Performance review timing and FMLA leave

What’s changing and why it matters

Although EPA has been deregulating or loosening some requirements, there are still some standards being tightened across multiple fronts in the coming year:

• Renewable fuel standards (RFS): The EPA proposed higher volume requirements for 2026, including 24.02 billion renewable identification numbers (RINs), up nearly 8% from 2025. This increase pushes stricter expectations on fuel producers and organizations purchasing renewable fuels.
• Stormwater multi-sector general permit (MSGP): A new MSGP set to take effect by February 2026 will require quarterly PFAS indicator monitoring, expanded benchmark sampling, and resiliency measures in stormwater control designs.
• PFAS Reporting under the Toxic Substances Control Act (TSCA): TSCA Section 8(a)(7) mandates PFAS manufacturing and import data collection beginning in April 2026, through October 2026, with extended deadlines for certain small manufacturers.

Failure to prepare could lead to fines, reputational damage, supply chain disruptions, and permit delays. Companies that weave compliance planning into their 2026 strategy will be positioned not just to meet legal deadlines but to sustain operations smoothly.

Key areas of impact

• Renewable fuel standards (RFS) and air emissions The proposed increase in 2026 Renewable Identification Numbers (RIN) volumes, from 24.02 billion to 24.46 billion for 2027, signals tightening air and fuels policy that affects fuel use and emissions accounting.
• Stormwater management The upcoming 2026 MSGP requires expanded quarterly PFAS monitoring, new benchmark triggers, corrective action plans, and integration of climate resilience in design standards.
• PFAS disclosure (TSCA Section 8(a)(7)) Manufacturers and importers of PFAS must submit electronic reporting of usage, volumes, disposal, and exposure data between April and October 2026, with extensions available for smaller operations.

Steps to take now

• Audit compliance programs: Cross-check operations against RIN inventory, stormwater permits, and TSCA reporting duties.
• Upgrade monitoring and recordkeeping: Implement robust electronic systems to track PFAS, stormwater quality, fuel volumes, and emissions.
• Staff training: Educate teams on PFAS obligations, new stormwater protocols, and RFS structures.
• Engage regulators early: Comment on proposed rules, consult during permit drafting, and flag issues during the notice-and-comment period.

Looking ahead

The EPA’s 2026 updates reflect a trend toward increased transparency and environmental accountability. Companies that treat compliance as strategic will not only avoid enforcement but also gain resilience and stakeholder trust.

Key to remember: Start planning now. Early action on EPA rule changes will save time, money, and headaches when enforcement begins.

When captured dust becomes a regulated waste

Under EPA regulations, most collected dust qualifies as a solid waste once it’s removed from a dust collector, hopper, or filter. And despite the name, “solid waste” doesn’t mean solid, benign, or harmless. It simply means a discarded material. At that point, facilities are expected to determine whether the dust is hazardous or non-hazardous under the Resource Conservation and Recovery Act (RCRA). This determination is based on what the dust contains, not how dusty it looks or how long it has been managed that way. Dust generated from metalworking, surface coatings, chemical processing, plastics, or specialty manufacturing can contain regulated constituents such as heavy metals or chemical residues. In these cases, facilities are required to make a waste determination using process knowledge, testing, or a combination of both. This step is often overlooked. Many companies assume that if dust has not caused problems in the past, it must be non-hazardous. Unfortunately, regulators do not accept assumptions as documentation. If there’s no clear waste determination on file, that alone can be cited during an inspection. Misclassifying dust can also have ripple effects. If collected dust is later found to be hazardous, the facility may face issues related to improper disposal, incorrect generator status, or even cleanup liability at the disposal site. What began as a routine housekeeping task can suddenly become a significant compliance issue.

