Oregon OSHA Wildfire Smoke Exposure Rules

From 2020 to 2021, wildfires have burned more than 1.5 million acres of land in Oregon. To put things into perspective, the area that burned was about seven times the size of New York. Smoke from wildfires can contain small, dangerous particles that can penetrate deep into the lungs, causing a range of health problems. On September 11, 2020, wildfire smoke caused Portland’s air quality to rank worst among major cities in the world with an air quality index (AQI) of 349, a level that the US Environmental Protection Agency describes as “hazardous”. Unsurprisingly, Oregon is taking steps to address the health risks associated with exposure to wildfire smoke, and the state is expected to join California in passing related regulations soon.

On January 28, 2022, the Oregon Division of Occupational Safety and Health (Oregon OSHA) filed a Notice of Proposed Rulemaking, announcing that it was promulgating rules to address employee exposure to forest fire smoke. According to Oregon OSHA’s recent announcement, the rules “are needed to help protect workers from the dangers of PM2.5 [or fine particulate matter] resulting from major wildfires, which are expected to increase in frequency and duration, as well as the number of “poor air quality days” in affected areas of Oregon. The proposed rules “describe Air Quality Index (AQI) trigger levels for specific requirements that will reduce exposure of employees in the workplace to unhealthy and hazardous air quality from forest fire emissions.

If passed, the rules would apply to all public and private employers, but would likely have the most impact on Oregon’s agriculture, forestry and wine industries. In particular, closed buildings with a mechanical ventilation system and closed vehicles with an air filtration system would be exempt from the rules. Employees working exclusively from home would also be exempt.

Under the proposed rules, employers would be required to conduct an exposure assessment at the start of each shift to monitor employees’ exposure to AQI levels greater than or equal to 101. Employers would also be required provide annual wildfire smoke training to employees who may be exposed to AQI levels greater than or equal to 101 and maintain written or electronic training records. In addition, the proposed rules would require employers to develop a wildfire smoke hazard communication system at various AQI levels, which also allows employees to report various related concerns.

Oregon OSHA’s proposed rules would also require employers to implement certain engineering and administrative controls aimed at reducing employee exposure to PM2.5 (or fine particulate matter) to less than 101 AQI:

  • “[T]temporarily move outdoor workers to indoor areas or available vehicles where the air is properly filtered”;

  • “[T]move away temporarily [workers] to another outdoor location with better air quality”; and or

  • “Altering employee work schedules when better air quality is expected.”

Where AQI levels are equal to or greater than 101, the proposed rules would require employers to make National Institute for Occupational Safety and Health (NIOSH)-approved filtering facepiece respirators available to the employee free of charge. If employee exposure is equal to or greater than 251 AQI, the proposed rules state that employers “must ensure that employees wear NIOSH-approved filtering facepiece respirators.” If employee exposure is equal to or greater than 501 AQI, the proposed rules state that employers “must ensure that employees wear NIOSH-approved respirators,” as well as implement a respiratory protection program that complies with respiratory protection standard (29 CFR 1910.134) or wildlife law. Smoke Respiratory Protection Program. Each program should include the following three key requirements: (1) training employees in the proper use of respirators; (2) routine user seal checks of filtering facepiece respirators; and (3) procedures for storing, maintaining, and replacing these respirators.

Oregon OSHA allows interested stakeholders to provide public comments as part of the rulemaking process. Stakeholders can register for the Oregon OSHA Virtual Public Hearings from March 2, 2022 through March 4, 2022. Stakeholders can also call 1-833-604-0884 or 503-947-7396 and leave a message voice with their comments. The agency plans to adopt permanent rules in April 2022. In anticipation of Oregon OSHA adopting some form of wildfire smoke regulation, many employers in Oregon are already analyzing the feasibility of implementing safety processes and considering the purchase of large quantities of respirators for 2022 and 2023.

© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, PC, All rights reserved.National Law Review, Volume XII, Number 35


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