CHANGES TO HAZARDOUS WASTE DISPOSAL FEE FOR CA DEALERSHIPS

The state of California has levied a fee for many years on hazardous wastes generated by auto dealers and others.  The fee structure specifically exempted used oil generated at auto dealerships.  California SB 158, effective January 1, 2022, specifically removes the exemption on used oil from the fee and adds other wastes that are now subject to the fee.  The hazardous waste Generation and Handling (GH) fee is a flat rate per ton or fraction of a ton on generators of hazardous waste for each generator site that generates five or more tons of hazardous waste at a site in California within a calendar year.

Wastes subject to this fee include recycled hazardous waste, non-manifested treated wood waste, non-manifested universal waste, imported waste, and waste sent outside California for disposal. Used motor oil now gets added to the category, where previously only waste coolant (CA code 134), oily water (CA Code 223), and waste paper filters (CA code 352 or 223) were present.  In the past, the first 5 tons were exempt from taxes, most claimed exemption.  Not anymore.  Also, if you are punching or crushing metal oil filters, under DTSC guidelines, you can dispose of it as scrap metal and hence not be subject to this fee.  If you decide to dispose of used metal oil filters as hazardous waste, those metal filters get added to your hazardous waste tax calculations. 

HOW THE FEE IS CALCULATED

The hazardous waste generation and handling fee is generally due regardless of the waste’s final disposition. Weight tickets should be maintained to support the actual weight/quantity being reported. Please reference DTSC fee chart below:

Generation and Handling Fee FY 2022/23

Rates	Due Dates
First Prepayment (50%)	November 30, 2022 (during reporting period)
Final Payment	February 28, 2023 (after the reporting period)
Fee Rate: $0 if less than 5 tons/year
$49.25/ton (or fraction of a ton) for aggregate waste of 5 or more tons/year

Don’t know your tonnage?

Please contact your dedicated waste hauler(s) to determine total tonnage. Once determined, please register online with CDTFA and complete the fee process. Maintain documentation of fee completion for your records.  Finally, we note that this is a tax/fee matter and you must consult your tax consultant on calculations and record retention requirements.

DISCLAIMER: The contents of this newsletter are 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 in Arizona, California, Hawaii, Idaho, Nevada, New Mexico, New York, Texas, and Virginia comply with EPA and OSHA regulations for over 35 years. Sam is a Certified Safety Professional (No. 16515) certified by the National Board of Certified Safety Professionals. Sam received his BE (1984) and MS (1986) in Chemical Engineering, followed by a J.D. from Southwestern University School of Law (1997). Sam is a member of the American Chemical Society (No. 31176063), American Industrial Hygiene Association (No. 124715), and National Association of Dealer Counsel (NADC). Sam also serves on the Board of Orange County American Industrial Hygiene Association and on CA Industrial Hygiene Council (CIHC). Our newsletters can be accessed at www.epaoshablog.com. Your comments/questions are welcomed. Please send them to sam@cellyservices.com.

In recent years, stormwater management has become extremely important as EPA and other regulating agencies have concluded that storm (rain) water picks up enough contaminants from parking lots and other industrial facilities that it is a major source of pollution to our rivers and oceans.  The problem is so severe that many industrial facilities are being directed to manage their storm water as it leaves their premises.  Auto servicing facilities are not on that list, as yet.  However, municipalities are required to meet pollutant discharge criteria to rivers and oceans and to meet this criteria they are directing auto facilities to minimize the contaminants to the storm sewers.  Auto facilities are hence required to set up programs and training so as to minimize contaminants to the stormwater.

The enclosed document, Best Management Practices (BMP) for stormwater from Vehicle Maintenance Facilities, outlines procedures and training guidelines for management and employees that can help minimize pollutant discharge to the stormwater.  Please copy and circulate the document to all your shop management and staff.  We believe that with the installation of training and procedures outlined in the document, the dealership can attain compliance with the local, state and federal guidelines that require BMP for stormwater management at your facility. 

We further note that if you are constructing a new facility or remodeling an existing facility, the local municipality may require you to actually manage the stormwater, i.e., treat stormwater, prior to discharge to the local storm drain.  The details of such treatment procedures are best handled at the local level.  If you have any questions or comments, please do not hesitate to call Celly Services, Inc. at (562) 704-4000.

SOUTH COAST AQMD ANNUAL REPORTING OF GASOLINE USAGE   All dealerships with aboveground storage tanks (AST) and/or underground storage tanks (UST) must report monthly throughput data for each month of 2022 and the total to the SCAMQD by fax to (909) 396-3761.  Deadline for reporting is March 1, 2023.  SCAQMD Form to report data is attached. Rule 461(e)(7)(D). http://www.aqmd.gov/docs/default-source/rule-book/rule-iv/rule-461.pdf NOTE 1: Post a copy of the permit from SCAQMD in the office area near the tank. NOTE 2:  Follow all the conditions listed on the permit including annual back pressure test etc.. NOTE 3: All records shall be retained for 24 months and made available at the gasoline dispensing facility for inspection by the Air Protection Control Officer (APCO).

