STATE OF WISCONSIN
Department of Safety and Professional Services
IN THE MATTER OF RULEMAKING
PROCEEDINGS BEFORE THE
DEPARTMENT OF SAFETY AND
PROFESSIONAL SERVICES
ORDER OF THE DEPARTMENT OF SAFETY
AND PROFESSIONAL SERVICES,
ADOPTING RULES
CLEARINGHOUSE RULE 14-060
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ORDER
An order of the Department of Safety and Professional Services to
repeal SPS
332.05 (3) and (4),
332.06, 332.11 (2), 332.16 (3), 332.22 (1) (b) and (2) (a),
332.26
(1)
, 332.28 (1) and (2),
332.32 (2),
332.35,
332.36,
332.38 (1) and (2), 332.39,
and
332.50
(1)
and Table 332.50-2;
to renumber SPS 332.01 (8) (a) to (e), 332.205,
332.22 (1) (a) and (2) (b)
, and 332.32 (1)
;
to renumber and amend SPS 332.01 (8) (intro.)
, 332.10,
332.11 (1)
,
332.22 (2) (intro.)
,
332.26 (intro.),
332.40
,
and
332.50
(2)
and
Table 332.50-1
;
to consolidate, renumber, and amend SPS 332.23 (intro.) and (1); 332.25 (intro.) and (1); 332.28 (intro.) and (3); 332.30 (intro.) and (1); 332.32 (intro.) and (1);
332.37 (intro.) and (1)
; and
332.38 (intro.) and (3)
;
to amend SPS 332.003 (1); 332.05 (1) (intro.) and (a); 332.16 (14) and (16); 332.29 (intro.), (1), and (2); 332.33 (intro.);
and
332.34 (intro.) and (2)
;
to repeal and recreate SPS 332.002, 332.003 (2), 332.01 (1) and (5) to (7), 332.05 (2), 332.21, and 332.24; and
to create SPS 332.003 (3), 332.01 (8) and (9), and 332.205 (3),
relating to
public-
employee safety and health
standards
.
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ANALYSIS
Statutes interpreted:
Statutory authority:
Explanation of agency authority:
Section
101.055 (3)
of the Statutes
requires the Department to
adopt, by rule, standards to protect the safety and health of public employees. The standards must provide protection
that is
at least equal to
the protection which is
provided to private-
sector employees under standards promulgated by the federal
O
ccupational
S
afety and
H
ealth
A
dministration
(OSHA)
and must be revised as necessary to maintain that
equivalent
protection
,
except definitions for toxic substances cannot be based solely on the federal registry of toxic effects of chemical substances.
Section
227.11 (2) (a)
authorizes the Department to promulgate rules interpreting any statute that is enforced or administered by the Department, if the rule
s
are
considered necessary to effectuate the purpose of the statute.
Related statute or rule:
Section
101.02 (15) (j)
of the Statutes
requires the Department to promulgate rules for cons
tructing
,
altering, adding to,
repair
ing, and maintaining
safe
public buildings and
places of employment.
Under this authority, the Department has promulgated chapters SPS 361 to 366
, which establish statewide, uniform requirements
for
design,
construction
,
maintenance, and repair
of
public buildings and places of employment
–
and chapter SPS 314
,
which establishes statewide minimum requirements
for preventing
unwanted
fire
s
in public buildings and places of employment.
Chapter
SPS
330
contains Wisconsin’s statewide
safety and health
requirements for
public-sector
fire department employees
.
Th
at chapter
appl
ies
to those employees in addition to the requirements in chapter
SPS 332
.
Plain language analysis:
These
proposed changes to chapter SPS 332
would
primarily
incorporate the July 1, 2010, editions o
f the following OSHA standards
as replacements to the currently incorporated July 1, 20
03, editions of these standards:
•
Title
29 of the
Code of Federal Regulations
,
Part 1904
–
Recording and Reporting Occupational Injuries and Illnesses.
•
29 CFR 1910
–
Occupational Safety and Health Standards.
