Background: Eye injuries in the workplace can have severe consequences, including permanent vision loss. According to the CDC, over 2,000 workers sustain job-related eye injuries daily, leading to significant downtime and economic loss. Implementing proper eye protection and eyewash stations is crucial to ensure safety and compliance with OSHA regulations. This memo outlines the requirements for eye protection and eyewash stations at our dealership and why they are critical.

The Law on Eye and Face Protection: Employees working in locations where there is a risk of receiving eye injuries such as punctures, abrasions, contusions, or burns as a result of contact with flying particles, hazardous substances, projections or injurious light rays which are inherent in the work or environment, shall be safeguarded by means of face or eye protection. Suitable screens or shields isolating the hazardous exposure may be considered adequate safeguarding for nearby employees. Note:  Anyone at risk of an eye injury needs protection!

Types of Eye Protection:  Employees are often exposed to hazards such as flying particles, chemical splashes, and intense light from welding operations. These hazards make appropriate eye protection necessary,

Safety Glasses	– Basic protection against flying objects and large particles. – Must meet ANSI Z87.1 standards. – Limitations include gaps allowing potential entry of chemicals and vapors.
Safety Goggles	– Provides basic protection of safety glasses but includes 360° coverage around the eyes with no gaps. – Additional protection to eyes against chemical splashes (i.e. battery explosion) but doesn’t provide protection to the face. – Ideal for use in scenarios involving battery handling and chemical exposure.
Face Shields	– Secondary protection, used in conjunction with safety glasses or goggles. – Essential for tasks involving splashing or spraying of hazardous materials. – Shouldn’t be used alone or in place of safety glasses/goggles.
Welding Goggles/Helmets	– Required for protection during welding activities. – Goggles: Used in OXYGEN torches when cutting or welding. Shade protection of 3 to 6 (depending on plate thickness) to EYES. –  Helmets: Used in GAS TUNGSTEN torches when welding. Shade protection of 7 to 10 (depending on arc current) to EYES and FACE.

Can I Wear Normal Prescription Lenses/Frames Instead? NO. Normal prescription lenses and frames DO NOT meet safety requirements, are not strong enough and haven’t been tested to ANSI Standards. Prescription Safety Glasses that meet ANSI standards [ANSI Z87-2+] or over-the-glasses safety glasses/goggles may be worn as substitute for safety glasses/goggles.

Eyewash Stations: Cal/OSHA requires eyewash stations (EWS) where employees may encounter corrosive chemicals and specifies requirements for eyewash stations, including accessibility and functionality criteria. Battery charging, battery filling, used battery storage, and use/dispensing of corrosive chemicals or irritants are processes that require the installation of an eyewash station. In general, Cal/OSHA refers to ANSI standards as the widely accepted guideline for the proper selection, installation, operation, and maintenance of emergency eyewash station equipment.  Note:  During routine inspections, remind employees to keep the area clear.

Does Parts Dept Need an Eyewash? YES. A big box warehouse store with multiple outlets in California was cited by Cal/OSHA for failure to have eyewash stations.  The employer appealed to Occupational Safety & Health Appeals Board (COSHAB) stating that the eyewash standard does not apply as the chemicals are merely unloaded, unboxed and placed on shelves in sealed containers by employees.  COSHAB held that the employees can be exposed to leaks and spills from packages damaged in transit and when employees unpack these cases.  Employees involved in cleanup in the warehouse where there is a spill have the potential of an eye injury from corrosive and irritating chemical, hence the requirement of an eyewash in the warehouse.  See OSHA Inspection 315340471. 

Eyewash Station (EWS) Selection: 

Water Temperature	-Tepid (60-100F).
Type	– Plumbed or Wall-mounted tank.-   Plumbed units are preferred where water lines are available and are generally better.
Flow	– Should wash both eyes at no more than 8” above the spray-head.-   Eyewash tester can be used to ensure these two requirements are met (Eyewash Tester).-   Flow needs to deliver at least 0.4 gallons of water/minute for 15 minutes.-   Flow pattern should be 33-55 inches from the floor.
Capacity	– Only applicable if using tank system: minimum capacity of 6 gallons.
Operation	– Can be operated hands-free with a stay-open valve that activates in under 1 second.
Covers	– Must have a cover that protects spray heads from airborne contaminants.-   Covers must move freely enough to be pushed open by the flow of water.

Eyewash Station (EWS) Location:

1	Within 10 seconds from the hazard (~55 ft).
2	On the same plane as the hazard.
3	Have a path that is unobstructed:·        In some instances, a free-swinging door with no handles may be allowed.·        If the chemical hazard is caustic (such as battery acid) the eyewash station needs to be available directly and not through a door.
Clearance	– At least 30 inches clearance on all sides from any obstruction: ▪   48 inches from back wall or nearest permanent obstruction. ▪   27 inches of knee clearance below the unit.
Identification	–  Must be in a well-lit area and include a highly visible sign. –  A “Do NOT BLOCK” parameter is highly recommended to ensure clearance.

EWS Maintenance, Cautions, and Common Misconceptions:

Inspect and perform weekly activations. A weekly maintenance/activation log needs to be maintained and 90-day flushes for wall-mounted units also need to be performed/documented.

–   Any valves on the supply line to plumbed units need to have their handles removed

–    Water hoses, sinks, faucets, showers, and eyewash bottles DO NOT comply with Cal/OSHA standards

–    Handheld Drench units support but do not replace a dedicated EWS

–    Single step into an enclosure where EWS can be accessed is not considered to be an obstruction

o   HOWEVER – this must also meet wheelchair accessibility requirements where applicable

–    PARTS department dealing with any chemicals that can cause Corrosion, Severe Irritation, or Permanent Tissue Damage (battery acid) also need a dedicated EWS

Conclusion:

Adhering to these guidelines for eye protection and eyewash stations is essential to safeguard your employees from potential eye injuries and ensure regulatory compliance. By implementing comprehensive safety measures, we can reduce the risk of injury and promote a safe working environment.

This newsletter does not cover all necessary elements of the standard.  We merely summarize some important elements.

Ref: CAL/OSHA: Title 8 CCR 5162, 3382     FED: 29 CFR 1910.151(c) ,133 (a) (1) ANSI: Z87-1, -2+, 358.1-2014

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 across the United States comply with EPA and OSHA regulations for over 38 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.

Many dealers think that safety inspection and correction of hazards constitute an effective safety program, or that compliance with OSHA regulations is an effective means to gauge safety. Nothing could be farther from the truth. In nearly forty years of experience with dealers in the safety arena, I have found these 6 principles to be the most effective means to reduce injuries at the workplace and effectively reduce premiums.

Get Management On Board. There is an old adage: The safety train is not leaving the station unless the top management is on board.  Management on the safety committee does not adjust the guards on the grinder. They are effective in delegating, allocating resources, and monitoring the progress of the tasks set out for line managers. The liability from a mishap and the increased premiums and costs will hit the manager’s paycheck more than anyone else’s. Keeping an eye out helps reduce liability and keeps cash in the till. The General Manager and senior management should be on the invite list for all safety meetings and must review all safety reports. Actively attending meetings  keeps you informed of compliance needs and status so you can monitor and delegate as necessary. If you can’t measure it, you can’t manage it!

