(a) Whenever an occupational safety and health standard is in effect under section 4(b)(2) [29 U.S.C. § 653(b)(2)] or section 6 [29 U.S.C. § 655] of the Federal Act, the Board may adopt the standard as the applicable standard for the District by publishing the standard as a rule in accordance with subchapter I of Chapter 5 of Title 2.
(b) Whenever, in the discretion of the Board, it is necessary and proper to promulgate a standard pertaining to an occupational safety and health issue for which there is no established federal standard, or when the Board considers a rule that is different from, but at least as effective as a comparable federal standard and that is necessary to better effectuate the purposes of this chapter, the Board may promulgate, modify, or revoke the occupational safety and health standard in the following manner:
(1) The Board shall publish the proposed standard in the District of Columbia Register and afford interested persons, including employees or their representatives, a period of 30 days after publication of the standard in which to submit to the Board written comments. On or before the final day of the publication period, any interested person may file with the Board written objections to the proposed standard, stating the grounds for objection. The Board shall hold a public hearing upon any objection to a proposed standard and request for public hearing by publishing, within 30 days after the final day for filing objections, a notice in the District of Columbia Register specifying the time and place of the hearing.
(2) Within 60 days after the expiration of the period provided for the submission of written comments under paragraph (1) of this subsection or, if a hearing is held, within 60 days after completion of the hearing, the Board shall issue a rule promulgating, modifying, or revoking a safety or health standard or make a determination that a rule shall not be issued. The rule shall be published in accordance with subchapter I of Chapter 5 of Title 2. The rule may contain a provision delaying its effective date for a period of not more than 60 days to ensure that affected employers and employees are informed of the existence of the rule, its terms, and that affected employers have an opportunity to familiarize themselves and their employees with the existence and terms of the rule.
(3) Whenever practicable, a rule promulgated pursuant to this subsection shall be based upon consideration of the highest safety and health protection standards for the employee, the latest available scientific data in the field, the feasibility of the standards, and experience gained from implementing this and other health and safety laws. In promulgating a rule on toxic materials or harmful physical agents pursuant to this subsection, the Board shall promulgate a rule that most adequately assures, to the extent feasible on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity, even if the employee has regular exposure to the toxic materials or physical agent throughout the working life of the employee. Whenever practicable, the rule promulgated shall be expressed in terms of objective criteria and the performance desired.
(c) Any rule applicable to products distributed or used in interstate commerce shall be identical to the comparable federal standard, unless a variation from the federal standard is required by compelling local conditions and the variation does not unduly burden interstate commerce.
(d) Any rule promulgated by the Board pursuant to this chapter shall prescribe, wherever necessary, all means of informing employees of the hazards to which they are exposed, and require:
(1) Labels and other appropriate forms of warning to ensure that workers understand the nature of the hazards to which they are exposed and precautions for safe use and exposure;
(2) Suitable protective equipment where needed, but not as a substitute for appropriate control techniques;
(3) Suitable technological and control techniques;
(4) Monitoring or measuring employee exposure to toxic materials or harmful physical agents at locations and intervals sufficient to afford protection;
(5) Where appropriate, medical examinations at no cost to the employee, with the results made available to the Mayor and to the Commission when necessary to administer or enforce the provisions of this chapter and to the employee or, at the request of the employee, to the physician of the employee; and
(6) Posting of notices or use of other appropriate means to inform employees of protections and obligations under this chapter, including applicable occupational safety and health rules.
(e) Whenever objections are made to a standard proposed for adoption under subsection (b) of this section, the rule promulgated shall be based upon the record. A person who may be adversely affected by a rule promulgated under paragraph (b)(1) or (2) of this section or under § 32-1109(a) may, at any time prior to 60 days after the rule is promulgated, file a petition challenging the validity of the rule with the District of Columbia Court of Appeals. The filing of the petition shall not, unless ordered by the court, operate as a stay of the rule. The determinations of the Board shall be conclusive if supported by substantial evidence in the record.
(Mar. 16, 1989, D.C. Law 7-186, § 9, 35 DCR 8250.)
Prior Codifications1981 Ed., § 36-1208.
Section ReferencesThis section is referenced in § 32-1105, § 32-1109, § 32-1113, § 32-1114, § 32-1120, and § 32-1121.
References in Text“Section 4(b)(2) or section 6 of the Federal Act” referred to in (a), is 29 U.S.C. § 653 or 29 U.S.C. § 655, respectively.
Editor's NotesSection effective: Section 26 (a) of D.C. Law 7-186 (§ 32-1124(a)) provided that §§ 36-1202, 36-1203, 36-1205 to 36-1223 (§§ 32-1102, 32-1103, 32-1105 to 32-1123, 2001 Ed.), and the repeal of subchapter II of Chapter 2 of Title 36 (Chapter 8 of Title 32, 2001 Ed.) shall apply 2 years after approval of the plan by the Secretary.