet (Appendix 5-C).

              Exhaust other courses of action.

                   Prior to using LUST Trust Fund money, other means of addressing the release should be evaluated, such as informal enforcement, formal enforcement, or taking a State-lead action under other authorities such as the Environmental Response Revolving Fund. The decision to take action, and the rationale for site selection, must be documented.

              Obtain internal approval to proceed.

                   Obtain approval from the Department supervisor to undertake a LUST Trust Fund action. Use the LUST Trust Fund Expenditure Approval form (Appendix 5-D) to document management approval.
                   
             Inform owner or operator.

                  Inform the owner and operator of the UST of the Department's intention to take a LUST Trust Fund action and, unless immediate action is necessary, give them a  chance to take the action on their own rather  than  have  the Department do it.  Use the Notice of Intent to Take LUST Trust Fund Action Sample Letter (Appendix 5-E) as a model.

             Take the action and maintain documentation.

                  Depending on the situation, an action may entail procuring the services of a contractor. All contract documents, including work orders, invoices, etc., must be maintained in anticipation of future cost recovery. See EPA's Leaking Underground Storage Tank Trust Fund State Financial Management Handbook (March 1988) accessible at https://nepis.epa.gov, and Section 7 below, for details on maintenance of site files.

                  When presented with a demand for payment of LUST Trust Fund costs, owners and operators may claim that the actions taken were inappropriate or unnecessary. To address this issue, all LUST Trust Fund actions should be properly documented and justified. Release response reports should follow the formats presented in the Department guidance, such as the HEER Technical Guidance Manual, and all decision-making points, such as rationales for number and location of samples during investigations, as well as rationales for selection of remedial methods, should be well-documented.

             Recover costs.

                  See Section 6 on procedures for cost recovery.



























                                  APPENDIX 5-A

                               LUST TRUST FUND ELIGIBILITY CONDITIONS (HRS 342L-52)
                                       
                               LUST TRUST FUND ELIGIBILITY CONDITIONS


            HRS 342L-52	Response to suspected or confirmed releases.

 In the event of a release from an underground storage tank or tank system, the Department may:

                                                     (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

                        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.

                  (b)	In the event of a release from an underground storage tank or tank system, the Department  may  take all actions and issue such orders as are described in subsection (a); provided that the Department may undertake response actions with respect to any release 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:

 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:
 An o/o of the tank or tank system; 
 Subject to the response rules; and
                        (C)	Capable of carrying out the response action properly;

                         Prompt action by the Department is required to protect human health or the environment;

                         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 to assure effective response action; or
                                                                               
                          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 and operators to undertake response actions to those cases involving releases from USTs or tank systems that pose the greatest threat to human health or the environment.

                  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.

                  Response actions undertaken by the Department may include the temporary or permanent relocation of residents and the provision of alternative household water supplies.

                  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 to complete any exposure assessment. The costs of any such assessment may be deemed to have been incurred in undertaking the response action.

                  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.



















                                         APPENDIX 5-B

                        LUST TRUST FUND ELIGIBILITY DOCUMENTATION WORK

LUST TRUST FUND ELIGIBILITY DOCUMENTATION WORKSHEET

HRS 342L-52 establishes the conditions under which the State may take a Hawaii LUST Trust Fund response action. Depending on the basis of eligibility, different conditions must be met in order to qualify for a State-lead LUST Trust Fund response action. See the flowcharts for details. Following is a list of the eligibility conditions which may need to be met, and what type of documentation is needed for each:
           
       Is a response action necessary to protect human health or the environment?
     [342L-52(a)(1)(2) and 342L-52(b)(2)]
           
      Generally, a response action is necessary if the release exceeds the Department's action levels. Documentation may consist of analytical data to this effect.
           
      2.	Can the Department identify, within the time necessary to protect human health or the environment, a solvent owner or operator of the tank or tank system? [342L-52(a)(2)]
           
      If the identity of a solvent owner or operator is not obvious, the department should conduct a PRP search. The "time necessary to protect human health and the environment" varies depending on the conditions of the release. Provide documentation that either (1) a PRP search has been conducted, with the results, or (2) there is a need to undertake a prompt response action, before the PRP search can be completed, based on the conditions of the release.
           
      3.	The department has cause to believe that such person cannot or will not properly undertake a response action [342L-52(b)(1)(C)]
           
      Failure to comply with official enforcement efforts is sufficient cause. Provide documentation (warning letters, NOVOs, etc.) that the owner and operator have been given the opportunity to take the response action on their own, but no action was taken. Note that this failure to comply may not necessarily be due to an O/O's refusal to comply with requirements; it may be that an O/O, although solvent, is unable to pay for the response action or is otherwise unable to take the action.
           
      4.	Release is among those which pose the greatest threat to human health or the environment [342L-52(b), last sentence]
           
      Determination of "greatest threat" is based on the UST Section's release prioritization system. Provide documentation that the environmental impact posed by the release ranks among those which pose the greatest threat.
           
      5.	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: (A) An owner or operator of the tank or tank system; (B) Subject to the response action rules; and (C) Capable of carrying out the response action properly [342L-52(b)(1)]
           
      Provide documentation either that (1) a PRP search has been conducted, and that no solvent owner or operator was identified within ninety days, or (2) a prompt response action is needed before the PRP search could be completed. The "capable of carrying out the response action properly" condition is conceptually similar to the "solvent O/O" and "cannot or will not properly undertake" provisions in 342L-52(a); similar arguments regarding inability to pay therefore apply here as well.
           
      6.	Prompt action by the department is required to protect human health or the environment [342L-52(b)(2)]
           
      Provide documentation that an exposure pathway which will expose humans or the environment to an unacceptable level of contaminants is either complete (actual exposure) or may be completed.
           
      7.	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 [342L-52(b)(3)]
           
      Provide documentation of:
           
             (a)	Financial responsibility coverage at the time of the release, as per HAR section 11-280.1-90;
           
             (b)	Total response costs incurred by the 0/0 nearing or exceeding the coverage amount, probably in the form of contractor invoices; and
           
             (c)	Determination by the director that expenditures from the fund are necessary in order to assure an effective response action. This should be in the form of a memo approved by the director (see Appendix 5-D for a sample).
           
      8.	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 [342L-52(b)(4)1]
           
      Provide a copy of the order, and a memo documenting the O/O's noncompliance with the order.
           
      9.	Immediate action is necessary to respond to an imminent and substantial endangerment of human health or the environment [HRS 342L-52(f), last sentence]
           
      Provide a memo describing the nature of the imminent and substantial endangerment posed by the release.
           
      10.	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 [HRS 342L-52(f), 1st sentence]
           
      Provide a memo documenting that no FR coverage was maintained or that FR coverage was not adequate.
            
   11.  Response action is necessary to protect human health or human   
            life [HRS 342L-52(f), 1st and 3rd sentences]
           
      "Protection of human health": provide documentation that the release exceeds levels protective of human health (ignore action levels based on environmental protection criteria, such as non-drinking-water groundwater action levels).
           
