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Newsletter
Volume 123
February 3, 2014
Signature Training Schedules Announced
Check out the new dates and locations for the 2014 Signature Training courses at the end of the newsletter. Just announced are the 2014 Professional Applicator Training (PAT) training dates. Don't forget the two courses geared to the grain handling industry. Both the PAT and grain courses are designed to help you address key issues within our industry. Watch for the 2014 Ammonia Technician Course and Emergency Response to Agricultural Incidents Course soon.
ResponsibleAg - Update
In the weeks ahead you will be hearing more about this initiative as it approaches the one year anniversary of the West Fertilizer tragedy. A business plan has been proposed for consideration by The Fertilizer Institute (TFI) and Agricultural Retailers Association (ARA). Both organizations are expected to review and act on it in the month of February. ResponsibleAg will help ensure our industry is aware of, and complies with, the regulations that are already in place.
Tip: To get a head start in preparing for the ResponsibleAg third-party audit, complete the Comprehensive Risk Evaluation (CoRE) for your facility as soon as possible if you are an Asmark Institute client. If not, complete the Compliance Assessment Tool offered by TFI and ARA.
Reminder: Time to Post Your 300A
It's time to complete your 2013 injury and illness recordkeeping obligations by posting the Summary of Work- Related Injuries and Illnesses (OSHA Form 300A). OSHA requires that the notice be displayed from February 1st to April 30th of each year in a conspicuous place where employee notices are customarily posted. Businesses with no injuries or illnesses for the year must still post the form. A company official must certify the information in Form 300A was examined and is believed to be correct and complete. Click here to access the form and instructions.
SARA: Don't Let the March 1st Deadline Slip Up on You
As a reminder worth mentioning, SARA Tier II submissions are due on March 1st. These are annual requirements that most retailers are familiar with; however, the penalties have become quite severe for non-compliance. We believe it is prudent to remind our clients of the upcoming deadline. Each of our clients required to submit a SARA Tier II Report will have received either a Master Report to be used by the facility personnel in reporting and certifying the data electronically as mandated by their state,.... or the packet of traditional hard copies to be signed, certified and submitted to their State Emergency Response Commission, Local Emergency Planning Commission and Fire Department. Don't forget to follow your state's instructions to pay any applicable fees.
Pesticide-Production Report Update
Reminder: Asmark Institute submits and documents receipt of the Pesticide Production Report by U.S. EPA for each of our clients. All clients' reports are currently out for signature and should be returned as soon as possible. Nick Clements is responsible for this process. Plans are to file all final reports on schedule to be received by U.S. EPA by Saturday, March 1st.
Electronic Service Program (ESP)
More and more of our clients are electing to use ESP to receive their correspondence electronically. With each new postal increase, ESP becomes more attractive. If you are already an ESP user, please make sure you are checking and opening your notifications as they contain time-sensitive reports - especially this time of the year. Starting July 1st we will implement a new service reminding any ESP-users that may have forgotten to open and address their notification(s). This will help serve as a prompt to ensure our clients don't miss important deadlines.
Environmental Respect Awards: March 10th Deadline to Enter
An Environmental Respect Award is not a one-time honor. It is about carrying the flag, being advocates for agriculture and pledging a lifetime commitment. March 10th is the deadline to pledge your commitment. Enter online at www.environmentalrespect.com or download a printable entry form. Questions? Call the Environmental Respect Awards office at 440-602-9131.
Not Like Any Ag Retailer I've Ever Seen...
Executive Order to Improve Safety
In response to the West, Texas accident, President Obama issued an Executive Order, Improving Chemical Facility Safety and Security, requiring OSHA to partner with DHS, EPA and other federal agencies to host a series of public listening sessions. The sessions are designed to solicit comments from stakeholders to reduce safety and security risks in the production and storage of potentially harmful chemicals. More than 700 individuals have attended the sessions so far, which have been held in Texas City, TX, Washington, DC, Springfield, IL, Orlando, FL and Sacramento and Los Angeles, CA.
We couldn't help notice the visual used by the agencies in advertising the listening sessions. It's a graphic that portrays a manufacturing facility, which should send a message to our industry. They don't understand what we do at a retail facility - there is no understanding within the agencies of anything between a farmer and a manufacturer. This will ultimately prove to be a huge problem for the retail ag industry.
