§ 28-20-29 - Granting of variances – Statement of reasons for various actions by director.
SECTION 28-20-29
§ 28-20-29 Granting of variances –Statement of reasons for various actions by director. – (a) Any employer may apply to the director for a temporary order granting avariance from a code or any provision of a code promulgated under this chapter.
(2) The temporary order shall be granted only if the employerfiles an application that meets the requirements of subsection (b) of thissection and establishes that:
(i) He or she is unable to comply with a code by itseffective date because of the unavailability of professional or technicalpersonnel or of materials and equipment needed to come into compliance with thecode, or because necessary construction or alteration of facilities cannot becompleted by the effective date;
(ii) He or she is taking all available steps to safeguard hisemployees against the hazards covered by the code; and
(iii) He or she has an effective program for coming intocompliance with the code as quickly as practicable.
(3) Any temporary order issued under this subsection shallprescribe the practices, means, methods, operations, and processes which theemployer must adopt and use while the order is in effect and state in detailhis or her program for coming into compliance with the code.
(4) A temporary order may be granted only after notice toemployees and an opportunity for a hearing; provided, that the director mayissue one interim order to be effective until a decision is made on the basisof the hearing.
(5) No temporary order may be in effect for longer than theperiod needed by the employer to achieve compliance with the code or one year,whichever is shorter, except that a temporary order may not be renewed morethan twice:
(i) So long as the requirements of this subsection are met and
(ii) If an application for renewal is filed at least ninety(90) days prior to the expiration date of the order.
(6) No interim renewal of an order may remain in effect forlonger than one hundred and eighty (180) days.
(b) An application for a temporary order under this sectionshall contain:
(1) A specification of the code or portion of it from whichthe employer seeks a variance;
(2) A representation by the employer, supported byrepresentations from qualified persons having first hand knowledge of the factsrepresented, that he or she is unable to comply with the code or portion of itand a detailed statement of the reasons for the noncompliance;
(3) A statement of the steps he or she has taken and willtake, with specific dates, to protect employees against the hazards covered bythe code;
(4) A statement of when he or she expects to be able tocomply with the code and what steps he or she has taken and what steps he orshe will take, with specific dates, to come into compliance with the code; and
(5) A certification that he or she has informed his or heremployees of the application by giving a copy of it to their authorizedrepresentatives, and by posting a statement giving a summary of the applicationand specifying where a copy may be examined at the place or places wherenotices to employees are normally posted, and by other appropriate means. Adescription of how employees have been informed shall be contained in thecertification. The information to employees shall also inform them of theirrights to petition the director for a hearing.
(c) The director is authorized to grant a variance from anycode or portion of it whenever he or she determines, or the director of healthcertifies, that the variance is necessary to permit an employer to participatein an experiment approved by him or her or the director of health designed todemonstrate or validate new and improved techniques to safeguard the health orsafety of workers.
(d) Any affected employer may apply to the director for arule or order for a permanent variance from a code promulgated under §28-20-24. Affected employees shall be given notice of each application and anopportunity to participate in a hearing. The director shall issue a rule ororder if he or she determines on the record, after opportunity for aninspection where appropriate, and a hearing that the proponent of the permanentvariance has demonstrated by a preponderance of the evidence that theconditions, practices, means, methods, operations, or processes used orproposed to be used by an employer will provide employment and places ofemployment to the employees which are as safe and healthful as those whichwould prevail if the employer complied with the code. The rule or order issuedshall prescribe the conditions the employer must maintain, and the practices,means, methods, operations, and processes, which he or she must adopt andutilize to the extent they differ from the code in question. The rule or ordermay be modified or revoked for cause upon application by an employer,employees, or by the director on his or her own motion, in the mannerprescribed for its issuance under this subsection at any time after six (6)months from its issuance.
(e) Whenever the director promulgates any code, makes anyrule, order, or decision, grants any exemption or extension of time, orcompromises, mitigates, or settles any penalty assessed under this chapter ortitle 23, he or she shall include a statement of the reasons for the action,and a copy of the code, rule, order or decision shall be filed with thesecretary of state pursuant to § 42-35-4 on the day in which it ispromulgated.