BAY AREA AQMD ANNUAL REPORTING OF GASOLINE USAGE   All dealerships who dispense gasoline shall maintain records of the quantity of gasoline dispensed (throughput data) from the storage tanks during the last 12 month period.  BAAQMD Form to store the data is attached.  Rule 8-7-503. https://www.baaqmd.gov/~/media/dotgov/files/rules/reg-8-rule-7-gasoline-dispensing-facilities/documents/rg0807.pdf?la=en&rev=55e12318cc9f47c1bd38690a14c85540 NOTE 1: Post a copy of the permit from BAAQMD in the office area near the tank. NOTE 2:  Follow all the conditions listed on the permit including annual back pressure test etc.. NOTE 3: All records shall be retained for 24 months and made available at the gasoline dispensing facility for inspection by the Air Protection Control Officer (APCO).

Background: On October 15, 2022, the American National Safety Institute (ANSI) requirements for First-Aid kits changed.  In this newsletter, we discuss the changes to the regulatory requirements for first-aid kits, guidelines, and training.  California and Federal regulations mandate that employers ensure ready availability of medical personnel for advice on matters of industrial health or injury. 

CAL/OSHA:  California regulations mandate that a first-aid kit approved by a consulting physician be available on the premises for every work person on the job.  A consulting physician is a medical doctor who is well versed with dealership operations and has knowledge of typical hazards and accidents on the job (Ref: T8CCR3400 (a) and (b) and (c)).

Fed-OSHA: Regulations state that an employer must have “adequate first-aid supplies…readily available,” although specific first-aid supplies are not listed. Fed OSHA has referred employers to ANSI as the source of guidance for the minimum requirements for first aid kits and supplies; it does so in Appendix A to 1910.151. On April 15, 2022, ANSI approved ANSI/ISEA Z308.1-2021 effective October 15, 2022, the sixth revision to the voluntary industry consensus standard since its inception in 1978. 

New requirements for both Class A and Class B First Aid kits include more hand sanitizer (thanks to COVID-19), and a foil blanket, since it serves multiple purposes such as emergency water proofer, windbreaking wrap, and treating hypothermia. Additionally, Class B kits now require specific types of tourniquets to prevent blood loss, and distinct from those used for drawing blood.  Splints are also a requirement for Class B kits. 

Employers may adopt the ANSI standard or request their local occupational injury clinic to provide a list of items for the first-aid kit.They should, however, be selected only upon completion of hazard assessment of the work environment and by a person competent in first-aid and knowledgeable of the hazards specific to that workplace (Ref: 29CFR1910.151(b)). 

Hazard assessment involves reviewing workplace hazards, typical injuries that have happened (see Log 300) or could occur at the workplace, and the availability of the supplies necessary to respond to those injuries.  Risk assessment includes looking at Bureau of Labor Statistics (BLS) or OSHA injury data.  The M.D. at the local clinic responding to occupational injuries can be a source of guidance as well.  Inspect and refill First-Aid kits monthly. Keep a written log. Discard expired items promptly.  Disinfect cabinet surfaces frequently.  Ensure labeling and markings are legible and permanent.  Check that each kit and its location is visibly marked.  Place signs at a conspicuous location that indicate the locations of First-Aid kits on site.

While the regulations are silent on number of kits, employers must consider whether multiple kits are needed based upon facility layout, number of employees and access to the kits during the work turn.  The distance from the clinic must also be part of the decision-making process.

Class A vs. Class B

Class A kits have contents capable of response to most common workplace injuries including minor burns and eye injuries.  Class B kits are intended to treat injuries in densely populated areas and high-risk environment workplace such as factories, foundries, and warehouses.

ANSI Standard Class A Kit:

Required Min. Fill Z308.1-2021 (eff. Oct. 15, 2022)

16 Adhesive Bandage 1×3 in.

1 Adhesive Tape 2.5 yd. (Total)

10 Antibiotic Application 1/57 oz.

10 Antiseptic 1/57 oz.

1 Breathing Barrier

1 Burn Dressing (Gel Soaked) 4×4 in.

10 Burn Treatment 1/32 oz.

1 Cold Pack 4×5 in.

2 Eye Covering w/Means of Attachment 2.9 sq. in.

1 Eye/Skin Wash 1 fl. oz. (Total)

1 First-Aid Guide

10 Hand Sanitizer 1/32 oz. (increased as of Oct. 2022)

2 Medical Exam Gloves

1 Roller Bandage 2 in. x 4 yd.

1 Scissor

2 Sterile Pads 3×3 in.

2 Trauma Pads 5×9 in.

1 Triangle Bandage 40x40x56 in.

1 Foil Blanket 52×84 in (added as of Oct. 2022)

ANSI Standard Class B Kit: The Type B kit has a Splint and Tourniquet added to the list above with increased number of supplies listed for Type A. 

