Current through Register Vol. 50, No. 9, March 1, 2024
RELATES TO:
KRS
338.081,
338.153
NECESSITY, FUNCTION, AND CONFORMITY:
KRS
338.051(3) requires the
Kentucky Occupational Safety and Health Standards Board to promulgate
occupational safety and health administrative regulations and authorizes the
chairman to reference federal standards without board approval if necessary to
meet federal time requirements.
KRS
338.061 authorizes the board to establish,
modify, or repeal standards and reference federal standards. This
administrative regulation establishes proceedings to grant variances and other
relief pursuant to KRS Chapter 338.
Section
1. Definitions.
(1)
"Commissioner" is defined by
KRS
338.015.
(2) "Employee" is defined by KRS
338.0159(2).
(3) "Employer" is
defined by
KRS
338.015(1).
(4) "Review commission" is defined by
KRS
338.015(8).
Section 2. This administrative
regulation shall not apply to variances granted pursuant to
KRS
338.153(2)(c).
Section 3. Effect of Variances and Interim
Order.
(1) All variances and interim orders
granted pursuant to this administrative regulation shall have only future
effect.
(2) The commissioner may
decline until the completion of the proceeding, a variance or interim order
application for a subject or issue if a citation has been issued to the
employer involved or a proceeding on a citation or related issue is pending
before the review commission, or any other court.
Section 4. Public Notice of a Granted
Variance or Interim Order. Every final action granting a variance or interim
order establishing the alternative to the standard the variance permits shall
be posted on the Labor Cabinet Web site.
Section
5. Applications and Documents.
(1) There shall not be a standard form for
applications and documents. Information to be submitted in applications and
documents shall be as established in this administrative regulation.
(2) Applications and other documents shall be
clearly legible.
(3) Each
application or other document shall be signed by the person filing the
application or document or by her or his attorney or other authorized
representative.
Section
6. Temporary Variance.
(1)
Application. Any employer requesting a temporary variance shall file a written
application with the commissioner.
(2) An application shall include:
(a) The name and address of the
applicant;
(b) The address of the
place or places of employment involved;
(c) The specific standard from which the
applicant seeks a variance;
(d) A
representation by the applicant supported by representations from persons
having firsthand knowledge of:
1. The facts
represented;
2. Inability to comply
with the standard; and
3. A
detailed statement of the reasons therefore;
(e) A statement of the steps the applicant
took or will take, with specific dates, to protect employees against the hazard
covered by the standard;
(f) A
statement of when the applicant will comply with the standard and steps taken,
with specific dates, to come into compliance with the standard;
(g) A statement of the facts establishing the
applicant:
1. Is unable to comply with a
standard by its effective date because of unavailability of professional or
technical personnel, 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;
2. Is taking all available steps to safeguard
employees against the hazards covered by the standard; and
3. Has an effective program for coming into
compliance with the standard as quickly as practicable;
(h) Any request for a hearing;
(i) A statement attesting the applicant:
1. Informed affected employees of application
by providing a copy of the application to the employees' authorized
representative; and
2. Posted at
the place or places where notices to employees are normally posted, and by
other appropriate means, a summary of the application including, where a copy
of the full application may be examined; and
(j) A description of how affected employees
were informed of the application and their right to petition the commissioner
for a hearing.
Section
7. Permanent Variance.
(1)
Application. Any employer requesting a permanent variance shall file a written
application with the commissioner.
(2) Contents. An application shall include:
(a) The name and address of the
applicant;
(b) The address of the
place or places of employment involved;
(c) A description of the condition, practice,
means, method, operation or process proposed by the applicant;
(d) A statement showing how the condition,
practice, means, method, operation or process proposed provide employment and
places of employment to employees that are as safe and healthful as required by
the standard;
(e) Certification the
applicant informed all employees of the application that includes:
1. Providing a copy of the application to the
employees' authorized representative; and
2. Posting at the place or places where
notices to employees are normally posted, and by other appropriate means, a
summary of the application including where a copy of the full application may
be examined;
(f) Any
request for a hearing; and
(g) A
description of how employees were informed of the application and their right
to petition the commissioner for a hearing.
