34A-6-202 - Standards -- Procedure for issuance, modification, or revocation by division -- Emergency temporary standard -- Variances from standards -- Statement of reasons for administrator's act - Utah Statutes

34A-6-202. Standards -- Procedure for issuance, modification, or revocation bydivision -- Emergency temporary standard -- Variances from standards -- Statement ofreasons for administrator's actions -- Judicial review -- Priority for establishing standards.
(1) (a) The division, as soon as practicable, shall issue as standards any nationalconsensus standard, any adopted federal standard, or any adopted Utah standard, unless itdetermines that issuance of the standard would not result in improved safety or health.
(b) All codes, standards, and rules adopted under Subsection (1)(a) shall take effect 30days after publication unless otherwise specified.
(c) If any conflict exists between standards, the division shall issue the standard thatassures the greatest protection of safety or health for affected employees.
(2) The division may issue, modify, or revoke any standard as follows:
(a) (i) Whenever the administrator determines upon the basis of information submitted inwriting by an interested person, a representative of any organization of employers or employees,a nationally recognized standards-producing organization, the Department of Health, or a stateagency or political subdivision, or on information developed by the division or otherwiseavailable, that a rule should be promulgated to promote the objectives of this chapter, theadministrator may request recommendations from the advisory council.
(ii) The administrator shall provide the advisory council with proposals, together with allpertinent factual information developed by the division, or otherwise available, including theresults of research, demonstrations, and experiments.
(iii) The advisory council shall submit to the administrator its recommendationsregarding the rule to be promulgated within a period as prescribed by the administrator.
(b) The division shall publish a proposed rule issuing, modifying, or revoking anoccupational safety or health standard and shall afford interested parties an opportunity to submitwritten data or comments as prescribed by Title 63G, Chapter 3, Utah AdministrativeRulemaking Act. When the administrator determines that a rule should be issued, the divisionshall publish the proposed rule after the submission of the advisory council's recommendations orthe expiration of the period prescribed by the administrator for submission.
(c) The administrator, in issuing standards for toxic materials or harmful physical agentsunder this subsection, shall set the standard which most adequately assures, to the extent feasible,on the basis of the best available evidence, that no employee will suffer material impairment ofhealth or functional capacity even if the employee has regular exposure to the hazard during anemployee's working life. Development of standards under this subsection shall be based uponresearch, demonstrations, experiments, and other information deemed appropriate. In addition tothe attainment of the highest degree of health and safety protection for the employee, otherconsiderations shall be the latest available scientific data in the field, the feasibility of thestandards, and experience under this and other health and safety laws. Whenever practicable, thestandard shall be expressed in terms of objective criteria and of the performance desired.
(d) (i) Any employer may apply to the administrator for a temporary order granting avariance from a standard issued under this section. Temporary orders shall be granted only if theemployer:
(A) files an application which meets the requirements of Subsection (2)(d)(iv);
(B) establishes that the employer is unable to comply with a standard by its effective datebecause of unavailability of professional or technical personnel or of materials and equipmentneeded for compliance with the standard or because necessary construction or alteration of

facilities cannot be completed by the effective date;
(C) establishes that the employer is taking all available steps to safeguard the employer'semployees against hazards; and
(D) establishes that the employer has an effective program for compliance as quickly aspracticable.
(ii) Any temporary order shall prescribe the practices, means, methods, operations, andprocesses which the employer must adopt and use while the order is in effect and state in detailthe employer's program for compliance with the standard. A temporary order may be grantedonly after notice to employees and an opportunity for a public hearing; provided, that theadministrator may issue one interim order effective until a decision is made after public hearing.
(iii) A temporary order may not be in effect longer than the period reasonably required bythe employer to achieve compliance. In no case shall the period of a temporary order exceed oneyear.
(iv) An application for a temporary order under Subsection (2)(d) shall contain:
(A) a specification of the standard or part from which the employer seeks a variance;
(B) a representation by the employer, supported by representations from qualifiedpersons having first-hand knowledge of the facts represented, that the employer is unable tocomply with the standard or some part of the standard;
(C) a detailed statement of the reasons the employer is unable to comply;
(D) a statement of the measures taken and anticipated with specific dates, to protectemployees against the hazard;
(E) a statement of when the employer expects to comply with the standard and whatmeasures the employer has taken and those anticipated, giving specific dates for compliance; and
(F) a certification that the employer has informed the employer's employees of theapplication by:
(I) giving a copy to their authorized representative;
(II) posting a statement giving a summary of the application and specifying where a copymay be examined at the place or places where notices to employees are normally posted; and
(III) by other appropriate means.
(v) The certification required under Subsection (2)(d)(iv) shall contain a description ofhow employees have been informed.
(vi) The information to employees required under Subsection (2)(d)(v) shall inform theemployees of their right to petition the division for a hearing.
(vii) The administrator is authorized to grant a variance from any standard or some partof the standard when the administrator determines that it is necessary to permit an employer toparticipate in a research and development project approved by the administrator to demonstrateor validate new and improved techniques to safeguard the health or safety of workers.
(e) (i) Any standard issued under this subsection shall prescribe the use of labels or otherforms of warning necessary to ensure that employees are apprised of all hazards, relevantsymptoms and emergency treatment, and proper conditions and precautions of safe use orexposure. When appropriate, a standard shall prescribe suitable protective equipment and controlor technological procedures for use in connection with such hazards and provide for monitoringor measuring employee exposure at such locations and intervals, and in a manner necessary forthe protection of employees. In addition, any such standard shall prescribe the type andfrequency of medical examinations or other tests which shall be made available by the employer,

