WSR 00-05-058

PROPOSED RULES

DEPARTMENT OF

LABOR AND INDUSTRIES

[ Filed February 15, 2000, 10:30 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 99-08-069 on April 5, 1999.

Title of Rule: Administrative rules (inspections and citations, penalties, WISHA appeals, and variances) in chapters 296-27 and 296-350 WAC.

Purpose: We proposed changes to chapters 296-27 and 296-350 WAC for the following reasons:

Some of the rules are outdated and inconsistent with current policy.
Many of the rules are written poorly and thus confusing.
Other rules are unnecessary and should be repealed.
The chapters are poorly organized and contain rules on the same subject in different locations.
Inspections and Citations: The proposed wording simplifies and clarifies current rules for inspections and citations, making them easier to understand. We moved the rules related to inspections from chapter 296-27 WAC into chapter 296-350 WAC, improving the organization and making them easier to find. We repealed unnecessary rules and removed outdated language.

Civil Penalties: The proposed changes include promulgating and revising rules for WISHA's assessment of civil penalties. The civil penalty rules provide employers with advance notice explaining how we calculate penalties. For several years, employers have complained that the penalty assessment process seems arbitrary, mysterious, and unfair. This has led to an increase in WISHA appeals, as well as increased anger towards the regulatory process. Additionally, several judges at the Board of Industrial Insurance Appeals have requested that we adopt WAC rules about how we calculate penalties. The new rules will provide a means to increase the understanding of the process and lessen the confusion surrounding penalties.

WISHA Appeals: Current rules regarding when the department reassumes jurisdiction of citations and notices are written ambiguously. Persons affected by these rules often cannot easily understand their rights or what is expected of them. We wrote these rules in plain language to make them easier to find and understand.

Variances from WISHA Rules: Proposed wording clarifies and simplifies the existing rules, making them easier to understand. We also removed outdated language.

This proposal is part of the agency's implementation of the Governor's Executive Order on Regulatory Improvement (97-02), and part of our effort to improve WISHA safety and health rules. It eliminates outdated and unnecessary rules; makes existing rules much easier to understand; improves the organization of the rules; and gives employers notice of department policies that directly affect them.


Description of changes

General description of changes. These are interpretive rules. The proposed changes include headings to help users find rules more easily. Rules are broken up into small pieces and written in plain language to make them easier to understand. We changed the order of chapter 296-350 WAC so that the rules follow the normal sequence of events.

Inspections and citations
Calculating civil penalties for violations
Extension of abatement dates (no changes included in this proposal)
WISHA appeals
Variances from WISHA rules

Amended Section

Title of chapter 296-350 WAC. Changes to read "WISHA Administrative Rules."

WAC 296-350-010 Definitions. Maintains and clarifies those terms used in proposal. The definitions in this section will apply to all of chapter 296-350 WAC. We removed subsection numbers. The following list describes the changes made in the proposal for the current definitions and the proposed new definitions.

Abatement date. Maintained and clarified this definition. Added reference to corrective notice.
Act. Removed because this word is no longer used.
Assistant director. Removed because this word is no longer used. Replaced with "we," "us," and "our."
Board. Added new definition.
Citation. Changes to "Citation and Notice." Clarified using plain language. Removed form number.
Corrective Notice. Added new definition.
Division. Removed because this word is no longer used. Replaced with "we," "us," and "our."
Interim order. Added new definition.
Permanent variances. Added new definition.
Presiding officer. Removed because this word is no longer used.
Temporary variances. Added new definition.
Variances. Added new definition.
We, us and our. Added new definitions that replaces "assistant director" and division to explain use of first person in proposed new rules.
Working days. Added new definition.
You and your. Added new definitions to explain use of second person in proposed new rules.

Proposed New Sections

Inspections and citations: General information. The current rules related to inspections, located in chapter 296-27 WAC, were adopted in 1981 and 1987, with some changes in 1991 and 1994. The proposal makes these rules much easier to understand and reduces the number of pages by:

Moving rules related to inspections from chapter 296-27 WAC into chapter 296-350 WAC so they will be located with other administrative rules.
Improving the organization and separating into smaller pieces.
Clarifying and explaining the essential rules.
Removing outdated and unnecessary rules.
Incorporating and combining information from WAC 296-350-400 through 296-350-470.
We will repeal WAC 296-27-160 through 296-27-16023 when the new rules are adopted into chapter 296-350 WAC.

WAC 296-350-100 Inspections and citations, general description. Includes reference to the statute that these rules interpret. Includes a reference to no fee consultations and other technical assistance.

WAC 296-350-10010 Selecting workplaces to inspect, describes how WISHA selects workplaces to inspect. Includes some of the existing language in WAC 296-27-16020 (1) and (2) and WAC 296-27-16018(1).

WAC 296-350-10020 Inspections -- Site visit, provides information about a site visit that simplifies existing language in WAC 296-27-16003. Retains information about the physical inspection and whom the department may privately question during an inspection. We removed outdated and unnecessary language from WAC 296-27-16003, making the rules easier to understand.

WAC 296-350-10030 Complaints by employees or employee representatives, clarifies, simplifies, and replaces existing language in WAC 296-350-450, 296-350-460 and 296-350-470, making them easier to understand. Eliminates unnecessary language.

WAC 296-350-10040 Results of a WISHA inspection -- Notice of violations, clarifies, simplifies, and replaces existing language in WAC 296-27-16007, making them easier to understand. Eliminates unnecessary language.

WAC 296-350-10050 Posting a citation and notice, clarifies, simplifies, and replaces existing language in WAC 296-350-400(8), making them easier to understand.