Storage, Disposal, and the Risks of Getting It Wrong

Even when dust is correctly identified as non-hazardous, it still needs to be managed properly. Open containers, poor labeling, and inconsistent handling practices are common findings during inspections. These issues are often viewed as minor, but they can quickly escalate if dust is released, mixed with other waste streams, or stored improperly. Recycling adds another layer of complexity. Many facilities recycle metal dusts or other recoverable materials, which can be a smart environmental and economic decision. However, recyclable does not mean unregulated. Dust being recycled still needs to be stored safely, managed to prevent releases, and documented as legitimate recycling. Without proper controls, regulators may view the material as improperly managed waste. Outdoor storage creates additional risk. Dust stored outside, transferred outdoors, or tracked out of the building can easily become a stormwater concern. Even non-hazardous dust can be considered a pollutant if it migrates off-site during rain events. This is a frequent source of violations under stormwater permits and Stormwater Pollution Prevention Plans (SWPPP), especially when dust management isn’t addressed in the plan. Another common issue is mixing dust with general trash or other waste streams. Once mixed, otherwise manageable dust can become more difficult or impossible to classify correctly. This can complicate disposal, increase costs, and raise questions during audits or inspections. What makes dust especially challenging is that responsibility for it often falls into a gray area. Safety teams may assume environmental is managing disposal. Environmental teams may assume safety has already classified the material. When no one clearly owns the waste determination and disposal process, gaps are almost guaranteed. The most effective facilities treat dust as a waste stream that deserves the same attention as any other regulated material. They document waste determinations, define storage and labeling requirements, train employees on proper handling, and periodically revisit those determinations as processes change.

Keys to remember: Captured dust doesn’t stop being regulated once it leaves the air. Understanding whether collected dust is hazardous or non-hazardous, how it must be stored, and where it can legally go is essential to staying compliant.

Company learns multimillion-dollar lesson

EPA and the U.S. Department of Justice reached a settlement agreement with a North Carolina automotive parts company and its owner for violating the Clean Air Act (CAA) requirements for mobile sources by:

• Manufacturing, selling, and installing more than 250,000 defeat devices on diesel pickup trucks; and
• Installing aftermarket defeat devices on hundreds of diesel pickup trucks.

The company and its owner face civil and criminal consequences and will pay a total of $10 million in fees and penalties.

Civil enforcement

A July 2024 consent decree (pending court approval) requires both parties to pay a combined $7 million penalty. It also bans the company and owner from:

• Manufacturing, selling, offering to sell, and installing defeat devices;
• Transferring intellectual property to help others make or sell defeat devices; and
• Investing in or profiting from other businesses’ defeat devices.

Criminal enforcement

Both the company and owner pleaded guilty to conspiring to violate the CAA. The federal court ordered the company to pay a $2.4 million fine and complete three years of organizational probation. It also ordered the owner to pay a $600,000 fine and serve three years of probation.

What are defeat devices?

A defeat device is any component that “bypasses, impairs, defeats, or disables the control of emissions of any regulated pollutant” (40 CFR 1068.101(b)(2)). Put simply, it’s an illegal device that removes or disables a vehicle’s emissions controls.

There are generally two types of defeat devices: hardware (such as modified automotive parts) and software (like delete tuners). In fact, many of the devices consist of both types that work in tandem. Federal law (and EPA regulations at 1068.101(b)) bans defeat devices used to swerve around vehicle emissions controls. Section 203(a)(3) of the CAA prohibits anyone from:

• Tampering with an EPA-certified vehicle’s emissions control devices to remove them or make them inoperative before selling the vehicle,
• Knowingly tampering with an EPA-certified vehicle’s emissions control devices to remove them or make them inoperative after the vehicle is sold and delivered to the purchaser, and
• Knowingly manufacturing, selling, offering to sell, or installing defeat devices that bypass, defeat, or render inoperative any emission control device.

Common emission control devices include:

• Onboard diagnostic systems,
• Catalytic converters,
• Electronic control units,
• Fuel systems, and
• Diesel particulate filters.

Who do the regulations affect?

The prohibition on defeat devices applies to everyone, from the original equipment manufacturer that installs the vehicle emissions controls to the vehicle owner and operators.

The 1990 CAA Amendments expanded the tampering provision in Section 203(a)(3) to include “any person.” Further, EPA’s regulations at 1068.101(b) “apply to everyone,” such as:

• Vehicle manufacturers;
• Vehicle dealers;
• Automobile repair shops;
• Commercial mechanics;
• Fleet operators;
• Aftermarket automotive part manufacturers, sellers, and installers;
• Owners; and
• Operators.

Compliance tips

Consider these helpful suggestions for maintaining compliance:

• Check and comply with your state and local regulations, as they may be more stringent than federal requirements and impose additional rules. For example, states may require certified technicians to conduct automotive maintenance services on emission controls. States may also prohibit operating, selling, and/or registering tampered vehicles.
• Purchase aftermarket automotive parts only from reputable sources. Obtain proof that the aftermarket parts won’t increase emissions.
• Self-disclose any potential violations you find to EPA and/or the state environmental agency. EPA and many states will lower or waive civil penalties for self-reporting violations.

The case against this automotive parts company and owner serves as a multimillion-dollar reminder about making, selling, installing, or using defeat devices — steer clear!

