Published on Jul 12, 2021

Wildfire smoke emergency rule nearing adoption, permanent rulemaking continues

Contact: Candice Bock, Matt Doumit

Last month, we provided an update on an emergency rulemaking at the Department of Labor & Industries (L&I) that could result in new requirements and mandates for employers during significant wildfire smoke events. Those emergency rules are nearing completion and will go into effect after L&I incorporates stakeholder comments gathered until June 29. There is not yet a date certain for a finalized rule to go into effect. L&I has also initiated a separate, full rulemaking process to develop a permanent wildfire smoke rule. No stakeholder meetings are likely to begin until after the emergency rule goes into effect.

In mid-June, the Department of Labor & Industries released its draft emergency wildfire smoke rule and held a final stakeholder meeting on June 18. To protect workers from the impacts of wildfire smoke, the draft rule would require employers to provide workers with personal protective equipment (like N-95 respirators) for voluntary use when smoke PM2.5 (i.e. particulate matter 2.5 microns) pollution reaches a level of 20.5 micrograms per cubic meter. This is equivalent to a Washington Air Quality Index Advisory (WAQA) index of 101, or an EPA Air Quality Index (AQI) of 69. On the WAQA scale, it is the start of the “Unhealthy for sensitive groups” category on the WAQA scale (see chart). By way of comparison, California’s emergency smoke rule didn’t trigger any PPE requirements until an AQI of 151.

CategoryIndex valueWAQA concentraion (µg/m3)AQI concentraion (µg/m3)

Good

0-50

0 to 12.0

0 to 12.0

Moderate

51-100

12.1 to 20.4

12.1 to 35.4

Unhealthy for sensitive groups

101-150

20.5 to 35.4

35.5 to 55.4

Unhealthy

151-200

35.5 to 80.4

55.5 to 150.4

Very unhealthy

201-300

80.5 to 150.4

150.5 to 250.4

Hazardous

301-400

>150.4

250.5 to 350.4

401-500

350.5 to 500

 

Under the draft rule, an employer could also choose to move workers to a different worksite with cleaner air or move them indoors to avoid smoke exposures when air quality hits the 20.5 micrograms per cubic meter threshold. Employers are also responsible for monitoring their own worksite’s air quality, either by using a nearby state or federal air quality monitor or purchasing one on their own and employing it at their worksite. The draft rule also requires employers to communicate potential smoke hazards to employees and provide training on the health effects of smoke and mitigating those effects. The draft rule currently exempts enclosed buildings and vehicles with adequate air filtration, as well as workers who are only exposed to high smoke levels for less than one hour per shift.

Many stakeholders, including AWC, have voiced concerns over the scope and practicability of the draft emergency rule. L&I’s draft rule sets the threshold for triggering the rule much lower than California’s emergency rule, and there are concerns about the agency setting a low smoke threshold without doing the complete analysis that would otherwise be required by a full rulemaking. Many city workers will be unable to avoid working outdoors (like parks or utility workers), so the rules could have a significant impact on how those workers go about their jobs. Questions remain about which air monitors employers should use if they choose to self-monitor smoke conditions and if there will be record keeping requirements for employers to implement such a rule.

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