Civil Penalties: General information. The proposal includes new sections covering civil penalties that describe how WISHA calculates penalties for safety and health violations. The proposal incorporates current policy from the WISHA compliance manual into WAC rule. These rules clarify and explain how WISHA calculates and assesses penalties, providing employers notice and improving overall awareness. This proposal allows the opportunity for public comment on these rules and will provide a more stable description of department practice in this area.

WAC 296-350-150 Civil penalties, general description. Includes reference to the statute that these rules interpret.

WAC 296-350-15010 Assessing civil penalties -- Purpose, describes when we assess penalties and explains that we use penalties as incentives to encourage voluntary compliance with WISHA safety and health rules.

WAC 296-350-15015 Minimum penalty amounts, sets minimum penalties.

WAC 296-350-15020 Severity and probability determines base penalties, general descriptions of how base penalties are calculated.

WAC 296-350-15025 Severity, describes severity. Includes a table showing the six levels of severity with the most serious injury, illness, or disease likely to result.

WAC 296-350-15030 Probability, describes probability and what we consider when determining probability. Includes a list of other factors that might be considered to help employers understand the many factors affecting the probability that an injury, illness, or disease might occur.

WAC 296-350-15035 Gravity and base penalties, describes how we calculate base penalties using severity and probability. Includes a table showing gravity and the corresponding penalty amount in dollars. A dollar amount is assigned to each potential gravity.

WAC 296-350-15040 Adjustments to base penalties, describes what we consider when adjusting a base penalty. Possible adjustments include those for an employer's good faith, size, and history. Includes three tables showing the amount a penalty would be adjusted. Includes maximum penalty amount set by statute.

WAC 296-350-15045 Increasing penalty amounts, describes circumstances when we would apply a multiplier to the adjusted base penalty, increasing the penalty. Describes repeat, willful, egregious, and failure to abate violations and includes the multipliers used. Includes maximum penalty amounts set by statute.

WISHA Appeals Process: General information. The current rules were adopted in 1974 with some modification in 1994. The proposal makes these rules easier to understand by: Moving rules related to WISHA appeals after extension of abatement dates in chapter 296-350 WAC so they follow the normal sequence of events; improving the organization and separating into smaller pieces; clarifying and explaining the essential rules; and removing outdated and unnecessary rules.

It is not the intention of this proposal to change our current practice and we will continue to provide good customer service. Particularly since the statute, the existing rules and the proposed rules require us to make a final determination within thirty days of receiving an appeal. We will repeal WAC 296-350-020 through 296-350-095 when the new rules are adopted in WAC 296-350-600 through 296-350-60045 later in this chapter.

WAC 296-350-600 WISHA appeals, general description. Includes reference to the statute that these rules interpret.

WAC 296-350-60010 Filing an appeal -- Who, when and where, clarifies, simplifies, and replaces existing language in WAC 296-350-030, making them easier to understand. Tells who may file an appeal, when an appeal must be filed, and where to file an appeal.

WAC 296-350-60015 What must be in a WISHA Appeal, clarifies, simplifies, and replaces existing language in WAC 296-350-040, making them easier to understand. Describes what must be in an appeal by listing items for employers and employees separately.

WAC 296-350-60020 Why we reassume jurisdiction, clarifies and replaces existing language in WAC 296-350-020, making them easier to understand. The last two bullet points provide more information to better explain this process.

WAC 296-350-60025 Reassuming jurisdiction or forwarding an appeal to the board, clarifies, simplifies, and replaces some of the existing language in WAC 296-350-050 about what happens with your appeal. We also split the current language in WAC 296-350-050. See proposed WAC 296-350-60030.

WAC 296-350-60030 Reviewing appeals and extending review time, clarifies, simplifies, and replaces some of the existing language in WAC 296-350-050 about reviewing and extending department review of your appeal. See proposed WAC 296-350-60025.

WAC 296-350-60035 Informal WISHA conferences, clarifies, simplifies, and replaces existing language in WAC 296-350-070 and 296-350-080(1), eliminating unnecessary wording.

WAC 296-350-60040 Issuing and appealing corrective notices, clarifies, simplifies, and replaces some of the existing language in WAC 296-350-080 and all of WAC 296-350-090.

WAC 296-350-60045 Notifying employees, clarifies, simplifies, and replaces some of the existing language in WAC 296-350-060 and 296-350-080(2). Includes a list of what you must post, that notices must be posted in a conspicuous place, and for how long.

Variances from WISHA Rules: General information. The current rules were adopted in 1974 with the most recent changes made in 1994. Because the current rules are very difficult to understand, it makes it difficult for people to request variances from WISHA rules.

The proposal makes these rules easier to find and understand by:

Moving rules related to variances later in chapter 296-350 WAC so that they are at the end of the chapter and following inspections, penalties, and appeals.
Improving the organization and separating into smaller pieces.
Clarifying and explaining the essential rules.
Removing outdated and unnecessary rules.
We will repeal WAC 296-350-200 through 296-350-280 when the new rules are adopted in WAC 296-350-700 through 296-350-70070 later in this chapter.

WAC 296-350-700 Variance from WISHA rules, general description. Includes reference to the statute that these rules interpret.

WAC 296-350-70010 Purpose of variances, clarifies, simplifies, and replaces the existing language in WAC 296-350-200 and some of WAC 296-350-210. Provides a list.

WAC 296-350-70015 Permanent variances -- Description, clarifies and replaces the existing language in WAC 296-350-210(3).

WAC 296-350-70020 Temporary variances -- Description, clarifies and replaces some of the existing language in WAC 296-350-210 and 296-350-250.

WAC 296-350-70025 Interim orders -- Description and requesting, clarifies and replaces the existing language in WAC 296-350-260 (1) and (2). We combine the description and requesting since there is so little involved in requesting an interim order. Note that the department may issue and interim order even when not requested.

