PENALTIES FOR ILLEGAL DISPOSAL OF HAZARDOUS WASTE ARE SKYROCKETING:  Last year a chain of automobile stores were hit with penalties totaling $3.38 million dollars ( as reported in San Jose Mercury News ).  Recently, Pep Boys settled to pay $3.7 million dollars in a lawsuit alleging that the company illegally dumped hazardous waste. https://www.mercurynews.com/2019/09/30/pep-boys-to-pay-millions-in-hazardous-waste-settlement/amp/.  An auto dealership in Santa Barbara County settled with the DA’s office earlier this month for $100,000 dollars regarding hazardous waste disposal violations. http://www.santamariasun.com/news/19054/das-office-settles-with-local-auto-dealer-on-alleged-environmental-violations/ Earlier this week, Service King settled, without acknowledging any wrongdoing, for $2.35 million dollars for illegal disposal of hazardous waste from collision repair operations such as auto body sanding dust, sanding pads, automotive paints, clear coats, solvents, non-empty aerosols, etc. https://www.repairerdrivennews.com/2019/10/28/california-da-service-king-will-pay-2-35m-settlement-over-hazardous-waste-found-in-trash/. The responsibility of proper management and disposal of hazardous waste rests on the Business Owner & Operator. We have outlined some policies and procedures that management must use in order to stay clear of such enforcement. The recommendations are as follows:

MANAGEMENT ISSUES

An automotive dealer must install policies and procedures related to hazardous waste management. Hazardous Waste Hauler:  Selection criteria should include as follows:

-Haulers that are licensed and registered with the state. Compare costs and services. -The haulers must provide proper labeling resources and assist with the labeling of hazardous waste containers. They also maintain the schedule for when the waste is collected and ensure it is done in a timely manner, with the paperwork handled properly. Generally, hazardous waste generated by the facility should not be accumulated for more than 90 days. -Non-California facilities with less than 100 kg/month of hazardous waste are classified as Conditionally Exempt Small Quantity Generator (CESQG). The dealers that fall in this CESQG category have no accumulation limit on hazardous waste.

Service Manager: The Service Manager and other managers must be on top of issues that arise. Establish processes as follows:

-What are the duties of the management staff regarding hazardous waste compliance? -Who completed training on hazmat (including an annual refresher), emergency response, and where are the documents maintained? -Facility Inspection: What person or persons will accompany the inspector on the annual walk-through? Generally, the walk-through results in Notice of Violations (NOV), which, if corrected in the established time-frame, will carry no penalties. -Who is responsible for completing the tasks noted on violations? The penalties occur when the NOV goes unanswered. Many dealerships change managers often and new managers fail to address the pending violations in timely manner. Establish a process that requires any violations that are handed to the dealership be copied to the GM and other managers who can then monitor the correction status of violations. -Service Manager must be held responsible for compliance activities. If the Service Managers says, “There are not enough hours in a day”, “this environmental compliance is not my duty”, or “it’s difficult to monitor what the techs are doing viz-a-viz throwing not fully empty containers into the trash”, it’s time to have a talk with your Manager.

HAZARDOUS WASTE DISPOSAL VIOLATIONS

An average dealership generates hazardous waste, such as used motor oil, used absorbent (used to absorb hazardous waste), used coolant, used parts washer fluid, non-metal used oil filters, waste thinner (from body shop), contaminated fuel etc.  Other waste, such as tires and used automotive batteries, are not classified as hazardous but they are regulated. You cannot dispose of that waste in dumpsters; instead, it must be recycled. https://www.dtsc.ca.gov/HazardousWaste/upload/HWM_FS_Generator_Requirements.pdf Violations that are being penalized by regulators are as follows: –Illegal Disposal: Disposing automotive fluids, batteries, aerosol cans, electronic devices and other regulated waste in the dumpster. –Employee Training: Employees must be trained to place hazardous waste in properly labeled containers. Unidentified waste should not be mixed with other waste. Employees should seek guidance from their manager regarding the proper storage of unidentified waste for later disposal through a licensed hauler. –SPCC Plan: Storage capacity above 1320 gallons needs a Spill Prevention Control & Countermeasures (SPCC) Plan. Secondary containment and covered tank areas minimize the accidental spill to storm sewers. Employee training on SPCC is also mandatory. Keep daily inspection log in files for 3 years.Waste – –Tank Structural Assessment (Title 22): Waste tanks need a structural assessment every 5 years from a registered Professional Engineer (PE). However, facilities generating less than 1000 kg/month are exempt from this requirement. Recently, regulators are more stringent on this code enforcement.California Environmental Reporting System (CERS): All facilities with hazmat in excess of 55 gallons or 200 cu. ft. of compressed gas must report hazmat on CERS. This reporting is similar to the federal Tier II reporting requirements. Inventory, facility maps, and the emergency contact list must be submitted and updated annually. –Spill Response: Employee training is mandatory for spill response. None of the facilities were penalized by the DA’s office for illegal disposal off the lot via a leak or a spill. If such a spill was to happen and the discharge reached the storm sewers, the DA or the EPA would demand the availability of spill response training and availability of spill kits. Spill kits must consist of snakes, absorbent pads, and bags of absorbent. Kits must be capable of mobilization in a matter of seconds. –Containers Labeling: Proper and clear labeling are equally important in guiding employees to place waste in the correct containers. Dealers must contact their hazardous waste haulers and others to provide them with labeling that is compliant for all hazardous waste and universal waste containers. Labeling may need special waste codes and accumulation start dates.

