e-Manifest Third Rule compliance checklist: Countdown to December 1

An overview of roles

The Environmental Protection Agency (EPA) requires all owners and operators of UST systems to designate:

• One Class A operator and one Class B operator for each UST or groups of USTs, and
• Each qualifying person at the facility as a Class C operator.

Class A operators are responsible for operating and maintaining USTs in line with the regulations. A Class A operator generally manages the resources and personnel involved to ensure UST operations comply.

A successfully trained Class A operator:

• Makes informed decisions about compliance; and
• Determines whether the facility complies with operation, maintenance, and recordkeeping requirements.

Class B operators handle the day-to-day responsibilities for managing USTs (like conducting in-field operations).

A Class B operator with sufficient training implements applicable regulatory requirements in the field on typical UST system components or site-specific equipment.

Class C operators provide immediate responses to UST-related problems.

An adequately trained Class C operator takes the necessary response actions to emergencies or alarms caused by UST spills and releases.

Basic training requirements

EPA outlines the minimum training requirements for each operator type at 40 CFR Part 280 Subpart J. All classes of operators must be trained or pass a comparable examination. Class C operators have the additional option to receive training from a Class A or B operator at the facility.

A facility can designate an individual for multiple operator classes. Any person with multiple designations must complete the required training or comparable examination for all applicable classes.

Class A and Class B operators must be trained within 30 days of beginning UST duties. Class C operators have to be trained before starting their UST responsibilities.

Class A operators should understand the purpose, methods, and functions of:

• Spill and overfill prevention;
• Release detection;
• Corrosion protection;
• Emergency response;
• Product and equipment compatibility and demonstration;
• Financial responsibility;
• Notification and storage tank registration;
• Temporary and permanent closure;
• Related reporting, recordkeeping, testing, and inspections;
• Environmental and regulatory consequences of releases; and
• Training requirements for Class B and Class C operators.

Class B operators may be trained in either:

• General requirements for all compliance rules and the equipment commonly used at UST facilities, or
• Site-specific requirements that only cover the regulations and equipment applicable to the facility.

Additionally, Class B operators need to know the purpose, methods, and functions of:

• Operation and maintenance;
• Spill and overfill prevention;
• Release detection and related reporting;
• Corrosion protection;
• Emergency response;
• Product and equipment compatibility and demonstration;
• Reporting, recordkeeping, testing, and inspections;
• Environmental and regulatory consequences of releases; and
• Training requirements for Class C operators.

Class C operators must know how to respond with the correct actions to emergencies or alarms that are caused by spills or releases from UST operations, including notifying the authorities.

Common training questions

Consider these FAQs to help ensure your UST operator training programs comply.

How are operators evaluated?

Facilities must evaluate each operator via testing, a practical demonstration, or another approved approach.

When is retraining required?

If a UST system is found to be noncompliant, Class A and Class B operators at the facility must complete a training program or comparable examination that at least covers the areas out of compliance (unless exempt per 280.244).

Retraining should be completed within 30 days of the noncompliance determination. The training program or examination has to be developed or administered by a third party (i.e., an independent organization, the implementing agency, or a recognized authority).

How is training tracked?

Facilities are required to keep paper or electronic records that verify training and retraining for as long as the operators are designated. The records should contain at a minimum the information at 280.245(b).

What about state requirements?

It’s essential to check state UST regulations where your facilities operate. EPA has approved most states to implement the UST program. State requirements are at least as stringent as federal standards, and many state programs impose stricter rules.

Usually, operator training is obtained from third-party organizations that must be registered and approved by state environmental agencies to ensure the programs comply with federal and state requirements.

Key to remember: Training requirements for underground storage tank operators are based on their designated class: A, B, or C.

Emission inventories: often counted together

Emission inventories help regulatory agencies track actual emissions from facilities over time. These records support air quality models, guide policy, and help protect public health.

In many cases, HAPs that are also VOCs (like toluene or xylene) are included in the total VOC count. For example, the Environmental Protection Agency (EPA) includes HAP-VOCs in its National Emissions Inventory, which supports regional air quality models, like the Community Multiscale Air Quality (CMAQ) system.

Frequently Asked Question: What's the National Emissions Inventory?

As an example, the Texas Commission on Environmental Quality recommends using conservative “first-cut” estimates for both VOCs and HAPs. This makes early reporting easier and helps avoid underestimating emissions.

Potential to emit (PTE): counted separately

PTE calculations are used to determine a facility’s regulatory status, such as whether it qualifies as a major source under the New Source Review (NSR) or Title V programs or is subject to Maximum Achievable Control Technology (MACT) standards.

In this context, HAPs and VOCs are counted separately because they're subject to different thresholds, including:

• 10 tons per year (TPY) for a single HAP or 25 TPY for total HAPs; and
• Typically 100 TPY for major source classification under NSR, though this can vary by attainment status.

