(a) The director may deny an application submitted under § 128D-34. In denying an application, the director may consider the following:

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Terms Used In Hawaii Revised Statutes 128D-35

  • Department: means the department of health. See Hawaii Revised Statutes 128D-1
  • Director: means the director of health. See Hawaii Revised Statutes 128D-1
  • Litigation: A case, controversy, or lawsuit. Participants (plaintiffs and defendants) in lawsuits are called litigants.
  • Prospective purchaser: means a prospective owner, operator, tenant, developer, lender, or any other party who would not otherwise be liable under § 128D-6, prior to a voluntary response action being conducted. See Hawaii Revised Statutes 128D-32
  • Requesting party: means the person or persons submitting an application to conduct a voluntary response action. See Hawaii Revised Statutes 128D-32
  • response: means remove, removal, remedy, or remedial action; and all such terms include government enforcement activities related thereto. See Hawaii Revised Statutes 128D-1
(1) The nature and extent of any past, current, or future actions by the department regarding the proposed site and the impact the voluntary response action might have on these past, current, or future actions;
(2) Site eligibility based on the criteria in § 128D-33;
(3) Completeness and accurateness of the application:

(A) If an application is denied because it is incomplete or inaccurate, the director, not later than forty-five days after receipt of the application, shall identify the omission or inaccuracy for the requesting party. A requesting party whose application has been denied because it is incomplete or inaccurate, may resubmit an application for the same response action without submitting an additional application fee; and
(B) If a requesting party’s application is denied a second time, the director may require an additional $1,000 processing fee for any subsequent submittal;
(4) Inappropriate or inadequate scope of work;
(5) Pending litigation;
(6) The capacity of the requesting party or the requesting party’s agent to carry out the response action properly;
(7) Whether the public will receive substantial benefit from the cleanup, including but not limited to environmental improvement and economic development;
(8) Whether the continued operation of the site or new site development, with the exercise of due care, will aggravate or contribute to the existing contamination or interfere with the department’s response action;
(9) Whether the continued operation or new development of the property will pose health risks to the community and those persons likely to be present at the site; or
(10) The financial viability of the prospective purchaser.
(b) If the director finally denies the application, the director shall:

(1) Notify the requesting party that the application has been denied; and
(2) Explain the reasons for denial of the application.
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