DEPARTMENT OF LABOR

Occupational Safety and Health Administration

Washington State Standards; Notice of Approval

1. Background

Part 1953 of Title 29, Code of Federal Regulations, prescribes procedures under Section 18 of the Occupational Safety and Health Act of 1970 (hereinafter called the Act) by which the Regional Administrator for Occupational Safety and Health (hereinafter called Regional Administrator) under a delegation of authority from the Assistant Secretary of Labor for Occupational Safety and Health (hereinafter called the Assistant Secretary) (29 CFR 1953.4) will review and approve standards promulgated pursuant to a State plan which has been approved in accordance with Section 18(c) of the Act and 29 CFR Part 1902. On January 26, 1973, notice was published in the Federal Register (38 FR 2421) of the approval of the Washington plan and the adoption of Subpart F to Part 1952 containing the decision.

The Washington plan provides for the adoption of State standards that are at least as effective as comparable Federal standards promulgated under Section 6 of the Act. Section 1953.20 provides that where any alteration in the Federal program could have an adverse impact on the at least as effective as status of the State program, a program change supplement to a State plan shall be required.

By letter dated August 17, 1990, from Joseph A. Dear, Director, to James W. Lake, Regional Administrator, the State submitted on its own initiative amendments comparable to 29 CFR 1910.1045, Acrylonitrile. The State repealed WAC 296-62-07341 and re-issued the standard as WAC 296-62-07336, adding four non-mandatory appendices identical to the Federal. The state amendments were adopted in Administrative Order 88-04 on May 11, 1988, effective June 10, 1988. The re-numbered standard retained the substantive amendments to made to WAC 296-62-07341 in 1986: fifteen day notification of a regulated area, twenty-four hour notification of an emergency release, weekly surveys, air supplied respirators, prohibition of the use of compressed air and dry sweeping, and provisions for lunchrooms. These substantive changes were adopted by the state in Administrative Order 86-28 on July 25, 1986, effective August 25, 1986. This standard was originally approved in the Federal Register (44 FR 65485) on November 13, 1979.

Also by letter dated August 17, 1990, the State on its own initiative submitted amendments comparable to 29 CFR 1910.1044, 1, 2-dibromo-3-chloropropane (DBCP). The state repealed WAC 296-62-07345 and re-issued the standard as WAC 296-62-07342, adding three non-mandatory appendices identical to the Federal. The state amendments were adopted in Administrative Order 88-04 on May 11, 1988, effective June 10, 1988. The re-numbered standard retained substantive amendments adopted in Administrative Order 86-28 on July 25, 1986. This standard was originally approved in the Federal Register (47 FR 26949) on June 22, 1982.

In response to Federal standards changes, and on its own initiative, the State submitted by letters from Mark O. Brown, Director, to James W. Lake, Regional Administrator, State standard amendments comparable to 29 CFR 1910.1027, 29 CFR 1915.1027 and 29 CFR 1926.1127, and 29 CFR 1928.1027, Occupational Exposure to Cadmium. The Federal initiated standards and corrections were published in the Federal Register on September 14, 1992, final rule (57 FR 42102); and April 23, 1993, corrections (58 FR 21778). A State initiated change omitted the printing of the entire Appendix F, "Nonmandatory Protocol for Biological Monitoring." Instead, Appendix F is available upon request. The changes and corrections were adopted in Administrative Order 93-01 on March 13, 1993, effective April 27, 1993; Administrative Order 93-06 on October 20, 1993, effective December 1, 1993; and Administrative Order 94-07 on July 20, 1994 effective September 20, 1994.

In response to Federal standard changes, and on its own initiative the state submitted by letter dated February 14, 1995 from Mark O. Brown, Director, to Richard Terrill, Acting Regional Administrator, state standard amendments comparable to 29 CFR 1910.146, Permit Required Confined Space. The Federal initiated standards and corrections were published in the Federal Register on January 14, 1993, Final Rule (58 FR 4462); June 29, 1993, Corrections (58 FR 34844); and May 19, 1994, Technical Amendments (59 FR 26114). The significant state initiated change expanded the scope and application of the OSHA General Industry Permit Required Confined Space standard to cover employees in all industries. The changes, corrections and technical amendments were adopted in Administrative Order 94-14 on January 18, 1995, effective March 1, 1995.

All of the administrative orders were adopted pursuant to RCW 34.04.040(2), 49.17.040, 49.17.050, Public Meetings Act RCW 42.30, Administrative Procedures Act RCW 34.04, and the State Register Act RCW 34.08.

2. Decision

OSHA has determined that the State standard amendments for acrylonitrile, 1,2-dibromo-3-chloropropane, and confined space are at least as effective as the comparable Federal standards, as required by Section 18(c)(2) of the Act. The acrylonitrile and DBCP amendments have been in effect since June 10, 1988, and the confined space amendments have been in effect since March 1, 1995. During this time OSHA has received no indication of significant objection to these different state standards either as to their effectiveness in comparison to the Federal standards or as to their conformance with product clause requirements of section 18(c)(2) of the Act. (A different state standard applicable to a product which is distributed or used in interstate commerce must be required by compelling local conditions and not unduly burden interstate commerce.) OSHA has also determined that the differences between the state and Federal amendments for cadmium are minimal and that the state amendments are thus substantially identical. OSHA therefore approves these amendments; however, the right to reconsider this approval is reserved should substantial objections be submitted to the Assistant Secretary.

3. Location of Supplement for Inspection and Copying

A copy of the standards supplement, along with the approved plan, may be inspected and copied during normal business hours at the following locations: Office of the Regional Administrator, Occupational Safety and Health Administration, 1111 Third Avenue, Suite 715, Seattle, Washington 98101-3212; State of Washington Department of Labor and Industries, 7273 Linderson Way, S.W., Tumwater, Washington 98501; and the Office of State Programs, Occupational Safety and Health Administration, Room N-3476, 200 Constitution Avenue, NW., Washington, D.C. 20210. For electronic copies of this Federal Register notice, contact OSHA's Web Page at http://www.osha.gov/.

4. Public Participation

Under 29 CFR 1953.2(c), the Assistant Secretary may prescribe alternative procedures to expedite the review process or for other good cause which may be consistent with applicable laws. The Assistant Secretary finds that good cause exists for not publishing the supplement to the Washington State Plan as a proposed change and making the Regional Administrator's approval effective upon publication for the following reasons:

1. The standard amendments are as effective as the Federal standards which were promulgated in accordance with the Federal law including meeting requirements for public participation.

2. The standard amendments were adopted in accordance with the procedural requirements of State law and further public participation would be repetitious.

This decision is effective January 22, 1997.

(§ 18, Pub. L. 91-596, 84 STAT. 6108 [29 U.S.C. 667]).

Signed at Seattle, Washington, this 26th day of November 1996 .

Carl A. Halgren,
Acting Regional Administrator.

[FR Doc. 97-1280 Filed 1-21-97; 8:45 am)