§ 95-132. Variances. - North Carolina Statutes

§95‑132.  Variances.

(a)        TemporaryVariances. –

(1)        The Commissioner mayupon written application by an employer issue an order granting such employer atemporary variance from standards adopted by this Article or promulgated by theCommissioner under this Article. Any such order shall prescribe the practices,means, methods, operations and processes which the employer must adopt or usewhile the variance is in effect and state in detail a program for coming intocompliance with the standard.

(2)        An application for atemporary variance shall contain all information required as enumerated in 29C.F.R. 1905.10(b) which is hereby incorporated by reference, as if herein fullyset out.

(3)        Upon receipt of anapplication for an order granting a temporary variance, the Commissioner towhom such application is addressed may issue an interim order granting such atemporary variance, for the purpose of permitting time for an orderlyconsideration of such application. No such interim order may be effective forlonger than 180 days.

(4)        Such a temporaryvariance may be granted only after notice to employees and interested partiesand opportunity for hearing. The temporary variance may be for a period of nolonger than required to achieve compliance or one year, whichever is shorter,and may be renewed only once. Application for renewal of a variance must befiled in accordance with provisions in the initial grant of the temporaryvariance.

(5)        An order granting atemporary variance shall be issued only  if the employer establishes

a.         (i) That he isunable to comply with the standard by the effective date because ofunavailability of professional  or technical personnel or materials andequipment required or necessary construction or alteration of facilities ortechnology, (ii) that all available steps have been taken to safeguard hisemployees against the hazards covered by the standard, and (iii) that he has aneffective program for coming into compliance with the standard as quickly aspracticable, or

b.         That he is engagedin an experimental program as described in subsection (c) of this section ashereinafter stated.

(b)        PermanentVariances. –

(1)        Any affectedemployer may apply to the Commissioner for a rule or order for a permanentvariance from a standard promulgated under this section. Affected employeesshall be given notice of each such application and an opportunity toparticipate in a hearing. The Commissioner shall issue such rule or order if hedetermines on the record, after opportunity for an inspection where appropriateand a hearing, that the proponent of the variance has demonstrated by apreponderance of the evidence that the conditions, practices, means, methods,operations, or processes used or proposed to be used by an employer willprovide employment and places of employment to his employees which are as safeand healthful as those which would prevail if he complied with the standard.

(2)        The rule or order soissued shall prescribe the conditions the employer must maintain, and thepractices, means, methods, operations, and processes which he must adopt andutilize to the extent they differ from the standard in question.

(3)        Such a rule or ordermay be modified or revoked upon application by an employer, employees, or bythe Commissioner on his own motion, in the manner prescribed for its issuanceunder this subsection at any time after six months from its issuance.

(c)        ExperimentalVariances. – The Commissioner is authorized to grant a variance from anystandard or portion thereof whenever he determines that such variance isnecessary to permit an employer to participate in an experiment approved by himdesigned to demonstrate or validate new and improved techniques to safeguardthe health or safety of workers. (1973, c. 295, s. 7; 1997‑456,s. 27.)