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Newsletter
Volume 127
June 2, 2014
Spotlight: 5-Year RMP Updates in Full Swing
Work on the 5-year RMP updates due on June 21, 2014 is progressing well and on schedule. Dustin Warder manages the RMP Program for the Asmark Institute. Dustin reports the updates have been shipped to facility management for review and return to us via Priority Mail. Each facility received a draft copy of their RMP to review and proof about 2 weeks ago. Your signature will be required for proof approval. Beginning June 10th, the certifying official for each RMP facility will need to login to the CDX website to submit their updated RMP to EPA. As always, we will document EPA's receipt of your RMP and keep the documentation on file. It will be important to watch your E-mail, open it and follow the instructions. Please contact Dustin at 270-926-4600, Ext 203 if you have questions on your RMP update.
Tennessee Farmers Cooperative Leads AN Tour
Tennessee Farmers Cooperative
Front Row (Left to right): Jeff Wanko, Process Safety Engineer, Directorate of Enforcement Programs, OSHA; Drew Landerman, TFC, David Wulf, Director, Infrastructure Security Compliance Division, Office of Infrastructure Protection, DHS; Ann Hunziker, DHS; Patti Downs, Industrial Hygienist, Office of Technological Feasibility, Directorate of Standards & Guidance, OSHA; Clark Mica, TFI and Michael Kennedy, ARA.
Back Row (Left to right): Rob Jones, Dickson Farmers Co-op, Bryan Lincoln, Economist, Office of Regulatory Analysis, Directorate of Standards & Guidance, OSHA; Paul Sullivan, Manager, Dickson Farmers Co-op; Randy Crowell, TFC; Steve Spurlin, U.S. EPA Region 4, Emergency Response Section; David Chicca, Chemical Engineer, Office of Engineering Safety, Directorate of Standards and Guidance, OSHA; Chris Jahn, TFI; David Moss, TFC and Francis Sander, Dickson Farmers Co-op.
On May 7th, Tennessee Farmers Cooperative (TFC) in conjunction with The Fertilizer Institute (TFI) hosted members of President Obama's Executive Order Working Group for a tour of two facilities that store and handle bulk fertilizer grade ammonium nitrate (AN). The tour was very successful in providing federal regulators with an opportunity to see first-hand and learn how these facilities operate safely and securely. The timing of the tour was critical as the working group is currently drafting a report to President Obama, which will include the recommendations to update and modernize current safety and security regulations at chemical facilities, including fertilizer retail facilities that store and handle AN. Their report was due to President Obama by the end of May.
The group was provided with an overview of regulatory requirements and safety and security best management practices that ensure products are stored and handled safely and securely. The first stop for the group was the ADI river terminal just outside Nashville, TN with a warehouse constructed of concrete and a wooden roof. The second stop was Dickson Farmers Co-op, a retail fertilizer facility in Dickson, TN with an all-wood structure, where General Manager Paul Sullivan and Fertilizer Plant Manager Francis Sander led the tour of the facility. Dickson Fire Marshal Robby Street was invited to discuss how the Co-op works with local first responders to prepare for a potential emergency. There was a good discussion about why wood construction is not a concern. "Wood buildings have been a focus of the federal agencies, particularly in regard to whether it's safe to store ammonium nitrate in these facilities," says Clark Mica, Vice President of Government Relations for TFI. "A majority of the tour participants had never actually been to a fertilizer retail facility that handles ammonium nitrate. We wanted to provide the regulators with an opportunity to see first-hand that fertilizer retailers can and do take the necessary steps to ensure safe handling and storage of ammonium nitrate."
Both TFC representatives and the Fire Marshal explained to the Working Group that if current regulations regarding the safe storage and handling of AN are followed, the likelihood of another West, Texas explosion occurring is minimal. TFC and the Fire Marshal explained to the Working Group that the key to preventing another accident from occurring is to ensure that the building has proper ventilation that allows for the heat to rise outside of the building and prevent an "oven effect" from occurring. Also, the group talked about the importance of maintaining a minimum distance of 30 feet or having a fire wall between the AN and any combustibles, preventing a significant heat source from being present. "The regulatory world, the media and the public are focusing on ammonium nitrate, and they're scared of it — more than they should be," says Randy Crowell, Director of Environment Health and Safety for TFC. "It's a safe product that behaves predictably when managed properly. Those outside our industry don't understand the logistics or how we handle it, so we're working to make it more acceptable."
Thanks to Randy Crowell with TFC and Clark Mica with TFI for organizing and planning this unique tour. The TFC facilities were chosen by TFI as "good examples" of facilities where proper procedures are being followed, added Mica.
2014 National Safety School - Register Today!
The 36th annual National Agronomic, Environmental, Health & Safety School is being held on August 19 & 20, 2014 in Bloomington, Illinois at the Asmark Institute Agricenter. We encourage you to register early as this year's school is sure to fill up fast! An outstanding lineup of national speakers has been secured and with the recent events affecting our industry, it is now more important than ever to attend. Topics include information on the impact of the West Fertilizer incident on our industry, the future of ammonium nitrate, containment structure integrity, new revisions to the Worker Protection Standards and an update on the ResponsibleAg initiative. For further information, to view the agenda and to register, click here.