•
29 CFR 1915
–
Occupational Safety and Health Standards for Shipyard Employment.
•
29 CFR 1917
–
Occupational Safety and Health Standards for Marine Terminals.
•
29 CFR 1926
–
Occupational Safety and Health Regulations for Construction.
•
29 CFR 1928
–
Occupational Safety and Health Standards for Agriculture.
These 2010
OSHA
editions contain
numerous
revisions to the 2003 editions. Many of these revisions simply improve clarity
and consistency;
correct errors;
update cross-references to other industry standards
;
and
add
new
cross-references to
other
contemporary
industry
standards
.
Other revisions that are more substantive include (1)
establishing the employer’s responsibilities to provide personal protective equipment and training
;
(2)
considerably reducing the permissibl
e exposure limit for hexavalent-
chromium compounds, from 0.5 to 0.005 mg/m
3
;
(3)
changing the
repeat-
exposure monitoring
periods
for
acrylonitrile,
vinyl chloride
, 1-2-dipromo-3-chloropropane, and cotton dust;
(
4
)
changing
the employer’s responsibility for exposure-monitoring notification for
acrylonitrile,
vinyl chloride,
1-2-dipromo-3-chloropropane,
coke-oven emissions,
and
cotton dust
; (
5
) lengthening the cycle for updating the compliance program for inorganic arsenic, vinyl chloride, 1-2-dipromo-3-chloropropane, and coke-oven emissions; (
6
) lengthen
ing
the minimum timeframe for medical examinations for vinyl chloride and coke-oven emissions; (6)
replacing general fire-prevention provisions for shipyards with comprehensive fire-protection provisions; and (7) reinstating roll-over protective-structure provisions from 1996 for tractors used in agricultural operations.
These proposed rule changes would also
clarify
and update
the chapter’s scope, application, definitions
, inspection
criteria, and incorporation-of-standards
provisions
– and
would
update
the Department’s current modifications of the incorporated OSHA standards.
Th
e
s
e
update
s to these modifications
include
(1)
improving the clarity
,
cons
istency
, format, and organization
of these modifications; (2)
clarifying which safety vests or other clothing provide adequate visibility protection
for
roadway workers;
(3) clarifying that traffic-control devices for warning traffic and protecting roadway workers are required
by other authorities
to comply with the Uniform Traffic Devices Manual produced by the American Traffic Safety Services Association; (4)
replacing th
e additional criteria for securing the footing of
ladder
s
,
with
reference to
the standards that are available from the American National Standards
Institute
for construction and use of portable ladders;
(5)
repealing
the ventilation requirements that
overlap with the design requirements in
Wisconsin’s
u
niform Commercial Building Code
;
(6) replacing the plan submittal requirements for spray booths with an informational Note that refers to the corresponding building-design requirements in the Commercial Building Code;
(7
) clarifying
the first-aid and resuscitation training that is
acceptable
for
work
in confined spaces
;
(8) repealing the
additional criteria
for sampling devices and air monitoring
,
for confined spaces;
(
9
)
clarifying which emergency eyewash and shower facilities provide adequate protection for exposure to materials that are corrosive or can cause irreversible eye or body injury
;
(10)
replacing
the
additional
requirements
that overlap with
the requirements in
chapter SPS 314
for separating incompa
tible materials from each other
, with a revised
informational Note that refers to SPS 314
;
(1
1
) no longer replacing the air-contaminant maximums in
29 CFR 1910
with the maximums from the 1992 edition
of
29 CFR 1910
, and no longer requiring the addit
ional monitoring relating to those
1992 maximums; (12
)
requiring dump bodies of all vehicles,
rather than
just on trucks,
to have a locking mechanism for
prevent
ing
accidental lowering of the body while maintenance or inspection work is being done or while the
vehicle is left unattended; (1
3
) repealin
g the additional requirements for
provid
ing
guarding along the edge of an excavation;
and
(1
4
) repealing the additional requirements to provide yellow warning lights for ni
ghttime exposure to excavations.