      "Protection of human life": provide a memo describing the nature of the threat posed to human life.


































                                         APPENDIX 5-C

                     LUST TRUST FUND ELIGIBILITY FLOWCHARTS
                                       
                 Conditions for State-Lead Release Response Actions under HRS §342L-52 for petroleum releases which occurred prior to the adoption of state UST rules

    START
    START
                                                    		                       	 
                  							                   			    
STOP  -  INELIGIBLE 
STOP  -  INELIGIBLE 
     OK  - ELIGIBLE                             "The Department shall seek full recovery of costs"
     OK  - ELIGIBLE                             "The Department shall seek full recovery of costs"
        OK  -  ELIGIBLE 
        OK  -  ELIGIBLE 
       OK  -  ELIGIBLE 
       OK  -  ELIGIBLE 
        OK  -  ELIGIBLE 
        LOW PRIORITY
        OK  -  ELIGIBLE 
        LOW PRIORITY
        OK  -  ELIGIBLE 
        OK  -  ELIGIBLE 
Is a response action necessary to protect           human health or human life?
Is a response action necessary to protect           human health or human life?
Does the Department have cause to believe that such person cannot or will not properly undertake a response action?
Does the Department have cause to believe that such person cannot or will not properly undertake a response action?
Has the owner or operator-maintained evidence of financial responsibility in amounts at least equal to the amounts established pursuant to section 342L-36?
Has the owner or operator-maintained evidence of financial responsibility in amounts at least equal to the amounts established pursuant to section 342L-36?
Is immediate action necessary to respond to an imminent and substantial endangerment of human health or the environment? 
Is immediate action necessary to respond to an imminent and substantial endangerment of human health or the environment? 
Can the Department identify, within the time necessary to protect human health or the environment, a solvent owner or operator of the tank or tank system? 
Can the Department identify, within the time necessary to protect human health or the environment, a solvent owner or operator of the tank or tank system? 
Is a response action necessary to protect human health or the environment? 
Is a response action necessary to protect human health or the environment? 
       STOP - INELIGIBLE
       STOP - INELIGIBLE
	                  							   NO																		                                                                                                        
                                
                               YES                         
                                   
                                                                     NO
                              
                              
                              
                              
                                 YES 
                                                         NO
                                      
                              
                              
                              
                                 YES                             
                              
                                                           YES 


                                       
                                       NO   			
                                    
                                          			     YES 
                                    
                                    
                                    
                                    
                                       NO 		
                                    
                                                     YES



                                     
                                    

       
      
      Conditions for State-Lead Release Response Actions under HRS §342L-52 for petroleum 
       releases which occurred after the adoption of state UST rules

                                        START
                                        START
                                       
                                                                                  
       STOP -- INELIGIBLE
     STOP -- INELIGIBLE
Is a response action necessary to protect human health or the environment?
Is a response action necessary to protect human health or the environment?
																					        NO
											
                                                                                  YES
LOW PRIORITY
LOW PRIORITY
Is this release among those which pose the greatest threat to human health or the environment? 
Is this release among those which pose the greatest threat to human health or the environment? 
										        NO

                                                                                   YES
Do one or more of the following conditions exist?

 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: (A) An owner or operator of the tank or tank system; (B) Subject to the response action rules, and (C) Capable of carrying out the response action properly; 
 Prompt action by the Department is required to protect human health or the environment; 
 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 
 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 342L-8 or 342L-9 to comply with the rules on response to suspected or confirmed releases.   
Do one or more of the following conditions exist?

 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: (A) An owner or operator of the tank or tank system; (B) Subject to the response action rules, and (C) Capable of carrying out the response action properly; 
 Prompt action by the Department is required to protect human health or the environment; 
 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 
 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 342L-8 or 342L-9 to comply with the rules on response to suspected or confirmed releases.   






STOP-INELIGIBLE


STOP-INELIGIBLE

											NO






Is immediate action necessary to respond to an imminent and substantial endangerment of human health or the environment? 
Is immediate action necessary to respond to an imminent and substantial endangerment of human health or the environment? 
											                                                                                                                                                                                    
                                                                                   YES                                                                 
                                                                                                                                        
                                                                                                                                   YES
   






       OK  --  ELIGIBLE
       OK  --  ELIGIBLE



     							NO				
        OK  -  ELIGIBLE
        OK  -  ELIGIBLE
Has the owner or operator-maintained evidence of financial responsibility in amounts at least equal to the amounts established pursuant to section 342L-36?
Has the owner or operator-maintained evidence of financial responsibility in amounts at least equal to the amounts established pursuant to section 342L-36?
                                                                                                                                    YES
          OK  -  ELIGIBLE 

"The Department shall seek      
      full recovery of costs"
          OK  -  ELIGIBLE 

"The Department shall seek      
      full recovery of costs"
                                    STOP  -  INELIGIBLE 
                                    STOP  -  INELIGIBLE 
Is a response action necessary to protect human health or human life?
Is a response action necessary to protect human health or human life?



                                                                                     NO
	

                                                                                      NO
	
	
           
           
           
           
           
           
           
           
           
           
           

           
           
           
           
           
           
           
                                                      APPPENDIX 5  -  D
                                         
                LUST TRUST FUND EXPENDITURE APPROVAL
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           


                                         
LUST TRUST FUND EXPENDITURE APPROVAL 
           
UST FACILITY ID:  _______________	UST RELEASE ID:  ____________
           
FACILITY NAME:  _________________________________________________
           
           
Briefly describe proposed Departmental action(s). Attach documentation as needed. 
           
_____________________________________________________________
           
_____________________________________________________________
           
_____________________________________________________________
           
_____________________________________________________________
           
_____________________________________________________________
           
_____________________________________________________________
           
Briefly describe the basis for Hawaii LUST Trust Fund eligibility. Attach documentation. 
           
_____________________________________________________________
           
         _____________________________________________________________
           
_____________________________________________________________
           
_____________________________________________________________
           
_____________________________________________________________
           
           
Circle one: 	APPROVED/ DISAPPROVED 
           
           
Signature:  ____________________________   DATE: _______________
           
           
           
           
           
           
           
           
           

           
           
           
           
           
           
           
           
           
           
           
           
           				   APPENDIX 5  -  E





           NOTICE OF INTENT TO TAKE LUST TRUST FUND ACTION 
           
                                   SAMPLE LETTER 
           
           
           
           
           
           
           
           
           
           
           

CERTIFIED MAIL No. [P 000 000 000] 
RETURN RECEIPT REQUESTED

[Company name] 
[Address] 
Dear [Mr. Owner]:
           
           Subject:   [FACILITY NAME], [ADDRESS], [FACILITY ID], [RELEASE ID]
           
The Hawaii Department of Health, Solid and Hazardous Waste Branch, Underground Storage Tank Section ("the Department", "we", "us") intends to  undertake release response actions to address a release of petroleum from an underground storage tank (UST) at the subject facility. We have determined that a State-lead release response action is necessary to protect human health and the environment from impacts posed by this release.
           
