§396-4 - Powers and duties of department.

§396-4 Powers and duties of department.
(a) Administration. The department shall be responsible for administering
occupational safety and health standards throughout the State.

(1) The department shall prescribe and enforce rules
under chapter 91 as may be necessary for carrying out the purposes and
provisions of this chapter. The department shall make reports to the Secretary
of Labor in the form and containing the information that the Secretary from
time to time shall require pursuant to federal law;

(2) The department shall adopt, amend, or repeal
occupational safety and health standards in the manner prescribed by rules
adopted hereunder. Emergency temporary standards may be adopted without
conforming to chapter 91 and without hearings to take immediate effect upon
giving a statewide public notice of the emergency temporary standard or upon
any other date that may be specified in the notice. An emergency temporary
standard may be adopted if the director determines:

(A) That employees are exposed to grave danger
from exposure to substances or agents determined to be toxic or physically
harmful or from new hazards; and

(B) That the emergency standard is necessary
to protect employees from danger.

The emergency temporary standard shall be effective
until superseded by a standard adopted in accordance with the procedures set
forth in chapter 91, but in any case shall be effective no longer than six
months;

(3) Variances from occupational safety and health
standards adopted under this chapter may be granted upon application of an
employer or employers. Application for variances must correspond to procedures
set forth in the rules of this chapter. The director may issue an order for
variance if the director determines that the proponent of the variance has
demonstrated that the conditions, practices, means, methods, operations, or
processes used or proposed to be used by the employer will provide employment
and places of employment to the employer's employees which are as safe and
healthful as those which would prevail if the employer complied with the
standard. The employer shall also notify the employer's employees upon each
application for variance and the employees shall be given an opportunity to
request and participate in hearings or other proceedings relating to
applications for variance. No inference of admission of violation of a
standard shall be made against the employer by reason of the employer's
application for variance; and

(4) The department, upon the application of any
employer or other person affected thereby, may grant any time that may
reasonably be necessary for compliance with any order. Any person affected by
an order may petition the department for an extension of time, which may be
granted if the department finds it necessary; and

(5) The department shall regulate hoisting machines
and shall certify their operators.

(b) Inspection and investigation.

(1) Authorized representatives of the director shall
have the right to enter without delay any place of employment during regular
working hours and at other reasonable times;

(2) The department shall inspect places of employment
and machines, devices, apparatus, and equipment for the purpose of insuring
adequate protection to the life, safety and health of workers;

(3) The department shall inspect construction
activities for the purpose of protecting the health and safety of employees and
the general public. A construction activity includes any activity related to
the erection, construction, alteration, demolition or maintenance of buildings,
structures, bridges, highways, roadways, dams, tunnels, sewers, underground
buildings or structures, underground pipelines or ducts, and any other
construction project or facility;

(4) The department may investigate the cause of all
industrial injuries resulting in disability or death which occur in any
employment, or place of employment, and may make reasonable orders and
recommendations with respect to the cause of the injuries;

(5) The department shall have the right to question
privately any employer, owner, operator, agent or employee in investigation,
enforcement and inspection activities;

(6) There shall be a prohibition against advance
notice of inspection except that written exception may be expressly authorized
by the director in the director's discretion and pursuant to the rules and
regulations promulgated under this chapter. Those inspections requiring
advance notice for preparation or for other purposes of inspection as further
defined in the rules and regulations promulgated under this chapter shall not
be included in the prohibition against advance notice;

(7) An employee of the State acting within the scope
of the employee's office, employment, or authority under this chapter shall not
be liable in or made a party to any civil action growing out of the
administration or enforcement of this chapter.

(1) The department may disseminate through
exhibitions, moving pictures, lectures, pamphlets, and any other method of
publicity, information to employers, employees and the general public regarding
the causes and prevention of industrial accidents and injuries.

(2) Where appropriate, the department shall undertake
programs in training and consultation with employers and employees as a means of
encouraging voluntary compliance.

(d) Enforcement.

(1) Whenever right of entry or inspection is refused
to an authorized representative of the director, the department may apply to
the circuit court of the circuit where such place of employment exists for a
search warrant providing on its face that the wilful interference with its
lawful execution may be punished as a contempt of court.

(2) Whenever the department finds that any employment
or place of employment or the operation of any machine, device, apparatus, or
equipment is not safe, or that any practice, means, method, operation, or
process employed or used in connection therewith is unsafe or does not afford
adequate protection to the life, safety and health of employees in the
employment, the department shall make a citation or an order relative thereto
which is necessary to render the employment or place of employment safe and
protect the life and safety of employees therein and deliver the same to the
employer. The department may in the citation or order direct that, in the
manner and within a time specified, such additions, repairs, improvements, or
changes be made and such safety devices and safeguards be furnished, provided
and used as are reasonably required to render the employment or place of
employment safe. The employer shall obey and observe all citations or safety
orders and post said citation or order at or near the place where the
violation, referred to in the citation or order occurred.

