09.12.20.17

.17 Variances.

A. Effect of Variance. A variance granted under the Act and regulations adopted under the Act has only future effect.

B. Temporary Variance.

(1) Application.

(a) An affected employer seeking a temporary variance shall file with the Commissioner, or the Commissioner's authorized representative, an application for variance before the effective date of the regulation or part of a regulation for which the temporary variance is sought.

(b) In addition to the requirements of §5-320 of the Act, an application for temporary variance shall be in writing and shall specify:

(i) The name and address of the applicant;

(ii) The address of each place of employment for which a variance is sought;

(iii) If the applicant seeks a hearing on the application, a request for hearing;

(iv) A statement of the facts the applicant would show to establish that the applicant is unable to comply with a regulation by its effective date because necessary professional or technical personnel or material and equipment are unavailable, or necessary construction or alteration of facilities cannot be completed by the effective date; and

(v) A description of how the employer provided the notice required by §5-321(a) of the Act.

(2) Interim Order.

(a) An applicant for an order for temporary variance may also request an interim order of variance.

(b) A request for interim order may include a statement of facts and arguments as to why an interim order should be granted.

(c) The Commissioner may rule ex parte on an application for interim order.

(d) If the Commissioner grants an interim order, the Commissioner shall:

(i) Serve the order on the applicant and each other party; and

(ii) Require as a condition of the order that the applicant give notice of the interim order to affected employees by the same means used to inform employees of the application for variance.

(e) If the Commissioner denies the interim order, the Commissioner shall:

(i) Give prompt notice of the denial; and

(ii) Provide a brief statement of the grounds for the denial.

C. Permanent Variance. An application for permanent variance shall be in writing and shall specify:

(1) The name and address of the applicant;

(2) The address of each place of employment for which a variance is sought;

(3) If the applicant seeks a hearing on the application, a request for hearing;

(4) A description of the conditions, means, methods, practices, processes, or operations used or proposed to be used by the applicant;

(5) A statement showing how the conditions, means, methods, practices, processes, or operations used or proposed to be used would make employment and places of employment at least as safe and healthful for employees as they would be if the applicant complied with the regulation or standard from which the permanent variance is sought;

(6) A description of how the employer provided the notice required by §5-321(b) of the Act; and

(7) A certification that the employer has informed its employees of the application by:

(a) Giving a copy of the application for permanent variance to its employees or their authorized representative,

(b) Posting the application, or a statement summarizing the application and specifying where a copy may be examined, at each place where notices to employees normally are posted, and

(c) Other appropriate means.

D. Notice of Application for Variance.

(1) Upon receipt of a proper application for variance, the Commissioner shall publish in the Maryland Register a notice of the filing of the application.

(2) The notice shall:

(a) Accurately summarize the application;

(b) Specify the regulation or part of a regulation for which a variance is requested;

(c) Invite interested persons to submit, within a specified period of time, written data or recommendations regarding the application; and

(d) Inform affected employers, employees, and interested persons affected by the application of the right to request a hearing on the application.

E. Modification and Revocation.

(1) Application. An application filed by an affected employer or employee for modification or revocation of a permanent variance shall be in writing and shall specify:

(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 seeks a hearing on the application, a request for hearing;

(e) If the applicant is an employer, a certification that the employer has informed its affected employees of the application as required by this regulation; and

(f) If the applicant is an affected employee, a certification that the employee has furnished a copy of the application to the employer.

(2) The Commissioner may modify or revoke a permanent variance at any time, on the Commissioner's own initiative and after a hearing, after:

(a) Informing the affected employer and employees of the Commissioner's intention and of their right to request a hearing; and

(b) Affording affected employers and employees an opportunity to submit written data or arguments regarding the proposal.