[INSERT SITE-SPECIFIC INFORMATION REGARDING THE RELEASE]
           
Pursuant to HRS §342L-52, we are authorized to undertake release response action to address releases of petroleum from underground storage tanks. As the [ owner or
operator ] of the UST, you are liable for all costs incurred in the undertaking of this release response action pursuant to HRS §342L-53. Should you wish to undertake the appropriate release response actions yourself, please contact [PROJECT OFFICER] of our Underground Storage Tank Section, at (808) 586-4226 by [DATE] and submit to our office a detailed scope of work for your proposed action within [TIMEFRAME].
           
Any legal questions regarding this letter should be directed to [Attorney's Name], Deputy Attorney General, Office of the Attorney General, 465 South King Street, Second Floor, Honolulu, Hawaii 96813, telephone (808) 587-3050. Should you have any questions regarding this letter, please contact [MR. OFFICER] at (808) 586-4226.
           
           
                                               Sincerely,

           										_______________________
           Attachments
           
                                                           
                                                 SECTION  6  
                                            COST RECOVERY
  6.1     Introduction
           
 The goal of the Leaking Underground Storage Tank (LUST) Unit is to oversee that appropriate response actions are taken at sites which have been subject to a release of regulated substances from underground storage tanks. In the majority of cases, response action is taken by the O/O and the Hawaii Department of Health (the Department) can issue to the O/O a finding that "no further action" is required for their site. 
 
 However, situations arise in which the O/O is recalcitrant to engage in the necessary site investigation, or cannot be located, and response actions are necessary to protect human health and the environment. As used in this document, the term "response action" includes site investigation and remedial activity as described at Hawaii Revised Statutes (HRS) § 342L-52 Response to suspected or confirmed releases. The term "state lead corrective action" or "state lead" will be used where State or Federal LUST Trust funds are used by the Department LUST Unit to undertake response actions.
           
 A major objective of the Federal LUST Trust Fund program is to give States maximum flexibility in managing the program within their jurisdiction. Therefore, the State of Hawaii has developed its own financial management procedures which meet the U.S. Environmental Protection Agency (EPA) LUST financial management and cost documentation requirements.  It is the intent of the Department to pursue cost recovery efficiently and aggressively without routine involvement of EPA or the Department of Justice, and that any monies recovered will be retained by the State of Hawaii and used on additional Fund-eligible cleanups or other activities as agreed upon in the Department/EPA Cooperative Agreement. In such cases, the Department will inform EPA of its intent to do so and maintain appropriate records to demonstrate how recovered monies were used.
           
 This document is designed to be used in conjunction with the EPA Office of Solid Waste and Emergency Response (OSWER) Directive 9610.1OA, and titled Cost Recovery Policy for the Leaking Underground Storage Tank Trust Fund Corrective Action Cooperative Agreements, dated November, 2016 available at https://nepis.epa.gov. The Department incorporates by reference the policies and procedures described in the above referenced EPA agreements. The user of this policy who is undertaking cost recovery efforts, should review and refer to these EPA for specifics of cost recovery matters not found in this document. As the Department LUST Unit undertakes and becomes experienced in cost recovery, this Department policy will become more detailed on certain cost recovery requirements and reliance on EPA policy documents will diminish. This cost recovery policy will be reviewed and revised (if required) by the Department LUST Unit on an annual basis.
           
 It is the intention of the LUST Section to recover expended monies from all financially solvent O/O's at which the State has expended LUST Trust Fund money. For this purpose, consistent and equitable procedures will be used for cost recovery. The State of Hawaii is therefore responsible for all legal, programmatic, and administrative activities necessary to recover expenditures from the LUST Trust Fund.
           
 LUST Trust Fund monies will not be used at any government facilities except for emergency situations including mitigation of imminent hazards, site investigations, enforcement actions, and overseeing responsible party cleanups. The Trust Fund may not be used for cleanup activities at Federal or State UST facilities. The Trust Fund may be used for cleanups at county facilities if the State determines that the county is incapable of carrying out corrective action.
           
 The following activities will generally be the responsibility of the State of Hawaii in its cost recovery procedure:
           
      ::	Determination of a release
      
      ::	Notification of responsibility to the owner or operator
      
                  ::	Negotiation for response action (in non-emergency situations) or issuance of an administrative order pursuant to the Department's enforcement policies and procedures
                  
                  ::	State lead cleanup (if the owner or operator is incapable or unwilling to clean up)
                  
                  ::	Demand for payment (through demand letter and billing or administrative order)
                  
            ::	Negotiation for a settlement of the recovery claim
            
                  ::	Litigation (when demand for payment and efforts to reach an administrative settlement fail)
                  
            ::	Collection and case closure
           
 Documentation pertaining to all activities as outlined above will be maintained in the Department's files. These files will be maintained and updated on a site-specific basis by the case assigned LUST Project Officer. Examples of required documentation would be letters authorizing LUST contractor work, authorization for equipment purchases, progress reports, investigative reports and other reports regarding site cleanup, and contractor timesheets.
           
 Even if no administrative or judicial settlement is reached, the Department will formally close out all cases and document the reasons for deciding not to proceed further. Factors justifying case closure include the situations where costs of pursuing a case further will approach or exceed the potential recovery, bankruptcy of the owner/operator, and other reasons. The Department will not allow the statute of limitation (SOL) to run out and justify closure on that basis.
 
 As the SOL approaches on a specific case, (per EPA guidance, the Department will assume a three-year statute of limitation) the Department may revise the priority of the case.
           
  6.2	Legal Authority
           
  The LUST Unit's cost recovery authority is derived from chapter 342L of the Hawaii Revised Statutes (HRS). Cost recovery authority is provided primarily at §342L-53, and secondarily at §342-7 (see Appendix 6-A for HRS and Certification Letter). HRS §342L-53 provides that whenever LUST Trust Fund monies have been used for undertaking corrective action or enforcement actions as the result of a release from a petroleum UST, the O/O is liable to the EPA or the State for such costs. Federal LUST Trust funds may be used to conduct state lead response actions. Under a Memorandum of Agreement between the EPA and the Department, the LUST Trust Fund may be used by the Department to identify contaminated sites qualifying for LUST Trust Fund monies and to oversee investigations and remedial actions or other appropriate activities occurring at such sites. Specific allocation and use of LUST Trust Fund monies by the Department and EPA are addressed via a cooperative agreement between the two agencies. As the implementing agency for Hawaii, the Department is responsible for recovering LUST Trust Fund expenditures from liable O/O's.
           
