Utah Admin. Code R614-1-8 - Rules of Practice for Temporary or Permanent Variance from the Utah Occupational Safety and Health Standards

A . Scope.

This rule contains rules of practice for administrative procedures to grant variances and other relief under section 34A-6-202 of the Utah OSH Act. General information pertaining to employer-employee rights, obligations and procedures are included.

B . Application for, or Petition against Variances and Other Relief.

1 . The applicable parts of section 34A-6-202 of the Utah OSH Act shall govern application and petition procedure.

2 . Temporary variance.

a . Any employer or class of employers desiring a temporary variance from a standard, or portion thereof, authorized by subsection 34A-6-202(2)(c) of the Utah OSH Act must file a written application with the administrator which shall include the following information:

(1) The name and address of applicant;

(2) The address of the place or places of employment involved;

(3) A specification of the standard or portion thereof from which the applicant seeks a variance;

(4) A representation by the applicant, supported by representations from qualified persons having first-hand knowledge of the facts represented, that the applicant is unable to comply with the standard or portion thereof by its effective date and a detailed statement of the reasons therefor;

(5) A statement of the steps the applicant has taken and will take, with specific dates where appropriate, to protect employees against the hazard covered by the standard;

(6) A statement of when the applicant expects to be able to comply with the standard and of what steps it has taken and will take, with specific dates where appropriate, to come into compliance with the standard;

(7) A statement of the facts the applicant would show to establish that

i. The applicant is unable to comply with a standard by its effective date because of unavailability of professional or technical personnel or of materials and equipment needed to come into compliance with the standard or because necessary construction or alteration of facilities cannot be completed by the effective date;

ii. The applicant is taking all available steps to safeguard its employees against the hazards covered by the standard; and

iii. The applicant has an effective program for coming into compliance with the standard as quickly as practicable;

(8) Any request for a hearing, as provided in this rule;

(9) A statement that the applicant has informed its affected employees of the application by giving a copy thereof to their authorized representative, posting a statement, which gives a summary of the application and specifying where a copy may be examined, at the place or places where notices to employees are normally posted, and by other appropriate means; and

(10) A description of how affected employees have been informed of the application and their right to petition the administrator for a hearing.

b. A temporary order may be granted only after notice to employees and an opportunity for a public hearing; provided, the administrator may issue one interim order effective until a decision is made, formally granting or denying a temporary variance, after public hearing.

(1) The purpose of an interim order is to permit an employer to proceed in a non-standard operation while administrative procedures are being completed. Use of this interim procedure is dependent upon need and employee safety.

(2) After determination and assurance that employees are to be adequately protected, the administrator may immediately grant, in writing, an interim order. To expedite the effect of the interim order, it may be issued at the worksite by the administrator.

3. Permanent variance.

a. Any employer desiring a permanent variance of a standard issued under section 34A-6-202 of the Utah OSH Act must apply to the division for a rule or order for such variance. The written application must include the following information:

(1) The name and address of applicant;

(2) The address of the place or places of employment involved;

(3) A description of the conditions, practices, means, methods, operations, or processes used or proposed to be used by the applicant;

(4) A statement showing how the conditions, practices, means, methods, operations, or processes used or proposed to be used would provide employment and places of employment to employees which are as safe and healthful as those required by the standard from which a variance is sought;

(5) The methods it will use to safeguard its employees until a variance is granted or denied;

(6) A certification that the applicant has informed its employees of the application by

i . Giving a copy thereof to their authorized representative;

ii. Posting a statement giving a summary of the application and specifying where a copy may be examined, at the place or places where notices to employees are normally posted (or in lieu of such summary, the posting of the application itself); and

iii. By other appropriate means;

(7) Any request for a hearing, as provided in this rule; and

(8) A description of how employees have been informed of the application and their right to petition the administrator for a hearing.

4 . Whenever a proceeding on a citation or a related issue concerning a proposed penalty or period of abatement has been contested and is pending before an administrative law judge or any subsequent review under the Administrative Procedures Act, until the completion of such proceeding, the administrator may deny a variance application on a subject or an issue concerning a citation which has been issued to the employer.

C . Hearings.

1 . The administrator may conduct hearings upon application or petition in accordance with section 34A-6-202(4) of the Utah OSH Act if:

a . Employee(s), the public, or other interested groups petition for a hearing; or

b . The administrator deems it in the public or employee interest.

