Section 11-46-8 - Variances(a) Applicability. In accordance with section 342F-5, HRS, the director may grant, renew, modify, suspend, revoke, or deny variances to operate any excessive noise source which emits or may emit noise levels in excess of the maximum permissible sound levels specified in Table l, Maximum permissible sound levels in dBA, of section 11-46-4(a), and which use or operation does not conform to the requirements of section 11-46-7, or other applicable provisions of this chapter.(b) No variance, modification, or renewal shall be granted by the director unless the application and the supporting information clearly show that: (1) The continuation of the function or operation involved in the emission occurring or proposed to occur by the granting of the variance is in the public interest, as defined in section 11-46-7(c);(2) The emission occurring or proposed to occur does not substantially endanger human health or safety; and(3) Compliance with the provisions of this chapter from which the variance is sought would produce serious hardship without equal or greater benefits to the public.(c) Application for variance, modification, or renewal. (1) Every application shall be submitted on forms furnished by the director.(2) Every application shall be accompanied by a complete and detailed description of present conditions, how present conditions do not conform to standards, and such other information as the director may by rule prescribe.(3) Every application shall be reviewed' in light of the descriptions, statements, plans, histories, and other supporting information submitted with the application; any additional information as may be submitted upon the request of the director; and the effect or probable effect upon the maximum permissible sound levels established pursuant to this chapter.(4) The applicant shall submit sufficient information to enable the director to make a decision on the application. Subject to the request of the director, every application for variance may include the following information; (A) Applicant identification;(B) Type and purpose of activity, including a brief description of the applicant's activity which results in the proposed emission;(C) Location and time of activity;(D) A list of vehicles, construction or agricultural equipment, tools, and any devices;(E) Estimated duration and schedule of activity;(F) Plans and procedures for the attenuation of noise emission from noise sources to minimize excessive noise levels;(G) Description of the immediate impact area;(H) Any adverse environmental effects which cannot be avoided;(I) Description of alternatives to the proposed activity;(J) Discussion of the relationship between short-term use of the environment and the maintenance and enhancement of long-term productivity;(K) Discussion of any irreversible and irretrievable commitments of resources which would be involved in the proposed activity;(L) Disclosure of any possible impact from noise created by any proposed nighttime activity which may affect the immediate surrounding;(M) Plans for notification of the people in the surrounding area of planned nighttime activities; and(N) Such other information as the director may request.(5) The director shall not act upon or consider any incomplete application for variance, modification or renewal. An application shall be deemed complete only when all required and requested information, including the application form, plans, schedules, specifications, and other information have been timely submitted.(6) Every application shall be signed by the applicant and shall constitute an acknowledgment and agreement that the applicant will comply with all of the terms and conditions of the variance, this chapter, and chapter 342F, HRS.(7) The director may require the submission of additional information after the application has been submitted, and may ensure that, if an application is incomplete or otherwise deficient, processing of the application shall not be completed until such time as the applicant has supplied all required information or otherwise corrected the deficiency.(8) Every application, for renewal shall be made at least one hundred eighty days prior to the expiration of the variance. The director shall act on a completed application for renewal within one hundred eighty days of the receipt of such application.(9) Every application for renewal shall meet all conditions specified in the immediately preceding variance; and shall provide for emission not greater than that attained pursuant to the terms of the immediately preceding variance at its expiration.(d) Public participation requirements. (1) Any application for a variance, submitted pursuant to this chapter, shall be subject to the public participation requirements.(2) Public notices of every completed application for a variance, except an application for off-hour road work, shall be circulated in a manner designed to inform interested and potentially interested persons of the proposed emission.(3) Procedures for the circulation of public notices shall include at least the following: (A) Notices shall be circulated within the geographical areas of the proposed emission; such circulation shall include publishing in local newspapers and periodicals, or, if appropriate, in a daily newspaper of general circulation;(B) Notice shall be mailed to any person upon request; and(C) The director shall add the name of any person, upon request, to a mailing list to receive copies of notices for all variance applications within the State or within a certain geographical area.(4) The director shall provide a period of not less than thirty days following the date of the public notice during which time interested persons may submit their written review with respect to the variance application and the tentative determinations of the department, if any. The period for comment may be extended at the discretion of the director.(5) The contents of the public notice of applications for variances shall include at least the following: (A) Name, address, and phone number of agency issuing the public notice;(B) Name and address of each applicant;(C) Brief description of each applicant's activities or operations which result in the emission described in the variance application;(D) A short description of the location of each emission indicating whether such emission is new or existing;(E) A brief description of the procedures for the formulation of final determinations, including the thirty-day comment period required by paragraph (4), and any other means by which interested persons may influence or comment upon those determinations; and(F) Address and phone number of state agency premises at which interested persons may obtain further information and inspect a copy of the variance applications and supporting and related documents.(6) The director may hold a public hearing, if, after reviewing the comments submitted under paragraph (4), the director determines that a public hearing is warranted. Any hearing brought pursuant to this subsection shall be held in the geographical area of the proposed emission or other appropriate area, at the discretion of the director.(e) Fees. (1) The director may establish reasonable fees for the issuance of variance and renewals to cover the cost of issuance thereof and for the implementation and enforcement of the terms and conditions of variances.(2) Every applicant for variance or renewal shall pay the applicable fee as set forth in subsection (f);(3) Fees shall not be refunded nor applied to any subsequent application; and(4) Fees shall be made payable to the State of Hawaii.(f) Fee schedule. The fee for a variance or renewal of a variance shall be $100 per year and all costs associated with the public participation requirements as provided in subsection (d), including but not limited to costs for publication of public notices, circulation of public notices, and public hearing. Public notices shall be prepared by the department.(g) Granting of variances, modifications, or renewals. (1) If a variance, modification, or renewal is granted on the grounds that there is no practicable means known or available for the adequate prevention, control, or abatement of the excessive noise involved, it shall be only until the necessary means for prevention, control, or abatement become practicable, and subject to the taking of any substitute or alternate measures that the director may prescribe.(2) Every variance, modification, or renewal granted under this section shall include conditions requiring the grantee to perform noise sampling and report the results of such sampling to the director.(h) Period of variance, modification, or renewal. (1) The director may issue a variance or renewal for a period not exceeding five years.(2) The period of modification shall be the period of the variance originally issued, for the term not exceeding five years.(3) On written request, the director may extend the period of the variance upon showing that an extension is justified; provided in no case shall an extension be granted if the combined term of the originally issued variance and any extension or extensions exceeds five years. Any extension or extensions shall be subject to annual fees as provided in subsection (f).(i) Variance conditions. Each variance may be subject to such reasonable conditions as the director may prescribe.(j) Suspension, revocation, or denial. The director may suspend, revoke, or deny any variance if, after affording an opportunity for a hearing in accordance with chapter 91, HRS, it is determined that: (1) There is a violation of any condition of the variance;(2) There are deviations from, or failure to comply with, all information or facts contained within the variance;(3) The variance was obtained by misrepresentation or failure to disclose fully all relevant facts;(4) There is a change in any condition that requires either a temporary or permanent reduction or elimination of the excessive noise emission; or(5) Such action is in the public interest.(k) Termination of variances. The director shall be notified, in writing, of the permanent termination of the activity for which the variance has been granted. If such notice is not received by the expiration date specified in the variance, the variance shall automatically terminate and the applicant shall be divested of all rights therein.(l) Records. The director shall keep records of all requests for variance and their disposition.[Eff SEP 23 1996] (Auth: HRS §§ 342F-3, 342F-5, 342F-14-, 342F-31) (Imp: HRS §§ 342F-3, 342F-5, 342F-14, 342F-31)