Key to remember: Steer clear of defeat devices that try to detour around EPA’s vehicle emissions controls to ensure a smooth regulatory road.

Troubleshooting Motus issues

Many carriers are running into obstacles when registering for Motus. The most frequent issue is not being able to claim DOT numbers, and the most common reason for this is that the carrier didn’t update its information before the deadline.

For example, only the company official can claim your USDOT number. This means that if your company official left earlier this year and you didn’t update this information in your portal, then you won’t be able to claim your USDOT number.

If you’re struggling to get your Motus account set up or claim your USDOT number, you must contact FMCSA at 800-832-5660. FMCSA will only work directly with the motor carrier at this point. Once you have set up your account, you can then grant permissions to other individuals — both within and outside of your organization.

Motus watchouts

Motus gives you more control over your registration, but it also puts more responsibility on you. For example, Motus has simplified applying for operating authority, but knowing which authority your company needs remains unclear. Obtaining the incorrect authority type can be costly, and making mistakes on your application can lead to long delays.

Without the correct authority in place, you may run into:

• A delay in approval, which would lead to a delay in beginning operations.
• Additional application fees, as you may need to reapply.
• Compliance issues, which could lead to expensive fees, audits, or even being placed out of service.

Key to remember: FMCSA has rolled out the first phase of Motus, which aims to streamline and simplify compliance, but it also comes with a few additional challenges for motor carriers.

To-do before October 1

Get ready for renewal by taking the following steps now:

• File all your highway use tax returns that are due.
• Pay your taxes. The state will not issue a new certificate of registration if you owe back taxes. Before you apply to renew, make sure that you’ve paid all taxes due under any of the programs administered by the New York State Tax Department, including:
  • HUT,
  • personal income tax,
  • International Fuel Tax Agreement (IFTA),
  • sales tax, and
  • withholding tax.
• Create an online account if you do not already have one and you want to renew your credentials and pay online (https://www.oscar.ny.gov/).
• Make sure your vehicle registration information is correct and accurate. Review and update your information as soon as possible. Incorrect information will delay the processing of your certificates and decals.

Beginning October 1

Once the renewal period opens, renew your credentials and pay your renewal fees online with One Stop Credentialing and Registration (OSCAR).

Submit your renewal application by November 30, 2024, to make sure you receive your decals in time to place them on your vehicles before January 1, 2025.

If you are already enrolled in OSCAR, use your current OSCAR password to renew online.

If you are not enrolled, visit OSCAR, and select Enroll Now. You must have a United States Department of Transportation (USDOT) number and an employer identification number (EIN).

To renew your registration:

1. Visit the OSCAR website and select HUT Renewal from the Business Type drop-down.
2. Enter your information in the USDOT#, NYS Tax ID#, and Password fields, then select Log in.
3. If you have 300 or fewer vehicles, choose either:
   1. Renew all HUT/AFC Certificates of Registration to renew all your active current series permits, or
   2. Select HUT/AFC Certificates of Registration to renew specific permits.
4. If you have more than 300 vehicles, choose either:
   1. Renew all to renew all your active current series permits, or
   2. File renewal to renew select permits.

If you are unable to renew electronically, you may file Form TMT-1.2, Renewal Application for Highway Use Tax (HUT) and Automotive Fuel Carrier (AFC) Certificates of Registrations and Decals – 25th Series.

Key to remember: Take steps now to renew your NY HUT and ensure you receive your new decals before the current ones expire.

What is the NSC?

In 1987, the federal, provincial, and territorial Ministers responsible for Transportation and Highway Safety recognized that due to the deregulation of transportation, there was a need for harmonization and reciprocity in the management of commercial vehicles across Canada. The ministers then signed a memorandum of understanding to develop and implement the NSC to encourage road safety, promote efficiency in the motor carrier industry, and achieve consistent safety standards. The National Safety Code standards remain important instruments of public policy in promoting public safety and the safe and efficient movement of people and goods on Canadian roads.

What are the 16 standards?

The NSC is a set of minimum performance standards, applying to all persons responsible for the safe operation of commercial vehicles. There are 16 NSC standards made up of the following:

• Standard 1 Single Driver Licence Concept
• Standard 2 Knowledge and Performance Tests (Drivers)
• Standard 3 Driver Examiner Training Program
• Standard 4 Driver Licencing Classification
• Standard 5 Self-Certification Standards and Procedures
• Standard 6 Determining Driver Fitness in Canada
• Standard 7 Carrier and Driver Profiles
• Standard 8 Short-Term Suspension
• Standard 9 Commercial Vehicle Drivers Hours of Service
• Standard 10 Cargo Securement
• Standard 11 Maintenance and Periodic Inspection
• Standard 12 CVSA On-Road Inspection
• Standard 13 Trip Inspection
• Standard 14 Safety Rating
• Standard 15 Facility Audits
• Standard 16 Entry Level Training (Class 1)

Now that we have a better understanding of what the NSC represents and what the 16 standards are, let’s take a deeper dive into the standards that apply, starting with Motor Carriers.

