Celly Services Inc.

California Organic Waste Recycling Regulations

THE REGULATION: In October 2014, Governor Brown signed AB 1826 Chesbro (Chapter 727, Statutes of 2014) requiring that businesses to recycle their organic waste on and after April 1, 2016 based on the amount of weekly waste they generate. This law also requires that on and after January 1, 2016, local jurisdictions across the state implement an organic waste recycling program to divert organic waste generated by businesses. Organic waste, also referred to as ‘organics’, means food waste, green waste, landscape and pruning waste, nonhazardous wood waste, and food-soiled paper waste that is mixed in with food waste. This law phases in the mandatory recycling of commercial organics over time, while also offering an exemption process for rural counties. In particular, the minimum threshold of organic waste generation by businesses decreases over time. This means larger segments of the commercial sector will increasingly be required to comply. Legislation was enacted as China has stopped taking waste from the US, and landfills in the US are reaching critical capacity. California is making this legislative decision to take the load off landfills by requiring recycling at all levels in the state. 

(Source:https://www.calrecycle.ca.gov/recycle/commercial/organics).

IMPLEMENTATION: Effective January 1, 2019, California law AB 1826 also requires that businesses that have organic waste of 30 gallons (4 cubic yards) or more per week, must separate organic waste from other wastes. If your organic waste at the business is 30 gallons or more per week, you must set up separate containers for organics in the office and break rooms. Looking ahead, per AB 1826, if the State of California determines that the statewide recycling of organics in the year 2020 has not been reduced to 50% of the organic waste generated in 2014, then the organic recycling requirements on business will expand to cover businesses generating 15 gallons of organic waste per week. Even though the law was effective January 1, the counties and cities are now putting pressure on businesses to reduce the waste to landfills and are slowly ratcheting up the enforcement. 

ACTION NEEDED: Actions needed by management include clear labeling of containers for organic waste and directing employees to use them correctly. Janitorial services will then be required to collect the waste from the facility, keep them separated in organic and non-organic categories, and transfer the waste to the commercial hauler-provided specific containers for organic and non-organic waste. Essentially, management must provide separate containers for organic waste and non-organic waste (paper, plastic and glass) in the break room(s) and other locations where employees eat food and may dispose food and food-soiled paper. Commercial waste haulers for the facility must be contacted to provide separate bins for haul away, so that the janitorial staff can dispose the waste into proper containers as required by law.https://www.calrecycle.ca.gov/recycle/commercial/organics/faq

NOTE: Mandatory recycling of organic waste is the next step toward achieving California’s aggressive recycling and greenhouse gas (GHG) emission goals. California disposes approximately 30 million tons of waste in landfills each year, of which more than 30 percent could be used for compost or mulch (Waste Characterization Study 2014). Organic waste such as green materials and food materials are recyclable through composting, mulching, and anaerobic digestion to produce renewable energy and fuel. GHG emissions resulting from the decomposition of organic wastes in land-fills have been identified as a significant source of emissions contributing to global climate change. Reducing the amount of organic material sent to landfills and increasing the production of compost and mulch are part of the AB 32 Scoping Plan (California Global Warming Solutions Act of 2006).  

DISCLAIMERThe contents of this newsletter are merely for informational purposes only and are not to be considered as legal advice.  Employers must consult their lawyer for legal matters and EPA/OSHA consultants for matters related to Environmental, Health & Safety. The article was authored by Sam Celly of Celly Services, Inc. who has been helping automobile dealers comply with EPA and OSHA regulations since 1987. Sam received his BE (1984) and MS (1986) in Chemical Engineering, followed by a J.D. from Southwestern University School of Law (1997). Our newsletters can be accessed at www.epaoshablog.com. Your comments/questions are always welcome. Please send them to sam@cellyservices.com.

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Best Can Since Canned Beer

Do it for the love of money or the benefit of the environment, or both! What can be economical, good for the environment, and less labor? It’s the refillable can of brake cleaner. Basically, the dealership gets 55 gallons of brake cleaner with refillable cans and the rest is easy. Many dealerships are doing this and find this to be very attractive, especially when taking into account all the costs related to purchase, use, and disposal of aerosol cans. We discuss the pros and cons here:

Dollars & Cents: The dealership buys the drum of brake cleaner with the refillable equipment and aerosol cans. The supplier charges for the drum only. The refillable machine and the refillable cans are free (with the purchase of the drum). A 55-gallon drum retails for about $550. Cost savings:

The refillable can is half the price of retail. Go for it!