OSHA put out a request for information seeking public comment on potential revisions to its Process Safety Management (PSM) standard and related standards, as well as other policy options to prevent major chemical incidents. The public will have until March 10, 2014 to submit written comments. We encourage you to become involved with your State and/or National agribusiness organization to provide effective comments.
Chemical Safety & Drinking Water Protection Act Introduced as a Result of WV Spill
Senator Joe Manchin (D-WV.), joined by Senators Barbara Boxer (D-CA) and John Rockefeller (D-WV), introduced the Chemical Safety and Drinking Water Protection Act. The bill's introduction comes in response to the January 9th spill of approximately 7,500 gallons of a coal-related chemical (crude 4 methylcyclohexane methanol (MCHM)) into the Elk River in West Virginia. The spill contaminated the drinking water supply affecting approximately 300,000 residents. The release occurred from a faulty containment structure. It appears the legislation, if passed, will include:
  • Periodic inspections of above-ground chemical storage facilities;
  • State-approved emergency response plans
  • A mechanism allowing states to recoup costs incurred from responding to emergencies; and,
  • Additional requirements ensuring drinking water systems are prepared to respond to emergencies.
In the legislation appears to be a kneejerk reaction to the WV incident as the proposed legislation is chock full of vague language. The term "chemical storage facility" is left undefined in the legislation as is the list of regulated chemicals and the requirement that covered facilities must specify financial assurance requirements for the facilities (through proof of insurance, bond or other similar instrument).
The Fertilizer Institute (TFI) has determined this legislation would apply to facilities that hold fertilizer materials that, if released, pose a risk of harm to a public drinking water supply. Agricultural chemicals could also be expected to make the final regulated list. So, proximity to any water body is not relevant, only to a public water supply (like a drinking water body).
TFI is working to develop talking points on this legislation and the potential impacts it could have on the fertilizer industry. You can expect TFI, ARA and CropLife to work with other industry organizations to educate members of congress on this issue. This is legislation that you should monitor closely.
OSHA to "Clarify" Defining Small Farms as "Grain Dealers"
Despite critics calling it a "power grab without legal basis" and the agency saying it's required by law to inspect certain grain-related activities whether they're on-farm or not, OSHA recently said it's moving to clarify its actions in trying to regulate small farms as "commercial grain dealers." Senator Mike Johanns (R-NE) first exposed what he calls OSHA's disdain for a 35-year-old federal policy enshrined annually in appropriations law that keeps OSHA inspectors off small farming operations, defined as those with 10 or fewer employees. The agency, Johanns said, ignored congressional direction and simply tried to redefine farming operations with separate commercial identities to permit OSHA inspections. He included language in the recently enacted FY2014 omnibus appropriations bill upholding the small farm exemption, but encouraging OSHA to meet with USDA "before moving forward with any attempt to redefine and regulate post-harvest activities." A USDA meeting will be set up "very quickly," OSHA officials said. OSHA has said it's trying to make the regulations clearer for both farmers and its inspectors. OSHA said the agency is motivated by safety, citing a string of storage accidents in 2010 that lead to 57 incidents and 31 deaths. In 2011, the agency announced its intent to focus on grain handling, beginning what it called "a very aggressive campaign" to prevent grain handling accidents. Further, the agency said it's never been its policy to inspect grain storage that is "intrinsic" to a farming operation, and it is unaware of any inspector ever "going to the wrong places" to enforce grain storage rules.
Interagency Ammonium Nitrate Recommendations Expected in May
An interagency chemical safety working group will deliver a plan on updating regulations and policies to the White House by the end of May, government officials said during a January 14th public hearing. David Michaels, Assistant Secretary of OSHA, said at the hearing that the working group has fulfilled some of the executive order's directives in the form of internal documents that can't be shared with the public. The working group doesn't see the executive order's dated milestones as end dates, because what it produces in response are living documents, Michaels said.
The Obama administration formed the chemical safety working group with its August 2013 executive order in response to the catastrophic April 2013 ammonium nitrate explosion in West, Texas. OSHA is leading the working group's efforts to modernize chemical safety policies and regulations. The working group issued a status report January 3rd with some initial options to modernize federal policies, regulations and standards on ammonium nitrate and other hazardous chemicals. The group's plan is expected to lead to more deliberative rulemaking.
Portions of CDL/Medical Card Merger Delayed
DOT recently published a final rule delaying "portions" of the rule tying the Commercial Driver's License (CDL) to the driver's medical qualifications. Non-excepted, interstate CDL holders must carry a copy of the medical card while on duty until January 30, 2015 - even if they have submitted it to the state and it has been entered onto their driving record (MVR). All CDL drivers must continue to comply with state requirements for submitting the required documentation to the state's licensing office, including subsequent renewals of their medical cards, or face a downgraded CDL.