This separation is critical. A facility might exceed the HAP threshold and trigger MACT requirements, even if its VOC emissions are below NSR thresholds — or vice versa. As an example, if a paint booth has the potential to emit 500 pounds of toluene, this is counted as 500 pounds of HAP and 500 pounds of VOC. Even though that seems like double-counting for the same emission, it's important to include both totals separately.

State-by-state variability

While federal rules provide a baseline, states often have their own interpretations and requirements:

• Ohio offers detailed guidance on calculating VOC and HAP emissions separately for permitting purposes. Facilities must demonstrate compliance with both sets of thresholds.
• Texas uses a tiered approach. Facilities begin with conservative estimates and refine them only if emissions approach regulatory thresholds.
• California maintains stricter standards and often requires separate reporting for toxic air contaminants (TACs), which include many HAPs. The state’s Air Toxics Hot Spots Program adds another layer of complexity.

Why the distinction matters

Failing to understand how HAPs and VOCs are counted can lead to serious compliance issues:

• Permitting errors: Misclassification can result in incorrect permit applications or missed regulatory obligations.
• Underreporting risks: Facilities may inadvertently underreport emissions if they assume HAPs are always included in VOC totals.
• Modeling impacts: While combined inventories help with regional modeling, they may obscure the risks posed by individual pollutants.

Recommendations for facilities

To stay compliant and avoid costly mistakes, implement the following:

• Check state guidance: Requirements vary widely. Always consult your state environmental agency.

• Use Safety Data Sheet data: Identify both VOC and HAP content in raw materials.
• Maintain separate records: Keep VOC and HAP data distinct, especially for PTE calculations.
• Consult experts: When in doubt, seek help from J. J. Keller & Associates, Inc. subject matter experts using the Expert Help feature.

Key to Remember: The way HAPs and VOCs are counted depends heavily on context. Understanding these distinctions — and how they vary by state — is key to maintaining compliance and protecting air quality.

Long-term actions

The DOT is working on other rule changes that have an uncertain future. This includes:

• Removal of the rules governing drivers’ employment applications.
• Updates to the “tank vehicle” definition to clarify the need for a tank endorsement.
• Rules requiring vehicles to be equipped with an electronic ID for enforcement purposes.
• A proposal to add new fees for companies that are self-insured.
• Changes to the rules for enforcement proceedings.

Key to remember: The DOT is planning numerous rule changes for late 2025 and beyond. Stay tuned for rulemaking actions from the FMCSA and other DOT agencies, and weigh in when public comments are sought.

The requirement

Under 49 CFR 396.17, every CMV — including trucks, tractors, and trailers of any size — must undergo a comprehensive inspection at least once every 12 months. This is tied to the “commercial motor vehicle” definition in 49 CFR 390.5T, which includes vehicles or vehicle combinations over 10,000 pounds and operating in interstate commerce, even if a commercial driver’s license is not required.

The inspection must cover all components listed in Appendix A to Part 396, and proof of passing the inspection must be carried on or with the vehicle at all times.

Acceptable documentation

How does a driver prove the vehicle(s) passed the inspection? There are two ways:

1. Carry a copy of the full inspection report described in 396.21; or
2. Point to a sticker or decal on the vehicle, showing:
   1. The date of inspection (not the due date);
   2. The name and address where the full inspection report is located (so an inspector knows where to find it);
   3. A unique vehicle ID (VIN, plate number, fleet number, etc.), unless the vehicle is clearly marked with a unique ID (cross-referenced on the long inspection form); and
   4. A certification that the vehicle passed inspection under 396.17.

The sticker may be located anywhere, as long as the driver knows where it is and it’s not overly difficult for the inspector to find it.

Violations typically occur due to:

• Missing, obscured, or expired inspection documentation on the vehicle;
• Failure to inspect trailers, converter dollies, or other vehicles that form part of a CMV;
• Misunderstanding the required inspection interval (or simply forgetting to do the inspection on time); or
• Assuming that some other type of inspection qualifies.

During an audit, if the investigator finds that 10 percent or more of your fleet’s annual inspections were not done as required, it’s considered a “critical” violation that could harm your safety rating. In addition, a J. J. Keller analysis found that the average fine that motor carriers paid for this violation was $5,713 (over the period from 2021-2024).

Liability is another key concern. A crash involving a CMV that wasn’t inspected in the past year could call your safety practices into question and result in a sizable verdict in the plaintiff’s favor.

How to stay compliant

Motor carriers must take proactive steps to avoid these costly violations: • Ensure annual inspections are performed on time. Schedule inspections before the 365-day mark from the last inspection.

