Passed by the Senate March 5, 2011 YEAS 47   BRAD OWEN ________________________________________ President of the Senate Passed by the House April 5, 2011 YEAS 55   FRANK CHOPP ________________________________________ Speaker of the House of Representatives | I, Thomas Hoemann, Secretary of the Senate of the State of Washington, do hereby certify that the attached is ENGROSSED SUBSTITUTE SENATE BILL 5068 as passed by the Senate and the House of Representatives on the dates hereon set forth. THOMAS HOEMANN ________________________________________ Secretary | |
Approved April 15, 2011, 2:52 p.m. CHRISTINE GREGOIRE ________________________________________ Governor of the State of Washington | April 15, 2011 Secretary of State State of Washington |
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) 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:
(a) 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;
(b) When the director reassumes jurisdiction of an appeal under
subsection (3) of this section, it will include the stay of abatement
request. The issued redetermination decision will include a decision
on the stay of abatement request. The department shall stay the
abatement for any serious, willful, repeated serious violation, or
failure to abate a serious violation where the department cannot
determine that the preliminary evidence shows a substantial probability
of death or serious physical harm to workers. The decision on stay of
abatement will be 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 shall adopt rules
necessary 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;
(d) Affected employees or their representatives must be afforded an
opportunity to participate as parties in an expedited review for stay
of abatement;
(e) The board shall grant a stay of an abatement for a serious,
willful, repeated serious violation, or failure to abate a serious
violation where there is good cause for a stay unless based on the
preliminary evidence it is more likely than not that a stay would
result in death or serious physical harm to a worker;
(f) As long as a motion to stay abatement is pending all abatement
requirements will be stayed.
(5) When 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 process as the process required
for abatement upon a final order.
(6) The department shall develop rules necessary to implement
subsections (4) and (5) of this section. In an application for a stay
of abatement, the department will not grant a stay when it can
determine that the preliminary evidence shows a substantial probability
of death or serious physical harm to workers. The board will not grant
a stay where based on the preliminary evidence it is more likely than
not that a stay would result in death or serious physical harm to a
worker. This rule making shall be initiated in 2011.