On July 16, the Department of Labor & Industries (L&I) announced a new emergency rule regarding wildfire smoke rule for outdoor workers. The adopted emergency rule deviates from the original proposed rule that we discussed in the Legislative Bulletin on July 12. The new smoke rule is intended to reduce outdoor employee’s smoke exposure during significant wildfire smoke events through safety education, exposure symptom monitoring, voluntary employee masking, and physically changing worksites to avoid smoke exposure. The emergency rule are effective immediately.

Under the emergency rule, employers are required to monitor conditions for worksites where employers “reasonably anticipate that employees may be exposed to wildfire smoke.” This does not include worksites in enclosed buildings or vehicles with the doors and windows primarily shut or where employees are exposed to high levels of smoke for an hour or less per shift. To measure smoke concentration, employers will need to use their own monitoring equipment or use publicly available data from nearby monitors like the Department of Ecology’s (Ecology) WA Air Monitoring Network or U.S. EPA’s AirNow monitoring network, to measure for PM2.5 (smoke particulate matter that is 2.5 micrometers or less) per cubic meter. Smoke particulates are small enough that they can get deep into the lungs and worsen existing health conditions like asthma, negatively impact heart health, and increase the risk of death.

It is important to note that Ecology’s Washington Air Quality Advisory (WAQA) and EPA’s Air Quality Index (AQI) use the same air quality scale (good, moderate, unhealthy, etc.), but each sets the different categories at different PM2.5 concentrations. WAQA generally sets its categories at lower PM2.5 thresholds, making it more protective of health.

The new rule requires that at worksite PM2.5 concentrations of 20.5µg/m³ (WAQA 101, AQI 69), employers must offer workers training on smoke hazards and mitigation, recognizing and responding to smoke-related health issues, and how to transport smoke-impacted workers to health providers if necessary. The rule lists what information must be included in employee communications and training. Employers are also encouraged (but not required) to implement smoke exposure controls like moving work indoors, moving to less smokey worksites, or providing respirators for voluntary use.

At PM2.5 concentrations of 55.5µg/m³ (WAQA 173, AQI 151) or higher, employers will be required to implement exposure controls whenever feasible. Exposure controls can include moving work into enclosed buildings or vehicles, providing HEPA filters for enclosed spaces, moving to less smokey worksites, adjusting work schedules to avoid smoke, and reducing work intensity and adding additional breaks. If an employer cannot remove workers from the smoke at a worksite, they must provide employees with NIOSH-approved respirators (like N-95s or KN-95s) for voluntary use.

The emergency wildfire smoke rule was developed after several stakeholder meetings held this winter and spring; they were based on a similar California emergency wildfire smoke rule from 2019. The adopted rule is a fairly significant departure from the draft emergency rule that L&I proposed in June, where required exposure controls and providing respirators would have been triggered at 20.5µg/m³ (WAQA 101, AQI 69) instead of 55.5µg/m³ (WAQA 173, AQI 151).

Now that the emergency rule is in place (it will expire by Nov. 13, 2021), L&I has filed a CR-101 to begin the rulemaking process for a permanent wildfire smoke rule, but has not yet announced any stakeholder meetings. You can find more information on the permanent rule process and the emergency rule on L&I’s wildfire smoke rulemaking site.