WAC 296-350-70030 Requesting a permanent variance, clarifies, simplifies, and replaces some of the existing language in WAC 296-350-240, 296-350-255, and 296-350-280. Lists what must be in a permanent variance request. Includes a new paragraph that must be included on the first page of your variance application, notifying employees of your application. Also clarifies the cut-off date relating to when the department must receive requests for a variance hearing.

WAC 296-350-70035 Requesting a temporary variance, clarifies, simplifies, and replaces some of the existing language in WAC 296-350-240, 296-350-250, and 296-350-280. Lists what must be in a temporary variance request.

WAC 296-350-70040 Renewing temporary variances, clarifies and puts into rule language in RCW 49.17.080(1) about when you may request a renewal of a temporary variance.

WAC 296-350-70045 Submitting variance requests, clarifies, simplifies, and replaces the existing language in WAC 296-350-250(1), 296-350-255(1), and 296-350-260(1) about how to submit variance requests. Corrects address and name of division.

WAC 296-350-70050 Notifying employees about variance requests, clarifies, simplifies, and replaces some of the existing language in WAC 296-350-250(2), 296-350-255(2), and 296-350-260 about notifying employees before you have requested a variance.

WAC 296-350-70055 Department review and decision, clarifies, simplifies, and replaces the existing language in WAC 296-350-230 and 296-350-270.

WAC 296-350-70060 Your responsibilities once we make a decision, clarifies that employers must notify employees when requesting variances and abide by the requirements specified in the variance. See existing language in WAC 296-350-250(2), 296-350-255(2), and 296-350-260 and chapter 49.17 RCW.

WAC 296-350-70065 Changing a variance, clarifies and puts into rules language from RCW 49.17.080 and 49.17.090 about changing variances. Subsection (4) relates to proposed WAC 296-350-70070 and current WAC 296-350-280 about variance hearings.

WAC 296-350-70070 Variance hearings, clarifies, simplifies, and replaces the existing language in WAC 296-350-280 about variance hearings. Eliminates outdated and unnecessary rules.

WAC 296-27-150 Effective date of regulations, repeal unnecessary section with old effective dates.


Proposed Repealed Sections

WAC 296-27-150 Effective date of regulations, repealed unnecessary section with old effective dates.

WAC 296-27-160 through 296-27-16026, repealed sections related to inspections. Moved essential rules to the beginning of chapter 296-350 WAC (see description of proposed WAC 296-350-100 through 296-350-10050).

WAC 296-350-020 through 296-350-095, repealed sections related to WISHA appeals and reassumptions. Moved essential rules later in this chapter (see description of proposed WAC 296-350-600 through 296-350-60045).

WAC 296-350-200 through 296-350-280, repealed sections related to variances. Moved essential rules later in this chapter (see description of proposed WAC 296-350-700 through 296-350-70070).

WAC 296-350-400 through 296-350-470, repealed sections related to citations and complaints. Incorporated essential rules into proposed WAC 296-350-100 through 296-350-60045 with rules related to inspections.

Statutory Authority for Adoption: RCW 49.17.010, [49.17].040, and [49.17].050.

Statute Being Implemented: Chapter 49.17 RCW.

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 not necessitated by federal law, federal or state court decision.

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

Proposal Changes the Following Existing Rules: See Purpose above.

No small business economic impact statement has been prepared under chapter 19.85 RCW. This proposal contains a set of interpretative rules for chapter 49.17 RCW. Proposed changes do not impose any new costs on employers. Changes explain and clarify current rules using plain language; put current policy in rule; remove outdated and unnecessary requirements; and improve the organization of rules to make it easier to find and understand them.

RCW 34.05.328 does not apply to this rule adoption. This proposal contains a set of interpretative rules (see RCW 34.05.328 (5)(c)(ii) and (iii)). The proposed changes place the agency's current interpretations chapter 49.17 RCW into Washington Administrative Code (WAC) and convert existing policy into rule form as encouraged by the Governor's Executive Order (97-02) on Regulatory Improvement.

No additional burden is placed on any employer by these rules. Nor are any compliance burdens to employers created by these rules.

This proposal clarifies the existing rules using plain language, eliminates outdated and unnecessary rules, improves the organization, and places current policy into rules, making it easier to find and understand the rules.

Hearing Location: Department of Labor and Industries Building, Auditorium, 7273 Linderson Way S.W., Tumwater, WA, on March 23, 2000, at 1:00 p.m.

Assistance for Persons with Disabilities: Call (360) 902-5484 by March 13, 2000, for assistance.

Submit Written Comments to: By mail to Tracy Spencer, Standards Manager, WISHA Services Division, P.O. Box 44620, Olympia, WA 98504-4620, by fax (360) 902-5529 (comments submitted by fax must be ten pages or less), or by electronic mail to Christy Wood, WISHA Standards Project Manager at woch235@lni.wa.gov. Comments must be received no later than March 29, 2000.

Date of Intended Adoption: No earlier than May 1, 2000.

February 15, 2000

Gary Moore

Director

OTS-3697.1


REPEALER

     The following sections of the Washington Administrative Code are repealed:
WAC 296-27-150 Effective date of regulations.
WAC 296-27-160 Safety and health inspections.
WAC 296-27-16001 Definitions.
WAC 296-27-16002 Inspection hours.
WAC 296-27-16003 Inspection format.
WAC 296-27-16004 Interprogram referrals.
WAC 296-27-16007 Citations, penalty assessments and notices of violations.
WAC 296-27-16011 Refusal or limitation of inspection.
WAC 296-27-16018 Compliance inspections.
WAC 296-27-16020 Inspection selection, scheduling criteria, and limit on number of inspections.
WAC 296-27-16022 Unprogrammed inspections, follow-up inspections, monitoring inspections, and "high hazard" inspections.
WAC 296-27-16026 Programmed inspections.

