BILL REQ. #: S-1315.2
State of Washington | 62nd Legislature | 2011 Regular Session |
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) An appeal of any violation classified and cited as serious,
willful, repeated serious violation, or failure to abate a serious
violation does not stay abatement dates and requirements except as
follows:
(i) An employer may request a stay of abatement for any serious,
willful, repeated serious violation, or failure to abate a serious
violation in a notice of appeal under subsection (3) of this section;
(ii) When the director reassumes jurisdiction of an appeal under
subsection (3) of this section, it will include the stay of abatement
request. The redetermination decision issued must include a decision
on the stay of abatement request. The decision on stay of abatement 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. The board of
industrial insurance appeals must conduct an expedited review of a
request for a stay of abatement;
(iii) Affected employees or their representatives must be afforded
an opportunity to participate as parties in an expedited review for
stay of an abatement period; and
(iv) Whenever an expedited review for a stay of abatement is before
the board of industrial insurance appeals, each of the following
factors must be considered prior to rendering a decision on the
requested stay:
(A) Has the employer shown good cause for the stay;
(B) Will the employer suffer irreparable harm absent a stay; or
(C) Will a stay adversely affect the health and safety of workers.
(b) The board of industrial insurance appeals shall develop rules
for conducting an expedited review on any stay of abatement requests
identified in the employer's notice of appeal and shall issue a final
decision within forty-five working days of the board's notice of filing
of appeal. This rule making shall be initiated in 2011.
(5) When the board of industrial insurance appeals denies a stay of
the 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 cost to implement; and
(b) The department must approve the abatement plans and
implementation timelines.
(6) In the event of a final order vacating an underlying violation
for which a stay of abatement was denied by the board of industrial
insurance appeals, the employer may be reimbursed the amount spent on
abatement for the vacated violation when the final order vacating the
underlying violation contains a finding of fact that no hazard exists
and under the following conditions:
(a) The employer may only be reimbursed for reasonable costs for
implementation of approved abatement plans and timelines to the extent
permitted by this subsection.
(b) Any reimbursement must first be applied to offset any
outstanding penalties owed the department for the citation at the time
of the final order. Any remaining reimbursement must be applied next
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. This rule making shall be
initiated in 2011.