SPS 303.04(5)(d)2. 2. Grant a temporary variance as specified in sub. (1) (a);
SPS 303.04(5)(d)3. 3. Grant an experimental variance as specified in sub. (1) (b); or
SPS 303.04(5)(d)4. 4. Deny the petition for variance.
SPS 303.04(6) (6)Notification of petition for variance determination. The division shall notify the petitioner and affected parties in writing of the petition for variance determination. Any denial shall include the reason for denial, and information on appeals procedure.
SPS 303.04(7) (7)Time limit for processing. The division shall process petitions submitted under this section as specified in s. SPS 303.03 (5).
SPS 303.04(8) (8)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 303.04 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. (1) (intro.), (a) 1., 3., (b), (c), (3) (d), (4), (5) (a) to (c), (d) (intro.), 1., (6) and (8), Register, September, 2000, No. 537, eff. 10-1-00; CR 05-049: am. (2) (b) and (7) Register July 2006 No. 607, eff. 8-1-06; correction in (2) (b), (7) made under s. 13.92 (4) (b) 7., Stats., Register December 2011 No. 672.
SPS 303.05 SPS 303.05 Exemptions under the right-to-know law.
SPS 303.05(1)(1) Definitions. In this section:
SPS 303.05(1)(a) (a) "Employee" means any person as defined in s. 101.58 (2) (c), Stats.
SPS 303.05(1)(b) (b) "Employee representative" means any individual or organization as defined in s. 101.58 (2) (d), Stats.
SPS 303.05(1)(c) (c) "Employer" means any person as defined in s. 101.58 (2) (e), Stats.
SPS 303.05(2) (2)Petitions.
SPS 303.05(2)(a)(a) Pursuant to s. 101.598 (2), Stats., an employer may petition the division for an exemption from retaining a data sheet or maintaining an identification list as specified in s. 101.583 (1), Stats., regarding any mixture containing a toxic substance.
SPS 303.05(2)(b) (b) A petition for the exemption shall be in writing.
SPS 303.05 Note Note: Petitions for exemption should be sent to the Division of Industry Services, P.O. Box 2658, Madison, WI 53701-2658.
SPS 303.05(2)(c) (c) The petition shall be accompanied by the appropriate information and documentation indicating:
SPS 303.05(2)(c)1. 1. That the nature of the toxic substance or the quantity of the toxic substance present in the mixture is such that the mixture is highly unlikely to pose an unreasonable acute or chronic health hazard to an employee who works with or is likely to be exposed to the mixture; and
SPS 303.05(2)(c)2. 2. The specific conditions and procedures under which the mixture is to be used if the exemption is granted.
SPS 303.05(2)(d) (d) An employer requesting an exemption shall provide a copy of the petition to the appropriate employee representative and shall post a statement at the place where notices to employees are normally posted. The posted statement shall summarize the petition, specify a place where employees may examine it and inform employees of their right to request a hearing on it. Employees shall have 15 business days to request a hearing.
SPS 303.05(3) (3)Division action.
SPS 303.05(3)(a)(a) Upon receipt of a petition for exemption, the applicable fee and any other documents the employer may wish to submit, the division shall evaluate the petition and determine if the exemption may be granted.
SPS 303.05(3)(b) (b) If additional information is needed by the division to review the petition in order to make a determination, the division shall notify the employer in writing of the specific information required.
SPS 303.05(3)(c) (c) Upon receipt of a written request for a hearing from the employer, an affected employee or employee representative, the division shall schedule a hearing on the petition and inform the interested parties in writing about the date, time and place for the hearing. If a hearing has been requested, the division shall not act on the petition for exemption until the hearing has been held. The division shall hold the hearing within 30 business days from receipt of the request, unless the person requesting the hearing asks for an extension.
SPS 303.05(3)(d) (d) The division shall review and make a determination on a petition for exemption within 60 business days, but no sooner than 15 business days, after receipt of the petition and any additional information which may be required by the division or after a hearing is held in accordance with par. (c).