Summary of, and comparison with, existing or proposed federal regulation:
In Wisconsin,
OSHA
applies
its
above
requirements
to private-sector employees but not to public-sector employees
.
The requirements in chapter SPS 332 apply
to public-sector employees but not to private-sector employees. Consequently, although the two sets of requirements are
nearly
but not entirely
identical
, they do not overlap
in where
or how
they apply
.
This update of chapter SPS 332 does not include consideration of any changes to the above OSHA standards that have occurred after July 1, 2010. The Department plans to consider those changes during its next update of this chapter.
Comparison with rules in adjacent states:
An Internet
-based
search of state-level rules for
public-
employee safety and health standards
in the adjacent states yielded the following results:
Illinois:
The Illinois Department of Labor
mostly
adopts
the
OSHA standards
without any modifications,
for protecting
all
public-sector employees
in the state
, but
has a unique standard
for
r
ecordkeeping
.
OSHA has approved the Illinois State Plan,
as established under section 18 of the federal Occupational Safety and Health Act of 1970,
but
maintains
jurisdiction over all private-sector workplaces, federal agencies,
maritime employers (e.g., shipyards, marine terminals, and longshoring)
, military facilities,
Indian-
sovereignty workplaces,
and the United States Postal Service.
The agency’s website is at
http://www.illinois.gov/idol/Laws-Rules/safety/Pages/default.aspx
.
Iowa:
The
Iowa Division of Labor Services administers the OSHA-approved
Iowa State Plan
, which
applies to all public and private sector workplaces
in the state
,
with the exception of private-sector maritime activities, marine terminals, and longshoring; federal-government-owned and contractor-operated military facilities; bridge construction projects spanning the Mississippi and Missouri Rivers between Iowa and other states; federal government employers and employees; and the United States Postal Service (these fall under OSHA jurisdiction). The State Plan
includes the following state-specific standards in addition to the OSHA standards: Sanitation and Shelter Rules for Railroad Employees
,
Hazardous Chemical Risks Rig
ht to Know –
General Provisions, Community Right to Know,
Public Safety/E
mergency Response Right to Know,
and Asbestos Removal and Encapsulation.
The agency’s website is at
http://www.iowaworkforce.org/labor/iosh/index.html
.
Michigan:
The Michigan Occupational Safety and Health Administration (MIOSHA
)
administers t
he
OSHA-approved
Michigan State Plan
, which
applies to all places of employment in the state
, with the exception of federal-
government employees, the United States Postal Service, maritime and mining activities,
and domestic employment, which are subject to OSHA jurisdiction.
MIOSHA has adopted most
of the OSHA standards by reference, but
has a unique standard for child labor
.
The agency’s website is at
http://www.michigan.gov/lara/0
,4601,7-154-10603-42245--,00.html
.
Minnesota:
The Minnesota Occupational Safety and Health Administration (MNOSHA)
administers the
OSHA-approved Minnesota State Plan
, which
applies to all places of employment in the state, with the exception of federal government employees, the United States Postal Service, and certain agricultural operations (those pertaining to the field sanitation standard and temporary labor camps), which are subject to federal jurisdiction
.
MNOSHA has adopted mo
st
of the
OSHA standards by reference, and h
as
the following
unique standards:
Toxic Chemical Handling and Exposure, Agriculture, Repetitive Motion Injuries, Heat Exposure, and Noise Exposure
.
The agency’s website is at
http://www.dli.mn.gov/MnOsha.asp
.
Wisconsin does not have an OSHA-approved State Plan
for private-sector employees
.
