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AGO 1950 No. 284 - June 05, 1950
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Smith Troy | 1941-1952 | Attorney General of Washington

BOILER INSPECTION ‑- THE DIRECTOR OF LABOR AND INDUSTRIES MUST INSPECT BOILERS AND PRESSURE VESSELS TO DETERMINE THAT THEY MEET THE ADOPTED STANDARDS OF SAFETY

The Director of Labor and Industries under the authority of section 8, chapter 130, Laws of 1919 (Rem. Rev. Stat. 7734), may adopt the standards of the American Society of Mechanical Engineers as the standards of safety for boiler and pressure vessel construction in this state.

Without statutory authority granted by the legislature the Director of Labor and Industries does not have the power to deny admission in this state or installation and operation of a boiler or pressure vessel which has not been previously determined to meet the adopted standards of the American Society of Mechanical Engineers.

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                                                                    June 5, 1950

Honorable A. M. Johnson
Director of Labor and Industries
Olympia, Washington                                                                                                              Cite as:  AGO 49-51 No. 284

Attention:  !ttMr. Ed Sorger
            Supervisor of Safety

Dear Sir:

            We are in receipt of your oral request on the following questions:

            1. May the Director of Labor and Industries in promulgating standards of safety, adopt the Code of the American Society of Mechanical Engineers as a standard of safety for boiler and pressure vessel construction in this state?

            2. In absence of statutory authority by the legislature may the director deny installation and operation of a boiler on the sole ground it does not bear the label of the American Society of Mechanical Engineers?

             [[Orig. Op. Page 2]]

            The conclusions reached may be summarized as follows:

            1. The Director of Labor and Industries under the authority of section 8, chapter 130, Laws of 1919 (Rem. Rev. Stat. 7734), may adopt the standards of the American Society of Mechanical Engineers as the standards of safety for boiler and pressure vessel construction in this state.

            2. Without statutory authority granted by the legislature the Director of Labor and Industries does not have the power to deny admission in this state or installation and operation of a boiler or pressure vessel which has not been previously determined to meet the adopted standards of safety of the American Society of Mechanical Engineers.

                                                                     ANALYSIS

            In the interest of safety and safety devices for places of employment in this state, the legislature has devolved upon the Director of Labor and Industries the duty of inspection of the establishment or work of every employer engaged in extrahazardous work.  Rem. Rev. Stat. 10838.  In carrying out the duties of inspection the director has the power to make, modify and promulgate standards of safety.  Rem. Rev. Stat. 7734.  When from time to time as new standards or changes or modifications of existing standards are proposed, the director is under the duty to call a public hearing or hearings for the consideration and establishment of standards of safety.  At every such hearing the employers and workmen interested shall be privileged to attend and be heard in person or by their committee or committees or representatives.  Rem. Rev. Stat. 7749.

            The standards or rules and regulations promulgated by the director must carry out the express legislative purpose or effect the operation and enforcement of the law.  State v. Mills 5 Wn. (2d) 322, 105 P. (2d) 51.  It is not unreasonable nor in derogation of the powers of the director to adopt as a standard of safety the Code of the American Society of Mechanical Engineers for boiler and pressure vessel construction as the Code is nationally recognized to be a valid standard of safety for boiler construction.

            There is no prohibition against the adoption of the standards of the Code of the ASME, which have been adopted by various other states for the purpose of uniformity, but the duty of inspection is still on the director to inspect.  The basic intent of the law in regard to the director is that through inspection and the establishment of safety standards a safe place and safety devices be provided for workers engaged in extrahazardous employment.

             [[Orig. Op. Page 3]]

            "It shall be the duty of the director of labor and industries, through and by means of the division of safety to enforce the safe place, safety device and educational standards and orders, to inspect the establishment or work of every employer engaged in extrahazardous work (other than coal mines) as often as it is deemed necessary, but not less than once every year, for the purpose of ascertaining whether the safe place, safety device and educational standards applicable thereto are being complied with and to investigate and analyze all serious accidents to workmen in order to provide a remedy to prevent a repetition of the same, not only in the establishment in which the accident occurred, but also in all other like establishments."  Rem. Rev. Stat. 7774.

            Thus, if a boiler has been imported by an owner into this state which does not bear the stamp or label of the ASME, the director cannot be derelict in his duties of inspection and deny a certificate of safety inspection by forbidding the installation.  The director cannot delegate his legislative duty of inspection to the ASME and cannot rely on the presumption of a boiler being unsafe because it has not been previously predetermined to meet the standards of this state.  Such arbitrary action before inspection would be a denial of due process.  28 Am.Jur., Inspection Laws § 2.  It is the duty of the director to inspect a boiler without an ASME stamp to ascertain if the construction is in compliance with the standards of this state.

Very truly yours,

SMITH TROY
Attorney General

T. H. LITTLE
Chief Assistant
Attorney General

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