Occupational Safety and Health Standards Board


Description of variance procedures

Table of contents

I.Introduction and background

  1. The standards board
  2. Other units within the Cal/OSHA Program

II.Applying for a variance

  1. Application
    1. Who may apply?
    2. How does one apply?
  2. Applicant obligations

III. The variance process

  1. Application processing
  2. The hearing
  3. The proposed decision
  4. The standards board's action on the proposed decision
  5. Petition for rehearing
  6. Judicial review

IV. Variance application checklist

V. Labor code sections 143-143.2, 146, 147

VI. Board regulations - Title 8, California code of regulations, sections 403-427.4

VII. Alternatives to applying for a variance


I. Introduction and background


A. The standards board

The California Occupational Safety and Health Standards Board (Board) was created by the Legislature in 1973. The standards board consists of seven (7) members appointed by the Governor. Two members are selected from labor, two members from management, one member from the general public, one member from occupational health, and one member from occupational safety. The administration of the standards board is delegated by the Chairperson of the Board to an Executive Officer, who is selected by the members of the Board and serves at their pleasure.

The standards board:

1. adopts occupational safety and health regulations;

2. considers petitions suggesting new or revised regulations proposed by interested person(s) concerning any area of occupational safety and health;

3. grants permanent variances from occupational safety and health regulations; and

4. acts as a review body for any employer or other person adversely affected by the granting or denial of a temporary variance by the Division of Occupational Safety and Health.

B. Other units within the Cal/OSHA Program

The Division of Occupational Safety and Health (Division) enforces the health and safety regulations adopted by the standards board. The Occupational Safety and Health Appeals Board functions as the judicial branch, resolving disputes arising out of the enforcement of Cal/OSHA regulations by the Division. The Cal/OSHA Consultation Service provides a full range of free consultation services on Cal/OSHA regulations to any employer upon request.


II. Applying for a variance


A. Application

1. Who may apply?

Any employer may apply to the standards board for a permanent variance from an occupational safety and health regulation by demonstrating by a preponderance of the evidence that an alternative program, method, practice, means, device, or process will provide equal or superior safety (Labor Code section 143). For purposes of applying for a variance, elevator owners are considered employers.

2. How does one apply?

An application form is available electronically for the convenience of applicants. Many applicants find the form helpful, because its use typically helps avoid omissions and delays in the processing of the application. The form, however, is not mandatory. If you use the form, please read the instructions accompanying it. Incomplete or inaccurate information will delay processing of the application. Applicants are encouraged to use attachments to fully describe the specifics of the request.

In lieu of using the application form, an applicant may submit a letter or document which contains the specific information required by California Code of Regulations, Title 8, section 411(b). Section VI below addresses the regulations relevant to obtaining a variance. A checklist of the information required in a variance application is also included here as section IV.

To obtain a copy of the application form in PDFwpe7.jpg (740 bytes) format click here.

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To have an application mailed to you, please call the standards board office at (916) 274-5721.  

Completed applications must be submitted to the standards board at 2520 Venture Oaks Way, Suite 350, Sacramento, California, 95833.

B. Applicant obligations

Board regulations impose several obligations on applicants for a variance. Title 8, sections 407.2 and 411, impose the following obligations on applicants:

1. Inform affected employees of the application; and

2. Inform affected employees of their right to party status, to petition the standards board for a hearing, and that all pleadings are available for inspection and copying at a reasonable time.

Refer directly to sections 407.2 and 411 for the specific obligations an applicant must satisfy.


III. The variance process


The following is intended to be a general outline of the variance process before the Occupational Safety and Health Standards Board. If additional information is needed or desired, please contact the standards board's office.

A. Application processing

The standards board staff will review an application to determine whether it contains all the information required by section 411(b). Staff may request more information from an applicant if required information is lacking.

Following receipt of a complete variance application containing all the required information, standards board staff will docket the application.

The standards board will then send a copy of the application to the Division of Occupational Safety and Health for an evaluation of whether the applicant's proposal provides equivalent safety to that provided by the relevant regulation(s). The evaluation report will contain a recommendation on whether to grant or deny the application. Standards board staff will also prepare an evaluation and recommendation. Both evaluations may include recommended conditions which, in the opinion of the evaluator, would make the applicant's means, methods, operations or practices at least as safe and healthful as if the applicant complied with the regulation(s) in question.

The standards board staff will serve copies of the Division's and the Board staff's evaluations and recommendations on all parties after they are filed with the standards board.

B.The hearing

The standards board may grant variances only after holding a hearing in which evidence is presented on the record.

The Board conducts hearings after employees or employee representatives are properly notified and given an opportunity to appear at the hearing. The average variance hearing requires about one-half hour before a hearing panel consisting of one or two Board members, along with the Board's hearing officer. Some cases involving extremely complex or controversial health or safety issues may run longer.

