Hawaii Administrative Rules
Title 11 - DEPARTMENT OF HEALTH
Subtitle 1 - GENERAL DEPARTMENTAL PROVISIONS
Chapter 46 - COMMUNITY NOISE CONTROL
Section 11-46-8 - Variances
Universal Citation: HI Admin Rules 11-46-8
Current through February, 2024
(a) Applicability. In accordance with section 342F-5, HRS, the director may grant, renew, modify, suspend, revoke, or deny variances to operate any excessive noise source which emits or may emit noise levels in excess of the maximum permissible sound levels specified in Table l, Maximum permissible sound levels in dBA, of section 11-46-4(a), and which use or operation does not conform to the requirements of section 11-46-7, or other applicable provisions of this chapter.
(b) No variance, modification, or renewal shall be granted by the director unless the application and the supporting information clearly show that:
(1) The
continuation of the function or operation involved in the emission occurring or
proposed to occur by the granting of the variance is in the public interest, as
defined in section 11-46-7(c);
(2)
The emission occurring or proposed to occur does not substantially endanger
human health or safety; and
(3)
Compliance with the provisions of this chapter from which the variance is
sought would produce serious hardship without equal or greater benefits to the
public.
(c) Application for variance, modification, or renewal.
(1)
Every application shall be submitted on forms furnished by the
director.
(2) Every application
shall be accompanied by a complete and detailed description of present
conditions, how present conditions do not conform to standards, and such other
information as the director may by rule prescribe.
(3) Every application shall be reviewed' in
light of the descriptions, statements, plans, histories, and other supporting
information submitted with the application; any additional information as may
be submitted upon the request of the director; and the effect or probable
effect upon the maximum permissible sound levels established pursuant to this
chapter.
(4) The applicant shall
submit sufficient information to enable the director to make a decision on the
application. Subject to the request of the director, every application for
variance may include the following information;
(A) Applicant identification;
(B) Type and purpose of activity, including a
brief description of the applicant's activity which results in the proposed
emission;
(C) Location and time of
activity;
(D) A list of vehicles,
construction or agricultural equipment, tools, and any devices;
(E) Estimated duration and schedule of
activity;
(F) Plans and procedures
for the attenuation of noise emission from noise sources to minimize excessive
noise levels;
(G) Description of
the immediate impact area;
(H) Any
adverse environmental effects which cannot be avoided;
(I) Description of alternatives to the
proposed activity;
(J) Discussion
of the relationship between short-term use of the environment and the
maintenance and enhancement of long-term productivity;
(K) Discussion of any irreversible and
irretrievable commitments of resources which would be involved in the proposed
activity;
(L) Disclosure of any
possible impact from noise created by any proposed nighttime activity which may
affect the immediate surrounding;
(M) Plans for notification of the people in
the surrounding area of planned nighttime activities; and
(N) Such other information as the director
may request.
(5) The
director shall not act upon or consider any incomplete application for
variance, modification or renewal. An application shall be deemed complete only
when all required and requested information, including the application form,
plans, schedules, specifications, and other information have been timely
submitted.
(6) Every application
shall be signed by the applicant and shall constitute an acknowledgment and
agreement that the applicant will comply with all of the terms and conditions
of the variance, this chapter, and chapter
342F, HRS.
(7) The director may require the submission
of additional information after the application has been submitted, and may
ensure that, if an application is incomplete or otherwise deficient, processing
of the application shall not be completed until such time as the applicant has
supplied all required information or otherwise corrected the
deficiency.
(8) Every application,
for renewal shall be made at least one hundred eighty days prior to the
expiration of the variance. The director shall act on a completed application
for renewal within one hundred eighty days of the receipt of such
application.
(9) Every application
for renewal shall meet all conditions specified in the immediately preceding
variance; and shall provide for emission not greater than that attained
pursuant to the terms of the immediately preceding variance at its
expiration.
(d) Public participation requirements.
(1) Any
application for a variance, submitted pursuant to this chapter, shall be
subject to the public participation requirements.
(2) Public notices of every completed
application for a variance, except an application for off-hour road work, shall
be circulated in a manner designed to inform interested and potentially
interested persons of the proposed emission.