The employer must verify the medical certification status, and subsequently the CDL status, via the MVR if the report shows medical certification information (that is; the driver submitted it, and the state posted it). This has been the case since January 30, 2012. If the state of licensing has not yet collected and/or entered the CDL driver's information onto the driver's record, the motor carrier must continue to use the medical card in the DQ file as proof of qualification for non-excepted, interstate CDL drivers. As the state completes implementation (that is; the driver submitted it, and the state posted it to the MVR), the motor carrier would be responsible for requesting the MVR from the state to verify the driver's CDL and medical status.
No later than January 30, 2015, dependent upon the state's implementation schedule, all motor carriers must have MVRs for all non-excepted, interstate CDL drivers showing their medical status. Drivers and motor carriers will need to contact their state licensing agency if they have questions about their state's process for collecting and posting CDL and medical card information.
Injury and Illness Recordkeeping Proposal Draws Debate
According to OSHA, the proposed requirements are not drastically different from the current requirements where data is collected on injuries and illnesses from approximately 80,000 employers with 20+ employees. OSHA recently held a public meeting in Washington, D.C. to give stakeholders the opportunity to provide oral remarks on the proposed rule. Representatives from businesses and the U.S. Chamber of Commerce publicly begged to differ with OSHA's opinion. According to OSHA, under the proposed requirements for electronic reporting, approximately 440,000 small companies (20+ employees) will be required to send in their annual summary of injuries and illnesses. As for larger companies (250+ employees), approximately 38,000 will need to submit injury and illness data on a quarterly basis.
Although the proposed amendment does not add any new requirement to keep records, it does modify an employer's obligation to submit these to OSHA. OSHA says that these changes are necessary so that the government and researchers will have better access to data to encourage earlier abatement of hazards and improved programs to reduce workplace hazards and prevent injuries, illnesses and fatalities. OSHA also says that currently they only see 20 percent of the injury and illness data provided by employers. Under the new system, they will see 50 percent of the data.
However, from the perspective of business representatives who attended the meeting, a major concern lies in the area of posting injury and illness data online. Many business representatives believe that public access to this data will encourage employers to underreport as a result of the potential negative impact on their businesses' reputations. They are also concerned with liability. Business representatives fear that posting injury and illness data online will open the business up to the pursuit of trial lawyers and unions. Another concern of business representatives revolves around the costs associated with compliance, which can hurt business and job creation - especially the hiring of temporary workers.
The U.S. Chamber of Commerce expressed major concerns over the proposed rule. According to representatives, the chamber does not believe that OSHA has authorization under any statues to create this type of database on employers. In addition, representatives believe that there is a danger of proprietary information being shared through data collected on the number of hours worked and the number of employees at a company. They also stated that the proposed requirements are drastically different from the current system.
EPA Seeks Comments on Evaluating Pesticide Spray Drift
EPA has announced two draft guidance documents are available for public comment. These documents describe how off-site spray drift will be evaluated for ecological and human health risk assessments for pesticides. EPA is seeking to strengthen its protections for people and the environment from exposure to pesticides that drift from fields to nearby areas, including homes, schools and playgrounds. These new approaches add to these routine assessments and will allow the Agency to estimate off-site drift, another step to protect communities living near fields where crops are grown from these exposures.
The January 29, 2014, Federal Register Notice specifically seeks public input on these approaches that include:
  • A policy for conducting human health risk assessments associated with the potential for exposure from off-site drift during pesticide applications and
  • An updated method for estimating environmental exposures associated with spray drift.
The public comment period will close on March 31, 2014. Following the public comment period, EPA will analyze the comments, make appropriate modifications to these policies and finalize them. The policies will then be used in pesticide risk assessment. To make comments, paste the docket number (EPA-HQ-OPP-2013-0676-0001) into the search document area at www.regulations.gov.
SDS: What Happens When the Manufacturer Goes Out of Business
In a Letter of Interpretation dated January 31, 2013, OSHA answered an employer's question with regard to his responsibilities under the revised provisions of the Hazard Communication standard when a product still exists in a facility and the manufacturer or importer has gone out of business. Specifically, the employer asked if his company must classify and generate a safety data sheet since the chemical manufacturer is no longer in business.
