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This entry was published on 2015-08-07
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§ 30. Variations. 1. If there shall be practical difficulties or
unnecessary hardship in carrying out the provisions of this chapter
relating to safety or health standards, or an order requiring compliance
with such provisions of this chapter, or in carrying out an order of the
commissioner requiring compliance with the state building construction
code, the commissioner may make a variation from such requirements or
order if the spirit of the provision, rule or code shall be observed and
public safety secured. Applications for permanent variations shall be
accompanied by a non-refundable fee of three hundred fifty dollars
payable to the commissioner.

2. Any person affected by such provision, rule, code, or order, or his
agent, may petition the commissioner, in accordance with such rules as
he shall prescribe, for such variation stating the grounds therefor. If
a petition relates to an order requiring compliance with the state
building construction code, the commissioner shall give prompt notice of
the filing of such petition to the state building code council. If, in
the opinion of the council, it is necessary or desirable that it
intervene in any proceeding in connection therewith, it shall be
permitted to do so as a matter of right. The commissioner shall fix a
day for a hearing on such petition and give notice thereof to the
petitioner and to such other persons as he may determine. If the
commissioner shall permit a variation he may impose such conditions as
he may deem necessary or advisable to assure public safety. The
variation shall apply to the petitioner and shall recite the conditions
under which the variation shall be permitted.

3. Except for variations concerning provisions, rules, codes, orders
or any other matter affecting asbestos projects, mold projects or safety
and health standards for public employees, including but not limited to
projects covered by article thirty and section twenty-seven-a and
subdivision ten of section two hundred forty-one of this chapter;

a. any person who petitions the commissioner for a variation as
provided by this section shall:

(1) post a copy of the petition at the site to be affected by the
variation in a location that is reasonably accessible to the public and
the employees at the site;

(2) provide a listing, in the petition, of the designated
representatives (if any) of all employee organizations recognized or
certified pursuant to the national labor relations act (29 U.S.C.
sections 151 et. seq.), article fourteen of the civil service law or
article twenty of this chapter to represent employees at the site
affected by the variation; such listing shall provide the names and
addresses of all such representatives;

(3) mail by certified mail, return receipt requested, a copy of the
petition to the designated representatives listed as required by
subparagraph two of this paragraph within three days of sending the
petition to the commissioner; and

(4) affirm in the petition that the petition has been posted as
required by subparagraph one of this paragraph or that it will be posted
within one week of sending the petition to the commissioner and that the
petitioner has mailed by certified mail, return receipt requested, a
copy of the petition to all designated representatives, as required by
subparagraph three of this paragraph.

b. The commissioner shall send a copy of his or her determination on
the petition to the petitioner and any designated representatives listed
on the petition pursuant to subparagraph two of paragraph a of this

4. Whenever a petition is filed for a variation, except for a
variation relating to an order requiring compliance with the state
building construction code, or upon the commissioner's own motion, the
commissioner may make a general variation which shall apply to all
buildings, installations, or conditions where the facts are
substantially the same as those set forth in the resolution, by whomever
the same may be owned, possessed or controlled and wherever the same may
be or will thereafter be found within the state of New York with the
same force and effect as if a variation were duly granted upon separate
petition and for the use and benefit of every person affected by the
statutory provision or code rule from which the said general variation
was made.

5. Any variation may be amended or terminated by the commissioner for
any of the following reasons:

a. The variation or any of its conditions was or is not wholly
complied with;

b. The variation does not continue to secure public safety;

c. The difficulties or hardship prevailing at the time of the making
of the variation have ceased to exist;

d. The labor law provision or rule from which the variation was made
has been amended, or a new rule governing the subject has been adopted;

e. A finding by the commissioner that other substantial grounds exist
warranting the amendment or termination of the variation.

6. The commissioner may publish such variations as he may deem
necessary. A properly indexed record of all variations shall be kept in
the office of the department and open to public inspection.

7. Notwithstanding any other law, rule or regulation to the contrary,
as of the effective date of sections two hundred ninety-one through two
hundred ninety-four of chapter one hundred ninety of the laws of
nineteen hundred ninety, the fee requirements set forth in this section
and article thirty of this chapter shall continue to apply to all public
and private entities, including, but not limited to, the state, any
subdivision of the state, any government agency or instrumentality
thereof, including any entity created by one or more states or
subdivisions thereof, any public authority, any public or private
corporation, any person, company, unincorporated association, firm, or
partnership and any owner or operator thereof.