  6.3	Background
           
 The primary purpose of cost recovery under the LUST Trust Fund is to provide incentives for owners and operators to comply with technical and financial responsibility requirements, and most importantly, to clean up releases from their own tanks. The Department's cost recovery process involves the following three functional areas:
           
  6.3.1     Leaking Underground Storage Tank Unit (LUST Unit)
           
 The LUST Unit Project Officer (PO) determines that an O/O is recalcitrant in taking appropriate response action and that the site ranks high in priority. The PO initiates state lead response action. The PO contracts for response work; administers task assignments; reviews, approves, and processes site specific invoices; initiates cost documentation package preparation; and prepares and issues a demand letter. 
 
 The PO maintains copies of cost documentation in the LUST site file and reconciles cost documentation with accounting system cost summary reports provided by the Environmental Resources Office (ERO) and the Administrative Services Office (ASO). The PO participates in cost recovery decisions and coordinates cost recovery activities, including working with the Deputy Attorney General assigned to the case.
           
 6.3.2     The Department Environmental Resources Office (ERO) and Administrative Services Office (ASO) 
           
  Establishes and maintains a site-specific cost accounting file.  Pays contractors and other vendors. Enters costs into accounting system, requests drawdowns, files financial reports, develops cost summary, receives and accounts for recovered monies; and reports recovered LUST Trust Fund monies to EPA Regional Financial Management Office.
           
  6.3.3     State of Hawaii Office of Attorney General 
           
 The Assistant Attorney General assigned to the UST Section assists with reviewing cost documentation package for completeness and manages legal action and negotiation of settlements.

  6.4     Cost Recovery Priorities
           
 Priorities for recovering costs after an on-going State lead response are not necessarily the same as priorities for making the response in the first place. Generally, the priorities for undertaking a response action are based on protection of human health and the environment. Priorities for recovering costs are based on enforcement considerations such as the O/O willingness to cooperate and ability to pay, and the resources needed to recover the expended costs compared to the amount to be recovered.
           
 The Department has set the following priorities for cost recovery actions.
           
 High Priority:  Solvent responsible parties (RPs) who refuse to comply with corrective action orders or are otherwise recalcitrant, and solvent owners and operators who do not comply with financial responsibility requirements, will be
           pursued aggressively by the Department.
           
Low Priority:   The Department will commit fewer resources to insolvent or financially distressed RPs. Selective pursuit within this class will occur where the RP could afford lesser amounts, is hiding assets, fails to cooperate, or was negligent in allowing the release to occur. The Department will always, as a minimum, when performing corrective actions with LUST Trust fund money, send the RP a demand for payment letter. The Department may not pursue cost recovery where if it would force a cooperative owner or operator into bankruptcy.
           
Impracticable:     The Department will commit minimal resources for cost recovery efforts to sites where a liable O/O cannot be identified. Efforts to recover costs expended at these sites will rarely result in recovery of funds. The Department will make a diligent effort to locate a liable owner or operator before assigning a low priority to cost recovery in these cases.
           
Cost recovery actions include judicial cost recovery or settlement negotiation. The Department may choose to negotiate a settlement rather than proceed with litigation. A negotiated settlement is beneficial because the costs of litigation are saved if the negotiation is successful. The Department may choose to compromise a claim when the likelihood of success of litigating a claim is small, the cost of judicial collection is too high, or an O/O demonstrates the lack of financial resources to pay.
           
A potential cost recovery case which is closed due to reasons other than full or negotiated settlement may be reviewed to determine changes in O/O status or financial solvency. If the review indicates that cost recovery is viable, the Department will initiate appropriate action to recover expended LUST Trust Fund monies.
           
6.5	Recoverable Costs
           
O/O are liable for all direct costs of corrective action and enforcement, including interest, as well as indirect costs associated with these activities that are paid for by the LUST Trust Fund. The Department will seek to recover monies expended for direct and indirect costs as allowed under HRS §342L-53. Once the eligibility of the release has been documented, and the decision to perform a LUST Trust Fund response action has been made, all recoverable costs associated with the Department's response must be tracked and documented. These costs include:
           
6.5.1     Direct Costs
           
Direct costs include such things as payroll, travel, equipment and contractor costs which directly support and benefit the LUST program.
           
::	State Salary Costs
      Staff salary cost on LUST work on corrective action and enforcement activities is recoverable. All staff who charge time to LUST general support and management activities, or to sites at which no site-specific identifier has been established, must indicate the amount of time charged by activity code in the State's timekeeping and accounting systems. Once a site-specific identifier has been established, staff must reference both the site and activity code.
           
::	Contractor costs
      Any expenditures involving payment to contractors for actual cleanup activities are considered direct response action costs and are recoverable. The Department will always attempt to recover these costs.
           
::	Equipment and supply costs
      Costs incurred by the Department for the purchase and operation of equipment and supplies used for a response action at a LUST Trust Fund site are recoverable. If a piece of equipment is used at multiple LUST Trust Fund sites (e.g., portable analytical equipment, or a drill rig, or a portable remediation device), the cost may be prorated among the sites.
           
::	Oversight costs
      Costs for the Department staff time spent on oversight of LUST response actions are recoverable. However, the Department will typically attempt to recover oversight costs only when other LUST Trust Fund costs have also been incurred at a site, or when the number of staff oversight hours spent at a site becomes excessive.
           
Three activity codes for LUST direct costs will be used for each LUST site, and included in all cost reports submitted to EPA. The activity codes are listed below and described.
           
 "7" -   General Support and Management - includes all internal Departmental support and management direct costs which benefit the overall LUST Trust Fund program. Also included external, e.g., contractor costs associated with general management, administrative support, program guidance and implementation, training, general community relations support, report and proposal writing, contingency planning, and contractor support.
           
 "E" -   Site Cleanup Actions  - includes all costs associated  with site responses taken to prevent or mitigate threats to public health, welfare, or the environment posed by a release (or suspected release) of petroleum from an underground storage tank, including emergency responses, site investigations, exposure assessments, the planning and design of corrective actions, and the conduct, management and oversight of long-term remedial corrective actions.
           
 "4" -   Enforcement - includes all activities necessary to identify a potential owner/operator, such as owner/operator searches, title searches, and financial assessments. Also includes activities involved in issuance of letters, notices and orders to O/O's to provide information, test tanks, correct leaks and conduct cleanups associated with petroleum release from an underground storage tank. Includes oversight of O/O cleanups, whether taken in response to an enforcement action (e.g., letters, notices, orders, orders on consent decrees, judicial decrees, etc.) or not. Includes all activities associated with the development and support of cost recovery cases.
           
  6.5.2     Indirect Costs
           
 Indirect costs represent State overhead costs such as rent and utilities for staff office space and payroll and benefits for agency and division directors and administrative staff that support multiple programs. Unlike general support and management costs which are charged directly to the LUST appropriation, indirect costs are initially charged to a non-LUST cost pool. Refer to the Cost Recovery Policy For Leaking Underground Storage Tank Trust Fund Corrective Action Cooperative Agreements (2016) available at https://nepis.epa.gov, for guidance and suggested methodology for calculating indirect costs. Indirect costs are calculated for the project by ERO/ASO.
           