In response, OSHA said the responsibilities of the employer have not changed under the 2012 Hazard Communication Standard. Employers must have and maintain SDSs and make them available to their employees. In the scenario the employer raised where the manufacturer has gone out of business, OSHA stated that the employer's responsibility is to maintain the MSDS for that product, not to create a new SDS. OSHA will not cite companies for maintaining MSDSs when these products were received prior to June 1, 2015. However, OSHA still requires employers to maintain the most recently received version of the MSDS or SDS. Therefore, when an SDS is received, it must replace the MSDS for the corresponding hazardous chemical. Also, when more current revisions of the MSDS or SDS are received, the employer must replace the older versions of the MSDS or SDS.
OSHA went on to say that although an employer is under no obligation to create an SDS for a hazardous chemical in situations where the manufacturer or importer has gone out of business, if it chooses to generate a new SDS, the employer will become the responsible party for its content.
Missouri Company Cited for Worker Fall/Fatality
A Missouri agricultural company has been cited for 13 serious safety violations by OSHA after a worker was fatally injured in an August 26th fall at their milling plant. The worker landed on a first floor concrete area after falling about 40 feet from a man lift used to transport materials in the facility. The company was cited for 13 serious violations, including: failing to guard open-sided floors throughout the plant with varying fall distances up to 20 feet, inadequate footing space on industrial ladders creating fall distances up to 125 feet, failing to inspect man lifts every 30 days, failing to have guarded belts and pulleys on machinery, and failing to use proper connectors, thus exposing workers to electrical conductors on motors. Other violations included failing to have two exit doors, obstructed exits and unmarked and poorly lighted exit routes. The company also received a citation for failing to have an alarm system to warn workers of fires and other emergencies. A serious violation occurs when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known. Proposed fines total $91,000.
EPA Announces Region 4 Administrator
U.S. EPA Administrator Gina McCarthy today announced President Barack Obama's selection of Heather McTeer Toney as regional administrator for EPA's regional office in Atlanta. EPA Region 4 includes Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, Tennessee and six tribal nations. Ms. McTeer Toney was the first African-American and first female to serve as the Mayor of Greenville, Mississippi, holding that post from 2004-2012. She joins EPA from Mississippi Valley State University, where she is the Executive Director of the Center for Excellence in Student Learning. She is also the Principal Attorney at Heather McTeer, PLLC.
ASABE Seeks Comments on New Ammonia Safety Standard
American Society of Agricultural and Biological Engineers (ASABE) is seeking comments on draft standards for anhydrous ammonia application equipment safety. Click here to download the draft, comment form and instructions. The draft standards, developed with input from equipment manufacturers, dealers and applicators, covers implements of husbandry, as well as tanks, wagons, toolbars, hitches, hoses and personal protective equipment. The document is focused on operator and service personnel safety, best practices and owner/operator manual requirements. Comments will be accepted until February 28th.
Note: Your review of this new standard is encouraged as early comments have indicated it contains language that may not be consistent with existing standards. While the intent is good, the wording and ease of understanding may need to be improved and only your review and comments can affect this change.
National Labor Relations Board Backs Down From Supreme Court
The National Labor Relations Board (NLRB) has decided against asking the Supreme Court to hear a case over its rule to require employers to post notices informing workers of their union rights. The NLRB rule has been overturned by two federal appeals court decisions.
Illinois Supreme Court Hands Down Hartney Decision
When taxable retail sales occur between an Illinois retailer and an Illinois consumer, the question of which local tax rate applies arises. The Illinois regulation covering the subject explains that since the single most important factor of a sale is the acceptance of the purchase order by the seller (retailer); the rate, in effect where the order is accepted, applies to the sale.
Lights Out for Incandescent Bulbs
January 1st signaled the end of the incandescent light bulb all across the US. In 2007, Congress passed the Energy Information and Security Act that included deadlines for the manufacture of the familiar light bulb. Beginning in 2012, the 100-watt bulb was phased out, followed by the 75-watt bulbs in 2013. This year's final phase eliminated the 40-watt and 60-watt bulbs. Now it's on to CFLs and LEDs.
Most Quotable: "The best thing about the future is that it comes one day at a time." - Abraham Lincoln the 16th president of the United States.
2014 Asmark Institute, Inc. This information is believed to be reliable by the Asmark Institute, however, because of constantly changing government regulations, interpretations and applicability or the possibility of human, mechanical or computer error, the Asmark Institute does not guarantee the information as suitable for any particular purpose.