SPS 303.05(3)(e) (e) The division shall notify the employer and any interested parties as to the determination of the petition.
SPS 303.05(3)(f) (f) The division may grant the petition for exemption subject to specific conditions.
SPS 303.05(3)(g) (g) A denial of the exemption shall include the reason for the denial and information on the appeals procedure.
SPS 303.05(3)(h) (h) If the petition for exemption is granted, the employer shall post a statement at the place where notices to employees are normally posted. The posted notice shall summarize the exemption and the specific conditions under which the exemption is granted and inform employees of their right to appeal the exemption.
SPS 303.05(4) (4)Revocation. The division may revoke an exemption when it is determined that the exemption was obtained through fraud or deceit, where the employer has violated the specific conditions of the exemption or new information repudiates the original information on which the exemption was granted.
SPS 303.05 History History: Cr. Register, November, 1988, No. 395, eff. 12-1-88; am. (2) (a), (b), (3) (a) to (f) and (4), Register, September, 2000, No. 537, eff. 10-1-00.
SPS 303.06 SPS 303.06 Appeals on petitions.
SPS 303.06(1) (1) Application. The provisions of this section shall apply to appeals on any determinations made under ss. SPS 303.03, 303.04 and 303.05.
SPS 303.06(2) (2)Request for review by the administrator.
SPS 303.06(2)(a)(a) Any person whose petition for variance is denied, approved with conditions, approved as a temporary variance, or approved as an experimental variance or any person whose rights are affected by the granting of a petition for variance may request a review by the administrator. The review by the administrator shall not be considered as a contested case hearing.
SPS 303.06(2)(b) (b) A person otherwise entitled to review by the administrator under par. (a) may waive a review by submitting to the secretary a written request clearly indicating the intent to waive review and requesting to proceed to a contested case hearing under sub. (6).
SPS 303.06(2)(c) (c) The request for review by the administrator shall be in writing and shall include a statement of the specific reasons why the person believes the division's decision on the petition for variance is incorrect.
SPS 303.06 Note Note: Requests for a review by the administrator may be sent to Administrator, Division of Industry Services, P.O. Box 2658, Madison, WI 53701-2658.
SPS 303.06(2)(d) (d) A review by the administrator shall be denied if the request for review is received more than 30 days after the date of the decision on the petition for variance.
SPS 303.06(2)(e) (e) A review shall be denied, and the petition remanded to staff in the division, if the request for review contains significant new information not considered by the division in making the decision on the petition for variance. The administrator may remand the petition to staff in the division at any point in the review process if significant new information is presented by the petitioner or other persons seeking review by the administrator, and that information was not available to the division at the time of its decision on the petition for variance. Following a remand, the division shall issue a decision on the petition for variance within 30 days after the date the petition for variance is remanded by the administrator. Petitioners and other persons affected by a petition for variance may request a review by the administrator or a hearing by the secretary under this section following a decision by the division on remand.
SPS 303.06(3) (3)Decision.
SPS 303.06(3)(a)(a) If the administrator determines that insufficient reasons are provided in the request for review, the request may be denied. The denial shall be in writing and shall provide the petitioner with the reason for denial and with information about the right to appeal the decision on the petition to the secretary.
SPS 303.06(3)(b) (b) If the administrator grants the request for review, the petitioner shall be notified of the date, time and place where the review will be conducted. The administrator shall schedule the review within 30 business days after the request for review, unless the person requesting the review asks for an extension.
SPS 303.06(4) (4)Review conference.
SPS 303.06(4)(a)(a) If a review is granted, the person requesting the review and any other interested persons shall be provided an opportunity to meet with the administrator to present statements and documents regarding the petition for variance. The administrator may require the attendance of division staff familiar with the basis for the decision on the petition for variance to explain the decision, to comment on the testimony and documents presented by the person requesting review, and to answer questions from the person requesting review.