• Inspect all vehicles. From lightweight one-axle pieces of equipment to flatbeds, shuttle buses, dry vans, and Class 8 tractors, be sure to include all vehicles in the inspection program, not just power units.
• Use qualified inspectors. Inspectors must meet the qualifications outlined in 396.19 — even if they work for a third party — and you must be prepared to provide proof of those qualifications to an auditor. An individual may be qualified by having at least one year of experience, but you need to be sure it’s documented.
• Maintain proper documentation. Ensure drivers know where the sticker or report for each vehicle is located and that it’s legible and current. Also be sure to keep inspection reports for 14 months.
• Ensure your state inspection program is “equivalent.” If your vehicles are inspected annually under a state-mandated program, make sure the program is on the federal list of inspection programs that are considered “equivalent” to the inspection required under 396.17. If not, you’ll need to do another inspection before operating across state lines.
• Audit your fleet regularly. Conduct internal audits to verify inspection dates and documentation. Identify and correct gaps in your compliance program.
• Train drivers and maintenance staff. Educate drivers on the importance of carrying proof of inspection, and on the importance of checking for that proof during their pre-trip inspections. Train maintenance personnel on inspection standards and documentation requirements.

With violations climbing, motor carriers must treat 396.17 compliance as a top priority. The cost of noncompliance isn’t just financial — it can lead to out-of-service orders, fines, failed audits, liability, and reputational damage.

Key to remember: Stay ahead of the curve when it comes to annual inspections. Review your inspection protocols and ensure every vehicle in your fleet is documented, inspected, and compliant.

The number tell the story

Out of 4,629 inspections, there were 1,169 hazmat -related violations. Here’s the shocker, more than half of those (598 violations to be exact (51%)) were serious enough to place vehicles OOS. That means those vehicles couldn’t continue down the road until the issues were fixed.

So, what kind of issues were inspectors finding? Here’s a quick look at some of the most common issues found in the U.S.:

• Placarding violations: 192 total (non-bulk and bulk)
• Package marking issues: 126 total
• Missing emergency response information: 70 violations
• No PHMSA registration: 35 violations
• Leaking packages: 18 violations
• Undeclared hazmat: 16 violations

What gets you put out of service?

Not all hazmat violations will get you placed OOS. According to the CVSA OOS criteria, here are some of the violations that can get you sidelined:

• Missing hazmat shipping papers
• Missing 50% or more of required markings or placards
• Displaying incorrect placards for the hazard
• Having unauthorized, damaged, or leaking packaging
• Improper or no cargo securement
• Transporting non-compatible hazmat

What's being hauled?

During the blitz, inspectors looked at 7,294 packages across all nine hazmat classes. The most common materials found included:

• Class 3 (Flammable liquids) – 2,478 packages
• Class 2 (Gases) – 1,239 packages
• Class 8 (Corrosives) – 997 packages

What you can do

There are some actions you can take to reduce or eliminate your chances of receiving an OOS violation. To stay compliant and safe:

• Double-check your placards, labels, and markings.
• Make sure you have your hazmat shipping papers.
• Inspect your cargo for leaks or damage before hitting the road.
• Stay up to date on hazmat training.

Key to remember: The CVSA’s Road Blitz isn’t just about enforcement, it’s about safety. These inspections help keep dangerous materials from causing harm on the road.

Why is reducing waste so urgent?

Even though the pandemic ended a few years ago, there are still too many trucks on the road and costs are higher than ever.

Four focus areas

Since carriers can’t raise prices easily, they must save money and work more efficiently. These four key areas are a great starting point on which to focus cost reduction actions:

1. Fuel efficiency

Fuel is one of the biggest costs for trucking companies. When business is good, fuel savings are less concerning for many carriers. But in tough times, saving fuel is one of the easiest ways to cut costs.

Reduce fuel use by:

• Making sure drivers turn off the engine when parked.
• Using engine data to track how long trucks are idling and coach drivers as needed.
• Giving bonuses to drivers who meet fuel-efficiency goals.
• Activating the automatic engine shut-off feature.
• Installing systems that heat or cool the cab without running the engine.

Fuel savings example:

If a semi-truck idles 10 hours less each month, it saves about 8 gallons of fuel. At $3.71 per gallon, the current United States average cost per gallon of diesel, that’s a savings of $29.68 per truck per month.

For a fleet of 100 trucks, a carrier would save $2,968 per month or $35,616 savings per year.

Fuel savings add up quickly when an entire driver group can reduce their fuel cost per mile.

2. Accident and injury costs (Insurance)

The best way to keep drivers safe and lower insurance costs is to use dash cam video combined with coaching. The use of triggered video clips help spot unsafe driving early and fix it before it causes crashes or violations.

Companies without best-in-class safety programs may face more excessive lawsuits, higher insurance bills, or even be shut down. Just following the rules isn’t enough—carriers need to actively coach and train drivers to stay safe and legal.