The standards board recognizes that few applicants or employees have ever attended or taken part in an administrative law proceeding. Therefore, it is the goal of the Board to keep these proceedings as simple as possible so that employers and employees can be self represented. The hearing officer assigned to the case will explain the rules and procedures and will assist the parties to the extent necessary at the hearing. All testimony is taken under oath and all witnesses are subject to cross-examination by the parties of record.

The general hearing procedures are:

1. The applicant will present its case to the hearing panel. In most instances, this presentation should be no longer than five minutes. The hearing officer will ask the hearing panel and parties if there are any questions about the proposal.

2. The Division's representative will present its position regarding the applicant's proposed method of providing equivalent safety. The hearing panel and interested parties will have an opportunity to ask the Division's representative questions about the Division's evaluation and recommendation.

3. The Board's staff will also present testimony regarding his or her evaluation of the variance application. The hearing panel and parties will then have an opportunity to ask questions about the staff's evaluation and recommendation.

4. If the applicant's employees have party status, they or their representative will also participate in this process.

When the hearing panel and the hearing officer determine that the questions have been answered and the evidence has been submitted into the record, the record will be closed. The hearing panel will then direct the hearing officer to prepare a proposed decision. Occasionally, the record may be left open for the submission of additional material requested by the hearing panel.

Should the applicant fail to appear at the scheduled variance hearing, the Board will issue a "Notice of Intent to Dismiss". If the applicant still desires to have a hearing, a response to the notice must be filed with the standards board within ten (10) days of when the notice is served. The case will be re-calendared only if good cause is established for the non-appearance. Failure to reply to a Notice of Intent to Dismiss will result in the Board issuing a "Dismissal Notice" in the matter.

C. The proposed decision

When the hearing is completed, the hearing officer will prepare a proposed written decision on behalf of the hearing panel and send a copy of this proposed decision to the parties who participated in the variance. The staff then schedules the matter for consideration by the entire standards board at one of its regularly scheduled Business Meetings.

D. The standards board's action on the proposed decision

At the Business Meeting, the hearing panel's proposed decision to grant or deny the variance will be adopted or rejected.

No new evidence can be presented to the standards board at the business meeting, and the standards board may consider no evidence that was not presented on the record at the variance hearing.

Parties may, but need not, attend the Business Meeting at which their proposed decision is being considered. Standards board staff will send a notice of the standards board's official action after the Business Meeting.

E. Petition for rehearing

Any party to a variance proceeding has the right under section 427 to petition the standards board for a rehearing of the decision. A petition for rehearing must be filed within twenty (20) days after the decision of the Board has been served upon the parties of record.

A petition for rehearing must be based on one or more of the following grounds:

1. The standards board acted without or in excess of its power.

2. The decision is not supported by substantial evidence.

3. The decision is contrary to law.

The petition for rehearing must state, in detail, the factual or legal basis for the Board to consider in granting the petition for rehearing. A copy of the petition for rehearing must be served upon all parties who have joined in the proceeding at the time the petition was filed with the standards board.

Upon receipt of a petition for rehearing, the standards board may:

1. agree to reconsider the decision;

2. reject outright the petition for rehearing and reaffirm the original decision; or

3. take no action on the petition for thirty (30) days and the petition will automatically be deemed denied.

If the standards board grants the petition for rehearing, the Board may rehear the case itself or refer the case to its hearing officer. The Board may rehear all pertinent parts of the record of the prior hearing and such additional evidence or arguments as may be presented in the petition for rehearing.

F. Judicial review

If a party to a variance proceeding determines that it is still aggrieved after the rehearing process, the party may appeal the Board's decision to Superior Court. By statute, the aggrieved party has thirty (30) days after rehearing in which to file a writ of mandamus in the appropriate court.


IV. Variance application checklist


(See California Code or Regulations, Title 8, Chapter 3.5, Section 411(b).)

Please review your application to make sure it contains:


V. Labor code sections 143-143.2, 146, 147


143 Variances: hearings - procedure

(a) Any employer may apply to the board for a permanent variance from an occupational safety and health standard, order, special order, or portion thereof, upon a showing of an alternate program, method, practice, means, device, or process which will provide equal or superior safety for employees.

(b) The board shall issue such variance if it determines on the record, after opportunity for an investigation where appropriate and a hearing, that the proponent of the variance has demonstrated by a preponderance of the evidence that the conditions, practices, means, methods, operations, or processes used or proposed to be used by an employer will provide employment and places of employment to his employees which are as safe and healthful as those which would prevail if he complied with the standard. The variance so issued shall prescribe the conditions the employer must maintain and the practices, means, methods, operations, and processes which he must adopt and utilize to the extent they differ from the standard in question.

(c) The board is authorized to grant a variance from any standard or portion thereof whenever it determines such variance is necessary to permit an employer to participate in an experiment approved by the director designed to demonstrate or validate new and improved techniques to safeguard the health or safety of workers.

(d) A permanent variance may be modified or revoked upon application by an employer, employees, or the division, or by the board on its own motion, in the manner prescribed for its issuance under this section at any time.

