Celly Services Inc.


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

Heat Stress

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

California Used Oil Recycling Program

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

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

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

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

Q: What if the oil looks contaminated?

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

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

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

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

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

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

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

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

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

Q: What paperwork needs to be posted?

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

Q: Do I need to pay the public?

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

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

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

Q: What if my oil gets contaminated?

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

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

A: Contact your bulk oil supplier for the number.

Certified Collection Center Operators Guide



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


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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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


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

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

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

Top 10 OSHA Citations of 2018

The Department of Labor’s Occupational Safety and Health Administration has released a list of the 10 most frequently cited safety and health violations for the fiscal year of 2018; compiled from thousands of inspections of workplaces by federal OSHA staff. For the fiscal year (FY) of 2017, Federal OSHA and States with their own OSHA plans completed close to 76,000 workplace safety inspections.

The top 10 violations accounted for an estimated total of 32,266 violations, based on preliminary data for FY 2018 as noted by OSHA’s Deputy Director of the Directorate of Enforcement Programs. One remarkable thing about the list is that it rarely changes. Year after year, thousands of the same on-the-job hazards are cited, any one of which could result in a fatality or severe injury.

In 2016, 5,190 workers were killed on the job (3.6 per 100,000 full-time equivalent workers) — on average, more than 99 a week or more than 14 deaths every day bls.gov. This is despite the fact that by law, employers are responsible for providing safe and healthful workplaces for their workers. If all employers simply corrected the top 10 hazards, we are confident the number of deaths, amputations, and hospitalizations would drastically decline. Consider this list a starting point for workplace safety:

  1. Fall Protection – 7,720 violations: Falls, primarily from ladders and roofs, accounted for 384 fatalities in 2016. Any time a worker is at a height of 4 feet or more (30 inches or more in CA), the worker is at risk and needs to be protected.
  2. Hazard Communication – 4,552 violations: Employers are required to provide a written Hazard Communication Program, label hazardous chemicals, provide a Safety Data Sheet for each chemical, and document employee training.
  3. Scaffolding – 3,336 violations: Primarily applicable to the construction industry.
  4. Respiratory Protection – 3,118 violations: Body shop employees need specific training on policies (written) and practices involving the use of respirators during auto refinishing operations. Training on respiratory protection, fit testing, user seal check, and respiratory cleaning procedures are mandatory, and so is the OSHA Respirator Medical Evaluation Questionnaire. When an employee wears a respirator, even when it is not required under the regulation, information on proper usage, including limitations, must still be provided.
  5. Lockout/Tagout – 2,944 violations: Specific procedures and practices safeguard employees from the unexpected energization or startup of machinery and equipment. A written program and employee training is mandatory (annually). Employees working on automobiles must comply by isolating energy to the engine to prevent inadvertent movement during repair or service. A lockout kit including locks should be available.
  6. Ladders – 2,812 violations: Limit ladder use to trained and experienced staff only. Lock ladders with a chain to prevent usage by untrained staff.
  7. Powered Industrial Trucks (Forklifts) – 2,294 violations: The high number of fatalities associated with forklifts and high number of violations associated with powered industrial truck safety tell us that many workers are not properly trained to safely drive potentially hazardous equipment. OSHA compliance requires training in these specific activities: forklift operations, loading and unloading, and vehicle maintenance. Evaluating an operator every three years is also mandatory.
  8. Fall Protection Training Requirements – 1,982 violations: This moved up a notch from the 2017 number 9 spot. Dealerships watch out for employees working on parts second floor while loading or unloading parts.
  9. Machine Guarding – 1,972 violations: 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 the operation of a machine or accidental contact with the machine may injure the operator or others in the vicinity, hazards must be eliminated or controlled. Moving parts in automobiles, grinders, and brake lathes are all subject to this regulation.
  10. Eye & Face Protection – 1,536 violations: A brand new entry to the top 10 list. Essentially reinforce your Person protective Equipment (PPE) policy and ensure all your employee wear eye and face protection as necessary.


CAL/OSHA (DOSH): Certain notable violations for general industry in California for 2010-2016 can be found here. DOSH proposed total penalties of $59 million in 2017 rising from $54.5 million in 2016.