3. Maintenance and repair expenses

Drivers must check their trucks every day before driving. This helps catch problems early and avoid expensive repairs on the road.

Best practices include:

• Training drivers to check tire pressure and tread condition daily.
• Using electronic Driver Vehicle Inspection Reports (e-DVIR).
• Replacing parts before they break using artificial intelligence analysis or regular checks.

Timely maintenance and repairs done in a company shop matter because fixing a truck on the road can cost up to four times more.

4. Asset productivity

Many companies use GPS tracking to see where their trucks and trailers are and whether they’re in use. This helps spot trucks and trailers that sit too long at a customer or other locations.

If carriers don’t track their trucks and trailing assets, they tend to have too many, which is very costly. Tracking assets makes waste more visible and creates a call to action to reduce assets or get them back into productive service.

Key to remember: To survive the ongoing freight and rate slowdown, trucking companies must focus on cutting costs in these four areas to start.

How equipment failure turns into a hazard:

Neglected maintenance can create serious risks, including:

• Mechanical failures – unmaintained machinery can suddenly seize, break apart, or eject parts.
• Electrical hazards – frayed cords, worn insulation, or faulty breakers can cause shocks or fires.
• Chemical releases – worn seals, cracked tanks, or failed valves can ultimately lead to hazardous spills.
• Ergonomic strain – poorly calibrated or damaged equipment can force employees into awkward or unsafe positions.

These risks aren’t just hypothetical; OSHA frequently cites employers after incidents where the root cause was poor or non-existent preventative maintenance.

Key elements of a safety driven PM program:

1. Risk based scheduling – prioritize maintenance on equipment with the greatest safety risks (ex. forklifts, overhead cranes, pressure vessels, and electrical systems). Maintain a critical equipment registry that highlights assets where failure could lead to injury or regulatory violations.
2. Standardized procedures – document step-by-step PM tasks with a strong emphasis on safety. For example, include lockout/tagout steps, PPE requirements, and confined space entry procedures. Train employees to follow SOPs consistently to reduce human error.
3. Qualified personnel – preventative maintenance is only as good as the people performing it. Ensure technicians are trained not only on the task, but on the safety hazards of the equipment.
4. Integrated safety checks – incorporate safety specific items in PM inspections such as checking emergency stops, guarding, grounding, or ventilation performance.
5. Document everything – use digital tracking to log inspections, repairs, and part replacement. This protects employers during audits and helps spot recurring issues.
6. Operator involvement and pre-use checks – empower front-line employees to perform daily pre-use inspections such as forklift inspections and machine guarding verification. Create simple reporting tools to flag issues before they escalate.
7. Corrective action and follow-up – establish a system for tracking identified hazards until resolution through work orders or corrective action logs. Communicate completion of corrective actions to affected employees.

A well-run preventative maintenance program is, at its heart, a safety program. While cost savings and productivity gains are valuable, the greatest benefit is protecting workers from harm’s way. By preventing equipment failures, ensuring safety systems function correctly, and reinforcing a culture of care, PM programs create a safer workplace where employees can perform their jobs with confidence. Simply put, machines can be replaced – people cannot. That’s why preventative maintenance isn’t just smart business, it’s a commitment to worker safety.

Keys to remember: A safety driven PM program isn’t just about keeping machines running. It’s about making sure every inspection, service, and repair is performed with worker safety in mind.

Missing opioids and a dazed nurse

In this case, hospital staff members noticed opioids missing from a controlled room in the intensive care unit. Two nurses reported to a supervisor that medication had been obtained under their credentials, but that they had not taken it out.

The supervisor questioned staff members about the missing drugs. During the investigation, coworkers reported that a nurse with access to the room looked tired, dazed, and out of sorts. It was found that she had accessed the room containing the medication around the time it went missing.

Supervisors asked the nurse to take a drug test and a fitness for duty exam. The test came back positive, but the nurse said the positive result was due to medication she had taken the previous evening for a shingles flare-up.

As the investigation continued, the nurse asked to go home because she was unable to complete the charts she was working on. Before she left, a supervisor told her she was suspended until further notice.

The nurse was later terminated, but the day before her termination, she filed for Family and Medical Leave Act (FMLA) leave. The certification form contained only vague information, however.

Claims don’t hold up

The nurse’s numerous claims against the hospital included:

National origin discrimination: The nurse, who described herself as Salvadorian, claimed the hospital discriminated against her and violated her rights under Title VII by not subjecting others on duty to an investigation or fitness for duty exam. The court found, however, that all employees were asked about the missing medication, and she was the only one acting abnormally. Her behavior was the reason for the fitness for duty exam, not her national origin.

She also said that her coworkers made anti-Hispanic comments that impacted the hospital’s investigation. The court found, however, that her termination was based on the results of the investigation, not coworker comments.