Dumpster Review & Other Miscellaneous Matters: Management must control what goes into dumpsters and trash cans to ensure that risks are minimized. Some practical tools that aid operations are listed as follows: –Eliminate Aerosol Cans & Quart Containers: Bulk purchase of brake cleaner with refillable cans will eliminate majority of aerosol cans going into the dumpster. Similarly, buying oil and ATF in bulk will eliminate quart bottles entering the dumpster. Buying in bulk also is much cheaper as you get a volume discount and eliminate retail packaging. –Oil Saver Equipment: Employees should be encouraged to drain the quart containers, when used, and placed on top of the used oil dolly to drain. Equipment to drain 5 quarts of oil simultaneously may be placed in shop bays. The techs place the quarts in the drain equipment and by the time they return after completing paperwork and returning the car to the lot, the quarts are drained, empty and then disposed into the trash can. https://www.toolplanet.com/product/Hansen-Global-Inc-69002-Oil-Saver-Bottle-Drain/oilsaverfunnel?gclid=EAIaIQobChMIpp7Zzv6m5QIVD6rsCh31Ew59EAQYAyABEgIIfPD_BwE

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. 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). Our newsletters can be accessed at www.epaoshablog.com. Your comments/questions are always welcome. Please send them to sam@cellyservices.com.

Cal/OSHA has amended regulations, effective January 1, 2020, which changes the definition of “serious injury or illness” that must be reported to Cal/OSHA within 8 hours. There are also changes to the definition for repeat violations under Cal/OSHA. The most cited regulations for 2017 & 2018 list is also public now. The new regulation, AB 1805, changes the definition of serious injury that must be reported to Cal/OSHA within 8 hours is as follows: “Serious injury or illness” means any injury or illness occurring in a place of employment or in connection with any employment that requires inpatient hospitalization, for other than medical observation or diagnostic testing, or in which an employee suffers an amputation, the loss of an eye, or any serious degree of permanent disfigurement, but does not include any injury or illness or death caused by an accident on a public street or highway, unless the accident occurred in a construction zone.

Note: Fed-OSHA definition of serious injury and the reporting period are different and not as stringent as Cal/OSHA.

Changes in effect for California employers from 1/1/20 are as follows:

8 Hour Reporting for Serious Injury: Any inpatient hospitalization for work related injury or illness, for anything other than medical observation or diagnostic testing must be reported. In the past, an employee was required to be hospitalized for 24-hours before Cal/OSHA reporting requirements were triggered.Repeat Penalty: Major changes to the Cal/OSHA repeat penalty assessment. Now, the repeat will be assessed for all violations of a similar code in the last five years. In the past, Cal/OSHA went only 3 years into the record. We believe that Cal/OSHA has decided to mirror the feds, where the repeat penalty calculation has always been 5 years. The repeat penalty is assessed to all dealerships within common ownership. If the dealership has a store in Las Vegas where they were cited for failure to have an eye wash, and now the same group with a dealership in Los Angeles is cited without an eye wash, the dealership in LA will face the repeat penalty fee – which is now $132,598!

Type of Violation

Penalty

General

$750 per violation

Serious

$13,260 per violation

Failure to Abate

$13,260 per day beyond abatement date

Willful or Repeated

$132,598 per violation

Criminal(willful violation causes employee death)

$250,000 for individual6 months prison$500,000 for corporation

Cal/OSHA Top Citations Issued in 2017 & 2018 are as follows:

No Injury and Illness Prevention Program – 2,438No Heat Illness Prevention Program – 1,196Failing to Report Serious Injuries, Illness – 808No Hazard Communication Program – 639No Air Compressor Operating Permit – 531No ANSI Approved Eye Wash Unit – 483No Safety Inspections / Failing to ID Hazards – 424Fire Extinguishers not checked monthly – 335Failing to Lockout Machine before Servicing – 334Electrical Panels Blocked – 282No First Aid Kit at work site – 267

FED-OSHA TOP 10 citations Issued for 2019 are as follows:

