HB1130 HD2.DOC

SECTION 1. The purpose of this Act is to allow the department of labor and industrial relations to establish re-inspection frequencies for elevators and kindred equipment based on factors that may affect the safe operation of the equipment. Currently, the law requires that re-inspections for renewals of permits to operate not exceed one year. The intent is to provide incentives to building owners and managers to take the necessary steps to provide for the safe operation of elevators and kindred equipment. Those who have newer equipment with fail-safe technology and who regularly maintain the equipment in a safe operating condition will be allowed a longer interval between re-inspections and thus incur fewer inspection costs. Equipment that is older and inadequately maintained will be subject to more frequent re-inspections, with the owner paying for the additional inspections. Involvement by the regulated community is necessary to ensure the safe operation of the equipment.

Other amendments are mostly housekeeping in nature, including a provision that when the department needs to gather information as part of its investigations or inspections, records and documents may be requested in addition to asking questions.

SECTION 2. Section 397-4, Hawaii Revised Statutes, is amended to read as follows:

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

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

(2) The department shall:

(A) Implement and enforce the requirements of this chapter; and

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

(3) The department shall formulate definitions and adopt and enforce standards and rules pursuant to chapter 91 that may be necessary for carrying out this chapter. Definitions and rules adopted in accordance with chapter 91 under the authority of chapter 396, prior to the adoption of this chapter that pertain to boilers, pressure systems, amusement rides, and elevators and kindred equipment required to be inspected pursuant to this chapter, shall be continued in force under the authority of this chapter;

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

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

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

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

(5) Variances from standards adopted under this chapter may be granted upon application of an owner, user, contractor, or vendor. Application for variances shall correspond to procedures set forth in the rules adopted pursuant to 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 will provide substantially equivalent safety as that provided by the standards;

(6) Permits.

(A) The department shall issue a "permit to operate" regarding any boiler, pressure system, amusement ride, or elevator and kindred equipment if found to be safe in accordance with rules adopted pursuant 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 a user, owner, or contractor ignores prior department orders to correct specific defects or hazards and continues to use or operate the above mentioned apparatus without abating the hazards or defects;

(C) The department shall reissue a "permit to operate" to any user, owner, or contractor who demonstrates that the user, owner, or contractor is proceeding in good faith to abate all nonconforming conditions mentioned in department orders and the boilers, pressure systems, amusement rides, and elevators and kindred equipment are safe to operate; and

(D) The department shall establish criteria for the periodic reinspection and renewal of the permits to operate, and may provide for the issuance of temporary permits to operate while any noncomplying boiler, pressure system, amusement ride, and elevator and kindred equipment are being brought into full compliance with the applicable standards and rules adopted pursuant to this chapter[; provided that the period between an initial safety inspection or the inspection used as a basis for the issuance of a permit to operate, and any subsequent inspection of elevators and kindred equipment shall not exceed one year;]. Criteria to be used for the periodic reinspection and renewal of a permit to operate shall include the age and type of equipment, discrepancy history, and whether the equipment is regularly and adequately maintained in a safe operating condition, and shall be based upon the American Society of Mechanical Engineers standards contained in ASME A17.1-2000 Section 8.6;

(7) No boiler, pressure system, amusement ride, or elevator and kindred equipment which are required to be inspected by this chapter 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 has been authorized or issued by the department and remains valid; and

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

(b) Inspection and investigation.

(1) Authorized representatives of the director shall have the right to enter without delay during regular working hours and at other reasonable times any place, establishment, or premises in which are located boilers, pressure systems, amusement rides, and elevators and kindred equipment requiring inspection pursuant to this chapter[.];

(2) The department shall inspect for the purpose of insuring compliance with the purposes and provisions of this chapter 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 other construction projects or facilities[.];

(3) The department shall review plans and make inspections, and investigations of boilers, and pressure systems, and the premises appurtenant to each at times and at intervals determined by the director for the purpose of insuring compliance with the purpose and provisions of this chapter. This section shall not apply to single family dwellings or multiple dwelling units of less than six living units[.];