OTS-3696.4

Chapter 296-350 WAC

((REASSUMPTION OF JURISDICTION PURSUANT TO RCW 49.17.140)) WISHA ADMINISTRATIVE RULES


AMENDATORY SECTION(Amending Order 94-07, filed 7/20/94, effective 9/20/94)

WAC 296-350-010
Definitions.

(((1) The definitions and interpretations of RCW 49.17.020 shall apply to the provisions of this chapter unless the context of the provision clearly requires otherwise.

(2) "Presiding officer" means that person designated by the director as being responsible for the conducting of the informal conference provided for in RCW 49.17.140(3) and WAC 296-350-070.

(3) "Act" means the Washington Industrial Safety and Health Act (chapter 80, Laws of 1973; chapter 49.17 RCW) as now or hereafter amended.

(4) "Assistant director" shall mean the assistant director of consultation and compliance of the department, or his/her designated representative.

(5) "Citation" shall mean that CITATION issued to an employer in accordance with the provisions of RCW 49.17.120, otherwise known as a CITATION AND NOTICE. (Form No. WISHERS-110.)

(6) "Abatement date" shall mean the date identified as such on the CITATION. The "abatement date" is the date by which the condition identified in the CITATION must be brought into compliance with the cited safety and health standard.

(7) "Division" shall mean the division of consultation and compliance of the department.)) The following definitions apply to terms used in chapter 296-350 WAC.

Abatement date means the date on the citation when you must comply with specific safety and health standards listed on the citation and notice of assessment or the corrective notice of redetermination.

Board means the board of industrial insurance appeals.

Citation and notice refers to the citation issued to an employer under RCW 49.140.120 for any violations of WISHA safety and health rules, also known as a citation and notice of assessment.

Corrective notice refers to a corrective notice of redetermination issued after we have reassumed jurisdiction over a citation and notice.

Interim order is an order we grant allowing you to vary from WISHA requirements until we have determined whether to grant either a permanent or temporary variance.

Our refers to the department of labor and industries.

Permanent variance is an order we grant allowing you to vary from WISHA requirements when you use alternate means that provides equal worker protection. It is in effect until we modify or revoke it.

Temporary variance is an order we grant allowing you to vary from WISHA requirements under certain circumstances (see WAC 296-350-70020).

Us refers to the department of labor and industries.

Variances refers to any order granted by us allowing you to vary from WISHA safety and health rules, including a permanent variance, temporary variance, or interim order.

We means the WISHA services division of the department of labor and industries and any other divisions charged with enforcing chapter 49.17 RCW, Washington Industrial Safety and Health Act.

Working days mean weekdays that do not fall on state holidays (see RCW 1.16.050 for a complete description of state holidays). State holidays include:

January 1 -- New Year's Day;

Martin Luther King, Jr. Day;

Presidents' Day;

Memorial Day;

July 4 -- Independence Day;

Labor Day;

November 11 -- Veterans' Day;

Thanksgiving Day;

The day after Thanksgiving Day; and

December 25 -- Christmas Day.

You means the employer as defined in RCW 49.17.020.

Your refers to the employer as defined in RCW 49.17.020.

[Statutory Authority: Chapter 49.17 RCW. 94-15-096 (Order 94-07), 296-350-010, filed 7/20/94, effective 9/20/94. Statutory Authority: RCW 49.17.040, 49.17.050, 49.17.240, chapters 42.30 and 43.22 RCW. 80-17-014 (Order 80-20), 296-350-010, filed 11/13/80; Order 75-14, 296-350-010, filed 4/14/75; Order 74-21, 296-350-010, filed 5/6/74.]

INSPECTIONS AND CITATIONS
NEW SECTION
WAC 296-350-100
Inspections and citations.

You will find rules covering WISHA inspections and citations in WAC 296-350-10010 through 296-350-10050. These rules interpret chapter 49.17 RCW. These inspections are distinct from other services provided by us, such as, no fee consultations and other technical assistance.

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NEW SECTION
WAC 296-350-10010
Selecting workplaces to inspect.

(1) Programmed inspections. We identify hazardous workplaces to inspect based on objective criteria. We use inspection, scheduling systems that may look at any of the following:

Type of industry;

Available data of injuries and illnesses where an inspection might eliminate the hazards causing them;

The employer's industrial insurance experience;

The number, type and toxicity of contaminants at the workplace;

The degree of exposure to hazards; and

The number of employees exposed.

(2) We review the scheduling systems periodically, and may adjust the factors used and the weight given to each factor.

(3) We may conduct routine programmed inspections in the following high hazard industries:

Agriculture;

Asbestos renovation and demolition;

Construction;

Electrical utilities and communications;

Logging; and

Maritime.

(4) We conduct "unprogrammed inspections" of workplaces we believe may be in violation of safety or health rules chapter 49.17 RCW, Washington Industrial Safety and Health Act. Unprogrammed inspections may result from:

Complaints from employees, former employees, or employee representatives who believe they are or have been exposed to a hazard because of a violation; or

Referrals from anyone else who reasonably believes workers under our jurisdiction are exposed to a hazard at work because of a violation.

We may also initiate comprehensive inspections based on such investigations.

(5) We investigate workplace deaths and serious injuries or illnesses to determine whether they were caused by a violation of safety or health rules or chapter 49.17 RCW, Washington Industrial Safety and Health Act. We may also initiate comprehensive inspections based on such investigations.

(6) We inspect workplaces when we have reason to believe that employees may be in imminent danger of serious injury or death.

(7) Scheduling of WISHA inspections is intended to distribute available staff as efficiently as possible to ensure the maximum level of worker protection.

(8) We may conduct follow-up inspections to verify that you have abated any hazard for which you were previously cited.

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NEW SECTION
WAC 296-350-10020
Inspections -- Site visit.

