Haw. Code R. § 12-220-33.1 - Variances

(a) In cases of practical difficulties, undue hardships, or new developments, an owner, user, contractor, or vendor may apply for a variance from any safety standard under this part. The application must be in writing and may be hand delivered or mailed to the director, or sent by electronic mail to dlir.hiosh.boiler@hawaii.gov, clearly stating the standard from which a variance is sought, the conditions, means, practices, methods, operations, or processes proposed together with drawings, specifications, and other supporting data. The director may issue an order for variance if what is proposed will provide a substantially equivalent level of safety to that provided by the standard.

(b) All variances granted pursuant to this chapter shall have only a future effect. The director may decline to consider an application for variance on a subject or issue for which a citation has been issued to the owner or user and a proceeding on the proposed citation, or period of abatement, is pending.

(c) Before granting the variance, the director shall post a notice on the division's homepage notifying all potentially affected parties of the director's intent to grant the variance. The notice shall provide a period of thirty (30) calendar days to object to the granting of the variance, after which time the variance shall become final if no objections are filed and no hearing is requested.

(d) Any party objecting to the granting of the variance must notify the director in writing within thirty (30) days of the online posting, stating the reasons why the variance should not be granted and the resultant specific impact on safety. The objecting party's reasons for objection may also be based on grounds other than impact on public safety, including the feasibility of compliance or lack of undue hardship to the petitioner.

(e) The hearing requested by the objecting party shall be held before the director or the director's authorized agent no later than forty-five (45) days after the thirty-day (30) period online posting of the public notice. It shall be held as follows:

(1) The objecting party or parties and the variance applicant shall be provided notice of the date, time, and place of the hearing at least fourteen (14) calendar days before the scheduled hearing;

(2) Each party shall be prepared to provide evidence supporting the party's case, including a brief oral statement summarizing the party's evidence;

(3) The director shall provide a written order to all parties;

(4) If the director determines that the evidence does not support denial of the variance request, no further notice is required; and

(5) If the director determines that the evidence supports a denial of the variance request, the director shall post notice on the division's homepage notifying all potentially affected parties of the director's determination.

(f) Every final action granting a variance shall be published by online posting on the division's webpage. The online notice shall specify the alternative to the standard involved in the variance granted by the director.

(g) If a variance application filed pursuant to subsection (a) does not include all the relevant information required, the director may deny the application. The director's order of the denial of an application for nonconformity shall be given to the applicant within thirty (30) calendar days. A notice of denial shall include a brief statement of the grounds for the denial. A denial of an application shall be without prejudice to the filing of another application. If a variance is not acted upon within ninety (90) calendar days, it shall be deemed granted.

(h) Notice of hearing.

(1) Upon request for a hearing pursuant to this chapter, the director shall serve notice of hearing within thirty (30) days and not more than sixty (60) days after the request for hearing;

(2) A notice of hearing shall include:

(A) The time, place and nature of the hearing;

(B) The legal authority for the hearing;

(C) A specification of the issues of fact and law; and

(D) A designation of a hearing officer appointed by the director; and

(3) A copy of the notice of hearing shall be transmitted to the hearing officer together with the original application and any request for a hearing.

(i) The director shall issue a determination to all affected parties within thirty (30) calendar days after the conclusion of the hearing.

Notes

Haw. Code R. § 12-220-33.1

Eff 12/6/82; am 12/8/86; am, ren 12-220-11, and comp 12/6/90; am 7/6/98; am 6/19/00; § 12-220-34; am, ren 12-220-33.1, and Comp 12/21/2019 Comp 9/8/2024