Current through Register 1537, December 20, 2024
(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.