  6.5.3     Interest Charges
           
 Interest charges are recoverable costs.  Interest on the amount expended should be charged starting from the date of the potentially responsible party's (PRP's) receipt of the demand letter (this letter explains the Department's requirements concerning the debt and interest). The minimum rate of interest to be charged is based on the average investment rate of the U.S. Treasury Department's tax and loan accounts, and may be found in the Yearly Percentage Bulletin, which is published annually by the Treasury's Financial management Service. 
 
 Refer to the Cost Recovery Policy For Leaking Underground Storage Tank Trust Fund Corrective Action Cooperative Agreements (2016) available at https://nepis.epa.gov for details.  Interest will not be recovered if the amount due is paid within 30 days after the date that the demand letter was delivered to the responsible party.  The Department may not pursue the collection of interest if it puts the RP in financial distress, or the cost of collecting the interest will be more than the amount collected.
           
  6.5.4     Legal Costs
           
 Costs charged by the Attorney General's Office for legal actions against the O/O, such as the preparation and issuance of cleanup orders, cleanup negotiations, and cost recovery litigation, are recoverable. The Department will always attempt to recover these costs.
           
  6.6	Costs the Department Will Not Pursue Recovery For
           
  The Department will generally not pursue recovery of LUST Trust fund expenditures for program management costs incurred by the United States Environmental Protection Agency.
           
 The Department will generally not pursue cost recovery for Departmental oversight activities from cooperative owners and operators who voluntarily cleanup release from their tanks.
           
 In most cases, the Department will pursue cost recovery of the items listed in Section 6.5 "Recoverable Costs." However, in each individual case, the Department exercise's discretion to determine exactly which costs will be pursued.
           
  6.7	Documentation of Costs
           
 The Departmental LUST Unit will document all LUST Trust Fund expenditures for corrective action and enforcement costs on a site-specific basis at each site which has met one of the action thresholds and state lead action has begun. The state lead thresholds are:
           
                 ::	performed an emergency response;
               ::	no O/O can be located to undertake a response; or
              ::	determined that an O/O is or is likely to be recalcitrant.
           
 In contrast to sites that meet one of the three-action thresholds, most Hawaii leaking UST sites most likely will not meet any of the three thresholds and, thus, will not require site-specific documentation of costs. In particular, sites where a responsible party has the lead for site investigation and cleanup, which are overseen by Departmental staff paid for by the LUST Trust Fund, are not required to have site-specific documentation of costs and subsequent cost recovery efforts.
           
 Enforcement costs include all expenditures reasonably related to inducing a recalcitrant RP to comply and to recovering clean-up expenditures. These include the salaries and other expenses associated with case development, negotiations, and litigation.
           
 Site-specific accounting will begin as soon as costs are incurred by the LUST Unit or when it is determined by the UST Section Supervisor that a site is a candidate for state lead corrective action (see Appendix 6-B - Cost Recovery Activity Timeline). This determination may be made at any point in the process of case development or corrective action. Each state lead corrective action site will be assigned a project activity code that will be used to track all costs associated with that site. The project activity code will be assigned by the ERO/ASO.
           
 A site-specific project file will be created and maintained by the LUST PO. The site-specific file will be separated into investigation/remediation and cost documentation/cost recovery files. In the cost documentation/cost recovery file, the LUST PO will maintain copies of all cost documentation records forwarded to ERO/ASO (i.e., payroll, travel, contractor services, supplies and equipment). All "source documents" to substantiate costs (equipment, supplies and labor) will be maintained by the PO in their project file for retrieval in litigation or review by the Responsible Party to substantiate any cost recoverable costs. These records will help to ensure both accuracy (only costs attributable to a specific site are charged) and completeness (all costs incurred by the State are charged to a specific site).
 
 The cost documentation records in the LUST file can be compared against cost summary reports prepared by ASO for accuracy. The PO will need to coordinate with ERO to ensure labor costs are factual at the time of cost estimation as they may require after-the-fact adjustment to reflect true labor costs for a specific project. Correspondence to responsible parties for cost recovery along with documentation and records of recovered funds will also be maintained in the cost documentation/cost recovery file.
           
 Site-specific files will also be maintained by the LUST contractor and all contractor invoices shall be billed on a site-specific basis utilizing the State designated identification number and activity code.
           
 All site work performed under state lead will be clearly defined in a Task Assignment (TA). The TA will be the vehicle of contract with service providers who will perform corrective action at each site. Receipts, invoices and hourly time sheets will be required for all costs incurred by contractors and or others who incur costs under the Department's direction. Each invoice will be directly related to various tasks defined in the TA and have project and activity codes affixed.  The Department must show the following for all contract work and to support recovery of funds:
           
                 1)	Authorization for all work performed;
               2)	Documentation that all authorized work was    
                          accomplished;
                        3)	Originals of written invoices/bills submitted for all work accomplished; and
                 4)	Proof of payment of all submitted  
                            invoices/bills.
           
  6.8	Site-Specific Documentation Procedures
           
 The documentation of cost is critical to the Department's ability to recover costs. The site-specific cost accounting file will serve to:
           
                 1)	document expenditures;
               2)	support cost recovery actions with specific records;
                  3)	demonstrate that recovered monies are retained and used for additional eligible activities;
                  4)	conform to Cost Recovery Policy for Leaking Underground Storage Tank Trust Fund Corrective Action Cooperative Agreements; and
                  5)	Provide the basis for recovery of indirect costs from an O/O where LUST Trust funds are used by the LUST Unit.
           
 When the UST Section Supervisor determines that a site is a candidate for state lead corrective action, the Supervisor will request that ERO/ASO establish a cost accounting file and a Project Activity Code for the site.  The file will be identified by Facility ID, Release ID, and Project Activity Code and will serve as the central location for cost accounting documentation for that site.
           
 The site-specific cost accounting file will have nine major categories of cost documentation as follows (also see Table 6-1):
           
                  1.	Payroll: Copies of Time and Effort Reports will be required from all Department personnel who perform work on the specific LUST site. The Time and Effort Report must cite the appropriate task assignment and activity code.
           
            2.	Travel Expenses: Copies of all travel expense reports for transportation, meals, and lodging expenses for travel associated with state lead work for the site. These must be accompanied by a Time and Effort Report for the period of time during which the travel occurred.
           
                  3.	Service Provider (contractor/consultant) Costs: Invoices will be submitted on a site-specific basis and be noted with the appropriate project code. Invoices are to include a breakdown of expenses for labor, travel, equipment and supplies by activity code.
           
             4.	Supplies and Equipment Costs: It is the Department's policy to retain contractors/consultants to perform corrective actions utilizing their own equipment whenever possible. If the Department must acquire supplies and equipment, costs will be allocated on a site-specific basis, and appropriate identification codes affixed to the equipment purchase invoice. When charges cannot be assigned totally to a specific site, hourly equipment rates will be assigned to appropriate sites that are comparable to State contractor costs.
           