SPS 303.06(4)(b) (b) The administrator may conduct the review conference personally or may designate one or more persons to review the division's decision on the petition for variance. If a designation is made, the person requesting review shall be notified prior to the review conference who will conduct the conference and who will make the decision following the review conference.
SPS 303.06(4)(c) (c) At the request of the person requesting review, the administrator may issue subpoenas under s. 101.02 (5) (c), Stats., to compel the attendance and testimony of witnesses and the production of documents. The administrator may refuse to issue a subpoena if the information to be provided by the witness or the documents identified in the subpoena will not contribute materially to an effective review of the decision on the petition for variance.
SPS 303.06(4)(d) (d) The administrator may electronically record a review conference. No transcript shall be prepared by the administrator. A person requesting review may, at his or her own expense, provide a court reporter to transcribe the proceedings or any portion thereof.
SPS 303.06(4)(e) (e) The person requesting review, department staff responsible for the decision on the petition for variance, and witnesses called by the person requesting review or department staff shall provide informal statements. There shall be no sworn testimony. The person requesting review and staff designated by the administrator may ask questions of any person making a statement in a review conference. The administrator may limit questions and statements if the information being requested or provided does not contribute substantially to an understanding of the issues involved in the review.
SPS 303.06(5) (5)Decision of the administrator. The administrator shall issue a written decision within 30 business days following the review conference that shall affirm, vacate, or modify the division's decision on the petition for review. The written decision shall inform the person requesting review of the right to appeal to the secretary under this section.
SPS 303.06(6) (6)Hearing by the secretary.
SPS 303.06(6)(a)(a) Any person adversely affected by a decision on a petition for variance may request a hearing by the secretary whether or not that person has first requested a review by the administrator.
SPS 303.06(6)(b) (b) The appeal to the secretary shall be in writing and shall indicate the nature of the person's interest in the petition for variance, the identity of all other known parties who may have an interest in the decision on the petition for variance, and a statement of the reasons why the person believes the division's decision on the petition for variance is incorrect. An appeal may be returned to the petitioner for additional information, however the date the appeal was first received by the secretary shall be the date used to determine the timeliness of the appeal.
SPS 303.06(6)(c) (c) No hearing by the secretary may be held if the request for hearing is received more than 30 days after the date of the division's decision on the petition for variance or the date of the administrator's decision following a review conference, whichever is later. A request for hearing may be denied under the provision of s. 101.02 (6) (g), Stats. A denial of a hearing shall be in writing and shall contain the reasons for the denial and a statement of the person's appeal rights, if any.
SPS 303.06(6)(d) (d) The hearing by the secretary shall be a contested case hearing. The hearing and decision issued after the hearing shall be governed by the provisions of ch. 227, Stats.
SPS 303.06 Note Note: Requests for a contested case hearing may be forwarded to the Department of Safety and Professional Services Legal Counsel, P.O. Box 7190, Madison, WI 53707-7190.
SPS 303.06 History History: Cr. Register, November, 1988, No. 395, eff. 12-1-88; r. and recr. (2) to (6) and r. (7) to (10), Register, September, 2000, No. 537, eff. 10-1-00; CR 05-049: am. (2) (c) Register July 2006 No. 607, eff. 8-1-06; correction in (1) made under s. 13.92 (4) (b) 7., Stats., Register December 2011 No. 672.
subch. II of ch. SPS 303 Subchapter II — Stop Work and Stop Use Procedures
SPS 303.10 SPS 303.10 Purpose. The purpose of this subchapter is to specify procedures used by the division of industry services in the department when issuing stop work orders or stop use orders as part of the division's responsibility to protect public safety and health and the waters of the state. Where statutory provisions specify other procedures for issuing orders for the immediate protection of safety and health, those provisions take precedence over this subchapter.
SPS 303.10 History History: CR 05-049: cr. Register July 2006 No. 607, eff. 8-1-06; correction made under s. 13.92 (4) (b) 6., Stats., Register September 2013 No. 693.