Federal OSHA Penalties: OSHA penalties which had not earlier kept up with inflation are now being adjusted with rate of inflation. The adjusted penalties for 2018 are as follows:

Type of Violation Penalty



$750 per violation




$12,934 per violation


Failure to Abate


$12,934 per day beyond abatement date


Willful or Repeated


$129,336 per violation



(willful violation causes employee death)


$250,000 for individual

6 months prison

$500,000 for corporation

Celly Services is available to audit your facility for compliance with OSHA standards as applicable to the dealership. Please call us at (562) 704-4000 or email Sam at sam@cellyservices.com.

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

Posting of Prop 65 Signs at Auto Dealerships (CA Only)

California’s Proposition 65, also called the Safe Drinking Water and Toxic Enforcement Act, was enacted in 1986. It is intended to help Californians make informed decisions about protecting themselves from chemicals known to cause cancer, birth defects, or other reproductive harm. The law had certain nuances not normally seen in toxic chemical regulations. The specific ones that catch our attention are as follows:
  • No Harm Requirement: Most of the regulations require that an actual harm be done before damages be awarded. In this case, the absence of mere warning was sufficient cause for dealers to cough up big money. A penalty of $2500 per day!
  • Standing: In order to litigate, a plaintiff must allege some connection to and actual or potential harm. Under this unique law, without harm but the mere absence of notice was sufficient cause for payment to plaintiff lawyers.
  • Bounty Hunter Clause: Proposition 65 is enforced entirely through litigation. While California’s AG is vested with principal enforcement, Proposition 65 also allows any individual or organization “acting in public interest” to sue for violations. The individuals or organizations can potentially collect attorney fees and 25% of any penalties assessed. Reportedly, 20,000 businesses have paid more than $600 million in penalties since 1987. This makes the case to use your $200 sign kit even stronger!

What Chemicals Need Warning?

This list currently includes more than 850 chemicals. Proposition 65 does not ban or restrict the sale of chemicals on the list. The warnings are intended to help Californians make informed decisions about their exposures to these chemicals in the products they use and the places they go.

What Signs Do I Need & Where Do I Order?

In general, an average automobile dealership may need 8 signs for various locations. A copy of these signs is attached with guidance for posting. Signs may be ordered through your vendor or through your Reynolds & Reynolds representative. Consumer product warning signs must be obtained from the product manufacturer.

What Are the Most Significant Changes to the Proposition 65 Warnings For Consumer Products?

Since the original warning requirements took effect in 1988, most Proposition 65 warnings simply stated that a chemical is present that causes cancer or reproductive harm, but they did not identify the chemical or provide specific information about how a person may be exposed or ways to reduce or eliminate exposure to it. New OEHHA regulations, which take effect in August 2018, change the safe harbor warnings which are deemed to comply with the law in several important ways. For example, the new warnings for consumer products will say the product “can expose you to” a Proposition 65 chemical rather than saying the product “contains” the chemical. They will also include:

  • The name of at least one listed chemical that prompted the warning
  • The Internet address for OEHHA’s new Proposition 65 warnings website, http://www.P65Warnings.ca.gov, which includes additional information on the health effects of listed chemicals and ways to reduce or eliminate exposure to them
  • A triangular yellow warning symbol “ warning-sign” on most warnings

What Are Other Highlights of the New Warnings System?

The new warning regulation also:

  • Adds new “tailored” warnings that provide more specific information for certain kinds of exposures,products, and places.
  • Provides information for website warnings for products purchased over the Internet
  • Provides information for warnings in languages other than English in some cases
  • Clarifies the roles and responsibilities of manufacturers and retailers in providing warnings.

Why are Proposition 65 Warnings Changing?

In 2013, Gov. Edmund G. Brown Jr. proposed reforms to strengthen Proposition 65. The Governor called for changes to “require more useful information to the public on what they are being exposed to and how they can protect themselves.” He added, “This is an effort to improve the law so it can do what it was intended to do – protect Californians from harmful chemicals.”

In 2015, UC Davis researchers interviewed more than 1,500 randomly selected Californians and asked them to compare the new specific warnings to the current generic warnings. The results were dramatic – 77 percent said the new warnings would be more helpful than the current system.

When Will the Changes Take Effect?

In August 2016, the Office of Administrative Law approved the new regulations for improved Proposition 65 warnings. Businesses can currently choose whether to provide the old warning or the new warning as part of the regulation’s two-year phase-in period. Beginning August 30, 2018, the old warning system will expire and businesses that want “safe harbor protection” that deems them in compliance with Proposition 65 will use the
new warning system.

