Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGLO 1973 No. 102 -
Attorney General Slade Gorton

The Washington Industrial Safety Health Act, chapter 80, Laws of 1973, is applicable to employment in work places operated by the railroad industry.
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                                                                November 5, 1973

Honorable Charles D. Kilbury
State Representative, 16th District
P.O. Box 2482
Pasco, Washington 99302
                                                                                                             Cite as:  AGLO 1973 No. 102
Dear Sir:
            By letter previously acknowledged you have requested an opinion of this office on a question which we paraphrase as follows:
            Is the Washington Industrial Safety Health Act, chapter 80, Laws of 1973, applicable to employment in work places operated by the railroad industry?
            We answer this question in the affirmative for the reasons set forth in our analysis.
            The Washington Industrial Safety Health Act of 1973, chapter 80, Laws of 1973 (hereinafter referred to as "WISHA") is an act requiring the director of the department of labor and industries to adopt and enforce regulations governing health and safety in employment in our state.  Section 3 of this act provides, in part:
            "This chapter shall apply with respect to employment performed in any work place within the state.  . . ."  (Emphasis supplied.)
            The term "work place" is broadly defined in § 2 (7) to include:
            ". . . any plant, yard, premises, room, or other place where an employee or employees are employed for the performance of labor or service . . ."  (Emphasis supplied.)
            Prior to 1955, the adoption and enforcement of safety regulations for the railroad industry were included among the responsibilities of the director of the department of labor and industries.  Accord, § 80, chapter 7, Laws of 1921.  In that year, however, the legislature  [[Orig. Op. Page 2]] removed these responsibilities from that department and transferred them to the utilities and transportation commission.  See, § 1, chapter 173, Laws of 1955, and § 1, chapter 165, Laws of 1955, now codified as RCW 43.22.050 and RCW 81.44.065.  These statutes, neither of which was expressly amended or repealed by WISHA, read respectively as follows:
            RCW 43.22.050:
            "The director of labor and industries, through the division of safety, shall:
            "(1) Exercise all the powers and perform all the duties prescribed by law . . . in relation to the administration and enforcement of all laws and safety standards providing for protection of employees . . . Provided, however, This section shall not apply to railroads;
            ". . ."
            RCW 81.44.065:
            "The utilities and transportation commission shall exercise all powers and duties in relation to the inspection of tracks, bridges, structures, equipment, apparatus, and appliances of railroads with respect to the safety of employees and the public and the administration and enforcement of all laws providing for the protection of the public and employees of railroads which prior to April 1, 1955 were vested in and required to be performed by the director of labor and industries."
            Section 27 of WISHA, however, now provides, in pertinent part, that the department of labor and industries
            ". . . shall be the sole and paramount administrative agency responsible for the administration of the provisions of this chapter, and any other agency of the state or any municipal corporation or political subdivision of the state having administrative authority over the inspection, survey, investigation, or any regulatory or enforcement authority of safety and health standards related to the health and safety  [[Orig. Op. Page 3]] of employees in any work place subject to this chapter, shall be required, notwithstanding any statute to the contrary, to exercise such authority as provided in this chapter and subject to interagency agreement or agreements with the department made under the authority of the interlocal cooperation act (chapter 39.34 RCW) relative to the procedures to be followed in the enforcement of this chapter:  . . ."  (Emphasis supplied.)
            In direct answer to your question, we find nothing in WISHA which, either expressly or by implication, can be said to exclude a "work place" as defined in § 2 (7), supra, from the coverage of this act merely because it is operated by a railroad company or other component of the railroad industry.  Accordingly, we answer the question you have asked in the affirmative ‑ with the understanding, of course, that the state's jurisdiction over railroads under WISHA is subject to the same limits imposed by the paramount federal authority over interstate commerce as applied in the past under RCW 81.44.065, supra.  See, 45 USCA § 434; and State v. Chicago, M. St. P. & P.R.R. Co., 79 Wn.2d 288, 484 P.2d 1146 (1971), appeal denied, 404 U.S. 804 (1971).
            In addition we note that by virtue of § 27, supra, such powers as were heretofore vested in the utilities and transportation commission with regard to railroad employee safety are now to be exercised in accordance with WISHA as the governing statute, together with any rules and regulations promulgated thereunder and any interagency agreements entered into pursuant thereto ‑ with the department of labor and industries being the ". . . sole and paramount administrative agency responsible for the administration of . . ." its provisions.
            We trust the foregoing will be of some assistance to you.
Very truly yours,
Attorney General
Assistant Attorney General