Wyo. Code R. 053-0014-3
OSHA - Practice & Procedure
Chapter 3: Variances
Effective Date: 08/23/1983 to 01/07/2004
Rule Type: Superceded Rules & Regulations
Reference Number: 053.0014.3.08231983
Chapter 3
a. Authority. The authority for variances it provided in the Act as defined in the following:
(1) Section 27-11-111(a) of the Act provides that any person affected by the Act may request a variance to any standard, rule or regulation promulgated under the Act.
(2) Section 27-11-111(b) empowers the Commission or Department to issue temporary variances and sets forth the minimum requirements under which the variance may be issued.
(3) Section 27-11-111(c) empowers the Commission or Department to issue permanent variances and sets forth the requirements under which such permanent variance may be issued.
(4) Section 27-11-111(a)(xiii) provides for Commission powers to consider and grant variances in accordance with the terms and limitations of Section 27-11-111.
(5) Section 27-11-112 charges the Administrator with the duties as delegated by the Commission in the discharge of the responsibilities of his office.
(6) Section 27-11-104(d) provides for amendment or repeal of variances which shall be accomplished by majority vote of the entire membership of the Commission
b. Effect of Variances. All variances issued under this Chapter shall be in effect only from a predetermined future date which shall be stated in the variance. No variance may be issued to an employer from a standard, rule or regulation for which a Notice of Violation or proposed penalty is pending, or has been received by such employer until the completion of any and all proceedings concerning said Notice of Violation or proposed penalty.
c. Public Notice. Upon granting a variance under this Chapter, the Commission or Department shall give notice through the public media which states such final action and specifies the alternative to the rule, regulation or standard permitted by the particular variance.
d. Variance Application. Any application and other supporting papers shall be clearly legible. An original and two copies of any application and accompanying papers shall be filed. The original shall be typewritten. Clear carbon copies or printed or processed copies are acceptable. Each application or other paper filed under this Chapter shall bear the original signature of the person filing the same, or by his attorney, or by any other authorized representative.
a. Temporary variance under Section 27-11-111 of the Act.
(1) Application for variance. Any employer, or class of employers, desiring a temporary variance from a rule, regulation or standard, or portion thereof, authorized by Section 27-11-111 of the Act, may file a written application containing the information specified in paragraph (2) of this subsection and subsection d. of Section 1. of this Chapter with the Administrator of the Occupational Health and Safety Department, Cheyenne, Wyoming 82002.
(2) Contents. An application filed pursuant to paragraph (1) of this subsection shall include:
(a) The name and address of the applicant;
(b) The address of the place or places of employment involved;
(c) A specification of the rule, regulation or standard, or portion thereof, from which the applicant seeks a variance;
(d) A written statement by the applicant, supported by written statements from a qualified individual or individuals having first hand knowledge of the facts represented, that he is unable to comply with the rule, regulation or standard, or portion thereof, by its effective date, because of unavailability of professional or technical personnel or of materials and equipment needed to come into compliance with the rule, regulation or standard or because of necessary construction or alteration of facilities, and a detailed statement of the reasons for being unable to comply:
(e) A statement of the steps the applicant has taken and will take, with specified dates where appropriate, to protect employees against the hazard covered by the rule, regulation or standard;
(f) A statement of when the applicant expects to be able to comply with the rule, regulation or standard and of what steps he has taken and will take, with specific dates where appropriate, to come into compliance with the rule, regulation or standard;
(g) A statement that the applicant has informed his affected 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 and information concerning the employee's right to petition the Commission or Department for a hearing, at the place or places where notices to employees are normally posted, and by other appropriate means.
(3) The length of time allowed for a temporary variance shall be at the discretion of the Commission, the Administrator, or his authorized representative as provided for in Section 27-11-111 of this Act, who shall take into consideration all facts pertaining to the issuance of the temporary variance, except that such temporary variance shall not exceed one (1) year nor be renewed more than two (2) times.
(a) The action on applications for a temporary variance shall be as provided in Section 4. of this Chapter.
(i) Application. An application may also be made for an interim order to be effective until a decision is rendered on the application for the temporary 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 Commission or the Administrator may rule upon the application for an interim order based on the facts contained within the application.
(ii) Notice of denial of application for an interim order. If an application filed pursuant to subparagraph (a) of this paragraph 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 therefor.