Types of First-Aid Kit Containers:

• Type I containers are used in stationary indoor settings.  No rough handling.
• Type II containers are used in portable indoor settings. No rough handling.
• Type III containers are used for mobile, indoor/outdoor settings.
• Type IV containers are used for portable use in outdoor settings where rough handling is a factor.

Commentary:  Dealership management should make prudent decisions on the number and location of the first-aid kits.  Get at least one kit for every 40 employees.  First, keep in mind that all areas of employment should have access to kits.  For example, if only the sales department is open on a Saturday, then a kit must be made available to employees in that area.  Secondly, these kits are subject to pilferage and abuse.  To avoid pilferage, the first-aid kit may be placed in the office or open view of the manager.  If an employee is observed using multiple bandages more often than others, the employee can be counseled on safety and proper work procedure to avoid slicing his/her hand multiple times a day!  Make sure that access is not compromised, i.e., kits must remain completely accessible when employees are present. 

Employers who choose not to have first-aid kits violate the law and also risk loss of productive time when employees must rush to the local drug store for a bandage every time, they incur an injury.

Ref: Information from www.osha.gov and http://www.dir.ca.gov were used to prepare this newsletter. 

DISCLAIMER: The contents of this newsletter are 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 in Arizona, California, Hawaii, Idaho, Nevada, New Mexico, New York, Texas, and Virginia comply with EPA and OSHA regulations for over 35 years. Sam is a Certified Safety Professional (No. 16515) certified by the National Board of Certified Safety Professionals. Sam received his BE (1984) and MS (1986) in Chemical Engineering, followed by a J.D. from Southwestern University School of Law (1997). Sam is a member of the American Chemical Society (No. 31176063), American Industrial Hygiene Association (No. 124715), and National Association of Dealer Counsel (NADC). Sam also serves on the Board of Orange County American Industrial Hygiene Association and on CA Industrial Hygiene Council (CIHC). Our newsletters can be accessed at www.epaoshablog.com. Your comments/questions are always welcome. Please send them to sam@cellyservices.com.

Background:  Since July 1992, regulations promulgated under the CAA require that motor vehicle air conditioning refrigerant be recycled.  In 2006, auto dealers in San Francisco area were penalized for violations arising under this act.  Serious penalties and legal drama followed. (https://www.epa.gov/archive/epapages/newsroom_archive/newsreleases/bfbf6466f34e57b785257368007177bc.html). We must note that these CAA regulations are federal regulations and are applicable to all auto dealers in the US and not to San Francisco dealers alone.  To achieve compliance under this regulation, dealers must act as follows:

• Clean Air Act Section 609 Technician Certification Program:  All employees working on A/C systems must be trained and tested by a program approved by EPA on how to properly recover and recycle refrigerant (such as Freon 12, HFC-134(a) or any other EPA approved refrigerant).
• Clean Air Act Section 609 Approved Equipment:  Section 609 mandates that technicians must use EPA approved equipment to perform refrigerant recovery and recycling. Visit https://www.epa.gov/mvac/section-609-certified-equipment for a list of approved equipment. 

Technician Certification:  All shop employees repairing/servicing/diagnosing or working in any way on A/C systems must receive training and certificate from an EPA approved training program.  The list of training programs is available on https://www.epa.gov/mvac/section-609-technician-training-and-certification-programs.  We note that training programs on A/C systems provided by auto manufacturers are a requirement to repair and service automobiles, but they do not in any shape or form help in compliance with this law.  Training programs provided by other government bodies such as the South Coast Air Quality Management District also do not help achieve compliance with this law.  The training program undertaken by the employees must be on the EPA approved list.

We recommended that you do not allow any employee without training to work on A/C repair or service unless the employee has provided the management with a copy of certification from an EPA approved body.  A copy of the certificate should be retained in the Black Box under the file “Air Quality” and a copy sent to Human Resources (Business Office) for retention in the employee file.  You may need a copy of the certification three years beyond the date of departure of the tech!  (More reading on this issue is available at https://www.epa.gov/mvac/epa-regulatory-requirements-mvac-system-servicing)

What Happened:  In the parking lot of a dealership in southern California, an individual was rinsing cars with DI water using pressure washer equipment located on the back of a pickup truck.  The pressure washer had a gasoline powered motor.  During the course of rinsing, the gasoline level went low.  The operator got a can full of gasoline and started pouring gasoline into the gasoline tank on the pressure washer while the motor was running.  A fireball and explosion resulted.  The gasoline spilled on the plastic bed of the pickup truck and the flames quickly melted the plastic.  Surprisingly, the operator suffered minimal injuries and there were no damages beyond the pressure washer equipment and bed of the pickup truck.  The General Manager noted that years of safety traning and preparedness paid off.  Employees trained by CSI, responded quickly with fire extinguishers, and put out the fire. The fire could have seriously harmed the operator and expanded beyond the truck.  Safety training in both handling and storage of flammable materials and emergency response is paramount to avoid such types of accidents.

