§397-4  Powers and duties.  (a) Administration.

(1)  The department shall establish a boiler andelevator inspection branch for the enforcement of the rules adopted under thischapter and other duties as assigned;

(2)  The department shall:

(A)  Implement and enforce the requirements ofthis chapter; and

(B)  Keep adequate and complete records of thetype, size, location, identification data, and inspection findings for boilers,pressure systems, amusement rides, and elevators and kindred equipment requiredto be inspected pursuant to this chapter;

(3)  The department shall formulate definitions andadopt and enforce standards and rules pursuant to chapter 91 that may benecessary for carrying out this chapter.  Definitions and rules adopted inaccordance with chapter 91 under the authority of chapter 396, prior to theadoption of this chapter that pertain to boilers, pressure systems, amusementrides, and elevators and kindred equipment required to be inspected pursuant tothis chapter, shall be continued in force under the authority of this chapter;

(4)  Emergency temporary standards may be adoptedwithout conforming to chapter 91 and without hearings to take immediate effectupon giving public notice of the emergency temporary standards or upon another datethat may be specified in the notice.  An emergency temporary standard may beadopted, if the director determines:

(A)  That the public or individuals are exposedto grave danger from exposure to hazardous conditions or circumstances; and

(B)  That the emergency temporary standard isnecessary to protect the public or individuals from danger.

Emergency temporary standards shall beeffective until superseded by a standard adopted under chapter 91, but in anycase shall be effective no longer than six months;

(5)  Variances from standards adopted under thischapter may be granted upon application of an owner, user, contractor, orvendor.  Application for variances shall correspond to procedures set forth inthe rules adopted pursuant to this chapter.  The director may issue an orderfor variance, if the director determines that the proponent of the variance hasdemonstrated that the conditions, practices, means, methods, operations, orprocesses used or proposed to be used will provide substantially equivalentsafety as that provided by the standards;

(6)  Permits.

(A)  The department shall issue a "permitto operate" regarding any boiler, pressure system, amusement ride, orelevator and kindred equipment if found to be safe in accordance with rules adoptedpursuant to chapter 91;

(B)  The department may immediately revoke any"permit to operate" of any boiler, pressure system, amusement ride,or elevator and kindred equipment found to be in an unsafe condition or where auser, owner, or contractor ignores prior department orders to correct specificdefects or hazards and continues to use or operate the above mentionedapparatus without abating the hazards or defects;

(C)  The department shall reissue a"permit to operate" to any user, owner, or contractor whodemonstrates that the user, owner, or contractor is proceeding in good faith toabate all nonconforming conditions mentioned in department orders and theboilers, pressure systems, amusement rides, and elevators and kindred equipmentare safe to operate; and

(D)  The department shall establish criteriafor the periodic reinspection and renewal of the permits to operate, and mayprovide for the issuance of temporary permits to operate while any noncomplyingboiler, pressure system, amusement ride, and elevator and kindred equipment arebeing brought into full compliance with the applicable standards and rulesadopted pursuant to this chapter; provided that the period between an initialsafety inspection or the inspection used as a basis for the issuance of apermit to operate, and any subsequent inspection of elevators and kindredequipment shall not exceed one year;

(7)  No boiler, pressure system, amusement ride, orelevator and kindred equipment which are required to be inspected by thischapter or by any rule adopted pursuant to this chapter shall be operated,except as necessary to install, repair, or test, unless a permit to operate hasbeen authorized or issued by the department and remains valid; and

(8)  The department, upon the application of any owneror user or other person affected thereby, may grant time that may reasonably benecessary for compliance with any order.  Any person affected by an order mayfor cause petition the department for an extension of time.

(b)  Inspection and investigation.

(1)  Authorized representatives of the director shallhave the right to enter without delay during regular working hours and at otherreasonable times any place, establishment or premises in which are locatedboilers, pressure systems, amusement rides, and elevators and kindred equipmentrequiring inspection pursuant to this chapter.

(2)  The department shall inspect for the purpose ofinsuring compliance with the purposes and provisions of this chapter anyactivity related to the erection, construction, alteration, demolition ormaintenance of buildings, structures, bridges, highways, roadways, dams,tunnels, sewers, underground buildings or structures, underground pipelines orducts, and other construction projects or facilities.

(3)  The department shall review plans and makeinspections, and investigations of boilers, and pressure systems, and thepremises appurtenant to each at times and at intervals determined by thedirector for the purpose of insuring compliance with the purpose and provisionsof this chapter.  This section shall not apply to single family dwellings ormultiple dwelling units of less than six living units.

(4)  The department shall review plans and makeinspections, and investigations of elevators and kindred equipment and thepremises appurtenant to each at times and at intervals determined by thedirector for the purpose of insuring compliance with the purposes andprovisions of this chapter.  This section shall not apply to single familydwellings.

(5)  The department shall inspect, at leastsemi-annually all mechanically or electrically operated devices considered asmajor rides and used as amusement rides at a carnival, circus, fair, oramusement park for the purpose of protecting the safety of the general public. This section shall not apply to any coin operated ride or mechanically orelectrically operated devices considered or known in the amusement trade askiddie rides.

(6)  The department may investigate accidentsinvolving boilers, pressure systems, amusement rides, and elevators and kindredequipment inspected under this chapter and may issue orders and recommendationswith respect to the elimination and control of the cause factors.

(7)  The department shall have the right to questionany employer, owner, operator, agent or employee in investigation, enforcement,and inspection activities covered by this chapter.

(8)  Any employee of the State acting within the scopeof the employee's office, employment, or authority under this chapter shall notbe liable in or made a party to any civil action growing out of theadministration and enforcement of this chapter.

(c)  Education and training.

