A. Permanent variances:

1. (1) The department may grant an individual variance from any provision of 11.5.1 NMAC through 11.5.4 NMAC or 11.5.6 NMAC, including any incorporated federal standard, whenever it is found that the proponent of the variance has demonstrated by a preponderance of the evidence, that the conditions, practices, means, methods, operations and processes used by an employer, although not conforming to a regulation, will, in fact, provide protection to the health and safety of the employees to a degree which is equal to or greater than that which is provided by the regulations.

2. (2) Any employer seeking a variance under this section shall do so by filing a written petition with the bureau. Petition forms may be obtained from the bureau. Petitions shall:

   1. (a) state the petitioner’s name and mailing address;
   2. (b) state the date of the petition;
   3. (c) describe the facility or activity for which the variance is sought;
   4. (d) state the address or description of the property upon which the facility or activity is located;
   5. (e) identify the provision, including incorporated federal standard, if applicable, from which the variance is sought;
   6. (f) state in detail the extent to which the petitioner wishes to vary from the provision;
   7. (g) state why the petitioner believes the requested variance will provide protection to the health and safety of the petitioner’s employees to a degree that is equal to or greater than that which is provided by the provision from which variance is sought;
   8. (h) certify that the petitioner’s employees have been informed of the petition, by giving a copy thereof to their authorized representatives; posting a statement giving a summary of the application and specifying where a copy of the petition may be examined, at places where notices to employees are customarily posted (or in lieu of such summary, the posting of the petition), and by other appropriate means;
   9. (i) describe how employees have been informed of the application and of their right to request a hearing before the bureau;
   10. (j) state the name and mailing address of the representatives of the petitioner’s employees, if known; and
   11. (k) be signed by the petitioner, or the petitioner’s attorney or other authorized representative.
3. (3) The petitioner may submit with the petition any relevant documents or material which the petitioner believes would support the petition and may request a hearing, as provided in this section.

B. Temporary variance:

1. (1) The secretary may grant a temporary variance from any provisions of 11.5.1 NMAC through 11.5.4 NMAC or 11.5.6 NMAC, including any incorporated federal standard, if it is found that the proponent of the variance has demonstrated by a preponderance of the evidence that:

   1. (a) the petitioner is unable to comply with the provision by its effective date because of unavailability of professional or technical personnel or because necessary construction or alteration of facilities cannot be completed by the effective date;
   2. (b) the petitioner is taking all available steps to safeguard the petitioner’s employees against the hazards covered by the provision; and
   3. (c) the petitioner has an effective program for coming into compliance with the provision as quickly as practicable.
2. (2) The petition for a temporary variance shall:

3. (a) state the petitioner’s name and mailing address;

   1. (b) state the date of the petition;
   2. (c) describe the facility and activity for which the temporary variance is sought;
   3. (d) identify the provision from which the variance is sought;
   4. (e) describe the extent of current deviation from the provision, including numbers of employees affected;
   5. (f) state the period of time for which the variance is desired;
   6. (g) describe why the petitioner is unable to comply with the provision from which the variance is sought by its effective date;
   7. (h) describe the methods taken to safeguard employees;
   8. (i) show that the petitioner has an effective program for coming into compliance with the provision from which variance is sought;
   9. (j) certify that the petitioner’s employees have been informed of the petition by giving a copy thereof to their authorized representatives, posting a statement giving a summary of the application and specifying where a copy of the petition may be examined, at places where notices to employees are customarily posted (or in lieu of such summary, the posting of the petition), and by other appropriate means;
   10. (k) describe how employees have been informed of the application and of their right to request a hearing before the department; and
   11. (l) contain any request for hearing, as provided in this section.

4. (3) After an opportunity for a hearing, the secretary may issue an order granting a temporary variance. A temporary variance may be effective for one year or for the period needed by the petitioner to come into compliance, whichever is shorter. A temporary variance may be renewed no more than twice provided that:

   1. (a) the application for a renewal must be submitted 90 days before expiration of the temporary variance; and
   2. (b) no renewal may be for more than 180 days.

C. Modification, revocation and renewal of variances:

1. (1) Modification or revocation: The secretary may at any time on his own motion, or upon application by an employer or affected employee after six months have elapsed from the date of issuance of the order granting a temporary or permanent variance, after hearing, modify or revoke such order.

   1. (a) An employer or affected employee (including employee representative) may petition the secretary for a modification or revocation of any variance issued under this section. The petition shall state the petitioner’s name and mailing address; describe the relief sought; state with particularity the grounds for relief; if the petitioner is an employer, certify that the petitioner has informed the affected employees of the petition in the manner described for the original variance request; if the petitioner is an affected employee, certify that a copy of the petition has been furnished to the employer; and request a hearing, as provided in this section.
   2. (b) If the secretary, on his own motion, proceeds to modify or revoke the variance, he shall so notify the affected employer by certified mail and shall take such action as necessary to give actual notice to affected employees. The secretary shall promptly schedule a hearing on the matter and notify the employer and affected employees of the time, date and place of said hearing.
2. (2) Renewal: Any final order for a variance may be renewed or extended as permitted by this section and in the manner prescribed for its issuance.