Note: If you have to dispose aerosol cans as Universal Waste, add on another $400 for 200 not fully empty aerosol cans. Your savings just tripled. This is a no-brainer

Environmentally Sound Brake Cleaner: Acetone does not have the headaches of chlorinated solvents. Chlorinated solvents, even traces of it, can wreak havoc with used oil disposal. Disposal of used oil laced with halogenated solvents can cost a few dollars per gallon as it heads to an incinerator rather than recycling. Hexane base brake cleaners have been banned, as hexane has been shown to cause peripheral neuropathy in technicians using this solvent over a period of time. Acetone also flies below the radar of many Air Quality Management Districts that have limited the aerosol cleaners with VOC above 25 grams/liter. Acetone based brake cleaner have no AQMD limitations since it is virtually VOC free.

Fire Department Considerations: Fire Department and OSHA regulations limit the storage to 110 gallons of acetone at the facility, See the Newsletter on ourhttps://epaoshablog.com/2017/07/21/news-views-july-2017/. Some Fire Departments may require the storage in a NFPA approved cabinet. Do not over stock the drums as you will exceed storage regulations, expand on the fire hazards, and bear the wrath of the Fire Inspector. Limit your purchases to the minimum needed logistically and operationally. All drums must be properly grounded to protect from static electricity hazards. Grounding must be done with a water pipe or a steel rod 8 feet into the ground. Connection to a conduit or air-line is insufficient.

OSHA Considerations: Acetone is flammable and a toxic substance. Train employees to wear Personal Protective Equipment, such as gloves and eye protection. Use acetone in well ventilated areas, and minimize exposures. Employees spraying acetone close to a 750°F catalytic converter, or close to any other fire source, will experience a flash that will burn their eyebrows, eye lashes and other facial hair! Provide SDS to employees and train them on the Hazard Communication Program. Acetone is a serious fire hazard and can ignite, even if there is only a 2.6% concentration in the air. Fire extinguishers to control fires include foam, carbon dioxide, and dry chemical (Type B or C).

Other Winners: There are additional advantages other than cost savings and reduced waste. A few them are listed here:

  • Minimal Foot Print – A 55G drum has storage of about 500 cans. It will definitely use less storage space.
  • Longer Order Points – No need to order brake cleaner weekly. The system has a monitoring device that allows you to determine the volume remaining and order accordingly.
  • Easy Fill – The system has an easy filling mechanism that is automated and takes the guess work out of the air liquid mixture to be loaded. If the can or filling mechanism goes bad, it is replaced for free!
  • Delivery – Vendors deliver drums within 4 business days of order, as manufacturing plants are located all over the US.

DISCLAIMER: The contents of this newsletter are merely for informational purposes only and are not to be considered as professional advice. Employers must consult their lawyer for legal matters and EPA/OSHA consultants for matters related to Environmental, Health & Safety prior to purchase of bulk brake cleaner. Bulk storage of flammable materials have safety ramifications so employers and employees must fully understand the safety considerations involved with bulk storage and usage of flammable brake cleaner. This article was authored by Sam Celly of Celly Services, Inc. who has been helping automobile dealers comply with EPA and OSHA regulations since 1987. Sam received his BE (1984) and MS (1986) in Chemical Engineering, followed by a J.D. from Southwestern University School of Law (1997). Assistance in preparing this article was provided by Tom Baker of Basics. Our newsletters can be accessed at http://www.epaoshablog.com. Your comments/questions are always welcome. Please send them to sam@cellyservices.com.

Verification Questionnaire CALIFORNIA ONLY

What is the purpose of the California Annual EPA ID Number Verification Questionnaire?

