On May 25, 2004, the Governor received a petition from Doug Lydig, Lydig Construction requesting a repeal of an emergency rule adopted on May 5, 2004 by the Department of Labor and Industries, relating to operating dump trucks in reverse.
DATE: May 27, 2004
General Counsel to the Governor May 25, 2004
11001 East Montgomery Drive
Spokane, Washington 99206
Dear Mr. Lydig:
Pursuant to RCW 34.05.350(3), I have reviewed your May 20, 2004 petition requesting the repeal of WAC 296-155-610, concerning operating dump trucks in reverse. I find that the Department of Labor and Industries (L&I) had a proper basis for its decision to adopt this rule on an emergency basis; therefore, I have denied your request for repeal.
RCW 34.05.350 (1)(a) provides that an agency may dispense with rulemaking requirements and adopt a rule on an emergency basis if the "immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest..." I believe these conditions were met.
As noted in your petition, L&I has been working with stakeholders from the construction industry for the last two years to develop comprehensive rules that address dangers to workers in construction traffic zones. Protection from operating dump trucks driving in reverse was included as part of the overall proposal.
In mid January 2004 specific data was available for the first time that showed seventeen fatalities in highway construction work zones between 1998 and 2003. While there were a variety of causes for these fatalities, it was clear that there was a very specific and immediate danger to workers from dump trucks. Six fatalities were the direct result of employees being backed over by dump trucks. In each case these trucks were equipped with a functioning automatic backup alarm and in compliance with existing rules. Two of the six dump truck fatalities occurred in the 2003 highway construction season.
With the rapid approach of the 2004 construction season, the reasonable likelihood of new fatalities, and the knowledge that the full rulemaking on construction traffic zone safety will not be completed until early 2005, L&I's immediate adoption of WAC 296-155-610 is necessary for the preservation of the public health, safety, and general welfare.
With respect to notice of this emergency rule, L&I held a stakeholder meeting on April 16th to discuss the necessity for the emergency rulemaking. Several representatives of the construction industry were in attendance. Additionally, after the meeting, L&I circulated the draft rule, including consensus revisions that emerged from the April 16th meeting, to an even broader group of stakeholders. No comments in opposition were received. Nonetheless, I understand that formal notice to stakeholders concerning the official adoption of this emergency rule was delayed. Accordingly, the department has agreed to suspend enforcement until June 1, 2004 to give employers more time to comply with this rule.
I encourage you to continue working with L&I on the remaining portions of the construction traffic zone safety rules. Thank you for your commitment to safe workplaces.
cc: Dennis Cooper, Code Reviser
Rich Nafziger, Chief Clerk, House of Representatives
Milt Doumit, Secretary of the Senate
Paul Trause, Director, Department of Labor and Industries