Gas Can:  The maintenance and operation of gasoline tanks, both aboveground and underground, has become expensive, highly regulated, and burdensome.  Automobile dealers have resorted to gas dolly equipment where a small amount of gasoline can be added to each new automobile delivered to the dealership.  We note that automobiles delivered to dealerships from manufacturers have very small amounts of gasoline; this being a result of U.S. Department of Transportation (DOT) regulations, which dictate that minimal amounts of gasoline be retained in gas tanks of vehicles in transport.  This memo briefly discusses the DOT, OSHA, and CARB regulations applicable to the gas can used to transport from a public gasoline station to dealerships for a later fill in automobiles on the lot.

Federal DOT Regulations:  Gasoline transport is discussed in Section 173.6 of the DOT regulations under “material of transport exceptions.”  The least burdensome regulations require that a container being used to transport gasoline must be less than 8 gallons per container and a maximum of 72 total gallons (440 pounds) on the vehicle.  At this level, only a regular driver’s license is needed, and no placarding is required for the vehicle.  Driver training must include Hazard Communication Program (29 CFR 1910.1200) and DOT Materials of Trade training.  Transport of gasoline in the amount greater than listed above increases the regulatory burden. https://www.nwcg.gov/sites/default/files/publications/pms442.pdf  http://www.gpo.gov/fdsys/pkg/CFR-2011-title49-vol2/pdf/CFR-2011-title49-vol2-sec173-6.pdf

Federal OSHA Regulations: Safety regulations and other safety concerns for gasoline containers are as follows:

• Properly labeled container with hazard warnings.  Wear eye protection and nitrile gloves.
• The containers must be secured in the vehicle.
• Containers UL certified.
• Containers must be closed so as to minimize the risk of spill and creating a fire hazard.
• Spill proof spouts also lock in vapors so as to avoid vapor release while in storage. Do not overfill gas tanks on automobiles. 
• Store on a flat surface and transfer in areas with good ventilation or open areas.
• 29 CFR § 1926.152(a)(1) states that “Only approved containers and portable tanks shall be used for storage and handling of flammable liquids. Approved safety cans or DOT approved containers shall be used for the handling and use of flammable liquids in quantities of 5 gallons or less…”
• Bonding of containers to eliminate static electricity both at the time of filling up the containers and when transferring from container to container should be undertaken. Keep containers on the ground when filling and not on the bed of the truck. Use grounding wire when necessary. Keep nozzle in contact with can during filling. Do not fill containers over 95% to allow for expansion. Spilled gasoline must evaporate before containers are put on the truck.
• Transport vehicle must have a spill kit available to contain an accidental spill. Operator must be trained on containing, cleaning, and managing an accidental spill.
• Ignition sources such as open flames, torches, running motors, electrical tool & equipment,  etc. must be at least 20 feet (measured horizontally) from the flammable material 29 CFR § 1926.352(c).
• One 5-B:C or two 4-B:C fire extinguishers are mandatory on the vehicle transporting gas.

Plastic or Metal: Studies at Worcester Polytechnic Institute’s Department of Fire Protection Engineering, as reported by NBC News in late 2013, have indicated that under certain conditions, plastic cans are vulnerable to fires with an explosive force. The conditions that present the higher risk include having a very small amount of gasoline (a few teaspoons) inside the gas can, cool temperatures, tilting the can at 42 degrees (typical pour angle) and of course a spark! The employees should be trained to avoid these risky conditions and even buy metal cans in the future. https://www.nbcnews.com/news/world/watch-gas-can-explode-lab-test-flna2d11691287

CA Air Resources Board (CARB):  As of July 1, 2007, all Portable Fuel Containers (PFC) sold in California must be certified by the Air Resources Board as meeting low-emission standards and regulatory requirements. This regulation is applicable to manufacturers and retailers who place the gas cans in the stream of commerce. Only containers of ten gallons or less are covered by this regulation, so the sale of a twenty-five gallon gas caddy for shop use is exempt from CARB regulations. The following table provides a listing of those CARB approved containers certified for sale. http://www.arb.ca.gov/consprod/fuel-containers/pfc/eo/eo.htm

Summary:  CA based businesses have only CARB approved containers available. Other states may use these CARB approved containers with vapor locks that are spill proof and emit negligible flammable vapors and hence, are safer. Training in hazardous materials, including information on risks associated with plastic cans, should be provided to employees. Following safety and operation instructions on the PFC is also mandatory.