Anyone who generates, transports, offers for transport, treats, stores, or disposes of hazardous waste must have a hazardous waste identification (ID) number, which is used to identify the hazardous waste handler and track the hazardous waste from the point of origin to its final disposal (“cradle to grave”). The purpose of this verification is to ensure that the information on record for the EPA ID Number is correct and current.


The annual Verification Questionnaire and fees assessment for hazardous waste ID numbers and hazardous waste manifests is required by California Health & Safety Code section 25205.15 and 25205.16. Any generator, transporter, or facility operator who fails to provide information required by the department to verify the accuracy of hazardous waste activity data shall be subject to suspension of any and all identification numbers assigned and to any other enforcement action (Health & Safety Code section 25205.16(c)).

What to do?

Hazardous waste generators register on the state web site. All one has to do is log-in and complete the questionnaire to determine if any fees are due. Fees must be paid promptly with the system generated invoice. Fees can range from $150-600 per EPA ID number, depending upon the number of employees at the dealership and the hazardous waste manifests completed for the year.

Options available now:

  1. Complete your EVQ Questionnaire: Dealerships must complete the EVQ questionnaire and pay the relevant fees ASAP. 
  2. Clients of Celly Services contact us to complete your EVQ: Please email us the log-in information for EVQ as follows:

A. Log In for EVQ

Username: _____________________

Password: _____________________

B. Number of Employees at dealership: ____________

NOTE 1: We may have stored your EVQ Log in details number from last year. In that case, send us the total number of the employees paid at the corporation.

NOTE 2: If you don’t know the user name and password just send an email to evq@dtsc.ca.govand they will email you a username and password registered to that email address. The user from last year will have the email registered under their name. The system allows you to register as a new entity as well. If you wish for Celly Services to set up log in credentials, please send us a letter on your letterhead. “Permission to obtain login credentials” (Example letter is shown below)

What happens if you do not file EVQ: 

The dealership’s EPA ID number will be made inactive. There is no real warning to the dealership. The hauler stops picking up the hazardous waste as the EPA number has become inactive. Your hazardous waste oil tanks, drums and buckets can continue to overflow! Only after completion of a new EPA ID application, completion of the EVQ and upon the payment of fees, the EPA ID number gets reactivated. This whole process can take over 2 weeks and can be demanding. In summary, consider this matter as critical and get it done ASAP. We are here to help.  

Reach us at 562-704-4000 or sam@cellyservcies.com

Other Useful Links:

DISCLAIMER: There is no warranty implied or direct or whatsoever as to the completeness or applicability of these signs presented here. The contents of this newsletter are merely for informational purposes only and are not to be considered as legal advice.  Employers must consult their lawyer for legal matters and EPA/OSHA consultants for matters related to Environmental, Health & Safety. The article was authored by Sam Celly of Celly Services, Inc. who has been helping automobile dealers comply with EPA and OSHA regulations since 1987. Sam received his BE (1984) and MS (1986) in Chemical Engineering, followed by a J.D. from Southwestern University School of Law (1997). Our newsletterscan be accessed atwww.epaoshablog.com. Your comments/questions are always welcome. Please send them tosam@cellyservices.com.

