WSR 07-13-054

OFFICE OF THE GOVERNOR


[ Filed June 15, 2007, 9:26 a.m. ]


NOTICE OF APPEAL


RCW 34.05.330(3)

Pursuant to RCW 34.05.330(3), you are hereby notified for publication in the Washington State Register that:

On June 6, 2007, the Governor received an appeal from Timothy Harris of the Building Industry Association of Washington requesting an immediate repeal of the Department of Labor and Industry's Emergency Rule WAC 296-62-095. The Governor's Office denied the Petition on June 12, 2007.

June 12, 2007

Richard E. Mitchell

General Counsel to the Governor

June 12, 2007

Timothy Harris

General Counsel

Building Industry Association of Washington (BIAW)

P.O. Box 1909

Olympia, WA 98507

RE: Petition Requesting Repeal of Emergency Rule WAC 296-62-095

Dear Mr. Harris:

I am responding to your petition under RCW 34.05.350(3) requesting the immediate repeal of the above-referenced emergency rule. Your petition concerns the Department of Labor and Industries' (the "Department") adoption of the heat-related illness rule in the outdoor environment ("Heat Stress Rule" - at WAC 296-62-095) on June 5, 2007, effective June 18, 2007. After careful consideration, I am denying your petition.

RCW 34.05.350 allows for the adoption of a rule on an emergency basis when an agency for "good cause" finds: (1) it is necessary for the preservation of the public health, safety or general welfare, and (2) observing the notice and comment time requirements for the adoption of a permanent rule would be contrary to the public interest. It is my belief that the Department has met its burden under the good cause standard for emergency rules.

In your petition, you state that no emergency exists that would require the adoption of the Heat Stress Rule without notice to the public and an opportunity to provide comments. In support of this position, you note that the Heat Stress Rule is duplicative of other sections of the administrative code; and, in this regard, the Department has fined an employer in violation of at least one of these regulations. You also state that the BIAW and Washington employers were not given adequate notice of the Heat Stress Rule and have not been afforded enough time to meet the rule's requirements. My review of the circumstances and chronology of events concludes that the emergency rule is not duplicative and that more than adequate time has been provided for stakeholder comment.

It is my understanding that the Department felt that the current regulations relating to outdoor work sites were insufficient and provided inadequate worker protection. Moreover, while there are some existing requirements concerning heat stress in place to protect workers, this Heat Stress Rule provides clarity to employers and spells out what is required. It is not merely duplicative. It adds some requirements, such as defining the amount of water required per employee and the kind of training needed. Importantly, in the interest of worker safety, it brings all of the heat stress illness regulations together in one place in order to help employers identify their obligations related to heat stress.

Heat stress is a serious, potentially fatal medical condition affecting Washington's outdoor workers and their families. The Department has indicated that there have been two outdoor heat-related deaths in the past two years and a third death may also be attributed to extreme heat. The Department has also indicated that there have been hundreds of other heat-related illnesses reported over the past ten years and that there may be many other accidents related to extreme temperatures that are not identified as heat-related, such as when a worker faints from heat exhaustion and falls off of a roof and the cause of injury is reported as a fall. In response to these tragedies and illnesses and the immediate need to protect workers, and with the summer fast approaching without consensus on a permanent rule, the Department reasonably believed it necessary to move forward with an emergency rule so that exposed workers would have adequate protections for the summer while a permanent rule was developed.

The Heat Stress Rule is the continuation of work first commenced by the Department in the fall of 2005. After extensive meetings with stakeholders including both labor and business groups, the Department adopted a limited emergency rule before the summer of 2006 and commenced a heat stress awareness education campaign at the same time. Employers were required then, as they are now, to develop and implement a plan to meet the rule's requirements. The Department advised stakeholders that a decision on further rule-making would occur during the fall of 2006. In November 2006, the Department advised stakeholders that it intended to proceed with permanent rule-making and that if progress could not be made on a permanent rule within reasonable time frames, another emergency rule would be considered for the summer of 2007. The purpose of this was and is to allow more time to develop consensus on a permanent rule.

In January 2007, Columbia Legal Services petitioned the Department for a heat-related illness rule and included specific recommendations on a rule. From January to April 2007, the Department drafted, revised and circulated a proposed rule. During this time, the proposed rule was widely distributed to stakeholders for comment. In particular, in February 2007, the Department specifically asked for comments from both labor and business groups, including most of the associations listed on this petition. It held meetings concerning the proposed rule with the WISHA advisory committee, the Puget Sound Safety and Health Partnership, and the AWB Safety Committee. The proposed emergency rule was posted on the Department's public website (including sample documents and training materials) on April 16, 2007, and the draft language was circulated to stakeholders that same day.

On June 1, 2007, the Department met with representatives from BIAW, AWB, and IBA to discuss any concerns. As a result of that meeting, the Department made several changes to the proposed rule:

Delaying the effective date until June 18, 2007;
Adding an exception for incidental exposure;
Clarifying that employers must respond when employees show signs of demonstrated symptoms of heat-stress illness; and
Using non-penalty enforcement procedures through June except where egregious conditions are found (e.g., no worker training and no drinking water provided).

In my opinion, all stakeholders and the regulated employers have had ample notice of the Heat Stress Rule and a reasonable opportunity to prepare to implement its requirements. In 2006, employers had and were required to develop and implement a plan in response to the summer 2006 limited heat stress rule. Those plans need only be updated for the current Heat Stress Rule, plans which I understand the Department has advised stakeholders it will accept. Also, one can see from the above chronology, the Department has not only demonstrated significant effort in observing the notice and comment time requirements for the adoption of a permanent rule, but it has also demonstrated its consideration and inclusion of changes to the emergency rule proposed by some of the signatories to this petition.

I am sure you can agree that Washington's workers and their families cannot afford to go another summer without adequate protections against heat stress. With the hottest months of the year impending, and given the life and death consequences of heat stress, the Department has demonstrated good cause and has not acted arbitrarily or capricously in promulgating the Heat Stress Rule as an emergency rule. In sum, I cannot agree to your request to repeal emergency rule WAC 296-62-095 and am therefore denying it. Thank you for your efforts to ensure that our state's rule-making practices are completed in a manner that does not abuse agency discretion. In the interest of Washington's workers and their families, I invite you to continue to participate in the Department's collaborative process of drafting and adopting a permanent heat stress rule.

Sincerely,

Christine O. Gregoire

Governor

Reviser's note: The spelling error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.

Washington State Code Reviser's Office