DISCLAIMER: The contents of this newsletter are 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 in Arizona, California, Hawaii, Idaho, Nevada, New Mexico, New York, Texas, and Virginia comply with EPA and OSHA regulations for over 35 years. Sam is a Certified Safety Professional (No. 16515) certified by the National Board of Certified Safety Professionals. Sam received his BE (1984) and MS (1986) in Chemical Engineering, followed by a J.D. from Southwestern University School of Law (1997). Sam is a member of the American Chemical Society (No. 31176063), American Industrial Hygiene Association (No. 124715), and National Association of Dealer Counsel (NADC). Sam also serves on the Board of Orange County American Industrial Hygiene Association and on CA Industrial Hygiene Council (CIHC). Our newsletters can be accessed at www.epaoshablog.com. Your comments/questions are always welcome. Please send them to sam@cellyservices.com.

Senate Bill 606 makes amendments to California Labor Code that became effective January 1, 2022, giving Cal/OSHA expanded powers and increased penalties.  The bill creates two new categories of violations; “enterprise-wide” and “egregious.”  The bill also authorizes Cal/OSHA to issue a subpoena should an employer fail to provide Cal/OSHA with information related to an investigation.  Citations for enterprise-wide violations have the same penalties as willful or repeat violations, with a maximum penalty of up to $136,532 per violation.  Below, we discuss these categories and subpoena powers with their potential impact on California employers.

ENTERPRISE-WIDE VIOLATIONS (SECTION 6317 of California Labor Code)

The bill creates a rebuttable presumption of an enterprise-wide violation when Cal/OSHA finds either of the two conditions below:

·         The employer has a written policy or procedure that violates any Cal/OSHA rule, order, or regulation as stated in the California Labor Code.

·         Cal/OSHA has evidence of a pattern or practice of the same violation or violations committed by the employer at multiple worksites.

When Cal/OSHA enforcement recognizes that an employer has multiple worksites that may have common policies and procedures, an enterprise-wide citation and abatement orders can be issued.  The employer will then have to prove that the other worksites have different policies, procedures, and written programs and hence the violation cannot be enterprise-wide.  The penalties for enterprise-wide violations are same as the current penalties for repeat violations with a maximum of $136,532 per violation.  This can be problematic for employers with multiple worksites in California that share a common safety program such as Illness & Injury Prevention Plan (IIPP) or COVID-19 Prevention Plan (CPP).

EGREGIOUS VIOLATION (SECTION 6317.8 of California Labor Code)

Cal/OSHA finds an employer has committed an “egregious violation” if one or more of the following are true:

• The employer, intentionally, through conscious, voluntary action or inaction, made no reasonable effort to eliminate the known violation.
• The violations resulted in worker fatalities, a worksite catastrophe, or a large number of injuries or illnesses. For purposes of this paragraph, “catastrophe” means inpatient hospitalization, regardless of duration, of three or more employees resulting from an injury, illness, or exposure caused by a workplace hazard or condition.
• The violations resulted in persistently high rates of worker injuries or illnesses.
• The employer has an extensive history of prior violations.
• The employer has intentionally disregarded their health and safety responsibilities.
• The employer’s conduct, taken as a whole, amounts to clear bad faith in the performance of their duties.
• The employer has committed a large number of violations so as to undermine significantly the effectiveness of any safety and health program that may be in place.

SB 606 requires Cal/OSHA to treat each employee exposed to an egregious violation as a separate violation and issue fines and penalties commensurate with such violations.  The employer can be subject to a significant multiplier in penalties when many violations are found to have impacted multiple employees.  Cal/OSHA has issued multiple penalties under COVID-19 Emergency Temporary Standards when the employer failed to implement policies such as separation, sanitizing or face mask protocols.

SUBPOENA POWERS (SECTION 6317.9 of California Labor Code)

The bill provides Cal/OSHA with subpoena powers for information related to an investigation.  Cal/OSHA has already had a formal document request process during investigations. (https://www.dir.ca.gov/DOSHPol/Document_Request1AY_072308.pdf).  The bill adds that Cal/OSHA can issue a subpoena if the employer or related entity fail to promptly provide the requested information within a reasonable period of time.  We have observed that DOSH Legal has, in the past, issued “Requests for Discovery” following an employer appeal of serious citations.  The subpoena power adds a layer to the discovery tools available to Cal/OSHA.  The term ‘reasonable time’ is not defined in the bill making it subject to the discretion of the Cal/OSHA District Manager conducting the investigation.