PREVENT A $100,000 CATASTROPHE BY INSTALLING A $500 VALVE/TIMER DEVICE ON YOUR NEW OIL/ATF TANKS

You walk into the shop early in the morning and see a mega oil spill. Material loss and cleanup can cost a bundle not to mention the shop shut down time while the cleanup crew vacuums the shop floor, slurry the lot and undertake the cleanup of the storm sewer. Regulators are breathing down your neck threatening civil and criminal penalties.  
WHAT HAPPENED: The leak source may be attributed to equipment failure as follows:
  • Metering Pump Failed: In one case the metering pump controlled by parts department to regulate the dispensing of oil failed, creating a backpressure that emptied out the entire oil tank on the shop floor and then into the storm sewer.
  • Dispenser Came Off The Hose: The new dispenser and hoses installed did not have a tight fit and on a weekend the dispenser unit came off, resulting in emptying out the oil tank, even though the compressor had been shut off. The oil spill damaged the lot and entered the storm sewer resulting in extensive cleanup and regulatory activity.
  • Pipe Leak: The pipes carrying the oil from the oil tanks to the shop burst resulting in an oil spill. Even though no oil was discharged to the storm sewer, there was significant product loss and cleanup activity not to mention productivity loss as the shop had to be shut down for a few days. 
In each of the cases where oil had spilled to the storm sewer, extensive regulatory enforcement activity followed. Cleanup of the entire lot and service department had to be undertaken as well, along with the cleanup performed on the complete storm sewer system impacted by the oil spill. The price tag, in each of the cases was tens of thousand of dollars! The SPCC Plan prepared by the dealership was also summoned by the federal-EPA and the dealership underwent rigorous questioning.  
WHAT TO DO: The remedial measures to avoid such disasters are straightforward, easy and inexpensive to install compared to the potential for an expensive and troublesome spill.
  1.  A $500 Solenoid Valve With Timer Will Shutoff Air To Dispensers During Non-Shop Hours: (We recommend this option) Place a solenoid valve with a timer in the air-line to the oil tank dispensers. With the help of a preset timer, the valve will automatically shut-off air to dispenser pump during non-shop hours thereby preventing any spills. Leaks or spills in the shop area during shop hours are not an issue as they are detected immediately and addressed by the shop staff in a timely manner. Compressed air required by the detail staff or others will still be available even though air is not available to the dispenser pumps.
  2. Training Employees To Shut Air To Dispensers By Hand Valve Is Not Effective: A hand-operated valve would do the same job as shutting the air with a solenoid valve as discussed above but is prone to human errors. Shop porters or other shop staff will have to be trained and routinely reminded to ensure that they are carrying out the job of shutting air during non-shop hours. A shop porter trained to shut-off valve can be on vacation, call in sick, or simply be terminated resulting in the discontinuation of the air shut off procedure. An automatic valve with in-line timer as discussed above does not have the human limitation. The mechanical device has to be tested for proper operation and serviced on a periodic basis.
  3. Compressors On The Timer: Some dealerships have compressors with a timer to shut them at the end of the work shift. However, there is enough air in the air-storage tank, even after compressor has been shut off, to empty the oil tank of hundreds of gallons when a leak occurs down stream in the hoses, dispenser, or the metering pump. So this procedure is of limited use in preventing spills. To prevent corrosion of the air tank, many companies have an employee drain the air-tank on a daily basis. This procedure faces the same limitations discussed in item # 2 above.
DISCLAIMER: The contents of this newsletter are merely for informational purposes only and are not to be considered as legal advice.  Employers must consult their lawyer for legal matters and EPA/OSHA consultants for matters related to Environmental, Health & Safety. The article was authored by Sam Celly of Celly Services, Inc. who has been helping automobile dealers comply with EPA and OSHA regulations since 1987. Sam received his BE (1984) and MS (1986) in Chemical Engineering, followed by a J.D. from Southwestern University School of Law (1997). Our newsletters can be accessed at www.epaoshablog.com. Your comments/questions are always welcome. Please send them to sam@cellyservices.com.