             5.	Enforcement Other Than Departmental Staff Time: Cost accounting time sheets will be provided by the Office of the Attorney General (AG) for site-specific cases. The ERO/ASO will translate the time sheets into the dollar amount that the Department will attempt to cost recover based on the hourly rate that is submitted by the AG.
             
             6.	Litigation Costs: Any court costs, service fees, and other associated litigation costs must be documented by invoices, and list the specific project and activity codes.
           
             7.	General Support and Management (GS&M): These costs include all internal Departmental support and management costs which benefit the overall LUST Trust Fund program.
           
            8.	Indirect Costs: If appropriate.
           
              9.	Other Costs: Costs such as owner/operator determinations, bilateral agreements, other settlements, etc.
           
  Contractor and equipment/supply invoices will be reviewed by the LUST Unit for accuracy and completeness prior to being forwarded to ASO/ERO. The LUST Unit will code each invoice with appropriate project and activity codes. The ERO will review the invoices and forward to ASO for payment. The expenditure will be documented in the site-specific cost accounting file. 

                             Table 6-1 Major Categories of Cost Documentation 
           
PROJECT COST
DOCUMENTS
Payroll 
Time and Effort Report 
Time and Effort Amendments 
Travel 
Authorizations for travel 
Travel claims 
Receipts (airline, hotel, etc.)
Proof of payment
Contractor 
Services
Task Assignments 
Contracts and amendments 
Progress reports on work performed
Contractor invoices
Approval of invoices 
Proof of payment 
Supplies 
and 
Equipment
Purchase Orders 
Invoices 
Receipts for money paid for goods and services 
Cancelled checks (if appropriate)
Hourly records of equipment use 
Proof of payment 
GS&M
Costs
Worksheets showing calculations if appropriate 
Indirect
Costs
Worksheets showing calculations for cost allocations 
Other 
Release Response Reports and any documents that substantiate that a release occurred; 
Records of all correspondence or other communications regarding actual costs;
Names address and telephone numbers of all persons maintaining the regular business records of contractors or other persons outside the Department; 
Copies of other documents such as audit reports, site visit reports, financial transactions;
Copies of any agreements with other State Agencies or local governments 
           
           
 The requirements for site-specific accounting for cost recovery purposes should not be confused with the need for the Department to continue to account for and drawdown all LUST Trust Fund expenditures under EPA's three major activity codes: "7" General Support and Management, "E" Site Cleanup Actions, "4" Enforcement. For further information on accounting and cost documentation, please refer to the Cost Recovery Policy For Leaking Underground Storage Tank Trust Fund Corrective Action Cooperative Agreements (2016) available at  https://nepis.epa.gov. 
           
  6.9	Procedures for Collecting and Handling Recoverable Costs 
           
  Notification of Debtor
           
 Once the recovery package is completed, the LUST unit will notify the 
  O/O through a demand letter of funds required for recovery. A sample 
 letter (Appendix 6-C) is attached. Typically, the Department will complete the corrective action (i.e., bring the site to a "no further action" status) 
 prior to requesting payment from the O/O. However, in some cases, it may be appropriate to request payment prior to completion of the corrective action. For example, once a significant milestone in the corrective action process has been reached (e.g., completion of emergency response, site characterization, or remedial equipment installation), the Department could present a demand letter for the costs of the work to date and offer the owner or operator an opportunity to assume responsibility for continuing response.
 
  The Hawaii Office of Attorney General will review demand letters prior to submittal to the appropriate O/O.
           
   Interest on Recovered Funds
           
 The Department will assess interest on recoverable funds in order to deter responsible parties from resisting payment in an effort to gain an interest-free loan on uncontrolled expenditures. Interest will begin to accrue from the day the notice of the amount of debt and interest requirements (Demand Letter) is mailed or hand-delivered to the responsible party. As the Department will retain recovered funds for additional cleanups and recoveries, the Department will also retain recovered interest for additional eligible activities. The Department may also elect not to pursue collection of all or part of the interest due. The Department may decide not to collect interest if the RP is in financial distress, or if the cost of collection of interest would be more than the amount collected.
           
  Settlement Negotiations and Judicial Actions
           
  Once the demand letter has been sent, the owner or operator may choose to request settlement for a lesser amount. If so, the procedures in Section 3 on negotiations and settlements should be followed. If litigation is necessary to recover costs, see section 3.1.5 on "Judicial Actions."
           
 In determining whether to settle or pursue judicial action, the Department should consider the solvency of the O/O, the costs of the corrective action, the likelihood of recovery, the case's deterrence value, and opportunity costs (comparing the resources that would be needed to pursue judicial action to recover the costs, to the resources needed in other parts of the LUST program).
           
   EPA Notification Requirements During Recovery
           
 If the cost recovery effort proceeds to judicial action, the Department will send a copy of the complaint within one week after the official filing to the EPA Region 9 Regional Counsel's Office. Once a settlement is reached, the Department will report to EPA Region 9 the agreed upon amount. When the Department receives payment from a liable owner/operator, the Department will report to EPA Region 9 the amount received.
           
  Disposition of Recovered Funds
           
 When the Department makes a successful cost recovery at a site where LUST Trust Fund money has been spent, it will retain the recovered monies
 as program income which will be used for additional Fund-eligible cleanups 
  and other activities as permitted under the Cooperative Agreement between EPA Region 9 and the Department. All recovered costs should be deposited through ASO to the Hawaii LUST Trust Fund account as soon as they are received.
           
  Financial Reporting to EPA
           
  The State will submit financial reports to support its use of LUST Trust Fund monies and to reconcile EPA and State records in accordance with 40 CFR 31.41 or 40 CFR 30.505 or as otherwise specified by EPA. These reports shall include annual Financial Status Reports (SF-269), Federal Cash Transaction Reports (SF-272) or Requests for Advance and Reimbursement (SF-270), and Exception Reports. The ASO shall be responsible for submitting all financial reports (with report information provided by the PO) except the Exception Site Reports which will be submitted quarterly by the UST Section Supervisor. The UST Section Supervisor will also report any amounts received by the O/O, or agreed or adjudges to be owed by the owner/operator as a settlement for site cleanup on a quarterly basis.
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
                                                          
                                          APPENDIX 6A
                            CERTIFICATION LETTER

The Honorable John C. Lewin, M.D. Director of Health
         State of Hawaii
         1250 Punchbowl Street
         Honolulu, Hawaii	96813
         Dear Dr. Lewin:
                      Re:	Certification That Hawaii Has Legal Authority to Carry Out Enforcement, Corrective, and Cost Recovery Activities Involving Leaking Petroleum Underground Storage Tanks in Hawaii ·

          This responds to your memorandum dated February 1, 1990, received in our office on February 12, 1990, requesting certification that the State of Hawaii has legal authority to carry out enforcement, corrective, and cost recovery activities relevant to petroleum tanks and the leaking underground storage tank (LUST) trust fund.