Section 8. Interim Order.
(1) Application. An application may be made
for an interim order in lieu of a variance or an order to be effective until a
decision on a temporary or permanent variance application is rendered.
(a) An application made for an interim order
in lieu of a temporary or permanent variance shall include the information
required in Section 7(2) of this administrative regulation for a permanent
variance.
(b) An application made
for an interim order to be effective until a decision on a temporary or
permanent variance application is rendered shall include statements of fact why
the interim order should be granted.
(c) The commissioner may rule ex parte upon
any application for an interim order.
(2) Denial of application. If an interim
order application is denied, the commissioner shall provide written notice to
the applicant accompanied by a statement of the grounds therefore.
(3) Grant of an interim order.
(a) If an interim order is granted, a copy of
the order shall be provided to the applicant and, if necessary, other affected
parties.
(b) The applicant shall
provide notice within five (5) working days to affected employees by the same
means used to inform them of the application.
(c) The interim order shall be published on
the Labor Cabinet's Web site until it expires.
Section 9. Modification, Revocation, and
Renewal of a Variance or Interim Order.
(1)
Modification or revocation. An affected employer or an affected employee may
apply in writing to the commissioner for a modification or revocation of a
variance or interim order issued pursuant to
KRS
338.153. The application shall contain:
(a) The name and address of the
applicant;
(b) A description of the
relief sought;
(c) A statement with
detailed grounds for relief;
(d) If
the applicant is an employer, certification the applicant informed affected
employees of the application by:
1. Giving a
copy to the employees' authorized representative; and
2. Posting at the place or places where
notices to employees are normally posted, and by other appropriate means, a
summary of the application including where a copy of the full application may
be examined or posting the application in lieu of the summary;
(e) If the applicant is an
affected employee, certification that a copy of the application was provided to
the employer; and
(f) Any request
for a hearing.
(2)
(a) The commissioner may modify or revoke a
variance or interim order in accordance with this administrative
regulation.
(b) The commissioner
shall:
1. Publish a notice on the Labor
Cabinet Web site of her or his intention, which affords interested persons an
opportunity to submit written data, views, or arguments regarding the proposal
and informing the affected employer and employees of their right to request a
hearing, and
2. Take other
appropriate action to provide notice to affected employees.
(c) Any request for a hearing
shall include a short and plain statement of:
1. How the proposed modification or
revocation affects the requesting party; and
2. What the requesting party seeks to show on
the subject or issue involved.
(3) Renewal. Any variance or interim order
issued pursuant to
KRS
338.153 may be renewed or extended.
Section 10. Action on
Applications.
(1) Defective applications.
(a) If an application does not conform to
this administrative regulation, the commissioner shall deny the
application.
(b) The commissioner
shall give the applicant prompt written notice of the denial.
(c) A notice of denial shall include, or be
accompanied by, a brief statement of the grounds for the denial.
(d) A denial of an application shall not
prejudice the filing of another application.
(2) Adequate applications.
(a) If an application is not denied, the
commissioner shall publish notice of the application on the Labor Cabinet's Web
site.
(b) The notice shall include:
1. The terms, or an accurate summary, of the
application;
2. An invitation to
submit written data, views, or arguments regarding the application;
and
3. Information to request a
hearing on the application.
Section 11. Requests for a Hearing on an
Application.
(1) Request for hearing. Within
the time established in the notice of the application, any affected employer or
affected employee may file a request for a hearing on the application with the
commissioner.
(2) Contents of a
request for a hearing. A request for a hearing shall include:
(a) A concise statement of facts showing how
the employer or employee is affected by the relief applied for;
(b) A specification of any statement or
representation in the denied application and a concise summary of the evidence
that would be adduced in support of each denial; and
(c) Any views or arguments on any issue of
fact or law presented.