(4) The department shall review plans and make inspections, and investigations of elevators and kindred equipment and the premises appurtenant to each at times and at intervals determined by the director for the purpose of insuring compliance with the purposes and provisions of this chapter. This section shall not apply to single family dwellings[.];

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

(6) The department may investigate accidents involving boilers, pressure systems, amusement rides, and elevators and kindred equipment inspected under this chapter and may issue orders and recommendations with respect to the elimination and control of the cause factors[.];

(7) The department shall have the right to question and to obtain pertinent records and documents from any employer, owner, operator, agent, or employee in investigation, enforcement, and inspection activities covered by this chapter[.]; and

(8) Any 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 and enforcement of this chapter.

(1) The department may disseminate through exhibitions, pictures, lectures, pamphlets, letters, notices, and any other method of publicity, to owners, users, vendors, architects, contractors, employees, and the general public information regarding boilers, pressure systems, amusement rides, and elevators and kindred equipment required to be inspected pursuant to this chapter[.]; and

(2) Where appropriate, the department may undertake programs in training and consultation with owners, users, property management firms, vendors, architects, contractors, employees, and the general public regarding the safety requirements of this chapter and the rules and regulations.

(d) Enforcement.

(1) Whenever right of entry to a place to inspect any boiler, pressure system, amusement ride, or elevator and kindred equipment required by this chapter to be inspected is refused to an authorized representative of the director, the department may apply to the circuit court where such place 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 the construction of or the operation of any boiler, pressure system, amusement ride, or elevator and kindred equipment required to be inspected by this chapter is not safe, or that any practice, means, method, operation, or process employed or used is unsafe or is not in conformance with the rules and regulations promulgated pursuant to this chapter, the department shall issue an order to render the construction or operation safe or in conformance with this chapter 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 in person. The department may in the 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 insure compliance with the purposes and provisions of this chapter. The owner, or user, or contractor shall obey and observe all orders issued by the department or be subject to appropriate civil penalties[.];

(3) Whenever in the opinion of the department the condition of, or the operation of boilers, pressure systems, amusement rides, or elevators and kindred equipment required to be inspected by this chapter, or any practice, means, method, operation, or process employed or used, is unsafe, or is not properly guarded or is dangerously placed, the use thereof may be prohibited by the department, an order to that effect shall be posted prominently on the equipment, or near the place or condition referred to in the order. The order shall be removed when a determination has been made by an authorized representative of the department that the boilers, pressure systems, amusement rides, or elevators and kindred equipment are safe and the required safeguards or safety devices are provided[.];

(4) When in the opinion of the department the operation of boilers, pressure systems, amusement rides, or elevators and kindred equipment, required to be inspected by this chapter or any practice, means, method, operation or process employed or used constitutes an imminent hazard to the life or safety of any person, or to property, the department may apply to the circuit court of the circuit in which such boilers, pressure systems, amusement rides, or elevators and kindred equipment are situated or such practice, means, method, operation or process is employed for an injunction restraining the use or operation 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, variance, or order of the department and constitutes an imminent hazard to the life or safety of any person or to property and accompanied by a copy of the standard, rule, regulation, variance, or applicable order, shall warrant, in the discretion of the court, the immediate granting of a temporary restraining order. 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 representative 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 the court and may take depositions and certify to official acts. The circuit court of any circuit upon application by the director shall have the 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, 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 materials, books, papers, correspondences, 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 involving any boiler, pressure system, amusement ride, or elevator and kindred equipment required to be inspected by this chapter 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 take steps to obtain abatement by informing the owners, users, contractors, and all persons in [~~harms~~] harm′s way of such hazard by meeting, posted notice, or otherwise;

(B) Take steps to immediately obtain abatement through 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 abatement when the nature and imminency of the danger or hazard does not permit a search for the owner, user, or contractor; and

(D) Where appropriate, initiate necessary legal proceedings to require abatement by the owner, user, or contractor[.];

and

(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."

SECTION 3. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 4. This Act shall take effect upon its approval.

HOUSE OF REPRESENTATIVES	H.B. NO.	1130
TWENTY-FIFTH LEGISLATURE, 2009		H.D. 2
STATE OF HAWAII