          We answer and certify that the State of Hawaii does have such legal authority.	Specifically:

 Enforcement.	Legal authority for the Department of Health to act appears at sections 342L-7, 342L-8, 342L-9, and 342L-12, Hawaii Revised Statutes, and at related enforcement statutes 342L-10, 342L-11,
                      342L-17, 342L-18, and 342L-21, Hawaii Revised Statutes.	Furthermore, the State of Hawaii, through the Attorney General has general law enforcement authority under sections 26-7, 28-1, 28-2, 28-2.5,
                      603-23, and 661-10, Hawaii Revised StatutesThe Honorable John C. Lewin, M.D. August 15, 1990
      Page 3

      In the course of doing research for this project, we were informed that the EPA requests that the state Attorney General certify that the State has legal authority to carry out the entire work plan, which includes much more than the work plan language quoted above.	Both the September 29, 1988 financial assistance agreement and the December 1989 work plan include several references to the Code of Federal Regulations, EPA guidance documents, EPA forms, and 0MB circulars.	
      Many of these references cover reporting, financial accounting and reporting, equal opportunity, and information gathering and keeping.	Some of the references are general to all EPA grants, and others are specific to underground storage tanks (UST) programs.		
      Your staff has been complying with the general EPA rules or grants for some time now.	We have reviewed those references which are specific to UST programs.

      We certify that the State does have the legal authority to carry out the Agreement as modified and the work plan as modified.	Section 342L-2, Hawaii Revised Statutes, gives the Director of Health broad administrative authority.

      We should point out a few minor items.	The work plan at page 20, section B.3, calls for, whenever possible, providing copies of documents of interest to the public free of charge. Section 92-21, Hawaii Revised Statutes, sets forth certain required charges for copies (not less than 25 cents per page) and may make free copies impossible.	The work plan also commits the Department of Health to forego an argument opposing citizen intervention in civil lawsuits.	The work plan on page 21, section D, states the following:

 The Department shall provide for public participation in the State enforcement process as per Rule 24(a)(2) of the Hawaii Rules of Civil Procedure, which allows for public intervention and assures that the Department will not oppose intervention under Rule 24(a)(2) on the grounds that the applicant's interest is adequately represented by the State.	
 [This satisfies the public participation requirements of 40 CFR 281.42{a).] [sic]

       The Department may agree not to oppose such intervention, but the Attorney General may take an independent stand.
           
           
           
           
           
                                         
                                         
                                         
                                         
                                         
                                         
                                         
                                         
                                         
                                         
                                         


                                         
                                         
                                         
                                         
                                         
                                                 APPENDIX 6B
                      COST RECOVERY ACTIVITY TIMELINE 
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           

           
           
           
           
           

           
                                                         STATE LEAD/COST RECOVERY INITIATION PHASE 
           
           
           
Functional Area
Activity 
Office of the 
Attorney General 

LUST Unit 
USS informs ERO/ASO of state lead site and ID and requests activity code
USS informs ERO/ASO of state lead site and ID and requests activity code
USS informs staff of site LUST ID and project activity code 
USS informs staff of site LUST ID and project activity code 
PO opens site specific technical and accounting/cost recovery files 
PO opens site specific technical and accounting/cost recovery files 
When state lead threshold is met, UST Section Supervisor  designates site specific LUST ID 
When state lead threshold is met, UST Section Supervisor  designates site specific LUST ID 
Accounting Operations (ERO & ASO)
Generates project activity code for site specific cost accounting informs USS 
Generates project activity code for site specific cost accounting informs USS 
Paying Agent 

           
           
           
           
           

           
			                                                            STATE LEAD ACTIVITY: ONGOING 


Functional Area
Activity 

Office of the 
Attorney General 

LUST Unit 
Reviews invoices; approves bills; provide tech info on work performed; retain copies of approved invoices in site file
Reviews invoices; approves bills; provide tech info on work performed; retain copies of approved invoices in site file
                            
                     Retains copies of payment records in site file 
                            
                     Retains copies of payment records in site file 
Program staff records time & travel by site and activity and retains copies in the site file 
Program staff records time & travel by site and activity and retains copies in the site file 
                          

Codes invoices with site specific ID and activity codes 
                          

Codes invoices with site specific ID and activity codes 
Accounting
Operations 
(ERO&ASO)
                       Loads time & travel charged to site and activity into accounting system 
                       Loads time & travel charged to site and activity into accounting system 

Loads contracting costs by site & activity into accounting system

Loads contracting costs by site & activity into accounting system

Paying Agent


Pays staff salaries & travel expenses 


Pays staff salaries & travel expenses 

Pays contractor; forwards proof of payment to PO 

Pays contractor; forwards proof of payment to PO 









					                             STATE LEAD ACTIVITY: ONGOING
		
Functional Area 
                                                                      Activity 
Office of the Attorney General 

LUST Unit 
Reconciles cost accounting summary with supporting documents in LUST file 
Reconciles cost accounting summary with supporting documents in LUST file 
Retains copies of reimbursement and accounting reports in site file 
Retains copies of reimbursement and accounting reports in site file 

Files Exception Site Report and quarterly reports 

Files Exception Site Report and quarterly reports 
Accounting Operations (ERO&ASO)
Retains copies of drawdown or advance requests in accounting files 
Retains copies of drawdown or advance requests in accounting files 
Requests drawdown, files SF269, SF272 and Expenditure Reports 
Requests drawdown, files SF269, SF272 and Expenditure Reports 
Produces accounting summary reports of all costs for site 
Produces accounting summary reports of all costs for site 
Paying Agent 

		* Exception Site Report is filed only once the Department plans to spend/has spent more than $100,000 at a particul




















                                              APPENDIX 6C

                                            HAWAII LEAKING UNDERGROUND STORAGE TANK TRUST FUND DEMAND LETTER

                     HAWAII LEAKING UNDERGROUND STORAGE TANK TRUST FUND DEMAND LETTER

            CERTIFIED MAIL No. [P 000 000 000] 
            RETURN RECEIPT REQUESTED

            [Mr. UST Owner]
            [Company name]  
            (1234 Gasoline Alley]
            [Honolulu, Hawaii 96813] 
            Dear [Mr. Owner]:
                  Subject:	[UST FACILITY NAME], [ADDRESS], [FACILITY ID], [RELEASE ID]

            The Hawaii Department of Health, Solid and  Hazardous  Waste  Branch,  Underground Storage Tank Section ("the Department", "we", "us") has  undertaken  release  response actions to address to the subject release. The following actions were taken: [DESCRIPTION  OF ACTIONS].

            The cost of this response has been $[cost]. An itemized breakdown of costs is attached. Pursuant to HRS §342L-53, as the [ owner or operator] of the UST, you are liable for all costs incurred by the Department in the undertaking of this corrective action.

