Register April 2018 No. 748
Chapter SPS 303
ADMINISTRATIVE PROCEDURES
Subchapter I — Petition for Variance Procedures
SPS 303.01 Petition procedures.
SPS 303.03 General variances.
SPS 303.04 Public employer variances.
SPS 303.05 Exemptions under the right-to-know law.
SPS 303.06 Appeals on petitions.
Subchapter II — Stop Work and Stop Use Procedures
SPS 303.13 Stop work and stop use procedures.
Ch. SPS 303 Note
Note: Chapter ILHR 3 as it existed on November 30,1988 was repealed and a new chapter ILHR 3 was created effective December 1, 1988. Chapter ILHR 3 was renumbered ch. Comm 3 under s. 13.93 (2m) (b) 1., Stats., and corrections made under s. 13.93 (2m) (b) 6. and 7., Stats.,
Register, June, 1998, No. 510. Chapter Comm 3 was renumbered chapter SPS 303 under s. 13.92 (4) (b) 1., Stats.,
Register December 2011 No. 672.
SPS 303.001
SPS 303.001
Purpose. The purpose of this subchapter is to specify procedures for applying for a variance from a rule administered and enforced by the department. If the provisions of this subchapter differ from those specified in the code containing the rule from which the variance is being requested, the most restrictive requirement shall govern.
SPS 303.001 History
History: Cr.
Register, November, 1988, No. 395, eff. 12-1-88;
CR 05-049: am.
Register July 2006 No. 607, eff. 8-1-06.
SPS 303.002
SPS 303.002
Scope. This subchapter specifies who may apply for a petition for variance from a rule, the procedures that must be followed when applying for and processing a petition for variance, and the procedures for appealing a decision on a petition for variance.
SPS 303.002 History
History: Cr.
Register, November, 1988, No. 395, eff. 12-1-88;
CR 05-049: am.
Register July 2006 No. 607, eff. 8-1-06.
SPS 303.01
SPS 303.01
Petition procedures. Except as specified in
ss. SPS 303.04 and
303.05, all petitions for variance from rules of the department shall be processed as provided for in
s. SPS 303.03. Appeals shall be handled as set forth in
s. SPS 303.06.
SPS 303.02
SPS 303.02
Definitions. In this subchapter:
SPS 303.02(1)
(1) “Administrator" means the department administrator of the division administering and enforcing the rule being petitioned, or his or her designee.
SPS 303.02(2)
(2) “Department" means the department of safety and professional services.
SPS 303.02(3)
(3) “Division" means the division administering and enforcing the rule being petitioned.
SPS 303.02(4)
(4) “Equivalency" means the same intent and degree of safety, health or public welfare as contained in the requirements specified in a rule.
SPS 303.02(5)
(5) “Public employee" means any employee of the state, of any state agency or of any political subdivision of the state.
SPS 303.02(6)
(6) “Public employer" means the state, any state agency or any political subdivision of the state.
SPS 303.02(7)
(7) “Secretary" means the secretary of the department.
SPS 303.02(8)
(8) “Variance" means a specified alternative to or deviation from a rule.
SPS 303.02 History
History: Cr.
Register, November, 1988, No. 395, eff. 12-1-88; am. (1), r. (3) and (6), renum. (4), (5) and (7) to (11) to be (3), (4) and (5) to (9),
Register, September, 2000, No. 537, eff. 10-1-00;
CR 05-049: am.
Register July 2006 No. 607, eff. 8-1-06; correction in (2) made under s.
13.92 (4) (b) 6., Stats.,
Register December 2011 No. 672.
SPS 303.03(1)(1)
Scope. Any person affected by a rule of the department may petition for a variance from the rule. The petition for variance shall establish an equivalency which meets the intent of the rule being petitioned.
SPS 303.03(2)
(2) Application for petition for variance. Application for a petition for variance from a rule shall be made on forms furnished by the division. The following shall be submitted when requesting a variance from a rule:
SPS 303.03(2)(a)
(a) A completed petition for variance form including a clear and concise written statement of the specific provisions of the rule from which the variance is requested along with a specific statement of the procedures and materials to be used if the variance is granted;
SPS 303.03(2)(c)
(c) A completed position statement on the petition for variance from the department of health services, where applicable;
SPS 303.03(2)(d)
(d) A completed position statement on the petition for variance from the chief of the fire department having jurisdiction, where applicable; and
SPS 303.03(2)(e)
(e) A completed municipal recommendation on the petition for variance from the enforcement official of the municipality exercising jurisdiction, where applicable.