(1)  The department may disseminate throughexhibitions, pictures, lectures, pamphlets, letters, notices, and any othermethod of publicity, to owners, users, vendors, architects, contractors,employees, and the general public information regarding boilers, pressuresystems, amusement rides, and elevators and kindred equipment required to beinspected pursuant to this chapter.

(2)  Where appropriate, the department may undertakeprograms in training and consultation with owners, users, property managementfirms, vendors, architects, contractors, employees, and the general publicregarding the safety requirements of this chapter and the rules andregulations.

(d)  Enforcement.

(1)  Whenever right of entry to a place to inspect anyboiler, pressure system, amusement ride, or elevator and kindred equipmentrequired by this chapter to be inspected is refused to an authorizedrepresentative of the director, the department may apply to the circuit courtwhere such place exists for a search warrant providing on its face that thewilful interference with its lawful execution may be punished as a contempt ofcourt.

(2)  Whenever the department finds that theconstruction of or the operation of any boiler, pressure system, amusementride, or elevator and kindred equipment required to be inspected by thischapter is not safe, or that any practice, means, method, operation or processemployed or used is unsafe or is not in conformance with the rules andregulations promulgated pursuant to this chapter, the department shall issue anorder to render the construction or operation safe or in conformance with thischapter or rules and regulations and deliver the same to the contractor, owner,or user.  Each order shall be in writing and may be delivered by mail or inperson.  The department may in the order direct that, in the manner and withina time specified such additions, repairs, improvements, or changes be made andsuch safety devices and safeguards be furnished, provided and used as arereasonably required to insure compliance with the purposes and provisions ofthis chapter.  The owner, or user, or contractor shall obey and observe allorders issued by the department or be subject to appropriate civil penalties.

(3)  Whenever in the opinion of the department thecondition of, or the operation of boilers, pressure systems, amusement rides,or elevators and kindred equipment required to be inspected by this chapter, orany practice, means, method, operation, or process employed or used, is unsafe,or is not properly guarded or is dangerously placed, the use thereof may beprohibited by the department, an order to that effect shall be posted prominentlyon the equipment, or near the place or condition referred to in the order.  Theorder shall be removed when a determination has been made by an authorizedrepresentative of the department that the boilers, pressure systems, amusementrides, or elevators and kindred equipment are safe and the required safeguardsor safety devices are provided.

(4)  When in the opinion of the department theoperation of boilers, pressure systems, amusement rides, or elevators andkindred equipment, required to be inspected by this chapter or any practice,means, method, operation or process employed or used constitutes an imminenthazard to the life or safety of any person, or to property, the department mayapply to the circuit court of the circuit in which such boilers, pressuresystems, amusement rides, or elevators and kindred equipment are situated orsuch practice, means, method, operation or process is employed for aninjunction restraining the use or operation until the use or operation is madesafe.  The application to the circuit court accompanied by an affidavit showingthat the use or operation exists in violation of a standard, rule, regulation,variance, or order of the department and constitutes an imminent hazard to thelife or safety of any person or to property and accompanied by a copy of thestandard, rule, regulation, variance, or applicable order, shall warrant, inthe discretion of the court, the immediate granting of a temporary restrainingorder.  No bond shall be required from the department as a prerequisite to thegranting of a restraining order.

(5)  The director and the director's authorizedrepresentative shall have the same powers respecting the administering ofoaths, compelling the attendance of witnesses, the production of documentaryevidence, and examining or causing to be examined witnesses as are possessed bythe court and may take depositions and certify to official acts.  The circuitcourt of any circuit upon application by the director shall have the power toenforce by proper proceedings the attendance and testimony of any witness sosubpoenaed.  Subpoena and witness fees and mileage in such cases shall be thesame as in criminal cases in the circuit courts.  Necessary expenses of, or inconnection with, such hearings or investigations shall be payable from thefunds appropriated for expenses of administration of the department.  No personshall be excused from attending or testifying or producing materials, books,papers, correspondences, memoranda, and other records before the director or inobedience to subpoena on the grounds that the testimony or evidence,documentary or otherwise, required of the person may tend to incriminate theperson or subject the person to a penalty or forfeiture; but no individualshall be prosecuted or subjected to any penalty or forfeiture for or on accountof any transaction, matter, or thing concerning which the individual iscompelled, after having claimed the individual's privilege againstself-incrimination, to testify or produce evidence, documentary, or otherwise,except that such individuals so testifying shall not be exempt from prosecutionand punishment for perjury committed in so testifying.

(6)  Where a condition or practice involving anyboiler, pressure system, amusement ride, or elevator and kindred equipmentrequired to be inspected by this chapter could reasonably be expected to causedeath or serious physical harm, the department shall have the right,independent of any other enforcement powers under this chapter, to:

(A)  Immediately take steps to obtain abatementby informing the owners, users, contractors, and all persons in harms way ofsuch hazard by meeting, posted notice, or otherwise;

(B)  Take steps to immediately obtain abatementthrough direct control or elimination of the hazard if after reasonable search,the user, owner or contractor or their representative is not available;

(C)  Take steps to obtain immediate abatementwhen the nature and imminency of the danger or hazard does not permit a searchfor the owner, user, or contractor; and

(D)  Where appropriate, initiate necessarylegal proceedings to require abatement by the owner, user or contractor.

(7)  The department may prosecute, defend and maintainactions in the name of the department for the enforcement of the provisions ofthis chapter, including the enforcement of any order issued by it, the appealof any administrative or court decision, and other actions necessary to enforcethis chapter. [L 1980, c 19, pt of §1; gen ch 1985; am L 1998, c 2, §96 and c142, §3; am L 2000, c 246, §1; am L 2002, c 216, §2]