WSR 98-18-080

PROPOSED RULES

DEPARTMENT OF

LABOR AND INDUSTRIES

[Filed September 1, 1998, 11:17 a.m.]

Original Notice.

Preproposal statement of inquiry was filed as WSR 98-12-081.

Title of Rule: Chapter 296-27 WAC, Safety Standards for recordkeeping and reporting.

Purpose: Subject of this Rule Making: Abatement verification.

The Department of Labor and Industries is proposing federal-initiated abatement certification procedures that employers must follow to verify that cited violations of workplace safety and health rules have been corrected. The proposed new rules will bring Washington state into compliance with federal requirements adopted last year (as published in Federal Register Volume 62, Number 61, dated March 31, 1997). In keeping with the agency's on-going effort to make WISHA regulations easier to read, understand and voluntarily use, the department has rewritten the regulation in everyday language and in a question and answer format. Because the rewritten state standard proposal provides greater clarity than is in the federal rule, nonmandatory federal Appendix A, Sample Abatement Certification Letter, and Appendix B, Sample Abatement Plan or Progress Report are not proposed for inclusion in the state standard. Federal Appendix C, Sample Warning Tag, is included as Appendix A in the state standard. In addition, the federal rule has been modified to reflect the state, rather than the federal, appeals process. Major provisions of the proposal include:

Abatement Certification: The proposal requires employers to certify in writing when and how all cited violations have been abated.

Additional Documentation: On all willful and repeat violations, the proposal requires employers to submit documentation of abatement such as photographs, receipts for materials purchased, etc. The department may also require employers to provide documentation of abatement on serious violations.

Abatement Plan: The proposal allows the agency to direct employers to prepare abatement plans and to submit progress reports when more than ninety days is allowed to correct the hazard.

Notice to Employees: The proposal spells out procedures for informing affected employees and requires employers to make copies of abatement notices, documentation and abatement plans available to them.

Movable Equipment: When a cited violation relates to equipment that can be moved within or between worksites, the employer is required to attach a copy of the violation or a tag to ensure that employees are aware of the hazardous condition. This notice or tag is to remain on the equipment until the violation is abated and the department notified, or the equipment is removed from service, or the violation is vacated. This requirement applies during any appeal.

NEW SECTIONS

WAC 296-27-21001 What is the purpose of this rule? This federal-initiated proposed new section states that L&I inspections are expected to eliminate violations of the Washington Industrial Safety and Health Act (WISHA) making sure that cited violations have been abated. This section describes

obligations of the employer to certify abatement and to provide additional documentation.

WAC 296-27-21005 When does this rule apply? This federal-initiated proposed new section states that the standard applies to anyone who is cited for a WISHA violation.

WAC 296-27-21010 What definitions apply to this rule? This federal-initiated proposed new section gives definitions of several words or terms used in the standard.

WAC 296-27-21015 What must an employer do when asked to abate a violation? This federal-initiated proposed new section requires employers who are cited to certify to the department that each violation has been abated, within ten calendar days following the abatement date. This section also lists items that are required in the employer's certification that abatement is complete.

WAC 296-27-21020 When must an employer submit additional documentation of abatement? This federal-initiated proposed new section requires employers to submit additional documentation of abatement when the violation is a willful or repeat violation. The department may also require additional documentation for any serious violation when the citation says the documentation is required.

WAC 296-27-21025 When must an employer provide abatement plans? This federal-initiated proposed new section states that the department may require employers to submit abatement plans for cited violations (other than general violations) that take more than ninety calendar days to abate. Abatement plans must be submitted within twenty-five calendar days from the final order date. Required elements of an abatement plan are listed. This section states that the department will write to employers to inform them of inadequate abatement plans and how they are inadequate.

WAC 296-27-21030 When must an employer submit progress reports? This federal-initiated proposed new section states that the department may require employers to submit periodic progress reports for each cited violation. The progress report must identify the action taken to abate the violation and the date the action was taken.

WAC 296-27-21035 What must an employer do to keep employees informed about abatement activities? This federal-initiated proposed new section requires employers to inform affected employees and their representatives about abatement activities covered by this section. Posting requirements are described and require employers use other means of communication to employees and their representatives if posting is not effective. Employers are required to inform employees and their representatives of their right to examine and copy abatement documents. This section also contains time frames within which requests to examine or copy abatement documents by employees or employee representatives must be met.

WAC 296-27-21040 How will the department determine the date that documents are submitted? This federal-initiated proposed new section states that, for mailed documents, the postmark date is the date of submission. For documents transmitted by means other than mail, the date of receipt is the date of submission.

WAC 296-27-21045 What are the requirements related to movable equipment? This federal-initiated proposed new section requires the employer to attach a copy of the violation or a tag to ensure that employees are aware of hazardous condition(s) relating to equipment that can be moved within or between worksites. This notice or tag is to remain on the equipment until the violation is abated and the department notified, or the equipment is removed from service, or the violation is vacated. This requirement applies during any appeal.