Summary of factual data and analytical methodologies:
The
se
proposed rule
changes
were developed
primarily
by
comparing the July 1, 2003, editions of the six OSHA standards that are currently incorporated into chapter SPS 332 – to the July 1, 2010, editions
which
are proposed to be incorporated in place of the 2003 editions. All of the Department’s current modifications of the 2003 editions were then analyzed in comparison to the 2010 editions, and in comparison to current best practices. These comparisons and analyses were
then
presented to and discussed with the Department’s Public Safety Advisory Council
, and the Council’s
resulting recommendations were incorporated into the
se
proposed rule
changes
. The following organizations and agencies were represented on this Council:
City of Milwaukee
Department of Administrtion, Division of State Facilities
Department of Administrtion, State Risk Management
League of
Wisconsin
Municipalities
Madison Metro
politan
Sewerage District
Municipal Electric Utilities of
Wisconsin
U
niversity of
W
isconsin
System
Wisconsin
Alliance of Cities
Wisconsin
Assoc
iation
of School Boards
Wisconsin
Counties
Association
Wisconsin
Rural Water Association
Wisconsin
Towns
Association
Analysis and supporting documents used to determine effect on small business or in preparation of economic impact analysis:
These
rule
changes
would
apply only to public-sector employees and their employers, so any economic impacts on small business are expected to only be indirect
.
Fiscal Estimate and Economic Impact Analysis:
The Fiscal Estimate and Economic Impact Analysis is attached.
Effect on small business
:
These rule
changes
are
not
expected to
have an economic impact on small businesses as defined in section
227.114 (1)
of the Statutes. The Department’s Regulatory Review Coordinator may be contacted by e-mail at
Eric.Esser
@wisconsin.gov
,
or by calling (608)
267-2435
.
Agency contact person
:
Dan Smith
,
Administrative
Rules Coordinator, at the Department of Safety and Professional Services, Division of Policy Development, 1400 East Washington Avenue, Room 151, P.O. Box 8366, Madison, WI, 53708-8366; or at telephone (608) 26
1-4463
; or by e-mail at
Daniel
2.Smith@wisconsin.gov
; or by telecommunications relay services at 711.
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TEXT OF RULE
SPS 332.003
(1)
RETROACTIVITY. The provisions of this chapter
shall
apply to all
places of employment and public buildings
workplaces
of a public employer whether existing prior to the effective date of this chapter or subsequently established
or built
, unless otherwise specified in this chapter.
SPS 332.003 (2)
CONFLICTS. (a) Where any rule written by the department differs from a requirement within a document referenced in this chapter, the rule written by the department shall govern.
(b) Where a provision of this chapter prescribes a general requirement and another provision of this chapter prescribes a specific or more detailed requirement regarding the same subject, the specific or more detailed requirement shall govern, except as provided in par. (a).
(c) Where different sections of this chapter specify conflicting requirements, the most restrictive requirement, as determined by the department, shall govern, except as provided in pars. (a) and (b).
SPS 332.003
(3)
INTERPRETATIONS. Under s.
101.02 (1)
, Stats., the department reserves the right to interpret the requirements in this chapter and in all adopted codes and standards.
Note:
Section
101.02 (1)
of the Statutes reads as follows: “The department shall adopt reasonable and proper rules and regulations relative to the exercise of its powers and authorities and proper rules to govern its proceedings and to regulate the mode and manner of all investigations and hearings.”
Note:
Under s.
101.055
(2)
(a)
, Stats., “agency” means an office, department, independent agency, authority, institution, association, society, or other body in state government created or authorized to be created by the constitution or any law, and includes the legislature and the courts.
Note:
Under s.
101.055
(2)
(b)
, Stats., “public employee” or “employee” means any employee of the state, of any agency or of any political subdivision of the state.
Note:
Under s.
101.055
(2)
(c)
, Stats.,
“public employee representative” or “employee representative” means an authorized collective bargaining agent, an employee who is a member of a workplace safety committee or any person chosen by one or more public employees to represent those employees.
Note:
Under s.
101.055
(2)
(b)
, Stats., (d) “public employer” or “employer” means the state, any agency or any political subdivision of the state.
SPS 332.05 (1)
RIGHT OF ENTRY TO INVESTIGATE OR INSPECT. The authorized representatives of the department, upon presentation of the appropriate credentials to an employer, may
perform any of the following activities
:
(a) Enter without delay and at reasonable times any building, place of employment or workplace of a public employer, or an environment where work is performed by an employee of an employer
; and
.