While in Bloomington that week, we recommend you stay an extra day to attend the Midwest AG Industries Expo (MAGIE) on August 20 & 21, 2014. It's truly one of the finest displays of "ride and buy" shows in the United States. For more information on registering for MAGIE, clickhere.
GAO Report on West, TX Released
The Government Accountability Office (GAO) released its long-awaited report entitled "Actions Needed to Improve Federal Oversight of Facilities with Ammonium Nitrate." The report was developed at the request of several members of Congress following the April 2013 explosion in West, Texas. Many of the key players in the agricultural inputs industry such as TFI, ARA, the Minnesota Crop Production Retailers Association and the Asmark Institute, were interviewed by the GAO during the development of this report. The GAO report recognized ResponsibleAg in the report. GAO's recommendations in summary:
  • The Secretary of Labor, the Administrator of EPA and the Secretary of Homeland Security, should develop and implement methods of improving data sharing among federal agencies and with states.
  • The Secretary of Labor and the Administrator of EPA should direct OSHA and EPA, respectively, to consider revising their related regulations to cover ammonium nitrate and jointly develop a plan to require high risk facilities with ammonium nitrate to assess the risks and implement safeguards to prevent accidents involving this chemical.
  • The Secretary of Labor should direct the Assistant Secretary for Occupational Safety and Health to take the following three actions:
  • -Extend OSHA's outreach to the fertilizer industry. For example, OSHA could work with the fertilizer industry to develop and disseminate informational materials related to storage of ammonium nitrate.
    -Take steps to identify high risk facilities working with ammonium nitrate and develop options to target them for inspection.
    -Consider updating regulations for the storage of ammonium nitrate taking into consideration, and as appropriate, other related standards and current practices.
In response to the report, five members of Congress, Senator Barbara Boxer (D-CA), Chair of the Senate Environment and Public Works Committee; Senator Patty Murray (D-WA); Senator Robert Casey (D-PA); Representative George Miller (D-CA); and Representative Joe Courtney (D-CT) sent a letter to President Obama urging the Administration to adopt the following recommendations based on the GAO Report:
  • Update OSHA's 43-year old Explosives and Blasting Agents standard to comport with best practices and include a prohibition on the use of wood or other combustible materials in ammonium nitrate storage facilities, as has been done in other countries.
  • Expand OSHA's PSM standard and EPA's RMP rules to cover ammonium nitrate, requiring facilities to assess risks and implement safeguards to prevent future accidents.
  • Remove the "retail facilities" exemption under OSHA's PSM standard, which precluded OSHA's PSM standard from applying to anhydrous ammonia handling processes at the West Fertilizer facility, and which would effectively bar OSHA inspections even if ammonium nitrate is subsequently covered under revisions to the PSM standard.
  • Increase OSHA compliance assistance to the fertilizer manufacturing and distribution industry on OSHA's existing standards, which cover ammonium nitrate.
  • Once information has been widely shared, OSHA should develop a targeted inspection program at higher risk ammonium nitrate storage and handling facilities.
The GAO report comes in advance of the report from the Executive Order Working Group which is due to President Obama by the end of May. Watch for upcoming information on the rollout of ResponsibleAg. Rafael Moure-Eraso, Chairperson of the Chemical Safety Board, recently commended The Fertilizer Institute and the Agricultural Retailers Association on establishing an auditing and outreach program for retailers called ResponsibleAg. "We welcome this very positive step," Dr. Moure-Eraso said, "We hope that the whole industry embraces these voluntary guidelines rather than being accepted only by the companies that choose to volunteer." Many believe ResponsibleAg is the most direct path to having a positive impact on the fallout from the West, TX incident.
ResponsibleAg Board Holds Inaugural Meeting
ResponsibleAg Inaugural Meeting
The ResponsibleAg Board met on May 6th at the offices of Asmark Institute in Owensboro, KY. Billy Pirkle was elected as Chairman. Pirkle is the Senior Director for Environmental Health and Safety for Crop Production Services. Other officers elected at the Board's inaugural meeting were Pete Mutschler of CHS as Secretary and Scott Rawlins of Wilbur-Ellis as Treasurer. Remaining board members include: Rod Wells (GROWMARK), Dave Ito (Lyman-Tremont Group), Alicia Duke (J.R. Simplot), Rosemary O'Brien (CF Industries), Tim McArdle (Brandt Consolidated) and Justin Gough (El Dorado Chemical). The Fertilizer Institute President Chris Jahn and Agricultural Retailers Association President Daren Coppock will serve as non-voting ex officio board members.
The Board is also forming a technical committee to oversee the development of specific content of assessment questionnaires, pre-qualification requirements for prospective auditors and other technical issues. This committee is expected to be named and hold its first meeting in early June.
The importance of communications to industry participants and regulators, and partnering with state agribusiness associations in outreach, was a theme woven through much of the discussion at the meeting. ResponsibleAg will be visible and will have designated representatives on site at industry gatherings including the Southwestern Fertilizer Conference, held July 19-23 in San Antonio, TX and the MAGIE show, scheduled for August 20-21st in Bloomington, IL.