(1) During the physical inspection of the workplace, the inspector may:

Take samples, photographs, video tapes, or audio tapes;

Conduct tests;

Have employees wear sampling devices;

Conduct interviews; and

Employ other reasonable investigative techniques.

(2) We can privately question any of the following:

You;

Your representative;

Any owner;

Any operator;

Employee; or

Employee representative.

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NEW SECTION
WAC 296-350-10030
Complaints by employees or employee representatives.

(1) The name of the person who files a complaint with us and the names of any individual employees referred to in the complaint will be removed from the copy of the complaint we give to you, unless the person making the complaint gives us written permission to release the names.

(2) We will provide the results of any complaint inspection to the person making a complaint, or we will inform the person making a complaint if we decide not to conduct an inspection as a result of the complaint.

(3) We will review the decision not to conduct an inspection or not to issue a citation with respect to any violation alleged in the complaint, if requested in writing by the person making a complaint. We will notify the person in writing the results of that review. If complainants are not satisfied after an initial review, they may request that the assistant director for WISHA services or a designee review the file.

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NEW SECTION
WAC 296-350-10040
Results of a WISHA inspection -- Notice of violations.

If we find safety or health violations, we will mail a citation and notice to you no more than six months following the inspection or investigation. The citation and notice will include any violations found, any penalties, and how much time you have to correct the violations. Normally when we do not find any violations, we will send you a citation and notice with a message indicating that no violations were found.

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NEW SECTION
WAC 296-350-10050
Posting a citation and notice.

When you receive a citation and notice or any correspondence related to an employee complaint, you must notify your employees by:

Posting it on your safety bulletin board for three working days or until all violations have been abated, whichever is longer;

Mailing a copy to any authorized representative employees have; and

Using other appropriate means for employees who cannot be expected to receive notice by either of the above methods.

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CIVIL PENALTIES
NEW SECTION
WAC 296-350-150
Civil penalties.

You will find rules covering WISHA's use of civil penalties in WAC 296-350-150 through 296-350-15045. These rules interpret RCW 49.17.180.

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NEW SECTION
WAC 296-350-15010
Assessing civil penalties -- Purpose.

We may assess civil penalties when a citation and notice is issued for any health and safety violations found during an inspection.

We will assess civil penalties when we issue a citation alleging a serious violation, as well as under certain other circumstances specified by statute.

Penalties provide an incentive to correct violations voluntarily before an inspection takes place. The penalty amounts are intended to provide an incentive to both the offending employer and to other employers who may have the same violations in their workplace.

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NEW SECTION
WAC 296-350-15015
Minimum penalty amounts.

Any penalty assessed will be at least $100.

Penalties for willful violations will be at least $5,000 per violation.

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HOW PENALTIES ARE CALCULATED
NEW SECTION
WAC 296-350-15020
Severity and probability determine base penalties.

Except where otherwise specified by statute, we determine the base penalty for a violation by evaluating:

The severity of the injury, illness, or disease that could result from the alleged hazard; and

The probability that an injury, illness, or disease could occur as a result of the alleged hazard.

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NEW SECTION
WAC 296-350-15025
Severity.

Severity rates how serious the injury, illness, or disease might be relative to the hazardous condition. Severity ranges from one (lowest) to six (highest), using whole numbers. Severity is based on the most serious injury, illness, or disease that could reasonably be expected to result from a hazardous condition (see Table 1). We use severity when calculating a penalty. A violation with a severity of 4, 5, or 6 will be a serious violation.

Table 1: Severity Ratings


Severity Most serious injury, illness, or disease likely to result in:
6 Death from injury, illness or disease; injuries involving permanent severe disability; chronic, irreversible illness.
5 Permanent disability of a limited or less severe nature, injuries or reversible illnesses resulting in hospitalization.
4 Injuries or temporary, reversible illnesses resulting in serious physical harm (but less than 5 or 6 above) and may require removal from exposure or supportive treatment without hospitalization for recovery.
3 Injuries or illness would probably not cause death or serious physical harm, but violations have at least major impact and an indirect relationship to serious injury, illness or disease. Violations could have direct and immediate relationship to safety and health of employees. No need for medical treatment.
2 Nonserious or general violations of minor impact, including violations that have an indirect relationship to nonserious injury, illness or disease. No injury, illness or disease without additional violations.
1 No injury, and not likely to result in injury in the presence of other violations.

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NEW SECTION
WAC 296-350-15030
Probability.

Probability rates how likely it is that an injury, illness or disease will occur. It is scored from one (lowest probability) to six (highest probability), using whole numbers. We will consider the number of employees affected when determining probability. Probability does not change the severity.

Other factors we may consider, depending on the situation, include:

Frequency of employee exposure;

Instances (number of time the same violation occurs in the workplace);

How close an employee is to the hazard;

Weather and other working conditions;

Employee skill level;

Employee awareness of the hazard;

The pace, speed, and nature of the task or work;

Use of personal protective equipment;

Amount of exposure (for health violations); and

Other mitigating or contributing circumstances.

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NEW SECTION
WAC 296-350-15035
Gravity and base penalties.

We calculate most base penalties by assigning a weight, called gravity, to a violation. Gravity is calculated by multiplying the severity of a violation (see WAC 296-350-15025) by its probability (see WAC 296-350-15030).


Formula for gravity:


Gravity = Severity x Probability
We use Table 2 to determine the dollar amount for each base penalty. Some rules specify penalty amounts for certain violations.

Table 2: Penalty Amount Using Gravity


Gravity Base Penalty
1 $100
2 $200
3 $300
4 $400
5 $500
6 $1000
8 $1500
9 $2000
10 $2500
12 $3000
15 $3500
16 $4000
18 $4500
20 $5000
24 $5500
25 $6000
30 $6500
36 $7000

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NEW SECTION
WAC 296-350-15040
Adjustments to base penalties.