SPS 303.03 Note
Note: The submittal of position statements and municipal recommendations is dependent on the rule being petitioned and is specified in the code under which the variance is requested.
SPS 303.03 Note
Note: The department form required in this section is available from the Division of Industry Services at P.O. Box 7162, Madison, WI 53707-7162; or at telephone 608/266-3151 or 877/617-1565 or 411 (Telecommunications Relay); or at the Division's website at
http://dsps.wi.gov/ .
SPS 303.03(3)(a)(a) Upon receipt of the petition for variance form, the applicable fee and the position statement, and any other documents the petitioner may wish to submit, the division shall evaluate the petition for variance and determine if the petition for variance provides for an equivalency which meets the intent of the rule being petitioned.
SPS 303.03(3)(b)
(b) Except as provided in
sub. (5), requests for petitions for variance shall be evaluated on a first come, first serve basis with respect to the code involved.
SPS 303.03(3)(c)
(c) If additional information is needed by the division to review the petition for variance and make a determination, the division shall notify the owner in writing of the specific information required.
SPS 303.03(3)(d)
(d) If it is determined that the petition for variance provides an equivalency, the petition for variance shall be approved by the division.
SPS 303.03(3)(e)
(e) If it is determined that the petition for variance does not provide an equivalency, the division may:
SPS 303.03(3)(e)1.
1. Approve the petition for variance subject to specific conditions determined by the division which shall establish an equivalency which meets the intent of the rule;
SPS 303.03(3)(e)2.
2. Grant a temporary variance to delay enforcement of a rule to a specified date, not to exceed one year. In requesting the variance, the petitioner shall demonstrate that all available steps are being taken to safeguard the public and employees against the hazard covered by the rule from which the variance is sought and shall possess and describe a program for coming into compliance with the rule as quickly as possible. A temporary variance may be renewed no more than twice, not to exceed one year each, and only if the petitioner files an application for renewal at least 90 calendar days before expiration of the temporary variance;
SPS 303.03(3)(e)3.
3. Grant an experimental variance to allow the petitioner to participate in an experiment approved by the division to demonstrate or validate new or improved techniques to safeguard the health or safety of the public and employees; or
SPS 303.03(4)
(4) Notification of petition for variance determination. The division shall notify the petitioner in writing of the petition for variance determination, including any conditions of approval. Any denial shall include the reason for denial, and information on the appeals procedure.
SPS 303.03(5)(a)(a) Except as provided in
pars. (b) to
(d), the division shall review and make a determination on an application for a petition for variance within 30 business days. When an appointment process exists for a specific type of petition, the processing time shall begin on the appointment date. When an appointment process does not exist for a specific type of petition, the processing time shall begin on the day after receipt of the application and all forms, fees and other documents necessary to complete the review.
SPS 303.03(5)(b)
(b) Upon request of the petitioner and submittal of the required fee, the division shall facilitate the review of a petition in less than the processing time specified in
par. (a). The fee for this type of priority petition review shall be twice the fee required for the processing time specified in
par. (a). The division shall review and make a determination on an application for a priority petition for variance within 10 business days.
SPS 303.03(5)(c)
(c) Petitions for variance from a rule contained in
chs. SPS 320 to
325 shall be processed by the division within 10 business days where a municipality administers and enforces the code, and within 15 business days where the division administers and enforces the code.
SPS 303.03(5)(d)
(d) Pursuant to s.
101.121 (3) (b), Stats., petitions for variance from a rule for a historic building shall be processed by the division within 10 business days.
SPS 303.03(5)(e)
(e) When additional information is requested by the division to complete the review of the petition, the amount of time from the date of the request to the date of receipt by the division of the information will not be included in the processing times specified in
pars. (a) to
(d). The full period for review specified in
pars. (a) to
(d) shall apply from the date of receipt of the additional information.
SPS 303.03(5)(f)1.1. If a petition for variance is submitted with a request for a plan review under
s. SPS 382.20, the processing times of this subsection for the petition and the processing times of
s. SPS 382.20 (1) for the plan review shall run concurrently.
SPS 303.03(5)(f)2.
2. If a petition for variance is submitted with a request for a plan review under either
s. SPS 361.31 or
383.22, the processing times of this subsection for the petition and the processing times of
ss. SPS 361.31 (3) (a) and
383.22 (3) (a) for the plan review shall run consecutively, with the petition being processed first.
SPS 303.03(6)(a)(a) If a petition for variance is initially denied by the division, the petitioner may, in writing, modify the request for variance by submitting additional or other alternatives in order to provide an equivalency and resubmit the application for the petition for variance.