Investigate Accidents and Take Corrective Actions. Einstein once said that doing the same thing over and over again and expecting different results is the definition of insanity.  Facilities have back injuries and they send employees to treatment, rehab, physical therapy etc. over and over again, but never investigate to find the root cause of the injury. In short, each accident must be thoroughly investigated and corrective actions taken. Get all departments involved. Lessons learned by one should be shared with other departments, which is even better since everyone is in one corporate setting. An accident investigation form is available on our portal and should be shared with all committee members. Last and not the least, accident investigation is a statutory requirement under the CA IIPP.

Case Management. Once an accident happens, focus on case management. Open the lines of communication with the claim handler at the insurance company, follow-up with the broker, and monitor the treatment to create an effective environment and keep claims under control. Ensuring that injured persons are receiving good medical treatment and assistance from the insurance company is one of the key ways of keeping cases out of the hands of lawyers. It is a forgone conclusion that once a case reaches lawyers, wrong or right, your case management expenses will escalate.

Safety Is Everyone’s Business. Everyone should be involved. This means from the porter to the president of the corporation. Safety should be percolating through the corporate culture at all times, and not merely something you do when you meet an outside consultant and review a memo or sign on a sheet of paper in exchange for a sheet of paper. At employee safety meetings, discuss near misses, accidents, training topics, and things that can raise everyone’s safety awareness and action antennas. . Do not create prejudice against the employee involved in an accident. Rather, discuss the causes and possible ways to eliminate such accidents in the future. Monthly safety topics are emailed by us to the management team.. Safety meetings also provide a great avenue for employees to participate and voice their concerns. Employees are often the ones who are most knowledgeable on safety matters.

Behavioral Change Takes Time. A scientific study published 45 years ago studied monkeys’ behavior when seeking a reward and getting a cold shower instead, In one experiment, 5 monkeys were put in a cage with a banana on top of a ladder. When one monkey went up the ladder, a cold shower came down on all the monkeys. Then a new monkey was put in the cage (replacing an existing monkey), and when this new monkey decided to go up the ladder, the other monkeys beat him up and prevented him from going for the banana.  This sequence was repeated until all five monkeys, who had never received a cold shower, were in the cage. When a new monkey (who had never been part of the experiment), was placed in cage and decided to go up the ladder, the other monkeys beat him up even though none had ever received the cold shower. Such is the experiment and thesis of “herd mentality.” So shepherding your troops to work in a safe manner takes time, direction, and the proverbial cold shower at times!

Hiring and Background Investigation. Conducting background checks for new applicants is considered one of the most efficient ways to weed out possible 3F (fraudulent, fictitious or frivolous) claims. A phone call for an investigation to the previous employer’s HR manager usually releases the same information as you give out: Not much. Background investigations should be conducted within limits established by law. The limits vary across states. Have the hiring department manager call his/her equivalent at the applicant’s previous employer. Acquaintances, past co-workers, and friends are likely to release more information than HR representatives with canned set of answers.

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 across the United States comply with EPA and OSHA regulations for over 38 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.

Proposition 65, officially the Safe Drinking Water and Toxic Enforcement Act of 1986, was enacted as a ballot initiative in November 1986. The proposition aims to protect the state’s drinking water sources from being contaminated with chemicals known to cause cancer, birth defects or other reproductive harm, and requires businesses to inform Californians about possible exposure to such chemicals.

In 2018, the signs and notifications were updated to include language that notified the public of chemical hazards they had the potential to get exposed to. We have received a few questions regarding the signs, their size and the posting requirements. Hence this newsletter. There are no new regulations. This newsletter is simply a review of the changes that took effect in 2018.

Businesses violating Proposition 65 are subject to the following penalties.

• Civil penalties: Up to $2,500 per day for each violation 
• Injunctive Relief: A court may order the business to stop the violation 
• Attorney’s fees: Plaintiffs who win lawsuits can get reimbursement for their attorneys’ fees 

Standard insurance policies typically do not cover civil penalties. Some policies such as directors’ and officers’ policies may provide coverage for Prop 65 violations.

Bounty Hunter Clause. Proposition 65 is enforced entirely through litigation. While California’s attorney general is vested with principal enforcement, Proposition 65 also allows any individual or organization “acting in public interest” to sue for violations. Such individuals or organizations can potentially collect attorney fees and 25% of any penalties assessed. There has been an uptick in the number of cases in recent years with settlements more than $40 million in 2023, up from about $26 million in the previous two years. The case to use your $300 sign kit is even stronger!

Warning Responsibilities for Manufacturers and Retailers. Manufacturers have primary responsibility for providing Proposition 65 warnings. Manufacturers have choices: put warning labels on their products; provide notices to their distributors, importers or retail outlets that a product may cause an exposure to a listed chemical that requires a warning; and/or provide warning signs and other warning materials. Manufacturers can also enter into written agreements with retailers to modify this allocation of responsibility provided the consumer receives a clear and reasonable warning before they are exposed to any Proposition 65 chemical. Retailers must confirm that they received the notice and must use the warning signs or other materials provided by the manufacturer.

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.

We have listed information related to proposition 65 signs as they may apply to your facility. If you have any questions, please do not hesitate to contact us.

1. Label: Environmental Exposure Where to Post: All Public Entrances to Showroom. Size/Font: 72-font Language Warning: English and in any other language used on other signage at the facility.	5. Label: Vehicle Repair Facilities Where to Post: All public entrances to service department Size/Font: 32-font (enclosed in a box) Language Warning: English and in any other language used on other signage at the facility.
2. Label: Food Facilities Where to Post: Waiting areas or any other areas that sells/serves food Size/Font: 28-font 8.5”x11” Language Warning: English and in any other language used on other signage or menus provided at the facility.	6. Label: Service Stations & Gas Pumps Where to Post: Each gas pump Size/Font: 22-font (enclosed in a box) Language Warning: English and in any other language used on other signage at the facility.
3. Label: Smoking Area(s) Where to Post: Smoking area(s) Size/Font: 22-font 8.5”x11” Language Warning: English and in any other language used on other signage in the affected area.	7. Label: Occupational Exposure Where to Post: Employee break area(s) Size/Font: No font size required Language Warning: English and in any other language used on other signage at the break area.
4. Label: Vehicle Exposure Warnings Where to Post: Driver’s side window of all new and used passenger vehicles for sale Size/Font: No font size required but 12 font is recommended.	8. Label: Enclosed Parking Facilities Where to Post: All entrances to parking structures that have an enclosed ceiling Size/Font: 72-font Language Warning: English and if other permanent entrance signage is provided in any other language at the facility.
Language Warning: No foreign language requirement, but include warning labels on the vehicle in other languages if the vehicle has sale signs in other languages.	9.Label: Lead and Lead Compounds Where to Post: Parts Counter at front and back. Size/Font: 32-font Language Warning: English and in any other language used on other signage at the facility.

