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          The emergency temporary standard shall be effective until superseded by a standard adopted in accordance with the procedures set forth in chapter 91, but in any case shall be effective no longer than six months;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

     (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; and

     (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.

     (c)  Education and training.

     (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; and

     (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; 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. [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]

Revision Note

  Pursuant to §23G-15, in:

  (1)  Subsection (a)(3), "and" deleted;

  (2)  Subsection (b)(6), "and" added after ending punctuation;

  (3)  Subsection (c)(1), punctuation changed and "and" added after ending punctuation;

  (4)  Subsection (d)(1) and (2), punctuation changed;

  (5)  Subsection (d)(3), (A) and (B) reformatted as subparagraphs (A) and (B);

  (6)  Subsection (d)(3)(B), punctuation changed;

  (7)  Subsection (d)(4) and (5), punctuation changed;

  (8)  Subsection (d)(6), (A) and (B) reformatted as subparagraphs (A) and (B); and

  (9)  Subsection (d)(6)(B), punctuation changed, and "and" added after ending punctuation.

Cross References

  Depositions, see chapter 624.

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

Rules of Court

  Injunctions, see HRCP rule 65.