or at the employer's cost, to employees exposed to hazards in order to most effectively determinewhether the health of employees is adversely affected by exposure. If medical examinations arein the nature of research as determined by the division, the examinations may be furnished atdivision expense. The results of such examinations or tests shall be furnished only to thedivision; and, at the request of the employee, to the employee's physician.
(ii) The administrator may by rule make appropriate modifications in requirements forthe use of labels or other forms of warning, monitoring or measuring, and medical examinationswarranted by experience, information, or medical or technological developments acquiredsubsequent to the promulgation of the relevant standard.
(f) Whenever a rule issued by the administrator differs substantially from an existingnational consensus standard, the division shall publish a statement of the reasons why the rule asadopted will better effectuate the purposes of this chapter than the national consensus standard.
(g) Whenever a rule, standard, or national consensus standard is modified by thesecretary so as to make less restrictive the federal Williams-Steiger Occupational Safety andHealth Act of 1970, the less restrictive modification shall be immediately applicable to thischapter and shall be immediately implemented by the division.
(3) (a) The administrator shall provide an emergency temporary standard to takeimmediate effect upon publication if the administrator determines that:
(i) employees are exposed to grave danger from exposure to substances or agentsdetermined to be toxic or physically harmful or from new hazards; and
(ii) that the standard is necessary to protect employees from danger.
(b) An emergency standard shall be effective until superseded by a standard issued inaccordance with the procedures prescribed in Subsection (3)(c).
(c) Upon publication of an emergency standard the division shall commence aproceeding in accordance with Subsection (2) and the standard as published shall serve as aproposed rule for the proceedings. The division shall issue a standard under Subsection (3) nolater than 120 days after publication of the emergency standard.
(4) (a) Any affected employer may apply to the division for a rule or order for a variancefrom a standard issued under this section. Affected employees shall be given notice of eachapplication and may participate in a hearing. The administrator shall issue a rule or order if theadministrator determines on the record, after opportunity for an inspection where appropriate anda hearing, that the proponent of the variance has demonstrated by a preponderance of theevidence that the conditions, practices, means, methods, operations, or processes used orproposed to be used by an employer will provide employment and a workplace to the employer'semployees that are as safe and healthful as those which would prevail if the employer compliedwith the standard.
(b) The rule or order issued under Subsection (4)(a) shall prescribe the conditions theemployer must maintain, and the practices, means, methods, operations and processes that theemployer must adopt and use to the extent they differ from the standard in question.
(c) A rule or order issued under Subsection (4)(a) may be modified or revoked uponapplication by an employer, employees, or by the administrator on its own motion, in the mannerprescribed for its issuance under Subsection (4) at any time after six months from its issuance.
(5) The administrator shall include a statement of reasons for the administrator's actionswhen the administrator:
(a) issues any code, standard, rule, or order;

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(b) grants any exemption or extension of time; or
(c) compromises, mitigates, or settles any penalty assessed under this chapter.
(6) Any person adversely affected by a standard issued under this section, at any timeprior to 60 days after a standard is issued, may file a petition challenging its validity with thedistrict court having jurisdiction for judicial review. A copy of the petition shall be served uponthe division by the petitioner. The filing of a petition shall not, unless otherwise ordered by thecourt, operate as a stay of the standard. The determinations of the division shall be conclusive ifsupported by substantial evidence on the record as a whole.
(7) In determining the priority for establishing standards under this section, the divisionshall give due regard to the urgency of the need for mandatory safety and health standards forparticular industries, trades, crafts, occupations, businesses, workplaces or work environments. The administrator shall also give due regard to the recommendations of the Department of Healthabout the need for mandatory standards in determining the priority for establishing the standards.

Amended by Chapter 382, 2008 General Session