Section 50-9-16 - Variances; temporary variances. - New Mexico Statutes

50-9-16. Variances; temporary variances.

A.     The department may grant an individual variance from any regulation adopted pursuant to the Occupational Health and Safety Act [50-9-1 NMSA 1978] setting health or safety standards whenever it is found by a preponderance of the evidence that the conditions, practices, means, methods, operations or processes used by the petitioner will provide employment and places of employment to his employees which are as safe and healthful as those that would prevail if he complied with the existing regulation.   

B.     No variance shall be granted until the department has considered the relative interests of the petitioner, his employees and the general public. The order so issued shall describe the conditions the employer must maintain and the practices, means, methods, operations and procedures which he must adopt and utilize to the extent they differ from the regulation in question. The secretary may at any time on his own motion, or upon application by an employer or employee after six months have elapsed from the date of issuance of the order granting a variance, after a hearing, modify or revoke such order.   

C.     A petitioner for a variance shall file a petition with the department in the manner prescribed by regulation.  The department shall give the affected employees prompt notice of the application for a variance and an opportunity to request a hearing.  When properly filed, the secretary shall promptly investigate the petition and provide for the disposition thereof.   

D.     The department may grant the variance without hearing when no hearing has been requested by either employees or employer and if it deems that no substantial public interest is involved. If the department is opposed to the granting of the variance, then a hearing shall be held upon the request of the petitioner.  A record shall be made of the hearing.  In the hearing, the burden of proof shall be upon the petitioner.   

E.     Any employer may apply to the department for a temporary order granting a variance from a regulation promulgated under the Occupational Health and Safety Act by submitting a petition to the department in the manner prescribed by regulation.  A temporary variance may be granted only if the employer establishes:   

(1)     that he is unable to comply with a regulation by its effective date because of unavailability of professional or technical personnel or of materials and equipment needed to come into compliance with the regulation or because necessary construction or alteration of facilities cannot be completed by the effective date;   

(2)     that he is taking all available steps to safeguard his employees against the hazards covered by the regulation; and   

(3)     that he has an effective program for coming into compliance with the regulation as quickly as practicable.   

F.     Any temporary order issued under this section 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 program for coming into compliance with the regulation.  Such a temporary variance may be granted only after notice to employees and an opportunity for a hearing. Provided that the department may issue one interim order to be effective until a decision is made or a decision rendered if a hearing is requested.  No temporary variance may be in effect for longer than the period needed by the employer to achieve compliance with the regulation or one year, whichever is shorter, except that such variance may be renewed not more than twice, so long as the requirements of this subsection are met and if an application for renewal is filed at least ninety days prior to the expiration date of the variance.  No renewal of a temporary variance may remain in effect for longer than one hundred eighty days.   

G.     The department is authorized to grant a variance from any regulation whenever it determines that such a variance is necessary to an employer to participate in an experiment approved by the department designated to demonstrate or validate new and improved techniques to safeguard the health or safety of workers.   

H.     The department shall keep an appropriately indexed record of all variances granted under this section.  The record shall be open for public inspection.