Disclaimer:  There is no warranty implied or direct or whatsoever as to the completeness or applicability of these signs presented here.  The dealership must use the Proposition 65 Handbook published by California New Car Dealers Association to stay compliant.  The new CNCDA Proposition 65 Handbook is available upon login in the CNCDA Publications.  Guidance on Proposition 65 from California Office of Environmental Health Hazard Assessment (OEHHA) is available at https://oehha.ca.gov/proposition-65 and must be reviewed to ensure compliance.

1.Environmental Exposure – All Public Entrances  WARNING: ENTERING THIS AREA CAN EXPOSE YOU TO BENZENE FROM AUTOMOBILE EXHAUST AND VEHICLE COMPONENT ADDITIVES. BENZENE IS KNOWN TO THE STATE OF CALIFORNIA TO CAUSE CANCER AND BIRTH DEFECTS OR OTHER REPRODUCTIVE HARM. FOR MORE INFORMATION GO TO WWW.P65WARNINGS.CA.GOV

2. Food facilities– Waiting Areas or Any Location that sells/serves food WARNING: CERTAIN FOODS AND BEVERAGES SOLD OR SERVED HERE CAN EXPOSE YOU TO CHEMICALS INCLUDING ACRYLAMIDE IN MANY FRIED OR BAKED FOODS, AND MERCURY IN FISH, WHICH IS KNOWN TO THE STATE OF CALIFORNIA TO CAUSE CANCER AND BIRTH DEFECTS OR OTHER REPRODUCTIVE HARM. FOR MORE INFORMATION GO TO WWW.P65WARNINGS.CA.GOV/RESTAURANT

3.Smoking Area  WARNING: BREATHING THE AIR IN THIS SMOKING AREA CAN EXPOSE YOU TO CHEMICALS INCLUDING TOBACCO SMOKE AND NICOTINE, WHICH ARE KNOWN TO THE STATE OF CALIFORNIA TO CAUSE CANCER AND BIRTH DEFECTS OR OTHER REPRODUCTIVE HARM. DO NOT STAY IN THIS AREA LONGER THAN NECESSARY. FOR MORE INFORMATION GO TO www.p65warnings.ca.gov/places/designated-smoking-areas

4. Vehicle Exposure Warnings – All New and Used Passenger Vehicles for Sale  WARNING: OPERATING, SERVICING, AND MAINTAINING A PASSENGER VEHICLE OR OFF-ROAD VEHICLE CAN EXPOSE YOU TO CHEMICALS INCLUDING ENGINE EXAUHST, CARBON MONOXIDE, PTHALATES, AND LEAD, WHICH ARE KNOWN TO THE STATE OF CALIFORNIA TO CAUSE CANCER AND BIRTH DEFECTS OR OTHER REPRODUCTIVE HARM. TO MINIMIZE EXPOSURE, AVOID BREATHING EXHAUST, DO NOT IDLE THE ENGINE EXCEPT AS NECESSARY, SERVICE YOUR VEHICLE IN A WELL-VENTILATED AREA AND WEAR GLOVES OR WASH YOUR HANDS FREQUENTLY WHEN SERVICING YOUR VEHICLE. FOR MORE INFORMATION GO TO www.p65warnings.ca.gov/products/passenger-vehicle

Consumer Product Warning:  The dealership must use the Proposition 65 warning signs provided by the product manufacturer for products being sold at the facility.  Signs for sales counter provided by the auto manufacturer must be used at parts counter as well.  Labeling of consumer products for sale pursuant to Prop 65 is not within the scope of this memo.  Similarly, any products requiring Prop 65 warnings being sold on the web must have warnings provided on the website.  Dealers may also choose to provide warning on their Repair Orders and customer invoices. Discuss the language with your systems provider.

5.Vehicle Repair Facilities– All Public Entrances to Service and Body Shop  WARNING: BREATHING THE AIR IN THIS AREA OR SKIN CONTACT WITH PETROLEUM PRODUCTS CAN EXPOSE YOU TO CHEMICALS INCLUDING BENZENE, MOTOR VEHICLE EXHAUST, AND CARBON MONOXIDE, WHICH ARE KNOWN TO THE STATE OF CALIFORNIA TO CAUSE CANCER AND BIRTH DEFECTS OR OTHER REPRODUCTIVE HARM. DO NOT STAY IN THIS AREA LONGER THAN NECESSARY. FOR MORE INFORMATION GO TO www.p65warnings.ca.gov/places/vehicle-repair-facilities	6. Service Stations & Gas Pumps –Each Gas Pump WARNING: BREATHING THE AIR IN THIS AREA OR SKIN CONTACT WITH PETROLEUM PRODUCTS CAN EXPOSE YOU TO CHEMICALS INCLUDING BENZENE, MOTOR VEHICLE EXHAUST AND CARBON MONOXIDE, WHICH ARE KNOWN TO THE STATE OF CALIFORNIA TO CAUSE CANCER AND BIRTH DEFECTS OR OTHER REPRODUCTIVE HARM. DO NOT STAY IN THIS AREA LONGER THAN NECESSARY. FOR MORE INFORMATION GO TO www.p65warnings.ca.gov/places/service-stations
7. Occupational Exposure – Employee Break Area(s) – No Size Requirement WARNING: ENTERING THIS AREA CAN EXPOSE YOU TO BENZENE FROM AUTOMOBILE EXHAUST AND VEHICLE COMPONENT ADDITIVES. BENZENE IS KNOWN TO THE STATE OF CALIFORNIA TO CAUSE CANCER AND BIRTH DEFECTS OR OTHER REPRODUCTIVE HARM. FOR MORE INFORMATION GO TO WWW.P65WARNINGS.CA.GOV	8. Enclosed Parking Facilities – All Entrances to Parking Structures that have a Ceiling WARNING: BREATHING THE AIR IN THIS PARKING GARAGE CAN EXPOSE YOU TO CHEMICALS INCLUDING CARBON MONOXIDE AND GASOLINE OR DIESEL EXHAUST, WHICH ARE KNOWN TO THE STATE OF CALIFORNIA TO CAUSE CANCER AND BIRTH DEFECTS OR OTHER REPRODUCTIVE HARM. DO NOT STAY IN THIS AREA LONGER THAN NECESSARY. FOR MORE INFORMATION GO TO www.p65warnings.ca.gov/places/enclosed-parking-facilities
9. Lead and Lead Compounds – Parts Counter at front and back. WARNING: Lead-acid batteries, battery posts, terminals, and related accessories can expose you to chemicals including lead and lead compounds, which are known to the State of California to cause cancer and birth defects or other reproductive harm. FOR MORE INFORMATION GO TO WWW.P65WARNINGS.CA.GOV

Disclaimer:  There is no warranty implied or direct or whatsoever as to the completeness or applicability of these signs presented here.  The dealership must use the Proposition 65 Handbook published by California New Car Dealers Association to stay compliant.  The new CNCDA Proposition 65 Handbook is available upon login in the CNCDA Publications section of website, www.cncda.org. Guidance on Proposition 65 from California Office of Environmental Health Hazard Assessment (OEHHA) is available at https://oehha.ca.gov/proposition-65 and must be reviewed to ensure compliance.