SPS 303.11 SPS 303.11 Scope. This subchapter specifies the reasons and the procedures for issuing a stop work order or stop use order, and the procedures for a review and appeal of the order.
SPS 303.11 History History: CR 05-049: cr. Register July 2006 No. 607, eff. 8-1-06.
SPS 303.12 SPS 303.12 Definitions. In this subchapter:
SPS 303.12(1) (1) "Administrator" means the administrator of the division of industry services in the department, or his or her designee.
SPS 303.12(2) (2) "Department" means the department of safety and professional services.
SPS 303.12(3) (3) "Division" means the division of industry services.
SPS 303.12(4) (4) "Secretary" means the secretary of the department.
SPS 303.12 History History: CR 05-049: cr. 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; correction in (1), (3) made under s. 13.92 (4) (b) 6., Stats., Register September 2013 No. 693.
SPS 303.13 SPS 303.13 Stop work and stop use procedures.
SPS 303.13(1)(1) Reasons for issuance. Pursuant to the statutory goals regarding the protection of public safety and health enumerated under chs. 101, 145 and 167, Stats., the division may, without advance written notice, issue an order to immediately cease any construction, installation, operation, or activity or the use of a building, building component, structure or mechanical device for any of the following reasons:
SPS 303.13(1)(a) (a) There is reasonable cause to believe that the construction, installation, activity, existing condition or method of operation creates an imminent danger to public safety or health as a result of a violation of a statute or administrative rule administered by the division.
SPS 303.13(1)(b) (b) The activity is being performed or conducted by an individual who does not hold the appropriate license, certification or registration as required by statute or administrative rule administered by the division.
SPS 303.13(1)(c) (c) The construction, installation, activity or operation has not been approved or been issued the appropriate permit as required by statute or administrative rule administered by the division.
SPS 303.13(2) (2)Issuance of order.
SPS 303.13(2)(a)(a) A stop work order or stop use order shall be issued only upon the review and approval of the inspector's supervisor.
SPS 303.13(2)(b) (b) A stop work order or stop use order shall be in writing and shall include at least all of the following:
SPS 303.13(2)(b)1. 1. Citation of the administrative rule or rules involved and a description of the rule or rules relationship to the reasons under sub. (1).
SPS 303.13(2)(b)2. 2. Identifying the application and the extent of the order describing the object, component or activity covered by the order.
SPS 303.13(2)(c) (c) A stop work order or stop use order shall include instructions for appealing the order.
SPS 303.13(2)(d) (d) A stop work order or stop use order shall remain in effect until the conditions of the order are fulfilled, or the order is rescinded or overturned under either sub. (3) or (4).
SPS 303.13(2)(e) (e) The division may post a sign or notice to the public regarding the issuance of a stop work order or stop use order. The sign or notice shall be posted in a conspicuous location and shall remain where posted until the conditions of the order are fulfilled, or the order is rescinded or overturned under sub. (3) or (4).
SPS 303.13(2)(f) (f) Relating to the construction of building, a stop work or stop use order may not extend to other activities or portions of a building, structure, building component or mechanical device that is not directly associated with the a reason under sub. (1).
SPS 303.13(3) (3)Review by the administrator.
SPS 303.13(3)(a)(a) The recipient of a stop work order or stop use order or any person who is adversely affected by a stop work order or stop use order may request a review of the order by the administrator.
SPS 303.13(3)(b) (b) A request for a review of a stop work order or stop use order by the administrator shall be in writing and shall include a statement of the specific reasons why the person believes that the issuance of the order is incorrect or inappropriate.
SPS 303.13 Note Note: Requests for a review by the administrator may be sent to Administrator, Division of Industry Services, P.O. Box 2658, Madison, WI 53701-2658.
SPS 303.13(3)(c) (c) The request for a review of a stop work order or stop use order shall be denied if the request for review is received more than 30 days after the date of the order.
SPS 303.13(3)(d)1.1. The administrator shall make a decision on the request to review the issuance of a stop work order or stop use order within 5 business days of receipt of the request.
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