U.S. EPA Region 5 Conducting RMP Audits
Kevin Runkle, Director of Regulatory Services for Illinois Fertilizer & Chemical Association, recently alerted us that an auditor from Region 5 in Chicago was inspecting ag retail facilities in Illinois. The audit involves reviewing compliance with the Risk Management Program (RMP) for anhydrous ammonia storage. With the bulk of most RMP 5-year updates due in the month of June, it seems to be a particularly odd time for an audit. Since the incident at West, TX occurred, more RMP inspections by U.S. EPA are expected. RMP auditors will be looking for the following documentation, at a minimum:
  • Current Safety Data Sheet (SDS) for anhydrous ammonia.
  • Maximum intended inventory amount of anhydrous ammonia stored on site.
  • Data plate information pertaining to the storage tanks.
  • The two most recent Hazard Reviews, including recommendations and resolution to those recommendations.
  • Current Written Operating Procedures.
  • Training records of the employees involved in operating the ammonia system.
  • Maintenance schedule for the storage tanks, including inspections, testing and equipment specifications.
  • Any anhydrous ammonia incident investigations (if applicable) conducted in the last 3 years.
  • The two most recent compliance audits, including recommendations and resolution to any deficiencies noted.
Click here to access the myRMP guidance materials developed by the Asmark Institute.
U.S. Waterways Act Passes - Provides SPCC Relief for Farms
An extensive overhaul of the nation's waterway infrastructure will begin after President Obama signs the Water Resources Reform and Development Act (WRRDA) of 2014. The agriculture sector relies heavily on the waterway system as more than 60 percent of U.S. grain and other commodity exports are transported along it. Further, 95 percent of farm exports and imports move through U.S. harbors and it will provide waterway preparations for the larger ships that will soon be able to pass through the Panama Canal.
Also included in the WRRDA are provisions that would affect the Spill Prevention, Control and Countermeasure (SPCC) rule that addresses on-farm fuel storage. The language will raise the threshold level for triggering the SPCC rule from 1,320 gallons to 6,000 gallons. This amount is temporary pending a study, after which the level may remain at 6,000 gallons or be reduced to a level between 2,500 and 6,000 gallons. Professional engineer certification would be required for a farm with an individual tank capacity greater than 10,000 gallons, aggregate capacity greater than 20,000 gallons or a history that includes a spill. Self-certification would be allowed for farms with an aggregate capacity between 6,000 gallons and 20,000 gallons.
The President is expected to sign WRRDA in the next few days. Watch for additional information in our next newsletter after the law is final and signed into effect.
Ohio Certification to Apply Fertilizer
The bill, often referred to as the Fertilizer and/or Water Quality Bill, was signed into law by Governor John Kasich recently. The Ohio Department of Agriculture (ODA) staff will begin to develop rules to implement the legislation. The most significant item in the new law is the provision requiring anyone applying fertilizer on 50 acres or more to be certified. Those who will be applying fertilizer on more than 50 acres for agricultural production will have until September 30, 2017 to obtain their fertilizer applicator certification. ODA has indicated after they finalize their rules on certification, the classes will be offered as soon as possible. ODA will be working with OSU Extension to offer the initial training.
2014 Roadcheck is June 3-5th
Roadcheck is the largest targeted enforcement program on commercial vehicles in the world, with 14 trucks or buses being inspected, on average, every minute from Canada to Mexico during the 72-hour period June 3-5th. During last year's Roadcheck, more than 73,000 truck and bus inspections were conducted. Of those inspections, a total of 47,771 were North American Standard Level I inspections, the most comprehensive roadside inspection, in which vehicles and drivers are assessed for violations of federal, state or Canadian provincial safety regulations.
DOT to Allow More Electronic Recordkeeping
Federal regulators are moving into the digital age with a new proposal to officially allow motor carriers and drivers to prepare and keep certain documents electronically. The Federal Motor Carrier Safety Administration (FMCSA) has proposed rule changes that would allow the use of electronic methods to sign, certify, generate, exchange and/or maintain many records that today are typically kept on paper.
In large part, the rule would codify agency guidance that has been in effect since January 2011, which allows carriers and drivers to use electronic methods to maintain their inspection reports, logs and other required documents. The proposed rule would apply only to those documents that FMCSA regulations require companies or individuals to retain. It would not apply to forms or other documents that must be submitted directly to the agency.
"This proposed rule would establish parity between paper and electronic documents and signatures, and expand businesses' and individuals' ability to use electronic methods to comply with FMCSA's requirements," the agency wrote. Under the proposal, companies would still have the flexibility to use paper documents if they so choose. The proposal appeared in the April 28, 2014 Federal Register.
FMCSA is accepting comments on the proposed rule until June 27, 2014. Comments may be submitted via the Federal eRulemaking Portal: www.regulations.gov, using Docket number FMCSA-2012-0376.
Before Demanding a Warrant for an OSHA Inspection: Issues to Consider
From: OSHA's Training Blog - Would you consent to a search of your entire household by a police officer who got a complaint about your barking dog, but decided he wanted to poke his nose in all your closets and drawers to determine if you were breaking any other laws? I bet most of you would not consent to the search because you are aware of your constitutional protection against unreasonable search and seizure without probable cause. Well, that same protection applies to the workplace too.