Heat Stress

Both Cal-OSHA and Fed-OSHA are requiring that employers take affirmative steps to reduce heat stress. This law was enacted in California a few years ago when employers were required to train employees & supervisors for the prevention of heat stress. https://www.dir.ca.gov/title8/3395.html This memo provides you with guidance on the statute and other steps you may take to be in compliance and to protect employee health. Please note that if Cal-OSHA were to inspect you facility, they would require you to show proof of training on heat stress along with other safety documentation!
Background: Workers who are exposed to extreme heat or work in hot environments may be at risk of heat stress. Exposure to extreme heat can result in occupational illness and injuries. Heat stress can result in heat stroke, heat exhaustion, heat cramps, or heat rashes. Heat can also increase the risk of injuries in workers as it may result in sweaty palms, fogged-up glasses, and dizziness. Burns may also occur as a result of contact with hot surfaces.
Law on Heat Stress: In the state of California, regulations require employers to take affirmative steps for controlling Heat Stress. Generally, for an automobile dealership, high risk of heat stress exists in locations as follows:
  • Sales Staff: When a sales employee walks through the lot with a potential customer, the walk-through the lot would be considered outdoors and hence the standard would apply.
  • Parts Truck Drivers: A parts truck driver works outside the dealership driving around town. The place of work is considered outdoors.
  •  Shop Areas: Shops with marginal ventilation, metal roofs and/or hot engines idling may increase the ambient temperatures and heat stress can become an issue.
Employees Working Indoors: Training on Heat Stress for employees working indoors is being worked out by the regulators in Sacramento.
Other States: In other states where a specific heat illness standard may not exist, the employer’s responsibility for addressing heat related illness’ does not cease. The general duty clause of OSHA requires that an employer provide a safe workplace and abate hazardous conditions. Training employees on Heat Stress should be completed.
Provide Water: One salient requirement of the California Code is that the employer provide one quart of water per hour per employee during the work shift. For parts truck drivers, provide a water cooler with ice at the start of the shift. Last but not least, water fountains or coolers should be readily available at the job site.
Poster: STOPPING FOR WATER KEEPS YOU GOING poster from the OSHA website can be downloaded and posted on your employee notice board. http://www.osha.gov/SLTC/heatillness/osha_heat_poster_en.pdf
Start A Conversation At 80˚ F: The dealership management should start a conversation with the employees regarding the impact of hot ambient temperatures and the means to alleviate the effects of heat. Some ideas are as follows:
  • Install a Thermometer: An 18 inch or bigger thermometer in the shop area. May even install one in the break room indicating the temperature outside. This will send a reminder to employees regarding being vigilant to the increase in temperature. Taylor Precision sells patio thermometers for $25.
  • Drink Water: Remind employees to drink water and stay hydrated. You may even blend Gatorade type drinks for employees with ice in the cooler, preferably during the hotter times of the day.
  • Get the OSHA App For Your Cell Phone: OSHA has developed an app “OSHA-NIOSH HEAT SAFETY TOOL”. Employee can download the app on their phone and get the local Heat Index, Hourly Heat Index, Symptoms of Heat Stroke, First Aid for Heat Stroke and other safety tips.
  • Defog Your Glasses: The high heat will induce sweat that will fog up the safety glasses. Keep your safety glasses clean and spray defogger solution on the lenses. Lenses with high performance anti-fog coating are also available.
  • High Blood Pressure and Diabetics: The heat impacts persons with diabetes or high blood pressure in a severe manner. Employee with those ailments should take extra precaution in the hot summer months.
Training Guidance
Employee training is required for employees as follows:
  1. The environmental and personal risk factors for heat illness.
  2. The employer’s procedure for complying with the requirements of this standard.
  3. The importance of frequent consumption of small quantities of water
  4. The importance of acclimatization.
  5. The different types or heat illness and the common signs and symptoms of heat illness.
  6. The importance of immediately reporting to the employer, directly or through the employee’s supervisor symptoms of heat illness in themselves, or in coworkers.
  7. The employer’s procedures for responding to symptoms of possible heat illness, including how emergency medical services will be provided should they become necessary.
  8. Procedures for contacting emergency medical services, and if necessary, for transporting employees to a point where they can be reached by an emergency medical service provider.
  9. How to provide clear and precise directions to the work site.
Training should be completed ASAP and employee acknowledgment should be retained in files.
DISCLAIMER: The contents of this newsletter are merely for informational purposes only and are not to be considered as legal advice.  Employers must consult their lawyer for legal matters and EPA/OSHA consultants for matters related to Environmental, Health & Safety. The article was authored by Sam Celly of Celly Services, Inc. who has been helping automobile dealers comply with EPA and OSHA regulations since 1987. Sam received his BE (1984) and MS (1986) in Chemical Engineering, followed by a J.D. from Southwestern University School of Law (1997). Our newsletters can be accessed at www.epaoshablog.com. Your comments/questions are always welcome. Please send them to sam@cellyservices.com.

California Used Oil Recycling Program

Just imagine this as someone taking your empty soda cans to the recycling center for money. Now imagine your used oil, which is being taken away for recycling, has a refund associated with it. All you have to do is sign up as a California Used Oil Recycling Center and then we file this claim for you as part of our service. The money that you receive from the state is about $3000 per year, on average. All you have to do is deposit the check the state sends you every quarter! See details at  https://www.calrecycle.ca.gov/usedoil/

You can find frequently asked questions and answers are available on the state website at https://www.calrecycle.ca.gov/UsedOil/Generators/

Q: What forms do I need to complete to get certified?