The court also noted that the nursing supervisor quickly responded after learning of the missing medication. In addition, because the nurse said she had taken a prescription medication that could have caused a positive drug test, the test was treated as negative.

Disability discrimination: The nurse argued that she was considered disabled and protected by the Americans with Disabilities Act (ADA) because of shingles that caused severe pain. The court found, however, that she didn’t explain how she was limited by this disability and failed to provide a record of impairment.

Family and Medical Leave Act: The nurse’s sparse FMLA certification didn’t show she was entitled to leave, the court found. Her request was processed normally, and she didn’t have enough evidence to show that the hospital fired her in retaliation for filing an FMLA claim.

State anti-discrimination laws: The employee also sued under the Illinois Human Rights Act, but her claims failed because she lost the federal Title VII and ADA claims.

Imperfections don’t derail the case

During its investigation, the hospital made some mistakes. The nurse was allowed to drive home, although hospital policy called for her to be sent home in a cab or go home with a family member. The nurse was also asked to finish her charting work, which was a policy violation.

These mistakes didn’t hurt the employer’s case, however. The court found that the hospital didn’t violate any laws when terminating the employee.

Key to remember: When drug use is suspected, quick action, a thorough investigation, and documentation can help an employer build a solid case that provides a valid reason for actions taken against an employee.

United States Court of Appeals for the Seventh Circuit, Lohmeier v. Gottlieb Memorial Hospital, August 14, 2025

Steps to take when an EAD is revoked

When an employer learns that a worker’s EAD has been revoked, the employer must reverify the employee’s eligibility to work in the United States. To do this:

• Fill out Supplement B of the Form I-9.
• Allow the employee to provide a document from List A or List C to show eligibility to work in the United States.

An employee whose EAD has been revoked may have employment authorization based on another status or provision of law. They can present acceptable Form I-9 documentation to demonstrate that they can continue to work in the United States.

An employer may not continue to employ an individual who does not provide proof of current employment authorization, however.

An employer should contact their legal counsel if they have questions about worker immigration status, and the employee can consult an immigration attorney to see if there is a way to have their work authorization extended. An individual cannot be legally employed until they have the proper documents to prove current employment authorization.

Eligibility remains intact

Once an employee meets these three criteria for a particular reason, their eligibility lasts for the duration of the entire 12-month leave year period. Employers don’t need to reassess an employee’s eligibility during that timeframe for that leave reason.

If, however, that same employee needed leave for a different qualifying reason, then employers would reassess whether the employee met the eligibility criteria.

This can result in employees being eligible to take FMLA leave for one qualifying reason, but not another.

FMLA denials don’t remain intact

On the flip side, once employers deny an employee’s leave because the employee didn’t meet the eligibility criteria, employers must reassess that denial once the employee meets the eligibility criteria. The denial doesn’t remain intact for the duration of the 12-month leave year.

If, after not meeting the eligibility criteria, an employee does meet it, regardless of when that happens in the 12-month leave year period, the employee will be eligible to take FMLA leave for a qualifying reason. Employers would need to designate any leave taken after an employee meets the eligibility criteria as FMLA leave.

An employee might, for example, be on non-FMLA leave when they meet the 12-month eligibility criterion. In that situation, any leave taken after the employee meets the 12-months worked threshold would be FMLA leave. The same would be true for the 1,250-hours worked threshold.

Rolling backward challenges

For employers that use the rolling backward method to calculate the 12-month leave year period, an employee’s eligibility for leave for a particular reason would continue for 12 months from the date of the first FMLA absence for the condition.

When a new leave year begins

Regardless of which method employers use to calculate the 12-month leave year, they would recalculate an employee’s eligibility when the employee asked for leave for the first time in a new 12-month leave year.

Key to remember: If employers deny FMLA leave because employees didn’t meet the eligibility criteria, they have to reassess eligibility once employees meet the criteria; the denial doesn’t automatically remain intact. Eligibility, once met, however, doesn’t change for a particular leave reason.

Smallest increment of time

While the U.S. Department of Labor’s Wage and Hour Division has not chimed in directly on whether the FMLA allows this, it didn’t say, in a 2018 opinion letter, that it was prohibited.

In the letter, a health care provider certified an employee’s 15-minute rest breaks as required every hour and were thus covered under the FMLA.

Employers must track FMLA leave using an increment no greater than the shortest time period they use to account for the use of other forms of leave. This is true as long as:

• It’s not greater than one hour, and
• Employers don’t reduce an employee's allotted FMLA leave by more than the amount of leave actually taken.

In other words, employers may not require employees to take more leave than they need to deal with the reasons they took leave in the first place. Employers must count FMLA leave using the shortest increment of leave they use to account for any other type of leave.