Section 12. Consolidation of Proceedings. The
commissioner may consolidate or contemporaneously consider two (2) or more
proceedings involving the same or closely related issues.
Section 13. Notice of Hearing.
(1) Service. Upon request for a hearing, the
commissioner shall serve a notice of hearing.
(2) Contents. A notice of hearing shall
include:
(a) The time, place, and nature of
the hearing;
(b) The legal
authority under which the hearing is to be held;
(c) A specification of issues of fact and
law; and
(d) A designation of a
hearing examiner as an authorized representative of the commissioner if the
commissioner is not conducting the hearing.
(3) Referral to hearing examiner. A copy of
the hearing notice shall be provided to the hearing examiner with a copy of the
original application and a copy of any written request for a hearing.
Section 14. Manner of Service.
(1) Service of any document upon any party
shall be made by personal delivery, mail, or other means.
(2) If service is by personal delivery, the
person serving the document shall certify the manner and date of
service.
Section 15.
Hearing Examiners Powers and Duties.
(1)
Powers. In accordance with
KRS
338.081, the commissioner or hearing examiner
shall have all powers necessary to conduct a fair, full, and impartial hearing,
including the authority to:
(a) Administer
oaths and affirmations;
(b) Rule
upon offers of proof and receive relevant evidence;
(c) Provide for discovery and determine its
scope;
(d) Regulate the course of
the hearing and conduct of the parties and their counsel;
(e) Consider and rule upon procedural
requests;
(f) Hold conferences for
settlement or simplification of the issues by consent of the parties;
(g) Make, or to cause to be made, an
inspection of the employment or place of employment involved;
(h) Make decisions in accordance with KRS
Chapter 338; and
(i) Take any other
appropriate action authorized by KRS Chapter 338 or 803 KAR Chapter
2.
(2) Private
consultation. Except to the extent required for the disposition of ex parte
matters, a hearing examiner shall not consult a person or party on any fact at
issue, unless upon notice and opportunity for all parties to
participate.
(3) Disqualification.
(a) If a hearing examiner deems herself or
himself disqualified to preside over a particular hearing, she or he shall
withdraw therefrom by notice on the record directed to the
commissioner.
(b) Any party who
deems a hearing examiner for any reason to be disqualified to preside, or to
continue to preside, over a particular hearing, may file a motion with the
commissioner to disqualify and remove the hearing examiner supported by an
affidavit stating all alleged grounds for disqualification.
(c) The commissioner shall rule upon the
motion.
(4) Contumacious
conduct; failure or refusal to appear or obey the rulings of the hearing
examiner.
(a) Contumacious conduct at any
hearing before the hearing examiner shall be grounds for conclusion of the
hearing.
(b) If a witness or a
party refuses to answer a question or refuses to obey an order to provide or
permit discovery, the hearing examiner may rule with regard to the refusal,
including an order denying the application of an applicant or regulating the
contents of the record of the hearing.
(c) Referral to Kentucky Rules of Civil
Procedure. On any procedural question not regulated by this administrative
regulation, the hearing examiner shall be guided to the extent practicable by
any pertinent provisions of the Kentucky Rules of Civil Procedure.
Section 16. Prehearing
Conferences.
(1) Convening a conference. Upon
her or his own motion or motion of a party, the hearing examiner may direct the
parties or their counsel to meet for a conference to consider:
(a) Simplification of the issues;
(b) Necessity or desirability of amendments
to documents for purposes of clarification, simplification, or
limitation;
(c) Stipulations,
admissions of fact, and contents and authenticity of documents;
(d) Limitation of the number of parties or
expert witnesses; and
(e) Other
matters to expedite the disposition of the proceeding, and assure a just
conclusion.
(2) Record
of conference.