A: Celly Services will complete all forms that you need to get certified (2 pages).

Q: What if the oil looks contaminated?

A: You can decline the acceptance of contaminated used motor oil or other waste given         to  you. Instructions are listed                  here, https://www.calrecycle.ca.gov/UsedOil/CertCenters/#Contaminated. Ask them to take it to a facility as provided by the state. https://www.calrecycle.ca.gov/UsedOil/Handling/Contaminated/

Q: Do I need to keep any special/extra paperwork as part of the program?

A: No. Your used oil pickup receipts are obtained by us from your used oil hauler.

Q: What is the claim based on and how frequently?

A: The claim is 16 cents for every gallon of used oil collected from your facility and is filed quarterly by us.

Q: What is the maximum amount of oil that a person can bring?

A: You can set a limit where you may not accept more than 5 gallons from a person.

Q: How does this affect my image as a new car dealer?

A: The fear that unsightly homeless in pajamas will show up with a gallon of used oil in your driveway is unfounded. No dealership in the program (CSI client) has ever seen them drive in with oil.

Q: What paperwork needs to be posted?

A: The Certificate of a Used Oil Recycling Center (8.5 x 11 sheet of paper) needs to be posted on your notice board where service department permits and licenses are posted. Also, a Used Oil Recycling Center sign (provided by the state at no cost) needs to be posted in your driveway next to your BAR and other signs.

Q: Do I need to pay the public?

A: As we said earlier, no one shows up. If they do, offer them 40 cents per gallon. No paperwork is needed.

Q: Is there a long term contract with the state?

A: No, you can get off the program with a simple letter to the state.

Q: What if my oil gets contaminated?

A: https://www.calrecycle.ca.gov/usedoil/handling/contaminated/procedures. You may keep a 16 gallon drum separately for storage of oil from the public and keep suspected oil in that drum. If taking oil from the public contaminates your oil, the state will reimburse you for incremental costs for disposal due to the contamination, presuming the source of contamination was public oil (up to a maximum of $5,000 per year. Signs are available, from the state at no cost, to remind both employees and customers not to mix anything with used oil or pour contaminated used oil into storage tanks.

Q: How do I get the gallons of new oil + ATF purchased per quarter needed for the claim?

A: Contact your bulk oil supplier for the number.

Certified Collection Center Operators Guide

https://www2.calrecycle.ca.gov/Publications/Download/1159

 

Comments: Trust us. It’s the coolest $3000 (average) your consultant has ever made for you!

 

If you need further details or wish to have a copy of the application, please call us at (562) 704-4000 or email Sam at sam@cellyservices.com.

DISCLAIMER: The contents of this newsletter are merely for informational purposes only and are not to be considered as legal advice.  Employers must consult their lawyer for legal matters and EPA/OSHA consultants for matters related to Environmental, Health & Safety. The article was authored by Sam Celly of Celly Services, Inc. who has been helping automobile dealers comply with EPA and OSHA regulations since 1987. Sam received his BE (1984) and MS (1986) in Chemical Engineering, followed by a J.D. from Southwestern University School of Law (1997). Our newsletters can be accessed at www.epaoshablog.com. Your comments/questions are always welcome. Please send them to sam@cellyservices.com.

OSHA IN THE NEWS: Obama Era Rules Trumped, & Other Reporting Requirements

OSHA has issued memoranda to Regional Administrators reversing course on a series of directives issued under the Obama administration. We believe these rules are employer friendly and will have an impact on how employers run their safety program and administer their drug testing policies.
OBAMA ERA RULES: In May 2016, OSHA published a rule that added new and explicit provisions for employees to report injuries with a reasonable procedure and prohibiting retaliation against employee reporting injuries at the workplace. The memo to Regional Administrators in October of 2016, explained provisions in detail as follows:

