Oregon Employers Sue Over Vague New Administrative Regulations For Wildfire Smoke Protection

A complaint was filed on Wednesday in the District of Oregon by plaintiffs Oregon Manufacturers and Commerce (OMC), Associated Oregon Loggers, Inc. (AOL), and Oregon Forest & Industries Council (OFIC) against defendants Oregon Occupational Safety and Health Division (OR-OSHA), Oregon Department of Consumer and Business Services (DCBS), and two state officials. The plaintiffs have taken issue with a new set of workplace regulations release by the defendants, which they argue are unconstitutionally vague.

In May of 2022, defendant OR-OSHA announced its adoption of Oregon Administrative Rules entitled “Protection from Wildfire Smoke.” The new regulations specify that they are applicable to public and private sector employers whose employees are exposed or will be exposed to wildfire smoke where “the ambient air concentration for fine particulate matter (PM2.5) is at or above 35.5 micrograms,” which equates to an air quality index of 101.

The plaintiffs contend that this specification fails to account for other air pollutants that can affect the air quality index level and contribute to an air quality index greater than 101. The complaint asserts that the new regulation offers no clarity on how an employer is to determine if the particulates from only the wildfire smoke meet the air quality index threshold of 101, which “makes it infeasible to identify when and if the rules are applicable to a particular work site.”

Also included in the new set of regulations are rules titled “Heat Illness Prevention.” The heat illness prevention regulations include requirements that employers must produce acclimatization plans for heat illness in their workers. Though this is made a requirement in the rules, there is no framework offered for “when such plans are triggered, how long such plans must be implemented if the weather changes or what type of employer-specific plan would be considered not in compliance.”

The complaint cites two claims, each for injunctive relief due to a violation of constitutional due process and lack of statutory authority. The plaintiffs are seeking favorable judgment on each claim for relief, a declaration that the aforementioned regulations are unconstitutionally vague and that the defendants exceeded their statutory authority, an injunction prohibiting the enforcement of the regulations, litigation fees, and any other relief deemed proper by the court.

The plaintiffs are represented in the litigation by Cummins, Goodman, Denley & Vickers, P.C.