The new law also allows Cal/OSHA to seek injunctive relief from the Superior Court restraining the use of an equipment or process at a specific worksite if the Division has grounds to issues a citation without any bond requirements.  This is another addition to the enforcement powers of Cal/OSHA. In the past, injunctive relief was only available when the “…machine, device or apparatus or equipment constitutes a serious menace to the lives or safety…” 

Summary:  Employers with multiple locations must have their written safety programs and policies reviewed and vetted by professionals and ensure compliance across sites as risks and penalties can be significant.  Subpoena power and other discovery tools may lead Cal/OSHA to add citations and related penalties.  Special attention should be given to programs including, but not limited to, CPP’s, IIPP’s, Hazard Communication Program, and Personal Protective Equipment Program.  Where applicable, making safety programs location specific may also help.  Last, but not least, employers should treat Cal/OSHA citations with urgency and caution.  Employers have 15 days to file an appeal.  If a timely appeal is not filed, the citations and penalties cannot be contested.  In high stakes cases competent counsel should be retained to handle investigations, file appeals for citations, if any, and provide a professional defense.

Source: https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220SB606

DISCLAIMER: The contents of this newsletter are 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 in Arizona, California, Hawaii, Idaho, Nevada, New Mexico, New York, Texas, and Virginia comply with EPA and OSHA regulations for over 34 years. Sam is a Certified Safety Professional (No. 16515) certified by the National Board of Certified Safety Professionals. 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.

IN THIS NEWSLETTER WE COVER
Eye Injury Prevention Requirements & Regulation

Use the right protection for eyes (Automotive Industry)

Prescription Glasses are not Safety Glasses

Policy, Training, and Enforcement Issues

CDC reports that more than 2000 workers sustain a job-related eye injury each day. About a third of the injuries require a trip to the hospital while hundreds of these require days away from work.  The cost of these injuries results in lost production exceeding $300 million.  Eye injuries can be prevented by using proper eye protection.  The harsh reality is that eye injuries can be permanent in nature.

Regulations: OSHA regulations mandate that employees wear eye protection where there is a risk of an eye injury.  Specifically, the regulation states in part that “the employer shall ensure that each affected employee uses appropriate eye or face protection when exposed to eye or face hazards from flying particles, molten metal, liquid chemicals, acids or caustic liquids, chemical gases or vapors, or potentially injurious light radiation.”  See 29 CFR 1910.133 (a) (1) (Fed) or 8 CCR 3382 (CA).

Eye Protection: There are four general types of eye protection used in the automotive industry:

• Safety glasses
• Safety goggles
• Face shields
• Welding goggles & welding helmets

Before selecting an appropriate eye injury prevention device, the employer must complete a workplace hazard assessment. While safety glasses are the most versatile and commonly used injury prevention device, they have several limitations as discussed below.  Additional or alternative protection may have to be used.

Safety Glasses: Safety glasses are a base level protection against flying objects, tools, and relatively large particles.  Safety glasses do not provide protection from chemical splashes or prevent vapors entering the eyes. Safety glasses must meet the ANSI Z87.1 standard. Polycarbonate safety glasses with ultra-violet (UV) protection and scratch resistant and anti-fog coatings can be purchased for less than $3. Safety glasses have the limitation that they have small gaps at the top, side, and bottom.

Safety Goggles: Unlikesafety glasses, safety goggles provide 360-degree coverage around eyes with no gaps. Hence, they are ideal for protection from chemical splashes such as those caused by a battery explosion. For example, an electrical spark at the terminal may ignite the hydrogen accumulated inside the battery.  While a strap holds the goggles in place, the vents for air flow prevent fog from building up inside the goggles.

Face Shields:  Face shields are considered a secondary line of protection above safety glasses and safety goggles. Face shields alone are not considered adequate eye protection.

Welding Goggles & Welding Helmets:  Welding goggles and helmets are required to protect eyes during welding operations.  The minimum protective shade requirements depend upon the type of welding being performed. Welding helmets are versatile in that helmets are required for gas tungsten welding whereas a welding goggle can be used in oxygen cutting torches.  The gas welding and oxygen cutting requires a shade protection from 3 to 6 (depending on the plate thickness), gas tungsten arc-welding requires a minimum protective shade of 7 to 10 (depending upon the arc current).

American National Standards Institute (ANSI) Standards: ANSI standards are issued when equipment meets significant strength and endurance standards. All eye protection used in the shop must meet ANSI standards or not be used at the workplace.  ANSI standards are embossed on the protective equipment and can easily be verified.  For regular safety glasses the Z87.1 rating must be noted on the lens and the frame, along with the manufacturer’s name on frames.

Prescription Lenses:  Increased use of digital media has resulted in more adults using prescriptions lenses. The number of adults in the United States using prescription lenses is expected to increase beyond 75% of adults (165 million currently).  Prescription lenses and frames generally do not meet the safety requirements as they are not strong enough and have not undergone the testing procedures (ANSI standards).  Also, openings on the side and below the prescription lenses allow flying particles, liquids, and gases to enter the eyes and cause injury or irritation. 