On July 23, 2024, the Occupational Safety and Health Standards Board approved the “Heat Illness Prevention in Indoor Places of Employment” (California Code of Regulations, Title 8, Section 3396). This standard establishes safety measures to prevent heat illness.

Where does Cal/OSHA’s Indoor Heat Illness Prevention (IHIPP) Statute apply? All indoor work areas where the temperature or heat index equals or exceeds 87 degrees Fahrenheit (F) when employees are present.  In workplaces where employees wear clothing (possible PPE) that restricts heat removal, the statute applies 82 degrees F. “Indoor” refers to a space that is under a ceiling or overhead covering and is enclosed along its entire perimeter by walls, doors, windows, dividers, or other physical barriers that restrict airflow. In automobile dealerships, most likely areas for this law to apply will be closed shops, parts warehouse etc..  Air-conditioned office and showroom space would be exempt. Temperature & Heat Index:  Temperature can be measured by a thermometer.  Heat Index is calculated based upon temperature and humidity.  In high humidity, sweat does not evaporate creating a dangerous condition for workers.  Heat index calculations require an instrument to read the humidity.  The humidity and the temperature reading are placed on the US Govt. chart on page 2 of this Newsletter and the heat index is calculated.  For example, if the temperature is 84F and the humidity is 70%, the Heat Index is 90 and hence the IHIPP kicks in.  This is above the action level of 87F as listed in para above, employer is now required to document actions as listed below. EMPLOYER ACTIONSMEASURE & KEEP RECORD of the greater of measured temperature and the calculated heat index as temperatures begin rising toward 80°F. Use the log attached. PROVIDE BREAK ROOM/COOL DOWN AREA:  The break room AC must operate below 82°F.  Cool, potable water is required when the temperature or heat index reaches 87°F indoors. TRAIN all supervisory and non- supervisory employees on Heat Illness Prevention.  Find the training memo on the Elearn portal. CA Title 8 CCR 3395 (h)INCLUDE WRITTEN PROCEDURES for Indoor Heat Illness Prevention in the Heat Illness Prevention Plan (HIPP), Injury and Illness Prevention Plan (IIPP), or maintain separately.  The HIPP is available on the CSI Elearn platform under EHS documents.

Note: Cal/OSHA’s outdoor heat illness prevention program at Title 8, Section 3395 has been in effect since 2015.

HEAT INDEX. Heat index is a measure of heat stress that combines relative humidity with air temperature to capture what the temperature feels like to the human body. When the body gets too hot, it begins to sweat to cool itself off.  If the sweat can’t evaporate, the body can’t regulate its temperature. High humidity limits sweat evaporation and prevents effective cooling of the body.

Maintain the Log

1.  Measure the temperature and humidity. Calculate the heat index. RECORD WHICHEVER IS GREATER on the log attached (when > 82°F).Use a shop thermometer to measure temperature in conjunction with an instrument called hygrometer to measure humidity to get the heat index. Alternately, buy an instrument that includes both temperature and humidity (ex: https://buythermopro.com/product/tp53/).

2.   Go to the National Oceanic and Atmospheric Administration (NOAA) website to calculate the heat index (https://www.wpc.ncep.noaa.gov/html/heatindex.shtml) or use the table below.

For example, the indoor thermometer reads 88°F and the hygrometer reads 75%. This means the heat index is 103 (from the NOAA heat index website or the table below). Simply put, it feels hotter due to the high humidity and this, the heat index, is the relevant measure to record.  Because 103 > 88°F, 103 should be recorded in the attached log. NOTE: Maximum temperatures are typically between 1PM and 5PM.

COMPARISON of INDOOR and OUTDOOR HEAT ILLNESS PREVENTION STANDARDS

Requirement	Outdoor Heat (T8CCR 3395)	Indoor Heat (T8CCR 3396)
Scope and Application	Applies to outdoor workplaces	·  Applies to indoor workplaces when the indoor temperature is greater than 82°F.·  The heat index should be used to measure this temperature as it incorporates relative humidity to show how hot it feels to the human body.
Provide Clean Drinking Water	· Provide access to potable water that is fresh, suitably cool, and free of charge. Located as close as possible to work areas.	· Provide access to potable water that is fresh, suitably cool, and free of charge.·     Located as close as possible to work areas and cool-down areas.
Access to Shade and Cool-Down Areas	·For outdoor workplaces, shade must be present when temperatures are greater than 80°F. When temperatures are less than 80°F, shade must be available upon request.·     For indoor workplaces, provide access to at least one cool-down area, such as a break room, which must be kept at a temperature below 82°F using AC or other cooling methods.·     Shade and cool-down areas must be : Blocked from direct sunlight . Large enough to accommodate the number of workers on rest breaks so they can sit comfortably without touching each other. Close as possible to the work areas. For indoor workplaces, the cool-down areas must be kept at less than 82°F and shielded from other high-radiant heat sources.
Cool-Down Rest Periods	· Encourage workers to take preventative cool-down rest periods.·     Allow workers who ask for a cool-down rest period to take one.·     Monitor workers taking such rest periods for symptoms of heat-related illness.
High-Heat Procedures	·  Have and implement procedures to deal with heat when the temperature equals or exceeds 95°F.·    Procedures must include:·    Observing and communicating effectively with workers.·    Reminding workers to drink water and take cool-down rest breaks.	· Not applicable to Indoor Workplaces.
Assessment and Control Measures	· Not applicable to Outdoor Workplaces.	· As temperatures rise above 80F, measure indoor temperature and humidity. Calculate the heat index. If the temperature or heat index is at or above 87F, record whichever is greater of the temperature and heat index on the log attached.  Statute requirements kick-in.·     (For workers in high-radiant-heat areas, or wear clothing that restricts heat removal, the temperature or heat index must be recorded when either reaches 82°F).·     Implement control measures to keep workers safe. Feasible engineering controls must be implemented first.
Monitoring the Weather	Monitor outdoor temperature and ensure that once the temperature exceeds 80°F, shade structures will be opened and made available to the workers. When it is at least 95°F, implement high-heat procedures. Supervisors can use the OSHA-NIOSH heat index tool to quickly check heat index (outdoor).Train supervisors on how to check weather reports and how to respond to weather advisories.	· For indoor workplaces that are affected by outdoor temperatures, train supervisors on how to check weather reports and how to respond to hot weather advisories.·     Train supervisors on how to measure temperature and humidity and calculate the heat index.
Emergency Response Procedures	· Provide first aid or emergency response to any workers showing heat illness signs or symptoms, including contacting emergency medical services.
Acclimatization	·  Closely observe new workers and newly assigned workers working in hot areas during a 14-day acclimatization period, as well as all workers working during a heat wave.
Training	·   Employers must provide training to all employees—supervisory and non-supervisory.
Heat Illness Prevention Plan	·  Establish, implement, and maintain an effective written Outdoor Heat Illness Prevention Plan that includes procedures for providing drinking water, shade, preventative rest periods, close observation during acclimatization, high-heat procedures, training, prompt emergency response.	·  Establish, implement, and maintain an effective written Indoor Heat Illness Prevention Plan that includes procedures for providing drinking water, cool-down areas, preventative rest periods, close observation during acclimatization, assessment and measurement of heat, training, prompt emergency response, and feasible control measures.

