IBA Comments on WSR 23-13-069

By Gary Smith

SBEIS for WSR 23-13-069 is in Violation of RCW 19.85

WSR 23-13-069 proposing wildfire smoke regulation will cost construction contractors, plumbers, electricians, landscapers, painting contractors, etc. big and small, and their customers, an estimated $2.7 billion or more per year and impose more regulatory inflation on small businesses and violates RCW 19.85 and cannot be adopted as proposed because it violates RCW 19.85. 

The Department completed a Small Business Economic Impact Statement pursuant to RCW 19.85 that was totally inadequate, and which failed to accurately reflect the cost of this regulation on small businesses affected by this proposed rule based on the Department false assumptions.

The Department assumed, incorrectly, that it would take one minute to check the PM 2.5 levels per day. As stated in its Small Business Economic Impact Statement (SBEIS) filed with the proposed rule on page three of the SBEIS. 

Based on internal technical staff estimates, employers would spend about one minute checking PM2.5 levels and would do so at an increasing frequency as the PM2.5 levels increase. (Footnote: 6)

The Department also included the following statement with that SBEIW estimate. Measures in its footnote: 

6 This time would vary depending on various reasons, for instance the method the employer uses to obtain measures.

The Department’s one-minute estimate is totally unjustified and incorrect based on its Footnote 6 for the following reasons: 

Checking the PM2.5 levels must be a daily scheduled activity to meet the requirements of the proposed rule.

  1. Workers checking the PM 2.5 levels as required are not just sitting idly doing nothing.  They must transition from their current work activity to the check of the PM 2.5 levels (workers may be working in different locations so multiple checks may be required by an affected). That transition would require the worker to finish or interrupt their current project, transition to checking the PM 2.5 levels: 10 – 15 minutes.
  2. Identify and get on the correct website(s) to check the PM 2.5 levels: 10 – 15 minutes.
  3. Compare the PM 2.5 levels to worker wildfire protection levels and determine if worker wildfire protection is required 10 – 20 minutes.
  4. Document those levels for compliance purposes: 10 – 15 minutes.
  5. Communicate with management if PM 2.5 levels required contacting the affected employees: 10 – 15 minutes.
  6. The worker who checked the PM 2.5 levels must transition back to their other work activities following checking the PM 2.5 levels: 10 – 15 minutes.

Real world time for checking PM 2.5 levels as required by the proposed rule is 25 minutes to 50 minutes per PM 2.5 check and checks are to be done at a minimum of two times per day as provided in the proposed rule.

The Department actually contradicts itself on page four of the SBEIS when the Department states “Second, L&I assumes that the number of checks needed during the day in addition to the initial check…” Yet the Department’s SBEIS assumes one PM 2.5 level check per day in most cases.

The proposed rule does not provide any exemption from checking PM 2.5 levels two or more times per day at worksites during the wildfire season in Washington State which currently is 164 days as stated by the Washington State Military Department, Emergency Management Division.

L&I relies upon another ludicrous assumption in its SBEIS.  The Department makes two main assumptions to estimate these costs. First, in order to determine the concentration levels of the day, employers would have to check at least once every day for the total of 153 days in each wildfire season, most likely at the beginning of the workday. Second, L&I assumes that the number of checks needed during the day in addition to the initial check is dependent upon the daily maximum concentration level (see Table 3.1) from historical data. Given the average monitoring time, and the hourly wage of a typical supervisor of $67.16, the estimated cost to impacted businesses to determine PM2.5 levels would be $2.1 million each year.

The Department’s assumption of 153 days is totally inaccurate.  Wildfire season in Washington State is 164 days.

The Department makes another assumption on page two of its SBEIS that only 13,443 construction businesses will be affected by the rule when in fact the Department has 160,000 registered contactors in Washington State.

The Department states on page 12 of its SBEIS the cost for construction employer costs will be from $232 – $314 and the Minor Cost Threshold for Construction is: $5,852.

The estimated cost for each construction contractor cost ranges between $9,066.60 and $12,693.24 well above the $5,852 Minor Cost Threshold for Construction

Based on IBA’s analysis of the Department’s SBEIS for WSR 23-13-069, the Department has failed to comply with RCW 19.85 and for the reasons stated above, the Department cannot adopt WSR 23-13-069 as proposed.

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Gary Smith

Independent Business Association

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