What is the Purpose of the New Proposition 65 Warnings Website?

People who read Proposition 65 warnings and want to learn more can go to the website to find additional information about chemicals and best practices for reducing or eliminating exposures. The website contains fact sheets about Proposition 65 chemicals and specific types of exposure, anything from furniture products to enclosed parking facilities. It also answers frequently asked questions about Proposition 65 and includes a glossary of Proposition 65 terms.

Will Businesses Be Required to Provide the New Warnings?

Using the safe harbor warnings is an effective way for businesses to protect themselves against Proposition 65 enforcement actions. Businesses that use the safe harbor warnings are deemed compliant with the law’s requirement for clear and reasonable warnings.

Businesses have the option to provide different warnings if they believe they comply with the law. Additionally, small businesses with fewer than 10 employees are exempt from Proposition 65’s warning requirements.

Will Products Manufactured Before August 2018 Need to Use the New Warnings?

Products manufactured before August 30, 2018 will not need new warnings if they meet the requirements that were in effect at the time of their production.

What Circumstances Will Require Warnings in Languages Other Than English?

When a consumer product sign, label or shelf tag used to provide a warning includes consumer information in a language other than English, the warning must also be provided in that language in addition to English. Facilities that provide signage in non-English languages would also have to provide any required warnings in those languages, in addition to English.

For Internet purchases, warnings can be provided by including a clearly marked hyperlink using the word WARNING on the product display page.

Which Exposures, Products, and Places Have Specific Tailored Warnings?

In addition to the warnings for chemical exposures from consumer products, the new regulation provides specific warnings for exposures from:

  • Alcoholic beverages, food and non-alcoholic beverages, prescription drugs, dental care, wood dust, furniture products, diesel engines, vehicles, and recreational vessels
  • Enclosed parking facilities, amusement parks, petroleum products, service stations and vehicle repair facilities, and designated smoking areas

What Are the Warning Responsibilities for Manufacturers and Retailers?

The new system clarifies that manufacturers have the primary responsibility for providing Proposition 65 warnings. Manufacturers can choose whether to put warning labels on their products or to provide notices to their distributors, importers or retail outlets that a product may cause an exposure to a listed chemical that requires a warning provide warning signs or other warning materials. Manufacturers can also enter written agreements with retailers to modify this allocation of responsibility as long as the consumer receives a clear and reasonable warning before her or she is exposed to a Proposition 65 chemical.

Retailers must confirm that they received the notice and must use the warning signs or other materials provided by the manufacturer.

Are There Other Regulations to Assist Businesses with Warning Requirements?

In addition to other forms of compliance assistance, OEHHA has regulations that set procedures for requesting advice from the agency including Interpretive Guidelines and Safe Use Determinations.

There is also a procedure for requesting a Safe Use Determination. A Safe Use Determination is a written statement issued by OEHHA that interprets whether specific sets of exposures require warnings. For example, in recent years, OEHHA has issued several Safe Use Determinations related to exposures from diisononyl phthalate (DINP) in vinyl flooring and outdoor furniture products.

Josh Gohlke in the SF Chronicle on May 5, 2018 says “It’s a paradox of life in a place whose supposed tolerance is belied by petty, pointless intrusions of the nanny state – where a person might negotiate clouds of guilt free marijuana smoke only to be scolded for needing a cup of coffee”.