Court chimes in

At least one earlier court case saw things differently from the 2018 opinion letter.

To ensure adequate coverage, employees at a company had to take their two 15-minute breaks and one one-hour lunch break at different, staggered intervals.

Sheletha struggled with attendance. Subsequently, she started taking FMLA leave to care for her mother, and the leave was predicted to affect her arrival and departure times. Despite taking FMLA leave in full days, when she was late, she said it was due to the care she was providing.

After being fired, in part for poor attendance, Sheletha sued, arguing that her tardies should have been protected by the FMLA, as she spent the time talking to her mother. The company argued that the FMLA does not entitle employees to take breaks for as long as they choose. It also said that Sheletha had no evidence that she spent the time talking to her mother.

The court leaned on another ruling that said that FMLA leave should constitute time away from a place of work, not merely periodic time away from a desk throughout the day.

Grant v. JPMorgan Chase Bank, N.A., Southern District of Texas, No. H-11-500, November 28, 2012.

In short, employees might be entitled to take FMLA leave as 15-minute breaks. The certification should, however, support this.

To pay or not?

Then there’s the question of pay. Would employers have to pay Emma for additional breaks in our opening scenario? No.

Under the federal Fair Labor Standards Act, rest breaks lasting up to 20 minutes are ordinarily paid. Sometimes, however, short rest breaks that primarily benefit the employee (like Emma) don’t need to be paid.

Employees aren’t entitled to pay for frequent accommodation breaks (that is, breaks to accommodate the employees’ FMLA reasons) that mainly benefit employees.

Key to remember: Tread carefully. Courts might differ on whether employees may take FMLA leave as longer work breaks. Additional breaks, however, don’t have to be paid.

Complimentary for the cause

The Machine Guarding under 29 CFR 1910 Subpart O and the Control of Hazardous Energy Sources (LOTO) standard at 29 CFR 1910.147 serve a very similar purpose of protecting workers. Fundamentally, they complement one another:

• Machine Guarding is a first line of defense, designed to prevent access to dangerous parts during normal operation (e.g., rollers, blades, gears, pinch points). Guards, barriers, and safety devices physically separate workers from moving parts and machine components.
• LOTO is a secondary control, used during servicing or maintenance (not normal operations) when guards may be removed or bypassed. It ensures that machines energy is isolated to prevent startup until work is complete.

Together, these standards form a layered safety approach with guards protecting workers during operations, and LOTO protecting them during maintenance. Since guards may be removed during servicing, the risk of injury is increased, which is where LOTO takes over to control energy and unexpected startup. Without proper LOTO, even a well-guarded machine can become deadly during maintenance or servicing tasks.

While both standards are intended to prevent injuries, they approach worker safety from different angles which can sometimes create confusion or conflict in implementation. The life of the young sanitation worker could have been saved if guards had been in place to prevent the fall into the grinder and proper LOTO had been performed to prevent unexpected start-up of the machine.

Combating the confusion

Both machine guarding and LOTO are essential safeguards designed to protect workers from machinery and energy source hazards, yet they operate under different OSHA standards with distinct expectations and applications. Additionally, confusion is created when dealing with routine vs. non-routine tasks. OSHA allows some minor servicing tasks to be performed without full LOTO if they are routine, repetitive, and integral to production, and if effective machine guarding is in place. As with the incident shared above, how would the employee have determined if cleaning the meat grinder was routine or non-routine — what qualifies as “routine?”

Routine operations are regular, recurring daily tasks with specific procedures. These may include inspections or daily adjustments to machines or equipment (e.g., frequent die changes or clearing regular jams. Non-routine operations are infrequent, unexpected, or new activities with unique risks. These often include emergency maintenance or process start-ups. Cleaning the meat grinder would likely be a routine activity; however, with the unique layout or size of the machinery, guarding alone was not sufficient.

Some maintenance does require removing guards, which exposes workers to hazards. If LOTO procedures aren’t strictly followed, there is a gap in protection. This can often result in the underuse LOTO while relying too heavily on guards when both should be used for full protection.

The confusion between machine guarding and LOTO requirements can be cleared up by:

• Clearly defining tasks that require machine guarding versus those covered by LOTO, and when both may be needed;
• Performing risk assessments to evaluate whether guarding alone is sufficient for specific machines or tasks;
• Documenting and communicating any exceptions to LOTO, including justification and alternative protective measures;
• Auditing programs and procedures regularly to identify and remediate gaps; and
• Training all supervisors and workers of the requirements in both standards.

Blurred by technology

Modern machines often include advanced guarding systems like light curtains or presence-sensing devices. While these tech marvels enhance safety, they can blur the lines between guarding and energy control. From an OSHA lens, these systems do not replace LOTO during servicing, which can add to the confusion for many trying to interpret compliance requirements. It’s imperative to understand that technology often helps protect workers from getting injured by machines, but they aren’t intended to necessarily control energy sources.