143.1 Variance hearings - notice

The board shall conduct hearings on such requests for a permanent variance after employees or employee representatives are properly notified and given an opportunity to appear. All board decisions on permanent variance requests shall be final except for any rehearing or judicial review provided for by law.

143.2 Variance hearings procedure rules: Adoption, amendment, repeal

The board, acting as a whole, may adopt, amend or repeal rules of practice and procedure pertaining to hearings on applications for permanent variances, variance appeals, and other matters within its jurisdiction. All such rules of practice and procedure amendments thereto, or repeal thereof shall be made in accordance with the provisions of Chapter 4.5 (commencing with Section 11371) of Part 1 of Division 3, Title 2 of the Government Code.

146 Variance hearings - rules governing

In the conduct of the hearings related to permanent variances, the board and its representatives are not bound by common law or statutory rules of evidence or by technical or formal rules of procedure but shall conduct the hearings in accordance with Article 8 (commencing w/section 11435.05) of the Chapter 4.5 of Part 1 of Division 3 of Title 2 of, and of Section 11513 of, the Government Code. A full and complete record shall be kept of all proceedings.

147 Proposed standards, variances - evaluated by other departments

The board shall refer to the Division of Occupational Safety and Health for evaluation any proposed occupational safety or health standard or variance from adopted standards received by the board from sources other than the division. The division shall submit a report on the proposed standard or variance within 60 days of receipt thereof.


VI. Board regulations
Title 8, California code of regulations
Sections 403-427.
4


The following are the Board regulations referenced throughout the foregoing general description of the variance process. The regulations will control if there is any discrepancy between the general description of the variance process and the regulations. Copies of these regulations may be obtained by accessing California Code of Regulations, Title 8, Cal/OSHA Standards.

Chapter 3.5 Occupational Safety and Health Standards Board

Subchapter 1. Rules of Procedure for Interim and Permanent Variances, and Appeals from Temporary Variances

Table of contents

Article 1. General

401 Location of Principal Office.

402 Tenses, Gender and Number.

403 Definitions.

404 Computation of Time.

404.1 Late Filing.

405 Hearing Officers.

405.1 Authority of Hearing Officers.

405.2 Standards Board Records Not Subject to Subpoena.

406 Party Status.

406.1 Intervention; Appearance by Nonparties.

407 Service and Notice.

407.1 Proof of Service by Parties.

407.2 Responsibilities of Employers to Notify Employees of Proceedings.

407.3 Responsibilities of Employees to Notify Employers and Other Employees of Proceedings.

Article 2. Applications for interim and/or permanent variance, and Appeals from temporary variance
(Please Note: Interim variances are not availabel)

411 Applications for Variances.

411.1 Denial of Defective Application for Interim and/or Permanent Variance.

411.2 Interim Variances. (Please Note: interim variances are not available)

411.3 Notice of the Granting of an Interim Variance.

411.4 Notice of Denial of Interim Variance.

412 Appeals from Temporary Variances.

412.1 Correction of Defective Appeal from a Temporary Variance.

Article 3. Prehearing Proceedings

415 Referral of Variance Applications and Appeals to the Division.

416 Publication of Variance Applications.

417 Assignment to Hearing Panels.

417.1 Objection to Hearing Panel or Hearing Officer or Board Member.

417.2 Merger of Successive Variance Applications or Appeals.

417.3 Withdrawal of Variance Applications and Appeals.

417.4 Dismissal of Late Appeals.

418 Prehearing Motions.

419 Consolidation of Proceedings.

420 Prehearing Conference.

Article 4. Hearings and Decisions

421 Time and Place of Hearing.

422 Witnesses and Subpoenas.

422.1 Evidence by Affidavit.

423 Conduct of Hearing.

424 Evidence Rules.

424.1 Official and Judicial Notice.

424.2 Continuance of Hearings and Further Hearings.

424.3 Representation at Hearing.

424.4 Exclusion of Witnesses.

424.5 Oral Arguments and Briefs.

425 Judicial Enforcement.

425.1 Witness Fees.

425.2 Default.

426 Decision; Action on Proposed Decision.

426.1 Form of Decision.

426.2 Notice of the Granting of a Permanent Variance or Variance Appeal.

427 Petitions for Re-Hearing.

427.1 Form of Petition for Re-Hearing.

427.2 Proof of Service for Petition for Re-Hearing.

427.3 Re-Hearing.

427.4 Decision on Petition for Re-Hearing.

428 Method of Publication.


VII. Alternatives to applying for a variance


Oftentimes, an employer will apply for a variance because of a citation from the Division of Occupational Safety & Health. If the employer has decided to comply with the cited safety order, but requires time in which to achieve compliance, two alternatives to applying for a variance are available.

The division, under its separate authority, has the discretion to approve long-term extensions of an abatement date prescribed by a citation. The division also may enter into a Memorandum of Understanding or a Letter of Understanding with an employer when all known technical abatement means have been employed, but a particular level of compliance with the safety standard cannot be achieved in what ordinarily would be considered a reasonable time.

Information about these alternatives and eligibility for these alternatives should be pursued directly with the Division.