TIPS TO BEAT THE HEAT

Ice Machines	Get an ice machine for the employees in the employee lunchroom.
AC Break Rooms	Ensure the air conditioning in the employee break room is running full tilt. Go and test it with a thermometer.
Cool Drinking Water	Ensure cool drinkable water is available. Augment with electrolyte rich drinks like Gatorade upon request.
Swamp Cooler + Fans	Provide swamp coolers in the shop area. Ensure all employees get a blast. Humid zones may need forced draft fans…see Big Ass Fans.
Neck Gaiters	Provide neck gaiters to each employee at no cost. Cost is between $5-10 at Amazon. Show them how to use it it’s easy. Golfers, construction and highway workers have been using it for a while.
Ice Vests	Provide an option for outdoor employees to wear an ice vest. The vest is thrown in the freezer for a few hours then one round the waist like a bulletproof vest. Cost $49.99. Your staff walking outside in 100-degree heat will love you.
Employee Training	Provide training to all employees regarding the signs and symptoms of, causes, first aid, and emergency responses to various heat illnesses.
Management Guidance	Management and all employees must understand the signs and symptoms of, and first aid and emergency responses to heat illness. OSHA provides this guidance for employers knowing that an MD is generally not available on site to diagnose, treat, or respond to heat related illness.  https://www.cdc.gov/niosh/topics/heatstress/heatapp.html
Posters	Post this poster in employee breakrooms and near the receptionist.
Thermometer	Place a big thermometer (patio thermometer size) in the indoor area for all to see.

References

California Code of Regulations, Title 8, Section 3396

California Code of Regulations, Title 8, Section 3395

https://www.dir.ca.gov/dosh/HeatIllnessInfo.html

https://www.dir.ca.gov/dosh/heat-illness/indoor-faq.html

https://www.weather.gov/ama/heatindex
https://www.cdc.gov/niosh/topics/heatstress/heatapp.html for the OSHA-NIOSH Heat Safety tool for mobile phones to estimate “Feels Like” temperature

In this newsletter, we discuss:– 1.OSHA Citations and Appeals.            2.Defense: Elements of Independent Employee Act Defense for employers to seek relief from citations and penalties (1977 Mercury Case).            3.Elements of California Illness & Injury Prevention Program (IIPP) California Code of Regulations.

Case. 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. The employee had partially amputated a finger while diagnosing the engine on an automobile. This happened to an auto dealer in Los Angeles. What may the employer do?

File an appeal to the California OSHA Board (“OSHAB”) using the OSHAB Appeal Form within 15 working days from receipt of a citation to avoid automatic dismissal. If an appeal is filed after this time, the appeals board may accept it only upon showing good cause for the late filing. “Good cause” generally means circumstances beyond one’s control that could not have been reasonably anticipated. The appeal form lists multiple grounds and defenses.

Independent Employee Act Defense. In their defense, the employer in the case above pled that the act 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).  This case is 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 violations by employees go undocumented. A write-up on a safety violation places the employee and coworkers on notice about the safety policy and acceptable safety procedures at the facility.  Repeat violators can expect management to escalate enforcement.
Enforcement and documentation improve your safety record and defends you, should a “serious”  injury occur on your premises.

In order to prevail on this affirmative defense, which must be pleaded on the appeal to the OSHAB (https://www.dir.ca.gov/oshab/oshab.html) immediately following the citation, an employer in California must prove and prevail on all five of the following elements:

1.  Employee was Trained and Experienced 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. OSHAB accepted the employers’ claim on this issue. Interestingly, OSHAB looked at all the safety training completed by the technician. CSI’s advice is to keep your monthly safety training accessible to all employees and keep records of all training.

Employer Has a Well Devised Safety Program. Employer must prove that a well-devised safety program is in effect, and that it includes employee training for their job assignment. The employer presented its IIPP, and the training based on the service manual from the automobile manufacturer relevant to the service operations being done when the injury occurred. OSHAB also accepted this element of the defense. Elements of the IIPP are:

ResponsibilityComplianceCommunicationHazard Assessment

Accident/Exposure InvestigationHazard CorrectionTraining and InstructionRecordkeeping

2.  Policy of Sanctions Against Employees Violating Safety Program. Employer must have a written policy of sanctions against employees violating safety rules or involved in unsafe acts. The employer stated that one had never been required as injuries were virtually non-existent, and one was never deemed necessary. The employer lost on this ground as no policy existed.

3.  Employer Effectively Enforces the Safety Program. Employer must implement the written disciplinary policy. 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, OSHAB held that the enforcement element of the safety program had “no teeth” and that safe practices had not been enforced. The employer lost on this ground as no earlier enforcement or disciplinary action had been documented, and the citation stood.

4.   Employee Caused the Safety Infraction Which He or She Knew was Contra to Employer’s Safety Requirement. 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; 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 for servicing automobiles and that technicians reference repeatedly outlined safety procedures including relevant safety issues.

Successful Safety Enforcement Examples

• Employee Drops an Automobile Off a Hoist. Employer terminated the employee for damage caused to the truck. We argued that a truck falling off a hoist is a seriously unsafe act and hence employers’ safety enforcement is viable and operational.
• Employee Gets a DUI. Employee was terminated following a DUI. Employer pled that requiring employees to be free of a DUI violation was an enforcement mechanism to enhance safety.
• Employees Not Wearing Safety Glasses. Employer was enforcing safety glasses policy by writing-up employees who were working on autos in the shop policy without eye protection.

In the case at hand, where the employee amputated part of his finger, the employer lost the appeal for not having a policy and not enforcing sanctions against employees behaving in an unsafe manner. Merely having a written policy without a Write-Up is not sufficient. A written IIPP where the facility is inspected on a periodic basis and hazards corrected is not enough. Furthermore, the policies should be enforced consistently and without discrimination. A safety counseling form is available on our eLearn platform. Since disciplining employees is a labor law issue, the advice of qualified counsel must be obtained.

Other States. The case law cited above is specific to California and does not carry weight in federal jurisdiction or other states. Employers elsewhere may ask the tribunal to consider the Mercury case cited above as persuasive.

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 38 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).

Your comments/questions are always welcome. Please send them to sam@cellyservices.com.

