Hawaii Administrative Rules
Title 12 - DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS
Subtitle 8 - HAWAII OCCUPATIONAL SAFETY AND HEALTH DIVISION
Part 1 - GENERAL, LEGAL AND ADMINISTRATIVE PROVISIONS
Chapter 53 - RULES OF PRACTICE FOR VARIANCE
Subchapter 2 - APPLICATION FOR VARIANCES AND OTHER RELIEF
Section 12-53-6 - Variance and other relief for inability to comply

Universal Citation: HI Admin Rules 12-53-6

Current through August, 2024

(a) Any employer, or class of employers, desiring a variance from a standard, or portion of it, for inability to comply with any rule shall file a written application with the director.

(b) All applications filed pursuant to subsection (a) above shall be in writing and shall include:

(1) The name and address of the applicant;

(2) The address of the place or places of employment involved;

(3) A specification of the rule or portion from which the applicant seeks a variance;

(4) A representation by the applicant, supported by representations from qualified persons having first-hand knowledge of the facts represented, that the applicant is unable to comply with the rule or portion of it by its effective date and a detailed statement of the reasons;

(5) A statement of the steps the applicant has taken and will take, with specific dates where appropriate, to protect employees against the hazards for which the standards provide protection;

(6) A statement of when the applicant expects to be able to comply with the standard and what steps has been taken and will be taken, with specific dates where appropriate, to achieve compliance with the rule;

(7) A statement of the facts the applicant would present to establish that:

(A) The applicant is unable to comply with a standard by its effective date because of unavailability of professional or technical personnel or of materials and equipment needed to achieve compliance with the standard or because necessary construction or alteration of facilities cannot be completed by the effective date;

(B) All available steps to safeguard employees against the hazards for which the standard provides protection are being taken; and

(8) A certification that the applicant has informed employees of the application by:

(A) Giving a copy to their designated representatives;

(B) Posting a statement giving a summary of the application and specifying where a copy may be examined, at the place or places where notices to employees are normally posted (or in lieu of the summary, the posting of the application itself); and

(9) A description of how affected employees have been informed of the application and of their right to petition the director for a hearing; and

(10) When the requested variance would be applicable to employment or places of employment in more than one state and concerns a Hawaii OSH standard or portion thereof, identical in requirements and substance to a federal standard, the applicant shall:

(A) Identify the identical Federal standard;

(B) Certify whether or not the applicant has filed for such a variance, on the same facts, with the Assistant Secretary for Occupational Safety and Health, U.S. Department of Labor; and

(C) Certify whether or not any citations for violations of the identical federal standard, or portion thereof, have been issued to the applicant by the federal government, and, if citations have been issued, copies of the citations shall be included.

(1) A written application may also be made for an interim order to be effective until a decision is rendered for the variance filed previously or concurrently. An application for an interim order shall include statements of fact and arguments as to why the order should be granted. The director or the administrator may rule ex parte upon the application for an interim order.

(2) If an application for an interim order is denied, the applicant shall be given notice of the denial within forty-five days of the filing of the complete application for the interim order which shall include a brief statement of the grounds for denial.

(3) If an interim order is granted, a copy of the order shall be served upon the applicant.

(4) The employer shall give notice to affected employees, by the same means used to inform them of an application for a variance, that an interim order has been granted.

(d) A variance and other relief for inability to comply may be granted for up to six months and can be renewed once for an additional six months. A written request for an extension shall be filed not less than thirty days prior to the expiration date of the original variance and shall include the reason(s) for the extension request with supporting documentation if any. If an interim order is granted, the duration of the interim order is not included in the six-month period for the variance.

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