SOURCES: www.P65Warnings.ca.gov & https://oehha.ca.gov/

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

Transformation of the Haz Waste Manifest – From the Stone Age to the Modern Age

Background: Historically and well into the 60’s and 70’s some of the hazardous wastes were being dumped illegally and contaminating the environment. Cleanup of illegal dump sites such as Stringfellow and Love Canal were costing the taxpayers millions of dollars. Congress took action and enacted the Resource Conservation and Recovery Act (RCRA) of 1976 that created a “cradle-to-grave” liability for waste generators as related to disposal of these wastes. In summary, the generator is ultimately liable for the disposal of hazardous wastes from the time it was generated until the time it is finally disposed/recycled. Liability for cleanup of the environment damaged by illegal disposal may flow to the generator. The US EPA created a Hazardous Waste Manifest System (Manifest) to track the shipment hazardous waste from the generator to the off-site Treatment, Storage or Disposal Facility (TSDF). The tracking system is time and paper intensive. The new system is expected to be paperless and a time saver.
The Manifest: Under the 6 page manifest system currently in effect, the hauler brings the manifest duly completed to the generator. The Generator must verify all information on the manifest as any inaccuracy on the manifest brings liability to the generator. We note that the federal manifest and CA manifest are the same but California has more wastes that have to be manifested. California also has more taxes on the hazardous wastes generated including some complicated reporting requirements for large generators (over 12 tons/year). The good news is that only some of the waste dealers produce needs a manifest.
The Manifest Process (Now): The person designated by the generator signs the manifest acknowledging the nature and amount of waste being hauled away. The driver for the waste hauler leaves a copy (Copy 1) with the generator. The Generator then mails a photocopy of Copy 1 to Cal/EPA in Sacramento (Generator Manifests, PO Box 400, Sacramento CA, 95812). Within 45 days, the generator will receive a second copy (Copy 2) of the manifest from the TSDF with signature at the bottom acknowledging reciept of the waste. Copy 2 must be matched with Copy 1 and maintained in files for a period of 3 years. In the event Copy 2 is not received, the hauler/TSDF must be contacted. Copy 3 is mailed to the EPA by TSDF, Copy 4 is kept by the TSDF and Copy 5 is kept by the hauler. Copy 6 is for the 2nd hauler, if any.
Federal manifest procedures are listed here.
Paperless Process: The EPA established the e-Manifest system according to the Hazardous Waste Electronic Manifest Establishment Act, enacted into law on October 5, 2012. The “e-Manifest Act” authorizes the EPA to implement a national electronic manifest system and requires that the costs of developing and operating the new e-Manifest system be recovered from user fees charged to those who use hazardous waste manifests to track off- site shipments of their wastes. In January 2018, the EPA published its final methodology for setting user fees based on the costs of processing manifests. By enabling the transition from a paper-intensive process to an electronic system, the EPA estimates e-Manifest will ultimately reduce the burden associated with preparing shipping manifests by between 300,000 and 700,000 hours, saving state and industry users $75-$90M annually.
 June 30, 2018: Now 6 years later, the e-Manifest Act is taking effect, which makes two changes to the current manifest system. The first change is that waste generators will be allowed to submit hazardous waste manifests electronically through the EPA’s e-Manifest system. Generators looking to use the e-Manifest system must register online here. The registration process requires confidential information and must be completed by at least two dealership managers. We have provided a step-by-step guide for e-Manifest registration hereThe second change happening to the manifest system is that the EPA will charge the TSDF a fee for every manifest produced. TSDF’s are expected to share this expense with generators.
The EPA’s goal is to phase out the paper manifest system and replace it with the e-Manifest within the next 5 years. Since this law is in its early rollout phase there are going to be updates and changes as the EPA, generators, waste haulers, and TSDF’s adapt to the new system. Below we have outlined the different ways dealerships can currently submit manifests:
1.     Mailed Paper Manifest: The generator, waste hauler and receiving facility all sign on paper. If the dealership is NOT registered for e-Manifest, follow the old paper manifest procedures outlined under The Manifest Process on the previous page. Generators using this option do not need to register on the EPA website. Fee is $20/manifest.
2.     Registered for the E-manifest: As explained on the previous page, if the facility is registered for the e-manifest system, then the paper copy of the manifest can be submitted electronically as a PDF scan or image upload. Fees are less than that for option 1 above.
NOTE: Currently, the EPA has not made changes to the record keeping requirements. Paper copies of all manifests must be retained on site. Paper copy of the signed manifest from the waste hauler received at the time of pickup must be paired with a copy of the signed manifest from the disposal facility. Use the Black Box.
Paperless Option: The dealership must be registered on the e-Manifest website. The generator, waste hauler and TSDF will all sign electronically. The hauler(s) have to develop software that can communicate with the state and federal agencies. We are told this can take up to 5 years. Haulers are expected to keep generators informed as the paperless system becomes available.
CA EPA ID Numbers: The federal EPA populated the e-Manifest system with CAD or federal EPA ID numbers, however, they did not account for the 90,000 CAL numbers issued by Cal/EPA. Reportedly, these numbers are being loaded into the system. California dealers may have to wait to get this system working full tilt.

References: https://www.epa.gov/e-manifest & https://www.epa.gov/sites

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