Signature Training Schedules Announced
Check out the new dates and locations for the 2014 Signature Training courses at the end of the newsletter. Just announced are the 2014 Professional Applicator Training (PAT) training dates. Don't forget the two courses geared to the grain handling industry. Both the PAT and grain courses are designed to help you address key issues within our industry. Watch for the 2014 Ammonia Technician Course and Emergency Response to Agricultural Incidents Course soon.
ResponsibleAg - Update
In the weeks ahead you will be hearing more about this initiative as it approaches the one year anniversary of the West Fertilizer tragedy. A business plan has been proposed for consideration by The Fertilizer Institute (TFI) and Agricultural Retailers Association (ARA). Both organizations are expected to review and act on it in the month of February. ResponsibleAg will help ensure our industry is aware of, and complies with, the regulations that are already in place.
Tip: To get a head start in preparing for the ResponsibleAg third-party audit, complete the Comprehensive Risk Evaluation (CoRE) for your facility as soon as possible if you are an Asmark Institute client. If not, complete the Compliance Assessment Tool offered by TFI and ARA.
Reminder: Time to Post Your 300A
It's time to complete your 2013 injury and illness recordkeeping obligations by posting the Summary of Work- Related Injuries and Illnesses (OSHA Form 300A). OSHA requires that the notice be displayed from February 1st to April 30th of each year in a conspicuous place where employee notices are customarily posted. Businesses with no injuries or illnesses for the year must still post the form. A company official must certify the information in Form 300A was examined and is believed to be correct and complete. Click here to access the form and instructions.
SARA: Don't Let the March 1st Deadline Slip Up on You
As a reminder worth mentioning, SARA Tier II submissions are due on March 1st. These are annual requirements that most retailers are familiar with; however, the penalties have become quite severe for non-compliance. We believe it is prudent to remind our clients of the upcoming deadline. Each of our clients required to submit a SARA Tier II Report will have received either a Master Report to be used by the facility personnel in reporting and certifying the data electronically as mandated by their state,.... or the packet of traditional hard copies to be signed, certified and submitted to their State Emergency Response Commission, Local Emergency Planning Commission and Fire Department. Don't forget to follow your state's instructions to pay any applicable fees.
Pesticide-Production Report Update
Reminder: Asmark Institute submits and documents receipt of the Pesticide Production Report by U.S. EPA for each of our clients. All clients' reports are currently out for signature and should be returned as soon as possible. Nick Clements is responsible for this process. Plans are to file all final reports on schedule to be received by U.S. EPA by Saturday, March 1st.
Electronic Service Program (ESP)
More and more of our clients are electing to use ESP to receive their correspondence electronically. With each new postal increase, ESP becomes more attractive. If you are already an ESP user, please make sure you are checking and opening your notifications as they contain time-sensitive reports - especially this time of the year. Starting July 1st we will implement a new service reminding any ESP-users that may have forgotten to open and address their notification(s). This will help serve as a prompt to ensure our clients don't miss important deadlines.
Environmental Respect Awards: March 10th Deadline to Enter
An Environmental Respect Award is not a one-time honor. It is about carrying the flag, being advocates for agriculture and pledging a lifetime commitment. March 10th is the deadline to pledge your commitment. Enter online at www.environmentalrespect.com or download a printable entry form. Questions? Call the Environmental Respect Awards office at 440-602-9131.
Not Like Any Ag Retailer I've Ever Seen...
Executive Order to Improve Safety
In response to the West, Texas accident, President Obama issued an Executive Order, Improving Chemical Facility Safety and Security, requiring OSHA to partner with DHS, EPA and other federal agencies to host a series of public listening sessions. The sessions are designed to solicit comments from stakeholders to reduce safety and security risks in the production and storage of potentially harmful chemicals. More than 700 individuals have attended the sessions so far, which have been held in Texas City, TX, Washington, DC, Springfield, IL, Orlando, FL and Sacramento and Los Angeles, CA.
We couldn't help notice the visual used by the agencies in advertising the listening sessions. It's a graphic that portrays a manufacturing facility, which should send a message to our industry. They don't understand what we do at a retail facility - there is no understanding within the agencies of anything between a farmer and a manufacturer. This will ultimately prove to be a huge problem for the retail ag industry.
OSHA put out a request for information seeking public comment on potential revisions to its Process Safety Management (PSM) standard and related standards, as well as other policy options to prevent major chemical incidents. The public will have until March 10, 2014 to submit written comments. We encourage you to become involved with your State and/or National agribusiness organization to provide effective comments.