(a) The hearing examiner shall
make an order that recites the:
1. Action
taken at the conference;
2.
Amendments allowed to any documents that have been filed and the agreements
made between the parties as to any of the matters considered, and which limits
the issues for hearing to those not disposed of by admissions or
agreements.
(b) An
entered order shall control the subsequent course of the hearing, unless
modified at the hearing, to prevent manifest injustice.
Section 17. Consent Findings and
Orders.
(1) General.
(a) At any time before the reception of
evidence in any hearing, or during any hearing, a reasonable opportunity shall
be afforded to permit negotiation by the parties of an agreement containing
consent findings and an order disposing of the whole or any part of the
proceeding.
(b) The allowance of
this opportunity and the duration thereof shall be in the discretion of the
hearing examiner after considering the nature of the proceeding, the
requirements of the public interest, the representations of the parties, and
the probability of an agreement that will result in a just disposition of the
issues involved.
(2)
Contents. Any agreement containing consent findings or order disposing of a
proceeding shall include:
(a) That the finding
or order shall have the same force and effect as if made after a full
hearing;
(b) That the entire record
on which any finding or order may be based shall consist solely of the
application and the agreement;
(c)
A waiver of any further procedural steps before the hearing examiner and the
commissioner; and
(d) A waiver of
any right to challenge or contest the validity of the finding or order made in
accordance with the agreement.
(3) Submission. On or before the expiration
of the time granted for negotiations, the parties or their counsel may:
(a) Submit the proposed agreement to the
hearing examiner for her or his consideration; or
(b) Inform the hearing examiner that
agreement cannot be reached.
(4) Disposition. In the event an agreement
containing consent findings or order is submitted within the time allowed, the
hearing examiner may accept the agreement by issuing her or his decision based
upon the agreed findings.
Section
18. Discovery.
(1) Depositions.
(a)
1. For
reasons of unavailability or for other good cause shown, the testimony of any
witness may be taken by deposition.
2. Depositions may be taken orally or upon
written interrogatories before any person designated by the hearing examiner
and having power to administer oaths.
(b) Application. Any party desiring to take
the deposition of a witness shall make application in writing to the hearing
examiner, stating:
1. The reasons the
deposition should be taken;
2. The
date, time, place, name, and address of the person before whom the deposition
is to be taken;
3. The name and
address of each witness; and
4. The
subject matter concerning which each witness is expected to testify.
(c) Notice. Notice as the hearing
examiner may order shall be given by the party taking the deposition to every
other party.
(d) Taking and
receiving in evidence.
1. Each witness
testifying upon deposition shall have the right to cross-examine her or
him.
2. The questions propounded
and the answers thereto, together with all objections made, shall be reduced to
writing, read to the witness, subscribed by him, and certified by the officer
before whom the deposition is taken.
3. Thereafter, the officer shall seal the
deposition, with two (2) copies thereof, in an envelope and mail the same by
registered mail to the hearing examiner.
4. Subject to objections to the questions and
answers as were noted at the time of taking the deposition and would be valid
were the witness personally present and testifying, the deposition may be read
and offered in evidence by the party taking it as against any party who was
present, represented at the taking of the deposition or who had due notice
thereof.
(e) No part of
a deposition shall be admitted in evidence unless there is a showing that the
reasons for the taking of the deposition in the first instance exist at the
time of hearing.
(2)
Other discovery. If appropriate to a just disposition of any issue in a
hearing, the hearing examiner may allow discovery by any other appropriate
procedure, such as by written interrogatories upon a party, production of
documents by a party, or by entry for inspection of the employment or place of
employment involved.
Section
19. Hearings.
(1) Order of
proceeding. Except as ordered otherwise by the hearing examiner, the party
applicant for relief shall proceed first at a hearing.
(2) Burden of proof. The party applicant
shall have the burden of proof.
(3)
Evidence.
(a) Admissibility.