Resources
CSI newsletters may be accessed at www.epaoshablog.com[OSHAB%20Appeal%20Form]OSHAB Appeal Form at https://www.dir.ca.gov/oshab/appealform.pdf[OSHAB] OSHAB at https://www.dir.ca.gov/oshab/oshab.html
IIPP California Code of Regulations at www.dir.ca.gov/title8/3203.html
Cited Mercury Case at https://www.dir.ca.gov/oshab/Decisions/Precedential/77-1133-Mercury-Service-DAR.pdf

The black box is made available to you to retain EPA and OSHA related paperwork so that is readily available in the event of a regulatory agency audit. Since the inspector arrives with no notice, having EPA/OSHA related records readily accessible can make the audit go smoothly and quickly. Additional benefits keeping the paperwork organized and handy are:

• Tangible evidence of the organization being committed to EHS. Inspectors are usually accommodating for facilities with immaculate recordkeeping.
• Faster audits when CSI consultants visit to audit your EHS compliance.
• Ease in calculating and paying taxes on hazardous waste generated.
• Calculate reimbursement for used oil from haulers (if any).
• Calculate and file used oil claim (only state of CA).
• Dealerships have turnover. Box provides incoming manager with records.

EPA DOCUMENTATION (Yellow folders)

EPA requires hazardous waste disposal paperwork to be maintained for all hazardous wastes. These should be filed in the yellow folders as marked. Yellow folders have instructions related to the specific disposal paperwork requirements for each of the following streams:

• Used Oil
• Used Oil Filters
• Used Antifreeze
• Cleaning Solvents (parts washer)
• Used Batteries
• Clarifier Sludge
• Used Tires
• Universal Wastes

Other environmental related paperwork is as follows:

• Storage Tanks
• Fees and Permits
• Air Pollution
• Hazardous Waste Management & Manifest Procedures
• DOT Shipping & Receiving (Certificates)
• California Environmental Reporting System

NOTE: All hazardous waste disposal documents must be retained in files for 3 years. Certain wastes need a Uniform Hazardous Waste Manifest for disposal. You must follow proper procedures for completion of manifests. The Business Office maintains the paperwork only from an accounts payable standpoint–dollars to pay or dollars to receive.

Accurate and complete disposal paperwork is to be maintained by the Service Manager or his/her designee, and ensure:

• All wastes are being disposed of via authorized haulers; and
• Paperwork as required by the EPA is being maintained.

Tank File Must Retain:

1. Tank Inspection Logs for the last three years.
2. Spill Prevention Containment & Countermeasures Plan (SPCC).
3. Waste tank assessments from a Professional Engineer.

Note: SPCC and tank assessment reports must be renewed every 5 years.

Examples of Fees & Permits File Retained in file are:

1. Air compressors
2. Hoists (City of LA only)
3. Elevators (Human & freight)
4. Tire Program ID (TPID) number
5. EPA ID number
6. Environmental Verification Questionnaire (EVQ)

Note: EPA ID number and the TPID number should be posted on the notice board.

CERS File:  Copy of annual submission of CERS.

OSHA DOCUMENTATION (Red folders)

OSHA requires each facility to maintain documentation of all compliance activities. Organize and Retain documents in the following folders for ease of retrieval.

• Safety Inspections
• Safety Committee Meeting Minutes
• Employee Safety Training Records
• Accident Investigation
• Safety Counseling
• Miscellaneous
• Safety Topics (monthly)
• Safety Data Sheets (SDS)
• Newsletters
• Hazard Assessments

Note:  Safety Inspections and SDS for the facility may be retained on the web portal. Accident investigation and safety counseling documents for the facility/corporation may be retained by HR.

“Miscellaneous” is the mother of all folders. If you get something in the mail or email and need to discuss with CSI rep, save it for the next visit. If the matter cannot wait, email a copy to your rep. SDS for newly added chemicals can be saved in the file or emailed to Celly Services, Inc. for posting on the portal.

QUESTIONS:  If you need to have any questions regarding the Black Box or any other EHS matters, contact sam@cellyervices.com for guidance.

Black Box: In science, computing, and engineering, a black box is a device, system, or object which produces useful information without revealing any information about its internal workings.

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

As part of local, state and federal regulations, businesses are required to be prepared for prompt evacuation in the event of a fire, earthquake or flood.  Spills of hazardous materials, when a threat to human life, may also require evacuation of the facility.  The objective of this memo is to assist the dealership in conducting an evacuation drill as part of emergency preparedness.

A good evacuation will require the coordination of the Departmental Managers and cooperation of each employee at the facility.  To complete safe and prompt evacuation drills, information is attached as follows:

1. Evacuation Drill Preparedness for Managers:  The managers must read and understand every step involved in the drill as listed in this memo.  When a real evacuation is to be done, there will not be much time to think.  So managers must understand their responsibility and understand that the success of the drill depends on their execution.
2. Memo & Evacuation Map (on Notice Board) to Employees Prior to the Drill:  Employees must receive this memo in advance as part of drill preparedness as well.  Request your employees to read the memo and understand the location of the evacuation point on the map posted on the Notice Board.  As most dealerships are laid out simply, the route to the evacuation point is straightforward.  Verbally tell the employees if the communication will be verbal or through a bullhorn.  Note: the phone system or the PA system may be out in the event of an electrical outage. Note: If you need a copy of your evacuation map, please email support@cellyservices.com.
3. Drill Record/Comment Form:  Document the drill and attendees.  Make the drill a part of your learning process.  By giving the comment form to employees, you will empower them to have a say in future (or actual) evacuations.  Secondly, comments by employees, which may be incorporated in future drills, can improve your drills. 

Visitors at the facility may also need assistance to the evacuation assembly area.  A senior Manger must go to the customer lounge, inform the customers that this is an evacuation drill and lead them outside.  When they are at a point that is sufficiently away from the building, where no building glass or objects in the event of a real earthquake/fire may hurt them, you may lead them back.  Customers will appreciate you thinking of their safety rather than thinking it’s a nuisance. 

The drill should require an account of all employees at the evacuation assembly area.  A log should be available to account for employees.  An employee can return to his/her job location only after a head count is complete and approval for return has been granted.  If possible, provide a soda and a cookie to each employee signing the logbook.  This may sound cute but works like a charm, especially to those ruffled feathers!!!  Encl.: Evacuation Drill Preparedness for Managers, Evacuation Memo for Employees, Fire Evacuation Drill Record/Comment Form, & Emergency Action Plan & Evacuation Procedures

You walk into the shop early in the morning and see a mega oil spill. Material loss and cleanup can cost a big bundle, not to mention the shop shut down time while the cleanup crew vacuums the shop floor, slurries the lot and undertakes 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 the 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. This resulted in the oil tank emptying out, 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 case where oil was spilled to the storm sewer, extensive regulatory enforcement activity followed. Clean up of the entire lot and service department had to be undertaken as well, along with the clean-up performed on the entire storm sewer system impacted by the oil spill. The price tag in each of the cases was tens of thousands of dollars! The SPCC Plan prepared by the dealership was also summoned by the federal EPA and the dealership underwent rigorous questioning.