Many employees are under the impression that prescription lenses provide similar protection to safety glasses.  This is not true.  The coverage area and the strength of the frame and lenses will always be suspect and hence they are not considered proper eye protection.  Some employees use the side shields on prescription lenses to get protection.  This is a false reliance as the strength of frame and lenses has not been established. Therefore, prescription lenses with side protection offer insufficient protection.

Prescription Safety Glasses:  Prescription safety glasses can be fabricated in a regular lens store or online.  Stores such as Costco or Walmart provide made-to-order safety glasses.  Online providers such as www.zenni.com, www.rx-safety.com and www.hi-techoptical.com  also ship prescription safety glasses.    Prescription safety glasses must be compliant with ANSI safety standards and carry a rating as well, for example ANSI Z87-2+.  

Over the Glasses Safety Glasses (OTG): Over the glasses safety glasses (OTG) may be worn as a substitute for prescription safety glasses.  OTG are available for a nominal price and should be made available to shop employees wearing prescription lenses.  Stock OTG in the same way you stock safety glasses.

Employer Policy:  Employer Eye Injury Prevention policies and programs must have integral elements as follows:

• Assess Hazards: Employees facing risks of flying objects must wear safety glasses.  Safety goggles must be worn where chemical hazards are present.  Bystanders must also be required to wear appropriate eye protection.
• Direct employees to keep safety glasses clean and store in sealed containers to protect from dust and scratches.  Damaged eyewear must be discarded for suitable replacement.
• Clearly explain the limitation of safety glasses, safety goggles and face shields to employees.  Also explain that prescription lenses are insufficient and unacceptable protection.
• Reduce hazards using engineering controls such as guards or other barriers.
• Communicate policies and train employees on eye injury prevention as part of EHS training programs.
• Enforce policies in a fair, consistent, and non-discriminatory manner. 
• OSHA requires that all personal protective equipment be made available to employees at no cost.  This should also be listed on employer policy.

Eye Wash Stations:  Proper eye wash station(s) must be positioned in the shop area and remain accessible at all times.  Inspection log and maintenance is a must.  See our earlier Newsletter on eye wash stations here.

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 in Arizona, California, Hawaii, Idaho, Nevada, New Mexico, New York, Texas, and Virginia comply with EPA and OSHA regulations for over 34 years.  Sam is Certified Safety Professional (No. 16515) certified by National Board of Certified Safety Professionals. 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..

In this Newsletter, we discuss as follows: ·   OSHA Citations and Penalties following a Serious Injury ·   Defense:  Independent Employee Act Defense (elements of) available to employer to seek relief from citation and penalties (1980 case). ·   Elements of California Illness & Injury Prevention (IIPP) Program www.dir.ca.gov/title8/3203.html ·   Changes to CA IIPP regulation (Section 3203 (a)(8)(A-F))

BACKGROUND:  An employee is seriously injured on the job and the employer calls OSHA as part of notification requirements.  OSHA investigates and slaps a $12,000 fine against the employer.  This happened to an automobile dealer in Los Angeles.  The employee had partially amputated a finger while diagnosing the engine on an automobile.  In their defense, the employer pled that the act of the employee that had caused the injury was an independent act of the employee and hence the employer should not be held liable.  (Ref.: Mercury Service, Inc. Docket No, 77-R4D1-1133).    

We must note that this case is not new but decades old.  We bring this to your attention because many employers do not have an enforcement policy for employees violating safety rules or policies.  Furthermore, many of these violations by employees go undocumented.  Enforcement and documentation may not only improve your safety record but also defend you, should a serious injury occur on your premises.

In order to prevail on this affirmative defense, which must be pled on the appeal to the California Occupational Safety & Health Appeals Board (https://www.dir.ca.gov/oshab/oshab.html) following the citation, an employer in California must prove and prevail on all five elements as follows:

1. The Employee was Experienced and Trained on the Job Being Performed:  In the case at hand, the employee was a diagnostic specialist on automobiles and the employer presented 79 training certifications from the automobile manufacturer out of which 30 were on engine diagnostic and performance checks.  Training certification from a nationally recognized body was also presented.  OSHA accepted the employers’ claim on this issue.  Interestingly, OSHA looked at all the safety training completed by the technician.  CSI’s advice is to keep your monthly safety training handy.
2. Employer Has a Well Devised Safety Program:  Employer must prove that a well-devised safety program, which includes employee training for their particular job assignment, is in effect.  The employer presented its IIPP Program and training from the service manual from the automobile manufacturer relevant to the service operations being done when the injury occurred. OSHA accepted this element of the defense as well.