2 . When a hearing is considered appropriate, the administrator shall set the date, time, and place for such hearing and shall provide timely notification to the applicant and the petitioners. In the notice of hearing to the applicant, the applicant will be directed to notify its employees of the hearing.

3 . Notice of hearings for proposed rules under section 34A-6-202(4) of the Utah OSH Act shall be published in the Utah State Bulletin. This shall include a statement that the application request may be inspected at the UOSH Office.

4 . A copy of the Notice of Hearing, along with other pertinent information, shall be sent to the regional administrator for the federal Occupational Safety and Health Administration (OSHA).

D . Inspection for Variance Application.

1 . A variance inspection may be required by the administrator or its designee prior to final determination of either acceptance or denial of a temporary or permanent variance.

2 . A variance inspection is a single purpose, pre-announced, non-compliance inspection and shall include employee or employer representative participation or interviews where necessary.

E . Defective Applications.

1 . If an application for variance does not meet the requirements of UAC R614-1-8.B., the administrator may deny the application.

2 . Prompt notice of the denial of an application shall be given to the applicant.

3. The notice of denial shall include, or be accompanied by, a brief statement of the grounds for denial.

4. A denial of an application pursuant to this paragraph shall be without prejudice to the filing of another application.

5. A copy of the notice of denial shall be sent to the regional administrator for OSHA.

F. Adequate Applications.

1. The administrator may grant the request for variance provided that:

a. Data supplied by the applicant, the UOSH variance inspection, as applicable, and information and testimony affords adequate protection for the affected employee(s);

b. Notification of approval shall follow the pattern described in UAC R614-1-9.C.2. and 3.;

c. Limitations, restrictions, or requirements which become part of the variance shall be documented in the letter granting the variance.

2. The administrator's decision shall be deemed final subject to section 34A-6-202(6) of the Utah OSH Act.

G. Public Notice of a Granted Variance, Limitation, Variation, Tolerance or Exemption.

1. This paragraph does not apply to orders issued under section 34A-6-202 of the Utah OSH Act.

2. Final actions granting a variance, limitation, variation, tolerance or exemption under this rule shall be published in the Utah State Bulletin pursuant to Title 63G, Chapter 3, Utah Administrative Rulemaking Act. Every such final action shall specify the alternative to the standard involved which the particular variance permits.

H. Acceptance of Federally Granted Variances.

1. Where a variance has been granted by OSHA, following federal promulgation procedures, the administrator shall take the following action:

a. Compare the federal OSHA standard for which the variance was granted with the equivalent UOSH standard.

b. Identify possible application in Utah.

c. If the UOSH standard under consideration for application of the variance has exactly or essentially the same intent as the federal standard and there is the probability of a multi-state employer doing business in Utah, then the administrator shall accept the variance and promulgate it for Utah under the provisions of Title 63G, Chapter 3, Utah Administrative Rulemaking Act.

d. If the variance has no apparent application to Utah industry, or to a multi-state employer in Utah, or if it conflicts with Utah legislative intent, or established policy or procedure, the federal variance shall not be accepted. In such case, the regional administrator for OSHA will be so notified.

I. Revocation of a Variance.

1. Any variance (temporary or permanent), whether approved by UOSH or accepted by UOSH based on federal approval, may be revoked by the administrator if it is determined through on-site inspection that:

a. The employer is not complying with provisions of the variance as granted;

b. Adequate employee safety is not afforded by the original provisions of the variance; or

c. A more stringent standard has been promulgated, is in force, and conflicts with prior considerations given for employee safety.

2 . A federally approved national variance may be revoked by UOSH for a specific worksite or place of employment within Utah for reasons cited in UAC R614-1-8.I.1. Such revocations must be in writing and give full particulars and reasons prompting the action. Full rights provided under the law, such as hearings, etc., must be afforded the employer.

3 . Permanent variances may be revoked or changed only after being in effect for at least six months.

J . Coordination.

All variances issued by the administrator will be coordinated with OSHA to ensure consistency and avoid improper unilateral action.

Notes

Utah Admin. Code R614-1-8

Amended by Utah State Bulletin Number 2020-02, effective 12/23/2019