(3) Whenever in the opinion of the department the
condition of any employment or place of employment, or the operation of any
machine, device, apparatus, or equipment, or any practice, means, method,
operation, or process employed or used, is in an unsafe condition or is not
properly guarded or is dangerously placed, the use thereof may be prohibited by
the department, and a citation or order to that effect shall be posted
prominently in the working place. The citation or order shall be removed: (A)
when a determination has been made by the department that the place of
employment, machine, device, apparatus, or equipment is made safe and the
required safeguards or safety devices are provided for; and (B) by an
authorized representative of the department.

(4) Whenever in the opinion of the department the
condition of any employment or place of employment, or the operation of any
machine, device, apparatus, or equipment, or any practice, means, method,
operation, or process employed or used constitutes an imminent hazard to the
life or safety of any person, the department may apply to the circuit court of
the circuit in which such place of employment, machine, device, apparatus, or
equipment is situated or such practice, means, method, operation, or process is
employed for an injunction restraining the use or operation thereof until the
use or operation is made safe.

The application to the circuit court
accompanied by an affidavit showing that the use or operation exists in
violation of a standard, rule, regulation, citation or order of the department
and constitutes an imminent hazard to the life or safety of any employee, and
accompanied by a copy of the standard, rule, regulation, citation or order
applicable thereto, shall warrant, in the discretion of the court, the
immediate granting of a temporary restraining order. If the department
arbitrarily or capriciously fails to seek relief under this section, any
employee who may be injured by reason of such failure or a representative of
said employee may bring an action against the department in the circuit court
of the circuit in which the imminent hazard is alleged to exist for a writ of
mandamus to compel the department to seek such an order and for such further
relief as may be appropriate. No bond shall be required from the department as
a prerequisite to the granting of a restraining order.

(5) The director and the director's authorized agents
shall have the same powers respecting the administering of oaths, compelling
the attendance of witnesses, the production of documentary evidence, and examining
or causing to be examined witnesses as are possessed by a court, and may take
depositions and certify to official acts. The circuit court of any circuit
upon application by the director shall have power to enforce by proper
proceedings the attendance and testimony of any witness so subpoenaed.
Subpoena and witness fees and mileage in such cases shall be the same as in
criminal cases in the circuit courts. Necessary expenses of or in connection
with any such hearings or investigations shall be payable from the funds
appropriated for expenses of administration of the department.

No person shall be excused from
attending or testifying or producing material, books, paper, correspondence,
memoranda, and other records before the director or in obedience to subpoena on
the grounds that the testimony or evidence, documentary or otherwise, required
of the person may tend to incriminate the person or subject the person to a
penalty or forfeiture; but no individual shall be prosecuted or subjected to any
penalty or forfeiture for or on account of any transaction, matter, or thing
concerning which the individual is compelled, after having claimed the
individual's privilege against self-incrimination, to testify or produce
evidence, documentary, or otherwise, except that such individuals so testifying
shall not be exempt from prosecution and punishment for perjury committed in so
testifying.

(6) Where a condition or practice in a place of
employment could reasonably be expected to cause death or serious physical
harm, the department shall have the right, independent of any other enforcement
powers under this chapter, to: (A) immediately inform the employees and
employers of such hazard by meeting, posted notice, or otherwise; (B) take
steps to obtain immediate abatement of the hazard by the employer and where
appropriate to initiate necessary legal proceedings to require such abatement.

(7) The department may prosecute, defend, and
maintain actions in the name of the department for the enforcement of the provisions
of this chapter, including the enforcement of any order issued by it, the
appeal of any administrative or court decision, and other actions necessary to
enforce this chapter. [L 1972, c 57, pt of §1; am L 1974, c 152, §2; am L 1975,
c 50, §2; am L 1976, c 95, §§3 to 5; am L 1980, c 19, §2; gen ch 1985; am L
1994, c 130, §§2, 4; am L Sp 1995, c 12, §§1, 2; am L 1997, c 347, §2; am L
1998, c 2, §95; am L 1999, c 28, §§1, 2]

Note

Transfer of funds. L 1994, c 130, §4; L Sp 1995, c 12, §2.

Cross References

Depositions, see chapter 624.

Oaths, subpoenas, see §§1-21, 603-21.9, 621-1, 621-12.

Rules of Court

Injunctions, see HRCP rule 65.