(iii) Notice of the grant of an interim order. If an interim order is granted, a copy of the order shall be served upon the applicant. 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 temporary variance.
a. Amendment or repeal.
(1) An affected employer or an affected employee may apply in writing to the Commission or the Administrator of the Occupational Health and Safety Department for an amendment or repeal of a variance issued under Section 27-11-111 of the Act. The Administrator shall promptly (within 3 days) forward the application for amendment or repeal to the Chairman of the Commission for action. The application shall contain:
(a) The name and address of the applicant;
(b) A description of the relief which is sought;
(c) A statement setting forth with particularity the grounds for the relief;
(d) If the applicant is an employer, a certification that the applicant has informed his affected employees of the application by:
(i) Giving a copy thereof to their authorized representative;
(ii) Posting at the place or places where notices to employees are normally posted, a statement giving a summary of the application and specifying where a copy of the full application may be examined (or in lieu of the summary, posting the application itself):
(iii) Notifying employees of the right to petition the Commission or the Department for a hearing: and
(iv) By other appropriate means.
(e) If the applicant is an affected employee, a certification that a copy of the application has been furnished to the employer: and
(f) Any request for a hearing, as provided in this Chapter.
(2) The Commission may on its own motion proceed to amend or repeal a variance issued under Section 27-11-111 of the Act. In such event, the Administrator shall be directed by the Commission to inform the affected employer and employees of their right to request a hearing, and shall take any other action as may be appropriate to give actual notice to affected employees. Any request for a hearing shall include a short and plain statement of:
(a) How the proposed amendment or repeal would affect the requesting party; and
(b) What the requesting party would seek to show on the subjects or issues involved.
b. Renewal. Any temporary variance issued under Section 27-11-111 of the Act may be renewed or extended as permitted by the applicable Section and in the manner prescribed for its issuance.
a. Defective applications.
(1) If an application filed pursuant to Section 2.a.(1), Section 4.b.(1), or Section 3. of this Chapter does not conform to the applicable Section, the Commission or the Administrator may deny the application.
(2) Prompt notice of the denial of an application shall be given to the applicant.
(3) 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 Section shall be without prejudice to the filing of another application.
b. Permanent variance under 27-11-111 of the Act.
(1) Application for permanent variance. Any employer, or class of employers, desiring a permanent variance authorized by Section 27-11-111 of the Act may file a written application containing the information specified in paragraph (2) of this subsection with the Commission or the Administrator of the Occupational Health and Safety Department, Cheyenne, Wyoming 82002.
(2) Contents. An application filed pursuant to paragraph (1) of this subsection shall include;
(a) The name and address of the applicant; (b) The address of the place or places of employment involved; (c) A description of the conditions, practices, means, methods,
operations, or processes used or proposed to be used by the applicant:
(d) 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 rule, regulation or standard from which a variance is sought:
(e) A certification that the applicant has informed his 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.
(f) A description of how employees have been informed of the application and of their right to petition the Administrator or the Commission for a hearing.
1(3) Interim order.
(a) Application. An application may also be made for an interim order to be effective until a decision is rendered on the application for the permanent 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 Commission or the Administrator may rule upon the application for an interim order based on the facts as contained within the application.
(b) Notice of denial of application for an interim order. If an application filed pursuant to subparagraph (a) of this paragraph 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 thereof.
(c) Notice of the grant of an interim order. If an interim order is granted, a copy of the order shall be served upon the applicant for the order. 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 permanent variance.
(4) Modification and Revocation.
(a) A permanent variance may be modified or revoked upon application by an employer, employees, or by the Commission. Administrator or his authorized representative, on his own motion, in the manner prescribed for its issuance under this subsection at any time after six (6) months from its issuance.
c. Adequate applications.
(1) If an application has not been denied pursuant to subsection a. of this Section, the Commission or the Administrator shall cause to be published through the public media, notice of the filing of an application which shall include:
(a) The terms, or an accurate summary of the application;
(b) A reference to the section of the Act under which the application has been filed;
(c) An invitation to interested individuals to submit within a stated period of time written data, views or arguments regarding the application; and
(d) Information to affected employers and employees of any right to request a hearing. All action pursuant to hearings shall be governed by the Wyoming Administrative Procedure Act.
d. Notice of the Grant of a Variance. (Temporary or Permanent). If a variance is granted, a copy of the order shall be served upon the applicant and the Commission or the Administrator shall cause to be published through the public media, notice of the grant of the variance. 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.