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Cal/OSHA Wildfire Smoke Emergency Regulation Now in Effect

In late July, the California Occupational Safety and Health Standards Board adopted an emergency regulation to protect workers from health hazards arising from wildfire smoke. The regulation became effective July 30, 2019, and will remain in effect through January 28, 2020. 

Modified Regulation

The adopted wildfire smoke regulation is substantially similar to the proposed regulation, which we summarized in May. However, the adopted regulation has eased some requirements for when employers are required to provide respirators to employees.

Under the original version of the proposed rule, any time the Air Quality Index (AQI) for PM2.5 was greater than 300, employers had to provide respirators and employees were required to wear them. Under the adopted version, respirator use is mandatory only when the AQI exceeds 500. However, employers are still required to provide respirators to employees who request them when the AQI is greater than 150, but less than 500. The regulation also requires employers to “encourage employees to use respirators” when the AQI exceeds 150. 

The adopted regulation also includes an additional exemption. Employees who are exposed to an AQI greater than 150 “for a total of one hour or less during a shift,” are exempt from this regulation. Accordingly, employees who are outside only briefly during a work shift are likely exempt. 

Impact of Adopted Regulation

Significant portions of the regulation remain unchanged from what was originally proposed. This means that employers are required to monitor AQI in order to determine employee exposures to PM2.5, establish and implement a system for communicating wildlife smoke hazards, make respirators available to employees when AQI exceeds 150 and an employee requests a respirator and require employees to wear respirators when AQI exceeds 500, and implement an “effective training and instruction” program on wildlife smoke hazards. The adopted regulation includes an appendix detailing the mandatory information that employers must provide employees. For employers that do not usually provide employees with respirators, those employers may now be obligated to have a respiratory protection program. 

While this regulation was adopted on an emergency basis and will expire, the California Division of Occupational Safety and Health (Cal/OSHA) has already scheduled a public advisory meeting for August 27, 2019, to discuss whether this emergency regulation should be made permanent.

© 2020 Beveridge & Diamond PC National Law Review, Volume IX, Number 220

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About this Author

Jayni A. Lanham Environmental, Health, & Safety Attorney Beveridge & Diamond Baltimore, MD
Associate

Jayni draws on her experience with environmental, health, and safety (EHS) regimes to help clients assess risk, develop compliance strategies, and build strong legal and technical cases when faced with litigation or enforcement.

Jayni counsels companies in a variety of industries on regulatory compliance and represents them in litigation and enforcement proceedings related to a broad range of federal and state EHS laws. Jayni is a leader of Beveridge & Diamond’s Occupational Safety and Health group and has significant experience advising clients on compliance...

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Kaitlyn D. Shannon Environmental Enforcement & Litigation Attorney Beveridge & Diamond San Francisco, CA
Associate

Kaitlyn Shannon focuses her practice on environmental enforcement and litigation across a range of industries and issues.

She is an experienced environmental litigator and regularly appears in California state and federal courts, and she is the deputy leader of the firm’s Litigation practice group. She has experience with the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), including defending against natural resource damages claims. She is also well-versed in California state-law claims, including California’s Superfund program, California’s Environmental Quality Act (CEQA), and common law claims, such as nuisance, and assists clients in navigating the interaction between state and federal laws in these areas. She has argued appeals in both California state court and the Ninth Circuit Court of Appeals.

Kaitlyn also handles administrative appeals for employers under California’s Occupational Safety and Health (Cal/OSHA) program and has guided companies through the use of California writ petitions to challenge agency actions.

Kaitlyn assists diverse industries in making strategic decisions before litigation is initiated to either resolve the conflict through early communications with the regulating agency or, if necessary, take action to preserve legal case theories. In particular, she provides advice to product manufacturers and trade associations under multiple California Extended Producer Responsibility (EPR) regulatory schemes.

Kaitlyn maintains a commitment to pro bono service.  She secured asylum for an El Salvadorian man who came to the United States as an unaccompanied minor fleeing gang violence.

415-262-4020