Chemical Safety & Drinking Water Protection Act Introduced as a Result of WV Spill
Senator Joe Manchin (D-WV.), joined by Senators Barbara Boxer (D-CA) and John Rockefeller (D-WV), introduced the Chemical Safety and Drinking Water Protection Act. The bill's introduction comes in response to the January 9th spill of approximately 7,500 gallons of a coal-related chemical (crude 4 methylcyclohexane methanol (MCHM)) into the Elk River in West Virginia. The spill contaminated the drinking water supply affecting approximately 300,000 residents. The release occurred from a faulty containment structure. It appears the legislation, if passed, will include:
  • Periodic inspections of above-ground chemical storage facilities;
  • State-approved emergency response plans
  • A mechanism allowing states to recoup costs incurred from responding to emergencies; and,
  • Additional requirements ensuring drinking water systems are prepared to respond to emergencies.
In the legislation appears to be a kneejerk reaction to the WV incident as the proposed legislation is chock full of vague language. The term "chemical storage facility" is left undefined in the legislation as is the list of regulated chemicals and the requirement that covered facilities must specify financial assurance requirements for the facilities (through proof of insurance, bond or other similar instrument).
The Fertilizer Institute (TFI) has determined this legislation would apply to facilities that hold fertilizer materials that, if released, pose a risk of harm to a public drinking water supply. Agricultural chemicals could also be expected to make the final regulated list. So, proximity to any water body is not relevant, only to a public water supply (like a drinking water body).
TFI is working to develop talking points on this legislation and the potential impacts it could have on the fertilizer industry. You can expect TFI, ARA and CropLife to work with other industry organizations to educate members of congress on this issue. This is legislation that you should monitor closely.
OSHA to "Clarify" Defining Small Farms as "Grain Dealers"
Despite critics calling it a "power grab without legal basis" and the agency saying it's required by law to inspect certain grain-related activities whether they're on-farm or not, OSHA recently said it's moving to clarify its actions in trying to regulate small farms as "commercial grain dealers." Senator Mike Johanns (R-NE) first exposed what he calls OSHA's disdain for a 35-year-old federal policy enshrined annually in appropriations law that keeps OSHA inspectors off small farming operations, defined as those with 10 or fewer employees. The agency, Johanns said, ignored congressional direction and simply tried to redefine farming operations with separate commercial identities to permit OSHA inspections. He included language in the recently enacted FY2014 omnibus appropriations bill upholding the small farm exemption, but encouraging OSHA to meet with USDA "before moving forward with any attempt to redefine and regulate post-harvest activities." A USDA meeting will be set up "very quickly," OSHA officials said. OSHA has said it's trying to make the regulations clearer for both farmers and its inspectors. OSHA said the agency is motivated by safety, citing a string of storage accidents in 2010 that lead to 57 incidents and 31 deaths. In 2011, the agency announced its intent to focus on grain handling, beginning what it called "a very aggressive campaign" to prevent grain handling accidents. Further, the agency said it's never been its policy to inspect grain storage that is "intrinsic" to a farming operation, and it is unaware of any inspector ever "going to the wrong places" to enforce grain storage rules.
Interagency Ammonium Nitrate Recommendations Expected in May
An interagency chemical safety working group will deliver a plan on updating regulations and policies to the White House by the end of May, government officials said during a January 14th public hearing. David Michaels, Assistant Secretary of OSHA, said at the hearing that the working group has fulfilled some of the executive order's directives in the form of internal documents that can't be shared with the public. The working group doesn't see the executive order's dated milestones as end dates, because what it produces in response are living documents, Michaels said.
The Obama administration formed the chemical safety working group with its August 2013 executive order in response to the catastrophic April 2013 ammonium nitrate explosion in West, Texas. OSHA is leading the working group's efforts to modernize chemical safety policies and regulations. The working group issued a status report January 3rd with some initial options to modernize federal policies, regulations and standards on ammonium nitrate and other hazardous chemicals. The group's plan is expected to lead to more deliberative rulemaking.
Portions of CDL/Medical Card Merger Delayed
DOT recently published a final rule delaying "portions" of the rule tying the Commercial Driver's License (CDL) to the driver's medical qualifications. Non-excepted, interstate CDL holders must carry a copy of the medical card while on duty until January 30, 2015 - even if they have submitted it to the state and it has been entered onto their driving record (MVR). All CDL drivers must continue to comply with state requirements for submitting the required documentation to the state's licensing office, including subsequent renewals of their medical cards, or face a downgraded CDL.