Many people do not realize that a company has the right to tell OSHA to get a warrant before being allowed to conduct an inspection on their site. In fact, the Supreme Court ruled in the case of Marshall v. Barlow's, Inc. in 1978 that OSHA may not conduct warrantless inspections without an employer's consent. OSHA may, however, inspect the site after acquiring a judicially authorized search warrant based upon administrative probable cause (like the random selection of a company covered under one of the national emphasis programs) or upon evidence of a violation (such as a valid employee complaint).
So why would a company tell OSHA they must get a warrant to inspect? Sometimes it can take several days, even weeks, for an inspector to obtain a warrant. I am also aware of a rare case or two where OSHA left after being told to go get a warrant and they never came back to inspect. However, if that is your strategy for managing safety and health for your company's employees, you probably ought to get into a different field. Also, I once saw some statistics OSHA produced that showed companies who demanded a warrant and were subsequently inspected under the warrant received more citations and stiffer monetary penalties, on average, than companies who consented to the inspection without asking for a warrant. While correlation does not imply causation, that is one fact that should be kept in mind before sending OSHA away. Click here to read more on this subject.
Finding New Ways to Bill You
FedEx Ground recently announced it will begin to charge by weight and package size beginning in 2015, instead of charging by weight alone. All ground packages will be priced according to size. In effect, that will mean a price increase on more than a third of its U.S. ground shipments. Example: Under FedEx's pricing, a 3-pound box of paper towels that's 17 inches on a side would be charged as if it weighed 30 pounds. Most analysts think United Parcel Service will follow. The two companies have historically matched price increases rather than seize the chance for a competitive advantage.
FMCSA Considering Raising Insurance Requirements
A panel of advisors to the Federal Motor Carrier Safety Administration (FMCSA) met recently to discuss the agency's plan to increase minimum requirements for liability insurance. The committee, composed of 20 voting representatives from safety advocacy, safety enforcement, labor and motor carrier industry groups, says it discussed ideas and suggestions for changes to the financial responsibility requirements for interstate truck and bus operations. The meeting was held on May 19-20, 2014, in Alexandria, VA.
In a recent report to Congress, the FMCSA said reassessing its insurance requirements is a high priority. A variety of recent studies indicate that inflation has greatly increased medical claims costs and related expenses," the agency wrote. FMCSA has determined that the current financial responsibility minimums are due for re-evaluation. The current minimum insurance levels went into effect almost 30 years ago. A recent FMCSA study found that current insurance limits do not adequately cover "catastrophic" crashes, mainly because of increased medical costs.
Employers Using Medical History in Hiring Decisions Take Notice
On April 15th, the Northern District of Illinois approved an $80,000 settlement in an Equal Employment Opportunity Commission (EEOC) lawsuit claiming an employer violated the Americans with Disabilities Act (ADA) when it reversed course on its decision to hire an applicant after learning of his prostate cancer diagnosis. Two days later, the Middle District of Florida granted summary judgment for the EEOC on its claim that an employer's revocation of an applicant's job offer based on the results of a medical examination revealing prior back surgery violated the ADA's "regarded as" disabled provision. These two recent victories for the EEOC should remind employers that rejecting a job applicant over a medical condition, even when the condition appears directly related to job performance, can expose the employer to serious legal consequences under ADA. When instituting medical examination and screening procedures, retaining sophisticated counsel with experience applying the ADA as amended and the federal regulations and EEOC enforcement guidance that define its most crucial requirements is often far less costly than responding to the violations that are otherwise likely to occur.
State Labor Law Poster Updates
Delaware - Minimum Wage - Effective June 1, 2014 The minimum wage will increase from $7.25 to $7.75 effective June 1, 2014. There will be another increase on June 1, 2015 to $8.25. Both of these dollar amounts, as well as, the current wage will be listed on the new minimum wage poster. This is a material substantive change. Click here to order.
New Mexico - Minimum Wage - Effective April 10, 2014
New Mexico revised the Minimum Wage notice (not the wage itself) to reflect new clarifications to the Overtime Exemptions among other enforcement related changes. This is a material substantive change and a new New Mexico Labor Law poster is required. Click here to order.
New Jersey - Child Labor Laws - Effective May 5, 2014
Late in April, New Jersey updated the Child Labor Law notice to include the statement: "The minimum wage rate shall not be applicable to minors under 18 years of age except as provided in N.J.A.C. 12:56-11, 12:56-13, 12:56-14 and N.J.A.C. 12:57, Wage Orders for Minors." This is a material substantive change and a new New Jersey Labor Law poster is required. Click here to order.
South Carolina - Child Labor Laws - Effective May 8, 2014
The Workers' Compensation Commission has released a new Workers' Comp notice. The new notice utilizes largely similar language to the previous notice but now explicitly requires the employer's Insurance Provider's name and contact information. This is a material substantive change and a new South Carolina Labor Law poster is required. Click here to order.
Rhode Island - Discrimination - Effective May 7, 2014
Rhode Island has updated the discrimination notice to specify that employers may not ask applicants about arrest records, and that they cannot ask about convictions until at or after the first interview (with exceptions). This is a material substantive change and a new Rhode Island Labor Law poster is required. Click here to order.
