Although workplace air quality concerns usually focus on contaminants produced by workplace activities, this summer’s wildfire season provides a reminder that unsafe workplace air may also enter from outside and offsite. On July 18, California’s Occupational Safety and Health Standards Board adopted an emergency rule (8 CCR 5141.1) requiring worker protection from wildfire-produced bad air, which the state’s Division of Occupational Safety and Health (Cal/OSHA) began to enforce effective July 29. In California, you should prepare to comply; if you work someplace else but could be affected by wildfires then this rule provides a useful basis for approaching the issue.
How Much Smoke Triggers Compliance?
The new rule applies in workplaces where wildfire smoke has produced at least the following levels of ambient air contamination:
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The current Air Quality Index (AQI) for fine particulate matter (PM2.5) is 151 or greater, regardless of the AQI for other pollutants; and
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The employer should reasonably anticipate that employees may be exposed to wildfire smoke.
The U.S. Environmental Protection Agency (EPA) establishes health-based AQIs for each of the conventional (“criteria”) pollutants, including PM2.5, and provides numerical scales that are intended to be easy for the public to understand: 0-50 is good air quality; 51-100 is moderate pollution, 101-150 is unhealthy to sensitive groups,; 151-200 is unhealthy; 201-300 is very unhealthy; and over 300 is hazardous. State and local air quality agencies translate their air quality monitoring data into AQI numbers.
The rule provides a vaguer definition of “wildfire smoke” as “emissions from fires in ‘wildlands” [by reference to another Cal/OSHA rule which defines the term as “Sparsely populated geographical areas covered primarily by grass, brush, trees, crops, or combination thereof.”], or in adjacent developed areas.”
Employers are to determine likely employee exposures to PM2.5 by checking present and forecast AQI numbers from EPA or state or local air quality agencies, or may provide their own monitoring. (By way of reference, much of the San Francisco Bay area recorded AQIs over 150 for several days during the November 2018 Camp Fire, which burned over 150,000 acres (roughly 240 square miles) in an area more than 150 miles north of where I live and work. Many urban areas were over 200 at least once.)
Which Workplaces And Operations Are Exempt?
The new rule focuses on likely exposures. It therefore exempts the following types of workplaces and operations:
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Enclosed buildings or structures in which the air is filtered by a mechanical ventilation system and the employer ensures that windows, doors, bays, and other openings are kept closed to minimize contamination by outdoor or unfiltered air.
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Enclosed vehicles in which the air is filtered by a cabin air filter and the employer ensures that windows, doors, and other openings are kept closed to minimize contamination by outdoor or unfiltered air.
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Where the employer demonstrates that exposures are below the regulatory threshold
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Employees exposed to a current AQI for PM2.5 of 151 or greater for a total of one hour or less during a shift.
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Firefighters engaged in wildland firefighting.
These exemptions allow employers with workplaces inside qualifying buildings or vehicles to forego compliance, although complex workplaces may still have outside workers, workers at loading docks, or security personnel who patrol the grounds.
What Compliance Requirements Apply?
When air quality in a non-exempt workplace meets the threshold described above, the employer must implement the following measures. These activities must meet the general standards for employers’ Injury and Illness Prevention Programs (IIPPs), which are California’s mandatory versions of OSHA-recommended safety and health plans (I wrote about OSHA’s most recent revisions to those guidelines here).
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Communication – “establish and implement a system for communicating wildfire smoke hazards in a form readily understandable by all affected employees, including provisions designed to encourage employees to inform the employer of wildfire smoke hazards at the worksite without fear of reprisal.” The system shall include effective procedures for:
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Informing employees of:
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The current AQI for PM2.5.
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Protective measures available to employees to reduce their wildfire smoke exposures.
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Encouraging employees to inform the employer of:
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Worsening air quality.
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Any adverse symptoms that may be the result of wildfire smoke exposure such as asthma attacks, difficulty breathing, and chest pain.
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Training and instruction – “effective training and instruction,” consisting of at least the following:
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The health effects of wildfire smoke.
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The right to obtain medical treatment without fear of reprisal.
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How employees can obtain the current Air Quality Index (AQI) for PM2.5.
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The requirements in Title 8, section 5141.1 about wildfire smoke.
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The employer’s two-way communication system.
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The employer’s methods to protect employees from wildfire smoke.
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The importance, limitations, and benefits of using a respirator when exposed to wildfire smoke.
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How to properly put on, use, and maintain the respirators provided by the employer.
- Appendix B to the rule specifies additional details about each item.
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Control of harmful exposures – employers must provide the following control measures to implement when exposures exceed the limits identified above, but are not “emergencies”:
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Engineering controls, such as enclosed buildings, structures or vehicles and provide air filtration (these align with the exemptions above); reduce exposures to PM2.5 below a 150 AQI level if possible, or as far as possible toward that level.
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Administrative controls, where engineering controls are infeasible or cannot reduce exposures below 150 AQI; examples include relocating work to a location with a lower AQI, changing work schedules, reducing work intensity, or providing additional rest periods.
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Respiratory protection, if AQI is 150-500 then employer must provide approved respirators for voluntary use by employees; if the AQI is more than 500 then this rule requires compliance with the state’s Respiratory Protection Standard.
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What’s Next?
As an emergency rule this took effect immediately. In California, emergency regulations can only be effective for one year, but OSHSB an re-adopt emergency regulations or proceed with a full rulemaking and adopt permanent regulations. California employers should prepare to comply. Employers in other states and provinces should consider the rule’s provisions as ways to protect their non-California employees.
Self-Assessment Checklist
Does the organization have any facilities or other operations located in areas that are subject to smoke from wildfires?
If so, are any employees’ activities conducted outside structures or vehicles that have atmospheric controls to ensure that workplace air does not exceed 150 AQI for PM2.5 during wildfire events?
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If so, has the organization considered, or implemented, engineering controls to maintain workplace air below 150 AQI?
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If so, has the organization considered, or implemented, administrative controls to maintain workplace air below 150 AQI and/or to limit exposure times?
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If so, has the organization considered, or implemented respiratory protection measures for individual employees?
Where Can I Go For More Information?
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California OSHSB website for the emergency rulemaking (8 CCR 5141.1)
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AirNow website (sponsored by EPA and other agencies; provides daily AQIs nationwide)
Specialty Technical Publishers (STP) provides a variety of single-law and multi-law services, intended to facilitate clients’ understanding of and compliance with requirements.
About the Author
Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 25 years.
Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).
Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).
You may contact Mr. Elliott directly at: tei@ix.netcom.com