The employer must verify the medical certification status, and subsequently the CDL status, via the MVR if the report shows medical certification information (that is; the driver submitted it, and the state posted it). This has been the case since January 30, 2012. If the state of licensing has not yet collected and/or entered the CDL driver's information onto the driver's record, the motor carrier must continue to use the medical card in the DQ file as proof of qualification for non-excepted, interstate CDL drivers. As the state completes implementation (that is; the driver submitted it, and the state posted it to the MVR), the motor carrier would be responsible for requesting the MVR from the state to verify the driver's CDL and medical status.
No later than January 30, 2015, dependent upon the state's implementation schedule, all motor carriers must have MVRs for all non-excepted, interstate CDL drivers showing their medical status. Drivers and motor carriers will need to contact their state licensing agency if they have questions about their state's process for collecting and posting CDL and medical card information.
Injury and Illness Recordkeeping Proposal Draws Debate
According to OSHA, the proposed requirements are not drastically different from the current requirements where data is collected on injuries and illnesses from approximately 80,000 employers with 20+ employees. OSHA recently held a public meeting in Washington, D.C. to give stakeholders the opportunity to provide oral remarks on the proposed rule. Representatives from businesses and the U.S. Chamber of Commerce publicly begged to differ with OSHA's opinion. According to OSHA, under the proposed requirements for electronic reporting, approximately 440,000 small companies (20+ employees) will be required to send in their annual summary of injuries and illnesses. As for larger companies (250+ employees), approximately 38,000 will need to submit injury and illness data on a quarterly basis.
Although the proposed amendment does not add any new requirement to keep records, it does modify an employer's obligation to submit these to OSHA. OSHA says that these changes are necessary so that the government and researchers will have better access to data to encourage earlier abatement of hazards and improved programs to reduce workplace hazards and prevent injuries, illnesses and fatalities. OSHA also says that currently they only see 20 percent of the injury and illness data provided by employers. Under the new system, they will see 50 percent of the data.
However, from the perspective of business representatives who attended the meeting, a major concern lies in the area of posting injury and illness data online. Many business representatives believe that public access to this data will encourage employers to underreport as a result of the potential negative impact on their businesses' reputations. They are also concerned with liability. Business representatives fear that posting injury and illness data online will open the business up to the pursuit of trial lawyers and unions. Another concern of business representatives revolves around the costs associated with compliance, which can hurt business and job creation - especially the hiring of temporary workers.
The U.S. Chamber of Commerce expressed major concerns over the proposed rule. According to representatives, the chamber does not believe that OSHA has authorization under any statues to create this type of database on employers. In addition, representatives believe that there is a danger of proprietary information being shared through data collected on the number of hours worked and the number of employees at a company. They also stated that the proposed requirements are drastically different from the current system.
EPA Seeks Comments on Evaluating Pesticide Spray Drift
EPA has announced two draft guidance documents are available for public comment. These documents describe how off-site spray drift will be evaluated for ecological and human health risk assessments for pesticides. EPA is seeking to strengthen its protections for people and the environment from exposure to pesticides that drift from fields to nearby areas, including homes, schools and playgrounds. These new approaches add to these routine assessments and will allow the Agency to estimate off-site drift, another step to protect communities living near fields where crops are grown from these exposures.
The January 29, 2014, Federal Register Notice specifically seeks public input on these approaches that include:
  • A policy for conducting human health risk assessments associated with the potential for exposure from off-site drift during pesticide applications and
  • An updated method for estimating environmental exposures associated with spray drift.
The public comment period will close on March 31, 2014. Following the public comment period, EPA will analyze the comments, make appropriate modifications to these policies and finalize them. The policies will then be used in pesticide risk assessment. To make comments, paste the docket number (EPA-HQ-OPP-2013-0676-0001) into the search document area at www.regulations.gov.
SDS: What Happens When the Manufacturer Goes Out of Business
In a Letter of Interpretation dated January 31, 2013, OSHA answered an employer's question with regard to his responsibilities under the revised provisions of the Hazard Communication standard when a product still exists in a facility and the manufacturer or importer has gone out of business. Specifically, the employer asked if his company must classify and generate a safety data sheet since the chemical manufacturer is no longer in business.