1. A party shall be entitled to present its
case or defense by oral or documentary evidence, to submit rebuttal evidence,
and to conduct cross-examination as required for a full and true disclosure of
the facts.
2. Any oral or
documentary evidence may be received, but the hearing examiner shall exclude
evidence that is irrelevant, immaterial, or unduly repetitious.
(b) Testimony of witnesses. The
testimony of a witness shall be upon oath or affirmation administered by the
hearing examiner.
(c) Objections.
1.
a. If a
party objects to the admission or rejection of any evidence, to the limitation
of the scope of any examination or cross-examination, or to the failure to
limit the scope, it shall state briefly the grounds for the
objection.
b. Rulings on all
objections shall appear in the record.
2. Only objections made before the hearing
examiner shall be relied upon subsequently in a proceeding.
(d) Exceptions. Formal exception
to an adverse ruling shall not be required.
(4) Official notice. Official notice may be
taken of any material fact not appearing in evidence in the record, which is
among the traditional matters of judicial notice or concerning which the
Division of Occupational Safety and Health Compliance by reason of its
functions is presumed to be expert if the parties shall be given adequate
notice, at the hearing or by reference in the presiding hearing examiner's
decision, of the matters so noticed, and shall be given adequate opportunity to
show the contrary.
(5) Transcript.
(a) Hearings shall be transcribed.
(b) Copies of the transcript may be obtained
by the parties upon written application filed with the reporter, and upon the
payment of fees at the rate provided in the agreement with the
reporter.
Section
20. Decisions of Hearing Examiner.
(1) Proposed findings of fact, conclusions,
and orders.
(a) Within ten (10) calendar days
after receipt of notice that the transcript of the testimony has been filed or
such additional time as the hearing examiner may allow, each party may file
with the hearing examiner proposed findings of fact, conclusions of law, or
order, together with a supporting brief expressing the reasons for the
proposals.
(b) The proposals and
briefs shall be served on all parties and shall cite to all portions of the
record and to all authorities relied upon in support of each
proposal.
(2) Decision
of the hearing examiner. Within a reasonable time after the time allowed for
the filing of proposed findings of fact, conclusions of law, and order, the
hearing examiner shall make and serve her or his decision upon each party,
which shall become final on the 20th calendar day after service thereof, unless
exceptions are filed thereto, as established in this administrative regulation.
The decision of the hearing examiner shall include:
(a) A statement of findings and conclusions,
with reasons and bases therefore, upon each material issue of fact, law, or
discretion presented on the record; and
(b) The appropriate order, relief, or denial
thereof.
(3) The
decision of the hearing examiner shall be based upon a consideration of the
whole record, state all facts officially noticed and relied upon, and based on
a preponderance of reliable and probative evidence.
Section 21. Exceptions.
(1) Within twenty (20) days after service of
the hearing examiner's decision, any party may file with the hearing examiner
written exceptions thereto with supporting reasons.
(2) Exceptions shall refer to the specific
findings of fact, conclusions of law, or terms of the order excepted to, the
specific pages of transcript relevant to the suggestions, and shall suggest
corrected findings of fact, conclusions of law, or terms of the
order.
(3) Upon receipt of any
exceptions, the hearing examiner shall establish a time for filing any
objections to the exceptions and any supporting reasons.
Section 22. Transmission of Record.
(1) If exceptions are filed, the hearing
examiner shall transmit the record of the proceeding to the commissioner for
review.
(2) The record shall
include:
(a) The application;
(b) Any request for hearing
thereon;
(c) Motions and requests
filed in written form;
(d)
Rulings;
(e) The transcript of the
testimony taken at the hearing, together with the exhibits admitted in
evidence;
(f) All documents or
papers filed in connection with prehearing conference;
(g) Proposed findings of fact, conclusions of
law, orders, and supporting reasons; and,
(h) The hearing examiner's decision, and
exceptions, statements of objections, and briefs in support thereof.
