The applicant has failed to prove by a preponderance of the evidence that the conditions, practices, operations or processes proposed to be used by the applicant shall provide employment which is as safe and healthful as that obtained by compliance with the rule. Applicant proposes to use a John Deere 350D crawler tractor manufactured in 1988 in certain applications with the ROPS structure removed. Any employer may apply for variance for any rule which specifically affects work conditions. Applicant contends that a variance is required in order to complete stream channel maintenance under certain bridges with minimal clearance. There is no dispute that the John Deere 350 with the ROPS assembly attached will not pass under the bridges specified in the application.
Applicants request for a variance is in compliance with the administrative rules.
An application for permanent variance can be granted only if the applicant demonstrates that the condition, practices, operations or processes proposed to be used by the applicant shall provide employment which is as safe and healthful as that obtained by compliance with the rule. Applicant states the alternate protection would be that no operation would be allowed where the grade could cause a complete overturn or on grades where the slope exceeded 10 to 12 feet. The operator would level the grade at the entry location and the canopy would not be removed until the crawler tractor was working in the stream bed and only after they had created a level, stable place for the tractor to work. Furthermore, the tractor would not transverse the grade but rather, would proceed straight up the grade and that the ROPS canopy would be placed back on the tractor upon exiting the stream. Additionally, the crew supervisor and the operator would jointly review, inspect and evaluate each job site before any equipment work is commenced.