454 CMR, § 25.05

Current through Register 1531, September 27, 2024

Section 25.05 - Compliance

(1) In exercising the authority set forth in 454 CMR 25.00, the Department may take action and shall follow the procedures set forth in 454 CMR 29.00: Civil Administrative Penalties.

(2) If the Department determines that an employer has violated a provision of 454 CMR 25.00, the Department shall, within 180 days of the initiation of the inspection opening conference, issue to the employer a written Order to Correct, which shall include:

(a) A description of the nature of each violation, including a reference to the provision of the section, standard, regulation, or order alleged to have been violated;

(b) the corrective action(s) to abate the violations; and

(c) an abatement date for each violation.

(3) The Department shall provide written notification of any Order to Correct to the appropriate governing official, public administrator, agency head, and/or personnel director.

(4) An employer may contest or appeal any Order or other ruling of the Department pursuant to M.G.L. c. 149, § 9. For purposes of any such appeal, references to "associate commissioners" in M.G.L. c. 149, § 9 shall mean the Board of Occupational Safety and Health.

(5) The Attorney General may bring a civil action for declaratory or injunctive relief to enforce any order of the Department or the Attorney General.

(6) The Director shall have the authority to make reasonable rules, requirements, or orders necessary to prevent accidents and injuries to ensure the safe working environments consistent with 454 CMR 25.00. The Director shall make all rules, requirements, and orders publicly known to affected employees and employers. The Director shall post all rules, requirements, and orders to the Department's website.

(7)Variances. If granted, a variance permits a public sector employer or class of employers to depart from the requirements of 454 CMR 25.00 under specified conditions.

(a) Any employer may apply to the Director for an order granting a variance from a standard promulgated under 454 CMR 25.00. Affected employees shall be given notice of each such application and an opportunity to participate in any hearing.

1. The Director shall issue an order granting a temporary variance if the Director determines on the record, after a hearing and, where appropriate, an inspection, that the proponent of a variance has demonstrated that the proponent is unable to comply with a standard by its effective date because of unavailability of professional or technical personnel or of materials and equipment needed to come into compliance with the standard, or because necessary construction or alteration of facilities cannot be completed by the effective date; is taking all available steps to safeguard its employees against the hazards covered by the standard; and has an effective program for coming into compliance with the standard as quickly as practicable. Except as otherwise provided in 454 CMR 25.05(7), the Department shall follow the applicable provisions of 29 CFR 1905, including 29 CFR 1905.10, where applicable to public employers under the authority of the Department.

2. The Director shall issue an order granting a permanent variance if the Director determines on the record, after a hearing and, where appropriate, an inspection, 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 which are as safe and healthful as those which would prevail if the employer complied with the standard. Except as otherwise provided in 454 CMR 25.05(7),, the Department shall follow the applicable provisions of 29 CFR Part 1905, including 29 CFR 1905.11, where applicable to public employers under the authority of the Department.

3. Any variance order issued under 454 CMR 25.05(7), may be summarily revoked by the Director on the Director's own motion or modified or revoked by the Director upon application by an employer or employee in the manner prescribed for its issuance. Any person aggrieved by an order of the Director may appeal, at any time, pursuant to M.G.L. c. 149, § 9. For purposes of any such appeal, references to "associate commissioners" in M.G.L. c. 149, § 9 shall mean the Board of Occupational Safety and Health.

(b) Every final action granting a variance shall be published on the Department's website. Each final action shall specify the alternative to the standard involved which the particular variance permits. The Director shall also make all variances known to affected employees and employers. All variances granted pursuant to 454 CMR 25.05 shall have only future effect.