CIVIL: Preventive Measures Involve Building Physical Barriers to Prevent & Catch Oil Spills

1. Build a concrete wall: The wall around the tank will contain an accidental leak from failure of fittings or a leak from the tanks. Many times, tanks are double walled: the interstitial space must be monitored for leaks and an inspection log kept. When tanks are in a tank room, a berm at the entrance can be built to contain a spill from a leaking fitting or a burst hose. A dealer in the Bay area insists on the berm at each of his 16 stores!
2. Bollards: Tanks are generally kept in tank rooms specifically built for the purpose. Auto manufacturers have come up with specialized lube oil, the storage of which is now in tanks in the shop area and exposed to traffic. Install steel bollards to protect the tanks from accidental impact.
3. Secondary Containment: Generally secondary containment for all containers greater than 55 gallons is necessary. Appropriate containment can be purchased and placed for effective containment.

MECHANICAL: Float Devices & Overflow Alarms

1. Mechanical Gauge: Each of the tanks should be provided with a gauge indicating the level of fluid in the tanks. A matrix provided by the tank and gauge manufacturer and placed on the tank can translate the level of oil in the tank to actual gallons in the tank. Once tank storage is determined and tank capacity is known, the delivery company can determine the gallons to be delivered. Dip sticks may not be always provided and may be difficult to reach for large storage tanks, so this is an effective way to prevent spills. 
2. Tank Level Monitors: Electronic tank level monitors track new product supply or used oil levels, and wirelessly transmit tank level information to the Managers desktop. The desktop allows for easy viewing and management of tank levels without labor costs. Data related to tank levels may be automatically emailed to oil distributors and used oil recyclers for action. Greater inventory management allows for efficient expensing and accounting as well.
3. Overflow Alarms: The used oil and used coolant tanks may have remote filling and as such are not visible to the technician unloading used oil through a diaphragm pump. Without an overflow alarm, tanks at remote locations can continue to overflow and create spills. Overflow alarm panels at the fill station should be equipped with a visual and audible alarm. The alarm should also shut off the compressed air to the pump and hence prevent any transfer to the tank once the tank reaches capacity. Alarms should be checked for proper operability on an annual basis.

ELECTRICAL DEVICES: A $500 VALVE/TIMER DEVICE ON YOUR NEW OIL/AUTOMATIC TRANSMISSION FLUID (ATF) TANKS

The remedial measures to avoid such disasters are straightforward, and easy and inexpensive to install compared to the potential for an expensive and troublesome spill.

1. A $500 Solenoid Valve with Timer Will Shut Off Air to Dispensers during Non-Shop Hours: 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 the 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 Down 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. However, it is prone to human error. 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 valves 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 must 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 down at the end of the work shift. However, there is enough air in the air-storage tank to empty the oil tank of hundreds of gallons when a leak occurs downstream in the hoses, dispenser, or the metering pump, even after the electrical supply to the compressor motor has been shut off. 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 daily. This procedure faces the same limitations discussed in item # 2 above.

NOTE: The devices and procedures discussed above may not be required by law or local regulators. However, they are good engineering practices that, when implemented, minimize the possibility of a leak or a spill from hazmat located at your facility, thereby minimizing disruption to operations. Clean up expenses & regulatory burden is also reduced.

Recent EPA Enforcement: https://www.epa.gov/newsreleases/epa-settles-two-watsonville-calif-companies-claims-chemical-safety-violations

DISCLAIMER: The contents of this newsletter are for informational purposes only and are not to be considered 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 36 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. We welcome your comments/questions. Please send them to sam@cellyservices.com. 

Background: In 1993, CalEPA created the Certified Unified Program Agency (CUPA) which is a local agency certified by CalEPA to implement and enforce six state hazardous waste and hazardous materials regulatory management programs. CUPA inspectors enforce hazardous waste, storage tank, and emergency preparedness regulations amongst others. In our observation, the enforcement level varies from county to county and even inspector to inspector, however, the level of enforcement is up significantly with many paying penalties for violations.

We discuss some recent CUPA violations issued via a Notice of Violations (NOV) in this Newsletter. Needless to say, any NOV issued must be abated within the stipulated time and the county inspector informed in writing. As part of preparation for the annual CUPA inspector visit, we have noted some common CUPA violations in this Newsletter. We will discuss this Newsletter during our visit to clients as well. Dealership management must go through the listed items below and undertake remedial steps. 

I. 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 (state portal) and update annually. This reporting is similar to the federal Tier II reporting requirements but more expansive. CERS includes items as follows:

1. Inventory, facility maps, and the emergency contact list with cell number to respond to a hazmat emergency including after hours. Preferably the contacts must be aware of hazmat and its location on the lot. Contact living close is preferrable as well.
2. Maintain copy of CERS plan and ensure all managers have read the plan and know it’s location. 
3. Train employees on emergency response plan (CERS report) and seek written acknowledgement from employees. CERS requires extensive training to the entire shop staff and management team. In Section VII and VIII below, we provide a framework of training requirements. Please contact your consultant for detailed training requirements for CERS.
4. Train employees on spill response and provide spill kits. Spill kits (multiple) must be located in the shop and in the bulk oil tank storage area, preferably yellow drums that are easily recognizable. Spill kits consist of absorbent snakes (help build a dike), absorbent pads and good old absorbent powder. Note that time is of the essence when combating oil spills. Label them in bold letters “Spill Kit” and if the drum is not yellow, you may take a yellow can of paint and paint the lid yellow.
5. If the bulk oil tanks are in shop area or in drive area where they can be impacted by shop traffic; install bollards to protect them.

II. Hazardous Material (and waste) Storage Regulations

1. Ensure ALL containers have lids and are labeled with their content. Ensure lids are secured on waste drums and/or fill ports on tanks are closed when not in active use.
2. Conduct WEEKLY inspections of hazardous waste storage areas. Keep logs for 3 years. Daily inspection maybe necessary if the facility is subject to a SPCC plan (see page 2).
3. Ensure drums that previously stored hazardous materials/waste are labeled “empty as of mm/dd/yyyy.” Once container is reused for hazardous waste storage, remove empty label/sign.
4. Brake fluid has different characteristics than used motor oil and as such should be disposed as a separate hazardous waste stream. Similarly, contaminated gasoline must be stored and disposed separately.
5. Ensure waste is not stored for more than 90 days. Observe the “Accumulation Start Date” on waste label to ensure the 90-day storage clock is not exceeded. Contact waste hauler to dispose of waste if 90-day window is closing. Shop managers must keep the waste hauler and their rep’s phone on their cell.
6. Ensure all hazardous material containers (oil quarts, coolant containers, etc.) are completely empty (drip-dry) prior to disposing in trash. Same for aerosol cans, i.e., must be completely empty.
7. Ensure all waste caddies are labeled for their content and disposition/disposal. – i.e., Waste Oil – “Empty Daily” or “Waste Coolant – Empty Daily.”
8. Ensure all waste containers 55 gallons or greater have secondary containment. Also, ensure containment are kept clean.