Section 23. Decision of
the Commissioner.
(1) If exceptions to a
decision of a hearing examiner are taken pursuant to this administrative
regulation, the commissioner shall upon consideration thereof, together with
the record references and authorities cited in support thereof, and any
objections to exceptions and supporting reasons, make her or his
decision.
(2) The decision shall
affirm, modify, or set aside, in whole or part, the findings, conclusions, and
the order contained in the decision of the presiding hearing examiner, and
shall include a statement of reasons or bases for the actions taken on each
exception presented.
Section
24. Motion for Summary Decision.
(1)
(a) Any
party may, at least twenty (20) days before the date established for any
hearing pursuant to this administrative regulation, move with or without
supporting affidavits for a summary decision in his or her favor on all or any
part of the proceeding.
(b) Any
other party may, within ten (10) days after service of the motion, serve
opposing affidavits or countermove for summary decision.
(c) The presiding examiner may, in her or his
discretion, set the matter for argument and call for the submission of
briefs.
(2) The filing
of any documents pursuant to this section shall be with the hearing examiner,
and copies of any documents shall be served in accordance with this
administrative regulation.
(3)
(a) The hearing examiner shall grant the
motion if the pleadings, affidavits, material obtained by discovery or
otherwise obtained, or matters officially noticed show that there is no genuine
issue as to any material fact and that a party is entitled to summary
decision.
(b) The hearing examiner
may deny a motion if the moving party denies access to information by means of
discovery to a party opposing the motion.
(4)
(a)
Affidavits shall state facts as would be admissible in evidence in a Kentucky
court of law and shall show affirmatively that the affiant is competent to
testify to the matters stated therein.
(b) If a motion for summary decision is made
and supported as provided in this section, a party opposing the motion shall
not rest upon the mere allegations or denials of this pleading; her or his
response shall state specific facts showing that there is genuine issue of fact
for the hearing.
(5) If
the affidavits of a party opposing the motion cannot present facts essential to
justify the party's opposition, the hearing examiner may deny the motion for
summary decision, order a continuance to allow affidavits to be obtained or
discovery to be had, or make other order as is just.
(6) The denial of all or any part of a motion
for summary decision by the hearing examiner shall not be subject to
interlocutory appeal to the commissioner unless the hearing examiner certified
in writing that:
(a) The ruling involves an
important question of law or policy as to which there is substantial ground for
difference of opinion; and
(b) An
immediate appeal from the ruling may materially advance the ultimate
termination of the proceeding.
(7) The allowance of an interlocutory appeal
shall not stay the proceeding before the hearing examiner unless the
commissioner shall so order.
Section
25. Summary Decision.
(1) No
genuine issue of material fact.
(a) If no
genuine issue of material fact is found to have been raised, the hearing
examiner may issue an initial decision to become final twenty (20) days after
service thereof, unless, within that period of time any party files written
exceptions to the decision.
(b) If
any timely exception is filed, the hearing examiner shall fix a time for filing
any supporting reasons.
(c)
Thereafter, the commissioner, after consideration of the exceptions and any
supporting briefs filed therewith and of any objections to the exceptions and
any supporting reasons, may issue a final decision.
(d) An initial decision and a final decision
shall include a statement of:
1. Findings and
conclusions, and the reasons or bases thereof, on all issues presented;
and
2. The terms and conditions of
the order made.
(2) Hearings on issues of fact, if a genuine
material question of fact is raised, the hearing examiner shall, and in any
other case may, set the case for an evidentiary hearing in accordance with this
administrative regulation.
Section
26. Effect of Appeal of a Hearing Examiner's Decision. A hearing
examiner's decision shall not be final pending a decision on appeal by the
commissioner.
Section 27. Finality
for Purposes of Judicial Review. A decision by the commissioner shall be deemed
final agency action for purposes of judicial review.
STATUTORY AUTHORITY: KRS 333.051,
338.0161