NSC Standard 14 — Safety Rating

You might be wondering why we are starting with Standard 14. All provinces in Canada are required to issue an NSC number to all commercial carriers in their governing jurisdiction. A Safety Fitness Certificate (SFC) contains the NSC number, which is the unique identifier for each commercial operator. Ontario calls this number a Commercial Vehicle Operator’s Registration or CVOR.

If you have registered a vehicle that is regulated under the National Safety Code program in Canada, you are required to apply for a SFC or CVOR (Ontario). The SFC or CVOR gives you permission to operate a commercial vehicle.

There have been many new changes recently to the process of not only applying for an SFC but also in maintaining the required certificate. For example, in Alberta, it includes completing an NSC knowledge test online or NSC in a registry office, completing an NSC audit within 12 months of obtaining your SFC, and renewing your certificate every three years.

A provincial authority may not issue a safety fitness certificate to an extra-provincial motor carrier undertaking unless the provincial authority has determined that the undertaking has a “satisfactory”, “satisfactory unaudited” or “conditional” safety rating, as set out in section 5 of Part C of NSC Standard #14.

Safety Rating Categories

Responsibility for motor carrier safety resides, first and foremost, with motor carrier management. The Safety Rating Standard (Standard 14) establishes the motor carrier safety rating framework by which each jurisdiction shall assess the safety performance of motor carriers. There are four safety rating categories as follows:

• Using the information in the motor carrier profile;
• Assigning a value to each of the data listed in the motor carrier profile taking into account its severity and potential safety impact, in accordance with the National Safety Code Standard 7, Carrier Profile:
  • For the 24 months preceding the determination; or
  • In the case of a motor carrier whose motor carrier profile was established less than 24 months prior to the determination, for the period since its establishment;
• Normalizing the weighted data using the motor carrier’s fleet size to reflect the motor carrier’s exposure to risk; and
• Assigning a safety rating to the motor carrier in accordance with the safety rating categories.

The NSC’s safety fitness rests on three building blocks:

• NSC Standard 7: Carrier and Driver Profiles
• NSC Standard 14: Safety Rating
• NSC Standard 15: Facility Audit

Together, these standards provide the safety rating and management framework by which each jurisdiction assesses the safety performance of motor carriers. In part 3, we’ll cover Standards 7 and 15 in greater detail.

Key to remember: We have just touched the surface of the NSC standards and covered likely one of the most important when it comes to maintaining a safe rating and compliance with Jurisdictional regulations.

Submitting employees to drug tests

Can motor carriers drug test their drivers? The short answer is no. Canada does not have a federal regulation that requires drug testing for drivers. However, this does not mean that Canadian motor carriers cannot implement and enforce a drug and alcohol policy for their drivers. In fact, many carriers have developed successful policies that minimize the risk of getting in trouble with the law and ensure the safety of their drivers and the public.

For the most part, drug testing not only violates the Human Rights Code, but it is also a gross infringement on an individual’s reasonable right to protection of privacy. Motor carriers operating in Canada need to make sure they consider the human rights and privacy rights of their drivers when implementing any type of drug testing program and policy.

Motor carriers have the right to expect their drivers to arrive at work fit for duty and remain that way throughout the duration of their shift. Communicating this expectation to them is important and, at a minimum, should be communicated by implementing a ”fit-for-work” policy that makes your expectations around impairment of any kind clear.

When drug testing may be permissible

There are some circumstances in which drug testing is allowed, though they are rare and very specific.

1. Safety-sensitive positions: Universal random drug testing would be acceptable in workplaces that can be shown to be extremely dangerous and where a worker’s impairment would likely result in catastrophe. Based on this definition commercial truck drivers would be considered to be in a safety-sensitive position.

2. Reasonable suspicion of impairment: If an employee appears to be obviously impaired, drug testing may be permissible, especially if they’re involved in a collision and there is reasonable suspicion that they are under the influence of drugs.

3. As part of a rehabilitation/return-to-work program: A driver with substance abuse disorder may be subject to unannounced drug testing to be carried out as part of a rehabilitation program and return-to-work program.