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.
Spotlight: 5-Year RMP Updates in Full Swing
Work on the 5-year RMP updates due on June 21, 2014 is progressing well and on schedule. Dustin Warder manages the RMP Program for the Asmark Institute. Dustin reports the updates have been shipped to facility management for review and return to us via Priority Mail. Each facility received a draft copy of their RMP to review and proof about 2 weeks ago. Your signature will be required for proof approval. Beginning June 10th, the certifying official for each RMP facility will need to login to the CDX website to submit their updated RMP to EPA. As always, we will document EPA's receipt of your RMP and keep the documentation on file. It will be important to watch your E-mail, open it and follow the instructions. Please contact Dustin at 270-926-4600, Ext 203 if you have questions on your RMP update.
Tennessee Farmers Cooperative Leads AN Tour
Tennessee Farmers Cooperative
Front Row (Left to right): Jeff Wanko, Process Safety Engineer, Directorate of Enforcement Programs, OSHA; Drew Landerman, TFC, David Wulf, Director, Infrastructure Security Compliance Division, Office of Infrastructure Protection, DHS; Ann Hunziker, DHS; Patti Downs, Industrial Hygienist, Office of Technological Feasibility, Directorate of Standards & Guidance, OSHA; Clark Mica, TFI and Michael Kennedy, ARA.
Back Row (Left to right): Rob Jones, Dickson Farmers Co-op, Bryan Lincoln, Economist, Office of Regulatory Analysis, Directorate of Standards & Guidance, OSHA; Paul Sullivan, Manager, Dickson Farmers Co-op; Randy Crowell, TFC; Steve Spurlin, U.S. EPA Region 4, Emergency Response Section; David Chicca, Chemical Engineer, Office of Engineering Safety, Directorate of Standards and Guidance, OSHA; Chris Jahn, TFI; David Moss, TFC and Francis Sander, Dickson Farmers Co-op.
On May 7th, Tennessee Farmers Cooperative (TFC) in conjunction with The Fertilizer Institute (TFI) hosted members of President Obama's Executive Order Working Group for a tour of two facilities that store and handle bulk fertilizer grade ammonium nitrate (AN). The tour was very successful in providing federal regulators with an opportunity to see first-hand and learn how these facilities operate safely and securely. The timing of the tour was critical as the working group is currently drafting a report to President Obama, which will include the recommendations to update and modernize current safety and security regulations at chemical facilities, including fertilizer retail facilities that store and handle AN. Their report was due to President Obama by the end of May.
The group was provided with an overview of regulatory requirements and safety and security best management practices that ensure products are stored and handled safely and securely. The first stop for the group was the ADI river terminal just outside Nashville, TN with a warehouse constructed of concrete and a wooden roof. The second stop was Dickson Farmers Co-op, a retail fertilizer facility in Dickson, TN with an all-wood structure, where General Manager Paul Sullivan and Fertilizer Plant Manager Francis Sander led the tour of the facility. Dickson Fire Marshal Robby Street was invited to discuss how the Co-op works with local first responders to prepare for a potential emergency. There was a good discussion about why wood construction is not a concern. "Wood buildings have been a focus of the federal agencies, particularly in regard to whether it's safe to store ammonium nitrate in these facilities," says Clark Mica, Vice President of Government Relations for TFI. "A majority of the tour participants had never actually been to a fertilizer retail facility that handles ammonium nitrate. We wanted to provide the regulators with an opportunity to see first-hand that fertilizer retailers can and do take the necessary steps to ensure safe handling and storage of ammonium nitrate."
Both TFC representatives and the Fire Marshal explained to the Working Group that if current regulations regarding the safe storage and handling of AN are followed, the likelihood of another West, Texas explosion occurring is minimal. TFC and the Fire Marshal explained to the Working Group that the key to preventing another accident from occurring is to ensure that the building has proper ventilation that allows for the heat to rise outside of the building and prevent an "oven effect" from occurring. Also, the group talked about the importance of maintaining a minimum distance of 30 feet or having a fire wall between the AN and any combustibles, preventing a significant heat source from being present. "The regulatory world, the media and the public are focusing on ammonium nitrate, and they're scared of it — more than they should be," says Randy Crowell, Director of Environment Health and Safety for TFC. "It's a safe product that behaves predictably when managed properly. Those outside our industry don't understand the logistics or how we handle it, so we're working to make it more acceptable."
Thanks to Randy Crowell with TFC and Clark Mica with TFI for organizing and planning this unique tour. The TFC facilities were chosen by TFI as "good examples" of facilities where proper procedures are being followed, added Mica.
2014 National Safety School - Register Today!
The 36th annual National Agronomic, Environmental, Health & Safety School is being held on August 19 & 20, 2014 in Bloomington, Illinois at the Asmark Institute Agricenter. We encourage you to register early as this year's school is sure to fill up fast! An outstanding lineup of national speakers has been secured and with the recent events affecting our industry, it is now more important than ever to attend. Topics include information on the impact of the West Fertilizer incident on our industry, the future of ammonium nitrate, containment structure integrity, new revisions to the Worker Protection Standards and an update on the ResponsibleAg initiative. For further information, to view the agenda and to register, click here.