WAC 296-27-21050 Appendix A (Non Mandatory) What can a warning tag for movable equipment involved in serious, repeat, or willful violations look like? This federal-initiated proposed section provides a sample of a warning tag for employer reference.

Statutory Authority for Adoption: RCW 49.17.040.

Statute Being Implemented: RCW 49.17.010, [49.17].050, [49.17].060, [49.17].220.

Summary: See Purpose above.

Reasons Supporting Proposal: See Purpose above.

Name of Agency Personnel Responsible for Drafting: Tracy Spencer, Tumwater, (360) 902-5530; Implementation and Enforcement: Michael A. Silverstein, Tumwater, (360) 902-5495.

Name of Proponent: Department of Labor and Industries, governmental.

Rule is necessary because of federal law, 29 CFR 1903.19 (62 Fed Reg. 15324 (1997).

Explanation of Rule, its Purpose, and Anticipated Effects: See Purpose above.

Proposal does not change existing rules.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The economic analysis requirements of the Regulatory Fairness Act do not apply to "rules that only correct typographical errors, or clarify language of a rule without changing its effect" or to rules that adopt or incorporate by reference, without material change, federal statutes or regulations or national consensus codes that generally establish industry standards. Since the proposed amendments adopt federal regulations without material change, correct typographical errors ... and clarify language without changing its effect, a small business economic impact statement is not required.

If a small business economic impact statement is not required, the department must "file a statement citing, with specificity, the federal statute or regulation with which the rule is being adopted to conform or comply, and describing the consequences to the state if the rule is not adopted" (RCW 19.85.061). The Occupational Safety and Health Administration (OSHA) published new regulations addressing abatement verification in 29 C.F.R. Part 1903.19, published March 31, 1997. If the federal requirements are not adopted, the agency's administrative laws on this subject would be in violation of the OSHA Act of 1970, 29 U.S.C. Sec. 657 and Sec. 667 which require Washington's safety and health regulations to be at least as effective as OSHA's. As a result, OSHA may decertify the state's program.

RCW 34.05.328 does not apply to this rule adoption. Significant rule-making criteria do not apply to these new rules because they meet the exempt criteria outlined in RCW 34.05.328 (5)(b)(iii) and (iv). Significant rule-making criteria do not apply when adopting federal regulations without material change.

The rule amendments in this proposal are made as a result of federal adoption of regulations in 29 CFR 1903.19. WISHA is proposing adoption of the federal regulation without material change.

Hearing Location: Department of Labor and Industries Building Auditorium, 7273 Linderson Way, Tumwater, WA, on October 7, 1998, at 1:30 p.m.

Assistance for Persons with Disabilities: Contact Linda Dausener by September 25, 1998, at (360) 902-5516.

Submit Written Comments to: WISHA Services Division, P.O. Box 44620, Olympia, WA 98507-4620, by 5 p.m. on October 14, 1998, or fax to (360) 902-5529 (ten pages or less).

Date of Intended Adoption: December 29, 1998.

September 1, 1998

Gary Moore

Director

NEW SECTION

WAC 296-27-210  Abatement verification.

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NEW SECTION

WAC 296-27-21001  What is the purpose of this rule? Among other purposes, our inspections are expected to result in the elimination of violations under the Washington Industrial Safety and Health Act (WISHA), chapter 49.17 RCW. This section describes how we will make sure that cited violations have been abated. It also describes your obligations as an employer to certify abatement and, in some cases, to provide additional documentation.

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NEW SECTION

WAC 296-27-21005  When does this rule apply? The provisions of WAC 296-27-210 through WAC 296-27-21045 apply to you if we cite you for a WISHA violation.

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NEW SECTION

WAC 296-27-21010  What definitions apply to this rule? Abatement means correcting the cited violation.

Abatement date means the date by which you must correct a violation. It is established by any final order or by an Extension of Abatement Date(s), granting additional time to correct the violation. However, the abatement date established as a result of an order of the Board of Industrial Insurance Appeals remains in effect during any appeal to a court unless the court specifically orders the date to be stayed.

Affected employees means those employees who are exposed to the hazard(s) identified as violation(s) in a citation.

Certification means your written statement describing when and how abatement was achieved.

Department means those portions of the department of labor and industries responsible for enforcing the Washington Industrial Safety Act (WISHA). When this rule refers to "we" or "us," it means the department.

Documentation means material you submit that shows that abatement is complete. This includes, but is not limited to, photographs, receipts for materials and/or labor.

Employer means a business entity having one or more employees. Also, any person, partnership, or business entities with no employees but having industrial insurance coverage is both an employer and an employee. When this rule refers to "you," it means the employer or a designated representative.

Final order means any of the following documents unless you or another party files a timely appeal:

a Citation and Notice;

a Corrective Notice of Redetermination;

a Decision and Order from the Board of Industrial Insurance Appeals;

a Denial of Petition for Review from the Board of Industrial Insurance Appeals; or

a decision from a Washington state superior court, court of appeals, or the state supreme court.

Final order date means the issue date of a final order.

Movable equipment means a hand-held or non-hand-held machine or device, powered or unpowered, that can be moved within or between worksites.