  1. Employer must have a reasonable procedure to report accidents
  2. Employer must not retaliate against employees reporting accidents
  3. Limitation on disciplining employees filing injury claims (See Our 2013 Newsletter on this issue)
  4. Limitation on drug testing following an accident
  5. Limitation on Incentive plans at work to promote safety (especially cash raffles)

RULE REVERSAL: On October 11, 2018, OSHA issued a memo (https://www.osha.gov/laws-regs/standardinterpretations/2018-10-11) clarifying their position – they do not prohibit safety incentive programs or post-accident drug testing. Their position in these current set of rules is employer friendly and employers may wish to enact policies that until now were suspect or may have been considered a violation of OSHA policies.
INCENTIVES: Incentive programs to reward workers for reporting safety hazards and near misses have always been held legal as it encourages employee involvement in safety at the workplace. Other types of incentives where employees are provided a reward or prize (earlier considered suspect) are now considered permissible so long as they do not discourage reporting accidents. Employers providing a reward to employees for accident free month or a specific time period would not be cited if they withheld the reward upon the occurrence of an injury so long as the employee feels free to report an accident. We recommend that employers run the cash/reward incentive program with instructions to employees as follows:

  • Employee must promptly report injuries/accidents so that the underlying hazard can be corrected.
  • Employee must report injuries promptly so treatment can begin and it does not fester for lack of treatment.
  • Employees not reporting injuries merely to keep the reward alive with will be disciplined so as to prevent such occurrence in future.

OSHA recommends that inadvertent deterrent effects from cash rewards can be counterbalanced by also implementing rewards for reporting unsafe acts or conditions, introducing training programs that reinforce employee rights to treatment from workplace accidents, and reminding employees that the employer has a non-retaliatory policy.

DRUG TESTING GUIDANCE FROM OSHA: The new rules on post-accident drug testing are very clear and allow the managers to conduct drug testing following an accident. Permissible drug testing includes:

  • Random Drug testing
  • Drug testing unrelated to the reporting of work related injury or illness
  • Drug testing under the states’ workers’ compensation law
  • Drug testing under other federal laws such as US DOT rules
  • Drug testing to evaluate the root cause of the workplace incident that harmed or should have harmed the employees. If the employer chooses drug testing to investigate the accident, the employer should test all employees whose conduct could have contributed to the accident, not just employees who reported the injuries.

Last but not least, the October 2018 OSHA memo noted that it supersedes the memo issued covering the interpretation of various elements of the labor code as issued during Obama Administration in October 2016.
EMPLOYER DRUG TESTING POLICY: Many states have legalized marijuana for medicinal and recreational drug. On a federal level marijuana remains a Schedule I drug and therefore employers may still enforce legitimate drug testing and discipline employees for violating the employers’ drug policy. Recently, the US Department of Justice and Drug Enforcement Administration placed the FDA approved medication Epidiolex in Schedule V of the Controlled Substance Act, the least restrictive schedule of CSA. Epidiolex is the first cannabis plant extract based drug that has been approved by a federal agency for lawful medical use.
This approval by DOJ may be a step towards reclassifying marijuana at a later time. With changes in the legal and social acceptance of marijuana, employers must update their drug use policies with the help of legal counsel to keep them compliant. Also, such policies should be communicated to employees through discussion forums at the workplace rather than just a page in the employee handbook. Employers maintaining drug free workplace have consistently shown better safety records than those who have lax drug enforcement policy.

RECORDING & REPORTING OF INJURIES TO OSHA

Employers in states regulated by federal OSHA have been required to electronically submit certain records of occupational injuries and illnesses. The electronic submission requirements, along with the incorporation of an existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses, were added to federal OSHA’s recording and reporting regulations found in the Code of Federal Regulations, Title 29, Part 1904.

On April 30, 2018, federal OSHA posted a “trade release” requiring all affected employers to submit injury and illness data to the federal OSHA Injury Tracking Application (ITA) online portal, even if the employer was covered by a state plan that had not completed adoption of their own state rule: https://www.osha.gov/news/newsreleases/trade/04302018. Therefore, though California had not yet adopted its own state rule, Cal/OSHA advised affected employers to comply with federal OSHA’s directive to provide Form 300A data covering calendar year 2017 by July 1, 2018.