While in Bloomington that week, we recommend you stay an extra day to attend the Midwest AG Industries Expo (MAGIE) on August 20 & 21, 2014. It's truly one of the finest displays of "ride and buy" shows in the United States. For more information on registering for MAGIE, clickhere.
GAO Report on West, TX Released
The Government Accountability Office (GAO) released its long-awaited report entitled "Actions Needed to Improve Federal Oversight of Facilities with Ammonium Nitrate." The report was developed at the request of several members of Congress following the April 2013 explosion in West, Texas. Many of the key players in the agricultural inputs industry such as TFI, ARA, the Minnesota Crop Production Retailers Association and the Asmark Institute, were interviewed by the GAO during the development of this report. The GAO report recognized ResponsibleAg in the report. GAO's recommendations in summary:
  • The Secretary of Labor, the Administrator of EPA and the Secretary of Homeland Security, should develop and implement methods of improving data sharing among federal agencies and with states.
  • The Secretary of Labor and the Administrator of EPA should direct OSHA and EPA, respectively, to consider revising their related regulations to cover ammonium nitrate and jointly develop a plan to require high risk facilities with ammonium nitrate to assess the risks and implement safeguards to prevent accidents involving this chemical.
  • The Secretary of Labor should direct the Assistant Secretary for Occupational Safety and Health to take the following three actions:
  • -Extend OSHA's outreach to the fertilizer industry. For example, OSHA could work with the fertilizer industry to develop and disseminate informational materials related to storage of ammonium nitrate.
    -Take steps to identify high risk facilities working with ammonium nitrate and develop options to target them for inspection.
    -Consider updating regulations for the storage of ammonium nitrate taking into consideration, and as appropriate, other related standards and current practices.
In response to the report, five members of Congress, Senator Barbara Boxer (D-CA), Chair of the Senate Environment and Public Works Committee; Senator Patty Murray (D-WA); Senator Robert Casey (D-PA); Representative George Miller (D-CA); and Representative Joe Courtney (D-CT) sent a letter to President Obama urging the Administration to adopt the following recommendations based on the GAO Report:
  • Update OSHA's 43-year old Explosives and Blasting Agents standard to comport with best practices and include a prohibition on the use of wood or other combustible materials in ammonium nitrate storage facilities, as has been done in other countries.
  • Expand OSHA's PSM standard and EPA's RMP rules to cover ammonium nitrate, requiring facilities to assess risks and implement safeguards to prevent future accidents.
  • Remove the "retail facilities" exemption under OSHA's PSM standard, which precluded OSHA's PSM standard from applying to anhydrous ammonia handling processes at the West Fertilizer facility, and which would effectively bar OSHA inspections even if ammonium nitrate is subsequently covered under revisions to the PSM standard.
  • Increase OSHA compliance assistance to the fertilizer manufacturing and distribution industry on OSHA's existing standards, which cover ammonium nitrate.
  • Once information has been widely shared, OSHA should develop a targeted inspection program at higher risk ammonium nitrate storage and handling facilities.
The GAO report comes in advance of the report from the Executive Order Working Group which is due to President Obama by the end of May. Watch for upcoming information on the rollout of ResponsibleAg. Rafael Moure-Eraso, Chairperson of the Chemical Safety Board, recently commended The Fertilizer Institute and the Agricultural Retailers Association on establishing an auditing and outreach program for retailers called ResponsibleAg. "We welcome this very positive step," Dr. Moure-Eraso said, "We hope that the whole industry embraces these voluntary guidelines rather than being accepted only by the companies that choose to volunteer." Many believe ResponsibleAg is the most direct path to having a positive impact on the fallout from the West, TX incident.
ResponsibleAg Board Holds Inaugural Meeting
ResponsibleAg Inaugural Meeting
The ResponsibleAg Board met on May 6th at the offices of Asmark Institute in Owensboro, KY. Billy Pirkle was elected as Chairman. Pirkle is the Senior Director for Environmental Health and Safety for Crop Production Services. Other officers elected at the Board's inaugural meeting were Pete Mutschler of CHS as Secretary and Scott Rawlins of Wilbur-Ellis as Treasurer. Remaining board members include: Rod Wells (GROWMARK), Dave Ito (Lyman-Tremont Group), Alicia Duke (J.R. Simplot), Rosemary O'Brien (CF Industries), Tim McArdle (Brandt Consolidated) and Justin Gough (El Dorado Chemical). The Fertilizer Institute President Chris Jahn and Agricultural Retailers Association President Daren Coppock will serve as non-voting ex officio board members.
The Board is also forming a technical committee to oversee the development of specific content of assessment questionnaires, pre-qualification requirements for prospective auditors and other technical issues. This committee is expected to be named and hold its first meeting in early June.
The importance of communications to industry participants and regulators, and partnering with state agribusiness associations in outreach, was a theme woven through much of the discussion at the meeting. ResponsibleAg will be visible and will have designated representatives on site at industry gatherings including the Southwestern Fertilizer Conference, held July 19-23 in San Antonio, TX and the MAGIE show, scheduled for August 20-21st in Bloomington, IL.
