2014 Kentucky Revised Statutes CHAPTER 338 - OCCUPATIONAL SAFETY AND HEALTH OF EMPLOYEES 338.153 Applications for variances -- Procedure for granting -- Temporary order.
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338.153 Applications for variances -- Procedure for granting -- Temporary
order.
(1)
(2)
Any affected employer may apply to the commissioner for a rule or order for a
variance from a standard promulgated under this chapter. Affected employees
shall be given notice of each such application and an opportunity to participate
in a hearing. The commissioner shall issue such rule or order if he or she
determines on the record, after opportunity for an inspection where appropriate
and a hearing, that the proponent of the variance has demonstrated by a
preponderance of the evidence that the conditions, practices, means, methods,
operations, or processes used or proposed to be used by an employer will
provide employment and places of employment to his or her employees which
are as safe and healthful as those which would prevail if he or she complied
with the standard. The rule or order so issued shall prescribe the conditions the
employer must maintain, and the practices, means, methods, operations, and
processes which he or she must adopt and utilize to the extent they differ from
the standard in question. Such a rule or order may be modified or revoked
upon application by an employer, employees, or by the commissioner of his or
her own motion, in the manner prescribed for its issuance under this
subsection at any time after six (6) months from its issuance.
(a) Any employer may apply to the commissioner for a temporary order
granting a variance from a standard or any provision thereof promulgated
under this section. Such temporary order shall be granted only if the
employer files an application which meets the requirements of paragraph
(b) of this subsection and establishes that:
1.
He or she is unable to comply with the 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;
2.
He or she is taking all available steps to safeguard his or her
employees against the hazards covered by the standard; and
3.
He or she has an effective program for coming into compliance with
the standard as quickly as practicable.
Any temporary order issued under this subsection shall prescribe the
practices, means, methods, operations, and processes which the
employer must adopt and use while the order is in effect and state in
detail his or her program for coming into compliance with the standard.
Such a temporary order may be granted only after notice to employees
and an opportunity for a hearing; provided, that the commissioner may
issue one (1) interim order to be effective until a decision is made on the
basis of the hearing. No temporary order may be in effect for longer than
the period needed by the employer to achieve compliance with the
standard or one (1) year, whichever is shorter, except that such an order
may be renewed not more than twice:
1.
So long as the requirements of this subsection are met; and
2.
If an application for renewal is filed at least ninety (90) days prior to
the expiration date of the order. No interim renewal of an order may
(b)
(c)
remain in effect for longer than one hundred eighty (180) days.
An application for a temporary order under this subsection shall contain:
1.
A specification of the standard or portion thereof from which the
employer seeks a variance;
2.
A representation by the employer, supported by representations
from qualified persons having firsthand knowledge of the facts
represented, that he or she is unable to comply with the standard or
portion thereof and a detailed statement of the reasons therefor;
3.
A statement of the steps he or she has taken and will take (with
specific dates) to protect employees against the hazard covered by
the standard;
4.
A statement of when he or she expects to be able to comply with the
standard and what steps or she he has taken and what steps he or
she will take (with dates specified) to come into compliance with the
standard; and
5.
A certification that he or she has informed his or her employees of
the application by giving a copy thereof to their authorized
representative, 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,
and by other appropriate means. A description of how employees
have been informed shall be contained in the certification. The
information to employees shall also inform them of their right to
petition the commissioner for a hearing.
The commissioner is authorized to grant a variance from any standard or
portion thereof whenever he or she determines that such variance is
necessary to permit an employer to participate in an experiment approved
by him or her designed to demonstrate or validate new and improved
techniques to safeguard the health or safety of workers.
Effective:July 15, 2010
History: Amended 2010 Ky. Acts ch. 24, sec. 1762, effective July 15, 2010. -Amended 1984 Ky. Acts ch. 414, sec. 20, effective July 13, 1984. -- Created
1974 Ky. Acts ch. 311, sec. 2.
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