On July 27, 2018, federal OSHA posted a “trade release” that it proposes to amend its recordkeeping regulation by rescinding the requirement for establishments with 250 or more employees to electronically submit information from OSHA Forms 300 (Log of Work-Related Injuries and Illnesses) and 301 (Injury and Illness Incident Report). These establishments will continue to be required to submit information from their Form 300A (Summary of Work-Related Injuries and Illnesses) covering the previous calendar year. For additional information and links, go to federal OSHA’s trade release: https://www.osha.gov/news/newsreleases/trade/07272018.

Employers are now required to electronically submit Form 300A data covering calendar year 2017 by December 31, 2018. These employers should follow the instructions posted at federal OSHA’s ITA website:

All employers with 250 or more employees, unless specifically exempted by section 14300.2 of title 8 of the California Code of Regulations. Auto dealers with more than 250 employees are not exempt from these regulations and must conform to reporting.

Employers with 20 to 249 employees in the specific industries listed in Appendix H of the emergency regulations (https://www.dir.ca.gov/dosh/doshreg/Recording-and-Reporting/Text-of-Amended-Regulation-Revised.pdf). Auto dealers are not covered in the reporting requirements and hence auto dealers with 20-249 employees are exempt from electronic submission requirements.

NOTE: We note that some specific government agencies on a data gathering mission may contact the dealership for injury data. Dealers may then comply with such request on a case by case basis.

APPEALS COURT LIMITS OSHA’s INSPECTION AUTHORITY

OSHA has limitations on inspection authority when visiting a place of employment. OSHA officers may try to expand the scope of inspection during the visit and upon informed consent may proceed to collect evidence that can significantly increase the violations detected and related penalties. Therefore, it is critical that the employer provide OSHA access to the location that is related to the underlying cause of inspection. Such boundaries must be established during the opening conference with the OSHA officer. In a recent case, the US Court of Appeals limited the scope of inspection available to OSHA. See our Newsletter on “How to handle an OSHA Inspection”.
In the case at hand, an employee was injured while repairing an electrical panel. The employee was hospitalized triggering a report to OSHA under federal regulations. OSHA inspected the facility and was granted access by the employer to look at the electrical panel area. Upon request, OSHA inspectors were provided Injury Log 300 by the employer. Upon review of Log 300, OSHA filed for a search warrant to investigate other locations at the plant where the injuries as reported on the Log 300 had occurred. The search warrant was granted. Subsequently, the employer filed a motion to vacate the search warrant which was granted by the District Court. OSHA appealed the lower courts decision to the 11th Circuit Court of Appeals.
The appeals court held that logs are merely records of injuries and not proof of OSHA violations. The mere existence of injuries, the court noted in this case, does not mean that injuries were caused by OSHA violations, or justify the issuance of administrative warrant for gathering evidence of OSHA violations. Recordkeeping regulations as found in 29 CFR Part 1904 state that the recording of injuries on Log 300 does not mean that an employer is at fault or an OSHA violation has occurred. This decision serves as guidance to employers to limit OSHA inspections to the complaint area. Unless the employer consents, a judicial warrant is required under the Fourth Amendment. And if OSHA wishes expand its search under information procured during initial inspection, the employer should seek legal counsel to limit the inspection as available under the current law.
References:

  1. https://www.osha.gov/recordkeeping/finalrule/interp_recordkeeping_101816.html
  2. https://www.dir.ca.gov/dosh/calosha-updates/log300-reporting.html
  3. USA v. Mar-Jac Poultry, Inc., No. 16-17745 (11th Cir. 2018)

DISCLAIMER: The contents of this newsletter are merely for informational purposes only and are not to be considered as legal advice. Employers must consult their lawyer for legal matters and EPA/OSHA consultants for matters related to Environmental, Health & Safety. The article was authored by Sam Celly of Celly Services, Inc. who has been helping automobile dealers comply with EPA and OSHA regulations since 1987. Sam received his BE (1984) and MS (1986) in Chemical Engineering, followed by a J.D. from Southwestern University School of Law (1997). Our newsletters can be accessed at http://www.epaoshablog.com. Your comments/questions are always welcome. Please send them to sam@cellyservices.com