Unlike in the United States, pre-employment drug testing is generally not permitted in Canada, except in limited circumstances. Each Canadian province has its own legislation regarding testing for drugs. In Alberta, the courts have been less protective of individual privacy rights and have allowed drug testing in the oil and gas sector. Most companies in Ontario and British Columbia opt not to test for drugs, adhering to human rights legislation and privacy concerns.

Policies must be clear

Motor carriers must inform their drivers about the drug and alcohol policy and unlike U.S. testing programs, are required to obtain their consent before conducting any test. By working together, motor carriers and drivers can create a safe and healthy work environment for everyone involved.

Carriers should update their policies addressing drug and alcohol use at least once per year. Carriers must pay close attention to:

• Permissible testing for the jurisdictions they operate in, including if they cross the border into the United States;
• Frequent reminders for drivers on their obligations under the policies; and
• Training for managers and supervisors on detecting impairment through physical symptoms.

Key to remember: Drug testing in Canada is legal but not regulated, so carriers must exercise caution when implementing a drug testing policy. There’s a fine line between allowable testing and human rights/employee privacy violations.

Name change not (technically) required on Form I-9

When an employee has a legal name change because of marriage, divorce, or another reason, the U.S. Citizenship and Immigration Services (USCIS) does not require employers to update the Form I-9.

However, the agency does recommend that the employer note the name change in Section 3 of the form. The agency suggests that employers maintain correct information on the form.

Employers need to be sure of an employee’s identity

Employers shouldn’t simply take an employee’s word for it when it comes to a name change. The agency recommends that employers ask for proof.

Once again, the agency doesn’t require this, but it is certainly a good idea. The agency recommends that employers take steps to be reasonably assured of an employee’s identity, and this may involve asking the employee to provide documentation of the legal name change.

Keeping documentation of name change a best practice

Information about a name change is kept with the employee’s I-9.

That way if an employer’s I-9 forms are audited by a government agency, and the employee’s form is inspected, having this documentation shows the actions that were taken to verify identity.

Accepting documents with different names

An employer may also encounter name issues when an employee presents the documents needed to initially complete the Form I-9.

If an employee presents two documents with different last names, and one name matches the name the employee entered in Section 1, the employer may accept the documents.

The USCIS suggests that an employer attach a brief memo to the form that explains the reason for the different names. Any supporting documentation provided by the employee should also be attached.

The employee is not required to provide the documents explaining the name change. However, the employer is allowed to ask for other acceptable documents if there is something suspicious about the document with a different name that makes the employer question whether it is genuine.

Key to remember: An employer is not required to update an employee’s Form I-9 when the employee’s name change, but it is recommended.

What the date means

These government documents are subject to certain checks and balances, such as the following:

• OMB control number 1235‑0003 governs the collection of information from employers and employees for DOL compliance purposes.
• The June 30, 2026, date is when the latest version of the forms will be replaced by a new OMB‑approved version.

The OMB has to review the FMLA notices and certification forms every 3 years. The last time it did so, it didn’t make any material changes.

The OMB is part of the U.S. Executive Office and helps the president meet policy and budget, manage details, oversee regulatory objectives, and helps fulfill the agency’s statutory responsibilities.

Model forms optional

Employers aren’t required to use the DOL’s model forms. Many do, however, because it’s easier than creating their own forms. Using the DOL’s forms also helps ensure the notices provide enough information and the certifications don’t ask employees for information beyond what the FMLA allows.

Key to remember: The June 30, 2026, expiration date of FMLA documents is just a form‑collection deadline, not a legal cutoff for FMLA leave or certification. Employers may still use the current forms until a new version is issued.

FMLA certification basics

Employers aren’t required to use certifications, but if they do, the U.S. Department of Labor (DOL) has five different certification forms to use for various FMLA leave situations.

The forms are as follows:

1. Certification of Health Care Provider for Employee's Serious Health Condition,
2. Certification of Health Care Provider for Family Member's Serious Health Condition,
3. Certification of Qualifying Exigency for Military Family Leave,
4. Certification for Serious Injury or Illness of a Current Servicemember for Military Family Leave, and
5. Certification for Serious Injury or Illness of a Veteran for Military Family Leave.

Let’s focus on the first two, as these are the most common ones HR administrators use.

Who can fill out an FMLA certification?

The FMLA regulations describe the person who has the authority to fill out a certification as a “health care provider.” The good news is, the regulations include a lengthy list of medical professionals who fit this role.

