(a) Liability to the State for any costs or expenditures under this chapter shall be joint and several. Wholly apart from such liability to the State, as between parties who are liable under this chapter, there shall be the rights of apportionment and contribution as provided in this section.

Terms Used In Hawaii Revised Statutes 128D-18

  • Damages: Money paid by defendants to successful plaintiffs in civil cases to compensate the plaintiffs for their injuries.
  • Defendant: In a civil suit, the person complained against; in a criminal case, the person accused of the crime.
  • Equitable: Pertaining to civil suits in "equity" rather than in "law." In English legal history, the courts of "law" could order the payment of damages and could afford no other remedy. See damages. A separate court of "equity" could order someone to do something or to cease to do something. See, e.g., injunction. In American jurisprudence, the federal courts have both legal and equitable power, but the distinction is still an important one. For example, a trial by jury is normally available in "law" cases but not in "equity" cases. Source: U.S. Courts
  • Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
  • Hazardous substance: includes any substance designated pursuant to section 311(b)(2)(A) of the Clean Water Act; any element, compound, mixture, solution, or substance designated pursuant to section 102 of CERCLA; any hazardous waste having the characteristics identified under or listed pursuant to section 3001 of the Solid Waste Disposal Act; any toxic pollutant listed under section 307(a) of the Clean Water Act; any hazardous air pollutant listed under section 112 of the Clean Air Act, as amended (42 U. See Hawaii Revised Statutes 128D-1
  • operator: means :

    (1) In the case of a vessel, any person owning, operating, or chartering by demise the vessel;

    (2) In the case of an onshore facility or an offshore facility, any person owning or operating the facility; and

    (3) In the case of any facility, title or control of which was conveyed due to bankruptcy, foreclosure, tax delinquency, abandonment, or similar means to a unit of a state or local government, any person who owned, operated, or otherwise controlled activities at the facility immediately beforehand. See Hawaii Revised Statutes 128D-1

  • Person: means any individual, firm, corporation, association, partnership, consortium, joint venture, commercial entity, state, county, commission, political subdivision of the State, or, to the extent they are subject to this chapter, the United States or any interstate body. See Hawaii Revised Statutes 128D-1
  • Release: means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing of any hazardous substance or pollutant or contaminant into the environment, (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant); but excludes:

    (1) Any release which results in exposure of persons solely within a workplace, with respect to a claim which such exposed persons may assert against their employer;

    (2) Emissions from the engine exhaust of a motor vehicle, rolling stock, aircraft, vessel, or pipeline pumping station engine;

    (3) Release of source, byproduct, or special nuclear material from a nuclear incident, as those terms are defined in the Atomic Energy Act of 1954 (42 U. See Hawaii Revised Statutes 128D-1

  • remedial action: means those actions consistent with permanent correction taken instead of or in addition to removal actions in the event of a release or threatened release of a hazardous substance or pollutant or contaminant into the environment, to prevent or minimize the release of hazardous substances so that they do not migrate to cause substantial danger to present or future public health or welfare or the environment. See Hawaii Revised Statutes 128D-1
  • response: means remove, removal, remedy, or remedial action; and all such terms include government enforcement activities related thereto. See Hawaii Revised Statutes 128D-1
(b) Any party found liable for any costs or expenditures may institute an action for apportionment under this section at any time after receiving an order or after costs or expenditures are incurred by the liable party. Any party found liable for any costs or expenditures may join any other parties that may be liable under § 128D-6 in an action for apportionment.
(c) Any action for apportionment under this section shall be without prejudice to any other action that may be brought by an objecting party under this chapter.
(d) Any party who has incurred removal or remedial action costs in accordance with this chapter may seek contribution or indemnity from any person who is liable pursuant to this chapter. An action to enforce a claim for indemnity or contribution may be brought by any defendant in an action brought pursuant to this chapter or in a separate action after the party seeking contribution or indemnity has paid removal or remedial action costs in accordance with this chapter. In resolving claims for indemnity or contribution, the environmental court may allocate costs among liable parties using those equitable principles which are appropriate.
(e) Any party who receives compensation for response costs or damages or claims pursuant to this chapter shall be precluded from recovering compensation for the same response costs or damages or claims pursuant to any other state or federal law. Any party who receives compensation for response costs or damages or claims pursuant to any other state or federal law shall be precluded from receiving compensation for the same response costs of damages or claims as provided in this chapter.
(f) Any party found liable for any costs or expenditures under this chapter except under § 128D-5, who establishes by a preponderance of the evidence that only a portion of those costs or expenditures are attributable to that party’s actions, shall be required to pay only for that portion. All recoverable costs or expenditures shall be allocated by the environmental court. If any share of the response costs is not paid by a liable party because of insolvency or otherwise, that share shall be assigned to an orphan share. If there is an orphan share, the environmental court shall adjust the allocations of the remaining liable parties so that in addition to paying their allocated shares, they proportionately pay the entire orphan share.
(g) In the process of apportionment of costs among the parties found liable and the establishment of the orphan share, the environmental court shall consider the following criteria:

(1) The volume of hazardous substances transported to the site by each party. For purposes of determining volume, the volume of each transport of a hazardous substance shall be allocated between the arranger for the transport and the transporter of a hazardous substance in apportioning a percentage share of response costs;
(2) The anticipated impact of the hazardous substance and control of the hazardous substance on the cost of response activity at the site;
(3) The degree of care exercised in the disposal or treatment, or both of the hazardous substance by each party that may be liable under § 128D-6;
(4) The manner in which the site was operated and the degree of care exercised by the owner or operator;
(5) The degree of a party’s involvement in site operations;
(6) Whether all applicable permits and licenses required by law were obtained and complied with;
(7) The degree to which the party cooperated with federal, state, or local officials to prevent, minimize, respond to, or remedy the release or threat of release; and
(8) Any other aggravating or mitigating factor that the environmental court determines to be relevant.
(h) If the environmental court finds the evidence insufficient to establish each party’s portion of the costs or expenditures under subsection (f), the environmental court shall apportion those costs or expenditures, to the extent practicable, according to equitable principles, among the parties.
(i) Any costs or expenditures required by this chapter made by a liable party shall be credited toward the party’s apportioned share. Costs shall include reasonable attorney’s fees.

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