After determining the base penalty, we consider the employer's good faith, size and history when deciding whether to adjust the penalty amount. No adjustments are made for penalties specified by statute.

(1) Good faith adjustments.

An employer's level of good faith may justify increasing or decreasing the base penalty.

No single factor determines good faith. Good faith is a reflection of your efforts before the inspection to provide a safe and healthful workplace for your employees and your efforts to comply with the standard violated. Your cooperation during the inspection may also be considered to the extent that it reflects your attitude toward complying with the cited standard, including immediate efforts to abate the identified hazard.

Table 3: Good Faith Adjustments


Good Faith Rating Adjustment to base penalty
Excellent 35% reduction
Good 20% reduction
Average no adjustment
Poor 20% increase

(2) Size adjustments.

The number of employees at all of your workplaces in the state of Washington will determine any size adjustments to the penalty amount.

Table 4: Size Adjustments


Number of employees Adjustment to base penalty
1-25 60% reduction
26-100 40% reduction
101-250 20% reduction
>250 no adjustment

(3) History adjustments.

History reflects your record of safety and health violations in the state of Washington, as demonstrated by previous citations and by injury and illness rates.

Table 5: History Adjustments


History Rating Adjustment to base penalty
Good 10% reduction
Average no adjustment
Poor 10% increase

(4) After all adjustments are made, the adjusted base penalty cannot exceed seven thousand dollars per violation. See WAC 296-350-15045 for other potential increases.

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NEW SECTION
WAC 296-350-15045
Increasing penalty amounts.

We apply a multiplier to the adjusted base penalty for the following:

Repeat violations;

Willful violations;

Egregious violations;

Failure to abate a prior violation.

(1) Repeat violations. A repeat violation occurs when we have cited you in the last three years for a similar hazard. The three-year period is measured from the date of the final order for each previous citation. The adjusted base penalty will be multiplied by the total number of inspections with violations (including the current violation) involving similar hazards. The maximum penalty cannot exceed seventy thousand dollars for each violation.

(2) Willful violations. A willful violation is a voluntary action, done either with an intentional disregard of, or plain indifference to, the requirements of the applicable WISHA rule(s). For willful violations, we will multiply the adjusted base penalty by ten, with all willful violations receiving at least the statutory minimum of $5000. The maximum penalty cannot exceed seventy thousand dollars for each violation.

For example: When management is aware that employees are resistant to following specific WAC rules(s); employee resistance results in an imminent danger situation or a serious violation; and management fails to make efforts that are effective in practice to overcome the resistance, then we will presume that the failure constitutes voluntary action.

(3) Egregious violations. An egregious violation may be issued for exceptionally flagrant cases involving willful violations. In these cases, we will issue a separate penalty for each instance when you fail to comply with a particular rule.

(4) Failure to abate violations. Failure to abate is when you have been cited previously for a violation of WISHA rules, but have failed to correct the violation on time (abatement verification is covered in WAC 296-27-210 through 296-27-21050). The maximum penalty cannot exceed seven thousand dollars for each day in which such failure or violation continues.

(a) For a general violation that had no initial penalty and a penalty is to be issued, there will be a minimum penalty of $1000 with possible adjustments for attempts to comply.

(b) For a violation that had an initial penalty:

We multiply the adjusted base penalty by five based on the facts at the time of reinspection with possible adjustments for attempts to comply; or

When the employer has failed to make good faith efforts to abate the violation, we may multiply the adjusted base penalty by the number of days past the abatement date as provided in RCW 49.17.180(4).

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WISHA APPEALS PROCESS
NEW SECTION
WAC 296-350-600
WISHA appeals.

You will find rules covering the WISHA appeals process in WAC 296-350-60010 through 296-350-60045. These rules interpret RCW 49.17.140.

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FILING AN APPEAL
NEW SECTION
WAC 296-350-60010
Filing an appeal -- Who, when and where.

(1) Who may file a notice of appeal?

Any employer cited for a violation of WISHA's safety and health rules may appeal a citation and notice or a corrective notice.

Any employee or employee representative who could be affected by a citation or its abatement may appeal the abatement date on the citation and notice or corrective notice.

(2) When must appeals be filed? Appeals must be filed in writing to the department as a written notice of appeal within fifteen working days of receiving the citation and notice. If you mail your notice of appeal, we will consider the postmark as the date you filed the appeal.

(3) Where must appeals be filed?

Mail to:


Dept. of Labor & Industries

WISHA Appeals

PO Box 44604

Olympia, WA 98504-4604


Fax to: (360) 902-5581.

Bring to: Any department of labor and industries office.

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NEW SECTION
WAC 296-350-60015
What must be in a WISHA appeal.

(1) For employers: Appeals must include:

Business name, address and telephone number, and the name, address and telephone number of any person representing you if you have one;

Citation and notice number;

What you think is wrong with the citation and notice and any related facts; and

How you think it should be changed (what relief you are seeking and why).

(2) For employees: Appeals must include:

The employee's name, address and telephone number, and the name, address and telephone number of any person representing the employee;

Citation and notice number; and

What the employee thinks is wrong with the abatement date.

Note: See WAC 263-12-056 for related board requirements.

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AFTER FILING AN APPEAL
NEW SECTION
WAC 296-350-60020
Why we reassume jurisdiction.

Under RCW 49.17.140(3), we may reassume jurisdiction over any or all issues related to a citation and notice, when it is appealed within fifteen working days. We reassume jurisdiction to:

Provide the employer and affected employees an opportunity to present relevant information, facts, and opinions during an informal conference;

Give the employer, affected employees and the department an opportunity to resolve appeals rapidly and without further contest, especially in routine compliance cases;

Educate employers about the citation and notice, the WISHA appeals process, and WISHA compliance; and

Review citations, penalties, and abatement dates for fairness and accuracy to ensure quality work by the department.