            Please remit a check for the full amount, payable to the STATE OF HAWAII, to the following address within thirty (30) calendar days of receipt of this letter: Solid and Hazardous Waste Branch, Hawaii Department of Health, 2827 Waimano Home Road #100, Pearl City, Hawaii 96782. Your check and accompanying transmittal letter should clearly indicate the name, address, and UST Release ID number for the Site.

            If you fail to respond to this demand or fail to submit what we consider to be a good faith settlement offer within thirty (30) calendar days of receipt of this letter, we will conclude that you have declined to reimburse the State for these expenditures. Consequently, we may pursue civil litigation against you pursuant to HRS chapter 342L for these expenditures, plus legal costs and accrued interest.

            Any legal questions regarding this letter should be directed to [Attorney's Name], Deputy Attorney General, Office of the Attorney General, 465 South King Street, Second Floor, Honolulu, Hawaii 96813, telephone (808) 587-3050. Should you have any questions regarding this letter, please contact [UST SECTION PROJECT OFFICER], of our Underground Storage Tank Section, at (808) 586-4226.

                                           Sincerely,

                                                [   ] P.E., BRANCH CHIEF
                                                Solid and Hazardous Waste Branch

                                           SECTION 7

                                   RECORDS AND DATA MANAGEMENT

            7. 1. Records Management

            Proper management of the records of the enforcement actions taken is an important part of the enforcement strategy. To successfully apply legal remedies for cases of continued non-compliance, adequate records of all enforcement steps taken to date are needed. In addition, the rationale behind the selection of a particular enforcement action must be documented and be able to withstand scrutiny in court.

 Contents of the Administrative File

            The following documents must be included in the administrative file for a non-compliant site, and filed according to the filing system presented in section 7.1.2:

 For violations discovered through an inspection, copy of all other supporting evidence including but not limited to:

                            NOI
                            Inspection report;
                            Inspection checklist;
                            Drawings, sketches, maps, diagrams, and photographs; and
                                 Sampling and analysis plan, field lab data sheet, chain of custody documentation, analysis request, lab sample traffic report, and data results.

 For violations discovered through a review of records or other documents, copies of the documents and of the determination of the violation.

 For violations discovered through a complaint, a copy of the complaint.

 For violations discovered through an O/O's release reporting, copies of the public Standard Interview Form and the Confirmed Release Notification Letter.

 The site priority ranking worksheet and related documentation used to establish site priority.

 Documentation of the initial enforcement action taken (e.g., field citation, acknowledgment letter, request for information letter, review letter, warning letter, and corrective action letter), including copies of all documents issued to the O/O, date the action was taken, and the O/O's response. Include the signed returned receipts.

                         Documentation of escalated enforcement action taken (e.g., notice of violation and order or judicial action), including copies of all documents issued to the O/O, date the action was taken, and the O/O's response. Include copies of the signed certificate of service.

                         The penalty calculation and associated information including the worksheet, narrative, and justification of any adjustments to the penalty based on mitigating circumstances.

                         Information obtained from the DCCA.

                         Documentation of any actions performed by the O/O, whether the O/O achieved compliance within the timeframe specified, including reports of any site visits by Department staff, any information or reports submitted by the O/O, and any phone calls or letters received from the O/O. Typical submissions include:

                                Corrective action plan,
                                 First quarter report,
                                 Quarterly progress reports, and
                                Final quarterly report.

   Documentation of any public participation activities conducted including

 Letter with factsheet sent to members of the public directly affected by a release and a list of those members;
 Letter and public notice soliciting public comment on a proposed corrective action plan and copies of public comments received by the Department; and
 Letter to the public and response to comments on the Department's final decision on a corrective action plan.

 Copies of any subsequent enforcement actions taken and responses by the O/O.

 Cost recovery documentation as outlined in the Environmental Protection Agency's (EPA's) Cost Recovery Policy for Leaking Underground Storage Tank Trust Fund Corrective Action Cooperative Agreements, 2016, available at https://nepis.epa.gov. 

   PRP search documents.

 Minutes from negotiations with responsible parties and copies of   
                                  agreement reached.

 Copies of consent orders.

 Copies of no further action letters.

 Copies of documentation submitted to the Attorney General's (AG's) Office for referrals and for approval of enforcement actions to be taken.

 Staff person's notes on any inspection or case related activities.

 All other documentation, as appropriate.
          
          Written records of all correspondence with responsible parties, by United States mail, e­ mail, faxes, over the phone, or in person, should be maintained in the administrative file for the site. All enforcement actions should be documented in the file along with any information used in making enforcement decisions to ensure that sufficient documentation of the procedure is available, if needed, to justify the actions in court.

 Filing System

          Enforcement files are divided into three categories:

 Public files--available to the public;
                  Confidential files--not available to the public; and
 Confidential pending files--not available to the public until the requested information has been received and determined by the AG attorney to be public information.

           Documents in the various files are as follows:

 Public files
 The documents listed in section 7.1.1 except as noted below

                  Confidential files
                         All documents reflecting advice from the AG's Office, e.g., strategies, analyses, etc.
                        Notes of meetings and telephone conversations with the AG attorney
                        Staff person's notes
                        Notes of meetings with peers or managers
                        Penalty calculation narrative (the worksheet is part of the public file)

                  Confidential pending files
                        Drafts of NOVOs and other documents
                        The Department request for information letter
                        Facility response to a Department request for information letter
                        Other correspondence from the facility to the AG's Office or the Department.

           7.2.  Data Management

           The Department uses EPA's computerized USTRAC data management system to track UST data. The following is a partial list of the types of data tracked in USTRAC:


           Owners: Facilities: :::

           Tanks:
    Owner name and address; owner type; list of facilities owned by that owner.

    Facility ID, name, and address; owner name and address; operator name; facility type; compliance with financial responsibility requirements. 

    Tank ID; tank status (in use, temporarily closed, permanently closed);

                        substance stored; material of construction; tank capacity; regulatory status; compliance with design requirements; compliance with release detection requirements; compliance with spill and overfill requirements; compliance with site assessment requirements.

            Inspections/
                        Enforcement: Date of inspection; name of inspector; facility ID, name, and address; number, types, and dates of violations found; type of enforcement action; date enforcement action issued; date response due; date response received; date enforcement action satisfactorily closed; proposed penalty; final penalty; supplemental environmental projects.


            Releases:


            Permits:


            Variance:



            Fees:
    Release ID, name, and address; name of LUST project officer; cleanup status; regulatory status.

    Type of application; date received; date permit issued; amount of fee due; date fee collected; name of staff person.

    Type of application; date received; date of public notice; date of public hearing; date variance issued; amount of fee due; date fee collected; name of staff person.

    Fees owed; fees collected; outstanding balances; receipt dates; invoicing records.


            USTRAC is used to monitor the compliance status of UST facilities by tracking and analyzing: tank installation, operation, and closure activities; inspection results and follow-ups; release notices and subsequent cleanup actions; and fee collections and follow-ups. The Department uses this system to determine both individual and collective measurements of regulatory compliance, and also to design, target, and implement enforcement activities to ensure compliance.
           