III. Waste Tank Structural Assessment (Title 22)

Waste tanks need a structural assessment conducted by a registered Professional Engineer (PE) every 5 years. Facilities generating less than 1000 kg/month of waste are exempt from this requirement. Keep tank report accessible.

IV. Spill Prevention Control & Countermeasure Plan

Facilities with petroleum products storage exceeding 1,320 gallons must have a current Spill Prevention Control & Countermeasure Plan (SPCC). Conduct DAILY inspections of the aboveground storage tanks. Maintain log(s) for a minimum of three years for recordkeeping. Plan must be renewed every 5 years.

V. Waste Disposal Paperwork (and Manifest)

Maintain all waste manifests for hazardous waste pick-up docs on site for 3 years. When a hazardous waste manifest (the 6 page doc) is generated, copy the manifest and mail the copy to DTSC Generator Manifests, Department of Toxic Substances Control, P.O. Box 400, Sacramento, CA 95812. Once a signed copy is received from the TSDF, match the signed copy to the original manifest copy. https://dtsc.ca.gov/hazardous-waste-manifest-information. The 6 page manifest is expressly required for waste streams such as contaminated gasoline and waste brake fluid. Used oil and used coolant are exempt from the 6 page manifest process.

VI. Universal Waste Considerations

Common Universal Waste: Includes any electronic device that is a hazardous waste, such as computers, televisions, VCRs, stereos, copiers, and fax machines. Other waste such as household type batteries, electric lamps, non-empty aerosol cans, cathode ray tubes, and mercury switches are considered universal waste.



Federal Exemptions: In 2011, US EPA created an exemption for businesses that generate a combination of hazardous waste (Resource Conservation and Recovery Act [RCRA] wastes) and universal waste in an amount of less than 100 kg/month. California has enacted regulations that require all facilities, without any exemptions, to recycle all universal waste.

VII. Key Personnel

Service Manager: The Service Manager and other managers must be on top of environmental issues that arise in CUPA inspections. It is critical to 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? Where is it kept for easy access?
• Facility Inspection: Service Manager or another department manager must accompany the inspector on the annual walk-through. Notice of Violations (NOV), if any are issued, must corrected in the established time-frame.
• Who is responsible for completing the tasks noted on violations? The penalties occur when the NOV goes unanswered. Some dealerships change managers often and new managers fail to address the pending violations in a timely manner. Establish a process that requires the General Manager to be copied on any violations that are handed to the dealership. GM should monitor and ensure the correction of violations. CSI must be copied on the violation as well.

VIII. Employee Training Frequency and Recordkeeping Training Must Be:

1. Provided initially for new employees as soon as possible following the date of hire. New employees should not work in an unsupervised position that involves hazardous materials handling and/or hazardous waste management without proper training.
2. Provided within six months from the date of hire for new employees at a large quantity generator.
3. Ongoing and provided at least annually.
4. Amended prior to a change in process or work assignment.
5. Given upon modification to the Emergency Response/Contingency Plan.

DISCLAIMER: The contents of this newsletter are for informational purposes only and are not to be considered 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 36 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. We welcome your comments/questions. Please send them to sam@cellyservices.com. 

1. Fall Protection: Falls, primarily from ladders and roofs, accounted for 370 fatalities in 2021. Any time a worker is at a height of 4 feet or more (in California the requirement is 30 inches or more), the worker is at risk and needs to be protected.

2. Hazard Communication: 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. Ladders: Limit ladder use to ladder safety trained and experienced staff only. Secure ladders with a chain to prevent usage by untrained staff.

4. Respiratory Protection: Body shop employees need specific training both on written policies and on practices involving the use of respirators during auto refinishing operations. Training for respiratory protection, fit testing, user seal check, and respiratory cleaning procedures is mandatory, as is the OSHA Respirator Medical Evaluation Questionnaire. When an employee wears a respirator, information on proper usage, including limitations, must be provided even when it is not required under the regulation.

5. Scaffolding: Primarily applicable to the construction industry.

6. Lockout/Tagout: Specific procedures and practices safeguard employees from the unexpected energization or startup of machinery and equipment. A written program and annual employee training is mandatory. 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 for each piece of equipment/machinery.

7. Powered Industrial Trucks (Forklifts): The high number of fatalities associated with forklifts and high number of violations associated with powered industrial trucks 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 each operator every three years is also mandatory.

8. Fall Protection Training Requirements: Dealerships must protect employees working on 2^nd floor of the parts department, especially while loading/unloading parts at the mezzanine edge.

9. Eye & Face Protection: Reinforce your Person Protective Equipment (PPE) policy and ensure all employees wear eye and face protection as necessary.

10. Machine Guarding: Moving machine parts have 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 machine operation 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.

COMPLETE OSHA TRAINING ON THE WEB AT YOUR OWN PERILOSHA has stated repeatedly and consistently in its training-related interpretation letters that online or computer-based training is acceptable as part of an overall training program that includes hands-on, site-specific information and work practices where it is needed to meet workplace safety goals.  Many online courses may not be legitimate. In many instances, the training company clearly states that the training does not meet any local, state, or federal standards. The awakening happens when OSHA audits the workplace and finds the employer lacking in hands-on, site-specific information and work practices.

We discuss the hand-on element of some of the hands-on training requirements as follows:

1. Fall Protection: Employees must have hands-on training in using fall protection equipment such as harnesses. Also, the lanyards which automatically limit free fall distance are to be marked according to the actual edge. In summary, the training is hands-on and site-specific.

2. Forklift Training: Many employers are under the false assumption that the online training is sufficient for employees operating forklifts. Allowing a person who has completed only online training to operate a forklift is akin to driving an automobile after passing a written test. We all know that hands-on proficiency is to be shown before an actual driver’s license is granted. Some trainers will state in fine print that hands-on training is necessary, and some do not mention it all. An experienced trainer must provide training on the operation of the actual forklift and evaluate the employee on proficiency prior to providing an operator certification.

3. Lockout/Tagout (LOTO): A written program and employee training is mandatory along with the hands-on portion of lockout. An effective LOTO program requires that the employee must be able to show to the certifier that he possesses the tools and has procedural knowledge to effectively lockout and tagout the equipment, e.g., a faulty hoist.

4. Respiratory Protection: Each employee must be fit tested for the specific respirator to be worn by the employee. Respirator selection must be done by the employer based on the hazard to which the employee is/will be exposed. The SDS for the chemical being used must be utilized in the selection process. The employee should be given training on the respirator that must be worn during the work shift.

OSHA PENALTIES ARE UP AGAIN*

Type of Violation	Penalty
Other-Than-Serious	$0 to $15, 625 per violation
Serious	$1,116 to $15, 625 violation
Failure to Abate	$15,625 per day beyond abatement date
Posting Requirements	$0 to $15,625 per violation
Willful or Repeated	$11,162 to $145,027 per violation

*Note: The penalties are automatically adjusted for inflation on an annual basis and based on the number of employees.

DISCLAIMER: The contents of this newsletter are for informational purposes only and are not to be considered 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. We welcome your comments/questions. Please send them to sam@cellyservices.com.