U.S. EPA Region 5 Conducting RMP Audits
Kevin Runkle, Director of Regulatory Services for Illinois Fertilizer & Chemical Association, recently alerted us that an auditor from Region 5 in Chicago was inspecting ag retail facilities in Illinois. The audit involves reviewing compliance with the Risk Management Program (RMP) for anhydrous ammonia storage. With the bulk of most RMP 5-year updates due in the month of June, it seems to be a particularly odd time for an audit. Since the incident at West, TX occurred, more RMP inspections by U.S. EPA are expected. RMP auditors will be looking for the following documentation, at a minimum:
  • Current Safety Data Sheet (SDS) for anhydrous ammonia.
  • Maximum intended inventory amount of anhydrous ammonia stored on site.
  • Data plate information pertaining to the storage tanks.
  • The two most recent Hazard Reviews, including recommendations and resolution to those recommendations.
  • Current Written Operating Procedures.
  • Training records of the employees involved in operating the ammonia system.
  • Maintenance schedule for the storage tanks, including inspections, testing and equipment specifications.
  • Any anhydrous ammonia incident investigations (if applicable) conducted in the last 3 years.
  • The two most recent compliance audits, including recommendations and resolution to any deficiencies noted.
Click here to access the myRMP guidance materials developed by the Asmark Institute.
U.S. Waterways Act Passes - Provides SPCC Relief for Farms
An extensive overhaul of the nation's waterway infrastructure will begin after President Obama signs the Water Resources Reform and Development Act (WRRDA) of 2014. The agriculture sector relies heavily on the waterway system as more than 60 percent of U.S. grain and other commodity exports are transported along it. Further, 95 percent of farm exports and imports move through U.S. harbors and it will provide waterway preparations for the larger ships that will soon be able to pass through the Panama Canal.
Also included in the WRRDA are provisions that would affect the Spill Prevention, Control and Countermeasure (SPCC) rule that addresses on-farm fuel storage. The language will raise the threshold level for triggering the SPCC rule from 1,320 gallons to 6,000 gallons. This amount is temporary pending a study, after which the level may remain at 6,000 gallons or be reduced to a level between 2,500 and 6,000 gallons. Professional engineer certification would be required for a farm with an individual tank capacity greater than 10,000 gallons, aggregate capacity greater than 20,000 gallons or a history that includes a spill. Self-certification would be allowed for farms with an aggregate capacity between 6,000 gallons and 20,000 gallons.
The President is expected to sign WRRDA in the next few days. Watch for additional information in our next newsletter after the law is final and signed into effect.
Ohio Certification to Apply Fertilizer
The bill, often referred to as the Fertilizer and/or Water Quality Bill, was signed into law by Governor John Kasich recently. The Ohio Department of Agriculture (ODA) staff will begin to develop rules to implement the legislation. The most significant item in the new law is the provision requiring anyone applying fertilizer on 50 acres or more to be certified. Those who will be applying fertilizer on more than 50 acres for agricultural production will have until September 30, 2017 to obtain their fertilizer applicator certification. ODA has indicated after they finalize their rules on certification, the classes will be offered as soon as possible. ODA will be working with OSU Extension to offer the initial training.
2014 Roadcheck is June 3-5th
Roadcheck is the largest targeted enforcement program on commercial vehicles in the world, with 14 trucks or buses being inspected, on average, every minute from Canada to Mexico during the 72-hour period June 3-5th. During last year's Roadcheck, more than 73,000 truck and bus inspections were conducted. Of those inspections, a total of 47,771 were North American Standard Level I inspections, the most comprehensive roadside inspection, in which vehicles and drivers are assessed for violations of federal, state or Canadian provincial safety regulations.
DOT to Allow More Electronic Recordkeeping
Federal regulators are moving into the digital age with a new proposal to officially allow motor carriers and drivers to prepare and keep certain documents electronically. The Federal Motor Carrier Safety Administration (FMCSA) has proposed rule changes that would allow the use of electronic methods to sign, certify, generate, exchange and/or maintain many records that today are typically kept on paper.
In large part, the rule would codify agency guidance that has been in effect since January 2011, which allows carriers and drivers to use electronic methods to maintain their inspection reports, logs and other required documents. The proposed rule would apply only to those documents that FMCSA regulations require companies or individuals to retain. It would not apply to forms or other documents that must be submitted directly to the agency.
"This proposed rule would establish parity between paper and electronic documents and signatures, and expand businesses' and individuals' ability to use electronic methods to comply with FMCSA's requirements," the agency wrote. Under the proposal, companies would still have the flexibility to use paper documents if they so choose. The proposal appeared in the April 28, 2014 Federal Register.
FMCSA is accepting comments on the proposed rule until June 27, 2014. Comments may be submitted via the Federal eRulemaking Portal: www.regulations.gov, using Docket number FMCSA-2012-0376.
Before Demanding a Warrant for an OSHA Inspection: Issues to Consider
From: OSHA's Training Blog - Would you consent to a search of your entire household by a police officer who got a complaint about your barking dog, but decided he wanted to poke his nose in all your closets and drawers to determine if you were breaking any other laws? I bet most of you would not consent to the search because you are aware of your constitutional protection against unreasonable search and seizure without probable cause. Well, that same protection applies to the workplace too.
