L&I Proposes New Wildfire Smoke Rule

By Trent Cotney

We all know that wildfires are a real threat to the Pacific Northwest, and there seem to be more of them every year. These fires can destroy homes and businesses, but they also can put workers at risk.

With that in mind, on May 10, 2023, the Washington State Department of Labor and Industries (L&I) filed a new rule proposal regarding wildfire smoke. This proposal was prompted by a petition L&I received, and its purpose is to address the many hazards associated with wildfire smoke. You may recall that L&I adopted a temporary emergency rule for wildfire smoke last year.

Background of the Proposed Rule

L&I is aware that wildfire smoke exposure is on the rise, with its dangers increasing every year. This smoke is dangerous for all outdoor workers, which include those in the construction industry. The petitioner noted that during the global pandemic and as the country experienced widespread wildfires, outdoor workers continued to perform their essential duties, making it imperative that these workers be protected. 

Wildfire smoke is a health hazard, as it contains harmful gases, chemicals, and fine particles less than 2.5 micrometers in diameter (PM2.5). These particles can cause serious health issues, including bronchitis, reduced lung function, worsening asthma, and even heart failure. To combat these hazards, workers need protective equipment and training, exposure controls, and up-to-date information.

Details of the Proposal

The proposed rule calls for increased safety standards during wildfire conditions. Among its provisions:

  • The scope of the rule, including its exemptions
  • Definitions of the terms related to wildfire smoke
  • Standards for communicating with workers about wildfire risks and encouraging workers to report hazards on the worksites without fear of retaliation
  • Standards of informing and training workers about protective equipment use and wildfire smoke exposure, including PM2.5 levels
  • Procedures for monitoring workers exposed to wildfire smoke and allowing them to receive medical care
  • Processes for setting protection requirements and providing clean air for workers
  • Implementation of exposure controls

For full details, employers are encouraged to review CR-102 Proposed Rule Language.

Impacts of the Rule

Protecting workers from the hazards of wildfire smoke is critical. However, adopting the proposed rule will be an undertaking. Employers will be expected to set new policies and provide more training, which involves both time and funding. To address some of those issues, L&I has issued a Small Business Economic Impact Statement Memo

Further Information

If you need more information about the proposal, L&I will hold public hearings in July. These will take place in Spokane, Kennewick, Bellingham, Vancouver, Tukwila, and Yakima. At the end of that month, there will also be a virtual meeting you can attend via Zoom. You can find the full schedule on the L&I website.

If this new rule will impact you and your company, take the time to review its provisions and attend one of the meetings. You can also receive updates by signing up for L&I emails

Written comments about the proposed rule are due by August 4, 2023, at 5 p.m. You can submit those by email at Cynthia.Ireland@Lni.wa.gov or by mail: Cynthia Ireland, Administrative Regulations Analyst, Department of Labor & Industries Division of Occupational Safety and Health, PO Box 44620, Olympia, WA 98504-4620

The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.

Trent Cotney is a partner and Construction Practice Group Leader at the law firm of Adams and Reese LLP and RCAW General Counsel.

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