(3) Procedures for the circulation of public
notices shall include at least the following:
(A) Notices shall be circulated within the
geographical areas of the proposed emission; such circulation shall include
publishing in local newspapers and periodicals, or, if appropriate, in a daily
newspaper of general circulation;
(B) Notice shall be mailed to any person upon
request; and
(C) The director shall
add the name of any person, upon request, to a mailing list to receive copies
of notices for all variance applications within the State or within a certain
geographical area.
(4)
The director shall provide a period of not less than thirty days following the
date of the public notice during which time interested persons may submit their
written review with respect to the variance application and the tentative
determinations of the department, if any. The period for comment may be
extended at the discretion of the director.
(5) The contents of the public notice of
applications for variances shall include at least the following:
(A) Name, address, and phone number of agency
issuing the public notice;
(B) Name
and address of each applicant;
(C)
Brief description of each applicant's activities or operations which result in
the emission described in the variance application;
(D) A short description of the location of
each emission indicating whether such emission is new or existing;
(E) A brief description of the procedures for
the formulation of final determinations, including the thirty-day comment
period required by paragraph (4), and any other means by which interested
persons may influence or comment upon those determinations; and
(F) Address and phone number of state agency
premises at which interested persons may obtain further information and inspect
a copy of the variance applications and supporting and related
documents.
(6) The
director may hold a public hearing, if, after reviewing the comments submitted
under paragraph (4), the director determines that a public hearing is
warranted. Any hearing brought pursuant to this subsection shall be held in the
geographical area of the proposed emission or other appropriate area, at the
discretion of the director.
(e) Fees.
(1) The director may establish reasonable
fees for the issuance of variance and renewals to cover the cost of issuance
thereof and for the implementation and enforcement of the terms and conditions
of variances.
(2) Every applicant
for variance or renewal shall pay the applicable fee as set forth in subsection
(f);
(3) Fees shall not be refunded
nor applied to any subsequent application; and
(4) Fees shall be made payable to the State
of Hawaii.
(f) Fee schedule. The fee for a variance or renewal of a variance shall be $100 per year and all costs associated with the public participation requirements as provided in subsection (d), including but not limited to costs for publication of public notices, circulation of public notices, and public hearing. Public notices shall be prepared by the department.
(g) Granting of variances, modifications, or renewals.
(1) If a variance, modification, or
renewal is granted on the grounds that there is no practicable means known or
available for the adequate prevention, control, or abatement of the excessive
noise involved, it shall be only until the necessary means for prevention,
control, or abatement become practicable, and subject to the taking of any
substitute or alternate measures that the director may prescribe.
(2) Every variance, modification, or renewal
granted under this section shall include conditions requiring the grantee to
perform noise sampling and report the results of such sampling to the
director.
(h) Period of variance, modification, or renewal.
(1) The
director may issue a variance or renewal for a period not exceeding five
years.
(2) The period of
modification shall be the period of the variance originally issued, for the
term not exceeding five years.
(3)
On written request, the director may extend the period of the variance upon
showing that an extension is justified; provided in no case shall an extension
be granted if the combined term of the originally issued variance and any
extension or extensions exceeds five years. Any extension or extensions shall
be subject to annual fees as provided in subsection (f).
(i) Variance conditions. Each variance may be subject to such reasonable conditions as the director may prescribe.
(j) Suspension, revocation, or denial. The director may suspend, revoke, or deny any variance if, after affording an opportunity for a hearing in accordance with chapter 91, HRS, it is determined that:
(1) There is a violation of any
condition of the variance;
(2)
There are deviations from, or failure to comply with, all information or facts
contained within the variance;
(3)
The variance was obtained by misrepresentation or failure to disclose fully all
relevant facts;
(4) There is a
change in any condition that requires either a temporary or permanent reduction
or elimination of the excessive noise emission; or
(5) Such action is in the public
interest.
(k) Termination of variances. The director shall be notified, in writing, of the permanent termination of the activity for which the variance has been granted. If such notice is not received by the expiration date specified in the variance, the variance shall automatically terminate and the applicant shall be divested of all rights therein.
(l) Records. The director shall keep records of all requests for variance and their disposition.
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