§ 1247-19. Inspection and Duties of the Fire Division and Fire Chief.

In addition to other duties provided under this code, the following duties are assigned to the Cincinnati fire division:

(A)

The fire division shall conduct inspections of workplaces where toxic or hazardous substances are used, manufactured, or stored. The fire division shall not attempt a forcible entry should the employer refuse to consent to such an inspection, but shall seek a proper search warrant. These inspections, which are to be performed not less frequently than annually, shall be for the purpose of determining:

(1)

That toxic or hazardous substances are properly labeled consistent with Section CFPC 1247-9 and the required information is contained on the material safety data sheets;

(2)

That appropriate safety, containment and cleanup equipment is readily available; and

(3)

That the location of toxic or hazardous substances is consistent with the information required under Section CFPC 1247-17.

(B)

The fire division shall accumulate and maintain the following information as received from manufacturers, users, or storers of toxic or hazardous substances in the city of Cincinnati:

(1)

Material safety data sheets provided in accordance with Section CFPC 1247-15; and

(2)

Information as to the exact location of all toxic or hazardous substances which is provided in accordance with Section CFPC 1247-17.

(C)

The fire division shall have the authority to issue citations for any violations of this chapter. In the interest of protecting firefighters, employees in the workplace, and the public, the fire chief or his designee shall additionally have the authority to issue a stop order or orders as provided in Section CFPC 1201-45 of this code.

(D)

The fire division shall investigate, within 72 hours, any complaint in which it is alleged that employees have been ordered to work with substances which are not labeled as required by this chapter or for which material safety data sheets required by this chapter are not accessible to employees.

(E)

The fire chief shall adopt necessary and appropriate practices and procedures to protect information identified, pursuant to Section CFPC 1247-15 and Section CFPC 1247-31, as trade secret from improper use or dissemination beyond the purposes of this chapter.

(F)

The fire chief shall have the power, upon written application by an employer, to authorize variances from labeling provisions of Section CFPC 1247-9, which will not be contrary to the public interest or the intent of this chapter, but only where, (1) owing to special conditions pertaining to a specific employer, workplace or work area, the strict application of this chapter would cause undue or unnecessary hardship, or (2) owing to a preexisting program of an employer designed to inform or protect workers, an employer is in substantial compliance with this chapter.

(1)

No such variance for undue or unnecessary hardship shall be authorized by the fire chief unless the fire chief finds the following facts and conditions exist:

(a)

Exceptional or extraordinary circumstances or conditions apply to the subject employer, workplace or work area; in making a finding on this point, the fire chief shall consider factors, including but not limited to extreme temperature, difficulty of access, lack of a permanent work area or workplace such as at construction or demolition sites, and volatile or rapidly changing conditions in the work area or workplace; and

(b)

The employer establishes, with approval of the fire chief, alternate methods of providing information about the toxic or hazardous substances involved, such as placards, posting signs in common areas or entry areas, and oral and written communication, which shall be substituted for those requirements that are waived and which will result in substantial compliance with the intent of this chapter.

(2)

No such variance for a preexisting program shall be authorized by the fire chief unless the fire chief finds the following facts and conditions exist:

(a)

The program was in existence as of January 1, 1982;

(b)

The labeling in use in the program conveys information in a manner substantially equal to or better than the labeling requirements of the chapter;

(c)

Material safety data sheets which contain the same data as required by this chapter must be readily accessible to workers; and

(d)

The employer must have on file with the fire division an explanation of its program describing its method of labeling and shall conform to the requirements of Section CFPC 1247-19(b).

(3)

In modifying the literal interpretation and strict application of the provisions of this chapter and in authorizing a variance there from the fire chief shall impose such requirements and conditions involved as he may deem necessary in order to carry out the intent and purpose of this chapter, and to otherwise safeguard the public health, safety and general welfare.

(4)

Variances granted pursuant to this section for undue or unnecessary hardship shall expire one year from the date of issuance, but may be renewed by the fire chief upon compliance with all terms of this section. Variances granted pursuant to this section for preexisting programs shall be for a period of five years, after which they shall expire and the employer shall conform to this chapter.

(5)

When an employer files an application for a variance, the employer shall notify its employees of such application by immediately posting a notice of such application. Such posting shall occur in the same manner as provided for in Section CFPC 1247-11.

(6)

Appeals from a decision of the fire chief made under this subsection granting or refusing a variance or any other decision of the fire chief, where such decision is based upon this chapter, may be taken to the city manager by any employer, employee, employee's designated representative or recognized collective bargaining agent who has taken a position on the matter subject to appeal by expressing an opinion in writing to the fire chief prior to his decision. Appeals to the city manager shall be made in writing and filed with the city manager within 30 days from the ruling or the decision of the fire chief. The city manager (or his duly authorized designee, which may include the fire prevention board of appeals) may, in conformity with the provisions of this chapter, reverse or affirm wholly or partly, or may modify the order, requirement, decision, ruling or determination appealed from.

(Ordained by Ord. No. 210-1982, eff. July 3, 1982; repealed and reordained by Ord. No 385-1984, eff. Sept. 6, 1984)