1. Fall Protection – 6,010 violations:  Falls, primarily from ladders and roofs, accounted for 384 fatalities in 2016. Any time a worker is at a height of 4 feet or more (30 inches or more in CA), the worker is at risk and needs to be protected. 2. Hazard Communication – 3,671 violations: Employers are required to provide a written Hazard Communication Program, label hazardous chemicals, provide a Safety Data Sheet for each chemical, and document employee training. 3. Scaffolding – 2,813 violations: Primarily applicable to the construction industry. 4. Lockout/Tagout – 2,606 violations: Specific procedures and practices safeguard employees from the unexpected energization or startup of machinery and equipment. A written program and employee training is mandatory (annually). Employees working on automobiles must comply by isolating energy to the engine to prevent inadvertent movement during repair or service. A lockout kit including locks should be available. 4. Respiratory Protection – 2,450 violations: Body shop employees need specific training on policies (written) and practices involving the use of respirators during auto refinishing operations. Training on respiratory protection, fit testing, user seal check, and respiratory cleaning procedures are mandatory, and so is the OSHA Respirator Medical Evaluation Questionnaire. When an employee wears a respirator, even when it is not required under the regulation, information on proper usage, including limitations, must still be provided. 6. Ladders – 2,345 violations: Limit ladder use to trained and experienced staff only. Secure ladders with a chain to prevent usage by untrained staff. 7. Powered Industrial Trucks (Forklifts) – 2,093 violations: The high number of fatalities associated with forklifts and high number of violations associated with powered industrial truck safety tell us that many workers are not properly trained to safely drive potentially hazardous equipment. OSHA compliance requires training in these specific activities: forklift operations, loading and unloading, and vehicle maintenance. Evaluating an operator every three years is also mandatory.8. Fall Protection Training Requirements – 1,773 violations: This moved up a notch from the 2017 number 9 spot. Dealerships must protect employees working on the parts second floor while loading or unloading parts. 9. Machine Guarding – 1,743 violations: Moving machine parts has the potential to cause severe workplace injuries, such as crushed fingers or hands, amputations, burns, or blindness. Safeguards, including anchoring machinery, are essential for protecting workers from these preventable injuries. Any machine part, function, or process that may cause injury must be safeguarded. When the operation of a machine or accidental contact with the machine may injure the operator or others in the vicinity, hazards must be eliminated or controlled. Moving parts in automobiles, grinders, and brake lathes are all subject to this regulation. 10. Eye & Face Protection – 1,411 violations: Essentially reinforce your Person protective Equipment (PPE) policy and ensure all your employee wear eye and face protection as necessary.

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. 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). Our newsletters can be accessed at www.epaoshablog.com. Your comments/questions are always welcome. Please send them to sam@cellyservices.com.

The State of California enacted an emergency regulation earlier in 2019 to protect employees from hazards related to wildfire smoke (https://www.dir.ca.gov/DIRNews/2019/2019-66.pdf). The emergency regulation is in effect until January 28, 2020 with the possibility of two 90-day extensions. The regulation requires employers to take action when the Air Quality Index (AQI) for airborne particulate matter (PM 2.5) is 151 or greater (see Note below). Outdoor occupations such as agriculture, construction, landscaping and shops with open layouts are affected. Also, when an employee spends one hour or more outside over a course of a shift must comply with this regulation. High traffic areas, such as the showroom, where the front doors are opened frequently are also impacted.

Action Needed: At the beginning of the shift and periodically thereafter the employer must check the AQI for PM 2.5. One way to find out the PM 2.5 AQI data in real time in the outdoor space is to visit www.airnow.gov and use your zip code.  There are other government websites providing this data on the web. The action taken by the employer may consist of engineering control or administrative control. Engineering control would be placing the employees in a building with an air filtration system that reduces the PM 2.5 below 150 and administrative control would be to place them in an area that has air with PM 2.5 below 150. The regulatory burden increases significantly when the PM 2.5 exceeds 500 in the form of advanced respirator training and management (See CA Title 8 Section 5144).

Respirators: Respirators must be provided to employees when both engineering and administrative controls are not feasible. The N95 disposable particulate type respirator to be used to protect employees are available for 50 cents at your local hardware store. Safe use, maintainence and product limitations noted on the box of respirators must be reviewed. Cal/OSHA regulations https://www.dir.ca.gov/title8/5144d.html (Appendix D) has a specific memo on usage of such respirators that must be reviewed as well.

Training: The employees must be trained on the new regulation including the health effects of wildfire smoke. Information at https://airnow.gov/index.cfm?action=smoke.index may be utilized to train employees and those at higher risk of health issues related to wildfire smoke. Training should include how employees can obtain air quality information and medical treatment, if necessary. Employers should establish a method for employees to inform them about worsening air quality and related adverse health effects.

Note: PM 2.5 refers to tiny particles or droplets in the air that are two- and one-half microns or less in width. Like inches, meters and miles, a micron is a unit of measurement for distance. There are about 25,000 microns in an inch. The widths of the larger particles in the PM 2.5 size range would be about thirty times smaller than that of a human hair.

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. 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). Our newsletters can be accessed at www.epaoshablog.com. Your comments/questions are always welcome. Please send them to sam@cellyservices.com.