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New heat, smoke rules challenged

Industry groups say the state’s heat illness and wildfire protection rules go too far. Workers and climate advocates say they are long overdue
In this July 1, 2021, file photo, farmworkers near St. Paul till soil as a heat wave bakes the Pacific Northwest in record-high temperatures. New heat and smoke rules meant to protect outdoor workers are being challenged in court. [AP Photo/Nathan Howard, File]

With temperatures rising and fire season officially declared, advocates are visiting farms and job sites in Oregon, educating workers about new state rules to protect them from extreme heat and wildfire smoke.

Oregon’s 86,000 farmworkers face among the highest risks from heat and smoke in summer, but many don’t know that new rules guarantee shade areas or water, for example.

“They’re usually comforted and relieved to know,” Kate Suisman, an attorney at the Northwest Workers Justice Project, said. “The summer before last when we had bad smoke, everyone was caught flat-footed.”

During the 2020 Labor Day weekend wildfires, many farmworkers harvested crops while breathing unhealthy levels of smoke. In 2021, extreme heat led to the death of an Oregon farmworker.

This year state officials hope to avoid any harm thanks to two new sets of rules that became permanent June 15. They primarily affect the agriculture, forestry and construction industries, which employ more than 300,000 people in Oregon, according to the U.S. Bureau of Labor Statistics.

Enforced by the Oregon Occupational Safety and Health Division, or Oregon OSHA, the heat and smoke rules require employers to provide respirator masks in smoky conditions and water and shade breaks in heat.

The same day the heat rules went into effect, three industry groups — Oregon Manufacturers and Commerce, Associated Oregon Loggers, Inc. and the Oregon Forest Industries Council — challenged OSHA’s authority to enforce them in a lawsuit filed in the U.S. District Court in Medford. The suit also challenges the smoke rules which went into effect July 1.

The suit names Oregon OSHA and the state Department of Consumer and Business Services as defendants, along with their directors — Renee Stapleton, acting OSHA administrator, and Andrew Stolfi, who leads the consumer and business agency.

The lawsuit seeks immediate, temporary restraining orders on the rules in the hopes of blocking them permanently.

Opponents say the rules are too restrictive, and not specific enough to each industry, claiming some rules for protecting farmers don’t make sense to apply to loggers. They say the rules could unnecessarily limit production. Workers rights’ and environmental justice groups say they’re necessary to keep people safe.

The court has yet to respond to the request, and Aaron Corvin, spokesman for Oregon OSHA, said the agency does not comment on pending litigation.

Sara Duncan, communications director for the Oregon Forest Industries Council, said in an email that the industry groups hope to have an initial decision on whether the rules will be allowed to remain in effect before the end of this summer.

That worries advocates. On Monday, the Oregon Department of Forestry announced the beginning of fire season across the state, which typically lasts through the end of October.

“We hope that this will not evolve at all while we’re in the thick of it,” Suisman said about the lawsuit. “It would be devastating for workers.”

There are no federal standards on protecting workers from heat or smoke. Just three states, California, Washington and Minnesota, have heat and smoke standards.

The lawsuit contends that Oregon’s rules go further than those in the other states, Duncan said. “The rules were initiated in response to extreme weather events of the past few years, but actually extend far beyond those extreme events and will unnecessarily restrict work in ordinary outdoor circumstances,” she said.

Rules set thresholds

The first set of heat rules kick in when the combined outdoor temperature and relative humidity — called the heat index — reaches 80 degrees.

Employers must provide shaded areas for workers and enough drinking water so that each employee can consume 32 ounces, or a quarter of a gallon, an hour. The water cannot be warmer than 77 degrees. Companies must offer training to educate workers about the risk factors for heat illness.

At 90 degrees, employers must monitor, or allow a buddy system, to check employees for symptoms of heat illness. Employers also must mandate regular breaks for workers.

OSHA also checks that companies have an emergency medical plan in the event of a heat illness.

The smoke rules kick in when particulate matter — particles that reach 1/30 of the diameter of a human hair — reach the safe-breathing limit set by the federal Environmental Protection Agency. At that level, there is typically a visible haze in the air and breathing becomes more difficult.

Employers must monitor air quality, inform employees about the risks of exposure to wildfire smoke and provide respirator masks for voluntary use. Employers must have plans to relocate outdoor workers to enclosed buildings if needed and adjust work schedules to reduce employee exposure to smoke if the air quality threshold is reached.

The smoke rules do not apply to work sites inside buildings or structures with ventilation systems, and the heat rules do not apply to job areas where temperatures never rise above 80 degrees. The rules also don’t apply to people working in emergency situations or when the exposure is limited.

Industry wants nuanced rules

Industry officials support some of the rules, said Duncan of the Oregon Forest Industries Council, which represents more than 50 forest owners and forest products manufacturers in the state.

She said employers support educating employees about the potential health hazards, allowing them to take precautionary measures, monitoring workers for symptoms and providing water and shade.

But employers oppose being forced to provide respirator masks to employees when their use is optional. She maintained that the air quality requirements are the strictest nationwide and said the rules lack specificity: They don’t prescribe what to do when temperatures soar momentarily.

Industry would like rules that differentiate among farming and forestry work sites, for example.

The rules “will significantly restrict work in benign circumstances like a typical Oregon summer day,” Duncan said. “Common sense also tells that many employees, like foresters, sign up for hard manual outdoor work intentionally and are paid to work in conditions that are likely going to be hot during an ordinary summer.”

Nevertheless, she’s not heard of any employers who’ve had difficulty abiding by the rules, though she said this has to do with a cooler start to the summer.

Worker advocates say the lawsuit is misguided.

“A lot of these industries challenging the rules have also played a disproportionate role in climate change,” said Jamie Pang South, environmental health program director at the Oregon Environmental Council. “The environmentalists and labor and worker advocates have a lot more overlap than people might think, and they have similar antagonists.”

Suisman of the Northwest Workers Justice Project agreed: “There are too many examples of workers getting sick and workers dying from heat,” Suisman said. “And employers are painting themselves as victims.”