Clarity through training

Once employers have sifted through the collision confusion, workers must also be brought up to speed. Often, they have been trained in one standard but not the other, leading to inconsistent application. For example, operators may understand guarding but not LOTO procedures, especially in situations where operations and maintenance are handled by separate personnel.

Keys to remember: LOTO and machine guarding are not just essential, they are complimentary. When used together and correctly, they provide multi-layered approach to protection against serious injuries and fatalities.

The intent of the standard

OSHA’s powered industrial truck (PIT) standard (29 CFR 1910.178) is intended to ensure the safe use of fork trucks, tractors, platform lift trucks, motorized hand trucks, and other specialized industrial trucks powered by electric motors or internal combustion engines. The standard outlines requirements for operational permits and certification.

And, though not specified in the standard itself, PIT operators must be at least 18 years old per federal child labor regulations.

License and certification Q&A

The OSHA PIT standard clearly defines requirements for training and certification. However, some licensing and certification information isn’t as clear. Here are some clarifications:

Q: Who can train, evaluate, and certify PIT operators?

A: OSHA requires in 1910.178(l)(2)(iii) that, “All operator training and evaluation shall be conducted by persons who have the knowledge, training, and experience to train powered industrial truck operators and evaluate their competence.” The OSHA standard doesn’t further define this requirement or set any specific or additional certifications.

Q: Does OSHA require PIT operators to have a valid driver's license?

A: Federal OSHA has no requirement that a forklift operator has a valid motor vehicle driver's license. Some states are more stringent, so check your local and state requirements to confirm.

Q: Does OSHA have regulations that impact an employee’s ability to operate PITs if they’ve received a DUI or suspended license?

A: Because OSHA doesn't require a valid motor vehicle driver's license, the status of that license doesn’t impact PIT operator permitting. Individual states or the employer may have policies that dictate otherwise.

Q: Are PIT drivers required to have their license on them when they are working?

A: Federal OSHA doesn’t require PIT operators to have a license or permit. However, some states such as Michigan do require this. Typically, in states that require a permit or license, the license must be “readily available.” Companies have the option to require the permit or license be carried with the operator.

Q: Are operators required to be trained on each manufacture of PIT model?

A: A June 15, 1999, OSHA letter of interpretation (LOI) clarifies that operators are to be trained and evaluated in the safe operation for the type of truck they’ll be assigned. Operators wouldn’t need additional training for same truck types but would need additional training when truck- or workplace-related training topics are different.

Q: Do PIT operators need to be recertified if they move from one state to another with the same company?

A: In an LOI dated October 1, 1999, OSHA states, "As long as the employer has a reasonable basis to believe that the third-party trainer is qualified and has a program that meets the requirements of the standard, it can rely on that trainer to conduct the training and evaluation of employees and can certify that these employees have been trained. However, the employer may need to provide additional training on site-specific or truck-specific matters." This shouldn’t require retraining for the same type of forklift as already certified; however, workplace conditions or other factors of the new work location may require training for forklift operation in the other state(s).

Operator Impairments

In addition to being properly trained and evaluated, OSHA expects employers to ensure physical capabilities. OSHA references the American National Standards Institute (ANSI) Standard B56.1-1969. Section 6 clarifies that, “Operators of powered industrial trucks shall be physically qualified. An examination should be made on an annual basis and include such things as field of vision, hearing, depth perception, and reaction timing."

Employers should consider OSHA PIT regulations and the General Duty Clause, ANSI standards, and the Americans with Disabilities Act (ADA) requirements when evaluating physical qualifications. In short, if a worker demonstrates the visual, auditory, and mental ability to safely operate PITs, he or she is permitted to operate them.

Keys to Remember

OSHA requires employers ensure the safe use of forklifts and other powered industrial vehicles. Employers must ensure operators have the knowledge, skills, and physical ability to safely operate PITs.

Key OSHA requirements

First, according to OSHA standard 1910.146(d)(9), employers must develop and implement procedures for the following:

• Summoning rescue and emergency services.
• Rescuing entrants from permit spaces.
• Providing necessary emergency services to rescued employees.
• Preventing unauthorized personnel from attempting a rescue.

This is where employers need to put on their critical thinking caps. Ask yourself: Do we have procedures for summoning rescue and emergency services? How do we rescue entrants from our permit spaces?

These conversations need to be had between the key players in your confined space operations. Supervisors, entrants, attendants, and safety personnel should develop and implement these procedures together.

Next, OSHA standard 1910.146(f) requires the entry permits to identify the following:

• The rescue and emergency services that can be summoned and the means (such as the equipment to use and the numbers to call) for summoning those services.
• The equipment, such as personal protective equipment, testing equipment, communications equipment, alarm systems, and rescue equipment, to be provided for entry and rescue.

