Wyo. Code R. 053-0014-5
OSHA - Practice & Procedure
Chapter 5: Variances
Effective Date: 01/07/2004 to Current
Rule Type: Current Rules & Regulations
Reference Number: 053.0014.5.01072004
(a) Authority. The authority for variances is provided in the Act at W.S.27-11-111.
(b) Effect of Variances. All variances granted under this Chapter shall be in effect only from the date, stated in the variance. No variance from a rule, regulation or standard may be issued to an employer for which a Citation and Notification of Penalty is pending, or has been received by that employer until the completion of any and all proceedings concerning the Citation and Notification of Penalty.
(c) Public Notice. Upon granting a variance under this Chapter, the Department shall give notice through the public media which states the 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 legible and each application or other paper filed under this Chapter shall bear the original signature of the person filing it, his attorney, or any other authorized representative.
(a) Application for variance. Any employer, or class of employers, desiring a variance from a rule, regulation or standard, or portion thereof, authorized by W.S. 27-11-111, may file a written application containing the information specified in paragraph (b) of this section with the Program Manager.
(b) Contents. An application filed for a permanent or temporary variance pursuant to paragraph (a) of this subsection shall include:
(i) The name and address of the applicant;
(ii) The address of the place or places of employment involved;
(iii) A statement that the applicant has informed his affected employees of the application by giving a copy thereof to their authorized representative, or 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 may be examined and information concerning the employee's right to petition the Commission or Department for a hearing, and by other appropriate means.
(c) Additional contents - Permanent variance.
(i) A description of the conditions, practices, means, methods, operations, or processes used or proposed to be used by the applicant;
(ii) 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;
(d) Additional contents - Temporary variance.
(i) A specification of the rule, regulation or standard, or portion thereof, from which the applicant seeks a variance;
(ii) A written statement by the applicant, supported by written statements from a qualified individual(s) 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, and a detailed statement of the reasons for being unable to comply;
(iii) 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;
(iv) 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;
(v) A statement of facts to establish that the applicant is unable to comply with the rule, regulation or 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 rule, regulation or standard or because of necessary construction or alteration of facilities cannot be completed by the effective date;
(vi) A statement that the applicant is taking all available steps to safeguard his employees against the hazards covered by the rule, regulation or standard and he has an effective program for coming into compliance with the standard as quickly as practicable.
(e) Interim Order.
(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 variance filed previously or concurrently. An application for an interim order shall include statements of fact and arguments as to why the order should be granted. The Commission or the Program Manager shall rule upon the application for an interim order based on the facts contained within the application.
(ii) Denial of application. If an application filed pursuant to subparagraph (i) of this paragraph is denied, the applicant shall be given prompt notice of the denial, which shall include, a brief statement of the grounds for denial.
(iii) 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 variance.
(a.) Amendment or repeal.
(i) An affected employer or an affected employee may apply in writing to the Commission or the Program Manager for an amendment or repeal of a variance issued under W.S.27-11-111. The application shall contain:
(A) The name and address of the applicant;
(B) A description of the relief 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;
(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.
(ii) The Commission may on its own motion proceed to amend or repeal a variance issued under W.S.27-11-111. In such event, the Program Manager shall 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 W.S.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.
(i) If an application filed pursuant to Section 2. of this Chapter does not conform to this Section, the Commission or the Program Manager shall deny the application.
(ii) Prompt notice of the denial of an application shall be given applicant.
(iii) Notice of denial shall include, or be accompanied by, a brief statement of the grounds for denial.
(iv) A denial of an application pursuant to this Section shall be without prejudice to the filing of another application.
(b) Successful applications.
(i) If an application has not been denied pursuant to subsection (a) of this Section, the Program Manager shall publish 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 requests for hearing shall be governed by the Wyoming Administrative Procedure Act.