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NEW SECTION
WAC 296-350-60025
Reassuming jurisdiction or forwarding an appeal to the board.

After an appeal is filed, we will decide whether to reassume jurisdiction over the citation and notice being appealed.

If we reassume jurisdiction, we will notify the person filing the appeal in writing.

If we do not reassume jurisdiction, we send the appeal to the board. The board will send the person filing the appeal a notice with the time and location for any board proceedings.

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NEW SECTION
WAC 296-350-60030
Reviewing appeals and extending review time.

(1) Reviewing appeals. When the department reassumes jurisdiction, we have thirty working days after receipt of the appeal to gather more information and decide whether to make changes to the citation and notice. We begin counting the first working day after receipt of the appeal. For example, the first day we count for an appeal received on Friday will be Monday for weeks without state holidays.

(2) Extending review period. We may extend the review period for an appeal up to fifteen additional working days when everyone involved agrees to the extension.

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NEW SECTION
WAC 296-350-60035
Informal WISHA conferences.

During the review period, we will hold an informal conference about the appeal.

The informal conference is not an evidentiary hearing. It is an opportunity for interested parties to briefly explain their positions and provide any additional information they would like us to consider when we review the citation and notice.

Although informal, the conference is an official conference. As such, we may record all or part of it. We will tell participants when recording the conference.

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NEW SECTION
WAC 296-350-60040
Issuing and appealing corrective notices.

(1) Issuing corrective notices. By the end of the review period, we will issue a corrective notice that will reflect any changes we made to the citation and notice. We will send this notice to you and any employee representatives participating in the process.

(2) Appealing corrective notices.

Anyone who may appeal the citation and notice may appeal the corrective notice (see WAC 296-350-10010(1)).

Any appeal of a corrective notice must be filed within fifteen working days of receiving it.

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NEW SECTION
WAC 296-350-60045
Notifying employees.

(1) After filing an appeal, you must post all correspondences with us, including:

The notice of appeal;

The notice telling you we reassumed jurisdiction of a citation and notice;

Any extensions to the review period;

The notice for an informal conference; and

Corrective notices.

(2) You must post notices and information about the appeal in a conspicuous place and where you are required to post WISHA citations and notices (see WAC 296-350-10050).

(3) How long must you post notices? You must post:

The notices of appeal until the appeal is resolved.

Notices about when we reassume jurisdiction and any extension of review period until the end of review period.

Notice of an informal conference until after the conference is held.

Corrective notices for as long as citations and notices are required to be posted.

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VARIANCES FROM WISHA RULES
NEW SECTION
WAC 296-350-700
Variance from WISHA rules.

You will find rules covering variances in WAC 296-350-70010 through 296-350-70070. These rules interpret RCW 49.17.080 and 49.17.090.

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NEW SECTION
WAC 296-350-70010
Purpose of variances.

In certain circumstances, we allow you to deviate from a specific WISHA safety and health standard when you use agency-approved substitute measures to protect workers.

You may request the following as described in WAC 296-350-70015 through 296-350-70025:

Permanent variances.

Temporary variances.

Interim orders.

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NEW SECTION
WAC 296-350-70015
Permanent variances -- Description.

(1) You may request a permanent variance if you can show that you are providing an alternate means of protecting your employees from hazards. These alternative means must be as effective as the methods required by the standard.

(2) We review permanent variances periodically to decide whether they are still needed or need to be changed (see WAC 296-350-70065(1)).

(3) A permanent variance remains in effect unless we modify or revoke it.

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NEW SECTION
WAC 296-350-70020
Temporary variances -- Description.

(1) You may request a temporary variance if you cannot meet one or more WISHA requirements. If you request a temporary variance, you must have an effective plan for coming into compliance with the applicable safety and health standards as quickly as possible because:

Professional or technical people are not available;

Materials or equipment are not available; or

You cannot complete construction or alteration of facilities by the effective date of a standard.

(2) You must show that you are taking all available steps to safeguard your employees against hazards covered by the standard.

(3) Temporary variances remain in effect until you comply with the requirements of current WISHA rules or no longer than one year, whichever is shorter.

(4) You may renew a temporary variance twice for no more than one hundred eighty days each time it is renewed (see WAC 296-350-70040).

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NEW SECTION
WAC 296-350-70025
Interim orders -- Description and requesting.

(1) You may request an interim order when requesting a permanent or temporary variance, or anytime after. Interim orders allow you to vary from existing WISHA requirements until we make a final decision on your variance request.

(2) We may choose to issue an interim order in response to a variance request, even when the interim order was not specifically requested.

(3) Our decision to grant or deny an interim order will not restrict our decision on a permanent or temporary variance request.

(4) Interim orders will be effective until revoked or until we approve or deny your variance request.

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NEW SECTION
WAC 296-350-70030
Requesting a permanent variance.

(1) Request for a permanent variance must be in writing. You must include the following items in your variance request:

Employer name and address;

What work locations and situations that you want the variance to apply to;

The requirements from which you want the variance (be specific and include WAC numbers);

A description of your proposed alternate means of protecting employees from hazards;

How you have notified your employees you are applying for a variance as required in WAC 296-350-70050; and

How you have notified your employees that they may request a hearing. All applications for variances must contain the following notice on the first page, written large enough and clearly enough to be read easily:

"Attention Employees: Your employer is applying to the Department of Labor and Industries for a variance from safety and health standards. You have a right to ask the Department to have a hearing on this application, but you must ask for the hearing in writing by (date**), or the Department may act on this application without a hearing."

** This date must be at least twenty-one calendar days but not more than one month after submitting your variance request.

(2) Department forms for requesting variances are available from any labor and industries office in the state.

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NEW SECTION
WAC 296-350-70035
Requesting a temporary variance.