In response, OSHA said the responsibilities of the employer have not changed under the 2012 Hazard Communication Standard. Employers must have and maintain SDSs and make them available to their employees. In the scenario the employer raised where the manufacturer has gone out of business, OSHA stated that the employer's responsibility is to maintain the MSDS for that product, not to create a new SDS. OSHA will not cite companies for maintaining MSDSs when these products were received prior to June 1, 2015. However, OSHA still requires employers to maintain the most recently received version of the MSDS or SDS. Therefore, when an SDS is received, it must replace the MSDS for the corresponding hazardous chemical. Also, when more current revisions of the MSDS or SDS are received, the employer must replace the older versions of the MSDS or SDS.
OSHA went on to say that although an employer is under no obligation to create an SDS for a hazardous chemical in situations where the manufacturer or importer has gone out of business, if it chooses to generate a new SDS, the employer will become the responsible party for its content.
Missouri Company Cited for Worker Fall/Fatality
A Missouri agricultural company has been cited for 13 serious safety violations by OSHA after a worker was fatally injured in an August 26th fall at their milling plant. The worker landed on a first floor concrete area after falling about 40 feet from a man lift used to transport materials in the facility. The company was cited for 13 serious violations, including: failing to guard open-sided floors throughout the plant with varying fall distances up to 20 feet, inadequate footing space on industrial ladders creating fall distances up to 125 feet, failing to inspect man lifts every 30 days, failing to have guarded belts and pulleys on machinery, and failing to use proper connectors, thus exposing workers to electrical conductors on motors. Other violations included failing to have two exit doors, obstructed exits and unmarked and poorly lighted exit routes. The company also received a citation for failing to have an alarm system to warn workers of fires and other emergencies. A serious violation occurs when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known. Proposed fines total $91,000.
EPA Announces Region 4 Administrator
U.S. EPA Administrator Gina McCarthy today announced President Barack Obama's selection of Heather McTeer Toney as regional administrator for EPA's regional office in Atlanta. EPA Region 4 includes Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, Tennessee and six tribal nations. Ms. McTeer Toney was the first African-American and first female to serve as the Mayor of Greenville, Mississippi, holding that post from 2004-2012. She joins EPA from Mississippi Valley State University, where she is the Executive Director of the Center for Excellence in Student Learning. She is also the Principal Attorney at Heather McTeer, PLLC.
ASABE Seeks Comments on New Ammonia Safety Standard
American Society of Agricultural and Biological Engineers (ASABE) is seeking comments on draft standards for anhydrous ammonia application equipment safety. Click here to download the draft, comment form and instructions. The draft standards, developed with input from equipment manufacturers, dealers and applicators, covers implements of husbandry, as well as tanks, wagons, toolbars, hitches, hoses and personal protective equipment. The document is focused on operator and service personnel safety, best practices and owner/operator manual requirements. Comments will be accepted until February 28th.
Note: Your review of this new standard is encouraged as early comments have indicated it contains language that may not be consistent with existing standards. While the intent is good, the wording and ease of understanding may need to be improved and only your review and comments can affect this change.
National Labor Relations Board Backs Down From Supreme Court
The National Labor Relations Board (NLRB) has decided against asking the Supreme Court to hear a case over its rule to require employers to post notices informing workers of their union rights. The NLRB rule has been overturned by two federal appeals court decisions.
Illinois Supreme Court Hands Down Hartney Decision
When taxable retail sales occur between an Illinois retailer and an Illinois consumer, the question of which local tax rate applies arises. The Illinois regulation covering the subject explains that since the single most important factor of a sale is the acceptance of the purchase order by the seller (retailer); the rate, in effect where the order is accepted, applies to the sale.
Lights Out for Incandescent Bulbs
January 1st signaled the end of the incandescent light bulb all across the US. In 2007, Congress passed the Energy Information and Security Act that included deadlines for the manufacture of the familiar light bulb. Beginning in 2012, the 100-watt bulb was phased out, followed by the 75-watt bulbs in 2013. This year's final phase eliminated the 40-watt and 60-watt bulbs. Now it's on to CFLs and LEDs.
Most Quotable: "The best thing about the future is that it comes one day at a time." - Abraham Lincoln the 16th president of the United States.
2014 Asmark Institute, Inc. This information is believed to be reliable by the Asmark Institute, however, because of constantly changing government regulations, interpretations and applicability or the possibility of human, mechanical or computer error, the Asmark Institute does not guarantee the information as suitable for any particular purpose.