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NEW SECTION

WAC 296-27-21015  What must an employer do when asked to abate a violation? (1) Within 10 calendar days after the abatement date, you must certify to us that each violation has been abated. Exception: You do not need to certify abatement if our compliance officer indicates in the citation that he or she observed abatement.

(2) Your certification that abatement is complete must include the following:

Your name and address;

The inspection number to which your certification applies;

The citation and item numbers to which your certification applies;

The date and method of abatement of each violation;

A statement that affected employees and their representatives have been informed of the abatement of each violation;

A statement that the information submitted is accurate; and

Your signature (or that of your authorized representative).

(Note: For extension of abatement date(s), see the WAC 296-350-350 series.)

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NEW SECTION

WAC 296-27-21020  When must an employer submit additional documentation of abatement? For each willful or repeat violation, you must submit to us additional documentation demonstrating that abatement is complete. You must also submit this documentation for any serious violation when we require you to do so in the citation. Such documentation may include, but is not limited to, evidence of the purchase or repair of equipment, photographic or video evidence of abatement, or other written records.

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NEW SECTION

WAC 296-27-21025  When must an employer provide abatement plans? (1) When the time permitted for abatement is more than 90 calendar days, we may require you to submit an abatement plan for each cited violation other than general violations. If we require an abatement plan, the citation must say so.

(2) When the citation indicates that an abatement plan is required, you must submit the plan within 25 calendar days from the final order date.

(3) Your abatement plan must

identify the violation;

list the steps you will take to correct the violation;

include a schedule to complete the steps; and

describe how employees will be protected until abatement is complete.

(4) If we find your plan inadequate, we must inform you in writing and indicate how your plan is inadequate.

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NEW SECTION

WAC 296-27-21030  When must an employer submit progress reports? (1) If you are required to submit an abatement plan, we may also require you to submit periodic progress reports for each cited violation. Our citation will include:

The citation items for which periodic progress reports are required;

The date on which an initial progress report must be submitted (no sooner than 30 calendar days after you submit an abatement plan);

Whether additional progress reports are required; and

The date(s) on which you must submit any additional progress reports.

(2) For each violation, your progress report must briefly identify the action taken to achieve abatement and the date the action was taken. A single sentence should normally be adequate for each violation.

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NEW SECTION

WAC 296-27-21035  What must an employer do to keep employees informed about abatement activities? (1) You must inform affected employees and their representative(s) about abatement activities covered by this section by posting a copy of each document you submit to us or a summary of the document near the place where the violation occurred.

(2) Where such posting does not effectively inform employees and their representatives about abatement activities (for example, if you have mobile work operations), you must:

Post each document or a summary of the document in a location where it will be readily observable by affected employees and their representatives; or

Take other steps to communicate fully to affected employees and their representatives about abatement activities.

(3) You must inform employees and their representatives of their right to examine and copy all abatement documents submitted to the department.

(4) You must comply with any request by an employee or employee representative to examine and copy abatement documents within 5 days of receiving the request, if the employee or employee representative makes the request within 3 working days of receiving notice that the documents have been submitted to us.

(5) You must ensure that notice to employees and employee representatives is provided on or before the date you provide the information to us.

(6) You must ensure that these abatement documents remain posted for at least three working days after you submit them to us and that they are not altered, defaced, or covered by other material.

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NEW SECTION

WAC 296-27-21040  How will the department determine the date that documents are submitted? The date of postmark is the date of submission for documents you send by mail. For documents you transmit by other means, the date we receive the document is the date of submission.

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NEW SECTION

WAC 296-27-21045  What are the requirements related to movable equipment? (1) For serious, repeat, and willful violations involving movable equipment, you must attach a warning tag or a copy of the citation to the operating controls or to the cited component of equipment if the violation has not already been abated. You must do this for hand-held equipment immediately after you receive the citation, and you must do this for other equipment before moving it within the worksite or between worksites.

(2) You must use a warning tag that properly warns employees about the nature of the violation involving the equipment and that tells them where the citation is posted. Non-Mandatory Appendix A contains a sample tag that you may use to meet this requirement.

(3) For the construction industry, a tag designed and used in accordance with WAC 296-155-300(8) and WAC 296-24-14011 meets the requirements of this section when the information required by subsection (2) above is included on the tag.

(4) You must make sure that the tag or copy of the citation attached to movable equipment is not altered, defaced, or covered by other material.

(5) You must make sure that the tag or copy of the citation attached to movable equipment remains attached until:

You have abated the violation and you have submitted all abatement verification documents required by this regulation to us;

You have permanently removed the cited equipment from service;

You no longer have control over the cited equipment; or

A final order vacates the violation.

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NEW SECTION

WAC 296-27-21050  Appendix A (Non Mandatory) What can a warning tag for movable equipment involved in serious, repeat, or willful violations look like? You may use a warning tag similar to the sample shown below. You must make sure the warning tag meets the requirements of and is used in accordance with the requirements of WAC 296-27-21045.

SAMPLE WARNING TAG

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