When requesting a temporary variance, you must include the following items:

All items listed in WAC 296-350-70030, Requesting a permanent variance.

Why you cannot comply with the requirements, including documentation that supports your belief.

What steps you will take to protect your employees until you can comply:

What you are doing to come into compliance; and

When you will be able to come into compliance.

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NEW SECTION
WAC 296-350-70040
Renewing temporary variances.

You must apply for a renewal at least ninety days before the expiration date of the order. To apply for renewal, write to us, explaining why you need more time to come into compliance.

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NEW SECTION
WAC 296-350-70045
Submitting variance requests.

Submit permanent variance, temporary variance, or interim order requests using one of the following:

Mail to:


Assistant Director, WISHA Services Division

P.O. Box 44625

Olympia, Washington 98504-4625


FAX to: (360) 902-5459

Bring to any labor and industries office in the state.

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NEW SECTION
WAC 296-350-70050
Notifying employees about variance requests.

You must notify your employees before requesting a permanent variance, temporary variance, or interim order by:

Posting a copy of the application on your safety bulletin board;

Mailing a copy to any authorized representatives your employees have; and

Using other appropriate means for employees who cannot be expected to receive notice by either of the above methods.

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NEW SECTION
WAC 296-350-70055
Department review and decision.

(1) Review. We will review your request to determine whether to grant a variance to WISHA safety and health rules.

If we need more information, we may contact you or others who may have relevant information.

If we need to visit your workplace, we will contact you to make arrangements.

If you do not provide us with the information we need or do not let us visit your workplace, we will deny your request.

(2) Decision. After reviewing your request, we will issue a written order either granting or denying it.

We will not make a decision before the date for requesting a hearing that is listed on the variance request.

If you have appealed a citation and notice that relates to the subject of the variance request, we may choose not to make a decision until after your appeal is resolved.

If granted, the order will include where it applies, what rules it covers, what you must do instead of following the existing rules, an effective date, and any expiration dates, if applicable. The effective date will be on or after the day we issue the order granting the variance.

If denied, the order will include a brief statement with reason(s) supporting our decision.

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NEW SECTION
WAC 296-350-70060
Your responsibilities once we make a decision.

When you receive a written decision regarding a variance request or interim order, you must:

Notify affected employees using the same means used for the variance application (see WAC 296-350-70050); and

Abide by the requirements specified in any variance. We can issue citations for violations of any variance.

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NEW SECTION
WAC 296-350-70065
Changing a variance.

(1) Permanent variances. We cannot change the terms of a permanent variance for the first six months it is in effect. Any time after six months, we will consider changing the terms of a variance when:

You or your employees request changes; or

We decide that changes may be warranted.

(2) Temporary variances. We will only consider changing a temporary variance as part of the renewal process.

(3) Interim orders. We will not change an interim order.

(4) Hearings. You, your employees, or employee representatives may request a hearing on variance changes as with variance applications (see WAC 296-350-70070).

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NEW SECTION
WAC 296-350-70070
Variance hearings.

(1) Requesting a hearing. You, any affected employee, or an employee representative may request a hearing on a variance request, temporary variance request, or changes to existing variances. All requests must be received in writing, signed by the applicant(s), and must be received by the assistant director within twenty-one calendar days of the date of the application for the variance.

(2) Department notice. We will issue a notice of the hearing ten days after receiving your request advising all interested parties that they will have the opportunity to participate. We will schedule the hearing so that you will receive notice at least twenty calendar days in advance of the hearing date.

(3) Notifying employees. Upon receiving notice of the hearing, you must immediately post copies of the notice, give copies to affected employees and employee representatives, and use any other appropriate means (see WAC 296-350-70050).

(4) Description of hearing. The hearings on variances are "brief adjudicative proceedings" under the Administrative Procedure Act, RCW 34.05.482 through 34.05.494. At the hearing, our representative will explain our view of your request for a variance or any proposed change to a variance. You, your employees, or employee representatives will then have an opportunity to explain your views. Information gathered at the hearing will be used in making a decision about whether to grant or deny the request.

(5) We may tape or record a variance hearing. You may request copies at cost.

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REPEALER

     The following sections of the Washington Administrative Code are repealed:
WAC 296-350-020 Reassumption of jurisdiction -- Purpose.
WAC 296-350-030 Notice of appeal -- Filing and service.
WAC 296-350-040 Notice of appeal -- Contents.
WAC 296-350-050 Reassumption of jurisdiction -- Time -- Notice of reassumption of jurisdiction and informal conference.
WAC 296-350-060 Notices of reassumption of jurisdiction and informal conferences -- Service -- Posting record.
WAC 296-350-070 Reassumption of jurisdiction -- Informal conferences -- Procedure -- Evidence.
WAC 296-350-080 Reassumption of jurisdiction -- Final determination -- Mailing.
WAC 296-350-090 Reassumption of jurisdiction -- Statement of redetermination -- Appeal.
WAC 296-350-095 Settlement agreements.
WAC 296-350-200 Variances -- Foreword.
WAC 296-350-210 Types of orders granting a variance.
WAC 296-350-230 Effect of variances.
WAC 296-350-240 Variance applications -- Form of documents -- Subscription.
WAC 296-350-250 Order granting a temporary variance -- Application.
WAC 296-350-255 Order granting a permanent variance -- Application.
WAC 296-350-260 Interim order -- Application -- Notice of grant.
WAC 296-350-270 Notice of denial of application for variance.
WAC 296-350-280 Hearings on applications for variances -- Temporary and permanent.
WAC 296-350-400 Posting of notices -- Posting of citation and notice -- Availability of act and applicable standards.
WAC 296-350-450 Complaints by employees or their representatives.
WAC 296-350-460 Complaints -- Inspection not warranted -- Informal review.
WAC 296-350-470 Citation not issued following complaint.

Washington State Code Reviser's Office