Many people do not realize that a company has the right to tell OSHA to get a warrant before being allowed to conduct an inspection on their site. In fact, the Supreme Court ruled in the case of Marshall v. Barlow's, Inc. in 1978 that OSHA may not conduct warrantless inspections without an employer's consent. OSHA may, however, inspect the site after acquiring a judicially authorized search warrant based upon administrative probable cause (like the random selection of a company covered under one of the national emphasis programs) or upon evidence of a violation (such as a valid employee complaint).
So why would a company tell OSHA they must get a warrant to inspect? Sometimes it can take several days, even weeks, for an inspector to obtain a warrant. I am also aware of a rare case or two where OSHA left after being told to go get a warrant and they never came back to inspect. However, if that is your strategy for managing safety and health for your company's employees, you probably ought to get into a different field. Also, I once saw some statistics OSHA produced that showed companies who demanded a warrant and were subsequently inspected under the warrant received more citations and stiffer monetary penalties, on average, than companies who consented to the inspection without asking for a warrant. While correlation does not imply causation, that is one fact that should be kept in mind before sending OSHA away. Click here to read more on this subject.
Finding New Ways to Bill You
FedEx Ground recently announced it will begin to charge by weight and package size beginning in 2015, instead of charging by weight alone. All ground packages will be priced according to size. In effect, that will mean a price increase on more than a third of its U.S. ground shipments. Example: Under FedEx's pricing, a 3-pound box of paper towels that's 17 inches on a side would be charged as if it weighed 30 pounds. Most analysts think United Parcel Service will follow. The two companies have historically matched price increases rather than seize the chance for a competitive advantage.
FMCSA Considering Raising Insurance Requirements
A panel of advisors to the Federal Motor Carrier Safety Administration (FMCSA) met recently to discuss the agency's plan to increase minimum requirements for liability insurance. The committee, composed of 20 voting representatives from safety advocacy, safety enforcement, labor and motor carrier industry groups, says it discussed ideas and suggestions for changes to the financial responsibility requirements for interstate truck and bus operations. The meeting was held on May 19-20, 2014, in Alexandria, VA.
In a recent report to Congress, the FMCSA said reassessing its insurance requirements is a high priority. A variety of recent studies indicate that inflation has greatly increased medical claims costs and related expenses," the agency wrote. FMCSA has determined that the current financial responsibility minimums are due for re-evaluation. The current minimum insurance levels went into effect almost 30 years ago. A recent FMCSA study found that current insurance limits do not adequately cover "catastrophic" crashes, mainly because of increased medical costs.
Employers Using Medical History in Hiring Decisions Take Notice
On April 15th, the Northern District of Illinois approved an $80,000 settlement in an Equal Employment Opportunity Commission (EEOC) lawsuit claiming an employer violated the Americans with Disabilities Act (ADA) when it reversed course on its decision to hire an applicant after learning of his prostate cancer diagnosis. Two days later, the Middle District of Florida granted summary judgment for the EEOC on its claim that an employer's revocation of an applicant's job offer based on the results of a medical examination revealing prior back surgery violated the ADA's "regarded as" disabled provision. These two recent victories for the EEOC should remind employers that rejecting a job applicant over a medical condition, even when the condition appears directly related to job performance, can expose the employer to serious legal consequences under ADA. When instituting medical examination and screening procedures, retaining sophisticated counsel with experience applying the ADA as amended and the federal regulations and EEOC enforcement guidance that define its most crucial requirements is often far less costly than responding to the violations that are otherwise likely to occur.
State Labor Law Poster Updates
Delaware - Minimum Wage - Effective June 1, 2014 The minimum wage will increase from $7.25 to $7.75 effective June 1, 2014. There will be another increase on June 1, 2015 to $8.25. Both of these dollar amounts, as well as, the current wage will be listed on the new minimum wage poster. This is a material substantive change. Click here to order.
New Mexico - Minimum Wage - Effective April 10, 2014
New Mexico revised the Minimum Wage notice (not the wage itself) to reflect new clarifications to the Overtime Exemptions among other enforcement related changes. This is a material substantive change and a new New Mexico Labor Law poster is required. Click here to order.
New Jersey - Child Labor Laws - Effective May 5, 2014
Late in April, New Jersey updated the Child Labor Law notice to include the statement: "The minimum wage rate shall not be applicable to minors under 18 years of age except as provided in N.J.A.C. 12:56-11, 12:56-13, 12:56-14 and N.J.A.C. 12:57, Wage Orders for Minors." This is a material substantive change and a new New Jersey Labor Law poster is required. Click here to order.
South Carolina - Child Labor Laws - Effective May 8, 2014
The Workers' Compensation Commission has released a new Workers' Comp notice. The new notice utilizes largely similar language to the previous notice but now explicitly requires the employer's Insurance Provider's name and contact information. This is a material substantive change and a new South Carolina Labor Law poster is required. Click here to order.
Rhode Island - Discrimination - Effective May 7, 2014
Rhode Island has updated the discrimination notice to specify that employers may not ask applicants about arrest records, and that they cannot ask about convictions until at or after the first interview (with exceptions). This is a material substantive change and a new Rhode Island Labor Law poster is required. Click here to order.
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.