Under the FMLA, a health care provider includes:

• A doctor of medicine or osteopathy,
• A podiatrist,
• A dentist,
• A clinical psychologist,
• An optometrist,
• A chiropractor (limited to manual manipulation of the spine as demonstrated by X-ray),
• A nurse practitioner,
• A nurse midwife,
• A clinical social worker,
• A physician assistant,
• A Christian Science practitioner, and
• Any health care provider from whom the employer or the employer's group health plan's benefits manager will accept a medical certification to substantiate a claim for benefits.

To be qualified to fill out FMLA forms, medical professionals must be authorized to practice in the state and perform within the scope of their practice. This means that the provider must be authorized to diagnose and treat physical or mental health conditions.

What about doctors in a foreign country?

If an employee or an employee's family member is visiting another country, or a family member resides in another country, and a serious health condition develops, the employer must accept a medical certification from a health care provider who practices in that country. This includes second and third opinions.

If a medical certification from a foreign health care provider is not in English, the employee may be required to provide a written translation of the certification.

Key to remember: The FMLA regulations spell out which medical professionals can fill out certification forms.

The DOL chimes in

In an interpretive opinion letter released on January 14, 2025, the U.S. Department of Labor (DOL) said that employers should treat state paid leave the same.

Employers need to keep some information in mind:

• Designating leave: When employees take leave under a state paid family or medical leave law if the leave is also covered by the FMLA, employers must designate it as FMLA leave and give the employee a designation notice, which should include the amount of leave to be counted against the employee’s FMLA leave entitlement.
• Receiving state pay: During FMLA leave, when employees receive pay from a state family or medical leave law, the FMLA “substitution” provision does not apply to the part of leave that is paid. As a result, employees may not use PTO, and employers may not require it when leave is paid by state law.
• Supplementing pay: If employees are receiving pay through state paid family or medical leave that doesn’t fully pay for their FMLA-covered leave, and employees have available PTO, employers, and employees may agree, where state law permits, that employees may use their PTO to supplement their pay under a state leave law.
• Qualifying conditions: If employees use state paid family and medical leave for reasons that don’t qualify as FMLA leave, employers may not count the leave against the employee's FMLA leave entitlement. If, for example, a state paid family leave law allows for paid leave to care for a family member with a medical condition that is not an FMLA-qualifying serious health condition or serious injury or illness, employers may not count the leave taken under such circumstances against the employee’s FMLA leave entitlement.
• Exhausting leave: If employees’ leave under a state paid family or medical leave program ends before the employees have exhausted the 12 weeks of FMLA leave, employees are still entitled to the FMLA protections. If, therefore, employees use up all the state paid leave, after that, the FMLA substitution provision would apply and employees would be able to elect, or the employer would be able to require the employee, to substitute employer-provided accrued paid leave.

Key to remember: Employers may not require employees to use their accrued paid time off when employees are receiving pay under a state paid leave law. Employees are also not allowed to do so. Employees, however, might be able to use PTO to round out their income and bring it to full pay.

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.

What is an electrolyte?

Pure water will not carry an electric current, but adding sulfuric acid creates an electrolyte solution that allows the electric current to pass. Employees may need to mix concentrated sulfuric acid with distilled (pure) water to make the electrolyte solution.

The chemical reaction of mixing sulfuric acid with water can generate heat, resulting in a violent reaction. Because of this reaction, when mixing an electrolyte solution for forklift batteries, always add acid to the water to avoid the hazard of smoking and splattering.

When transferring acid from a large container, it’s a good idea to use a siphon. It’s much easier to control, reducing the chance for spilling or splashing. Splashed acid will eat holes in cloth and skin, so wearing protective equipment during this task is essential, including gloves, long sleeves, and goggles.

Maintaining battery cells

Normal forklift operations cause water in the battery cells to evaporate. If the fluid level in the cells is low, add distilled water before charging. Never add water immediately after a charge.

When the electrolyte level is low, clean off the top of the battery. Remove the battery’s filter caps and add distilled water to the cells. Be sure that the filter caps are tightened securely after the cells are filled.

If workers are not fully trained and authorized to perform this function, they must not attempt to add fluids of any kind to batteries.

Understanding what happened

An implosion happens when the pressure inside a tank drops below the pressure outside it. When that happens, the outside air pushes in and the tank can collapse. Most people think about explosions. Fewer think about implosions. But the damage can be just as severe.

The tricky part is how this can develop during normal work. It doesn’t take a rare event and can happen during everyday tasks like:

• Draining a tank too fast without letting air flow back in;
• Cooling vapors or condensing material inside the tank;
• Steam cleaning and then cooling things down too quickly; and
• Vents that are blocked, closed, or just not sized right.