SPS 332.205 (2)
This is a department rule in addition to the requirements in
29 CFR 1904
:
Pursuant to s.
101.055 (7) (a)
, Stats.,
a
nd beginning January 1, 2004,
each employer shall report work-related injuries and illnesses to the department for the previous year by March 1 of each year. The report shall be made on form SBD−10710 or equivalent.
SPS 332.203 Safety and health program.
This is a department rule in addition to
the requirements in
29 CFR 1910
,
1915
,
1917
,
1926
and
1928
:
Each
employer shall develop and implement a safety and health program that describes the procedures, methods, processes and practices used to manage workplace safety and health. The program shall include
, but not be limited to,
elements for hazard identification and assessment, hazard prevention and control, and information and training.
Note:
Fatalities and hospitalizations are to be reported to the
Department’s
Division of Industry Services at P.O. Box 7302, Madison, WI 53707−7302. The
Division
can be contacted at telephone 608/266−3151 or 877/617−1565 or 411 (Telecommunications Relay) during normal business hours.
During nonbusiness
hours, report fatalities and hospitalizations to Wisconsin Emergency Management, which c
an be contacted at 800/943-0003.
(1)
Any employee who works on highways, roads, streets or their easements, including any of these workplaces that are not permanent places of employment, shall be provided with and wear an approved traffic-safety vest, or other clothing or equipment that provides equivalent
high visibility of the employee
(2)
An employer shall provide traffic control devices for the work under sub. (1), and the devices shall be used to regulate, warn, guide, or inform traffic of the work and of the presence of employees.
Note:
Under s.
349.065
, Stats., traffic control devices must be designed, installed and operated in accordance with the uniform traffic control devices manual adopted by the department of transportation under s.
84.02 (4) (e)
, Stats. The manual may be obtained from the American Traffic Safety Services Association, 15 Riverside Parkway, Suite 100, Fredericksburg, VA 22406−1022, telephone 800/231−3475. Electronic copies are available at the Federal Highway Administration website at
http://mutcd.fhwa.dot.gov/
.
(3)
No person may work on the surface of any structural member, floor, or other working platform that has become slippery from ice, snow, frost, paint or other cause, unless the surface is cleaned, sprinkled with sand, or made non-slippery insofar as the nature of the work will permit.
SPS 332.37 (2)
Substitute the following wording for
the requirements in
29 CFR 1926.601
(b)(10):
Trucks with dump
Dump
bodies
of all vehicles
shall be equipped with
a
positive means of support
,
that is
permanently attached
,
and capable of being locked in position to prevent accidental lowering of the body while maintenance or inspection work is being done or
when
while
the vehicle is left unattended.
Table 332.50
|
Table 332.50
|
OSHA
|
Occupational Safety and Health Administration
(
OSHA)
U.S. Government Printing Office
732 N. Capitol Street, NW
Washington, DC 20401
Telephone: 866/512-1800
Online Bookstore: http://bookstore.gpo.gov
E-copies: http://www.gpo.gov/fdsys/search/submitcitation.action?publication=CFR
|
1.
|
Recording and Reporting Occupational Injuries and Illnesses, Title 29 CFR Part 1904, July 1,
2003
2010
.
|
2.
|
Occupational Safety and Health Standards, Title 29 CFR Part 1910, July 1,
2003
2010
.
|
3.
|
Occupational Safety and Health Standards for Shipyard Employment, Title 29 CFR Part 1915, July 1,
2003
2010
.
|
4.
|
Occupational Safety and Health Standards for Marine Terminals, Title 29 CFR Part 1917, July 1,
2003
2010
.
|
5.
|
Occupational Safety and Health Regulations for Construction, Title 29 CFR Part 1926, July 1,
2003
2010
.
|
6.
|
Occupational Safety and Health Standards for Agriculture, Title 29 CFR Part 1928, July 1,
2003
2010
.
|
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(END OF TEXT OF RULE)
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