To facilitate non-entry rescue, retrieval systems or methods shall be used whenever an authorized entrant enters a permit space unless the retrieval equipment would increase the overall risk of entry or would not contribute to the rescue of the entrant.

Next, OSHA standard 1910.146(i) lists the attendants' duties. And in terms of rescue, those duties include:

• Summoning rescue and other emergency services as soon as the attendant determines that authorized entrants may need assistance to escape from permit space hazards.
• When the employer's permit entry program allows attendant entry for rescue, attendants may enter a permit space to attempt a rescue if they have been trained and equipped for rescue operations as required by paragraph (k)(1) of this section and if they have been relieved by another attendant.
• Performing non-entry rescues as specified by the employer's rescue procedure.

And finally, OSHA standard 1910.146(k) offers guidance on designating rescue and emergency services.

Essentially, employers must evaluate a prospective rescuer's ability to respond to a rescue summons in a timely manner. They must take the specific hazards involved into consideration when determining what a “timely” rescue means.

Selecting your rescue team

Employers have two options for designating rescue and emergency services:

1. Select an “in-house” team of employees to be designated for rescue operations.
2. Work with an outside contractor or emergency response team.

If the employer chooses to use an in-house team of employees, the employer must:

• Train affected employees to perform assigned rescue duties.
• Ensure that such employees successfully complete the training required to establish proficiency as an authorized entrant.
• Train affected employees in basic first-aid and cardiopulmonary resuscitation (CPR). The employer shall ensure that at least one member of the rescue team or service holding a current certification in first aid and CPR is available.
• Ensure that affected employees practice making permit space rescues at least once every 12 months by means of simulated rescue operations in which they remove dummies, manikins, or actual persons from the actual permit spaces or from representative permit spaces.

Check out “Part 2” of this series, Confined Space Rescue (Part 2): Partnering with outside resources.

Key to remember: Employers must develop and implement rescue procedures for all permit-required confined space entry operations. Are you prepared?

Follow the procedures

Mechanics may work on dozens of machines, and each machine may have unique lockout/tagout procedures. But do the mechanics actually read and follow the procedures for each machine? Or do they just “know what to do” based on experience? Could other maintenance staff follow the procedures as written?

Make sure that authorized employees actually follow the procedures. If they are unsure about any part of a procedure, or if they skip a step that doesn’t make sense, then the procedure should be updated.

If additional training is needed, it may be best to conduct the training at the machine and ask the mechanics to indicate where the procedure is unclear. If the questions are more than the training group can handle, you may need to call in an expert (electrician, engineer, etc.).

As necessary, revise the procedure until it’s understandable. You want the procedures to be accurate and easy to use. If veteran mechanics think the procedure is hard to follow (or if they have ideas on how to improve the written steps), you want to correct those issues before contractors or new employees need to rely on the procedure.

Complete and accurate procedures not only keep your company in compliance, but help keep your employees safe.

Tainted history

Marijuana rescheduling was proposed by the Department of Justice in May 2024. The proposal looked at moving marijuana from Schedule I to Schedule III of the Controlled Substances Act, placing marijuana in the same classification as prescription drugs.

Hearings on the proposal were scheduled to begin in December 2024 and then early 2025. They have been stayed since January 13, 2025, when Judge John J. Mulrooney granted a pending appeal from proponents of marijuana rescheduling.

They alleged that the proceedings had been tainted because of improper communications by the Drug Enforcement Administration (DEA) with those who had a stake in the case.

Marijuana not a priority

With the appeal pending, Mulrooney oversaw some procedural motions, but no new hearing dates were set.

When Mulrooney, the DEA’s chief administrative law judge, retired on August 1, he pointed out that the Controlled Substances Act requires an administrative law judge to preside over DEA administrative enforcement hearing proceedings. Until a judge is appointed, all matters filed in the case are forwarded to DEA Administrator Terrence C. Cole.

Cole was sworn in as administrator on July 23, but did not mention marijuana rescheduling in a news release listing his priorities.

Workplace considerations

While the issue remains unsettled, employers should:

Be prepared to update their drug and alcohol policy if marijuana reclassification makes a comeback. If it is reclassified to a lower drug schedule, it may need to be treated as a prescription drug.

Continue to follow state laws. Each state law is a little different, but a law may restrict drug testing, protect off-duty use, or prohibit discrimination against individuals who use marijuana. Employers should understand a law’s restrictions.

Consider accommodation requests for medical marijuana patients. Even if off-duty medical marijuana use is not an option, other accommodations for the employee’s underlying medical condition should be considered.

Key to remember: The federal rescheduling of marijuana has stalled, but employers still need to follow state marijuana laws and should be prepared for the issue to resurface.