SPS 303.03(6)(b)
(b) The petitioner may, in writing, request that his or her original petition statements or the conditions of approval be modified and resubmit the application for the petition for variance.
SPS 303.03(7)
(7) Revocation. The division may revoke any petition for variance where it is determined that the variance was obtained through fraud or deceit or where the petitioner has violated the specific conditions on which the variance was approved.
SPS 303.03 History
History: Cr.
Register, November, 1988, No. 395, eff. 12-1-88; correction in (2) (b) made under s. 13.93 (2m) (b) 7., Stats.,
Register, January, 1995, No. 469; am. (3) (a), (c), (d), (e) (intro.), 1., 3., (4), (6) (a) and (7),
Register, September, 2000, No. 537, eff. 10-1-00;
correction in (5) (c) made under s. 13.93 (2m) (b) 7., Stats.,
Register, September, 2000, No. 537;
CR 01-139: am. (5) (f) 2.
Register June 2002 No. 558, eff. 7-1-02; correction in (2) (c) made under s. 13.93 (2m) (b) 6., Stats.,
Register June 2002 No. 558;
CR 05-049: am. (1) (2) (e) and (5) (a) to (e)
Register July 2006 No. 607, eff. 8-1-06;
CR 06-119: am. (5) (a) to (e)
Register July 2007 No. 619, eff. 8-1-07;
CR 06-120: am. (5) (d),
Register February 2008 No. 626, eff. 3-1-08;
correction in (2) (b), (c), (5) (c), (f) 1., 2. made under s. 13.92 (4) (b) 6., 7., Stats.,
Register December 2011 No. 672;
CR 16-094: am. (2) (a), Register April 2018 No. 748 eff. 5-1-18.
SPS 303.04(1)
(1)
Types of variances. Pursuant to s.
101.055 (4), Stats., a public employer may apply to the division for a temporary, experimental or permanent variance on occupational safety and health rules affecting public employees.
SPS 303.04(1)(a)1.1. The division may grant a temporary variance before a rule goes into effect if the public employer complies with
subs. (2) and
(3) and establishes that it is unable to comply with a rule by the rule's effective date because of unavailability of professional or technical personnel or of necessary materials or equipment or because necessary construction or alteration of facilities cannot be completed by the effective date.
SPS 303.04(1)(a)2.
2. The employer shall also show that it is taking all available steps to safeguard employees against the hazard covered by the rule from which the variance is sought and shall possess and describe a program for coming into compliance with the rule as quickly as possible.
SPS 303.04(1)(a)3.
3. If a hearing on the application for variance is requested, the division may state in writing that non-compliance with the rule is permitted for 180 calendar days or until a decision is made after the hearing, whichever is earlier.
SPS 303.04(1)(a)4.
4. A temporary variance shall be in effect for a period to time needed by the employer to achieve compliance with the rule or for one year, whichever is shorter.
SPS 303.04(1)(a)5.
5. A temporary variance may be renewed no more than twice, and only if the public employer files an application for renewal at least 90 calendar days before expiration of the temporary variance.
SPS 303.04(1)(b)
(b) Experimental variance. The division may grant an experimental variance if the public employer complies with
subs. (2) and
(3) and it is determined that the variance is necessary to permit the employer to participate in an experiment approved by the division to demonstrate or validate new or improved techniques to safeguard the health or safety of employees.
SPS 303.04(1)(c)
(c) Permanent variance. The division may grant a permanent variance if the public employer complies with
subs. (2) and
(3) and it is determined that the employer has demonstrated by a preponderance of the evidence that the conditions and methods the employer uses or proposes to use provide employment or a place of employment which is as safe and healthful as that provided under the rule from which the employer seeks a permanent variance. A permanent variance may be modified or revoked upon application by the employer, an affected employee, a public employee representative or the department and after opportunity for a hearing on the application, but not sooner than 6 months after issuance of the permanent variance.
SPS 303.04(2)
(2) Application for petition for variance. Application for a petition for variance of a rule shall be made on forms furnished by the division. The following shall be submitted when requesting a variance from a rule:
SPS 303.04(2)(a)
(a) A completed and notarized petition for variance form including a clear and concise written statement of the specific provisions of the rule from which the variance is requested along with a specific statement of the procedures and materials to be used if the variance is granted; and
SPS 303.04 Note
Note: The Department form required in this section is available from the Division of Industry Services at P.O. Box 7162, Madison, WI 53707-7162; or at telephone 608/266-3151 or 877/617-1565 or 411 (Telecommunications Relay); or at the Division's Web site at
http://dsps.wi.gov/programs/industry-services.
