§ 30 — Variations

§ 30. Variations. 1. If there shall be practical difficulties or\nunnecessary hardship in carrying out the provisions of this chapter\nrelating to safety or health standards, or an order requiring compliance\nwith such provisions of this chapter, or in carrying out an order of the\ncommissioner requiring compliance with the state building construction\ncode, the commissioner may make a variation from such requirements or\norder if the spirit of the provision, rule or code shall be observed and\npublic safety secured. Applications for permanent variations shall be\naccompanied by a non-refundable fee of three hundred fifty dollars\npayable to the commissioner.\n 2. Any person affected by such provision, rule, code, or order, or his\nagent, may petition the commissioner, in accordance with such rules as\nhe shall prescribe, for such variation stating the grounds therefor. If\na petition relates to an order requiring compliance with the state\nbuilding construction code, the commissioner shall give prompt notice of\nthe filing of such petition to the state building code council. If, in\nthe opinion of the council, it is necessary or desirable that it\nintervene in any proceeding in connection therewith, it shall be\npermitted to do so as a matter of right. The commissioner shall fix a\nday for a hearing on such petition and give notice thereof to the\npetitioner and to such other persons as he may determine. If the\ncommissioner shall permit a variation he may impose such conditions as\nhe may deem necessary or advisable to assure public safety. The\nvariation shall apply to the petitioner and shall recite the conditions\nunder which the variation shall be permitted.\n 3. Except for variations concerning provisions, rules, codes, orders\nor any other matter affecting asbestos projects, mold projects or safety\nand health standards for public employees, including but not limited to\nprojects covered by article thirty and section twenty-seven-a and\nsubdivision ten of section two hundred forty-one of this chapter;\n a. any person who petitions the commissioner for a variation as\nprovided by this section shall:\n (1) post a copy of the petition at the site to be affected by the\nvariation in a location that is reasonably accessible to the public and\nthe employees at the site;\n (2) provide a listing, in the petition, of the designated\nrepresentatives (if any) of all employee organizations recognized or\ncertified pursuant to the national labor relations act (29 U.S.C.\nsections 151 et. seq.), article fourteen of the civil service law or\narticle twenty of this chapter to represent employees at the site\naffected by the variation; such listing shall provide the names and\naddresses of all such representatives;\n (3) mail by certified mail, return receipt requested, a copy of the\npetition to the designated representatives listed as required by\nsubparagraph two of this paragraph within three days of sending the\npetition to the commissioner; and\n (4) affirm in the petition that the petition has been posted as\nrequired by subparagraph one of this paragraph or that it will be posted\nwithin one week of sending the petition to the commissioner and that the\npetitioner has mailed by certified mail, return receipt requested, a\ncopy of the petition to all designated representatives, as required by\nsubparagraph three of this paragraph.\n b. The commissioner shall send a copy of his or her determination on\nthe petition to the petitioner and any designated representatives listed\non the petition pursuant to subparagraph two of paragraph a of this\nsubdivision.\n 4. Whenever a petition is filed for a variation, except for a\nvariation relating to an order requiring compliance with the state\nbuilding construction code, or upon the commissioner's own motion, the\ncommissioner may make a general variation which shall apply to all\nbuildings, installations, or conditions where the facts are\nsubstantially the same as those set forth in the resolution, by whomever\nthe same may be owned, possessed or controlled and wherever the same may\nbe or will thereafter be found within the state of New York with the\nsame force and effect as if a variation were duly granted upon separate\npetition and for the use and benefit of every person affected by the\nstatutory provision or code rule from which the said general variation\nwas made.\n 5. Any variation may be amended or terminated by the commissioner for\nany of the following reasons:\n a. The variation or any of its conditions was or is not wholly\ncomplied with;\n b. The variation does not continue to secure public safety;\n c. The difficulties or hardship prevailing at the time of the making\nof the variation have ceased to exist;\n d. The labor law provision or rule from which the variation was made\nhas been amended, or a new rule governing the subject has been adopted;\nor\n e. A finding by the commissioner that other substantial grounds exist\nwarranting the amendment or termination of the variation.\n 6. The commissioner may publish such variations as he may deem\nnecessary. A properly indexed record of all variations shall be kept in\nthe office of the department and open to public inspection.\n 7. Notwithstanding any other law, rule or regulation to the contrary,\nas of the effective date of sections two hundred ninety-one through two\nhundred ninety-four of chapter one hundred ninety of the laws of\nnineteen hundred ninety, the fee requirements set forth in this section\nand article thirty of this chapter shall continue to apply to all public\nand private entities, including, but not limited to, the state, any\nsubdivision of the state, any government agency or instrumentality\nthereof, including any entity created by one or more states or\nsubdivisions thereof, any public authority, any public or private\ncorporation, any person, company, unincorporated association, firm, or\npartnership and any owner or operator thereof.\n