Changes to the IIPP program in 2020 require that each employee have access to the IIPP.  We amended the IIPP and posted it on the CSI employee training portal.  A memo regarding the availability and location of the IIPP may be posted on the Employee Notice Board.  Elements of the IIPP are as follows:

• Responsibility
• Compliance
• Communication
• Hazard Assessment
• Accident/Exposure Investigation
• Hazard Correction
• Training and Instruction
• Recordkeeping
• Policy of Sanctions Against Employees Violating Safety Program:  The employer must have a policy of sanctions against employees violating safety rules or involved in unsafe acts.  The employer stated that one had never been required as the injuries were virtually non-existent and one was never deemed necessary.  The employer lost on this element as no earlier enforcement/disciplinary action had been documented.
• Employer Effectively Enforces the Safety Program:  The written disciplinary policy should be implemented.  An occasional write-up of an employee violating safety rules helps satisfy this element.  Examples include employees not wearing safety glasses when working on an automobile or not wearing a seat belt when operating a forklift.  In the case at hand, OSHA held that the enforcement element of the safety program had “no teeth” and that the safety program had not been enforced.  Employer lost this argument and the citation stood.
• Employee Caused the Safety Infraction Which He or She Knew was Contra to Employer’s Safety Requirement.  The employer must prove that the employee had knowledge of this safety requirement, violation of which caused the injury.  An example is that the employee knows the temperature and pressure inside a container.  A gauge showing temperature and pressure inside a vessel indicates to the employee the existing temperature and pressure and hence the employee is deemed to have knowledge.  The employer pled that the safety rules, acknowledged and signed by the employee were available.  Also, the shop manual (to service automobiles), which technicians reference repeatedly had outlined the safety procedures including relevant safety issues.

In summary, the employer lost for not having a policy enforcing sanctions against employees violating the safety program.  Written policy without implementation is not sufficient either.  A written IIPP where the facility is inspected on a periodic basis and hazards corrected is not enough.  A “Write-Up Policy” is needed.  Furthermore, such policies should be enforced consistently without discrimination.  A safety counseling form is available in the Black Box.  Disciplining employees is also a labor law issue and the advice of qualified counsel should be obtained.

OTHER STATES:  The case law cited above is California specific and does not carry weight in federal jurisdiction or other states.  The employers in other states may ask the tribunal to consider the Mercury case cited above as a persuasive matter.  

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 in Arizona, California, Hawaii, Idaho, Nevada, New Mexico, New York, Texas, and Virginia comply with EPA and OSHA regulations for over 34 years.  Sam is Certified Safety Professional (No. 16515) certified by National Board of Certified Safety Professionals. 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 regulations in 2020 to protect employees from hazards related to wildfire smoke. The regulation (https://www.dir.ca.gov/title8/5141_1.html) requires employers to act 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, an employee who 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. For wildfire smoke, use the AQI for PM2.5, which is measurement of fine particles in the air. An AQI over 150 is considered unhealthy for the general population. AQI over 101 can be unhealthy for sensitive groups and some workers with asthma and other conditions may feel unhealthy when the AQI is below 150. https://www.dir.ca.gov/dosh/wildfire/wildfire-faq.html                                                               

Exemptions to this regulation:

• Employer, through measurement, demonstrates that employees working inside a building has a PM2.5 that does not exceed a concentration of AQI of 151.
• Employees that are exposed to current AQI for PM2.5 of 151 or greater for total of one hour or less during a shift.

Action Needed: At the beginning of the shift and periodically thereafter the employer must check the AQI for PM2.5.  Look for AQI data in real time at www.airnow.gov and use your zip code.  Smart phones under the Weather app also provide the AQI data.  If employees are exposed to wildfire smoke, then the employer is required to find out the current AQI applicable to the worksite. If the current AQI for PM2.5 is 151 or more, the employer is required to:

• Check the current AQI before and periodically during each shift.
• Provide training to employees.
• Lower employee exposures.
• Provide respirators and encourage their use.

The action taken by the employer may consist of engineering control and/or administrative controls.  An example of an engineering control would be placing the employees in a building with an air filtration system that reduces the PM 2.5 below 150.  Cal/OSHA standard Title 8 CCR Section 5141.1 lists the enforcement based on the AQI as follows:

• AQI at or below 150: Generally normal.  Wildfire smoke regulation does not apply.
• AQI of 151-500: N95 respirator use is voluntary. Employees with certain health conditions need to follow medical guidance
• AQI exceeds 500: Employees must use N95 respirator with training and management.

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 is available for about $1/mask through various distributors.  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.  USE ATTACHED MEMO.  Information at www.airnow.gov 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 to inform employees about worsening air quality and related adverse health effects.  The public address system at dealership should suffice.

Note: PM2.5 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 PM2.5 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 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 in Arizona, California, Hawaii, Idaho, Nevada, New Mexico, New York, Texas, and Virginia comply with EPA and OSHA regulations for over 34 years.  Sam is Certified Safety Professional (No. 16515) certified by National Board of Certified Safety Professionals. 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.