In industries like pulp and paper, chemical processing, and wastewater treatment, these situations aren’t unusual. In many cases, they’re part of day-to-day operations. That’s what makes vacuum-induced failure a real risk and a preventable one.

What OSHA expects for tank safety

While this incident puts a spotlight on an implosion hazard, OSHA’s expectations go beyond just one type of failure. The focus is on overall tank and pressure vessel safety, which includes both over-pressure and vacuum conditions.

Under the General Duty Clause, employers are required to protect workers from recognized hazards. Tank failure, whether it’s caused by pressure or vacuum, is a known risk, so OSHA expects it to be addressed. In practice, that means employers need to:

• Design for how the system actually operates, including pressure going in both directions;
• Control pressure risks with properly sized relief devices and venting systems that work when needed;
• Follow recognized engineering practices like ASME (American Society of Mechanical Engineers) and API (American Petroleum Institute) standards; and
• Keep equipment in good shape through inspection, testing, and maintenance.

Additionally, if Process Safety Management (29 CFR 1910.119) applies, expectations get more specific. Employers need to have:

• A mechanical integrity program that covers tanks and relief systems;
• Process hazard analyses that look at normal operations, abnormal conditions, and maintenance work; and
• Clear procedures and training so people know how to manage the risks.

Even if PSM doesn’t apply, the expectation doesn’t change. You still need to understand how the system can fail and make sure the right protections are in place.

Strengthening tank safety where it counts

This incident is a good reminder to take a step back and look at your organization’s overall tank and pressure vessel safety, not just one specific hazard. Strong programs come down to solid controls and making sure they hold up in day-to-day operations. Here’s where to focus your attention:

• Evaluate all pressure scenarios: Consider both over-pressure and vacuum conditions during normal, shutdown, and when things don’t go as planned;
• Verify relief and venting systems: Ensure devices are properly sized, installed, and not isolated or obstructed;
• Confirm design limits: Validate that tanks are rated for the full range of expected conditions;
• Strengthen inspection and maintenance: Regularly check vents, valves, and vessel integrity as part of a structured program; and
• Train employees on system behavior: Help operators understand how everyday actions, like emptying a tank, rinsing it out, or closing vents, can affect pressure conditions.

Key to remember: Expectation is clear, tanks must be safe under all operating conditions, not just ideal ones. That only happens when design, controls, and maintenance all line up with how the system really runs.

And the answer is… It depends

The HazCom standard says, in part, “the employer is not required to label portable containers into which hazardous chemicals are transferred from labeled containers, and which are intended only for the immediate use of the employee who performs the transfer.”

The regulations define “immediate use” to mean that “the hazardous chemical will be under the control of and used only by the person who transfers it from a labeled container and only within the work shift in which it is transferred.”

So if the situation is such that the definition of immediate use is met, no label is needed. If this isn’t the case, however, you’ll need to label the container.

What kind of labeling is needed?

All workplace HazCom labels must include the product identifier and general information regarding all of the hazards of the chemical(s) even when using the NFPA or HMIS® system. In some cases, all hazards are not addressed by a particular rating system (e.g., chronic health hazards), and therefore, hazards not addressed must be communicated by words, pictures, symbols, or a combination thereof in addition to the NFPA or HMIS® rating system.

The HazCom regulations provide a few workplace labeling options. You can use:

• The elements required under HazCom on shipped containers, with the exception of contact information — product identifier, signal word, hazard statement(s), pictogram(s), and precautionary statement(s).
• In-house labels that include the product identifier and words, pictures, symbols, or a combination of these, which provide at least general information regarding the hazards of the chemicals.
• The HMIS® III or NFPA system.

Regardless of the workplace labeling option you use for secondary containers, you must ensure that your training program instructs employees on how to use and understand the labeling systems.

Keep in mind that the purpose of a label under HazCom is to serve as an immediate visual warning of the hazards associated with the chemical. The identity of the chemical leads to the more detailed information on the safety data sheet (SDS), but the hazard warning gives immediate information to employees working with the substance about the hazards associated with exposure.

Use equipment properly

Paragraph 1910.303(b) covers examination, installation, and use of equipment. It includes a kind of a “general duty clause” that states, “Electric equipment shall be free from recognized hazards that are likely to cause death or serious physical harm to employees.”

Since electricity could cause serious harm, OSHA can cite that paragraph for a number of hazards. Citations include things like damaged insulation on wiring or exposed electrical parts of equipment motors. However, that isn’t the most frequently cited paragraph.