D. Interim order during variance consideration:

1. (1) An application may be made for an interim order to be effective until a decision is rendered on the application for the variance filed previously or concurrently. An application for an interim order may include statements of fact and arguments as to why the order should be granted. The secretary may rule ex parte upon the application.
2. (2) If an application filed for an interim order is denied, the applicant shall be given prompt notice of the denial which shall include, or be accompanied by, a brief statement of the grounds therefore.
3. (3) If an interim order is granted, a copy of the order including the terms of the order shall be served upon the applicant for the order and other parties. It shall be a condition of the order that the affected employer shall give notice thereof to affected employees by the same means to be used to inform them of an application for a variance.

E. Action on petition:

1. (1) Defective petitions: If a petition does not conform with the requirements of this section, the secretary may deny the petition. Prompt notice of denial of a petition shall be given to the petitioner. A notice of denial shall include, or be accompanied by, a brief statement of the grounds for the denial. Such denial shall be without prejudice to the filing of another or amended petition.

2. (2) Adequate petitions:

   1. (a) If a petition conforms with the requirements of this section, the department shall promptly notify the petitioner and employee representative that the petition has been accepted for review. The notice shall be posted by the employer in the same place and manner as the petition. In addition, the department shall publish notice of the filing of the petition in a newspaper of general circulation in the state. Such notice shall describe the relief requested and shall state the manner in which interested persons may submit data, views or arguments concerning the petition.
   2. (b) The petitioner, any of the petitioner’s employees, or an employee representative may request a hearing on the petition before the department. The request must be made in writing to the secretary within 15 days after the petition has been accepted by the department as being adequate.
   3. (c) Where no timely request for a hearing has been made and the secretary determines that no substantial public interest is involved, the secretary shall promptly investigate the petition and make a decision thereon. The secretary shall notify the employer and the employees or the employee representative of the decision and reasons therefor. The decision shall be posted in the same place and manner as the petition. If the secretary is opposed to the granting of the variance, the petitioner may, within 15 days from receipt of the decision, request a hearing before the secretary. Unless a timely request for hearing is made, the decision of the secretary shall be final.

3. (3) Decisions:

   1. (a) Decisions or orders of the department or secretary shall state the petitioner’s name and mailing address; state the date the order was made; describe the facility or activity for which the variance was sought; state the address or description of the property upon which the facility or activity is located; identify the provision from which the variance was sought; state the nature of the variance requested; state the decision of the department or secretary; describe the conditions the employer must maintain, and the practices, means, methods, operations, and procedures which the employer must adopt and utilize to the extent they differ from the provision from which the variance was sought; state the reasons for the decision; and be signed by the secretary or his authorized representative.
   2. (b) The decision shall be posted by the employer in the same place and manner as the petition.
   3. (c) No variance shall be granted until the department or the secretary has considered the relative interests of the petitioner, his employees, and the general public.
   4. (d) The bureau shall maintain a file of all variance orders. The file shall be open for public inspection subject to the limitations contained in Subsection F of 11.5.1.21 NMAC.

F. Hearings:

1. (1) If a timely request for hearing is made, the department shall, within 30 days after receipt of the request, notify the petitioner and his employees or employee representative by certified mail of the date, time and place of the hearing.
2. (2) The hearing shall be held not less than 10 nor more than 30 days from the date the notice of the hearing is mailed. Where a hearing is being held subsequent to an initial determination by the secretary without hearing, as authorized by Subparagraph (c) of Paragraph (2) of Subsection E of 11.5.1.18 NMAC, the hearing shall be conducted by a department employee who did not participate in the original decision on the petition.
3. (3) A record shall be made at each hearing, the cost of which shall be borne by the department. Transcript cost shall be paid by those persons requesting transcripts. In the hearings, the technical rules of evidence and rules of civil procedure shall not apply, but the hearing shall be conducted so that all relevant views are amply and fairly presented without undue repetition. The hearing officer may require reasonable substantiation of statements or records rendered and may require any view to be stated in writing when the circumstances justify. The hearing officer shall allow all parties to the hearing a reasonable opportunity to submit written and oral evidence and arguments, to examine witnesses and to introduce exhibits. All witnesses shall be subject to questioning by the hearing officer.
4. (4) Based upon the evidence presented at the hearing and the recommendation of the hearing officer, the secretary shall grant the variance, grant the variance subject to conditions, or deny the variance. All actions taken by the secretary shall be by written order within 10 days after the closing of the hearing. The secretary shall send the order to the petitioner by certified mail with a statement of the reasons for his order. A copy of the order shall be mailed to all persons testifying at the hearing, or who request a copy.

G. Multi-state variances: Where action has been taken by the USDOL, pursuant to the federal Occupational Safety and Health Act of 1970, on any temporary or permanent variance request to a federal standard that is identical to a provision of 11.5.1 NMAC through 11.5.4 NMAC or 11.5.6 NMAC such action shall be an authoritative interpretation of an employer’s compliance obligation with regard to the provision, or portion thereof, identical to the federal standard, or portion thereof, affected by the action in the employment or places of employment covered by the variance application.

[8/30/1973, 10/9/1975, 9/3/1978, 4/26/1981, 1/1/1996; 11.5.1.18 NMAC - Rn & A, 11 NMAC 5.1.18, 10/30/2008]