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New L&I rulings on lead, confined spaces, OSHA penalty values and more

Washington State's Department of Labor and Industries has just released important new rulings for the construction industry.

Safety & Health Rules Update — Jan. 21, 2016

Due to pressures from some public health and other stakeholders, the Department of Labor and Industries (L&I) is meeting with stakeholders with the intent that a rule change might be needed.Some are mentioning the need for a lower PEL, or other controls. However, our position is that we need more data to determine if the problem was people abiding by the PEL and still getting overexposed or a plain non-adherence to the rules. We invite all AGC members with any involvement with lead to attend the next stakeholder meeting on January 26th at 9:00 am at L&I headquarters in Tumwater. This meeting will feature a discussion by stakeholders representing the construction industry to talk about current practices.

Click here to see more information on the lead ruling.

On January 13th, the AGC petitioned L&I to change the Washington Administrative Code in relation to work near trolley lines (WAC 296-155-428). Currently, to do work under the trolley lines, a company needs a variance. The variance process is a minimum of 30 days, due to a mandated waiting period, necessary investigation of the need for a variance, and administrative time on applications, etc. Over the last five years, L&I has written well over 25 permanent variances to these rules to various employers so that work can be done. That same week that AGC petitioned L&I, employers began receiving letters rescinding the variances that had been in place, with less than 30 days notice — not allowing enough time to file for new variances before the variance was rescinded.

After conversations with L&I leadership, AGC found that the only workable solution would be to change the rule rather than continue the cumbersome and time-consuming variance process. At this time, L&I will be back to us by March 14th with a plan on how they will address our rulemaking request. AGC suggested that a stakeholder group be formed to work on potential language changes that would eliminate the need for a variance while still maintaining worker safety.

In May of 2015, OSHA published a new Confined Spaces for Construction rule that went into effect on August 3rd, 2015. Per OSHA, Washington State L&I (as a state-plan state) has six months from rule adoption to review our rules and update to be at least as effective as OSHA.

To date, L&I has not been able to put out a comparison document in order to see where our rules will need to be changed. While Washington’s rules were vastly more effective than OSHA until this rule was filed federally, it is concerning to not have a comparison document at this time and no plan on when it will be published to stakeholders and rule adjustments can be made.

This rulemaking effort is going through all WAC codes at L&I to make them easier to read on the many different devices that may be used to search the rules (computer, tablet, phone). This is mainly a rule-formatting effort, but because it adjusts the present formatting of the rules, it is considered rulemaking.

During this effort, meetings are scheduled with interested stakeholders to be sure that rule language and policy are not changed during the process. AGC is keeping an eye on this effort, but is pleased with other sections of the rules that have already been converted to the new format. This should make it much easier to look at rules “on the go.”

In 2015, L&I updated the agency’s penalty-calculation process through rulemaking at the insistence of OSHA, who showed data that Washington State safety penalties were some of the lowest in the country. The rulemaking was completed and went into effect in 2015. Just recently, OSHA announced the intent for an increase their penalties for the first time since 1990. The timeline for this adjustment is before August 1, 2016. If this moves forward, expect to see penalties adjusted in Washington as well.

For more information on these and other Safety & Health rule issues, please call or email Mandi Kime, 206.786.6517).

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