BILL REQ. #:  H-1872.1 

READ FIRST TIME 02/17/11.   

     AN ACT Relating to the abatement of violations of the Washington industrial safety and health act during an appeal; and amending RCW 49.17.140.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1   RCW 49.17.140 and 1994 c 61 s 1 are each amended to read as follows:
     (1) If after an inspection or investigation the director or the director's authorized representative issues a citation under the authority of RCW 49.17.120 or 49.17.130, the department, within a reasonable time after the termination of such inspection or investigation, shall notify the employer by certified mail of the penalty to be assessed under the authority of RCW 49.17.180 and shall state that the employer has fifteen working days within which to notify the director that the employer wishes to appeal the citation or assessment of penalty. If, within fifteen working days from the communication of the notice issued by the director the employer fails to notify the director that the employer intends to appeal the citation or assessment penalty, and no notice is filed by any employee or representative of employees under subsection (3) of this section within such time, the citation and the assessment shall be deemed a final order of the department and not subject to review by any court or agency.
     (2) If the director has reason to believe that an employer has failed to correct a violation for which ((a citation has been issued within the period permitted in the citation for its correction, which period shall not begin to run until the entry of a final order in the case of any appeal proceedings under this section initiated by the employer in good faith and not solely for delay or avoidance of penalties)) the employer was previously cited and which has become a final order, the director shall notify the employer by certified mail of such failure to correct the violation and of the penalty to be assessed under RCW 49.17.180 by reason of such failure, and shall state that the employer has fifteen working days from the communication of such notification and assessment of penalty to notify the director that the employer wishes to appeal the director's notification of the assessment of penalty. If, within fifteen working days from the receipt of notification issued by the director the employer fails to notify the director that the employer intends to appeal the notification of assessment of penalty, the notification and assessment of penalty shall be deemed a final order of the department and not subject to review by any court or agency.
     (3) If any employer notifies the director that the employer intends to appeal the citation issued under either RCW 49.17.120 or 49.17.130 or notification of the assessment of a penalty issued under subsections (1) or (2) of this section, or if, within fifteen working days from the issuance of a citation under either RCW 49.17.120 or 49.17.130 any employee or representative of employees files a notice with the director alleging that the period of time fixed in the citation for the abatement of the violation is unreasonable, the director may reassume jurisdiction over the entire matter, or any portion thereof upon which notice of intention to appeal has been filed with the director pursuant to this subsection. If the director reassumes jurisdiction of all or any portion of the matter upon which notice of appeal has been filed with the director, any redetermination shall be completed and corrective notices of assessment of penalty, citations, or revised periods of abatement completed within a period of thirty working days. The thirty-working-day redetermination period may be extended up to fifteen additional working days upon agreement of all parties to the appeal. The redetermination shall then become final subject to direct appeal to the board of industrial insurance appeals within fifteen working days of such redetermination with service of notice of appeal upon the director. In the event that the director does not reassume jurisdiction as provided in this subsection, the director shall promptly notify the state board of industrial insurance appeals of all notifications of intention to appeal any such citations, any such notices of assessment of penalty and any employee or representative of employees notice of intention to appeal the period of time fixed for abatement of a violation and in addition certify a full copy of the record in such appeal matters to the board. The director shall adopt rules of procedure for the reassumption of jurisdiction under this subsection affording employers, employees, and employee representatives notice of the reassumption of jurisdiction by the director, and an opportunity to object or support the reassumption of jurisdiction, either in writing or orally at an informal conference to be held prior to the expiration of the redetermination period. Except as otherwise provided under subsection (4) of this section, a notice of appeal filed under this section shall stay the effectiveness of any citation or notice of the assessment of a penalty pending review by the board of industrial insurance appeals, but such appeal shall not stay the effectiveness of any order of immediate restraint issued by the director under the authority of RCW 49.17.130. The board of industrial insurance appeals shall afford an opportunity for a hearing in the case of each such appellant and the department shall be represented in such hearing by the attorney general and the board shall in addition provide affected employees or authorized representatives of affected employees an opportunity to participate as parties to hearings under this subsection. The board shall thereafter make disposition of the issues in accordance with procedures relative to contested cases appealed to the state board of industrial insurance appeals.
     Upon application by an employer showing that a good faith effort to comply with the abatement requirements of a citation has been made and that the abatement has not been completed because of factors beyond the employer's control, the director after affording an opportunity for a hearing shall issue an order affirming or modifying the abatement requirements in such citation.
     (4)(a) Subject to (b) and (c) of this subsection, an appeal of any violation classified and cited as a serious violation, a willful violation, a repeated serious violation, or failure to abate a serious violation does not stay abatement dates and requirements.
     (b) An employer may request a stay of abatement for any serious, willful, repeated serious, or failure to abate a serious violation in a notice of appeal filed under subsection (3) of this section. When the director reassumes jurisdiction of an appeal under subsection (3) of this section, the director must consider the stay of abatement request. The redetermination decision issued must include a decision on the stay of abatement request. The decision on the stay of abatement request is final unless the employer renews the request for a stay of abatement in any direct appeal of the redetermination to the board of industrial insurance appeals under subsection (3) of this section.
     (c) The board of industrial insurance appeals must conduct an expedited review of any stay of abatement request and must issue a final decision on the request for a stay of abatement within forty-five working days of the employer's notice of filing an appeal. Affected employees or their representatives must be afforded an opportunity to participate as parties in the expedited review. The board of industrial insurance appeals must consider each of the following factors prior to rendering a decision on the requested stay of abatement:
     (i) Has the employer shown good cause for the stay;
     (ii) Will the employer suffer irreparable harm absent a stay; or
     (iii) Will a stay adversely affect the health and safety of workers.
The board of industrial insurance appeals shall develop rules for conducting expedited reviews under this subsection (4)(c). The board shall initiate this rule making in 2011.
     (5) If the board of industrial insurance appeals denies a stay of abatement and abatement is required while the appeal is adjudicated, the abatement process must be the same as the process required for abatement upon a final order with the following exceptions:
     (a) All abatement plans must be submitted to the department with the best available estimates of the cost to implement; and
     (b) The director must approve the abatement plans and implementation timelines.
     (6) If a final order vacates an underlying violation for which the board of industrial insurance appeals denied a stay of abatement and the final order vacating the violation contains a finding of fact that no hazard exists, the department must reimburse the employer for the amount spent on abatement for the vacated violation but only to the extent permitted by this subsection. The employer will be reimbursed only for reasonable costs for implementation of approved abatement plans and timelines and will only be reimbursed as follows:
     (a) Any reimbursement must first be applied to offset any outstanding penalties owed the department for the citation at the time of the final order; and
     (b) Any remaining reimbursement must be applied solely to offset any outstanding debt the employer owes the department.
     (7) The department shall develop rules necessary to implement subsections (4) through (6) of this section. The department shall initiate this rule making in 2011.