Judge tosses lawsuit against heat/smoke rules

The sky was a sickly yellow-brown Sept. 16, 2020 when smoke from catastrophic wildfires gave much of Oregon the worst air quality in the world for days. | PHOTO BY MOTOYA NAKAMURA, COURTESY OF MULTNOMAH COUNTY

By DON McINTOSH

A federal judge has dismissed a business group lawsuit that challenged new rules protecting Oregon workers from heat and smoke. 

Oregon Manufacturers and Commerce, Associated Oregon Loggers Inc. and the Oregon Forest Industries Council filed the suit June 15 in the U.S. District Court in Medford, saying the rules were too vague to be reasonably enforced. 

The heat rule requires employers to provide shade, water, and extra breaks when the heat index (a “feels like” measure that takes into account humidity) is at or above 80º or 90º Fahrenheit. The smoke rule requires employers to provide masks to outdoor workers when the Air Quality Index (AQI) goes above 100.

Plaintiffs asked judge Mark D. Clarke to block the law from taking effect while the case was being litigated, but he declined, and the rules took effect July 1.

In its response to the lawsuit, lawyers for Oregon OSHA said “employers of reasonable intelligence” can tell whether wildfire smoke is impacting air quality, and the AQI metric is widely available on smart phone weather apps for example.

Clarke dismissed the lawsuit “with prejudice” in a 20-page ruling Dec. 20—meaning that the decision can not be appealed or re-filed.  

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