Sub-paragraph 1910.303(b)(2) gets cited most often. It states, “Listed or labeled equipment shall be installed and used in accordance with any instructions included in the listing or labeling.” Essentially, this tells employers to follow manufacturer instructions when using electrical equipment. OSHA uses this for violations like improperly using power strips or allowing employees to use outlets that were not correctly installed.

For related information, see our article, Five things to know before letting employees work with electricity.

Another frequently cited issue is failing to maintain access and working space around electrical equipment. Paragraph 1910.303(g)(1) requires sufficient access and space to allow safe operation and maintenance, describes specific distances, prohibits using the working space for storage, and requires guarding when live parts are exposed for inspection or service.

Wiring issues

The other commonly-cited electrical standard is 1910.305, covering wiring methods and more. These violations include issues such as outlets or switches without covers, or improperly using flexible cords (such as extension cords) where permanent wiring should be used.

One of the most-cited paragraphs is 1910.305(b)(1)(ii) which says, “Unused openings in cabinets, boxes, and fittings shall be effectively closed.” For example, if a circuit breaker panel has an unused breaker space, it must be filled with a blank. It cannot be left open, and placing tape over the empty slot is not sufficient.

Another frequently-cited paragraph is (g)(2)(iii), which says: “Flexible cords and cables shall be connected to devices and fittings so that strain relief is provided that will prevent pull from being directly transmitted to joints or terminal screws.” OSHA uses this when saws or other equipment gets power through flexible cables coming from an electrical panel.

The Bureau of Labor Statistics lists more than 2,000 injuries from exposure to electricity each year and around 150 deaths per year. Neither of the above standards specifically requires training workers on electrical safety, but employers should provide training on properly using (and not improperly using) electrical equipment and tools. For related information, see our article, What is the difference between qualified and unqualified electrical workers?

Key to remember: Electrical hazards from exposed electrical lines and improperly using equipment could be mitigated by training employees.

Letters of Interpretation

As clarified in an OSHA Letter of Interpretation (LOI) dated October 18, 1995, “When any part of the body of an entrant breaks the plane of the opening of a PRCS large enough to allow full entry, entry is considered to have occurred and a permit is required, regardless of whether there is an intent to fully enter the space.”

This definition of “entry” might seem to be too strict. Still, OSHA’s letter clarifies that there are situations where a partial entry would be hazardous: “Examples of situations where entry by only part of the body into a PRCS can expose an entrant to the possibility of injury or illness are as follows:

1. An entrant can possibly suffer a burn while reaching into a PRCS, which is so classified because it contains a thermal hazard.
2. An entrant can possibly fall into a below-grade PRCS while standing on a vertical ladder in the opening of the space, which is so classified because it contains an oxygen-deficient atmosphere.
3. An entrant can possibly become unconscious as result of his head accidentally entering a PRCS while they are reaching into a PRCS, which is so classified because it contains an oxygen deficient atmosphere.”

As another example, if the space contains a flammable or oxygen-enriched atmosphere, and if the activities during a partial entry could produce a spark or other ignition source, then a fire in the space could flash out of the opening and cause serious injuries to the employee.

OSHA’s guidance continues

This doesn’t necessarily mean you’d be fined if a permit wasn’t followed when someone reached a tank. OSHA’s guidance continues: “However, if entry by only part of the body does not expose the entrant to the possibility of injury or illness, then the violation may be considered a ‘de minimis’ violation.”

A de minimis violation is one in which a standard is violated, but the violation has no direct or immediate relationship to employee safety or health. These violations are documented but no citations are issued.

OSHA says examples of situations where entry by only part of the body into a PRCS would not expose an entrant to the possibility of injury or illness are as follows:

1. An entrant reaches through the opening of a horizontal PRCS, which is so classified only because it contains exposed live electrical parts ten feet from the opening.
2. An entrant puts his head through the opening of an overhead PRCS, which is so classified only because it contains unguarded rotating parts ten feet from the opening.

Also, consider a situation such as a worker reaching through a small grate to take a sample from a permitted space. The LOI further states, “If a part of the body were placed in an opening through which the worker could not pass into the permit-required confined space, no PRCS entry will have occurred.”

Keep in mind, however, that the employee would still need protection from any hazards involved in the task, but a permit would not be needed.

Key to remember

When any part of the body of an entrant breaks the plane of the opening of a PRCS large enough to allow full entry, entry is considered to have occurred, and a permit is required.